Update on the Mueller Report

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Special Counsel Robert Mueller’s Report on The Investigation Into Russian Interference In the 2016 Presidential Election was released to the public on April 18th, 2019, capping off a nearly two year-long investigation into the allegations of collusion between the Donald Trump campaign and Russian government officials during the 2016 election. The conclusions of the report are divided into two volumes. Volume I details the extent to which Russia attempted to influence the outcome of the election. Volume II addresses the claims of obstruction of Justice. What do the conclusions mean for the Trump Administration and the country going forward? 


Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law

John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation



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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Practice Groups, was recorded on Monday, April 29, 2019, during a live teleforum conference call held exclusively for Federalist Society members.          


Dean Reuter:  Welcome to the Practice Groups teleforum conference call as today we get an update on the Mueller Report. I'm Dean Reuter, General Counsel, Vice President, and Director of Practice Groups here at The Federalist Society.


      We're extremely pleased to welcome back two return guests to our teleforum conference call today. We're going to get opening remarks from each of them of about 10 to 15 minutes, maybe some back and forth, but then, as always, followed by questions from the audience.


      We'll hear first from John G. Malcom. He's Vice President at the Institute for Constitutional Government and Director of the Meese Center for Legal and Judicial Studies and a Senior Legal Fellow at The Heritage Foundation. He'll be followed by Professor John C. Yoo, Emanuel S. Heller Professor of Law at the University of California at Berkeley School of Law. With that, John Malcom, the floor is yours.


John Malcom:  Well, thank you, Dean. And it's great to be on a program with John. So the Mueller Report is now out. We're going to begin to get reactions to that report this week when Bill Barr is scheduled to go testify before both the House and the Senate. The 448-page report was broken down into two volumes, more or less each one being the same size. Volume I has to deal with the so-called collusion issue, and the Volume II has to do with obstruction of justice.


      With respect to Volume I, Bob Mueller came out fairly definitively and said, essentially, two things. One is that the Russians clearly attempted to interfere with the election in 2016, and second, that there was no coordination between the Trump campaign and the Russians or any conspiracy to interfere with the election between members of the Trump campaign and the Russians.


      The way that the Russians attempted to interfere with the election -- primarily two ways. There was a hacking of the DNC servers by the Russian intelligence service, GRU, and then that information was fed into wiki leaks and other sources that disclosed all of this information. And the second was through a social media disinformation campaign that was conducted by the Internet Research Agency, which is also connected to Russian intelligence. They spent, actually, very little money and got huge bang for their buck, not only in terms of the social media postings that were disseminated, but certainly in terms of all of the time and effort that's been spent with respect to the Mueller investigation.


      The collusion investigation started out as a counter-intelligence investigation. It metamorphosed into criminal investigation. And there is no question that the Russians made many, many attempts to ingratiate themselves with people in the Trump campaign. They had contacts with this guy George Papadopoulos. They made some contacts by inviting Carter Page over to give a speech and then made entreaties to him. They had dealings with Michael Cohen who was negotiating on behalf of the President with respect to a potential Trump Tower Moscow, and they were trying to arrange meetings between Putin and Donald Trump.


      And they also had extensive dealings with Paul Manafort who, for a brief time, was the President's campaign manager. And he went so far as to share polling data with a guy named Konstantin Kilimnik who's a business partner of his of long standing. And there were also connections to another Russian oligarch named Oleg Deripaska. They had ongoing legal disputes, and Paul Manafort was trying to feather his own nest, it seems, by maintaining these lucrative lobbying contracts and settle his legal disputes with this guy Deripaska.


      The closest they came to any kind of coordination at a high level was this June 9th meeting that took place at Trump Tower that was attended by Don Jr., Paul Manafort, Jared Kushner. They had been told ahead of time that some Russian people were going to be showing up that had dirt on Hillary Clinton. That lead to a somewhat infamous email by Don Jr. that says, "If this information is what you say it is, then I love it." It turns out they showed up with no dirt on Clinton, but they had a Russian lawyer who was lobbying the folks there to try to repeal the Magnitsky Act, which is a human rights act that impacts various high-ranking Russian officials.


      After the election, there were additional contacts. There were meetings between some Russian officials and a close confidant of Steve Bannon's that took place on the island of the Seychelles. There was the call between incoming National Security Advisor Michael Flynn and Sergey Kislyak in which he urged the Russians not to retaliate after President Obama imposed sanctions upon them. But at the end of the day, they were able to reach a conclusion that while there were actions that certainly were suggested, that there was no coordination and no conspiracy.


      All the real action took place in Volume II which dealt with the obstruction of justice allegations. Bob Mueller declined to reach a conclusion, a legal conclusion one way or the other. He made it quite clear that his report was neither condemning the President, nor was it vindicating him or exonerating him. In his executive summary, it's suggestive that perhaps he's influenced by the guiding opinion of the Office of Legal Counsel that a sitting President can't be indicted. He, of course, is not immune once he leaves office, but there was certain concern about how a sealed indictment or an ongoing investigation could impact on the President's ability to govern.


      I think Mueller was also likely influenced by the fact that there was no underlying crime. There was no collusion. That was the focus of that investigation. It is almost always the case that when somebody tries to obstruct an investigation, they try to obstruct it because they know that they are, in fact, guilty of the underlying crime that is being investigated. Here, the President was not guilty of that underlying crime. They were also probably influenced by the fact that Trump produced lots of documents to the Special Counsel's Office. He didn't stop subordinates from speaking to the special counsel. He submitted written answers to the special counsel and, ultimately, he waived any privilege objections he might have been able to assert with respect to this report being released.


      It's also a fact that President Trump has no experience prior to being elected President in Washington D.C. He was a businessman from New York. He's the first non-general, non-elected official to hold the office of the presidency, sort of used to operating in a businessman milieu, telling underlings to go fix stuff and demanding loyalty. And there was also no question that part of his reaction to the Mueller investigation was the fact that he had long claimed that this investigation was a witch hunt.


