Former Special Counsel Robert Mueller's mythic profile -- built over a period of two years by Trump detractors hoping his investigation and later his testimony would pave the way for the president's removal from office -- took a hit Wednesday as the veteran lawman was seen stumbling through questions and at times unclear about the contents of his own report.
Now, some of President Trump's biggest critics are turning their ire toward the legend himself, panning his performance at this high-stakes forum, even though Mueller repeatedly made clear he did not wish to testify in the first place.
Guy Benson gets reaction from John Yoo who served as Deputy Assistant Attorney General in the Office of Legal Council in the Justice Department of President George W. Bush.
Guy Benson [00:00:00] I am very pleased to welcome in John Yoo. He was the deputy assistant attorney general in the Office of Legal Counsel which is as I mentioned LLC getting a lot of attention recently. Visa V the Mueller Report. He was in the DOJ during President George W. Bush's administration. He is a visiting fellow here where I'm broadcasting from the Hoover Institution. He's also a law professor at the University of California at Berkeley. Professor Yoo it is great to have you here.
John Yoo [00:00:29] Thanks for joining. Hey guys. Thanks for having me.
Guy Benson [00:00:33] So I'm just curious in your time at DOJ during the Bush administration what kind of overlap if any did you have with Robert Mueller.
John Yoo [00:00:45] I will never forget him actually because I was there at the time of the 9/11 attacks. And I think it's a great contrast actually to what I saw this week which I found sad. But at the time of the 9/11 attacks as the director of the FBI he was one of the people I think the critical people who helped pull the country up off the mat after we've been punched in the gut by the by al-Qaeda and helped us figure out who did it and how to respond. And I think you know it's all the things people are saying about him I think are really people remembering what he was like as FBI director back then and not unfortunately I have to say the faltering performance that we saw that hit at this week's hearings.
Guy Benson [00:01:33] Yeah talk about that performance on Wednesday we heard from the president who actually I'll just play for you the president last night called into Sean Hannity's show on Fox News Channel on the TV side in cut 3. He referred to the performance from the special counsel as quote shocking. Listen to this.
TRUMP SOUND CLIP [00:01:51] Well I think people learned a lot yesterday watching a very poor performance and watching things that they couldn't believe when they saw what was going on and hopefully we're going to be able to find out how a thing like this started it was a disgrace to our country. It was a disgrace from every standpoint and I would say that most people have never seen anything like it. And then on top of it you watch that performance it was. It was shocking.
Guy Benson [00:02:18] So John Yoo you had this experience in the Bush administration with Mueller and you know at length and you talked about really his heroic performance as FBI director at the time and then what you saw on Wednesday you describe it as sad. What were your takeaways from what he did or even didn't say to the committees.
John Yoo [00:02:40] Yes well first that I think the most important thing in my mind was that I had great faith in him when I heard he had been appointed special counsel and that a lot of the attacks on the investigation would turn out not to be true because I have great faith in his judgment. You know history record too but I'm afraid to say after I saw that performance it did make me doubt now whether the investigation hadn't been taken over by lawyers had very partisan agendas and pushed them far pushed investigation farther than it should have on because one thing I could see was that Mueller and the investigations they found out pretty quick probably who was just a few months of showing up that there really had been no conspiracy between the Trump campaign and the Russians to violate campaign know federal campaign laws and to collude with whatever collude actually means. And then most of this investigation was all about obstruction. And one thing I saw was that Director Mueller had a really hard time explaining why that investigation had ever been conducted. Once he knew that there had never been any underlying crime and that really disturbed me because it made me think maybe this investigate all these criticisms from the president and a lot of the sport about the partisan nature and investigation actually were true.
Guy Benson [00:03:57] Yeah. No and I think that that's fair. It's one of the concerns that I now harbor one that I did not have prior testimony. So let me ask you then. You worked in the Office of Legal Counsel. There was those three words in the acronym. Well see was just mentioned constantly right invoked over and over again both in the debate over the report itself and then during the testimony on Wednesday. What do you what is your legal analysis of this question because I never felt like I had a satisfactory answer from Mueller or really from anyone on this point of the only reason that they didn't even consider charges against Trump from the very beginning was because of this OLC guidance I guess Mueller had said a number of different things he had at one point sounded like he said well the only reason they didn't consider it was because of the OLC guidance and then his testimony was. No no actually it was yes that memo but also other considerations such as fairness then the attorney general said in meetings with him and other people Robert Mueller had said no no and that was not a significant or deciding factor at all. Have you been able to glean any more insight into this having been on the inside or are you as confused as I am on that?
