Attorney General Will Barr says Robert Mueller could have reached obstruction decision

This is a rush transcript from "Special Report," May 30, 2019. This copy may not be in its final form and may be updated.

(BEGIN VIDEO CLIP)

WILLIAM BARR, ATTORNEY GENERAL: I personally felt that he could have reached a decision.

UNIDENTIFIED FEMALE: In your view he could have reached a conclusion?

BARR: Right, he could have reached a conclusion. The opinion says you cannot indict a president while he is in office, but he could've reached a decision as to whether it was criminal activity. But he had his reasons for not doing it, which he explained. And I'm not going to argue about those reasons, but when he did not make a decision, the Deputy Attorney General Rod Rosenstein and I felt that it was necessary for us as the heads of the department to reach that decision.

UNIDENTIFIED FEMALE: He seemed to suggest yesterday that there was another venue for this, and that was Congress.

BARR: I'm not sure what he was suggesting, but the Department of Justice doesn't use our powers of investigating crime as an adjunct to Congress.

(END VIDEO CLIP)

BRET BAIER, HOST: Attorney General William Barr with CBS saying that he thought Robert Mueller could've come to a conclusion one way or another with obstruction of justice. He didn't, so that Barr did.

We'll start there with our panel, Fox News senior judicial analyst Judge Andrew Napolitano, Susan Page, Washington bureau chief at "USA Today," and Charles Hurt, opinion editor for "The Washington Times." OK, Charlie, he is so matter-of-fact in his delivery, it is really such a contrast to politicians up on the Hill. But it is a stark difference in saying he should have been able to make a case.

CHARLES HURT, OPINION EDITOR, "WASHINGTON TIMES": And more than just that, I think it was a real shot across Mueller's bow, because you think about what happened here. Mueller didn't have to come out and say any of this. As he said himself during his statement, nothing he said is different from what was is in his report, and just as if he were to testify in front of Congress, nothing he would say there would be different than what is in the report.

Why did he say it? Why did he come out and do it? I can't answer why, but, clearly, he was aiming to send a political flare and to kind of role the political waters here. And he waited until Bill Barr was on his way to Alaska, the farthest you can be away in the country in order to do this. And I can't help but think that Bill Barr was firing sort of a shot back across Mueller's bow in response by saying, why didn't he do his job? Why didn't he make a ruling on the obstruction issue? Because I think that Bill Barr knows the reason, the answer to that, and I think Mueller knows the answer to that, and that is that they couldn't have charged the president. They didn't have the evidence.

BAIER: Ultimately, Susan, because of the rules of the Special Counsel, it is Attorney General Barr's decision to make, not Robert Mueller's.

SUSAN PAGE, WASHINGTON BUREAU CHIEF, "USA TODAY": But Mueller says the reason that they didn't come to a conclusion was not because they didn't have the evidence, but because they were prohibited from bringing an indictment. And he said that it would be unfair to make a charge without giving the person you are charging the opportunity to respond to it in court. You can accept that it is his real reason or not, but that was his justification for this, for the action that he took.

I think it is hard to be inside Mueller's head, I think there are possibly two reasons why Mueller made this announcement yesterday. One is that he differed with the interpretation that Barr put out about what his report said. It's different. His interpretation of his statement about what his report said is different from Barr's description of it. And the other is the final thing that Mueller said in his announcement, which was that every American should be concerned about Russia's influence and attempt to meddle in our election that that's getting no attention, and it is still getting no attention.

BAIER: We did a piece about it today. We talk about it a lot, what is happening, what is not happening. I agree, he probably thinks people didn't read the report. I did. I know a lot of members of Congress dated and a lot of people here did. Judge, there is this difference, your take on this day?

JUDGE ANDREW NAPOLITANO, SENIOR JUDICIAL ANALYST: It is not uncommon for two prosecutors looking at the same evidence to come to different conclusions. This happens every day in every prosecutor's office. But I think you hit the nail on the head when you said it is up to the attorney general to make these decisions.

