Inside the Mueller Report

Episode Notes

Transcript

Lawyer 2 Lawyer – Law News and Legal Topics
Inside the Mueller Report
04/26/2019

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Hans von Spakovsky: There was no actual obstruction of any kind, the Presidents extensively cooperated with the investigation. They produced almost a million documents to the Special Counsel and he did not assert executive privilege, which he could have done which prior Presidents have done. So Mueller had access to folks inside the White House from the campaign including the White House Counsel.

Frank O. Bowman III: There were ample reasons, ample evidence to conclude that in fact corrupt intent could be proven by Mr. Trump.

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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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1. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I am Craig Williams coming to you from Southern California. I write a legal blog named ‘May It Please the Court’ and have about two books titled ‘How to Get Sued’ and a Christmas children’s book called ‘The Sled’.

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Well on April 18th the redacted version of the eagerly anticipated Mueller report was released to the public. After reading the report some agree with the President that he’s free and clear of charges of collusion or conspiracy with Russia or obstruction of justice. Others disagree and point to actions by the President and his staff that does anything but exonerate him.

The Mueller report has concluded with the now-infamous quote “while this report does not conclude that the President committed a crime, it also does not exonerate him”.

Well today on Lawyer 2 Lawyer we’re going to take a look at the redacted version of the Mueller report, we will discuss the — if the report revealed anything, the impact on the presidency and whether we will see impeachment hearings from Congress in the near future.

To do that we’ve got a great lineup of guests today. We’ve invited back the guests who appeared on our January 2019 show, ‘Predictions on the Mueller Report’, and today we’re going to continue that conversation.

To do that is Frank Bowman, the III, Professor of Law at the University of Missouri School of Law. Frank spent three years as a trial attorney in the criminal division in the Washington DC. And in 1995 and 1996 he served the special counsel for the U.S. Sentencing Commission in Washington DC. He currently teaches criminal law, criminal sentencing and impeachable offenses. He’s the author of ‘High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump’. It’s out of Cambridge University Press this year.

And welcome back to the show Frank.

Frank O. Bowman III: Thanks for having me.

1. Craig Williams: And our next guest is also returning attorney Hans von Spakovsky, he’s 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. In 2017 President Donald Trump appointed Hans to be the Presidential Advisory Commission on election integrity.

Welcome back to the show Hans.

Hans von Spakovsky: Craig, thanks for inviting me back.

1. Craig Williams: Well Hans, let’s turn to you first and I think perhaps we turn to Volume II of the Mueller Report since that seems to be where the hotbed of discussion focuses and let me just give us a background, backdrop of what the general conclusions perhaps from the executive summary were in the Mueller report for our listeners.

Hans von Spakovsky: Sure. It’s interesting because Volume II covers the possible obstruction of justice charges and Special Counsel Bob Mueller said that he wasn’t going to come up with a final legal conclusion or recommendation. I think that’s because of the some of the constitutional and other legal issues involved and he would leave that up to the Attorney General by simply laying out the evidence on both sides of it, that’s very much in contrast to the Volume I where he concluded that there was no evidence of collusion between the Trump campaign and the Russian government.

Now look it’s very clear that Volume II does not produce a very flattering view of the inside of the Trump administration particularly the White House. I mean it shows everything from angry ranting by the President to chaos, pettiness, self-centeredness, I mean there’s a lot of adjectives you can use to characterize it.

(00:05:08)

But I think the key thing that supports the Attorney General’s conclusion and the conclusion of the Attorney General came from was that there wasn’t evidence sufficient for a prosecution for obstruction of justice is a couple things.

First, there was no actual obstruction of any kind. The Presidents extensively cooperated with the investigation. They produced almost a million documents to the Special Counsel and he did not assert executive privilege which he could have done which prior Presidents have done.

So Mueller had access to folks inside the White House and from the campaign including the White House Counsel. What also apparently supported the Attorney General’s conclusion on this is the fact that if you’re going to prove obstruction of justice, look it’s very true, you can prosecute obstruction of justice even if there’s no underlying crime that someone was trying to obstruct an investigation of, but it’s much more difficult to do that.

Here, there was no underlying crime and also the AG concluded there would be very, very difficult if not almost impossible to prove a corrupt intent and that’s necessary for a prosecution for obstruction of justice. What apparently drove the President was his anger and frustration over the fact that he was being accused of a crime that Mueller has concluded he did not commit and he is thinking that this was a bogus collusion allegation being made up by his political enemies.

