Memo Details Barr’s Justifications for Clearing Trump of Obstruction

 

Memo Details Barr’s Justifications for Clearing Trump of Obstruction

 

A document released by court order showed how in 2019, Justice Department lawyers argued that President Donald J. Trump had not illegally impeded the Russia investigation.

 

Mark MazzettiMichael S. SchmidtCharlie Savage

By Mark Mazzetti, Michael S. Schmidt and Charlie Savage

Aug. 24, 2022

https://www.nytimes.com/2022/08/24/us/politics/barr-trump-memo-mueller.html

 

WASHINGTON — The Biden administration released a Trump-era memorandum on Wednesday that provided the most detailed look yet at the Justice Department’s legal reasoning for proclaiming that President Donald J. Trump could not be charged with obstruction of justice over his efforts to impede the Russia investigation.

 

The March 2019 memo, delivered to the attorney general at the time, William P. Barr, concluded that none of Mr. Trump’s actions chronicled in the report by the special counsel, Robert S. Mueller III — from firing his F.B.I. director to pressuring the White House counsel to recant his testimony to prosecutors — could be shown beyond a reasonable doubt to be criminal acts.

 

Many of these actions, two senior Justice Department officials wrote, should be interpreted by an inference that Mr. Trump “reasonably believed” the investigations were impeding his government agenda, meaning he lacked the corrupt intent necessary to prosecute him for obstruction.

 

The Justice Department under both the Trump and the Biden administrations fought unsuccessfully in court to avoid releasing the full text of the memo, which was the subject of a Freedom of Information Act lawsuit by the government watchdog group Citizens for Responsibility and Ethics in Washington.

 

After losing in court on Friday, the Justice Department had the option to appeal the case. But the department’s senior leadership decided to release the document, according to a senior official in federal law enforcement. The leadership never opposed airing its contents, but had contested its release on narrower legal grounds, the person added.

 

The memo’s release in 2022 — long after the Mueller investigation and its aftermath — is largely significant for historical reasons. While Mr. Barr immediately pronounced Mr. Trump cleared of any obstruction of justice offense, he never discussed in detail his rationale for rejecting many of the episodes in the Mueller report.

 

The memo to Mr. Barr was signed by Steven A. Engel, the head of the Office of Legal Counsel, and Ed O’Callaghan, the principal associate deputy attorney general who had been the main liaison between the Justice Department and the special counsel’s office.

 

Outside specialists in white-collar law greeted the disclosure of the memo with some skepticism, describing its tone as essentially that of a defense lawyer in a trial rather than an even-handed weighing of the law and evidence.

 

“Not impressed,” said Samuel Buell, a Duke University law professor and former federal prosecutor. “It reads more like a defense lawyer’s brief than a full and balanced analysis citing the legal authorities.”

 

Among the most significant episodes of potential obstruction described in the Mueller report was Mr. Trump’s dangling of a potential pardon before witnesses like Paul Manafort, his former campaign chairman, while encouraging him not to cooperate with investigators. Mr. Manafort was convicted of financial crimes, and Mr. Trump pardoned him late in his administration.

 

Numerous inquiries. Since former President Donald J. Trump left office, he has been facing several civil and criminal investigations into his business dealings and political activities. Here is a look at some notable cases:

 

Classified documents inquiry. The F.B.I. searched Mr. Trump’s Florida home as part of the Justice Department’s investigation into his handling of classified materials. The inquiry is focused on documents that Mr. Trump had brought with him to Mar-a-Lago, his private club and residence, when he left the White House.

 

Jan. 6 investigations. In a series of public hearings, the House select committee investigating the Jan. 6 attack laid out a comprehensive narrative of Mr. Trump’s efforts to overturn the 2020 election. This evidence could allow federal prosecutors, who are conducting a parallel criminal investigation, to indict Mr. Trump.

 

Georgia election interference case. Fani T. Willis, the Atlanta-area district attorney, has been leading a wide-ranging criminal investigation into the efforts of Mr. Trump and his allies to overturn his 2020 election loss in Georgia. This case could pose the most immediate legal peril for the former president and his associates.

 

New York State civil inquiry. Letitia James, the New York attorney general, has been conducting a civil investigation into Mr. Trump and his family business. The case is focused on whether Mr. Trump’s statements about the value of his assets were part of a pattern of fraud or were simply Trumpian showmanship.

 

Manhattan criminal case. Alvin L. Bragg, the Manhattan district attorney, has been investigating whether Mr. Trump or his family business intentionally submitted false property values to potential lenders. But the inquiry faded from view after signs emerged suggesting that Mr. Trump was unlikely to be indicted.

