WASHINGTON - The Justice Department late Monday night released part of a key internal document used in 2019 to justify not charging President Donald Trump with obstruction, but also signaled it would fight a judge’s effort to make the entire document public.
The filing comes after a federal judge excoriated former U.S. attorney general William Barr - and the Justice Department more broadly - for their explanations of how and why it decided not to pursue a criminal case against Trump over possible obstruction of the investigation by special counsel Robert Mueller.
The Justice Department filing is likely to both fuel and frustrate Trump’s biggest critics, particularly Democrats who have long argued that Barr stage-managed an exoneration of Trump after Mueller submitted a 448-page report into his findings about his investigation into whether the 2016 Trump campaign conspired with Russia to interfere in the election, and whether Trump tried to obstruct that investigation.
The central document at issue is a March 2019 memo written by two senior Justice Department officials arguing that aside from important constitutional reasons not to accuse the president of a crime, the evidence gathered by Mueller did not rise to the level of a prosecutable case, even if Trump were not president.
Earlier this month, U.S. District Judge Amy Berman Jackson issued a scathing opinion saying that she had read the memo and that it showed that Barr was disingenuous when he cited the document as key to his conclusion that Trump had not broken the law.
She also accused department lawyers of misleading her about the internal discussions that surrounded the memo and ordered the memo be released, though she gave the government several weeks to decide whether to appeal.
As that deadline neared, the government filed papers seeking both to appeal the ruling and to appease the court by offering a partially unredacted version of the document - making the first two pages public, while filing an appeal to try to keep the other half-dozen pages secret.
“In retrospect, the government acknowledges that its briefs could have been clearer, and it deeply regrets the confusion that caused. But the government’s counsel and declarants did not intend to mislead the Court,” the Justice Department lawyers wrote in asking the judge to keep the rest of the document under seal while they appeal her ruling.
The parts of the memo released Monday night offer a deeper glimpse into why the judge was angry - and indicate that the decision not to accuse Trump of a crime had been the subject of previous conversations among Justice Department leaders.
The memo written by Steven Engel, then the head of the department’s Office of Legal Counsel (OLC), and Edward O’Callaghan, then a senior department official closely involved in supervising the Mueller investigation, was addressed to Barr, then the U.S. attorney general.
“Over the course of the Special Counsel’s investigation, we have previously discussed these issues within the Department among ourselves, with the Deputy Attorney General, and with you since your appointment, as well as with the Special Counsel and his staff. Our conclusions are the product of those discussions, as well as our review of the Report,” the lawyers wrote in the newly public section.
For decades, Justice Department policy has held that sitting presidents could not be charged with a crime. But the memo went beyond that constitutional position, arguing “certain of the conduct examined by the Special Counsel could not, as a matter of law, support an obstruction charge under the circumstances. Accordingly, were there no constitutional barrier, we would recommend, under the Principles of Federal Prosecution, that you decline to commence such a prosecution.”
The memo also argued that the Justice Department should make a decision whether Trump broke the law - even though Mueller had very carefully avoided answering that question, citing Justice Department policy against charging a sitting president.
“The department should reach a conclusion on whether prosecution is warranted,” the memo said. “The department either brings charges or it does not. . . . That principle does not change simply because the subject of the investigation is the president.”
For that reason, Engel and O’Callaghan urged Barr “to determine whether prosecution would be appropriate given the evidence recounted in the Special Counsel’s Report, the underlying law, and traditional principles of federal prosecution.”
Barr ultimately did so, making public arguments about Mueller’s evidence that closely tracked the view expressed in the memo.
Jackson’s opinion noted that Barr told Congress that he and his deputy reached the decision that Trump should not be charged “in consultation” with the Office of Legal Counsel and other department lawyers. Barr testified about the deliberations after Mueller wrote a private letter complaining to the attorney general that his description of Mueller’s report before its public release had led to misunderstandings about what the investigation found.
“The Attorney General’s characterization of what he’d hardly had time to skim, much less, study closely, prompted an immediate reaction, as politicians and pundits took to their microphones and Twitter feeds to decry what they feared was an attempt to hide the ball,” Jackson wrote.
The OLC is a critical but little-known part of the federal government, providing legal advice to presidents and their administrations. Democratic and Republican administrations often cite OLC memos as the legal justification for controversial policy decisions, but the contents of such memos are usually closely held secrets within the government.
In the case of the memo regarding whether Trump could be charged with a crime, the judge’s opinion concluded that, rather than Barr following OLC advice, his decision and the OLC memo “were being written by the very same people at the very same time,” working “hand in hand to craft the advice” that the office supposedly delivered to Barr.
“Not only was the Attorney General being disingenuous then, but DOJ has been disingenuous to this Court with respect to the existence of a decision-making process that should be shielded by the deliberative process privilege,” Jackson concluded.
The judge also found that claims made by the department to try to shield the memo from public scrutiny “are so inconsistent with evidence in the record, they are not worthy of credence,” and said the department sought to “obfuscate” that it had set out to create a legal justification for a decision department leaders had already made - to not accuse the president of a crime.