“Trump, Mueller and obstruction of justice”, The Washington Post
By Salvador Rizzo, Fact Checker, May 31, 2019
“I’ll make a few remarks about the results of our work. But beyond these few remarks, it is important that the office’s written work speak for itself. … We chose those words carefully, and the work speaks for itself.”
— Special counsel Robert S. Mueller III, in a statement at the Department of Justice, May 29, 2019
“The report is my testimony.”
— Mueller
“[The report] explains that under long-standing department policy, a president cannot be charged with a federal crime while he is in office. That is unconstitutional. Even if the charge is kept under seal and hidden from public view, that, too, is prohibited. The Special Counsel’s Office is part of the Department of Justice and by regulation, it was bound by that department policy. Charging the president with a crime was therefore not an option we could consider.”
— Mueller
Now that Mueller is riding off into the sunset, he has some advice for anyone with lingering questions about President Trump’s campaign and Russian election interference, obstruction of justice or the prosecutorial rules the special counsel had to follow.
Read the report.
At 448 pages, the Mueller report requires commitment. It’s a legal document studded with redactions, acronyms and footnotes, with a cast of characters in the hundreds. The report offers complex answers to thorny questions and leaves some blanks.
That said, a gripping narrative unfolds in plain English. And for those who want to get down to brass tacks, Mueller says the report is summarized accurately in the introductions and executive summaries. (They span a comparatively breezy 18 pages.) Drilling down even more, Mueller’s reasons for not making a decision on bringing obstruction charges against Trump are summarized over two pages.
As a reader service, we will map out those reasons and some of the other issues stirring public debate, including the Justice Department policy Mueller followed, which bars the indictment of a sitting president.
The Facts
The Mueller report is divided into two volumes. The first one covers Russia’s interference in the 2016 presidential election, a digital espionage and propaganda operation meant to help Trump win, damage Hillary Clinton and undermine confidence in U.S. democracy. The report concluded that the Trump campaign welcomed Russia’s help and sought to exploit it, but there was not enough evidence to bring charges that members of the campaign conspired with Russian government operatives.
The second volume covers Mueller’s investigation into whether Trump obstructed justice. This is where things become more complex.
The special counsel’s office gathered substantial evidence of possible obstruction. Volume II appears to show that in at least four cases (Trump’s attempt to remove Mueller, Trump’s attempt to curtail the investigation, Trump’s instructions to then-White House counsel Donald McGahn to deny the attempt to remove Mueller, and Trump’s remarks raising the possibility of a pardon for former campaign chairman Paul Manafort), the president met all the elements of an obstruction offense under federal law.
Attorney General William P. Barr has said that — regardless of the Justice Department’s policy not to indict the sitting president — he and then-Deputy Attorney General Rod J. Rosenstein concluded that the report lacked evidence to support any obstruction charges.
The May 2017 order appointing Mueller was signed by Rosenstein while he was the acting attorney general. It says, “If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters.”
However, Mueller decided not to reach a decision, one way or the other, on bringing obstruction charges.
By our count, Mueller listed six reasons he did not make a traditional up-or-down prosecutorial decision on whether to bring criminal charges against Trump. Those reasons appear in the first two pages of Volume II, and none of them involve a lack of evidence.
1. “The Office of Legal Counsel (OLC) has issued an opinion finding that ‘the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions’ in violation of ‘the constitutional separation of powers.’ Given the role of the Special Counsel as an attorney in the Department of Justice and the framework of the Special Counsel regulations, see 28 U.S.C. § 515; 28 C.F.R. § 600.7(a), this Office accepted OLC’s legal conclusion for the purpose of exercising prosecutorial jurisdiction.”
Translation: I’m a prosecutor in the Justice Department. The special counsel regulations say I “shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice.” The Justice Department has a policy that prohibits the indictment of a sitting president.
On May 29, Mueller restated this in his on-camera statement, noting that “under long-standing department policy, a president cannot be charged with a federal crime while he is in office.” He said: “The Special Counsel’s Office is part of the Department of Justice and, by regulation, it was bound by that department policy. Charging the president with a crime was therefore not an option we could consider.”
