Preet Bharara: From CAFE welcome to Stay Tuned. I’m Preet Bharara.
Robert Mueller: We did not address collusion, which is not a legal term. Rather, we focused on whether the evidence was sufficient to charge any member of the campaign with taking part in a criminal conspiracy, and it was not. Let me say one more thing. Over the course of my career, I have seen a number of challenges to our democracy. The Russian government’s effort to interfere in our election is among the most serious. This deserves the attention of every American.
Preet Bharara: That’s special counsel Robert S. Mueller III. He’s not my guest this week, but he is the principal witness. Yesterday, Bob Mueller gave his first public testimony since the release of his two volume report 14 weeks ago. The report documented Mueller’s investigation into Russian efforts to interfere in our election, and the president’s efforts to impede the investigation, in other words to obstruct. Joining me for today’s second ever Special Mueller edition of Stay Tuned, is my friend and Anne Milgram.
Preet Bharara: Anne is the former Attorney General of New Jersey, a longtime friend, and my cohost on the weekly CAFE Insider podcast. Okay, so ready to break down Mueller’s testimony. That’s coming up, stay tuned.
Preet Bharara: Hey folks. This week we’re focused on Bob Mueller, but every Thursday on Stay Tuned, I answer your questions and talk with interesting people about the intersection of law, democracy and justice. Subscribe anywhere you listen to podcasts. And if you want to help us spread the word, rate and review Stay Tuned with Preet on Apple Podcasts. That helps new listeners find the show.
Preet Bharara: Hi Anne.
Anne Milgram: Hi Preet.
Preet Bharara: So, here we are in the big day. It’s Wednesday, July 24th. It’s about 4:00 PM. Bob Mueller highly anticipated testimony in front of two House Committees just concluded a few minutes ago. To let people know so that they can get a picture. We’re in a podcast studio in Washington, D.C., our nation’s capital just a few blocks from where the testimony occurred. And you and I watched part of it together, part of it separately. Before we get to the substance and the performance and what it means for the future, I do want to brag about one thing. That is when we previewed the episode on the CAFE Insider Podcast we talked about what kind of drinking game you might do. And a listener actually posed a question.
Anne Milgram: Yes, Ted Lock posed the question @preetbharara, how drunk would you add and @annemilgram have been if you two had actually taken up the drinking game from Stay Tuned?
Preet Bharara: And the drinking game was every time Bob Mueller says I refer you to the report you take a drink. How drunk would we have been?
Anne Milgram: So drunk.
Preet Bharara: Like obliterated.
Anne Milgram: I’m sure someone on the internet has done a count of how many times Robert Mueller said that today, but it was a lot.
Preet Bharara: It was a lot. I mean, you could have even done a more specific drinking game and said every time Bob Mueller says the word purview, as in, that’s not in my purview you take a swill of a Moza, also drunk.
Anne Milgram: There was also a lot of I’ll refer you to the report. The, I can’t answer that. I mean, there were a million different ways in which he said-
Preet Bharara: Which was to be expected.
Anne Milgram: Yes, agreed.
Preet Bharara: Because he said that, that would be true. He would not go outside the four corners of the report, which pretty much he stuck to, even in ways that were annoying to the Republicans who wanted to ask about the origins of the investigation as well.
Anne Milgram: And to the Democrats who wanted to get him to take the facts in the reporting, and go to the next level of conclusions. And if I were to characterize today’s hearing, in some ways, I think that when people ask Mueller facts and specific facts related to the report, we got a lot more answers than when either side, the Democrats or the Republicans tried to get Robert Mueller to draw conclusions about his work, that was not happening.
Preet Bharara: Not only was that not happening, a lot of people predicted that what will be powerful is to have Bob Mueller read in his own voice sections of the report, which by definition, by the way, is within the four corners of the report. As we have learned, Bob Mueller not only refused to do that, but there was a negotiating issue for him. And every once in a while a member tried to ask him to read a sentence or two from the report, and he would say, “I would prefer that you do that.”
Anne Milgram: Yeah. What’s interesting about that is so one of the effective ways to question Mueller would have been to go through… And a couple of folks did this. To go through some of the specific lines from the report and even have him read it. It was incredibly clear that he wasn’t prepared to be anyone’s witness, neither the Democrats nor the Republicans. It’s like you called in this hearing Bob Mueller is the pinata. And I was talking about him as the ping pong Bob. He wanted none of that. In my view, he was just incredibly going out of his way to be non political. Almost to an extent that you don’t really see.
Preet Bharara: And very minimalist. I was on the set at CNN for the entire portion in front of the Judiciary Committee. And I remember thinking to myself that before the first break I don’t think there was a multi sentence answer that Bob Mueller gave to anything. As I’ve said before, I don’t think you want to be either upon or a pawn or pinata. He also didn’t want to be a prop. He doesn’t want to appear in Tom Steyer ads, impeachment, by actually reciting the stuff in the report.
Anne Milgram: I think you just said exactly why he didn’t read from that report, because he doesn’t want that to be taken and used for either side for or against the president. It’s interesting too because he very much did not want to testify.
Preet Bharara: I mean, like really, really didn’t want to testify.
Anne Milgram: Incredibly did not want to testify. And that was clear I think from the moment he walked in today that he was there under subpoena. He was complying with that subpoena, but that he really, it pained him, I think to be there. To your point, you’re right. I mean, most of the answers today were true, correct. I refer you to my report. I’m not going to say… There were only a few times where he actually talked.
Preet Bharara: Another one of his mantras was, “I’m not sure I agree with that characterization.”
Anne Milgram: Right.
Robert Mueller: I can’t adopt to your characterization. I think I said that before. I can’t accept that characterization. I’m not certain I would agree with that characterization.
Preet Bharara: It’s interesting to be viewing the hearing, in this case two hearings over time and seeing how the new shifts, and seeing what seems important early maybe seems less important later in the day. And so, maybe we’ll go through some of what the big takeaways were, and whether they’re as big as they seemed when they first happened in here. So the big takeaway all morning, the cable news networks had as their [inaudible 00:06:29], something that happened in the first five minutes after the opening statements. And that was the examination conducted by the Chairman of the Judiciary Committee, Jerry Nadler, who by the way I gave an A to.
