Show: THE RACHEL MADDOW SHOW Date: December 15, 2017 Guest: Edward Stanton, Paul Fishman
CHRIS HAYES, MSNBC HOST, ALL IN: THE RACHEL MADDOW SHOW starts right now. Good evening, Rachel.
RACHEL MADDOW, MSNBC HOST: Good evening, Chris. Thank you, my friend.
HAYES: You bet.
MADDOW: Much appreciated. Have a good weekend.
HAYES: You, too.
MADDOW: And thanks to you at home for joining us this hour. I`m doing something a little different, we are doing something special tonight and I think we have picked exactly the right night to do it. Just in today`s news the president went to the grounds of the FBI and as he was heading into the FBI where he spoke at an FBI ceremony, he proclaimed the FBI to be a disgrace, he was asked about the prospect that he might pardon his national security advisor Mike Flynn and he said, I don`t want to talk about pardoning Mike Flynn yet.
We then got sort of red flag thrown by Congressman Adam Schiff, who`s the top Democrat on the Intelligence Committee, who went public today with his concerns that he believes the Republicans in Congress are trying to end the House Intelligence Committee investigation into the Russia scandal by the end of next -- by the end of this month.
He says they -- he thinks they`re trying to wrap it up now and he was explicit about why. He said he believes that the Republicans view is that shutting down our investigation is a necessary prerequisite to shutting down Bob Mueller.
Thereafter, we learned that the president`s legal team is going to be meeting in person next week with Robert Mueller and his prosecutors. We`re not exactly sure why.
We then got confirmation from "The Wall Street Journal" that those subpoenas that had been reportedly sent to Deutsche Bank, which the president`s lawyers tried to throw cold water on, we got confirmation from "The Wall Street Journal" today that Deutsche Bank has in fact received multiple subpoenas from the Mueller investigation.
We then got further reporting from "The Wall Street Journal" that Wells Fargo has also received at least one subpoena from the Mueller investigation, perhaps as recently as last week. That may be important. It may also be the cause of anxiety in the White House because this president has described his business dealings and his financial dealings as essentially a red line for the Mueller investigation, one that he would not expect the Mueller investigation to cross.
So, all that happened today on the day we had planned to do a special thing. I think this means that one of my ancestors several generations back did something good one day because it`s paying off for me right now. As a show and for me as a host of a news program, we very often end up wishing that we had a lawyer or seven around who we could speak to for free, who would help make sense of daily developments, particularly in this scandal afflicting this presidency and that`s not just because it`s a legal scandal that involves prosecutors and defense teams,.
It`s just because there are a lot of parts of it that seem to be news but for those of us up -- those of us without law degrees, it doesn`t necessarily make sense, particularly it feels difficult sometimes to figure out whether some legal action that has happened in this scandal is a big deal or whether it`s just what happens in cases like this, it`s normal, don`t get too excited.
Because of that ongoing desire we have decided for this special RACHEL MADDOW SHOW tonight to gather here four of the best legal minds in the country who will answer our phone calls. We`re calling for a caveat there. This is -- we`re sort of thinking of this as TRMS law school, TRMS JD, if you want to be super obscure, TRMS esquire, if we`re feeling fancy.
Part of what we are going to do tonight is air out some of the questions that we`ve had as a staff about this scandal, but we`ve also solicited questions from you guys at home. We`ve got a good viewer questions -- got a good set of viewer questions to ask as well.
So, now, without further ado, joining us now are our professors for the night. There will be a quiz.
Chuck Rosenberg is former U.S. attorney for the Eastern District of Virginia. It`s a job he was appointed to by President Bush. Until a few months ago, he was the administrator of the Drug Enforcement Administration.
Barbara McQuade was President Obama`s U.S. attorney appointee for the Eastern District of Michigan. She is now a professor at the University of Michigan Law School, in addition to being a fake professor here tonight.
Edward Stanton was the U.S. attorney from the Western District of Tennessee under President Obama. He`s now in private practice.
And Paul Fishman, our point guard tonight, who was Obama`s U.S. attorney for New Jersey. He`s now a real-life law professor at Seton Hall.
Thank you all so much for being here tonight.
UNIDENTIFIED MALE: Happy to be here.
MADDOW: As you can tell from the rapidity of my speech, I`m very excited to have you all here. And this is going to be a little freeform. I have a lot of questions from our viewers. I have a lot of questions on my own, but feel free to tell me if I`m asking a dumb question or to jump in on each other I expect that you all will not agree on all of these -- on all of these matters, and so, feel free to fight it out if we come up with something that we don`t all feel the same way about.
Let me start by asking about the way the president made news today concerning national security advisor Mike Flynn. Mike Flynn has pled guilty to one count of lying to the FBI. The president said today he did not want to talk about pardoning Mike Flynn yet. I`m really interested in that yet as a matter of strategy.
If the president were to pardon Mike Flynn now, what would happen to the testimony that Mike Flynn has presumably already offered the Mueller team as part of coming to this plea deal? And am I right in assuming that he`s probably already given information to Mueller`s team?
CHUCK ROSENBERG, FORMER U.S. ATTORNEY FOR EASTERN DISTRICT OF VIRGINIA: I think you should assume he has. In fact I think you should assume, Rachel, he`s given a lot of information to the Mueller team. So, to answer your question if the president were to pardon Mike Flynn, there`s -- that doesn`t preclude the Mueller team from continuing to use information that General Flynn has.
