375 former prosecutors: Anyone else would have been charged

By Matt Zapotosky / The Washington Post

WASHINGTON — More than 370 former federal prosecutors who worked in Republican and Democratic administrations have signed on to a statement asserting special counsel Robert Mueller’s findings would have produced obstruction charges against President Donald Trump — if not for the office he held.

The statement — signed by myriad former career government employees, as well as high-profile political appointees — offers a rebuttal to Attorney General William Barr’s determination that the evidence Mueller uncovered was “not sufficient” to establish Trump committed a crime.

Mueller himself had declined to say one way or the other whether Trump should have been charged, citing a Justice Department legal opinion that sitting presidents cannot be indicted, as well as concerns about the fairness of accusing someone for whom there can be no court proceeding.

“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 former federal prosecutors wrote.

“We emphasize that these are not matters of close professional judgment,” they added. “Of course, there are potential defenses or arguments that could be raised in response to an indictment of the nature we describe here … But, 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.”

The statement is notable for the number of people who signed it — 375, as of Monday afternoon — and the positions and political affiliations of some on the list. It was posted online Monday afternoon; those signing it did not explicitly address what, if anything, they hope might happen next.

Among the high-profile signers are former Massachusetts Gov. Bill Weld, a former U.S. attorney and Justice Department official in the Reagan administration who is running against Trump as a Republican; Donald Ayer, a former deputy attorney general in the George H.W. Bush Administration; John S. Martin, a former U.S. attorney and federal judge appointed to his posts by two Republican presidents; Paul Rosenzweig, who served as senior counsel to independent counsel Kenneth Starr; and Jeffrey Harris, who worked as the principal assistant to Rudolph Giuliani when he was at the Justice Department in the Reagan administration.

The list also includes more than 20 former U.S. attorneys, and more than 100 people with at least 20 years of service at the Justice Department — most of them former career officials. The signers worked in every presidential administration since that of Dwight D. Eisenhower.

The signatures were collected by the nonprofit group Protect Democracy, which counts Justice Department alums among its staff and was contacted about the statement last week by a group of former federal prosecutors, said Justin Vail, an attorney at Protect Democracy.

“We strongly believe that Americans deserve to hear from the men and women who spent their careers weighing evidence and making decisions about whether it was sufficient to justify prosecution, so we agreed to send out a call for signatories,” Vail said. “The response was overwhelming. This effort reflects the voices of former prosecutors who have served at DOJ and signed the statement.”

A spokesman for the special counsel’s office declined to comment. A spokeswoman for the Justice Department referred a reporter to Barr’s previous public statements on the subject.

Many legal analysts have wondered since Mueller’s report was released whether the special counsel believed he had sufficient evidence to charge Trump and was just unwilling to say it out loud.

By the report’s account, Trump — after learning he was being investigated for obstruction — told his White House counsel to have Mueller removed. And when that did not work, according to Mueller’s report, Trump tried to have a message passed to Attorney General Jeff Sessions to limit the scope of Mueller’s authority. Of that episode, Mueller’s team wrote there was “substantial evidence” to indicate Trump was trying to “prevent further investigative scrutiny” of himself and his campaign.

“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,” the former federal prosecutors wrote in their letter.

They wrote that prosecuting such cases was “critical because unchecked obstruction — which allows intentional interference with criminal investigations to go unpunished — puts our whole system of justice at risk.”

Mueller’s team, though, wrote that they determined not to make a “traditional prosecutorial judgment” in part because of the Justice Department opinion on not indicting sitting presidents, and that the evidence obtained “presents difficult issues that would need to be resolved” if they were to do so.

“At the same time, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state,” Mueller’s team wrote.

After receiving Mueller’s report, Barr said he and Deputy Attorney General Rod Rosenstein reviewed the case themselves and determined the evidence was not there. He offered a robust defense of that decision at a recent congressional hearing, detailing for lawmakers possible defenses Trump could have raised in each episode.

“The government has to prove things beyond a reasonable doubt,” Barr said. “And, as the report shows, there’s ample evidence on the other side of the ledger that would prevent the government from establishing that.”