robert-s-mueller-iii-cant-indict-sitting-president

The Mueller Investigation Was Always an Impeachment Probe

There is only one rational explanation for this performance. Mueller wants Congress and the public to presume that if it were not for the OLC guidance, it is very likely that he would have charged the president with obstruction — maybe not an absolute certainty, but nearly so.

And then, just in case we were too dense to understand the nods and winks, Mueller took pains to emphasize that, in our constitutional system, it is up to Congress, not federal prosecutors, to address alleged misconduct by a sitting president.

Simple as 1 + 1 + 1 = 3. Likely felony obstruction, plus inability of prosecutors to indict, plus duty of Congress to deal with presidential criminality, equals: Impeachment is the only remedy, unless congressional Democrats are saying that Donald Trump is above the law. (Good luck, Speaker Pelosi, trying to pipe down your AOC wing, to say nothing of the 2020 primary contestants, after that one.)

This should not be a surprise. We have been saying since shortly after Mueller was appointed that his investigation was not a collusion probe but an obstruction probe, and that this necessarily made it an impeachment probe.

Competing Views of Obstruction
As noted above, the apparent contradiction between Mueller and Barr is clarified by the timeline.

To grasp this, you must first understand that Mueller and his staff are completely result-oriented. If you’ve decided to act as counsel to a congressional impeachment inquiry rather than as a federal prosecutor, the objective is to get your evidence in front of Congress, with the patina of felony obstruction.

In the Nixon and Clinton situations, the rationale for impeachment was obstruction of justice. Significantly, the issue in impeachment cases is abuse of power, not courtroom guilt. Consequently, unlike a prosecutor, a counsel to a congressional impeachment committee does not need evidence strong enough to support a criminal indictment; just something reasonably close to that, enough to enable a president’s congressional opposition to find unfitness for high office.

Once you understand that, it is easy to see what happened here.

Mueller’s staff, chockablock with progressive activists, has conceptions of executive power and obstruction that are saliently different from Barr’s (and from those of conservative legal analysts who subscribe to Justice Scalia’s views on unitary executive power).

The attorney general believes that (a) obstruction charges may not be based on exercises of a president’s constitutional prerogatives — only on obviously corrupt acts (e.g., evidence destruction, bribing witnesses); (b) all executive power under the Constitution is reposed in the president; and thus, (c) when the chief executive takes actions the Constitution empowers him to take (e.g., firing or threatening to fire subordinates), it is not the place of an inferior executive officer, such as a federal prosecutor, to second-guess them as “corruptly motivated.” Recognizing how traumatic accusing a president of a crime is for the country, moreover, Barr thinks an obstruction offense would have to be crystal-clear and serious — you don’t tear the nation apart over something about which reasonable minds could differ.

By contrast, Mueller’s staff believes that (a) the executive bureaucracy is semi-autonomous in its areas of expertise, and thus Justice Department prosecutors are supreme, even over the president, in matters of law enforcement; (b) Congress had the constitutional power to, in effect, transfer executive authority from the president to prosecutors by enacting obstruction laws that may be enforced against the president; and therefore, (c) even if a presidential action is lawful in itself, a prosecutor may allege obstruction if the prosecutor believes the president’s motive was corrupt. Furthermore, little or no consideration should be given to whether a president’s allegedly obstructive act is especially clear or serious because the president (at least if the president is a Republican) must be treated like anyone else — otherwise, the president is placed above the law. (Democratic presidents, to the contrary, are the law — see, e.g., DACA, Obamacare decrees, IRS harassment of conservative groups, Fast and Furious stonewalling of Congress . . .)

Playing Out the Alternative Scenarios
This drastic divergence on what can constitute an obstruction offense had practical consequences here.

For most of his investigation, Mueller was “supervised” by acting AG Rod Rosenstein, who did not comply with special-counsel regulations in appointing him, and who promised Democrats that he would be effectively independent. As long as the studiously passive Rosenstein was at the helm, the staff-driven Mueller was free to investigate under his loose, envelope-pushing obstruction theory. Once Barr became AG, however, it was clear that Mueller’s theory was not going to fly.

So, let’s play out the alternative scenario.

Let’s say that, having convinced himself he had a strong obstruction case, Mueller decided to recommend that the president be charged. That would have forced a confrontation over the issue that has been sidestepped: What are the correct standards for evaluating an obstruction allegation against a president? There would have been a brawl at Main Justice. The report would have been held up while the matter was debated.

More to the point, Mueller and such top staffers as Andrew Weissmann and Michael Dreeben, who have operated at the top echelon of the Justice Department, would have known that the attorney general would win such a battle ten times out of ten. That goes double for an AG such as Barr, a highly regarded legal thinker who, besides now being AG twice, ran the OLC in the Bush 41 administration. He was not going to be intimidated or bulldozed by Mueller’s staff.

