Barr repeats vow to be transparent. TRANSCRIPT: 4/9/19. The Rachel Maddow Show.
CHRIS HAYES, MSNBC HOST: That`s ALL IN for this evening.
“THE RACHEL MADDOW SHOW” starts right now.
Good evening, Rachel.
RACHEL MADDOW, MSNBC HOST: You can`t spring that on me.
HAYES: It was a delightful surprise. It was fantastic piece of work and I
was very happy to see it recognized.
MADDOW: It means the world coming from you. We are totally flummoxed that
it happened. It`s very nice. And now, you have flummoxed me in the
immediate sense by saying it right at the start of the show. Thanks a
lotm, my friend.
HAYES: You bet.
MADDOW: Thanks. I wasn`t going to bring that up. It`s very exciting.
Let`s never speak of that again.
All right. The interview started at 10:00 a.m. It ended at 2:00 p.m. So,
it was a four-hour thing all in all. They were pretty much almost done.
They`re well into that final hour, when they took one last recess. And
after that last recess, there was one last round of questions.
And here`s how it started. Quote: Back on the record. It is 1:37 p.m. I
am Susanne Grooms. The witness, former FBI general counsel Jim Baker says
Question, can you explain what the atmosphere was like at the FBI after the
president fired James Comey? Answer, Jim Baker: I`m not sure that I can
reduce it to one or two words. It doesn`t, I guess, horrible atmosphere.
It was shock, dismay, confusion, at least initially that night, and then –
and then a sense of resolve that came pretty quickly as well to continue
the FBI`s mission. And as I was saying earlier to the congressman, make
sure that we were all adhering to our oaths to the Constitution and
executing our responsibilities.
Question, was there a concern at the FBI the president had fired Director
Comey because he was trying to obstruct the FBI`s investigation into the
Russia matter? Answer, Jim Baker, yes. Question, was that a concern that
you had? Answer, Jim Baker, yes.
Question, was that concern shared by others? Answer, I think so, yes.
Question, who, who else? Answer, the leadership of the FBI. So the acting
director – I can`t remember if we appointed an acting deputy director
immediately. The heads of the national security opera apparatus, national
security folks in the FBI. The people who are aware of the underlying
investigation and who had been focused on it.
Question: was there a question of opening a case into the obstructions of
justice matter? Answer, I am looking at the FBI – meaning I`m looking at
the FBI lawyer who was there in that room to see if you have any objection
to me answering this question in this format. At which point Ms. Redacted,
the FBI lawyer says, could you restate your question, please? The
investigator says, sure. Was there discussion about opening a case to
investigate the matter? Ms. Redacted, the FBI lawyer, says, OK. So, that
would call for a yes or no response. If we go further into that we may
have to stop the witness from answering.
Answer from Jim Baker, former FBI general counsel. He says “yes.” So,
yes, there was concern by me, the FBI broadly, head of the FBI, by the
national security experts within the FBI, by everybody involved in the
underlying investigation that involved the president and his campaign at
that point. Yes, he says, there were concerns that the president was
committing obstruction of justice to try to block the FBI`s investigation
into the Russia case, and, yes, yes, he says, a case was opened into the
president`s potential obstruction. Yes.
The man testifying there was Jim Baker, former general counsel in the FBI.
Before he was general counsel, a top lawyer in the FBI, he was a top
official at the U.S. Justice Department. During 9/11, he was the head of
the office of intelligence policy and review at the Justice Department
which means that in the aftermath of 9/11 he was the lead official at the
U.S. Justice Department for counterterrorism and counterintelligence in the
U.S. government. He is a very senior, very experienced, very serious
national security official.
Today, we learned that with that background, Jim Baker and all the other
senior national security officials at the FBI were very concerned that the
president appeared to be taking action including firing the FBI director
specifically to obstruct the FBI`s investigation into the Russia matter.
Now, the reason we know that, the reason we have that, that Q&A, that
transcript, is because the Republican members of the Judiciary Committee in
the House released this transcript today of Jim Baker testifying last year
to their committee behind closed doors. And I`m not sure why they released
this now, why they think this helps their case. That nobody should worry
about the Russia thing.
I mean, among other things, this transcript they released today includes
this very, very, very experienced national security officer official
expressing just how worrying it was, what the FBI was investigating, and
what the FBI was finding out, about Donald Trump and his campaign. The
questioner here in this part of the transcript is actually a member of
Congress. It`s Jamie Raskin, Democratic congressman from Maryland.
So here`s the question from Congressman Raskin. Quote: When you first
learned about a tip that the Russian government could be coordinating with
the Trump campaign, what was your reaction to that, were you concerned or
alarmed by that? Answer, Jim Baker, I was alarmed by that, yes.
Question: as the evidence developed to the point where the FBI launched an
official investigation, did your thinking change, had you grown more
alarmed than concerned or less so? Answer, Jim Baker, I guess I grew more
alarmed over time.
