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    05.22.18 Professor Miriam Baer Discusses Mueller Probe and President’s Demand for DOJ Investigation with CBS News and Vox
    Professor Miriam Baer

    Professor Miriam Baer, an expert in white collar crime and criminal law, spoke with CBS News on the one-year anniversary of the investigation by special counsel Robert Mueller into Russian interference in the 2016 presidential election. She later spoke with CBS News and Vox about President Donald Trump’s demand via Twitter that the Department of Justice (DOJ) investigate whether the Federal Bureau of Investigation (FBI) infiltrated or surveilled his campaign for political purposes.

    Appearing in a May 17 segment airing on “Red & Blue,” Baer, a former Assistant U.S. Attorney in the Southern District of New York, discussed whether a sitting president can be indicted. The president’s lawyer Rudy Giuliani has said he’s been given assurances that the special counsel will not indict President Trump in accordance with past legal opinions from the U.S. Department of Justice (DOJ), but Baer said there’s a difference between questioning whether a sitting president can be indicted and being given assurances that it would not happen.

    “There are two different issues: First, there is an understanding among academics and people at the DOJ that there might be a constitutional problem with indicting a sitting president because it would undermine the executive branch,” said Baer. “But that says nothing about subpoenaing a president to testify.” 

    “Separately, Giuliani seems to be saying that the special counsel, or someone working with the special counsel, made some intimation that they will not indict the president while he is sitting in office—and it’s unclear whether that statement was actually made,” she said.

    Baer, who appeared with Columbia Law Professor Jennifer Rodgers, also explained the reasons why a president would be protected from indictment but not from a subpoena, saying the actual experience of defending yourself in a criminal case would be all-encompassing. “It would essentially take you out of your job as president,” whereas subpoenaing someone to give testimony would only “take you out of a day,” adding that the argument against being subpoenaed seems weaker but would still likely be litigated.

    Baer also discussed the scope and duration of the probe, noting that under the attorney general’s special counsel regulations, Mueller can look at anything that arises out of the investigation and any obstructive behavior in response to the probe.

     “The idea is that if the special counsel becomes aware of something different but important that he thinks needs to be investigated, he can go back to the attorney general who then decides whether to enlarge his jurisdiction or assign the matter to someone else—which is what we saw with respect to Michael Cohen,” she said.  

     Baer has a simple message to critics of the investigation’s duration: “You want your prosecutor to take time. That is part of justice. That we actually sift through the evidence and we’re careful with the evidence to make sure we’re making the right decisions,” she said. “To the extent that people are saying it should end after 12 months goes against everything our Supreme Court has said about grand juries.”

    On May 21, Baer discussed Trump’s demand for an investigation into the FBI in both a CBS News segment and Vox story. Addressing whether the president’s demand is legal, she said there is no Supreme Court case that forbids the president from calling for an investigation of the FBI’s supposed “infiltration” or surveillance of presidential campaign for improper purposes. Moreover, despite the bombastic tone of the president’s tweet, it is difficult to label it obstruction because it specifically identifies as its target the FBI’s surveillance for “political purposes.”

    “At least on its face, Trump’s tweet restrains itself to calling out surveillance that was undertaken for improper reasons. Thus, the most one can say about yesterday’s tweet is that President Trump—by demanding an investigation personally, in the midst of a tweet storm—is transgressing important norms of prosecutorial independence. But that’s nothing new,” said Baer.

    At the Law School, Baer is associate director of the Center for the Study of Business Law and Regulation and teaches in the areas of corporate law, white collar crime, criminal law, and criminal procedure. She has been a frequent commentator on legal issues related to the Mueller investigation.

    Watch the CBS News segment on the one-year anniversary of the Mueller probe here
    Watch the CBS News segment on the president’s demand for a DOJ investigation here
    Read the Vox story here