LAWRENCE O`DONNELL, MSNBC HOST: Good evening, Rachel.
And we saw, of course, Congressman Adam Schiff, the chairman of the Intelligence Committee, on your program and speaking directly to the whistleblower, as you did too. And I am sure that the whistleblower was watching the chairman tonight.
RACHEL MADDOW, MSNBC HOST, "TRMS": Well, that makes me very unsettled to think about that.
O`DONNELL: I understand.
MADDOW: But there is this weird situation where the whistleblower theoretically can convey that information directly to the committee. But it`s almost impossible to do so legally without the channel being opened for that person. And the Trump administration won`t open the channel. And so, Schiff has to be totally responsible in terms of what he can promise that person in terms of retaliation, protection from prosecution, all of those things. I mean, this is incredibly high stakes for everybody involved at this point.
O`DONNELL: Yes. And as we saw in the inspector general`s letters to the committee today that Adam Schiff released is the inspector general`s work hard to try to open the door for the whistleblower to go straight to the committee and eventually the inspector general just had to tell the committee that he`s reached an impasse with the acting director and the acting director is blocking the way with the support of Attorney General William Barr.
MADDOW: Yes. And Schiff is now warning that the inspector general himself might not be protected from prosecution or reprisal from the Trump administration here as he tries make this thing known. It`s not even his complaint. He`s just trying to take care of it and protect their legal crosshairs by doing so if they continue down this road.
O`DONNELL: And we have a former inspector general joining us tonight. (AUDIO GAP) a view from someone who`s been there about how to make sense of all of this.
MADDOW: Excellent. Thanks, Lawrence.
O`DONNELL: Thank you, Rachel.
We have so much ground to cover for you tonight in helping us all understand the day`s developments in the whistleblower standoff between Congress and the acting director of national intelligence about the reported now promise that the president allegedly made to a foreign leader. Tonight, we will talk with someone who was inside the closed-door House Intelligence Committee briefing today with the inspector general who is at the heart of this controversy.
We`re also really lucky to be joined tonight by two intelligence community experts who have a lot to teach us. Joel Brenner is the former inspector general at the National Security Agency. He was quoted in the original breaking news report from the "Washington Post" last night. His experience gives him unique perspective on this story.
And Tom Donilon was the President Obama (AUDIO GAP), you have seen Tom Donilon dozens of times in situations with President Obama, including that memorable photograph from the Situation Room during the killing of Osama bin Laden.
And Harvard Law School`s recognized authority on constitutional law, Professor Laurence Tribe, will join us later in this hour, on the day when the president`s lawyers finally said Donald Trump can indeed commit any crime that you can think of and no prosecutor in America can ever do anything about it as long as Donald Trump is president.
The Trump lawyers filed an extraordinary document in court today saying that in effect, President Trump could shoot someone on Fifth Avenue and the Manhattan district attorney could do nothing about it. We`ll get Professor Laurence Tribe`s reaction to that later in the hour.
We begin tonight with the breaking news from "The Washington Post" tonight. There is new breaking news from "The Washington Post" tonight. "The Washington Post" is reporting a whistleblower complaint about President Trump made by an intelligence official centers on Ukraine.
According to two people familiar with the matter, the complaint involved communications with a foreign leader and a promise that Trump made which was so alarming that a U.S. intelligence official who had worked at the White House went to the inspector general of the intelligence community, two former U.S. officials said. The inspector general testified to a closed session of the House Intelligence Committee today. Chairman Adam Schiff of the House Intelligence Committee released two letters from the inspector general to the committee that preceded that meeting today that described what the inspector general has done after he received the whistleblower`s complaint.
Inspector General Michael Atkinson told the intelligence committee in his first letter on the matter: During that 14-day time period, the inspector general conducted a preliminary review of the disclosure. As a result of that preliminary review, I determined that the complainant`s disclosure met the definition of urgent concern, i.e., a serious or flagrant problem, abuse, violation of the law or executive order or deficiency relating to the funding, administration or operation of an intelligence activity within the responsibility and authority of the director of national intelligence involving classified information.