Remember: Mueller’s staff is looking at this as if they were congressional impeachment counsel. Their objective is to get their evidence to Congress bearing something close to the stamp of an indictable felonies.

Consequently, direct confrontation with the AG was the last thing they wanted. It would have guaranteed failure. The Mueller report’s discussion of obstruction standards would not have gotten out the Main Justice door as an authoritative statement of the law. There would have been a revised articulation of obstruction law as it applies to the president. There would have been vigorous debate over the eleven instances of obstruction Mueller wanted to allege. The report would have been scrutinized carefully by Justice Department lawyers, especially where it plays fast and loose with the facts (see, e.g., my Papadopouolos column). It might never have been released. If it had been released, it would have been discredited or dramatically revised.

That would not have helped the impeachment cause.

So . . . Plan B: What if we decline to make any recommendation on obstruction?

Mueller’s staff calculated: If we don’t press the point of indicting the president, the AG and the Justice Department have no reason to dispute our findings, or even take on our analysis of obstruction law. They’ll be so relieved to avoid a fight over obstruction charges, they’ll be willing to let all that slide. And with Congress demanding the report, and the AG having promised maximum transparency in his confirmation hearings, we will achieve our objective: Congress will get our obstruction evidence, with an accompanying legal analysis that tends strongly in favor of finding felony obstruction. That will be the basis for any impeachment proceedings.

This, then, became the plan: Mueller would decide not to decide.

There was just one problem: Mueller would need a reason for not deciding. Barr was sure to ask. Mueller could not truthfully respond, “Well, we see ourselves as congressional impeachment counsel.” Barr has been quite clear (and quite right) that federal prosecutors exist to enforce the law, not to do Congress’s work — Congress has its own bloated staff for that.

Mueller’s staff would need to come up with something that would pass the laugh test. After all, there was no collusion case, so rendering a prosecutorial judgment on the obstruction question was the only thing for which a special counsel had arguably been needed. Now, Mueller was about to tell the AG he would be abdicating on that. He’d be asked to explain himself, and if he didn’t have a compelling answer, he’d need to stall.

It happened on March 5, during Barr’s first meeting with Mueller after being confirmed. Taken aback by Mueller’s announcement that he would not be deciding the obstruction question, Barr pressed him repeatedly: “Is it because of the OLC guidance?” Mueller insisted that it was not. When asked what, then, was the reason, Mueller meandered about how they were still formulating their rationale.

Get it? Result-oriented: Decision first, then we’ll cobble together the reasoning.

Why would Mueller do this? Again, play out the alternative scenario.

If the special counsel had told Barr that the OLC guidance was his rationale for not deciding, Barr would likely have told him, “Don’t worry about the OLC guidance, that’s not your job. The OLC guidance only says we can’t return an indictment now. We still need to know whether there is a prosecutable case. Just make a recommendation on that, one way or the other.”

If that had happened, Mueller would have been cornered. If he recommended in favor of indictment, he would have ended up in the confrontation with Barr over obstruction law that he was trying to avoid. If he recommended against an indictment, he would have undermined the impeachment effort.

So he punted. And it worked.

Mueller told Barr he was still formulating his rationale for not deciding the issue. Maybe the staff really was still trying to come up with a coherent explanation; or maybe in the back (or front) of their minds, they figured “we’re still formulating” was vague enough that they could ultimately rely on the OLC guidance, even if Mueller had said it was not his rationale.

Whatever the calculation was, two and a half weeks later, when Mueller delivered his final report to Barr on March 22, Mueller and his staff expressly invoked the OLC guidance.

Does that mean Mueller was being dishonest on March 5? Does it mean his thinking truly was still evolving?

What difference does it make?

What matters is that Mueller’s shrewd staffers accomplished exactly what they hoped to accomplish: Make sure the report was disclosed to Congress intact, with 200 pages of obstruction evidence, a legal analysis that tends toward a finding of obstruction, and an express assertion by the special counsel that if he had found Trump did not commit a crime, he would have said so.

105

And now, for good measure, Mueller took pains on Wednesday to stress that, in our system, it is Congress’s duty to address presidential misconduct.

For partisan lawyers who saw their special-counsel gig as an opportunity to play congressional impeachment counsel, it is Mission Accomplished.