Question, how often does the FBI investigate a potential coordination
between a presidential campaign in our country and a foreign adversary? Is
that a common thing? Answer, Jim Baker, I think this is the first instance
that I`m aware of.
Question, and what was your estimate of the national security risk involved
in such potential coordination? How important was the case? Answer, Jim
Baker, I view the case as very important.
So, he`s saying this was a very important case in national security terms.
Nothing like this had ever happened before, had ever even been investigated
before involving an American presidential campaign. He said what the FBI
was investigating was concerning from the get-go, from the very beginning,
it only became more concerning over time as they pursued their
And when the FBI director was fired by the president in the midst of that
FBI investigation, there was serious concern among the most senior national
security officials in the country that the president was doing that to
obstruct. To use his power as president to block that very serious FBI
investigation. And we know that now because this transcript was just
It is now – it was three Fridays ago that special counsel Robert Mueller
submitted his report on the findings of his investigation into the Russian
attack on our election, potential American complicity in that attack, and
the question of whether or not anybody tries to on instruct that
investigation. On this issue of obstruction, Attorney General William Barr
so far hasn`t released anything from Mueller`s report, Mueller`s evidence,
Mueller`s findings, except this description.
After making a thorough factual investigation into these matters, the
special counsel considered whether to evaluate the conduct over department
standards governing prosecution and declination decisions but ultimately
determined not to make a traditional prosecutorial judgment. Special
counsel, therefore, did not draw a conclusion one way or another as to
whether the examined conduct constituted obstructed. The special counsel
states that while this report does not conclude that the president
committed a crime, it also does not exonerate him.
That`s all the attorney general released on the obstruction issue. We
don`t know what Robert Mueller found on obstruction. We don`t know what
the facts were that he uncovered. We don`t know why what Mueller found
doesn`t exonerate the president in Mueller`s words.
Nor do we know why Mueller didn`t make a traditional prosecutorial judgment
about obstruction. I mean, that`s – that`s all the more striking and
interesting in light of this news we just got today act how freaked out the
whole national security law enforcement apparatus in this country was about
the president potentially obstructing the Russia investigation, by among
other things canning the head of the FBI. I mean, we do know that Barr 2
1/2 weeks ago jumped right in, himself, anyway, and proclaimed his own
instant finding that the president definitely shouldn`t be prosecuted for
obstruction, and we should take his word for it, even though he won`t let
us see what Mueller turned up. That announcement was 2 1/2 weeks ago from
the attorney general.
Today was Attorney General William Barr`s first public appearance since he
made that very, very public, very controversial, very puzzling,
declaration. First time since then. First time since he got the Mueller
report. First time since he`s done all this stuff that he`s done with the
Finally, today, with him appearing in public, with him appearing in
congress, we knew we would get some explanation from him as to why he
declared that the president definitely didn`t commit a crime. We`d finally
get some explanation from him as to what basis he used to – on what basis
he concluded that the president didn`t commit a crime. Also, presumably
we`d get some explanation from him as to why he thought it was his job to
proclaim that the president didn`t commit any crime.
At least you`d think we would have gotten that today in his first
appearance since the Mueller report was handed into him and he stuffed it
deep into a desk drawer somewhere. You`d think we`d get answers to all of
those questions, but it turns out nobody asked him at his appearance today
in Congress. Nobody asked him about his declaration that the president
didn`t commit a crime when it comes to obstruction. At least nobody asked
him directly. Nobody asked him directly in a way that made him feel any
need to answer.
Senators will have another crack at William Barr tomorrow when he does one
more congressional appearance before part of the Senate Appropriations
Committee, but if you`re at all interested in the question of whether
Mueller`s findings were ever going to see the light of day, or whether the
Trump administration will be allowed to keep those findings secret, you
better hope that senators, at least the Democratic ones who appear to care
about this issue, you better hope that those senators are preparing for
tomorrow`s hearing with William Barr with some seriousness.
Senators, it`s called a follow-up question. Listen to what he says and
then follow up and press him a little more. It`s called knowing what your
colleagues are planning on asking so you don`t all ask the same thing.
It`s called taking your no doze pills with your OJs, Senators. Come on,
chop, chop. Because there does appear to be a lot to get out of this
attorney general and this attorney general does appear to be making it up
as he goes along.
Even today under basically no inquisitive pressure whatsoever today from a
committee that appeared to be mostly asleep for the entire time he was
there, even with him facing basically no hard questions today, he still had
a lot to spill. Imagine what would happen if he were actually pressed.
(BEGIN VIDEO CLIP)
WILLIAM BARR, ATTORNEY GENERAL: I have already said that I think the
situation here requires me to exercise my discretion to get as much
information out as I can and I think these categories, I think most fair-
minded people would agree are things that have to be redacted.