MADDOW: OK.
ROSENBERG: In other words, it gets him off the hook for any crime he may have committed, but it doesn`t remove his obligation to give testimony should he be subpoenaed.
MADDOW: In terms of him testifying. I know that the calculus that Mike Flynn might have about continuing to cooperate with the government might change for him if he`s pardoned, if he knows they can`t prosecute him for anything anymore.
Would he end up testifying? I mean, he`s already given them information. They want to put him on the stand. Could they still put him on the stand? Would it affect that testimony in any way, the value of that testimony?
UNIDENTIFIED MALE: Well --
BARBARA MCQUADE, FORMER U.S. ATTORNEY: So, I say two things about that. One is, you can compel him to testify and you can require him to answer questions, but I think when somebody is being compelled, it`s very different from if they have an incentive to cooperate.
In that scenario, they would be volunteering information. They would be suggesting leads. They would -- could be connecting the dots for you. If instead you`ve got a pulled teeth to answer questions, you might get yes/no answers, he`ll answer the questions for you.
The other wrinkle here is even if President Trump can pardon Michael Flynn, he couldn`t pardon him from any state crimes they might be exposed to.
MADDOW: OK.
MCQUADE: So they could use that for leverage as well potentially.
MADDOW: OK. So that brings me to another question that I have been wondering about with Flynn`s deal. We got a great question from a viewer named Jim who wrote to us and said, why would a defendant ever agree to the plea deal that Flynn did? It doesn`t really protect him from much.
And I think what Jim is getting out there is that what is in the plea deal, what`s in the statement of the offense and everything is not very much information and maybe that means they just don`t have very much on Flynn but it`s my understanding that at least in some jurisdictions when you gets a guilty plea out of everybody, you lay out every single thing that you`ve got against them and you expect those plea agreements to be really juicy in terms of everything the government`s got. This was very thin.
PAUL FISHMAN, FORMER U.S. ATTORNEY: Well, even if you don`t write out in the plea agreement everything that the person has admitted to, because it`s -- let`s take a step back. When this -- when this conversation happens between Flynn or someone in Flynn`s position and a prosecutor, someone broaches the subject of a plea agreement and cooperation can come from the government, can come from the defense lawyer. But if the government is interested in Flynn`s cooperation, they want to know what he`s going to tell them before they sign the deal.
MADDOW: OK.
FISHMAN: And so, at some point before that plea agreement got signed, my expectation is that General Flynn first through his lawyers but then directly face-to-face with the agents and the prosecutors gave them information what we call a proffer, which basically says here what is what all the information I have. Here`s what I would say if I was called to testify, here`s what I`m going to say about my own conduct, here`s what I`m going to say about everybody else`s conduct.
And once that happens then the plea agreement is negotiated and the terms of the plea agreement are laid out.
What`s weird about this plea agreement is it in the context of that conversation, ordinarily, Mike Flynn would have been asked by Bob Mueller or Bob Mueller staff and the agents tell us everything you did, that`s the first thing they ask and the reason they asked that is that`s how they measure someone`s capacity for being truthful.
And so, if he told them everything that he did, then his lawyers say, OK, now that he`s told you everything he wants to be protected being prosecuted for all --
MADDOW: All those things that he just confessed to you, yes.
FISHMAN: Right. So, sometimes, the plea agreement will say what those things are, but sometimes the plea agreement will simply say that the government will bring no further charges related to all the information about General Flynn`s conduct, about which the government has information as of the date of this agreement. That phrase -- those clauses are missing --
MADDOW: Yes.
FISHMAN: -- from this agreement, and I`m watching Chuck nod. It`s really strange that it`s not there because he`s not protected from being prosecuted for all the other stuff they have investigated them for, whether he`s told them about.
EDWARD STANTON, FORMER U.S. ATTORNEY: Yes, and it`s very possible there`s nothing else there. I mean, to your earlier point then the government feels -- the special counsel feels that there`s nothing else today and they felt comfortable we`re going forward with the 1001 claim. You know, along those lines and I guess the 1001, I think it`s interesting what he pledged.
MADDOW: What is 1001?
STANTON: Thank you; 18 USC 1001, lying to government, to the FBI.
MADDOW: OK.
STANTON: It was a tool back in when I served as U.S. attorney that we use, not I guess frequently, but it was always a good resource to have often times when you may not -- could make a full case where there`s conspiracy. But it`s a good way to lock in a witness. I need them to cooperate very early in a case.
And so, I think a lot of that is what`s going on. You see the two guilty pleas that we have here. They`re both 1001 claims. And again, I think you guys would agree that`s not something that`s typically used all the time.
But it`s also a resource that in this case I think the special counsel has to lock in that testimony that proffer to find out what`s going on and to move forward with the investigation.
MADDOW: Barb, to your point about if Flynn were pardoned, that would be a federal pardon. The president can`t pardon anybody for state crimes. There`s also this line in Flynn`s deal that says that he has to cooperate with other federal state and local law enforcement authorities in any and all matters. And he has signed that.
Is that boilerplate? Is that in everybody`s plea deal?
MCQUADE: It`s not, and I think you have correctly detected what could be telegraphing, that this could be for, for example, a state attorney general`s investigation. We`ve heard reports that the New York attorney general might be investigating some matters around Paul Manafort if necessary. That could expand to other crimes as well.
