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A Legal Look At What's Next Now That The Russia Investigation Has Ended

Mar 22, 2019
Originally published on March 22, 2019 8:36 pm
Copyright 2019 NPR. To see more, visit https://www.npr.org.

AILSA CHANG, HOST:

All right, let's get a legal perspective now. Sitting in the studio with me is Jeffrey Rosen of the National Constitution Center. Thanks for being in here again.

JEFFREY ROSEN: Great to be back.

CHANG: Well, we know from NPR's Carrie Johnson that special counsel Robert Mueller is not going to be recommending additional indictments. Now, you said earlier in the show today that that fact does not necessarily mean an exoneration of President Trump. Explain what you mean by that.

ROSEN: Robert Mueller, like the Justice Department, believes that the president cannot be indicted. That's been settled Justice Department policy since the Nixon administration, and although some disagree with it, it's not a surprise that Mueller is following it. Therefore, the fact that Trump is not being indicted says nothing about whether any facts revealed by Mueller might be grounds for future criminal prosecution after he leaves office or for possible impeachment. And that's why we just can't know until we read the report...

CHANG: Right.

ROSEN: ...Exactly what the legal consequences are.

CHANG: There could have been a finding of criminal behavior, but just because it's the Justice Department's discretion not to indict a sitting president, that's why there may not be indictments from this Mueller report. Let's talk about impeachment, the I-word; that's been something one swath of the country has been talking about in anticipation of this report. Remind us, what are the standards for impeachment?

ROSEN: Well, President Ford, when he was a congressman, said impeachment is whatever the House says it is. But broadly, people think that to be a high crime or a misdemeanor - which is what the Constitution says; treason, bribery or other high crimes and misdemeanors - not all criminal conduct is impeachable, and not all impeachable conduct is criminal.

CHANG: What does that mean?

ROSEN: Well, it can mean whatever the House says.

CHANG: (Laughter).

ROSEN: And ultimately, whatever the Senate says. But it could mean that, if President Trump committed actions that fall short of criminal collusion but still the House thinks show a corrupt intent to throw the election to Russia, they might well indict him, and the Senate could or could not convict him and similarly for questions involving obstruction. So really, as E.J. Dionne said earlier on the show, you know, it's up to the Senate to convict, but the criminal nature of the report does not determine whether or not it could constitute a high crime or misdemeanor.

CHANG: In other words, impeachment is much more of a political standard, not a strictly legal one. High crime and misdemeanors - we don't mean that in the technical, criminal, legal sense.

ROSEN: It's a mix of politics and law. And certainly, if there is absolutely no evidence of criminal wrongdoing, and if there were an actual exoneration finding that Trump had nothing to do with collusion, that would significantly decrease the case for impeachment. But that's unlikely to be the case, given the complexity of the impeach - of the collusion and obstruction charges themselves.

CHANG: OK, so the president's legal team has made remarks in the past that they might try at some point to invoke executive privilege, to perhaps block parts of the report from going public. How would that work? What qualifies as executive privilege, and when can you invoke it?

ROSEN: So the U.S. v. Nixon case unsurprisingly tells us about executive privilege. The president can invoke it whenever he likes, but it generally covers either deliberative privilege - his ability to make decisions within the White House - or important foreign policy questions. So broadly, it does not cover pre-presidential conduct - most people agree - but if the House were to subpoena his notes with President Putin, for example, then he could claim that is at the core of my foreign policy function and return to - refuse to turn it over, and that could give rise to a dispute. But broadly, it can be pleaded in all sorts of situations, and it might even go up to the Supreme Court.

CHANG: That's Jeffrey Rosen. Thank you so much.

ROSEN: Thank you. Transcript provided by NPR, Copyright NPR.