Will The Mueller Investigation Unearth A Crime? Legal Reporter Says It's Complicated

Dec 7, 2017
Originally published on December 13, 2017 11:40 am
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TERRY GROSS, HOST:

This is FRESH AIR. I'm Terry Gross. My guest Jeffrey Toobin is working on a book about the Mueller investigation, and he has a new article about it in the New Yorker, where he's a staff writer. He's also been commenting on the investigation for CNN, where he's chief legal analyst.

Robert Mueller was directed to conduct a full and thorough investigation of the Russian government's efforts to interfere in the 2016 election, including any links and or coordination between the Russian government and individuals associated with the Trump campaign. We're going to take a step back and look at the big picture. What are the possible outcomes of the investigation? Who is on President Trump's legal team, and what strategies are they pursuing?

As it stands now, two people from the president's team have pleaded guilty of lying to the FBI. Michael Flynn, Trumps former national security adviser, and George Papadopoulos, a Trump campaign foreign policy adviser. They're now cooperating with the investigation. Paul Manafort, Trump's former campaign chair, and Rick Gates, a former campaign aide who is also Manafort's business associate, have been indicted on 12 counts, including conspiracy against the U.S. and money laundering. They've both pleaded not guilty.

Jeffrey Toobin, welcome back to FRESH AIR. Since one of the things we're going to be talking about is how Trump's legal team is making him and what kind of cases they're expected to make. Let's talk about his legal team. He has three lawyers primarily involved on his defense team - Jay Sekulow, Ty Cobb and John Dowd.

Let's start with Jay Sekulow. He cofounded the American Center for Law and Justice, which you describe as a right-wing counterpart to the ACLU. Tell us a little bit about that and the kind of cases he's represented with them.

JEFFREY TOOBIN: Yeah. Jay is someone I've written a lot about over the years. He's 61 years old now. He grew up in Long Island. He was raised as a Jewish kid. But when he went to college in Atlanta, he had a religious awakening. And he joined the messianic group called Jews for Jesus and, ultimately, became a lawyer and then general counsel to Jews for Jesus. And he got involved in a lot of cases defending the right of Jews for Jesus to proselytize. They do a lot of aggressive leafleting, as people might know.

And he developed this specialty in representing religious groups that wanted to operate in the public sphere, whether they wanted to hold services in public schools or religious classes in public schools - basically, those kinds of issues. He drew the attention of Pat Robertson, the religious figure and conservative activist. And they decided to found a group.

GROSS: And TV personality.

TOOBIN: Right, exactly, and TV personality. And they decided to found this group called the American Center for Law and Justice, which has expanded to kind of a full-service evangelical political operation, which does lawsuits. Jay has his own radio show. And he is now part of the evangelical conservative movement.

He's a familiar figure on cable TV. And Donald Trump saw his appearances and hired him to be one of his personal lawyers. Jay is not someone who's particularly experienced in criminal law, but he is good on TV. And that's something that the president always appreciates. So Jay has been very much the public face of Donald Trump's personal defense.

GROSS: And you mentioned that he's part of Jews for Jesus. That's what's called Messianic Judaism. It's people who were Jewish, but believe that Jesus is the savior. So they're, basically, Christians (laughter).

TOOBIN: They are Christians. And, you know, there is no central authority of the Jewish faith, but one thing pretty much all of organized Judaism agrees on is that Jews for Jesus are anathema. They are deeply, deeply unpopular with Jewish folks, particularly because they are so aggressive in proselytizing. And they, I think, confuse a lot of non-Jews about whether they are Jewish or not. And Jews for Jesus, I - assuredly, at least according to all of mainstream Judaism, are not Jewish.

GROSS: OK. So Jay Sekulow is on President Trump's legal team. Let's move on to Ty Cobb. What is his role in the defense team, and who is he?

TOOBIN: Ty Cobb is - was a prominent white-collar defense lawyer in the Washington bar. And he has a different role from Jay Sekulow. He is a government employee. He works for the White House. He's a special assistant in the office of White House counsel. And his job is sort of to coordinate the response to the official response - the White House response to the Mueller investigation. Mostly, that involves producing all the documents that Mueller has asked for - all the emails, all the things he has requested as part of his investigation.

He's also coordinating, to a certain extent, the interviews that Mueller wants to do with current members of the White House staff. But he's a government employee. And he has a slightly different interest than Jay Sekulow and John Dowd, who are the outside lawyers who represent Donald Trump, the human being, not Donald Trump, the president.

