Why we’re weighing in on Trump obstruction
Mueller wasn’t clear, so we ex-feds said it for him
This week some 800 former federal prosecutors signed a letter objecting to Attorney General William Barr’s declaration that special counsel Robert Mueller’s report did not support charges that President Donald Trump obstructed justice. In our view, as we wrote, the conduct Mueller described “would, in the case of any other person ... result in multiple felony charges for obstruction of justice.”
Why would so many former prosecutors speak out? For me, two reasons.
The first was to say what Mueller, for institutional reasons, could not say — that the president may have committed criminal acts. For those of us who have read the report, the evidence is clearly substantial. As we said, on the question of criminality, “these are not matters of close professional judgment.”
One example: On several occasions, Trump directed his White House counsel, Don McGahn, to fire Mueller. He also asked McGahn to falsely create a conflict of interest involving Mueller as a pretext for firing him. When these efforts became public, Trump made “repeated efforts to have McGahn deny the story.” He even told McGahn to write a letter falsely denying that Trump had directed Mueller’s termination.
As Mueller delicately put it: “Substantial evidence indicates that in repeatedly urging McGahn to dispute that he was ordered to have the special counsel terminated, the president acted for the purpose of influencing McGahn’s account in order to deflect or prevent scrutiny of the president’s conduct toward the investigation.”
In any other context, if the subject of an investigation had asked a witness to lie to prevent scrutiny of his conduct, that would justify an obstruction charge. Jeffrey Harris, a co-signer of our letter who once was Rudy Giuliani’s deputy at the Justice Department, told CNN he had “absolutely no doubt” that prosecutor Giuliani “would have indicted someone who committed the acts that are . . . in the Mueller report in a heartbeat. I am 100% confident of that.” Last month, as Trump’s attorney, Giuliani told Fox News Sunday that “there was no obstruction.”
Our letter makes clear that when Barr exonerated Trump on obstruction charges, his judgment was that of an appointee loyal to his boss. It was not in the least consistent with the considered judgment of hundreds of career prosecutors who deal with criminal obstruction on a daily basis. And the public should be aware of that.
The second reason is broader and more systemic. Increasingly, Trump is acting in a way designed to denigrate and disregard checks on his use of executive authority. His attorney general was just cited for contempt for refusing to turn over an unredacted version of the Mueller report. That same attorney general has, in effect, asserted that a president acting in the context of his official duties cannot obstruct justice. This president behaves more and more as if the law does not apply to him.
We had a revolution to overthrow the idea of a kingly prerogative like that. In signing the letter, many of us were making the point that even official acts, if done for corrupt motives, ought to be subject to prosecutorial scrutiny. As the Watergate prosecutors put it, for them “to shirk from an appropriate expression of our honest assessment of the evidence of the president’s guilt would not only be a departure from our responsibilities but a dangerous precedent damaging to the rule of law.”
James Wilson, one of the Founders and a member of the first Supreme Court, wrote that “far from being above the laws, (the president) is amenable to them in his private character as a citizen.” The Framers of our Constitution rightly thought that presidents could and should be criminally prosecuted like any other citizen.
I wish Mueller had said that more clearly. But because he didn’t, I and others must say it for him. It simply can’t be the case that the president, and only the president, can use his otherwise lawful powers in a corrupt way and not be called to account. At least I hope that isn’t the law.