A Critique of Mueller that Misses the Point

Perhaps NRO's Charles W. Cooke needs to read the report (and do a better job of putting Mueller's statements in context).

Charles W. Cooke has a lament about Mueller’s press conference this week. He thinks that it is unfair that Mueller said “If we had had confidence that the president had clearly not committed a crime we would have said so.” 

Indeed, it “infuriates him.”

That’s not how it works in America. Investigators are supposed to look for evidence that a crime was committed, and, if they don’t find enough to contend that a crime was a committed, they are supposed to say “We didn’t find enough to contend that a crime was committed.” They are notsupposed to look for evidence that a crime was not committed and then say, “We couldn’t find evidence of innocence.”

I understand that Mueller was in an odd position. I understand, too, that this wasn’t a criminal trial. But I don’t think those norms are rendered any less important by those facts. 

[…]

“Not exonerated” is not a standard in our system, and it shouldn’t be one in our culture, either.

‘Not Exonerated’ Is Not a Standard Any Free Country Should Accept

While Cooke states he understands that Mueller is in “an odd position” and “that this wasn’t a criminal trial” he then hand waves all of that away.

First, Mueller (or any investigation of this nature) is not going to be the final word (and never was). Even if he had been able to fully exonerate Trump in every way, the AG and the Congress would still have significant roles to play.

Mueller was an investigator, not a judge and jury. He is providing evidence to other actors to then make choices about how to proceed. He never had the power to declare innocence or guilt. While his investigation could have ended in no evidence of wrongdoing, and hence a clear exoneration in the sense that there was literally nothing to further pursue, the reality is that he did find evidence (it is in the report that I now wonder if Cooke has read).

Second, and more importantly, the “odd position” Mueller is in, beside not being the final word, is that the DOJ policy on not indicting a sitting president closes off the route of declaring there is enough evidence to formally indict (and Mueller made that quite clear in his statement, contra the way Barr has presented that issue previously).

Indeed, Mueller is being conservative in saying that he can’t exonerate and leaving it to Congress to act without making he judgement himself that an impeachment inquiry should be pursued. The report is highly suggestive that impeachment might well be appropriate, but it does not take it upon itself to make such a recommendation to Congress.

Mueller is not in a position to declare Trump officially “not guilty” as Cooke seems to want. He is not the final adjudicator. As an investigator he has been able to provide 400+ pages of evidence about which another body has to render final judgement. Normally, that would be a grand jury and then, if indictments were handed down, a court of law.

DOJ policy precludes that route (at least as long as Trump is in office). That means there are three options: 1) do nothing and let the political process take its course, 2) wait until Trump is out of office and let the normal judicial process run its course, or 3) Congress can take up its constitutional prerogative and impeach.

Cooke’s frustration with the current state of the investigation is that the only route that can lead to a formal outcome at the moment is the most politically fraught: the impeachment process. And even that process is unlikely to result in a clean outcome that the country finds satisfying. Not surprisingly, the only real judgement about the Trump presidency is going to be a fully political one: the election.

And, I would note, that neither the election nor the impeachment process can end in a legal verdict of either guilty or not guilty. Neither mechanism is a legal one of the nature that Cooke seems to want.

But the lament that drives Cooke’s fury on the lack of an “innocent until proven guilty” standard starts with the obviously political nature of any presidential investigation means that judgement are already clouded. But, worse, the ability to get a clear legal judgement is made impossible by the DOJ prohibition on indictments of sitting presidents.

That policy means that the president is removed from the criminal justice system while in office. There are sound reasons for the policy, but the current case does demonstrate that it largely sets the president outside of the law that leads to things like Mueller’s conclusion. This has serious implications if presidents are truly bent on illegality while in office (or if they simply don’t care about it).

It should be noted, if one reads the report, there is substantial evidence of obstruction by this president. A non-president would almost certainly be facing criminal charges at this point. But the DOJ blocks that route. So, if Cooke is angry about the lack of a true verdict, that is where his anger should be focused, since Mueller knows he cannot go the normal route with Trump (i.e., the route that would apply to all other Americans).

FILED UNDER: Donald Trump, Impeachment, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is Professor of Political Science and Dean of the College of Arts and Sciences at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. gVOR08 says:

    Cooke didn’t miss the point. He’s supporting Trump’s tweeted case that,

    There was insufficient evidence and therefore, in our Country, a person is innocent.

