Congress must investigate

Congress must investigate

Mueller makes clear it's up to legislators to determine whether Trump obstructed justice

[Read the full article in The Hill]

Contrary to the summary that Attorney General William Barr gave Congress last month, the full Mueller report did not leave it up to the attorney general to decide whether President Trump obstructed justice.

That question is up to Congress, just as it was when obstruction of justice formed one of the bases for impeachment proceedings against both Richard Nixon and Bill Clinton.

As a historian of Watergate, I think the Mueller report shows us why Congress should not cede to an attorney general the responsibility on this central question of presidential fitness. The report gives four clear, straightforward reasons why the special counsel did not decide the issue — and all four of these reasons apply equally to Barr.

  1. Indictment would place too heavy a burden on the president. Special counsel Robert Mueller cites the well-known Office of Legal Counsel (OLC) opinion that “criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch.”
  1. Investigation of obstruction of justice could still move ahead. “We conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available,” the report stated. It notes that the president could still be prosecuted after leaving office through resignation or impeachment.
  1. It would be unfair to accuse the president of a crime if he could not defend himself in court. Without a trial to either convict or acquit him, the accusation would hang over the president’s head, imperiling his ability to govern.
  1. “Fourth, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state,” the report concluded. In other words, if the evidence had given the special counsel an opportunity to clear Trump of the charge of obstruction, Mueller would have taken it. “Based on the facts and the applicable legal standards, however, we are unable to reach that judgment.” In other words, there is just too much evidence of obstruction.