TF 05: The Mueller We Know

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Harry Litman [00:00:07] [MUSIC] Welcome to Talking Feds, a prosecutor's roundtable that brings together some of the best-known former Department of Justice officials for a dynamic discussion of the most important legal topics of the day, including the investigations of the president and his circle.

Harry Litman [00:00:23] Today we're talking about the surprising recent turn of events with Special Counsel Robert Mueller, who delivered his, we now know 300-page plus report to the Attorney General last Friday. And we're really privileged to be talking with some of the former feds who know him best and have worked closely with him.

Harry Litman [00:00:44] I'm Harry Littman, I'm a former United States Attorney and Deputy Assistant Attorney General, and also Assistant United States Attorney, or line prosecutor. I'm in San Francisco today near the U.S. Attorney's office where I started out and were later Robert Mueller served as United States Attorney under Presidents Clinton and Bush.

Harry Litman [00:01:06] I'm joined by three former Feds, who are not only intelligent and knowledgeable, but who all worked for many years in offices run by Robert Mueller. Their perspectives, and those of people who work most closely with Mueller, have been absent from all the TV and podcast discussions to date. So we're very happy that they're all joining us.

Harry Litman [00:01:29] First. Melinda Haag, a partner at the law firm of Orrick Herrington who was the United States Attorney for the Northern District of California, the same position Mueller had held before her, between August 2010 through September 2015. And before that, an AUSA for many years. [MUSIC END].

Harry Litman [00:01:51] That was in two offices, right? How did that come to be, Melinda, that you worked in two different offices?

Melinda Haag [00:01:55] I got a job in the Los Angeles U.S. Attorney's office a year out of law school. I was extraordinarily grateful for that-.

Harry Litman [00:02:02] Hard thing to get right out of law school.

Melinda Haag [00:02:04] I would, I couldn't I couldn't believe it, and felt incredibly lucky. And then needed to move back to San Francisco after five years, went back into private practice. There was actually a hiring freeze in San Francisco, so I couldn't transfer. Bob Mueller became the U.S. Attorney and I happened to meet him. We had mutual friends and I am eternally grateful that he then hired me back into the Department and I worked for him in the U.S. Attorney's office here in San Francisco.

Harry Litman [00:02:31] For how many years?

Melinda Haag [00:02:32] I was in that office about five years as an AUSA. In the middle of all of that, as we all know, Bob Mueller became the Director of the FBI, so he left us first. And I stayed after he left.

Harry Litman [00:02:44] And did you become U.S. attorney without leaving the office? Did you, did you ascend as it were from the ranks, or did you take off and then-?

Melinda Haag [00:02:52] No, I went back into private practice and was in private practice for seven years, a partner at Orrick. And I went from that partnership at Orrick back into the U.S. Attorney's office as a U.S. Attorney under President Obama.

Harry Litman [00:03:04] Next to Melinda is Martha Boersch, a founding partner at Boersch Shapiro, who was an AUSA in the Northern District of California for some 12 years. Martha, did you have any sort of special supervisory roles in the office?

Martha Boersch [00:03:19] I did. Starting in I think if I remember correctly in 2001, I was the Chief of the Securities Fraud Unit, and then I think in 2003 became Chief of the Organized Crime Strike Force.

Harry Litman [00:03:31] And finally we're joined by Candace Kelly, who until recently was the Senior Legal Director for Government Investigations at Uber. But before that, Candace worked under Mueller not just at the Northern District of California U.S. Attorney's office, but also at the Federal Bureau of Investigation when Mueller was director there. When were you there exactly, Candace, and what was your position?

Candace Kelly [00:03:57] First year of the Obama administration, I was in the Deputy Attorney General's office, and then I went across the street and worked for Mueller - so it was the second year of the Obama administration - and I was Mueller's Special Counsel for National Security.

Harry Litman [00:04:10] So it was after, in other words, Mueller came to the FBI, that he brought you over.

Candace Kelly [00:04:15] Yes. So he had hired me as an AUSA here in San Francisco and then many years later I went back and served in that capacity. And then I came back and worked for Melinda who was the U.S. Attorney, and she was kind enough to let me go back when the Boston Marathon attack happened and they needed some additional help, so I went back again as Special Counsel for National Security, but just focused on the Boston Marathon.