John Yoo [00:05:11] No none of you I think you're yes is very smart and tough questions and I see I think it kind of makes sense this way. So first off but also as a legal counsel you can't put your finger. It's not just guidance with the Office of Legal Counsel does and what it did when I was there it interprets the Constitution on behalf of the executive branch. And so the question is does the Constitution permit the prosecution of a sitting president. It's not just we at Justice Departmentjust don't feel like doing it. It's know the Constitution is highest law of the land. So no one and the government can violate it and we'll see under Clinton. This is not a Republican LLC. Even though the Justice Department under Clinton they took the view that the Constitution best interpreted means that a sitting president cannot be prosecuted. I happen to think that's correct. I think that what the framers intended was that impeachment was the only tool that the Congress could use against a president who it believed abused his powers. If that's true then that's the hard question for Mueller is if the Justice Department believes in you. Mueller. Say you don't disagree that it's not his job even to question it or not. That's just that's a different part of government then why did you conduct the obstruction investigation at all. Maybe it's not policy if you can't prosecute him Why do you even issue Volume 2. It is a it is a violation of Justice Department practice for a prosecutor say well I'm not going to go after this Guy. But here's all the bad stuff I think he did anyway. We we just don't do that in justice department. And so this is kind of how I think it makes sense is. Mueller you know he thought one of two things Either this is too hard a decision I want someone else to decide. So that's so he kicks it upstairs to Attorney General Barr. People kept saying you know this week oh why didn't Mueller indict President Trump. Why did why he dropped the charges. People forget actually it was attorney General Barr who decided not to prosecute Trump. Remember Mueller just said we don't reach a conclusion. We handed off to Barr, Barr decided there's not. There's insufficient facts to prosecute Trump for obstruction which I think is the correct outcome to now that the worst thing that the more malign interpretation of what the and this is why I now think that maybe there's more truth to this and I have thought because of what I saw was that there were people in the investigation who want to trigger some kind of impeachment. And so what they did is they wanted the report to be public and they couldn't figure out how to do it. So this is the way they did it. They said well wrote about the evidence. Yes a roadmap for you guys. I think that is actually unconstitutional because it's just the Congress wants to do impeachment they should do the impeachment but they can't delegate or hand it off to somebody else to do for them.
Guy Benson [00:07:59] John I played the clip at the top of the show. Chairman Nadler saying it's quite clear to him that any other person in the country who did what Trump did under these circumstances would have been charged with multiple crimes. Is that quite clear to you?
John Yoo [00:08:14] No not at all. And because the one important reason is because Nadler's assumption is is completely false. No one else in the country could do what the president does. I mean the the two biggest the two main scenarios are factual situations people talking about for why Trump should be charged obstruction is because we want to fire Mueller at some point. Anyone to fire the attorney general at some point. No one in the country can do that other than the President and only the President can choose. It's silly to talk about what anyone else can charge him stretch because there could never be another such case. And then second I don't think that Congress can should be demanding that the head of the executive branch for exercising which no one doubts this is constitutional authority which is to remove people from office within the executive branch the Congress is going to be demanding that the executive branch investigate and go after itself. Again if people in Congress thought that President Trump thought what if certain points he never did it right. That's right. They're demanding he Trump be impeached just for thinking about something that he didn't do. Right.
Guy Benson [00:09:25] Mueller was never fired Rosenstein was never fired Sessions was never fired. Those are relevant facts. John one last question. I just learned in less than a minute here. You know what it's like to be a lightning rod for controversy working inside the Justice Department during a Republican administration. You went through that yourself. What is your assessment of the job performance of William Barr the attorney general overall?
John Yoo [00:09:49] Well I think he's been doing a great job so far because the most important thing for an attorney General someone who is charged with enforcing a law is to not care about a public not care about public opinion. That's what I did too I thought. I hope I did it well. Do what you think is right under the law. And don't worry about what the polls say and don't worry about criticism and so Barr's been doing the right thing even though it's been unpopular with the media.
Guy Benson [00:10:12] John Yoo was the deputy assistant attorney general in the Office of Legal Counsel during the Bush administration. He's a visiting fellow here at the Hoover Institution. He also teaches law at Cal Berkeley. John this was great. We'd love to have you back soon.
John Yoo [00:10:25] Guy anytime and it's been great to have you back in class again.
Guy Benson [00:10:29] I appreciate that Professor and we are going to step aside. Just getting started here on this Friday edition of THE GUY BENSON show.