Harry Litman [00:00:00] Talking Feds is brought to you by Constantine Cannon. Constantine Cannon has extensive experience representing whistleblowers under both federal and state whistleblower laws. Their team of attorneys has an unsurpassed record of success. Learn more at Constantine Cannon dot com.
Harry Litman [00:00:18] A quick heads up on this episode, we recorded it before the redacted Mueller Report had come out. So you're going to hear a couple instances that now have been overtaken by events. But really the thrust of this is exactly contemporary, it's what's happening in Congress now that the Mueller Report has been delivered to it. And it really is in our view, down the middle, germane to the coming weeks.
Harry Litman [00:00:52] Welcome back to Talking Feds, a prosecutors roundtable that brings together prominent former Department of Justice officials for a dynamic discussion of the most important legal topics of the day, including the investigations of the president and his circle. Today we have sort of a hybrid show, we're here in Washington D.C. with three former federal officials who have extensive experience both at the Department of Justice, but also in working on the Hill, either in Congress or with Congress. So now that the main field of operations is moving over to Congress, we have the opportunity to talk to people whose rich experience in the sometimes tumultuous back and forth with Congress can really illuminate what the next week and months will show. We're going to talk first about the prospects for the house to get an unredacted Mueller report at all and then turn a little bit to the nuts and bolts of a possible independent investigation in Congress, how much of a sort of replay of what Bob Mueller did can we expect in Congress in the coming months.
Harry Litman [00:02:06] I'm Harry Litman, I'm a former United States Attorney and Deputy Assistant Attorney General. And I also was a line prosecutor. Today we're in Washington D.C. joined by former officials who have really superlative qualifications and experience for what we're going to talk about now that we've moved to Congress. First, Talking Feds regular Matt Miller. Matt is a partner at Vianovo, a strategic advisory firm, but he was the former director of the Office of Public Affairs for the Department of Justice. Matt, can you give a summary of what the Office of Public Affairs is and what it does?
Matt Miller [00:02:44] Yeah, it's the press office for DOJ, so they put out all the press releases, publicize all the indictments, guilty pleas, lawsuits, everything that DOJ does affirmatively, and then it also takes questions about investigations into department- DOJ by the House or the Senate, or all of the the other random things that DOJ isn't trying to publicize, but just that come in through the door on a daily basis.
Harry Litman [00:03:06] Questions from not just the press, but also from the Hill?
Matt Miller [00:03:10] No, from the press. There's a separate office that someone else on this podcast used to run takes questions from the Hill.
Harry Litman [00:03:15] Speaking of whom, we're really pleased and lucky to have Robert Raben join us for the first time on Talking Feds. He's currently the founder and president of The Raben Group, a progressive public policy firm. But before that- well, he had many roles both on the Hill and at the Department of Justice. He was the Assistant Attorney General under Janet Reno and President Clinton for the Office of Legislative Affairs, and- but also worked on the Hill for Barney Frank's staff and also House judiciary committee chair Henry Hyde. So what was your basic set of responsibilities at OLA?
Robert Raben [00:03:57] Same as Matt. It's explaining the policies of the Department of Justice to the American public, but the point was through Congress. So you're essentially the ambassador, or translator, as between Congress and the Department of Justice, on behalf of the entire administration.
Harry Litman [00:04:15] Now when I was a line assistant I knew if anything came in with a whiff, Congress send it right to OLA. Devin Nunes has asked to meet personally with Bill Barr. Would that be the sort of thing that would have to go straight to OLA?
Robert Raben [00:04:27] Well, hopefully it would go straight to OLA just for coherence, you don't want one hundred and ten thousand employees or whatever the number is, each having an independent voice. So ideally things are coordinated through the Office of Legislative Affairs, and something like that certainly the head of that Office would be involved in the meeting-.
Harry Litman [00:04:44] And there would be a meeting? There's- when a Congressmen wants a meeting with the Attorney General, it's pretty much-.
Robert Raben [00:04:50] That is a great question and we could have a separate program on sort of who you block and tackled, and who you said yes let's meet. But generally speaking, a member of Congress who's on a committee of jurisdiction would be heard.
