Jurisprudence

The One Big Lesson for Merrick Garland in the Newly Released Barr Memo

Trump and Barr sit at a table with their hands clasped.
Bill Barr and Donald Trump in friendlier times. Mandel Ngan/Getty Images

On Wednesday, the Department of Justice finally released a memo that explained former Attorney General Bill Barr’s decision not to prosecute Donald Trump in connection with the Mueller Report. With that revelation, one big mystery has been solved: We now know why Democratic and Republican appointed federal judges excoriated Barr for dishonesty in hiding the memo and distorting Mueller’s report. The memo is flat-out wrong on the facts and the law.

As an original co-founder of the watchdog group Citizens for Ethics in Washington (CREW), I am proud that my former colleagues forced the memo into public view through litigation. But I am dismayed to have such striking evidence of a former attorney general’s disregard for the law and facts—and of his patron’s as yet unpunished obstruction of justice.

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For example, Mueller presented powerful evidence that Trump repeatedly told his first White House Counsel Donald McGahn to tell lies about the investigation, including creating a false written record. The Mueller report made a compelling case that these actions could support a reasonable inference of obstruction of justice. Yet the memo says “none of these instances indicate that the president sought to conceal evidence of criminal conduct.” That conclusion beggars belief.

The memo also says that the former president’s grooming witnesses before they testified and then turning on them if they implicated him did not qualify as obstruction. Tell that to former Trump attorney Michael Cohen, who was the subject of repeated presidential intimidation targeting him and his family before his 2019 House Oversight Committee testimony. When I interviewed Cohen while investigating Trump’s obstructions as counsel in the first impeachment, he told me of the devastating effect that had.

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The memo speaks of all this in mild terms, as Trump “appear[ing] to praise or condemn” witnesses, when he was actually doing much worse. Trump’s behavior went so far as dangling pardons to his former campaign chairman Paul Manafort (who later received one). The memo bends the facts so far that it breaks them.

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Its treatment of the law is as bad. The notion that there are no comparable legal precedents to justify prosecution, as the memo claims, is laughable. I co-wrote an almost 200 page report in 2018 laying them all out.

For instance, both that report and the memo focus on the same key case: United States v. Cueto (1998). In Trump’s case like in Cueto, someone was under investigation and attempted to interfere with that investigation by taking acts that would have been legal but for corrupt intent. The prosecution in Cueto was held lawful and so would one have been here. The evidence of obstruction that Mueller documented would have resulted in charges for anybody else who did not occupy the Oval Office. Barr gave Trump special treatment—and not because the law or the facts merited it.

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During my service as impeachment counsel, we spent months evaluating the evidence of this potential obstruction, including hearing from Mueller himself as well as meeting with his prosecutors and looking at the evidence underlying his investigation, much of which is still not public.

But inside access is not needed to see that something is rotten here. It was always puzzling how this memo was submitted just two days after Barr received the 400-page Mueller report. How could he and his colleagues possibly process all of that information in 48 hours and come to such a weighty decision not to prosecute? That apparent hastiness was always an indication that Barr’s goal was to cover-up—and not uncover—the truth. But now that we have the memo that is even more clear.

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Remember, before Barr was appointed as attorney general, he wrote a memo to former Deputy Attorney General Rod Rosenstein saying there was no obstruction in Trump’s interactions with former FBI Director James Comey. That was, of course, well before Barr got the Mueller Report. It seems the fix was in.

What do you get when an attorney general covers up presidential obstruction? More obstruction. That is what we saw in the Ukraine investigation that led to the first impeachment proceeding, what a federal judge found likely happened with Trump’s involvement in the attempt to overturn the 2020 election, and what the Justice Department identified as one of the three potential charges in their current document crimes investigation, as reflected in the Mar-a-Lago search warrant.

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Now it is true that Justice Department policy instructs that a sitting president should not be prosecuted. I would argue that this blanket policy is wrong. But even taking it into consideration, if you are the attorney general, you cannot distort available facts and law and then flush a case down the toilet. It is the attorney general’s duty to uphold the rule of law. Here that means preserving the case for the post-presidency by trying to get a tolling agreement, extending the statute of limitations. And if you cannot secure a tolling agreement, then you decide how to proceed with the case from there.

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Make no mistake, questions of whether to charge a sitting president with crimes relating to abuse of his office are hard ones. But that is all the more reason they should be honestly grappled with. Barr’s answers were so wrong that they call his good faith in this whole affair into question, as those two federal judges appointed under presidents of different parties found.

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Barr had somewhat redeemed himself by confronting Trump during the attack on the 2020 election. But the memo reminds us that he is no hero.

His is not the only reputation to take a hit. Mueller made a terrible judgment by not reaching a conclusion on whether Trump committed crimes, leaving the question open so Barr could distort it.

Current Attorney General Merrick Garland and his colleagues should be applauded for not pursuing this appeal further and for releasing the memo. They might have adhered to the traditional norm of protecting the Justice Department’s internal deliberations. But adherence to norms when they don’t fit egregious circumstances is what got Mueller in trouble. When dealing with Trump and his enablers, a different approach is required. That is a lesson to all of us going forward.

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