//  5/21/17  //  In-Depth Analysis

Robert Mueller’s appointment as special counsel overseeing the Trump-Russia affair sets us on a road we know not yet where.  But one possible destination is now more likely than at any point before: the E. Barrett Prettyman Federal Courthouse.  Located midway between the White House and the Capitol, this is the building where federal crimes committed in the District of Columbia are prosecuted—the building where the prosecution of United States v. Trump, should it come to that,would unfold.

Ever since the New York Times revealed details of the Valentine’s Day tête-à-tête between the President and his now erstwhile FBI Director, James Comey, legal analysts have speculated over a pressing question: Could President Trump be indicted for obstruction of justice? So long as the Justice Department officials responsible for initiating such a prosecution were Mr. Trump’s chosen appointees, the question of his potential criminal liability was purely academic.  And academics, as is our wont, have offered an array of different answers, ranging from “yes,” there is “compelling evidence” that the President obstructed justice, to “no,” he clearly didn’t, with varying shades of “maybe” in between.  

But one common theme underlies many of these expert analyses: They approach the question from the familiar analytic perspective of a judge reviewing a case, with the dual goals of assessing and predicting how the hard legal questions underlying Trump’s potential criminal liability ultimately will or should be resolved.  That’s a useful lens.  But it can also obscure an important reality about where we now stand: The decision whether to indict a criminal suspect—including the President of the United States—is not made on the back end by a judge reviewing the case.  It’s made on the front end, by the prosecutor overseeing the investigation.  And based on all that we know so far, this much should be clear: Mr. Mueller would be acting well within the law and the established norms of the prosecutorial profession were he to seek an indictment of Donald Trump.  That, of course, is not to say that he should do so.  But it is to say that, in its most practical sense, the question “Could Donald Trump be indicted for obstruction of justice?” can only be answered by saying, “Yes—if Mr. Mueller decides to pursue such a course.”

In making that decision, Mueller must resolve at least three central questions of law and of fact, which I’ll sketch out in a moment.  But if you’re hoping to find definitive answers to those questions here, I should warn you that you’ll be disappointed.  That’s because, as it turns out, these are hard, open questions with respect to which reasonable people can (and do) disagree.  In other words, there aren’t definitive answers. 

But don’t let that discourage you.  Law is hard.  And criminal law is no exception.  Here, though, is the kicker: the fact that Donald Trump’s susceptibility to prosecution may be uncertain hardly means he cannot be prosecuted.  On the contrary, a lawyer’s job is often to assess the relevant facts and legal arguments under conditions of uncertainty such as these—and then to make a judgment about how best to proceed.  In this instance, that lawyer’s name is Robert Mueller.

So, what are the questions that Mr. Mueller must confront?  They’re the same three questions that structure any first-year criminal law syllabus: Did Trump’s conduct violate the relevant statute?  If so, did he engage in that conduct with an illegal intent?  And if yes to both, does he otherwise enjoy some justification, excuse or, in this case, immunity that shields him from prosecution? 

Even familiar questions, though, can evade clear answers.  Consider first the question of Trump’s conduct (his actus reus, for those of you studying for the bar).  The federal obstruction of justice statute does not penalize obstructing “justice” in some abstract or platonic sense of the word (though articles of impeachment might).  Rather, it makes it a crime to “endeavor[] to influence, obstruct, or impede . . . any pending proceeding” that “is being had before any department or agency of the United States.”  (Note that “endeavor” here means that the effort need not be successful; “attempted obstruction” is built right into the core offense.) 

Courts have interpreted this statute broadly, holding that “the term ‘proceeding’ is not, as one might be inclined to believe, limited to something in the nature of a trial,” but rather extends to a law enforcement agency’s “investigation or search for the true facts” that occurs “preliminary to indictment and trial.”  However, as Professor Foley argues in the Times and as the Department of Justice officially acknowledges in its U.S. Attorneys’ Manual, some courts have taken a narrower view, holding that a Justice Department investigation conducted under the auspices of the FBI is not sufficiently connected to a formal “proceeding” to trigger the statute.  Still, even if that narrower view were to prevail, Trump arguably endeavored to influence two other investigations that, as others observe, are more clearly covered by the statute: the pending grand jury investigation of Michael Flynn, and the pending congressional investigations of Russia’s role in the election. The former, in particular, seems potentially significant, given that Trump expressly mentioned Flynn during the Valentine’s Day tête-à-tête, telling Comey “I hope you can see your way clear to letting this go, to letting Flynn go.”  So, there is at least some evidence that Trump made efforts to influence one or more potentially qualifying investigations, which could constitute one or more actus rei, although there are certainly arguments the other way.

Assuming, though, that Trump’s conduct satisfies the statute, he still might not have committed a crime. That’s because (flash cards out) mens rea, or a guilty mind, is also a necessary element of criminal liability.  Thus, while Trump’s underlying purpose might be of disputed relevance in other contexts, as a matter of criminal law his purpose is key.  Indeed, as the person responsible for executing federal laws, there are almost certainly circumstances in which it would be appropriate, if not necessary, for President Trump to “influence” a “pending proceeding” in a “department or agency of the United States.”  But a given course of conduct—up to and including homicide—can be lawful if undertaken with one purpose, yet criminal if undertaken with another.  And if Trump sought to deter Comey’s investigation of Flynn with the purpose of covering up misdeeds or crimes committed by his own presidential campaign—or worse, by himself—then he quite likely acted with the “corrupt” intent that would turn his conduct here into criminal obstruction of justice.

