tf_45_SONDLAND TESTIFIES: THE ANSWER IS YES
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Harry Litman [00:00:05] Welcome to a special breaking news episode of Talking Feds Now. A prosecutors roundtable that brings together some of the best known former Department of Justice officials for a dynamic discussion of the most important legal topics of the day. We at Talking Feds convene special Talking Feds Now episodes when there are days of blockbuster news and today has been in one sense, the biggest blockbuster we've seen in three years, at least in political impact, because it has brought the president of the United States closer than ever to the possibility, still remote, but tangible, of removal from office, all due to the much anticipated testimony of Gordon Sondland, the still Ambassador to the EU. There was great suspense that Sondland would be forced to take the fifth when he stepped forward, but instead he more or less spilled, all specifically saying, yes, there was a quid pro quo. Everyone knew it. The president, the Secretary of State, the Secretary of Energy, the Chief of Staff, and more. As we speak, the Congress is back in hearing its sixth. But we are stepping out to give you our best Talking Fed analysis of what's happened and what it means for the hearings. I'm Harry Litman. I'm a former United States Attorney and Deputy Assistant Attorney General and a Washington Post columnist. And I'm joined by three Talking Feds stalwarts. First, Barb McQuade, the former United States Attorney in the Eastern District of Michigan and a current MSNBC legal analyst and professor at the University of Michigan Law School. Elie Hoenig, a former Assistant U.S. Attorney in the Southern District of New York and current legal analyst for CNN. And Jill Wine-Banks. Well known as a prosecutor in the staff of the Watergate special counsel that prosecuted Nixon, a later General Counsel in the Army and a current MSNBC analyst. Guys, let's just dive right in. So much happened, so much to talk about. Let me start here. It seemed seismic. I think by any measure, it was Sondland's testimony. And it struck me that the Republicans were flummoxed, didn't know what to do, and came in, I think almost stalling until they could get their signals straight. But after they did seem to come at him and challenge him somewhat. So my first question is, is it game over as far as the basic quid pro quo and reason for it? Investigations equals Burisma and Biden -- all the facts and leaving only argument on the impeachability. Or did the Republicans succeed somewhat in walking back Sondland central testimony that there was a quid pro quo? I served that up to anyone and everyone.
Barb McQuade [00:03:21] I'll chime in with a thought, Harry, and others can tell me if they agree or disagree. But I thought one of the things that Republicans were able to do was to get Gordon Sondland to concede that Trump himself never specifically said this is a quid pro quo -- the military aid, in exchange for the investigations, even though Sondland said it was abundantly clear because two plus two equals four. I made that assumption. And I think that Republicans were trying to drive a truck through that hole and say, look, see, there is no quick quid pro quo. But I think the thing that totally belies that is what President Trump himself has been demanding that we all do in all caps to read the transcript. The transcript itself, I think, demonstrates that President Trump is very much steering the ship here in response to the question about military aid. He himself says, I need you to do me a favor, though. And then brings up these investigations. And so I think strategically they'd be very foolish to try to persist in denials that there was a quid pro quo and instead say even if there were a quid pro quo, that is not an impeachable offense. I think that would be a much more credible strategy at this point.
Harry Litman [00:04:40] Elie, Jill, you you agree with that? Do they have enough to drive to drive a hole through or not?
Elie Hoenig [00:04:46] I thought I thought today was an incrementally good day for Democrats, but it wasn't the House coming down that it seemed like in the beginning. I thought there was a flow to the day and this happens at trials as well. I think when it opened, when we saw Sondland's opening statement, there was an "Oh, my goodness moment." It's all it's all happening. He's giving everything up. This is, as a lot of people are saying, this is a John Dean moment. But I think as the day progressed, Republicans got their footing and did poke holes, some holes, enough to at least take it down to that level and Sondland himself, look, he's a shaky, credibility challenged witness. And I think--
Harry Litman [00:05:22] Why do you say that? What what makes him that way?
