Game of Trump: A Song of Vice & Ire

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Harry Litman [00:00:07] Welcome back to Talking Feds, a prosecutor’s roundtable that brings together prominent former Department of Justice officials for a dynamic discussion of the most important legal topics of the day.

Harry Litman [00:00:20] I'm Harry Litman. I'm a former United States Attorney and Deputy Assistant Attorney General and now a Washington Post columnist. Today, we're going to focus on two important topics from just the last couple days, and their implications for the broader Mueller probe and congressional investigation of the President and President's Campaign in 2016.

Harry Litman [00:00:45] We've got Feds in New York and Washington D.C. with us to talk about it. We're really pleased to welcome Mary McCord to Talking Feds for the first time. Mary is now a visiting Professor of Law and a Senior Litigator at Georgetown University Law Center's Institute for Constitutional Advocacy and Protection, which seems like a very important thing to be teaching law students right now.

Harry Litman [00:01:12] But Mary was the Acting Assistant Attorney General for National Security at the Department of Justice the highest official for national security from 2016 to 2017, and she also served as the Principal Deputy Assistant Attorney General for the National Security Division from 2014 to 2016. Before that she spent nearly 20 years in the U.S. Attorney's Office for the District of Columbia. Hi Mary, and thanks for joining us.

Mary McCord [00:01:43] Hi Harry. I'm pleased to be here.

Harry Litman [00:01:45] We are also joined, for the first time, by Glenn Kirschner. He served, did Glenn in that office, for 24 years rising to the position of Chief of the Homicide Section, where I believe one Robert Mueller, after being the Assistant Attorney General for Criminal, returned to be a line prosecutor. Glenn served more than six years on active duty as an Army Judges Advocate General prosecutor, trying court-martial cases and handling criminal appeals, including espionage and death penalty cases. And Glenn, I assume you and Mary must have overlapped and you worked together during your time there?

Glenn Kirschner [00:02:29] We did Harry, and thanks for having me on. Yeah. Mary and I were actually on the same felony trial team in the mid-90s, and I can tell you, because I got to watch her try cases she was something of a force of nature when she was in there trying cases. She was not to be messed with.

Harry Litman [00:02:47] So her her talents then got what were not put to their greatest use when she became a big bureaucrat in the big building, is that what...

Glenn Kirschner [00:02:54] Yeah. It's no surprise she got tapped for bigger and better things and I just continued to sort of toil in anonymity at the D.C. US Attorney's office.

Harry Litman [00:03:01] There we go. Nobody's ever heard of Glenn's Kirschner.

Mary McCord [00:03:04] You're too gracious.

Harry Litman [00:03:06] OK. And finally we're delighted to welcome back Mimi Rocah. Mimi is one of the sort of charter Talking Feds, and she is currently Pace Law's Distinguished Fellow in Criminal Justice and a Legal Analyst for MSNBC and NBC News, as is Glenn. Mimi was an Assistant United States Attorney in the Southern District of New York from February 2001 until October 2017.

Harry Litman [00:03:35] So look, let's dive in. We had a real flexing of muscles by a Federal District Court Judge Emmet Sullivan in the Michael Flynn case. He has been the judge presiding over that case and recall that he previously postponed sentencing and was a little tough on Flynn saying, "You better be able to document in your full cooperation." Now, most recently he has told the Special Counsel's office that they need to make a public filing of some of the evidence that concerns Flynn and his cooperation. So it seems to me, as you pull on this thread, it implicates quite a number of ongoing themes. But, let's just start with what what exactly is the information that is supposed to be made public by the 31st? And how do we expect it to be broader or different from the material that's in the Mueller report that describes it? Mimi, do you have a sense of that?

Mimi Rocah [00:04:48] So, I think that what the judge ordered to be made public is, first of all, the actual transcript of a voicemail that was left by what's referred to, what he referred to as Trump's personal lawyer. I think there's a lot of at least speculation that that's John Dowd, who was one of his lawyers at the time. And also the actual voicemail recording that Dowd left for Flynn's lawyer, one of Flynn's lawyers. And the cooperation letter, so this stuff was originally referred to by the Special Counsel's office in their 5-K letter that they wrote for Flynn and in the supplement that they filed recently, where they said that Flynn had, had basically provided this voicemail and that he had been contacted by... I think the phrasing is "people close to or around the administration," so I'm pointing this out for a reason in the Mueller Report, it specifies that, that Mueller is talking about a voicemail from one of Trump's attorneys to one of Flynn's attorneys, that can be described as obstructive for, for shorthand purposes for a second. The moment...