      He was clearly frustrated by this, believed that this thing was going to hang like a millstone around his neck, damaging his credibility, casting doubt on the legitimacy of his presidency, making it difficult for him to govern while this investigation was ongoing. And he was right about all of those things. He was very frustrated with the fact that former FBI Director Jim Comey had told him three times in private that he was not under investigation, but that he would not say that publicly. He was very frustrated that Jeff Sessions had recused himself from oversight of the Mueller investigation. He made comments privately about how he had no one there to protect him in the Justice Department.


      He talked about his former lawyer, Roy Cohn, talked about the role that Bobby Kennedy played in the Kennedy administration, that Eric Holder played in the Obama administration. He was clearly frustrated at the fact that Hillary Clinton appeared to get a pass from Jim Comey and the FBI, and that a document, specifically the Steele dossier that had been generated and paid for by the DNC and the Clinton campaign, had been used to initiate an investigation against him. And he was also very frustrated that when Mueller got appointed that he surrounded himself with people at the Department of Justice and outside the department who clearly had, based on their political contributions, Democratic leanings.


      That having been said, the President engaged in a number of activities that are cited in the report that Mueller said were ill advised and could be interpreted as attempting to obstruct an investigation. He reached out to the Director of National Intelligence, the CIA Director, the NSA Director, to get them to issue supported statements about him. He reached out directly to Jim Comey several times, both telephonically and in meetings, ignoring advice that he had received from White House Counsel Don McGahn not to contact Comey directly. According to Comey, Trump demanded loyalty and asked him to go easy on Flynn. He threatened to fire and eventually did fire Jim Comey, and initially tried to make it appear as if this had been Rod Rosenstein's idea. He wanted Mueller fired and cited all kinds of alleged conflicts of interest that Mueller had with respect to the investigation. These were matters that had been looked into by DOJ. Don McGahn said that these were frivolous arguments.


      He tried to get Sessions to un-recuse himself, issue statements saying that Trump was being treated very unfairly, tried to get him to tell Mueller that he should focus only prospectively to try to prevent meddling in future elections and forget about the past election. He publicly criticized Jeff Sessions, tried to get him to resign and eventually fired him. He had a hand in drafting a statement that some people considered misleading about the June 9th meeting that took place at Trump Tower. He told staffers initially not to disclose emails that discussed setting up that meeting. He said some supportive things about Michael Cohen up until the time Michael Cohen started cooperating with the special counsel, at which point he said he was a rat, and he started condemning rats who cooperate with prosecutors. He continues to say supportive things about Michael Flynn and Paul Manafort, suggesting that perhaps a pardon might be in the offing.


      My general belief is that the President was really helped out, actually, by a couple of things. One is that the Russians did not show up at that June 9th meeting with dirt on Hillary Clinton. If they had, and if the President's campaign had disseminated that information, there might have been a closer question about campaign finance violations, coordination, etc.


      And the other thing that really helped him was that a lot of his underlings were instructed to do things by the President, and they simply refused to do them. The Deputy National Security Advisor K. T. McFarland declined to put out a statement saying that Trump had not asked Flynn to talk to Kislyak about sanctions. Corey Lewandowsky, Rick Dearborn declined to deliver messages to Jeff Sessions asking him to un-recuse himself and to limit the Mueller investigation. Don McGahn, the White House counsel, declined to fire Mueller and to make what he believed to be a misleading statement about his interactions with the President in that regard. I really think that, as frustrating as that might have been to the President, it ultimately inured to his advantage.


      In terms of where we are now, there's a lot of information other than the Mueller Report that's floating out, that's already been released. It's out there, and more stuff still to come. So the Department of Justice's Inspector General has issued his report on Operation Midyear. The report's out about Lisa Page and Peter Strzok and their activities with respect to these investigations. There was a report about Andrew McCabe leaking information and lying about it. And there was a report about Jim Comey's conduct with respect to Operation Midyear.


      And there's a lot of stuff still to come. A DOJ IG report will come out shortly about whether or not Jim Comey divulged classified information. DOJ IG report is going to come out about FISA abuse. Bill Barr has now said that DOJ is going to investigate whether spying occurred into the Trump campaign—he said spying did occur—and whether there was a proper predicate that existed in order to do that. The Senate Judiciary Committee is going to look into these matters.


      And you're starting to see some stories pop up not only about the Russian sources that cooperated with Christopher Steele or gave him information, but also stories coming out of the Ukraine about whether people in the Ukrainian government tried to help the Clinton campaign by leaking financial information, secret financial information about Paul Manafort's lobbying efforts for the former Ukrainian President and Russian puppet Viktor Yanukovych. And of course, there's a Roger Stone trial and potential impeachment proceedings.


      So there's a lot of information out there. It's good news for the President for the most part, and still a lot more stuff to come. And with that, let me stop and turn it over to John.


Prof. John Yoo:  Great. I want to thank Dean for putting the call together, and for John to join me on the podcast. I'm sorry, not podcast, phone call, conference call, whatever the hell this is. [Laughter] It's hard to keep all the modern media straight. Twitter stream.


      I really appreciate John's summary of what the report did and did not do, and I'll just -- some observations, mostly focusing on the constitutional issues of Volume II. So I think one thing is we ought to remember is I think some supporters of the President made a big mistake attacking Mueller all these months. I think John was, I certainly was a big supporter of Mueller. We served together after the 9/11 attacks in the Justice Department, and I thought Mueller was the gold standard for federal prosecutors.


      And I was confident that if the President did not commit -- not collusion, but conspiracy to violate a federal law, and that Mueller did a good job investigating him, then he cleared him, that would be definitive. And it actually would be to Trump's benefit. And Trump, I think, is reaping those benefits now, despite all the criticism that he launched on Mueller and the ways he kind of slowed the investigation down by resisting it because I think this part of the report is definitive. I don't think there is any serious case to be made any longer that the Trump campaign conspired.


