Jerrold Nadler, the Investigator

The day before special counsel Robert Mueller’s report on Russian meddling in the 2016 presidential election was released, Rep. Jerrold Nadler was already convinced that it was inadequate, that the only choice he had as chairman of the House Judiciary Committee was to pick up the investigation where Mueller left off.

Nadler was unruffled by critics on the right and the far left who emphasized that Mueller’s team of 19 lawyers, 40 FBI agents, intelligence analysts and forensic accountants had spent nearly two years and more than $25 million investigating President Donald Trump and his aides and advisers, while coming up short on the central question of conspiracy.

Mueller did charge 34 people and three companies – including more than a dozen Russians who allegedly sought to influence the election and top Trump aides like former campaign Chairman Paul Manafort, who was convicted of unrelated crimes – but the investigation concluded without a single indictment of an American for conspiring with Russia.

Yet Nadler had already signaled that Mueller’s report would not be the last word, sending letters and document requests to 81 individuals and other entities in pursuit of evidence of “obstruction of justice, public corruption, and other abuses of power” by Trump and his associates.

When the special counsel report was delivered to U.S. Attorney General William Barr in March, no new indictments were announced. When City & State spoke with Nadler, Barr had issued his four-page summary that said that Mueller did not determine whether anyone had obstructed justice. Barr also made the highly controversial claim that there wasn’t enough evidence to charge anyone with the crime.

But Nadler remained certain that there were additional crimes, that the evidence clearly showed collusion, that the president may have obstructed justice or committed other impeachable offenses – and the Manhattan congressman said he would not rest until he got to the bottom of it.

“Remember, the special prosecutor is looking at crimes,” Nadler told City & State in an extended interview in his Manhattan district office on April 17, hours before he and the rest of the American public had a chance to read a redacted version of the full Mueller report for the first time. “Crimes demand proof beyond a reasonable doubt, so if Mueller says we’re not charging him, what he’s saying is: We don’t have evidence in our opinion beyond a reasonable doubt. Period. We’re looking to see what happened. Who did what. I’m not saying the president should be impeached, that’s a different question, but there are grounds for impeachment which are not crimes.”

While the president and Republican lawmakers have assailed Nadler for continuing his “witch hunt,” Mueller did leave the door open for further action. “While this report does not conclude that the President committed a crime, it also does not exonerate him,” Mueller wrote. “We concluded that Congress has authority to prohibit a President’s corrupt use of his authority in order to protect the integrity of the administration of justice.”

Now, as Nadler charges ahead and leads congressional Democrats into a high-stakes confrontation with the White House over access to Mueller’s unredacted report and all the underlying evidence, as well as attempts to compel testimony and obtain documents directly from key witnesses, questions remain: What could Nadler hope to uncover that Mueller did not? And what impact will his actions have in 2020, when many Democrats are intent on knocking Trump out of office at the polls?

In his interview with City & State last month, the House Judiciary Committee chairman laid out a detailed legal case for his ongoing investigation, including why he thinks Donald Trump Jr. committed a crime. This interview has been edited for length and clarity.

You have asserted that President Donald Trump obstructed justice, but Robert Mueller concluded that there was insufficient evidence of conspiracy between his campaign –

What the special prosecutor is looking at, remember he’s a prosecutor, he’s looking at crimes, crimes demand proof beyond a reasonable doubt, so if he says we’re not charging him, what he’s saying is we don’t have evidence in our opinion beyond a reasonable doubt. Period. That’s what he’s saying.

After Mueller spent 22 months and more than $25 million investigating, why aren’t his conclusions convincing?

In most things in life when we say, did someone do this or not, we don’t demand proof beyond a reasonable doubt. That’s a very high standard. And that’s all a prosecutor talks about, does he think that he has evidence sufficient to establish the crime beyond a reasonable doubt. He may very well have strong evidence that it happened but not that strong. So that’s not saying it didn’t happen, that’s not saying the person isn’t guilty, it’s saying there’s not enough evidence to charge the person under that standard.

Based on the document requests you sent to 81 individuals and entities, it looks like you’re going over a lot of the same ground as Mueller did. So what are you looking for, if not crimes?

We’re looking to see what happened. Who did what. Talk about impeachment, for example. I’m not saying the president should be impeached, that’s a different question, but if you were looking at that, there are grounds for impeachment which are not crimes. Equally, there are crimes which are not grounds for impeachment.

Can you give an example of something that is an impeachable offense that isn’t a crime?

Sure, let me think a minute.