Elie Hoenig [00:05:23] Well, OK, first of all, he had to supplement his testimony when he was reminded by other witnesses that he actually had proposed a quid pro quo. He somehow admitted this July 26 restaurant phone call with the president of the United States from his testimony. And I'm definitely not buying this whole thing about I didn't understand that I didn't understand Burisma moment meant, Biden until way down the line. That's nonsense. And he's using it to try to shade things--by the way, all of these fibs and lies or distortions go in Trump's favor and Sondland's own favor. And I think he came part of the way clean today, but not all the way clean. I mean, he'd be a tricky trial witness. I get that we're not at a trial. But ultimately, I thought I think Schiff did a good job of bringing it back. And I think Sondland brought a couple of important things to the table. Most importantly, this idea that everybody here was in the loop. I think that's really important.
Harry Litman [00:06:14] Jill, where are we here? Is it it game over on the quid pro quo idea? Or can they still credibly try to create a so-called reasonable doubt there?
Jill Wine-Banks [00:06:26] I think it is sealed in cement. I don't think there's any room for wiggle on this. And I think that Sondland was a sort of weaselly witness. He was no John Dean. He was more like Jeb Stuart Magruder. He really did not come fully clean. He kept backing off of. Well, the president wasn't there, never heard the word Biden. Every time Biden was asked about, he said no. Every time he said he said, "No, it was Giuliani who told me." So we now have new culprits. But the circumstantial evidence is more than persuasive that that's all nonsense and that the president was the ringleader, that the president was behind all this. The president knew about it. I think, as Barbara said in the beginning, the fact that he said on the tape on the record, not on the tape, but on the recording that we probably have somewhere in the world that I want to favor, though. And he specifically mentions the Bidens and he mentions Crowdstrike. That's enough. And I think we should also focus on that Crowdstrike is just as important as the Bidens. Even if the meeting was only conditioned on Crowdstrike, on the 2016 election, that's enough of a favor. That's enough of extortion, that's enough of using your official position to get something of value to you for your own political purpose. And so it doesn't matter whether the Bidens were mentioned. It's obviously more appealing if it is the Biden's as well, because everyone admits that going against your own rival is wrong. But it's also wrong to be using your power as president to get an investigation of a debunked conspiracy theory in the hopes that it will help you in your election, in your reelection.
Harry Litman [00:08:22] I mean, look, I I agree. Sort of I. I'm of two minds. If I were a prosecutor, I'd be pretty comfortable here that when the defense tried to raise the point, "Well, he never said those words to you, did he?" You'd have a total ammo to shoot back, starting with well, the things you said and I would just add to them, the fact that he asked for the announcement of the investigations showing that he didn't care in general about corruption. But just a political talking point. What Trump himself said on the White House lawn. Everything we know about Trump. The practical political question, though, you know, might be can the Jim Jordans and Devin Nunes of the world just say it and make it stick enough on Fox TV to continue to give them cover? So they're not, it's not a completely embarrassing position. So I guess I position myself a little bit between Elie and Jill on this one. They they will not abandon it. They don't have much to go on. And I think they will try to say that, you know, Sondland just doesn't know it didn't really happen. But it's a very, very unpersuasive, farfetched argument.
Jill Wine-Banks [00:09:45] I would say that they cannot without a red face, make this argument. They know that it's not true. On the other hand, they also know that the viewers of Fox News who are getting a distorted view of what happened today and who believe the president, no matter what he says and when he says, "Believe only me, listen to me. Don't believe what you see and hear with your own eyes and ears" Those people will believe them. And that's enough to keep them going. That's true.
Barb McQuade [00:10:14] Harry, I think this is one of those areas where impeachment is qualitatively different from a criminal trial.
Harry Litman [00:10:20] Yes.
Barb McQuade [00:10:20] In a criminal case sometimes, I'm sure we've all seen this, defense attorneys try to pick on one thing and say, "They're trying to have you believe, based on Gordon Sutton's testimony, that the president directed this and he himself said that he never heard the words." You know, isolating one little segment of evidence. And then, of course, the prosecutors rebuttal to that is to say, you know, I always use the analogy, a brick is not a wall. That's just one brick. You also have this other brick of the president's call where he specifically talks about the quid pro quo. You have the statements about Giuliani saying that, "I am doing this at the president's directive." All of those things combine in a trial and a judge will tell the jury to weigh all of the evidence, that ultimately that kind of cherry picking doesn't usually work in a trial. But I do think that when we are more in the court of public opinion and people pay a bit of attention, but not as much attention to the whole story. They're watching selectively, maybe Fox News a little bit here and there. All they need is to hear that one thing and I think Republicans can hammer that one thing and try to persuade the public that there's no case here. And so I do think it's a little bit different from the way that might work in court.