Harry Litman [00:04:39] I think this is going to be a particularly valuable episode for the insight it might provide on Bob Mueller's decision-making processes and approach as a prosecutor. Just to make clear at the outset, we won't be discussing what Mueller likes to have for lunch or ask you for any sort of personal anecdotes, which I think everyone here knows that Mueller himself has no time for. We will try to reflect on the kind of prosecutor and FBI director he was and draw insights from those reflections, which you are very unusual to have, and most of the people who are commenting on these things really have never worked under him for a second. But see what applies to his service as Special Counsel, and especially the current unusual landscape we find ourselves in.

Harry Litman [00:05:27] In fact, so let's start there. On Friday he turns over the report, the very long and we now know descriptive report of what happened, to the Attorney General. And the Attorney General turns around on Sunday and reports that Mueller has been either unable or has declined to make any prosecutorial determination on the collusion side of things. And so the Attorney General, William Barr, comes into the breach and makes his own decision. But we are really in the dark about why Mueller decided not to make a determination and whether what Bill Barr did was in keeping with Mueller's preference and determination.

Harry Litman [00:06:18] Let's start there. What do we think, when we see that 300 page report, it will reveal about Mueller's thought processes and his decision not to actually bottom line on obstruction?

Melinda Haag [00:06:33] My guess is, and I actually, when asked about Bob Mueller, I usually start by saying we don't know, because we aren't in the room. And I think you know we all have some educated guesses based on our experience with him and our experience in this area of law, but I do like to start it by saying we don't know. But if I had to guess, I, there is a Department of Justice policy that you can't indict a sitting president. And my guess is that Bob Mueller would honor that policy and would see it as something that he has to follow. And so he would have concluded that, "I can't, I'm not going to opine on whether there was obstruction of justice under the principles of federal prosecution." And in fact that's what Barr says, that Bob did not analyze the question of obstruction under the principles of federal prosecution. So therefore it is a question for Congress to decide.

Melinda Haag [00:07:28] And I think it's possible that Bob concluded that, "I should not offer an opinion because that then prejudges the question that is not mine to answer. It's Congress's to answer. We can put forth the evidence that we found and developed, we can tell Congress or and the Attorney General what the evidence is on both sides. Here's the evidence that would support obstruction, here's the evidence that doesn't support obstruction. And then it is for others to decide what it is." That's my guess.

Harry Litman [00:07:57] Martha, Candace, does that seem about right to you?

Martha Boersch [00:08:00] Well the question I would have is, if that were true, then why wouldn't there be more of an affirmative statement that the underlying evidence that he collected on obstruction was going to be made public or at least turned over to Congress? And my understanding is right now it's unclear how much is going to be turned over to Congress or turned over to the public.

Harry Litman [00:08:19] I mean that's an excellent point, right, he sort of, you sort of get the public coming and going. They say, "Well it's your decision but we will." But now there's going to be a whole tussle over the different sources of evidence.

Candace Kelly [00:08:29] I agree with Melinda's assessment that a, first we don't know and hopefully we will see that report because obviously this team has been working really hard and we know many of them, they're incredibly thorough and diligent, and by all accounts it's a very comprehensive report, so I think it's really important that that report sees, at a minimum, Congress, and hopefully the rest of the public. But I agree that given the policy and that the Special Counsel is not in a position to override a policy, I can't see a situation where Mueller would go outside of something, that essentially would be engaging in hypothetical, because that's that's what it would be, it's not his decision to make. Now the difference between the Special Counsel and the Attorney General, theoretically, is that the Attorney General could override Department policy if he chose to. So I'd love to see how the report actually talks about the, you know I think Barr makes this jump that because the Special Counsel didn't make this decision, it leaves it to the Attorney General to do so. And I would be, I would be very surprised if the report actually says that.

Harry Litman [00:09:42] It sounds like you guys all expect that he was either hinting or saying straight out, "This is for Congress.".

Melinda Haag [00:09:46] Well and he may not have said, "This is for Congress." He may have simply said, "We can't indict a sitting president so we're not going to come to the ultimate conclusion. But here's the evidence we developed." He might not have said anything about Congress or the AG-.

Martha Boersch [00:09:59] The one issue I have with that is if his decision was based simply on, hey, there's a policy we can't indict a sitting president, then why does Barr go to some pains in his summary to say that what Mueller said was due to difficult questions of fact and law? I mean if if Mueller's decision was simply based on, oh hey there's a policy, that doesn't present difficult questions of fact and law, it seems to me.

