Transcripts For CSPAN3 Obstruction Of Justice Law 20171215

Society for law and policy hosted a discussion about what that means. Legal experts and scholars talk about how prosecutors build an obstruction of justice case. The laws governing investigation interference and how those laws might apply differently to the president and other Top Administration officials. This is an hour and a half. Good afternoon. Welcome and thank you for joining our obstruction of justice briefing. Im christian amorling. This is brought to you by a project im coordinating, citizens for responsibility and ethics in washington called the president ial investigation education project. We are grateful to senator whitehouse and his staff for graciously hosting us in this lovely meeting room and we are glad that the senator is planning to join the event a little later on to share his perspective. I want to start with a few brief thoughts about the joint acs crew project and the program today, and then ill turn things over to our moderator to kick off the discussion. The president ial investigation education project is a joint Nonpartisan Initiative of the American Constitution Society and citizens for responsibility and ethics in washington to promote informed public evaluation of the investigation by special Counsel Robert Mueller into russian interference in the 2016 election and related congressional inquiries. We do this by developing and disseminating analysis of key legal issues emerging in the investigations by connecting interested members of the public, press and policymakers to the Extensive Network of legal scholars and experts associated with crew and acs, and by Holding Events like todays briefing. We are driven by a view that the issues at stake in these inquiries are serious and have potential consequences and by an awareness that developments are resulting in legal questions that at times are very complex. We want to promote thoughtful thorough public consideration of these issues that is grounded in legal and constitutional analysis, amid the challenge that we all face of the hectic and high volume news cycles. So toward this goal, todays event focuses on obstruction of justice. We have convened a very distinguished panel of constitutional and criminal law experts, and we are focusing on this topic because obstruction of justice is an area of law that is in the scope of the inquiry by Robert Mueller, as set forth in the order appointing him, and since that appointment there have been multiple reports suggesting that he may be looking at obstruction issues. So the panel today will examine a variety of legal questions relating to obstruction of justice law and precedent. We will also have some time at the end for audience questions. One housekeeping note, for those of you in the audience interested in getting a cle credit for this event it qualifies for 1. 5 hours and you can sign up outside the door of this room. With that, i hope you enjoy the event and i will introduce our moderator, who will then give additional background about our distinguished panel and kick off the discussion. We are very fortunate to have Kimberly Atkins facilitating the conversation today. She has background both in law and journalism, and currently covers the white house, Supreme Court and congress for the boston herald, and in addition, is a guest host on cspans washington journal and is a contributor at msnbc. We know she is skilled at fostering lively and informative discussion and i will turn it over to her to get that started. Thank you. Thank you, christen and you all for joining us today for this very timely discussion about obstruction of justice. I have the pleasure to introduce our very esteemed panel for this discussion. Ill keep the introductions brief. You have their full bios in your materials for your review. We have ambassador norman eisen. He is chairman of the board of citizens for responsibility and ethics, as we said is a cohost of this event. Hes also a cofounder of crew. He previously served as the chief ethics lawyer for president obama and in that role he was dubbed mr. No for his cough Compliance Program he implemented at the white house. Hes also served as ambassador to the Czech Republic and since 2014 has been a visiting fellow at the brookings institution. Across the way we have barbara l. Mcquaide, a professor from practice at the university of michigan law school. She served as the u. S. Attorney for the Eastern District of michigan, the first woman to serve in that post. As a u. S. Attorney she oversaw cases involving public corruption as well as other areas of law public corruption as well as other areas of law. She serveds an assistant u. S. Attorney in detroit, my hometown, for 12 years. Judge sugarman teaches at Fordham Law School is is the author of the peoples court, pursuing Judicial Independence in america. And he is currently working on an anticorruption emoluments on the trump administration. He writes about law and politics on the blog, sugarblog. Com. As kristen said wreesh also expect to be joined by the senator of rhode island a little later on. We know you will have questions during this discussion. Fear not, we will have time at the end of the program to take your questions. So just hold onto them and know we will get to that. So i want to kick off this discussion just talking about some of the key federal obstruction and justice laws that are in place, sort of setting up the legal landscape, how it exists as we begin this discussion. And i want to start with norm. Thank you. Thank you, kim, and thanks everybody for joining us today. And im very pleased to be here representing crew as part of this president ial investigation project that we do together with acs. I must say and by the way ive received a promotion on the senior fellow of brookings now. They must like trouble making over there. I must say that in my america which began with 20 years of law practice here in washington, d. C. Principally as a criminal defense lawyer. I never imagined that i would see the day when the most pressing public question was the elements of an obstruction of justice claim and whether the separation of powers prohibits obstruction proceedings against a sitting president of the United States. Whatever downsides there are to the era of trump it has made law students of all of us, students of america in law of the world. So that is a silver lining. The crime of obstruction of justice is one in engloamerican law. And of course we trace our roots kim, how long do you want me to go for . Five minutes, okay. Its one that is as old as the idea of justice itself. Because, of course, as soon as you have a notion that individuals are going to be held accountable to the law, you have efforts to evade that accountability. And while there are a variety of obstruction of justice statutes, each of which has their own distinct elements and the case law is intricate, outside on the table there are copies of our brookings report on president ial obstruction of justice, which i did myself as a former defense lawyer, with my crew, a former prosecutor and a very distinguished currently practicing criminal defense lawyer in new york. And include the appendices well over 200 pages long and has dozens of pages talking about the elements. And i commend to your attention these are actually the issues Robert Mueller is grappling with. But i made an effort to boil it down for you, particularly now that i only have 3 1 2 minutes left. If an individual, any individual including the president of the United States because in our system no person is above the law. If any individual attempts to interfere with, block, frustrate or otherwise impede a criminal investigation with corrupt intent, then that is obstruction of justice in a nutshell. The most critical question is what is corrupt intent . And the case law, its been ruled on by all of our u. S. Circuits. The case law is very interesting because it goes right to the heart of ethical, of moral questions that lay just underneath