From the moment news broke that special counsel Robert Mueller completed his report on the Russian government’s efforts to boost President Donald Trump’s 2016 campaign, Attorney General William Barr appeared determined to protect Trump from political fallout — and to mislead reporters and the American people about what Mueller’s report said and whether Mueller suggested that Trump violated the law.
In his summary of Mueller’s report, and in subsequent statements to the press, Barr made carefully worded statements that conveyed a misleading impression that Mueller concluded that Trump’s actions were not criminal. The reality is much more complicated.
Mueller leaned heavily on a longstanding Justice Department policy against indicting a sitting president in his decision not to charge Trump. Mueller also strongly implies in his report that impeachment and removal from office may be the appropriate sanction for Trump’s actions.
The report is divided into two volumes. The first largely concerns his investigation into Russia’s efforts to impact the election and lays out why he decided to charge specific individuals with crimes. The second volume primarily concerns Trump’s efforts to thwart an investigation into Russia’s efforts to bolster Trump’s campaign. It also explains why Mueller ultimately decided not to charge Trump.
In his letter summarizing the report, Barr states that he and Deputy Attorney General Rod Rosenstein concluded that the evidence compiled by Mueller “is not sufficient to establish that the President committed an obstruction-of-justice offense,” and that this determination was made “without regard to . . . the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.” A pair of memos by the Justice Department’s Office of Legal Counsel (OLC), which lays out the basis for the policy against charging a sitting president, claims that doing so would be unconstitutional.
At a press conference on Thursday morning, Barr further downplayed the role of the OLC memos in Mueller’s decision not to charge Trump. “We specifically asked him about the OLC opinion and whether or not he was taking a position that he would have found a crime but for the existence of the OLC opinion,” Barr told the press, claiming that Mueller “was not saying that but for the OLC opinion, he would have found a crime. He made it clear that he had not made the determination that there was a crime.”
On the contrary, Mueller’s report explicitly states that the OLC’s opinions played a significant role in his decision not to charge Trump. Mueller opens the second volume of a report with a list of four “considerations that guided our obstruction-of-justice investigation.” Here is the first:
[A] traditional prosecution or declination decision entails a binary determination to initiate or decline a prosecution, but we determined not to make a traditional prosecutorial judgment. 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, this Office accepted OLC’s legal conclusion for the purpose of exercising prosecutorial jurisdiction. 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 and potentially preempt constitutional processes for addressing presidential misconduct.
Two parts of this statement (bolded above) are worth emphasizing. The first is Mueller’s explicit statement that, as a Justice Department attorney, he believed he was bound by OLC’s conclusion that an indictment of a sitting president is unconstitutional.
The second is Mueller’s somewhat cryptic reference to “constitutional processes for addressing presidential misconduct.” The primary process that the Constitution contemplates for dealing with a criminal president is impeachment, conviction, and removal from office by the Congress. Thus, Mueller appears to be suggesting that, in addition to believing that he lacked authority to charge a sitting president, such an indictment could interfere with a Congressional investigation into Trump’s actions, and into possible impeachment proceedings.
Mueller, moreover, is quite explicit about the fact that he did not conclude that Trump is innocent. “If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state,” the special counsel writes. “Based on the facts and the applicable legal standards, however, we are unable to reach that judgment.”
In a painful irony, Mueller also explains that he decided not to charge Trump due to the very same fairness concerns that should have kept Trump from becoming president in the first place. “Fairness concerns counseled against” concluding that Trump committed a crime, “when no charges can be brought.”
That’s because “the ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case.” Yet, because Trump is immune from prosecution under DOJ policy while he remains president, Trump may not “use that process to seek to clear his name.” Thus, to accuse Trump of a crime without bringing him to trial would have the effect of punishing him without affording him due process, because the mere allegation against a sitting president would carry political consequences.
The same concerns counseled against former FBI Director James Comey’s decision to publicly impugn Democratic presidential candidate Hillary Clinton’s character during the 2016 election. As I wrote at the time,
The Justice Department’s longstanding policy of not disclosing information that could influence an election is very much an extension of our constitutional structure. The Constitution imposes escalating burdens of proof on the government in order to prevent the state from bringing its force to bear against someone who has not be shown to be guilty of any crime. And the Justice Department’s policy serves this same goal.
As [former Deputy Attorneys General Jamie] Gorelick and [Larry] Thompson explain, DOJ policy exists to “avoid misuse of prosecutorial power by creating unfair innuendo to which an accused party cannot properly respond.” The New Yorker’s Jane Meyer quotes an unnamed former senior Justice Department official making a similar point. A disclosure like the one Comey made on Friday “impugns the integrity and reputation of the candidate, even though there’s no finding by a court, or in this instance even an indictment.”
Had Comey showed the same integrity — and the same respect for our constitutional structure — that Mueller showed in his report, it is likely that Hillary Clinton would have won the 2016 election and Russia’s efforts to shape that election would have failed.
In any event, Mueller’s report makes quite clear that it is not an exoneration of Trump. And, despite Barr’s attempts to blur the issue, the report relies heavily on OLC’s conclusions about the scope of a DOJ prosecutor’s constitutional authority. OLC’s conclusions were not the sole basis for Mueller’s decision not to charge Trump, but Mueller also considered such factors as due process and the need to stay out of Congress’ way if Trump should be impeached.
That’s far from good news for Mr. Trump.