I don`t know that there`d be state jurisdiction over everything that`s going on, but certainly it parallels many things. Most states have a computer fraud an abuse statute, for example, if that becomes one of the crimes.
So, if they have to shift gears and move into that state realm to avoid a pardon scenario, I think Robert Mueller is seeing those chest moves on the board.
MADDOW: OK, let me ask you about one other part of the Flynn reporting or at least around this deal that I just don`t -- I get as a matter of drama, but I don`t get as a matter of law. A lot of people are saying that General Flynn has been really, really acutely interested in protecting his son from being prosecuted. His son, as far as I know, just had his first child, he worked with his father closely at the Flynn Intel Group.
I get the human drama of this. What I don`t get is how a person can trade their own information for somebody else`s liberty? Can you pass your -- can you pass your get-out-of-jail-free card to somebody else?
ROSENBERG: Not typically, it`s rare. I`ve seen it once or twice, where I have so much information that is a value to the government that I might be able to trade it for Barb`s freedom.
Now, it`s not encouraged, it`s unusual, it can happen. But can I make one other point about --
MADDOW: Sure. Yes.
ROSENBERG: -- about the Flynn son.
I think this is important about, Rachel. A lot of people have been talking about how the Mueller team was leveraging the son or using the son to get the father. They were playing one off the other.
I don`t think good prosecutors actually think that way. Let me tell you how I think good prosecutors think.
MADDOW: Yes.
ROSENBERG: It might be the case that the child, the son, committed a crime, and the fact that you`re looking at him puts pressure on the father. But you don`t do it for that reason. You have to make an independent judgment about each defendant.
Here`s what I mean: let`s say you charge them both and you only charge the son to leverage the father. That was the only reason you charge them.
And then something happens to the father. He gets hit by a bus. He`s not there for trial. Can you bring that case against the son as a standalone case in front of a jury of 12? And if the answer is no, you don`t charge them?
MADDOW: Yes.
ROSENBERG: And so, I think sometimes to talk about using the son to leverage the father is a little bit glib. I think you make -- I think good prosecutors and Bob Mueller is a good prosecutor -- you make independent judgments about each defendant. It might be the effect -- it might have the effect of putting pressure on the father, but that`s not why they did it.
FISHMAN: Let me add two other quick points to that. I think, one, is sometimes it happens that when someone comes in to cooperate and get what we call debriefed by the government about all their information, sometimes part of their proffer is -- by the way, my son didn`t know anything about this or and so, sometimes the decision not to prosecute a family member is made reasonably by the prosecution team.
MADDOW: Intrinsically.
FISHMAN: Intrinsically, right, that`s one thing.
ROSENBERG: That`s right.
FISHMAN: And so, I think it`s important to keep that in kind of -- the second is this, if in fact there is an understanding unwritten in the plea agreement that General Flynn son will not be prosecuted because of this deal, the government will have to disclose that fact to any defendant against whom General Flynn might ultimately testify, so that General Flynn can be cross-examined on whether he is actually in fact being a truthful because --
MADDOW: Explain how that would work. I`m sorry.
FISHMAN: So, at some -- let`s say General Flynn ends up testifying in the Paul Manafort trial.
MADDOW: OK.
FISHMAN: And Paul Manafort`s lawyers would be entitled to be told, Manafort himself would be entitled to be told by the government that part of Flynn`s deal is not actually in the agreement. Part of the deal is that -- and because that would go to the question of Flynn`s culpability and whether his and whether he`s actually gilding the lily or embellishing this testimony or hiding facts in order to protect his son. And so, they would be entitled to know that if that`s part of the deal as unwritten as it might be.
MADDOW: On the proffer in terms of what Flynn offered, is that something that he just does in a conference room with these prosecutors? Does he -- does he testify to the grand jury at any point?
FISHMAN: He could.
MADDOW: Yes.
FISHMAN: The first thing that happens is it`s a proffer, and the proffer can be used for certain things not others. It can`t simply be introduced by the government in a case as an admission or a confession by Michael Flynn. This is what he`s testified to ladies and gentleman, and therefore you should convict him of X. Can`t use it for that.
MADDOW: OK.
FISHMAN: It can be used for other things if he later testifies inconsistently with what he told the government. They can cross-examine him with the fact that he said something different. But I will say this -- my expectation is but if I`m Bob Mueller and if I`ve just heard the president United States imply that he`s thinking about a pardon for Mike Flynn, I`m getting Mike Flynn into the grand jury and testify under oath as quickly as I can so that that testimony, whatever testimony he`s going to give, his lockdown.
MADDOW: All right. One last question for you on Flynn and then we`re going to take a quick break. We got a question from viewer Gene and Gene wants to ask: what if any are the liabilities incurred by White House staff other than the president for failure to act upon the security warnings with regard to Flynn?
So, this is about the days between the warning from Acting Attorney General Sally Yates about Mike Flynn being compromised by his dealings with the Russians, 18 days that he lapsed before the White House apparently acted on that warning and asked for his resignation.
I`m wondering specifically about his security clearance. Is -- if you are under FBI investigation, if you were under criminal investigation aren`t they supposed to yank your security clearance? Once the White House was notified that he was under investigation, shouldn`t they have pulled that?
ROSENBERG: So, the answer depends in part, Rachel, I hate to be a lawyer here.
(LAUGHTER)
ROSENBERG: But it depends in part on what it is he`s under investigation for and what the Justice Department conveyed to the White House.
