TF 34: Trump Agonistes (Rush Transcript)

Harry Litman [00:00:06] Welcome back to Talking Feds, a Prosecutors roundtable that brings together prominent former federal officials for a dynamic discussion of the most important legal topics of the day. I'm Harry Litman. I'm a former United States Attorney and Deputy Assistant Attorney General and a current Washington Post columnist. Today we're in Austin Texas -- which more than lives up to its image as a super cool and fun town -- at the Texas Tribune Festival in the library at the Texas Public Policy Foundation. And, in fact, we are here right next to the Governor Rick Perry balcony. And as some of you know the governor himself figures in the events of the last week. He was dispatched in place of Vice President Pence considered a bit of a come down to the inauguration of President Zelensky of Ukraine. 

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Harry Litman [00:01:06] Anyway, we are joined by a really stellar panel of feds to help us understand what's perhaps been the most blockbuster week in two years. To move directly to it just let me introduce first Frank Figliuzzi -- returns to talking Feds. Frank as you all well know is a former FBI Assistant Director and an NBC News national security contributor. Frank great to have you as always. 

Frank Figliuzzi [00:01:34] Good to be in person with you in Austin. 

Harry Litman [00:01:36] Next we're joined for the first time on Talking Feds by Natasha Bertrand the national security correspondent at Politico and MSNBC contributor as well, who has, I've got to say, broken story after story in the last year. Welcome Natasha. 

Natash Bertrand [00:01:55] Thank you for having me. 

Harry Litman [00:01:56] So I just want to ask you. It's an interesting choice and I think it worked out great that you have specialized at a fairly young age in national security. Did you choose that beat or fall into it? How did you happen to make that your journalistic focus? 

Natash Bertrand [00:02:12] Well I've always been interested in foreign policy actually more than national security but obviously the two kind of go hand-in-hand. So when I first started in journalism I was really interested in covering the Syrian civil war. So I did that for a while and then Russia intervened in Syria obviously. And at that point I started getting more and more interested in Russia and what they were up to in the international stage. And right when I was covering that Russia intervened in the 2016 election. So my editor said, "You seem to already know quite a bit about Russia. Why don't you take this story on?". 

Harry Litman [00:02:49] Just a simple ittle story that you can get to the bottom of in a couple of weeks. 

Natash Bertrand [00:02:53] Yeah, you know. He said, "This this seems like it could be big." So I took that on and from there I got more more interested in national security reporting and intelligence reporting. 

Harry Litman [00:03:04] And finally Ron Klain joins us from Washington D.C. Ron of course is executive vice president and general counsel of Revolution LLC. He served as the former Chief Counsel for the Senate Judiciary Committee, was Chief of Staff for the Attorney General Janet Reno and the Vice President Al Gore and the Vice President Joe Biden and is a current adviser to the Biden 2019 presidential campaign. So his extensive experience and sense of government dynamics are I think uniquely tailor made for our discussion today. Ron thank you very much for joining. And welcome back to Talking Feds. 

Ron Klain [00:03:44] Thank you Harry. 

Harry Litman [00:03:45] Today we thought we would kick it off with a side bar from a friend of the podcast U.S. Congressman Ted Lieu from California's thirty third congressional district. He is a member importantly of the House Judiciary Committee and he is going to tell us the basics about impeachment and impeachment inquiries. 

Ted Lieu [00:04:08] What is an impeachment inquiry and how does it differ from impeachmen?  Under the Constitution, the House of Representatives has a sole power of impeachment. The House impeaches someone by simple majority vote of its members. But the process of getting to an impeachment vote is complex. Impeachment begins in the House, when a member either declares the charges against an official or requests an investigation into some conduct. This request is usually made by resolution. That resolution is sent through appropriate committee usually a House Judiciary Committee for consideration. The committee investigates the conduct and decides whether or not it is impeachable. This investigation is known as impeachment inquiry. If warranted, the committee drafts a resolution called Articles of Impeachment describing specific charges of misconduct. It then votes to report the articles to the full House. Each allegation this resolution is an Article of Impeachment. The House may consider the Articles of Impeachment. As with all legislation it may accept reject or amend the Articles of Impeachment or could choose to impeach even if the committee did not recommend to do so. The House then votes on impeachment. Judges have compared the process to a grand jury indictment as with an indictment, impeachment means only that a matter be set for trial. After the impeachment vote the House appoints managers who traveled to the Senate to impeach the official and exhibit the articles against him or her. As Robert Mueller made clear in his report quote, "The ordinary means for an individual to respond to accusations is hrough a speedy and public trial without the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use this process or seek to clear his name."  Unquote. The only opportunity for the country to learn the truth by these accusations and for President Trump to clear his name is through an impeachment inquiry and if appropriate an impeachment vote and subsequent Senate trial. For Talking Feds, I'm Congressman Ted Lieu. 

Harry Litman [00:06:12] Thanks very much Congressman Lieu. All right. So now that we know the road map from him let's dive in. I want to start with kind of a big question. You know we've had so many junctures when it looked as if the president was in serious trouble. And we've just gotten used to like you know Lucy and Charlie Brown and the football of expecting the sky to fall in. But in fact the basic dynamic held and the president emerged in essentially the same place politically. So what about now? Is this really different in kind? Is this the real thing? Is the president's viability actually threatened? Let me serve that up to everyone. Ron, can I start with you on that.?

Ron Klain [00:06:58] Sure. I mean look I think it's a little bit yes and a little bit no. First of all the president's viability has been threatened since day one in the sense that he is the most unpopular president in the history of modern polling and he's one of only two presidents who've seen the unemployment rate drop below 5 percent and have his approval rating not be over 60 percent. So I think his illegality, his abusivness, everything he's done, has been an overhang over his presidency. I think this takes this up another notch.  If you're asking do I think Donald Trump will still be president on January 19th 2021 or not. I think he will be. I think that you know I don't want to get to the end here but I do think the odds of the Senate convicting him are very low. I think this is another notch. A greater threat. A significantly greater threat. 

