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More On The Special Counsel’s Trip Through Uncharted Legal Waters

U.S. President Donald Trump plays a round of golf at Trump Turnberry Luxury Collection Resortduring the U.S. President's first official visit to the United Kingdom on July 15, 2018 in Turnberry, Scotland. The President of the United States and First Lady, Melania Trump on their first official visit to the UK after yesterday's meetings with the Prime Minister and the Queen is in Scotland for private weekend stay at his Turnberry.
TURNBERRY, SCOTLAND - JULY 15: U.S. President Donald Trump plays a round of golf at Trump Turnberry Luxury Collection Resort during the U.S. President's first official visit to the United Kingdom on July 15, 2018 in... TURNBERRY, SCOTLAND - JULY 15: U.S. President Donald Trump plays a round of golf at Trump Turnberry Luxury Collection Resort during the U.S. President's first official visit to the United Kingdom on July 15, 2018 in Turnberry, Scotland. The President of the United States and First Lady, Melania Trump on their first official visit to the UK after yesterday's meetings with the Prime Minister and the Queen is in Scotland for private weekend stay at his Turnberry. (Photo by Leon Neal/Getty Images) MORE LESS
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June 3, 2019 12:14 p.m.

Special counsel Robert Mueller’s surprise press conference last week unleashed a new wave of pressure on House Democratic leadership to initiate an impeachment inquiry — or full-on impeachment proceedings — against the President.

But Mueller did not formally accuse Trump of anything. He laid out details of allegedly obstructive acts, but did not draw a conclusion about whether obstruction, or another crime, occurred.

I wrote about this issue on Friday.

For what it’s worth, the constitutional scholars I spoke to emphasized that Mueller — and, by extension, the rest of the body politic — were in uncharted waters.

Part of that comes down to Mueller being the first special counsel to investigate a president while operating under a 2000 Office of Legal Counsel opinion stating that the Justice Department cannot indict a sitting president.

“He came as close to saying he committed obstruction of justice as he could, without saying it,” Susan Bloch, a Georgetown Law Professor who testified before the Senate in the 1990s about the issue of indicting a sitting president, told TPM. 

Mueller said in his press conference on Wednesday that while the OLC opinion prevented an indictment against a sitting president, “principles of fairness” dictate that the government cannot make a formal accusation against someone — even the president — without an opportunity to respond at trial.

And regardless of your opinion of Trump, the logic goes, he is still a citizen entitled to the same constitutional protections that we’re all supposed to enjoy.

What lawyers who specialize in this area told me, however, is that Trump would have the opportunity to face any such accusations after impeachment via trial in the Senate.

“We are in a terrible position,” Bloch added. “It’s so awkward, because, clearly, if the president commits a crime, impeachment is the remedy that the framers anticipated.”

It’s a different process, and one that seems as rickety as something you would expect from a structure framed in the 18th century.

“So probably what they anticipated also is that the House would do the investigating,” Bloch said. “What’s weird now is we’ve got the special counsel thing operating in this twilight zone.”

To boot, the House’s investigative authority isn’t what it was at the dawn of the 19th century, when lawmakers could throw uncooperative witnesses in jail via inherent contempt.

From another perspective, it was Mueller’s temperament that led him to decline to formally accuse Trump of anything. Doing so would likely have been a political boon to House Democrats, some of whom were chomping at the bit to start impeachment proceedings. But for a guy whose entire career has been defined by having a by-the-book mentality, the special counsel appears to have found himself in a situation in which there really was not a book to turn to.

One reader emailed in to share an insight from working with Mueller and other members of the special counsel team that touches on this as-of-yet unanswered question.

That reader suggested that Mueller could have asked the OLC to decide how the opinion applied to his investigation, forcing the DOJ to decide whether the special counsel could formally accuse the president or not. Either way, that would commit the Justice Department’s position to writing, making it harder for Attorney General Bill Barr to get away with his rhetorical sleight-of-hand.

“These are smart people, and I assume there’s a reason we didn’t see one of those two outcomes,” the reader wrote. “But for now, I can’t imagine what that reason is.”

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