The Volokh Conspiracy

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Volokh Conspiracy

On Volume Two of the Mueller Report

"Oh my God. This is terrible."


Over at the Niskanen Center, I have posted some thoughts on volume two of the report by special counsel Robert Mueller. The second volume addresses President Trump's response to the investigation of Russian interference with the 2016 presidential election and whether any of those actions constituted criminal obstruction of justice. As I told Vox, "If this is what complete and total exoneration looks like, I'd hate to see a damning report." Quite simply, the president behaved very badly, and his administration seems to have been saved by the willingness of his subordinates to ignore his rants and directives. This look inside the Trump White House is disturbing and should not let anyone rest easy, confident that the office of the presidency is in good hands. Unfortunately, we already knew that.

Once you get past the description of the dysfunctional workplace that is the Trump White House, you find a very interesting set of legal arguments. Mueller's obstruction investigation faced a variety of serious legal challenges, including whether presidential actions to impede the investigative work of an executive branch officer can constitutionally or statutorily amount to obstruction of justice and what the appropriate role is of a special counsel who can not bring a criminal indictment against the target of his investigation. Mueller's legal analysis is best read alongside the analysis offered by William Barr when auditioning for the thankless role of Trump attorney general. I'm more sympathetic to Barr's formalism than Mueller's functionalism, but these are interesting and difficult issues.

To the disappointment of some, Mueller made the right call to lay out his factual findings and the legal issues as he understood them and let others—the attorney general, Congress, and the voters—decide how best to respond to the results of the special counsel investigation. I think Barr made the right call as well in determining that this presidential misconduct should not give rise to criminal charges. Unfortunately, the president has through his own words and deeds strengthened the hand of his opponents who would like to see him impeached and removed from office. He ignored the first law of holes, and when he found himself in one he just kept digging.

You can read my extended discussion of volume two here.