On May 6, a purported "Statement by Former Federal
Prosecutors" (FFP Statement) was released to bolster assaults on
President Trump tied to the notorious Mueller Report. The statement was organized by a
Democrat-dominated anti-Trump organization called Protect Democracy. Among the rabid Never-Trumpers associated
with this group is the notorious Watergate felon and turncoat, John Dean, which
tells you all you need to know about the group that instigated this duplicitous
broadside.
Since
the media trumpeted the statement as though it were the thoughtful declaration of a latter-day Madison or Mason – rather than a partisan press release instantly endorsed
by an Internet flash mob of Justice Department pensioners – a word is in order
to place this misleading document in perspective. It is, in fact, merely the latest in a series
of similar anti-Trump productions, organized and orchestrated by Protect
Democracy – and signed by a similar cast of characters.
The
statement purports to present the opinion of 400 or more "former federal
prosecutors" – meaning DOJ
attorneys who once prosecuted criminal cases in federal courts – that the facts
presented in the Mueller Report would warrant the pursuit of multiple felony
charges against President Trump for obstruction of justice. The statement acknowledges, however, that
under the authoritative opinion of DOJ's Office of Legal Counsel (where this
writer formerly served as a Senior Counsel) a sitting President is not
indictable. Since the FFP Statement thus
represents nothing more than the ineffectual fulmination of these former feds
on a theoretical issue outside their purview, the question arises why they
considered it necessary to put in their two cents? The answer, of course, is that the
statement's purpose is political, not legal.
Protect Democracy's Legion of ex-DOJ Lawyers mobilized as quickly as a Flash Mob
A
highly experienced and credentialed Attorney General, who has ultimate
authority to determine the issue, has carefully concluded that the Mueller
Report does not provide the basis for
an obstruction prosecution against the President (wholly apart from his
constitutional immunity). Deputy
Attorney General Rod Rosenstein – hardly a Trump sympathizer -- joined him in
that conclusion. Attorney General Bill Barr
has been confirmed as Assistant Attorney General for OLC (an elite office which
is a proving ground for Supreme Court Justices), Deputy Attorney General, and twice as Attorney General. Few attorneys in U.S. Government history, if
any, can match those credentials. The
notion that this highly accomplished legal giant needs instruction from a
nondescript horde of functus officio
DOJ careerists is risible.
In
any event, the origins, integrity, and authenticity of the FFP Statement are
deeply suspect for a variety of reasons.
Initially,
the very first sentence of the FFP
Statement is false. It
declares: "We are former federal
prosecutors." But anyone who takes
the considerable trouble to locate and decipher the statement's organic list of
signatories will find that many of the signers were merely garden variety DOJ
attorneys or bureaucrats who were not prosecutors. The signers include, among many other
non-prosecutors, attorneys in the following eclectic positions: Intelligence Analyst, GS-14; Professional
Responsibilities Adviser; Assistant Director, Office of Legal Education; Health
Care Fraud Coordinator; Office of U.S. Trustee attorney; LEAA Administrator; various
generic INS lawyers and immigration judges; purely civil attorneys from the
Tax, Civil Rights, and Environment and Natural Resources Divisions; Attorney Adviser; Office of Pardon Attorney; and any number of
undistinguished characters who described themselves with nothing more revealing
than "Attorney," "Trial Attorney" or "Trial
Counsel."
How or why such defunct legal bureaucrats are deemed qualified to denigrate the determination of a remarkably accomplished and experienced Attorney General and former OLC Chief is anybody's guess. In any event, it is evident that the FEP Statement's assurance that the authenticity of signers was "vetted to the best of our ability" is meaningless.
How or why such defunct legal bureaucrats are deemed qualified to denigrate the determination of a remarkably accomplished and experienced Attorney General and former OLC Chief is anybody's guess. In any event, it is evident that the FEP Statement's assurance that the authenticity of signers was "vetted to the best of our ability" is meaningless.
The
sheer duplicity of this collective legal salvo is further underscored by the
utterly unprofessional – and suspicious -- circumstances surrounding its production,
circulation, and endorsement.
The mainstream media would have us believe that hundreds of former prosecutors each closely analyzed the Mueller Report and reached a professional determination that the President was indictable. The reality is that an eclectic digital throng of retired DOJ lawyers merely "clicked" their endorsement of the Project Democracy statement in the functional equivalent of hitting the "Like" button on a Facebook posting.
The mainstream media would have us believe that hundreds of former prosecutors each closely analyzed the Mueller Report and reached a professional determination that the President was indictable. The reality is that an eclectic digital throng of retired DOJ lawyers merely "clicked" their endorsement of the Project Democracy statement in the functional equivalent of hitting the "Like" button on a Facebook posting.
The
Mueller Report is an extremely complex and elaborate 448-page legal document
painstakingly compiled by a team of experienced attorneys following a lengthy
and arduous process. It was released on
April 24 of this year. The FFP
Statement, with its hundreds of "signers" already rounded-up, was released
only twelve days later, on May 6. It is
unclear (and undisclosed) exactly who drafted the statement; one suspects it
was attorneys associated with Protect Democracy, inasmuch as that group
"organized" the statement and orchestrated its circulation. In any case, a close and careful review of
the Mueller Report would have to be completed before drafting or endorsing the statement if even
minimal professional standards were to
be maintained.
We
are thus expected to believe that, within this tight time frame, some 300- 400
attorneys – many or most of whom are likely employed in post-government
practice – each obtained, reviewed, and analyzed the lengthy Mueller Report and
formed an independent professional conclusion that its findings warranted a
felony indictment of the President.
This
is absurd and simply not believable. It
is one thing for the Attorney General and Deputy AG -- who had the official
responsibility, resources, and staff support to do so – to review the Mueller
Report over a period of days and render their opinion that no prosecution was
warranted. They had, moreover, been
officially overseeing and monitoring the matter for months.
