Mueller is putting together a report in the obstruction case that could be as damaging to Trump as an indictment
- The special counsel Robert Mueller is said to be preparing a report of his findings in the obstruction case against President Donald Trump.
- Mueller could be putting the report together because he doesn't believe he has the authority to indict Trump based on current Department of Justice policies.
- But legal experts cautioned that a blistering report of Mueller's findings could be as dangerous to Trump's presidency as an indictment.
The most important revelation out of a new Washington Post report Tuesday night is not that the special counsel Robert Mueller told President Donald Trump's lawyers he isn't a criminal target of the Russia investigation.
Rather, it's that Mueller is preparing a report about Trump's actions while in office and potential obstruction of justice.
Mueller is tasked with investigating Russia's interference in the 2016 US election. A significant thread in the inquiry is whether the president sought to obstruct justice when he fired FBI director James Comey last year. Comey had publicly confirmed the existence of the Russia investigation months before his firing, and he was in charge of overseeing it at the time of his dismissal.
Since then, media reports and a string of public statements from Trump have raised questions about the circumstances surrounding Comey's firing and whether Trump had the right to fire the FBI director if his intent was to hamper a criminal investigation into himself and his associates.
News that Mueller is now in the process of preparing a report about those circumstances lays out some important clues about the direction the investigation may be heading in.
The revelation could indicate one of three things, according to Jeffrey Cramer, a former federal prosecutor who spent 12 years at the Department of Justice:
- It could mean that the president did nothing wrong and may not be charged.
- Mueller may have found some indication of criminal activity but might not have enough evidence to indict Trump.
- If Mueller does have enough evidence to indict Trump, he may decide he does not have the authority to charge the president based on Department of Justice precedent.
The policy in question centers around a September 1973 memo, written during Richard Nixon's presidency, by the DOJ's Office of Legal Counsel. Robert Dixon, then the head of the Office of Legal Counsel, wrote at the time that a sitting president could not be indicted because doing so may hinder the executive branch from "accomplishing its constitutional functions" in a way that cannot "be justified by an overriding need."
Nixon's solicitor general, Robert Bork, also submitted a court brief in October 1973 arguing that sitting presidents are immune to indictment and criminal proceedings. In 2000, the head of the Office of Legal Counsel under President Bill Clinton reaffirmed Bork's and Dixon's judgments.
But The New York Times unearthed another legal memo last year that argued a sitting president could be indicted. The memo was written in 1998 by the office of special prosecutor Kenneth Starr, who spearheaded the Whitewater investigation that eventually led Clinton's impeachment in the US House of Representatives.
Starr tapped conservative constitutional law and ethics professor Ronald Rotunda to write the memo, which significantly narrowed the premise that a president is immune to indictment. Rotunda wrote that the US Constitution grants "limited immunity" to lawmakers in some contexts, but not to the president.
A blistering report from Mueller could be as dangerous to Trump as an indictment
Legal experts said that while Rotunda's memo was compelling, it remains unlikely that Mueller will indict Trump.
They added that the ball will ultimately be in Congress' court - and that's where Mueller's report could prove most consequential.
Mueller's office has so far charged 19 people with crimes, including 13 Russian nationals. The indictments against those individuals, as well as the charges against former Trump campaign chairman Paul Manafort, draw a stark and detailed picture of the defendants' alleged criminal conduct.
"Similar to the Manafort and Russian indictments, I expect any report [about Trump] to lay out in painstaking detail the facts they uncovered," Cramer said.
Mueller is mandated to provide reports of his findings to deputy attorney general Rod Rosenstein, who appointed him special counsel last May. But whether those findings are released to the public is ultimately Rosenstein's decision.
Alex Whiting, a former federal prosecutor who is now a professor at Harvard Law School, said he found it "striking" that "Mueller seems to be preparing the report with an expectation that it will eventually become public."
He added: "Once the investigation is completed, I think it will be very difficult to keep Mueller's conclusions secret."
To be sure, several of Trump's advisers are afraid Mueller could issue a blistering report about the president's actions, The Post reported. The report, in turn, could bolster some lawmakers' argument that Trump should be removed from office.
"The president's personal risk is primarily on the impeachment front," Keith Whittington, a professor of politics at Princeton University and an expert on impeachment, told The Post. "Even if there are not things that lead to indictment, there may be matters that warrant an impeachment investigation and proceedings."
Experts also cautioned that Mueller has yet to obtain the most critical component in the obstruction-of-justice investigation: a face-to-face interview with the president.
Trump has reportedly been "champing at the bit" to sit down with the special counsel against the advice of his lawyers, some of whom believe their client could land himself in legal jeopardy if he makes a misleading statement during the interview.
Cramer, like Whittington, said Trump could face ramifications beyond an indictment if he strays off script while speaking with Mueller.
"Trump's version of the facts, which even a biased observer would have to admit aren't always accurate, could provide some fodder for the report to Congress and any action they deem appropriate," Cramer said.
Trump a 'subject', not a 'target' of Mueller's probe
Legal experts also said the fact that Mueller has not yet secured an interview with Trump could be a significant part of why investigators see the president as a subject, and not a target, of the investigation.
A subject is someone who is under criminal investigation, which Trump has been since Mueller first started building the obstruction case against him last year. A target is someone who prosecutors have enough evidence against to charge with a crime.
"Prosecutors often withhold a final determination on who is designated a 'target' until all the evidence is in and evaluated," Whiting said. Trump is the last individual Mueller's team needs to interview before drawing its conclusions in the obstruction case.
If Trump refuses to voluntarily submit to an interview, Mueller can respond by serving the president with a grand jury subpoena. Whether or not a sitting president can be compelled to appear before a grand jury would then be decided by the courts.
"The one thing that will not happen is for the president to refuse the interview and Mueller simply shrugging his shoulders and walking away," Cramer said. "There is nothing in Bob Mueller's impressive past ... to indicate he will balk at that fight. No one in their right mind would want Bob Mueller on their trail."