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Mueller on Obstruction: Unable to Conclude That "No Criminal Conduct Occurred"; Mueller Investigated Multiple Instances of Possible Obstruction of Justice; Mueller Referred 14 Investigations to Other Offices; Trump Called Then-White House Counsel McGahn to Remove Mueller But McGahn Refused. Aired 11:30a-12p ET

Aired April 18, 2019 - 11:30   ET


[11:30:00] JAKE TAPPER, CNN ANCHOR: Generally speaking, I'm no legal expert, but when prosecutors have an example of 10, 10 examples of something happened, they generally don't give the benefit of the doubt to the potential subject or defendant.

CARRIE CORDERO, CNN LEGAL ANALYST: Well, and I think also what's interesting is that it confirms -- it seems to confirm in the report that just because things happen in public doesn't necessarily mean it doesn't still provide evidence for potentially criminal behavior or activity that would be in violation of the statute. So certainly, the president's intent would have been relevant in the obstruction case, but if there were 10 different scenarios, again, I think one of the most important things that are going to come out of the hearings of the attorney general and the special counsel is, why, under the obstruction statute, didn't you think that this -- it wasn't -- you could look at an obstruction case on one or two examples. If there were 10 examples of the president trying to derail, disrupt or obstruction the investigation, why wasn't that sufficient?

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: If I could just add one point to that. I have been reading the answers to the president -- to the take-home exam that Mueller -- it's at the very end of the report. And from my first look, it has most of the questions -- most all of the questions I think and virtually all of the answers. And again, in my first look, they are very heavily lawyered. And virtually every answer, I shouldn't say -- many answers begin, I have no independent recollection of X. So the president and his lawyers are very careful, as good lawyers are, in those answers not to commit him to any specific response but they aren't terribly illuminating either.

TAPPER: Laura, let me go through some of these 10 moments and get your response. The areas involving the president's potential obstruction of justice include his conduct involving the FBI Director James Comey, whom he fired. His conduct regarding former national security adviser, Michael Flynn. He asked Comey to take it easy on Flynn, according to Comey. President Trump denies that. Other areas include the president's reaction to the continuing Russia investigation. The appointment of the special counsel, efforts to remove the special counsel, efforts to curtail the special counsel, efforts to prevent public disclosure of evidence. Further efforts to have Attorney General Sessions take control of the investigation, efforts to have White House Counsel Don McGahn deny that the president ordered him to have Mueller removed. Conduct towards Flynn and former campaign chairman, Paul Manafort, and conduct towards former Trump fixer, Michael Cohen.

Again, that's a lot. And prosecutors, in general, I would say, are a zealous bunch. I hope you're not insulted by that characterization.

LAURA COATES, CNN LEGAL ANALYST: That's probably an understatement. We would love to have 10 bits of evidence that actually most of which happened in the public. That's wonderful for a prosecutor. What's not wonderful here is the misconception that people have. You listed essentially 10 separate categories where the president failed to stop the investigation. Just because they were failures does not mean that you have not implicated the obstruction of justice charge. You can endeavor to do so. It's a crime of endeavoring. Meaning, you can attempt to do so, and even if you're unsuccessful at influencing or preventing or undermining the investigation, it can still constitute obstruction of justice. Which leads me to question, frankly, given the instances you're talking about here and the 10 categories of information, why William Barr stood up in front of a podium today and handed out documents to say that the president and the White House was fully cooperative in every instance about the investigation. You have outlined a litany of instances where they were not cooperative and, somehow, sought to do so.

The second category is yet again why you have the reason you do not want to have a distillation or a summary. We're finding here in stark contrast to what Barr wrote in his March letter that said that first there was never an indication or determination made based on that OLC opinion about DOJ guideline not to indict the president. We have it in there now. We also had him stand before the podium today and say, no, no, I don't believe Mueller ever explicitly told me not to hand it over to Congress because I -- it's good to be the king and the prerogative of the A.G. to receive the confidential report. We're seeing perhaps he had teed it up to punt the Congress. So you're seeing here the idea of just because it failed doesn't mean it's not obstruction, and why a summation is never going to give the complete picture, it can often mislead.

