There was a pretty vigorous argument going on over at Deadline White House today over how explicitly Mueller should have stated that he wanted to indict Trump for obstruction of justice. Rick Stengel represented most of us frustrated Democrats who cannot for the life of us understand why Mueller did not go the extra step of actually either indicting Trump for obstruction, or at the very least, SAYING he wanted to indict him, but was constrained by the OLC guidelines stating he shouldn't.
Here's what the Mueller report stated:
"The conclusion that Congress may apply the obstruction laws to the president's corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law."
Wallace recounted a New York Times article, which said that the report makes it crystal clear — the evidence it contains can and should be examined by other institutions (HELLO, CONGRESS!) for potential action to be taken. It states the investigation was conducted, in part, to preserve the memories and evidence while they were still fresh and materials available. Also from the Mueller report:
"If we had confidence after a thorough investigation of the facts that the president clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we were unable to reach that judgment. The evidence we obtained about the president's actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly while this report does not conclude that the president committed a crime, it also does not exonerate him."
Joyce Vance agreed that there was CLEARLY evidence on the obstruction count, and that once Trump is out of office by whatever means he makes his way out of office, he can, and likely will be prosecuted because of this investigation. "I don't know how much clearer, frankly, Mueller could have been to say that this is not yet over." For Rick Stengel, that is just not good enough, and honestly, I'm with him. What ensued was a nuanced and passionate discussion of what would have been permissible given whatever constraints held Mueller back.
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STENGEL: Well, I'll tell you one way he could have been clearer. Which is to say, "but for the office of legal counsel guide lines not being able to indict a president, we would have indicted this person."
VANCE: They all BUT that say that.
STENGEL: Why NOT say that? You're a writer. You HAVE to say that.
VANCE: Let me tell you why not, though. And I think that this is hard for people who haven't been inside the Justice Department. People who are prosecutors take their ethical constraints really seriously. This is a tough situation. I think they went as close to saying that as they could without running afoul of this notion the fact that you can't indict a president means that you also shouldn't consider the ultimate question because that hangs that thread of prosecution over his head. They walked a fine line here.
STENGEL: That's a noble sentiment. I think it's probably lost on most people. People see the president as being profoundly unfair and Mueller as erring on the side of fairness. And what would have been the legal violation of actually saying this?
VANCE: Yeah, but it would have run afoul of OLC, but let me just say, I think that what they did was, they knew if they put it to the table, those of us who have been in the department would get to the table and eat and would explain to the American people what this means. It means that they believe obstruction evidence exists.
HEILEMANN: Is it not also the issue, I'm not inside Bob Mueller's head, but at least reading this it strikes me the issue here is if you can't indict the sitting president -- if you're not going to indict someone, they then -- you then go to court and they have the presumption of innocence, so they get to make their case, right? You say they should go to jail. They get to stand up and they have the presumption of innocence and make their counterargument. In this case it's not just that he couldn't indict the sitting president. The fact he couldn't indict him meant that he would be making a case against Trump and Trump would not have the ability to answer. That I think was the ethical issue that Mueller was confronting. Again, to see it from his point of view is that he leaves Trump defenseless. There are people out here that say who cares because they hate Donald Trump and think he's guilty. But from Mueller's point of view, that must have been weighing on him, to some extent.
Mind you, we aren't likely even aware of all the constraints placed upon Robert Mueller. We don't know how or why this investigation ended when it did, or what kind of pressure AG Barr put on Mueller to close it. If there is anything we do know, now, it's that Barr is a Trump lacky and completely unprincipled, with no compunction about lying and putting his thumb on the scale for a criminal president.
How dare I say criminal when there is no indictment? Well, let's see. Trump collaborated with a hostile foreign power to interfere with our elections to gain the highest office in the land. He rewarded its interference. Once he learned of the investigation, he said his presidency was over, spelling out motive for the many acts of obstruction for that investigation that came after. And he is "Individual Number One" in a case pending in the SDNY, concerning illegal hush money payments surrounding his extra-marital affairs.
Yeah. We can all safely call him a criminal. All of us except Mueller, apparently. But the rest of us? And Congress? Get to work.