>> i thank the gentleman for yielding. mr. malcolm, i have the appointment of special counsel mueller, one page document that makes it happen on may 17th, '17, signed by rod rosenstein, in there, he says the last point, item d, section 600.4 through 600.1 of title 28 of the code of federal regulations are applicable to this special counsel and 600.8 c says this, at the conclusion of the special counsel's work, he or she shall provide the attorney general with a confidential report explaining the prosecution or de declination decisions reached by the special counsel. it seems to me that the special counsel was either supposed to prosecute or decline to prosecute. not say, i can't decide. not say, i can't decide because there's an opinion at the department of justice. he's supposed to pick one or the other. do you read it that way? >> yes, i do. >> and you said that in your testimony, i think, your written

testimony, i don't know if you said that in your statement but your written testimony, you said it was the duty of the special counsel to provide the attorney general with the confidential report explaining what i just read, the prosecution or declination decision reached by the special counsel. do you think robert mueller failed to do his duty in making a decision? >> that is my opinion. >> okay. with that i yield back, mr. chairman. >> gentleman yields back. the gentleman from california. >> thank you, mr. chairman. before continuing, i would just ask the witnesses to direct their attention to what's referred to as slide seven. it's a timeline. it goes from june 14, 2017, with an nbc news story saying trump being investigated for possible obstruction of justice and then it goes through various tweets from the president, including on june 15, you are witnessing the single greatest witch hunt in american political history led by some very bad and conflicted people to a june 17 story of trump directing mcgahn to fire the special counsel. on june 19, trump dictates to

former campaign manager, deliver a message to the attorney general, directing him to not investigate trump, concluding on the 6th of december with -- shield the president from the ongoing russia investigation and just going back, professor mcquaid, to the questioning, how do you interpret the directives to corey lewandowski by the president? what was your interpretation of that type of behavior and directive? >> directing corey lewandowski to go see attorney general jeff sessions and ask him to take an enethical act strikes me as a matter that would go even consistently with mr. malcolm's theory and attorney general barr's theory, beyond the scope of executive powers. he is acting outside by asking a private citizen to persuade attorney general to unrecuse himself and limit the scope of the investigation to only future elections is obstruction of justice under any theory. >> the report concluded the president's efforts towards

sessions were because he believes sessions would shield the president from the ongoing russia investigation. ms. vance, looking at the timeline, you give us your reactions to this portion of the mueller report? >> something that we've talked about is the need to look at the entirety of the facts. we want to focus on these ten events and determine whether there's any misconduct because as congress, you all need to look at that. also, though, as we look at this timeline because this really blends two of the acts that we've been talking about, this effort by the president to fire the special counsel but also this effort to get attorney general, then attorney general sessions to unrecuse and protect the president. and so, these acts put together really show us a great level of intent. you know, i would make the point representative small well that when we reach the end of this, we essentially have a president who's saying maybe i robbed some banks in the past but i don't want you to look at that, mr. attorney general. i just want you to investigate whether i rob any banks in the

future and when we put it in those terms, i think that pops this into a little bit of relevance for us. >> page 97 of volume 2 summaries, quote, taken together the president's directives indicate sessions was being instructed to tell the special counsel to end the existing investigation into the president and his campaign with the special counsel being permitted to move forward with investigating election meddling for future elections. mr. dean, do you agree with that interpretation by the special counsel and why? >> well, i think what the special counsel is saying and what the president's asking for is to, as was said by former u.s. attorney vance, is an effort to end the investigation in the present activity and to pretend like they would focus on future activities when there's no basis for that. >> mr. dean, since the nixon

administration have you witnessed any future administration commit more obstruction crimes than the nixon administration, yes or no? >> no. >> you would submit that in your view, the nixon administration, compared to every administration after, committed the most amount of obstruction crimes you've witnessed? >> no. i gave a few samples in my written statement and there are probably books will be written comparing these two. >> let me rephrase the question, comparing nixon to just any future administration, would you say there was a future administration that committed more crimes than the nixon administration as far as obstruction? >> i would say the trump administration is in fast competition with what happened in the nixon administration. >> i would like to thank all of the witnesses for participating, especially mr. dean, professor vance and professor mcquaid.

