Pres Trump sues Manhattan DA. TRANSCRIPT: 9/19/19, The Last Word w/ Lawrence O’Donnell.

Guests:
Joel Brenner, Tom Donilon, Laurence Tribe, Raja Krishnamoorthi, Ned Price
Transcript:

LAWRENCE O`DONNELL, MSNBC HOST:  Good evening, Rachel. 

 

And we saw, of course, Congressman Adam Schiff, the chairman of the

Intelligence Committee, on your program and speaking directly to the

whistleblower, as you did too.  And I am sure that the whistleblower was

watching the chairman tonight. 

 

RACHEL MADDOW, MSNBC HOST, “TRMS”:  Well, that makes me very unsettled to

think about that. 

 

O`DONNELL:  I understand. 

 

MADDOW:  But there is this weird situation where the whistleblower

theoretically can convey that information directly to the committee.  But

it`s almost impossible to do so legally without the channel being opened

for that person.  And the Trump administration won`t open the channel.  And

so, Schiff has to be totally responsible in terms of what he can promise

that person in terms of retaliation, protection from prosecution, all of

those things.  I mean, this is incredibly high stakes for everybody

involved at this point. 

 

O`DONNELL:  Yes.  And as we saw in the inspector general`s letters to the

committee today that Adam Schiff released is the inspector general`s work

hard to try to open the door for the whistleblower to go straight to the

committee and eventually the inspector general just had to tell the

committee that he`s reached an impasse with the acting director and the

acting director is blocking the way with the support of Attorney General

William Barr. 

 

MADDOW:  Yes.  And Schiff is now warning that the inspector general himself

might not be protected from prosecution or reprisal from the Trump

administration here as he tries make this thing known.  It`s not even his

complaint.  He`s just trying to take care of it and protect their legal

crosshairs by doing so if they continue down this road. 

 

O`DONNELL:  And we have a former inspector general joining us tonight. 

(AUDIO GAP) a view from someone who`s been there about how to make sense of

all of this. 

 

MADDOW:  Excellent.  Thanks, Lawrence. 

 

O`DONNELL:  Thank you, Rachel. 

 

We have so much ground to cover for you tonight in helping us all

understand the day`s developments in the whistleblower standoff between

Congress and the acting director of national intelligence about the

reported now promise that the president allegedly made to a foreign leader. 

Tonight, we will talk with someone who was inside the closed-door House

Intelligence Committee briefing today with the inspector general who is at

the heart of this controversy. 

 

We`re also really lucky to be joined tonight by two intelligence community

experts who have a lot to teach us.  Joel Brenner is the former inspector

general at the National Security Agency.  He was quoted in the original

breaking news report from the “Washington Post” last night.  His experience

gives him unique perspective on this story.

 

And Tom Donilon was the President Obama (AUDIO GAP), you have seen Tom

Donilon dozens of times in situations with President Obama, including that

memorable photograph from the Situation Room during the killing of Osama

bin Laden. 

 

And Harvard Law School`s recognized authority on constitutional law,

Professor Laurence Tribe, will join us later in this hour, on the day when

the president`s lawyers finally said Donald Trump can indeed commit any

crime that you can think of and no prosecutor in America can ever do

anything about it as long as Donald Trump is president. 

 

The Trump lawyers filed an extraordinary document in court today saying

that in effect, President Trump could shoot someone on Fifth Avenue and the

Manhattan district attorney could do nothing about it.  We`ll get Professor

Laurence Tribe`s reaction to that later in the hour. 

 

We begin tonight with the breaking news from “The Washington Post” tonight. 

There is new breaking news from “The Washington Post” tonight.  “The

Washington Post” is reporting a whistleblower complaint about President

Trump made by an intelligence official centers on Ukraine. 

 

According to two people familiar with the matter, the complaint involved

communications with a foreign leader and a promise that Trump made which

was so alarming that a U.S. intelligence official who had worked at the

White House went to the inspector general of the intelligence community,

two former U.S. officials said.  The inspector general testified to a

closed session of the House Intelligence Committee today.  Chairman Adam

Schiff of the House Intelligence Committee released two letters from the

inspector general to the committee that preceded that meeting today that

described what the inspector general has done after he received the

whistleblower`s complaint. 

 

Inspector General Michael Atkinson told the intelligence committee in his

first letter on the matter: During that 14-day time period, the inspector

general conducted a preliminary review of the disclosure.  As a result of

that preliminary review, I determined that the complainant`s disclosure met

the definition of urgent concern, i.e., a serious or flagrant problem,

abuse, violation of the law or executive order or deficiency relating to

the funding, administration or operation of an intelligence activity within

the responsibility and authority of the director of national intelligence

involving classified information.

 

The inspector general explained that the acting director of national

intelligence decided not to follow the law`s requirement, that he

immediately send the inspector general`s report of the whistleblower`s

complaint directly to the House Intelligence Committee`s – the House and

Senate Intelligence Committees within seven days. 

