The Daily - Does Mueller Have a Plan for Trump?

Episode Date: May 18, 2018

White House lawyers have claimed that Robert S. Mueller III, the special counsel overseeing the Russia investigation, will not indict the president, regardless of his findings. If that’s true, then what is the purpose of his inquiry? Guest: Michael S. Schmidt, a Washington correspondent who covers national security and federal investigations for The New York Times. For more information on today’s episode, visit nytimes.com/thedaily.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, White House lawyers say Special Counsel Robert Mueller will not indict the president, no matter what he finds. If that's true, one year into the investigation, what's it all for? It's Friday, May 18th. Mike, tell me about this meeting between lawyers for the special counsel and attorneys for the president.

So last month, Rudy Giuliani comes on as the president's lawyer. Somebody has to defend the president. And that's my job. He's going to bring an end to the investigation. In his mind, right? In his mind. As part of that, he goes in and meets with Mueller and his investigators to talk to them. The biggest question being an interview. Will Trump sit down with Mueller for an interview? And that could be the end, at least in Trump's mind. And the reality is that's my job. My job is not to, you know, lean over and let him beat the hell out of us. That's what was going on before I got here. It's my job to make the case for the president of the United States.

I'm very proud of that. And I think it's very different now than it was a couple of weeks ago, you know, since I got involved. So Giuliani goes in. I asked him specifically if they realized or acknowledged they didn't have the power to indict. And in the course of that meeting, the question comes up. Can the president be indicted? Mike Schmidt covers national security. Giuliani says no. They push Mueller's team for it. One of Mueller's prosecutors says probably not. But Mueller doesn't say anything. He just kind of sits there, doesn't respond.

He wouldn't answer. And one of his assistants said they acknowledged they had to be bound by Justice Department policies. And according to Giuliani's telling, there's no real answer that's given to them in that meeting. It's only a few days later. And then the next day or the day after, they clarified it for Jay Sekulow, who was with me at the meeting, that they didn't have the power to indict. Giuliani says that Mueller's office call and say, we do not believe the president can be indicted. So Giuliani has gone to the special counsel's office in order to retrieve an answer to this big existential question.

Can the president of the United States be indicted? And over a number of days, the answer comes back that the special counsel does not believe that he can indict, which would suggest that President Trump will not be charged with a crime by the special counsel. Correct. Mike, does that suggest that Mueller has reached a stage in his investigation where he has determined that the president hasn't committed anything illegal? No, it doesn't mean that at all. It just means that if Mueller were to find wrongdoing, he does not believe the criminal court system, the place that everyone in the country would go if they broke the law, would be the place for the president to be dealt with. But the question of whether the president can be charged with a crime is not a settled one.

is not a settled one. There is a Justice Department policy, guidance to prosecutors that the president should not be charged with a crime. This policy is in place because the Justice Department believes under the Constitution that indicting the president would create such a distraction for him.

It would be such a burden that facing charges is something so significant that it would hurt the president's ability to do his job. And because of that, he can't be charged. That's pretty fascinating. Doesn't that essentially mean, in practical terms, that the president is above the law? No, because there is a way under the Constitution that the country deals with the president that has done something wrong, and that's called impeachment.

Through Congress. Correct. And I want to say this to the television audience. I made my mistakes. But in all of my years of public life, I have never profited, never profited from public service. I've earned every cent.

Where does this Department of Justice understanding that the president shouldn't be indicted, where does that come from? The Justice Department looked at this question under Nixon when there was a special counsel investigation. And I think, too, that I can say that in my years of public life, that I welcome this kind of examination because people have got to know whether or not their president is a crook. Well, I'm not a crook. I've earned everything I've got. They looked at the question under Bill Clinton when there was an independent counsel. for what I did wrong in my personal life. And I have invited members of Congress to work with us to find a reasonable, bipartisan, and proportionate response. And they concluded that the president should not be indicted.

So this dates back to the previous two presidential investigations that, in one case, resulted in the president being ousted from office over his behavior, Nixon, and a second, Bill Clinton, where that almost happened. And in those cases, the Department of Justice determined that it, as an entity, couldn't charge the president with a crime. And left the question up to Congress. But I want to understand if the president of the United States did commit an obvious crime, let's outlandishly suggest, you know, killed someone. Law enforcement under this policy would not prosecute? to do something extreme in the moment, like the example you laid out, would the Justice Department feel the need to allow charges against the president to move forward? And that is why it's a policy. It's not law. It's not like the Constitution says the president can't be charged. That's not in the Constitution.