your voices have been very important voices as our fragile democracy has been tested and coming here today has laid out the foundation for our country as to what's at risk. it's often said that history doesn't repeat, it rhymes, and we are hearing many of those rhymes today and i would yield back. >> gentleman yields back. the gentleman from north dakota, mr. armstrong. >> thank you, mr. chairman. we've heard several times today that we have to examine all of this in the totality of the circumstances, and i also would encourage everybody to read volume 1. i would encourage everybody to read the report. i'm on my fourth time through it. i will admit i'm doing it by audio book now. i get to drive a lot in north dakota, but i think how the witness -- the tepidness to the answers regarding volume 1 of the report speak volumes about where we're at in relation to this -- in relation to this report. there's 22 months, 2 years, hundreds of hours investigated,

and all started under the basis of collusion. we've read some tweets from some of our witnesses and those things and we get to the point and there is no collusion or conspiracy, which is the legal version of what collusion would be in this example. and i think that's important. not a single member of the president trump's family has been indicted. the indictments that actually came out of the mueller investigation with the exception of 25 russians, which is purely symbolic because we're never going to get those indictments served, are unrelated financial crimes, tax fraud, campaign finance, lying to congress, only once, not twice. we haven't brought mr. cohen in for the second time of lying to congress yet. identity theft, failure to register as a lobbyist, and conspiring to violate lobbying laws. and then several obstruction and lying to investigators and i have read all of those lying to investigators charges as where he will well. so my question for mr. malcolm,

when we are talking about dealing with this in the totality of the circumstances, how important is not having the underlying crime of conspiracy when we look at these -- when we look at these obstruction charges? >> well, i certainly think it's a very important factor in terms of what would motivate the president to do what he did. he was being bedevilled by allegations that he knew to be false, and it was casting a apple on the legitimacy of his presidency and impeding his ability to govern. he had no problem looking into russian interference in the election. i disagree with all due respect to the characterization by professor mcquaid about what he was asking bob mueller to do but he clearly wanted jim comey to say that he wasn't involved in any kind of conspiracy or colouis and he was frustrated by the ongoing cloud over his presidency. >> and then just for a question, if mr. trump wanted to fire bob mueller, could president trump fire bob mueller? could he have done it at any time? >> sure. >> if he wanted to fire jeff

sessions, could he have done it at any time. >> yep. >> if he wanted to fire don mcgahn, could he have fired him at any time. >> certainly could. >> as we're dealing with endeavor, which is just attempt, endeavor to obstruct and when we typically deal with attempt it's important that we have it because if i determine i'm going to rob a bank or murder somebody, there are underlying factors that could cause me to not complete that action, you would agree, right? >> yes. i mean, you have to look at what people do. you also have to consider what they say but venting is venting and this is a president who likes to vent but you look at what he does and in fact, he did not do any of the things that, you know, he was talking about doing. >> and then even more so, when we walk through with the people who he was venting to, none of them -- as far as the mueller report is concerned, none of them really appeared to have any consequences as well, did they? >> that is correct. even people who knew that he was venting and didn't do what he asked them to do. >> now, i'm going to -- i just want to walk through. i would love to walk through each, actually, one of the obstruction charges but have you

read the inspector general report as it related to the clinton administration and the fbi. >> it's been a while but yes. >> and you would agree that a ton -- mr. horowitz found a ton of bias and impure acts or at least thoughts, i mean, we have text messages, some of those are salacious, have made the news, conducted by the fbi agents, right? >> regrettably, he did. >> but in his final conclusion, he has -- i mean, he basically asserted that because while there may have been a potential impure thought there were also legitimate reasons for why they were conducting that action, so he didn't hold -- he didn't recommend any real true accountability to the fbi agents at that point, right? >> yeah, inspector general horowitz looked at the realm of reasonable decisions made by the investigators and prosecutors and whatever possible he gave them the benefit of the doubt, sometimes he just couldn't because of the conduct involved. >> and i guess that's just my overall general question. when you're dealing with some of

these issues, if you have ill lel just a minute reasons and legitimate reasons and you have no underlying crime, how do you prove the intent? >> that is precisely the danger here because you are talking about trying to determine what is an illegitimate or legitimate motive for core presidential discretionary actions. it's easy to do in the face of facially criminal conduct such as paying a bribe or witness tampering or threatening a witness but not with respect to want actions that the president undertook here, whether you like them or not. >> and i'll just end with, we've been talking about tweets that age well or don't. this is a tweet from our president on june 15th of 2017. they made up a phony collusion with the russians story, found zero proof so now they go for obstruction of justice of the phony story, nice. with that, i'll yield back. >> gentleman yields back. the gentleman from california, mr. lieu. >> thank you, mr. chair. let's talk about jeff sessions' recusal. it is well known, then attorney general jeff sessions following