The inspector general explained that the acting director of national intelligence decided not to follow the law`s requirement, that he immediately send the inspector general`s report of the whistleblower`s complaint directly to the House Intelligence Committee`s -- the House and Senate Intelligence Committees within seven days.
The inspector general wrote: Although I believe and appreciate that the acting DNI is acting in good faith, the acting DNI`s treatment of the complainant`s allegations` alleged urgent concern does not appear to be consistent with past practice. The inspector general noted that whistleblower complaints we routinely passed along to the intelligence committees, including whistleblower complaints that the inspector general thought did not meet the definition of urgent concern and were not credible. Even though the director of national intelligence was under no obligation to transmit complaints that did not meet the definition of urgent concern or were not credible, even those complaints were routinely forwarded to the intelligence committees.
The inspector general added: Past practice permitted complainants in the intelligence community to contact the congressional intelligence committees directly in an authorized and protected manner as intended by the urgent concern statue. I am continuing my efforts to obtain direction from the acting DNI regarding how the complainant may bring the complainant`s concerns to the congressional intelligence committees in an authorized and protected manner and in accordance with appropriate security practices.
But a week later, the inspector general wrote to the committee again, this time saying, although I had hoped that the acting DNI would provide direction through me on how the complainant can contact the congressional intelligence committees directly in accordance with appropriate practices, I have now determined that the acting DNI and I are at an impasse over this issue, which necessitates this notification and report on our unresolved differences.
In that letter, the inspector general said, the subject matter involved in the complainant`s disclosure not only falls within the DNI`s jurisdiction but relates to one of the most significant and important of the DNI`s responsibilities to the American people. In addition, it appears to me that the acting DNI has no present intention of providing direction to the complainant through me on how the complainant can contact the congressional intelligence committees directly in accordance with appropriate security practices.
Leading off our discussion tonight is Democratic Congressman Raja Krishnamoorthi from Illinois. He`s a member of the House Intelligence Committee and the House Oversight Committee. Today, he attended the house intelligence committee briefing with Michael Atkinson, the intelligence community inspector general.
Also joining our discussion, Ned Price, a former CIA analyst and former senior director and spokesperson for the National Security Council in the Obama administration. Ned was invaluable to our discussion in breaking news coverage of this last night.
Evelyn Farkas is with us. She`s a former deputy assistant secretary of defense. She is also an MSNBC national security contributor.
Congressman, let me start with you and what happened in the room that everyone wanted to be in today. What can you tell us about what you learned from the inspector general in the Intelligence Committee today?
REP. RAJA KRISHNAMOORTHI (D-IL): Thanks for having me on.
This is a very serious matter. I have not attended a hearing or briefing quite like this one. I`ll just set the scene.
You have an inspector general who was appointed by the Trump administration who came forward of his own volition to the Intelligence Committee to give us a heads-up that basically a complaint was being withheld from us despite the fact that he believes that it should have been forwarded to us through the Office of the Director of National Intelligence. And he also further related, and this is also in his correspondence, that it was both credible and urgent.
And this is something that you don`t -- this is unprecedented, a credible and urgent complaint being withheld from Congress. The purpose of the whistleblower statutes was precisely to have these types of complaints brought to the Congress or to the American people to help expose that wrongdoing and obviously to remedy and prevent it from happening again.
O`DONNELL: In his first letter to your committee, which is now almost two weeks old, he said he believed that Joseph Maguire, the Trump-appointed acting director of national intelligence who succeeded Dan Coats, was acting in good faith. That`s what he said then.
Was that his assessment today?
KRISHNAMOORTHI: We didn`t get into that. And I don`t think he was necessarily asked that question. But clearly he disagrees with Acting Director Maguire with regard to the analysis of how the law that you ably described applies in this particular case. What we know is that Acting Director Maguire raised at least two objections with regard to the analysis that the inspector general had applied.
