Home News Mueller Left Open the Door to Charging Trump After He Leaves Office – The New York Times

Mueller Left Open the Door to Charging Trump After He Leaves Office – The New York Times

40 min read

WASHINGTON — For nearly two years, President Trump’s lawyers and defenders have argued that it was impossible for him to illegally obstruct the Russia investigation, no matter his intentions, because he has full authority over federal law enforcement as head of the executive branch.

But in his highly anticipated report, Robert S. Mueller III rejected that sweeping view of executive power. Mr. Mueller’s team systematically dissected and repudiated such arguments, concluding over more than a dozen of the report’s 448 pages that obstruction laws did indeed limit how Mr. Trump could use his presidential 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,” they wrote.

Still, Mr. Mueller concluded that it would be inappropriate for now for prosecutors to make a decision — one way or the other — because analyzing the evidence “could potentially result in a judgment that the president committed crimes.” He reasoned that the Justice Department has for a half-century interpreted the Constitution as barring the indictment of a sitting president, so Mr. Trump could not get a trial and a chance to clear his name while he is running the country.

The special counsel’s rationale left the door open to the possibility that after Mr. Trump leaves office, prosecutors could re-examine the evidence Mr. Mueller gathered and charge the president. Attorney General William P. Barr tried to slam that door shut last month when he announced that in his view, the evidence did not support charging Mr. Trump regardless of any constitutional issues about charging sitting presidents.

Mr. Barr did not detail his thinking other than to note that Mr. Mueller had not found sufficient evidence to prove a criminal conspiracy between the Trump campaign and Russia. But months before the president nominated him as attorney general, Mr. Barr wrote a lengthy memo for the Trump administration laying out the very arguments that Mr. Mueller rejected.

Mr. Mueller’s report, which Mr. Barr made public on Thursday with some deletions, laid out a wide-ranging effort by Mr. Trump to undermine the Russia investigation, painting a damning portrait of a president determined to wield his power to protect himself and his associates.

Many of the 11 episodes Mr. Mueller detailed had been reported in the news media. The president consistently sought to install a loyalist to oversee the investigation; tried to pressure Attorney General Jeff Sessions to retake control of the inquiry after he recused himself; and asked the F.B.I. director to end the investigation into his first national security adviser.

Mr. Trump pressured Donald F. McGahn II, his onetime White House counsel, to fire the special counsel.CreditDoug Mills/The New York Times

Mr. Mueller also revealed new presidential attempts to thwart the inquiry. In mid-2017, Mr. Trump enlisted Corey Lewandowski, his former campaign manager, in another bid to impede the inquiry. Mr. Trump wanted Mr. Sessions to declare that the special counsel’s investigation was “very unfair” to the president and asked Mr. Lewandowski to convey the message. Mr. Lewandowski never directly spoke to the attorney general about the request, according to the report.

Mr. Mueller relied heavily on Mr. Trump’s White House counsel, Donald F. McGahn II, who told investigators about how Mr. Trump tried to have him fire Mr. Mueller in June 2017. The report said that Mr. McGahn stopped the effort, “deciding that he would resign rather than trigger what he regarded as a potential Saturday Night Massacre,” a reference to Richard M. Nixon’s firing in 1973 of the special prosecutor who was investigating him. That order, which the top two Justice Department officials resigned over rather than carry out, helped undermine political support for Mr. Nixon among Republicans.

The stark difference between Mr. Mueller’s rationale and the impression Mr. Barr had created last month was a central takeaway from Mr. Mueller’s report. Mr. Barr had not explained why Mr. Mueller declined to decide whether the evidence met the standard for charging Mr. Trump. Instead, he cited a fragment of Mr. Mueller’s rationale in what appears to be a misleading way.

In his letter, Mr. Barr wrote that Mr. Mueller had cited “difficult issues” of law and fact preventing him from deciding the obstruction question. Mr. Barr portrayed that murkiness — though he was not specific — as the barrier to Mr. Mueller’s ability to draw a conclusion “one way or the other.”

In fact, Mr. Mueller’s report contained a subtle but important difference from that impression. The special counsel cited those “difficult issues” as preventing him from exonerating the president of illegal obstruction — not as preventing him from accusing Mr. Trump of that crime.

“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,” Mr. Mueller wrote. “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.”

Instead, Mr. Mueller decided it would be unfair to analyze the evidence for now because it created the risk that he would conclude that Mr. Trump committed a crime with no possibility of a speedy trial to resolve whether that was true.

“An individual who believes he was wrongly accused can use that process to seek to clear his name,” Mr. Mueller wrote. “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.”

He added: “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.”

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