The Rappaport Center for Law and Public Policy at Boston College Law School: After the Mueller Report: The AG, White House, and Congress–A Constitutional Crisis?

By: James F. McHugh

Frank Figliuzzi, a former FBI Assistant Director for Counterintelligence, believes that President Trump’s recent suggestion that he might accept a foreign government’s derogatory information about one of his political opponents without telling the FBI was truly dangerous.

During a panel discussion last month at Boston College Law School’s Rappaport Center for Law & Public Policy, Figliuzzi said that the President’s statement likely “lit up switchboards around the world” and set up a huge vulnerability that undoubtedly will be tested during the next election season. Testing of that sort has happened before, according to Figliuzzi. What is vastly different now is the advertised level of receptivity to foreign advances. Figliuzzi was joined on the panel by Chuck Rosenberg, former United States Attorney for the Eastern District of Virginia and the Southern District of Texas who also is a former Chief of Staff to FBI director James Comey, by Joyce Vance, a professor at the University of Alabama Law School and former United States Attorney for the Northern District of Alabama and by Michael Sullivan former United States Attorney for the District of Massachusetts and the former director of the Drug Enforcement Agency.

Their lively, hour-long discussion focused on the Mueller Report and can be found here.

All four agreed that the Report laid out clear evidence that the Russian government had engaged in “sweeping and systematic” interference in the 2016 election. That interference was not so much designed to assist the campaign of now President Trump as it was to disrupt the electoral process and create mistrust about the accuracy of its results. The panelists generally agreed that mistrust of that kind can have profound and lasting results that range from immediate mistrust about who won a specific election to enormous downstream problems if it turns out that a particular interference effort actually did alter an election result.When the conversation turned to obstruction of justice, which is covered in the second half of the Report, the panelists agreed that a Justice Department Office of Legal Counsel policy memorandum prohibited charging a sitting President with obstruction or any other crime while he or she remains in office. Sullivan thought it was improper for Mueller to investigate an issue that he had no power to prosecute.

The others disagreed but believed that the OLC policy was appropriate because allowing prosecutions of the sitting President while in office would have a hugely adverse impact on his ability to carry out his or her official responsibilities. All four panelists were in general agreement that the Mueller report was both thorough and thoughtfully done. Sullivan, however, said that reading the report was for him like watching a two-hour movie and agreeing with everything but the last two minutes. While fully satisfied with the report, Figliuzzi thought that a stand-alone 400-page report did not serve the public well in the age of Twitter when so many people have become accustomed to receiving information in short, highly digestible, packets devoid of nuance and detail.The panel discussion and ensuing audience questions reflected a substantial concern about how the well the rule of law is faring in  the controversies that surround us today.

Both Rosenberg and Vance forcefully articulated their belief that members of the bar and non-lawyers who were keenly aware of that rule’s importance had to take the lead in conversations about acts and omissions of governmental officials that seemed to ignore the rule of law’s central role in preserving American democracy. Most forcefully, Vance said that silence on the issue from the American Bar Association was “shameful,” for it has a moral constitutional voice and should be wholly unafraid to use it. 

Beyond its immediate focus on the Mueller report, the discussion was another call for action by the legal profession and its leaders at a time when the rule of law is facing daily threats. In a calm and deliberate fashion, the thoughtful panelists traded sometimes conflicting views but united on the importance of the fact-based narrative and conclusions the Report contains. They united as well on the leadership lawyers must display in ensuring that fact-based assessments of attacks on our democratic system and the rule of law are not overwhelmed by those for whom the rule of law is simply a set of inconvenient barriers in the path to predetermined ends.