Harry Litman [00:06:00] Yeah, it's sort of, it's sort of a pardon dangling, arguably, right?

Mimi Rocah [00:06:05] It's a stay strong, you know, stay strong.

Harry Litman [00:06:07] You know. We love you, we care about you and there may be an implicit message of stay clammed up, yes?

Mimi Rocah [00:06:12] Yeah it's a stay strong message. It's you know the President, you know, likes you and you know we want to keep it that way kind of thing. And then, And then there's a subsequent voicemail where, or conversation I guess, where he says where Trump's lawyer apparently says you know, gets angry at the fact that Flynn's lawyer says, "I can't share information with you anymore. We're not, you know, he's he's..." I don't if he uses the word cooperating, he says, "we're not bound by this joint defense agreement anymore," which is a sure sign that someone is cooperating.

Harry Litman [00:06:44] What's a 5-K letter?

Mimi Rocah [00:06:45] A letter supporting basically his cooperation to the judge saying he should get a reduction in his sentence for all of his cooperation. And so in the latest iteration of that, he refers to efforts to contact Flynn from people close to the administration. He doesn't specify the lawyer. So it sounds like, while in the Mueller Report, they talk about the lawyer and the voicemail, there may be other contacts, you know, from other people, who is close to the administration? Is that the lawyer? Why didn't you just say that here? So I think we're dealing with a couple of different facts and there may have been new facts to have come out just by virtue of the way that was phrased in that letter. But, I think we don't we don't know yet.

Harry Litman [00:07:28] Yeah. And let's stop and think about that for a second. This is, remember, information he gave that the Special Counsel is touting to the judges as cooperation, he was cooperating in their investigation. Well what could they be investigating if cooperation here means the administration was reaching out to me saying the president loved you know still loves you and stay strong. Glenn doesn't that have to be, mean that, that, that, what they what, that information was about was a potential obstruction charge against the President or people around him. What else could it, could it be?

Glenn Kirschner [00:08:07] Yeah this part of it sure seems like they're looking into potential obstruction by the people that they, hey don't name but they refer to in this most recent Flynn filing. And I'll tell you Harry, my favorite part, I've got the letter in front of me, is they not only say that people close to or connected to the administration, that is the President, but also people connected to the Congress. I think that was a new reference, and I'm going to, I'm going to tell you that's my favorite part. Because now, I think that opens up a whole other potential avenue: Well, who in Congress might have been involved in trying to persuade Flynn, as Mimi said, to stay strong don't flip, don't go on the President, you know that, I think probably had some Congresspeople tossing and turning trying to sleep recently after reading that, if they know that they were the people involved in trying to, perhaps, keep Flynn from turning against the President.

Harry Litman [00:09:06] Right. And I mean what a tangled web that could be because they're actually bringing a message from Trump. So presumably there's some kind of interaction, you know, maybe from the Trump lawyer level to fill in the blank, Devon Nunes or whoever, and it seems to be, you know, a whole kind of potential conspiracy on obstruction. Well, what I mean, what about the fact that you know Sullivan is coming in and saying, "I want this made public." But I mean that suggests a whole nother avenue. There's this tussle between DOJ and Congress, but at least to the extent it can be served up in a case where there's jurisdiction you know it may be both the press and the courts will have something to say about what how much of the Mueller Report will be made public.

Glenn Kirschner [00:09:56] Yeah. Can I just add, um, it's interesting Harry that we have a judge who's ordering things to be made public. Now, if it's in response to litigation by the media on First Amendment grounds, I get that. And Mimi filled in one of those blanks for me. But here's the other thing I'll say about Judge Sullivan. I mean I was in the courtroom when he really took Flynn to task at that attempted sentencing hearing back in December. And I've litigated in front of Sullivan and he marches...

Harry Litman [00:10:23] Yeah, he's a tough guy, right.

Glenn Kirschner [00:10:24] He marches to the beat of his own drum. And when he beats that drum it's all about truth and transparency. And God forbid, if somebody is engaged in governmental misconduct or shenanigans, he will tear you up. And I think it's those instincts that frankly make him a terrific judge, even if he's or unorthodox at times ordering the government to do things that judges ordinarily don't order the government to do like, "Hey make these things public." You know, judges don't have a discovery right to evidence that the government has that it hasn't offered.

