Newly Released OLC Memo Shows Staff Lawyers Found No Basis For Obstruction Charges In Mueller Report

The long-awaited, though partial, release of a memorandum from the Justice Department this week left many “frustrated,” as predicted by the Washington Post, in Washington. The reason is what it did not contain.  Critics had sought the memo as the “smoking gun” to show how former Attorney General Bill Barr scuttled any obstruction charges against Donald Trump. Instead, the memo showed the opposite. The staff of the OLC actually found that the allegations did not meet the standard of obstruction even without any defenses or privileges related to Trump’s office.

The issue of obstruction of justice ran throughout Barr’s second term as Attorney General. Before his confirmation hearing, a memo was released that Barr wrote to Deputy Attorney General Rod Rosenstein. The memo discussed flaws in the use of the most likely federal provision on obstruction of justice against Trump. Barr was hammered by Democratic senators on his view of obstruction, as was I when I testified the next day as a witness. I agreed with many of the flaws noted by Barr in the memo.

Barr’s more nuanced arguments were drowned out by a long litany of experts like Harvard Professor Laurence Tribe who publicly insisted that obstruction was not only clearly established (with a long litany of other crimes) but that Barr’s rejection of that crime was evidence of his raw partisanship. In a public letter to me, Ralph Nader, Lou Fisher, and Bruce Fein stated that his rejection of obstruction was akin to “a papal encyclical that President Trump was innocent of obstruction of justice” that ignored Mueller’s “chronicle [of] multiple instances of evidence of obstruction.”

Throughout this never-ending barrage, Barr remained largely silent on the internal review of the matter and declined to release the full OLC memo. That only increased speculation that Barr must be hiding countervailing conclusions of legal staff. We know now that (at least the now disclosed portion of) the memo supports Barr’s prior view and, despite that fact, he withheld the information out of concern for the confidentiality of the internal deliberations.

It turns out that the review and debate over the obstruction allegations began before Barr started as Attorney General. The memo also confirms that the Mueller staff was part of that analysis with career prosecutors at Main Justice. The memo states that the prosecutors reviewed the Mueller evidence and concluded that the evidence “examined by the Special Counsel could not, as a matter of law, support an obstruction charge under the circumstances. Accordingly, were there no constitutional barriers, we would recommend, under the Principles of Federal Prosecution, that you decline to commence such a prosecution.” In plain English, that means that the prosecutors came to the same conclusion as Barr that the alleged conduct did not satisfy the elements of this crime. Moreover, it stated that it would reject such a charge even without consideration of any constitutional barriers presented by Trump’s office.

The new information was released after Judge Amy Berman Jackson issued a scathing criticism of the Justice Department, including arguments and representations advanced by the Biden Justice Department. The Justice Department apologized for a lack of clarity on some points but said it would appeal the order to release of the entire OLC memo.

Jackson however lashed out at Barr. In issuing his controversial summary of the report, Jackson said Barr suggested that he had little time to review the whole Mueller report when “[t]he fact that he would not be prosecuted was a given.”

Jackson seems to ignore the obvious to justify the most sensational takes on these facts.  She declares: “So why did the attorney general’s advisers, at his request, create a memorandum that evaluated the prosecutorial merits of the facts amassed by the special counsel? Lifting the curtain reveals the answer to that too: getting a jump on public relations.”

The answer would seem obvious. Since his nomination, the issue of obstruction had been used to fuel allegations of partisanship and manipulation of the process. With the release of the report, it was likely to be focus of questions from Congress and the public. While the review of this question (according to the memo) began before Barr’s arrival, he wanted a clear and dispositive record of how this decision was made – and who made it. That certainly does anticipate public questions but it was also a responsible thing to do. He asked the OLC to render a formal opinion on the issue – just as the Obama Administration did in such important and public controversies.  Barr was creating a record of the conclusions of staff counsel on an issue of great national importance.  I still do not see why such a request is untoward or unusual.

Clearly there is more to this memo so we might find something truly incriminating or embarrassing, but the record of the OLC review is not one of them. Indeed, if Barr had not requested such a letter, the same pundits would now be questioning what was concluded and whether Barr imposed his own previously stated view in the matter. The letter created a record of how the conclusion was reached and who reached that conclusion.