Something related to President Donald Trump, something conceivably he could have done.

OK, the president agreeing, or the president knowing that subordinates in his campaign are working with the Russians to get help for the campaign and not objecting, letting them do it. Maybe he didn’t instruct them, maybe you can’t prove beyond a reasonable doubt – well forget the reasonable doubt, he didn’t commit a crime. He didn’t positively do it, on the other hand, he let something completely subversive of a national election occur.

Like possibly the Trump Tower meeting, where his subordinates –

Well, OK, let’s assume that he knew about the Trump Tower meeting. Let’s assume that he knew of other actions. Let’s assume that he didn’t instruct anyone to do anything, he just let all of his subordinates do these things. I would say that’s impeachable. I mean, depending on what they did obviously. But it’s not necessarily a crime – he didn’t tell them to do it.

What’s the difference between Hillary Clinton’s campaign and the Democratic National Committee funding the Steele dossier?

There’s nothing wrong with that.

Why?

There’s nothing wrong with funding opposition research. There’s something wrong with a foreign government funding opposition research. There are laws that say you cannot, a campaign cannot, accept help from a non-American.

Christopher Steele is not an American.

But he was paid.

He also went to Russia to get information.

That’s perfectly fine. Let’s assume for the moment that an American went through Russia to try to get information from Russia to benefit Hillary’s campaign – there’d be nothing wrong with that. Unless he paid off the Russians, which is a separate question. He could do that as a volunteer. He could do that for pay. If he’s not an American, however, he can’t do that because a non-American may not contribute to a political campaign. Now a non-American, therefore, could not go to Russia, get information and give it to the Hillary campaign unless he was paid. If he was paid to do it, he’s an employee. He’s allowed to do that. It’s not a contribution. So, Steele – if he is hired by the Hillary campaign, or by someone on behalf of the Hillary campaign, it’s perfectly OK to try and get information and give it to the Hillary campaign.

How is this different than Donald Trump Jr. meeting with Russian lawyer Natalia Veselnitskaya?

There’s two things wrong with it. No. 1, the people he’s meeting with are not Americans. Therefore, they’re not permitted to give anything of value to the campaign, unless they’re paid for it, fair market value. They can’t make a contribution. It’s against our laws for a foreigner to make a campaign contribution. Campaign contributions can be a check, here’s a thousand dollars. Or it can anything of value. Here’s information on Hillary.

That’s something of value to the campaign. Therefore it’s a contribution. I am giving you something of use to the campaign. If I’m giving you a chocolate cake, and it’s not of use to the campaign, it’s not a campaign contribution. If I’m giving you something of use to the campaign, with the intention of helping the campaign, that’s a contribution. It’s what’s called an in-kind contribution – it’s not cash – it’s an in-kind contribution. It’s perfectly OK to give an in-kind contribution, if you’re an American and if the value of that is under the campaign contribution limits. But if you’re not an American, you’re not allowed to give a campaign contribution, nor is the campaign permitted to take it.

Wouldn’t a prosecutor with the stature of Robert Mueller, after Donald Trump Jr. testified for hours, why would he not –

I don’t know. I don’t know. I don’t understand why. And one of things we want to see in this report is the reasoning. Donald Trump Jr., from what we know publicly, without any private knowledge, is the recipient of an email that says, “We want to meet with you, to give you dirt on Hillary as part of the Russian government’s campaign to help Donald Trump’s election. That’s what it said in the invitation. They take the meeting. What that invitation is saying is we want to give you something of value to the campaign, which makes it illegal, since we’re foreigners. Having that invitation to a meeting for the purpose of getting an illegal contribution, Trump Jr., and Jared Kushner and the campaign manager, Paul Manafort, go to the meeting. Trump Jr. says at the meeting, after it’s described to him, “If it’s what you say it is, wonderful!” If I were a prosecutor, I think I’d prosecute just on that. Not Trump, but the people who went to the meeting.

(Editor’s note: Mueller found that he could not apply campaign finance law to an illegal gift from a foreigner because the information offered was of so little value – less than the $2,000 threshold required to charge the Trump associates with a misdemeanor, let alone the $25,000 threshold for a felony punishment. Nadler’s office noted last week that the House Judiciary Committee is in discussions with Mueller to testify and expects him to appear before the committee in the near future.)

Because they went to the meeting, this is an impeachable offense?

