Is the Mueller report an ‘impeachment referral?’

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https://www.pbs.org/newshour/show/is-mueller-report-a-final-determination-or-an-impeachment-referral

Is Mueller report a ‘final determination’ or an ‘impeachment referral?’

With a redacted version of the special counsel’s report now public, how should we understand the conclusions Robert Mueller arrived at from the evidence he gathered? Judy Woodruff talks to Robert Ray, who was independent counsel during the Whitewater Investigation into President Clinton, and Garrett Graff, a contributor to Wired magazine and the author of a book on Robert Mueller and the FBI.

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• Judy Woodruff:

  And we turn now to why Robert Mueller chose not to subpoena the president to testify and more.

  For that, I'm joined by Robert Ray. He was independent counsel during the Whitewater investigation into President Clinton. And Garrett Graff, He's a contributor to "Wired" magazine and the author of "The Threat Matrix: Inside Robert Mueller's FBI and the War on Global Terror."

  Hello to both of you. Thank you for being here.

  I want to get to the subpoena question, but, first, I want to ask you about the — what Mr. Mueller did in trying to determine whether there was obstruction of justice.

  Robert Ray, the president — investigator — rather, the investigators, including the special counsel, clearly spent a lot of time looking at what the president did. And we learned that he asked, on a number of occasions, people who work for him, the White House counsel, other advisers, to go and either ask the attorney general to resign, to step down, or to stop the work that he was doing, to — tried to get Mr. Mueller to stop what he was doing.

  How do we read that? And how do we read that as not obstruction?
• Robert Ray:

  I think, at one level, of course, most of what you refer to, we already knew about. I mean, none of that really is new. And much of it, also, was out in the open.

  I suppose one way to read it is that the system worked, and the president was well-served by, among others, his White House counsel and several other individuals who knew better than to involve themselves in what potentially could well have amounted to their efforts to obstruct justice.

  And, you know, I think we depend, in a democracy and an executive branch, where, while the president is the head of the executive branch, we, in that democracy, depend on the fact that the people who are in positions of authority and surround themselves with the president ultimately do the right thing.

  And, in many instances, I think what we saw is that that's exactly what happened. Now, how does that — your other question, how does that bear on obstruction of justice?

  I think that I — you know, despite much commentary and criticism of the attorney general, ultimately, it was left to him, as both a matter of law, facts and, more importantly, policy, how to apply the obstruction tactics to presidential conduct.

  And it was his determination, in conjunction with the deputy attorney general, and after consulting with the Office of Legal Counsel, that there was insufficient evidence to establish that the crime of obstruction of justice against the president had been committed.
• Judy Woodruff:

  But…
• Robert Ray:

  I believe that's a final determination. It's certainly a final determination as far as the Department of Justice is concerned.
• Judy Woodruff:

  Garrett Graff, you're shaking your head.

  And I want you to respond to that. But I also want you to respond to Robert Ray's comment that the system worked because the people around the president refused in these instances to carry out his orders.
• Garrett Graff:

  Yes, Mr. Ray and I have disagreed about this almost since — the Barr's original summary at the end of March, which is, I have long said we needed to see how Mueller actually framed this.

  And when we saw the report yesterday, it's very clear that Mueller saw his role as prohibiting him, under the Office of Legal Counsel existing opinion within the Justice Department, to — from ever bringing charges against the president.

  And so he was not approaching this, as he said, to come to a traditional prosecutorial decision, and instead was gathering facts, and that I think it's impossible to read his report, especially when you read the executive summary that he wrote at the top of volume two, as anything other than an impeachment referral, that he never intended for the attorney general to make a decision on this, and that he saw what he was doing as independent fact-finding that — in a situation where he couldn't bring charges.

  And, in fact, he sort of goes out of his way to explicitly say he does not exonerate the president…
• Judy Woodruff:

  So…
• Garrett Graff:

  … and that this is — go ahead.
• Judy Woodruff:

  I was just going to say, quickly come back to Robert Ray, it was — in other words, it was never in the cards that…
• Robert Ray:

  Well, that's not — with all due respect, that's not what prosecutors do.

  Prosecutors are not independent fact gatherers.
• Garrett Graff:

  That what prosecutors do in dealing with a president.

  (CROSSTALK)
• Robert Ray:

  No, they don't.

  What prosecutors do — I have been one, so I can tell you — and particularly what independent counsel and special counsel do is, they gather evidence, as all prosecutors do, in order to determine or not whether or not there — there's a case, and whether or not a crime has been committed and whether or not it's worthy of prosecution.

  That's what they do. Now, in the regime that we are now in, with the demise of the independent counsel statute post-1999, this is the first time where he we have proceeded down and traveled down the road of the special counsel regulations.

  And I respectfully disagree also with the notion that this was simply an impeachment referral. That — that's baloney. There's no mechanism for an impeachment referral by the special counsel, as distinguished from the independent counsel statute.

  And, ultimately, it was the Department of Justice's call, because, after all, under the special counsel regulations, the special counsel authority derives from the attorney general of the United States.
• Judy Woodruff:

  All right, Garrett Graff, I want you to respond, and then I — quickly come back to my earlier question.

