MSNBC "The Last Word with Lawrence O'Donnell" - Transcript: "Mueller: the President could be charged."

Interview

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O`DONNELL: Joining our discussion now is Democratic Congressman Sean Patrick Maloney of New York. He`s a member of the House Intelligence Committee. Congressman, first of all, thank you very much for asking the question that I wanted to ask, but it was such an obvious question and I was sure someone would ask it. Do you feel it was answered? Do you feel you now know why they did not subpoena the president?

MALONEY: Yes, I sure wish they had, though. I think it`s very important to listen to what the director said and what he said is -- by the way, they wrote this in appendix C and page 13 of volume 2, that they had significant and substantial evidence of the president`s intent to obstruct justice, and they said a bunch of cases where, it -- you know, those cases point out that you frequently show intent to obstruct justice without an interview of the investigation subject, that`s often how it works because people don`t admit they were trying to obstruct justice. And in those cases, it`s more than enough to infer intent. And when you say you have substantial and significant evidence of the president`s intent, my point was simply they are telling us on those pages that they thought they had enough.

O`DONNELL: Yes, and I had found that use of the word intent and I have to say it surprised me when I landed on that use of the word intent because how would you establish intent without talking to the witness but as you point out, they believe that they had so much information that it clarified intent, but, but, the report does not then say what the intent was and Robert Mueller didn`t say that yesterday.

MALONEY: Well, that`s because remember the special counsel is basically in a box. He can`t prosecute the president and he said that fairness concerns would prevent him from accusing the president of a crime without giving the president the opportunity he would have to defend himself in a normal situation where he was charged with a crime. Therefore, this is the most you can do. In other words, you can forgive the special counsel for laying it all out on ten different instances of obstruction saying he had sufficient evidence without an interview of the president`s intent, a key element and believing that the attorney general would care about that and wouldn`t lie about it to the American public or dissemble or hide it for weeks, and, by the way, that the Congress would care. I think he told us everything he could tell us under the department`s rules and under the fairness concerns they were operating under.

O`DONNELL: Yes, those department rules that prevented him from discussing deliberations. That was an enormous thing to leave out, because you could have asked him about the discussions of the office about this decision to not issue the subpoena. But what about the part of his answer where he said we basically just didn`t want to take the amount of time given that there was no time limit on the investigation, why would he be concerned about the amount of time it would take to enforce that subpoena?

MALONEY: Yes, I think that`s a hard question and I`m disappointed that they didn`t take that time. I served in the White House when a president was put under oath for hours before a grand jury on videotape under oath and that was because the independent counsel had subpoenaed the president. That was President Clinton, and that was the moment when the American public had to see him answering tough questions under oath. We should not have been deprived that moment of this president. Donald Trump should have been put in a chair and asked tough questions and I regret that. But I want to say that respectfully because I believe here the special counsel was telling us something important, which is that he had a -- he had substantial and significant evidence. Those are his words of the president`s intent to obstruct justice and they lay it out chapter in verse and he was under constraints previous counsels were not under. So, in a sense, this is the best you were going to get.

O`DONNELL: Yes, and he -- big distinction he was not an independent counsel like Kenneth Starr. He was special counsel, and, unfortunately, for Robert Mueller and his team, that meant they could be fired at any time, and there was the president of the United States in effect publicly threatening to do that. Then there comes a day in Don McGahn testimony where they discover the president has already a couple of times ordered Robert Mueller to be fired. And one of the questions I was wondering about which no one got to yesterday but maybe further investigation it will come out, was Robert Mueller or anyone in the Mueller team concerned, concerned about the possibility of being fired by the president and if they were concerned, did that affect the speed of their investigation? Did that in effect speed them up? Might that explain why Robert Mueller felt there was in effect a time limit with the threat of being fired by the president?

MALONEY: I suppose that`s possible and there was, remember, a brand-new attorney general coming online.

O`DONNELL: Yes.

MALONEY: And worked for that attorney general as you point out so the attorney general was confirmed I believe in early March, I want to say and the report was done two or three weeks later. So, I think there were definitely a lot of things coming together at that time frame but honestly, and again, respectfully of Mr. Mueller because I have enormous respect for him. It was 16 months after his appointment that they got written answers and those written answers were by his own language incomplete, imprecise, inadequate and they were getting rope-a-dope by the president`s lawyers for months and months. They had to know, they had to know they were never going to get anything truly useful out of the answers. So, there was always going to have to be a subpoena and an in person interview. I guarantee the president`s lawyers were surprised they didn`t have to give one of those, and I just think it`s one of the great missed opportunities of this investigation because we`ll never see this president sitting in a chair under oath answering the tough questions and I sure wish we had had that opportunity.

O`DONNELL: I could do this with you all night. The one other point I`d make, Robert Mueller specifically did not answer the question of which was president going to invoke the Fifth Amendment. So if they had a Fifth Amendment conversation and Mueller and company knew that even if they enforced subpoena, Donald Trump will sit there and take the Fifth Amendment to everyone question, that could be another reason not to do it. But so much more investigative work for you to do this.

MALONEY: Well, there are some serious unanswered questions and I think it definitely under scores the role that Congress needs to play given the constraints the special counsel is under. We`ve got work to do.

O`DONNELL: Congressman Sean Patrick Maloney, very good work yesterday, thank you for joining us tonight. I really appreciate it.

MALONEY: My pleasure.

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