    Trump, of course , lied about Mueller’s statement and even if this were the appropriate standard “not guilty” =/= “innocent”. But Cooke said what he intended to say. Lying =/= missing the point.

    I commented some time ago that ‘I can’t indict, therefore I can’t accuse’ is too Jesuitical for the marginally engaged general public. The RW press will be working overtime to ensure it.

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  2. Kit says:

    In another age, Mueller would certainly have been correct at every step. But he’s not a Rip Van Winkle ignorant of today’s political realities. Rather than laying out the evidence and background such that a careful reading reveals a subtle argument for guilt (like a man in prison trying to slip a message passed the guards), he should have stated his conclusion more baldly. Where would we be today had Mueller said: Had these actions involved anyone other than the President of the United States, me and team would recommend to the Justice Department to prosecute for the following crimes… And if that wasn’t his intention, then he should have stated that clearly.

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  3. @gVOR08:

    I commented some time ago that ‘I can’t indict, therefore I can’t accuse’ is too Jesuitical for the marginally engaged general public. The RW press will be working overtime to ensure it.

    Indeed.

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  4. Kathy says:

    Roman emperors were formally above the law. Many of them, however, made a show of pledging to nevertheless abide by the law. This was merely symbolic, as even criminal matters required a citizen undertake prosecution, and who’d dare prosecute the emperor? But it forced many to at least pretend to bide by the law, meaning they had to resort to changing the law sometimes to get what they wanted.

    Far from ideal, to be sure, but when a good emperor, or at least a conscientious one, occupied the throne, things worked reasonably well.

    In the American system, the president is not supposed to be above the law. Indeed, he swears an oath to “…preserve, protect and defend the Constitution of the United States.” But in practice, Dennison has made it clear the Oval Office occupant can do whatever the hell he wants, as long as his party is afraid of him and needed to convict on impeachment.

    The blame here rests with the GOP more than with El Cheeto. They’re like the cops in the movie “The Untouchables” who are content with mafia payoffs, and choose to look the other way.

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  5. gVOR08 says:

    @Kit: With Comey, Mueller, and Rosenstein I’m beginning to feel like ramrod up backside, upright, self righteous, FBI/DOJ types are going to be the death of the Republic.

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  6. Jay L Gischer says:

    As I was reading this, I started to wonder how it is that a smart man like Cooke has so much trouble parsing what Mueller said. The tempting conclusion is bad faith.

    But then I recall stories about cults where the leader predicts the end of the world at midnight. The next morning, the cultists don’t all leave the cult, they come up with an alternate explanation for why the world didn’t end, rather than give up their core beliefs. You know, Baal decided to spare us for another (day, week, month) for some reason.

    And each challenge to the belief is sort of wrestled with and disposed of. Frankly, I’ve been through that process a few times. I think we need to make people like Cooke squirm uncomfortably until they give up a few cherished beliefs.

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  7. Hal_10000 says:

    @Kathy:

    There have now been several Trump appointees who have pretty openly violated the Hatch Act and dared the govt to prosecute. They’re not just not obeying the law; they are gleefully and openly breaking it.

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  8. gVOR08 says:

    @Kathy: Quite right, Trump is establishing precedents that the prez is above the law. One of the first orders of business for the next House should be passing legislation overriding the DOJ opinion that the prez can’t be indicted. I’m not sure a law can override an opinion, but one would hope DOJ would have to defend the opinion in court. If McConnell, Boof, Gorsuch, et al are looking at a D prez, I expect it would coast through the senate and the courts. Might lead to harassing charges against the D prez, but nothing in life is free.

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  9. Paul L. says:

    CHARLES C. W. COOKE is a part of GOP right-wing rape apologist smear machine attacking the accusers of the credibly accused UVA Frat Gang rapists and Brett Kavanaugh . He help to create a toxic narrative so bad, insulting and hurtful that progressives refuse to talk about it.

    IMPEACH TRUMP!

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  10. drj says:

    @Paul L.:

    My dude.

    You might not have noticed, but the mirror you are pretending to hold up to other commenters is facing YOU.

    I guess you’re trying to be ironic, but you’re not pulling it off.

    It’s like you are speaking a made-up language. It’s gibberish. You sound genuinely unhinged.