REP. TOM GRAVES (R-GA): Right. And I guess, just thinking about the
chairman of the Judiciary, he – if he were to release or any member of
Congress were to release the full report of redacted version of report, are
they in compliance with the law or violation of the law and what –
BARR: I don`t want to speculation about all the circumstances that would
be involved. I don`t intend at this stage to send the full unredacted
report to the committee. So, I`m not sure where he would get it. If he
got it directly from the counsel, that would be unfortunate. I doubt that
(END VIDEO CLIP)
MADDOW: Maybe he`d get it directly from the counsel. That`d be
What? That was the attorney general today under gentle almost soporific
questioning from a Republican member of Congress who was trying to get him
to say it would be terrible if someone in Congress got ahold of the whole
unredacted Mueller report and leaked it to the public or leaked the parts
that were supposed to be redacted by the attorney general. In response,
the attorney general suggested, wait, how would a member of Congress, how
would the Judiciary Committee, say get an unredacted copy of Mueller`s
He then sort of fantasized it, sort of just thinks out loud, well, I
suppose he can get it directly from Robert Mueller. He could get the whole
unredacted report directly from the special counsel. I guess he could do
that. That would be unfortunate.
Say what now? Whoop. Raise your hand if you even knew that was a
possibility, unfortunately or not. I mean, the attorney general sort of
accidentally suggesting today that, yes, Robert Mueller could give his
confidential report to the Justice Department.
He could also just convey it to Congress. Why not? He could just give it
to Jerry Nadler. That would be unfortunate if he gave him the whole full
unredacted report. Wouldn`t that be just, you know, sad?
Maybe somebody could follow up on that with additional questions for the
attorney general. Is that possible?
The attorney general today said his edited version of Mueller`s report,
with a whole bunch of redactions cut out of it, he said that will be
released within a week. He said flatly that he has no intention of giving
the Congress the full report without the cuts.
When it comes to what he wants to cut out of it, he said he will cut out
grand jury material, even though courts in the past have agreed to allow
the release of grand jury material to Congress. He said today he`s not
going to ask any court to do that. He just doesn`t want to ask.
(BEGIN VIDEO CLIP)
REP. ED CASE (D-HI): Are you intending to go to court to ask for guidance
and/or direction and/or an order where you are uncertain whether you can,
in fact, release or should, in fact, release materials?
BARR: No, but, I mean, the chairman of the judiciary committee is free to
go to court if he feels one of those exceptions is applicable.
CASE: The right is yours to ask for these exceptions.
BARR: Well – why do you say the right is mine?
CASE: Because you are the exercising authority under 6E.
BARR: Yes. But I think if the chairman believes that he`s entitled to
receive it, he can move the court for it.
CASE: Well, I`ll come back to this. It`s your right to ask, so I`m
asking, what is your intention?
BARR: My intention is not to ask for it at this stage.
(END VIDEO CLIP)
MADDOW: I`m not going to ask for it. The attorney general says, no, he`s
not going to ask a court to allow him to release the grand jury material in
Mueller`s report to Congress. Why would I do that?
This is the first time he`s actually addressed that question. He has left
that as an open question since the Judiciary Committee has been demanding
that he make that request of a court. Today, he said, nah, why would I do
It earned this response from Judiciary Chairman Jerry Nadler.
(BEGIN AUDIO CLIP)
REPORTER: The attorney general said in pretty much no uncertain terms he
had no intentions of releasing – going to the court to release the grand
jury information to Congress and punted to you on that front. What do you
think about that stance?
REP. JERROLD NADLER (D-NY): Well, I think it`s unfortunate. We`ve been
doing everything we could for the last, I don`t know, weeks and weeks to
try to reach an accommodation to the attorney general in which we would see
the report and the underlying evidence. He has been unresponsive to our
And this is just more evidence that he`s – he`s not going to – we will
certainly – we will certainly – we get the report, I assume, the end of
this week, beginning of next week, yes, if it doesn`t have everything that
we required to do our work, which is to say the entire work and the
underlying evidence in it, we will issue the subpoenas forthwith and we
will go to court to ask for release of the 6E material.
It`s unfortunate that he won`t, he won`t join us. Previous attorney
generals have joined the Congress in in that request. Every similar case.
REPORTER: What do you make of Barr`s specific contention that Congress is
not exempt from grant jury secrecy laws?
NADLER: Well, Congress is not exempt in the sense that we need a court
order, but Congress has certainly gotten that court order in every similar
situation in the past. Congress has always gotten the grand jury
information in the Clinton situation, in the Nixon situation, and in many
REPORTER: Barr seemed to put the ball in your court in terms of asking for
the grand jury information. Is that something you would do?
NADLER: Oh, absolutely, we`re going to do that.
(END AUDIO CLIP)
MADDOW: Oh, absolutely, we`re going to do that, even though the attorney
general will not join us in trying to free that information up.
