A portion of a memo cited by former Attorney General William Barr as a reason not to pursue obstruction of justice charges against former President Donald Trump was released Monday night, but the Justice Department said it is appealing a judge's order to disclose the rest of it.
Barr cited the 2019 memo by the department's Office of Legal Counsel as a reason for not pursuing the charges after he received special counsel Robert Mueller's report on Russian interference in the 2016 presidential election and any links to the Trump campaign.
Mueller's report said his team was unable to reach a judgment on whether the president committed obstruction of justice, but the Office of Legal Counsel's memo said the department should reach a conclusion anyway, and recommended that the evidence would not support prosecution.
"Because the department brings charges against an individual only where the admissible evidence would support the proof of such charges beyond a reasonable doubt, any uncertainty concerning the facts or the law underlying a proposed prosecution ultimately must be resolved in favor of the individual," whether that person is the president or someone else, the memo said.
When the left-leaning watchdog group Citizens for Responsibility and Ethics in Washington sought the memo under the Freedom of Information Act, the Justice Department argued it wasn't required to release the document under an exception covering materials intended to aid senior officials in making decisions.
U.S. District Court Judge Amy Berman Jackson, however, blasted the government for taking that position, saying the memo it did not fit the exemption for "deliberative" documents. In a ruling earlier this month, she said Barr had already decided the Constitution forbids indicting a sitting president before the memo was written. The document, she said, was instead meant to guide him on "getting a jump on public relations" in explaining his decision, and therefore must be released.
In a brief order filed Tuesday, Jackson repeated her conclusion that the Justice Department's argument for withholding the memo misstated the issue.
The memo made clear that after Barr received the Mueller report, "the attorney general was considering 'electing' to opine on the question of whether the facts in the special counsel's report would support a criminal prosecution, determining 'what, if anything, to say to the public about that question' before releasing the report to the public, and doing so with the understanding that any actual prosecution was constitutionally foreclosed," she wrote.
The Justice Department, however, said the memo was not intended to conclude whether the president should be prosecuted, but rather a separate question of whether, despite the long-held legal precedent that the Constitution implicitly forbids prosecuting a president, the evidence would nonetheless support doing so.
CREW's president, Noah Bookbinder, said Tuesday that he was deeply disappointed in the Justice Department's decision to appeal the memo's release.
“The Department of Justice had an opportunity to come clean, turn over the memo, and close the book on the politicization and dishonesty of the past four years," Bookbinder said. "Last night it chose not to do so."