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Trump Claims 'Absolute Right' To Do What He Wants To The Justice Dept. Can He?

Jan 4, 2018
Originally published on January 5, 2018 9:04 am
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This is FRESH AIR. I'm Terry Gross. President Trump has called Special Counsel Robert Mueller's investigation a witch hunt. Last week, Trump told New York Times reporter Michael Schmidt, I have the absolute right to do what I want to do with the Justice Department, implying that he can end the investigation whenever he wants. So what power does he have to stop or stymie the investigation into Russian interference in the election and any links and or coordination between the Russian government and individuals associated with the Trump campaign and how consequential is Paul Manafort's lawsuit against special counsel Mueller and Deputy Attorney General Rod Rosenstein?

Here to discuss those and other related questions is Neal Katyal who, in 1999, drafted the special counsel regulations under which Mueller was appointed. Katyal served as acting solicitor general under President Obama. He's the lead lawyer for the state of Hawaii's challenge of Trump's travel ban. He's argued many cases before the Supreme Court. In fact, that's where he'll be next week. He's a professor of law at Georgetown University and a partner in the law firm Hogan Lovells.

Neal Katyal, welcome to FRESH AIR. Let's start with some background before we get to the big questions surrounding the current investigation. Would you describe your role in writing the regulations governing the special counsel?

NEAL KATYAL: Sure. I mean, America's struggled ever since Watergate with this question about who's going to guard the guardians, to use Plato's phrase. I mean, so it's really even older than America. I mean, and it's obviously something after Watergate that had a lot of resonance. In 1978, Congress said, well, we know the solution. What we're going to do is we're going to have something called the Independent Counsel Act. We're going to set up a person who's going to be outside of the three branches of government empowered by congressional law to investigate.

Now, that was a pretty unusual thing because, after all, we have only three branches of government in our Constitution. They knew they were doing something unusual, but they also were kind of scarred by Watergate. And so what they said was we're going to pass this law, but we're going to let it sunset after a few years just in case it doesn't work. So automatically, it would expire. The existing investigations would continue, but you couldn't have new independent counsels appointed. And so that law worked. You know, it went into effect. And then it expired and went into effect and expired again.

And in 1992, it expired at the beginning of the Clinton administration. And the Clinton administration, Ms. Reno, did wind up renewing it a year or two after. And then that launched a whole series of independent counsel investigations. The most famous, of course - Ken Starr's investigation of Whitewater and the facts surrounding Bill Clinton's involvement with intern Monica Lewinsky. And I was a young staffer at the Justice Department. I just finished my clerkships, and I was there. And Ms. Reno asked me to put together a task force to think through, do we really want to renew this Independent Counsel Act?

And by the way, at that point, it wasn't just Democrats who were upset about the independent counsel. It was also Republicans. Ken Starr actually went and testified while he was a sitting independent counsel investigating Whitewater and Lewinsky, saying the Independent Counsel Act's a disaster.

GROSS: Wait, wait, wait. Let me stop you right there. What was considered a disaster about the Independent Counsel Act - so disastrous that the independent counsel was calling for its end?

KATYAL: Well, I do think it had to do with the constitutional anomaly of having this headless fourth branch of government not really subject to any particular constraints. Traditionally, in America, we have accountability as kind of a key feature of each branch of government in some way. So, you know, you obviously have to run for office. Or if you're a judge, you've got to be nominated by political officials and so on. But here, you really had the independent counsel being appointed by the attorney general and then kind of given carte blanche to do what she or he would like.

GROSS: So I'm going to ask you the question I'm sure you're most often asked which is, does President Trump have the power to fire special counsel Robert Mueller?

KATYAL: I think the answer to that is yes. And I think he can do it in, you know, either directly or indirectly. Some people think it can only be indirect. But I think, either way, there's a way in which it can get done. So these regulations are Justice Department regulations. They can be removed by another attorney general or an acting attorney general potentially. So the president could theoretically order Sessions to remove these regulations as a whole.

GROSS: Even though Sessions is recused from this investigation, he can be ordered to remove the regulations?

