The Daily - The Man Who Wrote Mueller’s Rules

Episode Date: August 23, 2018

The special counsel, Robert Mueller, has followed a set of rules devised to allow for the investigation of a sitting president. Those rules will now be tested. Guests: Neal Katyal, who drafted the regulations that govern Mr. Mueller’s investigation, and Michael S. Schmidt, who has been covering the special counsel investigation for The New York Times. For more information on today’s episode, visit nytimes.com/thedaily.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, the investigation that Robert Mueller has conducted as special counsel is based on a set of rules designed to allow for the investigation of a sitting president. Those rules will now be tested. It's Thursday, August 23rd. From the time the founders sat down and created the documents and the Constitution

that this country is based on, they knew there would be this incredibly difficult question that the country would have to wrestle with, which was how would the government investigate itself? president. It was not clear. And over our history, at three distinct points, we've seen this tested. Nixon, Clinton, and now Trump. Mike Schmidt, take us back to the first time that this was tested. What was it that prompted the investigation into Richard Nixon? Good evening. We have a mystery story out of Washington. In 1972, burglars broke into the headquarters of the Democratic National Committee in the Watergate Hotel in Washington. headquarters of the Democratic National Committee in the Watergate Hotel in Washington.

Mr. Nixon says emphatically that the White House is in no way involved in the burglary and bugging of the Democratic headquarters. He'll have no further comment on that matter. This leads to questions about the involvement of the president. And it needs to be investigated. There's still another Watergate investigation in the offing, the one to be conducted by a special prosecutor. The Justice Department ultimately appoints a special prosecutor. He is Archibald Cox. An investigator who is supposed to be protected from outside politics

to look into the burglary. Good evening. The country tonight is in the midst of what may be the most serious constitutional crisis in its history. What happens is that along the way in that investigation, Nixon fires Archibald Cox

in the Saturday Night Massacre. All of this adds up to a totally unprecedented situation, a grave and profound crisis in which the president has set himself against his own attorney general and the Department of Justice. And there are questions about whether the White House, the president and his aides, interfered with the work of investigators. Nothing like this has ever happened before. So in the aftermath of Watergate, there's a deep fear within the country about how power of the presidency can be abused. And as the country wrestles with that, Congress comes up with a system that they say will ensure the

things that went on under Nixon will not happen again, that there will be a way for investigators to have special protections to keep them completely free of political influence from the White House, the independent counsel statute. It essentially creates a fourth branch of government that allows Congress or the attorney general to appoint someone to look into the president and the investigators are protected at the highest levels. It's very, very difficult to get rid of them. They essentially report to themselves. They can take all sorts of action on their own, like bringing cases or sending information to Congress.

It gives them almost carte blanche in terms of an investigation. So how does this new system work out? After the laws pass, every president has to confront one of these. Carter with a scandal involving Studio 54, Reagan with Iran-Contra, which bleeds into George H.W. Bush's administration, and then we get to Clinton. With Clinton, an independent counsel is appointed to look into an Arkansas land deal called Whitewater. The greatest discrepancy between what the White House has claimed

and what journalists are uncovering in the so-called Whitewater affair lies in the amount of money that Bill and Hillary Clinton say they lost on that land investment deal. And an investigation that begins looking at this deal. CNN has confirmed that Whitewater counsel Kenneth Starr has been granted permission to expand his investigation. Turns into one about the president's sexual relationship with a White House intern. We've had enough of the public inquiries into the deepest private matters of this president and the people around him. We've had enough of the unchecked special prosecutor and his unlimited spending of taxpayers' money. It's very difficult. It's almost a form of McCarthyism, if you will.

So in the aftermath of Nixon, the country had essentially built a moat around the investigators who were going to look at the president. And by the time we get to Clinton, the country says, wow, that moat is so big and so treacherous that we can't even get to the investigators. They're just off on their own doing whatever they want. We're not comfortable with that. So in correcting for the sense during the Nixon era that the prosecutor was too beholden to the president, there was a sense that there had been an overcorrection.

Correct. So in the wake of the Starr report, the Justice Department is once again confronted with the question of what should these investigations look like? And a group is formed to try and answer that question. The person leading it is a 20-something lawyer named Neil Katyal. My very first assignment at the Justice Department as a young pup, I was 27 years old, was to examine the way in which high-level executive branch wrongdoing should be investigated

and ultimately prosecuted. So it was your job to figure out what investigations of presidents should look like after the Ken Starr investigation. That's exactly right. Today, Neal is a very well-known lawyer in Washington who's argued dozens of cases before the Supreme Court, was the acting Solicitor General under President Obama, and most recently argued against the travel ban case before the court.

