TF 17: A House Divided

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Harry Litman [00:00:07] Welcome back to Talking Feds -- a prosecutors roundtable that brings together prominent former Department of Justice 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 Washington Post columnist. Today, we're talking about the administration's continuing campaign to basically shut down any investigation in the House of the conduct of the president and his circle. As well as a possible proposal from Professor Larry Tribe to try to break through the logjam. And we've got Feds in several cities to talk about it.

Harry Litman [00:00:52] Talking Feds regular Barb McQuade who was the United States attorney for the Eastern District of Michigan from 2010 to 2017. Barb is currently a professor from practice at the University of Michigan Law School. Always lucky to be able to welcome her. Welcome Barb back to Talking Feds.

Barb McQuade [00:01:12] Thanks Harry always fun to be part of the conversation.

Harry Litman [00:01:15] Elliot Williams was deputy Assistant Attorney General for legislative affairs at the Department of Justice, where he managed a team that handled the department's legislative affairs, activities dealing with antitrust, civil, civil rights, criminal, environmental, immigration, and tax enforcement. Quite a portfolio. Elliott is currently a principal in the Raben Group's Government Affairs Practice Group. Elliot, welcome back to Talking Feds.

Elliot Williams [00:01:45] Always a blast to be here.

Harry Litman [00:01:48] And finally, we are really pleased to finally be able to welcome to the program for the first time, Asha Rangappa,  who served in the Federal Bureau of Investigation as a special agent specializing in counterintelligence investigations from 2002 until 2005 in New York City. Asha's currently director of admissions and a senior lecturer at the Jackson Institute for Global Affairs at Yale University, where she teaches national security law and other related courses. Welcome to the program for the first time, Asha.

Asha  Rangappa [00:02:26] Thank you so much for having me, Harry.

Harry Litman [00:02:28] So were you or are you the person who actually makes the final call on the, best I can tell, 99.8% of applicants to your high school who get the rejection letter.

Asha  Rangappa [00:02:43] Yeah. That would have been me. I did that for 12 years. I read, I don't know roughly, 3,000 to 4,000 applications a year. And as you said for admission of for about 250 people each year.

Harry Litman [00:02:56] OK. Well really a pleasure to have you. So let's dive in.

Harry Litman [00:03:00] We have the White House, the Department of Justice and Team Trump, in general completely rebuffing the House Judiciary Committee on several fronts, seemingly unconcerned about the political costs of being viewed as obstructionist. So just this week alone you have the White House ordering former Communications Director Hope Hicks former deputy White House counsel Annie Donaldson, both of whom might have very significant testimony to offer, not to comply with a subpoena from the house. You have a series of maneuvers involving Michael Flynn who has discharged his lawyer and may be preparing to resist efforts to get him to testify. You have a second likely count of contempt against Attorney General William Barr for the department's refusal to produce documents about the genesis of the so-called citizenship question on the census. And again that's just the added snubs of this week. So let's start with Donaldson and Hicks. Why does the Judiciary Committee want to hear from them and does the White House have a solid case for ordering them not to comply.

Harry Litman [00:04:18] Asha, do you have thoughts here?

Asha  Rangappa [00:04:21] Yes I do. You know I think that there needs to be more of a clear explanation to the public about what executive privilege is and it isn't. My understanding is that that the Judiciary Committee wants to hear from Hope Hicks because she was involved in the, I don't know what other word to use, the cover up of the...

Harry Litman [00:04:43] I think that's a fair word here.

Asha  Rangappa [00:04:45] ...of the Trump Tower meeting or in response to the New York Times reporting on it.

Harry Litman [00:04:50] The one that the president himself helped author, yes?

Asha  Rangappa [00:04:53] Correct. So the President was involved in in the PR strategy essentially for, for that event. And Donaldson has information on the communications or kind of what was taking place with Donald McGahn, the White House counsel, and his interactions with the President and he is relevant because remember that the President wanted him to have Mueller fired and then wanted him to then cover up the fact that he had requested him to do that.

Harry Litman [00:05:24] And so Donaldson by the way I hadn't realized this. She's portrayed a little as kind of McCann's like assistant. She's deputy White House counsel, and she's you know eh, a lawyer with it with a pretty impressive pedigree herself. So, but she was the person who was with McGahn taking notes of all this stuff contemporaneously and that's pretty solid evidence.

