15 Questions for the Barr Report. TRANSCRIPT, 3/25/19, The Rachel Maddow Show.

Guests:
David Laufman
Transcript:

RACHEL MADDOW, MSNBC HOST:  I thought your stuff on the Barr report was

freaking spot on tonight. 

 

CHRIS HAYES, MSNBC HOST:  Thank you.  Appreciate that.  Thanks a lot.

 

MADDOW:  All right.  And thanks to you at home for joining us this hour.

 

In 1974, Leon Jaworski was the special prosecutor who was investigating

Watergate and related issues with the Nixon administration.  The first

special prosecutor, of course, had been Archibald Cox.  President Nixon had

to fire his way through the upper echelons of the Justice Department in

order to fire Archibald Cox, the first special prosecutor for him having

the temerity to demand that the next Nixon White House follow the law and

obey court orders and hand over material relevant to that investigation. 

 

So, Cox got fired.  Leon Jaworski was Archibald Cox`s successor and if the

Nixon White House was hoping for somebody to be intimidated by how they

got, if they were hoping for somebody more cowed, somebody who would be

less aggressive, somebody who might have felt at least implicitly

threatened by the way Archibald Cox had been ousted on direct orders from

the president, that was not what they got with Leon Jaworski.  Leon

Jaworski was just as rock ribbed, just as straightforward, just as un-

intimidated.

 

And 45 years ago this month, Leon Jaworski assembled this 62-page document,

summarizing material that the Watergate grand jury had obtained that was

relevant to understanding the president`s own conduct within the Watergate

scandal. 

 

Now, grand juries conduct their work in secret.  It is absolutely integral

and sacred to the grand jury process that the evidence they obtained in the

course of an investigation be used for one purpose and one purpose only,

which is drawing up indictments.  That`s all grand juries do.  The

information that goes to them can`t be used for any other purpose. 

 

However, when a grand jury collects information that is relevant to the

potential criminal misconduct of a sitting president of the United States,

it has long been Justice Department policy even in the Watergate era that

in that instance, the end product of the grand jury`s work can`t be an

indictment.  A sitting president can`t be indicted and so what is grand

jury supposed to do with the evidence it collects about criminal activity

by a sitting president?  Where does that information go? 

 

When a prosecutor conducts grand jury proceedings that turn up evidence

that indicates potential criminal activity by a sitting president, that

prosecutor has to figure out, right, what to do with what this grand jury

has just learned about the president`s behavior.  In Leon Jaworski`s case

in 1974, with the Watergate grand jury he had convened in 1974, what he

decided was that it just would not do for that information about the

president to drop into some black hole of presidential immunity from

prosecution.  And so, Leon Jaworski`s grand jury in March of 1974, they

obtained permission from the federal court in Washington D.C. to transmit

the evidence they had obtained to Congress.  The evidence they obtained

that was relevant to Richard Nixon`s criminal behavior as president. 

 

That 62-page document was not an indictment.  They did not try to bring an

indictment against President Nixon.  What they did is present the factual

record that they had amassed, which was a 62-page document.  It was

essentially a guide, a lot of people called it a road map to the hundreds

of documents and multiple tape recordings that grand jury obtained and

reviewed and come to see as relevant to the president`s potential criminal

actions. 

 

They packed up all that evidence.  They wrote up this terse document

summarizing that evidence, giving Congress the information they thought

Congress would need to be able to make a decision about what to do next. 

There were no recommendations as to what Congress should do.  There were no

conclusions drawn as to whether or not the president had committed crimes. 

It was just the facts, just the factual record.  And in the end, Congress

did decide to use that road map of evidence collected by the grand jury as

the basis for their impeachment articles against Richard Nixon first and

foremost on the basis of his alleged obstruction of justice. 

 

And while grand jury information really is supposed to be secret and it is

therefore a big deal that that court cleared it for that grand jury

information to be conveyed to Congress in 1964, it`s interesting.  That 62-

page document containing the grand jury information about the president, it

never leaked.  It was conveyed by the grand jury, by Jaworski`s grand jury

to Congress, to the House Judiciary Committee.  It was kept confidential by

the House Judiciary Committee as they used it to draw up the impeachment

articles against Nixon. 

 

It was never leaked to reporters.  It was never leaked to the public.  The

only reason we can look at it now 45 years later is because just within the

past year, the court decided it was finally OK to let it be seen as an

object of historical interest.  And so finally now, we can read in that

original document all these years and decades later about what evidence

there was about President Nixon obstructing justice. 

 

You know, it is remarkable to see it typed up in terse.  There he was on

February – item 41.  February 28th, 1973, there was Nixon meeting with

John Dean talking about offering presidential clemency to the Watergate

defendants and we know from the footnote there 41.1 that there was a tape

recording of that meeting and that`s how the grand jury knows that

conversation happened and what they discussed.

