Preet Bharara: From CAFE. Welcome to Stay Tuned. I’m Preet Bharara.
William Barr: There is substantial evidence to show that the president was frustrated and angered by his sincere belief that the investigation was undermining his presidency propelled by his political opponents and fueled by illegal leaks.
Preet Bharara: Welcome to a special edition of Stay Tuned. That of course is Attorney General William Barr at this morning’s press conference about the Mueller report, which is of course somewhat redacted, finally out. Joining me for today’s special edition of stay tuned is Anne Milgram. She is, as you know, the former attorney general of New Jersey and my cohost at the CAFE Insider Podcast. There is a lot to discuss, but first a quick word from our sponsors.
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Preet Bharara: Hi Anne, how are you?
Anne Milgram: Hi Preet, how are you doing?
Preet Bharara: I’m good. I’m in a small podcast studio in Washington, D.C. at CNN headquarters. I don’t know if it’s a headquarters actually, but it’s the DC office of CNN, and you are where?
Anne Milgram: I am sitting in our normal podcasting studio in New York City.
Preet Bharara: I see.
Anne Milgram: Looking at an empty chair across from me.
Preet Bharara: Yes, I’m sorry.
Anne Milgram: Yah, it’s sad.
Preet Bharara: The famous debating of the empty chair.
Anne Milgram: Yeah.
Preet Bharara: So, I’ve been spending all the day as much as I can, scrambling and reading. I’ve gotten through a great majority of it, skimmed other parts of it and seen what some other folks have said about it. I’m still scrambling a little bit to get my head around all of it. You’ve had a chance to look at the report too, Anne?
Anne Milgram: Yeah, I’m in the same boat. I’ve had the opportunity to read pretty thoroughly the obstruction section, and a lot of the conspiracy section, but there’s a lot here, and I definitely want to read it again and so I think we should talk about it today.
Preet Bharara: We have more to talk about. Yes, and we’ll continue talking about … I think there’s enough here that it will require dissection and conversation for a number of days going forward. Did you have a big takeaway from just the overall report? Did it match what you expected it to be?
Anne Milgram: I’ll tell you, I have sort of two takeaways or two high level takeaways and there are probably a lot more takeaways. But the first is I think Mueller did an extraordinary job and there are a couple places where I may disagree with him or sort of push a little bit, again, some of the way or the conclusions he drew. But this is a very detailed, very fact based report. They looked at questions from every possible angle. I really came away thinking he was thorough, he was factual and that he went out of his way to make sure that he was fair in how he gathered the facts and did the analysis. That’s one of my big takeaways.
Anne Milgram: My second big takeaway is that I think that the obstruction section is devastating for the president. That is consistent with some of the public reporting we’ve heard lately, but I think not consistent with the summary that the attorney general, Barr, gave us three or four weeks ago. I do think you and I should dissect it a little, but it is … there are multiple instances of conduct and there is deeper conduct. And just the way that they do the analysis of the sort of three parts of this statute I thought was very powerful. What about you? What’s your big takeaway?
Preet Bharara: Yeah, so I thought as expected that the report would be incredibly detailed, thoughtful, pretty fair, not a lot of editorializing. On every question, they sort of took the time to say, well, on the one hand, this is one way you could look at it. On the other hand, the better view of the evidence suggests that this is the other way to look at it. But always gave some consideration to both sides of the question. It’s hard to say that they went out of their way to find bad conduct or went out of their way to excuse bad conduct. I also found, with respect to the obstruction section, that it was devastating. It paints a picture of basically crazy lunatic White House where person, after person, after person was asked to do crazy things.
Preet Bharara: Sometimes they did those crazy things, sometimes they didn’t do this crazy things. Since we both spend time following the media and people who listen to the media on this question of whether or not the media got things right, lots and lots of stuff on the report, both with respect to part one on conspiracy and part two on obstruction makes clear that a lot of these things that were reported about Don McGahn’s conversations with Donald Trump Jr’s conduct, whether or not it rose to the level of their being a provable criminal offense.
Preet Bharara: The facts largely have borne out true. It’s kind of interesting, when you read a newspaper article about Donald Trump saying, “Can you go fire the special counsel.” Or you see a newspaper article or a TV story about how Donald Trump was really mad at Jeff Sessions. It’s very different when you read about them in a newspaper article and then you see them ratified and endorsed and stated basically as fact in a report from Bob Mueller’s team.
