Tuesday, April 23, 2019
To put things in context, we have been aware since the days of Watergate that the legal question of indicting a sitting president — and by that I mean bringing formal criminal charges — is fraught. In fact, according to Justice Department guidelines, such an indictment isn’t permitted because it would undermine the capacity of the executive branch to perform its constitutionally assigned functions. Robert Mueller, a by-the-book kind of prosecutor if there ever was one, hewed to this established policy while formulating the results of his almost two-year long investigation into Russian meddling in our 2016 presidential election.
This tale of non-indictability is the beginning and end of the story in most of the news coverage of why Mueller chose not to charge President Trump with obstruction of justice for his interference with an ongoing federal investigation. But there is more to it than that.
Some coverage does go further and points out that Robert Mueller takes the opportunity in his report to refute the theory — championed by Attorney General William Barr and others — that it is indeed legally impossible for the president of the United States to obstruct justice. Good for him.
Barr’s expansive reading of executive power ignores the role that “corrupt intent” plays in determining the criminality of a presidential act. If such a twisted doctrine were upheld, it would permit, say, the president to trade get-out-of-jail pardons for cash on the barrelhead. Such a reading of the constitution, one which places any president above the law, is little more than a prescription for tyranny.
But Robert Mueller goes beyond simply adhering to Justice Department regulations concerning indictments and beyond refuting Barr’s dangerous constitutional interpretation of executive power in his treatment of the question of obstruction of justice. He could have, if had wanted to, included an opinion that the president had committed obstruction of justice even while he refrained from issuing a criminal indictment. This threading-the-needle is the path that many Trump opponents had hoped for. It was certainly at the top of my list.
So why did Mueller choose to hedge his bets and take this ambiguous path? The answer in one word is “fairness.” As the Mueller explains on page 2 of volume 2 of his report: “Fairness concerns counseled against potentially reaching that judgment when no charges can be brought.”
And why would it be unfair to make claims of criminal behavior absent the ability to bring formal charges? Mueller continues,
“[t]he ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor’s judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator. “
In other words, in this analysis, although the protection of the president from criminal indictment serves the constitutional purpose of allowing the executive branch to operate free from the inevitable legal entanglement that it would imply, it is, at least in Mueller’s mind, a personal disadvantage for the president in these circumstances.
Take a moment and let that sink in: Robert Mueller believes that freedom from criminal indictment can, at times, be a personal liability since it makes it impossible to defends one’s reputation against damaging charges in open court. In Mueller’s opinion, charging the president in the report, but not through due legal process, would subvert the president’s right to his clear his name of accusations leveled against him.
So, ultimately, the Special Counsel’s decision not to declare the president’s efforts at obstruction as crimes had to do with Mueller’s commitment to fairplay and to the ability of someone under legal scrutiny to defend his reputation. This was not a conclusion I expected.
There are two glaring ironies at play here. The first has to do with the fact that Robert Mueller appears to be more dedicated to Donald Trump’s ability to protect his good name than the president himself, at least in practice. It’s hard to think of any living politician more disreputable or anyone holding a position of public office who has conducted himself with such unabashed disregard to standards of moral rectitude.
The second irony in Mueller’s taking up Trump’s cause in this way is even more disturbing. While Mueller inhabits a civil world of due process in which the right of suspected criminals to defend their reputations must be preserved, Donald Trump lives in a thuggish world of brute power where adversaries are to be spared no quarter and dispatched by any means necessary, including nefarious ones.
The implication here is startling: Donald Trump has spent the better part of the last 23 months smearing the reputation of Robert Mueller with insults and baseless lies, the very Robert Mueller who, it turns out, was busy making sure that Donald Trump would not have his reputation sullied unfairly. If there is a better example of turning the other cheek in American political history, it escapes me.
All this said, I’m not exactly sure how I feel about Mueller’s decision not to present clear claims of obstruction of justice in his report even in spite of his inability to indict Trump. Such declarations could have gone a long way toward helping to clarify the ongoing public debate. In addition, a forthright statement of Trump’s criminality could have provided additional impetus to the Congressional investigations underway that could have helped propel them beyond mere impeachment of the president in the House to the possibility of his conviction in the Senate.
It may very well be that Robert Mueller’s commitment to fairplay has made it more difficult to remove Donald Trump from office before his term is up. But, in any event, it has illuminated for me the central moral question presented by the Trump administration I alluded to at the start.
We are all witnesses to an unfolding battle which pits an age-old, corrupt form of politics rooted in the exercise of raw power, as exemplified by Donald Trump, against an enlightened political system committed to justice and fairplay, as exemplified by Robert Mueller.
Although I believe that Mueller’s decision to err on the side of fairness may prove to be a short-term tactical mistake, in the long run I feel that it will be seen as a turning point for distinguishing the mobster politics of Donald Trump from the legitimate exercise of political power based in law. This may very well be what, in Lincoln’s words, the better angels of our nature demand. It appears that Robert Mueller may have heard their call.