After Mueller gave his public statement about his investigation into the President, he made an interesting statement.

The statement: "And as set forth in the report, after that investigation, if we had had confidence that the president clearly did not commit a crime- we would have said so."

  • Conservatives took this as a clear indication that Mr. Trump did not obstruct justice because Mueller would've advised Congress to take necessary steps to charge the President (impeachment)
  • Liberals took this as a wink and a nod

The wink and the nod:

  • Mueller's investigation can't rule out if Trump did not commit the crime which means they can't for sure say that he didn't commit a crime.
  • Liberals think that Mueller was saying that he couldn't prosecute him because he is the sitting president, who can't be charged with a crime.
  • Therefore Democrats took this as a call for impeachment

But the Democratic base (Nancy Pelosi) didn't call for impeachment and in fact she is actually against it.

The question: What part of Mueller's report, public statements, or other actions suggest that he called on congress to impeach/further investigate?

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    I don't think this question is appropriate for this site. Nobody can possibly know for sure what Mueller meant by that statement, except Mueller himself. Any answer would be mostly opinion. – redleo85 May 30 '19 at 18:46
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    @redleo85 are you claiming the statement is purposefully ambiguous? If we work on the premise that Mueller chooses his words carefully then that would be an answer. If not, as I would argue, then the statement is unambiguously interpretabele. I don't think we've got to the point where we cannot say what words mean – JJ for Transparency and Monica May 30 '19 at 18:52
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    Are you sure that conservatives interpret that sentence as "as a clear indication that Mr. Trump did not obstruct justice"? Because that's not what the sentence says... They may very well believe that if Mueller did not advise congress to take steps (which isn't that clear either) means that he believes that Trump didn't obstruct justice, but that's unrelated to the given sentence. – tim May 30 '19 at 19:04
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    @redleo85 I think the question could be reformulated as "What part of Muellers report, public statements, or other actions suggest that he called on congress to impeach/further investigate?" – tim May 30 '19 at 19:07
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    Voting to reopen since Mueller's testimony before Congress is a source that does allow one to answer the question quite definitively. – JJ for Transparency and Monica Jul 26 '19 at 0:45

Assuming we interpret this question in the sense that tim suggested (in a comment), as the BBC paraphrased what Muller said yesterday:

He detailed 10 instances where Mr Trump had possibly attempted to impede the investigation, but said that charging the president with a crime was not an option for the special counsel.

"The Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing," he said, in what was seen as a reference to the ability of Congress to start an impeachment process.

He said that if his team had had confidence that Mr Trump "clearly did not commit a crime, we would have said so".

Mr Mueller said he did not believe it was "appropriate to speak further" about the investigation and that he would not provide any information that was not in his team's report.

So you will probably not find any more "wink and nod" statement than this from Mueller, i.e. he isn't going to tell Congress how to do its business.

Also since impeachment is a political process, there are good reasons not to go through with it, even if one thinks the president acted unlawfully. As CNN commented:

After Mueller's statement, Pelosi again decided to strike a center chord. She didn't call for impeachment proceedings to begin, but indicated such action may be necessary in the future depending on what House committees investigating potential obstruction of justice issues find. Polling shows that's likely the right move for now. [Based on polling] Voters seem most open to a path in which obstruction of justice is investigated, but not via an impeachment inquiry. [...]

Launching an impeachment inquiry not supported by the public is probably seen by her [Pelosi] as a risky maneuver that puts at risk the Democratic majority. At the same time, not investigating the President would anger the Democratic base.

I should also mention that Democrats in Congress are not the only ones who read between the lines Mueller favoring/suggesting impeachment. Dershowitz also did that:

Until today, I have defended Mueller against the accusations that he is a partisan. I did not believe that he personally favored either the Democrats or the Republicans, or had a point of view on whether President Trump should be impeached. But I have now changed my mind. By putting his thumb, indeed his elbow, on the scale of justice in favor of impeachment based on obstruction of justice, Mueller has revealed his partisan bias. He also has distorted the critical role of a prosecutor in our justice system.

Virtually everybody agrees that, in the normal case, a prosecutor should never go beyond publicly disclosing that there is insufficient evidence to indict. No responsible prosecutor should ever suggest that the subject of his investigation might indeed be guilty even if there was insufficient evidence or other reasons not to indict. Supporters of Mueller will argue that this is not an ordinary case, that he is not an ordinary prosecutor and that President Trump is not an ordinary subject of an investigation. They are wrong. The rules should not be any different.


