A 2019 unredacted Justice Department memo, relied upon by then-Attorney General William Barr to justify his decision not to charge former President Donald Trump with committing obstruction of justice following Robert Mueller’s Russia investigation, was released Wednesday.
The release was made possible thanks to a 2019 lawsuit filed by the watchdog group Citizens for Responsibility and Ethics in Washington (CREW) under the Freedom of Information Act.
This unredacted memo may go unnoticed by many Americans because both Trump’s and President Joe Biden’s Justice Department delayed its release for years until now — when the Mueller probe seems like ancient history.
This unredacted memo may go unnoticed by many Americans because both Trump’s and President Joe Biden’s Justice Department delayed its release for years until now — when the Mueller probe seems like ancient history. But the contents of the memo should outrage every American, and the misguided efforts of Biden’s Justice Department to oppose its release gives us all a reason to worry about Attorney General Merrick Garland’s perspective.
To people familiar with the department’s byzantine organizational hierarchy, the positions of the memo’s authors — the assistant attorney general for the Office of Legal Counsel and the principal associate deputy attorney general — are significant. For those not familiar with these two positions: if this were, say, high school, those in the legal counsel’s office are the “nerds,” and those in the deputy attorney general office are the “jocks.”
The head of the Office of Legal Counsel does not prosecute cases because OLC is the egg-head think tank of the Justice Department, tasked with advising not only the attorney general but also the Office of the President and all executive branch agencies. In essence, it’s a group of lawyers’ lawyers — the legal department of the nation’s law firm.
Importantly, OLC does not make charging decisions in cases. The principal associate deputy attorney general is the top adviser to the deputy attorney general, who is the number two at the Justice Department. Known as “the PADAG” in the department parlance, this job is an extremely powerful position and is actively involved in high-level prosecution decisions. The fact that the memo was co-authored by these two officials signals that Barr — a two-time attorney general well-versed in the department’s bureaucracy — sought maximum credibility.
But the resulting work product is an embarrassment.
First, the legal analysis is laughably bad. In a nutshell, the memo takes the position that despite the evidence uncovered by the Mueller probe of Trump’s efforts to obstruct justice and tamper with witnesses, a prosecution would be unwarranted because Mueller concluded that there was no evidence of collusion in Volume I. The memo argues that without a crime or criminal conspiracy (collusion) “toward which any obstruction or attempted obstruction was directed,” it would be inappropriate to charge obstruction of justice. It doesn’t take a legal scholar to understand that the whole point of interfering with a criminal investigation is to avoid being charged, so the memo potentially rewards those who successfully obstruct justice.
Second, from an integrity standpoint, the memo reads, as New York Times reporter Charlie Savage tweeted, “like a defense lawyer’s brief.” It’s a sentiment not unlike the one shared by Amy Berman Jackson, the federal judge who oversaw the CREW lawsuit seeking access to the memo. Last year, as the Justice Department continued to fight the memo’s full release through an appeal, Jackson opined that her review of the evidence in the case showed that the Justice Department’s real priority at the time the memo was written was not legal analysis but political cover for Barr when he reported to Congress that the department had determined that Trump should not be charged with obstruction of justice.
Biden’s Justice Department, led by Garland, could have stopped fighting and not continued with an appeal of the trial court’s decision. But instead, the current Justice Department stayed the course initially charted by Barr. Now, I understand why the department would not want to agree to release OLC memos. It doesn’t want to create a slippery slope of being expected to release them every time the public wants to see what’s going on at the Justice Department, but the Barr memo seems like a poor case to stand on principle.
Perhaps the Biden Justice Department’s efforts to oppose the release of this evidence of Barr’s corrupting politicization of the department arises from Garland being, as one commentator described, “a kind of radical institutionalist, a stickler for regular order, a true believer in the norms and processes put in place after Watergate that weathered nearly every storm until Trump.”
But institutions, like buildings, require solid foundations. And the foundation of the Justice Department was damaged by Trump and Barr, much the way a storm may damage a building’s foundations. Repairing that kind of damage cannot be accomplished by just covering it up. Failing to address severe damage to buildings and institutions reduces structures to ruins.