Mueller's Mistake: A Criminal Trial is not an Opportunity for the Defendant to Clear his Name

by Michael C. DorfSpecial Counsel Robert Mueller accepted the Justice Department policy barring indictments of a sitting president. He could have nonetheless made a determination whether Trump would be subject to indictment based on his conduct as evaluated under the governing statutes and Justice Department policies if Trump weren't president, but Mueller declined to do so. Why? According to the Mueller Report (Vol 2, page 2):Fairness concerns counseled against potentially reaching that judgment when no charges can be brought. The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor’s judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an…

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