TF 25: The Witness Has Left The Room

Congressman Schiff [00:00:03] [MUSIC] Mr. Mueller and Zebley, would you please rise and raise your right hands to be sworn in. 

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Robert Mueller [00:00:08] Over the course of my career, I've seen a number of challenges to our democracy. The Russian government's efforts to interfere in our election is among the most serious. 

Congressperson #2 [00:00:18] So what did you determine about the President's credibility? 

Robert Mueller [00:00:20] And that I can't get into.

Congressperson #3 [00:00:22] Were the president's personal finances outside the purview of your investigation?

Robert Mueller [00:00:26] I'm not gonna get into that. 

Congressperson #4 [00:00:28] Did you want to interview Donald Trump Jr.? 

Robert Mueller [00:00:30] I'm not going to discuss that. 

Congressman Nadler [00:00:32] And what about total exoneration. Did you actually totally exonerate the President? 

Robert Mueller [00:00:36] No. 

Congressman Schiff [00:00:37] You have served this country for decades, you've taken an oath to defend the Constitution, you hold yourself to a standard of doing what's right. 

Robert Mueller [00:00:48] I would hope. 

Congressman Schiff [00:00:50] You have. I think we can all see that. And befitting the times I'm sure your reward will be unending criticism. [Laughter] But we are grateful. 

Harry Litman [00:01:10] Welcome to a very special episode of Talking Feds, a prosecutors' roundtable that brings together some of the best known former Department of Justice officials for a dynamic discussion of the most important legal topics of the day -- including the investigations of the President and his circle. Today, we're going to discuss Robert Mueller's historic testimony before Congress and what happens next in the wake of it. It was one of the most anticipated events since Donald Trump first said: "WikiLeaks, if you're listening...." But did it move the needle in any material way? I'm Harry Litman. I'm a former United States Attorney and Deputy Assistant Attorney General and also line prosecutor, and a current Washington Post columnist. 

Harry Litman [00:02:00] Today I'm joined by a tremendous panel with three people who can offer insight into Mueller's testimony and what, if any, impact it will have on the American people. First two returning Feds, both of whom worked closely with Robert Mueller, and joined us for our pivotal and I think in retrospect prescient episode "The Mueller We Know.". 

Harry Litman [00:02:25] Melinda Haag is the head of global litigation practice at Orrick, Herrington and Sutcliffe, and the former United States attorney for the Northern District of California and a longtime assistant U.S. attorney before then. Welcome back Melinda. 

Melinda Haag [00:02:39] Thank you, Harry. 

Harry Litman [00:02:40] And Martha Boersch is the founder of Boersch Illovsky and a former assistant U.S. Attorney for Northern California. When Bob Mueller was the U.S. Attorney there. And in addition to handling a variety of white collar crimes, she also worked criminal matters related to former Soviet bloc countries. Martha, good to see you. 

Martha Boersch [00:03:00] Thank you, Harry. 

Harry Litman [00:03:01] And finally we are thrilled to welcome our third guest. Filmmaker, actor, writer, producer and director, Rob Reiner. Rob is not a former Fed but he does have the honor of having his acting work on the groundbreaking TV sitcom "All In The Family," discussed by former President Nixon and his staff on secret Oval Office recordings. Rob directed movies that have had a profound impact on American culture. "This is Spinal Tap," "Stand By Me," "The Princess Bride," When Harry Met Sally," "The American President," "Misery," "A Few Good Men," "The Bucket List," and so many more. And as important for current purposes, he has been a keen and frequent participant in the public debate over the Trump administration's conduct for two years now and you can regularly see him in TV panels discussing the developments. And I think it's fair to say presenting a dyed in the wool opponent's view to the President. Rob, thank you very much for welcoming us into your home. 

Rob Reiner [00:04:11] Yeah. Thanks for having me Harry. 

Harry Litman [00:04:11] And thank you for joining us on Talking Feds. OK. I'd like to divide our time between assessing Mueller's testimony and then analyzing where it leaves us. Momentous day that we could dissect from any of a dozen angles and yet on the other hand it's already being treated by many as a sort of low impact day and the postscript on a now closed or closing book. Many too, perhaps reacting to the outsize expectations that his testimony had, are suggesting that it really fell flat overall. And yet as we heard in the lead to the show if you itemize the hard blows that landed against the President, the damage seems substantial. 

Harry Litman [00:04:56] So let's start with a couple broad gauge questions and as everyone knows here jump on in any time, don't worry about interrupting, it's a lively discussion here in Mr. Reiner's living room that we're honored to be along with some fantastic baseball and movie memorabilia. OK, so a couple broad gauge questions. First, did the committees do all they could yesterday? Is there any "Monday morning quarterbacking" to offer or was it basically the best that could have been expected? Anybody. 

Rob Reiner [00:05:32] Well,l I mean my feeling about it is we're talking about the law, now. And unfortunately we've been living in a reality TV world with this President who's certainly not, not a govern -- he has never governed anything, he's not successful, he's hasn't done anything except he has been successful as a reality TV host. 

Harry Litman [00:05:56] Failure in business even. 

Rob Reiner [00:05:57] Yeah. No, no, nothing he's a failure in everything, except this one thing and that's promoting himself and knowing how to do that. So we have this now culture that we're living in where we expect things to be showmanship. We expect there to be dramaturgy. And on that level,  yeah, you'd say, well the lead character in the show Bob Mueller's, you know, maybe past his prime you know, maybe he's a little halting, you know faltering in a way. But if you just look at what he said, about the President and what was actually in the report, because I said this for a long time and this is nothing new everybody knew that nobody had read the report including people, members of Congress. I mean, you heard the other day that Christopher Ray had not read the Mueller Report. So you know nobody had read it. And so the public had no idea what was in it. 

Harry Litman [00:06:49] Do they now though? 

Rob Reiner [00:06:50] No. No. 

Harry Litman [00:06:51] That's an issue. 

Rob Reiner [00:06:52] Not yet. If we were to find what Trump did during this 2016 election and beyond that, you'd have to start an impeachment inquiry where the first witness would be Bob Mueller, to explain to people what was found. Then you have another witness after that, and after that, and by the end of it, if it's orchestrated properly and the public will have gotten all of it. They didn't, it took them a long time to understand what had happened in Watergate with Nixon. 

