After almost two years of waiting for the Mueller Report, it turns out that much of the suspense could have been avoided for one simple reason: Special Counsel Robert Mueller viewed himself as prohibited from reaching a conclusion that President Donald Trump committed a crime, regardless of the evidence establishing criminal conduct by the president.
In fact, based on the special counsel’s interpretation of the Constitution and Justice Department policy, the only two conclusions he could reach with respect to the president were to exonerate him or abstain from reaching a conclusion that the president engaged in criminal conduct.
In Mueller’s view, the Constitution and DOJ policy prevented any other finding.
Prohibited From Finding Criminal Activity
According to what can be termed the “Mueller Doctrine,” regardless of the evidence, a special counsel is prohibited from concluding that a sitting president committed a crime. A corollary of the Mueller Doctrine, which reserves exclusively to Congress the authority to conclude that a sitting president committed a crime, reveals serious falsehoods in the letter sent by Attorney General William Barr to Congress on March 24.
Let me explain. In the Introduction to Volume II of the Mueller Report, which looked at “whether the President had obstructed justice in connection with Russia-related investigations,” the special counsel summarized the “considerations that guided our obstruction-of-justice investigation.”
Those considerations started with the legal conclusion reached by the Office of Legal Counsel of the DOJ in an October 2000 Memorandum Opinion that the indictment or criminal prosecution of a sitting president would violate the constitutional separation of powers. That OLC memo concluded that “the Constitution requires a recognition of a presidential immunity from indictment and criminal prosecution while the President is in office.”
The special counsel took that principle a step further. In addition to prohibiting indictment and criminal prosecution, Mueller determined that he was prohibited from reaching an investigative conclusion that Trump committed a crime. As stated in the report: “we determined not to apply an approach that could potentially result in a judgment that the President committed crimes.”
In other words, the special counsel viewed himself as functionally not permitted to conclude that the president engaged in criminal conduct. That limitation rendered it impossible to conclude that the president committed a crime even if the evidence supported that conclusion.
In particular, the special counsel observed “that a federal criminal accusation against a sitting President would place burdens on the President’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct.”
In a footnote supporting this proposition, that future Constitutional scholars will no doubt refer to famously as Mueller Footnote 2, the special counsel cited:
- Article I, Section 2, Clause 5 of the Constitution (“The House of Representatives . . . shall have the sole Power of Impeachment”);
- Article I, Section 3, Clause 6 of the Constitution (“The Senate shall have the sole Power to try all Impeachments”); and
- the pages of the OLC memo concluding that it is not for the DOJ but for Congress to determine whether the public interest in removing a sitting president “whose continuation in office poses a threat to the Nation’s welfare outweighs the public interest in avoiding” the burdens incident to the impeachment process.
Based on these constitutional constraints, the special counsel determined that while he was structurally permitted to conclude that the president did not commit a crime, he was prohibited from concluding that the president did commit a crime.
In the end, Mueller found that, based on the facts and the applicable legal standards, he could not conclude that the president did not commit obstruction of justice. Since he was constitutionally prohibited from finding that a crime had been committed, the special counsel’s only option was to issue the measured determination that, “while this report does not conclude that the President committed a crime, it also does not exonerate him.”
Falsehoods in Barr’s Letter
In addition to raising questions about the future usefulness of special counsels if they are powerless to find presidential criminality, the Mueller Doctrine reveals at least two falsehoods in Barr’s letter to Congress.
In the letter, Barr asserted that the special counsel’s decision not to reach any legal conclusions on obstruction, “leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime.” That is a false description of the conclusions of the Mueller Report. The report could not be clearer that it is the responsibility of Congress—and not the attorney general or any other representative of the DOJ—to determine whether a crime was committed by the president.
Second, Barr concealed that his determination was inconsistent with the report while publicly portraying his “summary” as consistent. According to Barr, he and Deputy Attorney General Rod Rosenstein “concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.”
Although the special counsel was fully empowered to reach that conclusion, he expressly rejected it based on the evidence. Instead, the special counsel found that the evidence did not support a conclusion that the president had not engaged in obstruction of justice and the report did not exonerate the president. Any suggestion by the attorney general to the contrary is false and should be rejected.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Lorin L. Reisner is a partner at Paul, Weiss, Rifkind, Wharton & Garrison and former chief of the Criminal Division of the U.S. Attorney’s Office for the Southern District of New York.