TF 06: Report Summary [Redacted]
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 [00:00:27] [MUSIC] Welcome back to Talking Feds, a prosecutor's roundtable that brings together some of the most prominent former Department of Justice officials for a dynamic discussion of the most important legal topics of the day, including still today the investigations of the president and his circle.
Harry Litman [00:00:46] Today we're talking about the strange goings on within the Department of Justice and the apparent war of words between the Attorney General, William Barr, and Special Counsel Robert Mueller. And then we will turn to the prospects for Congress to get some of the Mueller Report and related materials, and the president's tax returns.
Harry Litman [00:01:09] I'm Harry Litman. I'm a former United States Attorney and Deputy Assistant Attorney General and Assistant United States Attorney, or line prosecutor, and I'm a Washington Post columnist as well. Today I'm joined by three former Feds whom you already know well. First, Paul Fishman. A partner at the law firm of Arnold & Porter, Paul was the United States Attorney for the District of New Jersey from 2009 through 2017. And before that he was a senior Department of Justice official for many years.
Harry Litman [00:01:45] We're also joined by Joyce Vance, Distinguished Professor of the practice of law at the University of Alabama and former U.S. Attorney for the Northern District of Alabama.
Harry Litman [00:01:57] And finally, Matthew Miller, a partner at Vianovo, a strategic advisory firm. Matt was the former Director of the Office of Public Affairs for the Department of Justice.
Harry Litman [00:02:10] We're here on a Saturday and we have all four of us been spending all our time completely focused on these issues, from the time we get up to the time we go to bed. I'm wondering what you guys do to sort of relax and put this to the side on the weekends? [END MUSIC] What if anything do you do to take a break and recharge for the next week ahead?
Joyce Vance [00:02:32] You know, when we were U.S. attorneys, Fishman once told me we could sleep when it's over, and I pretty much adopted that same view here.
Harry Litman [00:02:41] All right. So there's no weekend really, it's a weekend, week, it's all the same?
Joyce Vance [00:02:46] No I'm I'm teasing, I have a big family so lots of family life.
Matthew Miller [00:02:50] Yeah I have to say I chased my little children around the weekend. And when the weekend's over, and you get back to you know what we do the rest of the week on Monday, it's actually I find the week's easier than you know raising a 4 and a 1 year old at the same time.
Harry Litman [00:03:04] Is the one year old starting to cruise yet? Is the one year old walking a little?
Matthew Miller [00:03:08] She's walking a little, yeah.
Paul Fishman [00:03:10] Wait till they're teenagers, Matt. That's all I can tell you. [Laughter]
Harry Litman [00:03:14] I now have two. It's not, it's not pretty. And Joyce, I just want to ask you because I've learned recently you have this very interesting kind of avocation that brings you all over the country. You want to you want to tell us about your sub, your demi-monde of of a special topic here?
Joyce Vance [00:03:38] Perhaps you're referring to my stealth life as a knitter?
Harry Litman [00:03:41] Yes.
Joyce Vance [00:03:43] Yeah I've, I've I knit, i knit all the time. If you see me on TV, there's undoubtedly knitting in my lap. And knitters are sociable people so we get together all over the country and and knit together.
Harry Litman [00:03:55] So you're knitting like on your lap but you're also talking about sort of whatever.
Joyce Vance [00:03:59] It's a great metaphor for how my whole life works. [Laughter]
Harry Litman [00:04:03] OK. So let's dive in. This has been a really unusual couple weeks in the Department of Justice, and hopefully from our experience we can illuminate what's been going on for the listeners. After 22 months of strict discipline from the Special Counsel, we now have devolved into a kind of war of words sort of in the press with leakers, unidentified, between a kind of Mueller camp and a Barr camp, and there seems to be tension here and differences of opinion about just what happened, what Mueller decided to do and why he decided not to bottom line, why Barr supposedly had to. I'm just wondering, what's going on and what do we think is underlying what's now become a fair kind of leak- battle of leaks within the Department with these two different camps?
