The Left and the media long suspected that the Department of Justice memo upon which former Attorney General William Barr based his decision not to prosecute then-president Donald Trump for obstruction of justice contained a “smoking gun” that would prove Trump guilty and discredit Barr’s conclusions.
Judge Amy Berman Jackson apparently put that theory to rest when she ordered the release of part of the memo that dealt with how Barr reached that decision. Barr relied on advice from several sources, including the Office of Legal Counsel. The OLC recommended against prosecuting Trump, not only because there are constitutional issues with prosecuting a president for obstruction, but also because even if Trump were a private citizen, there wouldn’t be enough evidence to charge him.
Recall that Special Counsel Robert Mueller left the decision on charging Trump with obstruction to the attorney general. After listening to many opinions, Barr said there wasn’t enough evidence to justify an indictment.
The parts of the memo released so far call into question Mueller’s decision not to exonerate Trump himself. Perhaps Mueller was hoping that Barr’s DOJ would find a way to prosecute the president where he could not.
The Justice Department filing is likely to both fuel and frustrate Trump’s biggest critics, particularly Democrats who have long argued that Barr stage-managed an exoneration of Trump after Mueller submitted a 448-page report into his findings about his investigation into whether the 2016 Trump campaign conspired with Russia to interfere in the election, and whether Trump tried to obstruct that investigation.
The central document at issue is a March 2019 memo written by two senior Justice Department officials arguing that aside from important constitutional reasons not to accuse the president of a crime, the evidence gathered by Mueller did not rise to the level of a prosecutable case, even if Trump were not president.
Judge Jackson had earlier issued a blistering assessment of Barr’s “disingenuousness” about what was in the memo and the series of events that led to his decision. Jackson ordered the entire memo released.
But now the Biden DOJ has stepped in and is appealing Jackson’s ruling.
“In retrospect, the government acknowledges that its briefs could have been clearer, and it deeply regrets the confusion that caused. But the government’s counsel and declarants did not intend to mislead the Court,” the Justice Department lawyers wrote in asking that the rest of the memo be kept secret.
Indeed, the OLC memo was fairly clear in its conclusions that “certain of the conduct examined by the Special Counsel could not, as a matter of law, support an obstruction charge under the circumstances. Accordingly, were there no constitutional barrier, we would recommend, under the Principles of Federal Prosecution, that you decline to commence such a prosecution.”
Recommended (From 2019): The Case for Obstruction in the Mueller Report May Not Be as Strong as the MSM Thinks It Is
Ed Morrissey agrees that Barr has credibility problems but that there’s nothing “unethical” about Barr consulting with OLC.
Even if there are credibility issues arising from the way Barr and the DoJ described the decision process (and there are), there is nothing unethical or even unusual about consultations with the OLC on legal points and policies. Had Barr been consulting with Mueller all along without disclosing it, that might have been a problem for the credibility of Mueller’s report. This, however, appears to be in line with the OLC’s purpose — as an advisory board, not an independent watchdog. Like so many of the supposed gotchas in the Russia-collusion quest, this one winds up as nothing much more than a process issue.
The Left is mostly quiet about the release of this memo. It’s not quite the bombshell they were looking for. The bottom line is that legally, Trump could not be prosecuted even if he wasn’t president. That’s not going down very well on the Left today.