TF_18 Ted Talks
Harry Litman [00:00:07] Welcome back to Talking Feds. A roundtable that brings together prominent former federal officials for a dynamic discussion of the most important legal topics of the day. Today we are privileged to be inside the Los Angeles offices of Congressman Ted Lieu. We're going to talk about the President's remarkable assertion that there's no problem receiving dirt from a foreign adversary. As well as the general state of play of the House's investigation into the counter intelligence aspects of the 2016 election. We'll then turn to a discussion of where things stand with respect to Congress's efforts to bring public attention to the more incendiary conclusions of the Mueller Report and a clear eyed look at whether the opportunity is possibly slipping away.
Harry Litman [00:01:02] I'm Harry Litman. I'm a former United States Attorney and Deputy Assistant Attorney General and a current Washington Post columnist. Today we've assembled another fantastic quartet, or at least trio plus me, of authoritative voices on these topics.
Harry Litman [00:01:19] First we're very pleased to welcome for the first time to Talking Feds, Professor Laurie Levenson of Loyola Law School. Laurie served here in Los Angeles as an assistant United States attorney in the criminal section, where she was a trial and appellate lawyer for eight years, becoming senior trial attorney and assistant division chief. She's been one of the chief public authorities on prosecutorial practice for many years since well before it became a cottage industry in the Trump years. Welcome to Talking Feds, Laurie Levenson.
Laurie Levenson [00:01:55] Hi Harry. Thanks for having me.
Harry Litman [00:01:56] We are also joined by returning former FBI agent Josh Campbell from CNN. Josh is a former supervisory special agent with the FBI and served as Special Assistant to the FBI director. His bureau career included conducting terrorism, kidnapping and cyber investigations, as well as serving overseas in U.S. embassies and embedded in faraway places with military special operations teams and the CIA. He continues to be an officer in the Navy Reserve and teaches national security at the University of Southern California. Josh thanks very much for coming back to Talking Feds.
Josh Campbell [00:02:38] Thanks Harry. I wondered how the first appearance when I guess when you invited me back.
Harry Litman [00:02:42] Yeah, yeah. [Laughs] You're in there, yeah.
Harry Litman [00:02:43] And finally, we have the huge honor to welcome Congressman Ted Lieu to Talking Feds for the first time. Congressman Lieu represents California's 33rd Congressional District in the United States House of Representatives. He sits on the House Judiciary Committee and the House Foreign Affairs Committee and was elected by his Democratic colleagues to serve as a co-chair of the Democratic Policy and Communications Committee. Ted is a former active duty officer in the U.S. Air Force and he currently serves as a colonel in the reserves. Welcome Congressman and thank you so much for joining us today on Talking Feds.
Rep. Ted Lieu [00:03:27] Thank you, Harry. It's an honor to be here.
Harry Litman [00:03:30] Okay let's dive in. In an interview earlier this week with George Stephanopoulos, President Trump came out with one of his stunningly brazen assertions namely that he would be open to listening to a foreign countries opposition research against his 2020 rival. And that really there was nothing wrong in saying that a candidate should report such interference to the FBI. He might do it or he might not. Congressman Lieu, you call that "an unpatriotic" statement. What did you mean by that?
Rep. Ted Lieu [00:04:07] Thank you Harry for your question. What Donald Trump said was un-American unpatriotic and unbelievable.
Laurie Levenson [00:04:14] And illegal.
Rep. Ted Lieu [00:04:15] And it happens to be against the law, that the conduct he described under the Federal Election Campaign Act, very specifically, says that a candidate cannot accept anything of material value from a foreign power. And so I hope Donald Trump would get briefed by his legal team.
Harry Litman [00:04:32] And what do we mean by foreign power there he used the example of Norway. Would that count as a foreign power and would that be a game changer?
Josh Campbell [00:04:42] So yes it would. But let's be clear at the outset, the Norwegians are not sitting there trying to plan how to interfere in the U.S. election. We're talking about hostile adversaries. We've talked about Russia. We're talking about China. And I think what this essentially did is two things first. It served as a welcome mat for these countries to come on in. And if you weren't already plotting how to interfere in the U.S. election in 2020, now the President has signaled that he's open to hearing from you. So, if you're sitting in these intelligence centers how can you not prepare for that. I think the second point is that this is probably the most troubling thing that we've heard from the president to date. And the reason I say that is because we're used to him defending himself from past allegations even if what he's defending himself against turns out to be true. Right? But this is troubling because he's essentially forecasting in the future that he's willing to commit a crime down the road and that's very troubling.
Harry Litman [00:05:31] And Laurie to you were suggesting it's illegal and when do you mean by that?
