Did Mueller mean Trump could be indicted when he leaves office?

Rep. Ted Lieu, D-Calif., asks questions to former special counsel Robert Mueller, as he testifies before the House Judiciary Committee hearing on his report on Russian election interference, on Capitol Hill on July 24, 2019. Copyright Andrew Harnik AP
By Dareh Gregorian with NBC News Politics
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The special counsel's report said he never came to a determination about whether the president should be charged because of DOJ rules.


Former special counsel Robert Mueller testified Wednesday that he did not indict President Donald Trump on obstruction of justice charges in part because of Department of Justice guidelines barring a sitting president from being indicted — but experts were split over what he meant.

The bombshell moment came during questioning from Democratic Rep. Ted Lieu of California during Mueller's testimony to the House Judiciary Committee.

In his questioning, Lieu recounted the three elements needed for the crime of obstruction of justice.

"I believe a reasonable person looking at these facts could conclude that all three elements of the crime of obstruction of justice have been met, and I'd like to ask you the reason, again, you did not indict Donald Trump is because of the OLC (the DOJ's Office of Legal Counsel) opinion stating that you cannot indict a sitting president, correct?" Lieu asked.

"That is correct," Mueller asked.

Former U.S. Attorney for the Southern District of New York Preet Bharara — an Obama appointee who was initially asked to stay on the job by Trump before the president changed his mind and fired him — tweetedthe exchange was "very very close to Mueller saying that but for the OLC memo, Trump would have been indicted."

MSNBC legal analyst Ari Melber was less sure about the meaning of the exchange.

"Lieu's suggestion is along the lines that 'a crime was found but could not be charged.' But that's not what the report says. So there may be further debate about what Mueller meant by his reply to Lieu," Melber wrote.

The former FBI director had said in his his report he never reached a decision on whether Trump could or should be charged with obstruction because of the OLC guidance.

In early May, Attorney General William Barr testified before the Senate Judiciary Committee that Mueller "reiterated several times in a group meeting that he was not saying that but for the OLC opinion he would have found obstruction."

Republican Rep. Ken Buck of Colorado also asked Mueller about charging Trump.

"Was there sufficient evidence to convict President Trump or anyone else with obstruction of justice?" Buck asked.

"We did not make that calculation," Mueller said, citing the OLC opinion.

"The OLC opinion, Office of Legal Counsel, indicates that we cannot indict a sitting president. So one of the tools that a prosecutor would use is not there," Mueller said, pushing back against Buck's assertion he'd been "unfair" to the president by laying out the evidence of obstruction of justice.

"What we did is provide to the Attorney General in the form of a confidential memorandum, our understanding of the case, those cases that were brought, those cases that were declined, and that one case where a president cannot be charged with a crime," Mueller said.

Buck then asked, "could you charge a president with a crime after he left office?"

"Yes," Mueller replied.

"You believe that he committed — you could charge the President of the United States with obstruction of justice after he left office?" Buck continued.


"Yes," Mueller answered.

The back-and-forth led to some confusion and different analyses, because it alternated between whether "a" president could be charged later or "the" president could be charged.

"OMG Buck just walked RIGHT into it. He seriously just gave the Democrats the clip they want. He just gave Mueller a clear and concise moment to say the only reason Trump wasn't indicted is because DOJ policy prohibited it," tweeted national security lawyer Bradley Moss.

Lawyer and former Fox News and MSNBC host Greta Van Susteren tweeted that she believed the answer was ambiguous.

"Is this answer clear? Does this mean that Mueller believes enough evidence to indict or does it mean that under no circumstances can a sitting president be indicted?" she asked.

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