the criminal law. Just underneath all those lengthy provisions in 18 United States code are a set of moral questions. Obstruction of justice, corrupt intent is addressed by the courts as theres no cookie cutter. Theres no simple test. It is evil or wrongful intent in taking an action. So if a president fires an fbi director because the president genuinely believes that that fbi director is not doing a good job or is not competent or has not been following policies, no corrupt intent. But as we explain in our report, if a president fires an fbi director and engages in other misconduct, demanding loyalty, asking the fbi director to drop an investigation, particularly if the president knows that the investigation is meritorious, if the president should know, for example, that the thing being investigated is a lie to the fbi, you dont need a law degree to know thats a violation. That is a textbook case of corrupt intent. Because the things you look for in defining corrupt intent are is the president trying to benefit himself, a Family Member, a friend, a former close associate . Is the president trying to hide something . So there clearly ought to be an investigation, and there can be no question now that there is an investigation by Robert Mueller of President Trump for obstruction of justice. It is not a lay down that obstruction occurred. And many people are saying and again not to shamelessly flog our report, we did work very hard on it. I think we were pressured in investing all those months into this big analysis. Its the only other place youll find Something Like this in the world, theres only two other places. Youll find it on Robert Muellers desk where his team has a running analysis for him how the evidence lays out the law, and youll find it on the desk of the Trump Defense team. Ty cobb and the others who are doing something similar, trying to fit this long body of cases and doctrine into the facts here. We did not glean neither of these memos on the inside, those memos which are never intended to see the light of day, dont lean one way or another. They take a look at how the facts apply to the law and they argue both ways. You need to be very objective when youre doing this work. It is not a lay down case. A lot is going to come down to which of trumps many and shifting explanations he offers to mueller when he talks to him. The special counsel will surely want to talk to trump. And whether believes him despite trump having perhaps the lowest truth rating of any president to occupy the oval office, and whether that explanation is an innocent one or a corrupt one, and whether the president is telling the truth, we dont know yet what judgment mueller is going to make. Part of the reason were cautious is whether its an indictment and theres some legal issues with that, whether it is referral to congress of the kind that was made in the watergate case relating to obstruction, the bar is a very high bar when youre proceeding against the sitting president. So it is by no means a lay down. It is a hard question. We have tried to address it, to take a seriously. But the one final thing ill say and my colleagues are going to talk more about this one particular. The notion that there is a legal obstacle, that any american case law impedes an obstruction prosecution of the president is sheer nonsense. There is no warrant for that in the Supreme Court cases, if anything, morrison v. Olson and the other things go in the other direction. Just like the president , individuals are prosecuted for exercising otherwise legally authorized powers. So that need not detain us for long, but were forced to talk about it because the president s and his lawyers have endorsed it. I hope i havent intruded on your presentation, but i would be remisif i didnt add that. I want to go to barb next and talk why is the obstruction of justice charge important to prosecutors, and how do you approach such a case, and what are the challenges . Thanks, very much, kim. Its an honor to be here today. Thank you to the American Constitution Society for the invitation and very honored to be with norm and jed on this important topic. As a former federal prosecutor obstruction of justice is a charge we took very seriously. The criminal Justice System depends on people to tell the truth. Thats how the whole system works. When witnesses come into court, we put them under oath. When they testify before the grand jury, that are sworn to tell the truth. When an fbi agent questions and interviews a witness, they are told that lying to investigators is a crime. And why is that . Because we want them to be on notice that its so very important that they tell the truth, its essential to the success of an investigation. And if that quest to tell the truth is to mean anything, then we have to hold people accountable when they lie so that we can deter people from lying to investigators, lying in court, lying before a grand jury in the future. We do that by prosecuting people who lie or otherwise obstruct justice, who intimidate witnesses, who alter or destroy documents or otherwise interfere with investigations. It is critical to the integrity of our criminal Justice System. And if conduct who obstruct justice goes unchecked, it makes investigations take longer. It makes it harder for investigators, and sometimes crimes remain hidden from the light of day because of the efforts to cover up those crimes. So for those reasons, prosecutors consider obstruction of justice one of the very most important cases that we investigate. So the other question was how does a case get built, how does a case arise . It always arises as part of some other larger investigation. And it usually begins because of some piece of information thats not consistent with other things that investigators know. A witness tells you something that doesnt add up, it doesnt match what other witnesses are telling you. It doesnt match what you know about documents. Theres something that is causing some conflict in the investigation and some suspicion that someone is lying or otherwise destroying evidence. As norm mentioned there is this requirement of corrupt intent. I tell my law students all crimes have two components, at least two components. Theres the actus reus and then the criminal act. Asking someone to lie, asking someone to stop an investigation, destroying or altering documents might be the act. The harder part of all of these cases is the mens rea, proving that intent. And one of the things a judge would instruct a jury about finding corrupt intent is to Say Something along the lines of we cant read other peoples minds. And for that reason we have to look at the totality of the circumstances to determine their intent. You should look at all the things the person said, all of the things the person did, and all of the surrounding circumstances. And from that you may use your common sense to draw reasonable inferences about the persons intent. And so those are the things that the brookings report does. In this case look at all of those factors to try to glean what was a persons intent. And then, of course, federal prosecutors also consider just because we can charge a crime, does that mean we should charge a crime. Using prosecutorial discretion is a very important part of what prosecutors do. And there is a list of factors called the principles of federal prosecution. And theres a whole list of factors that prosecutors are supposed to look at in deciding whether to bring charges. And among that list are the persons culpability, the deterrent effect of prosecution, and the nature and seriousness of the offense. And when it comes to obstruction of justice, it scores very high on that last factor, the nature and seriousness of the offense. As i mentioned, its one of the factors crime prosecutors consider the most serious because it undermines our search for the truth. Volkswagen, cheating on emission standards, lying to the epa, spewing 40 times the legal limits on its diesel vehicles and lying about those cars by creating designing software that could defeat the emissions test. After an expensive investigation volkswagen ultimately pleaded guilty to a number of crimes and paid a 4. 