DOJ recommended against Trump prosecution on obstruction in Mueller probe: newly released 2019 memo reveals

The Department of Justice Office of Legal Counsel (OLC) in 2019 said prosecution of then-President Donald Trump for obstruction of justice during the Russia investigation “would not be warranted” — a recommendation that the team of lawyers gave to then-Attorney General Bill Barr at the conclusion of special counsel Robert Mueller’s investigation.

A federal appeals court ordered the Justice Department last week to release an internal memo written on March 24, 2019, by the OLC about whether Trump had obstructed justice.

The DOJ released the memo Wednesday, which revealed that the OLC, which is considered to be the top legal adviser to the attorney general, found that the evidence described in Mueller’s report was “not, in our judgement, sufficient to support a conclusion beyond a reasonable doubt that the President violated the obstruction-of-justice statutes.”

“In addition, 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,” states the memo written by Steven Engel, former assistant attorney general for the OLC. “Accordingly, were there no constitutional barrier, we would recommend, under the Principles of Federal Prosecution, that you decline to commence such a prosecution.”

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After nearly two years, Mueller’s investigation, which concluded in March 2019, yielded no evidence of criminal conspiracy or coordination between the Trump campaign and Russian officials during the 2016 presidential election.

Mueller, though, did not draw a conclusion on whether the president obstructed justice.

Mueller submitted his full report to Barr in late March. Days later, Barr released a four-page summary of the findings, noting Mueller’s team found no evidence that members of the Trump campaign conspired with the Russians during the 2016 presidential election.

At the time, Barr and then-Deputy Attorney General Rod Rosenstein concluded that the evidence from the Mueller case was “not sufficient to establish that the President committed an obstruction-of-justice offense.”

The memo released Wednesday served as the basis for Barr and Rosenstein’s decision.

“A fair evaluation on the special council’s findings and legal theories weighs in favor of declining prosecution,” the OLC wrote. “While cataloguing actions that the president took, many of which took place in public view, the report identifies no actions that, in our judgment, constituted obstructive acts, done with a nexus to a pending proceeding, with the corrupt intent necessary to warrant prosecution under the obstruction-of-justice statutes.”

The OLC added that “prosecution would not be warranted in these circumstances wholly apart from constitutional considerations.”

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The memo said that Mueller’s “thorough investigation did not establish that the president committed any underlying crime related to Russian interference.”

“In every successful obstruction case…the corrupt acts were undertaken to prevent the investigation and prosecution of a separate crime,” Engel and former DOJ official Edward O’Callaghan wrote, adding that “the absence of underlying guilt is relevant and powerful evidence in assessing whether otherwise innocent actions were undertaken with a corrupt motive.”

Meanwhile, Barr has said that he “personally felt” Mueller “could’ve reached a decision” on obstruction.

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Mueller, in April 2019, in announcing his findings to the public, said that if his office “had confidence that the president clearly did not commit a crime, we would have said that.”

“We did not determine whether the president did commit a crime,” Mueller said regarding obstruction. “We concluded that we would not reach a determination one way or the other about whether the president committed a crime. That is the office’s final position.”

Congressional Democrats, at the time, seized on Mueller’s public statements and opened investigations into Trump’s alleged obstruction of justice.