Harry Litman [00:11:35] Yeah, I mean, it's a really good point. First, it's a damn big brick, but it will play out. You know, though, they will get the headline, I think. Maybe not on Fox, but by and large, the headline will be Sondland says quid pro quo saw. Sondland says go everywhere. And that will, I think, be what people take away. And I want to undermine a little bit what I just said, which is to point out the question is not will 20, 25 percent always Trumpers not be persuaded? But, you know, if there's 5 percent, 7 percent of the of the Trump base that sees this now this way. That's a political crisis of the first order for the many Republican members of the House. I wanted to move to kind of a trial lawyers point. I had this distinct impression that whereas the first four hearings were well scripted and crisp. After Sondlands testimony, the Republicans really were flat footed. They they just didn't know what to do. Nunez called for a break. They seemed to really even be stalling. The electricity went out of the room. Did you guys share that impression that they needed to regroup and try to have even a provisional strategy for for how to handle him? And that and that they were they were really flummoxed?
Elie Hoenig [00:13:09] Yeah, that's absolutely my impression. I mean, they started off with Devin Nunes giving his now canned opening and then Castor's cross-examination. I mean, I was texting with a friend who said it's like if someone sent you the wrong cross-examination from the wrong side.
Harry Litman [00:13:25] What do I do now?
Elie Hoenig [00:13:26] I think we've all had that experience where someone has said, "Hey, can you take a look at this cross?" And you go: "I think you attached one from a different trial. Oh, yeah, my fault. Here's the right one." But it took them it took them really most of the morning to get their feet back under them. But they went back to really two sort of tried and true tactics. I would really call them cheap tricks that they've been doing throughout. And will continue to do throughout. And we'll give them, I think, ultimately enough cover. Which is number one, and Barb talked about this, just to dis aggregate all the evidence. Just o hold it up, one small piece at a time and say, "This individual small piece is not in and of itself a crime or impeachable offense." And the other thing is this ridiculous idea that you need an explicit spoken crime while you're doing it, while you're reading off the statutory elements of it. It's ridiculous for for reasons that I think are apparent to any logical person. But it's enough. If it's enough of a hook--and remember, this is, you're not trying to persuade 12 impartial jurors on the balance of the evidence. You're just trying to keep 53 partisan senators in the fold, or at least 33, 34 of the partisan senators in the fold. And I think it'll give them enough to do that.
Harry Litman [00:14:35] And how about this one? Oh, Trump said there's no quid pro quo. So what else do you need?
Barb McQuade [00:14:40] I think that there is, on the other hand, a very good opening and closing by Adam Schiff, where he really laid out a very nice timeline. I wish they would use graphics. I think they should start having the timeline in a graphic format, but I think his opening and his closing laid out for anyone who's really paying attention to what the narrative presented is, what the total fact picture is, all those people will be persuaded that what happened today was a direct line to the president.
Harry Litman [00:15:14] He's been superb, right? I mean, he's been a superb prosecutor, is what he's been. Hasn't he? You know, the these many closings, there's been no, there was nothing like that in either Watergate or Clinton, I think. He's really kept control of everything and come and resounded his themes. Is everyone equally impressed as I was, Schiff?
Jill Wine-Banks [00:15:36] Yes.
Barb McQuade [00:15:37] Yeah, I sure am. You know, you can tell he's a former AUSA and maybe we all have that bias that that equals good. But I think he delivers it in a relatively matter of fact, no nonsense way. You know, it's not histrionics. He's not pounding the table. He is devastating us with the facts.
Harry Litman [00:15:54] Right.
Barb McQuade [00:15:55] And that's what good prosecutors do. Let the facts sing. You don't have to throw in a lot of adjectives or adverbs used. You talk about the facts and let them have their own devastating effect. And I think that's what he's doing. He starts and ends. The day that way as a way to sort of frame what we're hearing. And I think he's been extremely effective.