Asha  Rangappa [00:05:48] Right. And you know the assertion of executive privilege in either of these context seems to me to be highly dubious. Executive privilege is a separation of powers issue; it's the idea that there are certain provinces of the executive that ought to be free of congressional intrusion because they involve deliberations on executive functions or national security issues in which the executive has authority and that they should be able to he should be able to speak with candor with his advisers in making those decisions and not fear that they're going to become public. I don't see how either of these situations fits into that category. I mean the first was basically a cover up of an event that happened before he even became President and the second was essentially an act of obstruction.

Harry Litman [00:06:36] Barb, first, have we given full due to the executive privilege argument. What's your sense of of why they're saying that executive privilege covers both, you know Donaldson and and Hicks, neither of whom is, you know, super high level, smallest circle of confidants with the President?

Barb McQuade [00:06:59] Yeah, I think it's important to distinguish between executive immunity and executive privilege which are two different things. There is one court case on this. It involved the assertion of executive immunity by the Bush administration to prevent White House Counsel Harriet Miers from testifying in the U.S. attorney firings scandal during that administration. And the court in that case held that aides to a President do not enjoy immunity from testifying. That is they can't blanketly say, "I stand in the shoes of the President and you can't even make me come." There is you know a limited qualified executive privilege. And so you have to show up and you have to go question by question. But there may be certain questions over which you can assert executive privilege, as Asha said, things relating to deliberative process, candid advice, those kinds of things. But when it's getting into some sort of criminal cover up, I don't think anyone would agree that that should be covered by the executive privilege. So, I think it's a very aggressive move to assert executive immunity and say, "These people don't have to even show up to the hearing." I think ultimately they'll lose in the courts. But as Asha said if they can stall it long enough, they might be able to get themselves past the 2020 election.

Harry Litman [00:08:17] Yeah, OK. And as you say so it would be item by item it's the evidence that is covered and not the body, as it were, which the White House has at least argued for certain people like McGahn. There could be a whole blanket immunity from testifying in the first place. So Elliot do you do you agree. I mean we've had certain arguments from the White House that seemed to be dead losers in the water and seem to be on a fast track for being rejected. And I mean by that the assertion in several instances that there's just no legislative purpose to what Congress is doing that's been pretty well slapped down and is looking bad for them. This is something a little bit different, right? This is claiming executive privilege, although as Barb says in this kind of a hyper aggressive way, do you see this as of a piece with no legislative purpose argument being on on a track to quick rejection?

Elliot Williams [00:09:14] I do and I think to answer that question it's important to sort of pull the camera back or at least here, the microphone for a second, and talk about how we got in sort of what what's driving this. And this goes back to the very first day Congress was sworn in back on January 3rd, and right around -- June 3rd 2019. And right around then the President started tweeting about "presidential harassment." He used the term for the first time and any attempt by this Congress, a Congress with a Democratic majority or a House with a Democratic majority, to try to investigate anything or to try to engage in any active oversight was going to be found to be harassment or overreach or whatever. And you can just count the number of instances in which the broader strategy has been to treat Congress as an illegitimate investigative body. Frankly even out of our, the context you know, the four of us, all live in let's get out of that context for a second. Like Steve Mnuchin, the, the Treasury secretary got it, got into it with Maxine Waters over the fact that he didn't want to testify because he had a meeting. Literally he just, "Well you know I have an important meeting to be at today and I don't see why I should be here testifying before Congress as the head of the Treasury Department, testifying to the House Financial Services Committee." But that's just the framework of the administration has set. So that's how we got here where we end up ultimately is holding these folks in contempt because that brings in the third branch of government the courts who can actually enforce the orders to make these people comply. Simply --  

Harry Litman [00:10:46] Let me ask a quick follow up to you because you've got a fair bit of experience on the Hill, so if, if, if the regime were running the way Barb says it should, it's an item by item inquiry with about executive privilege. So let's say that in fact Hope Hicks were to show up and she were to be asked about Trump's actions on the plane and she were to say, "I'm sorry executive privilege." And the House would say, "No I'm sorry it's a crime fraud exception. Please talk Ms. Hicks at that point on that particular item." Does the music stop and a whole court case ensue? Do they go on to other testimony while it does? How would an item by item kind of executive privilege objection actually operate?