JIM SCIUTTO, CNN CHIEF NATIONAL SECURITY CORRESPONDENT: One thing I want to say, the 10 categories, each of the categories -- and, Jake, you went through them -- but even things, conduct against Flynn, Manafort, pushing McGahn to deny the president ordered him to fire Mueller, these categories we knew about prior to today. There may be more details in there about specific instances of those categories. Was there a way he pressured Michael Cohen we weren't aware of or Manafort or Flynn? But at least the categories, the 10 instances, were there dramatically new categories of obstructions? Appears not, but the devil is in the details.

[11:35:07] WOLF BLITZER, CNN ANCHOR: We just got the first volume of two volumes printed out of this Mueller report -- there are several pages of redactions, clearly -- report on the investigation into Russian interference in the 2016 presidential election. This is volume one of two volumes. "Special Counsel Robert S. Mueller IIII submitted pursuant," blah blah blah.. It's a U.S. Department of Justice document. People are going to be going through this page by page by page. This is just volume one of two volumes.

Pamela Brown, you have been going through it very, very closely. Tell us a little more of what you're learning about the 10 episodes, possible obstruction of justice that Mueller and his team investigated.

PAMELA BROWN, CNN SENIOR WHITE HOUSE CORRESPONDENT: Well, it is clear that Special Counsel Robert Mueller and his team sort of wove together these 10 different episodes surrounding the president and his behavior. I'm going to tick through this list that is in this report just released. They include the Trump campaign's response to reports about Russian support for Trump, conduct involving FBI director James Comey and former national security adviser Michael Flynn. The president's reaction to the continuing Russia investigation. The firing of FBI Director James Comey. The appointment of the special counsel and efforts to remove him. Efforts to curtail the special counsel. Efforts to prevent public disclosure of evidence. Further efforts to have Attorney General Jeff Sessions take control of the investigation. Efforts to have White House Counsel Don McGahn deny that the president ordered him to have Mueller removed. The was following a "New York Times" report. Conduct towards Flynn and former campaign manager, Paul Manafort, and conduct toward former personal lawyer, Michael Cohen.

They also evaluated the why. As we heard earlier from Bill Barr, he sort of laid this picture out that the president was fighting back, that he was a victim. In this report, it says that, quote, "The president expressed concerns to advisers that reports of Russia's election interference might lead the public to question the legitimacy of his election."

So that also gives you a glimpse into the why, what they were looking at in terms of why the president and his aides might want to curtail the investigation, and that is key.

I also want to note that we're learning that Robert Mueller has referred 14 investigations to other offices. That is key here. There are 12 ongoing investigations, information about them, that are redacted in this report. The other two are what we already know of, Michael Cohen, the personal attorney and fixer to Donald Trump, former attorney, I should say. As well as Greg Craig, the former White House counsel, who was recently indicted for lying to DOJ about his work on behalf of Ukraine.

So what this tells you is that the Robert Mueller investigation into Russian interference and possible coordination is done, possible coordination of Russians with the campaign is done. However, there's clearly fallout with us learning today that Mueller referred 14 other investigations to other offices that they're working on right now.

Back to you.

BLITZER: It's very significant that we don't know the details. But the U.S. attorney for the Southern District of New York, the U.S. attorney here in Washington, the U.S. attorney in Virginia, presumably elsewhere around the country, they're going to continue to look into all of these allegations of possible criminal wrongdoing.

TAPPER: And in terms of the obstruction of justice charge. Though we know that Attorney General Barr doesn't think there's anything there that's prosecutable, and we know that Mueller at the very least was ambivalent and did not reach a specific conclusion. This document now goes from being a legal document to becoming a political document.


TAPPER: And the House now being controlled by Democrats is incredibly relevant to this. And Democrats are going to look at these 10 episodes of potential obstruction, I'm guessing, just throwing it out there, quite differently than the way Attorney General Barr does.

BASH: As a road map to potential impeachment proceedings. They're going to be careful and clear. We're already hearing from Democrats in the House that they want to hear from Robert Mueller himself. But knowing about his personality and the way he approaches this, he's not going to go up to Congress and say, yes, I think he should be impeached. He's going to say look at what I did. What he did in here, as Pamela just laid out, is a road map, a 10-episode road map for really serious consideration for impeachment, because these are things that the Mueller team concluded were intended to derail their investigation. And so when I say it's going to be hard for the Democrats in the House to not at least look at that, it is because it is just, as you said, Jake, spot on, this is a political question. That is why Robert Mueller didn't make a conclusion. He just laid out the fact. It's a political question whether or not what the president did, according to Mueller, reaches the level of high crimes and misdemeanors --


[11:40:10] BASH: -- which is what the constitutional bar is.

JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: He essentially says so. He says so. He says we were never going to entertain the question of an indictment because you don't indict a sitting president. That's what the Justice Department says. Then he says if we could have said there was no obstruction, we would have said so. It's telling that he doesn't. He said, "We recognize that a federal criminal investigation against the sitting president would place burdens of the president's capacity to govern and" -- here's the important part -- "potentially preempt constitutional processes for addressing presidential misconduct." That means Congress.


KING: He was deliberately saying I'm not the fire department because the Justice Department says you can't indict a sitting president, but here's the smoke.

BORGER: Right.

BLITZER: But you have to start, Gloria, with the House of Representatives. And the speaker, Nancy Pelosi, has already said, you know what, between now and the 2020 election, the Democrats in the House, they have a lot more important things to do than focus in on impeachment right now. Do you think this document is going to change Nancy Pelosi's attitude?

BORGER: I think they have a bit of a conundrum here.


BORGER: And I think they're going to have to sit down, read this report, and figure it out. And the question that I really have -- and the lawyers can answer this. The question that I really have is collusion, the word "knowingly" was important, did anyone knowingly collude, et cetera, and the answer to that from Mueller and Barr was, no, you couldn't establish that. Is that the same question you have to ask with obstruction? It seems to me, in starting to read this voluminous report, that you did have a president who was frustrated, angry, lashing out, trying to get his White House counsel to fire Mueller, and then apparently trying to get him to say that the president didn't get him to fire Mueller. So you have a president, you know, talking to his national security team about this, you know, talking to Comey about this, et cetera. And is there something in this that says, well, the president didn't know that he was obstructing anything, that he was ignorant of the law in this matter and, therefore, we shouldn't treat it the same way we would treat someone who was knowingly obstructing justice?

TAPPER: Can I bring up one other thing about this obstruction of justice charge, because it is significant? We have been told by the Trump White House that it is fake news that he wanted and in fact ordered --

BORGER: Right.

TAPPER: -- the White House counsel, Don McGahn, at the time, to fire Robert Mueller.


TAPPER: It's been reported -- I believe the "New York Times" broke that story -- and the White House said it's fake news, it's not true. Page 216, "On June 17th, 2017, President Trump called McGahn, the White House counsel, at home, and directed him to call the acting attorney general and say that the special counsel had conflicts of interest" -- that's Robert Mueller -- "and must be removed. McGahn did not carry out the direction, however, deciding he would resign rather than trigger what he regarded as a potential Saturday Night Massacre."

Again, there are the legal questions here. And then there's the question of ethics and morality. And when the White House lies and the White House lies to the American people, and says, no, the president never did that, that falls in this category. It's not illegal to lie to the American people, but it was done.


BLITZER: We can assume McGahn himself was the source of that --

TOOBIN: It's a legal question that is of interest to a lot of people.

BORGER: Was it mine?

TOOBIN: Which is related to yours.

Well, obstruction -- if he didn't fire Mueller, then there was no obstruction of justice. That's not the law. The law is if you attempt to obstruct justice, that's the crime.

BASH: See Martha Stewart.

BORGER: But if you don't see it as obstruction, and you can see it, and you say, this is my authority as president of the United States, or you know, I can fire and hire whomever I want, Article II, et cetera, or I'm ignorant of the law, and I was just trying to sort of --


BORGER: -- ignorance isn't a defense.

TOOBIN: You're asking the critical question in most white-collar cases, which is about criminal intent.

BORGER: Right.

TOOBIN: And the answer to that, by and large, is that it's usually a jury question in that was there bad intent? And that's not defined with precision.

BORGER: Right.

TOOBIN: And as I'm reading here, the section I was reading was about the instruction to Comey to go easy on Mike Flynn.

BORGER: Right.

