TF 23: Congress's Last Stand: Mueller’s Testimony

Harry Litman [00:00:07] Welcome back to Talking Feds, a prosecutor's roundtable that brings together prominent former federal officials for a dynamic discussion of the most important legal topics of the day. 

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Harry Litman [00:00:19] I'm Harry Litman. I'm a former United States Attorney and Deputy Assistant Attorney General and a current Washington Post columnist. We are here in Washington D.C., live, to tape a series of podcast episodes just blocks from the Capitol Dome. All this thanks to our gracious hosts here at Georgetown Law's Institute for Constitutional Advocacy and Protection. And for this episode as well, the American Constitution S-- Constitution Society, the leading progressive organization and network with over 200 lawyer and student chapters nationwide. All this week we're talking about what happens after Mueller. What are the challenges and prospects for our democratic institutions. 

Harry Litman [00:01:07] Today we're focused on what happens the day of Robert Mueller's testimony to Congress. Prior to the announcement of Mueller's testimony the House's effort to bring the report to life seemed to be getting nowhere and near checkmated. 13 weeks had passed and the House hadn't succeeded in having a single fact witness testify publicly. Stymied repeatedly by the administration's reflexive, and ultra aggressive policy of interposing dubious defenses that left Congress having to choose between caving and litigating the latter involving significant time. But Mueller is a law-abider and he got a lawful subpoena, and agreed to testify notwithstanding clearly preferring not to. 

Harry Litman [00:01:58] So the stakes for the House are enormous. They must use the opportunity if they can to make the American people understand the gravity of the offenses and misconduct laid out in the report, as pretty much anyone of the .01 percent who's actually read the 448 page report does. That's a complicated undertaking with expected strident opposition from the committee Republicans and the overall need to treat Mueller respectfully. So how should they approach it in broad strokes? We have a remarkable panel to address these questions of tactics and strategy. People with broad experience within the federal government, who also know very well the ways of Congress the Department of Justice and the FBI, who know the politics and the substance, who know Bob Mueller, and who know the key players on the House side they are. 

Harry Litman [00:03:02] Ron Klain, executive vice president and general counsel at Revolution LLC. Ron is the former chief of staff to Vice President Joe Biden as well as Vice President Al Gore and Attorney General Janet Reno. And I'm leaving out a long list of accomplishments in a distinguished career in public service and the private sector. He's also the former chief counsel to the Senate Judiciary Committee. Ron welcome to Talking Feds. 

Ron Klain [00:03:31] Thanks Harry. 

Harry Litman [00:03:32] Next, Tim Lynch joins us. Tim is a principal at the Raben Group, specializing in government affairs. He's the former deputy general counsel to the ranking member of the House Oversight Committee but also a former assistant U.S. attorney in the Eastern District of New York. Tim, welcome. 

Tim Lynch [00:03:50] Glad to be here. 

Harry Litman [00:03:51] Next, Matthew Miller is a partner at Vianovo, former Director of the Office of Public Affairs at the Department of Justice, the former Communications Director for the House Democratic Committee, and I think it's fair to say, a charter member of the Talking Feds podcast, but it's especially good to have him here today. Matt, thanks for coming. 

Matthew Miller [00:04:12] Great to be here in person. 

Harry Litman [00:04:14] Finally. We're honored truly honored to have Andrew McCabe join us on Talking Feds for the first time. He's the former deputy director of the FBI, the former acting director of the FBI, as well now as the author of "The Threat: How The FBI Protects America in the Age of Terror and Trump," which I think should be and will be must reading, not just now, but in the future as we try to dissect everything that has happened in these tumultuous few years. Welcome, Andy. Thank you so much for coming in. 

Andrew McCabe [00:04:48] Thanks very much for having me. 

Harry Litman [00:04:49] OK so quite enough for me, let let's dive in. So many things to think about in putting ourselves in Congress's position. Let me start by challenging my own premise: have I sort of overstated the stakes here? Does does the House have to swing for the fences or will a clean single suffice? How much pressure is on them now? Let me ask you Ron to start with that and then anyone else weigh in. 

Ron Klain [00:05:18] [00:05:18]Well, you know I'm a bit of a Democratic Mueller critic and I think that the Democrats on the Hill made a mistake in putting so much at stake on the Mueller Report and postponing any investigations until the report came out. [15.4s]

Ron Klain [00:05:34] [00:05:34]And I think if they're expecting some dramatic event when he testifies, they're going to be sorely disappointed. I think the entire Mueller Report is constructed to minimize the significance of Trump's wrongdoing. I think it misses the ball badly on critical issues of campaign finance law. And I think that if they think they're going to get some explosive statements out of Mueller, they're not going to get it. Look, I do think they can shape and focus their questioning to emphasize certain things they will have the cameras there. They can try to reinforce the point that Mueller didn't exonerate the President, as the President and his Attorney General have claimed. But I do think there is a lot of buildup for what may be a very disappointing show when Mueller testifies. [50.3s]

Harry Litman [00:06:25] Yeah. You know, I'll add to that a little, and I wonder what Tim thinks about it as a former AUSA, because you have these odd lacunae for, you know, for lack of a better, there must be a better word, for it, in the report where even to try to explain it takes about a five minute wind up, because you have Mueller just tiptoeing around conclusions that leave Congress without any ability to make a kind of clean sentence, of course he found obstruction, for example. So he was genteel, in a lot of spots that besides staying his hand just left it very difficult, even to try to explain. What your... Tim what do you think about the report itself? Even though that's that's a kind of departure from what ... well, it's not is actually it will be the number one exhibit come Wednesday. 

Tim Lynch [00:07:17] Yeah. Well so let me just you're first. [00:07:20]Do I think they need to swing for the fences? No. When I used to try cases, if you try to swing for the fences oftentimes it falls flat. What they need to do is use this as an opportunity as a reset button. You know Barr was successful in his misinformation campaign around the report. And so this is an opportunity, since most Americans haven't read the report to educate the public about the most serious aspects of the report. In it, you know, for something like this, a report this complex, they've gotta pick and choose and focus on, you know, for example on House Judiciary, focus on the most serious aspects of wrongdoing on obstruction of justice. And you've got to use the report, as a guide in your approach with Mueller particularly given that he's already said he wants to try to stay within that you want to use and highlight the most serious aspects in obstruction whether it's you know instances if the president tried to fire the Special Counsel. I think that's going to be key. They've got to pick and choose and hone in on that. Cuz you've only got a short amount of time, particularly with five minutes of questioning. [64.6s]

Harry Litman [00:08:25] Well, that might be true, not just Wednesday but in general. I mean let me challenge or at least ask Matt to react to your premise. I think there's some tension maybe even a flat out difference of opinion with Ron, because that's right. You swing for the fences you often flail. But not when you're down three runs and there's uh, there's an you know we're in the ninth inning. So is reset politically, and, and I would you know, maybe even just rationally, feasible now, Matt? They have a pretty good day, so what? Do they, is there so much that has to be accomplished Wednesday to change the dynamic that that a mere reset can't do the job?

