Mueller revealed why he didn't charge Trump with a crime — and it wasn't because of a lack of evidence

  • The former special counsel Robert Mueller went into detail Wednesday about why he didn’t make a decision on whether to charge President Donald Trump with obstruction of justice.
  • Mueller pointed to three factors that he said impeded prosecutors from making a decision on the obstruction case.
  • The first is a 1973 decision by the Justice Department’s Office of Legal Counsel stating that a sitting president cannot be indicted. For that reason, Mueller said, charging Trump with a federal crime “is unconstitutional.”
  • He also said it would be “unfair” to even suggest Trump had committed a crime, because it would deprive him of the opportunity to defend himself in a court of law.
  • And he said filing a sealed indictment was not an option because of the 1973 DOJ policy, and because there was a risk that it could leak.
  • “Charging the President with a crime was therefore not an option we could consider,” Mueller said.
  • But the former special counsel emphasised that if prosecutors had confidence that Trump did not commit a crime, they would have said so. He also implied that it is up to Congress to potentially pursue impeachment proceedings against Trump.
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The former special counsel Robert Mueller made it clear on Wednesday that the reason prosecutors didn’t consider charging President Donald Trump with a crime wasn’t because of a lack of evidence, but because they are precluded from doing so by a longstanding Department of Justice (DOJ) policy.

The 1973 decision by the DOJ’s Office of Legal Counsel states that a sitting president cannot be criminally indicted.

“Under longstanding department policy a president cannot be charged with a federal crime while he is in office,” Mueller said. “Even if the charge is kept under seal and hidden from public view, that, too, is prohibited.”

He added, “Charging the President with a crime was therefore not an option we could consider.”

Critically, he reiterated his final report in the investigation and added, “If we had confidence that the President clearly did not commit a crime, we would have said so.”

Mueller further said that it would be “unfair” for the special counsel to even suggest Trump committed a crime, given that DOJ policy holds that the issue couldn’t legally be resolved. Moreover, accusing Trump of criminal wrongdoing but not charging him would deprive him of the chance to defend himself in court.

“Beyond Department policy, we were guided by principles of fairness,” Mueller said. “It would be unfair to potentially accuse somebody of a crime when there can be no court resolution of the actual charge.”

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The former special counsel also implied that the process of formally accusing a sitting president of criminal conduct is up to Congress, not the DOJ.

“The [OLC] opinion says that the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing,” he said.

Notably, however, prosecutors said that while the OLC’s guidance says a sitting president cannot be indicted, it “recognises that a criminal investigation during the President’s term is permissible.”

“The OLC opinion also recognises that a President does not have immunity after he leaves office,” they added. “Given those considerations, the facts known to us, and the strong public interest in safeguarding the integrity of the criminal justice system, we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.”

That wording leaves open the possibility that Trump could be charged with obstruction of justice once he leaves office.

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