How does Special Counsel Robert Mueller’s public statement change the impeachment question? Not very much. He confirmed what we already knew from his report:

  1. If he had been confident that President Trump did not commit the crime of obstructing justice, he would have said so.
  2. He didn’t consider bringing charges against Trump because under longstanding Department of Justice policy, it is unconstitutional to file criminal charges against a sitting President.
  3. The proper way to hold the Trump accountable for his conduct is either through criminal charges after he leaves office or the impeachment process while he still holds office.

Does the Mueller Report justify impeachment?

While there is enough evidence from the Mueller investigation to justify obstruction of justice charges, the case for impeachment is weaker. As I wrote last month, Mueller’s report provided a mixed picture. There were serious efforts by Trump to obstruct, but they were accompanied by significant efforts to facilitate the Mueller investigation, as when Trump turned over requested documents and made aides available for interviews, without invoking executive privilege. This is an important distinction with the Nixon impeachment. Overall, there was more desire to obstruct than actual obstruction.

Still, this doesn’t mean impeachment is out of the picture. There are other serious concerns about the President’s conduct, including concerns about the influence of his personal financial interests on his policy decisions. As Speaker Nancy Pelosi has observed, the decision whether to impeach can be made once further investigation into Trump’s other conduct has progressed.

Photo of David Orentlicher David Orentlicher

David Orentlicher is the Cobeaga Law Firm Professor of Law at UNLV William S. Boyd School of Law. Nationally recognized for his expertise in constitutional law and health law, Dr. O has testified before Congress, had his scholarship cited by the U.S. Supreme…

David Orentlicher is the Cobeaga Law Firm Professor of Law at UNLV William S. Boyd School of Law. Nationally recognized for his expertise in constitutional law and health law, Dr. O has testified before Congress, had his scholarship cited by the U.S. Supreme Court, and has served on many national, state, and local commissions.

A graduate of Harvard Medical School and Harvard Law School, Dr. O is author of numerous books, articles, and essays on a wide range of topics, including presidential power, affirmative action, health care reform, physician aid in dying, and reproductive decisions. Dr. O’s work has appeared in leading professional journals, as well as in the New York Times, Time, USA Today, CNN Opinion, the Chicago Tribune, and other major newspapers.

Between 2002 and 2008, Dr. O served in the Indiana House of Representatives, where he authored legislation to promote job creation, protect children from abuse and neglect, and make health care coverage more affordable. His most recent book, Two Presidents Are Better Than One: The Case for a Bipartisan Executive, draws on his experience with partisan conflict as an elected official and his expertise in constitutional law to discuss reforms that would address the country’s high levels of political polarization.

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