If Trump Weren’t President, He Would Already Be Charged

Special Counsel Robert Mueller’s report is 448 pages long, full of shocking conduct and detail that has prompted non-stop discussion since it was released last week. But one thing seems indisputable from our perspective as former federal prosecutors looking at the evidence laid out by the report: If Donald Trump were not now president he would have been indicted on multiple counts of obstruction of justice. And that case would be as strong, if not stronger, than many we saw working in New York and Chicago, respectively.

Justice Department policy prohibits the prosecution of a president while in office, but nothing forbids one from being charged after leaving the White House. The Mueller Report even noted one reason to investigate the president was to preserve evidence for possible future use even though Trump can’t be charged now. And Mueller collected a stunning array of evidence that clearly shows that from 2017 until 2019, Trump engaged in a persistent pattern to try to end, or at least limit the scope of, investigations surrounding him and his family.

With so much to consider, it’s helpful to focus on four areas in particular where there are multiple reliable witnesses whose testimony corroborates one another, where some of the acts simply can’t be disputed because they occurred in plain sight, and where the evidence of corrupt intent and connection to pending proceedings are clear: (1) Trump’s efforts to fire Mueller, (2) Trump’s order to falsify evidence about that effort, (3) Trump’s efforts to limit the scope of Mueller’s investigation to exclude his conduct, and (4) Trump’s efforts to try and prevent witnesses from cooperating with investigators probing him and his campaign. While this may bear some passing similarity to mob-related and other obstruction of justice cases we worked on and saw as federal prosecutors, the conduct is more shocking and serious given that Trump is the president of the United States.

Perhaps the most shocking conduct—which would be the centerpiece of any criminal prosecution—was Trump’s repeated attempts to terminate Mueller. Despite being told 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 to try and get rid of Mueller. And then, when these acts began to come into public view, Trump made “repeated efforts to have McGahn deny the story”—i.e., to get him to lie, going so far as telling McGahn to write a letter “for our files” falsely denying that Trump had directed Mueller’s termination. (McGahn refused these orders and threatened to resign.)

Another central piece of a criminal case for obstruction against Trump are his repeated efforts to curtail at least the scope of the special counsel investigation. Trump did this in two main ways.

First, by repeatedly pressuring then-Attorney General Jeff Sessions to reverse his decision to recuse himself from the investigation so that he could control it and ensure it did not ensnare Trump. Trump said he wanted an attorney general who would “protect” him and repeatedly tried to push Sessions to do so. When that failed, Trump directed then-White House Chief of Staff Reince Priebus to fire Sessions and Priebus refused.

“ Trump’s own words would be admissible under the rules of evidence as admissions of a defendant. ”

Second, after Trump had been told by McGahn that he could not contact Sessions himself to discuss the investigation, Trump went outside the White House to send a message. He told former campaign manager and private citizen Corey Lewandowski to pass a message to Sessions to order Mueller to limit his investigation to future elections. Lewandowski tried and failed to contact Sessions in private. After a second meeting with Trump, Lewandowski passed Trump’s message to senior White House official Rick Dearborn, who Lewandowski thought would be a better messenger due to his relationship with Sessions. Dearborn did not pass along Trump’s message.

All of this conduct—trying to control and impede the investigation against him through use of his position of authority over others—is reminiscent of conduct we have seen charged against other public officials and people in powerful positions.

Some commentators noted that Trump was “saved” by the fact most of the subordinates whom Trump directed to carry out acts of obstruction of justice did not comply, like McGahn. Not so. E ven uncompleted acts of obstruction, like those described above pertaining to trying to control Mueller and Sessions, are criminal because the statute criminalizes the endeavor, not the completed act. Most criminals are just not that good at obstructing.

A second category of conduct that a prosecutor would likely charge against Trump is attempted witness tampering and intimidation. Trump tried to influence the decisions of both Michael Cohen and Paul Manafort with regard to cooperating with investigators. (Manafort initially cooperated with the special counsel before breaching his cooperation agreement by lying. Cohen cooperated with Mueller but not formally with prosecutors in the Southern District of New York, who said he was not entirely forthcoming.) Some tampering and intimidation was done in plain sight via tweets and public statements, and some was done via private messages through private attorneys.

