How Mueller’s Lawyers Spun the OLC Guidance on Indicting a Sitting President

Andrew C. McCarthy

After Mueller, it is worth another look at its role in the report and its fallout.

Part One: The Mueller Report’s Fundamental Dodge  

Democrats Push Mueller to Contradict Report. That, however, is not how the OLC guidance was construed by Mueller — or, I should say in light of Mueller’s patent unfamiliarity with the Mueller probe, by whoever on the special counsel staff was actually running the investigation.

Part Two:  "This is Part Two of a two-part series. In Part One, we took a look at the OLC guidance that bars the indictment of a sitting president. (The OLC is the Justice Department’s Office of Legal Counsel.) In particular, we looked at (a) how, in investigating President Trump for purported obstruction, special counsel Robert Mueller’s staff distorted the guidance into a prohibition against even considering whether an offense occurred; and (b) the futile hope of congressional Democrats, during Wednesday’s hearings, that Mueller would contradict his final report on this point. 

"In Part Two, we explore why Mueller’s staff of very able lawyers, many of them activist Democrats, twisted the OLC guidance. (Spoiler: Their priority was to get their evidence to Congress, intact and as quickly as possible, in hopes of fueling an impeachment drive, or at least damaging Trump politically.) We also analyze how attorney general Bill Barr deftly dealt with the Mueller staff’s gamesmanship." . . .

Toon added by TD

"As we observed at the end of Part One, Mueller’s report makes the whopper of the claim that prosecutors construed to OLC guidance to forbid them to make a charging decision on obstruction because they were trying to protect President Trump.

"How’s that?

"Well, Justice Department protocols prohibit prosecutors from prejudicing suspects by publicizing the evidence against them unless and until they are formally charged. The idea is that the government must refrain from speaking until it files an indictment. For at that point, the person becomes an “accused” under the Constitution, vested with all the due process guarantees our law provides: assistance of counsel, confrontation of witnesses, subpoena power — the full array of rights to challenge the government’s indictment." . . .