Harry Litman [00:07:48] Greater than say Mueller for example? 

Ron Klain [00:07:50] Greater than Mueller and greater than the aftermath of Mueller. Again he remains a completely ineffective completely unpopular completely weakened president. You know I think this takes that further. But I again I don't think it's going to oust him from the presidency. 

Harry Litman [00:08:04] Yeah well you know he did seem to be at each juncture yet the very narrow sort of knife edge of not even majority support but minority support you know backed by the acquiescence of the Senate seemed to hold at each spot. What do you think Natasha? Are we in you know distinctly the gravest spot for him different in kind from the previous crises? 

Natash Bertrand [00:08:29] I think this is the first time that we've had kind of this smoking gun which is the transcript of the call or the record of the call though not necessarily verbatim transcript but something that the White House obviously thought would be much better for them than it actually has been. And there's been a groundswell of support for impeachment among Democrats and it's been steadily rising for quite some time now. But this incident seemed to have been the trigger that allowed Nancy Pelosi to finally say, "I'm all for this." This is black and white. This is something that the American people can understand. The Mueller investigation was very complicated. There were you know a lot of factors disinformation troll farms et cetera that made it very difficult for the average American to comprehend. And now I think they feel like they have a very convincing and clear case that they can make to the American people where they don't even necessarily have to get into things like Emoluments Clause violations. They don't have to get into the president's you know just kind of generally obstructive behavior which you know many people might not totally comprehend either. So here we have a pretty cut and dry example of Trump asking a foreign power to interfere in our election. Very very clearly asking for a political favor to investigate Joe Biden. And it's the clearest instance yet I think and I think Democrats think of Trump abusing his power in office. 

Harry Litman [00:09:58] Yeah, it does seem quite clean on the one hand and of course it's also unfolding in real time by the time. By the time the Mueller report hit, through good reporting and otherwise everyone knew what to anticipate. It was damning but no more damning than than people were already ready for. But this you know hit like a bomb in the middle of I guess now it's been not quite two weeks and the aftershocks still feel new and real. So Frank this is for sure the gravest juncture yet for the Trump presidency or just you know one more kind of thing that he can dodge?

Frank Figliuzzi [00:10:35] Well nothing's for sure as we know in this administration but there are a couple of things that I think make this stand out. First, there's the cumulative weight factor. This incident, this allegation can't be taken on its own in a vacuum. At some point the dam breaks and we've had allegation after allegation after allegation and this one may well be the one that America just can't stomach. And so why is that? I I've looked at the distinction here. One thing is America loves a hero. America loves an unvarnished drama where a hero emerges and previously we've had people like Mueller, trying to do the right thing. We've had other folks but they've all been tainted as part of a deep state partisan and politicized and so people rejected that. But here we have a whistleblower who is likely a career government official. I don't think he's at a very high level in the government. I think he simply said, "I can't take this happening and I'm going to stand up and do the right thing.". 

Harry Litman [00:11:34] And I do want to get back to him but of course you'd be most familiar. We don't know who he is. But you have the sense of the program. We know he, we believe he's an ex-CIA official who was detailed. You probably have a sort of feel from having worked with people like that in government. How would you sketch him if you were just describing based on your knowledge from government? 

Frank Figliuzzi [00:11:57] Well first I want to finish off the fact that this whistleblower has given us what may be the distinctive difference between this and other allegations which is the cover up. He gave us the fact that this transcript got moved where it shouldn't be and where it's hidden. Americans don't like a cover up. And I think that's the strongest thing he's provided. Now who is he? I've already been public on the fact that I do not agree with the New York Times putting out his his employer. Why? Because I know from my career in the FBI, that's a narrow group of people that are detailed to the agency. It's also been talked about what his country expertise is--

Harry Litman [00:12:33] And he's come back and there's a bounty already on him. Did you know this?

Frank Figliuzzi [00:12:37] Yes, I saw that, which which should lead to criminal investigation. But look a career person like this is simply all about the fact that the norm wasn't followed. The country he's all about understanding, his expertise, was handled very wrongly and he's not going to take it. And look the the FBI details people to the National Security Council. Most of the three letter agencies do. And it's an honor to be there. 

Harry Litman [00:13:03] And people probably know this but what does it mean to be detailed? 

Frank Figliuzzi [00:13:07] You are literally representing your agency inside the White House at the National Security Council. So you weigh in on how issues impact your agency. And it's a give and take and then you explain to the White House, sometimes the president himself, how a certain world event is going to play out through the eyes of your agency. 

Harry Litman [00:13:27] So you're a CIA official but you go you go to work for for a term in the White House. 

Frank Figliuzzi [00:13:32] Yeah,  usually it's somewhere between maybe two three four years and it's an astounding thing, the interesting thing is you don't have to be at senior executive level to be that detailee. You have to be just really good at teamwork and subject matter expertise. 

Harry Litman [00:13:47] All right. Let's talk a little bit about the nuts and bolts of the investigation that's going to ensue now. Frank talked about the dam breaking from so many events but Pelosi I think has made it fairly clear that the focus now is going to be on this episode and this episode only. Of course it's a sort of sprawling episode we have. A dozen people who heard this 7/25 call. We have anyone and everyone involved in the decision to hide the transcript in the classified system. Giuliani apparently took a team with him to the Ukraine. What's your sense? Natasha let me start with you of where the house starts and does it does it have simultaneous venues because there are five or six committees involved, and you know, how does it actually go about with a blueprint for a methodical investigation? 

Natash Bertrand [00:14:43] Yeah. So I don't think that the Democrats even know at this point. I don't think they have a clear strategy yet== 

Harry Litman [00:14:50] The Democrts, really? 