KATYAL: Well, possibly. I mean, I think it will get into a dicey question which the courts have never actually dealt with. But there is the possibility that the special counsel regulations are - I think the argument would go bigger and not just about any one special counsel but in general. I think the more prudent course of action - the administration hasn't been taking many prudent courses of action, but if they were to take the, you know, nuclear step of getting rid of the special counsel regulations, it would probably be wise for them as a belt-and-suspenders move to have - to order both Rosenstein and Sessions to remove the regulations.

Now, doing so - and this is something we struggled with from 1998 to 1999 in the drafting the regulations all the time. We knew this was a possibility. And, you know, as I said, there was one kind of key concern, which is the fear of a government cover up. And so you knew that there was a theoretical possibility the president could do it and not just a theoretical possibility, but we actually had that happen in our lifetimes because that's what President Nixon effectively did.

He said we're going to fire the special prosecutor Jaworski. And he ordered Justice Department officials to do so, and they refused. And he had to go down the line of succession until we got to the solicitor general at the time who allowed for the firing to take place. So you have that. But, you know, Arch's study, in conclusion, was actually the system worked pretty well. That was a horrible anti-democratic, anti-truth seeking, un-American thing to do, but it led to President Nixon's downfall. He had to take the heat - the political heat for ordering that step.

And similarly here, with the special counsel regulations - yes, to answer your question again, the president has the power to remove the special counsel. But if he does so, he will trigger a constitutional apocalypse the likes of which we have not seen since Watergate.

GROSS: What does that mean? People say it would trigger a constitutional crisis, but what exactly does that mean?

KATYAL: What that means is that the president, by firing the one entity that is empowered to fully investigate him free of ordinary political interference - if he short circuits that and he takes a step that is so fundamentally anti-truth, that I don't think that there's a way a president could survive that. And remember, you know, it's not as if a special counsel has the power to throw someone in jail by themselves no matter who they are.

And, you know, I would love to talk about who this special counsel is, Robert Mueller and his credentials, in a moment. But let's just say you had one that - an attorney general appointed a bozo. The bozo wouldn't be able to, you know, put someone in jail. The bozo first has to work with a staff and is supervised by the acting attorney general of the United States. Now, who's the acting attorney general of the United States - the Deputy Attorney General Rod Rosenstein. And who put Rod Rosenstein in power? It wasn't Barack Obama. It was President Trump. This is - Rosenstein is Trump's guy. He's the guy he put there.

GROSS: So if President Trump asked the Deputy Attorney General Rod Rosenstein to fire the special counsel Robert Mueller and Rosenstein refused, then he could - then Trump could fire Rosenstein, and his replacement would be asked to fire Robert Mueller and that could go on for a while. But the other possibility - or at least another possibility that President Trump could use would be to fire Rod Rosenstein and to replace him with somebody who would have a very favorable eye toward President Trump. So is that a scenario that you could see playing out and working under the guidelines for the special counsel as you wrote them?

KATYAL: So it is possible for the president to try to fire Rosenstein. Rosenstein is a presidential appointee. As I say, he's Trump's guy, and he can be removed by Trump. He'd have to be replaced in some way in order for the deputy attorney general to have any function. So you'd have to put someone else in place. Normally, that requires Senate confirmation to put that person in place.

And I would suspect that there would be incredible blood on the floor of the U.S. Senate - I mean, just the most divisive debate possible if someone was being confirmed to replace Rod Rosenstein who, by all accounts, has done a good job supervising the Mueller investigation. So I think, yes, there's the theoretical power that Trump has, but it'll be constrained by, in practice, the problem that he couldn't confirm a new person to that post.

GROSS: You say that when you were writing the regulations guiding the role of the special prosecutor - you write, we could not prevent the prosecutor from being fired, but we could create regulations that would force tremendous sunlight into the process. What are you referring to there?

KATYAL: So, yeah, so a couple of things. Again, the kind of key concern is a government cover up. And the president has the power to cover things up in two different ways. One is, obviously, what we've been talking about thus far, which is firing the prosecutor as he gets too close or something like that. But the other strategy is death by a thousand cuts - you know, to subtly say you can't investigate X or Y.

