Democrats in Congress want to question special counsel Robert S. Mueller III about his investigation into links between President Trump’s campaign and Russia and whether Trump obstructed justice. Given that the report is 448 pages long, one might legitimately question whether summoning Mueller to Capitol Hill is really necessary or whether Democrats are merely seeking an opportunity for partisan grandstanding.
But it is necessary. Voluminous and detailed as Mueller’s report may be, it fails to offer a satisfying justification for one of the special counsel’s most momentous decisions: his refusal to make a “traditional prosecutorial judgment” about whether Trump committed the crime of obstruction of justice. Mueller declined to take a position on that question despite the fact that his report details what it calls “multiple acts by the president that were capable of exerting undue influence over law enforcement investigations.”
The paragraph in which Mueller summarizes his non-decision is as clear as mud. The report says that “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. Accordingly, while this report does not conclude that the president committed a crime, it also does not exonerate him.”
The report contains additional discussion of how Mueller reached this complicated conclusion. In one passage, it refers to a long-standing opinion by the Justice Department’s Office of Legal Counsel that a sitting president may not be indicted, a controversial legal conclusion Mueller said he accepted. Given that, the report suggests that even accusing a president of a crime would raise fairness issues because he wouldn’t have an opportunity to defend himself in a court of law. Also, it “could carry consequences that extend beyond the realm of criminal justice.”
But if it’s unfair to accuse a president who cannot be indicted of a crime, why is it fair for Mueller to make other judgments about Trump’s conduct? In its handling of individual actions by the president, the report is quite judgmental.
For example, in discussing Trump’s attempt to fire Mueller himself, an idea he later abandoned, the report says: “Substantial evidence indicates that the president's attempts to remove the special counsel were linked to the special counsel's oversight of investigations that involved the president's conduct — and, most immediately, to reports that the president was being investigated for potential obstruction of justice.”
Congress has every right to ask Mueller to explain the ambiguities in his report. He should be asked about his reaction to the decision of Atty. Gen. William Barr and Deputy Atty. Gen. Rod Rosenstein to decide on their own that the evidence Mueller adduced “is not sufficient to establish that the president committed an obstruction-of-justice offense.” Barr added that they made that decision without regard to the issue of whether a sitting president could be indicted.
If Barr and Rosenstein were able to make a judgment on whether Trump obstructed justice, why couldn’t Mueller?