Harry Litman [00:10:59] And you know that's been a kind of a missing element in the whole drama. Think back to Watergate and the role played by Judge Sirica, likely the same point as Glenn's making now, perhaps pushing the line of appropriate judicial behavior in the run of cases, but recognizing this wasn't the run of cases. You know, Sirica had a lot to do with what happened in Watergate and an individual judge like Sullivan perhaps could do the same. Of course there is the possibility of an appeal. My sense is that that won't happen here because it would be the Special Counsel that would have to bring the appeal. Does that make sense to you, Mary, that there won't be an appeal or is there a distinct possibility that the Attorney General orders the Special Counsel to bring an appeal? What are the, what's the likelihood that this ends with Sullivan?

Mary McCord [00:11:52] I think it's it's likely to end with Sullivan, although certainly the Attorney General  could order the Special Counsel to, to appeal this. I think what Sullivan was getting at, and I agree with what Glenn said, that Sullivan thinks, "Well look a lot of these documents were filed and provided to me before the Mueller report was made public. Now, it's been made public there is a lot in the report about not only the call that, the calls that Michael Flynn had with Ambassador Kislyak but also about the pressure put on to him and the calls made to him from people associated with the administration. And as Glenn just pointed out also apparently with Congress.

Harry Litman [00:12:30] So by the way, we're talking about the Special Counsel and they're the litigating entity here. Everyone knows that Bob Mueller's work is done. The Attorney General has said that we are finished with this investigation. And yet obviously the Special Counsel lives on. It was the Special Counsel that was litigating before Judge Sullivan and will continue to, for instance, on the Flynn case that could be kind of confusing. What's the status, Glenn, if you know and to what extent does the Special Counsel, even without Mueller, remain a litigating entity within the Department of Justice and a continuing force on the, on the scene.

Glenn Kirschner [00:13:11] That's a great question Harry, and I don't think we precisely know exactly what Mueller and his team's role is at this moment. Now. Obviously they're still involved in the Flynn litigation. So, there is still a component of the Special Counsel team that is up and running as a sort of prosecutorial organization, but you know, lots of people though have been asking the question, I think you know, we've just been discussing how does the team react to Sullivan directing that certain things be made public? Now, I fear that Barr may start to put his thumb on the scales of how these questions get answered not, I'm not so concerned about the Flynn litigation, because that case is almost at an end but you know, we have to look at those 14 cases and matters that were referred to among other offices, Mimi's old office, the Southern District of New York and other U.S. Attorneys offices. And I think people are rightly concerned about how Barr might oversee them if those are legitimate referrals, and I know they were because Bob Mueller directed them to be referred. I think two cases and 12 investigations, as listed in Appendix D of the Mueller Report. Well, you know once the Special Counsel's office work is at an end, that's going to be you, know handled by various U.S. Attorney's offices to which they're assigned. So, is Barr going to let those things run their course unimpeded or look we've already seen him say and do things that make him seem more like a P.R. Flack for the President and less like a true Attorney General. How is he going to handle those ongoing matters. I think that's a real open question.

Harry Litman [00:14:55] Yeah, I mean especially you know under the regs he said if he countermands the Special Counsel he's got to report it to Congress etc. and he never did it, but if there is no, if in his view the Special Counsel is no more, at what point does the Special Counsel step away?

Mary McCord [00:15:11] Yeah, I think that's happening right now. We saw that in the Flynn case. There is a docket entry in the case from April where a D.C. Assistant United States Attorney Debra Curtis, entered her appearance in that case which suggests that you know in this case and probably some of the others that are kind of being farmed out to the U.S. Attorney's offices or were already brought in different U.S. District Courts that are handled by other U.S. Attorneys offices, that we'll probably start seeing AUSAs that work in those offices entering their appearances in those cases. And I'll also note with respect to Flynn, that Brandon Van Grech who had been assigned on detail to the Special Counsel's office and had worked the Flynn case throughout his detail is now back at Main Justice in The National Security Division. But that certainly means he's still available and I would expect him to carry this case through and work with Deb Curtis to carry this through to the end. So some of the Special Counsel Detailees have gone back into other positions at the Department of Justice, where they're certainly available to continue in those cases.