 

And then a few pages later, we get to item 45, which tells us that three

months after that conversation he had with John Dean about offering

clemency to the Watergate defendants, Nixon said in a public statement,

quote, at no time did I know about an offer of executive clemency for the

Watergate defendants.  And what is the source of that information?  Well,

that`s the thing the president did in public.  They source the transcript

of a Q&A session by President Nixon with “Associated Press” managing

editors. 

 

And putting out those two pieces of information in that document, that was

not Leon Jaworski or his grand jury saying, hey, hey, hey, the president

appears to be obstructing justice here.  He knowingly lied about whether or

not clemency would be used as a tool to try to cover up the Watergate

break-in.  They never spell it out like that.  They just laid out the facts

and how they knew those facts. 

 

That was Jaworski and the grand jury saying this is what we know about the

president`s behavior.  Here is the documentation that proves it.  You make

the call what to do about this.  And the you making the call in that case

was Congress. 

 

Leon Jaworski and that grand jury was not going to indict the president in

a court of law, so they got permission from the court.  It was Congress`

decision what to do with the information that they had amassed.  No

recommendations from the grand jury and from special prosecutor.  No

conclusions drawn, just the facts. 

 

That is our historical inheritance as a country, as a people in terms of

how we deal with presidential wrongdoing.  And now to celebrate the 45th

anniversary of that on-the-nose historical president for an investigation

into potential obstruction of justice by a sitting president of the United

States, now 45 years later to the month, now this time, the Trump

administration has decided they would like to handle this a little

differently this time. 

 

In a four-page letter to the Judiciary Committees in the House and Senate,

newly appointed Attorney General William Barr has written a short narrative

description of the content of the final report that has been prepared by

special counsel Robert Mueller, a final report which no one outside the

upper reaches of the Justice Department and special counsel`s office has

apparently seen. 

 

In what Barr describes as an initial review of Mueller`s report, he starts

off describing the reach and effort put into Mueller`s investigation. 

Quote: In completing his investigation, the special counsel employed 19

lawyers who are assisted by a team of approximately 40 FBI agents,

intelligence analysts, forensic accountants and other professional staff. 

The special counsel issued more than 2,800 subpoenas, executed nearly 500

search warrants, obtained more than 230 orders for communication records,

issued almost 50 orders authorizing the use of pen registers, made 13

requests to foreign governments for evidence, and interviewed approximately

500 witnesses.

 

And, boy, that`s a lot of numbers.  Certainly seemed like an we`ve list of

numbers of things.  It would be more substantively illuminating to the

American public and to Congress if we knew anything about the products of

those 2,800 subpoenas or what those 13 foreign governments turned over when

they got requests for information.  It would be more substantively helpful

to know the information obtained from these 500 witnesses. 

 

But nevertheless, I think those free-floating numbers are up there at the

top of the letter in order to make us feel assured that no stone was left

unturned.  Barr then describes what he says are the two parts of the

special counsel`s report.  The first is the special counsel`s investigation

into Russia`s interference and the 2016 U.S. presidential election from

what Barr says in the short letter, it sounds like the actual Mueller

report goes into quite a bit of detail about what Russia did to try to mess

with our election and try to install their favored candidate in the White

House. 

 

Barr then says and he repeats himself for emphasis.  He then says that,

quote, the special counsel`s investigation did not find that the Trump

campaign or anyone associated with it conspired or coordinated with Russia

in its efforts to influence the 2016 U.S. presidential election.  So,

that`s the first part of the report.  He quotes what he says is a sentence

from Mueller`s report that there was no finding that campaign or anyone

associated with it conspired or coordinated with Russia.  That`s the first

part of the report. 

 

When it comes to the second part of the report, when it comes to

obstruction of justice, one of the things Barr appears to be vaguely

hinting at here is that Mueller seems to have made some sort of detailed

factual accounting of the president`s actions that could potentially be

construed as obstruction of justice.  Barr says that Mueller made a quote

thorough factual investigation into these matters related to obstruction of

justice.  He says, quote, for each of the relevant actions, the report sets

out evidence on both sides of the question and quote leaves unresolved what

the special counsel views as difficult issues of law and fact concerning

whether the president`s actions and intent could be viewed as obstruction. 

 

More broadly, William Barr describes the special counsel`s decision to

describe the facts of his obstruction investigation without reaching any

legal conclusion – which is something that has some echoes in history. 

Factual information about the president`s behavior as it relates to

obstruction of justice.  No conclusions one way or the other as to the

criminality of those actions, just that detailed factual information handed

over without recommendation, without drawing prosecutorial conclusions. 

 

That is what Leon Jaworski and his grand jury did on March 1st, 1974 in

that document that was conveyed to the House Judiciary Committee.  And we

don`t know exactly what Robert Mueller has done because all we have is

William Barr`s short and somewhat opaque description of what he says

Mueller has done.  But what Barr seems to be indicating here is that he got

a detailed just the facts recounting of Trump`s behavior that potentially

pertains to criminal obstruction of justice. 

