There is much in Special Counsel Robert Mueller’s report to concern the American public. It recounts a tale of Russian electoral interference that everyone (save President Donald Trump) now recognizes as extensive. And it details a course of obstructive conduct by the president that borders on criminality.

Yet Mueller reached no conclusion about the president’s behavior, and that is an even greater concern. For in elevating the institution of the president above the rule of law, Mueller has done a disservice to the nation.

With almost the very first words of Volume II of his report—the section on obstruction of justice—Mueller tells us that he flinched. He says that, in the end, his office declined to “apply an approach that could potentially result in a judgement that the President committed crimes.”

In other words, he decided not to answer one of the two most important questions that have plagued the American body politic—whether the president acted criminally to obstruct an investigation of his activity. That choice is particularly noteworthy because it stands in stark contrast to Mueller’s decision to give us an answer to the other question—whether or not the Trump campaign conspired with Russia.

Why would Mueller have declined? We know it is not because he thought the evidence was inadequate. Indeed, quite to the contrary, Mueller explicitly stated that “if he had confidence” that the evidence was inadequate to prosecute the president, he would have said so. He did not.

Instead, he said that certain issues prevented him from exonerating the president—which is a way of saying that the evidence supported a conclusion that the president had, in fact, obstructed justice. Indeed, any fair reading of the evidence presented in the report reveals a course of conduct—ranging from attempts to remove the special counsel to direct and indirect contacts with witnesses in an effort to get them to limit their testimony—that demonstrates the president’s obstructive intent.

This perspective is confirmed by the remainder of Mueller’s discussion, which is an extended legal analysis of precisely why claims of exoneration were not well founded. Mueller examined the legal claim (also advanced by Attorney General William Barr) that the obstruction statute doesn’t apply to the president’s conduct when he is acting in his capacity as chief executive—and rejected that reading of the law. He examined, as well, the constitutional claim that Congress could not, lawfully, have criminalized presidential actions—and he rejected that as well.

Having thus gone to great lengths to establish the grounds for a criminal charge, both factually and legally, Mueller nonetheless declined to offer an opinion on whether or not the evidence supported the conclusion that the president committed crimes.

He did not do so for the following reason: A prevailing Justice Department opinion prohibits the indictment of a sitting president; since the normal forum to contest innocence is in response to an indictment, it is unfair to accuse any individual of criminality in a report to which he cannot respond; and it is especially unfair to a sitting president, since the stigma of such an allegation would resonate far beyond the criminal sphere.

So when Barr said at this morning’s press conference that departmental policy against indicting presidents was not a “but for” cause of Mueller’s reticence, that was, strictly speaking, true—yet fundamentally misleading. Mueller’s decision was bottomed, ultimately, on the president’s unique status.

That is the only reasonable explanation for why the special counsel took a fundamentally inconsistent view of the legal obligations of those under his investigation. As Mueller recounts, several individuals affiliated with the Trump campaign lied to the investigation, and those lies materially impaired the investigation. As a general matter, it is difficult to see how those lies were material and impaired the investigation, but the 10 different events orchestrated by the president and intended to influence or short-circuit the special counsel’s investigation were not likewise material. The only way to square the circle is the unique nature of the presidency.

Even so, Mueller’s argument does not cohere. It is true that Justice policy means he cannot issue an indictment. But only prudential concerns stop him from offering an opinion. And in balancing those prudential concerns, Mueller misbalanced the interests of the nation.

For one thing, a president, unlike any other citizen, has a bully pulpit from which he can respond to public allegations. He is not made mute by his status. For another, though conclusions as to criminality may hamper a president’s ability to act, that limitation has to be balanced against the even more important need of the American people to know whether or not the person they have elected is worthy of the office entrusted to him. By protecting the presidency, Mueller has hurt the country.

In the end, what we learn from Mueller’s decision is that he is, at his core, an institutionalist. He might have looked at Trump’s conduct as that of an individual and concluded that it was over the line (and pretty far over the line) into the realm of obstructive criminal conduct. Instead, he took the perspective of one who is looking at the presidency as an institution and at Trump as the embodiment of that institution. Where any other citizen of the nation would likely have been charged with a crime, Mueller chose not to even characterize the president’s actions.

That is deeply troubling and disappointing. For on Mueller’s reading of prudential policy considerations, the president is above the law. In the United States, no person should be. Mueller’s fidelity to the institution of the presidency did damage to an even more important institution—that of American values and the rule of law.

Image credit: Rick Beauregard

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