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EffieBlack

(14,249 posts)
Wed May 29, 2019, 01:23 PM May 2019

Don't buy the lie that Mueller said he believes it's unconstitutional to indict a sitting president

Last edited Wed May 29, 2019, 02:44 PM - Edit history (1)

He didn't say that.

"We did not, however, make a determination as to whether the president did commit a crime. The introduction to the volume two of our report explains that decision. It explains that under long-standing Department policy, a President cannot be charged with a federal crime while he is in office. That is unconstitutional. Even if the charge is kept under seal and hidden from public view, that too is prohibited. The special counsel’s office is part of the Department of Justice and by regulation it was bound by that Department policy. Charging the president with a crime was, therefore, not an option we could consider. "

He stated clearly and unequivocally that it's DOJ policy that it's unconstitutional to indict a sitting president. He offered nothing of his first view or subject

Claiming he said otherwise is a lie and is, unfortunately, being spread on DU for some reason.

We're being played. Don't fall for it!

78 replies = new reply since forum marked as read
Highlight: NoneDon't highlight anything 5 newestHighlight 5 most recent replies
Don't buy the lie that Mueller said he believes it's unconstitutional to indict a sitting president (Original Post) EffieBlack May 2019 OP
Thank you Effie. GemDigger May 2019 #1
I agree, I was 'confused' about his statement: That is unconstitutional. elleng May 2019 #2
I think the key word is it is their policy still_one May 2019 #5
Right, and too damn bad. elleng May 2019 #6
He is following the DOJ constraint. If the DOJ said that it was Constitutional to indict a sitting still_one May 2019 #3
To be fair... llmart May 2019 #4
Thanks elleng May 2019 #8
The sentence isn't in the least ambiguous EffieBlack May 2019 #11
I have to disagree. llmart May 2019 #15
Why would anyone assume Mueller suddenly injected an opinion in the middle of a paragraph EffieBlack May 2019 #25
You missed my point. llmart May 2019 #26
I listened to the audio again. It sounds like he said EffieBlack May 2019 #27
Actually, if he had said "that it's unconstitutional" there would be no argument Goodheart May 2019 #30
Actually... taken out of context, those words are misused. ehrnst May 2019 #59
You really show your lawyering chops in this comment. emmaverybo May 2019 #53
"Clearly and unequivocally"? LOL. Er, no. Goodheart May 2019 #7
Let me clarify: EffieBlack May 2019 #12
Let ME clarify: you're wrong. Goodheart May 2019 #16
INCORRECT. ehrnst May 2019 #63
You specifically said "he's a very poor grammarian". nt greyl May 2019 #41
Still wrong on your interpretation of his words. You are taking a phrase out of context. ehrnst May 2019 #77
Bless you. H2O Man May 2019 #9
Thank you! nt emmaverybo May 2019 #10
K&R BlueJac May 2019 #13
Mueller didn't indict the President because he couldn't under DoJ rules DeminPennswoods May 2019 #14
Which makes all this discussion of his personal view on unconstitutionality beside the point. Goodheart May 2019 #19
"Plain language" ehrnst May 2019 #64
True. But there are people here trying to obfuscate that point EffieBlack May 2019 #20
Post removed Post removed May 2019 #23
ppl sincerely pissed off at Mueller is doing trumps dirty work? many long time members. you Kurt V. May 2019 #65
You truly believe that Mueller was "doing Trump's dirty work" ehrnst May 2019 #66
no i think Mueller was acting in the the constraints he was given. my issue is with effie implying Kurt V. May 2019 #67
I think that focusing our rage at allies doesn't help our goals. ehrnst May 2019 #69
Absolutely!!! we're allies here. Let's start right there. Kurt V. May 2019 #70
.. ehrnst May 2019 #72