Natash Bertrand [00:14:51] Right. But what our reporting suggests is that they have already in mind what the Articles of Impeachment would be, which is roughly two which is this Ukraine incident and the second one would be the pattern of obstruction of justice and obstruction of Congress by the president by his aides by his pals you know like Corey Lewandowski for example. And in terms of how they would go about that they're already kind of in the middle of an impeachment inquiry. Nancy Pelosi just threw her support behind it last week but it really didn't change anything substantively. I think with this Ukraine issue though they're going to want to get the official, if there is one, transcript of this conversation-- 

Harry Litman [00:15:30] By the way is that going to come out -- Well, you say if there is one. There is one, right? We know that that's what was hidden in the classified system. We know there's a word for word transcript out there or is that in some doubt? 

Natash Bertrand [00:15:42] It's in some doubt the White House hasn't acknowledged yet that there is a word for word transcript but they have acknowledged that they put it into this codeword system. And I think the Democrats will also want to know how common that was. What other conversations may have been hidden from foreign policy officials in the White House from national security officials who need these readouts to do their job. And also whether the president has done this with any other foreign leader. Has he pressured other world leaders for political favors in the way that he pressured the Ukrainian president? So I do think that there may be a lot more wrapped into that first alleged Article of Impeachment that they're thinking about doing. But for now the House is just going to keep you know holding hearings with witnesses and with experts. 

Harry Litman [00:16:23] Ron, you know, having been on the Hill and chair of the Senate Judiciary Committee, you know, do you have any sense or even any counsel if you were asked for it of how you would do it? What sort of general order of investigation? Would it all be public hearings? Would somebody by staff only? What would be an investigative blueprint? 

Ron Klain [00:16:45] Well first I want to go back to one thing here which I think it's important that the Democrats not start to raise the bar on themselves here. And that's I think kind of a thing I've seen in the past 24 hours. I think was one of the big flaws in the Mueller investigation from the Hill side. People kept on saying, "Well boy, what you've seen so far is just the tip of the iceberg. I bet there's an iceberg here." And then when the iceberg comes out, "Boy it'll be something." And I saw several senators and congressmen start to say this yesterday, "Well if we've got this one, maybe there are five more maybe they're 10 more or maybe there's this many." You know, maybe this is it. Okay. And so I think you know I think that it's important that we not raise expectations that this smoking AK 47 is going to be followed by a smoking Howitzer and a smoking flamethrower. I think, you know, what is here is impeachable and what is here may be pretty much all that we wind up having. But having worked on the National Security Council for several months in the Obama administration, I'd be surprised if there is an actual transcript of this call. I think the mem-con that you're seeing here is it. 

Harry Litman [00:17:54] Frank is agreeing with that. That surprises me. Literally you think there's no word for word transcript anywhere. 

Frank Figliuzzi [00:17:58] So, just not  to interupt--

Harry Litman [00:18:01] I interupt around here. 

Frank Figliuzzi [00:18:01] --my understanding, most practices it's rare that they're going to record this type of conversation and I'm increasingly convinced that this president doesn't want any conversation of his recorded. 

Ron Klain [00:18:12] Oh, man. OK so back to you, Ron.  Now I do think it's interesting when you look at the mem-con that in the version that was released there ellipses in several critical places. 

Harry Litman [00:18:21] Yes. 

Ron Klain [00:18:21] And I don't know if that's meant to just record the president kind of trailing off with a lost train of thought or if something was omitted here. So I think a little bit of that. There's some interesting things there and there is obviously this question of who gave what orders to whom to move this mem-con up to the code word classification system. Which means just to be clear that even people in the White House who had a top secret security clearance couldn't see this memo. So you know really trying to bury the thing in the codeword system. So I think you know some investigation arond that is important. Some investigation around this whole Giuliani escapade in Ukraine is important. But I think you know it's important not to kind of create this expectation that we're going to find five more of these because I think that's kind of what happened a little bit with the Mueller thing and I think you don't want to repeat that mistake again. 

Harry Litman [00:19:19] Great point and of course you would be leading with your chin with the you know the people on the other side, who I want to get to in a minute, but I don't think they really know what their response is. But if you give it to them by by raising expectations that you don't meet then you're it's self-defeating. Sorry. Natasha? 

Natash Bertrand [00:19:36] No it's OK. I think the only thing that would lead us to believe that there might be five or six or however many more is that we confirmed with a former administration official who served in the Trump White House that this is actually pretty common, that they've been taking transcripts or mem-con,  or whatever it may be and putting them in this codeword system since 2017 after the Mexico and Australia transcripts leaked to lock down==. 

Harry Litman [00:20:04] The transcripts of his of his sort of disastrous conversations with those presidents? 

Natash Bertrand [00:20:08] Right exactly. They wanted to lock down these transcripts, they wanted to curtail leaks and particularly for the president's freewheeling off the cuff kind of crazy conversations that he has with these foreign leaders. They just didn't want him to get out. So I think that's also kind of fueling that the Democrats' calls for this and one other thing I think they want to obviously do is hear directly from the whistleblower. 

Harry Litman [00:20:33] Yeah. Oh and who's the "they' here in what Natasha just said? Frank you maybe have a sense. Would it be the White House counsel -- and that's Pat Cipollone by the way who is quite close to almost a sort of acolyte of Bill Barr -- but if this was a common practice who would have okayed the decision to secrete it in this way?

Frank Figliuzzi [00:20:59] Well we've already heard the White House say,  "This was lawyers. White House quote unquote lawyers did this." And they're trying to cloak themselves in kind of the the positivity of, "Hey this was a legal decision it wasn't the president's decision. Butmhere's a couple problems with that. First, that's out of the norm. I'm very much into the classification issues. I was an original classifying authority when I was assistant director at. FBI. 

Harry Litman [00:21:21] What's that mean? 