Harry Litman [00:05:05] Committee of jurisdiction, someone who has real business in the-.
Robert Raben [00:05:09] Yeah, Judiciary, Appropriations, leadership-.
Harry Litman [00:05:11] And because there's nothing like doing a podcast with your boss, Elliot Williams is back. He is a Principal at the Raben Group, but also a former Deputy Assistant Attorney General for Legislative Affairs at DOJ. But you also had a role on the legislative side on the Hill, correct?
Elliot Williams [00:05:28]Yeah I was counsel to Senator Schumer. But with respect to that with your boss question, do I get like overtime because Robert's here? Like or like 50 bucks in my retirement account or something?
Harry Litman [00:05:37] I think that's right.
Elliot Williams [00:05:38]Yeah. Let's work it out after this, but no- Yeah, so I was counsel to the Senate Judiciary Committee under Senator Schumer. And so we did tackle a lot of these oversight questions as well. A very important one, just piggy backing on the point that Robert talked about, having an OLA isn't just about a coherent voice for people in the Department, but you also want to protect the line personnel from - I don't want to say intrusion from Congress, but it's actually quite, they can subject themselves to liability if they're being hauled up to testify before Congress and it gets a little bit dangerous.
Matt Miller [00:06:08] It used to be the job of the Department to protect line personnel. It's not as clear that's the view of the current leadership.
Harry Litman [00:06:15] OK. So let's dive in. The fight is already begun over the need or desire to see an unredacted report, so focusing on that, what are the tangible prospects for the House to see an unredacted report, and what's their next play going to be after that redacted report arrives on the Hill?
Robert Raben [00:06:36] It's a great question. It's going to be an exciting week if you're in the business of worrying about separation of powers, law, lawfulness et cetera. It really depends, obviously, how much substance we're able to see and infer from those parts which are not redacted. You know my experience is this is sort of divide into two camps, and other people can talk about whether there is a big strategy or not on behalf of the Democrats, there's going to be a huge camp of people who were able to infer from what we do get their pre-existing views on what happened, and sort of, "The words may or may not matter, but look there was whatever we thought." And then there's going to be a group of sort of institutionalists, of which Jerry Nadler clearly is, who whether or not the report basically tells them what they thought it was going to tell them, they're going to fight to the end for more and more information, so-
Harry Litman [00:07:29] Because they're institutionalists? I mean, you think Nadler's basic view is, We just have a right to this? As opposed to a deep-
Robert Raben [00:07:36] "I'm a chair of the Judiciary Committee, I've waited 20 plus years to be here. I care deeply about the institution and I represent a coordinate branch of government. Regardless of my personal political views, it's crucial that I do everything I can to exercise - for lack of a better word - the patrimony of the Congress." And this is not a Democrat or Republican thing. Jim Sensenbrenner is a Republican is the exact same way, whether he'll sort of be quiet about it I don't know. But there are institutionalists, who love the Congress, and they will fight to the mat for the perogatives of the Congress. We are a coordinate branch of government. The Supreme Court has punted over and over and over again, saying, "You guys work it out." Well this is what works-
Harry Litman [00:08:18] OK but so, do everything we can, fight to the mat. What does that actually mean? You're Nadler, what's his move?
Elliot Williams [00:08:25]Yeah but you see the problem is that you have the quintessential individual who is not an institutionalist in the president of the United States, and who from the very beginning of all of this has made the point of undermining the integrity of Congress and attacking- so it brings up this whole concept of presidential harassment is an insult to the notion of separation of powers. Congress has a duty and an obligation to be - I don't want to say investigating the president here, but at least engaging in the proper oversight that we were all talking about in our introductions to this very program. And so even under the- so take the partisanship out of it, even under the best of circumstances, the president has done a tremendous amount here to hurt the public's faith in Congress as this coequal branch of government that has an obligation to investigate. And that's going to be a big problem here because again you've got let's say if a third of the country, half the country, whatever it is, reflexively now distrusting Congress and calling this a partisan witch hunt and presidential harassment and all that. And it's very hard for this coequal branch to engage in its proper due investigative function.
