RACHEL MADDOW, MSNBC HOST: I thought your stuff on the Barr report was freaking spot on tonight.
CHRIS HAYES, MSNBC HOST: Thank you. Appreciate that. Thanks a lot.
MADDOW: All right. And thanks to you at home for joining us this hour.
In 1974, Leon Jaworski was the special prosecutor who was investigating Watergate and related issues with the Nixon administration. The first special prosecutor, of course, had been Archibald Cox. President Nixon had to fire his way through the upper echelons of the Justice Department in order to fire Archibald Cox, the first special prosecutor for him having the temerity to demand that the next Nixon White House follow the law and obey court orders and hand over material relevant to that investigation.
So, Cox got fired. Leon Jaworski was Archibald Cox`s successor and if the Nixon White House was hoping for somebody to be intimidated by how they got, if they were hoping for somebody more cowed, somebody who would be less aggressive, somebody who might have felt at least implicitly threatened by the way Archibald Cox had been ousted on direct orders from the president, that was not what they got with Leon Jaworski. Leon Jaworski was just as rock ribbed, just as straightforward, just as un- intimidated.
And 45 years ago this month, Leon Jaworski assembled this 62-page document, summarizing material that the Watergate grand jury had obtained that was relevant to understanding the president`s own conduct within the Watergate scandal.
Now, grand juries conduct their work in secret. It is absolutely integral and sacred to the grand jury process that the evidence they obtained in the course of an investigation be used for one purpose and one purpose only, which is drawing up indictments. That`s all grand juries do. The information that goes to them can`t be used for any other purpose.
However, when a grand jury collects information that is relevant to the potential criminal misconduct of a sitting president of the United States, it has long been Justice Department policy even in the Watergate era that in that instance, the end product of the grand jury`s work can`t be an indictment. A sitting president can`t be indicted and so what is grand jury supposed to do with the evidence it collects about criminal activity by a sitting president? Where does that information go?
When a prosecutor conducts grand jury proceedings that turn up evidence that indicates potential criminal activity by a sitting president, that prosecutor has to figure out, right, what to do with what this grand jury has just learned about the president`s behavior. In Leon Jaworski`s case in 1974, with the Watergate grand jury he had convened in 1974, what he decided was that it just would not do for that information about the president to drop into some black hole of presidential immunity from prosecution. And so, Leon Jaworski`s grand jury in March of 1974, they obtained permission from the federal court in Washington D.C. to transmit the evidence they had obtained to Congress. The evidence they obtained that was relevant to Richard Nixon`s criminal behavior as president.
That 62-page document was not an indictment. They did not try to bring an indictment against President Nixon. What they did is present the factual record that they had amassed, which was a 62-page document. It was essentially a guide, a lot of people called it a road map to the hundreds of documents and multiple tape recordings that grand jury obtained and reviewed and come to see as relevant to the president`s potential criminal actions.
They packed up all that evidence. They wrote up this terse document summarizing that evidence, giving Congress the information they thought Congress would need to be able to make a decision about what to do next. There were no recommendations as to what Congress should do. There were no conclusions drawn as to whether or not the president had committed crimes. It was just the facts, just the factual record. And in the end, Congress did decide to use that road map of evidence collected by the grand jury as the basis for their impeachment articles against Richard Nixon first and foremost on the basis of his alleged obstruction of justice.
And while grand jury information really is supposed to be secret and it is therefore a big deal that that court cleared it for that grand jury information to be conveyed to Congress in 1964, it`s interesting. That 62- page document containing the grand jury information about the president, it never leaked. It was conveyed by the grand jury, by Jaworski`s grand jury to Congress, to the House Judiciary Committee. It was kept confidential by the House Judiciary Committee as they used it to draw up the impeachment articles against Nixon.
It was never leaked to reporters. It was never leaked to the public. The only reason we can look at it now 45 years later is because just within the past year, the court decided it was finally OK to let it be seen as an object of historical interest. And so finally now, we can read in that original document all these years and decades later about what evidence there was about President Nixon obstructing justice.
You know, it is remarkable to see it typed up in terse. There he was on February -- item 41. February 28th, 1973, there was Nixon meeting with John Dean talking about offering presidential clemency to the Watergate defendants and we know from the footnote there 41.1 that there was a tape recording of that meeting and that`s how the grand jury knows that conversation happened and what they discussed.