No, it is not an impeachable offense. I’m saying, I think that they committed a crime, because the crime is conspiracy. Conspiracy is defined as two or more people agreeing to do something, illegal or improper and taking one overt act. So, if you and I agree to rob the bank, and joke about it, and never talk about it again, that’s not a conspiracy. But if you and I agree to rob the bank and you rent the getaway car, we’re both guilty of conspiracy. You follow me? An overt act. I think that going to the meeting was the overt act.

Now, it may very well be that you can’t prove that Donald Trump knew about that meeting, or knew about what was agreed to at that meeting, in which case, he hasn’t committed a crime. But Donald Jr., I think, has. And Manafort has, and Jared, whoever went to that meeting. Especially whoever went to that meeting and said – and I think it was Donald Jr. – “If it’s what you say it is, I love it.” That shows he knew exactly what he was doing. That’s more evidence of guilt. I don’t understand why they’re not indicting some of the people who went to that meeting. Why you’re not indicting Trump is maybe you can’t prove he knew about it, or agreed to it, wasn’t at the meeting, who knows? But that’s why Adam Schiff is saying and I’ve said there was collusion in plain sight. That’s collusion!

So had Donald Trump Jr. paid this person, it would’ve been fine?

If he paid fair market value, it wouldn’t be fine, morally, but it wouldn’t be a violation of the law. Now forget the crime for a moment, in terms of patriotism and morality. You don’t let a foreign government or people who are working in a foreign government interfere in the campaign. The only proper response, the only proper response, to an invitation from the Russians to help you in the campaign is to report it to the FBI. Period. It’s the only patriotic response. Now, I can hire for a campaign someone to do a job so long as I pay fair market value. It’s not a campaign contribution. He can make a campaign contribution as long as it’s not more than $2,700, unless he’s a foreigner, which can’t make any campaign contribution. So if Hillary’s campaign hires Fusion GPS, which hires Christopher Steele, there’s nothing wrong with that. Campaigns hire research firms all the time to get research about whatever opposition research it’s recognizing in the campaign. Nothing wrong with that. Period.

Do you challenge the legitimacy of the 2016 election results?

No. No. The results are what they were. And there’s no provision for challenging the legitimacy of the election results. By the way, let’s assume – and maybe this is a problem in the Constitution – let’s assume the Electoral College voted for Trump – he needed 270 votes – let’s assume there were 273 votes – I mean there were more, but let’s assume there were 273 votes. Let’s assume, and therefore he was declared elected, he’s inaugurated and so forth. Let’s assume that 10 of them were bribed. They were paid $50,000 a piece to cast their votes for Trump. There’s no provision to undo anything. They can go to jail, but the election is the election – it’s over. You can challenge the moral legitimacy, maybe, but you can’t challenge the legal legitimacy of the election.

Is there anything wrong with the fact that the Foreign Intelligence Surveillance Act application, which served as a basis for the FBI’s investigation into Russian meddling in U.S. elections, was based partially on this Steele dossier –

No! Nothing wrong with that, either. … The Steele dossier was a collection of documents. All of it, almost all of it admittedly, was unvetted, not proven. Everything we know so far that’s been tested has proven accurate. Lots of things haven’t been tested yet. Nothing in that memo has been proven to be false.

Nothing?

Almost nothing, maybe nothing. I’m not sure. Most, or all, of what’s been verified, one way or the other, has been verified as accurate. But that’s not the point. It may have been 90% accurate and 10% inaccurate. They may know that it was totally accurate and said this was raw, unfiltered intelligence data.

Can you be specific as to what was verified?

You’d have to look, it’s been all in the public. Lots of things have been verified, but that’s not even the point. When you apply for FISA Court applications, this is intelligence work. You’re not dealing with facts proven beyond a reasonable doubt because you’d never get a warrant. You’re dealing with indications, with rumors, with testimony that isn’t verified, sufficient to cause a FISA Court to allow you to get through, to issue the warrant. It’s what is it. It’s not proof beyond a reasonable doubt. It’s probable cause, which is a very low standard. In the FISA application, the Steele dossier, or part of it, was one of the things. It wasn’t the major thing. It was one document cited in a large thing, and the FBI, in there, the Justice Department, whoever did the application, in their applications specifically said, to the court, this is raw intelligence. They described how they obtained it. We cannot verify its accuracy. That’s what you tell the court. The court chose given that and given all the other information in the application, there’s enough there to grant the FISA application.

Have you seen that application?

Yes. I have.

So you’re saying that the Steele dossier was just a very small thing?