As soon as William Barr, the attorney general, hands over his cut-up,
edited, Jefferson bible version of the report, Chairman Nadler, the
Judiciary Committee, says he`s going to subpoena the whole thing. The
whole unredacted version, including asking for a court order to release any
grand jury information that Barr has cut out of it, plus all the underlying
evidence that goes along with it.
Now, there`s two new things we just learned about that. Number one,
William Barr`s refusal to ask the court to release that material to
Congress, and Nadler saying, OK, then we`ll do it, it raises a brand-new
prospect we have not had to face before. It raises the prospect that one
of the things that House Judiciary Committee might have to do is they might
have to open an impeachment inquiry into President Trump, as a formal
matter, so the court would recognize them as being in the midst of a
judicial proceeding that could legally receive that grand jury stuff.
They would not have to open this grand jury proceeding because they`re
intent on impeaching the president, right – excuse me, they would not have
to open this impeachment proceeding because they`re intent on impeaching
the president right now, they would have to open it up just so they could
receive that material from the court.
Democrats, of course, have not wanted to open impeachment proceedings
against President Trump, basically for political reasons, but it`s possible
they might need to now if they want a court to give them Mueller`s
evidence. Since the attorney general won`t help them get it. That is, of
course, provided that Robert Mueller, himself, doesn`t just walk his report
over to Capitol Hill and hand it to Jerry Nadler, which the attorney
general suggested today is an unfortunate possibility, even if it`s one
that nobody knew of before he kind of smirked that out today casually.
Provided that doesn`t happen, this new idea that House Democrats might have
to formally open an impeachment inquiry into Trump in order to get a
report, that`s a brand-new twist in this saga. It has legal elements. It
has political elements. We`re going to get expert advice on that in just a
But the other curveball that Barr threw today, and this is something we
just don`t have a way to check, and it doesn`t seem to make much sense on
its face the way he said it, but it is what he said. The other curveball
Barr threw today has to do with the four categories of things that Barr
says he`s now cutting out of the Mueller report.
Remember he said he`s cutting not just the grand jury information, which is
the thing they have to go to court to try to get an order to release that
information, he says he`s also cutting information that could impact
ongoing investigations. He says he`s also cutting information that could
impact the privacy or the reparations of peripheral third parties. And he
says he`s cutting information that the intelligence community wants cut out
for its own reasons.
That list of four categories of information, that – that stuff that all
has to be cut out of Robert Mueller`s report before any of Mueller`s report
gets shown to Congress, that is something that appeared, like, fully formed
in the sky as if it were a rainbow ending in the attorney general`s head.
This list of stuff that has to be cut out of the report, it`s not from the
special counsel regulations. This is, like, a miracle of spring. This
isn`t even the initial list of things that Attorney General Barr said he`d
cut. It`s just now what he says he is currently doing. And we`re supposed
to assume there`s a quasi legal framework under which he`s made the
decisions that this is what he has to cut but we take his word for it.
Today, though, check this out. He said when it comes to making all of
these different categories of cuts, he said in the first three of those
four categories, it`s Robert Mueller. It`s the special counsel`s office
that`s choosing what gets cut. Really? Choosing what gets cut out of
their own report. Really?
At least that is what the attorney general seemed to suggest today under
questioning from Hawaii Congressman Ed Case. Questioning I should say that
seemed to unnerve the attorney general just a little bit.
(BEGIN VIDEO CLIP)
BARR: I`ve already explained the information that`s going to be redacted
from the report, the four categories. That is what`s going to govern the
redactions, and in fact, the special counsel and his staff are helping us
select the information in the report that falls into those four categories.
CASE: We`re sitting here, from my perspective, with virtually unlimited
discretion for you to redact from that document. And maybe if I trusted my
government more, I would be comfortable with that, but since I don`t, I`m
not comfortable with that, and I`m looking for some way in which your
judgment, which is going to be the arbiter, as I understand it, of what the
public sees, the arbiter, it`s you, ultimately, can be overseen.
I`ve suggested to you that under 6E, there are procedures under which you
can go to court to ask the court to give you guidance, direction, or an
order. I`m not sure whether you will do that or not.
BARR: I think I sort of addressed that. I identified the four categories,
and the team that includes the special counsel office lawyers are
CASE: Can you –
BARR: So they are the ones redacting what is 6E.
CASE: Is there –
BARR: They`re the ones who conducted the investigation. They know what is
6E and what is not 6E. That`s why I`m dependent on the special counsel to
identify 6E. And the intelligence community will identify the intelligence
CASE: Do you –
BARR: And the lawyers who are prosecuting the cases and the special
counsel`s office can identify whether there`s going to be a conflict
between releasing any information and a court order or ongoing prosecution.
And the special counsel`s office knows who the peripheral players are that
they`ve said shouldn`t be charged. So those are the categories.
