TF 07: Redaction Reaction

Printable Version

Harry Litman [00:00:00] Talking Feds is brought to you by Constantine Cannon. Constantine Cannon has extensive experience representing whistleblowers under both federal and state whistleblower laws. Their team of attorneys has an unsurpassed record of success. Learn more at Constantine Cannon dot com.

Harry Litman [00:00:25] [MUSIC] Welcome back to Talking Feds, a prosecutor's roundtable that brings together prominent former Department of Justice officials for a dynamic discussion of the most important legal topics of the day. Today we're in Washington D.C. and talking about the question that is really on everyone's mind, the Mueller Report and the redactions in it that are going to be delivered within the next few days. And then we will turn to a brief discussion of the Julian Assange arrest and prosecution, and the different both practical and you could say moral issues or constitutional issues raised by that arrest.

Harry Litman [00:01:08] I'm Harry Litman. I'm a former United States Attorney and Deputy Assistant Attorney General. I'm also a former Assistant United States Attorney or line prosecutor and a Washington Post columnist. [END MUSIC]

Harry Litman [00:01:21] Today I'm joined by several Feds with ideal experience for the juncture we find ourselves at now. First, Amy Jeffress. Amy is a partner at Arnold and Porter, and she was the former Justice Department Attaché to the U.S. embassy in London and former counselor to the Attorney General. And before that, I know when I worked with her, a counselor to the Deputy Attorney General. In between, she was an Assistant U.S. Attorney for how many years?

Amy Jeffress [00:01:50] Thirteen.

Harry Litman [00:01:51] And tell, tell us a little bit about this attaché job, which seems very interesting.

Amy Jeffress [00:01:58] That was a great job. The Department of Justice has about ten overseas attaches, and London for obvious reasons is one of the most sought-after positions. And you assist the U.S. and the U.K. governments in collaborating on criminal investigations, so anything from terrorism cases to the Libor investigation, which was going on while I was there.

Harry Litman [00:02:19] We're very pleased to welcome Julie O'Sullivan, who's a professor of law and associate dean at Georgetown Law School. She was before that a clerk to Justice Sandra Day O'Connor on the U.S. Supreme Court, and after that she became an Assistant U.S. Attorney - what office was that in?

Julie O'Sullivan [00:02:38] In the Southern district [Laughter] of- the sovereign district of New York.

Harry Litman [00:02:42] And how long were you there, Julie?

Julie O'Sullivan [00:02:44] I was only there three years. I was seconded to the Whitewater investigation under Bob Fiske and then quit once Ken Starr was appointed.

Harry Litman [00:02:55] OK. But so you have experience in an actual you know investigations of the president for purposes of impeachment. Did you have any particular role there?

Julie O'Sullivan [00:03:06] I was an informal deputy. I was Bob's first hire. And I was responsible for putting that office together in Little Rock.

Harry Litman [00:03:15] Remind the listeners how Bob Fiske came to be replaced by Ken Starr.

Julie O'Sullivan [00:03:20] Well it's it's a story of the independent counsel statute, right? Every time somebody gets indicted or prosecuted under one political party, the other party reacts by letting the statute lapse. So what had happened was after Iran-Contra, the statute lapsed. Janet Reno appointed Bob Fiske as a special counsel, much like the current special counsel. And then when the office made a couple of decisions that apparently Congress didn't like, they reenacted the statute and the special division appointed Ken Starr.

Harry Litman [00:03:51] And finally we're joined by a regular on Talking Feds, Matthew Miller. Matt is a partner at Vianovo, a strategic advisory firm. And he was the former director of the Office of Public Affairs for the Department of Justice, and counselor to the Attorney General, Eric Holder. And what did you do before then, before you you started at Justice?

Matthew Miller [00:04:13] I worked primarily in politics. I worked for Chuck Schumer at the Democratic Senatorial Campaign Committee. I'd worked for a couple presidential campaigns, John Kerry. I worked for Bob Menendez in the Senate, so mainly had done communications, didn't know really anything about DOJ until the Obama transition, when I got pulled in and, and had to climb a pretty steep learning curve in short order.