Laurie Levenson [00:05:34] I just think it's remarkable. You know I have with me my trusty Mueller Reportand it lays out very clearly as the Congressman said, that it would be illegal to take this information things of value and you know he didn't get charged under the Mueller investigation. But it's almost as if he took it as, "Well then I can keep on doing this." And the only reason that the Trump campaign didn't get charged is that there was no coordination, there was no conspiracy. But now that he knows it's not OK to do, that there's a federal law against it, then to sort of send out the message as Josh says, encouraging people "come forward with this information." I don't think you might necessarily get the same pass.
Harry Litman [00:06:12] Yeah. It's kind of stunning and down, you know, this path lies madness. But let me just ask and as with his other more bizarre assertions, do we really think he believes this or is it just being provocative or somehow trying to whip up the base? What, you know, on something like this it seems so implausible, but is it you know maybe he's just completely ignorant about the law and thinks, "Well whatever I say the law as it is.".
Rep. Ted Lieu [00:06:41] I think his view is whatever helps him he will support and do. And I think in his mind if he can get opposition research on an opponent doesn't matter where it comes from. Problem with that is it's un-American if it comes from a foreign power. And it's also illegal.
Laurie Levenson [00:06:57] And I just think it's he's trying to project this sort of tough guy image like, "Come on. This is how we all know politics is done.
Harry Litman [00:07:04] Right. Right.
Laurie Levenson [00:07:04] But I don't think all politics is done that way. I do think that there are decent patriotic people who would say, "I don't want the Russians interfering even if it's of advantage to me." It's not an advantage to the country.
Harry Litman [00:07:16] Every analogous situation that we have, were instances in which the campaign or the American entity immediately did report to the FBI. I don't think this... I think this is unprecedented in actually what's in the Volume I Report of just, you know, bring it on and that's great it helps me, why do I care.
Josh Campbell [00:07:35] No you're right, and I think that a lot of people you know like us who stare at these issues and stare at what the White House, stares at what the president does. We know, there's a certain reality here as it relates to his future and there's long been this question as far as whether the Southern District of New York poses a bigger challenge to him, perhaps than Robert Mueller did. And so there's this theory out there that if he loses re-election based on statute limitations on some of these possible allegations and maybe against him and his companies and you know the foundation and the like, he may be prosecuted. But if he wins election, a re-election rather, on some of these instances he may actually go beyond that statute of limitations so the, my point is that his entire life might be on the line here as far as his freedom as it comes to winning re-election. So, of course he's going to do whatever he can to get re-election as he signaled to the country and to the world, he's, that also includes opening the door and welcoming help from a foreign government.
Rep. Ted Lieu [00:08:29] Now, he needs to be I think careful that's really what he intends. It's not clear to me that after four years the same foreign governments would think the same of him that they did a few years ago.
Harry Litman [00:08:41] What do you mean by that?
Rep. Ted Lieu [00:08:42] I think if he's going to say, "Hey you're all just come and try to interfere in American elections," you've lots of foreign governments that don't particularly like the American president.
Laurie Levenson [00:08:53] And don't forget that there have been foreign officials that have actually been indicted even by Mueller. And the other thing about what he said that really troubles me, is the disdain for the FBI and law enforcement. You know it's one thing for him to say well I don't think it's a crime for me to listen on the phone. But for him to say, "look but I'm not going to allow those individuals who actually worry about this interference who have the legal obligation to investigate it, I'm not going to clue them in that there could be a problem here." We would want every American.
Harry Litman [00:09:23] Yes. So what about that, Josh. I mean he basically directly contradicts FBI Director Christopher Wray.
Josh Campbell [00:09:30] I would say more than contradict I would say he undercut him.
Harry Litman [00:09:33] Yeah. Yeah.
Josh Campbell [00:09:33] By saying you're wrong. That the FBI Director is wrong.
Harry Litman [00:09:35] What position does that put him in? What are what are his sort of options now? How do you, he's, he's the latest in the series of federal officials who's service under this President is incredibly awkward. Where do you see Wray now responding to this diametric opposition from Trump?
