May 29, 2019.
Robert S. Mueller III publicly stated that if, after his investigation, he had confidence that Trump clearly did not commit a crime, he would have said so. Mueller’s report did not say that Trump did not commit a crime. Mueller thus advised that there was evidence indicating that Trump may have committed a crime. Left open, however, was the other side of the question whether Trump did commit a crime. However, for the reasons noted below, Mueller determined that he was restricted from addressing that issue whether Trump did commit a crime. While unable to conclude that Trump did not commit a crime, Mueller was prevented from proceeding to answer the opposite side of the issue, thereby leaving unanswered the question whether Trump did commit a crime. In his May 29, 2019 public comments, Mueller concisely said:
“And as set forth in the report, after that investigation, if we had 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.”
Mueller was restricted from considering whether Trump committed a crime because he said he was bound by the U.S. Department of Justice’s policy that a president cannot be charged with a federal crime while in office. “Charging the president with a crime was therefore not an option we could consider.” Therefore he “concluded that we would not reach a determination one way or the other about whether the president committed a crime.”
The results are that: (1) Trump was not exonerated by Mueller from obstructing justice because Mueller was not confident from the investigation that Trump did not commit a crime; (2) the Mueller report did not conclude that Trump did not commit a crime; and (3) Mueller was prevented from addressing the question whether Trump did obstruct justice because of the Department of Justice’s policy that a sitting president cannot be charged with a federal crime.
Mueller faced a dilemma: from his investigation, he could not conclude that Trump did not commit a crime, but he was restricted from determining whether Trump did commit a crime. Mueller’s solution to his conundrum was to point out that Congress has a process, impliedly impeachment, other than the criminal justice system to formally accuse a sitting president of wrongdoing. The correct constitutional remedy for Trump’s wrongdoing while a sitting president is congressional impeachment.
I share the view that a principal reason that Mueller made his public remarks on May 29, 2019 was to contradict the misrepresentations and distortions which were previously made by Attorney General Barr about his report and its findings. Mueller also wanted to explain that he was restricted by the Department of Justice’s binding policy from answering the question whether Trump did commit a crime after he had pointedly said he was not convinced that Trump did not commit a crime.