Robert Mueller’s taciturn testimony before the House Judiciary Committee broke little news. But it underscored that the evidence of obstruction of justice developed in the Special Counsel’s report could haunt President Trump after he leaves office, exposing him to legal jeopardy and even — though the possibility seems remote — the threat of prison time.
The former special counsel, answering questioning from Republican congressman Ken Buck of Colorado, clarified the immunity Trump now enjoys from indictment, established by a memo from the Justice Department’s Office of Legal Counsel, expires with the president’s term.
“You could charge the President of the United States with obstruction of justice after he left office?” Buck asked.
“Yes,” Mueller responded, matter of fact.
A separate exchange, with Democratic Rep. Sheila Jackson Lee of Texas, emphasized that the potential obstruction charges outlined in the second volume of Mueller’s 488 page report, are in fact serious crimes. Under normal circumstances, in fact, they could be punished with multiple years in prison.
The back and forth between Lee and Mueller generated little buzz in the moment, but carries significant weight. Lee had been pressing Mueller on the 10 possible instances of obstruction of justice by the president identified in the report, and the legal thresholds that would be required to prove the charges. Mueller’s answers were characteristically brief and devoid of elaboration. But Jackson Lee got the former special prosecutor to speak to the gravity of the potential criminal conduct.
JACKSON LEE: Does a conviction of obstruction of justice result potentially in a lot of years of — a lot of years of time in jail?
MUELLER: Yes. Well, can you repeat the question just to make certain I have it accurate?
JACKSON LEE: Does obstruction of justice warrant a lot of time in jail if you were convicted?
The prospect of Trump actually ending up in an orange jumpsuit seems remote. But Mueller’s testimony Wednesday made clear that — absent the unique complications presented by wrongdoing committed by sitting president — America would be weighing whether or not to, well, Lock Him Up.
For Trump, the threat of prosecution upon his return to civilian life ratchets up the stakes of the 2020 campaign. The statute of limitation on obstruction of justice charges, as Rep. Mike Quigley (D-IL) made plain in the day’s second Mueller hearing, is only five years. That means if Trump were to secure a second term, his eight years in office, under the protection of the OLC memo, would place him beyond the reach of the law.
But if a Democrat defeated Trump in the 2020 election, he could find himself in hot water. Caveats abound. The prosecution of a former U.S. president runs against the currents of our history. The peaceful transfer of power in developed democracies essential demands that the previously elected leader not land in the clink. The will of the voters in ousting Trump could well serve as the last judgment on the potential charges outlined in the Mueller Report.
The true impact of Mueller’s testimony on this front is to emphasize that obstruction of justice by a sitting president is not just a misdemeanor. You might think of it, instead, as a high crime.