Matthew Miller [00:05:09] So I thought it was a fascinating leak and you know when you're a press person like I've been, you've spent a lot of time always trying to figure out why a leak happens, where it comes from, what the motivation was. And this is one of those leaks that was not directly from the Mueller team, but apparently you know some people on the Mueller team told associates who told the press. And often that means one of two things, that means people on the Mueller team just are blowing off steam and they don't know those friends and associates are going to go leak, or it's a very deliberate way to kind of launder information into the press.
Matthew Miller [00:05:43] And my take is when you read this and after two years of the Mueller people on that team not saying anything that made it out, you know, if they talk to their friends on the weekends, they were very circumspect because it, not thing made it to the press. For this, this unhappiness to leak out, it was very deliberate. And I suspect they, when whoever it was on that team talked to associates who went, talked first to The New York Times, and then to the Post and NBC and then to many others, who quickly confirmed it, that tells me it was very deliberate and they were quite unhappy. And that doesn't mean everyone on the team is unhappy. I doubt Mueller himself wanted this to leak, but certainly some on the team were unhappy, both, I would suspect with the fact that Barr jumped in and made his own call on obstruction of justice, and in the way he structured the release so that he was first out of the gate with the most favorable possible interpretation for the president and the Mueller team's work follows up weeks - and in some cases, maybe months later, if we see a heavily redacted version of the report that he gives out here in another week, week and a half or so.
Joyce Vance [00:06:51] So Matt touched on something that's been interesting to me. We don't know who was behind this leak and we don't know if it's just one person or if it's a significant majority of game. We don't know, Matt suspects it's not Mueller himself. But it's not at all unusual when you're working on a case, and particularly these close-call public corruption cases, that there are folks on the team who don't see eye to eye. Sometimes the agents see things more aggressively than prosecutors. Sometimes you'll have an appellate lawyer on the team who says, "Well maybe you can get a conviction at trial, but I can't get you affirmed on appeal." So until we know exactly where these concerns come from, it's hard to really know exactly what to make of them. But that said, this piece that came out in the Washington Post that indicated Mueller had written internal summaries that were ready for release and that Barr chose again to do his own sort of letter release, that likely prompted a lot of concern on on this team and rightly so.
Harry Litman [00:07:57] I am assuming that it was the probably the agents on the team who were more likely- what, what's your, what's your thought, Paul, about what underlies-? And by the way just, I don't, we haven't sort of put this out for the listeners, so what's been going on is this sort of soto voce war of words where one team says, basically, Mueller did not want to bottom line, and on purpose, and the Barr squad saying you know he was supposed to and Barr was left with no choice but to bottom line. And the suggestion is that in fact they were chagrined that Mueller didn't do it.
Paul Fishman [00:08:38] I think there are two different pieces of this that I think we can think about a little differently than that. Remember this is against the background of Barr being criticized at his confirmation hearings, before his confirmation hearings, and since, about the idea that he didn't think the president could be indicted for obstruction of justice at all effectively. Right? That that the president is exercising his constitutional duties not to, to do certain things, to fire the head of the FBI or to make certain public statements, that that can't be obstructive.
Paul Fishman [00:09:09] And I wonder whether Barr, knowing he was subject to that criticism and knowing that people would think, if he actually had to make this call that that would have been the reason why he made it, that he was very eager to make it clear that that wasn't the basis. That for him, sitting where he sits, that he and Rod reviewed the evidence and decided you know what we just don't think it's enough to bring a case and win, which of course is the standard, right? Federal prosecutors are not supposed to bring a case unless they can credibly stand up in front of the jury and say that the evidence warrants conviction beyond a reasonable doubt. And so I wonder a, whether that's why Barr was so eager to say what he did.
Paul Fishman [00:09:53] The second is, the thing that puzzles me is that the press has reported that Barr had this report, and Rosenstein had this report- or at least a draft - for two or three weeks-.
Harry Litman [00:10:03] Right.
Paul Fishman [00:10:03] It seems to me that if, if Barr really wanted Mueller to make this call, he could have said to him; they'd been friends for years, he could have said, "Bob, I want you to give me a recommendation, one way or the other." The fact that Mueller didn't do that leads me to believe that Barr really didn't want one.
