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In gross violation of Justice Department policy and constitutional norms, a prosecutor neither charges nor recommends charges against a suspect, but proceeds to smear him by publishing 200 pages of obstruction allegations. Asked to explain why he did it, the prosecutor says he was just trying to protect the suspect from being smeared.
This is the upshot of the Mueller report’s Volume II. It might be thought campy if the suspect weren’t the president of the United States and the stakes weren’t so high.
The smear-but-don’t-charge outcome is the result of two wrongs: (1) Mueller’s dizzying application of Justice Department guidance, written by the Office of Legal Counsel (OLC), holding that a president may not be indicted while he is in office; and (2) the media-Democrat complex’s demand that only laws they like — those that serve their anti-Trump political purposes — be enforced.
On the matter of the OLC guidance, the Mueller report exhibits the same sleight-of-hand that I detailed in Monday’s column regarding its account of the George Papadopoulos saga — in which Mueller obscures the fact that the FBI’s counterintelligence investigation (“Crossfire Hurricane”) was opened on the false pretense that a Russian agent named Joseph Mifsud confided to Trump adviser Papadopoulos that Russia had thousands of Clinton emails, which Papadopoulos told Australian diplomat Alexander Downer the Kremlin planned to publish in a manner timed to damage Clinton for Trump’s benefit. To the contrary, if you wade through the fine print of Mueller’s report, you learn that Mifsud was not a Russian agent; there’s a good chance he did not tell Papadopoulos anything about emails; in relating to Downer that Russia might have damaging information on Clinton, Papadopoulos said nothing about emails or about Russia trying to help Trump; but, two months after they spoke and the hacked DNC emails were published, Downer (in consultation with the Obama State Department) leapt to the overwrought conclusions that Papadopoulos must have been referring to those emails (he wasn’t) and that Russia and the Trump campaign must be collaborating to undermine the election (they weren’t).
The narrative head fakes and legal mumbo-jumbo make you wonder what’s going on here. Who is running this show, Mueller — or some of his notoriously aggressive staffers, recruited from the Obama Justice Department and private practice stints representing the Clintons?
On the matter of the OLC guidance, if you can follow his reasoning, the special counsel twists himself into the position that it would have been unfairly prejudicial to Trump to recommend charges when the president would not have been able to defend himself in a judicial proceeding — but, somehow, it was perfectly fair to Trump for Mueller to publish his evidence in a document manifestly written for exploitation by congressional Democrats and the media.
Flaws in the OLC Guidance
For what it’s worth, I have always thought the OLC guidance is wrong. I do not believe the Framers intended to insulate a sitting president from indictment.
The Constitution presumes that the check on a rogue president will be impeachment. It elaborates, however, that impeachment is no impediment to indictment. Further, the Constitution does not say that indictment must await either impeachment or other departure from office. (Article I, Section 3, says a “party convicted” of impeachment is liable to court prosecution, but this does not necessarily mean prosecution may occur only after a president either has been convicted in a Senate impeachment trial, or his term otherwise ends.)
While there was significant discussion of impeachment when the Constitution was being drafted in 1787 (I outlined much of it in Faithless Execution), I doubt the Framers gave much thought to the timing of a president’s indictment. There were no federal prosecutors to speak of at the time (there was no Justice Department until 1870 and no FBI until 1908), and the federal Constitution would not have barred action by state prosecutors. The Constitution presumes it is Congress’s job to check a wayward president — and not a job to be delegated to a prosecutor.
More to the point, it makes no sense that a president should be spared indictment under seal. This is how the Justice Department routinely deals with cases in which (a) a crime must be charged to prevent the statute of limitations from lapsing, but (b) the indictment should not be publicized for some good policy reason (usually, because the accused is at large and, if put on notice, could flee and destroy evidence). The OLC guidance’s objective is simply to delay prosecution in deference to the chief executive’s weighty responsibilities; it is not supposed to put the president above the law by giving him a statute-of-limitations defense that would not be available to the rest of us.
Consequently, if there is a truly serious offense and enough evidence to support prosecution, a president should be indicted under seal (i.e., under court-supervised secrecy). Then the indictment could be unsealed once a president is out of office, and the criminal case could proceed in the normal course.
Whether I am right or wrong about this, it is indisputable that we are talking only about timing. The OLC guidance does not say a president may never be indicted; just that he can’t be indicted while serving.