TOOBIN: And the report goes through all of the possible explanations of why he might have told Comey to go easy on Mike Flynn, including just personal sympathy, and it doesn't answer the question of whether there was bad intent.

BORGER: Right.

TOOBIN: But that question of, you know, corrupt intent, bad intent, it's the critical question in all of these white-collar cases.


[11:45:10] TOOBIN: But it's usually just up to the jury to see if it's there.

(CROSSTALK) SCIUTTO: You mentioned the McGahn example. I have been looking in the report for what's new news, what we didn't know. It recounts an example of possible obstruction we did not know about before. Relates to Corey Lewandowski, June 19th, 2017. Where the president called him into the office, dictated a message to Lewandowski, and told him to tell Sessions that he should publicly announce the investigation was, quote, "very unfair," and let him move forward with the investigation, the investigation -- election meddling for future elections. In other words, get off 2016 and look to the future. That's an instance of a president trying to get an aide to instruct his sitting attorney general to stop investigating this. Interestingly, in an act of great political courage, Corey Lewandowski handed that off to Rick Dearborn, and Rick Dearborn refused to do it. Like the McGahn example, the president instructed, they refused to follow through, which should be confidence inducing. But it's another incident, and another incident we did not know about of an attempt to allegedly obstruct.

TAPPER: Let's go back to the moment in which Robert Mueller states it is a fact that President Trump called Don McGahn, then the White House counsel, and says, fire Robert Mueller, fire the special counsel. Now, McGahn ultimately does not fire him. He's one of the guardrails or was one of the guardrails of the Trump presidency. And the White House goes out, and once this breaks -- I think it broke a year later in the "New York Times" -- the White House lies about it. The White House says that never happened, it's fake news. But that act, potentially obstruction of justice.

COATES: Yes, the attempt to do so obstructs justice. The idea of him being ignorant of the law in that capacity, the very second he fired James Comey, we can all recall that day, obstruction of justice was no longer like a nebulous term. It was floated because he was aware of that. His lawyers were brought in as part of the P.R. campaign to undermine that assumption. And then it follows up with McGahn and down the line. But if there was a moment of ignorance of the law, that was in the rear-view mirror. The very attempts to do so, expressed, the fact it was unsuccessful, the fact that maybe nobody carried out the particular endeavor, does not say, oh, then you never committed the crime. That's what's missing from the discussion that the president's team has been having up until now, look, it didn't happen the investigation went on, I was cooperative. In Barr's statement today, I didn't deny, didn't try to cleanse or bleach any information, I encouraged you to go forward, that may be true, but on a scale of the obstruction of justice thing, you have to think about what you didn't do versus what you actually did endeavor to do. In that respect, it's still one of 10 categories of obstruction.


CORDERO: And beyond the statutory criminal elements of obstruction, the question is, is it an abuse of the president's authority. That's the question Congress is going to take on. If the attorney general subscribes to the view or if the White House lawyers have argued that all of this activity was legitimate because the president has the ability, the executive authority to fire people in the executive branch --

TAPPER: Including Robert Mueller.

CORDERO: -- which would extend to his --

TAPPER: That's the argument.

CORDERO: -- his attorney general, the special counsel. These are all still individuals who are in the executive branch. If that's the argument, then the constitutional question is, is that an abuse of his authority because he was not doing it because they weren't doing their job. It wasn't an appropriate attempt to use his executive authority. He's abusing or at least he was trying very, very hard to abuse --


BLITZER: -- Mueller concluded while he couldn't exonerate the president, at the same time, he wasn't going to go forward and press charges or anything along those lines.

CORDERO: Because it didn't meet the statute --

BLITZER: Because he didn't think whatever he described in the criminal intent and along those lines.


BORGER: What's interesting in reading over all of this, particularly the McGahn segment here, which is crucial, as we all know, that it seems to me there were many times the president was warned by his then-White House counsel, you shouldn't do this, you should not be calling your national security people, you should not be saying things that you're saying about Flynn or whatever. So it seems to me that there was an effort made to kind of rein in the president, who was obviously frustrated, upset, with this entire investigation, and that the president, at one point, said, I know I shouldn't have done this, but I did. That he was told that these behaviors are not appropriate and you shouldn't be doing this, and yet he did it anyway.