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  11. Bob@Youngstown says:

    @gVOR08:

    I’m not sure a law can override an opinion….

    Are you confusing the OLC Memo of Opinion with a judicial opinion. I read the OLC as a memorandum to prosecutors that might be used to argue (before a court) that a particular action is justified. Contrast that with a judicial opinion the justifies an judicial order.

    I’ve not been able to find anywhere in the Justice Manual (previously known as the US Attorney Manual) that “orders” prosecutors to not indict or charge a sitting president. So you have the DOJ with an opinion, but no order.

    Opinions are like ********, everyone has their own.

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  12. Paul L. says:

    @drj:

    It’s like you are speaking a made-up language. It’s gibberish. You sound genuinely unhinged.

    No wonder, I am just parroting progressive talking points.
    rape apologist
    smear machine
    credibly accused
    toxic, insulting and hurtful

    “And most of the members said that they would refuse to talk about that day because it was so insulting,”

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  13. Daryl and his brother Darryl says:

    @Paul L.:
    My, aren’t you just the most precious little thing?

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  14. Daryl and his brother Darryl says:

    @Paul L.:

    toxic, insulting and hurtful

    That link is 6 years old…and the Tea Baggers have since proven it to be absolutely correct.
    They all voted to explode the deficit…leaving race as the only explanation of their existence.

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  15. michael reynolds says:

    You almost have to pity poor Mr. Cooke. How do you go on pretending to believe the bullshit you’ve been pretending to believe for years when slavish servitude to Trump requires pretending to believe some other bullshit, only to have that bullshit replaced in the next Tweet from the unhinged cretin in the White House? For Republicans groveling is an Olympic sport, you have to grovel at top speed to keep up.

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  16. gVOR08 says:

    @Bob@Youngstown: Quite agree with you. No, I didn’t mean court opinion, I meant legal opinion, the sort you can pay a lawyer to write whichever way you want. The OLC opinion is at the heart of this, and it’s bullshit, untested in court. As far as I can see, it’s binding on DOJ only because Barr wants it to be.

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  17. drj says:

    @Daryl and his brother Darryl:

    That link is 6 years old

    FWIW, his other link is five years old.

    But it is his complete incoherence that gets to me. No trace of an argument (or rational thought of any kind) to be found.

    A bunch of slogans stripped of any underlying meaning, that’s it.

    It reminds of me Orwell’s “The Principles of Newspeak” (the appendix to 1984):

    Even in the early decades of the twentieth century, telescoped words and phrases had been one of the characteristic features of political language; and it had been noticed that the tendency to use abbreviations of this kind was most marked in totalitarian countries and totalitarian organizations.

    Examples were such words as Nazi, Gestapo, Comintern, Inprecorr, Agitprop. In the beginning the practice had been adopted as it were instinctively, but in Newspeak it was used with a conscious purpose. It was perceived that in thus abbreviating a name one narrowed and subtly altered its meaning, by cutting out most of the associations that would otherwise cling to it.

    The words Communist International, for instance, call up a composite picture of universal human brotherhood, red flags, barricades, Karl Marx, and the Paris Commune.

    The word Comintern, on the other hand, suggests merely a tightly knit organization and a well-defined body of doctrine. It refers to something almost as easily recognized, and as limited in purpose, as a chair or a table. Comintern is a word that can be uttered almost without taking thought, whereas Communist International is a phrase over which one is obliged to linger at least momentarily.

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  18. wr says:

    @michael reynolds: “How do you go on pretending to believe the bullshit you’ve been pretending to believe for years when slavish servitude to Trump requires pretending to believe some other bullshit, only to have that bullshit replaced in the next Tweet from the unhinged cretin in the White House?”

    Apparently it’s a lot easier when you’re getting paid for it.

    I wonder more about the amateur Trump-lickers who do this for free. Hey, Maybe Drew could explain how he does it.

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  19. Gustopher says:

    @gVOR08:

    One of the first orders of business for the next House should be passing legislation overriding the DOJ opinion that the prez can’t be indicted.

    Why wait?

    It isn’t going to get taken up by the Senate, but the hundred or so bills the House has passed aren’t going to be taken up by the Senate. If the House is slow walking impeachment, they have the time.

