May 7, 2019

ICYMI: If Not for the OLC Memo...

There are now more than 700 former federal prosecutors who have signed on to the statement saying that, absent the Department of Justice Office of Legal Counsel's determination that a sitting president can't be indicted, president Trump surely have been indicted on multiple counts of obstruction of justice.

Their statement is excerpted below:
We are former federal prosecutors. We have served under both Republican and Democratic administrations at different levels of the federal system: as line attorneys, supervisors, special prosecutors, United States Attorneys, and senior officials at the Department of Justice.  The offices in which we served were small, medium, and large; urban, suburban, and rural; and located in all parts of our country.
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 folks who signed onto the statement include some who have served as far back as the Nixon, Ford and Carter presidencies; they have a total of over 8929 years of service, and average of over 12 years of service each.

These are not inexperienced people and they're a whole lot more qualified the vast majority of the armchair quarterbacks  - including the president himself, a boatload or three of elected officials, and countless talking heads, Trump voters and Clinton haters who have (or maybe haven't even) read the Mueller report and reached the conclusion that the president was 'totally exonerated.'

So what did these experts find when they read the report?
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.  
The "overwhelming" evidence of corrupt intent? Yeah, that includes:
  • 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. 
And, they provide details on each of those bullet points to make their case, going so far as to point out that
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. 
There was more in the report that added to the obstruction case, they noted; they called out facts on the three bullet points only. And while they note that there are defenses or arguments that could be made, and that under our system the accused are presumed innocent, not guilty, they are clear that 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. 
As former federal prosecutors, we recognize that prosecuting obstruction of justice cases is critical because unchecked obstruction - which allows intentional interference with criminal investigations to go unpunished - puts our whole system of justice at risk.  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.  
 Another 15 people have signed on during the time it took me to complete this post.


  1. Acknowledge all mentioned above:
    So, not a deflection here, but would Bill's little visit with Lynch on the Tarmac count as obstruction too?

  2. There are some differences. (1) Most importantly, Clinton had no official government role at the time of the meeting, so he had no 'actual' power to influence Lynch and her decision about his wife. (2) With Trump/Mueller, we have a participant with documentation saying he refused Trumps's repeated directive to interfere (by firing Mueller) as well as 10 or 11 other instances of obstruction. Don't believe there was anything similar for the meeting between Clinton and Lynch. Their meeting was certainly ill-advised and likely designed by Clinton to influence Lynch, but is that obstruction or lobbying by a former government official?