Mueller should indict Trump for obstruction before the midterms

With the Russian attack against the American midterm elections continuing aggressively and President Trump’s attack against the investigations of the Russian crime becoming frenzied and extreme, all Americans should focus intensely at this dangerous moment.

Special counsel Robert Mueller, under the authority of the regulations that govern special counsels, should indict President Trump for obstruction of justice. This indictment should occur before Sept. 15, ahead of the midterm elections.

{mosads}It is true that Justice Department policy is that a president cannot be indicted for a criminal offense. It is equally true that under rules governing special counsels, Mueller could assert that in the Trump case, there are “extraordinary circumstances” and an indictment is warranted.

If Mueller takes this course there are two possible outcomes. The attorney general could agree and approve the indictment. Or, the attorney general could disagree and decline, in which case there would be no indictment and his decision would be reported to both parties in Congress.

The Constitution does not state whether the president can be indicted. The Supreme Court, which has never ruled on the matter, will ultimately decide.

The view that a president can be indicted is held by prominent legal authorities, including Neal Katyal, the acting solicitor during the Obama administration, who drafted the rules governing special counsels for the Justice Department in 1999.  

I limit my suggestion of an indictment to obstruction and no other alleged crimes. First, evidence of obstruction from public evidence is powerful. Second, obstruction is an attempt to thwart all honest and thorough investigations of all potential crimes by Congress and investigative agencies of federal and state government.

It is powerful evidence of obstruction that President Trump has repeatedly sought to threaten, insult, bully, intimidate and pressure Attorney General Jeff Sessions regarding the Mueller investigation. This unprecedented spectacle of a president attacking his own attorney general over a pending investigation began long ago and has continued relentlessly ever since.

It is probative evidence of obstruction that the president’s lawyer, Rudy Giuliani, speaking on behalf of the president, aggressively threatened Mueller, saying, “We will unload on him like a ton of bricks.” Giuliani appears to be threatening that Trump would fire Mueller unless Mueller capitulates to his will.

It is powerful evidence of obstruction that Trump, for two full years, has fired or launched relentless attacks against leaders of every investigation into this scandal.

Trump told Preet Bharara, then the nationally respected U.S. attorney from the Southern District of New York, that he should remain in his post. Then, Trump fired him abruptly.

Trump fired Sally Yates, then the acting attorney general, shortly after she warned the White House that then-national security adviser Michael Flynn could be blackmailed by the Russians.

Trump fired then-FBI Director James Comey, who he had praised after Comey intervened very late in the 2016 election in ways that helped Trump defeat Hillary Clinton, after credible suggestions that Trump had pressured Comey to go easy on Flynn.

It is powerful evidence of obstruction that Trump, and his more extreme GOP allies in the House of Representatives, have waged relentless attacks against Deputy Attorney General Rod Rosenstein regarding the investigation of proven Russian attacks against America.

It is probative evidence of obstruction that Trump has launched aggressive, sustained and unprecedented attacks against the Justice Department and FBI in an attempt to impede their investigation and discredit their leaders.

In the articles of impeachment passed by the House Judiciary Committee against Richard Nixon, the obstruction section included both Nixon’s attacks against the institutions investigating the crime and deliberate false representations to the public designed to mislead the nation and investigators.

Article I, Section 8 of the articles of impeachment specifically included “making or causing to be made false or misleading public statements for the purpose of deceiving the people of the United States.”

It is powerful evidence of obstruction that Trump:

• dictated a false representation to describe the infamous meeting at Trump Tower;
• derides the entire investigation as a “hoax and witch hunt”;
• labels the free press that reports about the investigation “the enemy of the people”;
• launches personal attacks against Mueller and political attacks against the investigation itself to discredit them; and
• repeatedly makes false statements and accusations about major matters under investigation.

It is highly probative evidence of obstruction that Trump acts in a way that would induce suspects, witnesses and defendants to believe they could or would be pardoned for potential crimes. 

It has been credibly reported that Trump’s former lawyer John Dowd discussed the possibility of pardons with lawyers for Flynn and former Trump campaign chairman Paul Manafort, which would be grossly unacceptable at best.

Trump and Giuliani have pressured Mueller to conclude his investigations soon and threatened retaliatory action against him if he does not.

Regarding potential obstruction charges, this one subject should indeed be brought to a head before the midterm elections. This would protect all other matters still under investigation from future potential obstructions of justice.

It would give midterm voters ample time to render their electoral judgment after a comprehensive presentation of the case for obstruction is provided to the nation.

Brent Budowsky was an aide to former Sen. Lloyd Bentsen (D-Texas) and former Rep. Bill Alexander (D-Ark.), who was chief deputy majority whip of the U.S. House of Representatives. He holds an LLM in international financial law from the London School of Economics.