5 billion fine. We learned that while investigating there was a lawyer for volkswagen who said to a team of employees, you know, were going to confess to regulators that we were involved in some problems with our emissions. And were going to do that tomorrow. A litigation hold is going to go in place tomorrow. Did you hear me, i said tomorrow. And many of the employees took that to mean that they should destroy documents that might be incriminating against themselves or the company. And they did. More than 40 employees destroyed documents because of that. Ultimately volkswagen pled guilty not on this 4. 3 billion fraud. But we thought it was important to also require them to plead guilty to obstruction of justice as a deterrent and hold them actable because we considered that crime to be so incredibly important. So you can see why from a prosecutors perspective, obstruction of justice is considered one of the most important crimes we prosecute because it is so essential to safeguarding the Fair Administration of justice. Okay, and i want to take it to jed now. And were going to get into a little later exactly what we know about the current mueller investigation. But just before that, just in terms of if you are for a special counsel, what options does he have if he were to find evidence of obstruction of justice . If he were to build a case, and what historic precedent do we have that guides us to know what Robert Mueller might do if that evidence is there . So a couple of thoughts here. One i think the question a lot of people are asking oh, thank you. I was obstructing my own got it. Its on now. So the big question i think a lot of people are asking is can mueller bring an indictment against a sitting president. And these issues are really unprecedented for president s. I think the best arguments, though, are that a prosecutor may not bring an indictment against a sitting president. And there are a number of reasons why. Bullet i think its mainly functional rather than formal. It would be practically debilitating if you had one rogue prosecutor and one rogue judge, you could really take youd have a sitting president sitting in a jail cell. And that seems to be a problem. The framers when they put together the constitution seemed to have put it together with steps. You impeach and remove and then you can indict. Now, its functional not formal. So you could have a scenario where you might have to take a serial killer president to do something with him. Thats not what we have here. And in fact one of the Supreme Court precedents that we have on nix nix nix nixon vs. Fitzgerald contemp plates, that seems to indicate you cannot indict a sitting president. He does contemplate or it seems to open the door to indicting a president after leaving office for crimes committed that are official acts. And that relates to a question we can get back to. Really what i think we would want to focus on is how mueller is bringing indictments against others, and a historical example from watergate is that from in those indictments as the case grows a president can be noted as an unindicted coconspirator. So thats not an indictment against the president , but it starts to lay out the facts for the president without indicting the president himself. And there are also precedents like the star report in the clinton impeachment where the investigator lays out the case, where star had laid out the case in a report. And its then used by congress to draft articles of impeachment. And if we want to talk about watergate in one more way, watergate was driven by congressional committees and a select committee. In the end it was more driven by congress. And so you could have a report that then leads to articles of impeachment being drafted. I think theres also one more scenario that is increasingly important to discuss. And i think this is more urgent now given the tenor over the past four days. We need to talk about what happens if president tries to fire mueller. Theres a series of regulation created by the doj that should stand in the way legally if the president should fire mueller. It should say only the acting attorney general rosenstein could fire mueller. But there are many academics and lawyers who have a theory and not a good theory i would contend of a total unitary executive which gives the president total control to do and undue regulations within the executive branch. There might be an argument that they will put forward that the president as the chief Law Enforcement officer has the power to fire mueller. That would lead to some litigation much like we saw with the Consumer Finance protection, cfpb over a dispute. Its a little bit ironic that the antifraud agency of the government had a problem of identity theft. Each side was claiming the other side was engaging in identity theft. This would be a similar kind of question of does mueller have a job still. But as that would happen, what i would suggest is the other avenue to discuss is whether congress, whether a committee of congress either in the house or senate could go ahead and hire mueller, shift him from the executive branch into the legislative branch in the committee, whether Congress Might create a joint select committee. But i also want to suggest another path, because its hard to rely on congress to know what they would do, given they havent stepped forward to protect muellers job yet. But i want to suggest the states could step in. An attorney general of a state could hire mueller to pursue state crimes. And avenue that seems the most like is for a new York Attorney general Eric Snyderman to pursue state crimes like Money Laundering under state statutes or trafficking and stolen goodies or conspiracy to computer hack. There would be state criminal jurisdiction for which mueller could then be pursuing state crimes. And keep in mind a president does not have the power to pardon state crimes. The president ial pardon power only relates to federal criminal liability. So its important to talk about state criminal liability because of the pardon problem. Its also important to emphasize with the risk to mueller being fired as well. Okay, so lets take a look as we sort of dive deeper into exactly what Robert Mueller and his team might be looking into, what constitutes obstruction of justice, lets sort of start that with an eye on what we know so far and with a caveat that whatever we know Robert Mueller and his team know a lot more. But so far what we know about the facts as theyre looking at them. There was an nbc news report yesterday that the team is focusing on an 18day period from the point that they knew that the white house was informed that general Michael Flynn might be susceptible to russian blackmail to the point that he was fired. Im sure also it was after that 18 days, but the conversation that President Trump had with james comey about possibly letting Michael Flynn go, which happened i think a day or two later i think is also high on that list. What is also important from the facts that we know publicly will be salient to this consideration as to whether an obstruction of justice charge could be brought . You can start, norm. Well, the 18 days that are the principle but not the exclusive focus because in order to understand the 18 days to the extent the press report is accurate, you need to look before them and beyond them. The 18 days rotate around these questions of what the president knew, when he knew it, and why he fired jim comey, ultimately. And in a nutshell we know that sally yates came the acting attorney general came to don megan and indicated that the public statements that the white house was making based on flynns assertions were not accurate. And we know that there was a direct question from the white house counsel, from mr. Megan, about whether flynn had lied and was being investigated for that by the fbi and that