Harry Litman [00:10:21] And let me push on that a little bit more, because this strikes me as such an important, really a pivotal question for where we are in the whole, the whole country's judgment about the president. He didn't have a problem bottom lining on collusion. He could have said - or we, or conspiracy as, as I think we would all agree is the better term - he could have said, "There, well that's something for Congress," and leave it to them. And it also, it doesn't strictly fall - I see your point, Melinda, but - the idea that we can't indict, it doesn't follow from that, as the Barr letter shows, that he can't reach a traditional prosecutorial judgment about whether the facts and law push us over the line to indictment, even if he doesn't take the final step. So you know it would, it's not a strictly speaking logical step. Is it your view that nevertheless he's just so respectful of DOJ policies that he wouldn't want to get into, Candace as you say, sort of advisory or hypothetical opinion land?

Candace Kelly [00:11:22] That would be consistent with my experience with him, is that I can't see him speculating- or, I mean anyone can go and look at how he answers questions when he's testifying before Congress, for example, to see that he doesn't delve into the hypothetical or the speculative. I think the other thing, with respect to Martha's point about the "difficult questions of fact and law" that Barr cites, I think it's odd that Barr's letter, if you, you could probably count the number of words that are actually quoted from the report, and many of them are the title of the report-

Harry Litman [00:11:57] Right. Twenty.

Candace Kelly [00:11:57] So to lift out, I think "difficult questions" are the only two words of that sentence that actually are quoted. So, it will be very interesting and I really hope that we'll see the actual work of the Special Counsel, because I am not I think the Barr letter raises more questions than answers about what that report really says.

Melinda Haag [00:12:18] Well that really ties back into the 19 page memo that Bill Barr wrote a number of months ago, which we were talking about earlier, almost seems like it's completely directed at Bob Mueller. And he says in that memo, "You cannot- A president cannot obstruct justice if he's carrying out functions that he has the authority to carry out," like firing the FBI director. So that may be one of the difficult questions of law that is referenced in the underlying report by Bob Mueller that would have been the result of a communication from Barr to Mueller's team, carried out through the 19-page memo since he couldn't do it directly.

Harry Litman [00:12:59] And now so what about that. I mean we have different portraits of Mueller in the public sphere. On the one hand, he's the dutiful soldier, stay in his lane, salute. On the other, you know he's devoted his life to principles of, of rule of law and making the prosecutorial judgments that he's asked to make. Let's assume for a moment that he made the determination that - our best guess here seems to be that he did, this has to be for Congress. Now it turns out that the Attorney General says otherwise, and we now have a sort of temporary almost fait accompli, which is different from what Mueller intended. Is he, in reaction to that a, "Well that's the Attorney General, that's the way it goes. Thank you. Thank you very much sir?" Or do you think he would be you know somewhat out of joint; he worked the most important task of his life, decided this needs to be served up to Congress, and he is at the last moment sort of countermanded by a political official? You know, do we think this is some matter for consternation on his part or just, that's the way it goes with chain of command? Martha, you're shaking your head.

Martha Boersch [00:14:08] Well I just I have less experience directly under Bob than either Melinda or Candace, and my experience with Bob was just as a line AUSA making decisions on my cases, but, but my sense, and you guys tell me, but my sense is that he would just respect the hierarchy and the organization and and and say you know OK, that's the Department's conclusion-

Harry Litman [00:14:29] So, "The whole basis for my decision is this DOJ policy. Oops, but the Attorney General disagrees. Well, you know it's been a good 22 months and that's the way it goes." Would that be your sense?

Candace Kelly [00:14:39] No, I think that that he would believe that the Constitution and the policies are clear and that this is something that there are ways that Congress can get that information. I think, I cannot imagine that, although the Special Counsel Reg says that you have to submit a confidential report, that does not necessarily mean that that's the end of the story, and the Attorney General can make his decisions and his pronouncements about it. But I would think that he would- he is not going to do anything about it, because he will stay within the bounds of what his authority is. But at the same time, there, we have a system of justice and we have a Constitution that gives power to other branches of government to do something with this information.

Melinda Haag [00:15:26] And I think one thing we will all agree on is that if he is feeling frustrated because the Attorney General took that decision away, he would never say anything about it.