[11:50:03] COATES: He's always been on notice about the issue. But Laura Jarrett made a really important statement that cannot be underscored. Laura Jarrett reported the idea that he also wanted to preserve memories and he wanted to get everything on the record even in spite of not being able to indict. It was a sitting president. Well, one of the reasons you want to preserve information is because you are keen to the idea of a statute of limitations period of which to bring criminal action against somebody and when that memory would need to be refreshed later on down the road, either for the political constitutional objective perhaps of impeachment or also the fact that here we are in April of 2019, and November 2020 is a hop, skip and a jump away. Wouldn't it be nice to preserve information and the integrity of an investigation, in fact, that the DOJ guideline about a sitting president was no longer applicable?

BLITZER: Let's go to Pamela Brown. She's getting more information on the whole involvement of the special White House Counsel Don McGahn on what was going on as far as the president ordering him to do certain things that resulted in an investigation of possible obstruction of justice.

BROWN: That's right. There's key things here. There's the episodes that happened, and the why. And we're learning in reading this report, part of what Robert Mueller's team scrutinized as to the why, in fact we've learned there's one section here about when the president learned about Robert Mueller being appointed. He slumped back in his chair and said, quote, "Oh, my god. This is terrible. This is the end of my presidency." These are direct quotes from Robert Mueller's report about the president's reaction to his appointment in May of 2017.

Fast forward a month after that, in June 2017, we're learning that the president called his then-White House counsel Don McGahn at home over the weekend and told Don McGahn, directed him to call Rod Rosenstein, the deputy attorney general, and say Robert Mueller could not continue on as special counsel, he should be removed because there's conflicts of interest. We've learned that Don McGahn refused to do so. He said he would not do so, that that would be another Saturday Night Massacre and that was not something that he was going to do.

Also, as part of this, the special counsel included the part where this was reported and the president told Don McGahn to go out and publicly deny that the president had asked him to remove Robert Mueller. As we know, that never happened. But this is something that Robert Mueller's team looked at as part of the calculation of whether this was a direct attempt to curtail the investigation, an attempt to remove the special counsel. Now, as we know, that never happened. But clearly, laying out in this report, Robert Mueller showed that the president wanted to remove him, directed his then-White House Counsel Don McGahn to do it but McGahn didn't.

What you're seeing come to light, as we're trying to piece this together, are examples of some of the president's own officials saving the president from himself essentially in this obstruction probe.

TAPPER: Interesting.

BLITZER: A significant moment. As we -- Jeff, why are you chuckling?

TOOBIN: It just -- if this isn't obstruction of justice, I'd like to see what is obstruction of justice, because, I mean, the scale and the number of episodes in the way that the president tried to stop this investigation, without stopping it, and that needs to be point out, is just extraordinary. And, you know, and you want to talk about motive. I mean, the part that Pamela just quoted. He's sitting there look at an investigation where he says, this is the end of my presidency, so he spends the next year trying to interfere with that investigation so his presidency doesn't end. I mean, that's as clear an indication of motive as I can -- as I can determine. And if you look at the extraordinary details here, you know, the -- the often minute-by- minute analysis of who the president is calling and when and what he's saying, including phone calls I certainly wasn't aware to have Corey Lewandowski, who he was telling. And you know, and I suppose, you know, one explanation for all of this is that he was just blowing off steam and the invariably explanation that we always get from Sarah Sanders that he was just joking, but it's a lot of evidence of obstruction of justice.


BASH: If he wasn't worried about collusion, if he really meant it for the past two years that there was no collusion, why was he doing all of this?


TOOBIN: Well, to play devil's advocate, as Attorney General Barr did today, in the president's view, there was no conspiracy.

BASH: Right.

TOOBIN: This was concocted by Democrats and the media and the Deep State, and it was undermining his presidency, and he wanted it to end and there was no conspiracy.

BASH: There was no conspiracy, but it turns out -- maybe I'm answering my own question, that -- that, I'm sorry, but there was collusion when you look at the actual definition that have term. There wasn't conspiracy.

TOOBIN: It's not a legal term.