 

Recounting that, quote, does not conclude that the president committed a

crime but it also does not exonerate him.  And when that exact sort of

document was handed over to the Judiciary Committee in the House by Leon

Jaworski and the Watergate grand jury in 1974, the Judiciary Committee in

1974 looked at that factual record of information they had obtained from

the grand jury and special prosecutor and they decided in fact that based

on that information, they would draw up impeachment proceedings against

President Nixon primarily for obstruction of justice. 

 

This time, this factual record, this description of the president`s

behavior, it didn`t go to the House Judiciary Committee.  Instead, they got

a letter because the actual information went instead to the president`s

newly appointed attorney general who has been on the job for a month.  And

who got the job after submitting to the White House an unsolicited 19-page

memo that which claimed that the president inherently can`t obstruct

justice and Mueller can`t even investigate him for that.  Whatever

information Attorney General William Barr just received from Robert Mueller

about the president`s behavior, as it pertains to obstruction of justice,

Barr could have passed that information onto the Judiciary Committee for

them to decide what to do with the following Jaworski`s handling of the

Watergate road map in 1974 .

 

But instead, somewhat inexplicably he decided to take it upon himself to

declare definitively, yeah, you know, I looked at that stuff and I can tell

you there is no crime there.  It`s fine.  At which point, whatever you

think about the quoted conclusions about the other half of Robert Mueller`s

report, on this obstruction stuff, it`s like, what?  Where did this come

from? 

 

I mean, on what grounds are you saying that you have concluded there is no

crime here?  What facts did you consider about the president`s behavior

when arriving at that conclusion?  Mueller did provide a detailed factual

description of the president`s actions as they pertain to obstruction of

justice, including some actions that Barr says were not publicly reported. 

 

But we apparently will not be allowed to see that material and the attorney

general seems to be indicating that Congress won`t be allowed to see it,

either.  Only he gets it.  I mean, to the extent that Mueller unmasked a

factual record, some of them will be stuff the president did in public that

we can read about in the paper.  But other stuff, especially stuff that

wasn`t publicly reported, he presumably would have pursued through the

grand jury process, right, those 2,800 subpoenas, in large part, those were

likely subpoenas to provide evidence and information to the grand jury. 

 

There were interviews with hundreds of witnesses and some of those

witnesses may have been directly interviewed by the special counsel`s

office and that`s it but witnesses were also brought a lot before the grand

jury.  Attorney General William Barr now says that the end of his short

letter to the Judiciary Committee, is that while he would love to convey

Robert Mueller`s confidential report in its entirety to Congress and he is,

quote, mindful of the public interest in the matter, oh, sad trombone, he

can`t because he needs to remove all grand jury material from the report

before he allows anybody else to see any of it, including the Judiciary

Committees in Congress. 

 

And again, grand jury information rightfully is kept secret but it is for a

reason, which is that grand juries collect information for the purpose of

considering criminal indictments against criminal suspects.  When a grand

jury collected information against one person in the country who can`t be

indicted as a criminal suspect because of his job, because he`s the

president – well, does that grand jury information about the president go

into a burn box somewhere?  Or does it go in confidence to an entity that

can pursue justice and accountability for known criminal acts, even when an

indictment can`t be brought? 

 

Jaworski and the grand jury conveyed their information in secret under seal

to the Judiciary Committee in 1974.  This information obtained by Mueller`s

report apparently just goes to President Trump`s appointee and other than

that, he`s going to make sure nobody else sees it.  The surprise in William

Barr`s letter this weekend about Mueller`s findings, the big surprise was

this strange assertion, a legitimately unexpected assertion about Robert

Mueller, the special counsel, choosing to, quote, not make a traditional

prosecutorial judgment whether or not the president committed crimes

related to the obstruction of justice, and that looms the largest in the

questions raised by William Barr`s report, right? 

 

We do not have the Mueller report.  We have less than 50 words that Barr

says are quotes from the Mueller report.  Other than that, we just got

William Barr`s statement and William Barr`s statement, we can call it the

Barr report – it raises all sorts of brand-new questions we didn`t have

before about what exactly is going on here with this investigation, and

what fruits it will be allowed to bear. 

 

I mean, first and foremost, question one, the special counsel`s office,

according to Barr, determined not to make a traditional prosecutorial

judgment on obstruction of justice.  Well, why did Mueller make that

determination and was it a in fact, a choice?  Did Mueller believe that he

had a choice in that matter or did he believe he was constrained either by

his legal remit or by Justice Department policy? 

 

I mean, Barr in his report describes this decision by Mueller almost in

wonder like who knows what this Mueller guy was thinking?  He decided not

to do this part of his job, weird, right?  So that has led to whole day

plus of speculation and news reporting now as to what this crazy guy

Mueller must have been thinking when he did that. 

 

Well, all we have here is Barr`s assessment of what Mueller did.  Mueller

was reportedly not consulted on the Barr report and how Barr characterized

Mueller`s decision here, nor has the special counsel`s office committed one

way or the other on Barr`s report, since it was released.  So, we don`t

know. 

