Harry Litman [00:00:08] [Music] Welcome to 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 pressing legal topics of the day, including the Mueller probe and related investigations. I'm Harry Litman. I'm a former United States Attorney and Deputy Assistant Attorney General and also Assistant United States Attorney, or line prosecutor.


Harry Litman [00:00:34] Good evening everybody. We're here in sort of emergency session because at 5 o'clock, as everybody now knows, the Attorney General of the United States announced that Bob Mueller had given him the much-awaited report and that Mueller's probe is now finished, leaving perhaps more questions than it answered. [End music]


Harry Litman [00:00:58] I'm here with Paul Fishman, the former United States Attorney from the District of New Jersey and Department honcho with many positions, Julie Zebrak, a honcho in the Obama Justice Department, and Matt Miller, the head of the Office of Public Affairs in the Department of Justice with Eric Holder, to puzzle through what this all means. I'd like to start with trying to give everyone's best opinion about just what exactly Bob Mueller gave William Barr today. Barr's letter says there was a report about declinations and prosecutions. Do we think that's all it was, or is there more to it? Paul, you have any thoughts?


Paul Fishman [00:01:45] Well so look, everybody knows the prosecutions that Bob Mueller has already brought. And there's been a lot of them and they've been consequential and they've been wide-ranging. But what's really interesting to me about this is essentially under the special counsel regulation, the special counsel is supposed to describe to the Attorney General of the United States, to explain, in the language of the regulation, the declination decisions he has reached. And what that means is he supposed to explain to Attorney General Barr why he has not prosecuted certain people or brought certain cases. So the question on my mind, and I think the question on everybody's mind should be, is it because there's not enough evidence? Is it because the crime wasn't committed? Or is it because, in the case of the President of the United States, the existing legal opinion of the Department of Justice is simply say to Bob Mueller, "You are not allowed to indict a sitting president of the United States no matter how strong the evidence is."


Harry Litman [00:02:47] Yeah. And Matt what do you think? I mean we have both the president, who's subject to that quandary that Paul outlined, but also of course a whole circle around him, not to mention Roger Stone who's under indictment, whom we might have thought Mueller's main charge would have encompassed. And yet as best we can discern, he seems to be walking away from them. Is that a surprise? And do we think there's more to it than Barr has indicated? 


Matt Miller [00:03:15] You know I think before the Roger Stone indictment, this would've been a surprise that there were no more indictments coming. But I for one, after the Roger Stone indictment, thought that that was probably the end at least in terms of a conspiracy indictment. I know some other people thought that there would be some follow-on conspiracy indictment. That never really made sense to me, I assumed, I thought if you were going to do it, you would do it with Roger Stone and so there wouldn't be another one. But that there may still be something else, someone indicted for lying, maybe Donald Trump Junior. Or, of course Jerome Corsi, who it appears today probably isn't going to be indicted unless he's somehow been referred to a U.S. Attorney for prosecution. 


Matt Miller [00:03:52] I thought one of the interesting things in trying to figure out what this report looks like, Barr didn't say much about it in his letter, but DOJ told reporters on background that it was comprehensive. I think that you know obviously, that's a word that can mean a lot of different things. But when you look at the regulations, the regulations themselves don't speak much to what the report ought to look like, but some of the accompanying language - at the time, that one of the Federal Register described it as you know as "brief." And it sounds like it is not a brief report, but Barr is reported hours later to still be at DOJ tonight, reading through the report as he figures out what to do. So I think, no matter if we see it soon or whether we see it later, I suspect it's going to be something along the lines of what Paul was describing, which is a very lengthy explanation of why they didn't prosecute those individuals in the Trump orbit that that, that ultimately they didn't file charges against. 


Harry Litman [00:04:50] Any thoughts about it would have worked that way, Julie or Paul, having been in the Department when important documents make their way to the Attorney General? 


Paul Fishman [00:04:59] I would be stunned - Stunned! - if this was the first time that Bill Barr had seen the report. I would be even more stunned if Bob Mueller hadn't already briefed him about what was going to be in it. 


