Jurisprudence

Americans Should Be Grateful to Mueller for His Decision Not to Accuse Trump of a Crime

Mueller cracking a smile.
Special counsel Robert Mueller.
Photo illustration by Slate. Photo by Tasos Katopodis/Getty Images.

Now that the dust has settled and people have had a chance to sift through the 448 pages of facts and evidence contained in the Mueller report—or stream the 20-hour audiobook version—the president, as expected, has continued to claim absolute exoneration, and critics have recoiled in shock at what looks like a pattern of inappropriate conduct with Russians and a sustained effort to cover it up. There is one conclusion, however, that seems less controversial and at least as salient. By issuing the report the way he did, special counsel Robert Mueller sought to preserve the legitimacy of the Department of Justice—and largely succeeded, after two years of repeated attacks from the president and his spokespeople.

By refusing to decide whether President Donald Trump’s conduct constituted obstruction of justice, and instead simply laying out the facts, Mueller’s report appears to be the work of a professional prosecutor. The search for truth is at the core of every prosecutor’s mission. Although prosecutors are sometimes accused of hiding inconvenient facts or obscuring weaknesses in their cases, such criticism only resonates because we recognize that prosecutors have an absolute obligation to pursue truth in an evenhanded way. Mueller’s report seems exemplary in this way: thorough, careful, and unbiased.

To follow the evidence wherever it leads is a fundamental prosecutorial duty, one that defines the unique role that prosecutors play in upholding the rule of law, and indeed democracy itself. If the government could take away a person’s life or liberty based on a distortion of fact, or fact seen through the lens of partisan political advantage, then our democracy would cease to function. Anyone in power could hound his adversary, fabricating facts or spinning reality to look a particular way in order to jail opponents and consolidate personal political advantage—the sorts of things our president daydreams about at his MAGA rallies and on his Twitter feed. Ultimately, whatever the president tweets, democracy requires well-informed voters and lawmakers. It thus relies on prosecutors who fulfill their duty to uncover and present facts impartially and in a manner untainted by the pursuit of partisan advantage.

Of course, in most instances prosecutors are supposed to do more than just uncover and present facts. They are also supposed to reach legal conclusions and, if warranted, bring criminal charges. Attorney General William Barr emphasized this role during the press conference he held hours before the Mueller report was released. Barr insisted that it was this mandate that led him, along with Deputy Attorney General Rod Rosenstein, to reach their own conclusion that the president had not committed a crime. In a normal case, this is exactly what prosecutors should do. But the special counsel’s mandate was not normal. Investigating a sitting president for criminal conduct is not a run-of-the-mill criminal prosecution and so it would be a mistake to abide by all the rules without giving some preliminary thought as to whether they apply.

Critically, Mueller explains in the report why he chose not to reach a conclusion on the difficult question of whether or not the president obstructed justice. Mueller notes that well before he was appointed special counsel, the DOJ’s Office of Legal Counsel had concluded that “the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive to perform its constitutionally assigned function.” Mueller then offered a constitutional rationale for this restriction, observing that reaching a conclusion about whether the president’s conduct was criminal would “potentially preempt constitutional processes for addressing presidential conduct.” In short, Mueller believed that, currently, the question of whether the president obstructed justice is, as a constitutional matter, for Congress and the voters to decide, not the special counsel. He believed that his duty was not to decide whether the president’s conduct met the legal standard of obstruction of justice, as that standard was only relevant if he could indict a sitting president. And he did not think he could. Rather, his duty was to—as he put it—“preserve the evidence when memories were fresh and documentary materials were available” and to serve the bodies who are empowered by our Constitution to hold the president accountable: Congress and the voters. And both of those bodies require honestly presented facts, which Mueller provided.

But Mueller may have had another, unstated goal. He may have wished to restore the reputation of the DOJ as an apolitical body of professional prosecutors whose mandate is to find facts and hold individuals responsible for their acts in an impartial way. Over the past three years, the DOJ has been in the political crosshairs. When James Comey decided not to charge Hillary Clinton for using an unsecured email server, instead issuing a statement about her culpability, both the left and the right accused him of partisanship (itself a fairly good indication he wasn’t being partisan at all). When, just weeks before the election, Comey informed the public that he had found additional information that required the probe be reopened, the Democrats again accused him of foul play. Conversely, when Rod Rosenstein—who was in charge of the Russia investigation because of Jeff Sessions’ recusal—appointed a special counsel, there were accusations that Rosenstein was not a true Republican, and when he chose to share documents with House Republicans, he was accused by the left of being a partisan player. And, of course, there were the past two years of endless presidential tweets, denouncing the investigation into Russia’s election meddling as a “witch hunt” by a gang of 12 (or 13, or 18 … the number kept changing) “angry Democrats.” In this climate, Mueller may have realized that offering a conclusion regarding obstruction of justice would inevitably trigger additional accusations that the special counsel was, like everyone else, playing for political advantage. By exercising the restraint needed to stay out of this fray, Mueller managed to deliver facts without exposing his investigation to partisan accusations, thus preserving the legitimacy of an agency that is critical to American democracy.

It is thus no surprise that Mueller did not appear at Barr’s press conference on Thursday, which many have criticized as both misleading and an act of partisan loyalty instead of professionalism. Attorneys general will come and go, though some will be perceived as independent actors, while others will be seen as seeking to serve as their presidents’ personal attorneys. But Mueller has reminded us that behind these political appointees is a department of career prosecutors whose job is to uncover and present the truth, without fear or favor. This task should be a simple one, but it is necessary to the integrity of our institutions. For the manner in which he fulfilled this task, the American people owe Robert Mueller a great debt of gratitude.