Chris Truax

Opinion contributor

Detailed analysis of the redacted Mueller report that was released Thursday will go on for weeks. But one thing is immediately clear: Attorney General William Barr jumped the gun when he declared last month and again Thursday that special counsel Robert Mueller did not find enough evidence to "establish that the President committed an obstruction-of-justice offense."

First, Barr has form here. Long before he was attorney general or knew any of the facts we know now, he had conclusively decided that it would be impossible for Trump to obstruct justice. So it’s no surprise that his opinion hasn’t changed now that the report is out.

But Mueller and his team came to a different conclusion. While recognizing that “the evidence we obtained about the President's actions and intent presents difficult issues,” they did not conclude that the evidence of obstruction was on the fence and decide to leave the final determination to Barr. Instead, they concluded that, despite the evidence they had uncovered, it would be improper to make a formal finding that the president had violated the law. They made this decision not because they concluded the president was not guilty, but because, under current Department of Justice practice, a sitting president can’t be indicted.

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Mueller’s team offered two reasons for declining to recommend prosecution of the president on obstruction charges. First, “a federal criminal accusation against a sitting President would place burdens on the President's capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct.” Translation: If we make a formal finding that the president violated the law that might interfere with Congress’s impeachment authority.

No ringing endorsement of Trump's innocence

Second, if they did make a decision to prosecute, it would be at least two years and possibly six before the charges could be adjudicated, and that would be unfair to the president personally. “Fairness concerns counseled against potentially reaching that judgment when no charges can be brought. The ordinary means for an individual to respond to an accusation is through a speedy and public trial . . . 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.”

None of this is a ringing endorsement of Trump’s innocence. On the contrary. In Mueller’s own words, “[I]f 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.”

Impeachment is still on the table

In addition, whether Trump committed an actual federal crime does not completely answer the question we must decide. As the report points out, ultimately, it is up to Congress to sanction a sitting president and that determination is more than just a question of whether the president is an actual felon. For example, one of the reasons Barr believes the president did not commit obstruction is that the president’s efforts to interfere with the investigation were not motivated by “corrupt intent.” Rather, he said, Trump was personally upset and believed the investigation was “undermining his presidency, propelled by his political opponents, and fueled by illegal leaks.”

Assuming that is so and that interfering with an investigation for political reasons doesn’t qualify as corrupt intent — a big assumption — that still does not necessarily absolve the president. Even things that fall short of criminality can trigger a congressional investigation or even impeachment proceedings. Whether Trump crossed a line is a call for Congress to make, not Mueller or Barr.

Mueller intended both the American people and Congress to judge the results of his investigation for themselves. That’s why he produced a report that, even with redactions, runs to almost 450 pages. Contrary to the attorney general’s conclusion, the question of whether Trump is guilty of obstructing justice is still very much open.

Chris Truax, an appellate lawyer in San Diego, is on the legal advisory board of Republicans for the Rule of Law.