she, thatiatthat yates sidestepped that. We know there was a conversation between megan and the president about all this. And it matters because if it can be shown, and we now have a tweet. Of course, the 18 days, the period has been revived because the president tweeted that the reason he fired flynn was because flynn had lied to him and had lied to the fbi. So if you can show it would be a big step forward, and i think this is the explanation for facts like hope hicks being interviewed for two days by muellers team for a very detailed ticktock. Its the pattern, the mosaic that barbara was talking about. If you can show that the president knew, likely knew, should have known at the time that he pressed comey can you see your way clear not to going after not to go after flynn, that he was aware that flynn had committed a federal crime by lying and was probably or certainly under investigation for it. Boy, that gets you a long ways away from the innocent explanation of gee, i dont like how comey was managing the fbi. Morale is lousy. To the corrupt intent of i better not let them go after my friend, whether its for personal reasons or because hes going to rollover on me. The last thing ill say in that regard, and i know barbara and her prosecutors did this a lot. Flynn got a very sweet deal from bob mueller. Hes only getting that kind of a package given the nature of his offenses if hes going to testify up the ladder on somebody else. I did this for 20 years. You dont get a deal like that when youve done the things that flynn did unless youre youre willing to flip on somebody more senior. And so the fact that we now have flynn in the mix suggests that he may have something to say about this question of corrupt intent and obstruction during the key window, like trump telling him to lie or him telling trump he had lied to the fbi agents. I dont know if either of those are the case, but those are the kinds of things that might excite a prosecutor. Barb . Well, ill agree with norm that Robert Mueller now has a potential treasuretrove in Michael Flynn because he knows about all the conversations. He knows what was said. And Robert Mueller would not have given him that deal, a plea to false statements with an advisory guideline range of 0 to 6 months with the likelihood of serving only probation unless he had information in exchange for that. You dont get that until you sit down and debrief with the defendant to understand what he has to offer. So he likely has gnat information. I agree with kim that those 18 days are really critically important because we have at the end of that period the request from President Trump to jim comey, i hope you can see your way clear to letting this go. What he said corrupt intent, that mens rea is so important, what did he know at that time . Did he know flynn had lied foothe fbi at that moment . And if he did, that means he knew he was asking comey to let a crime go when he was asking him to let this thing go against flynn. Did he further know about the underlying conversations with the Russian Ambassador that was the basis of those false statements . And did he further know who else might be implicated in an investigation about those statements . We see in the statement of offense filed along with the documents that there were at least two highlevel, one very highlevel Senior Member of the Trump Transition Team who was in conversation with flynn at the time he was having those conversations with the Russian Ambassador. Did trump know that . And finally what did he know about the big picture of the investigation . Was he concerned not only about the false statements, not only about the Bigger Picture of the conversations with the Russian Ambassador, but is there more to the story is there more interference between russia and the election that trump is trying to cover up . And if as the circle expands, i think the evidence of corrupt intent becomes greater. Because it suggests let this guy go because hes a good guy, but im concerned about greater exposure on my team or even the president himself. So i think its why those 18 days is critically important about what did he know and talking to those people who might be able to paint a picture for Robert Mueller and his team. Jed. I have one point on mueller and his team. First, i think its quite possible the reason why theres all of this speculation about mueller investigating these 18 days because flynn might have already told mueller i was told to lie. But he also knows hes not the most credible witness hes going to have. One, hes already pleaded guilty to lying to the fbi. The defense counsel will use that first and foremost to say hes already a felon in terms of lying. And then they will also be able to introduce the deal, they will be able to frame the deal to the jury to at least suggest very clearly that he may have a motive to lie now to setup this case for mueller. So its very important for mueller to substantiate in some other way. Though the witnesses hes talking to have to be quite worried whether they might be lying. So you cant rely on flynn, and mueller has to find someone else, but hes got a leverage for federal and state criminal liability to get someone else to confirm if its in fact true. The thing i want to emphasize is theres already a strong obstruction of justice case already based on what things trump has said in public. Look at this time line. Trump has said hes going to fire comey and he and stephen miller, i cant wait to see the miller showdown at some point. But he and miller sit down and write this letter. Its so problematic that don megan, the white house counsel, says that letter cannot see the light of day. I think theres reasonable speculation or some implication that it may have talked about the Russian Investigation as the reason why hes firing comey. There is a draft of that letter somewhere, in a database somewhere and mueller will be able to see that letter and in fact it laid out the trump and russia investigation as a reason to fire. Keep in mind many other people participated in that letter. Jared kushner allegedly participated. Vice president pence allegedly heard that letter. Theyre also implicated in aiding and abetting to obstruct justice. So there are many more people who might tell the story to save themselves from that liability. Then a day after trump fires comey on may 9th, on may 10th in the Oval Office Trump says to kislyak and lavrov, two russian officials. He says i just fired the head of the fbi. He was crazy, a real nut job. I faced great pressure because of russia. Thats taken off. And then the next day as if that wasnt enough trump goes on tv with lester holt and tells the country, he says and in fact when i decided to do it, meaning firing comey, i said to myself this russia thing is a made up story. Its an excuse for the democrats for not having won an election they should have won. You can see it as a demonstration of corrupt intent or an improper purpose to shutdown the russia investigation. Add to that the context of what comey has described before he was fired, add to that the tweet we talked about. I fired flynn because he lied to pence the and the fbi. And it establishes more to the story. But basically trump has made the hardest part of the case establishing mens rea and corrupt intent. And hes made that case almost easier with what he said about the firing. Theres a lot of talk throughout this investigation about collusion, which we know in itself is not a crime. But there are other crimes. Conpier conspiracy, i guess would be the closest to that and other things. But if thats the case of this investigation and theres no clear evidence of an underlying crime, can a prosecutor still bring an obstruction of justice crime by itself . Yeah, i can start on that one. So the answer is yes. Obstruction of justice is a crime in and of itself. If you seek to impede a proceeding, and there doesnt even have to be a pending proceeding, as long as a proceeding is foreseeable in the future. If you have the actus reas and the