Frank Figliuzzi [00:21:22] It means I get to decide what level something's classified at or if it's classified or declassified at some point. And look it's really pretty simple. When you're at the top secret leve, and this is compartmented within top secret is what they're talking about. Top secret means if it's disclosed it would cause grave damage to national security. Well what is this phone conversation? This is the president congratulating the new president of Ukraine on his victory. That's not grave damage to national security. So when a lawyer steps in and says, "Hey hey  hey. That's got to go in this super secret compartment over here." You know there's a problem. Usually someone else is making the call on classification. And if I were making a call it might be at the confidential level. So the only argument you can make as to why this is so super secret is because the president has compromised himself in the conversation. 

Ron Klain [00:22:09] Yeah. But I think this unfortunately cuts both ways which is for the case for impeachment unfortunately. Because there's no question that there was an abuse of the classification system here. OK. But if the narrative becomes that basically Trump said stupid things in phone calls. Not illega,l things not unethical things but stupid things and then someone in the White House illegally decided let's start to bury these memos inside the codeword system. That person did something that's wrong, that person did something that certainly violates an executive order maybe it's even illegal. But it changes the whole narrative here a little bit in a way that in some ways helps Trump. Because the most powerful narrative is that Trump acted illegally on the phone call with the Ukrainian president. Someone knew it was a crime and covered up a crime by putting on the codeword system. If basically someone the White House said, "You know what, look, this guy is a moron. He keeps saying crazy things in these phone calls. Let's just take all the phone call memos and put them in the codeword system. And Trump didn't know that they were doing that you know in some ways if I were the Trump White House I'd be kind of embracing that narrative as my story here. That maybe some White House lawyer went overboard to try to prevent leaks. But like it wasn't a cover up of a crime. It was just an effort to prevent the president from embarrassment. 

Harry Litman [00:23:32] Yeah I mean so maybe so. And of course there's a big difference what Frank has outlined. It's very grave. But it's much more grave to go the other way, to take something that is classified and to actually -- so I wonder for the average American will this seem like not a big deal? Let me posit a kind of crazy possibility. Frank I want to ask you about this as well. We don't know who the whistleblower is. You know it seems, well we know maybe too much about the whistleblower. I'm a whistleblower lawyer. I a hundred percent agree with you that the Times was really wrong and made a misjudgment. If you read the complaint carefully it's like second hand and third hand and people have told me and it makes it sound like there's a lot of maybe watercooler chatter and on the one hand that raises the possibility of different people to investigate. But what's the possibility that there's ,you know Trump has treated the intelligence community like a doormat the entire time in really shocking ways. You know might this come to look like a sort of payback? A kind of you know the apparently neutral intelligence community person is actually striking back against the three years of abuse that the president of the United States has inflicted on the intelligence community. You're looking at me with surprise and alarm Frank but you see the actual argument, what it could be. Do you have any-- 

Frank Figliuzzi [00:25:01] Well I think clearly the White House is going to try to paint this whistleblower as someone who has an agenda. Someone who might not be thrilled with the fact that the Intelligence Committee is taking a beating and that he himself the whistleblower is not being consulted when it comes to Ukraine policy wasn't allowed to sit on the call perhaps that's all going to happen and starting to happen right now. But I think it's for me it's a reflection of the fact that you know people are saying, "Oh it's the guy wasn't even in the room." Well let's look at who was in the room and who Trump surrounds himself with right now and the fact that essentially anyone who's got the light bulb on in his or her head has been fired or walked out. So the only people privy now to these incredible conversations are people who are either scared out of their minds and/or loyalists to Trump. So who does it take to do the right thing? Unfortunately somebody who has to hear about it second hand and is truly a subject matter career expert. That's how I look at this is that gosh darn it nobody in the room stood up first and said and did the right thing. 

Natash Bertrand [00:26:00] I think the White House also wants to focus the narrative entirely on the whistleblower because that's very advantageous to them. When in fact we have the memo, we have the conversation in black and white that the president had with the Ukrainian president asking him to investigate Biden. Asking him to help investigate the, you know, election interference in 2016 Crowd Strike all of that. And we have you know the fact that the ambassador to Ukraine Marie Jovanovich was fired and fired early. Like she was supposed to leave this year but she was removed from her post because of all of this pressure that was being placed on the administration to get her out because she was seen as disloyal and not helping Trump investigate Biden. So we have all of this and we have officials who have already corroborated it to various outlets and I think that by focusing too much on the whistleblower and their identity and whether or not they had an ax to grind is completely distracting from, you know, the things that are already very much out in the open. 

Harry Litman [00:26:57] Yeah I'll add a personal note here. I'm a whistleblower lawyer and often I work at a fairly big firm Constantine Cannon. But the people on the other side are the sort of Kirkland and Ellis's of the world who are now completely populating the White House counsel's office. Page one of the playbook is always dirty up the relator. We're often looking to say, "Look the evidence is the evidence. It's not about the relator anymore. Let's take a quick break and hear some comments from other feds who are calling in. 

Matt Miller [00:27:27] This is Matt Miller. I think the most important question over the next few weeks is if there are other witnesses inside the government who are willing to come forward and corroborate the whistleblower's claims. If you read through his complaint he notes that there are multiple U.S. officials who have knowledge of the president ordering personally that the aid to Ukraine be withheld. That have knowledge of how the White House was taking records of his call and hiding it in a system that's not supposed to hold those records. That there were multiple witnesses all throughout the government that knew about what the president or Rudy Giuliani were trying to do. The House is obviously going to want to talk to those people once they learn their identity from the whistleblower himself. I assume that the president and the White House are going to try to block those subpoenas for their testimony the way they tried to block other subpoenas, the way they tried to block turning over other documents. And the key question to me is whether those people are willing to ignore directions from their supervisors and come forward and talk to the house and be as brave as this whistleblower was. If they're willing to, that's the kind of thing that could see this impeachment inquiry move fast without having to wait for months and months of delay in litigation in the courts. 