Yes, I certainly do believe that EffieBlack May 2019 #74
Once Again Effie Me. May 2019 #17
If it was unconstitutional that would make the POTUS above the law and, therefore, a king. Vinca May 2019 #18
Correct. Goodheart May 2019 #21
Correct. Mueller is constrained by what they interpret as unconstitutional. ehrnst May 2019 #78
It is long standing DOJ policy BECAUSE it's in the Constitution. Scoopster May 2019 #22
The Constitution doesn't say that. Goodheart May 2019 #24
The DOJ subscribes to that interpretation. ehrnst May 2019 #61
So what? jberryhill May 2019 #28
Exactly! EffieBlack May 2019 #29
"I suspect the purpose..." jberryhill May 2019 #31
Nobody here has said nor insinuated that it makes a difference. Goodheart May 2019 #32
You apparently haven't seen the several OPs who seem to think t makes a difference. EffieBlack May 2019 #35
You're missing a handful of OPs that in fact, say just that. LanternWaste May 2019 #37
Including your posts? ehrnst May 2019 #62
Thanks. Heard him say it and instantly knew it would be mischaracterized by the Atticus May 2019 #33
DU is being swarmed today Hekate May 2019 #34
Yup EffieBlack May 2019 #36
The base of my skull is telling me my blood pressure's rising.I need to take a break from the idiocy Hekate May 2019 #38
Go shopping EffieBlack May 2019 #39
Sure is mcar May 2019 #68
who said that? i figured everyone knew that it was doj policy. Kurt V. May 2019 #40
+1, the more this goes on the more it looks like shit uponit7771 May 2019 #51
Plenty of people said it StarfishSaver May 2019 #54
Members of a political site should be more informed than that but ppl are worked up. so it goes Kurt V. May 2019 #58
He just should have kept to his original report being it was policy & kept the unconstitutional yaesu May 2019 #42
Mueller is not a policy maker or breaker. Some POTUS candidates pledge to reverse that OLC policy. Marcuse May 2019 #43
There's almost zero chance of indictment while he's in office. Honeycombe8 May 2019 #44
The US House has the SOLE RIGHT via the US Constitution.... LovingA2andMI May 2019 #46
My post was about indictment, as so many keep insisting the Dems pursue. Honeycombe8 May 2019 #52
Congress has no power to indict anyone StarfishSaver May 2019 #49
I see. I thought Congress could. But doesn't make much difference, with the current SCT.nt Honeycombe8 May 2019 #50
I agree with your interpretation. That whole paragraph is about the Department's policy, pnwmom May 2019 #45
Tricky Dick said. gilligan May 2019 #47
My impression of the entire statement Mr.Bill May 2019 #48
More to me like he was getting something on the record. live love laugh May 2019 #57
This DOJ policy needs to be changed. Lonestarblue May 2019 #55
Exactly. Having a policy that puts the president above the law is what's unconstitutional AndJusticeForSome May 2019 #56
Well, there is the 25th amendment which is quicker than impeachment ehrnst May 2019 #60
People are seeing what they want to see. TwilightZone May 2019 #71
Thanks for trying to smarten up DU overall. Hortensis May 2019 #73
You nailed it, Effie! StarfishSaver May 2019 #75
It was pretty obvious to me that he was reflecting what the OLC opinions said, The Velveteen Ocelot May 2019 #76

elleng

(130,156 posts)
2. I agree, I was 'confused' about his statement: That is unconstitutional.
Wed May 29, 2019, 01:28 PM
May 2019

I don't think the DoJ policy IS that indicting is unconstitutional, more like 'inconvenient.'

It's clear, however, he was and is going to comply with DoJ's position on the subject.

still_one

(91,965 posts)
3. He is following the DOJ constraint. If the DOJ said that it was Constitutional to indict a sitting
Wed May 29, 2019, 01:29 PM
May 2019

president, he would indicated that.

The real question on whether a sitting President can be indicted or not would need to be decided by the courts, and it is doubtful that will happen.