the device of the department of justice ethics officials recused himself on march 2, 2017, from investigations related to 2016 presidential elections. page 51 of the report goes on to detail a meeting between the president and attorney general and it says, quote, that weekend, sessions and mcgahn flew to mar-a-lago to meet with the president. sessions recalled that the president pulled him aside to speak to him alone and suggested that sessions should unrekus from the russia investigation. so, former prosecutor joyce white vance, what do you make of that? >> recusal is not an -- a question that the justice department considers infrequently. recusal, conflict concerns come up in all sorts of situations. maybe as a prosecutor, you knew someone personally or your family owns stock in a bank so you recuse from that case and when those situations come up, the prosecutor's obligation is to go to the office in the justice department that considers those concerns and gets advice. that's what attorney general

sessions did. that was a dispositive conclusion that he had conflicts that meant that he could not be involved in any cases that were looking into the 2016 elections so this request from the president that he revisit that, it's not just improper, it's imcomprehensible. there is no such thing as unrecusal. >> thank you. former prosecutor mcquaid, you also were a u.s. attorney, is that correct? >> yes. >> all right. per the department of justice rules, is attorney general or other person allowed to unilaterally unrecuse themselves. >> no, there's no such thing as unrecusal. think of it as he was tainted. a determination was made that he can be the attorney general for many other cases, but not this one, because of his political connections to president trump, he correctly asked them to assess whether he could serve as attorney general over this matter. they studied the matter and concluded that he could not, that he was tainted and he was unable to handle this case.

and so, to unrecuse oneself would be to ignore the taint and commit an unethical act. >> thank you. page 38 of volume 2 of the report says, and i quote, when sessions told the president that a special counsel had been appointed, the president slumped back in his chair and said, oh my god, this is terrible. this is the end of my presidency. i'm -- the president became angry and lambasted attorney general for his decision to recuse from the investigation, stating, how could you let this happen, jeff? sessions recalled that the president said to him, you were supposed to protect me or words to that effect. mr. dean, understanding what occurred during watergate and your experience, do you believe it is the role of the attorney general to protect the president? >> that certainly wasn't the case during the nixon presidency. as a former employee of the department of justice, where i served as the associate deputy attorney general, i know there's

a proud and professional workforce at the justice department that doesn't do anything other than represent the american people. i don't think the attorney general, his task is to represent the president. john mitchell, who was the initial attorney general, followed by richard and then former senator saxby and elliot richardson, i really don't think they looked upon their job as to represent richard nixon, so this is a set of unprecedented view from mr. trump as to what the attorney general should and should not be doing. >> thank you. former u.s. attorney mcquaid, what is your understanding of the role of the attorney general? >> the attorney general is the lawyer for the people of the united states. he is to support and defend the constitution and he is to represent the people. he is not the personal attorney for the president. >> thank you. page 107 of volume 2 of the

report documents some point after may 17, 2017, appointment of the special counsel, sessions recalled that the president called him at home and asked if sessions would enrecuse himself. according to sessions, the president asked him to reverse his recusal so sessions could direct the department of justice to investigate and prosecute hillary clinton. and the gist of the conversation was that the president wants sessions to unrekus from all of it, including the special counsel's russia investigation so former attorney mcquaid, what is your reaction to that phone call. >> it demonstrates to me that president trump was persistent in his efforts to get attorney general sessions to unrecuse himself because he was to desperate to limit the scope of the investigation. he was concerned about a number of things. i know the congressman said if there's no underlying crime then there's nothing to cover up but i disagree with that. number one, as a matter of law, that's not correct but president trump knew there were a number of things that could be exposed about him, the payment of hush

money that caused him to be named as individual one in the district of new york. the meeting at trump tower with russians that but for definitions of willfulness could have amounted to a crime. the conversations with wikileaks, all of those things, i believe, were matters that were collusion and could have concerned president trump about discovery and exposure. >> thank you. i yield back. >> the gentleman yields back. the gentleman from florida. >> thank you, mr. chairman. you know, it's fascinating to me that the majority brings in michael cohen, a convicted liar, who lied to congress as a witness and now the majority brings in mr. dean, who's convicted of obstructing justice and is paid by cable networks and others to opine against the president. so instead of legitimizing mr. dean's presence here today, i'll ask my questions to mr. malcolm. isn't it true that the president could have exerted executive privilege and prevented