Harry Litman [00:09:25] All kinds of problem. Now is the chance, things have been cleared away, they've got some moves to make to effectuate their oversight, what are the moves?
Matt Miller [00:09:34] They're gonna have to go to court, now they're going to have to go to court. Look, the AG has been moving the goalposts all over the place on what he's going to give to Congress. He started out with two buckets of information that he was going to redact. He then expanded that to four. He did back down a little bit this week, there are two buckets of information he says he's going to redact, classified information and information related to peripheral parties, which he has no right to withhold from Congress. People, members of Congress can get classified information, he can't release it to the public-.
Harry Litman [00:09:58] That was made up, right?
Matt Miller [00:09:59] It was, it was completely made up. He gave a little ground in a second hearing and said, "Well maybe after I release the first report, we'll come back and take a look at classified information, whether Congress can," he's going to have to do that or I think he would he would lose the subpoena battle over Congress. But then there are these other two categories of information: one, information related to ongoing investigations, which Congress will probably insist on getting that, DOJ will decline or refuse - I think they ought to refuse, the Department's position is laid out in a letter I think Robert signed in the Clinton administration about why it doesn't give that investigation. But then there's this final category I think is the hardest to figure out what's going to happen, and that's grand jury information-.
Harry Litman [00:10:37] And the biggest probably, right?
Matt Miller [00:10:38] Yeah, the biggest and the biggest problem for Congress, because DOJ can't just on its own turn that over. And the AG has gone from being very dismissive in his first hearing this last week, he was just completely dismissive, "Nadler can go to court on his own if he wants to," and then gave a little ground the next day and said, "Well I'll talk to him after it's over." So, whether Nadler has to issue a subpoena or not to fight over information, he's surely going to have to go to court, maybe with the Department, maybe without the Department, maybe even in opposition to the Department, to try to get a judge to allow grand jury information-
Harry Litman [00:11:12] Well I just want to follow up on that because maybe, doesn't it have to be in opposition? I mean, can they, can they go hand-in-hand skipping to the court? Doesn't it have to be a case or controversy?
Matt Miller [00:11:22] No, they could go to the court. Ken Starr went to the court and asked for grand jury information to be released. The Watergate prosecutor asked for it to be released. So DOJ can do it, they just, Barr just seems stubborn about it-.
Elliot Williams [00:11:33]One point on the categories thing, I did find it interesting and somewhat encouraging that Barr has said that he will exempt the president of the United States from that embarrassing information. Now I only said encouraging, I don't think it's comforting per se, because there's a lot of misconduct or potential misconduct or at least allegations thereof that doesn't involve the president of the United States, so I think-.
Harry Litman [00:11:54] Well he went stronger. He's going to exempt executive branch officials I thought or you know the categories, not just the president.
Robert Raben [00:12:00] This is an area though where I think the law is useful and important, but it's not dispositive. You know someday it may be dispositive, but I think while it matters, the court of public opinion is going to be much more important than, than whether or not something is referred to district court in the District of Columbia for adjudication. And the court of public opinion means how much energy there is around getting more than we see. You know one of the major problems I've seen over the years is if an investigative body - in this case an oversight committee, Judiciary, etcetera etcetera - is trying to prove something that the vast majority of people already believe, then you lose your ardor for it. So if a huge percentage of progressives have already made up their mind that the president behaved inappropriately, whether or not it was an unlawful behavior or just disgusting, and a huge percentage of conservatives believe the opposite, who are you talking to? What kind of energy are you going to be able to generate among editorial boards, among activists, among presidential candidates who are going to be the dominant narrative around this? So that's why I sort of started by saying a piece of this is the appropriate legal separation of power, who sets the rules, what are we entitled to? I think the much bigger piece is what are we persuading the American public of-?
