Gabrielle Dolphin, CADC Club President
In the course of investigating Russian interference in the 2016 elections, the President of the United States took actions towards an on-going FBI investigation that raised questions about whether he had obstructed justice.
Criminal investigations usually result in a thumbs up or thumbs down “binary” choice - either charge or don’t charge based on the evidence discovered. We were stunned to learn from the start that no charges would be brought regarding obstructive actions by Trump. Why? Because a sitting President is qualitatively different and cannot be charged.
Mueller had no choice in the matter and said so. The policy blocking a sitting president from being charged dates to President Nixon. In September 1973, in the midst of the Watergate scandal, the DOJ’s office of Legal Counsel said that a criminal case against Nixon “would interfere with the President’s unique official duties, most of which cannot be performed by anyone else.”
Mueller was an employee of the Department of Justice and duty bound to follow established DOJ guidelines. From the outset Mueller’s team acknowledged the limitations imposed on their work stating a) “indicting or criminal prosecution of a sitting President would impermissibly undermine the capacity of the Executive Branch to perform its constitutionally assigned function.”
Mueller went further saying in the interest of fairness, charging a sitting President would deny due process. Due process of course is the constitutional right of every American citizen to have the “state” respect legal rights which include the right to a speedy and public trial.
Why would charging Trump deny him due process? Because there are no courts to which the President can turn for redress. Why? Because our legal system does not assign courts to handle this type of “crime.” Why? Here’s the main point: our Founders made it abundantly clear that it is the sole responsibility of CONGRESSthrough the process of IMPEACHMENT to address presidential abuse of power. The House draws up “articles of impeachment” (indicts) and the Senate holds the trial. Not Mueller, his investigative team, the Attorney General, Supreme Court nor any court in the land has the power, authority and duty to investigate, charge and try presidential abuses of power. The responsibility rests solely with Congress.
Given both legal and constitutional constraints Mueller’s “double-negative” legalese conclusions can be better understood:
“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.” And,
“while this report does NOT state outright “the President did not commit a crime,” it also DOES NOT EXONERATE him.”
How then to proceed?
Mueller’ work began in complicated times, a time where social and political forces challenge and even threaten what remains of our democratic philosophy and institutions. With norms and rules of expected behavior and shared belief falling to the wayside at a record pace, we can only hope our institutions will hold against the daily assault. There will be no going back.
The Special Prosecutor placed his trust in our legal system and the Constitution. He framed his investigation in a way he thought safe and unimpeachable, a path based on Supreme Court precedent that governs “separation of powers.” Mueller gave a somber nod to the fact that only Congress has the Constitutional authority to try and convict a sitting president.
The Mueller team would investigate and turn the investigation over to Congress. The only problem? There was a newly hired Attorney General, William Barr, who took Mueller’s report and, before you and I could look at it, launched his own narrative and conclusion upon the tide of public opinion.
We continue to reel with confusion over Barr’s act of obstruction.
As the investigation began, the President agreed to answer written questions on certain Russia-related topics. He did not agree to provide written answers to questions on obstruction or questions on events during the transition to his inauguration.
The Special Investigator had the authority and legal justification to issue a grand jury subpoena to obtain the President’s testimony, but they chose not to. With Trump’s litigious character, the delay in the investigation was not worth it. Mueller also believed they had enough evidence to understand relevant events and make certain assessments without the President’s testimony. This was based on the significant body of evidence they had already obtained of the President’s actions and public and private statements describing or explaining those actions.