Dispatch, Memos April 18, 2019

The Mueller Report, Like the Watergate Roadmap, Should be Considered an Impeachment Referral


Despite Attorney General Bill Barr’s redactions and spin, it is clear that the report by Special Counsel Robert Mueller should be considered an impeachment referral for obstruction of justice by the President of the United States, akin to Watergate Special Prosecutor Leon Jaworski’s “roadmap” detailing troubling actions by President Richard Nixon.

Mueller has provided clear evidence of obstruction of justice, including “public attacks on the investigation, non-public efforts to control it, and efforts in both public and private to encourage witnesses not to cooperate with the investigation.”

However, like Jaworski, Mueller concluded that he could not indict a sitting president because of Department of Justice regulations holding that a sitting president cannot be indicted. Instead, Mueller concluded that it would be inappropriate for his office to render an prosecutorial judgment on whether the president committed a crime, given that the president would not be able to face the charges in court and hence would not have the opportunity of a trial to contest the findings, and that for Mueller to make such charges would “potentially preempt constitutional processes for addressing presidential misconduct.” The primary constitutional process for addressing presidential misconduct is impeachment.

Mueller wrote: “we considered whether to evaluate the conduct we investigated under the Justice Manual standards governing prosecution and declination decisions, but we determined not to apply an approach that could potentially result in a judgment that the President committed crimes … Fairness concerns counseled against potentially reaching that judgment when no charges can be brought. The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor’s judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.” The exact same limitations apply to Attorney General Barr, who nevertheless improperly and inaccurately made the assertion that no obstruction had occurred.

Mueller didn’t simply decline to make a “traditional prosecutorial judgment”—he specifically left the question of whether Trump obstructed justice unanswered, even while answering others. In concluding his analysis of the evidence, Mueller wrote, “if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment”—hence, the conclusion that, “while this report does not conclude that the President committed a crime, it also does not exonerate him.”

The report lays out damning information about the interactions between Trump’s campaign and Russian operatives, before detailing an unprecedented two-year effort to obstruct the investigation into those interactions. The report states that Trump and his associates’ actions “materially impaired” the investigation, and would likely have successfully terminated the probe if top Trump aides and advisers had not chosen to disregard direct orders from the president. It reveals the characterization of the report by President Donald Trump and Attorney General Barr to be fundamentally fraudulent. By detailing the desperate lengths to which Trump went to conceal this information, almost all of which was known by the Russian government, it leaves no doubt that the Russian government had immense leverage over Trump during a time that Trump was fundamentally reorienting American foreign policy in line with Russian foreign policy goals.

A comparison of the Mueller report and Jaworski roadmap makes the parallels clear:

The Watergate roadmap declined to make a “traditional prosecutorial judgment” regarding Nixon. As The Washington Post’s Bob Woodward and Carl Bernstein wrote at the time, the grand jury “considered indicting the President, but decided not to do so after Special Prosecutor Leon Jaworski concluded that the Constitution precludes the indictment of an incumbent president.” As submitted to Judge John Sirica, the roadmap does not explicitly identify any criminal statutes under which they considered indicting Nixon or which Congress could bring against the president in its impeachment proceedings. Instead, it straightforwardly recounts the events of Watergate and the Nixon administration’s subsequent cover-up, while leaving prosecutorial determinations up to Congress.

The Watergate roadmap delegated authority for such a prosecutorial decision not to the attorney general but to Congress. The distinction was extremely important at the time because, even absent much of what we know now about Nixon’s efforts to obstruct the Watergate investigation, it was already clear that Nixon saw protecting the president from troublesome investigations as a key duty of the attorney general. (Nixon had, after all, forced out his previous attorneys general specifically because they had refused to end the investigation into him.) Upon receiving the report, Judge John Sirica concluded that “delivery to the [House Judiciary] committee is eminently proper, and indeed, obligatory.”

As a result, the Watergate roadmap was received for what it was: an impeachment referral. The Watergate grand jury submitted its 62-page roadmap to Sirica on March 1, 1974. By March 18, Sirica had determined “that there can be no question of [the report’s] materiality” to the House’s investigation into Nixon’s conduct. In his decision, Sirica wrote, “It would be difficult to conceive of a more compelling need than that of this country for an unswervingly fair inquiry based on all the pertinent information.” As such, he turned over the report—unredacted—to the House Judiciary Committee to ensure that Nixon could be properly held accountable.

The parallels between the Watergate roadmap and Mueller’s report could not be clearer. Like Jaworski’s report, the story Mueller tells is incredibly damning. His report describes a concerted effort by the Trump campaign to further an unprecedented attack on American democracy, followed by a years-long attempt to cover up their actions.