So many legal and Constitutional issues are raised in Special Counsel Robert Mueller’s report on Russian interference in the 2016 presidential election and on the possibility that President Trump or any of his aides and associates obstructed justice either before or during the Mueller investigation that they can’t possibly be covered adequately in a single post.

There is, however, one set of controversies that can be disposed of fairly easily – at least as this non-lawyer sees it – so that seems as good a place as any to start. That’s whether, having decided not to charge the President specifically with obstruction, Mueller had any business presenting detailed descriptions of Trump actions that could conceivably meet the obstruction standard, much less declaring that 

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, we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent present 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 from such an allegation.”

My verdict: He did.

The trouble critics (including me, in this post written before the redacted version of Mueller’s report was released and his rationale had become public) have had with Mueller’s course of action stems from its contrast with a prosecutor’s standard role in the American legal system. Attorney General William P. Barr himself summarized this role well at the press conference last Thursday he held just before releasing a redacted version of the Mueller report:

The very prosecutorial function and all our powers as prosecutors, including the power to convene grand juries and compulsory process that’s involved there is for one purpose and one purpose only. It’s to determine, yes or no, was alleged conduct criminal or not criminal….”

The main reason, as former federal prosecutor Andrew McCarthy writes, is that it would represent

an outrageous shifting of the burden of proof: The constitutional right of every American to force the government to prove a crime has been committed, rather than to have to prove his or her own innocence.

This is exactly why prosecutors should never speak publicly about the evidence uncovered in an investigation of someone who isn’t charged. The obligation of the prosecutor is to render a judgment about whether there is enough proof to charge a crime. If there is, the prosecutor indicts; if there is not, the prosecutor remains silent.”

Therefore, according to the case against that Mueller exoneration passage, if the Special Counsel

believed there was an obstruction offense, he should have had the courage of his convictions and recommended charging the president. Since he wasn’t convinced there was enough evidence to charge, he should have said he wasn’t recommending charges. Period.

Anything else was — and is — a smear. Worse than that, it flouts the Constitution.”

McCarthy could well be right on Constitutional grounds. But he’s not right on federal law grounds – at least, to date. For the statute creating the office clearly states that “At the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.”

In other words, the Special Counsel is required to explain both decisions to indict objects of his investigation whose conduct was deemed criminal and to pass on object whose conduct was not deemed criminal.

In principle, this explanation requirement doesn’t mandate that the Special Counsel make an exoneration-type request. In fact, in principle, the assumption of innocence doctrine might preclude such aspersion casting.

But arguments like McCarthy’s overlook one big and in fact paramount consideration. A Special Counsel report isn’t always necessarily subject to the  standard procedures for federal prosecutors dealing with potential felony cases like obstruction. The instructions Mueller received upon his appointment by then Acting Attorney General Rod J. Rosenstein authorized him to prosecute federal crimes revealed by his investigation. But they also ordered him to fulfill the other responsibilities of the Special Counsel law, which include delivering the confidential report to the Attorney General.

And the word “confidential” is crucial here. Because, as Barr has correctly stated, as Attorney General, he’s under no obligation to release the any version of the Special Counsel report to anyone, even Members of Congress or Chairs of key Congressional committees. And all Congress specifically is entitled to once the report is completed and submitted is a notification accompanied by “an explanation” whose required contents in turn are minimal at best. No one else is entitled to anything.

It’s true that the Attorney General may release the report to the public “with applicable legal restrictions” (e.g., the redaction standards used by Barr). But he or she is under no requirement to do so.

Since the report was written expressly for the Attorney General’s eyes, it’s easy to understand why Mueller added the “exoneration point.” Even if he took the (reasonable, in this case) liberty of assuming that some substantial version of the report would be made public promptly, his overriding obligations were to present the Attorney General with the results of his investigation, and supply adequate explanations of his decisions both to prosecute and not to prosecute. Choosing his words in anticipation of a Barr decision to go public, however reasonable, would have been completely improper, and possibly illegal.

It’s still arguable that Mueller’s final point about his not considering Mr. Trump exonerated was a gratuitous swipe at the President. But given Mueller’s official audience (not the public, or even the Congress, but the Attorney General), it’s far more legitimate to interpret it as an effort to explain his reasoning – as per the provisions of the Special Counsel law – and to do so in the most complete manner and so as to leave as few questions unanswered as possible.

In this vein, it’s just as legitimate to view the final exoneration point as a message to Barr on the order of, “I didn’t believe I had the goods, but there exist grounds for you to consider the issue still open.”

Strengthening this interpretation: Mueller clearly states that one of his most fundamental operating legal and Constitutional assumptions was accepting, as an employee of the Justice Department, the validity of Justice’s official position that Presidents can’t be indicted while serving their White House terms. The Department’s declared reason: Such an action would unacceptably undermine a President’s ability to carry out his or her Constitutionally defined duties. 

In other words, Mueller appears at least to be telling Barr that, “If our Department permitted indicting a sitting President, I very well may have.” Moreover, the same imperative to present Barr with a detailed description of Mr. Trump’s obstruction-relevant actions also, at least as Mueller explains it, was the primary reason for his decision not to arrive at any indictment conclusion at all – even simply proceeding with this objective in mind could have placed the Special Counsel in the position of assessing that someone had committed a federal offense even though no official charges could be brought, and therefore denying the informally accused at defendant of the right to respond in such a way potentially to clear his or her name through a “speedy and public trial.” 

Moreover, Mueller in my view rightly argued that even the confidential nature of his report to the Attorney General would offer a sitting President precious little protection against the above stigma, given the extreme unlikelihood that the indictment judgment would remain secret.     

All of which leaves two big remaining questions (at least concerning this cluster of issues). First, why wasn’t Mueller more specific and detailed in explaining why he included the “no exoneration” points? Second, why wasn’t Barr (along with Rosenstein, who is now his Deputy) content to base his decision on Justice’s view on indicting a sitting President regardless of the merits?

And flowing from that second question are others: Why did Barr believe that Mueller’s failure to reach any obstruction conclusion “left it” to him to decide “whether conduct in the report constitutes a crime” on the merits of the case, and irrespective of the Constitutional questions? Did he believe that the public interest wouldn’t be served with a cloud hanging over Mr. Trump’s head because he was acquitted simply for procedural reasons? If so, it’s difficult to see why making such a plainly political judgment was his call. But if that was a concern, why did he publicize Mueller’s “no exoneration” conclusion in his initial March 24 letter to the Chairs and Ranking Members of Congress’ Judiciary Committees summarizing the report’s contents – much less include it in the version of the report he released?

But like I said at the beginning, these aren’t my last words on the Mueller Report controversies. Only the first.

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