Harry Litman [00:00:01]: Welcome to Talking Feds. We begin with a postscript. In our episode taped Friday afternoon, we discussed the prospect that President Trump would commute the sentence of longtime crony and dirty political trickster Roger Stone for seven felonies centering around obstructing the investigation into Trump himself. Late Friday night, the well-known witching hour for political corruption, Trump turned it from a prospect to a fact. Republican Senator Mitt Romney captured the depravity of it. 'Unprecedented historic corruption, an American president commutes the sentence of a person convicted by a jury of lying to shield that very president,' Romney tweeted. Congressman Adam Schiff, a guest in this week's show, looks more prophetic than ever. And the warnings he gave the Senate and the country in the impeachment trial: "He has done it before and he will do it again. What are the odds if he is left in office that he will continue to try to cheat? I will tell you, one hundred percent." Congressman Schiff hugely, graciously agreed to come back in on a weekend for his reaction and analysis. Thank you so much, Congressman Adam Schiff. Let me get right to it. How does this action compare as you see it, in the sort of pantheon of corrupt conduct by this president since 2016?
Adam Schiff [00:01:24]: It's another terrible body blow for our democracy, for the rule of law, and, of course, the biggest blow to our justice system, the Justice Department. I think Mitt Romney really expressed it perfectly. This is a guy who not only lied to cover up for the President, but made it very clear in his plea for a commutation that he was still withholding information to protect the President. He basically communicated with the White House via Twitter saying, 'Hey, look, I didn't turn on you. I didn't roll over on you. You owe me.' And the President feeling that he did. Granted the wish and gave him his commutation. And therefore, because with Donald Trump, it's always about Donald Trump further protects himself from anything Roger Stone may have said in the future. And so a another terrible day for American democracy, another day when we will be held up properly to the ridicule of the rest of the world. The greatest democracy on earth suffers another serious setback.
Harry Litman [00:02:19]: You know, that sounds vile and shameful. It also sounds potentially criminal. Yes? Leaving aside both the politics and any charges of partizanship, there is a whiff of a sewage smell of potential criminal conduct in a normal Department of Justice. Would an investigation be opened here?
Adam Schiff [00:02:38]: Well, in a normal department justice, I don't think this ever would have happened. And frankly, in a normal Congress, if Mitt Romney wasn't a conscience of one among the Republican lawmakers, this never would have happened. The President would have never felt that he had so successfully cowed his own party that he could get away with this. It's certainly possible that there was more to this story than meets the eye. Of course, what meets the eye is corrupt enough. But there may be more. We did learn, of course, of the White House through intermediaries, dangling pardons to Michael Cohen early on in the investigation. And so if there were more explicit offers of: 'I will protect you, I'll take care of you, I will give you a pardon or commutation if you're ever convicted.' If that was ever made explicit, then I think you have all you need for criminal prosecution. But whether we will ever learn that, given that the President continues to take steps to obstruct, is hard to say. You know, it does not only validate. I think what we proved during the trial, but it also is an eerie echo of what John Bolton said. This President really is a obstruction of justice as a way of life kind of president.
Harry Litman [00:03:45]: No kidding. And of course, with the 30 year guy like Stone, you don't need anything express. But look, I mean, what Romney goes the heart of it. People, I don't think are not even aware of the extent to which Stone they sort of lump in the rogues gallery has really the keys to the kingdom. He is the guy who since redacted unredacted comments from the Mueller investigation and just other not fully developed evidence suggest is the link from WikiLeaks to the Trump campaign, almost certainly to Trump himself. We know, he said that WikiLeaks was going to be dumping kryptonite on Hillary Clinton. What odds are that he wouldn't share with his longtime pal and patron? So this is a very important, not fully understood part of the story. And it makes it, to my mind, different in kind as a pardon. The pardons in history that people study that seem politically driven are problematic. But this seems flat out corrupt because he is the very person who has the goods, arguably on Trump himself.
Adam Schiff [00:04:56]: I'm glad that you brought us back to the facts. If you just remind your listeners, back in April, the Russians--this April of 2016, during the election year--the Russians approached the Trump campaign through a cutout, a professor of multis, professor name of sued something right out of a spy novel. And they use this intermediary to inform the Trump campaign through George Papadopoulos that they have hacked Clinton's emails. They have thousands of stolen emails and they can help the campaign through the anonymous release of these emails. So they communicate to the campaign. If you flash forward a couple of months, Donald Trump publicly calls on Russia to help his campaign with these stolen emails or to hack the emails and says they'll be richly rewarded by the press if they do. And not long after they start publishing these stolen emails through cutouts through Gustafer to D.C. leaks, but predominantly through WikiLeaks. So WikiLeaks is the publisher of the Russian hacked emails that the Russians through Professor Masood had told the Trump campaign about. And of course, the President touted these stolen emails over 100 times on the campaign trail. You could tell how much he thought the Russian help was assisting his campaign. And Roger Stone is smack dab in the middle of that.
Harry Litman [00:06:12]: He's the link, right? He's the bridge and he lies both to the Department of Justice and to Congress about it.