Josh Campbell [00:09:55] So I think he has three options I think realistically only two of them are actually tenable. The first thing he can do is nothing. Stay quiet. Right. Absorb the blow. I don't think that's tenable because the FBI has already been through. So much over the course of the last three years that for yet another call that essentially undercuts their actions to go unanswered I think would be unfortunate. So he's got two options The first thing he can do is speak up and say look this is wrong. This is against the law, what the Preisdent of the United States did, or what he said, is not consistent with the law. And that signals to his own troops that he takes these issues seriously but also to the American people, that the FBI will do its work and investigate crimes wherever they lead including the president in 2020 if he actually makes good on his, what he, what the President claimed. The third option is he can pack his bags and all of us who have served him government know that at some point you know, that's always a reality perhaps that if you think that you're no longer effective or in senior leadership positions that you're being undermined then that's, or there's something so egregious that you can't do your job, that's an option, is to resign. So I think realistically he's got to speak up. The other option would be to leave. That's up to him. I do think that's what is really interesting and this is actually, I fault the Department of Justice for this under the current leadership, is let's look back just this week at which federal agency was the first to stand up and say, "Mr. President you are wrong." It wasn't the Department of Justice. It wasn't the FBI. It was a Federal Election Commission. The chair yesterday coming out with a very scathing statement essentially saying and I think in her tweet she actually said, "I can't believe I have to even say this. It's so obvious. But yes, taking information from a foreign government is illegal. And the last thing she mentions to the point made earlier is that if you get information it is your duty to call the FBI.
Rep. Ted Lieu [00:11:35] I think Christopher Wray also has some cover because you have Republicans also saying the President was wrong. Recently, the ranking member of the House Foreign Affairs Committee, Reprensative McCaul went on TV and said, "You need to call the FBI." That, essentially what the President said was wrong.
Harry Litman [00:11:50] Yeah. And I mean you would think this is completely obvious. But now you don't know where the Attorney General is going to be and in particular where people hoped that William Barr would be someone who would also support the institutional mission and prerogatives of the FBI. It turns out that to date, he's been completely in Team Trump, you know, in that camp. And so if Wray winds up making a principled stand he may well be at cross purposes with that the Attorney General.
Laurie Levenson [00:12:25] Well you know I do wonder how much Trump gets away with, "No one really takes that seriously. What I have to say. You know, all I'm saying is that politics is a rough and tough and you know and we get these calls, everybody gets these calls, but you're interpreting me like I'm a lawyer giving an analysis of this and that would be wrong. I'm just saying that. Yeahhh, you know, if they really called and said look I'm going to undermine America. Maybe I'd do something differently. But hey, opposition research..." And of course the first thing he does is point to Clinton everything is a distraction.
Harry Litman [00:12:56] Yeah. Do you agree with that though Ted, that it's he's basically making the pitch that anybody would do it and there's really no problem here?
Rep. Ted Lieu [00:13:08] He's making that pitch it's just factually wrong because foreign powers actually don't approach candidates unless they think you're susceptible to that. So it makes you wonder, why would he think that foreign powers routinely approach candidates? That they actually don't. They approached him, and his campaign because they believed that his campaign could be susceptible to influence from a foreign power. And if you look at the Mueller Report it lays out a huge amount of contacts with the Russians the Mueller Report...
Harry Litman [00:13:37] Yeah, a couple hundred almost? Yeah?
Rep. Ted Lieu [00:13:38] Correct. So, Mueller could not find sufficient evidence to charge a criminal conspiracy. But he lays out a lot of what looks like collusion.
Harry Litman [00:13:48] Yeah. And by that you mean there's actual welcoming and encouraging and, of foreign interference, and...
Rep. Ted Lieu [00:13:57] Correct. He also finds if you sort of read it, that in fact the campaign and the Russians were taking actions and response to each other. He just defines that as not legal coordination. He's very specific about it, he says his legal coordination requires something beyond that. Which I think he's actually wrong on, but, he...
Harry Litman [00:14:15] Why so?
Rep. Ted Lieu [00:14:17] Because he just look at normal terms of coordination. That to me would be coordination.
Harry Litman [00:14:21] So you think there would be like you see sufficient evidence, in the Mueller Report Volume 1, of an agreement?
Rep. Ted Lieu [00:14:28] No but one party taking action in response to what another party does.
Harry Litman [00:14:32] I see.
Laurie Levenson [00:14:33] And I think that what was lacking, at least Mueller thought was lacking, was really affirmative encouragement by the Trump campaign. It's like they would take the meeting but they didn't sort of say, Bring it on. But now with Trump's remarks it does interpret a lot like "Bring It On."
Harry Litman [00:14:47] Yeah, what about that.