      As John said, that doesn't mean the Russians didn't try to interfere. I mean, certainly, they tried. It's not clear whether it was to any good effect, but they, of course, tried to influence the election. I'm not surprised they tried. I mean, we try to influence other people's elections all the time. I don't think it had much effect, but I think Mueller has settled the matter about whether the Trump campaign actually committed any kind of conspiracy to collude or conspiracy to violate federal law by breaking into computer servers, and spreading classified information, and so on.


      So I think Volume II, the report about whether the President committed obstruction, extremely interesting. Of course, this is where a lot of the action is going to keep going on in the future. I think, just as a factual matter, you read through Volume II and Trump does not look good, not in terms of the law, but just in terms of the way the White House operates, and the way President Trump operates. It sounds so chaotic with multiple groups of people fighting with each other, and the President sort of encouraging conflict, and then sort of secretly acting outside the knowledge of his advisors and any kind of standardized process to engage in what I would think of as small-ball politics, frankly, and, I think, misguidedly looked like he was trying to affect the investigation which I think was a mistake because he didn't do anything, we now know. Certainly doesn't act like an innocent man, even though it turns out he was innocent.


      It's interesting to look at why Mueller did not indict on obstruction. As John said, first there is an OLC opinion at the Justice Department which is binding on the Executive Branch and certainly within the Justice Department itself that no sitting President can be indicted. If that's the case, then you sit there and you ask, "Why did Mueller conduct any further investigation?" It looks like Mueller figured out pretty early on that this story of collusion was flimsy and nonexistent, so why is there a Volume II at all? If OLC's opinion is binding, there should not be any discussion of obstruction because it's impossible to indict President Trump.


      This is interesting. Mueller says that one reason why is because he didn't have enough evidence. He couldn't really make any conclusions about intent, but he wanted to -- the [inaudible 16:55] says he wants to preserve the evidence and the memories while they're fresh. One question is why would you do that? And so Mueller says one reason why is very clever of them, and I think is something that was kind of overlooked in the initial reports about the Mueller Report. Mueller says the reason the Justice Department still thinks that you don't indict sitting presidents is because you don't want to, what he calls, this is a quote, "potentially preempt constitutional processes for addressing presidential misconduct." And then he drops a footnote and mentions impeachment. And so I think Mueller quite obviously put together this obstruction report almost like a referral to the House of Representatives and its impeachment function.


      But let me talk a little bit also, then, about the merits before I get to impeachment about whether the President could have actually committed obstruction. And it's following up again on John's comments. One is it's a kind of funny thing. To have obstruction at a certain point you need to have -- sorry for the reference to first year criminal law, but we all know you need to have actus reus. You need to have an act, and you need to have the mens rea; you need to have the intent.


      And so it's funny. Sometimes, Trump clearly had the intent but there was no act, like when he was saying, "Hey, why don't you write an email that's a little bit different than the facts?" Or, "Why don't you call this guy and try to see if Sessions will shut down the investigation?" He called up Corey Lewandowski, of all people. And for the first and only time, I think Lewandowski did the right thing, which was he didn't call Sessions. But you had -- Trump might have had intent, but he didn't have an act.


      And then you have times when he had an act, but he had no intent. So for example, things that the President did which were in his constitutional authority, in fact, only the President could do, like firing Jim Comey, those, I think, could not be obstruction because Trump could easily have a good faith reason for firing Jim Comey. In fact, from what we know now, he should have fired Jim Comey. He should have fired him a lot earlier. Those could not be obstruction, so the only way I think you could have proven obstruction is to not focus on presidential acts, of which a lot of these incidents Mueller talks about in Volume II are. But you have to talk about things that presidents would do that would be just the same as if a mob leader did it, like burning evidence, tampering with evidence, coercing witnesses, and so on. Often, these are done in ways that look plausibly or facially legal. It's the intent that matters. Why did you offer to take care of that witness's family, or so on.


      The problem was -- and here, I think this is an interesting thing that hasn't really been focused on is you can't prove that unless you can make some judgement about the intent of the President. And they could not form an intent of the President. They say this repeatedly. And the reason why is because they never had an interview with the President. I think Mueller actually got quite outfoxed. I don't think I was ever going to have to say this. I think he got outlawyered by Rudy Giuliani, I really do, because Giuliani refused to allow the President -- make the President available for an in-person interview. There were only written questions, and in the written answers, they refused to address any obstruction questions. And so I think it made it actually legally impossible for Mueller to make out an indictment because he had no way to determine President Trump's intention.


      Related to that, another interesting constitutional aside about Volume II is Mueller then says, "We chose not to ask for Presidential interview. We decided we could get one. We decided we could have gone to court and subpoenaed the President and forced him to testify, which would have triggered a constitutional confrontation." And then, right, of course, this is no longer Mueller talking, this is me talking. And what if Trump refused? Then you have stepped beyond the Watergate tapes case because even in the Watergate tapes case, Nixon produced the tapes in response to a court order. People always wonder what if Nixon had said, "No, I'm not producing the tapes." Well, I think Trump would likely or may have refused to obey a subpoena. Then we really would have been in constitutional untested waters.


      So let me just finish up by saying I actually think that this is the right outcome. I think we have been on this 40-year mistaken voyage and a huge constitutional error, and that is using independent prosecutors or special councils or whatever you want to call them, using the criminal law to try to contain, investigate, and even punish a President who's accused of abuse of office. It started with Watergate, and then we did it with Reagan and Iran-Contra, and Clinton with Whitewater, and now President Trump with Russia. I think we should all see that this was a terrible, terrible mistake. It's really not possible for a prosecutor to fully conduct an investigation without raising so many serious constitutional issues. It's not really where we get to the truth.


