DOJ Releases Redacted OLC Opinion Following Review of the Special Counsel's Report

"Accordingly, were there no constitutional barrier, we would recommend, under the Principles of Federal Prosecution, that you decline to commence such a prosecution."

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On March 22, 2019, Special Counsel Robert Mueller submitted his two-volume report to the Department of Justice. Two days later, Barr sent a letter to Congress describing the report's conclusion. In that summary, he explained that the President did not commit obstruction of Justice, without regard to any Article II immunity.

After reviewing the Special Counsel's final report on these issues; consulting with Department officials, including the Office of Legal Counsel; and applying the principles of federal prosecution that guide our charging decisions, Deputy Attorney General Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel's investigation is not sufficient to establish that the President committed an obstruction-of-justice offense. Our determination was made without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.2

The following month, the Department of Justice released a redacted version of the report. (I wrote a four-part series about the report for Lawfare: 1, 2, 3, and 4).

Earlier this month, Judge Amy Berman Jackson ordered DOJ to produce a memorandum drafted by Steven Engel, the head of OLC, regarding the Mueller report. DOJ has appealed that judgment, but also released a heavily-redacted version of the memorandum. I've transcribed it here:

U.S. Department of Justice
Washington D.C. 20530
March 24, 2019

MEMORANDUM FOR THE ATTORNEY GENERAL

THROUGH: THE DEPUTY ATTORNEY GENERAL
FROM:
Steven A. Engel, Assistant Attorney General, Office of Legal Counsel
Edward C. O'Callaghan, Principal Associate Deputy Attorney General

SUBJECT: Review of the Special Counsel's Report

At your request, we have evaluated Volume II of the Special Counsel's Report on the Investigation into Russian Interference in the 2016 Presidential Election to determine whether the facts recited therein would support initiating or declining the prosecution of the President for obstruction of justice under the Principles of Federal Prosecution, without regard to any constitutional barrier to such a prosecution under Article II of the U.S. Constitution. 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. Our conclusions are the product of those discussions, as well as our review of the Report.

For the reasons stated below, we conclude that the evidence described in Volume II of the Report is not, in our judgment, sufficient to support a conclusion beyond a reasonable doubt that the President violated the obstruction-of-justice statutes.FN1 In addition, we believe that certain of
the conduct examined by the Special Counsel could not, as a matter of law, support an obstruction charge under the circumstances. Accordingly, were there no constitutional barrier, we would recommend, under the Principles of Federal Prosecution, that you decline to commence such a prosecution.

FN1: Given the length and detail of the Special Counsel's Report, we do not recount the relevant facts here. Our discussion and analysis assumes familiarity with the Report as well as much of the background surrounding the Special Counsel's investigation.

I. The Department Should Reach a Conclusion on Whether Prosecution Is Warranted Based on the Findings in Volume II of the Special Counsel's Report

The Special Counsel has investigated certain facts relating to the President's response to the FBI's Russia investigation and to the subsequent Special Counsel investigation. In so doing, the Special Counsel reached no conclusion as to whether the President had violated any criminal law or whether, if so, such conduct warranted prosecution. The Special Counsel considered evaluating such conduct under the Justice Manual standards governing prosecutions and declinations, but determined not to apply that approach for several reasons. The Special Counsel recognized that the Office of Legal Counsel ("OLC") had determined that "a sitting President is constitutionally immune from indictment and criminal prosecution." A Sitting President's Amenability to Indictment and Criminal Prosecution, 24 Op O.L.C. 222, 260 (2000). Although the OLC opinion permitted the investigation of a sitting President, the Special Counsel concluded that it would be unfair to reach any charging decision, because the President would not then be afforded any opportunity to clear his name before an impartial adjudicator. Accordingly, the Report identifies evidence on both sides of the obstruction question and leaves unresolved what it viewed as "difficult issues" concerning whether the President's actions and intent could be viewed as obstruction of justice.

Although the Special Counsel has declined to reach a conclusion, we think that the Department should reach a judgment on this matter. Under traditional principles of prosecution, the Department either brings charges or it does not. Because the Department brings charges against an individual only where the admissible evidence would support the proof of such charges beyond a reasonable doubt, any uncertainty concerning the facts or the law underlying a proposed prosecution ultimately must be resolved in favor of that individual. That principle does not change simply because the subject of the investigation is the President. 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.

[6.5 pages of redacted text]

RECOMMENDATION: We recommend that you conclude that, under the Principles of Federal Prosecution, the evidence developed during the Special Counsel 's investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.

