Justice John Paul Stevens's fiercely modest judicial method
Why Mueller's hedge on obstruction decision was a mistake
As a law professor for 50 years, I would often teach about "difficult issues of law and fact." I would set out the "evidence on both sides of the question" and leave any conclusion "unresolved," so that each student could make up her or his mind. That's what law professors do.
In the area of finance, that's what hedge funds do: They hedge their bets under uncertain economic conditions.
But that's not what prosecutors are supposed to do. They are supposed to evaluate the evidence of guilt against the evidence of innocence, factor in the presumption of innocence and the requirement of proof beyond a reasonable doubt, and come to a decision - to indict or not to indict. That is their job. They are neither law professors, nor hedge fund operators. They are deciders.
Robert Mueller over his long career in law enforcement - U.S. Attorney, director of the FBI, line prosecutor - has had to make tough decisions. His early experience as a Marine surely prepared him to take charge. Why, then, did he cop out on the most important decision of his career: whether to conclude that President Trump's conduct and state of mind constituted obstruction of justice?
Here is how Attorney General William Barr described what Mueller concluded - or failed to conclude:
"After making a 'thorough factual investigation' into these matters, the Special Counsel considered whether to evaluate the conduct under Department standards governing prosecution and declination decisions but ultimately determined not to make a traditional prosecutorial judgment. The Special Counsel therefore did not draw a conclusion - one way or the other - as to whether the examined conduct constituted obstruction. Instead, for each of the relevant actions investigated, the report sets out evidence on both sides of the question and leaves unresolved what the Special Counsel views as 'difficult issues' of law and fact concerning whether the President's actions and intent could be viewed as obstruction. The Special Counsel states that 'while this report does not conclude that the President committed a crime it also does not exonerate him.'"
This left the decision to the attorney general and to Deputy Attorney General Rod Rosenstein. Here is what Barr said:
"... the evidence developed during the Special Counsel's investigation is not sufficient to establish that the President committed an obstruction-of-justice offense. Our determination was made without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president."
This is a troubling conclusion, especially the part about Rosenstein participating in the decision. It was Rosenstein who authored the memorandum to President Trump justifying the firing of James Comey as FBI director. The firing of Comey was at the center of any possible obstruction charge, and Rosenstein should surely have been recused from participating in any decision regarding that act and the state of mind of the president in firing Comey. Yet Rosenstein, who was conflicted, rather than Mueller, who was not, played a critical role in deciding whether the president obstructed justice.
There are other problems, as well, with how Mueller handled the obstruction issue. His public statement that the report "does not exonerate" the president was entirely inappropriate for a prosecutor to make. It is reminiscent of Comey's disastrous and much-criticized decision to add to his proper announcement that Hillary Clinton would not be indicted for her use of a private email server, the entirely improper addendum that she was "extremely careless" in her handling of the emails. In other words, although she was legally exonerated, she was not morally or politically exonerated.
That addendum had serious political consequences, perhaps even to include costing her the 2016 presidential election. Mueller's statement of non-exoneration also will have political consequences, including renewed investigations by House Democrats.
The job of a prosecutor is not to provide grist for partisan mills. It is to decide whether or not to prosecute, and if the decision is not to prosecute, to remain silent. Mueller has failed in that aspect of his job.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. His new book is "The Case Against the Democratic House Impeaching Trump." You can follow him on Twitter @AlanDersh.