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Barr repeats vow to be transparent. TRANSCRIPT: 4/9/19. The Rachel Maddow Show.

Guests: Lawrence Summers, Neal Katyal

CHRIS HAYES, MSNBC HOST:  That`s ALL IN for this evening. 

"THE RACHEL MADDOW SHOW" starts right now. 

Good evening, Rachel.

RACHEL MADDOW, MSNBC HOST:  You can`t spring that on me. 

HAYES:  It was a delightful surprise.  It was fantastic piece of work and I was very happy to see it recognized. 

MADDOW:  It means the world coming from you.  We are totally flummoxed that it happened.  It`s very nice.  And now, you have flummoxed me in the immediate sense by saying it right at the start of the show.  Thanks a lotm, my friend.

HAYES:  You bet.

MADDOW:  Thanks.  I wasn`t going to bring that up.  It`s very exciting.  Let`s never speak of that again. 

All right.  The interview started at 10:00 a.m.  It ended at 2:00 p.m.  So, it was a four-hour thing all in all.  They were pretty much almost done.  They`re well into that final hour, when they took one last recess.  And after that last recess, there was one last round of questions. 

And here`s how it started.  Quote: Back on the record.  It is 1:37 p.m.  I am Susanne Grooms.  The witness, former FBI general counsel Jim Baker says "yes." 

Question, can you explain what the atmosphere was like at the FBI after the president fired James Comey?  Answer, Jim Baker: I`m not sure that I can reduce it to one or two words.  It doesn`t, I guess, horrible atmosphere.  It was shock, dismay, confusion, at least initially that night, and then -- and then a sense of resolve that came pretty quickly as well to continue the FBI`s mission.  And as I was saying earlier to the congressman, make sure that we were all adhering to our oaths to the Constitution and executing our responsibilities.

Question, was there a concern at the FBI the president had fired Director Comey because he was trying to obstruct the FBI`s investigation into the Russia matter?  Answer, Jim Baker, yes.  Question, was that a concern that you had?  Answer, Jim Baker, yes. 

Question, was that concern shared by others?  Answer, I think so, yes.  Question, who, who else?  Answer, the leadership of the FBI.  So the acting director -- I can`t remember if we appointed an acting deputy director immediately.  The heads of the national security opera apparatus, national security folks in the FBI.  The people who are aware of the underlying investigation and who had been focused on it.

Question: was there a question of opening a case into the obstructions of justice matter?  Answer, I am looking at the FBI -- meaning I`m looking at the FBI lawyer who was there in that room to see if you have any objection to me answering this question in this format.  At which point Ms. Redacted, the FBI lawyer says, could you restate your question, please?  The investigator says, sure.  Was there discussion about opening a case to investigate the matter?  Ms. Redacted, the FBI lawyer, says, OK.  So, that would call for a yes or no response.  If we go further into that we may have to stop the witness from answering. 

Answer from Jim Baker, former FBI general counsel.  He says "yes."  So, yes, there was concern by me, the FBI broadly, head of the FBI, by the national security experts within the FBI, by everybody involved in the underlying investigation that involved the president and his campaign at that point.  Yes, he says, there were concerns that the president was committing obstruction of justice to try to block the FBI`s investigation into the Russia case, and, yes, yes, he says, a case was opened into the president`s potential obstruction.  Yes. 

The man testifying there was Jim Baker, former general counsel in the FBI.  Before he was general counsel, a top lawyer in the FBI, he was a top official at the U.S. Justice Department.  During 9/11, he was the head of the office of intelligence policy and review at the Justice Department which means that in the aftermath of 9/11 he was the lead official at the U.S. Justice Department for counterterrorism and counterintelligence in the U.S. government.  He is a very senior, very experienced, very serious national security official. 

Today, we learned that with that background, Jim Baker and all the other senior national security officials at the FBI were very concerned that the president appeared to be taking action including firing the FBI director specifically to obstruct the FBI`s investigation into the Russia matter.  Now, the reason we know that, the reason we have that, that Q&A, that transcript, is because the Republican members of the Judiciary Committee in the House released this transcript today of Jim Baker testifying last year to their committee behind closed doors.  And I`m not sure why they released this now, why they think this helps their case.  That nobody should worry about the Russia thing. 

I mean, among other things, this transcript they released today includes this very, very, very experienced national security officer official expressing just how worrying it was, what the FBI was investigating, and what the FBI was finding out, about Donald Trump and his campaign.  The questioner here in this part of the transcript is actually a member of Congress.  It`s Jamie Raskin, Democratic congressman from Maryland. 

So here`s the question from Congressman Raskin.  Quote: When you first learned about a tip that the Russian government could be coordinating with the Trump campaign, what was your reaction to that, were you concerned or alarmed by that?  Answer, Jim Baker, I was alarmed by that, yes.