Laurie Levenson [00:28:30] Hi this is Laurie Levenson and I am just amazed by how the president continues to walk himself into trouble and how the people around him especially Bill bar allows that to happen. Now I don't know if this is going to end in a impeachment but I do know it's really serious. It's serious when you have a president who thinks that the rules don't apply to him. Clearly he doesn't. 

Barb McQuaid [00:28:57] This is Barb McQuaid. I think one of the things that it's important to think about with regard to President Trump's conduct toward Ukraine is the harm to the American people. This isn't just a technical violation of the law. This isn't just engaging in bribery or extortion. This is inflicting real harm on the United States national security. President Trump if the allegations are true withheld military aid from Ukraine. Ukraine has been invaded by Russia which still occupies part of its land. And the purpose of the aid was to assist Ukraine in fighting off Russian invaders. The aid was approved by Congress because Congress believed it was in the national security interest of the United States to empower Ukraine, to deter Russia from further military action. The credibility of the United States as a negotiating partner is eroded when we fail to fulfill our promises or when we condition promises on performing a personal favor for the president. By using military aid as leverage to help his own political campaign for his own personal benefit, President Trump has harmed our country. 

Harry Litman [00:30:18] Ron made this point about you know possibly the Dems leading with their chins by inflating expectations. It has been noteworthy to me in the last 48 hours that the Republicans seem very flat footed. You've had, several said, "Oh, I haven't read it yet," and sort of scurried down the hall. You had some people say they raise questions and the few things they've proffered haven't been I think very powerful. Is it an attack on the whistleblower or what line of defense would you predict the Republicans in fact will coalesce around? 

Ron Klain [00:30:58] Yea,  look I think the key thing they're going to coalesce around is that it was this much ado about nothing. I think their argument's going to be, "Look in the end, right, nothing really happened." They're going to try to decouple -- this is a critical thing for them --  decouple the delays in aid to Ukraine from this phone call from Trump, so on and so forth. I think that's really kind of the thing that's hanging out there over their heads that they're all nervous about. And I think they're gonna have trouble decoupling it because my guess is it's pretty coupled. But you know, if you asked me to guess their strategy would be to say that whatever was happening with the holding up on the aid, it had nothing to do with this. This was just Trump kind of bloviating on a call. Rudy Giuliani's kind of a joke. And kind of no harm no foul, nothing to see here folks, my guess will be their strategy. I do think they'll try to suggest that the whistleblower had some kind of political agenda or some kind of as you suggest some kind of deep state IC agenda or something like that and try to kind of center it on that. But I agree that so far you know other than kind of the most of a few of the standard things they say they have been relatively flat footed and relatively subdued in their defense of the president because I think they're relatively worried about what you know how this does link up to the Ukrainian aid questions. 

Harry Litman [00:32:18] Who's really running that process? Who's going to make that decision, do you think? 

Natash Bertrand [00:32:23] Well I think it all stems from Mitch. But I do think that privately what we're reporting is that they do see this as a bigger liability for the president than for example at the Mueller investigation. That because of this memo because of the implication that Trump essentially tried to blackmail the president, it's again not necessarily you know they don't necessarily feel perhaps that it's an abuse of power by Trump but they feel that the American people can understand this better than they could understand the Mueller probe and that in turn could reflect poorly on them. So internally the White House is also worrying about this. They're worrying about an impeachment inquiry which the Democrats some Democrats had said Trump really wants it. Trump really wants to be impeached because he feels it could help him in 2020. 

Harry Litman [00:33:12] You don't buy that, right? 

Natash Bertrand [00:33:13] That is completely not consistent with our reporting which is that Trump is terrified of being impeached. Because he knows that's going to be a big stain on his legacy and all he cares about really is how people perceive him. So what we're seeing in terms of just a first line of defense is that because Trump didn't specifically say to Zelinsky hey let's do a quid pro quo. They are saying that the aid wasn't tied to this request for a favor. Of course, Trump mentioned several times in the call that the United States supports Ukraine and that their economy will be really good as long as X Y Z but that is the initial defense anyway that we're seeing. 

Harry Litman [00:33:50] It's funny because the 12 people in the room, there's been some suggestion, "Oh we thought it would all be routine." But there was conduct leading up. Frank, is this your impression of somebody gave the order to withhold the nearly 400 million in advance of the July 25th call. Presumably that had to come from Trump. So he had the sort of leverage there. Very pointedly at the beginning. Is that your sense of things? 

Frank Figliuzzi [00:34:16] Yeah that's the reporting I've seen. That by the time the phone call came around it was well known that they put the skids on this money. I think Natasha is right on point with regards to the defense. We're already starting to see they're going to try to say everything but this is about a quid pro quo. They're going to point to the White House lawyers who moved this thing and Trump wouldn't know the database if it stared him in the face. So it's not his fault that it got moved. He says stupid things all the time and we tried to hide those things. And then they're going to they're going to try to bad mouth the whistleblower. We've seen that. Attack the messenger. But this is fraught with peril because the public's not stupid. They're going to see through some of this and they have to be very careful that the whistleblower doesn't become this very heroic figure that becomes a victim. Nor do they want to see that the White House lawyers are being thrown under the bus and Trump will do just about anything to protect his brand. So they're they're walking a fine line on how to handle this. 

Harry Litman [00:35:16] There's also unlike Mueller, there's a lot of witnesses within the administration and I don't think the White House is going to be able to afford to play the same stonewalling game. Nobody comes forward. Or let me ask you this. Who is going to have to lawyer up?

