Can the Justice Department release the full report from special counsel Robert Mueller? What are the main takeaways from what we know of the report so far? Will the left have any basis to keep up the Russia collusion allegations? John Malcolm, a legal expert at The Heritage Foundation, joins us to discuss. Read the transcript, posted below, or listen on the podcast.
We also cover these stories:
- Sen. Lindsey Graham, who chairs the Judiciary Committee, is now calling for added scrutiny of the FBI and Justice Department.
- Michael Avenatti was arrested and faces charges related to extortion and fraud.
- The president of the Southern Poverty Law Center, Richard Cohen, has resigned.
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President Donald Trump: It was just announced there was no collusion with Russia, [which was] the most ridiculous thing I’ve ever heard. There was no collusion with Russia. There was no obstruction and none whatsoever, and it was a complete and total exoneration.
Kate Trinko: That was a rather happy President Trump on Sunday, and joining us to discuss the infamous release of the Mueller report is John Malcolm, vice president of the Institute for Constitutional Government and director of the Meese Center for Legal and Judicial Studies at The Heritage Foundation. John, thanks for joining us.
John Malcolm: Great to with you.
Trinko: First off, should the Mueller report be released in full, as many are calling for?
Malcolm: Everybody would like to see it released in full. I’m sure the president [would], really everybody. The problem is that Attorney General [William] Barr has certain legal prohibitions that he has to attend to, so a lot of the material that special counsel Bob Mueller got, he obtained pursuant to grand jury subpoenas. Grand jury material is supposed to remain secret.
There are also departmental policies that say when you investigate somebody and ultimately decide not to charge them, that you’re not supposed to somehow tar and feather them in a report when they’re not going to have an opportunity to rebut those charges.
Also, when witnesses come forward, we want to encourage their cooperation and if they don’t end up testifying in the court of law, you’re supposed to try to protect them.
That having been said, General Barr has said that he is going to air on the side of transparency. I have every reason to believe that he will do so. So I’m sure that right now, he is working with the special counsel to try to figure out as much as possible what can be disclosed and what must remain hidden.
Daniel Davis: So walk us through the key findings of the report.
Malcolm: All we have is the summary that General Barr has provided, but there are several things that I think are important. First, before you get to the report, on Friday, when he notified Congress that he had received the report, he also said that pursuant to regulation he had to tell Congress whether the attorney general had at any time overruled the special counsel in terms of whether or not to pursue any matter.
He made it very clear that neither he nor [former Acting Attorney General] Matt Whitaker nor [deputy Attorney General] Rod Rosenstein had in any way, shape, or form overruled anything that Bob Mueller wanted to use. So no obstruction of that investigation from the Department of Justice and special counsel was allowed to go wherever it is he wanted to go in terms of conducting his investigation.
In terms of the summary that was provided to the Senate and the House [Sunday], there’s three major conclusions. The first is that the Russians definitely attempted to interfere with the 2016 elections. Special counsel Mueller has already indicted, I think, 26 Russian individuals and three Russian companies.
They did this in two different ways, one is they hacked into various severs, including at the Democratic National Committee. Then through intermediaries leaked that material, primarily through WikiLeaks.
The other way they attempted to interfere with the investigation was by using social media to engage in a disinformation that was designed to sew distrust in the results of the election. And actually might have succeeded better than they had hoped.
The second thing that special counsel Mueller concluded was that there was no credible evidence that anybody connected with the Trump campaign had conspired with or coordinated with the Russians, in terms of doing any of the dirty things that the Russians were doing in relation to the 2016 election.
The third conclusion was that the special counsel, rather than reaching a conclusion or making a recommendation on alleged obstruction of justice by President Trump, decided in his report to lay out all of the pros and cons, the facts that might support charges and that would cut against bringing charges.
Bill Barr said that a lot of these actions, tweets, and comments were all things that were already public and had been dissected already. And what he said was, after looking at all of this and consulting various officials from the Department of Justice, looking at charging guidelines, he and Deputy Attorney General Rod Rosenstein had come to the conclusion that there was not a case that could be brought against President Trump for obstruction.
He made a point of saying that he did this acting under the assumption that one could indict a president even though there are departmental guidelines that say that federal prosecutors can’t indict a sitting president. But he set aside that constitutional question, and said just on the facts and the law that he didn’t think that charges could be supported.
I actually think that that is a pretty reasonable conclusion for really one reason. Which is, not everybody, but the overwhelming majority of people who do attempt to obstruct an ongoing investigation do that because they know that they’re very guilty of the charges that are being investigated. So they’re doing what they can to disrupt that investigation.
In this case, the conclusion was President Trump hadn’t engaged in any criminal conduct, neither himself nor anybody connected to his campaign in terms of the collusion allegation, and therefore it made it less likely that you would attempt to obstruct an investigation in which it was highly likely that you were going to exonerated.