Question: as the evidence developed to the point where the FBI launched an official investigation, did your thinking change, had you grown more alarmed than concerned or less so?  Answer, Jim Baker, I guess I grew more alarmed over time. 

Question, how often does the FBI investigate a potential coordination between a presidential campaign in our country and a foreign adversary?  Is that a common thing?  Answer, Jim Baker, I think this is the first instance that I`m aware of. 

Question, and what was your estimate of the national security risk involved in such potential coordination?  How important was the case?  Answer, Jim Baker, I view the case as very important.

So, he`s saying this was a very important case in national security terms.  Nothing like this had ever happened before, had ever even been investigated before involving an American presidential campaign.  He said what the FBI was investigating was concerning from the get-go, from the very beginning, it only became more concerning over time as they pursued their investigation. 

And when the FBI director was fired by the president in the midst of that FBI investigation, there was serious concern among the most senior national security officials in the country that the president was doing that to obstruct.  To use his power as president to block that very serious FBI investigation.  And we know that now because this transcript was just released today. 

It is now -- it was three Fridays ago that special counsel Robert Mueller submitted his report on the findings of his investigation into the Russian attack on our election, potential American complicity in that attack, and the question of whether or not anybody tries to on instruct that investigation.  On this issue of obstruction, Attorney General William Barr so far hasn`t released anything from Mueller`s report, Mueller`s evidence, Mueller`s findings, except this description. 

After making a thorough factual investigation into these matters, the special counsel considered whether to evaluate the conduct over department standards governing prosecution and declination decisions but ultimately determined not to make a traditional prosecutorial judgment.  Special counsel, therefore, did not draw a conclusion one way or another as to whether the examined conduct constituted obstructed.  The special counsel states that while this report does not conclude that the president committed a crime, it also does not exonerate him.

That`s all the attorney general released on the obstruction issue.  We don`t know what Robert Mueller found on obstruction.  We don`t know what the facts were that he uncovered.  We don`t know why what Mueller found doesn`t exonerate the president in Mueller`s words. 

Nor do we know why Mueller didn`t make a traditional prosecutorial judgment about obstruction.  I mean, that`s -- that`s all the more striking and interesting in light of this news we just got today act how freaked out the whole national security law enforcement apparatus in this country was about the president potentially obstructing the Russia investigation, by among other things canning the head of the FBI.  I mean, we do know that Barr 2 1/2 weeks ago jumped right in, himself, anyway, and proclaimed his own instant finding that the president definitely shouldn`t be prosecuted for obstruction, and we should take his word for it, even though he won`t let us see what Mueller turned up.  That announcement was 2 1/2 weeks ago from the attorney general. 

Today was Attorney General William Barr`s first public appearance since he made that very, very public, very controversial, very puzzling, declaration.  First time since then.  First time since he got the Mueller report.  First time since he`s done all this stuff that he`s done with the Mueller report. 

Finally, today, with him appearing in public, with him appearing in congress, we knew we would get some explanation from him as to why he declared that the president definitely didn`t commit a crime.  We`d finally get some explanation from him as to what basis he used to -- on what basis he concluded that the president didn`t commit a crime.  Also, presumably we`d get some explanation from him as to why he thought it was his job to proclaim that the president didn`t commit any crime. 

At least you`d think we would have gotten that today in his first appearance since the Mueller report was handed into him and he stuffed it deep into a desk drawer somewhere.  You`d think we`d get answers to all of those questions, but it turns out nobody asked him at his appearance today in Congress.  Nobody asked him about his declaration that the president didn`t commit a crime when it comes to obstruction.  At least nobody asked him directly.  Nobody asked him directly in a way that made him feel any need to answer. 

Senators will have another crack at William Barr tomorrow when he does one more congressional appearance before part of the Senate Appropriations Committee, but if you`re at all interested in the question of whether Mueller`s findings were ever going to see the light of day, or whether the Trump administration will be allowed to keep those findings secret, you better hope that senators, at least the Democratic ones who appear to care about this issue, you better hope that those senators are preparing for tomorrow`s hearing with William Barr with some seriousness. 

Senators, it`s called a follow-up question.  Listen to what he says and then follow up and press him a little more.  It`s called knowing what your colleagues are planning on asking so you don`t all ask the same thing.  It`s called taking your no doze pills with your OJs, Senators.  Come on, chop, chop.  Because there does appear to be a lot to get out of this attorney general and this attorney general does appear to be making it up as he goes along. 

Even today under basically no inquisitive pressure whatsoever today from a committee that appeared to be mostly asleep for the entire time he was there, even with him facing basically no hard questions today, he still had a lot to spill.  Imagine what would happen if he were actually pressed. 


WILLIAM BARR, ATTORNEY GENERAL:  I have already said that I think the situation here requires me to exercise my discretion to get as much information out as I can and I think these categories, I think most fair- minded people would agree are things that have to be redacted. 