(END VIDEO CLIP)
MADDOW: Does this mean we`re getting 6E back? I mean, when he – when he
says those – put that list back up again. Put the list back – OK.
6E is the grand jury information. So he`s redacting 6E stuff. That`s the
grand jury material. And he`s redacting information that impacts ongoing
investigation. And he`s redacting information about peripheral third
parties. And stuff that the intelligence community wants out.
He said in Congress today that the first three categories of those
redactions are all being decided by Robert Mueller, by the special
counsel`s office. He says he`s dependent on them to determine what`s grand
jury, what`s 6E, what relates to ongoing matters and what relates to
peripheral third parties. Well, if so, if this is Mueller clearing his own
report for release to Congress, and ultimately for release to the public,
then why would Mueller`s team be so mad about what`s getting cut out of
their report if they, in fact, are the ones in charge of doing the cutting?
I mean, something there just doesn`t make sense. Something maybe the
senators questioning William Barr tomorrow might want to nail down and
quick because this is all apparently happening now and there`s another
piece of it that just unexpectedly broke wide o open tonight, and we`ve got
that coming up. Stay with us.
MADDOW: Today as the attorney general appeared in public in Congress for
the first time since he received and then promptly, poof, disappeared the
Robert Mueller report, there are new questions about the categories of
information he says he`s cutting out of Mueller`s report before he shows it
even to Congress. The attorney general asserted today, sort of oddly, that
it`s not him who`s making the redactions from Mueller`s report before the
report gets shown to anyone.
He suggested today that actually it`s Mueller, and Mueller`s own staff that
are doing the redactions on the first three of these four categories.
Grand jury information, stuff that relates to ongoing investigations, and
stuff that relates to peripheral third parties. The attorney general
saying today it`s the lawyers from the special counsel`s office who are
making all those redactions. Essentially questioning why would anybody be
concerned about what they`d be cutting out of their own report? It`s not
me, it`s them.
If that`s true, that would make a lot of difference in terms of whether or
not the report has integrity. Whether or not the report is being
submarined or whether it is actually what the special counsel intended for
the country and the Congress to see. If the attorney general was right
about that, and he talked about it in a kind of elliptical way, that would
be a really big deal. Hopefully, senators will sort that out with some
follow-up questions with the attorney general when he`s back on Capitol
When it comes to that fourth category of information up there, stuff being
cut out of Mueller`s report at the request of the intelligence community,
on that one, we got big news today as well because late this afternoon, the
head of the intelligence committee announced that actually, no, on that
one, he`s planning on getting those redactions undone, himself. He`s
planning on getting all of the intelligence information that`s being cut
out of the report given to him as well.
(BEGIN AUDIO CLIP)
REP. ADAM SCHIFF (D-CA): We do expect the department and the agencies to
follow the law, and so we`ll be insisting on all the evidence as it
pertains to counterintelligence.
REPORTER: Did they give you any kind of response?
SCHIFF: We have not gotten a response yet. Our priority has been to
support the Judiciary Committee`s effort to make the report public.
REPORTER: But in theory, isn`t this information that they should just,
that you shouldn`t need to request?
REPORTER: That you should already have, right?
SCHIFF: That`s correct. That`s correct.
REPORTER: So the fact that you even have to go about asking for it, what
does that say to you?
SHCIFF: Well, you know, the reality is that we don`t know the status of
the counterintelligence investigation. And, but we are, like I mentioned,
right now, in getting the report, getting it in its entirety, being able to
make the report public, but we are going to insist on full information on
the counterintelligence investigation.
What we will insist on being fully informed of the – any of the findings
of the counterintelligence investigation and any of its scope.
REPORTER: And who did you make the request to specifically?
SCHIFF: I don`t want to bet into the particulars, but I can tell you we
have – we did make the request and we`ll be staying after it.
(END AUDIO CLIP)
MADDOW: We have made this request. We`re getting the intelligence
And that`s a totally different line of attack in terms of getting
information that the attorney general might want to cut out of the report.
That`s a totally different line of attack, line of approach than the
Judiciary Committee or any other part of Congress might be taking to get
anything else that Barr is cutting.
So, today was the first time the attorney general has appeared in public
since he got Mueller`s report 2 1/2 weeks ago. And subsequently started
releasing statements about it and announcing things, he`s going to cut out
of it. I mean, we still don`t know why the attorney general announced that
the president shouldn`t be prosecuted for obstruction even though Robert
Mueller concluded no such thing. Nobody asked William Barr about that
today at today`s hearing.
