If the Attorney General Adheres to DOJ Policies Mueller Report Cannot Hurt Donald Trump

For all those who believe that Donald Trump should be shaking in his boots at the likely disclosures from the eventual Mueller report, they are likely severely to be disappointed. First, Mueller’s mandate was to prepare a report for the Attorney General, not to Congress. Under Department of Justice guidelines, the AG has discretion to provide Congress and the public with his summary of the report’s conclusions or release the entire report. 

Given newly-confirmed U.S. Attorney General William Barr’s openly-stated antipathy for the entire Russia probe and Mueller’s efforts, we should expect little more than a summary of conclusions, which, if Trump is not an intended criminal prosecution target, will exclude any analysis of potential criminal culpability against the President. For the reasons set out below, Donald J Trump is not the intended criminal prosecution target of the Mueller probe. Congress may try and subpoena that report, but the likelihood of their success in that regard is hardly guaranteed.

The Department of Justice has a firm policy that prevents it from indicting a sitting president; thus, by definition, Donald Trump cannot be the subject of a DOJ-led criminal indictment. An October 16, 2000 Memorandum for the Attorney General from the Office of Legal Counsel provides the substantiating analysis for this policy: “In 1973, the Department concluded 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. We have been asked to summarize and review the analysis provided in support of that conclusion, and to consider whether any subsequent developments in the law lead us today to reconsider and modify or disavow that determination. We believe that the conclusion reached by the Department in 1973 still represents the best interpretation of the Constitution.

“The Department's consideration of this issue in 1973 arose in two distinct legal contexts. First, the Office of Legal Counsel (‘OLC’) prepared a comprehensive memorandum in the fall of 1973 that analyzed whether all federal civil officers are immune from indictment or criminal prosecution while in office, and, if not, whether the President and Vice President in particular are immune from indictment or criminal prosecution while in office. See Memorandum from Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel, Re: Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution while in Office (Sept. 24, 1973) (‘OLC Memo’). The OLC memorandum concluded that all federal civil officers except the President are subject to indictment and criminal prosecution while still in office; the President is uniquely immune from such process. Second, the Department addressed the question later that same year in connection with the grand jury investigation of then-Vice President Spiro Agnew. In response to a motion by the Vice President to enjoin grand jury proceedings against him, then-Solicitor General Robert Bork filed a brief arguing that, consistent with the Constitution, the Vice President could be subject to indictment and criminal prosecution. See Memorandum for the United States Concerning the Vice President's Claim of Constitutional Immunity (filed Oct. 5, 1973), In re Proceedings of the Grand Jury Impaneled December 5, 1972: Application of Spiro T. Agnew, Vice President of the United States (D. Md. 1973) (No. 73-965) (‘SG Brief’). In so arguing, however, Solicitor General Bork was careful to explain that the President, unlike the Vice President, could not constitutionally be subject to such criminal process while in office.

“In this memorandum, we conclude that the determinations made by the Department in 1973, both in the OLC memorandum and in the Solicitor General's brief, remain sound and that subsequent developments in the law validate both the analytical framework applied and the conclusions reached at that time.” Simply, while there is no clear constitutional prohibition against indicting a sitting president, the DOJ will not accuse a sitting president of criminal activity, relegating such inquiries solely to the impeachment powers of Congress. 

Likewise, the DOJ has a standing policy against revealing the existence or substance of their criminal investigations of individuals or companies whom they have elected not to prosecute or whom they believe that they cannot prosecute. The rationale, logical under normal circumstances, is to allow those investigated individuals not facing an indictment to continue their lives without remaining under a cloud of criminal inuendo. If someone is indicted, the DOJ can discuss their actions. If they were not indicted, silence reigns.

This policy is clearly set out in a letter to Donald Trump, sent shortly after the President fired FBI Director James Comey, from now-departing Deputy Attorney General Rod Rosenstein (the executive to whom Mueller reported): “We do not hold press conferences to release derogatory information about the subject of a declined criminal investigation. Derogatory information sometimes is disclosed in the course of criminal investigations and prosecutions, but we never release it gratuitously. The Director laid out his version of the facts for the news media as if it were a closing argument, but without a trial. It is a textbook example of what federal prosecutors and agents are taught not to do.”

Could William Barr rewrite those DOJ practices? Of course, he could, but this is what he said on the subject of not indicting a sitting president at his Senate confirmation hearing: “You know I haven’t read those opinions in a long time, but I see no reason to change them.” 

Put all of these elements together and here’s what you get: 1. An Attorney General who is unabashedly hostile to existence of the Mueller probe has to choose whether to present summary conclusions that cannot link the president to any possible criminal activity or release the totality of the report most probably filled, given the number of senior Trump-related officials and cronies who have been indicted (some of whom have already been convicted or have pleaded guilty) – many in connection with “Individual 1” (a veiled reference to Donald Trump) – with potential criminal acts that can directly be attributed to Donald Trump. 2. The DOJ does not indict sitting presidents. 3. The DOJ does not release the results of criminal investigations of individuals it will not prosecute. 

Guess the likely outcome. And do you possibly believe that Donald Trump will say anything other than the AG’s report shows that the Mueller investigation “completely vindicates me”? 

              I’m Peter Dekom, and truth can be terrifying, especially to those whose actions, if disclosed, would at best be embarrassing, but which could easily be criminal.