The Daily - Part 2: What to Expect When You’re Expecting (the Mueller Report)

Episode Date: March 11, 2019

As the special counsel finishes his investigation, he can pursue three different paths — each with a profoundly different effect on how Congress will proceed. Recent history makes one of those paths especially treacherous. Guest: Michael S. Schmidt, who has been covering the special counsel investigation 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, as the special counsel finishes his investigation, he can pursue three different paths, each one with a profoundly different impact on how Congress will proceed. Why recent history makes one of those paths especially treacherous,

Part 2 of what to expect from the Mueller Report. It's Monday, March 11th. Mike Schmidt, you are arguably the best source reporter in Washington. When is the Mueller report going to come out, and what is it going to say? I don't know, and I don't know. No, but seriously, best guess. Best guess? Sometime in the next month or so. But I don't want to be in a position saying that

because a lot of our colleagues at other places have tried to put an end date on an investigation. Right. And that's a very dangerous place to be as a reporter. Yeah, I was just joking. I'm just... There's no joking in special counsels. Okay, so we know the report will be coming out relatively soon.

We don't know precisely when. Which is why last week we spoke to Neil Katyal, the guy who wrote the special counsel rules that have been guiding Robert Mueller. And he talked to us about the form and the size that this report would take. And I want to talk to you, Mike, about its actual contents and conclusions. What are those likely to be? So the president is being investigated for whether he obstructed justice

or has been a winning or unwitting agent of Russia. So there are three possibilities. The first possibility is that the report could say he broke the law, that he either obstructed justice or is indeed an agent of this foreign power. And if that's the case, that Mueller recommends charging the president with a crime, which would be a very big deal, what would happen next? general, Bill Barr, would have to decide whether to take the extraordinary decision of indicting the president or to follow Justice Department policy, which says that a president should not be indicted while they're in office. It's hard to imagine a scenario which Barr doesn't follow the policy. Which says do not indict the president. Correct. If that's what they conclude, they also believe that the only place to deal with wrongdoing by the president is Congress.

So that information, that evidence against the president needs to go to the House. Okay, so in that scenario, the special counsel makes the case that there's sufficient evidence to charge the president. And yet the attorney general, because of a legal interpretation he has, will not want to bring such a charge against the president. And from our conversation with Neil Katyal, we know that that information, to charge or not to charge, will have to be laid out to Congress. And Congress will receive that information from the attorney general. So then what happens? The Democrats in the House would take it and they'd say, oh, my gosh, Bob Mueller wanted to indict the president. We are going to take this and begin impeachment proceedings. It's hard to see Mueller saying the president broke the law and the Democrats saying, OK, we're going to take a pass here. Especially if they feel that such a charge was impeded in your scenario by the attorney general.

There was a good little episode that occurred around this several weeks ago that I thought gave us great insight. BuzzFeed posted their story that said that the president had asked Michael Cohen to lie to Congress. Big deal. Anonymously sourced. Within an hour or two, members of the House, leading Democrats, are talking about impeachment. That was the reaction. Now, we know the BuzzFeed story becomes a whole different thing. Complicated, unproven.

Complicated, et cetera. Knocked down by Mueller. But you think if the House of Representatives, the Democrats there are told by Mueller, I think the president broke the law, that they're not going to move towards impeachment. If they were willing to move towards impeachment based on an anonymously based story, you think that with all the weight they have put into Mueller, they have held Mueller up in such high esteem for two years, done all these things to try and protect him that they won't move as quickly as possible in that direction. Look, we're trying to predict the future here, which is difficult, but I don't see it turning out a different way, at least at this point. court that says the president committed crimes. It would give the Democrats license to investigate everything that they've said that they want to investigate, even beyond the limited scope of

the Mueller investigation, all seemingly in an effort to get to impeachment and the removal of the president from office. Look, the Democrats are going to investigate the president regardless of this. What a Mueller report saying the president broke the law would do is give the political wind directly at the back of the Democrats and push them hard in an impeachment direction, but also put pressure on Republicans. That's the difference. It will push Republicans in a way that we haven't seen before. Now, the other thing, Republicans have hung with the president throughout all this. They have seen how he has behaved for the past two years, and they've said, we're okay with this. So maybe they'll continue there. But a strong Mueller report would be the greatest test of

that that we've seen. So that is the brightest possible green light for House Democrats to dig and dig and proceed with their investigations. Correct. OK, that is the first possibility for how this proceeds. What is the second possibility, Mike? What is the second possibility, Mike? Mueller says, I've investigated for nearly two years and have found no evidence that the president broke the law or that he's an agent of foreign power. And Mueller's investigation could have found very unsavory political things about the president. But that doesn't mean he broke the law.

