Comment The Justice Department has released the full text of a secret 2019 memo that played a critical role in the decision not to indict or charge then-President Donald Trump with obstruction of justice in the investigation into whether Russia meddled in the 2016 election. The nine-page memo was the subject of a lawsuit by a government watchdog group, which argued the department had dishonestly kept the memo under wraps. A federal judge agreed, and an appeals panel last week upheld the judge’s opinion and ordered the memo released. The memo was written by two senior Justice Department officials for then-Attorney General William P. Barr, who later told Congress there was not enough evidence to charge Trump with obstructing the investigation by special counsel Robert S. Mueller III. A revised version was released last year, leaving out the legal and factual analysis under seal. The newly released analysis shows that Steven Engel, then head of the Office of Legal Counsel, and Edward O’Callaghan, then a senior Justice Department official, concluded in the memo that Mueller “has not identified sufficient evidence to establish any criminal wrongdoing beyond beyond a reasonable doubt.” The memo, addressed to then-Deputy Attorney General Rod Rosenstein, said none of the possible cases of obstruction of justice by Trump listed in Mueller’s lengthy final report “would warrant prosecution for obstruction of justice” regardless of whether the individual being investigated was a sitting president. Any such prosecution, the memo argued, “would involve the application of a new theory of obstruction that would arguably apply to any official with the authority to take actions that could affect an investigation. Such an extension would raise serious issues of public order and constitutional law that would weigh against criminal prosecution except in the clearest cases.” Citizens for Responsibility and Ethics in Washington, the nonprofit that sued over the document’s release, argued that the public deserved to know the legal reasoning behind not charging Trump. Justice Department officials had argued that the document was protected because it included internal discussions about a prosecutorial decision. However, the appeals judges ruled that both Mueller and Barr had already concluded that a sitting president could not be charged with a crime. The discussion was about how Barr would publicly characterize the obstruction evidence Mueller had gathered, the Justice Department admitted in the appeal. Barr eventually told lawmakers that since Mueller declined to conclude on obstruction of justice, he and his deputy decided the evidence was lacking. When Mueller’s full report was released weeks later, his office said there was “substantial evidence” of obstruction. He also wrote a letter to Barr saying the attorney general had misrepresented his group’s work. This is a developing story. He will be informed.