 

The inspector general wrote: Although I believe and appreciate that the

acting DNI is acting in good faith, the acting DNI`s treatment of the

complainant`s allegations` alleged urgent concern does not appear to be

consistent with past practice.  The inspector general noted that

whistleblower complaints we routinely passed along to the intelligence

committees, including whistleblower complaints that the inspector general

thought did not meet the definition of urgent concern and were not

credible.  Even though the director of national intelligence was under no

obligation to transmit complaints that did not meet the definition of

urgent concern or were not credible, even those complaints were routinely

forwarded to the intelligence committees. 

 

The inspector general added: Past practice permitted complainants in the

intelligence community to contact the congressional intelligence committees

directly in an authorized and protected manner as intended by the urgent

concern statue.  I am continuing my efforts to obtain direction from the

acting DNI regarding how the complainant may bring the complainant`s

concerns to the congressional intelligence committees in an authorized and

protected manner and in accordance with appropriate security practices.

 

But a week later, the inspector general wrote to the committee again, this

time saying, although I had hoped that the acting DNI would provide

direction through me on how the complainant can contact the congressional

intelligence committees directly in accordance with appropriate practices,

I have now determined that the acting DNI and I are at an impasse over this

issue, which necessitates this notification and report on our unresolved

differences.

 

In that letter, the inspector general said, the subject matter involved in

the complainant`s disclosure not only falls within the DNI`s jurisdiction

but relates to one of the most significant and important of the DNI`s

responsibilities to the American people.  In addition, it appears to me

that the acting DNI has no present intention of providing direction to the

complainant through me on how the complainant can contact the congressional

intelligence committees directly in accordance with appropriate security

practices.

 

Leading off our discussion tonight is Democratic Congressman Raja

Krishnamoorthi from Illinois.  He`s a member of the House Intelligence

Committee and the House Oversight Committee.  Today, he attended the house

intelligence committee briefing with Michael Atkinson, the intelligence

community inspector general. 

 

Also joining our discussion, Ned Price, a former CIA analyst and former

senior director and spokesperson for the National Security Council in the

Obama administration.  Ned was invaluable to our discussion in breaking

news coverage of this last night. 

 

Evelyn Farkas is with us.  She`s a former deputy assistant secretary of

defense.  She is also an MSNBC national security contributor. 

 

Congressman, let me start with you and what happened in the room that

everyone wanted to be in today.  What can you tell us about what you

learned from the inspector general in the Intelligence Committee today? 

 

REP. RAJA KRISHNAMOORTHI (D-IL):  Thanks for having me on. 

 

This is a very serious matter.  I have not attended a hearing or briefing

quite like this one.  I`ll just set the scene. 

 

You have an inspector general who was appointed by the Trump administration

who came forward of his own volition to the Intelligence Committee to give

us a heads-up that basically a complaint was being withheld from us despite

the fact that he believes that it should have been forwarded to us through

the Office of the Director of National Intelligence.  And he also further

related, and this is also in his correspondence, that it was both credible

and urgent. 

 

And this is something that you don`t – this is unprecedented, a credible

and urgent complaint being withheld from Congress.  The purpose of the

whistleblower statutes was precisely to have these types of complaints

brought to the Congress or to the American people to help expose that

wrongdoing and obviously to remedy and prevent it from happening again. 

 

O`DONNELL:  In his first letter to your committee, which is now almost two

weeks old, he said he believed that Joseph Maguire, the Trump-appointed

acting director of national intelligence who succeeded Dan Coats, was

acting in good faith.  That`s what he said then. 

 

Was that his assessment today? 

 

KRISHNAMOORTHI:  We didn`t get into that.  And I don`t think he was

necessarily asked that question.  But clearly he disagrees with Acting

Director Maguire with regard to the analysis of how the law that you ably

described applies in this particular case.  What we know is that Acting

Director Maguire raised at least two objections with regard to the analysis

that the inspector general had applied. 

 

One, that he thinks that somehow there`s a privilege which would stand in

the way of basically turning over this particular complaint to the

intelligence committee.  I think that`s hogwash.  There`s no such privilege

that would stand in the way.  And certainly, there`s no privilege that

would shield information about wrongdoing from Congress. 

 

The second major objection that we learned about that the acting director

raised is that somehow the fact that the person complained about is outside

of the intelligence community somehow means that the statute does not

apply, the whistleblower statute does not apply in this case.  Again, that

is completely wrong.  The statute applies to any intelligence activity

covered by the operations of the director of national intelligence. 

 

And so, it doesn`t matter where that person actually lies, whether it`s

inside or outside the intelligence community. 

 

O`DONNELL:  Ned Price, I just want to give you a wide open opportunity here

because you just kept throwing things at us last night that I hadn`t even

thought of in my questioning.  So I`m just going to give you the floor. 

Where do you see this on day two? 

