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Barr memo on charging Trump in Russia investigation released to public – The Washington Post

The Justice Department has released the entire text of a secret 2019 memo that laid out the legal rationale for not charging President Donald Trump with committing obstruction of justice in the investigation into whether Russia interfered in the 2016 election.

The nine-page memo, addressed to Deputy Attorney General Rod J. Rosenstein, says no potential instances of obstruction of justice by Trump that were cited by special counsel Robert S. Mueller III’s “would warrant a prosecution for obstruction of justice,” regardless of whether the person being investigated was a sitting president.

A government watchdog group had sued for the release of the memo, arguing that the department had dishonestly kept it under wraps. A federal judge agreed, and an appeals panel last week upheld the judge’s opinion and ordered that memo be made public.

The memo was written by two senior Justice Department officials for Attorney General William P. Barr, who subsequently told Congress there was not enough evidence to charge Trump with obstruction of Mueller’s inquiry. A redacted version was released last year, leaving the legal and factual analysis under seal.

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The newly released analysis shows that Steven A. Engel, then the head of the Office of Legal Counsel, and Edward O’Callaghan, then a senior Justice Department official, concluded that Mueller did “not identify sufficient evidence to prove any criminal offense beyond a reasonable doubt.”

Pursuing such a case, the memo argued, could stretch obstruction laws to apply to a wide range of officials taking actions “that could influence an investigation” and would raise “serious questions of public policy and constitutional law that would weigh against pursuing criminal charges except under the clearest of cases.”

The memo analyzes several instances of possible obstruction by Trump cited by Mueller. In the early months of his presidency, Trump allegedly pressured FBI Director James B. Comey to drop an investigation into former Trump aide Michael Flynn. Comey wrote in a memo that Trump told him, “I hope you can let this go.”

The Justice Department memo also considered whether Trump obstructed justice by seeking to have Mueller fired or his investigation curtailed after The Washington Post reported in June 2017 that Mueller was investigating Trump for possible obstruction.

In both instances, the memo concludes that the evidence was insufficient to support charges of obstruction. Mueller’s team could not show that Trump took steps specifically to stymie the investigation, the memo argued, concluding that there were no “clear violations” of the law.

Citizens for Responsibility and Ethics in Washington, the nonprofit that sued for the document’s release, has maintained that the public deserved to know the legal rationale for not charging Trump. In a written statement Wednesday, the group said the memo “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.”

Justice Department officials had argued that the document was protected because it involved internal deliberations over a prosecutorial decision. But the appeals judges ruled that both Mueller and Barr had clearly already concluded that a sitting president could not be charged with a crime. The discussion was over how Barr would publicly characterize the obstruction evidence Mueller had assembled, the Justice Department conceded on appeal.

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In briefing lawmakers on the issue in 2019, Barr said since Mueller had declined to reach a conclusion on obstruction of justice, Barr and his deputy made their own determination that the evidence was lacking. When Mueller’s full report was released weeks later, the special counsel’s office said there was “substantial evidence” of obstruction. Mueller also wrote a letter to Barr saying the attorney general had mischaracterized his team’s work.

The fight over the document put Attorney General Merrick Garland’s office in the tricky legal posture of defending efforts made under his predecessor that federal courts deemed dishonest.

Last year, U.S. District Judge Amy Berman Jackson lambasted the Justice Department’s rationale for keeping the memo secret as “disingenuous … misleading and incomplete.” After reading the memo herself, she said, it was clear that there had been no contemplation of charging Trump and “the fact that he would not be prosecuted was a given.”

She ordered the documents released.

The Justice Department appealed that ruling. The appeals court not only unanimously affirmed that the records should be made public, but echoed Jackson in concluding the government “created a misimpression” and thus could not stop the memo’s release under the Freedom of Information Act.

At oral argument in December, Deputy Assistant Attorney General Sarah Harrington said “we could have been clearer,” but that “we never said” Barr was weighing charges against Trump.

“Nobody would have believed us,” she said. What the Justice Department meant to convey, she said, that Barr’s deputies were analyzing the evidence to decide “what if anything to say publicly.”

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