The number now exceeds 800 former federal prosecutors. They have signed an extraordinary letter arguing that if Donald Trump were anyone other than the president, he would face “multiple felony charges for obstruction of justice,” based on the findings of Robert Mueller, the special counsel.
At the top, they make a point of stating that they have “served under both Republican and Democratic administrations.” Their ranks include Jeffrey Harris, a former assistant U.S. attorney in New York and friend of Rudy Giuliani, who told the Washington Post last week that “I clearly would have prosecuted that person or persons, and I can tell you, when Rudy was a prosecutor, he would’ve done the same thing,”
Another signer, Paul Rosenzweig, part of the Kenneth Starr investigation of Bill Clinton and long active in the conservative Federalist Society, told the Post: “I think it’s important to say that Trump’s conduct violated criminal law, and that if he were another person, he’d be prosecuted.”
The letter works as a powerful response to the assertion of William Barr, the attorney general, that Mueller found insufficient evidence to make an obstruction case. The prosecutors emphasize not only that several of the president’s actions “satisfy all of the elements of an obstruction charge.” They explain: “ … these are not matters of close professional judgment.” They add that to look at the report and not see a case “runs counter to logic and our experience.”
How does the letter from federal prosecutors help in moving forward, in sorting through what the special counsel found and coming to a judgment about the president’s behavior? It actually takes a cue from Mueller, who in the way he framed the section of the report on potential obstruction of justice and laid out the facts invited a larger public discussion about accountability.
This report doesn’t arrive at “case closed,” contrary to the declaration of Mitch McConnell, the Senate majority leader.
Consider how carefully Mueller explains his decision to stay away from the traditional path of whether to indict or not. He cites the long-established view of the Office of Legal Counsel in the Justice Department that a sitting president should not be indicted because it would erode the capacity of the executive branch to do its job and thus violate the separation of powers.
Here is a rich irony, the president benefiting from the separation of powers, even as he tramples the concept in resisting to the extreme congressional oversight.
Mueller thinks along the same line in withholding judgment about whether the president committed a crime. Fairness counsels against such a declaration, the president lacking a legal avenue to clear his name. Even a sealed indictment could leak, the resulting fallout almost certain to harm the executive’s ability to govern.
The Office Legal Counsel does permit the investigation of a president. Mueller describes his effort as “a thorough factual investigation in order to preserve the evidence when memories are fresh and documentary materials were available.” Yet there is more to it. He points to an additional concern about indicting a president. It could “potentially preempt constitutional processes for addressing presidential misconduct.”
Put another way, impeachment proceedings could be delayed or disrupted as Congress, and the country, wait to see whether the indicted president is found guilty or not at trial. Better to have a jury or the House and Senate decide the president’s fate?
So Mueller didn’t just honor the rules, about which he has received undeserved criticism. His modest approach makes more devastating his concluding thoughts on how he handled the obstruction of justice question.
The report states: “ … if we had confidence after a thorough investigation of the facts that the president clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment.” And a sentence later: “Accordingly, while this report does not conclude that the president committed a crime, it also does not exonerate him.”
Mueller has explained why there is no conclusion about a crime. That leaves the rest of us to run the report and its evidence through our “constitutional processes.” To that effort, more than 800 former federal prosecutors have added their hard to ignore and insightful say.
Douglas is the Beacon Journal/Ohio.com editorial page editor. He can be reached at firstname.lastname@example.org.