Sorting Out Legal Questions Post-Barr Press Conference On Mueller Report David Greene talks to Kimberly Wehle, who served as associate independent counsel during the Whitewater probe, and former federal prosecutor Shan Wu on what to expect from the redacted Mueller report.
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Sorting Out Legal Questions Post-Barr Press Conference On Mueller Report

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Sorting Out Legal Questions Post-Barr Press Conference On Mueller Report

Sorting Out Legal Questions Post-Barr Press Conference On Mueller Report

Sorting Out Legal Questions Post-Barr Press Conference On Mueller Report

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  • <iframe src="https://www.npr.org/player/embed/714650885/714705173" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
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David Greene talks to Kimberly Wehle, who served as associate independent counsel during the Whitewater probe, and former federal prosecutor Shan Wu on what to expect from the redacted Mueller report.

DAVID GREENE, HOST:

We're awaiting the public release of special counsel Robert Mueller's investigation. Not long ago, Attorney General William Barr spoke to reporters ahead of the release. He said neither the president nor his campaign nor any Americans worked with Russians during the 2016 election. He also said that the president of the United States did not obstruct the investigation.

(SOUNDBITE OF ARCHIVED RECORDING)

WILLIAM BARR: After carefully reviewing the facts and legal theories outlined in the report and in consultation with the Office of Legal Counsel and other department lawyers, the deputy attorney general and I concluded that the evidence developed by the special counsel is not sufficient to establish that the president committed an obstruction of justice offense.

GREENE: Now, of course, the attorney general speaking there before the redacted report is being released to the public. And a lot of Democrats have had complaints about that, suggesting that the attorney general might be trying to set the narrative before Americans themselves and lawmakers have a chance to look at the report.

The chairman of the House Judiciary Committee, Democrat Jerrold Nadler, has released a statement. He says he wants Robert Mueller to testify in person to understand his findings. As Nadler said, quote, "we cannot take Attorney General Barr's word for it. We must read the full Mueller report and the underlying evidence."

So let's try and sort out some of the outstanding legal questions here. We have Kimberly Wehle on the line. She served as an independent counsel during the Whitewater investigation. Kim, welcome.

KIMBERLY WEHLE: Thank you.

GREENE: And Shan Wu is with us as well. He's a former federal prosecutor who briefly represented Rick Gates, who was a business partner of President Trump's former campaign chairman Paul Manafort. Welcome.

SHAN WU: Oh, you're welcome, good to be here.

GREENE: Kim, I want to start with you. One of the questions that stood out to me was this question of obstruction of justice. And the attorney general was talking about President Trump's mindset when this investigation was going on, saying that he was, quote, "frustrated and angered." He sincerely believed that this investigation was undermining his presidency. What might that mindset have to do with the legality here?

WEHLE: Well, I think, overall, Mr. Trump got his kind of right-hand man attorney general. He's been frustrated that his prior attorneys general, Mr. Sessions as well as the deputy, Rosenstein, have not really had his back and been his advocate. And I think, today, what we saw is Mr. Barr is stepping into that role.

There are two issues with respect to obstruction. One has to do with the legal standard. And I think in rereading his June 2018 memo that he provided to the White House prior to becoming attorney general, it was clear he seems to believe that obstruction can't happen unless you actually obstruct an underlying crime versus just the investigation. And here, he seemed to believe that since there was no underlying collusion, his position is there can't be obstruction.

That's not a clear line drawn in the law. The law doesn't like if you just obstruct an investigation full on. The other piece, as you mentioned, he does talk about Mr. Trump's feelings. And to obstruct an investigation, you have to knowingly do it. You have to do it on purpose. And here, he says he had a sincere belief that there was an illegal basis, that this was based on political opponents.

The unfortunate piece on that is, at the same time - and I think it's very important - Mr. Barr came out at the beginning and said, listen, the Russians attacked our electoral system. It was a very serious attack on our electoral system. So to suggest that, somehow, the investigation was - it had an illegal basis, that's a bit unfortunate.

I mean, at the end of the day, Mr. Barr gave one side of the story, and there's always two sides. Certainly, in 400 pages, there will be two. And it's really important, then, that everyone read the entire report and make their own determination as to what pieces of information on the other side are important in the next election frankly and when we vote in November 2020.

GREENE: Shan Wu, if you were pursuing a potential obstruction of justice charge, is the mindset of someone important? Would that play a role in deciding whether or not there was a potential crime committed?

WU: It certainly is. You need to look at their intent. And, of course, intent is not always easy to discern. You have to look at the circumstances. And ideally, Mueller would have had a chance to speak with the president. But the president's lawyers, I think, very cleverly made sure that that didn't happen.

And I very much agree with Kim's comments that Attorney General Barr really showed a lot of transparency. I think what he was transparent about is just how much he's motivated to protect the president. He portrayed the president, essentially, as a victim. And of course, you know, his choice of words to say that the president had a sincere, quote, unquote, "belief that this was unfair," that, of course, completely begs the question - I mean, if you believed he sincerely felt it was unfair, then obviously he was not really trying to obstruct justice. He was just a man with hurt feelings over a false allegation.

So it was a fascinating display of a complete PR spin on the part of the attorney general. I thought the only real new things that we learned was there appear to be about 10 separate instances, scenarios, where Mueller examined them more closely to look at obstruction. And we'll be curious to see just how much of those details we get from those 10 instances.

GREENE: Let me turn to the other big question here, which was the question of collusion - again, the attorney general saying that there is no evidence of anyone in the Trump campaign - no Americans, actually - working with Russia. But he talked about that military intelligence from Russia was involved in transferring information to WikiLeaks. And he said that no one involved in the Trump campaign was involved in any illegal dissemination.

Does that mean that we might read this report later today, and it's possible that people affiliated with the campaign could have disseminated information but it wasn't breaking the law, Kim?

WEHLE: Yes. I think that's another, as we would call, loophole in what - that lawyers can read into what Mr. Barr said, which is that - I mean, remember, Mr. Trump, in a very timely fashion - in an oddly timely fashion, publicly said WikiLeaks, are you listening? And then the information that was hacked shortly thereafter was made public with respect to Hillary Clinton. And what Mr. Barr said is the key to a crime in connection with that is to be involved in the actual hacking.

So it looks like there wasn't any evidence that Trump or the people in the Trump campaign actually participated in illegally hacking the servers. And there's also a kind of overarching First Amendment question with just whether disseminating information, period, would ever be illegal or what the circumstances under which it would be legal - that would be a higher bar because of the First Amendment.

So again, this is threading a very, very fine needle that I think lawyers can understand because there could be - and there probably is - we already know there's over 100 contacts - there could be problems here but they'd be political ones, not legal ones.

GREENE: Shan - with just a couple of seconds left - the White House apparently reviewed this, which has angered Democrats. But Barr is saying that that was only to see if there was an issue with executive privilege. Is that a fair point?

WU: It's very clever on Barr's part because he uses executive privilege as a mechanism to share a material that otherwise you would never share with the subject of a criminal investigation. Yet, at the same time, he also says, oh, we're not asserting it. So he used that as a mechanism. That was clever. I think it was rather inappropriate in the circumstance, depending on how much substance was really shared.

GREENE: Shan Wu, former federal prosecutor. And Kimberly Wehle, who was an independent counsel during the Whitewater investigation, also advised Hillary Clinton's 2016 campaign. Thanks to you both.

WU: You're welcome.

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Correction April 18, 2019

In this story we say Kim Wehle worked for Hillary Clinton's 2016 campaign. She did not ever advise that campaign.