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Legally, Mueller’s interpretation of the OLC guidance is absurd. A prosecutor has only one job: to determine whether there is sufficient evidence to prove guilt beyond a reasonable doubt.
This is elucidated by federal regulations: The special counsel must prepare “a confidential report explaining the prosecution or declination decisions.” There is no third way.
There is no authorization to evade what Mueller’s transgressive staff described as the “traditional,” “binary” prosecutorial decision to charge or not to charge.
The regs design the special counsel to be an ordinary federal prosecutor. When I was a line prosecutor, my boss was the district U.S. attorney. Analogously, the special counsel is a line prosecutor whose boss is the attorney general.
My job was to investigate cases and make a recommendation to my chain of command to indict or decline prosecution. Mueller’s job was to make that same recommendation to the AG.
If Mueller had found sufficient evidence to file charges, it would then have been up to the AG to decide (a) whether to accept that recommendation and (b) whether to delay indictment until the president left office, in accordance with the OLC guidance.
That is to say: The OLC guidance on the timing of an indictment has nothing to do with whether there is a prosecutable case. There is no justification for freighting the charging decision with the timing issue.
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