Toward the end of Robert Mueller’s testimony before the House Judiciary Committee, the former special counsel had a notable exchange with California Democrat Ted Lieu, in which it appeared that he went further than any prior statement in implicating President Trump on a possible obstruction of justice charge. On CNN, Preet Bharara called the interaction a “bombshell.”
Lieu: The reason, again, that you did not indict Donald Trump is because of OLC opinion that you cannot indict a sitting president, correct?
Mueller: That is correct.
In the context of the Mueller–Lieu sound bite, it appears as if the special counsel stated that he would have indicted Trump if it weren’t for the “OLC opinion,” referring to a precedent established by the Justice Department’s Office of Legal Counsel, which states that the “indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.” By this interpretation, Mueller gave Democrats a huge victory; while they hadn’t expected any grand statements implicating the president, Mueller was saying he would have indicted Trump for obstruction of justice if not for this DOJ precedent.
Unfortunately for Democrats hoping to impeach Trump, Mueller did not mean to express this view. Mueller, who has been perceived as struggling through his testimony, had stated at other points that he did not even consider indicting the president, because that was not within his authority as special counsel— the difference between “I wanted to indict Trump but couldn’t” versus “I never even considered a hypothetical indictment.” Considering that Mueller reportedly stated prior to the hearings that he did not intend to reveal information outside the report, it would have be odd for him to drop a game-changing piece of information hours into his testimony. Indeed, at the start of the House Intelligence session, Mueller clarified his response to Representative Lieu:
Then again, Democrats could always try to impeach Trump for his racist comments, as Texas Democrat Al Green attempted last week.