Preet Bharara: Not that he cares about my grade. And I don’t grade everybody, and you’re grading a little bit on a curve when you’re talking about Congress. But I thought, contrary to some people’s expectations that he did a dramatically good job by asking short questions, pointed questions. Yes, no questions and was on a roll asking Mueller, is this true? Is that true? Is the following true? Mueller would reply, yes or no. And the thing that got a lot of people’s attention and remained sort of like the big news and the headline for a long time today, earlier in the day was when he said.
Jerry Nadler: The report did not conclude that he did not commit obstruction of justice. Is that correct?
Robert Mueller: That is correct.
Jerry Nadler: And what about total exoneration? Did you actually totally exonerate the president?
Robert Mueller: No.
Jerry Nadler: Now, in fact, your report expressly states that it does not exonerate the president.
Robert Mueller: It does.
Preet Bharara: Did you report totally exonerate the president? He said, “No.”
Anne Milgram: That’s right. And that was really important because Mueller’s report clearly stated that it didn’t exonerate the president. But then we’ve had now months of the president and other people on the president’s behalf coming out and saying, it’s a total exoneration. And so, it was actually without making Mueller say the president is a liar. It was putting up the, without saying this, but essentially saying is what the president has said about your report being an exoneration. Is that true? And Mueller saying, point blank, no, it’s not an exoneration. And that was important to share publicly.
Preet Bharara: It was a big deal, I guess. I’m going to have a contrary view in a second because it was Bob Mueller saying it and saying no. But in some ways, unsurprising, because, as you point out, it was in the report. Not only was it in the report, it was in the summary that a lot of people have taken issue with because it distorted the report. But the one thing that it did not distort was this line from the report that says, “We did not exonerate the president on the issue of obstruction.” And it’s interesting that the fact that he’s saying it on television for some reason that becomes a much bigger deal, even though we knew it’s Bob Mueller’s view. And we knew that even the Attorney General had to convey that that was Bob Mueller’s view. It’s one of the few things that was not distorted in the summary.
Anne Milgram: I think you’re totally right. But I would also note that Mueller wrote the report. The report came out. Barr completely frames it. He does say that there’s no exoneration, but he goes out of his way to say the president hasn’t committed obstruction of justice and is exonerated on the conspiracy to work with the Russians to influence the election. And so, the president saying that repeatedly, and having that be one of the ongoing themes for the past few months, I do think it was important for Mueller, specifically and personally to say no. That’s just not true. That’s not the case. And to refute both what the president said. And also, in some ways what Barr intimated even though he included that line in the report.
Preet Bharara: So look, I think that does resonate for a lot of people. The fact that Bob Mueller contradicts the president. Now you have competing not to sound bite, but also video bites, that will presumably be on the network news tonight and over the coming days.
Preet Bharara: Here was the other big blockbuster thing, that at least I said was a bombshell that occurred during the judiciary portion of the hearings today. And that is in an exchange between Bob Mueller and Ted Lieu. They began talking about why it was that Bob Mueller chose not to indict the president with respect to obstruction. If you believe like I do, and a lot of other people do, that there’s a lot of evidence in that section. And Bob Mueller taking the view, well, we’ve decided not to decide. It looked like by Bob Mueller was saying something new and different, and really significant. And the exchange was, Congressman Lieu asked Bob Mueller the question.
Ted Lieu: I believe [inaudible 00:10:05] person looking at these facts could conclude that all three elements of the crime of obstruction justice have been met, and I’d like to ask you the reason, again, that you did not indict Donald Trump is because of OLC opinion stating that you cannot indict a sitting president, correct?
Robert Mueller: That is correct.
Ted Lieu: The fact the orders by the president were not carried, that is not-
Preet Bharara: The reason you did not indict Donald Trump is because of the OLC opinion. Is that correct? And Mueller said without hesitating, that is correct. That was kind of an explosion in my ears. Because then you’re saying this whole question of whether someone is or is not above the law is being answered in a way, because Mueller was saying, essentially, but for the OLC opinion, we would have indicted. And the question was pretty clear, didn’t say a reason you didn’t indict. Or one of the reasons you didn’t indict. He said that the reason you did not indict was because the OLC opinion, is that correct? That’s correct.
Anne Milgram: That felt like a bombshell to me as well. And I know he walked it back later before his testimony began in House Intelligence. But I will say this as well, I think that there was a kernel of that in the initial conversation and questioning with Representative Nadler and Mueller where it was not as explicit as it was when representative Lieu did it, but there was a but for the OLC opinion, you would have indicted. Then after Lieu wouldn’t… The Republican Congresswoman tried to get Mueller off of that he stood his ground, mostly.
Anne Milgram: I mean, he hedged a little but… There were three instances during the first hearing where it felt to me that, and again, I think representative Lieu was the only time he really said it completely and explicitly. But there are a few times that it felt like Robert Mueller was saying, what I actually believe from having read the report, which is but for the OLC opinion, if Mueller could have indicted the president. He would have indicted the president for obstruction of justice. And it was an incredible thing to hear Mueller say that.
Anne Milgram: Let me add one thing I understand Mueller took it back, and we have to honor that. But there are few people in the world who I think choose their words more carefully than Robert Mueller. And again, it wasn’t just once it was a few times at this came back. He did repeatedly walk it back later and say, I don’t want to characterize it beyond the report.
Preet Bharara: I want to go to that. It seemed to me when he answered the Lieu question directly, and explicitly, and it’s literally the central question for a lot of people. And he must have been prepared on that question more than any other question that heads must have been exploding at main justice. Bill Barr’s head must have been exploding. Donald Trump’s head must have been exploding. All sorts of heads exploding. Those are the sounds you were hearing during the hearing. And I actually speculated on television that clearly somebody is trying to fix this, and will be calling Mueller and we’ll see what happens. When I was asked the question, what are you looking forward to hearing or expecting from the Intel hearing it was this, would there be a walk back? And sure enough, in his opening statement before the Intel Committee out of the box, before he gets to questioning, Mueller says I want to go back to one thing that was said this morning by Mr. Lieu-
Robert Mueller: By Mr. Lieu-
Preet Bharara: Who said, and I quote.