Elliot Williams [00:11:36] Sure Congress would be like a hear a hearing just like any, like a deposition for instance. So, if a witness takes the Fifth, it can apply to their whole testimony or could be question by question. Right? As would be the case in the deposition or whatever. And so she'd say, you know she'd make her fabricated phony assertion of privilege, and the member of Congress probably push her on it and eventually she wouldn't answer anything. And then they would just litigate from there.

Harry Litman [00:12:05] I wonder then what happens with all the rest of the testimony are we done for the day because obviously this is a skirmish involving the attempt to obtain on the House's part and rebuff on the administration's part certain television moments that would both educate and potentially inculpate... and educate the public and inculpate the President.

Elliot Williams [00:12:30] And to some extent I don't know because I've never had a witness fabricate and make up a phony assertion of privilege...

Harry Litman [00:12:37] Really? With all your experience.

Elliot Williams [00:12:42] Well, we've just had..... No comment. But like uh, we've just never seen this. I've just I've never seen this level of stonewalling of Congress. Now look, a witness asserting privilege or attempting to assert privilege in an open hearing is itself a theatrical moment because then you could have a little back and forth between the members of Congress and the witness, which has a value for the folks who were watching at home, because everybody's sort of doing what they want to do as a narrative or sort of PR point. Now at the end of the day what they want do, I think is bang their heads against the wall for the remaining four and a half minutes of that round of questioning give up and move on, and then go to a different line of questioning that is still either productive for the members of Congress to ask, I'm speaking about the Democrats here, the Republicans will probably seek to just rehabilitate her and fulminate and huff and puff and bang their shoe on the table and that kind of thing.

Harry Litman [00:13:37] So Barb and Asha, this isn't exactly down the middle of our experience but we're all following this pretty closely. I wonder about your view of the success of the strategy that Elliot outlined. The, the, the White House seems to be trying not simply to resist whatever legal compulsion or subpoena comes up but to be doing that on the grounds that the entire thing is illegitimate, it's all harassment, it's played an arch political terms, it's always about motive and politics. First, do you do you agree that that's the you know the broader rhetorical strategy and how do you think it's working?

Asha  Rangappa [00:14:20] Well so I would say that first as far as the strategy, that, or theory of why they are doing this, I think I would, I would go with Elliot's, you know what the description that he just gave. I think it's more than simply discrediting the investigation. I think this is about disempowering Congress as an institution. And that's because, you know, we was watching this happen in the context of subpoenas. But let's also remember this is someone who declared a national emergency, even in the face of Congress not allocating funds. And what scares me is that I think that we are going to start seeing this same approach to the courts. And I think that's when we're going to be in trouble, because when this gets litigated and when they start losing and the court begins to order them to either provide the documents or show up to testify, if they don't comply then I think the question is, where are we? Because that's kind of the last stopgap. And if it becomes we're not only going to not acknowledge Congress as an institution we're not gonna acknowledge the courts, then I think we are in a true crisis.

Harry Litman [00:15:26] Yeah, talk about constitutional crisis.

Harry Litman [00:15:28] All right I want to spend just a little bit of time on the Michael Flynn developments and in particular how they dovetail with this overall strategy. So in the last, well just yesterday, we had already had a transcript of a voicemail between Flynn's lawyer and John Dowd, the President's lawyer but we got the actual tape, heard the tone, heard the whole kind of ending emphasis on the President's, you know, regard for Flynn and the like. So, that, that I wonder if people think that that's a that that was a pretty significant development or just sort of a redundancy? But also Flynn has fired his lawyers now. And is that somehow related, do we think, to an effort to change his whole dynamic, withdraw his plea, try not to be subpoenaed by the Congress, somehow, come back into the whole, you know under the whole Trump umbrella, and Trump camp. Anybody have thoughts about that?