MADDOW: OK.
ROSENBERG: Right? So, the answer is perhaps -- not automatically, perhaps. And there are remedies in between letting him keep his clearance and pulling it, right, so you could exclude him from certain topics. If we`re talking about X, and he doesn`t get to sit in on X, right. There`s a whole range of things that they can do.
To Gene`s question, would somebody in the White House have liability -- I guess is the question -- for failing to act on that knowledge?
The answer is probably not criminal liability, unless they`re doing it to cover something else up. And you could spin out a scenario where that might be the case, but in the more typical case, if someone failed to act, then they too in theory could lose their clearance if they weren`t doing all they could to protect national security information.
So, good question, highly fact-dependent.
MADDOW: OK.
FISHMAN: And there`s one twist to it too which, of course, is that I believe the public reporting is that the Don McGann briefed the president on Thursday, January 26th or the next day about the fact that Sally Yates had said, we believe that General Flynn was not telling the truth about his -- about his denying talking to the Russians about sanctions.
So, if people didn`t yank the security clearance and it was the president`s decision -- it`s hard to imagine how everybody else -- it`s the president openly gets to make that decision.
MADDOW: Right. The president basically has unilateral authority over security clearance decisions, even if they`re really bad decisions.
ROSENBERG: That`s right.
MADDOW: Chuck Rosenberg, Barb McQuade, Edward Stanton, Paul Fishman are sticking around. Much more of TRMS law school in just a moment. You haven`t even finished your first year yet, we`re not even to torts. Lawyers love that.
(COMMERCIAL BREAK)
(BEGIN VIDEO CLIP)
REPORTER: Would you consider a pardon for Michael Flynn?
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I don`t want to talk about pardon to Michael Flynn yet. We`ll see what happens. Let`s see.
I can say this: when you look at what`s going on with the FBI and with the Justice Department, people are very, very angry. Thank you very much, everybody. Thank you.
(END VIDEO CLIP)
MADDOW: The president also today said that he was going to rebuild the FBI. After describing the FBI`s a disgrace, he said, we`re going to rebuild it.
Joining us again is our all-star group of former U.S. attorney`s and Justice Department officials: Jack Rosenberg, Barbara McQuade, Edward Stanton, and Paul Fishman.
Thank you all for doing this.
So, the president today did go hammer and tongs against the FBI, described the FBI as a disgrace. He said, we`re going to rebuild the FBI.
I want to add to that, the fact that Republican Congressman Trey Gowdy, he was the head of the oversight committee, he said last night that he would be, quote, a little bit surprised if FBI Deputy Director Andrew McCabe is still an employee of the FBI this time next week. He was asked about Mr. McCabe and his expected testimony in Congress, and he basically said he expects him to be fired before next week.
Here`s my question: with the FBI under this kind of political attack, I know they`re always described as independent, but how independent are they? Who could fire the FBI director and the FBI deputy director? Who could influence decisions within the FBI from outside the FBI?
MCQUADE: Well, I think they are truly independent. I mean, you can -- they can be fired, you could fire the director and you could keep going down the line. But with 3,500 employees, at some point, the buck is going to stop.
I worked with FBI agents for over 20 years, and they are the most professional, dedicated to mission people that I`ve ever met. That`s why I find this attack on the FBI to be so harmful. In self-interest, President Trump is trying to undermine the public credibility of the FBI for this case. But the effect he`s going to have is to undermine public credibility in every case.
I think if he asked agents, they`re not going to care much. They`ll say, I`ve got thick skin, I can take it. But in terms of all of the thousands of cases that are pending around the country, bank robbery cases, white- collar crime cases, the jury is hearing the president of the United States say that the FBI is a disgrace, what does that do to their confidence when they`re deciding the outcome of all of those thousands of cases across the country?
And so, I think this is incredibly anti-law enforcement and pro-criminal to make these kinds of statements.
MADDOW: Edward, you were an outside the beltway U.S. attorney in the western district of Tennessee. When Barb says that this is going to be nationwide implications, this is across law enforcement, this is not kind of an Acela corridor conflict here, does that ring for you with somebody who prosecuted cases in Tennessee?
STANTON: I`m concerned about the morale within the bureau. As Barb mentioned, you have dedicated men and women that do a great job no matter who`s in the White House. It`s not a red or blue way to be a FBI agent, but to serve. And it strikes -- I`ve had conversations and it really strikes at the morale of going in every day and doing the great work on the behalf of the country.
And so, that`s the biggest piece when you hear these rumblings -- to answer your earlier question you know who can you know fire the director, I mean, obviously, we`ve seen this with the president.
MADDOW: Yes.
STANTON: But --
MADDOW: Could the attorney general fire the FBI director?
STANTON: I don`t know if there`s any precedent.
ROSENBERG: No, I think it would`ve come from the president. But to Ed`s point and, Ed, you were probably going in this direction -- the FBI is 35,000-plus strong. But one of the strengths of the FBI is that its political layer is so remarkably thin. By that I mean, how many of those 35,000 employees are political appointees? The answer is only one.
MADDOW: Yes.
ROSENBERG: Every other man and woman in the FBI is a career civil servant. So, it`s --
MADDOW: Will you describe for our audience your role at the FBI in the past?