mens rea, you can. Oftentimes if you bring the obstruction of justice case, it can lead to an underlying case. We had a hate crime where a group of men set a fire to the home of an africanamerican family who had moved into a white neighborhood. They were suspected of committing this crime, but we couldnt make out the crime. We knew they were providing inconsistent stories and one was clearly lying. So he was charged with obstruction of justice and ultimately able to flip him, get him to cooperate to get additional evidence that was able to prove the underlying case. So not only can it be charged alone but frequently can be used as a tool to create the underlying conduct. I have two questions, and anybody can join in. One is can otherwise legal conduct, conduct that would be within the power of the president or anyone in the white house to do, rise to the level of obstruction of justice if it has those two elements that weve been talking about . And what kinds of expressions could be used to do it . For example, as we pointed out james comey said that the president told him that he hopes he sees it clear to let flynn go. Is an expression of hope enough to be considered evidence of obstruction of justice . An expression of hope is sufficient, and in fact the issue has frequently been litigated because when defendants are doing obstruction talk they often try to be kind of elusive. So specifically there are cases, we talk about them in our paper where saying, gee, where hope those televisions fall off the truck. That kind of language is sufficient meaning is obstructive. And otherwise legal conduct, theres a long list of cases across the country, this matter has been litigated. The argument, gee, its legal if im a sheriff and i otherwise have the authority to unquestioned authority to arrest people or to run a sting operation, or if i as an attorney otherwise have the authority to issue a subpoena to somebody in a pending matter. But if i do it with a corrupt intent, im thinking of a case in california where the Sheriffs Office was involved and they tried to use their powers in order to intimidate an investigation of corruption. Corrupt intent. So its totally made up, abhorrent to american law and totally made up literally on the fly and its nonsensical, the notion that the exercise of lawful powers for an improper purpose cannot be corrupt and therefore obstructive. So it sounds like youre saying that the power the person has is a crucial element to this, i mean in the case of a sheriff or even an attorney and certainly the president . I mean abuse of that power has been in case after case after case. Now, that is not to say i should say, and this goes to jed so were not just agreeing with each other. That is not to say that its a easy case. Whenever theres and i think this may be why flynn is so important to making the obstruction case. Because mueller does look at this as a man whos tried many a case to a jury. And you ask yourself how can i sell this. Okay, i think something wrong happened here, how can i persuade a jury of that beyond a reasonable doubt . Its much easier to explain why, if the facts lay out this way, you tell somebody to lie about the instructions that were given to talk to a foreign ambassador or not because its embarrassing. And then in order to protect that person you try to get an investigation dropped. Putting a human face on it is an easier thing to complain to a jury. Its easier it get an a conviction than more abstract considerations of the russia investigation. Particularly if it may turn out that that complex, foreign, somewhat nebulous in the president s foreign apolicy powers ultimately involves a lack of collusion, a lack of any real proof that there was a causal relationship between russia and an election outcome. So helping a friend in order to spare yourself from embarrassment is an easier more human case to make to a jury. But this is not easy, and mueller is undoubtedly wrestling with it. And theres no guarantee hes going to even if theres good evidence, theres no guarantee its going to pass the prosecutorial sniff test. I had a defendant who i cut a plea deal for, cooperatation deal for with his office when he was an attorney in san francisco. It was a long negotiation. But when its a sitting president , youve got to admit that its a higher bar. Sure, i think this conversation touches on the way this debate this unitarian executive aurm h executive argument has shifted in the last week. The debate among some defenders of president ial power or maybe defenders of trump, trumps own lawyer has said that a president can never obstruct justice. Right, and that argument theyve made this forceful aurm argument a little bit like when nixon said if the president does it, its not illegal. Fortunately i think lawyers have all backtracked from that stretch of an argument. But they backtracked to what is a problematic argument. This is dershowitzs fall back. He said the president cannot be charged with a crime for merely exercising his authority under article ii. Article ii of the constitution is the executive branch. This includes firing the dpre t director of the fbi. So it goes onto say if trump has committed an independent act, something beyond firing beyond acts that were within his constitutional prerogative, it would be unconstitutional to charge him with obstruction of justice. The argument is because the constitution gives him enumerated power, then that president has limited discretion however he or she wants to use that power corruptly or noncorruptly, you need that crime. Later another academic, andy graywall, was engaged in a debate about this argument. And someone challenged his theory and said i understand your theory in legal analysis, but does it stand true in every act . He responds the acceptance of a bribe is not an official ooact,o that could be criminalized. He wants to separate pardoning from the bribe. Then this attorney said you dont have to pay a bribe to commit bribery. Its the agreement to do so. And so without a Side Agreement i dont see how firing someone could even be considered payment of a bribe. Let me specific about why this opens the door to why this argument is flawed. And i can give you a thought experiment. Imagine if some billionaire sent a coded message to the president , and that message to the president is if you pardon x or if you fire x and then hire my cousin, nominate my cousin i will send you through bitcoin or something a Million Dollars. And there is no response by the president and any other message back, the only thing the president does is he pardons the cousin or he fires an official, fires an official and then nominates the cousin. The only thing that the president has done is the official duty under article ii. Hes either exercised his power to pardon, or hes exercised the power to fire and or nominate. In this model, right, you have to have some other act. Well, if you needed some other act, and this would be a giant loophole for president s to simply say as long as you send me a message, i will just do the firing or pardoning or nominating and then at least you can spend a Million Dollars on independent advertising for my reelection campaign. And there would be no legal ramification for that behavior. Although maybe impeachment would be available, but youd still have 34 senators who could block it. So that result cannot be right. So the point is that firing comey whether it was done for a promise of a Million Dollars or as a bribe or done for obstruction of justice, the act of using an official constitutional power could be both the actus reas. It can be the only act that officially demonstrates an act by the president under criminal law and mens rea, corrupt intent. And because of that hypothetical that i think demonstrates that an official act by the president even if its constitutionally delegated to the president could still be the execution of some felony. So say hypothetically that Robert Mueller and his team have evidence that they believe supports a charge