The Robert Mueller report is finally out, with very few redactions. As I have long predicted, it includes serious criticisms of President Trump and his associates, but it does not conclude that the president committed any crimes.
The report is divided into two volumes. The first deals with the investigation of the relationship between the Trump campaign and Russian operatives who were trying to influence the 2016 presidential election in Trump’s favor. Although the volume contains evidence of contacts between campaign operatives and Russian operatives, it correctly concludes that no one in the Trump campaign, indeed no Americans, conspired with the Russians in their illegal efforts.
On the issue of obstruction of justice, the report is even more critical. Although the bottom line is that “this report does not conclude that the president committed a crime,” it does conclude that a president can be charged with obstruction of justice for engaging in conduct that is otherwise authorized by the Constitution, such as firing FBI director James Comey.
This is the core legal and constitutional issue that divides Mueller from Attorney General William Barr: Mueller believes that the application of the obstruction of justice statute to a constitutionally authorized presidential act would be permissible if the act was motivated by a corrupt purpose. Barr apparently believes that the Constitution does not permit a prosecutor to probe the motives of a president if the act itself is authorized by the Constitution.
I believe that Barr gets the better of the argument, both from a constitutional and policy perspective. There are only two precedents that are directly relevant to this deeply divisive constitutional issue. The first involves President Richard Nixon, who everyone seems to agree could have been charged with obstruction of justice. The reason is that Nixon was guilty of destroying evidence, suborning perjury, and paying hush money to witnesses who might incriminate him. None of these actions is authorized under Article II of the Constitution, and therefore there is no conflict between the obstruction of justice statute and the president’s constitutional authority.
The other relevant case involved President George H.W. Bush. He pardoned Casper Weinberger and five other people involved in the Iran-Contra scandal on the eve of Weinberger’s trial. The special prosecutor, Lawrence Walsh, concluded that Bush had an improper motive in issuing those pardons. In fact, he called the pardons part of a “coverup” and “deception and obstruction.” Yet he did not recommend charging Bush with obstruction of justice, presumably because he believed — as I do — that the act of pardoning, as distinguished from what Nixon did, cannot constitute a criminal act, even if it was corruptly motivated.
The shocking thing about the legal analysis of obstruction contained in the Mueller report is that it fails to distinguish between the Nixon and Bush cases. Indeed, it never even mentioned Bush’s pardon of Weinberger and Walsh’s characterization of that pardon. Instead, it cites a series of inapt lower court decisions involving ordinary citizens whose actions are not protected by Article II of the Constitution.
Mueller is surely aware of the Bush case because he served in the Justice Department during the Bush administration. Why then would he omit any reference to the single most important precedent that undercuts his conclusion that a president can be guilty of obstruction of justice even if he engages only in actions that are authorized under the Constitution? It is clear that Mueller strongly believes that a president should be guilty of obstruction of justice if his constitutionally authorized actions were corruptly motivated. That is his opinion. That is not Barr’s opinion. That is not my opinion. And there is no Supreme Court precedent or Justice Department ruling that supports his opinion, as Mueller readily admitted in his report. He owed the American public an explanation of why the firing of Comey stands on any different constitutional basis than the pardoning of Weinberger.
A more fundamental question raised by the publication of the Mueller report is how to distinguish this report from the universally condemned statement by Comey that Hillary Clinton was extremely careless in the handling of her e-mails. In both the Trump and Clinton situations, the conclusion was reached that no crimes would be charged. Comey was condemned for going beyond that statement and expressing his views about Clinton’s noncriminal conduct. How does one then justify the release of hundreds of pages of descriptions of noncriminal conduct by people who are not charged with crimes? There are, of course, differences between the Trump and Clinton matters. Trump is the president, while Clinton was merely a candidate. Comey was the director of the FBI, whereas Mueller is special counsel. Do these differences justify violating the traditional rules of the Justice Department prohibiting comment about uncharged subjects of a criminal investigation? That, too, is a question that should be asked both of Mueller and Barr.
We can anticipate that both sides of the political divide will spin this report to their advantage. That is one good reason for generally adhering to the Justice Department tradition of remaining silent about uncharged defendants.
Alan M. Dershowitz is professor emeritus at Harvard Law School and author of “The Case Against the Democrats Impeaching Trump.’’