Julie Zebrak [00:05:12] I have to agree. I have to agree with Paul on that. I just think that staff certainly would be in touch with what was going on. Bill Barr's staff, in addition to Rod's staff possibly. I mean, things just don't just pop up on the AG's desk and nobody's seen them. I mean I just don't expect that would happen here either. 


Paul Fishman [00:05:36] One of the reasons is that, we have to keep in mind, Bob Mueller is is not a independent counsel in the way that Ken Starr and the people of that era were independent counsels, appointed by a court, not responsible to the Attorney General of the United States. The way the regulation is structured, is Bob Mueller's boss is still the Attorney General of the United States. When Jeff Sessions was recused it was Rod Rosenstein. And so the idea that Bob Mueller, who is, who is somebody who is used to a chain of command - and by the way, had Bill Barr as his boss for three years at the end of the Bush administration - the idea that he would somehow surprise his friend and his boss with a lengthy report at this stage of the game strikes me as extraordinarily unlikely. 


Harry Litman [00:06:18] Yeah I agree Paul. I think it'd be very unlikely that that Mueller did not- and the staff did not, exchange information about the main contents of the report. And what about this, I, we envision now there's a there's a process that's going to go on to review classified information, possibly grand jury information. That could be very time consuming. And now that everyone knows Barr has the report, it's a real pressure cooker. He'll be you know asked about it every day. Do we think that Mueller has already, or that or that the report already has gone through the process of identifying and making strikes and balls- calls on the classified information? Matt, any sense? 


Matt Miller [00:07:05] You know, so he's done that once before. At least once before, when he released the[00:07:08]GOU [0.0s] indictments, it was clear that a lot of the underlying material came from intercepts and other products of the intelligence community. He had gone through the declassification process to return that indictment. So it wouldn't surprise me if he has done it already with respect to this report. I think it would make some sense, but I think you're right that Barr very much is going to understand that having announced this today, doing this is a two step process. There's a lot of pressure on him and on the Justice Department now. And you could see them trying to let a little of that steam out of the pressure cooker by announcing they're going to release the findings maybe as soon as as this weekend. And I suspect if they said as soon as this weekend, it's because they plan to do it this weekend. They wouldn't want to set something they they couldn't meet. And I think what that does is it underscores the point the rest of you've been making, that I agree with, which is Barr has known these findings already. He may not have seen the language of this report, but he would have been briefed either by Mueller or by Rosenstein. And I think it's important remember that it's been reported that that people from Rod's staff have been meeting with Murrow once every two weeks, so they have known every step of this investigation. They would know these findings before they actually looked on the document itself. 


Harry Litman [00:08:25] Now of course though, that's what he said, "I'll give you these findings as soon as this weekend." But that leaves so much that presumably is in the report that he won't be giving. So it seems to me that will be immediately in this real pitched battle between Congress and the Department for the additional information. What he says in the letter is, "I'll give you these findings and then I'll consult with Mueller and Rosenstein about other information in the report." That includes say both the counterintelligence information and information about the president's conduct, I would imagine - Julie, would you agree?


Julie Zebrak [00:09:11] I absolutely think we're going to be. I mean I feel like we're at that point now. I'm already seeing key 2020 candidates certainly calling for full release of the report, nothing but 100 percent transparency. And they're ready to go. I certainly expect that the oversight piece of Congress is going to be kicked into high gear. And I anticipate that you know there we're going to be living through this drama for probably the duration of this presidency. 


Harry Litman [00:09:48] And what do you think the the battle lines will look like? Do you think in pretty short order, even though Barr has said he's for transparency, that the Department will be kind of girding for a court contest involving executive privilege or deliberative privilege? Do you think they'll be combatants in pretty short order and the battle will be joined at the Department level as well? Paul?


Paul Fishman [00:10:15] I have to say, I'm not sure I entirely agree with Julie. I think Bob Mueller, for all his reticence about speaking in public, has been in Washington for a really long time. I think he understands, and Bill Barr understands, as well as anybody, what the political appetite is in that city for findings like these to be kept under wraps for any serious period of time. I actually, and I actually think that that they have undoubtedly already done the classified information scrub. I think they've done the grand jury secrecy scrub. And I think they have really understood for months and maybe even since the beginning that at the end of the day much of what Bob Mueller concluded in this realm was going to be made public. I think that that Bill Barr's letter coming out of the gate today to Congress suggests that he understands that too. And I think that they will do everything they can to get this out as quickly as possible because nobody - not Bill Barr, not Bob Mueller not honestly the White House, wants this fight to go on for a really long period of time. 


