Analysis: While the Mueller report gave us a window into the special counsel's thinking, here's what remains unanswered about his decision on obstruction.
WASHINGTON — In the days and weeks leading up to Thursday's release of the redacted version of special counsel Robert Mueller's report, few questions loomed as large as this: Why did Mueller decide not to decide whether to charge the president withobstruction of justice?
While the report gave us a window into Mueller's thinking and the complex legal theories he used in making his decision,the question is not wholly answered. Here's what remains unanswered about Mueller's decision:
Would Mueller have charged Trump with obstruction had he not been the president?
Mueller's report stops short of explicitly saying that Trump committed obstruction of justice and he would have been charged had he not been the president. But it does frequently cite a longstanding opinion from the Justice Department's Office of Legal Counsel (OLC) that says a sitting president cannot be indicted.
In the beginning of the obstruction portion of the report, Mueller writes, "Given the role of the Special Counsel as an attorney in the Department of Justice and the framework of the Special Counsel's regulations, this Office accepted OLC's legal conclusion for the purpose of exercising prosecutorial jurisdiction. 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 process for addressing presidential misconduct."
Mueller goes on to cite other reasons why Trump could not be charged: There was no evidence of an underlying crime to establish intent, some of the evidence was ambiguous and many of the actions took place in public view. But it remains unclear how big of a factor the OLC's opinion was in Mueller's decision not to charge the president.
The report goes on to say that Trump's position as president made him an unusual subject, which kept Mueller from reaching a conclusion on obstruction.
"Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President's conduct. The evidence we obtained about the President's actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment."
Did Mueller want Congress to rule on obstruction?
Again, Mueller is not explicit on this issue in his report. But he does differ with Attorney General William Barr on the issue of whether Congress should or could be left to continue probing for criminal wrongdoing around obstruction. On page 382, the report states, "Under [the Office of Legal Counsel's] analysis, Congress can permissibly criminalize certain obstructive conduct by the President, such as suborning perjury, intimidating witnesses, or fabricating evidence, because those prohibitions raise no separation-of-powers questions. The Constitution does not authorize the President to engage in such conduct, and those actions would transgress the President's duty to 'take care that the laws be faithfully executed.'"
Many have interpreted these lines and other excerpts of the report as a road map for Congress to follow if it decided to begin impeachment proceedings against Trump.
What were the disagreements between Mueller's team and Barr's team over obstruction?
In his speech ahead of the report's release on Thursday, Barr said, "Although the Deputy Attorney General [Rod Rosenstein] and I disagreed with some of the special counsel's legal theories and felt that some of the episodes examined did not amount to obstruction as a matter of law, we did not rely solely on that in making our decision."
The report lists 10 episodes of potential obstruction examined by Mueller's prosecutors. It is unclear which of the 10 were the subject of contention between Barr and Mueller. But legal theories that may have been in dispute include how heavily to weigh the OLC opinion, whether the lack of an underlying crime should be considered in determining Trump's intent, and whether Trump was rightfully exercising his executive powers by firing former FBI Director James Comey.
Barr's decision to exonerate the president on the issue of obstruction was based, in part on the inability to prove intent because there was no crime to cover up. But Mueller said there may have been "other possible personal motives" for Trump's behavior.
What did Mueller mean when he talked about "other possible personal motives" for Trump's behavior?
In the report, Mueller states, "The evidence does point to other possible personal motives animating the president's conduct. These include concerns that continued investigation would call into question the legitimacy of his election and potential uncertainty about whether certain events — such as advance notice of WikiLeaks' release of hacked information or the June 9, 2106 meeting between senior campaign officials and Russians — could be seen as criminal activity by the president, his campaign, or his family."
Mueller seems to indicate here that Trump may have thought he committed a crime and could be working to cover up those actions. But he does not establish — in bold terms, at least — whether those motivations could have led the president to obstruct justice.