Show: THE RACHEL MADDOW SHOW Date: November 20, 2018 Guest: Jim Baker
RACHEL MADDOW, MSNBC HOST: Have you mentioned to people that podcasts are fun to listen in the car on long drives?
CHRIS HAYES, MSNBC HOST I haven`t. But that also is true, or when you`re walking the dog or when you`re doing chores or when you`re cooking.
HAYES: All great podcasting opportunity.
MADDOW: For example, we should think of those things if we think of it. Thanks, my friend. Much appreciated.
And thanks to all at home for joining us this hour. There has been a lot of fairly heavy news that has broken today and into tonight.
I want to tell you at the outset tonight that we have two guests on the show here this hour, both of whom are former very senior FBI officials.
Now one of these guests who we`re going have tonight is someone who you have met before. He has been on the show a number of times. That`s Chuck Rosenberg. Chuck Rosenberg is going to be here to help us get through a number of different legal stories that broke this evening, all related to the Trump administration, including some very puzzling new news about Robert Mueller and the special counsel`s investigation. Chuck Rosenberg is in New York tonight. He is going to be joining us in studio a little later on in the show.
But I also need to tell you we`re going to be joined tonight by another very senior former FBI official who you have not met before, who has never done this type of interview before. In just a few minutes, we`re going to be joined by Jim Baker. Jim Baker was the general counsel at the FBI, meaning he was the top lawyer at the FBI. He left that position earlier this year in May.
He`s one of the handful of former senior FBI officials who was personally briefed by FBI Director James Comey about Comey`s troubling interactions with President Trump concerning the Russia investigation before Trump ultimately fired James Comey. This interview tonight is going to be the first time that I have ever spoken with Jim Baker. It`s likely to be the first time you have ever seen him speak full stop -- very, very much looking forward to having him here. I`ll tell you specifically what we`re going to be talking with him about in just a second.
But as I mentioned, there have been a lot of very heavy news stories that have broken today. In the early afternoon today, the White House put out a stunning and honestly, sort of strange statement about Saudi Arabia and the murder of a Virginia resident and "Washington Post" journalist named Jamal Khashoggi. A couple of days ago, "The Washington Post" was first to report and then a number of other news outlets subsequently were immediately able to confirm that the CIA has concluded that the murder of Jamal Khashoggi was ordered by the ruler of Saudi Arabia, by the country`s crown prince.
I think it`s fair to say now that we now know why those CIA findings about this murder of a U.S. journalist were leaked to reporters in advance of this White House statement today from president Trump, because, of course, president Trump was inevitably going to side with the murderers of this U.S. journalist. Of course he was going to try to cast doubt on any evidence that Saudi Arabia in fact did this.
I don`t want to get too deep into the politics of leaks in the service of national security, but because the CIA findings of Jamal Khashoggi`s murder were leaked a couple of days ago, we know thanks to those leaks that the president of the United States today defied the findings of America`s own intelligence community. He`s actually publicly lying about whether or not the U.S. government and its intelligence agencies have concluded with any certainty that Khashoggi was murdered and by whom.
Now that the president has put out this statement being like hmm, guess we`ll never know who killed him, we`re certainly not going to blame Saudi Arabia, now that the president has put out that statement, now we know why the CIA findings that Saudi Arabia and its ruler definitely ordered that murder, why those findings were leaked a couple of days in advance of this statement. Now, we`re left to figure out why the president is telling that lie, why he is going so far out of his way to cover for the country and specifically the ruler that carried out this killing of a U.S. resident and U.S. journalist.
Publisher of "The Washington Post" said tonight in response to Trump`s statement, quote, the Central Intelligence Agency has thoroughly investigated the murder of this innocent journalist and concluded with high confidence that it was directed by the crown prince. If there is a reason to doubt the findings of the CIA, President Trump should immediately make that evidence public. Again, that`s from the publisher of "The Washington Post" tonight.
Khashoggi`s editor at the post was even more blunt tonight. Quote: Trump is doing his best to help the Saudi regime get away with the murder of a U.S. resident, and one of the Arab world`s most prominent writers. From Trump`s failure to condemn white supremacists in Charlottesville to mocking a sexual assault victim, there have been many low points of this presidency, but turning a blind eye to the butchering of a U.S.-based journalist may just be one of the lowest. And that`s from Khashoggi`s editor tonight at "The Washington Post."
It remains an open question as to whether or not Congress might try to do something about this murder, even now that -- even though the president now says he will not because of the pressure on Congress that they should step up and respond to this murder, even though the president won`t. Because of that pressure, I think we expect this story to continue to develop, even through tonight and into the holiday weekend.