Matthew Miller [00:09:09] I think the question is if you're House Democrats what do you want to come out of this hearing? There was a time when I thought, we thought, maybe the whole country thought, certainly the President thought, that this investigation might be an existential threat to his presidency. I think those days are over. I think that's done. He's not going to be removed from office over that. 

Harry Litman [00:09:27] When he very first heard about it his said "I'm done."

Matthew Miller [00:09:29] Yeah. That's right. That's sort of what he said. [laughter] [crosstalk]

Harry Litman [00:09:29] I think he might have sworn about it but we're on C-SPAN radio. 

Matthew Miller [00:09:33] You know we've talked on this podcast before about what, you know, what I see as some of the inflection points in the past, and how all the inflection points have gone the President's way. Mueller not making a call on obstruction. Barr whitewashing things the way he did and giving Trump a four week head start. This is another inflection point it's one that might go against him. But I think it's too much to think that 16 weeks after the report was turned into DOJ, 12 weeks after it was released to the public, that, that you're going to see an inflection point so dramatic that it's going to completely reverse things and lead to another existential threat that removes the President from office. And so what I think the the, the Democrats ought to do is just try to draw out for the American public what some of the report's findings are and try to show that the report does show he committed a crime. And I think they're going to have to be very creative in the way they do that, because Mueller is not going come... 

Harry Litman [00:10:25] Yeah you've got a tough witness here. 

Matthew Miller [00:10:26] You've got a tough witness. He's been before Congress many times, he's been prepped by people like, like me and Ron many times, you know, "Don't, don't, don't go beyond the four corners of the report. Don't take hypotheticals. Don't speculate." And I think they're going to be creative and do things like, like, ask general questions that then get to specifics. So for example, you start, by saying: Is it a crime for, uh, to direct a witness to create a false document that contradicts his truthful testimony? The answer is yes. Has the department... 

Harry Litman [00:10:55] The answer is: I don't want to speculate hypothetically. 

Matthew Miller [00:10:57] Well, uh, has the Department prosecuted people for that in the past? The answer to that question is yes. 

Harry Litman [00:11:03] Nice pivot there. 

Matthew Miller [00:11:04] Did the president direct someone to create a false document contradicting his testimony? The answer to that is yes. And so you draw him into it to concluding it without expecting him to actually come out and say what we would hope are the magic words. 

Harry Litman [00:11:14] Right. So, well let me just say, because Andy can add the extra vantage point of knowing the director very well or having seen them testify and not to mention having been on the hot seat probably more times than you can count. So, so given the kind of and when I said he was a tough witness it's not just that he'll be well-prepared but it's a real dilemma. You know, whether you have to wear kid gloves or not given, given who he is. What do you think would count as a victory, all things considered, for the judiciary majority at this point. 

Andrew McCabe [00:11:49] You know I agree with Matt. [00:11:50]I think that the committee should roll into this hearing with the purpose of communicating the substance of the report in the broadest and most accessible way to the American public as they can. Forget about articles impeachment, forget about the vote count will be in the Senate. The idea here is to get the information in that report ,which was presented in a legalistic and dense way, communicated in a very clear and simple way. I think the way you do that is by setting the ground rules explaining for people and having Mueller answer these questions in a leading fashion. That the way prosecutors prove cases every crime comes down, has specific elements. And the way prosecutors prove cases is they show, they present evidence that supports each one of those elements. Mueller left you the roadmap. There are 10 categories of obstructive activity detailed in that report on eight of those categories. He concludes that there is significant evidence to prove every element of that crime of obstruction. [57.1s]

Harry Litman [00:12:47] [00:12:47]And that I'd say is an understatement. You actually read into those paragraphs he doesn't conclude that, he concludes there is obstructive conduct yeah. [6.2s]

Andrew McCabe [00:12:55] [00:12:55]Absolutely. Absolutely he does and so that's the, that's where I would walk Mueller. He is going to be a reluctant witness. On his best and most cooperative days the director is not a strong witness because he's dramatic or he's verbose or he lays out a narrative in the way that other witnesses do. He's a strong witness because he knows his facts, he's been impeccably prepared, and he'll answer questions directly. So knowing that, I would go in as Matt kind of gave us an example just a minute ago with, very specific leading questions forcing him to acknowledge that the elements of this crime have been essentially proven in the report in a number of different ways. [41.7s]

Harry Litman [00:13:37] Ron, you had a point. 

Ron Klain [00:13:37] Yeah, I mean I guess I get that strategy. I probably have a different strategy which is I think where the Democrats are is, they need to think about not what happens on July 17th, but what happens on July 18th. 

Harry Litman [00:13:48] Right. 

Ron Klain [00:13:49] So, what happens next. And I think even if they have a good day with Mueller and they coax him to say some things whatever their biggest vulnerability is it's just over at sunset. So I think their objective in the hearing has to be to say, "Hey there's more things to investigate." They need to leave that with more doors open than closed. And I think that's more about testing Mueller on what's not in the report. Not that he's going to comment on it. But what are the areas of investigation Mueller didn't complete? What are the things he looked at but didn't run to ground? I mean overall I think my biggest, one of my biggest critiques of the report, is he set the legal standard, it's just the wrong legal standard under federal election law. So that he could not establish that there was coordination. That, that's just not the standard under federal election law. You don't need an explicit or implicit agreement to have coordination, unlawful coordination under the federal election law. I think there are a lot of areas where Mueller didn't run the thing to ground on the work with the WikiLeaks, and what did Donald Trump Jr. do with the folks at WikiLeaks? And Roger Stone. And I think so, bottom line is I think figuring out, I think this discussion of what's in the report is important, but what's more important is opening the doors to what's not in the report that Congress, that on July 18th can say, "Hey this is why we need to do more hearings. This is why we need to look into more things."

Harry Litman [00:15:07] Yeah, there's more work to do. I just want to say I mean like just in these eight minutes we have established a very big fault line in this panel. You're now in Congress and it's, are we going to go for the four corners because he'll go for it? Are we going to go broader because we have to establish that we have work to do? That is one fundamental question and that, and leaving aside who's making it, the five minute structure, what's going to be happening with the Republicans. Let me try to turn it around. OK. I think we've identified everyone seems to be thinking nothing is going to clear the fences tomorrow, and there's some discussion, excuse me on Wednesday, and there's some discussion about what will be good enough to go on. What Matt, would be like a clear loss would be like game over, see you next season, really there's just no more air in the tires, to keep mixing metaphors for and more... and you know Trump can say, We're done. 

Matthew Miller [00:16:00] I mean, honestly a clear loss would be a hearing that's looked like a lot of the hearings this committee has held previously. Where you see a lot of bickering between the members, the Republicans are successful. You know, that, you have a two hour cap on this hearing, the Republicans are successful in interrupting and dragging things out, so in the two hours you don't get that that many questions asked. And I think that this is you know, I have a lot of friends on that committee, is probably a lot of us do, a lot of poor questioning from the members. And so you leave with the takeaway from the American people being this is a food fight on the Hill a partisan food fight that didn't establish anything both because there's a lot of bickering, which you can't help, but because there's a lot of poor questioning which you can't help and which you can help but I'm afraid they won't. 

