Fox News judicial analyst Judge Andrew Napolitano told host Neil Cavuto that special counsel Robert Mueller can resign from the Department of Justice if the president tries to stop him from testifying about his final report. Napolitano says it might come to that because the Mueller report says that the president committed obstruction of justice, which "has been found by either the Congress or the House Judiciary Committee consistently to be a lawful constitutional basis for impeachment."
"Asking people who work for you to lie to federal investigators, which is what Richard Nixon and Bill Clinton were accused of doing, has traditionally been characters as a species of 'high crimes and misdemeanors'" he said.
"The president says that didn't happen," he explained. "Bob Mueller says it did [and] it would be a basis for the House Judiciary Committee to begin investigations if they want."
ANDREW NAPOLITANO: They are probably going to subpoena Bob Mueller and then he would be under the burden either to comply or to go to a federal judge and have the subpoena quashed. He is an employee of the Justice Department so his boss, Bill Barr, could already say you could go, could change his mind because his boss, the president, has changed his mind.
NEIL CAVUTO: But they’re mad at everybody, Barr, Mueller if he doesn’t, right?
NAPOLITANO: Bob Mueller can negate all of this by resigning from the DOJ, saying my job is over. Then he’s a private citizen and nobody can stop him.
CAVUTO: Does the president have the power to say you shall not testify?
NAPOLITANO: To a government employee? Yes. He does not have that power to a private person. There is no privilege. The report is 99% public. The author of the report has helped make it public. He certainly lawfully can testify about it.
CAVUTO: All right. I thought the president open, had nothing to hide, everyone wants to talk, let’s do this.
NAPOLITANO: That was the attitude of the president when he first learned of the four-page summary of conclusions Attorney General Barr released. That was the attitude of the president when the report first came out, when the president’s people like the rest of us examined the rest of the report, he flipped 180 degrees and was back to being critical of Mueller and the investigation and the people that participated in it. Then he said I have nothing to hide, then he said as recently as just last night, I don’t want him to go. So I don’t know how that plays out. I don’t know if I don’t want him to go is because to be translated in "I order him not to go" or if it’s just the president’s opinion at the moment.
CAVUTO: So if Mueller were to testify, and there is a difference of opinion between Bill Barr and Mueller's people on what constitutes a pass on obstruction of justice, I get the sense that for Mueller's people it is not a total exoneration. Maybe the president doesn't want that brought up?
NAPOLITANO: I would think that if Mueller testifies, it will be the biggest audience since the finale of "Dallas" and "Who shot JR?" There will be a lot of back and forth. Republicans basically saying, "Why didn't you investigate how this whole thing started?" A legitimate question. And Democrats saying, "Isn't this obstruction of justice? Isn't this obstruction of justice? Isn't this obstruction of justice?" That latter Q&A is probably what the president doesn't want...
Asking people who work for you to lie to federal investigators, which is what Richard Nixon and Bill Clinton were accused of doing, has traditionally been characters as a species of "high crimes and misdemeanors."
CAVUTO: The president says that didn't happen.
NAPOLITANO: Right, right. Bob Mueller says it did, so it would be a he-said-he-said. But it would be a basis for the House Judiciary Committee to begin investigations if they want.
Stated differently, obstruction of justice has been found by either the Congress or the House Judiciary Committee consistently to be a lawful constitutional basis for impeachment.