REP. TOM GRAVES (R-GA):  Right.  And I guess, just thinking about the chairman of the Judiciary, he -- if he were to release or any member of Congress were to release the full report of redacted version of report, are they in compliance with the law or violation of the law and what --

BARR:  I don`t want to speculation about all the circumstances that would be involved.  I don`t intend at this stage to send the full unredacted report to the committee.  So, I`m not sure where he would get it.  If he got it directly from the counsel, that would be unfortunate.  I doubt that would happen. 


MADDOW:  Maybe he`d get it directly from the counsel.  That`d be unfortunate.  Hmm. 

What?  That was the attorney general today under gentle almost soporific questioning from a Republican member of Congress who was trying to get him to say it would be terrible if someone in Congress got ahold of the whole unredacted Mueller report and leaked it to the public or leaked the parts that were supposed to be redacted by the attorney general.  In response, the attorney general suggested, wait, how would a member of Congress, how would the Judiciary Committee, say get an unredacted copy of Mueller`s report? 

He then sort of fantasized it, sort of just thinks out loud, well, I suppose he can get it directly from Robert Mueller.  He could get the whole unredacted report directly from the special counsel.  I guess he could do that.  That would be unfortunate. 

Say what now?  Whoop.  Raise your hand if you even knew that was a possibility, unfortunately or not.  I mean, the attorney general sort of accidentally suggesting today that, yes, Robert Mueller could give his confidential report to the Justice Department. 

He could also just convey it to Congress.  Why not?  He could just give it to Jerry Nadler.  That would be unfortunate if he gave him the whole full unredacted report.  Wouldn`t that be just, you know, sad? 

Maybe somebody could follow up on that with additional questions for the attorney general.  Is that possible? 

The attorney general today said his edited version of Mueller`s report, with a whole bunch of redactions cut out of it, he said that will be released within a week.  He said flatly that he has no intention of giving the Congress the full report without the cuts. 

When it comes to what he wants to cut out of it, he said he will cut out grand jury material, even though courts in the past have agreed to allow the release of grand jury material to Congress.  He said today he`s not going to ask any court to do that.  He just doesn`t want to ask. 


REP. ED CASE (D-HI):  Are you intending to go to court to ask for guidance and/or direction and/or an order where you are uncertain whether you can, in fact, release or should, in fact, release materials? 

BARR:  No, but, I mean, the chairman of the judiciary committee is free to go to court if he feels one of those exceptions is applicable. 

CASE:  The right is yours to ask for these exceptions.

BARR:  Well -- why do you say the right is mine? 

CASE:  Because you are the exercising authority under 6E. 

BARR:  Yes.  But I think if the chairman believes that he`s entitled to receive it, he can move the court for it. 

CASE:  Well, I`ll come back to this.  It`s your right to ask, so I`m asking, what is your intention? 

BARR:  My intention is not to ask for it at this stage. 


MADDOW:  I`m not going to ask for it.  The attorney general says, no, he`s not going to ask a court to allow him to release the grand jury material in Mueller`s report to Congress.  Why would I do that? 

This is the first time he`s actually addressed that question.  He has left that as an open question since the Judiciary Committee has been demanding that he make that request of a court.  Today, he said, nah, why would I do that? 

It earned this response from Judiciary Chairman Jerry Nadler. 


REPORTER:  The attorney general said in pretty much no uncertain terms he had no intentions of releasing -- going to the court to release the grand jury information to Congress and punted to you on that front.  What do you think about that stance? 

REP. JERROLD NADLER (D-NY):  Well, I think it`s unfortunate.  We`ve been doing everything we could for the last, I don`t know, weeks and weeks to try to reach an accommodation to the attorney general in which we would see the report and the underlying evidence.  He has been unresponsive to our requests. 

And this is just more evidence that he`s -- he`s not going to -- we will certainly -- we will certainly -- we get the report, I assume, the end of this week, beginning of next week, yes, if it doesn`t have everything that we required to do our work, which is to say the entire work and the underlying evidence in it, we will issue the subpoenas forthwith and we will go to court to ask for release of the 6E material. 

It`s unfortunate that he won`t, he won`t join us.  Previous attorney generals have joined the Congress in in that request.  Every similar case. 

REPORTER:  What do you make of Barr`s specific contention that Congress is not exempt from grant jury secrecy laws? 

NADLER:  Well, Congress is not exempt in the sense that we need a court order, but Congress has certainly gotten that court order in every similar situation in the past.  Congress has always gotten the grand jury information in the Clinton situation, in the Nixon situation, and in many others. 

REPORTER:  Barr seemed to put the ball in your court in terms of asking for the grand jury information.  Is that something you would do? 

NADLER:  Oh, absolutely, we`re going to do that. 


