Predictions on the Mueller Report

Episode Notes

Transcript

Lawyer 2 Lawyer – Law News and Legal Topics

Predictions on the Mueller Report

01/09/2019

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Hans von Spakovsky: We need to keep clear that in all of the indictments that have been filed, many of which, like the Manafort indictment, have absolutely nothing to do with the 2016 election. There has been no evidence whatsoever of any kind produced that the President colluded with the Russian government to change the outcome of the election and that was what Mueller was supposed to be investigating.

Frank O. Bowman III: The only person as to whom a report would be issued that did not produce an immediate indictment is the President. The suggestion that once such a report were transferred to the House of Representatives that there would be no forum for the President to respond is frankly ludicrous.

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Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

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J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network and Happy New Year. I am Craig Williams coming to you from very sunny Southern California. I write a legal blog called May it Please the Court and have two books out titled ‘How to Get Sued’ and ‘The Sled’.

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Well, Special Counsel Robert Mueller’s investigation initially was to look at the 2016 election and the Russian government’s efforts to interfere in it, but that investigation has since ballooned in a number of different places. Mueller has expanded the probe and continues to investigate potential financial crimes of Trump associates before the election, alleged conversations regarding Trump’s national security advisor that he had with the Russians during the transition and whether Trump has obstructed justice with his comments and actions related to Mueller’s probe.

Currently at 19 months long the Mueller investigation could be close to wrapping up and Mueller could potentially be releasing his final report. According to an article in Bloomberg, the White House may try to block portions of that report from being shared with Congress and the public in a fight that could end up before the Supreme Court.

So what will the Mueller report reveal? Will it reveal anything? And will we see more sentencing, charges, additional investigations? Today on Lawyer 2 Lawyer we are going to look at the upcoming year of 2019 and get some predictions from our guests on the Special Counsel’s investigation and what could be revealed in the Mueller report.

And to do that we have got a great lineup of guests today. Here to discuss today’s topic is attorney Frank Bowman, the Floyd R. Gibson Missouri Endowed Professor of Law at the University of Missouri School of Law. Frank spent three years as a trial attorney in the criminal division in Washington DC at the Department of Justice and in 1995 and 1996 he served as Special Counsel to the U.S. Sentencing Commission in Washington DC.

And then from 1998 to 2001, he was the Academic Advisor to Criminal Law Committee of the United States Judicial Conference. He currently teaches law in University of Missouri in criminal law, criminal sentencing, and impeachable offenses. He also writes a blog called Impeachable Offenses?

Welcome to the show Frank Bowman.

Frank O. Bowman III: Thanks for having me.

J. Craig Williams: Our next guest is a returning guest, attorney Hans von Spakovsky. He is the Manager of the Election Law Reform Initiative and Senior Legal Fellow at the Heritage Foundation’s Meese Center for Legal and Judicial Studies. Hans is an authority on a wide range of issues, including civil rights, civil justice, the First Amendment and immigration.

And in 2017, perhaps more relevant to our discussion today, President Donald Trump has appointed Hans to the Presidential Advisory Commission on Election Integrity.

Welcome to the show Hans.

Hans von Spakovsky: Thanks for having me back.

J. Craig Williams: Sure thing. Well, let’s kind of turn to you first since you do have a little bit of experience in this particular issue, what’s the current status of things in terms of where this Mueller report has been and then we can talk about where it’s headed?

Hans von Spakovsky: Independent counsels in the past have issued reports, so have special counsels, it’s pretty clear that Mueller is working on one with the team of lawyers he has around him. I have to tell you though that I have a real problem with these kinds of reports and I will tell you why.

If you look at the regular investigations and prosecutions that the US Justice Department does, they investigate a case and if they believe there are indictable offenses, then they indict and they charge and the person who is the target of that then has the ability under our very fundamental due process rights to fight that in court and prove that what the prosecutor is claiming is not true.

(00:05:10)

They don’t issue reports in which they say well, we believe these things happened and we think they were bad, but none of it violates the law and so we are not indicting anybody. The reason for that is clear, because if the prosecutors issued reports like that, the targets would not have the ability to fight this. They wouldn’t have the ability to sue for defamation if they say it’s untrue. It would violate basic due process rights.

And I think that same concept really should apply to this that the special prosecutor, if he has got evidence that indicates that someone should be indicted and criminally charged, then he should do that and he has done it. But to then issue a report on other findings in which there is no violation of law, I think is unfair to individuals who are potentially talked about or targeted because they don’t have the ability to fight that in a court of law and prove that what the prosecutor is claiming is not true. I think that violates fundamental due process rights and I think it’s just bad from a legal standpoint.

