WASHINGTON — The special counsel, Robert S. Mueller III, will not indict President Trump if he finds wrongdoing in his investigation of Trump campaign links to Russia, according to the president’s lawyers. They said Wednesday that Mr. Mueller’s investigators told them that he would adhere to the Justice Department’s view that the Constitution bars prosecuting sitting presidents.
The disclosure provides the greatest clarity to date about how Mr. Mueller, who is also investigating whether Mr. Trump tried to obstruct the inquiry itself, may proceed. If he concludes that he has evidence that the president broke the law, experts say, he now has only two main options while Mr. Trump remains in office: He could write a report about the president’s conduct that Congress might use as part of any impeachment proceedings, or he could deem the president as an unindicted co-conspirator in court documents.
Mr. Mueller’s stance could serve as political relief for Mr. Trump, whose presidency has been under the cloud of the investigation. Mr. Trump has repeatedly called it a “witch hunt.” A White House spokesman did not immediately respond to a question about how the president reacted to Mr. Mueller’s viewpoint on indictment.
On Thursday morning, the president noted the anniversary of the special counsel investigation.
“Congratulations America, we are now into the second year of the greatest Witch Hunt in American History,” Mr. Trump wrote in a Twitter post.
But the question of whether the president can be indicted is unsettled. Many legal experts and current and former Justice Department officials believed that Mr. Mueller would follow the conclusions of Justice Department lawyers, who argued during both the Nixon and Clinton administrations that an indictment would interfere with the president’s constitutional responsibilities and powers to run the executive branch.
Mr. Trump’s lead lawyer, Rudolph W. Giuliani, said the special counsel’s office displayed uncertainty about whether Mr. Trump could be indicted. “When I met with Mueller’s team, they seemed to be in a little bit of confusion about whether they could indict,” Mr. Giuliani said. “We said, ‘It’s pretty clear that you have to follow D.O.J. policy.’”
Mr. Giuliani said that one member of Mr. Mueller’s office acknowledged that the president could not be indicted. Two or three days later, Mr. Giuliani said, Mr. Mueller’s office called another of the president’s lawyers, Jay Sekulow, to say that prosecutors would adhere to the Justice Department view.
“They can’t indict,” Mr. Giuliani said. “They can’t indict. Because if they did, it would be dismissed quickly. There’s no precedent for a president being indicted.”
It is not clear why Mr. Mueller has decided that he will not seek Mr. Trump’s indictment. A spokesman for the special counsel declined to offer clarity about the assertions of Mr. Giuliani, who since being hired last month by Mr. Trump has repeatedly made statements that were later clarified. In his most notable misstep, he mischaracterized how payments were made by Mr. Trump’s longtime personal lawyer, Michael D. Cohen, to a pornographic film actress who has said she had sex with Mr. Trump. The president has denied her accusation.
Mr. Mueller’s apparent willingness to follow the department’s view that sitting presidents may not be indicted may have a direct effect on the most pressing decision facing Mr. Trump about the investigation: whether to sit for an interview with investigators. For months, Mr. Trump’s lawyers and Mr. Mueller have been negotiating the terms of an interview.
Several current and former members of Mr. Trump’s legal team have expressed their belief that if Mr. Trump has no criminal exposure, then he has no reason for him to agree to be interviewed.
“Sitting for an interview is just riskier and could create more exposure, so why risk it if there is no criminal issue?” said John Dowd, who until March was Mr. Trump’s lead lawyer for the special counsel inquiry. “The president is extremely busy and it will take — given the 49 questions — months to prepare him, and they’re not worthy of the distraction.”
“The special counsel’s office has the answers,” he added, referring to the reams of documents the White House has handed over, “and if they want more, they can ask for them from the president’s counsel. He’s too busy a guy.”
But the president himself has shown eagerness to be questioned. Mr. Dowd quit over their opposing views on the matter.
If Mr. Trump refuses to be interviewed, Mr. Mueller could subpoena him to answer questions in front of a grand jury. Mr. Giuliani said that if Mr. Trump cannot be indicted, he does not believe Mr. Mueller can subpoena him. “We would say they can’t,” Mr. Giuliani said. Mr. Trump’s lawyers believe that the only topic on which Mr. Mueller could seek to subpoena the president would be for information he personally had about obstruction of justice.
Mr. Mueller, who was appointed a year ago Thursday, does not appear to have gone that far in his views. But the fact that he has decided he will not indict the president before he has finished investigating the case strongly suggests that his reason has to do with the rules, apart from what the evidence turns up.
While nothing in the Constitution or federal statutes says that sitting presidents cannot be indicted, and no court has ever ruled that they are temporarily immune, lawyers with the Justice Department’s Office of Legal Counsel have twice concluded — once during the Nixon administration, and again during the Clinton administration — that the Constitution bars prosecuting presidents.
Both the stigma of being charged with a crime and the burden of a trial — including a likely need to be in the courtroom at times — would undermine the president’s abilities to carry out his duties, preventing the executive branch “from accomplishing its constitutional functions” in a way that cannot “be justified by an overriding need,” as Robert G. Dixon Jr., then the head of the Office of Legal Counsel, wrote in September 1973.
That theory — crafted by lawyers appointed by Presidents Richard M. Nixon and Bill Clinton — has been contested by some scholars. In particular, lawyers working for the special prosecutor in the Watergate case, Leon Jaworski, and the independent counsel in the Whitewater and Monica Lewinsky investigations, Kenneth Starr, maintained that the Justice Department’s interpretation was wrong and that a president could be indicted while in office.
Those who think a president can be indicted have cited a 1997 Supreme Court ruling that held that a lawsuit against Mr. Clinton could proceed while he was in office, notwithstanding the burdens that it imposed upon him. They have also pointed to the 25th Amendment, which allows a president who is disabled from performing his duties be temporarily replaced by the vice president.
But Mr. Mueller appears to have far less latitude than either of those predecessors in how he chooses to interpret the law. The regulations that Rod J. Rosenstein, the deputy attorney general, cited when appointing Mr. Mueller say that he must obey the Justice Department’s “rules, regulations, procedures, practices and policies,” and Office of Legal Counsel interpretations of the law are generally binding on the department.
Moreover, neither Mr. Jaworski nor Mr. Starr ultimately tried to indict Mr. Nixon or Mr. Clinton. Instead, as a prudential matter, they let Congress decide, through impeachment proceedings, whether to remove those presidents from office on the basis of the evidence they had helped to gather.
As for the possibility of listing Mr. Trump as an unindicted co-conspirator in court documents, Justice Department rules strongly discourage identifying people as uncharged wrongdoers “in the absence of some significant justification.” The rules, listed in the United States attorneys’ manual, do not explain what would make it necessary, but require higher-level approval to do so.
Because of those legal and those historical precedents, then, many legal analysts have assumed that even if Mr. Mueller uncovered sufficient evidence to indict Mr. Trump, he — with Mr. Rosenstein, who oversees his decisions — would most likely seek to refer the matter to Congress rather than seeking the president’s indictment, at least while he remains in office.
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