The point is that proving a corrupt intent, trying to obstruct an investigation to cover up a crime just wasn’t there. So I think it’s hard to question somehow the AG came to the wrong conclusion on that.

1. Craig Williams: Well, Frank, I know you’re going to have some comments about what Hans just said, but before you substantively respond, I know, but before you do, give us the constitutional framework that we’re operating in here. What are the constraints that we have, why is it that Mueller dis-said what he said, give us that kind of outline so that we know where we are.

Frank O. Bowman III: Well, I don’t know that there are any necessary constitutional constraints on Special Counsel Mueller in terms of what he reported here. The argument that there are constitutional constraints stems from the notion that somehow or other it is unconstitutional to prosecute a sitting President for a crime. That is a remarkably debatable point. What is clear however is the Department of Justice has adopted a policy not to prosecute sitting Presidents and to defer any such prosecutions until after the President is out of Office.

That is interestingly a legal point which Special Counsel Mueller raised at least once and possibly twice in the report rather pointedly I thought.

So my view of why Special Counsel Mueller did not opine on the obstruction question, is simply that he recognized that A, the Department of Justice wasn’t going to prosecute and B, he believed that the question of whether or not Mr. Trump engaged in obstruction of justice either in the narrow legal sense or in the broader constitutional sense of subverting the system of justice more broadly. It was a point that really ought to be addressed by the public and more particularly by Congress.

Now I want to revert to a point that Hans made at the outset suggesting that Mueller left the decision to about whether or not there was in fact a crime here to Attorney General, in fact that’s simply not true, at no point in the Mueller Report does Mr. Mueller suggest or even imply that that determination is to be made by the Attorney General, and a number of people have remarked and I think I agree that Bars choice to take that step is at least questionable.

So to answer your first question, I think the Constitution is not operational here except insofar as the Constitution confers on Congress the power of impeachment and therefore the results of the Mueller investigation may be relevant to that inquiry.

Now if you would like me to observe, make further observations about the substance of the report I can certainly do that too.

1. Craig Williams: Great, go right ahead.

Frank O. Bowman III: I mean first with respect to Volume I of the report, again Hans subtly but significantly mischaracterizes the report. He said that this produce no evidence of collusion, now that’s simply not true. Collusion is not a legal term of art, conspiracy is.

(00:10:04)

And essentially what Mueller determined was that although there is ample evidence that the Russian government attempted to and indeed did interfere in the US Election in a number of ways and that members of the Trump administrator, the Trump campaign I should say, were perfectly willing to cooperate with Russian entities or to take advantage of the crime such as tapping into the Clinton campaign phones or emails.

They are preferably willing to take advantage of that. They were not really given an opportunity to do so. They tried hard enough, but they didn’t have an opportunity to actually engage in agreement with Russian entities to commit that offense.

So there is plenty of evidence of collusion in the broad public sense between Trump representatives and the Russians and certainly a willingness to collude. What Mueller found is that there was not the crime of conspiracy and that’s a rather different thing, particularly if one is considering this report insofar as it reflects on the fitness of Mr. Trump to remain in Office.

Now with respect to the second volume of the report, again, Hans, I’m sorry to say, misrepresents a number of the things in it. He says that the Attorney General is warranted in his conclusions that there’s no obstruction because the Trump & Company cooperated, no they didn’t.

I mean they cooperated some, but for example, you take a look at the written responses to the various questions provided by the Mueller people to Mr. Trump. It’s a litany of I don’t remembers. Pages and pages of I don’t remember and Mueller’s team concluded that those responses were in fact inadequate. The report says so in so many words, but says that they simply didn’t feel it was desirable to press the point on an unwilling President because they felt they needed to wrap up the investigation.

And with respect to the rest of the conduct by Mr. Trump, there’s all sorts of conduct detailed in that report that plainly amounts to a prosecutable case of obstruction. Over and over again Mr. Trump attempted to discourage people from testifying. He explicitly invited at least two employees of the administration to lie and tried to induce them to do so.

He dangled pardons. He did a whole variety of other things, which to a remarkable extent tracked the kind of conduct which produced the first article of impeachment against President Nixon. And with respect to corrupt intent, again, it’s impossible I think for any serious lawyer to read the second article or the second volume of the Mueller Report and conclude anything other than that.