APPROVE: [Signature of Attorney General Barr on 3/24/19]
DISAPPROVE:
OTHER:

Engel's comments are largely consistent with what Barr told Congress, and the public. I also read the Mueller report the same way that Engel did.

NEXT: "How the Liberal Media Dismissed the Lab-Leak Theory and Smeared Its Supporters"

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  1. >”Because the Department brings charges against an individual only where the admissible evidence would support the proof of such charges beyond a reasonable doubt, any uncertainty concerning the facts or the law underlying a proposed prosecution ultimately must be resolved in favor of that individual.”

    LOL what a bunch of bullshit. That standard has never once applied to anyone targeted by the regime. If it did, America would have a functioning legal system and wouldn’t be on the road to war and cartelization.

    1. Trump listened to the scumbag lawyers around him. He should have fired the FBI, the DOJ, the State Dept. Inauguration Day. He dhould have arrested Mueller and Pelosi for trying to reverse the 2016 election. Payback is coming to this scumbag profession. It will be wicked.

      1. Wait, impeaching a president is a crime?

  2. Everyone with a brain who read Mueller’s report saw there was no crimes. Weissman’s legal “theories” were blue Anon tier conspiracies, which is why his writing exhibited copious amounts of hedging and feckless qualifiers. If anything, the hundreds of pages of incompetence detailed in the report exonerate the orange retard of being remotely capable of one scintilla of obstruction.

    1. No, the Mueller report was full of straight up collusion and obstruction all over the place. You obviously haven’t read it. Bill Barr just lied.

      (This has been a small preview of the paid shill responses. Please standby for the full feature product.)

      1. I’ve read it, and I’m in full agreement with Appleseed: Mueller identified no crimes (By Trump) he had any proof of.

  3. While appreciated, those who continue to blindly believe in the Russia Conspiracy theory likely won’t change their mind…

    Perhaps they will, and they can remark on it here.

    1. This is worse. Jackson knows the Russian Conspiracy theory isn’t true, yet it’s in her best interest to keep it going. Her family has deep ties to the entertainment industry and the Democratic machine (lookup the sweetheart deal she gave Jesse Jackson Jr.). On the bright side, this nonsense is still better than the scamdemic and the clearly astroturfed “racial reckoning”. Now that the A team has succeeded in their color revolution, they may be returning more control to the B team.

      1. Jackson knows the Russian Conspiracy theory isn’t true…

        And Manafort didn’t give campaign polling data to someone even his partner Gates believed was a Russian spy, while Manafort discussed a “peace” plan in Ukraine with said spy that would carve out part of the country to become a Russian puppet state.

        But hey, Manafort got his promised pardon for staying strong and not completely flipping on Trump, so all is good.

        1. And said ‘spy’ didn’t regularly meet with Fusion GPS before and after such meetings because they were setups just so people could write such things. This is fun, two can play.

          1. I’m not sure who you are talking about, but I am talking about Konstantin Kilimnik. This Treasury Department release lists what he has done.

            “During the 2016 U.S. presidential election campaign, Kilimnik provided the Russian Intelligence Services with sensitive information on polling and campaign strategy.”

            He had gotten this information from Manafort. Recently released, lightly redacted DoJ documents detail the lies Manafort told about all of this to investigators that blew up his previous plea agreement.

            I’d say that this is only exhibit #1 in the evidence that there was more than enough justification for the Russia investigation, even if Trump himself didn’t get involved in anything that could be called “collusion”. Then again, if Trump’s onetime campaign manager is known to have given internal campaign polling data to Kilimnik, who almost certainly handed it off to Russian intelligence (all the better to target the disinformation coming from their troll farm), then what would “collusion” look like if not that?

            How do you “Russia Hoax” people explain this away?

  4. “In that summary, he explained”

    Where “explained” = “contended lamely and conveniently”

    Is this supposed to be an academic blog?

  5. “Engel’s comments are largely consistent with what Barr told Congress, and the public. I also read the Mueller report the same way that Engel did.”

    Mr. Mueller (and apparently Judge Jackson) likely would have concluded that you were full of it, too.

    The whining and wailing at this blog when former Pres. Trump is indicted and extradited should be quite a treat.

    1. By the time the investigation ended, Mr. Mueller was as senile as Biden. if you watched his testimony, it was sad. Therefore, I don’t think he would conclude much of anything.

