Is Mueller report a ‘final determination’ or an ‘impeachment referral?’

JUDY WOODRUFF: And we turn now to why Robert
Mueller chose not to subpoena the president
to testify and more.
For that, I’m joined by Robert Ray.
He was independent counsel during the Whitewater
investigation into President Clinton.
And Garrett Graff, He’s a contributor to “Wired”
magazine and the author of “The Threat Matrix:
Inside Robert Mueller’s FBI and the War on
Global Terror.”
Hello to both of you.
Thank you for being here.
I want to get to the subpoena question, but,
first, I want to ask you about the — what
Mr. Mueller did in trying to determine whether
there was obstruction of justice.
Robert Ray, the president — investigator
— rather, the investigators, including the
special counsel, clearly spent a lot of time
looking at what the president did.
And we learned that he asked, on a number
of occasions, people who work for him, the
White House counsel, other advisers, to go
and either ask the attorney general to resign,
to step down, or to stop the work that he
was doing, to — tried to get Mr. Mueller
to stop what he was doing.
How do we read that?
And how do we read that as not obstruction?
ROBERT RAY, Former Independent Counsel: I
think, at one level, of course, most of what
you refer to, we already knew about.
I mean, none of that really is new.
And much of it, also, was out in the open.
I suppose one way to read it is that the system
worked, and the president was well-served
by, among others, his White House counsel
and several other individuals who knew better
than to involve themselves in what potentially
could well have amounted to their efforts
to obstruct justice.
And, you know, I think we depend, in a democracy
and an executive branch, where, while the
president is the head of the executive branch,
we, in that democracy, depend on the fact
that the people who are in positions of authority
and surround themselves with the president
ultimately do the right thing.
And, in many instances, I think what we saw
is that that’s exactly what happened.
Now, how does that — your other question,
how does that bear on obstruction of justice?
I think that I — you know, despite much commentary
and criticism of the attorney general, ultimately,
it was left to him, as both a matter of law,
facts and, more importantly, policy, how to
apply the obstruction tactics to presidential
And it was his determination, in conjunction
with the deputy attorney general, and after
consulting with the Office of Legal Counsel,
that there was insufficient evidence to establish
that the crime of obstruction of justice against
the president had been committed.
ROBERT RAY: I believe that’s a final determination.
It’s certainly a final determination as far
as the Department of Justice is concerned.
JUDY WOODRUFF: Garrett Graff, you’re shaking
your head.
And I want you to respond to that.
But I also want you to respond to Robert Ray’s
comment that the system worked because the
people around the president refused in these
instances to carry out his orders.
GARRETT GRAFF, Contributor, “Wired”: Yes,
Mr. Ray and I have disagreed about this almost
since — the Barr’s original summary at the
end of March, which is, I have long said we
needed to see how Mueller actually framed
And when we saw the report yesterday, it’s
very clear that Mueller saw his role as prohibiting
him, under the Office of Legal Counsel existing
opinion within the Justice Department, to
— from ever bringing charges against the
And so he was not approaching this, as he
said, to come to a traditional prosecutorial
decision, and instead was gathering facts,
and that I think it’s impossible to read his
report, especially when you read the executive
summary that he wrote at the top of volume
two, as anything other than an impeachment
referral, that he never intended for the attorney
general to make a decision on this, and that
he saw what he was doing as independent fact-finding
that — in a situation where he couldn’t bring
And, in fact, he sort of goes out of his way
to explicitly say he does not exonerate the
GARRETT GRAFF: … and that this is — go
JUDY WOODRUFF: I was just going to say, quickly
come back to Robert Ray, it was — in other
words, it was never in the cards that…
ROBERT RAY: Well, that’s not — with all due
respect, that’s not what prosecutors do.
Prosecutors are not independent fact gatherers.
GARRETT GRAFF: That what prosecutors do in
dealing with a president.
ROBERT RAY: No, they don’t.
What prosecutors do — I have been one, so
I can tell you — and particularly what independent
counsel and special counsel do is, they gather
evidence, as all prosecutors do, in order
to determine or not whether or not there — there’s
a case, and whether or not a crime has been
committed and whether or not it’s worthy of
That’s what they do.
Now, in the regime that we are now in, with
the demise of the independent counsel statute
post-1999, this is the first time where he
we have proceeded down and traveled down the
road of the special counsel regulations.
And I respectfully disagree also with the
notion that this was simply an impeachment
That — that’s baloney.
There’s no mechanism for an impeachment referral
by the special counsel, as distinguished from
the independent counsel statute.
And, ultimately, it was the Department of
Justice’s call, because, after all, under
the special counsel regulations, the special
counsel authority derives from the attorney
general of the United States.
JUDY WOODRUFF: All right, Garrett Graff, I
want you to respond, and then I — quickly
come back to my earlier question.
Go ahead.
GARRETT GRAFF: Yes, I think that that’s just
not what Robert Mueller says, that he doesn’t
say that he’s leaving it up to the attorney
And I think this is going to be obviously
the first question that he’s going to face
when he goes up to Capitol Hill to testify
presumably sometime in May.
