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.
{mosads}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.
- 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.”
- 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.
- 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.
- “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.
All four of these reasons for not indicting a president apply to the entire Justice Department, not just the special counsel. They make it clear that Mueller did not punt the issue to Barr. And they make it equally clear that Congress bears the responsibility to investigate whether the president committed obstruction of justice, just as it did with Nixon and Clinton.
{mossecondads}As we read the Mueller report — and it will take some time to digest it all — we would do well to keep copies of the obstruction-of-justice articles of impeachment against both Nixon and Clinton nearby. They provide the historical standards Congress used to determine whether past presidents failed to uphold their oath to “take care that the laws be faithfully executed.”
The Mueller report contains many echoes of those past impeachment proceedings. Former White House Counsel Don McGahn clearly heard them when President Trump told him to have the special counsel ousted. “McGahn did not carry out the instruction for fear of being seen as triggering another Saturday Night Massacre and instead prepared to resign,” the Mueller report said. In the original “Saturday Night Massacre,” the attorney general and his deputy resigned rather than carry out President Nixon’s order to oust Watergate special prosecutor Archibald Cox. This time, the Mueller report says, the president didn’t follow up.
Another echo of Watergate is the dangling of presidential pardons before witnesses who might see them as an incentive not to cooperate with investigators. Nixon did that in secret; Trump has been less subtle. “Many of the President’s acts directed at witnesses, including discouragement of cooperation with the government and suggestions of possible future pardons, took place in public view,” the report notes. “That circumstance is unusual, but no principle of law excludes public acts from the reach of the obstruction laws.”
The articles of impeachment against both Nixon and Clinton cited their efforts to withhold relevant evidence and information from investigators. That lends a familiar ring to the Mueller report’s account of Trump’s efforts to get his aides not to reveal the emails leading up to the June 9, 2016, Trump Tower meeting with Russians purporting to have damaging information on Hillary Clinton.
Perhaps the most resounding echoes of impeachment proceedings past are the Mueller report’s numerous references to false statements. Few people remember this, but the obstruction-of-justice article against Nixon held the president accountable for lying to the American people — not when he was under oath, but when he made public statements about Watergate. In an era when falsehoods uttered by the president number in the thousands, the standard Congress upheld in the 1970s may seem unachievable. But Congress recognized then that, in order for a republic to function properly, it must hold presidents accountable to the people and the truth.
There may be little appetite in Congress for investigations that can lead to impeachment proceedings. Republican lawmakers fear that if they don’t support the president, they will lose their jobs to primary challengers who reflect the pro-Trump sentiment of their party’s base. Democratic lawmakers remember how impeachment proceedings against President Clinton backfired, turning public opinion in favor of the president and his party. Their concerns are understandable.
But something will be lost if Congress does not investigate whether the president obstructed justice. Failure to act will show that a president can thwart investigations that threaten him politically and can do so with impunity. That in turn would erode the rule of law. And that is something more precious than any reelection campaign.
Ken Hughes is a historian with the University of Virginia’s nonpartisan Miller Center, which specializes in presidential, public policy and political history studies and their relationship to contemporary governing challenges. He is the author of “Chasing Shadows: The Nixon Tapes, the Chennault Affair, and the Origins of Watergate.” Follow him on Twitter @FatalPolitics.