I mean, this statement today from the White House literally with all of its exclamation points and everything, this is just too absurd to be the last word from our country on this issue. So we will continue to watch that.
One of the things we knew we would be watching in tonight`s news is the debate tonight in the U.S. Senate race that is taking place next week in Mississippi. The runoff is on Tuesday. The one and only debate in this race is tonight. The only one debate in this race between U.S. Senate -- this U.S. Senate race between Republican Cindy Hyde-Smith and Democrat Mike Espy.
Now, the debate is happening tonight. We learned tonight heading into the debate that Republican Cindy Hyde-Smith had made a request for how tonight`s debate would be carried out. She requested specifically that the debate should be carried out with no audience present and with no press present.
Hmm. Which means basically that they have decided to hold this Senate debate tonight with just Cindy Hyde-Smith and Mike Espy together in a silent secret chamber, where no one else is allowed. It`s absolutely ridiculous.
We will have more on that later on. That debate is under way.
We also learned late this afternoon in a statement from the president`s lawyers on the Russia investigation that the president has now submitted his written answers to the special counsel`s office. We honestly don`t really know how him submitting these written answers fits into the overall progress of this legal case or the investigation more broadly, but apparently, the president`s written answers have now been turned in. One unusual aspect of this part of the Mueller investigation is that the president has publicly bragged that he came up with all these written answers himself.
He has gone out of his way to volunteer to reporters that he wrote these questions -- the answers to these questions all on his own. He definitely had no help from any of his lawyers, didn`t need any help, it was all him.
That`s a weird thing for the president to be publicly bragging about, particularly if there is any chance he might get in trouble for any of these written answers, right? I mean, the president has now volunteered that he won`t be able to defend himself if he gets in trouble from any of these answers.
He won`t be able to say, hey, that wasn`t me. I didn`t mean that that was just something my lawyer said. He`s volunteered, no, this is all me. If there is anything wrong here, it`s me. No way out.
Why did he do that? We will have a little more on that coming up later this hour in the show too.
You should also know that there is some sort of -- some sort of legal activity, some sort of litigation activity that is going on with Robert Mueller`s office right now that we can`t report on directly tonight. Somewhat unexpectedly today there was another sealed filing which was submitted to a federal court in D.C. by prosecutors who are working for Robert Mueller. Now, the reason I say we can`t report on what this is about directly is that this is a sealed case with sealed filings. This case has been subject only thus far -- has been the subject only thus far of sealed hearings. We really don`t know what this is about.
We do know it involves Robert Mueller and the special counsel`s office, and we know that in the court that is hearing this case, there is only one judge on that court who was appointed by President Trump and that is the one judge who has recused himself from hearing this case. So there is lots of intrigue what this case might be about, but we don`t have any direct window into it because it is a sealed matter. Tonight, we have learned there was some sort of 3,000-word filing submitted to the court by the special counsel`s office. We learned that at about the same time that we learned that the president had submitted his written answers to Mueller`s questions.
We don`t know if those two things are connected. It seems pretty clear that some day we will know. Somewhere down the road all this stuff will get unsealed, but at this point, not yet. This is a sealed matter.
It is absolutely secret from the public. It is intriguing, but we cannot tell what it is. "The New York Times" also made news tonight with a sort of odd story about President Trump attempting to order the Justice Department to prosecute former FBI Director James Comey and President Trump`s 2016 presidential opponent Hillary Clinton.
The headline and the whole lead section of this article tonight in "The Times" details an episode that reportedly happened this spring in which President Trump is said to have told his White House counsel Don McGahn that he wanted to order the Justice Department to prosecute both James Comey and Hillary Clinton. According to this new reporting in "The New York Times," the White House counsel Don McGahn responded to that by creating a memo for the president that spelled out for him all the reasons why such an order would be a bad idea.
And so once again, this is another one of these story, and there have been dozens of them where Trump White House counsel Don McGahn has saved the day. Trump wanted to do a terrible thing. Don McGahn made sure terrible thing did not happen.
Sources close to Don McGahn say he doesn`t want your accolades. He doesn`t want your thanks. It`s enough for him. It`s reward in itself to be a loyal American who`s always trying to do what`s right. I mean -- this is a whole genre of weird Trump White House reporting. Sources close to Don McGahn say Don McGahn did heroic thing.
What is amazing about this "New York Times" piece that is published tonight, though, is the whole first part of the story is about Trump saying he wants to order these prosecutions, right? He wants to order the prosecution of Comey and Clinton, and McGahn heroically explains to the president and puts in writing that that would be a terrible idea. But then, eight paragraphs into this story, there is this sort of parenthetical reference, oh, by the way, also some time last year, quote, Mr. Trump`s lawyers did privately ask the Justice Department to investigate Mr. Comey. Law enforcement officials declined their requests.