Harry Litman [00:07:24] That's a good point and then it cascaded pretty quickly. 

Rob Reiner [00:07:26] It does now so. So here's the thing. If you look at what he put out there. It's devastating. I mean there's so much criminality in that report and there's more criminality than any president in my lifetime. And so if you strip that away you know you have impeachable offenses, right now. So, unfortunately you look at the headlines and they all talk about Mueller's performance. They're not about the substance of what, any of the substance of what he said. 

Harry Litman [00:07:57] Well, so let's talk about that you guys. I mean so you know, unfortunately is it true that on the one hand we had seismic revelations, at least for people who hadn't read the report. But on the other, nobody really was feeling the vibrations? 

Martha Boersch [00:08:11] Oh I completely agree with Rob, that the problem is we're in this culture right now, this reality TV culture where people expect showmanship like Trump showmanship, and to the extent that Congress or anybody else in the news thought they were going to get that from Mueller, there was no way they were ever going to get that from Mueller. So, I don't think to the extent people are criticizing or critical of his quote-unquote performance yesterday, he's not a performer. That's not his job. He was never going to do it. Bob was adhering to a script. He said, I'm sticking to the report. He stuck to the report. So to me, it was not unexpected. And it's not surprising that some parts of the public or the news media are disappointed that he wasn't all fire and brimstone. But Bob was never going to do. 

Harry Litman [00:08:51] Although but as Rob says the the itemization of, if you actually you know, no exoneration, lies in written questions... 

Martha Boersch [00:08:59] That's exactly right. 

Harry Litman [00:08:59] ...substantial evidence of, I mean if you if you'll list them there they're pretty damning. But there is some sense or is there a window that like even so even hearing it somehow people who were already not disposed to hear it somehow didn't? Or has the debate now been changed or the terms of it?

Melinda Haag [00:09:19] Well I actually hope that once people digest what happened yesterday that they will put the performance aside and start thinking about what he said. Both in the report and when he was in front of those members of Congress, yesterday. I mean he said that Trump was not, the President of the United States was untruthful, in written answers to questions to the Special Counsel. 

Harry Litman [00:09:41] What about that? 

Rob Reiner [00:09:41] Is that not perjury?

Harry Litman [00:09:41] That is perjury. 

Melinda Haag [00:09:42] I believe it is. 

Rob Reiner [00:09:44] They asked. It was under oath. 

Melinda Haag [00:09:45] It's a false statement. 

Rob Reiner [00:09:46] ...and they said he was under oath. 

Melinda Haag [00:09:48] Yes. Yes at a minimum obstruction, false statement. If it was under penalty of perjury, certainly perjury. He agreed with Adam Schiff... 

Harry Litman [00:09:57] That was a good moment, yeah. 

Melinda Haag [00:09:57] ...that that it would be unethical, unpatriotic, wrong and possibly criminal, certain conduct that he was discussing with Adam... 

Harry Litman [00:10:07] The flirtation with WikiLeaks.

Melinda Haag [00:10:08] Right. I mean that's astonishing. 

Harry Litman [00:10:09] That was actually where he did go outside a little, like, this is problematic to say the least. 

Melinda Haag [00:10:13] Right. And I think that's where you can get Bob to go beyond the report, if you can sort of tap into that former Marine, unbelievable patriot, that's where you're gonna get him to, to go beyond the four corners of the report and say, That's right. It's unethical it's unpatriotic and it's wrong and it's possibly criminal. 

Harry Litman [00:10:30] By the way. This is off, off the topic a little. But I actually thought, there's speaking and in dramatically terms there was an anti-drama, drama to it. You know, "Mr. Mueller comes to the Hill," even if he was you know fatigued or whatever. And it was him with with everybody all around. But what, you know, of course at the end of the day will, we want to know that the substance will hit home. And is it fair to say that it's up for grabs right now? What's gonna, and what's going to determine it? 

Rob Reiner [00:11:02] From a political standpoint it's definitely up for grabs. I mean because, you know you have Speaker Pelosi basically saying she doesn't want an impeachment inquiry. And from what I understand Chairman Nadler is pushing very hard for that. [Harry Crosstalk off mic]. 

Rob Reiner [00:11:16] You know, Mueller did talk about the fact that but for the fact that he was a sitting President, he was not allowed to indict him. And so the only remedy left is impeachment. And as we know impeachment is not necessarily crimes, although they can be. But what was laid out in the second, in the second, which was actually the first volume, was to talk about collusion. That was more damning in a way, from an impeachable standpoint, than even the obstruct, the criminal obstruction of justice charges. Because when you have somebody who is basically aligning themselves with a foreign enemy power for his benefit, not just from a electoral standpoint, but from a monetary standpoint, that to me is, yo,u know, that's the big impeachable offense. And those are political. They don't they're not necessarily crimes because they said it doesn't rise to the level of conspiracy, which is in the statute, collusion which is not in the statute. But if you just think about the term "collusion," there's tons of collusion in, in the Mueller report just the fact that his campaign manager would share polling data... 

Harry Litman [00:12:26] Amazing, right. 

Rob Reiner [00:12:26] ...with, with with a foreign, you know, operative, and campaign strategy of what states they were going to target towards the end of the election that to me, that's the definition of collusion. 

Harry Litman [00:12:38] And Mueller by the way is very strong on that saying we have a real problem in front of us. So, I mean maybe there are certain sound bites on the Trump side that have been put to bed, maybe not but but are, we will, will our debate now no longer have exoneration, no longer, you know are, are the Republicans playing on a different field? Can Mitch McConnell continue to be completely... 

Rob Reiner [00:13:01] Yeah. Look what Trump did today. 

Harry Litman [00:13:04] Yeah. 

Rob Reiner [00:13:04] You know, they asked Mueller was this a hoax? No. Was it a witch hunt? No. What did Trump say today? Witch hunt. Hoax. That's all he says and so he's got 40 percent of the country that are the Fifth Avenue people. I mean he actually did commit a violent crime. 

Harry Litman [00:13:22] Middle of... Right. 

Rob Reiner [00:13:23] A violent crime on Fifth Avenue, he went and raped a person at Bergdorf's. He's got that 40 percent and they're not going anywhere. 