Harry Litman [00:10:19] That is really interesting because yeah we know that they knew it weeks ago. And so maybe Barr didn't want one so he himself be left with the authority to do it. And yet we're told, this is in part of the war of words, that the Barr team is chagrined that Mueller didn't, and they surmised that it was actually a responsibility under the Regs to do it, which you know I don't think the Regs in fact accord him that responsibility.
Paul Fishman [00:10:50] But even if that's, if that story is right, that assumes that Barr and Mueller talked about it. It's not like, as I said in the first podcast, it's not like he's- Mueller is really an independent counsel. Mueller is actually a subordinate in the Department of Justice hierarchy, under the Regulations of the Attorney General. And there's nothing honestly I think that prevents them from having had that conversation before this. And if they had the report for three weeks you would've thought, given their relationship and that hierarchy, that they could have talked this out. And so if it's true that Barr didn't get what he wanted, that itself is pretty remarkable.
Harry Litman [00:11:25] Yeah, it's great. But right, you would imagine three weeks ago or before he found it out, if Mueller reported to him - as we know he did - "Hey I'm not going to bottom line." If his view was the Regs require it, that he would have just said, "Actually Bob you know please bottom line, that's that's what I see your your job as being here," right?
Matthew Miller [00:11:47] Yeah. Or if if he thought this was a call the Justice Department needed to make, as he seems to think in his letter- that Barr seems to think in his letter, that is, you know we still don't know the reason that Mueller didn't make this determination. And I have a hard time believing it was just because there was too much indecision on the team, that people on the team couldn't decide, as the Justice Department-.
Joyce Vance [00:12:08] There's no way [00:12:08][inaudible]. [0.0s]
Matthew Miller [00:12:10] And that's what the Justice Department was trying to imply in their leaks this week, that Barr had to jump in because there was a disagreement in Mueller's team. I just have a hard time believing that Mueller couldn't you know work through that disagreement and figure out what his opinion is and make a recommendation or make a determination, if he thought in fact it was a call for the Justice Department. We don't know why he, why he didn't make the call, but I have to believe when we see the report, it's going to be something like he didn't need to make that call because either he couldn't indict the president anyway, because the Justice Department has this sitting opinion about the president not being indicted, or because he thought, and it sort of stems from the first point, that it was a call left to Congress. I just have to believe that's going to be the reason, not that there is some disagreement in his team that Barr then had to step in and and decide for himself-.
Paul Fishman [00:13:01] Or there's that last possibility, which is that he knew that Bill Barr does not think that the president can be indicted for obstruction on this kind of evidence. And so he basically, and so he lays out the evidence and then doesn't reach the conclusion because he's leaving it to Barr to make that call in the end, on whether, on whether- for another citizen, this would be enough. But maybe not for the president.
Harry Litman [00:13:21] Well is that right, so, is our best surmise when we find out about what Barr was opining here, is that it's something like that? In other words, something about the special role of the president and his almost inability to obstruct as long as he's exercising his enumerated powers?
Harry Litman [00:13:44] Let me just follow up on that, because I think that would be a very controversial and wrong basis, and it would be very problematic for Barr essentially to, on behalf of the Congress or even the courts, step in and say that's the resolution of this momentous question.
Joyce Vance [00:14:08] And that might be Barr's view, but it's not necessarily Mueller's view. And if Mueller's view differed - which I think likely it would, because Barr's view is something of an outlier even on the expansive end of the spectrum of executive power beliefs - Mueller would have likely come in with his own view, and if Barr was going to overrule that, that's fine. Look, friendship doesn't mean you see eye to eye always on legal issues. One thing I feel certain of is that Mueller did not fail to make a decision because there was controversy in his team. And whatever led him to leave this question open, it's much more likely going to be along the spectrum of, "This is Congress's responsibility, it's not up to prosecutors." I think it's unlikely that Mueller would have just said, I'm going to cave to the Attorney General's view on executive power.
