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Harry Litman [00:00:07] Welcome back to a special episode of Talking Feds -- a prosecutor's roundtable that brings together prominent former Department of Justice officials for a dynamic discussion of the most important legal topics of the day. And what a day. Probably one of the five biggest days of the entire probe the day when Attorney General William Barr came to the Senate Judiciary Committee in a much anticipated appearance to explain why he had decided, contrary to Special Counsel Robert Mueller, that the President the United States did not commit obstruction of justice. 


Harry Litman [00:00:52] Barr spent hours responding to aggressive questioning from Democratic senators about his decision making layered in with sweetheart valentines from the Republican members of the committee who seemed to be focused on the inception of the probe and Hillary Clinton's emails and the like. I'm Harry Litman. I'm a former United States Attorney and Deputy Assistant Attorney General and also an assistant United States attorney or line prosecutor and a Washington Post columnist. 

Harry Litman [00:01:26] I'm joined today to discuss Barr's testimony and the implications of it by three fabulously qualified Feds. 


Harry Littman [00:01:36] First we're very pleased to have Robert Raben back on talking Feds. Robert is founder and president of the Raben Group, a progressive public policy firm a former principal deputy assistant attorney general and assistant attorney general under Janet Reno. And before that a senior Hill staffer for Representative Barney Frank. Hi Robert, thanks very much for coming. 


Robert Raben [00:02:01] Thank you for having me, Harry. 


Harry Litman [00:02:03] We're thrilled also to welcome back Barbara McQuade who is a professor of law at the University of Michigan School of Law from 2010 to 2017. Professor McQuade served as the U.S. Attorney for the Eastern District of Michigan. Appointed by President Barack Obama, she was the first woman to serve in her position. Hello Barbara, thanks for coming on a busy day, when you're on TV, when you're when you're not running from studio to studio. 


Barbara McQuade [00:02:33]Hi Harry. Thanks very much for having me on. 


Harry Litman [00:02:35] And finally Matthew Miller also who's been on TV all day but has made time for this special episode of Talking Feds a partner at Vianovo, a strategic advisory firm. But before that the former director of the Office of Public Affairs for the Department of Justice. Matt, thanks very much for being here. 


Matthew Miller [00:02:56]Always happy to be here. 


Harry Litman [00:02:58] OK. So let's dive in. Here's how I see it: we didn't know before this morning what Barr was really going to say about why he had reached the conclusion he had. There were indications that it was simply this sort of "binary analysis": if Mueller didn't get to the finish line to say obstruction you had to say no. That's just how D.O.J. Does its business. That's not what I heard Barr to say principally. I heard Barr, rather to say, that he and Rosenstein and their staffs received the report on the Thursday or Friday, is this the twenty fifth, I want to say of April, and in a matter of 48 hours or so, did a top to bottom evidentiary review of the Mueller   Report, did not look at any of the underlying evidence, looked at the report, took it as true and basically were able to reach the complete opposite conclusion that Mueller clearly had reached. In other words that they did an evidentiary review obviously, a non deferential one, and came out in the opposite way. Did other people understand Barr's basic position to be the same? Barb what's your thought there?


Barbara McQuade [00:04:22]Yes, I do think that's what, the way he approached it. And I think I would have less of a problem with it if he had been a little more forthright about what he was actually doing. I think that the letter that he sent out, on that Sunday night, suggested that it was Robert Mueller who couldn't decide one way or the other that there were serious questions of fact and law that prevented him from deciding. And then he said something like: "And so that leaves it to the Attorney General to decide," is if Robert Mueller said "It's too tough for me, boss. Here, you decide." And we know now that's not all what happened. If, if William Barr said 'Thank you for your work, Robert Mueller, I'm going to read your report very carefully. And now going to reverse your call," because I think if Robert Mueller had thoughthe could make a call he would have found obstruction of justice, as to at least a handful of those episodes of obstruction that he details. But he thought it would be improper to reach a conclusion or even say that, that there was any obstruction there because it would prejudge the question for future prosecutors or for Congress. And so, if that's what William Barr is doing he should say so but instead he's obfuscated and I think that's what prompted this letter of complaint from, from Robert Mueller that he is being disingenuous about what he's doing. 