I think the reason Mueller did not come to a conclusion on obstruction of justice is not because the evidence wasn't there. It's there. There are 10 crimes outlined. There's enough there to get an indictment on any of them if the defendant were not the president of the United States. I think the reason is because he knew that the attorney general would never give him permission to do so. And he is a soldier. He is a marine. He does not want to challenge and take on his boss publicly.

BAIER: You think that the 10 things listed there could be actually prosecuted as crimes?

NAPOLITANO: Absolutely. So do more than 1,000 former federal prosecutors.

BAIER: Even though there is no underlying indictment on the conspiracy?

NAPOLITANO: Underlying indictment theory is not even embraced by the present DOJ.

BAIER: I understand, that you could go forward with the crime, but you think a prosecutor would actually do that?

NAPOLITANO: I don't know if a prosecutor would, but under the law there is enough for a prosecutor to do so. And as far as the OLC, Office of Legal Counsel opinion, it's an advisory opinion. It was issued in October of 2000. Forty-five days later, the Justice Department prosecuted the president of the United States, Bill Clinton, for obstruction of justice and perjury. And 45 days after that he pleaded guilty to a felony while still in office. So it is clear that this opinion is not a bar to prosecuting the president.

BAIER: Right, but Judge, I guess the question is, if he was never going to make a case, he was never going to go no-go, decide if he had a case or didn't decide he had a case, why wouldn't he say that at the beginning? That's number one. Number two, how long did he know he was not going to make a case? And how long did he know there was no collusion? Number three, why did we go through all of this, other than the Russia part, which is incredibly important?

NAPOLITANO: So you've just asked the first three questions that whoever on the House Judiciary Committee gets to question him first, probably on the Republican side, Congressman Collins, I think, the ranking Republican, will want to ask. One thing that Bob Mueller said yesterday which is absolutely not true is that this is not the last time we are going to hear from him. He's a private citizen. They're probably going to subpoena him next week.

HURT: There is no way any prosecutor could prosecute the president for carrying out the duties of the president. The president is the only person who got elected president, and in trying to decide what is part of his duties and what is obstruction of justice, it is just, there is nobody -- no one is in that position to do it.

BAIER: We're going to continue this. There's more on this conversation about impeachment, the political decisions, and there is a lot more here. So we'll just call an audible, and we'll be back after this.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SEN. ELIZABETH WARREN, D-MASS., PRESIDENTIAL CANDIDATE: I didn't take an oath to support Donald Trump. I took an oath to support the Constitution of the United States.

(APPLAUSE)

WARREN: So impeachment it is.

DONALD TRUMP, PRESIDENT: To me it's a dirty word, the word "impeach." It's a dirty, filthy, disgusting word. And it had nothing to with me.

SEN. CORY BOOKER, D-N.J., PRESIDENTIAL CANDIDATE: I think history is going to look back at this moment and what we choose to do and see if we did the right thing. And I think the right thing right now is to hold this president accountable for his actions.

REP. NANCY PELOSI, D-CALIF., HOUSE SPEAKER: We won't be swayed by a few people who think one way or another who are running for president, as much as I respect all of them.

(END VIDEO CLIP)

BAIER: That is the talk in town about impeachment as you look at the 41 House members calling for impeachment that includes one Republican at this point.

I want to go back to just correct one thing. Bill Clinton was not indicted. He was, plead guilty to a misdemeanor on his last day in office to avoid post-presidency indictment.

NAPOLITANO: He pleading guilty to information, which is an instrument in lieu of indictment when --

BAIER: It wasn't a felony. It was a misdemeanor, but he wasn't indicted. My point is that you can debate the OLC, whether it's the legal opinion is right or not, but that Bill Clinton one, I just wanted to correct that record. As you look at impeachment, Judge, you think that that is going to gain steam here?