Adam Schiff [00:06:18]: The link basically goes from Donald Trump to Roger Stone, through Julian Assange, through Russian intermediaries, presumably to the G.R.U and others in Moscow who are orchestrating the hack and now orchestrating the dump of these documents on a nearly daily basis to damage Clinton and help elect their preferred president, Donald Trump.
Harry Litman [00:06:39]: Yeah, we will be unearthing this in the next couple of weeks, but so much is already in front of our eyes and hopefully people make the distinction. One of the things you ended your address to the senators with was a question as poignant in some way as question: 'He will continue to try to cheat until he succeeds. Then what shall you say?' And what shall they say? What is there to be said here other than to duck your head and pretend you didn't hear the question?
Adam Schiff [00:07:06]: Well, indeed, when reporters after John Bolton spoke out and published as a book, when they asked the senators, "What shall you say now that you have even more graphic evidence. Now that you have a direct conversations from someone in the room that the president was withholding this military aid to course Ukraine help him cheat? What do you say?" They literally ran away from the camera. Now, I fully expect that when Donald Trump is gone, these senators will all engage in a massive reconstruction and rebuilding of their personas during the era of Trump. They will run away from him. They will try to pretend they showed courage. They stood up to him. They didn't really agree with him. All of which, of course, will be nonsense. And I think probably more so than anything else we said during the trial. What will haunt these senators is the prediction that their names will be tied to his with a court of steel and for all of history. They will be tied to this unethical president who has done so much damage to the country. They will be asked by their children and grandchildren. Please tell me what you did when this awful man was in office to stand up to them and they will have nothing to say.
Harry Litman [00:08:17]: Congressman Schiff, they certainly can never say that of you. Thank you so much. We know there are a few investigations brewing. Of course, the pardon power makes it very hard to reverse. There may still be ways to actually get at the truth, including putting Stone in the grand jury. But but we'll see, because it seems not just justice, but truth may have really incurred a body blow. Thank you again for all you told us before. And all you're telling us now. And for joining us this weekend.
Adam Schiff [00:08:51]: It's a real pleasure. Thanks for having me.
Harry Litman [00:08:57]: Welcome to Talking Feds. A roundtable that brings together prominent former federal officials and special guests for a dynamic discussion of the most important legal and political topics of the day. I'm Harry Litman. Following the July 4th break, it was a week top heavy with events in the center of Washington, even as the virus raged to new heights in many states across the country and citizens faced chronic delays in testing. Most importantly, the Supreme Court completed its term, issuing five more opinions, including the two long awaited decisions in the cases seeking President Trump's financial records. A seven to two majority of the court refused to give the President any special authority to resist lawful process. But it remanded both cases, and it looked unlikely that the American public would be able to see the records before the election. Down the Hill, in the lower federal courts, the old sagas of Trump cronies, Roger Stone and Mike Flynn, approached different end games. Flynn's sentencing judge, Emmet Sullivan, sought full D.C. Court of Appeals review of a panel decision ordering him to dismiss the case against Flynn two years after Flynn's guilty pleas. And a different federal judge rejected Roger Stone's effort to delay his imprisonment on ground of his vulnerability to the virus. And the court ordered him to begin his sentence this week. Across the street, Jeffrey Berman, the former United States attorney for the Southern District of New York, told a panel of the House Judiciary Committee that Attorney General Bill Barr repeatedly pressured him to resign, telling him that he, Berman, otherwise would be fired and harm his career.
Harry Litman [00:10:50]: The President, meanwhile, continued to flail at his 2020 strategy of pitting white voters against the rest of the country. To break down these various skirmishes at the highest levels of American government, we have a terrific panel of guests today. First Barb McQuade, a charter Fed and the former U.S. attorney and before that, assistant U.S. attorney for the Eastern District of Michigan, now a professor from practice at the University of Michigan Law School. Welcome, as always, and thanks for being here, Barb.
Barbara McQuade [00:11:25]: Oh, thanks, Harry. Glad to be with you all.
Harry Litman [00:11:27]: Next, a returning guest, Jennifer Rubin. She's an opinion columnist for The Washington Post, where she covers politics and policy. She's an MSNBC contributor. Before joining The Post, she practiced labor and employment law for 20 years. And before that, she graduated first in her class in the famous Boalt Hall class of 1986. Welcome back. Jen.
Jennifer Rubin [00:11:50]: It's delightful to be here.
Harry Litman [00:11:51]: And we're really thrilled to welcome for the first time to Talking Feds, Adam Schiff. Adam Schiff is a 10 term congressman serving the Twenty Eighth District of California. He is the chair of the Permanent Select Committee on Intelligence and was one of five Democrats on the House Select Committee on Benghazi. He previously was the youngest member of the California state Senate. And before then, an assistant United States attorney in Los Angeles. I liken him to Clarence Darrow because like Darrow in the Scopes trial, he tried the case of this century to a rigged jury, one in heaven, but lost on earth and became a hero and prophet to millions of Americans, including judging from their writings, the other panel members here today. Congressman Adam Schiff, we are thrilled to welcome you to Talking Feds. Thanks for being here.
Adam Schiff [00:12:45]: Thank you, Harry. Great to join you.
