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      Justice Dept. Fights to Keep Secret a Memo on Clearing Trump in Russia Inquiry

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      The move put the Biden administration in the position of defending the secrecy of a memo related to the disputed decision to clear President Donald J. Trump.WASHINGTON — The Biden administration has decided to fight a legal battle to keep secret most of a Trump-era Justice Department memo related to Attorney General William P. Barr’s much-disputed declaration in 2019 that cleared President Donald J. Trump of illegally obstructing justice in the Russia investigation.In a late-night filing on Monday, the Justice Department appealed part of a scathing district court ruling that ordered it to make public the entire memo. Two senior department officials wrote the document at the same time that they were helping Mr. Barr draft a letter to Congress claiming that the evidence in the report, which was still secret at the time, was insufficient to charge Mr. Trump with a crime.The still-redacted portion of the document examines nearly a dozen episodes presented as raising obstruction of justice concerns that were detailed in the report by the special counsel, Robert S. Mueller III, and has at least two sections, according to two people briefed on it.One laid out potential legal theories under which Mr. Trump could have been prosecuted, the people said. The other examined whether the evidence for any of the episodes constituted proof beyond a reasonable doubt. The memo is said to conclude that no charge was viable.The decision to keep hiding that analysis from public scrutiny puts the Biden administration in the politically awkward position of trying to cover up a record that would shed new light on an act by Mr. Barr that Democrats consider notorious. But it also enables the department to defend two institutional interests: its ability to keep internal legal analysis secret and the actions of career officials whom a judge accused of misleading the court.The Justice Department did release the first page and a half of the nine-page memo. While Mr. Mueller had declined to render a judgment about whether to prosecute Mr. Trump because the department’s policy was not to charge a sitting president, the memo said that Mr. Barr should offer his opinion of the evidence to shape public understanding of the report.“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,” wrote Steven A. Engel and Edward C. O’Callaghan, two senior Justice Department officials during the Trump administration.The department also consented to releasing additional portions of the ruling this month by Judge Amy Berman Jackson, in which she had labeled its previous filings to her about the memo as “disingenuous.” Portions of her ruling that discussed the first part of the memo had been redacted.The court on Tuesday unsealed a more fulsome version of the ruling. It revealed that Judge Jackson had also accused the department of having “deliberately obscured” material in the memo that contradicted the notion that Mr. Barr needed to offer a public opinion about the prosecutorial merit of the evidence amassed by Mr. Mueller. The exercise, she said, was instead “purely hypothetical” and fundamentally about “getting a jump on public relations.”Noting that she had discovered the existence of this first part of the memo only after she insisted on reading it for herself rather than relying on the department’s representations about it, Judge Jackson also wrote: “D.O.J. made a strategic decision to pretend as if the first portion of the memorandum was not there and to avoid acknowledging that what the writers were actually discussing was how to neutralize the impact of the report in the court of public opinion.”The new Justice Department filing apologized for — but also defended — its Barr-era assertions to the court about the memo. It said that department officials could have been clearer, but that they were nevertheless accurate on the central legal question: whether the nature of the memo was pre-decisional and deliberative and thus exempt from disclosure. Any missteps, it argued, did not warrant releasing the entire document.Mr. Barr’s claim that the evidence did not show that Mr. Trump had committed any chargeable crime of obstruction has been widely criticized as deeply misleading. Among other fallout, a government watchdog group, CREW, filed a Freedom of Information Act lawsuit in the United States District Court in Washington seeking disclosure materials about the matter, leading to the fight over the memo.The Mueller report itself — which Mr. Barr permitted to become public weeks after his letter to Congress created an impression that the fruits of the inquiry had cleared Mr. Trump of obstruction — detailed several actions by Mr. Trump that many legal specialists say were sufficient to ask a grand jury to indict him on charges of obstruction of justice.Those actions included Mr. Trump’s attempt to bully his White House counsel, Donald F. McGahn II, into putting out a statement or writing a memo that would falsely deny that the president had directed him to fire Mr. Mueller — effectively falsifying evidence that would have contradicted Mr. McGahn’s witness testimony about that event.Mr. McGahn, who refused to relay directions to remove Mr. Mueller and to later falsely deny that episode, according to the Mueller report, will privately testify next week before the House Judiciary Committee about such matters.Mr. Trump’s actions also included dangling a potential pardon to his former campaign chairman, Paul Manafort, to encourage him not to cooperate with investigators.Mr. Trump later pardoned Mr. Manafort, who had refused to cooperate with Mr. Mueller about certain key matters.Testifying before the Senate Judiciary Committee in May 2019, Mr. Barr offered some explanations for why he did not think charges were merited for a few of the 10 episodes that the Mueller report had recounted as raising obstruction concerns. One of the people said that testimony drew upon and dovetailed with the still-hidden portions of the memo.“We took each of the 10 episodes, and we assessed them against the analytical framework that had been set forth by the special counsel,” Mr. Barr said at the time. “And we concluded that the evidence developed during the special counsel’s investigation was not sufficient to establish that the president committed an obstruction of justice offense.”For example, several episodes centered on Mr. Trump’s use, or attempted use, of his power to remove subordinate officials in the executive branch. They included his firing in 2017 of the F.BI. director James B. Comey Jr. — the act that led to Mr. Mueller’s appointment — and his unsuccessful efforts to persuade subordinates to have Mr. Mueller fired.Mr. Barr testified that “as a matter of law,” the obstruction statutes enacted by Congress did not limit the president’s power to remove a special counsel.That view, which is contested, comports with his own sweeping theory of presidential power. Still, in the deliberations, department officials also focused on the lack of historical precedent for prosecuting a current or former president for firing a subordinate, the two people said.In his testimony, Mr. Barr also maintained that the evidence was insufficient to prove that Mr. Trump had deliberately sought to criminally obstruct the investigation, apart from legal theories.For example, Mr. Barr said, a major reason that Mr. Trump fired Mr. Comey was his “refusal to tell the public what he was privately telling the president, which was that the president was not under investigation.” Mr. Trump’s rationale for trying to fire Mr. Mueller was a purported conflict of interest, and had Mr. Trump succeeded, Mr. Barr said, a replacement would “presumably” have been appointed.But the Trump Justice Department never made public its comprehensive analysis of all the episodes the Mueller report laid out. That is the analysis the Biden administration is seeking to keep secret.Judge Jackson had given the department until Monday night to respond to her order to disclose the memo — and, by extension, her finding that officials had been “disingenuous to this court” about its nature in court filings by arguing that it could be lawfully kept secret.In addition to officials omitting the existence of the first part of the memo in descriptions of it that were submitted to her, Judge Jackson also blasted the characterization of the document as pre-decisional. Mr. Barr, she wrote, had already decided not to initiate any prosecution of Mr. Trump when the memo was written, and it was instead about strategy and arguments that could be mustered to support that decision.In its filing, the Biden Justice Department said that the previous filings “could have been clearer, and it deeply regrets the confusion that caused.” But it also insisted that the department’s “declarations and briefs were accurate and submitted in good faith.”The department also put forward a narrow view of the problems with its previous statements about the memo, focusing on imprecision about whether Mr. Barr had been considering whether to commence a prosecution of Mr. Trump at that moment — as it had suggested in some places — or whether he was opining on whether Mr. Trump could be charged after he left office.Although Mr. Engel and Mr. O’Callaghan completed the memo after Mr. Barr had decided to say the evidence would not support obstruction charges, the department argued that the legal analysis portion of the memo memorialized advice they had provided before Mr. Barr made that decision.“The government acknowledges that its briefs could have been clearer, and it deeply regrets the confusion that caused,” the Biden Justice Department’s filing said. “But the government’s counsel and declarants did not intend to mislead the court, and the government respectfully submits” that any missteps still did not warrant releasing the entire memo.Katie Benner More

