After special counsel Robert Mueller’s report was released last week, it received praise not only as a work of law but as literary yarn. As Laura Miller has noted, one critic called it the best nonfiction book on the Trump administration yet released, while the Associated Press described it as “riveting reading.” It’s true that the report’s hundreds of pages cataloging the Russian effort to interfere in our election, the many connections made between Trump officials and Russians during and after the 2016 campaign, and the possibly criminal abuses of power Donald Trump is alleged to have undertaken in apparent efforts to obstruct the probe all make for a bit of a barnburner. But certain portions of the report probably enthralled far fewer readers: the long stretches of legal analysis.
While those sections are dense, they offer a very clear and thorough explanation of Mueller’s decision not to issue obstruction of justice charges against the president, which he indicates he based on an Office of Legal Counsel memo outlining constitutional concerns about charging a sitting president with crimes. However, that legal analysis also presents a much subtler sense of the special counsel’s view of whether the president actually committed potential felonies, even as Mueller said he was declining to issue an opinion. In particular, one underexamined footnote points to a clear conclusion: Robert Mueller thinks that Donald Trump could still be prosecuted for obstruction of justice once he leaves office.
Here’s the passage in question: In the report, it’s Footnote 1,091, which appears on Page 178 (emphasis mine).
A possible remedy through impeachment for abuses of power would not substitute for potential criminal liability after a President leaves office. Impeachment would remove a President from office, but would not address the underlying culpability of the conduct or serve the usual purposes of the criminal law. Indeed, the Impeachment Judgment Clause recognizes that criminal law plays an independent role in addressing an official’s conduct, distinct from the political remedy of impeachment. See U.S. CONST. ART. l, § 3, cl. 7. Impeachment is also a drastic and rarely invoked remedy, and Congress is not restricted to relying only on impeachment, rather than making criminal law applicable to a former President, as OLC has recognized. A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. at 255 (“Recognizing an immunity from prosecution for a sitting President would not preclude such prosecution once the President’s term is over or he is otherwise removed from office by resignation or impeachment.”).
The footnote follows a direct response to the occasional arguments from Trump’s legal team—and even Attorney General William Barr—that the president could not possibly be guilty of obstruction of justice through actions that he would otherwise have the legal authority to take, such as firing an FBI director. “[W]e were not persuaded by the argument that the President has blanket constitutional immunity to engage in acts that would corruptly obstruct justice through the exercise of otherwise-valid Article II powers,” Mueller writes prior to the attached footnote.
The implication of both this passage and the subsequent footnote is clear: If Trump committed obstruction of justice, even through official actions, a prosecutor could—and possibly should—charge him after his term has ended. Indeed, such a prosecution might “address the underlying culpability of the conduct or serve the usual purposes of the criminal law.” Further, impeachment would be no “substitute” for eventual criminal charges, and “Congress is not restricted to relying only on impeachment,” which is “a drastic and rarely invoked remedy.” This is pretty strong stuff, and it hasn’t received the attention it deserves.
To better understand that footnote in context, it’s worth examining Mueller’s broader legal arguments and what some commentators, I believe, have misunderstood about his case. The footnote comes at the end of the report’s second volume, the portion on potential presidential obstruction of justice, within an especially dense 22-page chapter titled: “LEGAL DEFENSES TO THE APPLICATION OF OBSTRUCTION-OF-JUSTICE STATUTES TO THE PRESIDENT.”
The purpose of this section—and the introductory summary of it at the start of the report—is not, as some have understood it, to suggest that Congress could impeach Trump for obstruction of justice. Rather, it lays out the case for why criminal obstruction of justice laws, as passed by Congress, could apply to a president’s conduct while in office once he has left it. Some have taken parts of this section to mean that Congress can punish the president through impeachment, or even through initiating its own criminal prosecutions. On Friday, for example, the Washington Post’s Devlin Barrett and Matt Zapotosky seemed to misinterpret this section—and the introductory summary of it—as such. They wrote that “the report implies—but never says outright—that Congress should assume the role of making prosecutorial decisions when it comes to the president.” As Barrett and Zapotosky later write:
In the same section describing the Mueller team’s view of obstruction law, they again suggested that Congress could make such a determination.
“Congress can validly regulate the President’s exercise of official duties to prohibit actions motivated by a corrupt intent to obstruct justice,” the report said.
The Post writers seem to take parts of this chapter and its introductory summary to mean that Mueller is suggesting either that Congress has the power to impeach the president or the power to prosecute him itself. As a different Washington Post article notes, other commentators have made a similar mistake in arguing that the introductory summary of section is essentially an impeachment referral.
In reality, this section clearly lays out the case that Congress has the constitutional authority to enact obstruction of justice statutes that can apply to a president and his official and unofficial actions—even if such a prosecution cannot occur until after that president has left office. As my colleague Mark Joseph Stern noted last week, Mueller even cites an opinion by former Supreme Court Justice Antonin Scalia—a conservative icon and fierce defender of executive power—to establish that Congress can regulate presidential abuses through obstruction of justice criminal statutes, which apply once a president has left office. By emphasizing Scalia’s standard that an action can be considered criminal obstruction of justice if it is “inconsistent with official duty,” Mueller makes the case that official conduct can be considered felony obstruction of justice if it is carried out with corrupt intent. In another subsection, he further explains that “Congress Has Power to Protect Congressional, Grand Jury, and Judicial Proceedings Against Corrupt Acts from Any Source,” including a president, through the passage of criminal obstruction of justice statues.
Mueller concludes this section by citing other cases of presidential misconduct and the precedents of Clinton v. Jones and United States v. Nixon to say this:
[T]he protection of the criminal justice system from corrupt acts by any person—including the President—accords with the fundamental principle of our government that “[n]o [person] in this country is so high that he is above the law.”
Ultimately, Barr and Deputy Attorney General Rod Rosenstein took Mueller’s deferral of a decision on whether Trump had committed a crime as a call to make their own “prosecutorial decision” that he hadn’t. If you read the Mueller report, though, it is clear that the special counsel viewed that as a decision to be undertaken by a future prosecutor, once Donald Trump is no longer president.