Mueller prosecutor finds ‘astounding’ passage in Barr memo on Trump obstruction

A top prosecutor for special counsel Robert Mueller called a Justice Department memo supporting Attorney General William Barr‘s decision not to prosecute former President Donald Trump for obstruction of justice in the Russia investigation a “shocking” document.

Andrew Weissmann, a former Justice Department official and FBI general counsel who was known as Mueller’s “pitbull,” offered his analysis on Wednesday after the left-leaning government watchdog group, Citizens for Responsibility and Ethics, secured the release of the unredacted memo in a Freedom of Information Act lawsuit. He drew attention to one “astounding” passage during an appearance on MSNBC.

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That passage appears to be: “Although the Special Counsel recognized the unfairness of levying an accusation against the President without bringing criminal charges, the Report’s failure to take a position on the matters described therein might be read to imply such an accusation if the confidential report were released to the public. Therefore, we recommend that you examine the Report to determine whether prosecution would be appropriate given the evidence recounted in the Special Counsel’s Report, the underlying law, and traditional principles of federal prosecution.” In fact, that passage was already revealed in a redacted version of the memo released last year. The legal and factual analysis sections beneath it remained redacted until Wednesday.

“Bill Barr, we now know clearly from his memo, did not send it back to Mueller, who reported to him, because he knew exactly what the answer would be because it says in black and white that this memo could be read to conclude that the president committed obstruction,” Weissmann said.

Mueller, in his report, said he could not establish a criminal conspiracy between Russia and the Trump campaign. He also outlined 10 instances of possible obstruction of justice, including a desire by Trump to fire Mueller, but did not reach any conclusions on them. The special counsel said he “determined not to apply an approach that could potentially result in a judgment that the president committed crimes” but that “while this report does not conclude that the president committed a crime, it also does not exonerate him.”

Before releasing Mueller’s report in April 2019, Barr said he and Deputy Attorney General Rod Rosenstein concluded that there was not sufficient evidence to establish Trump committed an obstruction-of-justice offense.

Justice Department officials had argued the nine-page Office of Legal Counsel memo, dated March 24, 2019, was redacted to protect internal discussions about making a decision about whether to prosecute, but a three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit agreed with a lower-court judge who found Barr had already concluded Trump would not be charged with a crime.

Weissmann, who played an instrumental role in winning convictions against former Trump campaign officials Paul Manafort and Rick Gates during the Russia investigation, later lamented how he believed the special counsel “could have done more.” Since the special counsel investigation, Weissmann has periodically appeared on TV to comment on other Trump-related investigations.

He told MSNBC anchor Nicolle Wallace there was a “dead wrong” legal point made in the memo, among other problems.

“They say that the president essentially didn’t commit obstruction because there’s no precedent for finding that somebody commits obstruction unless they’re also guilty of the underlying crime for which they obstructed. That is legally wrong,” Weissmann said.

“The final point is the memo really gets the Mueller report wrong because they seem to think that we found that there was no evidence of the underlying crime, meaning conspiracy with the Russians,” he added. “That’s not what our report said. It said that there’s evidence. It’s just that we didn’t think there was evidence beyond a reasonable doubt. So the sort of upshot, Nicolle is, I can understand why the department has fought long and hard and not to have this see the light of day and it’s quite a shocking document.”

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The Russia investigation, which Trump derided as a “witch hunt,” is now under review by special counsel John Durham. Trump thanked CREW for successfully suing to release the memo, highlighting a number of passages that he said indicated there was not sufficient evidence to charge him, and then alluded to the recent FBI raid of his Florida residence in a separate matter.

“CREW is devastated by these findings, that they worked so hard to ‘expose,’ but may now move on to the even more ridiculous Witch Hunt that has already caused a great Mar-a-Lago Red Wave with the voters of our Nation!” Trump said in a statement.