Trump employed mob-like tactics “using inducements in the form of positive messages” to get Cohen, his former attorney, not to cooperate. For example, Trump urged Cohen publicly and privately not to “flip,” promising through counsel that Cohen would be protected as long as he did not go “rogue.” After Cohen’s office was raided by the FBI last April, Trump told Cohen to “stay strong” and lawyers connected to Trump discussed a possible pardon. One lawyer wrote to Cohen that he spoke to Trump counsel Rudy Giuliani: “Sleep well tonight[], you have friends in high places.” Another lawyer assured him that “the boss has your back,” and thanked Cohen for providing false information about illegal hush-money payments to the media. After it became clear that Cohen was cooperating, Trump turned to attacks (he’s a “rat”) and intimidation (his family will be exposed as criminals) to try and deter Cohen’s cooperation and undermine his credibility.

Similarly, Trump signaled to his former campaign chairman Manafort that a pardon was a more likely possibility if he continued not to cooperate with the government. Trump repeatedly suggested that a pardon for Manafort was possible but that he did not want Manafort to “flip” and cooperate. During Manafort’s jury trial, Trump also made repeated public statements attacking the prosecution as a “hoax” that had the potential to influence the jury. These are tactics that we have seen—and charged successfully—against mob bosses, drug kingpins, and gang leaders.

Of course, these aren’t the only acts of potential obstruction detailed in the Mueller Report. Prosecutors would weigh a strategy of whether to charge other acts detailed in the report, like asking Comey to “let Flynn go,” or firing Comey as FBI Director. While perhaps more challenging as a legal matter with respect to issues of intent, they are chargeable and would have the benefit of ensuring that this additional conduct is admitted before a jury.

Even if not charged, there are strong arguments that prosecutors would use to have much of the evidence admitted at a trial under other rules of evidence and legal theories—for example, to prove Trump’s intent as to the charged acts and to show a pattern of conduct. And Trump’s own words, whether part of the charged conduct or not, would be admissible under the rules of evidence as admissions of a defendant, words like, “I’m fucked. This is the end of my presidency,” in response to the appointment of the special counsel.

“ To look at these facts and say that a prosecutor could not probably sustain a conviction defies logic and our experience. ”

A senior Justice Department official told The Washington Post that Barr did not believe the obstruction case “was a prosecutable offense.” We simply do not see, based on the facts described above, how this statement can be true. The Justice Department Manual’s principles of federal prosecution say that a prosecutor should charge a case “if he/she believes that the person’s conduct constitutes a federal offense, and that the admissible evidence will probably [emphasis added] be sufficient to obtain and sustain a conviction.”

To look at these facts and say that a prosecutor could not probably sustain a conviction for obstruction of justice defies logic and our experience. The senior official quoted by the Post refers to what they view as “complications” in such a prosecution because “the obstruction ‘relies on multiple people in a chain all doing something,’ including Lewandowski delivering the note, Sessions being persuaded by it and then Sessions moving on the special counsel.” The official called that an “attenuated chain.” But, of course, criminal schemes often involve “attenuated chains” because the primary actor wants to distance himself from the act, knowing that it’s wrong. In fact, that is often accepted by juries as circumstantial evidence of criminal intent.

To be sure, this case, like many, would not be an easy win. It has its challenges for many reasons, legal and practical. But, the criminal case against Donald Trump, private citizen, would be one that any federal prosecutor—regardless of their politics—should proudly pursue. As federal prosecutors, we were taught to pursue obstruction of justice cases with zeal because if obstruction goes unchecked, our whole system of justice is at risk.

Right now the only thing standing between Trump and a federal courtroom is the office of the presidency.

Mimi Rocah is a distinguished criminal justice fellow at Pace University Law School and previously served as an assistant U.S. attorney for the Southern District of New York from 2001 to 2017. Renato Mariotti is a former federal prosecutor and the host of the "On Topic" podcast.