Thread by @marty_lederman

1/ It shouldn't have "surprised" anyone, let alone "everyone," that Mueller declined to opine on whether Trump committed obstruction statutes--even though Mueller's report, fairly read, makes it crystal clear that Trump did so.

@DevlinBarrett @mattzap

washingtonpost.com/world/national…

2/ In the Post itself last month, I explained that if one accepts the *rationale* of the 2000 OLC opinion, which Mueller had to do, then a fortiori a prosecutor shouldn't do what the Constitution prohibits the grand jury from doing--namely, ...

washingtonpost.com/opinions/2019/…

3/ --allege crimes against a POTUS while he sits.

Mueller explains precisely that in his report (Vo. II, p.2)--and I think he was right to do so. Moreover, as I elaborated on @just_security, ...

justsecurity.org/63275/why-its-…

4/ ... even if Mueller privately concluded (as he most surely did) that there was proof beyond a reasonable doubt that Trump broke the law, there'd be no good justification for him saying so. I wrote:

5/ "Barr is likely to conclude that Congress has no compelling need to know whether DOJ will ask a grand jury to indict Trump, or even to know whether Mueller believes that Trump’s conduct did or did not amount to any criminal offenses. ...

6/ Of course Congress might have good reason, in its oversight and/or impeachment capacities, to take into account the details of Trump’s conduct, which the Barr notification ought to describe [and which of course the Mueller Report does describe, in extraordinary detail]. ...

7/ ... But even for the (hypothetical) purposes of impeachment, it shouldn’t matter much whether or not a prosecutor thinks Trump has violated criminal statutes: The conduct either describes high crimes or misdemeanors or it doesn’t, ...

8/ ... and it either warrants removal from office or it doesn’t–-but those questions do not depend upon whether Trump has also committed any offenses under Title 18 of the U.S. Code."

9/ Of course, the question of whether there's proof beyond a reasonable doubt that Trump violated the law *would* matter for purposes of deciding whether to ask a grand jury to indict hm *after* he leaves office. And Barr's conclusion that there's not such sufficient evidence ...

10/ ... is obviously nonsense, which any fair reader of the report would see. Even if the next AG concludes--as he or she almost certainly would--that Barr's wrong, it's doubtful Trump will ever be indicted, if only because *any* AG would be deeply reluctant ...

11/ ... to establish a precedent of asking a lay jury to adjudicate a President's motives in the exercise of his office. And that's all the more reason Mueller was right not to add an express conclusion about whether Trump committed a crime: No practical consequence ...

12/ ... turns on Mueller's view of that question. What the *facts themselves* in Mueller's report do show, however, is far more consequential than the relatively unimportant matter of whether Trump committed an obstruction offense--they demonstrate beyond peradventure ...

13/ ... that Trump egregiously violated his constitutional oath and Take Care duty, and that he's run roughshod, virtually every day for more than two years, over vitally important and long-established norms and protocols that prevent Presidents from interfering with ...

14/ ... or trying to influence criminal investigations. His baseless and outrageous attacks on DOJ and the FBI, and his efforts to undermine their crucial functions, *ought* to make it plain that he's unqualified to hold his office, ...

15/ ... and any serious, self-respecting AG wouldn't stand for such conduct, would sharply condemn it, and would defend the integrity of Mueller, Wray, the Bureau, DOJ, et al. Instead, Barr chose to make a pitiful effort to claim that the POTUS's outrageous conduct was justified.

16/ ERRATA: I was wrong to say above that no "practical" consequence would've flowed from a Mueller declaration that Trump broke the law--indeed, the practical consequences are the basis, rightly or wrongly, for the OLC analysis. I shoulda wrote: no *legal* decisions turn on it.