As of Wednesday, more than 1,000 former federal prosecutors had signed a statement explaining that, in their professional judgment and based on the facts described in special counsel Robert S. Mueller III’s report, President Trump would have been criminally charged with obstruction of justice if he were not the president.
This public outcry from such a large group of prosecutors — who have served under Republican and Democratic presidents — is unprecedented and indicative of overwhelming expert agreement on the evidence and law supporting charges against Trump.
Our organization, Protect Democracy, helped arrange the statement, and person after person who added their name to it cited fairness and accountability as motivations. Take the response of Jeffrey Harris, a former Southern District of New York prosecutor and longtime friend and colleague of Rudolph W. Giuliani, Trump’s lawyer. If faced with someone who had done any of the things the president did to interfere with the Mueller investigation, Harris said, “I would have clearly prosecuted that person or persons, and … when Rudy was a prosecutor, he would’ve done the same thing.”
Simply put, if you the reader or anyone else in the country had done what the president did, that person would be charged with a crime.
As former employees of the Department of Justice, where ensuring “fair and impartial administration of justice for all Americans” is an express component of the mission, we were not surprised that Trump’s potential escape from accountability alarmed so many of our legal colleagues. Over nearly 20 years with the department, one of us routinely prosecuted and sent people to prison for conduct similar to the president’s. For Atty. Gen. William Barr, who leads the department, and the president to argue that certain laws ordinary Americans would go to prison for violating don’t apply to President Trump because he has “an absolute right do what [he] want[s] to do with the Justice Department” is an attack on the values we defended during our years at the Justice Department.
It is up to all of us — judges, members of Congress, voters — to actually hold the president accountable.
The special counsel’s report and Wednesday’s remarks indicate that Mueller reached the same conclusion as the prosecutors who signed the statement: Trump obstructed justice. However, Mueller explained in both his report and his remarks that he could not criminally indict the president because of a longstanding department legal opinion that a sitting president cannot face criminal charges.
While there is some doubt about whether that opinion is a correct reading of the Constitution, Mueller also said he believed that even if the criminal justice system could not hold the president accountable, Congress could. “The conclusion that Congress may apply the obstruction laws to the president’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law,” he wrote. On Wednesday Mueller emphasized that “the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.”
In other words, Congress has the authority to check the president for abusing his office — just like it did with Presidents Nixon and Clinton.
But Trump and his lawyers are arguing he is not accountable to Congress either. In the wake of the Mueller report, the House has attempted to conduct investigations into the wrongdoing the special counsel uncovered and into some of the remaining unanswered questions. The president has stonewalled Congress at every turn, denying a coequal branch of government access to the unredacted Mueller report and underlying documents, and directing individuals not to testify (or even show up).
Trump’s lawyers have even argued — in federal court and in a letter from the White House counsel to the House Judiciary Committee — that Congress lacks the authority to investigate presidential wrongdoing. Under this theory, Congress had no right to investigate Nixon for Watergate. This sweeping argument is legally wrong, flies in the face of well-established and longstanding precedent, and has already been soundly rejected by two federal judges.
Those recent court rulings have not deterred the president from continuing to resist congressional authority and abusing his power. In the last few days, he has groundlessly accused of treason those who launched the initial investigation into possible coordination between his campaign and Russia. And he has threatened to use the vast power of federal law enforcement to investigate his political opponents. This is the stuff of monarchs and despots, not democratically elected leaders. We and many of the prosecutors who signed the statement are profoundly troubled by a president who holds himself completely above the law.
The president and those who would grant him unchecked power are wrong. Much as Trump may lash out at those who seek to constrain him, he still must answer to the Constitution and laws of the United States, to Congress, to the courts, and ultimately to the American people. The special counsel ended the final section of his report by saying: No person “in this country is so high that he is above the law.”
But it is up to all of us — judges, members of Congress, voters — to actually hold the president accountable.
Congress must continue to use available enforcement tools to ensure that the administration respects Congress’ authority to conduct oversight and complies with the law. Congress also should pass comprehensive legislation to make clear that the rules and practices that have successfully prevented past presidents from abusing their power — but have failed to constrain this president – aren’t optional. These include rules that prevent the president from interfering in a law enforcement investigation. Courts must continue to buttress congressional authority by ordering the administration to comply with congressional subpoenas and by otherwise checking the president’s abuses of his power.
Ultimately, the American people will have to decide whether they are comfortable with a president who believes he answers to no one.
Kristy Parker and Ben Berwick are counsel at the nonpartisan nonprofit Protect Democracy.