Afterword by Norman Eisen and E. Danya Perry
As this volume goes to press, the country continues to deal with one of the core themes this book has taken on: Donald Trump’s sense of impunity and his utter disregard for the rule of law.
In August 2022, investigators searched Mar-a-Lago—Mr. Trump’s Florida residence and private club—pursuant to a warrant signed by a federal magistrate judge. Those investigators recovered items that alarmed us to a degree only a fraction less than if bomb-grade uranium were found on the property. Highly classified documents were recovered, including many marked as Top Secret/SCI, “Sensitive Compartmented Information”—some of the most closely-held secrets in our nation’s intelligence system. In our former roles as a United States Ambassador and as a federal prosecutor, we gained an appreciation for the gravity of mishandling such files. Those documents have the potential to identify intelligence community sources and operations. Mr. Trump’s recklessness in taking and improperly storing these items has the potential to damage our country’s national security and intelligence capabilities in ways most of us cannot even imagine.
As we write in September 2022, the DOJ’s handling of its investigation under Attorney General Merrick Garland has been consistent with the law, precedent, and its own institutional norms. As Cohen writes about in this book, this stands in contrast to the disregard for the rule of law betrayed by Mr. Trump and former Attorney General William Barr, and to their abuse of the criminal justice system. Aware of the likely incendiary ramifications of any public action by the DOJ against Mr. Trump, Mr. Garland—and the Executive Branch generally—gave the former president every opportunity to avoid criminal consequences. Ever since Mr. Trump left the White House in early 2021, the National Archives and Records Administration attempted to arrange the return of what it believed were missing records. In January 2022, Mr. Trump returned fifteen boxes containing 184 unique documents with classification markings. Those were haphazardly mixed with miscellaneous other items, including newspapers, magazines, and photos.
The FBI subsequently obtained evidence that many additional boxes remained at Mar-a-Lago that likely contained classified material. In May 2022, Mr. Trump’s counsel accepted service of a DOJ subpoena demanding production of any remaining classified documents. If Mr. Trump were to have complied at this stage of the investigation, no further action likely would have been taken—despite the grave harm Mr. Trump already had done to our country’s security capabilities. Instead, several weeks later, Mr. Trump produced a single Redweld envelope of additional material along with a certification from his counsel that “a diligent search” had been performed and that no further documents remained. That woefully deficient production led directly to the warrant and the search of Mar-a-Lago.
During the search, the government recovered thirteen more boxes containing over 100 classified documents. It appears that either a diligent search had not been performed or Mr. Trump or others willfully refused to relinquish these highly sensitive materials. In either case, Mr. Trump’s continued intransigence suggests the possibility of a criminal prosecution.
It is worth noting that the Attorney General likely wanted to do everything possible to avoid both a search warrant and a criminal indictment of Mr. Trump. Mr. Garland has attempted to restore the DOJ’s stature and credibility, in part by avoiding the appearance of any political influence in the Department’s operations and charging decisions. Rather than being the political “witch hunt” Mr. Trump repeatedly decries, the investigation has instead been a model of restraint and caution. Time and again, the DOJ tried to give Mr. Trump an out. In a characteristically contemptuous response that by now will be familiar to readers of this book, Mr. Trump repeatedly refused to take it. If an indictment is filed, it will in fact demonstrate the DOJ’s commitment to the rule of law over politics.
Compare that with the DOJ as it existed under Mr. Barr—an institution decidedly less concerned with the rule of law. Mr. Barr was appointed in early 2019, at the tail-end of the investigation by Special Counsel Robert Mueller. Prior to his appointment, Mr. Barr had publicly described the investigation concerning possible obstruction of justice by Mr. Trump as “asinine” and said it risked “taking on the look of an entirely political operation to overthrow the president.” Those comments were made during the earliest stages of Mr. Mueller’s investigation, long before Mr. Barr knew what evidence the Special Counsel had uncovered.
Since this book went to press, we have learned that Mr. Barr took extraordinary steps after assuming office to protect then-President Trump. Shortly before the Mueller Report was released, Mr. Barr sent what he described as its “principal conclusions” to Congress. Mr. Barr accurately reported that the Special Counsel had concluded that it was outside his purview to determine whether Mr. Trump should ultimately be prosecuted for obstruction of justice: quoting one of the Report’s most consequential lines, the summary stated, “while this report does not conclude that the President committed a crime, it also does not exonerate him.”
Nevertheless, Mr. Barr decided to announce his own office’s determination that Mr. Trump had not committed any crime. According to Mr. Barr, no crime had been committed because “no actions that, in our judgment, constitute obstructive conduct, had a nexus to a pending or contemplated proceeding, and were done with corrupt intent.”
Prior to the announcement, two of the most senior members of the DOJ authored a memo analyzing Mr. Trump’s actions that were detailed in the Report. It served as the legal justification for Mr. Barr’s summary to Congress. That memo only recently has been made public. Because of the seniority of the authors, it is likely that the memo was drafted at the direction of, and perhaps also with input from, Mr. Barr himself. At any rate, he signed it, agreeing with its conclusions.
The memo is further confirmation of Mr. Barr’s dishonesty in connection with the Mueller Report, as has been noted by two federal District Court judges, a Republican appointee and a Democratic one. Perhaps the most egregious aspect of the memo is its suggestion that prosecution for obstruction is appropriate only if the conduct at issue involved “(i) inherently wrongful acts to destroy evidence, to create false evidence, or to tamper with witnesses or jurors, and (ii) an effort to prevent the investigation or punishment of a separate, underlying crime.”
You don’t need to be a former prosecutor to understand how wrong this is. The logic of the memo suggests that any person who successfully obstructs justice cannot be charged with obstruction because the proof of the underlying crime would be unavailable. Even at the time the memo was drafted, that was an incorrect interpretation of the law—and prior cases had indeed been prosecuted where proof of the underlying crime was not established. (Martha Stewart’s conviction is one of the more high-profile examples of this phenomenon).
Moreover, Special Counsel Robert Mueller did find compelling evidence of efforts by Mr. Trump to create false documents and to tamper with witnesses. For example, Mr. Trump’s pattern of obstruction included urging his own White House counsel to create a false document relating to the Mueller investigation—and his witness intimidation included targeting none other than the author of this book, Michael Cohen.
The contrast between the two attorneys general’s treatment of Mr. Trump could not be more stark. Whereas Mr. Garland has taken steps to avoid political considerations and to hold Mr. Trump accountable, Mr. Barr appears to have deliberately misconstrued the law to insulate Mr. Trump from accountability for political reasons.
These events are not unrelated. It is this type of enabling behavior by Mr. Barr that helped create the sense of impunity that ultimately required the execution of the search warrant at Mar-a-Lago. There are chapters in that narrative yet to be written, but we will see if all of this results—finally—in the prosecution of the former president. However this latest in a very long series of Trump scandals turns out, it serves as a reminder of the danger a potential reelection of Mr. Trump presents to the country: the specter of a President above the law.
Norman Eisen was an ambassador and ethics czar for President Barack Obama and counsel to the House Judiciary Committee in Trump’s first impeachment. He first met Michael Cohen when he was investigating impeachment and is a frequent guest on Mr. Cohen’s podcast, Mea Culpa. E. Danya Perry is a co-founder and attorney at Perry Guha LLP in New York, as well as a former federal prosecutor in the Southern District of New York and New York State Deputy Attorney General. Danya represented Mr. Cohen in his successful habeas corpus complaint against William Barr and others after Mr. Cohen was unlawfully remanded to federal custody in violation of his First Amendment rights.