Mueller talks Election Meddling. TRANSCRIPT: 5/29/19, The Beat w/ Ari Melber.

Guests: John Flannery, Seth Waxman, Glenn Kirschner

CHUCK TODD, MSNBC HOST:  Download it now wherever you get your podcast.  That`s all we have for tonight.  We`ll be back tomorrow with more MEET THE PRESS DAILY.

"THE BEAT WITH ARI MELBER" starts right now.  Good evening, Ari.

ARI MELBER, MSNBC HOST:  Good evening, Chuck.  Thank you very much.  I am Ari Melber reporting on a historic night.

May 29, 2019.  This is the day that Bob Mueller broke his silence and resigned his office as the most consequential special counsel in a generation.  Mueller speaking publicly for the first time today in more than two years after 37 indictments, guilty pleas from five Trump aides, a 448-page report all against the backdrop of intense obstruction of his probe and wider attacks on the Justice Department.

Now, some of that obstruction was charged by Mueller himself.  Some was referred out to other prosecutors in cases that we know are still open.

And tonight, I can tell you, some of the potential obstruction was not charged at all because as Bob Mueller underscored in breaking his silence today, the Justice Department rules prevented him from ever indicting a sitting president.

Mueller delivering that pivotal point that the legal wall barricading Mueller from ever doing anything with his evidence on President Trump, other than writing it down for Congress, he delivered that today in his signature understated manner.  Noting in his first remarks to the country here that he would basically not be able to give Donald Trump the good news that there was no crime.

In fact, that if he wanted to, he would have given that good news if the evidence supported it.  But -- and this is important, some of this may get lost, we`re going to break it down for you right now.

Bob Mueller in his first ever remarks as special counsel made it clear the evidence he gathered in that exhaustive probe did not provide the confidence that President Trump clearly did not "commit a crime."

(BEGIN VIDEO CLIP)

ROBERT MUELLER:  As set forth in the report after that investigation, if we had had confidence that the president clearly did not commit a crime, we would have said so.

(END VIDEO CLIP)

MELBER:  If you remember, nothing else from this historic day and it is a historic day in American history no matter what else happens, remember this, Bob Mueller breaks his silence today and uses this singular appearance facing the country as the saying may go to stay the Mueller probe`s lack of an indictment of President Trump is not a finding about Donald Trump`s guilt or innocence.

Now, he is trusting you, he`s trusting the American public to actually slow down and think and hear this out because it`s not altogether obvious.  Mueller is explaining in his first-ever remarks that no evidence would ever have allowed the DOJ, not Mueller, not Barr, no one at DOJ to indict a sitting president.

And that`s obviously a rebuttal to team Trump and to the impression left by Attorney General Barr.  Now, Mueller didn`t present this to be clear and fair as any kind of disagreement in public with Barr today.

Mueller was careful and he was courteous throughout.  But we can also state the fact that the Mueller report which Mueller urges everyone to read today, it does disagree with Barr`s famous depiction in fundamental ways.  It notes that neither Mueller nor Barr could ever charge the president while he is in office.

(BEGIN VIDEO CLIP)

MUELLER:  We did not, however, make a determination as to whether the president did commit a crime.  The introduction to the Volume II of our report explains that decision.  It explains that under long-standing department policy, a president cannot be charged with a federal crime while he is in office.

That is unconstitutional.  Charging the president with a crime was, therefore, not an option we could consider.  But that is the office`s final position and we will not comment on any other conclusions or hypotheticals about the president.

(END VIDEO CLIP)

MELBER:  And if you remember nothing else, remember this.  What I`m about to tell you is a direct consequence of the first thing I mentioned.  If the DOJ cannot indict the president, what happens with the evidence of any potential presidential crime?

It`s not a trick question.  Presidents Johnson and Nixon and Clinton, they all know and anyone who has studied those eras or lived through them.  They all faced Congress` which considered impeachment.

Now, Mueller did not say the I word.  I don`t think anyone was bracing for that today.  That`s not how Bob Mueller rolls.

But remember the other thing he did today.  Reiterating this key passage from the Mueller report which states only Congress accuses a sitting president of criminal conduct.

(BEGIN VIDEO CLIP)

MUELLER:  The opinion says that the Constitution requires a process, other than the criminal justice system, to formally accuse a sitting president of wrongdoing.

(END VIDEO CLIP)

MELBER:  Mueller`s entire address today was positioned within the rules he had to follow.  I can tell you I`m thrilled that in a few moments, we`ll be joined by the man who wrote those very rules, former Obama DOJ Official Neal Katyal.

But I want to begin with this panel.  Maya Wiley, former counsel to the mayor of New York City and a former prosecutor in the Southern District of New York, John Flannery, a former counsel to three congressional investigations, and Eugene Robinson, Pulitzer Prize-winning columnist for "The Washington Post."

It is a historic night.  I really appreciate each of you starting off our special coverage.

MAYA WILEY, FORMER CIVIL PROSECUTOR, SOUTHERN DISTRICT OF NEW YORK:  Thank you.

JOHN FLANNERY, FORMER FEDERAL PROSECUTOR:  Thank you.

EUGENE ROBINSON, PULITZER PRIZE-WINNING COLUMNIST, THE WASHINGTON POST:  Good to be here.

MELBER:  John, as a prosecutor versed in the interplay between the DOJ and the Congress, what was Mueller saying in your view about what should be done with his reported evidence?