No prosecutor should ever say or do anything for the purpose of helping one party or the other. I cannot imagine a plausible reason why Mueller went beyond his report and gratuitously suggested that President Trump might be guilty, except to help Democrats in Congress and to encourage impeachment talk and action. Shame on Mueller for abusing his position of trust and for allowing himself to be used for such partisan advantage.

So Dershowitz, who is on Trump's side, [also] says Mueller did basically "wink and nod" to Congress (in order to help Democrats, according to Dershowitz).

Also, the joint official statement from grovkin's answer (that there's "no conflict" between the DOJ and the Special Counsel) should be read narrowly; just this morning (after that joint statement, I think) Barr did say that:

"I personally felt he [Mueller] could've reached a decision. He could've reached a conclusion," Barr said.

The discrepancy between the Justice Department's leaders is over its long-standing legal opinion that forbids the indictment of a sitting president.

Mueller said on Wednesday that in his view, that policy meant he could never have considered the option of bringing criminal charges against Trump.

Barr, in excerpts of his CBS interview, said he concurred with respect to charges but said he thought Mueller nonetheless could have declared whether he believed they were necessary.

In other words, Barr is saying Mueller could have said that he believed Trump should be charged — if he thought so — without the ability to actually ask a grand jury for an indictment.

"The opinion says you cannot indict a president while he is in office. But he could've reached a decision as to whether it was criminal activity. But he had his reasons for not doing it, which he explained," Barr said.

Actually Barr did comment on the Congress "wink" as well saying

"Well, I am not sure what he [Mueller] was suggesting, but, you know, the Department of Justice doesn't use our powers of investigating crimes as an adjunct to Congress."

So, for Barr there's no clear "wink" in the Mueller report, but if there was one, it would be improper.

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    This quote from the report (page 8, second volume) seems like more than a wink: "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. ". – JJ for Transparency and Monica May 30 '19 at 19:47
  • @JJJ: that's a conditional. The report doesn't say that Trump engaged in a "corrupt exercise of the powers", as far as I can tell. The sentence you quoted is in the context of refuting statutory defenses. – SX welcomes ageist gossip May 30 '19 at 19:52
  • @Fizz Shouldn't that sentence then speak of "the President's alleged corrupt exercise..."? – Hagen von Eitzen May 30 '19 at 20:58
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    @HagenvonEitzen: probably not because it's not talking of a crime, it would be a political finding. The analysis starts with "With respect to whether the President can be found to have obstructed justice by exercising his powers under Article II of the Constitution, we concluded that Congress has authority to prohibit a President's corrupt use of his authority in order to protect the integrity of the administration of justice." See also npr.org/2019/05/30/728347129/… – SX welcomes ageist gossip May 30 '19 at 20:59
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    Personally, I think "The Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing," is a pretty blatant reference to impeachment. I'd suggest bolding that line in your quote. – Bobson Jul 26 '19 at 20:56

Answer based on Mueller's testimony before the House Judiciary Committee

On the 24th of July 2019, Mueller testified before Congress. Transcripts are available based on which I think I can give a better answer.

Conservatives took this as a clear indication that Mr. Trump did not obstruct justice because Mueller would've advised Congress to take necessary steps to charge the President (impeachment)

This is directly refuted by Mueller's statement, from the transcript before the House Judiciary Committee:

NADLER: Now, reading from page 2 of Volume 2 of your report that's on the screen, you wrote, quote, "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. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment," close quote. Now does that say there was no obstruction?


He put it more verbosely in another exchange during the hearing:

BUCK: Was there sufficient evidence to convict President Trump or anyone else with obstruction of justice?

MUELLER: We did not make that calculation.

BUCK: How could you not have made the calculation when the regulation...

MUELLER: Because the OLC opinion -- the OLC opinion, Office of Legal Counsel, indicates that we cannot indict a sitting president. So one of the tools that a prosecutor would use is not there.

BUCK: OK but let me just stop, you made the decision on the Russian interference, you couldn't have indicted the president on that and you made the decision on that. But when it came to obstruction, you threw a bunch of stuff up against the wall to see what would stick, and that is fundamentally unfair.