 

But if Robert Mueller believed, like Leon Jaworski, and his grand jury did

in 1974, if he believed that his role was to lay out the facts that pertain

to the president`s alleged criminal behavior without making recommendations

or drawing conclusions one way or the other as to whether or not that

behavior constituted a crime – well, that makes it all the more remarkable

that attorney general William Barr jumped in and said I know what the

answer is here, I`ll do it.  I`ll decide. 

 

So that`s question one.  Question two, did Robert Mueller expect the

attorney general to jump in and make a no prosecution announcement

regarding obstruction of justice?  Did he ask him to do that and expect him

to do that?  Or was that as much as a surprise to Robert Mueller as did the

rest of us? 

 

Third question, and it relates.  Is it proper that Attorney General William

Barr would make this kind of a public call?  Especially upon receiving no

recommendation from the prosecutor who helmed this grand jury and otherwise

conducted this investigation? 

 

Is there anything in the special counsel regulations or in Justice

Department regulations more broadly that direct the attorney general to

jump into the breach here?  And say, hey, I personally have decided after

looking at this for a day that there is definitely no crimes, I`ve decided

it`s my role to make that public pronouncement.  Was that a proper role for

the attorney general and on what basis did he make that public

pronouncement? 

 

Fourth.  One of the reasons it might not be proper for a prosecutor for any

prosecutor or for the Department of Justice more broadly to jump in and

make a pronouncement that a president appears to have committed crimes is

because of the possibility that that president could actually be indicted

and prosecuted and put on trial for those crimes after he or she has left

office.  So, let`s say like just as a lark, that our president directed his

long-time personal lawyer to commit campaign finance felonies right before

the 2016 election, and prosecutors are sending his longtime personal lawyer

to prison for that and they think they`ve got the president dead to rights

for the having to direct the commission of that felony. 

 

And prosecutors are willing, let`s say, to bring charges and mount a trial

to prove it in a court of law, but they can`t do that while the president

is serving as president, so say, they plan to do that.  They plan to try to

secure that indictment against the president starting the day he leaves

office.  That kind of scenario might be a conceivably be a reason why a

prosecutor and the why the Department of Justice more broadly would not

want to go on the record publicly declaring whether or not behavior by the

president amounts to a crime because that sort of pronouncement from a

Justice Department prosecutor or the Justice Department more broadly would

taint the deliberations of any grand jury asked to consider whether an ex

president committed a crime and should be indicted as such. 

 

So is that a reason why Robert Mueller might not have said one way or the

other whether the president`s actions constitute a criminal obstruction of

justice?  So, as to avoid essentially precluding any future prosecution of

the president for crimes that he may have committed once he leaves office? 

And if that`s why Mueller believed, if that`s why Mueller believed he was

not supposed to say one way or the other whether this was a crime, if

that`s why he believes this is just the facts, ma`am, other people should

come to their conclusion whether or not this is a crime, if that`s why

Mueller was reticent on that point to give any recommendation and pronounce

any conclusion and make any prosecutorial announcement, if that`s why

Mueller was holding back on that, did William Barr blow that up? 

 

When William Barr decided to land with two feet on one side of the question

and say as far as I can tell, there is no crime here.  I hereby proclaim no

crime.  In so doing, did he screw up any future grand jury proceedings that

Mueller might have been trying to protect? 

 

We`re only up to question four?  Hold on.  I`m just getting started. 

 

Stay with us. 

 

(COMMERCIAL BREAK)

 

MADDOW:  You knew it would be this kind of night, didn`t you?  You knew –

yes, I tried to go on vacation these last few days.  Did not work. 

 

I have questions.  I have lots of questions based on the Barr report, some

of which I think will be answered if and when we get Robert Mueller`s

report.  But in the meantime, what Attorney General William Barr has just

given to Congress really does raise a lot of questions that we never

thought we would be asking, I think, about how this investigation is being

resolved. 

 

I just round down my top four questions, all of which have to do with this

surprise in Barr`s letter about Robert Mueller reportedly not recommending

one way or the other whether Trump should be prosecuted for obstruction of

justice crimes.  We are about to have here onset a former very senior

national security official who was involved in the early stages of this

matter within the Justice Department. 

 

He is here tonight because he has some things he has to say.  Excuse me,

some things he wants to say about this part of what William Barr is doing

and how this investigation is resolving.  So, I`m eager to talk to him. 

 

Before we bring him on, I want to lay out a few more of these questions

from what William Barr has just done, a few more questions that are kind of

driving me nuts. 

 

Number five.  What does it mean when Barr says he had to consult with the

Office of Legal Counsel at the Justice Department before he made this

declaration about President Trump not committing any crimes when it came to

obstruction of justice?  Office of Legal Counsel is like the lawyer`s

office for the Justice Department.  They deal with big policy issues for

the Justice Department and big, difficult, complicated legal issues that

might not show themselves clearly and through a difficult maze. 