Barb McQuade [00:16:41] Yeah, I've got some thoughts about that, Harry. One of the things is I think it so clearly demonstrates how little people have absorbed the Mueller report, because this is all in the Muller report. The call, you know, obviously not the audio which does I think bring it home and illustrate you know the tone and some other things that might be important. But, but to me, although the call is kind of important because he talks about, you know, "Let me state this for you in, in starker terms we're going to need a heads up if you're talking, if you're cooperating and don't forget the President is very fond of, of Michael Flynn." Which you know I think suggests, "we want to share information and remember be good to us and we'll be good to you," which I think could suggest obstruction of justice. But what's more important I think is what's contained in the Mueller report which says that, the call gets returned, and when the call gets returned and Flynn's lawyers say, "You know we can't share information with you." At that point Dowd becomes indignant and he says, "I am taking that answer to be hostile, hostility from Flynn toward President Trump. And you know what I'm gonna tell President Trump that Flynn's being hostile to him." That strikes me as even more overt intimidation of a potential witness than this call. So, I think like all obstruction evidence, you have to look at it in context and you can't look at it in isolation. And when you look at this as part of a bigger pattern, I think it does suggest obstruction of justice with regard to Michael Flynn.

Harry Litman [00:18:12] I so I agree with all of that Barb, although I think I'd give a stronger kind of, of account of the difference in actually hearing the audio and I think it plays into the broader struggle that's going on now. Most everything, eh, everything they want McGahn for for example is in the report. And this of course had no visuals but just the hearing in real time, and as you say the, you know, the especially the coda of "the President's fond of you," it just as juries do, it, it just makes sense to make it so much more vivid and seems to me the possible solution to the quandary the House finds itself in, which is people's seeming indifference or glassy eyed-ness  to the de-, the written details in the Mueller Report. You know Asha, you have any thoughts about that?

Asha  Rangappa [00:19:11] Yeah, I think you've hit the nail right on the head, Harry. I mean we also saw this phenomenon with Mueller's press conference. If you'll remember. I mean he said things in those in that press conference that are also in the Mueller's, in Mueller Report such as, "if I could have exonerated the President of obstruction of justice I would have done so but I could not." He says that two or three times I think in Volume 2 of the Report. But when people saw him saying that out loud, you know, not only did I think it really sink in, that the President had not been exonerated but that clip was played over and over again. I mean there is something just about our media environment right now, that having visual, having audio is something that actually can reach many more people than a 448 page written document.

Harry Litman [00:20:05] Yeah I mean the quote you're hearing bandied about is, you know, people prefer the movie to the book. OK, well we're running out of time on this topic. I wanted to close out by soliciting people's opinions on possible responses, if Congress is if nothing else delayed or stymied in the different people in the administration camp, do you have any sense of, of other witnesses or who would you if you were counsel to the Judiciary Committee, who might you call up? That's you know a new figure now or that hasn't hasn't been part of the back and forth where might be your next move? Anybody have an idea about that, Elliot?

Elliot Williams [00:20:54] I'll say something a little controversial here and say someone other than Robert Mueller from the Special Counsel Team. Because we've gotten into the "Cult of Mueller," somewhat, that he is the only voice that we can hear from, who was the only one who will have authority on any of these issues. But all of this gets back to precisely what, um, Asha and Barb had said in their comments, which is that you know it's the movie versus the book and the value to hearing from him even at that press conference. A lot of people just aren't plugged in as to what happened, you know, or haven't read the report or so on but hearing someone just reiterate what's in the report has, would have a huge public benefit. And again it just needs to be someone from the Mueller team. It doesn't even need to be him.

Harry Litman [00:21:40] Um, Barb?

Barb McQuade [00:21:41] Well, you know, obviously some of these people who were there and participated that they've been looking at like McGahn and Hicks and Donaldson, but you know another person whose name comes up very frequently in the report is Steve Bannon.

Harry Litman [00:21:55] Yes.

Barb McQuade [00:21:56] I'd like to hear from Steve Bannon under oath about some of the things that he saw and participated in you know in his statements to book authors, he's actually been remarkably has candid and unguarded in sharing some things.

Harry Litman [00:22:10] Yes. Yeah I think that it would be a really interesting day of testimony. Asha?

Asha  Rangappa [00:22:14] I think it could be worth getting, Rod Rosenstein back in the seat. You know, he oversaw the investigation and then he was also a part of this decision later to exonerate or whatever, the President of obstruction. And you know, I think understanding how he look how how he reconciles all of that together would be important. I think I would disagree with Elliot on bringing someone from the Mueller team. I think it's actually really good to have all of those people, to be the face of the Mueller investigation, Mueller himself because they've been attacked so much for their donations, and are they Democrat or Republican? That I think as soon as you bring a visual face that could be anyone other than Mueller, which I think many people are loathe to criticize too much, I think you open the floodgates for you know just going down the rabbit hole of discrediting the investigation based on on their background.