      Plus, it warps the criminal justice system, and more so, I think it relieves Congress of doing its constitutional duty. If Congress -- the Framers created impeachment as, really, the only mechanism to contain presidential abuse of power. It's sitting right there in the document. I think what we've been doing -- it's kind of like the administrative state. Congress didn't want to take on the political responsibility and accountability that's called for in the Constitution. They're very happy to have that power essentially exercised by some independent, unaccountable government official like a special counsel so that they don't have to do the work, and take the political blowback, and make the tough choices. I think this has been a mistake, and, hopefully, even people who are critics of President Trump may realize this, and maybe Volume II forces us to go to the channels that the Constitution sets out, which is impeachment.


      So thanks, John, and thanks Dean, and look forward to questions.


Dean Reuter:  Well, thank you both. I want to give John Malcom maybe a chance to respond, but let me see if I can pick up on a thread that John Yoo was talking about and maybe hear John Malcom's thoughts on that, and that's the idea of an independent counsel or a special prosecutor. Professor Yoo outlined that pretty well for us. The independent counsel statute, of course, after the Clinton investigation sort of died of its own weight, it expired, and then we got the special counsel statute. Is there any chance of that being -- I don't know if it has a sunset. I imagine it doesn't, like the independent counsel sort of did, but do you see any long-term fallout from this report for the notion of a special counsel or an independent counsel?


John Malcom:  So let me answer that, and I'd also react to a couple of things that John said. First, one thing that John said I think is actually right, which is about [Laughter]—a levity contest, right?—but this is particularly right. And I was surprised to hear him say it, but I think it's right. I think that Giuliani outfoxed Mueller in this regard. I mean, Giuliani made it quite clear. He kept saying that this was going to be a perjury trap, and I think at the end of the day, he realized that since he was getting all of these documents and he was getting all of these other witnesses, that Mueller was going to get the facts that he needed about what happened. What he wasn't going to get is what the President was thinking at the time those acts took place.


      And whether or not the President was going to deny -- Don McGahn says that "the President told me to do this." And the President denies that and says, "I never told him to do that." Then they would have a conflict in testimony. Somebody is not telling the truth, and you could conceivably get him for perjury. So I think that Giuliani made the very sensible decision that this is not about Mueller getting the facts. Mueller is going to have all the facts. This is about getting denials from my client and figuring out what his intent is, and no good can come out of that. So I'm not going to let him. I will answer written questions, but I'm not going to let him be interviewed. And Mueller had a decision to make at that point about whether he was going to drag out this process by taking this to court or end this. And he decided to end it, and so I think that John was absolutely correct that Rudy Giuliani, in this regard, outfoxed Bob Mueller.


      Now, with respect to the special counsel and prosecutors writing reports, I don't think there's going to be any kind of an appetite to bring back the independent counsel law. Both sides have gotten burned by that, and I don’t think, because there are periodically going to be situations like this that are going to arise, I think that special counsels will remain with us. But John raises some very good points. He says, "Look, this should really be up to Congress. Prosecutors shouldn't be writing reports like that." And in part, I suppose they do so that Congress can duck this, but also because prosecutors have certain tools that Congress doesn't have. They can issue subpoenas, they can immunize witnesses, they can compel process in ways that are neater, cleaner, and faster than Congress can do, but there is a risk to writing these reports.


      And in fairness to Bob Mueller, this wasn't a report for dissemination. It was a report to Bill Barr, and Bill Barr decided how much to disclose and not disclose. But we all castigated Jim Comey, and correctly so, I think, for going out there and making an announcement, regardless of what you think of the merits of this announcement, that no reasonable prosecutor would prosecute Hillary Clinton with respect to her use of a private server and this classified information. And then, having announced that she's not going to be charged, totally pillorying her in terms of her activities surrounding the use of those servers. He was condemned for that, and I think rightly so. And here, you have Bob Mueller -- he didn't make a definitive decision, but he certainly didn't say, "Okay, now I think the President should be prosecuted for obstructing justice." And then he lays out a whole bunch of fact that, suffice it to say, do not portray the President in a favorable light. So he is not initiating a prosecution while condemning the President.


      And other ramifications of all of this is that there were, both in terms of the interviews that Mueller conducted and in terms of the release of this report, there was an awful lot of arguably, or in some cases probably not even arguable, Executive privileged material that all got waived. And whenever there is a waiver of Executive privilege, it sets a precedent of sorts. It doesn't mean that there's a legal argument that in the future something privileged can be waived, but it exhorts a whole bunch of pressure on presidents to waive the privilege, saying, "Look, Trump did it with respect to this Mueller report. You should too, and if you're not, it's because you're covering something up." So there are long-term ramifications to issuing reports like this, both in terms of what they say about the people who are under investigation and also about how the conduct of the presidency takes place.


Dean Reuter:  John, do you have a further thought before we turn to the audience?


Prof. John Yoo:  I agree with some of what John said there that prosecutors may be superior at getting at the truth than Congress. They have certain tools, like a grand jury for example. One interesting thing that also is worth saying is that the Founders did put the impeachment power in Congress, and they did realize that Congress would be a political body, not just a legal body. And you hear people saying now, particularly critics of the President, "Well, the impeachment idea is unrealistic. You can't expect Congress to impeach." And I said, "Well, that's how the Founders wanted it." They wanted the body that would ultimately control presidential abuse of power to be a political body. They considered having courts do it, and they rejected the idea of the Supreme Court doing it, or any other body doing it. They wanted it to be a partially political, partially legal decision.


      On the other hand, I still think it's a legal decision. So sometimes you see other critics of the President's saying, "Well, high crimes and misdemeanors means whatever the House of Representatives means." And that I don't think is right either. I mean, I think it's a constitutional text and it has a certain meaning. So it's also not the case, I think, that the Founders expected that Congress would use the impeachment power to remove Trump just because they disagree with him. It can't be -- because that just turns us into a parliamentary system where the President is just sort of the agent of Congress. They did want there to be certain constitutional standards. They might be hard to get at or mysterious. Maybe we're going to plumb those depths in the next two years with President Trump if the House does decide to start impeachment proceedings.


