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.”