OK. So here we have, you know, a Superman story short of a cape in which White House counsel Don McGahn is stopping Trump from doing this terrible thing, stopping Trump from injecting himself into law enforcement matters to try to start an investigation into Clinton and Comey, but also we should also mention eight paragraphs in that Don McGahn did go to the Justice Department and tell them to start investigating Comey. So, huh?
I mean, what this is, bottom line, regardless of the strange way this story is coming to light, bottom line, what this is really is a spotlight. It`s an unequivocal clear piece of documented evidence that the president does want to mess with law enforcement any way he can. He wants political prosecutions of his political enemies. He believes it`s his right to get that if he demands it, and he thinks he ought to be a I believe to demand that and get it from an attorney general and a Justice Department that is loyal to him.
"Mother Jones" points out tonight that the new acting attorney general who Trump just installed at the Justice Department, he has frequently publicly opined about how important it is that a Trump attorney general should bring criminal charges against Hillary Clinton. So regardless of the, you know, ersatz heroism of Don McGahn and the sources near him, if Trump is inclined in that direction and if he has been trying to order a politically motivated prosecution of people who he opposes, if he has dispatched White House lawyers to go to the Justice Department to ask them to please start investigations that would please the president, presumably now that Matt Whitaker is running the Justice Department, the president will be expecting a little follow-through on the hopes and wishes that he hasn`t been able to get so far.
And that brings us to a little bit of history tonight. I mentioned that Jim Baker until earlier this year was general counsel at the FBI. He left the bureau in May of this year. He said at the time that in his post- bureau life, he would be working at the Brookings Institution, where he expected to be writing on national security legal issues of their very high profile legal blog, which is called "Lawfare".
Well, now, as I mentioned, Jim Baker is here tonight. He`ll be on the show in just a moment. And that`s because has just done something for "Lawfare" that I think we should pay attention to. Mr. Baker is essentially resurfacing and sort of pointing a big red arrow at a very specific thing in American legal history, and it involves this man. His name is Henry Peterson.
Henry Peterson was head of the criminal division at the Justice Department in the Watergate era. Henry Peterson has been on my mind recently because Peterson played a key role in supervising the fairly gonzo criminal case against Nixon`s Vice President Spiro Agnew. We just roll out the first five episodes of this podcast I`ve been doing about the criminal case against Spiro Agnew and how he ultimately got removed from the White House and how the Justice Department handled that.
It turns out Henry Peterson is the head of the criminal division at the Justice Department at the time. He had a very important role in Agnew`s prosecution, and he has a sort of poignant and important part to play in the Agnew story, because part of the way Agnew defended himself as the Justice Department built this bulletproof criminal case against him is that Agnew publicly attacked the individual prosecutors and the individual Justice Department officials who were involved in bringing this case against him.
And that included Agnew at one point giving a public speech, an angry ranting public speech in which he called out Henry Peterson by name as the head of the criminal division at the Justice Department, called him out as basically a bad guy, some sort of partisan villain who was part of this witch-hunt that was out trying to take Agnew down. So I`ve been paying allot of attention to Henry Peterson in terms of his role with the Agnew thing, but, of course, the Agnew prosecution, that was all unfolding at the same time as Watergate, and as the head of the criminal division at the Justice Department, Henry Peterson was also intimately involved, directly involved in supervising the whole Watergate case against Nixon, from very beginning, from the first break-in, from the discovery of the break-in at DNC headquarters, right?
Well, what Jim Baker, the former general counsel of the FBI has put together at "Lawfare" is a sort of long, granular history of how Nixon used that particular Justice Department official, how Nixon used Henry Peterson, the head of the criminal division at the Justice Department to obstruct justice. How Nixon saw Henry Peterson essentially as his man inside the Justice Department and his guy who had access to everything going on in the Watergate investigation, and Nixon used Peterson to get inside information about what was going on in that investigation in a way that benefitted Nixon`s defense.
Jim Baker goes through the contemporaneous evidence produced by the Watergate investigation at the time, and in this new article for "Lawfare", he highlights all the communications between the president, Nixon, and the senior Justice Department official, where Nixon was pumping this Justice Department official for information. Baker says, quote, these documents detail the direct contacts between the president and the top Justice Department officials responsible for an investigation of his White House and why such contacts were so pernicious and dangerous for all involved.
