 The Justice Department on Wednesday named former FBI Director Robert Mueller as special counsel to investigate possible collusion between the Trump campaign and Russia. Can a sitting president be prosecuted? Can a sitting president be thrown in prison? Or is impeachment our only hope for removing Trump? For more on this we're going to be joined in Washington DC by Dylan Matthews who writes for Vox but first a few words about Vox. Vox was set up three years ago by Ezra Klein who left the Washington Post to basically do over at Vox what he was doing over at the Washington Post and that is to explain the news. Vox.com explains the news. The explainers at Vox are essential great clear concise writing. Vox I cannot recommend Vox enough if you see something in the news you don't understand it go to Vox.com. Vox.com understands that most people see every news story as a soap opera that they're watching for the first time and from what I have been able to see over at Vox is that Ezra Klein and his staff they get that everyone including the experts everyone we're all flying on instruments we can't remember how we got there and that's why Vox is so great it lets you feel okay for not knowing anything. Welcome to the show Dylan Matthews. Great to be here and that's I think the best and most complementary description of what we do that I've ever heard so thank you for that. Well I mean it and that's kind of been the mission statement of this show is I have children and I've always been trying to explain to them the news I always wanted to sit with them and watch the New York watch the New York Times go over the New York Times and my father used to explain to me how to read the New York Times and how we got to where we're at because you really can't understand a news story unless you put it in context and Ezra Klein I would assume is in his 30s and talk to people his age and younger and they're lost because there's a shorthand I'm getting angry there's a shorthand this makes me really angry people use a shorthand not to inform but to exclude to make themselves sound smarter it's why mass used to be delivered in Latin thank you for joining us we're done thank you that was quick but yeah no we try to make things accessible and and yeah that I think a lot of that is people writing this inverted pyramid format and news stories that made a lot of sense for print newspapers since you needed something where you could cut off the end if you absolutely needed to for for regional papers and like and it doesn't make as much sense online and so we're trying to play around with some new ways of presenting the news and trying to put it in more context so I'm glad you're a fan I'm a fan you know I go to the intercept for great investigative reporting and I go to Vox to understand what I just read which is the intercept does really great work yeah there's a very exciting new media happening I think Vox we have to talk about Robert Mueller but I think Vox changed the New York Times I think Vox single-handedly changed the New York Times the New York Times is my my bible as is the Washington Post but I've noticed that the New York Times since Vox got it that most of us don't get it and we need to be told what happened and how we got there okay we're going to talk about that was me clapping my hands out of excitement we're going to talk to Dylan about whether or not a president can be prosecuted in a second but case in point since we set up the interview yesterday you wrote a piece for Vox entitled and I love this nine questions about Watergate you're too embarrassed to ask and that's such a great example of the public service Vox.com provides Vox.com provides not just for millennials who only heard about Watergate but for aging baby boomers like me who live through Watergate and can't remember a damn thing so the news is happening really fast is it faster than Watergate it really seems that way and it certainly seems to be having really negative repercussions for Trump faster than Watergate I think one of the remarkable things for someone like me who didn't live through it and is sort of reading about it as history is that in the midst of the beginnings of the scandal that after the actual Watergate break in after people were arrested it ties to his campaign he won the biggest victory in modern American history in the 1972 presidential election that he seemed unscathed and it really wasn't until almost a year after after the initial break in that things started to escalate the Senate set up a committee to investigate the matter a special prosecutor was appointed and it was kind of a slow burn and from there it took another year or so until sort of things got to a point where it was clear that that Nixon had tried to interfere with the FBI investigation which was sort of the smoking gun that that led a group of Republicans to go to the White House and say your presidency is over and it's really remarkable to me now that we have this this memo that James Comey wrote saying that the president asked him to scuttle an FBI investigation that it's a pretty close parallel to a very late development in Watergate that sort of sealed the deal in a lot of ways it doesn't seem to be going a lot faster right could Nixon have been prosecuted for obstruction of justice I know that he some of the articles of impeachment were about obstruction of justice but was Archibald Cox who was a special prosecutor who was fired could they have pursued obstruction of