Mueller on obstruction of justice: It’s complicated. [UPDATED]

Robert Mueller copped out when he declined to determine whether President Trump obstructed justice. He left it to the Attorney General to make that call, even though the rationale for having a special counsel was that Trump administration officials couldn’t be trusted to decide whether their boss committed crimes.

The issuance of Mueller’s report does nothing to mitigate the cop-out. According to the report, the issue of obstruction of justice was complicated by the fact that, under Department of Justice practice, a sitting president cannot be charged with a crime.

But that’s no reason why the special counsel can’t determine whether the president committed a crime. If the facts and the law supported such a determination, Mueller could have made it, while stating that he isn’t recommending prosecution because a sitting president can’t be prosecuted.

Mueller’s report also notes the complication that arises from a president’s broad constitutional authority to give orders to other government employees. Well, yeah, the president does have broad constitutional authority to run the executive branch. That’s one of the important, good defenses Trump has to an obstruction claim based, say, on his firing of James Comey.

I don’t think the president’s broad authority complicates the task of determining whether Trump committed obstruction of justice. Arguably, it simplifies that task.

But complicated or not, it was Mueller’s job, as he saw it, to investigate the obstruction issue. Having performed the investigation, it was then his job to conclude whether obstruction occurred. But he demurred.

I think it’s fair to conclude that Mueller demurred not because the issue was complicated, but because he didn’t have a good case of obstruction.

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. [But see the counterargument to this that I discuss here.] It seems obvious that he lacked that confidence.

In our system, when the fact finder lacks confidence that a crime has been committed, the party under investigation is deemed not guilty. Mueller has effectively deemed Trump not guilty of obstruction of justice

One more point. Mueller’s report complains about President Trump’s answers to written questions. He considers them inadequate and believes Trump was obligated to testify in person.

In decades of practicing law, I don’t think I ever found the first response to interrogatories of an opposing party “adequate.” But there’s a remedy one can pursue when interrogatory answers are inadequate and/or when a witness won’t appear for a deposition. You can go to a judge and seek to compel the discovery you want.

Mueller didn’t do that here. He says doing so would have created delay and, in any case, he felt he already understood the facts well enough without better and/or “live” answers from Trump.

Fine. But dissatisfaction with Trump’s approach to Mueller’s discovery efforts is of no significance when the justice system offers a remedy Mueller didn’t pursue. And his dissatisfaction certainly can’t form any part of a basis for finding obstruction of justice under these circumstances.

UPDATE: This post should be read in conjunction with my subsequent post called: “DID MUELLER PREDETERMINE NOT TO SAY TRUMP COMMITTED A CRIME?” That second post is based on a closer reading of Mueller’s report than this initial one.

My view of the matter is still the same, but there is a counterargument I didn’t discuss above. The existence of the counterargument caused me to change the title and the content of this post slightly.

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