And what Jim Baker is pointing to here is in fact all available in the historical record. We have the logs of all of the different telephone calls and the individual meetings that the president took personally with Henry Peterson from the Justice Department when they were discussing Watergate.
We`ve got the summary of a conversation that Nixon had with Henry Peterson in April 1973 in which Nixon asked Henry Petersen if he had any information implicating the president himself. That`s Nixon going to the head of the criminal division and asking if he personally is the target of this investigation.
We`ve got Nixon and his White House counsel musing about how these contacts they`ve got with Henry Petersen are helpful. It`s how they stay up on what`s going on inside the Watergate investigation. Quote: Dean said he kept abreast of what the FBI and grand jury were doing, primarily through Petersen. And this, of course, isn`t OK, right? It shouldn`t work that way.
If a president is under investigation, his White House is under investigation, he is talking to the Justice Department and a supervising official there about what`s happening inside that investigation? That`s not supposed to be the way it goes.
As Jim Baker puts it in this new piece, he says, quote, the president, in short, was using a senior Justice Department official to gather intelligence about an ongoing criminal investigation in which he was personally implicated. Quote, when the president sought information from Petersen, provided his views to Petersen on the various matters that they discussed and discussed Petersen`s future, he was not merely exercising his powers under Article II of the Constitution to supervise the executive branch and trying to get the facts necessary to do so. No. The president of the United States was also acting in this instance as a criminal co- conspirator, trying to obstruct lawful investigative activity of the Justice Department.
And that ultimately is the big hairy point here, right? I mean, Jim Baker, former general counsel of the FBI, after he lays out all of this history from the Watergate era, all of this information about contacts during the Watergate investigation between the president and a senior official at the Justice Department who was involved in supervising the investigation, who Nixon`s pumping for information about the investigation, who he`s trying to influence in terms of how the investigation is going, where does that all end up ultimately? What`s the bottom line here? What`s the end of this story?
Well, for Henry Petersen, that Justice Department official, it ends with unsettling questions about why he was so willing to provide all of that information about an ongoing open investigation to the White House that was being investigated. Those were hard questions for Henry Petersen at the time when some of this stuff was first exposed. Those are hard questions for Henry Petersen now. We can talk about that in more detail later on.
But the real bottom line here is whether or not Petersen was acting as a good guy or a bad guy at the Justice Department when he was having these contacts at the White House, whether or not the senior Justice Department official should have been having all of these conversations with the president about an ongoing investigation that implicated the president`s senior staff and would soon implicate the president himself, whether or not that Justice Department official should have been feeding information about the investigation to the president. When the president had those conversations, when he engaged that senior Justice Department official to find out what was going on and to try to alter the course of what was happening with that investigation, when that happened, regardless of what you think about the Justice Department official involved in those discussions, when the president engaged in those discussions, the president broke the law.
Jim Baker ends his analysis of this moment in history by noting that Article II of the impeachment proceedings against Richard Nixon stated that Nixon, quote, knowingly misused the executive power by interfering with agencies of the executive branch, including the criminal division of the Department of Justice in disregard of the rule of law and in violation of his duty to take care that the laws be faithfully executed. In other words, hey, presidents get impeached for reaching into the Justice Department to talk to officials there about what`s going on in an investigation of a president and his White House. That`s the history. That`s the precedent.
As of today, Senator Chuck Schumer, the top Democrat in the Senate, has written to the inspector general at the Justice Department asking if there might be something analogous going on right now with the Mueller investigation. Senator Schumer asking the inspector general to investigate whether the man who Trump has installed as the acting attorney general, Matthew Whitaker, has compromised the Mueller investigation by, quote, sharing with the White House confidential grand jury or investigative information from the special counsel investigation.
Now, will the inspector general actually investigate that? We called the Justice Department inspector general`s office today, and they would not tell us beep. They would not give us any sort of comment. They wouldn`t tell us one way or the other what they`re planning to do in response to that request from Senator Schumer.
In the absence of even knowing whether that kind of investigation might happen, in real-time, as it`s happening right now, we don`t have much visibility into the inside of the Justice Department, or certainly inside the Mueller investigation. We don`t know if when the president started tweeting several days ago about what he knows about the inner workings of Mueller investigation, we don`t know if he was tweeting about that all of the sudden, because all of the sudden his guy at the Justice Department Matthew Whitaker is giving him access to the inner workings of the Mueller investigation.
We don`t know if this White House has been able to spy on or attempt to improperly influence the ongoing investigation into this president and his White House and his campaign. But we do know our history and we do know that history in this case is clear. History tells us that when presidents do that, they get found out. And we have some very strong parallel history to go on here, and we have someone in a very interesting position to be pointing us to this particular part of the historical record tonight, and that is former FBI General Counsel Jim Baker, and he joins us next.
