Before I start this, I’d like to debunk one of Barr’s many false statements to the press on the day the Mueller report was released.
“First, a traditional prosecution or declination decision entails a binary determination to initiate or decline a prosecution, but we determined not to make a traditional prosecutorial judgment. 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.”
Barr claimed that Mueller didn’t decline to prosecute based on the OLC decision that a President can’t be indicted. That is patently false, and Mueller tells you so on the first page of his summary into obstruction of justice. Mueller also goes on to say:
“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.
Second, while the OLC opinion concludes that a sitting President may not be prosecuted, it recognizes that a criminal investigation during the President’s term is permissible. The OLC opinion also recognizes that a President does not have immunity after he leaves office. And if individuals other than the President committed an obstruction offense, they may be prosecuted at this time. 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 .”
If you don’t read anything else in the entire Mueller Report, the above passages tell you almost everything you need to know in regards to Mueller’s mindset. He knew the facts were damning, but his hands were tied. He did the only thing he *could* do, and gathered all the available facts in order to pass them to Congress.
“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. Based on the facts and the applicable legal standards , however , we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”
Everyone on the planet has seen at least part of the above quote, but it’s important: Mueller plainly states that he would have told everyone if he could definitively say that Trump didn’t obstruct justice. He couldn’t – because Trump did obviously obstruct justice – but he also couldn’t prosecute him for it in part because of OLC’s opinion, and in part because of this:
“The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast , a prosecutor’s judgment that crimes were committed, but that no charges will be brought , affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.
The concerns about the fairness of such a determination would be heightened in the case of a sitting President, where a federal prosecutor’s accusation of a crime, even in an internal report, could carry consequences that extend beyond the realm of criminal justice. OLC noted similar concerns about sealed indictments. Even if an indictment were sealed during the President’s term , OLC reasoned, “it would be very difficult to preserve [an indictment’s] secrecy, ” and if an indictment became public, “[t]he stigma and opprobrium” could imperil the President’s ability to govern.” Although a prosecutor’s internal report would not represent a formal public accusation akin to an indictment, the possibility of the report ‘s public disclosure and the absence of a neutral adjudicatory forum to review its findings counseled against potentially determining “that the person’s conduct constitutes a federal offense.”
I’m not sure how anyone can read the above statement and say that Mueller wasn’t an imminently fair arbiter of justice. He literally declined to declare the President had committed a crime, in part, because it would be unfair and would violate Trump’s constitutional rights.
He did, however, give us plenty of hints that the President *did* commit obvious crimes which he should be held accountable for:
“As for constitutional defenses arising from the President’s status as the head of the Executive Branch, we recognized that the Department of Justice and the courts have not definitively resolved these issues. We therefore examined those issues through the framework established by Supreme Court precedent governing separation-of-powers issues. The Department of Justice and the President’s personal counsel have recognized that the President is subject to statutes that prohibit obstruction of justice by bribing a witness or suborning perjury because that conduct does not implicate his constitutional authority. With respect to whether the President can be found to have obstructed justice by exercising his powers under Article II of the Constitution, we concluded that Congress has authority to prohibit a President’s corrupt use of his authority in order to protect the integrity of the administration of justice.
Under applicable Supreme Court precedent, the Constitution does not categorically and permanently immunize a President for obstructing justice through the use of his Article II powers . The separation-of-powers doctrine authorizes Congress to protect official proceedings, including those of courts and grand juries, from corrupt, obstructive acts regard less of their source. We also concluded that any inroad on presidential authority that would occur from prohibiting corrupt acts does not undermine the President’s ability to fulfill his constitutional mission. The term “corruptly ” sets a demanding standard. It requires a concrete showing that a person acted with an intent to obtain an improper advantage for himself or someone else, inconsistent with official duty and the rights of others. A preclusion of “corrupt” official action does not diminish the President’s ability to exercise Article II powers. For example , the proper supervision of criminal law does not demand freedom for the President to act with a corrupt intention of shielding himself from criminal punishment , avoiding financial liability, or preventing personal embarrassment. To the contrary , a statute that prohibits official action undertaken for such corrupt purposes furthers, rather than hinders, the impartial and evenhanded administration of the law. It also aligns with the President’s constitutional duty to faithfully execute the laws. Finally, we concluded that in the rare case in which a criminal investigation of the President’s conduct is justified, inquiries to determine whether the President acted for a corrupt motive should not impermissibly chill his performance of his constitutionally assigned duties . The conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law .”
