TF33: The Whistle Is Blowing (Rush Transcript)

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

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Harry Litman [00:00:20] I'm a former United States Attorney and Deputy Assistant Attorney General and a current Washington Post columnist. I'm joined today by four of your favorite Feds, charter Feds, all well-known to anyone who's been near a television or this podcast in the last couple of years. 

Harry Litman [00:00:39] First Paul Fishman of Arnold and Porter former U.S. Attorney for New Jersey. Joyce Vance of the University of Alabama and MSNBC contributor, also a former United States Attorney in Alabama. Matthew Miller, a partner at Vianovo and the former director of the Office of Public Affairs at DOJ. And Frank Figliuzzi, the former FBI Assistant Director and an NBC News national security contributor. 

Harry Litman [00:01:14] How's that for an all star squad to discuss the news of the week which was dominated by the story of the whistle blower complaint in the national intelligence community that was forwarded to the Inspector General of intelligence who determined it to present a matter of urgent concern and therefore under the statutory scheme to prepare to forward it to the chair of the House Intelligence Committee. And at that point all hell broke loose and another impasse between Congress and the White House took form and seemed to be intractable. Details emerged that the call concerned a promise that the whistleblower found very troubling and that we now know appears to have involved the president, President Trump's, efforts to get the Ukraine government to provide dirt on Joseph Biden's son Hunter who worked at the Ukrainian gas company for a time. 

Harry Litman [00:02:27] Will develop this as we go, but let's dive in. Starting with, I think it'd be useful to get a sort of feel for this whistleblower and the program. It's a special program for the national security community. Unlike other whistleblower programs, and I'm a whistleblower lawyer, it's not a matter of of a financial reward or anything like that. It just gives a cover for someone in the national intelligence community. I wonder Frank given your having come from there if you have a sense of it and if you have any sense of who this anonymous person is generically who has started this whole latest controversy between the White House and the Hill. 

Frank Figliuzzi [00:03:11] Well I think first there's it's important to say to just tell our listeners why there is an intelligence whistleblower provision and why it seems to have some unique aspects versus some other whistleblower provisions. It's the nature of intelligence to come right up to that line of being invasive in terms of privacy. Doing things that are extremely cloaked in secrecy often highly classified actions. And so that's ripe for abuse. And so the the whistleblower provisions for the intelligence community were designed to recognize that there's got to be an outlet for career professionals or anyone to come forward and say I think I think we're getting into illegality. I think we're getting into exploitation and abuse. And the one aspect I think that strikes me as kind of being unique is that it ties the hands of others when this whistleblower comes forward. It says to the Inspector General, "If you find this credible and urgent you've got no choice but to come and report it to the intelligence committees in Congress." 

Harry Litman [00:04:24] Why do we need in the first place? Why can't the professional just come forward tell his bosses and hope you know and assume everyone will do the right things within the national intelligence community?

Frank Figliuzzi [00:04:35] Well I think we've become painfully aware certainly during this presidential administration that assuming that people will do the right thing it doesn't work. And there's a concept that agencies should be able to police themselves. But yet there should be some independent body attached to that agency who understands the work of the agency, the people of the agency and can independently investigate the allegation. That's why there's this provision where you've got to find it. Someone's got to find it credible and urgent and so that's why we want that kind of process in place. 

Harry Litman [00:05:05] Well so what. AIG why not the DNI. Would the CIA have some sort of independence here?

Frank Figliuzzi [00:05:11] Well that's the way Inspectors General are set up, typically to have that degree of independence. What's broken here and what we're seeing not work here is that the DNI has stepped in and asserted some kind of authority that quite frankly he doesn't really have. And yet he's gone to the Department of Justice to try and get them to weigh in. They've weighed in. And again that's not part of the whistleblower provision here. So someday when we're all looking back and we're we're taking notes hopefully now on what needs to be corrected in the future in the next administration. This is one of them. We've got it we've got to even strengthen more the independence of Inspectors General. 

Harry Litman [00:05:48] Although it is interesting to know what you would possibly do here. Does everyone agree? The statute just says it couldn't be clear, the IG just sends it to the Hill, the Intelligence Committee. There's never been a problem. This is the first problem and it's sort of as clear as clear can be. Or is there some ambiguity that the administration is exploiting? 