    I wouldn’t stop at that though — I would want a bunch of bills to cut down the entire unitary executive nonsense. Trump is raising tariffs based on national emergency claims, so put a bill together that limits his ability to do that to 30 days, which is plenty of time for congress to approve it. Similar changes to other national emergency laws.

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  20. mattbernius says:

    [edit: Removed by author because he thought better…]

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  21. Kathy says:

    @Hal_10000:
    @gVOR08:

    It will be instructive how the GOP takes it when Democrats begin applying the lessons imparted by Dennison.

    A piece in Politico makes a good case they’ve already started doing so in the presidential primary.

    If the winner goes on to break norms and do as they please, keep in mind most of the people running are neither as incompetent, self-absorbed, ignorant, or as unwilling to learn as Trump. the damage they can do, in the long term, is much greater.

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  22. An Interested Party says:

    It’s sickening to watch supposed “conservatives” bend over backwards to support this trash in the White House…these supposed “conservatives” have no principle that they will hold to if it means going against their tribal leader…these people can be accurately described as bootlickers, toadies, and sycophants, but definitely not conservatives…

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  23. Paul L. says:

    @drj:
    The only meaning I need is the UVA story fell apart but progressives still believe it to be true.
    They place the blame wholly on the Journalistic lapses by Rolling Stone/Sabrina Erdely and excuse and ignore any contradictory evidence. Because misogynist rape apologists!

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  24. Daryl and his brother Darryl says:

    @Paul L.:

    The only meaning I need is the UVA story fell apart but progressives still believe it to be true.

    I suppose…if your entire understanding of Progressives comes from the Daily Caller.

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  25. mattbernius says:

    @Paul L.:

    UVA story fell apart

    So just so we’re on the same page, you are comparing a debunked Rolling Stone article written by a single reporter to the Mueller investigation that has already produced seven guilty pleas and one conviction at trial.

    Total apples to apples comparison there.

    Man, I would have gone for Duke Lacrosse, at least then you could check you “out of control prosecutor” on your bingo card.

    [edit: Countdown to perjury trap…]

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  26. @Paul L.: If you have a direct argument with the post, please make it.

    If you have an argument about the Mueller Report that is relevant to this post, please make it.

    However, please stop making silly “hey what about X” diversions.

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  27. Paul L. says:

    @Steven L. Taylor:
    Attacking the messenger Charles W. Cooke is not a valid argument?
    I was pointing out the last time Charles W. Cooke got major pushback on a article.

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  28. wr says:

    @Paul L.: “I was pointing out the last time Charles W. Cooke got major pushback on a article.”

    Were you? Maybe you should have tried to, you know, say it.

    We ain’t your little nutbag tree fort here. You can’t just drop a proper noun and assume everyone knows exactly what you mean and agrees with it.

    Why don’t you actually say what you mean? Then instead of making fun of your for posting incoherent gibberish, we can make fun of you for posting… well, different kinds of incoherent gibberish.

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  29. Guarneri says:

    Mueller cannot indict, but he can recommend indictment. That’s is crystal clear.

    He chose not to, and punted to the AG. Barr, Rosenstein and any Other in the DoJ looked at the facts and the law and declined to indict. Case closed. Mueller had his chance, but deferred.

    Mueller subsequently, and in a cowardly fashion having failed to accept the responsibility of making a recommendation, decided to hold a press conference in which he threw the issue into the kangaroo courts of media, pundits and rabid Democrats. He still made no decision, but instead dangled the notion of exoneration, foreign to the law wrt prosecution. And then he turned and slinked into the dark like a yellow running dog.

    Case closed.

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  30. mattbernius says:

    @Guarneri:

    Mueller cannot indict, but he can recommend indictment. That’s is crystal clear.

    This is the weakest of tea. He has twice stated on the record the policy. Barr has never denied the policy and in fact has stated that is his belief as well.

    You are not that stupid, right? I meam, we know you are dishonesy. But you are not stupid.

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  31. @Guarneri:

    , but he can recommend indictment.

    How can he recommend an indictment if DOJ policy states a sitting president cannot be indicted?

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  32. @Paul L.:

    Attacking the messenger Charles W. Cooke is not a valid argument?

    I am not sure what you are doing, TBH.

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  33. EddieInCA says:

    Charles Cooke didn’t miss the point.

    William Barr didn’t miss the point.

    Sean Hannity didn’t miss the point.

    Guarneri didn’t miss the point.

