The Daily - Part 1: What to Expect When You’re Expecting (the Mueller Report)

Episode Date: March 4, 2019

There have only been a handful of investigations into possible criminal conduct by a sitting president of the United States. Each time, an outside investigator has been appointed under a set of rules to ensure independence and accountability — and those rules have changed with each inquiry. Now, the latest set of rules is being tested as the special counsel, Robert Mueller, prepares to release his report. Guest: Neal Katyal, a lawyer who drafted the regulations that govern the special counsel investigation. 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. The Democratic National Committee is trying to solve a spy mystery. It began before dawn Saturday when five intruders were captured by police inside the offices of the committee in Washington. Throughout U.S. history. The tangled relationship between an Arkansas land deal, a savings and loan, and Hillary Rodham Clinton's former law firm

is again under scrutiny today. There have only been a handful of investigations into possible criminal conduct by a sitting president. I did not have sexual relations with that woman. Mr. Nixon says emphatically that the White House is in no way involved in the burglary and bugging of the Democratic headquarters, and he'll have no further comment on that matter. And each time... Attorney General Klein, it's a comprehensive, unbiased investigation of the break-in of

Democratic National Committee headquarters on June... An outside investigator has been appointed. Whitewater counsel Kenneth Starr has been granted permission to expand his investigation. And that investigator has to follow a set of guidelines, a set of rules to ensure they are both independent and accountable. This is a sacred process. This is not a witch hunt. And then, after each of these investigations, those guidelines have changed in response to the perceived flaws or excesses of the most recent investigation in an attempt to improve them. Deputy Attorney General Rod Rosenstein is announcing the appointment of a special counsel. Now, the latest set of rules. Former FBI Director Robert Mueller prepares to release his report later this month.

Thank you. Hey, I'm Michael Barbaro. It's really great to meet you. Hey, Michael. Ditto. So we wanted to sit down with Neil Kadhial because he's the person who wrote those rules. It's Monday, March 4th. Shall we start? Absolutely. Neil, from your very informed point of view,

what do you expect this report to actually look like? So the first report that Mueller will send to the Attorney General is supposed to be a summary of the investigation. And it's supposed to detail, you know, the roads taken, the roads not taken, reasons why. And then there's a second report, and that is the report that the attorney general, William Barr, is going to give to the Congress. I don't think that the special counsel regulations envision the two reports to look the same. And why do you say think? Having written

these rules, don't you know exactly what they envision? I think the best way of thinking about the special counsel regulations is to think about it a little bit, and not to sound grandiose, but like a constitution. You can't anticipate all of the crises that are going to happen in the years to come in a dynamic republic. And so you don't have hard and fast rules. You have some rules, and then you have the spirit and the animating principles behind them. The animating focus of the special counsel regulations is to restore what it calls public confidence in the integrity of the process. And then reasoning backward from that, what's the best thing I could do as Attorney General when I'm writing this report to help facilitate that public confidence in the administration of justice? If the crime is,

you know, something very serious of national security concern, like potential collusion with Russia, more is going to be important. If the crime is something that's much more minor, less information is required. And to me, that means that more information is required rather than less when you're dealing with the highest level of our government, the President of the United States, and potential wrongdoing. So you're saying the guidelines will encourage the Attorney General to give something quite comprehensive to Congress? I don't want to say it's quite comprehensive. The regulations say that the Attorney General is supposed to tell Congress the fact that the investigation's concluded, some reasons why, and to detail any instances in which the Attorney General or the attorney

general's predecessors, like Whitaker or Rod Rosenstein, who was the acting attorney general, any instances in which they said no to Mueller. Now, Barr could certainly go further and provide a lot of detail. I think if Mueller decides not to prosecute X, despite there being some evidence, or to prosecute Y. I think those are the types of things that have to be explained in this report from Barr to Congress. But are we going to get something like the Starr report or the 9-11 report, you know, that's going to be a big coffee table document? You know, I don't think we'll see that. And why is that? Why aren't we going to get a coffee table size version of this?