Anne Milgram: Well, we should dissect that just for one second because one of the things that Muller did, and I noted as I was reading it a few different places, is that he looked at situations in which there had been public reporting. Take the sort of questions surrounding Michael Flynn and the firing of Jim Comey. We had read a lot of those pieces in public reporting, but what Mueller does is he makes a credibility determination. And so, he goes through and says, there are two people in the room at the time when President Trump clears the oval office, asks then FBI Director, Jim Comey to come in. It’s the day after Chris Christie has said, the investigation is not gonna go away even though you fired Michael Flynn. Jim Comey, we know has stated, the president said to me, “I hope you can see your way past this, Flynn’s a good guy.” Things like that.
Anne Milgram: And then you have Mueller essentially making a finding that he credits Jim Comey in that. That’s just one example and I use it because I think most of us are familiar with those facts. But what’s really pretty compelling is that he addresses … Comey made contemporaneous notes. Other witnesses confirmed that the room was cleared. He really does it in a methodical way. That’s something that I think when we read public reporting, it was out there, but it wasn’t confirmed. So, what Muller does in a number of these instances is basically say, “Here’s what happened.” And he is making factual calls and that’s really valuable for those of us who’ve been watching this and wanting to understand what happened.
Preet Bharara: Yeah. Look, over and over and over again, the Muller report based on common sense documentary evidence, interviews with witnesses, essentially credit, where there’s a difference of opinion and a difference in interpretation of an event, and one side is Trump’s and the other side of someone else’s, it almost always credits the other side, which tells you something about the credibility of the president and what Bob Mueller and his team thought of the credibility of the president. Okay. Because it’s inevitable, we’ve doved, we’ve died, we dove in.
Anne Milgram: We dove in.
Preet Bharara: We’ve already doven in to the obstruction thing. But before we get to the specific examples, like you were talking about, there’s been this continuing debate about why on earth Bob Mueller didn’t make a determination about obstruction? You said, while it does not … we don’t say that a crime has been committed. We also don’t say that Donald Trump has been exonerated. I have been speculating for the last several weeks and I’m curious to see if you have a view or a disagreement with my new conclusion, but I’ve been speculating for a number of weeks that part of the reason that may be so is that Bob Mueller and his team thought that the case was so close, that the facts were so close, that the question was so close that they couldn’t really make a determination on whether it was appropriate to say a crime had been committed.
Preet Bharara: Bill Barr made it seem like that was so. And then you read the Mueller report and the preface to section two, that’s about obstruction, to me, it’s kind of extraordinary because it says in a way that I found much more jarring than I expected that very clearly, the special council’s office decided they weren’t going to make the decision to make the call on obstruction, not necessarily because it was so close or so fraught, but specifically because they adopted and accepted the legal conclusion of the office of legal counsel that says you cannot indict or prosecuted a sitting president.
Preet Bharara: But then they say something else that I think is very notable and I don’t think is getting enough attention. I’m quoting from the report. “While the OLC opinion concludes that a sitting president may not be prosecuted, it recognizes that a criminal investigation during the president’s term is permissible, it’s notable,” which is why they were able to do their investigation. And then more importantly they say, “The OLC opinion also recognizes that a president does not have immunity after he leaves office.” And then they say, and this is a big deal I think. “Given those considerations, the facts known to us and the strong public interest in safeguarding the integrity of the criminal justice system, we conducted a thorough and factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.”
Preet Bharara: I guess my question to you is, were you surprised by that number one. Number two, does that sound like it was a punt to Congress and three, was it also maybe a double punt to future prosecutors for a time when Donald Trump is no longer in office?
Anne Milgram: These two pages of the report are worth spending a lot of time on and it’s the introduction to volume two which basically lays out sort of four conclusions that the Mueller team came to when they were looking at the obstruction of justice question. You just essentially articulated number two, which was about the Office of Legal Counsel opinion that it doesn’t permit charging a sitting president, prosecuting a sitting president, but it does allow a criminal investigation during the president’s term. I would just say to your question, they do specifically raise that charges can be brought after the conclusion of a term. And so I think they’re basically saying, we’ve compiled the evidence, we’ve done the underlying factual criminal investigation and we don’t have the authority and we’ll talk about the rest of this, but we don’t have the authority to prosecute the president.