Harry Litman [00:16:41] And Andy, Mueller's composure is legendary. But how is it going to be for him to be sitting in the chair and people actually, they're going to be people on the committee who will as much as call him a criminal, a cheat, et cetera. Do you see him get being completely unflappable? Do you see him even trying to respond and be polite? Or tuning them out? 

Andrew McCabe [00:17:01] You know I see Director Mueller handling that sort of stuff particularly well. It's just not, those are not balls that he's going to swing at. He's so straight ahead in his, in his responses he'll call a spade a spade. But he's not going to get into an argument with um, with the questioner. I think Matt's point is well taken that the Democrats have to set themselves apart as actually pursuing a substantive goal in this hearing, rather than just trading barbs. If each one of these five minute questioning on the on the majority side comes down to, you know, individual members trying to show how outraged they are at the President and then we get nowhere, we end up with that swing and a miss. If they can return to an actual substantive pursuit with each round of questioning which is hard to do and it's distributed across that way. 

Harry Litman [00:17:51] It really is, right? [CROSSTALK] Yeah. Tim, let me ask you. I mean you've because you've got both the Hill experience and the, and the questioning, the AUSA experience. Given this limitation you know, they're not going to have skilled questioners actually offering it. What about if you could give him advice and you probably maybe, you are in terms of crafting actual questions, some, I think it was Andy talked about leading questions is that the way to go? How would you actually you know brainstorm like pen to paper, what question one looks like two three and four? 

Tim Lynch [00:18:26] So you really have to, particularly for the members who are questioning Mueller, you really need to in my view... 

Harry Litman [00:18:34] It's everyone no? Is there some? Are they...

Tim Lynch [00:18:36] So there's going to be some close questioning closed door session after. The staff will... 

Harry Litman [00:18:40] Oh I see what you mean. Yeah OK. 

Harry Litman [00:18:42] You really need to have the members use the report as a foundation. And you really have to focus them on you know the key parts. You know, whether it's obstruction. So for example you know, Mr. Mueller, you know, you found, you know, and I quote substantial evidence that the President tried to fire you on this day. 

Harry Litman [00:19:02] Let me stop you right now. Are you then just going to do a leading question? Or  are you going to try to pin him to say exactly what he's talking about, at the risk of his responding, "Well Member Lynch, it's in the report that's....". 

Tim Lynch [00:19:15] No, so your follow up is: Tell us in your own words what was this substantial evidence you found on that? 

Harry Litman [00:19:21] And what do you guys think? Will he tell in his own words are always what we say as it says on page 88, this is what I found. 

Andrew McCabe [00:19:27]  No absolutely he'll tell it in his own words. 

Harry Litman [00:19:28] He'll tell us it. Yeah. I mean that's a thing he's not, he's not, he's not squirrelly, he's not resent. I've seen him testify and it's not, it hasn't been the same kind of drama. But he's unfailingly polite, you might try to say, or responsive. He'll, he'll try maybe to put in his own. That's already a big thing if he puts in its own words, don't you think? 

Andrew McCabe [00:19:47] Absolutely. 

Tim Lynch [00:19:48] And I think that's a major, at least, goal in a process of at least giving a reset to this so that you know if you have, you know .01 percent of Americans haven't really read the report, if you get Mueller to talk about in his own words some of the most serious parts and use this setup as the conclusions that he reported on, it gives him that breathing room. So it's not you're asking Mueller to go astray. You're focusing this is your report. Now I want you to tell me in your own words. And you know when you're, you know, you have a trial, you have juries that have limited attention span. If you can get the focus on the snapshot of the key part of what you want to focus on and then have the witness tell in his own words, that's going to be able to bring some color to life to this. 

Harry Litman [00:20:35] Well that's true although of course as Andy says it's kind of eight counts. But Ron you've been up there. What do you think though the R's are going to do? Will they really just scream and harangue and distract? I mean what are they not, will they have no concern about how it looks to the American people? This is, that this be a moment of kind of dignity and drama?  [GUEST LAUGHS]

Harry Litman [00:20:58] Sorry. Ok. 

Ron Klain [00:20:59] Yikes. 

Harry Litman [00:20:59] Well that wasn't a rhetorical question. 

Ron Klain [00:21:01] No. But it was. Look I mean you know Matt pointed this out. [00:21:05]The Republicans have two ways to win, right. One, is that Mueller gives answers that are helpful to them. I think he will give more answers that are helpful to them than people believe. And two, they run out the clock. And you know and so you know what they're gonna do is talk and harangue and strum and drang and bring up you know the dossier and the conspiracy and... [22.2s]

Harry Litman [00:21:28] [00:21:28]And Page and Strzok, yeah... [0.3s]

Ron Klain [00:21:28] [00:21:28]This Page, the whole thing. Right? They're just going to try to basically chew up as much time as they can. Throw as much chaff in the air as they can. Make it as confusing as possible. So at the end what people say is like, a bunch of people yelling talking about a bunch of stuff I don't really understand. I don't know. Click two hours. And so you know they have both their elaborately spun crazy conspiracy theories and a ticking clock as their allies in this process. And I think they will use both to try to minimize whatever clarity the Democrats could come out of this. [37.2s]

Harry Litman [00:22:06] [00:22:06]The poor Dems only have the truth which is which doesn't seem to be that strong an ally. [3.4s]

Ron Klain [00:22:09] [00:22:09]Yeahhh. It's a... [0.1s]

Harry Litman [00:22:12] So you're, you're up there Matt it sounds like, do you actually have a sense,  what's the prep process like? Or is there, are the Dems being you know disciplined, are they, are the actual members doing their homework. What's your best guess about that? Not again not a rhetorical question. You know, how is it how is it working you think over the next few days? 

Matthew Miller [00:22:35] You know it's difficult so the Judiciary Committee in particular probably only about half the members on that committee are going to get to, get to ask questions in open session. 

Harry Litman [00:22:43] How's it, do you know how it works for that? Judiciary in the morning...? 

Matthew Miller [00:22:45] Judiciary, Judiciary at nine. Intel at noon. 

Harry Litman [00:22:49] Oh, Intel, ok. 

Matthew Miller [00:22:50] But because it's two hours I think they're 45 members of that committee. There aren't enough time for all of the members to ask questions for five minutes. I assume that they will let the most senior members ask questions first. And if you watch, have watched most of these hearings and judiciary you know that's a bad idea, because it's actually the more junior members who have been better questioners and been able to get you know better answers out of the witnesses like for example, when they've had Matt Whitaker up, it was the junior members that actually drew some blood. I would hope what they'll do is, is be very smart and disciplined about number one, ask questions don't give speeches. When you give a speech you're wasting your five minute minutes and not getting anything useful out of the witness. Number two, do some coordination among members so you don't all ask about the same area which happens all the time, even though it shouldn't. 

Harry Litman [00:23:38] I mean surely they're trying to do that much, no? 

