Mueller footnote: Donald Trump could be prosecuted for obstruction of justice once he leaves office

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James Ledbetter / Flickr FBI MUELLER...
James Ledbetter / Flickr

An article in Slate demonstrates that plowing through the legal analysis sections of the redacted Mueller report is worthwhile. Apparently, impeachment will not be enough punishment for Individual-1.

While those sections are dense, they offer a very clear and thorough explanation of Mueller’s decision not to issue obstruction of justice charges against the president, which he indicates he based on an Office of Legal Counsel memo outlining constitutional concerns about charging a sitting president with crimes. However, that legal analysis also presents a much subtler sense of the special counsel’s view of whether the president actually committed potential felonies, even as Mueller said he was declining to issue an opinion. In particular, one underexamined footnote points to a clear conclusion: Robert Mueller thinks that Donald Trump could still be prosecuted for obstruction of justice once he leaves office.

Here’s the passage in question: In the report, it’s Footnote 1,091, which appears on Page 178 (emphasis mine).

  • A possible remedy through impeachment for abuses of power would not substitute for potential criminal liability after a President leaves office. Impeachment would remove a President from office, but would not address the underlying culpability of the conduct or serve the usual purposes of the criminal law. Indeed, the Impeachment Judgment Clause recognizes that criminal law plays an independent role in addressing an official’s conduct, distinct from the political remedy of impeachment. See U.S. CONST. ART. l, § 3, cl. 7. Impeachment is also a drastic and rarely invoked remedy, and Congress is not restricted to relying only on impeachment, rather than making criminal law applicable to a former President, as OLC has recognized. A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. at 255 (“Recognizing an immunity from prosecution for a sitting President would not preclude such prosecution once the President’s term is over or he is otherwise removed from office by resignation or impeachment.”).

slate.com/…

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