Special counsel Robert S. Mueller III has taken a lot of heat for his decision not to make a judgment whether President Trump obstructed justice. This decision has baffled many observers. Some have suggested Mueller blundered or failed to fulfill his duty. But far from being a blunder, Mueller’s decision may be seen as a smart move to maximize the information available to Congress and the public.
Mueller’s report, as well as his statement on May 29, make it clear that his decision was based on two Justice Department policies. The first was the long-standing policy that a president may not be indicted while in office. Mueller believed his office, as part of the Justice Department, was bound by this policy. As he said in his statement, “Charging the president with a crime was . . . not an option we could consider.”
This brought into play a second Justice Department policy: the department generally will not accuse someone of a crime if they are not being charged. It’s considered unfair to accuse someone if they will not have an opportunity to clear their name in court. This explains why in charging documents you often see those who are implicated in wrongdoing but are not being charged referred to by pseudonyms, such as (in Trump’s case) “Individual 1.”
One could argue this general policy should not apply in this instance, because the president is not just any citizen. As Trump has repeatedly shown, the bully pulpit gives a president unparalleled opportunities to defend himself and attack his accusers. And the public interest in knowing whether a president may have committed a crime vastly exceeds the public interest in knowing that about any other citizen.
Regardless, those two policies, taken together, led Mueller to conclude it would be improper to accuse the president. But that refusal to make a call on obstruction has led to widespread dissatisfaction and frustration. Remember, the evidence presented in his report was so overwhelming that more than 1,000 former federal prosecutors have signed a letter saying anyone other than a sitting president would have been charged with obstruction. Mueller’s report effectively accuses the president anyway, so why not be explicit?
What’s more, the policy against publicly accusing an uncharged person of a crime does not technically apply to the Mueller report. The special counsel regulations required Mueller to prepare a “confidential report” to the Attorney General. The report is not a public document like an indictment and so would not amount to a public accusation.
But here’s where the wisdom of Mueller’s approach begins to show. Recall that Attorney General William P. Barr, during his confirmation hearings, pledged to release as much of Mueller’s report as possible consistent with the “law and Department policy.” Had Mueller made a “traditional prosecutorial judgment” and accused the president of obstruction, then the report would become a more typical internal prosecution memo — the kind that never see the public light of day. The policy against publicly accusing those who have not been charged could have given Barr a ready excuse to withhold the report from the public, or at a minimum to redact a great deal of volume 2 that deals with obstruction of justice.
This easily could have led to a months-long legal and political battle, with only Barr’s “no obstruction” conclusion available to the public. We still might not know what is in Volume 2. Instead, Mueller’s approach left us with the best possible result, under the circumstances: Overwhelming evidence of obstruction with no plausible excuse for keeping that evidence a secret.
That said, Mueller may not have foreseen two complications. The first was Barr’s decision to announce that Barr himself had concluded the evidence did not establish obstruction of justice. This shaped the public perception of Mueller’s report and supported the president’s misleading claims of total exoneration. But Barr’s own legal analysis will not be binding on an administration after the president leaves office. In the end, Barr’s opinion has only political implications, not legal ones.
The second complication is Congress’s reluctance to act. As Mueller said during his press statement, while the president is in office the Constitution “requires a process other than the criminal justice system” to accuse the president of misconduct. That process, of course, is impeachment. The Constitution contemplates that a president who engages in criminal misconduct may be impeached and removed from office and then prosecuted if appropriate — but that presumes a Congress willing to fulfill its constitutional role.
By writing his report the way he did, Mueller did everything in his power to ensure that Congress received the maximum amount of information possible. It remains to be seen what Congress will choose to do with it.
