There’s a been a steady drumbeat of Democratic – and to a much lesser degree Republican – condemnation of President Donald Trump following the partial release of former special counsel Robert Mueller’s report on 2016 Russian election interference. Colorado Attorney General Phil Weiser sat down with RealVail.com recently to talk Mueller and many other topics.
Weiser, a Democrat who is the former dean of the University of Colorado Law School and worked in the Obama administration Justice Department, weighed in on the Mueller report, Russian interference and the dangers facing the 2020 presidential election. Weiser spoke following the U.S. Attorney’s Law Enforcement Conference at the Vail Marriott on April 25.
Leading up to the interview with Weiser – an outspoken Trump critic during his own campaign last year – some Republicans were breaking ranks, with former Massachusetts governor and current Utah Sen. Mitt Romney saying he was sickened by the level of Trump administration dishonesty revealed by the Mueller report. Trump’s son-in-law and top advisor had just dismissed the report, calling the Russian campaign “a couple of Facebook ads.”
But former head of Homeland Security Kirstjen Nielsen was so alarmed by the threat to the 2020 elections that she tried to get the president to make it a top priority – only to have other cabinet secretaries warn her off before her resignation. Even typically Trump-friendly Fox News got in on the act, with commentator Andrew Napolitano calling Trump’s behavior as outlined by the Mueller report “immoral, criminal and defenseless.”
The day after the Weiser interview, FBI Director Christopher Wray warned of a wide array of renewed Russian attacks on American democracy ahead the 2020 presidential election. And on Monday, it was revealed Trump loyalist and current U.S. Attorney General William Barr may refuse to testify before House of Representatives as the administration halts all cooperation.
Here’s an edited Q&A with Weiser:
RV: Does the Mueller report lay out a convincing case of obstruction of justice and the possible need for the U.S. House to open up impeachment hearings?
Weiser: First, Congress needs to get a [full] copy of that redacted Mueller report, or at least those on the Intelligence Committee or the Judiciary Committee, because there’s a lot of potentially very relevant information that no one’s seen yet,” Weiser said. “It is very likely that Bob Mueller will testify before the Judiciary Committee. Congress, I believe, is and should investigate further.”
RV: Would the unredacted report make an even stronger case for obstruction of justice?
Weiser: One of the more interesting [things] is really about Don McGahn, the former White House counsel, who did testify to Mueller and that information kind of ran throughout the whole report. The other thing which is interesting about Don McGahn is he testified without the president invoking executive privilege at that time. The idea the president would then later invoke executive privilege for him to talk about the same thing to Congress strikes me as a very difficult argument to sustain. And it would really be just a stalling tactic.
Weiser: The president may say, “Fine, I’ll just try to stall it.” But I think that would show to the American people that this administration is not interested in operating in good faith and there is an effort to withhold cooperation or even sunlight on what exactly happened. [Former Sen.] Howard Baker said during Watergate, “What did the president know and when did he know it?” So what does the president [Trump] know about efforts to obstruct or undermine the investigation or what did the president actually say about doing it?
RV: Do you think Trump obstructed justice?
Weiser: We may be in a very interesting and awkward situation where the reason that let’s say full-on obstruction of justice didn’t happen is because people like Don McGahn refused to do what the president ordered. So had the president’s orders been followed, he would have obstructed justice. But because enough people acted with respect for the rule of law, it didn’t happen. If there ever was a technicality you could win on, that’s quite an interesting technicality.
RV: But you don’t actually have to be successful in order to obstruct justice, do you?
Weiser: Well, here’s the question: is giving an order to your White House counsel, let’s say to fire Bob Mueller, that your white house counsel doesn’t follow, can the action of giving the order itself be said to be obstructing justice? I don’t know that it would because the activity didn’t actually happen. So this is a debatable legal question. Had [Trump] fired Bob Mueller, people widely say that looks like that would be obstructing justice. Now he did fire [former FBI Director] Jim Comey, who refused to lay off of investigating [former National Security Advisor] Michael Flynn. And so that is an action that’s out there and this is an important conversation. What is ultimately going to happen in one shape or form is the 2020 presidential election will include an element of, do we want someone as our president who respects the rule of law or not?
RV: Underlying the entire Mueller report is the Justice Department guideline preventing the indictment of a sitting president. Do you wish the report made a stronger case for indictment?
Weiser: I think that that exists for sound reasons — that the indicting of a sitting president would disable the government from functioning. The remedy for wrongdoing by a sitting president is impeachment. And, ultimately, it’s political, not just in the impeachment process, but in the election process. So that’s the remedy. The law enforcement system should not be used to take out a president.