And remember, the special counsel regulations say that the prosecutor - the special prosecutor has to be supervised by the acting attorney general. And we felt, constitutionally, that was the only way it could be done. And so the president's guy is there. And so you have to worry about the president's guy saying to Mueller, oh, you know, don't investigate that, don't subpoena that Deutsche Bank account, don't do X, don't do Y and...

GROSS: Not only saying don't do it, can't they say you can't do it?

KATYAL: Yes, exactly.

GROSS: Right, OK.

KATYAL: So they could - you know, so there is that possibility that, you know, in the course of supervision of the special prosecutor, the supervision results in effectively massive stymying of the investigation. What we said in the regulations is if the acting attorney general says no to the special prosecutor about something, the special counsel - that's got to be reported to Congress and not just reported to the majority committee of Congress, but to the minority committee no matter - whoever that may be, Democrat or Republican.

And so here, if you have a circumstance in which Rosenstein is shutting down some part of the investigation and saying don't go here, don't go there - that is something that has to be reported, not just to the Republicans in Congress, but to the Democrats alike and the Judiciary Committee.

GROSS: And are they allowed to make that public?

KATYAL: Well, that - there's an interesting debate. It'll depend on what the that is. So, for example, grand jury material - so-called 6(c) material - isn't something that can be made public. But, you know, in the course of drafting the regulations, we did feel that there will be enough ability for that - for information to come out that if there were any stymying going on, that there would be a way for the minority party to get that out.

GROSS: OK. Let me reintroduce you here. If you're just joining us, my guest is Neal Katyal. And he drafted the regulations defining the powers of the special counsel and the limitations of those powers. He's a lawyer who's argued many cases before the Supreme Court and has one coming up next week. We'll be right back after this break. This is FRESH AIR.


GROSS: This is FRESH AIR My guest is Neal Katyal. He drafted the regulations defining the powers of the special counsel and the limitations of those powers. So we're talking about the Robert Mueller investigation and what powers President Trump has to end or stymie that investigation. Neal Katyal served as the deputy solicitor general under President Obama. He's a lawyer in private practice now. But he still argues many cases before the Supreme Court.

So something that you point out President Trump could do is he could pardon everyone who's being investigated. Are you saying he could even pardon them before they're convicted of anything?

KATYAL: So there's a debate in the law about the so-called ex ante pardon. Can you pardon someone before a crime takes place? You know, if you watch, like, Fox's "24," Jack Bauer is going to commit a series of major crimes in order to save the country, and the president gives him a pardon ahead of time. So, you know, there's - at least as a matter of fiction, you know, we've seen circumstances like that unfold. But as a matter of practice, the pardon power has been limited to circumstances in which, you know, the crime has already occurred.

Here, the president could try the novel strategy to pardon people. He'd obviously face a massive political cost in doing so. You know, particularly, some of these folks have already pled guilty and admitted that they have engaged in serious federal felonies. But he might do that. There's another check, though. I mean, Mueller is, you know, a legendary prosecutor and investigator. And one of the things that, by news accounts, he's evidently done is start working with state authorities as well because there may be state crimes committed in New York and elsewhere.

And the president's pardon power in our Constitution does not extend to state crimes. And so even if the president pardoned people from federal crimes, such as Flynn or others who've agreed to, you know, be - agreed to plea deals in which they've said, yes, I've committed a felony - that wouldn't necessarily get them off the hook for any state charges.

GROSS: But if the president pardoned, say, Flynn who's already pled guilty to certain things, would that also relieve Flynn of any responsibility to further testify?

KATYAL: Well, the plea agreement - I mean, it's an interesting question, which I'm not sure that we've, you know, have any case law on. The plea agreement is about, you know, the fact that he's got a deal in exchange for a lighter sentence. He's going to get certain - you know, he's going to have to cooperate. If there is no sentence on the table, presumably, the agreement itself is null and void but then so, too, is his ability to deny - to refuse to testify because, ordinarily, you know, you can't force someone to testify because of Fifth Amendment concerns. But if he's already gotten a full pardon, then it seems like he can't really assert the Fifth Amendment so...

GROSS: Oh, because he can no longer incriminate himself?

KATYAL: Exactly. So there's a way in which pardoning Flynn, actually, just turns the spigot back on for Mueller to get the information that he wants.

