When Attorney General William Barr released his 4-page summary of the Mueller Report, many were perplexed by Mueller’s lack of a definitive stance on obstruction. In one of the few glimpses of the actual report, Mueller stated “while this report does not conclude that the President committed a crime, it also does not exonerate him.” Former US Attorney for the District of Columbia Laura Coates captured the ensuing bewilderment in an opinion piece on CNN titled Mueller’s resounding ‘maybe’ is a disservice. In that piece, Coates asserts:

Without more context, Mueller’s assessment that the report neither condemns nor exonerates him on the issue of obstruction appears to border on dereliction of duty precisely because he was tasked, in part, with investigating that very question. Mueller’s answer appears to be a resounding and wholly unsatisfying “maybe” that simultaneously acts as both a Sword of Damocles over President Donald Trump and the electorate’s belief in the notion that no one is above the law.

With the release of the full — albeit redacted — report, we finally got to see Mueller’s reasons for not delivering any indictments on obstruction. Excerpts of the original text are included here along with key takeaways:

First, a traditional prosecution or declination decision entails a binary determination to initiate or decline a prosecution, but we determined not to make a traditional prosecutorial judgment. The Office of Legal Counsel (OLC) has issued an opinion finding that “the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions” in violation of the constitutional separation of powers.” Given the role of the Special Counsel as an attorney in the Department of Justice and the framework of the Special Counsel regulations, see 28 U.S.C. § 515; 28 C.F.R. § 600.7(a), this Office accepted OLC’s legal conclusion for the purpose of exercising prosecutorial jurisdiction. And apart from OLC’s constitutional view, we recognized that 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.

Takeaway: The Office of Legal Counsel has opined that a sitting President cannot be indicted on criminal charges as this is a violation of the constitutional separation of powers. Mueller accepted this reasoning.

Second, while the OLC opinion concludes that a sitting President may not be prosecuted, it recognizes that a criminal investigation during the President’s term is permissible. The OLC opinion also recognizes that a President does not have immunity after he leaves office. And if individuals other than the President committed an obstruction offense, they may be prosecuted at this time. Given those considerations, the facts known to us, and the strong public interest in safeguarding the integrity of the criminal justice system, we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.

Takeaway: While a sitting President cannot be indicted, the President can still be investigated, not least because the President’s immunity vanishes after the President leaves office.

Third, we considered whether to evaluate the conduct we investigated under the Justice Manual standards governing prosecution and declination decisions, but we determined not to apply an approach that could potentially result in a judgment that the President committed crimes. The threshold step under the Justice Manual standards is to assess whether a person’s conduct “constitutes a federal offense.” U.S. Dep’t of Justice, Justice Manual § 9–27.220 (2018) (Justice Manual). 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, 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.

Takeaway: Mueller is not even allowed to say if he would indict him because the President would not be able formally defend himself as he could in an actual trial.

The concerns about the fairness of such a determination would be heightened in the case of a sitting President, where a federal prosecutor’s accusation of a crime, even in an internal report, could carry consequences that extend beyond the realm of criminal justice. OLC noted similar concerns about sealed indictments. Even if an indictment were sealed during the President’s term, OLC reasoned, “it would be very difficult to preserve [an indictment’s] secrecy,” and if an indictment became public, “[t]he stigma and opprobrium” could imperil the President’s ability to govern.” Although a prosecutor’s internal report would not represent a formal public accusation akin to an indictment, the possibility of the report’s public disclosure and the absence of a neutral adjudicatory forum to review its findings counseled against potentially determining that the person’s conduct constitutes a federal offense.” Justice Manual & 9–27.220.

Takeaway: A sealed indictment for the duration of the President’s term or an otherwise internal-only accusation of a crime is not viable because of the risk of the accusation becoming public, at which point the situation becomes similar to one discussed in the previous paragraph.

Fourth, 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. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

Takeaway: The last sentence of this paragraph is the famous line that Barr quoted in his summary. This time, we have all the context. When Mueller says that the report “does not conclude that the President committed a crime,” it’s not due to some uncertainty about the evidence. It’s the last sentence in a series of paragraphs that thoroughly explain why Mueller doesn’t believe he has the authority to accuse the President of a crime. Somewhat surprisingly, Mueller takes it even one step further by saying that if the President were innocent, he would have said so.

Make no mistake. There is no uncertainty here. Mueller was never going to indict the President. The only reason there was ever any uncertainty is because Barr published that sentence without context.

Let’s summarize where we’re at so far. Mueller has said:

I can’t charge the President with a crime because I’m not allowed to do that.

I’m not even allowed to say if I would charge him if I could.

