190322 Barr Memo

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US. Department of Justice
i essen ———
Washingon D.C. 20530
March 24,2019
MEMORANDUM FOR THE ATTORNEY GENERAL -
THROUGH: THE DEPUTY ATTORNEY amend
FROM: Steven A. Engel C5
Assistant Attorney General, Office of Legal Counsel
Edward C. O'Callaghan ZC
Principal Associate Deputy Attomey 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 10 such a prosecution under Article I 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-jusice statutes. In addition, we believe tha certain of
the conduct examined by the Special Counsel could not, as a mater of aw, support an obstruction
charge under the circumsiances. Accordingly, were there no constitutional barrier, we would
recommend, under the Principles of Federal Prosecution, that you decline to commence such a
prosecution
I. The Department Should Reach a Conclusion on Whether Prosecution Is Warranted
Based on the Findings in Volume I of the Special Counsel 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,
1 Given the length and detail of the Special Counsel's Report, we do nt recount the relevant facts here. Our
discussion and analysis assumes familiarity with the Report 5 well much ofthe background suounding he
Special Counsel's imvestgaion

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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 goveming 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
Amenabiliy to Indictment and Criminal Prosecution, 24 Op O.L.C. 222, 260 (2000). Although
the OLC opinion permitted the investigation of a siting 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 cither 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 unfaimess 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.

IL. Prosecution Would Not Be Warranted Based on the Findings in Volume II of the

Special Counsel's Report

A fair evaluation of the Special Counsel's findings and legal theories weighs in favor of
declining prosecution. While cataloguing actions that the President took, many of which took
place in public view, the Report identifies no actions that, in our judgment, constituted obstructive
acts, done with a nexus to a pending proceeding, with the corrupt intent necessary to warrant
prosecution under the obstruction-of-justice statutes. Based on the evidence described and the
legal theories articulated in Volume 11 of the Special Counsel's Report regarding “whether the
President had obstructed justice in connection with Russia-related investigations,” we believe that
prosecution would not be warranted in these circumstances, wholly apart from constitutional
considerations,

A. Principles of Federal Prosecution

“The applicable Principles of Federal Prosecution articulated in the Justice Manual state that
“a determination to prosecute represents a policy judgment that the fundamental interests of society
require the application of federal criminal law to a particular set of circumstances — recognizing
both that serious violations of federal law must be prosecuted, and that prosecution entails

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profound consequences for the accused, crime victims, and their families, whether or not a
‘conviction ultimately results.” Justice Manual § 9-27.001. This statement of principles advances
“two important purposes: ensuring the fair and effective exercise of prosecutorial discretion and
responsibility by attorneys for the goverment, and promoting confidence on the part of the public
and individual defendants that important prosecutorial decisions will be made rationally and
objectively on the merits of each case.” Id.

“These principles must be applied by the Department to all prosecution decisions, no matter
the status of the subjects or targets of the investigation. The Justice Manual instructs that, as a
threshold matter, a prosecutor should only “commence or recommend federal prosecution f he/she:
believes that the person's conduct constitutes a federal offense, and that the admissible evidence
will probably be sufficient to obtain and sustain a conviction.” Justice Manual § 9-27.20
(emphasis added). The Comment to this section further clarifies, “both as a matter of fundamental
faimess and in the interest of the efficient administration of Justice, no prosecution should be
initiated against any person unless the attomey for the government believes that the admissible
evidence is sufficient to obtain and sustain a guilty verdict by an unbiased trier of fact.” id. If these
threshold factors are satisfied, the prosecutor then should weigh other relevant considerations in
deciding whether to commence or recommend a prosecution. See id. §§ 9-27.220 t0 9-27.250.

Applying these principles, if the person's conduct under scrutiny is not a federal offense
or the admissible evidence is not sufficient to obtain and sustain a guilty verdict, then the
prosecution should be declined.

B. There Is No Precedent for an Obstruction Case on Similar Facts

To our knowledge, the Special Counsel's investigation of potential obstruction is not
similar to any reported case that the Department has previously charged under the obstruction-of-
justice statutes. The Report identifies no obstruction case that the Department has pursued under
remotely similar circumstances, and we have not identified any cither. Of course, any investigation
‘concerning the President would be exceptional, but the President is hardly the only public official
who could be subject to investigation. The Department has investigated the potential misuse of
official authority, including the obstruction of official proceedings. in a host of different
circumstances.