Right. This is an interpretation of the Constitution, the way the Justice Department has tried to figure out how it deals with the unusual standing of the president of the United States, the head of the executive branch. This incredibly unique position, the most unique position in the country. So it sounds like there's enough room for interpretation here that Trump's lawyers weren't certain that Mueller would conclude the president cannot be indicted. So why is he showing his cards now by telling White House lawyers that that is in fact what he believes? Well, I think there's two reasons why Mueller may have done it. The first is that the question of the interview is hanging over the investigation.

Whether Trump sits down with the special counsel. Will Trump answer questions to Mueller? It appears that Mueller has gone to lengths to try and get the president to sit for the interview. In March, his investigators sat down with the president's lawyers and went through the questions they would like to ask the president. In this case, they're saying, look, the president doesn't have any criminal exposure. Maybe that's a way of winning over the president to come and sit for an interview. Saying there will not be so great a cost if you come do this interview. The other thing is that the president has considered and wanted to fire Mueller. Last June, as we reported, the president went to Don McGahn, the White House counsel, and

said, call the Justice Department. It's time for Mueller to go. So if you're Mueller, Mueller probably doesn't want to get fired either. Mueller probably believes in what they're doing. And if the president knows, look, I'm not going to have criminal exposure on this, maybe that assuages him. Maybe that calms him down a bit. Because here's the other scenario. Here's flip it around. Rudy Giuliani walks into the Oval Office and says, hey, we went with Mueller today. And he says, indicting you still on the table.

How do you think that's going to go over? So this could be Robert Mueller making sure that Robert Mueller remains special counsel. Or it could be Robert Mueller saying, look, I'm going to be transparent with you and try and be as upfront as possible, and I don't intend to do this. And what about the president's lawyers? Why are they pushing Mueller to say that he won't indict?

I think the president's lawyers have two big problems. They have a client that needs to be kept at bay and told that everything is going to be okay. Why don't I just fire Mueller? Well, I think it's a disgrace what's going on. We'll see what happens. But I think it's really a sad situation when you look at what happened. And many people have said you should fire him. Again, they found nothing. Part of the issue with the president in the past year, since Mueller was appointed, is the president's lawyers trying to stop him from firing Mueller, a fundamental issue in the entire thing. So we have a phony deal going on and it's a cloud over my head. And I've been able to do to really escape that cloud because the message now everyone knows it's a fix. OK, it's it's a witch hunt.

And I think that John Dowd and Ty Cobb, the two lawyers that recently left the team, were very good at assuring the president throughout this process that firing Mueller would only create more problems. Because of the fact that they have this witch hunt going on with people in the Justice Department that shouldn't be there, they have a witch hunt against the President of the United States going on. I've taken the position, and I don't have to take this position, and maybe I'll change, that I will not be involved with the Justice Department.

I will wait till this is over. So Mueller's team and the White House lawyers are both saying that Mueller won't indict the president, maybe for the same reason, so that Trump won't fire Mueller. Correct. We'll be right back.

Okay, so now that we know that the avenue of charging the president through the Department of Justice, the special counsel's office, is more or less closed. Let's say that the end of his investigation, Robert Mueller finds that the president did, in fact, commit a crime. What does he do? There's a notion out there in the media and amongst Democrats that Mueller's going to just send a report directly to Congress. That he would finish up, write a report, send it over to Congress. It's not that simple. If Mueller wants to send a report to Congress. That he would finish up, write a report, send it over to Congress. It's not that simple. If Mueller wants to send a report to Congress, it has to go through the Deputy Attorney General, Rod Rosenstein. Mueller does not have the authority to simply give this to Congress to allow them to deal with this. Has to go through the person overseeing the investigation, in this case, Rod Rosenstein. Rosenstein makes a decision about what goes to Congress and what doesn't. And that is why the question of who is overseeing the investigation is so important,

because whatever Mueller finds has to go through the pipe, the person, the in-between of who's overseeing it at the Justice Department. In this case, it's Rod Rosenstein, the Deputy Attorney General, because the Attorney General, Jeff Sessions, is recused. Is recused. So one option is that Mueller writes up a report, sends it to the Deputy Attorney General, who then passes it along to Congress to act on it or not act on it. Leaving it up to Congress. Congress, you deal with this. We found these issues in regards to the president. Here's what it is. You deal with it. So then Congress will digest this report. But even then, Congress is in the hands of Republicans, both the House and the Senate, who have not shown a great appetite to take action against this president. So is there another option for Mueller to take if he believes the president has committed a crime? Is there another option for Mueller to take if he believes the president has committed a crime?

