Alan Zendell, May 30, 2019

Though it was certainly unintentional, Robert Mueller did Donald Trump a huge favor when he defined the scope of his investigation as he did. As he made clear both in his report and his televised remarks, yesterday, Mueller treated an opinion by the Justice Department’s General Counsel as undisputed constitutional law, when in fact it is a matter of great dispute among law professors and judges.

The opinion that a sitting president cannot be indicted for a crime while he is in office is just that. It is neither law nor regulation. It is not based on established precedent and has not been approved by any court. Despite Mr. Mueller’s statement that prosecuting Trump would be unconstitutional, the Constitution says no such thing.

It’s not difficult to understand why Mueller wanted to avoid taking his investigation into uncharted legal territory. Whatever he did was bound to be controversial with a volatile, thin-skinned president watching every move he made. For his findings to be credible he had to frame them within clearly defined boundaries.

Various legal scholars are now weighing in on whether Mueller’s ultra-conservative approach was the right one. In today’s Washington Post, Rosalind Helderman quotes one former federal appellate judge who thinks Mueller could have gone further even if he believed the president couldn’t be indicted: “the fact that a president cannot be prosecuted does not foreclose a finding by a special counsel of whether a president committed a crime.”

Mueller could have reached the same conclusion, but chose not to because, “it would be unfair to potentially accuse somebody of a crime when there can be no court resolution of the actual charge.” Clearly, Mueller was bending over backwards to ensure that there could be no hint of political bias (against Trump) in his investigation.

The Post article also quotes George Washington University law professor Jonathan Turley, who said that “neither the Constitution nor writings by its framers refer to a desire to make the president immune from criminal prosecution.” The legal status of the DOJ ruling would be clearer today if either of the Special Counsels investigating Presidents Nixon and Clinton had tested it in the courts, but like Mueller, both Ken Starr and Leon Jaworsky chose not to challenge it. In those two cases the threat of prosecution was unnecessary. As Mueller made clear, the Constitution provides for other means of trying a president – impeachment. In Clinton’s case it was attempted and in Nixon’s the certainty of a conviction in the Senate convinced him to resign.

As a result, Mueller was constrained by a Justice Department policy opinion that a sitting president may not be indicted or prosecuted regardless of the evidence, because doing so might prevent the president from carrying out his constitutional responsibilities. It’s impossible to know how the Supreme Court would rule if the opinion came before them, but that sounds like an extremely flimsy basis for determining whether the president is a criminal.

The Constitution also provides a remedy for a president who is temporarily indisposed and unable to carry out the duties of his office. The president steps aside for the duration of the indisposition and the vice president assumes the role of acting president. Could that apply to a criminal prosecution? Apparently none of the people appointed to investigate presidents since 1973 were inclined to ask that question.

Given all that it’s hard not to conclude that Mueller was not only fair and unbiased in his investigation, but he did Trump a huge favor by not challenging the DOJ opinion. Instead of carrying on like a five-year-old throwing a tantrum and viciously attacking Mueller, Trump should be saying, “Thank you, Bob.”

But this misses the essential point that despite Mueller’s unquestioned integrity, and Trump’s televised irrational tirade in which he called Mueller a Trump-hater and “one of the worst people in the world,” the conclusions of the Special Counsel’s report couldn’t be clearer to anyone reading it with an open mind. As more than a thousand former prosecutors and federal judges have publicly stated, the evidence in volume 2 of the report would have resulted in indictment and prosecution if the subject of the investigation had been anyone but the president.

On second thought, a thank you would be wholly inadequate. Trump ought to finally give Mueller the refund he asked for after changing his mind about joining Trump’s golf club.