The long-awaited, albeit partial, release of a Justice Department memorandum this week has “frustrated” many in Washington, as the Washington Post predicted. The reason is what it didn’t contain. Critics had sought the memo as a “smoking weapon” to show how former Attorney General Bill Barr sank any obstruction charge against Donald Trump. Instead, the memo showed the opposite. OLC staff actually found that even without defense or privileges related to Trump’s office, the allegations were below the standard of disability.
The obstruction of justice issue was dealt with during Barr’s second term as attorney general. A memo was released prior to his confirmation hearing Barr wrote to Assistant Attorney General Rod Rosenstein about a potentially fatal error in the application of the most likely federal obstruction of justice provision against Trump. Barr was pounded by Democratic senators for his view of disability, as was I when I testified as a witness the next day. I agreed with many of the shortcomings Barr noted in the memo.
Barr’s more nuanced arguments were drowned out by a long litany from experts like Harvard professor Laurence Tribe, who publicly insisted that not only was the disability clearly established (with a long litany of other crimes), but that Barr’s rejection of this crime was evidence of his was raw partisanship. In a public letter to me, Ralph Nader, Lou Fisher and Bruce Fein stated that his rejection of obstruction resembled a “papal encyclical that President Trump was innocent of obstruction of justice,” which Mueller’s Chronicle ignored [of] multiple signs of constipation. “
During that never-ending barrage, Barr remained largely silent about the internal review of the matter and declined to post the full OLC memo. This only fueled speculation that Barr was hiding conflicting conclusions from the legal staff. We now know that the memo supports Barr’s previous view, and yet he withheld the information out of concern for the confidentiality of internal deliberations.
It turns out that the review and debate of the disability allegations began before Barr started serving as attorney general. The memo also confirms that Mueller’s staff were part of that analysis with prosecutors at Main Justice. The memo states that prosecutors have reviewed the Mueller evidence and have concluded that the evidence reviewed by the Special Counsel cannot, under the circumstances, support disability for legal reasons. Accordingly, if it were not a constitutional barrier, we would recommend according to the principles of the Federal Prosecutor’s Office that you refuse to initiate such criminal prosecution. “In plain language, this means that prosecutors came to the same conclusion as Barr that the alleged conduct did not satisfy the elements of this crime. In addition, she stated that she would recommend such an indictment even without considering the constitutional obstacles raised by Trump’s office.
The new information came after Judge Amy Berman Jackson harshly criticized the Justice Department, including the arguments and representations made by the Justice Department in Biden. The Justice Department apologized for the lack of clarity on some points, but said it would appeal the publication of the entire OLC memo.
However, Jackson hit Barr. In releasing his controversial executive summary of the report, Jackson said Barr had suggested that he had little time to review the entire Mueller report when “[t]The fact that he would not be prosecuted was a given. “
Jackson seems to be ignoring the obvious in order to justify the most sensational views on these facts. She explains, “Why did the Attorney General’s advisors, at his request, draw up a memorandum in which the prosecution assessed the benefits of the facts accumulated by the Special Adviser? Lifting the curtain also reveals the answer to that: take a dip in public relations. “
The answer seems obvious. Since his appointment, the issue of disability has been used to fuel allegations of partiality and manipulation of the process. The publication of the report should focus on issues raised by Congress and the general public. While the review of this issue (according to the memo) began prior to Barr’s arrival, he wanted a clear and meaningful record of how that decision was made – and who made it. That certainly anticipates public issues, but it was also a responsible thing. He asked the OLC to provide a formal statement on the matter – just as the Obama administration has done in such important and public controversies. Barr kept a record of the recruiter’s conclusions on an issue of great national importance. I still don’t understand why such a request is inconvenient or unusual.
It is clear that there is more to this memo that we might find something really incriminating or embarrassing, but the OLC review record is not one of them. If Barr had not requested such a letter, the same experts would now question what was finalized and whether Barr imposed his own view previously expressed on the matter. The letter recorded how the conclusion was reached and who came to that conclusion.
The controversy over Barr’s summary has largely centered on a few lines in which he said that Muller’s underlying facts did not satisfy the elements of the crime of disability. It turns out that the employees have drawn that conclusion, as have some of us from the existing and controlling jurisprudence. Additionally, Barr stated that the reason for the delay in publication was to remove grand jury material as required by federal law.
The published parts do not contradict Barr’s claim that he could not simply publish a two-volume, 450-page report. Aspects of this summary can be criticized quite a bit, but the delay in the publication of the report (and the need for a summary) lies more with Mueller. Previous hearings revealed that Barr and Rosenstein Mueller said they wanted his staff to flag the grand jury material because Barr wanted to publish the edited report instead of a summary. Mueller seems to have simply ignored this instruction from his superiors. As a result, a full review had to be conducted with Mueller’s staff to remove the grand jury material, which is mandatory under federal regulations. If Muller had marked and edited the Grand Jury material, the edited report could have been published without much delay, as Barr preferred.
The memo also undermines the allegations made in Donald Trump’s first impeachment. I testified at that hearing and contradicted my three fellow witnesses (Professors Michael Gerhardt, Pamela Karlan and Noah Feldman) who insisted that Trump had obstructed the judiciary. You weren’t alone. Democrats and the media presented a letter from over 450 prosecutors who stated in no uncertain terms: “We all believe that the behavior of President Trump described in Special Counsel Robert Mueller’s report in the case of another person not registered by the law firm, would apply The policy against the indictment of a seated president leads to multiple offenses for obstruction of justice. “The actual Main Justice prosecutors noted that not only would the allegations not meet the standard for obstruction of justice, but that they would also be if Trump were not the President of the United States. The contrast shows the danger of such gotcha letters. With thousands of professors and prosecutors, getting hundreds of signatories to support one side or the other in a controversy isn’t particularly difficult. The Ministry of Justice does not pursue a referendum and therefore.
The day before he was effectively fired by Trump, I had lunch with Barr as we have for many years. He was again publicly upset by the President for refusing to support his election fraud claims and taking action against figures like Hunter Biden. However, he is unlikely to be recognized for what he did for the department during one of the most difficult phases. The story will likely be kinder to Barr than its critics, however. As stated in King Lear, Barr remained “a man more sinned against than sinned against” from beginning to end.