Former U.S. Assistant Attorney General For National Security Discusses Mueller Report
AILSA CHANG, HOST:
Barr's choice of words during that press conference has already been criticized by some for being too defensive of the president. I'm going to bring in David Kris now. He was assistant attorney general for national security during the Obama administration. welcome.
DAVID KRIS: Thank you. It's a pleasure to be here.
CHANG: So what do you think - has Attorney General Bill Barr been generous to the president? We just heard him say he hasn't been.
KRIS: I think he was generous to the president in the way he characterized this. I mean, it is a long report. And there is always a question of judgment in picking out what you're going to emphasize in a short oral statement or a short letter. You always have to include certain things. You always have to leave certain things out.
But I will say that having heard General Barr this morning at the press conference, having read his prior letters, when I sat down actually to read the 448-page report, I found myself a bit surprised by what I was reading measured against the expectations that I had set from listening and reading Mr. Barr's prior words.
CHANG: Interesting. I want to address the question of obstruction of justice. Mueller's report noted that building an obstruction of justice case against the president was difficult, in part because Trump had the authority under Article 2 of the Constitution to take many of the actions that were investigated, such as firing former FBI Director Jim Comey.
But let me ask you this - even if the president had the constitutional authority to do something, if he's doing it with a bad intent, couldn't he still be accused of trying to obstruct justice?
KRIS: I think many people believe that. To give you an imperfect analogy that may still help a little bit, you know, you have every right under the First Amendment to free speech and to write notes on paper. But if you write a note on a paper that says, give me all your money or I'll shoot you - and hand it to a bank teller, well, that's a crime.
And so in the area of obstruction, you may have authority to do certain things as president or as a private citizen, but if you do them with corrupt intent, there are a lot of legal scholars who think that that's very problematic. And I think that that theory, as far as I could tell, was not one that Mueller rejected. It may be one that Barr rejected. And it certainly seemed to be a theory that the president's lawyers had rejected.
CHANG: I want to get into something you mentioned. You said you were surprise after reading portions of the report in the way that Barr framed what the report was going to tell you. Tell me in what ways you were surprised.
KRIS: The most surprising thing to me was that I understood from Barr's statements that Mueller had declined to reach a judgment of criminality with respect to obstruction of justice. That is he just didn't decide whether what the president did was a crime. That's quite separate from whether he can be indicted for reasons, as I understood Barr to characterize it, that were distinct from the DOJ policy against indicting a sitting president.
But when I read the report and I read Mueller's explanation, what I thought he was saying was given the rule against indicting a sitting president, we're not going to pass on the question of whether he committed obstruction of justice because the president would essentially be deprived of the right to defend himself because we can't indict him. So he would not have his day in court to prove his innocence in a jury trial. Therefore, because of that, we don't want to be unfair and make a judgment of criminality. Well, that's very connected.
KRIS: And I was surprised at that, given the way Barr, I thought, had characterized it.
CHANG: Now, Democrats have long been saying that they want to see not only a totally unredacted version of the report, but they also want to see all the underlying evidence. As a lawyer, do you think that request is reasonable, demanding so much of Mueller's work product?
KRIS: Well, the attorney general has already said at his press conference that he's going to give at least some bipartisan members of Congress a much more complete version of the report, limited only by the grand jury redactions.
KRIS: And that may be in the ballpark of half of the total set of redactions. So, for one thing, he's going to give them more than he's given to the public.
CHANG: Right, but the underlying evidence. What do you think?
KRIS: The underlying evidence, I mean, we are in a very unusual posture here already. But I can understand why Congress wants to see the underlying evidence. Mueller's report goes out of its way to say that it itself, even the 448 pages, are just a summary of all the evidence that they encountered. You know, there are some limits there. And I don't know what Barr is going to do on that front. But I can certainly understand why Congress wants to see it.
CHANG: David Kris is a former assistant attorney general, and he's founder of Culper Partners. Thank you very much.
KRIS: My pleasure.
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