How did Mueller decide not to recommend charges vs Trump? _00024211.jpg
How did Mueller decide not to recommend charges vs Trump?
04:03 - Source: CNN

Editor’s Note: Michael Zeldin, a CNN legal analyst, served as deputy independent counsel, and later as independent counsel, in the investigation into allegations that the administration of George H. W. Bush violated the privacy rights of candidate Bill Clinton in the 1992 presidential campaign. He also served as a special counsel to Robert Mueller in the Department of Justice. Julian Zelizer is a professor of history and public affairs at Princeton University, and author, with Kevin Kruse, of the new book “Fault Lines: A History of the United States Since 1974.” The opinions expressed in this commentary are those of the authors; view more opinion articles on CNN.

CNN  — 

At the end of independent counsel Ken Starr’s investigation of Bill Clinton, Starr submitted directly to Congress his final report, which included 11 specific bases for possible impeachment.

Given the numerous obstruction of justice findings in part two of special counsel Robert Mueller’s report, many can’t understand why Mueller didn’t do the same.

The fact is, Mueller didn’t have that option.

Under the independent counsel law that was in effect at the time of Starr’s report, the independent counsel was required to advise the House of Representatives of any substantial and credible evidence that may constitute grounds for an impeachment.

In reaction to what some perceived as Starr’s “salacious” public report, however, in 1999, Congress allowed the independent counsel law to lapse. In its place, the Department of Justice issued the special counsel regulations. These regulations, which remain in effect today, do not permit a special counsel to submit a report to Congress. They only permit a special counsel to submit a confidential report to the Attorney General.

We believe, and Michael Zeldin has written, that this constraint on Mueller (and other limitations in the regulations) make it imperative for Congress to consider resurrecting the independent counsel statute or a similar law.

It would take time to pass any new legislation, however, and that would only affect future investigations. But meanwhile, Congress is struggling to figure out what to do with Mueller’s findings. Our view is that it would be sensible for Congress to consider analyzing the Mueller report’s obstruction findings under the same standard as that of independent counsels – by asking whether Mueller would have been obligated to advise the House of Representatives of any substantial and credible evidence that may constitute grounds for an impeachment.

This would give Congress, in its oversight capacity, a workable framework for analyzing whether they believe that an impeachment inquiry is warranted.

In the interest of time and to cut to the heart of the matter, Congress should primarily focus on the three key areas Mueller identified as most legally problematic. Specifically, Trump’s efforts to remove Mueller as special counsel and create a false narrative of those efforts; Trump’s efforts to put an end to the Russia investigation; and Trump’s firing of FBI director James Comey. (Other acts – for example, those relating to the investigation of Michael Flynn – could be considered, too, if warranted by the initial inquiry.)

In each of these areas, Mueller found that all of the statutory requirements for an obstruction of justice prosecution were met. In each case, he found an obstructive act, a nexus to an official proceeding, and corrupt intent.

In his report, Mueller set forth substantial direct and corroborative evidence of obstructive conduct for each inquiry. And, as to each, Mueller refuted the constitutional and statutory defenses he anticipated would be made if charges were brought against the President.

Congress, of course, will need to make its own determination, as impeachment is a political judgment informed by, but not dependent on, violations of statutory law.

To do this, each member of Congress will need to read the full Mueller report. In addition, Congress will need to be able to obtain all the evidence underlying the Mueller report (as was done in the Starr investigation) that pertains to the issues under review, compel the testimony of relevant witnesses (so that Congress and the American people can assess their credibility), and hear from lawyers (including Attorney General Barr and Deputy Attorney General Rosenstein), constitutional scholars, and historians to obtain insight into whether the specific acts of alleged obstruction as well as the overall pattern of behavior that Mueller describes meets the Constitutional threshold of “high crimes and misdemeanors.”

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    As articulated by Alexander Hamilton in Federalist 65, high crimes and misdemeanors are “offenses which proceed from the misconduct of public men, or in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to society itself.”

    After that, Congress, with informed input from their constituents, will be in the best position to determine whether an impeachment inquiry is warranted.