michael barbaro

From The New York Times, I’m Michael Barbaro. This is “The Daily.” Today: Once the special counsel’s report has been released, it’s up to Congress and its oversight committees to determine what happens next. As head of the Judiciary Committee, much of that will fall to Representative Jerry Nadler. Part 3 of what to expect from the Mueller report. It’s Tuesday, March 12.

archived recording (erin burnett)

And good evening. I’m Erin Burnett. OutFront tonight: The biggest threat to President Trump. His name — and it’s a person — is Jerry Nadler.

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Jerry Nadler.

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Jerry Nadler.

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Jerry Nadler of New York, the Democratic head of the House Judiciary Committee.

archived recording (erin burnett)

The committee with the power to lead impeachment proceedings against the president of the United States.

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He is investigating, quote, “allegations of obstruction of justice, public corruption and other abuses of power.”

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Democrats, led by House Judiciary chairman Jerry Nadler, are carpet-bombing the White House with document requests.

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He is now facing a brand-new investigation, the widest since the launch of the Mueller inquiry.

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This has given folks at the White House an idea of what they’re in for the next two years or so as Democrats lay the groundwork for 2020 and a possible impeachment.

representative jerry nadler

Testing, 2, 4, 6. Testing, 3, 6, 9. Testing, 4, 8 12. We can do the 5s.

speaker

Let’s hear it! [PHONE RINGING]

michael barbaro

Hello. Congressman?

representative jerry nadler

Hi.

michael barbaro

Hi. How are you?

representative jerry nadler

O.K. How are you?

michael barbaro

Good. Thank you again for making some time for us. We really appreciate it.

representative jerry nadler

You’re quite welcome.

michael barbaro

So Congressman, over the last couple of weeks on “The Daily,” we’ve explained to listeners how the Mueller report will be released. It goes to the attorney general. The attorney general then releases a report on the report that goes to Congress. And we’ve explained that it will either say we have evidence the president committed a crime, or we don’t have that evidence. We wanted to talk to you about what happens when that report gets to you.

representative jerry nadler

We investigate further. The fact that he committed a crime is of great interest. It’s not necessarily a guarantee of impeachment. Those are two different tests, as you know. We have a responsibility well beyond the Mueller report. We have an obligation to do our own work. The Mueller report is only for what happened with respect to Russian interference in the election and with complicity by Americans in that interference and what crimes were committed and by whom. We have to be considerably broader. I mean, that’s part of our work, but our basic work is to provide for the rule of law, make sure that the rule of law is protected. That means that we have to look into obstruction of justice, into corruption, into abuses of power. And certainly what Mueller is looking into is part of that, but we have to be much broader.

michael barbaro

You said that a Mueller report that says the president committed a crime is not necessarily grounds for impeachment. Can you help me understand what you mean by that? What’s a scenario in which the Mueller report says the president committed a crime but wouldn’t equal impeachment, necessarily, in your mind?

representative jerry nadler

Well, you have to understand that not every crime is an impeachable offense, and an impeachable offense needn’t be a crime. There are two different tests. So for example, if the Mueller report were to show that the president committed perjury with respect to money laundering five years ago in some scheme in New York to cheat — I don’t know. That would not be impeachable, because impeachment is an abuse of presidential power for the purpose or with the effect of aggrandizing power to the executive, of damaging liberty or the structure and functioning of government, the separation of powers. That’s what’s impeachable. Also, corruptly obtaining an election would be impeachable. But crimes that don’t bear on that would not be impeachable. So I said 20 years ago that the president’s perjury about a private sexual affair was not impeachable. And if President Trump were to be shown to have perjured himself about some business deal, that would not be impeachable. But if he were shown to commit perjury or to do something else that affected the structure and functioning of government or democratic rights or the integrity of elections, that would be impeachable.

michael barbaro

So what do you do if the Mueller report says that the president committed a crime like money laundering five years ago but did not commit what you see as an impeachable offense?

representative jerry nadler

Well, if the president was shown to have committed a crime of money laundering five years ago, I would hope the New York — he should be prosecuted for that.