But Congress is saying they`re getting all of Mueller`s report without
redactions. The intelligence committee chair saying as of tonight that
even the intelligence stuff needs to go to him intact. And now this fight
is fully on, including a basic fight we didn`t even know to expect about
the facts to try to figure out whether Mueller`s team, itself, is involved
in this part of the process, or whether they are, as a lot of people fear,
whether they are bystanders while William Barr is overseeing all this stuff
being cut out of their report and their findings and their evidence against
We don`t even know the facts of that process now given these remarks from
the attorney general, let alone what Mueller`s actual findings were. I got
to say, one of the most unexpected and remarkable things about this entire
part of this saga is that this newly appointed attorney general who is not
a babe in the woods, he was attorney general before. He`s an experienced
guy, he`s a seasoned D.C. pro.
What has been one of the most remarkable things to see in this whole saga
is that he is making it up as he goes. He changes the story and his
explanation and even what he describes as the facts of what he, himself, is
doing. He changes it a little bit every single time he talks about this
Well, tomorrow he`s going to have to talk about it again, and based on all
the dangling threads he left today, I`m guessing tomorrow is going to go
worse than today did, but watch this space.
MADDOW: Neal Katyal is the former acting solicitor general in the Obama
administration. He`s also the author of the Justice Department regulations
that defined the office of special counsel.
Neal Katyal joins us live tonight.
Neal, thanks very much for being here. I really appreciate your time.
NEAL KATYAL, FORMER ACTING SOLICITOR GENERAL, OBAMA ADMINISTRATION: Thank
MADDOW: Let me ask you about something that startled a lot of people today
at the remarks from Attorney General Barr at this congressional oversight
hearing. For the first time, he refused to answer when he was asked if he
has shown the White House Mueller`s report or if he has briefed them on its
contents. Previously, the Justice Department and the attorney general`s
office have said they haven`t provided that information to the White House.
Previously, the White House has affirmed that they hadn`t seen it.
But today, both the Justice Department and White House refused to reaffirm
those previous statements and Barr wouldn`t answer questions about it in
Congress. That raises the prospect that he has now briefed the contents of
Mueller`s report to the White House before Congress has seen it.
Is that something you anticipated at all in the special counsel
regulations? How does that fit within his remit?
KATYAL: Heck, no. I mean, I was really quite startled, to use your word,
I mean, it felt really a little Kremliny today, really hiding information
from the American people. And the attorney general today was acting really
not like the attorney general of the people of the United States but the
attorney general of the Republican Party. This is, remember, a guy
confirmed by a four-vote margin, with 44 Democrats who voted against him.
He only got three Democratic votes. He got 51 Republican votes.
But he`s acting that way. He`s acting that way by not telling the Congress
whether or not he gave the report or information about the report to the
White House. He`s acted that way throughout. He cleared the president in
48 hours of the obstruction of justice charges that Mueller didn`t resolve
in two years.
He`s done all kinds of things. I mean, startlingly today he said, I`m not
going to even go and bother the court on releasing the grand jury
information. Something that Ken Starr and Leon Jaworski, the two prior
special prosecutors did. So, he`s not even willing to play by Ken Starr`s
rules. So, yes, I think I`m very, very troubled, Rachel.
MADDOW: In terms of that possibility about the – the possibility of a
court giving permission to release that grand jury material, one of the
things that was discussed today sort of implicitly in Barr`s hearing,
explicitly later in the day by Jerry Nadler responding to the attorney
general`s testimony. It`s now starting to be discussed more broadly around
this whole issue is the prospect that if Nadler without Barr`s help, if
Nadler, alone, as the judiciary committee chairman is going to go to the
court and request to see this information, and knowing that this kind of
information has been handed over to Congress in previous investigations of
previous presidents, he might have to open up an impeachment inquiry into
President Trump in order for the court to feel comfortable conveying that
grand jury information to him.
What`s your perspective on that?
KATYAL: Yes, I don`t think that`s necessary. After all, Ken Starr went to
the court when there was no formal impeachment inquiry and got it granted
but I do think there`s a really important tell in your question because it
really does go to is Barr being up and up with the American people?
I mean, when I was at the Justice Department, there were these people who I
called legal Houdinis who they would find any law, they would find a
loophole and a way around it and often very tendentious and not true and,
you know, these are people who didn`t respect the rule of law. But, you
know, those people were there.
But I never found someone at the Justice Department quite like Barr, which
is a 99 percent legal Houdini but 1 percent of the time a Dr. No, someone
who reads these legal restrictions, like grand jury 6E, or what he claims
about the special counsel regulations say, oh, I couldn`t possibly do that,
that would violate 6E, you`d need a formal impeachment inquiry, you need
this, you need that. You know, that combination of 99 percent legal
Houdini, 1 percent Dr. No is a really troubling one. It`s not up and up.
It`s someone who`s willing to read the rules broadly to protect the
president, like his obstruction of justice memos, 19-page memo.
His whole career has been built on being a legal Houdini. When it comes to
keeping information from the Congress and the American people, oh, no, all
of a sudden everything`s got to be read so tightly. It`s not the real
MADDOW: Neal Katyal, former acting solicitor general in the Obama
administration – Neal, I appreciate you being here tonight. Thanks.