The only path to indict trump would be through a successful impeachment and removal from office or his resignation, after which he could be indicted

at least that is how I understand it


Thanks Effie for clarifying this


llmart

(15,501 posts)
4. To be fair...
Wed May 29, 2019, 01:29 PM
May 2019

the sentence is ambiguous. He doesn't clarify what "That" is referring to. Was he referring to the policy or the charging of a sitting President with a federal crime?

He should have made it clearer or maybe that was his intent. Either way, I can see how it would be misinterpreted.

 

EffieBlack

(14,249 posts)
11. The sentence isn't in the least ambiguous
Wed May 29, 2019, 01:42 PM
May 2019

If you read it in the context of the entire paragraph, it's impossible to rationally assume that he was expressing his personal opinion - unless you think that for the only time in the entire statement he suddenly shifted gears to inject his personal opinion (without identifying it is such) into the middle of his explanation about DOJ policy - and then immediately switched back in the very next sentence to talking about the policy again.

Nowhere in his statement did Mueller express a personal opinion, so it's illogical to assume that that one sentence was is opinion, especially in the context in which it was said.

llmart

(15,501 posts)
15. I have to disagree.
Wed May 29, 2019, 01:47 PM
May 2019

Either way a person interprets that three-word statement would be as an opinion.

Either Mueller is saying the policy is unconstitutional or he's saying charging a sitting president is unconstitutional. Either one could be construed as his opinion. That's why there's such a disagreement right now as to what he was referring to. He should have been more clear.

 

EffieBlack

(14,249 posts)
25. Why would anyone assume Mueller suddenly injected an opinion in the middle of a paragraph
Wed May 29, 2019, 02:00 PM
May 2019

about a policy when he offered no opinion in any other part of his statement?

And if it were his opinion that it was unconstitutional to indict a sitting president, he wouldn't need reference the DOJ opinion at all.

But even if that is his opinion, so what? His opinion is irrelevant in the investigation. The DOJ opinion controls his actions and, as he said, under the DOJ opinion, he could not charge the president.

This cherry picking one sentence out of context and trying to turn it into something is a tactic to distract from the overall statement. It looks like you fell for it. That's unfortunate.

llmart

(15,501 posts)
26. You missed my point.
Wed May 29, 2019, 02:06 PM
May 2019

Either way one would construe his statement IS a personal opinion. It's either his personal opinion that charging a sitting president is unconstitutional or it's his opinion that the DOJ policy is unconstitutional.

I'm not interpreting it either way and haven't from the start of this discussion. I merely said it was ambiguous and could have been stated more clearly what he was referring to.

 

EffieBlack

(14,249 posts)
27. I listened to the audio again. It sounds like he said
Wed May 29, 2019, 02:09 PM
May 2019

"under long-standing Department policy, a President cannot be charged with a federal crime while he is in office, that it's unconstitutional" which is even clearer.

But either way, I don't think anyone not looking to statement apart for some reason could interpret it as anything other than a reference to department policy. And the only reason to make such a big deal of it, in my view, is to intentionally distract from the power of what he said - that the only reason he did not indict the president was that he prohibited by department policy from doing so.

Why anyone would want to stomp all over that message with a picayune claim that he personally agrees with the department policy?

On Edit: the transcript says "That is unconstitutional"

Goodheart

(5,264 posts)
30. Actually, if he had said "that it's unconstitutional" there would be no argument
Wed May 29, 2019, 02:16 PM
May 2019

His actual words were "that is unconstitutional". Something different.

And if you go back and watch his presentation he sort of threw that in as an aside after a brief pause.

It's clear to me that he was agreeing with the DOJ's rationale for non-indictment. Which is all beside the point, anyway, because he would not have violated DOJ policy, anyway.

I actually don't understand what the point of this thread is. It doesn't matter either way... whether or not he was sharing the opinion or merely passing it on. Neither interpretation adds nor detracts from trump's guilt.

 

ehrnst

(32,640 posts)
59. Actually... taken out of context, those words are misused.
Wed May 29, 2019, 05:24 PM
May 2019

Last edited Thu May 30, 2019, 06:43 AM - Edit history (1)

It's clear to me that he was agreeing with the DOJ's rationale for non-indictment.


