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

by Michael C. Dorf

Special 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 impartial adjudicator.
In my view, that statement badly misunderstands the nature of a criminal trial.

Let's begin with a garden-variety criminal case: Prosecutors charge Defendant with murder. After a full trial, the jury returns a verdict of not guilty, even though most of the jurors believe that Defendant probably is guilty. However, they are not persuaded of Defendant's guilt beyond a reasonable doubt. Has Defendant's name been cleared?

Hardly. Under ordinary rules of claim and issue preclusion, the victim's surviving spouse or other family members can now bring a civil wrongful death action against Defendant. In such an action, the plaintiffs will prevail if they can establish it is more likely than not that Defendant intentionally killed victim without justification.

The O.J. Simpson criminal trial acquittal followed by civil verdict against Simpson fit the foregoing pattern exactly, but so do numerous other cases. Although non-lawyers sometimes find it surprising or curious that someone can be both innocent for criminal purposes and guilty for civil purposes, the juxtaposition simply follows from the different burdens of proof in the two kinds of cases. And those different burdens make sense. We set a substantially higher burden for depriving someone of his liberty by imprisonment (or life, in jurisdictions that retain the death penalty) than we set for depriving someone of the money needed to satisfy a civil judgment.

To be sure, most criminal acquittals are not followed by civil trials. However, that fact is not a reflection of any view that a criminal acquittal "clears the name" of the defendant. Some crimes do not result in substantial financial harm that would make a civil suit worthwhile, and even those that do are typically perpetrated by people who would be effectively judgment-proof. Thus, the fact that no one chooses to sue any particular defendant who was acquitted in a criminal case does not in any way mean that the criminal case settles what happened. It only settles the question of whether society is sufficiently confident in the defendant's guilt to deprive him of his liberty (or life).

None of this is to deny that a criminal indictment inflicts reputational harm on the person indicted. It is to deny that such harm is either the primary reason for a criminal trial or something that can be fully remedied by an acquittal.

Nonetheless, in a footnote attached to the language I quoted above from the Mueller Report, the special counsel writes that his decision not to reach a judgment regarding Trump's indictability on obstruction charges is consistent with criticisms of "the practice of naming unindicted co-conspirators in an indictment." This is misguided for two reasons.

First, Mueller can't seriously believe this. Consider the indictment of Michael Cohen, which does not name Trump as such, but obviously invokes him as an unindicted co-conspirator. Trump is "Individual 1," who is "the owner" of "a Manhattan-based real estate company."

If one were really worried about the impact of an indictment on an unindicted co-conspirator, one would not use such transparent devices. True, prosecutors in the SDNY rather than Mueller himself issued the Cohen indictment, but the case was an outgrowth of the Mueller investigation. Cohen's name appears nearly 900 times in the Mueller Report. And even setting aside the fact that the Cohen indictment obviously identifies Trump as an unindicted co-conspirator, the general practice of not naming but clearly identifying unindicted co-conspirators utterly belies any concern for their reputations.

Second, even if there were some general reputation-regarding reason for not reaching judgments about criminality when an indictment would not be forthcoming, such a reason would not apply to Trump, who has multiple means of clearing his name should he wish to do so and were that possible.

Suppose that Mueller had included in the Report a conclusion that Trump would be indicted consistent with the law and with Justice Department policy were it not for the further policy barring indictment of a sitting president. Trump could not then sue Mueller or any members of his team, because prosecutors enjoy absolute immunity, but Trump could bring lawsuits against others. Many of the most damning details regarding obstruction were previously reported by major media outlets. Trump could sue one of them, arguing that, as purveyors of "fake news," they knowingly published false stories. Indeed, Trump has repeatedly threatened to do just that.

It's true that in a civil lawsuit for defamation Trump would have the burden of proving that the defendant journalists and publications acted at least recklessly with respect to the truth, but if Trump were right that the stories in question are simply fake news, that should be easy. And the fact that he could only prevail under a preponderance standard rather than merely having to avoid being found guilty beyond a reasonable doubt would not distinguish him from anyone else.

If Trump wants to clear his name, he can sue. The fact that he won't tells you all you need to know. On this point, Mueller goofed.