U.S. Justice Department headquarters in Washington, D.C. Photo: Diego M. Radzinschi/ALM Media

More than 400 former federal prosecutors across Republican and Democratic administrations—including some who held prominent positions in California— issued a statement Monday saying President Donald Trump would face an obstruction of justice charge were he not the sitting U.S. president.

The former prosecutors, many of whom hold posts in Big Law now as white-collar defenders, argued that Special Counsel Robert Mueller III presented sufficient evidence supporting an obstruction charge against Trump. The statement counters the conclusion by U.S. Attorney General William Barr that the evidence did not support an obstruction charge.

“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,” the former prosecutors wrote in the letter, posted to the site Medium.

Among the signatories was DOJ veteran George Hardy, the former Chief of the Criminal Division in the US Attorney's Office in San Francisco, and Chief of the Major Frauds Section in the US Attorney's Office in San Diego. The list also includes Elizabeth de la Vega, the former Chief of the San Jose Branch Office of the Northern District who went on to be Director of Pro Bono and Externship Programs at Stanford Law School, and Cheryl O'Connor, the former Deputy Chief of the Public Corruption and Civil Rights Section in the Central District who is now a partner a Jones Day. Daniel Shallman, a Covington & Burling partner in Los Angeles and former assistant U.S. attorney, also signed onto the statement.

Mueller did not make a recommendation on obstruction of justice, but his report laid out nearly a dozen instances of alleged obstructive conduct. Mueller's report pointed to a Justice Department policy, crafted by the Office of Legal Counsel, that says the prosecution of a sitting president is out of bounds. Mueller's report did not exonerate Trump, and Mueller said he would state whether Trump had not committed a crime.

Barr and his deputy, Rod Rosenstein, concluded, however, that the evidence Mueller marshaled did not amount to obstruction.

“Our determination was made without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president,” Barr wrote in a March 24 letter to Congress. Defending the president, Barr later said at a press conference at Main Justice that Trump was “frustrated and angered by a sincere belief that the investigation was undermining his presidency.”

Mueller, according to the former prosecutors, presented evidence that Trump used his authority over others to try to “control and impede” the ongoing investigation of Russia interference in the 2016 election. That evidence included unsuccessfully pressuring then-Attorney General Jeff Sessions to reverse his decision to recuse; and the president's efforts to direct then-White House Counsel Donald McGahn to fire Mueller.

Attorney General Willam Barr testifies before the Senate Judiciary Committee on the Mueller report May 1. Photo: Diego M. Radzinschi/NLJ

The former prosecutors said in their statement that “these are not matters of close professional judgment.” Defenses could be raised, the letter said, and “every accused person is presumed innocent and it is always the government's burden to prove its case beyond a reasonable doubt. But, to look at these facts and say that a prosecutor could not probably sustain a conviction for obstruction of justice — the standard set out in Principles of Federal Prosecution — runs counter to logic and our experience.”

Barr is facing pressure from U.S. House Democrats to release a full, unredacted copy of Mueller's report. The House Judiciary Committee is expected to move forward with a contempt vote Wednesday, potentially pushing the dispute to Washington's federal trial court.

Mueller, meanwhile, hasn't spoken about his work on the 448-page report. But a U.S. House Judiciary Committee member said Sunday the committee was trying to arrange a time for Mueller to testify.

 

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