The secret memo Bill Barr used to clear Trump of obstruction of justice, and why the Biden DOJ wants to keep it under wraps

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The secret memo Bill Barr used to clear Trump of obstruction of justice, and why the Biden DOJ wants to keep it under wraps
Trump makes a statement with Attorney General William Barr in the Rose Garden of the White House on July 11, 2019 in Washington, DC.Alex Wong/Getty Images
  • The Biden DOJ is fighting to keep secret a memo that Bill Barr used to clear Trump of obstruction.
  • Barr cited the memo in his decision not to charge Trump, and a judge this month ordered its release.
  • Here's what's in the memo, why it's controversial, and why Biden's DOJ wants to keep it under wraps.

The special counsel Robert Mueller's investigation into Russia's interference in the 2016 US election formally wrapped up more than two years ago.

But the inquiry catapulted back into the spotlight this month when a federal judge ordered the Justice Department to release a secret memo that Attorney General William Barr used in 2019 to clear President Donald Trump of obstruction of justice.

On Monday, the Justice Department, now overseen by Attorney General Merrick Garland, released part of the memo but appealed the judge's ruling and asked to keep the majority of the document from the public.

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It was an unusual step that prompted backlash from Trump critics who said the public had a right to know the department's reasoning as it weighed whether to charge a sitting president with a crime. But others said the appeal was a testament to Garland's pledge that he would not let politics influence the department's decision-making.

What's in the memo?

The department released the first page and a half of the nine-page document on Monday. In it, senior officials from the Justice Department's Office of Legal Counsel outlined why they didn't believe Trump should be charged with obstructing justice and why they felt Barr was justified in coming to a decision on the matter when Mueller had not.

Mueller's team declined to make a "traditional prosecutorial judgment" on whether to charge Trump based on a 1973 OLC memo saying that a sitting president cannot be charged with a crime. The special counsel's report also said it would be unfair for prosecutors to suggest Trump had committed a crime without giving him a chance to prove his innocence in a court of law.

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The OLC's memo reviewing Mueller's report acknowledged that "although the special counsel recognized the unfairness of levying an accusation against the president without bringing criminal charges, the report's failure to take a position on the matters described therein might be read to imply such an accusation if the confidential report were released to the public."

"Therefore, we recommend that you examine the Report to determine whether prosecution would be appropriate given the evidence recounted in the Special Counsel's Report, the underlying law, and traditional principles of federal prosecution," the memo continued.

The rest of the document, which details the OLC's specific legal reasoning for not charging Trump, is redacted.

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Why is the memo controversial?

Barr first mentioned the OLC's internal memo in a four-page letter he sent to Congress summarizing Mueller's findings before the special counsel's report was released. The attorney general said he had decided not to charge Trump with obstructing justice "in consultation with the Office of Legal Counsel and other Department lawyers," but he did not publicize the memo.

Barr's letter drew criticism and accusations that the attorney general was putting his own spin on Mueller's conclusions before the public had a chance to read through his report. When the report was released, Barr came under more scrutiny because portions of the document - specifically the second volume detailing the obstruction investigation - directly contradicted his claims.

The watchdog group Citizens for Responsibility and Ethics in Washington filed a Freedom of Information Act lawsuit to obtain the memo. In early May, US District Judge Amy Berman Jackson ordered its release in a scathing ruling that accused Barr of misleading the public about the special counsel's findings.

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Barr's letter to Congress "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.

The OLC's memo "calls into question the accuracy of Attorney General Barr's March 24 representation to Congress" and "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 had criticized Barr's handling of the public release of the report and his description of the special counsel's conclusions.

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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."

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Why does the Biden DOJ want to keep the memo under wraps?

The Justice Department's notice of appeal on Monday put the Biden administration in the unusual position of trying to shield one of the most controversial legal episodes of Trump's presidency from becoming public.

In their filing, government lawyers said that "irreparable harm" would be caused by the release of the full document because it's covered under "deliberative process privilege," a type of executive privilege that protects government agencies from disclosing the way they reached a particular conclusion.

In this case, the Justice Department argued that the OLC's memo was covered by that legal principle because it featured internal, high-level deliberations by department officials about whether Trump had violated the law.

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The department also said Jackson's assessment that the government's briefs related to the Mueller report and the OLC memo "incorrectly described the nature of the decisional process in which the Attorney General was engaged."

"In retrospect, the government acknowledges that its briefs could have been clearer, and it deeply regrets the confusion that caused," the filing said, adding that department lawyers "did not intend to mislead the Court" and that "imprecision in its characterization of the decisional process" did not warrant the full release of the memo.

The filing drew sharp criticism from some Justice Department veterans who have been critical of Trump.

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Neal Katyal, who was the acting solicitor general in the Obama administration, told MSNBC's Lawrence O'Donnell that "to bury this is, I think, detrimental to what American democracy is all about."

CREW, the group that filed the FOIA lawsuit to obtain the full memo, also slammed the Justice Department's motion and said it would fight it in court.

"The Department of Justice had an opportunity to come clean, turn over the memo, and close the book on the politicization and dishonesty of the past four years," CREW said in a statement. "Last night it chose not to do so. In choosing to fight Judge Jackson's decision, the DOJ is taking a position that is legally and factually wrong and that undercuts efforts to move past the abuses of the last administration."

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