And then a few pages later, we get to item 45, which tells us that three months after that conversation he had with John Dean about offering clemency to the Watergate defendants, Nixon said in a public statement, quote, at no time did I know about an offer of executive clemency for the Watergate defendants. And what is the source of that information? Well, that`s the thing the president did in public. They source the transcript of a Q&A session by President Nixon with "Associated Press" managing editors.
And putting out those two pieces of information in that document, that was not Leon Jaworski or his grand jury saying, hey, hey, hey, the president appears to be obstructing justice here. He knowingly lied about whether or not clemency would be used as a tool to try to cover up the Watergate break-in. They never spell it out like that. They just laid out the facts and how they knew those facts.
That was Jaworski and the grand jury saying this is what we know about the president`s behavior. Here is the documentation that proves it. You make the call what to do about this. And the you making the call in that case was Congress.
Leon Jaworski and that grand jury was not going to indict the president in a court of law, so they got permission from the court. It was Congress` decision what to do with the information that they had amassed. No recommendations from the grand jury and from special prosecutor. No conclusions drawn, just the facts.
That is our historical inheritance as a country, as a people in terms of how we deal with presidential wrongdoing. And now to celebrate the 45th anniversary of that on-the-nose historical president for an investigation into potential obstruction of justice by a sitting president of the United States, now 45 years later to the month, now this time, the Trump administration has decided they would like to handle this a little differently this time.
In a four-page letter to the Judiciary Committees in the House and Senate, newly appointed Attorney General William Barr has written a short narrative description of the content of the final report that has been prepared by special counsel Robert Mueller, a final report which no one outside the upper reaches of the Justice Department and special counsel`s office has apparently seen.
In what Barr describes as an initial review of Mueller`s report, he starts off describing the reach and effort put into Mueller`s investigation. Quote: In completing his investigation, the special counsel employed 19 lawyers who are assisted by a team of approximately 40 FBI agents, intelligence analysts, forensic accountants and other professional staff. The special counsel issued more than 2,800 subpoenas, executed nearly 500 search warrants, obtained more than 230 orders for communication records, issued almost 50 orders authorizing the use of pen registers, made 13 requests to foreign governments for evidence, and interviewed approximately 500 witnesses.
And, boy, that`s a lot of numbers. Certainly seemed like an we`ve list of numbers of things. It would be more substantively illuminating to the American public and to Congress if we knew anything about the products of those 2,800 subpoenas or what those 13 foreign governments turned over when they got requests for information. It would be more substantively helpful to know the information obtained from these 500 witnesses.
But nevertheless, I think those free-floating numbers are up there at the top of the letter in order to make us feel assured that no stone was left unturned. Barr then describes what he says are the two parts of the special counsel`s report. The first is the special counsel`s investigation into Russia`s interference and the 2016 U.S. presidential election from what Barr says in the short letter, it sounds like the actual Mueller report goes into quite a bit of detail about what Russia did to try to mess with our election and try to install their favored candidate in the White House.
Barr then says and he repeats himself for emphasis. He then says that, quote, the special counsel`s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election. So, that`s the first part of the report. He quotes what he says is a sentence from Mueller`s report that there was no finding that campaign or anyone associated with it conspired or coordinated with Russia. That`s the first part of the report.
When it comes to the second part of the report, when it comes to obstruction of justice, one of the things Barr appears to be vaguely hinting at here is that Mueller seems to have made some sort of detailed factual accounting of the president`s actions that could potentially be construed as obstruction of justice. Barr says that Mueller made a quote thorough factual investigation into these matters related to obstruction of justice. He says, quote, for each of the relevant actions, the report sets out evidence on both sides of the question and quote leaves unresolved what the special counsel views as difficult issues of law and fact concerning whether the president`s actions and intent could be viewed as obstruction.
More broadly, William Barr describes the special counsel`s decision to describe the facts of his obstruction investigation without reaching any legal conclusion -- which is something that has some echoes in history. Factual information about the president`s behavior as it relates to obstruction of justice. No conclusions one way or the other as to the criminality of those actions, just that detailed factual information handed over without recommendation, without drawing prosecutorial conclusions.
That is what Leon Jaworski and his grand jury did on March 1st, 1974 in that document that was conveyed to the House Judiciary Committee. And we don`t know exactly what Robert Mueller has done because all we have is William Barr`s short and somewhat opaque description of what he says Mueller has done. But what Barr seems to be indicating here is that he got a detailed just the facts recounting of Trump`s behavior that potentially pertains to criminal obstruction of justice.