Natash Bertrand [00:35:32] Well I think Giuliani has already exposed himself to potential foreign lobbying violations. There are questions about whether or not he had registered as a foreign agent due to his work for Ukraine and not only Ukraine but but around the world and obviously once all of the spotlight lands on someone, their work comes back into play and can be reviewed by the Justice Department just like we saw with Paul Manafort. So I do think that he is facing some liability here. Just because you know he is freelancing and he seems to be doing it, someone has to be paying him, right? He can't be doing this work for free. So there is definitely a question of whether or not he's violating FARA here. 

Frank Figliuzzi [00:36:15] So I think you're right inside the Beltway law firms are going to make a bundle off of this because we could rattle off you know government official after government official that needs to seek counsel. But the people that we've already heard Trump go after as almost spies, the people who are privy to this call or transcript and provided that information to the whistleblower, he's going to come after them with scorched earth policy. 

Harry Litman [00:36:39] He TRUMP. 

Frank Figliuzzi [00:36:39] Yeah. And and they're going to be accused of everything from mishandling classified information to espionage. And I think they need to lawyer up right now. 

Ron Klain [00:36:49] I think Frank's onto a really interesting point here that deserves some focus which is the sad irony here is that the people who are probably going to need to lawyer up are the good guys not the bad guys. Because I agree 100 percent with Frank that what's going to happen here is that the people who in who were in the room or who you know listen to the call on side phones or whatever who are concerned about it and who reported that concern to other colleagues and it somehow got to the whistleblower. Those are the people who the administration is going to come after fiercely and ironically what's happened here, the thing we haven't talked about so far is the complete corruption of the Department of Justice in this incident, right? 

Harry Litman [00:37:35] Thats where I wanted to move to move to, yeah. 

Ron Klain [00:37:36] And so when you say, "Does Rudy Giuliani have to lawyer up?"The answer is who is going to come after hi?. The Department of Justice which is a coconspirator in this? The Attorney General who was wrapped up into this ridiculous scheme to try to prove something that's been disproven about the Bidens in Ukraine? The Attorney General who, the folks at the Justice Department who basically got this complaint and then told people not only that they basically kind of brushed it under the rug and then created ridiculous claims of privilege? So I mean again the irony is the people who DOJ should be investigating won't get investigated because DOJ is in on it and the people who are trying to do the right thing are going to be the targets of government action. 

Harry Litman [00:38:18] Let's focus for a second on Bill Barr. Does he have to recuse from the whole thing and will he recuse? I guess that's a quick two words or fewer answer. 

Frank Figliuzzi [00:38:27] Yeah I'll jump in. Look, he clearly should have recused himself. Here's why. We now know that earlier than any of us ever thought he was briefed on this by a senior DOJ official. So a DOJ official went over to the White House upon getting a call allegedly from the CIA General Counsel because allegedly the whistleblower tried to work this up first within his own chain of command. She tips off DOJ. DOJ goes to the White House, reads the transcript of the phone call then briefs Barr. Right? 

Harry Litman [00:38:54] It's DOJ who first gives the news to the White House is our current understanding? 

Frank Figliuzzi [00:38:59] No no, I don't believe they first --  I believe the CIA General Counsel got this and then gave it to the White House. 

Harry Litman [00:39:05] OK. 

Frank Figliuzzi [00:39:06] And then I don't see anything nefarious there. I'm not happy with it but I think she tried to say, "Hey what happened in this phone call --

Harry Litman [00:39:14] It is an unusual situation. 

Frank Figliuzzi [00:39:15] "-- because we're getting complaints about it." She then apparently reached out to DOJ as well. And then a senior DOJ official went over and read this phone call transcript and then allegedly Barr got briefed and at that point he would have known that he was invoked in the very phone call that's at the subject of this wrongdoing allegation. At that point he said -- he should have said,  "You know what? I'm in the middle of this thing. And even if it's not true, the appearance is terrible. I don't want have anything to do with deciding whether this has to go for the DNI to Congress." 

Harry Litman [00:39:50] Yeah I mean I'm not even sure it's an appearance issue as so often it is. He is a witness. There's just sort of no way--

Frank Figliuzzi [00:39:57] Well there's just one more thing that really disturbs me on Barr. I've been saying on the air on MSNBC that --

Harry Litman [00:40:03] Then you can say it here too. 

Frank Figliuzzi [00:40:04] Yeah. This whistleblower should have gone to the FBI right? Because there is a criminal violation here inherent in this phone call. Well guess what? It did go to the FBI and you know what? DOJ decided there's no crime. 

Harry Litman [00:40:17] This is my understanding. When you go to the DOJ, you refer according to a certain crime. I'm not sure that's right but the DOJ has a file there and it says campaign finance. And so for some reason even though it screams especially you know in America in 2019 where we just had Mueller Volume One that there's possible conspiracy and possible obstruction their only analysis is the campaign finance reform. But then that analysis seems so plainly botched. The argument as I understand it -- on the other hand I'm from DOJ and all the components agree. So I cannot posit-- it went around the horn. I can't posit a vast conspiracy here. Professional people said no crime because no thing of value. That makes no sense because obviously dirt on your opponent is a thing of value. But I gather the analysis was something like, "Well look at the transcript. They're just asking for help with an ongoing investigation, which of course didn't exist at the time. Is this completely, is this your understanding Natasha? Have you looked into this? 

Natash Bertrand [00:41:28] Yeah. So we were told that this did go to the FBI for investigation but that the FBI couldn't do anything and essentially had to refer it straight back to DOJ because of a policy in I guess the handbook that says that all campaign finance related charges and issues have to go back to DOJ criminal, the Public Corruption Section of DOJ criminal, so the FBI really did not get a chance to investigate this. They had to defer to the Justice Department and they feel now like they're kind of being thrown under the bus because--. 