Anne Milgram: So, because we don’t have that authority, we made the decision that we shouldn’t make that judgment of whether or not he should be prosecuted, but another after the president is no longer an office, he could be prosecuted. There’s sort of a footnote in my mind, which is upending a statute of limitations, which is five years and so there’s a timing question there, but also to the United States Congress to have this evidence. Just to sort of go high level.
Preet Bharara: Just pause on that for a second. Do you agree that Bob Muller in no way, shape or form, given his view that it’s inappropriate against the backdrop of the OLC opinion, given his view that one should not make a determination of criminality that he clearly was not punting to Bill Barr because Bill Barr as the attorney general also within the Justice Department obviously is in the same position as Bob Mueller. And if it was inappropriate for Bob Muller to make a determination about criminality, then it was certainly inappropriate, in his view at least, for Bill Bare to make such a determination. And so, this question of whether or not he was leaving it to Bill Barr, I think it was very squarely answered by that analysis. No?
Anne Milgram: There’s no question that he was not leaving this to Bill Barr to make the decision. I agree with you completely. Just to further support that when he gives these four reasons of why they didn’t make a call. Number one is traditional prosecution is a binary decision. You charge or you don’t charge. Number two, there’s an office of legal counsel opinion saying you can’t prosecute a sitting president. Number three, and this is where I think it gets even more interesting is, Mueller really says, “It’s unfair for us to make a call as to whether or not we would prosecute when we cannot charge the president. Because when you charge someone, they get their day in court, they get to put the evidence to the test, they can be found guilty or exonerated.”
Anne Milgram: On page two of volume two Mueller writes, “Fairness concerns counseled against potentially reaching that judgment.” The judgment, whether or not, this is me paranthetically saying, the judgment whether or not to charge the president. So, fairness concerns counseled against potentially reaching that judgment when no charges can be brought. He goes on to talk about the ordinary means for an individual to respond to an accusation is through a speedy and public trial with all the procedural protections that’s around a criminal case. So, what Mueller is saying, I think is … if I made that conclusion, I’m essentially acting like the judge and jury.
Anne Milgram: I’m judging his guilt or innocence publicly and in a way that would be unfair to him and so I’m not going to do it. And you’re exactly right that Bill Barr just stepped in and took that province of the judge and jury by making a final conclusion on the facts when Muller said specifically, “I’m not going to actually make those conclusions.” Barr’s not the fact finder here. Congress is the fact finder. And ultimately as you point out …
Preet Bharara: Or Congress could be a fact finder.
Anne Milgram: They could be.
Preet Bharara: And also and also a future prosecutor. But what also makes this unseemly to me and we don’t have to spend a lot of time on Bill Barr, we should talk about the report, but we did open the day with the Bill Barr press conference. It just seems to me that some of the things that Bill Barr said in the letter don’t square with the report. And on the thing we’re talking about right now, the point we’re making at this moment, my recollection from this morning, although it seems about 150 hours ago, when asked the question about whether Bob Mueller thought it was okay for bill bar to make the call on obstruction that he did, I think Bill Barr said … I don’t have the transcript in front of me.
Preet Bharara: I think Bill Barr said, “I understand from Bob Muller,” I don’t think he said he spoke to him directly, that that was the prerogative of the attorney general. That does not seem to me at all consistent with what Bob Muller thought about this question and what anyone in the Justice Department should be saying on the question against the backdrop of this OLC opinion.
Anne Milgram: And Barr also said that Mueller told him that the OLC opinion on not indicting a sitting president wasn’t a factor and that could not be less true. It’s the first two pages of the obstruction section of the report and Mueller broke the report into two sections, one on obstruction and one on this question of conspiracy with the Russians who are hacking into the election and influencing the election through social media. So, on the obstruction part of the report, the first two pages are what we’ve just gone through, which is a complete explanation by Mueller of why he’s not making a conclusion. Now, here’s my question to you Preet, so you read the first two pages and it basically says, I wanna be completely fair, I don’t think it’s fair, and by the way, I worry that it might leak if I did come to a conclusion, and so in the interest of fairness, I don’t want to do that.