 

I mean, when Barr says he had to go to the Office of Legal Counsel before

deciding about whether or not the president had committed obstruction of

justice, why was that?  I mean, did he determine the president didn`t

commit any crimes when it came to obstruction of justice on the basis of

the factual descriptions Mueller gave him of President Trump`s behavior? 

Or did Barr have to go to the office of legal counsel because instead, he

base his determination that the president hadn`t committed any crimes on

his own legal theory, which he laid out to the White House months ago in

that confidential memo in which he said that a president inherently cannot

commit obstruction of justice just because he`s president of the United

States. 

 

I mean, Barr has said that he has a legal theory that a president can`t

commit obstruction.  He also says this president didn`t commit obstruction. 

Well, did he decide that based on the president`s inherent existence as

president or did he decide that based on the facts?  Is that why he needed

to talk to the OLC about this determination because it`s based on his legal

theory an esoteric one at that, or is it based on the facts of the

president`s behavior?  Question number five. 

 

Question number six, what`s going to be briefed to the intelligence

committees and the so-called Gang of Eight in Congress, congressional

leadership of houses or intelligence committees when it comes to Mueller`s

findings?  What will they get?  I mean, remember, this was partly a

criminal investigation by Robert Mueller, but it was partly a

counterintelligence investigation too.  Does the counterintelligence

investigation, the counterintelligence part of what Mueller looked into,

does that deal with the question, does that answer the question of whether

anyone in the Trump campaign or the Trump administration was under the

influence of a foreign adversary? 

 

I mean, that`s not exactly the same thing as colluding with them to

influence the 2016 election.  If you`re under the influence of a foreign

adversary, that`s not necessarily a crime, and it may not relate at all to

Russia`s interference in the 2016 election.  But if there are people in

administration or campaign who were operating under the influence of a

foreign adversary, that could be important for us to know as a people,

especially if those people operating under the influence of a foreign

adversary have got, like, really, really big jobs in the government.  It

would be good to know that. 

 

We learned not long ago that one of the open investigations Robert Mueller

inherited as part of his special counsel was an FBI counterintelligence

investigation into President Trump himself, a counterintelligence

investigation into whether or not President Trump himself was under the

influence of a foreign adversary.  Did Mueller close out that part of his

investigation, as well? 

 

Will that be briefed to congressional leadership?  Will that be briefed to

the intelligence committees?  Will that be briefed to Congress more broadly

or to us? 

 

Question number seven.  Was there a full determination?  Was there a full

investigation of Trump`s intent regarding obstruction? 

 

William Barr says the determination he came to that Trump couldn`t be

charged with obstruction of justice was based in part on the special

counsel`s conclusion that quote, the evidence does not establish that the

president was involved in an underlying crime related to Russian election

interference.  Barr says quote while not determinative, the absence of such

evidence bears upon the president`s intent with respect to obstruction. 

Well, was there a full investigation of the president`s intent when it came

to obstruction of justice? 

 

One of the ways you try to get an intent is by asking people questions, you

know, president never came in for an interview.  Does it make sense as

legal reasoning for William Barr to have cleared the president of

obstruction of justice in part on the basis of the fact that the president

wasn`t involved in an underlying crime with Russian election interference? 

Does that make since if the president hypothetically was trying to obstruct

the investigation, not because he was part of Russia`s social media efforts

or hacking efforts targeting the DNC, but instead, because of some other

thing, because he thought a full investigation of those matters might turn

up evidence of him being compromised by a foreign power or him having lied

about business dealings with a foreign power or discussed some sort of quid

pro quo with a foreign power.  Does it matter if the president had an

impetus, had a motive to obstruct justice that wasn`t specifically related

to the crime committed by the Russians? 

 

Question eight.  Were the president`s business activities and his financial

history part of this investigation as to his potential compromise by a

foreign power or some foreign entity having leverage over him?  The

chairman of the Intelligence Committee in the House has said congressional

investigators were told there were no deconfliction problems.  There was no

crossover they had to worry about with the special counsel`s office if they

wanted to look into the president`s business history and finances. 

 

That suggested to the intelligence committee that the special counsel

wasn`t looking at any of those matters when it came to investigating the

president`s potential compromise.  Well, is that true?  Did they look at

that?  Are we now allowed to know that? 

 

Question number nine.  Now that the special counsel`s office closed its

investigation, do we get to see the full unredacted memo that laid out the

scope of stuff they were authorized to investigate?

 

Question number ten, do we get to see the president`s written answers that

he submitted to the special counsel?  He didn`t do an interview but he

submitted a take-home test.  The president now says he believes this

investigation has exonerated him and he did nothing wrong, if so, he should

be pleased to show his written testimony to the public.  So far, the

president`s lawyers are indicating there is no way that will happen but

what are they afraid of? 

