The Divider: Trump in the White House, 2017-2021

by Peter Baker

The case against Trump for trying to hinder the investigation was far different. The prosecutors thought they had rock-solid evidence of obstruction of justice. There was no question in their minds that the president sought to thwart investigators and if anything was saved only by advisers like Don McGahn who refused to go along. But the Justice Department’s long-standing policy, formulated under one president facing impeachment (Richard Nixon) and reaffirmed under another (Bill Clinton), held that a sitting president could not be indicted for a crime while in office. Although that opinion was hotly debated and had never been tested in court, Mueller under special counsel regulations was bound by it. But Mueller took it one step further: if he could not indict Trump, he told his staff, then he should not even state in his report that the president had violated the law because Trump would have no opportunity to defend himself in court. That, in Mueller’s mind, deprived him of basic due process. And so even though Mueller’s team identified ten potential counts of obstruction, the special counsel ordered his staff not to make a straightforward declaration that those acts constituted crimes. This logic once again drew protests from Andrew Weissmann and other prosecutors, who thought that let the president off the hook.