Recounting that, quote, does not conclude that the president committed a crime but it also does not exonerate him. And when that exact sort of document was handed over to the Judiciary Committee in the House by Leon Jaworski and the Watergate grand jury in 1974, the Judiciary Committee in 1974 looked at that factual record of information they had obtained from the grand jury and special prosecutor and they decided in fact that based on that information, they would draw up impeachment proceedings against President Nixon primarily for obstruction of justice.
This time, this factual record, this description of the president`s behavior, it didn`t go to the House Judiciary Committee. Instead, they got a letter because the actual information went instead to the president`s newly appointed attorney general who has been on the job for a month. And who got the job after submitting to the White House an unsolicited 19-page memo that which claimed that the president inherently can`t obstruct justice and Mueller can`t even investigate him for that. Whatever information Attorney General William Barr just received from Robert Mueller about the president`s behavior, as it pertains to obstruction of justice, Barr could have passed that information onto the Judiciary Committee for them to decide what to do with the following Jaworski`s handling of the Watergate road map in 1974 .
But instead, somewhat inexplicably he decided to take it upon himself to declare definitively, yeah, you know, I looked at that stuff and I can tell you there is no crime there. It`s fine. At which point, whatever you think about the quoted conclusions about the other half of Robert Mueller`s report, on this obstruction stuff, it`s like, what? Where did this come from?
I mean, on what grounds are you saying that you have concluded there is no crime here? What facts did you consider about the president`s behavior when arriving at that conclusion? Mueller did provide a detailed factual description of the president`s actions as they pertain to obstruction of justice, including some actions that Barr says were not publicly reported.
But we apparently will not be allowed to see that material and the attorney general seems to be indicating that Congress won`t be allowed to see it, either. Only he gets it. I mean, to the extent that Mueller unmasked a factual record, some of them will be stuff the president did in public that we can read about in the paper. But other stuff, especially stuff that wasn`t publicly reported, he presumably would have pursued through the grand jury process, right, those 2,800 subpoenas, in large part, those were likely subpoenas to provide evidence and information to the grand jury.
There were interviews with hundreds of witnesses and some of those witnesses may have been directly interviewed by the special counsel`s office and that`s it but witnesses were also brought a lot before the grand jury. Attorney General William Barr now says that the end of his short letter to the Judiciary Committee, is that while he would love to convey Robert Mueller`s confidential report in its entirety to Congress and he is, quote, mindful of the public interest in the matter, oh, sad trombone, he can`t because he needs to remove all grand jury material from the report before he allows anybody else to see any of it, including the Judiciary Committees in Congress.
And again, grand jury information rightfully is kept secret but it is for a reason, which is that grand juries collect information for the purpose of considering criminal indictments against criminal suspects. When a grand jury collected information against one person in the country who can`t be indicted as a criminal suspect because of his job, because he`s the president -- well, does that grand jury information about the president go into a burn box somewhere? Or does it go in confidence to an entity that can pursue justice and accountability for known criminal acts, even when an indictment can`t be brought?
Jaworski and the grand jury conveyed their information in secret under seal to the Judiciary Committee in 1974. This information obtained by Mueller`s report apparently just goes to President Trump`s appointee and other than that, he`s going to make sure nobody else sees it. The surprise in William Barr`s letter this weekend about Mueller`s findings, the big surprise was this strange assertion, a legitimately unexpected assertion about Robert Mueller, the special counsel, choosing to, quote, not make a traditional prosecutorial judgment whether or not the president committed crimes related to the obstruction of justice, and that looms the largest in the questions raised by William Barr`s report, right?
We do not have the Mueller report. We have less than 50 words that Barr says are quotes from the Mueller report. Other than that, we just got William Barr`s statement and William Barr`s statement, we can call it the Barr report -- it raises all sorts of brand-new questions we didn`t have before about what exactly is going on here with this investigation, and what fruits it will be allowed to bear.
I mean, first and foremost, question one, the special counsel`s office, according to Barr, determined not to make a traditional prosecutorial judgment on obstruction of justice. Well, why did Mueller make that determination and was it a in fact, a choice? Did Mueller believe that he had a choice in that matter or did he believe he was constrained either by his legal remit or by Justice Department policy?
I mean, Barr in his report describes this decision by Mueller almost in wonder like who knows what this Mueller guy was thinking? He decided not to do this part of his job, weird, right? So that has led to whole day plus of speculation and news reporting now as to what this crazy guy Mueller must have been thinking when he did that.