      But the last point there then is if the House and Speaker Pelosi decide not to go forward with impeachment proceedings, then that's a judgement too. I think that if they choose not to use the impeachment power, then some of them may think the President has committed a high crime and misdemeanors, but the body of the House thinks that he has not. And I think that's a judgement too. And so I don't think we should buy into this, "Oh, it's just politics, so therefore, it's an inadequate mechanism," so that's the justification for unleashing the criminal justice system in a way that sort of criminalizes the separation of powers and politics.


Dean Reuter:  Very good. Let's check in with the audience. Begin with six questions, so we'll try and do a round of -- we might already be in the lighting round, gentlemen, but…




Dean Reuter:  Now we've got seven questions. So let's check in with our first caller.


John Malcom:  Our answers are getting shorter by the moment.


Prof. John Yoo:  I want to be like that guy on Jeopardy. Bring it on.




Dean Reuter:  Got to bet the big money first.


Prof. John Yoo:  I select Mueller, obstruction, no intent for $10,000.




Dean Reuter:  Go ahead, caller.


Michael Rosman:  This is Michael Rosman with the Center for Individual Rights. It was a terrific presentation by of you. Thanks. I was wondering if I could get two quick questions in there. There's been report in the press -- and John Yoo, you spoke about the intent requirement of obstruction. But there was a report in the press that Attorney General Barr and perhaps Deputy Attorney General Rosenstein had a different view of what intent was required than Special Prosecutor Mueller. And I was wondering if either of you would be able to comment on that.


      And the second -- John Yoo, I have a question for you. You said at one point that you thought the President was kind of overly resistant to the Mueller investigation, that you though Mueller would do a good job and the President should have cooperated more. And yet, on the other hand, both of you have said that Giuliani made the right move in not letting the President testify which seems, perhaps, slightly inconsistent. I was wondering if you'd comment on that.


Prof. John Yoo:  Let me respond to this, John. Let me respond to the second question, and then maybe John will respond to the first one, or I'll throw in two bits too. But I was making a descriptive comment. I think Giuliani did outlawyer Mueller on this point.


      But I still think President Trump should have cooperated and done an interview, not necessarily because he's constitutionally compelled to, but because I thought he -- and this also goes to the point of criminalizing politics and the separation of powers. He's the head of the Executive Branch, and he is the Chief Prosecutor. President Trump is the head of a system that depends on the voluntary cooperation of people throughout the system in order to effectively discover and prosecute crimes. And so for him to -- in particular, I thought, to refuse to sit down for interviews sends a very bad signal. But that's because he's both the head prosecutor and the person under investigation and shouldn't be in that position, if only because of this aberrational use of special counsels and independent prosecutors to pursue these disputes.


      So I'm, I wouldn't say agnostic, but under existing law, if you take the Watergate tapes case not just to the point of President Nixon ordered to, but I assume the Supreme Court would say, "And the President must obey." The existing precedent is that if the subpoena had been elicited from the grand jury that President Trump constitutionally would have had to sit down and testify.


      So I thought it would be better if it had not come to that and President Trump had voluntarily -- I had this weird fantasy, I will admit, this weird fantasy that President Trump would be directly questioned by Bob Mueller himself on live television. It would be the highest ratings of all time. It would have been the greatest TV show ever. And then Mueller could have -- and then at the end, Trump could have said, "And now, you're fired." That would have been awesome, under using his presidential power of removal. But it didn't happen, so…


      I'm sure John has exquisite thoughts far from my reality gameshow fantasies about the intent question.


John Malcom:  Well, so John, of course, makes a very good point about that Trump is the head of the Executive Branch and has constitutional obligation to take care that the laws be faithfully executed. And there is something unseemly about his not sitting down with Mueller.


      On the other hand, I think he threaded that needle quite nicely. I think that the political ramifications and his support in Congress certainly would have taken a huge hit if he had said, "You know what, I'm asserting the Fifth," but he didn't. He said, "Okay, I'm going to answer your questions, but it's going to be on my terms." And he got away with that, so in this best of all possible worlds, if we were looking at the [then he tipped them 35:04] and the President being open and candid, he would have sat down and done an interview just like Clinton did with Starr. But I think he actually managed to thread that needle quite nicely.


      And I think that one of the reasons why the President was skeptical of this entire process—and I must say, if I had been in his shoes, I would have shared that skepticism—is that Mueller surrounded himself with a bunch of people who, based on their donation history, had clearly supported Democrats in the past. There are a lot of very, very skilled men and women at the FBI and at the Department of Justice. He could have picked any number of them to work with him on this investigation, but he didn't. And I suppose it was a great concern by the President as to all these people are ganged up against him. And as a result of that, I think that the public should take special comfort in the fact that this crowd of people who were clearly not friendly, at least in a philosophical level with the President, exonerated him with respect to the issue of collusion and conspiracy.


      With respect, Michael, to your first question about the disagreement, it was only a vague reference that Bill Barr said, and I didn't take that to be so much a disagreement about what the definition of the requisite mens rea was for obstruction. I think everyone was sort of in agreement that that was corrupt intent. Barr had written this memo for which he caught a lot of flack to Rod Rosenstein back when he was just in private practice saying, "Look, there are certain constitutional prerogatives the President has to fire the FBI director and various things, and taking actions along those lines cannot form the basis of an obstruction charge." That was the point that John was making during his presentation.


      When you get to the legal conclusions and legal analysis portion of the report, Bob Mueller, with respect to that says, "Maybe yes, maybe no." And he kind of lays out about how Congress could try to cabin the President's ability to invoke these constitutional authorities that he has depending on what his intent is and depending on just what actions he takes. And so when Barr said, "Well, I don't agree with everything that Mueller said, but here is his report," I took it as a reference to that material, which also harkens back to the memo that he had written to Rod Rosenstein and less about whether they had an agreement or disagreement about what the requisite intent would be.


