Perhaps the most surprising takeaway from the House Judiciary Committee’s first hearing about the Mueller report and obstruction of justice was the utterly pathetic defense mounted by committee Republicans through their witness, John Malcolm of the Heritage Foundation. Among other things, Malcolm called President Donald Trump’s conduct, as outlined in the Mueller report, “impulsive, intemperate, and ill-advised.” If his testimony and arguments represent the strongest case Republicans can make for Trump, the president has good reason to fear impeachment proceedings.
Does the Mueller report lay out substantial evidence that President Trump obstructed justice? That was the central issue of the hearing. The strongest support that Malcolm could muster for Attorney General William Barr’s determination that Trump did not commit obstruction of justice was to say that was “eminently reasonable.” That’s not the kind of ringing endorsement one would expect from the Republicans' star witness, whose only job was to support Barr’s determination.
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On the flip side, over 1,000 former federal prosecutors have declared unequivocally that it is not a “close professional judgment” whether Trump could be charged with obstruction (he could), and that it “runs counter to logic and … experience” to say otherwise.
As former U.S. attorney Joyce White Vance testified at the hearing, the evidence is "not equivocal," and the decision to charge Trump would not even be a “close call” but for his status as sitting president. And former U.S. attorney Barbara McQuade concluded that the “conduct described in the report constitutes multiple crimes of obstruction of justice, supported by evidence of guilt beyond a reasonable doubt” and if “anyone other than a sitting president had committed this conduct, that person would be charged with crimes.”
Barr obstruction finding doesn't stand up
Why is Malcolm so wishy-washy on the ultimate question of obstruction in contrast with the former federal prosecutors? Because Barr’s “no obstruction” conclusion, which Malcolm was tasked with defending, simply cannot stand up against the facts.
Barr’s primary defense of his counterfactual “no obstruction” finding has been that it’s hard to prove the necessary element of corrupt intent when no underlying crime has been established. But, as Malcolm conceded at the hearing, “it is possible for an individual to commit the crime of obstruction of justice to impede an investigation even when he did not commit the underlying offense that is being investigated."
Famous examples of defendants who have been charged with obstruction or similar offenses without an underlying crime include Martha Stewart (who was convicted of obstruction and lying to investigators but no underlying crime), Vice President Dick Cheney's former Chief of Staff Scooter Libby (who was charged and convicted for obstruction, perjury and false statements but later pardoned by Trump), and Roger Stone (whom special counsel Robert Mueller has charged with perjury but not with a separate crime underlying his allegedly false testimony).
Even outside the criminal realm, President Bill Clinton was impeached on obstruction and perjury charges without any separate underlying crime. Indeed, Barr’s own Justice Department recently indicted an FBI contractor on obstruction charges but no underlying offense.
Trump's 'nefarious activities' were obvious
And, as even Malcolm stated in his testimony: “When someone destroys or falsifies evidence ... proof that the defendant acted with a corrupt intent is relatively straightforward.” Well, that’s exactly what Trump did. Several of the 10 acts that Mueller laid out as to Trump’s possible obstruction included just this sort of conduct, such as trying to get White House counsel Don McGahn to fire the special counsel, and then directing McGahn to lie about and create a false record about it.
Malcolm also tried to argue that corrupt intent would be hard to prove vis-a-vis Trump because, unlike most people who obstruct justice, he didn’t engage “in other nefarious activities, such as destroying evidence, suborning perjury, bribing witnesses, or threatening them.”
That is simply untrue.
According to Mueller, Trump repeatedly tried to dissuade witnesses from cooperating or testifying by dangling the possibility of pardons (also known as a bribe), encouraged witnesses such as McGahn and deputy national security adviser K.T. McFarland to lie, used threats and intimidation toward his former personal attorney Michael Cohen when it was clear he was cooperating, refused himself to be questioned under oath, and gave misleading written answers.
Hold presidents accountable in Congress
Saddled with this factually inadequate defense to obstruction of justice, Malcolm, like Barr, was essentially forced to admit the real rationale here for not holding Trump accountable: Because he is the president, “some laws apply differently to him and some don’t apply at all.”
Malcolm here parroted the dramatic legal position that Barr espoused in his unsolicited memo to the Department of Justice before his nomination as attorney general, in which he argued that Mueller’s “obstruction theory is fatally misconceived,” and that “there is no legal prohibition — as opposed to a political constraint — against the president's acting on a matter in which he has a personal stake.”
First, the Barr-Malcolm view effectively makes the president a king, unaccountable for acts that would be criminal if committed by any other person. Second, even under Barr’s own formulation, impeachment is entirely distinct from criminal prosecution. So even if Trump can’t be held accountable in a criminal court because of his status as president (a shocking position with which most voters disagree), he can and should be held accountable through impeachment.
Malcolm and Barr can twist the law and brush by the facts all they want. But ultimately in our system, no person — including the president of the United States — should be above the law.
Mimi Rocah, a former federal prosecutor, is an MSNBC/NBC legal analyst. Elie Honig, a former federal and state prosecutor, is a CNN legal analyst and Rutgers University scholar. Follow them on Twitter: @mimirocah1 and @eliehonig
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This article originally appeared on USA TODAY: Republican attempts to defend Trump and Barr’s 'no obstruction' decree are pathetic