Harry Litman [00:42:06] They the FBI or they the --

Natash Bertrand [00:42:07] They the FBI because people are wondering well why didn't the FBI take more initiative on this and dig more into this like bribery etc. Well it's because this was a very narrow thing that was referred to them. And ultimately you know the DOJ Criminal Division decided that based on this very narrow reading of what had happened, they couldn't do anything with it. But I also wonder, maybe this is something you guys could answe, what they could have done because of the OLC policy against indicting a president, a sitting president. So how far could they have taken it anyway? 

Harry Litman [00:42:40] Well at a minimum, even given that policy, they could have done a full bodied investigation and they could have gone to co-conspiracy. But Frank, I should know this obviously. But as I sit here I'm not sure I do. The referral would have been and would it be the FBI that says the referral is for you know 18 USC they refer according to a particular statute and DOJ doesn't normally expand or how to how does it work. Do you know? 

Frank Figliuzzi [00:43:07] Well I think this went the other way. I think this bounced to the FBI really from DOJ under the White House and Natasha weigh in if that's not right. They would, it's very unlikely they would have just said, "Hey we saw this on TV and we'd like to we'd like an opinion on  that."

Natash Bertrand [00:43:21] It was referred to the FBI. 

Harry Litman [00:43:23] By? 

Natash Bertrand [00:43:24] The Justice Department. 

Frank Figliuzzi [00:43:25] That's right, now--. 

Harry Litman [00:43:27] And according to a specific singular charge? 

Frank Figliuzzi [00:43:30] Well here's -- Natasha brought up this very narrow referral. Because that's the problem with this. If you just have the transcript of the call, right? And DOJ is saying," Hey look at this for a campaign violation." You know, the FBI is going to go, "Whoa wait a minute. There's a whole lot more we could do here than just just this transcript." Because--. 

Harry Litman [00:43:51] They would  pushback, right?. 

Frank Figliuzzi [00:43:52] Well there's a huge investigation that could be conducted. We want to interview witnesses. We want to go. We want to go to classified intercepts and see how the Ukrainians reacted to this and see if they felt pressured to it. We want it to see what other phone calls the president had off line. What Rudy did . Who said what to whom. And I'm sure DOJ went, "You know what? We've looked at this and we don't want to prosecute this". 

Harry Litman [00:44:15] Really. 

Frank Figliuzzi [00:44:16] Oh yeah. 

Harry Litman [00:44:16] OK. And when you say you're sure this the person who issued this would be what the Attorney General for criminal, right? 

Frank Figliuzzi [00:44:23] Yep, yep. 

Harry Litman [00:44:23] OK. 

Harry Litman [00:44:25] Just to build on that one. I think Frank's point and Natasha's point that whatever kind of review or investigation went on here was very very narrow and very very cabined -- 

Harry Litman [00:44:36] And you've been at the department you think it was cabined a kind of tendentious, not straight up way. 

Ron Klain [00:44:42] Yeah I mean I think that you wouldn't look at this as a potential Hobbs Act case, potential bribery case,  potential conspiracy case. I think that's one serious problem. I think though I have to point out because this is my hobbyhorse that part of the blame though for this outcome goes to Robert Mueller. And the greatest mistake he made which was the statute in question 52 USC 30121, which makes it illegal to solicit a thing of value right from a foreign person was the statute that Mueller blinked on on the Trump Tower meeting and Don junior soliciting help from the Russians in that case. In Mueller's report he basically is kind of the first person really to give some credence to this idea that opposition research is not a thing of value and then suggested even there is a first amendment right to like have these conversations. And so you know I think that was the wrong decision that Mueller made not to bring this case against Don Junior for soliciting something of value in that Trump Tower meeting. And I think a little bit of that is present here too. 

Frank Figliuzzi [00:45:48] Well I think Ron's actually right with regard to Title 52. But I see Title 18 playing far more prominently here because unlike the Trump Tower meeting we actually have a public official in this picture. It's not Don Junior. It's it's on senior and so Title 18 garden variety public corruption statutes say if a public official is soliciting seeking requesting a thing of value in return for an official act. And that's what we have here. And I can tell you if this walked into my office as head of an FBI field office and it was the county commissioner and I had the same conversation in front of me. I'm opening that case. 

Harry Litman [00:46:22] What about Don Sr. Here. I mean look we've been circling around with tactics and investigations and and political dynamic but we have this core fact. A kind of shocking in some ways vintage Trump move. And coming in the wake of having you know just skated clear of liability under the Mueller Report for similar shenanigans. Is this in fact like a crystalline moment historically of abuse of power by a president of the United States.     

Natash Bertrand [00:47:03] I think so because this isn't just candidate Trump asking for the Russians to interfere in the election and welcoming it and encouraging them to hack Hillary Clinton's email server. This is President Trump sitting in the Oval Office knowing the amount of leverage that the United States has over smaller countries over really any of our allies especially Ukraine which is at the center of a battle against Russian aggression. 

Harry Litman [00:47:29] And we care about Ukraine there. I mean he's withholding things that our national security depends on their getting. 

Natash Bertrand [00:47:35] Right. And the Ukrainians understand that when the president of the United States asks for something it's not a request. It's really a demand. I mean this is especially when when you take into consideration the fact that this is a very new president. This is someone with no political experience. He was a comedian before he was elected president back in April. So this is obviously, and I think the memo shows this, a very inexperienced person dealing with someone who is a known bully and someone who is willing to use all of the leverage and all of the power. I mean even if the Justice Department to further his own political ambitions. 

Frank Figliuzzi [00:48:14] Yeah. Yeah. This is bad. Look I look at things perhaps too much through the lens of someone who spent most of his career trying to counter the efforts of foreign governments who try to hurt us and trying to catch Americans who are working with foreign governments to undermine our democracy. What I see in this phone call is an American who has undermined our way of government and disgraced the office of the president by seeking the help of a foreign power to get reelected. 