I wish I was a mind reader. It would be cool.


I actually don't understand what the point of this thread is.


That's evident.

It doesn't matter either way... whether or not he was sharing the opinion or merely passing it on.


That's a U turn from the first part of your post....

Perhaps you learned something from others who have posted here?





Goodheart

(5,264 posts)
7. "Clearly and unequivocally"? LOL. Er, no.
Wed May 29, 2019, 01:33 PM
May 2019

He specifically said "That is unconstitutional".

Unless he's a very poor grammarian it's obvious that he shares the opinion.

Not that Mueller is/should be the be all and end all of constitutional interpretation in any case.

 

EffieBlack

(14,249 posts)
12. Let me clarify:
Wed May 29, 2019, 01:45 PM
May 2019

It's clear and unambiguous to anyone who can read and interpret the spoken and written English language.

 

ehrnst

(32,640 posts)
63. INCORRECT.
Wed May 29, 2019, 05:37 PM
May 2019

Last edited Thu May 30, 2019, 07:27 AM - Edit history (1)



See post #77 for an explanation about why you get this wrong.
 

ehrnst

(32,640 posts)
77. Still wrong on your interpretation of his words. You are taking a phrase out of context.
Thu May 30, 2019, 07:25 AM
May 2019

Here's where you're getting it wrong:

Remember when the GOP doing the very same thing to Obama, when they took "You didn't build that" out of context to 'prove' that he doesn't think business owners built their business. To make it clearer for you, I've italicized the context, and bolded what the RW extracted:

If you were successful, somebody along the line gave you some help. There was a great teacher somewhere in your life. Somebody helped to create this unbelievable American system that we have that allowed you to thrive. Somebody invested in roads and bridges. If you've got a business – you didn't build that. Somebody else made that happen. The Internet didn't get invented on its own. Government research created the Internet so that all the companies could make money off the Internet.


They misrepresented what the "thats" referred to. "That" refers to "this unbelievable American system that we have that allowed you to thrive," not "your business."


Now, here's how you did that in Mueller's statement:

The introduction to the Volume 2 of our report explains that decision. It explains that under long-standing department policy, a president cannot be charged with a federal crime while he is in office. That is unconstitutional. Even if the charge is kept under seal and hidden from public view, that, too, is prohibited.


So, "that is unconstitutional" refers to what the DOJ policy states - a continuation of the description of the DOJ policy - what is allowed and what is prohibited as 'unconstitutional.' It is quoting the policy, not making a personal constitutional law judgement. That is the context you continually refuse to acknowledge in an effort to deny that you made a mistake once you have been corrected.

One has far more credibility when one acknowledges mistakes than when one doubles down on them.




Goodheart

(5,264 posts)
19. Which makes all this discussion of his personal view on unconstitutionality beside the point.
Wed May 29, 2019, 01:55 PM
May 2019

But the fact of plain language says that he shares the DOJ opinion of its unconstitutionality.

 

EffieBlack

(14,249 posts)
20. True. But there are people here trying to obfuscate that point
Wed May 29, 2019, 01:55 PM
May 2019

by blatantly mischaracterizing his comment with a ridiculous interpretation that doesn't undermine the point but does serve to distract from it.

Wonder why they're so eager to do Trump's dirty work...

Response to EffieBlack (Reply #20)

Kurt V.

(5,624 posts)
65. ppl sincerely pissed off at Mueller is doing trumps dirty work? many long time members. you
Wed May 29, 2019, 06:24 PM
May 2019

surely don't believe that....

 

ehrnst

(32,640 posts)
66. You truly believe that Mueller was "doing Trump's dirty work"
Wed May 29, 2019, 06:29 PM
May 2019

after his statement that all but stated he's guilty?

If Mueller was in the bag for DT, how on earth do you explain this statement:

‘If We Had Confidence That the President Did Not Commit a Crime, We Would Have Said So"



"Length of time on DU" does not endow anyone with mind reading powers, or a constitutional law degree, or expertise on DOJ policy.