Josh Campbell [00:14:47] Well, you're, you're right and I think that you know all of us would probably agree that just because you're bad at colluding doesn't mean that you tried to collude, right? And I think Mueller offered them a gift by not fully probing you know their actual actions and because the Trump Tower meeting for example didn't actually yield fruit. He didn't decide to go after and acctually you know, uh, charge them with anything. But that doesn't mean that they were operating righteously and I think that again what did you bring us back to the President's comments, what's so troubling about it, is not only again he's signaling he's learned nothing essentially, but the second thing is that you know we expect our president someone in that position, you know the standards shouldn't be, Well what is illegal? It should be well, what, what is right? How do we want our leaders operating in an ethical way, even if it doesn't technically cross a line which I think that this actually does by the way. But what is just so striking just if you look at it on its face is every single day in this country you have authorities in law enforcement that are imploring the public, "If you see something say something pick up the phone call law enforcement. The president's response to that, and I quote is: "Give me a break. That's not the way life works.".
Harry Litman [00:15:50] Right. I guess in some ways the $64,000 question is whether this is working? So, now we have the President being completely brazen about saying, "Uh, this is the way it works. You know, give me a break." Do we think that in fact that pitch works, in, with the, with the American people at least enough to kind of freeze the linebackers and have enough of a political support that there's no cost to saying what strikes all of us as as being a really you know outrageous incitement both to break the law and to compromise the national security interests of the United States? Is this another one he gets away with?
Rep. Ted Lieu [00:16:35] I think Abraham Lincoln had a right when he said, "Public sentiment is everything. Within nothing can fail. Without it and nothing can succeed." So, every time Donald Trump does something outrageous, un-American, or unpresidential, it reminds the American people of exactly those things, which is why his poll numbers are very, very low and the continual acts of brazenness that he is doing, you might not think it is hurting him, but I think it's hurting him if you just look at polling across America. He is simply not able to break out of his very low poll numbers and this continues to keep him low.
Laurie Levenson [00:17:13] You know, I don't know because all the rules don't seem to apply to Donald Trump.
Harry Litman [00:17:17] Stunning isn't it?
Laurie Levenson [00:17:18] It is stunning. And so you would expect this would be a situation where they would not only be a legal reaction but a congressional reaction to a public reaction. But there's so many distractions with the upcoming debates that are going on or the decision of whether to go with impeachment. It seems like no one issue sticks on this president.
Josh Campbell [00:17:38] So I think that he knows that he messed up and the reason he knows he messed up is because he tried to clean it up on "Fox & Friends".
Harry Litman [00:17:43] Yes. Yes.
Josh Campbell [00:17:44] And essentially said what he said was not what he said which is we've gotten used to by now. And one of his spokespersons, actually she came out and said that we'll take this on a "case by case basis," which going back to Represenative Lieu's point, like, you know, how much foreign interference are you expecting here? That you're setting processes.
Harry Litman [00:17:59] Is that foreign? And is it interference? That would be the case by case.
Josh Campbell [00:18:03] Exactly. But I think at the end of the day and you know as the Representative mentioned it's, you know it's about public sentiment. So the American people stare at this and wonder wow he's learned nothing. And he's actually signaling he might actually conduct criminal activity. What also is interesting I'm speaking a little bit of turn, because I'm not elected member of Congress, I defer to te Gentleman from California on this, but, I think that this is more fodder for the House of Representatives as they seek to hold this administration accountable. This is one more data point that the President again is signaling that he is open to conducting, uh, engaging in criminal activity in the future which I think is important that none of the public hear it. But also the Congress.
Laurie Levenson [00:18:37] But I think it's actually really, really important. I want to thank the Congressmen, that you can have these elected officials out there saying, "No, this is not the way we get elected. That's not how we think of the nation. It's not the standards that we want." Those voices are really, really important now.
Rep. Ted Lieu [00:18:53] In fact, we had a conservative paper reach out to us saying they're asking every member of Congress the question of: "Has a foreign power ever you know contacted you to help you and would you report that the FBI?" So you have conservative outlets, who are very troubled by what the president said.
Harry Litman [00:19:11] Yeah. And remember he's governing from the start on a real knife's edge. If you compare say the Watergate example. There was a time where the independent sentiment was all against impeachment and then things changed a little bit. And here they're so frozen that a movement of five or ten percent could actually change the calculation at least in the house. It's hard to see the Republican Senate ever actually waking up and doing its constitutional duty, right now.
Harry Litman [00:19:49] OK. That's all we have time for on this topic. Now it's time for our Sidebar feature which provides some basic information about federal prosecutorial practice and constitutional law. And we are very privileged today to have Laurence Tribe, the Carl M. Loeb University professor at Harvard Law School and, perhaps the pre-eminent constitutional law scholar in the United States. He is going to explain the obligations of the prosecutor to provide favorable evidence to defendants under the Brady vs. Maryland case.