Paul Fishman [00:06:10] I actually think it's different than that a little bit. Maybe maybe I'm reading it differently than you guys are. The intelligence community is not a place where I've lived. But my reading of the statute is that the Inspector, once the Inspector General gets that complaint, that the person is not supposed to go directly to Congress. It's got to go to the IG and the IG if that satisfies the two criteria that Frank just outlined of credibility and urgency, the IG then has to report the claim to the DNI, the Director of National Intelligence, who of course is a political appointee of the president. The DNI then has seven days to then himself report it to the Hill. That's not a discretionary call. The statute says that the DNI supposed to report it. 

Harry Litman [00:06:56] "Shall", right?  Shall report it. 

Joyce Vance [00:06:58] I agree with Paul's call on that. But I think then the question becomes how do you enforce it? What do you do if the DNI won't go along with it. Because they take this position that you can't review these decisions in court. You know typically you think if it's a purely ministerial duty, file a petition for mandamus and have a court order the DNI to do what the law clearly says he must do. But the government apparently will take the position that this is an unreviewable decision which just seems ludicrous to me. 

Paul Fishman [00:07:29] Well what's also interesting Joyce -- The question is, "Did the DNI decide not to do this on his own. Did he ask Bill Barr for advice? Did he tell the White House? Did the White House say he can't do it?" I mean presumably the president can often does tell people not to do stuff as we know in this administration that they're supposed to do. And so one of the interesting questions here is not just that he refused to follow the law didn't do it but that other people weighed in who presumably have no role. 

Harry Litman [00:08:01] Yeah that is interesting. Any speculation Matt about how the DOJ got into the act here in the first place?

Matthew Miller [00:08:07] Either the DNI went directly to DOJ or they went to the White House and DOJ was was brought into it that way. Either way I think you have to blame the DNI there for not just doing what the statute says and consulting with the White House when in fact we now know the subject of the complaint was the White House itself. I think Harry to your question I think there are two problems that this reveals. One is, "What do you do when an administration is just lawless and doesn't follow the the plain language of the law which they're doing here?" But then there's a second one that the White House has sort of alluded to or that the DNI has alluded to in his letters that there are privileges that the administration holds that are constitutional that are beyond the statute. So even if, even if the DNI said that he was going to comply with the statute you have this this thing that frankly is a bipartisan problem where you've had White Houses over the years asserting privileges where they can at times sort of ignore the law that they think impinges on the president's constitutional authorities. And that is a problem that, you know, we have all served in administrations that have helped kind of erect that imperial presidency and that has always rested on the idea that the president would somehow would be acting in good faith and what I think we're seeing is when we have a president -- we see it in this we see all kinds other other things -- when you have a president that acts it in bad faith that imperial presidency is incredibly dangerous and incredibly hard to check. 

Harry Litman [00:09:28] Yeah. Well let's try to parse it a little more carefully because it is true that administrations past, Democrat and Republican, have at least reserved to the president the final authority to determine, these are the words, what is classified information and what isn't. And you can see that. But what is the possible connection of that prerogative, assuming it's preserved and the refusal even to forward the complaint to Schiff here. You know, I don't see how the forwarding of the complaint itself threatens the ability of the president to determine what's classified. Or is the argument that somehow Schiff seeing pierces some privilege and that is not mentioned in the statute? 

Matthew Miller [00:10:13] That's exactly the argument and that's what I think President Clinton said this when he signed the act. And it's come up and, you know, other administrations have asserted this, not this directly, but that the president gets to decide what's classified and he gets to decide who gets to see that classified information. So the president despite what the statute says could always say, "My conversations with a foreign leader are classified." And there's also a reference to something that --  Bob Litt has referred to this that there is some foreign communications privilege when the president is talking to the leader of a foreign country. That's never been litigated or established.. 