The controversy of Barr’s summary largely focused on a couple lines where he said that the underlying facts from by Mueller would not satisfy the elements of the crime of obstruction. It turns out that staff had made that conclusion as did some of us from existing and controlling case law. Moreover, Barr stated that the reason for the delay in the release was the removal of any grand jury material as required by federal law.

The released portions does not contradict Barr’s claim that he could not simply release a two-volume, 450-page report. One can fairly criticize aspects of that summary but the delay of the release of the report (and need for a summary) falls more squarely on Mueller. Past hearings established that Barr and Rosenstein told Mueller that they wanted his staff to flag grand jury material because Barr wanted to release the redacted report rather than a summary.  Mueller appears to have simply ignored that instruction from his superiors. As a result, a full review had to be performed with Mueller’s staff to remove grand jury material, which is mandatory under federal rules.  If Mueller had flagged and redacted the grand jury material, the redacted report could have been released without much delay as Barr preferred.

The memo also undermines the claims raised in the first impeachment of Donald Trump. I testified in that hearing and disagreed with my three co-witnesses (Professors Michael Gerhardt, Pamela Karlan, and Noah Feldman) who insisted that Trump had committed obstruction of justice. They were not alone. Democrats and the media paraded a letter from over 450 prosecutors who declared unequivocally that “Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.”  The actual prosecutors at Main Justice found that not only would the allegations not meet the standard for obstruction of justice but that it would still be the case even if Trump was not the President of the United States.  The contrast shows the danger of such gotcha letters. With thousands of professors and prosecutors, it is not particularly difficult to get hundreds of signatories to support one side or another in a controversy. The Justice Department does not prosecute by plebiscite and this is why.

The day before he was effectively fired by Trump, I had lunch with Barr as we have done for many years. He was again being publicly savaged by the President over his refusal to support his electoral fraud claims and take steps against figures like Hunter Biden. Yet, he is still unlikely to be recognized for what he did for the Department during one of its most difficult periods. However, history will likely be kinder to Barr than his critics. As stated in King Lear, Barr remained from the beginning to the end “a man more sinned against than sinning.”

96 thoughts on “Newly Released OLC Memo Shows Staff Lawyers Found No Basis For Obstruction Charges In Mueller Report”

  1. I question JT’s assumption that this obstruction memo opinion was generated by OLC staff lawyers and was not directed by the political appointees that signed it. This is quite an assumption especially given the circumstances surrounding the issue and without being able to read any of the analysis.

  2. >> “The Justice System of the United States never exonerates. They prosecute, or they do not prosecute
    >Trump repeatedly claimed that the SC report did that. Is he one of the idiots you’re referring to?”

    Anonymous the Stupid, you always depend on silly word games to substitute truth with lies. On that subject, Trump’s made those statements informally rather than in a legal fashion. What Trump said was true.

    Continuously you have taken Sandburg’s advice with your peculiar modifications, “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you,” lie like hell. And you do. You lie continuously.

  3. I agree that Weismann, et al. have a legitimate gripe about Barr’s summary. They intentionally failed to segregate the grand jury material so that there would be a delay between the delivery of the report and the release of the report. Weismann, et al. had big plans for this interval. They were going to make selective leaks to the friendly media who would control the narrative in a manner most harmful to Trump. It is obvious that was the plan. Barr foiled that plan by having a well thought out response and summary ready for immediate release. Barr allowed Trump to seize the narrative from the incestuous government/media deep state. That was his sin, and it may be unforgivable to those partisans invested in the foiled narrative.

