Transcripts For CSPAN2 Obstruction Of Justice Law 20171213

Good afternoon. Welcome, and thank you for joining our obstruction of justice briefing. This event is sponsored by a project uncoordinated for the American Constitution Society, and 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 were 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 project and the program today, then i will 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 that are emerging in the investigations by connecting interested members of the public, press and policymakers to the Extensive Network of legal scholars and experts associated, and by Holding Events like todays briefing. We are driven by of 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 highvolume news cycles. So towards this goal todays event focuses on obstruction of justice. We had 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 been multiple reports suggesting that he may be looking at obstruction is used. So the panel today will examine a variety of legal questions relating to obstruction of justice law and precedent. We also have some time at the end for audience questions, and when housekeeping note for those of you in the audience were interested in getting a cle credit for this event, it qualifies for 1. 5 hours and you can sign outside the door of this room. So with that i hope you enjoy the event and i will introduce our moderator who will then get some 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 as a guest host on cspans washington journal and is a contributor with msnbc we know that she is skilled at fostering lively and informative discussion and i will turn it over to her to get that started. Thank you. Iq, kristin, thank 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. I will keep the introductions brief. You have full bios in your materials for your review. We have ambassador norman ison. He is chairman of the board of citizens for responsibility and ethics which as he said as cohost of this event. Hes also a cofounder of crew and he pretty served as the chief ethics lawyer for president obama, and in that role he was dubbed mr. Know, for his test Compliance Program that he implemented at the widest it is 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 mcquade, professor from the university of michigan law school. She served as the is attorney for the Eastern District of michigan, the first woman to serve in that post. We expect to be joined by the senator from rhode island later on. When we comes on, he will hopefully take some of your questions as well. We in you will have questions during the discussion, fear not, well have time at the end to take questions. Hold on to them and know well get to that. 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, kim. 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 acf. I must say oh, by the way, ive received a promotion, im a senior fellow at brookings now, they must like troublemaking over there. I must say in my career, 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 downside there are to the era of trump, it has made lawsuits of all of us, students of american law of the world. So, thats the silver lining. The obstruction of justice is one in Anglo American law and of course, we trace our roots and kim, how long do you want me to go for i should ask . 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 reports on president ial obstruction of justice, which i did with myself as the former defense lawyer with our crew, executive director, who is a former prosecutor and barry burke, distinguished, currently practicing criminal defense lawyer in detroit. The appendses and its over 200 pages long, i made an effort to boil it down for you, particularly i only have three and a half minutes left. If an individual, any individual, including a 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, as been ruled on by all of our u. S. Circuits, the case law is very interesting because it goes right to the heart of the ethical and 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 and obstruction of justice, corrupt intent, is addressed by the courts as theres no cookie cutter, theres no simple test, its evil, wrongful intent in taking an action. So, if a president fires a fbi director because the president genuinely believes 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 a 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 that thats a violation, that is a textbook case of corrupt intent, because the things, the things you look for in defining corrupt intent is is the president trying to benefit himself, a family member, a friend, a former close associate . Is the president trying to hide something . And the 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 laydown that obstruction occurred. And many people are saying, not to shamelessly flog our report, we were prescient in all of those months into producing this big analysis. 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 of how the evident play lays out with the law and youll find it on the desk of the Trump Defense team, ty cobb and the others trying to fit this long body of cases and doctrine into the facts here. We did not lean neither of those memos from the inside, having worked with mueller, having been a white collar defender, those memos, which are never intended to see the light of day, dont lean one way or the other. They take a look how the facts apply to the law and argue both ways. You need to be very objective when youre doing this work. Its not a laydown 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 mueller believes him, despite trump having perhaps the low eest truth ratig 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 in our report is, when you are whether its an indictment and theres legal issues with that, whether it is referrals 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 a sitting president. So it is by no means a laydown. Its a hard question and we tried to address it to take it seriously, but the one final thing ill say is my colleagues are going to talk more about this, in particular, and the notion that there is a legal obstacle that any american case law impedes an obstruction, prosecution of the president , is sheer nonsense. Theres no warrant for that in the Supreme Court cases. If anything, morrison and olson the other cases go the other direction. Theres a long line of cases where 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 and his lawyers endorsed it, i hope i havent intruded i want to go to a former prosecutors perspective. Why is the obstruction of justice charge important for prosecutors and how do you approach such a case and what are the challenges . Thanks very much. Im honored to be here today. Thank you for the American Constitution Society for the invitation and 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 depend on people to tell the truth. Thats how the whole system works. When witness is come into court we put them under oath. When they testify before the grand jury, theyre sworn to tell the truth. When a fbi agency questions or interviews a witness, theyre told that lying to investigators is a crime. Why is that . Because we want them to be on notice that its so very important that they tell the truth and that 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. And we do that by prosecuting people who lie or otherwise obstruct justice. We intimidate witnesses who alter or destroy documents or otherwise interfere with investigations. Its critical to the integrity of our criminal Justice System. And if tying that to obstruction of justice goes unchecked. That thwarts investigations and makes investigations take longer and makes it harder for investigators and sometimes crimes remain hidden from the light of day because of the efforts to cover those up. For those reasons, they consider obstruction of justice. One of the most important things that we investigate. How dos a case get built out. How does a case arrive . It arrives as part of a 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 thats causing some conflict in the investigation and some suspicious 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 at least two, the criminal act and the criminal intent. The act is some act to instruct or impede with an investigation. Asking a witness to lie, something someone to stop in an investigation, destroying a document. The harder part of these are proving intent and as norm said, its improving that corrupt intent, that bad purpose. And one of the things that 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 so for that reason, we have to look at the totality of the circumstances to determine their intent. You should look at all of the things the person said, all. 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, the prue report does in this case, looking at all of those factors to try to glean what was a persons intent. And then, of course, federal prosecutors 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 that federal prosecutors use in the u. S. Attorneys manual 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 person culpability, the nature and seriousness of the offense. When it comes 0 obstruction of justice, it scores very high on that last factor. As i mentioned its one of the factors prosecutors consider, one of the crimes prosecutors consider the most serious because it so undermines our quest for the truth in the administration of justice. Just to give you an example. My former office handled a case recently against volkswagen for cheating on emissions standards, trying to the epa, skewing four times the legal limits on the diesel vehicles and lying about those cars by creating, designing software that could defeat the emissions test. So after an extensive investigation, volkswagen ultimately pleaded guilty to a number of crimes and paid 4. 3 billion fine. In connection with that investigation we learned 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 as a result of that. Ultimately volkswagen was charged with and pled guilty to not only 4. 3 billion fraud, but we thought it was so important to also require them to plead guilty to obstruction of justice, as a deterrent and to hold them accountable because we considered that crime to be so incredibly important. So, you can see why, for prosecutors, from a prosecutors perspective, obstruction of justice is considered one of the most important crimes we prosecute because its so important to safeguarding the Fair Administration of justice. Okay, i want to take it to jed now. Were going to get into later exactly what we know about the current mueller investigation. But just before that, just in terms of, if you are, for a special council. What options if you were to find obstruction of justice. If you were to build a case and what historic historical precedent do we have that guides us to know what Robert Mueller might do if that evidence is there . A can oomph thoughts here, one the question a lot of people were asking thank you. I was obstructing my own. [laughter] its on now. So the big question i think a lot of people are asking, can mueller bring an indictment against a sitting president . And these issues are 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, but i think its mainly functional rather than formal. It would be practically debilitating if you had a rogue prosecutor and one rogue judge, 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. Its functional not formal, but you may 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, nixon versus fitzgerald, a passage from a major commentator joseph story, which seems to indicate you cannot indict a sitting president , but whats interesting in that passage is that he does contemplate or seems to open the door to indicting a president after leaving office for his 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 could is bringing indictments against others and historical example from watergate was in those indictments as the case grows, the president can be noted as an unindicted coconspirator. Thats not an indictment against the president , but it starts to layout the facts and the potential criminal liability for the president without indicting the president himself. And there are also precedents, like the starr report in the clinton impeachment, where the investigator lays out the case, where starr laid out the case in the report and its been used by congress to draft articles of