‘The Special Counsel's obstruction theory would not only be novel, but, based on his own
analysis, it would also be unusual because Volume I of the Special Counsel's Report is conclusive:
that the evidence developed “was not sufficient to charge that any member of the Trump Campaign
[including the President] conspired or coordinated with representatives of the Russian government
to interfere in the 2016 election.” Given that conclusion, the evidence docs not establish a crime
or criminal conspiracy involving the President toward which any obstruction or attempted
obstruction by the President was directed. It would be rare for federal prosecutors to bring an
obstruction prosecution that did not itself arise out of a proceeding related to a separate crime.
Moreover, much of the President's potentially obstructive conduct amounted to attempts to modify
the process under which the Special Counsel investigation progressed, rather than efforts to impair
or intentionally alter evidence (documentary or testimonial) that would negatively impact the
Special Counsel's ability (0 obtain and develop evidence.

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The Special Counsel's Report cites over a dozen federal obstruction decisions in the
Report, yet in nearly every one, the charged conduct involved (i) inherently wrongful acts to
destroy evidence, to create false evidence, or to tamper with witnesses or jurors, and (i) an effort
0 prevent the investigation or punishment of a separate, underlying crime. We have identified
only two cases that lack one of those elements. The first is Arthur Anderson LLP v. United States,
544 U.S. 696, 707-08 (2005), which concerned the destruction of evidence in advance of an
expected SEC investigation. Although there was no evidence in that case of an underlying crime,
the exception essentially proves the rule, because the Supreme Court vacated the conviction
precisely because the prosecution could have covered innocuous conduct. When it comes to
actions otherwise lawful in themselves, the Court emphasized the need to “exercise restraint in
assessing the reach of a federal criminal statute,” because of the need to provide “fair warning.”
Id. 21696, 703-04. The Court emphasized that such restraint is particularly appropriate where the
“act underlying the conviction .... is by itself innocuous,” is not “inherently malign” and could be
performed for appropriate, non-criminal reasons. /d. In construing the obstruction statute, the
Supreme Court observed that “corrupt” and “corruptly” “are normally associated with wrongful,
immoral, depraved, or evil” conduct, and the Court vacated the conviction because the jury
instruction did not meet that demanding standard. /d. at 705.

“The Report also cites United States v. Cueto, 151 F.34 620, 631 (7th Cir. 1998), which was
a case that clearly involved an effort to protect an underlying crime—namely an illegal gambling
operation—but that also involved actions that would have been lawful if undertaken for a non-
corrupt purpose. The Seventh Circuit there affirmed the conviction of one of the owners of the
gambling operation, because he had repeatedly abused state court processes in order 10 take
discovery from grand jury witnesses in an effort to impede the federal investigation. Although the
obstruction charge involved otherwise lawful conduct, we cannot describe it 4s in any way
resembling the facts described in the Special Counsel's Report.”

In our prior discussions, the Special Counsel has acknowledged that “we have not
uncovered reported cases that involve precisely analogous conduct.” See Special Counsel's Office
Memorandum to the 600.4 File, Preliminary Assessment of Obstruction Evidence, at 12 (July 3,
2018). Indeed, in seeking to identify cases in which the misuse of otherwise lawful authority
established an obstruction case, the memorandum cited three charging documents, two of which
arose from state court and thus did not involve federal criminal violations. See id. All three cases
involved an effort to use official authority 10 prevent the prosecution or punishment of a distinct
crime. The one federal case did not involve just the abuse of official authority, but rather witness
tampering and manufacturing false evidence, concerns that go to the heart of the obstruction
statutes. Accordingly, there simply does not appear to be any clear legal precedent similar to the
kinds of conduct evaluated here.

? The Special Counsel also cites United States v. Cintolo, 818 F.24 980,992 (st Ci. 1987), which recognized that
“any act by any party—whether lawful or unlawful ons ce may abridge § 1503,” but that cae involved both
an inherently Wrongful act tampering with a grand jury witness) and separate, underlying crimes (a legal
‘ambling and loan-sharking operation).

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C. The Report Does Not Identify Any Actions Rising To Obstruction of Justice

We have carefully reviewed Volume II of the Report and concluded that it does not identify
sufficient evidence to prove any criminal offense beyond a reasonable doubt. Although Volume
1 makes no conclusions about the President's conduct, it adopts an expansive reading of 28 U.S.C.
§ 1512(€)(2) as prohibiting any act, including an otherwise lawful act, that impedes an official
proceeding, so long as the act is done with a corrupt intent. According to the Special Counsel,
there is no requirement that the act be inherently malign or impair the availability of witnesses or
evidence. At the same time, the Report advances several definitions of “corruptly,” including one
that would establish intent by proof of an “improper purpose.” The Report thus suggests that the
President's exercise of executive discretion for any improper reason, including the prevention of
personal embarrassment, could constitute obstruction of justice if it impeded a pending
investigation. As we have discussed with you, we do not subscribe to such a reading of the
obstruction-of-justice statutes. No reported case comes close to upholding a conviction of such
breadth, and a line of Supreme Court precedent, including Arthur Anderson, weighs heavily in
favor of objectivity and certainty in the federal criminal law. In order to reach the conclusions in
this memorandum, however, we do ot believe it necessary to address this disagreement further,
because in our view, Volume II of the Report does not establish offenses that would warrant
prosecution, even under such a broad legal framework.