Harry Litman [00:15:38] So that's a great point. And so, and we assume, don't we, that if one day he is called to testify - and that would be up to the Department probably whether to let him - he will be a just the facts ma'am four corners of the report. No emotional inflection or winks at all, does everyone agree on that?

Candace Kelly [00:15:58] Yes. His his job in this was as fact finder and he will precisely and thoroughly and comprehensively, if, if that comes to pass.

Melinda Haag [00:16:08] I think there's a great illustration of this in that in the Comey-Ashcroft bedside you know confrontation story, Jim Comey testified and described what happened at at AG Ashcroft's bedside in the hospital, which many of us know about. When Bob Mueller, Bob Mueller has never said anything unless he had to. The one time I have seen him reference it, it's because he was asked about it - I believe in Congress, Candace you may remember, and Bob did everything he could not to describe what happened that day. He, I don't remember it perfectly, but I think he essentially said, "Yes I was there." [Laughter] And really, really refused to say anything else. And that's what he's, that's what he's like. We've seen that-.

Harry Litman [00:16:56] Yeah. Although, I just want to push on that a little. I've worked with him a little and I've certainly seen this side, I just wonder if there's not some exceptional aspect to at least these 22 months in the following way. I just think it's, it's clear and beyond any measure of political partisanship that this president has basically taken a wrecking ball to values of institutional respect, rule of law and things that Mueller has devoted his life to. If that's true, let me ask like sort of a two part question and we can wind up this part of the discussion with it. Do you think that that in fact Mueller has some, some sense of a kind of damage that Trump and his approach to the whole prosecution may have occasioned? And if so, would that affect his work sort of one iota, or, or not? Candace?

Candace Kelly [00:18:01] I think that he has an amazing ability to kind of compartmentalize- and I say that in a good way, that, he, he is a human, right. We're talking about him as-.

Harry Litman [00:18:14] We're told, we're told.

Candace Kelly [00:18:16] Almost like he's you know robotically, but he is a human being. And so I'm sure, whether he shares that with his closest circles or not, he he has reactions and yes he has an incredible respect for this country and for the government and processes. But at the same time, his job was a very specific job. And so, and we see that in his sending cases other places, where if it went outside that mandate, he wasn't going to delve into it. So I think that you know he, he can have those, he can do both, right. He can strictly adhere to what his task at hand was and understand the limits of of his authority in this Special Counsel investigation, that that may be separate and apart from how he feels about the bigger picture of what's happening. But again, that's not something that he would insert into his professional judgments.

Melinda Haag [00:19:15] I think another example of that is when he testified before the Senate when he was being confirmed to, as the FBI director. And he had left our office to go and do that, and so some of us were watching it on television. And it was the typical hearing where the the senators are pontificating and you know it's not really a question and it's they're just trying to make a point or have a sound bite. And I think, based on our interactions with Bob, I'm sure that he thought it was silly and understood you know, understood what was happening and that it really had nothing to do with him. You would have never known it from the look on his face or the answers to questions or certainly when he came back to the office after that was over. I mean you never would have known, but just watching it and knowing how how strictly he follows rules and protocols, that he would have found that frustrating, but he just didn't reveal it. In any way.

Harry Litman [00:20:21] It is really interesting, I mean, he's idolized in Washington- well, certainly within this room and I count myself in that, in that category. But what we're describing is basically, it's almost robotic in a sense. I mean he's actually the guy who does play by the rules. "This is the rule. I follow the rule." And you know it's so exceptional especially in Washington D.C.

Martha Boersch [00:20:45] To me, it just reflects how much Bob really does reflect the institutions of government, and I mean that's that's why he was the right person for this job and that's why he answers questions, you know when he's testifying the way he does. And that's why I have so much respect for him because I think that is really what, in my experience, what really drives him is respect for the institution of government, for the institution of the U.S. Attorney's Office, and the Department of Justice.

Harry Litman [00:21:10] Well let me then push back because obviously this president singularly has you know not only not shared that view, but has done quite a bit to undermine it. Do you think that's something that Bob Mueller just sits to the side?

Martha Boersch [00:21:25] I do. Yeah. I don't think it's within, I don't think he sees that as part of his job to you know engage in that sort of partisanship, no matter what he thinks - and I have no idea, none of us have any idea what he thinks about President Trump. But, because it's not really relevant at the end of the day to what job, what the job that Bob was told to do.