impeachment. If we want to talk about watergate in one more way, watergate was driven by joint committees and joint select committee in the end as 1973 turned into 1974 it was more driven by congress. You could have a report that leads to articles of impeachment being drafted. I think theres one more scenario increasingly important to discuss, its more urgent now given the tenor the past few days. We need to find out what would happen if President Trump tries to fire mueller. There are some standards by the doj that stand in the way and those regulations say only the attorney general in this case, acting attorney general rosenstein could fire mueller, but there are many academics and lawyers who have a theory, not a good theory, i would contend, of a total unity unitary executive to do and undo those in the executive branch and an argument they could put forward the president as the chief Law Enforcement officer could fire mueller. That would lead to litigation, over a dispute, ironic that antifraud agency of the federal government had a problem of identity theft, you know, each side was claiming the other side was engaging in identity theft. This is the question who does mueller have a job still. Should that happen, i would suggest the other avenue to discuss, 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 through a committee and whether Congress Might create a joint select committee. I want to suggest another path, its hard to rely on congress to know what they would do, given that they havent stepped forward to protect muellers job yet. What i want to suggest is that the states could step in. An attorney general of a state could hire mueller to pursue state crimes and the avenue that seems the most likely is for new York Attorney general eric snyderman, looking into trafficking in stolen goods 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 state criminal liability with respect to the risk of 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 an and with the caveat, what he ever we know, Robert Mueller and his team know more. 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 a 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 and after that 18days that President Trump had with james comey about possibly letting Michael Flynn go, i think happened a day or two later, i think also is probably high on that list. What is it about that 18day period or any other part in this administration from the fact 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 principal, but not the exclusive focus because in order to understand those 18 days, to the extent the press report is accurate, you need to look before them and beyond them, the 18 days rotates around these questions of what the president knew, when he knew it, and why he fired jim comey, ultimately, and the in a nutshell we know that sally yates came, that the acting attorney general came to don mcgan and indicated that the public statements that the white house was making based on assertions were not accurate. And we know that there was a direct question from the white House Counsel from mr. Mcgann about whether flynn had lied and was being investigated for that by the fbi. And that she that yates sidestepped that as is appropriate discussing an open investigation. We know that there was a conversation between mcgann and the president about all this. And it matters because if it can be shown, and we now have a tweet, of course, 18 days has been 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 being interviewed for two day by muellers team, its the pattern and mosaic that barbara was talking about. If you can show that the president knew, likely, should have known at the time he prepped comey to 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 roll over 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 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 tell trump, he has lied to the fbi agents. I dont know if either of those are the case, but those are the kind of things that might excite a prosecutor. Barb. Well, ill agree with norm that Robert Mueller now has a potential treasure trove in Michael Flynn. He knows about the conversations and what was said. And Robert Mueller would not have given him that deal, zero to six months, likely only serving probation unless he knew he had valuable information in exchange for that. And you dont give that deal until you sit down and proffer with the attorney and debrief with the defendant to understands what they have to offer. He likely has had a lot of information. And one of those questions, those 18 days are probably critically important because we at the end of that period the request for President Trump to jim comey, cant you see your way clear to letting this go, i hope you can see your way clear to letting this go. And that corrupt intent, that is so important, what did he know at that time . Did he know that flynn had lied to the fbi at that moment because he already had, did trump know that . If he did, that means he knew he was asking comey to let a crime go when he was asking him to let that 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 high levels, one very high level, one Senior Member of the Trump Transition Team who is in communication with Michael 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. Investigation . Did he 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 russians and the election that trump is trying to cover up. And if, as that circle expands, i think the evidence of corrupt intent becomes greater because it suggests not just let this guy go because hes a good guy, it is i am concerned about greater exposure for members on my team or possibly even the president himself. He and so thats why the 18 days are critical. What information did trump have and what did he know . In talking to the people in the area at the time are likely able to paint that picture for Robert Mueller and his team. Jed. I have one point about flynn and then i want to shift to another grounds, i think a very strong grounds for obstruction of justice after i note about flynn. First, i think its quite possible that the reason why theres all of this speculation about mueller investigating, because flynn may have already told mueller i was