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The “Whoa!” moment of the Mueller hearings so far, explained

It’s not exactly as big as you think it is.

Former Special Counsel Robert Mueller testifies before a House Judiciary Committee hearing on July 24, 2019.
Robert Mueller testifies before a House Judiciary Committee hearing on July 24, 2019.
Jonathan Ernst/Pool/Getty Images

Special counsel Robert Mueller didn’t charge President Donald Trump with obstruction of justice during the Russia investigation, but he didn’t exonerate the president, either.

The reason for that, according to Mueller, is that he believes a Justice Department opinion bars him from charging a sitting president with a federal crime.

It was therefore no surprise that Mueller was asked about his position during Wednesday’s House Judiciary Committee hearing, leading to one of the most controversial moments of the session.

“I’d like to ask you the reason, again, that you did not indict Donald Trump is because of OLC [Office of Legal Counsel] opinion stating that you cannot indict a sitting president, correct?” Rep. Ted Lieu (D-CA) asked Mueller.

Mueller’s response was straightforward: “That is correct.”

That moment set off a bit of a firestorm among left-leaning watchers. Greg Sargent, a liberal commentator at the Washington Post, tweeted, “Whoa!” Nicholas Kristof, an opinion writer for the New York Times, called Mueller’s response “the big news so far” and “very significant.”

But this reaction, frankly, is just wrong. Here’s why.

Mueller has repeatedly said he didn’t make a decision on indicting Trump

Mueller spent much of his report giving reasons for why he didn’t charge Trump with a crime.

In addition to the Justice Department opinion, Mueller cited that it would be unfair to indict Trump when he can’t defend his name in court.

“The concerns about the fairness of such a determination would be heightened in the case of a sitting President, where a federal prosecutor’s accusation of a crime, even in an internal report, could carry consequences that extend beyond the realm of criminal justice,” he wrote.

And asked earlier in Wednesday’s hearing by Rep. Guy Reschenthaler (R-PA) if he decided not to prosecute Trump, Mueller responded that “we made a decision not to decide whether to prosecute or not.”

In other words, the Justice Department policy wasn’t the only thing keeping Mueller from charging Trump with a federal crime. Many factors, including Mueller’s views of fairness, explain his non-decision decision.

Mueller later clarified his response to Lieu at the start of the House Intelligence Committee hearing hours later.

“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 in his statement. “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.”

It’s understandable why many have latched onto the Lieu moment. After all, it would be a massive admission by Mueller under oath. But it seems he was a bit imprecise in answering the lawmaker, or at least didn’t make his true feelings clear.

Put together, the Mueller-Lieu exchange is not the bombshell it’s being made out to be. And if you don’t believe me, just listen to Mueller himself.