GROSS: This is a real chess game, isn't it?

KATYAL: It is. I mean, in all these high stakes criminal cases, it's always a chess game. So, you know, I don't want to, you know, say that, you know, this is, you know, something that we've never seen before, but when you have the layered on top of it political dynamics that are going on then it becomes really, you know, 3-D chess.

And, you know, one of the things that we haven't talked about thus far, but when you have the president impugning the integrity of the FBI and of their agents and of the Justice Department and their agents, and calling, as he did in a tweet this week, the Justice Department as part of the deep state, you know, think about all those other investigations and what the effect is on that. Not just morale of agents and so on, but what are criminal defendants going to do? They're all going to say things like the Justice Department is biased, it's against me and all sorts of things. And, you know, the thing that, you know, has stood from administration to administration, Republican and Democrat alike, is the idea that the Justice Department is independent of politics, it calls it like it sees them.

GROSS: So we know that the president has the power, if he chose to use it, to fire Rod Rosenstein. Does Rod Rosenstein have any power to protect Mueller and the investigation? You know, to protect them from presidential intervention or presidential stymying other than the power to say, no, I'm not going to fire Mueller?

KATYAL: I don't think that Rosenstein has any formal powers in this regard. That is, our Constitution is set up, at least in my view, as a unitary executive system in which the president controls what goes on in the executive branch. And for all sorts of good reasons, we want presidents to be able to act quickly and to, you know, have direct lines of accountability to those who work under him. So I do think that the president would have the power to say to Rosenstein, stop the investigation or I'll fire you. But at the same time, criminal investigations are things with lots of documents and lots of leads. You know, that's now been dispersed not just with Rosenstein and Mueller but with a whole team of people at the FBI and potentially state authorities, as well. If the president did take the step of firing Rosenstein in order to get at Mueller or something like that, or firing Mueller, it's not necessarily clear that it would work anyway because someone will presumably take up that investigation and somehow that information will come to light.

I mean, Rosenstein might even invoke the whistleblower statute, which allows, you know, government employees to go to Congress and even reveal classified information if they have to, to appropriately cleared members of Congress. And so there's a lot of different possibilities here for, you know, some sort of checks and balances against a presidential move in this regard. But certainly the president's whole attitude and demeanor toward it has been, I'm the president, and - the tweet last week - he said, I have the absolute right to do whatever I want to the Justice Department.

GROSS: So I don't know if this is outside of your view or not, but the House and the Senate have intelligence committees that are also investigating any connections between the Trump campaign and Russia and Russian interference in the American election. Are there things that they can do that would make it difficult for Mueller to pursue his investigation?

KATYAL: Absolutely. And, you know, this is something you have to worry about when you have kind of rival investigations going on at the same time. And we saw this, you know, viscerally, in Iran-Contra because Oliver North was invited to testify as part of the Senate investigation and he was then later convicted by the independent counsel Lawrence Walsh. And North then went and challenged his conviction and said, hey, that's not fair, I was forced, effectively, to testify in the Senate. I had an immunity agreement, and now you Walsh prosecutors, you took what I said in the Senate and used it against me in violation of my Fifth Amendment rights. And the court agreed and nullified aspects of the conviction.

And so, you know, this is always a big concern when you have this. And so in some ways the Senate, by not doing as much as I know that they're getting some criticism for not doing a lot in the investigation, but there's a way in which at least some of it might be responsive to what Mueller himself is asking and saying, look, I don't want you to put those witnesses up there because if you put them up there, it might compromise my own investigation.

GROSS: My guest is Neal Katyal. In 1999, he drafted the special counsel regulations defining the powers and limitations of that position. Robert Mueller is now operating under those regulations. We'll talk more after a break, and Ken Tucker will review a new box set of performances recorded in the 1950s at the country music showcase the Louisiana Hayride. I'm Terry Gross, and this is FRESH AIR.


GROSS: This is FRESH AIR. I'm Terry Gross, back with Neal Katyal. In 1999, he drafted the regulations defining the powers of the special counsel under which Robert Mueller was appointed. Katyal was acting solicitor general in the Obama administration and has argued 35 cases before the Supreme Court. When we left off, we were talking about ways in which the House and Senate investigations into Russian interference in the election and links to the Trump campaign could actually make it more difficult for Mueller to pursue his investigation.