Harry Litman [00:04:35] And so your work on the Hill didn't involve interplay with the Department?

Matthew Miller [00:04:40] No, not technically, though, I worked for Schumer when the U.S. Attorney scandal was breaking in 2007, 2008. And so while I was working on him for him on campaign stuff, kind of had a firsthand view of how he and Preet Bharara conducted that investigation that ultimately brought an Attorney General down.

Harry Litman [00:04:57] Well let's dive in. Everyone is waiting with bated breath for some product, some part of the 400 pages to arrive in the public and on the Hill. What do we expect we're actually going to see? How extensive will the redactions be? How will they have gone about redacting this document? What will things look like?

Julie O'Sullivan [00:05:19] I don't think we really know. I mean that's pure speculation; apparently the Department of Justice is consulting with the special counsel, or at least they say they are, about what is [00:05:30]6E, [0.0s] and what isn't, grand jury material. My assumption was, this is a really professional team Mueller put together. And they know how to write a report that contains grand jury or doesn't. And my supposition was that they would generate findings that could be published right away. Certainly that's something the newspapers are saying inside sources say. And so you know I'd be surprised if a lot of it is redacted.

Amy Jeffress [00:05:58] That's a great point. If I were there and not to say that they're going to do it the way that I would have done it, but if I were advising Eric Holder now about this very matter, I would say let's try to make the redactions as minimal as possible under the rules, because the more you redact the more questions there are going to be in Congress and in the public arena. And the Department needs to take a position that it is making the report public to the maximum extent possible and to be able to credibly defend that position. And the public is going to want to see it, so if there are lots of blacked out pages, that's going to cause a lot of controversy that's going to haunt the Department for the next year and a half or longer.

Harry Litman [00:06:37] That does seem right, that things will come out a little bit at a time and there's real play in the [00:06:43]choice. [0.0s] This is what strikes me from the little bit of oversight of grand jury material, it's a pretty amorphous standard that the team is now applying, it's basically, would it reveals something that happened in the grand jury? And people can really disagree. On the other hand, I don't know, Matt, what do you make of this? Barr said this is a first pass, which suggests that you know you're not going to redact more on the second pass, it suggests that that they are somehow imposing some kind of more muscular standard or what, what did he mean by that?

Matthew Miller [00:07:17] I think he's kind of making it up as he goes along, honestly. I think you can see that in the way that he's kind of changed the way he's described what he's doing over and over, his first letter actually was his second letter, when he said this is a summary of the report and then in his next letter said, "I never meant to give you a summary." So he has been kind of moving all around, in some ways I think a little surprised by some of the criticism he's gotten in trying to react to it.

Harry Litman [00:07:43] What do you make of that by the way, just like he's rusty? Sort of he's been away for a while and didn't you know-?

Matthew Miller [00:07:48] Combination of rustiness and arrogance. I think he's a very smart attorney, you can see that in the way he talks about the law when he's on the Hill, you can see it in the 19 page legal opinion he wrote - even if you disagree with it, he's a very smart person. But he's been out of public, the public eye in a long time and this is a big, important job where everyone is watching you and will jump all over you. And I think he makes missteps, but is also extraordinarily arrogant. You can also see that in his testimony, he's very dismissive of some of the questioning. And arrogance will lead you to make more, more mistakes because you're not reactive to public pressure in the way that you sometimes ought to be.

Amy Jeffress [00:08:27] So this point about him correcting the record, if you will, to say this was not a summary, the three and a half page bottom line as he now puts it, I think that that was in response to the public characterization of it as a summary. And how I read that is that actually he does not want to be accused of having misled Congress and the public with that letter. So the summary, it's not what we have seen now the bottom line conclusions are not a summary, and that at least gives me the idea that there is going to be a lot more information in the Report that's not consistent with those conclusions that he put in the letter.

Harry Litman [00:09:00] And back to Julie's point, I took you basically to suggest, 'Look, we do have this professional team that all remained from Mueller's office. They're going to-,' the, the word from Barr is they're helping out or consulting or something. But I imagine they are really doing the actual work. Do we expect that there's going to be a whole level where somebody at the A.G. level walks through, redaction by redaction and adds more, or that the Mueller team's judgment will stand?

