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

Fox News legal analyst Andrew NapolitanoAndrew Peter NapolitanoFox's Napolitano: Roger Stone 'absolutely entitled' to new trial after juror's tweets revealed Fox's Napolitano calls Trump acquittal 'legal assault' on Constitution: 'Somewhere, Nixon is smiling' Napolitano says bringing up new charges would be 'mistrial' if impeachment were in criminal court MORE on Wednesday said that special counsel Robert MuellerRobert (Bob) Swan MuellerCNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump CNN anchor rips Trump over Stone while evoking Clinton-Lynch tarmac meeting The Hill's 12:30 Report: New Hampshire fallout MORE erred by electing not to indict President TrumpDonald John TrumpTrump administration eyes proposal to block jet engine sales to China: report Trump takes track to open Daytona 500 Brazile 'extremely dismayed' by Bloomberg record 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.