Matt Miller [00:13:16] I agree except the way this administration operates is so different in that these fights over what Congress can get have always been, as Robert says, both about the law and public opinion. Everything is negotiable, everything is negotiable, and the administration- administrations when they give in, often give in not just because the law but because it looks so bad to fight it, it looks like you're trying to hide something. The thing that has broken down, not just on this, and not just on oversight, but in everything with regards to this administration, is you can't shame this White House. And so if you can't be shamed publicly, they don't feel any price in, in saying no to legitimate business. In the same way they don't feel any price on trampling over all kinds of norms - that public opinion check has to some extent broken down because the president has just seemed to decided that he's got 40 percent, he is not going to get above 40 percent - or not much above 40 percent, he doesn't want to go below it. And so he'll just double down on it and just say no, and that's the, that's the thing that I think is new here. We don't know how it's going to operate with an administration that just isn't governed by the same kind of care about public opinion than a typical one that I know.
Elliot Williams [00:14:24]But I think on top of that what's different now as opposed to the 1990s is that you just don't have the voice of you know the voice of the president's party being critical of the president the United States. Now some of that is a function of how popular he is with the base and with House Republicans and so on, which is that as long as he continues to be far above 40 percent with them, they're not going to turn on him. If you remember you know it wasn't that there was an uprising against President Clinton, but there were vocal, vocal Democrats speaking out and not even sort of the fringe folks who were you know facing primary challenges. It was a much more comfortable thing to attack President Clinton at the time. It's just not there. And so you don't have that - short of some Republicans really speaking out against the President of the United States, you just don't have-
Robert Raben [00:15:11] A piece that is, I think it's reflective here, a piece of it is the conservatives went after Clinton on the wrong issue. They went after prurience, not sexual harassment. And if they had focused their impeachment inquiry you know the politics of it around, you can't do that with an employee, many of the women who defended Clinton in Congress I think wouldn't have, and that's Pat Schroeder etc etc. I think as a political matter, I hope, and I don't know if there's a grand strategy among the Democrats - if so it's not perceptible.
Harry Litman [00:15:41] Everybody agree with that, by the way? Anyone perceive a-?
Matt Miller [00:15:45] I think their grand strategy is just to push, push, push because they don't know what the endgame looks like, and I'm not sure you could know what the endgame looks like. You don't know what's under the rocks you're trying to turn over, so their strategy is just to keep turning over rocks.
Robert Raben [00:15:55] I don't think the Democrats are doing anything wrong, I think this is a complicated thing. But one of the political cohorts that I think people will be focused on is sort of Susan Collins, Mitt Romney, Cory Gardner, the quote moderate end quote Republicans who are going to be in a position of asking, two of whom are in re-election this cycle, "Do you stand by this corruption?" I think we've sort of lost the branding around collusion. Someone decided that that was the legal linchpin, even though it's not, and I think Trump beat the Democrats on that. But you're going to see massive corruption. You're going to see an unsavory set of facts which show people profiting from their perches in the United States government. And that's the point that I'm suspecting slash hoping that progressives will stay focused on.
Harry Litman [00:16:44] I think we're pretty close to our time on this so we could go for hours, but let's go around the horn and I want to focus in particular on this point of, Do we think that the Congress and the public will see the unredacted report say before the election? If you have thoughts on that, but also just generally I think it's murky what happens next assuming Nadler drops a subpoena.
Matt Miller [00:17:13] I think you're going to see a lot this week because I don't think there will be much ground to make redactions on the obstruction of justice part of the investigation. Which is the part that we know pertains most to the president's behavior, that wasn't, from what- we've never heard of anyone in that part of the investigation going to the grand jury. So there shouldn't be any grand jury material, it shouldn't be classified. We ought to see all of that. With respect to the others, I think it's impossible to say what happens with the grand jury piece because we don't know what DOJ's, what position they're going to take. We certainly have no idea what a court is going to do. But in your time frame, whether it happens before the election, it's probably I mean probably would take around a year, 18 months to resolve that kind of question. So I think you know we're going to see a lot soon, the question is, you know, if they really fight on that grand jury thing I think it's you know sometime in 2020.
Elliot Williams [00:17:59]The collusion portion of it is obviously much more complicated and we know the litigation will take a very long time, and so I don't anticipate a fully unredacted report being made available before the election, if not far beyond.
