Fox News figures spread multiple falsehoods about special counsel Robert Mueller’s May 29 press conference in which he explained that his team could not consider charging President Donald Trump with any crimes because of Justice Department policy, while also saying that if he had been confident Trump hadn’t broken any laws, he “would have said so” -- but didn’t. These falsehoods about Mueller’s statement from Fox hosts and commentators include claims that Trump was exonerated; that it was the special counsel’s job to determine charges against the president; that Mueller never presented evidence Trump may have obstructed justice; that Trump wasn’t charged with any crimes because of a lack of evidence; and that an “underlying crime” was necessary for Trump to criminally obstruct justice.
Mueller explained that he was prohibited from bringing charges against Trump during his investigation
Mueller said that “charging a president with a crime” wasn’t “an option we could consider” and also said that if he had been sure Trump hadn’t broken any laws, “we would have said so.” In his statement, Mueller explained that he was not allowed to consider charging Trump with any possible crimes because of DOJ policy, but he also made clear that he was not exonerating the president:
Special counsel Robert Mueller shut down his Russia investigation on Wednesday in an unusual appearance in which he restated his findings and made clear that he never considered it an option to charge President Trump.
In his 10-minute statement, Mueller highlighted a few portions of his roughly 400-page report, including the section on whether President Trump obstructed justice.
“If we had had confidence that the president did not commit a crime, we would have said so,” he said. “We did not, however, make a determination as to whether the president did commit a crime.”
Mueller emphasized that Justice Department regulations do not permit the indictment of a sitting president. Accordingly, Mueller said, he never considered it an option to seek one no matter what he had uncovered.
If Americans or members of Congress want to hold a president accountable, Mueller said, an investigation like his is not the way.
“The [Justice Department's] opinion says that the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing,” Mueller said. [NPR, 5/29/19]
FALSE: Trump was exonerated by Mueller
Fox News host Pete Hegseth falsely claimed that Trump can “rightfully” say there was “no obstruction” and that he's “exonerated.” On the May 29 edition of Fox Business’ Varney & Co., Fox News host Pete Hegseth said:
PETE HEGSETH (FOX NEWS HOST): I think both sides are going to take what they want from this statement. You're going to have the president rightfully saying, “No collusion, no obstruction, I'm exonerated, let's move on.” The coded language in the second part, though, I think is what Democrats are going to seize on, which is “department policy is such that we're not able to charge a sitting president with obstruction, therefore we didn't.” He didn't say he didn't obstruct. He said we're not -- it would be unfair to bring charges against a sitting president where there's no place to adjudicate it. So I think that's what you'll see on late night television on the other networks, obsessing over the fact Bob Mueller's hands were tied by the Trump Justice Department and therefore, he didn't bring obstruction charges. But I think the bigger narrative will be the president can go to the voters, which will be the ultimate decision on this in 2020, and say, “They dragged me through the mud for two and a half years, I was exonerated, let's do something big with the next four years.” [Fox Business, Varney & Co., 5/29/19]
FACT: Mueller’s press conference and his report made clear he was not exonerating Trump
Even Attorney General Bill Barr’s insufficient summary of Mueller’s report stated that it “does not exonerate” the president of any possible crimes. Mueller actually explained during his press conference that he is not exonerating Trump of any possible crimes, saying: “If we had had confidence that the president clearly did not commit a crime, we would have said so.” And Barr’s March 24 summary of Mueller’s report acknowledged that “while this report does not conclude that the President committed a crime, it also does not exonerate him.” [The Associated Press, 5/30/19; Politico, 3/24/19]
FALSE: Mueller failed to do his job by not determining whether Trump should be charged
Fox anchor Martha MacCallum claimed Mueller’s job “was to determine whether or not there was a criminal charge that should be made” against the president. On the May 29 edition of Fox News Radio’s The Brian Kilmeade Show, Fox News anchor Martha MacCallum said:
MARTHA MACCALLUM (FOX NEWS ANCHOR): I'll go back to the point I made earlier. One: It is not their job to say we couldn't exonerate him. Their job was to determine whether or not there was a criminal charge that should be made and what -- and that's the only determination that is required of them. Everybody from Trey Gowdy to Andy McCarthy will tell you the exact same thing -- it doesn't matter what they think about whether or not they could exonerate him. What matters is whether or not they could charge him. [Fox News Radio, The Brian Kilmeade Show, 5/29/19]
