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DOJ releases memo behind Barr’s decision not to prosecute Trump for obstruction

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(WASHINGTON) — Under order from the D.C. Circuit Court of Appeals, the Justice Department on Wednesday released a 2019 memo used by former Attorney General William Barr to justify his decision not to prosecute then-President Donald Trump for obstruction of justice arising from Robert Mueller’s Russia investigation.

The department initially released a redacted version of the memo in May 2021, stemming from a Freedom of Information Act suit brought by the watchdog group the Citizens for Responsibility and Ethics in Washington (CREW). That version fully redacted more than six out of the memo’s 10 pages.

On Friday, however, a panel of judges in the D.C. Circuit ordered the release of the full memo, affirming a district court decision that had found Barr and other DOJ officials were not candid in their statements about the role the memo played in their decision to not charge Trump.

DOJ officials previously told the court that the memo should be kept from the public because it involved internal department deliberations and the advice given to Barr about whether Trump should face prosecution.

But a district judge ruled that Barr was never engaged in such a process and had already made up his mind to not charge Trump.

The full memo released Wednesday outlines the rationale given to Barr from Steven Engel, the former head of DOJ’s Office of Legal Counsel, and Ed O’Callaghan, the then-principal associate deputy attorney general.

Both write that former special counsel Mueller’s report on his investigation of Trump and Russia “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 obstruction-of-justice statutes.”

In the March 2019 memo, they said their determination was reached separate from considering whether Trump was already immune from prosecution because of his status as a sitting president.

“The memorandum advised Attorney General Barr on what, if any, determination he should make regarding whether the facts articulated in Special Counsel Mueller’s report were sufficient under the Principles of Federal Prosecution to establish that the President of the United States had committed obstruction of justice,” a Justice Department spokesperson said in a statement Wednesday.

“The suit was filed under the Freedom of Information Act seeking public disclosure of this internal memo,” the spokesperson said. “The litigation involved only whether the government had properly withheld from disclosure portions of the memo under FOIA – it did not involve the merits of the advice provided in the memo.”

In the 2019 document, Engel and O’Callaghan detailed multiple justifications for declining a prosecution of Trump for actions stemming from the Mueller report, which laid out 10 possible instances of obstruction of justice investigated by the special counsel’s team.

They wrote that the instances in Mueller’s report were not similar to “any reported case” DOJ had previously charged under obstruction-of-justice statutes and described Mueller’s obstruction theory as “novel” and “unusual” because of the conclusion he reached in the first volume of his report — that evidence developed “was not sufficient to charge that any member of the Trump Campaign conspired or coordinated with representative of the Russian government to interfere in the 2016 election.”

“It would be rare for federal prosecutors to bring an obstruction prosecution that did not itself arise out of a proceeding related to a separate crime,” the memo states.

Engel and O’Callaghan wrote that “much of” Trump’s conduct in the report instead “amounted to attempts to modify the process under which the Special Counsel investigation progressed, rather than efforts to impair or intentionally alter evidence… that would negatively impact the special counsel’s ability to obtain and develop evidence.”

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