Harry Litman [00:13:30] All right. And you didn't think by the way they were going anywhere when you talk about your high expectations. They were never gonna be going anywhere. 

Martha Boersch [00:13:36] They were never going to go anywhere. 

Harry Litman [00:13:37] So was the notion that 5 percent might be going somewhere? Or were just people not thinking very clearly about the potential impact of the Mueller testimony? 

Martha Boersch [00:13:48] I mean my sense is that the best the Democrats could have hoped for from it was to get those Democrats that are already anti-Trump more on board sort of an impeachment wagon. And that was the best they were going to get out of it. And I do agree that... 

Harry Litman [00:14:03] The Democratic voters or the Pelosi's of the world? 

Martha Boersch [00:14:05] The voters and the Pelosi's of the world. But I do think that the Russian collusion aspect of the report is to me the most serious, in a way. And I think to Bob too. 

Harry Litman [00:14:17] Let me ask you guys because you were, you know, by the way though I really recommend to listeners going back to "The Mueller We Know," because the Mueller that Martha and Melinda knew in that last podcast really was the Mueller we saw yesterday. Maybe people made too much of it on the performance side. But you know there was, there seemed to be some fatigue on Mueller's part. Did you, as people who knew and worked with him, feel that he was off his game at all or what's your, what's your thinking about, you know the Mueller that you saw yesterday? 

Melinda Haag [00:14:49] You know I think he did exactly what he set out to do. He does not want to be part of the story. He does not want to be part of the drama. He doesn't want to be drawn into a political fight by either side. And the best way to do that I think is to behave the way that he behaved yesterday. Monosyllabic answers. Refusals to answers. Referring you the report. Refusing to read the report, read from the report. 

Harry Litman [00:15:15] Wasn't that interesting? He wouldn't even... Any time anyone asked, he would ask the member to do the reading. 

Melinda Haag [00:15:23] Apparently that was worked out in advance that he let them know I am not going to read it, because he doesn't want to be part of the story doesn't want to be drawn into this. 

Rob Reiner [00:15:30] Well it's interesting too because in a couple of the footnotes in the report that the term impeachment is mentioned. And I think that the Democrats were hoping that the word impeach, you know, if they got him to read those those footnotes that the word impeachment would come out of Mueller's mouth and they would have that clip but he wasn't going to go there and I don't think we should even be talking about his performance or the Mueller that he was. Just listen to what he said. Listen to what's in that report. 

Harry Litman [00:16:01] Now there is an issue of impact, this is sort of a legal insider's point that I think it's fair to make. I thought the Dems were both sides actually, were more disciplined than I thought they were going to be, but the Democrats I thought were both coordinated and had lines of questioning. But it was necessarily what the lawyers call what we call leading questions. It was never going to be, there was an early effort I think by Nadler: "Tell us in your own words." And he said, nah, I don't think... page 72. So that required them for the various revelations that Rob listed that were so damning in the aggregate they had to come out each in terms of leading questions. It's true, you know it's true but that was the best way they were going to come out. 

Rob Reiner [00:16:42] And that was the, that was the charge for the Democrats to do that. 

Harry Litman [00:16:46] And something they had to do pretty darn well. 

Rob Reiner [00:16:48] All they could do was make sure that people heard what was in the report by reading it. And you know nobody sat there and watched for, you know, what is it five or six hours whatever it is I did because... 

Melinda Haag [00:16:57] Me too. [laughter]

Rob Reiner [00:16:59] It's not, you know I'm like a moth to a flame. But I don't think the public did that. So they don't know they're gonna have to hear it over time like the woman in the Justin Amash town hall meeting. She, she had no idea there was there were damning things in the report. 

Harry Litman [00:17:13] Yeah. Amazing.

Rob Reiner [00:17:14] So the public has to become like that woman in the Justin Amash town hall. 

Harry Litman [00:17:18] But more was focused even to this point he didn't want to make any sort of 45 second statement because that would be immediately transplanted to TV at 6:00 p.m., played again and again. 

Melinda Haag [00:17:29] Right. 

Harry Litman [00:17:29] And as you say not part of the story. 

Melinda Haag [00:17:31] Think about Jackie Spear's question: I'm going to give you almost two minutes to tell the country what they should glean from your report. He answered in one sentence and then she yielded the time. 

Rob Reiner [00:17:42] She yielded the time back. 

Melinda Haag [00:17:43] They needed to understand he's not gonna take the bait. He's just not going to do it. He didn't want to be there. He made it very clear to everybody he didn't want to be there, he made it very clear he was standing on his report and that this is all he was going to do. I think he, I think his conduct in that hearing yesterday was exactly what he set out to do. 

Harry Litman [00:17:59] Yeah. Did you have a favorite moment. That's a little off point. But anything that you know you were either you know... 

Martha Boersch [00:18:06] No, I mean the moments that to me sort of rang... showed the real Bob was when he was defending his staff. Number one. And number two, when he was asked questions about the political affiliation of the people on his team and he said, We don't ask that at DOJ. And that's... 

Harry Litman [00:18:21] Twenty-five years. 

Martha Boersch [00:18:22] ... totally true. You know, I don't think you can ask that when you're hiring somebody at DOJ. So, I mean to me... 

Harry Litman [00:18:27] I wonder if they do today. 

Martha Boersch [00:18:28] ... that just shows the degree of integrity that Bob has and the lack of sort of a political bone in his body that he's got. 

Harry Litman [00:18:35] So you were really kind of watching through the prism of Mueller it sounds like, knowing him so well. 

Melinda Haag [00:18:40] One of my favorite moments knowing him is that when he when he tried to compliment Andrew Weissman, who you know he thinks the absolute world out yeah. And it was such a Bob moment where he said, "Well, Andrew Weissman is you know among the more now among the better people on the team," I think, something like that. That was a huge praise for Weissman. [crosstalk]. It's very Bob. 

Rob Reiner [00:19:05] My favorite moment actually came from a question that was asked by one of the Republicans, when they said, "So what are you saying that since a sitting President can't be indicted, that he could be indicted after he leaves office?" And he said "Yeah." [laughter] He says, wait a minute, you're saying.... [laughter] It was like cementing that idea. That was you know, was a Republican that helped. 