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      Justice Dept. Aims to Keep Secret Part of Barr-Era Memo on Trump

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      The Biden administration has decided to fight to keep secret most of a Trump-era Justice Department memo related to former Attorney General William P. Barr’s much-disputed declaration in 2019 clearing President Donald J. Trump of illegally obstructing justice in the Russia investigation.In a late-night filing Monday, the Justice Department appealed part of a district-court ruling that ordered it to make public the entire memo. It was written at the same time that Mr. Barr sent a letter to Congress claiming the evidence in the then-still secret report by the special counsel, Robert S. Mueller III, was insufficient to charge Mr. Trump with a crime.The Justice Department did release the first page and a half of the nine-page memo. While Mr. Mueller had declined to render a judgment about what the evidence added up to because the department’s policy was not to charge a sitting president, the memo said Mr. Barr was justified in making a decision in order to shape public understanding of the report. “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,” wrote Steven A. Engel and Edward C. O’Callaghan, two senior Trump-era Justice Department officials.The Mueller report itself — which Mr. Barr permitted to become public weeks after his letter to Congress had created an impression that the fruits of Mr. Mueller’s inquiry cleared Mr. Trump of obstruction — detailed multiple actions by Mr. Trump that many legal specialists say were clearly sufficient to ask a grand jury to consider indicting him for obstruction of justice.Those actions included attempting to bully his White House counsel, Donald F. McGahn II, into falsifying a record to cover up an earlier attempt by Mr. Trump to fire Mr. Mueller, and dangling a potential pardon at Mr. Trump’s former campaign chairman, Paul Manafort, to encourage him not to cooperate with investigators.The new Justice Department filing also apologized for and defended its Barr-era court filings about the memo, which Judge Amy Berman Jackson had labeled “disingenuous,” saying that they could have been written more clearly but were nevertheless accurate.“The government acknowledges that its briefs could have been clearer, and it deeply regrets the confusion that caused,” the Justice Department said. “But the government’s counsel and declarants did not intend to mislead the court, and the government respectfully submits” that any missteps still did not warrant releasing the entire memo.Mr. Barr’s claim — which he made weeks before releasing the Mueller public — that the evidence gathered showed that Mr. Trump did not commit a chargeable offense of obstruction has been widely criticized as deeply misleading.Among other fallout, a government watchdog group, CREW, filed a Freedom of Information Act lawsuit in the United States District Court in Washington seeking disclosure of an internal memo about the matter.Earlier this month, Judge Jackson issued a scathing ruling in that case saying that the Barr-era Justice Department had been “disingenuous to this court” about the nature of the memo in court filings by arguing that it could be lawfully kept secret under an exemption for pre-decisional deliberations. She wrote that she had made the discovery after insisting that she read it herself.While the Barr-era Justice Department told her the memo concerned deliberations about whether Mr. Trump should be charged with obstruction, the memo itself showed that Mr. Barr had already decided not to do so, and the memo was instead about strategy and arguments that could be mustered to quash the idea. She ordered the entire document released.The Biden-era Justice Department had until Monday to respond. In its filing, it acknowledged that its earlier filings “could have been clearer, and it deeply regrets the confusion that caused.” But it also insisted that its “declarations and briefs were accurate and submitted in good faith.”The decision that Mr. Barr was actually making, the department said, was about whether to decide whether the evidence was sufficient to charge Mr. Trump someday — not whether he should be charged at that moment, since longstanding department legal policy is to consider sitting presidents temporarily immune from prosecution while they are in office.And, it said, the legal analysis in the second part of the memo — the portion it is appealing to keep secret — was, in fact, pre-decisional, even though the memo was completed after Mr. Barr made his decision, because it memorialized legal advice that department lawyers had previously provided to the attorney general. More

