Rewrite the rules for investigating presidents
This nation’s justice system has a terrible flaw, one exposed by special counsel Robert Mueller’s investigation: The American people cannot learn whether the president has committed a crime.
Mueller’s tortured rationale that he was prevented from saying President Donald Trump obstructed justice in the Russian inquiry has left the public and Congress groping in the dark.
In fact, the political ramifications are worse. By punting on the issue, Mueller left a vacuum that Attorney General William Barr rushed to fill, allowing Trump and his acolytes to fashion a narrative of innocence.
The narrative dominated for weeks until Mueller’s redacted report was finally released, and a careful reading showed that the special counsel had all but found that Trump committed a crime. Mueller even complained to Barr in a letter March 27 that the attorney general had left “public confusion about critical aspects of the results of our investigation.” Barr conveniently kept that letter secret until this week.
In his report, Mueller said he was prevented from indicting Trump because of the Justice Department’s Office of Legal Counsel opinion from 2000 that said a sitting president facing charges could not perform his constitutional duties. Stripped of legalese, the opinion essentially says the president can’t run the country while defending himself in a criminal trial and certainly not from prison.
Unable to bring an indictment that Trump could rebut at trial, the special counsel report says, “we determined not to apply an approach that could potentially result in a judgment that the president committed crimes.” This was despite evidence of Trump actions and intent “that prevent us from conclusively determining that no criminal conduct occurred.”
It’s easy to fault Mueller for his legal gymnastics. Barr himself told a Senate committee Wednesday, “I’m not really sure of his reasoning.”
But fault lies with Justice rules that are too open to interpretation about discerning whether a president is crooked. The Constitution gives the executive branch of government the duty of criminal prosecution, and that sets up an inherent conflict when the head of the branch commits a crime.
Congress tried to solve this problem in 1978 by creating an unfettered independent counsel. But the excesses of endless and costly investigations led Congress to let the law to lapse in 1999.
Mueller was appointed under special counsel rules drafted by the Justice Department. Constitutional law authorities Jonathan Turley, Laurence Tribe and Evan Caminker, who worked on the Office of Legal Counsel opinion, say that opinion or the special counsel rules could be amended so that the next special counsel could say a president broke the law, even if an indictment were not possible.
This would be a good start.
Had Mueller felt free to say Trump committed a crime, Congress and the American people might now know better what to do next.