Matthew Miller [00:23:40] The staff tries very much the committee staff tries very hard to do that, the personal staff of the members try but some of these members who've been there a long time, have their very, you know, have their own opinions about the wisdom of their strategies. I would say number three when you start a line of questioning  know where you're trying to go before you get there. You see all the time more members will you know go barging you know down a line of questioning and get to the end find out they went down a blind alley and say, Oh my time is up. And be very disciplined, don't ask a bunch of open ended questions. Ask yes, no questions. 

Harry Litman [00:24:11] Right. Everyone agree with that, it's got to be leading? And boom boom? You know, because Tim made the other point, you know, tell us in your own words...

Tim Lynch [00:24:17] It's gotta be, in my view, it's got to be leading to a point but you want him to give life to the most serious parts that he found. Because it's one thing when a member says something but to actually have Mueller, a key witness be able to say "X Y and Z. This is what I found about the President trying to fire the "Special Counsel."

Harry Litman [00:24:35] How about just that much coordination? Do you think that there's some, there's now an agreement about what are the four or five most important things? 

Tim Lynch [00:24:42] I would I would I would hope so because you've got limited time. So you have to make a decision. When I was on the hill and we were doing hearings on Oversight. We'd have to make a decision in terms of you know you've got five minutes, X amount of time, you know we've got to focus on you know in this case the four most serious aspects of the obstruction of justice charge. Because we've only got two hours. We don't have all day. So you've got to make those sorts of decisions to really focus people on this. Especially if you want your questions to be effective. You're going to have to cut through the fat with a report that's, you know, hundreds of pages. If you're focusing on obstruction of justice, what are the most serious? Not all 10. What are the four that they found probable cause and substantial evidence of obstruction. 

Harry Litman [00:25:29] The four. Right. Ron, you've got a thought? 

Ron Klain [00:25:29] Yeah I mean I guess I'd be a little more towards yes no questions. I just think Mueller while he is is quite articulate and as you say unfailingly polite, I've also watched him testify. He can be, not verbose, but like... 

Harry Litman [00:25:43] A little bureaucratic. 

Ron Klain [00:25:43] A little bureaucratic. 

Harry Litman [00:25:44] Yeah. 

Ron Klain [00:25:45] And you know five minutes, if you're going to spend of the five minutes, a minute and a half asking questions cumulatively, that means he's gonna talk for three and a half minutes. If you let him spend a minute a half of that time explaining, "I was appointed under this regulation and under the scope of the regulation, I had the authority look into this and not that, and blah blah blah blah." Like, you know you're just not going to get a lot out of it and so while I agree with Tim, like having these things come through his voice would be ideal. 

Harry Litman [00:26:09] Yeah because they're looking for the TV moment, right? It's not necessarily what he says. 

Ron Klain [00:26:13] In some ways, it's like a lot of yes/no. And. And just trying to get some things out. I'd also just say in a weird way, these questions, of particularly in the House, questioning goes awry through overly ambitious efforts to question about too much stuff and too much. And so if I was sitting with one of these members I'd say, pick one thing. Just one thing. And spend your five minutes nailing that one thing down. 

Harry Litman [00:26:41] And can the Chairs, I mean that seems so obvious are the chairs in a position actually enforced that much? 

Ron Klain [00:26:46] No. 

Harry Litman [00:26:47] Nothing. [CROSSTALK] 

Ron Klain [00:26:49] ... a position to talk and cajole and coax and hopefully you know get some progress. I think you'll see in some ways better results in the Intelligence Committee probably than in the Judiciary Committee because I think you know the members are maybe a little better questioners. And I think a little more focused on you know the Russia side of this in a way that's going to be a little more I think engaging to the public. 

Harry Litman [00:27:12] Let me move exactly to that and ask you Andy, because that's that's become you know the sort of forgotten huge half of the report, that again if you read it carefully describes some eyebrow raising worries some misbehavior not just looking retrospectively but looking forward. And if people really you know I think the short answer that people given to that: Oh, that's, there's nothing there. That's obviously not true. Do you spend some of your precious time trying to establish that? At the cost of not fully plumbing the depths of the second half of the Mueller report?

Andrew McCabe [00:27:51] Well, I mean we'll see how much of this coordination actually takes place. But I think Ron's right. That you know the natural split there is to have the intel committee focus on that. It's also the part of the report that I think Mueller feels most strongly about. It's what he led his own, his own public statement with his nine minute statement. 

Harry Litman [00:28:08] Yeah, that's right he wanted to remind everybody about that. Yeah.

Andrew McCabe [00:28:11] That's right. So he clearly feels like that's been pushed aside and the focus on the obstruction issues. It's a way to kind of provoke him get him engaged. It is an area that he'll probably be more likely to kind of wax poetic on, in a way that will be effective I think for the Hearings. So yeah, I think you have to, if, certainly on the Intel side you have to start with that. Right. That is their mission. That's what they're there to find out about. And they think it's fertile ground to bring Mueller into. 

Harry Litman [00:28:40] Any chances for anyone. Any chance that he permits us and expresses any daylight between him and Barr?

Andrew McCabe [00:28:50] No. 

Harry Litman [00:28:51] We've got we have a... 

Matthew Miller [00:28:53] I think it's possible. I think he'll try not to but I think you know if you ask him questions, if you ask him you know yes no questions about some of the things that Barr said and say, Is that an accurate description of your work? You might find a little daylight because I think there are times that Barr... [CROSSTALK]. 

Andrew McCabe [00:29:09] You might find a little bit there but he'll do everything possible to avoid the personal confrontation. 

Matthew Miller [00:29:15] That's right. I agree with. 

Harry Litman [00:29:16] I mean we think that. But look, on it, on the most important work of his career. Barr really did him a disservice. But I mean Mueller is way too unflappable. Unflappable is not the word but yeah. 

Andrew McCabe [00:29:29] Unfailingly polite maybe to use your term from before. 

Harry Litman [00:29:32] Or soldier like or whatever. 

Andrew McCabe [00:29:34] Yeah, he had the opportunity to do that from behind the podium at Justice, he didn't. So it would be a surprise to me. 

Harry Litman [00:29:42] By the way I assume nobody is working, uh well,  I want to focus a little bit more on Barr. You've had efforts now, overtures to try to keep the deputies from testifying after. Is he, all indications before were that, that's Bob's decision it's hands off. Is he a factor in any way on the 17th? Or just waiting his turn to come in and do whatever counts for him as cleanup work, would you say? 

Matthew Miller [00:30:14] For who to come in? 

Harry Litman [00:30:15] Barr, the Attorney General. 

Matthew Miller [00:30:17] You know, I don't if he's going to come before this committee. You know, he was subpoenaed to come before this committee and defied the subpoena because he didn't want to take questions from staff. And you know, I actually don't think that was a terribly bad outcome for the Democrats for him not to be there. He's the best witness the President has, because he's the person who is the Attorney General as at the Justice Department, was Mueller's supervisor... 

Harry Litman [00:30:37] And he really has an amazing ability to make extreme statements sound... 

Matthew Miller [00:30:42] Sound reasonable. 

Harry Litman [00:30:42] Eye to eye, and sound reasonable right. 

