Former U.S. Attorney in the Southern District of New York Preet Bharara (until he was fired by Donald Trump in March 2017), is doing a tour to promote his book Doing Justice: A Prosecutor's Thoughts on Crime, Punishment and the Rule of Law. I just attended a lecture he did in Los Angeles with Jeffrey Toobin of CNN as the interviewer. The following is based on my written notes of what Bharara said.
Regarding the upcoming Mueller Report, Bharara had some interesting things to say:
- The Department of Justice internal opinion, prepared by its Office of Legal Counsel, states that a sitting President cannot be indicted, because there is another way to hold a President responsible for criminal acts which he commits: impeachment. Bharara believes that Mueller was guided by this principle in writing his report.
- There is no federal crime of collusion; the crime is conspiracy; Mueller apparently said that therefore it is not possible to convict Trump of the crime of collusion. He accepts Mueller's apparent conclusion that there is not a crime of collusion, subject to seeing the report itself.
- It is a different question, according to Bharara, regarding the crime of obstruction of justice. He thought it was "weird" that Mueller punted to Congress, since there is substantial evidence of obstruction of justice. Possibly Mueller believes that it was not good for the country for him to make a decision that would create such a high uproar. Rather than make a recommendation to bring impeachment charges, he may have preferred to lay out all the evidence and let Congress decide.
Bharara speculated that Barr might have wanted to have imprinted on people"s minds: "no collusion…no obstruction".
- Mueller may have been surprised that Barr would prepare a four-page "summary" of his findings and send it out only 48 hours after he submitted his report to Barr. Bharara speculated that Barr might have wanted to have imprinted on people"s minds: "no collusion…no obstruction". But he noted that Mueller would understand that if Barr did nothing for two or three weeks after receiving the report, there would have been a huge uproar.
- Bharara does not think Barr would intentionally mischaracterize the Mueller report and whitewash his findings. Bharara noted that, in the interests of transparency, Barr did put in his letter that Mueller did not exonerate Trump of obstruction of justice.
- Bharara cited a case he handled where his staff sent him a lengthy report of whether or not an indictment should be sought against an individual, and they did not reach a conclusion. He asked them why, and they replied that it was a really close question and they had differences of opinion about it, and wanted to have a discussion. He noted that in a criminal case, the benefit of the doubt goes to the target, and in such cases you don't indict.
- If a target comes within an inch of being prosecuted, but is not, prosecutors don't say this publicly (and he criticized Comey for doing so regarding Hillary). If the target states the he has been "exonerated", like Trump has done after the Barr letter, that is not necessarily true. And to say there is 'no evidence of collusion" is preposterous.
- Bharara would not have been surprised if Mueller had found that the President did obstruct justice. There is a lot more evidence of obstruction than otherwise.
- Bharara is less concerned about Barr distorting Mueller's findings, but more concerned about Barr's omissions from Mueller's report. He stated the the biggest problem with the Barr letter is that it leaves a lot out.
- In response to a question about whether there can be a finding of obstruction of justice when there is no evidence found of the underlying crime of collusion, Jeff Toobin stated that it can be done but is harder to do. Barr did not say it can't be done, but it is less likely. Bharara said that the underlying crime depends on the mental state of the person who might be charged. [My comment: Mueller never asked Trump to give a sworn oral deposition, where his mental state could be tested!]
- Bharara knows and has worked with Mueller. He is a quiet person, and he probably made a decision that you can't compete with the man with the biggest microphone on earth - the President. Mueller talks through his documents and indictments. He will talk if he has an opportunity to correct the record, however.
- Is it possible that Trump recorded meetings in Trump Tower like Nixon did in his office? Bharara has faith that the people doing the Mueller investigation have asked for this information.
We will all see what is in the Mueller report, less redactions, by mid-April. And Barr will testify before the Senate and House Judiciary committees in early May.