michael barbaro

In New York, right?

representative jerry nadler

Yeah, in New York, by the federal Southern District of New York or by the New York authorities or both, period. That’s the criminal justice system. Now the Justice Department maintains, wrongly in my opinion, that a sitting president cannot be indicted while in office, so they will not indict a president for committing some crime. I think it’s the wrong policy. I think they should be able to indict a president while he’s in office, but that’s not the real function of what we’re doing in our committee. Our committee’s job is not a criminal justice job. That’s up to the Department of Justice. That’s up to the New York state authorities. Our job is to protect the structure of democratic government and the liberties of the people. If the president committed a crime that has nothing to do with this, well, he ought to be prosecuted, but that’s not our business. We’re not a law enforcement agency.

michael barbaro

O.K., well, let’s flip this around and say the Mueller report finds that the president committed a crime that is absolutely grounds for impeachment. What do you do then?

representative jerry nadler

Well, we have to further investigate it. Let’s put it this way. We have to do all these investigations now that we’re starting to do focused on obstruction, corruption, abuse of the power structure, et cetera. If we find that the president is guilty of that, then we have to decide what we can do about it. Impeachment is one option. But impeachment is the decision to be made further down the road, and it’s a very high bar. But it certainly would be on the table if we were to find that.

michael barbaro

Do you know what the bar is in your mind?

representative jerry nadler

Yes, and I’ve said it many times. I think there’s a threefold test for impeachment, really. Number one, has the president committed impeachable offenses? Number two, are those serious? And if the answer to the first two is yes, I think there’s one further test, and that is impeachment cannot be partisan. What you don’t want to do is divide the country so that half the country thinks for the next 30 years, we won the election. You stole it from us. You don’t want to embitter the country. The situation has to be such that you believe when you start the impeachment proceeding that the evidence you have is so persuasive of such terrible deeds that once the evidence is laid out, an appreciable fraction of the voters who voted for Trump will reluctantly say you had to do it. You’re not just trying to steal the election.

michael barbaro

But the first two conditions you laid out — is it impeachable, is it serious — those feel quite subjective. So I wonder if any argument to impeach will inevitably feel partisan and therefore make your third —

representative jerry nadler

Any argument —

michael barbaro

— condition hard, which is consensus?

representative jerry nadler

— to impeach is going to be political. Impeachment is a political task, and it’s intended to be by the Constitution. Yes, it’s going to be subjective. All political decisions are subjective. I shouldn’t say that. Almost all political decisions are subjective. But if this occurs, people are going to be on both sides, and some people will think you’re fair, and some won’t. But you have to really depend on the facts that you have at that point. You have to have very strong proof of very dire facts. And by the way, let me just step back. I’m a little concerned that we’re talking too much about impeachment. Our goal is not impeachment. Our goal is what I said a few minutes ago, to protect the rule of law, to protect the structure and functioning of government, to protect our liberties. That’s the basic goal. And if we can do that without impeachment, fine. If we have to do impeachment and if we meet the requirements so that we think we can do it, also fine.

michael barbaro

Understood. I want to ask you about some of the comments you have made ahead of the release of the Mueller report. You were asked a question, and in your response you said that you believed the president obstructed justice. And I wonder why you would —

representative jerry nadler

Let me say the following. I think there is a lot of evidence the president obstructed justice, but we have to go a lot further. We have to know a lot more.

michael barbaro

But I wonder why you would say that publicly before the release of the Mueller report. What’s the value in doing that? Does it not inherently portray whatever investigation —

representative jerry nadler

Well, I believe in answering questions honestly. I was asked the question. I didn’t volunteer it. I was asked the question, and I said yes, I think certain things which —

michael barbaro

Right, and —

representative jerry nadler

— are in public view —

michael barbaro

— I like asking questions, but why not say, let’s wait until the Mueller report comes out?

representative jerry nadler

Well, maybe I should have, but the fact is I think certain things that are in the public record make a strong case that there was obstruction, and other people say the same thing. But a strong case is not proof. Actually, I shouldn’t say a strong case. A lot of evidence is a better way of putting it. That’s not necessarily proof, and certainly not enough to convince the country at this point, and we have to have a lot more evidence and a lot more facts, and we need to know what the Mueller report said, and we may need to know a lot more than what the Mueller report says.