of corruption of justice of obstruction of justice against the president or Vice President , what then . Can he prosecute them . Well, ive said before that my view, and i think this is bolstered by historical evidence, is that mueller cannot bring an indictment against a sitting president. But he could bring those functional problems do not pertain to a Vice President. So other officials besides the president could face indictments the same way weve seen indictments of manafort and papadopoulos and flynn. We could see that in all other cases. I still think the bottom line is that the right way to proceed historically based upon the design of the constitution is to proceed by impeachment and removal. And then there might be indictments, there might not be. Id also say here given how impeachment and removal go, it may be perfectly reasonable for trump to have his own gerald ford. In the same that ford pardoned nixon, i think history has been kinder to fords decision to pardon nixon than there was at the time when it was more controversial. I dont think we need to chant lock him up in this room. I think we need justice and accountability and impeachment can bring that out. But we dont necessarily need prosecutions. This paper does a nice job of laying out the options on this. But i think as a practical matter i agree with jed, Robert Mueller is required under the special counsel regulation to comply with all department of justice policies. And the department of justice itself in the office of Legal Counsel gave an opinion during the watergate era that a sitting president cannot be indicted. Instead the remied is impeachment. So i would expect that Robert Mueller would follow that guidance and proceed in that way, providing a report to the house judiciary committee, laying out the case for them to decide whether they want to proceed by impeachment or not. Well, we have indeed tackled this this question. But i see that the senator is here, so im simply going to point you and i cant talk this fast anyhow, but im going to point you to pages 90 through 90 good, lord, we took a lot of pages to talk about this. Pages 90 through 101 in which we point out that the olc opinion is not binding. The views of three special counsel or special prosecutors, that they can prosecute a president and the deep principle basis to believe that such prosecutions are appropriate. Im going to welcome cara stein from acs to introduce the senator. Thanks, kim. Good afternoon, im name is cara stein, and im the Vice President of policy and program at the American Constitution Society. It is my great honor to introduce a good friend to acs and a champion to all those who care about the health of our democracy, senator sheldon whitehouse. He served as attorney general of rhode island. Before being elected to United States senate in 2006. He is a leading advocate to protecting access to justice and a critic on the influence of money in our politics. His recent book captured the recent infiltration in american democracy, exposes the extent to which our government is now beholden to corporate interest. And he is the Ranking Member of the senate judiciarys subcommittee on crime and terrorism, which has been central in the investigation of russia interference in the 2016 election. Please join me in welcoming senator whitehouse. [ applause ] thank you for inviting me. Its a pleasure to be here, and im a great admirer of acs and all the wonderful work you do. Youve got a superb panel here, so i dont want to take too long. But i would like to make three points. The first is that i am of the quite firm view that the presidency does not conifer upon its occupant immunity from prosecution. The best case that can be made because the constitution specifically provide tat the target of impeachment can be indicted and prosecuted, indeed instructs that that is the case. So as one commentator pointed out, the question is not whether but when. Given just the practice of investigation, grand jury work and so forth, the logical best argument against that is that the president has a right of some kind to have a court adjudicate whether or not the trial should proceed once an indictment has been rendered. Otherwise you get into a very bizarre nevernever land in which you have grand jury activity protected by rule 6e. You have no real means of getting information from that process to the court or to the congress. The ordinary way you do that is by laying out a very comprehensive indictment the grand jury then votes on, and thats how it becomes public. And that would be the moment when i think that congress would have something to consider in terms of impeachment, and you may want to have a situation in which the special counsel and Congress Work together to ensure one isnt bumping into the other. But it seems to me a real stretch that immunity from criminal prosecution is conifer conifered up conifered upon the president. If he were to murder somebody, he would be charged and the charges pursued under proper courses of law. And to take that away when we have a Vice President who has virtually no other task other than to be ready to take over the duties of the presidency, why would you put that person in if there was not that liability of the president . So thats the first point. I think its a stretch. The second point is that i think we have to be alert to a very consti c c consti c conspicuous campaign. I think we have to be very, very watchful about this because it has all of the hallmarks of propaganda and manipulation as opposed to genuine expression of opinion. And when you line it up against some of the other traditional bench marks and referees that are depicated in the tact whenever they blow the whistle on the trump administration, you come to a pattern of this administration essentially trying to get its own way even when the refs blow a whistle on it by saying that the ref is tainted. And taken into a logical conclusion that ends checks and balances, and that ends the Important Role of the state. And that turns a limited democracy with checks and balances into an authoritarian regime in which the administration becomes its own propaganda outlet. And we dont want to go down that road. The third point id like to make and my final one veers a little bit away from obstruction of justice and steers back to the russia, trump investigation and itself. The focus of the senate in that investigation ought to be, among other things and perhaps first among other things, on protecting our democracy from further russian political interference. And the testimony has been unanimous and unquestioned that the russians are going to continue to do this stuff. It is what they do. We have not had a witness before any of our Senate Committees say, nope, that was a oneoff. Weve got them on the run now, its not going to happen again. Every single witness has said, nope, theyre coming back, you can bet on it. Theyre not going anywhere. They dont even mind very much being caught because it shows them being players and meddlers. They dont want to have a hard fingerprint perhaps on things, but they love the notion around the world that they are meddling with america and disrupting our operations. So i think we have a very clear threat in front of us. We also have very clear advice. And the very clear advice is that putins interference in our democracy or anybody elses for that matter, whether its the grand iatoll from iran or the saudis or whoever, that the vector for that improper interference is corruption and the absence of transparency, opacity. And we as americans and we as democrats have very important equities in trying to solve the problem particularly of opacity. Because where you dont know whos behind campaign funding, you have no way to know whether its Vladimir Putin. If you want to hold off foreign influence on our elections, you have to make sure that our elections are transparent. And that is another virtually unanimously agreed point from all of our witnesses. And that applies not only specifically to