Harry Litman [00:16:16] That's interesting. And to Glenn's point it sort of means that the actual to the extent there's any hand-to-hand combat involving those cases, and Main Justice and the Attorney General in particular it will go through the individual U.S. Attorney. You know, I've been in this position there are stronger and weaker U.S. Attorneys and ones that can be immediately rolled and then there's you know the Southern District of New York. It might, it might really depend on that kind of dynamic.

Harry Litman [00:16:47] OK. One other thing that struck me about the Flynn evidence, we know that, that the Attorney General gets the report on a Thursday, say, and by Sunday is ready to pronounce and does pronounce quite clearly contrary to Mueller, that there is no provable obstruction case here. But, presumably I mean it's remarkable that there'd be time to go through the 448-page report, but now we're talking about additional evidence not in the report that as evidence does give us a more, paints a more vivid picture of certain things and maybe helps explain why Mueller saw it one way, and Barr, and well, all but also Rosenstein saw it the other. Does this kind of evidence indicate an overall sort of flaw in what has already seemed a very questionable kind of end game from the Attorney General and Deputy Attorney General in reaching their conclusion?

Mimi Rocah [00:17:51] You don't know. You know, and a lot of people were critical of Barr when he admitted that he hadn't, you know, gone through all of the evidence. I think there's different answers to that, but I think the short answer is: even just what's in the report about, what the conduct towards Flynn by Trump and his lawyers, is enough that it merited certainly more than the treatment Barr gave it of "no obstruction." Now, I will say so, when this news came out, that you know there was breaking news and people on Twitter saying, "Wow you know Trump tried through his attorneys tried to get Flynn not to cooperate." I mean that that was sort of the headline and then it took a couple of hours for people say, "Wait a minute, wait a minute, we knew this already. It's in the report. It's on page 129 of Volume 2." And you can see if you go look at it now I mean there it is. There is the quote from that voicemail. So yes, as I said earlier in the beginning of this podcast to your first question, there were some new things particularly as Glenn pointed out the part about Congress, there's perhaps new people implicated in the information that came out most recently from Mueller. But the gist of it, the idea that people were trying to stop Flynn from cooperating with this, you know hang tough kind of talk, was, uh, is in the report. And I think what this highlights is that this report is so chock full of corrupt conduct, and conduct that in layman's terms is obstructionist, right? And that in terms of high crimes and misdemeanors is obstructionist that even if not enough for Mueller to charge, and here Mueller said with respect to Flynn by the way, he couldn't get to a lot of the evidence that he needed for the intent element, because it involved attorneys and he wasn't going to try and pierce that veil, which is a cautious prosecutor for you, other prosecutors might have. But that's the tact he took. So, so Flynn isn't even the best example for a criminal prosecution, because of the attorney client privilege potential issues. But the conduct when you just look at it. You know, and it's highlighted in the way that Mueller's most recent filing did and the judge's order did, makes people go: Whoa! And it reminds you how much is in this report and how much we've lost sight of it. That you know, I think because of all of the legal battles that are going on. The drama over who is going to testify and when and who's resisting what. We forget about, or I don't if we forget it, but it's harder to keep people's attention on the actual conduct that is in this report that is so I'm going to use the word corrupt for shorthand, because I don't want to say criminal because it almost doesn't matter here in what we're talking about, just really bad conduct. And when you focus on any one incident a lot of people who sort of have brushed this off or you know think there's nothing new, I think are pretty stunned.

Glenn Kirschner [00:20:51] And Harry can I give Mimi the hallelujah chorus, because that's what we need to go back to as she said, the report. It's like a high crimes and misdemeanors jamboree when you read Volume 2. I mean it just it drives me, as a former career prosecutor, crazy. Mimi and I could walk into court and prove multiple counts of obstruction of justice against the President now. OLC says, "No, you can't because we're not going to let you." It's an ill of ill advised policy. And I hope we see some reforms moving forward. But there's so much criminal conduct, there's so much constitutional misconduct that I think satisfies the high crimes and misdemeanors burden. But we're just not paying attention to it because Bill Barr stepped out on Day One and said: "Nothing to see here, folks. I declare he's innocent and exonerated," and reality has forever been trying to play catch up. I mean for gosh sakes, he told Don McGahn, "Fire Special Counsel." And when McGahn said, "I'm not doing it." He said Then create a false document saying I never told you to do it." Really? Really?!

