On a special Thursday episode of Amicus, Slate’s podcast about the Supreme Court, Dahlia Lithwick was joined by Matthew Miller, former director of the Office of Public Affairs for the Department of Justice, a former spokesman for Eric Holder, and an MSNBC contributor. A transcript of her interview, which has been lightly edited and condensed for clarity, follows. You can listen to Amicus via Apple Podcasts, Overcast, Spotify, Stitcher, Google Podcasts, or wherever you get your podcasts.
Dahlia Lithwick: There are, essentially, two questions here. One is about “collusion,” which quite quickly we learned that Bob Mueller says is not a thing. And the other is obstruction. On the collusion piece, which is essentially Mueller saying, “I couldn’t find criminal conspiracy,” the issue is the Russians wanted to help, the Trump folks wanted the help. Still no agreement, right?
Matthew Miller: Yeah. I think that’s right. And I think it’s much different than how the attorney general described it when he came out and said, basically, that collusion didn’t happen. That’s what he said in his press conference. And of course, the department doesn’t establish that crimes didn’t occur. What they do is investigate crimes and decide whether they can charge them or not. And I think the language that Mueller uses in the report is much, much different. He said, you know, they investigated it, they found, as you stated, that the Russians were clearly interfering in trying to help the campaign and at times the Trump campaign was trying to accept that help, but that they just couldn’t prove it. And I think there’s one notable section where he notes that a number of people associated with the campaign deleted their communications—a number of them used encrypted forms of communication that the special counsel didn’t have access to. And so it’s impossible for the special counsel to say if access to that information would’ve caused him to reach a different conclusion.
So, this kind of goes to this larger point that the reason we can’t establish collusion is because of the obstruction, right?
Yeah. That’s exactly right. And he does note, also, that a number of people lied, and obviously, we’ve seen people who have been convicted, have pled guilty to lying. And that’s been the case all along, that the president publicly has not told the truth about some of his behavior, and that some of his aides have privately not told the truth—and are facing sentences for it.
So Matt, let’s do the obstruction for a minute, because this is the part that I do find confounding. Mueller lays out episode after episode after episode where, if we lived in normal law land, this is a gimme, right? I mean, so many of these things … it doesn’t matter if Don McGahn refused to fire Mueller. Trump asked him to do it. The president, time after time, asked people to get rid of Sessions or to lie about Michael Flynn. Help me understand. Is it just these structural problems, where he just felt he couldn’t get it over the finish line? Or is it Article II powers? Why can’t he just do it?
I think it’s all of those. And I note that in his analysis for why he didn’t make a call, the first thing he says is to reference the [Office of Legal Counsel] opinion finding that indictment or prosecution would be impermissible. So that tells me that was high on his thinking. And then he comes to an additional conclusion that, even apart from OLC’s view, he recognizes that a federal criminal accusation against a sitting president “would place burdens on the capacity … and potentially preempt the constitutional processes for addressing presidential misconduct.” My read of that is he’s saying, No. 1, OLC prevents me from indicting the president, and No. 2, making that accusation preempts what Congress needs to do. And then he goes and lays out all of the evidence, and my read is that he’s really leaving it to Congress to make that determination.
So this raises the question that makes everybody a little sticky. But it does mean that impeachment has to be back on the table, right? I mean, if we can’t have that conversation, Nancy Pelosi, then there’s no redress at all, right?
I think at least the question of whether the conduct laid out in this report merits impeachment and conviction, that question has to be on the table. Whether Congress wants to take the additional step of voting to impeach is a question for them to decide, but they have to look at the evidence laid out here, and do a thorough investigation, or at least a thorough airing and debate, and decide that question. And if they decide that either legally, or in this kind of quasi-legal political determination that impeachment relates to, they’re not going to bring charges, or they’re not going to impeach the president, or politically, it’s just not worth doing because the Senate will never convict, they can make that determination, but they need to have that debate.
You started to flick at this, but will you more fulsomely talk about William Barr? There was this notion that he was going to be a straight shooter and an institutional actor—a lot of us said he’s a lifer, he cares about the Justice Department and the integrity and reputation of the department. That was a pretty grim press conference, if that’s the case. And one of the things that he said was that that OLC guidance was not the but-for cause of Mueller’s decision not to go forward. That seems to not be true. So can you just give me a quick thought on what Bill Barr was doing when he all but said Donald Trump is the real victim here?
I thought it was just an astonishing press conference, and I think that anyone that thought Bill Barr would be a faithful adherent to the rule of law—and I was hopeful he would be but didn’t know—was absolutely mistaken. I thought his decision to say that the president had been cleared—when that’s not what the Justice Department does, and that’s not what Mueller does—was wrong, on the collusion piece. I thought the way he described the president’s actions on obstruction, where he basically made excuses for the president—you know, that the president’s associates were under investigation and he was upset about that—yeah, well, we now know that those associates, many of them, were actual criminals and have pled guilty to crimes. He not only excused the president’s interference with the Justice Department’s investigation and all of his attacks on the Justice Department’s investigation, but he gave license to the president to keep doing it.
The president is still under investigation by the Justice Department, and Bill Barr is saying it’s OK for the president to interfere with investigations. And then I think just the factual misstatements he made—the reference you made to the OLC opinion, he tried to play that down—what he said was at least misleading. And then, his claim that the president fully cooperated with the investigation. Well, that’s just not true. The president wouldn’t sit for an interview, and he wouldn’t even give written answers to the obstruction questions. So, to make excuses for the president in that way, when the president had been refusing to cooperate with an investigation that Bill Barr’s department led and attacking that department over and over and over, I just thought was disgraceful.
So, the legal question is over. This now becomes largely a question of politics, and that means it’s just a question of spin, right? We know that the White House is saying, Complete exoneration. It’s all over. Let’s investigate Hillary Clinton again. Is the public going to absorb what it is that you just said to me, which is “this is not complete exoneration”? Is the public going to know what happened here?
I think some of the public will, but I think the voters that get their information from conservative media are going to have the attorney general’s interpretation. And that’s why what he did was just so irresponsible, and so out of keeping with the way the department behaves. He knows that we are out of the legal realm and into the political realm. And he was putting his thumb on the scale for the president, and giving the president a talking point, and giving Fox a talking point, giving everyone in the conservative media a talking point that the president was exonerated. And they’re going to be able to run with that, and truthfully say that the Justice Department exonerated him, because the attorney general did do that. But that’s not what the special counsel did. And you would like to think that there will be a factual airing of everything in this report, but we all know that’s not how Fox and the conservative media are going to cover this, and Bill Barr’s press conference was just an enormous gift to the president, in that regard.