15 Questions for the Barr Report. TRANSCRIPT, 3/25/19, The Rachel Maddow Show.
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-
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
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
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
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
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
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
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
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
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
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
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.
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
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
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.
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 –
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
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
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.
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.
MADDOW: Joining us now is Chuck Rosenberg, former senior FBI and Justice
Department official. Also, former U.S. attorney in the Eastern District of
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
By the way, every sitting president, one day becomes a former president,
and could conceivably be charged then, even with a new administration in
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.
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
Now, it`s time for “THE LAST WORD WITH LAWRENCE O`DONNELL”.
Good evening, Lawrence.
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protected by United States copyright law and may not be reproduced,
distributed, transmitted, displayed, published or broadcast without the
prior written permission of ASC Services II Media, LLC. You may not alter
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