Harry Litman [00:19:27] Right. Yeah. They did what they did the same mistake with when Ted Lieu first had his good line, former Talking Fed, a good line of testimony about the OLC report. You could see that, I forget the Republican woman from California, tried to get him to walk it, to walk it back. 

Rob Reiner [00:19:46] But you know it's something it's, it's really a very gray area. The way, he expressed basically that the idea was that we can't indict a sitting president. So therefore you know essentially trying to get the idea that that this is now in the Congress's bailiwick. And he kind of said that but then he walked it back. And what he was saying is I didn't even consider the idea of indicting. You know, I mean that was, that was something from the get go that he, it wasn't like he came to the end and said, "Oh you know, you can't indict."

Harry Litman [00:20:17] So I wanted to ask you to what you actually thought about that. Rob, I actually worked on the letter that the thousand prosecutors, thousand prosecutors, signed. But, but, one of the things that just struck me, you know, you're an Andrew Weissman or whoever you are, and you've worked all your life deciding whether a certain modicum of fact and law passes the line for indictability. It just seems to me unrealistic. I understand they weren't going to bottom line but did he do you, do you really think inside the team they just said we're not even gonna think about it? "We're not, we, we're finding substantial evidence. Oh does that mean the third element says... Oh we're not even..." It just seems to me that's what prosecutors do. And in there, in a formal way they might not have bottom lined, but I can't see how they, they would have approached evidence in the law, otherwise. 

Melinda Haag [00:21:13] My guess is they each have an opinion about whether that contact constitutes obstruction of justice. And they're just not going to say it. 

Martha Boersch [00:21:22] And I think that you know part of part of the issue is from a legal perspective for, to charge obstruction of justice. It's one thing to have probable cause but you've also got to have you know sufficient evidence to get a jury to convict. And if you're told by the OLC that you can't even indict in the first place you've now removed one of the elements that a prosecutor has to consider when they're deciding whether to indict. So that, OLC memo does create a problem for them, I think, in terms of whether or not they're going to make a recommendation and also the you know, that obstruction of justice statute is pretty broad, but there are you know, it's not necessarily a slam dunk case. That said there's a lot of conduct in that report that if it were my client and I've had many clients, they would be indicted in a heartbeat, you know for that same conduct, so. 

Rob Reiner [00:22:08] You know, I'm going to ask you guys because you guys will have the the the thoughts about what to do. I mean the idea of an OLC rule or policy of not being able to indict a sitting president seems contrapuntal to the idea that no one is above the law. I mean, if you can't indict then where is the remedy here. And from what I understand and you guys can tell me this came out of Watergate these rules came out of Watergate because of what was happening with Agnew. Agnew was breaking the law and he was about to be indicted. They wanted him to be indicted and they were concerned that Nixon was also breaking the law. And so what do you do if Nixon goes and then you've got nobody there, you know, as President and so they made this rule up, which seems to me it's a bad rule because it's not based, nobody's ever challenged it constitutionally. Nobody's ever, there's never been a case that said, "Is it constitutional to indict a sitting President or not?" We know it's OK to charge a sitting President with a with a civil crime that happened to Clinton. But on this criminal thing, what can be done? What should be done. I mean because to me that's one of the big reforms that needs to come out of this. Well how do you handle a lawless president like this?

Martha Boersch [00:23:36] Well, I think it's the impeachment process. So you know, and I mean, I do, I do think there's a valid reason not to indict a sitting president because you do run the risk that you know, the indictment process, the criminal process will be used for purely political purposes on either side of the aisle. Right? It's not just Democrats against Republicans. So and, the criminal charge, carries obviously really, really serious consequences. So to me, I think the answer is and I think this was what Bob and them were thinking, the answer is impeachment. That's what the Constitution sets up and that's the remedy. 

Rob Reiner [00:24:08] Well, if that's the case then shouldn't it be that the Special Counsel should say this is now up to the Congress to decide whether or not they want to impeach, which is what Ken Starr did in his report. 

Martha Boersch [00:24:23] Bob kind of says that in the report. 

Rob Reiner [00:24:25] No, but it doesn't say though. 

Martha Boersch [00:24:26] He doesn't come right out. 

Rob Reiner [00:24:27] So I think you can say it. You dont have to say you should impeach, all you have to do is say, "Because we can't indict a sitting President. It's up to Congress now to decide what you want to do with all this information and all this... [crosstalk]

Harry Litman [00:24:41] But it is interesting you can take, I have taken him. I mean, I felt this was a failing on his part. There were a few times where he as much as said things that was one of them. And I think the obstruction was was another, but he decided that he needed to stay his hand on just stitching it up with the actual words. And among other things you know it led to a lot of confusion. But I did want to add something to Rob's point and I and maybe this is in disagreement with you, Martha. So, a very big thing here. First the opinion itself. I think and there are two. There was another one that in 2000, that reached the same conclusion, but for fairly mucky threadbare policy purposes, the very argument in fact that failed in Clinton v. Jones is essentially the one in the OLC memo, because criminal is more distracting, as of course, it is. But it's just from OLC, and it really should be in some you know, broad good government sense, subjected to judicial review and the way it's set up now, it can't happen. Because unless the department goes forward with some kind of indictment there's no, as the lawyers say justiciable controversy to bring it to the courts. So we are in this kind of stalemate that in a sense is a shame. I could see a reasonable honest court reaching this conclusion. Though I think it would be for different reasons than is in the memo but we'll just never know now. We're stuck. 

Rob Reiner [00:26:11] But I'm asking Martha because I understand the idea of willy nilly using it as a political tool to get back at... But let's just say for the sake of argument the President shoots somebody in the Oval Office. Shouldn't that be something that we are allowed to indict. I mean... 

Martha Boersch [00:26:29] Yeah, no I don't disagree with that. But I again I think isn't the answer an impeachment and then the political forces cause the resignation and then if you want you can indict him after once they're out of the office. 

Melinda Haag [00:26:39] I think one of the problems with and I completely agree with you in this context but it assumes that we trust the prosecutors who have the power to bring those charges. So if, and assuming that we can't... 

Rob Reiner [00:26:51] Which is also political. 