There were ample reasons, ample evidence to conclude that in fact corrupt intent could be proven by Mr. Trump. So I mean I could go on at further length, but I think that should do it for the moment.

1. Craig Williams: Well, Hans, let me toss to you just the Mueller Report on the obstruction section, where he recounts how Trump fired Comey and then immediately said, he fired Comey because of this Russian thing. And essentially and also the whole issue with the sessions it seems all directed at Trump’s fear that the Russia investigation was somehow going to implement or implicate him. How is that not obstruction?

Hans von Spakovsky: Well, first of all, let me say a couple things that I resent. We’re supposed to be having a civil discussion here and I haven’t misrepresented anything in the report. There was no conspiracy and there was no collusion, that’s very plain in the first volume of the report between anyone in the Trump campaign with the Russian government to try to change the outcome of the election. That is clear throughout that section of the report and that’s the same conclusion that just about everyone else has come to.

Second, the decision by the AG on Volume II, well excuse me, but the Special Counsel is a Justice Department special employee and works for the AG and the regulation say that report goes to the AG. So it’s very clear that the AG is the one who makes the final decision on these matters.

It’s very clear that again, while the President in some ways is lucky that his staff did not want to do some of the things he wanted them to do.

(00:14:59)

Again, I don’t think you can prove a corrupt intent when there was no underlying crime, and in fact, he didn’t want investigation because he knew there was no underlying crime and that the entire Russian collusion allegation was basically a hoax based on the salacious and unverified steel dossier.

The other thing about this is that again there were absolutely no — that the firing of James Comey was fully within the constitutional authority of the President. The FBI Director serves at the pleasure of the President and the firing of James Comey in no way affected and put no restrictions of any kind on Bob Mueller’s investigation.

In fact, Mueller spent $30 million, had a staff of 19 lawyers and a support staff of 40 FBI agents and analysts. Frank complains about the questions that were answered by the President in writing. Bob Mueller makes it very clear in that report that he believed it was within the authority of the Special Counsel to conduct this criminal investigation and if necessary, subpoena the President.

So if he had thought that the answers he was getting were inadequate or somehow wrong, he could have subpoenaed the President and tried to force him to testify he did not do that. I think the final thing to keep in mind here is that if people think that there was somehow collusion here with the Russians, well, then obviously they probably want a special counsel to investigate Hillary Clinton because if you want to see actual evidence of collusion, all you have to do it with the foreign officials. All you have to do is look at the $1 million that the Clinton campaign paid to a foreign agent, why, because of his connections with the Russian government and Russian contacts to produce the steel dossier which helped get this entire investigation started.

1. Craig Williams: There is apparently from Volume I, there’s an obvious lack of conclusion that there’s been a crime has been committed and pretty much based on the fact that there appears not to be any intent, other than just unawareness perhaps. What aspects of a crime were necessary in impeachment proceedings?

Frank O. Bowman III: Crime is not required for impeachment proceedings, that’s perfectly planned, but let’s go back for a second about to the substance of Volume I because I think it relates to your basic question. It’s perfectly planned and Hans is correct to this extent at least that Bob Mueller and his people concluded that there was insufficient evidence to prove a crime in connection with conspiracy between Trump campaign people and Russians to affect the election.

Absolutely true, and to that extent to the extent the Trump wants to claim exoneration, that’s fair, it’s a fair political point to make. But step back for a second, the other thing that Volume I makes absolutely clear to anyone who reads it with an honest open mind is that the Russian government in a variety of ways sought to intervene and interfere actively in an American election and it also is clear that various representatives of the Trump campaign became aware that this was occurring.

And their reaction was not, oh my God, let’s go report this to the CIA or the FBI or other national security people. The reaction instead was to confine it to one particular incident. The reaction of I think Don, Jr., that’s great, when can we take the meeting to talk about the receipt of information that plainly had been obtained by a foreign power and plainly given the circumstances illegally so.

Now, the willingness to take that information may not be a crime, okay, but is this the kind of behavior that the American public thinks of as appropriate from an American President. And that relates to the broader question of his fitness for office and that relates in its turn to the question of impeachment.

