By Randall D. Eliason
Contributing columnist
Yesterday at 4:47 p.m. EST
It's time for the Biden Justice Department to issue a report on the Mueller report.
There are multiple criminal investigations currently swirling around former president Donald Trump. The Justice Department is investigating the Jan. 6 riot in Washington and attempts to overturn the 2020 presidential election, with Attorney General Merrick Garland vowing to pursue those criminally responsible “at any level.” Prosecutors in Georgia are investigating Trump’s alleged efforts to interfere with the election results in that state. New York prosecutors are investigating Trump and his businesses for potential fraud.
Opinions to start the day, in your inbox. Sign up.
But nearly three years ago, special counsel Robert S. Mueller III presented an exhaustive report detailing almost a dozen instances of possible obstruction of justice by Trump in connection with the investigation of Russian interference in the 2016 presidential election. The five-year statute of limitations on the first such instance — Trump’s alleged request to then-FBI Director James B. Comey to drop the criminal investigation of disgraced former national security adviser Michael Flynn — expires on Feb. 14. Other acts of possible obstruction soon will be similarly time-barred.
The fate of Mueller’s report when it was released is by now a familiar story. The special counsel outlined damning evidence of Trump’s possible criminal acts. But he decided that in light of the Justice Department policy against indicting a sitting president, he would not make a “traditional prosecutorial judgment” about whether charges were justified. The report therefore did not accuse Trump of a crime, but pointedly noted that it also did not exonerate him.
William P. Barr, attorney general at the time, infamously spun Mueller’s findings before the report’s public release, announcing that his own review had concluded there was no obstruction. Once the full, redacted report was released, it became clear how misleading Barr’s summary had been. More than a thousand former federal prosecutors signed a letter saying the evidence would justify an indictment. Trump, on the other hand, maintained that the report was a “complete and total exoneration.”
It was a foregone conclusion that Barr’s Justice Department would not prosecute the president. But there were two other potential ways for Trump to be held accountable. One would have been for Congress to impeach him for obstruction of justice. But although it later impeached Trump for attempting to extort Ukraine and for the events of Jan. 6 at the U.S. Capitol, Congress chose not to do so based on the findings in the Mueller report.
The other possibility was that Trump could be charged with obstruction if he left office in 2021. In congressional testimony in 2019 about his report, Mueller noted that a sitting president could be indicted once he left office. Once Joe Biden was sworn in as president, there was no policy impediment to his Justice Department pursuing the obstruction charges.
But more than a year has passed, and we have heard nothing but crickets from Justice about the Mueller report. Admittedly, the department has been a little busy handling, among other things, the massive investigation into efforts to overthrow the election. But the clock is ticking on the potential obstruction charges outlined by Mueller. Is anyone at Justice watching that clock?
I’m not one who argues that Mueller presented a slam-dunk case. No one should underestimate how challenging it would be to prosecute Trump for obstruction. Some of the potential charges are stronger than others, but all of them would face significant legal and evidentiary hurdles. In light of those hurdles, prosecutors might reasonably conclude that Trump’s ultimately unsuccessful attempts at obstruction do not merit the political and constitutional turmoil that would result from the first criminal prosecution of a former president.
But many believe the evidence of Trump’s obstruction is overwhelming. And if the passage of time starts to close the windows on possible obstruction charges, the public will be left to wonder whether the Justice Department even considered them. That’s not good for the department — or for the principle that no one, including a former president, is above the law.
The Justice Department ought to announce either that it is actively evaluating the obstruction charges or that it has decided not to pursue them. It’s true that Justice usually doesn’t issue statements about cases it declines to bring, but this is not a usual case. There is already a massive public record about these events, so privacy concerns about those under investigation do not apply. And there is a tremendous public interest in knowing the resolution of any case involving a former — and possibly future — president.
A decision not to prosecute Trump for obstruction may be defensible. But if that’s the decision, the Justice Department should defend it. It shouldn’t leave the country wondering whether it just ducked the issue by allowing Trump to run out the clock.
