Special counsel Robert Mueller demonstrated Wednesday that he didn’t understand his task as a prosecutor when he insisted that the reason he couldn’t reach a conclusion on obstruction charges was because a sitting president can’t be indicted, contends former assistant U.S. attorney Andy McCarthy.
Nevertheless, he said in live analysis on the Fox News Channel, it’s an “explosive statement” politically, fueling the calls of Democratic Party lawmakers and presidential candidates for further investigation of the president.
“We’re going to be talking about impeachment from now to the foreseeable future,” McCarthy said.
Mueller’s claim that the Office of Legal Counsel guidance specifying that a sitting president cannot be indicted was the reason for not coming to a conclusion about obstruction conflicts with Attorney General William Barr’s testimony.
Barr told Congress on May 1 that at a March 5 meeting with Mueller, the special counsel told him “that he emphatically was not saying that, but for the OLC opinion, he would have found obstruction.”
Nevertheless, McCarthy told Fox News that Mueller’s understanding of his task “is completely wrong.”
“I think it was his responsibility to make a decision about whether there was a prosecutable case,” McCarthy said. “And then it would have been up to the attorney general and the Justice Department to decide whether to invoke the guidance or not that says that a sitting president can’t be indicted.”
Regardless, McCarthy said, Mueller on Wednesday told the world that the reason he didn’t move toward indictment was that the president couldn’t be indicted anyway.
“And then he took the next step of saying, ‘And in any event, in this system, the way that you discipline presidential excess is not left to federal prosecutors,'” the former prosecutor said.
“What he meant by that, obviously, is that it’s left to Congress and the impeachment process,” said McCarthy. “Pretty explosive.”
Congress, he pointed out, doesn’t need a prosecutable case in order to impeach.
President Trump responded immediately to Mueller’s remarks via Twitter.
“Nothing changes from the Mueller Report,” he wrote. “There was insufficient evidence and therefore, in our Country, a person is innocent. The case is closed! Thank you.”
‘Dialed back’ from report’s definitive conclusions
Democrats calling for impeachment have expressed hope that Mueller had more evidence, including some that might have been hidden behind the report’s minimal redactions.
But Mueller said he had nothing more than what’s in his 448-page report.
Fox News’ Bret Baier observed that “the report was more definitive that what Mueller said today,” particularly regarding the collusion charge.
On Wednesday, Baier said, Mueller was “much more dialed back,” emphasizing he had “insufficient evidence” of collusion.
In the report, however, he stated no American colluded with the Russians.
Mueller’s reasoning means probe was ‘a fool’s errand’
Fox News analyst Brit Hume said he didn’t hear Mueller say anything that isn’t in the report.
But Mueller’s contention that he couldn’t make a determination on obstruction because a sitting president can’t be indicted didn’t make sense.
“If this is the guiding policy, that would mean that if Mueller had found collusion, coordination, conspiracy, he wouldn’t have been able to say that either,” Hume said.
That means, he said, that “from the beginning, if there was anything found, he was on a fool’s errand.”
“He was setting out to do an investigation about which on neither major matter involving the president could he reach a conclusion,” said Hume.
“So I think we can see that there is something faulty in his argument,” he added. “But it is going to be picked up and cited as evidence that ‘there was obstruction, you see, and only Justice Department guidelines prevented Mueller from reaching that conclusion.'”
Gingrich: ‘They didn’t find it’
Newt Gingrich, who served as House speaker during Ken Starr’s investigation, which led to the impeachment of President Bill Clinton, noted to Fox News that Starr’s independent counsel understood that its task simply was to determine whether or not there was a case.
Starr’s report used the term “guilty” in reference to Clinton, concluding the president was guilty on 11 counts, he noted. And six were regarding obstruction of justice.
“It wasn’t complicated. He didn’t say, we have to indict. He just said, ‘You asked me to report. Here’s my report. He’s guilty. He did these things.'”
Gingrich said that if Mueller had used the word “guilty” once, “we’d be in a different world.”
“But Mueller wrote this convoluted, complex, two entire chapters, and doesn’t conclude anything that is dispositive,” the former congressman said.
“He didn’t come out and say Trump is guilty of anything.”
Gingrich was asked to comment on Mueller saying Wednesday that there was “insufficient evidence” of Russian collusion.
“Come on. Give me a break,” he replied. “They interviewed 500 people. They spent millions and millions of dollars. They put several people in solitary confinement for lengths of time, which frankly should be unAmerican.
“They didn’t find it,” he said. “What are they complaining about?”
Gingrich added that Mueller’s team “had all the resources; they had a bunch of smart, left-wing lawyers, all of whom disliked Trump.”
“They went all out, and they didn’t get anything,” he said. “At some point in the hunt, you’ve got to decide there’s no deer in the forest.”
He pointed out that under the American system of justice, “in the absence of proof,” a person is innocent.
“And therefore Trump is innocent,” he said.
Rush to judgment
Meanwhile, House Judiciary Chairman Jerrold Nadler, D-N.Y., reacted to Mueller’s remarks Wednesday, saying the Constitution “points to Congress to take action to hold the President accountable.”
“Although Department of Justice policy prevented the Special Counsel from bringing criminal charges against the President, the Special Counsel has clearly demonstrated that President Trump is lying about the Special Counsel’s findings, lying about the testimony of key witnesses in the Special Counsel’s report, and is lying in saying that the Special Counsel found no obstruction and no collusion,” Nadler said.
Reacting to the statement, former New York City Mayor Rudy Giuliani, who serves as President Trump’s personal lawyer, said Nadler is disqualified to lead such an investigation because he already has reached a conclusion.
McCarthy commented that, nevertheless, the launching of impeachment proceedings is “much more likely today at this moment than it was an hour ago.”
“I think [Mueller] made it clear today that that was what his idea was — a road map for impeachment,” said McCarthy. “Here it is (Congress), you run with it.”