Harry Litman [00:21:46] OK. Well that's I think all we have time for on this one.

Harry Litman [00:21:51] [MUSIC] Those of you who've listened to Talking Feds know we now come to a feature that we call Sidebar, in which we pass along some really basic information about federal prosecutorial practice that usually you don't get a chance to hear on the cable shows or elsewhere. And we try to do it with interesting people from other walks of life. And we're just about in for me the happy annual day of baseball beginning again, so today we've asked Dale Scott, who was a major league umpire for more than 30 years before he retired in 2017. Dale is going to tell us about a very pertinent question to what we've been discussing, which is when you can disclose grand jury materials, which in fact is what the Department of Justice is now analyzing.

Dale Scott [00:22:48] What is DOJ policy on grand jury secrecy? Grand jury proceedings are held in secret. Grand jurors, prosecutors and court officials are prohibited from disclosing any matter before the grand jury. This includes the types of crimes being examined, the subjects of the investigation, the names of witnesses and jurors, and the evidence presented to the grand jury. It also includes any reports prepared by prosecutors that are based on grand jury evidence and it applies even after the grand jury has concluded. Information obtained from another source does not become secret just because it was presented to the grand jury, but the fact that it was presented to the grand jury would be secret.

Dale Scott [00:23:31] There are exceptions to the rule. First, it does not apply to grand jury witnesses, who are generally free to discuss their testimony. Also, government prosecutors may use grand jury information to enforce federal criminal law and may disclose grand jury material to another grand jury. Finally, a court may authorize the disclosure of grand jury material in connection with certain other proceedings. Some courts have held that this includes congressional impeachment inquiries. Some courts have also held that they have inherent authority to order public disclosure of grand jury material in special circumstances implicating great public interest. But that doctrine is controversial, and the Department of Justice disagrees with it. This is Dale Scott, retired Major League Baseball umpire. And now like I said for 32 years in the Major Leagues, Play ball! [END MUSIC]

Harry Litman [00:24:30] Thank you very much, Dale Scott. I am in the home of my second more or less adopted baseball team, the Giants second in my heart only to the Pirates, and very excited about the beginning of the baseball season. OK. But back to Bob Mueller. I'd like to profit from this valuable opportunity to have you three here, to talk a little bit about his decision-making processes. We've heard some of the names of the people who were with him on the Special Counsel's office and had reports and that some of them were more aggressive than others. There would obviously have been differences of opinions on key prosecutorial moves within the staff. How does Mueller, in your experience, go about making determinations when that arises? Does he talk it through with everyone? Does he look for one organic recommendation? What, what experience have you had with his trying to make final decisions in settings where perhaps his assistants have different points of view? Martha, do you have any thoughts about this?

Martha Boersch [00:25:45] Well I can only speak from my experience with him on the Lazarenko case when I was in the office and indicted that case, and-.

Harry Litman [00:25:51] What was that basically?

Martha Boersch [00:25:53] Lazarenko was a former prime minister Ukraine who we indicted on money laundering and wire fraud counts. And it was it was a difficult case to prove and it was a difficult case to try to prosecute, and Bob was involved in the prosecutorial decision in the sense that we would - I wrote a pros memo and then we made some presentations and Bob ultimately was the decision maker. But my experience with Bob on that was that, yes he listens to other people, but he's he's a very fast decider and he is a very firm decider. There's not a lot of dithering, he hears both sides, and then you know the buck stops there and he makes a decision.

Harry Litman [00:26:31] Did he assign someone else to the other side? You had a view, was there a counter view presented to him?

Martha Boersch [00:26:37] There was- well, as a prosecutor, I mean, I present, I tried to present both sides. Here's, here's the upsides. Here's, here's why we think the evidence is sufficient. Here's the difficulties with the case. And then there was a case agent and there were other supervisors involved. So I think all prosecutors, in my experience, try to present both sides when they're making a decision whether to prosecute or decline a case. But so my experience with him was that he's, he listens, and listens to both sides, but at the end of the day it's his decision, he makes a decision very fast and that's that, you know.

Harry Litman [00:27:10] You're shaking your head, Melinda.

Melinda Haag [00:27:11] I agree completely with how Martha describes that. I would, I would add that he, in my experience with him, he gets in the weeds. We had a morning meeting with him, when he was the United States Attorney, every, every morning at 8:30. All the supervisors came to his office and sat around, and sat around the conference room table. The meeting lasted no more than 15 minutes. So he is very fast.