‘The Report evaluates ten episodes involving the President's conduct. For many of those
episodes, the Special Counsel advises that there is significant evidence to indicate that the
President's actions would not meet one or more of the elements of the obstruction-of-justice
statutes. For others, the Special Counsel's evaluation of the evidence is more equivocal, and he
identifies evidence on both sides of the question. Having reviewed the Report in light of the
governing legal principles, and the Principles of Federal Prosecution, we conclude that none of
these instances would warrant a prosecution for obstruction of justice, without regard to the
consfitutional constraint on bringing such an action against a sitting President. Having discussed
ach of these episodes with you on multiple occasions, this memorandum summarizes the reasons
for our conclusions, without analyzing cach and every item described in the Report

1. The President's Response to the FBI's Russia Investigation

“The Special Counsel's Report divides the President's alleged obstructive conduct into two
broad categories, one before he fired the former FBI Director, James Comey, when the President
had been told that he was not personally under investigation; and the other after that firing, when
the President learned that he was then under scrutiny for potential obstruction. The former
category includes the President's private meetings with Comey concerning his “loyalty” and the
investigation of Michael Flynn; the President's efforts to convince his senior national security
officials to confirm publicly that he was not under investigation; and the events surrounding
Comey’s termination.

We do not believe that any of these events establishes obstruction of justice. As the Report
indicates, during this period, the President was repeatedly informed by Comey that he was not
personally under investigation. There is no clear evidence that the President knew of Flynn's
conversation with Kislyak or that he had misrepresented it to the Vice President, prior to McGahn

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informing him of those facts. At the same time, the President repeatedly demonstrated his belief
that the Russia investigation had cast a cloud on his nascent Administration and that it was being
exploited, if not outright conducted, by his political opponents to frustrate his efforts to implement
his agenda. As the Report indicates, many of the President's actions in these matters can readily
be explained by his desire to have the FBI Director or others in the Administration inform the
public that he was not under investigation. Indeed, the Report identifies substantial evidence that
the FBI Director's refusal to make such a public statement was the driving force in the President
terminating him.

We also do not believe that the President’ actions regarding Michael Flynn present any
case of obstruction of justice. The Special Counsel did not uncover any evidence that the President
had any personal culpability in the Flynn investigation or that his actions were motivated by
improper considerations. The President's expression of “hope” that Comey would “let this go”
did not clearly direct a particular action in the Flynn investigation, and Comey did not react at the
time as though he had received a direct order from the President. By the same token, as the Special
Counsel acknowledges, the Presidents decision to remove the FBI Director did not constitute
obstruction either. In our view, none of these actions constitutes a case of obstruction of justice,
either as a matter of law or fact.

2. The Presidents Actions Conceming the Management of the Specia
Counsel's Investigation

The Report also discusses a second category of actions taken by the President aficr the
appointment of the Special Counsel, most notably after he leamed that the Special Counsel had
opened an investigation into potential obstruction of justice. Most of the conduct identified
consists of facially lawful actions that are part of the President's constitutional responsibility to
supervise the Executive Branch. The Special Counsel considers, for example, whether the
President obstructed justice by asking the White House Counsel to direct the firing of the Special
Counsel; by asking Corey Lewandowski to contact the Attorney General and seek his assistance
in narrowing the Special Counsels investigation; and by asking the Attorney General to reverse
his recusal and to supervise the Special Counsel's investigation.

We do not believe that the principles of federal prosecution support charges based upon
any of those actions. As noted, the evidence does not establish that the President took any of these
actions because he sought to prevent the investigation of an underlying criminal offense, separate
and apart from the obstruction case, and the Department rarely brings obstruction cases absent a
separate criminal offense. Such a prosecution is doubly inappropriate where, as here, the conduct
under investigation is lawful on its face, and the evidence of any corrupt motive is, at the very
least, questionable. Federal criminal statutes should be construed to avoid criminalizing generally
innocent conduct. See, e.g., Arthur Anderson, 544 U.S. at 703-04; Ratzlaf . United States, 510
USS. 135, 144 (1994). The standard for demonstrating that a public official acted with corrupt
intent is demanding. And there is considerable evidence to suggest that the President took these
official actions not for an illegal purpose, but rather because he believed the investigation was
politically motivated and undermined his Administration's efforts to govern.

Moreover, in evaluating the nature of the President's conduct, it bears emphasis that none

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of his requests to change the supervision of the investigation were actually carried out. The
conduct under investigation is based entirely upon “directions” by the President to subordinates to
take actions on his behalf that they did not undertake. In cach instance, if the President truly
wanted to cause those actions, he could have done it himself (for instance, ordering the Deputy
Attomey General to terminate the Special Counsel or directing the Attomey General to unrecuse
or to resign). After the President provided his direction, in cach instance, the orders were not
carried out. Of course, it is true that an act may constitute an attempt or an endeavor, even if
unsuccessful. But the facts that the President could have given these directions himself, and did
not remove any subordinate for failing to convey his directions, weigh against finding an intent to
obstruct justice.