Matthew Miller [00:15:01] I agree with that and I would say, Harry, I think I would have less issue with Barr making the determination he did on obstruction if he had made that determination public at the same time he made the Mueller report public, so Congress could take a look at the evidence, since they ultimately are the ones that have to decide whether the president obstructed justice or not. They should've been able to get a look at the same time Barr made his determination public. Because the way Barr did it, he allowed the president to get this talking point that he's been cleared and shape the public narrative for a good number of weeks before Congress eventually sees the report. Now, it may not matter in the end, the evidence in the report may be compelling enough, the report may be damning enough that no one will care about what Bill Barr said. But it may not work that way. It may be that Barr you know getting out first with this you know with this conclusion that the president is cleared on all charges, that he can't be charged with anything, you know establishes a baseline that the country is never able to come back from, even if the, when we see the report, it's incredibly damning. And that that's what I find so troubling about what he did.
Harry Litman [00:16:08] Yeah. So I agree, I mean the possibility is, we know that almost everybody has made up their minds - that's both in the Congress and the public. But maybe you know 10 percent now of the public and the same and within the Congress sort of takes it as a fait accompli, it takes a while to actually air the question and the little by little, the, the air leaks out of the tires, people think, "Let's put this to the side. We should be thinking about maybe the 2020 campaign now." And it just looks as if the Nadlers of the world are kind of fighting yesterday's battle.
Harry Litman [00:16:53] So that's about all the time we have for this issue, although I think we could go on for hours, and the issue itself is going to be playing out with increasing intensity over the next several weeks. And we'll go over that in future podcast episodes. Let's just go around the horn now with people's final thoughts on this issue and where it stands now.
Joyce Vance [00:17:16] So as a practical matter, this doesn't conclude until as much of the Mueller Report as can be released without compromising national security and ongoing criminal investigations is released. Law aside for the moment, even politics aside, the only way the country successfully moves forward is with that release. One hopes that ultimately Barr as Attorney General will understand that and find a way to bring himself back into an attitude that allows him to productively move the country forward.
Paul Fishman [00:17:49] You know, that seems, that, I think that's exactly right. I also think you know one of the things we've been talking about is sort of what the different views that Barr and Mueller may have, and the only thing that occurred to me that we haven't covered is if, if, if Bob Mueller shared Bill Barr's view that the president really can't be prosecuted for obstructive conduct because he's the president, then Bob Mueller wasted a lot of time trying to investigate something that he couldn't prosecute to begin with. That strikes me as not so likely, given who Bob Mueller is. My guess is he ran down all those leads, pulled all those threads, that he really thought that there was a case that had to be investigated, and if it's a case that had to be investigated, it was a case that could, maybe not could have been made, maybe it wasn't, but it could have been made.
Matthew Miller [00:18:36] Yeah, I would say that one of the things that I take away from this week is how much power the members of Mueller's team have, even having been disbanded and no longer investigating this case. And you know I was chuckling, Harry, when you said the leaks probably came from the agents, because there are three prosecutors are on this podcast, the prosecutors always think the leaks come from the agents. If you talk to the agents, the leaks always, they always think the leaks come from the prosecutors. We don't know, but I think we found out that whoever on this team leaked has a lot of leverage over Bill Barr. They were able to significantly change the story this week and put a lot of pressure on him. And when he does make this report public, if there are redactions that they think are inappropriate, if he tries to hide some of the story from the Congress and the American public, members of Mueller's team coming forward and saying that, either on the record or even on background, would be extremely powerful. And if I were Bill Barr, after what happened this week, I would sure have that in the back of my mind as I was figuring out what I was going to turn over to Congress.
Harry Litman [00:19:34] That's a really interesting. Barr is famously in this position of having taken the job at the end of a very distinguished career, and he's got a lot to lose in terms of reputation if the story begins to play out and take form that he was actually trying to give a slanted view. So he's in a very complicated position vis-a-vis the White House, the Congress and his own legacy, and that's for him where the stakes are right now.
Harry Litman [00:20:06] OK we'll be back in a moment with this week's Sidebar, but 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 a wide array of federal and state whistleblower laws. Constantine Cannon can commit resources to a case for many years to vindicate their client's claims. Their attorneys have recovered well over one billion dollars for the government, and hundreds of millions of dollars in awards for whistleblower clients. I know this personally because I am one of the lawyers on the Constantine Cannon Whistleblower Team. Learn more at Constantine Cannon dot com.