michael barbaro

So re-asking the same question now that I think you were asked about 10 days or so ago, do you believe the president obstructed justice?

representative jerry nadler

I think there’s a lot of evidence that he obstructed justice, and Mueller will tell us a lot more about that, and that’s one of the things we have to know.

michael barbaro

Are you concerned — and I appreciate you saying that maybe you shouldn’t have said it — but are you concerned that people will see this as a preconceived judgment? I know that at least some of your colleagues, like Jim Jordan, do see it that way heading into these investigations.

representative jerry nadler

No matter what I say or do, they’re going to say that. It’s the Republican strategy to say I decided to impeach the president the day after the election. It’s just an intent to distract. We haven’t decided. I haven’t decided to impeach. Some people have said that when I say, especially that third requirement, that’s a very high bar — and some people have said it may be an impossible bar. It may be. The three tests that I have said I didn’t invent. When we had the Clinton impeachment and I was a junior member of the committee, the first thing I did was to try to get my hands on everything that’s been written from Blackstone onward as to what’s an impeachable offense. But the second thing I did 20 years ago was I demanded that before we held hearings of the committee on fact, that we first hold a hearing on what’s an impeachable offense. And even though I was a minority member of the committee, I persuaded people, and we did that. And so what I’ve been talking about is basically what I got from that. I didn’t make up this test.

michael barbaro

Well, Congressman, I do have to point out that you said that we were talking too much about impeachment, but now you are talking about impeachment.

representative jerry nadler

O.K., fair enough. But what I’m trying to say is we’re not focused on that. We will take the facts where they lead, and we’ll see.

michael barbaro

I want to stay with the topic of Mueller for a moment. You and your colleagues have held up Robert Mueller as a kind of gold standard of objectivity and fairness in all of this, as somebody who has the integrity, the background to kind of handle this properly. You have a lot of faith in him. Do you agree that there is basically no path to impeachment — sorry to use the word again — if the Mueller report finds no crimes?

representative jerry nadler

No, not necessarily. It depends what else we find. It depends what else is going on. There may be a lot of other things that we have to look into and that may be very damning.

michael barbaro

And as you said earlier, there is such a thing as an impeachable offense that is not a crime. Can you help us understand —

representative jerry nadler

Yes, they’re quite different tests.

michael barbaro

— what that might look like?

representative jerry nadler

O.K. An impeachable offense is not a crime. Well, misuse of the pardon power, for example, misuse of other powers of the presidency. It is not true, as Mayor Giuliani has said and as a lot of other people have said, that the president has the absolute right to do this, and therefore if he does this, it cannot be wrong. The president has the right to do certain things.

michael barbaro

Pardons, you mean.

representative jerry nadler

For example. The president has the absolute right to pardon anybody. But if the president was shown to pardon somebody in return for a $50,000 check, that would be a crime. It would also be an impeachable offense.

michael barbaro

Or to obstruct an investigation.

representative jerry nadler

Or to obstruct an investigation — in other words, if it were shown for a corrupt motive. So the motive is what counts in a lot of these things.

michael barbaro

So in November of 2016, right after President Trump was elected, you called for then-F.B.I. director James Comey to be forced out of his job because of how he handled the investigation of Hillary Clinton and his decision not to charge her with a crime yet still detail her wrongdoing for the public. We all remember that news conference and how that worked, and you called that unforgivable. If Robert Mueller says no crime has been committed when it comes to the president, would you, as head of the Judiciary Committee, still try to bring forward to the public the information behind the Mueller investigation? And if you were did you that, I wonder what’s different in your mind between what Comey did and what you would be doing?