 

NED PRICE:  Well, I think what we`ve learned tonight, Lawrence, is that it

has something to do with Ukraine.  We don`t know what precisely.  We don`t

know what this promise may have been. 

 

But I think, Lawrence, it raises the prospect even more so that what we`re

really talking about is a quid pro quo.  And now, of course quid pro quos

are part of statecraft.  They are part of diplomacy.  It`s what presidents

do all the time. 

 

President Obama sent 4,000 troops to West Africa to fight the Ebola virus

in return for a coalition of countries joining us to counter a collective

threat. 

 

But in normal quid pro quos the actor in both the quid and the quo is the

nation.  We give and we get.  I think what we`ve learned of this matter

over the past week and certainly over the past 24 hours raises the

possibility that President Trump floated a quid pro quo where once again

the quid is something the United States could pledge, something we could

offer, perhaps it may have been the release of $250 million in aid that the

administration was withholding from the country of Ukraine. 

 

But the quo in this case may well have been something for President Trump

himself, not something for us, not something that served our national

interest, but something that served President Trump`s political interest

perhaps.  And time and again, this has really been the heart of every Trump

scandal, where his personal, financial or political interests don`t align

with our national interests.  And every single time it seems Trump has gone

with the latter, his own interests over ours. 

 

O`DONNELL:  Evelyn Farkas, you have experience with issues involving the

Ukraine.  Were you surprised tonight to see the word “Ukraine” in the

“Washington Post” headline? 

 

EVELYN FARKAS, FORMER DEPUTY ASSISTANT SECRETARY OF DEFENSE:  No, Lawrence,

I wasn`t surprised at all.  I mean, the president seems to be, as Ned

pointed out, you know, looking out for himself and his interest with

Ukraine, unfortunately has focused on trying to come up with some dirt on

President Biden, which really by the way doesn`t exist. 

 

But I think the bigger problem here, I mean, really, we have to pull back,

and as the congressman pointed out, this is about a tension between the

executive branch and Congress, between the White House and Congress.  And,

you know, we put laws into place.  Congress put laws into place in the `70s

in reaction to abuses by the CIA.  They conducted all kinds of attempted

assassinations in the `50s and `60s.  You know your history.  You were in

the Senate. 

 

And as a result basically what Congress said was okay, CIA, you can do some

dirty things overseas, but every time you want to do a dirty thing, you

have to let us know and you have to have a whistleblower kind of a conduit

directly to Congress that if you`re not letting us know or if there`s some

problem, that people inside who are concerned who have really good evidence

and reasonable cause to be afraid about harm to American national security

can report directly to Congress. 

 

And so, my beef with all of this is, we don`t know yet exactly what`s at

the heart of the whistleblowing complaint but my concern is that Congress

is not getting the information that it deserves.  And you know, the acting

DNI, I know him well from his time as a Special Operations SEAL, you know,

he is probably trying to make the president happy.  But it`s not the right

approach. 

 

Congress deserves to know whatever it is that`s in there.  And if the

inspector general thinks that it`s important enough to send over to

Congress, then it should be sent over to congress.  Again, it runs into the

whole – the whole tension right now that`s going on between Congress and

the White House about the right of Congress to have information that the

White House doesn`t want Congress to have. 

 

O`DONNELL:  Evelyn, let me just take you back to Joseph Maguire, because

he`s the mystery man at the center of all this and most people don`t know

anything about him and he has not been very prominent.  You do know him. 

 

Are you surprised by his conduct so far? 

 

FARKAS:  I mean, yes and no.  You know, the man is obviously a long-time

military officer.  So his impulse I think would be to try to do what the

White House is asking him to do.  But, you know, SEALs are known to be

courageous, generally.  -

 

O`DONNELL:  Can I just stop you there?  Can I just stop you there? 

 

FARKAS:  Sure.

 

O`DONNELL:  Nowhere, nowhere, in the law does it say consult the White

House.  Why would a long-time military officer think beyond the sentences

of the law that are right in front of him?  What is – what is the military

tradition there that he would be following? 

 

FARKAS:  Well, I don`t – yes, so, I don`t know whether somebody else told

someone else in the White House.  So, what we know is this intelligence

officer, the whistleblower, probably was at one point on the White House

staff, which would also explain why they would be privy to phone

conversations because the conversations that the president has with heads

of state, those transcripts are kept very close circle – so, cabinet

members and people assisting the cabinet members. 

 

When I was in the Pentagon, I would see the transcripts of phone calls with

President Putin, for example, or the Ukrainian president.  But it was a

very close circle.  You know, and I was pretty senior in the Pentagon at

the time. 

 

So an intelligence official working in the White House, that person would

also have access to that.  I don`t – I mean, obviously, somebody stepped

in and told Joe Maguire not to send this information over, the acting DNI. 

I think there`s nothing in his military training that should tell him to do

that.  He should seek counsel and it`s clear that his counsel would have

told him, or at least the inspector general would have told him to send

that over to Congress. 

