The memo, if released, would likely provide fodder to Barr’s critics who charge that the attorney general actively distorted the findings of the former special counsel Robert Mueller’s investigation in an effort to protect Trump, or even fuel accusations that he lied to Congress.
The Justice Department has until May 17 to decide whether it will appeal or release the memo.
In the 35-page opinion, Judge Amy Berman Jackson of the DC District Court revisited how Barr orchestrated his rollout of Mueller’s findings and called him “disingenuous,” saying that he wasn’t using the legal advice supposedly contained in the memo because he had already decided not to prosecute Trump.
Jackson wrote that the contents of the redacted memo show the decision not to prosecute Trump had already been made when Barr received the recommendation from the Office of Legal Counsel. But Barr told Congress that the decision not to indict Trump on obstruction of Justice was made in consultation with OLC.
The memo Jackson ordered released could reveal more about the “strategy” Barr and his team thought through as Barr wrote the four-page summary to Congress about what Mueller found two days after his investigation ended. The judge’s opinion, at this point, still redacts significant pieces of her findings and what is written in the memo.
Jackson rejected the Justice Department’s arguments to keep secret the heavily redacted March 2019 memo to Barr about charging Trump with obstruction, arguing that the document was partly strategic planning instead of legal reasoning.
Jackson concluded that the redacted memo showed that it was drafted even though the decision not to prosecute Trump had already been settled, suggesting Barr misled lawmakers and the public about the decision not to charge Trump with obstruction of justice. The opinion included emails showing that Justice Department officials were drafting the memo on obstruction at the same time as the four-page letter Barr sent to Congress summarizing Mueller’s findings.
“The review of the document reveals that the Attorney General was not then engaged in making a decision about whether the President should be charged with obstruction of justice; the fact that he would not be prosecuted was a given,” Jackson wrote.
The Mueller probe thoroughly investigated multiple episodes where Trump tried to impede or end the special counsel’s inquiry into his campaign’s ties to Russia. But Mueller did not make a decision about whether to prosecute Trump, leaving that decision to Barr and his top political appointees.
The Justice Department memo was issued on the same day that Barr released the four-page letter to Congress stating that he and Deputy Attorney General Rod Rosenstein had reached the decision not to charge Trump with obstruction of justice based on the evidence.
But Mueller partly found that Justice Department policy blocked the prosecution of a sitting President — and specifically wrote that the report would have exonerated Trump on obstruction if it could have done so. Barr said in his letter to Congress the decision not to prosecute was not based on whether a sitting president could be indicted.
Barr wrote that he and Rosenstein, in consultation with the Office of Legal Counsel, “concluded 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 noted in her opinion that Trump declared himself fully exonerated based on Barr’s March 2019 letter.
The letter to Congress was the first step in what Barr’s critics charge was an effort to downplay Mueller’s findings. In addition to questions about obstruction of justice, Barr’s letter stated that Mueller’s investigation did not establish conspiracy between the Trump campaign and Russia, but it did not mention that Mueller had documented more than 100 contacts between Trump allies and Russia and that the Trump campaign welcomed the help from Russian-linked officials.
In addition to Jackson, Mueller himself, one of his top former prosecutors, other federal judges and congressional Democrats have slammed Barr for his spin — especially what he told Congress both in a letter and in public testimony in the days after Mueller turned in his final report.
In the nearly four weeks between Barr’s letter summarizing the Mueller report and the April 2019 release of the lightly redacted Mueller report itself, the special counsel wrote a letter to Barr that he “did not fully capture the context, nature, and substance of this Office’s work and conclusions.”
Prosecutor Andrew Weissmann, who led the portion of the Russia investigation into former Trump campaign chairman Paul Manafort and is one of the few who’ve spoken publicly about the team, wrote in his book last year about the investigation that Barr had lied — specifically misleading and omitting information in his first disclosure to Congress.
The letter to Congress, Weissmann wrote, “was a gut punch” to the special counsel’s team and “the first clear signal that the rule of law was no longer inviolate.”
At an April 2019 press conference held ahead of the release of the redacted Mueller report, Barr said that he disagreed with some of Mueller’s “legal theories” on obstruction, but argued that he and Rosenstein “accepted the Special Counsel’s legal framework for purposes of our analysis and evaluated the evidence as presented by the Special Counsel in reaching our conclusion.”
The Justice Department memo on Trump and obstruction of justice isn’t the only legal effort underway to make public documents stemming from the Mueller investigation, as transparency groups and news organizations have filed suits to try to pry open more information from the probe and Barr’s handling of it.
In addition, congressional Democrats are still pursuing legal cases on multiple fronts relating to Trump, including trying to obtain Trump’s tax returns; testimony from former White House counsel Don McGahn, a key witness in Mueller’s obstruction investigation; Mueller’s grand jury material; and Trump’s bank information from Deutsche Bank.