MADDOW: When the Senate asked former FBI Director James Comey for the names of people he confided in about the president asking him as head of the FBI to lift the cloud of the Russia investigation, the list that James Comey gave the Senate was not a long one.
(BEGIN VIDEO CLIP)
SEN. MARCO RUBIO (R), FLORIDA: Who are those senior leaders at the FBI that you shared these conversations with?
JAMES COMEY, FORMER FBI DIRECTOR: As I said, in response to Senator Feinstein`s question, deputy director, my chief of staff, general counsel, the deputy director`s chief counsel, and then more often than not, the number three person at the FBI, who is the associate deputy director, and quite often the head of the national security branch.
(END VIDEO CLIP)
MADDOW: Six people in James Comey`s inner circle. All but one of them are now gone from the FBI. The person he listed third, FBI general counsel -- FBI General Counsel Jim Baker, he left the FBI in May of this year. Mr. Baker said at the time he was going to join the Brookings Institution, and he planned to write for their high profile legal website on national security issues. Their website is called "Lawfare".
This week, in what I think is Jim Baker article number six for "Lawfare", he has more or less blown up the Internet, at least my personal social media feed is now useless for anything other than this story. This is the piece he has just written.
What the Watergate road map reveals about improper contact between the White House and the Justice Department. This is an in-depth historical piece about President Richard Nixon and the trouble he made for himself when he leaned on officials in his own Justice Department both to try to influence the course of the Watergate investigation, but also specifically to get them to feed him information on the ongoing case.
James Baker, ex-FBI general counsel now providing an impressive history lesson on how one of the articles of impeachment against Nixon was in part about him opening up a back channel of communication with a senior Justice Department official that was designed to inform him about the inner working of the Watergate case.
Joining us now for the interview is James Baker, former general counsel of the FBI and co-author with Sarah Grant of this fascinating spotlight on this part of history. Mr. Baker, it`s really nice to have you here. I know you don`t do things like this often if at all. So, it`s a real honor to have you on the program.
JAMES BAKER, FORMER FBI GENERAL COUNSEL: Thanks, Rachel. First time ever.
MADDOW: Well, thank you. I promise it will not be too painful.
BAKER: OK. We`ll see, we`ll see.
MADDOW: I want to talk about why you did this. You have written this piece. It has received a lot of attention, not only for the historical analogy that people are drawing to our current situation, but also because you wrote it. Can you just tell me what it is about this part of history that interests you so much?
BAKER: Sure. Well, a couple of things. When I first -- I didn`t really know about the road map very much before. And when it was recently released by the district court in Washington, D.C., I`d looked at it. I heard about it. I took a look at it and started reading it.
And I saw these references to Henry Petersen. I had worked in the criminal division of the Department of Justice for many years and knew who Henry Petersen was, and he is a revered figure there. And so, that sort of leapt off the page at me. I was like, what is -- what`s all this about?
So, the road map itself is very sparse in terms of the information it provides, and so it -- but it cites two additional underlying documents that I started digging into, like grand jury transcripts and some other documents and things like that. And so, as I started to read those, I really just was what in the world is this all about?
The number of interactions that the president of the United States had directly with Mr. Petersen, who at the time as you said earlier was running -- this is before the special prosecutor was appointed, Henry Petersen was in charge of effectively running the Watergate investigation, supervising it.
And so, there is all these contacts. There`s all these interactions. There is all these discussions with the president. As you outlined, the president makes these comments about John Dean and -- I mean, about Ehrlichman and Haldeman, I`m sorry, about how these are fine upstanding guys when Petersen and then attorney general go in to see him and say look, we`ve got a problem. We`re really concerned about these guys and we think you should fire them.
And the president had a reaction that was kind of surprising to me. But as I dug into it more, it was the volume of the -- it was the number of interactions, the nature of the scope that really surprised me. So, I was just surprised by it and intrigued.
And then I guess the other thing, as you said earlier, this was something that I was unaware of before myself, and having worked in the Justice Department for many years. I thought it was something that might be useful to folks still in the Justice Department to be aware of, to have some knowledge about. One of the things that I struggled with all the time -- not all the time, but frequently was having to confront novel, complicated, challenging problems that there was no book to go to look up an answer. Like how did people deal with this before? What are the guidelines? What are the cases?
Oftentimes there were no guidelines or cases or other things that you could go to. And so, whenever there is something that you can look at, something to inform decision-makers about what the best way to go is, it seems like should it be useful and might be useful. And so I thought it would be helpful to have both folks in the government have access to this information, and then obviously more broadly the American people.