Barr addressed Mueller’s decision in an interview with CBS News on May 30. “The opinion says you cannot indict a president while he is in office, but he could’ve reached a decision as to whether it was criminal activity,” Barr said. “But he had his reasons for not doing it, which he explained and I am not going to, you know, argue about those reasons.”
The Justice Department policy at issue was adopted in 1973 and reaffirmed in 2000 during the Nixon and Clinton administrations, respectively, amid the Watergate and Monica Lewinsky scandals.
In a 1973 legal opinion explaining the policy, the Justice Department’s Office of Legal Counsel said, “The spectacle of an indicted President still trying to serve as Chief Executive boggles the imagination.”
The OLC opinion explained that the text of the Constitution provides some immunity from prosecution to lawmakers but says nothing about the president being immune. However, the OLC opinion concluded that the president’s powers and responsibilities were so vast and important that an indictment would pose too many risks to the proper functioning of government, making criminal charges against the sitting president implicitly unconstitutional.
Here are two key passages from the memo by then-Assistant Attorney General Robert G. Dixon Jr.:
“A necessity to defend a criminal trial and to attend court in connection with it … would interfere with the President’s unique official duties, most of which cannot be performed by anyone else. It might be suggested that the same is true with the defense of impeachment proceedings; but this is a risk expressly contemplated by the Constitution …
“To wound him by a criminal proceeding is to hamstring the operation of the whole governmental apparatus, both in foreign and domestic affairs. It is not to be forgotten that the modern Presidency, under whatever party, has had to assume a leadership role undreamed of in the eighteenth and early nineteenth centuries.”
In a second legal opinion, from 2000, the Office of Legal Counsel restated its view that the text of the Constitution does not give the president immunity from prosecution but that the powers of the presidency are so vast and important as to bar the indictment of a sitting chief executive. An indictment or jury verdict would have a “dramatically destabilizing effect,” wrote then-Assistant Attorney General Randolph D. Moss.
Legal developments between 1973 and 2000 did not change this conclusion, Moss wrote. “No court has addressed this question directly, but … our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution,” the memo reads.
The Supreme Court, not the Justice Department, has the last word on what is unconstitutional, but this debate has never reached the justices. As Moss indicated, the court has never endorsed the OLC’s position or ruled on the question of whether the president can be indicted while in office.
Several rulings by the Supreme Court cover related issues dealing with immunity.
In 1882, the court said: “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.”
In 1974, in a case in which a grand jury had named President Richard M. Nixon an unindicted co-conspirator, the Supreme Court said that “neither the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” The court unanimously ordered Nixon to turn over secret and incriminating White House tapes. He resigned 16 days later.
In 1997, the Supreme Court said that “the fact that a federal court’s exercise of its traditional Article III jurisdiction may significantly burden the time and attention of the Chief Executive is not sufficient to establish a violation of the Constitution,” that “it is also settled that the President is subject to judicial process in appropriate circumstances,” and that “if the Judiciary may severely burden the Executive Branch by reviewing the legality of the President’s official conduct, and if it may direct appropriate process to the President himself, it must follow that the federal courts have power to determine the legality of his unofficial conduct.” In that case, Clinton v. Jones, the court ruled that the sitting president could not postpone a civil lawsuit until he left office. That lawsuit pertained to Clinton’s conduct before taking office.
None of this disputes the OLC’s rationale for barring criminal charges against a sitting president, but these court rulings — all three of them cited by Mueller in the closing passages of his report — in some way or another say the president is not above the law or remains subject to judicial proceedings in “appropriate circumstances.”
Why did Mueller slog through this obstruction probe if he could never bring charges? The report says: “While the OLC opinion concludes that a sitting President may not be prosecuted, it recognizes that a criminal investigation during the President’s term is permissible. The OLC opinion also recognizes that a President does not have immunity after he leaves office. And if individuals other than the President committed an obstruction offense, they may be prosecuted at this time. Given those considerations, the facts known to us, and the strong public interest in safeguarding the integrity of the criminal justice system, we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.”
