The Atlantic published a piece today titled “There’s No Way Mueller Will Indict Trump” written by attorney Paul Rosenzweig. Twenty years ago, Rosenzweig was involved in the investigation of President Clinton by the House of Representatives and today he writes that anyone who thinks the Mueller investigation is going to end with an indictment of Trump is engaged in a fantasy.
Mueller will not indict Trump for obstruction of justice or for any other crime. Period. Full stop. End of story. Speculations to the contrary are just fantasy.
He won’t do it for the good and sufficient reason that the Department of Justice has a long-standing legal opinion that sitting presidents may not be indicted. First issued in 1973 during the Nixon era, the policy was reaffirmed in 2000, during the Clinton era. These rules bind all Department of Justice employees, and Mueller, in the end, is a Department of Justice employee. More to the point, if we know anything about Mueller, we think we know that he follows the rules—all of them. Even the ones that restrict him in ways he would prefer they not. And if he were to choose not to follow the rules, that, in turn, would be a reasonable justification for firing him. So … the special counsel will not indict the president.
Rosenzweig says what Mueller is likely to do is file a final report, the disposition of which will be up to deputy attorney general Rod Rosenstein (since AG Sessions has recused himself). Rosenstein can, at that point, either sit on the report or release it to the public. It will be completely up to him.
Even if Trump isn’t going to be indicted for obstruction of justice, are recent suggestions that there is a strong case against him correct? Again, Rosenzweig is skeptical of such claims given that investigators have yet to demonstrate any underlying collusion (or other crime) which Trump was allegedly trying to cover up:
Collateral cases, like those involving obstruction and perjury, are ones that involve derivative offenses, not the principal charges under investigation. Proving them often turns on proof of intent. You have to show that the defendant acted with the purpose of obstructing an investigation. That means these cases tend to rise or fall on the strength of the case proving the underlying crime. It matters very much to juries and the public that we know exactly what it is that a defendant is covering up. If we don’t think it matters that much (as many in America seem to have concluded when confronted with President Clinton’s sexual conduct) or that it hasn’t been proven, then the cover up is often forgiven.
In the Trump investigation, we have yet to determine whether the campaign was involved in an underlying crime of electoral manipulation involving Russia, much less how the broader American public thinks of it…
Rosenzweig’s bottom line is that Mueller is not going to provide any magic bullet which will remove Trump from office. As he puts it, the conclusion of all of this will be “political, not criminal.” That, of course, doesn’t rule out the possibility that Democrats will seize on Mueller’s conclusions and proceed with articles of impeachment, though that would obviously depend on them re-taking the House in 2018. Unless they also re-take the Senate, they won’t be able to convict Trump, but as a plan to keep this front and center from now until 2020 it makes a certain, highly partisan, sense.