DAVID GREENE, HOST:
President Trump may have gotten away with a lot more than you or I would have; that is the assessment of more than 400 former federal prosecutors. On Monday, they circulated a letter, writing that President Trump's actions in connection with the special counsel investigation would result in multiple felony charges; that is, if the Department of Justice policy allowed a sitting president to be indicted, and it does not. One of those former federal prosecutors is Paul Rosenzweig. He was also senior counsel to Ken Starr, the independent counsel who investigated President Bill Clinton. And he joins us this morning.
Welcome to the program.
PAUL ROSENZWEIG: Thanks for having me.
GREENE: So as I understand it, the attorney general, William Barr, said the decision to not indict President Trump on obstruction charges was not about whether or not you can indict a sitting president; there just wasn't evidence there, in his mind. I know you disagree, but is it really an open-and-shut case, as you suggest in this letter?
ROSENZWEIG: I think it's as close to an open-and-shut case for charging as you can find. It - the standard in the federal principles of prosecution is whether or not a prosecutor could obtain and sustain on appeal a conviction, and as the Mueller report lays out, there's ample evidence on, in my reading, at least four - some others can say as many as eight instances - where the elements of an obstruction offense have been met. And that seems, to me, sufficient to bring to the forefront the question of whether or not the president has engaged in criminal conduct.
GREENE: But do you see Bill Barr's argument? I mean, this is, you know, an experienced lawyer who has come to a different conclusion. I mean, can you see his logic, even if you don't agree?
ROSENZWEIG: Bill Barr's arguments are the arguments of a defense attorney. For example, he said that an obstruction charge is harder to prove if there's no underlying crime, and he accepts the idea that there's no underlying collusion with Russia or conspiracy with Russia. That's true, but it's not a legal barrier to the charge. Indeed, Bill Clinton was alleged to have obstructed justice to conceal from the American people the fact that he was having a sexual relationship with an intern; an unsavory action, to be sure, but the underlying acts were not criminal. The rest of Barr's arguments are similar. They are persuasive if you're the defense attorney trying to make excuses; they are not persuasive if you're a criminal prosecutor trying to make a case.
GREENE: The existing Department of Justice policy - I mean, there's a concern that indicting a sitting president would undermine the executive branch and its ability to perform its constitutional duties. Do you see a point to that policy?
ROSENZWEIG: I do see a point to it; I disagree with it, as did Ron Rotunda, the constitutional law scholar who wrote an opinion for the Office of Independent Counsel 20 years ago, when I was there. There is a justification to the idea that the president would be distracted by a criminal charge. I wonder, however, whether it's any more distracting than a criminal investigation.
But more to the point, there's something that's really important and countervailing on the other side, which is the president should not be above the law; in America, no person should be. Everybody should be treated equally before the law, and that means being held accountable. The OLC, the Office of Legal Counsel, opinion effectively makes the president a class of one, uniquely free from criminal prosecution while he's in office.
GREENE: What are you trying to accomplish with this letter?
ROSENZWEIG: Well, for me, I'm trying to accomplish two things. The first is trying to pierce through the cloud of obfuscation that has descended in large part because of the attorney general's mistaken conclusions as to the substance of the evidence that was discovered by the Mueller report. So that's for the American public, if you will. For myself, I'm trying to be intellectually consistent. I served in the Starr investigation. I thought that what Clinton did was sufficient to warrant criminal investigation and impeachment. And it seems to me that anybody with any intellectual honesty who says that must now turn around and say the same thing about this president, irrespective of party.
GREENE: Paul Rosenzweig, senior counsel to Ken Starr, now a senior fellow at the R Street Institute.
Thanks a lot.
ROSENZWEIG: Thanks for having me. Transcript provided by NPR, Copyright NPR.