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Mueller’s approach to question of whether Trump obstructed justice leaves both sides frustrated

Former special counsel Robert S. Mueller III listens to a question as he testifies before the House Judiciary Committee on July 24, 2019.
Former special counsel Robert S. Mueller III listens to a question as he testifies before the House Judiciary Committee on July 24, 2019. (Salwan Georges/The Washington Post)
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The two central questions hung over former special counsel Robert S. Mueller III’s congressional hearings Wednesday: whether President Trump broke the law by trying to thwart a federal probe, and why Mueller refused to draw a conclusion from the evidence his investigators gathered on that key point.

In roughly six hours of testimony, Mueller failed to deliver a clear answer to either — frustrating Democrats who hope to spotlight what they consider ample proof of Trump’s crimes and Republicans who think the special counsel unfairly tarnished the president.

The questions Mueller faced throughout the day underlined the lingering confusion and debate about one of the most confounding decisions made by the special counsel’s prosecutors: that they could not assess whether the president engaged in a crime.

“Was there sufficient evidence to convict President Trump or anyone else with obstruction?” Rep. Ken Buck (R-Colo.), a former prosecutor, asked Mueller during Wednesday’s House Judiciary Committee hearing.

“We did not make that calculation,” the former special counsel responded.

“How could you not have made the calculation?” Buck asked.

Mueller said he was constrained by two factors, reiterating a legal analysis explained in his 448-page report. Because of Justice Department legal opinions stating that a sitting president cannot be indicted and broad “principles of fairness,” he concluded that his team had to stop short of drawing a conclusion about Trump’s actions.

“We decided we would not make a decision as to whether the president committed a crime,” Mueller said in his opening statement Wednesday. “That was our decision then and it remains our decision today.”

Mueller’s report does, however, lay out in exhaustive detail acts of potential obstruction by Trump that he investigated, including some episodes in which prosecutors found “substantial evidence” to support the elements of a criminal charge.

Although he did not draw a conclusion on obstruction, Mueller made a point of writing that “while this report does not conclude that the President committed a crime, it also does not exonerate him.”

On question of obstruction, Mueller hewed to untested Justice Department opinions and ‘principles of fairness’

His lack of a decision pleased few, drawing criticism from legal scholars across the political spectrum. Some noted that the public waited for nearly two years to learn of Mueller’s finding about whether Trump broke the law — and argued that the special counsel abdicated his duties by not coming to a conclusion.

“That’s one area where I would fault Mueller,” said former Watergate prosecutor Nick Akerman. “There was no rule that said Mueller couldn’t come to a conclusion on this case. The president is guilty of obstruction of justice. I fault him for not saying that.”

John Yoo, a former top official in the George W. Bush Justice Department, said he found Mueller’s explanation “rather vague and somewhat mysterious,” and that he may have felt he should defer to the attorney general.

“Like everyone else, I have been trying to infer why he did what he did,” Yoo said.

But Mueller offered little elaboration on his reasoning as he was pressed Wednesday by lawmakers in both parties.

GOP officials said that details in his report insinuating Trump was engaged in wrongdoing — including statements that there was substantial evidence without explicitly saying he broke the law — unfairly damaged the president.

Rep. John Ratcliffe (R-Tex.) said Mueller failed to follow the special counsel regulations, which required him to write a report for the attorney general explaining any decisions to prosecute or not prosecute.

“Nowhere in here does it say, ‘Write a report about decisions that weren’t reached,’ ” he said during the Judiciary Committee hearing. “You wrote 180 pages, 180 pages about decisions that weren’t reached, about potential crimes that weren’t charged or decided. And respectfully, by doing that, you managed to violate every principle in the most sacred of traditions about prosecutors not offering extra-prosecutorial analysis about potential crimes that aren’t charged.”

Rep. Michael R. Turner (R-Ohio) pounced on the sentence in Mueller’s report that said the special counsel could not “exonerate” the president.

“It’s a meaningless word that has no legal meaning and it has colored your entire report,” Turner said during the House Intelligence Committee hearing.

Mueller said he included that statement to make Attorney General William P. Barr aware of the team’s summary view.

“He may not know it, and he should know it,” the former special counsel said.

Meanwhile, Democrats labored in vain to get Mueller to assess whether Trump obstructed justice.

Rep. Hakeem Jeffries (D-N.Y.) walked Mueller through Trump’s efforts to get then-White House counsel Donald McGahn to push for the firing of the special counsel, one of the most dramatic episodes detailed in the special counsel report.

“Those are the elements of obstruction of justice,” Jeffries said. “This is the United States of America. No one is above the law. No one. The president must be held accountable one way or the other.”

“I don’t subscribe necessarily to your — the way you analyze that,” Mueller responded. “I’m not saying it’s out of the ballpark, but I’m not supportive of that analytical charge.”

Mueller, in occasionally halting testimony, points to foreign interference and offers some sharp criticism of Trump

In an interview, Sen. Richard Blumenthal (D-Conn.), said Mueller found extensive evidence that the president broke the law and misread Justice Department opinion as tying his hands.

“He should be charged now, and should be charged when he leaves office,” Blumenthal said of Trump. “My view has always been that the [Office of Legal Counsel] opinion is incorrect and inapplicable. The report shows clear criminal culpability that would justify an indictment now, and he should certainly be charged when he’s not in the White House.”

In his report, Mueller laid out a three-part analysis of 10 episodes in which Trump’s actions raised concerns of possible obstruction of justice. In four episodes, the special counsel indicated that prosecutors found “substantial evidence” of elements supporting an obstruction charge.

More than 1,000 former federal prosecutors have signed a letter saying that if Trump were not president, he would have been indicted on the basis of the evidence Mueller collected.

“Are they wrong?” Rep. Eric Swalwell (D-Calif.) asked Mueller.

“They have a different case,” he responded.

Joshua Geltzer, the founding executive director of Georgetown University’s Institute for Constitutional Advocacy and Protection, said that Mueller most likely wanted to avoid the fraught choice that then-FBI Director James B. Comey made in late 2016 when he made public pronouncements about Hillary Clinton’s handling of sensitive emails.

“Many of us thought that Jim Comey did not handle well a public lambasting of someone for whom he was not recommending charges,” Geltzer said. “It’s not the same at all, but it’s not irrelevant.”

Mueller did make clear Wednesday that he thinks that Trump could theoretically be prosecuted after leaving office. But he asserted in his report that because the president could not address any assertions of wrongdoing immediately through criminal trial, it would not be fair to suggest whether he should be eventually charged.

Some legal experts objected to that notion, noting the president’s prominent platform.

“Trump is better able to defend himself than anyone else under investigation,” said Stephen Gillers, a professor of law at New York University Law School.

Many former prosecutors said they view Mueller’s stance as a priestly one — divorced from the reality that the public needs a clear answer from an objective actor.

Jonathan Turley, an expert on constitutional law who teaches at George Washington University law school, called Mueller’s interpretation of Justice Department policy as prohibiting him from reaching a conclusion “incomprehensible.” He said that sifting through the evidence and reaching a conclusion was Mueller’s “core obligation.”

“He failed to complete the job,” said Duncan Levin, a former prosecutor for the Eastern District of New York.

“The job of a prosecutor is to make a charging decision,” Levin said, adding that Mueller “was appointed to make a tough call and he didn’t.”

Robert Costa and Rosalind S. Helderman contributed to this report.