told to lie, but mueller also knows that flynn is not the most credible witness hes ever going to have. One, hes already pleaded guilty to lying to the fbi, the defense counsel will use that first and foremost to say that hes already a felon in terms of lying and then, they will 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 set up this case for mueller. So, its very important for mueller to substantiate in some or way though the witnesses hes talking to have to be quite worried why they might be lying. You cant only rely on flynn and mueller has to find somebody else, he has a lot of leverage for federal and as i said before, state liability to confirm whether or not in fact its true. Theres a strong obstruction case already based on what trump has said in public. Look at the timeline. So trump decides hes going to fire comey and he and Steven Miller, i cant wait to see the miller versus mueller showdown at some point. But Steven Miller and trump right this letter, this letter is so problematic that the white House Counsel said you cannot show that letter that letter cannot see the light of day. Theres speculation described in the New York Times as a screed, but i think theres reasonable speculation or some implications that it may have talked about the Russian Investigation as a reason why theyre firing comey. Theres a draft of that letter somewhere in a data base somewhere, and mueller will have be able to see that letter and if in fact it laid out the Russian Investigation as to reason to fire. Keep in mind many other participated in that letter, Jared Kushner allegedly participated. And vicepresident pence allegedly. And theyre also conspiracy to obstruct justice or and there might be more people facing liability that might tell the story to save themselves from that liability. A day after trump fires comey on may 9th. On may 10th in the oval office he says to two russians officials, 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. Then the next day, as if that wasnt enough trump goes on tv with lester holt on tv and tells the country, and in fact, when i decided to do it, meaning fire comey, i said to myself, i said, you know, this russia thing with trump and russia is a made up story. Its an excuse by the democrats for having lost an election that they should have won. You could interpret both of those statements immediately after firing comey is demonstration of a corrupt of corrupt intent or under the other statute obstruction, an improper purpose to shut down the russia investigation. An add to that the context of what comey described before he was fired. Add to that the tweet that we talked about, i fired flynn because he lied to the fbi lied to pence and the fbi and it establishes more to the story, but basically trump has made the hardest part of the case, establishing corrupt intent. I have a question, theres a lot of talk throughout this investigation about collusion, which we know in itself is not a crime, but there are other crimes, conspiracy i guess would be the closest i think this to that and other things, but if thats the basis of this investigation and there is no clear evidence of an underlying crime can a prosecutor still bring an obstruction of justice crime by itself . I can start on that one, 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 forseeable in the future. If you have the access and m echlt sche sch mensrea. In my direct we had a hate crime where a group of men set fire to the home of a family, an africanamerican family who moved into a white neighborhood. They were suspected of committing this crime, but we couldnt make out the crime, but we knew that they were providi providing inconsistent stories and one was lying. We were ultimately able to flip him, get him to cooperate to provide additional evidence that was able to prove the underlying case. Not only charged alone, but frequently be used as a tool to reach the underlying criminal conduct. What about expressions of im going to ask two questions and anybody who wants to join us, 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 toll him that he hopes that 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, there specifically there are cases we talk about them in our paper where saying, gee, i hope those televisions fall off the truck, that kind of language is sufficient where the plain meaning is obstructive. And otherwise legal conduct, theres a long list of cases across the country, the matter has been litigated, this argument, gee, because 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 norm eisen as an attorney have the authority to issue a subpoena to somebody in a pending matter, but if i did with corrupt intent, im thinking of the 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, the notion this is a totally made up its abhorrent to american law and its 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. It seems like youre saying that the power that the person has is a crucial element to this, i mean, in the case of a sheriff or an attorney and certainly president . It has been abuse of that power has been in case after case after case. Thats not to say, i should say, that evidence goes to jed so were just not all agreeing with each other. That is not to say that its an easy case. Whenever theres and this, i think, is why flynn may be so important to making the obstruction case because its you know, 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. Is much easier to explain why if the facts layout this way, you tell somebody to lie about the instructions that were given to talk to a foreign ambassador or not cause its embarrassing. In order to protect that person, you try to get an investigation dropped. Putting a human face on it is an easier thing to explain to a jury, easier to get a conviction than a more abstract considerations of the russia investigation particularly if it turns out that complex foreign, somewhat nebulous, in the president s Foreign Policy powers, ultimately involves a lack of collusion, a lack of any real proof that there was a causal relationship between russia in the election. How come. So, the helping a friend in order to spare yourself 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 even if theres good