Harry Litman [00:21:01] [MUSIC] OK. That brings us to our Sidebar segment where we try to explain some of the basic aspects of federal prosecutorial practice that you hear about in this podcast but also throughout the news over the last few years. Today we are really excited and really fortunate to have actor, director and political activist Rob Reiner. Rob has directed so many classic movies in his long career, including The Princess Bride, When Harry Met Sally, oh and two relevant movies about the law and politics - A Few Good Men and The American President. And I'd add he first came to national renown dead set in the Watergate era, maybe the first ever Watergate TV show, All in the Family, where he played Meathead, the son in law of Archie Bunker, an early [00:22:00]Trumpista. [0.0s] Today, Rob is going to explain the relationship between the Department of Justice and the Special Counsel.
Rob Reiner [00:22:11] What is the relationship between the Special Counsel and the Department of Justice? Ordinarily, criminal investigations and prosecutions are handled by officials who are overseen by the Attorney General, either in the United States Attorney's offices or the criminal division at DOJ. However, when the DOJ or the president has a conflict of interest, there is a need to bring in a prosecutor who can be independent, a Special Counsel can be appointed. The Special Counsel operates like an ordinary U.S. Attorney, but his role is limited to the case that he was appointed for. To preserve his independence. The Special Counsel can be fired only for good cause. However, he still answers to the Attorney General and must explain any investigative steps, if asked. Moreover, the Attorney General can veto an action by the Special Counsel if it is inappropriate or unwarranted. At the end of a Special Counsel's investigation, the Special Counsel produces a report to the Attorney General explaining the prosecution decisions reached. The Attorney General in turn must provide an explanation for the conclusion of the investigation, and may choose to make the Special Counsel's report public. I'm Rob Reiner. [END MUSIC]
Harry Litman [00:23:46] Thanks very much to Rob Reiner. If you're not already following him on Twitter, you should, go take a look, because he is very involved in public debate about these issues.
Harry Litman [00:23:57] And today is probably as good a day as any to crank This is Spinal Tap up to 11:00, because we're living in it. So let's turn to a second topic, which is the actual practical battle on the immediate horizon between the Department of Justice and the House Judiciary Committee. Chairman Nadler of the Committee is beating the drums saying, "We must have all this information and unredacted report. We needed it in fact by April 2nd, a deadline that everybody expected to pass and did pass." Meanwhile a new case came out yesterday from the court that might decide litigation between the Department of Justice and the House Judiciary Committee, and it gives a little something for both sides though largely comes down on the side of the Department of Justice in saying, essentially, the listed exceptions for turning over grand jury material in the federal rule are exclusive, you can't just add to them with amorphous supervisory power of the district court.
Harry Litman [00:25:11] All right. So how will this play out? Who's going to win the various battles? And, let me add, when will we likely hear about at least the summaries, the Mueller report summaries that we know the team prepared, and prepared with very much the notion that they would be disclosed to the public in early fashion?
Joyce Vance [00:25:36] Congress will try to subpoena at a minimum the Mueller Report and also the president's tax returns. We know that because Congress has already made that very clear. It's possible that they may try to subpoena additional material, for instance the Mueller Report itself, even though it's voluminous and has many exhibits and addenda, we've been told, there's also likely a case file, lots of agents' reports of interviews, FBI calls those FBI 302 forms. And so it's likely that there may even be underlying material that ultimately subpoenas go out for. And the question about how that battle shapes up, I suppose there's a short answer and a long answer. The short answer is that it's very likely to end up in the Supreme Court and to be decided there. This does not look like a case where the parties will be able to resolve the ultimate issues between themselves. Often when you have this sort of a request from Congress, there's a negotiated process to see if the parties can agree on some sort of disclosure that's acceptable to both sides. That really doesn't look like it's what we can expect in this case.
Harry Litman [00:26:47] Yeah, although I'd say two quick points about that. I generally agree they are really squaring off for a court battle. But first, the summaries themselves, I think it's possible that those will be produced without a subpoena, just with a kind of public insistence to which Barr will yield, and that we might see those quote unquote voluntarily produced even if there's the formality of a subpoena.