KATYAL: Thank you.
MADDOW: All right. We`ve got much more to come tonight. Stay with us.
MADDOW: The chairman of the Ways & Means Committee in the House has set a
deadline of April 10th for the commissioner of the IRS to hand over to
Congress, to hand over to him, specifically, the president`s tax returns,
his personal returns and a bunch of returns from the president`s business.
He set an April 10th deadline. April 10th is, of course, tomorrow.
But as of this afternoon, the IRS commissioner appeared to have absolutely
no idea whatsoever as to how he planned to respond by tomorrow`s deadline
or whether or not Treasury Secretary Steve Mnuchin might try to step in to
stop the release of those returns under the law.
(BEGIN VIDEO CLIP)
CHARLES RETTIG, IRS COMMISSIONER: We did receive the letter. We`re
looking into it and expect to respond.
UNIDENTIFIED MALE: And so I`ll ask you, how will you respond?
RETTIG: We`re working on it.
UNIDENTIFIED MALE: Has Treasury talked to you about this decision?
RETTIG: They`ve talked to me about the –
UNIDENTIFIED MALE: Communicated with you is, perhaps, the better way to
RETTIG: They`re aware of the fact that we`ve received the letter. That`s
UNIDENTIFIED MALE: Has anyone at Treasury communicated with anyone at the
IRS about that decision?
RETTIG: Counsel for the IRS has been interactive and I had a brief
discussion with the secretary that we received the letter.
UNIDENTIFIED MALE: That conversation was just that you received the
letter? Was there something beyond the fact that the letter was received?
UNIDENTIFIED MALE: He didn`t request you to act in a certain way?
UNIDENTIFIED MALE: He didn`t suggest that he was going to make the
decision to you?
RETTIG: There was a discussion about – and that`s what I`m saying about
we`re working on it, there was a discussion about who`s going to handle the
UNIDENTIFIED MALE: And what was – and what did the treasury secretary
RETTIG: There`s no conclusion on that.
UNIDENTIFIED MALE: Is it your understanding that you have discretion under
this sort of a request under the law that you can decide whether or not to
comply with a re quest under 6103 of the tax code?
RETTIG: I think it would be inappropriate for me to identify what the
understanding is with respect to that.
UNIDENTIFIED MALE: What have your legal experts told you? It`s hart to
imagine, sir, they`re going to say five minutes until midnight, what are we
going to do? Did they talk to you at all, did you ask whether you have
discretion to respond or to comply?
RETTIG: I have not asked and I think it`d be premature for me to speculate
with you now.
UNIDENTIFIED MALE: Would it be premature to ask them if you have
RETTIG: I have not asked.
(END VIDEO CLIP)
MADDOW: Now that you mention it, I haven`t asked if this is my job, if I
have discretion over whether or not to release the tax returns of the
president. Also, I think it would be inappropriate for me to identify my
understanding of the issue.
Also, there was no conclusion on what the treasury secretary plans to do,
but don`t worry, we did receive the letter. We`ll come up with an answer.
I know the deadline is tomorrow. Is it time for lunch?
The current Treasury Department may not know how to handle this issue. But
former Clinton treasury secretary Larry summers says it`s actually quite
simple. In a coldly blistering op-ed in the “Washington Post” today, Larry
Summers writes what he would do were he in Secretary Mnuchin`s position.
As a former treasury secretary, how would he have approach this?
For the secretary to seek to decide whether to pass on the president`s tax
return to Congress would surely be inappropriate and probably illegal, I
would surely not have done it. Rather, I would have indicated to the IRS
commissioner that I expected the IRS to comply with the law as always.
Joining us now, very pleased to say, is Lawrence Summers. He`s the former
treasury secretary under President Clinton. He`s former director of the
National Economic Council under President Obama. He currently serves as
economics professor at Harvard University. He also authored this opinion
piece in the “Washington Post” making the case the current treasury
secretary shouldn`t stop the IRS commissioner from releasing President
Trump`s tax returns.
Secretary Summers, thank you for joining us. It`s a real honor to have you
LAWRENCE SUMMERS, FORMER TREASURY SECRETARY: Good to be with you, Rachel.
MADDOW: One of the things I found striking in your op-ed, today, although
it is carefully worded, it`s also very unequivocal that this is black
letter law, that the IRS commissioner does not have leeway to ignore this
request and the treasury secretary does not have leeway to direct his IRS
commissioner that he should ignore this request. Are you staking out a
claim for the purposes of argument or are you stating something that`s
essentially consensus among everybody who`s looked at these matters before?
SUMMERS: I can`t speak for everyone, but I have spoken with a substantial
number of legal authorities including those who are in the treasury during
my time in office. I think there is no question at all but that 6103,
which has been around since 1924, is unambiguous on the Ways & Means
Committee`s right for taxpayer information. It is not qualified in any
way. It is the obligation to turn those documents over.