Dean Reuter:  Very good. We still, as if by magic, have seven questions pending, so let's, without further delay, go right to our next caller.


Caller 2:  Good afternoon, gentlemen. What about -- maybe you can respond to Alan Dershowitz's statement that there's no -- collusion's not illegal, thus no underlying crime, and without an underlying crime, you can't have obstruction.


John Malcom:  I'll take a stab at that. So Mueller deals with that at the very beginning of the report. He said yes, collusion is a phrase that you sometimes use with respect to things like treason and in military tribunals, but he says that that's not a crime, but conspiracy is. So he really pretty quickly moves over and says everybody's been calling this collusion, but we're going to analyze this under the law of conspiracy.


Prof. John Yoo:  I quite agree with John, and it actually shows, again, I think, the -- not to harp on this, but the mistake to try to criminalize the political process through these independent special prosecutors because collusion might be a fine political word, and it's essentially "cooperate." That's not a crime, as John rightly says. Conspiracy to violate federal law is the crime.


      And so I actually think that there was an arguable case that the original appointment of the special prosecutor was improper because the special prosecutor is supposed to be appointed to investigate a crime. And so Andy McCarthy at NRO was really on this from the very beginning. He's a friend of The Federalist Society and been on these calls too. What they did, unfortunately, and what Rod Rosenstein did, unfortunately, in the way he appointed Mueller was to give the powers of a special counsel to someone whose charge was really just to conduct a counterintelligence operation, which is really supposed to be different and distinct from prosecution of a crime.


      There's some things you would be interested in knowing and would be important for counterintelligence that have no -- are not criminal. For example, well, yeah, you want to know if Jeff Sessions, for example, had talked to a Russian ambassador, or if Michael Flynn had talked to a Russian ambassador. It's not illegal. It might fall within Mueller's charge, but it's not a violation of criminal law. And so I actually think the President's supporters have a really good argument there, but we sort of lost track of it because it happened so long ago.


Dean Reuter:  Still working our way through these calls. Let's check in with the next caller.


Joe Russoniello:  Yeah. This is Joe Russoniello. I'm in Phoenix now, but --


John Malcom:  -- Hey, Joe.


Prof. John Yoo:  Hey, Joe.


Joe Russoniello:  Hello there, gentlemen. Hello there. There are a couple of things I wanted to ask you about. One is that with regard to the decision by Mueller to defer to the Attorney General and his determination that whether or not there was obstruction, do you think there's any merit to the argument that because the obstruction charge is one that arises in so many different contexts and that the Department of Justice is required to sort of sort these out across the nation in these different contexts, that Mueller thought that it probably, because it did implicate policies, that it was probably best left to the Attorney General and the Department as a department to a make the call rather than for him as the equivalent of just one U.S. attorney or one chief of a section to be making that call? And that's my first question.


      The second is with regard to this reserve powers to the Congress on impeachment, again, going back to the origin and the adoption of the Constitution, a very different time politically, obviously. Don't you think that the determination by the Founders that the trial would be held by the Senate and require a two-thirds vote was almost an advice that except in the case of the most heinous kind of perpetrator sitting as President, don't use it, even though it's there. It isn't one that's going to be successful.


Prof. John Yoo:  Dean, you didn't tell me there were going to be U.S. attorneys on this call. I retract everything I said about the criminal justice system. There's no ringers in audience. There's no ringers in Jeopardy. Come on. [Laughter]


      So let me throw in my two cents. Joe, I think you're exactly right about impeachment, that the Founders when they said high crimes and misdemeanors, and then they made the vote requirement for removal two-thirds of the Senate. While they might have known the language of what's an impeachable offense might be somewhat loose and would -- they made it so difficult to remove somebody that it would only be something that would happen by a pretty large consensus. And so that it wasn't just there for policy disputes, it wasn't there so that one party could stick their own person in as President or create a more pliable Executive. It would have to be something that violated a real substantive term.


      I think they were really wary of the road you would start going down if it became something used for policy disputes or just simple dislike of the President. I think you could see situations where it would be a serious character flaw. This is a time, as you said, back in the 18th century, they had seen kings who took bribes from other countries. The French king had bribed the British king. Or you'd see them actually harm the national interest for their own personal interests. I think that's what they have in mind. I'm not really sure they have in mind the commission of a simple crime, either. I think, sometimes, we've changed the meaning of high crimes and misdemeanors to mean it's got to be actually some violation of federal criminal code. You just saw some arguments like that in the Clinton years. I think this has to be something serious. And again, I think that's reinforced by the two-thirds.


      In terms of the first question, Joe's first question about whether what Mueller really did in Volume II was kick it upstairs because -- you're quite right. And Justice -- if this were a normal prosecution of this kind of weight with it -- suppose Muller wasn't a special counsel. Suppose he was a U.S. attorney, say, where he should have never left San Francisco where he was U.S. attorney. Not a bad place to be a U.S. attorney, I hear. So if you were a U.S. attorney, you would have naturally put up those kind of questions up the chain up to the Attorney General because they are so weighty and important.


      And so a part of me wonders why he did go so far, though. Like, I would have thought if I were a U.S. attorney—thank God, I never have been—but if I had been, I would have checked with main justice about these questions before even starting the obstruction investigation, say, "If we really do believe presidents can't be indicted, then why should I waste any time and resources in conducting an investigation that eventually forms the factual evidence for part two of the report?"


Joe Russoniello:  I think the answer to that, John, is twofold. One, that this was written more as pros memo than it was anything else, and that the mandate was to find the facts. And so even though the conclusion reached was, "I can't make the conclusion," he wanted to be sure that the Department was outfitted with everything that they had spent all of this time and money to discover.