Well, all we have here is Barr`s assessment of what Mueller did. Mueller was reportedly not consulted on the Barr report and how Barr characterized Mueller`s decision here, nor has the special counsel`s office committed one way or the other on Barr`s report, since it was released. So, we don`t know.
But if Robert Mueller believed, like Leon Jaworski, and his grand jury did in 1974, if he believed that his role was to lay out the facts that pertain to the president`s alleged criminal behavior without making recommendations or drawing conclusions one way or the other as to whether or not that behavior constituted a crime -- well, that makes it all the more remarkable that attorney general William Barr jumped in and said I know what the answer is here, I`ll do it. I`ll decide.
So that`s question one. Question two, did Robert Mueller expect the attorney general to jump in and make a no prosecution announcement regarding obstruction of justice? Did he ask him to do that and expect him to do that? Or was that as much as a surprise to Robert Mueller as did the rest of us?
Third question, and it relates. Is it proper that Attorney General William Barr would make this kind of a public call? Especially upon receiving no recommendation from the prosecutor who helmed this grand jury and otherwise conducted this investigation?
Is there anything in the special counsel regulations or in Justice Department regulations more broadly that direct the attorney general to jump into the breach here? And say, hey, I personally have decided after looking at this for a day that there is definitely no crimes, I`ve decided it`s my role to make that public pronouncement. Was that a proper role for the attorney general and on what basis did he make that public pronouncement?
Fourth. One of the reasons it might not be proper for a prosecutor for any prosecutor or for the Department of Justice more broadly to jump in and make a pronouncement that a president appears to have committed crimes is because of the possibility that that president could actually be indicted and prosecuted and put on trial for those crimes after he or she has left office. So, let`s say like just as a lark, that our president directed his long-time personal lawyer to commit campaign finance felonies right before the 2016 election, and prosecutors are sending his longtime personal lawyer to prison for that and they think they`ve got the president dead to rights for the having to direct the commission of that felony.
And prosecutors are willing, let`s say, to bring charges and mount a trial to prove it in a court of law, but they can`t do that while the president is serving as president, so say, they plan to do that. They plan to try to secure that indictment against the president starting the day he leaves office. That kind of scenario might be a conceivably be a reason why a prosecutor and the why the Department of Justice more broadly would not want to go on the record publicly declaring whether or not behavior by the president amounts to a crime because that sort of pronouncement from a Justice Department prosecutor or the Justice Department more broadly would taint the deliberations of any grand jury asked to consider whether an ex president committed a crime and should be indicted as such.
So is that a reason why Robert Mueller might not have said one way or the other whether the president`s actions constitute a criminal obstruction of justice? So, as to avoid essentially precluding any future prosecution of the president for crimes that he may have committed once he leaves office? And if that`s why Mueller believed, if that`s why Mueller believed he was not supposed to say one way or the other whether this was a crime, if that`s why he believes this is just the facts, ma`am, other people should come to their conclusion whether or not this is a crime, if that`s why Mueller was reticent on that point to give any recommendation and pronounce any conclusion and make any prosecutorial announcement, if that`s why Mueller was holding back on that, did William Barr blow that up?
When William Barr decided to land with two feet on one side of the question and say as far as I can tell, there is no crime here. I hereby proclaim no crime. In so doing, did he screw up any future grand jury proceedings that Mueller might have been trying to protect?
We`re only up to question four? Hold on. I`m just getting started.
Stay with us.
MADDOW: You knew it would be this kind of night, didn`t you? You knew -- yes, I tried to go on vacation these last few days. Did not work.
I have questions. I have lots of questions based on the Barr report, some of which I think will be answered if and when we get Robert Mueller`s report. But in the meantime, what Attorney General William Barr has just given to Congress really does raise a lot of questions that we never thought we would be asking, I think, about how this investigation is being resolved.
I just round down my top four questions, all of which have to do with this surprise in Barr`s letter about Robert Mueller reportedly not recommending one way or the other whether Trump should be prosecuted for obstruction of justice crimes. We are about to have here onset a former very senior national security official who was involved in the early stages of this matter within the Justice Department.
He is here tonight because he has some things he has to say. Excuse me, some things he wants to say about this part of what William Barr is doing and how this investigation is resolving. So, I`m eager to talk to him.
Before we bring him on, I want to lay out a few more of these questions from what William Barr has just done, a few more questions that are kind of driving me nuts.