Julie O'Sullivan [00:09:30] Well I assume the A.G.'s team will control the ultimate product. I think it depends on what, what's being redacted, just how sensitive it is. I don't think there's much that could be redacted on the obstruction count. Most of the witnesses were interviewed. Even if they were put in a grand jury, their interviews are not grand jury. A lot of the actions we've all seen, they've been rehearsed on TV and in the newspaper. So I would be really surprised if that were extensively redacted.

Harry Litman [00:09:59] By the way, that's a really important point. It's your understanding, as long as it's also public knowledge, even if it happened in the grand jury, that's a reason that it's not [00:10:08]6E [0.0s] material?

Julie O'Sullivan [00:10:09] Well that's what the D.C. Circuit said when Ken Starr- when, presumably, I think it was [00:10:13]Williams and Connelly [0.4s] moved to hold him in contempt because he disclosed, or some of people on his team disclosed, that they intended to indict Clinton after the impeachment proceedings. And the court said, 'Yeah, that might have happened in the grand jury. But you know everybody knows this is going on, so it's just fine.' So unfortunately for Barr, he's going to have to live with this D.C. Circuit's case law in reaction to Ken Starr.

Harry Litman [00:10:38] Does he have an, you know if he says, "I want to be transparent but there is the [00:10:41]6E [0.0s] law." If it were really true that they just wanted all the information out, does he have a way to do it? What would Barr do if he just wanted to get it all out there really?

Julie O'Sullivan [00:10:55] He would do what Ken Starr did, which is go to presumably the judge who governs the grand jury, and say, "This is in connection with a pending judicial proceeding, which is a prospective indictment." That passed muster with the D.C. Circuit before. That's good law in the D.C. Circuit. And just ask that it be disclosed.

Matthew Miller [00:11:13] Yeah that's exactly right. I have always wondered, at what point does the president step in here? And there was this weird-.

Harry Litman [00:11:18] Besides every point.

Matthew Miller [00:11:20] Yeah. Besides every point there. There was this weird thing this week where Barr was before Congress. He opened by answering a bunch of questions about the Report, and then he got a question, "Have you shown it or to the White House or briefed the White House?" And he said, "I'm done answering questions about the Report," and it was a very odd place to draw the line. Because before now they've said they won't discuss it, you know, they haven't discussed it with the White House. Now it's something they don't want to talk about. So I have wondered at what point does the White House step in and say, 'You know, enough. I'm ordering the Justice Department not to go to court and ask for grand jury material to be released,' or, 'I'm going to assert executive privilege.' You know. Barr has has you know said, 'Well the White House has said publicly they're going to defer to me and so I'm taking that.' We don't know- that we know the president isn't bound by what he says publicly. He could very easily come back- and I just found that, I found his reluctance to talk about that piece of it, when they've talked about it in the past, to be a clue that something is going on behind the scenes. And we don't know what it is, but I wonder at what point the president, having gotten the best possible outcome he's going to get from Barr's first letter, is now saying, 'Whoa, whoa, whoa, hold on, slow down." And looking to find a way to keep some of it private.

Harry Litman [00:12:33] You guys have all been there in the highest reaches. What's your sense of just how roiled things are within the Department now? Have Mueller and Barr become antagonists in some sense? Is it just a crazy swirl of pressure and rumor and the like, or is it more work a day? What do you think's going on there?

Amy Jeffress [00:12:54] Well it's interesting, that's going to depend on whether Mueller and his team feel like their work is being mischaracterized. So there's already been some rumblings about that and some of the reporting. And that again to me counsels the Attorney General and his staff to put forward the report with as few redactions as possible, so that the Mueller team doesn't then feel like their work has been mischaracterized.

Harry Litman [00:13:21] And because if they do, just in practical terms, they can really make things hard for Barr, just-.

