On Page 2 of Volume II (PDF), Mueller writes:

Third, we considered whether to evaluate the conduct we investigated under the Justice Manual standards governing prosecution and declination decisions, but we determined not to apply an approach that could potentially result in a judgment that the President committed crimes. The threshold step under the Justice Manual standards is to assess whether a person's conduct "constitutes a federal offense." U.S. Dep't of Justice, Justice Manual § 9-27.220 (2018) (Justice Manual). Fairness concerns counseled against potentially reaching that judgment when no charges can be brought. The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrong accused can use that process to seek to clear his name. In contrast, a prosecutor's judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.

(bolding added)

Doesn't this clearly state that Mueller's team made a conscious decision to NOT to evaluate "conduct" that might lead to an indictment of the President?


Yes, but. Mueller made it crystal clear that he abided by the Department of Justice policy that a sitting president cannot be indicted -- or at least should not, because it basically gets in the way of running the country. That being said, take a look at footnote #1,091, which essentially invites to indict Trump once he's no longer in office.

The text in footnote 1091 on page 178 of the second volume reads:

A possible remedy through impeachment for abuses of power would not substitute for potential criminal liability after a President leaves office. Impeachment would remove a President from office, but would not address the underlying culpability of the conduct or serve the usual purposes of the criminal law. Indeed, the Impeachment Judgment Clause recognizes that criminal law plays an independent role in addressing an official’s conduct, distinct from the political remedy of impeachment. See U.S. CONST. ART. I, § 3, cl. 7. Impeachment is also a drastic and rarely invoked remedy, and Congress is not restricted to relying only on impeachment, rather than making criminal law applicable to a former President, as OLC has recognized. A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. at 255 (“Recognizing an immunity from prosecution for a sitting President would not preclude such prosecution once the President’s term is over or he is otherwise removed from office by resignation or impeachment. ”).

Also, there's a nugget on page 8 of volume II:

if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state.

Edit: To reply to Fizz' and BobE's comments below. Rachel Maddow's April 18 and 19 episodes are interesting and instructive, as are a number of other sources, like Vox (e.g. their last The Weeds podcast and a few articles of them on the topic).

What Mueller's team did is basically say is that they cannot make a determination because of DOJ policy. This article from the Washington Post might be one of the best I read on the topic in that it spells out where the legal disagreement between Barr and Mueller resides, and explains how the latter went to great lengths to rebuke the former in his report, while letting the determination on Barr's end for political face keeping reasons. (Essentially, Barr would have overridden the decision had Mueller indicted Trump.)

Mueller's team basically deferred to Congress about the proper remedy (i.e. impeachment), and spelt out very precise descriptions that are indictments in all but form, in the name of making sure the record is kept. They also raised that a sitting president can be indicted after they no longer hold office, and investigated until then. And they raised to boot that had the president been innocent they would have exonerated him. To paraphrase Maddow's last episode (Apr 19), he basically served future prosectors a roadmap to land Trump in legal hell and likely jail (unless Trump does something until them.)

  • I took the liberty of adding the note you refer to, it was a bit ambiguous as there's another footnote 1091 in the first volume that wasn't as interesting. ;) – JJJ Apr 20 at 18:04
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    @Fizz I interpret his statement to mean the latter, that he investigated conduct and then declined to evaluate that conduct (as it pertained to the president) that might lead to an indictment (by Mueller) of the president. In other words the mueller team stopped short (with respect to the president) in the process that would lead to a decision indict or not indict. IANAProsecutor, but I would anticipate the process to be: investigate to find facts of conduct, evaluate that conduct with respect to ability to indict, decide whether to actually indict. 3 steps, Mueller stopped at step 1. – BobE Apr 21 at 12:26
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    @BobE: I think Mueller also did quite a bit of your step 2 "evaluate that conduct with respect to ability to indict". See the latter part of my answer where Mueller discussed what falls under the legal remit of (attempted) obstruction of justice and what doesn't when it comes to presidential acts. Perhaps his analysis (of facts) isn't as detailed as it would have been had he been able to actually indict; it's harder to know that counterfactual. – Fizz Apr 21 at 19:02
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    @ Fizz- Mueller's words: "We considered whether to evaluate the conduct ..., but we determined not to apply an approach that could potentially result in a judgment that the President committed crimes." Means to me: ' We did not evaluate the results of the investigation lest it lead to our judgement that the president committed crimes'. To that extent, it appears that Mueller chose to stop short of process, b/c it could lead to his office being bound (by duty) to seek an indictment from a grand jury. – BobE Apr 22 at 2:50
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    @FrankCedeno: I'm struggling to understand why you'd want to point the finger at the media. It's black on white in the report... Also, what you write is mischaracterizing what's in it. The report basically goes: look, we're not allowed to call a cat a cat. If we were sure it wasn't one, we'd say so, and we're adamant that we can't say it's not one. Also, here's a laundry list of activities that would have landed anyone else in jail, so Congress can decide what to do next. And don't forget that you can prosecute once he's out of office. – Denis de Bernardy Apr 22 at 12:19

Mueller wasn't as hamstrung as you suggest. The fact that he detailed (at least) 10 probable obstruction of justice causes against Trump means obviously he did look into indictable offenses, even if he himself could not indict the president (following the DOJ doctrine that a sitting president may not be indicted).