Fox News judge gives Trump terrible news amid Mueller speech

BREAKING: Fox News’ Judge Napolitano just gave Trump some terrible news in the aftermath of Mueller’s surprise press conference.

now judge before you launch into this
Lizzy would you again read that what to
me I think you’ll agree this is to me
the key sentence really if we had
confidence the president did not commit
a crime we would have said so that is in
the Muller report and I think we could
if we had confidence the president did
not commit a crime we would have said I
could not agree with Lizzy any more than
I do that opens the door for the
Democrats to pounce effectively what Bob
Muller said is we had evidence that he
committed a crime but we couldn’t charge
him because he’s the president of the
United States this is even stronger than
the language in his report this is also
a parting shot at his soon-to-be former
boss the Attorney General because this
statement is a hundred and eighty
degrees from the four-page statement
that bill Barr issued at the time he
first saw the reported that bad I think
so I think basically saying the
president can’t be indicted otherwise we
would have indicted him and we’re not
gonna charge him with a crime because
there’s no forum in which for him for
him to refute the charges but we could
not say that he didn’t commit a crime
fill in the blank because we believe he
did and now this is about the
obstruction of justice yes side if they
also think that there is fodder for the
Democrats on the conspiracy side he
didn’t say there was no conspiracy he
just said we were not able to establish
it beyond a reasonable doubt there’s
some evidence of it 127 communications
between Russian agents and Trump
campaign officials from November a from
July of 15 to November of 16 but not
enough for us to make a criminal case
out of it I think this is hurtful to the
president hurtful to bill Barr fodder
for the Democrats but I also think that
the language in here is such that
there’s something in here for everybody
right but Robert Miller also said he
also said we did not however make a
determination as to whether the
President did commit a crime so that
indicates there was they couldn’t
prosecute anything because they didn’t
have the evidence of it but that if it
wasn’t there the evidence that they
leave I know the ten instances or eleven
instances I understand that
that’s a political decision to a peach
now the prosecutor correct but the
evidence he laid out is remarkably
similar to the impeachment charges
against Richard Nixon and Bill Clinton
Richard Nixon hotel Haldeman and
Ehrlichman to lie to the FBI
president Trump tell Dunham again to
change his testimony that he gave to the
FBI
Bill Clinton tell Betty curry to lie to
the FBI Donald Trump tell Katie
MacFarlane to put a false document in a
file that you know is going to be
subpoenaed these facts that he laid out
are so substantially similar to the
matured allegations against Bill Clinton
and Richard Nixon it’s clear where he
was going this is Fox News’s senior
judicial analyst Andrew Napolitano
confirming what everyone knows but what
Republicans are pretending isn’t true
that Muller’s press conference really is
that bad for Trump Napolitano blows a
hole in Republicans most misleading
talking point the Trump is exonerated
because he wasn’t charged with a crime
but he wasn’t charged because it’s
against the oj guidance to indict a
sitting president and the GOP knew that
in fact it was their insurance policy so
from the beginning they set out to claim
that unless Trump was indicted that he
was absolved of all guilt and lo and
behold Muller followed the law by not
indicted him but because of today’s
press conference the rest of the country
was led in on that so the White House
can no longer fall back on this
disingenuous talking point but more
importantly Muller said outright that he
couldn’t say that Trump did not commit a
crime and has 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 as Judge Napolitano says
fill-in-the-blank people don’t speak
like that when the accused is as Trump
puts it totally and completely
exonerated if I lent a friend my car and
he called me and told me that if he had
confidence that he didn’t just get into
an accident he would say so I wouldn’t
be very excited to see my car for a
career law enforcement official intent
on not politicizing his position intent
on following DOJ guidance I’m not
charging a president intent on only
laying out the facts of his
investigation so Congress can decide
whether or not to act on them Robert
Muller stayed as neutral as possible
given the glaring guilt of the subject
of his probe and even so it was still
obvious through his word
Trump is by no means exonerated
Napolitano goes on to compare this
investigation into Trump to the
impeachment of Clinton and Nixon and
it’s especially interesting that he
references Clinton because there are
currently 14 Republican senators who
voted for Clinton’s impeachment for one
of the same exact crimes laid out
against Trump which is witness tampering
just as Bill Clinton was charged for
trying to corrupt Lee influence the
potential testimony of his secretary
betty curie Trump made it known that
Paul Manafort and Mike Flynn could
receive pardons according to mother’s
report so if we look back to the late
90s regarding obstruction of justice
we’d hear Mitch McConnell say that the
undisputed evidence shows that the
president took the path of lies in
deceit and that he is completely and
utterly perplexed by those who argue
that obstruction of justice isn’t a high
crime or misdemeanor we’d hear chuck
Grassley talk about how the president’s
actions weren’t just outrageous and
morally wrong
they were also illegal and we’d hear
Lindsey Graham claim that he doesn’t
want people at home to be confused that
they can do these things because if they
do what the President did they’d wind up
in jail but chances are because this
president has an R next to his name
instead of a D that suddenly Trump’s
blatantly obvious criminal activity will
be permissible that we won’t hear
anything from McConnell or Grassley or
Graham or while we’re at it any of the
other Republicans who were so vocal
while sanctimoniously grandstanding
about protecting the rule of law during
the Clinton years so they can tow the
party line and live in their Orwellian
state of reality where in the White
House tries to convince us that what
we’ve just heard isn’t what we actually
heard but this clearly isn’t the best
time to have their wagons hitched to
Trump because he may try to spin this as
a win but in reality Miller’s press
conference truly was hurtful to the
president hurtful to Bill Barr fodder
for the Democrats