Robert Mueller: Who said and I quote, “You didn’t charge the president because of the OLC opinion.” That is not the correct way to say it. As we say in the report, and as I said at the opening, we did not reach a determination as to whether the president committed a crime.
Preet Bharara: We did not reach a determination as to whether the president committed a crime. And with that, Mr. Chairman I’m ready to answer your questions. So, you see that bomb?
Anne Milgram: Kaboom.
Preet Bharara: I put it out. It’s not that satisfying a walk back it. It takes you back into this weird Never land of you didn’t exonerate the guy. But you’re also not saying you committed the crime.
Anne Milgram: We’ve talked about this a lot.
Preet Bharara: It doesn’t make sense.
Anne Milgram: It’s such a complicated space that Mueller put himself into, in some ways, and that the report falls into which is that okay, on the conspiracy, that he says, I’m not finding that the president engaged in a criminal conspiracy with the Russians. But then when it comes to obstruction, he says, I can’t make a conclusion. I can’t draw a conclusion as to whether or not a crime was committed, that wouldn’t be fair. And there’s this OLC opinion, OLC opinion is number one. It wouldn’t be fair is number two. But by the way, I’m not exonerating him. And then he goes on to write essentially a prosecution memo, which is here are the three elements of obstruction of justice. And here’s the evidence that we had to go to each of those three elements. There are somewhere I think the evidence isn’t fully there. They sort of are upfront about saying we didn’t obtain evidence, for example, in a couple instances of I think corrupt intent.
Anne Milgram: But there are other places where they hit all three of the necessary elements, and at least four or five of them feel like places where you or I might have approved in our prior careers, someone going forward into the grand jury to seek an indictment on those crimes. And so, it’s like he’s in this really weird position. And he definitely didn’t want to make news today. He definitely didn’t want to go out of the four corners of the report. But it feels to me like his first answer was the honest answer.
Preet Bharara: The reason why it’s so important, if there had not been the walk back and assuming the walk back is not accepted is that the Democrats need a reason and a basis that’s simple and easy to understand as to why they would proceed with impeachment, even though the polls are not showing dropping support for continuing with impeachment. And that is, if it was the case that Bob Mueller and his team concluded that the president had committed a crime. But he uniquely in the country can’t be charged with that crime, that provides the basis for saying, well, no person is above the law and we need to proceed here. And that coming not from a partisan person, but that coming from the Special Counsel, and Bob Mueller makes it a different order of magnitude serious.
Anne Milgram: I agree.
Preet Bharara: And they seem to have lost it with the walk back. So, I’m not quite sure how that plays out. What do you think?
Anne Milgram: You’re completely right. I think if it were left as it was, you have a very respected criminal prosecutor, who is the special counsel saying the president committed a crime. And then Congress is in the position of saying, well, there’s evidence of a crime that we’re not making that determination, Robert Mueller has made it. And so, it’s really powerful. I do think a couple things. One is I think it’s accurate. I think he did walk it back, and I understand why, but I think it’s consistent with how I read the report. And I think a lot of people read the report. The problem now with the walk back, you can’t go out and say, “Well, Robert Mueller said, but for the OLC opinion, it would be a crime.” Because he doesn’t want to describe it that way, so it loses its impact in an enormous way.
Preet Bharara: Do you think that as I speculated that in between the two hearings, Bob Mueller was contacted by Bill Barr, or that his deputy, Aaron Zebley was contacted? Or do you think his own team internally decided they needed to walk back? I’d like to know the answer that question.
Anne Milgram: I would too.
Preet Bharara: And it affects my thinking about the walk back. But the other thing that this all relates to and a little bit of news that came out, and the question that I’ve had for a long time is when did the Special Counsel really make the determination that at the end of the day, the OLC opinion would govern? And there could be no indictment of the president? Was it recent in time, was it midway through and he basically said at the outset. They knew two years ago that there would ultimately not be an indictment of the president. And they investigated anyway. If you’re a layperson. Well, if you knew in advance, you can’t indict a person and you’re a criminal prosecutor. What was the point? Why did we spend all this time?
Preet Bharara: One of Bob Mueller’s answers was, “Well, the OLC memo says you can investigate somebody, including a president, that doesn’t preclude investigations it precludes indictment. Even a sealed indictment. And there may be other people who are involved in the activity. You could have co conspirators and you got to see where the road leads.” But the other thing that that suggests is so it’s not just done for not is that there’s some other body who can hold a president accountable, either a future prosecutor once he leaves office, and he was very clear about that. That was another bad moment for the president, or Congress.
Anne Milgram: Yes, very much so, and we should note that he refused to answer any question that went to their deliberative process internal to the investigation. But this was a great example where he argued, I thought strongly in favor of why the investigation continued, and pointed out that they did, in fact, charge a number of people in this investigation, and a number of the president’s associates as well. And so, I thought that was a critical point. I also thought when combined with what you just noted, which is Mueller saying absolutely clearly, yes, the president can be charged after he leaves office, which is that it’s not immunity from being charged. It’s just a temporary period of time, which you cannot indict the president.
Anne Milgram: It says in the report, and we’ve talked about this, and I think a lot of other folks have talked about it that the best time to get evidence is close in time to when a potential crime has been committed. It’s really hard to do it, to wait till the president is out of office, whether it’s four years or eight years, and of course, statutes of limitations may have run. But it’s really impossible to wait to gather evidence and do the investigation. And so, I thought that was an important moment today.
Preet Bharara: We’ll be back with more on Bob Mueller’s testimony after this message. Stay tuned. This episode is supported by ZipRecruiter. It’s important to surround yourself with good people. Here in D.C. that’s obviously difficult. Finding qualified candidates takes a long time. But there’s one place you can go we’re hiring is simple, fast and smart. That place is ziprecruiter.com/preet. ZipRecruiter sent your job to over 100 leading job boards, but they don’t stop there.
