The revelation on Wednesday comes after an appeals court panel determined Barr wrongly withheld key parts of the internal memo when he announced the findings of the Russia investigation.
Citizens for Responsibility and Ethics in Washington, a watchdog group that sued for the release of the full document in a Freedom of Information Act case, claimed victory after the ruling late last week. "We won! We're going to get the secret memo Barr used to undercut the Mueller Report and claim it was insufficient to find Trump obstructed justice. And we're going to make it public," the group tweeted.
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Justice Department officials had argued the document was redacted to protect internal discussions about making a decision about whether to prosecute, but the 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.
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"The court’s ... review of the memorandum revealed that the Department in fact never considered bringing a charge," the panel wrote in its opinion. "Instead, the memorandum concerned a separate decision that had gone entirely unmentioned by the government in its submissions to the court — what, if anything, to say to Congress and the public about the Mueller Report." The panel added: "We affirm the district court."
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An edited version of the memo was published last year. The legal and factual analysis sections, which remained under seal at the time, stretched most of the document, starting a little more than halfway down the second page.
As reported by journalist Jason Leopold, one key passage appears on the seventh page. "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," the passage says.
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Mueller, a former FBI director, was assigned special counsel in May 2017 after Trump fired FBI Director James Comey. The FBI's Crossfire Hurricane counterintelligence investigation, which was investigating links between Russia and Trump's 2016 campaign, was wrapped into that measure. Andrew McCabe, who became acting FBI director, said in 2019 he was the one who ordered an obstruction of justice inquiry into Trump after the dismissal of Comey to ensure the Russia investigation would not "vanish in the night without a trace."
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Before the release of Mueller's report in April 2019, Barr wrote a summary letter to Congress that said the special counsel did not find evidence to establish a criminal conspiracy and did not come to a determination about whether to charge Trump with obstruction of Justice. Barr said he and Deputy Attorney General Rod Rosenstein concluded that it was not adequate to demonstrate criminality on that front.
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