- A federal judge ordered the DOJ to turn over an internal memo related to the Mueller probe.
- Bill Barr cited the memo as the basis for his decision to clear Trump of obstruction of justice.
- “It is time for the public to see that [the memo], too,” the judge said in Tuesday’s ruling.
- See more stories on Insider’s business page.
A federal judge on Tuesday ordered the Justice Department to turn over an internal memo that then-Attorney General Bill Barr cited as justification for clearing then-President Donald Trump for obstruction of justice.
Barr said at the time that he’d come to his decision “in consultation with the Office of Legal Counsel and other Department lawyers” but did not publicize the OLC’s memo. In response, the watchdog group Citizens for Responsibility and Ethics in Washington (CREW) filed a Freedom of Information Act (FOIA) lawsuit to obtain the memo.
In Tuesday’s ruling, US District Judge Amy Berman Jackson said the unreleased OLC memo that Barr used to clear Trump of obstruction actually “contradicts” his claim that the decision to charge the president was “under his purview” because the special counsel Robert Mueller did not “resolve the question of whether the evidence would support a prosecution.”
Barr announced the decision to clear Trump in a four-page letter to Congress in March 2019 summarizing Mueller’s findings in the FBI’s investigation into Russia’s interference in the 2016 US election.
“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 it “raises serious questions about how the Department of Justice could make this series of representations to a court,” the ruling said.
Jackson pointed out that Mueller himself criticized Barr’s handling of the public release of the report and his description of the special counsel’s conclusions.
On April 18, 2019, Barr “appeared before Congress to deliver the report,” Jackson wrote. “He asserted that he and the Deputy Attorney General reached the conclusion he had announced in the March 24 letter ‘in consultation with the Office of Legal Counsel and other Department lawyers.'”
“What remains at issue today is a memorandum to the Attorney General dated March 24, 2019, that specifically addresses the subject matter of the letter transmitted to Congress,” she added, referring to the OLC memo.
She continued: “It is time for the public to see that, too.”
Mueller’s findings in the obstruction investigation were widely discussed when his final report was released in April 2019.
He laid out 11 potential instances of obstruction by Trump, but the special counsel declined to make a “traditional prosecutorial judgment.”
Barr told reporters Mueller’s decision was not influenced by longstanding Justice Department guidelines that state 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 of, or lack of, evidence as a 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 (emphasis ours) 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.”