Stephen Gottlieb: The Special Prosecutor Did Not Exonerate the President

Jul 30, 2019

In the hearings on the Mueller Report, some of the President’s supporters tried to describe “innocent until proven guilty” as meaning that the president is innocent of any crime and that the special prosecutor made that finding.

“Innocent until proven guilty” is a slogan with important purposes – we must not punish people who haven’t been found guilty. The presumption of innocence bars any form of punishment before a guilty verdict. We have to make sure that we don’t catch and punish the wrong people. But there is no negative implication here. “Innocent until proven guilty” doesn’t mean that someone who hasn’t been proven guilty is therefore actually and certifiably innocent. Even people who are held not guilty after criminal trials are sometimes found responsible in civil cases, where the penalty is money, not time in jail. “Innocent until proven guilty” is a presumption, not a conclusion about a person’s actual behavior.

In some cases, prosecutors do conclude that a defendant was innocent, but their judgment is not binding on anyone if something else turns up and changes the impact of the evidence.

In other cases, prosecutors conclude that they can’t convince a jury that a defendant is guilty beyond a reasonable doubt, sometimes called a moral certainty. If not, they can put the case aside, hoping or trying to get more evidence. They may still believe the defendant probably committed a crime, even though they understand there is still a reasonable doubt. They have evidence that points toward guilt, but it isn’t strong enough to convince a jury to imprison someone.

Or, and this seems to have been the case with Trump, they believe they might have sufficient information to convict, but they don’t have the authority to prosecute. The rule in the Justice Department against indicting a sitting president barred Mueller from proceeding.

But none of those possibilities imply a finding of innocence as a fact.

Special Counsel Robert Mueller tried to make it clear. There is no finding of innocence in the Report. Instead, the Report described evidence that points toward obstruction of justice, and concluded:

“[I]f 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.”

It’s not clear who first said, “I must follow them; I am their leader.” That is clearly Nancy Pelosi’s position. To get too far out ahead of the public is dangerous. It could close minds rather than open them, increasing the danger for our country. Lawyers like myself, need to be very conscious of whether and when a jury will be receptive to a charge even though we have evidence. My own view is that Mr. Trump has committed impeachable offenses. But I also agree that the moment to pursue impeachment has not arrived because too much of the public and too many of their Senators are not yet ready to hear the charges, much less follow where the evidence leads. I’m hopeful that the ongoing hearings will help to prepare the public and the Senate. But it isn’t patriotic to go ahead blindly.

Stephen Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.

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