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What Legal Questions Will Be Raised After Mueller Report Is Released?


It has been two years in the waiting. But this morning, special counsel Robert Mueller's report will be released - well, at least a redacted version of it. The American public and lawmakers will be able to read Mueller and his team's findings in their own words for the first time for ourselves.

And to help us sort out some of the outstanding legal questions, we're joined by Kimberly Wehle. She served as an independent counsel during the Whitewater investigation. Also Shan Wu, a former federal prosecutor who briefly represented Rick Gates, who was a business partner of President Trump's former campaign chairman, Paul Manafort.

Good morning to you both.

SHAN WU: Good morning

KIMBERLY WEHLE: Good morning.

GREENE: Shan Wu, let me start with you. Obstruction of justice - this is something that came out in the attorney general's letter summarizing Mueller's report. The attorney general's saying that he's not going to pursue prosecution of the president on that topic. But is there nuance here? Are we going to learn more about whether or not there may have been some version of obstruction that doesn't rise to the level of a crime?

WU: I think we most certainly will because one of the most telling quotes - one of the very few quotes (laughter) that the attorney general used from the Mueller report is the quote that said Mueller could not exonerate the president. So I'm expecting that we should see some of those details that were so disturbing that caused the special counsel to be unable to reach a conclusion.

He was able to reach a conclusion in terms of whether there was sufficient legal predicate on the conspiracy, i.e. collusion issues. We don't know if there are other reasons why he didn't reach that. But, certainly, I would expect to see some pretty negative details for the president.

GREENE: Kim Wehle.

WEHLE: Yes. And I think what's important to keep in mind is that both Presidents Nixon and Clinton, in their respective articles of impeachment, faced obstruction of justice charges. So this whole process is moving into the political sphere - that is through Congress or the voters in the next 2020 election. So the information relating to obstruction - as Shan said, we will see information bearing on obstruction, arguably showing obstruction, but not to the level to prove beyond a reasonable doubt before a jury. All that information becomes of critical importance for the public to assess in the political process moving forward.

GREENE: Well, you brought up the word impeachment. I mean, obviously, the public voters will be able to interpret this. But is there some possible path where Democrats and lawmakers might see something that would rise to the level of exploring impeachment if the attorney general has already concluded that there was nothing to prosecute here?

WEHLE: Well, high crimes and misdemeanors is the standard for impeachment, and it does not require the same level of proof as a crime. So what Mr. Mueller made - determined - and Mr. Barr, with respect to obstruction - was there was not the sort of slam-dunk-level of facts that would justify bringing a case to trial because prosecutors don't bring cases if they don't think they can win them. But that's different from saying there's zero information. And I think we all need to be really careful not to think about this process or the facts as black and white. It's not either full exoneration or putting someone in jail.

There is some - a gray area, which, in our political process and under our Constitution, is a very important gray area. And that is, is this the kind of person that is - has the temperament, has the integrity and, in addition, is in a position where there isn't any compromised relationship with foreign powers that would justify him not getting a second term in office? And I really think that's more of the issue than impeachment because the Democrats have indicated they're not interested in that because of the political ramifications.

GREENE: I want to play a little bit of tape for both of you if I can. President Trump was on NBC News with Lester Holt back in 2017. He admitted that he was going to fire FBI Director James Comey regardless of what recommendations he got from the attorney general. And this is what he said.


PRESIDENT DONALD TRUMP: Regardless of recommendation, I was going to fire Comey - knowing there was no good time to do it. And, in fact, when I decided to just do it, I said to myself - I said, you know, this Russia thing with Trump and Russia is a made-up story. It's an excuse by the Democrats for having lost an election.

GREENE: Shan Wu, I mean, this is the president tying the Russia thing - the thing with Trump and Russia, he says - to his firing of James Comey. To what extent do you think that became important for Mueller and his team?

WU: I suspect that was hugely important. It's a wonderful example of how Trump is his own worst enemy. That's a very damning statement for him to have made. And no investigator worth their salt could possibly avoid having to look deeply into that. Of course, a big problem they had was the obstruction really depends on determining intent. And, as Kim knows, the intent is usually found by looking at circumstances and, most importantly, trying to talk to people. And they were not able to talk to the president here. His lawyers, very wisely, I think, (laughter) kept him out of that situation.

GREENE: Kim Wehle, what should we be looking for in these 400 or so pages that we're going to get as we and the public determine what the president's intent was with some of these actions?

WEHLE: Well, I think the number one thing will be to look for information that is not already public. I mean, some of the problem with this is that a lot, as Shan suggested, of what's potentially incriminating for the president has already been made public. And there seems to be a collective shrug. But we will see, in 400 pages, a lot more information than we know in a four-page summary from Mr. Barr. And I encourage everyone to read it on their own because it has that level of importance for our democratic process. So that's number one - the additional facts.

And then I, you know - there are two issues with conspiracy that were identified in the Barr letter, but that's not the full story of Russia. There were other contacts - over a hundred contacts - between the Trump campaign and Russia. There's other questions relating to the Trump Tower Moscow meeting in New York, the decision to not be candid about lots of things Russia from both Trump and people around him. And I would like to see what all of that amounts to for purposes of determining, again, whether this presidency is - as a matter of counterintelligence and national security - something Congress should delve deeply into.

GREENE: Shan Wu, I'm just leading - I'm reading from the attorney general's letter, saying that the special counsel's investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia. I mean, that sounds like it puts the question of collusion to rest. So what remains an open question as we look forward to this report being released today?

WU: Well, with regard to the collusion, I think, to Kim's point, we're looking for many more details about that. And I think Russia has been such a huge spectre looming over this administration that we all want to see the specifics of what the Mueller probe found. And also, while there may never be impeachment in this situation, there's also sort of a death by a thousand cuts. And there's going to be a lot of details in here that lead to more and more expansion of the existing congressional investigations.

And I think one last point that I'm really curious about is, what exactly will we find that Mueller may or may not have said about not reaching a decision on the obstruction? Did Barr simply reach out and do that? Or did Mueller actually defer to him very specifically? So I'll be very curious to see what the answer is.

GREENE: Thank you both so much. We really appreciate it.

WU: Happy to be here.

WEHLE: Thank you.

WU: Thank you.

GREENE: Shan Wu, former attorney for Rick Gates, also former federal prosecutor, and Kimberly Wehle, former independent counsel during the Whitewater investigation, on Skype. Transcript provided by NPR, Copyright NPR.