Most of the legal and journalistic opinion I've seen interprets Mueller's report as passing the buck to Congress for acting on those findings, especially based on the quote that JJJ gave in his own anwer. See e.g. The Atlantic "The Mueller Report Is an Impeachment Referral " or Vox quoting Miriam Baer, law professor, Brooklyn Law School: "President Trump’s supporters can call it an exoneration, but his opponents may well view it as a road map for impeachment."

The fact that Mueller suggested that Trump might even be criminally prosecuted after leaving office (in the quote JJJ added to Denis' answer) is the icing on the cake so to speak.

And if that's not enough, Mueller report also discusses whether attempted obstruction is indictable, and concludes that it is. This is quite relevant because Mueller concluded that in a lot of the probable causes his report discusses, Trump tried to do something usually by requesting or instructing his underlings, but often enough they refused to follow through. The report summarized that as:

The President's efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests[.]

Mueller's report also dedicates quite some space (23 pages) to refuting the idea (advanced by Giuliani and Dershowitz of Trump's legal team) that a sitting president cannot obstruct justice in any acts related to the exercise of his constitutional powers. Mueller's conclusion in that regard is that:

A preclusion of ‘corrupt’ official action is not a major intrusion on Article II powers. [...] For example, the proper supervision of criminal law does not demand freedom for the President to act with the intention of shielding himself from criminal punishment, avoiding financial liability, or preventing personal embarrassment.

You can probably see now why an attorney called the Mueller report "an indictment in all but the formalities." Not only does the report cover some probable causes, but it also contains legal theory arguments why those causes would be indictable. Ultimately however, in Mueller's view, the sitting president not being indictable according to DOJ doctrine trumps those other considerations. But this is quite different from just asserting the non-indictable sitting-president issue and not bothering with any further investigation.

  • And the cherry on top of the icing, from Politico: "Mueller can take credit for spawning significant parts of SDNY’s work. The two DOJ units have shared staff, witnesses and leads, and SDNY has been well-positioned to pick up anything that is outside Mueller’s primary lane of investigating collusion between the Trump campaign and Russia." – JJJ Apr 20 at 22:40
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    Mueller knew going in the DOJ policy, as did Rosenstein who appointed Mueller. And Mueller did investigate and very likely did a credible job. Mueller also successfully sought the indictment of several persons. However he did not seek and indictment of the president, despite evidence that would, under non-presidential conditions, permit him to do so. But for the policy! Relative to a potential presidential indictment, the policy hamstrung Mueller. That seems clear to me. Yes, Mueller can take credit for many things, but he was "required" to stay away from a presidential indictment. – BobE Apr 21 at 3:27

Doesn't this clearly state that Mueller's team made a conscious decision to NOT to evaluate "conduct" that might lead to an indictment of the President?

What the bolded statement says is that the conduct shall not be judged by the investigation, whereas you are asking whether conduct was evaluated.

The difficulty with the investigation, from the beginning, is that the alleged acts do not leave behind immediate evidence that a crime has actually been committed in the first place. There is no body, no payload of contraband, and no missing money. In a case like this one, the existence of a prosecutable offense depends on the exact timeline of events. Establishing motive depends on the investigation having evidence of what the subject knew, and when they knew it. Establishing commission of an offense similarly depends of knowledge of minute details - what was said, to whom and when.

This investigation seems to have 'evaluated' all of that in detail, per the question you have asked. Means, motive, opportunity, and in many cases an action or attempt at action has been thoroughly documented.

The details of the investigation are now in the hands of Justice and Congress. A judgement may yet be made - like any investigating officer for any policing force, the system works better if the investigator and the judge aren't on the same payroll. The two real differences between this and any other investigation are 1) the detective can't file the charges and 2) the prosecutor deciding whether or not to pursue the charges is Congress.

  • Perhaps you misread the bolded, the word "judged" does not appear. – BobE Apr 25 at 22:22
  • @BobE, you aren't wrong, however "but we determined not to apply an approach that could potentially result in a judgment that the President committed crimes" clearly contains judgement. In a normal investigation, the investigator has discretion to make this judgement, insofar as he can file charges. Here, only Congress can make that determination - Mueller's job would normally go farther than fact finding and timeline, and it did wherever he had evidence that anyone else committed an offense. – Sean Boddy Apr 26 at 16:52

Doesn't this clearly state that Mueller's team made a conscious decision to NOT to evaluate "conduct" that might lead to an indictment of the President?

Yes, it does. Page 8 (page 220 in the pdf) of the second volume contains the following lines (just before the conclusion heading):

Finally, we concluded that in the rare case in which a criminal investigation of the President’s conduct is justified, inquiries to determine whether the President acted for a corrupt motive should not impermissibly chill his performance of his constitutionally assigned duties. The conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.

I (and some American media outlets, e.g. Vox) interpret that as saying Congress should be the one to determine whether to bring criminal charges. The second volume goes into much more detail, for example under the Legal Defenses To The Application Of Obstruction-Of-Justice Statutes To The President heading starting on page 159 of the second volume.

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