Number five. What does it mean when Barr says he had to consult with the Office of Legal Counsel at the Justice Department before he made this declaration about President Trump not committing any crimes when it came to obstruction of justice? Office of Legal Counsel is like the lawyer`s office for the Justice Department. They deal with big policy issues for the Justice Department and big, difficult, complicated legal issues that might not show themselves clearly and through a difficult maze.
I mean, when Barr says he had to go to the Office of Legal Counsel before deciding about whether or not the president had committed obstruction of justice, why was that? I mean, did he determine the president didn`t commit any crimes when it came to obstruction of justice on the basis of the factual descriptions Mueller gave him of President Trump`s behavior? Or did Barr have to go to the office of legal counsel because instead, he base his determination that the president hadn`t committed any crimes on his own legal theory, which he laid out to the White House months ago in that confidential memo in which he said that a president inherently cannot commit obstruction of justice just because he`s president of the United States.
I mean, Barr has said that he has a legal theory that a president can`t commit obstruction. He also says this president didn`t commit obstruction. Well, did he decide that based on the president`s inherent existence as president or did he decide that based on the facts? Is that why he needed to talk to the OLC about this determination because it`s based on his legal theory an esoteric one at that, or is it based on the facts of the president`s behavior? Question number five.
Question number six, what`s going to be briefed to the intelligence committees and the so-called Gang of Eight in Congress, congressional leadership of houses or intelligence committees when it comes to Mueller`s findings? What will they get? I mean, remember, this was partly a criminal investigation by Robert Mueller, but it was partly a counterintelligence investigation too. Does the counterintelligence investigation, the counterintelligence part of what Mueller looked into, does that deal with the question, does that answer the question of whether anyone in the Trump campaign or the Trump administration was under the influence of a foreign adversary?
I mean, that`s not exactly the same thing as colluding with them to influence the 2016 election. If you`re under the influence of a foreign adversary, that`s not necessarily a crime, and it may not relate at all to Russia`s interference in the 2016 election. But if there are people in administration or campaign who were operating under the influence of a foreign adversary, that could be important for us to know as a people, especially if those people operating under the influence of a foreign adversary have got, like, really, really big jobs in the government. It would be good to know that.
We learned not long ago that one of the open investigations Robert Mueller inherited as part of his special counsel was an FBI counterintelligence investigation into President Trump himself, a counterintelligence investigation into whether or not President Trump himself was under the influence of a foreign adversary. Did Mueller close out that part of his investigation, as well?
Will that be briefed to congressional leadership? Will that be briefed to the intelligence committees? Will that be briefed to Congress more broadly or to us?
Question number seven. Was there a full determination? Was there a full investigation of Trump`s intent regarding obstruction?
William Barr says the determination he came to that Trump couldn`t be charged with obstruction of justice was based in part on the special counsel`s conclusion that quote, the evidence does not establish that the president was involved in an underlying crime related to Russian election interference. Barr says quote while not determinative, the absence of such evidence bears upon the president`s intent with respect to obstruction. Well, was there a full investigation of the president`s intent when it came to obstruction of justice?
One of the ways you try to get an intent is by asking people questions, you know, president never came in for an interview. Does it make sense as legal reasoning for William Barr to have cleared the president of obstruction of justice in part on the basis of the fact that the president wasn`t involved in an underlying crime with Russian election interference? Does that make since if the president hypothetically was trying to obstruct the investigation, not because he was part of Russia`s social media efforts or hacking efforts targeting the DNC, but instead, because of some other thing, because he thought a full investigation of those matters might turn up evidence of him being compromised by a foreign power or him having lied about business dealings with a foreign power or discussed some sort of quid pro quo with a foreign power. Does it matter if the president had an impetus, had a motive to obstruct justice that wasn`t specifically related to the crime committed by the Russians?
Question eight. Were the president`s business activities and his financial history part of this investigation as to his potential compromise by a foreign power or some foreign entity having leverage over him? The chairman of the Intelligence Committee in the House has said congressional investigators were told there were no deconfliction problems. There was no crossover they had to worry about with the special counsel`s office if they wanted to look into the president`s business history and finances.
That suggested to the intelligence committee that the special counsel wasn`t looking at any of those matters when it came to investigating the president`s potential compromise. Well, is that true? Did they look at that? Are we now allowed to know that?
Question number nine. Now that the special counsel`s office closed its investigation, do we get to see the full unredacted memo that laid out the scope of stuff they were authorized to investigate?
Question number ten, do we get to see the president`s written answers that he submitted to the special counsel? He didn`t do an interview but he submitted a take-home test. The president now says he believes this investigation has exonerated him and he did nothing wrong, if so, he should be pleased to show his written testimony to the public. So far, the president`s lawyers are indicating there is no way that will happen but what are they afraid of?