MADDOW:  Oh, absolutely, we`re going to do that, even though the attorney general will not join us in trying to free that information up. 

As soon as William Barr, the attorney general, hands over his cut-up, edited, Jefferson bible version of the report, Chairman Nadler, the Judiciary Committee, says he`s going to subpoena the whole thing.  The whole unredacted version, including asking for a court order to release any grand jury information that Barr has cut out of it, plus all the underlying evidence that goes along with it. 

Now, there`s two new things we just learned about that.  Number one, William Barr`s refusal to ask the court to release that material to Congress, and Nadler saying, OK, then we`ll do it, it raises a brand-new prospect we have not had to face before.  It raises the prospect that one of the things that House Judiciary Committee might have to do is they might have to open an impeachment inquiry into President Trump, as a formal matter, so the court would recognize them as being in the midst of a judicial proceeding that could legally receive that grand jury stuff. 

They would not have to open this grand jury proceeding because they`re intent on impeaching the president, right -- excuse me, they would not have to open this impeachment proceeding because they`re intent on impeaching the president right now, they would have to open it up just so they could receive that material from the court. 

Democrats, of course, have not wanted to open impeachment proceedings against President Trump, basically for political reasons, but it`s possible they might need to now if they want a court to give them Mueller`s evidence.  Since the attorney general won`t help them get it.  That is, of course, provided that Robert Mueller, himself, doesn`t just walk his report over to Capitol Hill and hand it to Jerry Nadler, which the attorney general suggested today is an unfortunate possibility, even if it`s one that nobody knew of before he kind of smirked that out today casually. 

Provided that doesn`t happen, this new idea that House Democrats might have to formally open an impeachment inquiry into Trump in order to get a report, that`s a brand-new twist in this saga.  It has legal elements.  It has political elements.  We`re going to get expert advice on that in just a moment. 

But the other curveball that Barr threw today, and this is something we just don`t have a way to check, and it doesn`t seem to make much sense on its face the way he said it, but it is what he said.  The other curveball Barr threw today has to do with the four categories of things that Barr says he`s now cutting out of the Mueller report. 

Remember he said he`s cutting not just the grand jury information, which is the thing they have to go to court to try to get an order to release that information, he says he`s also cutting information that could impact ongoing investigations.  He says he`s also cutting information that could impact the privacy or the reparations of peripheral third parties.  And he says he`s cutting information that the intelligence community wants cut out for its own reasons. 

That list of four categories of information, that -- that stuff that all has to be cut out of Robert Mueller`s report before any of Mueller`s report gets shown to Congress, that is something that appeared, like, fully formed in the sky as if it were a rainbow ending in the attorney general`s head.  You know? 

This list of stuff that has to be cut out of the report, it`s not from the special counsel regulations.  This is, like, a miracle of spring.  This isn`t even the initial list of things that Attorney General Barr said he`d cut.  It`s just now what he says he is currently doing.  And we`re supposed to assume there`s a quasi legal framework under which he`s made the decisions that this is what he has to cut but we take his word for it. 

Today, though, check this out.  He said when it comes to making all of these different categories of cuts, he said in the first three of those four categories, it`s Robert Mueller.  It`s the special counsel`s office that`s choosing what gets cut.  Really?  Choosing what gets cut out of their own report.  Really? 

At least that is what the attorney general seemed to suggest today under questioning from Hawaii Congressman Ed Case.  Questioning I should say that seemed to unnerve the attorney general just a little bit. 


BARR:  I`ve already explained the information that`s going to be redacted from the report, the four categories.  That is what`s going to govern the redactions, and in fact, the special counsel and his staff are helping us select the information in the report that falls into those four categories. 

CASE:  We`re sitting here, from my perspective, with virtually unlimited discretion for you to redact from that document.  And maybe if I trusted my government more, I would be comfortable with that, but since I don`t, I`m not comfortable with that, and I`m looking for some way in which your judgment, which is going to be the arbiter, as I understand it, of what the public sees, the arbiter, it`s you, ultimately, can be overseen. 

I`ve suggested to you that under 6E, there are procedures under which you can go to court to ask the court to give you guidance, direction, or an order.  I`m not sure whether you will do that or not. 

BARR:  I think I sort of addressed that.  I identified the four categories, and the team that includes the special counsel office lawyers are implementing that. 

CASE:  Can you --

BARR:  So they are the ones redacting what is 6E. 

CASE:  Is there --

BARR:  They`re the ones who conducted the investigation.  They know what is 6E and what is not 6E.  That`s why I`m dependent on the special counsel to identify 6E.  And the intelligence community will identify the intelligence stuff. 

CASE:  Do you --

BARR:  And the lawyers who are prosecuting the cases and the special counsel`s office can identify whether there`s going to be a conflict between releasing any information and a court order or ongoing prosecution.  And the special counsel`s office knows who the peripheral players are that they`ve said shouldn`t be charged.  So those are the categories. 


