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Constitutional Law Prof: Don’t See How You Can Find Obstruction When Trump Could Have Fired Mueller

Michael Morris
By Michael Morris | March 28, 2019 | 12:53 PM EDT

President Donald J. Trump (left) (Photo by Drew Angerer/Getty Images) and Special Counsel Robert Mueller (right) (Photo by Alex Wong/Getty Images)

In an interview on AM 790 News Talk WNIS with Tony Macrini on Wednesday, Regent University School of Law Constitutional Law Professor Brad Jacob, JD gave his analysis of Attorney General William Barr’s summary letter of the Mueller report, suggesting that he cannot see how you can find obstruction when President Trump could have fired Special Counsel Robert Mueller.

“[Special Counsel Robert Mueller] was performing an executive function, investigating alleged wrongdoing that could lead to criminal charges,” stated Constitutional Law Professor Brad Jacob. “That is an executive branch function, and therefore, Mr. Trump could have fired him at any time. He could have simply ordered, ‘We’re not going to have any more special prosecutors. We’re not going to have any more of this stuff. I’m just shutting it all down.’”

Later in the interview, Law Professor Jacob concluded, “[B]ut the bottom line is: he could have stopped it, and he didn’t. He let it continue until the end— And I don’t see how you can find obstruction of justice in that.”

Constitutional Law Professor Brad Jacob’s remarks on AM 790 News Talk WNIS on Wednesday came after the release of Attorney General William Barr’s summary letter on the Mueller report, the letter stating that the Mueller “investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.” The Mueller probe that Trump claims was a “Total EXONERATION,” took 22 months, included 19 lawyers, 40 FBI, 2,800 subpoenas, 500 search warrants and 500 witnesses, but Rep. Adam Schiff (D-Calif.) has asserted that “Inevitably, [Mueller] is going to have to come and testify” before the House Intelligence Committee, Schiff suggesting on Sunday, March 24, 2019 that there could still “be overwhelming evidence on the obstruction issue.”

Below is a transcript of the pertinent part of Law Professor Brad Jacob’s comments from the AM 790 radio program:

Constitutional Law Professor Brad Jacob: “Well, you know, obviously I’m not the greatest expert on the political side of this whole Mueller thing. Other people can speak to that better than I can. But the constitutional side is what interests me.

“And of course, we’ve got the report – some of it. You know, we have some idea of what’s in the report at this point. We know that the president is not being charged with anything, like colluding with the Russians. A lot of the Democrats are still making noises that he may have committed obstruction of justice.

“And I’m trying to figure out what that looks like because as far as I know, the president didn’t, you know, go threaten somebody, you know, point a gun to them and say, you know, ‘Drop this investigation, or I’ll shoot you.’ He didn’t assault anybody. He didn’t, you know— The allegations, I think, have to do with how he controls people in the Executive Branch.

“And I’ve talked about this before, but the United States of America has a unitary executive. Article II says, ‘[all] executive power [is] vested in [the] President of the United States.’ Now, we have more than two million people, counting the military, who work for the Executive Branch of the United States government. Who are all the rest of them? Well, I tell my students, they’re the president’s minions. Every one of those people has delegated executive authority from the president. And by the way, that included Mr. Mueller.

“He was performing an executive function, investigating alleged wrongdoing that could lead to criminal charges. That is an executive branch function, and therefore, Mr. Trump could have fired him at any time. He could have simply ordered, ‘We’re not going to have any more special prosecutors. We’re not going to have any more of this stuff. I’m just shutting it all down.’ It’s what Nixon tried to do. And just like Nixon, he would have found out that the check on that conduct is political. It’s not a governmental check. If the president chooses not to seriously investigate wrongdoing high in the Executive Branch – whether it’s him or somebody else at the top— if he chooses not to investigate and to try to deal with that, he’s taking the risk of either impeachment or being voted out of office. I mean, those are the—those are the checks on a president.

“And one of the things that I really think is funny, is that now that he’s been exonerated of all the allegations of Russian collusion and all of that, if from the very start of this investigation, if he had been saying, ‘We welcome Mr. Mueller’s investigation. We encourage him to get to the bottom of this. I know that I’m not guilty. I know that I didn’t collude with the Russians. If he investigates, he’s going to prove that. Go get ’em, Mueller. Go dig. Find everything you can find because it’s going to—’ He would look so good today.

 “But in my view, it’s very, very hard for the president of the United States to commit obstruction of justice in a criminal, a federal criminal case or a potential federal criminal case.”

Tony Macrini: “The ideal situation, Professor Brad, would it have been to give it to the Attor[ney General Barr] – who I think is a standup guy, and who I think has a certain view of the Constitution and has a certain view of the Executive Branch that people might disagree with, but that’s his view, so I think that we could’ve drawn the conclusion that he was going to draw, pretty much we can figure out exactly what he was going to do. But do you think with Barr, given his view, given that 19-page encyclical that he had out last year about his views about all of this, that he thought that the whole thing was illegitimate, and since the whole thing was illegitimate from the get go, how could the president possibly be guilty of anything?”

Professor Jacob: “That very well may be the explanation for it. And I have a hunch, you know, we’re going to see the report at some point. I think the political pressure is going to be great enough – or at least most of it. There may be some things that they say have national security implications or something and so they don’t disclose all of it, but I think we’ll see most of it. I think the people will have the opportunity.

“But, again, if the prosecutor, the special counsel comes back and says, ‘There was no collusion with the Russians,’ and the investigation proceeded, it went on, and the president, although, you know, woofing and tweeting a lot – tweeting literally, woofing figuratively—”

Macrini: “Right.”

Professor Jacob: “You know, he complained a lot about the investigation, but the bottom line is: he could have stopped it, and he didn’t. He let it continue until the end.”

Macrini: “To his credit.”

Professor Jacob: “To his credit. And I don’t see how you can find obstruction of justice in that.”

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