Kurt V.

(5,624 posts)
67. no i think Mueller was acting in the the constraints he was given. my issue is with effie implying
Wed May 29, 2019, 06:42 PM
May 2019

that ppl that are legit upset are helping trump on purpose instead of an ordinary emotional reaction

 

ehrnst

(32,640 posts)
69. I think that focusing our rage at allies doesn't help our goals.
Wed May 29, 2019, 06:54 PM
May 2019

I've seen it plenty on DU.

And it does play into the hands of the GOP.

 

ehrnst

(32,640 posts)
72. ..
Wed May 29, 2019, 07:07 PM
May 2019


I think that Pelosi and Mueller are allies, as well, though Mueller would get flayed like Strzok was if he admitted it.
 

ehrnst

(32,640 posts)
78. Correct. Mueller is constrained by what they interpret as unconstitutional.
Thu May 30, 2019, 07:29 AM
May 2019

Mueller does not set DOJ policy, nor has he indicated any opinion on if it is correct constitutionally or not. That is not his job as Special Prosecutor.

Glad that's settled.

Scoopster

(423 posts)
22. It is long standing DOJ policy BECAUSE it's in the Constitution.
Wed May 29, 2019, 01:58 PM
May 2019

Look, we may not like it, but that is literally what the Constitution says - the House of Representatives is the only body that can indict a sitting President, and the only body that can try & convict on that charge is the Senate. Any further legal action can be taken by the Executive and Judicial branches after he is out of office.

Mueller is doing his best to stand up for the Constitution during this mess, despite how anyone may feel about him.

Goodheart

(5,264 posts)
24. The Constitution doesn't say that.
Wed May 29, 2019, 01:59 PM
May 2019

You might argue that the doctrine of separation of powers mandates such a conclusion but I believe that's a stretch, at best.

 

ehrnst

(32,640 posts)
61. The DOJ subscribes to that interpretation.
Wed May 29, 2019, 05:27 PM
May 2019

And that is what constrained Mueller.

What he thinks of it isn't clear, but since he did everything but say that POTUS is guilty of a crime, I think he's not too much of a fan.

 

jberryhill

(62,444 posts)
28. So what?
Wed May 29, 2019, 02:13 PM
May 2019

What difference does it make?

Robert Mueller's personal opinion on the subject is of the same practical effect as anyone else's - i.e. nil.
 

EffieBlack

(14,249 posts)
29. Exactly!
Wed May 29, 2019, 02:14 PM
May 2019

but some people are making a big deal of it as if it does make a difference... I suspect the purpose is to deflect from the import of saying the only reason he did not charge Trump was that he was prohibited by the DOJ rule.

Goodheart

(5,264 posts)
32. Nobody here has said nor insinuated that it makes a difference.
Wed May 29, 2019, 02:18 PM
May 2019

Sorry, but your entire thread is pointless.

 

EffieBlack

(14,249 posts)
35. You apparently haven't seen the several OPs who seem to think t makes a difference.
Wed May 29, 2019, 02:50 PM
May 2019

But for someone who thinks it doesn't make a difference, you're spending an awful lot of time responding to my posts about it.

 

LanternWaste

(37,748 posts)
37. You're missing a handful of OPs that in fact, say just that.
Wed May 29, 2019, 02:54 PM
May 2019

"Sorry, but your entire response is pointless."

Atticus

(15,124 posts)
33. Thanks. Heard him say it and instantly knew it would be mischaracterized by the
Wed May 29, 2019, 02:30 PM
May 2019

Trumpies. It is disappointing to see it repeated here.

Let's please insist on hearing or reading WHAT WAS ACTUALLY SAID, not what some time-filling talking head or---worse---someone like Sanders or Giuliani SAYS was said.

There's plenty to be outraged about without inventing additional reasons.

