Sorry to Bear the Bad (But Really Good) News: Trump's Not Likely to be Indicted

It’s going to be a bitter pill for some to swallow, especially on the day of the new president’s first State of the Union address where he will doubtless spend an hour or more talking about his successful first year, but Special Counsel Robert Mueller is not likely to get an indictment against Donald Trump.

So says Paul Rosenzweig in The Atlantic, anyway. And despite the continued insistence from many corners that there simply must be something to the Russian collusion investigation (some people, in fact, seem to be wishing and hoping and praying for that outcome), Rosenzweig’s reasons an indictment will never surface are rational and built on precedent, despite the obvious distress accepting those realities causes him.

Mueller will not indict Trump for obstruction of justice or for any other crime.  Period. Full stop. End of story. Speculations to the contrary are just fantasy.

He won’t do it for the good and sufficient reason that the Department of Justice has a long-standing legal opinion that sitting presidents may not be indicted. First issued in 1973 during the Nixon era, the policy was reaffirmed in 2000, during the Clinton era. These rules bind all Department of Justice employees, and Mueller, in the end, is a Department of Justice employee. More to the point, if we know anything about Mueller, we think we know that he follows the rules—all of them. Even the ones that restrict him in ways he would prefer they not. And if he were to choose not to follow the rules, that, in turn, would be a reasonable justification for firing him. So … the special counsel will not indict the president.

What can Mueller do if he finds evidence of criminality involving the president?  He can and will (as authorized by Department of Justice regulations) file a report on his findings with the attorney general (or, since Attorney General Sessions is, in this case, recused, with the deputy attorney general, Rod Rosenstein)…

…So, every time you read about the threat to fire Mueller, remember this—the critical actor in most future scenarios is not Mueller, but Rosenstein. Knowing Rosenstein personally, I have high confidence that he will make what he thinks is the best decision for the country—the same may not be true of his replacement (or of the replacement attorney general, should Sessions be fired). That, of course, is why the highly dubious “secret memo” prepared by House Republicans reportedly targets Rosenstein—even though he is a Trump appointee who advocated firing Comey, Trump supporters fear he will follow the rule of law.

Now this is The Atlantic, a publication not known for celebrating all things Trump. So it almost goes without saying that Rosenzweig’s not thrilled with his conclusion that Trump is basically already safe from indictment (the question is why one would be somber in their discovery that their president is NOT engaged in criminal behavior, but more on that in a second).

“Indeed, in many ways, the sheer numerosity and blatantness of the president’s interventions suggests that he really is sincere in thinking that he did nothing wrong,” Rosenzweig writes. “Were he truly concerned about the criminality of his former actions, he might well have been more cautious in so openly attempting to subvert the investigation. Unless and until stronger evidence of the president’s personal involvement in contacts with Russian influence peddlers is developed, the derivative obstruction case will remain substantively problematic as well.”

He goes on to suggest there might be something else that looks like smoke having to do with Trump’s finances, but that sounds an awful lot like a consolation prize; and, frankly, would be easy to brush away as a witch hunt now that Democrats have spent the better part of a year throwing everything they thought they had at the wall and being shown to be fairly crooked themselves in their attempt to prove Trump corrupt.

But it remains stunning to see the hung heads and sad looks on those certain the U.S. had elected a criminal — the boorish pre-election behavior simply must have been an indication of a far worse problem — when they realize the man is probably fairly clean. At least insofar as his dealings with Russia and any attempt to use those dealings to get elected. Much cleaner, in fact, than his still-whining opponent Hillary Clinton. I expect those stories to really start hitting the news cycle once the Mueller investigation officially ends.

But it’s worth wondering why people are sad that it turns out we don’t have a criminal in office. You’d think that would be a good thing.

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