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      McGahn Likely to Testify on Trump's Efforts to Obstruct Russia Inquiry

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      A delay is said to have stemmed from an initial threat by former President Donald J. Trump to intervene, but he apparently reversed course.WASHINGTON — President Donald J. Trump’s former White House counsel, Donald F. McGahn II, has agreed to testify behind closed doors before the House Judiciary Committee sometime next week about Mr. Trump’s efforts to obstruct the Russia investigation, according to two people familiar with the matter.Lawyers for House Democrats, the Justice Department and Mr. McGahn had tentatively struck a deal to provide the testimony earlier in May. But the scheduling was delayed for weeks while they waited to see what Mr. Trump, who was not a party to the agreement, would do.Mr. McGahn’s agreement to testify — with President Biden’s permission — was contingent upon there being no active legal challenge to his participation in the matter, according to the two people, who spoke on the condition of anonymity because of the legal and political sensitivity of the matter.Immediately after the deal was announced this month in a court filing, a lawyer for Mr. Trump had conveyed that the former president intended to intervene. Former presidents can invoke executive privilege, although courts weigh that against the view of the incumbent president, and Mr. Trump could have sought a court order blocking Mr. McGahn’s testimony.But late last week, the people said, the lawyer for Mr. Trump — Patrick Philbin, a former deputy White House counsel in the Trump administration who is continuing to help handle his post-presidential legal affairs — said that Mr. Trump would not be intervening after all.Mr. Philbin, who did not respond to a request for comment, is said to have provided no reason for the about-face.While he was president, Mr. Trump vowed to stonewall “all” congressional subpoenas, and taxpayer-funded lawyers with the Justice Department fought lengthy court battles and appeals that succeeded in running out the clock on the possibility that House Democrats would obtain the information they were seeking before the 2020 election.Now that Mr. Trump is no longer president, however, there is at least one major difference: To keep litigating over the matter, Mr. Trump would have to pay the legal costs himself.The McGahn case stems from the House Judiciary Committee’s desire in 2019 to question him about matters related to his role as a key witness in the report by the special counsel, Robert S. Mueller III, about efforts by Mr. Trump to impede the Russia investigation.But after the panel subpoenaed Mr. McGahn to testify, he refused to appear, on Mr. Trump’s instructions. The committee sued, and the case went through several rounds of legal fights over various constitutional issues that lacked definitive precedents because previous such disputes had generally been resolved with a negotiated compromise.Currently, the case is pending before the Court of Appeals for the full District of Columbia Circuit on the question of whether Congress has a “cause of action” that permits it to sue the executive branch. Under presidents of both parties, the executive branch has argued that Congress does not, and the Biden Justice Department had signaled that it was prepared to keep arguing that position if no accommodation could be reached.The deal averts the uncertain outcome of further such litigation — but also means that the next time a fight emerges over a subpoena from the House to the executive branch, the Justice Department will be able to start fresh in prolonged litigation over that unresolved issue.Under the deal, according to a court filing, there will be strict limits on the testimony Mr. McGahn will provide. He will testify behind closed doors for a transcribed interview, rather than in public.Only lawmakers on the House Judiciary Committee may attend. And they may ask Mr. McGahn only about information attributed to him, or events involving him, in the publicly available portions of the Mueller report.The deal also says that the parties will get up to seven days to review the transcript for accuracy before it is made public, suggesting that it would be disclosed sometime in the second week of June. More

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      Giuliani Seeks to Block Review of Evidence From His Phones

