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WASHINGTON – The Biden administration has decided to open a lawsuit to keep secret most of a Justice Department memo from the Trump-era related to the controversial 2019 statement by Attorney General William P. Barr, in the President Donald J. Trump was exempted from unlawful obstruction of justice by the Russia investigation.
In a nightly filing on Monday, the Justice Department appealed part of a damning District Court ruling ordering the entire memo to be published. Two senior department officials were writing the document at the same time they were helping Mr. Barr draft a letter to Congress claiming that the evidence in the then-classified report was insufficient to charge Mr. Trump with a crime.
The still-edited portion of the document examines nearly a dozen episodes cited as raising concerns about obstruction of justice and listed in Special Envoy Robert S. Mueller III’s report. According to two people who have been informed, it consists of at least two sections of it.
Possible legal theories were put forward that Mr Trump could have been prosecuted, people said. The other checked that the evidence for any of the consequences was unequivocal evidence. The memo is intended to conclude that no charges were viable.
The decision to continue to hide this analysis from public scrutiny puts the Biden administration in the politically difficult position of covering up a record that would shed new light on an act by Mr Barr that the Democrats consider infamous. But it also enables the department to defend two institutional interests: the ability to keep internal legal analysis secret and the actions of professional officials accused by a judge of misleading the court.
The Justice Department published the first page and a half of the nine-page memo. While Mr Miller had refused to pass judgment on whether Mr Trump should be prosecuted for the division’s policy of not indicting a sitting president, the memo stated that Mr Barr should give his opinion on the evidence to shape the public understanding of the report.
“Although the Special Adviser recognized the injustice of bringing charges against the President without bringing criminal charges, the report’s failure to comment on the matters described could imply such an allegation if the confidential report was made available to the public would. Written Steven A. Engel and Edward C. O’Callaghan, two senior Justice Department officials during the Trump administration.
The department also agreed to release additional portions of Judge Amy Berman Jackson’s verdict earlier this month, calling her previous submissions to the memo “insincere.” Parts of their decision that discussed the first part of the memo had been edited.
The court unsealed a more brilliant version of the judgment on Tuesday. It emerged that Judge Jackson had also accused the division of having “deliberately undercover” material in the memo that contradicted the notion that Mr. Barr should make a public opinion about the prosecution of Mr. Mueller’s accumulated evidence. The exercise, she said, was instead “purely hypothetical” and basically “a leap into public relations”.
Judge Jackson noted that she only discovered the existence of this first part of the memo after insisting on reading it for herself rather than relying on the department’s accounts, and wrote, “The DOJ made a strategic decision so to pretend it was the first part of the memorandum was absent, and so as not to acknowledge that the authors were actually discussing how to neutralize the impact of the report in the court of public opinion. “
The Justice Department’s new filing apologized for the Barr-era claims to the court about the memo, but also defended it. It said that department officials could have been clearer, but they were correct on the key legal issue: whether the nature of the memo was determinative and advisory and thus exempt from disclosure. Failures did not justify releasing the entire document.
Mr Barr’s claim that the evidence did not show that Mr Trump had committed a criminal disability crime has been widely criticized as being deeply misleading. Among other things, a government surveillance group, CREW, filed a Freedom of Information Act lawsuit in the US District Court in Washington for disclosure material on the matter, which led to the dispute over the memo.
The Mueller report itself, which Mr. Barr was allowed to publish weeks after his letter to Congress, gave the impression that the fruits of the investigation had freed Mr. Trump from the disability. It contained several actions by Mr Trump that many legal specialists believed were sufficient to ask a grand jury to charge him with obstruction of justice.
Such acts included Mr Trump’s attempt to harass his White House attorney Donald F. McGahn II, make a statement, or write a memo that would falsely deny that the President ordered him to fire Mr Miller – What Effectively Falsified Evidence I have contradicted Mr. McGahn’s testimony about this event.
Mr McGahn, who refused to give instructions to remove Mr Miller and later falsely deny this episode, will testify privately to the House Judiciary Committee next week on such matters, according to the Miller report.
Mr Trump’s actions also included giving his former campaign chairman Paul Manafort a possible pardon to encourage him not to cooperate with investigators.
Mr Trump later pardoned Mr Manafort, who had refused to work with Mr Miller on certain key issues.
When testifying before the Senate Judiciary Committee in May 2019, Mr Barr made some statements as to why he disagreed with indictments for some of the ten episodes reported by the Mueller report that raised disability concerns , is justified. One of the people said that the testimony was accessed and interlinked with the still-hidden parts of the memo.
“We recorded each of the 10 episodes and rated them against the analytical framework set by the special adviser,” Barr said at the time. “And we came to the conclusion that the evidence developed during the special envoy’s investigation was insufficient to establish that the president had committed a crime against the judiciary.”
For example, several episodes revolved around Mr. Trump’s use or attempted use of his powers to remove subordinate officers from the executive branch. That included his dismissal of the F.BI in 2017. Director James B. Comey Jr. – the act that led to the appointment of Mr. Miller – and his unsuccessful efforts to convince subordinates to release Mr. Miller.
Mr. Barr testified that “for legal reasons”, the disability laws passed by Congress did not limit the president’s authority to remove a particular attorney.
This controversial view is in line with his own comprehensive theory of presidential power. However, during the deliberations, department officials also focused on the lack of a historical precedent for prosecuting a current or former president for firing a subordinate, the two people said.
In his testimony, Mr Barr also claimed that there was insufficient evidence to prove that Mr Trump had deliberately tried to criminally obstruct the investigation, apart from legal theories.
For example, Mr Barr said, a major reason Mr Trump fired Mr Comey was because of his “refusal to tell the public what he told the President in private, which was that the President was not investigated.” Mr. Trump’s rationale for attempting to fire Mr. Mueller was an alleged conflict of interest, and if Mr. Trump had succeeded, Mr. Barr said, a replacement would “probably” have been appointed.
However, Trump’s Justice Department has never released its full analysis of all of the episodes set out in the Mueller report. This is the analysis the Biden government wants to keep a secret.
Judge Jackson had given the department until Monday evening to respond to her order to disclose the memo – and, more broadly, her finding that officials had been “insincere” to that court about its nature in court records by arguing that it could lawfully be kept a secret.
In addition to the officials who omitted the presence of the first part of the memo in the descriptions of the memo presented to her, Judge Jackson also criticized the characterization of the document as preliminary. Mr. Barr, she wrote, had already made a decision not to prosecute Mr. Trump when the memo was written, and instead dealt with strategies and arguments that could be put together in support of that decision.
In its filing, Biden’s Justice Department said the previous filings “could have been clearer and it deeply regrets the confusion it has caused.” However, it also insisted that “the department’s statements and submissions were correct and submitted in good faith.”
The department also took a narrow view of the issues with their earlier statements on the memo, focusing on the inaccuracy as to whether or not Mr Barr was considering starting a prosecution against Mr Trump at that moment – as had been suggested in some places whether he was considering whether Mr. Trump could be charged after he left office.
Although Mr. Engel and Mr. O’Callaghan completed the memo after Mr. Barr decided to say that the evidence would not support the disability charge, the division argued that the legal analysis part of the memo Commemorative advice they had given before Mr. Barr made that decision.
“The government acknowledges that its pleadings could have been clearer and deeply regrets the confusion it has caused,” the Biden Justice Department file read. “But the government attorney and registrants had no intention of misleading the court, and the government respectfully submits” that missteps still did not warrant the publication of the entire memo.
Katie Benner and Michael S. Schmidt Contribution to reporting.