But back then, he was sort of this wide-eyed, whip-smart lawyer working for Janet Reno, the attorney general at the Justice Department. So soon after I got to the Justice Department, it became pretty clear that we needed to think through what the alternative to the Independent Counsel Act would be. We definitely didn't want to repeat the sins of the old model. We definitely didn't want to repeat the sins of the old model. At the same time, we recognize that, you know, when the president is under investigation or someone close to him, it can't be treated just like a normal investigation because, after all, the president has all sorts of powers to interfere with an investigation. All of these were kinds of concerns that said we need to have some way to investigate high-level executive branch wrongdoing. It just doesn't need to go so far as the Independent Council Act did. I wonder if you could just give us your philosophy of developing a system around how to best investigate a sitting president. What do you think is at the heart of making that successful? What do you think is at the heart of making that successful?

The heart is one very simple thing, which is that you have two values that we both love and that sound great in isolation, but that are mutually exclusive with one another. And those values are popular accountability and independence. So we like the idea of an independent investigation. We like the idea that, you know, high-level wrongdoing is going to be policed. Absolutely. But we also like the idea of accountability, because what happens if the prosecutor herself or himself strays and is acting wrongly? We want them to be accountable in some way, too. The problem is that the more independent you make a prosecutor, the less accountable you make her and vice versa. And so the philosophy was to try and strike that balance much more in the middle than on one side or the other.

So what do they come up with? They come up with a third way forward, the special counsel regulation. So the special counsel regulations did away with the Independent Counsel Act and replaced it with a prosecutor housed within the Justice Department itself and indeed ultimately accountable to the Justice Department leadership. So in the new model you created, you're responding to Starr and also pulling on the lessons of the Nixon structure, and you sort of ultimately end up leaning in the direction of what had been in place under Nixon. That's correct. What we decided on was something that looked very much like ultimately

what we got with Nixon and Watergate, which is special regulations that create a prosecutor who has day-to-day independence in carrying out his duties, but ultimately has to go get permission from the attorney general for any substantial step that deviates in any way from Justice Department policies and protocols. And that's the system we're currently living under, right? This one created by Neil Katyal that attempts to learn the lessons of these past two presidential investigations that are both seen as flawed and these kind of two poles. Yes, and that's the one that Donald Trump is confronting. The thing is, is that the system, since Neil created it,

had not really been tested. This is the first sort of run of it. You know, certainly you can have unprecedented things happening. You know, we knew that when we were writing the regulations, things we couldn't even anticipate. And so there had to be some flexibility in the regulations to say, well, you can't just always blindly follow what has gone before. Sometimes you'll need to deviate from policy and practice. And while this all sounds abstract the way I'm explaining it, I'm about to

make it very concrete. There is a whole debate right now about whether a sitting president like Donald Trump can be indicted. And there are two Justice Department policy opinions which suggest that a sitting president cannot be indicted and tried while in office. Ordinarily, a special counsel would be bound by those policies and couldn't indict, for example, Donald Trump. So Mueller wouldn't be able to. But in the special counsel regulations, we anticipated for the possibility that something unusual might happen. And there's a mechanism for Mr. Mueller to go and seek the indictment, which is to go and ask the acting attorney general, Rod Rosenstein, for permission to do so. Now, if Rod says yes, the criminal process will unfold against the president. If Rod Rosenstein says no, that

triggers a report to Congress, and it's a mandatory report at that level. And then Rosenstein and Mueller have to explain what happened to Congress, and that then provides sunlight into the process. So what you're saying is that in order to bring oversight and sunlight into this investigation, something that would be a politically tinged thing, you put something in there that if there had been a disagreement within the Justice Department where the prosecutor wanted to do something, but the political people running it said no, Congress would have a way of finding out about it. That's exactly right. We had to worry that the attorney general is, after all, the president's guy, or here the acting attorney general, Rod Rosenstein, is the president's guy. He was put

in place by President Trump. He is a Trump nominee. And so you always have to worry, is that person going to act based on party politics or act on the basis of principle? And on the off chance that they were going to do the former party politics and try and stymie an investigation or say no to a special counsel like Mueller, that triggered a report to Congress. And here, if Mueller asks Rosenstein to indict the president and Rosenstein says no, that triggers a mandatory report. And by providing those reports, ultimately the media also would be involved and popular accountability would be enhanced by people like yourselves writing about what was going on. So Neal builds in this kind of backstop where if

the prosecutor finds evidence of crimes, for example, Congress would definitely find out about it, even if the political appointees like the attorney general who works for the president tried to squash it because that dispute betweenees, like the attorney general who works for the president, tried to squash it because that dispute between the prosecutor and the attorney general would become public to Congress. So if there's an effort by the political leaders of the Justice Department to smother part of the investigation, Congress will find out about it. That will be the check. Neil thinks it's working, but he also acknowledges that this is the nightmare scenario he dreamed up

