Special Counsel Robert Mueller announced his resignation on Wednesday, bringing a formal close to his investigation into Russia’s efforts to support President Donald Trump’s 2016 presidential campaign. Along the way, however, Mueller subtly undercut one of Trump’s most strident defenders — Attorney General Bill Barr.
Since ascending to the office, Barr has repeatedly attempted to downplay the possibility that Trump either criminally obstructed justice or otherwise made an effort to thwart Mueller’s investigation into Russia’s electoral interference. Among other things, Barr has suggested that the special counsel’s decision not to charge Trump with a crime was based on the fact that Mueller failed to uncover sufficient evidence that Trump committed a crime — and not because of the Justice Department’s longstanding view that charging a sitting president is unconstitutional.
In a summary of Mueller’s report that Barr released weeks before the report itself became public, Barr stated that he and then-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 they made this determination “without regard to…the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.”
Then, at a press conference shortly before a redacted version of Mueller’s report went public, Barr said that he “specifically asked” Mueller about whether Office of Legal Counsel (OLC) memos arguing that it is unconstitutional to charge a sitting president drove Mueller’s decision not to charge Trump. And Barr claimed 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.”
However, not long after Barr made this claim before the press, the report revealed it to be misleading. Mueller’s report repeatedly references the OLC memos, and explains that his office “accepted OLC’s legal conclusion for the purpose of exercising prosecutorial jurisdiction.”
Furthermore, while Barr may have decided that there was insufficient evidence that Trump committed a crime, Mueller himself gives a very different reason for the decision not to charge Trump.
Mueller emphasized this point during his Wednesday press conference announcing his resignation. “If we had confidence that the president clearly did not commit a crime, we would have said so,” said Mueller, before explaining the central role the OLC memos played in his approach to Trump.
Under long-standing department policy, a president cannot be charged with a federal crime while he’s 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 that Department of Justice. And by regulation, it was bound by that policy. Charging the president with a crime was therefore not an option we could consider.
It’s an easy-to-miss swipe at Barr’s characterization of Mueller’s report, but an important one. Though it is true that Mueller, in his own words, “did not make a determination as to whether the president did commit a crime,” the Justice Department policy against charging a sitting president played a major role in the decision not to make such a determination. Mueller’s public statements repeatedly emphasize this point, even as Barr tries to present Trump’s conduct as more innocent.
There are two important implications of Mueller’s statements. One is that, while the Justice Department may believe that it cannot charge a sitting president, the Constitution explicitly permits Congress to impeach Trump and remove him from office — although the latter is unlikely given that nearly all Senate Republicans are likely to protect Trump as zealously as Barr.
The other implication is that Trump will not be president forever. On the day Trump leaves office, the Justice Department may once again charge him with crimes.