Is Mueller Bound by OLC’s Memos on Presidential Immunity?

The New York Times recently unearthed a thorough legal memo, prepared twenty years ago for Independent Counsel Kenneth Starr, that advances the view that a sitting president can be indicted while still in office. For those keeping score, this new memo sharpens an internal divide within the Department of Justice on this important question. Two memos authored by the Office of Legal Counsel—one in 1973, in the midst of the Nixon impeachment saga, the other in 2000, on the heels of the Clinton impeachment saga—take the view that a sitting president is immune from indictment. By contrast, two different memos—authored by the Office of Special Counselinvestigating Nixon, and the Office of Independent Counsel investigating Clinton—reach the opposite conclusion.

That these different offices have repeatedly disagreed on this central question isn’t really all that surprising. They have different institutional roles, different missions, and different cultures, all of which might impact their respective approaches to the issue. For present purposes, however, the most important practical question is whether the current special counsel, Robert Mueller, is free to exercise his own independent judgment on the immunity issue, or whether he is instead bound to follow OLC’s take. If it’s the latter, then those two OLC memos would together constitute the single greatest shield protecting President Trump from prosecution: No matter how strong the evidence against him may become, if OLC’s memos are binding then the President simply cannot be indicted until after he leaves office—by which point, it bears noting, the statute of limitations for any relevant conduct may well have expired.

.. To my mind, there are at least three such points here. First and foremost, the justifications underlying the general practice of treating OLC opinions as binding on executive branch officials do not necessarily apply to the Office of Special Counsel, which is supposed to be insulated from the influence of political appointees when assessing the president’s exposure to criminal liability. Second, the formal regulations setting out the special counsel’s authority do not clearly compel him to follow OLC’s lead. And third, historical practice suggests that he need not do so.

.. As Nelson Lund explains, that practice reflects the reality that “OLC does not serve as the mouthpiece for the Solicitor General or the litigating divisions” of the Department of Justice, which “will often defend” or advance a proposition in court “even if OLC would have advised against it.” When the ball is in the litigating divisions’ court, in other words, OLC typically defers to their authority to articulate the position of the United States. And when the litigation at issue is a potential criminal prosecution of the president of the United States, the relevant “litigating division” is the Office of Special Counsel.

Yet, in an apparent deviation from its articulated best practices, OLC issued the presidential-immunity memos in the thick of two separate pending cases. Indeed, the first memo actually contradicted the litigating position that Special Counsel Jaworski soon articulated on behalf of the United States to the Supreme Court. And the second opinion was prepared as the Office of Independent Counsel was considering a draft indictment of President Clinton, in a process that had also already generated litigation. The fact that OLC may have deviated from its ordinary best practices to issue these memos—thereby perhaps usurping the special counsels’ rightful authority to articulate the government’s litigating position—may be yet another reason not to treat the memos as binding. [Editor’s Note: An earlier version of this post suggested that the Special Counsel’s Reply Brief in United States v. Nixon was filed in July of 1973. The brief was filed in July of 1974.]

Chris Wallace: Barr’s decision to make a conclusion on obstruction is ‘troubling’ and ‘politically charged’

“Fox News Sunday” anchor Chris Wallace said Friday Attorney General William Barr’s decision to make a conclusion on the question of obstruction of justice “seems even more troubling, and perhaps even more politically charged when you read the report.”

Wallace made the comment on “America’s Newsroom” Friday referencing Barr and Deputy Attorney General Rod Rosenstein ‘s determination there was not sufficient evidence on the obstruction front even though Special Counsel Robert Mueller did not reach a conclusion on whether President Trump committed this offense.

“When you read the report it becomes clear that the reason that Robert Mueller didn’t make a finding on obstruction wasn’t because he didn’t feel capable of doing it, but because he thought in direct contradiction to what Bill Barr said yesterday, that under department guidelines, there could not be an indictment of a sitting president, and he very much left it to Congress to make that decision,” said Wallace Friday.