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Preet Bharara: Let’s take a step back here, and we’ll go back into the substance of some of the back and forth. One thing that happens in life is the creation of expectations. So, on the issue we were just talking about, to me it’s significant in terms of perception that for a long time, lots and lots of people thought, notwithstanding this OLC opinion, which was not as well known two years ago as it is now that maybe there would be an indictment of the president. And it’s a little weird in the universe to know that the Special Counsel determined two years ago, there would be no indictment. But the rest of the world thought that there could be, and so expectations were raised. Or at least expectations that were raised were never legitimately brought under control. So, that’s one example of it.
Preet Bharara: Another example of it is as we’ve been told for months and months, and I’ve been saying that Bob Mueller should testify. You’ve been saying he should publicly testify. So, there’s a lot of build up to this thing. In recent days, I was wondering is it going to live up to the build up. And for a lot of reasons I think you and I agree that it wouldn’t because Bob Mueller is so minimalist and was a reluctant witness. And it is true, there’s a report, but even as recently as last night, and this morning, lots of folks were saying, “Well, this could be a huge blockbuster thing.” Was it?
Anne Milgram: A couple of points. I think the key to life, in some ways is having low expectations or at least managing your expectations. And so, I very much think that the media over blew what the outcome of this would be. And you’re right, even as recently as this morning, people were saying this is absolutely going to lead to impeachment. People asked me the other day, will Mueller agree that Trump should be impeached. Will Mueller say Trump-
Preet Bharara: No way.
Anne Milgram: You’re right? No way. Will Mueller say that Trump committed a crime definitively? No way. And so, there were some questions about whether or not the president had answered truthfully, in the responses he’d given to Mueller, and Mueller effectively said no.
Preet Bharara: And so, here’s another example in the exchange that maybe has a lot of import based on the way it was answered, and maybe it gets walked back. People were speculating as we were leaving to come to the studio, well would it be walked back as it seems kind of extraordinary, is a Democratic Representative Val Demings.
Val Demings: Could you say Director Mueller that the president was credible?
Robert Mueller: I can’t answer that question.
Val Demings: Director Mueller, isn’t it fair to say that the president’s written answers were not only inadequate and incomplete because he didn’t answer many of them questions, but where he did his answer show that he wasn’t always being truthful?
Robert Mueller: There, I would say, generally.
Val Demings: Generally. Director Mueller, it’s one thing for the president to lie to the American people about your investigation, falsely claiming that you found no collusion and no obstruction. But it’s something else all together-
Preet Bharara: Mueller replies, I would say generally. The cold transcript seems to suggest he was basically saying, yeah.
Anne Milgram: The president lied.
Preet Bharara: The president lied in written answers to the Special Counsel’s Office, but then you think about how other parts of the testimony went today, and it’s not quite that precise. I would say, generally, I would say generally what?
Anne Milgram: He said that a few times, though. He said, I would say generally a few times where people were trying to pin him down to specific things in the report. It’s a 400 plus page report, and he wouldn’t have the specific cite in front of him. And so, I think he was trying to basically say, generally, I agree with what you’re saying. I found that to be really damning for the president, and a really important moment today because he didn’t want to go into too much detail of who didn’t agree to testify. But it’s part of the report that the president did not agree to testify, and that they’ve made numerous efforts.
Anne Milgram: And so, that’s a moment where, beyond the answers being incomplete, untruthful. I mean, it’s like, well, the president wouldn’t answer half of your questions, the obstruction questions. Would only answer questions on conspiracy. And by the way, the answers he gave you, Mueller didn’t say this, but remember there were a ton of I don’t remember. I don’t know. And so, Mueller saying generally, yeah, we didn’t find it to be complete or truthful. That’s a big deal. And it’s also, again remember this is the president of the United States who refused to walk into an interview. Who filed written answers. And then even with those written answers, the Special Counsel did not believe that the president was forthright. That is hugely important, as we think about what’s gone on.
Anne Milgram: Mueller did in some ways today, I think exactly what you and I would have expected him to do. What I would have liked for him to have done, which if I were honest about this, I knew he wouldn’t do it. But I would have liked more of a conversation about the president not testifying, and not being subpoenaed to testify. I mean, Mueller went, gave us a little bit there in saying, there’s a balance between looking at the information that you have, and the amount of time it takes to go through litigating a subpoena against the president. But I would have liked to have heard more about that. The fact that Don Jr. would not testify did not provide information. Mueller wouldn’t answer those questions, and that’s in keeping with the letter that the Department of Justice just sent saying, “Don’t talk about third parties who haven’t been charged.” I think Mueller, I don’t know whether he was self constraining, or he felt constrained by the department letter, but he was very cautious as a witness.
Preet Bharara: Should we talk about this decision not to pursue compelling a testimony of the president for a second. Something I was really struck by, I guess, I’ve always believed that Bob Mueller imposed a clock on himself. He wanted to get this thing done as quickly as possible to avoid criticism. And also, he has better things to do with life than do this. And he said in his opening statement among other things, that one of his goals was that the investigation, “Would not last a day longer than necessary.” Then when he explained a little bit of that today, as you had mentioned, you don’t know how long it takes to get through the courts and compel the president’s testimony.
Preet Bharara: As I’ve often said, I’m in the minority here, for defending Mueller on this decision. If you started to get into the next year, into the next summer, 2020 approaching the election, and holding everything else in advance. No report on the conspiracy aspects, other aspects of obstruction, to try to get the president to be compelled to testify, then you’re I think running up against a very, very, very serious barrier and clock because it looks much, much more political. And also you maintain this cloud over the country and over the presidency for a long period of time.
Preet Bharara: The other way to think about it is, it sounds like he had enough. He won’t say it because he’s bending over backwards to be fair to the president because of what he interprets the OLC opinion to allow or not allow, but you don’t seek the testimony of the person, if you think you have enough. And I think that’s what’s going on here.
Anne Milgram: Well, let’s parse this out just a little bit. In the report, it basically says, There was a question of timing, and we felt we had sufficient evidence to make an assessment. I think to your point of there was evidence there. I agree, yes, there is evidence there. And there’s a considerable amount of evidence. The two places I would go back and forth maybe a little bit with you on to dig deeper is that obstruction is one of those crimes where intent really matters. And so, one of the three elements of the crime. The first is there’s an obstructive act. The second is that there’s an access to an official proceeding, a connection to an official proceeding, like a grand jury or a hearing. And the third is corrupt intent.