Harry Litman [00:12:46]: All right, let's get started. The Supreme Court ended its term with five cases this week, including, most importantly, the cases involving efforts by the Congress and the Manhattan district attorney to subpoena the President's financial records. Chief Justice Roberts mustered seven votes his own, the four so-called liberals and both Trump Supreme Court appointees, Kavanaugh and Gorsuch, for a strong affirmation of the principle that the president is not above the law. It was the big, most awaited case. It was somewhat history laden and had much nuance. So everyone is still working it out. But there are a couple schools of thought. One is that at a minimum, the glass is half full. It was a solemn monarch set of results. But Trump's taxes and important financial information stay out of the public eye, which is a boon for him. And arguably it changes and augments the showing Congress will have to make to get them, if not the district attorney. The other school of thought, says resounding victory for rule of law, a repudiation of both Trump and his administration, the department's claims of overweening executive power. What are your thoughts? I think maybe all of us have written about this or tweeted about it. Who's right and why?
Jennifer Rubin [00:14:09]: Well, I'll get going first. I think you would definitely count me in the second camp. And I would also offer that you actually had nine votes on the specific point of absolute immunity in the Vantz case.
Harry Litman [00:14:21]: Right.
Jennifer Rubin [00:14:22]: And that is very much in keeping with U.S. v. Nixon. You had the entire court essentially say the president is not above the law in my book. That's a huge win. Yes. We're not going to get the documents before the election, but that's really not what the Supreme Court does. The Supreme Court always remands cases are almost always remands cases.
Harry Litman [00:14:40]: Right. There was never going to be a scenario where we were going to see those documents before November, don't you think? There's actually some people are saying we still might. I find it very unlikely.
Jennifer Rubin [00:14:50]: I would agree with that. And because of that, I think this is a smashing win. And we're always talking about those guardrails of democracy. Here we had those guardrails, very tall, very strong from the Supreme Court.
Barbara McQuade [00:15:01]: Well, I would add to Jen that I agree that you're looking at this from the long term historical perspective, it's a really important decision that says the president is not above the law, especially with regard to the Vantz case. And I think it's important to separate the two. That one's a solid win in the district attorney case. I think the thing that frustrates me a little bit less so in that one, because I think that although President Trump has some arguments he can still make in the trial court level and can still stall. Eventually, I think those records are going to get turned over. But I saw the Court showing a little less deference for Congress in the congressional subpoenas case. And remember, these are private entities that were subpoenaed, not the President himself. And so I thought that they punted a little bit in saying that although the President does not have an absolute shield here to prevent these from being turned over--and that's an important decision--it still is going to allow further delay because the court created this four or five part test at the lower courts are going to have to wrestle with to make sure that there's not some improper purpose and that the congressional committees really, really need these things. I think they're being less than deferential to a coequal branch of government. And I'm curious to hear what Congressman Schiff thinks about that. It seems to me that Congress has legislative power and it needs the information necessary to be able to legislate and to fully understand the scope of a problem and to put those roadblocks in the way, whereas they didn't do that in the Vantz case strikes me as maybe being a little extra suspicious of the political process. [86.6s]
Adam Schiff [00:16:29]: Barb, I would agree. First of all, I think that it's certainly true that this is a resounding win for the rule of law and an affirmation that no one is above the law, including the president of the United States. I have to say, we have a pretty low bar when that's a resounding victory, something that there's hundreds of years of uninterrupted jurisprudence about, you would hope that that would be the case. But nonetheless, with this court and in this time, we have to say that's a big win. But, you know, while the Court was willing to look at sort of the practicalities of litigation involving the President, there was one area practicality the Court was, I think, willfully blind to, and that is the degree to which this administration or any other in the future can delay compliance with oversight of a coequal branch of government by running out the clock endlessly in the courts. And indeed, the mechanism that the Court set up allows the administration to continue to do that. The Court was obviously aware of the labyrinthine process that those cases took to get to the Court and any number of others. We're still in court trying to get McGan to testify, I think now a year after subpoenaing him. And so this will now go back to the court, appeals back to the district court. There will be an effort in the district court by the Trump administration to draw this out as much as they can. I have no doubt that in terms of my committee's interest, the Intelligence Committee, we will prevail in the district court and I have no doubt that they will appeal once again and further run out the clock. And you're right, Barb there is a really problematic component of this new four part test that the Supreme Court enunciated. And it requires, I think, in the third of the four parts that the courts look beyond the legitimate congressional interest in oversight and question what's really behind the request. Delve into I'm sure what ultimately will be argumentation about congressional motive rather than what courts traditionally look at is what can you tell from the clear text about congressional intent? Now, this would require a whole new level of engagement by the judiciary in between two other branches of government, which I think is not only not good for the Congress, but not good for the Court, because it will enmesh the Court in disputes between the two branches on questions of purpose and and ultimately questions of motive. So I think that part of the decision is problematic. But I do think in its broadest outline, it is an affirmation of very important affirmation of the rule of law. I would also say that the delay to me is less about delay and having any of these records be public before the election. For me, the issue is do foreign powers because of any potential entanglement, financial or otherwise, with the President of the United States are they getting preferential treatment? Is is our foreign policy and our national security being bent to Russian interests or Turkish interests or Saudi interests because of the President's financial interests and the fact that we cannot get an answer to that question now for another prolonged period of time endangers the country. So to me, it's less about whether it happens before November than how much more time goes by where we may have a compromised national security because the president's finances may be entangled with other interests. You know, the last thing I'll mention is you seldom read an opinion where it so screams out to you that this was a negotiated outcome by the justice. And I think that the case would have been far less supportive of the rule of law had it not been for the more progressive justices joining the opinion and making sure that it didn't turn out the way the Trump administration and their allies and Bill Barr's Justice Department wanted to turn out.
