Robert Mueller said explicitly on Wednesday that the special counsel’s office did not even consider charging Donald Trump with a crime because of a Justice Department opinion that guides against indicting a sitting president.
The department opinion, written by the Office of Legal Counsel and dating back to the Nixon administration, has loomed large over the former special counsel’s testimony before the House Judiciary and Intelligence committee hearings.
Repeatedly Democratic lawmakers have sought to have Mueller agree that President Donald Trump obstructed his investigation by citing back to Mueller portions of the special counsel report discussing when Trump sought to fire Mueller or have then-Attorney General Jeff Sessions unrecuse himself from the investigation.
But it was in the very first round of questions from Judiciary Committee Chairman Jerry Nadler that Mueller explained the OLC opinion was a factor at the very start that prevented his team from even considering charging the President.
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“We, at the outset determined that … when it came to the President’s culpability, we needed to, we needed to go forward only after taking into account the OLC opinion that indicated that a president, sitting president, cannot be indicted,” Mueller testified.
When asked if the President could be prosecuted for obstruction of justice crimes after he leaves office, Mueller replied, “True.”
Rep. Ted Lieu was one of at least two Democrats who sought to get Mueller to agree that Trump had obstructed justice when he ordered former White House counsel Don McGahn to fire the special counsel.
“I’d like to ask you the reason, again, that you did not indict Donald Trump is because of OLC opinion stating that you cannot indict a sitting president, correct?” Lieu asked.
“That is correct,” Mueller responded.
He then amended his response, “The only thing I want to add is I’m going through the elements with you. That does not mean I subscribe to what you’re trying to prove through those elements.”
Later, at the start of the hearing before the House Intelligence Committee, Mueller sought to further clarify what had been viewed by many as a rare break from the written report’s findings.
“(W)hat I want to clarify is we did not make any determination with regard of culpability in any way. We did not start that process down the road.”
Mueller also said that a president could be indicted after he leaves office, but when asked what would happen if the president serves beyond the statute of limitations.
“I don’t know the answer to that,” Mueller said.
The special counsel report cited the OLC opinion as playing a role in their decision making process but he also noted “fairness” as another factor because in the President would be unable to defend himself while in office. Mueller did not make a call either way as to whether Trump should be charged with a crime.
The call was made by Attorney General William Barr, who in consultation with then-Deputy Attorney General Rod Rosenstein, said Trump would not face charges. The issue was muddied when in May Barr publicly diminished the role that the OLC opinion was a factor in the special counsel deliberations.
“Special counsel Mueller stated three times to us… that he emphatically was not saying that but for the OLC opinion he would have found obstruction,” Barr told lawmakers.