RV: But if this was anyone other than the president …
Weiser: Where Mueller went with this was interesting, which is he didn’t want to say specifically because he wasn’t indicting, whether these actions if taken by someone who was not president would have been illegal and worth prosecuting, I believe the hints are there that they would be, but he withheld saying that. And I think that’s appropriate too because he left this up to Congress to take this and to follow through on it. And Congress has that obligation to do that, and I believe they will do it.
RV: Impeach or just continue to investigate?
Weiser: Where they end up landing will depend a little bit on how this investigative process goes and what their appetite is for moving it forward. It is obviously concerning that so many in the Senate have said, “I’ve made up my mind, we’re not going to vote.” You may remember when the [President Bill] Clinton impeachment happened [in 1999], which was … closer in analogy to what happened with [porn star] Stormy Daniels [and Trump] and that whole episode than anything else, or maybe … closer to the [former Trump lawyer] Michael Cohen campaign finance issues in terms of how to think about those. In any event, what did [former Sen.] Robert Bird say? He said to President Clinton, “Don’t tamper with this jury.” He said, “We have a constitutional obligation if we are going to be facing a process that is a legal process; we have to allow that process to run its course. [The Senate voted to acquit Clinton].
RV: What should this Senate do in the case of Trump?
Weiser: If [Colorado Republican Sen.] Cory Gardner or other Republican senators would say, “It’s up to the House whether to have impeachment, that’s their decision. If that is deemed just-worthy enough, our job is to act as a jury and we will act appropriately,” I think that would be a more temperate rule of law line.
RV: Is that realistic with this Republican-controlled Senate that has bent over backwards to protect Trump?
Weiser: We’re living in a time when we can’t count on the rule of law because there are so many forces that are trying to politicize these matters, and part of what ultimately is the remedy to that is democratic elections where people hold accountable those who aren’t committed to the rule of law.
RV: The public seems very frustrated because it feels like the president can literally get away with anything.
Weiser: Well, that’s only going to be true if he wins in 2020. If President Trump loses in 2020 in part because he has shown a willful disregard and even contempt for the rule of law, the ultimate remedy is he loses the presidential election.
RV: Should that be the primary focus of Democrats in the 2020 campaign?
Weiser: I think the Democratic Party would be wise not to only run on that issue. I don’t believe that is a sufficient issue, but I also believe we can’t ignore things like the Affordable Care Act. The case that I’m involved in, the reports are that the White House ordered the Justice Department to not defend the law but to argue the law is invalid. I would view that as also problematic from a rule of law standpoint.
RV: Every U.S. intelligence agency and Robert Mueller concluded the Russians interfered in the 2016 election to tip the scales in favor of Trump. How fearful are you that we’re going to see a repeat in 2020 because the current administration is not taking this threat seriously enough?
Weiser: There are lots of different elements of the Mueller report and the 2016 election that are worth being scared about. The foreign intrusion on our elections is high on the list because there’s not a willingness by administration to fully acknowledge the extent to which the Russians sought to influence the election. There hasn’t been a full effort to protect the integrity of our elections.
RV: Does that mean Colorado’s elections are vulnerable?
Weiser: My job is here in Colorado, and here I have an extraordinary advantage, which is we have, I believe, the platinum standard for election security. We have paper ballots mailed to everybody with a paper record. That’s the best you can have. And for places that are, let’s say, relying on interconnected systems with the ability to have them be compromised, I’m terrified about what can happen. We need to be having a conversation nationwide about election security where we in Colorado would be held up as one of the models, and the goal of our election should be to enable everyone to vote as easily as possible and to have the votes as secure as possible.
RV: What sort of contact have you had with the federal government to that effect?
Weiser: We in Colorado have a model system and we should be proud of it. Other states should be looking at and say, “How do we learn from Colorado?” That would be the world I’d like us to be in, and in the best of all worlds, the [U.S.} Department of Homeland Security would be preaching that same story.
RV: Apparently [former Home Security Secretary] Nielsen tried to have that conversation with Trump but he wasn’t listening because aids say he feels any acknowledgment of Russian interference undermines his 2016 win.
Weiser: That was a painful report to hear — that she was worried about it, wanted to do something about it, and was basically disabled from doing so.
RV: What else worries you ahead of 2020?
Weiser: The other point here that’s worth noting is the social media platforms and how vulnerable they are to being exploited and hijacked in ways that undermine democracy. Facebook is in the process of taking this more seriously now — at least that’s the word that [Facebook founder] Mark Zuckerberg is saying. We have to see where that goes as well because the idea that whatever you want to call them, sock puppets or robots, are going to seek to hijack or undermine voter sentiment is scary. It’s not an easy issue to address, but clearly Russia sought to take advantage of it and we need to make sure that if there are lessons to learn, we learn them.