Yeomans Work

The Pros Agree: Trump Would Be in Handcuffs but for OLC

May 8, 2019

This week, I joined some 700 former federal prosecutors (the number is still growing) in signing a letter attesting to Trump’s obstruction of justice.  The signatories span Democratic and Republican administrations. Many worked at the Department of Justice for decades. The letter stated: “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 letter discussed areas in which the evidence establishes violations of the obstruction of justice statutes, including, “[t]he President’s efforts to fire Mueller and to falsify evidence about that effort; [t]he President’s efforts to limit the scope of Mueller’s investigation to exclude his conduct; and [t]he President’s efforts to prevent witnesses from cooperating with investigators probing him and his campaign.”

The letter said: “We emphasize that these are not matters of close professional judgment.” It concluded that “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.”

So, the opinion of the professionals is in: the President of the United States committed serious crimes while in office, crimes that cut to the core integrity of our system of justice. The letter directly rejects Attorney General Barr’s conclusion that Trump did not obstruct justice.

The letter was necessary only because Barr flagrantly misrepresented the contents of the report, giving Trump and uncritical journalists an easy talking point: no collusion, no obstruction. We know that the report explicitly rejected making findings about collusion, concluding instead that the available evidence did not support finding a criminal conspiracy. Indeed, the report contains substantial evidence of a symbiotic relationship between Russia and the Trump campaign that looks undeniably like collusion.

And now, we know that Attorney General Barr’s determination that the report did not support a finding of obstruction runs dramatically against the overwhelming weight of experienced professional opinion. Sadly, Robert Mueller appears to have underestimated the hurdles the essential findings of his investigation would have to surmount to reach Congress and the public.  Mueller prepared summaries for public release that are very damaging for Trump and would have launched a very different public discussion had Barr not suppressed them in favor of his own distorted summary. As has happened too often in our recent political life, the play-by-the-rules straight shooter was run over by a ruthless, shortsighted partisan.

Trump administration obstruction has only intensified since partial release of Mueller’s report.  Barr has disobeyed a subpoena to deliver an unredacted version to Congress, forcing the House Judiciary Committee to refer him to the full House for a contempt vote.  In anticipation, Trump has asserted executive privilege over the redacted portions of the report and all of the supporting investigative materials.  This assertion of privilege may delay Mueller’s testimony before the committee.  Although Mueller’s departure from the Department of Justice is reported to be imminent, Trump controls Mueller’s appearance so long as Mueller remains a DOJ employee. The assertion of privilege will remain after Mueller leaves, but there is little Trump can do to stop Mueller from testifying as a private citizen.  It will be up to Mueller to decide whether to respect Trump’s claim.  Former White House Counsel Don McGahn, who is already a private citizen, has said that he will not honor a committee subpoena for documents over which Trump has asserted privilege.

In any event, the battle over the supporting material and redactions is likely to go to court.  House members have asserted that Trump waived executive privilege when he allowed witnesses such as McGahn to speak with Mueller.  That claim exceeds the usual understanding that executive privilege does not come into play in intra-branch communications, i.e. when two executive branch employees speak with each other.  The privilege, however, is waived when communications are transmitted to Congress or the judiciary (including a grand jury) or are made public.  So, the privilege plainly has been waived for all information included in the unredacted portions of the Mueller report.  Access to the rest will engender a court fight.  Recall, however, that even absent a waiver, Congress should be able to defeat executive privilege if the information is required for impeachment.

Trump has shown his hand. He will continue his obstruction by resisting all attempts by Congress to hold him accountable, ranging from production of his tax returns to information regarding security clearances to all matters involving the Mueller investigation. He has declared himself beyond the reach of congressional oversight.

Meanwhile, his attorney general has declared him above the law by rejecting the overwhelming evidence that he obstructed justice and asserting the very dangerous view that the president can shut down any investigation that he thinks is unfair or in which he thinks he is falsely accused. That’s a prescription for unbridled executive power that, if allowed to stand, will place Trump and all future presidents beyond the reach of investigators.

Evidence sufficient to charge the President (but for the OLC opinion) with multiple serious felonies is already in the public domain. There is no legitimate professional dispute about the quantity or quality of the evidence. There is no looking away.

Impeachment is already inevitable. Trump’s resistance will make it more so.  Impeachment may suit Trump’s political vision, but House Democrats can no longer be deterred by fear of political repercussions. They must have confidence that they and the country will benefit by bringing the Mueller report to life and forcing Trump’s defenders to own the egregiously criminal and deeply unpatriotic behavior detailed in the report. Preservation of the Constitution demands it.

Sign up to get Yeomans Work in your inbox!

Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.