WASHINGTON — The Justice Department on Wednesday released the unredacted version of a 2019 memo that made the case to then-Attorney General William Barr that President Donald Trump should not be charged with obstruction of justice in the Russia investigation.
The nine-page memo, from March 24, 2019, was written by Steven Engel, then the assistant attorney general for the Office of Legal Counsel, and Ed O’Callaghan, who was the Justice Department's principal associate deputy attorney general. Barr, a critic of then-special counsel Robert Mueller's probe, announced that the Justice Department would not prosecute the case the same day the memo was sent to him.
The memo, which was released in response to a lawsuit by a government watchdog group, says Volume II of Mueller's report "is not, in our judgment, sufficient to support a conclusion beyond a reasonable doubt that the President violated the obstruction-of-justice statutes." It was made public following a ruling from the U.S. Circuit Court of Appeals for Washington, D.C.
Even if there were no constitutional barriers to charging a president, the memo argued, the Justice Department should decline to charge Trump.
The Mueller probe did not establish any "underlying crime related to Russian interference," and it was not clear that Trump was trying to cover up any wrongdoing, the memo's authors wrote in their rationale against bringing charges.
"Given that conclusion, the evidence does not establish a crime or criminal conspiracy involving the President toward which any obstruction or attempted obstruction by the President was directed," the memo contended, dismissing Mueller's concerns about Trump’s firing FBI Director James Comey, his attempts to fire Mueller and his dangling of pardons to some witnesses while he was warning others not to "flip" on him.
"The President's public statements could be viewed as efforts to defend himself from public criticism related to the Special Counsel’s investigation or to discourage the witnesses from making what the President believed might be false statements in exchange for a lesser sentence. Those statements do not warrant a prosecution for obstruction of justice," the memo said. It did not touch on whether such pressure could have persuaded witnesses to withhold information.
"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," the memo states. "Even if the President were objectively wrong about the intentions of the Special Counsel, many, if not all, of his actions could be viewed as lacking the intent element under the relevant statutes."
Barr cited the memo by the department’s Office of Legal Counsel as a reason not to pursue the charges against Trump after he received Mueller’s report on Russian interference in the 2016 presidential election. The part of the memo that Barr cited was released last year.
When the left-leaning watchdog group Citizens for Responsibility and Ethics in Washington, or CREW, sought the memo under the Freedom of Information Act, the Justice Department argued it was not required to release it under an exception covering materials intended to aid senior officials in making decisions.
In a ruling last year, U.S. District Judge Amy Berman Jackson criticized the government's position, saying the memo did not fit the exemption for “deliberative” documents. In an earlier ruling, she said Barr's mind had already been made up before the memo was written.
The Justice Department appealed the decision ordering the release of the full document, but the Washington, D.C., circuit court ruled against the Justice Department last week. “Because the Department did not tie the memorandum to deliberations about the relevant decision, the Department failed to justify its reliance on the deliberative-process privilege,” the ruling said.
The Mueller report identified 10 episodes that could be considered potential obstruction of justice but did not come to a conclusion about whether to charge the president for them.
After having read the Mueller report, many people strongly disagreed with the analysis laid out in the memo. Hundreds of former federal prosecutors argued in an open letter that Trump would have been charged with obstruction were he not president.
In a statement Wednesday, CREW said the unsealed parts of the memo present "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."
Read the memo below.