In the month before Robert Mueller’s report was released, Attorney General Barr painted a picture of a special counsel who couldn’t decide whether to charge the president with obstruction of justice, so he simply thew up his hands and left the decision up to the attorney general. During testimony before the Senate Judiciary Committee after the report had been released, Barr acknowledged that Mueller explained his position, but suggested that he was “not really sure of” Mueller’s reasoning on the issue.
There was, however, one time when Barr was asked a specific question about something that might have influenced Mueller’s position. It happened during the press conference just prior to the release of the report.
Without Mueller present, Barr took a question from a reporter who asked whether Mueller’s non-decision on obstruction “had anything to do with the department’s long-standing guidance from the Office of Legal Counsel on not indicting a sitting president.”
Barr responded that he had a private conversation with Mueller, who told him that he “was not saying that but for the OLC opinion, he would have found a crime.”
During his remarks at the Justice Department this morning, Mueller demonstrated that Barr has been lying in an attempt to mislead all along.
The order appointing me special counsel authorized us to investigate actions that could obstruct the investigation. We conducted that investigation, and we kept the office of the acting attorney general apprised of the progress of our work. And as set forth in the report, after that investigation, if we had confidence that the president clearly did not commit a crime, we would have said so. We did not, however, make a determination as to whether the president did commit a crime.
The introduction to the Volume II of our report explains that decision. It explains that under longstanding department policy, a president cannot be charged with a federal crime while he is in office. That is unconstitutional. Even if the charge is kept under seal and hidden from public view, that, too, is prohibited. A special counsel’s office is part of the Department of Justice, and by regulation, it was bound by that department policy. Charging the president with a crime was therefore not an option we could consider.
Shorter Mueller: if Trump were not president, he would have been charged with the crime of obstructing justice.
On Barr’s contention that the special counsel left the decision in his hands, Mueller went on to say that “the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.” That other process described in the Constitution is impeachment, not an override by the attorney general.
As my colleague Martin Longman has written, a lot of people wish that Mueller had been more combative and direct about what is happening. But while he left the conclusions up to us, he just made three things very clear: (1) the attorney general lied about his position, (2) if Trump were not president, they would have charged him with obstruction of justice, and (3) impeachment is the Constitutional remedy.