Bill Barr played a starring role in the January 6 committee’s public hearings this summer when he declared in videotaped testimony that Donald Trump’s election fraud claims were “bullshit,” “completely bullshit,” “stupid,” “crazy,” “complete nonsense,” and “a great, great disservice to the country.” But it’s important to remember that for the majority of the time he was serving as attorney general, Barr operated the Justice Department like it was the 45th president’s personal law firm and his title was “chief footstool to Donald Trump.” Yes, whether he was claiming, with a straight face, that the FBI had violated Trump’s “civil liberties,” using the DOJ to try to kill a rape defamation suit against the president, or attempting to bury the “urgent“ whistle-blower report that became the basis of the House’s first impeachment proceedings against Trump, Barr made his loyalties very, very clear. But in case you needed further evidence that the former AG was a total hack, today’s your lucky day!
On Wednesday, the government released the 2019 DOJ memo Barr used as justification for not charging Trump with obstructing the Mueller investigation, despite the fact that the special counsel found numerous instances of obstruction by Trump that could have resulted in him being charged with a crime, from firing FBI director James Comey and telling a White House lawyer to fire Robert Mueller to warning witnesses not to flip. Yet the memo, which was written, at Barr’s request, by Steven Engel, the former assistant attorney general for the Office of Legal Counsel, and Ed O’Callaghan, the principal associate deputy attorney general, insist none of that was worth taking legal action, a conclusion they came to based on what some say was a twisting of facts and legal falsehoods.
For starters, the memo argues that obstruction charges are usually brought when an individual blocks the investigation and prosecution of an underlying crime, and since the Mueller probe did not establish one, they shouldn‘t charge Trump. That, of course, is not how the law works, which is why if you hide evidence from the cops about an attempted murder that didn’t actually result in someone being killed, you’d very likely still be in trouble. Then, there’s the memo writers’ claim that because other people didn’t go along with Trump‘s attempts to obstruct justice, he shouldn’t be charged. This is, once again, not how the law works! As former Veterans Affairs employee and Mueller, She Wrote podcast host Allison Gill tweeted Wednesday, “That would be like if I told the getaway driver to blow up the bank and [if] they didn’t, I’m off the hook.” The memo also wildly asserts, without evidence, that Trump did the things he did, like asking White House counsel Don McGahn to fire Mueller, “not for an illegal purpose, but rather because he believed the investigation was politically motivated and undermined his administration’s efforts to govern.” It also cites the fact that Trump never literally used the word fire to McGahn when he was talking about Mueller, probably because he operates like a mafia boss who speaks in code. (In sworn testimony, McGahn said Trump called him at home and told him “Mueller has to go” and “call me back when you do it.”) As for Trump then instructing McGahn to lie about trying to get Mueller fired, we already know the Barr DOJ’s thoughts there, given that while testifying, Barr told lawmakers it was “not a crime” for the president to demand staffers lie to investigators.
Responding to the memo on Twitter, Norm Eisen, an attorney and former U.S. ambassador, wrote: “No wonder a series of judges have slammed Barr for dishonesty in connection with all this. It’s garbage. Anyone else woulda been prosecuted. Barr should be disciplined.” Samuel Buell, a Duke University law professor and former prosecutor, told The New York Times: “It reads more like a defense lawyer’s brief than a full and balanced analysis citing the legal authorities.” Ryan Goodman, a New York University law professor, described the memo as a “get out of jail free” card, telling The Times: “It’s hard to stomach a memo that amounts to saying someone is not guilty of obstruction for deliberately trying to induce witnesses not to cooperate with law enforcement in a major criminal investigation.”
Last year, two federal courts concluded that Barr had already decided not to charge Trump before commissioning the memo, and signed it after informing Congress of his decision. When it was released in redacted form in May 2021, Judge Amy Berman Jackson wrote, “The agency’s redactions and incomplete explanations obfuscate the true purpose of the memorandum, and the excised portions belie the notion that it fell to the Attorney General to make a prosecution decision or that any such decision was on the table at any time. The fact that [Trump] would not be prosecuted was a given.”