If he was definitely innocent, I would say so, and I’m not.

The fact that Mueller went out of his way to include that last point has led many to believe this is his way of telling us that he would have delivered the indictments if he could. In other words, Mueller is interpreted as saying:

I’m not allowed to say he’s guilty, but I’m telling you he’s not innocent.

One sentence, however, seems to make things a bit less clear:

The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred.

The presence of those four bold words slightly changes the meaning of that sentence. He’s not necessarily saying that the evidence itself prevents him from making a determination of innocence. He’s saying there are issues with the evidence which prevent him from making such a determination. What issues? A subsection titled “Overarching factual issues” appearing not long after the previous excerpts appears to detail what those issues were:

Several features of the conduct we investigated distinguish it from typical obstruction-of-justice cases. First, the investigation concerned the President, and some of his actions, such as firing the FBI director, involved facially lawful acts within his Article II authority, which raises constitutional issues discussed below. At the same time, the President’s position as the head of the Executive Branch provided him with unique and powerful means of influencing official proceedings, subordinate officers, and potential witnesses — all of which is relevant to a potential obstruction-of-justice analysis.

Takeaway: This brand of obstruction is more complicated than others because it involves actions the President is legally allowed to make. However, this is a consequence of the President’s immense power and “with great power comes great responsibility.”

Second, unlike cases in which a subject engages in obstruction of justice to cover up a crime, the evidence we obtained did not establish that the President was involved in an underlying crime related to Russian election interference. Although the obstruction statutes do not require proof of such a crime, the absence of that evidence affects the analysis of the President’s intent and requires consideration of other possible motives for his conduct.

Takeaway: The President didn’t actually commit a crime with respect to Russian interference. While this does not mean he can’t obstruct justice, it does change our analyses of his intentions.

Third, many of the President’s acts directed at witnesses, including discouragement of cooperation with the government and suggestions of possible future pardons, took place in public view. That circumstance is unusual, but no principle of law excludes public acts from the reach of the obstruction laws. If the likely effect of public acts is to influence witnesses or alter their testimony, the harm to the justice system’s integrity is the same.

Takeaway: Many of the President’s actions occurred in public view. Again, this doesn’t mean he can’t obstruct justice, but it does inform our view of his intentions.

Each of these last three points raises a complication with respect to obstruction, though none of them actually prevent a determination of such. Mueller said there were issues that prevented him from making a determination, however, when he actually lists those issues, he essentially says they’re non-factors. The markedly neutral way in which this is all presented makes it very difficult to determine where Mueller personally stands. Is he actually unsure if the evidence rises to the level of obstruction, or is he subtly playing devil’s advocate with himself to reinforce a theoretical case for obstruction?

Lastly, Mueller addresses the controversy surrounding the question of whether or not a sitting President can even commit obstruction of justice, something Barr had plenty to talk about in an unsolicited 19-page memo he wrote prior to becoming the Attorney General. Mueller writes:

With respect to whether the President can be found to have obstructed justice by exercising his powers under Article II of the Constitution, we concluded that Congress has authority to prohibit a President’s corrupt use of his authority in order to protect the integrity of the administration of justice. Under applicable Supreme Court precedent, the Constitution does not categorically and permanently immunize a President for obstructing justice through the use of his Article II powers….The conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.

Takeaway: Yes, the President can obstruct justice. While Mueller himself cannot indict him as previously discussed, Congress has the power to hold him legally accountable.

Some have characterized this as a subtle way of telling Congress “your turn.” While I think that much is correct, I believe we need to be very careful when reading further into it. That the text is ambiguous enough that it could be interpreted multiple ways is not an accident at all. It was carefully designed that way due to the limitations that Mueller faced.

In a way, this ambiguity has actually given Mueller a layer of protection. By solely putting the facts on the table, he has protected his image as an impartial investigator and he has secured the long-term legitimacy of his report. He did the investigating, now he’s letting the politicians do the politics. No matter what the ultimate outcome is, it will be very difficult for someone to point to the Mueller Report and make a credible argument that Mueller was somehow compromised.

Even if Mueller believed the President’s actions rose to level of obstruction, there was no need to deliver any indictments. Thrusting himself into the legal gray area of indicting a sitting President would have been a massive distraction. There’s no precedent for doing so, and with Congress having the power to impeach, there’s no need for him to try anyway. Given all this, I believe we should refrain from indulging in overly speculative characterizations of the report (all the “Mueller is telling us to impeach!” talk) — not because I think they’re wrong, but because there’s no need for that. Mueller gave us a trove of evidence regarding Russian interference and the President’s actions in response to an investigation of such. It speaks loudly for itself.