The Independent View: The Hole in Mueller's Report

This is from an article by Rick Pildes, is a Professor of Constitutional Law at NYU Law School and a Former Clerk for Supreme Court Justice Thurgood Marshall.

The Mueller report makes one legal judgment, in particular, that I find extremely puzzling. I think this judgment is going to cause endless confusion in the public and political debate about the report, and indeed, is doing so already. I explained this issue in a piece for Politico, among a series of essays from legal experts on the report.

Here is what I wrote there:

On the obstruction issue, the Mueller Report is, to my surprise, deeply confused and confusing about the fundamental issue of what the report means to be telling us.

The obstruction analysis begins with a statement of four principles that governed the analysis. The most consequential of these will come as a stunner to most people: “We determined not to apply an approach that could potentially result in a judgment that the President committed crimes” (emphasis added). In other words, the report was never going to reach a judgment about whether the president had committed a crime. No matter what the facts showed, the special counsel determined at the outset, as a matter of principle, that it would be inappropriate to conclude that the president had committed a crime.

I assume most people would have thought the entire point of the special counsel investigation on obstruction was precisely to determine whether the president had committed any crimes. But the report concludes that because the president cannot be indicted while in office, it would be “unfair” in principle to conclude he had committed a crime, since unlike the ordinary criminal defendant, he would not soon have a trial in which he could clear his name. In other words: Since the president cannot be indicted while in office, he also can’t be found by the Justice Department to have committed a crime while in office.

So what was the point of the obstruction phase of the investigation? Merely to “preserve the evidence when memories were fresh and documentary materials available.”

The report states that if the evidence had left the special counsel convinced the president had not committed a crime, the report would be able to tell us that. Thus, we are told both that the special counsel would not be able to say if he’d concluded the president had committed a crime, and that the special counsel was able to say that he cannot conclude the president did not commit a crime. But if these considerations of “fairness” to the president are correct, they would presumably also prohibit the attorney general from publicly concluding that the president had committed a crime.

If the report had at least been clear and explicit throughout about how narrowly Mueller conceived his role, it could have expressly said things like, “We believe only Congress can decide whether a president has committed a crime while in office” or “We will only present you with our factual findings and our view of the general legal principles involved.” That would at least have left clear the limited role the special counsel believed the Department of Justice can play in evaluating potential presidential criminal liability.

But instead, the report assessed whether each event it examined could be considered obstructive. This leaves the impression that the special counsel evaluated each event and concluded that one could argue either way about whether it could be part of an obstruction crime. There is a large difference between saying (1) it is not our role, it is only for Congress to decide whether a crime has been committed, and (2) we are indeed evaluating the merits and we conclude the case could go either way.

I am afraid Mueller’s report muddies the difference between these two positions. The result is that partisans will have plausible bases for reading the obstruction analysis consistent with their prior partisan preferences.

The Concept that a President Cannot be Indicted while in Office, is just a Department of Justice (DOJ) Opinion. There’s No Caselaw, but we have Four interesting Government Memos dating back Half a Century.

Start with the Memos, One issued by the Justice Department’s Office of Legal Counsel (OLC) during the waning days of the Nixon Presidency; a contemporaneous Memo by the late Robert Bork, then Solicitor General, advising a District Court that a Vice President could be Indicted; a 2000 Opinion by the OLC Reaffirming the 1973 Opinion; and, finally, a 1998 Opinion by a Lawyer in Kenneth Starr’s Office of the Independent Counsel Investigating President Bill Clinton.

The results are: Three “No Indictment” Opinions, and One “Yes Indictment” Opinion. Perhaps by Coincidence, the Three “No Indictment” Opinions were Issued by Executive-Branch Lawyers who Work for Presidents, while the “Yes” Opinion came out of the Starr Probe, which pursued Clinton with a Passion and finally got him Impeached.

So who is going to be the First to Challenge this Opinion?