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Mueller's Testimony Did Little To Simmer Tensions Between Democrats And GOP


Robert Mueller's testimony on Capitol Hill yesterday did nothing to ease tensions between Republicans and Democrats. If anything, it only highlighted their differences. Republicans kept asking about the origins of the investigation into Russian interference in the 2016 election, and some Democrats struggled to pry any information from the former special counsel that would bolster a case for impeachment.

For some perspective on all of this, we're joined by Kim Wehle. She's a former federal prosecutor. Good morning.

KIM WEHLE: Good morning, Noel.

KING: And NPR justice reporter Ryan Lucas is also with us. Good morning, Ryan.


KING: OK, so, Ryan, did Robert Mueller provide any new information yesterday that Democratic lawmakers could use to fuel a case for obstruction of justice?

LUCAS: The short answer to that question is no. Mueller largely did what he promised he would do, which is limit himself to his report. But these hearings really weren't about new information so much as bringing the information that's in the report to a wider audience, trying to make more Americans aware of what investigators found about Trump's efforts to impede the investigation.

And Democrats want to do that because in Congress, building a case against the president and the ultimate question of impeachment is a political question. And that, of course, involves getting the public behind it.

KING: OK. Kim Wehle, Robert Mueller said yesterday what he said in the report, that the president was not exonerated by his report. On All Things Considered last night, President Trump's personal lawyer Jay Sekulow was asked by our colleagues about that, and here's what he said.


JAY SEKULOW: Prosecutors don't exonerate. And I will say something. I appreciate the question because this whole issue of exoneration, frankly, is absurd. I think this was a mistake that they put - that somehow got through their editing process because a prosecutor has no authority to exonerate. You're innocent until proven guilty.

KING: OK, a prosecutor has no authority to exonerate. You're innocent until proven guilty. Does he have a point there?

WEHLE: Well, the term exoneration is not a legal term of art. But this isn't a typical prosecutor. Robert Mueller has this OLC memo, and his - the person he was investigating, the president, is uniquely situated to avoid or be immunized from prosecution. So the question that he raises essentially in his report is whether Congress is going to make a determination that there's sufficient evidence of obstruction of justice or other kinds of crimes or wrongdoing to justify impeachment. No other person in the regular private sector - no person in the private sector would be subject to that. So it's not really a big issue here. I think Mr. Mueller walked a very, very fine line. We can disagree as to whether he should actually have made a determination on obstruction, but he did that, frankly, in fairness to the president.

And the other - the question of a presumption of innocence, that's not in the Constitution, actually. That just means at trial if you put beans on one side of the scale, the defendant starts with no beans. All of the burden is on the government. But we - we're not in that moment because Mr. Trump wasn't indicted because he cannot be prosecuted under the OLC memorandum.

KING: Because he is not a regular person. He's the president. OK, thanks for clearing that up. Can you remind us what an obstruction charge would look like because there are a couple different components, right?

WEHLE: Sure. So in law, when you're talking about a crime or a civil action, there are elements. It's like ingredients in a recipe. There are three things that need to be shown for obstruction. One is an obstructive act. Two it's a connection to a proceeding, an official proceeding. And three is corrupt intent - the reason that you took the act was to interfere with the investigation, not for some other reason or by mistake.

KING: OK. Ryan, let me turn this over to you. Trump's lawyer Jay Sekulow, again, also said the Department of Justice specifically found that the president did not obstruct justice. Is that the case?

LUCAS: This is a bit complicated.


LUCAS: So Mueller's report documents about 10 episodes in which the president tried to impede the investigation - for example, ordering the White House counsel Don McGahn to fire Mueller. Now the report does not make a decision on obstruction of justice in large part because of what Kim said, this Justice Department policy that you can't indict a sitting president. But the report was clear that investigators could not say that the president did not commit a crime, this whole idea of exoneration.

In March, Mueller delivered his report to Attorney General Bill Barr and his then deputy Rod Rosenstein. They are the ones who decided to make a call on the question of obstruction, and they decided that the evidence was insufficient to establish that the president had indeed obstructed justice. So they were the ones who decided that there would be no charges on that front.

Now Democrats were not happy about this at all. They felt that Barr shouldn't have made a decision on that. They felt that that should have been untainted by a decision from the Justice Department. It should have gone to Congress. And they argued that Barr was essentially acting as the president's personal lawyer.

KING: OK. Kim, there were a couple of interesting exchanges in yesterday's five-plus hours of testimony. Let me play you one between Robert Mueller and Colorado Republican Ken Buck.


KEN BUCK: Could you charge the president with a crime after he left office?


BUCK: You believe that he committed - you could charge the president of the United States with obstruction of justice after he left office.


KING: He's saying you can charge a president with obstruction of justice after he leaves office, but only after - only if the president leaves office after one term. Why is that?

WEHLE: Because there's a general five-year statute of limitations. It means that after five years, you walk free, and you can't be charged. So if he has an eight years - he has eight years in office, then, arguably, he would walk out. And prosecutors would be precluded from bringing an indictment just as a matter of law.

But let me add Mr. Barr made the argument that there was no obstruction claim there because the obstruction wasn't actually executed - that is, Mr. Mueller was not actually fired, and that bear - that bears on intent. That's not in the recipe. That's not number four. So I think there's a realistic possibility that a prosecutor could bring an action if Mr. Trump only had four terms.

KING: OK, that's interesting. Where does...

WEHLE: Or excuse me, four years.

KING: Four years. Where does this go next legally? Or is this where it stops legally? It's now all political.

WEHLE: Yes, it's all political. It will either be resolved in the Congress through impeachment or even just additional hearings like we saw, maybe calling the underlying fact witnesses to tell their stories - Mr. McGahn, for example - so the American people can hear from the fact witnesses, not just a summary witness like Mr. Mueller. Or number two, I think it is an issue squarely for the 2020 election because if the political process does not address this while he's in office, the political process needs to address it at the next election, or we are creating an institution of a presidency that is unaccountable for the rule of law.

KING: Ryan, let me ask you a question about the politics. House Speaker Nancy Pelosi has been really skeptical of impeachment. Many Democrats say impeaching a president without a conviction in the Senate would just help President Trump win reelection. Did yesterday affect that political calculus at all?

LUCAS: At this point in time, it doesn't seem as though it really has moved the needle all that much, as though it has changed the political calculus. We know that the Senate is still controlled by Republicans. That was the case yesterday. That's the case today. That's going to be the case going forward.

Now Pelosi remains lukewarm on the idea of impeachment. For her right now, she's saying that further investigation is the path to take.

KING: NPR's Ryan Lucas and former federal prosecutor Kim Wehle, who wrote the book "How To Read The Constitution -- And Why." Thank you guys.

WEHLE: Thank you.

LUCAS: Thank you.

(SOUNDBITE OF FREE THE ROBOTS' "WARZONE") Transcript provided by NPR, Copyright NPR.