Charlie Savage Profile picture
New York Times national security & legal reporter • Author of "Takeover" & "Power Wars" • I hope Twitter lives but Mastodon: charlie_savage@masto.ai

Aug 24, 2022, 17 tweets

BREAKING: DOJ has released the full memo to then Attorney General Bill Barr analyzing why Trump should not be charged with obstruction-of-justice based on the Mueller report. DOJ had fought but lost a @CREWcrew FOIA lawsuit seeking this disclosure. int.nyt.com/data/documentt…

2/ Vol II of the Mueller report detailed numerous episode raising potential obstruction of justice concerns. Barr purported to clear Trump of all of them, but never publicly discussed many of them. Here are some of the most important ones from the report: nytimes.com/2019/04/23/us/…

/3 An overarching premise is that Mueller did not find evidence sufficient to charge Trump with conspiring with Russia, so there was no underlying crime. (It does not raise the possibility that Mueller failed to get that evidence because his investigation was obstructed.)

4/ The Mueller report strongly suggested that the Mueller team thought Trump dangling a pardon at Manafort to induce him not to cooperate with their investigation met the necessary elements of obstruction.

5/ The Barr memo -- which reads like a defense lawyer's brief -- never mentions pardon dangling and characterizes Trump as merely praising or condemning witnesses based on whether they cooperated with investigators.

6/ The memo argues for interpreting this as Trump not wanting Manafort etc to make up false evidence against him. It again bolsters that by characterizing Mueller's failure to obtain sufficient evidence to charge any conspiracy with Russia as meaning there was none.

7/ Another significant episode was Trump pressuring McGahn to publicly lie and write a memo for the file falsely denying that Trump had pushed him to fire Mueller, both of which McGahn refused to do.

8/ The memo characterizes McGahn's memory of this episode as "ambiguous" and since Trump denied it, says it could not be proved beyond a reasonable doubt.

9/ When McGahn testified under oath about that episode before Congress in 2017, he backed the Mueller report's account as accurate.

10/ It also argues it wasn't obstruction when Trump tried to get McGahn to write a memo denying the attempted firing bc McGahn had already told Mueller about it. It doesn't address that a memo contradicting his testimony would undermine his ability to be a witness in any trial.

11/ As for the attempted firing of Mueller itself....

12/ The memo stresses that Trump's aides refused to carry out his orders. While it acknowledges that an unsuccessful attempt to commit a crime is still a criminal act, it argues that since Trump backed down prosecutors could not prove his intent beyond a reasonable doubt.

13/ The memo uses the same rationale to dispose of Trump's unsuccessful attempts to get aides to curtail or gut the Russia investigation, which it conflated with his unsuccessful attempt to have Mueller fired.

14/ As for urging Comey to go easy on Flynn and firing Comey, the memo argues there are explanations for both (e.g., frustration that Comey wouldn't say publicly what he was saying privately) that do not rise to obstruction. The Mueller report also characterized those as murkier.

15/ The memo ends, first, by arguing that "the most compelling interpretation" of Trump's conduct was that he reasonably believe that Mueller's investigation was interfering with his governing agenda.

16/ As a kind of PS, it argues against interpreting obstruction laws as applying to officials with supervisory authority over investigations, which echoes a memo that private citizen Barr wrote for Trump's team in 2018 before he became attorney general. int.nyt.com/data/documenth…

Some of this analysis has now been incorporated into this conventional news story: nytimes.com/2022/08/24/us/…

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