 

The memo to Mr. Barr never mentioned the word “pardon,” instead characterizing that and similar episodes as Mr. Trump merely praising or condemning witnesses based on whether they cooperated with investigators. The memo argues that this could be interpreted as Mr. Trump merely not wanting the witnesses to lie and make up false claims against him.

 

To back up its assessments, the memo repeatedly stresses that Mr. Mueller’s investigation did not find sufficient evidence to charge any Trump campaign associate in a conspiracy with Russia.

 

“Once again, this conclusion is buttressed by the absence of any clear evidence that these witnesses had information that would prove the president had committed a crime,” Mr. Engel and Mr. O’Callaghan wrote.

 

Ryan Goodman, a New York University law professor, called the memo a “get out of jail free” card, adding: “It’s hard to stomach a memo that amounts to saying someone is not guilty of obstruction for deliberately trying to induce witnesses not to cooperate with law enforcement in a major criminal investigation.”

 

The Biden administration released an unredacted memorandum from March 2019 that described the Justice Department’s legal reasoning for declining to charge President Donald J. Trump in the Russia investigation.

 

Mr. Barr has denounced the Russia investigation, saying it was cooked up by Mr. Trump’s opponents to upend his presidency and that Mr. Trump was well within his rights to push back against the sprawling inquiry and the negative media attention that came with it.

 

In his report, Mr. Mueller detailed numerous cases of possible obstruction, but chose not to render a judgment. Under Justice Department policy, he wrote, the department cannot indict a sitting president and therefore it would be unfair to accuse Mr. Trump of breaking the law while he was in office.

 

The memo shows that senior Justice Department officials seemed to be prepared to knock down arguments that Mr. Trump had obstructed justice. It is dated March 24, only two days after the special counsel’s office delivered a report of more than 400 pages to the attorney general.

 

“If the president were to perjure himself, tamper with witness testimony or corruptly destroy evidence, then such actions would violate well-established law,” the memo stated. “But we do not believe that any of the actions described in the report would meet such a standard.”

 

The Mueller report itself raised doubts about whether some of the highest-profile acts that could be considered potential obstruction of justice — like the firing of the F.B.I. director, James B. Comey Jr. — met all the required elements of that crime.

 

But the report’s analysis put greater emphasis on Mr. Trump’s attempts to have Mr. Mueller fired or the investigation’s scope gutted — which were thwarted when aides refused to carry out his instructions — and then his attempt to get his White House counsel, Donald F. McGahn II, to deny that Mr. Trump had pushed him to oust the special prosecutor.

 

The memo to Mr. Barr dismissed both aspects. While it acknowledged that an unsuccessful attempt to commit a crime is itself a criminal act, it stressed that Mr. Trump had backed down when his aides refused to carry out his orders. That could make it harder, it said, for prosecutors to prove he had the necessary criminal intent to charge him.

 

Legal specialists have pointed to Mr. Trump’s attempt to force Mr. McGahn to write a memo denying that Mr. Trump had pushed him to have Mr. Mueller fired as arguably an attempt to falsify written evidence that would undermine Mr. McGahn’s ability to testify as a witness in any later trial. Moreover, while Mr. Trump also wanted Mr. McGahn to issue a public statement, the written denial the president was seeking was not intended for release.

 

The memo does not address those arguments. Rather, it characterizes Mr. McGahn’s recollection of the president’s directions as ambiguous, apparently because Mr. Trump did not use the word “fire.” (According to Mr. McGahn’s sworn testimony to Congress, Mr. Trump called him at home and said, “Mueller has to go” and “call me back when you do it.”)

 

Glenn Thrush contributed reporting.

Mark Mazzetti is a Washington investigative correspondent, and a two-time Pulitzer Prize winner. He is the author of "The Way of the Knife: the C.I.A, a Secret Army, and a War at the Ends of the Earth."  @MarkMazzettiNYT

 

Michael S. Schmidt is a Washington correspondent covering national security and federal investigations. He was part of two teams that won Pulitzer Prizes in 2018 — one for reporting on workplace sexual harassment and the other for coverage of President Trump and his campaign’s ties to Russia. @NYTMike

 

Charlie Savage is a Washington-based national security and legal policy correspondent. A recipient of the Pulitzer Prize, he previously worked at The Boston Globe and The Miami Herald. His most recent book is “Power Wars: The Relentless Rise of Presidential Authority and Secrecy.” @charlie_savage • Facebook