representative jerry nadler

Yes. There’s a fundamental difference. The Justice Department has a very salutary general policy, and that is if you don’t indict somebody — why don’t you indict somebody? You didn’t have the evidence, obviously. You’ve investigated so and so. You’re not indicting her or him. You don’t comment negatively. You should, in a case of public notoriety, you should announce we’ve investigated. We’re not indicting him. That’s fine. But you have a policy, which the Justice Department does, that the president cannot be indicted no matter how much evidence just because he’s the president. Therefore we can’t comment on evidence against him or anything else. Then you’re converting a normally good policy into a cover-up, and you’re depriving Congress of its ability to hold the president accountable. You, the Justice Department, won’t hold him accountable because you’ve said you have no right to. You can’t indict him. That leaves only Congress, and now you’re going to deny Congress the right to the information. That makes the president unaccountable and above the law, and that cannot be.

michael barbaro

But just to be clear, if Mueller says no crimes, the public still needs to see the evidence regardless, because the rules are different here.

representative jerry nadler

No, the public needs to see the evidence, number one, so it can be confident that it’s true. We’ve tried to protect Mueller because by all accounts he’s an honest guy, et cetera, et cetera, and the investigation has to proceed. But whatever he says, we can’t take it on faith. We don’t operate that way. We shouldn’t take things on faith. And if he says the president has committed crimes, we should know what the evidence is. If he says the president hasn’t committed crimes, we should know what the evidence is. And if the president hasn’t committed crimes but has done terrible things that he knows about, we should know that too. Or if the president has done nothing wrong, we should know that. The public has a great interest in the president, obviously.

michael barbaro

So I just want to be very clear on why the case of Comey is different from the case of Mueller in terms of using —

representative jerry nadler

Essentially because when he announced that he wasn’t indicting Hillary, it was because he thought there wasn’t enough evidence to indict Hillary, the normal reason you don’t indict somebody. If Mueller decides not to indict the president, then the public ought to know that and hear that and see the evidence on which he bases that.

michael barbaro

So I want to talk to you, Congressman, about the politics of all of this and what the path forward might mean for the Democratic Party, because, as you know, the Republican Party has stood solidly behind the president this entire time. They have not budged at all. If Robert Mueller says at the end of the day that no crimes have been committed by the president, but your committee and others continue to investigate the president, are you concerned that this will inflict even more damage and partisanship on an already pretty divided and highly partisan American public —

representative jerry nadler

Not if we do it responsibly —

michael barbaro

— and maybe hurt the Democratic Party in the process?

representative jerry nadler

Not if we do it responsibly. Congress must hold the executive accountable. And that is with respect to crimes. It’s respect to bad deeds. It’s respect to corruption, et cetera, and it’s respect to policy. We have to provide the accountability, and we have to let the American people know what is being done in their names, and let them judge.

michael barbaro

But how do you explain to the American people, who are pretty exhausted by all this, why you’re going to keep pursuing an investigation after Mueller —

representative jerry nadler

Well, it depends what he says and how much he covers, and that will help determine how much we have left to do. And the answer is that we can’t rely on others to do the work for us. We have an obligation to do our own work. That’s why we were elected. And at the end of the day, the American people decide not the week after Mueller releases his report but election day next year whether we have acted responsibly or irresponsibly in a partisan or reasonable way.

michael barbaro

Well, would you put your belief in the need to pursue the facts over the short-term well-being of the Democratic Party if those two things seem to turn out to be at odds with one another and in conflict?

representative jerry nadler

I think it’s my constitutional duty to do so.

michael barbaro

This may sound a little corny, but in this moment, with everyone waiting for what’s next, what message do you want to give to Americans on what we can see as kind of the eve of the Mueller report?

representative jerry nadler

What message? That, one, we have an administration that has attacked the institutions of government and of liberty on which we depend on in fundamental ways, and we have to rein it in. We have to make sure that the separation of powers is maintained and that liberty and the rule of law is maintained, and that the Mueller report will give us hopefully a lot of information, but that Congress has to do the job we were elected to do. And that the administration has to understand that the American people elected a Congress that wants to hold the administration accountable, and we will do that, and the Mueller report will help us do that to a greater or lesser extent, but it’s fundamentally our job.

michael barbaro

Congressman, thank you for your time. We really appreciate it.

representative jerry nadler

You’re welcome. Take care.

michael barbaro