The Justice Department Office of Legal Counsel has issued two opinions stating that it would be unconstitutional to prosecute a sitting president. Many have challenged the analysis and conclusions of these opinions, but as a Justice Department prosecutor Mueller could not simply disregard them. His report repeatedly made it clear he felt bound by this policy, and he said so again early in his congressional testimony. But that policy had a dramatically different impact on the two different areas of the investigation.
On Russian interference, Mueller’s testimony reiterated the key conclusions of his report: There were multiple contacts between Russians and members of the Trump campaign, the Russians believed they would benefit from a Trump victory, the Trump campaign knew about and welcomed the Russian support, and individuals associated with the campaign lied to conceal their Russian ties. Many of these contacts would amount to “collusion” as commonly understood. But as Mueller emphasized again, the appropriate criminal law term is conspiracy, and his investigation concluded there was insufficient evidence to establish a criminal conspiracy.
When it came to obstruction of justice, of course, Mueller did not reach a similar conclusion. As he said in the report, “if we had confidence ... the President clearly did not commit obstruction of justice, we would so state. Based on the facts and applicable legal standards, however, we are unable to reach that judgment.” Mueller emphasized once again during the hearings that his decision not to make a “traditional prosecutorial judgment” on obstruction was based primarily on the OLC policy about prosecuting a sitting president.
But Wednesday’s hearings highlighted the fact that the OLC policy works only in one direction. The policy does not say a president cannot be cleared of criminal allegations, only that he cannot be indicted. When the evidence did not support criminal conspiracy charges, Mueller had no problem stating that conclusion. That he has never made the same statement concerning obstruction has always suggested Mueller believes the evidence of obstruction was sufficient but his hands were tied. His testimony Wednesday only strengthened that impression.
Democrats did an effective job walking Mueller through some of the more compelling evidence of obstruction contained in the report. But some of the most revealing questioning on obstruction came, presumably unwittingly, from a Republican: Rep. Ken Buck (Colo.). Buck took Mueller through a series of questions contrasting how Mueller’s report treats the questions of Russian conspiracy and obstruction of justice. He pointed out that when there was insufficient evidence of a crime Mueller had no problem saying so — which makes his refusal to say so regarding obstruction all the more telling. Buck also had Mueller forcefully confirm that a president could be prosecuted for obstruction of justice once he left office, which was cited in the report as one reason for completing the obstruction inquiry. When Buck was finished, it seemed pretty clear that Mueller’s decision not to indict Trump for obstruction was based not on the facts or evidence but strictly on the OLC policy.
During questioning by Rep. Ted Lieu (D-Calif.), Mueller even appeared to say he would have indicted President Trump for obstruction had it not been for the OLC policy. This apparent bombshell set off a brief flurry on social media and cable news. But when he began his afternoon testimony before the House Intelligence Committee, Mueller walked back that answer, saying he meant to say only that the OLC policy precluded him from even engaging in the process to reach a conclusion on obstruction.
But, as former Justice Department spokesman Matthew Miller wrote, whether it was a simple misstatement or a Freudian slip, Mueller’s initial response to Lieu was likely the truth: If Trump were not the president, Mueller would have indicted him for obstruction. More than 1,000 former federal prosecutors have signed a letter saying anyone other than the president would face obstruction charges for the conduct in Mueller’s report. Although Mueller declined to testify whether he agreed with that letter, Wednesday’s hearings should leave little doubt about where he would come down.