This week about 800 former federal prosecutors (so far) have 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, there were two reasons. 

The first was to say what Mueller, for institutional reasons, could not say — that the president may have committed criminal acts. Mueller did tell us that had he been able to confidently say that the evidence did not support charges of obstruction against the president, he would have said so. He did not.

Left unsaid however, was the evident conclusion — that, in fact, ample evidence of criminal obstruction by the president existed. For those of us who have read the factual details of the report, it is clear that the evidence is substantial. As we said, on the question of criminality, “these are not matters of close professional judgment.”

To take but one example: On several occasions, President 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 news reports of these efforts became public, Trump made “repeated efforts to have McGahn deny the story.”  Indeed, 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.”

Barr judged Trump as an appointee loyal to boss

In any other context, if the subject of an investigation had asked a witness to lie to prevent scrutiny of his conduct, this would justify an obstruction charge. Jeffrey Harris, who co-signed the letter, used to be Rudy Giuliani’s deputy at the Justice Department. “I have absolutely no doubt that prosecutor Rudy Giuliani would have indictedsomeone who committed the acts that are … in the Mueller report in a heartbeat. I am 100% confident of that,” he told CNN.

Today, Giuliani is Trump’s attorney and says it would be “ridiculous” go after Trump for obstruction. “There was no obstruction,” he said on Fox News Sunday last month after the Mueller report was released.

Our letter makes it clear that when Barr exonerated the president on obstruction charges, his judgment was that of a presidential 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 American public should be aware of that as they evaluate President Trump’s conduct in office.

Presidents can and should be prosecuted 

The second reason is broader and more systemic, at least for me. Increasingly, President Trump is acting in a manner designed to denigrate and disregard checks on his use of executive authority. His attorney general was justcited for contempt Wednesday for refusing to turn over an unredacted version of the Mueller report. That same attorney general has, in effect, asserted that when a president acts within the context of his official duties, he cannot obstruct justice. Increasingly, the president acts as if the law does not apply to him. 

Every aspect of American history rejects that idea. We had a revolution to overthrow the idea of a kingly prerogative.  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 special counsel Mueller had said that more clearly.  But because he didn’t, I and others must say it for him. It simply cannot 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.

Image credit: Nicole S Glass

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