TF 08: The Mueller Report: And Now What?
Harry Litman [00:00:07] [MUSIC] Welcome to a special episode of Talking Feds, a prosecutor's roundtable that brings together prominent former Department of Justice officials for a dynamic discussion of the most important legal topics of the day. And today we have maybe the most important legal topic of the year or the Trump presidency because we finally have the Mueller report in our hands, and we finally have Bill Barr's account of exactly what he did with the Mueller Report, and we're going to talk about both. Now I'll say we've had the report for oh an entire half hour, so these will be top line reactions, and there will be more. This is Harry Litman, a former U.S. Attorney and Deputy Assistant Attorney General. [END MUSIC]
Harry Litman [00:00:57] I'm joined by Amy Jeffress, who you already know at Talking Feds, a partner at Arnold and Porter, the former DOJ attache to the U.S. Embassy, and a longtime Assistant U.S. Attorney. And Paul Fishman, a partner at the law firm of Arnold and Porter, like Amy, Paul was the United States Attorney for New Jersey from 2009 through 2017, and has also been a senior DOJ official for many years. And we're pleased to welcome to the program for the first time Jennifer Rodgers, a lecturer at Columbia Law School and the former Deputy Chief Appellate Attorney at the U.S. Attorney's Office for the Southern District of New York.
Harry Litman [00:01:43] All right, let's skip the patter and dive right in. So today we had, first at 9:30, before the report had issued, a remarkable press conference from the Attorney General, who laid out the conclusions of the report, gave a very strong defense of the president in the president's language, of "No collusion, no collusion, no collusion," and then switched to obstruction and made it clear that Special Counsel Robert Mueller simply had not bottom lined, and therefore he, Barr, and Rod Rosenstein, who stood behind him for the entire press conference, had taken it upon themselves to say no obstruction, because Barr said this is a binary decision, yes or no. And he said no.
Harry Litman [00:02:38] And then, an hour later, we have the actual report, 400 pages coming out in Volume One about collusion or the Russian effort, Volume 2 about obstruction. Relatively fewer redactions than we expected. And the headline at least on obstruction was Mueller's exposition of ten different possibly obstructive incidents by the president, some of them new, all of them ugly. But ultimately, according to Mueller, given the difficult legal and factual decisions, something he just couldn't bottom line on, and so he didn't. Not so he could leave it to Congress, but he just couldn't bottom line. Although pointedly he said, "We're not saying that we're exculpating the president. If we thought that, we would- if we had confidence that he did not commit obstruction, we would so state. And we are unable to reach that judgment.".
Harry Litman [00:03:45] OK. So that's where things stand. Excuse my long intro, and we now want to, let's start with bottom line conclusions. And why don't I stumble ahead and just say I think this is a really sort of unsettling and disappointing day in which nobody comes out looking well. The Attorney General seems to be shilling for the president in his press conference and he did it obviously to precondition the report itself. Rod Rosenstein seemed mute behind the Attorney General, lending his own credibility to some of the conclusions and the whole presentation. Even Bob Mueller comes off in my view as anomalous or puzzling for not reaching a bottom line decision. And obviously the president himself is dirtied up with some new incidents of really ugly behavior, even if Mueller says it doesn't reach obstruction itself. So I think this is a really rough day. And the biggest day of the probe where we could have hoped for some real closure in satisfying ways, I think leaves me at least very troubled. Anyone else have top line thoughts to offer?
Paul Fishman [00:05:12] Well, Harry, this is Paul, let me respond to the notion about what Bob Mueller did and didn't do with the obstruction stuff. You know the, there is a widespread discussion always in the justice system that people are supposed to be treated the same. And the truth is the elements of obstruction of justice are the same for the president the United States as they are for a bank teller or for an auto mechanic or for the CEO of a corporation. The elements of the crime are the same, you have to do something with the corrupt intent, with the intent to impede an investigation. And, and the standard of proof is the same for everybody, it's always beyond a reasonable doubt, the highest standard of proof in our justice system, but the standard of proof that we use in every criminal case.