Harry Litman [00:20:19]: I think your comments and Barb's really go to the heart of it. I want to weigh in in the Rubin camp here and just offer a couple points. First, on the delay, no doubt it's all in the President's camp and it's been not just unconscionable, but fundamentally lawless. Of course, that's not the issue in front of the Court, I think. There was some chiding in Robert's account of the history where he where he says this never happened before. He doesn't specifically rap the knuckles of the administration. But I think people know what he's talking about here and the breakdown of the political process. Second, on the point you just made, Congressman, it's so important. It's really a no brainer that Congress has important interests. The American people have interests that should be settled before the election go into whether there's some fundamental conflict that impairs the President's ability to take care to fully execute the laws and his attempt to change the narrative, to make it just about some political blood feud is really silly. The biggest thing I want to say, and this goes to both what you said and Barb said, remember--harken back to the oral argument, the lawyer for the house, who's a terrific lawyer, was remnstrated some for not offering them any kind of specific standard as they urged him for.
Harry Litman [00:21:40]: And he refused and was sweating up there on the podium. But I think he was vindicated. My fear coming out of that oral argument is they were gonna make up some phony baloney standard that, in effect, would have raised the power and changed the structure of the President vis a vis the Congress. They did this four part test. And I agree with you that the action will be in the third part. But I read it as essentially an injunction to lower courts to say the separation of powers. I see that as basically saying look at the evidence they want and does it hook up with the purpose and then be careful to assess the burdens on the President. What is missing there to me, and it's screamed volumes, is any kind of extra thumb on the scale. But I think this is basically a not quite empty injunction, but one that just says, remember, separation of powers and that's how we get to seven to two.
Jennifer Rubin [00:22:41]: Harry. I would agree with that with a couple of additional points. First, you can't go to court, which this has never happened before, that there hasn't been a resolution and not expect courts to act like courts. Courts always have tests. They always have parameters. That's what courts do. And I would agree that if you're going to come up with them, these seem relatively light. And by the way, they sort of line up with the normal requirements for a subpoena just in civil litigation. So I think in that respect, that four point test is perhaps not unusual and it's very indicative of what courts do normally. The second, I would say is that part of the remedy for these situations has to come hopefully in a new Congress in which other remedies are utilized so as not to repeat this problem. There are legislative fixes that obviously aren't available now because the Republican Senate is uninterested in this and the President would veto it in any case. But there is some self-help that the next Congress can engage in.
Harry Litman [00:23:47]: You have in mind the power of the purse. I mean, they're pretty severe or you are actually dusting off inherent contempt. What are you thinking?
Jennifer Rubin [00:23:55]: Somthing in the contempt realm, Yes, indeed. And if not inherent contempt, at least a expedited procedure or procedure that allows for enforcement, perhaps by some other means than the US attorney who in this case was beholden to the administration?
Adam Schiff [00:24:13]: I would say both to Harry and Jennifer. First of all, I like your optimism. When I read Roberts comments about how this is unprecedented in the Congress and administration of always work things out. I read that as sort of a pox on both houses rather than we all see what's going on here the President has said we're going to fight all subpoenas. That's what's truly unprecedented here. So I didn't read it quite the same way that you did. But I like your interpretation better. I think that the practical reality, though, of what they set up as as innocuous seeming and sounding as it may be in this four part test is: back in the district court you're going to have the Trump administration or any other administration making a whole new series of arguments about illicit motive and citing anything they want to site. It's going to look like the eight page screed from the White House counsel in answer to congressional subpoenas about how this is all, you know, presidential harassment. And and so it is inviting the Court into that debate. And rather than saying no where where Congress has ostensibly legitimate legislative purpose and it's within the scope of that purpose, we are not going to insert ourselves into that debate. They have now inserted themselves into that debate. And I think they may rue the day that they did. But I also believe absolutely, as Jennifer was saying, there are remedies that the Congress has and will have when this president is gone. And frankly, obviously, I'm very hopeful that we'll flip the Senate. But I think there'll be bipartisan support for any number of reforms. I've been working on a package of what I have been, for lack of a better description, referring to as our own post Watergate reforms. And I frankly put it very much at the top of the list, expedited court process for congressional subpoenas.
Barbara McQuade [00:25:58] I completely agree with you, Congressman Schiff. That has been the Trump game all along is just delay, delay, delay. And they've been quite successful at it. What about certainly be a long term solution, but setting up a specialized court? We have tax court, immigration court, FISA court, patent court. What about a special court that handles interbranch disputes, specialized docket? Maybe you draw them from others already sitting judges who will hear these and hear them on an expedited basis. Would that be a way to change the game?