ROSENBERG: Well, two roles. I had the privilege of working for two directors. I work for Bob Mueller in 2002 and 2003 as counsel to the director. And from 19 -- I`m sorry, 2013 to 2015, I`m not that old, I work for Jim Comey as his chief of staff.
So, I got to work with these men and women. They`re extraordinary. I can`t prove to you here that the FBI is not in tatters. I can tell you they`re not. I know they`re not.
But I think to Barb`s point, I have a potential solution. The courthouse doors in America are open to every citizen. Every single courthouse in America is open to the public. Go watch a trial, watch these men and women testify, look at the cases they put together. You can decide for yourself, you don`t have to believe us, you can decide for yourself whether or not the FBI is in tatters.
I can tell you. It is an extraordinary, vibrant, smart, proud, an independent organization, but you can go find out for yourself by watching their work.
MADDOW: So, what happens when we get an attack like this on the FBI? Obviously, I hear you, Edward, when you said that you`re really worried about morale, given the important work and important national security work of that as an agency. But what`s the consequence?
I mean, we all at this table agree that it`s a dangerous thing, but I don`t -- I don`t know what happens because of it. I don`t know what the consequence is, and I don`t know if I should be worried about what the FBI as a very powerful agency might do in order to stand up for itself when it feels like it`s under attack in a way and it hasn`t been in generations?
FISHMAN: Well, I think one potential place where this could have some effect, although I`m optimistic that it won`t, is in the FBI`s relationships with other law enforcement organizations both in the United States and around the world, right? I mean, we tend to think of the FBI as investigating bank robberies and white-collar crime and the kinds of things we`ve all just alluded to, but the FBI has an enormous role in counterintelligence and counterterrorism, working with state and local governments all across the country and their counterparts all across the world.
And if those people think that the FBI is not going to get backed by the president of the United States, that`s a problem. I`m hopeful, certainly, in the United States where those relationships are built on long personal relationships between police chiefs and sheriffs and local cops and then special agents of the FBI, that those relationships will in fact remain quite strong.
And I think you will also see and I hope you see those law enforcement organizations basically saying, wait a minute, they`re actually really talented, they`re really helpful, they work really well with us, and they`re really qualified to do what they do.
MADDOW: One -- there`s been controversy this week very politicized controversy about text messages between an FBI law -- Justice Department lawyer? FBI -- at least the page was a Justice -- FBI lawyer, excuse me. An FBI lawyer and a senior FBI counterintelligence official named Peter Strzok and Lisa Page and there is a lot of controversy as to why their personal text messages to one another were made public.
Setting that aside for the moment, Peter Strzok was part of the Mueller investigation. He was reportedly taken off the Mueller investigation when the inspector general of the Justice Department became aware of these text messages, apparently showed them to Mr. Mueller and then that was the end of Peter Strzok`s time on the Mueller investigation.
Here`s my question: what does a counterintelligence senior official at the FBI do?
I understand what agents do because I`ve seen "The Americans", and so I think I`m a genius about these things and I`ve got complete control. But in being a -- being the number two official on the in the FBI on counterintelligence, what`s his job? What does he do? How big a loss is it regardless of the whether or not it was a good thing that he was taken up the investigation, how big a loss is it that he`s not on there?
ROSENBERG: So, first principles: the FBI is also an intelligence agency. A lot of people don`t appreciate that they`re dual headed. We know them, of course, from the movies as a law enforcement agency, but they`re also an intelligence agency. They`re part of the intelligence community. They collect intelligence. They share that with other members of the U.S. intelligence community.
And so, what does an FBI senior counterintelligence agent do? Some of that. Where do you get intelligence? Well, lots of different ways, lots of different sources for signals intelligence, there`s human intelligence, right? There`s a whole bunch of different ways.
And one of the jobs of the FBI, just as at the CIA or the NSA, is to synthesize that intelligence and give it to the operators. Sometimes you give it to people in law enforcement so they can do their jobs better, right? And sometimes, you give it to other people in the intelligence community so they can do their jobs better.
And when it works well and it often works very well, Rachel, all of the intelligence community is sharing information with one another and enhancing each of their missions
So, senior FBI officials would oversee that process, the collection and dissemination of intelligence, which is really just the fancy word for information.
MADDOW: But counterintelligence is about other countries, right?
ROSENBERG: Well, so they also -- and I can`t go into great detail here -- but yes, it is.
MADDOW: Yes.
ROSENBERG: And they also have a responsibility for collecting intelligence that, you know, from foreign governments.
MADDOW: OK. See this is important stuff.
We`ll be right back. Formal federal prosecutors and Justice Department officials Barbara McQuade, Edward Stanton, Paul Fishman, Chuck Rosenberg are here. We`re -- you`re not yet to your second year but we`re getting there. Stay with us.
(COMMERCIAL BREAK)
MADDOW: You guys don`t know what`s coming. Ready?
We`re going to go down the line. Chuck Rosenberg, who plays Muller in the movie?
ROSENBERG: Can you come back to me and I`ll answer at the end.
MADDOW: Yes, I`ll come back to you after Barb, though. You only get on extra.
Barb, you have to bet, does Trump pardon Flynn?
MCQUADE: No.
MADDOW: Edward? Oh, no, I have to come back to you.
Who plays Mueller on the movie?
ROSENBERG: George Clooney.
MADDOW: Ooh. Yes, I can see it. There is a cheekbones issue. But --
ROSENBERG: George Clooney.
MADDOW: OK, I can see it.