Laurence Tribe [00:20:38] Under the Due Process Clause of the Constitution, the government must turn over any evidence that is favorable to a defendant, called exculpatory evidence, in its possession that is material to the defendant's guilt or punishment, when a defendant requests it. The right to obtain exculpatory evidence was established in a case called Brady vs. Maryland. In which Justice Douglas wrote that society wins not only when the guilty are convicted but when criminal trials are fair. Brady material includes evidence tending to exonerate a defendant or implicate a different suspect. As well as evidence that would tend to impeach the government witnesses or undermine the government's case including incentives to witnesses to testify for the prosecution. Evidence that contradicts a government's witness or information that law enforcement agents involved in the case have a record of lying on official documents. Because Brady places an ongoing obligation on the government, a prosecutor must maintain contact with the investigators. And disclose additional evidence they subsequently learn that tends to exonerate a defendant. Another federal law called the Jencks Act, requires the government to produce recorded and written witness statements of testifying witnesses upon request. Violations of Brady entitle a defendant to a new trial. Or as with Brady vs. Maryland a new sentence. However a major limitation of Brady is that it only applies to material evidence meaning evidence that would have a reasonable probability of changing the outcome of the proceeding. If a court concludes that the evidence would probably not have changed the outcome it will not find a violation. For Talking Feds, I'm a constitutional law professor Laurence Tribe.
Harry Litman [00:22:47] Thank you very much Professor Tribe. We are really privileged to have you as a friend of the podcast.
Harry Litman [00:22:55] I'd like to talk a little bit about the general state of play in Congress at this point. We are many weeks in to the revelations from the Mueller Report and Congress seems to be getting foiled at every turn, for actually describing and portraying to the American people just what happened. Are we at a point where Congress's ability to actually drive home the big lessons of the Mueller Report is failing? And it will won't be able to come forward? Congressman Lieu, I know that you have specifically suggested that it's time for a formal impeachment inquiry. What's your thinking in calling for that? And just in general, what do you see as the state of play right now with Congress's attempt to actually bring home the lessons of the Mueller Report?
Rep. Ted Lieu [00:24:00] Thank you Harry for your question. I have expressed my personal opinions to Speaker Pelosi and there will be a decision that the Speaker and the Caucus makes and I respect that decision. In the meantime, we are trying to bring the Mueller Report to life. And so we recently did have a hearing with John Dean and former federal prosecutors, walking the American people through their eleven or so instances of obstruction of justice. It also happened that day that there was a helicopter crash in New York. So things happen in the news cycle that you can't control. But we're going to have additional hearings on the Mueller report about the facts in the Mueller report, while also winning court victories. So we've won three court victories in terms of getting information from the Trump administration. Hope Hicks is going to testify and we're going to get additional fact witnesses because their legal reasoning for preventing witnesses from showing up as a bunch of B.S.
Harry Litman [00:24:55] Yeah. Let me follow up on the Hope Hicks point. She is going to testify but behind closed doors as I understand it, though it'll be transcribed, a similar, you could say, victory was was won by Donald Trump Jr. in actually testifying but again behind closed doors, and that means the lost opportunity of having the American people actually see what they have to say. What's your sense of why Congress permitted this arrangement? And, how much do you think it matters that we're not actually getting to see that kind of TV moment that we had in Watergate, say of people under the lights.
Rep. Ted Lieu [00:25:35] That's a great question. I think the House Judiciary Committee is going to see how this goes. We're going to see how effective this is. Does it matter for a witness that they're testifying behind closed doors. Um, the transcript is going to come out. And we also know that Hope Hicks was going to not come in at all. And so this was a victory to have her show up. And, this sets a precedent right that, hey look you have witnesses at least coming in, and in the future we believe we'll get more fact witnesses and some will be behind closed doors, some will not be.
Harry Litman [00:26:08] Who would you like to see most, if it's actually the case that some fact witnesses will come forward?
Laurie Levenson [00:26:13] So, you know, I may be off course here but frankly I would have had Bob Mueller testifying on camera. If all you did was ask him to read page such and such of your report or such and such of report because I think those images and voices are important to the American public.
Harry Litman [00:26:27] Well that's not foreclosed, right?
unclear speaker [00:26:27] That may happen.
Laurie Levenson [00:26:29] You know, because I can understand where he says, I'm not going to give you anything more than the report. Fine. Just read your words because everyone else is spinning your words and they sound differently coming from Bob Mueller. And the image is different coming from Bob Mueller. I worry a little bit that the time works against, you know, that careening against the house getting that message out. So I understand things are in the works and I appreciate people have to be careful. But you've got two different things going on here. You've got the legal proceedings and then you get the American public sort of deciding when they get tired of this. And if you don't do it soon, I'm worrying that people will move on.
