On June 10, the House Judiciary Committee held a hearing that focused on allegations, documented by evidence in the Mueller report, that President Donald Trump obstructed justice by interfering with a criminal investigation into his own misconduct. We testified at this hearing, which served as another step towards helping the country understand what is actually in the Mueller report and what it means.
With the drumbeat of the 2020 primary getting louder, not to mention the myriad other news stories that assault us daily, there is an impulse to jump from story to story. But while the Mueller report itself has been completed, the work Mueller seems to have envisioned is far from over, namely, a decision as to whether there will be any consequences for obstructive conduct engaged in by the president.
The work of Mueller seems to have envisioned is far from over, namely, a decision as to whether there will be any consequences for obstructive conduct engaged in by the president.
Attorney General William Barr did the country a disservice when he withheld the Mueller report from public view for weeks, while claiming Mueller concluded there was “no collusion, no obstruction.” That is not what the report says. And that is not how the American public or Congress should understand the report’s conclusions.
While we would encourage everyone to read the report for themselves, we recognize it is lengthy and finding time is challenging for many people. Mueller included summaries for each volume of the report, which are brief and accessible, and for many, this may be the right place to start.
We start by acknowledging Mueller’s decision that he was bound by DOJ policy that prohibits indictment of a sitting president. Whether that policy is correct or not, prosecutors must follow the rules. Mueller did.
The special counsel’s office reviewed 10 possible acts of obstruction of justice by the president and laid out the evidence they acquired in each instance. Our careful review of the law and the evidence leads us to believe that there are multiple acts that would have led to an indictment of anyone other than a president, who likely escaped indictment only because of DOJ policy.
This is some of the obstructive conduct that the evidence in the Mueller report plainly establishes:
- In June of 2017, the president asked the White House counsel, Don McGahn, to arrange for Mueller to be fired. The president denied he had done this when news reports broke about the requested firing in 2018.
- The president made multiple efforts to get McGahn to refute the stories, including one that included a threat to fire McGahn if he did not do so. McGahn refused. Ultimately, the president brought McGahn into the Oval Office and ordered him to create a false record for official files that denied the president ordered him to fire Mueller. McGahn again refused, because he believed the president directed him to have Mueller terminated.
- After Attorney General Jeff Sessions complied with direction from DOJ ethics officials that required him to recuse from overseeing the investigation, Trump repeatedly tried to compel Sessions to “unrecuse” (no such thing exists) and ultimately tried to enlist a person outside of government, his former campaign manager Corey Lewandowski, to tell Sessions he would be fired if he didn’t change his mind about overseeing the investigation. Trump wanted Sessions to restrict the special counsel’s investigation to future elections. Had he succeeded, there would have been no investigation into Russian interference in 2016, leaving the country uninformed about the Russian attack on our elections and unprepared to protect future ones. The president sought to protect himself and his associates at the expense of the country.
- The president engaged in witness tampering, most notably, by dangling the prospect of a pardon in an effort to keep Paul Manafort from cooperating with the special counsel’s investigation.
Some have suggested that this conduct is unimportant and that because the president wasn’t fully successful in obstructing the investigation there is no harm. Nothing could be further from the truth. To protect the integrity of our criminal justice system, prosecutors are able to hold accountable people who attempt to interfere with an investigation, not just people who have the luck to be successful. Allowing an individual to avoid accountability because they weren’t successful or because investigators were unable to develop proof of underlying crimes would insure that the most successful obstructors avoid justice.
The context in which these acts of obstruction of justice occurred is deeply troubling. The Mueller investigation confirmed the conclusion of the intelligence community that Russia had been behind the attack on the DNC’s computers and developed alarmingly specific information about the full nature of the attack Russia launched an attack on our 2016 election. Mueller indicted Russian nationals and companies in two separate indictments in that regard. The president’s conduct was designed to curtail, if not terminate, the investigation into Russia’s activities, as well as his own. Had he been successful, these details would not have come to light and the indictments that resulted from them would not have been returned. Although there is much work still to be done to protect our elections, the special counsel played a crucial role in educating the American people in this regard.
Whether these crimes will be the subject of impeachment proceedings in the House or whether they will be left to the judgment of the voters in 2020 is a political choice that will be made by our elected officials. But as former prosecutors, our assessment is that even leaving aside the allegations that Trump is “Individual-1,” an unnamed coconspirator in the campaign finance fraud Michael Cohen was convicted of, there are substantial charges of obstruction of justice that could be successfully brought against him, once he is no longer the president of our country.
More than 1,000 of our former federal prosecutor colleagues hold that belief as well. A bipartisan group signed a letter, out of concern that the special counsel’s findings were misrepresented to the American people, stating there is sufficient evidence to charge and convict the president of obstruction of justice. We both signed that letter and agree with its conclusions.
It seems like every day brings new allegations about this administration’s conduct. The sheer volume of them can be overwhelming and make it difficult to focus. The special counsel, far from exonerating the president on criminal obstruction of justice charges, presented a compelling case that the president violated the law. It is important for Congress and the American people to understand the misconduct that occurred and how it threatened our national security so that we can fulfill our own responsibilities as citizens to make informed choices about our leaders.