ROSENBERG: That`s my answer.
MADDOW: Edward, you have to bet. Will Trump fire Mueller?
STANTON: I`m not a betting guy but I will say no.
MADDOW: Paul Fishman, if Edward is wrong, and the president fires Mueller, who will you text about it first?
FISHMAN: You.
(LAUGHTER)
MADDOW: Perfect.
We`ll be right back.
Thank you.
(COMMERCIAL BREAK)
MADDOW: You know those magic eight balls, you shake them, and they tell the future? Tonight, we have a human twister equivalent of a magic eight ball, only for legal questions. And we promise, we will not shake them.
Former U.S. attorneys Chuck Rosenberg, Barbara McQuade, Edward Stanton and Paul Fishman, thank you again.
We`re just talking in the lightning round about the prospect of the president trying to end Mueller`s investigation by firing the special counsel.
Aside from the prospects of how exactly the president would have to go about that and who he would have to fire and Saturday Night Massacre and all that stuff -- if by hook or by crook, Robert Mueller was dismissed tomorrow, viewer Jeff wants to know, what would happen to Flynn`s guilty plea? What would happen to the Paul Manafort indictment? What would happen to the Justice Department`s on going involvement in guilty pleas and sentencing with these people who`ve been brought up thus far?
MCQAUDE: Well, I always say the mere firing of Robert Mueller does not necessarily end the investigation.
MADDOW: OK.
MCQUADE: For one, he can only be fired for just cause -- misconduct in office, conflict of interest and the like. If he were to be fired beyond that, I suppose there could be some reckoning to go along with that, for the person who makes the firing decision.
MADDOW: What do you mean by that?
MCQUADE: Well, I think there would be a lot of outrage if he were just fired on a whim and there was no finding misconduct. Rod Rosenstein has said that he`s the one who hired him, he`s the one who can fire him, and he won`t fire him except for just cause.
And I believe that, and I think that`s where Rod Rosenstein stands.
But to answer your question: what happens to the investigation? I think the investigation continues. It existed before Robert Mueller was appointed. It was going on in the Eastern District of Virginia, I think it would continue. Just the question is under who`s jurisdiction? Would a U.S. attorney pick it up? Would some other member of the Justice Department pick it up, or would there be a new special counsel hired?
MADDOW: If the Justice Department hierarchy, Rod Rosenstein was persuaded not only that Robert Mueller deserved to be fired, but that the whole special counsel investigation was bunk, was the person overseeing it he could end it if he wanted to, right?
FISHMAN: Well, you can end the investigation. I mean, the deputy attorney general I suppose can order the investigation and he can order prosecutors to dismiss the case, but I don`t think -- that`s not what Rod Rosenstein`s going to do here. If he`s ordered to fire Mueller and if he doesn`t quit before he carries out that order, we couldn`t have these cases and these investigations.
And it`ll be up to him to decide where in the Department of Justice they go. Whether they get sent to Chuck`s old office, in the eastern district of Virginia, in the Manafort case, or to New York, to the southern district, or eastern district of New York, whether they get sent to the criminal division of the Department Justice.
But they`re not going to go away just because Bob Mueller is not of a helm.
STANTON: Yes, and I don`t think, Dean Maddow, that this would -- when you said persuaded, knowing Rod Rosenstein like we do, having served as a U.S. attorney for Maryland, Rod is someone who is -- unquestionably has the character, the independence to serve. He served in two different administrations. And so, again, I`m not sure that -- I am sure that he cannot be persuaded.
I think -- knowing Rod that way I do, I think he would step down the attorney general before being persuaded or influenced to direct an investigation one way or the other.
MADDOW: On that point, were you at all rattled given those feelings that you have about Rod Rosenstein, were you at all rattled when he okayed the release of those FBI officials personal texts, despite the fact that there`s this ongoing inspector general investigation?
STANTON: I`m not sure that I`d say rattled. Again, not knowing all the facts and circumstances, what I think that what the Deputy Attorney General Rosenstein, what he wants to do is avoid the appearance of impropriety. I think he understood that this information was either going to be leaked or shared with members of Congress, and to get in front of that, to assure the public trust and confidence that this investigation, there may have been the wrinkle and it was dealt with, but to get in front of it and as oppose it being an even larger story that there`s a cover-up of activity that`s untoward or even illegal.
MADDOW: Chuck?
ROSENBERG: But I had something -- so I agree with that, but there`s something about that that troubled me. I don`t think I was rattled but I was troubled. Let me tell you why.
The way we view our justice system sort of turns on two factors. One is that outcomes are fair and just if you rob a bank, Rachel, and you`re convicted for robbing the bank, that`s a fair and just outcome. But there`s a second way that we sort of measure our justice system, it`s our perception of fairness. You rob a bank, you`re convicted of robbing the bank, but the prosecutor is talking about his disdain for tall white women with dark hair, and he`s been doing that for 20 years.
So, you`re justly convicted, but people doubt that the process has the integrity that it ought to have, right? So, you need the perception of the system to be fair and you need the system to actually be fair.
And here`s the problem with the text messages: it answers one of those questions or it pretends to answer one of those questions. It suggests that the process is not fair.
What I was hoping would happen is that the inspector general would put out a report telling us about everything. There was a bad perception. Perhaps they shouldn`t have written what they wrote. I`m not convinced that, you know, the First Amendment argument gets us out of this thing meaning that they can write whatever they want whenever they want to write it. They ought to be more circumspect.
