(Bloomberg) -- Robert Mueller filled his 448-page report with at least 10 instances where President Donald Trump tried to impede the special counsel’s investigation -- yet he stopped short of concluding whether the president obstructed justice.
So Attorney General William Barr sought to make the decision for him: no obstruction, no crime.
But that isn’t what Mueller intended at all.
Throughout his report, Mueller signals clearly that he thinks Congress should settle that question, not the attorney general. By spending months investigating incidents of obstruction despite concluding he couldn’t indict a sitting president, Mueller gave lawmakers a starting point.
And he made sure not to get in their way. At one point, Mueller said he wanted to be certain he didn’t take actions that would “preempt constitutional processes for addressing presidential misconduct” -- a hint that came complete with a footnote referring to impeachment.
This, too, may leave Trump’s critics wanting, because Democrats seem reluctant to pursue a politically risky impeachment proceeding, especially so close to the 2020 election.
House Judiciary Committee Chairman Jerrold Nadler said Friday he plans to issue a subpoena for the complete Mueller report within hours. “We are headed to find out a lot more, to hold proper hearings, to educate ourselves and the American people and we’ll see where the evidence leads,” Nadler said on “CBS This Morning.”
Some of the confusion over Mueller’s intent was fed by Barr’s assertion in a letter to Congress last month that Mueller closed his probe “without reaching any legal conclusions” on obstruction.
That wasn’t accurate.
Mueller always planned to follow a Justice Department policy that says a sitting president can’t be indicted, according to people familiar with his investigation. Had he been able to reach a conclusion that Trump didn’t obstruct justice, he would have said so.
He wasn’t able to say so.
“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,” according to the report. “Based on the facts and the applicable legal standards, however, we are unable to reach that judgment.”
Instead, the veteran prosecutor meticulously documented instances of obstruction of justice with an eye toward memorializing evidence that Congress could use to conduct impeachment proceedings against Trump, should lawmakers decide to do so.
Mueller investigated almost a dozen instances of potential obstruction of justice, including Trump firing FBI Director James Comey, attempts to curtail the special counsel’s investigation and actions to prevent public disclosure of evidence.
“The president’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the president declined to carry out orders or accede to his requests,” according to the report.
Mueller also investigated whether Trump conspired with Russia to interfere in the 2016 election. The report said the investigation didn’t establish enough evidence for a conspiracy charge.
Having decided he couldn’t charge Trump with a crime, Mueller opted not to say that Trump obstructed justice because the president would have no way to defend himself.
“We determined not to apply an approach that could potentially result in a judgment that the president committed crimes," according to the second page of the section dealing with obstruction. "Fairness concerns counseled against potentially reaching that judgment when no charges can be brought."
Barr at Odds
Some of the reasons cited in the report for why Mueller didn’t draw a conclusion on obstruction are at odds with Barr’s statements about his findings, testing the credibility of the nation’s top law enforcement officer.
On Thursday, Barr told reporters it was his responsibility to determine whether Trump obstructed justice because Mueller chose not to do so. Barr said he and Deputy Attorney General Rod Rosenstein concluded there wasn’t sufficient evidence to charge Trump with a crime, undercutting the argument that Congress should take up the matter and decide it.
The report makes it clear that Mueller and his team of prosecutors not only believe Congress has the power to decide whether Trump obstructed justice, but that one of the reasons they stopped short of charging Trump is that doing so might interfere with congressional action.
"We recognized that a federal criminal accusation against a sitting president would place burdens on the president’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct," the report says.
Theories in Dispute
For the first time, Barr also acknowledged Thursday that he and Rosenstein disagreed with Mueller on some theories of possible obstruction.
The report illustrates the meaty and difficult issues that Mueller and his team of prosecutors wrestled with when it came to the issue.
Mueller noted that an underlying crime isn’t necessary to prove obstruction of justice, saying people might have reasons to obstruct justice that don’t involve underlying crimes.
“The injury to the integrity of the justice system is the same regardless of whether a person committed an underlying wrong,” the report says.
Mueller also said he faced several significant obstacles in investigating the underlying crime of conspiracy, such as lack of cooperation from some witnesses, false or incomplete statements, deleted communications and encrypted information.
"“Accordingly, while this report embodies factual and legal determinations that the Office believes to be accurate and complete to the greatest extent possible, given these identified gaps, the Office cannot rule out the possibility that the unavailable information would shed additional light on (or cast in a new light) the events described in the report," the report concludes.
(Updates with Nadler subpoena to seek full report in seventh paragraph.)
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