FLANNERY:  I think he said you should treat my report as my testimony and go forward.  Seneca said that the fates lead you to your destiny or drag you to it.  I think when he wasn`t answering Barr`s misstatement of his investigation, he was saying to Congress, I refer this to you.

And think about it.  I mean, is the House Judiciary Committee going to interview 500 witnesses, issue all those subpoenas?

And they know the clock is running.  And one of the most obvious articles of impeachment is the refusal by the president to comply with request for discovery for documents and witnesses.  So they already have one point of 5to 10.

And this is without considering other misconduct by the White House.  So I think what he`s saying is it`s time to do something.  It`s time to go to work.  It`s time to have, if you will, a probable cause hearing and decide what the articles of impeachment are and then try it with the 5 to 12 witnesses in the Senate with Roberts as the chief judge.

MELBER:  Maya, he also spoke about the grave threat posed, in his view, by obstruction of justice.  Take a look.

(BEGIN VIDEO CLIP)

MUELLER:  It was critical for us to obtain full and accurate information from every person we questioned.  When a subject of an investigation obstructs that investigation or lies to investigators, it strikes at the core of the government`s effort to find the truth and hold wrongdoers accountable.

(END VIDEO CLIP)

MELBER:  What was he doing there in your view and having covered so much of this story with us?  What did you think watching Bob Mueller step out there today?

WILEY:  I thought Bob Mueller was doing exactly what Bob Mueller does best.  He is a subtle communicator around the fact that there is no exoneration on obstruction of justice in this context with Volume II of the report.

You know, even in terms of Volume I when it comes to that Trump Tower meeting on June 9th, he says in his report that one of the reasons they can`t charge a campaign finance conspiracy is because of obstruction.  So you also have to read the two volumes together.

And I think what he`s saying is exactly as John said, it`s like the evidence is there.  I gave it to you.  Do something with it.

MELBER:  Do something and read it.

WILEY:  And read it.

MELBER:  Eugene Robinson, listen to Bob Mueller today imploring the public.  And again, this was really something.  Imploring the public to perhaps do more than many of our leaders ask, than certainly people often feel like the level of discourse.

And here was a man who obviously feels that he`s worked hard.  He served his country.

He does he not want to be drawn into political sniping.  He doesn`t see his role as political.

But he is asking us to do something.  Take a look at his request.

(BEGIN VIDEO CLIP)

MUELLER:  Beyond these few remarks, it is important that the office`s written work speaks for itself.  Any testimony from this office would not go beyond our report.  We chose those words carefully and the work speaks for itself.

And the report is my testimony.  I would not provide information beyond that which is already public in any appearance before Congress.

(END VIDEO CLIP)

MELBER:  Eugene?

ROBINSON:  Well, a couple of things.  First, you know, let me start with the -- where he started basically which was with the Russian interference.

It was clear from the entire performance by Mueller today that he considers this an emergency.  He considers this a very serious effort by Russia to interfere with our election.

It happened.  It`s going to happen again.  He wants people to pay attention to that.

Second, the message to Congress was clear.  Now, I wish he were a bit less subtle communicator.  There`s that famous double negative, right.  The evidence did not show that the president did not commit a crime.  Any editor confronted with that sentence --

MELBER:  Eugene, I`m not -- I know you have a Pulitzer but Eugene, I`m not sure I don`t know what you mean.

ROBINSON:  Exactly.  Exactly.  I`m not sure you don`t know either.  And any editor would slash out those two negatives and say the evidence shows the president committed a crime because that`s what it shows, the crime of the obstruction of justice.

He lists all that evidence, much, much evidence, in the report.  And he put -- and he basically tells Congress, it`s up to you to act.  You can either act or you can say never mind.

Whatever do you though, pay attention to the fact that our election was interfered with and it`s going to happen again.

MELBER:  I want the whole panel to hang with me as I bring on, as promised, Neal Katyal.  Because when we talk about Congress, you have at least 40 members of the House Democratic Caucus and now one Republican who are on the record for at least impeachment proceedings.

Then you have Democratic leadership, Pelosi, Nadler, not on the record for it, even after today.  Instead, they`re saying well, what they really need next is Mueller to testify.  And he made it clear that is not where he is headed.

(BEGIN VIDEO CLIP)

MUELLER:  Now, I hope and expect this to be the only time that I will speak to you in this manner.  I`m making that decision myself.  No one has told me whether I can or should testify or speak further about this matter.

There has been discussion about an appearance before Congress.  Any testimony from this office would not go beyond our report.

(END VIDEO CLIP)

MELBER:  That`s Mueller`s warning shot.  You are not going to get a lot more out of me if you make me testify in public.  But in saying that no one is holding him back, he obviously is defending in effect his boss, Mr. Barr and the Trump administration that has been accused and many people feel credibly accused of interfering with aspects of this probe and thus perhaps there was concern they would interfere with Mueller.

That`s not all.  On a narrow point but an important one, Mueller goes out of his way to thank Barr for his handling of all this.

(BEGIN VIDEO CLIP)

MUELLER:  The attorney general then concluded that it was appropriate to provide our report to Congress and to the American people.  At one point in time, I requested that certain portions of the reports be released.

The attorney general preferred to make the entire report public all at once and we appreciate that the attorney general made the report largely public.  And I certainly don`t question the attorney general`s good faith in that decision.

(END VIDEO CLIP)

MELBER:  Good faith on the release of the report.  As promised, Neal Katyal, former acting solicitor general of the United States who wrote those very rules that the special counsel continually cited and invoked as part of the restrictions and the authority that he exercised today.

