Thread by @SethAbramson

(THREAD) In response to my 100 questions Congress should ask Mueller—see my pinned tweet—I got a note from a Congressional representative asking me to discuss the OLC memo re: indicting a POTUS. What follows is a summary of my reply. I hope you'll RETWEET this to spread the word.

1/ The now-infamous Watergate-era OLC (DOJ) memo was bolstered in 2000 when it was repeated, cited and effectively adopted by another OLC memo in that year. The upshot: it says you can't indict a sitting president because doing so might distract him/her from a president's duties.

2/ The problem is that SCOTUS has ruled you *can* distract (as it were) a president for many types of legal proceedings. Nixon was ordered to produce physical evidence; Clinton lost unanimously when he tried to avoid having to give testimonial evidence himself. But there's more.

3/ Trump's handpicked Attorney General, Bill Barr, recently said in a TV interview that—physical/testimonial evidence aside—the DOJ can *and should* issue *public charging decisions* when they believe a president may have committed a crime. He chastised Mueller for not doing so.

4/ So the "don't distract the POTUS" narrative seems faded: you can make a POTUS produce physical evidence, make a POTUS testify, publicly state an intent to charge... the only question is if you can *try* him/her. So why Mueller didn't even subpoena him for testimony is unclear.

5/ I'm putting aside here the *factual* record Trump has produced: hundreds of days spent playing golf and lounging at his personal properties, *plus*—more troublingly—getting caught lying on his official White House Schedule regarding how much time he spends working in the Oval.

6/ While *public*, FOIA-eligible schedules released to media and voters *falsely* stated that Trump was in the Oval Office for three hours daily, in fact the *private* schedules revealed he was on "Executive Time" in the residence chatting with friends. axios.com/donald-trump-p…

7/ So one imagines the factual record produced in any suit claiming Trump "has no time" to deal with legal proceedings would be borderline hilarious: a serious of profound misrepresentations by Trump's attorneys to various federal courts that would be deserving of bar discipline.

8/ So when/as Mueller got legal advice—as he would've—that Trump could definitely be subpoenaed, and when/as he was told by Barr—as he *should've* been—that he *needed* to make a charging decision, the call to subpoena Trump should've been *easy* to make. The call was never made.

9/ This is an example of why Democrats can't *exclusively* approach Mueller with kid gloves. It's fair to say—without impugning his credibility/honor whatsoever—that he did make mistakes, and that some of the mistakes are *explicable* to most criminal attorneys and investigators.

10/ Even if Mueller felt interviewing Trump under subpoena—as SCOTUS would likely have allowed him to do (and if you've read Trump's written responses, you know why *any* investigator would've wanted it)—would've consumed Trump's time, *recommending charges* would've taken none.

11/ Indeed, one of the surest signs of Barr's bad faith and Mueller's (not ill-intended) negligence—to me—is that Barr never told Mueller to make a charging decision before or after Mueller sent DOJ his report and Mueller never asked to do so before or after that submission. Why?

12/ Many legal scholars say that you can certainly *charge*, but perhaps can't *try*, a POTUS while he's in office. Mueller's claim is that this would be unfair, and it's his basic explanation for why he didn't take investigative actions that might've led to a charging decision.

13/ Here too we have a problem. Why not litigate the issue? Or offer POTUS an accommodation? (For instance, recommend DOJ charge him but then state—concurrently—that DOJ should offer the option of an agreed-upon trial continuance if the POTUS deems trial would affect his duties?)

14/ Or—consistent with the Constitution—Mueller could've recommended charges and then referred that recommendation to the House Judiciary Committee to be handled as an impeachment matter. No one can explain why that didn't happen—and Mueller *needs* to explain it to Congress now.

15/ The point is, there's no evidence Mueller deliberated on *any* of this, or spoke to Barr about *any* of this, and—far worse—it seems clear he allowed his faulty legal determination to *poison the investigative process itself*, wrongly saving the president from oral testimony.

16/ The result: Mueller got testimony from Trump that was—by his own concession in his report—*basically unusable*, an unforgivable sin for a criminal attorney and/or investigator when you gave others plea deals (Flynn, Manafort, Gates) to try to corner *this* particular witness.

17/ There was *also* curiosity coming from Congress about whether it mattered if Trump had committed the offenses *before* his presidency (e.g. the federal felonies in SDNY for which he remains an unindicted co-conspirator) or after (all of the obstruction evidence, for example).

18/ The answer is a qualified "no." The OLC's concern was a case affecting presidential duties, so it's not clear that when a crime was committed is relevant *if* a special counsel decides (though I'm unclear about whether he absolutely *must*) that he is bound by an OLC opinion.

19/ Couldn't a special counsel say, "Look, DOJ brought me on to *avoid* having Main Justice render *any* legal or investigative or factual or prosecutorial judgments about a given case, so I'm going to receive my *own* counsel about charging a suspect for whom DOJ is conflicted"?

20/ Even putting that aside, the *other* reason the timing of a president's crime *could* still be important is this: what if the very nature of the crime implicates *whether the president can serve in the office at all*? What if the case is, say, something like a bribery charge?