evidence, theres guarantee its going to pass the prosecutorial sniff test, particularly with muellers very principled and this would be true. And i had a defendant that i cut a plea deal for, his office when he was u. S. Attorney in san francisco, a tough, long negotiation. But when its a sitting president , youve got to admit it, its a higher bar. Sure, i think this conversation touches on the way the debate about this unitary executive has shifted. Potentially the firing of comey and potentially the firing of mueller, the debate among some defenders of president ial power, or defenders of trump, trumps own lawyer, says a president can never obstruct justice. Theyve made this forceful argument a little like when nixon said if the president does it, that means its not illegal. Fortunately, i think those lawyers have all backtracked from that stretch of an argument, but what theyve ba backtracked to a draw back, the president cannot be charged with a crime for merely exercising his authority under article 2. Article 2 of the constitution is the executive branch. Includes firing the director of the fbi for whatever reason or no reason. And he goes on to say, so, until and unless there is proof that trump has committed an independent criminal act, Something Else other than firing, beyond acts within his constitutional prerogative, it would be unconstitutional to charge him with obstruction of justice. Because the constitution gives the president enumerated power the president has limitless discretion however he wants or she wants to use the power, corruptly or noncorruptly to use at that power. And you need some other crime. And theres an exchange that highlights that argument. Another argument that andy graywall was involved in a debate about this and someone challenged him and said i understand your theory of legal analysis, does it is it, even in acceptance of a bribe . Acceptance of a bribe is not an official act. The other commentator says if the bribe is conveyed by an official act. You dont have to pay a bribe to commit bribery, its the agreement to do so. And without a side deal i dont see why would be specific to a bribe. Let me open the door to why its flawed and i can give you a hypo and imagine some billionaire sent a coded message to the president and the 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 or any other message back. The only thing the president does is he pardons the cousin or he fires an official or fires an official and nominates the cousin. The only thing that the president has done is the official duty under article 2, hes executed, 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 send a spend a Million Dollar in independent advertising for my reelection campaign. There would be no legal for that you could have 34 senators that could block it and 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 possible instruction of justice, the act of using an official constitutional power can be both the act, it can be the only act that demonstrates an actual act demonstrated by the president under criminal law and it can be reflective, evidence of the corrupt intent. Because of that, that hypothetical, i think that demonstrates that an official act by a president , even if its constitutionally delegated to the president , could still be the execution of some felly. 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 vicepresident. What then . Can he prosecute them . Well, i said before, that he would my view and i think that its 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 vicepresident , right . So, other foreclosures besides the president could face indictment the same way that weve seen indictments of manafort and popadopolous and flynn, we could see that now in other cases. I think the bottom line, the right way to proceed historically based upon the constitution, is by impeachment and removal and then there might be indictments, they might not be. Id also say here, that given how impeachment and removal go, it may be perfectly reasonable for trump to have his own gerald ford, in the same way that ford pardoned nixon, i think that history has been kinder to fords decision to pardon nixon than there was at the time where it was more controversial. I dont think that we need to chant lock him up in this room. I dont think thats the right resolution. I think that we need justice and accountability and impeachment can bring that out, but we dont necessarily need prosecution. Ill jump in here, norm wants to answer because his paper does a great job of laying this out. On 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 through its office of Legal Counsel gave an opinion during the watergate era on obstruction, instead impeachment. I would recommend that that Robert Mueller 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 question, but i see that the senator is here, so im simply going to point to 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 for the flaws and the reasoning of the opinion. 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 from acs to introduce the senator. Thanks, kim. Good afternoon, my name is cara stein and im from the American Constitution Society. Its my honor to introduce a great friend to acs and all those who care about democracy. Senator Sheldon White house. He served as an attorney general and attorney general of rhode island before being elected in 2006. Hes a leading advocate to protecting justice and stallwart critic of influence of money on our politics. His recent book captured the intii infiltration and how the government is beholdened to special interest and hes the Ranking Member on the Senate Subcommittee on crime and terrorism which has been central to the investigation of russian interference in the 2016 election. Please join me in welcoming senator whitehouse. [applaus [applause]. Thank you for inviting me. Its a pleasure to be here and im a great admirer of acs and panel here. I would like to make three points. The first is that i am of quite firm view that the presidency does not confer upon its occupant immunity from prosecution. The best case that can be made because the constitution specifically provides the target of impeachment can be indicted and prosecuted, indeed instructs