The Justice Department late Monday night released part of a key internal document used in 2019 to justify not charging President Donald Trump with obstruction, but also signaled it would fight a judge’s effort to make the entire document public.
The filing comes after a federal judge excoriated former U.S. attorney general William P. Barr — and the Justice Department more broadly — for their explanations of how and why it decided not to pursue a criminal case against Trump over possible obstruction of the investigation by special counsel Robert S. Mueller III.
The Justice Department filing is likely to both fuel and frustrate Trump’s biggest critics, particularly Democrats who have long argued that Barr stage-managed an exoneration of Trump after Mueller submitted a 448-page report into his findings about his investigation into whether the 2016 Trump campaign conspired with Russia to interfere in the election, and whether Trump tried to obstruct that investigation.
The central document at issue is a March 2019 memo written by two senior Justice Department officials arguing that aside from important constitutional reasons not to accuse the president of a crime, the evidence gathered by Mueller did not rise to the level of a prosecutable case, even if Trump were not president.
Earlier this month, U.S. District Judge Amy Berman Jackson issued a scathing opinion saying that she had read the memo and that it showed that Barr was disingenuous when he cited the document as key to his conclusion that Trump had not broken the law. On Tuesday, Jackson ordered the public release of the still-secret portions of her opinion discussing the Justice Department's Trump memo.
In that ruling, the judge also accused department lawyers of misleading her about the internal discussions that surrounded the memo and ordered the memo be released, though she gave the government several weeks to decide whether to appeal.
As that deadline neared, the government filed papers seeking both to appeal the ruling and to appease the court by offering a partially unredacted version of the document — making the first two pages public, while filing an appeal to try to keep the other half-dozen pages secret.
“In retrospect, the government acknowledges that its briefs could have been clearer, and it deeply regrets the confusion that caused. But the government’s counsel and declarants did not intend to mislead the Court,” the Justice Department lawyers wrote in asking the judge to keep the rest of the document under seal while they appeal her ruling.
The parts of the memo released Monday night offer a deeper glimpse into why the judge was angry — and indicate that the decision not to accuse Trump of a crime had been the subject of previous conversations among Justice Department leaders.
The memo written by Steven A. Engel, then the head of the department’s Office of Legal Counsel (OLC), and Edward O’Callaghan, then a senior department official closely involved in supervising the Mueller investigation, was addressed to Barr, then the U.S. attorney general.
“Over the course of the Special Counsel’s investigation, we have previously discussed these issues within the Department among ourselves, with the Deputy Attorney General, and with you since your appointment, as well as with the Special Counsel and his staff. Our conclusions are the product of those discussions, as well as our review of the Report,” the lawyers wrote in the newly public section.