21/ The Constitution explicitly says a POTUS can be impeached for "Bribery," enumerating that specific offense almost certainly because it implicates either (a) how a president gained office, and/or (b) whether he can faithfully execute his Oath of Office after he's been elected.

22/ But the Constitution thereby creates a thorny chicken-and-egg problem: how can Congress begin impeaching a president for "Bribery" if there's been no preliminary finding that "Bribery" is indeed the statutory issue that Congress is about to take a look at? Who decides *that*?

23/ The answer is that Congress created the idea of an "impeachment inquiry" as a way of determining, *before* initiating an impeachment vote or trial, whether it was/is dealing with a constitutionally enumerated impeachable offense. So what does this impeachment inquiry involve?

24/ Well, here's the crazy part: per Mueller himself, that process—if not by that name—*involves DOJ* (and in this case, him specifically). Indeed, his report says that his role was to preserve evidence for future proceedings and issue preliminary findings for others to take up.

25/ Mueller's position makes a good deal of sense, given that federal law enforcement—and all its human, financial, administrative, and logistical investigative resources—resides in the executive branch, and the special counsel rule allows for an independent DOJ probe of a POTUS.

26/ Perhaps you see where I'm going with this: the constitutional process I just described *fully breaks down* if the special counsel is blocked from: (a) free rein to pursue the facts, (b) a full investigation of those facts, and (c) the ability to recommend charges to Congress.

27/ First, Mueller approached his *scope* in an outrageously constrained way: receiving evidence of bribery, aiding/abetting, money laundering, RICO, wire and bank fraud, and other offenses but *ignoring it* in favor of looking at a narrow—unlikely—Trump-IRA/Trump-GRU conspiracy.

28/ Next, Mueller handcuffed his already far-too-narrow—not fully evidence-pursuing—probe by refusing to interview Trump's family and declining to subpoena Trump himself. *Then*, he could've issued a charging decision but *didn't*. The result: he broke our constitutional process.

29/ So the Congress has every right to either say to Mueller "you didn't complete your work" *or* "you left so much work on our plate that was supposed to be on yours that you must make yourself and your case file fully available to us from this point onward, no questions asked."

30/ While Bribery is in play here—re: Trump Tower Moscow and other prospective Russian business Trump insisted on secretly conducting as a candidate, as well as a host of shady pre-/post-election Middle East dealings—so too are SDNY charges that affect his eligibility for office.

31/ The factual record suggests *everyone* believed Trump's "woman problem" could cost him the election—he believed it; his staff believed it; the RNC believed it; GOP leadership believed it—and he's an un-indicted co-conspirator in federal crimes committed to end that "problem."

32/ So if OLC was worried only about a POTUS's time, and if the Constitution was worried about whether a POTUS committed crimes implicating his ability to serve, even Mueller dishing off the SDNY case—and SDNY not indicting Trump—is a huge dereliction of an executive-branch duty.

33/ So as Congress prepares to question Mueller, some analysts say, "Just use him to walk through Vol. 2 of his report!"—but the fact is that there are *major* questions about whether the Mueller investigation was properly conducted from the outset. Those questions must be asked.

34/ I say all this and haven't even *mentioned* yet that Mueller effectively hid from Congress and America the *equally urgent* counterintelligence components of his investigation—by passing them all off to a USIC apparatus that promptly refused to tell anyone what Mueller found.

35/ Moreover, even the exceedingly narrow Vol. 1 (non-obstruction) investigation Mueller *did* conduct has holes in it you could drive an eighteen-wheeler through, starting with the inexplicable plea deals he offered Manafort, Flynn, and Gates to *no apparent purpose whatsoever*.

36/ Most responsible lawyers, asked why Manafort's actions didn't constitute a conspiracy to commit fraud against the United States, can't answer—because they think they did. The same goes with Trump Jr.'s involvement in a conspiracy to solicit illegal foreign campaign donations.

37/ The inexplicable threatening of an indictment—then non-indictment—of Jerome Corsi may have prevented disclosure of another conspiracy centered on Stone, Corsi, Malloch, Assange, Manafort and others, while not subpoenaing Trump defanged the whole investigation and permanently.

38/ The final query directed at me from Congress involved whether the "meeting of the minds" required in a criminal conspiracy must be explicit, to which I answered that—yes—it pretty much needs to be an unambiguous agreement, though it doesn't by any means have to be in writing.

39/ I added that anyone who knows the facts of the Manafort-Gates-Kilimnik conspiracy will have no doubt whatsoever that a meeting of the minds existed to facilitate what was by then known to be a massive and systemic Russian interference campaign—via proprietary data and advice.

40/ The same goes for Don Jr., whose concealment of his actions clearly establishes knowledge that they were illicit. And Mueller questioning the constitutionality of the relevant statute was beyond his purview—*especially* given the other powers he declined to accrue to himself.

CONCLUSION/ The 1970s OLC opinion (arguably "refreshed" in 2000) that appears to have *wrongly changed the course of U.S. history* is a topic of questioning that poses a major threat to Mueller and the way Congress and America can and should receive his entire investigation. /end