How Mueller's Investigation Into Trump Unfolds

If a case can be made that the president obstructed justice, Congress will have to act before the courts can.

Building his case.

Photographer: Alex Wong/Getty Images

Both President Donald Trump and his critics seem to think that special counsel Robert Mueller’s investigation, which has now reportedly expanded to include obstruction of justice, is focused on criminal charges. But when it comes to the president, that’s not necessarily true.

Sure, if Mueller finds evidence of criminal activity, he can charge Trump’s associates. But because he can’t charge Trump while he’s in office, Mueller’s investigation necessarily must focus first on showing Congress that the president has committed an impeachable offense -- which is different from a crime that can be proved in court.

In other words, the most important consequence of investigating the president for obstruction of justice is unlikely to be a criminal charge, at least not in the foreseeable future. It’s far more likely to be a report to Congress, like the one written by independent prosecutor Kenneth Starr in his investigation of President Bill Clinton, that includes material that the House of Representatives might or might not use to pass articles of impeachment.

Thus, no matter what Mueller finds, what happens to Trump’s presidency is going to rest ultimately on a political decision, not an independent legal one.

Although the Constitution never expressly says so, the majority view in the legal community is that the president can’t be criminally charged while he’s in office. The U.S. Supreme Court, however, has never ruled on the issue, having managed to avoid it during the Watergate era.

One of the basic reasons to think the president can’t be prosecuted is that prosecutions initiate in the executive branch, which is entirely under the power of the president. Perhaps a president could agree to allow himself to be criminally charged; but that isn’t going to be Donald Trump.

The other reason is the impeachment process itself, described the Constitution. Article 1, Section 3, Clause 7 says that House impeachment and a subsequent Senate conviction can only be punished by removal from office, “but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

The strong implication is that this two-part process is obligatory, not optional. First, the president must be impeached, convicted and removed. Then, and only then, can criminal charges be filed.

Logically, this also makes sense. A president charged with a crime would be practically unable to fulfill his duties as president, even if presumed innocent until proved guilty. And it would be strange for the judiciary branch to exert such power over the executive, for example by deciding whether the president should be held without bail.

Mueller and his team understand perfectly well that they can’t charge the president with a crime like obstruction of justice in the same way they would charge any other criminal defendant. What they can do is investigate thoroughly, collect evidence, create a record -- and then hand over that evidence to Congress.

Starr’s report to Congress was no neutral document, to be sure. It was a combination of an indictment, a narrative and a public attempt to justify the investigation itself. The authors understood perfectly well that it would enter into a highly politicized world -- and that it might not lead to the removal of the president, much less to any subsequent criminal prosecution. And of course, Clinton was impeached in the aftermath of the Starr report. But he wasn’t convicted by the Senate, and he was never criminally charged with perjury or obstruction of justice.

Starr even had something going for him that Mueller won’t. The statute creating the independent prosecutor’s office specified that Starr inform the House of Representatives of any information that “may constitute grounds for an impeachment.” There is no parallel provision in the Department of Justice regulations used to appoint Mueller as special counsel.

Worse, the regulations actually say the special counsel should keep the attorney general updated during the investigation and, at the end, provide the attorney general with a “confidential report explaining the prosecution or declination decisions reached by the Special Counsel.” Then the regulations provide that the attorney general should notify the judiciary committees of both houses of Congress regarding the conclusion of the special counsel’s investigation.

On this basis, Trump supporters could ultimately argue that the decision to send information to Congress rests with the attorney general, not the special counsel. And the attorney general reports to you-know-who.

In practice, Mueller can probably get away with doing what Starr did. Nothing in the regulations prohibits him from making public statements or reporting to Congress.

Mueller would be well advised to start thinking sooner rather than later about how to frame his eventual findings for public -- and congressional -- consumption.

Assume, for the moment, that there is some further evidence beyond former FBI Director James Comey’s testimony, and that Trump asked senior national security officials what he could do to put an end to the Russian investigation.

If Mueller thinks the evidence suffices to prove obstruction of justice under a criminal statute, he could say so in his report.

But that’s a different question from whether Trump committed a high crime or misdemeanor, which is what the Constitution requires for impeachment.

Starr’s report finessed the difference by insisting that it was up to Congress to determine what counts as a high crime or misdemeanor but then saying the independent prosecutor inevitably had to judge “the seriousness of the acts revealed by the evidence.”

Mueller would probably also leave the definition of high crimes and misdemeanors to Congress. If he believed and said that Trump was guilty of an ordinary obstruction crime, that would logically be enough for Congress.

What would be harder is if Mueller thinks that there isn’t enough evidence to prove definitively that Trump committed a criminal obstruction, but that his active obstruction was still an instance of a high crime or misdemeanor. To me, that eventuality seems very possible. As I’ve argued, the Comey testimony suggests a high crime but probably not a statutory crime.

In that case, Mueller should describe the nature of the president’s wrongdoing in his own narrative, whether addressed to Congress or the public.

But unless the configuration of the House and Senate were to change radically, or there is some major new information that we don’t know that Mueller discovers, it seems unlikely that Trump would be impeached and removed from office.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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