justice that's what you wrote about right so the conclusion that Cox and Leon Jorsky who succeeded him after Nixon fired Cox came to you was that the president can't be prosecuted outside the impeachment process while he's in office they were absolutely of the view and I think it is sort of uncontributable among legal scholars that the president can be prosecuted for crimes committed as president once he leaves office so there was a really real possibility after Nixon resigned that Jorsky or another prosecutor which filed charges against him now that he was sort of lost presidential immunity in their view that was was rendered moot after Gerald Ford pardon Nixon and it actually made it impossible to prosecute him for any Watergate related wrongdoing but that was the view of the social prosecutor was the view of the Justice Department the Justice Department looked into it again in the late 90s during the Clinton impeachment scandal when this sort of became a newly relevant question and came to the same conclusion that the president is immune from prosecution by normal federal prosecutors until he leaves the office I do remember Clinton was deposed in the Paula Jones lawsuit which was a civil suit which how was that different than special prosecutor or special counsel so yeah so as you say that the difference comes down to a distinction between civil and criminal proceedings that I think the conclusion that the Supreme Court came to in Clinton v Jones uh the ultimate case they held about whether or not the president was immune from civil suits was there's nothing in the Constitution including it and it wouldn't cause an undue burden to the functioning of the presidency that it had already been a stylish and Watergate that you could make the president testify or give up documents and sort of do the same sort of thing as that and if the court ruled against him then the most that would happen is you would have to pay some money and I think the argument by people who say that you can't do a criminal prosecution is that that's just a whole other ball of wax that you you might be able to be president even as you're paying off a legal settlement to someone you can't be president from prison can't be president from prison yet that's that's the argument and I should say that this is not uncontroversial that right this is the prevailing view that the Justice Department uh has adopted it's the view of a lot of lawyers the Supreme Court hasn't rolled on this and there are a lot of professors who read the lot differently and think that it would be totally legitimate in practice it's hard that a lot of the crimes the president could conceivably commit and the crimes that are being discussed in Trump's case are federal crimes and the entire federal law enforcement apparatus including the special prosecutor are serving at the pleasure of the president so if a normal federal prosecutor like the u.s. attorney for d.c. say hadn't been died from Trump to fire them and that was the issue for him get ready folks we're going to talk about the 1819 Supreme Court ruling McCulloch versus Maryland but as an explainer oj so people understand the difference between a criminal prosecution and a civil prosecution talk to me as though Trump were oj right which is unfair to oj uh i suppose i i just finished the the great new documentary about oj last night so this is a timely uh huh it's so so in a criminal case there's a different standard of proof so let's say the trump sort of you know as he's threatened to do sometimes goes to the middle of fifth avenue and shoots someone and and sees what happens so the district attorney for minhatten could indict him for murder and then as as anyone who's seen law in order could tell you you have to prove beyond a reasonable doubt that he committed it if they're found guilty you're subject to to prison and other criminal penalties that's a pretty high bar of proof it was one that that the jury and oj in some case didn't think they met in a civil suit there is a lower burden of proof so the jury when the goldman family sued oj after the criminal trial for for uncle death they just had to prove that the preponderance of evidence that for 51 percent of the evidence in the case indicated that he had done it and then if the jury came to that conclusion which it also doesn't have to come to unanimously the way a jury in a criminal trial in most states does then they can decide on on punitive damages and there's additional damages from there which would all be monetary so i think the reading of the law that the department subscribes to is that someone could sue trump for wrongdoing and it could go through the federal courts and wouldn't necessarily be tossed out of court just because he's the president and did you say it's you did i you did you just say that the reading of the law is from the justice department's office of legal counsel is that their interpretation of it is that what you just said right so they're they're the people who think that that the president is criminally immune the supreme court is actually wrong that he's not civilly immune so that's that's a sort of uncontroversial difference between criminal and civil criminal you're being prosecuted by a government agency a prosecutor's office if you're found guilty you can go to prison defined civil you're being sued by another private actor typically so say the family of someone you killed in the case of oj the difference between criminal and