And then there`s this big-picture stuff of where we go from here. What`s going to be cut out of the Mueller report before we and Congress are allowed to see it? And when are we going to be allowed to see it? I mean, this is number 11. This is probably my favorite of all these questions because at least on this, this is one thing that unites all of us.
Everybody from the super conservative right wing "Wall Street Journal" editorial board to the New York Times editorial board on the other side, to 420 members of the House of Representatives who voted unanimously for it, to the president himself today to tons of Republican senators who are supportive of the president, everybody is all on one page, all in agreement that we all now need to see not William Barr`s description of the Mueller report but the actual Mueller report.
So, that`s the big unifying question for the country. When does that happen? And how much of it is going to be cut out before we`re allowed to see it and who`s going to decide what`s going to be cut out of it before we`re allowed to see it?
Six Democratic chairs from the House tonight wrote to the Justice Department saying they want a full and unredacted copy of the report by next Tuesday, by a week from tomorrow. We shall see but it`s worth noting that the president has called for it to be fully released.
Number 12. Will Mueller testify to Congress? Will the Justice Department allow him to testify if Congress asks him to be there or if they subpoena him to be there? If the Justice Department tries to block Mueller from testifying and answering questions about his investigation, how will that be adjudicated and how long will it take to get a resolution?
Question 13: Can Democrats in Congress get the underlying evidence from Mueller`s investigation in addition to the Mueller report itself? Remember the truckloads of evidence, van loads of evidence the Ken Starr investigation drove up to Capitol Hill to accompany that sordid written report that the Starr investigation did about Bill Clinton? Will this Congress get access to the underlying evidence, too, or just the report or worse than that, just the redacted report or worse even than that, just William Barr`s assertions about what the report might say?
Fourteen. In real terms, not just in technical law school textbook ideal world situation, but in real terms, does the disillusion of the special counsel`s office now have knock-on effects for the other investigations that have derived from their work? It`s a long list. There`s a lot of people still awaiting sentencing.
There`s a couple of trials that are still on deck. There`s a whole bunch of pending up investigations, at least publicly reported from the U.S. attorney`s office in the Southern District of New York and in Los Angeles, and in the Eastern District of New York and the Eastern District of Virginia and the D.C. U.S. attorney`s office, not to mention the New York state investigations and the inaugural committee investigations that have started in the offices of New York state attorneys general, New Jersey attorney general and the D.C. attorney general. I mean, does the disillusion of the special counsel`s office have knock-on effects of the conduct of those investigations.
Does the investigation collected by the special counsel that may relate or help all of those other investigations, does that all get preserved and shared and who will make those decisions?
And just one last one. While we are on the subject of ideal versus real, while we are on the subject of pie in the sky, or real-world circumstances, when it comes to the bottom line for this moment in American history. When it comes to the bottom line that we have been through a remarkable thing, we have been through a circumstance in which a hostile foreign adversary launched a complex and sophisticated attack to interfere with the presidential election to get the favorite candidate into the White House and he in fact got into the White House.
When it comes to that bottom line, now that President Trump is praising Robert Mueller as an honorable man and talking about what a great country this is and expressing such great satisfaction with what Barr says are the findings of Mueller`s report, does this mean that President Trump agrees with Mueller`s findings about Russia attacking our election? Can we expect president Trump and the Trump White House to finally accept the underlying factual record that Russia did, in fact, attack us? And you don`t do that to another country because you`re their friend?
I know. No, I`m just getting crazy. But the Barr report has given us just this whirlwind of questions. I mean, the Mueller report if and when we see it should answer most of them, but tick tock, how long do we have to wait?
Stay with us.
MADDOW: Broadly speaking, the special counsel had two areas of focus: Russian interference in the election and then whether the president committed obstruction of justice by firing the FBI director after the election. Moving those out of the Justice Department chain of command over to a special counsel was supposed to give we the American people confidence in the investigation.
On the first part, the Russia part, the attorney general says the special counsel investigated that and reached a decision. But why on the part that is arguably about the Justice Department itself, why in the second part of the investigation, why would the special counsel kick that part back to the Justice Department`s own top brass? Why would the attorney general take that part for himself to decide whether or not there was criminal behavior? That to me makes no sense.
Joining us now is a veteran of the Justice Department from the department`s national security division. David Laufman ran that division`s counterintelligence and export control section under President Obama and through the entire first year of the Trump administration.
