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Legal Avenues In Ukraine Affair

SCOTT SIMON, HOST:

Impeachment is a political act, a constitutional response to wrongdoing by a president. If people below the office of president have committed wrongdoing, what legal ways are there to hold them accountable? Berit Berger is a former assistant U.S. attorney who now heads the Center for the Advancement of Public Integrity at Columbia University. Thanks so much for joining us.

BERIT BERGER: Absolutely. Thanks for having me.

SIMON: We could together make a list of people in the Watergate scandal who went to prison after they were convicted of concealing a crime - John Dean...

BERGER: Right.

SIMON: ...John Mitchell, H.R. Haldeman, Jeb Stuart Magruder. Are there people in this inquiry who you feel should lawyer up?

BERGER: Absolutely. I mean, it's still early stages to know if any of those, you know, potential charges would bear out. But there is absolutely enough there that people should, like you say, seek counsel and certainly be a little bit nervous.

SIMON: Well, where's the there there? what specific areas of the law?

BERGER: Right. So at the heart of all of this is really that allegation that the president abused his power by trying to solicit some kind of interference from Ukraine that would help him with the 2020 elections. So associated with that, there's sort of a swirl of people in his orbit that may have assisted in these efforts.

So one that kind of jumps to mind would be Giuliani. Giuliani could theoretically be prosecuted someday for breaking some type of federal election laws. Federal election laws, as people are now becoming very familiar with this concept - they make it illegal to solicit anything of value from a foreign government or from another person in a foreign country for the purpose of influencing the outcome of an election. So that's sort of the one main, you know, blinking red light that would go off in my mind of a crime that Rudy Giuliani or others in this orbit actually could theoretically be prosecuted for.

But it's certainly not the only crime that's called into question here. Giuliani and others could also, you know, theoretically be brought up on charges of bribery, some sort of extortion or even, you know, a very obscure act called the Logan Act, which bars private citizens from negotiating with a foreign government on behalf of the United States.

SIMON: Well, it used to be obscure. It's gotten a lot (laughter) - a lot of attention in recent months. But...

BERGER: A lot of attention, yet no one has actually been convicted under this law ever (laughter)...

SIMON: Yeah.

BERGER: ...Since, like, the late 1700s. So it would be a first. But we are sort of dealing with groundbreaking situations here.

SIMON: Well, let me ask you - if people on the other hand are convinced that President Trump would, at some subsequent point, give them a pardon of any sort of incentive, the law might be for them to comply would be gone.

BERGER: Yeah. I mean this - we saw this with respect to the Mueller investigation. And I think it's something you can't discount here as well. You know, the typical incentive structure that exists within, you know, the federal criminal system of, hey, you should come in and cooperate and maybe you can get some sort of a deal down the road, all of that is really turned on its head when you have the likelihood of a pardon hanging over you. It makes it much more unlikely for people to come forward and try to assist law enforcement or to insist Congress with an investigation. It makes it less likely for people to willingly plead guilty to crimes. So yeah, I think it definitely changes the incentive structure in a meaningful way.

SIMON: In about the 45 seconds we have left, do you think the Department of Justice is - has become part of the president's defense team?

BERGER: You know, there's been a lot of really questionable decisions in the last few months. I think, for me, the DOJ's decision not to open up an investigation after getting a criminal referral from the CIA is, for lack of a better word, baffling. We have opened up investigations regularly at the U.S. attorney's office on, you know, only sort of allegations of a criminal act. So I cannot begin to understand why they would not have opened up some sort of a fulsome investigation to get to the bottom of this.

SIMON: Former assistant U.S. attorney Berit Berger - she's now at the Center for the Advancement of Public Integrity at Columbia - thanks so much for being with us.

BERGER: Of course. Transcript provided by NPR, Copyright NPR.


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