Davis: The shocking fact that Mueller never would have accused Trump of a crime

When you have a president who even his most ardent supporters admit lies frequently, a president who knows he lies and doesn’t care because he knows his supporters don’t care, it is important to identify what Mr. Mueller actually wrote in his report compared to Trump’s efforts to lie about it.  

The first Trump lie was when he claimed on Twitter and to the world that Mr. Mueller’s report had “exonerated” him on all charges, including criminal obstruction of justice. 

{mosads}William Barr, supposed to be the attorney general for the American people but who has acted more like the personal attorney for Mr. Trump (his own “Roy Cohn” as Mr. Trump would say), falsely implied that the obstruction-of-justice issue was a close call on the evidence. That is not what Mr. Mueller wrote.

In fact, Mr. Mueller wrote that no matter how strong and decisive the evidence, Mr. Mueller would never have found the crime of obstruction of justice by Mr. Trump.  

That’s right, Never.  

Credit CNN’s Michael Smerconish on last Saturday morning, April 20, on his always enlightening interview and analysis program for this remarkable insight. Here is the sentence, hiding in plain sight, cited by Smerconish (p. 2, V. II of the Mueller’s Report): 

“….[W]e determined not to apply an approach that could potentially result in a judgment that the President committed crimes.”

That’s right, no matter how strong the evidence Mueller wrote he never would have concluded that Trump had committed any crime or even a “potential” crime.

This is because, he explained, as an employee of the Justice Department, he was required to follow the Department’s policies against indicting a sitting president. (Note this contrasts with the attitude of then FBI Director James Comey, who decided it was OK for him to violate clear DOJ policies when he wrote his Oct. 28, 2016 letter to Congress, stating he had opened a “new” criminal investigation of Hillary Clinton’s email practices, just 11 days from election day,  because…well…because he was James Comey).

Mueller explained that since under DOJ polices he could not indict Trump even with substantial evidence of criminal obstruction, it would be unfair and violative of due process principles for him to publicly make such an accusation against Trump.  He wrote:  

“Fairness concerns counseled against potentially reaching that judgment when no charges can be brought. The ordinary means of an individual to respond to an accusation is through a speedy and public trial, with all the [due process] 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.”   

Interestingly, while Mueller did not find sufficient evidence of Trump’s or his campaign’s illegal collusion with Russian government officials to rig the election in Trump’s favor, the same policy of not indicting a president would suggest that he would not have accused Trump of this crime either, even with substantial evidence of collusion. 

In any event, Trump willfully lied when he claimed that Mueller had “exonerated” him from a charge of obstruction of justice. In fact, Mueller stated exactly the opposite: 

“…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….Accordingly, while this report does not conclude that the president committed a crime, it does not exonerate him.  (p. 2, V. II. Emph. added.)

The second indisputable Trump lie is when Trump told ABC’s Jonathan Karl, in a televised interview in June 2017 as well as in other public comments, that he would agree to an interview with the Mueller team because he had nothing to hide. But then he refused to do the interview. And when Trump agreed only to answer written questions from Mr. Mueller, the same man who so often brags about how smart he is and how great his memory is responded in writing again and again, dozens of times, “I don’t remember” or “I can’t recall.”  Seriously? 

Trump may be right that his core supporters don’t care when he lies. (I believe, in fact, many do). But he may be wrong when many of his supporters learn that Trump’s lies have hurt their livelihoods and their families, such as trade barriers that hurt Trump-country farmers or Medicaid and education cuts that hurt Trump-supporting working class families.  

Democrats would be better served putting more emphasis on those lies that hit home in Trump country than focusing on impeachment.

But make no mistake – Trump probably escaped an obstruction indictment only because he is president. After Jan. 20, 2021, he probably won’t have that protection. Then Mr. Trump will need a good criminal defense lawyer.  

Davis served as special counsel to former President Clinton (1996-98) and was a member of President George W. Bush’s Privacy and Civil Liberties Oversight Board (2006-7). He is co-founder of the law firm of Davis Goldberg & Galper PLLC and the strategic media and public affairs firm, Trident DMG. He authored “Crisis Tales: Five Rules for Coping with Crises in Business, Politics, and Life” (Simon & Schuster 2013).  He can be followed on Twitter @LannyDavis.