Paul Fishman [00:06:02] But the truth is that there's an old saying, if you're going to shoot the king, you have to kill the king. And I think there is a sense among lots of prosecutors, and probably among the people at the top of the Justice Department today, that if you're going to bring a criminal case on obstruction of justice against the president of the United States, it better be a great case, it better be a case that looks a little bit like a lay down hand. And I think with Bob Mueller was saying in the report is, this is not that. There is a lot of evidence about what the president the United States intends to do here. And I don't have any doubt looking at the excerpts of the Mueller report that I've had five minutes to look at, that, that, and we'll all be looking at for a year, for a year or two, that the things that the president did, the attempt to squelch the Flynn investigation with Jim Comey the day after he found the White House found out that Michael Flynn had lied to the FBI, the repeated efforts to get rid of Jeff Sessions, the idea that people would not necessarily tell the truth, his willingness to let people he or in his circle not tell the truth, like Michael Cohen. All that stuff suggests to me that the president knew exactly what he was doing. But at the end of the day, it's a very hard case to make, obstruction of justice. It's just in the end about somebody's intent. It's not like he was standing in a bank with a gun, right? He took a lot of actions that you know isolated and by themselves don't necessarily look like that.
Paul Fishman [00:07:38] And so I think what Bob Mueller was saying in the end is, 'I don't think I could stand before a jury and convinced twelve people, all Americans, that what the president did here, he did was corrupt intent beyond a reasonable doubt.' Under those circumstances, the Department can't bring a case. But that doesn't mean that the president didn't commit the crime, it just means that Bob Mueller didn't, wasn't satisfied that he could prove that beyond a reasonable doubt.
Harry Litman [00:08:05] All right well fair enough. But doesn't that- look, that raises two questions, it seems to me, Amy and Jennifer, one is: all right why isn't Mueller right that this is binary? If you conclude you can't prove it beyond a reasonable doubt, principles of federal prosecution, why doesn't that mean you say no? Why do you continue to straddle? And then second, what about this decision that people will be debating now for years, to not try to get Trump's testimony?
Jennifer Rodgers [00:08:35] I think that Barr is right in a sense, that it's binary. Prosecutors make decisions, you have to decide whether you're prosecuting or whether you're not prosecuting. So that's true as far as it goes. You know the problem is here we're not only talking about using what the Mueller team uncovered in criminal court, it's also going to now be used by Congress to decide to do whatever it is that they're going to do, whether it's impeachment proceedings or just using some of that information as launching points to continue their hearings and so on for oversight purposes. So you know there's a lot of room between nothing was done improperly, or nothing wrong was done here, and proof beyond a reasonable doubt, as Paul was saying.
Jennifer Rodgers [00:09:18] So you know I think people are going to find a lot in the report to point to to say, the president and the people around him did not act appropriately here, they did a lot of things that were wrong and improper and unethical and potentially illegal. But you know, Barr's right, you have to make a decision about prosecution one way or the other, so that decision is made. And then you know you shift over to using the information uncovered in the investigation for these other purposes. And I do think that Barr was misleading about some of those things. I mean you know he was asked point blank whether Mueller left this decision to Congress, and he said, "No, he didn't do that." And the report basically has Mueller talking about you know, "Some of this information can be used by Congress for their purposes." So I think you know Barr, in his zeal to give the president the talking points that the president wanted, has glossed over what Mueller actually did. And you know look we can all read it for ourselves. The problem is the vast majority of the public is not going to take the time to do that, they're just looking for the soundbites that they got from Barr this morning.
Amy Jeffress [00:10:25] Let me, I think that there is an implicit referral to Congress of some of these issues in the report. And I just want to read a line that is in the summary section of the obstruction of justice section of the report, that says - and it's in the paragraph on constitutional defenses that are raised by the fact that the president is the head of the executive branch - and the report says, "With respect to whether the president can be found to have obstructed justice by exercising his powers under Article 2 of the Constitution, we concluded that Congress has authority to prohibit the president's corrupt use of his authority in order to protect the integrity of the administration of justice." So when I heard that the Mueller, that Mueller had declined to reach a conclusion on obstruction of justice, that's the kind of line that I was expecting in the report, that in fact they, the special counsel decided that this was really a matter for Congress and not the executive branch. Now, Attorney General Barr took that in a different direction, but I think the report is basically suggesting that these issues are for Congress to act upon, rather than the executive branch. And so it is up to Congress now to do so.