Harry Litman [00:27:06] Well not only that. You know what kind of time pressure are we under, Josh?Because two weeks from now say, there's the first Democratic candidate debate and everything will all of a sudden be affected by the 2020 election.
Josh Campbell [00:27:21] Well, I think it's it goes to that public sentiment that we've been talking about here and I think that with this new cycle being what it is these days the American people will just move on and we know that the strategy of the White House...
Harry Litman [00:27:32] Move on, meaning, just...?
Josh Campbell [00:27:32] To whatever the next issue is. I mean the strategy the White House has been, "Ih that old thing it's done.".
Laurie Levenson [00:27:37] Right.
Josh Campbell [00:27:37] I think your colleagues in the Senate have said, "Case closed," right? "We're ready to move on." Which obviously those of us who know about the law know that there are serious issues that are still lingering out there.
Harry Litman [00:27:46] Ted, I see you nodding your head. Do you think that that is the strategy and do you think it's working?
Rep. Ted Lieu [00:27:52] That's absolutely the strategy. We'll see if it works. One of the things that's going to happen is you're going to have a lot of bad information come out later on this year or early next year. I'm not sure that...
Harry Litman [00:28:05] Bad as in, prejudicial to the President?
Rep. Ted Lieu [00:28:08] Correct. because they're merely delaying what's going to happen which is essentially the core cases are going to be in favor of the House of Representatives because legally they simply have very silly arguments. So you're going to have bad information come out close to the election. I'm not sure that's all that helpful to the President.
Josh Campbell [00:28:25] Yeah, no. And I think, and I agree with with all that and what Laurie was saying as well about Mueller. And one thing that's been really interesting is how you know full disclosure I worked for Mueller, I've also been very critical of Mueller since his press conference or I wouldn't call a press conference, more of a statement because I think that someone in his position, it's incumbent upon him to volunteer himself to face the cameras and to face questioning. This is all a lifelong public servant and a national hero. It would be unfortunate if his last final act here, possibly, on the national stage as it relates to government is somehow manipulated by House Republicans into claiming that what he found, he didn't find. And by the Attorney General intercepting that pass, in my judgment and the judgment of others, that was rightly meant for Congress to decide what to do with this voluminous Mueller Report. And so I've been, I've been, I've been critical of him, I hope that he will make himself available because I agree that there's nothing like hearing him in his own voice. And the last thing I'll say having worked from him back in the day is that there have been instances where he went and testified before Congress not expecting to make news. And they dug it out of him. [laughter] He did make news. So I think that regardless of what his strategy is going forward even if he wants to stick to the four corners of his report, I think, that there are some aggressive questioners in the House of Representatives who include some former federal prosecutors, who will probably make some news.
Laurie Levenson [00:29:41] And I'm wondering if there's a way to keep it fresh honestly. Which is to say you know we're not looking back or looking forward to the next election especially with a President who disregards what the laws say on campaign laws and the like. So if we were going to let it go before we can't let it go now because maybe people are getting the wrong message. Maybe they need to have the message that the Mueller report really said.
Harry Litman [00:30:02] Yeah, well, well, what about that? Because we actually learned to somewhat our surprise, that he didn't really focus on the counterintelligence investigation. If you want to make this point going forward, whom do you make it through?
Josh Campbell [00:30:15] So I think and again I would defer to Congressman Lieu who knows more about this than I do, but we just heard from Congressman Schiff who was actually calling upon the FBI to provide a Gang of Eight briefing on the counterintelligence investigations, as I understand it from his statement the FBI is refusing to even say whether or not there's an ongoing investigation. And I know, you know again from having worked there on the seventh, seventh floor of FBI headquarters, that these gang of eight briefings used to be routine. If there was something that was so important the Congress needed to know, they would provide this information. Now I think Congressman Nunez destroyed that under his leadership, that trust, and to the extent that the FBI was actually afraid to brief things to the Congress for fear that Represenative Nunez would then leak it to the White House. But it's a new leadership now, right? And so I think that it's incumbent upon the Bureau to at least they don't have to let the public know at this juncture if it's so sensitive that there are all these things that they're doing but they at least have to let the congressional overseers know what's going on. Otherwise it's left to the Department of Justice to be the final arbiter. And I don't think that under this current regime, in charge of the Department Justice, that there's a lot of public confidence that they're doing their work absent a little bit of control or perhaps interference from the White House.