Harry Litman [00:23:16] I see. Like the 18 angry Democrats. This is obviously their big strategy, right? It comes out yesterday that Kilimnik might have been bringing something of a source. And how does the administration try to spin that as a show that that Mueller's report is partial or slanted or even dishonest. You know it which is a total non sequitur and almost certainly wrong. Anyway. Of course Mueller, you know, Mueller knows the facts on Kilimnik. And yet that's, that's the way it's spun. Yeah, I gotta say, I, you know, I really do think Rod Rosenstein has some explaining to do. You know we're hearing from Barr now and and others, Giuliani they're really excoriating Mueller for not having bottom lined and said, "Did Trump could have criminal conduct?" Well who was the one who was overseeing the investigation at the time and he who must have been aware of that decision and then Rosenstein is the very one who then joins with Barr at the end implicitly rebuking Mueller and coming to a different conclusion. You know and Barr who's never been a prosecutor for a day in his life is heavily leaning on him and his credibility. So, he would be something of a hostile witness but an illuminating one he certainly wouldn't lie. And yeah I would really like to see that. So those I was thinking of Bannon also, I would just add if Flynn, I think Flynn would be would be pretty good, even though he'd be squirrelly, to have him in the hot seat. And I think they could get him there if he's still under a cooperation agreement, I think could be pretty vivid to just the whole you know genesis of the cozying up with Russia.

Harry Litman [00:24:58] Okay, well that's all we have time for on this topic. Let's move now to our Sidebar.

Harry Litman [00:25:09] We're going to take a moment to explain some of the terms and relationships that you hear about in this podcast. And generally, when you hear about federal prosecutorial practice. So today Paul DePodesta is going to explain the structure of the federal courts, the three level structure of the district courts, federal courts of appeals, and the Supreme Court. I got to take a second to detail Paul's career for those of you who don't know it because he has forged for himself one of the most remarkable and interesting professional paths I've ever encountered. He played both baseball and football in college, which you'll see is very relevant and following the counsel of his lawyer father not to go to law school, he essentially created the job description of "data/geek strategist" that revolutionized baseball. His role is detailed in the movie "Moneyball." Then he became the Dodgers general manager at age 31, continued to have a huge impact on baseball in different roles and during his 20 seasons in many, in many roles. He was the only executive in the league to win divisional titles with five different organizations. In 2015, he was widely considered the heir-apparent for the Mets general manager job, one of the crown jewels of baseball. So he decided it was the perfect time to switch over to football, taking a job as Chief Strategy Officer with the Cleveland Browns with the mission of turning that lowly, even pathetic, franchise around. And now, four years in it looks as if he is on track to do that. Which I say with some ambivalence since it comes at the expense of my hometown Pittsburgh Steelers. Anyway as I say Paul is going to explain for us the structure of the federal courts.

Paul Depodesta [00:27:13] What our federal, trial and appellate courts? In the federal judicial system, the general trial courts are called district courts. District courts are where federal civil and criminal cases are first filed and decided. The United States and its territories are geographically divided into ninety four judicial districts. Some districts cover one entire state or territory. For example, the Federal District of Massachusetts. Other states are subdivided into several districts. SDNY for instance, is the Southern District of New York which includes Manhattan and the Bronx. It's right across the Brooklyn Bridge from the Eastern District of New York or EDNY. Each district has a number of district judges currently between 2 and 28. District judges and the states are appointed for life. They can never be removed from their jobs unless they engage in bad conduct. In the territories, judges are appointed for 10 year terms. District courts have the primary responsibility for determining relevant facts and applying the law to those resolved facts. Federal appellate courts review the decisions of district court judges to ensure that they correctly determined and applied the law. They can reverse decisions of the District Court for errors of law, but appellate courts usually will not second guess the factual findings of a lower court. The 94 district courts are grouped into 12 appellate circuits, eleven circuits are referred to by number from the first circuit to the 11th Circuit and the D.C. Circuit reviews only the decisions from the district courts of D.C. But this is a big job, because many cases involving the federal government are filed there. The decisions of the circuit courts are reviewed by the United States Supreme Court. The Supreme Court does not review every appellate decision but only those that it believes are important enough to require further review. If the Supreme Court decides not to grant certiorari, that does not mean it affirms the case. But just that it won't hear it. Nevertheless, that also means the case is completed or final. For Talking Feds I'm Paul DePodesta.