Melinda Haag [00:27:38] He would go around the room and call on each of us to tell him what was happening in our sphere, in our respective spheres that day or that week. He wanted to know anything that significant was that- he wanted to know about anything significant going on in the office, and that was the way that he gathered that information. And he gathered it every day, and he got very very into the weeds on things that he needed to. The other thing he did when he was the United States Attorney is he personally handled a death penalty case. And I think he missed handling cases himself, and he he did that, and was obviously very very deeply involved in that case. And I'm sure that was one of the funnest things and more most interesting things he felt he was doing as the United States Attorney. So he he definitely wants to be in the weeds, and if I had to guess, he knew everything that was going on in the Special Counsel's office throughout the entire time.

Harry Litman [00:28:33] Does that make sense and does it vary at all in terms of his tenure as FBI director?

Candace Kelly [00:28:39] So my experience at the FBI was that he definitely wanted to surround himself with people who were able to say no to him. I remember when I was talking about going over and being his Special Counsel, I spoke with John Pistole, who was the deputy director at the time, I'd never met him before. And the only question that I really remember from that conversation was, "Can you say no, can you push back on Bob Mueller?" And without missing a beat I said, "Well I wouldn't even be considered if I was, if I couldn't do that, right? That is what he expects. And you better be prepared." So, he wants to have a dialogue. He wants to engage and if he he was very good at ferreting out people who tried to kind of know the- an inch deep and not six feet deep. Because he did into the details and he asked very difficult questions. He knew what he needed to ask.

Candace Kelly [00:29:33] So I think the question of how did he make decisions? Very thoroughly, very rigorously. I think probably a little different from prosecuting an individual case. I saw him making decisions that had much broader impact and policy ramifications and political ramifications, and so there might have been, I saw probably a little, a little more process and deliberation on his part. But I think the most important thing is that there, I think there's a little bit of a tendency for people to hear about this person who so follows the rules and is very competent and makes these decisions, to think that he might want to surround himself with yes men and women. And that is as far from the truth as it could be. He wants intelligent, well-researched, well-prepared people to engage in those conversations. And I know that some of the people on the Special Counsel staff are just that and I was not surprised to see that he had chosen some of them.

Harry Litman [00:30:34] Sounds a little scary actually, the meetings with him. Was it sort of intimidating to have these discussions and did in fact he ever offer up a question from the weeds that you didn't know the answer to?

Melinda Haag [00:30:48] I think a lot of people have described having these kinds of interactions with him as intimidating. You know I, I, I think you had to be prepared. And I, and I think we all knew that. And none of us ever wanted to or did frankly walk into a meeting without being prepared, because you knew what was coming.

Harry Litman [00:31:10] Phenomenal. I think about you know his his incredible record of not leaking, and sure that's partly his ethos, but obviously everybody on the staff, it just get all the assistant special counsels it just gets transmitted to, and you know you would never even think about it, but in a lot of offices you know it doesn't work that way.

Candace Kelly [00:31:30] I was just going to say, in terms of being asked questions that you don't know the answer to. Of course that happened. And, to me, to others, and the right answer is, "I don't know but I'm going to get back to you." And the number of people who tried to give some, any other version of an answer to that question was, it was, it was very painful to sit and watch. And often those people were not- he just would lose respect, I think, because that's, "if you know, you know; if you don't know, go find out and come back to me. Quickly.".

Harry Litman [00:32:04] Speaks very well of you guys in the room that you were people who he called back. OK. I'd like to finish by talking about one possibly controversial, a decision he made, or at least one where there might have been a difference of opinion in the office, and that is his decision not to subpoena President Trump in the course of his investigation, and particularly with respect to collusion, which is a, where intent matters so much. Would you have any thoughts or surmises about why he would have made that decision, and whether it would have been something that he would have received conflicting recommendations about from the ranks? Let me start with you, Melinda.

Melinda Haag [00:32:54] I, I wonder if this goes back to Bill Barr's 19 page memo. Because he says in the 19 page memo, you, "The president who's carrying out functions that he is allowed to carry out, like firing the FBI director, cannot obstruct justice." And he sort of takes that and says, "And therefore you can't subpoena him to testify." I'm not sure about that connection, but that's what he presents, what Bill Barr presents in that memo. And I wonder if the Special Counsel's office concluded that, we're not going to take a position on obstruction and for that reason we're not going to subpoena the president.

