As a general matter, declinations fall into three broad categories: factual declinations, legal declinations, and prudential declinations. These overlap to some degree, and the distinctions here are thus somewhat artificial—though I hope still useful. A declination for factual reasons could be based on a finding of actual innocence—as discussed above—or a finding that the evidence, though compelling, is not adequate for prosecution. How much of a vindication or how politically damaging such a declination is depends entirely on the factual findings, about which we know nothing.
A declination for legal reasons is also preponderantly likely here, irrespective of the facts, at least as regards Trump himself. Indeed, we always knew that the investigation would not result in Trump’s indictment while he remained in office; that was never in doubt. For all the feverish discussion of the question of whether a president can or cannot be indicted, the Justice Department’s Office of Legal Counsel has a longstanding opinion on the matter that binds Mueller. There was never any chance that Mueller would defy this opinion. And there was thus never any chance either that Mueller would indict Trump while he remained in office. The result is that at least as regards the president himself, we cannot presume—as we normally would presume—that the investigation’s end means that the evidence is insufficient to bring charges. It might well mean that, and nobody should be surprised if it does. But it needn’t mean that.
There are other possibilities too. What if Mueller developed compelling evidence of presidential misconduct but that evidence does not map cleanly onto known criminal statutes? This could be the case on the collusion prong of the investigation, because knowingly and gleefully benefiting from a foreign power’s theft and disclosure of a political opponent’s emails isn’t, without more, a crime. And it could also be the case with respect to the obstruction component of the investigation, because the president has plausible arguments with respect to many of his obstructive acts that they are within his Article II powers.
There are also prudential factors that can lead to declinations—for example, the unwillingness to declassify material to bring a case. I have no reason to believe such factors are at work here. My point is simply that to say that Mueller is not recommending further charges does not tell you all that much unless you know why he’s not recommending further charges. Yes, it is possible that Mueller has concluded that the president is innocent, that there was “NO COLLUSION” and that there’s nothing to see here and we should all move on. But it’s also possible that he has concluded that the president is guilty as sin but he can’t prove this without outing a particular intelligence channel that NSA senior leadership would lie down in traffic to prevent him from discussing in court—and that even if he could blow that capability, the president can’t be indicted anyway and would have a good argument that his conduct was lawful. These scenarios are both consistent with Friday’s news.
Direct link here:
https://www.lawfareblog.com/how-understand-end-mueller-investigation-hint-you-cant-yet
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