Amy Jeffress [00:13:28] So within the Department of Justice, the Mueller team has a tremendous reputation. So many of those people are very well respected by the line prosecutor community and the line DOJ attorney community, right. So if Barr starts to take steps that are contrary to what that group has done, and the work that they've done, I think that's going to be very unpopular, not only within the Mueller team but within the Department, his own rank and file.

Matthew Miller [00:13:54] You know Amy, that, you're so right. That leak to The New York Times about them feeling that the report misrepresented their work, basically what that leak was saying, was such a bombshell because they've been quiet for for for two years they haven't said a thing, did not a thing leak out. And I think because they were so quiet, it, their credibility has just kind of increased, increased, increased, increased-.

Amy Jeffress [00:14:16] Exactly!

Matthew Miller [00:14:17] So when they do complain, it lands like a bombshell. And I think their position is only strengthened going forward. I think you're right, if Barr tries to hold back some of the really important pieces that they think the public ought to see, it's one call to a reporter. And it doesn't have to be Bob Mueller making the phone call, a lot of that team-.

Harry Litman [00:14:34] It won't be Bob Mueller.

Matthew Miller [00:14:35] Yeah. And you all know people that leave the government feel different about their obligations. People that leave the government may feel free to call The New York Times and say, "This is, this is outrageous what he's done."

Julie O'Sullivan [00:14:43] I would actually be a little surprised. That team was so professional throughout, despite lots of incentives perhaps to you know disclose something on deepest, darkest background. Obviously prosecutors always blame the agents, [laughter] and the agents will blame the prosecutors, so I don't know, I mean-

Amy Jeffress [00:15:05] So I agree, but they've worked like crazy for two years. They've given up lots of their lives, some of them were commuting, some of them had moved down here for two years. And so to have put in all that effort and then to see some of it not ever become public or not result in the consequences that it should, I think that would be-.

Julie O'Sullivan [00:15:24] Especially if they wrote it to be made public, right?

Matthew Miller [00:15:27] Especially given that one of the big things they were investigating, in fact the reason why we got a special counsel in the first place is because of the president's inappropriate interactions with the Department of Justice. And if now they see their work stymied because the president has put in place an A.G. who got the job, I think we can safely say, because he had a view that benefited the president about obstruction of justice. If they think that the game is rigged here on the very question that they were assigned to investigate in the first place-

Harry Litman [00:15:53] None of us is right in the middle anymore, but we all know people who are maybe talking to them. I don't have the sense, as I did with Sessions and certainly with Whitaker, of general sort of rank and file discontent at this point with Barr. I don't know if you guys have heard to the contrary, but of course what the next few weeks will tell. I mean, for one people at the Department by and large don't know what the Report says. Right, there's got to be like maybe 10 numbered copies out there and very close hold?

Amy Jeffress [00:16:22] So it's been reported, and I don't know that this is true, but it's been reported that the Mueller team prepared a summary of the report that they viewed as something that could be released with no redactions. And so that to me is very interesting and something to look for this week. So, does that summary come out? And if so, does it come out with redactions that we assume from, if this reporting is accurate, the Mueller team determined were not necessary? So is, that would show daylight between the two-.

Harry Litman [00:16:49] Yeah, that's a great point.

Julie O'Sullivan [00:16:50] And remember they went on for two years. If this Department of Justice thinks that they know more about what should be redacted and what shouldn't, in a week or two, that that strikes me as ludicrous.

Harry Litman [00:17:02] And by the way, like on the summaries and the redactions generally, we know that as early as more than a month ago, March 5th, Barr and Rosenstein met with Mueller, knew where things were going. They really should have been about the business of having these redactions started at least and certainly in the summaries by then. I think in general the timing that people have assumed, where everything happened you know that weekend whatever, is, is wrong, I think.

Harry Litman [00:17:29] I want to just unpack one thing that Julie said, so, to make sure the listeners understand, because it's pretty important. Rule 6 says that you can't generally release grand jury material but gives five exceptions. One of the exceptions is for a pending judicial proceeding. And the D.C. Circuit, which is the the court that might actually control this, the Court of Appeals over the District Court, has said as recently as 10 days ago that an impeachment inquiry counts as a pending judicial proceeding. But the question then arises, does there actually have to have been an impeachment inquiry formally initiated, which the Dems have so far not wanted to do, or is enough just that they could be thinking about it? But I think you're saying, Julie, that based on the Starr- well, do you know, did that, when Starr did that order, had the House already begun an impeachment inquiry?

