DOJ ordered to release memo advising Barr on not pursuing Trump obstruction charges

A federal judge ordered the release of an Office of Legal Counsel memo supporting former Attorney General William Barr’s decision not to pursue obstruction of justice[1] against former President Donald Trump following the release of special counsel Robert Mueller’s report.

Judge Amy Berman Jackson released a 41-page opinion on Monday rejecting arguments from the Trump DOJ that the advisory memo from March 2019 had been part of the deliberative process and subject to attorney-client privilege and thus not subject to public release following a Freedom of Information Act lawsuit by Citizens for Responsibility and Ethics in Washington. Instead, the Obama appointee who handed down[2] longtime Trump associate Roger Stone’s 40-month sentence last year after overseeing the GOP operative’s jury conviction in November 2019, critiqued Barr’s handling[3] of the Mueller report and ordered the OLC document to be released, giving the Biden DOJ until May 17 to decide if it wanted to pursue a stay of her decision.

Paul Colborn, a special counsel in the OLC, had told the court that “the document is a predecisional memorandum, submitted by senior officials of the Department to the Attorney General, and containing advice and analysis supporting a recommendation regarding the decision he was considering.”

But Jackson said, “CREW had difficulty swallowing this explanation” and quoted the group saying: “DOJ’s … arguments rest on the demonstrably false proposition that the memo was submitted to the Attorney General to assist him in making a legitimate decision on whether to initiate or decline prosecution of the President for obstructing justice.”

Jackson contended that her review of the redacted 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.”

Mueller’s report[4], released in April 2019, noted his investigation “identified numerous links between the Russian government and the Trump campaign” but “did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.”

On the issue of possible obstruction of justice[5], Mueller said he “determined not to apply an approach that could potentially result in a judgment that the president committed crimes” but that “while this report does not conclude that the president committed a crime, it also does not exonerate him.”

Barr’s letter[6], written in March 2019 after he received Mueller’s report but prior to its release, did quote Mueller’s comments on a lack of exoneration and said: “The Special Counsel … did not draw a conclusion — one way or the other — as to whether the examined conduct constituted obstruction.”

Barr wrote: “The Special Counsel’s decision to describe the facts of his obstruction investigation without reaching any legal conclusions leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime” and that he and former Deputy Attorney General Rod Rosenstein concluded that it was not sufficient to establish criminality.

“Before the weekend was over, he sent a letter to congressional leaders purporting to ‘summarize the principal conclusions’ set out in the Report, compressing the approximately 200 highly detailed and painstakingly footnoted pages of Volume I – which discusses the Russian government’s interference in the election and any links or coordination with the Trump campaign – and the almost 200 equally detailed pages of Volume II – which concerns acts taken by then-President Trump in connection with the investigation – into less than four pages,” Jackson wrote, adding, “The Attorney General’s characterization of what he’d hardly had time to skim, much less, study closely, prompted an immediate reaction, as politicians and pundits took to their microphones and Twitter feeds to decry what they feared was an attempt to hide the ball.”

Jackson said that “even the customarily taciturn Special Counsel was moved to pen an extraordinary public rebuke” that month, which said that “the summary letter the Department sent to Congress and released to the public … did not fully capture the context, nature, and substance of this Office’s work and conclusions.”

Judge Reggie Walton, an appointee of President George W. Bush, said last year in a FOIA case that “the speed by which Attorney General Barr released to the public the summary of Special Counsel Mueller’s principal conclusions, coupled with the fact that Attorney General Barr failed to provide a thorough representation of the findings set forth in the Mueller Report, causes the Court to question whether Attorney General Barr’s intent was to create a one-sided narrative about the Mueller Report.”

The judge added that it was “a narrative that is clearly in some respects substantively at odds with the redacted version of the Mueller Report.”

Walton also said he had “grave concerns about the objectivity of the process that preceded the public release of the redacted version of the Mueller Report” and its “impacts on the Justice Department’s subsequent justifications.”

DOJ spokeswoman Kerri Kupec pushed back[7] last year, calling the court’s assertions “contrary to the facts.”

“The original redactions in the public report were made by Department attorneys, in consultation with senior members of Special Counsel Mueller’s team, prosecutors in the U.S. Attorney’s Offices, and members of the Intelligence Community,” Kupec said[8]. “In response to FOIA requests, the entire report was then reviewed by career attorneys, including different career attorneys with expertise in FOIA cases — a process in which the Attorney General played no role. There is no basis to question the work or good faith of any of these career Department lawyers.”

Kupec said[9] the Justice Department “stands by” the work of the DOJ officials who made the redaction decisions and defended Barr’s “efforts to provide as much transparency as possible in connection with the Special Counsel’s confidential report.”

Jackson referenced Walton’s comments on Monday.

“And of even greater importance to this decision, the affidavits are so inconsistent with evidence in the record, they are not worthy of credence. The review of the unredacted document in camera reveals that the suspicions voiced by the judge in EPIC and the plaintiff here were well-founded, and that not only was the Attorney General being disingenuous then, but DOJ has been disingenuous to this Court with respect to the existence of a decision-making process that should be shielded by the deliberative process privilege. The agency’s redactions and incomplete explanations obfuscate the true purpose of the memorandum, and the excised portions belie the notion that it fell to the Attorney General to make a prosecution decision or that any such decision was on the table at any time.”

During a May 2019 news conference after the report’s release, Mueller offered some cover[10] to Barr in explaining what transpired behind the scenes during the Justice Department’s redaction process.

“At one point in time, I requested that certain portions of the report be released,” Mueller said. “The attorney general preferred to make the entire report public all at once. We appreciate that the attorney general made the report largely public, and I certainly do not question the attorney general’s good faith in that decision.”

DOJ Inspector General Michael Horowitz went on to unearth a host of problems with the FBI’s Crossfire Hurricane investigation.


  1. ^ obstruction of justice (
  2. ^ handed down (
  3. ^ Barr’s handling (
  4. ^ report (
  5. ^ obstruction of justice (
  6. ^ letter (
  7. ^ pushed back (
  8. ^ said (
  9. ^ said (
  10. ^ offered some cover (