Harry Litman [00:05:40] Yeah, I mean so basically it's a -- Matt, I want to serve it up to you, but this is in, Barr in taking this step is essentially, casting, not more than casting doubt, disparaging, sort of, root and branch, the entire Mueller enterprise. Basically: it was misbegotten, he should never have done it if he couldn't reach a bottom line conclusion, the whole point was to reach a bottom line conclusion... Of course who knows where Barr got that idea, that that was the whole point. But that certainly seemed to be what he was what he was saying. 


Matthew Miller [00:06:16]Yeah, I think he kind of gave away the game in some of his comments about the origins of the investigation. There were, there were times he really questioned I think whether this investigation should have ever been launched in the first place. And I agree with, with the way you started this by saying you know his position is they got this report on March 22nd, from the Special Counsel's office, and in two days, 48 hours, they reviewed it and you know according to -- what Barr says is they weren't really quibbling with Mueller's legal interpretations as legal theories. He says he disagrees with some of them. And the deputy attorney general disagrees with some of them, but that they accepted them for the purpose of their analysis and just did an analysis on the facts. And that's his position, but I just don't buy that. I don't buy that you got this very dense 448 page report, although the obstruction section is, you know, less than that. But, but also a very dense factual recitation and you went through and examined all 10 episodes, weighed the facts, kind of considered the evidence on both sides and reached a conclusion in 48 hours? I just don't buy that. I think he had made up his mind before and I don't know whether he made up his mind because of his expansive views of executive power which would contradict what he said about accepting -- 


Harry Litman [00:07:38] Right. He said he didn't take those into account. 


Matthew Miller [00:07:40]That's right. He said he didn't take it into account but I don't believe, I don't believe his actual explanation so I don't know if it was that or if he just didn't really undertake much of an examination at all because he wanted to clear the president. But the explanation that he offers doesn't make sense. Because in my experience and look you all my experience is watching prosecutors like you and watching the A.G. deal difficult cases, there's no more difficult case than investigation into the President. And I don't remember seeing any difficult case decided this quickly by the attorney general let alone one of this importance. It just doesn't pass the smell test to me. 


Harry Litman [00:08:19] I mean I can I can take it farther, and I think Barb you would agree with me. Look you're a U.S. Attorney, which he insisted that's how Mueller is acting here, and you have a big investigation that is served up for whatever reason to the Attorney General. And let me just start there and say I have never experienced a situation where the Attorney General himself or herself simply just overrules a prosecutor with that kind of, kind of analysis. But even so one thing you certainly don't do is just take it and and leave the prosecutor out of it. There are meetings, there are back and forth, there are decisions, why did you go this way, why did you go that way? That's what would have happened in the so-called routine case that Barr is continually analogizing in this to. 


Robert Raben [00:09:06] He did say he offered Mueller the opportunity to read his four page summary. So it would be interesting to hear if if Mueller agreed with that offer, or accepted it, or rejected it. But I don't -- 


Barbara McQuade [00:09:21]Hey, it's is not a summary. It's not a summary. 


Harry Litman [00:09:24] It's embedded. It's embedded. 


Matthew Miller [00:09:26]It's not a summary even though it said I summarize the principal conclusions and results. We were, we somehow it all took that to be a summary because he said he was summarizing but we were apparently wrong. 


Harry Litman [00:09:36] And they're quibbling, they were quibbling with the terms. Like you know, Cruz, but come on everyone was saying I wrote an Op-Ed on this, release the summaries, and not just because of a Barr judiciary dynamic but because as Mueller said the, the American people were, were confused about all this. Robert, I want to raise one point Barr has continually insisted on "the regs, the regime on the regs." Well, it seems to me though he's lost sight of the big point on the regs, the regs make it very clear, if you are going to countermand or reject a basic conclusion of the Special Counsel you need: A. To inform Congress, arguably he's done that but, B. give very strong due deference to the conclusions and analysis of the special counsel. So, what didn't happen here and would happen in the routine case or under the regs was some kind of deference to Mueller who after all has worked meticulously for 22 months. Barr really did seem to assume it was just up to him, who by the way has no prosecutorial experience, to just do this all, you know, de novo, in 48 hours without the original evidence. 