 

So I think he made a misstep and frankly speaking, he`s acting.  So if he

wants to get confirmed by Congress, this is not the right approach

politically even for him. 

 

O`DONNELL:  Well, with the Republican Senate, it could be the only approach

at this point.  We don`t know.

 

Congressman Krishnamoorthi, what did you hear today in the briefing about

Ukraine? 

 

KRISHNAMOORTHI:  I can`t comment on that specific allegation, or that issue

because we don`t know the substance of the complaint.  And so – but I want

to point out one thing.  The purpose of the whistleblower statute was also

to allow the whistleblower to bring a complaint in the right way through

the right process so that we could act upon it in Congress in the

appropriate manner. 

 

But if we don`t act upon it and this information doesn`t get to us in the

appropriate manner, I fear there will be leaks and these leaks are already

starting.  And that`s in part why we`ve learned there`s speculation about

what`s in those – in the complaint.  And there might be some leaks of

classified information.  We should do the right thing, and this should go

through the normal process and come to us. 

 

Finally, the fact that the DNI would assert that the whistleblower statute

does not apply in this case has one other consequence, which is the

attendant or accompanying protections associated with that statute, the

Trump administration is hinting to the whistleblower don`t apply either. 

And so this person, whoever he or she is, is in jeopardy.  And so, that is

something that will discourage other whistleblowers from coming forward as

well. 

 

And that I think is a bigger – as big a concern to me as anything else at

this point. 

 

O`DONNELL:  Congressman Raja Krishnamoorthi, Ned Price, Evelyn Farkas,

thank you all for joining us tonight. 

 

KRISHNAMOORTHI:  Thank you.

 

O`DONNELL:  Coming up next, we`ll be joined by a former inspector general

of the National Security Agency.  Joel Brenner`s experience will give us

unique insight into the inspector general`s fight right now to protect the

whistleblower and the law.  Joel Brenner joins us next. 

 

(COMMERCIAL BREAK)

 

(BEGIN VIDEO CLIP)

 

REP. ADAM SCHIFF (D-CA):  I want to say to the whistleblower if the

whistleblower`s watching you tonight that we are grateful for their courage

in coming forward.  We are going to do everything we can to make sure this

urgent issue is addressed and that you are protected. 

 

(END VIDEO CLIP)

 

O`DONNELL:  That was House Intelligence Committee Chairman Adam Schiff in

the last hour on MSNBC with Rachel. 

 

Joining us now is Joel Brenner, the former inspector general of the

National Security Agency under President George W. Bush from 2002 to 2006. 

Joel Brenner was also the head of U.S. counterintelligence in the office of

the Director of National Intelligence from 2006 to 2009. 

 

Thank you very much for joining us tonight, Mr. Brenner.  We really

appreciate it. 

 

You`ve been there.  You`ve been an inspector general –

 

JOEL BRENNER, FORMER NSA INSPECTOR GENERAL:  Thank you.  I`m glad to be

here. 

 

O`DONNELL:  Thank you.  Just give us your reading on this situation as we

know it at this hour. 

 

BRENNER:  We`ve got a statute here that`s pretty clear on its face.  You

have a complaint that`s come in.  It does appear to be urgent. 

 

And by the way, the decision as to whether this is a matter of urgent

concern that should be reported to the Congress is not a matter that under

the statute is for the Justice Department, not for the president, and not

for the director or acting director.  It`s a matter that`s been left to the

discretion of the I.G. himself, Mr. Atkinson. 

 

And Mr. Atkinson has treated this thing in the proper way and passed it

within a seven-day period to the acting director, who`s sitting on it. 

 

Now, this is on its face a clear violation of the statute.  So what could

Mr. Maguire be saying as to why he isn`t doing this?  Or what could the

Justice Department be saying to him? 

 

You know, it`s either they say two things.  One is this is none of the

I.G.`s business.  And that`s silly.  And I`ll tell you why, Lawrence. 

 

The statute gives the I.G. two different responsibilities.  One is the

responsibility to investigate certain things within the intelligence

community.  The other is to report certain things that come to his

attention, whether he investigated them or not.  That`s what this is about. 

 

So, when the White House or the Justice Department says that the I.G. has

no business investigating this matter, it`s beyond his remit, that`s

irrelevant.  This is a matter that pertains to the operations and

administration of the intelligence community, and that`s why he`s gone

forth in doing this. 

 

And then there`s the privilege issue, if you`d like me to talk about that

as well.  Apparently, justice is saying there`s an executive privilege

here.  And the executive privilege would not stand up in light of either a

criminal matter either a normal criminal matter or a high crime and

misdemeanor if that were involved. 

 

And I think, Lawrence, that`s why the president has just now taken this

outlandish position that not only can a sitting president not been indicted

but he can`t even be investigated.  Because if he can`t be investigated,

nobody could raise the – could try to breach his privilege with an

allegation that this is a matter of criminal behavior.  So, we`re really in

some very deep constitutional water here in my opinion. 