MADDOW:  Does this mean we`re getting 6E back?  I mean, when he -- when he says those -- put that list back up again.  Put the list back -- OK. 

6E is the grand jury information.  So he`s redacting 6E stuff.  That`s the grand jury material.  And he`s redacting information that impacts ongoing investigation.  And he`s redacting information about peripheral third parties.  And stuff that the intelligence community wants out. 

He said in Congress today that the first three categories of those redactions are all being decided by Robert Mueller, by the special counsel`s office.  He says he`s dependent on them to determine what`s grand jury, what`s 6E, what relates to ongoing matters and what relates to peripheral third parties.  Well, if so, if this is Mueller clearing his own report for release to Congress, and ultimately for release to the public, then why would Mueller`s team be so mad about what`s getting cut out of their report if they, in fact, are the ones in charge of doing the cutting? 

I mean, something there just doesn`t make sense.  Something maybe the senators questioning William Barr tomorrow might want to nail down and quick because this is all apparently happening now and there`s another piece of it that just unexpectedly broke wide o open tonight, and we`ve got that coming up.  Stay with us. 


MADDOW:  Today as the attorney general appeared in public in Congress for the first time since he received and then promptly, poof, disappeared the Robert Mueller report, there are new questions about the categories of information he says he`s cutting out of Mueller`s report before he shows it even to Congress.  The attorney general asserted today, sort of oddly, that it`s not him who`s making the redactions from Mueller`s report before the report gets shown to anyone. 

He suggested today that actually it`s Mueller, and Mueller`s own staff that are doing the redactions on the first three of these four categories.  Grand jury information, stuff that relates to ongoing investigations, and stuff that relates to peripheral third parties.  The attorney general saying today it`s the lawyers from the special counsel`s office who are making all those redactions.  Essentially questioning why would anybody be concerned about what they`d be cutting out of their own report?  It`s not me, it`s them. 

If that`s true, that would make a lot of difference in terms of whether or not the report has integrity.  Whether or not the report is being submarined or whether it is actually what the special counsel intended for the country and the Congress to see.  If the attorney general was right about that, and he talked about it in a kind of elliptical way, that would be a really big deal.  Hopefully, senators will sort that out with some follow-up questions with the attorney general when he`s back on Capitol Hill tomorrow. 

When it comes to that fourth category of information up there, stuff being cut out of Mueller`s report at the request of the intelligence community, on that one, we got big news today as well because late this afternoon, the head of the intelligence committee announced that actually, no, on that one, he`s planning on getting those redactions undone, himself.  He`s planning on getting all of the intelligence information that`s being cut out of the report given to him as well. 


REP. ADAM SCHIFF (D-CA):  We do expect the department and the agencies to follow the law, and so we`ll be insisting on all the evidence as it pertains to counterintelligence. 

REPORTER:  Did they give you any kind of response? 

SCHIFF:  We have not gotten a response yet.  Our priority has been to support the Judiciary Committee`s effort to make the report public. 

REPORTER:  But in theory, isn`t this information that they should just, that you shouldn`t need to request?

REPORTER:  That you should already have, right?

SCHIFF:  That`s correct.  That`s correct. 

REPORTER:  So the fact that you even have to go about asking for it, what does that say to you? 

SHCIFF:  Well, you know, the reality is that we don`t know the status of the counterintelligence investigation.  And, but we are, like I mentioned, right now, in getting the report, getting it in its entirety, being able to make the report public, but we are going to insist on full information on the counterintelligence investigation. 

What we will insist on being fully informed of the -- any of the findings of the counterintelligence investigation and any of its scope. 

REPORTER:  And who did you make the request to specifically? 

SCHIFF:  I don`t want to bet into the particulars, but I can tell you we have -- we did make the request and we`ll be staying after it. 


MADDOW:  We have made this request.  We`re getting the intelligence information.

And that`s a totally different line of attack in terms of getting information that the attorney general might want to cut out of the report.  That`s a totally different line of attack, line of approach than the Judiciary Committee or any other part of Congress might be taking to get anything else that Barr is cutting. 

So, today was the first time the attorney general has appeared in public since he got Mueller`s report 2 1/2 weeks ago.  And subsequently started releasing statements about it and announcing things, he`s going to cut out of it.  I mean, we still don`t know why the attorney general announced that the president shouldn`t be prosecuted for obstruction even though Robert Mueller concluded no such thing.  Nobody asked William Barr about that today at today`s hearing.