Mr. Laufman, thank you for being here. It`s nice to see you.
DAVID LAUFMAN, FORMER CHIEF OF DOJ`S COUNTERINTEL & EXPORT CONTROL SECTION: Good to see you again.
MATTHEWS: So, first of all, let me get your gut reaction what we learned from Attorney General William Barr?
LAUFMAN: Well, I mean, it`s important to hear the declaration, with respect to the Russia interference part of the investigation. He set it out fairly declarative. It`s hard to discern from the snippets he included in the special counsel report whether the special counsel found no credible evidence of collusion or coordination with the Russian authorities or instead, it`s more likely didn`t find sufficient admissible evidence to determine that a crime was committed.
But they set it out declaratively after an exhaustive investigation. I have the highest admiration for Mueller and his team and if that`s what they found, then so be it. If they conducted it on an exhaustive investigation and the evidence wasn`t there, then we would have that gratitude for that piece. As far as the obstruction piece goes --
MADDOW: Before on the obstruction piece though --
MADDOW: -- on that point, let me ask you if they did have come to significant findings about involvement with the Russian attack on the election that maybe didn`t rise to the level of something they were going to be able to prove in a court of law or if there were other important findings in terms of people being under the influence or being compromised by a foreign power, would you expect that that information would be briefed to the intelligence committees or included as the finding of the counterintelligence part of his remit?
LAUFMAN: I think it`s likely that all their counterintelligence related findings would ultimately be briefed to pertinent officials of Congress. Those findings might not be included in the, quote/unquote, Mueller report that`s the subject of the letter. There is likely a classified addendum to this report that may set out other findings and classified information.
MADDOW: In terms of the obstruction of justice, part of this, what`s your reaction to what William Barr is describing?
LAUFMAN: Well, I have to say, I was shocked and remain bewildered as to why the special counsel did not conduct the customary balancing test set out under the principles of federal prosecution, guide book for all prosecutors by assessing whether there was sufficient admissible evidence to charge the president with an obstruction and if so, whether there were considerations, policy, litigation risk, likely defenses to be presented, risk of disclosure of classified information, a bucket of other variables that would be applied in determining what recommendation to make the department.
Instead, we have recitation that he conducted, as we might expect, an exhausted factual investigation not to engage in the careful balancing of factors and we just don`t have any visibility into what his reasons were for that.
MADDOW: Is it possible that he didn`t believe he had the option, that he believed it was his job to layout the facts but not convey a recommendation to not make a prosecutorial decision?
LAUFMAN: I mean, it is a possibility. But in some respects, then why go through the exhaustive effort of conducting one of the most probing criminal investigations in the history of the Department of Justice and leave it in an unresolved state. In essence, putting at risk the work he did by committing it to the discretion of the two most senior political appointees in the Department of Justice, who not unexpectedly filled that void by substituting their judgment for the judgment we expected the special counsel to exercise.
MADDOW: Would you have expected, given what Robert Mueller did and again, we don`t have access to it before and don`t know why he didn`t make a prosecutorial decision here. We don`t know if he felt constrained or if it was a judgment call or whatever it was. But given that that`s what he did, that he only conveyed factual information and no recommendation, was it proper for the attorney general, William Barr, to jump into that void and say, well, I`ll say there is no crime here? Was that his job?
LAUFMAN: I don`t think it was improper for Attorney General Barr and Deputy Attorney General Rosenstein in that circumstance to under take the work they probably expected the special counsel to do, which was render the decision up or down on whether to recommend the charge. It was certainly within the scope of their responsibilities. There`s nothing in the special counsel regs that preclude them from doing that, to bring this matter to some form of closure within the umbrella of Department of Justice.
What Congress does is another story. But it would have been almost equally bizarre to leave the obstruction piece hanging out there without any kind of resolution but again, we don`t have any visibility into the reasoning that Barr and Rosenstein employed in determining there was insufficient evidence and reaching policy considerations. They`re not required to write a report so it`s going to await further investigative journalism or congressional investigations to peel that onion to find out what their reasoning was in addition to the reasoning the special counsel brought in determining not to engage in the balancing.
MADDOW: Ultimately, when this next part of this process happens and they decide what can be -- what should be extracted from the Mueller report before it`s further conveyed to Congress, are you confident what we`re going to get is going to answer some of these questions?
LAUFMAN: I think it will answer some of the questions.
