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Former Attorney General Bill Barr concluded that then-President Donald Trump couldn’t be charged with obstructing the Russia probe because there wasn’t an underlying conspiracy between his campaign and Russia, breaking with special counsel Robert Mueller’s view on the matter, according to a newly unredacted memo released by the Justice Department.
The nine-page memo was released Wednesday as part of a lawsuit over public records tied to the Mueller investigation. A highly redacted version of the memo was previously released in 2021, but a federal court ordered the Justice Department to make the full document public.
“It would be rare for federal prosecutors to bring an obstruction prosecution that did not itself arise out of a proceeding related to a separate crime,” then-top Justice Department officials Steven Engel and Ed O’Callaghan wrote in the document, which concludes with a formal recommendation against charging Trump, which Barr signed and approved on March 24, 2019.
That’s the same date that Barr notified Congress of his decision not to prosecute Trump, which was later criticized by Mueller and legal analysts for cherry-picking from Mueller’s report.
The memo contains a legal analysis that was presented to Barr. Two federal courts involved in the public records case have concluded that Barr didn’t actually rely on the memo for legal advice, never seriously considered charging Trump, already made up his mind before he commissioned the memo, and that he signed the memo after notifying Congress of his decision.
Last week, in ruling that the full memo should be released, a federal appeals court described the memo as an “academic exercise” or “thought experiment” that meant to bolster the public rollout of Barr’s controversial decision against prosecuting Trump. The lawsuit was brought by Citizens for Responsibility and Ethics in Washington, a government watchdog group.
In the memo, Barr’s deputies critiqued Mueller’s analysis of relevant obstruction cases and said Trump shouldn’t be charged because, among other reasons, “there is no precedent” and claims Mueller couldn’t find a single comparable case with “remotely similar circumstances.”
“In every successful obstruction case cited in the (Mueller) Report, the corrupt acts were undertaken to prevent the investigation and prosecution of a separate crime,” Barr’s aides argued in their memo. “The existence of such an offense is not a necessary element to proving an obstruction charge, but the absence of underlying guilt is relevant and powerful evidence.”
Mueller concluded that there were several incidents with strong evidence of obstruction by Trump. But Barr’s deputies argued that Trump mostly “attempted to modify the process under with the Special Counsel investigation progressed,” but didn’t try to “intentionally alter evidence,” which would be more serious and could be criminal.
Specifically, Barr’s deputies concluded that Trump did not break the law in any of the incidents highlighted by Mueller. This includes Trump’s firing of FBI Director James Comey, and his earlier request to Comey to go easy in the criminal probe of his former top adviser Michael Flynn.
“The President’s expression of “hope’ that Comey would ‘let this go’ did not clearly direct a particular action in the Flynn investigation, and Comey did not react at the time as though he had received a direct order from the President,” Barr’s deputies wrote in the internal memo.
The Barr aides gave some credence to the idea that Trump may have committed obstruction by telling Don McGahn, his White House counsel, to write a memo saying he never tried to fire Mueller. Barr’s aides admit Trump likely knew this was untrue, but “there is insufficient evidence to conclude beyond a reasonable doubt that the President sought to induce McGahn to lie.”
The release of the unredacted memo comes as the Justice Department is investigating Trump yet again for potential obstruction of justice – this time in connection with the criminal probe of whether he mishandled classified documents that he took from the White House to Mar-a-Lago.
This story has been updated with additional details.