civil that's important for readers and listeners to know it just is and and and it's just bandied about as though we're supposed to know that difference trump university before trump got obama's chair he was being sued for trump university was that a criminal suit or a civil suit that was a civil suit so he was not being prosecuted he was being sued by the the new york state attorney general's office he was being sued by the new york state attorney general's office so that is a a state government not prosecuting criminally but in a civil court going to a civil court right it was at schneiderman is that who it was schneiderman yeah the state attorney general can go into a civil court or you and i as civilian civil can go into a civil court and sue somebody for damages that's right so use the example of obama care a lot of republican states sued president obama and the federal government for implementing obama care because they considered it to impinge on the rights of states simultaneously from their Catholic groups and hobby lobby sued on religious freedom grounds as individuals and they were the same kind of case because in each case it was an actor saying that this this law had violated their rights and that they needed a remedy but it was different kinds of actors bringing that claim you know why i love talking to you because i couldn't enjoy my stupidity i mean there's a real difference between stupidity and ignorance and i think the latter is much more common and much more acceptable like i'm very ignorant about physics and most sports and i don't think that's that's a sign that there's like something wrong with my brain i think there's a complicated world out there and you can only know so many things about it right now you're not a lawyer right i'm not a lawyer i i just play one on the okay you present some scenarios over at vox on how to get rid of trump and by the way i'm partisan you're not vox is not partisan it's been accused of having a left wing slant only because it remembers history if we try yeah so you paint some scenarios you say that the federal prosecutors are going to have more difficulty than state prosecutors bringing a criminal case against donald trump why does the chain of command make it so difficult for federal prosecutors to go after trump federal prosecutors as a rule are part of the justice department and the justice department is an executive cabinet agency run by a presidential appointee whose members serve at the pleasure of the president and who runs the justice department who runs the justice so it's currently run by jeff sessions who is the attorney general right who is a big trump loyalist sessions has recused himself from this particular case and so now robert rozenstein who's the deputy attorney general serves as acting attorney general on cases involving trump and russia who is robert moeller who appointed him and who does he answer to so robert moeller served for about 12 years as fbi director in the dirsh of you bush and obama administrations prior to that he was a career federal prosecutor with a pretty good reputation he was just appointed by rod rozenstein the deputy attorney general in his capacity is acting attorney general on matters concerning trump and russia and he is is going to be what's known as a special counsel so a special counsel is an independent person who is brought in by the attorney general of the justice department to investigate a case that for whatever reason the department doesn't feel like it can impartially investigate on itself okay he's a special counsel ultimately who is his boss ultimately his boss is rozenstein so and who is rozenstein's boss rozenstein's boss's sessions and sessions boss is trump can trump fire a special counsel he absolutely can and richard nixon did or was archival cox a special prosecutor so the terminology gets confused here so cox was appointed under the same statute that meler has been appointed under after watergate there was a different law that was in effect for a couple decades known as the independent counsel law that set up a system for appointing prosecutors who were not just accountable to the department of justice but were also accountable to a panel of judges so they could be more independent that was the system through which iran contra was investigated and it was the system that saw kind of star appointed as independent counsel to investigate bill clinton and people i think we're so exhausted after the bill clinton saga that the law authorizing that position was what lapsed during watergate john michael attorney general or whomever they appointed a special counsel who was archival cox and he was investigating watergate he was a special counsel not a special prosecutor correct i think special counsel and special prosecutor you can use interchangeably in this case okay great after watergate to avoid was it the saturday night mass what was it called when they fired the saturday night massacre so and that was just so people know when nixon was upset with what cox was doing and ordered elliott richardson who was the attorney general to fire him richardson refused and resigned richardson's deputy refused and resigned and it came to the number three person in the justice department to actually carry out the order was that robert bork it was robert bork who was later appointed to the supreme court by ron reagan and lost senate confirmation probably because of that and other things okay so after watergate just