Conclusion of an analysis by the distinguished retired judge John H. Wilson
D. Can President Trump be prosecuted for Obstruction of Justice?
While it is highly debatable whether these actions constitute the crime of Obstruction of Justice, what is not debatable is that the President, while in office, cannot be prosecuted. The Office of Legal Counsel issued an opinion, cited in the Mueller Report, which states that “the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.” While the Special Counsel accepted this restriction, the Report notes that “a criminal investigation during the President’s term is permissible,” and “a President does not have immunity after he leaves office.”
In his now infamous letter, Attorney General William Barr made it clear that “Deputy Attorney General Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.” This decision was based upon a lack of criminal intent on the part of President Trump – “the report identifies no actions that, in our judgment, constitute obstructive conduct, had a nexus to a pending or contemplated proceeding, and were done with corrupt intent.” It was also made “without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.”
Recently, a petition signed by, at last count, just over 800 former federal prosecutors, states that “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.” Interestingly enough, this group of experienced lawyers do not state anywhere in their position paper which specific statutes they believe the President violated – there is only a general statement that Mr. Trump’s actions constitute “obstruction of justice.”
Setting aside the obviously political nature of this petition (this author has been unable to locate a similar petition regarding the decision of AG Loretta Lynch to not prosecute Former Secretary of State Hillary Clinton), the only real recourse left for those who disagree with AG Barr and Deputy AG Rosenstein’s assessment is the one currently being championed by Congressional intellectuals like Maxine Waters (D-CA) and Alexandria Ocasio-Cortes (D-NY) – impeachment.
E. Can President Trump be impeached based upon the findings of the Mueller Report?
Under Article II, Sec 4 of the US Constitution, “the President, Vice President, and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” It is important to understand that a “misdemeanor” is not only a violation of a minor criminal statute – “John Randolph Tucker explained that it was ‘a synonym for misbehavior’; and Webster’s original dictionary defined it as ‘ill behavior, evil conduct, fault, or mismanagement.’”
Currently, an Article of Impeachment is pending before Congress – House Resolution 705, sponsored by Rep. Al Green (D-Tx). However, the sole ground for impeachment stated in this bill accuses the President of a “high misdemeanor” – “his bigoted statements (have) done more than simply insult individuals and groups of Americans, he has harmed the American society by attempting to convert his bigoted statements into United States policy.” This allegation relates specifically to the so-called “Muslim ban” on immigration from certain countries associated with terrorism activities; barring transgendered persons from serving in the military; comments made during the Charlottesville riots; and disparaging comments about third-world countries.
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Given that President Clinton was impeached for making false statements, under oath, regarding his affair with a White House intern, the possibility of an impeachment of President Trump based upon the findings stated in the Mueller Report is substantial.
F. Could President Trump be removed from office?
Despite the very clear and unequivocal evidence that President Clinton had lied, the Congress still acquitted him. As explained by University of North Carolina professor Michael Gerhardt, “impeachments require a significant amount of political will…an impeachment will take up a lot of a Congress’s time and energy, and congress members who support impeachment have a lot to lose and potentially little to gain by undertaking an impeachment.”
Is there the political will to remove President Trump from office? Several of the Democratic candidates for President, including Senator Kamala Harris (D-CA) and Senator Elizabeth Warren (D-MA) think so. But in the House of Representatives, Speaker Nancy Pelosi is not ready to take this step. Instead, she is calling for aggressive investigations of the President, no doubt hoping for some better evidence.
This would explain the broad subpoenas issued by the House Judiciary Committee, and the holding of AG William Barr in contempt for not appearing before the Committee and letting himself be cross-examined by staff members rather than sitting Representatives. But as reported in Politico, “Speaker Nancy Pelosi and her leadership team worry that such moves, while pleasing to a party base that loathes the president, would backfire and boost Trump politically.”
Alexander Graham Bell is credited with stating, “When one door closes, another door opens.” The door may be closed on the Mueller Report – but the door stands wide open on the possibility of impeachment.
Photo: Official Congressional photo