Melinda Haag [00:26:52] Right and assuming that we can. I mean the problem with an indictment being allowed against a sitting President is then there are 93 U.S. attorneys in the country that could do that. They could just on their own decide to indict the President, the attorney general also has the power to indict the President. And if we can't, if we don't trust those people. It's very dangerous. 

Rob Reiner [00:27:11] Right then. 

Harry Litman [00:27:11] It is interesting. That's what happened in Agnew. 

Rob Reiner [00:27:13] Then, I understand that. Then it should be laid out when a special counsel finishes a report he says: Now this is up to, you know, if there's enough evidence of wrongdoing and this is up to now the Congress to decide. [Crosstalk]

Harry Litman [00:27:28]  It's funny. That is what happened in the Agnew case just one lone 34 year old U.S. attorney. But you wouldn't, there are statutory ways of keeping it from being any of the 94. Well I think what I mean more broadly we are in this situation, in the last few years, where there has to be some remedy for ultimate misconduct. And yet it appears that maybe there's not. We have, I mean typically what we I think we've depended on in these broad situations including Watergate, is certain cultural norms and a general investment in democratic institutions. That's been precisely what Trump and his supporters have been just unabashed about trashing trashing trashing. And that that's what's so worrisome about the juncture we find ourselves in. 

Rob Reiner [00:28:20] And you hear the term all the time: No one not even the president is above the law. Well if he can't indict a sitting president and you've got a polarized Congress where there is no chance that an impeachment could result in a conviction in the Senate, then he is above the law. 

Melinda Haag [00:28:38] Right. And if the statute of limitations runs before he's out of office, yes, you're right. 

Harry Litman [00:28:43] Yeah, I think there are ways to think about statute of limitations, but basically I agree. And it's, I mean we are in, you know it's it's something to try to puzzle over in coming years if you know, assuming Trump has some transition from power eventually. Before moving to where it now leaves us, we wanted as we did up front of the show, play a interesting and important piece from former Talking Fed Ted Lieu, and then later about whether or not Mueller found an obstruction of justice here. 

Congressman Ted Lieu [00:29:20] I'd like to ask you the reason again that you did not indict Donald Trump is because of OLC opinion stating that you cannot indict a sitting president, correct? 

Robert Mueller [00:29:29] That is correct. 

Congressperson #7 [00:29:31] Your investigation found that President Trump directed White House Counsel Don McGahn to fire you, correct? 

Robert Mueller [00:29:40] True. 

Congressman Cicilline [00:29:41] So, right after his White House Counsel Mr. McGahn refused to follow the President's order to fire you, the President came up with a new plan, and that was to go around all his senior advisers and government aides to have a private citizen try to limit your investigation. 

Congressman Schiff [00:29:55] Well your investigation is not a witch hunt is it? 

Robert Mueller [00:29:57] It is not a witch hunt. 

Louie Gohmert [00:29:58] What he is doing is not obstructing justice. He is pursuing justice. And the fact that you ran it out two years means you perpetuated injustice. [crosstalk]. 

Congressman Nadler [00:30:11] The gentleman's time has expired the witness may answer the question. 

Robert Mueller [00:30:15] I take your question. 

Congresswoman Speier [00:30:16] Did your investigation find that the Russian government perceived it would benefit from one of the candidates winning? 

Robert Mueller [00:30:23] Yes. 

Congressperson #11 [00:30:23] And for each of those 10 potential instances of obstruction of justice, you analyzed three elements of the crime of obstruction of justice and obstructive acts. A nexus between the act and an official proceeding and corrupt intent. Is that correct?

Robert Mueller [00:30:38] Yes. 

Congressperson #12 [00:30:39] It was not the special counsel's job to conclusively determine Donald Trump's innocence or to exonerate him, because the bedrock principle of our justice system is a presumption of innocence. It exists for everyone. Everyone is entitled to it including sitting presidents. 

Congressman Quigley [00:30:56] Donald Trump, October 31st 2016: "Boy, I love reading those WikiLeaks." Donald Trump, November 4th 2016. Do any of of those quotes disturb you, Mr. Director?

Robert Mueller [00:31:09] Problematic is an understatement. 

Congressman Himes [00:31:12] We have an election coming up in 2020, Director. If a campaign receives an offer of dirt from a foreign individual or a government, generally speaking should that campaign report those contacts? 

Robert Mueller [00:31:22] Should be and it can be, depending on those circumstances, a crime. 

Congressman Himes [00:31:29] Uh, uh, uh, I yield back the balance of my time. 

Harry Litman [00:31:33] OK so let's turn our focus forward. We know as Rob was mentioning that the Democratic leadership is still at odds. There was a closed door meeting after the Mueller testimony where Pelosi, I think was adhering to her view, not yet, not yet. Nadler and Schiff, and now some 80 or so Democrats are saying, "Yes, now." for an impeachment inquiry. This of course as Congress is leaving for August to return to a presidential campaign in full bloom. Let's start here. It was noteworthy to me that the end of many of the Democrats presentation they gave a little colloquy basically making a pitch for we really need to keep going and looking and having further investigation. Did they get any purchase here? Did they to the extent there was some erosion of the Trump views? Do you think there's any further public appetite for more congressional investigation going forward? 

Rob Reiner [00:32:36] I think there's appetite for more investigation but it's not going to be effective unless they have access to materials and to witnesses. And the only way they're going to do that is to announce a formal judicial proceeding. And you know, I've talked to Laurence Tribe about this and there's a number of constitutional scholars... 

Harry Litman [00:32:56] Former Talking Fed also. 

Rob Reiner [00:32:57] Is he a Talking Fed? Ok. And they all say that if you announce a formal impeachment inquiry that you become a formal judicial body then you can expedite access to documents and compel testimony a lot more easily. 

Harry Litman [00:33:14] So, let me spell out the argument, so the.. So I think, I think it's right that if you under the statute, how do you get grand jury material? How does Congress get it? There was a body of thought that, that a judge could just give it to him pursuant to the judge's inherent authority that's been slapped down. But there's this specific statutory argument that says if it's pursuant to a judicial proceeding, the word Rob used, but that is generally considered to include an impeachment inquiry so at least they get the keys to the kingdom as far as the grand jury goes. 

Melinda Haag [00:33:46] The already existing grand jury... 

