Robert Mueller was in a quandary. On the one hand, qualified legal opinion prevented him from prosecuting a sitting President for criminal acts. On the other hand, his investigation had uncovered compelling and substantial evidence that the President had sought to obstruct justice and tamper with witnesses in multiple federal investigations into Russian interference in the 2016 US elections. Even determining that a crime had been committed could potentially weaken a future case against the President because it could be argued that the President was unfairly slandered when there was no official venue for him to clear his name or defend his integrity. Mueller therefore did the only thing he could do. He reported the facts and evidence in his investigation into obstruction of justice by the President without drawing a conclusion about whether his actions constitute a crime.
Mueller offers four reasons for conducting a thorough investigation without prosecuting the President or even determining whether he committed crimes.
- The Office of Legal Counsel (OLC) in the Justice Department issued an opinion that a sitting President could not be prosecuted because it would undermine his ability to fulfill the duties of his office. Since Mueller’s investigation was for the Department of Justice, he chose to abide by that opinion. The Constitutional duty of determining whether the President committed crimes and prosecuting them falls on the Congress, with the House of Representatives bringing articles of impeachment and the Senate acting as a judicial body for the trial.
- The OLC’s opinion still permits an investigation, and Mueller had broad authority under the Department of Justice to pursue his investigation wherever the evidence might lead. Since the OLC’s opinion applies only to a sitting President, charges may still be brought once he is no longer in office. A thorough and comprehensive investigation now preserves the evidence for later prosecution. This gives new meaning to Trump’s reiterated wishes that he might be President for life.
- Since no charges could be brought, it would have been unfair to determine that the President had committed a crime. Under normal circumstances, prosecution and public trial provides an opportunity for the person accused of a crime to explain their actions and present exculpatory evidence. The courts have held, for example, that naming persons in an indictment without also charging them violates their right to clear their name in a public trial.
- Despite being unable to bring charges or determine that a crime was committed, the investigation was unable to find that the President did not commit obstruction of justice. If they had, they would have said so. “Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”
The facts and evidence presented in volume 2 of the report show that the President repeatedly and consistently sought to interfere both in the FBI’s investigation into Russian hacking of the 2016 election and in the special counsel’s subsequent investigation. He sought to influence FBI Director Comey’s conduct of the FBI’s investigation, eventually firing him because he could not obtain the result he sought. He also sought to curtail the Mueller investigation and urged witnesses to lie to investigators. The evidence is substantial and well-documented. The President even made public statements about his intentions.
The case against the President is serious and substantial. Charges stemming from it—if they are ever filed—would constitute federal felonies. Some members of Trump’s campaign and administration have already been charged with similar crimes and pleaded guilty or been convicted. Some are currently serving terms in federal prison. The question still to be decided is, “What are we, the People, going to do about the President?”
For many Trump supporters, of course, none of this makes any difference. They have already doubled-down on their support for him so many times that they are now blind and deaf to any fresh allegations of crimes he may have committed. It is all a conspiracy by the deep state. Even a cursory examination of Robert Mueller and his investigation, however, shows that such ideas are utterly unfounded. It would be hard to find a man of greater integrity in the conduct of his office. His investigation was thorough, painstaking, and by the book. If you have any doubts, read his report. Of all men living, only Trump could slander Mueller and be widely believed.
For the rest of us, our elected representatives in Congress have been handed a detailed case for impeachment. The only impediment to starting impeachment proceedings is political. Democrats have both a hope and a fear. They hope to win enough Senate seats for a majority in the Senate. They fear that impeachment proceedings could sway the election next November in Republicans’ favor. They might also be holding impeachment in reserve in case Trump wins a second term. If he does not win, he very probably will face charges in federal court. There will be no opinion from the Office of Legal Counsel to hold back federal attorneys from prosecuting him.