 

O`DONNELL:  So you don`t find it coincidental that today is the day when

the president`s lawyers in Manhattan, as we`re going to discuss with

Professor Laurence Tribe in a moment, actually filed a lawsuit saying the

president cannot – is not subject to criminal process, which is something

Richard Nixon would have liked to know when he was complying with criminal

process in a subpoena. 

 

But – and the fact of the action that we`re now seeing from the acting

director of national intelligence, that he is behaving it seems as if the

president cannot be investigated. 

 

BRENNER: Yes.  Let`s make a distinction, Lawrence, between an I.G.

investigation and the president`s being subjected to criminal process.  I

think the issue as to whether he can be subjected to criminal process would

be very difficult if he can`t be indicted.  I`m going to let my former

teacher Larry Tribe talk about that one. 

 

But that has nothing to do with whether the inspector general or the

Congress could investigate criminal behavior.  And if there is criminal

behavior here and if the privilege is being asserted to shield criminal

behavior, I think the privilege falls apart.  No coincidence here. 

 

O`DONNELL:  Let me go to a line in the law here governing the inspector

general`s work and the DNI`s work on this.  And this is the sentence that I

think the intelligence committee is probably worried about now, because

Adam Schiff has made some public comments about the possibility of suing to

obtain this.  But the law says an action taken by the director or the

inspector general under this paragraph shall not be subject to judicial

review, which means you cannot bring a lawsuit to sue the director based on

any decision he makes under this law. 

 

BRENNER:  Well, I think that statute is saying that the I.G.`s decision

cannot be subject to judicial review, which means I think the I.G. can`t be

– his discretion can`t be challenged.  If the I.G. says it`s a matter of

urgent concern, it should be reported, I don`t think somebody can go to

court and challenge that.  I think that`s different than whether somebody

could go to court and challenge the behavior of the acting director, who

seems to have forgotten that his oath is to the Constitution, not to the

president. 

 

You know, one sees this in former military officers who forget that they`re

no longer in a chain of command with a commander in chief at the top. 

They`re in the civilian government now.  It`s quite a different thing. 

 

O`DONNELL:  Talk about – just take a second for that.  Is that a

phenomenon that you`ve observed that – because Joseph Maguire spent about

36 years I think in the Navy.  And people with long careers in the military

are more accustomed to a notion of chain of command starting in the Oval

Office. 

 

BRENNER:  Yes.  I have observed that.  I think – look, the military has a

great tradition of subordination to civil authority and to a chain of

command.  And when they get a command, whether they like it or not, they

snap and salute.  That`s good.  We value that. 

 

Once they`re in the civilian government, they still have obligations to

follow rules and follow directives from above, but he certainly didn`t have

an obligation if this is what he did to ask for advice from the Justice

Department or the White House.  Nor did he have an obligation I think to

follow that advice.  He needs to remember who he works for.  And his oath

is to the Constitution, not to the president.

 

O`DONNELL: Former NSA Inspector General Joel Brenner, thank you very much

for your invaluable perspective on this tonight, we really needed your

input, thank you.

 

BRENNER: Thanks for having me.

 

O`DONNELL: And when we come back, Tom Donilon, the former National Security

Advisor to President Obama will join us next.

 

(COMMERCIAL BREAK)

 

(BEGIN VIDEO CLIP)

 

REP. ADAM SCHIFF (D-CA): This doesn`t involve some policy disagreement.

This involves an allegation of serious wrongdoing, a something that the

Inspector General felt needed to be presented to Congress was squarely

within the jurisdiction of the Director of National Intelligence. And it is

unprecedented for a Director to withhold that information from Congress.

 

(END VIDEO CLIP)

 

O`DONNELL:  Joining the discussion now is Tom Donilon the former National

Security Advisor to President Obama from 2010 to 2013. He has advised three

U.S. Presidents on national security, foreign relations and cybersecurity

issues.

 

Tom, I just want to give you a wide-open field here and your reaction to

what is now two days of this story and where it stands tonight with the

latest information that it appears that the information that is involved in

this is the President and something involving Ukraine and some kind of

promise.

 

Those are the key words that we know so far. We`re not sure exactly how to

connect them.

 

TOM DONILON, FORMER NATIONAL SECURITY ADVISOR TO PRESIDENT OBAMA: Right.

Yes, Lawrence, it`s nice to see you. I`d say three things. One is that it

is an unprecedented situation.

 

I don`t know of an example and I haven`t heard anybody give an example of

where a credible and urgent whistleblower complaint hasn`t been shared with

the Congress, and indeed the practice is even to share complaints generally

with the Congress.

 

If you`re involved in the Executive Branch and the intelligence world, you

understand you have an obligation, a statutory obligation, to share

significant intelligence matters with the elected Congress.

