TDS Strategy Memos
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By Ed Kilgore
All of us in the chattering classes had an immediate reaction to the release of the redacted Mueller Report. Here was mine at New York.
Mueller lets us know (directly contradicting Barr’s repeated assurances that it was lack of evidence, not the legal standard, that prevented criminal accusations) that he decided not to pursue a “traditional prosecutorial judgment” on possible obstruction of justice in order to comply with the DOJ’s position against prosecution of sitting presidents:
“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, see 28 U.S.C. § 515; 28 C.F.R. § 600.7 (a), this Office accepted OLC’s legal conclusion for the purpose of exercising prosecutorial jurisdiction.
In a sort of Catch-22, Mueller then concluded that it wouldn’t be fair to Trump to accuse him of criminal conduct if he wasn’t going to be hauled into court and given an opportunity to properly defend himself.
“Fairness concerns counseled against potentially reaching that judgment when no charges can be brought. 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. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor’s judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.”
And then there’s this tantalizing passage:
The footnote to the italicized portion reads: “See U.S. CONST. Art. I § 2, cl. 5; § 3, cl. 6; cf OLC Op. at 257-258 (discussing relationship between impeachment and criminal prosecution of a sitting President).”
So very carefully Mueller is suggesting: Here’s what the president did. I can’t do anything about it, so I will not call it criminal. Use my findings to impeach him if you wish, Congress.
As Nancy Pelosi could tell you, there are solid practical grounds for the U.S. House of Representatives to eschew impeachment proceedings, beginning with the fact that there is approximately zero chance the Republican-controlled Senate would vote to convict Trump, particularly now that we are in the active phase of a presidential election cycle. So it may well be that the best Democrats, and Trump’s other critics, can do is to take Mueller’s findings and whatever else other prosecutors or House investigators can uncover, and present it clearly as part of the case against the man’s reelection.