Sorry folks, but it still isn’t clear that Robert Mueller would have indicted Trump if he could have

The strongest evidence in Democrats favor came when Rep. Ted Lieu, D-Calif., asked Mueller, “The reason, again, you did not indict Donald Trump is because of OLC opinion stating that you cannot indict a sitting president?”

Mueller responded, “That is correct.”

This is potentially significant because Democrats pushing impeachment are trying to argue, essentially, that Mueller would have indicted Trump if he could have, but because he determined he could not, his report should be seen as him passing along all his evidence to Congress to finish the job.

That’s the point that Sen. Kamala Harris, D-Calif., seized on.

However, the rest of Mueller’s exchange with Lieu and his other answers this morning, suggest that he did not intend to deviate from previous statements, which left unresolved the question of what he might have done in an alternate universe in which the Office of Legal Counsel guidance did not exist. To parse this issue fairly, it’s important to recall a bit of history.

The second part of Mueller’s report laid out potential instances of obstruction of justice by Trump, but declined to make a “traditional” decision on whether to prosecute, due to the department’s guidance against indicting a sitting president given its potential to impair the executive’s ability to carry out duties.

When Attorney General William Barr released the report, he held a press conference in which he recalled discussing the issue with Mueller. “We specifically asked him about the OLC opinion and whether or not he was taking a position that he would have found a crime but for the existence of the OLC opinion,” Barr said. “And he made it very clear several times that that was not his position. He was not saying that but for the OLC opinion, he would have found a crime. He made it clear that he had not made the determination that there was a crime.”

Barr’s answer was lawyerly. That is, listening to it one way, it could be used to bolster Trump’s oversimplified “no collusion, no obstruction” declaration. But rereading it carefully, Barr isn’t saying definitively that Mueller would not have indicted Trump in a world in which the Office of Legal Counsel opinion did not exist. He’s merely saying, Mueller did not conclude that Trump committed a crime he would have been prosecuted for were it not for the guidance.

To use an analogy, sometimes judges will rule that they have no jurisdiction over a given case, without actually indicating how they would have ruled on the underlying merits of the issue being contested. Mueller even uses the word “jurisdiction” in his report in stating, “this Office accepted OLC’s legal conclusion for the purpose of exercising prosecutorial jurisdiction.”

In his previous May 29 public news conference, Mueller said that based on Justice Department guidelines, “we concluded that we would not reach a determination – one way or the other – about whether the President committed a crime. That is the office’s final position and we will not comment on any other conclusions or hypotheticals about the President.”

To underscore that there was no disagreement on this issue, Mueller and Barr released a joint statement, which read: “The Attorney General has previously stated that the Special Counsel repeatedly affirmed that he was not saying that, but for the OLC opinion, he would have found the President obstructed justice. 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. There is no conflict between these statements.”

Before getting to the Lieu exchange, it’s worth noting that at several other points during the hearing, Mueller made statements that were completely consistent with these previous statements.

“Was there sufficient evidence to convict President Trump or anyone else with obstruction of justice?” Rep. Ken Buck, R-Colo., asked Mueller.

“We did not make that calculation,” Mueller replied.

“How could you not have made the calculation?” Buck shot back.

“The OLC opinion,” Mueller responded. “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.”

So, here is Mueller saying his office didn’t even go through the calculations involved in weighing the evidence and deciding whether it was strong enough to make the case for obstruction.

When Rep. Guy Reschenthaler, R-Pa., asked Mueller, “In this case you made a decision not to prosecute, correct?” Mueller responded by saying, “No. We made a decision not to decide whether to prosecute or not.”

Again, Mueller is saying his office didn’t even entertain the question of whether to prosecute once it adopted the Office of Legal Counsel guidance.

Going back to the Lieu exchange, as a reminder, the congressman asked, “The reason, again, you did not indict Donald Trump is because of OLC opinion stating that you cannot indict a sitting president?” And Mueller responded, “That is correct.”

But more broadly, Lieu was trying to confirm with Mueller that the special prosecutor thought Trump committed obstruction. Lieu did this by pointing to three elements of an obstruction case, and individually getting Mueller to agree that Trump committed those acts, and then drawing the conclusion that obstruction occurred. However, Mueller was quick to push back by saying, “The only thing I want to add is that going through the elements with you did not mean, or does not mean, that I subscribe to what you’re trying to prove through those elements.”

Effectively, what he was saying is that certain things may be true individually, but that does not necessarily mean that they can be put together to draw the same conclusion that Lieu did.

When Rep. Debbie Lesko, R-Ariz., read back Mueller’s May 29th joint statement in view of what he told Lieu, Mueller punted, saying, “I would have to look at it more closely before I said I agreed with it.”

Given Mueller’s statements on the matter over time and during the rest of the hearing, along with his painstaking efforts to avoid going beyond what was in the report, I don’t believe it’s right to conclude that Mueller intended to break new ground based on that isolated question and answer with Lieu. Again, in the news conference, he said, “we will not comment on any other conclusions or hypotheticals about the president.”

It’s fair, based on the report as well as Mueller’s statements, for Democrats to argue that Mueller concluded his hands were tied by the Office of Legal Counsel report, and so he was unable to even consider whether to indict. Thus, his decision to refrain from prosecution does not mean he exonerated Trump on obstruction charges. However, it does not seem clear at all that Mueller was trying to say that were his hands freed of the Office of Legal Counsel opinion, that he definitely would have indicted Trump.

Ultimately, however, regardless of Mueller’s calculations, Democrats need to decide whether to impeach Trump based on the evidence before them. And none of that changed based on what we heard today, no matter where one comes down on the question.

UPDATE: Before his House Intellegence Committee testimony, Mueller emphatically backed off his statement to Lieu. “Now before we go to questions, I want to add on correction to my testimony this morning. I want to go back to one thing that was said this morning by Mr. Lieu who said, and I quote, you didn’t charge the President because of the OLC opinion. That is not the correct way to say it,” Mueller said. He explained, “As we say in the report, and as I said at the opening, we did not reach a determination as to whether the President committed a crime. “