Harry Litman [00:29:23] Back to it. In the midst of this apparent unbreakable log jam Harvard professor and constitutional scholar Larry Tribe has offered a proposal that's already attracting significant support including several key endorsements on cable channels yesterday. Tribe's basic notion is a full impeachment inquiry in the House, including an opportunity for Trump to provide a defense but then not a referral for trial in the Senate. Rather a lesser outcome along the lines of a censure motion or a quote, "sense of the House resolution." So let's start with the question whether the Tribe proposal is constitutional and practically feasible. And then we'll turn to discuss the merits of the proposal. Elliot, I again, leaning on your experience up on the Hill can you give a sense of whether this proposal has some purchase and some feasibility or precedent up there?

Elliot Williams [00:30:32] I think it does. And here's the Congress makes findings and makes statements of the sense of the Congress all the time. It's essentially a vote from a House of Congress saying, "This is our view as the House of Representatives. These are our findings." And many pieces of major legislation start with findings where it literally begins with the words, "Congress finds the following..." you know, "we have a health care system, bah bah bah...", or, "our taxation system, bah bah bah." And that's a statement that Congress, as a body that has the authority to find and make official statements has found something through the committee process or through the hearing process or so on. If Congress wishes to say we have found that X fact has happened or X has occurred they can absolutely do that. Another thing to keep in mind, cuz we've, we've gotten caught in this impeachment versus not impeachment binary and we can talk a little more about the fact that Congress can censure a President and a little bit, going back to the 1990s, the whole point of the organization, Move-on-dot-org, if you remember they were founded with the name "censure and move on" because they were trying to make an argument for censuring rather than impeaching Bill Clinton. So it's another tool in Congress but they don't necessarily have to impeach him. There are just lots of different ways they can hold him accountable. And one such way is making a finding that he has done something wrong. So it's an interesting, legally interesting, proposal that Professor Tribe has put out.

Harry Litman [00:32:04] Asha what do you think, you know any, any precedent for it and how effective do you think it would be with the peculiar, I'll say psychological profile of President Trump.

[00:32:17] Yeah. So I think that there could be three advantages here. The first is that you can do what Tribe proposes. And I think even the censure, though I'm not as familiar with with that and how that works like that involves certain kinds of hearings before that happens or something like that. But I think Tribe's proposal specifically would still allow you to have the hearings and get the benefit of those, you know, the visuals and the audio and all of that. The second thing is he also mentions that you can do that procedure and give the President an opportunity to come and contest or you know present a defense of some kind. And I think that would add some legitimacy, in the sense they wouldn't be like, "Hey we railroaded through and came to this conclusion at the end there was actually a chance for there to be some not necessarily an adversarial trial kind of process but for someone to be able to clear their name." And I think the third and most important piece is that it offers the public, you know, some sense that there, there are middle grounds that it's not just all or nothing. And Harry to your point one of the untested variables in this whole equation, we always worry about will that Senate convict or not and all this stuff, is that Trump is incredibly thin skinned. You even mention impeachment and he goes bonkers.

Harry Litman [00:33:38] "Terrible disgusting bad word.".

Barb McQuade [00:33:40] If you started this process, whether it's censure, whether it's impeachment, anything that was like basically saying you're bad, I think he would just go bonkers. I think he would spontaneously combust. I think he would flip out on Twitter. He may try to do something that is so blatantly illegal and unconstitutional that then there would literally be no choice but to get him out. I don't know that we want to provoke him to that degree. You know, we don't want to start nuclear war or something like that but we don't know how unhinged he can become simply by the process getting rolling.

Harry Litman [00:34:10] Yeah it's funny I mean sometimes he tries or his advisers try to suggest it's a "briar rabbit strategy," you know come on that's how we're going to win the election. But, you're absolutely right. That you know that that pouting tirade on the, on the lawn just at the at the I-word. You know it it really did show how totally unhinged he got, and you made the point to me I think when we were talking before, that there was a, you know, a sense you're actually back in the 1820s, a successful one, whenever that was, of Andrew Jackson who in other ways, I think is a fairly Trumpian character and that Jackson smoldered about it for the rest of his life.

