You are Robert Mueller.
You are charged as a “special counsel” with only semi-independent investigative and prosecutorial authority. You are supposed to investigate three matters: Russian efforts to undermine the 2016 presidential election on behalf of candidate Donald Trump; any potential conspiracy involving the Trump team and Russian agents toward that end; and any attempts by President Trump or his underlings to obstruct justice (or commit perjury) relating to the two other questions. You also are charged with pursuing any “related” matters that arise.
On the first matter, you can act as any other prosecutor: Where you find crimes, you can seek indictments, and then seek convictions. By almost all accounts, you did that task superbly. You identified the Russian malefactors, catalogued their illegal efforts, and secured indictments against them.
On the second matter, and on the “related matters” offshoot, you did your job thoroughly and fairly. You found that onetime Trump campaign manager Paul Manafort, long a sleazy operator, committed crimes related to his work with pro-Russian entities in Ukraine. You secured a conviction. You also found what you believe is wrongdoing by longtime Manafort associate Roger Stone, and you indicted him. And you also nabbed a few lesser-known figures.
But, as your report clearly and fairly explains, you found entirely insufficient evidence to charge any Trump-related people with knowingly conspiring with the Russians in order to sway the election. There were plenty, repeat plenty, of reasonable leads and circumstantial indices that led people to reasonably wonder if such conspiracy took place, but you chased each one and found no proof. You chased each one not because you had an animus against Trump, but because that was your assigned job. And when the evidence led to no proof, you openly said so.
So far, so good.
Alas, the matter of obstruction of justice was not so easy. This was the subject most directly and obviously putting Trump himself at risk. This was why you were appointed in the first place – because various Trump actions aimed at investigators had the whiff of obstruction, but Deputy Attorney General Rod Rosenstein had a clear conflict as a witness/participant in those efforts. If the investigation involves the president, and the top brass of the Justice Department is situationally compromised, a special counsel is probably necessary.
Yet you, Robert Mueller, had a dilemma. An opinion from the department’s Office of Legal Counsel (OLC) quite clearly says a sitting president cannot be indicted. It is not an opinion with the force of law, but it nonetheless governs the conduct of department prosecutors.
So, your task is to investigate. Your task also is to report your findings to the attorney general. Plus, the applicable rules say that you should recommend whether or not to charge a subject with a crime. So, on the one hand, ordinarily you must recommend a “yes or no” on a criminal prosecution, but on the other hand, in the un-ordinary situation where the subject of the probe is the president, you are told you can’t indict.
So, how do you square that circle?
Well, you gather all the facts, and you also provide analysis of how “obstruction” laws might be implicated. But you stop short of making an actual recommendation. Your report belongs to the attorney general; if he thinks the OLC rule doesn’t apply here, he, as the head of the department, can decide how to proceed. Indeed, you quite cogently think that if you even make a recommendation on indictment of the president, that would violate the intent, and possibly the letter, of the OLC rule.
This is not an abdication on your part. This is not a cop-out. This is an appropriate way to fulfill both obligations – that of making a full report of the facts and the law, but not to say if an indictment of the president of the United States is warranted. The decision on how to proceed is above your pay grade, but the duty to fully report is your solemn obligation.
The question arises, though: What is your obligation if a serious gray area exists? After all, the “don’t indict the president” rule doesn’t exist in a vacuum; it exists in the context of a constitutionally prescribed way to ensure that not even the president is above the law. That way is called the impeachment process, run by Congress. But you, the special counsel, unlike someone in the now-jettisoned role of “independent counsel,” are not a creature of Congress. You still report to the attorney general.
Yet, to give the attorney general the context he needs in order to decide whether he should even consider whether and how the OLC rule affects him, you feel a need to tell him if there is reason even to bother with the question. If there clearly is not reason for the attorney general to decide if an indictment of the president is warranted, they you can tell him your investigation exonerated the president. But if you cannot exonerate the president – in other words, if there is disturbing indication that he may have committed obstruction, but you are precluded from determining as much yourself – then you should tell your boss that, so he will know there is a sticky issue to consider.
Again, your report belongs to the attorney general alone, and to nobody else, unless he determines otherwise.
While the Justice Department is not an adjunct of Congress, there is no good reason the attorney general cannot refer issues of possible presidential misconduct to Congress. After all, Congress does have oversight authority over the department.
Thus, if you tell the attorney general, in a report that is by law confidential unless the attorney general himself decides to release it, that the president has not been exonerated, you are not inverting the ordinary standard that says a prosecutor’s job is only to determine if guilt can be proved beyond reasonable doubt, rather than to prove someone’s innocence. After all, this is not a normal situation; this is one where you believe you are precluded from a determination of guilt, but required to give as much information as you can, short of that determination, to the attorney general. That way, he can decide what to give, or not give, to Congress.
You, Robert Mueller, have now navigated an extremely narrow, perilous path. You have laid out all the evidence. You have told your boss that he has a tough decision to make, because your evidence indicates there may be something for constitutional branches to look at – that the president has at least waded into troubling waters.
Have you recommended impeachment? Of course not. But if your boss releases your confidential report, as is likely, your “not exonerated” statement is a signal that difficult legal and constitutional issues are at stake, and that only Congress can rightly handle them. Congress can handle them in any number of ways short of impeachment. But that is Congress’ job to figure out.
So you, Robert Mueller, have met your responsibilities not in a political way, but according to your best understanding of how to resolve two apparently conflicting dictates. You have not put the thumb on the scales. You have not committed a political hit job. You have not, as one otherwise reasonable columnist put it, “invented an extraconstitutional legal standard for [your] obstruction investigation.”
Instead, you, Robert Mueller, have exquisitely and profoundly acted according to the spirit and intent of the Constitution, and well within its letter, by publicly acknowledging a gap in the Constitution’s joints that only Congress, as the people’s delegates, can decide how to fill.
You can sleep well at night, no matter how many ignorant armies of pundits blast you. You deserve thanks you will never get, but your conscience is clear. You have done your duty, and done it well.