Frank O. Bowman III: I think I have to disagree with Hans on a series of points. First, I think he misconceives what Mr. Mueller is up to and is likely to do. On the first point, with respect to any crimes involving anyone other than the President that Mueller concludes were committed and should be indicted, I have no doubt that Mueller will proceed either to indict them as he has done in the past; or alternatively, if he finds evidence of crimes that are outside of his remit, he will do what he did with Cohen, transfer the case over to some other US Attorney’s Office and those cases will be pursued.

The only person as to whom a report is likely to come out that doesn’t produce an indictment is the President. And the only reason that there wouldn’t be an indictment is the Justice Department’s policy against indicting a sitting President.

Now, I have some doubts about the legal correctness of that policy, but I also think that Mueller is quite likely to abide by the OLC’s, the Office of Legal Counsel’s previous conclusions that the US Attorney’s Office, the Justice Department shouldn’t indict sitting Presidents.

That being so, if Mueller concludes that in fact the President of the United States has committed crimes, we have an interesting paradox. The Department of Justice policy tells him that he can’t indict the President during the President’s pendency in office. On the other hand, if he can’t issue a report, if he can’t produce the evidence of presidential criminality to somebody, then that evidence is essentially suppressed during the pendency of the President’s term in office, which is an entirely unsatisfactory circumstance.

And indeed, the suggestion that reports of this kind have not been issued in the past is incorrect. In the case of President Nixon —

Hans von Spakovsky: I didn’t say they hadn’t been issued; I questioned the fundamental fairness of doing so.

Frank O. Bowman III: Well, in the case of, just so that the listeners are aware, in the case of President Nixon, a good portion of the evidence that ultimately moved the House Judiciary Committee to vote out articles of impeachment stemmed from a report issued by the grand jury and released by the presiding judge in that case, which the House Judiciary Committee took and developed further and ultimately produced articles of impeachment.

The essential problem for a situation of potential presidential criminality is how it is to be investigated, and the truth of the matter is that the only institution that is really well suited to investigate complex presidential criminality is the Department of Justice. In theory, the House Judiciary Committee can do that and to some extent they have in the past and may yet, but they are really not set up for it in the same way that professional prosecutors and agents are.

So the question then becomes if those professional prosecutors and agents produce evidence of presidential criminality, do we want a situation where it simply hides from — was simply hidden from the House of Representatives or the public or do we want a situation in which that evidence can be passed along through appropriate channels. And I think the answer to me is plain, that evidence of that kind plainly should go at least to the House of Representatives.

J. Craig Williams: Well, let’s take a look at even what’s going on right now. I mean Hans, we don’t have a report, but we sure have a lot of indictments that tell a story. Is Mueller circumventing that whole issue about report by issuing these indictments and telling this story? I mean we have pretty obvious individual one here. And then is there a way that Mueller would be able to issue his report, the ultimate final report, by means of just issuing of an indictment of somebody like one of his sons?

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Hans von Spakovsky: Well, there are a lot of issues here. I mean, first of all, we need to keep clear that in all of the indictments that have been filed, many of which, like the Manafort indictment, have absolutely nothing to do with the 2016 election. There has been no evidence whatsoever of any kind produced that the President colluded with the Russian government to change the outcome of the election and that was what Mueller was supposed to be investigating.

And in fact, in the indictment of the Russian agents and the Russian company, if you read the indictments in detail, the indictments go into great specificity to explain that these Russian agents, particularly those who were using social media to try to produce chaos and dissension within the United States went to great lengths to hide their Russian identities, including using false and stolen identification. So, so far we have got nothing that really bears directly on what Mueller is supposed to be investigating.

Now, that doesn’t mean and I am not saying that they shouldn’t — these folks shouldn’t be indicted, they should, anyone who has violated the law, but so far he hasn’t produced anything with regard to what he is actually supposed to be investigating. I mean that’s one of the main things.

I also think, with due respect to Frank, that he is confusing criminal prosecutions of individuals within an administration with the impeachment process used for a President. Under the Constitution, the proper organ or entity to investigate a President who people believe have engaged in wrongdoing is not the Justice Department, it is the House of Representatives. It is the House of Representatives that has the only authority to issue articles of impeachment if a President has engaged in high crimes and misdemeanors, and then you have a trial in the Senate. That is not the job of a criminal prosecutor within the US Justice Department.