Neal, as always, great to see you.  Thank you for being with us on this night.

NEAL KATYAL, FORMER ACTING SOLICITOR GENERAL:  Thank you.

MELBER:  Big picture.  What do you think was important about what Mueller said to the public today given that large parts of it are familiar to you and those who had read the report?

KATYAL:  I think it`s a pretty devastating day for President Trump.  I think President Trump had hoped that Attorney General Barr`s obfuscation of what Mueller actually concluded would carry the day and people would kind of go home and forget.

But there`s been a drumbeat over the last weeks and leading up to Justin Amash, the Republican member of Congress saying, hey, these are crimes and they`re impeachable offenses.  And so all of that together I think has led Mueller to come out today and say, you know, people are spinning this in all sorts of ways and this is not what I said.

And so I disagree a little bit, Ari, with what you just said before about how Mueller gave Barr a kind of clean bill of health and said it was OK, his conduct in general.  Mueller used very specific words.  He didn`t mind --

MELBER:  No, just on the report -- just on the report`s release.

KATYAL:  Just on the report.

MELBER:  Yes.

KATYAL:  Just on the report`s release.  And, you know, he didn`t say anything about how Barr got the obstruction of justice stuff right or anything else.  What Mueller did today --

MELBER:  But he did not -- let me press you on that, Neal.  Let me press you on that because this is something people at home and I think around the country are wondering.  I was talking to various sources, people close to this today about it.

There is a view that in the way Mr. Barr released the information about the report and purported to issue a ruling, a judgment on whether or not to charge the president that that is in direct contradiction with what Mueller just said today, that the DOJ can`t indict the president.

And yet Mueller also, I think, went way out of his way.  I`m curious of your view.  Went way out of his way to present some sort of comities, united front with Barr.  He never said, well, I respect him but we disagree about some of this.

KATYAL:  No.  It`s like a thin ground of comedy only on one issue which is the public released the document.  And after all, remember, Mueller is the subordinate to Attorney General Barr.

The very fact that he is even having a press conference and talking about this suggests to me something pretty serious is afoot.  And I mean we really know this because Mueller did two things today.

He plucked out two parts of his report.  And sure they were there before but this is what he chose to emphasize.  Number one, he said I can`t indict a sitting president even if I wanted to.  Even if the president was guilty of sin, I couldn`t do it.

And number two, I can clear him.  I could have if the evidence was there.  And by the way, the evidence was not there.

So those two things together to me suggest really a kind of repudiation of what Barr is doing.  Certainly, Mueller is saying look, I can`t indict the president but I can, you know, you can write a report and you all can read it for yourselves and see what it says.  I also can`t indict Barr, he`s my boss but you can read my report and then compare it to what Barr said and draw your own conclusions.

And all of this is a setup to Congress because Mueller is writing this report against the backdrop of the Watergate and White Water investigations which were, after all, turned over to Congress for their investigation.  And that is what I think Mueller is saying between the lines today.

MELBER:  Neal, as always, lays it out quite clearly, Eugene.  As to the point about Congress, let me play a sitting member of Congress who when pressed on this program says most of his colleagues haven`t read the report.  Take a look.

(BEGIN VIDEO CLIP)

MELBER:  If I ask you a question about that, would you try to answer me honestly?

REP. STEVE COHEN (D-TN), JUDICIARY COMMITTEE:  Always.  Always.  I swear to God.

MELBER:  Well, sir, do you think the majority of members of Congress have read the Mueller report?

COHEN:  No, I don`t.

(END VIDEO CLIP)

MELBER:  Eugene, you take Mueller`s aspirations or hopes, you take Neal`s breakdown of the purpose of all this, and then you take a Congress that allegedly, according to some, has not widely read the report, and can it handle the nuance that Mueller is resting his argument on today?

ROBINSON:  Well, we`ll see if they can handle the nuance if they would read the report.  I mean what do we pay them for, right?  We do pay them to do their job and it`s their job to read this report and they should read it.

And then I think members of Congress should ask themselves a question.  And this isn`t necessarily a legalistic question but if you`re not going to indict -- excuse me.  If you`re not going to start an impeachment inquiry - -

MELBER:  Accuse, yes.

ROBINSON:  -- into Donald Trump, imagine -- tell me -- describe the president for whom you would start an impeachment inquiry, right.  I mean a president who abuse power, a president who use the instruments of state to go After his political enemies, a president who lied to the American people all the time.  I mean describe this hypothetical president who does something that Donald Trump doesn`t do all the time.

MELBER:  I`ll let that breathe for a second on a big night, a moment of reflection because you put it down, Eugene.  You say this report which Mueller was really just going through the biggest takeaways from this in about nine minutes.

Neal, a more dramatic person.  And we`ve seen some more talkative elocution types in law enforcement before, could have done a lot more with it.  He erred completely on the side of care and reticence.  But he is saying what more do you want me to do?

And what greater conduct of abuse of power in the laws that be faithfully execute would you want?  If you ever are going to get to this point against a sitting president?

KATYAL:  Exactly, Ari.  And I think there is one key tell which is Mueller`s emphasis on I can`t indict a sitting president because it would be unconstitutional.  Every scholar who has taken that view in the Justice Department, when they did, and those two opinions said the remedy to make sure that a president is above the law is one thing, impeachment.

And so when you invoke the I can`t indict a sitting president, you are invoking a sweet of authorities that says the remedy is a simple one, it is impeachment.  I don`t mean to say it`s a simple process.