Harry Litman [00:16:14] And he returns them to themes. At the end of Sondland when he returned to the theme of the harm to national security interests. He really brings it home. So I want to, let's return to Sondland for a second. And I think both Ellie and Jill thought that he remained a little squirrely. So what what's your sense? Was he a guy, you know, free of inhibitions and just gave it all up? Or was he still kind of hiding key aspects of the of the story? How did he come across to you, Barb?
Barb McQuade [00:16:49] Mostly I thought he he gave it up, but I still felt he was holding back. I mean, for one in particular, this idea that he didn't know Burisma was a pseudonym for Biden. I just find completely implausible. I don't know how you can be that involved in all of this and not understand why it is the president is so interested in--that there is an equivalency there. That part didn't strike me as plausible. He denied remembering the testimony that David Holmes shared about the conversation.
Harry Litman [00:17:21] Yes.
Barb McQuade [00:17:22] That Burisma, you know when they had that phone call in Kiev on the terrace of a restaurant that they had discussed Biden. That after the call, not the call itself, after the call when David Holmes asked him, "Doesn't doesn't the President care about Ukraine?" And Sondland said, no, "He only cares about big things like Biden." And he denied remembering that. You know, it's so difficult to prove that someone is lying when they're talking about what they do and don't remember. But that struck me as just not ringing true. I think he he gave up most of it, but not all of it. We've probably all seen cooperators like this who the first time you talked to them lie and minimize their own involvement. And then as you confront them with facts, they admit to things they feel like they have to admit to you because you're going to find them out or you already know them. But they still hold back and agree only to tell you what you think, what they think you already know. And so I do perceive he continued to hold back. And, you know, does give him a little bit of a credibility problem.
Harry Litman [00:18:22] There was an interesting moment with Mahoney where he was folksy back and forth. And and Sondland just loves that. And then all of a sudden Mahoney said, "Look, you're telling us the truth. We appreciate it. But this is your third time and we had to drag it out of you." And he quickly chastened and shut Sondland up, the kind of treatment he could have expected more of today, but got fairly soft gloves, treatment from both sides.
Elie Hoenig [00:18:50] Harry, one thing that I thought was a silver lining of today or a benefit of today is the real world. got to see what real life witnesses are really like in court. I mean, we all know almost every trial rises and falls on the back of of cooperating witnesses who are difficult and complex. But up to now, this has just been a parade of military heroes and diplomatic professionals and, you know, razor straight witnesses whose really credibility has not been questioned. People have been trying to spin their testimony, but nobody's question, I don't think the facts of anything in any serious way that Taylor or Kent or Yovanovitch have had to say, maybe to some to some extent Volker was questioned. But now the world seeing what a real world, real cooperators are like, how difficult they can be, how they can cut both ways and the sort of struggle to get them to come all the way clean. And sometimes if you get to come most of the way clean, that's good enough. If you think that what they're doing is minimizing. Never, obviously, if you think they're falsely accusing somebody, that's a different story.
Harry Litman [00:19:48] He also made it harder, I think, for a goal of Trump to really go after the career officials. He comes out of the box thinking the State Department folks. I think now the Hills and Yovanovitch and Taylors of the world are gonna have to be attacked more on the merits than on some kind of nefarious anti-Trump scheme. OK. So. So let me focus now on where the Republicans have been left. And I think what was at the heart of their dilemma and being knocked off balance early on. There is an obvious move for them now to acknowledge the facts and just say it's not enough. Trump is just a, you know, an impulsive, erratic guy. The election's coming up. But we're reliably told again and again that Trump himself insists on a full throated defense on the merits. So is it your sense that the Republicans now need to unyoke themselves from Trump and move to a different rhetorical line? Or do they continue, since all of this is motivated by, in some sense, by fear of Trump? Do they have to continue the increasingly untenable argument that the call was and the whole course of conduct were perfecto?
Barb McQuade [00:21:25] I think that Trump and it takes this strategy and I think that those who support him will follow. He follows kind of the propaganda manifesto of if I say it enough, I say it loudly enough and frequently enough, people will believe it. And, you know, the old Hitler line of the most important thing is that the lies be not small lies, but big lies. The bigger the lie, the more likely it is to be believed.
