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How 3 legal experts interpret the Mueller report

Special counsel Robert Mueller’s extensive report covers not only his investigation’s findings, but also how he believed U.S. criminal law applied to them. Three legal experts are here to offer analysis: Mary McCord, former acting head of the Justice Department’s national security division, George Terwilliger, former deputy attorney general and Bob Bauer, White House counsel under President Obama.

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  • Judy Woodruff:

    Twenty-two months, 2,800 subpoenas, and some 500 witnesses later, Robert Mueller's extensive report goes over not just his investigation's findings, but also how he believed U.S. criminal law applied to the facts.

    Three legal experts are here to wade into all of this.

    They are George Terwilliger. He was deputy attorney general during William Barr's previous stint atop the Justice Department in the George H.W. Bush administration. Bob Bauer was White House counsel under President Obama. He was an outside counsel to Senate Democrats during the Senate's trial of former President Clinton.

    And Mary McCord served as acting head of the Justice Department's National Security Division. She is mentioned in the report, having been part of the team that went to the White House to voice initial warnings about Michael Flynn. She is now a litigator at Georgetown University.

    And we say hello and welcome back to "NewsHour" for all of you. Thank you for being here on this important day.

    I'm going to start with you, George Terwilliger.

    What do you make of the finding by the special counsel that there was no conspiracy, no collusion, no cooperation between the Trump campaign and the Russian government, Russian officials, when there were so many attempts by the Russians to reach into that election?

  • George Terwilliger:

    Well, I really draw two conclusions as a citizen from that, Judy.

    The first is that I'm glad the fact that the Russians were trying to interfere in our elections through a wide variety of means is getting exposed, because I think that will help us build what I hope will be bipartisan political support to combat that in the future. Obviously, we don't want foreign governments messing with our elections.

    The second is that the politics of all of this and of the allegations of conclusion — I'm sorry — of collusion really have been a millstone around the neck of this presidency. Leave the president personally aside, out of it for a second. But, just objectively, it has hindered the presidency and the execution of some of the policies and initiatives of the presidency. And I'm glad to see that lifted.

    Let's — you know, we will have lots of robust political debate on substantive issues. I hope we can now put this aside.

  • Judy Woodruff:

    But you're accepting the findings of the special counsel, based on what you see here?

  • George Terwilliger:

    Yes, although I'm troubled, in a way, that this is the way we got the answer to this, because a criminal investigation is not necessarily the best vehicle to make determinations about a wide range of facts.

    Remember, this started out as a counterintelligence investigation, which is what it should have been.

  • Judy Woodruff:

    Right.

    Bob Bauer, what about you? How do you read what the special counsel came up with, looking at attempts by the Russians to influence the election, and finding there was no criminal conspiracy or cooperation between the Trump campaign and Russia?

  • Bob Bauer:

    Like any other prosecutor, he had to make some difficult decisions.

    For example, the campaign welcomed a delegation from the Kremlin offering dirt on Hillary Clinton, hosted them in their offices in New York, and were eager to accept the help of a foreign national, the Russian government and their agents.

    And the special counsel looked at that and concluded that there were simply constitutional and other statutory impediments to bringing, say, a criminal prosecution under the federal campaign finance laws.

    What that episode, however, reveals and what that rest of the section in the report shows is that there were not only multiple efforts on the part of Russia to influence the election, but they understood very quickly that the Trump campaign and the president were open to those offers of support.

    And I think that is extraordinarily troubling. Even taking into account what George has said, we don't want foreign nationals to interfere in our elections, we don't want American presidential campaigns, much less those who will become president, encouraging them to interfere in our elections.

  • Judy Woodruff:

    Pick up on that, Mary McCord, the legal underpinning that Robert Mueller ends up using to conclude there was no conspiracy, no illegal cooperation.

  • Mary McCord:

    Right.

    Well, it's a high bar. To charge a crime, you have to show — particularly the crime of conspiracy, you have to show an agreement, tacit or explicit, to commit a crime.

    And so one thing to think about when you think about both the interference with the election part of this report, as well as the obstruction part, is that, in reaching these conclusions about crimes, that's the standard that Mueller was applying.

    And, of course, he didn't reach a conclusion when it came to obstruction.

  • Judy Woodruff:

    Right.

  • Mary McCord:

    And so there's a lot of daylight between there's nothing to see here, there's nothing wrong, and there's enough evidence to support charging a crime.

  • Judy Woodruff:

    But, again, reading — for all three of you, reading through this report today, do you get the — I mean, do you come away thinking, all right, they did everything they could, and I'm satisfied there was no collusion, there was no conspiracy?

  • Mary McCord:

    I think it would be hard to read this report and come away without feeling that there was an incredible amount of interest and encouragement by people associated with the campaign in Russia continuing its election interference efforts.

  • George Terwilliger:

    You know, Judy, I think Mary makes a good point that the bar to get over in a criminal investigation is very high.

