Mueller’s Catch-22 On Obstruction

One of the many ways that Attorney General William Barr misrepresented Mueller’s findings is his suggestion that the guideline from the Office of Legal Counsel (OLC) stipulating that a president can’t be indicted was not the basis on which the special counsel declined to make a decision with regards to obstruction of justice. That is not technically an outright lie, but only because the OLC memo was only part of Mueller’s decision.

Volume II of the special counsel’s report, which is dedicated to the question of obstruction, goes into great detail on why they reached no conclusion. Included are the following considerations:

  1. Based on the OLC memo, the president can’t be indicted.
  2. President’s don’t have immunity when they leave office, so they “conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.”
  3. Were they to have found that the president committed crimes, no charges would be brought and the president would be denied his day in court to defend himself.
  4. The evidence didn’t allow them to state that the president did not obstruct justice.

That exposes the problem with having a criminal investigation conducted by a special counsel who is required to report charges and declinations on a president who cannot be indicted. It is a classic catch-22, defined as “a paradoxical situation from which an individual cannot escape because of contradictory rules or limitations.”

On Thursday, the White House released a letter written by Trump’s attorney Emmet Flood to the Justice Department immediately after the Mueller report became public. Flood reinforces the paradox by writing: “what prosecutors are supposed to do is complete an investigation and then either ask the grand jury to return an indictment or decline to charge the case.” For the special counsel, he was not allowed to indict the target and the evidence didn’t allow him to dismiss the charge.

That is why Hillary Clinton nailed it with her two take-aways from the Mueller report.

1. There was sweeping and systemic interference in our election by the Russians, and
2. Had Donald Trump not been president, he would have been indicted for obstruction of justice.

In the end, Mueller noted that “a federal accusation against a sitting president would…preempt constitutional processes for addressing presidential misconduct.” That statement was accompanied by a footnote related to impeachment. With that, Mueller made the resolution of the paradox very clear.

Support the Washington Monthly and get a FREE subscription

Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly. Follow her on Twitter @Smartypants60.