Ron Klain [00:48:44] I think one reason why this has so caught fire here is you know for two years we used to jokingly say that the Russia investigation was stupid Watergate. You know this feels like stupid Godfather. You know that that basically you know the president really is like sounds like Marlon Brando on this phone call. You know that, "Oh you know we've been very good to you. I do need a favor though." I mean I think that is the sentence that is going to be chiseled over the Donald Trump impeachment monument is, "I do need a favor though.". 

Harry Litman [00:49:19] Someday I may call for you for a service--. 

Ron Klain [00:49:20] Someday I will call you and I will need something. And it turns out someday was that day and so you know I think that part of it the part it just feels very much like an extortion attempt very much like you know. You know as Frank suggested like a city councilman shaking down you know somebody for a bribe or whatever is the part of it that really makes this stink. 

Harry Litman [00:49:46] Yeah. All right. Let's just close with a couple thoughts about this. Do we have in 2020 as embittered and polarized a country as ever or is there some sense of like our national nightmare is over and we put this behind us and end the country returns to some sort of sanit? 

Natash Bertrand [00:50:11] I think it's got to be uglier than ever before because we not only have an election but we have an impeachment inquiry and the president is going to I think be more combative and erratic as ever. And on top of that we have the potential further interference by another foreign government combined with the Russians who are constantly trying to interfere with our elections and democracy as it is. So I think this is going to be probably the ugliest election we've ever seen. 

Harry Litman [00:50:38] And aftermath it sounds like. You don't think it's a peaceful --

Natash Bertrand [00:50:41] I mean I'm not even convinced that if Trump is defeated he'll leave office. 

Harry Litman [00:50:45] Honest to God. Can you imagine? Frank? 

Frank Figliuzzi [00:50:47] Yeah it's gonna get really bad and ugly and Natasha's raised the specter which we could talk another entire show about of how the rest of the world's gonna react to this from a foreign intelligence perspective. Rest assured the Russians the Chinese the Iranians the North Koreans are all trying to figure out how they can wedge their way into this mess and pressure Ukraine to come out and say they were pressured or you know Russia's going to try to exploit this. So look Trump is someone who has issues. He's going to lash out. He's within 24 hours of Maguire testifying we heard him imply that people who merely cooperated with the whistleblower were traders and should be treated as if treasonous. Which of course means they should be put to death. We've heard him say he was angry that anyone cooperated with interviews by the Inspector General for DNI. So this is going to get really really bad. He's going to implode and I don't know when or where it's going to happen or what it's going to look like but it's going to happen. 

Harry Litman [00:51:44] And by the way the Zelinsky conversation itself was more evidence that the Mueller Report had just come out and this part of his agenda there was to actually demean, this was part of his campaign against Muelle who I think in that conversation apropos of nothing he called incompetent. Ron Klain, last words on this sober topic?

Ron Klain [00:52:03] Well look I think it's a little bit TBD which is I think Trump will certainly do everything he can to retain power. He will divide. He will hate. He will hate tweet. He will rally his supporters. But I mean I think the question is and I don't want to be overly optimistic about this is will someone step up one of the Republicans while a Republican senator or Republican governor and you know will this finally be the final straw. And will someone say, Hey enough is enough. I'm not going along with this I'm not going to be part of this." And if so you'll possibly open the door towards what life in America post Trump could be like. We keep hoping for that person to step up. It hasn't happened so far. You know I don't want to be either naive or Pollyannaish about this but there's still I think remains some hope that this will be the straw that finally pushes someone over the edge and finally begins this process of there being a two party commitment to the rule of law, two party commitment to restoring some decency and honor here. Haven't seen it yet but you know we're still really as crazy as it's been the past two weeks are really still in the first or second ending of this baseball game. 

Harry Litman [00:53:20] And there's an end. 

Harry Litman [00:53:21] It's time for our final segment Five Words or Fewer where we take a question from a listener and each of the Feds has to answer in five words or fewer. Our question today comes from Nolan Norris who asks, "Can the Atorney General be impeached?" Ron Klain?

Ron Klain [00:53:39] Yes. One word. 

Harry Litman [00:53:43] Frank? 

Frank Figliuzzi [00:53:44] Yes. But he'll resign first. 

Natash Bertrand [00:53:47] Yes. I agree with Frank. 

Harry Litman [00:53:50] Yes though usually resigns comma fired. 

Harry Litman [00:53:56] Thank you very much to Frank, Natasha, and Ron. And thank you very much listeners for tuning in to this special edition of Talking Feds. If you like what you've heard please tell a friend to subscribe to us on Apple podcasts or wherever they get their podcasts and please take a moment to rate and review this podcast. You can follow us on Twitter at Talking Fed's pod to find out about future episodes and other Feds related content. And you can also check us out on the web at talking Feds dot com where we have full episode transcripts. Submit your questions to questions at Talking Feds dot com, whether it's for Five Words or Fewer or general questions about the inner workings of the legal system for our sidebar segments. 

Harry Litman [00:54:44] Thanks very much for tuning in. And don't worry as long as you need answers the Feds will keep talking. Talking Feds is produced by Jennie Josephson, Dave Moldovan, Anthony Lemos, and Rebecca Lopatin. David Lieberman is our contributing writer. Production assistance by Sarah Philipoom. Research by Sam Trachtenberg. Additional recording by Courtney Columbus and transcripts by Matthew Flanagan. Special thanks to Congressman Ted Lieu and huge thanks to Evan Smith, Jessica Weaver, Michelle Aldridge, Claire Ruwwe and the rest of the team in the library at the Texas Tribune Festival and the entire crew at the Texas Tribune Festival for all of their hard work and kindness to us. It's really been a great honor to be invited here and even more fun to be here. Thanks also to the Charles Moore Foundation and Kevin Keim. As always thanks to the incredible Philip Glass who graciously lets us use his music. Talking Feds is a production of Dalito LLC. I'm Harry Litman. See you next time.