I think it`s -- we, as many people have said, if we don`t learn from history, we`re condemned to repeat it. And so, this was piece of history that I personally didn`t know about. I thought it was intriguing and interesting. And as you mentioned, Sarah Grant and I wrote this up and put it out there.
MADDOW: On -- in terms of looking back at this and sort of seeing how people have dealt with this before, what might be the relevant precedent or the lessons of history here, obviously, there is a lesson of history here in terms of Nixon. Nixon gets caught for doing this. As you spell out in your piece, one of the articles of impeachment is based in part on him having improper contact with the Justice Department about this ongoing investigation.
MADDOW: I wonder, though, if it was also improper from the perspective of the Justice Department for Henry Petersen, for this senior Justice Department official to be talking to the president. Certainly, Petersen at the time was pilloried for having done that. It didn`t necessarily look good that he had been having all these conversations with the president about that investigation.
How do you view that, looking back on it?
BAKER: I guess a couple of things. One is I`m not a Watergate historian. Sarah`s not a Watergate historian. So, we didn`t -- we`re not capable of really making a full accounting of everything that happened here. So, that`s number one.
I mean, look, it does look alarming when you look at this, of the interactions, but Mr. Petersen did not know all the facts that we know now, right, in terms of what the president knew and what the president was aware of and what the president was trying to achieve through his interactions with him. If you take Mr. Petersen`s statements at face value, and he was a man of integrity from everything that I understand, so I take those at face value, he said, look, I`m -- I was the assistant attorney in the criminal division. I felt I had an obligation to inform the president what was going on.
I think implicit in that is that he didn`t know the level of the president`s involvement in these types of activities. He didn`t know what was in the president`s mind at the time. He didn`t know how the president was trying to misuse his interactions with Henry Petersen. So I think you to sort of give him the benefit of the doubt.
At the same time, though, as you highlighted from the piece, these types of interactions are dangerous for everybody. They`re dangerous for the president because they can lead down this road that we saw happened with President Nixon, and they`re also potentially dangerous for the Department of Justice, for the integrity of the investigation. At least one time significantly, President Nixon specifically told Henry Petersen do not investigate anything having to do with the Daniel Ellsberg -- with the break-in at Daniel Ellsberg`s psychiatrist office when Petersen told Nixon that Dean had told the prosecutors about that. President Nixon said, no, stay away I from that. Do not investigate that that`s outside your mandate. So, he was actually able to constrict significantly a part of the investigation.
So, it`s dangerous for all sides involved, which is why over the years there has been a history of -- since Watergate, since these things came to light of the department and the White House being very cautious about what the nature and scope of the interactions between the two organizations is and how that`s regulated. Especially when you`ve got an investigation going on that touches the White House.
MADDOW: As a regulated matter, and I`m not asking you to comment on the Trump administration specifically, I know you`re constrained from being able to do that here. But as a matter, that you say is regulated now in terms of contacts between the White House and the Justice Department, if there were violations on that, if there were somebody at a high level in the Justice Department who was having secret communications with the White House about an investigation that involved the White House, that would be against Justice Department rules.
That`s the sort of thing that you would expect the inspector general to look into if there were credible allegations of that.
BAKER: Just speaking hypothetically and generically?
BAKER: Potentially, yes. The I.G. could look at that. The I.G. has a broad scope of authority and could look at that.
MADDOW: James Baker, former general counsel of the FBI -- again, a man who does not do introduce like this. I really appreciate you making time to be here and talking to us about this piece. Thank you very much.
BAKER: Thank you, Rachel.
MADDOW: All right. I have some more questions. Stay with us. We`ll be right back.
MADDOW: I have a whole bunch of question, almost all of which are legal questions about a whole bunch of these stories have broken in today`s news. We thought a bunch of stuff might break before Thanksgiving. It turns out today was the day.
First of all, the president we`re told has submitted written answers to Robert Mueller`s special counsel`s office. What does that tell us about where the investigation is, what else might be required of the president and whether the president might be looking at personal jeopardy, personal liability in this investigation?
We had previously heard through open source reporting that Mueller had asked the president for an in-person interview. What does it tell us about the investigation that they appeared to have not gotten that but they did get these written questions?
Also, I have questions about this sealed case that appears to be proceeding with speed through the district court and the federal appeals court in D.C. We saw the special counsel`s office today file a 3000-plus -- 3,000 word plus motion. It was slightly more than 3,000 words, this motion.
In this case, I have no idea what that case is about, but I`m pretty sure it`s about Russia and the Trump administration. And what I want to know about that sealed case is that always going to be sealed? Are we ever going to find out what that case is? It has been driving me nuts.