Anne Milgram: I think when intent is as much of an issue as it is with something like obstruction it is incredibly important when you can get access to someone’s testimony to get access to their testimony. So, I personally would like Mueller to have interviewed the president. Also, I think there’s a question of thoroughness when you’re doing these types of investigations of dotting Is and crossing Ts. I don’t think I’ve ever asked you this before. But I really wonder today, if whether it’s more than just the balance of these two things, it’s also the fact that he knows under the OLC opinion that he’s not going to indict him.
Preet Bharara: Exactly. I think that totally played in. Because at the end of the day, you have a certain amount of evidence, you’re worried about the timing. Then even if you got this other evidence, in other words, the interview, you’re not going to indict him anyway.
Anne Milgram: And it takes a year or takes six months to get that other evidence.
Preet Bharara: [crosstalk 00:27:25] do this exercise a little more. You’re the Special Counsel, and you gather your team together. Let’s say I’m on your team. And you say, “Well, what should we do about compelling the president’s testimony?” I’ve run this scenario through my own head. And your team says, “Well, we really want to get it.” Because corrupt intent is important. You want to get what’s inside the person’s head, both for their benefit and for the benefit of thoroughness of the investigation. Then you would ask, I think, what do you think the timing is? And let’s say, I don’t know, because it’s a little bit speculative. We’ll go to the district court, and maybe it’ll take some period of time, months, maybe weeks only, but probably months. And they’ll appeal it and it’ll go up.
Preet Bharara: If you would ask the question, which I would, what’s the possibility that this reaches ahead, and we’re in the position to take the testimony of the president in, say 13 months or 14 months in September or October of a reelection year? Let’s say your team said, “Look, we can’t promise. We don’t know.” It could be. It could be on the eve of the election. If you also ask the question of your team. But can we put the report out in bits and pieces? So, even though the obstruction stuff has to be on hold until we get this decision from the court about compelling testimony can we put out the conspiracy stuff?
Anne Milgram: Absolutely not.
Preet Bharara: You couldn’t do that, right?
Anne Milgram: Yeah.
Preet Bharara: And so, not to overly defend the decision I’m just thinking if I were in that spot there’s no good result. And-
Anne Milgram: I agree that there’s no good result particularly because I think you’re right-
Preet Bharara: You would have taken that risk. You would have taken the risk to have this reach ahead on the eve of an election when the whole issue here is that the president thinks it’s a witch hunt. A lot of folks think it’s taking too long, and you’re otherwise… Imagine the following, you’re otherwise kind of done as evidenced by the rest of the report. The only thing that you really don’t have is a testimony the president. Do you hold everything frozen for another potential witness?
Anne Milgram: I think you’re [crosstalk 00:29:19] the witness.
Preet Bharara: Well, it’s a podcast. The Federal Rules of Evidence do not apply.
Anne Milgram: Objection.
Preet Bharara: [crosstalk 00:29:23]. Those include podcasts that are recorded in Washington, D.C.
Anne Milgram: Look, I think it’s a really great question. And a really… Look, people can disagree about this in a very real way. Here’s where… I want to agree on one part very strongly with you, which is that I think that you cannot come close to an election, and the president of the United States is incredibly lucky that Robert Mueller was the Special Counsel, because we saw even Jim Comey who was a well regarded prosecutor for many years. Comey broke what I would argue are whether they are official rules or formal rules or informal rules, but by talking about investigations within a close of period of time to an election, you just don’t do it.
Anne Milgram: Robert Mueller is a man of integrity, was not going to come close to the election. And I agree 100% with it. So, you’re right that there was a timing issue where Mueller could have come up, or he could have actually, worst case scenario, even then you’ve just outlined would be he goes eight months. He realizes he’s coming close to the election, and then he says, forget it [crosstalk 00:30:27]. He gives up [crosstalk 00:30:28].
Preet Bharara: Once you go down that path, that’s the thing, once you go down that path, then you got to hold everything up, and you got to wait till you go all the way higher up in the courts.
Anne Milgram: What if he started earlier, though, because I think the one thing I would question in your analysis is that you’re presuming Mueller waits a year. He continues these negotiations, which were pretty clear from all of us looking from the outside early on, the president was not eager to walk in on this.
Preet Bharara: You’re saying that they could have sought to compel it-
Anne Milgram: Instead of waiting a year. [crosstalk 00:30:55]. Go for three months, and then say, “Look, we’re going to issue you a subpoena.”
Preet Bharara: But there’s a conundrum there too. And again, I don’t remember exactly what was accomplished by what particular date and time. But generally speaking, the other traditional way you go about doing these things for good reason, because it makes sense and it’s effective is you don’t get the testimony from the principal person you’re looking at-
Anne Milgram: Till the end. [crosstalk 00:31:16]. Yep, that’s right.
Preet Bharara: No, you check your boxes, you cross your Ts dot your Is. So on the one hand, you don’t want to front load that because that’s not how you do things normally. On the other hand, you have this-
Anne Milgram: Yeah. And I thought they were trying to walk that balance, actually, because they started the conversation clearly pretty early before the investigation. There was still a lot of people who it was clear from public information they were probably still investigating. So, it was clear they were trying to start that conversation without… Understanding it might take a while.
Preet Bharara: It seems there’s a lot of things to keep in mind as we’re going to be assessing Bob Mueller, how he went about doing this. We should assess his performance today in a moment, and questions people have about it. But whether you like it or not, to understand the psychological approach that’s legal/psychological, is clearly he did a lot of things that you could have done one way or a different way based on urgency and time. For example, we talked about this before, he decided to five off a bunch of investigations and a bunch of cases to other offices, you don’t have to do that. You could have-
Anne Milgram: He could have kept going [crosstalk 00:32:16].
Preet Bharara: You could have kept going. Yeah, so all these things you have to view through the prism. And maybe it’s not correct or maybe it was overdone, but he wanted to get out of this thing as quickly as possible. And by year two, he wanted to be done.