2. “And apart from OLC’s constitutional view, we recognized that a federal criminal accusation against a sitting President would place burdens on the President’s capacity to govern.”
Translation: It’s not just the OLC’s opinion. We, the attorneys in the special counsel’s office, “recognized that a federal criminal accusation against a sitting President would place burdens on the President’s capacity to govern.”
3. “[W]e recognized that a federal criminal accusation against a sitting President would … potentially preempt constitutional processes for addressing presidential misconduct.”
Translation: We didn’t want to get in the way of potential impeachment proceedings.
The Mueller report does not make an explicit recommendation to Congress on impeachment, but the language above is definitely suggestive.
Trump’s attorneys argued that the president could not obstruct justice by exercising his constitutional authority to fire FBI Director James B. Comey and close investigations. Mueller rejected that argument in a series of strongly worded passages, stating that, as a general matter, federal laws on obstruction of justice apply to a president using his powers corruptly.
The report says: “With respect to whether the President can be found to have obstructed justice by exercising his powers under Article II of the Constitution, we concluded that Congress has authority to prohibit a President’s corrupt use of his authority in order to protect the integrity of the administration of justice. . . .
“The conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.”
On May 29, Mueller said: “The matters we investigated were of paramount importance. It was critical for us to obtain full and accurate information from every person we questioned. When a subject of an investigation obstructs that investigation or lies to investigators, it strikes at the core of their government’s effort to find the truth and hold wrongdoers accountable. . . . And as set forth in the report, after that investigation, if we had had confidence that the president clearly did not commit a crime, we would have said so.”
Mueller also said on camera that the OLC opinion “says that the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.”
Should all of this, plus the evidence in the report, be interpreted as a suggestion that Congress impeach Trump? Should it be taken as an argument that the OLC policy not to indict the sitting president is wrong? Is Mueller saying Trump should be prosecuted after leaving office?
We sent questions to the (now defunct) special counsel’s office and the Justice Department but did not receive answers.
“Mr. Mueller has resigned and the Special Counsel’s Office is closed, so I no longer serve as the office spokesman,” said Peter Carr, the former spokesman for the special counsel. “Please refer to Mr. Mueller’s statement yesterday and the office’s report.”
4. “[W]e considered whether to evaluate the conduct we investigated under the Justice Manual standards governing prosecution and declination decisions, but we determined not to apply an approach that could potentially result in a judgment that the President committed crimes. The threshold step under the Justice Manual standards is to assess whether a person’s conduct ‘constitutes a federal offense.’ … Fairness concerns counseled against potentially reaching that judgment when no charges can be brought.”
Translation: It would be unfair to accuse the president of a crime because he would be unable to get his day in court.
Criminal defendants have a constitutional right to challenge the evidence against them in court.
“Beyond department policy, we were guided by principles of fairness,” Mueller said May 29. “It would be unfair to potentially accuse somebody of a crime when there can be no court resolution of the actual charge.”
(We note that Mueller nevertheless stated on camera that “if we had had confidence that the president clearly did not commit a crime, we would have said so,” and made nearly identical statements in his report.)
5. “The concerns about the fairness of such a determination would be heightened in the case of a sitting President, where a federal prosecutor’s accusation of a crime, even in an internal report, could carry consequences that extend beyond the realm of criminal justice. OLC noted similar concerns about sealed indictments. Even if an indictment were sealed during the President’s term, OLC reasoned, ‘it would be very difficult to preserve [an indictment’s] secrecy,’ and if an indictment became public, ‘[t]he stigma and opprobrium’ could imperil the President’s ability to govern.”
Translation: Accusing the president of a crime could have consequences “beyond the realm of criminal justice.” It would be unfair to accuse the president of a crime even in a confidential and internal report to the attorney general, or in a sealed indictment, because such documents might become public and complicate the president’s ability to govern.
“Even if the charge is kept under seal and hidden from public view, that, too, is prohibited” under Justice Department policy, Mueller said May 29.
6. “[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”
Translation: I’m not making an up-or-down decision on bringing criminal charges because, on one hand, look at all the reasons above, and on the other hand, look at all this evidence of obstruction.