Rep. Ted Lieu [00:31:17] There are six committees of jurisdiction looking into various issues. So the Intelligence Committee is going to look at their counterintelligence aspect of what happened. The Judiciary Committee will look at crimes such as obstruction justice, witness tampering, dangling pardons, witness intimidation and so on. You've got the House Ways and Means Committee looking at taxes. You have the Financial Services Committee looking at potential money laundering. You've got oversight committee looking at every other random bad thing the administration has done. So these committees are continuing their investigations and informations going to keep coming out much of which is not going to be great for the President because otherwise they wouldn't be trying to hide it.
Harry Litman [00:31:55] Yeah. And what's your sense of the degree of coordination among these committees? Is there an overall kind of strategic consensus led from Pelosi to, you know, you do this, you do that, and a kind of consensus about how aggressive to be?
Rep. Ted Lieu [00:32:12] They have meetings all the time. [laughter] I think the confliction, in making sure you don't call the same witness to five different committees. So those meetings are happening all the time.
Harry Litman [00:32:22] And is there if you can tell us a much conflict there? Is there a general agreement about you take this, you take that and...
Rep. Ted Lieu [00:32:31] There's general agreement, [crosstalk] the committee chairs have been working very well with each other, as as well as with House leadership.
Harry Litman [00:32:38] Is there a way working through Congress for us to give the basic facts of the investigation to the American people? And how is it going to work out how sanguine are you that in fact the American people will get the overall facts of what has happened here and be in a position to reach a kind of national consensus about how we should proceed to investigate and, if justified, respond to it?
Laurie Levenson [00:33:09] Well, you know, I think the public has always loved high profile trials and you're kind of wondering where I'm going with this. But, I think when they look at Congress they don't have the patience and they don't have, in some ways just sort of the institutional memory that to watch a congressional hearing, you read the reports. They want drama and we saw that, whether it from the you know, the confirmation hearing to the like. So, you know I hate to put on the Congress this responsibility but if you can get one witness in there, and it grabs the attention by having that witness sort of say, "These are the facts." And be subject to cross-examination and be responsive to it, the public will pick up on that.
Harry Litman [00:33:51] So who are the candidates here, we're talking about the what in Watergate was maybe John Dean or maybe Butterfield, who, who is the dramatic kind of Rubicon crossing moment that could rivet the American people?
Laurie Levenson [00:34:04] And that's what I don't know. And I have a lot of respect for those in the House who are trying to figure out who is the person who's going to get up there and basically not stab us in the back and give it to it straight to the American public.
Rep. Ted Lieu [00:34:19] I think Don McGahn would be a good candidate. The President again went on national TV and called him a liar by the way...
Harry Litman [00:34:26] Was it, yeah, that was that was unbelievable. Right. He now, I think Trump now understands his real exposure for obstruction with the use of McGahn. So now all of a sudden McGahn is just simply you know a liar as you say.
Rep. Ted Lieu [00:34:42] [00:34:42]In addition, the White House has waived executive privilege a gazillion times. But now one more time would basically Donald Trump talking about these very facts that they're claiming privilege over. There's no way they would stand up in court. So we are going to get McGahn to testify at some point. They really have no legal basis to withhold his testimony. [18.4s]
Harry Litman [00:35:00] And he may be reluctant about it but he's a guy who is going to tell the truth, right? He's got a future in Washington. He's already achieved what he has to achieve with the administration. And he's got you know all of this sort of evidence including from the written evidence that his deputy kept. I think he will in fact give it straight if he's forced to. Josh?
Josh Campbell [00:35:24] I think you're right. I mean I think there was placement there, there's access. Obviously, he's again as we mentioned he's already drawn a little bit of ire from the White House so I think that we could probably expect him to you know to lay out to extent that he knows what went on. It's, it's important in the public interest. I do think that as it relates to you know, what the public option is, or what the members of the public can expect as far as getting to the bottom of what exactly happened. I don't know what other option there is except Congress. Again, you look at the Department of Justice and to go back to the current leadership and I was one of those people that when William Barr came on the scene I was one of those saying, hey let's give him the benefit of the doubt.
Harry Litman [00:36:03] Me too.
Laurie Levenson [00:36:03] Me too. Me too.
Josh Campbell [00:36:03] This is an institutionalist. You know, Boy was I wrong. You know adopting the witch hunt lin-, lingo of spying and the like.
Harry Litman [00:36:10] And just the overruling, basically of what clearly was Mueller's conclusion that there was obstruction.
Laurie Levenson [00:36:18] And here's what I don't ...
Harry Litman [00:36:19] And again, with no written... Right now. This is the official word of the Department of Justice and it's got no analysis. No anything to even be able to assess. It's just Barr says there was no crime here.
