ASSOCIATED PRESS
David Sloss is the John A. and Elizabeth H. Sutro Professor of Law at the Santa Clara University School of Law. Views are his own.
On March 24, Attorney General William Barr sent a letter to Congress to advise key congressional leaders about “the principal conclusions reached by Special Counsel Robert S. Mueller III.” With respect to obstruction of justice, the special counsel’s report said: “while this report does not conclude that the president committed a crime, it also does not exonerate him.” However, unlike the special counsel, the attorney general 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.”
On April 18, the attorney general released a redacted version of the Mueller report to the public. Since that time, numerous commentators have carefully scrutinized the report. On May 6, a group of former federal prosecutors published a letter that contradicts the attorney general’s conclusion regarding obstruction of justice. The former federal prosecutors said “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 . . . policy against indicting a sitting president, result in multiple felony charges for obstruction of justice.” As of May 16, more than 900 former federal prosecutors have signed that letter.
In sum, hundreds of former prosecutors think the president committed a crime, the attorney general disagrees, and the special counsel has not reached a conclusion--at least not publicly. To understand the current impasse, it is helpful to review the history of special counsels.
In 1973, the Nixon Administration appointed Archibald Cox as a special prosecutor to investigate the Watergate break-in. When Cox asked the White House to hand over recordings of conversations in the Oval Office, President Nixon ordered the attorney general to fire Cox. Both the attorney general (Elliott Richardson) and the deputy attorney general (William Ruckelshaus) refused to fire Cox and resigned their positions. Ultimately, Solicitor General Robert Bork carried out the presidential order to fire Cox.
Congress enacted the Ethics in Government Act a few years later. Among other things, the Act created a new position with the title of independent counsel. The independent counsel position differs from Cox’s special prosecutor position in two key respects. First, Cox was a subordinate officer within the Department of Justice. In contrast, an independent counsel appointed under the Ethics in Government Act--such as Kenneth Starr, who investigated Bill Clinton--is outside the executive branch. Second, whereas President Nixon had the legal authority to fire Cox, President Clinton lacked the authority to fire Starr. Indeed, Congress created the independent counsel position to ensure that any person appointed to investigate alleged presidential wrongdoing was truly independent. However, the independent counsel law expired in 1999. Accordingly, Special Counsel Robert Mueller--like Archibald Cox, but unlike Kenneth Starr--is a subordinate officer within the Department of Justice (DOJ).
After the independent counsel law expired, the DOJ’s Office of Legal Counsel (OLC) issued an important legal opinion, stating that “the indictment and criminal prosecution of a sitting president would . . . violate the constitutional separation of powers.” That opinion is binding on officers within the executive branch, including Robert Mueller. Indeed, in Volume II of his report, which addressed the potential obstruction of justice charge, Special Counsel Mueller highlighted the fact that his “Office accepted OLC’s legal conclusion for the purpose of exercising prosecutorial discretion.” In other words, one reason that Robert Mueller did not charge President Trump with obstruction of justice was that--according to the settled legal opinion of the Department of Justice--subordinate executive officers do not have the legal authority to indict or prosecute a sitting president.
If Robert Mueller had been appointed as an independent counsel under the Ethics in Government Act, would he have indicted President Trump for obstruction of justice? We will never know the answer, but the Mueller Report suggests that there is ample evidence to support an obstruction of justice charge against President Trump. Indeed, the letter signed by former federal prosecutors provides an excellent summary of that evidence.
Moreover, the same OLC opinion that bars prosecution of a sitting president acknowledges the possibility of prosecution “once the president’s term is over or he is otherwise removed from office.” Therefore, if the American people elect a new president in 2020, the new administration will unquestionably have the legal authority to prosecute Donald Trump for obstruction of justice. In more than two centuries of U.S. history, there has never been a prosecution of a former president by his successor. Even so, President Trump has already departed from established presidential norms in numerous other ways. Perhaps this will be another “first” for the 45th president.