GROSS: John Dowd is the third lawyer you've written about. What's his background, and what's his role?

TOOBIN: John Dowd is also a well-known white-collar defense lawyer in Washington. Considerably older, he's 76. And he is sort of the lead lawyer for Trump personally. And he's actually a close friend of General Kelly, the White House chief of staff. Both Kelly and Dowd are former Marines. They are roughly contemporaries. And they're both from the Boston area. And that's his connection to the Trump circle. And he has maintained less of a public voice, although somewhat more recently than Sekulow has.

GROSS: Now, John Dowd, the lawyer you were describing, has taken credit for a very possibly incriminating Trump tweet. And the tweet said, I had to fire General Flynn because he lied to the vice president and the FBI. He has pled guilty to these lies. It's a shame because his actions during the transition were lawful. There was nothing to hide. Why is this such a potentially damaging tweet?

TOOBIN: For one specific reason, but it takes a little bit of explanation. Remember James Comey's very striking testimony to the Senate Intelligence Committee. And he - one of the extraordinary meetings he described with Donald Trump took place on February 14 of this year, Valentine's Day. That was the day that there was a group meeting with a lot of important people in the White House in the Oval Office - the vice president, the attorney general, Director Comey.

And after the meeting was over, Trump shooed everyone away except for Comey. So it was a one-on-one. And Comey recounted that the previous day, Flynn had been fired as national security adviser. And the president knew that the FBI was investigating Flynn. And so the president went to Comey and said, look, I wish you could find it to go easy on Flynn. He's a good man. Don't be too tough on him. I'm paraphrasing.

The tweet is significant because it suggested that, at that time, he's telling Comey to go easy on Flynn. The president knows that he has lied to the FBI. So if you tell the FBI director to go easy on someone whom you know has committed a crime, that is potentially obstruction of justice in and of itself. And that's why that tweet is so potentially incriminating. There has been a lot of scrambling on the part of the Trump defense this week to try to explain that tweet.

John Dowd, as you said, said, well, I wrote it. The president didn't write it. And it was sort of garbled. It's unclear how true that is. And one of the many problems that that explanation creates is that it makes John Dowd potentially a fact witness in the Mueller investigation, perhaps, requiring him to get off the case altogether because how he learned the underlying facts that he drafted in the tweet might become worthy of investigation by Mueller. So it's quite clear that, at a minimum, Dowd has made quite a mess of this whole story of, you know, whether the president knew Flynn was under investigation at the time he asked Comey to go easy on him.

GROSS: Well, you know, as Trump's lawyer, Dowd doesn't have to testify against him. But if he's no longer his lawyer and if he's under investigation himself, does he have to spill the beans about everything he knows about Trump and Trump's involvement in this story?

TOOBIN: Well, the attorney-client privilege survives even if Dowd is no longer the lawyer. Anything he told him in the attorney-client relationship is still privileged even if Dowd leaves the defense team. However, you know, planning a tweet, planning a public disclosure is not covered by the attorney-client privilege, I think, under any theory. So he may well be required to talk about what his factual basis was for planning this tweet. It can get very complicated and convoluted over what's covered and what's not by the attorney-client privilege, but once you get into a debate like that, it becomes very difficult for someone like Dowd to remain as a lawyer, which is one of the problems raised by his explanation for that unwise tweet.

GROSS: All right, at this point, we should take a short break. If you're just joining us, my guest is Jeffrey Toobin, and he's been covering the Robert Mueller investigation. In fact, he's writing a book about it now. He's a staff writer at The New Yorker and chief legal analyst for CNN. We'll be right back. This is FRESH AIR.

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GROSS: This is FRESH AIR, and we're talking about the Robert Mueller investigation. My guest is Jeffrey Toobin. He's a staff writer at The New Yorker and chief legal analyst for CNN. He's been writing about the investigation, and he's in the process of writing a book about it.

OK, so you write that the Mueller investigation appears to consist of three areas of inquiry. What are they?

TOOBIN: Well, the first relates to the whole issue of illegal lobbying and the sort of related aspects of it. This is the case against Paul Manafort and his deputy Rick Gates for illegal lobbying on behalf of Ukraine. Michael Flynn was also investigate - under investigation for his lobbying activities on behalf of Turkey, though he wound up pleading guilty to something else. That's one area.

