Special Prosecutor Robert Mueller’s investigation into alleged collusion between President Donald Trump and Russia appears to be shifting directions and focusing on obstruction of justice or perjury. These are similar to the charges Ken Starr contemplated during his investigation of the Clinton White House.
But based on what we know, combined with Mueller’s limited powers, at the end of the Russia probe Mueller will not indict Trump.
To understand why this is the case, first, you have to understand Mueller’s position as a “special counsel,” as opposed to an independent counsel, which was Ken Starr’s role.
A special counsel is appointed and overseen by the Department of Justice (DOJ). In the present case, Mueller reports to the Deputy Attorney General Rod Rosenstein.
For all practical purposes, it’s best to think of Mueller like another U.S. attorney, except instead of covering specific geographic areas, such as a state, his jurisdiction concerns only the Russia probe.
As part of the Department of Justice, Mueller is subject to all its rules and regulations, including DOJ specific procedures, all of which is laid out in 28 CFR 600.7. Ken Starr, on the other hand, drew his authority from the Office of the Independent Counsel (OIC), an office and statute that expired in 1999.
The OIC had broad power, oversight, and less supervision. Anyone with authority derived from these laws could disregard particular DOJ regulations to keep an investigation going.
This distinction is vital because the powers of a special prosecutor are far narrower than the OIC. In 1999, towards the end of his investigation, Ken Starr believed he had the constitutional and prosecutorial power to indict a sitting president.
He even commissioned a report from a renowned law professor, Ronald Rotunda, to ascertain whether or not the OIC had the power to indict a sitting president, and the conclusion was affirmative.
Mueller’s powers differ significantly from Starr. While both had broad investigative power, Mueller’s choices on what to do at the end of the investigation are limited.
28 CFR 600.8 governs what a special counsel can do at the end of an inquiry:
At the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.
What Mueller will create in the end is a report detailing why he chose to prosecute some individuals or not. That statement will then be given to DAG Rosenstein for review and submittal to Congress, should the DOJ deem that necessary.
His opinion is unlikely to recommend prosecution of the president because the precedent within the DOJ is that presidents are immune from prosecution while in office.
The Office of Legal Counsel (OLC) is the section of the DOJ responsible for the opinions surrounding indicting a sitting president. They’ve issued two memos on this front, first in 1973 and again in 2000.
Both times, the OLC found presidents have temporary immunity from criminal prosecution because of their unique status in the constitution.
It’s worth noting there is no text in the constitution granting any such immunity to the president. The OLC’s analysis rests on the idea that the only way to remove a sitting president is the impeachment clauses of the constitution.
An indictment, trial, and potential imprisonment of a sitting president would, in effect, remove him from office without an impeachment.
The OLC is concerned with prosecutors and juries attempting to circumnavigate the impeachment clauses of the constitution and trying to shortcut the removal process. Generally speaking, it’s widely believed in constitutional law circles that even if a prosecutor had the power to indict, try, and sentence a sitting president, the president would remain in office, working as president, until either impeached or his term ends.
The only way to remove a president is through impeachment.
The OLC takes this analysis a step further and says that an indictment by itself is enough to undermine a presidency to the effect of a removal without impeachment. They argue that if a prosecutor is allowed to indict a sitting president, the political ramifications — both foreign and domestic — could prove so damaging that the president could effectively be incapacitated, in the sense of the 25th Amendment, which would constitute removal in effect, if not fact.
The short version of all the legal analysis is that the OLC holds that the president is immune while in office from indictments and criminal prosecutions outside of impeachment. They reached this finding in 1973 and reaffirmed it in 2000.
These opinions are essential because they’re a part of the official governing policies of the DOJ, which further means Robert Mueller is subject to them.
Official DOJ policy says that it is unconstitutional for Mueller to pursue prosecution of a sitting president. These opinions aren’t binding, of course, and Mueller could request the DOJ to revisit the memos.
However, it appears highly unlikely the DOJ would switch direction all of a sudden and go against official policy developed under both Republican and Democratic administrations.
Mueller knows all of this, of course, and knows this policy will guide his final product. Assuming for the sake of argument, let’s say Mueller has direct evidence Trump has obstructed justice and perjured himself, what then?
What he’s likely to do is put all this evidence in a final report, detailing what Trump did and didn’t do, and why Mueller can’t prosecute. He would create the paper trail necessary for Congress to engage in impeachment proceedings.
Precedence also dictates Mueller’s decisions. Both the Watergate prosecutors and Starr’s team declined to indict sitting presidents, choosing instead to allow the impeachment process work through the evidence.
Mueller isn’t going to indict Trump. The only way Trump would have to answer for any criminal charges is through the impeachment process.
And for that process to have a chance, Democrats will have win two-thirds majorities in both chambers of Congress, form an impeachment committee, and subpoena everything from Mueller’s investigation.
We’re a long ways off from any of that happening.