[B]y creating a rigorous factual record concerning both Russian intervention in 2016 and presidential obstruction of the effort to investigate that intervention, the report poses other questions acutely. Most importantly, it poses the question of whether this conduct is acceptable—not whether it’s lawful or prosecutable or whether the evidence is admissible, but whether as a nation we choose to accept it, and if not, what means we exercise to reject it. Mueller is not a political figure, but the record he has created puts these fundamentally political questions squarely before us.
[T]he ultimate issue shouldn’t be — and isn’t — whether the president committed a criminal act. As I wrote not long ago, Americans should expect far more than merely that their president not be provably a criminal. In fact, the Constitution demands it.
The Constitution commands the president to “take Care that the Laws be faithfully executed.” It requires him to affirm that he will “faithfully execute the Office of President” and to promise to “preserve, protect and defend the Constitution.” And as a result, by taking the presidential oath of office, a president assumes the duty not simply to obey the laws, civil and criminal, that all citizens must obey, but also to be subjected to higher duties — what some excellent recent legal scholarship has termed the “fiduciary obligations of the president.”
Fiduciaries are people who hold legal obligations of trust, like a trustee of a trust. A trustee must act in the beneficiary’s best interests and not his own. If the trustee fails to do that, the trustee can be removed, even if what the trustee has done is not a crime.
So too with a president. The Constitution provides for impeachment and removal from office for “Treason, Bribery, or other high Crimes and Misdemeanors.” But the history and context of the phrase “high Crimes and Misdemeanors” makes clear that not every statutory crime is impeachable, and not every impeachable offense need be criminal. As Charles L. Black Jr. put it in a seminal pamphlet on impeachment in 1974, “assaults on the integrity of the processes of government” count as impeachable, even if they are not criminal.
The Mueller report paints a picture of a president who took extraordinary steps to undermine a lawful investigation into him and his associates. Trump fired the FBI director, tried to fire Mueller, asked the FBI director to stop investigating former national security adviser Michael Flynn, tried to persuade Attorney General Jeff Sessions to reverse his recusal and tank the investigation, and tried to influence the testimony of witnesses. Mueller properly rejected all of the defenses to obstruction of justice put forward by Trump’s lawyers. Candidly, as a criminal defense attorney, I cannot see how I would convince a jury that there is reasonable doubt based on these facts.
But Trump will almost certainly never face a jury, due in part to the highly questionable efforts of his lawyers, who appear to need lawyers of their own. Their greatest achievement was convincing Mueller not to interview Trump, even though Mueller concluded he “had the authority and legal justification” to force Trump to testify.
Mueller said he chose not to interview Trump because it would cause “substantial delay” and he already had “sufficient evidence,” which strongly suggests that Mueller felt that he could prove Trump’s intent without an interview. In a typical case, a prosecutor would have interviewed Trump regardless, to lock him into a story. In this matter as well, Mueller showed considerable restraint.
Ironically, despite Trump’s refusal to sit for an interview—as other presidents like Ronald Reagan and Bill Clinton did—Barr touted Trump’s “full cooperation” with the investigation. On this matter, as with so many others, Barr deceived the public.