



For those who hoped that Robert Mueller’s first public comments since his report was released would do what it failed to – free us from a demagogue who has taken American democracy hostage – Wednesday must have come as a disappointment. If Mueller’s parting words as special counsel had a familiar ring, it is because they echoed, often verbatim, statements that appear in his lengthy report.

And yet in his characteristically restrained manner Mueller did, I believe, seek to set the record straight on his report’s most contested conclusion:

“If we had had confidence that the president clearly did not commit a crime, we would have said so. We did not, however, make a determination as to whether the president did commit a crime.”

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In the minds of many, the report’s conditional form, “If we had had confidence …”, suggested that Mueller and his team had failed to reach closure on whether Donald Trump had, in fact, obstructed justice. The language bespoke ambivalence – some actions by the president supported a finding of obstruction, others did not. The evidence was not dispositive. Reasonable persons could reach different conclusions.

This is precisely how the attorney general, William Barr, spun the report. Claiming to have carefully reviewed the full 448 pages of findings, Barr announced that the report did not make a case for obstruction. No matter that nothing in the Mueller report could possibly have led Barr to conclude otherwise. His memo of 8 June 2018, when Barr was essentially lobbying to replace Jeff Sessions as head of the justice department, makes clear that the would-be attorney general was not about to endorse Mueller’s findings. Indeed, that’s why he was chosen for the job.

The memo, noted by the press but barely analyzed, makes for extraordinary reading. Over 18 single-spaced pages, Barr attacks Mueller’s “Obstruction” Theory – the scare quotes appear in the original – as “fatally flawed” and “legally unsupportable”, liable to do “lasting damage to the presidency”. For Barr, James Comey’s firing was legally irrelevant, as would have been the ordered firing of Mueller. Indeed, no firing decision by the president – even if designed to derail an investigation of his own alleged crimes – can possibly qualify as obstruction for the simple reason that the president’s powers over such matters are plenary.

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And so, when Barr concluded, in his four-page memo on 24 March, that the Mueller investigation failed to support a case for obstruction, he had not, as some have suggested, caved in to pressure from the White House. He was simply repeating a conclusion he had boldly framed 10 months before the ink had dried on special counsel’s report.

Alas, the report, once Barr permitted its released, appeared not to directly challenge this highly tendentious spin. By framing his conclusions in a conditional – “If we had had confidence” – Mueller let stand the notion that the evidence pointed in different directions and that no definitive conclusion could be reached on the matter.

On Wednesday, Mueller sought to correct matters – without actually saying anything new. In an age of hysterical megaphoning, Mueller’s muted messaging sounded almost quaint. So what did we hear? Nothing we hadn’t heard before – if we’ve been listening closely. But have we?

Mueller reminded us that his report “did not make a determination” as to whether the president committed a crime, but not because the evidence wasn’t there. It was, and in abundance. The only reason Mueller did not seek indictment was because the special counsel’s office “is part of the Department of Justice, and by regulation, was bound by that department policy”. That policy holds that a president “cannot be charged with a federal crime while he is in office”. Indicting the president was therefore “not an option we could consider”.

This stunning statement was all there in the report, but it bears repeating. The only thing standing between Trump and an indictment is his status as president. The special counsel’s refusal to take a position on the president’s criminality had nothing to do with the quality of his evidence or the soundness of his theory. It merely reflected a stubborn, if untested, constitutional barrier to prosecution. No wonder more than 400 former federal prosecutors have signed an open letter saying Trump would face “multiple felony charges for obstruction of justice” if he were a private citizen. Their conclusion follows directly from Mueller himself.

Then there is Mueller’s parting statement: “The constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.” However elliptical the formulation, the message resonated with three more Democratic presidential hopefuls, who on Wednesday announced their support of impeachment hearings against Trump.

Whether it is politically wise for the Democrats to seek Trump’s removal is an open question. Such political calculations appear foreign to Mueller. But on Wednesday he repeated his clear belief that it is their responsibility to follow the process that the constitution dictates.

Lawrence Douglas is the James J Grosfeld professor of law, jurisprudence and social thought, at Amherst College, Massachusetts