 

And then there`s this big-picture stuff of where we go from here.  What`s

going to be cut out of the Mueller report before we and Congress are

allowed to see it?  And when are we going to be allowed to see it?  I mean,

this is number 11.  This is probably my favorite of all these questions

because at least on this, this is one thing that unites all of us. 

 

Everybody from the super conservative right wing “Wall Street Journal”

editorial board to the New York Times editorial board on the other side, to

420 members of the House of Representatives who voted unanimously for it,

to the president himself today to tons of Republican senators who are

supportive of the president, everybody is all on one page, all in agreement

that we all now need to see not William Barr`s description of the Mueller

report but the actual Mueller report. 

 

So, that`s the big unifying question for the country.  When does that

happen?  And how much of it is going to be cut out before we`re allowed to

see it and who`s going to decide what`s going to be cut out of it before

we`re allowed to see it? 

 

Six Democratic chairs from the House tonight wrote to the Justice

Department saying they want a full and unredacted copy of the report by

next Tuesday, by a week from tomorrow.  We shall see but it`s worth noting

that the president has called for it to be fully released. 

 

Number 12.  Will Mueller testify to Congress?  Will the Justice Department

allow him to testify if Congress asks him to be there or if they subpoena

him to be there?  If the Justice Department tries to block Mueller from

testifying and answering questions about his investigation, how will that

be adjudicated and how long will it take to get a resolution? 

 

Question 13: Can Democrats in Congress get the underlying evidence from

Mueller`s investigation in addition to the Mueller report itself?  Remember

the truckloads of evidence, van loads of evidence the Ken Starr

investigation drove up to Capitol Hill to accompany that sordid written

report that the Starr investigation did about Bill Clinton?  Will this

Congress get access to the underlying evidence, too, or just the report or

worse than that, just the redacted report or worse even than that, just

William Barr`s assertions about what the report might say? 

 

Fourteen.  In real terms, not just in technical law school textbook ideal

world situation, but in real terms, does the disillusion of the special

counsel`s office now have knock-on effects for the other investigations

that have derived from their work?  It`s a long list.  There`s a lot of

people still awaiting sentencing. 

 

There`s a couple of trials that are still on deck.  There`s a whole bunch

of pending up investigations, at least publicly reported from the U.S.

attorney`s office in the Southern District of New York and in Los Angeles,

and in the Eastern District of New York and the Eastern District of

Virginia and the D.C. U.S. attorney`s office, not to mention the New York

state investigations and the inaugural committee investigations that have

started in the offices of New York state attorneys general, New Jersey

attorney general and the D.C. attorney general.  I mean, does the

disillusion of the special counsel`s office have knock-on effects of the

conduct of those investigations. 

 

Does the investigation collected by the special counsel that may relate or

help all of those other investigations, does that all get preserved and

shared and who will make those decisions?  

 

And just one last one.  While we are on the subject of ideal versus real,

while we are on the subject of pie in the sky, or real-world circumstances,

when it comes to the bottom line for this moment in American history.  When

it comes to the bottom line that we have been through a remarkable thing,

we have been through a circumstance in which a hostile foreign adversary

launched a complex and sophisticated attack to interfere with the

presidential election to get the favorite candidate into the White House

and he in fact got into the White House. 

 

When it comes to that bottom line, now that President Trump is praising

Robert Mueller as an honorable man and talking about what a great country

this is and expressing such great satisfaction with what Barr says are the

findings of Mueller`s report, does this mean that President Trump agrees

with Mueller`s findings about Russia attacking our election?  Can we expect

president Trump and the Trump White House to finally accept the underlying

factual record that Russia did, in fact, attack us?  And you don`t do that

to another country because you`re their friend? 

 

I know.  No, I`m just getting crazy.  But the Barr report has given us just

this whirlwind of questions.  I mean, the Mueller report if and when we see

it should answer most of them, but tick tock, how long do we have to wait? 

 

Stay with us.

 

(COMMERCIAL BREAK)

 

MADDOW:  Broadly speaking, the special counsel had two areas of focus:

Russian interference in the election and then whether the president

committed obstruction of justice by firing the FBI director after the

election.  Moving those out of the Justice Department chain of command over

to a special counsel was supposed to give we the American people confidence

in the investigation. 

 

On the first part, the Russia part, the attorney general says the special

counsel investigated that and reached a decision.  But why on the part that

is arguably about the Justice Department itself, why in the second part of

the investigation, why would the special counsel kick that part back to the

Justice Department`s own top brass?  Why would the attorney general take

that part for himself to decide whether or not there was criminal behavior? 

That to me makes no sense. 

 

Joining us now is a veteran of the Justice Department from the department`s

national security division.  David Laufman ran that division`s

counterintelligence and export control section under President Obama and

through the entire first year of the Trump administration. 

 

Mr. Laufman, thank you for being here.  It`s nice to see you.

 

DAVID LAUFMAN, FORMER CHIEF OF DOJ`S COUNTERINTEL & EXPORT CONTROL SECTION: 

Good to see you again. 