Laurie Levenson [00:36:34] But I don't know what the rest of you think. But when I watched Barr testify, I thought he looked bad. I thought that he looked not very prepared. He looked like an advocate he didn't look like an attorney general. So, I don't know if it matters that you get somebody who's 100 percent on the side of, you know, we want to get this out.
Harry Litman [00:36:50] I think so.
Laurie Levenson [00:36:51] I think the American public is smart enough to see somebody who looks like they're hiding something.
Josh Campbell [00:36:55] Yeah, and what whoever the witnesses I think again going back to the vehicle of Congress that, you know, again the American people they need to know what happened. And because we have a DOJ whose leadership is at least in question as far as you know where their loyalties lie. Whether with the country or with the White House. I think that you know there's, no pressure Congressman, but [laughter] you know, it's, I think, the American people are craving reality. You know we're lied to every single day, multiple times per day about things big and small. And so I think it rests with that legislative body, the representatives of the people, to get to the bottom of what happened. And [at] least, I'm happy to see that there is an aggressive group that's working to do that.
Harry Litman [00:37:32] It does seem to me though Laurie's point that in fact the Barr assessment of things hasn't really taken hold. It's still considered an open question whether or not you know the President committed crimes. I think it's fitting to try to and with the Congressman's thoughts about what is on the immediate horizon and whether or not your sanguine about the truth coming out and the American people having a kind of judgment of the gravity of the behavior here.
Rep. Ted Lieu [00:38:05] So the entire Democratic caucus plus one, Republican Justin Amash, we do all agree that we need to continue these investigations to look at exactly what happened and how do we bring to life to the American people. And those are going to continue. It's been slow because the Trump administration has engaged in an unprecedented amount of obstruction of justice versus Congress. But they're losing in court. And as a result of that they are now cutting deals with Congress. So for example, now we can go see the underlying evidence of the Mueller Report. For a very long time to our injustice denied that. So they're going to start rolling production. We will start seeing a lot of that next week. You have Hope Hicks coming in. You've got that the Department of Justice also agreeing with the Intel Committee to provide documents on rolling basis. So this is happening. It is slower than I would like but that's because of the Trump administrations obstruction. But the American people are going to get their information.
Harry Litman [00:39:04] What's your sense of the impact it will have on the American people? Do you see a possible breakthrough in what has seemed to be a kind of collective shrugging of shoulders?
Rep. Ted Lieu [00:39:16] A recent poll came out showing that independents nearly doubled in terms of those who actually support, for example, an impeachment inquiry. And so what you saw in Watergate is a lot of people were opposed to it. And then you started having hearings and then public sentiment shifted. So, we'll see what happens with these hearings over the summer and we'll see if public sentiment shifts.
Harry Litman [00:39:38] Yeah. I mean that's a great point if there actually are kind of television moments of people testifying and giving facts there, then people can zero in in a way they just won't with a 448 page report.
Harry Litman [00:39:52] OK. So our Five Words Or Fewer question comes from Freddie Johnson from Twitter who asks: "Why would Robert Mueller investigate, if he believed he had no power to indict?" Five words or fewer. Laurie?
Laurie Levenson [00:40:10] Because someone has to.
Harry Litman [00:40:13] Nice.
Rep. Ted Lieu [00:40:13] I like that one.
Harry Litman [00:40:15] Josh?
Josh Campbell [00:40:16] He wanted congressional action.
Rep. Ted Lieu [00:40:18] To inform the American people.
Harry Litman [00:40:21] To provide a historical account.
Harry Litman [00:40:25] All right. That'll do it for this episode of Talking Feds. Thank you very much to professor Laurie Levenson, Josh Campbell, and especially to Congressman Ted Lieu. And thank you very much listeners for tuning in to Talking Feds.
Harry Litman [00:40:42] 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. You can follow us on Twitter @TalkingFedsPod to find out about future episodes and other Fed's related content. And you can also check us out on the web at Talking-Feds-dot-com, where we have full episode transcripts. Submit your questions to questions@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. Thanks for tuning in. And don't worry as long as you need answers the Feds will keep talking.
Harry Litman [00:41:34] Talking Feds is produced by Jennie Josephson, Dave Moldovan, Anthony Lemos and Rebecca LoPattin. David Lieberman is our contributing writer. Production assistance by Sarah Phillipoon. This episode was recorded by Bill Lancz. Transcripts provided by Kassandra Sundt. And thanks very much to the staff of Congressman Ted Lieu for all their help putting together this episode. Special thanks to constitutional scholar Laurence Tribe the Carl M. Loeb University professor at Harvard Law School and thanks to the incredible Philip Glass who graciously lets us use his music. Talking Feds as a production of Dalito LLC. I'm Harry Litman. See you next time.