But Congress is saying they`re getting all of Mueller`s report without redactions.  The intelligence committee chair saying as of tonight that even the intelligence stuff needs to go to him intact.  And now this fight is fully on, including a basic fight we didn`t even know to expect about the facts to try to figure out whether Mueller`s team, itself, is involved in this part of the process, or whether they are, as a lot of people fear, whether they are bystanders while William Barr is overseeing all this stuff being cut out of their report and their findings and their evidence against their will. 

We don`t even know the facts of that process now given these remarks from the attorney general, let alone what Mueller`s actual findings were.  I got to say, one of the most unexpected and remarkable things about this entire part of this saga is that this newly appointed attorney general who is not a babe in the woods, he was attorney general before.  He`s an experienced guy, he`s a seasoned D.C. pro. 

What has been one of the most remarkable things to see in this whole saga is that he is making it up as he goes.  He changes the story and his explanation and even what he describes as the facts of what he, himself, is doing.  He changes it a little bit every single time he talks about this issue. 

Well, tomorrow he`s going to have to talk about it again, and based on all the dangling threads he left today, I`m guessing tomorrow is going to go worse than today did, but watch this space.


MADDOW:  Neal Katyal is the former acting solicitor general in the Obama administration.  He`s also the author of the Justice Department regulations that defined the office of special counsel. 

Neal Katyal joins us live tonight.

Neal, thanks very much for being here.  I really appreciate your time.


MADDOW:  Let me ask you about something that startled a lot of people today at the remarks from Attorney General Barr at this congressional oversight hearing.  For the first time, he refused to answer when he was asked if he has shown the White House Mueller`s report or if he has briefed them on its contents.  Previously, the Justice Department and the attorney general`s office have said they haven`t provided that information to the White House.  Previously, the White House has affirmed that they hadn`t seen it.

But today, both the Justice Department and White House refused to reaffirm those previous statements and Barr wouldn`t answer questions about it in Congress.  That raises the prospect that he has now briefed the contents of Mueller`s report to the White House before Congress has seen it. 

Is that something you anticipated at all in the special counsel regulations?  How does that fit within his remit? 

KATYAL:  Heck, no.  I mean, I was really quite startled, to use your word, I mean, it felt really a little Kremliny today, really hiding information from the American people.  And the attorney general today was acting really not like the attorney general of the people of the United States but the attorney general of the Republican Party.  This is, remember, a guy confirmed by a four-vote margin, with 44 Democrats who voted against him.  He only got three Democratic votes.  He got 51 Republican votes. 

But he`s acting that way.  He`s acting that way by not telling the Congress whether or not he gave the report or information about the report to the White House.  He`s acted that way throughout.  He cleared the president in 48 hours of the obstruction of justice charges that Mueller didn`t resolve in two years. 

He`s done all kinds of things.  I mean, startlingly today he said, I`m not going to even go and bother the court on releasing the grand jury information.  Something that Ken Starr and Leon Jaworski, the two prior special prosecutors did.  So, he`s not even willing to play by Ken Starr`s rules.  So, yes, I think I`m very, very troubled, Rachel. 

MADDOW:  In terms of that possibility about the -- the possibility of a court giving permission to release that grand jury material, one of the things that was discussed today sort of implicitly in Barr`s hearing, explicitly later in the day by Jerry Nadler responding to the attorney general`s testimony.  It`s now starting to be discussed more broadly around this whole issue is the prospect that if Nadler without Barr`s help, if Nadler, alone, as the judiciary committee chairman is going to go to the court and request to see this information, and knowing that this kind of information has been handed over to Congress in previous investigations of previous presidents, he might have to open up an impeachment inquiry into President Trump in order for the court to feel comfortable conveying that grand jury information to him. 

What`s your perspective on that? 

KATYAL:  Yes, I don`t think that`s necessary.  After all, Ken Starr went to the court when there was no formal impeachment inquiry and got it granted but I do think there`s a really important tell in your question because it really does go to is Barr being up and up with the American people? 

I mean, when I was at the Justice Department, there were these people who I called legal Houdinis who they would find any law, they would find a loophole and a way around it and often very tendentious and not true and, you know, these are people who didn`t respect the rule of law.  But, you know, those people were there. 

But I never found someone at the Justice Department quite like Barr, which is a 99 percent legal Houdini but 1 percent of the time a Dr. No, someone who reads these legal restrictions, like grand jury 6E, or what he claims about the special counsel regulations say, oh, I couldn`t possibly do that, that would violate 6E, you`d need a formal impeachment inquiry, you need this, you need that.  You know, that combination of 99 percent legal Houdini, 1 percent Dr. No is a really troubling one.  It`s not up and up.  It`s someone who`s willing to read the rules broadly to protect the president, like his obstruction of justice memos, 19-page memo. 

His whole career has been built on being a legal Houdini.  When it comes to keeping information from the Congress and the American people, oh, no, all of a sudden everything`s got to be read so tightly.  It`s not the real spirit. 

