Patterico's Pontifications


Did Mueller Refer Trump for Impeachment?

Filed under: General — Patterico @ 12:23 pm

Remember that I said four days before the Mueller report came out:

I doubt Mueller has made any express “referral” of any of this to Congress, but there will likely be some subtle reference to the notion that the fact that no prosecutions were brought should not preclude Congress from evaluating the material in its oversight capacity. It’s hard for me to imagine the absence of any statement like that, given that Mueller so pointedly refused to exonerate Trump on obstruction. Why make a point of that lack of exoneration if the matter is not to be taken up by Congress in some way?

I was mocked for this by some here, but this was my specific prediction. Indeed, in a comment written ten days before the report came out, I hypothesized as to how such a comment might read:

I’d be surprised if Mueller explicitly referred something to Congress and Barr didn’t mention it — but it’s not impossible. And I would not be at all surprised if Mueller said something like: “This report does not conclude, one way or another, whether the extensive evidence of obstruction of justice laid out above reaches a level that justifies prosecution. Such a pronouncement involves difficult issues of law and fact that the undersigned believes may be more appropriately resolved by Congress. Given that Congress is a co-equal branch with an oversight role that can include sanctions as provided by the Constitution, the undersigned believes that the evidence described above is more appropriately reviewed by Congress to determine whether that body believes that obstruction has occurred — and, if so, what (if any) sanction is appropriate for that obstruction.”

Here is what the report says about impeachment, in relevant part:

The Office of Legal Counsel (OLC) has issued an opinion finding that “the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions” in violation of “the constitutional separation of powers.”1 [Footnote 1 reads as follows: A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. 222, 222, 260 (2000) (OLC Op.).] Given the role of the Special Counsel as an attorney in the Department of Justice and the framework of the Special Counsel regulations, see 28 U.S.C. § 515; 28 C.F.R. § 600.7(a), this Office accepted OLC’s legal conclusion for the purpose of exercising prosecutorial jurisdiction. And apart from OLC’s constitutional view, we recognized that a federal criminal accusation against a sitting President would place burdens on the President’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct.2 [Footnote 2 reads as follows: See U .S. CONST. Art. I § 2, cl. 5; § 3, cl. 6; cf. OLC Op. at 257-258 (discussing relationship between impeachment and criminal prosecution of a sitting President).]

All bold emphasis is mine.

Omitting all the citations and other legal throat-clearing, Mueller is saying: I accepted the OLC opinion that a sitting President cannot be indicted in part because doing so would “potentially preempt constitutional processes for addressing presidential misconduct” — constitutional processes that include impeachment.

Mueller also took special care to note that, in his view, Congress’s obstruction laws can validly apply to official presidential actions without overstepping Congress’s Article I role or unconstitutionally impinging on the President’s Article II powers:

[W]hen the President’s official actions come into conflict with the prohibitions in the obstruction statutes, any constitutional tension is reconciled through separation-of-powers analysis…. Applying the Court’s framework for analysis, we concluded that Congress can validly regulate the President’s exercise of official duties to prohibit actions motivated by a corrupt intent to obstruct justice. The limited effect on presidential power that results from that restriction would not impermissibly undermine the President’s ability to perform his Article II functions.

(Some journalists have read this incorrectly as saying Congress can criminalize Trump’s behavior specifically, but it’s actually just a general analysis of Congress’s constitutional authority to pass laws that arguably invade the president’s constitutional powers.)

Is any of the above language an explicit impeachment referral? That’s debatable, but I would not waste any energy arguing that it is.

Is it a declaration that Congress is a co-equal branch with an oversight role that can include sanctions as provided by the Constitution, which include impeachment? (In other words, precisely what I predicted?) You bet it is.

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[Cross-posted at The Jury Talks Back.]

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