The department initially released a revised version of the memo in May 2021, stemming from a Freedom of Information Act lawsuit filed by the watchdog group Citizens for Responsibility and Ethics in Washington (CREW). This version completely deleted more than six of the 10 pages of the memo. But on Friday, a panel of judges in the D.C. Circuit ordered the release of the full memo, upholding a district court ruling that had found Barr and other DOJ officials had not been truthful in their statements about the memo’s role in the decision them not to charge Trump. Justice Department officials previously told the court that the memo should be withheld from the public because it included internal department discussions and the advice Barr was given on whether Trump should be prosecuted. However, a district judge ruled that Barr had never participated in such a proceeding and had already decided not to indict Trump. The full memo released Wednesday outlines the reasoning given to Barr by Steven Engel, the former head of the DOJ’s Office of Legal Counsel, and Ed O’Callaghan, then the principal deputy attorney general. William Barr, U.S. attorney general, speaks during a press conference at the U.S. Department of Justice in Washington, Dec. 21, 2020. Bloomberg via Getty Images, FILE Both lawyers write that former special counsel Mueller’s report on his investigation into Trump and Russia “does not identify actions that, in our judgment, constituted obstruction, taken in connection with a pending proceeding, with the corrupt intent required to justify prosecution under obstruction-of-justice statutes’. In the March 2019 memo, Engel and O’Callaghan wrote that their determination was reached separately from considering whether Trump was already immune from prosecution because of his status as a sitting president. While Mueller’s report thoroughly documents possible obstructionist actions by Trump before and after his appointment as special counsel, Mueller said he declined to rule on whether Trump committed a crime based on Justice Department policies and “principles of justice.” In both a public statement and hours of testimony before Congress in 2019, Mueller directly denied Trump’s claims that his report “exonerated” Trump. “That’s not what the report says,” Mueller said in his testimony. In a statement Wednesday, a DOJ spokesman said “the memorandum informed Attorney General Barr what, if any, determination he should make regarding whether the facts set forth in Special Counsel Mueller’s report were sufficient with the Federal Prosecutor’s Office to prove that the President of the United States had committed obstruction of justice.” “The lawsuit was filed under the Freedom of Information Act to publicly disclose this internal memo,” the spokesman said. “The appeal was only about whether the government had properly withheld portions of the memo under FOIA – it was not about the value of the advice provided in the memo.” Engel and O’Callaghan detailed multiple justifications for refusing to prosecute Trump for actions stemming from the Mueller report, which laid out 10 possible cases of obstruction of justice investigated by the special counsel’s team. They wrote that the cases in Mueller’s report were not similar to “any reported case” in which the Justice Department had previously been charged under obstruction of justice statutes, and described Mueller’s obstruction theory as “novel” and “unusual” because of the conclusion that concluded in the first volume of his report — that the evidence developed “was not sufficient to charge that any member of the Trump Campaign conspired or coordinated with a representative of the Russian government to interfere in the 2016 election.” “It would be rare for federal prosecutors to prosecute an obstruction that did not arise from a proceeding related to a separate crime,” the memo states. U.S. Attorney General William Barr speaks at the release of the Mueller Report at the Justice Department in Washington, April 18, 2019. The final report from special counsel Robert Mueller’s Russia investigation on Thursday could leave much of the public unsettled , because it could be heavily redacted, were stripped of important evidence and testimony collected by investigators. Attorney General Bill Barr has made it clear that he will redact large portions of Mueller’s final 400-page report on his investigation into President Donald Trump and Russian meddling in the election. Brendan Smialowski/AFP via Getty Images, FILE Engel and O’Callaghan wrote that “much” of Trump’s conduct in the report “rather “constituted efforts to alter the process by which the Special Counsel’s investigation proceeded, rather than attempts to tamper with or deliberately alter evidence … that would adversely affect the special counsel’s ability to obtain and develop evidence.” Their memo also includes some details to rebut some lines of inquiry that Mueller’s team pursued in investigating Trump’s potentially obstructive actions. Engel and O’Callaghan wrote that they did not believe Trump’s actions in firing FBI Director James Comey amounted to obstruction because his conduct could “readily be explained by his desire to brief the FBI director or others in the public administration that they were not under investigation.” They also wrote that they believed Trump’s alleged efforts to drop charges against his former national security adviser Mike Flynn did not amount to criminal obstruction. In their view, Trump’s alleged statement to Comey that he would drop it “did not clearly direct a specific action in the Flynn investigation, and Comey did not react at the time as if he had received a direct order from the President.” The memo detailed Trump’s actions after learning of Mueller’s appointment and when he learned that investigators had opened a separate line of inquiry into possible obstruction of justice. “Most of the conduct identified consists of lawful person actions that are part of the President’s constitutional responsibility to oversee the executive branch,” Engel and O’Callaghan wrote. “And there is substantial evidence that the President took these official actions not for an illegal purpose, but because he believed the investigation was politically motivated and undermined his administration’s efforts.” They also noted that despite Trump’s actions he led his White House counsel to fire Mueller at one point or asked a top aide to persuade Attorney General Jeff Sessions — Barr’s predecessor — to limit Mueller’s investigation , “none of his requests to change the supervision of the investigation were actually carried out.” “In any case, if the President really wanted to provoke these actions, he could have done it himself,” Engel and O’Callaghan wrote. “Of course, it is true that an act may constitute an attempt or an attempt even if it fails. But the facts that the President could have given these instructions himself and not removed any subordinate for not giving his instructions weigh finding an intent to obstruct justice.” But Engel and O’Callaghan wrote that other actions by Trump, such as his comments about witnesses in the Mueller investigation — condemning those who cooperated while praising those who remained silent — “more directly implicate the law’s concerns obstruction.” However, they wrote, none of the cases “show that the President attempted to conceal evidence of criminal conduct nor is there sufficient evidence to prove beyond a reasonable doubt that he attempted to provide false information to investigators.”
