The new disclosures offer further evidence of the extent to which Barr sought to shield Trump from the implications of the Mueller report.
Mueller delivered his 400-plus page report to Barr on March 22, 2019. Just two days later, Barr sent a four-page letter to Congress purporting to summarize the "principal conclusions” of the report. Concerning whether Trump had obstructed justice, Barr noted that Mueller had declined to make a traditional prosecutorial judgment and claimed it therefore fell to him, as attorney general, to make that determination. He then announced his own conclusion: “the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.”
When the redacted Mueller report was finally released three weeks later, it became apparent how misleading Barr’s announcement had been. Mueller had presented compelling evidence of obstruction of justice by the former president. He declined to take a final position on obstruction because of an internal Justice Department opinion that a sitting president cannot be indicted. He certainly did not suggest that he thought Barr should make that call for him. But by that point, Barr’s “spin” on the report had taken a firm hold, with the president repeatedly using Barr’s conclusions to claim he had been fully exonerated.
The current litigation before Jackson concerns a memo to Barr from senior Justice Department officials. Titled “Review of the Special Counsel’s Report,” it is dated March 24, 2019, the same day as Barr’s letter to Congress. In response to a Freedom of Information Act lawsuit, Trump’s Justice Department sought to withhold the memo, claiming it contained privileged legal analysis and advice to the attorney general.
The judge rejected this characterization, noting that the memo and Barr’s letter to Congress were all “being written by the very same people at the very same time.” She concluded that, within the senior echelons of the Justice Department, it was a given that Trump would not be prosecuted. The memo, she held, was not intended to advise Barr in making a decision but rather to assist in “public relations” and help prepare a “preemptive strike on the Mueller report.”
News reports indicate that at least part of the legal analysis in the portion of the memo still being withheld discusses whether a president may ever be charged with obstruction for acts taken as part of his official duties. Barr himself, before being appointed attorney general, famously wrote a 19-page memo to Justice officials laying out his arguments about why such obstruction of justice charges against a president would be an unconstitutional infringement of executive authority.
But Barr’s pronouncement to Congress that the evidence did not support obstruction failed to point out that his conclusions rested, at least in part, on his views about the special status of the president. And he did not acknowledge that Mueller himself thoroughly debunked those legal arguments in his report, demonstrating why obstruction of justice charges against a corrupt president were not only possible but also potentially essential to upholding the rule of law. Instead, Barr suggested that the evidence of obstruction was simply not there — not that Trump was shielded by virtue of his office from prosecution for conduct that would be obstruction of justice if done by anyone else.
Jackson is not alone in concluding that, when it came to the Mueller report, Barr and his Justice Department were engaged not in objective legal analysis but in public relations on Trump’s behalf. In an earlier case involving challenges to redactions to the report, Judge Reggie Walton noted his concern that Barr had tried to create a “one-sided narrative” about the report that was at odds with Mueller’s actual conclusions. Now Jackson has concluded that although the Trump DOJ tried to convince her Barr had truly weighed the obstruction charges, in truth Barr’s decision that Trump did not obstruct justice was a foregone conclusion.
Many have criticized President Biden’s Justice Department for deciding to appeal the order to release the memo. The decision puts Attorney General Merrick Garland in a tough spot. Certainly the Biden administration has no interest in sheltering misconduct by former Trump officials. But Garland also has to worry about setting legal precedents that might chill the flow of legitimate advice to the attorney general in future cases.
What we have already seen is damning enough, however. When Trump appointed Barr he got just what he bargained for: an attorney general who would act as a backstop against any obstruction of justice charges against the president he served.
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