Harry Litman [00:22:01] Yeah. Who who would not prosecute that case? Well. So first Mary do you basically agree and if you do, do you have, you know, some intuition about why it is that it, you know the conduct that strikes former prosecutors as so clearly chargeable seems to leave at least broad portions of the public, leave alone the Republican Congress, kind of almost indifferent?

Mary McCord [00:22:32] Well I'd agree with everything that Mimi and Glenn have said. I mean I think you know reading through and in fact, I signed on to the letter that so many prosecutors around the country signed on to saying that you know, "Were this not the President of the United States and under the OLC memo not indictable while he's sitting..." Granted, no court has said that that's just an OLC memo... "That, that there would be multiple chargeable offenses," I agree with that entirely. I think that Bill Barr set out to create a narrative on his, you know, very quick four-page letter to Congress that he sent just days, just really frankly within almost hours of receiving the report, was very deliberately intended to make sure that many people in fact people who you know aren't inside the Beltway like so many of us, who are you know steeped in this stuff, who's read about it all day long, every day, that those people would just take his word for it and be done with it and move on with their lives. And not, and not pay attention.

Harry Litman [00:23:34] And you think that sort of work basically?

Mary McCord [00:23:35] I think that for a large group in the country that has worked. If you talk to people in other parts of the country right now I think a lot of those folks are saying: "We're worried about the economy. We're worried about this or that." And they're not, they're not focused on this and I think that was exactly what Barr intended. I also think it's it's even though he said then and he said in his press conference three or four weeks later, again I think trying to create the narrative before he actually produced the report to the public, I think he, he even though he said that he did this, he reached this conclusion based on the report and the evidence and consultation with Rod Rosenstein, I think there -- and not on his previously unsolicited 19-page you know opinion letter that he had sent to Rod the previous year. It's hard to believe that he wasn't influenced by his own view, as a legal matter, that the theories of prosecution here were not sound. And that's the statutory and constitutional issues that were addressed by the Mueller Report at the end of the Report really rebutting point by point almost every argument that Bill Barr had made when he before he was the Attorney General in his unsolicited letter urging Rod Rosenstein and others to reject any theories of obstruction along the lines as the very theories that we now see in the Muller report. So, it's hard to believe that he was not influenced by his own legal opinion that those theories were not sound, in reaching his conclusion, there was nothing here that would rise to the level of a criminal offense.

Mimi Rocah [00:25:16] In your question to Mary, the premise you stated was, that you know that Americans are sort of shrugging their shoulders at this. And...

Harry Litman [00:25:25] Yeah, what do you think?

Mimi Rocah [00:25:26] I mean that's the premise I want to push back on.

Harry Litman [00:25:28] Please, yeah. [CROSS TALK]

Mimi Rocah [00:25:28] I guess what I'm trying to say is most Americans don't know what the conduct is. That if they're shrugging their shoulders it's because they're, they're not, it's not being put in front of them in a digestible way. I think when you isolate it for example this Flynn conduct, I think people do have quite a reaction to that. I think when people actually digest the Report they actually are shocked at it. So, so I think that's part of the problem here is everyone keeps waiting for public outrage before impeachment proceedings begin and yet, I don't think that outrage is ever going to come, unless people actually get to digest this and it may be that the only way that's going to ever happen is with hearings with live testimony.

Harry Litman [00:26:12] Yeah I mean so I think this is an excellent point I was going to basically echo what you had said before. I think it partly explains what seems like a kind of quixotic move of the Democrats, right now reading the entire Report, or the tussle over witnesses, there's just no substitute for having as, as we learned in Watergate having someone show up under the lights and say things and people actually focus because it seems a ambitious undertaking to actually have what you know individual reading groups take, take the Mueller Report in chapters. But I wanted to second what you're saying and not simply for casual observers. I felt the same way in general the report came out. I gave it a very quick read and I was left with a general sense of some very bad conduct. But each time I zeroed in on specific instances and thought about it as a Prosecutor, is their case here? There? In each of the 10 ones, just like what you're talking about with Flynn, it was like: "Of course!" And especially the points that Glenn just made the the points involving McGahn seem, seemed so straightforward and, and, but I think even we as prosecutors and, or as close observers are struck when you really bear down. There's a sense a 448-page report comes out and there, it's got a general bludgeoning effect, and then you take a step back and a deep breath and bear down on individual incidents and the gravity and criminality of the behavior comes much, much clearer.