Adam Schiff [00:26:24]: You know, I would certainly be open to exploring all alternatives, including that one. If we were to move in that direction, which would be, I think, a bit more complicated and therefore perhaps more controversial in Congress, than we'd have to pay very careful attention to who gets appointed to that court so that there isn't an effort with each administration to stack that court knowing of the importance of those decisions, vis a vis of a relationship between two of the branches. But I am open to any and all good ideas for how we can validate or oversight authority because so much hangs on that. And this was obviously a point we emphasized during the impeachment trial. But the idea that an administration, any administration can fundamentally thwart any oversight by a coequal branch of government through sheer delay is just completely destructive of that check and balance in our system. One of the other vulnerabilities that we've discovered, and it's one that makes all of these problems that much more severe, is when one of the two parties becomes a cult of personality around the President is unwilling to defend its own institution. The most profound power that we have is the power of the purse, which was mentioned earlier. Well, the Republicans in Congress were willing to give up that power when it came to funding the wall because they were unwilling to stand up to the President even to defend their most important prerogative. So it's hard to have the system work when one party in Congress so completely abdicates.
Jennifer Rubin [00:27:48]: I would want to add to the congressman's point a great deal depends upon what we do after Trump is gone. [00:27:57]Part of the problem here was presidents don't delay courts on their own. They rely on the Justice Department. They rely on the attorney general. And I think in our aftermath report and actions, we need to place a greater burden on people in the Justice Department to uphold their professional obligations as officers of the court and the way in which we reform the Justice Department and the rules we lay down and the obligations we make clear not to behave in ways that are really antithetical to their obligations as lawyers. And I would maintain that if we can come up with some Watergate ish reforms, I'd be fascinated to hear what the congressman has in mind that we will address part of this abuse of the system.
Adam Schiff [00:28:49]: You know, Jennifer, I am so completely and wholeheartedly [00:28:52]agree and any of us watching what Bill Bari's done to the apartment. It's just heartbreaking to see the apartment that we venerate and love and respect brought so low, at least in terms of its leadership and what that means in courtrooms around the country and what that means in terms of our understanding of our own system of justice and others watching us from around the world. The hardest thing to be very interested in Barb's thoughts on this, the hardest thing of the post Watergate package has been reforms to strengthen the independence of the Justice Department. A lot of the other reforms are, frankly, very easy to draft and conceptualize, and they involve us. We talked about expedited court process. They involve disincentives to abuse the pardon power. They involve protection for inspectors general and enforcement mechanisms for the emoluments clause. And the list goes on and on. But how do we protect the independence of the Justice Department? How do we make sure that that we don't have further presidential meddling in the sentencing of cronies and the dismissal of cases against other cronies? How do we legislate those guardrails that were put in place post Watergate but still put in place largely through norms, the strong establishment of norms which are now gone?
Barbara McQuade [00:30:05]: Yeah, I think it's it's difficult to do things within the constitutional structure. But William Barr has pushed this idea of the unitary executive and anything he believes he can do, he does do. And there's a big difference between what the Justice Department can do and what it should do. And so I would like to see an attorney general who pledges to do things independent of the president. Things like limiting communications between the White House and the Justice Department when it comes to specific cases. Certainly, the Justice Department should take its priorities from the President as part of his administration. But in terms of micromanaging individual cases, the involvement that we saw from Attorney General William Barr on the stone case in the Flynn case after tweets from the President just gives it the very least the perception that the president is asking the Department of Justice to do his bidding to protect his allies. I'd like to see more teeth put into the way we handle special counsels or independent counsels or whatever we want to call that. [57.6s] And I think the last thing I would suggest, which is slightly different from the question you posed to me, Congressman Schiff, but I wonder what your thoughts are on whether there is the will in Congress to pursue whatever comes of the McGann's subpoena and some of the things you might learn if you eventually get these records, even if it's after Election Day and even if it's if President Trump should lose the election. Is there value in pursuing impeachment, if not to remove the president, but to bar him from ever becoming president again? That is preventing a situation where he can run for president in 2024.
Adam Schiff [00:31:36]: With respect to something you mentioned about our Justice Department, one of the concerns I have with Bob Barr is that the worst is yet to come. I mean, he's got a terrible, destructive track record as it is, and it may get worse in the coming days. But what we have seen largely is Barr's intervention to protect the President. Barr's misrepresentation of Mueller's work, Barr's intervention in cases to help Trump cronies like Stone and Flynn and others. What we have not yet had full visibility on is not Barr's use of the shield to protect corruption writ large of his boss, Donald Trump, but the sort how he may be using the power of the Justice Department through Durham or others to go after the President's enemies. And in many respects, that is a far greater, more serious abuse of the power of the Justice Department than his use of the shield. And so I continue to be concerned with a president who's tweeting about how, you know, Obama and Biden should go to prison. That Bill Barr may be preparing the use of the sword in a politicized and dangerous and desperate way. In terms of the continuation of the cases with respect to McGann again, I think the court ruling that there is no absolute immunity certainly strengthens our case to compel McGann to testify. And I think we should continue to prosecute that case in terms of getting his testimony. I think it also has a bearing on John Bolton's potential testimony and in terms of postelection whether Trump wins or loses. I think there is enormous value and importance in Congress vindicating and validating its oversight responsibilities, however long it may take. So that the truth ultimately comes out in all of its ugliness as it pertains to Trump and the people around him in terms of impeachment as a remedy to prevent a subsequent term. That is a question for another day that I don't feel I should weigh in on. But I do think that we need to pursue the litigation that we have to this point. We should not allow the clock to be run out. And however untimely it may be, thanks to the tactics of the administration. And lackadaisical pace of the courts, we should pursue it until we get our final resolution.
