National

Memo details Barr’s justifications not to prosecute Trump

The March 2019 memo concludes that none of Trump's actions in the report could be shown beyond a reasonable doubt to be criminal acts.

Attorney General William Barr after President Donald Trump finished speaking during an event at the White House, July 21, 2020. Doug Mills/The New York Times


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 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 Barr, concluded that none of Trump’s actions chronicled in the report by the special counsel, Robert S. Mueller III — from firing his FBI director to pressuring the White House counsel to recant his testimony to prosecutors — could be shown beyond a reasonable doubt to be criminal acts.

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Many of these actions, two senior Justice Department officials wrote, should be interpreted by an inference that 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 Barr immediately pronounced 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 Barr was signed by Steven 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.

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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 evenhanded 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 Trump’s dangling of a potential pardon before witnesses like Paul Manafort, his former campaign chairman, while encouraging him not to cooperate with investigators. Manafort was convicted of financial crimes, and Trump pardoned him late in his administration.

The memo to Barr never mentioned the word “pardon,” instead characterizing that and similar episodes as Trump merely praising or condemning witnesses based on whether they cooperated with investigators. The memo argues that this could be interpreted as 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 Mueller’s investigation did not find sufficient evidence to charge any Trump campaign associate in a conspiracy with Russia.

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“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,” Engel and 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.”

Barr has denounced the Russia investigation, saying it was cooked up by Trump’s opponents to upend his presidency and that 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, 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 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 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.”

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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 FBI director, James Comey — met all the required elements of that crime.

But the report’s analysis put greater emphasis on Trump’s attempts to have 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 McGahn, to deny that Trump had pushed him to oust the special prosecutor.

The memo to Barr dismissed both aspects. While it acknowledged that an unsuccessful attempt to commit a crime is itself a criminal act, it stressed that 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 Trump’s attempt to force McGahn to write a memo denying that Trump had pushed him to have Mueller fired as arguably an attempt to falsify written evidence that would undermine McGahn’s ability to testify as a witness in any later trial. Moreover, while Trump also wanted 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 McGahn’s recollection of the president’s directions as ambiguous, apparently because Trump did not use the word “fire.” (According to McGahn’s sworn testimony to Congress, Trump called him at home and said, “Mueller has to go” and “call me back when you do it.”)

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This article originally appeared in The New York Times.

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