Harry Litman [00:27:14] And then second, you know, I think when Nadler really looks at his hand, especially in light of this new decision, he might think, first, the prospects are at least cloudy, if not a little dim. And second, the way these things play out, just fighting the fight can in fact take up so much time that by the time it's resolved, even in Congress's favor, you've lost the force of the- public force of the battle. So it's possible that he he will nevertheless negotiate, but from a pretty weak hand and capitulate to a pretty limited subset of the materials.
Matthew Miller [00:28:05] I think with respect to the Mueller Report, this fight between Congress and the Justice Department if Barr continues heading down the path he says he is, which is to redact a lot of information, probably is going to shape up like most of these fights between Congress and DOJ does- do, where the law is for the most part actually on Congress's side, the precedent is on Congress's side. But time is on the Justice Department's side. This has always been the way the executive branch fights these battles, which, they know that if at the end of the court fight they are likely to have to turn over most of the information that Congress is asking for. If you look at the things Barr wants to redact, he doesn't have any, any right to withhold classified information from Congress. He doesn't have any right to withhold information about peripheral third parties. He can redact that from public release, but Congress has the right to get that information. Grand jury's a little more complicated-.
Matthew Miller [00:28:53] But with with respect to those other categories, the law, the precedent is all on Congress's side. But what DOJ always has, if it wants to wants to make this fight, is timing. Because the they can they can delay and delay and fight this out in the courts, and what happens - this is what happens, happened in the fast and furious fight when we were all DOJ, is - by the time they end up having to turn material over to Congress, the political salience of the issue has passed. And so by the time the public actually sees what it is DOJ was sitting on, most people just don't care anymore, and I suspect that's how this is likely to play out. And the big question is, if DOJ really wants to fight, and we haven't gotten it, we're leaving executive privilege off the table, let's let's say that the president doesn't assert executive privilege, they really want to fight to withhold this stuff, they might be able to drag this out even past the 2020 election.
Paul Fishman [00:29:46] I think that's totally right. I think you know I think this is one of those places where the ability of the courts to actually be the place where these things get resolved has diminished so drastically over time. There was you know there was a long period of time where if Congress really wanted to pursue these kinds of remedies and really wanted to go to court to get things, to have somebody held in contempt, to try to, to have the courts reinforce Congress's power, that was, that was a very meaningful thing. And when Congress subpoenaed things, people people generally produced them. That day has come and gone.
Paul Fishman [00:30:19] And so really I think the only thing now that will will force the Department of Justice's hand, the administration's hand to turn over the Mueller Report or to turn over the underlying documents that Joyce was talking about, is really sort of whether the public really demands it, and whether, or whether the House decides that in order to enforce the subpoena, in order to force its demands, it's going to play hardball with the White House on other things the White House really wants. And take it into another into another, another realm. And so I think in the end there will be litigation over this. But I think Matt's right, it will take far too long for that to play out for it to be meaningful.
Matthew Miller [00:30:57] Paul you just hit on one of the points that I think is is is so key to understanding so many things about this administration, and that is the way that they are immune to public pressure in the way that administrations in the past haven't been. In previous administrations, the public pressure would be so great that they would probably be more willing to turn over information earlier on. Other administrations cared about getting bad press, they cared about The New York Times hitting them on the head, on the front page, every day for weeks on end. This administration doesn't. And so what that means is, they're willing to defy subpoenas in the way that administrations haven't. They're willing to make all sorts of decisions that are completely unpopular, because the shame has been removed. And when you have a president who just kind of has shamelessness as an operating model, that filters down all throughout the administration, and so all of the typical incentives and disincentives that have kept past administrations from doing things don't exist to the same extent in this administration. And I think that's going to have a huge impact on their, their willingness to turn over the full report, the underlying information, the president's tax returns, and all of the other things Congress is going to subpoena, and all of the new oversight investigations that have started in the new Democratic House.