Harry Litman [00:33:37] But of course Barr wrote that as private, as a private citizen. Would it be that Mueller just so respects Barr's view that he would take it as a as a given? Because you know at that time and even and I think actually the decision not to subpoena even predates that, that memo.

Melinda Haag [00:33:51] Right so this isn't rocket science. I mean, the Special Counsel's office may have figured out, probably likely figured out, this these legal issues, understood these legal issues before seeing the memo from Bill Barr. So you know this is one of those things that I don't know the answer to- I think it's possible-.

Harry Litman [00:34:07] Do you think we ever will?

Melinda Haag [00:34:09] I doubt it.

Harry Litman [00:34:13] Mueller being Mueller.

Melinda Haag [00:34:14] Well that's you know then you're getting into you know sort of prosecutive decisions that aren't normally public. And I would be surprised if we ever really find out why.

Harry Litman [00:34:27] So you don't think it's going to be part of the report, "We decided not to because..."?

Melinda Haag [00:34:31] It could be, but if I had to guess, I don't, I don't think so.

Harry Litman [00:34:36] Martha?

Martha Boersch [00:34:38] I mean we discussed this a little bit earlier. I think you know one reason may be that normally if Trump is the target of the obstruction investigation, normally you don't subpoena the target. And if the only issue is somebody's intent, I don't know how much you gain by, by having the person come in because intent is generally proven by circumstantial evidence. People who've committed a crime rarely say, "Oh yes, I did that and I intended to do that, and I intended something bad." So from my perspective as a prosecutor, I don't know what - as a former prosecutor - I don't know really how much they would have gained by subpoenaing the president. And as Candace pointed out earlier, it would have delayed the proceedings because now you get into questions of the Fifth Amendment privilege and, and whether it can be done at all-.

Harry Litman [00:35:25] Executive Power.

Martha Boersch [00:35:25] Yeah. All of that. So to me it didn't seem surprising that they didn't subpoena the president, but-.

Harry Litman [00:35:33] Candace?

Candace Kelly [00:35:33] I agree with, I think Martha made some good points there with respect to subpoenaing and trying to interview and talk directly to a target of an investigation. I think that's a very uncommon luxury for a prosecutor, to have that opportunity. And I've been surprised at how many commentators in the news have been raising the question of well, whether it's Trump or Manafort or any of the targets, why didn't they talk to them directly? It's, it's just not- there are there rules about it and there's a Fifth Amendment privilege, but it's also not necessary to prove intent with a confession - which would make prosecutors job really easy if everyone confessed. But often it's circumstantial evidence, as Martha pointed out.

Harry Litman [00:36:17] I'll sound the sort of dissenting view at the end here. It's possible sure if he, Mueller actually made an overture to the president's counsel and they told him the president will take the Fifth Amendment. Yes, then you would back off. It's not clear that that happened and of course he, he, he never actually called him a target. But I think it would have been a very valuable exercise, not because he would have confessed, although we saw the president say on national television to Lester Holt, "I did this because of Russia." That's very valuable. But just because the the answers he would have given, especially to information that Bob Mueller had but his lawyers didn't, could have been I think very fruitful in providing circumstantial evidence of intent. I, as far as we know he didn't actually make the effort, and that surprised me. And I understand the point about the time it might have taken, but I think it would have been fast tracked, probably would have been a few months.

Harry Litman [00:37:23] And I think the force of the Clinton v. Jones case - and by the way, speaking of Clinton, he was of course famously subpoenaed and he wound up testifying. But both that and Nixon cases put together, I think would have sustained the subpoena that unless it were declined on Fifth Amendment grounds.

Martha Boersch [00:37:47] But those, well those just strike me as different in the sense that, in my recollection, I could be wrong, but on both Clinton and Nixon, the the reason to do the interview or to subpoena them is to have them talk about facts other than your subjective intent. And if the only issue is Trump's subjective intent, I don't see the point of issuing a subpoena to ask him, "Hey, what was your subjective attempt when you did X or Y or Z?" You prove that by circumstantial evidence and he's not, I mean who would come out and say, "Oh well I intended to obstruct the investigation into Russian collusion?".

Harry Litman [00:38:19] Yeah, [Laughter] I think it would've been a somewhat more detailed testimony than that, I agree.

