Special Counsel Robert Mueller’s report is a revealing and incisive document, explicating and detailing the extensive evidence uncovered in the investigation of a potential conspiracy between President Donald Trump’s campaign and the Russian government as well as presidential attempts to obstruct justice.
And while many of these new details and the narrative they tie together are of incredible value, much of the outline of the behavior documented were already known. Trump and his campaign aides were interacting frequently with figures tied to the Russian government, gleefully accepted their help during the election, and tried — sometimes illegally and sometimes successfully — to cover it all up. As president, Trump engaged in a series of outrageous acts designed to stymie the probe, many of which could clearly be considered criminal obstruction of justice — but Mueller declined to make a prosecutorial judgment on this question.
Instead, he clearly thinks it is up to Congress to decide whether to hold Trump accountable. In arguably the most crucial paragraph of the report, the Mueller team sets forth why potential charges for Trump’s obstruction would be legitimate under the Constitution and fall to lawmakers, at least for now:
Under applicable Supreme Court precedent, the Constitution does not categorically and permanently immunize a President for obstructing justice through the use of his Article II powers. The separation-of-powers doctrine authorizes Congress to protect official proceedings, including those of courts and grand juries, from corrupt, obstructive acts regardless of their source. We also concluded that any inroad on presidential authority that would occur from prohibiting corrupt acts does not undermine the President’s ability to fulfill his constitutional mission. The term “corruptly” sets a demanding standard. It requires a concrete showing that a person acted with an intent to obtain an improper advantage for himself or someone else, inconsistent with official duty and the rights of others. A preclusion of “corrupt” official action does not diminish the President’s ability to exercise Article II powers. For example, the proper supervision of criminal law does not demand freedom for the President to act with a corrupt intention of shielding himself from criminal punishment, avoiding financial liability, or preventing personal embarrassment. To the contrary, a statute that prohibits official action undertaken for such corrupt purposes furthers, rather than hinders, the impartial and evenhanded administration of the law. It also aligns with the President’s constitutional duty to faithfully execute the laws. Finally, we concluded that in the rare case in which a criminal investigation of the President’s conduct is justified, inquiries to determine whether the President acted for a corrupt motive should not impermissibly chili his performance of his constitutionally assigned duties. The conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.
This paragraph is so important because it lays out why the obstruction portion of the report matters. Attorney General Bill Barr has dismissed the obstruction charges, saying that because Mueller didn’t make a determination about whether Trump committed a crime, it was up to him as the head of the Justice Department to make that call.
Before he became attorney general, Barr drafted a 19-page memo arguing that a president couldn’t obstruct justice using his constitutional powers. That memo is, in all likelihood, the reason he got the job he has now. And before the report was released, Barr said that he disagrees with Mueller’s theory of obstruction of justice.
But that’s the reason Mueller was appointed. A special counsel is needed when the traditional operations of the Justice Department are not sufficient to ensure the credibility of its actions in a particularly sensitive matter. Mueller has the credibility — and the paragraph above shows why.