Harry Litman [00:27:56] All right. Well, among other things we're going to see specifically how this plays out by May 31st, when the material is supposed to be made public, unless Special Counsel tries to appeal, which I think we all agree is unlikely.

Harry Litman [00:28:16] Now it's time to take a moment to explain some of the terms and relationships that you hear about in this podcast and on cable TV, in a segment we call Sidebar. Today cartoonist, and podcast pioneer Scott Johnson will explain Impeachable Offenses. Scott is basically a living legend in the podcast world. He also is a comic illustrator and creator of the first order, as those of you know who have seen his panels about gaming, Star Wars, family and all the ways we muddle through life online and off.

Harry Litman [00:28:58] But he published his first podcast in 2003, and today, he co-hosts many podcasts including the award winning gaming podcast, "The Instance," The Morning Stream," and "Current Geek." So here's Scott on what constitutes an Impeachable Offense.

Scott Johnson [00:29:18] What is an impeachable offense? The Constitution says that, "The President, Vice President, and all Civil Officers of the United States shall be removed from office on impeachment for, and Conviction of Treason, Bribery or other High Crimes and Misdemeanors." Treason and Bribery are pretty clear. But what does "other high crimes and misdemeanors" mean? Looking to older English law, the term "high crimes" refers to crimes against the state, as opposed to fellow citizens. So "high crimes" might be those like obstruction of justice that strike at the heart of the government. Alexander Hamilton gave a slightly different sense in the Federalist Papers. Describing Impeachable Offenses as "Political crimes for those that involve a violation of public trust." So for example, crimes that involve the misuse of public office like corruption and bribery, might be Impeachable. A very different sense of the phrase comes from looking at what Congress has impeached people for in the past. At least 19 federal officials have been impeached and eight convicted. Some impeachment grounds sound familiar things like treason, accepting bribes, obstruction of justice and income tax evasion. But officials have been impeached for borderline conduct like filing false financial disclosures, serving under conflicts of interest, and showing favoritism in appointments. Congress has even impeached some officials for things that are not crimes at all, like intoxication and arbitrary official conduct. The Supreme Court has declined to weigh in saying that, "The issues regarding Impeachment fall into the political question doctrine." In other words, the court has held that Congress is the sole judge of Impeachment and the courts will not second guess its decisions. Gerald Ford famously said, high crimes and misdemeanors is "whatever a majority of the House of Representatives considers it to be at a given moment in history." And unsatisfying as that is, it may also be the best description of the law. For Talking Feds I'm Scott Johnson, cartoonist, designer, illustrator and podcaster. Frogpants-dot-com.

Harry Litman [00:31:18] Thanks very much to Scott Johnson. He's on Twitter @ScottJohnson and you can head over to frogpants-dot-com and check out Scott's ExtraLife comics. They're a welcome break from much of the very sober news and pace of life today.

Harry Litman [00:31:38] Back to it.

Harry Litman [00:31:39] The other big development of the last couple days was this even for the President, incendiary and over the top tweet, saying the people who originated the probe of him and the, and Russia's interference in the election, committed treason and suggesting long prison sentences. And now, he's no longer quite the voice in the wilderness because at least in certain important ways, he seems to have the imprimatur and support of the Attorney General of the United States, who in the last couple of days gave interviews on Fox and Wall Street Journal, echoing some of these talking points. So, let's start with this quote. So, Trump says "My campaign for President was conclusively spied on. Nothing like this has ever happened in American politics. TREASON," in all capital letters, "Means long jail sentences. And this was treason." What would you say is the actual mindset now within the Bureau generally, and just among the key actors the Andrew McCabe's and Lisa Page's of the world, that Trump and his allies on the Hill are plainly targeting. Are people irate? Are they afraid or are they just you know ignoring it? What what effect does it, do you think this is actually having?