And we don't have enough evidence to clear that high bar of proving that the president broke the law. And here are my findings. So essentially, not enough evidence to charge, no charges. Best outcome for the president. And what are the implications of that from Mueller for the Democrats in Congress? That type of ending of the investigation would be very, very damaging to the ambitions of the Democrats to fully investigate the president and impeach him. It takes all the wind out of their sails because here they are, have said, we will wait until we see Mueller's report before moving forward with something like impeachment. We need to see what Mueller found. And OK, here's Mueller's findings. He doesn't have any evidence the president broke the law. That really hurts the Democrats' argument that they need to spend all of their time and energy looking into his conduct. But Mike, the Democrats

are investigating the president beyond what Mueller was looking into. So. But Mike, the Democrats are investigating the president beyond what Mueller was looking into. So I wonder about all the other lines of inquiry, the ones about the Trump organization, campaign finance, hush money payments, all the stuff, for example, that the Southern District of New York is looking into. Correct.

There's still all sorts of questions about the campaign, about the inaugural committee, about the president's business dealings, about the president's daughter and son-in-law security clearance. So there's rich areas to be looked into. We'll move forward with the same fervor and potential support from the average American or Republican that those types of inquiries definitely need to happen. And part of that is because the Democrats have put so much emphasis on Mueller. The Republicans have showed that they are going to stick with Donald Trump based on the current political atmosphere. that they are going to stick with Donald Trump based on the current political atmosphere. So if Mueller says there's nothing here to be seen, then the Republicans, we know where they're going to be. They're going to be standing next to the president. So in that case, do you expect the Democrats would proceed with these investigations, but they would kind of limp along and there

wouldn't be a ton of political support for anything approaching impeachment, no matter what is found? Or is it possible these investigations would literally just start to shut down? I don't think they shut down. I think that they limp along because the Democrats will still have a base that thinks that Trump has done a lot of things that are terrible. And there will be pressure on them to continue to press. Democrats will say, Mueller may not have enough evidence to show the president broke the law,

but we know that he has abused his power and done X and Y and Z, and they'll go on and on and on, and they'll say, we cannot ignore this. So if the answer is no crimes from Mueller, the Democrats and the Republicans basically will proceed as they have been proceeding. But the Democrats will have a much harder road to travel in their pursuit of investigations and potentially impeachment of the president. I think there'll be less interest from the public because the public will say, OK, we know there's been this investigation for the past two years. We think it was done by this guy that everyone seems to trust. He found that the president didn't break the law.

So why are all these other investigations going on? You have to think of it from the view of the person who hasn't been following every whiff and blow and says, well, what about the security clearance for Jared Kushner? And from the average perspective, they'll say, look, all this stuff was looked at. There's nothing here. So why am I still paying attention to this? So, Mike, what could possibly be the third option? Because in our legal system, when it comes to a special counsel, there only seems to be two options.

Charge the president with a crime or not charge the president. For a lack of a better term or to make up a term, I would call it the Comey hybrid. What is the Comey hybrid? Let's go back to July of 2016. Good morning. The FBI director at the time, James Comey, holds a surprise press conference. time, James Comey holds a surprise press conference. I'm here to give you an update on the FBI's investigation of Secretary Clinton's use of a personal email system during her time as Secretary of State. To say to the public, here's what we found in our investigation. This is going to be

an unusual statement in at least a couple of ways. First, I'm going to include more detail about our process than I ordinarily would, because I think the American people deserve those details in a case of intense public interest. Laying out that classified information had been found in Clinton's emails. There is evidence that they were extremely careless in their handling of very sensitive, highly classified information. classified information. For example, seven email chains concerned matters that were classified at the top secret special access program at the time they were sent and received. That she had been careless in how she handled national security secrets. There is evidence to support a conclusion that any reasonable person in Secretary Clinton's position or in the position of those with whom she was corresponding about those matters should have known that an unclassified system was no place

for that conversation. But that, at the end of the day, Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. It didn't meet the high bar of indicting her. We cannot find a case that would support bringing criminal charges on these facts. So a Comey hybrid is to come out and say no charges are going to be filed against the subject of an investigation.

But here are all the things we found. Here are all the implications. Essentially, not prosecution, but a kind of scolding. It's not even about scolding. It's, we're not going to charge, but I'm going to give you a rare look underneath the hood. Our investigation looked at whether there is evidence that classified information was improperly stored or transmitted on that personal system in violation of a federal statute that makes it a felony to mishandle classified information, either intentionally or in a grossly negligent way. This was a very big-time investigation that the entire country has been paying attention to.

If we stand up here and say we're not going to charge a crime, then the public will not take it seriously unless we show them our homework. And here is our homework. FBI investigators also read all of the approximately 30,000 emails that Secretary Clinton provided to the State Department in 2014.

That a Justice Department, which is controlled by one political party or the other, needs to be more forthcoming about what they have found to make the argument to the average person that their decision has been based on the evidence and not political favor. I know there will be intense public debate in the wake of this recommendation as there was throughout the investigation. What I can assure the American people

is that this investigation was done honestly, competently, and independently. No outside influence of any kind was brought to bear. I know there were many opinions expressed by people who were not part of the investigation, including people in government, but none of that mattered to us. He thinks a storm is coming

from the Republicans who control Congress at the time. And he's trying to inoculate the FBI from that by saying, here's what we found, here's why we decided what we did. Because he thought that he could use the facts of what they found as a shield to explain his decision. And how likely is Mueller to replicate that model? My guess is highly unlikely.