BASH: It's not a legal term, that's exactly right. There was no conspiracy, there was no crime committed, according to the special counsel. But on page after page after page, instance after instance, you see people within the Trump campaign and the Russians talking to, coordinating with one another. It started when, as you said at the beginning, to Don Jr., to other instances, the Trump Tower meeting with WikiLeaks, it goes on and on. It's not criminal but collusion in the truest --


[11:55:29] BASH: -- definition of the word.


BORGER: Can I go back to Jeffrey for one second? Where you were talking about Don McGahn, and, you know, the -- the description of the president calling McGahn, he says you've got to do this, you've got to call Rod, and this was about getting rid of -- getting rid of Mueller. And it seems to me, in reading through all of this, and McGahn, did not act on it, that McGahn saved the president from himself, I think.


BLITZER: Hold on one second. The exact quote, and I want to be precise in this Mueller report at the end of that conversation when the president heard that Mueller was going to launch his own special investigation, he said, and this is a quote in the Mueller report, "This is the end of my presidency. I'm --," and then he used the "F" word.

TAPPER: I'm F'd.

BORGER: Right. And he goes on and does this, and then McGahn refuses time and time again. He didn't correct the "New York Times" piece where the president wanted him to issue a correction, and -- and he didn't call Rod.

TAPPER: Because it wasn't a correction.


BORGER: It wasn't a correction.

TAPPER: It would have been a lie.

BORGER: He said it was true, and then he didn't -- he didn't ask Rosenstein to fire Mueller. The president was trying to do this. And I think, time and time again, people were -- were not listening to him, particularly his White House counsel, who understood the repercussions of it, whereas, the president either didn't care or didn't understand.

TOOBIN: And there are other examples in here --


TOOBIN: -- of people saving the president from himself. One, largely forgotten figure, K.T. McFarland, is mentioned in here --


TOOBIN: -- where --

TAPPER: Former deputy national security advisor.

TOOBIN: Former deputy national security adviser, one-time nominee to be ambassador to Singapore and had to withdraw her nomination. But she was asked at one point to write what she regards as a misleading letter, explaining something relating to Michael Flynn, and she refuses to do it. Again, there are several people. I mean, I think McGahn is most prominent among them.


TOOBIN: Sessions himself, at times, you know, doesn't un-recuse. I mean, he's -- he's asked to un-recuse himself, which would have been absurd. He doesn't do it. And, again, I think does the president a service by not un-recusing.

BORGER: And at the same time, the president is tweeting, why won't the Justice Department do what I want it to do for me and, at some point, I may have to get involved myself, when we now know that he was trying to get involved. And he was getting push back of the right kind from people who worked for him. SCIUTTO: Very early on in this investigation back during the

campaign, a source of mine said to me that a lot of evidence in this -- and this is what Intel agencies call open source -- a lot of evidence is open source. It's public comments. And that goes both to the obstruction issue and also the collusion issue or just willingness to work with and communicate with Russians. The president made public comments about this showing his support, and he already went to a degree that -- that previous presidential candidates were not willing to go, right? U.S. presidential candidates have been offered help by foreign powers before. Not to go -- not to the play historian here, but Hubert Humphrey in 1968 and Adlai Stevenson in 1960. They've been offered before. They said, no way, I want to be president but I'm not going to accept this help. And what the special counsel does not exonerate the president of, in the category of conspiracy, well, his teams, I should say, is of a willingness. They expected it would benefit them and they showed interest in this help. That's remarkable thing for the candidate.

TAPPER: That's interesting.

And for those just tuning in, I want to go over what we're doing right now. One of the things in the Mueller report -- the Mueller report focuses on two things. One is whether or not there was conspiracy. The conclusion was there was not enough evidence of conspiracy between the Russian government and anyone on the Trump campaign or knowing American. And the other question is obstruction of justice and whether or not President Trump committed obstruction of justice in trying to hamper the Mueller team, the FBI, whomever, from conducting this probably.

Let's reset the big takeaway so far in this redacted version of the Mueller report.

And we're going to go to Evan Perez and Laura Jarrett.

Laura, you have been focused on the obstruction of justice part of this report. What are the big takeaways?

LAURA JARRETT, CNN JUSTICE REPORTER: Well, Jake, one of the biggest takeaways is how Mueller's team felt constrained by the legal situation here and department guidance on the fact that a sitting president cannot be indicted. And the special counsel's team explains that they are going to abide by that guidance.