- The
Justice Department is appealing the full release of a 2019 memo on the Mueller report. - AG
Bill Barr had cited the memo among his grounds to not charge Trump with obstruction of justice. - A federal judge recently ordered the release of the document, saying Barr had been misleading.
The Justice Department on Monday appealed a federal court ruling ordering it to release in its entirety a 2019 memo that Attorney General Bill Barr used as grounds to clear President
The memo, written by officials at the Justice Department's Office of Legal Counsel, addressed the extensive evidence laid out by the special counsel Robert Mueller in his final report on Russia's interference in the 2016 US election and whether Trump sought to obstruct justice in the course of the investigation.
Barr said at the time that he had decided to clear Trump of obstruction "in consultation with the Office of Legal Counsel and other Department lawyers," but he did not publicize the OLC's memo. In response, the watchdog group Citizens for Responsibility and Ethics in Washington filed a Freedom of Information Act lawsuit to obtain the memo.
In early May, US District Judge Amy Berman Jackson ordered that the memo be released in full, rejecting the Barr DOJ's argument for keeping it sealed on the basis that it was a "deliberative" document.
A heavily redacted 1 1/2-page report was released Monday night
The DOJ released a page and a half of the memo on Monday night. Large sections of the document analyzing Trump's conduct as described in the Mueller report from a legal perspective were still redacted.
Mueller declined to reach a conclusion on whether Trump had obstructed justice, citing DOJ guidance against charging a sitting president with a crime.
But in the newly unredacted sections of the memo, OLC officials wrote that Mueller's position "might be read to imply such an accusation if the confidential report were released to the public."
"Therefore, we recommend that you examine the Report to determine whether prosecution would be appropriate" to resolve any legal ambiguity, the memo said.
The memo said there was insufficient evidence in the Mueller report to charge Trump with obstruction, but how officials had reached that decision was unclear.
-Zoe Tillman (@ZoeTillman) May 25, 2021
In her order to release the memo, Jackson argued that while Barr had claimed he was acting on the document in not charging Trump, in reality he had made the decision already.
"The letter asserted that the Special Counsel 'did not draw a conclusion - one way or the other - as to whether the examined conduct constituted obstruction,' and it went on to announce the Attorney General's own opinion that 'the evidence developed during the Special Counsel's investigation is not sufficient to establish that the President committed an obstruction-of-justice offense,'" Jackson wrote.
However, the OLC's memo "calls into question the accuracy of Attorney General Barr's March 24 representation to Congress" and "raises serious questions about how the Department of Justice could make this series of representations to a court," the ruling said.
In its Monday filing, the DOJ said that while its briefs to the court "could have been clearer, and it deeply regrets the confusion that caused," the "government's counsel and declarants did not intend to mislead the Court."
The full unredacted memo would likely shed light on one of the overarching questions related to Mueller's investigation and why the special counsel declined to make a "traditional prosecutorial judgment" on whether Trump had obstructed justice.
Barr told reporters that Mueller's decision had not been influenced by long-standing Justice Department guidelines that say a sitting president cannot be indicted. He said that, in fact, Mueller's determination - or lack thereof - was prompted by the inconclusive nature of the evidence.
But in his report, Mueller did not cite the nature, or absence, of evidence as the reason he did not come to a decision on obstruction. He did, however, cite the OLC's 1973 memo saying that a sitting president cannot be charged with a crime.
Moreover, the special counsel's team said that "if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state." The team continued: "Based on the facts and the applicable legal standards, however, we are unable to reach that judgment."