Of course, as my colleague Noah Feldman observes, it could be hard to “prove Trump’s intent.”  That’s certainly true.  But it’s also true of virtually every criminal case where the defendant doesn’t confess to both the deed and to his motive for carrying it out—which, as it turns out, describes most criminal prosecutions (though perhaps not this one).  As a result, intent is almost always demonstrated through circumstantial evidence.  And as courts often observe, “the law makes no distinction between the weight to be given either direct or circumstantial evidence,” meaning that one is just as good as the other.  Indeed, circumstantial evidence of intent can often be quite powerful, as evidenced, if nothing else, by the fact that most criminal defendants who are brought to trial are convicted on just this sort of proof.  And perhaps most notably of all, when it comes to assessing the reported facts about Trump’s potential obstruction of justice, multiple seasoned and expert federal prosecutors see “compelling circumstantial evidence of corrupt intent” here.

All of which raises the third and final question: If there is sufficient evidence of both actus reus and mens rea—that is to say, sufficient evidence that Trump committed a crime—is he nonetheless immune from prosecution by virtue of the fact that he is, well, the President of the United States?  Not surprisingly, this, too, is an open question: there’s never been a prosecution of a sitting President, so no court has ever had to decide the issue.  Nor is it an easy issue to resolve, given that, as the Department of Justice’s Office of Legal Counsel explains, “neither the text nor the history of the Constitution ultimately provide[s] dispositive guidance in determining whether a President is amenable to indictment or criminal prosecution while in office.”  Rather, OLC goes on, “the proper doctrinal analysis requires a balancing between the responsibilities of the President as the sole head of the executive branch” on the one hand “against the important governmental purposes supporting the indictment and criminal prosecution” on the other—purposes that include the need to uphold both the rule of law and the principle that “the President is not above” it.

Of course, as is often true of open-ended, interest-balancing tests like this one, reasonable people can balance these competing values in different ways.  Some might think prosecutions of sitting Presidents should always be barred; others might think prosecutions for serious crimes, at least, should go forward (imagine: shooting someone in the middle of Fifth Avenue).  Others still might think a sitting President could be indicted while in office, but not tried, sentenced, or imprisoned until after he leaves—a middle position that OLC considered, though ultimately rejected. 

The legal academy has split into a number of different views on this question, as an entire symposium debating the topic makes clear.  And in fact, the question has divided the Department of Justice as well, which has directly addressed the issue on at least four different occasions over the past fifty years.  On three of those occasions, the Department concluded that the President is immune from prosecution while in office (although not if he is impeached, resigns, or otherwise finishes his term).  On the fourth occasion, however, the Department argued forcefully against such presidential immunity, describing arguments in its favor as potentially “unsound,” “regrettable,” and reminiscent of the notion that “the King can do no wrong.”  Notably, the Department’s position in that fourth instance was set out in a brief that it filed with the Supreme Court in United States v. Nixon, written by the Watergate special prosecutor.

Arguably, that special prosecutor had more leeway than the current one to disagree with his Justice Department colleagues on this issue, given that Mr. Mueller’s appointment is governed by a newer set of special-counsel regulations.  Those new rules might require him to adopt the Office of Legal Counsel’s official position that the President is immune from prosecution—if adherence to OLC’s legal analyses fits within Mueller’s regulatory obligation to “comply with the rules, regulations, procedures, practices and policies of the Department.”  That reading of the special-counsel rules, however, may not be the most natural, given that the regulatory text seems to focus more on administrative protocols and procedures than on legal analyses, arguments, or judgments.  The regulations’ purpose, moreover, was to insulate the special counsel from Departmental pressure to adopt positions that favor the political targets of his investigation—including, perhaps, positions crafted by presidential appointees that suggest novel special immunities, untethered to constitutional history or text. 

As the Department acknowledges, there is “scant precedent to scrutinize when interpreting the [current special-counsel] regulations because only one previous special counsel [has been] appointed under them.”  Mueller thus must consider for himself not only the merits of the presidential immunity issue, but also the question of how much deference he owes to OLC’s prior analyses. Significantly, however, the substantive merits of the immunity question are no more settled today than in the past.  And if Mueller were to conclude that he does indeed have the authority to make an independent assessment of that issue, his conclusion could be overruled only if Deputy Attorney General Rod Rosenstein were to certify to Congress that Mueller’s conclusion was “so inappropriate or unwarranted under established Departmental practices that it should not be pursued,” a politically challenging position for Rosenstein to take, given the de facto independence Mueller will enjoy by virtue of his stature and his reputation.

And so, Mr. Mueller will inevitably have to confront the immunity issue in one form or another, along with the legal and factual issues of actus reus and mens rea set out above.  And then, he will have to make a decision about how to proceed.  Should he conclude that there is probable cause (the applicable legal standard) that Trump committed a crime, and should he also determine that there are sufficient legal grounds to adopt the Watergate special counsel’s position against presidential immunity, one question still remains.  Not whether the President can be indicted, but whether he should be.  And that, really, is the ur-question of prosecutorial discretion underlying and informing the whole endeavor.  It’s a question of interest balancing not within the analytic confines of legal doctrine, but rather within the broader equitable domain of judgment: Is it in the interest of the United States, whom Mr. Mueller now represents, for its President to be prosecuted for a crime if, after a careful and thorough investigation, there is sufficiently strong evidence that he is, in fact, guilty? 

That is a heady question. Though in truth, questions of prosecutorial discretion—sometimes, literally, questions of life or death—often are.  But resolving such questions is what prosecutors in our system do.  They collect and examine all the facts, they assess all the legal arguments, they balance the equities.  And then they make a call.  

I, for one, don’t envy Mr. Mueller that responsibility in this case.  But of this much I am confident: should he decide to take us down the road to United States v. Trump, he would be acting well within the law, the norms of the profession, and the reasonable bounds of the discretion with which he has been entrusted.

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