Why? Because Jim Comey has been blasted for what he did in that press conference and painted as someone who was using a criminal process to dirty up Clinton politically that in this country the Democrats would argue you should not use a criminal process to undermine someone politically and that's what his press conference did so the conclusion was that it was an unnecessary kind of gratuitous sullying of Hillary Clinton, even though there was no evidence she had committed a crime. Correct. They're saying if the FBI investigated the average American and found that that person had not committed a crime, we don't then stand up and say, hey, look at all the unsavory things they did, which we didn't think rose to something they should be charged with. Right, because Comey could have just come out and said,

we're finished, there are no crimes, thank you for coming, see you soon. Correct, but Comey's argument was, if I had not done that, no one would have taken the decision seriously. So you think that because of what Comey did and the reaction to it, Robert Mueller is very unlikely to make the same decision.

He won't employ the Comey hybrid as you have deemed it, and instead will probably get a pretty black and white Mueller report. It'll either be crimes or no crimes, not some hybrid where the homework is shown. If we're sitting here trying to predict the future of an investigation we have little insight into, sure. Okay. Mike, so far we have been talking almost exclusively about Mueller's assessment of President Trump himself. But as we know, Mueller has been investigating the entire apparatus around the president.

And he has already indicted dozens of people. So I wonder if in this final report, the biggest finding may not be about the president, but about the people close to him. For example, he could find that President Trump's sons have committed some kind of crime, his lawyers, people who work at the Trump Organization. I'm not sure what that would change politically, though. Tell me what you mean. The president's former national security advisor, campaign chairman, deputy campaign chairman, personal lawyer, have all been indicted. All people closely associated with them, closely associated with the campaign,

closely associated with crimes. And that didn't move Republicans politically on the president. So why would more drops in that puddle make a difference? Do you think there's a tipping point? Is there a straw that you think that would break the Republicans back on this? I think that straw is evidence that the president broke the law. I don't think it's more evidence that others around the president broke the law. So it really only matters

whether Mueller recommends bringing charges against the president. In my assessment, based on what we know, I think that makes the most sense. Which is kind of fascinating because we have been waiting 22 months. And what you're kind of suggesting here is that in the end, all these other indictments, all these other charges, all these other characters, those may end up being kind of irrelevant when it comes to the politics surrounding the future of this investigation

if the president is not charged. We already know so much. President's personal lawyer has pled guilty twice in two separate investigations involving the president. President's personal lawyer has pled guilty twice in two separate investigations involving the president. President's former campaign chairman has been charged two separate indictments. Paul Manafort. So why would more of that be any different? I don't think that's the factor that drives the story forward in a different direction.

It's the factor that drives the story forward in a different direction. But isn't there a world, Mike, where Democrats in Congress decide they don't really care about the political wins? They don't really care whether Republicans think their investigation is legitimate. They don't really care what the public may think about their investigation. They put their heads down. They keep investigating. They put their heads down. They keep investigating. And because the scope of their investigation is much broader than that of Robert Mueller, they find something very significant, very the law, and it goes to the Senate, and no Republicans come along, and it dies.

And Donald Trump runs on, look at the witch hunt that impeached me in the House, and they couldn't get it done in the Senate, and here I am running for re-election in 2020. They arm him with the ability to say, look at what they did to me. And you have to remember that, of course, there are stones out there that Mueller may not have looked under. But ultimately, Congress does not have the powers that Mueller had for his investigation. Mueller had a grand jury. He could use wiretaps.

He could dip his hands into whatever the intelligence community had. Jerry Nadler, the chairman of the House Judiciary Committee, and his investigators have a limited subpoena power, and they're seen as political investigators. So it's hard to think that if Mueller, in nearly two years of rummaging around Trump's life, didn't find it, that Nadler will. Thank you, Michael. Thanks for having me.

On tomorrow's Daily, a conversation with Representative Jerry Nadler. We'll be right back. Here's what else you need to know today. The incident took place at 8.38 when the flight took off from Bole International Airport. And six minutes later, it got lost in terms of radar surveillance. A jetliner carrying 157 people from at least 35 countries crashed on Sunday, shortly after taking off from Ethiopia's capital, killing everyone on board despite clear visibility and good weather.

The plane's model, a Boeing 737 MAX 8, is the same as an Indonesian plane that crashed shortly after its takeoff in October, killing all 189 of its passengers, renewing concerns about the safety of the popular new Boeing model, which is being used by dozens of airlines, including American, Southwest, and United. And the Times reports that President Trump will ask Congress for $8.6 billion in additional funding for a border wall when he releases his annual budget today,

setting up the latest political showdown over the proposal. President Trump's top White House economic advisor, Larry Kudlow. Larry, welcome back to Fox News Sunday. Thank you. All right, the president sends a new budget to Congress tomorrow. The request is on top of the nearly $6 billion that Trump is already trying to use for the wall by declaring a national emergency. So there's going to be another budget bite over the wall?

Well, I suppose there will be. I would just say that the whole issue of the wall and border security is of paramount importance. We have a crisis down there. I think the president has made that case very effectively. Democrats who control the House said the president's budget stood virtually no chance of passing,

but indicates he is willing to keep using the border wall as a political weapon in upcoming budget battles. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.