Matthew Miller [00:30:44] Sound reasonable. So he's got to go before that committee sometime this year, it's a regular you know oversight hearing that every Attorney General has to do, so he will, I assume in the Fall but you know I think it's a real, to Ron's point... 

Harry Litman [00:30:56] I meant more, I meant more by the way in any way to try to manipulate, limit, curb the wings of any of the testimony that's coming. 

Matthew Miller [00:31:03] Well you've already seen him trying to block the staff from coming in. Imean he's trying to block to two of Mueller's deputies from coming in. He can't really do that if they don't want to to listen to him. 

Harry Litman [00:31:12] They can't all do that, right? 

Matthew Miller [00:31:13]  Yeah, they can't... But you know look they can intimidate that there might be Barr referrals. They tried to, they tried to block, they tried to intimidate Sally Yates from coming in to testify when she came early in the administration and she blew them off. She wasn't willing to do it. And we'll see whether Jim Quarles and Zebley  care aboutany of those threats. 

Harry Litman [00:31:32] Why is it those by the way? How have we chosen who the deputies are? 

Matthew Miller [00:31:36] I says I don't know why the House chose that I suspect because they were the two most senior people, or the two people who had visibility into everything by virtue Zebley, kind of as the chief of staff, and Quarles, as maybe the most senior person. But I don't really know.

Harry Litman [00:31:50] Let's focus on them for a little bit more. Again from the standpoint of Democratic strategy. They will presumably be much more candid. It might even be in fact that they're willing to express daylight. On the other hand they're behind the scenes. In your overall playbook for Wednesday, and both Matt and Ron have suggested that the playbook has a lot of blank pages in it, but in your overall playbook, what are you doing with and what are you reserving for the deputies? Any thoughts?

Tim Lynch [00:32:23] I think you're, for the deputies reserving, you know what key additional information. You know what. You know I think the deputies will probably be a little bit more forthcoming about next steps. Particularly if you're going to be looking at questioning behind closed doors. Folks tend to be a little bit more open when the cameras are not rolling. So I think they've got to use the deputies as an opportunity to build the next steps in a way that's going to be much more difficult with Mueller and the cameras rolling. I think that's where the deputies are going to be key. 

Ron Klain [00:32:58] I also think the interesting question that you're not. Get out of Mueller is who pressured and how much pressure was put on Mueller and his team to wrap this investigation up, in my view, way prematurly. 

Harry Litman [00:33:12] Very. 

Ron Klain [00:33:13] And maybe the deputies cough that up. I mean look of all my criticisms of Mueller. My biggest one is he never questioned Trump right. I think it's inexcusable legal failure, prosecutorial failure and historical failure. And his story in the report is, "Hey I first asked him on December 8th to question and they said no and it was could take a long time to litigate this out. And so I gave up. And I had a lot information elsewhere." And like... 

Harry Litman [00:33:38] For a prosecutor by the way, [CROSSTALK], So it's stunning like... 

Ron Klain [00:33:42] First of all. I mean you know... 

Harry Litman [00:33:43] One more thing "We thought we already had enough evidence.". 

Ron Klain [00:33:46] We already had enough evidence. 

Harry Litman [00:33:47] Which is why evidence, that has to be of of intent. Right? What else could he mean he has enough evidence? Go ahead. Sorry. 

Ron Klain [00:33:52] Right. So look. So one why did you wait all the way till December 8th. Like did you just get snookered by Rudy Giuliani constantly promising you that this was gonna happen? Like I wonder what the deputies have to say about that. Was there discussion in the office about putting the question to trump sooner making him say yes or no sooner? Why did they decide they couldn't win this litigation or that they didn't have time to bring this litigation? And that, like, we wouldn't have U.S. v. Nixon, if the Watergate prosecutor had taken it, "Oh, fighting over these tapes take a long time. Who knows, maybe we'll win in court. Maybe we'll lose. Why should we bother this litigation." Like fortunately that was not the decision made 30 years ago. I think the Mueller team needs to be pressed hard on this and this sense that's in the report everywhere of a ticking clock. Time was running out, it had taken too long. We needed to have this answer. Where did that come from? And it was that externally applied? You know, in Matt Whitaker DOJ era, there was a lot of talk about this. You know and Barr shows up and all of a sudden it's done it's over. Like I want to know how all that went down. I think the deputies are gonna be the place where you might well get some traction. 

Harry Litman [00:34:57] I look at a fantastic point. They compare say Whitewater, which was what nine years, to, maybe, and much less complicated. This is actually for what it's worth the genesis of the Talking Feds podcast. Because I thought, people would make these blithe explanations of the thing that seemed so clear to me, as this must have been hotly debated. And it's that hot debate that I know where was Weissman on this? Where was... It does seem such an obvious move. And I do think it will be the sort of first count of criticism against him in, in history it really gives the possibility that we we may never know some very important things. On the logistics by the way, so the deputies are going to be at the end of the day in theory. No one's supposed to know. But in practice we just expect that their content will, will leak, clearlu, no party has a premium on leaking. Is that... How's that going to work Matt?

Matthew Miller [00:35:57] I don't know. I don't know whether I mean there are a couple ways I can do it. One they can have a non transcribed interview or they just talk to the deputies and then leak out whatever they want to the other way they can do it as that is how they've done interviews with say Annie Donaldson and Hope Hicks where they do the interview behind closed doors, they transcribe it and then make that transcript public the day after, or a couple days after. I'm not sure I see the point in that. You know that the purpose of the congressional investigation, that I think typically they have two purposes. One is fact finding and two his public illumination. The deputies aren't there for public illumination because they're behind closed doors. They're there to Ron's point for fact finding and hopefully to give the committee some new avenues to to look at that they didn't run down. So I think whether they release that to the public or not I'm not sure how much difference it really makes. 

Harry Litman [00:36:43] [00:36:43]Andy, you've probably I'm looking at people who I know have testified before but you've you've probably been on the hot seat the most. What's it feel like kind of for what's going to feel like for him. Will will he be you know, will it be sweating and tense? Will it feel like the six hours passes in 10 minutes? Do you, do you constantly rethink: "I should have said that last answer. You know a little bit this way..." You know how how is that, he's human being after all he might even have to go to the bathroom during the day. Who knows. [30.0s]

Andrew McCabe [00:37:14] [00:37:14]It's going to be terrible in every way that you can think. [2.0s]

Harry Litman [00:37:16] [00:37:16]For him. It's a miserable miserable root canal of a day. [2.4s]

Andrew McCabe [00:37:19] [00:37:19]It's absolutely awful. You spend an enormous amount of time preparing and Mueller certainly does. We've all had that experience wit him. [6.8s]

Harry Litman [00:37:26] [00:37:26]Legendary. Right. [0.8s]

Andrew McCabe [00:37:27] [00:37:27]They used to line the hallway leading up to his office with briefing teams he'd have these thousand page binders all over the place it was insane. [6.6s]

Harry Litman [00:37:34] [00:37:34]By the way. People would, it's really true? People would go in and he'd already have it down to detail? [3.7s]