Anne Milgram: I think it’s also consistent with who he is that he obviously knew that he was a political football every day, and that this was a huge American issue. And so, look, I give him so much credit for the way he handled this investigation. And again, I actually don’t think that this is as clear cut as people make it seem one way or the other. Let me say one other thing, which is that in criminal prosecutions I think it would be very helpful for the nation to have had the president had to speak about what he was doing and why and to have answered Mueller’s questions. But I also… We put a lot of hope on a criminal investigation in a way that I have to say is not always fair. And so, Bob Mueller did the right thing, arguably, by the investigation. It doesn’t get to the answer that I very much would have liked, which is that the president had to answer questions on obstruction.
Preet Bharara: No, 100%. In some ways we’re falling into a trap. And which is assessing Bob Mueller’s conduct. We’re lawyers, that’s what we do, and former prosecutors. And you’re assessing, well should he have done this, should he have done that. Well, what would the president have done.
Anne Milgram: Right agreed. He should’ve walked in.
Preet Bharara: He should’ve walked. He should’ve walked in. Clinton walked in. People walk in. I mean, you have to negotiate it, but they walked in.
Anne Milgram: But the fact that the president didn’t walk in and Donald Trump Jr. didn’t walk in. If you and I are prosecuting a case, and we say hey, you want to come in and talk to us? And people say no, your takeaway is they don’t want to talk to you. It can be great lawyering to basically say, my client isn’t coming in because you don’t want to give the government information to help them make the case. But it’s still… It says something that the president of the United States would not actually take a lawful request, even though it wasn’t a subpoena from the Special Counsel to answer questions.
Preet Bharara: In particular because… and these mistakes have been made before in the Martha Stewart case and others. There’s certain people who are not ordinary citizens. Either they’re public officials, or they’re famous in some way, or they have a business. And sometimes they overrule their lawyers and cautious lawyers will say, based on what the facts are don’t go and talk to the prosecutors because the one thing that will get you in trouble is lying. And you can be charged with obstruction. And so, you say to the client, don’t do this. But some clients, whether it’s Martha Stewart or someone else, because I can’t take the reputational loss of looking like I’m guilty and looking like I’m running away from something. And you would have thought-
Anne Milgram: I think that’s true of almost everyone.
Preet Bharara: … that would apply to President Trump. But not President Trump.
Anne Milgram: Yeah, it’s true. It’s a great point because it felt to me as this was ongoing, how does he stay as the president of United States and not be willing to answer questions about whether he tried to stop an investigation into whether he conspired with the Russian government to interfere with an election, and it’s hard to understand. The Martha Stewart example is a great example.
Preet Bharara: So, while we’re on the subject of second guessing as armchair pundits, former prosecutors, let’s talk about how he did today. We have some questions from listeners and viewers. We have a tweet from Assiduous Rabbit. #AskPreet, the Mueller I’m seeing on TV is that the Mueller you know? He seems much more hesitant than he’s been portrayed. And we got an email from Lisa Cothran, who says, Dear Preet, is it obvious to you that the special investigator’s responsibility together with natural aging process has taken a toll on Mr. Mueller?
Anne Milgram: Well, first, let me say it’s taken a toll on me. [crosstalk 00:35:40]. At the end of the hearings today.
Preet Bharara: I can barely conduct this podcast today, much less imagine a hearing in front of a bunch of representatives.
Anne Milgram: Look, I’ve never done congressional testimony. I’ve done testimony when I was state AG in New Jersey before the State Legislature and it’s tough. I’ve never done five hours. But I can tell you that it is grueling. Mueller was working really hard not to say a lot. And that’s an effort, I think to carefully choose his words and to be really scrupulous about what he said and didn’t say. I also feel like there were times, and we’ll come to the way that the hearing was conducted. But I was really frustrated at parts of the morning listening to and I said this before people interrupt him, not letting him answer. There was some yelling, not listening. And so, I think when he was asked really clear, factual questions, he did a pretty good job of answering those.
Anne Milgram: There was a lot of word salad this morning, and it wasn’t word salad on everything. There was also a lot of speechifying where people had very particular things they were trying to pin Mueller to. And he did a lot of the, “Will you repeat that question? What are you talking about?” It came across in some instances as halting or as not as confident as you might expect him to be. But there was… he was being asked some pretty complex things where people were trying to make political points. And I think he was hesitant again, to let people pin him into the corner. It wasn’t… Look, he didn’t go in there to be theater or to be the person who was making news today, and I think he definitely came across as understated, not answering a lot of questions, hesitant-
Preet Bharara: Well, one thing he said, he didn’t walk back. [crosstalk 00:37:30] One thing that broke through, and was a little bit different. Look, one of the questions that I just read was, is that the Mueller you know, and in many ways, yeah. He’s the Mueller you know. In the first round I was with a panel of people on CNN. And they seem taken aback when he began answering questions. Yes, no, no, yes. You don’t see that. You see people-
Anne Milgram: I wasn’t surprised at all.
Preet Bharara: … full of buster. So yeah, that’s the Mueller I know. The Mueller I know also is a person as you just describe who doesn’t want to be the center of attention. Who doesn’t want to be embroiled in political controversy. Who doesn’t want to allow himself to be used politically in ads, which is why he made a deal that he wouldn’t have to read portions of the Mueller report. So all of that, yeah. That’s the Mueller I know. Frankly, if you say was he as sharp and quick and forceful and dominant as I have seen him be 10, 12, 14 years ago? No.
Preet Bharara: I know that’s because this is a scenario in which he was especially reluctant to testify, because all of those other hearings combined did not get the attention. 88 times I think he testified did not get the attention that today was going to get, and did not have the significance of today. Yeah, so I saw Bob Mueller, who is trying not to be political, who does not look political, who’s trying to do the right thing, who’s trying to obey the guidelines of the department, who’s trying to be true to the report, who’s trying to get the job done. It’s a thankless job that he had both doing the report, doing the investigation, and also testifying. And as he as sprightly as he was, no.
Anne Milgram: That’s fair. One thing I would say about the dominant question. It was interesting to me, particularly the first half of the morning hearing before the Judiciary Committee. There were a number of places where I thought he was pretty deferential. And I thought I expected him to be a little bit more feisty in defending the report and defending his team, and pushing back on some of the things that were coming. I really even having seen Bob Mueller testify before and read transcripts and whatnot. I expected him knowing that he would be reticent and very careful in choosing his words, I expected him to be more forceful and some things. After the break, though, he came back, and I don’t know if you feel the same way. He felt stronger.