Are there ways that you think the House or the Senate intelligence committee is intentionally making it difficult for Mueller?

KATYAL: It does look at least like the House committee, and, you know, some of the antics by the, you know, the person running the investigation now, Devin Nunes, like, you know, midnight meetings at the White House and so-called stuff. I mean, there's something going on there. But so I do think that, you know, the House has not, you know, shown itself to be a model of investigative prowess on this. There's a very interesting New York Times editorial that came out on Wednesday of this week by the folks who put together this so-called fusion dossier, which you know, which has - which some were arguing launched the investigation by the FBI. You know, they point out, no, the investigation had already been occurring. But they did say, look, you know, why don't you just release everything that we told you? Because we think it's an important part of the story and will show that not only did we do nothing wrong but that there's some serious high-level wrongdoing going on here. And they said, look, none of it's classified. It should all come out into the open, but the House has blocked the release of that testimony.

GROSS: Right. The two people who wrote that op-ed you're talking about, Glenn Simpson and Peter Fritsch of Fusion GPS, they're calling for the release of 21 hours of testimony that they gave. And they say - in that testimony, they explained how they were hired. They say the transcripts show that they suggested to the committee that the investigators look into the bank records of Deutsche Bank and others that were funding Trump's businesses. They write, (reading) but Congress appeared uninterested in that. Reportedly ours - the Fusion GPS - are the only bank records the House intelligence committee has subpoenaed.

Also they said that they told Congress that (reading) from Manhattan to Sunny Isles Beach, Fla., and from Toronto to Panama, we found widespread evidence that Mr. Trump and his organization had worked with a wide array of dubious Russians in arrangements that often raised questions about money laundering. Those deals don't seem to interest Congress, they write.

And there's a lot more in this op-ed. What power, if any, do Simpson and Fritsch from Fusion GPS have to say, we insist that you release our transcript so that the public knows what we said and what we said on the record?

KATYAL: Yeah. I don't know the answer to that. I think it's an interesting question. It's, after all, their words. And I don't really see how the investigators could block that. You know, even if you go to a grand jury, I mean, you know, you're allowed to talk about what you said to the grand jury at the end of the day. I mean, you know? So, you know, they're your words. You own them. So I do think they could probably, you know, summarize what they said, but obviously what they really want to do is release the actual words, the actual transcripts. And presumably they don't have a recording of that. That's only something that the House has. And I do think, you know, that by all accounts, this information should be released. I mean, maybe there's the possibilities we were discussing earlier that Mueller himself has said, please, don't release it, for one reason or another. If that's the case then it seems to me that the House has to clearly say, we're not releasing this because there were requests by the special counsel Robert Mueller. Right now it looks like we're not releasing this because it implicates our guy or our guys, and that is a very, very dangerous appearance of impropriety.

GROSS: So let's talk about the powers of the special counsel, the powers that Robert Mueller has now. His, like, mandate, the way I understand it, is to investigate any links and or coordination between the Russian government and individuals associated with the campaign of President Trump and any matters that might arise directly from the investigation. What does that other part mean, any matters that might arise directly from the investigation?

KATYAL: Well, you have to look at that in conjunction. You're reading from the appointment letter that Rosenstein made for Robert Mueller, and it does say it gives him the power, as you said, to be, anything associated - individuals associated with the campaign of President Trump and any matters that arose or may arise directly from the investigation. But there's also a third clause, which is and any other matters within the scope of 28CF4600.4, paragraph A. And I don't mean to be technical here, but that's actually important because what it effectively does is, Rosenstein's letter does, is it says, look, you look for anything about links and coordination associated with the campaign to President Trump then any matters that you find directly arising out of that.

So it's not just links or coordination between the Russian government, but let's say you find evidence of money laundering. That is something obviously that's directly arising from your investigation of links and coordination. But then there's that third clause, which is any other matters within the scope of that 600.4 clause. What is that? Well, that deals with, if you look it up, it deals with things like obstruction of justice.