Mary McCord [00:33:08] So I can't tell you what the reaction is to treason comments. But the, the tweets today remind me very much of the President's tweets in April 2017, when I was actually still in the government. When he famously said that he had just learned that his wires had been tapped. And it was an outrageous comment and is very much of a piece of what he said today that his campaign was conclusively spied on. There's of course been nothing to suggest either of those things. And I think that what we've seen in the interim between April 2017, and now two years passed, is that what first, I think many people in the government thought was just ridiculous. We have seen it, you know, the constant attacks on law enforcement, the constant attacks on FBI, career DOJ, as being deep state, the intelligence community as being deep state, and then now of course calls, frankly for you know, long jail sentences, is there, you know there has to be a chilling effect that this starts to have on the people that have literally spent, in many cases, decades of their careers serving the United States, and doing what they have always felt is the right thing given the circumstances presented to them. And although I don't want to speak too particularly in about the origins of the investigation because, I of course was in the government, at that time. I mean there is an investigation ongoing by the Office of the Inspector General, Mike Horowitz's office, and so the idea that Barr would feel the need to kind of jump ahead of that and assign a separate, you know, prosecutor as counsel to look into this even before Mr. Horowitz finishes his job, I think, probably is alarming to people it's a little alarming to me. There's, there's been congressional investigations there's an  OIG.

Harry Litman [00:35:01] Well, there's also, there's already another U.S. attorney doing one, he, we don't know what he's been doing. But the U.S. Attorney from Utah John Huber, you have to wonder what possible facts does he think still need to be investigated? And he has, without going, as far as Trump to say, there is well, of course we know it's certainly not treason. The Constitution says it's not treason. But, but you know charging any crime, he does leave it open ended in a pretty foreboding way. Here's what he said in response to an interview question within the last few days. Do you smell a rat at this point? But here's what Barr says: "I don't know if I'd describe it as a rat. I would just say that the answers I'm getting are not sufficient." So, I mean who the hell knows what that means. But it's certainly consistent with a suggestion that there is an overall cover up of suspect behavior and really a very far from a vote of confidence in and the you know, the troops here from the Attorney General.

Mimi Rocah [00:36:09] By putting this in the lap of another U.S. attorney in this way and talking about it publicly, it is 100 percent, trying to set off, I think almost intentionally, alarm bells that there was something so bad that it might rise to the level of criminal conduct in the fact that the investigation was opened to begin with. When everything we know publicly tells us that of course they had to open this investigation and it was not an investigation...

Harry Litman [00:36:39] Yeah yeah.

Mimi Rocah [00:36:40] ... of the Trump campaign as Trump keeps saying. It was investigation of Russian activity and people in the Trump campaign or people who were in the campaign and then left actually kept putting themselves in the sights of those investigators by having all these interactions with Russians. So, it was predicated more than predicated investigation, that was you know lawfully began. But again it just I think it's worth highlighting sort of the difference between an Office of Inspector General investigation, and what that purposes is, versus, are you giving a case to a U.S. Attorney's Office?

Glenn Kirschner [00:37:15] Harry, can I follow up on a point Mimi made? So, I'm usually a half glass, half full kind of guy but I'm going to go really cynical, following up on Mimi's point. You asked a few minutes ago, Harry, what facts is Barr trying to uncover by directing this U.S. attorney to open an investigation, I don't know that he's looking for additional facts. I think he's looking to have an open investigation, so that the President can take advantage of that, can exploit it and can say, "You know this U.S. Attorney is looking into the spying that went on." And it is the fact of the open investigation that I'm afraid Barr will now hand to the President on a silver platter, to exploit not the outcome of that investigation, which will probably be nothing untoward or improper was done.

Mimi Rocah [00:38:04] Well and of course if he's doing it for that reason I mean I hope people understand that that's exactly what you don't want. You don't want an Attorney General opening and directing investigations for political reasons and this would be sort of you know the quintessential example of that if that's why, which, which I agree it looks like.

Glenn Kirschner [00:38:23] Which conjures up the notion of Barr not having to grapple with the words "suggested," when he was asked did Trump or the administration tell you to open an investigation? He said, "I don't know I'm grappling with the word suggested."

Harry Litman [00:38:36] Yeah. I mean even whether or not it's his intention it's certainly the result. Right?Uh, the, Dunham the the U.S. Attorney is, well regarded but he's in the past. He's done this for different Attorneys General and he's been pretty methodical and takes a while and if if the same thing happens here that means this talking point is going to be red meat for Trump on the campaign trail all through 2020.

