The original special prosecutor law that I co-authored was designed to prevent presidents from controlling criminal investigations into themselves. The regulations that replaced the law have the same goal — an independent and complete investigation into presidential misconduct. A special counsel’s closing report to the attorney general is intended to ensure that those goals have been met, and Robert Mueller’s report must meet that standard. Anything less would be a frontal attack on the principle that no one is above the law, including the president.
Under the regulations, Mueller must write a “report explaining the prosecution and declination decisions reached by the Special Counsel.” Mueller thus must account not just for the prosecutions he has brought, but, significantly, for the prosecutions he has not brought. That means that Mueller has to explain why he has not prosecuted President Donald Trump.
There are only two possible reasons for that decision. One is that there is sufficient evidence to indict and convict Trump, but legal obstacles block his prosecution. The other is there is insufficient evidence of criminality.
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If Mueller has found sufficient evidence to prosecute, but has identified legal barriers to doing so, he must lay out that evidence in his report so that Congress and the American people can assess the validity of any legal barrier that he asserts will prevent prosecution.
One of those obstacles might be the Office of Legal Counsel’s two memos contending — incorrectly in my view — that a president cannot be prosecuted while in office.The special counsel is bound by regulations to follow Justice Department policy — but that policy should be inapplicable if there is evidence to convict this president for conspiring with Russia to undermine a U.S. election, a conspiracy that poses an ongoing danger to our country. The same holds true if there is sufficient evidence to prosecute the president for interfering in Mueller’s investigation.
In any case, the attorney general has the power to approve an exemption from the Justice Department policy. Mueller needs to report whether he tried to obtain an exemption and what the outcome of such an effort was.
No presidential right to commit crimes
Another legal obstacle to prosecuting Trump might be the notion — advanced by Trump’s lawyers — that a president cannot commit a crime while exercising the powers of his presidency. This is what I call the ‘Nixon defense’: whatever a president does is legal. But the Nixon defense is absurd. There is nothing in the Constitution that permits a president to commit crimes with impunity. Indeed, the Constitution explicitly states that impeachment doesn’t preclude prosecution, suggesting that prosecution might cover the very same presidential acts and abuses of power that are impeachable. At the very least, if Mueller accepts the Nixon defense, he needs to explain why he believes it is valid.
On the other hand, Mueller may simply determine that there is insufficient evidence to warrant prosecution. In this unlikely case, he must explain where the evidence falls short and what he has done to try to obtain it. A blanket claim of insufficient evidence will not pass muster. Rather, Mueller must assure us that the investigation was thorough and no punches were pulled.
While there is no reason to believe that Mueller has been anything other than meticulous, he will still need to show, for example, that he interviewed former CIA director Mike Pompeo (now secretary of State) and Dan Coats, the Director of National Intelligence, who were reportedly directed by Trump to get then-FBI Director James Comey to drop his Russia investigation. He should also release the questions he submitted to Trump, and Trump’s answers.
Public needs full facts to judge president
It is particularly important that a thorough report be given to Congress and the American people because Attorney General William Barr has himself argued that they, and not the courts, should hold a president accountable for misdeeds. While I disagree because I believe the criminal justice system may also hold a president accountable, Barr has claimed that the “proper mechanism for policing the President’s” actions is “the political process — that is, the People acting either directly, or through their elected representatives in Congress.”
But neither the Congress nor the people can take corrective action without the full facts. If Barr is true to his beliefs, he must provide Congress and the public with all facts about Trump so they can carry out their accountability duties under Barr’s doctrine, whether through the ballot box or impeachment.
Barr should also understand that Congress has a role beyond impeachment. In Watergate, Congress enacted much remedial legislation in the areas of campaign finance, ethics, and providing for a special prosecutor, among other things. Now as then, Congress needs all the facts to do its job. Classified material should not be released, but for grand jury material, Barr and Mueller could petition the court for its release, which is what happened in Watergate, so that Congress can fulfill its constitutional responsibilities.
If the attorney general refuses to release the Mueller report, it would be a colossal cover-up on the order of Watergate. That cannot be permitted to happen.
Elizabeth Holtzman, a former Democratic congresswoman, Brooklyn district attorney and New York City comptroller, served on the House Judiciary Committee during the Nixon impeachment hearings.