Harry Litman [00:21:50] Right.
Barb McQuade [00:21:51] And so. Even though most of us who watch this testimony today or have read about it can conclude that it's so obvious that there was a quid pro quo and that Trump was driving this. He delegated the work to Rudy Giuliani, but this is what he wanted. Despite that, I believe that Trump will persist in the mantra of no quid pro quo and that he will get some other Republicans to come along with him and do that. And we may see in the end that it's it's effective enough. All he needs is to maintain a third of the Republicans in the Senate with thinking that that's going to be effective.
Harry Litman [00:22:30] I actually think the Vegas odds are right now that even after today, he hasn't lost a single vote in the House. You know, I tried to put myself in the mindset of Republicans listening to this. And, you know, I'm I'm a Democrat, and I'm also no political pundit. But you really have to wonder if the whole party is in this wretched moment where they're where they're somehow, you know, where the Democrats are claiming the mantle of patriotism and truth. And Republicans are becoming the party of Jim Jordan and screaming grievances and such. It seems to me that the party might even be imperiled. And certainly the individual representatives are if they if they stay with him. But I'm-- I think at least preliminary indications are there's nobody budging. And they put an incredible premium on, you know, losing not a sole person in order to give kind of maximum operating room to the Republican senators. Does anyone see it differently?
Jill Wine-Banks [00:23:42] No, I see it the same way and I see it as one of the biggest threats to democracy, that we have gerrymandered districts in a way that no one has to be realistic or listen and that the party has become Trumplicans, not Republicans anymore and that they will do his bidding no matter what the facts in plain sight are. And I really do think that now the facts are so clear that when they argue the facts are clearer, that he did nothing wrong. I'm just appalled that they could even say that. So I think we're in a very serious circumstance where we need to have just one or two people come forward and say, I'm seeing this is not acceptable behavior. This a threat. They all admit when they're asked a hypothetical: "Well, if the mayor of your town paid someone to do something or withheld funding until they did a investigation of his political rival, they all say that's terrible. No, of course, that's wrong. But when it comes to the president, it's OK.
Elie Hoenig [00:24:49] I mean, Elie am I going overboard here? Am I letting my own views sort of color things too much? It really feels like picking up on what Jill just said, that they're being forced to, you know, look Americans in the eye and basically disclaim almost a notion of truth, it's so obvious. Is that overstated and then this is just fairly strong political rhetoric, but within the overall bounds of the of the normal?
Elie Hoenig [00:25:20] I agree with you that that's what they're doing. I agree with you that they're asking themselves and their constituencies to ignore truth, but I don't think they think that. I think most Republicans are with Jim Jordan and are with Ratcliff, who are just like, "Nobody said, bribery. How could it be?"
Harry Litman [00:25:40] You mean sincerely we are. That's their sincere view. You don't think they see themselves as acting in bad faith?
Elie Hoenig [00:25:44] No, I don't think that Jim Jordan and Ratcliffe and Stefaniks of the world and people who believe in them and at the Fox News of the World really feel like, "Wow, this is really bad. But we have to come up with this and that's the best we can get through." No, I think they really believe it. I think they've convinced themselves of it. And yes, it is a bit of a role reversal and abandonment by the Republicans of their traditional law and order. Patriotism. Truth matters. Personal responsibility ethic that they they were in the, you know, the 80s, 90s when I was growing up. But I also agree with you. Nobody has shaken loose from the Republican herd. I don't think anyone's going to. I think there are several who if left to their own devices, if they could vote in private, would. But I also think there's too many people. I don't think there's enough people thathave the courage to be the first one to jump out.
Harry Litman [00:26:31] Barb?
Barb McQuade [00:26:32] Yeah, you know, as we said before, it's political, right, as opposed to a legal question. And so I think they've put their political fortunes in the hands of President Trump and they're going to ride it until the absolute end. I did see that Ken Starr today had said on Fox News that he thought we were getting close to the point where some Republicans were gonna take the rest of the trip up Pennsylvania Avenue and pay the president a visit and tell him it's time to resign. I don't think we're there yet. But, you know, we're not we're not done yet. I mean, in my opinion, it's the case has been made. But I think that for Republicans who have put their political futures in his hands, they're not quite ready to to pull the plug. I think that some of the testimony we're gonna see in the coming days will be very interesting. We are going to hear from David Holmes, for example. We're also going to hear about from the OMB side about the withholding of the aid. And so it also remains to be seen whether the Democrats will expand the scope of this and want to hear from Pompeo and Mulvaney and some others. I think we're likely to get a decision by Monday. I think the judge said about on the McGahn question of whether he has to testify. Could that open the floodgates?
