By Dartunorro Clark (NBC News)
President Donald Trump would have been indicted for obstruction of justice in special counsel Robert Mueller's investigation if he did not hold the nation's highest office, more than 400 former federal prosecutors argued in an open letter published on Medium on Monday.
The ex-prosecutors — who have served under both Republican and Democratic administrations dating back to President Dwight D. Eisenhower — said Attorney General William Barr's decision not to charge Trump with obstruction "runs counter to logic and our experience."The letter added, “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.”
“We believe strongly that, but for the OLC memo, the overwhelming weight of professional judgment would come down in favor of prosecution for the conduct outlined in the Mueller Report," the letter continued.
Mueller's report did not say that Trump would have been charged had he not been the president, but it did cite the longstanding opinion from the Justice Department's Office of Legal Counsel that says a sitting president cannot be indicted. Mueller said that his team "accepted OLC's legal conclusion for the purpose of exercising prosecutorial jurisdiction."
The Mueller report, which identified 10 episodes that could be considered potential obstruction of justice, did not come to a conclusion on whether to charge the president. Barr, in a letter to Congress sent before the redacted report was made public, said that he had decided that Trump did not obstruct the probe. Barr said they didn't amount to illegal activity by the president and that he disagreed with some of Mueller's legal theories on whether those episodes amounted to obstruction "as a matter of law."
According to Mueller's 448-page report, his office weighed charging Trump with obstruction but didn't in part because "we recognized that a federal criminal accusation against a sitting President would place burdens on the President's capacity to govern and potentially preempt constitutional process for addressing presidential misconduct."
Mueller's report added, "The president's efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the president declined to carry out orders or accede to his requests."
The letter's list of signees — 418 as of Monday afternoon — includes 29 people who have served in the Justice Department under Trump and more than 100 officials who have served in the DOJ for 20 years or more.
It also includes the signature of Jeffrey Harris, who worked forTrump attorney Rudy Giuliani when he was the then-associate attorney general under President Ronald Reagan. Bill Weld, a former assistant U.S. attorney during the Reagan administration running as a Republican against Trump in 2020, also signed the letter.
“All of this conduct — trying to control and impede the investigation against the President by leveraging his authority over others — is similar to conduct we have seen charged against other public officials and people in powerful positions,” the ex-prosecutors wrote.
“Of course, there are potential defenses or arguments that could be raised in response to an indictment of the nature we describe here . . . 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.”
Protect Democracy, a nonpartisan, nonprofit organization that has former DOJ and White House officials among its staff, organized the effort, according to the Medium post.
In their letter, the former prosecutors cited several instances detailed in Mueller's report that could, in their view, have warranted an obstruction charge, including Trump telling former White House counsel Don McGahn to fire Mueller, Trump attempting to have former Attorney General Jeff Sessions take over the investigation after he had recused, Trump trying to get Sessions to limit the scope of the probe and Trump attempting to influence the testimony of his former lawyer Michael Cohen and his former campaign chairman Paul Manafort.
Mueller's 448-page report said, for example, that Trump ordered McGahn to tell Deputy Attorney General Rod Rosenstein that "Mueller has to go." McGahn resisted those efforts despite Trump’s insistence, the report said. But, when news of those events were first reported in The New York Times months later, Trump sought to have McGahn deny it and write a letter "for our records" changing his story.
“Firing Mueller would have seriously impeded the investigation of the President and his associates — obstruction in its most literal sense,” the former prosecutors wrote in the letter published Monday. “Directing the creation of false government records in order to prevent or discredit truthful testimony is similarly unlawful.”
Barr argued in recent congressional testimony that "there is evidence that the president truly felt that the (New York) Times article was inaccurate and he wanted McGahn to correct it."
"We believe it would be impossible for the government to establish beyond a reasonable doubt that the president understood that he was instructing McGahn to say something false because it wasn't necessarily false," he said.
"The government has to prove things beyond a reasonable doubt," he added in response to questions about the president's actions and intent. "As the report shows, there's ample evidence on the other side of the ledger that would prevent the government from establishing that."