Speaking of driving me nuts, I also have questions about Trump national security adviser Mike Flynn. Last night, we reported that we expected a presentencing report about Flynn to be filed in court in Washington today. Flynn, of course, pled guilty to a felony.
He has supposedly been cooperating with Mueller`s office. He is awaiting sentencing. The judge who will sentence him will factor into Flynn`s sentence just exactly how helpful he has been in his cooperation.
We thought as of last night that the report that was going to be filed with the court today would be from Mueller`s office, would be from prosecutors. It would be them spelling out how helpful Flynn has been and how much time they think he should get in prison. We got the filing today, or at least we got notice of the filing today, and it turns out that wasn`t it. It wasn`t a filing from prosecutors. It was a filing from the probation office instead about Flynn`s eligibility for sentencing and the probation office filing is something that we`ll never get to see at all.
The juicy stuff we`re expecting about how much Flynn has been cooperating and how much time he should get in prison, that is all still to come. That will come out in the next few weeks.
But here is my question about that. And about all the other Trump-related figures who are now awaiting sentencing like Rick Gates and Paul Manafort and these guys. My question is, are their gooses cooked?
If hypothetically, the new acting attorney general has been installed at the Justice Department to screw up the Mueller investigation and to block Mueller from advancing in any way, that`s going to potentially threaten the president or people the president cares about, would we see evidence of that in these end stage sentencing proceedings that we`re now expecting? Or are those cases all basically done and it`s just a matter of that information being made public?
And also, if I`m stack up questions, what do we make about Jim Baker, former general counsel for the FBI writing a history report on ways presidents get impeached for messing with ongoing investigations of their own White Houses, including getting back channel information about that investigation from senior people at the Justice Department? I will get answers to these questions from the perfect person to answer them, next.
MADDOW: Joining us now, I`m very happy to say is Chuck Rosenberg. He is a former U.S. attorney and former senior official at the FBI and the Justice Department.
Chuck, thank you for being here.
CHUCK ROSENBERG, FORMER U.S. ATTORNEY: My pleasure.
MADDOW: I have a whole bunch of questions.
ROSENBERG: Go ahead.
MADDOW: Mr. Trump`s lawyers said today they have submitted the president`s written answers to the special counsel`s questions. We know not from the special counsel but from open source reporting that Mueller`s special counsel`s office had apparently asked the president for an in-person interview. We do not think that has happened. Instead, these written answers have been submitted.
Does that tell us anything about the investigation or the president`s standing?
ROSENBERG: I think so. So we`ve talked previously about how you save the most important witnesses for the end of your investigation. And by any account, Mr. Trump has to be one of most important witnesses. So, we`re closer to the end.
I`m not sure we`re at the end, and here`s why, because we still don`t have a part of the story. The written answers have nothing to do with obstruction, we`re told. He won`t volunteer for an interview. So, there is this thing out there that Mueller wants and hasn`t gotten.
It could be that he is going to pursue it. It could be he has decided he can`t get it, but it shouldn`t be the end of the story just yet.
MADDOW: Why would Mueller want an interview and not just be satisfied with written answers to questions?
ROSENBERG: For the same reason you want guests to come on your show. You want to be able to follow-up questions like you just did. You want to be able to look them in the eye and see if they`re lying to you.
You want to look at a witness and gauge his or her responses, their inflection, their body language, their tone. And written answers don`t permit any of that. So, you have to look at somebody face-to-face, and you have to do it, by the way, not with lawyers helping them craft answers, but with the witness himself or herself talking to you across the table, like we`re doing now.
MADDOW: To that point, the president went out of his way to brag to reporters, to volunteer to reporters that when he was confronted with these written questions and he had to provide written answers, he said I did them myself. I didn`t need any help. My lawyers had nothing to do with it.
And my psychological reading of the president, which is always a danger to even try to do that was that the president was sort of bragging that he had found these questions to be easy and he had passed this test. From a legally strategic perspective, though, it seemed to me like maybe a counterproductive thing for the president to have bragged about.
Isn`t it possible if there is anything incriminating any of these answers that the president would -- it would behoove him to blame it on one of his lawyers saying, I didn`t answers that, that was some other guy, go after Jay Sekulow for that?
ROSENBERG: You break it, you bought it.
ROSENBERG: In other words, it`s his now. Well, in any event, he is going to sign his name to it. So, whether or not he wrote it, which I find very hard to believe or his lawyers wrote it, which is much more plausible, he is still going to sign his name to it. It`s his statement.