NAPOLITANO: I don't know the answer to that. I actually agree with Mrs. Pelosi that impeachment without a broad bipartisan national consensus behind it is fruitless, futile, and needlessly divisive. Now, when the Sam Ervin Watergate Committee, which was both Houses of Congress, began its investigation of Richard Nixon, there was no broad national bipartisan consensus behind it. At the end of that investigation, by the time Rodino and the House Judiciary Committee started, there was. The Democrats may want to use that as a model. But right now, there's nothing but the hard core of the Democratic Party's left, as I see it that wants impeachment

BAIER: Susan, it is politically perilous. Everybody talks about this. This is why Pelosi and Biden are where they are.

PAGE: Forty Democratic House members now support impeachment. None of them are the 40 Democratic House members who flipped Republican seats in 2018 and delivered control of the House to the Democrats. And that is the balancing act that Nancy Pelosi has. And she is pretty unflappable. I think there is more frustration among Democrats that has fueled the fires for impeachment, but if you ever wanted to have a leader who could hold the line, at least for the foreseeable future, it would be Speaker Pelosi.

BAIER: Here is Bob Mueller and the president today.

(BEGIN VIDEO CLIP)

BOB MUELLER, JUSTICE DEPARTMENT SPECIAL COUNSEL: If we had had confidence that the president clearly did not commit a crime, we would have said so.

TRUMP: I think that he is a total conflicted person. I think Mueller is a true never-Trumper. He is somebody that dislikes Donald Trump. He is somebody that didn't get a job that he requested that he wanted very badly, and then he was appointed. And despite that, and despite $40 million, 18 Trump-haters, including people that worked for Hillary Clinton and some of the worst human beings on earth, they got nothing. It's pretty amazing.

(END VIDEO CLIP)

BAIER: What about that, Charlie?

(LAUGHTER)

HURT: I'm going to stop to give Mueller props, because obviously he has a very deep animus towards the president. I think what we saw yesterday was a display of that animus towards the president. But I do think he deserves credit for one thing -- he didn't let that affect the outcome of the investigation. His investigation was clear of all of that animus.

But going back to the statement that Mueller made.

BAIER: But when he asked Congress to do his job, is that part of the animus you're talking about?

HURT: Yes, absolutely. The whole press conference was, because, again, it had no purpose except to roil the political waters and get Democrats in this frenzy that we've seen calling for impeachment. But the statement from Mueller to, it is almost idiotic. Prosecutors, they prosecute. They don't exonerate people. What position does he have to clear somebody of wrongdoing? He can't do that. Either prosecute or don't.

BAIER: Right. And there is Jussie Smollett in Chicago. You've got that story.

Judge, last thing, the Trump president and his team obviously have a problem with what you have been saying about all of this. Your response?

NAPOLITANO: I hear from them all the time all the time, I will tell you. I am analyzing the law as I understand it to be, not as the popular will might be. I actually agree with what Charlie just said, which is that prosecutors don't exonerate. The word doesn't appear in the criminal code. They either decide there is enough evidence to prosecute and they prosecute, or they don't say anything.

BAIER: Panel, thank you. A little audible there. When we come back, friends for life.

(COMMERCIAL BREAK)

BAIER: Finally tonight, you cannot buy a kidney, but you certainly can show some heart when you rent a billboard in L.A. to try to find a match for a friend. That's exactly what Ilya Polyakov did for his best friend. Antonio Calderon suffers from a kidney disease known as FSGS. He has been on dialysis for two years. He wasn't finding a match. And $5,000 later this billboard has now attracted more than 200 inquiries to try to help Antonio get that match.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: A gesture like this, this is something he would have done for any of his friends. And so I think he very much deserves that it happens for him.

(END VIDEO CLIP)

BAIER: Pretty cool.

Thanks for inviting us into your home tonight. That's it for the “Special Report.” Fair, balanced, and unafraid. "The Story", guest-hosted tonight by Sandra Smith, starts right now.

Hi, Sandra.

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