MELBER:  Sure.

KATYAL:  But that`s the remedy that our founders had in mind.  And I take Eugene`s point exactly.  I mean, you know, what are you there for?

If not to stand up for the rule of law, for a president who doesn`t, you know, break the law and, you know, intimidate witnesses, offer pardons and all the other stuff that`s outlined in the Mueller report, there are now a thousand federal prosecutors, former prosecutors, who have said if I -- I`ve read the report and I would indict all of these things.

WILEY:  I agree with all that was said.  I just think we have to add one more point here which is for Robert Mueller after writing this report, after doing the two years of investigation, after bringing all these indictments, after writing a report in which he explicitly says that there is this other path that -- and now today makes very clear we were never going to consider this from a prosecutorial lens.  We were only going to look at this as preservation of evidence and essentially giving Congress, allowing the other process to go forward as it relates to Trump.

In a footnote, he explicitly says, "By the way, Congress also has, in addition to impeachment, the question of whether it wants to tighten up these laws."

So for Bob Mueller to actually say I`m done here, I don`t want to testify, the book by Mueller is the only testimony you get is actually to ignore the very thing he lays out in footnote 1091, which is Congress actually has two jobs to do here, consider impeachment and also consider whether or not it has to consider legislation to make clearer how we have appropriate oversight if a president possibly committed crimes.

MELBER:  You heard it, digging in the crates.  You have ever heard of that?

WILEY:  I don`t think.

MELBER:  No, it means to look up for old records, Flannery.  And 1091 -- thank you, Maya, 1091 says a possible remedy through impeachment for abuses of power would not substitute for criminal liability after a president leaves office.

Maya Wiley digging into the footnotes to remind us that Bob Mueller, if you read the report, which he asked you to do today, he uses the I word and a post-presidential criminal indictment as both things that need to be considered.

But as you say, Maya, the question is whether Congress will make him have more of this conversation in public than he wants.  They`re a co-equal branch.  They can make calls that he might disagree with.

I`ve got to fit in a break.  Neal Katyal and Maya Wiley, thank you both so much.  John, Eugene will be back later in the hour.

Coming up, I`m going to do a special breakdown on what this means for Congress`s approach to potential impeachment after Mueller`s message today.  And new questions tonight about Mueller and Barr and the apparent daylight between them even as we point out Mueller was very careful not to make that a focus of his remarks.

Later in the hour, and this is important when you look at a day like today, what Mueller didn`t say.  Legal experts are going to break down why that`s so important.  And a key warning about the ongoing threat from Vladimir Putin.

I`m Ari Melber.  You`re watching the special edition of THE BEAT on MSNBC.

(COMMERCIAL BREAK)

MELBER:  Bob Mueller breaking his silence today to resign and hand off any further work to Congress.

(BEGIN VIDEO CLIP)

MUELLER:  The opinion says that the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.

(END VIDEO CLIP)

MELBER:  Mueller flatly suggesting this is now only Congress` job, not the prosecutors or press or the voters.  But Congress to decide if and whether high crimes were committed by Donald Trump.  Speaker Pelosi not breaking any new ground today in response.  While the chairman who oversee any impeachment probe, Jerry Nadler, stepped out here to respond.

(BEGIN VIDEO CLIP)

REP. JERROLD NADLER (D-NY), CHAIRMAN, JUDICIARY COMMITTEE:  With respect to impeachment question at this point, all options are on the table and nothing should be ruled out.  What Special Counsel Mueller said loud and clear today for the American people is that President Trump is lying when he says no collusion, no obstruction and that he was exonerated.

And that the Constitution points to Congress to take action to hold the president accountable.  That`s exactly what we`ll do.

(END VIDEO CLIP)

MELBER:  What is accountability?  Mueller says that`s for Congress to decide and not to outsource those judgments back to him or ask him to go any further than he did in his written report.  And Mueller used this new rare speech today to basically warn the House Democrats, they won`t get an ounce more from him if they subpoena testimony.

(BEGIN VIDEO CLIP)

MUELLER:  And I hope and expect this to be the only time that I will speak to you in this manner.  There has been discussion about an appearance before Congress, any testimony from this office would not go beyond our report.  The work speaks for itself and the report is my testimony.

(END VIDEO CLIP)

MELBER:  The work speaks for itself.  That`s vintage Mueller right there and he`s echoing a classic legal concept that some things speak for themselves.  Lawyers often quote this point in Latin, res ipsa loquitur, to stress how some evidence is so clear you don`t need to talk over it.

Shakespeare even famously invoked the same idea, to stress the limits of rhetoric, one character proclaiming, what shall I say more than I have inferred.  Now, this idea may be a rarity in our politics and society.

Mueller arguing today this does not require more words or inferences.  The work exists.  It speaks.  And Mueller saying the only question left is what to do about it.

(BEGIN VIDEO CLIP)

MUELLER:  Any testimony from this office would not go beyond our report.  The work speaks for itself and the report is my testimony.

(END VIDEO CLIP)

MELBER:  Former Federal Prosecutor Seth Waxman is here along with Eugene Robinson.  Seth, what does that mean to you?

SETH WAXMAN, FORMER FEDERAL PROSECUTOR:  Well, I think Mr. Mueller has said it, he`s made his findings, he`s laid down the gauntlet essentially in front of Congress and it`s looking the Congress to do its thing.

