Trump Will Never Face Prosecution for What’s in Mueller’s Report
It’s conceivable that Trump could face charges post-presidency by the U.S. Attorney for the Southern District of New York for campaign-finance felonies he may have committed while paying off Stormy Daniels through Michael Cohen. And who knows what financial shenanigans from before his presidency might be investigated and prosecuted by New York prosecutors.
But when it comes to obstruction of justice connected to the Mueller investigation, Attorney General William Barr’s public statement that there wasn’t enough evidence in the report to prosecute Trump is determinative and permanent.
It would be unusual under any circumstances for a subsequent attorney general to reverse a public decision not to prosecute made by a prior occupant of the office. But when the succeeding attorney general comes from the opposite political party, such a determination would seem like a complete repudiation of the ideal that criminal justice decisions are nonpartisan.
That would deter just about any attorney general — and probably should. If you want an example, take the decision by President Barack Obama’s Department of Justice not to prosecute anyone for unlawfully waterboarding al-Qaeda suspects after the Sept. 11 attacks.
There was ample evidence for criminality, including the fact that the waterboarding far exceeded even the permissive guidelines issued by the Office of Legal Counsel. But the Obama administration determined that a torture prosecution of his predecessor’s administration wouldn’t be desirable.
Barr’s determination about the lack of evidence came as part of his now infamous March 24 letter to congressional leaders summarizing the results of the Mueller investigation.
In the letter, Barr reasoned that Mueller’s decision “to describe the facts of his obstruction investigation without reaching any legal conclusions” functioned an invitation to him. Mueller’s approach “leaves it to the attorney general to determine whether the conduct described in the report constitutes a crime,” Barr wrote.
That proposition is certainly disputable. Mueller could have made that determination himself. And if Mueller actually had good reason not to, as he claimed in his report, the same logic should have applied to Barr. If Mueller was right, that it would be unfair to the president to state the conclusion that there was sufficient evidence to show he had committed a crime, then it would have been equally unfair for Barr to do so. And Mueller said in the report that there wasn’t insufficient evidence for him to exonerate Trump, which means Barr didn’t have the evidence to exonerate Trump, either.
Despite this substantive objection to what Barr did, the fact remains that Barr indeed went on to determine that the evidence gathered by Mueller was “not sufficient to determine that the president committed an obstruction-of-justice offense.”
And Barr was clever enough not to make this determination on his own. He got Deputy Attorney General Rod Rosenstein to agree. Rosenstein is the career prosecutor who made his contribution to history by protecting Mueller’s investigation from Trump’s pressure. Whatever you think of Barr, Rosenstein’s judgment cannot convincingly be impugned as partisan.
As a matter of formal constitutional law, Barr’s determination isn’t legally binding on a successor. The power to bring a prosecution belongs to the executive branch, and a later president and attorney general would have the formal constitutional power to make a new prosecution determination based on the same evidence.
In reality, however, the Department of Justice has reason not to bring charges on the same evidence in the future once it has formally stated that there isn’t enough evidence to prosecute somebody. The government should be consistent across administrations with respect to bringing charges. Whether you are prosecuted shouldn’t depend on who is the attorney general.
That principle should apply to Trump, even though technically Barr wasn’t making a prosecution determination, because Department of Justice rules say a sitting president cannot be indicted.
This logic is extra-strong when it comes to a set of issues so thoroughly infused by partisan politics. A Democratic administration succeeding Trump’s should be trying to repair the damage that he has already done to the norm that criminal justice investigation and prosecution shouldn’t be infused by partisanship.
If a Democratic administration were to charge Trump based on the same evidence that Rosenstein and Barr already determined insufficient, that would look like a partisan determination.
It’s a crucial principle of democracy that one administration not criminalize the administration it succeeded. That’s one reason it was so destructive for Trump to lead the chants of “lock her up” against his 2016 rival, Hillary Clinton. One of the worst things that a Democratic administration could do would be to follow Trump’s threats by criminalizing its predecessor when the relevant government officials have decided that the evidence doesn’t suffice to justify prosecution.
Notably, Barr’s statement said nothing about the campaign-finance crimes for which Cohen is going to prison. And state prosecutions are their own thing.
But one can predict with extremely high confidence that Trump will never be prosecuted for the obstruction of justice evidence that Mueller presented. And whether Barr’s determination was right or not, it’s right that it should control the Department of Justice’s determinations going forward.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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