Congress

This obscure 1973 memo kept Mueller from considering a Trump indictment

The memo itself is not law, but it is the Justice Department's binding interpretation of law governing its own conduct

Special counsel Robert Mueller walks with his wife Ann Mueller on March 24, 2019 in Washington, DC. Special counsel Robert Mueller has delivered his report on alleged Russian meddling in the 2016 presidential election to Attorney General William Barr. (Tasos Katopodis/Getty Images)

The obscure government memorandum that Special Counsel Robert S. Mueller III says prevented him from pursuing criminal charges against President Donald Trump points at one avenue for dealing with a misbehaving president: impeachment.

During his first public remarks since taking over the Russia investigation two years ago, Mueller made clear that he never considered indicting Trump, regardless of the findings of his investigation, partially because a 1973 Office of Legal Counsel memorandum prevented him from doing so.

[‘Case closed!’ Trump declares, even as Mueller fires warning shot on obstruction]

That memorandum, issued in the midst of the Watergate scandal, meant that “charging the president with a crime was therefore not an option we could consider,” Mueller said Wednesday. The memo itself is not law, but it is the Justice Department's binding interpretation of law governing its own conduct.

That put the special counsel’s office in the position that it could not determine whether the president committed the crime of obstruction of justice. Still, Mueller reiterated that his probe did not necessarily exonerate Trump, as the president has claimed.

[Mueller: ‘The report is my testimony’]

“As set forth in our report, after that investigation, if we had confidence that the president clearly did not commit a crime, we would have said that,” Mueller said. “We did not, however, make a determination as to whether the president did commit a crime.”

A Justice Department statement reiterated that Attorney General William Barr had said the special counsel had not relied solely on the OLC memorandum in making his decision.

“The Attorney General has previously stated that the Special Counsel repeatedly affirmed that he was not saying that, but for the OLC opinion, he would have found the President obstructed justice,” the statement said. “The Special Counsel’s report and his statement today made clear that the office concluded it would not reach a determination – one way or the other – about whether the President committed a crime. There is no conflict between these statements.”

The memorandum argued the prosecution of a sitting president would “unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions,” and violate the separation of powers.

Instead of allowing a criminal case to proceed against a president, both the original memo and a 2000 re-examining of the issue offered impeachment as a solution for a president accused of wrongdoing.

[Mueller increases pressure on some Democrats to move toward impeachment]

“While the impeachment process might also, of course, hinder the President’s performance of his duties, the process may be initiated and maintained only by politically accountable legislative officials,” the 2000 memo said.

Some observers picked up on that nuance Wednesday, including Michigan Rep. Justin Amash, the sole Republican in Congress calling for impeachment proceedings.

“The ball is in our court, Congress,” Amash tweeted Wednesday in response to Mueller’s statement.

Jack Sharman, who served as counsel to the House Financial Services Committee during the Whitewater investigation, said the Mueller report, including allegations that Trump had attempted to curtail and control the probe, seemed to pass the decision on next steps to Congress.

“I think [the ball] is clearly not with Mr. Mueller, he seems to be quite clear about that,” said Sharman, a partner at Lightfoot Franklin & White LLC. “As a practical and constitutional matter, if there is a ball it is certainly in the court of the legislative branch.”

“What [Mueller] had to deal with was a twofold oddity. One was a very unusual potential defendant and a peculiar policy applying to that particular defendant,” Sharman added. “It really circumscribed his range of motion, so to speak.”

Mueller’s report could have simply cited the OLC memorandums and ended the analysis there. Instead, it delved into the constitutional and legal issues surrounding the limits of presidential power, and where congressional power takes over, Sharman said.

Barr did not wade into those constitutional issues, preferring his own analysis that the president’s conduct did not meet the elements of obstruction of justice.

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