Robert Raben [00:18:10] No, we won't have an unredacted report before the election. These people don't accommodate and they don't play.
Matt Miller [00:18:14] I agree. But I want to add one postscript to the postscript if possible, to pick up on something Robert said about having lost the debate over collusion. I think that might be right. I think the problem we've had over over the past two years, and if the Democratic Party is smart this will offer a reset, is focusing on the question of whether the president committed a crime or not. And that's naturally the place people go when there's a criminal investigation. It's also naturally the place that people go when you feel like every other check on the president is broken down. This report, the question people should ask is not whether the president committed a crime or not, but whether the president behaved in a way you expect the present the United States to behave, and harmed our nation. And that's a question that when we see this report, people in Congress ought to ask, and voters ought to ask, and I will be surprised if the answer is yes.
Harry Litman [00:19:02] That's exactly, so that's entirely within Congress's ken to do a reset in this kind of rhetorical, political way. But it's going to be, and you know an absolute uphill battle. Any whisper of a so-called relitigation, although I'm not sure we've even litigated, will have this unprecedented and kind of vulgar pushback, as you say. I agree with the first point Matt made and I think it's the important one. It's not simply that Mueller didn't use the grand jury that much for the obstruction, you know all the interviews with White House counsel and different witnesses who they wouldn't have put in. But also I think what matters most, what matters, what I'm most curious to know about is what was the nature of his reasoning and analysis for declining to engage in this traditional prosecutorial inquiry? And if it was something like, "We think it should be left to Congress," and the Attorney General just simply trumped that as it were, that's a very different posture than if he just threw up his hands and said, "I can't say," which is something it seems very hard to imagine Robert Mueller's doing. So, that his thought process and analysis should be basically unhinged from any evidentiary questions, and that's what I think and hope. Of course, then we have to get Barr's thought process. But we should get that when he testifies in early May.
Harry Litman [00:20:31] We're out of time on this. We're going see it playing out starting in the next couple of days, but it's going to be quite a brouhaha. We'll be back in a moment with this week's sidebar, but first I want to tell you a little bit more about the founding sponsor of Talking Feds. The Constantine Cannon whistleblower lawyer team has extensive experience representing whistleblowers under the wide array of federal and state whistleblower laws. I know this because I'm a member of the whistleblower team at Constantine Cannon. Constantine Cannon's attorneys also represent whistleblowers under the local false claims act as well as under the SEC, CFTC, IRS and motor vehicle safety whistleblower programs. The firm has recovered well over a billion dollars for the government and hundreds of millions of dollars in awards for whistleblower clients. Learn more at Constantine Cannon dot com.
Harry Litman [00:21:33] Once again, it's time to take a moment to explain some of the basic terms and relationships that you hear about in this podcast, and on cable TV daily, in a segment we call Sidebar. Today we're very pleased to have Grammy Award-winning singer, songwriter and musician Shawn Colvin on the program. If you were listening to the radio in 1997 then you definitely know her song, "Sunny Came Home." And she's continued to release beautiful and evocative music. Shawn is going to explain the chain of command at the Department of Justice, which is something a lot of you have asked about lately.
Shawn Colvin [00:22:17] What is the chain of command at the DOJ? The Department of Justice is run by the Attorney General, a Cabinet-level secretary who is the chief lawyer for the United States government. The current attorney general is William Barr. The Deputy Attorney General oversees the day to day operation of the DOJ. Twenty five DOJ divisions, called components, report to the Deputy Attorney General, as do all 93 United States Attorneys. The current Deputy Attorney General is Rod Rosenstein. The Associate Attorney General assists the AG and DAG and directly oversees 13 DOJ components, including the civil, civil rights and tax divisions. The Associate Attorney General position is currently vacant. The Solicitor General conducts and supervises government litigation in the Supreme Court and oversees other appellate litigation involving the government. The Solicitor General is fourth in command at the DOJ, and is the only officer of the United States required by statute to be learned in the law. The current Solicitor General is Noel Francisco. The prosecuting components of the DOJ, such as the criminal, the civil, and the antitrust divisions, are led by Assistant Attorneys General and their deputy assistant attorneys general. The prosecuting lawyers are called trial attorneys. This is Shawn Colvin.