Harry Litman [00:11:40] Yeah, or at least it's leaving it open. Actually that line I found really reassuring, my biggest concern was that Barr was going to announce that he had done this based on his I think kooky view that, that he's gone back and forth on, that when you exercise enumerated powers, you can't be obstructing. And so they refer to, [00:12:02]"Oh I'll see," [0.4s] these questions and said that that's not right, and Barr specifically said at the presser that he hadn't based the decision to to just say no obstruction on that. But of course Mueller had made it easy for him by being perfect, in perfect equipoise, you know if you if you then apply that, the binary principle to that, you, you get no prosecution.
Paul Fishman [00:12:31] I guess I'm not sure what people would have liked to see from Bob Mueller. Bob Mueller clearly didn't think he had a prosecutable case yet, right? So that's effectively what he has said. And he I mean points out the difficulties, and if he was going to recommend that the President of the United States be prosecuted, I think he would have said that. What what what this doesn't say is that, he doesn't recommend that he not be prosecuted. I think this report is simply written, not really for Bill Barr, it's really written for Congress and the public, which is sort of an extraordinary thing for a guy like Bob Mueller, right? Because that's not the way his whole career has been oriented. I think he recognized here the enormous implications of what his final report would mean.
Amy Jeffress [00:13:16] Right. Let me let me read just a better line that goes right to your point, Paul, "The conclusion that Congress may apply the obstruction laws to the president's corrupt exercise of the powers of office accords with our constitutional system of checks and balances, and the principle that no person is above the law." Basically what they're saying is, 'There are a lot of issues that we haven't sorted through,' and that's a little bit odd. You know, "The evidence we obtained about the president's actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment." So they didn't resolve the issues, but they also recognize that they're not really making a traditional prosecutorial judgment because this is the president. I think this is an invitation for Congress to take all of the information that they have collected and have hearings and debate and do what Congress should do in this kind of you know just unbelievably troubling situation.
Harry Litman [00:14:09] That makes that makes a lot of sense to me that it's implicit with turning it over to Congress. And there was a subtext to the press conference. I think we have a little bit of audio on this, where Barr was trying to say there's one view of this report that it's basically for the public and Congress now, and Barr was insistent, under the regulations, and sort of pugilistic that this is his report and he was by his own you know Grace giving up some information.
Journalist [00:14:42] "There's a lot of public interest in the absence of the special counsel and members of his team. Was invited to join you up on the podium? Why is he not here, this is his report obviously that you're talking about today?".
Bill Barr [00:14:51] No it's not. It's a report he did for me, as the Attorney General. He is required under the regulation to to provide me with a confidential report. I'm here to discuss my response to that report, and my decision, entirely discretionary to make it public, since these reports are not supposed to be made public. That's what I'm here to discuss."
Paul Fishman [00:15:12] So I think technically that's true, but that's not really the point, right? I mean technically the regulation does say it's a report to the Attorney General, but it's hard to imagine that in cases in which the appointment of Special Counsel is warranted under the regulations that that 99 percent of those cases will involve investigations of such huge public interest that the Attorney General ultimately will have very little discretion about whether to make it public or not. That's exactly what happened here. But because it's a report that, if Bill Barr's right, that it is a report for him, that sort of makes Bob Mueller's statements even more stunning. Because Bob- why would Bob Mueller say to Bill Barr, 'This is really a matter for Congress. It's not really a matter for us.' If you think that report was going somewhere else. This is really I think a invitation by Bob Mueller to say, 'Look! Prove beyond a reasonable doubt, criminal court, twelve jurors, unanimous. That's really hard. But really this is of such importance, and the president's intent is corrupt intent of such significance that maybe someone else wants to take a look at it. The Congress doesn't need Bob Mueller to tell them what their power and their rights are, to investigate this. But Bob Mueller said anyway. That to me is like a big hint and a big suggestion of what he thinks.
Harry Litman [00:16:42] There were among these 10 episodes were some things we didn't know before, and they are very hard to square with, to exculpate, as, as Trump would have it. So we now have much more proof that Barr- excuse me, that Trump was really pushing on White House counsel Don McGahn to have him oust Mueller himself, and then really pushed on him to lie about it. It is hard to rationalize that kind of conduct as being anything other than obstructive. And Barr's notion here was, 'Well maybe it's not obstructive because Trump was so overwrought, he was so angry that he, he just felt that this was unfair.' But of course there's nothing inconsistent about that kind of anger and [00:17:46]peep, [0.0s] which are characteristically Trumpian, and an effort to obstruct justice.