Now, Congress will bring in witnesses and hopefully look at these documents.  But this isn`t being done in a vacuum right now.  We have Mr. Trump thumbing his nose at Congress saying "You`re not going to get these documents.  You`re not going to get these witnesses."

So what is Congress to do?  Are they going to abdicate their responsibility and essentially confirm what Trump`s always believed, that he could walk out on to Fifth Avenue and shoot someone, and there`d be no consequence?

If this impeachment were to take place and he were to be charged, because at the end of the day, that`s what impeachment is, it`s a charging document.  Then you`d look to the Senate as to whether there`s a possibility of him getting removed.

MELBER:  But let me focus you on the core Mueller claim which is as you know is legal.  I`m sure you`ve heard that expression before, right?

WAXMAN:  I have.

MELBER:  And there is a rebuttal to that.  Here I`m going to not present, you know, just Trump folks who attack Mueller either which way but a credible rebuttal by Michael Tomasky, a very talented writer who`s on the left.

And he says, "Mueller wants the evidence to speak for itself.  The evidence, however, was not allowed to speak for itself as he knows.  The attorney general spoke for it."

Is Bob Mueller still playing by old rules on an imaginary neutral playing field when it`s actually distorted and uphill from Bill Barr and left to their own devices, that leaves him sliding underground.

WAXMAN:  Well, I think Mr. Mueller thought today was evening not playing field where he came out and made some very specific, directed, targeted comments to essentially say, "Look, the evidence is there.  Just read it and do your job."

So I think he may have leveled that playing field.  I would frankly like to see Mr. Mueller testify.

MELBER:  Do you think he leveled it?

WAXMAN:  To a degree.  I mean --

MELBER: Let me bring in Gene because you`re the careful prosecutor.  Gene is the careful chronicler of Washington.  Gene, there are other prosecutors who also operate under these rules, similar rules who`ve come out and spoken more directly or listed off.  You know, he didn`t even mention today and again it`s his call.

I`m not second-guessing but I`m asking you if what were to believe is that this is the last time he ever wants to speak, then Gene, why didn`t he say by the way, we busted up a crime spree by Trump aids, the President`s campaign chair and lawyer and national security adviser are all convicted felons now.  Roger Stone was hiding allegedly contacts related to stolen e- mails that were involved in in tipping the election and that`s the obstruction.  We don`t know what else we didn`t get.  He didn`t do any of that.  Why, Gene?

EUGENE ROBINSON, COLUMNIST, THE WASHINGTON POST:  Well, again, I would love to have been Robert Mueller`s editor.  I would have had plenty of suggestions for how he might have done this.  Nonetheless, I do agree that this was his way I believe of leveling the playing field.

He realized that his work had been distorted, had been misrepresented, and that people hadn`t read the report.  And by selecting the points to highlight that he highlighted, I think he did go considerable way toward sort of getting the discussion back where he wanted it and where he thinks it should be.

You know, that said, could he have done it in a punchier way?  Absolutely, there`s no question about that.

MELBER:  Well, and substantively, there were things he just didn`t get into.  Now, Seth, Mark Warner, the Senator is pushing past what Mueller said in saying look, it`s not his call.  He may have to testify.  Take a look.

(BEGIN VIDEO CLIP)

SEN. MARK WARNER (D-VA):  When he becomes a private citizen, there will be those in Congress probably led by the House that will urge him to testify and I think responsibly to do so.

(END VIDEO CLIP)

MELBER:  Your view, Seth.

WAXMAN:  I entirely agree with that.  You know, Bob Mueller, by reputation, by experience is a -- is a renowned and well-respected individual, but no one`s above responding to a subpoena.  And there are countless questions that are left unanswered.  You know, why didn`t Don Jr. testify?  Why didn`t the President testify?  Those parts of the report are redacted.  Was it because they pled the Fifth or were told they were going to be pled to plead the Fifth?

I mean, impeachment is a political process.  It does not have to arise to criminal conduct to constitute impeachment grounds.  So if the American people and Congress were to here for example that the President of the United States who was invoking the Fifth, that could be something that could be considered, many other questions.

So you know, having Mr. Mueller speak today was obviously very telling and it raises a lot of questions and gives the American people a feel for what happened.  But to testify under oath in front of Congress would be that much more illuminating and I think it`s owed to the American people and to Congress.

MELBER:  Gene Robinson, Seth Waxman, thank you both.  Up ahead, Democrats calling for this testimony, went a look at what Mueller didn`t say and why that could matter so much.  Also our definitive breakdown of despite Mueller`s careful and polite presentation, we have the receipts and the facts of the way he rebutted Mr. Barr and the Trump DOJ when we`re back in 30 seconds.

(COMMERCIAL BREAK)

MELBER:  In his first-ever public remark as special counsel, today Bob Mueller addressed why there was no conclusion about whether Donald Trump actually committed the crime of obstruction.  And in the process, he went forward in ways that would suggest contradictions of his boss which is someone he`s worked with for decades of course, now Attorney General Bill Barr.

Mueller is saying the Justice Department has rules that prevent the charging of a sitting president with a crime no matter what evidence they find.  That mirrors what Mueller, of course, wrote in the report.  But it also differs in the take away if not in the careful lawyer ease of what Barr told everyone in April emphasizing that Mueller, Barr said, didn`t find a crime at all.  And that was therefore up to Barr and Barr alone to then make some sort of charging decision.  And then of course, as you know, he concluded that he says there was no reason to charge Donald Trump.

Now, Mueller, today makes it clear he decided early on he wouldn`t even go down the road of that type of question.

