Long-standing policy (45 years)....

Why Mueller said he couldn’t indict Trump, explained

The Justice Department has a long-standing policy that prevents federal prosecutors from charging the president with a crime.

By Li Zhou

During his congressional testimony on Wednesday, former special counsel Robert Mueller noted that part of his decision to refrain from considering an indictment of President Donald Trump was attributed to a long-standing Justice Department policy: According to the agency’s Office of Legal Counsel, a sitting president cannot be charged with a federal crime.

“We, at the outset, determined that, when it came to the president’s culpability, we needed to go forward only after taking into account the OLC opinion that indicated that a sitting president cannot be indicted,” he said.

The OLC policy itself is relatively straightforward: Most recently reevaluated in 2000, it argues that the executive branch would be incapacitated by a criminal prosecution:

The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.

In his report, Mueller did not ultimately charge the president. He made clear during his afternoon testimony that because of the OLC opinion, his team did not even reach a conclusion about “whether the president committed a crime.” This point was a major clarification of an earlier exchange in which Mueller seemed to signal that he would have potentially charged the president, were it not for the OLC opinion.

Despite the report’s lack of indictment, however, Mueller stopped short of exonerating the president on counts of obstruction of justice. As one notable line in the report states, “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.” Mueller declined to state.

Legal experts have previously told Vox’s Sean Illing that there is no larger Supreme Court case regarding, specifically, whether a president can be charged for actions that have been taken while in office. The DOJ’s policy on the matter is one that it has determined on its own, and it’s broadly seen as binding for federal officials. As Mueller’s report and testimony indicated, he has continued to adhere to it, laying out a roadmap for Congress to take action in the wake of the report.

Legal experts say the president can be prosecuted by the states, despite the OLC policy

According to multiple legal experts, there have been no Supreme Court cases that have settled the question of whether a sitting president can be indicted. The DOJ’s OLC, however crafted its own policy on this question. (The OLC is a body within the DOJ that provides legal advice to many different parts of the executive branch, including the Attorney General’s office.)

It ultimately concluded that prosecution of the president by the DOJ has the potential to create a separation of powers conflict with Congress. Additionally, it could distract from the president’s responsibilities in office.

“There is nothing in the Constitution that prevents a sitting president from being indicted,” says Loyola Law School professor Jessica Levinson. “There is nothing in Supreme Court opinions that prevents a sitting president from being indicted. All we have is Department of Justice policy based largely on concerns over separation of powers.”

Because the OLC policy applies specifically to the DOJ, there is the possibility that states could pursue their own charges that the federal government refrains from doing.

“If federal prosecutors refuse to hold the president to the same legal standard as any other citizen, state attorneys general could certainly charge a president with a state crime with sufficient evidence,” Stetson University law professor Ciara Torres-Spelliscy previously told Illing.

Some experts caution, however, that any type of charge brought against the president would likely result in a lengthy set of court challenges that could go all the way up to the Supreme Court.

Instead of prosecuting the president, Mueller laid out a path for Congress to take action

Mueller’s report may have abstained from charging the president, but it offered a blueprint for Congress to follow if lawmakers wanted to pursue further investigation.

As Vox’s Ella Nilsen writes, Mueller emphasizes that Congress has the ability to determine if the president obstructed justice. One key line of the report lays this out, noting, “The conclusion that Congress may apply obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.”

Congressional action is the most direct means of addressing any potential criminal activity by President Donald Trump, some legal experts say.

“Even if, to use Trump’s own example, he shot someone on Fifth Avenue, the only remedy would be for the president to be impeached by the House, convicted and removed from office by the Senate, and only then prosecuted in criminal court,” Georgetown University Law Professor Paul Butler has said. “If there is no impeachment, that’s a political crisis, not a constitutional one.”

As of yet, House Democrats have held off on pursuing an impeachment inquiry. It’s unclear whether Mueller’s testimony on Wednesday will change that.