Dispelling the NYT’s “The Daily” Podcast’s Misconceptions about Mueller’s Options

Several common misunderstandings about Robert Mueller’s legal options were on display in the most recent New York Times’s podcast “The Daily.” The host of the show, Michael Barbaro, interviewed one of the great NYT reporters Michael Schmidt in a piece titled, “Does Mueller Have a Plan for Trump?” The question they addressed, more specifically, was what Mueller could do if he finds the president engaged in criminal wrongdoing. There were several points in the conversation between the two where claims about the law made, well, the lawyer in me flinch.

I am an avid listener and admirer of the podcast series and of Schmidt’s extraordinary reporting in this space. So, I was especially disappointed by what I heard. But that’s no matter here. What matters are the myths and misconceptions about the law concerning Mueller’s options. Unpacking those errors is a valuable exercise because such misunderstandings are, indeed, quite common among commentators and in public discourse. Indeed, I have heard some of these same mistakes made by commentators on cable news over the past few days. And I fear those errors about what the law says start to reproduce themselves—once in circulation and recirculation they can easily misdirect even the finest reporters.

So let’s get to unpacking…

Myth 1: The Justice Department’s position on whether a sitting President can be indicted is mere “policy”

Schmidt mis-describes the Justice Department position when he says:

“Where’s the tipping point on this policy? If the president was to do something extreme in the moment, like the example you laid out, would the Justice Department feel the need to allow charges against the president to move forward.  And that is why it’s a policy – it’s not law – it’s not like the Constitution says, ‘The president can’t be charged.’  That’s not in the Constitution; this is an interpretation of the Constitution, the way the Justice Department has tried to figure out how it deals with the unusual standing of the President of the United States….”

Friendly correction: The position of the Justice Department is based on two legal opinions issued by the Office of the Legal Counsel (in 1973 and reaffirmed in 2000). It is not mere policy, but a statement of what the U.S. Constitution requires. According to the OLC, the Constitution forbids indicting a sitting President. Full stop. Although it is not explicitly stated in the text of the Constitution, according to the OLC, it is required by the Constitution’s structure and consistent with Supreme Court precedent. So this is not a mere policy that can come and go with the political wind, or that the Justice Department could decide to change because it “feel[s] the need to allow charges.” The Constitution categorically forbids such action, according to the OLC. One can get into finer debates about how much OLC constitutional interpretations are driven by policy interests, under what conditions an OLC can and will overrule a prior legal opinion issued by the office, and the bindingness of OLC opinions on the president and on independent prosecutors and special counsels.  But relegating the OLC memos to the realm of “policy”- “not law”—or boiling it down to just policy choice can be misleading.

As an aside: My own view and that of many other legal experts is that the OLC’s interpretation of the Constitution is wrong on the question of whether a sitting President can be indicted.

Myth 2: If the President is immune from indictment, he no longer has to worry about criminal exposure

In discussing why Mueller would tell Trump’s lawyers that the president is immune from indictment, Schmidt says: “If the president knows, ‘look I’m not gonna have criminal exposure on this,’ maybe that assuages him.”

Friendly correction: Even if a sitting president is immune from indictment, the overwhelming consensus among legal experts is that he can be indicted and prosecuted once he leaves office. Even the OLC opinions agree on this point.  In other words, if the president is immune from indictment, it is a temporary immunity that lasts only as long as he is still president. The OLC also recognized that courts could apply “equitable tolling” so the statute of limitations for any offence will not be affected by the period of time in which the president was immune. In short, the president could still have significant criminal exposure even if he is immune from prosecution while in office.

Myth 3: Mueller clearly has the option of naming Trump as an unindicted co-conspirator

In answer to the question of what options Mueller has if he believes the President committed a crime, Schmidt says without equivocation: “The other option Mueller has is to do what was done under Nixon, which was to make the President an unindicted co-conspirator. …  [T]here is nothing that prohibits it.”

Friendly correction: There is a need for equivocation in answer to this question, because the law and legal opinions on this topic are not so settled. Indeed, in some respects the question whether a sitting president can be named as an unindicted co-conspirator raises some of the same thorny constitutional questions about whether a sitting president is immune from criminal process. I am on one side of that debate. Having worked through the different arguments, I wrote a piece titled, “Mueller Has Authority to Name President Trump as an ‘Unindicted Coconspirator.’” But for the other perspective on this question, I recommend reading my colleague James Jacob’s essay, “Naming the President as an Unindicted Co-conspirator?”

At one level this is a fairly modest correction to what Schmidt said, but in other respects it can wholly redefine how you think about the probabilities and risks involved if Mueller pursues this avenue.

Also, in an interesting way Myths 1 and 2 interact with one another. In discussing the circumstances in which Mueller might decide to name Trump as an unindicted co-conspirator, Barbaro and Schmidt agree it could happen because “that person is the President of the United States and there is a policy on the books of not charging him with a crime.” It may, however, be more difficult to justify naming a person as an unindicted co-conspirator because of a mere policy, and there is perhaps clearer support for naming a person as an unindicted co-conspirator if the individual is constitutionally immune such that their indictment is categorically foreclosed.

[As an aside: It may also be worth adding another potential option to the equation. Alex Whiting and I also explored a separate possibility from the Watergate era, “An Untold Option for Mueller: Grand Jury “Presentment” as an Alternative to Indicting Trump.”  ]

Myth 4: The only way Mueller’s final report goes to Congress is if Rosenstein voluntarily agrees to do so

Addressing the question whether Mueller could send his final report to Congress, Schmidt said: “It has to go through the person overseeing the investigation—in this case, Rod Rosenstein. Rosenstein makes a decision about what goes to Congress and what doesn’t. And that is why the question of who is overseeing the investigation is so important, because whatever Mueller finds has to go through the pipe, the person, the in-between of who’s overseeing it at the Justice Department.”

Friendly correction: Schmidt’s description is correct in terms of the option available to Mueller under the special counsel regulations. However, that’s not the only avenue for getting the report to Congress and the public. There are two other avenues for making Mueller’s report public: (1) a public/confidential disclosure of evidence to Congress via a congressional subpoena; and (2) a public report out of the grand jury using a special procedural device. Alex Whiting and I discussed both of those options in a Just Security piece, “How Mueller Can Make the Grand Jury Report Public or Hand it to Congress.”

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Curing some of these myths can hopefully assist reporters and others. Knowing what the law basically says (and doesn’t say) and where the law is settled (or contested) is important, among other things, to assessing what incentives, motivations, and opportunities various actors have in this space. The legal background affects some of the most significant policy questions such as: Does the White House fear Mueller has options that could still put President Trump in personal legal jeopardy? Is Congress the first and last resort for accountability when it comes to any crimes committed by the President? Those were, in fact, some of the questions raised in The Daily podcast. I hope my brief intervention here can guide future conversations and reporting as the three-level chess game that is the Mueller investigation continues to play out. 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016) Follow him on Twitter @rgoodlaw.