Speed Reads

Barr's Law

DOJ releases secret memo justifying Barr's decision not to charge Trump with obstruction of Mueller probe

The Justice Department on Wednesday released a secret 2019 memo laying out a legal rationale for not charging former President Donald Trump with obstruction of justice for impeding Special Counsel Robert Mueller's Trump-Russia investigation. A federal appellate court, siding with Citizens for Responsibility and Ethics in Washington (CREW), had ordered the department to release the unredacted memo, written by two top DOJ political appointees for then-Attorney General Bill Barr.

CREW said the full memo, written by senior DOJ officials Ed O'Callaghan and Steven Engel, "presents 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."

Outside white-collar lawyers agreed that the memo reads like a defense brief, The New York Time reports.

"An overarching premise is that Mueller did not find evidence sufficient to charge Trump with conspiring with Russia, so there was no underlying crime," Times reporter Charlie Savage tweeted. "(It does not raise the possibility that Mueller failed to get that evidence because his investigation was obstructed.)" 

In fact, the Mueller report said the investigation found "substantial evidence" of obstruction by Trump, including dangling pardons before witnesses and ordering Mueller fired. The memo for Barr downplayed that evidence, often using generous assumptions or technicalities. McGahn said in sworn testimony that Trump told him "Mueller has to go," and "call me when you do it" — but Trump didn't use the word "fire," the memo points out. 

Andrew Weissman, Mueller's deputy in the investigation, called the full memo a "doozy," especially one "astounding" sentence in which O'Callaghan and Engel tell Barr he should neutralize the report before it comes out because it could be read to say the president committed obstruction. He also told MSNBC's Nicole Wallace the memo is legally "dead wrong" on obstruction law and in claiming Mueller's team didn't find evidence of underlying crimes.

The memo is essentially a "get out of jail free" card, New York University law professor Ryan Goodman tells the Times: "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." Seriously, "it's garbage," agrees former White House ethics lawyer Norm Eisen. "Anyone else woulda been prosecuted. Barr should be disciplined."