Harry Litman [00:38:24] OK so we're at an end of what I think has been a really terrific and illuminating discussion. We close things out here at Talking Feds putting ourselves kind of on the line and taking a question from a listener that we are charged with answering in five words or fewer. Today's question comes from Will Partington, who asks more of a personal question, "Who were the federal law enforcement officers of any capacity that inspired you to take up public service?" And I'll add to that, "take up or remain in public service in the name of the United States government?" So, five words or fewer, Ms Haag?

Melinda Haag [00:39:13] Bob Mueller. Ernest Vernon Haag, my dad.

Martha Boersch [00:39:18] Actually a movie, Prince of the City.

Harry Litman [00:39:22] That's seven also. You guys have no, are supposed to be rule followers. [Laughter]

Candace Kelly [00:39:26] We're not math people, so counting is hard. Mine may go over five. Janet Reno. J-term Williams College.

Harry Litman [00:39:36] And I'm going with Jamie Gorelick.

Harry Litman [00:39:40] And in fact, let's, I think I think let's expand on our five word straightjacket here and give a little thought either about your dad or Bob Mueller or Treat Williams, I think is Prince of the City, or Williams College-?

Martha Boersch [00:39:53] Well he was the actor.

Harry Litman [00:39:54] Yeah. So any, anything to add for why these were your inspirations?

Melinda Haag [00:40:00] Well I think everybody knows why Bob Mueller. And with respect to my dad, he grew up in poverty in Arkansas, got an ROTC scholarship to UCLA, joined the Navy, became a Navy pilot, and always believed that the Navy saved his life. And he was the most patriotic person I've ever known.

Martha Boersch [00:40:21] So the movie Prince of the City, if I remember correctly, was it was the story essentially about a cooperating witness who was working with the U.S. Attorney's office in an office on the East Coast. And I think what inspired me about the movie to go into the U.S. Attorney's office in particular was the idea that the power that you have as a United States Attorney or an Assistant United States Attorney enables you to do more good for the public than you can as a defense attorney or a civil attorney or anybody else. And so for that reason I thought, if you, if you get really good people in that office they can do much more good than in any other job.

Candace Kelly [00:41:00] And for me, I mentioned Williams College because when, Williams has a January study program where you can design your own course. And my senior year I designed a course to go down and work for Janet Reno when she was in Miami in the State's Attorney's office. And, very similar to what Martha was saying, it was very clear to me both her passion for what she was doing, her dedication and the incredible reach she had in affecting that community. And I spent a fair amount of time in the juvenile justice branch and she, to the day she died, kept saying that it was time for me to go fix the juvenile justice system, which I have failed her on that but I'll keep working on it. But she was definitely inspiring and I think she used her public service for so much good and served so, such a wide breadth of people.

Harry Litman [00:41:50] I was there at Main Justice when she came in and she addressed everyone and she just said, "We're here to do the right thing, that's where we're going to, that's the question we're going to ask ourselves at every turn." Jamie Gorelick, who was her deputy, so smart, so fair and so candid. So lacking in the kind of B.S. that seems to be the coin of the realm in Washington, and yet nevertheless incredibly effective.

Harry Litman [00:42:22] [MUSIC] OK. Thank you very much to Melinda Haag, Martha Boersch and Candace Kelly. And thank you very much to our listeners for tuning in to Talking Feds. If you like what you've heard, please subscribe to us on Apple podcasts or wherever you get your podcasts. You can follow us on Twitter at @TalkingFedsPod to find out about future episodes and other Fed's related content. And you can also check us out on the web at TalkingFedsdotcom.

Harry Litman [00:42:49] And we want to hear from you! Please submit your questions to Questions at TalkingFedsdotcom, whether it's for five words or fewer or general questions about the inner workings of the legal system for our sidebar segment. Thanks for tuning in, and don't worry, as long as you need answers the feds will keep talking.

Harry Litman [00:43:15] Talking Feds is produced by Jennie Josephson, Dave Moldovan and Rebecca Lopatin. David Lieberman is our contributing writer. Production assistance by Sarah Philipoom.

Harry Litman [00:43:27] Thanks to the incredible Philip Glass, who graciously lets us use his music and special thanks to Dale Scott, recently retired Major League umpire. Talking Feds is a production of Dalito LLC. I'm Harry Litman. See you next time. [END MUSIC]