3. Conduct Related To Witnesses

The Special Counsel's Report also describes a variety of other actions taken by the
President that could have had some effect on potential witnesses to the investigation. Those actions
include the President's public and private comments concerning the recollections and testimony
of potential witnesses, including the President's effort to encourage the White House Counsel, Don
MeGahn, to deny the newspaper reports that the President had directed McGahn to fre the Special
Counsel: his involvement in responding to media interest in the Trump Tower meeting; and his
public and private statements concerning witnesses, whom he appeared to praise or condemn based
upon whether they were fighting the charges against them or cooperating with the investigation.

The President's actions on these matters more directly implicate the concerns of the
obstruction statute. If the President were to perjure himself, tamper with witness testimony, or
corruptly destroy evidence, then such actions would violate well-established law. But we do not
believe that any of the actions described in the report would meet such a standard. None of these
instances indicate that the President sought to conceal evidence of criminal conduct nor is there
sufficient evidence to prove beyond a reasonable doubt that he sought to provide false evidence to
the investigators.

For instance, when it comes to the President's request that MeGahn deny the newspaper
accounts, the Special Counsel recognizes that there is evidence suggesting that the President
believed the newspaper stories to be false. The President repeatedly protested both to McGahn
and to other witnesses that he believed that he had asked MeGahn to advise the Deputy Attomey
‘General about the Special Counsel's conflicts of interests and thereby induce the appointment of
an unconflicted special counsel. The President vehemently denied telling McGahn that he wanted
to “fire” the Special Counsel, and McGahn recalled the President's direction 10 be more
ambiguous. While other evidence cuts against this understanding, there is insufficient evidence to
conclude beyond a reasonable doubt that the President sought to induce McGahn to lie. In addition,
at the time of this discussion, McGahn had already provided his recollection to investigators, and
the President's principal focus was on rebutting those media reports. Given the timing of this
conversation, there is insufficient evidence to conclude that the President's actions toward
MecGahn, which were themselves ambiguous, were intended to affect the investigation itself.
Therefore, the evidence, in our judgment, does not suffice to warrant any criminal prosecution.

‘We likewise do not believe that the President's public statements exhorting witnesses like

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Flynn, Manafort, Stone, or Cohen, not to “flip” should be viewed as obstruction of justice. The
Report makes clear that the President equated a witness's decision to “flip” with being induced by
prosecutors to manufacture false evidence against others. We cannot say that the evidence would
prove beyond a reasonable doubt that the President's statements, most of which were made
publicly, were intended to induce any of those witnesses to conceal truthful evidence or to provide
false evidence. Once again, tis conclusion is buttressed by the absence of any clear evidence that
these witnesses had information that would prove the President had commited a crime. The
President's public statements could be viewed as efforts to defend himself from public criticism
related to the Special Counsel’s investigation or to discourage the witnesses from making what the
President believed might be false statements in exchange for a lesser sentence. Those statements
do not warrant a prosecution for obstruction of justice.

D. Other Considerations

Although we have not identified any actions that present clear violations of the obstruction
of justice statutes, there arc other factors that would weigh against pursuing the President's actions
as criminal violations. The Special Counsel thorough investigation did not establish that the +
President committed any underlying crime related to Russian interference. As noted, in every
successful obstruction case cited in the Report, the corrupt acts were undertaken to prevent the
investigation and prosecution of a separate crime. The existence of such an offense is not a
necessary clement to proving an obstruction charge, but the absence of underlying guilt is relevant
and powerful evidence in assessing whether otherwise innocent actions were undertaken with a
corrupt motive. In the absence of an underlying offense, the most compelling inference in
evaluating the President's conduct is that he reasonably believed that the Special Counsel's
investigation was interfering with his governing agenda. Even if the President were objectively
wrong about the intentions of the Special Counsel, many, if not all, of his actions could be viewed
as lacking the intent clement under the relevant statutes.

In addition, while our analysis would counsel against pursuing an obstruction charge
against an ordinary party in the absence of any effort to impair evidence, there are additional
prudential reasons that weigh against such an interpretation in these circumstances. Such a
criminal prosecution would involve the application of a novel obstruction theory that arguably
would apply to any official with the authority to take acts that could influence an investigation.
Such an extension would involve serious questions of public policy and constitutional law that
‘would weigh against pursuing criminal charges except under the clearest of cases.

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

APPROVE: Woon pate: _3/24[2019

DISAPPROVE: DATE:

OTHER: