, , ,

By Frank Bowman

Over the past few weeks, the interwebs have been teeming with confident declarations that this or that new tidbit of information amounts to the final proof — or at least another link in the chain of proof — that will allow Special Counsel Robert Mueller to conclude that Mr. Trump has committed the felony of obstruction of justice.  The problem with all this barstool lawyering, a problem sometimes acknowledged but more often ignored or glossed over, is that Mr. Mueller has no independent authority to secure an indictment against a sitting president.

A still more fundamental problem, at least if one hopes for Mr. Trump’s removal from office, is that even a felony conviction would not eject him.  Only impeachment performs that trick.  Therefore, all the fevered speculation about Mr. Mueller’s progress is futile unless there is a way for a prosecutor who cannot indict his most prominent potential target to place the case for that target’s criminality before congress, the only body authorized to determine whether criminality should mean impeachability.

There are at least two ways it could be done, and done in full compliance with both Mr. Mueller’s limited mandate and the internal rules of the Department of Justice.  First, Mueller could prepare a report and recommendation that Mr. Trump be indicted after he leaves office and trust that congress would find means of obtaining the report. Alternatively, Mueller could recommend immediate indictment, fully expecting rejection of that recommendation, and rely on the technicalities of the Justice Department’s own rules to ensure transmission of his recommendation and reasons to congress.

Let’s begin with a quick refresher on the limitations of Mr. Mueller’s office:

  • Mueller is a “special counsel” appointed under Department of Justice regulations, not an “independent counsel” of the Kenneth Starr sort appointed under the now-lapsed post-Watergate Ethics in Government Act of 1978.
  • An “independent counsel” exercised virtually the full powers of the Department of Justice and was not subject to supervisory control by the Attorney General.  Mr. Mueller has only the authority granted any United States Attorney. He remains subject to the chain of command of the Justice Department. In ordinary circumstances, he would answer to the Attorney General. Because Jeff Sessions has recused himself from this matter, Mueller answers to Deputy Attorney General Rod Rosenstein.
  • As special counsel, Mr. Mueller is subject to the “rules, regulations, procedures, practices and policies of the Department of Justice.” And while the regulations accord him an unusual degree of autonomy, his superior, here Mr. Rosenstein, can overrule him if he proposes doing something contrary to DOJ policy.

The “policy” of the Department of Justice, expressed in several legal opinions issued by the Office of Legal Counsel, is that federal prosecutors may not indict a sitting president. An OLC opinion is not “law” in the sense of binding anyone outside of the DOJ itself. But it does bind DOJ employees.  Therefore, if Mr. Mueller were to propose indicting Mr. Trump, that proposal would be contrary to Department policy. Deputy Attorney General Rosenstein could, and almost certainly would, order Mueller not to present the indictment to a grand jury.  Mueller would have to follow that order. Failure to do so would be an entirely proper ground for removing him.

Given this internal restriction on Special Counsel Mueller’s authority, one might ask whether Mueller has the power even to investigate whether Mr. Trump has committed any crime. The answer is plainly yes.  The letter commissioning Mueller charges him with investigating coordination between Russia and the Trump campaign and any crimes, such as obstruction, committed in an attempt to interfere with that investigation. It does not bar him from investigating the activities of persons who may be legally or practically immune from criminal prosecution. In this regard, Mr. Trump is no more immune from Mueller’s inquiries than Russians who might assert diplomatic immunity.

Mueller’s appointment letter also empowers him to prosecute any crimes discovered in the course of his investigation. The only question is whether DOJ rules restrict this authority in the case of a president.

Internal DOJ policy precludes prosecuting a president while he is in office. It does not claim that presidents cannot be prosecuted.  Indeed, any such claim would be untenable inasmuch as Article 1, Section 3, of the Constitution specifically provides that persons impeached “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to law.” At a minimum, this means that a president may be indicted after he leaves office (subject to any problems created by statutes of limitation, a tricky legal problem for another day).

Mueller’s appointment letter granting him prosecution authority does not require that he prosecute the crimes he discovers immediately. Accordingly, if the Mueller investigation yielded evidence that Mr. Trump committed a crime, Mueller would be entirely within his mandate to prepare a report setting out his findings and recommending that Mr. Trump be indicted as soon as he left office.

The difficulty with this option from the perspective of those hoping to base an impeachment inquiry on Mueller’s work is that he has no independent authority to release such a report to Congress or the public.  And it seems quite likely that a Justice Department under increasing pressure from the White House would make every effort to keep the report secret.  On the other hand, there is nothing in the special counsel regulations or any applicable law that requires secrecy in such a case. If it were to become known that such a report existed, someone in congress would request it.  And if Democrats gained control of either house of Congress in 2018 — a precondition for impeachment in any case — they would also gain the power to subpoena the report.

Suppose, however, that Mr. Mueller were to decide that Mr. Trump has committed crimes and that Congress should know of that conclusion promptly. Suppose further that Mueller were not disposed to rely on the vagaries of midterm elections, and still less to wait for the expiration of the Trump presidency. In that case, there is another path.

DOJ’s special counsel regulations provide that, if a special counsel proposes an action that the Attorney General (here Deputy Attorney General) rejects because it would be “inappropriate or unwarranted under established Departmental practices,” then the Attorney General must notify both the chairs and ranking minority members of both the House and Senate Judiciary Committees of the special counsel’s proposed action and an “explanation” of the reason for rejecting that action.

Hence, Mr. Mueller would be operating entirely according to protocol if, while not actually presenting an indictment to a grand jury, he recommended to Mr. Rosenstein that Mr. Trump be indicted. He would, of course, realize that doing so would contravene an existing OLC opinion. However, there would be nothing untoward if he concluded, with the concurrence of the superb appellate lawyers on his staff, that the OLC opinion should be reconsidered.  OLC conclusions are subject to internal re-evaluation all the time.

Of course, we can fairly predict that Mueller’s arguments, however learned, for changing DOJ policy on this point would be rejected.  But rejection of Mr. Mueller’s recommendation for indictment on the ground that it contravened “established Departmental practices” would trigger the mandatory report to congress required by 28 C.F.R. 600.9. Et voila!  Member of Congress from both parties, and in due course, the public would know that Mueller believed Mr. Trump committed a crime.

As clean as this second approach seems, there are two potentially significant flies in the ointment. First, the mandatory reporting requirement of 28 C.F.R. 600.9 is triggered only “upon conclusion of the Special Counsel’s investigation.”  One reading of this language is that it applies only after the Special Counsel completely wraps up all his responsibilities.  Deploying that interpretation, a Trump-influenced Justice Department could justify withholding congressional notification until Mueller finished not only investigating, but trying, all pending cases. Given that at least Manafort and Gates remain untried, trials could delay things a long while. Alternatively, the reporting requirement could be read as arising once the purely investigative phase of Mueller’s work ends, without regard to the resultant litigation. But that interpretation would carry the day inside the Department only if the person making the call were principled, courageous, and more committed to institutional integrity and the rule of law than to protecting the president.

Regardless of how the reporting requirement were read, if Mr. Mueller thought it central to his mission that his conclusions about Mr. Trump be reported to Congress expeditiously, he could abandon or fast-track pursuit of smaller fry, close up shop, and insist that the Department’s own rules be followed.

The second potential obstacle to this gambit is one not of law, but personal psychology. Mr. Mueller, by reputation a man who operates strictly by the book, might not be willing to formally propose indicting Mr. Trump knowing that the proposal would be summarily rejected as violating existing DOJ policy.  On the other hand, as a lawyer of no mean talent, he might find considerable satisfaction in deftly employing the letter of the law in the service of the Republic.

I like to think that, as a both an undoubted patriot and a career public servant not unaccustomed to harnessing formalism to larger ends, Mr. Mueller would not be averse to engaging in a bit of bureaucratic Kabuki theater in the interests of revealing Mr. Trump’s conduct to congress while there is yet time to do something about it.

We shall see.