Government lawyers advised Barr not to bring obstruction charges against Trump after Mueller report, newly-released memo reveals
A Justice Department memo from 2019 that was released Wednesday revealed government lawyers urged then-Attorney General William Barr to decline to bring obstruction charges against President Donald Trump based on their ruling that the then-president had not "corruptly" sought to interfere with special counsel Robert Mueller's probe.
"A fair evaluation of the Special Counsel's findings and legal theories weighs in favor of declining prosecution," wrote Steven Engel, the assistant Attorney General for the Office of Legal Counsel, and Justice Department official Edward O'Callaghan in the memo.
Following the completion of his investigation into allegations of Russian meddling in the 2016 presidential election, Mueller determined that no one of Trump's campaign could be charged with working with the foreign country towards a favorable electoral outcome.
Despite examining 10 "discrete acts" in which Mueller said Trump might have obstructed the investigation, Mueller notably decided not to reach a conclusion as to whether the then-president actually did so, leaving the decision on obstruction charges to the Justice Department.
"If we had confidence after a thorough investigation of the facts that the president clearly did not commit obstruction of justice we would so state," the special counsel wrote in his final report, "while this report does not conclude that the President committed a crime, it also does not exonerate him."
At Barr's request, the Department officials said in the memo that they examined case law and applicable precedent, as well as the evidence in Mueller's report. They ruled that because Trump was not accused by Mueller of any underlying crime, he could not be accused of obstructing the investigation.
The report, they wrote, "identifies no actions that, in our judgment, constituted obstructive acts...with the corrupt intent necessary to warrant prosecution."
"The evidence does not establish a crime or criminal conspiracy involving the President toward which any obstruction or attempted obstruction by the President was directed."
Following receipt of the March 24, 2019 Memo, Barr decided not to bring obstruction charges against Trump.
The record, which had not previously been released, was ordered unsealed by an Appeals Court after a FOIA request and subsequent lawsuit were filed seeking its release.
The Justice Department officials told Barr in the memo that, "wholly apart from constitutional considerations" about whether a sitting president can be charged with a crime, the evidence did not suggest beyond a reasonable doubt that obstruction occurred.
"We believe that certain of the conduct examined by the Special Counsel could not, as a matter of law, support an obstruction charge under the circumstances," the officials said.
The Justice Department's Office of Legal Counsel, for which Engel worked, has a long-standing ruling that "a sitting President is constitutionally immune from indictment and criminal prosecution," which the memo says Mueller also noted in his findings.
Barr and O'Callaghan did not immediately respond to CBS News' request for comment. Engel declined to comment.
In the final report, Mueller and his team evaluated numerous instances in which obstructive behavior by the former president may have occurred, including Trump's push to get the Counsel fired, pressure on then-FBI Director James Comey – who Trump later fired despite assurances from Comey that he was not under investigation – and public statements calling out Mueller witnesses urging them not to testify against him.
But Engel and O'Callaghan determined there was reasonable doubt that Trump acted to impede Mueller's probe, but that it was to prevent personal and political harm. Further, they argued, none of the acts Trump is alleged to have promoted were actually carried out.
"There is considerable evidence to suggest that [Trump] took these official actions not for an illegal purpose, but rather because he believed the investigation was politically motivated and undermined his Administration's efforts to govern."
The inability to discern the intent behind Trump's actions, the memo concluded, was key.
Trump repeatedly decried the Justice Department's decision to appoint Mueller and privately told then-Attorney General Jeff Sessions that the move could have spelled "the end" of his presidency, according to the report.
Despite Mueller's suggestion in the final report that "[Trump]'s exercise of executive discretion for any improper reason, including the prevention of personal embarrassment, could constitute obstruction of justice," Engel and O'Callaghan told Barr they deemed Mueller's interpretation of the law to be overbroad and incorrect.
"We do not believe that any of these events establish obstruction of justice," they wrote, adding that they found Mueller's work to be "thorough" and conceding that the Justice Department had never before been "under remotely similar circumstances."
After Mueller completed his report, but before it was publicly released, Barr himself summarized the findings, informing Congress that Mueller found that Trump did not conspire with Russia and did not obstruct the investigation. In his summary, Barr did not detail the instances in which Mueller said Trump might have committed obstruction.
"After reviewing the Special Counsel's final report on these issues; consulting with Department officials, including the Office of Legal Counsel; and applying the principles of federal prosecution that guide our charging decisions, Deputy Attorney General Rod Rosenstein and I have 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," Barr wrote in March 2019. "Our determination was made without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president."
Lawmakers criticized the summary as unfaithful to Mueller's findings and a federal judge in Washington, D.C. later criticized Barr's summary as lacking "candor."
But Barr told CBS News in the months after the release of the report that Mueller "could've reached a decision" on the question of Trump's alleged obstruction.
"The [Office of Legal Counsel] opinion says you cannot indict a president while he is in office, but he could've reached a decision as to whether it was criminal activity," Barr added. "But he had his reasons for not doing it, which he explained and I am not going to, you know, argue about those reasons."
Barr and Engel later became embroiled in Trump's frustration with his loss in the 2020 presidential election. Both men were interviewed by the House committee investigating the Jan. 6 attack on the Capitol and Engel himself was a witness at one of the committee's public hearings.
Barr, who resigned before the events of Jan. 6, notably called Trump's unsubstantiated claims of election fraud "bull****" in recorded testimony that was played by the committee. Engel said he was in the Oval Office with the former president when he unsuccessfully tried to replace Barr's replacement with another official who promoted the false claims of a stolen election.