Mueller: It's Unconstitutional to Charge Sitting President With a Crime--But Not Co-Conspirators (None Were)

By Susan Jones | May 29, 2019 | 11:42am EDT
Special Counsel Robert Mueller is a former FBI director. (Photo by Alex Wong/Getty Images)

( - "The matters we investigated were of paramount importance," Special Counsel Robert Mueller said on Wednesday in his first public statement on the Trump-Russia investigation since he released his report.

Mueller said in addition to Russian interference, he was authorized to investigate actions that could have obstructed the investigation, and while Justice Department policy prohibits the indictment of a sitting president, co-conspirators could be charged now, if the evidence supported such charges -- but apparently it didn't.

"[I]f we had had confidence that the president clearly did not commit a crime, we would have said so," Mueller said, repeating a point that has been seized on by Trump's critics.

We did not, however, make a determination as to whether the president did commit a crime. The introduction to the volume two of our report explains that decision.

It explains that under longstanding Department policy, a president cannot be charged with a federal crime while he is in office. That is unconstitutional. Even if the charge is kept under seal and hidden from public view, that, too, is prohibited. The special counsel's office is part of the department of justice and by regulation it was bound by that department policy.

Charging the president with a crime was therefore not an option we could consider. The department's written opinion explaining the policy makes several important points that further informed our handling of the obstruction investigation. Those points are summarized in our report, and I will describe two of them for you.

First, it explicitly permits the investigation of a sitting president because it is important to preserve evidence while memories are fresh and documents available. Among other things, that evidence could be used if there were co-conspirators who could be charged now.

[Mueller did not charge any "co-conspirators" with obstruction, but he did not mention that on Wednesday.]

And second, the opinion says that the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.

And beyond Department policy we were guided by principles of fairness. It would be unfair to potentially...accuse somebody of a crime when there can be no court resolution of the actual charge.

So that was Justice Department policy. Those were the principles under which we operated, and from them we concluded that we would -- would not reach a determination one way or the other about whether the president committed a crime.

Mueller said that is his "final position" and he won't comment on "any other conclusions or hypotheticals about the president."

Mueller said he appreciates Attorney General William Barr for making the report "largely public," and he said he does not question Barr's "good faith" in doing so.

"Now I hope and expect this to be the only time I will speak to you in this manner. I am making that decision myself. No one has told me whether I can or should testify or speak further about this matter."

Mueller said his work "speaks for itself"; he is retiring from the Justice Department; and he indicated he will not appear before Congress. "I would not provide information beyond that which is already public in any appearance before beyond what I've said here today and what is contained in our written work, I do not believe it is appropriate for me to speak further about the investigation or to comment on the actions of the Justice Department or Congress."

President Trump reacted in a tweet:

"Nothing changes from the Mueller Report. There was insufficient evidence and therefore, in our Country, a person is innocent. The case is closed! Thank you," he wrote.

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