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Russia Probe Could Lead To Constitutional Dilemma, Yoo Says


Sean Hannity is ever more passionately defending the president. The Fox personality and presidential friend was on the radio overnight, his voice booming in the car on my way to work. Hannity said, quote, "doing a real estate deal in Moscow with Vladimir Putin is not illegal." He was responding after federal prosecutors released documents saying the president's lawyer repeatedly lied about efforts to build a Trump Tower in Moscow, among other things. Hannity also downplayed the president's hush payments to women during the presidential campaign. So how bad is all of this really? Well, we've brought in John Yoo. He was a top lawyer in President George W. Bush's Justice Department, and he's in our studios. Good morning. Thanks for coming by.

JOHN YOO: Hi, Steve. Thanks for having me early and bright this morning.

INSKEEP: It is a little bit early.

YOO: (Laughter).

INSKEEP: Let's start with that proposition as laid out by Hannity. Isn't it correct that there is nothing inherently wrong with wanting to do business in Moscow, even if Vladimir Putin might be involved?

YOO: Other than being a bad business decision, I don't think it is illegal for a private citizen to want to do business in Russia or any other country. The legal problem is whether President Trump was then - well, then candidate Trump was trying to do a business deal in Russia while he was running for president.

INSKEEP: Meaning that that creates a possibility of a conflict of interest, to say the least.

YOO: Yes. Not just a conflict of interest, but, as you know, special counsel Robert Mueller has been charged to see whether there's any kind of conspiracy - not collusion. I mean, that's the generic term. The legal claim is conspiracy to commit a violation of federal law. Was there any effort by members of the Trump administration to conspire with Russians? And then you could see the payback from Russia being fancy business deals or just loans through Deutsche Bank or whatever the different theories are in exchange for Trump helping to defeat Hillary Clinton, win the presidency and using information stolen off of Hillary Clinton's servers, which were classified - that's the crime - stealing information that's classified from Hillary Clinton's servers and then disseminating it in public.

INSKEEP: And we already have some bits of evidence suggesting the kind of collaboration that you are describing. In one of the court papers, there's a description of a Russian representative telling, I believe, Michael Cohen that there is an opportunity here for a political synergy as well as a business relationship. It's pretty much offering what you're saying. The question is whether the president or someone around him took the deal.

YOO: Yes, that's right. I think what you're seeing with all these disclosures - they're coming rapid-fire now in the last few days - is, certainly, Russia was trying to reach out. We even had the plea announcement yesterday of the gun-toting woman from Russia trying to infiltrate the NRA - which seems to me, actually, like, kind of comic actually - as an effort to infiltrate. But obviously, Russia was kind of flooding the zone, if you want a sports metaphor, with people trying to get in touch with the Trump administration. Personally, I haven't seen anything which shows the Trump administration responded. I think because they were so chaotic and badly organized and - you go back to remember the campaign - the Trump campaign couldn't do anything right. I don't even think they were well-organized enough to conspire effectively, but we're still going to see. Special counsel Mueller is disclosing - I think he's getting close to the end. And he's sort of wrapping up the loose ends. We're starting to see more.

INSKEEP: Is there something inherently wrong with taking so very many meetings? As you mentioned, there were plenty of Russians who seemed to be rushing out - reaching out in multiple ways, and that's on them. There seemed to be plenty - there seemed to have been plenty of people around the president - Michael Cohen, Paul Manafort, Don Jr., Jared Kushner, Michael Flynn, other people - who took the meetings.

YOO: Yes, Steve. I think that's right. I think that's why ultimately, in the end, we need to hear from President Trump. I think special counsel Mueller submitted written questions asking him - I assume; we still haven't seen them; well, nor the answers officially - many of these questions. The Russians are kind of keeping contact. Did president - candidate Trump order subordinates in the campaign to respond? 'Cause that's - there's a difference between talking and actually conspiring to commit the law. It's a line that we must see if it was crossed. I still think only President Trump really knows. And I think special counsel Mueller ultimately may well ask for Trump to sit down for a real interview rather than written questions. That could be a constitutional confrontation, like one we haven't seen since Watergate.

INSKEEP: Why would Robert Mueller say, I'm not satisfied with the written answers?

YOO: So according to press reports, all that President Trump's legal team has done so far is to answer questions about whether there was a conspiracy to violate the law in terms of the issues we've been discussing but not yet about obstruction. Second, special counsel Mueller may want to follow up like any good investigator would want to. He may well be unsatisfied with the written questions which are - certainly been drafted by President Trump's lawyers. He will want, like any investigator, to look the witness in the eye and to see whether he's credible. And then to follow up with questions. Now, President Trump may wish to refuse. And then if that's the case, the special counsel may well have to go to court and get a subpoena. And that's the same thing that happened constitutionally back in Watergate when President Nixon had to decide whether to obey a subpoena for the Watergate tapes.

INSKEEP: Is this a dilemma for the president? We've heard from press reports that some of his past lawyers felt he could not sit for an interview because he can't tell the truth. And that is in no way a partisan statement. He's been under oath in lawsuits before and was caught making false statements again and again and again. Is that really a dilemma for the president if he is - if that demand is made?

YOO: It's a good question, Steve. It's not just a personal dilemma for Trump. It's a constitutional dilemma for the presidency. Trump - if he was a normal person, his lawyers are going to tell, him don't testify in person; don't go under oath; you talk too much; you tweet too much; you might commit perjury. It's, you know, what - you see it here referred to as perjury trap on some small issue, even though Trump may want to testify. But Trump's not just a private citizen. He's the president. The president constitutionally is the chief law enforcement in the - enforcement officer in the country. All prosecutors work for him. It's a terrible message to all of us in the country if we're expected to cooperate and help law enforcement but then the chief law enforcement officer under the Constitution himself won't cooperate with those same prosecutors. So I think presidents have at least some kind of obligation - maybe not constitutional but in leading the country to show that they cooperate with their very own law enforcement officers.

INSKEEP: Democrats, as you know, John Lue (ph), are about to - John Yoo - are about to have much more power here. They'll take over the House. They would have the opportunity to impeach the president if they wanted to. They've already said, some of them, that the offences relating to - the alleged offences relating to paying off women during the campaign look illegal - might not rise to the level of impeachment. What would you have Democrats do in this situation?

YOO: That's an interesting question, too. You're pointing out all the constitutional dilemmas everybody has in this presidency. So the House - the first thing they have to face is, what do they think high crimes and misdemeanors mean? High crimes and misdemeanors - I think this is something we've learned from the past, from the framers' intentions when they wrote the clause. It's not just narrowly limited to crimes. They're going to have to decide whether they might consider seeking the removal of President Trump for things which are more like political offenses, which is, as the framers said, to the body politic rather than strictly violating federal law or not by committing perjury.

INSKEEP: Understood. Mr. Yoo, thanks so much.

YOO: Thanks, Steve.

INSKEEP: John Yoo was a top lawyer in the Justice Department under President George W. Bush.