Instinctively I started looking for George Conway’s name among the signatories here before realizing that he’s never actually been a federal prosecutor. He almost was — thanks to Donald J. Trump — but then had a change of heart.
Anyway, he’s promoting the hell out of the letter on his Twitter feed today. Even better than a signature as far as the authors are concerned, I’m sure.
Who’s the target of this missive, anyway? Trump, right, but who else?
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.
Read the specifics for yourself. WaPo describes it as a “rebuttal” to Bill Barr’s conclusion in his initial summary of the Mueller report that Trump didn’t obstruct justice, which I think is right. This letter reads to me like a sort of “counter-summary.” The Democratic complaint about Barr’s summary has been that he pre-spun the report for Trump by omitting Mueller’s own detailed, and more damning, summaries from his letter and by substituting his judgment that there was no obstruction for Mueller’s conclusion that he couldn’t exonerate the president. At best that summary became a sort of guideline for the public in how to read the report; at worst it was a substitute for it, with some people digesting the “no collusion, no obstruction” verdict and deciding that they didn’t need to pay attention to Mueller’s detailed findings when the report was published.
The prosecutors’ letter is the anti-Trump guideline to the report’s obstruction section, emphasizing the dubious actions taken by Trump that Barr neglected to highlight. The amazing thing about it to me is that it presents the obstruction question as an easy call even though no one involved in this case, including Bob Mueller himself, seems to have viewed it that way. Barr concluded that Trump didn’t obstruct in the meaning of the federal statute. Rod Rosenstein apparently agreed with that conclusion. And if you believe NBC, Mueller’s own team was divided on the question:
Three government officials have told NBC News that a dispute within the special counsel’s office on the facts and the law was one factor behind Mueller’s decision not to make a call on the obstruction question.
The lawyers and FBI agents on Mueller’s team could not reach an agreement about whether Trump’s conduct amounted to a corrupt — and therefore illegal — effort to impede the probe, the three officials said…
At least one faction within the office says their intent was to leave the legal question open for Congress and the public to examine the evidence, the U.S. official who has spoken to them said. It’s not clear how Mueller himself feels about the matter.
“The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred,” Mueller’s report states in the introduction to the obstruction section, appearing to confirm that even his own team of lawyers struggled with it. But the prosecutors’ letter doesn’t treat it as “difficult,” it treats it as a slam dunk. That smells more like a political conclusion than a legal one and it makes Mueller another target, possibly inadvertent, of the letter. After all, in the end it was Mueller’s choice to leave the obstruction decision in Bill Barr’s hands; he could have declared, as the signatories here have, that Trump’s actions would amount to obstruction but for his office. If he was wary of accusing Trump on grounds that someone who can’t be indicted has no opportunity at a public trial to answer the accusation, he could have been plainer in suggesting that Congress take up the question. It was his allergy to forming a conclusion about this, not Barr’s summary, that’s the “original sin” of the obstruction debate, so to speak.
But even Mueller’s not the ultimate target here. I think it’s the OLC, which authored the DOJ precedent that sitting presidents can’t be indicted. Most of the evidence of obstruction that the letter cites refers to Trump exercising presidential powers — threatening to fire Mueller, trying to get Sessions to un-recuse himself from Russiagate, hinting at pardons for witnesses who refuse to cooperate. Ultimately the signatories’ complaint is with the constitutional argument that the president can’t be charged for interfering with investigations because the prosecution power properly belongs to him as the chief executive under Article II. In a twisted way, he’s exercising “prosecutorial discretion” by behaving the way he did. He can certainly be punished, but that punishment is political, not legal: Impeach him, remove him, then indict him. He’s accountable! — but to the people’s representatives in Congress, not to the DOJ. If they don’t have the stones and/or the integrity to remove him, that’s a failure of the legislature.
Which means maybe Congress is the ultimate target of the letter.
Here’s Andrew Napolitano weighing Trump’s options in blocking Mueller from testifying. Exit question: Given that the letter increases the pressure to impeach Trump even though there’s zero possibility of Senate Republicans removing Trump from office, the person likely to suffer the most from it is Nancy Pelosi, not Trump, right?