John Malcom:  All right, so let me jump in to answer Joe's questions. With respect to the two-thirds vote on impeachment in the Senate, I think that's absolutely correct. And you have historical examples of that. So Andrew Johnson and Justice Samuel Chase were impeached, but they were ultimately not convicted in the Senate. And even though there were very large majorities in the Senate who didn't like either the President or Justice Chase, but they ultimately decided that while they disagreed with them for political reasons, some of them who detested them politically still voted in their favor because they said this shouldn't be a political process, it should be about something more than that. And I think that that two-thirds vote in the Senate protects against that in a very real way.


      I don't think, Joe, that this was kicked upstairs, the obstruction issue, for that reason. And the reason why I say that is that Bob Mueller says, "That's not why I did it." He clearly could have done the same thing with respect to conspiracy to interfere with the election, but he said, "No, we have clear evidence here that there was no coordination, no collusion, no conspiracy. We're going to say so." And with respect to obstruction, he even says, "Had we reached a definitive conclusion, we would have had no qualms about stating it. But here, we could not reach a definitive conclusion, and so we will decline to make your standard prosecutorial recommendation."


      Not quite sure why they ultimately decided to kick that upstairs, but I don't think it's because, "Well, we'll just lay out the facts and leave it up to you," because that's not what they did in Volume I. And they said in Volume II that had they reached that conclusion, they would have reached a similarly definitive conclusion in Volume II.


Dean Reuter:  We still have five questions pending, so let's continue to roll through these. You guys are not doing a very good job in terms of lighting round, but next caller.




Prof. John Yoo:  All right, you wanted it.


John Malcom:  Yes.


Prof. John Yoo:  No.


John Malcom:  I'm feeling like the Richard Epstein of ricochet.




Prof. John Yoo:  And we're going to make sure you get paid in the equal amount that he does.




Dean Reuter:  I did ask both our guests whether they could hang on for a few minutes longer, so maybe we'll go a little bit late, but not much. Caller, go right ahead.


Karen Lugo:  This is Karen Lugo, and I have a quick one.


Prof. John Yoo:  Hey, Karen.


Karen Lugo:  What do you anticipate—hi there—will be the blowback potentially on the FISA court itself? With the recent Section 702 close call on renewal and challenges to the structure of the court even at that time, does this add fuel to that fire?


Prof. John Yoo:  I think it's a great question. And let me just take a second to go first because I was involved with the rewrite of FISA and the Patriot Act, and worked on some of these warrant applications, and appeared before the FISA court. And I have to say I am just absolutely aghast that my former colleagues at Justice would rely on something like the Steele dossier to make a representation under oath, under threat of perjury to the FISA court to elicit a warrant to conduct surveillance on these sort of weird collection of people in the Trump campaign.


      One reason I can't believe this is because now the Mueller report shows, basically, although he doesn't really talk about the Steele dossier itself, he basically shows everything in that dossier was completely wrong and was basically fabricated. So it leaves you this question as to what is going on in our intelligence agencies? They're either naïve, and terrible at their jobs, and duped by the most obviously manufactured foreign intelligence product, or they were biased, and they were using this because they had already decided that Trump was unfit to be President, and they are going to try to stop him. Or it's somewhere in between there, those two poles.


      But I can't believe that they would rely on such a thing to get FISA warrants. This is going to have a big blowback in the sense of did -- and we're going to have these, as John said, we're going to have IG investigation now. We're going to have further investigation by Attorney General Barr into why was FISA used? Did these people involved actually knowingly mislead the court? It's inevitably going to mean that the court is going to be tougher now on the government when it seeks to get FISA evidence. And this is terrible because this was the whole purpose of FISA was to make it easier and more direct to get warrants to actually track foreign spies and terrorists. The whole point of [inaudible 49:32] FISA was to make sure that it was never used again for the reasons Nixon used it, for political purposes.


      And so you had, I'm afraid, members of the national security bureaucracy who have—and I thought this was very much Comey's attitude, I'm afraid—this kind of holier-than-thou crusader kind of attitude that they knew best and that they were going to basically override the purpose of the FISA law and still go ahead and investigate an ongoing presidential campaign because they just thought it was right. And so I worry that the ultimate blowback is going to be that we're going to overreact so much to this as well that we're going to start cutting back on tools that our government really does need in order to track down terrorists and spies who are operating inside the country.


John Malcom:  I agree with everything John just said, so there you go. There's a quick answer.


Dean Reuter:  There you go. We're down to three callers pending, so maybe we'll get through all these. Go ahead, caller.


Steve Dewey:  Yes. I have a question. My name is Steve Dewey. I'm in Arlington, Virginia. My question is about the tactics of the Mueller team and the way the handled Paul Manafort and also Roger Stone. I think most people would agree that their tactics were really unconscionable and outrageous. I mean, putting Paul Manafort in solitary confinement for, what was it, nine or ten months, and then surrounding Roger Stone's house with 17 armed FBI agents in full military gear at 6 o'clock in the morning. So my question is can anything be done about such egregious behavior by law enforcement, and can the FBI or the DOJ actually be sued for abuse of authority?


John Malcom:  I'll take a quick stab at that. I'm not sure that, certainly, Mueller's team or even the FBI had anything to do with the circumstances of Paul Manafort being placed into solitary. That's probably more of a BOP, Bureau of Prisons, issue. But I have no details on that. And look, with respect to these night raids, I agree with you. Unless you believed, had reason to believe that they had been tipped off that the Bureau was coming the next day and destruction of evidence was imminent, it seems to be very uncalled for. Congress can certainly, which has oversight over the FBI, can do something about it, but the FBI likes these perp walks and big, flashy pictures of people being led off in cuffs, long history of doing that. And so I don't know whether that's going to change or not, but certainly, if Congress wants to reign in the circumstances under which the FBI can conduct night raids and do the perp walk, they can do so.


Prof. John Yoo:  The FBI performed the impossible. They made Paul Manafort and Roger Stone into sympathetic figures. I agree with everything John said.