    All of these people, and many others like them, are CHOOSING to believe in a fairy tale that President Trump is squeaky-clean on all items Russia and Obstruction of Justice related. They’ve chosen to put their faith in a sad, pathetic con-man with the intelligence of a 12 year old, the vocabulary of a 10 year old, and the temperament of an 8 year old.

    Sad!

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  34. Bob@Youngstown says:

    @Guarneri:

    Barr, Rosenstein and any Other in the DoJ looked at the facts and the law and declined to indict

    Does the OLC memo apply only to Mueller? They didn’t decline to indict, the OLC memo removed indictment from their hands as well.

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  35. Andrew says:

    It is not so much a cult of personality. Big, loud, sugar daddy fetishes. Or red vs blue.
    I think it is a matter of people simply not caring who breaks the law, as long as a person gets to live vicariously through them.
    The GOP base has been lied to for so long in regards to government, and any one not on the Republican Gravy Train riding on tracks of greed, powered by special interest money, and on its way to Authoritarian Land! That they will simply not care if the the GOP does what it is doing. Or if Russia handed the election to Trump.

    The government is the enemy.

    For Mueller to come out and blatantly proclaim the President has obstructed justice, and politely put his boot up congress’ collective ass as far as doing it’s job…Trump by law, by the founding fathers, by what this country was built on…Trump should have impeachment proceedings started.
    But, no, cause The government is bad, and they wouldn’t get their daily vicarious fix. This is why we have people writing these bullshit articles at NRO, or why we have people rooting on Barr going after the investigators. It’s not that they buy the lie. They want to live the lie. And that just so happens to be Trump’s forte

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  36. drj says:

    @wr:

    Maybe you should have tried to, you know, say it.

    I think he – literally – can’t.

    Paul L. is using language (“UVA rape scandal,” “Brett Kavanaugh,” “Charles W. Cooke”) not to facilitate thought (or discussion), but to sidestep it.

    These are slogans tailored to elicit a strong, immediate emotional response among the faithful.

    You can tell, because as soon as he tries to incorporate these phrases in a vaguely coherent sentence, it all falls apart; and the ridiculousness of it all becomes immediately apparent.

    This is part of what Orwell was talking about when he came up (based on his own experiences with communist and fascist language in the 1930s) with his notion of “newspeak.”

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  37. wr says:

    @mattbernius: “But you are not stupid.”

    I believe that’s what’s called an assertion without evidence.

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  38. Rick Caird says:

    @gVOR08:

    You are completely and utterly wrong. There was nothing precluding Mueller from concluding “there was sufficient information to indict Trump for obstruction. But, DoJ rules preclude indicting a sitting President”. However, Mueller knew that he did not have enough to make that claim. So, instead he offered an alphabet soup that said nothing and left confusion in its wake. I suspect Mueller did not want to admit his two year investigation produced nothing. So, he fudged,

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  39. @Rick Caird: If you read the report, you will find that Mueller directly states that it would be unfair to suggest an indictment when Trump could not, as per DOJ guidelines, defend himself in court.

    He argued it would be unfair to make accusations that could not be immediately defended in court.

    Fairness concerns counseled against potentially reaching that judgment when no charges can be brought. The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor’s judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.

    Vol 2, page 2

    Indeed, that is why the report refers further action to Congress, which has the constitutional prerogatives needed to act, especially in the face of the OLC opinion.

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  40. @Rick Caird: Also, from Mueller’s own mouth this week:

    The introduction to the Volume II of our report explains that decision. It explains that under longstanding department policy, a president cannot be charged with a federal crime while he is in office. That is unconstitutional. Even if the charge is kept under seal and hidden from public view, that, too, is prohibited. A special counsel’s office is part of the Department of Justice, and by regulation, it was bound by that department policy. Charging the president with a crime was therefore not an option we could consider.

    And to my point above:

    And second, the opinion says that the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing. And beyond department policy, we were guided by principles of fairness. It would be unfair to potentially — it would be unfair to potentially accuse somebody of a crime when there can be no court resolution of the actual charge.

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  41. Warren Peese says:

    Whether Mueller said that Trump committed felonies or not, the evidence of multiple counts of obstruction is right there in the report. Rosenstein was fairly clear from the get-go that any offenses committed by Trump would be reported to Congress.

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