Yeah, it’s hard to argue. If/when Mueller finally testifies, someone should ask him what he would have done if he’d been AG and the special counsel had punted on whether the president had committed obstruction of justice or not. Would he have forced himself to decide the question, as Barr and Rod Rosenstein did, or would he have left the issue unresolved? Barr testified weeks ago that he felt obliged to reach a conclusion for the simple reason that the Justice Department can’t just throw up its hands and say “We don’t know” after a long criminal investigation. Either charges will be filed or they won’t be. Normally it’s the prosecutor, not the AG, who makes that call but someone has to make it. Mueller dropped the ball.
I think he was worried about forcing Congress’s hand on impeachment. If Mueller had accused Trump of a crime, House Democrats would have had to act. Removal by the Senate would have been unlikely given the dearth of evidence on the underlying crime, conspiracy with Russia, which means Trump would have continued in office supervising a Justice Department that was … on record as believing he was a criminal and was presumably prepared to indict him as soon as his presidency ended. Potentially he would have had to run the country *and* conduct a national reelection campaign as an accused but unindicted felon; meanwhile Democrats and Republicans would reap the electoral consequences of the impeachment process Mueller had foisted upon them. Imagine if Mueller’s accusation led to Trump losing his reelection bid, getting indicted — and then being acquitted at trial. He would have been tossed out of office over an allegation that turned out to have no merit but which he wasn’t able to defeat sooner due to the DOJ’s policy preventing indictments of sitting presidents.
Barr apparently would have risked all of that by letting Mueller accuse Trump. Mueller preferred to eschew any accusations and instead simply show Congress the evidence he had on obstruction. Let them decide what to do with it.
It’s an absurd situation, made more absurd by the fact that Mueller felt obliged to produce a lengthy report detailing the obstruction evidence against Trump before deciding it’d be unfair to accuse him of anything. What do we do about situations like this in the future? On the one hand, people have got to know whether their president is a crook, which is why Barr and Mueller decided to release the report in the first place. This isn’t any ol’ criminal defendant in any ol’ criminal case. Trump’s accountable to the public by dint of his office. Voters deserve to know what he’s done. But on the other hand, if the DOJ can’t say — formally or informally — whether it believes the president is a crook or not for fear of impugning him without the benefit of a trial then what’s the point of releasing the findings of the investigation? Share it confidentially with Congress so that they can make a call on impeachment and then stick it in a drawer somewhere inside the DOJ and let future prosecutors decide what to do with the evidence once the president’s out of office and eligible for indictment again.
How far to go in accusing the president when you can’t go all the way by law is an impossible dilemma. And when you take half-measures, as Mueller did, you’re apt to confuse average Americans who get their news from sources inclined to tell them what they want to hear:
Cathy Garnaat, a Republican who supported Amash and the president said she was upset about Amash’s position but wanted to hear his reasoning. She said that she will definitely support Trump in 2020 but that Tuesday night was the first time she had heard that the Mueller report didn’t completely exonerate the president.
“I was surprised to hear there was anything negative in the Mueller report at all about President Trump. I hadn’t heard that before,” she said. “I’ve mainly listened to conservative news and I hadn’t heard anything negative about that report and President Trump has been exonerated.”
Punting on obstruction made it easy for Trump’s allies to spin the report as a total win for him. Accusing him of obstruction with the caveat that he can’t lawfully be indicted until he leaves office would have made it much harder. Mueller’s scrupulousness about refusing to accuse someone who’s not allowed to defend himself in court was an enormous political asset to Trump in the end.