A former Department of Justice appointee under former President Barack Obama said special counsel Robert Mueller “almost certainly won’t indict” President Donald Trump at the conclusion of his investigation.
Eric Columbus, former senior counsel to the deputy attorney general under Obama, explained on Twitter why we should not expect any criminal charges against Trump, despite a growing chorus of pundits and Democratic politicians predicting that Mueller is building an obstruction of justice case.
Mueller almost certainly won't indict Trump – not because it would be unconstitutional, but because Mueller's authority is very different from Ken Starr's was. I can explain. 1/https://t.co/BoZHbz0OFm
— Eric Columbus (@EricColumbus) January 26, 2018
As Columbus points out, the law guiding independent counsel Kenneth Starr that allowed him to indict then-President Bill Clinton Starr’s investigation into the Clinton during the 1990s had expired in 1999 “amidst concern that ICs had too much leeway,” he writes.
Mueller is a “special counsel,” the position that replaced independent counsels, out of concern that ICs had too much power, Columbus notes.
In other words, Mueller “is essentially the equivalent of a U.S. Attorney, except that his jurisdiction is defined by topic rather than geography,” wrote Columbus. Therefore, Mueller reports to deputy Attorney General Rod Rosenstein because Attorney General Jeff Sessions has recused himself.
Per the DOJ special counsel regulations, Mueller must abide by all DOJ "rules, regulations, procedures, practices and policies." (28 C.F.R. 600.7(a), if you're keeping score at home.) 9/
— Eric Columbus (@EricColumbus) January 26, 2018
This fact is significant for two reasons: For starters, Rosenstein can “veto any Mueller action he deems inappropriate or unwarranted,” and bringing a prosecution would “in the judgement of DOJ’s Office of Legal Counsel, would violate the Constitution,” Columbus argues. Nor can Mueller make an impeachment referral to Congress, per law.
Thus, if Mueller does believe the president has violated the law, he would collect this evidence in his report at the end of the investigation. The report would likely be made public and Congress could use the relevant information to determine if and how it proceeds.