But
the notion that some 400 attorneys of widely varying experience, expertise, and
resources would all have the time, capacity, and legal ability to fully review
and competently dissect the voluminous Mueller Report in this very tight time frame is
risible. The review and competent
analysis of this dense, multi-faceted tome is simply not a task that would
readily be undertaken outside one's professional obligations – let alone under
such a demanding time frame.
Rather,
it is quite evident that the signers of the FFP Statement constituted a legal
flash-mob who quickly and eagerly accepted Project Democracy's invitation to
endorse the statement, at face value, with a click of their mouse.
It
is important to note in this respect that Project Democracy solicited signers
with the following indiscriminate invitation:
"If you are a former federal prosecutor and would like to add your name below, click
here." There was no requirement or
suggestion that would-be "signers" should even have read the Mueller Report, let
alone analyzed the legal questions it raised, before clicking. There can thus be little doubt that most
signers read no further than the statement itself before adding their names. In other words, the statement was supported
by hundreds of approving "clicks" rather than by hundreds of considered
legal opinions.
In
fact, the FFP Statement was merely the latest of Project Democracy's campaign
to mobilize the support of disgruntled DOJ attorney-pensioners in support of its
anti-Trump agenda. Just last December, a
suspiciously similar document was organized by that same group, this time
claiming that a suspiciously similar cohort of "400 Justice Department
alumni" had signed a statement declaring they were "disturbed"
by the President's appointment of Matthew Whitaker as Acting Attorney General
to replace the hapless Jeff Sessions.
The
anti-Whittaker protest argued that the "Constitutional process"
required the President to appoint the Senate-confirmed official next in the
line of succession – i.e., presumed anti-Trumpist Rod Rosenstein -- instead of
Whittaker. But the Supreme Court made
short work of the ex-DOJers' objections when it summarily rejected the
constitutional challenge to the Whittaker appointment.
It should
surprise no one, moreover, that there is extensive overlap between the signers
of the FFP Statement on the Mueller Report and the signers of the Whittaker
Statement (on a very quick check I confirmed that at least 1/3 of a random
sample of the FFP signers had also signed the Whittaker Statement). Could it be that Project Democracy has a
computerized master list of reliable anti-Trump "DOJ Alumni" whom it
can count upon to quickly endorse whatever partisan screed it wishes to
release? You be the judge.
Far
from a considered legal review of the Mueller Report by hundreds of former
prosecutors, the FFP Statement embodies the opinion of a Protect Democracy
advocate or some other unknown attorney which was then hastily endorsed by much
the same horde of ex-DOJ pensioners that
similarly endorsed Protect Democracy's failed objection to the Whittaker
appointment. The likelihood that all the
members of this crowd actually read and legally analyzed the Mueller Report and
its prosecutorial considerations is nil.
As
demonstrated by legal stalwarts like Alan Dershowitz, Andrew McCarthy, and
Attorney General Barr – each of whose legal acumen dwarfs that of the anonymous
scrivener who drafted the FFP Statement and the mediocrities who signed it –
the President's executive powers under Art. II of the Constitution negate any
claim that he obstructed justice in responding to the Mueller investigation's
efforts to destroy his presidency. As
Mr. McCarthy described Mr. Barr's sound basis for concluding that no obstruction
charge against the President was warranted (National Review.com, Apr. 18, 2019,
emphasis added):
"That
is why Barr laid out the facts that the president could have shut down the
investigation but did not; that he could have asserted executive privilege to
withhold information from the investigation, but instead made numerous
witnesses and well over a million documents available to the special counsel;
and that – reportedly according to Mueller – the president sincerely felt
frustrated that the investigation was unfairly undermining his presidency. The
point is that these facts so cut against
the idea of corruptly impeding an investigation that it is inconceivable the
prosecutor could prove an obstruction case beyond a reasonable doubt."
Similarly,
the distinguished Prof. Dershowitz explained that, in order for any of
President Trump's actions outlined in the Mueller Report to constitute
actionable obstruction, "The act itself has to be illegal. It can't be an act authorized under Article
II of the Constitution." When asked
whether the President's firing of FBI Director Comey, for example, could amount
to obstruction of justice, Dershowitz tersely responded: "It's not even a close case." The same goes for the other possible
obstructions fabricated by Mueller's team of Democrat and leftist
advocates.
The President had every right to exercise the full range of his Art. II powers to defend the viability of his presidency against the subversive assaults being waged against it. That is not obstruction of justice. Rather, to paraphrase Art. II, sec. 3 of the Constitution, it is merely "tak[ing] care that the Laws be faithfully executed." Even so, he refrained from imposing restraints on the Mueller inquisition that would have been within his constitutional authorities.
The President had every right to exercise the full range of his Art. II powers to defend the viability of his presidency against the subversive assaults being waged against it. That is not obstruction of justice. Rather, to paraphrase Art. II, sec. 3 of the Constitution, it is merely "tak[ing] care that the Laws be faithfully executed."
The
unknown drafter(s) and motley signers of the FFP Statement either do not
understand, or do not wish to recognize, that the President's constitutional
authority under Art. II of the Constitution is flatly incompatible with the obstruction
theory they so eagerly endorsed to undermine the Trump Presidency.
But apart
from the legal and constitutional flaws in the statement orchestrated by
Protect Democracy, the profoundly misleading characterization of its nature,
substance, and authenticity should not be allowed to pass unrefuted. Rather than presenting the considered
professional opinion of hundreds of former federal prosecutors, the statement
embodies nothing more than the reflexive, partisan endorsement of an Internet
flash-mob of eclectic attorneys who hastily responded to Protect Democracy's
click-bait.