 

MATTHEWS:  So, first of all, let me get your gut reaction what we learned

from Attorney General William Barr? 

 

LAUFMAN:  Well, I mean, it`s important to hear the declaration, with

respect to the Russia interference part of the investigation.  He set it

out fairly declarative.  It`s hard to discern from the snippets he included

in the special counsel report whether the special counsel found no credible

evidence of collusion or coordination with the Russian authorities or

instead, it`s more likely didn`t find sufficient admissible evidence to

determine that a crime was committed. 

 

But they set it out declaratively after an exhaustive investigation.  I

have the highest admiration for Mueller and his team and if that`s what

they found, then so be it.  If they conducted it on an exhaustive

investigation and the evidence wasn`t there, then we would have that

gratitude for that piece.  As far as the obstruction piece goes –

 

MADDOW:  Before on the obstruction piece though – 

 

LAUFMAN:  OK.

 

MADDOW:  – on that point, let me ask you if they did have come to

significant findings about involvement with the Russian attack on the

election that maybe didn`t rise to the level of something they were going

to be able to prove in a court of law or if there were other important

findings in terms of people being under the influence or being compromised

by a foreign power, would you expect that that information would be briefed

to the intelligence committees or included as the finding of the

counterintelligence part of his remit? 

 

LAUFMAN:  I think it`s likely that all their counterintelligence related

findings would ultimately be briefed to pertinent officials of Congress. 

Those findings might not be included in the, quote/unquote, Mueller report

that`s the subject of the letter.  There is likely a classified addendum to

this report that may set out other findings and classified information. 

 

MADDOW:  In terms of the obstruction of justice, part of this, what`s your

reaction to what William Barr is describing? 

 

LAUFMAN:  Well, I have to say, I was shocked and remain bewildered as to

why the special counsel did not conduct the customary balancing test set

out under the principles of federal prosecution, guide book for all

prosecutors by assessing whether there was sufficient admissible evidence

to charge the president with an obstruction and if so, whether there were

considerations, policy, litigation risk, likely defenses to be presented,

risk of disclosure of classified information, a bucket of other variables

that would be applied in determining what recommendation to make the

department. 

 

Instead, we have recitation that he conducted, as we might expect, an

exhausted factual investigation not to engage in the careful balancing of

factors and we just don`t have any visibility into what his reasons were

for that. 

 

MADDOW:  Is it possible that he didn`t believe he had the option, that he

believed it was his job to layout the facts but not convey a recommendation

to not make a prosecutorial decision? 

 

LAUFMAN:  I mean, it is a possibility.  But in some respects, then why go

through the exhaustive effort of conducting one of the most probing

criminal investigations in the history of the Department of Justice and

leave it in an unresolved state.  In essence, putting at risk the work he

did by committing it to the discretion of the two most senior political

appointees in the Department of Justice, who not unexpectedly filled that

void by substituting their judgment for the judgment we expected the

special counsel to exercise. 

 

MADDOW:  Would you have expected, given what Robert Mueller did and again,

we don`t have access to it before and don`t know why he didn`t make a

prosecutorial decision here.  We don`t know if he felt constrained or if it

was a judgment call or whatever it was.  But given that that`s what he did,

that he only conveyed factual information and no recommendation, was it

proper for the attorney general, William Barr, to jump into that void and

say, well, I`ll say there is no crime here?  Was that his job? 

 

LAUFMAN:  I don`t think it was improper for Attorney General Barr and

Deputy Attorney General Rosenstein in that circumstance to under take the

work they probably expected the special counsel to do, which was render the

decision up or down on whether to recommend the charge.  It was certainly

within the scope of their responsibilities.  There`s nothing in the special

counsel regs that preclude them from doing that, to bring this matter to

some form of closure within the umbrella of Department of Justice. 

 

What Congress does is another story.  But it would have been almost equally

bizarre to leave the obstruction piece hanging out there without any kind

of resolution but again, we don`t have any visibility into the reasoning

that Barr and Rosenstein employed in determining there was insufficient

evidence and reaching policy considerations.  They`re not required to write

a report so it`s going to await further investigative journalism or

congressional investigations to peel that onion to find out what their

reasoning was in addition to the reasoning the special counsel brought in

determining not to engage in the balancing. 

 

MADDOW:  Ultimately, when this next part of this process happens and they

decide what can be – what should be extracted from the Mueller report

before it`s further conveyed to Congress, are you confident what we`re

going to get is going to answer some of these questions? 

 

LAUFMAN:  I think it will answer some of the questions. 

 

MADDOW:  Yes.

 

LAUFMAN:  I mean, it`s going to be customary for them to excise grand jury

information, that there`s a classified addendum to this report that`s going

to have to undergo a classification review.  There`s going to be limits I

think to what we see and when we see it. 

 

But over the course of time, I expect because public interest in this

matter is at the zenith, we`re likely to see more rather than less. 