The second area is the area that I think most people are familiar with - is the whole area of so-called collusions. Like, what was the relationship between the Trump campaign and Russia, and people and organizations affiliated with Russia, including, for example, WikiLeaks? So that's the second area.

And the third area relates to obstruction of justice - you know, the question of whether the president's firing of James Comey when the FBI was investigating the president - whether that and related activities constitute obstruction of justice. So you have sort of the whole lobbying investigation, you have the collusion investigation, and you have obstruction of justice. Those are the three areas.

GROSS: What argument is the Trump legal team making about obstruction?

TOOBIN: Well, it's shifted over the past couple of days, and I think there is a certain amount of improvisation and disorder in the Trump campaign. But John Dowd said in a series of interviews that the president can't be convicted of obstruction of justice because he is the head of the executive branch, and the executive branch includes law enforcement, and he is allowed to express his opinions, he is allowed to supervise the executive branch, and he can say anything he wants to the FBI or any other law enforcement official because of his power as head of the executive branch, that it is constitutionally protected from being charged with obstruction of justice.

That was the argument that Dowd made. Ty Cobb sort of backed away from that, saying, well, let's put aside the constitutional argument; the president didn't commit obstruction of justice on the facts. You know, we're going to argue the facts are that there was no obstruction of justice, so we don't have to reach the constitutional question of whether the president has a right to say anything he wants.

GROSS: So they're kind of working both arguments.

TOOBIN: They're working both arguments. And, you know, if I could just talk a little bit about Dowd's argument...

GROSS: That the president can't commit obstruction.

TOOBIN: Right. There's a kernel of a reasonable argument in there, which is that the president cannot be criminally charged while he is in office with obstruction of justice. That is a - related to the larger argument of whether a sitting president can be charged with any crime at all, whether it's obstruction of justice, or bank robbery, or securities fraud or anything. You know, this is a great unresolved question of constitutional law. It's never been settled by the Supreme Court.

There are differing points of view about it. The argument is that the president is so central to the operation of the executive branch that the damage to the country would be so great for - by distracting him with a criminal case that he's exempt while he is in office from being charged. That argument is a reasonable argument, and reasonable people can disagree about it. Where I think Dowd is completely wrong is the notion that Congress cannot impeach the president for obstruction of justice, that he has some sort of immunity from any kind of sanction for obstruction of justice, including impeachment.

And that's clearly wrong as a matter of constitutional law, but also as a matter of history because, you know, the House Judiciary Committee articles of impeachment against Richard Nixon in 1974 referred to obstruction of justice. When President Clinton was impeached in 1998, obstruction of justice was part of the charges against him. And it also is, I think, offensive as a matter of, you know, policy to think that the president has absolutely no limits on his power over law enforcement because he is head of the executive branch. And I think the impeachment - previous investigations reveal that, and I think that's where Dowd's comment was really, entirely wrong.

GROSS: So what do you think Mueller's best case now is that Trump committed obstruction of justice?

TOOBIN: That he fired James Comey to stop the investigation of himself. You know, I think, you know, the news cycle works so quickly that we sometimes move on to the next thing and don't absorb the magnitude of what we have seen. And, you know, the idea that the president of the United States having asked the FBI director repeatedly, you know, am I under investigation? Help me out here. I want your loyalty - that out of the blue then on May 9th, 2017 fires the FBI director and then essentially confesses in a series of interviews, whether first with Lester Holt of NBC and then, you know, in comments that he made to the Russian ambassador that he fired James Comey because he was investigating the Trump campaign, I think that remains a very serious case for obstruction of justice. Now, there are other aspects of the case that reinforce the president's possible liability for obstruction of justice. But the core allegation, firing the FBI director because he's investigating you, remains for me the central aspect of any possible obstruction of justice case against the president.

GROSS: You know, it's just - if the president did obstruct justice like that to protect himself, what does it say if he can't be held responsible for that until he leaves the White House?

TOOBIN: Well, he can be held responsible, by the House of Representatives, by impeaching him. And that's, I think, the proper forum for it. Now, we are at a political moment where, certainly, the Republicans in charge of the House of Representatives will never investigate the president for obstruction of justice in an impeachment proceeding. But that's not to say that's the right decision. But I don't think it's accurate to say that, well, he can obstruct justice and then there are no consequences. Impeachment is a very serious consequence, and it is available to the House of Representatives today. It's just that they choose not to exercise it. But constitutionally and legally and politically, they could do it tomorrow.