    That's one of the reasons we don't typically have prosecutors writing reports, because how evidence is viewed — and we're going to hear it in Washington for the next few weeks — how the evidence that's reported is viewed is going to be viewed in political terms, and it's going to be used for political purposes.

    I mean, one could argue that the greatest instance of collusion we saw was the Clinton campaign's involvement with the dossier, which was supposedly dirt on Trump.

    I think the bottom-line conclusion that we as citizens ought to be drawing here is that we need vigilance within campaigns. Bob's point is well taken about that. But we need even greater vigilance when we have foreign governments trying to interfere in our elections.

  • Judy Woodruff:

    So, the reason I'm just pushing this a little bit more is that some people say, what about the Trump Tower meeting? That sure didn't look like something that would normally happen in a campaign. But you're saying nothing illegal happened.

    Bob?

  • Bob Bauer:

    That's never been my view. I have always thought that there was a clear-cut campaign finance violation associated with the Trump Tower activities.

  • Judy Woodruff:

    Campaign finance violation.

  • Bob Bauer:

    Correct.

  • Judy Woodruff:

    Right.

  • Bob Bauer:

    In that a campaign is absolutely barred from accepting any support whatsoever or soliciting support, any whatsoever, from a foreign national, or substantially aiding a foreign national in influencing a federal election.

    As it turns out, I think the special counsel took a conservative view. We can debate whether or not he and his team should have done so. But I think it's open to question. And I certainly question that conclusion, but I don't question the good-faith analysis behind it.

  • Judy Woodruff:

    All right.

  • George Terwilliger:

    So, what that boils down to, Judy, in many respects, in many aspects of this report, lawyers disagree. Now, there's news, right?

  • Judy Woodruff:

    Let's turn now to the obstruction piece of this and whether or not the president committed obstruction of justice.

    Mary, you brought it up. It is a high bar. And, ultimately, Robert Mueller determined he could not make a conclusion one way or another. He didn't exonerate…

  • Mary McCord:

    I don't think that's what he determined at all.

    I think he said, based on OLC guidance, that he, as an employee…

  • Judy Woodruff:

    That's the Office of Legal Counsel inside Department of Justice.

  • Mary McCord:

    That's right.

  • Judy Woodruff:

    Yes.

  • Mary McCord:

    And the fact that, he, as special counsel, was an employee of the Department of Justice, he is bound by the guidance.

    And that guidance says you can't indict a sitting president. And based on that and his own recognition of the reasons behind that, the unfairness of indicting a sitting president, when there's not going to be any — or not indicting, but saying that a sitting president has committed a crime, when there's not going to be an opportunity for a trial or to air out the other sides of that or a neutral adjudicator, that he was just not going to reach that conclusion.

  • Judy Woodruff:

    So, you're not reading that as something that he couldn't. You're saying his hands were tied legally, or because of the department guidelines?

  • Mary McCord:

    I think that's right, yes.

  • George Terwilliger:

    I don't think hands were tied is a fair conclusion, based on what's in the report.

    I think there were a number of factors that went into it. And one of the things that he mentions that I think is very important, Judy, is that, since there was no crime of collusion — and that's the — what he was allegedly obstructing, was that investigation — then you look at the evidence of what the president did in a different light.

    And I'm not the president's lawyer. I don't want the president's lawyer, but I will tell you that, in my experience with public officials, with high-ranking public officials, the fact that the president would rant at aides and say, can't we do this, can't we do that, when he's incensed by the fact that he believes this is a phony investigation, you have to look at that in judging what his intent should be and in exercising your discretion as to whether or not that's a prosecutable case.

    It's not only, can we? It's, should we?

  • Judy Woodruff:

    Bob Bauer?

  • Bob Bauer:

    On the question on intent, I don't think there is any doubt about his motives. On June 14, 2017…

  • Judy Woodruff:

    On the president's motives?

  • Bob Bauer:

    On the president's motives.

    On June 14, 2017, the president learned that an obstruction phase of the investigation had commenced. Within days, he was pressing his White House counsel to arrange with DOJ to have Bob Mueller fired.

    So, it seems to be fairly clear that as soon as he came within the zone of potential liability, he acted to try to stop the investigation. He put pressure on the White House counsel. He put pressure on the attorney general. And I'm just, by the way, scratching the surface of some of the disclosures in the report.

  • George Terwilliger:

    But the further analysis of that, I think, requires — let me accept what Bob says as a fair inference from the facts.

    You still have to look at the question of what the real intent was there. Was the president driven by, I want this investigation stopped because he had a corrupt intent to stop an investigation, or was he politically saying, I'm not going to have this millstone around my neck and I want to find a way to cut it off?

  • Judy Woodruff:

    Mary, how do you read that part?

  • Mary McCord:

    Well, again, I think this is another example where Mueller made clear he was not exonerating the president.

