Barr Was Told Trump’s Mueller Actions Defensive, Not a Crime, 2019 Memo Shows

Erik Larson
·3 min read
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(Bloomberg) -- The US Justice Department released a 2019 memo to then-attorney general Bill Barr advising him not to charge then-President Donald Trump with obstruction of justice over the Russia probe.

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The document, whose release was ordered by a federal appeals court last week, sheds new light on Barr’s reason for not charging Trump after Special Counsel Robert Mueller’s report outlined several possible incidents of obstruction.

“The report identifies no actions that, in our judgment, constituted obstructive acts, done with a nexus to a pending proceeding, with the corrupt intent necessary to warrant prosecution under the obstruction-of-justice statutes,” according to the memo, which was written by DOJ attorneys Steven A. Engel and Edward C. O’Callaghan.

Engel and O’Callaghan concluded that none of Trump’s unprecedented actions during the investigation -- from firing the FBI Director James Comey to encouraging witnesses like Roger Stone and Michael Cohen not to “flip” -- amounted to a crime.

Their memo came at the end of Mueller’s investigation into Russian interference in the 2016 election and whether Trump had tried to meddle with the probe. Mueller’s team declined to make a recommendation about whether to charge Trump, and Barr said the evidence was “not sufficient” to prosecute.

“Add the DOJ memo to the mountain of evidence confirming what we already know -- President Trump did nothing wrong,” his lawyer Alina Habba said in a statement.

The nonprofit Citizens for Responsibility and Ethics in Washington, which sued to make the memo public, said the memo is incorrectly premised on the idea that there was no underlying criminal conduct.

“The memo presents a breathtakingly generous view of the law and facts for Donald Trump,” CREW said in a statement. “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 More: Mueller Cites Trump’s ‘Multiple Acts’ to Undermine Russia Probe

In his probe, Mueller had concluded there was not sufficient information to allege that Trump or anyone from his campaign had conspired or coordinated with representatives of the Russian government. Because there was no crime, there was no probe to obstruct, according to the memo.

“The Special Counsel’s thorough investigation did not establish that the President committed any underlying crime related to Russian interference,” Engel and O’Callaghan wrote. “As noted, in every successful obstruction case cited in the Report, the corrupt acts were undertaken to prevent the investigation and prosecution of a separate crime.”

US District Judge Amy Berman Jackson had found that the memo could be released. The department previously made public only a heavily redacted version, and Jackson agreed to keep the rest under seal while the government appealed. The appeals court agreed the memo was about “public messaging” rather than deciding on charges.

The memo from Engel, from the DOJ’s Office of Legal Counsel, and O’Callaghan, the principal associate deputy attorney general, was cited by Barr at the time as justifying his decision not to charge Trump. Mueller’s report outlined several possible areas of obstruction by Trump, but the special counsel said the DOJ should decide on any charges rather than him.

Barr was advised in the memo that Mueller’s report didn’t indicate that Trump attempted to conceal evidence of criminal conduct and that there was insufficient evidence to prove beyond a reasonable doubt that he’d attempted to give false evidence to investigators.

“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 states. “But we do not believe that any of the actions described in the report would meet such a standard.”

(Updates with comment from ethics group.)

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