Special Counsel Robert Mueller cited a previous Justice Department policy that said a president can’t be indicted, in describing his decisionmaking on whether to charge President Trump with obstruction of justice. At the same time, he suggested his team had questions about Trump’s “actions and intent.”
Here’s what Mueller’s report said in the introduction to Volume II:
■ The report said Mueller’s team “determined not to make a traditional prosecutorial judgment.” It noted the Justice Department Office of Legal Counsel ruling that indicting or prosecuting sitting presidents is not allowed. The report said Mueller’s team “accepted OLC’s legal conclusion for the purpose of exercising prosecutorial jurisdiction.”
■ The report noted, however, that the team was allowed to investigate, if not indict or prosecute, and that a president would not have immunity after he leaves office. The report also noted that individuals other than the president could be prosecuted. “Given those considerations, the facts known to us, and the strong public interest in safeguarding the integrity of the criminal justice system, we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.”
■ Mueller said his team ultimately decided not to make a decision on whether the President committed crimes. “We determined not to apply an approach that could potentially result in a judgment that the President committed crimes,” the report said.
The report said that, if no charges could be brought (apparently because of the Office of Legal Counsel ruling), it would be unfair to pronounce that crimes were committed. The report noted that normally someone who is charged can respond in a “speedy and public trial,” where a person wrongly accused “can use that process to seek to clear his name.”
“In contrast, a prosecutor’s judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator,” the report said.
■ The report said concerns about fairness would be heightened in the case of a sitting president, if a prosecutor were to accuse the president of a crime. The decision “could carry consequences that extend beyond the realm of criminal justice,” the report said. He also noted the Office of Legal Counsel’s thinking on sealed indictments, which was that they could leak and result in “ ‘stigma and opprobrium’ that could imperil the President’s ability to govern.”
■ After this legal discussion of why no decision was made on charging Trump, Mueller noted that his team had questions about whether Trump was innocent of obstruction. “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. Based on the facts and the applicable legal standards, we are unable to reach that judgment,” the report said.
“The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him,” the report said.