FACT: Mueller said he was not authorized to consider charging the president
Mueller said he was not allowed to bring charges against President Trump. As NPR reported, Mueller explained during his press conference that “Justice Department regulations do not permit the indictment of a sitting president.” As Mueller said, “charging the president with a crime was therefore not an option we could consider.” [NPR, 5/29/19]
FALSE: Mueller never presented evidence that Trump obstructed justice
Fox commentator Gregg Jarrett falsely suggested Mueller presented no evidence of obstruction of justice by Trump. From the May 29 edition of Premiere Radio Networks’ The Sean Hannity Show:
GREGG JARRETT (FOX NEWS LEGAL ANALYST): Again, if you read the special counsel report, it’s 448 pages of politics and not so much the law. It’s almost as if you can tell that Mueller and his team of partisans knew that there was no legal basis for an obstruction case against the president, and so they sort of twisted the facts and tried to contort the law to create the suggestion -- to imply that it might be possible. But, you know, trust me, if they had evidence of a case against the president, Mueller would have said so explicitly and he would have moved to, as he told Barr, abandon the Office of Legal Counsel opinion that you can’t charge a sitting president. That’s an advisory opinion, it is not binding, it is not mandatory. You know, it is, “This is our opinion.” But according to Mueller, he is free to abandon it in a case where there is solid evidence. [Premiere Radio Networks, The Sean Hannity Show, 5/29/19]
FACT: Mueller’s report outlined multiple instances where Trump may have committed obstruction of justice
Lawfare outlined Mueller’s evidence of 10 possibly obstructive acts by Trump.
Lawfare Managing Editor Quinta Jurecic wrote an April 21 post outlining the evidence Mueller laid out in his report of actions by the president that she believes may constitute obstruction of justice:
The Mueller report describes numerous instances in which President Trump may have obstructed justice. A few days ago, I threw together a quick spreadsheet on Twitter to assess how Special Counsel Robert Mueller seemed to assess the evidence. Unexpectedly, that spreadsheet got a fair amount of attention—so I thought I would delve back into the evidence to provide a revised visualization with a little more nuance, which will hopefully be helpful to people attempting to parse a legally and factually dense document.
The key question is how Robert Mueller and his team assessed the three elements “common to most of the relevant statutes” relating to obstruction of justice: an obstructive act, a nexus between the act and an official proceeding, and corrupt intent. As Mueller describes, the special counsel’s office “gathered evidence … relevant to the elements of those crimes and analyzed them within an elements framework—while refraining from reaching ultimate conclusions about whether crimes were committed,” because of the Office of Legal Counsel (OLC)’s guidelines against the indictment of a sitting president.
The below heat map is an effort to simplify Mueller’s analysis of the evidence in relation to the three common elements of the obstruction statutes. Instances of possibly obstructive conduct are identified by their section marking in Volume II of the report. … Some sections contained varying analysis of multiple possibly obstructive acts, which are identified separately. [Lawfare, 4/21/19]
FALSE: Mueller didn’t recommend charges against Trump because there wasn’t enough evidence
Fox host Sean Hannity falsely claimed Trump wasn’t charged with any crimes “because there was no evidence as it relates to any of these issues.” From the May 29 edition of Premiere Radio Networks’ The Sean Hannity Show:
SEAN HANNITY (HOST): Mueller takes this position today, but if we look at the whole case -- nobody was charged, he didn’t even return one charge, because there was no evidence as it relates to any of these issues. And you know, and then we get to the whole issue of what does the law mandate? I mean, then we get to the double standard issue because OK, if there was no underlying crime, you never believed there was an underlying crime, you believed in your innocence, you proclaimed your innocence as the president did every single day, and while, you know, Don McGahn can say that he might have suggested firing Mueller, well somebody else would have replaced Mueller because of the conflict of interest that would be within the president’s powers under Article Two. But the president never fired Mueller, never fired Rod Rosenstein, let the investigation go forward, he encouraged everybody in the White House publicly and privately to testify, they all did, 1.5 million documents handed over in the process of all of this, and saying that this is a witch hunt hardly is obstruction. Where is the obstruction?