Trinko: So the left has already seized on this third point pretty hard, and they’re suggesting that perhaps Barr did not come to the right conclusion, perhaps Trump should face charges for obstruction of justice. Is there anything they can do besides just rant about this? I assume as long as the DOJ is under a Trump pick, there’s no path there.
Malcolm: Yes, certainly in terms of formal criminal charges being filed against the president, there’s very, very little that they can do. However, they are playing to a different court, which is the Democrats are to some degree playing to the court of public opinion.
And I don’t think there’s any question that Adam Schiff on the Intelligence Committee and Jerry Nadler on the House Judiciary Committee, they’ve already issued a whole slew of subpoenas looking at every aspect seemingly of President Trump’s life and they are going to continue to beat this drum regularly and loudly.
Davis: Sen. Lindsey Graham on Monday said, “What makes no sense to me is that all of the abuse by the Department of Justice and the FBI, the unprofessional conduct, the shady behavior, nobody seems to think that’s much important. Well, that’s going to change I hope.”
Trump raised concerns throughout the entire process as to the fairness of the DOJ, the FBI, and then of course there was the recent allegation that former official Andrew McCabe suggested that he wanted Trump removed from office. Are there going to be anymore questions about the FBI and the DOJ’s impartiality?
Malcolm: Yeah. Look, he’s got a point, Sen. Graham. The House Judiciary Committee, when the Republicans had the gavel, were looking into all of these matters.
They had Bruce Ohr, Andy McCabe, Peter Strzok, Lisa Page, and Jim Comey, they were all paraded in front of the House Judiciary Committee, but now of course the gavel is controlled by the Democrats. However, I would note that Sen. Graham controls the gavel for the Senate Judiciary Committee, so I’m sure he is going to look into that.
The Department of Justice’s inspector general has been looking into these matters. He issued a scathing report about former FBI Director Jim Comey’s conduct. There are more reports forthcoming.
He’s been investigating whether the FISA process, the Foreign Intelligence Surveillance Act process, was abused by the use of the so called Steele dossier. He’s continuing his investigation into whether or not the FBI was politicized, and whether it botched the investigation into the Clinton email servers. Perhaps he’s looking at their investigation into the Clinton Foundation.
A criminal referral has been made on Andrew McCabe for lying to the FBI, to the D.C. U.S. Attorney’s Office. The U.S. attorney there, Jessie Liu, is, I’m sure, still looking into those matters.
So, Lindsey Graham is right that perhaps they’re not looking as closely as they should at these matters, but there are some people who are looking into these matters. And I’m quite sure that under his chairmanship, the Senate Judiciary Committee will be doing likewise.
Trinko: Do you think this report was comprehensive enough that its questions will largely not be questioned, for lack of a better synonym, any further? Is this sort of it when it comes to the collusion narrative?
Malcolm: Well, I haven’t seen the report, of course, but I know Bob Mueller, and everybody knows his reputation. He was at this investigation for two years. It had been widely reported and criticized by people on the right that a lot of the people whom he had working for him, very seasoned department professionals, but a number of them had given to Democratic candidates and certainly were not somehow in the tank with President Trump.
The letter of transmission that General Barr sent said that the special counsel, in completing in his investigations, employed 19 lawyers. They were assisted by approximately 40 FBI agents, intelligence analysts, forensics accountants, and other professional staff. They issued more than 2800 subpoenas, executed nearly 500 search warrants, obtained more than 230 orders for communications record, issued almost 50 orders authorizing the use of pen registers, made 13 requests to foreign governments for evidence, and interviewed approximately 500 witnesses.
Bob Mueller is a seasoned and dogged prosecutor and an investigator who is going to leave no stone unturned. I have no doubt he conducted an incredibly thorough investigation. I can say with a high degree of certainly that Jerry Nadler and the House Judiciary Committee are not going to uncover any facts that Bob Mueller has not already uncovered and thoroughly analyzed.
Davis: Some in President Trump’s inner circle are now kind of turning the tables and suggesting that those who initially called for the investigation, including people like James Comey, who may have implied that Trump was compromised, that they need to face questions now. Do you think that will happen and do you think it should happen?
Malcolm: I think it will happen. Jim Comey, yesterday, after Barr’s letter, posted a tweet that was really unusual. It was a picture of him standing among what looked like some redwood trees staring up.
Trinko: It was so weird.
Malcolm: It looked very bizarre. And Sen. Graham actually tweeted in response to this saying something like, “You say that there ought to be full transparency and a full airing of all this. Couldn’t agree more. See you soon.” So it certainly seems as if Jim Comey, at the very least, is going to be getting a return engagement before the Senate Judiciary Committee.
Trinko: Yeah, that picture was like the worst example of political figures trying to be hip. I could not deal with that picture.
Malcolm: I never attempt to do that kind of thing.
Trinko: Any time you need to take a picture staring at trees, don’t do it. Alright, thank you so much for joining us and explaining this, John.
Malcolm: Great to be with you.
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