Fox News legal analyst says Mueller 'dropped the ball' by deciding not to indict Trump

Fox News legal analyst Andrew NapolitanoAndrew Peter NapolitanoAndrew Napolitano out at Fox News amid allegations of harassment Fox's Napolitano says grand jury erred in Taylor case: 'I would have indicted all three of them' Fox's Napolitano: Supreme Court confirmation hearings will be 'World War III of political battles' MORE on Wednesday said that special counsel Robert MuellerRobert (Bob) MuellerSenate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel MORE erred by electing not to indict President TrumpDonald TrumpJulian Castro knocks Biden administration over refugee policy Overnight Energy & Environment — League of Conservation Voters — Climate summit chief says US needs to 'show progress' on environment Five takeaways from Arizona's audit results MORE because presidents cannot be prosecuted, arguing that "no one is above the law."

"Here's where I think Mueller dropped the ball," Napolitano said in a new edition of the digital series "Judge Napolitano's Chambers."

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"Mueller says the president can't be prosecuted because presidents can't be prosecuted. Well, if presidents can't be prosecuted, then they're above the law. And we know, the basic principle of American jurisprudence is no one is above the law."

"Surely an indictment could be had, and maybe they're not going to actually prosecute the indictment until the president leaves office. But nobody can get away with that kind of lawbreaking," the former New Jersey judge continued, referring to the instances documented in Mueller's report of possible obstruction of justice. 

He added that obstruction of justice is an impeachable offense, noting that former Presidents Nixon and Clinton were both impeached over allegations that included obstruction.  

But Napolitano said Trump's "legal woes" are now behind him. 

"Impeachment is not legal, it's political," Napolitano explained. "But it cannot succeed without broad bipartisan support behind it. I don't think that support is there today."

Mueller said last week in his first public remarks about his investigation that the special counsel's office did not charge Trump with a crime because it was “was not an option” under regulations from the Department of Justice about indicting a sitting president. 

Mueller also stated that if his team "had confidence that the president clearly did not commit a crime, we would have said that.”

Napolitano said at the time that Mueller had essentially said that Trump would have been indicted had he not been president. 

“Basically he’s saying the president can’t be indicted, otherwise we would have indicted him, and we’re not going to charge him with a crime because there’s no forum in which for him to refute the charges, but we could not say that he didn’t commit a crime — fill in the blank, because we believe he did," he said. 

Mueller's report, which was released in April, did not find sufficient evidence to conclude a conspiracy between the 2016 Trump campaign and Russia took place. The report also noted that Mueller did not reach a conclusive determination on whether Trump obstructed justice. 

Napolitano pointed out in April that the report contained "at least a half-dozen" instances of Trump possibly committing obstruction of justice.