 

Now, we don`t know with respect to the details of the Ukraine story that

broke in the papers - the papers tonight. If it`s true, of course it would

be an extraordinary story and it was certainly be worthy of serious

investigation by the Congress, if not others, point one.

 

Point two is, I think Joel Brennan did a good job of laying out the

situation. We have here a situation where the whistleblower has followed

the statute and the regulations to a T. He or she didn`t leak this

information, they didn`t go inappropriately to the Congress. Therefore he

or she should be absolutely protected under the statute here.

 

Second, we had the appropriate official under the statute make a

determination. That official by the way is a Trump appointee, as the

Inspector General of the intelligence community, made a determination under

the statute that it was an urgent and credible matter, and should go to the

Congress through the DNI.

 

The DNI is obligated to do that and he can make comments by the way with

respect to the - with the allegation. But he`s obligated to send it on. And

indeed, we heard today in the extraordinary letter that was released by

Congressman Schiff that the Inspector General also concluded that the

matter at issue here was squarely in the ambit of responsibility, indeed

one of the core responsibilities he said that the DNI has to the American

people.

 

So it`s an extraordinary situation. I think it is important to point out

though that the players here have been following the statute and

regulations appropriately to the T.

 

The third thing I wanted to say is this, and we haven`t really talked about

this and it`s kind of a - I`d like to step back a little bit, what I`m

really worried about here, it`s a broader concern. This is also very

important right, we have to get to the bottom of what the - of what the

complaint was here, and the whistleblower needs to be absolutely protected.

 

But the broader concern I have is this, this is incredibly distracting from

the intelligence committee and the people who protect our country. I have

two kind of sub concerns here. One is that we have extraordinary

instability at the top of some of our key national security agencies.

 

We`ve had the - the Department of Homeland Security has been virtually been

decapitated as an Acting Director there, and I think there are probably

half a dozen or more acting people in the senior roles there.

 

We have an Acting Director of National Intelligence. The President let go

of the Director and the Deputy Director. We have a new National Security

Advisor, the fourth National Security Advisor. We`ve had a breakdown in

process, and we have incredible distraction.

 

When you have senior people having to deal with things like they`ve been

dealing with this week, which takes all their time, they`re not engaged in

the focused work of protecting the country.

 

And I can tell you, over the course now of 18 years since 9/11, it is not

an accident that this country has been better protected. It`s not an

accident that the professionals have the focus, the processes in place that

have protected this country.

 

So this instability at the top, Lawrence, and I think you`d agree the great

distraction created here in all this chaos I think is really dangerous for

the country.

 

O`DONNELL: Yes, I want to go to the possibility of the ways this might come

out. And it seems like if the Director wants to just continue to block

this, it doesn`t look like the law provides a way around that. It says that

any action taken by the Director or the Inspector General is not subject to

judicial review, so I don`t really see around - the way around that.

 

But they should all know that the polls are indicating as of tonight that

there will be a new President 16 months from now. And 16 months from now,

there will be a new Director of National Intelligence and this will be

released at that time. This document is still going to be there. It will

eventually in the next Presidency at the very latest all become available

to the Congress.

 

DONILON: Yes, I think you have to assume at some point that this

information will be made available to the Congress. Now, I have not heard -

early as Joel Brennan was saying, I`ve not heard the administration make

and express privilege claim. If they have a privilege claim to make, they

should make it and it should be confronted with the Congress, and typically

you try to work with some sort of accommodation.

 

There`s lot of discussion about this statute over the course of the last -

over the last 20 years, and the thrust of kind of learning has been that,

when there is a dispute over the release of classified information, there

would be an accommodation, that it would be worked out.

 

Of course here, we have the extraordinary situation that if the press

reports are true, it involves the President of the United States and his

conduct, which makes it much more difficult circumstance.

 

Lawrence, as you know, the founders have set up the system of separation of

powers, of checks and balances, they have authorities and interest on both

sides. The President has an interest in conducting foreign affairs and

protecting deliberative materials.

 

The Congress has an interest in oversight, which by the way the

administration`s taken extraordinary position, which is to reject all

oversight. And that typically has to be balanced and we rely in this

country on the good, the judgment, and the character of the players on both

sides.

 

O`DONNELL: Tom Donilon, cannot thank you enough for joining us tonight. You

have been there, you know the weight of these issues, and having your input

was invaluable. Really appreciate it.

 

DONILON: Thank you, Lawrence, nice to see you.

 

O`DONNELL: Thank you. And when we come back, Donald Trump`s lawyers now say

that he absolutely could shoot someone on Fifth Avenue, and if he does, the

Manhattan District Attorney cannot do a thing about it.

 

Harvard Law Professor Laurence Tribe has something to say about that, and

he`ll join our discussion.

 

(COMMERCIAL BREAK)

 

(BEGIN VIDEO CLIP)

 

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I could stand in the middle

of Fifth Avenue and shoot somebody and I wouldn`t lose any voters, okay,

it`s like incredible.

