During his morning press conference, Attorney General William Barr explicitly said that special counsel Robert Mueller had not left it to Congress to determine whether Donald Trump was guilty of obstruction. Barr lied. Again and again in his report, Mueller references the power of Congress—and makes it clear that the finding that Trump did not commit obstruction is all about the limitations on the DOJ as a part of the executive branch.
For 22 pages, the report does nothing but review the applicability of Department of Justice regulations on indicting a sitting executive and look at how they apply to a charge of obstruction. Mueller begins by noting that Trump’s attempts to obstruct the investigation were “mostly unsuccessful,” not because he didn’t try, but because people “declined to carry out orders or accede to his requests.” But it’s clear that Trump attempted to obstruct. Because the remainder of the section isn’t about Trump’s actions, but about the ability of the special counsel to apply charges.
Starting with the constitutional assertion made by Trump’s legal team that firing the FBI director or even directly closing the investigation wouldn’t be obstruction because the DOJ is under Trump’s Article II authority, Mueller spends the next dozen pages examining past obstruction cases and eventually concludes that “an argument that the conduct at issue in this investigation falls outside the scope of the obstruction laws lacks merit.” That is, Trump’s actions are definitely covered by existing obstruction law. Mueller isn’t saying that there’s an issue as to whether Trump obstructed justice—Trump definitely obstructed justice.
Mueller then moves into looking purely at the question of “constitutional defenses to applying obstruction-of-justice statutes to presidential conduct.” That’s the only unresolved question. Not whether Trump committed acts that constitute obstruction, but whether that charge can be applied to a sitting president.
And what the special counsel determines is simple: The only counterforce to Trump’s authority is Congress’ authority.
Although the President has broad authority under Article II, that authority coexists with Congress's Article I power to enact laws that protect congressional proceedings, federal investigations, the courts, and grand juries against corrupt efforts to undermine their functions.
The only way to resolve this issue, according to Mueller, is to look at it in terms of separation of powers. Directly addressing the claim from Trump’s attorneys that “the President's exercise of his constitutional authority ... to terminate an FBI Director and to close investigations ... cannot constitutionally constitute obstruction of justice," Mueller concludes that there is just one remedy.
Applying the Court's framework for analysis, we concluded that Congress can validly regulate the President's exercise of official duties to prohibit actions motivated by a corrupt intent to obstruct justice.
Despite what Barr has claimed, the issue of why Trump wasn't charged with obstruction of justice in the report is entirely the legal question of whether these laws can be applied to a sitting executive. Since Trump’s actions do fit the definition of obstruction for anyone else, the whole question is then whether Trump's Article II powers excuse him from obstruction laws. Mueller concludes that the only counter to Trump's Article II power is Congress’ Article I power, and that Congress can "permissibly criminalize" these actions.
When Mueller fails to indict because of "difficult" legal issues, it's not at all about whether Trump took action that for anyone else would be obstruction. Not only does Mueller make it clear that Trump committed obstruction again and again, but he also makes it clear that far from “cooperating fully,” Trump and his associates threw every possible roadblock in the way of the investigation. The only questions are around who has the authority to rein in that action.
Mueller reaches the conclusion that "we were not persuaded by the argument that the President has blanket constitutional immunity to engage in acts that would corruptly obstruct justice," but doesn't seek indictment. However, everything he discusses as a remedy falls under the power of Congress. There is no mention of the attorney general or anyone else in the executive branch deciding the issue. It was clearly meant to arrive as a question in the House.
Which makes it seem very likely that Robert Mueller felt what he was writing was not a report to sit on William Barr’s desk, but an impeachment referral.