DOJ releases few pages of memo concluding evidence didn't support Trump prosecution
Former President Donald Trump. Photo from Shutterstock.
The U.S. Department of Justice on Monday evening released the first one-and-a-half pages of a nine-page internal memo concluding that former President Donald Trump should not be prosecuted for obstruction of justice.
The initial pages indicate that former U.S. Attorney General William Barr and DOJ officials had discussed whether facts in former special counsel Robert Mueller’s report supported prosecution of Trump even before the memo was written, the Washington Post reports.
Law.com also has coverage.
The March 2019 memo is from Steven Engel, the assistant attorney general from the DOJ’s Office of Legal Counsel; and Edward O’Callaghan, principal associate deputy attorney general.
U.S. District Judge Amy Berman Jackson of Washington, D.C., had ordered release of the full memo earlier this month. After a review of the document, she concluded that it was not protected by the deliberative-process privilege because a decision against prosecution “was a given.” She also concluded that the memo did not amount to legal advice protected by attorney-client privilege.
Berman ruled in a Freedom of Information Act lawsuit filed by Citizens for Responsibility and Ethics in Washington.
In a May 24 motion and supporting memorandum, the DOJ asked Jackson to issue a partial stay to block release of the rest of the March 2019 memo pending an appeal. The government’s motion argues that the unreleased portion of the memo is protected from release because it is “deliberative and predecisional.”
The DOJ argued that the memo was predecisional because it memorialized advice provided during the decision-making process.
The issue addressed in the memo was whether the facts in the Mueller report constituted an offense that would warrant prosecution, not whether Trump should be prosecuted, as Jackson wrongly assumed from government briefs, the government argued.
“We regret that we did not make this distinction clearer in our briefing,” the government said.
Prosecution was foreclosed by an earlier memo by the Office of Legal Counsel that said an indictment of a sitting president would violate the separation of powers, the DOJ told Jackson.
Law.com sees U.S. Attorney General Merrick Garland’s bid to keep secret most of the Trump memo as “an example of the balancing act presented when it comes to handling Trump-era cases and preventing politics from appearing to influence those choices.”