Legal Perspective On Barr's Testimony NPR's David Greene talks with lawyers Kim Wehle and Shan Wu about their perspectives on the legal implications of Attorney General Barr's testimony before the Senate Judiciary Committee Wednesday.
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Legal Perspective On Barr's Testimony

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Legal Perspective On Barr's Testimony

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Legal Perspective On Barr's Testimony

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DAVID GREENE, HOST:

Attorney General William Barr, the nation's top law enforcement official, is charged with making decisions based on facts and the law not politics.

RACHEL MARTIN, HOST:

This morning, Barr decided not to appear for a second congressional hearing to testify on the findings of Bob Mueller. House Judiciary chairman Jerry Nadler, a Democrat, had this to say.

(SOUNDBITE OF ARCHIVED RECORDING)

JERRY NADLER: And, yes, we will have no choice but to move quickly to hold the attorney general in contempt if he stalls or fails to negotiate in good faith. But the attorney general must make a choice. Every one of us must make the same choice. We can stand up to this president in defense of the country and the Constitution and the liberty we love or we can let the moment pass us by.

MARTIN: Yesterday, Barr did testify at a Senate Judiciary Committee hearing. Democrats there said Barr mischaracterized Mueller's findings to protect the president.

GREENE: Now, Barr, for his part, not only defended himself. He went after Mueller's team. He criticized a letter Mueller sent to Barr objecting to how he summarized the findings.

(SOUNDBITE OF ARCHIVED RECORDING)

WILLIAM BARR: The letter's a bit snitty. And I think it was probably written by one of his staff people.

MARTIN: We thought that we would hear more today, but now we await the next move from House Democrats.

GREENE: So much to talk about here with our legal experts. Kimberly Wehle was an associate independent counsel during the Whitewater investigation. And Shan Wu is a former federal prosecutor, who briefly represented Rick Gates, who worked with President Trump's former campaign chairman, Paul Manafort.

Welcome to you both. Thanks for coming back in.

SHAN WU: Oh. Thanks for having me.

KIM WEHLE: Morning.

GREENE: Kim, so Democrats are furious about Barr making a very quick decision that he would not charge the president with obstruction of justice. Did he make a compelling case for that decision yesterday?

WEHLE: Well, it's unfortunate that we're in this posture where Mr. Barr's made a determination to, basically, split the Justice Department as between himself and the special counsel, so he's putting them on the other side of the ledger here. And we're in a dispute that really was unnecessary. So he kind of made a very fine-tuned, theoretical, constitutionally fraught case for obstruction of justice - or not obstruction of justice - that really bears on whether the president himself could ever be charged with obstruction of justice because he is kind of a unicorn in that he's in charge of the Justice Department.

So the idea is if he fires people - prosecutors that are prosecuting or investigating him - for a reason other than some nefarious reason, then it can't be obstruction. That's a very circular argument. It's not necessarily illegal. But I can understand the frustration from Democrats, especially given what was in the actual report with respect to obstruction, where there's tremendous amount of evidence that bears on that question.

GREENE: Well, let's listen to some of this exchange from one of those Democrats, Kamala Harris of California.

(SOUNDBITE OF ARCHIVED RECORDING)

KAMALA HARRIS: But it was you who made the charging decision, sir. You made the decision not to charge the president.

BARR: In a pros memo and in a declination memo...

HARRIS: You said it was your baby. What did you mean by that?

BARR: It was my baby to let - to decide whether or not to disclose it to the public.

GREENE: That was quite a back and forth between Harris and the attorney general. The senator kept pressing him on how he could make this decision - among other things - without personally reviewing Mueller's evidence. Shan Wu, is that acceptable practice? I mean, could Barr come to a charging decision if he didn't personally review the evidence himself?

WU: Really, he should not be able to come to a charging decision without reviewing that evidence. But I would stress - having worked at that level at the department in counsel to Attorney General Reno - it's very rare for the attorney general and their staff to make that kind of a charging decision. Usually, you are reviewing what has come up to you from below. And in this case, had he simply reviewed Mueller's report, he would not have made a charging decision because Mueller did not make a charging decision on obstruction. And it's my view he should have just honored that. He makes a big deal out of saying, it's my baby. But he wants to say that the baby part is only as to the public disclosure. Really, the baby part was him reaching out unnecessarily to clear the president. He also talks a lot about how we're not in the business of exoneration, yet he repeatedly uses the term falsely accused. And falsely accused sounds a lot like exoneration to me.

GREENE: So I want to move on. But I just want to make sure what I'm hearing from both of you. He did not do something illegal, in your minds, by making this decision. He did not do something, like, grossly out of the bounds of the process. But he didn't need to do this. And there's a reason you think the Democrats could be really suspicious here about why he decided to make that decision so quickly.

WU: I think that's right...

WEHLE: Well...

WU: Go ahead, Kim.

WEHLE: Go ahead. Well, I think of it sort of as, you know, parents delivering bad news to a difficult child. It's better if you do it as a unified force. Then there's buy-in. There's legitimacy. And I think, of course, what he did was within the outer bounds of what an attorney general could do. But it's really, really unfortunate because if he had stood behind the special counsel, spoke with a unified voice, the public could look at the facts and the law and the neutrality of Mr. Mueller. And we all, as a country, could buy into or see this investigation as something to stand behind because the real takeaway is - and some of the Senate Republicans got to this yesterday - is that the Russians attacked our election. And they're doing it again. They're doing it in November 2020. And if we weren't sort of on this sideshow with this infighting, the Justice Department could stand together with the national security apparatus and fight that very, very serious problem that this country is facing.

GREENE: Shan Wu, I suppose we might see Robert Mueller have his chance to clear things up, in a way, if he testifies. Are we going to see that? And how important would that be to kind of the process and sort of the credibility of the process, as Kim was talking about?

WU: I think that would be very important for us, to hear from Mueller. I don't think he is a person who wants to grab the limelight - he's not a grandstander. But he's not going to shy away from it. And he has the gravitas, he has the experience to testify accurately, I think, and concisely. So I think that would be very valuable, particularly to hear his version of that conversation that followed up his letter complaining about the way the attorney general had summarized the report findings.

GREENE: All right. Kimberly Wehle and Shan Wu, thank you both so much.

WU: Thank you.

WEHLE: My pleasure.

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