EX-DOJ FLASH-MOB'S BOGUS LEGAL PROTEST

                  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.

                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 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 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.