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      Prosecutors investigating Rudolph W. Giuliani’s work in Ukraine have seized his electronic devices, a move his lawyers are now questioning.Rudolph W. Giuliani on Monday opened a broad attack on the searches that federal investigators conducted of his home, his office and his iCloud account, asking a judge to block any review of the seized records while his lawyers determine whether there was a legitimate basis for the warrants, according a court filing made public on Monday.Mr. Giuliani’s lawyers are seeking copies of the confidential government documents that detail the basis for the search warrants, a legal long shot that they hope could open the door for them to argue for the evidence to be suppressed. Typically, prosecutors only disclose such records after someone is indicted and before a trial, but Mr. Giuliani, who is under investigation for potential lobbying violations, has not been accused of wrongdoing.A spokesman for the U.S. attorney’s office declined to comment on Monday.In a 17-page letter to the judge who authorized the searches, Mr. Giuliani’s lawyers argued that it would have been more appropriate — and less invasive — for the U.S. attorney’s office in Manhattan to seek information through a subpoena, which, unlike a warrant, would have given him an opportunity to review the documents and respond.Justice Department policy recommends that prosecutors use subpoenas when seeking information from lawyers, unless there is a concern about destruction of evidence.The defense lawyers wrote that prosecutors “simply chose to treat a distinguished lawyer as if he was the head of a drug cartel or a terrorist, in order to create maximum prejudicial coverage of both Giuliani and his most well-known client — the former president of the United States.”The lawyers also disclosed that the government had claimed in a November 2019 search warrant for Mr. Giuliani’s iCloud account that the search needed to be a secret because of concerns he might destroy records or intimidate witnesses.Though the government routinely cites concern about potential destruction of records when seeking search warrants, Mr. Giuliani’s lawyers attacked the idea that their client, himself a former federal prosecutor and onetime personal lawyer to President Donald J. Trump, would ever destroy evidence.“Such an allegation, on its face, strains credulity,” the lawyers, including Robert J. Costello and Arthur Aidala, wrote. “It is not only false, but extremely damaging to Giuliani’s reputation. It is not supported by any credible facts and is contradicted by Giuliani’s efforts to provide information to the government.”The judge who approved the warrants, J. Paul Oetken of Federal District Court, will ultimately decide whether Mr. Giuliani will have access to the confidential government materials underlying them.Mr. Giuliani’s court filing came in response to the government’s request that Judge Oetken appoint a so-called special master to review cellphones and computers seized in the search of Mr. Giuliani’s home and office in Manhattan on April 28.The special master — usually a retired judge or magistrate — would determine whether the materials contained in the devices are covered by attorney-client privilege and as a result cannot be used as evidence in the case. He or she would filter out privileged communications not only between Mr. Giuliani and Mr. Trump, but also between Mr. Giuliani and his other clients.Mr. Giuliani’s lawyers called the appointment of a special master “premature,” because they are first seeking copies of the search warrant materials.The authorities want to examine the electronic devices for communications that might reveal whether Mr. Giuliani violated lobbying laws in his dealings in Ukraine, The New York Times has reported.While serving as Mr. Trump’s personal lawyer before the 2020 presidential election, Mr. Giuliani sought to uncover damaging information on President Biden, then a leading Democratic contender.At issue is whether Mr. Giuliani was at the same time lobbying the Trump administration on behalf of Ukrainian officials who were assisting him in the search.It is a violation of federal law to lobby the U.S. government on behalf of foreign officials without registering with the Justice Department. Mr. Giuliani never registered as a lobbyist for the Ukrainians. He has maintained that he was working only for Mr. Trump.One day after the search, the U.S. attorney’s office told Judge Oetken in a letter that the F.B.I. had begun to extract materials from the seized devices but had not yet begun reviewing them.In the letter, the prosecutors said the appointment of a special master might be appropriate because of “the unusually sensitive privilege issues” raised by the searches, citing, for example, Mr. Giuliani’s representation of Mr. Trump.Communications between lawyers and their clients are generally shielded from investigators in the United States, and communications between presidents and their aides enjoy a similar protection, known as executive privilege.“Any search may implicate not only the attorney-client privilege but the executive privilege,” the office of Audrey Strauss, the U.S. attorney in Manhattan, wrote.In seeking the appointment of a special master to review Mr. Giuliani’s materials, the prosecutors cited their office’s investigation of Michael D. Cohen, another of Mr. Trump’s former lawyers.In that case, federal agents seized documents and electronic devices in an April 2018 search of Mr. Cohen’s office, apartment and hotel room. A judge appointed Barbara S. Jones, a retired judge, to determine whether those materials were off-limits to investigators because of attorney-client privilege.Ms. Jones ultimately concluded that only a fraction of Mr. Cohen’s materials were privileged and that the rest could be provided to the government. That August, Mr. Cohen pleaded guilty to campaign finance violations and other crimes. More

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      Pentagon Chief Feared ‘Coup’ Accusations if He Deployed Troops to Capitol Riot

