Reappearing on Capitol Hill after a lunch break, Mueller told the House Judiciary Committee: “Before we go to questions, I want to add one correction to my testimony this morning.”
“I want to go back to one thing that was said this morning by [Rep. Ted] Lieu, who said, and I quote, ‘you didn’t charge the president because of the OLC [Office of Legal Counsel] opinion.’ That is not the correct way to say it,” Mueller added.
“As we say in the report and as I said in the opening, we did not reach a determination as to whether the president committed a crime.”
Lieu (D-Calif.) had asked Mueller earlier in the day: “The reason, again, that you did not indict Donald Trump is because of OLC opinion stating that you cannot indict a sitting president. Correct?”
“That is correct,” Mueller responded.
The clarification about the Office of Legal Counsel opinion hit upon the murky issue of why Mueller’s team chose to make the unusual prosecutorial decision to say it was not going to decide whether or not to charge Trump with obstruction of justice, instead presenting the case it compiled in the lengthy investigation to Attorney General William Barr.
Barr and Deputy Attorney General Rod Rosenstein, who appointed Mueller as special counsel in 2017, decided that the evidence the special counsel’s team presented did not definitively show obstruction of justice by President Trump.
“I personally felt he could’ve reached a decision,” Barr said during an interview with CBS on May 30. Mueller “had his reasons” for not making a recommendation but declined to explain, Barr added. “I’m not going to, you know, argue about those reasons.”
“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,” Barr added.
“The Attorney General has previously stated that the Special Counsel repeatedly affirmed that he was not saying that, but for the OLC (Office of Legal Counsel) 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,” said Kerri Kupec, spokeswoman for the Department of Justice and Peter Carr, spokesman for the special counsel’s office, in the joint statement.
“There is no conflict between these statements,” they added.
“We did not understand exactly why the special counsel was not reaching a decision and when we pressed him on it, he said his team was still formulating the explanation,” Barr said of the March 5 meeting.
The team cited an Office of Legal Counsel (OLC) opinion that the president could not be indicted or prosecuted while in office, but Barr told the committee that Mueller had told him the office’s opinion was not a factor in his decision not to bring charges.