 

EffieBlack

(14,249 posts)
36. Yup
Wed May 29, 2019, 02:51 PM
May 2019

We moved from the non-stop attacks on Speaker Pelosi to a pile-on on Mueller.

A sure sign that Mueller drew blood...

Hekate

(90,202 posts)
38. The base of my skull is telling me my blood pressure's rising.I need to take a break from the idiocy
Wed May 29, 2019, 02:57 PM
May 2019

...here. Gaaah.

Nicolle Wallace wll be on the tv-machine in another hour (1:00 my time), and her panel should be good. Or I could just record her and shop for those picture-frames I need.

mcar

(42,210 posts)
68. Sure is
Wed May 29, 2019, 06:49 PM
May 2019

The "Dems are bad" parade is rolling through. Also the "Mueller betrayed us!!11" sideshow.

Kurt V.

(5,624 posts)
58. Members of a political site should be more informed than that but ppl are worked up. so it goes
Wed May 29, 2019, 05:20 PM
May 2019

my position hasn't changed but I've moved on bc the president, any president is in fact above the law.

yaesu

(8,020 posts)
42. He just should have kept to his original report being it was policy & kept the unconstitutional
Wed May 29, 2019, 03:29 PM
May 2019

statement out of it, period.

Honeycombe8

(37,648 posts)
44. There's almost zero chance of indictment while he's in office.
Wed May 29, 2019, 03:43 PM
May 2019

Mueller didn't, and won't. He gave his opinion on the matter, as subject to the DOJ policy. Forget about Mueller.

The Dems in the House could try. It would be litigated, ending up in the Supreme Court.

Does anyone think that Roberts, Alito, Thomas, Gorsuch, and Kavanaugh are going to find that Trump can be indicted?

He can be indicted after he leaves office, if the statute of limitations hasn't run.

LovingA2andMI

(7,006 posts)
46. The US House has the SOLE RIGHT via the US Constitution....
Wed May 29, 2019, 03:50 PM
May 2019

to Impeach. The US Senate has the SOLE RIGHT to Remove the POTUS if they so wish. The Supreme Court has NOTHING to do with either. #FACTS

Honeycombe8

(37,648 posts)
52. My post was about indictment, as so many keep insisting the Dems pursue.
Wed May 29, 2019, 04:15 PM
May 2019

IMO, that's a waste of time, because the S.Ct. won't rule that a sitting President can be indicted.

The Dems can impeach, for historical purposes. The current Senate won't impeach him, so he'll remain in office, like Bill Clinton did.

Looks like nothing's changed, as far as what the Democrats can do about this criminal in the Presidency.

 

StarfishSaver

(18,486 posts)
49. Congress has no power to indict anyone
Wed May 29, 2019, 04:11 PM
May 2019

That's an executive branch function.

The only way that would get a court involved is for a prosecutor to indict the president and he tries to quash the indictment. That's not likely to happen at the federal level under this administration is long as the Justice Department is under the control of Trump's lackeys.

It's possible that a state prosecutor could trigger a court challenge by indicting the president under state law. the president would likely try to quash the indictment and the case would end up in federal court. Although it's a state prosecution, the Federal Court could rule on the constitutionality of a sitting president being indicted, and the ruling would likely apply to federal prosecutions as well.

pnwmom

(108,925 posts)
45. I agree with your interpretation. That whole paragraph is about the Department's policy,
Wed May 29, 2019, 03:46 PM
May 2019

not the SC's personal opinion.

Mr.Bill

(24,104 posts)
48. My impression of the entire statement
Wed May 29, 2019, 03:58 PM
May 2019

was that he read it as if he was a hostage with a gun pointed at his head. It sounded like he didn't even write it.

live love laugh

(13,008 posts)
57. More to me like he was getting something on the record.
Wed May 29, 2019, 05:06 PM
May 2019

He reinforced the notion that a sitting president is above the law setting the stage for a court ruling.