Anne Milgram: But then you read the individual sections, some of which we’ll probably talk about in a minute, and Mueller does a very thorough legal analysis. What he does is exactly what you’d expect to see in a prosecution memo, which is he lays out the facts, he lays out the applicable law and he talks about the obstruction statutes and then he explains. In the obstruction statutes, there are generally three elements. Number one, obstructive conduct, the actions taken. Number two, next is to a pending or potential grand jury proceeding and number three, corrupt intent. And then he goes through each of those elements of the crime of obstruction and he talks about what facts exist under each of them and whether or not evidence exists essentially of those three things.
Anne Milgram: In some ways, does he actually do that? He doesn’t say it’s obstruction, but he does a very thorough analysis.
Preet Bharara: Yeah. What’s interesting is, which is why you can view it as more of a roadmap than anything else, is he sets forth the facts relating to many, many different incidents. In some of them, the laying out of the evidence is a little weaker, it’s not as strong. For example, not to get ahead of ourselves, but just anecdotally, the special council’s office says, with respect to the issue of whether or not the president asked Michael Cohen to lie to Congress, they don’t really think that that’s a very powerful argument based on the evidence that they saw and the witness interviews that they did, but then on other occasions, it seems very powerful, like when the president seems to have told Corey Lewandowski to take action to reign in the Mueller investigation.
Preet Bharara: But he doesn’t say, even though you can tell if you read it all, that some of the factual narratives and legal analyses are stronger than the other. They don’t really sort of rank them. Let me ask you this question then. Going back to something I said at the beginning, I had expected the recitation of facts and law to be very close. And now that I’ve read it and now that I know the reason why Bob Muller decided not to make the call, whether you agree with that decision or not, but now that I know it, I read the obstruction section overall and you can dispute some of the particular incidents as being strong or not strong evidence, but overall, as pretty strong in favor of charging obstruction if the president were not the sitting president of the United States, I expected to see many, many more pages of defenses and acceptance of some defense arguments.
Preet Bharara: And largely, I thought that the Mueller team was dismissive of the constitutional statutory and other legal arguments made by Trump’s lawyers, some of which they seem directly to the special council and a lot of which we’ve seen on TV that either Alan Dershowitz, who’s not the president’s lawyer, but he’s made these arguments that simply because the president has the constitutional authorities to do facially lawful things like fire an FBI director or anything else that that meant he couldn’t obstruct [inaudible 00:20:59] that means, without knowing any other facts or any other evidence, just by itself, it might be extensively lawful. They’re very dismissive of those arguments. How do you weigh? When you read it, do you think it’s close when they thought it was close or not?
Anne Milgram: I’d say two things. First, you made a great point about the arguments that people like Bill Barr have made about the president’s authority under the constitution and that if he’s engaged in constitutional acts that essentially that’s protected. Mueller’s team does an incredible job of rejecting those arguments and really articulating why they don’t hold water. There’s a great line in there talking about, otherwise the president would be above the law. I would just read to you from page eight of volume two on obstruction, which is just before the conclusion when Mueller is addressing these arguments about the question of whether the president can be found to have obstructed justice by exercising his powers under Article II of the constitution.
Anne Milgram: Muller writes, “We concluded that Congress has authority to prohibit a president’s corrupt use of his authority in order to protect the integrity of the administration of justice.” And he goes on towards the end of it to say, “The conclusion that Congress may apply the obstruction laws to the president’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.”
Preet Bharara: Yeah. That’s a very powerful statement and shows what they think overall about the legal arguments. There’s another extraordinary sentence from the report that is getting some attention and I think rightfully so, that shows what the special council’s office thought about some of the factual issues in the case. That’s where the special council reports says the president’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the president declined to carry out orders or a see to his request. That’s kind of extraordinary because in case, after case, after case, throughout the obstruction section of the Mueller report, you have Donald Trump raging, getting annoyed, getting angry and firing off a command at someone telling them to do something.
