Wendy Olson worked as an attorney for the Department of Justice for nearly a quarter-century.
She started as the Bush I presidency drew to an end. She worked for many years as a “line” prosecutor, making decisions about whether to file charges, taking the cases to court, seeking justice. From 2010 to 2017, she was the U.S. attorney for Idaho, appointed by President Barack Obama.
When she read the Mueller report – and especially after she heard the summary of that report by the man who was attorney general back when she first joined the DOJ, William Barr – she felt the public had been misinformed about the nature of the report, with regards to the evidence that the president obstructed justice.
“I thought it was so clear, when you look at the evidence and the things that investigation determined that Donald Trump had done, it met all the elements” of a strong case for obstruction of justice, she said this week in an interview from her Boise office. “I thought that stood in stark contrast with what William Barr said in that letter and that press conference.”
Olson is now one of more than 800 former federal prosecutors who have come together to make an extraordinary assertion: It is only the presidency itself that prevents Trump from facing felony charges for obstruction of justice.
The attorneys – including appointees by Republican and Democratic presidents, serving in administrations dating back to Carter – have signed a letter asserting that Trump’s actions to impede the investigation into Russian election meddling, as described in the Mueller report, amount to “overwhelming” evidence of obstruction.
DOJ follows a standing Office of Legal Counsel (OLC) policy that a sitting president cannot be indicted. What the prosecutors’ letter asserts is that if he were anyone else – literally any other American citizen – his conduct would have resulted in “multiple felony charges for obstruction of justice.”
“The Mueller report describes several acts that satisfy all of the elements for an obstruction charge: conduct that obstructed or attempted to obstruct the truth-finding process, as to which the evidence of corrupt intent and connection to pending proceedings is overwhelming,” the letter reads. “These include: The President’s efforts to fire Mueller and to falsify evidence about that effort; The President’s efforts to limit the scope of Mueller’s investigation to exclude his conduct; and The President’s efforts to prevent witnesses from cooperating with investigators probing him and his campaign.”
Olson is one of three former federal prosecutors from Idaho who signed the letter. Deborah Ferguson, a former assistant U.S. attorney and Clinton appointee, and Betty Richardson, a Clinton appointee as U.S. attorney, also signed it.
No former federal prosecutors from Eastern Washington have signed the letter. Attempts to reach Mike Ormsby, an Obama appointee who served as the U.S. attorney from 2010 to 2017 and is now the city attorney for Spokane, were unsuccessful this week.
James McDevitt, a Bush I appointee who was U.S. Attorney here from 2001 to 2010 and oversaw the office when it brought charges against Spokane police officer Karl Thompson in the Otto Zehm case, said this week that he has not and will not sign the letter.
“I choose not to pile on,” he said. “I’d rather be a part of the solution and not a part of the problem.”
McDevitt said that the OLC policy makes the discussion moot – “regardless of whether there was a crime or not or whether a crime was alleged or not.”
As for the question of what would happen if Trump were not president, McDevitt said it was a pointless hypothetical.
“If I were only wealthy, I’d have a bigger house,” he said. “If I would only win the lottery, I would be wealthy. How ridiculous is that?”
McDevitt said much of the current effort by congressional Democrats to obtain the complete, unredacted Mueller report is excessive and unfounded – and redactions are necessary for protecting grand jury testimony as well as sources and methods of investigators. He said there is also the fundamental question of fairness about releasing damaging information about someone against whom no crime has been charged.
For Olson and others who signed, that’s the very reason to put their opinion out there. Olson said she did not sign as a way of expressing any particular opinion about the OLC policy regarding indicting sitting presidents – but as a way of clarifying for the public the seriousness of what the Mueller report establishes the president did, and how the decision not to charge him with a crime is not a reflection of the evidence.
“William Barr was not as straightforward as the evidence warranted,” she said.
Paul Rosenzweig, a senior counsel to Kenneth Starr in the Whitewater investigation and former deputy assistant secretary of Homeland Security in the Bush II administration, wrote a column in USA Today in which he argued that the OLC opinion stands in stark contrast with the intentions of the framers’ that no person – not even the president – was above the law.
And he cites the president’s increasing contempt for Congress’ oversight authority and other checks and balances as a reason for further urgency.
“Increasingly, the president acts as if the law does not apply to him,” Rosenzweig wrote. “Every aspect of American history rejects that idea. We had a revolution to overthrow the idea of a kingly prerogative. In signing the letter, many of us were making the point that even official acts, if done for corrupt motives, ought to be subject to prosecutorial scrutiny. As the Watergate prosecutors put it, for them ‘to shirk from an appropriate expression of our honest assessment of the evidence of the president’s guilt would not only be a departure from our responsibilities but a dangerous precedent damaging to the rule of law.’ ”
These are extraordinary assertions for extraordinary times. The intensely counterfactual speech emerging continually from the White House and its emissaries is a crisis. No country built on self-governance can function when lies and misinformation, to say nothing of outright criminality, flood the public square daily.
The former prosecutors who signed that letter – a long list that is getting longer – are heroes in the effort to stem the flood.