Robert Raben [00:10:53] Barr has been pretty straightforward. He said it was his baby and his job was to smother it and he did it. But you know, you had to be under a rock to not see this coming. He auditioned for the job by making it very clear that the president couldn't be in legal jeopardy at least during the term of his presidency. And he delivered to the American public a, an absolute positive screed about what we were going to see before we saw it. And then we'd had a three week interim where that was the dominant court. So, you know, I know that Mr. Barr has a reputation for being an esteemed member of the establishment who has done very, very well in corporate America. But what you have witnessed is a person who put his reputation, such as it is, on the line to defend the President and act as if the President is a victim. He went far and he talked about it today in the hearing, that he expressed his concern: "How would you feel if you were wrongly investigated for two years and they came up with you know quote nothing, end quote?" So, but Mueller put him in this position, or Mueller, I should say enabled this position. He did not deliver to our knowledge a report that ends with a recommendation that says "I would indict" or "if I were in Congress I would impeach." And so you know you're handing somebody who is the Enabler in Chief, the forensics and the tools to do what enablers do. 


Matthew Miller [00:12:40]You know Robert, that that is such a good point and I don't really fault Mueller for that. I can see an argument that does fault him. But I don't fault him, I look at it as him trying to play by the rules and not just play by the rules but bend over backwards to be fair by the President: "If I can't indict the president. He can't clear clear his name. And so it's unfair to even accuse him." But you're right. When you have someone that is acting in such bad faith as I think the attorney general does and I think you believe he he's acting when you have one person that plays by the rules and another that's willing to violate them and stomp all over them. It does create this opportunity. I'm not sure what the answer is, I'm not sure we want the Special Counsel to then behave in bad faith, but it does, it does point out this kind of dichotomy we've had for a few years now, where kind of one side of the political divide just doesn't care about the norms and they benefit from disregarding them over and over again. 


Barbara McQuade [00:13:43]I've heard it said that Robert, Robert Mueller is an honorable man in a world of thugs. 


Harry Litman [00:13:48] Yeah well you know I have to count myself as having been under the rock Robert refers to although I had, you know, good company and Chuck Rosenberg and Ben Wittes and and others. But, it does, it does seem irrefutable that that Barr has taken his position or mission to be representation not of the Department of Justice, he's, he's again set out to dry the F.B.I. and the leadership there,  not the American people, not even the presidency as an institution, but the president himself. But he does keep saying that, you know, he's suggesting that the normal thing for Mueller to have done might have been to reach a prosecutive decision of course as you said, Matt, that's a catch 22 or or maybe you would say a Hobson's Choice, because there's, there was no other, no way to reach that decision. The only choice was to acquit. So, something that the Barr has done that strikes me as disingenuous is try to portray this as a, as able to be viewed through the prism of a routine matter, and this is what the DOJ does. There was no way to do that under any way of looking at it. There was, this could never have been a normal either thumbs up or thumbs down. You couldn't fault him for saying it didn't go normally because there was no normal model for it to follow. 


Harry Litman [00:15:25] Let me ask this of everyone: what do we discern from the Barr side of the testimony, about the state of the relationship between Barr and Mueller? We've heard again and again Mueller as the respectful soldier, and yet this, the letter that he sent, with the two letters, he said seem awfully inflammatory are they and their respective camps flat out antagonists here? Is Mueller Respectfully disagreeing? Reading between the lines where do you think the special counsel and the attorney general are vis-a-vis one another?


Barbara McQuade [00:16:04]Well, I think that the fact that Robert Mueller wrote a letter and didn't just pick up the phone as his Barr asked him, "Why didn't you just pick up the phone, Bob?" I think it's because he's furious. And that's why he wrote a letter because he wanted to document it. If it was merely "Hey Bill. I think there's some confusion out there. Let's, let's come up with a plan to clarify it." I think he would have picked up the phone. I think the fact that he put it in a letter and complained about the challenges, suggests to me that he is upset. About the fact that he didn't show up at that press conference on April 18th, I thought spoke volumes as well that Robert Miller was distancing himself from the decision that Barr had made. But, I think the fact that he wrote that letter is a very meaningful step that tells us a lot about their relationship. 


Harry Litman [00:16:51] What do you guys think? 