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      Christopher C. Miller, the acting defense secretary on Jan. 6, plans to defend the Pentagon’s actions before and during the violence when he testifies before a House panel on Wednesday.WASHINGTON — Christopher C. Miller, who was the acting defense secretary when rioters attacked the Capitol on Jan. 6, plans to testify before Congress on Wednesday that he worried that sending troops to the complex would contribute to perceptions of a “military coup” under President Donald J. Trump.He will also blame Mr. Trump for encouraging the violent mob that overran the Capitol Police, according to written testimony submitted to the House Committee on Oversight and Reform.Mr. Miller’s comments, part of the lengthy defense of the Pentagon’s actions before and during the mob violence, are the first he will make in sworn testimony as various committees investigate the largest attack on the Capitol since the War of 1812. He is set to testify during an hourslong hearing before the committee at 10 a.m.“I personally believe his comments encouraged the protesters that day,” Mr. Miller plans to say about Mr. Trump.Fear of the appearance of a coup was not an explanation given by the Pentagon in the days after the riot. At the time, Defense Department officials said they largely held back because they were not asked to send troops. District of Columbia officials, the former chief of the Capitol Police and Maryland’s Republican governor have all said they called for the National Guard to be deployed for hours on Jan. 6 before the Pentagon gave approval.During the hearing, Democrats plan to press Mr. Miller and former Acting Attorney General Jeffrey A. Rosen on what they believe is a “stark contrast” between how aggressively the Justice and Defense Departments responded to Black Lives Matter protests over the summer and the pro-Trump mob attack on the Capitol, according to a committee aide. Democrats also plan to ask whether the Justice Department had a “blind spot to right-wing extremism” that prevented it from anticipating the potential for violence, the aide said.“There is no question that former President Trump’s inflammatory language provoked and incited the violent mob that stormed the United States Capitol in a last-ditch effort to overturn the lawful results of the 2020 presidential election,” said Representative Carolyn B. Maloney of New York, the committee’s chairwoman. “Yet more than four months later, Congress and the American people still have many unanswered questions about why the Trump administration did not do more in response to open threats of violence espoused by violent right-wing extremists before the attack, and why federal agencies were so slow to respond once the attack began.”Mr. Rosen will reaffirm the Justice Department’s determination that it had seen “no evidence of widespread voter fraud at a scale sufficient to change the outcome of the 2020 election,” according to his submitted testimony.He also plans to testify that the department played a secondary role in security preparations for Congress’s Jan. 6 certification of the election results and the expected protests.“Based on the updates I received, I was confident that very substantial efforts were undertaken by D.O.J. personnel in advance of Jan. 6 to understand and prepare for the potential threats, and share that information with law enforcement partners,” Mr. Rosen is expected to say.Mr. Miller plans to testify that Mr. Trump did not block the National Guard from being deployed. According to his testimony, a day before the riot, the president requested 10,000 troops to be present.“The call lasted fewer than 30 seconds, and I did not respond substantively, and there was no elaboration. I took his comment to mean that a large force would be required to maintain order the following day,” Mr. Miller wrote.Defense Department officials have come under criticism since the attack, particularly from the commander of the D.C. National Guard, who testified before Congress in March that the Pentagon had placed “unusual” restrictions on his troops before the Capitol riot. The commander, Maj. Gen. William J. Walker, who has since become the House sergeant-at-arms, said the military leaders’ fears of a repeat of aggressive tactics used during racial justice protests last year slowed decision-making and squandered time as the violence escalated.He has also said he did not receive approval to mobilize troops until more than three hours after he had requested it.But Mr. Miller is expected to defend his actions, arguing that he informed General Walker hours earlier that he could deploy the guard. He also plans to say he believed a military deployment would send the wrong message to the protesters.“My concerns regarding the appropriate and limited use of the military in domestic matters were heightened by commentary in the media about the possibility of a military coup or that advisers to the president were advocating the declaration of martial law,” Mr. Miller wrote. “I was also concerned that those seeking to obstruct the Electoral College certification or otherwise disrupt our government could provoke a soldier to act in a way that could be portrayed in the media as an attack against demonstrators exercising their First Amendment rights of assembly and speech.”Capitol security officials have blamed communication breakdowns and overlapping jurisdictions for creating utter confusion that hindered attempts to stop the assault. Mr. Miller plans to testify that those breakdowns were evident in the days before the riot.“A principal concern for the Department of Defense was the apparent lack of coordination, synchronization and information exchange with and between the numerous domestic law enforcement organizations having primary jurisdiction and responsibility over such matters in the District,” he wrote. “I felt it was my responsibility to initiate these discussions given my sense that these efforts and coordination were not tightly wired at that point.”Even so, he plans to say that he stands behind the decisions he made on Jan. 6.“I know that many fine men and women serving on the front lines on Jan. 6, 2021, with domestic law enforcement agencies did their best to protect the Capitol and the individuals who were in harm’s way from a lawless and ignorant mob acting contrary to nearly two and a half centuries of peaceful and respectful transfers of power under our Constitution,” he wrote. More

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      Prosecuting Nazi War Criminals

