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Will Trump’s criticism have a chilling effect at the Justice Department?

July 20, 2017 at 6:40 PM EDT
President Trump's broadsides aimed at top officials at the Justice Department raise questions about his relationship with Attorney General Jeff Sessions and the ongoing investigations into Russian meddling in the 2016 elections and possible connections with the Trump campaign. Judy Woodruff speaks with Walter Dellinger of O'Melveny & Myers and Doug Kmiec of Pepperdine School of Law.

JUDY WOODRUFF: Back to President Trump’s comments to The New York Times yesterday.

The broadsides aimed at top officials from the Justice Department raise questions about the president’s relationship with Attorney General Jeff Sessions.

We are joined by Walter Dellinger. He served in the Clinton administration as assistant attorney general and acting solicitor general. He’s now in private practice. And former U.S. Ambassador Douglas Kmiec, he served as legal counsel to Presidents Ronald Reagan and George H.W. Bush. He is now a professor of constitutional law at Pepperdine University Law School.

And we welcome you both back to the program.

Walter Dellinger, to you first.

How significant are the president’s criticisms of top officials at Justice?

WALTER DELLINGER, O’Melveny & Myers: Well, I think they’re unprecedented in their inappropriateness.

A president shouldn’t be commenting on any particular criminal investigation, especially he should not be commenting one that involves people that are close to him, potential family members.

And yet here the president said that the attorney general shouldn’t have recused himself and shouldn’t have been appointed unless he had sort of committed himself not to recuse, even though departmental rules would call for it.

He then criticized the deputy attorney general for naming a special counsel, which was clearly appropriate. And, finally, he made it clear that he thought that the special counsel shouldn’t inquire into any financial dealings that are outside of the scope of the Russian campaign.

All of those seem to be inappropriate for a president, unprecedented, and something that certainly would send a chill through the entire Department of Justice.

JUDY WOODRUFF: Douglas Kmiec, inappropriate and likely to send a chill through the department?

DOUGLAS KMIEC, Pepperdine University Law School: I think everything Walter said is true.

We know of two things as a result of that interview, one, that he has a very intelligent and beautiful granddaughter who he’s very proud of. And that, I think, will humanize the president for people who read his interview.

But we are very troubled by the nature of how he understands his role as president and his ability to intercede into particular investigations. You know, Judy, I think he comes from the business world, where his perception is where lawyers are hired because they’re smart and clever and they can get the best price on property and the best title arrangements and the best closing date, and all these things are subject to negotiation.

And what he doesn’t realize — and it becomes plain at every turn — is that the Constitution is designed to separate power, to specify limits, to make sure that nobody has the ability to give favoritism to their friends.

And this is just something he just doesn’t grasp. Instead, he has a very transactional view of the law, and it’s not the view that the Department of Justice has to defend, as a matter of the Constitution.

JUDY WOODRUFF: So, Walter Dellinger, given if that’s his understanding of the role of the Justice Department, what are the consequences for the department in terms of its ability to do its job?

WALTER DELLINGER: Well, I think, outside the area of the Russia investigation, the department will go forward.

I think the president’s reputation has suffered enough that his criticism of Attorney General Sessions is likely only to enhance the attorney general’s standing within the department.

You know, I think that, in terms of this particular investigation, it will proceed. You know, Robert Mueller, we have to remember, is like James Comey, a lifelong Republican, 12 years as head of the FBI under two presidents of two different political parties.

Robert Mueller is known to law enforcement throughout the United States and held in the highest possible regard, so that — and I certainly agree with everything Doug Kmiec said.

If the president were to make a move to try to break through the department and dismiss Robert Mueller, I think the organized bar would find it incumbent upon itself to take whatever actions they could in response to that.

JUDY WOODRUFF: Well, Doug Kmiec, at this point, the president is saying he’s not going to do that.

But he also seemed to send a shot across the bow in saying that, if it turns out that Mr. Mueller is looking into his own financial dealings, any financial dealings with Russia, which may be the case, that he would give it another thought.

So, what does that mean for Mr. Mueller and his ability to go forward?

DOUGLAS KMIEC: Well, I don’t think Mr. Mueller will be intimidated whatsoever.

As Walter said, he’s a straight shooter, and he is being very careful and very quiet as he gathers his information, as he should. The concern I have is that the president, if he thinks that it’s only a very narrow question of whether there was a contact with Russia, that is just simply not plausible, because the real concern is that the president somehow has gotten himself into a difficult position with a foreign country, where a foreign country has some information, perhaps with this disreputable memo that talks about terrible practices that the president allegedly was involved in, perhaps something else.

To the extent that there is some undue influence of a foreign nation of his decision-making, it strikes every aspect of his job, foreign policy and domestic policy. And that’s just simply not going to be accepted. And so what is going to be the answer if he objects?

I think the answer will be a referral to the House of Representatives for removal.

JUDY WOODRUFF: For removal of the president?

WALTER DELLINGER: The president, if I could just …

JUDY WOODRUFF: Of the president?

WALTER DELLINGER: I think Doug was saying a referral for impeachment proceedings, yes.

But you know that every step he’s taking are further elements of what might well be an obstruction of justice against the president. The very idea that he would be trying to direct the special counsel not to inquire into certain areas involving the president’s own finances, even though the president has a free speech right to do that and can exercise the power of his presidency, if he does so for a corrupt motive, those can certainly be elements of an obstruction of justice.

DOUGLAS KMIEC: I think that that is right.


DOUGLAS KMIEC: The one thing we might worry about that the president might have helped himself, in an ironic sort of way, in the interview, is how profoundly he misunderstands the law.

In an obstruction of justice prosecution, an espionage prosecution, all these things in Title 18 require bad intent and specific bad intent. And President Trump’s knowledge of how the law works is so rudimentary and so different than our history, where Harry Truman was told he couldn’t seize the steel mills, where Ronald Reagan was told he couldn’t have a line-item veto unless there was a constitutional amendment, where one administration after another said to the president of the United States, yes, you are our chief executive, but that means you must take care that the laws are faithfully executed, not that you take care that your objectives are accomplished irregardless of the law.

JUDY WOODRUFF: I just want to come back to both of you again, with less than a minute, and that is to clarify that you believe that the job of the attorney general, the deputy attorney general, these other individuals the president is criticizing, that they can do their jobs as usual, that their authority is not undermined after these criticisms from the president, Walter Dellinger?

WALTER DELLINGER: You know, Judy, I don’t, because I don’t think people take criticisms by Donald Trump the way they would criticism with any other president.

I don’t think that affects the attorney general’s standing within the department.


I also think that, as Walter said, Jeff Sessions, to the extent that he’s putting his nose down to the grindstone and getting down to work and accomplishing the other — the vast number of other tasks that the department handles, will be admired by those people in the Justice Department, as it should.

I think Jeff Sessions made a very important …


WALTER DELLINGER: You know, I think he shouldn’t …


DOUGLAS KMIEC: Go ahead, Walter.

WALTER DELLINGER: I was saying, Doug, I think he shouldn’t resign. I think he shouldn’t resign, because that’s exactly what the president wants him to do, so he can install some non-recused loyalist in the department.

DOUGLAS KMIEC: Exactly right.

And Jeff Sessions, however awkward it would be to continue his service, is doing a service to maintain the institution of the Department of Justice. And that is what’s important.

JUDY WOODRUFF: Douglas Kmiec, Walter Dellinger, we thank you both.