I think that's what many of us have been expecting. Why isn't a full report from Mueller what goes to Congress rather than the AG's report on the report? When we wrote the special counsel regulations, we weren't writing them in a vacuum. special counsel regulations, we weren't writing them in a vacuum. We were writing them after many, many pages dumped on Congress in the Ken Starr report about Monica Lewinsky and Whitewater. And that, I think, should concern all Americans, that you have a prosecutor really, I think, impinging on some of the most sensitive privacy concerns that human beings have. And so the requirements in the special counsel regulations are not written the way they were in the Independent Counsel Act

to provide every piece of information. That was a concern. On the other side was also the need for public confidence. And so it's going to depend on the case. In a case in which you're dealing with, you know, private consenting activity among adults, you know, you're not going to really want to have the same level of detail as when you're talking about, say, collusion with Russia.

Got it. And I think maybe to just take a step back and understand what's going on, why is all this written this way? It's written this way because of the kind of oldest fear that democracies have, which is who's going to guard the guardians? Or if you are a Dr. Seuss fan, who's going to be the bee watcher to the bee watcher watcher and so on? And here, the idea is that the attorney general is supervising this investigation into the president, which is remarkable because who appoints the attorney general? The president. And the way to try and deal with that hornet's nest

is to say, look, we can't take the attorney general out of the prosecutorial system. That's what our constitution requires. But we can make sure that sunlight is shed upon the attorney general's actions when supervising that special counsel. And so that's why the reporting requirement exists. And that's why it can't be that it's simply be a one line, like we're closing the investigation and nothing else. There's really got to be an outline of the actions and the reasons for them. got to be an outline of the actions and the reasons for them. So given that the attorney general is a presidential nominee, works for the man who is under investigation, why should we trust that this person will follow the sort of broad outlines that you're describing rather than firm rules that explicitly say what must happen. In our constitutional system, there really is no way to force an attorney general to do something

that he doesn't want to do when it comes to a special counsel. Because after all, the special counsel regulations are themselves just the creation of the attorney general. They can be repealed by an attorney general at any time. Fascinating. And so the idea behind these special counsel regulations is to just make it really difficult for an attorney general, a willful one, to interfere with an investigation.

And so you outline the kind of concerns that an attorney general has to consider, like public confidence in the administration of justice. And then you hope for an attorney general has to consider, like public confidence in the administration of justice. And then you hope for an attorney general and a confirmation process that ensures an attorney general whose character is such that the right thing will be done. We certainly anticipated that there'd be attorneys general who would act and, you know, be appointed in a political process. After all, we were all very well aware that, well aware that Bobby Kennedy was John F. Kennedy's attorney general. So it's not as if we were unaware of the possibility of political attorneys general

or ones who had family relationships and the like. But at the same time, in our constitutional system, there's no way to remove the attorney general from the process. And so all we could do was try and shed sunlight into the decisions made by the attorney general. So let's talk about how the sunlight process works. Once the AG report goes to Congress, what is in place to be sure that there is sunlight? The special counsel regulations actually require the attorney general report to go not just to the majority in Congress, but also to the minority party. Here, it doesn't matter because

there is now a Democratic or cross-party House of Representatives. But had this happened a year ago or six months ago, we wouldn't have been able to say that. So that's step one. Step two is in the special counsel regulations is a provision for public disclosure of the report, not just to Congress, but to the American people. So in part nine of the regulations, it says the attorney general is to make a determination that the public interest would be served by public release of the documents. Now, it's clear to say there are applicable legal restrictions, you know, so grand jury information can't ordinarily be released to the public. But that's the way it would work, is the attorney general would review the report that he's written and say, yeah, I think this should be made public, or maybe there'll be some redactions

and then be made public. And what do you expect Congress to do with this report? And is that part of what you envisioned in your guidelines? Absolutely. I think the answer to that really does turn on how much information is given to Congress and does it look like a cover-up. If it does, if there's stuff that Barr is not providing that looks really suspicious, then I expect Congress to start subpoenaing Mueller, Mueller's team, the documents they've uncovered, and who knows what else, to try and get at what actually happened and find the truth out. Can you give me an example of what that might look like? What Congress might see in the report that the attorney general sends that would cause lawmakers to say, wait a minute, something's amiss. What's going on? Sure. So think about the firing of Jim Comey, the FBI director.