Harry Litman [00:33:59]: A very justifiable and even foreboding concerned. All right. The courts dropped the huge boulder of the opinion and the repercussions will be playing out for months and years. I'd like take a couple minutes. The point you just made, Congressman, about Comey that happened in a tweet Friday morning from the president in the context of was he going to pardon Roger Stone? So just quickly, we have some interesting developments. We're nearing kind of an end game for both Roger Stone and Michael Flynn, both of them in their long and torturous battles with the department and their efforts to curry favor with Trump. So I just want to canvass the group a little. So Stone, just this morning, Trump confirmed he is considering a pardon for him. I'll be looking at it. He was very unfairly treated and he had previously tweeted, well, he can sleep well at night. Now, remember, he is convicted on all charges last November for impeding congressional and FBI investigations for witness tampering. He's looking at 40 months. You know, can a weakened Trump really get away with. The rubber is about to hit the road right at his report date is coming this week. Does Trump really have the political capital in his weakened state to pull the trigger on a pardon?
Jennifer Rubin [00:35:23]: I think he probably wants to. And his perception of his own political power and the rest of the country's perception are two different things. And I might even flip it as he feels the sand running out of the glass, he may think this is his last gasp and he better go around fixing as many messes as he possibly can. Roger Stone remains a very potent figure. He, of course, was the connection to WikiLeaks.
Harry Litman [00:35:47]: Right I mean, historically, he could kill him. Right. In terms of that, in terms of his historical verdict anyway.
Barbara McQuade [00:35:53]: Yeah, I think I've been President Trump will wait until the 11th hour to see if he really needs to play this card. But I think if he does, he will. Roger Stone knows where the bodies are buried. There's an awful lot of information in the Mueller report that has been recently redacted that suggests that Roger Stone was acting as an intermediary between the campaign and WikiLeaks for spreading this Russian disinformation. And so I think that he's a very important ally to the president. I also think that to the president's base and to the Fox News viewers who believe that this is all a political witch hunt, he can spin this that he's a hero in protecting a fellow hero. And so I think that he would do it undaunted. You know, it's just one more of the outrageous things that President Trump does to continue this narrative of rewriting history.
Adam Schiff [00:36:34]: You don't say to Harry a couple of things. First, in terms of whether he's strong enough or too weak to get away with it, he's not so weak that if he were to pardon Roger Stone tomorrow, you would hear more than a whimper out of a few Republican senators.
Harry Litman [00:36:50]: Right. They're stuck, aren't they?
Adam Schiff [00:36:52]: They will run away from the camera when they're asked, what do they think about pardoning someone who lied to Congress, someone who intimidated witnesses and who is being pardoned by the president that he was lying for and lying on behalf of. So he's still has enough of a hold on their base that he can get away with doing it with with minimal defection from the Republicans. And that's what makes it feasible for him. The other thing I wouldn't underestimate is the degree to which Donald Trump things the best way, maybe the only way to distract from his cataclysmic handling of a pandemic that's killed over one hundred thirty thousand Americans. His only way to change the topic is to engage in further scandalous behavior. And he would rather the country was talking about his pardoning of Roger Stone and was talking about how another five hundred thousand people died that day, in significant part because of the incompetence and lack of leadership during this health crisis by the president of the United States. So I wouldn't discount the degree to which he thinks the controversy is actually a plus for him and far from behooving him to weight of that. There's no time like the present to distract from his abysmal handling of this crisis that has taken so many lives.
Harry Litman [00:38:08]: It's a great point. More and more like even Fox News had difficulty trying to defend certain points on the virus. But if the subject changes to the old tried and true deep state Comey struck and page those old standbys, et cetera, you know, maybe that's where he wants to be.
Adam Schiff [00:38:26]: And this is where the president has his comfort zone, this anti science for a president to use everything through the prism of what helps him or hurts him. He doesn't care about Roger Stone. He doesn't care of Paul Manafort goes to jail. It's all what does it mean for him? And so I think as Jennifer and Barbara pointing out, benefits are he keeps Roger Stone silent and on his side, he distracts from his is abysmal handling of the virus and in terms of the any blowback you might get, the GOP members of the House and Senate have demonstrated an endless capacity for debasing themselves at the behest of this president. There was some interesting press reporting that McConnell has given the president until Labor Day to turn his numbers around or otherwise people are going to be jumping ship. That in itself may be optimistic, but I do think if there's anything that causes the Republicans to find their voice, it will not be conscience. It will be elective imperative.