(BEGIN VIDEO CLIP)

WILLIAM BARR, ATTORNEY GENERAL, UNITED STATES:  We specifically asked him about the OLC opinion and whether or not he was taking the position that he would have found a crime but for the existence of the OLC opinion, and he made it very clear several times that that was not his position.

ROBERT MUELLER, SPECIAL COUNSEL, RUSSIA PROBE:  So that was Justice Department policy.  Those were the principles under which we operated.  And from them, we concluded that we would not reach a determination one way or the other about whether the President committed a crime.

(END VIDEO CLIP)

MELBER:  In the Mueller`s report, he also suggested this is all up to Congress.  We concluded he writes that Congress has the authority to prohibit a president`s corrupt use of authority.  Mueller is striking a similar note today in comments that appear to break with Barr.

(BEGIN VIDEO CLIP)

BARR:  Special Counsel Mueller did not indicate that his purpose was to leave the decision to Congress.  I am told that his reaction to that was that it was my prerogative is attorney general to make that decision.

MUELLER:  The opinion says that the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.

(END VIDEO CLIP)

MELBER:  I am joined now by Matt Miller who has set up exactly the kind of press conference as you just saw there the Justice Department, and former Prosecutor John Flannery.  Matt, what was Mueller getting at in the careful way that he laid out his arguments while stressing to the extent that it came up that he was not he says questioning Mr. Barr?

MATT MILLER, MSNBC JUSTICE AND SECURITY ANALYST:  Well, you know, I think he was making clear when he said that about he didn`t -- wasn`t questioning Bill Barr`s good faith.  He was really confining that -- those remarks to a very specific thing to Bill Barr`s good you know not exercising good faith and in the way he released the report.

But I do think his -- by choosing to use the words he did, look, he could have said a lot of things about his report today.  He chose to make these very specific remarks about why he didn`t make a determination.  I think that was pretty clearly to correct the public record in the same way that he thought the initial letter that bill Barr sent to Congress had left a misimpression with the American public.  We know that because he wrote a letter complaining.

I think he today wanted to set the record straight because Bill Barr`s press conference and subsequent testimony to Congress and his interviews with Fox News had left the misimpression with the American public.

Now anyone that has read the Mueller report would have known that what Bill Barr said in those clips you just showed was misleading, but a lot of people haven`t read the report.

MELBER:  And very misleading and that`s what I am -- this is not that thing when I`m just asking questions.  I`m really genuinely trying to understand this, Matt, because I`m going to play for you some of the things Mr. Barr said that even if technically arguably defensible, they left people and the public and plenty of experts with the impression that Barr was saying Mueller didn`t find enough criminal evidence and that`s not what Mueller said.  Take a look.

(BEGIN VIDEO CLIP)

BARR:  He reiterated several times and in a group meeting that he was not saying that but for the OLC opinion, he would found obstruction.

SEN. CHUCK GRASSLEY (R-IA):  If the Special Counsel found facts sufficient to constitute obstruction of justice, would he have stated that finding?

BARR:  If he had found that then I think he would state it, yes.

(END VIDEO CLIP)

MELBER:  Matt, yes or no, on May 1st, did Barr have reason to know that that statement was not accurate?

MILLER:  Yes, of course, he did.  Look, Barr -- Mueller had said in the report that it would be unfair for me to accuse the president of a crime even -- you know -- and that`s what you know, what Barr is saying there that you know, he doesn`t think Mueller would have -- would have said that.

Well, he specifically said, not only can I not charge a president, but because I can`t charge a president, you know, it`s unfair for me to accuse him because there`s no way for him to clear his name in court.

MELBER:  So I hate to draw you out -- I hate to draw you out, Matt, on potentially breaking with you know, the -- your esteemed colleagues at the Justice Department, but several outlets including MSNBC has reported today that the Mueller Justice Department officials have said no, they were releasing material to show there was no conflict on that very point between Barr and Mueller.  What do you say to that?

MILLER:  You know, there`s a lot of internal politics that goes on inside the Justice Department.  I don`t know how that statement came to be.  I don`t know who asked to put it out.  I wouldn`t want to speculate.  But if you just look at the facts --

MELBER:  But you don`t think -- you don`t think it flies?

MILLER:  I don`t think it flies.

MELBER:  Let me get Flannery in.

MILLER:  Yes, there`s no way you can look at what he said and come to that --

MELBER:  Miller says it doesn`t fly, it`s my job to report out what we`re hearing.  So when we hear from someone from the Mueller side that they were trying to demonstrate unity, I`m going to report that we`re hearing that.

I`m also going to report the receipts, Flannery, which look like that`s really hard to square because I just showed you the Attorney General of the United States under oath to the Congress acting like had there been more evidence, Mueller could have and would have said oh, the president committed a crime which is the opposite of the report.

JOHN FLANNERY, FORMER FEDERAL PROSECUTOR:  It is the opposite of the report.  And like you said, there`s only witches that fly, I suppose.  I mean, you have to deny what your eyes see and what your ears hear from Barr and contradiction to Mueller.  Mueller may be a half`s be too elegant in his argument in the sense that he contradicted the four-page misleading letter that in his March 27th letter, he said you`ve misrepresented my investigation, and today he set the record straight.

And on the one hand, we had barred trying to delay the world knowing what the report was really about, both by that four-page letter and by the slow release of the report that does not find objection in Mueller.  And then you have ironically enough, you have the Congress leadership sort of assuming the mantra if you will, of carpe manana.