 

(END VIDEO CLIP)

 

O`DONNELL: And now he has gone beyond that. Now, the President is saying I

could stand in the middle of Fifth Avenue and shoot someone and I cannot be

prosecuted for that crime or any crime.

 

In New York City today, the President`s lawyers sued Manhattan District

Attorney Cyrus Vance, and in filing the lawsuit, the President`s lawyers

told the court the President thus cannot be subject to criminal process for

any conduct of any kind, while he is serving as President.

 

So according to President`s lawyers, Donald Trump could commit murder, he

could commit murder on Fifth Avenue with the whole world watching on TV,

and there is nothing law enforcement could do about that, as long as Donald

Trump is President.

 

The President`s lawyers are suing the Manhattan District Attorney to try to

block the District Attorney`s subpoena of President Trump`s personal tax

returns and business tax returns. That subpoena was not served on Donald

Trump, it was served on the accounting firm Mazars, which prepared those

tax returns and has copies of them.

 

The Manhattan District Attorney is conducting an investigation into

potential criminal wrongdoing by Donald Trump and his company in the hush

money payments to Stormy Daniels in the last month of the Presidential

campaign, which federal prosecutors in New York called a criminal

conspiracy against the United States, which was designed to affect the

election.

 

The President`s lawyers don`t point to a single line in the Constitution to

support their position, because there is no line in the Constitution that

says the President is not subject to criminal process. In fact, the Supreme

Court ruled that President Richard Nixon was subject to criminal process,

when they voted unanimously to enforce a criminal subpoena issued by a

special prosecutor, who was conducting a criminal investigation of

President Nixon.

 

President Nixon then complied with the subpoena and handed over audio tapes

that showed the President engaged in a criminal conspiracy, and shortly

after handing over those tapes, Richard Nixon was forced to resign the

Presidency.

 

Richard Nixon resigned the Presidency because he was subject to criminal

process and that criminal process closed in on him and forced him to turn

over the evidence that condemned him.

 

This is one of those nights when we hope to turn to a constitutional

scholar of the highest authority and we can do that tonight, because

Harvard Law School`s Constitutional Law Professor Laurence Tribe, who has

argued countless cases before the Supreme Court, has agreed to join our

discussion.

 

Professor Tribe has taught constitutional law to students such as Barack

Obama, Ted Cruz, Elena Kagan, and Chief Justice John Roberts. And as we

just heard, former Inspector General Joel Brenner and now, it`s your turn

to take a constitutional law class with Professor Tribe.

 

Joining us now is Laurence Tribe, Harvard Law School Professor of

Constitutional Law. He is the co-author of To End a Presidency: The Power

of Impeachment. Professor Tribe, I give you the lecture hall for, can the

President shoot someone on Fifth Avenue and the Manhattan District Attorney

simply has to look the other way?

 

LAURENCE TRIBE, HARVARD LAW SCHOOL PROFESSOR OF CONSTITUTIONAL LAW: The

answer is no. We don`t have a Constitution, thank goodness, in which the

President is that much above the law. But in fact, the position that his

lawyers were taking today in the Federal Court filing is even more extreme

than that.

 

They have taken the position that the President`s company cannot be

investigated, that those who may have conspired with him to commit

financial and other crimes cannot be investigated, that the whole state

proceeding must be stopped in its tracks.

 

Among other things, there is a federal law going all the way back to the

founding actually to 1793, it`s called the Anti-Injunction Act, and it says

that no federal court can interfere with an ongoing state proceeding. So

when the judge finally has to rule on this outlandish claim, that you

cannot investigate criminality on the part of the President, his company,

and his cronies, the judge will have the obligation under the Anti-

Injunction Act 28 USC 2283 to dismiss the case, because it is not

permissible for a Federal Court.

 

It`s a principle basically of state`s rights, believe it or not, it`s not

permissible for a Federal Court to mess around with an ongoing state

criminal proceeding, simple as that. And so, what`s–

 

(CROSSTALK)

 

O`DONNELL: Professor, if that lawsuit - would it be different if that

lawsuit had been filed in New York State Court?

 

TRIBE: Well, that would then be making an equally absurd argument, but at

least they would be in the right forum. They`re trying to say that state

courts have to be kicked out of the picture, because after all the

President is a federal official. That doesn`t immunize him from state

process, it doesn`t immunize him from state proceedings.

 

There are only very limited exceptions to this Anti-Injunction Act. The

only one that could conceivably be relevant would be the Civil Rights Laws.

The Civil Rights Laws, if the President said this lawsuit that`s being

brought against me by Cy Vance violates my First Amendment rights or my

religious freedom.

 

Of course, it doesn`t. He made that argument there`d be a kind of window

that he could try to climb through. But in a case I argued and won in the

Supreme Court called Pennzoil v. Texaco in 1987, the US Supreme Court said

on behalf of one company that had lost a big judgment in a state court that

it couldn`t run off to federal court to kind of interrupt the state

proceeding.

