Could Prosecute Is Not the Same as Should Prosecute

Having watched most of Robert Mueller’s testimony before the House Judiciary and Intelligence committees last week, I’ve come to the following conclusions:

1. We learned nothing new, nada, zip, zilch. That is not surprising as Mueller when he closed up the Special Counsel’s office he said he would not testify about anything beyond the report.
2. Questions about his mental acuity are fair. He was not sharp and in several instances was uncertain about what was in his report. I think it’s clear it was written mostly by his staff which wouldn’t be unusual, but how much control over the investigation did he have? I don’t know.
3. Treating this testimony as some silver bullet for impeachment is just political spin because back to my first point – we learned no new information.

Mueller’s answer about whether or not the President could be prosecuted when leaving office seems to give Democrats something to latch onto.

U.S. Rep. Ken Buck, R-Colo., asked Mueller, “Could you charge the president with a crime after he left office?”

Mueller answered, “Yes.”

“You believe you could charge the president of the United States with obstruction of justice after he left office?” Buck asked in a follow-up question.

“Yes,” Mueller answered. “The OLC (The DOJ’s Office of Legal Counsel) opinion says that the prosecutor, while he cannot bring a charge against a sitting president, nonetheless can continue the investigation to see if there are any other persons who might be drawn into the conspiracy.”

Watch:

Yes, a prosecutor could bring charges against the President after he left office. He or she would not be bound by the DOJ policy at that point. That does not mean that enough evidence exists, you have to prove corrupt intent, to charge, or that a prosecutor should charge the president.

He was asked a technical hypothetical. His office did not draw any conclusions about the President’s innocence or guilt in the report.

Later, U.S. Ted Lieu, D-Calif., walked Mueller through three of the elements to an obstruction of justice charge. At the end of that line of questioning, Mueller said, “Well, the only thing I want to add is that I’m going through the elements with you do not mean or does not mean that I subscribe to the — what you’re trying to prove through those elements.”

He also admitted to U.S. Rep. Debbie Lesko, R-Wisc., that he was allowed to continue his investigation unencumbered. That doesn’t scream obstruction.

So while a overzealous prosecutor could attempt to charge the President after leaving office the likelihood he or she would succeed in court I think is negligible.

Democrats latching onto Mueller’s statement that the president “could” be prosecuted upon leaving office are reading into what he meant.