GROSS: So the fact remains that it's possible that the president could have obstructed justice and face no consequences while he's in office?

TOOBIN: Absolutely. And impeachment is much more a political process than a legal process. And it is no coincidence that the only two successful impeachment investigations - Richard Nixon in 1974, and President Clinton in 1998 - took place when the House of Representatives was under control of the opposition party. And even then they were less polarized times than we are now. Now, you know, we have, you know, a House of Representatives that is very much still enthralled to President Trump and, thus, they may not investigate him for obstruction of justice. But that's a political problem, that's not a constitutional problem. Under the Constitution, they have every right to do that. They're just at the moment - and likely, in the future - not exercising that right.

GROSS: My guest is Jeffrey Toobin, who has a new article about the Mueller investigation in the current issue of the New Yorker, where he's a staff writer. He's also CNN's chief legal analyst. After we take a short break, we'll talk about possible crimes the Mueller investigation could reveal and why collusion is not one of them. And Justin Chang will review the movie that will represent Israel at the Oscars in the category of best foreign language film. I'm Terry Gross, and this is FRESH AIR.

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GROSS: This is FRESH AIR. I'm Terry Gross, back with Jeffrey Toobin. We're talking about the investigation by Special Counsel Robert Mueller into the Russian government's efforts to interfere in the presidential election and any links and or coordination between the Russian government and individuals in the Trump campaign. Toobin has a new article about the investigation in the New Yorker, where he's a staff writer. He's also CNN's chief legal analyst.

So when we left off, we were talking about the possible charges that Mueller could bring against President Trump. And one of them - well, one of them is collusion. Except for Trump's team is saying - and a lot of people agree - that collusion isn't legally a crime, per se.

TOOBIN: You know, this was the reason, Terry, I started to write this story in the first place because - the New Yorker story - because I was curious about this question. You know, is collusion a crime? Everybody's been talking about the relationship between Russia and the Trump campaign. And there is a criminal investigation led by Mueller. But what's the crime? What is the possible charge that could be brought against the president or anyone in his circle for the relationship with Russia? And that's the heart of my piece, and that's the question that I sought to answer.

GROSS: So what do you think is the heart of the crime?

TOOBIN: Well, it's a hard question. I mean, collusion itself is not a crime. The two possible crimes that I saw that people in the Trump campaign might have committed - and I warn people, we're - I'm going to get into the weeds a little bit here, but I'm going to try to translate it into English. Is - there's no such crime as collusion, but there is a crime called conspiracy. But it has to be a conspiracy to violate some law on the books. Well, there is a law on the books that says it is illegal for anyone to solicit or receive campaign contributions from non-Americans, from foreigners.

One of the aspects of the collusion investigation is the relationship between the Trump campaign and WikiLeaks. WikiLeaks is a non-American institution. If you believe that - and contributions are defined as cash but also in-kind contributions. If you believe that the Trump campaign, in its emails and in its relationship with WikiLeaks, solicited in-kind campaign contributions from WikiLeaks, a foreign operation - that is potentially a crime. The solicitation of in-kind campaign contributions from a foreign entity, WikiLeaks, that's potentially a crime.

The other area where there's potentially a crime related to collusion is - relates to the hacking, the underlying hacking of the Democratic National Committee and of John Podesta's emails. If you believe that the Trump campaign - and there is some evidence for this - encouraged that hacking, encouraged the distribution of that criminally source material - it's, of course, illegal to hack anyone's emails - that could be the crime of aiding and abetting hacking. So the two possible theories of collusion as a crime that I identified with the aid of experts was conspiracy to solicit and receive illegal campaign contributions from foreigners. That's one. And the other is aiding and abetting the hacking of emails. That's two.

GROSS: So they both have to do with the emails?

TOOBIN: They both have to do with emails, correct.

GROSS: And with WikiLeaks?

TOOBIN: And with WikiLeaks. And there are problems with those theories. I don't want to pretend that those are, you know, obvious...

GROSS: But what are the problems?

TOOBIN: Well, the problems are - the core of the problem is, you know, any time a criminal case is brought, especially white-collar cases, the question arises is, how did you know it was illegal what you were doing? And, you know, it is quite possible that the Trump campaign officials could say, I didn't know it was illegal to go to WikiLeaks and say I'd like their emails. They were just another source that was coming to us and offering us information, and we said, sure. That is a potentially - a plausible defense.