Harry Litman [00:27:54] Let's do a quick detour there. I think you've hit the two points I really want to focus on. I mean, you're right. We'll hear from Holmes and others, but I think they just are a little bit more of the same. And everyone, at least on this call, thinks we're between 95 percent and 100 anyway. But so Monday, everyone is pointing to that. But isn't it clear that if Judge Jackson holds that McGahn has to testify, the administration will take it right up to the to the court of appeals and there'll be some delay there?
Elie Hoenig [00:28:32] Yeah, Harry, let me say, I was actually in the courtroom covering that argument a couple weeks ago on Halloween day, actually, for CNN. We're definitely going in my vie. I'll make a prediction. I know we don't do predictions, but this judge is going to is going to compel McGahn to testify. That was very clear to me from watching it. But you're right. I mean, it's such a moving target. I mean, people need to understand just how slow the courts move. Whoever loses is absolutely taking this to the court of appeals, which for our listeners out there, you have an absolute right to do. The court of appeals has to take the case. That will take months.
Harry Litman [00:29:04] I think it could even take weeks, but it won't take hours, I think.
Jill Wine-Banks [00:29:09] Let me just say, if we can go back to the era of Watergate. I want to tell you how quickly we got decisions. It was speedy. The Supreme Court during their summer recess heard arguments and issued a decision immediately. So it is possible that the courts could see this as a life and death situation and could actually expedite it. And I also want to point out that during Watergate, Nixon, who had won a landslide in the popular vote, who really had strong support, stronger than Donald Trump has ever in his administration had, had it until he suddenly didn't. And it turned on a dime. And it's hard to predict in these days what exactly the turning point will be. I mean, who would have predicted that Harvey Weinstein would create the Me Too movement? You just don't know which thing is going to create the turning point. But there could be one thing that gets said. One momen I thought it might be his actions in Syria against the Kurds that seemed to turn Republicans against him. It could be something unrelated.
Harry Litman [00:30:21] Fair point. I want to just say one more thing about the court. So as Jill says, it's they're certainly able to do it. Now, we posit sometimes, we think about the courts in the same way we think about political actors and think of them as potentially Machiavellian. But you can imagine there's a court of appeals judge or court of appeals deciding overall: "You know, I may be for Trump, I may be against him, but I understand the grave need to move quickly." It's possible that that district, that CDC would be pushed to move quickly but quickly here, even so would be, you know, three weeks. And I think that that the Dems are are looking to wrap this up by Christmas.
Elie Hoenig [00:31:06] And look how long the district court took. I mean, three, four months.
Harry Litman [00:31:09] And she thought she was going fast.
Elie Hoenig [00:31:11] That's right.
Barb McQuade [00:31:12] Yeah. Yeah. And would you do you guys think that-- at what point does it become too late and people think that we're too close to the election to have a realistic chance at impeachment and removal?
Elie Hoenig [00:31:24] Yeah, it's a great question. I think they have to do the trial January, February. I don't think. I don't think I think anything beyond that the attention span starts to drift and it gets--I mean, I'm not a big believer that you can't do anything too close to the election. I'm a believer that anyone can do anything they're constitutionally empowered to do. Up until the swearing in. But I get it politically. I think I think you want to keep it from drifting.