Matt Miller [00:11:22] Harry, can I both agree and disagree with Paul? I think you're absolutely right that they are going to try to get the conclusions out, he all but said that today. And I think you're right that he will read the political winds to be what they are and those are pro-transparency. But he left a lot of wiggle room in that letter today- 


Harry Litman [00:11:43] He really did, yeah. 


Matt Miller [00:11:43] What he said is he's going to release what he can consistent with regulations, law, and the longstanding practices and policies of the Department. And that last, that that third category, "the longstanding practices and policies," you can use that to justify withholding a lot of information, or at least withholdinh initially and making Congress fight it out in court after they issue a subpoena. So I, I hope that he's going to be transparent. But you can see him for example saying, "Here are the conclusions that that the special counsel found. But when it comes to both the report and the underlying information, you know the Justice Department just doesn't release that kind of information. And we made some mistakes in doing it with Hillary Clinton and maybe in the last two years we made some mistakes releasing information about this investigation that that the president wanted us to because it helped him. But we're not, we're turning the page and we're not following those practices. We're going back to the way the Department usually does things." And if he wants to do that, there's there's that you can read his letter to to be setting up that kind of fight. 


Harry Litman [00:12:46] Yeah I think you could read it that way. That's certainly the marker that I thought the reference to the DOJ policies was referring to, and you combine that with his testimony at his confirmation hearing about not giving information about people who aren't charged. I think what you'll hear from the Schiff and Cummings and Nadler is a, as you just said, in the last two years, meaning when the Republicans were in control, Nunes and others were able to shake loose information. 


Harry Litman [00:13:17] We also have this interesting point that I think I already saw members of Congress setting up on TV. In Watergate, Judge Sirica, with the approval of the grand jury, actually released the grand jury information, which a judge is able to do at or at least in confidential form to Congress. But there, pretty much everyone whose rights could have been trampled had already been either charged or was sort of beside the point, except Nixon himself, who said that it should be released. So it's unclear how strong that precedent is going to be. But obviously there'll be a move to try to shake loose the grand jury information. Do you think, Paul and Julie, that the Department will stand fast on that, on the rule six stuff, or that they'll be open to some kind of motion to the court to release it? 


Julie Zebrak [00:14:15] I'm going to defer to Paul on that, but I have something I want to come back to when Paul's done. 


Paul Fishman [00:14:19] OK so so look you know look I have been a firm believer for a long time that the Department should preserve grand jury secrecy whenever and wherever it can. It's a critical component of getting people to cooperate and getting truthful and full information from people in front of the grand jury. And ultimately, when people are investigated and not charged, the real virtue of that rule is that nobody knows who they were and nobody knows what people said about them. Here, on the other hand, we actually have a very good idea of what Mueller was investigating. We have a very good idea of what kinds of crimes you are investigating and who might have been involved. So that's a little different. 


Paul Fishman [00:15:00] And the truth is that this is a rule that Congress has bent from time to time when it really wanted the information. It's a, it's a practice that the that the Department of Justice itself has avoided sometimes when it thought it was in public interest to do that. And the perfect example is the Department's report in Ferguson involving the police shooting, and that particular episode, where the Department's Department released an 80 page single spaced report describing what every witness said. And I think under these circumstances, particularly if it's as people suspect the report, what the report really says is, there's a lot of evidence about the president of the United States but Bob Mueller doesn't think under existing Department principles he can prosecute a sitting president. I think there'll be a real hue and cry to find out what that evidence really was. 


Harry Litman [00:15:46] Julie, you had a point to make. 