Further, the IRS Restructuring Act which was passed by the Republican
Congress in the 1990s makes clear that longstanding delegation order under
which the IRS commissioner is responsible for enforcing the tax law and the
Internal Revenue Code, not the secretary of the treasury, that that`s
delegated by the treasury secretary. That the treasury secretary is not
permitted to casually alter that delegation order, but can only alter it
with 30 days` notice to the congressional committee, which has not been
So I think it`s also clear that this is a matter under law that sits with
the IRS commissioner. I don`t see either of those as matters with
ambiguity associated with them, and, frankly, the only thing that seems to
me clearer than the two propositions I just stated is that it`s
inappropriate for the White House to be involved in making dictates about
how the president`s tax return is going to be handled.
MADDOW: One of the things that emerged today, to that last point, is when
Secretary Mnuchin was answering questions in congress, he conceded that
members of his staff at treasury have already consulted with the White
House about how they are to respond to this demand from the Ways and Means
chairman. They`ve already started talking to the White House about this.
There seemed to be some lack of clarity in Congress, even during that
questioning, as to whether or not that was improper or even potentially a
violation of the law for Mnuchin`s office to already be talking to the
White House about a matter that ought to be handled independently inside
SUMMERS: I mean, there is pretty much clarity here about talking about
legal matters affecting individual entities, whether it`s the controversies
surrounding Whitewater during the Clinton administration, whether it`s the
controversies surrounding the treatment of S&Ls and dialogues with
legislators, the Keating Five and all of that, during the first Bush
administration. There is really not any question that when legal judgments
are being made affecting particular entities, there is not supposed to be
political consultation with the White House.
This is about as well established as anything. It goes back, you know,
many, many years. Most famously and most egregiously during the Nixon
administration, but this has played out during other administrations as
well. When I worked on the White House staff, you know, the first thing we
were told was under no circumstances were we involved in any kind of
enforcement action being done by any kind of government agency, and
certainly not an agency that was supposed to be separate and not political
in its activities.
MADDOW: Lawrence Summers, former treasury secretary under President
Clinton, former director of the National Economic Council under President
Obama – sir, thank you for coming on tonight. It`s a really pleasure to
have you here. Please come back.
SUMMERS: Thank you.
MADDOW: All right. I will say what the secretary is saying there about
the clarity of the responsibilities for the IRS commissioner and for the
treasury secretary here in terms of what one of them is supposed to do and
the way the other one is not supposed to get involved here and the way the
White House is not supposed to get involved here, it does seem to be, if
not consensus, it does seem to be pretty crystal clear what`s supposed to
happen. What`s not clear is what`s going to happen when they inevitability
violate those clear strictures, when the IRS commissioner gives some
response that defies the law, when the treasury secretary weighs in and
says, no, I`m making this my decision. When the White House concedes, yes,
we told them what to do on this.
What`s going to be the comeuppance for that? You know, how is that going
to be fixed when they break that norm and potentially that law? That`s the
part of it where we don`t know where this is going.
Stay with us.
MADDOW: Late last week, the president fired the head of ICE. Sunday, he
fired the homeland security secretary. Monday, he fired the head of the
Now, he just fired this woman, Claire Grady, the number three official at
homeland security. She`s a career government official. She spent decades
in public service. Tonight she is out, but it does not appear that the
White House targeted her for firing. It seems like they may have had to
fire her to cover up their own previous mistake.
When the president announced the homeland security secretary was out on
Sunday, he apparently didn`t bother to ask anybody if there was any issue
with him just sticking in one of his own new guys to take Kirstjen
Nielsen`s place. He just announced on Twitter that he was putting in this
guy as acting secretary and I`m sure that felt very tidy to the president,
but legally, Homeland Security has a line of succession.
When they realized that and that Claire Grady was next in line of
succession as acting secretary in the event that the secretary was fired or
resigned, they realized oh, I guess we`ve got to fire Claire Grady, too.
And so, now, they fired Claire Grady. Oops.
And the responsibility for announcing she is leaving fell on Kirstjen
Nielsen. That`s who had to announce tonight that Grady is out. That`s the
last thing they`re having Kirstjen Nielsen do before tomorrow, she departs
as her last day on the job.
Then presumably, they`ll have Claire Grady clean up somebody else`s
departure on their way out, too. Last one out, turn out the lights.
We`ll be right back.
MADDOW: That does it for us tonight. You should know, though, that
tomorrow morning, Attorney General William Barr is going to be back in
Congress testifying in open session in a Senate committee tomorrow. It
starts at 10:00 a.m. Eastern Time. I will be the one watching and tweeting
about it while eating my Wheaties.
I`ll see you again tomorrow night.
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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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
or remove any trademark, copyright or other notice from copies of the