Andrew McCabe [00:37:38] [00:37:38]His command of the facts when I worked with him was extraordinary. [3.8s]

Harry Litman [00:37:42] [00:37:42]Unparalleled. [0.0s]

Andrew McCabe [00:37:43] [00:37:43]Unparalleled and he would come after you in a very kind of you know cross-examination style, it's been well documented. It's going to be very tough for him. He hasn't done this in quite a while. He didn't like it when he used to do it. He did it less and less frequently as he was director. He began to rely more heavily on his deputies and others to go in and take these swings for him. He can't get out of this one obviously. It's physically draining. You start immediately questoining. [29.7s]

Harry Litman [00:38:13] [00:38:13]Right. And by the way, he's a little bit older. Right? [2.0s]

Andrew McCabe [00:38:15] [00:38:15]Yeah. Yep. [0.4s]

Harry Litman [00:38:16] [00:38:16]Yeah. [0.0s]

Andrew McCabe [00:38:16] [00:38:16]Yeah he's uh... I probably shouldn't have said that'll be coming after me now. That's not good. He um... You know you immediately start calculating your question and the answer like as they're speaking, you're constantly trying to figure out where you are in the facts that you know what you can reveal what you should reveal. You're trying to be as accurate and truthful as you possibly can, but you're trying not to step on things like classification and sensitive information and talking about ongoing cases, things like that. He's got a basically a 400 page report to memorize and be able to kind of instantly index and provide facts from. So it's a it's a tall order. [37.4s]

Harry Litman [00:38:54] [00:38:54]And there's no kind of, "I did that well." It's just like, "OK I got by that one." Is that the... [4.5s]

Andrew McCabe [00:38:59] [00:38:59]You basically want to live. You want to get out alive. You know that you're not going to answer every question as well as you'd like to. The period after the testimony is almost as excruciating because you spent a lot of time thinking, Oh my God I shouldn't have said that or I should have said this differently. [13.8s]

Harry Litman [00:39:14] Well they given follow up written questions? Will they give Mueller follow up written questions? You don't think so?

Tim Lynch [00:39:20] It's hard to say. I mean I, you know I could see on the one hand a value but I think the main goal of getting him up before the cameras. I think ... [crosstalk]. 

Harry Litman [00:39:31] Yeah, Matt you're saying you think this is it this is the last word from Mueller. 

Matthew Miller [00:39:34] Probably. Yeah, yeah I think it's possible the deputies will get this sort of follow up questions because as, as the others have said that's your chance here to go beyond the report. As a former deputy, I can tell you always call the deputies up because they know a lot. They've been around forever and they're more likely to say more than what they should. As I am a perfect example of that. 

Harry Litman [00:39:54] Who by the way will be there other than his deputies from staff? Who will be there from say the Department? From Barr's staff? From Rosen's staff? 

Matthew Miller [00:40:04] Yeah it's a really good question. 

Harry Litman [00:40:06] Any ideas? Who, who attended Ron, who as protocol would have it who would... Because that's going to be that will affect the atmosphere a little, no? 

Ron Klain [00:40:12] I presume that they will push hard to have someone from Legislative Affairs in the room at least not someone directly from the DAG's office. But I, but I also think look, what we know about this committee is the Republicans members of this committee are members of the Trump administration. And you know they will make you know Snake Eyes at these people when they testify and make it clear that anything they say, you know, is going to get reported back. This isn't, this game is not on the level in any way shape or form. 

Harry Litman [00:40:38] Right. 

Ron Klain [00:40:39] This is, you know, one side holding a hearing the other side engaged in a defense campaign for the President. And so it doesn't really matter who Donald Trump has in the room because he has... 

Harry Litman [00:40:50] And without rules. Where, where... 

Ron Klain [00:40:51] Without rules. 

Harry Litman [00:40:51] Yeah. OK. But but. You know, in the actual event... This is a little inside baseball but you guys have such great knowledge, who among the Republicans do you think is actually effective at this game? And who for, in both committees, are the Democrats' best questioners? Cleanest? Most able to answer for, you know, pose follow up questions? Who do you want, in sort of you know staying with baseball, in the third and fourth positions as it were? Matt, do you have a sense of that? 

Matthew Miller [00:41:27] On the Democratic side, among both committees, Adam Schiff is I think, heads above any of the questioners. On the Judiciary Committee, you know David Cicilline is pretty good. Veronica Escobar, who's a freshman, probably won't get to ask a question, is very good and has done very well. Those are some of the tops. 

Harry Litman [00:41:45] Right. And what about... 

Tim Lynch [00:41:45] I would you know, I would add I think Hakeem Jeffries is pretty, pretty strong. On HIP-C, Jim Himes, former prosecutor also pretty strong. 

Harry Litman [00:41:54] HIP-C is...?

Tim Lynch [00:41:55] Intelligence committee. And I think Eric Swalwell was a former prosecutor, if you get him the focus, he can be pretty effective. So you know I think folks who have both a law enforcement or prosecutorial background you know are some... Val Demings is someone else. She was a former chief of police. I've been impressed with her questioning, she's very passionate. 

Harry Litman [00:42:19] Right, from down in Florida. 

Tim Lynch [00:42:20] Down in Florida. Is there anyone on the Republican side who will even try to ask him questions, either easy, you know how however they'll do it, or will it simply be five minute harangues. "Thank you Mr. Chairman I yield my time."

Ron Klain [00:42:36] What I what I'd say is as low as my expectations are for the Democrats, I think it's the most likely dramatic moment in this hearing comes from some Republican overreaching. That is the thing I wonder about Mueller, is I have absolutely respect for Andy's view that he won't lose his cool. But I, but I do think he is a loyal leader of his team. And I think if someone sits there and starts with the, "Twelve Angry Democrats and your political hacks," and so on so forth. I think it's his obligation and I hope he would stand up and defend his team and defend their work and defend their fairness and call out what the Republicans are doing to discourage people from doing the kind of principled public service that Mueller's team did. I say this as someone again who is not a huge fan of their product, but I hugely respect their service and their willingness to do it. And you know, I think if you asked me to predict, what would be the dramatic moment, that well might be the dramatic moment. If he finally stands up and says, Hey look just enough of this. 

Harry Litman [00:43:39] And what about that anyway. I mean, we've been so thirsty about this for three years. Every chance for people to stand up, it hasn't happened. And, and it's not. It is... I mean there are two kinds of duties here, right. There's the duty and the chain of command. But then he certainly takes very seriously the the sort of duty or responsibility to the team. And these are all hand-picked by him. They work for two or three years. They gave up their lives. They did a great product with, with the flaws that Ron's identified. What about it? 

Andrew McCabe [00:44:13]  There's no doubt in my mind he'll defend those folks. I think he tried to do that at the end of his of his public statement a few weeks ago. I just think Ron what he'll do is, he'll dismiss those first two, three waves of criticism, he won't get into like a heated angry exchange. He'll just absolutely deny that his folks were selected because of their political background or deny that he stacked his team with a bunch of "Angry Democrats." He will stand up and defend that team there's no doubt in my mind he will. I think he'll just do it in that kind of straight ahead, dispassionate, kind of the facts only delivery, that he's got. [CROSS TALK] You won't get sweeping grand statements. But it can be very effective. 