Amy Jeffress [00:17:51] So, the defending of the president in light of these findings is unfortunate because what you want from the Attorney General at this moment in time is you want someone who is standing up for the Department and its independence. And so I think that that kind of remark, which was gratuitous, undermines the Attorney General's authority and ability to lead the Department in an independent way. So it's unfortunate that he chose to make those comments.
Harry Litman [00:18:23] Yeah, I think we all- everyone agree with that?
Paul Fishman [00:18:25] Yeah, I think what's ironic about this is that the thing that Jim Comey was criticized for was when he, when he held his press conference in the summer of 2016, was saying, 'I don't think there's enough here to bring a prosecutable case. But Hillary Clinton did some really terrible things.' Reckless, whatever the words were that he used. Here, Bill Barr has said, 'We don't have enough evidence to make a criminal case. But let me tell you why this guy's basically OK.' Which is sort of the opposite, but equally bad, right? The goal of the Justice Department is to say, 'Look we don't think there's enough to bring a criminal case,' and maybe, 'Here's why we don't think this is a criminal case.' But to sort of stray over the line, to basically start talking about how the president was overwrought, upset. I mean we're not talking about the difference between premeditated murder and sort of killing someone in a crime of passion, both of which would be wrong. Right? All he's saying is that, 'The president didn't think about it for a really long time before he decided to kill this investigation.' And that's not really-.
Jennifer Rodgers [00:19:33] Well the other thing is that after he said that, 'Oh how overwrought the president was, how angry, how frustrated,' all that, he went on to say, 'And notwithstanding that he cooperated to the fullest extent. He provided millions of documents, he provided all the witnesses they wanted. You know, he did everything they wanted him to do, and therefore we take that into account when determining what his intent was.' And that's just not true. I mean we know that the president didn't sit for an interview on collusion. We know that his written responses were lawyered up to the hilt. We know that when he switched legal teams, they very much changed their stance on cooperation and whatever cooperation had been forthcoming when Ty Cobb was there, it slowed to a trickle. So you know even the point that Barr was trying to make there, that you know intent is is driven in their minds in part by the cooperation given by the White House, is based on a false premise.
Harry Litman [00:20:29] And we also know that he did engaged in this you know 22 month tirade against the probe itself, and that would have been something one hoped that that Barr would be there to sort of stand up against and defend the troops, but he he didn't do it.
Amy Jeffress [00:20:46] One of the questions that we were waiting to have answered is why the special counsel team did not subpoena the president, and they do answer that, and it's what I think we would have expected. They say that he did not agree to provide written answers to questions on obstruction topics or questions on events during the transition. It says that he declined to be interviewed. And then they say, "Ultimately while we believed that we had the authority and the legal justification to issue a grand jury subpoena to obtain the president's testimony, we chose not to do so. We made that decision in view of the substantial delay that such an investigative step would likely produce at a late stage in our investigation. And then in addition we also assessed that based on the significant body of evidence we had already obtained of the president's actions, and his public and private statements describing or explaining those actions, we had sufficient evidence to understand relevant events." So, I think they're saying it wasn't really worth the trouble to do that, which is what we all expected they might say.
Harry Litman [00:21:47] Yeah but what an ironic statement, 'We have sufficient evidence, we understand relevant events.' What did, what can that mean except we know the intent, and then when it comes to the punch line, it's, 'Oh but we can't bottom line on the intent.'.
Amy Jeffress [00:22:01] Right. So just let me just go back quickly to your point, that you're a bit disappointed. I think that there are a lot of facts in here and as I'm just skimming through there is a lot of detail and a lot of information. I wouldn't be quite so hard on the special counsel and his team as you were, although you're criticizing really his bottom line failure to draw a conclusion, which I think is fairly left to the role of Congress. But the report is full of lots of detail about you know everything within their investigation. I think this is going to be you know, it's, it's an amazing effort and it looks like a very thorough and impressive report to me.
Harry Litman [00:22:35] Right.