Harry Litman [00:31:48] Listeners should stay right here. We've actually done I think a really interesting podcast that we're going to drop in about a week or so on just what the trial in the Senate is going to look like. And it's -- we've we've had some suggestions that McConnell will try to make it lickety split and others that he'll try to play, you know, Four Corners from the beginning to keep the six candidates whom they may be fewer after tonight, but the Democratic candidates in their seats and not on the campaign trail. All right. I want to return, though, to Barb's other point. There is a possible game changer here. It seems to me. We we have had suggestions today from Schiff and others. "You know, thank you very much for coming forward and doing your duty, Ambassador Sondland, by the way, what about Pompeo? What about Perry? What about Mulvaney? God forbid. What about Giuliani? And of course, what about Bolton? So there are, you know, people who there'll be pressure for them to come forward. And one has the view that Bolton's already one foot--you know, is already thinking about his future after Trump, his book, his reputation, his general sense as a person of principle. So are there any big additions to the to the slate? Do we see either documents or witnesses who have so far been withheld actually coming in to the hearings?
Jill Wine-Banks [00:33:30] I thought someone's comments about not having access to the documents was a pretty damning piece of information, because it's one thing for Schiff to make that argument. It's another thing for a Republican ambassador close to the president to be making that I'm being denied these documents. So I think documents might be a weak point and it may that would help every witness that you've named would be a great witness. It is a question of timing. Can they wait? Those people are not going to come in until there's a court order saying they have to. And that would definitely throw this schedule way off. So I don't know that anyone's willing to wait for them. What about the two other witnesses to the Kiev restaurant phone call? Have they been subpoenaed? Will they come in to verify? Also, can I ask you this august group a question which was today Rick Perry submitted a through his press office or I guess -- I've been misrepresented and I never mentioned any of this. And this is someone who was asked to come in, refused to come in, and now is not under oath, is getting his testimony in. I think that that was one mistake. Maybe that was made by Schiff, that he should not have accepted that. Then he should say if he wants to testify, he's welcome to come in and testify under oath. Anybody else feel that way now?
Harry Litman [00:35:00] What do you think? Why did they not subpoena? Why have they not subpoenaed? I think Pompeo. Well, of all the big shots they've only requested and it's only the subpoenas have only flown toward the non kind of cabinet level. Do you do you have a sense of their of their reasoning there?
Elie Hoenig [00:35:23] It's a great question. I don't know. I think if I was sitting in their seat, I would just have subpoenaed everybody, just blanket carpet bomb subpoenas. The only thing I can figure is maybe they felt like there were some that they'd be more comfortable taking on in court than others, just based on the necessity for that person's testimony, the provable necessity of it. But yeah, I mean, I was actually I think if I was easier said than done. Right. But if I was running the show and I had sort of infinite resources, which I don't think they do, I would have subpoenaed everybody. And I have said, good, everybody, let's go to court while we're doing this, because in other words, I would not have made the Jerry Nadler mistake, which is get slow played into oblivion by getting dragged into the courts. I would've said we're gonna still do these hearings. Exact same expedited schedule you've seen. And while this is happening, I'll have other lawyers in the DDC arguing to compel Mulvaney and Pompeo and Bolton and all the rest. But I get it. They don't have that kind of resource.
Barb McQuade [00:36:16] Elie, what do you think about this theory? Do you think that you saw what happened in the courtroom in the McGahn subpoena matter? Do you think that perhaps the Democrats saw what they saw to be a favorable judge, a judge who was buying the argument? And so they thought, let's put all our eggs in that basket, because if you serve subpoenas on other people and they file motions to quash in the court, now you've got a half dozen different judges who may or may not come to the same conclusion. And you've got to do all this piecemeal litigation if you've got a good draw like the judge in the McGahn case. You can win there and then hope to expedite the appeals through on that one decision as opposed to having, you know, being divided in Congress.
Elie Hoenig [00:36:54] That could be. I mean, I guess that's an interesting sort of longer play. I mean, I don't think the rest of the dissent, the other, if they were to stand up and go into court against Mulvaney, Pompeo, etc., I don't think it would go to the same judge that began. Because the Cooperman case, which was a subpoena from the House Intel was a different judge down the hall same day. I covered both of them. You're saying get the favorable ruling, get it affirmed by the appellate, by the court of appeals, and then use it to bludgeon everybody. I mean, I think everybody else would still fight you tooth and nail and argue that their circumstances are different than McGahn. And you'd still have to go through all that. But sure, it. Yeah. I guess if you could really expedite things and get rulings real quick, I guess that would be a smart way to go.
