There's No Way Mueller Will Indict Trump

Those hoping the special counsel will prosecute the president are engaging in fantasy.

Deputy U.S. Attorney General Rod Rosenstein testifies to the House Judiciary Committee hearing on oversight of the Justice Department on Capitol Hill December 13, 2017. (Joshua Roberts / Reuters)

The latest revelations about President Trump have, once again, excited the interest of the public, leading to speculation that Special Counsel Robert Mueller may have amassed sufficient evidence to charge the president with obstruction of justice. Trump’s attempt to fire Mueller (which happened last June, but is only now being publicly reported) is, under this line of thinking, the final straw.

Color me deeply skeptical.

Mueller will not indict Trump for obstruction of justice or for any other crime.  Period. Full stop. End of story. Speculations to the contrary are just fantasy.

He won’t do it for the good and sufficient reason that the Department of Justice has a long-standing legal opinion that sitting presidents may not be indicted. First issued in 1973 during the Nixon era, the policy was reaffirmed in 2000, during the Clinton era. These rules bind all Department of Justice employees, and Mueller, in the end, is a Department of Justice employee. More to the point, if we know anything about Mueller, we think we know that he follows the rules—all of them. Even the ones that restrict him in ways he would prefer they not. And if he were to choose not to follow the rules, that, in turn, would be a reasonable justification for firing him. So … the special counsel will not indict the president.

What can Mueller do if he finds evidence of criminality involving the president?  He can and will (as authorized by Department of Justice regulations) file a report on his findings with the attorney general (or, since Attorney General Sessions is, in this case, recused, with the deputy attorney general, Rod Rosenstein). Rosenstein will then be faced with the important decision of whether and how to make that report public—whether to convey it to Congress or not; whether to release it publicly or not. The regulations are so vague (they say only that he “may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions”) that they, in effect, give Rosenstein plenary discretion to do whatever he thinks is in the best interest of the country.

So, every time you read about the threat to fire Mueller, remember this—the critical actor in most future scenarios is not Mueller, but Rosenstein. Knowing Rosenstein personally, I have high confidence that he will make what he thinks is the best decision for the country—the same may not be true of his replacement (or of the replacement attorney general, should Sessions be fired). That, of course, is why the highly dubious “secret memo” prepared by House Republicans reportedly targets Rosenstein—even though he is a Trump appointee who advocated firing Comey, Trump supporters fear he will follow the rule of law.

But what of the substance of the obstruction charge? Are pundits right that the case against Trump is becoming stronger—even if as a legal matter the president may not be charged?

Again, color me skeptical.

Collateral cases, like those involving obstruction and perjury, are ones that involve derivative offenses, not the principal charges under investigation. Proving them often turns on proof of intent. You have to show that the defendant acted with the purpose of obstructing an investigation. That means these cases tend to rise or fall on the strength of the case proving the underlying crime. It matters very much to juries and the public that we know exactly what it is that a defendant is covering up. If we don’t think it matters that much (as many in America seem to have concluded when confronted with President Clinton’s sexual conduct) or that it hasn’t been proven, then the cover up is often forgiven.

In the Trump investigation, we have yet to determine whether the campaign was involved in an underlying crime of electoral manipulation involving Russia, much less how the broader American public thinks of it.  Many, like me, see strong evidence of Russian interference in the American election system and good evidence (though less strong) that some in the Trump campaign willingly accepted this and sought to take advantage of it. But candor compels the recognition that evidence of President Trump’s personal involvement is much thinner than, say, that of his son-in-law and other campaign staff.

Indeed, in many ways, the sheer numerosity and blatantness of the president’s interventions suggests that he really is sincere in thinking that he did nothing wrong. Were he truly concerned about the criminality of his former actions, he might well have been more cautious in so openly attempting to subvert the investigation. Unless and until stronger evidence of the president’s personal involvement in contacts with Russian influence peddlers is developed, the derivative obstruction case will remain substantively problematic as well.

All of which brings us to a final thought, admittedly far more speculative than what has gone before. Something concerns the president. That is clear. If it is not the alleged collusion with Russia, then what is it?

Wisps of information in the wind suggest a far different, deeper concern. The president’s finances have always been suspect. Some have thought them resting on shaky foundations. Ongoing investigations have looked to his banking and investments as well as those of his closest family. Several of the special counsel’s prosecutorial hires specialize in money-laundering cases—an odd specialty for an election fraud/computer-hacking case (which, basically, is what the Russia investigation amounts to). Perhaps, just perhaps, it is that investigation that has motivated the president’s response.

But even here one should not repose too much hope in the Mueller investigation. Mueller will not indict the president, even for money laundering. The resolution of the current American crisis is going to be political, not criminal. The future lies with Congress and, ultimately, the electorate, not with prosecutors and the courts.