One, that he thinks that somehow there`s a privilege which would stand in the way of basically turning over this particular complaint to the intelligence committee. I think that`s hogwash. There`s no such privilege that would stand in the way. And certainly, there`s no privilege that would shield information about wrongdoing from Congress.
The second major objection that we learned about that the acting director raised is that somehow the fact that the person complained about is outside of the intelligence community somehow means that the statute does not apply, the whistleblower statute does not apply in this case. Again, that is completely wrong. The statute applies to any intelligence activity covered by the operations of the director of national intelligence.
And so, it doesn`t matter where that person actually lies, whether it`s inside or outside the intelligence community.
O`DONNELL: Ned Price, I just want to give you a wide open opportunity here because you just kept throwing things at us last night that I hadn`t even thought of in my questioning. So I`m just going to give you the floor. Where do you see this on day two?
NED PRICE: Well, I think what we`ve learned tonight, Lawrence, is that it has something to do with Ukraine. We don`t know what precisely. We don`t know what this promise may have been.
But I think, Lawrence, it raises the prospect even more so that what we`re really talking about is a quid pro quo. And now, of course quid pro quos are part of statecraft. They are part of diplomacy. It`s what presidents do all the time.
President Obama sent 4,000 troops to West Africa to fight the Ebola virus in return for a coalition of countries joining us to counter a collective threat.
But in normal quid pro quos the actor in both the quid and the quo is the nation. We give and we get. I think what we`ve learned of this matter over the past week and certainly over the past 24 hours raises the possibility that President Trump floated a quid pro quo where once again the quid is something the United States could pledge, something we could offer, perhaps it may have been the release of $250 million in aid that the administration was withholding from the country of Ukraine.
But the quo in this case may well have been something for President Trump himself, not something for us, not something that served our national interest, but something that served President Trump`s political interest perhaps. And time and again, this has really been the heart of every Trump scandal, where his personal, financial or political interests don`t align with our national interests. And every single time it seems Trump has gone with the latter, his own interests over ours.
O`DONNELL: Evelyn Farkas, you have experience with issues involving the Ukraine. Were you surprised tonight to see the word "Ukraine" in the "Washington Post" headline?
EVELYN FARKAS, FORMER DEPUTY ASSISTANT SECRETARY OF DEFENSE: No, Lawrence, I wasn`t surprised at all. I mean, the president seems to be, as Ned pointed out, you know, looking out for himself and his interest with Ukraine, unfortunately has focused on trying to come up with some dirt on President Biden, which really by the way doesn`t exist.
But I think the bigger problem here, I mean, really, we have to pull back, and as the congressman pointed out, this is about a tension between the executive branch and Congress, between the White House and Congress. And, you know, we put laws into place. Congress put laws into place in the `70s in reaction to abuses by the CIA. They conducted all kinds of attempted assassinations in the `50s and `60s. You know your history. You were in the Senate.
And as a result basically what Congress said was okay, CIA, you can do some dirty things overseas, but every time you want to do a dirty thing, you have to let us know and you have to have a whistleblower kind of a conduit directly to Congress that if you`re not letting us know or if there`s some problem, that people inside who are concerned who have really good evidence and reasonable cause to be afraid about harm to American national security can report directly to Congress.
And so, my beef with all of this is, we don`t know yet exactly what`s at the heart of the whistleblowing complaint but my concern is that Congress is not getting the information that it deserves. And you know, the acting DNI, I know him well from his time as a Special Operations SEAL, you know, he is probably trying to make the president happy. But it`s not the right approach.
Congress deserves to know whatever it is that`s in there. And if the inspector general thinks that it`s important enough to send over to Congress, then it should be sent over to congress. Again, it runs into the whole -- the whole tension right now that`s going on between Congress and the White House about the right of Congress to have information that the White House doesn`t want Congress to have.
