Alan Zendell, May 30, 2019
Though it was certainly unintentional, Robert Mueller did Donald Trump a huge favor when he defined the scope of his investigation as he did. As he made clear both in his report and his televised remarks, yesterday, Mueller treated an opinion by the Justice Department’s General Counsel as undisputed constitutional law, when in fact it is a matter of great dispute among law professors and judges.
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Various legal scholars are now weighing in on whether Mueller’s ultra-conservative approach was the right one. In today’s Washington Post, Rosalind Helderman quotes one former federal appellate judge who thinks Mueller could have gone further even if he believed the president couldn’t be indicted: “the fact that a president cannot be prosecuted does not foreclose a finding by a special counsel of whether a president committed a crime.”
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As a result, Mueller was constrained by a Justice Department policy opinion that a sitting president may not be indicted or prosecuted regardless of the evidence, because doing so might prevent the president from carrying out his constitutional responsibilities. It’s impossible to know how the Supreme Court would rule if the opinion came before them, but that sounds like an extremely flimsy basis for determining whether the president is a criminal.
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On second thought, a thank you would be wholly inadequate. Trump ought to finally give Mueller the refund he asked for after changing his mind about joining Trump’s golf club.