While the unredacted Mueller Report is still being heavily guarded under lock and key in Attorney General (for Donald Trump) Bill Barr’s office, hidden away even from members of Congress who have a Constitutional duty to act as oversight on the executive branch, hundreds of former federal prosecutors say the evidence in the redacted version of the report would’ve resulted in “multiple felony charges for obstruction of justice.”
In statement signed by at least 375 (and growing) Department of Justice alumni, people who worked as federal prosecutors across the country during both Republican and Democratic administrations over the last three decades, have said the obstruction of justice was extremely clear and would’ve been prosecuted if it weren’t for the Office of Legal Counsel policy not to indict sitting presidents.
From the statement:
Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.
The Mueller report describes several acts that satisfy all of the elements for an obstruction charge: conduct that obstructed or attempted to obstruct the truth-finding process, as to which the evidence of corrupt intent and connection to pending proceedings is overwhelming. These include:
· The President’s efforts to fire Mueller and to falsify evidence about that effort;
· The President’s efforts to limit the scope of Mueller’s investigation to exclude his conduct; and
· The President’s efforts to prevent witnesses from cooperating with investigators probing him and his campaign.
They noted Donald Trump’s attempt to “create false evidence” for the White House records.
Despite being advised by then-White House Counsel Don McGahn that he could face legal jeopardy for doing so, Trump directed McGahn on multiple occasions to fire Mueller or to gin up false conflicts of interest as a pretext for getting rid of the Special Counsel. When these acts began to come into public view, Trump made “repeated efforts to have McGahn deny the story” — going so far as to tell McGahn to write a letter “for our files” falsely denying that Trump had directed Mueller’s termination.
They went on to list the numerous ways Donald Trump tried to thwart the investigation and intimidate witnesses.
As far as Bill Barr’s statement that there wasn’t enough evidence to charge obstruction of justice, these prosecutors flatly disagreed.
We emphasize that these are not matters of close professional judgment. Of course, there are potential defenses or arguments that could be raised in response to an indictment of the nature we describe here. In our system, every accused person is presumed innocent and it is always the government’s burden to prove its case beyond a reasonable doubt. But, to look at these facts and say that a prosecutor could not probably sustain a conviction for obstruction of justice — the standard set out in Principles of Federal Prosecution — runs counter to logic and our experience.
That memo outlining a policy of not indicting sitting presidents is by no means law and by no means settled. Walter Dellinger at Lawfare blog discussed the matter in 2018.
The United States has addressed this question six times in both internal memos and briefs filed in litigation. And a review of these documents shows that it is far from clear what criminal prosecution steps are (or should be) precluded—and that there is no “longstanding policy” against indictment of the president. Consider the 1973 OLC memo stating that a sitting president should not be indicted. Far from being authoritative, it was essentially repudiated within months by the Justice Department in the United States’ filing in the Supreme Court in United States v. Nixon.
Likewise, the most recent opinion—an OLC memo written in 2000—includes brief statements that a sitting president should not be indicted even if all further proceedings are postponed. But far from being definitive, this is a matter that could be reconsidered by the department. Moreover, of course, OLC opinions are not binding on state prosecutors (though state charges could raise federalism questions as well). The complex history of criminal proceedings against presidents and vice presidents suggests that these issues are not foreclosed.
During the next administration, it may be time to revisit this DOJ policy. Until then, it seems Donald Trump, with the help of his personal attorney, Bill Barr, is indeed above the law.