Mary McCord [00:39:02] And the president as we saw in today's tweet isn't gonna let him limit himself to saying there's an open investigation today. He says, "I was, my campaign was conclusively spied on," right? So he takes everything another few steps further than even the reality.

Harry Litman [00:39:17] So does everyone think then that this "investigate the investigators" theme is going to have real legs, that as long as the Schiffs and Cummings and Nadlers of the world are doing investigations you're going to hear Republicans and Fox News beating on this drum you know continually for, for months?

Glenn Kirschner [00:39:39] It's a way to distract from volume to all of the misconduct that we saw documented by Bob Mueller in volume two of his report.

Harry Litman [00:39:47] Everyone agree with that?

Mimi Rocah [00:39:48] I agree with it. I mean I do think you know that this sort of goes back to your first question that Trump's tweets about the investigator and statements, right, he makes them vocally, as well about the investigators and the witch hunt and all of that. For a while, I think a lot of us just started sort of shrugging them off rolling our eyes. But now when you add into the mix the power of the Attorney General and you know, put this investigation part of it aside for a second. I mean just the terminology that he's using that seems so symbiotic with Trump's terminology right? He really he goes out of his way to defend Trump and he goes out of his way to raise questions and be critical of people in the Department of Justice and the FBI. He being Barr, who is you know, the head of it. And so it when you put those things together Trump's statements and this whole idea just look less harmless to me and much more frightening.

Mary McCord [00:40:51] I think it's also notable that Rod Rosenstein is not saying the kind of things that Bill Barr is saying. Unfortunately Rod Rosenstein is not there anymore. And I think it's also interesting to consider that the, that the person who has just been confirmed to take the place of Rod as Deputy Attorney General is someone who has never worked in the Department of Justice, has never prosecuted a case, comes from the Department of Transportation. I don't know that much about his other history but it does start, and I hate to be a conspiracy theorist, but it doesn't really sound like someone who's probably going to push back very hard or question very much the things that Bill Barr is doing.

Harry Litman [00:41:33] Yeah. So this is Rosen who was just confirmed in the last couple of days and he doesn't seem, he has a reputation as a good manager but won't be a counterweight on especially any of these criminal positions.

Harry Litman [00:41:47] We could do a whole nother show focusing on Rod Rosenstein and maybe we will, because there's still going to be the point that he apparently, like Barr will need to explain his judgment, that nothing crossed the line here when he really has the experience as a prosecutor and the experience with the probe to seem, to seem to see otherwise. OK. Well I think that's all we've got time for. It does seem to all of us that this is going to continue and it really feels like a tale of two cities it's a whole area that just to many of us, certainly to me, seems like Looney Tunes, because the the predication as Mimi says seems you know manifest and really what was the FBI supposed to ignore it? Oh and by the way look what the investigation turned up. This has been really illuminating on both counts. Thank you very much Glenn, Mary and Mimi.

Harry Litman [00:42:49] We now move into our final little segment where we take a question from a listener and each of the Feds has to answer in "Five Words Or Fewer."

Harry Litman [00:43:01] Today's question comes from Tracy Marin, who asks the somewhat foreboding question: "Will we America be OK as a nation, after Trump?" And five words or fewer. Starting with Glenn.

Glenn Kirschner [00:43:20] We'll survive this criminal president.

Harry Litman [00:43:24] Mimi.

Mimi Rocah [00:43:25] Yes, our institutions are strong.

Harry Litman [00:43:27] Mary.

Mary McCord [00:43:28] OK. But forever changed.

Harry Litman [00:43:31] Yeah. And I'll say yes, only after a while.

Harry Litman [00:43:38] OK thank you very much to Mary, Mimi, and Glenn and thank you very much listeners for tuning in to Talking Feds. If you'd 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.

Harry Litman [00:43:58] You can follow us on Twitter, @TalkingFedsPod 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.

[00:44:12] 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 and federal prosecutorial practice for our Sidebar segment. Thanks for tuning in. And don't worry, as long as you need answers the Feds will keep talking.

[00:44:42] 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 and Matthew Flanagan. Thanks to Ashley Westerman, Corey Fujikawa and the RadioArt Studio, on the Upper West Side in New York City. And thanks to the incredible Philip Glass who graciously lets us use his music. Special thanks for our Sidebar today to Scott Johnson. Talking Feds is a production of Dalito LLC.

[00:45:24] I'm Harry Litman. See you next time.