Harry Litman [00:10:45] Well it's never been litigated, although I'm interested in Paul what you might might think about this. It hasn't been litigated but I think many people would agree that when a president is talking especially one on one to a foreign leader there are, you know, we're at the summit of kind of presidential interests and power and that's what we are talking about here. So let's turn it around. What's wrong with the administration's position here? That's what happened and I'm sorry a leader to leader call. I don't care what the law says you can't pierce it. Why are we all calling that lawless? 

Paul Fishman [00:11:22] Well so,  look there are -- I'm thinking about this from two different perspectives. One is from the from the language of the statute itself. The Intelligence Community Whistleblower Protection Act of 1998. And when it talks about defining a matter of urgent concern, which we were just talking about, it defines that as firs: A serious or flagrant problem abuse violation of law or executive order. And then it goes on to other stuff it doesn't really apply here. The question that I think is on the table. And I think the White House's position which strikes me as a bridge too far is that the president of the United States can't actually commit a serious or flagrant violation of the law. Right? Or if the Inspector General says, "I think it's that." That the DNI could say it's not an urgent problem or the president can say it's not an urgent problem. And here's sort of the very interesting question, sort of where it dovetails I think to an incredibly large extent with the way that the administration, the way the president and the way Bill Barr characterized the question whether the president can be prosecuted while in office. Right? In some sense and whether the president can be questioned about his use of the pardon power. Right? The issue is are there things that the president of the United States is simply not allowed to do. Right? So if any other public official said I'm going to withhold 250 million dollars in military aid unless you investigate the son of a presidential candidate of another party, then that would be an extortion. Right? If anybody else said, "If you if you give me a campaign contribution I will pardon you." That might be a bribe. If anybody else said, "Please go stop this investigation to protect me." That might be obstruction of justice. Right? But in the world in which this White House is operating and Rudy Giuliani basically said it. If the president of the United States decides to withhold military aid so that in exchange for some pressure on the Ukrainian president to investigate something that would help America then that's not a violation of law. And that's really how this all comes out. Right? They have a view that the president is essentially unfettered in some way at least until he leaves office. But that it's not actually a crime that can be dealt with at the time.

Harry Litman [00:13:55] So Joyce, what's your take?  Is the administration position here aggressive or lawless. 

Joyce Vance [00:14:02] So I have great respect for Paul Fishman I'm going to publicly earn that.  One of the reasons I have respect for Paul is that when issues like this come up that are difficult he doesn't have a knee jerk reaction. He doesn't have a strong political lean. He tends to look at these issues and analyze them based on the facts and the law which I think is very very important. I try to emulate Paul in many ways but I have a developing concern here that this administration is so lawless that when we are scrupulous about playing by the rules and thinking about, say, the limits of executive power and how that was pushed in the Obama administration, that we're just playing into their hands because they are completely lawless. And here's my example, yesterday in the context of the ongoing litigation over whether Cy Vance the D.A. in Manhattan can subpoena the president's tax records the president's lawyers took the position not that he president can't be prosecuted but that he can' even be investigated. They just flat out said, "You can't investigate the president while he is the president." So what I see happening is as we play by the rules and think through the normal limits of executive power. Everything that we do bending over backwards to be fair they take and they start running for a whole new touchdown with that ball. I'm not sure where that leaves us in this particular case but I think what it dictates is that although we do have to be fair, do have to think about the implications of the law as we analyze this. We should not be afraid to contextualize it in terms of this president's behavior and his contempt for the law. We need to find a path forward that preserves the country so that these rules that we all care about so much will continue to have meaning. 

Harry Litman [00:15:54] I mean that's a great point because you're right it's almost as though they're arguing not even for you know an imperial presidency but a divine one. But the problem with the Trump administration is always do you think about it in terms of the you know singular and precedent breaking outrage or do you have to think about presidents to come. Well you know what's your thought, Frank? Are we talking aggressive arguments or really lawless ones in their resistance to even turning over that complaint? 