MUELLER: I would not agree to -- I would not agree to that characterization at all. What we did is provide to the attorney general in the form of a confidential memorandum our understanding of the case. Those cases that were brought, those cases that were declined and the -- that one case where the president cannot be charged with a crime.

BUCK: OK, but the -- could you charge the president with a crime after he left office?


BUCK: You believe that he committed -- you could charge the president of the United States with obstruction of justice after he left office.


Answer based on logic

From a logic point of view:

if we had had confidence that the president clearly did not commit a crime- we would have said so.

this reads:

If X then Y

In logic (by definition of the material conditional), not having Y means X doesn't hold.

Applied to the Mueller case, Mueller's team did not say so (that the president clearly did not commit a crime), therefore, logic dictates, the Mueller team did not have 'confidence that the president clearly did not commit a crime'.

Answer based on the Mueller report

In my argument on logic, one could argue that I cheated a bit by interpreting the - (short pause?) as a then. That's not really necessary, the report says it more verbosely:

Fourth, 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. Based on the facts and the applicable legal standards , however , we are unable to reach that judgment. The evidence we obtained about the President 's actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

The excerpt above is taken from page two of the second volume of the Mueller report.

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Not according to the statement released last night by both the Special Counsel's Office and the DOJ.

The statement was released as a handout to reporters, so there is no link to an original. Here's the full text of it. This is a scan (or a photograph of the handout).

It's posted from a verified "blue-checkmark" account of a Fox reporter.

Given that Twitter is notoriously trigger happy with cancelling blue check marks for even the slightest perceived bad behavior (even of the people who are known to be who they say they are) and that blue check marks are very hard to get, I am very temped to consider this alone to be a strong indication that the post is not fake.

Multiple news outlets have also confirmed the text of the release.

Here's a picture of the handout: enter image description here

This maybe worth parsing a bit.

The Attorney General has previously stated that Special Counsel repeatedly affirmed that he was not saying that, but for the OLC opinion, he would have found the President obstructed justice.

In English:

Barr said that

Muller told Barr that even if DOJ thought it was possible to indict a sitting President, he still would have no reason to think that this President obstructed justice.

(this does not sound like a wink and a nod... but this is still something Barr said about what Mueller said).

The Special Counsel's report and his statement today made clear that the office concluded it would not reach a determination -- one way or the other -- about whether the President committed a crime.

In English:

Mueller said that he wouldn't comment, or wouldn't even think about, whether the President committed a crime.

(this is too neutral to be suggestive of anything... no comment is no comment).

There is no conflict between these two statements.

This doesn't need translation, but I would point out that one of the reasons there is no conflict between those 2 statements is that they discuss slightly different topics.

The 1st talks about what Barr heard from Mueller. And Barr remembers it as "what obstruction of justice? What? He?"

The 2nd was effectively Mueller saying "I am not gonna think about it, I am not going to comment on it. This is not my problem."

This statement was released AFTER Mueller's remarks. So it should be seen as a clarification of what Mueller had said earlier in the day.

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  • I'm not sure how that is relevant to the "wink and nod" to Congress. Why would Mueller's report even mention impeachment, for instance, if what you quoted is the answer on that (as well)? – SX welcomes ageist gossip May 30 '19 at 20:16
  • The "wink and nod" claim was spread based on the assumption that Mueller deliberately made a one-way statement to retain ambiguity of whether he thought there was or wasn't guilt. This statement makes it clear that he unambiguously hasn't considered it (rather than considered, and chose not to disclose his opinion). – grovkin May 30 '19 at 20:21
  • See Dershowitz quote in my answer. – SX welcomes ageist gossip May 30 '19 at 20:29
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    I'm not so sure about this. Business Insider calls the statement "convoluted". – tim May 30 '19 at 20:42
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    @tim: Barr did disagree for instance with Mueller on whether Mueller could have reached a conclusion. So the "no disagreement" joint statement should be read narrowly. – SX welcomes ageist gossip May 30 '19 at 20:52

this is very easily explained:

  1. The mueller report is a counter intelligence investigation

  2. A president is above the law, you may want to argue this but there is no one with police power that has authority over the president because he is the top of the chain of command of law enforcement

  3. number 2 is true and just because impeachment does not require the commission of a crime. A president can be impeach for anything including being unpopular. The process is easily explained: the HOR charges, the senate convicts

    First there is a common misconception that the Mueller investigation was a criminal investigation. It is not. The public consuming the news find it more entertaining if the investigation is read as a CSI episode where police investigators are simply finding evidence for a crime that exists. Such as: "there is a dead body with a stab wound, person a was near by, lets connect the crime to the person". Although entertaining and very real in the court of public opinion (public opinion is the basis for politics), it is not real nor legal.