Harry Litman [00:39:26]: All right. It's time now for our sidebar when we take a moment to explain some of the terms and relationship or questions that are foundational to events in the news, but may not be brought up or explained on shows in general. And I'm personally really pleased. This is something I've wanted to do since we started Talking Feds was to get Rhett Miller, the lead singer of the rock band Old 97s, as he describes them, as loud folk or alternative country. But they are literate and fun and a great live band. If people don't know them, I really recommend starting maybe with Champagne, Illinois, or Big Brown Eyes. He also has the credential when asked when he wanted his sidebar to be played of saying "I love Adam Schiff!" So requesting today he's got an interesting question to educate us on, which is we know this won't happen because of Joe Biden's pledge. But could Joe Biden name Barack Obama as his running mate?
Rhett Miller [00:40:28]: Could Joe Biden name Barack Obama as his running mate? The presumptive Democratic nominee, Joe Biden, has said that he will select a woman as his running mate. But there has been a fair bit of discussion about whether Biden could choose former President Obama as his choice for vice president. Would a Biden-Obama ticket be kosher under the Constitution? Surprisingly, the answer is probably yes. Article two of the Constitution sets out the main qualifications to serve as president. Natural born citizen or citizen during ratification. At least 35 year old lived within the United States for 14 years. The phrasing of this rule is important. The Constitution says no person except for one meeting these qualifications shall be eligible to the office of President. In its original form, the Constitution did not identify any qualifications for vice president. It didn't need to. Originally, the vice president was simply the runner up in the presidential election. So the individual would have to meet the requirements to be president after the elections of 1796 and 1800, the 12th Amendment was ratified to permit separate election of president and vice president. The amendment also identifies who is eligible to serve as vice president. Or rather, like Article two, it states who is not eligible. No person constitutionally ineligible to the office of President shall be eligible to that a vice president of the United States. Now fast forward to 1947. In the wake of FDR's death shortly after the start of his fourth term, the 22nd Amendment was passed, limiting individuals from being elected president more than twice. However, look carefully how the text of the amendment draws a distinction between being elected president and holding the office of the president or acting as president. No person shall be elected to the office of the president more than twice, and no person who has held the office of President or acted as president for more than two years of a term to which some other person was elected president shall be elected to the office of the president more than once. So it is clear that under the 22nd Amendment, Obama cannot be elected to the office of the President again. But it is also clear that he can hold the office of the President or act as president during a term to which some other person was elected president. Now there is a question as to whether Obama would be limited to holding the office of president for less than two years. But it is clear that he is not ineligible to the office. This provision has never been tested. In 2015, Hillary Clinton joked that she had looked into having Bill Clinton run as her vice president. For Talking Feds, I'm a Rhett Miller.
Harry Litman [00:43:47]: Thank you so much, Rhett Miller. Rhett's new album or the old 97 new album, Twelth--their 12th album drops--in August. August 21st, 2020. He's currently doing four shows a week on stageit. com. And as I say, I can't recommend the band enough. All right. I have to serve this up to everybody--
Adam Schiff [00:44:10]: I think he's asking about the wrong Obama. What about Michelle?
Jennifer Rubin [00:44:14]: Yes, yes!
Harry Litman [00:44:16]: OK. So let's move now to Jeffrey Berman. The whole crazey drama played out a couple weeks ago. Barr says he is resigning. He says he's not. And the sort of stand off that resulted in Audrey Strauss as opposed to Jay Clayton being installed. He testified yesterday before a panel, at least not in public, of the Judiciary Committee. He had testimony that Bill Barr had urged him repeatedly to resign, said otherwise he would be fired and that would be bad for his career. Let me just start there. Obviously, no dearth particulars in the long bill of particulars, an indictment against Bill Barr. But was this really so bad they wanted him out? And we'll move maybe move to why that was in a moment. But they said, hey, you got to resign or else will fire you. And by the way, that won't be so good for your career. It's not exactly a gun to the head, is it? Or not exactly outlandish for an attorney general or or was that really undue political pressure?
Jennifer Rubin [00:45:27]: I think we have to look a little bit more at the motives. Was this an attempt, another attempt to foreclose ongoing investigations into the President's wrongdoing? And if so, that is obstruction of justice, in my book. Forget the unit executive, you can't go around threatening or actually kicking out the investigators who are attempting to investigate the President. That's what we were talking about during the entire Mueller investigation. [25.3s]
Harry Litman [00:45:53]: And the FDNY is where all the big investigations involving Trump now are correct.
Jennifer Rubin [00:45:58]: So I think if that's the case and there will be evidence of that, that will be discoverable. If not now, then after company company's office, that is serious stuff and that should be pursued to the fullest extent of the law. [13.1s]
Adam Schiff [00:46:12]: I think Jennifer is absolutely right. What makes it significant are the cases that that office is handling and what makes it very dubious in terms of their motivations is several things. First, I think Berman testified that Barr had no problem with his service, that it wasn't like he had poorly performed as the U.S. attorney. There was no problem with the merits of his work. Second, Barr lied about him resigning. Why would you lie about that if you were engaged in something completely above board? Third, they want to bring in this guy with no criminal experience. And why is it so important that they do that in such a rushed manner? Because he's a golfing buddy of the President? Because they want to keep him on their team, whatever that means? That doesn't quite pass the smell test either. And then you you add Berman's own cryptic statement in his resignation letter about the importance of the ongoing investigations him wanting to see them through. Why is he concerned that that would not be the case? All of these things, Barr's own track record of interfering to protect the President, make this smell bad. The discrete act of saying resign or you're fired and being fired wouldn't help your career. I don't think we can look at that in isolation. I think we have to look at this in the bigger picture. And Barr has long since disqualified himself for being given the benefit of any doubt.