Frank Figliuzzi [00:16:25] So I want to just two things executive privilege and then the classification issue. Let's assume that some of that some or all of this reporting is correct and and that indeed the president had multiple conversations allegedly with the president of Ukraine and said or implied, "You get the military aid when you investigate my opponent Biden and or his son." I think the average American on the street would say that executive privilege should not apply to an unlawful act. And I think, clearly, one of the most popular statutes used federally for public corruption Title 18 USC 201 B talks about a public official directly or indirectly demanding seeking receiving accepting or agreeing to receive anything of value. Now that would be a Ukrainian investigation of Biden in return for his official act and that could be granting Ukraine half a billion dollars in military aid. That is very very arguably a federal violation. I don't think executive privilege applies to that. So when when the DNI or the AG says one of the reasons we don't want this going to the Hill is because it contains executive privileged communications. I think that's nonsense. Now there's an interesting argument on the classified side because as has already been said the president can decide not only what's classified but who gets to see that classified. You can actually even in my prior position in the FBI I could actually delineate, name the people, only those people who can see this particular document. But I think we'd agree generally that the president talking to a foreign leader about what he had for dinner probably isn't classified now as we get closer to a discussion of quid pro quo when you get military aid. Now we have an interesting classification argument but I would say that if you give it to the House or Senate Intelligence Committee they have all the classifications in the world. You can easily get around that classification. 

Harry Litman [00:18:26] Yeah. No. So I think that's the core. I mean I yield to no Fed in respect of Paul Fishman but I think I do join Judge Vance's majority opinion here and for that very reason granting--. 

Paul Fishman [00:18:39] Can I actually -- maybe I lost this in the discussion and I've been friends with Joyce for a decade. And she has that sweet-voice way of sticking the shivv in your shoulder blade. [LAUGHTER} I actually thought we were in the same place. I didn't mean to suggest that I thought what the White House was saying was okay.  What I meant to say was that they're taking their argument to a totally illogical extreme which is the president can do anything he wants. 

Harry Litman [00:19:09] Ah, so please join me. Because it's not only that. So I think we would all agree there. But I also think that you know it would be one thing if they were generally deciding what's classified or not. But as Frank says, somebody has to put as a governmental solution here, somebody has to put eyes on this who's not in the line of presidential supervision and that it be the chair. You know one of the Gang of Eight of the Intelligence Committee that's what they do. They have all the clearances and the like. So I think the flaw in the pro presidential arguments here is just that they don't get you to a place where you can't even follow the legal scheme and give it to the, you know, to Schiff to look at. How do we see this or predict it playing out? What is going to actually happen here and now that the sides have kind of squared off and seem irreconcilable. 

Matthew Miller [00:20:05] Sure. I don't think the White House is ever going to allow the whistleblower complaint to be sent to the Hill. But I don't think it matters because every day that we get farther away from from this first being reported we're finding out new details. We now know that the president in that conversation with the president of Ukraine asked eight times for him to open investigation into Joe Biden's son. And I suspect before the next few days we'll know everything that is in that complaint. 

Harry Litman [00:20:31] And how do you see that happening by the way? As somebody who's kind of leaking who knows it or the whistleblower is. Why is this all coming out and from whom.?

Matthew Miller [00:20:39] Yeah I don't know if it's the whistleblower but they're obviously put people inside the administration that know about it and what happens good reporters that have a little nugget will go to the White House and dig a little bit more out and get stuff that's you know even from defenders of the president that doesn't help the president because they're good solid reporters. And I think the question then becomes, you know, a little bit of this legal debate. Well was it OK for the president to do this? Was it legal? But really it's a political debate. We're back to the question we've been in since the Mueller report ended which when you have a president that behaves this way what's the possible remedy? And look, I have my own personal opinions about about that but I'm not sure they're shared by Nancy Pelosi and I think the question is does a president in the middle of his re-election campaign with still 14 months ago who's shown he will you know use the power of the federal government to go after his political opponents in every conceivable way, is that enough to get Democrats in the House to try to impeach him? And we don't know the answer to that question yet. 

Harry Litman [00:21:36] Well I actually have a somewhat contrary view here, not based on anything in particular, but I see this as playing out in some kind of accommodation. I think the White House is getting clobbered. It gets worse every day as Matt says it's all coming out anyway. And Schiff would be duty bound to not publicize it. So I actually think that in the next week or so there'll be some kind of accommodation where Schiff gets the substance of things but not the physical complaint. And, you know, they can go forward. Now that's, you know, completely raw speculation of course but it just seems to me that this really arch position that the White House has taken in other matters serves them poorly here where they sort of get their worst coming out anyway and wind up looking unreasonable. They'd be my best guess. 

