OLC’s advice on charging Trump with obstruction came after Barr and Rosenstein talked to OLC

OLC’s advice on charging Trump with obstruction came after Barr and Rosenstein talked to OLC

Earlier this month, Judge Amy Berman Jackson ruled that Attorney General William Barr had intentionally mislead both Congress and the public through his slanted “summary” of the Mueller report. Judge Jackson also noted that this was part of a pattern of deception by Barr.

That ruling also drew attention to an unreleased internal memo showing how Barr and others at the Justice Department had strained to come up with justification to not charge Donald Trump with obstruction. Jackson called Barr’s actions “disingenuous” and said that the reasoning in the memo did not match Barr’s statements made at the time of the release of his summary.

On Monday evening, a portion of that memo was released over objections from Barr and the Department of Justice, which is continuing to fight the release of the remaining document. The memo, written by the Office of Legal Counsel (OLC), does recommend against charging Trump with obstruction, but makes it clear that this isn’t a decision made in a vacuum. Instead, it says “over the course of the Special Counsel’s investigation, we have previously discussed these issues within the Department among ourselves, with the Deputy Attorney General, and with you since your appointment, as well as with the Special Counsel and his staff.”

So both Barr and Rod Rosenstein had discussed this exact issue—of whether Trump could be charged with obstruction—with the Office of Legal Counsel before the OLC wrote the memo that Barr used to justify not making the charge. Which, at the very least, makes this whole justification suspiciously circular.

In terms of its legal background, the level of cross contamination here makes the advice from the OLC highly dubious. Those involved in authoring the memo have clearly talked to the Mueller team about the subject outside of the evidence presented in the report, talked with Rosenstein about the topic even before Barr’s arrival, and spoken explicitly about obstruction with Barr. For Barr to then claim he relied in large part on a memo that he seems to have had a large role in shaping makes it impossible to say how much of that OLC “advice” was simply parroting Barr’s own words.

However, the portion of the memo released does seem to mirror Barr’s claims about that advice. It restates that Mueller’s team was unwilling—specifically because of OLC rulings that Trump was “constitutionally immune from indictment and criminal prosecution”—to level a charge of obstruction. It then states that the OLC believes the Mueller Report is “not, in our judgement, sufficient to support a conclusion beyond a reasonable doubt that the President violate the obstruction-of-justice statutes.”

But the way the memo justifies reaching this conclusion is through the “reasons stated below,” and all of those reasons remain redacted.

Considering the way that Jackson spoke about this memo, there are good reasons to suspect that the problem goes beyond Barr citing an OLC ruling that he’s already had a hand in crafting. The statement that Barr had been “disingenuous” explicitly addressed the contents of the memo. Jackson also called Barr’s statements concerning the memo “so inconsistent with evidence in the record, they are not worthy of credence.” This certainly suggests that what remains under all that black ink on the memo undermines the idea that this was an airtight case for blocking obstruction charges. 

The reasoning in the memo may be consistent with previous OLC statements. It may be contorted beyond all reason. It may reflect a department intentionally shaping its statement to meet a decision that was made long before the Mueller report appeared. We don’t know. And the OLC is continuing to fight against the release of the remaining portion of the memo.

However, there is another source of behind the scenes legal wrangling that may soon provide some illumination. Former White House Counsel Don McGahn has agreed to testify before the House Judiciary Committee next week concerning Trump’s efforts to obstruct the Russia investigation.

Maybe.

According to The New York Times, McGahn’s testimony “was contingent upon there being no active legal challenge to his participation in the matter.” Secondhand reports indicate that Trump first threatened to intervene, then agreed not to intervene. But with testimony a week away, all it would take would be for Trump to hold up a last-minute flag for McGahn to clam up.

The testimony being sought is actually connected to an effort by the Judiciary Committee to call McGahn two years ago. But at the time, McGahn failed to show after Trump instructed him to refuse a congressional subpoena. That refusal spent the last two years in court, with the American public picking up the tab on Trump’s efforts to keep McGahn from speaking. In theory, that means if Trump wanted to block McGahn now he would have to pick up the legal bills himself, but considering McGahn’s statements, it seems that he would likely refuse to testify if Trump so much as raised an objection.

Even if McGahn does appear, it’s unclear how much he will be willing to say, and how much he will claim is covered by either lawyer-client privilege or executive privilege. Like the heavily redacted OLC memo, it seems likely that McGahn will simply confirm what’s already known and hide the rest.

On the other hand, he might also find that it’s harder to fight off subpoenas and lawsuits without being able to use the Department of Justice as a private law firm.

From Daily Kos at Read More. This article is republished from DailyKos under an open content license. Read the original article at DailyKos.

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