Julie O'Sullivan [00:18:28] My understanding is they had not. I could be wrong, but my understanding was they had not. In fact, the report was what triggered the impeachment inquiry and you know maybe it was in contemplation, right, but very similar to this circumstance, Congress is waiting for a report.

Harry Litman [00:18:44] So that would suggest very different from public expectation that in fact Bill Barr has an easy, 'In our order, please release,' and boom.

Julie O'Sullivan [00:18:52] Mm hmm. I actually think, there was a report on Waco which was also I think a special counsel, and that was shared publicly, and I I believe the D.C. Circuit said that the public interest involved was such that they could disclose it.

Amy Jeffress [00:19:07] We put forward a considerable amount of information about the anthrax investigation - I was the Chief of the National Security section at the U.S. Attorney's office when that investigation was concluded. And we were considering whether we should produce a grand jury report and then just determined that it was so in the public interest to demonstrate how our conclusion was reached as to who had done the attacks and that that person was acting alone, and to make people feel safe, that we took the steps to put it all out and you can all you can get it all of it on the FBI web site. So there are ways that you can put forward information even if it was collected pursuant to the grand jury, in the public interest.

Julie O'Sullivan [00:19:40] Actually I think I misspoke. I think it was Iran-Contra the D.C. Circuit authorized. Because I think Waco the special counsel who was appointed under these same regulations was John Danforth, just posted it on a web site. Without any consultation with the court or anything else.

Harry Litman [00:20:00] But I mean to Amy's point it really does feel like that's the missing part of the Department's analysis right now, you know. And it was absolutely pivotal in Watergate for instance, the public interest. What we've had is just this bland notion, "Here's what rule six permits," but this you know surpassing point that everyone needs to know and is dying to know what's in the report, somehow gets stripped away. Who's in a stronger position now? How do you view it to the extent it's shaping up as a kind of Congress or Judiciary Committee vs. DOJ battle, how do you like Congress's chances sort of overall?

Matthew Miller [00:20:39] Look the law is on Congress's side, generally. Public opinion is on Congress' side. Public opinion on this question of whether the report ought to be released is something like 90 to 7, when you look at polling. What's on the Department's side, if it chooses to fight, is time. And it's always on the Department's side in this, in these battles, and time is important in a political fight, because if the Department decides to fight to not disclose redacted material, they can drag this out for a year, sometimes two years. And by the time that material eventually becomes becomes public, the public salience around it has dissipated. And so if the Department is willing to take the hit in public opinion and fight, they can do it and they can drag this out for a long time. I think the question is you know what kind of will does Bill Barr, what kind of will is he willing to devote to that question? And so far he's been, in his public hearings, somewhat contemptuous of Congress's need to get this information.

Julie O'Sullivan [00:21:32] I think another entity in this equation is the special counsel's office. I mean the threat that they might go public with a you know some some kind of disagreement about redaction or something, that really works in Congress's behalf.

Amy Jeffress [00:21:48] If you look at time in the long run, in the long run, this report is going to become public. And so if the Department of Justice is making redactions that are for any purpose other than legitimate purposes, that's ultimately going to become known. And so again if I were the Attorney General and his staff, I would be thinking of that. The Attorney General does not want his reputation to be, he's the person who protected the president by violating the law and by misleading the public. So let's hope that that's how they're-.

Matthew Miller [00:22:17] He's making a lot of mistakes if he doesn't want that to be the reputation-.

Harry Litman [00:22:19] I mean, but that really is-.

Matthew Miller [00:22:20] And I think he's well on his way to being seen as that.