Harry Litman [00:22:37] It's time now to take a moment to explain some of the terms and relationships that you've heard so much about in this podcast and on cable TV over the last couple years in a segment that we call sidebar. Today, Grammy nominated soul and blues singer Bettye LaVette will tell us the definition of conspiracy under federal law. 

Harry Litman [00:23:02] Bettye LaVette career began at age 16 in Detroit Michigan the Motor City and her first single "My Man. He's a Loving Man" was released by Atlantic Records but did not achieve lasting recognition for her incredible voice until she released her 2005 album, "I've Got My Own Hell to Raise." Betty received a Pioneer Award from the Rhythm and Blues Foundation in 2006 and sang, as many of you saw, at President Obama's inaugural celebration. Her latest album, "Things Have Changed," is available now. 

Bettye LaVette [00:23:45] What s conspiracy under federal law? Federal law and many states treat conspiracy to commit a crime as a separate offense from the crime itself. Under federal law, there are dozens of statutes criminalizing conspiracy. 18 U S C Section 371, called the General Conspiracy Statute forbids a conspiracy to commit any other federal crime. Other laws criminalize conspiracy to commit specific offenses such as murder, drug trafficking or civil rights violations. A conspiracy is an agreement between two or more people to commit a crime. Or achieve a legal end through improper means. The agreement can be established with evidence of express or implicit agreement. Some conspiracy laws also require proof of an overt act. Or a concrete step to achieve the goals of the conspiracy. This can include simple things like buying supplies but the conspiracy is a crime even if its goals are not achieved. Conspiracy laws rest on the belief that criminal partnerships represent a different and greater threat than the underlying offenses. The Supreme Court has explained that groups of criminals are more likely to be successful and commit additional crimes and less likely to abandon plans that are lone criminals. Conspiracy law provides prosecutors with a powerful set of tools against a defendant. Section 37 1 conspiracies are punishable by up to five years in prison.  Other conspiracy statutes carry the same penalties as the substantive offenses. A conspirator is also responsible for the foreseeable actions and consequences of the conspiracy. Even if he or she did not specifically agree or know about them. At trial the government may introduce the statements of co-conspirators even if those statements were otherwise violate the rule against hearsay. A conspiracy continues until its objective is achieved or the co-conspirators stop committing overt acts to father it. An individual who has joined the conspiracy is responsible for its actions until he or she clearly withdrawas from the conspiracy by telling the co-conspirators or going to the police. For Talking Feds, my name is Bettye LaVette. 

Harry Litman [00:26:40] Thanks very much to Bettye LaVette. If you have the chance to see Bettye in concert, it is beyond worth it. You can see where her upcoming performances will be at Bettye LaVette dot com. Moving to another extraordinarily rich topic that puts on raw display this sort of complete opposition and antagonism between two branches of government, the executive and Congress. And that was this week's testimony by Trump partisan and perhaps future Senate candidate Corey Lewandowski. Well, not future Senate candidate. He used one of his recesses to actually launch his campaign, so we know he's going to be running for Senator in New Hampshire and very much as a sort of, you know, in the image of Donald Trump. So it was quite a hearing. Let's start with just, you know, between the Fox News MSNBC prisms you saw complete different views about just whether objectively this guy was an effective witness or an ineffective witness. Matt, because you spent a lot of time with Congress, was he an effective witness for what he wanted to achieve. 

Matthew Miller [00:28:01] So I think you have to divide the hearing into the two sections. The time that the members are questioning him and the time that the committees outside counsel Barry Park was questioning him. And during that time the members are questioning, I think he was effective in giving up nothing and saying nothing more than what he had said in the report. Probably not effective in launching a Senate campaign because, you know, he looks evasive and looks like a liar--. 

Harry Litman [00:28:24] And not likeable, right?. He seemed like kind of a jerky guy, no? 

