How a legal dispute between Mueller and Barr drove the end of the special counsel's probe
For nearly two years, the public, Congress and the White House waited to learn if special counsel Robert S. Mueller III would find that President Trump had committed crimes. When the answer was finally revealed, it turned out Mueller didn’t think that was his job at all.
The special counsel ended his investigation last month, pointedly choosing not to reach a conclusion about whether the president had obstructed justice.
In a report of its findings, Mueller’s team said that choice was driven in large part by a long-standing legal opinion at the Justice Department’s Office of Legal Counsel (OLC) that a sitting president should not be indicted, even if the charges remained sealed.
Mueller's team concluded that also meant they could not accuse the president of a crime, even in secret internal documents, the report said.
That move surprised everyone, including Attorney General William P. Barr and his senior advisers, according to current and former Justice Department officials. When Mueller presented his findings without reaching a decision about the president, Barr reviewed the evidence and decided that Trump had not obstructed justice.
The unusual ending to the investigation stems from a key legal disagreement between Mueller’s team and Barr — opening the door to further political fights over presidential power, Justice Department policies and decision-making inside the Trump administration.
Jonathan Turley, a law professor at George Washington University, said Mueller’s choice not to make a decision on obstruction was “one of the biggest surprises of the report,” and he was still struggling to understand the special counsel’s thought process.
“It doesn’t make any sense, because on collusion, he seemed to be perfectly empowered to reach a conclusion on whether the president committed a crime,” Turley said. “The other problem is that his mandate clearly allowed him to make a decision, and [Justice Department headquarters] had clearly indicated he could make a decision.”
Spokesmen for the Justice Department and the special counsel’s office declined to comment.
The redacted Mueller report released Thursday makes clear that he and his prosecutors viewed the OLC opinion to mean they also could not come to a conclusion about whether the president had committed a crime because it would violate Justice Department standards of fairness to make such an accusation — even secretly — without giving the person a chance to fight the accusation.
Barr disagreed.
In releasing the report Thursday, the attorney general told reporters that Justice Department officials asked Mueller “about the OLC opinion and whether or not he was taking the position that he would have found a crime but for the existence of the OLC opinion.”
“He made it very clear, several times, that he was not taking a position — he was not saying but for the OLC opinion he would have found a crime,” Barr said.
Mueller’s approach to the question of whether the president tried to obstruct justice has created tension inside the Justice Department, according to current and former officials. Privately, some senior officials at the Justice Department have been unhappy that Mueller did not reach a conclusion about whether Trump’s conduct rose to the level of a crime, said the officials, who like others spoke on the condition of anonymity because of ongoing sensitivity surrounding the probe.
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