Harry Litman [00:33:48] The already exising, because right now right they're going to anything they want to get from Mueller's investigation the DOJ will absolutely say no. Don't you agree?

Melinda Haag [00:33:56] Oh absolutely. So do you think there is more. I mean do you think there are some bombshells that Bob uncovered and his team uncovered that aren't in the report there. 

Rob Reiner [00:34:04] There may or may not be but again there doesn't have to be because what we know already is more damning than any President has ever faced and all that needs to have happened is for the public to see it. So, if they can hear it if they can have people testify to say what's there and by the way they didn't know about the Nixon tapes until they got into it. Yeah. You don't know where something's going to happen as you unfold and as you have things unfold the audience the public they get more and more and more and more engaged. 

Melinda Haag [00:34:36] That's a good point. 

Harry Litman [00:34:37] And another lawyer's point to this one. What don't we have we never seen the agent reports like the 302's, if you call somebody and you have materials, any kind of evidence, e-mails, whatever, that you're questioning them with, so much more effective than just saying, "Well here's what Mueller said in his report.". 

Martha Boersch [00:34:53] But that report is pretty detailed. If you actually read it. I mean there's a lot of information there and I was pretty surprised at how little was redacted at the end of the day. [crosstalk] I don't know how much more you're going to get if you get access to the already existing grand jury material. I doubt seriously, that Bob or any of the rest of that team, deliberately hid inculpatory evidence. I mean, I just don't think they would have done that. I think that report was pretty thorough. I do think that you know to the extent that the public, you know, it's all about reality TV these days, to the extent the public is not going to digest it, it's not going to bother to read it or learn it, unless there's some sound bite witness in front of Congress, then maybe that's what you need if that's your goal at the end of the day. But I don't think getting the grand jury material is going to reveal anything... [crosstalk]

Rob Reiner [00:35:41] You can compel witnesses. 

Martha Boersch [00:35:43] Yes you can compel witnesses to come and testify, right. Exactly. 

Harry Litman [00:35:46] And who would you like, let me ask you guys that, if you have, you know, one or two cards to play here, who would you be compelling? 

Melinda Haag [00:35:52] To have testify in front of the American people? I think McGahn. I think if people could see... 

Harry Litman [00:35:56] Agree McGahn. 

Melinda Haag [00:35:57] What he has to say it would be it would be stunning. 

Rob Reiner [00:36:01] McGahn, Corey Lewandowski, Hope Hicks... 

Harry Litman [00:36:02] Hope Hicks, me too. 

Rob Reiner [00:36:06] There's a few others that was mentioned... 

Harry Litman [00:36:07] Bannon? What do you think about Bannon? 

Melinda Haag [00:36:10] Bannon? He's too much of a wild card. 

Rob Reiner [00:36:10] Who was the other one that was mentioned in the report? [crosstalk]

Harry Litman [00:36:14] Oh that's right. Very good. And it's really his... 

Martha Boersch [00:36:15] Eisenberg, somebody... John Eisenberg?

Melinda Haag [00:36:17] Woman. 

Harry Litman [00:36:17] She's the one who wrote all the notes. She's actually a deputy counsel. She's a pretty credentialed lawyer in her own right. That's a yeah, that's a big one. 

Rob Reiner [00:36:25] Yeah, I mean and then you can also ask... 

Harry Litman [00:36:28] Cohen? 

Rob Reiner [00:36:29] Ask Cohen, ask Don Jr., ask Kushner. And if they refuse or they want to take the Fifth that says something too. Whatever it says. Hope Hicks she should come back. 

Melinda Haag [00:36:40] So we need to do more reality TV, but just on our side. 

Rob Reiner [00:36:43] Well look at, look at... 

Melinda Haag [00:36:44] Buy into it. 

Rob Reiner [00:36:45] Watergate was. Watergate, they had all the players. I mean they had everybody there. I mean do you remember? I mean I don't if you remember during that, well after that was the Iran-Contra hearings and the day that Fawn Hall showed up, who worked for Ollie North, I mean she's a very beautiful, sexy woman. The ratings were through the roof. Everybody wanted to see Fawn Hall. So I'm saying the point is, can you imagine a Hope Hicks coming up? People are going to tune in for that. 

Harry Litman [00:37:14] I mean look it's absolutely true what Congress has failed to do because the White House has taken such an aggressive posture vis a vis, subpoenas is have, that's what they've tried again and again to do. What's it been, 16 weeks? An actual live witness. On the other hand, some of these court cases are going to play out, if they actually aren't, you know, have the time to spend you know their subpeonas are lawful. 

Rob Reiner [00:37:40] How long would it take, even in an expedited manner at this point they have this lawsuit now trying to compel McGahn to testify, how long will that take?

Harry Litman [00:37:50] My take on this is, I think that the real important point would be at the D.C. Circuit level. But I think it would be three or four months. That was one of the frustrating things about, you know Mueller's decision not to go... 

Rob Reiner [00:38:04] Three or four months that means you're well into campaign season. You know, by the way, it's the way it's like a contractor. You double it and it takes... [laughter] Well, more than three or four months. Right. Right. [crosstalk]

Melinda Haag [00:38:17] And all these are ongoing matters. The HOMs that were redacted from the report. I mean we don't know when those are going to hit. We don't know if the U.S. Attorneys who were appointed by Trump... 

Martha Boersch [00:38:27] Well Roger Stone's, isn't his trial scheduled for November, right?

Melinda Haag [00:38:30] Does it only relate to cases that are already public? Are there, I think there are some cases that are not yet public? So if those are ripe, question whether the Trump appointed U.S. Attorneys will actually seek an indictment, or whether they'll take the position that we're too close to the election, and we can't do it.

Martha Boersch [00:38:44] Well one of one of them has to be of Julian Assange. I would guess. And the whole WikiLeaks thing. And I would think anybody... 

Rob Reiner [00:38:49] And has he been extradited? 

Martha Boersch [00:38:51] Not yet. And that'll drag out. 

Melinda Haag [00:38:54] But didn't they say there's like a dozen cases?