Matthew Miller [00:28:28] Yeah. And unlikable. The State of New Hampshire is not going to elect someone that acts like that to the United States Senate. That's a farce. But then I think that during the last 30 minutes of the hearing when Barry Burke got a hold of him, I thought he really reduced him to shreds. He got him to admit that he lied on television. And really I think I think it was a very effective display and the kind that if we saw more often in these hearings, we would probably would probably be in a different place in terms of public opinion about what this investigation has found. 

Harry Litman [00:28:58] Yeah. So Joyce, what would be your professional assessment as a prosecutor here of Burke's cross-examination? Did it in fact completely demolish him? 

Joyce Vance [00:29:09] So I thought that Barry Burke very effectively took Corey Lewandowski apart piece by piece for everyone to see. And anyone who maintained after watching that cross-examination that Lewandowski had done a good job was just posturing for the cameras. It was classic, "I will play it for my law students." I think everyone needs to see 30 minutes of  -- you know, this is this is classic right? Trump and this administration, they've been great at using procedural and tactical maneuvers to keep the truth from coming to light. What happened with Barry Burke's cross-examination was the truth actually coming to light in an unfettered way. 

Harry Litman [00:29:50] You had the crucible of cross-examination right? I mean imagine say a line of questioning like that directed towards say the president or Don McGann. Paul, you agree with the professional kudos for Burke here?

Paul Fishman [00:30:03] Well yes, but I think that does beg the larger point which is that and I think Matt got it right. If this happened all the time people would think differently about A.) How Congress conducts its investigations and B.) We'd get a lot more information. You know, I remember, I'm old enough to remember not just the Whitewater hearings where Mike Chertoff and Richard Ben-Veniste were the lead counsel for the respective parties on the Whitewater Committee and had lots of time to ask questions. We all remember Arthur Lyman. For those of us who were old enough to remember he Iran-Contra hearings I also remember George Mitchell was a former U.S. attorney when he was on that committee asking very great questions as well. Look if you want these hearings to do something other than just produce soundbites, you have to give people more than five minutes to ask questions. You can't do a real cross-examination of anybody in five minutes on complicated issues like this. If you watched how Barry set it up with tape and so forth. You need to do that. And second you need people who really know how to ask questions. We have not seen an enormous amount of that. I mean, I just remember one episode relatively recently in which AOC was actually pretty good at it, right? No legal training. But you have you have to decide that's what you want to do. 

Harry Litman [00:31:19] Matt just a quick question. Could this have been done the entire time? It's just a matter of the whether it's the Republicans or Democrats is ever in the majority wanting you know not being able to resist the five minutes of TV. Could we always have had this?

Matthew Miller [00:31:34] Yes we could have always had this and I'm told that even some of the more junior members of the committee would be fine with the 30 minutes coming at the beginning of the hearings. And it's the senior members who don't want to give up their airtime. 

Harry Litman [00:31:46] But since he's been there and after Burke kind of draws blood, we're having all this talk about a possible contempt action toward him. What's that about? And do you see it as gaining actual purchase. 

Frank Figliuzzi [00:32:02] Yeah two separate questions. The part about contempt actually having teeth and actually getting somewhere is what I think troubles us the most, certainly troubles me the most. Because it goes, not to be melodramatic here, but it really goes to the heart of whether we're going to still have three equal branches of government. And I would love to see Congress attempt to hit people with contempt and actually do something about it but we have to understand that contempt really Contempt of Congress is going to end up giving referred to DOJ. It's going to potentially end up in the Office of Legal Counsel. It's going to go to the courts and it's just stacked against Congress right now. That's where we are. But for people who say, "Hey, this isn't what contempt is about. Not fully answering questions, being a pain in the ass. That's not contempt. But I go back, I did a little research on this and there's an 1821 Supreme Court case called Anderson v. Dunn and it gets to this question, "What is contempt?"

Matthew Miller [00:33:06] Frank, whoah! 

Paul Fishman [00:33:06] Turns out Frank is older than we thought. 

Harry Litman [00:33:06] Still good law. Were they wearing wigs iat the time? 