At first, the president's statement was, you know, I did it because Jim Comey was unfair to Hillary Clinton in criticizing her. You know, when that story fell apart, the president ultimately admitted to Lester Holt, I did it because of Russia. And that's what led to this whole obstruction of justice investigation. Can you fire the FBI director because you're upset that he's investigating you? That's something Mueller's investigating. Suppose Barr writes a report to Congress that says, obstruction of justice, we decided not to indict the president, period. Doesn't explain why. There would then be two possible big buckets of reasons why that decision could be made. One is the facts just weren't there.

Maybe they found that Trump didn't have a corrupt intent. Maybe he wanted to do it for other reasons. Who knows? But the second bucket is what Bill Barr wrote in his 19-page memo to Trump when he was, you know, some people say campaigning for the job or whatever, which is to adopt a really pretty ridiculous legal theory, which was the president can't obstruct justice when he fires a cabinet official because, after all, presidents can fire cabinet officials for any reason. That's generally right, but you can't have a kind of corrupt motive. It's just like, you know, I have a laptop and I can throw it into the river or set it on fire if I want.

No problem. I have the right to do that. But if I know the FBI is coming and looking for the laptop and they have a warrant, I can't go do those things. So same thing, the president can fire a cabinet rank official generally, but he can't do it in order to obstruct justice. And so if the Barr memo didn't explain why to Congress he wasn't pursuing a prosecution, then absolutely that would be something in which it would raise every investigator's hackles and we'd have to get to the bottom of it. Let me give you another example. Suppose that Barr says, you know, I'm not indicting the president for collusion with Russia. Doesn't explain why. Again, there's two possible reasons. One is the facts aren't

there. The other is under some of these old Justice Department opinions, a sitting president can't be indicted. If Barr doesn't tell us which, absolutely Congress and perhaps other investigators need to subpoena the documents to find out what actually happened here. Right. They should not just have to guess at the reasoning behind the attorney general's decision. Correct. And we've all been focused so much on the Mueller report and the Barr report, and those are undoubtedly important. But I think one thing to think about is how the Mueller and Barr reports set up a springboard to further investigations. Now there are multiple investigators. There's the democratically

controlled House of Representatives and multiple committees therein. There's the Southern District of New York and the campaign finance investigation they're undertaking, as well as the investigation into the Trump Organization, and they're a state attorney's general. So when Barr and Mueller write their reports, their audience is not simply Congress, and it's not perhaps even just the American people. It's also these other investigators. If they don't do a good enough job at explaining what they've done and it looks like a cover-up, that's going to fuel the fire of these other investigations. Then you're going to have a kind of hydra of investigations with multiple different nodes. And that's going to, I think, actually become even more worrisome for Trump than the current kind of single focus that we've had for many of the last months. So the less information that's in it, the more likely these other investigations just multiply and intensify. Right. Donald Trump has to be worried about winning the battle and

losing the war. That is getting a short report that maybe sides with him and maybe sides with him in a brief way, because that, more than anything, is going to raise the suspicions of Congress, of federal prosecutors and other offices, and state attorneys general, and ultimately the suspicions of the American public. So counterintuitively, I mean, very counterintuitively, the best thing for President Trump might be for Congress to receive not a short, nothing much there to report Mueller report, but a fairly comprehensive, somewhat damning, but in some ways, when you have that kind of very serious watchdog, it keeps you on your toes, to be absolutely honest, but also really reassures the American public that there isn't some shenanigan going on. And so sometimes the best protection you can have is actually to have a vigorous investigator. Obviously, Donald Trump has been afraid of that from the start, and the lingering question I think all Americans have is why. Are you concerned at all that if and when this