Julie Zebrak [00:15:48] So I mean I want to go- We're focused on the Department in this conversation and Congress. I don't think we are sort of factoring in, and this is what I started with, and I think it's really important, what, really what the the voters want and the Democrats know the voters want in terms of putting up a fight. So it may be the Department's policy, and certainly those of us who have worked in the Department and leadership offices know the give and take the dance that the executive branch does with Congress over law enforcement sensitive information, over national security issues. We know the fight that can go on and on and on and we know that there is a give and take required. But I think there is a very big audience that is watching, obviously, in this circumstance. And I think that, I think that the Democrats are going to have to really put on that show - and I don't mean to suggest that it's not in earnest, but they really you know there's there's half the country and half the world who wants more information. And I just don't think they're going to be satisfied with sort of saying- hearing from Barr, "Well, this is all we're going to do." I think they will put up a strong fight. 


Harry Litman [00:17:09] Yeah I mean that's an excellent point. And think about it from the Republicans' point of view. So, what do the Mitch McConnells of the world do now? It's one thing to say, "Well we don't think it's that significant," or, "It was before he was president," et cetera. But what's the principled argument you make in the public arena for not getting disclosure? Do they become all of a sudden the you know the great spokespersons for grand jury protection? It doesn't seem like it has that that much sort of political salience if that's the way they're going. 


Julie Zebrak [00:17:43] I agree. 


Harry Litman [00:17:44] Well I mean what would you even say if if the question is should the, should the president's conduct and Mueller's conclusions about it be disclosed?


Matt Miller [00:17:52] Well look I'm going to put on my partisan Democrat hat and say, You cannot overestimate Mitch McConnell's ability to be to be hypocritical and switch on a dime. That said, the politics of this are pretty one-sided. When you look at public opinion polls they're, 90, 90 to 10 in favor of release. The House just voted 420 to nothing in favor of release. So that the arguments in favor of transparency are very, very strong. Another issue we haven't discussed yet with that about the transparency of this report though that could still come into play you know grand jury secrecy secrecy is one thing, but with respect to the obstruction of justice investigation, I've never seen a report of any of any White House staff member going in to talk to the grand jury. All the people that were there to witness the president's obstructive acts it seems - or potentially obstructive acts - did voluntary interviews with the special counsel. And it was reported at the time that the White House allowed those interviews to go forward but reserved the right to assert executive privilege later. So you could still have a play where Barr wants to release certain aspects of this report and the White House steps in and asserts executive privilege, and that that puts the Justice Department in a very tough situation because that is the president's call. I think you then have Congress fighting, and subpoena, you get a court fight. And I think it'd be hard to argue for withholding that information. But if the president wants to do it, that is a big fight that could take some time to resolve. 


Harry Litman [00:19:25] Yeah that's really interesting because Barr has said he's for transparency and made it clear he would stand up to the president. But if the president is asserting executive privilege, that really seems to be you know exclusively and uniquely his prerogative, and how that's something that Barr can just ignore or resign over is tricky, to say the least. Now there's the Nixon, US versus Nixon precedent which indicates that the claim might not succeed, but you know it requires a certain weighing of events and circumstances. That was 40 some years ago, and the fight itself would take what? At least a year. So that's something that that you know there's the factor of time here and on whose side it is. Because if another year or two goes on without a judicial resolution, the air kind of leaks out of the out of the tires for for Congress, don't you think?


Paul Fishman [00:20:22] Well yeah that, that's right, Harry. But there, but there are a couple of things about that that I think are a little different. First of all, what's weird is, in order for the president to assert executive privilege over portions of this report or for the White House to intercede, the White House would have to get a copy of the report before Congress and before the public. That itself, that feat of the report itself in that circumstance would be extraordinary, to give the target of a criminal investigation and the subject of a report a copy of the report under those circumstances before anybody else got it? I'm not sure how that's going to play publically, I leave that to Matt. 


Paul Fishman [00:21:00] But here's the second point on Nixon. The reason in the United States versus Nixon that the Supreme Court decided that executive privilege wouldn't apply, that the Nixon White House, under some circumstances, could not keep evidence away from the grand jury was because it was a grand jury, because it was a legal proceeding. And here on the other hand, if the president decides to assert executive privilege, it's, it's against Congress and against the public. And I think the courts under those circumstances would be much more reluctant to get involved than they were in a criminal investigation. So while the Nixon precedent does say that, "In an investigation of the president for criminal conduct there are certain circumstances in which the president's executive privilege gives way-" I'm not sure that the logic of that opinion actually applies in this situation. 