O`DONNELL: Evelyn, let me just take you back to Joseph Maguire, because he`s the mystery man at the center of all this and most people don`t know anything about him and he has not been very prominent. You do know him.
Are you surprised by his conduct so far?
FARKAS: I mean, yes and no. You know, the man is obviously a long-time military officer. So his impulse I think would be to try to do what the White House is asking him to do. But, you know, SEALs are known to be courageous, generally. -
O`DONNELL: Can I just stop you there? Can I just stop you there?
O`DONNELL: Nowhere, nowhere, in the law does it say consult the White House. Why would a long-time military officer think beyond the sentences of the law that are right in front of him? What is -- what is the military tradition there that he would be following?
FARKAS: Well, I don`t -- yes, so, I don`t know whether somebody else told someone else in the White House. So, what we know is this intelligence officer, the whistleblower, probably was at one point on the White House staff, which would also explain why they would be privy to phone conversations because the conversations that the president has with heads of state, those transcripts are kept very close circle -- so, cabinet members and people assisting the cabinet members.
When I was in the Pentagon, I would see the transcripts of phone calls with President Putin, for example, or the Ukrainian president. But it was a very close circle. You know, and I was pretty senior in the Pentagon at the time.
So an intelligence official working in the White House, that person would also have access to that. I don`t -- I mean, obviously, somebody stepped in and told Joe Maguire not to send this information over, the acting DNI. I think there`s nothing in his military training that should tell him to do that. He should seek counsel and it`s clear that his counsel would have told him, or at least the inspector general would have told him to send that over to Congress.
So I think he made a misstep and frankly speaking, he`s acting. So if he wants to get confirmed by Congress, this is not the right approach politically even for him.
O`DONNELL: Well, with the Republican Senate, it could be the only approach at this point. We don`t know.
Congressman Krishnamoorthi, what did you hear today in the briefing about Ukraine?
KRISHNAMOORTHI: I can`t comment on that specific allegation, or that issue because we don`t know the substance of the complaint. And so -- but I want to point out one thing. The purpose of the whistleblower statute was also to allow the whistleblower to bring a complaint in the right way through the right process so that we could act upon it in Congress in the appropriate manner.
But if we don`t act upon it and this information doesn`t get to us in the appropriate manner, I fear there will be leaks and these leaks are already starting. And that`s in part why we`ve learned there`s speculation about what`s in those -- in the complaint. And there might be some leaks of classified information. We should do the right thing, and this should go through the normal process and come to us.
Finally, the fact that the DNI would assert that the whistleblower statute does not apply in this case has one other consequence, which is the attendant or accompanying protections associated with that statute, the Trump administration is hinting to the whistleblower don`t apply either. And so this person, whoever he or she is, is in jeopardy. And so, that is something that will discourage other whistleblowers from coming forward as well.
And that I think is a bigger -- as big a concern to me as anything else at this point.
O`DONNELL: Congressman Raja Krishnamoorthi, Ned Price, Evelyn Farkas, thank you all for joining us tonight.
KRISHNAMOORTHI: Thank you.
O`DONNELL: Coming up next, we`ll be joined by a former inspector general of the National Security Agency. Joel Brenner`s experience will give us unique insight into the inspector general`s fight right now to protect the whistleblower and the law. Joel Brenner joins us next.
(BEGIN VIDEO CLIP)
REP. ADAM SCHIFF (D-CA): I want to say to the whistleblower if the whistleblower`s watching you tonight that we are grateful for their courage in coming forward. We are going to do everything we can to make sure this urgent issue is addressed and that you are protected.
(END VIDEO CLIP)
O`DONNELL: That was House Intelligence Committee Chairman Adam Schiff in the last hour on MSNBC with Rachel.
Joining us now is Joel Brenner, the former inspector general of the National Security Agency under President George W. Bush from 2002 to 2006. Joel Brenner was also the head of U.S. counterintelligence in the office of the Director of National Intelligence from 2006 to 2009.
Thank you very much for joining us tonight, Mr. Brenner. We really appreciate it.