But that`s why I believe his lawyers played a very big role in this. And what Mueller probably got was not particularly useful.
MADDOW: In terms of how Mueller might still be angling to get an interview, an in-person interview with the president, I have a question about that for you right after this commercial break. We`ll be right back with Chuck Rosenberg right after this.
MADDOW: We`re back with Chuck Rosenberg. He`s a former U.S. attorney, former senior official at the FBI and Justice Department.
Chuck, thank you. I want to keep grilling you.
MADDOW: We got a new -- we got a new indication today that there was a long 3,000-word sealed filing in this case that we have no window into. Sealed filings, sealed motions, sealed hearings, we have seen -- you can see on the docket that there has been movement here. We can see that it involves the special counsel`s office. We can see that it involves the D.C. federal court and the D.C. federal appeals court, and that they have been handling this matter with alacrity.
We can see that the one judge on that court, on that appeals court who was appointed by President Trump is the only judge who is recused from this case. I`m fascinated by this sealed case. We have no idea what it`s about. A, is there any way watching that you can discern what it might be about? And B, will it definitely be unsealed someday, will we ever know?
ROSENBERG: A partly and B probably, I`ll explain.
ROSENBERG: Very likely it is a grand jury matter. By rule and law, grand jury matters have to be under seal. Government must keep it secret, so if they served a subpoena on someone -- let`s say even on the president for testimony and the president`s team moved to quash that subpoena, all that litigation would be under seal. So, that`s probably what it is.
MADDOW: That is what I -- honestly, what I assume it is. I assume this is Mueller and his team subpoenaing the president to appear before the grand jury and the president`s lawyers fighting it.
ROSENBERG: Or somebody else, but it could well be the president. That`s the part we don`t know. So, that`s the part answer, part A. The probably answer, part B, is that almost everything that`s sealed one day gets unsealed.
Now, once, for instance, someone is charged or the matter becomes moot, the courts can move to unseal it. Often, you`ll see journalists move to unseal documents. That`s how we got the road map from Jaworski in Watergate, was journalists asking the court to unseal it.
So, I hope we don`t have to wait 40 years for it, but the answer is you will probably see that one day. If it`s part of this case and it`s litigated and resolved, probably sooner than later.
MADDOW: We had former general -- former FBI general counsel Jim Baker here who I know is someone you know.
ROSENBERG: Very fond of him.
MADDOW: This is the first interview he`s done on television since leaving the FBI in May. It was an honor to have him here. The reason we had him here and what we talked to him about is the piece he`s written that is on part of the history of Watergate. Essentially highlighting the fact that one of the things the president got in trouble for during Watergate was opening up a back channel of communication with the Justice Department official who had a role in, who had information about the Watergate investigation and it was improper for the president to do that.
Jim Baker wasn`t here to talk about analogies to the president, but people are making -- seeing an analogy there with Matthew Whitaker at the Justice Department or anybody else at the Justice Department who might be feeding President Trump information about the Mueller investigation. Is it clear under current Justice Department rules that somebody at the Justice Department would be in trouble if they were doing that?
ROSENBERG: Yes, and particularly so if it was done to help the president undermine the investigation, the integrity of the work of the men and women of the Department of Justice. Right? So, the president is the head of the executive branch and the Justice Department is a part of the executive branch.
And so in theory, the president is entitled to know what his branches -- I`m sorry, what his agencies are doing. That part is OK. But if it`s to undermine the investigation -- which, by the way, Rachel, is about him.
ROSENBERG: That`s a problem. And so, I think the analogy that Jim Baker draws explicitly in his article, implicitly on your show, is very important.
MADDOW: The truth will out is the way that one ends basically.
ROSENBERG: The truth will out. The rule of law will prevail.
MADDOW: Chuck Rosenberg, always a pleasure to have you here, sir. Thank you very much.
ROSENBERG: Great pleasure for me. Thank you.
MADDOW: We`ll be right back. Stay with us.
MADDOW: This just happened at the U.S. Senate debate in Mississippi tonight. See if you can tell what`s wrong with this statement.
(BEGIN VIDEO CLIP)
SEN. CINDY HYDE-SMITH (R), MISSISSIPPI: I am so glad that I had the endorsement of President Donald J. Trump and the endorsement of Governor Phil Bryant. But the endorsement that`s most important to me, that`s most valued would be your vote next Tuesday, November the 22nd.
(END VIDEO CLIP)
MADDOW: Next Tuesday -- November 22nd -- that does it for us tonight. We`ll see you again tomorrow.
Now, it`s time for "THE LAST WORD" with Ali Velshi, who`s filling in for Lawrence tonight.
Good evening, Ali.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END