Harry Litman [00:38:56] But I think, I do want to contrast this with Watergate again, and Rob, I know you have a point, but I mean Mueller, Mueller, did not want to testify. He showed up because he got a lawful subpoena. If he were acting like the White House, he would simply have taken it to litigation and stalled for six months. In Watergate, Butterfield, Dean, everyone, they showed up. So one of the novel and successful gaulingly, approaches of this White House is to fight on meritless grounds, knowing they buy time. And time is on their side because we're in the middle of... 

Rob Reiner [00:39:29] And that's really sad. 

Harry Litman [00:39:29] It's a realy is. It's really those kind of obstruction in itself. 

Rob Reiner [00:39:33] Well it is. I mean that was one of the articles, that was the third article of impeachment for Nixon was the obstruction that they you know that that the White House had with the tapes. You know. But it's, ugh god. I mean, I want to ask you a question: Let's say for the sake of argument Mueller decided early on, that because Trump wasn't going to testify, you know, in person with him, that he would subpoena him. This is like a year ago or you know nine months, it was, he said took like a year. If he had done that. 

Harry Litman [00:40:04] Yeah, a year of diddling around with Giuliani. 

Rob Reiner [00:40:06] How long would that have taken before a court would have adjudicated that? 

Harry Litman [00:40:11] I've thought about this and I feel strongly about it. I think that's a four month thing. I think he would have won, as he said... 

Melinda Haag [00:40:17] He should have done it earlier. 

Harry Litman [00:40:18] And he let himself get diddled around by, the you know, that he should've gone for three weeks and said, "See you later here's a subpeona." 

Martha Boersch [00:40:24] I think they could have dragged it out longer than that, don't you think? They go the district court, then the court of appeals, then the the Supreme Court. 

Harry Litman [00:40:28] It's not a strong claim. 

Martha Boersch [00:40:30] I know but still, just the way those processes work. I just can't see it getting done in three months. 

Harry Litman [00:40:34] All right. Six. Well I mean you know Nixon itself the US v Nixon was a, was just a few months. And I think Roberts, with the Supreme Court would have been sensitive to doing it quickly, again it's that D.C. Circuit level. But I think so. And the main thing is you put Clinton v. Jones together with US v Nixon, you win. As Mueller himself concluded that's gonna be the first thing that historians sort of look at and criticize about the Mueller probe. 

Rob Reiner [00:41:01] If he had sat in person, let's say, four or five months ago. 

Harry Litman [00:41:04] Could have blown it wide open. 

Rob Reiner [00:41:06] This thing would be would be long gone. 

Melinda Haag [00:41:09] He wouldn't have survived an interview. No, I agree. 

Rob Reiner [00:41:10] No no no. Yeah. 

Harry Litman [00:41:12] His presidency might be it, right? 

Melinda Haag [00:41:13] Right. 

Harry Litman [00:41:14] And that's that's pretty...

Rob Reiner [00:41:15] And they made Clinton do it in public. I mean he was on camera doing it. 

Melinda Haag [00:41:19] At the deposition. 

Rob Reiner [00:41:20] Can you imagine, Trump, I've seen some depositions with Trump. Have you seen any? 

Harry Litman [00:41:23] Yes. 

Rob Reiner [00:41:24] It's pathetic. 

Martha Boersch [00:41:26] Yeah but don't you think his base would still be with him all the way? 

Harry Litman [00:41:28] But what about that? What a question. 

Rob Reiner [00:41:30] That's fine. That's fine. But it's still..

Harry Litman [00:41:32] So when, would he still, and let's say he perjures himself, [crosstalk] does Mueller say nothing? I know what about that you know self so there have been so many things that have happened, you know, starting back with the Access Hollywood, where I and many others are like, "Well now he's done well now he's done." How many have there been?

Rob Reiner [00:41:48] It wouldn't have hurt his base but it certainly would have moved us to impeachment. 

Melinda Haag [00:41:55] Yeah. One thing he's doing right now is very quietly but vociferously protecting his tax returns. He's got a legal team that is all over the place trying to protect the, from, to protect against the disclosure of his tax returns. 

Rob Reiner [00:42:10] And that was something that Mueller, when they asked him, took a pass on that one. 

Harry Litman [00:42:15] Mueller must have them. 

Melinda Haag [00:42:16] I find it hard to believe that he doesn't have them. I think Mueller has them.

Harry Litman [00:42:18] First step, right? He must have gotten them. 

Melinda Haag [00:42:20] Yes. So...

Rob Reiner [00:42:21] But he didn't, he didn't explore financial doings. He didn't look into any... 

Melinda Haag [00:42:26] Well that wasn't part of his charge wasn't it. [crosstalk]

Harry Litman [00:42:29] ...wasn't part of his charge. 

Melinda Haag [00:42:33] So is it possible that that's something that's been farmed out? 

Rob Reiner [00:42:35] Well it has to be. Don't you think? 

Melinda Haag [00:42:37] If he saw something in the tax returns? 

Rob Reiner [00:42:39] If it's a counterintelligence investigation then you have to look into, where is the compramant? 

Harry Litman [00:42:45] That's a great point. How did they how did they view the tax returns. But of course if it's that again we may never see it. He may, we may never see it. Let me ask a sort of broad question. Look, let's say it's true. That you know this is both a political and legal question. But you know, Pelosi's viewpoint is or somebody, you know it could be summarized: It's a fool's errand. We're going to... It really could give him the election, it would serve his purposes. Let's say that the political calculus is, you know, at least in his favor of doing impeachment. Nevertheless, how do we factor in these sort of broader, moral, democratic issues that seem so front and center in a way they haven't been since Nixon or before it. Should, in some broad, you know, moral way the Congress be pushing impeachment, even if they think it's politically unsound? And now that's a sort of two parter, and I guess, is it political unsound?

Martha Boersch [00:43:50] Well that's a that's a that's a question of moral judgment, right? [crosstalk]. 

Rob Reiner [00:43:53] We don't know. We don't know the politics of this. 

Harry Litman [00:43:55] Yeah well I guess let's start there. Do you, where are you on, do you..

Rob Reiner [00:43:58] What we don't know. I mean, right now, if you take a poll you say, "Well the country is generally against impeachment." But if you start the process you don't know, if those polls aren't going to shift. 

Harry Litman [00:44:09] That's true. 