Preet Bharara: Do you think he had coffee? Did he get coffee?
Anne Milgram: Yeah. But maybe some people of his team basically said, “Look, you know this isn’t true. And you’re trying so hard to not be political, you’re almost… you’re not in there saying, hey, wait a minute, my team… I thought it was a great moment when he was questioned about the members of his team, and how many people on his team were Democrats.
Robert Mueller: Can I speak for a second to the hiring practices?
Speaker 7: Sure.
Robert Mueller: We strove to hire those individuals that could do the job.
Speaker 7: Okay.
Robert Mueller: I’ve been in this business for almost 25 years. And in those 25 years, I have not had occasion once to ask somebody about their political affiliation. It is not done. What I care about is the capability of the individual to do the job, and do the job quickly, and seriously, and with integrity.
Anne Milgram: Here’s what’s fascinating about that Preet just to stop on that for a minute, neither have I, and probably neither of you-
Preet Bharara: No, we’re not allowed to. That’s what got the Justice Department in trouble with respect to the investigation that I helped lead back in 2007. That’s a no, no.
Anne Milgram: But what’s amazing is it’s like it would never have even occurred to Mueller that people would not have accepted that the 14 people who were already at the United States Department of Justice that they were non political. It’s just beyond his comprehension that people would politicize his team in the way that it’s happened. And that to me, there were some great moments today where he was like, “Look, I stand by the integrity of the report and my team.” And I think he needed to do that. I wish even in the beginning of the Judiciary Committee, frankly, that he’d done that in a stronger way.
Preet Bharara: What do you think of how he handled questions about the FBI agent, Peter Strzok who had texts with a woman with whom he was having relationship Lisa Page that said negative things about the president. I think he was asked at one point, did you know when you hired Peter Strzok on to the team, that he hated the president? And Bob Mueller said, I did not, which is interesting because he didn’t seem to push back at the premise of the hatred, which I think is hard to push back. I think Peter Strzok was particularly fond of the president. He just said, or he tried to finish answering by saying, and that’s when we reassigned him.
Preet Bharara: He didn’t decide to give a lecture in law, like you and I have done here and explain why in ordinary universe to civilians just because, and not to condone it, but just because one member of a team has done things that that exhibit bias, it means that the miscreant goes free. There are other safeguards for that. And the evidence has to stand up on its own. And he was removed pretty early. He was removed, I think, almost a year, close to a year and a half before the final report was issued. And it’s interesting to me that very few Republicans, if any, I would have to go back and look to the whole transcript quibbled with the actual facts that are shown in the report as opposed to these other issues.
Anne Milgram: Right. That’s a great point. I think on the text messages to he said the first thing he learned about were the text messages. It does strike me that’s one of those painful things where if you’re Robert Mueller, he’s the least political guy. He does not want to be part of this political sort of rugby scrum, which of course he’s part of because he’s the Special Counsel. Then you have two people on your team who have these political statements come out. It’s got to be painful for someone like Mueller, because essentially he gave the Republicans and we should talk about some of the criticisms today, but there’s fodder to argue that there’s bias where Mueller, again, was quick to say, I’ve never asked anyone their political leanings. It’s not why I picked these people. These are fine men and women. But it gives something to hit him on.
Preet Bharara: I still have some questions that I don’t think were asked. Every once in a while I may have sneezed, and missed something. And they’re not the most important things, not central to the ultimate conclusions about the culpability of the president. But I wanted to know from Mueller how we felt about the idea that Rod Rosenstein, the former deputy attorney general, was simultaneously a witness in the obstruction case, but also was one of the decision makers with respect to the whole investigation and oversaw it. I don’t think that was asked.
Anne Milgram: No. There were a number of areas that I don’t know if Mueller would have answered them, but I would have liked them to have covered with him. And in particular, I think there was stuff related to the Russian government and the interference with the election, I would have liked to have seen them spend more time covering, particularly in the intelligence hearing.
Preet Bharara: So, what do you think we go from here? I hate doing this in the way that some people do it. But do you think… I don’t know how you’re going to answer it yet. But it is what it is. Maybe disappointed. Some people might be satisfied with the answer. But based on how today went, if one of the purposes was… I think actually Mueller was asked this. No, I’m sorry. One of the chairmen was asked is the purpose of today’s hearing to jumpstart impeachment or something like that? And probably one of the purposes was. I agree with those folks who say that a good predicate was laid down for calling other people. Whether you call it impeachment or not like Don McGahn and others. But after today, does impeachment become more or less likely?
Anne Milgram: I want to start by saying that every time we make predictions, or at least every time I make predictions-
Preet Bharara: No, me too.
Anne Milgram: They’re often wrong. So, I want to I want to caveat that. The thing I feel about the way Congress has handled this is I’m not a fan. And just to be really forthright about it-
Preet Bharara: Way to go out on the limb. Wow. Anne with [crosstalk 00:45:09]. What is the phrase you used?
Anne Milgram: Rugby scrum?
Preet Bharara: No, no, no. The actual way you said, I’m not a fan.
Anne Milgram: I’m not a fan.
Preet Bharara: Oh, yes. Anne Milgram boldly says, she’s not a fan of the way Congress did something.
Anne Milgram: Well, here’s what I think has happened. Mueller comes out with a report in March. It gets released not long after. And there’s been a lot of hand wringing and a lot of putting their finger in the air to see where’s the public. I think a real hesitation to have this conversation today is the most significant conversation that we’ve seen publicly about the report, and about Robert Mueller’s findings and what happened. And so, they’ve waited a long time. I agree with you completely. Don McGahn needs to testify. I think there are a lot of fair questions for Hope Hicks and many, many others. And so, would I like all those folks to be called? The answer is yes, but there’s a point at which we are getting closer and closer to having a democratic, and the president will be the Republican nominee for president. That there will be a Democratic nominee before you know it. And so, we’re in the presidential election season. I don’t think it’s likely that we’re going to see impeachment.
Preet Bharara: And today made it less likely.
Anne Milgram: Yes, I think so.