 

MADDOW:  David Laufman, who ran the National Security Division`s

Counterintelligence Section under President Obama, sir, thank you very much

for being here.  It`s really good to have you here tonight.

 

LAUFMAN:  Nice to see you.  Thank you.

 

MADDOW:  All right.  More questions from the investigation and we think

some more answers just ahead.  Stay with us.

 

(COMMERCIAL BREAK)

 

MADDOW:  Joining us now is Chuck Rosenberg, former senior FBI and Justice

Department official.  Also, former U.S. attorney in the Eastern District of

Virginia. 

 

Chuck, great to have you here.  Thanks for coming on. 

 

CHUCK ROSENBERG, FORMER U.S. ATTORNEY:  My pleasure. 

 

MADDOW:  It`s nice to have David Laufman here, and you here as well.  I

know you worked together and you have a lot of mature respect there. 

 

ROSENBERG:  My old colleague, and I do certainly respect him. 

 

MADDOW:  Yes.  I want to ask for your own take, I think that`s been greeted

with the most surprise from Barr`s statement, Barr`s report as it were,

saying that the special counsel elected not to make a prosecutorial

decision on the issue of obstruction of justice, and so the attorney

general decided he`d do it instead. 

 

Does it surprise you the way it surprised David Laufman that Mueller would

not make that prosecutorial decision? 

 

ROSENBERG:  Yes, it does surprise me.  But, like David, I have the utmost

respect for Bob Mueller.  I worked for him.  So, if he didn`t do it I`m

confident he didn`t do it for a good reason.  What`s frustrating to me is I

just don`t know what that good reason is. 

 

MADDOW:  Right.  Well, I doubt it was because he was shirking the

responsibility because it seemed like a hard call.  That appears to be –

it`s frustrating to me because that Attorney General William Barr appears

to be positing that, as if there`s something wrong with Mueller, that he

didn`t want to do that hard work, it was too difficult.  That seems very

unlikely to me.

 

ROSENBERG:  It`s impossible to me. 

 

MADDOW:  And what seems, therefore, more likely, is that Mueller felt he

was constrained from being able to do that and therefore went up to the

line and laying out factual concerns, but didn`t make that a prosecutorial

declaration for a reason. 

 

ROSENBERG:  Well, if we can take Barr`s letter at its word, no pun

intended, Bob Mueller did not shirk from making a recommendation on that

first bucket, whether or not there was interference in the election and

anyone conspired with the Russians.  He did make a recommendation there. 

 

So, it seems incongruous to me.  That he would make it on that first issue,

but not on the second. 

 

MADDOW:  So, what do we make of this? 

 

ROSENBERG:  So, there`s a possibility, I don`t think this is a crazy idea,

that because you cannot charge a sitting president, maybe Mueller and his

team thought that you shouldn`t sort of attach the same stigma by saying

you would have charged that person, but for the fact that he`s a sitting

president.  Meaning, you know, we`re just going to stay away from this

issue altogether. 

 

By the way, every sitting president, one day becomes a former president,

and could conceivably be charged then, even with a new administration in

power. 

 

MADDOW:  I have one more question I want to ask you on this subject, Chuck. 

Will you stay with us? 

 

ROSENBERG:  Oh, absolutely. 

 

MADDOW:  All right.  We`ll be back with Chuck Rosenberg right after this.

 

(COMMERCIAL BREAK)

 

MADDOW:  Back with us now is former senior FBI and Justice Department

official, Chuck Rosenberg. 

 

Chuck, thank you. 

 

ROSENBERG:  My pleasure. 

 

MADDOW:  We don`t have the Mueller report.  We have Barr`s assertion of

what its principle conclusions are.  There is widespread appetite across

the United States and across the ideological spectrum that we ought to see

Mueller`s report.  In part, that may be decided alongside the question of

whether or not Mueller can testify to Congress. 

 

If the Justice Department doesn`t want to let Mueller testify, how will

that get adjudicated?  Congress sends him a subpoena, the Justice

Department says, no, he`s not testifying, who ultimately decides that? 

 

ROSENBERG:  Normally, it`s done by accommodation.  It`s done by parties in

good faith, negotiating his appearance and the terms of what he can and

cannot say.  If they actually have to litigate this thing, Rachel, that

could be a long, lengthy mess. 

 

And so, when this has happened, this sort of standoff, you carve out

portions that are acceptable and those that are off limits and off you go. 

That`s probably how it would happen. 

 

MADDOW:  Under normal circumstances. 

 

ROSENBERG:  Which is a big caveat. 

 

MADDOW:  Which is the asterisk we all live under like it`s a second sun. 

 

Chuck Rosenberg, thank you so much, my friend.  Thank you.

 

ROSENBERG:  My pleasure.

 

MADDOW:  All right.  That does it for us tonight.  We will see you again

tomorrow. 

 

Now, it`s time for “THE LAST WORD WITH LAWRENCE O`DONNELL”. 

 

Good evening, Lawrence. 

 

                                                                                                               

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY

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