The other option Mueller has is to do what was done under Nixon, which was to make the president an unindicted co-conspirator. And what does that mean? Nixon was an unindicted co-conspirator in the Watergate break-in. In the course of its deliberations, the grand jury voted unanimously with 19 members concurring that the course of events in the formation and continuation of the conspiracy was such that President Nixon, among a number of others,

should be identified as an unindicted co-conspirator. His name was not in the court papers of the indictment that was filed. He was unindicted co-conspirator number one or some alias. But it came out several months later that he was that person, that he was someone that had conspired with the people who were indicted. And that was very damaging to Nixon at the time. Mueller and the Justice Department, for that matter, has the ability to name someone, not necessarily anonymously,

as an unindicted co-conspirator. It's highly unusual, but there is nothing that prohibits it. So if Mueller felt that there was incredibly important information that he had about the president's involvement in a crime that was committed by someone else, he could get that information out by making him an unindicted co-conspirator. And what is the point of making someone an unindicted co-conspirator? Because what it sounds like to me is a bunch of people went and robbed a bank. I'm charging three of them. And there's a fourth person who drove the getaway car and I'm not indicting that person, but I'm going to name him in a court filing.

Maybe it's because that person is cooperating. Maybe it's because that person has provided the government with something. Maybe the person has fled the country. Or maybe that person is the president of the United States and there's a policy on the books of not charging him with a crime. Correct. Okay. So this is essentially a clever way that would not necessarily involve Congress of publicly identifying wrongdoing by the president. Yeah. You have to understand that what we're doing here is we're trying to figure

out what Mueller may do in a situation that we have rarely, if ever, seen that is very uncharted territory legally. And we're sitting here without the ability to see the world through Mueller's eyes to know everything he knows to try and figure that out. So you have to interpret it in that sense. This is not like we know here are the roads and such. This is a very unusual thing. This is different. So what has been the president's reaction to this discovery by his legal team or this concession that they've drawn from the special counsel that they won't indict him?

He's always seemed very eager to have people know that he's not under investigation or that he's not going to be charged. So is this a relief to him? It doesn't appear so, at least by what he was tweeting about today. On Thursday morning, he took to Twitter and it being the one-year anniversary of Bob Mueller being appointed,

the president chiming in on that, saying, congratulations, America. we are now into the second year of the greatest witch hunt in American history, and there is still no collusion and no obstruction. The only collusion was that done by Democrats who were unable to win an election despite spending of far more money. And then following that up with, despite the disgusting, illegal, and unwarranted witch hunt, we have had the most successful first 17-month administration in U.S. history, by far. Sorry to the fake news media and haters, but that's the way it is. So if getting this acknowledgement from Mueller that he will not be indicting the president was in part about putting President Trump at ease, why is the president still so upset about this investigation if he knows he's not going to be charged?

Because the cloud still exists. There are still these enormous questions about his conduct in office, about his campaign. And Bob Mueller is still investigating and he's still looking into things and has indicted several members of his campaign. And it's not clear where he's headed. Mike, thank you very much. Thanks for having me. Here's what else you need to know today. The Trump administration will announce a new rule on Friday that would cut off federal funding to clinics that provide abortion or even discuss the procedure with patients. The rule, which takes direct aim at Planned Parenthood, is a top priority of religious conservatives and is the latest move by the president to impose curbs on abortion rights. latest move by the president to impose curbs on abortion rights. And Chinese negotiators are preparing to offer the United States the promise of buying up to $200 billion in American goods

to reduce the trade deficit between the two countries and diffuse President Trump's frustrations with China's trade policies. The Times reports that the promise by China would allow President Trump to claim a major victory in his campaign to rebalance America's trade relationship with its biggest economic rival. But economists say it's not practical, and critics say it could impair the president's more ambitious agenda to punish China for pressuring American companies to hand over valuable technology. Finally, the ayes are 54, the nays are 45, and the nomination is confirmed. And the president will be immediately notified of the Senate's action.

On Thursday, the president's choice to run the CIA, Gina Haspel, was confirmed by the Senate, despite bipartisan misgivings about her role in the CIA's detention and interrogation program after September 11. Haspel will become the first woman to run the agency. The Daily is produced by Theo Balcom, Lindsay Garrison, Rachel Quester, Annie Brown, Andy Mills, Ike Sreeskanarajah, Claire Tennesketter, Paige Cowan, Michael Simon-Johnson,

and Jessica Chung, with editing help from Larissa Anderson. Lisa Tobin is our executive producer. Thank you. thanks to Sam Dolnick, Michaela Bouchard, Chris Wood, Stella Tan, Neil Collier, and Yusur Alu. That's it for The Daily. I'm Michael Barbaro. A reminder that tomorrow, we'll bring you the fifth chapter of our new series, Caliphate, right here on The Daily. See you Monday.