MADDOW:  Neal Katyal, former acting solicitor general in the Obama administration -- Neal, I appreciate you being here tonight.  Thanks.

KATYAL:  Thank you.

MADDOW:  All right.  We`ve got much more to come tonight.  Stay with us. 


MADDOW:  The chairman of the Ways & Means Committee in the House has set a deadline of April 10th for the commissioner of the IRS to hand over to Congress, to hand over to him, specifically, the president`s tax returns, his personal returns and a bunch of returns from the president`s business.  He set an April 10th deadline.  April 10th is, of course, tomorrow.

But as of this afternoon, the IRS commissioner appeared to have absolutely no idea whatsoever as to how he planned to respond by tomorrow`s deadline or whether or not Treasury Secretary Steve Mnuchin might try to step in to stop the release of those returns under the law. 


CHARLES RETTIG, IRS COMMISSIONER:  We did receive the letter.  We`re looking into it and expect to respond. 

UNIDENTIFIED MALE:  And so I`ll ask you, how will you respond? 

RETTIG:  We`re working on it. 

UNIDENTIFIED MALE:  Has Treasury talked to you about this decision? 

RETTIG:  They`ve talked to me about the --

UNIDENTIFIED MALE:  Communicated with you is, perhaps, the better way to ask. 

RETTIG:  They`re aware of the fact that we`ve received the letter.  That`s correct. 

UNIDENTIFIED MALE:  Has anyone at Treasury communicated with anyone at the IRS about that decision? 

RETTIG:  Counsel for the IRS has been interactive and I had a brief discussion with the secretary that we received the letter. 

UNIDENTIFIED MALE:  That conversation was just that you received the letter?  Was there something beyond the fact that the letter was received? 


UNIDENTIFIED MALE:  He didn`t request you to act in a certain way? 


UNIDENTIFIED MALE:  He didn`t suggest that he was going to make the decision to you? 

RETTIG:  There was a discussion about -- and that`s what I`m saying about we`re working on it, there was a discussion about who`s going to handle the response. 

UNIDENTIFIED MALE:  And what was -- and what did the treasury secretary say? 

RETTIG:  There`s no conclusion on that. 

UNIDENTIFIED MALE:  Is it your understanding that you have discretion under this sort of a request under the law that you can decide whether or not to comply with a re quest under 6103 of the tax code? 

RETTIG:  I think it would be inappropriate for me to identify what the understanding is with respect to that. 

UNIDENTIFIED MALE:  What have your legal experts told you?  It`s hart to imagine, sir, they`re going to say five minutes until midnight, what are we going to do?  Did they talk to you at all, did you ask whether you have discretion to respond or to comply? 

RETTIG:  I have not asked and I think it`d be premature for me to speculate with you now. 

UNIDENTIFIED MALE:  Would it be premature to ask them if you have discretion? 

RETTIG:  I have not asked. 


MADDOW:  Now that you mention it, I haven`t asked if this is my job, if I have discretion over whether or not to release the tax returns of the president.  Also, I think it would be inappropriate for me to identify my understanding of the issue. 

Also, there was no conclusion on what the treasury secretary plans to do, but don`t worry, we did receive the letter.  We`ll come up with an answer.  I know the deadline is tomorrow.  Is it time for lunch? 

The current Treasury Department may not know how to handle this issue.  But former Clinton treasury secretary Larry summers says it`s actually quite simple.  In a coldly blistering op-ed in the "Washington Post" today, Larry Summers writes what he would do were he in Secretary Mnuchin`s position.  As a former treasury secretary, how would he have approach this?

For the secretary to seek to decide whether to pass on the president`s tax return to Congress would surely be inappropriate and probably illegal, I would surely not have done it.  Rather, I would have indicated to the IRS commissioner that I expected the IRS to comply with the law as always.

Joining us now, very pleased to say, is Lawrence Summers.  He`s the former treasury secretary under President Clinton.  He`s former director of the National Economic Council under President Obama.  He currently serves as economics professor at Harvard University.  He also authored this opinion piece in the "Washington Post" making the case the current treasury secretary shouldn`t stop the IRS commissioner from releasing President Trump`s tax returns. 

Secretary Summers, thank you for joining us.  It`s a real honor to have you here tonight. 


MADDOW:  One of the things I found striking in your op-ed, today, although it is carefully worded, it`s also very unequivocal that this is black letter law, that the IRS commissioner does not have leeway to ignore this request and the treasury secretary does not have leeway to direct his IRS commissioner that he should ignore this request.  Are you staking out a claim for the purposes of argument or are you stating something that`s essentially consensus among everybody who`s looked at these matters before? 

SUMMERS:  I can`t speak for everyone, but I have spoken with a substantial number of legal authorities including those who are in the treasury during my time in office.  I think there is no question at all but that 6103, which has been around since 1924, is unambiguous on the Ways & Means Committee`s right for taxpayer information.  It is not qualified in any way.  It is the obligation to turn those documents over. 