Harry Litman [00:22:22] So that really is it, right? I mean it was part of the things that several of us here thought about when we had a sort of sanguine view when he was first nominated, why at 68 does he want to cap his career with you know what would be a total black eye or worse? I totally agree with Amy, it's coming out you know eventually, but will it come out you know-? The actual litigation process when you think about it is just completely, it's almost unimaginably complicated. There's going to be some court somewhere going over each redaction, and that's the work of a decade.

Amy Jeffress [00:22:59] Actually, I think we're maybe looking at this too negatively. We don't know. You know, it may come out on Tuesday that Bill Barr decided that, to do the right thing. And we have to hope so.

Harry Litman [00:23:13] And at a minimum, I think it will come out that- there are two things that I want to know more than anything: what, why did Mueller decline to make that? And why did Barr step in? And we really should find out. I just can't see what in the categories Barr has announced, could get in the way of hearing Mueller's analysis. That's all we've got time for on this topic. But it's going to be burning white hot for, for at least the next month it seems, to me.

Harry Litman [00:23:43] All right. We'll be back in a moment with this week's Sidebar. First I want to tell you a little bit more about the founding sponsor of Talking Feds. The Constantine Cannon Whistleblower Lawyer Team has extensive experience representing whistleblowers under the wide array of federal and state whistleblower laws. I know this because I've done a fair bit of the representation myself and I am a member of The Constantine Cannon Whistleblower Team. The firm's experience spans across multiple industries including health care, banking, pharmaceuticals, securities and commodities trading, telecommunications, insurance, technology and government contracting. Learn more at Constantine Cannon dot com.

Harry Litman [00:24:35] [MUSIC] Once again it's time for us to explain some of the basic terms and relationships that you hear about in this podcast or on the cable coverage of the presidential investigations, in a segment we call Sidebar. Today we will hear from Anthony Romero, the executive director of the American Civil Liberties Union and a tireless and charismatic fighter for liberty. Anthony took charge of the ACLU seven days before the 9/11 attacks, and he has had a profound impact on the organization and really the lives of millions of Americans. The organization achieved legal victories on the Patriot Act and other national security issues. In the Trump administration, the ACLU has filed more than 200 legal actions and its membership has quadrupled. Today, Anthony is going to tell us about a topic on many people's minds, congressional subpoenas.

Anthony Romero [00:25:39] How do congressional subpoenas work? The power of Congress to obtain documents and witness testimony is called the inquiry power, and the Supreme Court has held that it is part of Congress's power to legislate, described in Article 1 of the Constitution. This is also called the oversight power, and Congress may seek information related to legitimate subjects of legislation. Congress often informally requests that people provide that information, however, it can force someone to provide documents or testimony through a formal demand called a subpoena. Subpoenas are issued by the House and Senate and their committees, according to the rules of each body. Generally, subpoenas require a majority vote or a decision of the body's chair. When someone receives a congressional subpoena they must provide the information requested, unless they have a constitutional right, called a privilege, not to provide it. As with other subpoenas, disobeying a congressional subpoena can lead to a civil or criminal prosecution for contempt. This is Anthony Romero of the ACLU. [END MUSIC]

Harry Litman [00:26:47] Thanks very much to Anthony Romero. If you want to keep track of the ACLU's legal battles and their positions on various aspects of these investigations, you can go to ACLU dot org.

Harry Litman [00:27:02] OK, for our second topic we're having a little bit of a change of pace. We're actually going to talk about something that is not directly Bob Mueller and Donald Trump related-.

Matthew Miller [00:27:13] You sure about that? [Laughter]

Harry Litman [00:27:13] Well that's- very good point, very good point. I want to talk about the Julian Assange case and in particular start with a kind of a nuts and bolts, two kinds of nuts and bolts. One, what sort of happened within the Department to go forward? And then, as an assistant, you've got all these either criticisms or at least discussions in the public sphere about the First Amendment implications and whether Assange is a legitimate member of the press and this is the same as you know the Pentagon Papers. And I'm wondering, as an Assistant U.S. Attorney, if you were actually the line prosecutor on this case, how if at all things like that would factor in, or is that just for the sort of political higher ups?