Indefensible Decision Not to Decide
That means the OLC guidance should be irrelevant to the prosecutor investigating the case. Even if we stipulate, for argument’s sake, that a president may not be indicted in the here and now, he may still be prosecuted for any indictable offense at some future point. Therefore, someone must decide if there is a crime worth charging. That someone, obviously, is the prosecutor assigned to investigate the case. Since there is no bar on investigating a sitting president, it makes no sense to refrain from making the prosecution judgment — to charge or not to charge — until later (potentially, years later) when witnesses’ memories have faded and evidence has gone stale or missing.
If there is sufficient evidence, then it is the prosecutor’s job to recommend indictment. The question of whether the OLC guidance should then be invoked to delay indictment should then be up to the attorney general. The guidance should not burden the prosecutor’s analysis of whether there is an indictable case.
Yet Mueller chose not to see it that way. His thinking on the matter, it appears, was muddled, evolving over a few weeks’ time as he groped for a way to rationalize his failure to make a decision about whether obstruction should be charged.
In recent Senate testimony, Attorney General Bill Barr related that he and his staff met with the Mueller team a couple of weeks before the report was completed. Mueller surprised them with the news that he would not be resolving the obstruction question. When asked to explain, Mueller said his rationale for this non-decision was not yet fully developed — such temporizing, of course, is often the sign of handwringing as one tries to rationalize a determination one knows is wrong. Nevertheless, Barr reports that Mueller was emphatic that the OLC guidance was not what drove his decision to abdicate.
Yet when we finally saw the Mueller report, we found that the obstruction volume begins with a discussion of the OLC guidance. It is, by turns, vaporous and preposterous. It is no wonder Barr has said he does not know exactly what Mueller was thinking.
Here’s my take.
Mueller deduces that the guidance (a) prohibits indictment in order to avoid a public charge that would undermine the capacity of a president to govern, but (b) permits investigation with an eye toward post-presidency prosecution. The special counsel pretends that this gives him “fairness concerns” over the president’s due-process rights: If, after a thorough investigation, a prosecutor made a judgment that the president had committed a crime but did not charge him, Mueller reasons that the poor president would bear all the stigma of a criminal accusation but would have no opportunity to clear his name in formal court proceedings. That is, the OLC guidance denies him his day in court.
Mind you: Mueller says this as a précis to pouring out over 200 pages’ worth of obstruction evidence — and, implying that this evidence is quite serious indeed, he is at pains to tell you he will not “exonerate” the president, even though he hasn’t charged him. That is, Mueller’s report is designed to taint the president when he does not have the constitutional protections of a criminal defendant — exactly the thing Mueller claimed to be avoiding by not making a decision on obstruction.
Of course, there would be no such danger if the report had been kept confidential, as federal regulations require. There would be no such danger if Mueller had simply done his job, made the required binary decision about whether or not the evidence supported indictment, and left the application of the OLC guidance to the attorney general. And there would be no such danger if the OLC guidance provided for a sealed indictment, such that the question of whether prosecution is warranted could be resolved now, and the timing of prosecution could be tabled — for the president sake, and the country’s — until the end of Trump’s term (or terms).
This would have had no bearing on Congress’s ability to consider impeachment.
It would also have allowed for internal Justice Department deliberation over the law of obstruction. Right now, the report has been publicized when it should not have been. Moreover, Attorney General Barr had to know that if he had tinkered with the report’s legal analysis, this would have resulted in cries that he was protecting the president, so he had to stay his hand. As a result, the Mueller report’s construction of federal obstruction law appears to stand as a definitive Justice Department position, even though Mueller’s interpretation is controversial — the attorney general has indicated that he and the deputy attorney general have disagreements with it; I suspect OLC would have qualms, too.
A live debate over the correct construction of unsettled law, or its novel application, is something the Justice Department is supposed to sort out internally before publicizing a voluminous set of allegations. Here, the special counsel’s legal argument almost surely does not reflect the Justice Department’s position.
But the politics have landed us in the place, not the law. Democrats and their echo chamber have insisted that Mueller must write a report because the special-counsel regulations require one. Yet the same regulations require the report to be confidential: just between the special counsel and the attorney general, to resemble how charging decisions are always made in the Justice Department — non-publicly, by prosecutors and their supervisors. If Barr had followed those supposedly binding federal regulations, House Democrats would already have impeached him — just as they now ridiculously propose to hold him in contempt for redacting from Mueller’s report grand-jury information he is legally obligated by congressional statute to withhold.
The closer you look at this fiasco, the worse it seems.