And the usual way that prosecutors get around that defense is they show what's called consciousness of guilt. They show someone destroyed documents. They show someone lied about what the nature of their contacts were. There isn't that evidence that I've seen yet. So the argument that you couldn't prove criminal intent on the part of the Trump campaign because they didn't know this conduct was illegal - that's a serious impediment to bringing a case like this.

GROSS: So the aiding and abetting part, how sound a case might that be?

TOOBIN: Well, the problem with that case is that it's quite possible, indeed, likely, that the hacking itself - the invasion of the DNC emails and John Podesta's emails - took place before the Trump campaign even knew about it. The actual hacking had nothing to do with the Trump campaign and that their involvement only came later were they encouraged the distribution of the emails. And there is an unresolved legal question of whether aiding and abetting can take place after the underlying criminal activity, the hacking.

You know, usually, aiding and abetting takes place at the same time as the underlying crime. If you drive the getaway car for a bank robbery, you're aiding and abetting bank robbery because it's all one enterprise. But if you merely encourage the distribution of material that's been stolen months earlier, it's not clear legally that that is aiding and abetting.

GROSS: Well it might not be aiding and abetting, but is it legal to use material that, you know, has been stolen - private material that you know has been stolen through a hack? Is it legal to you - take that and use it for your own self-serving reasons, even though you didn't aid and abet the hacking itself?

TOOBIN: Well, again, that is an unresolved legal issue. But it also runs into First Amendment problems because, you know, the press - those of us in the press, we get material that is sometimes illegally obtained - you know, emails that are leaked that shouldn't be leaked, stuff that's not in our - that we don't have a legal right to and other people may have obtained legally. We then publish it because we believe we have a First Amendment right to. So are we then aiding and abetting the underlying hacking? Again, unresolved legal question, but one that I think would give prosecutors pause by - because of, you know, what it said about, you know, the broader issue of obtaining illegally obtained material.

GROSS: You made the press analogy, the press is reporting on information. To make this comparison in the Trump-WikiLeaks case, would you have to say that WikiLeaks is a journalistic organization and that therefore, what they have, you know, published is fair game?

TOOBIN: Right. I mean, again, this is another complexity - is, like, the status of WikiLeaks is an unresolved question that has deep legal significance as far as this investigation is concerned because, you know, if there is, under the campaign finance laws, an explicit exception for news organizations - like, you can't charge CBS with a crime for giving favorable coverage to Donald Trump. You can't charge The Kansas City Star with a crime for making campaign contributions in the form of favorable coverage.

So the question is, can you charge WikiLeaks with a crime for aiding - for conspiring to give illegal campaign contributions? And can you charge others with soliciting WikiLeaks - which is also a crime if WikiLeaks is not a news organization - but what is WikiLeaks? That's an unresolved factual and legal question.

You know, the director of the CIA, Pompeo, gave a speech in April that said, you know, WikiLeaks, let's not be confused about WikiLeaks. WikiLeaks is a non-state actor doing Russia's bidding. That's the view of the CIA. But WikiLeaks says, we're journalists; we're doing the same work that NPR and that The New Yorker is doing; we're getting facts and getting them out to the public.

If WikiLeaks is, in fact, a press organization, none of these theories involving WikiLeaks for criminal liability work. But if WikiLeaks is essentially part of the Russian government or an affiliate of the Russian government, then potentially, these criminal cases could proceed if you could prove to a jury beyond a reasonable doubt that what WikiLeaks really is - and that gets into very difficult questions of proof because, you know, it's - these are really hard questions in terms of what WikiLeaks is. And when you get into jury questions, juries like simple cases and simple answers. And, you know, the murkiness is always to the advantage of defendants.

GROSS: OK, why don't we take a short break here? If you're just joining us, my guest is Jeffrey Toobin, and he's been covering the Mueller investigation for The New Yorker and CNN, and he's writing a book about the investigation. We'll be right back after a short break. This is FRESH AIR.

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GROSS: This is FRESH AIR. And if you're just joining us, my guest is Jeffrey Toobin, who is a staff writer at The New Yorker and chief legal analyst for CNN. He's been covering the Robert Mueller investigation for both places. He's also writing a book about the investigation.

Is it legal for a presidential campaign to work with a foreign government - i.e., Russia - to get help to win the race?

TOOBIN: It is illegal for a political campaign to receive in-kind campaign contributions from a foreign government or a foreign company or a foreign person. But, you know, again, I'm sorry to be a legal nerd with you here. You can't just say work with. It has - what's illegal is to receive campaign contributions from a foreign government. And in order for the criminal law to be implicated, you have to see the question as a campaign contribution, not just working with a foreign government.