Matthew Miller [00:16:52]Yeah I agree. [00:16:53]Look, I think they're basically in open warfare now. When you look at the way Mueller handled this they, you know, they made it, if you look at the letter that was released today this letter from the 25th. So they actually started by making a phone call on on the 24th before Barr's letter was released to complain. They then sent a letter the next day the 25th, they then sent this other letter on the 27th, the one we now have seen. And it's not just the fact that they sent it but the fact that it leaked out. I think that's so extraordinary that that leaked when the time for maximum leverage and maximum embarassment for Barr, the day before his hearing. And I think on Barr's side you can tell how upset he is. Look, he's a guy who you could say he's extremely confident, the other way you could describe him as extremely arrogant. And you could see in the way he talked about this that you know I'm the A.G. I'm in charge and he looked at this as his decision and he gets to make it. And he was dismissive of Mueller and his team. I think, talking, you wouldn't describe them as the best and brightest at one point and I think he is quite offended that they had the temerity to question the way he handled this. [68.3s]


Harry Litman [00:18:03] You agree, Bob? 


Robert Raben [00:18:04] [00:18:04]If Mueller is mad I think 100 percent of the public is missing it. The sort of you know, it's quite Victorian to express furor by writing a letter. Particularly when he's dealing with people who are sort of in the Avengers and Wakanda age. I mean in what, literally in what regime are you operating, Mr Mueller? If you think you are communicating to anybody that people are mischaracterizing your work, and Congress does not have the opportunity to do the job they're supposed to do based on your work? Come out, come out, come out. What is the restriction on you? And I appreciate, he is, he is the Eagle Scout among Eagle Scouts. But it's a long, long wait to St Peter's Gate. We need you now, man.[57.0s]


Barbara McQuade [00:19:02]Do you think that if he gets called to testify before Congress, he might feel unrestrained, now that William Barr and Rod Rosenstein has said "You could have made a decision and you just chose not to." If he were asked, "If you could have made a decision what would that decision be?" Do you think you would answer that question? 


Robert Raben [00:19:20] I hope so. I hope so my experience with him personally and then my experience observing him is, you know, he wants to be remembered as the Eagle Scout. So whatever the rules say he's gonna follow the rules even in an age where people are not abiding by the rules. 


Harry Litman [00:19:36] I mean, look, that's just it and part of what we're doing here because we've all we've all worked with him. Yes, it's Victorian in a way. But we try to sort of decode it. And one thing I want to point out you know he's been working for 22 months with a really dedicated staff who've been going around the clock, and they, the constant, his letter, which for him was you know 212 degrees, must have been preceded by an absolute combustion within his staff. And they're still now, presumably, they are had something to do with the leak or potentially yesterday, but as as Matt says if they're an open warfare they are now part of the warriors. So yes he is, he's gonna be decorous no matter what, and I think people should be prepared for him to be tempered even in these circumstances. But the general point that there is an open antagonism and that every, there's going to be a tit for tat in the press and real blows will be struck, you know, I think is is pretty apparent at this point. 


Matthew Miller [00:20:53]I think that's right. But, I, I, I take Robert's point and maybe I'd describe it as that again, they're in open warfare. But it's an asymmetric war right now, where they're playing by different rules. And I think the real question, and none of us will know until we see Mueller testify, and I assume he's going to now. The A.G. says he has no objection although they haven't given the House a date yet, they do control it as long as he's an employee. You know, I would have expected him to, I would expect him before this week for his testimony to be kind of muted and not very interesting and not go beyond the report. But I wouldn't expected him to send this letter either. And the fact that he sent this letter tells me that he felt somewhat aggrieved. And, he sent that letter before Bill Barr did his press conference where he doubled down on misleading about what Mueller had done, and before his testimony today where he tripled down, and maybe quadrupled down, on misleading the public. So, if he was aggrieved when he sent this letter I can only think he feels more aggrieved today whether that means when he testifies he has a lot to say, I think it's very hard to know. 