And so, we don’t need to establish crime to determine that a President is unfit for office, that’s been planned since 1788. But we certainly can make the argument that a President is unfit for office if for example he is prepared to accept the help of a foreign government in order to secure his own election but more importantly, and this goes to the obstruction point, which is the thing we really should be focusing on here.

(00:20:02)

Hans keeps repeating that you can’t prove corrupt intent unless there is an underlying crime, surely he knows that’s not the law, because it isn’t, and no serious —

Hans von Spakovsky: I did not say it was the law. I did not say that was law. I said it is very, very difficult to prove that if there’s no underlying crime. So you are misstating what I said.

Frank O. Bowman III: It may be. Well, we can roll back the tape to your second iteration of that assertion.

Hans von Spakovsky: I am happy let’s roll back the tape and you’ll see that what I said was it’s very difficult to prove.

Frank O. Bowman III: Well, I will concede that it can be difficult to prove but there can be I think very little question that in this particular case, there is plenty of evidence that this President sought to obstruct the investigation in this case, sought to obstruct the investigation of the FBI, sought to obstruct the investigation of Mr. Mueller in a hundred different ways and it’s detailed in page after page after page.

It’s simply I think almost impossible to deny that and moreover I think it’s impossible to any fair-minded reader to conclude that Mueller didn’t believe that. He identified ten different areas that might amount to obstruction of justice and if you read the report with any care and with any fair-mindedness you cannot avoid the conclusion with it with respect to at least five of those, he and his people concluded that there was evidence sufficient to bring an obstruction of justice case even in the criminal context against this President. I mean, that’s an unavoidable conclusion and anybody who denies that is simply not reading the report fairly.

Now the consequence of that politically is debatable, Congress may choose not to take up that invitation but the facts are there.

1. Craig Williams: Hans, where does that leave us with Congress?

Hans von Spakovsky: Well, I just have to say I disagree with that. I think the Attorney General in fact has come to a correct conclusion on this as opposed to what you’re hearing here today. Well, what it leaves Congress with is, look, impeachment — impeachment is not a legal process, okay, it is not a trial, none of the rules in federal statutes, none of the rules of due process and federal rules of procedure apply. It is entirely a political process and you know the definition in the Constitution, the reasons for it are treason, bribery or other high crimes and misdemeanors.

The reason it is so important the people understand as a political process is that when articles of impeachment were voted on Bill Clinton, he had clearly lied under oath in a deposition in fact as you know he ended up losing his bar license for a while, so he clearly had committed a crime. But the country did not believe that he ought to be removed from office for that. They consider that to be minor enough and his other problems in the White House with Monica Lewinsky, they consider that to be minor enough that they did not believe that the President should be impeached. And that’s why I say it’s really a political process, you’re not going to get a successful impeachment process, you’re certainly not going to convince the Senate even if articles of impeachment are voted in the house. You’re not going to get the Senate to agree to impeach a President unless the Senators believe that the country politically is behind them, and I don’t think anyone can argue at this point that that is the point at which we have gotten in this particular case.

1. Craig Williams: Gentlemen, I’m going to interrupt here and before we move on to our next segment, we’re going to take a quick break to hear a message from our sponsor. We’ll be right back.

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1. Craig Williams: And welcome back to Lawyer 2 Lawyer, I’m Craig Williams and we’re joined by returning guests attorney Frank Bowman III, Professor of Law at the University of Missouri School of Law, and attorney Hans von Spakovsky, Manager of the Election Law Reform Initiative and senior legal fellow at the Heritage Foundation’s Meese Center for Legal and Judicial Studies.

We’ve been discussing the Mueller report, and Frank, I think you wanted to make a response to something Hans said right before the break.

(00:24:45)

Frank O. Bowman III: Well, on this much I certainly agree with Hans in large part in the sense that I think at this stage of the game it is profoundly unlikely that even if votes were summoned in the house to bring forth articles of impeachment, it’s profoundly unlikely that the Senate would summon the votes for conviction and that of course affects the way the house is going to behave. It affects the way the Democratic leadership is going to behave.

What I think ought to happen if I can be presumptuous enough to make such a suggestion to Congress is that, what the Mueller report certainly calls for and certainly lots of other things that’s called for this as well is a continuation of investigations by the House of Representatives into various of the behaviors of Mr. Trump and his administration and if at some subsequent point those investigations produce evidence that is compelling to the House and which really presents some reasonable possibility of conviction in the Senate then a decision about whether to go forward on impeachment itself should be made at that point.