Asha  Rangappa [00:34:54] Yeah he apparently lost his mind and tried to get it undone, you know, for the rest of his life.

Harry Litman [00:35:00] Barb, what do you think about the effectiveness of this and maybe its likelihood of drawing even broader support?

Barb McQuade [00:35:09] Yeah I think it's useful to consider ideas that are beyond the all or nothing aspects of impeachment. You know, I think impeachment is a word that's largely misunderstood in general parlance by the public. I think when people say impeachment they don't understand that it means only charge. They think that it means removal from office, I think. And so when people start talking about impeachment, I think, people are not persuaded that we're there yet. And so rather than use that label of impeachment which is so loaded, I think brings with it a great measure of defensiveness. I think, just having an inquiry to understand the facts is something that's useful to the American people.

Harry Litman [00:35:47] That's a really good point. And on the will of the people idea, I read recently a piece about how the independent vote really shifted quite a bit you know in the spring and summer of 1974, eroding Nixon's support. So you know, it's possible it seems so entrenched but it's possible that there's a real segment of the electorate who would be moved and as you say, if they're not, maybe that shows the bigger remedy or you know nothing nothing more should be done. I'll say one more thing in its favor: the dynamic the entire couple years has been very frustrating because of the obvious strategic decision by the Republican Senate to hear nothing, say nothing, do nothing and completely ignore really not even take a position on obviously, you know, the most grave matters of presidential conduct. They could try to explain it away but they don't even try that and it's very, ever, every time you've thought about the House there's always this terrible, brooding Republican Senate there to block it completely and you know maybe it's an obvious feature of Tribe's proposal. But to actually have the ability to just sideline the Senate Republicans and not have them be this kind of immovable force I think really opens up the possibility of an actual national process and debate.

Elliot Williams [00:37:21] The Republicans in the Senate are the symptom not the problem. They are the, this, this extends across Republican elected officials in the United States but particularly both Houses of Congress. Now, the immediate problem is that if faced with the question of whether to remove the President of the United States, it's clear right now that they would not act. But that's not unique to Senate Republicans, because of the President's popularity with Republicans across the United States right now. No one seems to be challenging him on virtually any point, other than the profiles in courage that you see when an individual decides to work like a Jeff Flake and decides to retire. No one's really challenging the President generally. I think that that's the bigger civic problem we're facing here and we have to confront it in the context of this impeachment talk.

Harry Litman [00:38:08] Well I agree but I mean this is one way we would confront it. OK. That's all we have time for on that and in our discussion in general, except 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. So today's question comes from Georgina Pond, who gave it to us on Twitter which is a fine way to give it to us, everyone should feel free to offer it that way we definitely find them and consider them. And the question is: "Why isn't Mueller willing to testify at least about the ongoing problem for the 2020 election, of the possible interference by Russia and others and about the need to protect the election if he won't talk more about his findings why won't he testify about that?" So let's see, Elliot.

Elliot Williams [00:39:14] Don't worry he's gonna testify.

Harry Litman [00:39:17] Barb.

Barb McQuade [00:39:19] Preserving independence and avoiding politics.

Harry Litman [00:39:23] Five words exactly, a lot of syllables there.

Asha  Rangappa [00:39:25] Russia's how it all started.

Harry Litman [00:39:28] Not his role, Mr. Reticence.

Harry Litman [00:39:33] OK that's, that's our "Five Words or Fewer," and all we have time for today.

Harry Litman [00:39:40] Thank you very much to Barb, Elliott and Asha. And thank you very much listeners for tuning in to Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple podcast or wherever they get their podcasts and please take a moment to rate and review this podcast. 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 TalkingFeds.com where we have full episode transcripts. Submit your questions to questions at talkingfeds.com, whether it's for "Five Words or Fewer," or general questions about the inner workings of the legal system for our Sidebar segment.

Harry Litman [00:40:32] Thanks for tuning in. And don't worry as long as you need answers. The Feds will keep talking.

Harry Litman [00:40:43] 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. Transcripts by Kassandra Sundt special thanks to Paul DePodesta of the Cleveland Browns. And thanks as always 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.