Dean Reuter:  Let's move on to our next call. We've just got two questions pending, so try to be brief, caller, if you can.


Lance Lawson:  Hi. This is Lance Lawson in Charlotte. Guys, great show today. I appreciate your insight. You touched on it earlier, but I wanted to ask you about why the Mueller team and Bob Mueller himself haven't taken more criticism in their picking what many objective observers would say a very biased prosecutorial team that he had, particularly as you noted, there were other very good options that they could have done that folks wouldn't have been considered as biased.


      And the second question is a number of the things that they're criticizing the President for or thinking about are things that struck me as why CEOs and presidents, in this case, have general counsels is to tell them, "No, you can't do this. But if you want to do something, we could do it like this." I mean, that's why you have a general counsel. I didn't find many of the things that were in the Mueller Report that outrageous as some people are making them out to be.


John Malcom:  Let me answer both questions very quickly. With respect to the advice of counsel, look, he had his own counsel throughout this process, and he had White House counsel. And he certainly did get some advice from Don McGahn. I'm sure he got tons of advice, but there were certainly instances where Don McGahn gave him advice and the President declined to follow it with respect to contacting Comey directly. But the President certainly has lots of advisors around him.


      With respect to Mueller's assembling the team, I'm pretty sure the answer to this is Bob Mueller knew all these people, he had confidence in these people, and he is not somebody who particularly cares what anybody says about him. He lets his actions do the talking for him, which is why he has such a good reputation. And even though I think he would have been better advised had he picked people without such political background in terms of their campaign contributions, I'm sure his feeling was, "I'm just not going to pay any attention to that at all. I'm just going to surround myself  the people in whom I have confidence to get this job done, and that's what they're going to do."


Prof. John Yoo:  I've always thought, actually -- I agree, just as a descriptive matter, it was unfortunate that Mueller picked all these very well-known, aggressive, Democratic prosecutors, although I don't imagine Mueller probably knew that at the time that he was picking them that they had these allegiances. But in an odd way, I think it actually redounded to Trump's benefit. I think Kelly Ann Conway said something like, "Well, the President's just been to the proctologist for a year, and he's got a clean bill of health." Well, if you don't have to go through the proctologist, at least you want the machine to be really the best machine there is.


      And so in a weird way, the tougher the prosecutors were, the more allegedly biased or Democratic they were, the more meaningful now is the fact that he got cleared because Trump can now say, "Mueller cleared me. All these guys, men and women he assembled who were so out to get me, they had to clear me." And you can see, I think, in the response to Volume I, very few people are now questioning that the President ever had any kind of conspiracy going with Russia. I think that book is closed. Think about how hard that would have been to predict beforehand that no one's really of any serious moment is still accusing the President of having conspired. The whole debate is moot to obstruction. I think that's because Mueller, maybe hostile, maybe biased was his team, but when he clears a President, it's almost without question now.


Dean Reuter:  Let's see if we can get through this final question.


Dick Aronoff:  This is Dick Aronoff. I'm an elderly interested person. For John, you mentioned the possibility that an impeachment by Congress has limitations as to the standard. Are you suggesting that the Supreme Court has the right to review an impeachment and a conviction?


Prof. John Yoo:  That's a very good question, and thanks for raising it. Even though I think there's a standard, I don't think the Supreme Court can review it. The Supreme Court has pretty much said so in a case called Nixon v. United States. Not the tapes case, but the impeachment of a Judge Nixon. Although, there is this rule at the Supreme Court anyone named Nixon automatically loses. This is a different judge, and he lost. And the Supreme Court there said since impeachment is a judicial process, it's a trial and a judgement that's been taken away from the federal judiciary and handed over to the House and Senate, we can't review how Congress interprets the terms and what procedures and standards they used.


      But just because the Supreme Court can't do it doesn't mean there's no standard. It's just that members of the Senate and the House have to -- I mean, they don't like doing this, rarely do it, but they have to interpret the Constitution for themselves and make a judgement. So all this is possible, I guess. I mean, we've never tested this. I guess it's possible in the impeachment trial of a President, Chief Justice John Roberts is the presiding judge. I've always wondered what would happen if, say, people in the House wanted to impeach President Trump and primarily evidence came from his pre-presidential life. That's sort of what's going on right now with these investigations.


      I wonder if the President's lawyers could say, "Chief Justice Roberts, we want you to rule as the trial judge of impeachment that these claims cannot fall under high crimes and misdemeanors because they took place before the President was President." That could open the door to a little bit of sort of judicial monitoring. Not Chief Justice John Roberts as a member of the Supreme Court and no Supreme Court meetings, but just as the trial judge. That's never been tested. We don't know what would happen, but I could see that coming up if there actually were House impeachment proceedings.


John Malcom:  Yeah, I agree with that.


Dean Reuter:  Final thoughts from either of you? Let's go in the order that we started. John Malcom, a final thought, maybe?


John Malcom:  No. Look, I -- obviously, let the games begin in terms of the House doing its thing and the Senate doing its thing. The next thing I'm going to be looking for -- I mean, I don't think much is going to come out of the testimony this week. Both Bill Barr and Bob Mueller will acquit themselves quite well. I have no doubt of that whatsoever. I don't think anybody's going to lay a glove on them. And I think the IG reports, which will be coming out very soon -- Bill Barr said that they are going to come out in May or early June, are going to be quite revealing, and it'll be a long, hot summer.


Prof. John Yoo:  I agree with John. [Laughter]


Dean Reuter:  Okay. Terrific. Well, has been particularly good. I appreciate the time and energy from both of you. On behalf of The Federalist Society, thank you so much. To our audience, thank you as well for dialing in. There were a few hundred of you on the phone. We appreciate it. We got through all the questions, so thank you for your questions as well. A reminder to our audience to check your emails and monitor The Federalist Society's website for upcoming teleforums. But until that next call, we are adjourned. Thank you very much.


Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at www.fedsoc.org/multimedia.