Campaign Finance machinations that allow money to turn into dark money, to turn into improper and perhaps foreign influence. It also refers to Shell Corporations and the entire apparatus of anonymity that supports putin and his klepto cashe by allowing them to cash their money over here and find the safety and security of their rule of law for their illgotten gains. But it also allows them to launder malevolent and illicit activities through one, two, three, you can stack Shell Corporations and hide things that look potentially benign. So two very important policy goals that are cleary, clearly, clearly established in our hearings are to clean up dark money in our elections and to clean up dark shell and Shell Corporations in our country. And those are things that would be good for us as well, and they put the party into a significant pickle. Because the very same transparency that will reveal the fact that its Vladimir Putin messing in our elections will reveal how the coke brothers mess in our elections, will reveals how the mersers mess in our elections, will reveal how exon mobile messes in our elections. It would essentially blow up donors trust, which is an organization which exists for big donors on policy. And were the shoe on the other foot. You can bet that this would be an absolute republican priority, where they could line up National Security, the patriotic interest we have in free leectiol elections. And theyd be beating us on this issue every single day. And we need to make sure we can do this right because it is the acme of weakness to be unable to take advantage of a moment like this where the interests of our country are all exactly aligned. So i urge upon all of you that you think about this issue in those terms as well as in the specific terms of whether the president has obstructs justice. And with that, i con cluclude m remarks. I have a question for you while youre here. Sorry. Occupational hazard. Water. Sure. Weve been talking about obstruction of justice in the context of the special councils investigation. But what if your committee or other congressional committees that are looking into russian interference find evidence of obstruction of justice . What can you do . Well, probably the most important thing would be to either make it public so it became so that it came to the attention of the special council. Or to communicate it to special council privately so that they could have a chance to have a voice in us whether we should reveal or not reveal, something that we know. One of the things that we dont know and should not know is who special council is running right now as a cooperator. We didnt know about others cooperation until a plea agreement was revealed. That puts a bright light on everyone from the trump team to stay away from. It is possible he had assembled information on his own early on without a cooperation agreement, just to have tirl material to w with. He may have recorded calls. There are others that are presently unknown to the Trump Organization who are gathering information as cooperating witnesses. And the last thing we would want to do in something that came up in the senate would be to prejudice anything that was on going. Prior notice to special council is what we plan to do is a very appropriate courtesy. And then we could make the decision if we should go forward anyway because ultimately the senate has just as much right to go forward to do whatever it wants even if it inconveniences special council. But we should know. You dont want to inadvertently interfere with that investigation. But if our equities and priorities are such that even if its an inconvenience to special counsel, the senate should go ahead. Go ahead and do what . Have public hearings that built the record so that depending on how far it went you could have both Public Awareness of what was going on and then potentially it adds to the battery of evidence that could be considered were the house to take up an impeachment resolution. Okay. Have we got time to ask you one more . Sure. I always invite people he will blow the whistle when i have to go. I always invite people to reach out on twitter when we have an event. This will be broadcast on cspan and rebroadcast. So ill ask on behalf of some of my twitter followers who want to know, what is the most effective thing given the current state of events that you so he will consequently described . Whats the most effective thing that individual citizens and people out there in the u. S. Can do and how effective is it, as i often tweet them to do, both parties, by the way. You know, i do all this work with richard painter, a card carrying conservative republican. Many, many republicans who are agitated about this so irrespective of party, what is the most effective thing or things that folks out there in the world can do, senator . I think to agitate for Campaign Finance disclosure which is ordinarily a bipartisan issue and was for years a bipartisan issue. And to agitate for incorporation, trans paparency. The fact of the matter is that the republicans were fasr quickr off the mark after Citizens United was decided than we were. We had a long period of introspection and anxiety on whether to take advantage wlof what Citizens United provided. They didnt have such scruples. They were ready go like a sprinter as soon as they had it in their hands. And it did not take them long to figure out the various machinations through which they could take the Unlimited Money that they can spend in our elections and make it unlimited dark money so nobody could see their fingerprints on it. And, of course, worse than that if you want to do a sidebar on the Citizens United decision it, its not the Unlimited Money that is the worst. Its not the Unlimited Money thats gone dark that you dont know who is behind it is the worst wlachlt is t worst. What is the worst is the promises and threats that the ability to spend unlimited dark money enables. Because youll never see any sign of those promises or threats. You may see the dark money spent. Just wasnt know who is behind it. You see the unlimited spent if somebody is disclosing which they ordinarily dont. Youll never see that third level. Thats whe th thats where the bulk of the iceberg is. The threat and power and promise and manipulation that all enables in politics, thats the big bulk down under the iceberg. And for the Democratic Party to follow the Republican Party in the short run is probably a political necessity. But we really ought to clean this mess up. Because democracy is not well served by unlimited dark money and the threats and promise thats it enables. It just is not. And i think the coincidence between Citizens United and the rise of the ire that led to donald trump is not just a coincidence of time. We got to clean up this mess. It will make a huge difference in our politics. So militate like hell and agitate like hell on Campaign Transparency and Shell Corporation transparency. All right. This was the point where we were going to open up the session for questions if you have them. If there is a microphone right here, and if senator whitehouse could stay for a few more minutes like that. Laura gives me the hook. Until then im good. Yes. You mentioned the corporate transparency. Where do we stand on dealing with the individual states which maintain that secrecy . This is not so much a federal problem because under federal law we have pretty much full disclosure. Its a federal problem in the sense that we have not bothered to require states to comply with federal priorities in this area. I think it is a federal priority that the United States of america not become a giant caiman islands, the home for criminals and people who are up to no good from around the world. I think theres even a National Security component to not being known as that whether we have for generations, you know, shown ourselves to be the city on the hill. Some city on a hill is where all the dark money goes. We have to clean this up for a whole lot of reasons. The