The investigation is a counter-intelligence investigation. There is no crime to point to. Collusion with a foreign government is bad for public opinion, but not a violation of any statute since foreign policy is part of the job of the executive branch. But what about the obstruction of justice? Like many "process crimes" the possible commission of crimes during the investigation is not the basis for the investigation. For example if a police man arrests you for possible commission of a crime and you resist arrest, you will also be charged for resisting arrest whether or not you are guilty of the crime for which you were arrested. This is even though you would have never resisted arrest if you had not been arrested in the first place.

Next there has been the belief that Mueller is looking for a crime and then place the hand cuffs on the president. This is not true and even Mueller stated and now the news is echoing: Can't charge a sitting president.

The final major misconception is that a crime is needed to impeach the president. There is no such requirement. The only thing needed is the appearance of bad behavior and loss of popularity. It is as simple as that. Congress can charge the president simply because they don't like him. Likewise, Senate can convict if they believe public opinion will support the conviction. Again, no violation of crime is needed.

These three points come together to show what the wink and nod is about: It is politically expedient to continue the media circus. as long as it is possible to convict the president in the court of public opinion, Mueller will help it along. Success will depend on the political acumen of the President.

Edit: The comments insist on continuing the misconception of the investigation being criminal. It does not matter what Mueller used to frame his mind nor what is popular. The fact is that this was a counter intelligence investigation and that the president is not being looked at for the commission of a crime. What matters is the order to start the investigation which does not mention a crime but whether or not the Russians interfered with the election based on coordination with members of the Trump election campaign. The order is below, there is nothing there about a crime except any crimes incidentally found while investigating. The report is important in finding no coordination. Here is the relevant part of the order

The Special Counsel is authorized to conduct the investigation confinned by then-FBI Director James 8. Corney in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including: (i) any links and/or coordination bet ween the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a). (c) If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters.

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    "There is no crime to point to." Yet, the first hit on CTRL-F'ing for 'crime' in the report yields: In evaluating whether evidence about collective action of multiple individuals constituted a crime, we applied the framework of conspiracy law, not the concept of "collusion." Turns out, conspiracy is part of criminal law after all. – JJ for Transparency and Monica May 30 '19 at 19:38
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    It was NOT a counterintelligence investigation. It would be of some benefit if it were, but it wasn't. Because it is NOT a counterintelligence investigation, those charged as a result of Mueller's findings are legally entitled to discovery. This gives suspected spies legal tools to query how they were discovered and investigated. If this was a counterintelligence investigation, they would not gain such legal rights. – grovkin May 30 '19 at 19:46
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    @FrankCedeno point (c) of the letter appointing Mueller explicitly authorises him to prosecute federal crimes.. – JJ for Transparency and Monica May 30 '19 at 20:12
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    A number of RF citizens have already been indicted. 13 (I think)? The indictment announcement was very public, so you should have no problem finding it. And indictment means that they are officially accused and are expected to be tried. This gives them the right to demand disclosure of evidence against them (aka "discovery"). This is not my opinion. It's a fact. Their indictments are fait accompli. – grovkin May 30 '19 at 20:17
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    @FrankCedeno I'd love to keep replying but my personal lawyer for many years has recently been indicted (and jailed) in connection with some work he did for me. – JJ for Transparency and Monica May 30 '19 at 21:28

If you actually watched the hearings, it was pretty clear that Mueller did not write much (or possibly any) of the report himself. He had trouble remembering facts, characterizations, and other statements within the report.

I don't think Mueller personally indicated in any way that he was suggesting impeachment. It is abundantly clear that his team of Democrats wrote the most harshly-worded report they could conjure up given the lack of any evidence against Trump.

Then, they went outside of the scope of their mandate and wrote up an incredibly asinine and specious essay outlining 10 so-called incidences of "obstruction" by Trump. All of these instances clearly fell within the scope of Presidential duties and powers, and were completely public, with no special "investigating" being done.

It is definitely clear that Mueller's team of Democrat prosecutors want the Congress to Impeach Trump, but unfortunately for them there is absolutely no basis for doing so.

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