Julie O'Sullivan [00:28:04] I think obviously that the press considerations are really important. I have to say that I think that if a reporter gets grand jury material, you can't prosecute the reporter. But if he bribes a juror to get the grand jury material, yes, absolutely you can go after him. So I think this is a really different case. If Assange had passively accepted all this information, that's one thing. But the indictment at least alleges that he actively worked with Assange- I mean, with Manning to crack a code that protected very sensitive information. That, to me, is different. I would potentially go after that.

Julie O'Sullivan [00:28:45] That's exactly right. Journalists should not be prosecuted for publishing information that they receive, even where, as in the Pentagon Papers case, it is classified and someone violated the law by obtaining it. So I don't see this case as that case. And this, in this case, Assange is accused of violating the law in order to get the information, hacking into government computers or assisting Chelsea Manning in doing so. And it's interesting that Bruce Brown, who's the head of the Reporters Committee for Freedom of the Press, was quoted in David Ignatius' column a few days ago saying that, "This is not a case against a publisher." Which means that a lot of reporters have lined up and not criticized the Department for this action.

Harry Litman [00:29:28] Yeah I mean I think that's exactly right. And in that sense it's certainly a legally sound case. Do we also think it's a righteous case? And so in other words, the sort of second order criticism is, 'Yeah OK. He hacked. Yeah. Hacking is not good. But they're really going after him because of the information that he purloined.' And in that sense, as a sort of moral matter, it's not that much different from say the Pentagon Papers case. Do you buy that?

Amy Jeffress [00:29:59] Well one thing to remember is that you don't know from this indictment what the landscape of evidence is that the government has. And so you never know when an indictment issues, what's behind it. And if there's not very much behind it, then I would agree with you, that seems like the evidence of actual hacking may not be that strong. But they may have more evidence and we may even see more charges before the extradition request is formally submitted in a couple of weeks' time.

Harry Litman [00:30:23] And we've got [00:30:24]it. [0.0s] And just to be clear, by the way, I think it's a totally righteous case, but part of it is like he's such a creepy guy. And I know that that's not something that's in the principles of federal prosecution-

Matthew Miller [00:30:34] Beyond creepy. He has been functioning basically as an asset of a foreign intelligence service to harm the United States for the last four years. That's not what he's charged with in this indictment, I would suspect because they haven't yet found the evidence to charge him with you know with acting with a foreign intelligence service, although maybe that's coming-.

Harry Litman [00:30:51] Well, it'll be hard to make him come if it's on the extradition-.

Matthew Miller [00:30:53] Well, but they have, they have time to indict him again before they make that official request. I think it is part of it. I think what happened, if you follow the reporting about this, what happened is early on in the Trump administration, they wanted to take another look at Assange. And I think that the precipitating factor was not his behavior in 2016, after all, Mike Pompeo, the CIA director at the time when they started this look again, had praised WikiLeaks disclosures in 2016. Obviously, the president did a number of times on the campaign trail. But it was the vault seven leaks that hurt the CIA-.

Harry Litman [00:31:25] Which were what again?

Matthew Miller [00:31:26] Hacking, I think to simplify, hacking techniques or other eavesdropping, surveillance and eavesdropping techniques the CIA reportedly had used were leaked to WikiLeaks and disclosed I think in 2015, 2016, somewhere around there, and greatly angered the intelligence committee, as the 2011 Manning leaks greatly angered the intelligence intelligence community. And I think what happened in the intervening years from 2011 to now is that that Julian Assange looks very different than he did back then. There was a time when you could credibly claim that Julian Assange was publishing whistleblower activity. I'd never agree with that, but you could make that argument and it was an argument prosecutors had to think about when thinking about whether to charge him. He looks a lot different now after he has for years been functioning basically as the arm of a foreign intelligence service. And I suspect he might look different to juries than he would have in 2011, 2012.

Harry Litman [00:32:18] Now of course it's a matter of public record that Assange's efforts had something to do potentially with the counterintelligence investigation that Mueller has been pursuing, and potentially aided the Russian effort of making mischief with the election. Is that something that you think figures in at all into the DOJ's decision to prosecute"

Amy Jeffress [00:32:44] It may have figured in, but the indictment was issued in March of 2018. And when you look at the timeframe of the offense, it's 2010. So my read of why he was charged then is that they were coming up against the statute of limitations expiring. So I don't think that their timing of the indictment was related to the Mueller investigation.