And that's significant because at least, you know, according to news accounts - and we don't know because Mueller himself has so much integrity, he's not going to talk - but it looks like one of the things he's investigating, at least according to witnesses who have come before and, you know, given him interviews and so on, is whether or not the president fired Jim Comey as FBI director because that FBI director was on his tail and on the campaign's tail in showing that, you know, that there was collusion and links and coordination and the like. And firing the prosecutor who's about to get you or your campaign is kind of quintessential obstruction of justice. And so Rosenstein, when he wrote the letter, was very careful to say it's not just about the investigation for links and coordination of Russia and not just about direct matters, but also indirect matters as well, such as the firing of Jim Comey.

GROSS: So say Mueller finds that President Trump has obstructed justice. Can he be tried for that while he's a sitting president?

KATYAL: So that's a deep question in constitutional law. There are different scholars that have different answers to that question, and it'd something that will be hashed out in the courts should Mueller do that. I think probably, you know, from my perspective, the folks who say a sitting president cannot be indicted have the better of the argument that the president can't be indicted, put, you know, through a criminal trial while he is president, and that the proper way to do it is to impeach him first, remove him and then seek criminal prosecution.

GROSS: Of course, impeachment is a very political process. And everybody, I think, is hoping that the special counsel investigation is free of politics, that it's an impartial but deep investigation into what happened. So, you know, the political view of things is different from the judicial view of things.

KATYAL: Absolutely. And I do think that's why, you know, the hope here is that the special counsel finds information or doesn't find information that's decisive in one way or the other. And I certainly think that's what we can expect from someone like Mueller. He's not going to, you know, accuse on the basis of innuendo or something like that. And, you know, it should be said that his investigation seems to get stronger by the day. I mean, just, you know, on Wednesday of this week, you had, you know, the president's top strategist, Steve Bannon, saying to - in a book that, you know, it's very clear to him that the - that when the Russian government came to Trump Tower - the Russian officials came to Trump Tower to meet with Jared and others, that something was going on there and that he even suspects that Trump met those Russian officials.

Regardless of whether or not, you know, his conjecture is true or not, I think he said something else that was really important. He said, look, if, you know, the Russians come and meet with your high-level campaign people and offer you dirt, isn't your first thing to do, like, go and call the FBI? And they didn't do that. And that looks really, really suspicious. And now it's not just, you know, the left-wing media or even Robert Mueller who's saying this. This is the president's top - you know, former chief strategist - obviously, someone incredibly close to the president - saying, boy, something really went afoul here.

GROSS: Yeah, so the Bannon quotes that you referred to are in a new book by Michael Wolff. And in response to those quotes, President Trump said that when Bannon lost his job, he also lost his mind.

KATYAL: Yeah. I mean, at some point, you just really have to wonder about this president who - you know, who does he trust? I mean, he obviously doesn't trust the media. He doesn't trust the Democrats. He doesn't trust the Republicans. He now doesn't even evidently trust his own former national security adviser, Michael Flynn, nor does he trust his former campaign chair, Paul Manafort. Nor does he trust his chief strategist, Steve Bannon. He doesn't trust, as we were discussing, so-called judges.

He doesn't trust the director of the FBI, Jim Comey. He doesn't trust the lying attorneys of the Justice Department or of the FBI. He doesn't even trust his own guy who he put the DOJ, Rod Rosenstein. So, you know, I guess, you know, at some point, the entire world could be conspiring against him, and he might be the only sane guy in the world. But normally, you know, it's - when one thinks that way, it suggests quite the reverse.

GROSS: If you're just joining us, my guest is Neal Katyal. He drafted the regulations defining the powers of the special counsel and the limitations of those powers. He is also the lead lawyer for Hawaii in the challenge to President Trump's travel ban, a case that he expects to be argued eventually before the Supreme Court. And he served as acting solicitor general under President Obama. We'll be back after this short break. This is FRESH AIR.


GROSS: This is FRESH AIR, and if you're just joining us, my guest is Neal Katyal. He drafted the regulations defining the powers of the special counsel and the limitations of those powers. And this was back in 1999 that he drafted those regulations.

