Hillary: Anyone else would have been indicted for obstruction if they did what Trump did


Ironic, since others have made the same point about her mishandling of classified information — even in court, as part of their legal defense to the same charge. The most famous example, Kristian Saucier, received a pardon from Trump because of it.

I’m surprised to find Hillary adding to the pressure here on Pelosi and the House leadership to impeach. Right, granted, she hates Trump, but Pelosi has sound strategic reasons for not wanting to initiate a process that can only lead to failure in the Republican Senate and turnout fuel for Republican voters. The way you kick Trump out of office is to keep Russiagate at a simmer, not a boil, hot enough so that it damages Trump next fall but not so hot that Trump’s base is agitated by it. That’s what Pelosi, Nadler, Schiff et al. are trying to do by launching a thousand investigations but downplaying the prospects of impeachment. Now here’s Hillary nudging them to go nuclear. Her electoral instincts are foolproof.

In all honesty, I read the key part of Mueller’s report on obstruction the same way she did. I wouldn’t say it “very directly” referred the matter to Congress, as she does, but indirectly? Sure.

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Before the report was issued it seemed like Mueller would come to one of two possible conclusions, that probable cause does or doesn’t exist based on the evidence to believe that Trump obstructed justice. Actually indicting Trump seemed out of the question due to DOJ policy that sitting president can’t be indicted, but surely Mueller could state his considered judgment that an indictment should issue under circumstances like these. That would be Congress’s cue to take the baton and begin impeachment proceedings. And Mueller didn’t do that. Total exoneration!

But no, what he’s telling us in the above passage is that, for reasons of basic fairness, the DOJ policy preventing indictment of the president also precludes Mueller from stating his opinion if he believed obstruction occurred. If he were to accuse Trump of that, it would leave the president with no legal avenue to answer the charge: Since there’s no indictment, there’s no trial and thus no opportunity for Trump to mount a defense. A sealed indictment wouldn’t work either since it would doubtless leak, casting a shadow over Trump’s presidency with, again, no chance to clear his name until he was out of office, years in the future. Imagine if Mueller indicted Trump under seal, the indictment was exposed, the resulting political damage led to Trump losing the election, and then Trump was acquitted in court. Mueller’s accusation would have changed the course of American history — in a case which, it turned out, couldn’t even support a conviction. Grossly unfair.

The only thing for him to do was to lay out the evidence he’d gathered and scrupulously withhold his opinion on Trump’s guilt … except to say that his silence shouldn’t be interpreted as exoneration. His position, essentially, is that it’d be unfair to the accused to say that probable cause exists but unfair to the facts to say it doesn’t not exist, wink wink. That does sound like an impeachment referral to Congress rather than a punt to Bill Barr to decide the question. After all, if Mueller thought it was appropriate for the attorney general to declare that Trump didn’t obstruct justice, he could have and presumably would have said it in the report himself. He didn’t, and made a point of saying that he wasn’t doing that.

But Barr did choose to decide the question and that’s had an impact by souring the public on impeachment (ironically to the relief of House Democrats). It’d be fascinating if Mueller were called to testify before the House and confirmed that his convoluted finding on obstruction was aimed at having Congress decide the matter rather than Barr, but it’s hard to imagine that. A by-the-book character like Mueller will probably take the view that Barr is in charge and he’s merely a subordinate. If Barr thought the right thing to do was to issue a verdict on obstruction by the president instead of leaving it to Congress then that’s within his discretion as AG, case closed.

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