Contributing columnist
Yesterday at 4:47 p.m. EST
It's time for the Biden Justice Department to issue a report on the Mueller report.
There are multiple criminal investigations currently swirling around former president Donald Trump. The Justice Department is investigating the Jan. 6 riot in Washington and attempts to overturn the 2020 presidential election, with Attorney General Merrick Garland vowing to pursue those criminally responsible “at any level.” Prosecutors in Georgia are investigating Trump’s alleged efforts to interfere with the election results in that state. New York prosecutors are investigating Trump and his businesses for potential fraud.
Opinions to start the day, in your inbox. Sign up.
But nearly three years ago, special counsel Robert S. Mueller III presented an exhaustive report detailing almost a dozen instances of possible obstruction of justice by Trump in connection with the investigation of Russian interference in the 2016 presidential election. The five-year statute of limitations on the first such instance — Trump’s alleged request to then-FBI Director James B. Comey to drop the criminal investigation of disgraced former national security adviser Michael Flynn — expires on Feb. 14. Other acts of possible obstruction soon will be similarly time-barred.
The fate of Mueller’s report when it was released is by now a familiar story. The special counsel outlined damning evidence of Trump’s possible criminal acts. But he decided that in light of the Justice Department policy against indicting a sitting president, he would not make a “traditional prosecutorial judgment” about whether charges were justified. The report therefore did not accuse Trump of a crime, but pointedly noted that it also did not exonerate him.
William P. Barr, attorney general at the time, infamously spun Mueller’s findings before the report’s public release, announcing that his own review had concluded there was no obstruction. Once the full, redacted report was released, it became clear how misleading Barr’s summary had been. More than a thousand former federal prosecutors signed a letter saying the evidence would justify an indictment. Trump, on the other hand, maintained that the report was a “complete and total exoneration.”
It was a foregone conclusion that Barr’s Justice Department would not prosecute the president. But there were two other potential ways for Trump to be held accountable. One would have been for Congress to impeach him for obstruction of justice. But although it later impeached Trump for attempting to extort Ukraine and for the events of Jan. 6 at the U.S. Capitol, Congress chose not to do so based on the findings in the Mueller report.
The other possibility was that Trump could be charged with obstruction if he left office in 2021. In congressional testimony in 2019 about his report, Mueller noted that a sitting president could be indicted once he left office. Once Joe Biden was sworn in as president, there was no policy impediment to his Justice Department pursuing the obstruction charges.
But more than a year has passed, and we have heard nothing but crickets from Justice about the Mueller report. Admittedly, the department has been a little busy handling, among other things, the massive investigation into efforts to overthrow the election. But the clock is ticking on the potential obstruction charges outlined by Mueller. Is anyone at Justice watching that clock?
I’m not one who argues that Mueller presented a slam-dunk case. No one should underestimate how challenging it would be to prosecute Trump for obstruction. Some of the potential charges are stronger than others, but all of them would face significant legal and evidentiary hurdles. In light of those hurdles, prosecutors might reasonably conclude that Trump’s ultimately unsuccessful attempts at obstruction do not merit the political and constitutional turmoil that would result from the first criminal prosecution of a former president.
But many believe the evidence of Trump’s obstruction is overwhelming. And if the passage of time starts to close the windows on possible obstruction charges, the public will be left to wonder whether the Justice Department even considered them. That’s not good for the department — or for the principle that no one, including a former president, is above the law.
The Justice Department ought to announce either that it is actively evaluating the obstruction charges or that it has decided not to pursue them. It’s true that Justice usually doesn’t issue statements about cases it declines to bring, but this is not a usual case. There is already a massive public record about these events, so privacy concerns about those under investigation do not apply. And there is a tremendous public interest in knowing the resolution of any case involving a former — and possibly future — president.
A decision not to prosecute Trump for obstruction may be defensible. But if that’s the decision, the Justice Department should defend it. It shouldn’t leave the country wondering whether it just ducked the issue by allowing Trump to run out the clock.