Frank Figliuzzi [00:33:10] They might have been. It said that -- It addresses Congress's power to hold someone in contempt, right? And it says it's essential that Congress was quote "not exposed to every indignity and interruption that rudeness, caprice, or even conspiracy may mediate against it."

Harry Litman [00:33:28] Nice. 

Frank Figliuzzi [00:33:29] Bottom line. So for those who say, you know, a guy thumbing his nose during a session is not contemp. Um, apparently. Supreme Court says it could be. 

Paul Fishman [00:33:37] You know, once again, the White House pushing the envelope of who can testify about what. It's one thing for the White House under some umbrella of executive privilege to say that Hope Hicks, who worked for the president, can't testify about certain conversations she had with the president. There are lots of us who disagree with the extent to which that formulation of executive privilege is correct but at least there's an argument that when the president is talking to his senior advisers that there is some greater protection that it might be for other people. But Corey Lewandowski has never worked for the United States government, right? He's,  he was a private citizen at the time that he was carrying these messages from the president to the Attorney General of the United States to say, basically, take the investigation back from Bob Mueller. You need to unrecuse yourself. You need to shut down the obstruction parts. You need to only investigate like potential future interference with the Russians. Lewandowski ultimately according to the evidence developed by Mueller didn't do it. And in fact tried to get Rick Dearborn to do instead. But this is a private citizen. There is no argument, no argument that that conversation is in any way subject to executive privilege and there's also no basis for the president of the United Sates to tell Dearborn and Porter the other two folks who were supposed to be at that hearing that they can't show up. The president doesn't have the power to tell people who don't work for him anymore. . 

Harry Litman [00:35:12]  I couldn't agree more. I think, you know, they assert it and they buy time. So we've got Dearborn, Porter, Lewandowski all these in a very far fetched attempts to defend. But that dragged things into the courts. Given that, Matt, what is the strategy for Nadler and the committee. Who do they call next? They got information from Lewandowsk,i but he was obviously a hostile witness. If you had to think about their strategy for the next one , two, three witnesses, the next month, what would be your best guess? 

Matthew Miller [00:35:47] You know they don't have a lot of other great witnesses because the ones they really care about for the obstruction piece the White House is is keeping them from from getting by asserting executive privilege. You know they could go to say Chris Christie. They could take a run at Rick Gates to talk about the other half of the Mueller Report, the collusion piece. But until they get a court ruling on the McGahn subpoena I think it's tough for them to go forward because they don't have witnesses to do these hearings. And so they have to -- you know they waited three months to go to court but now that they're in court they have to try to get a ruling on that question as quickly as they can. 

Harry Litman [00:36:19] And can they afford to just cool their heels while that's happening? 

Matthew Miller [00:36:22] Let me let me say one thing. Fortunately the president keeps adding new things to investigate so they may not have to tickle their heels. 

Harry Litman [00:36:30] What about Michael Cohen, Joyce? Any thoughts there?  Might we see him? 

Joyce Vance [00:36:33] Yeah. So let me first say that I agree with Matt's assessment and I think a lot of this comes down to what ruling the committee gets out of the court when it comes to Don McGahn. It's a frustratingly slow process when the clock is ticking really quickly. So the hope would be that they are ready to jump as soon as that resolves. You know. As far as bringing Michael Cohen back perhaps to talk specifically about obstruction, we've already heard a lot from him. He hasn't really caught the public's attention but something that the committee is it looks like they're not going to do that I wish that they would reconsider is whether or not you put Stormy Daniels and maybe Karen McDougal -- the two women who were supposedly paid off using Michael Cohen services and whether they have any light to shed on this. Because the allegation is that Cohen was paid for legal services when in fact that's not what he was functioning as. He was really just being a bag man, a fixer. And so I think that this is something that would have the value of both catching the public's attention and perhaps explaining more about how the obstruction work did him in a very gripping way. 

Harry Litman [00:37:44] Everyone seems to agree we really need this McGahn ruling. When do we think is the soonest we see it? Anybody? Because obviously the administration is going to try to push it as long as it can. 