mr. mcgahn and others from cooperating from the special counsel? >> yes. >> and in fact, not only did he encourage mr. mcgahn to cooperate, he allowed 20 white house officials to testify, including 8 people from the white house koum counsel's office. >> correct. >> isn't it true that the president has full constitutional authority without reason to fire the fbi director at any time. >> yes. >> so, how would it be obstruction to fire an fbi director? >> i don't think it was. i would also point out that the report also indicates that others within the intelligence community, attorney general sessions himself, had suggested that the president ought to do that before the president decided to do it. >> isn't it also true that if the special counsel had decided on the question of obstruction, he could have stated that there was evidence the president committed obstruction and recommended that he be charged with obstruction and not kick the decision to the a.g. >> he could have done that, yes. >> and he could have recommended any form of charges that he wanted to recommend, including if he had found anything on russian collusion or conspiracy

or any other matter. >> while recognizing that it would not result in an indictment, he could have said the evidence was there to convict the president if he could be charged, yes. >> which he did not. and he kicked the decision to the attorney general of the united states who said, and i quote, there's not sufficient evidence to establish that the president committed an obstruction of justice offense. >> that's correct. >> could you walk me through, as an attorney who spent a number of years practicing in the courtroom and having numerous clients, could you walk me through the chilling effects that this is all having on future presidents having honest and open and frank conversations with their white house general counsel. >> presidents engage -- one, they solicit advice, sometimes the advice that they're seeking is to do something stupid, sometimes it may even be to do something illegal. that's why they have these conversations and get advice from trusted people. what this suggests is that by even having the conversation, or saying something publicly or privately about it, one could be subjected to criminal liability.

there are all sorts of actions that a president might take that might be aggressive, some of which are covered in the mueller report with respect to appointing certain executive branch officials, firing certain executive branch officials, considering issuing certain pardons, engaging in executive orders, invoking the take care clause of the constitution to actually involve ones self in an ongoing investigation that he this cans is being unfairly conducted, all those things can be either legitimate or illegitimate. and i think it would chill a president to the bones to think some prosecutor is going to be making a determination which action is legitimate, which is a illegitimate. the mere fact the inquiry could take place would have a chilling effect which is why there's no clear statement this obstruction of justice law should apply to the president and which is why the independent council should focus on facially illegal acts.

>> you've said it better than i could have said it. i think if you're going to be in the white house in the future, this is all going to weigh on whoever that president may or may not be and the decisions he has in confidence knowing that the white house general council isn't going to be subpoenaed to testify about various conversations they had about what is going on in the white house. so i thank you for your testimony here today and i will yield the remainder of my time. >> in the mueller report it says our report does not conclude the president has committed a crime and also does not exonerate him. i'm trying to figure out how that squares with title 28 of the federal code of regulations impacting special kounss where we read before the attorney general shall provide a confidential report explaining the prosecution or declaration

decisions. >> i don't think it does that i don't think there's any proper standard for any prosecutor to decide whether or not someone has been exonerated. that's not the role of a prosecutor or even the role of the jury. not that they were factually in the. >> and it specifically says when you read the section of the title 28 it specifically says the prosecution or declamation decision reached by the special counsel. it doesn't say you don't have to decide at all. it says you have to pick one, and yet in his report it says our report does not conclude either way. >> i read it the same way you do. >> why was he able to reach a decision on one and not the other? >> that you'd have to ask him. my guess is his team is conflicted on what to do but that's reading tea leaves and i don't reed tea leaves very well. >> the gentleman yields back. the gentleman from maryland. >> thank you, mr. chairman.

mr. dean, president trump's national security advisor michael flynn pled guilty to making false statements to the fbi under 18 ufc 101 and has been cooperating with federal law enforcement investigators. he resigned on february 13, 2017. page 40 of the report documents an oval office meeting in the afternoon between the president and fbi director comey where and i quote the conversation turned to the topic of leaks of classified information, but the president returned to michael flynn saying he is a good guy and he's been through a lot. the president stated i hope you can see your way clear to letting this go, letting flynn go. he's a good guy, i hope you can let this guy. now, what do you think was taking place in that conversation? >> well, the only parallel i can draw in my mind to past presidents is what happened on june 23rd of 1972 when hr

halderman came into the president to talk about the fact that people from his re-election committee were involved, and the president heard the chief of staff out and instructed him, and he ended the conversation to have the cia to tell the fbi to stop its investigation. >> ms. mcquade, was your reaction to this exchange -- >> similar to what mr. dean just said and i think it goes to something mr. malcolm has said as well which is that, you know, we can never allow prosecutors to second guess the decisions of presidents, but i think that writes out of the constitution, the word faithfully, to faithfully execute the laws. just as president nixon was facing articles of impeachment for ordering the cia to stop investigating watergate, similarly president trump's directed to let it go with mr.

