The claim that Mueller believes you’re guilty until proven innocent is demagogic nonsense, so it’s not surprising that the canard is a favorite meme now on the Right
This is extraordinarily stupid.
Mueller’s position (it appears to be his own privately held position and not just that of Barr and the DOJ) is that a president cannot be indicted for a federal crime while he is in office. @RepDougCollins 1/28
This view has some odd consequences, because our natural intuition tells us that if a person is guilty, he or she should be indictable.
The intuition goes something like this: 2/28
In a legal system, a person is guilty if and only if a law has been violated (the law must be specified), and a person can be charged for a crime only if the government can produce sufficient evidence to show that the person committed that crime. 3/28
Furthermore, our intuitions tell us, an indictment necessarily asserts (but does not establish) a connection between the indictment, the evidence, the alleged criminal act, and the alleged guilt of the actor. 4/28
But according to the OLC opinion, these common sense intuitions fail to hold for a sitting president. In the case of a POTUS, the connection between chargeability and the notion of guilt is severed. 5/28
If one were to hold to a view that a crime must necessarily be chargeable, then the legal theory that a president cannot be indicted for a federal crime while holding office 6/28
would entail that a president must in truth be innocent, not guilty, as long as he holds office.
That is, on this view a sitting president must always be assumed to be innocent as a matter of fact: not just presumed to be innocent under the law.
But this would be an absurd conclusion.
In that case, a prosecutor would be assuming even before undertaking an investigation that the subject was innocent, but of course, if an investigator were to assume that in actual fact the subject was innocent, he would have no reason to undertake the investigation!
In order to avoid confusion about these matters, it is essential to distinguish between what actually happens, or may have happened, and what one can say has happened within the confines of the law.
Let us stipulate that A murders B. A homicide has occurred. Such things happen in the real world. But within the confines of the law, one cannot assert that A has committed the crime until A has been arrested, indicted by a grand jury, and convicted by a trial jury of the crime. Then, and only then, can one assert that a crime has been committed under the law.
Once this distinction is kept in view, it should be easy to see why the two positions in 6/28 above cannot be held together at the same time.
The legal theory that a sitting president cannot be indicted is a legal theory. The intuition that a crime must be chargeable is an intuition that we apply to the real world outside the confines of the law.
Outside the framework of the law, if A murders B, then A is guilty of the crime even before he is charged and convicted. In fact, A is guilty of the crime even if he escapes justice and is never caught and convicted for the crime at all.
It is the attempt to combine these two different viewpoints that would lead to the absurd conclusion that a sitting president must be considered to be innocent, whereas a special prosecutor like Mueller who investigates a sitting president is concerned to determine whether he is guilty or innocent.
Anyway, to return:
No other person in the country has the kind of immunity that the Office of Legal Counsel opinion ascribes to a sitting president. Everyone else can in principle be convicted of a federal crime upon a showing of evidence beyond a reasonable doubt.
But a sitting president cannot be, according to the Department’s opinion. 8/28
But that doesn’t mean that a sitting president cannot COMMIT a federal crime while in office.
So what to do. 9/28
What the Department or a special counsel can do is INVESTIGATE whether a sitting president has committed a federal crime while in office. 10/28
If there is sufficient evidence to establish that a sitting president has committed a federal crime or may have committed a federal crime,
the prosecutor can report that the investigation failed to establish that the president has not committed a federal crime. 11/28
Why put it that way? Because the federal prosecutor cannot assert that the president did commit a crime. 12/28
The prosecutor could say that only if the sitting president were indictable, and he isn’t indictable according to the OLC opinion. 13/28
Since a sitting president can’t be indicted, Mueller couldn’t reach a determination that he *should* be indicted either, for the same reasons. 14/28
An indictment can be sealed, but Mueller felt (correctly) that a sealed indictment wasn’t appropriate in this case either. 15/28
Sealed indictments are not uncommon, but they are used for reasons quite different from the ones that apply to the conundrums that apply to indicting a sitting president. 16/28
Furthermore, the practice of sealing indictments had no relevance for Mueller, because the Department intended his Report to be public. 17/28
Barr never mentions this, but it was ROSENSTEIN who authorized the public release of the Report in his 2 Aug 2017 memo to Mueller. Moreover, Mueller clearly intended the Report to be public. This effectively ruled out the use of sealed indictments. 18/28
Even absent Rosenstein’s authorization, Barr would have had to release the Report to the public. He could not have withheld it without that decision being known almost immediately to Congress and to the public. 19/28
This would have led to a huge public outcry and calls to impeach Barr.
Withholding the Report would also have led the public to assume that the Report claimed that Trump was guilty. Of course, that is exactly what the Report does (at least as regards obstruction), 20/28
but the point here is that withholding the Report from the public wouldn’t have given any advantage to Trump and Barr in the court of public opinion.
So Barr’s preening about how he was generous to publish the Report (minus the redactions) is just bullshit. 21/28
Anyway, to return:
While a sitting president cannot be indicted and taken to court for committing a federal crime while he is still holding office, 22/28
the judicial branch can handle an indictment of a sitting president for federal crimes he committed in office AFTER he leaves office. 23/28
Or the House of Representatives can use any evidence of criminal conduct collected by the Department or a special counsel in an impeachment investigation. 24/28
Congress is its own branch of the government, separate from the executive and the judiciary, and it is not bound by the restriction (real or imagined) that a sitting president cannot be indicted and removed from office for committing a federal crime. 25/28
Congress was given the power to do that expressly in the Constitution. 26/28
If the House decides to impeach, the impeachment is referred to the Senate. A trial takes place there under powers granted to it by the Constitution. After that, the Senate can remove a sitting president from office by a ⅔ majority vote. 27/28
NONE of this, obviously, assumes that a sitting president is guilty until proven innocent. @AndrewCMcCarthy 28/28