    To his credit Barr was opposed to the politicization of the DOJ and prevented it from being perverted by Weismann, et al. However, Barr came on the scene far too late. The DOJ is hopeless politicized. It needs to be “burnt to the ground and the earth salted” metaphorically only of course. We need to start over if we want a non-political DOJ. It is too far gone. Barr thought he could save the current institution by not retaliating against those who broke the law and abused their position via a via Crossfire Hurricane. So, he placated the rubes with the Durham investigation, ran out the clock, and allowed the real perpetrators get away with their crimes. Barr thought the best way to stop the DOJ from being vindictive and political is to not be vindictive and political. He was wrong. Now he is gone, and the partisans are back in control. Hunter accepts international bribes, creates kiddies porn, and lies on federal firearms applications without prosecution. Unarmed veterans are gunned down by the Praetorian guard without prosecution. Political prisoners without prior criminal records rot in jail without possibility of bail for trespassing. And the jihad against Trump continues in the SDNY. Barr wanted to fix the DOJ, but it is unfixable. It is only going to get worse, sadly.

  4. Hind sight being so informative, I now believe Barr should have sealed the Mueller report as the law states he can, and put it on the shelf, never to see the light of day.
    Watching a Judge twist the law and violated the Special Counsel Statute, and force the release in violation of the law, then have the report revealed as a huge pile of stinking nothing, would be glorious.

  5. For four years – FOUR YEARS – neither Democrats nor the Press told the truth. They were a constant lie and smear machine, creating rage and non-critical thinking by their constant baseless and false claims.

    Their constant lies have created an unintelligent, uninformed US population willing to vote for a feeble presidential candidate, Joe Biden, who is obviously controlled by far-left progressives intent on destroying the successes the Trump administration created and that the US was enjoying. We had peace in the MidEast and the Abraham accords for the future; highest ever employment rates for blacks, hispanics, and women; energy independence with gas prices below $2; a thriving and growing economy; push back on Russia, China, NoKo, and Iran as well as other bad actors on the international front. All of that is ruined by the trojan Biden.

    It is utterly disgusting that they won in 2020. But the Dems and their “Squealer” Press told the lies “a thousand times” (following Goebbels example) and now they fraudulently are in power. If you win by lying for 4 years you are a fraud. They deserve the moniker.

  6. The narrative around the Barr summary makes for good political prose and posturing but is completely lacking in factual context.

    The most important decision(s) facing the Special Counsel was to charge or not based on the evidence and facts. In this context, Barr’s summary simply puts forth the principal conclusions stemming from:

    1) Russian “collusion”–“The Special Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia….”

    2) Obstruction of Justice– “The Special Counsel therefore did not draw a conclusion – one way or the other – as to whether the examined conduct constituted obstruction.”

    3) Determination on Obstruction of Justice– As the Special Counsel did not make a determination, AG Barr and DAG Rosenstein came to the following determination after DOJ review: “the report identifies no actions that, in our judgment, constitute obstructive conduct, had a nexus to a pending or contemplated proceeding, and were done with corrupt intent…”

    In sum, these are the principal conclusions contained in the Barr summary. Period. In the end, the Special Counsel declined to charge as an evidentiary matter. Nothing in the Barr summary has changed since the day it was issued–these principal conclusions are as true today as they were then. As the summary is an accurate and factual representation of the SC report conclusions, there is no narrative, no story and no “public relations”.

    What the Dems had planned for was the release of “summaries” by the SC team (Weissmann & Co) that would muddy the waters, put the trees before the forest and advance a “blueprint for impeachment” narrative (possibly the greatest political Rorschach test of all time) knowing the vast majority of the public would simply rely on the media for interpretation of the ~500 page report. Anything to avoid the bottom line.

    What really had Dems up in arms over the Barr summary is that his fact based recitation of the principal conclusions (the forest for the trees) front ran the Dems ability to put forth the desired impeachment blueprint narrative. It’s the old Alinsky strategy of accusing others of what you are actually doing (in this case, political innuendo and narrative building to support an impeachment cut out of whole cloth).

    In the end, truth (and facts) will out.

    Kudos to Barr.

    1. Why haven’t you smart fks thought about this.president Trump was crippling the Chinese economy. They got passed and re-leased the bug for revenge on AMERIRCE FOR HOW OUR PRESIDENT WAS WORKING FOR THE HARD WORKING PEOPLE OF THESE UNITED STATES of AMERICA. THANKS SOME ONE CHECK THIS OUT,YOU NEVER KNOW.

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