JUDY WOODRUFF: And, Garrett Graff, the earlier
point that Robert Ray made about the decision
by the people around the president not to
carry out his orders, whether it was to fire
— to get Mr. Mueller fired or to fire secretary
— or Attorney General Sessions, how do you
read that?
Was this a case of the system working?
GARRETT GRAFF: Well, the system worked, to a
certain extent, yes, in that the staff didn’t
carry out orders that could end up causing
criminal jeopardy in the obstruction case.
However, the criminal federal standard for
obstruction of justice includes the word endeavoring.
This is a situation where even simply attempting
to obstruct justice makes you guilty of doing
so, and that this is a situation where we
certainly saw the president endeavor to obstruct
justice in these 10 instances that the special
counsel outlined in his report.
JUDY WOODRUFF: And, Mr. Ray, let me…
ROBERT RAY: I don’t think that is certain…
ROBERT RAY: I don’t think that is certain
at all.
And that’s by the special counsels own acknowledgement.
And, moreover, more precisely and significantly,
the attorney general, it’s obvious, profoundly
So, applying obstruction statutes to presidential
conduct presents unique constitutional challenges,
not the least of which is that the president
is afforded sufficient latitude to exercise
his constitutional authority, including hiring
and firing, replacing people, inquiring of
the Department of Justice with regard to the
pendency of an investigation, and should be
able to do so free from quick allegations
that, at every turn, if he makes any action
or takes — or indicates any endeavoring,
as you say, that it shouldn’t be tantamount
to a conclusion that obstruction of justice
The attorney general was quite clear about
that in the period of time before he became
— before he was nominated as attorney general.
He was the subject of confirmation on that
basis, and he’s now made that call.
To suggest that somehow or another that was
an easy determination, and that there’s clear
endeavoring here, I think, is belied not only
by the report, but obviously by the attorney
general’s findings and now conclusion of that
JUDY WOODRUFF: Garrett Graff?
GARRETT GRAFF: Well, again, in the endeavoring
— and this is, again, all in the criminal
statute, and it’s written out in Mueller’s
report — that mere idle speculation doesn’t
rise to the level of endeavoring, but that
specific acts that could substantiate — that
could cause substantial action do.
And so certainly saying to your White House
counsel, fire the special counsel, telling
your attorney general to unrecuse himself,
so that he could take control of the probe
back from the acting attorney general, those
certainly could arguably be the cause — or
cause of obstruction.
And that’s precisely — again, going back
to our earlier disagreement — why it seems
like Mueller was trying to set this up for
a finding of fact in — at the congressional
level, that it’s up to the House of Representatives…
JUDY WOODRUFF: If I may, I would like…
ROBERT RAY: Well, prosecutors don’t deal — well,
prosecutors don’t deal in what is arguable.
That’s not what they’re paid to do.
JUDY WOODRUFF: If I may, in just the little
bit of time we have left, I want to ask you
both to comment on the portrait of the White
House that emerges from this, the — what
people who work for the president were telling
the public at intervals throughout all this
that turned out later not to be true, the
— frankly, the relationships inside the White
What emerges for you?
Mr. Ray?
ROBERT RAY: I think the attorney general captured
What emerged from it is that the president
was firm in his belief from the outset that
there was no collusion with Russian government
He struggled mightily in the political environment
in which he was in to try to protect the integrity
of his presidency and efforts in the political
process by his opponents to undermine the
legitimacy of his election, and to try to
do that in an environment in which personnel
decisions had to be made, leaks were happening,
and those not loyal to the president were
attempting, obviously, to impair his ability
to exercise his constitutional authority.
JUDY WOODRUFF: Garrett Graff?
ROBERT RAY: He made decisions, one of which
was to fire the FBI director because he found
him to be disloyal.
And he also suspected, probably rightly, with
the benefit now of hindsight, of leaking to
the media damaging information that, frankly,
furthered a narrative that, at the end of
the day, Robert Mueller concluded, based upon
evidence, was not sufficient to sustain or
establish, for that matter, Russia collusion.
JUDY WOODRUFF: Garrett Graff, if we could
ROBERT RAY: When you have that as a takeaway,
that’s a substantial determination.
JUDY WOODRUFF: I’m sorry to interrupt, but
we’re almost running out of time.
Garrett Graff, could you respond?
Thank you.
I think that this is very damaging portrait
of a White House that is beset by leaks, and
fundamentally disloyal to the president, that
this is sort of a mismanaged White House.
And you see that both on the campaign, and
you see that in the White House.
I mean, you see that in the first half, volume
one, of this report, in a campaign where the
president’s own top advisers were all running
their own entirely unrelated schemes and crimes
in the midst of trying to serve the president.
I mean, this is a very damaging portrait of
the president’s management.
JUDY WOODRUFF: We’re going to leave it there.
And, of course, we will continue to look at
this report in the days to come.
Garrett Graff, Robert Ray, we thank you both.
ROBERT RAY: Thanks, Judy.

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