The Robert Mueller standard must be overthrown -- for the sake of democracy
FBI Director Robert Mueller testifies during a House Appropriations Committee hearing on the FBI Budget, on Capitol Hill on March 19, 2013 in Washington, D.C. (UPI/Kevin Dietsch via Creative Commons)

Special counsel Robert Mueller’s report is a meticulous and compelling document recounting President Donald Trump’s actions and the informational warfare carried out during the 2016 election by the Russian government. But it contains a serious flaw — and it sents a terrible precedent for the country.

We’re now confronted with that flaw once again as the Justice Department has revealed that the case of the 2016 criminal hush money payments meant to benefit Trump’s campaign has closed. Michael Cohen has already been imprisoned for his part in the scheme, but his testimony, public evidence, and common sense all indicate that Trump, too, was just as culpable.

But because of Justice Department policy, a sitting president cannot be indicted.

According to USA Today, this policy ‘factored into’ the conclusion of the case. And on Friday, House Oversight Committee Chair Elijah Cummings (D-MD) announced that he is trying to find out whether the Justice Department’s policy “played any role” in the end of the investigation.

“If prosecutors identified evidence of criminal conduct by Donald Trump while serving as President—and did not bring charges as they would have for any other individual—this would be the second time the President has not been held accountable for his actions due to his position,” Cummings said. “The Office of the President should not be used as a shield for criminal conduct.”

However, if the Justice Department follows Mueller’s precedent in this case, it won’t acknowledge whether it would have indicted Trump based on the evidence it had were he not president. That was the stunning and unexpected step Mueller took in the report: He said he would lay out the evidence and his legal analysis of Trump’s acts but not reach a conclusion about whether an indictment would be appropriate. Mueller simply refused to state whether Trump should have been indicted for the conduct the office uncovered, even though it was obvious to hundreds of federal prosecutors that the case was more than strong enough. Mueller based his decision on the damage such an allegation would do to the presidency and a misguided notion of being “fair” to Trump.

This was a bad move in the Russia investigation. But this principle, applied to other cases in which there is less accountability and no expectation of a public report, is even more dangerous.

And in some ways, the question at the heart of the 2016 hush-money scheme cuts to the core of American democracy even more so than the obstruction of justice allegations underlying the Mueller report.

Because while Trump’s alleged obstruction of justice as laid out in the Mueller report should be taken very seriously — and is, in my estimation, obviously impeachable conduct — there’s a coherent argument to be made that a president’s actions in office should be given a significant amount of deference.

But the question in the hush-money case is whether Trump broke campaign finance laws in order to become president. If he’s guilty, and if the Mueller standard holds, it would mean the president seized control of the executive branch through an illegal act, a crime he then couldn’t be charged with or accused of because of the office.

This blatantly undermines democracy and the rule of law. And it’s untenable. It means that going into the next election, Trump would have a strong incentive to break the law to win again — thereby further protecting himself from prosecution.

It’s true that impeachment remains a remedy for Trump’s crimes, but it is an exceptionally heavy-lift — especially given extreme levels of modern partisanship. If the qualified investigators who examined the case are barred from even saying that the evidence leads them to believe the president committed a crime, then it will likely be impossible to convince the required members of the president’s party to turn against him for a successful impeachment.

Fortunately, Mueller’s decision was decisive only for his version of the special counsel’s office, and no one else is bound by his conclusions. Any other federal prosecutor’s office should, in theory, be able to announce that they would like to bring charges against Trump but are refraining to do so because of the DOJ policy.

Of course, Attorney General Bill Barr might stop them, and fear of retaliation might prevent any prosecutor who cares about his or her career from taking this bold step. They also might defer to Mueller’s judgment call out of an abundance of caution.

It’s good that Cummings wants to know more about the hush money case, and hopefully, the public can be made aware of the conclusions the prosecutors came to. But if we remain in the dark about these crucial questions, and if the Mueller standard becomes entrenched as a governing norm, the American experiment will rest on much shakier ground.