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      More from our inbox:A Resource for New York City VotersTruth, Race and Reconciliation  Illustration by The New York Times; photographs from the Gerson FamilyTo the Editor:Re “Immigration Lies, Past and Present” (Opinion guest essay, April 27):Daniela Gerson, in her tribute to her father, presents a misleading picture of the Office of Special Investigations in the U.S. Department of Justice, where her father served in 1980 and 1981. I was the director of that office, and Allan Gerson was a lawyer on my staff.To say that O.S.I. “did not prosecute Nazis based on their wartime crimes, but rather because they had lied on immigration forms” misunderstands the cases we presented. We proved those lies as a necessary predicate to proving the crimes themselves, to show that their entry was unlawful.The trials, and the judgments against them that followed, depended entirely on the compelling proof of their criminal actions. We had neither the purpose nor the desire to concern ourselves with those who, like Mr. Gerson’s parents, had merely lied on immigration forms, and certainly not those who, like them, were survivors of Nazi crimes.As federal prosecutors (we eschewed the characterization of “Nazi hunters”), our mandate from Congress and the attorney general was to present cases against Nazi criminals to secure the loss of their citizenship and their eventual deportation. Anyone who sat in the courtroom would have witnessed the prosecution of those criminals in full and fair trials, their complicity conclusively proved by the Nazis’ own documentation and the testimony of those who survived their crimes. That includes the federal judges who rendered the decisions of denaturalization and deportation.As Ms. Gerson states, her father left O.S.I. after 18 months, but at no time did he ever suggest to me any discontent with our “tactics,” our investigations and lawsuits, or the legal basis on which they securely rested.In April, the United States Holocaust Memorial Museum awarded the Office of Special Investigations its highest honor, the Elie Wiesel Award. Howard M. Lorber, the museum’s chairman, said:“While true justice for the victims of the Holocaust is not possible, [Ambassador] Stuart Eizenstat and the U.S. Department of Justice’s Office of Special Investigations have each worked tirelessly in different ways to secure a measure of justice for the survivors and accountability for the perpetrators. We are honored to recognize their achievements and decades-long dedication to these noble pursuits.”That honor was not conferred on O.S.I. for the prosecution of lies on immigration forms.Allan A. RyanNorwell, Mass.The writer was director of the Office of Special Investigations at the Justice Department from 1980 to 1983 and is the author of “Quiet Neighbors: Prosecuting Nazi War Criminals in America.”A Resource for New York City VotersTo the Editor:Re “New York’s Electing a Mayor. New Yorkers Yawn” (front page, April 27):The last year has put a tremendous strain on millions who have lost a loved one, become extremely ill or faced financial hardship. Given the circumstances, it’s understandable that many New Yorkers are oblivious to the citywide primary elections on June 22.In addition to these circumstances, there are more than 400 candidates running for various offices in the city, and ranked-choice voting will be used for the first time.The people who win the primaries in less than seven weeks will most likely be the ones to shape our city for a generation to come. We need as many New Yorkers engaged in this election as possible to ensure that our city’s recovery benefits us all.If people feel overwhelmed by the prospect of educating themselves about who is running, that can’t be allowed to happen. That’s why we started ElectNYC.org, a comprehensive, nonpartisan guide to the 2021 elections, so voters can feel empowered to make the best choices for themselves and their communities.New Yorkers need a place where they can easily get unbiased information about who is running, where they stand on important issues and how to cast a ballot. We encourage everyone to use this valuable resource ahead of the June primary.Betsy GotbaumNew YorkThe writer is executive director of Citizens Union and a former New York City public advocate.Truth, Race and ReconciliationWilliam Sylvester White Jr., who was appointed to the rank of Ensign in the U.S. Naval Reserve during World War II, Chicago, 1940.Illustration by Alexandria Valentine; photograph by Afro American Newspapers/Gado/Getty ImagesTo the Editor:Re “Black Troops Deserve Better” (Opinion guest essay, April 22):Theodore R. Johnson helps us all understand how systemic racism has corrupted our country. Now we need a truth and reconciliation commission to put these cases into their context.We will never reach a fair and equitable society until these issues are brought into the light of day. Denying that our country has been systemically racist and that this affects our world today is a falsehood.If we review the truth, maybe politicians will then take reparations arguments seriously.Daniel DziedzicRochester Hills, Mich. More

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      Judge Says Barr Misled on How His Justice Dept. Viewed Trump’s Actions