Joyce Vance [00:32:11] You know I think that's exactly right. This president, it's amazing that he can come out as he did yet again today and say that he is completely cleared by the Mueller Report, but simultaneously get away with taking a position against releasing it. Any other White House, the people in the United States would have said, "Show us or we don't believe you." But the cult of personality with this president is so strong, and as you say, Matt, the shamelessness that he exercises, that it seems like he can get away with with this, and this really turns all of our expectations about how this process should work on their head.
Paul Fishman [00:32:49] And that of course may be in the end kind of one of the longest lasting pieces of damage that comes out of this administration, right? Which is that there used to be a way in which institutions of government were sufficiently respected that they had a mechanism for resolving these sorts of disputes. There would be collateral damage along the way, people might get mad at each other, people's reputations might get tarnished, but at the end of the day, the basic institutions functioned in a lot of ways today the Trump administration simply doesn't care about.
Harry Litman [00:33:16] It's totally remarkable. They're not simply impervious to the criticism of The New York Times' of the world, you get the sense they positively welcome it. It's the sort of fuel that fires up the base. It's a badge of pride that The New York Times insults them, the so-called fake news. It's actually a part of an overall political strategy devised by Steve Bannon or whomever to in fact enlist the unbelievably loyal support of a minority, but a large minority of the country and focus on them and them alone in governing.
Joyce Vance [00:34:01] That's the central question of this administration, will the institutions hold the end of it or not?
Harry Litman [00:34:07] I couldn't agree more. It really is even more important than the outcome of the criminal proceedings, maybe even more than finding out what happened. When thinking way back to the beginning of the Trump administration, I felt a sense perhaps that we were dealing with a new kind of president, there, but there seemed an overall sort of buffoonish aspect to it. But it's got, somewhere along the way quite serious with this sort of wrecking ball approach to all the political and cultural institutions that we just look to, to stabilize the country and to be the means for playing out disputes in a democratic way. And will that impact actually take a year, two years, ten years, never to-. Well, never. You know, 20, 30 years to reverse is the last and grave question I think of the Trump administration.
Harry Litman [00:35:19] OK. We're at the end of this second topic. Let's go for a bottom line thought. Paul, when do you think we're going to see the summaries of the Mueller Report?
Paul Fishman [00:35:31] I think they get those- Bill, Bill Barr has promised to testify in front of Congress in the next several weeks. I think those summaries have to be turned over to Congress by then. I think if he goes up on the Hill without having done that, it will be just a bloodbath.
Joyce Vance [00:35:45] I agree with Paul. I think the summaries have to be turned over before Barr testified or it'll be you know, pick your day of the week, a Wednesday morning massacre that he does not want to have on national television with every Democratic member of that committee going after him full force.
Harry Litman [00:36:01] Yeah I agree it really would be kind of a bloodbath. Now I'll just add that you know relative to Jeff Sessions or Matt Whitaker, Barr has some pretty broad shoulders for you know absorbing that kind of pressure, but the pressure will be extreme.
Matthew Miller [00:36:18] I completely agree. Especially if you look at the way Barr has described what information he's going to withhold, if what the Mueller team said to reporters is true, laundered through associates, that the summaries were written in a way that they could, they could be released without really any redactions, they didn't have classified information, they didn't have grand jury information, then it's going to be hard for him to redact those summaries when he releases the full report, which I do think is going to happen somewhere on the timetable, he said around the middle of this month.
Paul Fishman [00:36:48] And by the way the, the phenomenon that you just described, Matt, which is that the summaries were prepared kind of with that thought in mind. This is not a new thing for prosecutors to think about. It happens a lot in all sorts of contexts. I'll give you one example, you know prosecutors file sentencing memoranda with judges all the time and know that some of the material in that sentencing memorandum is something that probably shouldn't see the public light of day, but it's something the judge is going to need to consider. And so when prosecutors do things like that, they write what is effectively a clean version and they write -that's effectively redacted - and they write the full version, knowing that they're going to have to release part of it for sure. It's hard for me to believe that Bob Mueller and his team, as experienced as they are and knowing what the stakes were and knowing that the requests were going to come, didn't have that in mind when they actually drafted the report, and could have prepared it in a way that would segregate those parts so that they would be in fact producible with relative ease.