when he put these regulations together. We imagined it, but it was the nightmare scenario. We imagined it, but it was the nightmare scenario. We were writing at a time in the shadow of Nixon. So we understood the possibility that you could have a president who was alleged to be deeply corrupt and deeply antithetical to the rule of law. I sure hoped that it would never be something I'd see in my lifetime and that the country wouldn't see. But we wrote for that possibility. So what you're saying is that what is playing out today is along the lines of the nightmare scenario you, as a young lawyer in your 20s, imagined at the Justice Department when you created the structure that the president's being investigated under today. Yes, we hoped like heck it wouldn't happen, but it was a black swan event that we had to write regulations to deal with. And that's what these regulations were crafted for, something like today. So when Neil says that this is the nightmare situation,

what's nightmarish about it is that he hoped Congress would be this kind of fail-safe in this system he created. And we now have a Congress that doesn't seem necessarily prepared to play that role. based on using the checks and balances, and one of the three branches has shown itself to not be particularly interested in overseeing another one of them, then you are a bit concerned that that backstop that you're relying on may not be there to keep the entire system together. may not be there to keep the entire system together. Congress is the backstop, and he thinks Congress will keep it on track. But this is a Congress that has been enormously loyal to the president and not been particularly interested in conducting oversight of the executive branch. Well, I know that everyone has a certain amount of impatience about this,

but I think it's really wrong to think about a backstop failing or anything like that because, you know, criminal cases and the criminal process takes a long time. And it's really only since yesterday that we've had really the first sustained set of allegations against the president sworn in federal court. And so I think it's too early to talk about failing or not. I certainly hope that, you know, the Congress takes its responsibilities seriously, and I suspect that they will. Mike, what would Neil say to the idea that if Congress doesn't act in this case, that it's still not a failure of the backstop, this case, that it's still not a failure of the backstop, this failsafe he set up, because Congress was democratically elected, and this is the will of the people. So really, the backstop

in a representative democracy is the people. And if they want a Congress that doesn't act against the president, who doesn't think this is a crime, then that's what they've gotten. But from Neil's perspective, would that mean that the president could essentially live above the law? That if the investigators found stuff that the president had done wrong and you can't indict a president under the Department of Justice guidelines and the only way of dealing with the president is through impeachment, if investigators found that the president broke the law and that information was given to Congress as the check and Congress ignored it,

then you are allowing a president to live above the law. But by Neal's definition of what makes the system work, would Congress have to act to prove that the system that he created actually functions? Well, it depends on what the investigators want to do, and it depends on how the Justice Department handles it. If the political leadership running the Justice Department agree with the move that Bob Mueller and other investigators want to take, then you don't have an issue that needs to be dealt with by Congress. It's only if there's a disagreement that Congress would get involved. I think overcorrection is a natural part of the American experiment. We're often trying to solve the last problem. And, you know, it's to be expected that whenever you have a

problem like Nixon, you try and say to yourself, how do we make sure it never, ever happens again? And you can do that, but sometimes your solution has costs. And that's what happened with the Independent Council Act. I sure hope that the special counsel regulations were not an overcorrection to what was going on there. But, you know, time will tell about that, too. And I think we all have to have humility when we're dealing and designing something of this magnitude that we could have gotten it wrong. So what you're saying is that we haven't gotten far enough in this story whether to say that the reaction to Star was an overreaction. That's correct. I mean, we're only in, you know, Act 2 of what I think is going to be a four or five act play here.

So I think, you know, time's going to tell. I mean, I think the special counsel regulations so far have worked very well in protecting Mueller and providing accountability to his actions. But now the rubber's about to hit the road. We're about to find out how truly independent is Mueller. Is his job vulnerable? Is the president going to try and fire him in one way or

another? Is there going to be interference with the investigation? But I do think the regulations provide a framework for interference. And if the president takes any of those actions, either directly or indirectly, they're going to be reported to Congress, and then it'll be up to Congress to do its job. Mike, thank you very much. Thanks for having me. We'll be right back. Here's what else you need to know today.

With that, I'll take your questions. Cecilia. Thank you, Sarah. Michael Cohen under oath pleaded guilty to, among things, paying Stormy Daniels and Karen McDougal during the campaign. And he says he did it at the direction of the president of the United States. Did President Trump commit a crime? As the president said, we've stated many times he did nothing wrong. There are no charges against him. And we've commented on this extensively. During a briefing at the White House on Wednesday, Press Secretary Sarah Huckabee Sanders insisted that President Trump's effort to silence two women who claimed to have had affairs with him did not violate the law,

despite a guilty plea in the case by his lawyer, Michael Cohen. Thank you, John. Can you stand here today and say the president has never lied to the American people? Because so many people now look back at that tape of him on Air Force One saying he knew nothing about these payments, when in fact Force One saying he knew nothing about these payments, when in fact we now know he knew everything about these payments. So has he lied? Look, again, I think that's a ridiculous accusation.

The president in this matter has done nothing wrong, and there are no charges against him. And the Times reports that new court filings show Cohen was not the only person involved in the payoffs that resulted in his guilty plea. The documents show at least two executives at President Trump's company, the Trump Organization, played a role, and that Cohen coordinated the payments with one or more members of Trump's presidential campaign. It's unclear for now whether those individuals will be charged in the case. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.