Dear Reader,

The New Year is around the corner, and with it, the expiration of the 5-year statute of limitations for potential obstruction of justice charges against former President Trump. If you are racking your brain trying to remember what I’m referring to, that’s the crime Trump committed at the beginning of his presidency, before Impeachments I and II and the near-collapse of American democracy. With everything that has happened since, obstruction of justice seems like an old-fashioned crime, quaint, even – the kind of thing presidents used to do before they tried things like overthrowing the government. But even though Trump’s attempts to obstruct are in the rear-view mirror and we have bigger fish to fry in 2022, it’s worth revisiting his crime and considering whether it would still be worth it to hold him to account.

A quick refresher: A few months into his presidency, Trump fired then-FBI director James Comey, who was at the time overseeing an investigation into Russia’s interference in the 2016 election, and the country’s potential coordination with members of the Trump campaign. Comey’s firing came a few months after Trump tried to exact a “loyalty oath” from Comey and pressure him to back down from investigating his former national security advisor, Mike Flynn, who had lied about his contacts with the Russian ambassador. Trump’s initial rationale for firing Comey was the FBI director’s mishandling of the Hillary Clinton investigation. But the very next day, Trump appeared on national television, telling NBC’s Lester Holt in an interview that he fired Comey because of “that Russia thing.” DOJ then appointed former FBI director Robert S. Mueller III as a special counsel to investigate, inter alia, whether Trump tried to obstruct justice. Almost two years later, Mueller produced a report outlining ten potential counts of obstruction of justice, including an analysis of whether each count met the required elements of the crime. Citing DOJ’s policy against indicting a sitting president, Mueller would not opine on whether Trump should be indicted, adding only the unhelpful observation that “if [he] had confidence that the president clearly did not commit a crime, [he] would have said so.” Mueller noted that Congress could nevertheless choose to impeach Trump based on the evidence he collected, or Trump could be prosecuted after he left office. Congress, for its part, chose not to initiate impeachment proceedings against Trump based on Mueller’s report. So, here we are, four and a half years later, with Mueller’s evidence just hanging out in the breeze.

A few weeks ago, after Trump admitted publicly again that he fired Comey to ensure the survival of his presidency, I asked on Twitter why Trump had not been charged with even one count of obstruction since leaving office, given the mountain of evidence Mueller collected. I received a few thoughtful responses from lawyers and legal colleagues, which I’ll lay out here. For one, they argued, it would be hard to ensure a conviction. The suggestion here wasn’t that there wasn’t sufficient evidence to convict – after all, about 400 former federal prosecutors have argued that Mueller’s evidence was enough for the DOJ to charge Trump, which under the department’s policy requires that the evidence also be sufficient to convict. Rather, the argument was that since no underlying “crime” was uncovered, Trump would be able to create reasonable doubt in a sympathetic jury, through a narrative that the investigation was baseless and deserved to be shut down – in other words, the case wasn’t a “slam dunk” and therefore too risky to bring. Another argument was that Trump would be able to raise novel constitutional defenses, based on his Article II powers and his presidential authority to enforce the law, that would be difficult to surmount and unwise to test in court. Finally, there was an argument that prosecuting Trump and losing would look unseemly in a democracy, making it appear that DOJ was bringing a politically-motivated prosecution.

All of these arguments are compelling, and have merit. But in the spirit of acting as devil’s advocate, let me not only concede these points, but posit a counterargument: Trump should be prosecuted for obstruction, even if it’s a losing case. I suspect this will be an unpopular take, and this exercise is mostly academic, since it’s likely that, practically speaking, the obstruction of justice train has left the station. But it’s important to lay out the case, even just as food for thought, because we should understand important interests vindicated by prosecuting Trump that we lose by choosing to let the statute of limitations expire.

