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Why hundreds of former federal prosecutors disagree with Barr over Mueller report

The Mueller report continues to generate legal debate. Several hundred former federal prosecutors published a statement this week asserting that President Trump would have been charged with obstruction of justice, were he not the sitting president. William Brangham talks to Paul Rosenzweig, who worked with independent counsel Kenneth Starr on the Whitewater investigation of President Bill Clinton.

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  • Judy Woodruff:

    But first: The redacted Mueller report became public more than two weeks ago, but the discussion around it, and whether it incriminates the president, has not gone away.

    William Brangham has the latest on the fallout.

  • William Brangham:

    That's right, Judy.

    Yesterday, a group of former federal prosecutors from all over the country published a statement online, saying that, in their professional opinion, Robert Mueller's report makes it crystal clear that President Trump obstructed justice.

    It reads — quote — "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, result in multiple felony charges for obstruction of justice."

    Yesterday, the statement had more than 300 signatures. That number has nearly doubled today. And this is a bipartisan group of prosecutors. They have served in both Democratic and Republican administrations going back decades.

    One of the those people is here with me now.

    Paul Rosenzweig was an associate independent counsel under Kenneth Starr, part of the Whitewater investigation into President Bill Clinton.

    Welcome to the "NewsHour."

  • Paul Rosenzweig:

    Thanks for having me.

  • William Brangham:

    Help me understand what your intent was. Why did you sign on to this letter?

  • Paul Rosenzweig:

    Well, I can't speak for everybody else, but my personal intent was twofold.

    The first was kind of a public policy desire to cut through the summaries and the cloud of misunderstanding and, at least for myself, do my best to make sure that the American public understand what was really in the letter, that it actually did describe acts of potentially criminal misconduct, so that they could appropriately evaluate President Trump and his conduct in their own minds.

    So, that was the first part. The second part was more personal, which was I which I feel the burden of intellectual consistency, if you will. I said much the same thing about Bill Clinton 20 years ago, when I was working for Ken Starr, or thought much the same about it.

    And I — seems to me important, especially today, for lawyers to speak with consistency about the rule of law and apply it without consideration of party or partisan benefit.

  • William Brangham:

    In the letter, you cite multiple instances — you and your collective signatories cite multiple instances of what you allege is clear evidence of obstruction.

    What are some of those examples that stick out to you?

  • Paul Rosenzweig:

    Well, each of us, I'm sure, has his own favorite, if you will.

    I could name a couple off the top of my head, first and most obviously, the president's apparent direction to the White House counsel to create a full record of an earlier conversation…

  • William Brangham:

    This is Don McGahn.

  • Paul Rosenzweig:

    Don McGahn — in order to obscure and conceal the fact that he had ordered McGahn to see to Mueller's firing. At least that's how McGahn tells it.

    And then, when that became known in the press, he ordered McGahn to write a false memorandum saying that that had never happened. McGahn refused. That's an effort to obstruct justice. It's an effort to tamper with a witness' memory in a way that, for me, meets the bar of obstruction of justice.

    Other ones that we could name, for example, the apparent threat to Michael Cohen in advance of his testimony that bad things might happen to him, they might open up his parents', his family's history. That's, again, an obstructive act intended, it looks quite clear to me, to cow Mr. Cohen and to dissuade him from testifying.

    Those are two for starters.

  • William Brangham:

    You and all of the signatories of this letter argue that this is pretty crystal-clear evidence, in your mind, as former prosecutors, that you could have brought a case on these.

    Yet Robert Mueller didn't seem to say in his report that he thought these were crimes. Why not?

  • Paul Rosenzweig:

    You have to ask Mr. Mueller that.

  • William Brangham:

    We have tried.

  • Paul Rosenzweig:

    I mean, to be fair, he said, if they found evidence that exonerated the president, they would have so stated. And they did not so state.

    He alluded to difficult issues. I assume that those are issues of legality, mostly relating both to the non-indictability of presidents under the Department of Justice's policy, and also probably relating to the fact that he knew that his boss, Bill Barr, had a different legal view of what constitutes obstruction of justice for a president.

    And so he was not willing to throw a hand grenade in and have it swatted back at him by the attorney general. I think he reposed a great deal of confidence in the attorney general to treat his report fairly. And, as his own letter to the attorney general in the immediate aftermath makes clear, that confidence was not as well-founded as he thought it might be.

  • William Brangham:

    Do you think the attorney general treated Robert Mueller's work unfairly?

  • Paul Rosenzweig:

    I think that the attorney general's conclusion, as a factual matter, that there was no proof obstruction of justice is not sustainable, is simply at odds with the evidence produced in the — in volume two of this report.

    I don't see how anybody who is a prosecutor, and not trying to be the president's defense lawyer, could look at that evidence and not say that this is sufficient evidence for which a prosecutor could — and the quote is — obtain and sustain a conviction.

    And that's from the federal principle — principles of federal prosecution. And I think the evidence in at least three, four, some might say as many as eight of these instances would meet that standard.

  • William Brangham:

    Undergirding all of this has been this — as you cited, this longstanding belief in the Department of Justice that a sitting president cannot be indicted, because it would so interfere with the president's ability to do his job.

    Do you — you disagree with that finding. You think a president could be and should be indicted if the evidence warrants.

  • Paul Rosenzweig:

    That's correct. I think that that is a policy of the executive branch that quite naturally is defensive of the executive branch of government.

    I'm not surprised that that's what DOJ's view is. I think it is wrong. It is certainly extraconstitutional, which is to say there's no such immunity in the Constitution. And the framers knew how to write immunities in. They wrote a speech and debate immunity for legislators, for example.

    It is based on policy judgments alone, that it would be too distracting of the — for the president to face a criminal charge. And while I am happy to acknowledge that that's real, that a president would be…

  • William Brangham:

    It's a real distraction.

  • Paul Rosenzweig:

    Yes, it would be a real distraction. It would be for any human being.

    I also think that it ignores the countervailing value, which is that, in America at least, no man, no woman is above the law. Everybody is subject to the same rule of law. And that ought to include the president as well. Otherwise, if the DOJ is right, then the president is a unique category of one, because they have already said the vice president can be indicted, governors indictable.

    Every Cabinet minister, just fine. But the president, he's super special, and he gets to — essentially a free pass, at least while he's in office.

  • William Brangham:

    Paul Rosenzweig, thank you very much.

  • Paul Rosenzweig:

    Thanks for having me.

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