have a great rest of the weekend everybody, and i'll see you again next time. ♪ ♪ gerry: hello, and welcome to "wall street journal at large." for two years robert mueller has loomed over the american political landscape, silent and menacing as a darkening sky on a summer afternoon. his investigation into the 2016 election and donald trump was for a long time feveredded speculation in the press and elsewhere. yet for all the chatter, all the noise, mr. mueller maintained an almost eerie silence. it was his written words, not the his voice, that did the talking. but that changed this week.

on wednesday mr. mueller announced that he was stepping down from the job and going back to private sector. and in a conspicuous verbal parting shot, he took the opportunity to offer some cryptic observations highlighting specific parts of his report and what they say about president trump. first, he suggested -- as he'd written -- that the only reason the president wasn't charged with crimes was because he can't be. >> but under longstanding department policy, a president cannot be charged with a federal crime while he is in office. that is unconstitutional. even if the charge is kept under seal and hidden from public view, that too is prohibited. gerry: and then he offered this, shall we say, inconclusive conclusion about the president's guilt or innocence: >> if we had had confidence that the president clearly did not commit a crime, we would have said so. we did not, however, make a determination as to whether the

president did commit a crime. gerry: well, on thursday, as you'd expect, the president fired back. >> i think mueller is a true never-trumper. he's somebody that dislikes donald trump. he's somebody that didn't get a job that he requested that he wanted very badly, and then he was appointed. gerry: but it was mr. mueller's words that were seized on by leading democrats. some of the party's many candidates for president said the special counsel had, in effect, extended an invitation to congress to begin impeachable. former vice president joe biden said that in the wake of mr. mueller's remarks impeachment may now be unavoidable. but nancy pelosi, the house speaker, remains deeply wary of satisfying the party's base through an attempted impeachment. >> many constituents want to impeach the president. but we want to do what is right and what gets results. gerry: well, the speaker's caution, i think, is understandable. polls suggest the majority of

independent voters do not want to see president trump impeached. but the democrats' position is complicated, because those same polls suggest that a significant majority of democratic voters want to impeach mr. trump. well, expect that classic political tension between appealing to the party's base in a primary election and appealing to the middle ground in a general election only to get more acute for the democrats in the next few months as the presidential campaign gets into full swing. well, so much for the politics. this week we're going to take a look at the law. what exactly is the legal basis for what mr. mueller said this week, and what should be the legal limitations? did the fact that a special counsel say that a president can't be indicted, does that imply the only remedy is impeep. how does -- impeachment? how does it relate to high crimes and misdemeanors that the founding fatherrings attested to? -- fathers attested to? with me, the hour author of the

book, "the case for impeaching trump." also with me is andrew mccarthy, former assistant attorney as well as author of the book, "faithful execution," which is also about impeachment. you heard, obviously, what robert mueller said this week. is it usual for an investigator or prosecutor, having carried out the investigation of someone, to say we're not going to charge that person with crimes, but we're actually not going to say whether we think the person was guilty or innocent? >> it's highly unusual to have that kind of a disclosure publicly. i think with mueller it's important to understand the context in which his report is written. pursuant to regulations that govern special counsels, what that exchange is supposed to be is something that the happens pretty commonly which is an exchange between a subordinate prosecutor and a supervisor, in this case the special counsel and the attorney general, about what the charging decision ought

to be. so that was supposed to be a confidential, intra-executive branch, intra-justice department exchange that very unusually has become public. gerry: why do you think it went public like that? >> well, i think the report is, obviously, written to be read. you know, i would say ordinarily that it was the justice department's call to publicize it and, certainly, it was under the regulations attorney general barr's call in that regard. but clearly, the report was written in a way that was intended for public consumption. and i think it has always been the case that he intended to give this to congress. gerry: liz, is it right that when somebody is investigated, that you should have the people doing the investigation essentially dangling out there not an exoneration, but essentially a non-exoneration, a statement saying, well, we just don't really know, we're not able to say whether the president is guilty or not guilty of obstructing justice? that's a kind of strange way, isn't it, to do justice?

>> yes. well, first of all, the special counsel did say there was insufficient evidence with regard to conspiring with russia, conspiring -- gerry: right. the obstruction. >> right. they were clear on that part, although barr had suggested that there was no evidence in his framing of it. so what mueller said suggested that there might be some evidence, but it was insufficient. but that was an important statement. the other part about obstruction of justice is problematic from various points of view. first of all and normally -- and andrew's right about this -- normally prosecutors outside of an indictment or a trial, they don't comment on the person's possible guilt or possible innocence. i mean, that's not a job of a prosecutor. but this is something that's very special and very different. and it kind of falls in the middle of a variety of different issues because what we're talking about is how does a prosecutor deal with whether a president, sitting president has

