In response to a court order, the Justice Department has released a 2019 internal memorandum to then-Attorney General William P. Barr concerning whether the evidence gathered by special counsel Robert S. Mueller III would justify charging then-President Donald Trump with obstruction of justice, writes Randall Eliason of the Washington Post. As Mueller noted in his report, the prospect of charging a president with obstruction raises difficult issues. But this newly released memo is not a serious attempt to grapple with those issues. It’s a whitewash — a failed effort to provide legal cover for Barr’s foregone conclusion exonerating the president. And as the statute of limitations clock continues to tick away, we still don’t have an honest assessment from the Justice Department regarding Trump and obstruction.
Mueller infamously declined to make a prosecutorial judgment on this question, based on the long-standing Justice Department policy that a sitting president cannot be indicted. In the memo, dated two days after Mueller sent his 400-plus page report to Barr, senior Justice Department officials Steven A. Engel and Edward O’Callaghan urge Barr to make that judgment himself and declare there was insufficient evidence of obstruction. Barr did just that in a misleading letter to Congress released that same day.
In their nine-page memo, Engel and O’Callaghan note that Mueller concluded there was insufficient evidence to find that Trump or his campaign conspired or coordinated with the Russians seeking to interfere with the 2016 election. They argue this would make obstruction charges inappropriate, because it would be unusual to prosecute someone for obstruction when there was no underlying criminal offense.
Scooter Libby and Martha Stewart would like a word. Both were convicted of obstructing investigations that ultimately did not result in other criminal charges — and that is not at all unusual. At the time of the obstruction, of course, a defendant does not know whether criminal charges ultimately will be brought. And people obstruct investigations for all kinds of reasons — including that the results might be politically damaging or embarrassing — even if they don’t fear criminal liability.
But the bigger flaw in this argument is that the obstruction itself might be the reason there was insufficient evidence to bring charges. According to this memo, if you are good at obstruction and succeed in thwarting the investigation, you get a free pass not only for the underlying conduct but also for the obstruction itself. That is not the law.
Engel and O’Callaghan also claim Mueller had a flawed view of obstruction because he believed that otherwise lawful acts — such as firing the FBI director — could constitute obstruction if done with corrupt intent. They argue this is incorrect, and that obstruction charges could not properly be based on conduct that is “lawful on its face.”
Wrong again. Obstruction charges often apply when otherwise lawful acts are done with the corrupt intent to obstruct. If I shred my personal files because my office is cluttered, that is perfectly lawful. If I shred those files because they have been subpoenaed by a grand jury, that same conduct is now obstruction of justice, based on my corrupt intent.
The memo also suggests Trump’s actions were not obstruction because they were motivated by his belief that the Mueller investigation was unfair and was interfering with his governing agenda. No doubt all public officials under investigation feel the same way. But that is no defense. Just as believing he won the election would not justify Trump unleashing a mob on the Capitol, being unhappy about the Mueller investigation would not justify obstructing that investigation.
But the strongest evidence of the memo’s true purpose is its suggestion that Barr himself decide the obstruction question. Engel and O’Callaghan argue it would be contrary to DOJ policy to leave that question unresolved. But if that were truly the concern, the best solution was obvious: Barr could have ordered Mueller to make that call. The very purpose of a special counsel is to take such decisions out of the hands of political appointees. Mueller and his team lived with the investigation for nearly two years and were in the best position to reach a legal conclusion about Trump’s conduct. Barr’s failure to ask Mueller for his view and decision to claim that role for himself suggests he knew he would not like Mueller’s answer.
Before he was even appointed as attorney general, Barr wrote an unsolicited memo to the Justice Department arguing that Mueller’s obstruction theories were “fatally misconceived.” There was never any doubt about where Barr was going to come down on the obstruction question, and the flimsy analysis in this memo does nothing to further illuminate the issue. Merrick Garland’s Justice Department could still take an independent look — and potentially prosecute — but time is running out.
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