On Monday, a long list of former federal prosecutors released a letter arguing 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 number of signatories to this letter appear to be growing by the hour. As of this writing, it includes 414 former officials.
The letter lays out multiple reasons why, in its signatories’ opinion, Trump’s behavior justifies indicting anyone other than a sitting president of the United States. One of its most damning claims comes close to the beginning of the letter.
Despite being advised by then-White House Counsel Don McGahn that he could face legal jeopardy for doing so, Trump directed McGahn on multiple occasions to fire Mueller or to gin up false conflicts of interest as a pretext for getting rid of the Special Counsel. When these acts began to come into public view, Trump made “repeated efforts to have McGahn deny the story” — going so far as to tell McGahn to write a letter “for our files” falsely denying that Trump had directed Mueller’s termination.
These two sentences are significant because they speak to Trump’s state of mind when he allegedly sought to fire Mueller. The primary federal law governing obstruction of justice is drafted broadly: As one federal appeals court explains, it “reaches all corrupt conduct capable of producing an effect that prevents justice from being duly administered, regardless of the means employed.” Yet there is an important limit on this statute. It would only apply to Trump’s actions if the government can show he acted “corruptly” when he tried to undercut Mueller.
As another federal appeals court explains, to act “corruptly” means to be “motivated by an improper purpose.”
The Mueller report, as paraphrased by the former prosecutors in the two sentences above, describes a president who was motivated by such a purpose. The sentences describe how Trump was specifically warned by an attorney that he was risking criminal liability, and that Trump sought a “pretext” to fire Mueller. And they indicate that Trump took multiple efforts to cover up his actions. All of these findings by Mueller suggest that Trump was motivated by an improper purpose.
The letter goes on to list other theories a prosecutor could rely on to charge Trump. “Directing the creation of false government records in order to prevent or discredit truthful testimony,” for example, is “unlawful.” The former prosecutors also claim that Trump engaged in witness “tampering and intimidation.”
For the time being, Trump is effectively immune from federal charges. A pair of memos by the Justice Department’s Office of Legal Counsel argue that a sitting president cannot be charged with a federal crime. And Mueller’s report explicitly states that these memos played a significant role in his decision not to charge Trump.
But Trump will not be president forever. When he does leave office, a new administration could bring charges against him if it chose to do so.