Preet Bharara: Fire someone, make a statement, rain in an investigation. Time and again, these people, some of them, by the way have not in other instances, fully distinguished themselves as people of integrity. But they stood up to the president on these. That goes for Don McGahn. It goes for Corey Lewandowski, it goes for a White House official named Rick Dearborn, it goes for Jeff Sessions on whether or not he would unrecuse himself. It happens-
Anne Milgram: K. T. McFarland.
Preet Bharara: Mcfarland. It’s not actually something that allows you to clothe yourself with honor. That one of the reasons an obstruction didn’t occur is that other people didn’t see to your requests.
Anne Milgram: But we should be clear on that, that an attempt … under the statute that Mueller seems to focus on, and he looks at all the obstruction statutes but he focuses a lot on 1512 subsection C II, which is more of the catchall, which also includes attempt. The bottom line is if you attempt to obstruct justice, even if you’re not successful in getting somebody to write the false email or in getting somebody to fire the sitting attorney general, it doesn’t mean that you didn’t engage in obstruction. Just to that one point, Preet, I would say that your question about overall … this question of … I did a CNN show this morning where one of the correspondents said, “Obstruction is a jump ball.” Meaning there’s evidence on both sides and you can’t call it one way or another.
Anne Milgram: I could not agree with you more. That’s not the case. What I see here is a case that supports, an evidence that supports a prosecution of the president if you could charge a sitting president. I think that this lays out a very powerful set of facts and law and sort of evidence where you could walk into a grand jury and present a case on obstruction of justice against the president. Now, we could talk about which counts would be stronger than others, what would you bring? What would you not bring? But any suggestion that there is insufficient evidence that the president obstructed justice, that’s not what you find in this report. This is not a report that says, the president is not guilty and the report specifically says it doesn’t exonerate him.
Anne Milgram: But beyond that, I think they really do make a case for ways in which the president worked actively to thwart the investigation. Fire the special council, fire Comey and others. It really is devastating to the president and I think important as part of this larger conversation about what’s taken place over the last two years that we not ignore that.
Preet Bharara: Yeah. No, I think absolutely that’s true. You have said it, it’s sort of amazing soundbites that come out of the report, including Don McGahn, then White House counsel saying, “I’m not going to be a person who’s gonna engage in the Saturday night massacre and other things like that. One more overall question on obstruction that we now have an answer to, and this is the question of why the special counsel didn’t try to compel the testimony of Donald Trump and obstruction. A lot of people have been saying on television and in the papers that one very smart and clever thing that the president did or as lawyers got him to do was never sit down or even answer written questions on obstruction ’cause he would’ve gotten himself in a lot of trouble ’cause you see how much lying there is that goes on and maybe that sort of saved his skin. Some people have been critical of the special counsel.
Preet Bharara: One of the few things that I predicted correctly in this whole series of events is that I assumed that one of the reasons that the special counsel didn’t seek to compel testimonies because of the time delay that would result in. We see here in the report that the special counsel addresses why, and I think this is a question in a lot of people’s minds and a lot of listeners minds why it is they didn’t try to get the president to speak on this issue if one of the main issues is what your state of mind is, we wanted to ask the president. The special counsel said, “We made that decision in view of the substantial delay that such an investigative step would likely produce at a late stage in our investigation, which I think would have taken us pass the next election if the president decided to fight that subpoena.
Preet Bharara: And then they also said, we assessed that based on the significant body of evidence we already obtained to the president’s actions and his public and private statements, etc, we could make an assessment. They say also, finally, that in lots of garden variety obstruction cases, those cases are made based on circumstantial evidence and inferences that you ask the jury to make because often the person will not speak to you. It’s difficult to get them to speak to you. And they, of course always have their fifth amendment right against self incrimination. So, it’s not unusual to make a final assessment about obstruction without talking to the individual you suspect of it, but that’s kind of interesting I thought.
Anne Milgram: I thought one of the most interesting parts of the sentences you just read related to the special council’s determination that they had sufficient evidence to make a determination of whether or not there was corrupt intent. There’s no question in my mind based on reading this report, there are a number of instances where the special council finds that the president was not truthful. And so, it seems to me that the president’s lawyers did make a good decision. As a defense lawyer matter, they were probably right that walking the president into an interview could have led to additional lies or untruths, and so they wanted to avoid that. But it’s also equally clear that the special counsel did a very thorough investigation and felt that the special counsel was able to make a call based on the intent of the president.