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      Judge Amy Berman Jackson said in a ruling that the misleading statements were similar to others that William P. Barr, the former attorney general, had made about the Mueller investigation.A federal judge in Washington accused the Justice Department under Attorney General William P. Barr of misleading her and Congress about advice he had received from top department officials on whether President Donald J. Trump should have been charged with obstructing the Russia investigation and ordered that a related memo be released.Judge Amy Berman Jackson of the United States District Court in Washington said in a ruling late Monday that the Justice Department’s obfuscation appeared to be part of a pattern in which top officials like Mr. Barr were untruthful to Congress and the public about the investigation.The department had argued that the memo was exempt from public records laws because it consisted of private advice from lawyers whom Mr. Barr had relied on to make the call on prosecuting Mr. Trump. But Judge Jackson, who was appointed by President Barack Obama in 2011, ruled that the memo contained strategic advice, and that Mr. Barr and his aides already understood what his decision would be.“The fact that he would not be prosecuted was a given,” Judge Jackson wrote of Mr. Trump.She also singled out Mr. Barr for how he had spun the investigation’s findings in a letter summarizing the 448-page report before it was released, which allowed Mr. Trump to claim he had been exonerated.“The attorney general’s characterization of what he’d hardly had time to skim, much less study closely, prompted an immediate reaction, as politicians and pundits took to their microphones and Twitter feeds to decry what they feared was an attempt to hide the ball,” Judge Jackson wrote.Her rebuke shed new light on Mr. Barr’s decision not to prosecute Mr. Trump. She also wrote that although the department portrayed the advice memo as a legal document protected by attorney-client privilege, it was done in concert with Mr. Barr’s publicly released summary, “written by the very same people at the very same time.”A spokeswoman for Mr. Barr did not return an email seeking comment. A Justice Department spokesman declined to comment.Judge Jackson said that the government had until May 17 to decide whether it planned to appeal her ruling, a decision that will be made by a Justice Department run by Biden appointees.The ruling came in a lawsuit by a government watchdog group, Citizens for Responsibility and Ethics in Washington, asking that the Justice Department be ordered to turn over a range of documents related to how top law enforcement officials cleared Mr. Trump of wrongdoing.At issue is how Mr. Barr handled the end of the Mueller investigation and the release of its findings to the public. In March 2019, the office of the special counsel overseeing the inquiry, Robert S. Mueller III, delivered its report to the Justice Department. In a highly unusual decision, Mr. Mueller declined to make a determination about whether Mr. Trump had illegally obstructed justice.That opened the door for Mr. Barr to take control of the investigation. Two days after receiving the report, Mr. Barr sent a four-page letter to Congress saying that Mr. Trump would not be charged with obstructing justice and summarizing the report. Mr. Mueller’s team believed that Mr. Barr’s characterization of the document was misleading and privately urged him to release more of their findings, but Mr. Barr refused.About a month later, around the time that the report was released to the public, Mr. Barr testified to Congress that he had made the decision not to charge Mr. Trump “in consultation with the Office of Legal Counsel and other department lawyers,” and that the decision to clear the president of wrongdoing had been left to Mr. Barr because Mr. Mueller had made no determination about whether Mr. Trump broke the law.Judge Jackson said in the ruling that Mr. Barr had been disingenuous in those assertions, adding that it had not been left to him to make the decision about the prosecution.She also said that in the litigation between the government and Citizens for Responsibility and Ethics in Washington, the Justice Department under Mr. Barr had claimed that the memo, written by his top officials, had been about legal advice he had relied on to make the decision and should be shielded from the public.Under federal law, the Justice Department can claim that such advice should be shielded because it is “deliberative” and the possibility of releasing it could keep advisers from giving their unvarnished counsel because they fear it may become public someday.But instead, Judge Jackson wrote, Mr. Barr and his aides had already decided not to bring charges against Mr. Trump. She reprimanded the department for portraying the memo as part of deliberations over whether to prosecute the president. She noted that she had been allowed to read the full memo before making her decision, over the objections of the Justice Department, and that it revealed that “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 department “has been disingenuous to this court with respect to the existence of a decision-making process that should be shielded by the deliberative process privilege,” Judge Jackson wrote.She oversaw the trial of Mr. Trump’s longtime adviser Roger J. Stone Jr. and one of the cases against Mr. Trump’s onetime campaign chairman Paul Manafort. Although Mr. Trump has publicly attacked Judge Jackson, legal experts say she operated as an unbiased arbiter during the Russia investigation.In late March, the judge similarly called into question the credibility of the Trump-era government’s description of documents in a Freedom of Information Act lawsuit brought by The New York Times for certain White House budget office emails related to Mr. Trump’s freeze on military aid to Ukraine, which led to his first impeachment.The Justice Department argued that the emails were exempt from disclosure and filed sworn affidavits about their contents by lawyers for the Office of Management and Budget during the Trump administration. But Judge Jackson insisted on reading the emails for herself and wrote that “the court discovered that there were obvious differences between the affiants’ description of the nature and subject matter of the documents, and the documents themselves.”Charlie Savage More

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      Subpoenaing the Brookings Institution, Durham Focuses on Trump-Russia Dossier

