- The Washington Times
Wednesday, May 29, 2019

Special counsel Robert Mueller pointedly said Wednesday he could not exonerate President Trump of criminal wrongdoing but charging him was never an option because of Justice Department regulations.

That undercuts Attorney General William P. Barr, who in summarizing Mr. Mueller’s work had said the special counsel had suggested it wasn’t only department regulations that had saved Mr. Trump from legal jeopardy.

And it put a focus on the regulations themselves, with key Democrats saying they thought the president should face criminal charges given what Mr. Mueller found.

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Mr. Mueller, in a nine-minute statement at Justice Department headquarters, announced he was closing down the special counsel’s office and returning to private life.

He also tried to explain some of the decision-making behind his 448-page report, which continues to roil Washington, and to explain why he described multiple instances of behavior by Mr. Trump that sounded like obstruction of justice, but for which no charges were brought.

“Under long-standing department policy, a president cannot be charged with a federal crime while he is in office. That is unconstitutional,” he said. “Even if the charge is kept under seal and hidden from public view — that too is prohibited.”

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That position is based on the department’s Office of Legal Counsel, essentially the lawyers’ lawyers, who for decades — well before Mr. Trump was even a politician — have said charges are out of bounds.

“Charging the president with a crime was therefore not an option we could consider,” Mr. Mueller said.

That comment undercut Mr. Barr’s claims the president was not charged because his comments did not amount to obstruction.

But a joint statement by Justice Department spokeswoman Kerri Kupec and Peter Carr, a spokesman for Mr. Mueller, disputed that the special counsel contradicted Mr. Barr.

“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 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,” they said.

“There is no conflict between these statements,” the statement continued.

He said investigating a president is allowed, but what happens with the results of that investigation must be left to “a process other than the criminal justice system.”

Rep. Jerrold Nadler, chairman of the House Judiciary Committee, said Mr. Mueller’s findings will fuel his own investigations — but he disagreed with the conclusion that Mr. Trump can’t face charges while in office.

“That policy, in my opinion, is wrong,” Mr. Nadler said.

Both the Constitution and Supreme Court are silent on the issue, leaving the Justice Department guidelines as the only instruction to prosecutors.

Some have questioned the policy, which was adopted by the Office of Legal Counsel in 1973 during the apex of the Watergate scandal. The Justice Department affirmed the policy in 2000 in the wake of Kenneth W. Starr’s investigation into President Bill Clinton.

The OLC argues that charging a sitting president would “constitutionally undermine” the executive’s ability to function.

But the opinion is only a guideline, and legal experts differ on whether it should have tied Mr. Mueller’s hands.

Danielle Brian, executive director of the open government group Project on Government Oversight, said Congress should probe the OLC’s reasoning, particularly when it comes to charging a president in matters such as obstruction.

“As legal counsel to the executive, OLC is naturally biased in favor of helping its client achieve its goals through legal analysis,” she said.

But Steven J. Mulroy, a former federal prosecutor who teaches law at the University of Memphis, said Mr. Mueller didn’t have a choice in this case.

“As an employee of the Department of Justice, Mueller would be bound by Justice Department policy even though a court may decide differently,” he said.

He said if not for the OLC opinion, it is likely the special counsel would have filed charges against the president. Instead, Mr. Mueller detailed numerous instances that appeared to be obstruction.

“If he was convinced there was no evidence of obstruction of justice, he would have said so,” Mr. Mulroy said.

Mr. Mueller did echo the OLC’s argument that it was “unfair” to accuse someone of a crime when that person couldn’t have a chance for exoneration in court.

Mueller is stepping right on the line of saying, ‘but for the OLC guidelines we would be charging the president.’ He doesn’t cross that line, but he comes very close,” Mr. Mulroy said.

Mr. Mueller said he hoped Wednesday’s news conference would be his only time publicly discussing his findings, telling Congress that if lawmakers compel him to testify, they will be largely disappointed.

“The report is my testimony. I would not provide information beyond that which is already public in any appearance before Congress,” he said.

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