      And hate to break it to you but very unlikely Trump is extradited even if indicted. Never going to happen because all it takes is a single jurisdiction to say pound sand and there’s absolutely nothing the feds would be able to do. Regime would never risk looking that powerless. You can keep hoping, but Trump will fade into obscurity and keep collecting his pension in addition to donations from gullible boomer cons.

      1. Is that a Liberty or Regent law degree talking, is that something you think you remember from a discount homeschooling outline, or is that what you heard on Hannity or Ingraham tonight?

        It would be great fun to watch Trump holed up at Mar-a-Lago, desperately hoping that enough Republicans are elected in Florida or the relevant county to prevent him from being delivered to the arms of justice.

        I gather his children and some of his friends would join him in seeking asylum. A nice 10-year family gathering, always worried about being snatched by the police.

        1. Maybe if he doesn’t remain holed up, military jets could force his plane down over an extradition-friendly state?

        2. No, that’s somebody watching Mueller testify about his not knowing what was in his own report.

          I personally don’t think it was senility, so much as having been coached by counsel that you can’t face perjury charges for saying “I don’t recall”. But either way, it was pretty embarrassing.

    2. I see that this site continues to be infested with apologists for fascism.

      1. I would support a fascist state if those in charge were competent. Unfortunately, the regime largely consists of ugly, sniveling, and weak people-pleasing strivers who hide behind megacorps and NGOs. When the ruling class’s mandate comes from being “liked” rather than their blood, the resulting state is unstable. Remember that an aristocrat doesn’t give a damn what people think of him. The final state of this perverse “democratic” experiment is a degenerate combination of mob rule and kleptocracy.

        1. You will comply with the preferences of your betters for the rest of your life, Johnny Appleseed.

          You (and other clingers) get to whine about it as much as you want, though, and to join the Conspirators at nipping weakly at the ankles of the liberal-libertarian mainstream you resent and obey.

          1. Well, THAT was amusing. What’s the difference between you and Appleseed, Kirkland? Who you think is the other’s better?

  6. Is this the same Engel who disgraced himself in the context of the torture memoranda? If so, he certainly is a dutiful right-winger. A paltry man serving the causes of immoral authoritarianism, stale bigotry, and vanquished conservatism.

    Carry on, clingers . . . but only so far and so long as your betters permit.

  7. And yet this supposedly “libertarian” web site supported the unconstitutional and immoral persecution of Trump and his associates, a persecution which was – even at the time – clearly based on nothing but political animus.

    That persecution is ongoing of course. Our fascist police state continues its efforts to harass and stifle Donald Trump to this day.

    1. Disaffected, dejected, delusional clingers are among my favorite culture war casualties.

  8. The so-called “Department of Justice”, a grotesque institution never contemplated in the Constitution, is the antithesis of justice, and obstructing it cannot be “obstruction of justice”.

    1. In my opinion, because the president is ultimately in charge of the Justice Department it should be considered legally impossible for the president to obstruct an investigation. He would be obstructing himself (acting through an agent). Encouraging people to mislead Congress is a different story.

      1. Yes, that was an obvious point at the time, that a lot of people were making: Presidents are legally entitled to tell prosecutors under them that a case isn’t worth pursuing, go do something else more important. Prosecutorial discretion isn’t obstruction of justice, so long as it isn’t resulting from corrupt motivation, (Or accomplished by criminal acts/threats.) and you have to prove the corrupt motivation, not just assume it.

        Once there’s any even vaguely plausible non-corrupt motivation available, that becomes hopelessly difficult short of an outright confession.

        Now, if Trump had told his underlings, “Drop this Flynn thing or I’ll have somebody firebomb your house.”, that would be illegal. But, “Drop this Flynn thing in the interest of justice, and because you’ve got more important things to do, that’s an order.” is perfectly lawful. But he didn’t even do that, he just urged the matter be dropped.

        Bill Clinton could have been nailed on obstruction of justice, but that’s because he wasn’t ordering underlings to desist, he was suborning perjury and having evidence under subpoena collected and destroyed. Actual unlawful acts that made motive irrelevant.

  9. Another mutee.

    1. After a while it’s going to be interesting to see a network graph of mutings at this site. I’m betting we’re eventually going to devolve into two mostly self-contained and mutually exclusive groups with a minimum of overlap.

  10. Today’s Trump-related news (other than at a White, male, right-wing blog) is that Vance has established a six-month grand jury.

    Open wider, clingers.

  11. I have to let Eugene know, this is exactly the kind of thread ‘mute’ really shines.

  12. I want to see the 6.5 redacted pages.

    1. Someone has to unmute them first…

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