On Monday night, the Justice Department tried to split the difference. It released a brief section of the memo but signaled it will indeed continue to fight its full release.
There are many questions from there, including just how hard it will fight and whether this is something amounting to going through the motions. The release of a portion of the memo suggests it is indeed going to fight this relatively hard, because it hopes this peace offering will suffice.
But perhaps the bigger question is what else is in that memo. The Justice Department, after all, decided to release a mostly introductory portion, but seems to regard the rest as being more sensitive.
And that also carries a Catch-22 for the department.
The memo at issue comes from the Justice Department’s Office of Legal Counsel, which weighs in on legal decisions facing the department. The department decided to release the first four paragraphs of the memo, including an introduction section and (at least part of) a section arguing for why the Justice Department should reach some kind of conclusion on whether prosecution was warranted against Trump.
This is key because Justice Department policy has long been that a president can’t be charged with crimes while in office, and special counsel Robert S. Mueller III wrote in his Russia report that, because of that, it wasn’t his place to accuse Trump of crimes, regardless of the evidence.
At the same time, Mueller laid out extensive evidence that Trump might have committed obstruction in five instances. The question from there was whether the broader Justice Department would say whether there was enough to warrant a prosecution irrespective of Trump’s status as the incumbent president. Then-attorney general William P. Barr, in a misleading summary of the report, sided against doing so.
What we can see of the memo suggests Barr was in alignment with the Office of Legal Counsel, at least to some degree. It says that Volume II of the report — the part dealing with potential obstruction — “is not, in our judgment, sufficient to support a conclusion beyond a reasonable doubt that the President violated obstruction-of-justice statutes.”
But the judge in the case, Amy Berman Jackson, has accused the Justice Department under Barr of misleading about its decision-making process. She said the legal counsel memo was essentially created concurrently with Barr’s opinion rather than in its supposed advisory role — that they “were being written by the very same people at the very same time,” working “hand in hand to craft the advice.”
The implication is that this was a decision in search of a justification.
But what about that fuller justification that we can’t see as the memo progresses?
Law professor Jennifer Taub has a good thread on this, essentially arguing that the Justice Department is darned if it does, and darned if it doesn’t.
One logical option is that the department might have said that a president can’t be charged with virtually any crime related to his duties while serving in office — an argument that would very much be in line with Barr’s expansive view of executive power.
The thing about the evidence against Trump is that it was extensive. Trump repeatedly thumbed his nose at the usual rules on most everything, but also when it came to potential obstruction by anybody not serving as president. Mueller’s report seems to satisfy the three conditions of obstruction charges — an obstructive act, relation to an official legal proceeding and corrupt intent — in upward of five instances. Whether any of them did not fully satisfy all three conditions is up for debate; whether none of the five rose to the level of a chargeable offense is another matter entirely.
If the Justice Department effectively said that such decisions were exempt from criminal charges either during or after a presidency, it would essentially exempt a president from most any type of obstruction. And that could set a remarkable precedent for presidents.
If the memo suggests that Trump might have otherwise obstructed but that he couldn’t be charged because these were acts he engaged in as president, it would significantly broaden the known Justice Department exemption for presidents. We know guidance has said sitting presidents can’t be charged while in office, but if the Justice Department legal counsel office says obstruction is virtually impossible while engaging in presidential business, that would be a much bigger pronouncement. It could also be read to suggest future presidents can do most anything they want when it comes to legal proceedings involving themselves.
A second logical — and not mutually exclusive — option is that the rest of the memo details the instances of potential obstruction in Mueller’s report and finds them compelling, notwithstanding Trump’s status as president. Given the memo is just 10 pages, doing so wouldn’t be overly detailed. But it’s possible.
If that were the case, it would apply significant pressure on the Biden Justice Department to do something about it, now that Trump is out of office. And that might well be something they want to avoid.
But finally, let’s say the memo doesn’t go that far — that it just says Trump’s conduct didn’t rise to the level of chargeable obstruction and that there’s not a broader presidential exemption.
Again, the evidence is significant; Mueller seemed to lean into the idea that Trump’s conduct in five separate cases might well satisfy the three requirements for obstruction. If none of these acts is deemed to be chargeable — regardless of Trump’s status as president — that could also impact future Justice Department cases involving obstruction of justice. To the extent the document becomes public, it would signal a high bar for such charges that future defendants could use to argue that their conduct didn’t rise to the level.
I’ve been skeptical for a long time that Trump would ever be charged with a federal crime, given how politically charged that would be and that he’s now out of office. (He seems to have more legal liability stemming from state and local investigations, particularly in New York.) But exactly how the Justice Department is forced to explain that decision has huge implications.