And as I said before, I think it is unfair to issue a report that cannot be contested or proven in a court of law. I think what the prosecutor needs to do in this case is issue the criminal prosecutions that he can, anything else is up to the House of Representatives to investigate, and if they believe there are sufficient grounds for impeachment, then issue articles of impeachment and have a trial in the Senate, that’s where you prove or disprove the allegations that are made.

Frank O. Bowman III: Well, let me respond to that. I mean I think that Hans is being perhaps a trifle inconsistent, shall we say. The notion that the issuance of a report doesn’t permit any avenue of response would be true if in an ordinary case we simply issued a report and let it lie on the table for people to read it for essentially whatever purpose they took it for, but here we are talking about something quite different.

We are talking about in the case, again to reiterate, in the case of anyone other than the President, what we will surely see from Mr. Mueller is if he discovers evidence of crime he will indict people. We know that because he has already done it. There is no reason to believe he will do anything else in the future.

The only person as to whom a report would be issued that did not produce an immediate indictment is the President. The suggestion that once such a report were transferred to the House of Representatives that there would be no forum for the President to respond is frankly ludicrous. Of course, there will be an avenue for the President to respond, if indeed the House takes up that report, as it surely would, and proceeds to investigate it further, that will be the avenue for the President to respond.

So I think that Hans is perhaps being a little too protective of the President and really ignoring the realities of the situation.

J. Craig Williams: Let’s turn to the question of what we expect to see in the Mueller report. Based on what you have read so far what are you expecting this report to ultimately come down? I mean we have pretty much wrapped a circle around the President, it appears from the latest filing that some of the things that weren’t redacted in it said that Mueller has potentially shared election polling data with Russian operatives or Russian individuals.

Frank O. Bowman III: You mean Manafort?

J. Craig Williams: My apologies, you are correct, Manafort.

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Hans von Spakovsky: Okay. Well, that’s not a violation of any federal election law or any other law that I am aware of, and I say that as a former Commissioner on the FEC, unless Mueller has some kind of evidence, and it’s possible, some kind of evidence that has been produced before a grand jury or secretly by other witnesses in the case, so far like I said there is nothing showing that the President even potentially violated the law.

Now, the only indictments in which that claim is made is in the guilty pleas that Michael Cohen agreed to, most of them had nothing to do with the President, the tax evasion, the bank fraud, but the two instances of supposed campaign finance violations that he agreed to, I have written a lot about this, so have others, the supposed campaign finance violations that Cohen pled guilty to, most former FEC Commissioners believe is not actually a violation of campaign finance law, and in fact, if this had gone to trial.

The one and only time that the US Justice Department tried to prosecute someone claiming that hush money payments were campaign related expenses and therefore the rules and regulations of federal law applied, they lost. And not only that, this was the prosecution of John Edwards, but the FEC, which is responsible for enforcing civil enforcement of the Federal Election Campaign Act, also took the position that such payments were not campaign related expenses; therefore, the rules didn’t apply.

So the idea that the President violated campaign finance laws, I think just doesn’t fly either.

Frank O. Bowman III: I mean let me throw out another point. Let’s get back to what’s going to happen with this report and the information, whatever information is contained within it gets before the appropriate body, which I think is undoubtedly the House of Representatives, there are some serious questions about what happens with any report that Mueller writes, because he himself doesn’t have the ultimate decision about what to do with it.

The decision about what would happen with any report essentially lies with the Attorney General or at this point Mr. Rosenstein, who stands in the Attorney General’s position, but let’s assume for the moment that Rosenstein is either not in his current position when the report issues or that he or the then Attorney General decides that they are going to essentially suppress whatever Mueller puts out. Interesting question arises as to how that report proceeds from that point.

The very interesting question about whether, as I think is the case, the House of Representatives can subpoena everything in the Mueller report. Now, certainly the White House is suggesting that they would try to resist any such subpoena. It’s a little bit hard to understand on what grounds they would do that, but irrespective of whether one likes such a report or not, once it exists, my opinion, I would be interested in Hans’, is that whatever is in that report is ultimately going to make its way into the hands of the House Judiciary Committee, which is now in the hands of Democrats who have subpoena power.

Hans von Spakovsky: Well, look, I think it will get out because as you know it’s very difficult to keep anything from leaking in Washington DC, but from a legal standpoint, certainly House Committees have subpoena power, but subpoenas have to be enforced under federal law by the US Justice Department, and during the Obama administration the Justice Department on more than one occasion refused to enforce subpoenas that had been issued against the Justice Department, not only that, but when individuals were held in contempt, including Eric Holder, for refusing to respond to a subpoena for documents related to Operation Fast and Furious, the Justice Department refused to enforce it.