Let me start by acknowledging that yes, it would be hard to convict Trump for obstruction of justice. But here’s a newsflash: It would be hard to convict any former president of any crime, period. The President of the United States holds a singular place in the American consciousness, and indeed the world’s: He is larger than life, and you would be hard-pressed to find someone even in a remote village in India who does not know who the U.S. President is or have an opinion about him. Supreme Court Justice Robert Jackson highlighted the unparalleled influence of the American president in the famous Steel Seizure Case, noting that:

“Executive power has the advantage of concentration in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations. In drama, magnitude and finality, his decisions so far overshadow any others that, almost alone, he fills the public eye and ear. No other personality in public life can begin to compete with him in access to the public mind through modern methods of communications. By his prestige as head of state and his influence upon public opinion, he exerts a leverage upon those who are supposed to check and balance his power which often cancels their effectiveness.”

The president is powerful, and can always make a compelling case that he is the victim of vengeful, politically-motivated justice – and statistically, he will find someone sympathetic to him on a jury. If the bar for prosecution is a guaranteed conviction, the only guarantee is that no president will ever be prosecuted: The presidency will basically be a get-out-of-jail-free card for life, which undermines the idea that no man is above the law.

The same is true for Trump’s novel constitutional defenses. Anyone who occupies the Oval Office assumes the awesome powers of the presidency. The accretion of power by the executive branch over the years makes it almost impossible to disentangle legitimate uses of those powers from corrupt ones: Whether an exercise of a power is a crime will often turn on the president’s true motive behind it. Yes, the president has the power to ensure that “the laws be faithfully executed,” meaning that presidential interference in DOJ investigations offers defenses unique to the president and presents thorny constitutional questions. Guess what? So does, say, treason. Imagine a president who secretly offered aid and comfort to an enemy of the United States – a crime proscribed by the Constitution. Well, under Article II the president also has almost unfettered discretion in foreign affairs, including almost plenary power to “negotiate” with foreign heads of state. Should the fact that the president has a “foreign policy defense” – a defense that literally no other person charged with the same crime could assert – preclude prosecuting him for the crime of treason, simply because it’s never been tested? I think most people would argue that it shouldn’t. In fact, it’s precisely because a president can use his constitutional authority as both a sword and a shield that it’s more essential, not less, for a court to define the parameters of his powers when they are abused. We may not like the answer, but only by resolving these extreme “test cases” can we know where the law stands.

Which brings us to the last argument: Does it help or harm democracy to prosecute a former president, and lose the case? It’s worth remembering that in many, if not most, countries, it is not even possible to investigate, let alone prosecute, a head of state. In fragile democracies, attempts to hold a leader of a country to account may result in the prosecutor being arrested and jailed, or maybe “accidentally” falling out of a window. We vindicate the rule of law, and reinforce faith in our justice system, not by “winning,” but by demonstrating that the Justice Department will pursue investigations with neither fear nor favor and bring charges when they are warranted by the evidence, even when the evidence leads to the doorstep of 1600 Pennsylvania Avenue.

Underscoring these values is especially important when the crime itself is an attempt to quash an investigation and subvert justice, as it is in Trump’s case. It’s also especially important since his crime has not been accounted for in any other forum. Unlike Trump’s attempted quid-pro-quo with Ukraine, or his incitement of insurrection on January 6, Trump was never impeached for obstruction of justice. Even though Trump was not convicted or removed in either of his impeachments, the process alone served an important function: It allowed the government, as a body, to formally accuse him of a high crime and to bring the evidence for those accusations into a public proceeding. In short, there was some, if not full, accountability – not to mention a historical record and a precedent that such actions meet the standard for impeachment. By contrast, Trump has faced no accountability for his obstruction, and let’s face it: No one except a bunch of lawyers read the Mueller Report. An indictment, even on just some of the counts Mueller investigated, would provide an important official public record of his criminal conduct, and set a precedent for the future.

Obstruction of justice is the building block of criminality for the presidency. Some presidents may try to break into and burgle their political opponent’s headquarters, others might try to facilitate a foreign attack on our elections. But while the underlying crime might differ, any corrupt president will have a self-interest in preventing it from being uncovered. When we fail to make clear that such actions are a crime, we give a green light for future presidents to engage in misconduct and thwart attempts to bring them to justice. That’s why charging Trump for obstruction before the statute of limitations expires might be the most important case to make against him: If the Justice Department fails to do so, we may have more to worry about in the long run than a mere loss in court.

I rest my case.

Stay Informed,