Anne Milgram: What’s also pretty interesting about this, and it’s worth maybe noting ’cause you and I probably expected as former prosecutors, but one of the things that’s interesting is the people who are witnesses here whose testimony the public can now read, people like Don McGahn, the former White House counsel, K. T. McFarland, the former deputy national security advisor. There’s a whole list of people who were interviewed as part of the investigation and Mueller credits a lot of their statements and a lot of those statements are contrary to the interest of the president. So, people do come forward-
Preet Bharara: That’s one reason to credit them, right?
Anne Milgram: Yes. People do come forward and cooperate with investigations in a way that I think is important to note and you really do see that here. Mueller is able to lay out the facts and to do the analysis here because of that cooperation.
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Preet Bharara: At the risk of redundancy, I want to go back to this sentence that you pointed out that I read a second ago and that is because I think a central question here, and I don’t mean to belabor it, but I think it’s really, really important. Essential question here is, but for the fact that Donald Trump is a present United States, would it be appropriate to charge him now? That bears on the question of what his culpability is, how the public should assess his conduct, what his exposure is when he leaves office, but also bears on the question of whether or not it would be appropriate for Congress to consider impeachment. So, all these clues about whether or not the special counsel really did think they had enough to charge an obstruction is incredibly important.
Preet Bharara: Where they say that one of the reasons that they decided to forego an interview is because we had sufficient evidence to understand relevant events and to make certain assessments without the president’s testimony. That’s not a neutral statement. That seems to me a thumb on the scale of, yeah, we knew bad stuff was going on, because elsewhere in the document, especially in portions where they’re talking about conspiracy, they do say that because of certain actions by certain people, the holding of documents and encryption and various other reasons, we couldn’t make a really good clear assessment of the conduct and of people’s intent. They don’t say that here on the question of obstruction, which is the one thing they say they’re not going to decide. The more I think about it and then talking to you and hearing your views on it, the more I think that, but for the fact that the president is the president, he would be in serious legal jeopardy on obstruction.
Anne Milgram: Yeah, I agree with that. Did you know, and this is one of the sort of questions I had as I was reading the report for you about Mueller’s … this conversation whether you need an underlying crime to commit the crime of obstruction. The report says pretty clearly, “The injury to the integrity of the justice system is the same regardless of whether a person committed an underlying wrong.” But it does go on to look at this question of at the time of the initial investigation into Russian interference with the American election, the report does go out of its way to state that that moment in time the president did not believe, he had been told by Jim Comey, he was not a subject or a target of the investigation, that it wasn’t about him.
Anne Milgram: That that of course is not a bar to being prosecuted for obstruction of justice. You can obstruct an investigation whether or not you’re a target of that investigation. But did you find that language compelling or what was your reaction to it?
Preet Bharara: I think it’s a correct statement of the law that Mueller adopts and that other people have said and you and I agree with. That there’s no legal requirement that someone would be guilty of an underlying crime to prosecute someone for obstructing an investigation into that crime. For among other reasons, it would provide incentive to everyone in the country who’s under investigation to obstruct effectively so that there could be no underlying charge, and therefore you’re off the hook on obstruction. So, it makes no sense at all.
Preet Bharara: It is not crazy when the special counsel says, you can imagine circumstances in which a good faith belief that you haven’t done anything wrong and an investigation was not being done properly, it could in some circumstances there on the intent of the person. Was the person really intending to obstruct? I don’t fully buy it. The worst version of this, kind of foolish version of this that I heard come out of the mouth of attorney general Barr this morning that a lot of people have commented on was, “You have to understand the context in which this was happening. President didn’t think he’d done anything wrong. He was really frustrated and really angry.” As it frustration and anger can be a defense. Most people, as lots of other folks had been pointing out, that’s usually the state of mind when you actually engage in prosecutable obstruction of justice.
Preet Bharara: You’re frustrated and angry that you might be charged with something. I think it’s a complicated issue. I do think that there’s a circumstance in which it could have some bearing. The way that Bill Barr tried to gloss over it, I think doesn’t wash.
