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Memo sheds light on Barr decision not to prosecute Trump

Memo sheds light on Barr decision not to prosecute Trump

Disclosure of the full Justice Department memo addressed to the Trump attorney general came after a federal judge refused to accept redactions.

  • According to the memo, the two former top Justice Department officials viewed Mueller’s obstruction theory as not only 'novel' but also 'unusual.'
    Shane T. McCoy/U.S. MarshalsAccording to the memo, the two former top Justice Department officials viewed Mueller’s obstruction theory as not only 'novel' but also 'unusual.'

Complying with a court order, the Department of Justice on Wednesday fully released its 2019 memo that advised then-Attorney General William Barr about next steps after special counsel Robert Mueller concluded his investigation of Russian meddling in the presidential election.

"It would be rare for federal prosecutors to bring an obstruction prosecution that did not itself arise out of a proceeding related to a separate crime," Justice Department officials Steven Engel and Ed O'Callaghan wrote in the memo dated March, 24, 2019, recommending that Barr not prosecute Trump over allegations that he obstructed the Russia probe.

At the time, Barr was in sole possession of Mueller's findings. Two days after receiving the memo, Barr reported to Congress that Mueller had left it for him to determine whether then-President Donald Trump’s interference with the investigation amounted to obstruction of justice. Barr deemed the evidence insufficient and said Trump should not be charged.

The nonprofit Citizens for Responsibility and Ethics (CREW) sued under the Freedom of Information Act to make the memo public. Last week, the D.C. Circuit affirmed that the Department of Justice had to release the memo, finding the lower court’s decision in the case was narrow and based on the Department of Justice’s failure to show the memo played a role in decisions of government officials. 

CREW said Wednesday "the memo supports the chilling conclusion that any president can interfere with any investigation if they believe it could damage them politically."

"It is clear why Barr did not want the public to see it," the group said in a statement.

According to the memo, the two former top Justice Department officials viewed Mueller’s obstruction theory as not only “novel” but also “unusual” because part of the special counsel’s report concluded that evidence developed “was not sufficient to charge that any member of the Trump Campaign [including the President] conspired or coordinated with representatives of the Russian government to interfere in the 2016 election.”

"In every successful obstruction case cited in the (Mueller) Report, the corrupt acts were undertaken to prevent the investigation and prosecution of a separate crime," Barr's aides wrote in the memo. "The existence of such an offense is not a necessary element to proving an obstruction charge, but the absence of underlying guilt is relevant and powerful evidence."

In addition to the rarity of such a charge being brought against a then-sitting president, the memo states that Trump’s “potentially obstructive conduct amounted to attempts to modify the process under which the Special Counsel investigation progressed, rather than efforts to impair or intentionally alter evidence … that would negatively impact the Special Counsel’s ability to obtain and develop evidence.” 

The former president’s request to then-FBI Director James Comey in 2017 to let go of the criminal investigation of Trump's former top adviser, Michael Flynn, and Trump’s subsequent firing of Comey did not break the law, according to Barr’s aides. 

"The President's expression of 'hope' that Comey would 'let this go' did not clearly direct a particular action in the Flynn investigation, and Comey did not react at the time as though he had received a direct order from the President,” according to the memo. 

The special counsel said it “reached no conclusion” as to whether Trump violated any criminal law based on its review of the Mueller report. 

CREW said Wednesday that the memo paints a “breathtakingly generous view of the law and facts for Donald Trump.” 

“It significantly twists the facts and the law to benefit Donald Trump and does not comport with a serious reading of the law of obstruction of justice or the facts as found by Special Counsel Mueller,” the organization said. 

The memo, according to CREW, is “premised on the fact that there was no underlying criminal conduct, which is not what Mueller found, and waves its hand at there being no exact precedent to compare it to.”

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