And if anything is true about today`s pronouncement by Mueller it is get moving.  Here it is.  You have it before you, act upon it.

MELBER:  Is that Latin and Spanish carpe manana.

FLANNERY:  Carpe manana, yes.

MELBER:  Impressive.

FLANNERY:  Instead of carpe diem.

MELBER:  No, I got it.  Matt?

FLANNERY:  I figured you got it, but you know, some people in the Justice Department don`t understand what Mueller said so maybe sometimes we have to explain these things.

MELBER:  I work one piece at a time.  I go slowly, but Matt, I mean, this really gets to the heart of it right, because at the end of the day, Bob Mueller was authorized to look at a lot of stuff, but the highest-profile, most pivotal call related to the potential criminal evidence against the president.  Matt?

MILLER:  Yes, that`s right.  And it also -- the also important thing is what ought to be done about that.  And that`s why what bill Barr said was so important.  Look, Bill Barr basically said the case was closed.  And when he was asked at that press conference if Mueller didn`t make this determination because he thought it ought to be left to Congress, he said well, I would hope that would not be his opinion because that`s not our job as prosecutors, our job is to make determinations.

And Mueller was saying in his report and saying very clear today in this one special instance when it involved the president, not anyone else, the one person who can`t be indicted, it is our job the Constitution says and the OLC opinion says that we are supposed to leave that to Congress.  And that is so important because it means the case is not closed.  The case is open for Congress to pick up and run with if they want to.

MELBER:  And so Matt, given the nuances of this kind of communication -- because the job you held is different from most other agencies.  There are secrecy rules.  Mueller operated with tremendous secrecy.  He worked off- site from the DOJ and all the rest.

In the end, is your view that Bob Mueller could not necessarily match the communication skills and challenges of this particular environment with all of the tremendous legal skills and unquestioned integrity he had during the investigation because some result of what you`re saying is that Barr at a practical level was effective and part of what you described as duplicity.

MILLER:  Look, I think Mueller and his team were -- acted appropriately but may be you know, eventually a little bit naive.  You know, I wish that they would have come out and the Special Counsel would have made the statement he made today on the day that he you know, transmitted his report to the Attorney General.

Now, in his defense, you shouldn`t expect the Attorney General to act in bad faith in the way that Bill Barr did so I suspect they never expected him to act that way.  So I don`t really blame them for what they did.  But that -- it would have been the better you know, course of action to control this story from the get-go to make sure no one else could take ownership of it.

FLANNERY:  Well, the constraint on Mueller though is he abides by the law and we had an attorney general who is nothing more than a spokesperson for the defendant or subject of the investigation.  And I think that facts are stubborn thing to go back to John Adams and that these facts stubbornly persists.

The question that we have to face is we don`t need a -- we need a triage.  That is we shouldn`t be chasing Mueller to have him testifying when he`s told us what he`s going to do.

MELBER:  And that`s fair and we covered that on the testimony earlier in the show.  John, before I let you go though, let me press you on that.  You are arguing that Mueller is Batman and Barr is the Joker, and you have a fight between someone who follows rules and someone who does not.

And in your extended analogy, you have the Joker saying well, that`s the rule you`re going to have to break.  But your argument does cut against what Mueller painstakingly did today which was to the extent he addressed it at all, he presented unity with Barr, not a joker like battle.

FLANNERY:  Well, every hero has his faults.  That`s the tragedy.  But this can yet be a classic comedy in the sense that we can overcome the tyrant that sits in the West Wing using the facts that he found elsewhere in his report.

MELBER:  Does every hero live long enough to become a villain?

FLANNERY:  Not all heroes become villains but we all have character flaws.

MILLER:  Ari,  let me just quickly say, I`m not asking -- I wouldn`t ask Bob Mueller to go the full Jim Comey, but you know Batman also knew when to kind of stretch the rules a little bit.

MELBER:  We`ll leave it there.  Matt and John, thank you so much.  I`m going to fit in a quick break.  When we come back, there are some big questions that bottom of the left open.  Why and why is that the key to understanding where we go next?  We have all of that coming up.

(COMMERCIAL BREAK)

MELBER:  Bob Mueller drew a line today saying he doesn`t intend to go beyond his written report in any public testimony.  But some House Democrats say tough and there`s a lot they may want to ask him about.

Consider that Mueller didn`t mention the 30 plus indictments his office issued in today`s remarks.  He didn`t mention the six Trump aids from the campaign chair to Donald Trump`s personal lawyer and Trump Org executive who`s sitting in prison right now.

Mueller also did not address Donald Trump`s attacks on the probe including not only the efforts to remove Mueller which are in the report, but a lot of other public comments and attempts to obstruct.  He also didn`t address Bill Barr`s conclusion that Mueller`s evidence failed to establish Trump had committed obstruction.

Think about what a big deal that is because we`ve been talking and reporting tonight about the space between Barr and Mueller.  Mueller didn`t even comment on the way that Barr did that implying that it was his call to say there was nothing to be charged.  And also, Mueller did not really address most of the elements of the specific acts that he investigated about obstruction.  Mueller also said only Congress can formally accused a sitting president of wrongdoing.

Today, he never used the I-word in his remarks although as eagle-eyed Maya Wiley and others have pointed out even just on this broadcast, it`s something he did discuss at least in the footnotes of his report.