Harry Litman [00:44:56] [CROSSTALK] If it's actually in response to a screed that could be in fact a very dramatic kind of 15 seconds. He could sort of you know vaporize somebody with these cool blue eyed stare. 

Andrew McCabe [00:45:09] There's infamous exchange between he and Gohmert. It's been played a thousand times. I think that's kind of what you can expect to see. 

Tim Lynch [00:45:15] But I was going to say I do think it's important how he stands up. You know particularly when you start getting the 12 Angry Democrats, because I think what was very powerful Andy, when you testified before the committee, when the Republicans tried to paint this misinformation that Jim Comey was unpopular in the FBI and everyone wanted to get rid of him. And you stood up and it was very clear that that was bogus. That was a lie. And I think that's important I feel for Mueller at this point, in time to be able to.. 

Harry Litman [00:45:43] How about for the country on that? 

Tim Lynch [00:45:44] know say you know, with the 12 Angry Democrats line, "No. These are you know folks who are doing their job and following the facts.". 

Andrew McCabe [00:45:50] And you know he knows that. Because it was probably the first thing he said to me when I saw him in the days following that testimony which was essentially the first meeting between the Special Counsel team which at that time was no more than the director Jim Quarles and Arron Zebley. They came over to start to get briefed on all the work that we had done to kind of lead up to that point, and that testimony was very meaningful to him. I expect he will deliver that same sort of defense. He just doesn't tend to do it in a very dramatic way. 

Harry Litman [00:46:23] Although there's a kind of anti-drama, drama, I think to you know a sort of Jimmy Stewart, whatever kind of way, that he's very dramatic because the people around him when they're histrionic, his, his you know cool ways think...

Andrew McCabe [00:46:36] I think I'm going to go Clint Eastwood rather than Jimmy... 

Harry Litman [00:46:39] I actually you know this comes, I've seen some Clint Eastwood and but also some Henry Fonda. This guy's the whole deal. 

Harry Litman [00:46:45] OK look normally let's say that you know, Tim is right. Normally one of the things you'd be trying to do is at least set the table for the week, month, two months, that comes after. So if they were thinking in terms of reset and having you know more more time to to go at this in an investigative way, will any of the... does it behoove them to try to identify specific areas that then give them a concrete agenda for a week from now? You know, be it Hope Hicks? I mean there's, they'll still be left with the problem even on a very good day of that they've had for the last 13 weeks of not having a live witness in front of the cameras. 

Ron Klain [00:47:29] Yeah but again I go back to I said earlier, I think this is their most important objective at the hearing, which is to explain what Mueller didn't finish, to explain what leaves, what questions are still unanswered, to explain what corner he didn't touch. I think particularly around WikiLeaks and Stone and Trump Jr. and whatever kind of coordination went on there. But other areas too. I think they have to explain to people why this continues after Mueller's testimony. And I think that's about... You know what, what are the still unanswered questions. I think that's the most important table setting thing they need to do. Because I'll tell you what's going to happen. You know, you go back to what you mentioned before, if this is a baseball game the designated hitter here is Bill Barr. And what I can promise you will happen is at the end of the day, he will do a press conference and he will stand there and in the Department of Justice and announce that basically the hearing proved that there are no crimes committed, that this is all over, that the committee has gotten what they want. Now it's time to move on. I mean he will be the final... 

Harry Litman [00:48:34] And he'll do it before the Six O'Clock News. 

Ron Klain [00:48:37] And he'll do it before the Six O'Clock News. If six o'clock news is still a thing in this country. And and you know he he will try to wrap this up and put a bow on it and say over finished, done, thank you very much. And the Democrats have to get ahead of that and get in front of that because that's the final play here. 

Harry Litman [00:48:54] Wow. OK I was going to ask I mean, do you think they have in mind. Let me just add: Do you think they have in mind what happens a week hence, you know two weeks hence, if everything goes well, Matt, do you know is there an actual, does Schiff have a sense of, "OK I'm going to be going with Lewandowski," or I mean you know is there is it just like, we'll figure it out then we just have to have to have a good day Wednesday and we'll figure it out later?

Matthew Miller [00:49:19] Well they should have a plan. But look... 

Harry Litman [00:49:22] They're the Democrats and it's their committees. Right. 

Matthew Miller [00:49:24] It's been as I said 12 weeks since the report was released, by next week it will be 13 weeks since report was released, they have authorized and sent a bunch of subpoenas to a bunch of witnesses. Do you know how many times they've gone to court to enforce those subpoenas in the twelve weeks. No. Zero. Zero. 

Matthew Miller [00:49:38] The Ways and Means Committee has for for tax returns and they've gone... 

Harry Litman [00:49:41] Belatedly. 

Matthew Miller [00:49:42] Belatedly but they've not gone to court to enforce it, to get Don McGann or any other witnesses they say they really want. So I am a little unclear what their long term strategy is. I think they really wanted to get Mueller and they're going to finally get Mueller although under very restricted terms. It doesn't seem like they're getting McGahn anytime soon. It doesn't seem like they're getting any of the other witnesses they want anytime soon. So I think they're floundering a little bit. And part of it is they can't figure out what to do. And part of it, there is a real disagreement I think inside the House Democratic Caucus about how hard they ought to push. If they, put, you know, and whether they push themselves into an impeachment battle that they for the most part don't want to have. 

Harry Litman [00:50:24] OK. I mean the sort of 64,000 dollar question not just of this panel but the whole week. And let's, let's have everyone weigh in with these sorts of possibly glum thoughts or maybe not. You know what, what is the actual impact of what we see now and sort of political maneuvering and tactics and who's winning on in fact the health, vitality and public confidence of the democratic institutions, whose basic strength we never took as being you know in on, as being up for grabs before? So you know maybe it depends on on the on the 2020 election? But you know we have this huge event that's happened and we've all that sort of underlying everything people have said it's the prospect that the American people won't even know what happened about stuff. And that they'll in a sense get away with you know crimes and abhorrent behavior. You know what is your, what, what's your thoughts about how the health of democratic institutions, like the FBI, appear in a post Trump world, assuming he leaves in an orderly transition some time. Matt let me let me sort of... 

Matthew Miller [00:51:53] [00:51:53]Yeah, so let me sort of... I probably like a lot of us have spent a lot of time worrying since Trump became president about his effect on the Justice Department and his effect on how the public perceives the Justice Department as an independent investigator and arbiter of facts. And after spending a longtime worrying about that, the thing I'm worried about today is not so much whether people perceive the Justice Department being independent or whether it actually is independent anymore. Having watched how Barr has behaved as Attorney General, I have real concerns not just about his counter investigation into the origins, or oranges, of the investigation but I have a real concern about what next year in an election year looks like and whether the President is able to to have another lock her up campaign and is able to push the Justice Department with a willing Attorney General into investigating the Democratic nominee for president you've already seen them pushing around the edges with Joe Biden with some bogus trumped up allegations about him. But it won't be just Biden. [53.1s]

Harry Litman [00:52:47] [00:52:47]I mean that actually changes the national consensus going forward. [3.1s]

Matthew Miller [00:52:50] [00:52:50]That actually is. And so I have a real worry that Trump, Trump after a lot of pushing on the door at DOJ finally has gotten what he wanted with Bill Barr. And he's gotten it with an attorney general who will do it in a way that at times will even appear defensible because the way he's able to present things publicly. And if if he's able, if I'm right and he has accomplished that, who knows if the Justice Department will ever go back. It may go back under Democratic presidents but not Republican ones. We may see this asymmetry between the two parties that we've seen in in other areas spill over to the independent force of law. [32.5s]

Harry Litman [00:53:25] Tim? 

