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Opinion Hundreds of prosecutors: You bet we’d have indicted Trump

Attorney General William P. Barr testifies at a Senate Judiciary Committee hearing on May 1. (Andrew Harnik/AP)

The bipartisan group Protect Democracy has organized a letter signed by more than 450 former federal prosecutors (who have served in both Republican and/or Democratic administrations). The letter explains:

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 [special counsel Robert S.] 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.

The authors explain that by directing then-White House counsel Donald McGahn to get rid of Mueller — and then prod McGahn to deny he had done so — Trump’s conduct fit squarely within the definition of obstruction. (“Firing Mueller would have seriously impeded the investigation of the President and his associates — obstruction in its most literal sense. Directing the creation of false government records in order to prevent or discredit truthful testimony is similarly unlawful.”)

In addition, by his ongoing obsession to limit the scope of the investigation, Trump “repeatedly pressured then-Attorney General Jeff Sessions to reverse his legally-mandated decision to recuse himself from the investigation.” He went to McGahn, to then-White House Chief of Staff Reince Priebus and even to a private citizen, Corey Lewandowski, in an effort to drag Sessions back into the inquiry and act as his own Roy Cohn (i.e., protect Trump from digging into activity that could support a finding of obstruction), as Trump liked to say.

With regard to witness tampering — something Attorney General William P. Barr said in his confirmation hearing would not be protected activity under Article II — the prosecutors conclude:

The Special Counsel’s report establishes that the President tried to influence the decisions of both Michael Cohen and Paul Manafort with regard to cooperating with investigators. Some of this tampering and intimidation, including the dangling of pardons, was done in plain sight via tweets and public statements; other such behavior was done via private messages through private attorneys, such as Trump counsel Rudy Giuliani’s message to Cohen’s lawyer that Cohen should “[s]leep well tonight[], you have friends in high places.”

In sum, there are multiple grounds for finding Trump had obstructed justice. And it’s not even a hard call, the former prosecutors make clear. They find Barr’s rationale for refusing to proceed without merit (“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”). They therefore find that “but for the OLC [Office of Legal Counsel] memo, the overwhelming weight of professional judgment would come down in favor of prosecution for the conduct outlined in the Mueller Report.”

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The letter accomplishes several things.

First, it makes clear to Barr and the Justice Department that Barr’s decision is indefensible by any lawyer in good faith. Barr may be incapable of feeling shame, but others in the department should not risk their own professional reputations defending or encouraging the attorney general. It is also a way of signaling judges who may soon be considering a contempt citation that Barr is acting in ways inconsistent with his oath of office and with rules of professional conduct for prosecutors.

Second, the letter strengthens the case for Barr’s impeachment and/or for holding him in contempt. This is a prosecutor who’s shed any semblance of devotion to the Constitution and legal ethics. His excuses for withholding testimony and the fully unredacted report can properly be seen as evidence to protect himself from opprobrium. He is trying to shield both Trump and himself from a full and honest accounting of Trump’s misdeeds and of Barr’s efforts to misrepresent the facts.

Third, it should be a sobering reminder to Trump: After he leaves office, there is every reason to believe conscientious prosecutors would indict him. Unless Trump wants to leave office early and rely on a pardon from President Pence, he should brace himself for federal prosecutors (some on the letter who may return to government) to descend upon him. This is, in other words, a direct rebuttal to the “exoneration” nonsense pushed by Trump, his advisers and Fox News hosts (but I repeat myself). Not only did Mueller not exonerate him, but experienced prosecutors also know Mueller did not and agree with him on the merits.

Since Barr plays dumb in failing to comprehend why Mueller, who was barred from indicting a sitting president, felt it unfair to say “I’d indict but I can’t,” Mueller should oblige the attorney general. Mueller should do precisely what Barr says — render his prosecutorial judgment. As a career, respected member of law enforcement, Mueller’s judgment almost certainly would align with a bipartisan cross-section of more than 450 prosecutors.

So, sure, let’s have at it. Mueller can deliver his judgment and 450 (or more) prosecutors can give it their stamp of approval. The country would certainly be influenced by their collective judgment.

Read more:

David E. Kendall: Mueller’s conclusion was a dereliction of his duty

Greg Sargent: Trump’s new effort to muzzle Mueller gives away his big scam

Jennifer Rubin: Trump tries to silence another witness

Max Boot: My former party’s reaction to the Mueller report fills me with disgust

Hugh Hewitt: Democrats have done Republicans a huge favor