Barb McQuade [00:37:33] I'm not sure, you know, he's he's an interesting character. He's going to come in and talk incoherently about all kinds of things. He's such an uncontrollable witness. He doesn't care that he says things that are inconsistent with each other. But maybe I would just to try to put that on display for the world to see. Now, you run into the same issues that we've seen. He's already you know, he got a subpoena for documents and refused to comply with those. And so I think he'd have to do this court fight with him as well. So I guess he's in the same boat as people like Pompeo and Mulvaney and others. I think he is somebody who could be charged criminally.
Barb McQuade [00:38:15] And might be.
Harry Litman [00:38:16] I certainly wouldn't want to immunize him, because if you do immunize him, you could find yourself in the Oliver North situation where you might have a problem that you can't use his testimony. It could be, you know, if he were charged, that could be tainted.
Jill Wine-Banks [00:38:28] And I would, general, come a lot like Corey Lewandowski. And I don't think that serves a purpose, really. So I I'm not sure I I I'm torn between whether I would want to or whether I would risk it.
Harry Litman [00:38:43] I like the point you made about the documents. I can imagine you know them trying to hold the line. It's all unfair and just pushing through. But really, there could well be some public groundswell, they ought to have the documents. And that might force the State Department into some kind of-- I should say it's really Pompeii, right? I Yes. You know, career folks, would easily turn these over. Some of those some of those documents could be pretty good. Oh, yeah. We're in the midst of a hearing as we as we speak. There's a hearing going on. But this was obviously the big blockbuster news. We're going to have a regular sort of week recap in a couple days. But this, I think, has been extremely valuable for listeners, I can say, for me to kind of really see what's happened today and how it will potentially play out in the coming days, in particular, what strategies it portends for the Republicans. We usually end with Five Words or or Less. And I have the five words or less question today to ask of the group, namely, it goes to what I was saying at the beginning. Do they try to push back on Sondland on the on the merits or just just let it go? How aggressive are they? And so my question for a Five Words or Less around the horn is what defense will the Republicans settle on for the Sondland testimony? Barb?
Barb McQuade [00:40:30] Trump is good for business.
Harry Litman [00:40:38] Ellie?
Harry Litman [00:40:39] I want nothing. Quoting, quoting Sondland's testimony about what Trump said when when Sondlandland called him and said, what do you want, Joe?
Jill Wine-Banks [00:40:50] I would add the backup to the I want nothing. I want no quid pro quo, which is actually, I think, dangerous for them because it's almost like, why did he bring that up? The question put to him was, what do you want from Ukraine? It wasn't. Did you have a quid pro quo? It was what do you want? And he said, I don't want a quid pro quo, which means he had a guilty mind.
Harry Litman [00:41:17] That was that's really true. Is a great moment on Fox and MSNBC by talking Fed regular Maya Wiley, who, you know, compared it to a guilty child. And of course, we know he was reading his ugly big Sharpie scrawl. And an important piece of evidence that as of now, we're not going to find out is who dictated and what to say. OK. I'm going with. Never heard the actual words.
Harry Litman [00:41:45] Thank you very much to Barb, Elie and Jill, and thank you very much, listeners, for tuning into this special episode of Talking Feds Now. If you like what you've heard, please subscribe to us on Apple podcasts or wherever you get your podcasts. And please take a moment to rate and review this podcast or even tell a friend about us. 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. You can also go to Patreon dot com slash Talking Feds for some additional exclusive material that we provide to supporters there as a way of thanking them for helping defray the costs of the podcast.
Harry Litman [00:42:40] That's Patreon dot com slash Talking Feds. Submit your questions to questions at Talking Feds dot com. Whether it's for or Five Words or Fewer or general questions about the inner workings of the legal system for our sidebar segments. Thanks for tuning in. And don't worry, as long as you need answers, the Feds will keep talking.
Harry Litman [00:43:07] Talking Feds is produced by Jennie Josephson, Dave Moldovan. Anthony Lemos and Rebecca Lopatin. David Lieberman is our contributing writer, Production Assistance by Sam Trachtenberg and Sarah Philipoom. And thanks to the incredible Philip Glass, who graciously lets us use his music, Talking Feds is a production of Dalito LLC.
[00:43:32] I'm Harry Litman. See you next time.