Anne Milgram: Yeah, and it feels to me that the president could have engaged in obstruction for a variety of different reasons and could have had corrupt intent and it could have been … one reason people obstruct justice or try to thwart investigations is because they’re the subject of an investigation. Another is that people close to them or the subject of an investigation, which was certainly the case here, Michael Flynn was prosecuted, Paul Manafort was prosecuted. There are countless examples of people who were being prosecuted around the president. And then another, which was clearly articulated in the report is for it to avoid embarrassment. The president was concerned about the legitimacy of the election and thought that the investigation under cut it.
Anne Milgram: There could be a lot of different motives for why someone would engage in this behavior. But the real question is do they meet those three elements of the crime of obstruction? The obstructive conduct, the nexus to a pending proceeding in the grand jury or potential proceeding and corrupt intent. It is relevant to intent, but I really pushed back against any idea that the fact that the president did not commit the underlying crime of conspiracy with Russia to hack the computer emails or engage in the social media, distortion of the election. Just because he’s not involved in that does not mean, to me, that he cannot be guilty of obstruction of justice.
Preet Bharara: I agree with that. Looking at some of the examples of conduct that could or could not feed a finding of obstruction, one of the biggest things that has happened in the last two years and in fact, probably the proximate, not probably it was the proximate cause of Bob Mueller being appointed in the first place. That is whether the firing of Jim Comey itself and they spend a lot of pages talking about this, and it’s on everyone’s mind, was the actual firing of Jim Comey itself. That act itself was that obstruction. On that score, maybe you read a little differently from how I did, but I’m curious to know what you think. The Mueller team is a little bit sympathetic. I thought in some respects to the Trump folks argument that on the one hand, there’s a lot of evidence that he wanted the Russia investigation go away and he gave that statement to Lester Holt on television.
Preet Bharara: He said these weird things to the Russian officials in the White House, but on the other hand, a little bit in his favor, not because it makes them look good, but on the criminal issue, he wanted over and over again, Jim Comey to say publicly that “I, Donald Trump was not personally under investigation.” And frustration with his refusal to do that, which he thought was in subordination to the extent, that was the cause of his firing. If that was the exclusive cause of his firing, that does not lend up a ton of weight to an obstruction finding. What’d you think of that?
Anne Milgram: I think that’s right. What persuaded me otherwise, and I think what Mueller does here is he puts out all the evidence which I really respect and think is positive. And there is a really close Lincoln time between when Jim Comey .. he testifies before the House Permanent Select Committee on Intelligence and he talks about the fact that there is an investigation into Russia that’s happening and into the Trump campaign and he does not say, “As the president has requested, but the president is not a subject or target of the investigation.” So, it’s clear that the president acts on Comey pretty close in time to that, that he is frustrated by that. But it’s equally clear that there are a number of incidents and events that Mueller corroborates or makes findings of credibility on including the president meeting with one on one with Comey in the Oval Office, which Mueller finds … look, he cleared the room, which he knew that he wanted to have this as a private conversation saying, “I hope you can see a way clear to letting this go to letting Flynn go. I hope you can let this go.”
Anne Milgram: Mueller goes on to talk about, to basically explain why he credits Comey. Then he goes on to look at other things that are surrounding this, and he talks about the Lester Holt comments. He talks about the comments to the Russians in the Oval Office. He really, ultimately, I think it’s possible that there are multiple motives for why the president wanted to fire Comey. But the conversation that I’ve found really important in this part of the report is that he talks about saying to someone, Chris Christie, basically, “I’m gonna a fire Comey. This cures the Russia problem. This puts it to rest.” And Christie says to him, “No, it doesn’t end the investigation.” At which point Trump gets Comey in the room and tries to basically say to him, “Here’s what has to happen. This has to go away as it relates to Flynn.”
Anne Milgram: There’s so much here that while Comey’s refusal to say Trump isn’t under investigation is a part of it. It’s also very clear that Trump was doing anything he could to try to stop the investigation. One of the things that, I maybe shouldn’t admit that I laughed at this, but I just really couldn’t believe it is how many times the president tries to get sessions to unrecuse himself, which I didn’t know that was a word.
