Two Mueller Team Prosecutors Privately Say Trump Would Have Been Charged With Crimes If He Weren’t In Office

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In his report on the findings of his Russia investigation, posted online by The New York Times, Special Counsel Robert Mueller and his team of prosecutors and investigators identified 11 cases during the investigation when Donald Trump may have committed criminal obstruction of justice. But before releasing the report to the public, Attorney General William Barr announced that Trump would not face prosecution for obstruction.

Barr said in his four-page letter to Congress send on March 24, available online via Lawfare, that his decision to let Trump off the hook was not based on a Justice Department policy which states that a president cannot be indicted while in office. Instead, Barr said that he had independently determined that “the evidence was not sufficient” to prosecute Trump for criminal obstruction.

But at least two of the prosecutors who worked for Mueller strongly disagree, according to a new report by veteran investigative reporter Murray Waas, published online Friday by The New York Review of Books Daily.

According to Waas, Mueller’s prosecutors “concluded last year that they had sufficient evidence to seek criminal charges” against Trump for obstruction of justice in one specific instance in particular. As the Mueller report details in an account beginning on Volume 2, Page 32, in early 2017 Trump pressured James Comey — then the director of he FBI and the official overseeing the Russia probe — to end the FBI’s investigation into retired General Michael Flynn, who was then Trump’s national security adviser, and may have been “compromised” by the Russians.

Michale Flynn leaves the courthouse.
Donald Trump's attempt to obstruct the investigation into his National Security Adviser Michael Flynn (pictured) is considered by prosecutors to be criminal.Featured image credit: Mark WilsonGetty Images

Had the case not been an “investigation of a sitting president of the United States,” the two prosecutors told colleagues according to Waas, “they would have advocated that he face federal criminal charges.”

But according to a Justice Department policy that dates back to 1973, as Reuters recounts, a president may not face criminal charges while in office, saying that such an indictment would “violate the constitutional separation of powers.”

In his report, Mueller states that due to the Justice Department policy, he declined to reach a “traditional prosecutorial judgment” about whether or not Trump should be charged. But on Volume 2, Page 1, Mueller appears to suggest that Trump should be prosecuted after his term concludes, stating, “a President does not have immunity after he leaves office.”

Mueller goes on to say on Volume 2, Page 178 that even if a president, such as Trump, is impeached, he should still face criminal prosecution once he departs the White House. “Impeachment would remove a President from office, but would not address the underlying culpability of the conduct or serve the usual purposes of the criminal law,” Mueller writes.