But if those texts come out in context, then the I.G. could also tell us that the outcome was fair.
MADDOW: Right.
ROSENBERG: In other words, they should have written these things. They should have been more circumspect, Rachel. But there`s no reason to think that the outcome was tainted. And so, that`s the problem with just releasing the text without the context for them.
MADDOW: And without a sense of how this is going to impact the country in an ongoing way that outside this -- even outside this case.
ROSENBERG: Right.
MADDOW: I want to ask you some a few one-off questions that we got from our viewers that are I think super interesting and also very specific.
Rita wants to know about non-disclosure agreements in Trump world. It appears that anybody who has ever been associated with Donald J. Trump has been forced to sign an encompassing non-disclosure agreement. Are these null and void when a case of testimony before an investigative body, can witnesses refuse to answer certain questions to avoid liability as might be outlined in one of these non-disclosure agreements?
FISHMAN: I think in a in the context in that we`re talking about here tonight, which are federal grand jury investigations and potentially federal criminal trials, a federal subpoena will trump those NDAs.
MADDOW: OK.
And would a person fight that out and have the court decide it or would --
FISHMAN: Likely yes.
MADDOW: OK.
Another very specific question on the president`s tax returns. Can a special counsel access the president`s tax returns if it is germane to his investigation? If he wants to, who does he have to convince of the germaneness of those tax returns in order to get them?
MCQUADE: Yes, there is a under the federal rules. There`s a statute, we always refer to it as an "I" order after Title 26, 6103 sub-I of the code. It says that you have to apply to a magistrate judge and you have to convince that judge that there`s reasonable cause that a crime has been committed that the tax records are relevant to that investigation and that you can`t get the information that you need by any other means.
And if you can satisfy a judge that that standard has been met, then you can get an order to get the tax returns?
MADDOW: And does the target of that order find out when that`s happened?
MCQUADE: No.
MADDOW: Or the IRS just release it?
MCQUADE: Yes, the IRS would turn it over, because otherwise, that would compromise the integrity of the investigation if the target which were to know about it.
ROSENBERG: And Barbara is exactly right, in fact right to the correct paragraph of the statute. But I would add, this is an extraordinarily ordinary thing for white-collar prosecutors to do. Meaning it happens all the time.
MADDOW: And no extra hurdles for a being the president?
ROSENBERG: Well, it might cause the magistrate judge, it might cause her to sort of read it just a little more carefully and take a little more time. But the standard is the standard. The standard doesn`t change for the president or for you or me.
And so, as a white-collar prosecutor, I can tell you, it`s a very logical place to start. Why? Well, my colleagues all know this -- it gives you a ton of leads.
FISHMAN: Yes.
ROSENBERG: Where`d the money come from? Where`d the money go? And where -- to whom do you issue subpoenas for more information?
And so, I don`t know that they got the tax returns, but I know what white- collar prosecutors do and they get tax returns.
STANTON: Follow the money, yes.
MADDOW: Follow all the money, yes, that`s what we do in news, too.
One more question before we have to take a break and again, it`s a very specific question I think I know what the answer is but then I talked myself out of it. So I thought I should ask the pros.
Jared Kushner has reportedly met with Mueller`s investigators. That is not true as far as we know of Donald Trump Jr., Vice President Mike Pence or the president himself. Does that mean -- for all of us observing this -- that Jared Kushner likely has more to worry about than those others do? Do prosecutors sometimes bring charges against people without ever meeting with them and questioning them first?
FISHMAN: All the time.
MADDOW: Really?
FISHMAN: Yes, because lawyers who represent those people don`t want to bring their clients in to talk to the prosecutors under those circumstances. Nothing -- if your client is someone who is likely to be indicted, nothing -- almost nothing good can happen when you bring your client in to talk to the prosecutors and have the prosecutors take a free shot at finding out what the -- that perspective defendant`s story is likely to be.
MADDOW: So, should we see Jared Kushner as being more out of the woods then because this lawyer put him in with prosecutors?
FISHMAN: Under some circumstances, I would say yes, but here the answer I would say is no, because often there are three people you just mentioned who can`t say no if Mueller asks -- Jared Kushner, because he works in the White House, the vice president because he`s the vice president, and the president.
MADDOW: Why can`t they say no?
FISHMAN: Legally they can say no, but politically they can`t say no in my view. I think it would be untenable for them to say, I was asked to be interviewed by the special counsel, we`ve pledged full cooperation and we`ve decided that we`re not going to go.
Donald Trump Jr. may be slightly different because he`s not a government employee. And so for him, the risks are a little less. But under those circumstances, I think that you can`t really draw that conclusion at this - - at the moment.
MADDOW: I knew you`d know and I should mention that we do know that both the vice president`s lawyers and the president`s lawyers have met with Mueller`s team, even if the vice president and the president themselves have not.
All right. We`ll be right back. Stay with us.
(COMMERCIAL BREAK)
MADDOW: -- Edward Stanton and Chuck Rosenberg, all former U.S. attorneys and Justice Department officials.
Here`s a question. This is from viewer Carroll and we got similar question from viewer Kimberly.
I`ve heard that the special counsel can`t indict a sitting president. Question: what if the crime was committed before he became president, say money laundering? If the president is guilty of money laundering or any other serious crimes prior to taking office, could he be convicted of those and sent to jail? Specifically, I want to know, are there circumstances where he could be incarcerated?