Preet Bharara: Yeah, I mean, my view is, if you separate out the substance from the theater, the theater was not conducive to what some people wanted. There were no real huge aha moments. There were a couple of big things we talked about, one of which was walk back. And mostly people who believed a thing before believe the same thing now.
Anne Milgram: It’s true. People are set in their opinion. What we learned today from Mueller, we knew in April from the report, and so there wasn’t a lot that was new.
Preet Bharara: I’ll say something else further to what we were discussing before about how about Mueller performed. This is the odd thing about doing this. We are immersed in the actual hearing, and watching the things, and I have not had a chance to see a lot of reaction just intermittently very quickly. There are people who were saying, many of them, but not all of them, who have a vested interest in today being a disaster for the Democrats, who are calling the debacle, calling it a disaster. And-
Anne Milgram: I don’t think that. I just wonder if it’s a little bit late down the road when there’s been a lot of ….
Preet Bharara: The people who were saying that, based on the substance, there was no damage done that I could see to the conclusions, to the integrity of the investigation, anything of substance remained intact. In fact, I think was strengthened in many ways because you saw the demeanor of Robert Mueller as not being a hyper partisan or trying to get someone. So they’re basing that all on their perception of the quality of by Mueller’s performance and maybe how sharp he was, and how quick he was in the moment, and I get that. But that means that those people are focusing on theatrics rather than substance.
Anne Milgram: Yeah, the substance was very strong. The substance has been strong since the report came out. I think Congress has made a decision that I don’t agree with to stand back and do these small pieces instead of having impeachment hearings and figuring out did the president engage in conduct that constitutes a removable offense. And so, my feeling is that at this point, remember Congress is leaving this week. We’ll have a chance to talk about this I think going forward on CAFE Insider, but my expectation is that the reaction to this is not going to be an explosion of people asking for impeachment.
Preet Bharara: And a little bit, maybe the Intel Committee’s hearing cut a little less attention because it was later in the day, and people had already formed their impressions of what was going on today based on the early part. People losing patience. There’s a lot of hours of hearings to watch. But that was really powerful stuff in the Intel Committee hearing. A reinforcement of this idea that we’re not paying enough attention to, that there was a, as Mueller keeps putting it sweeping and systematic interference in our election. And are we spending enough time thinking about 2020? Are we spending enough time figuring out how to prevent that kind of thing from happening? Not just with respect to Russia, but some other country as well.
Anne Milgram: Robert Mueller said it is happening as we speak for 2020. One of the things that Mueller said today that I found so important and chilling was that Robert Mueller, the man who oversaw the transformation of the FBI after 9/11, that he said in his entire career, that this is one of the greatest challenges to democracy that he has ever seen. That is an unbelievable statement from someone like Robert Mueller, who was the director of the FBI for 12 years. Oversaw the post 9/11 changes in the federal government. And so, it really is, even today I think you’re right. There was time spent on it in the Intelligence Committee, but there needs to be more time spent on it for all of us because it matters so greatly to our country.
Preet Bharara: Absolutely. Can I say one final word?
Anne Milgram: Please.
Preet Bharara: Just one final thing in this discussion about Bob Mueller, who I have deep, deep respect for, and whatever you think about how he conducted the investigation, whatever you think about how he did today, he didn’t need any of this. He’d already proven himself. He had nothing to prove. He did a thankless job, which probably appears more thankless today than it ever has before, and he’s not a young man. And it is probably the case. Someone said this earlier today, and it kind of struck me. It’s probably the case that we will not again hear Bob Mueller speak in Congress or at a press conference or from a podium in any way shape or form again.
Anne Milgram: Yeah, I agree with that. And it is… I think we all have a great debt of gratitude for what he’s done here.
Preet Bharara: Yeah, and I think the president does too. People can forget the posture of the president and his people, whether they’re folks like, Corey Lewandowski, Paul Manafort, or Roger stone, or anyone else is to destroy anyone who dares to say that the president did something wrong. The fact is that there are lots of other people who have good records, and are formidable prosecutors who could have been appointed Special Counsel. And it would have been a lot worse for the president. I get that they have to destroy whoever took that job. And in this case, it was Bob Mueller. But in many ways, Trump and his allies should thank their lucky stars it was someone as fair as him who is getting grief for having bent over backwards to accept the OLC opinion to such a degree that he won’t even state something that is apparent to the rest of us.
Anne Milgram: Yeah. What’s amazing when you think about it is that in this incredibly politicized world, Robert Mueller even today we saw went out of his way not to be political. And I think with this entire investigation was trying to do it straight by the book and that is, it’s a credit to our institutions. It’s a credit to him.
Preet Bharara: With this caveat, our reactions, we like to bring them to you right away. We’re taping this literally having watched the hearings all day and let a few minutes elapse before we came over in the studio. We’ll have a lot more to say about it with the benefit of some sleep and some rumination on the Insider Podcast on Monday. If you haven’t yet signed up for that podcast at cafe.com/insider.
Preet Bharara: Well, Anne and I could keep talking about Mueller’s testimony. And in fact, we do. To listen to the rest of our conversation become a member of the CAFE Insider community at cafe.com/insider. Members get access to full episodes of the Insider Podcast, bonus material from Stay Tuned, and more. In addition to the rest of today’s discussion, Anne and I will have more talk about on Monday’s episode of CAFE Insider where each week we break down the headlines and make sense of what’s happening. Head to cafe.com/insider and become a member. That’s cafe.com/insider. To the many of you who have already joined the community, thank you for your support.
Preet Bharara: Well, that’s it for this Special Mueller episode of Stay tuned. Thanks again to my guest Anne Milgram. Stay Tuned is presented by CAFE. The executive producer is Tamara Sepper. The senior producer is Aaron Dalton. And the CAFE team is Carla Pierini, Julia Doyle, Calvin Lord, Vinay Basti, and Geoff Isenman. Our music is by Andrew Dost. I’m Preet Bharara. Stay Tuned.
Preet Bharara: Hey folks, CAFE recently launched something to help you keep on top of today’s new cycle. It’s a newsletter that recaps News and Analysis of politically charged legal matters, the CAFE Brief. Sign up to stay informed at cafe.com/brief. That’s cafe.com/brief.