flynn was the same kind of corrupt act that is obstruction of justice. even if he can't be charged criminally, this body has the ability to hold him accountable. >> and indeed when one of our colleagues says it's up to the president to determine whether or not he faithfully executed the law, that's clearly wrong in the constitutional sense. it's up to congress to determine whether the president faithfully executed the law. >> that would otherwise render the checks and balances that is the hallmark of our system. >> what's your reaction to that scene where president trump urged fbi director comey to drop the investigation against michael flynn and then ended up firing fbi director comey afterwards? >> so let me just be candidate and tell you i don't include that as one of the instances of which i think qualifies for charging based on what we know at this point. the intent question is a little bit sticky. it's possible that the evidence there is there. perhaps it's not. what it does tell us is a great

deal about the president's state of mind and what he was focused on doing. so there's this sequence of events where the president fires director comey, then goes on national television and acknowledges that he did it because russia was on his mind. and finally has a conversation in the oval office with folks from russia, with russian government officials where he tells them, like, he feels he's out fromicide the pressure of the investigation. so as we consider all of the circumstances that we're looking at in volume ii, what's clear is that even this early point in time the president was focused on not letting this investigation move forward, and just really plays into this conversation that we've had a little bit about whether or not you have to have an underlying completed crime for obstruction. what's going on here is maybe there's a crime, maybe there isn't. the president doesn't know at this point in time, but he wants to shutdown the investigation in case there is one. and that's why under our criminal code obstruction

doesn't require an underlying crime. >> in it the case people get prosecuted for obstruction of justice even if they're not prosecuted for the underlying offense. >> that's true. that happens, and there's also a case cited in the mueller report that comes from my own district where a defendant was charged with two counts of obstruction but also with other crimes. on appeal those underlying convictions didn't hold up, but the court let the obstruction convictions stand alone. >> mr. dean, i want to come back to you for a moment. you and i are from different political parties and did you or the chief political counsel of this committee, are you the white house counsel for a president that put my father on an enemies list. my father was an official in the kennedy administration and had a lot of problems with the nixon administration. and so growing up we were very fearful about the nixon white house and what they would do to people. but you are clearly a man of honor and a man of integrity and a man who's standing up for the

truth. i want you to tell us why you've decided at this point in your career to come forward to talk about what's taking place in america and the trump white house. >> congressman, i can remember when working for this committee back in the '60s. this committee did an awful lot of good things. for example, when i was here there were amendments made to the '64 civil rights act. there was the '65 voting rights act. there was the 18-year-old vote, there was the 25th amendment. a lot of activities. and it required both republicans and democrats to work together. this was a wonderful place to start a career in government working for this committee. i'm not so sure today. there's too much polarization. you sense it in the questioning sitting here and the shots that get taken at witnesses. so what brought me forward was the ins vitation in vitation in

instance where i thought i could share particularly with the people on this committee who were either not born or were young when watergate occurred. and it's quite striking and startling to me that history is repeating itself and with a vengeance. so that's why i've spoken out. >> thank you very much. i yield back, mr. chairman. >> the chair recognizes the gentlewoman from arizona. >> thank you, madam chair. mr. malcolm, i'm first going to read some excerpts from the mueller report and then ask you to comment on them, if you don't mind. special counsel robert mueller is a prosecutor and yet he did not -- not recommend obstruction of justice charges against the president. and has been said before by our ranking member collins, there was a joint statement by the special counsel and department

of justice that says the attorney general has previously stated that the special counsel repeatedly affirmed that he was not saying that but for the olc opinion he would have found the president obstructed justice. let me again talk about some particular excerpts. and after reeling the mueller report it was clear to me that mueller knew he may not have a clear case that can hold up in court. and in fact he said the evidence we obtained about the president's actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment, namely, a, the president has article ii authority and the acts the president engaged in a