So yeah, the House can go to court, but it’s a long involved process for them to get around the fact that they are subject to the Justice Department being the force behind enforcing subpoenas, and if the Justice Department says we are not going to enforce it, they might not officially ever get the record.

Does that mean they will get it to 19:23, probably?

Frank O. Bowman III: Is it your position that the House doesn’t have the right to obtain that material? After all, you just said a while ago that the appropriate venue for determining whether a President is impeachable is the House of Representatives.

Hans von Spakovsky: What I said was that a criminal prosecutor is a member of the executive branch; he is not an agent of the legislative branch. It is the legislative branch that has the responsibility for doing any kind of investigation and otherwise doing all the proceedings of impeachment.

J. Craig Williams: Before we move on to our next segment we are going to take a quick break and hear a message from our sponsor. We will be right back.

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J. Craig Williams: And welcome back to Lawyer 2 Lawyer. I am Craig Williams. We are joined by attorney Frank Bowman, the Floyd R. Gibson Missouri Endowed Professor of Law at the University of Missouri School of Law and our other returning guest attorney Hans von Spakovsky. He had to leave during the break, but we were lucky enough to record his final thoughts and contact information which we will edit at the end of the show.

You will remember that Hans was the Manager of the Election Law Reform Initiative and Senior Legal Fellow at the Heritage Foundation’s Meese Center for Legal and Judicial Studies.

Well, Frank, let’s talk about what kind of predictions we expect to see coming out of this Mueller investigation. I mean are we going to see a recommendation that is essentially high crimes and misdemeanors that if it’s taken up by the House and the Senate would justify a conviction or an indictment? What are we going to see?

Frank O. Bowman III: I don’t think we know, because the situation is somewhat unprecedented. The only analogous situation, as I mentioned in the first half, is the Nixon situation, in which the then special prosecutor Leon Jaworski asks the presiding judge of the grand jury to release a report that — a very succinct, factual report that he and the grand jury put together and have that transmitted to the House of Representatives.

Jaworski made no recommendation with respect to impeachment or non-impeachment. He simply laid out some facts and listed a variety of kinds of evidence that the House of Representatives could look at to determine whether those facts were proven.

My suspicion is that to the extent that Robert Mueller concludes that there is evidence of that kind implicating the President in criminality and he also concludes, as you must expect he will, that he is not empowered to indict the President directly, I suspect any report that he will write would be of that type.

Now, I want to return to Mr. Spakovsky, Hans Spakovsky’s position whichm if you pick it apart a little bit, is really quite peculiar, because what he is suggesting is that we start with a position that Mueller is investigating any crimes that may involve broadly in the connection between the Trump campaign and Russia.

Let us assume for the moment that Mueller concludes that crimes were committed and were committed by the President within that ambit. Hans’ position seems to be that because by department policy Mueller can’t prosecute the President while he is in office, he must also essentially suppress the information, that he has to essentially keep quiet about it and not tell anybody else. Now, that seems to me to be entirely preposterous.

The other implication of Hans’ position I think, which he is referencing there in the end in our discussion about subpoenas, is that somehow the House either can’t or shouldn’t or won’t or would be prevented from subpoenaing the evidence that Mueller has provided. Now, I can agree with Hans that as a general matter what prosecutors should do when they discover crimes is they should prosecute people and they shouldn’t issue reports, that’s absolutely right as a general matter.

But if you have this special situation where in the course of investigating crimes a prosecutor finds evidence of presidential criminality, but by policy is prevented from proceeding in the normal means, then the place for that evidence to end up is, as Hans suggests, the House of Representatives, but it’s quite crazy to suggest that even though the House of Representatives has investigative power to look into that sort of thing, Hans seems to be suggesting that the House of Representatives can’t subpoena the evidence that Mueller has discovered. Now, that’s just mad. And even though he denies being protective of the President, that’s simply trying to protect the President and his party against whatever it is that Mueller may find.

Now, all that having been said, it’s quite possible that Hans is right that in the end Mueller will find no evidence of presidential criminality whatsoever or in any case no evidence that falls within his original remit of looking at Russian collusion, and I think that people who are not very fond of the President have to recognize that that’s a very real possibility. And if Mueller doesn’t find any such thing, that’s what he is going to say in the report.

