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The epic report that doesn't exonerate the president.
Reuters/Jonathan Ernst
The epic report that doesn’t exonerate the president.
LAW LAW LAND

The Mueller report uses circular reasoning on obstruction of justice

By Ephrat Livni

Special counsel Robert Mueller didn’t recommend that US president Donald Trump be charged with obstruction of justice. However, Mueller’s just-issued report also doesn’t say that Trump didn’t obstruct justice.

Basically, in four points that lay out the almost comical logic Mueller followed, he concluded that charging Trump criminally would be a bad move. Because a sitting president cannot be tried in criminal court for an offense, Trump is only subject to prosecution via congressional impeachment proceedings while in office, according to the Department of Justice. It’s a position Mueller doesn’t necessarily agree with but accepted. And because having a criminal charge over his head until he’s a common citizen again would leave Trump without his constitutional right to a speedy trial, Mueller made no “traditional prosecution determination” and no explicit recommendation.

In other words, Mueller didn’t even decide whether Trump’s actions constitute a crime. He “declined” to consider the criminality of Trump’s actions.

However, the special counsel also stated that lack of a charge is not synonymous with innocence. “Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him,” Mueller writes. In fact, Mueller specifically says that he cannot clear Trump’s name based on the investigation, though he would have done so if the facts supported such a finding, explaining:

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 are 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.

Essentially, Mueller is saying that he wasn’t able to recommend charging the president with obstruction for technical reasons. And he wasn’t able to clear Trump’s name for factual reasons. Some commentators, like Yoni Applebaum at the Atlantic, are thus interpreting the Mueller Report as an “impeachment referral.” Applebaum argues that Mueller is suggesting that congressional representatives initiate action to try the president.

There is support for this contention. The report challenges the legal basis that the DOJ used to argue that Trump couldn’t be charged criminally and notes that he could face prosecution once he is out of office. It also argues that congress has the authority to investigate obstruction of justice by the president and that Trump could be charged criminally once out of office. “In doing so, Mueller makes clear that his findings were intended for independent evaluation by Congress, or by future prosecutors,” Asha Rangappa, a lawyer, former FBI agent, and senior lecturer at Yale, tells Just Security.

Whatever Mueller’s intentions, it’s certainly true that his report is not exactly a ringing endorsement of Trump or his actions. The factual conclusions in the obstruction of justice section of the 448-page report are damning, noting that Trump lied to the public about his involvement with Russia, misled reporters about his son’s activities on behalf of his campaign, and bullied the attorney general, FBI, and White House counsel in efforts to thwart or control Mueller’s work, and privately expressed concern that the investigation would end his presidency.

According to the report, when Mueller was appointed to act as special counsel, Trump responded by saying, “Oh my God. This is terrible. This is the end of my presidency. I’m fucked.” And while the investigation hasn’t yet unseated the president, his assessment of the state of affairs sounds just about right.