When a judge asks a defendant, “How do you plead?” the answer is either “guilty” or “not guilty” – not “not guilty but not exonerated.”

In the United States, we don’t let prosecutors publicly blemish the reputations of law-abiding citizens for actions that fall short of criminality. At least we didn’t until special counsel Robert Mueller.

The news that Mueller wrote a March 27 letter to Attorney General William Barr complaining about the nature or spirit, or some other imponderable, of Barr’s pre-release summary of Mueller’s report – but not the summary’s factual accuracy – has news outlets chirping that Barr is in big trouble, but testifying to the Senate Judiciary Committee on Wednesday he stated that Mueller’s concerns centered on inaccurate press coverage.

After he spent $25 million over 22 months, we are told that in the end Mueller’s hands were tied by a Justice Department policy holding that a sitting President can’t be indicted. But you don’t have to indict to cite evidence of a presidential crime and identify it as such. And Mueller did not do so, because such evidence does not exist.

No ‘Traditional Prosecutorial Judgment’

The complexity and subtlety of the activities Mueller and his associates examined don’t reduce their ability to describe a crime if they found one. Imagine, for the sake of comparison, that a President was in office who stabbed to death a member of his staff and hid the body within the White House residence.

After an investigation, would a report be issued that said, “we determined not to make a traditional prosecutorial judgment” and “we did not draw ultimate conclusions about the President’s conduct”?

Would the investigative team, after examining the body and the bloody knife and its fingerprints, add that “At the same time, if we had confidence after a thorough investigation of the facts that the President clearly did not commit homicide, we would so state” – a wink to the opposition party controlling the House of Representatives that they should do their own investigating with an eye toward impeachment?

Substitute “obstruction of justice” for “homicide” and you have the Mueller report, verbatim.

Obviously, any investigator issuing statements like those in such circumstances would be a laughing stock. What should and would happen in that case is that a report would say: “The President has commited a terrible crime. We believe that under the Constitution the nation’s Chief Executive can’t be indicted while in office – so the ball’s in your court, Members of Congress.”

Or it would say they failed to find sufficient compelling evidence.

Public Confusion and Distrust

Mueller’s letter to Barr, according to the Washington Post, complained, “There is now public confusion about critical aspects of the results of our investigation” which “threatens to undermine a central purpose for which the department appointed the special counsel: To assure full public confidence in the outcome of the investigations.”

Mueller, though, is the one who has sown public confusion and distrust. He wants to hand Congress ammunition to use against Trump without a bill of sale showing it was he who sold it to them. As Rudy Giuliani, serving as an attorney to the President, said Tuesday night of the Mueller letter to Barr, “If he didn’t want confusion, he should have made a decision. He was made special counsel to make decisions,” but according to Giuliani, “there was no prosecutable obstruction case because there was no underlying crime and no obstruction.”

The gray area is a very safe place for Mueller. On the one hand, if he did conclude the President obstructed justice and Trump is ultimately exonorated, it’s a huge embarrassment for the ex-FBI director. It would, in fact, define his entire career in the most negative fashion. But on the other hand, if Mueller declared him innocent, it means he spent years wasting tens of millions of dollars harrassing a law-abiding President.

When it comes to “guilty” or “not guilty” there is no gray, nor should there be. A President is not above the law, but he is also not outside the law’s protection of those innocent until proven guilty. With his unauthorized “not guilty but not exonerated” assertion, Robert Mueller has, in effect, left lawyering, and the rules prosecutors must follow, and made himself stealth director of a lavishly-funded team of political opposition researchers eager to help House Democrats impeach Trump – or defeat him at the polls in 2020.

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