LAUFMAN: I mean, it`s going to be customary for them to excise grand jury information, that there`s a classified addendum to this report that`s going to have to undergo a classification review. There`s going to be limits I think to what we see and when we see it.
But over the course of time, I expect because public interest in this matter is at the zenith, we`re likely to see more rather than less.
MADDOW: David Laufman, who ran the National Security Division`s Counterintelligence Section under President Obama, sir, thank you very much for being here. It`s really good to have you here tonight.
LAUFMAN: Nice to see you. Thank you.
MADDOW: All right. More questions from the investigation and we think some more answers just ahead. Stay with us.
MADDOW: Joining us now is Chuck Rosenberg, former senior FBI and Justice Department official. Also, former U.S. attorney in the Eastern District of Virginia.
Chuck, great to have you here. Thanks for coming on.
CHUCK ROSENBERG, FORMER U.S. ATTORNEY: My pleasure.
MADDOW: It`s nice to have David Laufman here, and you here as well. I know you worked together and you have a lot of mature respect there.
ROSENBERG: My old colleague, and I do certainly respect him.
MADDOW: Yes. I want to ask for your own take, I think that`s been greeted with the most surprise from Barr`s statement, Barr`s report as it were, saying that the special counsel elected not to make a prosecutorial decision on the issue of obstruction of justice, and so the attorney general decided he`d do it instead.
Does it surprise you the way it surprised David Laufman that Mueller would not make that prosecutorial decision?
ROSENBERG: Yes, it does surprise me. But, like David, I have the utmost respect for Bob Mueller. I worked for him. So, if he didn`t do it I`m confident he didn`t do it for a good reason. What`s frustrating to me is I just don`t know what that good reason is.
MADDOW: Right. Well, I doubt it was because he was shirking the responsibility because it seemed like a hard call. That appears to be -- it`s frustrating to me because that Attorney General William Barr appears to be positing that, as if there`s something wrong with Mueller, that he didn`t want to do that hard work, it was too difficult. That seems very unlikely to me.
ROSENBERG: It`s impossible to me.
MADDOW: And what seems, therefore, more likely, is that Mueller felt he was constrained from being able to do that and therefore went up to the line and laying out factual concerns, but didn`t make that a prosecutorial declaration for a reason.
ROSENBERG: Well, if we can take Barr`s letter at its word, no pun intended, Bob Mueller did not shirk from making a recommendation on that first bucket, whether or not there was interference in the election and anyone conspired with the Russians. He did make a recommendation there.
So, it seems incongruous to me. That he would make it on that first issue, but not on the second.
MADDOW: So, what do we make of this?
ROSENBERG: So, there`s a possibility, I don`t think this is a crazy idea, that because you cannot charge a sitting president, maybe Mueller and his team thought that you shouldn`t sort of attach the same stigma by saying you would have charged that person, but for the fact that he`s a sitting president. Meaning, you know, we`re just going to stay away from this issue altogether.
By the way, every sitting president, one day becomes a former president, and could conceivably be charged then, even with a new administration in power.
MADDOW: I have one more question I want to ask you on this subject, Chuck. Will you stay with us?
ROSENBERG: Oh, absolutely.
MADDOW: All right. We`ll be back with Chuck Rosenberg right after this.
MADDOW: Back with us now is former senior FBI and Justice Department official, Chuck Rosenberg.
Chuck, thank you.
ROSENBERG: My pleasure.
MADDOW: We don`t have the Mueller report. We have Barr`s assertion of what its principle conclusions are. There is widespread appetite across the United States and across the ideological spectrum that we ought to see Mueller`s report. In part, that may be decided alongside the question of whether or not Mueller can testify to Congress.
If the Justice Department doesn`t want to let Mueller testify, how will that get adjudicated? Congress sends him a subpoena, the Justice Department says, no, he`s not testifying, who ultimately decides that?
ROSENBERG: Normally, it`s done by accommodation. It`s done by parties in good faith, negotiating his appearance and the terms of what he can and cannot say. If they actually have to litigate this thing, Rachel, that could be a long, lengthy mess.
And so, when this has happened, this sort of standoff, you carve out portions that are acceptable and those that are off limits and off you go. That`s probably how it would happen.
MADDOW: Under normal circumstances.
ROSENBERG: Which is a big caveat.
MADDOW: Which is the asterisk we all live under like it`s a second sun.
Chuck Rosenberg, thank you so much, my friend. Thank you.
ROSENBERG: My pleasure.
MADDOW: All right. That does it for us tonight. We will see you again tomorrow.
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. END