To my absolute surprise, the Justice Department agreed to the court-ordered release of the Barr memo on the Mueller Report, the document explaining the reasoning behind why former Trump AG Bill Barr refused to act on the Mueller Report's conclusions.
The Justice Department has released a long-sought legal memo arguing that then-President Donald Trump’s actions during special counsel Robert Mueller’s Trump-Russia investigation did not warrant prosecution for obstruction of justice, even if a president was susceptible to criminal charges while in office.
In the nine-page memo disclosed Wednesday, two of the most senior officials in the Justice Department advised then-Attorney General William Barr that Trump’s threats to fire Mueller and his various public and private outbursts against witnesses he viewed as hostile or unhelpful to him didn’t amount to the sort of case prosecutors would bring under their established standards.
“Having reviewed the Report in light of the governing legal principles, and the Principles of Federal Prosecution, we conclude that none of those instances would warrant a prosecution for obstruction of justice, without regard to the constitutional constraint on bringing such an action against a sitting president,” the assistant attorney general for the Office of Legal Counsel, Steven Engel, and Principal Associate Deputy Attorney General Edward O’Callaghan wrote in the March 24, 2019, memo.
The Justice Department fought release of the memo for years, arguing that it was part of a deliberative process advising Barr on what to do in response to Mueller’s report. However, judges concluded that at the time the memo was written, Barr had already decided not to charge Trump, so the issues hashed out in the memo were theoretical and not linked to any pending decision.
Citizens for Responsibility and Ethics in Washington, a liberal watchdog group, filed suit under the Freedom of Information Act three years ago in an effort to make the memo public.
The Justice Department lost the first round in the access case in front of a District Court judge, who ruled that the agency’s claims that the memo was part of some kind of charging decision was “disingenuous” because that decision had already been made.
On appeal, department lawyers changed course and argued that the memo helped shape the public statements Barr would give to explain why he concluded the evidence was insufficient to support a criminal charge — even if Trump were not president.
However, a D.C. Circuit Court of Appeals panel ruled last week that argument about the memo being part of deliberations around a communications effort was surfaced too belatedly to be considered.
The Justice Department had the option to ask the full bench of the D.C. Circuit to rehear the case or to seek review at the Supreme Court, but officials indicated Wednesday that they’d decided to pass up those options.
In the memo that triggered the disclosure fight, Engel and O’Callaghan concluded that Trump’s conduct primarily reflected a frustration with the Mueller probe and what he perceived to be the politics behind it, as well as news reports they said Trump genuinely believed were flawed. They also suggested that Trump’s exhortations to some of his top allies against “flipping” were meant to prevent them from delivering false testimony — not to conceal the truth.
The officials repeatedly underscored that Mueller had not found sufficient evidence to charge any underlying crime, which they said weighed against the possibility that Trump had violated the obstruction statutes.
“In the absence of an underlying offense, the most compelling inference in evaluating the President’s conduct is that he reasonably believed that the Special Counsel’s investigation was interfering with his governing agenda,” Engel and O’Callaghan wrote.
Engel would later become a key point of resistance to Trump’s effort to use the Justice Department to help subvert the 2020 election. Engel was one of three Trump-era Justice Department witnesses to testify at a public hearing of the Jan. 6 select committee and discussed his threat to resign, along with other top department officials, if Trump had gone through with a plan to replace the department’s leadership with figures who would support his attempts to stay in power.
Engel of course testified before the January 6th Committee publicly in June.
Engel was a key witness at a pivotal meeting on Jan. 3, 2021, at the White House where Trump held a reality TV-show style contest over whether to fire acting attorney general Jeffery Rosen and install someone more amenable to run the Justice Department to support his election fraud claims. Rosen replaced former Attorney General William Barr.
The Senate Judiciary Committee, in an earlier investigation, found Engel told Trump at the meeting that he and other top officials would resign if he fired Rosen.
Some context: In a series of emails released by Democrats on the House Oversight Committee earlier this month, Richard Donoghue, the former deputy attorney general, told Engel that he wanted to meet with him "about some antics that could potentially end up on your radar," signaling there was at least some concern that the Office of Legal Counsel would have to weigh in on potential issues.
The emails also included correspondence with Jeffery Clark, a Justice Department lawyer who tried to convince Trump to remove Rosen and use the DOJ to undo Georgia's election results, which The New York Times reported in January. In the Jan. 1 email, Meadows asked Rosen to have Clark look into the alleged signature issues in Georgia, ahead of a meeting on Jan. 3 in which Trump heard directly from Clark and Rosen before ultimately choosing not to remove Rosen.
Given Engel's cooperation with the Committee, for the DoJ to continue to protect the memo Engels wrote declaring that Trump committed no criminal activity as "internal deliberation material" was both legally and morally indefensible.
We'll see.
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