I don’t know about very small, it was a small part, relatively small. But the point is the court was told this is unverified information. This is how it was gotten. You evaluate it. Once you’ve done that, that’s what you’re supposed to do. The court granted the application. A FISA is only good for, I think it’s 90 days. To renew the FISA application, you have to show not only whatever you show it to get in the first place, but you have to show that it’s productive. That, in fact, your warrant – granted pursuant to the FISA application – has gotten information of value to counterintelligence. They were working with the Russians, or somebody who’s talking about something, and therefore renew it. It was renewed three times. That means it was productive. That means somebody was dealing with Russians, or with somebody. And the third time it was renewed, by the way, the guy who signed the application was Rod Rosenstein, who had been appointed at that point. So there’s nothing wrong with that application, and anybody who says there was something wrong with it though – it’s spying, etc. – is trafficking in total bullshit.

You impeach people for high crimes and misdemeanors. What does high crimes and misdemeanors mean?

The best summary, when the impeachment, the whole thing came up 20 years ago, my first thing was to read everything I could starting with the English and the 1600s of what’s impeachable. The best summary, by the way, I still think, is the majority staff report at the Judiciary Committee written in February of ’74 by Hillary Rodham, of all people. I still think that’s the best summary of the law. Impeachment is a defense of the Constitution, the defense of liberty and defense against the president who would arrogate power to himself, who would do things to destroy the separation of powers, who would do things to destroy liberty. It’s a political defense against the political crime. So, when it was proven that Richard Nixon cheated and lied about his income taxes, that was voted down as an article of impeachment because you don’t have to be president to lie and cheat on your income taxes. And that’s not, that’s a crime, you should be prosecuted for it, and had it not been for the pardon, he probably would have been prosecuted for it, but it has nothing to do with threatening the structure of government. By the same token, Bill Clinton committed perjury about a sexual affair with Monica Lewinsky. That was not impeachable because it’s perjury about a private sexual affair. It had nothing to do with arrogating powers, threatening liberty or affecting the structure of functioning government.

He was impeached for obstructing justice.

He was impeached for various things but his impeachment was wrong. I would say what he was impeached for, which is basically perjury about a private sexual affair, is not an impeachable offense. Now, say if Donald Trump committed perjury, for example, let’s assume that he was subpoenaed by the attorney general of New York and looking into a misuse of his charitable foundation and maybe stealing money through his charitable foundation, and he committed perjury in that investigation, that would not be impeachable because it’s not relevant to misuse of his presidency. To be impeachable, it has to be what I just said. Or there’s one other thing, it’s got to be while you’re president. The only thing it can be if you’re not president would be if you’re trying to rig the election to start with. And we know that because there’s a specific reference to that in the Federalist Papers.

But related to this lengthy investigation into the Russians and Trump –

That’s very fast and very cheap for this kind of investigation. Take a look at how much Ken Starr spent, and how long that took. It was like seven years and I don’t know how much money.

Where is the sign that even whatever Trump and Putin talked about – let’s say they had a secret meeting and they talked about blowing up the world together.

Well, all that does is raise questions. Why is Jared Kushner trying to set up a secret back channel from the White House to the Kremlin on Russian equipment so no one else knows? No American knows what’s going on, before the inauguration. Michael Flynn was doing this same thing, (and it) raises a lot of questions. Unprecedented, it raises a lot of questions in the same context of the guy who’s publicly giving every excuse to Russia. I remember, he was the guy who, when you’re talking about lethal military weapons to Ukraine, changed the Republican platform. Was there a counter pressure a year or two later? Sure. Has he done everything Putin wanted? No, but he’s done a lot. It’s hard to imagine someone serving Russian interests better, in terms of sabotaging NATO (and) sabotaging our relations with all our European allies through the entire campaign. So through the entire campaign, he’s lying to the public by saying, I have no deals with Russia, no dealings with Russia when he’s negotiating Trump Tower (Moscow). And by the way, that means two things. It means No. 1, he’s got a real, personal interest that he’s not revealing to the public, which the public should have know in an election. And No. 2, it means Putin has a hold over him because Putin knows something, which if he revealed it would be highly embarrassing to Trump. It might cost him the election. What does he know? That he’s negotiating with the Russians to build the Trump Tower (Moscow) when he’s saying he’s not? That’s compromising information that Putin has (that) nobody else had.

Do you think pursuing this Russia collusion angle is a good strategy going into 2020 for the Democrats?

No. No, I don’t. But I think it’s a duty. Let me put it this way, the election is one thing, and it’s supremely important, and for the election we have to be talking about health care and all the other issues, but we also have to vindicate the rule of law.