Joyce Vance [00:37:57] You know we've spoken with folks in the committee who seem to expect that they'll have something by Thanksgiving. Matt and I have talked about this a little bit and we're not entirely sure if that includes any part of an appellate component or not but they seem to be bullish on their prospects. 

Harry Litman [00:38:16] No way. There's a hearing in Halloween. They get a quick ruling but obviously the administration appeals it. I mean, it seems to me, even a fast disposition gets them, buys the Republicans into next spring or summer. Anybody think it's sooner than that?

Joyce Vance [00:38:34] Well let me ask you this Harry. You know let's just say that they get a ruling in their favor. Maybe there's no stay of that decision. 

Harry Litman [00:38:43] Ah. 

Joyce Vance [00:38:43] That would seem to be very difficult for me because it wouldn't sort of prejudice the parties while the appeal was in motion. But if you don't expect a ruling on this, if you don't think that you can bring witnesses in then it seems like this whole process is really just doomed from the start and they seem to be acting like they think it's for real. 

Paul Fishman [00:39:03] Even if the House wins the lawsuit. Let's say it happened in a week or two weeks and the appeal got decided in a week or two weeks. That just gets done McGahn into the hearing room. It doesn't actually get him to give more information than Corey Lewandowski gave, right? He's still gonna be directed by the president not to answer certain questions. He still has the potential -- maybe he'll reiterate all the things he said to Bob Mueller. Maybe he can say to himself or the Whhite House will say-- hard to believe that that stuff's no longer covered by the attorney client privilege or executive privilege because he's already disclosed it, right?  But I we're not gonna get any more than we got for the Mueller report. 

Joyce Vance [00:39:47] Don't you think that would be enough, Paul? I mean, with Lewandowski, we saw him resisting every effort to read text from the Mueller Report because he didn't want that to become a viral soundbite. So that's what they're going to look for from McGahn, getting him to say in his own words. 

Paul Fishman [00:40:03] But the question is, where does that sound -- does that sound bite go viral in any other community other than those who are already sort of so against the president? Does that go viral in a way that inflames public opinion more generally? And that's where I'm a bit of a pessimist. I have to say. I think that those lines are drawn and I'm not sure that Don McGahn's testimony ultimately will help promote an impeachment effort. Nor do I think necessarily it will even matter that much to the electorate. I think things are going to be fought on other grounds than that. 

Harry Litman [00:40:38] And I actually feel kind of a pessimist on whether we get to that world because, Joyce, I think it's an excellent point. I can see a district court not granting a stay. But then I think the the court of appeals for the D.C. reaches down and does it. All right. Wow. We could talk about this for weeks and maybe we we will as it begins to play out. But but right now, it's time for our final segment Five Words Or Fewer where we take a question from a listener and each of the feds has to answer in five words or fewer. Our question today comes from Crew Freeman who asks, "Will this whistle hero person end up having to leak the info? Or maybe just walk up to Schiff's office and share? Is that legal? OK. Feds five words or fewer. Joyce?

Joyce Vance [00:41:31] Trump makes the legal illegal. 

Harry Litman [00:41:34] Matt? 

Matthew Miller [00:41:35] Probably legal but fireable. 

Harry Litman [00:41:38] Paul Fishman? 

Paul Fishman [00:41:39] The reaction turns Whistleblower Act on head. 

Harry Litman [00:41:47] Judges? OK we're going to we're going to accept it. 

Harry Litman [00:41:49] And Frank? 

Frank Figliuzzi [00:41:51] The whistle blower will regret his actions. 

Harry Litman [00:41:55] Judges are also accepting. And me?...No. And probably no accommodation. Thank you very much to Paul, Joyce, Matt and Frank. And thank you very much listeners for tuning in to Talking Feds. 

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Harry Litman [00:43:19] Thanks for tuning in. And don't worry, as long as you need answers the Feds will keep talking. Talking Feds is produced by Jennie Josephson, Dave Moldovan, Anthony Lemos and Rebecca Lopatin. David Lieberman is our contributing writer. Production assistance by Sarah Philipoom. Transcripts by Matthew Flanagan. Special thanks to Bettye LaVette. For telling us about the definition of federal conspiracy. And thanks as always to the phenomenal 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.