Harry Litman [00:21:59] And by the way it's not just misleading, I mean I know Mueller is, is you know the the Eagle Scout of great prudence and maturity, but Barr you can piece together four or five statements that basically trashed Mueller root and branch. You know, he said again and again, "I don't even know what what Mueller was thinking in his in his core conclusion." He, he overturned him on evidentiary analysis after evidentiary analysis. He suggested the whole enterprise was misbegotten and there were a couple others like like that. There's really, if you were listening as a as a Mueller staffer with a sensitive ear, you heard Barr really excoriate your boss. 


Matthew Miller [00:22:47]Yeah, they need to get Jenny Reed in there to testify. That will be no holds barred.


Harry Litman [00:22:51] Jenny Reed being being, being an important staffer of Mueller. 


Matthew Miller [00:22:54]Or Andy Weissman. 


Harry Litman [00:22:57] Yeah. Oh my God. So we're focused on everything Barr said today and notably of course he's ignoring the subpoena to testify tomorrow at Judiciary. He may be held in contempt. There may be litigation. By my analysis, his position is not very strong, that the House should not be able to use counsel to question him. And I think it will, he will lose it. But it could take a few a few months. But my, my question is that I'd like to go around the horn on is, how much does it matter now? What, Barr has pretty much shown his hand. We know where he stands. He has done the damage that is going to do by having put his final conclusions on things to see now sort of recede in importance, and does the House Judiciary or other House committees sort of set him to the side and look to witnesses now? Look to McGahn, look to Corey Lewandowski, look to Mueller himself? Matt, what are your thoughts about that?


Matthew Miller [00:24:05]So Barr is apparently not going to show up on Thursday to testify before the House committee. He's defying their request and their subpoena. And I actually think that's fine. He obviously should, he should honor the subpoena. It's kind of flagrant, uh, flagrant for him not to. But in terms of what the Democrats are trying to do I don't think they need to hear any more from Bill Barr. There is a, there's a risk in them of getting caught up in a distraction here and forgetting that the target for them is not Bill Barr, it's Donald Trump. And every time Bill Barr is up there testifying, he's absorbing blows and you're arguing about his conduct versus the President's. And you have really the most favorable witness possible testifying before the American public because he's up there at times explaining why the president didn't commit a crime and his words carry more meaning than even the P,resident's defense attorney because he's the sitting Attorney General. So, if I were the House, I would basically move on and start going down the list of witnesses and find a way to make that, to make the Mueller Report come alive and you may have to fight. to get McGahn. 


Harry Litman [00:25:13] Well put. 


Matthew Miller [00:25:13]You may have to fight to get Annie Donaldson, but Corey Lewandowski is a private citizen. He has no, no, no legitimate reason to resist a subpoena. And I would start going through those witnesses trying to tell a story, rather than waste any more time with the President's essentially his defense attorney. 


Barbara McQuade [00:25:30]I would agree with Matt on that in terms of what Congress's job is. But when you think about William Barr and you know are we just done with him? Does he just go to the side? He still has an awful lot of power as the Attorney General of the United States. And we know from Robert Mueller's report that there were at least 12 other matters that he referred to other U.S. Attorney's offices on various things, we don't know what they are they're all redacted in the report. And so William Barr still wields power over all of those. And it's important those become his babies, and if their recommendations to charge Donald Trump Junior or the Trump Organization, William Barr is still the one who is going to make the final call on those things. And so, I worry that he will repeat his performance in those cases as he did in this case. 


Robert Raben [00:26:14] Barr et al., have every if your job is to block and tackle, and to make sure that your president is Teflon, then he being the center of a fight is perfect. You're seeing what's going on right now. The conversation is too much about whether we're going to investigate Mrs. Clinton's campaign, whether Barr and Mueller are in a cat fight and who hates whom, sort of an abstract question about whether you can charge the president for a crime. The opportunity cost of this conversation is one hundred percent. Nobody is talking about Trump and the Trump campaign holding up huge neon signs saying to Russia: "Help me win." And the more Barr et al. can keep this up, the better for them. The piece that sort of is lamentable is that my people, the Democrats who are doing oversight, I think we're going to double down and triple down on regular order. I think we're going to just have increasing umbrage at the fact that Barr et al. are operating under an omertà, where they're going to do everything they can to protect this president, as opposed to the American people. And Nadler and Cummings and Schiff are gonna jump up and down and say how inappropriate it is and how mean it is. Instead of articulating a strategy about how they're going to demonstrate to the American public that Trump is corrosive or corrupt or violative of law, they're going to exercise their prerogative as a coordinate branch of government and talk about how important it is that they be heard. That's what I fear. I am cautiously optimistic that someone will come up with a strategy that actually focuses on Trump's corruption. But I'm not seeing that yet. 