  Go ahead.
• Garrett Graff:

  Yes, I think that that's just not what Robert Mueller says, that he doesn't say that he's leaving it up to the attorney general.

  And I think this is going to be obviously the first question that he's going to face when he goes up to Capitol Hill to testify presumably sometime in May.
• Judy Woodruff:

  And, Garrett Graff, the earlier point that Robert Ray made about the decision by the people around the president not to carry out his orders, whether it was to fire — to get Mr. Mueller fired or to fire secretary — or Attorney General Sessions, how do you read that?

  Was this a case of the system working?
• Robert Ray:

  Well, the system worked, to a certain extent, yes, in that the staff didn't carry out orders that could end up causing criminal jeopardy in the obstruction case.

  However, the criminal federal standard for obstruction of justice includes the word endeavoring. This is a situation where even simply attempting to obstruct justice makes you guilty of doing so, and that this is a situation where we certainly saw the president endeavor to obstruct justice in these 10 instances that the special counsel outlined in his report.
• Judy Woodruff:

  And, Mr. Ray, let me…
• Robert Ray:

  I don't think that is certain…
• Judy Woodruff:

  OK.
• Robert Ray:

  I don't think that is certain at all.

  And that's by the special counsels own acknowledgement. And, moreover, more precisely and significantly, the attorney general, it's obvious, profoundly disagrees.

  So, applying obstruction statutes to presidential conduct presents unique constitutional challenges, not the least of which is that the president is afforded sufficient latitude to exercise his constitutional authority, including hiring and firing, replacing people, inquiring of the Department of Justice with regard to the pendency of an investigation, and should be able to do so free from quick allegations that, at every turn, if he makes any action or takes — or indicates any endeavoring, as you say, that it shouldn't be tantamount to a conclusion that obstruction of justice exists.

  The attorney general was quite clear about that in the period of time before he became — before he was nominated as attorney general. He was the subject of confirmation on that basis, and he's now made that call.

  To suggest that somehow or another that was an easy determination, and that there's clear endeavoring here, I think, is belied not only by the report, but obviously by the attorney general's findings and now conclusion of that investigation.
• Judy Woodruff:

  Garrett Graff?
• Garrett Graff:

  Well, again, in the endeavoring — and this is, again, all in the criminal statute, and it's written out in Mueller's report — that mere idle speculation doesn't rise to the level of endeavoring, but that specific acts that could substantiate — that could cause substantial action do.

  And so certainly saying to your White House counsel, fire the special counsel, telling your attorney general to unrecuse himself, so that he could take control of the probe back from the acting attorney general, those certainly could arguably be the cause — or cause of obstruction.

  And that's precisely — again, going back to our earlier disagreement — why it seems like Mueller was trying to set this up for a finding of fact in — at the congressional level, that it's up to the House of Representatives…

  (CROSSTALK)
• Judy Woodruff:

  If I may, I would like…
• Robert Ray:

  Well, prosecutors don't deal — well, prosecutors don't deal in what is arguable. That's not what they're paid to do.
• Judy Woodruff:

  If I may, in just the little bit of time we have left, I want to ask you both to comment on the portrait of the White House that emerges from this, the — what people who work for the president were telling the public at intervals throughout all this that turned out later not to be true, the — frankly, the relationships inside the White House.

  What emerges for you?

  Mr. Ray?
• Robert Ray:

  I think the attorney general captured it.

  What emerged from it is that the president was firm in his belief from the outset that there was no collusion with Russian government officials. He struggled mightily in the political environment in which he was in to try to protect the integrity of his presidency and efforts in the political process by his opponents to undermine the legitimacy of his election, and to try to do that in an environment in which personnel decisions had to be made, leaks were happening, and those not loyal to the president were attempting, obviously, to impair his ability to exercise his constitutional authority.
• Judy Woodruff:

  Garrett Graff?
• Robert Ray:

  He made decisions, one of which was to fire the FBI director because he found him to be disloyal.

  And he also suspected, probably rightly, with the benefit now of hindsight, of leaking to the media damaging information that, frankly, furthered a narrative that, at the end of the day, Robert Mueller concluded, based upon evidence, was not sufficient to sustain or establish, for that matter, Russia collusion.

  (CROSSTALK)
• Judy Woodruff:

  Garrett Graff, if we could just…

  (CROSSTALK)
• Robert Ray:

  When you have that as a takeaway, that's a substantial determination.
• Judy Woodruff:

  I'm sorry to interrupt, but we're almost running out of time.

  Garrett Graff, could you respond? Thank you.
• Garrett Graff:

  Yes.

  I think that this is very damaging portrait of a White House that is beset by leaks, and fundamentally disloyal to the president, that this is sort of a mismanaged White House. And you see that both on the campaign, and you see that in the White House.

  I mean, you see that in the first half, volume one, of this report, in a campaign where the president's own top advisers were all running their own entirely unrelated schemes and crimes in the midst of trying to serve the president.

  I mean, this is a very damaging portrait of the president's management.
• Judy Woodruff:

  We're going to leave it there. And, of course, we will continue to look at this report in the days to come.

  Garrett Graff, Robert Ray, we thank you both.
• Robert Ray:

  Thanks, Judy.