Harry Litman [00:23:56] Thanks very much to Shawn Colvin. Shawn is touring with Mary Chapin Carpenter this fall. She has a great new album out called, "The StarLighter," featuring songs adapted from the children's music book, "Lullabies and Night Songs." Check out her website, Shawn - Shawn with a W - Colvin dot com.
Harry Litman [00:24:18] OK so let's turn to a different topic, and that is how much we should expect a sort of independent investigation now in Congress. Certainly one response or antidote to this redaction issue and the DOJ intransigence in general is to just call the same people before the pertinent congressional committees and and have them testify. Is that a likely strategy do you think, and what will it look like if it happens?
Elliot Williams [00:24:51]You know I still think you have to graft politics on top of anything Congress does. And so let's just back up a little bit and talk about how they handled the question of whether the president ought to be impeached. And I'm not weighing in on the merits of it or not, but the simple fact is it wasn't popular with the public, and then the House leadership abandoned it-
Harry Litman [00:25:10] Are we in '98 here-?
Elliot Williams [00:25:10]No, we're talking about right now. I mean the House, Nancy Pelosi threw cold water on it because of the fact that it wasn't popular with the public. And I think that, that, that popularity question and how much public is behind the House Democrats is going to dictate a lot of the steps they take. If they are seen as being too political with the witnesses they call, if if they are seen as engaging in a quote unquote witch hunt, they're going to be even more reluctant to call witnesses. So I just, it's the much bigger picture question here that I think-. Like, yes, they could call whoever they want, but I just don't know if that's where it stops.
Robert Raben [00:25:43] The answer is yes it's going to be 100 percent investigation, the men and women- but the men who have the gavels in the House are going to do everything in their power to get every stone unturned. Congress is not an inanimate object. It's five hundred and thirty five different people and thousands of staffers. It just so happens that the men who are chairing the relevant committees of Jurisdiction, Intelligence, Judiciary and Oversight are profound institutionalists who care deeply about the law and they're not generally engaged in what you frequently see, which is sort of gotcha oversight, the point of hearing is to make somebody look bad or, what happened to me a lot when I worked at the Department of Justice, you'd be subpoenaed and you'd answer a question and you'd say you'd talked to Vice President Gore on Tuesday, not a Wednesday, and then he would send a perjury referral because you lied to Congress. That's sort of the gotcha, undermining the other party. You've got three gentlemen here who care deeply about what the law should be. So, given that, it's 100 percent certain that they will devote all the resources they have to trying to make a case from a congressional perspective.
Harry Litman [00:26:50] And if Pelosi walks down the hall and gives the Elliot point, "Guys, this is killing us in the election, people aren't liking it, they're associating with the party," they go forward anyway?
Robert Raben [00:27:00] Yeah they may. I mean, they have larger and larger staff so they may also do drug pricing and all the other things that are going to be important for the Democratic agenda, but there's just no question that these three gentlemen are in Congress and not thinking this is their highest constitutional imperative.
Harry Litman [00:27:15] Public interviews, or as opposed to behind the scenes-?
Robert Raben [00:27:17] Whatever they can get.