committed a crime? how do we get at that? and how do we tell the american people about what's going on? mueller felt bound by the department of justice's policies in a legal memo saying that a president can't be indicted. he came to conclusion, well, if a president can't be indicted, i can't charge that president with a crime. i can't charge trump with a crime. but on the other hand, there was -- if he didn't charge him with a crime, he couldn't say there was insufficient evidence because maybe the evidence wasn't insufficient -- gerry: if you don't have evidence of a crime, don't you just leave it? >> well, but he did it -- gerry: i wouldn't expect the prosecutors to say, you know, we can't find evidence, but we're not absolutely sure he's not guilty. >> well, there's a problem, because he is required under the regulations to say why he has decided to prosecute or why he has decided not to prosecute. with regard to russia issue, it was very easy. insufficient evidence. he explained that. with regard to obstruction of justice, he couldn't say that

because that, that wasn't the case. and so he was kind of in a trap there. gerry: andy, what do you think mueller was trying to do with that statement this week? what was that ant? >> well -- about? >> well, i think he wanted to communicate the following: i found evidence that could make out an obstruction case. i couldn't bring the evidence because there's this office of legal counsel guidance -- gerry: saying a president can't be indicted. yeah. >> however, i may have a felony prosecution here or at least worthy of prosecution, and in this system the congress is the body that is supposed to deal with a sitting president's misconduct. so, therefore, hey, you guys over at congress, you don't need a prosecutable in court felony in order to impeach, but i'm letting you know that you may have one.

gerry: so you agree, it was kind of an invitation for the congress to -- >> well, it might be, but i don't think that he's right in his reading of what his responsibilities are, because i think two things. one is we have prosecuted to extent in the nixon matter, nixon was named an unindicted co-conspirator by the grand jury. so that's withstood the test of time. what does that mean? but secondly, you know, somehow the american people are entitled to know whether a sitting president, whether the evidence against a sitting president could amount to a possible crime. and so everybody's left hanging here, and i don't like that result. i don't think he -- i'm concerned about it. gerry: we'll come back. we've got to take a break. i'll be right back with elizabeth holtzman and andrew mccarthy. stay with us. ♪ run with us. in the unstoppable john deere gator™ xuv835. and be prepared to go the extra mile.

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♪ gerry: back with elizabeth holtzman and andrew mccarthy. andy, in his report robert mueller laid out 10, or it might have been 11 actually, grounds of cases of possible obstruction of justice by the president. if this is taken up by congress, how strong do you think those grounds are? i mean, clearly aside from the politics, the grounds that he came up with, what's the case that the president obstructed justice? >> the problem here is that we're leaping back and forth from the legal realm to political realm, right? so if you were to ask me as a strict prosecution matter what would be the outcome of this in the court, that would be one analysis. in an impeachment proceeding, which would be the context the congress would take this up, they don't need to have a sufficient prosecutable case. so there's a a lot that would have to be sorted out in the court case in terms of what the legal standards for obstruction are. i think there's a disagreement, for example, between the

attorney general and the special counsel about what those are. there'd be an issue about what the president's intent was. but congress doesn't need to be concerned about all that. they're looking at this not in terms of can you prove the elements of a criminal offense beyond a reasonable doubt, they would be looking at it as abuse of power, and that would be the framework they'd consider. gerry: and, liz, you went through this famously 40 some years ago with president nixon. give us a sense of what was in your mind and what was in the house's mind then when they were considering what were in some ways similar cases of obstruction of justice, witness tampering, that kind of stuff. what sort of standards the you would bring if you were in congress to this question of impeachment. >> well, i think the most important standard is that you can't -- the american people never accept an impeachment process that's really a gotcha process. we're going to -- we don't like the result of the last election, we're getting rid of the president come hell or high

water. that'll never withstand public scrutiny and shouldn't. but you also don't need to have the results, the same standards for criminal trial. you don't need to prove the case beyond a reasonable doubt. and when we did the nixon impeachment, we said that there is no -- we don't have to meet a criminal standard. still, you need to have overwhelming evidence, and i remember how i felt in that process. when we started, by the way, we didn't know what the results were going to be. we just started an inquiry. everybody says, oh, you start impeachment, you're going to get impeachment -- gerry: is it possible that it could rise to level of an impeachable standard? >> absolutely. not only possible, but the articles of impeachment -- >> [inaudible] >> it can't just be an abuse of power, it has to be something really serious, grave that threatens our democracy or

threatens people's liberties. it's not just a minor thing. impeachment is to remove a president who threatens our democracy. gerry: it's a curious hybrid, andy, of -- obviously, the law's involved in some ways, but it's ultimately a political decision. and if that's the case, especially in our age of hyperpartisan politics, are we ever going to see the likelihood -- especially in the senate -- that you would ever get an outcome like that? >> yeah, well, i think that the two-thirds majority you just mentioned is the genius of the system, because that prevents exactly what liz is talking about. you don't want to have a frivolous, partisan, politicized impeachment. if you're going to remove a president, it's got to be over misconduct that is so egregious and so clear that there'll be a consensus that cuts across partisan lines that the president needs to be removed. that's what the two-thirds -- gerry: we don't seem to have that. or do we? >> we didn't have that with the nixon impeachment. there was no head count --

gerry: and even when that was going on, that you'd get two-thirds in the senate -- >> remember, we had southern democrats who were the equivalent of republicans today. we didn't do a head count, but we got -- we had so much evidence after a while, i felt as though i were going into quick sand, that there was no bottom. and i think we created, we had overwhelming evidence, solid evidence, and we had republican support. gerry: gotta go to another break, but a simple yes or no, do you think the president obstructed justice? >> i think there's a case for impeachment, definitely. gerry: andy? thank you. we'll be back with more of the mueller investigation and where it may lead including possibly to other prosecutions maybe even after the president's left office. stay with us. ♪ ♪ -we bought a house in a neighborhood