Harry Litman [00:28:18] Yeah. And just clearing the field for it you know is a matter of time. Time is the you know, the nemesis in all of these things. I just want to bring up again this Comey editorial from today. You know, as someone who's really struggled with what's happened to Barr and how does it work, you know and Barr seeming like a very strong customer coming in, but but seeming perhaps to have gone the way of other public officials whom Trump has basically ruined, that the Comey op-ed is compelling reading. Let me just just ask to people to, if they have any thoughts about two figures here: One, Don McGahn. I heard Barr say today that McGahn, that they have not waived executive privilege, which puzzled me completely. But that would McGahn is also like Lewondowski, a private citizen, he couldn't resist. But, the White House personally, Trump personally, could try to invoke executive privilege but it seems to have been waived so plainly by the publication of the report to Congress. But obviously there's some strategy that says otherwise. And then second, where is Rod Rosenstein going to be in in all of this? The credibility hit that Barr is taking obviously, you know, redounds to him as as the guy who stood mute and steadfast as Barr has said all these things. Is he going or are we going to see him come forward and second this notion that, "Yep, 48 hours we've looked at all the evidence, came to a different conclusion" and really put his own prosecutorial integrity or reputation on the line. 


Matthew Miller [00:30:10]So I'll go first with Rod I'll take that piece. I, I, if you're expecting Rod to in any way depart from Bill Barr, I think you'll be sorely disappointed. I have been skeptical of his motives for a while and skeptical of his strength. I think when the story is written about Rod Rosenstein at the end, it'll be that he was an extraordinarily weak figure at a time the country needed someone to be strong. And he started his tenure making compromises, writing that memo to justify the Comey firing, he gave, he made compromises all along. And I think he's allowed his name to be used by Barr in the closing stages of this investigation for really ill purpose. And I think Rod has kind of made his bed and he's going to move on to the private sector now. And I would be very surprised if we see him step up, in any way, become a hostile figure either to the President or to, or to the Attorney General. You just have to look at his reports, er, his remarks that were reported in The Post last week where he told the President he was going to land the plane and then in his resignation letter that was just effusive with praise for the president. I think he's, I think he's firmly come down, firmly decided what side he comes down on. 


Harry Litman [00:31:26] Boy that one was really stunning. Can you imagine telling the subject of a criminal investigation, "Don't worry I'm going to land the plane?"


Barbara McQuade [00:31:33]I thought "land the plane" was very disturbing, I also thought it was very disturbing, as Matt mentioned, in his letter where he says to President Trump something like, "I always appreciated your humor and your compassion in our private conversations," or something odd like that, is just so different from the attacking tweets that we saw from President Trump to Rod Rosenstein. And if that's true, what on earth are they doing having private conversations, when President Trump is at least the subject of this investigation? So, I found that language very alarming, as well. 


Harry Litman [00:32:04] I think that that covers it for this Talking Feds Now, emergency episode. Thank you very much to Robert Raben, Barbara McQuade and Matthew Miller. And thank you very much listeners for tuning into this special episode of Talking Feds Now. If you like what you've heard, please tell a friend to subscribe on Apple podcasts or wherever they get their podcasts, and please take a moment to rate and review this podcast. You can follow us on Twitter at Talking Feds Pod. To find out about future episodes and other Feds related content. And you can also check us out on the web at talking-feds-dot-com. We want to know what you want to know. Submit your questions to questions-at-talking-feds-dot-com. Whether it's for five words or fewer, or general questions about the inner workings of the legal system and federal prosecutorial practice for our Sidebar segment. 


Harry Litman [00:33:11] 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 Moldavon, Anthony Lemos and Rebecca Lopatin. David Lieberman is our contributing writer, production assistance by Sarah Phillipoom. Thanks to the incredible Philip Glass who graciously lets us use his beautiful music. Talking Feds is a production of DaLito LLC. 


Harry Litman [00:33:44] I'm Harry Litman. See you next time.