Further, the IRS Restructuring Act which was passed by the Republican Congress in the 1990s makes clear that longstanding delegation order under which the IRS commissioner is responsible for enforcing the tax law and the Internal Revenue Code, not the secretary of the treasury, that that`s delegated by the treasury secretary.  That the treasury secretary is not permitted to casually alter that delegation order, but can only alter it with 30 days` notice to the congressional committee, which has not been given. 

So I think it`s also clear that this is a matter under law that sits with the IRS commissioner.  I don`t see either of those as matters with ambiguity associated with them, and, frankly, the only thing that seems to me clearer than the two propositions I just stated is that it`s inappropriate for the White House to be involved in making dictates about how the president`s tax return is going to be handled. 

MADDOW:  One of the things that emerged today, to that last point, is when Secretary Mnuchin was answering questions in congress, he conceded that members of his staff at treasury have already consulted with the White House about how they are to respond to this demand from the Ways and Means chairman.  They`ve already started talking to the White House about this.  There seemed to be some lack of clarity in Congress, even during that questioning, as to whether or not that was improper or even potentially a violation of the law for Mnuchin`s office to already be talking to the White House about a matter that ought to be handled independently inside IRS. 

SUMMERS:  I mean, there is pretty much clarity here about talking about legal matters affecting individual entities, whether it`s the controversies surrounding Whitewater during the Clinton administration, whether it`s the controversies surrounding the treatment of S&Ls and dialogues with legislators, the Keating Five and all of that, during the first Bush administration.  There is really not any question that when legal judgments are being made affecting particular entities, there is not supposed to be political consultation with the White House.

This is about as well established as anything.  It goes back, you know, many, many years.  Most famously and most egregiously during the Nixon administration, but this has played out during other administrations as well.  When I worked on the White House staff, you know, the first thing we were told was under no circumstances were we involved in any kind of enforcement action being done by any kind of government agency, and certainly not an agency that was supposed to be separate and not political in its activities. 

MADDOW:  Lawrence Summers, former treasury secretary under President Clinton, former director of the National Economic Council under President Obama -- sir, thank you for coming on tonight.  It`s a really pleasure to have you here.  Please come back. 

SUMMERS:  Thank you. 

MADDOW:  All right.  I will say what the secretary is saying there about the clarity of the responsibilities for the IRS commissioner and for the treasury secretary here in terms of what one of them is supposed to do and the way the other one is not supposed to get involved here and the way the White House is not supposed to get involved here, it does seem to be, if not consensus, it does seem to be pretty crystal clear what`s supposed to happen.  What`s not clear is what`s going to happen when they inevitability violate those clear strictures, when the IRS commissioner gives some response that defies the law, when the treasury secretary weighs in and says, no, I`m making this my decision.  When the White House concedes, yes, we told them what to do on this. 

What`s going to be the comeuppance for that?  You know, how is that going to be fixed when they break that norm and potentially that law?  That`s the part of it where we don`t know where this is going. 

Stay with us.  


MADDOW:  Late last week, the president fired the head of ICE.  Sunday, he fired the homeland security secretary.  Monday, he fired the head of the Secret Service. 

Now, he just fired this woman, Claire Grady, the number three official at homeland security.  She`s a career government official.  She spent decades in public service.  Tonight she is out, but it does not appear that the White House targeted her for firing.  It seems like they may have had to fire her to cover up their own previous mistake. 

When the president announced the homeland security secretary was out on Sunday, he apparently didn`t bother to ask anybody if there was any issue with him just sticking in one of his own new guys to take Kirstjen Nielsen`s place.  He just announced on Twitter that he was putting in this guy as acting secretary and I`m sure that felt very tidy to the president, but legally, Homeland Security has a line of succession. 

When they realized that and that Claire Grady was next in line of succession as acting secretary in the event that the secretary was fired or resigned, they realized oh, I guess we`ve got to fire Claire Grady, too.  And so, now, they fired Claire Grady.  Oops. 

And the responsibility for announcing she is leaving fell on Kirstjen Nielsen.  That`s who had to announce tonight that Grady is out.  That`s the last thing they`re having Kirstjen Nielsen do before tomorrow, she departs as her last day on the job. 

Then presumably, they`ll have Claire Grady clean up somebody else`s departure on their way out, too.  Last one out, turn out the lights. 

We`ll be right back.


MADDOW:  That does it for us tonight.  You should know, though, that tomorrow morning, Attorney General William Barr is going to be back in Congress testifying in open session in a Senate committee tomorrow.  It starts at 10:00 a.m. Eastern Time.  I will be the one watching and tweeting about it while eating my Wheaties. 

I`ll see you again tomorrow night. 


Good evening, Lawrence. 

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