Lonestarblue

(9,880 posts)
55. This DOJ policy needs to be changed.
Wed May 29, 2019, 04:34 PM
May 2019

In effect, it says that a president could openly embezzle from the government, deal drugs from the White House, run a prostitution ring, attack and physically assault people and not be indicted for any crime. All such a president needs to do is resign before a new team is sworn in so his former VP could then pardon him as the new president. He thus escapes punishment for his crimes. I doubt that our founders believed that a president committing crimes should just be allowed to keep committing them and to escape punishment through a pardon. Impeachment is a political action; indictment is a criminal action and Trump clearly has committed crimes for which he needs to be indicted. The excuse that a president is too busy to defend himself if indicted is just hogwash—that’s why we have a VP to serve as president when the president is temporarily sidelined.

AndJusticeForSome

(537 posts)
56. Exactly. Having a policy that puts the president above the law is what's unconstitutional
Wed May 29, 2019, 04:59 PM
May 2019

And the only literal reading of what he said is that interpretation.

 

ehrnst

(32,640 posts)
60. Well, there is the 25th amendment which is quicker than impeachment
Wed May 29, 2019, 05:25 PM
May 2019

if he was to do something like what you list.

So there's that.

TwilightZone

(25,342 posts)
71. People are seeing what they want to see.
Wed May 29, 2019, 07:03 PM
May 2019

I think those who refuse to read for context either went into it with preconceived notions or they're being intentionally ignorant.

In context, it's quite clear what he was talking about.

Hortensis

(58,785 posts)
73. Thanks for trying to smarten up DU overall.
Wed May 29, 2019, 07:17 PM
May 2019

Wouldn't want visitors thinking they'd stumbled into the Cave by accident.

The Velveteen Ocelot

(115,280 posts)
76. It was pretty obvious to me that he was reflecting what the OLC opinions said,
Wed May 29, 2019, 10:04 PM
May 2019

which can be found here: https://www.justice.gov/sites/default/files/olc/opinions/2000/10/31/op-olc-v024-p0222_0.pdf

But what would have happened if Mueller had decided to ignore the OLC opinions?

The OLC opined that a sitting president can't be indicted because to do so would violate the constitutional principle of separation of powers, but what if Mueller had decided, "Fuck that guy and fuck the OLC memos, he obstructed justice and I'm gonna indict his ass." Of course, the opinion stated in the OLC memos is not settled law, although the argument and the research and reasoning behind it is rational and credible, not "stupid" or "bullshit," as some have described it. Others, notably Lawrence Tribe, have made very good arguments to the contrary, as here: https://www.lawfareblog.com/yes-constitution-allows-indictment-president

So what if Mueller had decided scholars like Tribe were right and the OLC was wrong? Let's say he takes the evidence to a grand jury, which returns a bill of indictment actually charging the president and not just calling him an unindicted co-conspirator, as a Watergate grand jury did with Nixon. What would have happened to that indictment?

Most likely, Bill Barr is what would have happened, since it's probable that decision would have been made toward the end of the investigation and after Barr was appointed (and if not Barr, unqualified toady Whitaker or easily-intimidated Rosenstein).

Barr or his predecessors, on Trump's instructions or on their own, would have ensured that the indictment would have never seen the light of day and Mueller would have been fired. That's what would have happened. It would be another Saturday Night Massacre but without any heroes like Richardson and Ruckelshaus. Even though the Special Counsel regulations require any denials of proposed prosecution to be reported, if Mueller was fired there would be no report.

Or, taking it another direction, let's say Barr didn't quash the indictment or fire Mueller but instead challenged the indictment on the basis of the OLC opinions. Now we have two parts of the same agency, the DoJ, fighting with each other in court - the Special Counsel vs. his boss, the Attorney General. How does that play out? And if it ever did get to the Supreme Court, how is a majority of this Court going to rule? Kroner to krugerrands, they'd go with the OLC opinions.

So then we'd be back where we started and Trump will have run out the clock. Arguments about the validity and strength of the OLC guidance and whether Mueller should have followed it are academic and fruitless because the ultimate result would have been the same: no indictment.


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