Harry Litman [00:33:06] What's the statute for this crime?

Amy Jeffress [00:33:08] My understanding is the statute of limitations is five years, but they can toll that for an additional three years based on a request for information from a foreign government. And I assume that's what happened here, and why he was charged within eight years of the offense.

Harry Litman [00:33:21] Let's think about final thoughts here, but I wanted to include anyone's opinion if you have it as to whether the White House had any knowledge, coordination given the ways in which in fact the probe, the Roger Stone case potentially interacts with Assange, the things that Trump had said in favor of WikiLeaks, would this be something that would have been as much news to them as it was to the general public, or do you think they had a role here?

Julie O'Sullivan [00:33:53] Well I mean obviously there had to extricate him from the Ecuadorian embassy.

Harry Litman [00:33:57] Would somebody have given a heads up to the White House?

Amy Jeffress [00:33:59] That's the right way to put it. So somebody would have given heads up to the White House right because this is going to be an action with consequences, political consequences, and international consequences really. So, and I think that that would have been appropriate. What's not appropriate is to ask the White House for their view on whether it's should be done. So that's the distinction I would draw.

Matthew Miller [00:34:17] Yeah I think that's right. Look, national security matters and this is a national security matter both because of the underlying charge and because there are national security consequences involved. You know there, there are interactions with foreign governments here, the UK government and also the Ecuadorian government, we were apparently negotiating with them to try to get him booted out of the embassy. That's the area where it's most appropriate for DOJ to talk with the White House in advance of a criminal case; I suspect they did. The only thing that makes it weird here of course is the president's love affair with WikiLeaks, which, who he now says he knows, who he now says he knows nothing about, despite bringing it up 141 times on the campaign trail. That makes it a little weird, but still, DOJ can't, couldn't bring this case by themselves because DOJ can't go convince the Ecuadorian government to convince, to kick him out of the embassy, that's State's job. So there had to be some interagency conversation.

Harry Litman [00:35:06] At least with State, but also a heads up to the White House, yeah.

Amy Jeffress [00:35:08] I would think so.

Harry Litman [00:35:09] It's time for our final segment, five words or fewer, where we take a question from a listener and each of the Feds has to answer in five words or fewer. Our question today comes from a Twitter listener who asks, "Who enforces the court's mandate in a federal court case?" Five words or fewer, Feds.

Amy Jeffress [00:35:28] The executive branch.

Julie O'Sullivan [00:35:31] The Marshals Service, poor souls.

Matthew Miller [00:35:33] The executive branch, then voters.

Amy Jeffress [00:35:36] Or litigants representing the people.

Harry Litman [00:35:39] The executive branch. We hope. [Laughter]

Harry Litman [00:35:45] [MUSIC] OK that's going to do it for this episode of Talking Feds. Thank you very much to Amy, Matt and Julie. 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 podcasts or wherever they get their podcasts. And please take a moment to rate and review this podcast.

Harry Litman [00:36:07] You can follow us on Twitter at Talking Feds Pod, to find out about future episodes and other Feds-related content. And you can also check us out on the web at Talking Feds dot com. Submit your questions to Questions at Talking Feds dot com, whether it's for five words or fewer, or general questions about the inner workings of the legal system and federal prosecutorial practice for our Sidebar segment.

Harry Litman [00:36:36] Thanks for tuning in. And don't worry, as long as you need answers, the Feds will keep talking. Talking Feds is produced by Jennie Josephson, Rebecca Lopatin, Dave Moldovan, and Anthony Lemos. David Lieberman is our contributing writer production assistance by Sarah Phillipoom. Leo Cooper supplied the photography. And thanks to the incredible Philip Glass, who graciously lets us use his music. Special thanks to Anthony Romero of the ACLU for today's Sidebar. Talking Feds is a production of Dalito LLC. I'm Harry Litman. See you next time. [END MUSIC]