So what happens when the investigation is over, assuming Robert Mueller continues it until the point where he thinks he's done? Say he's found more criminal offenses or at least what he thinks to be criminal offenses. Then what?

KATYAL: Well, then he does what every prosecutor does, which is to seek the indictment by a grand jury of these individuals. And that can be as high as the vice president of the United States. I'm not saying that that exists here, but certainly, we've had circumstances in which vice presidents have been accused of crimes. It might even potentially include the president, but that goes back to that question you asked earlier. Can a sitting president be indicted?

But my guess is that Mueller would indict everyone else but the president. He would call him an unindicted co-conspirator, which is exactly what the prosecutors in the Watergate indictment did in 1974. And that amount of political pressure, particularly when you're dealing with folks who very well may be convicted by a jury of their peers, will speak volumes about the complicity of the president of the United States.

GROSS: So as we're recording this interview late Wednesday afternoon, which, by the time we play this, will be yesterday...


GROSS: There's breaking news. So Paul Manafort - this is really big and confusing. Paul Manafort is suing Robert Mueller, the special counsel, and asking a federal court to narrow Mueller's authority. And Manafort is saying - Manafort was convicted on money laundering charges related to the years when he was a foreign lobbyist, before he was part of the Trump campaign. And so he's saying in this lawsuit that Mueller has gone too far. And he's not only suing Mueller. He's suing the deputy attorney general, Rod Rosenstein, the person who appointed Mueller. Is this unprecedented? What does this mean? What do you make of this, Neal Katyal?

KATYAL: It's not unprecedented. It's the typical desperate action by a criminal defendant who's about to have his world turned upside down. We certainly had circumstances in the past when which targets of independent counsels argued similar things - the investigation is too broad and the like - and they were met with universal, you know, failure as legal arguments. I mean, here, I think the Justice Department spokesperson just a few minutes ago from the recording of this interview said, quote, "the lawsuit is frivolous, but the defendant is entitled to file whatever he wants." And I think that gets it exactly right.

This is a 17-page document that is going nowhere. It's a, you know, shot across the bow that is destined to failure. That is, you know, absolutely, the way the regulations are given - written - the - Rosenstein has the power to give Mueller as much investigative authority as he wants. As long as he's supervising, I don't think there's any legal argument whatsoever that Manafort has. And I predict this will be denied in the ordinary course of things.

GROSS: So you were saying that if Mueller finds evidence that President Trump has committed a crime, such as obstruction of justice, that it's unlikely that the president could be directly prosecuted for that crime because he is a sitting president. So what would have to happen is that the president would be - would have to be impeached first before any prosecution went forward. Do you think that there's a chance that if a crime was discovered by Mueller, that the House would impeach the president, given that Republicans are in the majority and that impeachment is - it's a pretty partisan political process?

KATYAL: It is a pretty partisan political process. But, boy, when you have, you know, credible evidence that the president has committed a crime to the point which is written in a federal indictment which a grand jury has signed off on, and the only reason the president isn't being put in a criminal trial is because he is the president, I have enough faith in everyone, Democrats and Republicans alike, to do the right thing.

Now, you know, faith is only worth so much. And so - and I think faith is only so much to Mueller. He's got another move. It's not just impeachment. He also has the possibility of state charges being brought against the president. And then again, there's going to be an interesting constitutional question. Can a state - say, New York - indict a sitting president? But, you know, there's going to be at least one other avenue out there.

And at the end of the day, all of these things - state trial, federal trial, impeachment - they're all designed to get at the basic foundational thing, which is, what's the truth? What happened? And a president that is shutting all of these lines of inquiry down looks deeply suspicious, and one way or another, I think the genius of the American system is that the truth comes out and wrongs are righted, particularly when they were wrongs committed by the president of the United States.

GROSS: Well, Neal Katyal, I thank you so much for talking with us.

KATYAL: Thank you. It's been a delight.

GROSS: Neal Katyal drafted the regulations defining the powers and limitations of the special counsel. He's a professor of law at Georgetown University and served as acting solicitor general in the Obama administration. After we take a short break, Ken Tucker will review a new box set of performances recorded in the '50s at the country music showcase the Louisiana Hayride. This is FRESH AIR. Transcript provided by NPR, Copyright NPR.