(LAUGHTER)
MADDOW: Anybody want to take that one?
STANTON: You know, I think to what was mentioned earlier, Chuck mentioned it, it depends, and I think the statute of limitations, that`s the first place you want to watch, or look.
MADDOW: How about money laundering, what kind of statute of limitations is that? It depends, I suppose?
FISHMAN: Probably (ph) five, unless they`ve changed to the statute, I think.
(CROSSTALK)
FISHMAN: Yes, there`s plenty of time for that.
MADDOW: OK. But if it was within the statute of limitations?
MCQUADE: Well, there`s still that Office of Legal Counsel opinion from the Watergate era that says a sitting president cannot be indicted. It`s never been tested in court. We don`t really know the legal limits of that, but I would submit that Bob Mueller who has agreed to follow all of the rules and policies of the Department of Justice probably would not indict the sitting president for any crimes -- those that occurred during his administration or before.
Now, he could be charged after he leaves the White House, so long as the statute of limitations has not expired.
MADDOW: Everybody feel the same way about that, think there would not be an indictment?
FISHMAN: Well, that -- you know, the there is a legal opinion from the Office of Legal Counsel, but it`s not the in-depth well researched kind of opinion that OLC typically issues. And so, it might be that somebody -- and the Watergate independent counsel had a different view on that question. And so, while I tend to think that Bob Mueller would like to follow that particular advice, if that`s the advice it came out of the Office of Legal Counsel, I wouldn`t be surprised given the people he`s got on his staff for them to take another look at that and see whether that is reasonable under the circumstances.
MADDOW: Around the issue of potentially indicted the president especially because of that ambiguity around whether or not it`s possible, and around the issue of the president trying to end the Mueller investigation somehow by firing people or doing something else, we got a lot of questions about what is a constitutional crisis? People use constitutional crisis as they go to hyperbole for describing something gone terribly wrong, but what is it?
I mean, what`s the difference between a constitutional crisis in your standard Tuesday political crisis? And is there anything going on in this investigation that people are worried about realistically in this investigation that might rise to that level?
FISHMAN: Well, I actually think the question of whether the president gets indicted or not is a constitutional crisis, because it involves a question of constitutional interpretation and constitutional law on which there are differing views, sharply different views and well-thought-out views on both sides. I think what if Bob Mueller gets fired if the president, if he makes a referral to the House Judiciary Committee for impeachment, I don`t know that I would characterize it as a constitutional crisis as much as I would a political crisis, which the president the United States, his fitness to lead under particular circumstances is being questioned, and Congress is being called upon to undertake a particular remedy in a particular time.
MADDOW: If the president, you know, gets indicted, Bob Mueller issues an indictment, and the president refuses to acknowledge its existence, or its validity is -- who settles that?
ROSENBERG: Well, see, constitutional crises are subject to being settled, where, by the Supreme Court of the United States and so maybe a better way of describing what we sort of colloquially refer to as a constitutional crisis is a constitutional question. And so far, including President Nixon, everybody has abided by the rulings of the Supreme Court of the United States. That seems to be a fundamental sort of principle of our country.
I hope and even predict that we will continue to abide by the rule of law.
MADDOW: Every time he stands underneath that Andrew Jackson portrait, you know that`s what I worry about.
ROSENBERG: Well, but again -- you know, crises are something -- the word "crisis" might be a little bit overblown here. It is susceptible to debate and to resolution by the Supreme Court of the United States.
MADDOW: We`ll be right back. Stay with us.
(COMMERCIAL BREAK)
MADDOW: All right. One last question for our dream team here.
Paul Fishman, I`m going to start with you, but I`m going to ask you all the same question.
We know the president, because he`s very bright and he has great taste, he watches a lot of cable news. On the off-chance that he is watching right now, I want him to be able to benefit from your expertise, as well.
If the president is watching right now and you could give him a small piece of advice, legal advice or just advice, what would you tell him?
FISHMAN: I would tell him to lower the temperature.
MADDOW: What does that mean?
FISHMAN: I mean, I would tell him to stop taking shots at the FBI, stop taking shots at the special counsel. I think it`s not going to help him with the investigators and I think it`s not going to help him ultimately with the public.
MADDOW: Edward?
STANTON: I`d say that Bob Mueller, Rod Rosenstein, the reputations proceed them.
MADDOW: Yes. Yes.
Barb McQuade?
MCQUADE: I would tell President Trump -- this investigation is not about you. This is a counterintelligence investigation about the country and our fair elections. Quit undermining the investigation and fully cooperate.
MADDOW: Chuck Rosenberg?
ROSENBERG: And to respect the men and women of law enforcement and the intelligence community. These are folks, these are extraordinary public servants and they deserve all of our support.
MADDOW: Chuck Rosenberg, Barbara McQuade, Edward Stanton, Paul Fishman, all eminent public servants, each of you in your own right and collectively quite an overwhelming dream team here. Thank you so much for spending this hour with us. I`ve learned more than I can recuperate from for quite sometime. Really.
FISHMAN: Thank you for having us.
MADDOW: All right. And thanks to all of our viewers for your excellent questions. You`re now graduated from law school, so go ahead and practice law. Take it from me. I`ll send you a note.
That does it for us tonight. We`ll see you again on Monday.
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 BE UPDATED.
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