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).

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
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
Bill Clinton tell Betty curry to lie to
the FBI Donald Trump tell Katie
MacFarlane to put a false document in a
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.