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♪ ♪ gerry: andrew mccarthy and elizabeth holtzman are my guests. liz, even if we probably agree that it seem unlikely certainly there's going to be a two-thirds majority in the senate to remove the president, you think the president could face legal jeopardy beyond the political process, particularly after he leaves office. could you explain what there is in the mueller report or some of the things that have come out with the mueller report that could put him in jail? >> well, there are various -- i don't know what the statute of limitations is on potential, some of the acts that he did. so maybe the case for obstruction of justice could still be prosecuted, although i don't know the time frame. but we know that the, in new york state the, for example, the attorney general has several investigations going on including tax fraud, including other -- foundation fraud and so forth. so who knows where trump will be. but i'm not sure that the i

would agree with you that we don't have the senate. we don't have anybody. you have to start with a process. it's like a jury. when you start with a jury, you don't know exactly how many votes you have. at the end, you hope you have a case. they have to build the case. the american people don't know the facts with regard to case that mueller's made, and those witnesses who are part of that the, who can tell the story about trump's misconduct have never been heard by the american people. they need to be heard. whether that's going to be persuasive, i don't know. we've never seen them. gerry: you really think as many as 18 republicans or however is necessary or 16 would vote to remove him from office? >> i'm not prepared to say one way or the other because no case has really been made. we've only heard the written testimony and some oral statements from the special prosecutor. gerry: if the special prosecutor, ann drink, if we don't -- andy, if we don't get an impeachment of president trump, why should the president still face legal jeopardy? i mean, if some of these alleged crimes were related to his

exercise of office, why would he then potentially face -- given he can't be indicted in office, he might be indicted afterwards? >> well, the constitution says impeachment is only about the removal of power and that a president or any office holder can still face justice. so as a matter of constitutional law, he can. the idea is not to put the president above the law, so if he's done something that another person would be prosecuted for, he's liable to be prosecuted. now, i think the equities with the president, you know, anybody looking at that would say particularly if you had a president who was removed from office, i think historically i remember because i was coming of age back in those days -- [laughter] i remember gerald ford was ripped for the pardon of nixon. i think history, actually, remembers that kindly and rightly so. gerry: liz, just very quickly

because we've got to wrap up, a lot of people are unhappy with this investigation which they say really shouldn't have been started in the first place, you know? the obama administration, the obama justice department was pursuing candidate trump in a way that was not right. what do you say to that? >> well, look, we always have to be concerned about any kind of investigation that takes place in the context of a political campaign. we can't ever have the government putting its finger to stop or help a political campaign. but what we're talking about here -- and i'm really disturbed about the republicans' attitude here -- what we're talking about the interference by a foreign government in an election. trump just said that the russians helped get him elected. now, can we tolerate that? no. gerry: andy, just quickly, do you think there will be a full accounting of how this investigation got started? >> yeah. i think we can walk and chew gum at the same time. we can look at the russia threat and at the same time make a decision about whether the investigation was properly predicated.

gerry: i'm sorry we've run out of time. thank you very much, indeed. up next, i'll have some final thoughts on president trump and john mccain's long-running feud which is bang in the spotlight in -- back in the spotlight in an unusual way this week. don't go away. ♪ ♪ let me ask you something. can the past help you write the future? can you feel calm in the eye of a storm? can you do more with less? can you raise the bar while reducing your footprint? for our 100 years we've been answering the questions of today to meet the energy needs of tomorrow.

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where's tommy? (sfx: stage doors opening) i thought he was with you? no jack! (sfx: piano plays "twinkle twinkle little star" tommy? (sfx: audience laughing) go get him! don't stop. keep playing.

(sfx: pianist playing masterful duet) here we go here's the fun part did you do this? great job! (sfx: audience applause) ♪ ♪ gerry: this week "the wall street journal" was the first to report that while president trump was in japan on an official visit, the u.s. military ordered that a certain

naval warship stationed there should be kept well out of his sight in case its name incurred the presidential displeasure. the uss john s. mccain was named originally for admiral john mccain senior who served with distinction in the seconding world war. but last year the name of thed a miller's son, senator john mccain, was added to ship in recognition of senate mccain's own service as a navy pilot and as a senator. whatever you think of senate mccain's politic and he was a notable thorn in the side of mr. trump and a man often content to be more at odds with his own party than with his opponents, it's discomfiting when the u.s. navy has to hide a ship from its commander in chief. if senator mccain's distinguished military service was good enough to be recognized by the military, then surely redeserves -- he deserves the respect of all of us in this nation. i'll be back next week right

here on "the wall street journal" at large. thank you for joining us. ♪ ♪ the following is a paid advertisement for the bissell crosswave pet pro, sponsored by bissell. [music]