“That’s not what our report said”: Ex-Mueller prosecutor says Barr's Trump memo is “legally wrong”

Former Mueller deputy Andrew Weissmann called the memo a "doozy" and "quite a shocking document"

By Igor Derysh

Senior News Editor

Published August 25, 2022 9:29AM (EDT)

U.S. President Donald Trump and Attorney General William Barr speak in the Oval Office before signing an executive order related to regulating social media (Doug MIlls-Pool/Getty Images)
U.S. President Donald Trump and Attorney General William Barr speak in the Oval Office before signing an executive order related to regulating social media (Doug MIlls-Pool/Getty Images)

Former federal prosecutor Andrew Weissmann on Wednesday pushed back on a newly released Justice Department memo explaining the decision not to charge former President Donald Trump with obstruction in special counsel Bob Mueller's investigation.

The Justice Department on Wednesday released the unredacted version of a 2019 memo that argued Trump should not be charged with obstruction in response to a court ruling. The Mueller report detailed 10 potential acts of obstruction of justice by Trump but left the decision on whether to charge him to DOJ leaders.

The nine-page memo by DOJ lawyers Steven Engel and Ed O'Callaghan argued that the DOJ should decline to bring charges against Trump even if there were no constitutional questions.

The memo argued that Trump should not be charged with obstruction because Mueller did not establish any "underlying crime related to Russian interference."

"Given that conclusion, 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," the memo argued. The document also argued that Trump may not have been seeking to cover up potential crimes but merely making "efforts to defend himself from public criticism… or to discourage the witnesses from making what the President believed might be false statements in exchange for a lesser sentence."

Then-Attorney General Bill Barr announced that the DOJ would not prosecute Trump the same day the memo was delivered, citing its reasoning. The watchdog group Citizens for Responsibility and Ethics in Washington (CREW) sued for the release of the unredacted memo. Judge Amy Berman Jackson, during the proceedings accused Barr of being "disingenuous" about his summary of the Mueller report findings and that Barr's mind appeared to already be made up before the memo was even written.

Weissmann, who served as a lead prosecutor on Mueller's team and successfully convicted former Trump campaign chief Paul Manafort, disputed the memo's arguments and pushed back on the claim that Mueller's investigation found no evidence of an underlying crime.

"That's not what our report said," Weissmann told MSNBC. "It said that there's evidence. It's just that we didn't think there was evidence beyond a reasonable doubt. So, the sort of upshot is I can understand why the department fought long and hard not to have this see the light of day and it's quite a shocking document."

Weissmann added that the DOJ reasoning is also "dead wrong."

"That is legally wrong," he said. "Our report actually addresses that… and this memo simply does not successfully, at least in my view, address the legal precedents, and it is not the case that you cannot be guilty of obstruction if you didn't commit the underlying crime."

Weissmann called the memo a "doozy" and zeroed in on a specific passage of the memo urging Barr to make a decision.

Want a daily wrap-up of all the news and commentary Salon has to offer? Subscribe to our morning newsletter, Crash Course.

"Although the Special Counsel recognized the unfairness of levying an accusation against the President without bringing criminal charges, the Report's failure to take a position on the matters described therein might be read to imply such an accusation if the confidential report were released to the public," the memo said. "Therefore, we recommend that you examine the Report to determine whether prosecution would be appropriate given the evidence recounted in the Special Counsel's Report, the underlying law, and traditional principles of federal prosecution."

Weissmann called out the passage during his appearance on MSNBC.

"There is a sentence in here that is astounding to me," he said. "The two senior staff, say to Bill Barr that the reason he should make the decision is because if the memo comes out it might be read to imply that the president committed obstruction."

Weissmann added that the memo appeared to show why Barr did not consult Mueller on whether the president committed a crime.

"We now know clearly from his memo that he did not send it back to Mueller — who reported to him — was because he knew exactly what the answer would be," Weissmann said. "Because it says in black and white that this memo could be read to conclude that the president committed obstruction."

Other legal experts also criticized the DOJ's arguments. Norm Eisen, a former White House ethics lawyer and the co-founder of CREW, called the memo "garbage."

"NO wonder a series of judges have slammed Barr for dishonesty in connection with all this," he tweeted. "Anyone else woulda been prosecuted. Barr should be disciplined."

CREW President Noah Bookbinder said in a statement that the memo takes a "breathtakingly generous view of the law and facts" and "twists the facts and law to benefit Trump."

"The memo is not just wrong; it is dangerous coming from a usually respected office at the Department of Justice," he said. "It is clear why Barr did not want the public to see it."

By Igor Derysh

Igor Derysh is Salon's senior news editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

MORE FROM Igor Derysh

Related Topics ------------------------------------------

Aggregate Andrew Weissmann Bill Barr Bob Mueller Donald Trump Politics