Trump Was Never Imperiled- April 16th, 2019

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This essay was originally posted to Smerconish.com on April 16th, 2019.

After a nearly two-year investigation, it turns out that President Donald Trump was never at any risk of a finding of criminal conduct by Special Counsel Robert Mueller. 

That's the stunning conclusion I reach after reading the Mueller Report.

Here is how I get there.

On March 22nd, Mueller delivered his report to Attorney General Bill Barr.  Then, two days later, on March 24, Barr wrote to congressional leadership.  

The 4-page Barr letter said that:

"the Special Counsel considered whether to evaluate the conduct under Department standards governing prosecution and declination decisions but ultimately determined not to make a traditional prosecutorial judgment." 

He suggested that Mueller didn’t and couldn’t reach a conclusion on obstruction because it was such a close call. Barr wrote:

"The Special Counsel's decision to describe the facts of his obstruction investigation without reaching any legal conclusions leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime." 

And then, where Mueller didn't reach a conclusion, Barr did. He wrote: 

 “...and applying the principles of federal prosecution that guide our charging decisions, Deputy Attorney General Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel's investigation is not sufficient to establish that the President committed an obstruction-of-justice offense."

On Thursday, before the report was delivered to Congress and the public, Barr held a press conference at which he said this: 

"As I addressed in my March 24th letter, the Special Counsel did not make a traditional prosecutorial judgment regarding this allegation. Instead, the report recounts ten episodes involving the President and discusses potential legal theories for connecting these actions to elements of an obstruction offense." 

Again, the implication in the Barr letter and the Barr press conference was that Mueller couldn’t make up his mind as to whether the president obstructed justice, so he, Barr, along with Deputy AG Rod Rosenstein acted as tie-breakers.  

But that’s not what happened.

Turns out that Mueller claims it would be unfair to say the president broke the law, as there’ll be no trial where the president could seek exoneration.

This ignores, first, that Mueller was hired to determine whether the president broke the law; second, the Congress needs to know what Mueller thinks; third, the public needs to know what Mueller thinks; fourth, the idea that a president can’t be tried is disputed; and fifth, this president has the ability to defend himself with or without a trial. 

In the report, Mueller wrote this: 

…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…

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.

…we determined not to apply an approach that could potentially result in a judgment that the President committed crimes…

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.

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."

Mueller goes on to say that while the report does not conclude that the president committed a crime, it also does not exonerate him. 

So, Mueller was never going to make a finding of criminal conduct by the president - regardless of what he uncovered.

Mueller would say that the president is not guilty if Mueller thought he is not guilty. After all, that is what he did with regard to collusion. But with regard to obstruction, Mueller did not say the president is not guilty. It seems likely, therefore, that Mueller believes the president is guilty.  

Stunning as it sounds, there was never any chance that Mueller would find the the president broke the law, for both collusion and obstruction. 

So despite 675 days of investigation, 19 lawyers, 40 FBI agents, 2800 subpoenas, and 500 search warrants - the president was never at any risk.