Harry Litman [00:21:52] That's a really terrific point. OK. Well I'd like to go around the horn maybe and and finish up, and I'd like to ask everybody both for final thoughts but to address two questions in particular. One, will Bob Mueller ever appear to testify in front of the Congress? And two, will in fact all the information in Mueller's report come out one way or another, one time or another, by hook or by crook, or will there actually be some that will be consigned to the catacombs of the Department of Justice? Can we do this counterclockwise as I envision it any way? Matt. Then Julie, then Paul. 


Matt Miller [00:22:33] I think Mueller will testify at some point and it will be a profoundly boring hearing because he won't say much more than is in his report, which will probably be released in some form or fashion by that point. I think he'll stick pretty closely to to what DOJ has said publicly. And I do think that all the- both both his report and all of the underlined evidence will come out at some point. But I think it's possible that that point is under a President Kamala Harris or President Beto O'Rourke, or you know it is somewhere you know more than two years from now, at the end of some very long, drawn-out court fights. 


Harry Litman [00:23:09] Julie?


Julie Zebrak [00:23:10] So Matt you just broke my heart. I got all excited when you said that that Mueller would testify, and then when you said he wouldn't say much, you broke my heart.


Matt Miller [00:23:19] I'm sorry. 


Julie Zebrak [00:23:22] So- and the heart of millions of Americans. But I think I do think you're right on that. I do think he'll testify. I do think, I guess I'm less optimistic that the information will come out under a President O'Rouke or a President Harris, because I I mean I think that that when it all comes down to it, everybody is going to see an angle and we always seem to revert back to the value of executive privilege and, and I would worry frankly that that just as we all in the Department of Justice get very protective of deliberations and everything else that we need to preserve the integrity of what we're doing when we're at DOJ, I tend to be concerned that one day we won't get all of this information. We'll get dribs and drabs and we'll all sort of know in our hearts what we think happened, but we won't have the finality that we crave as a country. 


Harry Litman [00:24:30] Paul?


Paul Fishman [00:24:30] Look for Bob Mueller's entire career in public service, he has been notoriously a man of few words in public. In private, he's a much more voluble and gregarious human being, but in public he has not been. But- and as long as he's been special counsel and as long as he's kept control of the information that was within his office, within his grand jury, with the you know on his- on his desk, that's been fine. And I think ultimately as a result he will testify, as Matt said. And I think he will not go beyond the four corners of his report. But I do think that now that he's delivered that report, now that he's written down on paper things that he knows, things that he's learned, things that he's seen, things that he's heard and that information now belongs to other people, that he's lost control of that narrative. And I think ultimately - and not anywhere near as late as Julie predicts, I think long before there's another president, I think we will see large a large part or maybe all of what's in that report. 


Harry Litman [00:25:34] And you know we have seen Bob Mueller testify before when he's been asked to. I mean the decision may well rest in the hands of the Department. But I think for the reasons everyone's outlined they'll see the public imperative of bringing him forward to talk. But it will be as you suggest just the facts ma'am and the, and the four corners. 


Harry Litman [00:25:57] I myself think that in fact the report cannot stay closed to history. There will be aspects of it, it might be a few years, it might be by leaking, maybe historians. But but I do think that it's just intolerable as a policy matter but also impractical in in political terms that it somehow stay hidden, though the mechanism for its disclosure, I agree, is a little bit opaque. And I do think you will see Bill Barr say in the first instance that there's some information that just can't come out. 


Harry Litman [00:26:37] OK, that's all we have time for in this emergency session of the Talking Feds. [Music] Thank you so much Paul, Matt, Julie for being available on a crazy day when so much was happening. Talking Feds, this podcast was produced by Jennie Josephson who performed heroically in very short notice. Research by David Lieberman and research assistance by Sarah Phillipoom. I'm Harry Litman. We will see you next time as this drama continues to unfold. 


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Harry Litman [00:27:57] I'm Harry Litman. See you next time.