As the nation awaits the Mueller report, a return to first principles is in order. One relevant first principle was dramatically illustrated in the breach during the waning weeks of the 2016 presidential campaign. Then–FBI Director James Comey announced at a press conference that no criminal charges would be brought against Hillary Clinton. Comey didn’t stop there, however. In that press conference, which will continue to live in infamy, Comey sharply criticized the former secretary of state for her ill-considered conduct in housing a server in her private residence, only to receive official and—not infrequently—classified information.
The nation should have risen, as one, in righteous indignation in the aftermath of the Comey press conference. In a single misadventure, Comey both seized power that was not his—the power to seek an indictment, a prerogative that was entrusted to the attorney general—and then violated one of the fundamental principles of public prosecution: Thou shalt not drag a subject or target of the investigation through the mud via public criticism. Prosecutors either seek an indictment, or remain quiet.
Robert Mueller is not your everyday prosecutor, however. Under Department of Justice policy, a sitting president cannot be indicted. This prosecutor, unlike other prosecutors, cannot indict if he finds an indictable offense. And in contrast to the practices and policies that govern thousands of federal prosecutors around the country, this former FBI director—now a special counsel—has a specific reporting obligation. That solemn obligation is not to produce a public report. He cannot seek an indictment. And he must remain quiet.