WASHINGTON – The Biden administration has decided to wage a legal battle to keep most of a Trump-era Justice Department note secret related to the much-disputed statement by Attorney General William P. Barr in 2019 that authorized President Donald J. Trump to illegally obstruct justice in Russia’s investigation.
On Monday, in a request last night, the Justice Department appealed part of a scathing district court ruling ordering it to make the entire note public. Two senior department officials wrote the document while helping Mr. Barr write a letter to Congress stating that the evidence in the report, which was still secret at the time, was insufficient to accuse Mr. Trump of a crime.
The drafted part of the document examines nearly a dozen episodes presented as a concern for obstruction of justice that were detailed in the report by Special Counsel Robert S. Mueller III and which has at least two sections, according to two people informed about it.
One set out the possible legal theories according to which Mr. Trump could have been prosecuted, people said. The other examined whether the evidence for any of the episodes constituted evidence beyond a reasonable doubt. The note is said to conclude that no charge was viable.
The decision to continue to hide this analysis of public control places the Biden administration in a politically awkward position of trying to cover up a record that would shed new light on an act by Mr. Barr that Democrats consider notorious. But it also allows the department to defend two institutional interests: its ability to keep internal legal analysis secret and the actions of career officials that a judge accused of cheating the court.
The Department of Justice published the first and a half pages of the nine-page note. Although Mueller has refused to issue a judgment on whether Trump should be prosecuted, because the department’s policy was not to accuse an incumbent president, the note said Mr. Barr should offer his opinion on the tests to shape public understanding of the report. .
“While the Special Counsel acknowledged the injustice of filing an indictment against the President without filing criminal charges, the fact that the report does not take a position on the matters described in it could involve such an indictment if the confidential report was made public, ”wrote Steven A. Engel and Edward C. O’Callaghan, two senior Justice Department officials during the Trump administration.
The department also agreed to disclose additional parts of Judge Amy Berman Jackson’s ruling this month, in which she had labeled her previous presentations on the note as “ungenious.” Some parts of his sentence that discussed the first part of the note had been drafted.
The court on Tuesday overturned a more glaring version of the sentence. He revealed that Judge Jackson had also accused the department of having “deliberately concealed” material in the note that contradicted the notion that Mr. Barr needed to offer public opinion on the tax merit of the evidence accumulated by Mr. Mueller. The exercise, he said, was “purely hypothetical” and fundamentally “making a leap in public relations.”
Noting that she had discovered the existence of this first part of the note only after insisting on reading it for herself instead of relying on the department’s representations in that regard, Judge Jackson also wrote, “DOJ went to make a strategic decision to pretend that the first part of the memorandum was not there and to avoid acknowledging that what the writers were really discussing was how to neutralize the impact of the report in the public opinion court ”.
The new Justice Department case apologized for, but also defended, its Barr-era claims in court over the note. He said department officials could have been clearer, but that they were nonetheless accurate on the central legal issue: whether the nature of the note was pre-decisive and deliberative and therefore exempt from disclosure. Some erroneous steps, he argued, did not justify the publication of the entire document.
Mr. Barr’s assertion that the evidence does not show that Trump committed any felony of obstruction with charges has been widely criticized for being deeply misleading. Among other consequences, a government surveillance group, CREW, filed a lawsuit under the Freedom of Information Act in the U.S. District Court in Washington, seeking disclosure materials on the matter, which led to the fight for the note.
Mueller’s own report – which Mr. Barr allowed to be made public weeks after his letter to Congress had created the impression that the fruits of the investigation cleared Mr. Trump of obstructions – detailed multiple actions by Mr. Trump that many legal experts they say they were clearly enough to ask a grand jury to charge him with a charge of obstruction of justice.
These actions included Trump’s attempt to intimidate his White House attorney, Donald F. McGahn II, into issuing a statement or writing a note falsely denying that the president had directed him to fire Mr. Mueller, effectively falsifying evidence that has contradicted the testimony of Mr. McGahn about that event.
Mr McGahn, who refused to issue instructions to remove Mr Mueller and subsequently falsely deny this episode, according to Mueller’s report, will testify in private next week before the House Judiciary Committee on these matters.
Trump’s actions also included a potential pardon to his former campaign president, Paul Manafort, for encouraging him not to cooperate with investigators.
Mr. Trump later pardoned Mr. Manafort, who had refused to cooperate with Mr. Mueller on some key issues.
Testifying before the Senate Judiciary Committee in May 2019, Mr. Barr offered some explanations as to why he did not believe he deserved charges for some of the 10 episodes the Mueller report had reported as a concern of obstruction. One of the people said the testimony was supported and matched the still hidden parts of the note.
“We took each of the 10 episodes and evaluated them in relation to the analytical framework that the special adviser had established,” Barr said at the time. “And we concluded that the evidence developed during the special attorney’s investigation was not sufficient to establish that the president committed a felony of obstruction of justice.”
For example, several episodes focused on the use or attempt to use his Trump power to remove subordinate officials from the executive branch. They included his shot in 2017 of the F.BI. director James B. Comey Jr., the act that led to Mr. Mueller’s appointment, and his unsuccessful efforts to persuade subordinates to dismiss him.
Barr stated that “as a matter of law,” obstruction statutes enacted by Congress did not limit the president’s power to dismiss a special attorney.
This view, which is answered, combines with his own theory of presidential power. However, in the deliberations, department officials also focused on the lack of historical precedents for prosecuting a current president or an ex for firing a subordinate, the two said.
In his testimony, Barr also stated that the evidence was not sufficient to show that Trump had deliberately attempted to obstruct the investigation, apart from legal theories.
For example, Barr said, one of the main reasons Trump fired Mr. Comey was his “refusal to tell the public what he was saying in private to the president, which was that the president was not being investigated.” The justification of Mr. Trump to try to fire Mr. Mueller was an alleged conflict of interest and, if Mr. Trump had been successful, Barr said, he could have been named a “substitute” presumably.
But the Trump Justice Department never made public its full analysis of all the episodes the Mueller report presented. This is the analysis that the Biden administration seeks to keep secret.
Judge Jackson had given the department until Monday night to respond to his order to release the note and, by extension, found that officials had been “despicable in this court” about its nature in court records arguing that it could be kept legally secret.
In addition to the officials who omitted the existence of the first part of the note in the descriptions presented to him, Judge Jackson also criticized the qualification of the document as pre-decisional. Mr. Barr, he wrote, had already decided not to initiate any prosecution against Trump when the note was written, and instead it was about strategy and arguments that could be brought together to support that decision.
In its presentation, Biden’s Justice Department said previous submissions “could have been clearer and deeply regrets the confusion it caused.” But he also insisted that the “statements and writings of the department were accurate and presented in good faith.”
The department also presented a narrow view of the issues with its earlier statements on the note, focusing on the inaccuracy of whether Barr had been considering whether to prosecute Mr. Trump at the time, as he had suggested in some places. – or if he thought Trump could be indicted after leaving office.
Although Engel and O’Callaghan completed the note after Barr had decided to say the evidence would not support the obstruction charges, the department argued that the legal analysis part of the note memorized advice they had provided before Mr. Barr made that decision.
“The government acknowledges that his writings could have been clearer and deeply regrets the confusion he caused,” the Justice Department file said. “But the government’s lawyers and declarants had no intention of deceiving the court and the government respectfully states” that any false step did not yet justify the publication of the full note.
Katie Benner and Michael S. Schmidt contributed to the reports.