Tim Lynch [00:53:26] Yeah, I mean I think that that is in terms of our you know, our institutions. You know you just saw recently where Barr you know, tried to remove the whole team for the citizenship question and you had a judge fight back and say, "You've got to you know come back with something better because this doesn't make any sense whatsoever." I think that it's going to be real key in terms of you know, if Trump is reelected, a continued erosion and you're seeing it right now. Can we put a stop on that? And can Democrats, in the interim, make sure that they're being more aggressive in protecting these institutions and shining a light on the damage that's being done. Because that's going to be you know, the real challenge here. I think part of what Democrats House Judiciary have struggled with is that they're in a different world. Everyone expected you know in some ways Trump to play by certain rules because that's the way most presidents have. You know, you send people up to testify, you in the end produce documents. I mean when I was on Oversight, in the minority, with the Obama administration I mean, you know, it was a, you know as much frustration as the Obama administration got and they fought on some points in the end they turned over materials. The Democrats you know that are in control of Congress now haven't fully adjusted to a world where you have a president that functions more like a mob boss who has every flunky around him that was willing to do whatever it takes to shut things down. And will say no. And the struggle for Democrats what do we do. And so it's adjusting to a new world. And you know that's what I think is the challenge that we're seeing now. 

Harry Litman [00:55:06] Ron? 

Ron Klain [00:55:07] Yeah I mean I agree with what's been said. I do think that kind of our, a lot of our democratic norms are on the ballot in 2020. And we're gonna make a real fundamental decision as a country. If Trump gets four more years and continues to go down the path he is, ideas like an independent Justice Department or federal law enforcement agency that's insulated from politics will be eroded. I think beyond comprehension and beyond measure. It's crazy to me that Attorney General Sessions is the good old days. [laughter] And I mean truly crazy. And and, so you know, four more years of this, six, five more years of this it's hard to imagine. But it's also won the ballot in a second way which is even if the Democrats win the question will be, what the Democrats do in return. Will they restore these norms or practice Trump-ism from the left? And you know I think those you know, those are hard and difficult questions. And I think you know we a lot of what we believed to have been fixed, or a lot of what I believed over the course of my 25 years in politics and policy, I believed to be kind of fixed beacons of how the system works and how the Justice Department works, have been torn apart the past three years. And it's just not clear what puts that back together or whether or not it gets put back together or not. 

Andrew McCabe [00:56:25] [00:56:25]Yeah. I feel as strongly as the rest of the panelists do about the damage that's been done to the system to the, to DOJ and certainly to the FBI is just it's extraordinary and it, and it all indications are worse for the future. One way that we can you know, somebody's got to stand up and defend these organizations, these institutions, one way that can be done is by communicating what is in that report, communicating it more effectively than Mueller did. We still, you know, we're in a country right now where informed, plugged in, engaged political people are going to town halls of their representatives and walking out saying, I didn't know that the report said anything bad about the President. So somehow we've got to rectify the fact that we're sitting on this massive evidence. It's not the greatest report in the world there are all kinds of ways that I think it could have been better as well. But let's at least use what we have and that's what the Democrats should be trying to accomplish next week. [55.8s]

Harry Litman [00:57:22] I mean I'll just say you have to hope and believe that if America, the American people really understood the kinds of stakes, that these last four answers present that the solid majority of them would see this as as important and want to push back. And among the more vexing aspects of these last few years is not, not simply that he's gotten away with it but the apparent indifference or even ignorance that's about all that's happening. 

Harry Litman [00:57:52] OK. So on that cheery note I want to thank very much, it's been a great discussion really. So Matt, Tim, Ron, and Andy, thank you so much. [applause] Questions?

Questioner #1 [00:58:09] So a simple question maybe, Will we ever find out what happened to the counterintelligence investigation?

Andrew McCabe [00:58:18] You might not. You might not. Most counterintelligence investigations don't come, get aired out kind of in the light of day. I of course don't know what's happening with that now. I would expect that lingering counterintelligence concerns are still being followed up by the FBI, which was the case when I was there, even during dependency [TK TERM] of the Special Counsel team. But by definition those, those cases are, are conducted in a classified context that's designed to protect sources and methods and things like that. 

Questioner #2 [00:58:57] Thanks everyone. That was a fascinating talk. Does anyone think that there is value in a line of questioning related to the OLC memo, up to and including but for it and your fundamental fairness concerns would you have charged the President? That seems like to continue the analogy in either "Kc" at the bat or a natural moment. Is that too big a risk to take?

Harry Litman [00:59:19] [TK SPEAKER] I don't think it's a huge risk but I and I think it'd be the bet. Maybe the single best answer that could happen. I just don't see it happening. 

Matthew Miller [00:59:26] [TK SPEAKER] He's not going to answer it. I don't think. I don't think he'll answer it. Right? 

Harry Litman [00:59:31] You know... It's a 30 second time. 

Matthew Miller [00:59:33] He'll say, We didn't even get to that question and we didn't even consider that question because the memo wouldn't be appropriate for me to speculate about it. Something like that. 

Harry Litman [00:59:39] Although with that said, I mean one of the reasons when you read carefully that I think he did conclude, it just doesn't seem like what prosecutors do. That they actually came and, Oh yeah we're about them crossed the finish line. But let's not even think about it anymore. 

Matthew Miller [00:59:52] Right. 

Harry Litman [00:59:53] Because we have this memo. I think it's quite likely they went through the whole analysis. That's what they do. And then the memo memo was it was overlain. And that'd be great to know if it were the facts. But again I don't think we'll know. 

Harry Litman [01:00:09] If you like what you've heard, please tell a friend to subscribe to Talking Feds podcast 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 Fe's related content. You can also check us out on the web at Talking Feds-dot-com where we have full episode transcripts. 

Harry Litman [01:00:36] Thank you for tuning in and don't, well maybe worry, but if.... As long as you need answers the Feds, at least, will keep talking. [applause]

Harry Litman [01:00:53] Talking Feds is produced by Jennie Josephson. Dave Moldovan, Anthony Lemos and Rebecca Lopatin. 

Harry Litman [01:01:01] David Lieberman is our contributing writer, production assistance by Sarah Phillipoom, Michelle Bo Liu and Courtney Columbus. Thanks to the incredible Philip Glass who graciously lets us use his music Talking Feds is a production of Dalito LLC. I'm Harry Litman. See you next time.