Robert Mueller has been the elephant in the room for quite a while. On Lawfare, Bob Bauer thinks his example, as a counter to Trump’s rubbish, has been sterling and should be admired. When it comes to Trump’s possible involvement in crime, he has two pieces of advice for him:
First, should Mueller conclude that the president has committed a crime, it is fully consistent with his role and responsibilities to name Trump as an unindicted co-conspirator in the Russia matter. The Office of Legal Counsel (OLC) opinions mistakenly contending that the president is immune from prosecution while in office do not preclude this option. The 2000 opinion, of course, was written well after Watergate; the authors were aware of the precedent of Nixon’s having been listed as an unindicted co-conspirator and did not challenge it. Since then, the Department of Justice has published guidance cautioning against this step but with ample allowance for it to be taken in a case like this.
Second, Mueller should also consider himself to have the authority to indict the president under seal, if the evidence so warrants, with prosecution deferred until Trump leaves office. OLC’s 2000 opinion takes objection to this course in a footnote, in which it asserts without elaboration that “[p]ermitting a prosecutor and grand jury to issue even a sealed indictment would allow them to take an unacceptable gamble with constitutional values.” This is not an argument: What does it mean to dismiss this prosecutorial option as a “gamble with constitutional values”? In what way is it “unacceptable,” and to whom? This is gibberish, and it is not entitled to any weight.
Should the evidence take Mueller in these directions, the new Justice Department leadership could stand in his way: It could attempt to stop him or fire him. But this could not be accomplished in secret. The story would rapidly emerge, most likely with other resignations in protest from department officials—as with the Saturday Night Massacre. Mueller would have the chance to tell his story to the House, and the House, in turn, can and would obtain access to his evidence. The lines will have been clearly drawn, with Mueller situated on the right side—where his prosecutorial authority is found and has been responsibly exercised.
The OLC opinions do appear to be gibberish if that is, indeed, what they say. No man is above the law, and we have a VP for situations in which the President has become impotent. That’s the purpose of the VP. The OLC opinion sounds like it’s desperately trying to defend the occupant of the Oval Office, not the system of government we use.
Perhaps I should try reading the opinions myself. They’re photostats of a paper written in 1973, apparently.
