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Mueller Report: Ex-Prosecutor On Why An Obstruction Of Justice Case Has Weak Odds Of Success


Robert Mueller's special counsel's report revealed a lot - disarray in the White House, lies to the American people and how two people looking at the same facts can reach different conclusions, including on the letter of the law. We're going to spend the next few minutes with two legal thinkers - first, Solomon Wisenberg, criminal defense attorney who worked under Ken Starr as deputy independent counsel in the Whitewater probe. Mr. Wisenberg joins us from the studios of WUNC in Chapel Hill. Thanks so much for being with us.


SIMON: Two main parts to the Mueller report - we'll note first they concluded no one in the Trump campaign conspired or coordinated with the Russians, which does not end questions about the propriety about campaign's contacts with Russia. But let me ask you about obstruction of justice. The report says, quote, "If we had confidence after a thorough investigation of the facts that the president clearly did not commit obstruction of justice, we would so state." That doesn't sound like a ringing endorsement of their integrity.

WISENBERG: Well, I would leave integrity out of it. If it was a question of judging integrity, the president would be getting a D-minus or an F by that section of the report. But Mueller has been criticized, I think with some justification, that he didn't make that call. But that's what he was supposed to do, and I think when he didn't do it, it fell upon the attorney general to make the call himself.

SIMON: Do you think the attorney general's made the right call?

WISENBERG: I think he has made the right call. There's no question that the president's conduct was abhorrent, but the question is whether or not it amounts to criminal obstruction of justice. There is only one incident that, in my opinion, comes close to constituting traditional obstruction of justice, and that is the president's efforts to get Don McGahn, his White House counsel, to issue a written statement to the effect that the president had not asked him to fire Bob Mueller. All of the other episodes, I don't think, are really close to obstruction of justice. And some of them - to even speak of them as obstruction is ludicrous. But that one is quite disturbing.

SIMON: The attorney general seemed to say the president didn't intend to obstruct justice. He was - believe his words were, just frustrated and angered - essentially letting off steam when he told Don McGahn to fire Robert Mueller and then lie to the American people about it. Can you really use a defensive ignorance when we're talking about the president of the United States?

WISENBERG: Well, I think what the - the attorney general was actually using words from the Mueller report, talking about the president's motivations, what they might be. I think the attorney general was impressed with the fact that there was no underlying crime. And it's a lot easier to prove intent in an obstruction case if you have an underlying crime.

SIMON: And there's no underlying crime here.

WISENBERG: Well, according to the special counsel, he could not establish that and apparently couldn't come close to establishing that.

SIMON: That's - I don't have to tell a big-name lawyer - saying we can't establish it's a little different than saying exonerate.

WISENBERG: I really don't think so. Let's say that you're indicted. And you go to trial, and the jury finds you not guilty. All they have found is that the government hasn't proved its case beyond a reasonable doubt. But I think it's fair to call that an exoneration. And I think if you've been investigated for two years and they say, we can't establish the case, I'm comfortable with calling that an exoneration.

What I'm uncomfortable with are the just multiple instances of mendacious conduct by the president of the United States. Not only does the president repeatedly lie, but he repeatedly asked his subordinates to lie. And he's incredibly fortunate that all of them refused to carry out what he wanted to do. And let me point out that the evidence that Mueller has on this point is not coming from the president's enemies. It's coming from Don McGahn, his counsel. It's coming from Corey Lewandowski, a very close friend. It's coming from Hope Hicks. It's coming from Chris Christie. These are the president's friends who are basically proving the case that he is not an admirable fellow. That's just all there is to it.

SIMON: Solomon Wisenberg, thanks very much for being with us.

WISENBERG: My pleasure. Transcript provided by NPR, Copyright NPR.