Matt Miller [00:27:19] Here's the thing. It's hard to imagine how an investigation into this administration would constitute overreach. You would be profoundly incompetent as a chairman to tip into overreach with the number of just pure scandals sitting in front of you to look at. I mean the way that investigations tend to wind up being viewed as unfair is if they look unfair, like you think about the Benghazi Investigation. That's when you have a problem, and it's just hard to see when you have corruptions surrounding the president, the number of his people that have gone to jail, Cabinet agencies that are consumed by scandal. We've had a bunch of Cabinet members you have to resign or in scandal or be fired already. It's hard to see how, one, how they would overreach. Two, I would say I think people can get a little bit too nervous about the political pushback. You know who doesn't get nervous about that? The Republicans. And just from a purely crass political standpoint, even leaving aside the fact that Congress has an obligation to investigate, they would be 100 percent justified in investigating, the Republicans didn't pay any price for their investigations of Hillary Clinton. In fact, they won the presidency because of them. The FBI investigation into Hillary Clinton grew out of oversight where Congress was demanding to look at everything she had done leading into an election cycle. Jim Comey's behavior, his press conference and his letter, I'm convinced happened because the Republicans were hitting DOJ so hard that Comey overcorrect and reacted to it. So not only did they not pay a price for their complete overreach on Benghazi and everything else, they actually influenced the government in a way that landed them the presidency of the United States. So I think people can be a little too timid about this.
Harry Litman [00:28:49] How will Cummings, Schiff and Nadler coordinate among themselves and among their various committees?
Robert Raben [00:28:56] Better than most. Yeah. There is traditionally rivalry among committee chair about exposure turf. There is overlapping jurisdiction among the committees. But these three gentlemen have worked together before and none of them sort of can be accused of being like Darrell Issa, which is me, me, me, me, me, me, me.
Elliot Williams [00:29:15]Not agree with that fully. And again each committee has a different jurisdiction, right. So as Robert said, yes there are places where they overlap, but fundamentally there is enough area of difference between the three that that there is space for them to do their own thing.
Matt Miller [00:29:27] And as I was saying, number one, enough things to go after that they can share and number two that, we shouldn't lose sight of the fact Democrats are extraordinarily lucky that they actually have three very talented individuals as chair of these committees right now. It doesn't have to happen that way. It hasn't always happened that way. In the past, we've had some pretty untalented chairmen at times when we needed talent. These are both three really, really smart and talented-.
Elliot Williams [00:29:47]Bears mentioning again, as one of us said a little bit earlier, we just need to keep making sure this point's in the public sphere, that it's not about whether the president committed a crime. They're not investigating necessarily whether the president or anyone around him committed a crime. There was potential misconduct, misbehavior or behavior not befitting anyone in the executive branch, let alone a candidate for the presidency, or the president of the United States. Congress ought to be investigating that - and they are and we hope that they do a good job, but I think all of this talk led by the president about the fact that, "Well either it's a crime or no crime, collusion quote unquote, or no collusion." And that's just not what the inquiry ought to be. That's not what it should be for any of these three committees.
Harry Litman [00:30:29] Anybody other than the president who you think the committee will take a hands off approach to, and be too skittish to call? Literally anybody, it's going to-.
Robert Raben [00:30:39] Those are two different things. They could call them and be skittish- Mueller, you know he has successfully branded himself as the Sphinx in charge. And for anybody who's ever dated a man that is emotionally unavailable, it's always frustrating. He is, he is going to go to his grave with the brand of rectitude. And it's you know it's quite, it's going to be quite frustrating, all the projection that has gone on on both sides about what he's going to do, why he declined to offer an opinion to the Attorney General, the Attorney General who got the job because he told the president that this was going nowhere. Why Mueller went through all this effort not to offer an opinion, is, is really sort of the evanescence of what- it's, that's the piece that you want to have answered. He will give us no satisfactory answer on that-
Harry Litman [00:31:35] No answer, I agree, that's not already in the report. OK. But I was thinking more about administration witnesses, anybody who they- will, will Don Trump Junior be called? Will Jared Kushner be called?