states are tough. I mean, you know, nevada funds teachers through this. They kind of baked it in by building that constituency. Delaware has an entire industry of this. I forget which of the dakotas, north or south dakota so heavily involved, one of the two. And they drive the secretary of States Association to oppose this and the lawyers that enable this who frankly should be ashamed of themselves drive the american bar association, believe it or not, to oppose us on this. And its unairing taste for supporting all things evil drives the u. S. Socalled chamber of commerce to oppose us on this. So we have some fairly big adversaries. I dont think there is much merit to the opposition. I think its mostly representing the small faction of their membership that traffics in this business and makes money off this business. I suspect the yacht broke woers would have an objection and high end realtors might have an objection. Its not a haven for International Crime and cleptocracy. You have a question . Good Law Enforcement support by the way on this. And if you could come up to the microphone to ask your question. Which is helpful. Just so we can get it for our recording. Thanks. So weve been hearing news reports of the president potentially firing mueller. What do you think the senates response is to that . At the moment, i think there would be intense blowback if he made an effort to fire bob mueller. Its also not easy to do. The danger is a slow motion effort where you either fired or convinced sessions to resign. And then you try to get an attorney general in place that would not be recused from the investigation in the scope that bob mueller has defind it. He would say im here now, im not recused with the attorney general not recused, we no longer need special council. Thank you, bob, for your service. Were bringing the career people together and were going to keep this going and see if there is a case to be made. And well do our duty and say all the right things and little by Little People would let go or transferred out or stalled or leaked. There are are plenty of ways to manipulate and mess with all of this. My worry is less that that will happen now. Six months from now after the rightwing media operation has pr propagandized against mueller for a long, long, long time and propagandized against the fbi for a long, long, long, long time and has begun to build a wave of partisan tribal signalling. I feel we have enough support out there that we can make that decision. Thats the question. How many of our republican colleagues will at that point say okay, thats the bridge too far. So thats an unknown. If he would do it now, i think it will blow up in his face catastrophically. Ill just add on that that acs and crew have jointly as part of our president ial investigation project just issued a report explaining why the legalities make it not just a political consequences but the legalities make it not so easy for trump to oust mueller. We provided a copy for you. And among other things, there are if trump were to try it in an illegal way, there would be judicial remedy thats wouie lie against him. He made his situation infinitely worse by firing jim comey in a possibly obstructive fashion. Its a very, very messy thing to do. And what he would have to think about would be whether his firing of mueller or i should be more specific, his efforts to fire his way through i interimmedia interimmediate people to fire mueller would not be an obstruction of justice. And being incontinent with his tweets, he is building a good record. I mean there are tweets of his that if a grand jury or jury believed that the requisite intent behind them are present are themselves obstruction of justice. If his campaign to attack and criticize the credibility of jim comey was believed to be targeted at the grand jurors so that they would not believe the testimony of jim comey whether he came in when he came into grand jury, that would be an effort to interfere with the grand jury. That under the obstruction statutes is quite plain. So intent becomes key. Everything becomes very, very filled with hazard potential. The same could apply also to pardons, depending on particularly self pardons. Yep. I dont think you can self pardon. But if you pardon a Family Member or if you pardon somebody who appears they may be cooperating, think the pardon is probably good. And so when you get into these things, you then begin to create now just imagine if this starts to look really bad and you are the white house counsel. Or youre in the White House Counsels Office and it begins to look to you like youre being asked to commit an act that you know to be intended to obstruct the grand jury or obstruct the investigation. You now have a very interrogatointeresting conversation with your lawyer about the doctrine of conspiracy. And that begins to cause enormous stress within an organization. So theres a point where this obstruction thing becomes the cloud that basically grinds the white house operation to a halt. So far it appears to me that hes more or less stayed inside that boundary. I dont have the information to know otherwise. But one can easily hypothesize the situation in which it is clear because of what they know inside the white house to members of the administration that this is, in fact, an effort to obstruct justice, is, in fact, an effort to reach into the grand jury and influence what they are doing, is an effort to stop or obstruct the mueller investigation, whatever it is. And that, therefore, their own continued cooperation, support and participation in it now potentially imperils them. Do we have any other questions . Very interesting. All right. Well, i thank you all for what youre doing. There is an important thing to attend to. In the context of fixing the dark money and the Shell Corporation problems that bedevil our democracy and being prepared to respond to the effort to attack all the referees including the rule of law and those who seek to enforce it, these conversations are vital. So thank you very much. Thank you. We have a couple minutes left if you have any more questions of our panelists about obstruction of justice. If not, if you could join me in giving a round of applause and thanking our panelists for this discussion. Ahead on cspan3, a House Committee review of a new law expanding veterans education programs. And later, a discussion of whats needed to move federal Energy Infrastructure projects ahead. This weekend on American History tv on cspan3, saturday at 6 00 p. M. Eastern on the civil war, generals we love to hate with author craig simons on confederate general joseph johnston. Johnstons critics argue that his timidity with the enemy and his combativeness with the confederate go. In richmond so undermind the southern war effort as to make him a contributing factor in confederate defeat. To these critics, johnston was the real mcclellan of the west. A man who lacked the moral will to commit troops to battle unless he could be absolutely certain a victory and since those circumstances never obtained, he seldom if ever sought battle at all. Sunday at 4 00 p. M. Eastern on real america, the white house naval photographic units monthly reports on president lyndon johnson. Two days after his return from new york, the president s oldest daughter linda bird johnson became the bride of captain charles rob of the United States marine corps. Historically it is the First White House wedding in 53 years. And at 6 00 on american artifacts, the 200 year history of the Willard Hotel in washington, d. C. , wlohose guest include lincoln, world war ii soldiers. Abraham lincoln conducted quilt a bit of business while he was here. He stayed for ten days. In fact, the First White House levy was held not at the white house, it was held at the wood hotel. When he introduced himself and his wife was quite a bit shorter, he said i want to introduce tout lo introduce you to the long and the short of the new presidency. American history tv, every weekend, all weekend only on cspan3