Preet Bharara: Yeah. I don’t think it is a thing. Well, what’s crazy about that also is, if you think about it, and maybe other people have said this, but I was struck by when I was reading the report today, the very fact that Donald Trump wanted his AG to recuse himself and wanting them to do it because he said, “You’re supposed to protect me.” The very fact that that was in the mind of the president is enough to have him be recused. It’s the exact central issue regarding favoritism and not being neutral. All right, so Anne, what happens now? Did Donald Trump resign in disgrace? Does Bill Barr become knighted, the impeachment proceedings begin immediately, what happens?
Anne Milgram: Yeah. The only thing I know for sure is that for the next 48 hours, this is gonna be all over the TV and in the newspapers and we’re gonna keep talking about it. To that end, I would really encourage people to read the executive summaries at the beginning, and maybe we can post them on the CAFE website because it’s worth reading. There about eight or nine pages each. Volume one executive summary and volume two, it’s pretty compelling reading too. You will not fall asleep when you read it. The first thing I know is that we’re going to keep talking about it. The second thing I think it becomes … there is a question of whether Mueller testifies if he subpoenaed. I’m sure he will testify. But I think the more significant question is, does Congress decide to take any action?
Anne Milgram: Do they want to? And obviously there’s still a question of Congress seeing a fuller … it from Barr statements and the president’s statements that some members of Congress would see a fuller, less redacted report and so that’s a pending question. But then I think the bigger question is, what does Congress do with this? Do they hold hearings? Do they try to explore some of these incidents? Do they seek impeachment? Do they have a discussion about whether to seek impeachment of the president based on obstruction? What do you think happens next? I sort of think this turns to become a more political question. The other thing we should look for is that it says in the report that Mueller made 14 referrals of potential investigations and prosecutions and those would have been made to other U.S. attorney’s offices and prosecutor’s offices.
Anne Milgram: Of the 14 that he made, we know, we know two of them, essentially Michael Cohen and Greg Craig, both of whom had been charged with crimes, but there are 12 outstanding referrals. And so that’s another thing we should watch for.
Preet Bharara: Yeah. On the issue of impeachment, I mean that’s a roiling debate that will persist cause some people think maybe it’s not a great idea, even if they think the president has done a lot of bad things. I think just before we started taping, Steny Hoyer, the House majority leader, Democrat, said as follows, “Based on what we have seen to date, going forward on impeachment is not worthwhile at this point.” He reportedly said. And then he reportedly went on to say, “Very frankly, there’s an election in 18 months and the American people will make a judgment.” That’s the view of Steny Hoyer, who’s a high ranking official on the democratic side in the house. I guess there will be a lot of debate, a lot of hand wringing, and we’ll see what happens.
Anne Milgram: That’s also consistent with what speaker Pelosi had said about not looking for impeachment. So, we’ll have to [crosstalk 00:43:20].
Preet Bharara: It’s sort of an odd moment in the wake of people just digesting this document that I think is very bad for the president to say, in this precise, to say in the middle of this maelstrom, “Hey guys. No impeachment.” Obviously trying to send a signal to the members and maybe to some of the committee chairmen, and in particular Jerry Nadler.
Preet Bharara: Obviously we could keep talking about this for a long, long time, and we do. To listen to the rest of our conversation, become a member of the CAFE Insider. Members get access to full episodes of the Insider Podcast bonus material from Stay Tuned and more. In addition to today’s episode, we’ll have more to discuss on Monday’s episode of CAFE Insider when Anne and I typically break down the headlines and make sense of what’s happening, so head to CAFE.com/insider and become a member. That’s CAFE.com/insider. To the many of you who have already joined, thank you for your support.
Preet Bharara: If you like the show, rate and review it on Apple podcasts. Every positive review helps new listeners find the show. Send me your questions about news and politics. Tweet them to me at Preet Bharara with the hashtag #askpreet, or give me a call at 669-247-7338. That’s 669-24-Preet. Or you can send an email to staytuned@CAFE.com. Stay Tuned is presented by CAFE. It’s produced by Kat Aaron and the team at Pineapple Street Media, Henry Molofsky, Joel Lovell, Jenna Weiss-Berman, and Max Linsky. The executive producer at CAFE is Tamara Sepper, and the CAFE team is Julia Doyle, Calvin Lord, Vinay Basti, and Geoff Isenman. Stay Tuned is produced in association with Stitcher. I’m Preet Bharara — Stay Tuned.