thats the case, so, as one commentator pointed out, the question is not whether, but when. Given just the practice of investigations, 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 neverneverland in which you have grand jury activity protected by rule 60. You have no real means for getting the 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 that the grand jury votes on and thats how it becomes public and that would be the moment when i think the congress would have something to consider in terms of impeachment and you may want to have a situation in which the special counsel and the Congress Work together and make sure one isnt bumping into the other, but it seems to me a real stretch that immunity from criminal prosecution is conferred about the president. If you were to murder somebody, it would seem to me that the course of justice require that he be charged and the charges pursued under proper course of law and to take that away when we have a vicepresident 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. He think its a stretch. The second point is that i think we have to be alert to a very conspicuous campaign being fired up through the right wing media thats moving from the farthest extremes more towards the center to try to deprecate bob mueller, that the president can obstruction of justice. If an indictment is reached he should be held accountable and so forth. I think we have to be very, very watchful about this because it has all of the hallmarks of propaganda and manipulation rather than genuine expression of opinion. When you line it up against some of the other traditional benchmarks and referees that are deprecated and attacked 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 to its logical conclusion, that ends checks and balances and that ends the Important Role of the Fourth Estate and 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 that id like to make and my final one veers a little away from obstruction of justice and steps back to the russia, trump investigation 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, no, that was a one off. Weve got them on the run now, its not going to happen again. Every single witness has said, nope, theyre coming back and you can bet on it. Theyll be back in 18, back in 20 and they dont mind very much being caught because theyll show as players and meddlers and 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. The very clear advice is that putins interference in our democracy or anybody elses for that matter, whether its the grand ayatollah from iran or whether its from china are or whether its from 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 who is 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 to specifically Campaign Finance machinations that allow money to turn into dark money, turn into perhaps foreign influence, it also refers to shell corporations and the entire apparatus of anonymity that supports putin and his clep cleptocrats, and their money, rule of law in territories and find the safety and security of rule of law for their illgotten gains, but it also allows them to launder malevolent and malicious activities through one, two, three, you can stack shell corporations and hide the hand of Vladimir Putin behind things that look potentially benign. So two very important policy goals that are clearly, 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 really good for us as well, and they put the other 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 Koch Brothers mess in our electionings. How the m mercers mess in our elections and exxonmobil. And it will blow up donor trust that exists for the sole purpose of laundering the identity of big donors who want to influence politics and policy. And were the shoe on the other foot, you can bet this would be an absolute republican priority where they could line up national security, the patriotic interests we have in free and Fair Elections and cleaning up a mess that is of enormous benefit to the democratic party. They would be beating us up about the head and shoulders every single day and we need to make sure that we can do this right because its the acme of weakness to be unable to take advantage of a moment like this where the interests of our party and our democracy and our country are all exactly aligned. What can you do . Probably the most important thing would be to either make it public so that it came to the attention of special counsel or to communicate it to special counsel privately so that they could have a chance to voice whether we should reveal or not reveal something that we know. One of the things we dont know and should not know is who special counsel is running right now. We did not know about his corporation until the plea agreement was revealed although the plea agreement with mike flynn cast some bright light on him for the trump team to stay away from. It is possible that he had assembled information on his own early on without Cooperation Agreement is to have material to work with. He may have recorded calls, who knows what and there may be others out there who are presently unknown to the Trump Organization who are gathering information and property with witnesses. The last of we would want to do something that came up in the senate which would be something that was ongoing. Prior notice to special counsel and what we plan to do would be an appropriate courtesy and we could make the decision if we should go forward because ultimately the senate has just as much right to go forward to do whatever it wants even if it inconveniences special counsel but you dont want to inadvertently interfere with that investigation. If our equities and priorities are such that its an inconvenience to special counsel, it should go ahead, thats additions and to make. Go ahead and do what . What would you do . Have public hearings for the record so that depending on how far away you could have both Public Awareness of what was going on and potentially it adds to the battery of evidence for the house to take up an impeachment resolution. Okay. We have time to ask you one more . Sure. I always invite people we leave this program at this point as we had live with during on Mental Health care for the senate health