Harry Litman [00:37:49] And my best guess is not only could they, but that's exactly what they did. We hear now in the quiet pushback and war of leaks that, Oh, the pages individually, are stamped "Contains grand jury material." But that to me it's likely that that's pro forma, you have to do that in an abundance of caution to actually scrub it, given what the summaries are, would not be much work. And in fact if they haven't been doing that work for the last few weeks, when the Attorney General says they've been dealing with grand jury material, then they're playing fast and loose in a way, they're being derelict. That's something that they should have been doing right away, those summaries, they have to come out and there's really every reason for them to come out sooner rather than later in order to arrest the whole tsunami of speculation that Barr's, that his first letter to Congress set off.
Matthew Miller [00:38:50] And I I'll just say I think that makes Barr's decision to release "the principal conclusions," as he described them at his own interpretation at his own determinations, without releasing those summaries, it makes his decision look all the more suspicious.
Harry Litman [00:39:05] Yeah I see that, of course, suspicious of what? I don't think that we should jump to the conclusion that Barr will be carrying water or toadying to Trump personally too quickly. I suppose that's a possibility and then is there a possibility that you know he is thinking of party, but not Trump, or is there a possibility that he's thinking of you know a sort of Gerald Ford move, of ending this national nightmare? Now, if he were, I think it would be a terrible misapplication of the Watergate analogy, but I suppose right now speculation is inevitable that there's a deeper reason for some of these maneuvers that we just don't understand fully yet.
Harry Litman [00:39:59] All right. So it's clear this is shaping up to be a really ferocious inter-branch battle, not just the Judiciary Committee and DOJ, but of course at least some of these questions will end up in court and some of those in the Supreme Court.
Harry Litman [00:40:17] And that's all the time we have for that topic, really seems like so much is going on just right now. But 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. So our question today comes from Matthew Flanagan in Los Angeles, California, who asks, "What's the best way to get the president's tax returns?".
Joyce Vance [00:40:46] Voluntary turnover like other presidents.
Paul Fishman [00:40:51] I think I think people are going to do what other prosecutors would do, which is look for them in other places, whether the, whether they've been filed with banks or with his accountant or other folks.
Joyce Vance [00:41:02] Paul, that is so not five words. [Laughter]
Harry Litman [00:41:04] That rule has been honored in the breach for several purposes, I have to say.
Paul Fishman [00:41:10] From, from from accountants or banks.
Matthew Miller [00:41:13] Whistleblowers at the IRS.
Harry Litman [00:41:15] Straightforward demand under the law.
Harry Litman [00:41:20] [MUSIC] Thank you very much to Paul, Joyce and Matt for returning to our Talking Feds podcast, and thank you very much listeners for tuning in. If you like what you've heard please subscribe to us on Apple podcasts or wherever you get your podcast. You can follow us on Twitter at TalkingFedsPod to find out about future episodes and other Fed-related content.
Harry Litman [00:41:46] And you can also check us out on the web at TalkingFedsdotcom. Submit your questions to Questions at TalkingFedsdotcom, whether it's for five words or fewer or general questions about the inner workings of the legal system for our sidebar segment. Thanks for tuning in, and don't worry, as long as you need answers, the Feds will keep talking.
Harry Litman [00:42:17] This episode is dedicated to [00:42:19]baby Miles Porter, [0.9s] who actually came into the world during the taping of it, and who gave new meaning to the task of our producer Jennie Josephson, who did double duty with technical assistance with [00:42:37]Miles' [0.0s] arrival and with the podcast's arrival. So it was produced by Jennie Josephson and [00:42:45]Dave Moldovan [0.5s] and Rebecca Lopatin are also producers. Anthony [00:42:50]Lemos [0.0s] edited this episode. Production assistance by Sarah Phillipoom. Writing and research by David Lieberman. And thanks as always to the incredible Philip Glass, who graciously lets us to use his music, and extra special thanks to Rob Reiner who schooled us today with the Sidebar. Talking Feds is a production of Dalito LLC. I'm Harry Litman, see you next time. [END MUSIC]