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18 March 2015updated 07 Jun 2021 2:53pm

Former federal prosecutor: Congress has “a duty” to proceed with impeachment

By Nicky Woolf

The fallout from Attorney General Bill Barr’s testimony before the Senate Judiciary Committee last week is still making its way through America’s political and legal establishment – but it is becoming clear just how drastically Barr misled the nation over the contents of the Mueller report, especially the president’s potential obstruction of justice.

To help further understand the ramifications of the report and Barr’s handling of its release, I spoke with former federal prosecutor Kenneth McCallion, an expert in constitutional law and the author of Treason and Betrayal: The Rise and Fall of Individual 1.

New Statesman: Do you believe Barr broke the law?

McCallion: Yes, it appears that Barr lied to Congress, which is a federal offense, and a good case could also be made that he obstructed justice.

NS: Would impeachment be a good tactical decision for the Democrats at this point in the election cycle, or is there a risk it might harden Trump’s support from his base?

McC: Although commencing impeachment proceedings against Trump may entail major political risks for the Democrats, as a lawyer and constitutional expert my opinion is that the US Constitution clearly delegates to Congress the power and duty to impeach and remove a sitting president when there is substantial evidence that the president committed treason, bribery or high crimes and misdemeanors.

Evidence of Obstruction of Justice is one of the leading crimes that have triggered impeachment proceedings. The Mueller Report, volume 2, clearly lays out the evidence for a finding that Trump obstructed justice on multiple counts. As I also set forth in my book, Trump is also guilty of treason in the technical legal and constitutional sense, and “betrayal” in the more general sense in that he has sold out his country and provided “aid and comfort” to Russia, a foreign hostile power.

Congress, therefore, has a duty to proceed with impeachment hearings in view of the overwhelming evidence that Trump has committed a multitude of impeachable offenses, and it would be derelict in its duty not to do so, no matter what the political consequences.

NS: What is the evidence that Mueller believed Congress should be the ones to make the determination rather than Barr?

McC: The Mueller Report specifically mentions that he felt that he was prevented from indicting Trump due to the DOJ’s Office of Legal Counsel’s opinion (outdated and obsolete) that a sitting president should not be indicted, and then refers to the general powers of Congress. Although he is being somewhat cryptic and indirect, the only reasonable reading of the Mueller Report is that he is inferentially referring the Obstruction of Justice charges to Congress to be considered in Impeachment proceedings in the House.

NS: Why would Mueller make his intentions vague in the report, if that is the case, rather than state it plainly?

McC: I think that the vagueness of his conclusion in both the report and the later letter to Barr is a flawed and disastrous attempt to be circumspect and indirect, when what the current crisis demands was a direct statement that, yes, Trump is guilty on several counts of Obstruction of Justice, and that since the DOJ current policy is not to indict a sitting president who is a traitor and who has obstructed justice, the matter is therefore referred to Congress for appropriate action under the Impeachment Clause.

NS: What are the biggest legal jeopardies for Trump now, in the wake of the report?

McC: In addition to impeachment, it is likely that he will be indicted along with the Trump Organization by the New York State Attorney General, and will be prosecuted for Obstruction of Justice, Election Law violations relating to the Michael Cohen hush money payments once he leaves office. Congress could also pass a bill extending the statute of limitations in criminal cases against a sitting president.

NS: Why is Barr holding back the report from Congress to the extent that they are now planning to hold the DoJ in contempt? What’s his game?

McC: It is a delay game that they know they will lose in the courts, but given the high stakes, Trump wants to delay the inevitable – which is that he will have to answer in both the criminal and civil courts to serious charges, but wants to delay that date as long as possible.

NS: What were [Deputy Attorney General] Rod Rosenstein’s motivations for helping Barr ratify his decision on obstruction?

McC: There is no rational explanation, but it marks a sad politicized end to a valiant and successful effort to protect Mueller until the investigation was completed.

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