So given all those open questions, we want to dig into what`s left unsaid.  I am joined by NBC`s Julia Ainsley who has decamped from her post at the Justice Department to our Washington Bureau and we`re thankful that you`re a part of our coverage, and former Federal Prosecutor Glenn Kirschner who worked directly for Bob Mueller in the District of Columbia U.S. Attorney`s Office.

Glenn, you obviously have come on here before and praised Bob Mueller and many people understand that.  But even you I think would have to admit there were things that he chose not to address today that could have been useful.

GLENN KIRSCHNER, FORMER FEDERAL PROSECUTOR:  Ari, I`m going to make the case controversial though it may be that Bob Mueller does not need to testify before Congress.  And here`s why.  First of all, prosecutors don`t testify about what witnesses said.  In courtrooms around the country every day, judges instruct juries that the words of a prosecutor and the words of a defense attorney are not evidence.  The evidence are the words that come from the mouths of the witnesses.

That`s point number one.  We don`t need Bob Mueller to say, Don McGahn told us that the President told him to fire special counsel, and when he refused the president told him to lie.  We need don McGahn to say that to the American people and to Congress.

Number two, I suspect that a congressional appearance by Bob Mueller would turn into a circus.  The Democrats would probably want to ask him about oh I don`t know, Hillary Clinton`s e-mails and the Democrats -- and the Democrats --

MELBER:  Point number one is important because as you say, we`re not looking to do a lot of hearsay and redo.  Point number two, I`m going to call you on.  That`s a fine argument against Congressional hearings for now and for a long while the way they go.  Before I turn to Julia, I want you to address the issue in today`s remarks.  He did choose to speak about certain things.  He downplayed any issues with Donald Trump`s hand-picked A.G.  Do you think it would have been more constructive to meet them head- on.

KIRSCHNER:  I mean, I would love to have a beer with Bob Mueller and for 12 hours hear everything that he thinks about the probe, but that that great intro that you did with all of those questions, Ari, they`re all interesting, they`re all things we want to know the answer to, but none of them go to the core of whether this president committed impeachable offenses.  And to get to that and to call away everything else, we need the witnesses.

MELBER:  Julia, you`ve had a front-row seat.  You have been dealing with a lot of the primary folks close to this.  What is your view of those unanswered questions and as we reflect on this day, what`s your view of what we`ve learned?

JULIA AINSLEY, NBC NEWS NATIONAL SECURITY AND JUSTICE REPORTER:  Well, I think we`ve learned that Robert Mueller did leave the door wide open to Congress to come in and answer some of these questions.  Because you`re right, he didn`t get into the I-word, he really hasn`t answered the fundamental question that he was charged with was -- which was did the President commit a crime.

Now, he went back today and said that he was appointed to find out if there was conspiracy between the Russian government and the Trump campaign.  And so it was worthwhile to look at all of these things even if you couldn`t indict a sitting president because there are people around the president who need to be investigated and it`s important to memorialize the evidence as you have it and not wait until this president is out of office.

And of course he wanted to explain why he wanted to look at obstruction because that is at the heart of our justice system, but I think the key quote that we all jotted down in real-time as quickly as we could is that he said the criminal justice system is not the place to --

MELBER:  Right.

AINSLEY:  Right.  You know this part.

MELBER:  Congress.

AINSLEY:  The criminal justice system is not the place where you take the wrongdoings of a president.  So he`s leaving that door wide open for Congress.

MELBER:  Which again, to be clear is not the impression that Barr left when he said oh, it`s a jump ball, I got a deal with it.  And that`s so important.  I want to play one more part of Mueller since it was him speaking out today.  Glenn, do you know the expression word is bond?

KIRSCHNER:  Word is bond, sure.

MELBER:  Bob Mueller gave his version of that here and I think it bears repeating.  We touched on this earlier in our coverage.  But for viewers around the country watching, he is saying very clearly, my word is my bond, my report is my testimony, and as you`ve been arguing, Glenn, it`s now time for Congress to put up or maybe shut up take a look.

(BEGIN VIDEO CLIP)

MUELLER:  Now, I hope and expect this to be the only time that i will speak to you in this manner.  There has been discussion about an appearance before Congress.  Any testimony from this office would not go beyond our report.  The work speaks for itself.  And the report is my testimony.

(END VIDEO CLIP)

MELBER:  Glenn, your bottom line?

KIRSCHNER:  His word is his bond, his report is his testimony, and now we can spend lots of time over the coming weeks debating whether Bob Mueller will or won`t testify.  Will it be public, behind closed doors, or a hybrid, or we can focus on why the White House is trying to prevent people from coming before Congress and testifying when, frankly, they have no right to stomp down on those witnesses.  That, I think, is what people should be focusing on at this point.

MELBER:  And, Julia, I`m over on time, but in a sentence or two, do you think this is the last time we`ll hear from Bob Mueller on this issue?

AINSLEY:  It appeared to be so.  The last thing I would say is to Glenn`s point, when the President says Congress is having a do-over, it`s clear from Robert Mueller that it`s not a do-over, in fact, it might be the necessary course of action.

MELBER:  Glenn and Julia, thank you so much.  And we`ll be right back with one more thing.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

MUELLER:  Russian intelligence officers who were part of the Russian military launched a concerted attack on our political system.  The releases were designed and timed to interfere with our election and to damage a presidential candidate.

(END VIDEO CLIP)

MELBER: Bob Mueller gets the final word there speaking to the stakes of his investigation in Russian meddling that he indicted.

That does it for our special coverage.  But don`t go anywhere.  "HARDBALL" is up next.

  THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END