GREGG JARRETT (FOX NEWS LEGAL ANALYST): Well, there is none. First of all, there are two U.S. Supreme Court decisions that say general statutes don't apply to a president who is exercising his Constitutional authority unless those statutes say so. If you look at all of the obstruction statutes, they do not expressly apply to the president. So as a Constitutional matter, in things like firing James Comey and the words allegedly uttered about Michael Flynn -- those as a Constitutional proposition do not qualify under obstruction of statute. But even if you accept some sort of expansive, elastic interpretation of obstruction as it applies to the president -- for every allegedly incriminating finding in Mueller’s report, there is a corresponding exculpatory explanation. [Premiere Radio Networks, The Sean Hannity Show, 5/29/19]
FACT: Mueller said that DOJ policy prevented him from filing charges against the president
Mueller said he was not allowed to bring charges against the president, regardless of the evidence available. As NPR reported, “Mueller emphasized that Justice Department regulations do not permit the indictment of a sitting president. Accordingly, Mueller said, he never considered it an option to seek one no matter what he had uncovered.” [NPR, 5/29/19]
FALSE: Trump could not have obstructed justice if there was no “underlying crime”
Hegseth: If Trump “was obstructing, there should be an underlying crime.” On the May 30 edition of Fox & Friends, Hegseth said that “if he was obstructing, there should be an underlying crime, which of course there never was either. So there’s a lot of holes in this.” [Fox News, Fox & Friends, 5/30/19]
FACT: Legal experts say Trump could have obstructed justice no matter the focus of the investigation
PolitiFact quoted 11 legal experts who agreed that a president could commit the crime of obstruction of justice without being charged with a separate crime. From a March 25 PolitiFact article:
In the 24 hours after the Barr letter was released, we noticed a lot of cable TV debate about whether someone can or can’t be tried for obstructing justice if there is no underlying crime. Put another way, can you obstruct justice if there was theoretically nothing to obstruct? We decided to take a closer look.
We checked with 11 legal experts to nail down answers. Essentially all of these experts agreed that obstruction can indeed be prosecuted without an underlying crime — and has been in the past, notably in the case of Martha Stewart.
Several experts added, however, that there are some important distinctions between these historical precedents and what Mueller found. So the debate (sorry) will likely continue.
Legal experts told us that a president (or anyone) could still be prosecuted for obstructing justice if they believed they might be prosecuted — even if they ultimately never are.
“You can obstruct justice even if a prosecutor ultimately finds you were not guilty of committing the crime that was the focus of the underlying investigation,” said Miriam Baer, a professor at Brooklyn Law School. “Even if a prosecutor ultimately concluded that you weren’t guilty of crime X, that says nothing as to whether you thought that you might be indicted for crime X, or, for that matter, if you thought one of your friends of family members would be indicted for crime X.”
Eric Posner, a professor at the University of Chicago Law School, agreed that an obstruction prosecution could have been argued in this case.
“Suppose Trump knew that no crime had been committed but believed that the investigation would uncover politically or personally embarrassing information, or if he believed that the investigation would embarrass or implicate an ally, aide, or family member,” Posner said. “Then interfering with the investigation is a crime. The reason is that the purpose of the investigation is to find the truth, and if people obstruct an investigation, then the investigation becomes more difficult, wasting government resources.” [PolitiFact, 3/25/19]