Matt Miller [00:31:47] I think you know calling Kushner's probably harder just because the White House traditionally has been very reluctant to make White House officials available. It's that when you look at where Congress' subpoena power is weakest with respect to the presidency, it's always White House officials and getting White House officials there for testimony. Donald Trump Junior though doesn't have any protection. He doesn't have any protection of any of the lower-level people that are in the administration. He is a private individual. He has no right to resist a subpoena-
Robert Raben [00:32:14] But on the White House officials, this is, this goes back to the everything is negotiable. Years ago, for those of us over one hundred and ten, Condy Rice, National Security Council, she was never going to testify. The Senate wanted to hear from her. She's not going to testify. We don't send up National Security Counil. Condy Rice is never going to testify. Then she testified. And that's where the court of public opinion comes in. It's not, the rules didn't change in between the no and the yes, it's that enough editorial boards and pundits and others came in and said, "This is important to hear-"
Matt Miller [00:32:42] But if you're willing to resist long enough, the other example of that is the Judiciary Committee really want to hear from Karl Rove in the the Bush administration. And he did testify, in 2009 when Barack Obama was president-
Elliot Williams [00:32:55]Well I'm also curious when we see whatever unredacted stuff we see this week or whatever, if there's any, anything is enlightening about why we didn't hear from Trump Junior or why we didn't hear from Kushner. Now, that might be under black boxes, but it also you know there might be some information as to, "Look, you know, we poked around here, we looked into it, and we found that at the end of the day these guys really didn't have much of anything," or, "Hey you know we were really reluctant to go sniff around White House officials," or whatever the basis might have been, and maybe that ends up weighing on Congress's decision to do so. I'm more just, that's just a point of curiosity and we just don't know.
Harry Litman [00:33:30] Well and it's more than curiosity, right? Because what he seemed to be on the verge of indictment about, even by his own account, was lying to Congress. And that ought to be something that you know you would think would be of keen concern to the oversight committees. Let's go around the horn because I think we're out of time on this one as well, with your thoughts about, do you agree basically with the idea that we're just going to be in nonstop investigation mode even perhaps after 2020?
Matt Miller [00:34:02] I think so. I think there are, as many resources as the House committees collectively have, they don't have enough resources available to fully air the vast amount of corruption in this administration from the White House to the campaign to the Inaugural Committee on through the relevant agencies. There's more work than there is time available.
Elliot Williams [00:34:22]Same thing. I just don't see how we can not - assuming Democrats retain the gavels, if they don't, I think things change because we are in a partisan world. But given all of the things that the Southern District of New York, and the Eastern District of Virginia, and the New York State Attorney General's office, and as the New York DA, and the DC US Attorney's Office, and the US Attorney's Office for Eastern District of Virginia, and the Justice Department National Security Division and, and, and, and, and on and on and on that we, and Congress and multiple committees of Congress, we know have actionable evidence or at least are looking at, given the sheer amount of that it is impossible to see how many of these things don't extend for years beyond this administration.
Harry Litman [00:35:00] I agree. And just the prospect, I mean in general, if it's not that there's like an imperative even more than criminal judgment of the president's closest officials of knowing just what happened here and is it going to be left to historians you know with a record 20 years from now? It seems like an intolerable possibility. 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.
Harry Litman [00:35:31] Our question today comes from a listener on Twitter who wrote, "Is it appropriate for the House to subpoena Donald Trump's tax returns, and will the subpoena be enforced?" Five words or fewer.
Robert Raben [00:35:47] Appropriate but unnecessary.
Elliot Williams [00:35:49]Appropriate? Yes. Happening? No.
Matt Miller [00:35:52] Not just appropriate, the law.
Harry Litman [00:35:53] Appropriate? Yes. Happening? Yes.
Harry Litman [00:35:59] Thank you very much to Matt, Elliot and Robert, and for listeners for tuning in to Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple podcasts, or wherever they get their podcasts, and please take a moment to rate and review this podcast.
Harry Litman [00:36:17] You can follow us on Twitter at Talking Feds Pod to find out about future episodes and other Fed-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 for our sidebar segment.
Harry Litman [00:36:43] Thanks for tuning in. And don't worry as long as you need answers, the feds will keep talking.
Harry Litman [00:36:54] Talking Feds is produced by Jennie Josephson, Rebecca Lopatin, Dave Moldavon and Anthony Lemos. David Lieberman is our contributing writer. Production assistance by Sarah Philipoom. Photography by Leo Cooper. And thanks to the incredible Philip Glass, who graciously lets us use his music. Special thanks to Shawn Colvin. Talking Feds is a production of Dalito LLC.
Harry Litman [00:37:23] I'm Harry Litman. See you next time.