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      The special counsel scrutinizing the Russia inquiry, a Trump-era leftover, appears to be retreading ground that an inspector general explored in 2019.WASHINGTON — Exiled from Twitter, former President Donald J. Trump issued a sarcastic statement recently inquiring about the ongoing public silence from John H. Durham, the special counsel who has been investigating the Trump-Russia inquiry since May 2019.“Where’s Durham?” said Mr. Trump, who repeatedly predicted before last year’s election that Mr. Durham’s investigation would prove a deep-state conspiracy against him. “Is he a living, breathing human being? Will there ever be a Durham report?”Mr. Durham ignored the complaint publicly, and the scope of his inquiry remains opaque. But one aspect has come into focus recently, according to people familiar with the investigation: Mr. Durham has keyed in on the F.B.I.’s handling of a notorious dossier of political opposition research both before and after the bureau started using it to obtain court permission to wiretap a former Trump campaign adviser in 2016 and 2017 and questioned witnesses who may have insight into the matter.In particular, Mr. Durham has obtained documents from the Brookings Institution related to Igor Danchenko, a Russia researcher who worked there a decade ago and later helped gather rumors about Mr. Trump and Russia for that research, known as the Steele dossier, according to people familiar with the request.By asking about the dossier, Mr. Durham has come to focus at least in part on re-scrutinizing an aspect of the investigation that was already exposed as problematic by a 2019 Justice Department inspector general report and led to reforms by the F.B.I. and the Foreign Intelligence Surveillance Court.A spokesman for Mr. Durham declined to comment.Asked whether the special counsel had briefed his new supervisor — Attorney General Merrick B. Garland — a Justice Department spokesman would only point to a statement by Mr. Garland as a nominee. “If confirmed,” he said, “one of the first things I am going to do is speak with Mr. Durham and learn the status of his investigation.”In February, several weeks before the Senate confirmed Mr. Garland, Mr. Durham obtained old personnel files and other documents related to Mr. Danchenko from the Brookings Institution, a prominent Washington think tank, using a subpoena. Mr. Danchenko had worked there from 2005 until 2010.Mr. Danchenko traveled to Russia in 2016 and gathered rumors about Mr. Trump and his associates on behalf of Christopher Steele, who produced the dossier as a subcontractor for an investigative firm being indirectly paid by Democrats to look into any Trump-Russia ties.Michael Cavadel, the general counsel of Brookings, confirmed the subpoena for records and other materials about Mr. Danchenko, saying that it was received on Dec. 31 and that the think tank had taken until February to gather the files and turn them over to Mr. Durham’s team in part because its office is closed during the pandemic.“Consistent with its practices in such matters, Brookings provided the responsive documents, none of which contained information associated with the reports known as the Steele dossier,” Mr. Cavadel said.Last September, the attorney general at the time, William P. Barr, made public that from 2009 to 2011 Mr. Danchenko had been the subject of an F.B.I. counterintelligence investigation assessing his contacts with several suspected Russian intelligence officials, including at the Russian Embassy.(Skeptics of the Steele dossier have raised the prospect that Russian intelligence may have used Mr. Danchenko or his sources to seed it with disinformation, in order to further sow chaos. Mr. Danchenko was never charged and has denied ever being a Russian agent. He has also noted that during his time at Brookings he put forward analysis embarrassing to President Vladimir V. Putin of Russia: evidence that Mr. Putin plagiarized parts of his dissertation.)Igor Danchenko worked for the Brookings Institution from 2005 to 2010.Jonah M. Kessel/The New York TimesMr. Durham has also asked questions that suggested a focus on skepticism about how the F.B.I. approached issues that might have undermined the dossier’s credibility as a basis for wiretap applications, people familiar with the inquiry said.For example, Mr. Durham’s team is said to have asked why the F.B.I., after identifying Mr. Danchenko as a major source for the dossier and interviewing him in early 2017, did not tell the surveillance court that he had once been the subject of a counterintelligence investigation.Mr. Durham is also said to be interested in a meeting between the F.B.I. and Mr. Steele in Rome in early October 2016, shortly before the bureau submitted the first wiretap application that used information from his dossier.The previous month, Yahoo News had published an article that contained information that overlapped with claims in the dossier, and the F.B.I. later learned that Mr. Steele had been a source for it, prompting the bureau to sever its relationship with him. At the time, as the bureau told the court in its wiretap application, it assumed the source had been someone else who had received a copy of the dossier.Mr. Durham is said to have asked why F.B.I. officials at that October meeting apparently did not ask Mr. Steele whether he was the article’s source — before using his information to apply for permission to wiretap the former Trump adviser, Carter Page.The focus raised the possibility that Mr. Durham has been exploring whether F.B.I. officials knowingly misled the surveillance court. But if Mr. Durham has found credible evidence of such a crime — as opposed to sloppy investigative work — he has yet to file any such charges.Mr. Durham interviewed the former C.I.A. director John O. Brennan in August, but told him he was not the target of any criminal inquiry. But he has yet to interview former F.B.I. officials who held senior roles in 2016 and have been demonized by Trump supporters, including the former director James B. Comey; his former deputy Andrew G. McCabe; and a former senior counterintelligence agent, Peter Strzok, according to people familiar with the matter.To the extent any eventual Durham report focuses on criticizing the F.B.I.’s handling of issues related to the Steele dossier, it would risk largely retreading ground already covered by the 2019 report by the Justice Department’s inspector general, Michael E. Horowitz.Mr. Horowitz has already brought to light the fact that the F.B.I. botched its wiretap applications in numerous ways, including uncovering numerous material facts that law enforcement officials failed to tell the court and that might have undermined their case for receiving wiretap authorization or renewals — including about the dossier.Mr. Horowitz’s report also already unearthed the fact that Mr. Danchenko had been the subject of a counterintelligence investigation when he worked at Brookings, in a footnote that was initially classified before Mr. Barr decided to make it public.The report also already focused criticism on the F.B.I.’s failure to ask Mr. Steele in October 2016 whether he played a role in the Yahoo News article.And the misconduct by the only person Mr. Durham has charged to date — Kevin Clinesmith, a former F.B.I. lawyer who altered an email shown to a colleague during preparations to seek a renewal of the wiretap, preventing another problem from coming to light internally — was uncovered by Mr. Horowitz’s investigation. (Mr. Clinesmith, who pleaded guilty to falsifying the email but insisted that he did not deliberately mislead his colleague, was sentenced to probation.)Mr. Barr assigned Mr. Durham to hunt for any potential wrongdoing by the Trump-Russia investigators in spring 2019, at a time when Mr. Trump and his supporters were pushing the notion that the inquiry had been a “deep state” plot against him. While Mr. Durham’s work has been opaque, accounts by people familiar with his investigation have made clear that he has pursued various Trumpian conspiracy theories and grievances.In seeking to discredit the Russia investigation, Mr. Trump and his allies have frequently conflated it with the flawed Steele dossier. In fact, the Page wiretaps were a minor part of the overall effort, and Mr. Horowitz’s report showed that it played no role in the F.B.I. decision to open the counterintelligence investigation in July 2016.While uncovering numerous ways the F.B.I. had botched those wiretap applications, Mr. Horowitz’s report also concluded that it had lawfully opened the overall investigation on an adequate basis. When the inspector general delivered the report, Mr. Durham intervened with an unusual public statement saying he disagreed with Mr. Horowitz that the investigation’s opening was properly predicated.Mr. Durham provided no details, but Mr. Horowitz later told Congress that Mr. Durham had told him he thought that the F.B.I. should have opened the inquiry as a “preliminary” investigation rather than going straight to a “full” one. More