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J. Craig Williams: Let me ask a kind of a generic question here and perhaps it’s an everyman question. Trump has bellowed that there is no collusion. Is collusion a crime or should he be saying conspiracy?

Frank O. Bowman III: Well, collusion is not a crime, no, but it’s a red herring, because there are a whole variety of other things. First of all, because the Department of Justice is not going to indict this President, I suspect, because of its own internal policies, the question in any case isn’t whether the President committed a crime; the question is whether the President committed impeachable offenses, committed conduct which is impeachable under the Constitution. And that doesn’t depend on whether or not he committed a statutory crime.

There are lots of things that a President can do that are not necessarily statutory crimes which may well be impeachable and that’s the real question that ultimately the House will have to look at.

Now, sometimes when Presidents commit crimes, they are impeachable, but sometimes when they commit crimes they probably aren’t; President Clinton being a pretty good example of it. Isn’t any serious question that Clinton committed perjury in front of a grand jury, but ultimately the Senate of the United States decided that that particular type of perjury was not a sufficient consequence to be impeachable or at least to be convictable; he was impeached by the House.

So we need to be careful not to confuse the commission of crimes with the commission of impeachable conduct and it may very well be that a lot of — various of the things that he did, that Trump did, in connection with the election fall into the impeachable category.

J. Craig Williams: Great. Well, it looks like we have just about reached the end of our program. And at this point we will insert the final thoughts that we prerecorded from Hans von Spakovsky as the Manager of the Election Law Reform Initiative and Senior Legal Fellow at the Heritage Foundation’s Meese Center for Legal and Judicial Studies. Hans.

Hans von Spakovsky: Look, I don’t want people to get the wrong idea. If any criminality occurred, if there were violations of federal law, that definitely should be investigated by the US Justice Department and it should be prosecuted, but when it comes to the President, it’s very clear from I think the Constitution and prior opinions of the Justice Department of both Democratic and Republican administrations that a sitting President cannot be criminally charged or indicted.

The only thing that can be done with a President is that is up to the House of Representatives and the Senate to investigate any potential crimes that they believe should result in the President being removed and that’s the business of the legislative branch. And a prosecutor in the Justice Department is not an agent of the legislative branch; they are the ones that should take responsibility for that if there was any wrongdoing that occurred in the case. Thanks very much.

J. Craig Williams: Thanks you. And Hans, how can our listeners reach out to you if they would like to get a hold of you?

Hans von Spakovsky: Sure. They can go to the website for the Heritage Foundation, heritage.org, and it’s got my phone numbers and email address there on the website.

J. Craig Williams: Great. Thanks for being on the show, Hans.

Frank, let’s turn to you and talk about your upcoming book. I think it’s probably an appropriate place to talk about it here, ‘High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump’, in your conclusion can you kind of bridge that gap for us and say whether or not the election issues that appear to be in front of us about the 2016 election and Russian involvement, whether they are going to end up being impeachable offenses? And then let’s wrap up with your contact information so our listeners can reach out to you if they would like to discuss this with you further.

Frank O. Bowman III: I think Hans is right in this respect. I don’t think we have anywhere near enough information to conclude whether or not President Trump engaged in either crimes or impeachable conduct with respect to contact with Russia. There is an awful lot of smoke out there, but I don’t think we know the answer right now and I think anybody other than Bob Mueller and his team that says they do is blowing smoke.

Now, that being said, in my own view and as the book concludes, I think there are quite a number of things that President Trump has done, not in secret and don’t need to be investigated, but right out in the open that would amount to impeachable conduct for a House and a Senate inclined to proceed on them, but those I suspect are the subject of another show and I know we are running out of time.

J. Craig Williams: Thank you very much for that Frank. How can our listeners reach out to you if they would like to get a hold of you?

Frank O. Bowman III: They can certainly reach me here at the University of Missouri, at my email, which is [email protected] or you can read about my ruminations on impeachment on my blog, impeachableoffenses.net. So I would be happy to get some new readers for the blog and also to hear from any of your listeners who would like to contact me.

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J. Craig Williams: Great. Thank you. And your last name is Bowman, right?

Frank O. Bowman III: Correct.

J. Craig Williams: Wonderful. Well, that brings us to the end of our show. If you have liked what you heard today, please rate us in Apple Podcasts. You can also visit us at legaltalknetwork.com or you can leave a comment on today’s show and sign up for our newsletter.

I am Craig Williams. Thanks for listening. Join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.

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