Earlier today, in commenting on the Mueller report, I wrote:
Mueller says 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.” By the same token, if Mueller had confidence that Trump clearly did commit obstruction of justice, he would also so state. It seems obvious that he lacked that confidence.
This seems self-evident. However, one can read the Mueller report as saying that there were only two possible verdicts the special counsel might render: exonerated or not exonerated. In other words, Mueller was not willing, whatever the evidence showed, to say that the sitting president committed a crime.
At the outset of Volume II of the report, the volume dealing with possible obstruction of justice, Team Mueller states that the special counsel “determined not to apply an approach that could potentially result in a judgment that the President committed crimes.” Why? Supposedly because (1) a sitting president cannot be indicted; therefore (2) a report that found Trump committed crimes would leave the president without recourse to the courts to clear his name.
Do I believe Mueller when he indicates that a finding that Trump committed crimes was off-the-table regardless of the evidence? No, for two reasons.
First, it just seems inconceivable that if Mueller believed he had a clear case of obstruction of justice, he would decline to so state. For one thing, the public would have a right to know that the investigation yielded that conclusion. For another, the notion that Trump would be defenseless against this claim is absurd. He would have endless opportunities to dispute Mueller’s conclusion in the court of public opinion, the same forum in which Mueller’s view would be aired.
Second, the report states that “the evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment.” I take this to mean that Mueller’s inability to say Trump obstructed justice isn’t based on a decision at the outset that he would decline to find Trump guilty of a crime no matter what the evidence showed and the law provided. Instead, Mueller sees “difficult issues” — e.g., those surrounding the president’s constitutional powers — that stand in the way of concluding that Trump clearly did (or did not) commit the crime of obstruction.
It is the existence of these issues, not pure forbearance, that I think prevented Mueller from saying Trump is guilty of obstruction.
The “difficult issues” do, indeed, stand in the way of a finding of obstruction. But that’s a subject for another post.