report moves into this kind of, as you called it, Hydra many-headed model, that it also inherently kind of inevitably becomes more partisan, and therefore it's more open to criticism, more partisan. And therefore, it's more open to criticism, more open to division, and that we might be better served if it were all completed through the process of a special counsel. I think when we wrote the special counsel regulations, we really hoped that the special counsel would be the primary driver of the investigation because that would be someone who was chosen for their unimpeachable integrity. You're absolutely right to say, as the investigation morphs into a variety of different nodes, you can't guarantee that same level of stature of independence, of non-partisanship,

and things do become more political. But at the end of the day, I do think our founders really had it right that sometimes when you have overlapping jurisdiction, federal and state, and overlapping branches of government between congressional investigations and executive branch investigations, you actually do get at the right answer in the end for reasons that James Madison said in Federalist 51, that people aren't angels. And so if you can create overlapping investigative checks and balances, that it's going to be cumbersome, it's going to be frustrating, it's going to be slow, but it is the way that we get truth in our system. Neil, I think listeners might hear that and think, oh, great, this has been a long, exhausting process,

waiting for Mueller to finish this report. And it sounds like you're saying, actually, this could really just be the very beginning. I know everyone in America wants a quick resolution to this. I'm tired. Everyone's tired. But these are really hard investigations. I mean, independent counsel investigations go on year after year under the old regime. I remember when I came in in 1998, we had an independent counsel from the Reagan administration

that was still acting. So this investigation in particular, because it involves counterintelligence and sources and methods and involves Russian documents and all sorts of people, it's amazing to think actually that in 19 months, there have been 37 indictments and 199 counts. So I know that time delays are frustrating for everyone, but viewed in context, this has been one of the fastest investigations, not one of the slowest. So Neil, having written the rules that will govern how this all plays out in response to the last two big presidential investigations, do you suspect that when this is all over, we're going to have to rewrite these rules yet again? We just don't know yet, because we're living in it right now.

We don't know how the regulations have fared or not. We'll have to see. And then we're going to have you on, and we're going to ask you that question again. I look forward to it. Thank you so much. Thanks, Neil. Okay, bye-bye. to that question again.

I look forward to it. Thank you so much. Thanks, Neil. Okay, bye-bye. On Sunday, the chairman of the House Judiciary Committee, Jerry Nadler, said he would undertake an investigation involving dozens of individuals

and organizations connected to President Trump that could eventually lead to his impeachment. Do you think the president obstructed justice? Yes, I do. It's very clear that the president obstructed justice. It's very clear. 1,100 times he referred to the Mueller investigation as a witch hunt.

He tried to protect Flynn from being investigated by the FBI. He fired Comey in order to stop the Russian thing, as he told NBC News. He's intimidated witnesses in public. If that's the case, then is the decision not to pursue impeachment right now simply political? In an interview with ABC's This Week, Nadler said he has made no determination about whether to proceed with impeachment, but said he is convinced that the president obstructed justice, the same charge brought by Congress against President Nixon and President Clinton, following independent counsel investigations into both. We'll be right back. Here's what else you need to know today.

In a major setback for President Trump, a Republican ally in the Senate, Rand Paul of Kentucky, says he will support a resolution blocking Trump's declaration of a national emergency, calling it an illegal way to build a border wall without the approval of Congress. Paul's support for the resolution, which has already passed in the democratically controlled House, makes him the fourth Republican senator to back the measure and now puts the resolution on track to pass in the Senate. In a speech over the

weekend, Paul said, quote, I can't vote to give the president the power to spend money that hasn't been approved by Congress. If, as expected, the resolution passes in the Senate, it will likely force Trump to issue the first veto of his presidency. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.