But I certainly agree with Hans at this point that absent more, it’s a little bit I’m going to see indeed quite unlikely that a conviction can be obtained and that’s going to affect the political calculus.

1. Craig Williams: Gentlemen, let’s look at first a couple of nuts-and-bolts parts of the report. Hans, I am interested in your observation, it appears that the redactions in the report are largely in the first volume and mainly for continuing investigations, doesn’t appear that Bar has redacted anything that isn’t for the reasons, there’s a couple of personal privacy issues but what about the redactions?

Hans von Spakovsky: I think the Attorney General has been unfairly criticized for that and I think he followed the rules on the law to the letter. And given the fact that he was working with Mueller’s office on this I think we would have already heard complaints if the folks who worked for Mueller, particularly the lawyers there thought that things have been redacted that didn’t need to be. I mean, look, what did he follow the rules of the letter, grand jury material is secret under Federal Rules and Federal Law and the Attorney General can’t waive that. It’s also a long, long time standard procedure that the Justice Department is not going to reveal information on an ongoing investigation because it could compromise the prosecution, and look, the other rule about not releasing certain information because of privacy, that is a matter of fundamental fairness.

If somebody was a peripheral and character, peripheral witness revealing that may invade their privacy and subject them to attacks in a way, that’s not fair. The thing is, if you compare the redactions to those lengths of the entire report, which is very, very long, the redactions are really minimal and they don’t — I don’t think in any way they really interfere with being able to read and recognize the general findings of Mueller throughout the investigation.

1. Craig Williams: Frank, I know that you have a hard stop coming up on and I want to respect that, so let’s take this opportunity to wrap it to get your final thoughts and your contact information and then we’ll turn to Hans.

Frank O. Bowman III: I think I’ve said pretty much what I want to say. I think however the one thing I would say I suppose is that, if people really want to understand the Mueller report they shouldn’t listen to guys like me and Hans, they should go read the thing, read it carefully and particularly the auditors of the listeners to this program, lawyers, should go read the report, draw your own conclusions, don’t listen to me, don’t listen to Hans, draw your own conclusions.

Some of those, the conclusions that people come up with are likely to be influenced by their preconceptions, but what we lawyers do is try to remove those and read things fairly and according to the law I invite people to do that, I suspect they may find the conclusions quite interesting.

I am Frank Bowman and I teach at the University of Missouri School of Law, and happily I’ve got this book coming out ‘High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump’ and I hope folks will find it interesting.

1. Craig Williams: Great. Thank you, Frank, we appreciate your participation in the show.

And Hans, let’s turn it over to you for your final thoughts as well as your contact information.

Hans von Spakovsky: I think the key thing for folks to realize in this 450-page report is basically two things. One, there was no collusion between the Trump campaign and the Russian government. Yeah, there’s no questions the Russian government did try to interfere in our elections but that also should be no surprise to anyone because that’s something they did throughout the entire Cold War and the only difference now is that they’re using modern technology to do it, including social media platforms. It doesn’t mean we should put up with it and we shouldn’t fight vigorously against it but it’s not as if it’s something new.

(00:29:47)

The second thing is that what the second part of the report reveals at the insight of the Trump White House in some places is very unpleasant, particularly when described some of the behavior of the President, but anybody who’s read volumes, biography about Lyndon B. Johnson, will know that we’ve seen that kind of behavior before, but the key thing there is there wasn’t sufficient evidence to prosecute the President even if he could be prosecuted for obstruction of justice because one, Bob Mueller was in no way obstructed in his investigation, in fact he had no limitations put on him. And second, because the President did not assert executive privilege as prior Presidents have including Barack Obama, he was able to access all the people he wanted to in the White House.

So there was no obstruction that actually occurred and it would be very hard for the things that the President said he wanted to get done to prove he had a corrupt motive given that there was no underlying crime and he was simply angry at being falsely accused of a crime that he did not commit.

1. Craig Williams: Great, and how can our listeners reach out to you if they’d like to discuss this with you more?

Hans von Spakovsky: They can reach me at The Heritage Foundation in Washington, DC and my email address and phone number are there on the website.

1. Craig Williams: Great. Well, thank you Hans, we appreciate your participation in today’s program with Frank. Great to wrap up the discussion we had about those predictions.

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