INTRODUCTION TO VOLUME II
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First, a traditional prosecution or declination decision entails a binary determination to
initiate or declin e a prosecution, but we determined not to make a traditional prosecutorial
judgment. The Office of Legal Counsel (OLC) has issued an opinion finding that "t he indictment
or criminal prosecution of a sitting President would impermissibly undermine the capacity of the
executive branch to perform its constitutionally assigned functions" in violation of "the
constitutional separation of powers." 1 Given the role of the Special Counsel as an attorney in the
Department of Justice and the framework of the Special Counsel regulations , see 28 U.S.C. § 515;
28 C.F.R. § 600.7(a), this Office accepted OLC's legal conclusion for the purpose of exerc ising
prosecutorial jurisdiction. And apart from OLC's constitutional view, we recognized that a federal
criminal accusation against a sitting President would place burdens on the President's capacity to
govern and potentially preempt constitutional processes for addressing presidential misconduct. 2
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Third, we considered whether to evaluate the conduct we investigated under the Justice
Manual standards governing prosecution and declination decisions, but we determined not to apply
an approach that could potentially result in a judgment that the President committed crimes. The
threshold step under the Justice Manual standards is to assess whether a person's conduct
"constitutes a federal offense." U.S. Dep't of Justice, Justice Manual§ 9-27.220 (2018) (Justice
Manual). 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 .
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Fourth, if we had confidence after a thorough investigation of the facts that the President
clearly did not commit obstruction of justice , we would so state. Based on the facts and the
applicable legal standards , however , we are unable to reach that judgment. The evidence we
obtained about the President 's actions and intent presents difficult issues that prevent us from
conclusively determining that no criminal conduct occurred. Accordingly, while this report does
not conclude that the President committed a crime, it also does not exonerate him.