GROSS: If Russia was interfering in the U.S. election and the Trump campaign was working with Russia in conjunction with them, would that be a crime? Because, you know, foreign powers are not supposed to interfere in American elections. So if you're cooperating with a foreign power who's interfering in American election, is that a crime?

TOOBIN: Well, you have to specify which crime it would be, and that's...

GROSS: Treason - would that be treason?

TOOBIN: Well, you know, treason is defined in the Constitution as making war against the United States. And, you know, I don't think that that would be treason, although that would certainly be one ground for investigation. I think, you know, you have to specify which statute would be violated. I mean, you know, the traditional way that our government responds to misconduct by other governments is diplomatically and militarily.

I mean, is that, you know, the - when Russia does something bad to the United States, you know, or another country does, you know, we respond with trade sanctions. We respond by breaking off diplomatic relations. We respond by having a war. We don't bring Russia into our criminal courts. We don't sue them. That is not the way countries, by and large, interact. So the question is, what criminal law would be violated by Americans who coordinate with Russia in - who work with Russia in trying to influence the United States election? And that's where you have to go through the specific statutes.

GROSS: So if - you know, as you're saying, there has to be conspiracy to break a certain law, and one of the laws that might've been broken are - have to do with financial issues. So what are some of the financial issues that you think the Mueller team is investigating?

TOOBIN: Well, there are many unanswered questions about Donald Trump's personal finances. They are not directly related to the campaign in the way that illegal campaign contributions are, but the whole question of how Donald Trump made his money has raised many questions. You know, who was buying apartments in Trump's real estate empire? What were the financial arrangements behind his decision to build a hotel in Azerbaijan? You know, why did a Russian oligarch apparently overpay him by tens of millions of dollars for a piece of real estate in Palm Beach?

All of those questions are potentially within the purview of the Mueller investigation. They are not directly related to the 2016 campaign, but if you believe that you can't understand what went on in the 2016 campaign without understanding Donald Trump's relationship to Russian financial interests then those questions very much are within Mueller's purview.

GROSS: So since Mueller's investigation is a criminal investigation, if he presses charges against the president, would that end up in a jury sitting in judgment of the president?

TOOBIN: Well, it would if the case went to trial. And the first thing the president's lawyers would certainly do if there was a criminal charge would be to move to dismiss the case on the ground that a sitting president can't be indicted among other crimes. So, you know, it would be many, many months of legal wrangling before the case went to a jury. But, yes, ultimately if the case went to trial it would be before a jury. But, yet again, that goes back to the constitutional argument that a sitting president cannot be forced to sit in a criminal courtroom as a defendant while he is president because it is too much of a distraction from his duties. You know, we've been talking about the possibility of a criminal case against Donald Trump. I do think there's a middle ground that is far more likely than Mueller simply folding up his tent and saying there's nothing here and indicting the president like an ordinary criminal.

GROSS: What's the middle ground?

TOOBIN: The middle ground is what Leon Jaworski did, the Watergate special prosecutor. It's what Kenneth Starr, did the Whitewater special prosecutor. It's for the independent counsel, which was what Starr was, the special counsel, which is Mueller's title, to write a report and to say we believe based on our investigation that Congress may find impeachable offenses in the following areas for the following reasons. And then simply turn that report over to Congress. That, I think, is well within Mueller's purview. It is constitutionally entirely appropriate, and it makes the decision. It puts the decision, I think, where it really belongs, in the political arena, of whether the House of Representatives wants to impeach Donald Trump.

So I think, you know, yes, it is an interesting theoretical constitutional question about whether Donald Trump or any president can be indicted. But I think the far more likely outcome of the Mueller investigation is a report to Congress where he essentially dumps the whole problem in Congress's lap and says, this is up to you if you want to impeach. If you do, help yourself. If you don't, help yourself. But that, I think, is both legally, politically and prudentially the right approach for an outside counsel like Mueller.

GROSS: Well, Jeffrey Toobin, it's great to talk with you again. Thank you so much for coming back to FRESH AIR.

TOOBIN: Thanks, Terry.

GROSS: Jeffrey Toobin has an article about the Mueller investigation in the current issue of the New Yorker, where he's a staff writer. After we take a short break, Justin Chang will review the new Israeli film, "Foxtrot." This is FRESH AIR.

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