 

The only way to get federal review of a state judgment is to let the state

proceeding run its course and then take their chances with asking the US

Supreme Court to review the result. But the most important point, even more

important than the fact that they`ve gone the wrong court in order to try

to hoodwink the judicial system, most important point is that they have

taken this outlandish position that says the President and all those around

him are above the law, they can`t be investigated for any crime no matter

how serious until the President is out of office.

 

Well, he`s basically inviting the country to kick him out of office so that

he can be held accountable to the law, and I think that`s very kind of him,

but I doubt that that`s his intention. It`s not a coincidence that this

happens on the same day that the whistleblower issue arises. Because in

that case as you point out, there is an odd provision that doesn`t allow

for any judicial review.

 

O`DONNELL: So we have the President taking the extraordinary position by

indirection through the Acting Director of National Intelligence that it

can withhold intelligence information of an urgent kind that goes to the

security of the nation from the intelligence committees of Congress, even

though an act of Congress says that that`s where the whistleblower should

go.

 

And it`s clear that his position now is nobody can do anything to me, they

can`t touch me, I have Article 2 on my side, I can do what I want. Congress

can`t touch me, they can`t ask questions of anyone who`s ever worked with

me or anyone who`s had anything to do with me, the state courts can`t

investigate me, the federal government can`t indict me, and Nancy Pelosi

doesn`t want to impeach me. So, I`m home free and I can get away with

murder.

 

That can`t be the law in the United States, that`s not why we fought a

revolution against a King just in order to get a tyrant. It`s astonishing

and hopefully this will finally wake people up and realize this guy has got

to go.

 

O`DONNELL: The President`s lawyers put this in writing in their complaint

today, they said state and local prosecutors have massive incentives to

criminally investigate the President to advance their careers or to damage

a political opponent.

 

We`ve had apparently 230 years of this massive incentive that has never

incentivized a local prosecutor before.

 

DONILON: Well we have typically selected Presidents who are not criminals.

This time, we may have missed the mark and we`ve selected a President who

seems to know no bounds. He violates the emoluments clauses, he enriches

himself at the expense of American taxpayers, he takes money from foreign

governments in order to benefit himself, he bends policy in the direction

of those governments, whether it`s Saudi Arabia or another country to

enhance his own wealth.

 

And now, we understand he may have been making some kind of deal with

Ukraine perhaps to get information of a negative kind about Joe Biden`s son

in exchange for aid to Ukraine. It`s treachery, if not treason, and it`s

bribery and it`s unacceptable.

 

O`DONNELL: Professor Laurence Tribe, thank you very much for joining us

tonight.

 

TRIBE: Thank you.

 

O`DONNELL: We all feel a little bit smarter now having shared some time

with you. Thank you very much professor.

 

TRIBE: Thank you Lawrence.

 

O`DONNELL: And when we come back, we have important very, very, very good

news tonight. This is going to be a really good, good news episode tonight,

about Isabel Bueso.

 

(COMMERCIAL BREAK)

 

(BEGIN VIDEO CLIP)

 

MARIA ISABEL BUESO, GUATEMALA IMMIGRANT: I`m asking Congress and

administration to come together and right the wrong of this change in

policy. This is not a partisan issue, this is a humanitarian issue, and our

lives depend on it.

 

(END VIDEO CLIP)

 

O`DONNELL: We have very good news to report tonight. Maria Isabel Bueso is

going to live. She`s not going to be sentenced to death by deportation,

which is what the Trump administration was planning to do to Isabel and

hundreds of other critically ill patients who are in this country for live-

saving medical treatment.

 

Democratic Congressman Mark DeSaulnier, who fought for Isabel Bueso`s life

because she lives in his Congressional district said in a statement

tonight, “In a major victory, the Trump administration will apparently

reverse course and resume the Deferred Action program, allowing hundreds of

deserving immigrants like Isabel Bueso to stay in the United States to

receive lifesaving medical care, and we`ll continue to press the

administration for answers and assurances that this program is safe from

future targeting and pursue our private bill to keep Isabel and her family

in the United States permanently, but in the meantime we breathe a sigh of

relief.”

 

The Department of Homeland Security said that it is resuming its

consideration of requests to stay in the country for life-saving medical

treatment “on a discretionary case by case basis.” And so, we`ll have to

continue to cover the decisions that the Trump administration is making on

a case by case basis about deporting people with life threatening

conditions.

 

Tonight, Isabel Bueso issued this statement. While we have not received any

official confirmation that our Deferred Action case will be approved, we`re

cautiously optimistic about this news. I`m so grateful to all the leaders

who spoke with me last week in DC and played a role to helping to reinstate

the Deferred Action program. We now wait to see whether our case will be

approved as well as confirmation-

 

END   

 

 

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