Again, this is Mueller being fair. He points out that it’s very rare for a President’s conduct to even come under criminal investigation, but when it does, it shouldn’t prevent said President from doing his job.
He also accurately points out that a President cannot use his authority for corrupt purposes, with the intent of shielding himself from criminal punishment, avoiding financial liability, or preventing personal embarrassment. This passage was tailor-made for Donald Trump, and for Congress. Again, Mueller states:
“We concluded that Congress has authority to prohibit a President’s corrupt use of his authority in order to protect the integrity of the administration of justice.”
Barr’s assertation that he didn’t get the impression that Mueller wanted to kick this to Congress is complete garbage; Mueller tells us all in no uncertain terms that it was his intention to kick this to Congress, because they’re the ones with the authority to do something about it.
Mueller again holds himself to a very high standard in the obstruction arena, as he should:
“The word “corruptly” provides the intent element for obstruction of justice and means acting “knowingly and dishonestly ” or “with an improper motive. ” United States v. Richardson, 676 F.3d 491, 508 (5th Cir. 2012); United States v. Gordon, 710 F.3d 1124, 1151 (I0th Cir. 2013) (to act corruptly means to “act[] with an improper purpose and to engage in conduct knowingly and dishonestly with the specific intent to subvert, impede or obstruct” the relevant proceeding. As used in section 1505, the term ‘corruptly’ means acting with an improper purpose , personally or by influencing another. see also Arthur Andersen, 544 U.S. at 705-706 (interpreting “corruptly” to mean “wrongful, immoral , depraved, or evil” and holding that acting “knowingly … corruptly ” in 18 U.S.C. § 1512(6) requires “consciousness of wrongdoing”). The requisite showing is made when a person acted with an intent to obtain an “improper advantage for [him] self or someone else, inconsistent with official duty and the rights of others.”
I’m not a lawyer, but I’d argue that saying firing Comey “lifted the cloud” of the Russia investigation, and admitting to Lester Holt that he fired Comey *because* of the Russia (well… Rusher) thing would fit the definition of corruptly to the letter. Mueller also told us that a President is not immune from being charged with suborning perjury, either by Congress, or when he leaves office. We know that he instructed McGahn to lie, and that he and Jay Sekulow influenced Cohen’s first testimony to Congress.
We’re already at approximately 4 impeachable offenses before we even get into the instances of obstruction outlined by Mueller in his report… or dangling pardons for DHS officials who break the law for him.
I completely understand why Mueller made the prosecutorial decisions that he did, but I really wish he had just said screw the OLC opinion and charged him. There’s ample evidence for him to have done so.
Intellectually, I know that it’s better the way Mueller did it; his strict adherence to – and reverence for – the law will ultimately make Congress’ case against Trump stronger. There is no way for anyone to allege bias in the way Mueller wrote this report. I know Trump is trying right now, but I also know that he hasn’t read a word of it.
I was planning to finish all of this in part 3, but I think it’s better if we leave all of the obstruction material in one post, so there will be a part 4 coming out soon. I’m sorry this has taken longer than I expected it to – it’s been a really busy couple weeks for me.

We’re at a turning point, I think. Either the House definitively says this is not the way the executive branch of government is to operate and starts impeachment or, in fact, they put their tacit imprimatur of approval on all future presidents to act like Trump has, that is to say, lawlessly.
thanks for breaking all this down for us!
Anyone who thinks that this was a letdown because we didn’t get him is not thinking of the global picture. Mueller is vastly experienced, and knows that he has to adhere to the letter of the law. I’m reading it myself, and it is a master work, produced in 2 years. The content is horrendous, the only thing that relieves the horror is the fact that these guys are dumber than bricks. Mueller has painted the picture, Congress has to connect the dots. We absolutely cannot avoid starting impeachment proceedings, this lays down a dangerous–if not fatal precedent if we do not.
Thank you for all of your time and effort. You are greatly appreciated.
And one request… I am *begging* you… please don’t start using the ******* like Seth does. It drives me wild and interrupts the flow of your writing and the message. Please? Pretty, pretty, pretty please with some Scotch sauce on top?