to review after watergate congress passed a law that created something called the special prosecutor correct independent counsel an independent counsel and a kenneth star who tormented clinton was operating under this new special independent counsel law as i remember janet reno was the attorney general under clinton you say there was a three judge panel that had a what approve the appointment of a special prosecutor how did how did that law work and it no longer exists because it was like torque amada right but how did kenneth star work and it seems like he had a lot more freedom than say archibald cox or uh moeller's gonna have right so under the law you can only remove independent counsel for cause that janet reno could wire the independent counsel but she couldn't do it for whatever reason she wanted to she she had to prove that they had they had misacted and and show show that and if the council had been terminated and they didn't think it was for cause they could sue her and overturn it additionally there was a three judge panel which in that case was was run by some republican appointees on their dc circuit that also oversaw star and actually replaced star's predecessor who they didn't think was aggressive enough and replaced him with star i think it was fit your hitch or something yeah something like that something like that okay can you give me seven more minutes absolutely okay great moller is over at the justice department he's a special counsel fbi head for almost a decade very respected it is conceivable that donald trump will fire him we're learning that jared kushner is whispering in trump's ear just to fire everybody and be an authoritarian estate prosecutor cyrus vance jr son of jimmy carter's i believe state department secretary of state and vivian vance's grandson from i love lucy did you know that i'm making that up i'm making that up oh my god you're too young to get that referenced knock it off knock it off behavior so don't make me uh okay so cyrus vance jr is not a federal prosecutor is that correct or is he a federal or is he a state prosecutor he's a he's a county prosecutor so thursday's fans is the prosecutor for new york county which is the legal entity that encompasses manhattan so the way the prosecutors work in new york city is that each of the boroughs has their own prosecutor who's elected by people there so there's a brooklyn prosecutor there's a bronx prosecutor there's a statin island prosecutor there's a queen's prosecutor and five answers to manhattan prosecutor and it's it's probably the most powerful local prosecutor's office in the country just because of how many people live there and wall street and wall street and and because state crimes cover a lot of really serious offenses so murder cases in new york are all tried through the district attorney's offices great okay so get ready folks because we're about to discuss the 1819 supreme court ruling of mccullough versus maryland all right so cyrus vance jr decides he's gonna prosecute donald trump for crimes can donald trump fire cyrus vance he cannot play response does not serve at the pleasure of donald trump he is not a federal employee he is an elected official for new york county and can be removed i am not an expert on the removal procedures for for municipal offices in new york but you look accountable ultimately to the voters of manhattan he decides he's going to indict donald trump what could donald trump then claim and here's where we get to in the cullough versus maryland 1819 supreme court ruling so under that ruling which was by john marshall who was an early chief justice of the u.s supreme court who who laid down a lot of sort of the foundational rulings for how the federal system of government works basically said that the federal law trumps state law and that the states can't pass laws that try to limit the behavior of the federal government and and so before any trial happens what would occur in a case like that is that trump could use his power as president to remove the case from state court to federal court he could argue to the court that under mccullough of the maryland is unconstitutional for a local prosecutor to charge him in such a manner and then the federal courts would have to consider that and come to rulings and it would almost certainly be appealed by both sides depending on who wins at the district court level and then the court of appeals level all the way up to the supreme court which would be forced to put the first time ever say definitively whether you can prosecute a president and so it's highly unlikely because i'm thinking what would happen if they pulled this with obama what would happen if alabama tried this right we would be outrageous right and and i think a lot of the reason why some law professors even some left-leaning law professors don't think this is acceptable is because of that that they think it opens the door to frivolous use of prosecutorial power to try to bring down presidents before you go nixon was an unindicted co-conspirator that's what he was named as during watergate because jurorski who replaced archibald cox realized he couldn't indict nixon great well thank you so much this has just been this is heaven for me because it really is you are very generous with your time and i thank you for your hard work and you know anyway dylan mathews writes for vox everybody should go to vox vox dot com and i hope you come back i would love to thank you for having me