Paul Fishman [00:22:35] There is also some irony in the Attorney General saying, 'The president was entirely cooperative.' And the lawyer who worked for the Attorney General saying, 'Yeah, maybe he was cooperative to a certain extent, but the real reason we couldn't interview him is he was going to fight it so hard and so long that we would never-'
Amy Jeffress [00:22:54] Let me just add, there's a redacted line here when it says, "We also sought a voluntary interview with the president. After more than a year of discussion, the president declined to be interviewed." And then there's a sentence, "Redacted for grand jury," which I don't know.
Harry Litman [00:23:07] Wow.
Paul Fishman [00:23:08] Well maybe, maybe, obviously they didn't subpoena him, but but who knows what that means.
Amy Jeffress [00:23:13] I would like to know. [Laughter]
Paul Fishman [00:23:16] But also here's the other thing. The reason, the reason that his legal team kept saying that the president wasn't going to be interviewed, was he was afraid that, they were basically afraid that he couldn't tell the truth and at interview, and he would somehow get tricked by Bob Mueller in the interview. I mean, that is the leader of the free world not being able to sit down with another government official to answer questions about what he was thinking at the time that he made certain decisions. That's-.
Harry Litman [00:23:45] Now we will probably never get it. All right, I, you know I think, we'll have on Talking Feds much more about this, maybe in the coming days, but I think that's all that we have time for now. Let's try to wrap it up with that- well, I'll, I'll frame this question for, for everyone. Will Barr's effort, if we see this way kind of work, is there enough here, between the Mueller's failure to bottom line and Barr's decisive conclusion of no obstruction, to kind of let the air out of the tires somewhat in Congress, and make some sort of middle ground, Senators and Congressmen kind of see this as closed? Or on the contrary, do we have fuel on, do we have a conflagration here and it's going to be you know hot and heavy in Congress for months to come?
Paul Fishman [00:24:49] I think there'll be no appetite on the Republican side for anything, and I think that will, that will will probably quelch entirely the Democrats' effort to start impeachment proceedings-
Harry Litman [00:25:02] Well, and how vigorous will they be in investigations? Obviously they'll be calling them, but is this something, is right now, has the sort of overall leverage, even you know 55-45, gone to Trump, successfully, if that was Barr's intent?
Jennifer Rodgers [00:25:20] I think so. I think if, if the tide was going to shift, it needed to be a real blockbuster revelation. I mean if the report had tons of new evidence that we had never heard before and that was really, really bad for the president, then I would think that the momentum swings you know to the anti-Trump side. But as it is, with just a bit more explanation of mostly what we already knew, I think that Barr will have been successful in kind of tamping down the outrage about this. And you know the Dems will continue to push in the House, but ultimately I think, I think that that he's escaped the worst of it.
Amy Jeffress [00:25:58] There are a lot of facts in here that are upsetting, and so I don't think that this is a victory for the president by any stretch of the imagination. And, but on the other hand, the investigation has been very thorough and it may be better for Congress to to accept the findings, to take whatever implications they have and hold hearings on that. You know, how do we prevent interference with our election system? And what they do with obstruction really is a political matter and that's always been the case. And then they need to take the politics into account, and I'm not an expert on the politics so I'll leave that alone. But I think this report is not, it's not an exoneration of the president or the people around him in the way that's been portrayed.
Harry Litman [00:26:45] I'll just say I you know, I 100 percent agree, but the way things have been set up with such heavy anticipation of the report that for it to come out now it will be a challenge for Congress - one that they absolutely should rise to, but we'll see if they will - to give the independent political analysis and the ultimate determination of impeachability [MUSIC] that really is incumbent on them for this kind of serious conduct, but there's going to be a general refrain from the Republicans you know, "Closed case." And so it'll make the whole thing slightly tilted uphill battle.
Harry Litman [00:27:33] Thank you very much to Paul, Amy and Jennifer for convening on such short notice and such an important day. And thank you very much to all of you for listening to Talking Feds. If you like what you've heard, please tell a friend to subscribe on Apple podcasts or wherever they get their podcasts, and please take a moment to rate and review this podcast.
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Harry Litman [00:28:16] Talking Feds is produced by Jennie Josephson, Rebecca Lopatin, Dave Moldovan and Anthony Lemos. David Lieberman is our contributing writer. Production assistance by Sarah Phillipoom. And thanks to the incredible Philip Glass, who graciously lets us use his music. Talking Feds is a production of Dalito LLC. I'm Harry Litman, see you soon. [END MUSIC]