Barbara McQuade [00:47:37]: I would just add that I think if you want to see what's going on here, you need look no further than the U.S. attorney's office in the District of Columbia. We saw a very similar thing play out there. And I would love to hear the testimony of Jesse Liu, the former U.S. attorney in D.C. She similarly was run out. They dangled another position for her in the Treasury Department, which was ultimately taken away, that the offer was taken away. So she was left out in the cold, but with her out of the way, William Barr inserted a close aide as the acting U.S. attorney who very quickly reduced the sentencing recommendation for Roger Stone and moved to dismiss the case against Michael Flynn. And then after he did that dirty work, he was in place for three months. He moved on and someone else moved in. And so did Barr have something similar in mind in the southern district of New York? He had a very unusual move. The acting U.S. attorney was going to be the U.S. attorney in New Jersey and not the normal progression of things, which would be the first assistant U.S. attorney, Audrey Strauss, there in the southern district of New York. I think by standing strong against bullying tactics, Jeff Berman was able to see that Audrey Strauss did get that job to safeguard some of those investigations. And so I think Barr's motives are very suspect in light of what we have seen play out in D.C. And it could very well be that he was playing similar games in New York.
Adam Schiff [00:48:56]: That's such an important point. Why the rush to make sure that Strauss didn't take over the office? What was the urgency there? If this was really, as Barr has represented, just about finding a place for this golfing buddy, the president, that they want to keep on their team, there wouldn't be that urgency to effectively remove who would normally be the acting U.S. attorney. So just another reason for alarm over what Bill Barr may have had in mind.
Harry Litman [00:49:25]: Yeah, I you know, I think this all goes to the heart of it. I asked the devil's advocate question, but two things speak volumes to me. What the congressman cited as the final sentence in Berman's pushback against Barr talking about the investigations. And then Jay Clayton, who by many accounts is a competent person. But having someone with no prosecutorial experience, that just seems to me like an insurance policy and a friend, a good buddy, that when when things get really dicey or some announcement is in the works, you can much more easily roll him than roll-- even Jeffrey Berman is no, he's a Trump contributor and was on his side. But as the professional head of that office, it would be much, much harder to try to push back on him. All right, man, I feel we could go for many more hours on these and other topics. We are out of time. And to our very final feature, of five words or fewer, which I'm going to alter just a little bit because it's something we already talked about. I think we can cut to the chase. I'm going to change the five words or fewer to one word. It's a question that comes to us from Matthew Har And the question is, will Roger Stone serve a day in prison? One word answer, please, from each Fed. Barb, can we start with you?
Barbara McQuade [00:50:47]: Nope.
Harry Litman [00:50:49]: Jenn?
Jennifer Rubin [00:50:49]: Nope.
Harry Litman [00:50:50]: Congressman?
Adam Schiff [00:50:50]: Hopefully.
Harry Litman [00:50:53]: Nice hedge there. And I'm going with. Yes.
Harry Litman [00:51:04]: Thank you very much to Barb, Jen and Congressman Adam Schiff, and thank you very much, 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. You can follow us on Twitter @TalkingFedsPod to find out about future episodes and other fads related content. You can check us out on the Web Talking Feds.com, where we have full episode transcripts. And you can look to see our latest offerings on Patrie on where we post discussions about special topics exclusively for supporters. And these aren't outtakes or simply ad-free episodes, though we do have them there, but really original one on one discussions with national experts. Just in the last few days, we've posted discussions with the attorney general of Colorado about the faithless electors case in the Supreme Court, which he personally argued. About Ghislaine Maxwell, the Jeffrey Epstein consort, and what awaits her in the southern district of New York with an SDNY well-known alumna. And with Rick Pildes, maybe the nation's premier election law expert on voting rights and the virus. So there's really a wealth of great stuff there. Something like 80 discussions in all. You can go look at it to see what they are and then decide if you'd like to subscribe. OK. Submit your questions to questions@talkingfeds.com, whether it's for 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. Talking Feds is produced by Jennifer Bassett and Rebecca Lowe Patton. Our editor is Justin Wight. david Lieberman and Rosie Don Griffin are contributing writers. Production assistantance by Ayo Osobamiro and Sam Trachtenberg. Consulting producer Andrea carla Michaels, thanks very much to Rhett Miller of the fabulous Old 97ss for explaining whether Joe Biden could pick Barack Obama to be his running mate. And our gratitude, as always, to the amazing Philip Glass, who graciously lets us use his music Talking Feds, a production of Deledio LLC. I'm Harry Litman. See you next time.