    He lays out in great detail, which I haven't even had the opportunity to read yet, all the facts that he's amassed with respect to these 11 different scenarios that could be, any one of them, a basis for an obstruction charge.

    But I think what's important is that the law, when it comes to obstruction, is narrowly interpreted, according to the Supreme Court. And, again, there's a lot of daylight between nothing wrong here and enough to charge a crime or even make an allegation of a crime.

    And I think that it's important that people read at least the executive summary, the whole American people, and then they can make judgments. I think a layperson reading this would say there's obstruction of justice here.

  • Judy Woodruff:

    There's a lot to read.

  • Bob Bauer:

    I would also add, let's not confuse the kinds of beliefs the president may have had.

    He may have had a belief that the allegations of collusion were unfair, and therefore he was angry about that phase of the investigation. But he was motivated in the obstruction phase of the investigation by the personal threat to him. And he had a belief that it was a threat. He expressed that to his associates.

    And he tried to curb, if not end the investigation.

  • Judy Woodruff:

    A threat to his presidency?

  • Bob Bauer:

    To his presidency and, frankly, to his own personal welfare.

  • George Terwilliger:

    But if that were — if that were the only accepted view off of these facts — and, again, I grant Bob that that — maybe that's a fair inference from the facts, and that that's a view that somebody could have.

    Then there would have been a prosecution or a recommendation for prosecution. The bottom line is, Mueller did not recommend a prosecution.

  • Judy Woodruff:

    Mary, you're shaking your head no.

  • Mary McCord:

    Well, I think he makes it clear in his executive summary to part two the reasons why he's not making a recommendation, and it's based on the OLC memo.

  • Judy Woodruff:

    And, again, that the regulations of the department.

  • Mary McCord:

    Sorry, yes.

  • Judy Woodruff:

    Bob, are you saying — did I understand, Bob Bauer, do I understand you to say that you think, based on what happened, that the special counsel could have gone ahead and found the president guilty of obstruction?

  • Bob Bauer:

    On the facts revealed in this report, that would have been a completely defensible exercise of prosecutorial discretion.

    There are a host of facts here about the president's repeated attempts in a number of ways to stop what he understood to be a threat to him, not about collusion, but about his obstruction of the investigation into the collusion matter.

  • Judy Woodruff:

    But — so you're saying he could have defied department guidelines, the Office of Legal Counsel guidelines?

  • Bob Bauer:

    No, what I'm suggesting, not that he could have brought the prosecution, because that, I think, he concluded he couldn't do under the OLC opinion.

    But I think he would have been justified in a much clearer finding. And I think, frankly, he hints very much in this direction by saying he's not exonerating, by saying he cannot say he didn't commit obstruction. He could have been clearer in the affirmative that, in fact, there is clear evidence of obstructive behavior.

  • George Terwilliger:

    And that is precisely why we should not have prosecutors writing reports.

    This is exactly what happened to Hillary Clinton in connection with her handling of classified information. A decision was made not to prosecute her, but then there's a whole litany of sin that is laid out. It is the same thing here. It simply provokes this kind of debate, and it's not healthy.

  • Judy Woodruff:

    And now, Bob, you're shaking your head.

  • Bob Bauer:

    I'm shaking my head violently.

    (LAUGHTER)

  • Bob Bauer:

    I think George is seriously confusing the issue.

    In the Hillary Clinton case, he reached the judgment that no reasonable prosecutor would have found the violation on the facts of his investigation. And then he went ahead and characterized her conduct, if you will, in moral or normative terms. And I agree with George, he should not have done that.

    We're talking here about whether a prosecutor on these facts could have concluded that the law was violated. And no one's going to argue on these facts that no reasonable prosecutor could have reached that conclusion.

  • George Terwilliger:

    But it's the same bottom-line decision, different degrees, I will grant you that. But it's the same bottom-line dichotomy between making a decision.

    Look, what prosecutors are supposed to do, if there's a basis to charge somebody, you move ahead and charge them. If not, you say nothing. When we get this kind of information flowing into the public space, exactly these kinds of debates ensue, which is tremendously unfair to the people who are subject to these allegations.

  • Bob Bauer:

    Let's also be clear, George, unlike in the Comey case, he was under a legal obligation to produce this report for the attorney general.

  • George Terwilliger:

    I understand that.

  • Mary McCord:

    And, if I could add, I mean, I have read hundreds of prosecution reports. I was a criminal chief for many years. And then I was ahead of an S.D. for a while. And this proceeds very much like a normal prosecution memo.

    It starts with, what are the laws we're looking at? It puts out the facts. It applies to the law the facts. It then usually makes a recommendation and then talks about defenses.

    The only thing this lacks is that recommendation.

  • Judy Woodruff:

    Mary McCord, George Terwilliger, Bob Bauer, thank you. We will continue to talk about this. Thank you.

  • Mary McCord:

    Thank you.

  • George Terwilliger:

    Thank you.

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