Rob Reiner [00:44:09] But to me it, even though impeachment itself is a political process, whether or not we should impeach that should not be political calculation. Because if we don't do it then what's, then what's the point of having that in the Constitution if you have a president that is committed on a prima fascia, in my opinion, as many crimes as this guy has and you don't go down that road, it just opens the door for any other president to say, "I can do whatever I want." I'm never going to... 

Harry Litman [00:44:41] I mean, in a way it sort of takes us a giant step toward you know Greece or Turkey, or something. 

Harry Litman [00:44:47] But so, but so... 

Martha Boersch [00:44:48] Venezuela. 

Harry Litman [00:44:49] Really fault the Dems for saying, "Well maybe it does but we're here to be re-elected." 

Martha Boersch [00:44:53]  I think I agree that it's it's it's that they have a constitutional duty. If they, if there's really been crimes committed by the president I think they have a constitutional duty to start that process. 

Harry Litman [00:45:02] Even if it's politically counterproductive? 

Martha Boersch [00:45:04] Even if it's politically counterproductive. I, because, it's not actually a political, it's not a political decision in that sense. It's it's a much bigger political decision in an institutional kind of sense. 

Harry Litman [00:45:16] Melinda. Where are you on this? 

Melinda Haag [00:45:16]  I agree that when we don't, we don't know which way it's going to go. It could, we could start down this path and have hearings and McGann could testify and it could lead to the end of the presidency or it could backfire completely. And Trump is re-elected. So it's just so hard to know...

Martha Boersch [00:45:30] It could, from that sort of political perspective. 

Melinda Haag [00:45:33] ...which is the right path. I mean I do like to think that we, I would hate to see us get to the point where we are now on the wrong side of history. Where we... 

Harry Litman [00:45:40] Well. That's that's sort of the question I'm asking. What's this going like, if we do nothing. I don't want to be glib about this. You know, there, there, there's a political process and a political remedy but really if we do nothing, what does this look like in five years? What have we countenanced and you know, and what kind of damage are we not able to reverse if we do nothing?

Melinda Haag [00:45:59] Right. Especially if we find out the worst. You know. He really is being blackmailed by Putin. He really is directly, taking direction from Putin. 

Rob Reiner [00:46:06] Yeah they have. I mean they have compramant on him. They know he lied to the American public about wanting to build a Trump Tower in Moscow during the campaign. They knew that, they knew all that here. Here's the thing about all this, you have to preserve the democracy at some point. That's what we're looking at. And we don't know where the polls are going to be we don't know if there it's going to go one way or the other. What you can do is you open an impeachment  inquiry, you start getting witnesses, you go down that road. If it becomes clear to everybody that this is the you know we have to drop these articles. You do it. If you don't, you just fold the tent. I mean, it doesn't, you don't have to draw up articles. And then once you draw up articles you don't have to vote on them. If it takes you all the way to let's say right before the convention, you could say look we're right in the middle of a, of a, of you know a heated political campaign and we're not going to make the President have to stand trial in the Senate during this we'll hold it off and if he, uh... Meanwhile the the public has seen a lot of of who this guy is. That's what I would I do. 

Harry Litman [00:47:13] And if the alternative is as it is for the Republicans, kind of pretending nothing's happened, nothing's happened, it just it just does seem like there's this graver duty. But can you actually ask them if they, if this is their true calculus, that you know drive over a cliff in this way? 

Rob Reiner [00:47:30] It's unfortunate that that's the way people think of it. Because there's something bigger than winning or losing an election. It's whether or not you preserve democracy... 

Martha Boersch [00:47:41] And integrity of the system. 

Melinda Haag [00:47:42] Yeah I mean it's... 

Rob Reiner [00:47:43] But think think about this for a second. What if you don't go through the impeachment process, and then you lose anyway? Then you've really done something horrible. You haven't preserved... 

Martha Boersch [00:47:55] And the way it's looking that they're gonna lose anyway. 

Rob Reiner [00:47:57] They might, they might lose. Then there's no guarantee that by not doing an impeachment inquiry, you're going to, you're going to win. There's no guarantee of that. 

Harry Litman [00:48:09] I think at the core is Martha's point is there... Do they, they swore an oath to the Constitution. Is there a constitutional duty that they just have? You know this... It did happen in Watergate, not immediately. It wasn't until the evidence began to accumulate that, that the people saw it and in a broader civic terms. 

Melinda Haag [00:48:28] Right, well there is a tipping point and we certainly haven't gotten there yet. 

Rob Reiner [00:48:31] That's for sure. 

Harry Litman [00:48:32] Yeah there's an end I think. It's time for our final segment. "Five Words Or Fewer." Where we take a question from a listener and each of our guests answers in five words or fewer. Our question today comes from Lois Haggard who asks: "What will it take to get Republicans onboard for a Trump impeachment and removal?" Five words or fewer. Melinda?

Melinda Haag [00:48:58] Pee-pee tapes are leaked. [laughter]. 

Martha Boersch [00:49:03] I really don't know. 

Rob Reiner [00:49:05] I don't think anything. 

Harry Litman [00:49:06] I don't think anything. And on that cheery note we want to thank Martha and Melinda but especially Rob for your contributions all through these years. But for today in particular and for your hospitality. This has been a really special episode and a very important juncture in that in the Trump investigations. 

Harry Litman [00:49:31] Thank you very much to Martha, Melinda, and especially Rob. And thank you very much listeners for tuning in to Talking Feds. If you like what you've heard. Please subscribe to us on Apple Podcasts or wherever you get your podcasts and please take a moment to rate and review this podcast and tell a friend about us. 

Harry Litman [00:49:50] You can follow us on Twitter, @TalkingFedsPod to find out about future episodes and other Feds related content. And you can also check us out on the web at Talking-Feds-dot-com. Submit your questions to Questions-at-Talking-Feds-dot-com, whether it's for "Five Words Or Less," 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 [00:50:27] Talking Feds is produced by Jennie Josephson, Dave Moldovan, Anthony Lemos and Rebecca Lopatin. This episode was recorded by Bill Lancz. David Lieberman is our contributing writer. Production assistance by Sarah Philipoom. Special thanks to Tricia and Rocco at Castle Rock Entertainment who helped make this episode a reality. As always 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. 

Congressman Nadler [00:51:10] Before we conclude, I ask everyone to please remain seated and quiet while the witness exits the room.