By Salvador Rizzo,\u00a0Fact Checker, May 31, 2019<\/p>\n
\u201cI\u2019ll make a few remarks about the results of our work. But beyond these few remarks, it is important that the office\u2019s written work speak for itself. \u2026 We chose those words carefully, and the work speaks for itself.\u201d<\/i><\/p>\n
\u2014 Special counsel Robert S. Mueller III, <\/b>in a statement at the Department of Justice<\/b><\/a>, May 29, 2019<\/b><\/p>\n \u201cThe report is my testimony.\u201d <\/i><\/p>\n \u2014 Mueller<\/b><\/p>\n \u201c[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\u2019s 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.\u201d <\/i><\/p>\n \u2014 Mueller<\/b><\/p>\n Now that Mueller is riding off into the sunset, he has some advice for anyone with lingering questions about President Trump\u2019s campaign and Russian election interference, obstruction of justice or the prosecutorial rules the special counsel had to follow.<\/p>\n Read the report.<\/p>\n At 448 pages, the Mueller report<\/a> requires commitment. It\u2019s 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.<\/p>\n 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\u2019s reasons for not making a decision on bringing obstruction charges against Trump are summarized over two pages.<\/p>\n 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.<\/p>\n The Mueller report is divided into two volumes. The first one covers Russia\u2019s 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\u2019s 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.<\/p>\n The second volume covers Mueller\u2019s investigation into whether Trump obstructed justice. This is where things become more complex.<\/p>\n The special counsel\u2019s office gathered substantial evidence of possible obstruction. Volume II appears to show that in at least four cases (Trump\u2019s attempt to remove Mueller, Trump\u2019s attempt to curtail the investigation, Trump\u2019s instructions to then-White House counsel Donald McGahn to deny the attempt to remove Mueller, and Trump\u2019s 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.<\/p>\n Attorney General William P. Barr has said that \u2014 regardless of the Justice Department\u2019s policy not to indict the sitting president \u2014 he and then-Deputy Attorney General Rod J. Rosenstein concluded that the report lacked evidence to support any obstruction charges.<\/p>\n The May 2017 order<\/a> appointing Mueller was signed by Rosenstein while he was the acting attorney general. It says, \u201cIf 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.\u201d<\/p>\n However, Mueller decided not to reach a decision, one way or the other, on bringing obstruction charges.<\/p>\n 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.<\/p>\n 1.<\/b> \u201cThe Office of Legal Counsel (OLC) has issued an opinion finding that \u2018the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions\u2019 in violation of \u2018the constitutional separation of powers.\u2019 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. \u00a7 515; 28 C.F.R. \u00a7 600.7(a), this Office accepted OLC\u2019s legal conclusion for the purpose of exercising prosecutorial jurisdiction.\u201d<\/p>\n<\/blockquote>\n Translation:<\/i> I\u2019m a prosecutor in the Justice Department. The special counsel regulations<\/a> say I \u201cshall comply with the rules, regulations, procedures, practices and policies of the Department of Justice.\u201d The Justice Department has a policy that prohibits the indictment of a sitting president<\/a>.<\/p>\n On May 29, Mueller restated this in his on-camera statement, noting that \u201cunder long-standing department policy, a president cannot be charged with a federal crime while he is in office.\u201d He said: \u201cThe Special Counsel\u2019s 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.\u201d<\/p>\n Barr addressed Mueller\u2019s decision in an interview with CBS News<\/a> on May 30. \u201cThe opinion says you cannot indict a president while he is in office, but he could\u2019ve reached a decision as to whether it was criminal activity,\u201d Barr said. \u201cBut he had his reasons for not doing it, which he explained and I am not going to, you know, argue about those reasons.\u201d<\/p>\n 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.<\/p>\n In a 1973 legal opinion explaining the policy, the Justice Department\u2019s Office of Legal Counsel said, \u201cThe spectacle of an indicted President still trying to serve as Chief Executive boggles the imagination.\u201d<\/p>\n 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\u2019s 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.<\/p>\n Here are two key passages<\/a> from the memo by then-Assistant Attorney General Robert G. Dixon Jr.:<\/p>\n \u201cA necessity to defend a criminal trial and to attend court in connection with it \u2026 would interfere with the President\u2019s 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 \u2026<\/p>\n \u201cTo 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.\u201d<\/p>\n In a second legal opinion, from 2000, the Office of Legal Counsel restated<\/a> 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 \u201cdramatically destabilizing effect,\u201d wrote then-Assistant Attorney General Randolph D. Moss.<\/p>\n Legal developments between 1973 and 2000 did not change this conclusion, Moss wrote. \u201cNo court has addressed this question directly, but \u2026 our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution,\u201d the memo reads.<\/p>\n 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\u2019s position or ruled on the question of whether the president can be indicted while in office.<\/p>\n Several rulings by the Supreme Court cover related issues dealing with immunity.<\/p>\n In 1882, the court said<\/a>: \u201cNo 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.\u201d<\/p>\n 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 \u201cneither 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.\u201d The court unanimously ordered Nixon to turn over secret and incriminating White House tapes. He resigned 16 days later.<\/p>\n In 1997, the Supreme Court said that \u201cthe fact that a federal court\u2019s 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,\u201d that \u201cit is also settled that the President is subject to judicial process in appropriate circumstances,\u201d and that \u201cif the Judiciary may severely burden the Executive Branch by reviewing the legality of the President\u2019s 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.\u201d In that case, Clinton v. Jones<\/i><\/a>, the court ruled that the sitting president could not postpone a civil lawsuit until he left office. That lawsuit pertained to Clinton\u2019s conduct before taking office.<\/p>\nThe Facts<\/h3>\n
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