You`ve been there. You`ve been an inspector general --
JOEL BRENNER, FORMER NSA INSPECTOR GENERAL: Thank you. I`m glad to be here.
O`DONNELL: Thank you. Just give us your reading on this situation as we know it at this hour.
BRENNER: We`ve got a statute here that`s pretty clear on its face. You have a complaint that`s come in. It does appear to be urgent.
And by the way, the decision as to whether this is a matter of urgent concern that should be reported to the Congress is not a matter that under the statute is for the Justice Department, not for the president, and not for the director or acting director. It`s a matter that`s been left to the discretion of the I.G. himself, Mr. Atkinson.
And Mr. Atkinson has treated this thing in the proper way and passed it within a seven-day period to the acting director, who`s sitting on it.
Now, this is on its face a clear violation of the statute. So what could Mr. Maguire be saying as to why he isn`t doing this? Or what could the Justice Department be saying to him?
You know, it`s either they say two things. One is this is none of the I.G.`s business. And that`s silly. And I`ll tell you why, Lawrence.
The statute gives the I.G. two different responsibilities. One is the responsibility to investigate certain things within the intelligence community. The other is to report certain things that come to his attention, whether he investigated them or not. That`s what this is about.
So, when the White House or the Justice Department says that the I.G. has no business investigating this matter, it`s beyond his remit, that`s irrelevant. This is a matter that pertains to the operations and administration of the intelligence community, and that`s why he`s gone forth in doing this.
And then there`s the privilege issue, if you`d like me to talk about that as well. Apparently, justice is saying there`s an executive privilege here. And the executive privilege would not stand up in light of either a criminal matter either a normal criminal matter or a high crime and misdemeanor if that were involved.
And I think, Lawrence, that`s why the president has just now taken this outlandish position that not only can a sitting president not been indicted but he can`t even be investigated. Because if he can`t be investigated, nobody could raise the -- could try to breach his privilege with an allegation that this is a matter of criminal behavior. So, we`re really in some very deep constitutional water here in my opinion.
O`DONNELL: So you don`t find it coincidental that today is the day when the president`s lawyers in Manhattan, as we`re going to discuss with Professor Laurence Tribe in a moment, actually filed a lawsuit saying the president cannot -- is not subject to criminal process, which is something Richard Nixon would have liked to know when he was complying with criminal process in a subpoena.
But -- and the fact of the action that we`re now seeing from the acting director of national intelligence, that he is behaving it seems as if the president cannot be investigated.
BRENNER: Yes. Let`s make a distinction, Lawrence, between an I.G. investigation and the president`s being subjected to criminal process. I think the issue as to whether he can be subjected to criminal process would be very difficult if he can`t be indicted. I`m going to let my former teacher Larry Tribe talk about that one.
But that has nothing to do with whether the inspector general or the Congress could investigate criminal behavior. And if there is criminal behavior here and if the privilege is being asserted to shield criminal behavior, I think the privilege falls apart. No coincidence here.
O`DONNELL: Let me go to a line in the law here governing the inspector general`s work and the DNI`s work on this. And this is the sentence that I think the intelligence committee is probably worried about now, because Adam Schiff has made some public comments about the possibility of suing to obtain this. But the law says an action taken by the director or the inspector general under this paragraph shall not be subject to judicial review, which means you cannot bring a lawsuit to sue the director based on any decision he makes under this law.
BRENNER: Well, I think that statute is saying that the I.G.`s decision cannot be subject to judicial review, which means I think the I.G. can`t be -- his discretion can`t be challenged. If the I.G. says it`s a matter of urgent concern, it should be reported, I don`t think somebody can go to court and challenge that. I think that`s different than whether somebody could go to court and challenge the behavior of the acting director, who seems to have forgotten that his oath is to the Constitution, not to the president.
You know, one sees this in former military officers who forget that they`re no longer in a chain of command with a commander in chief at the top. They`re in the civilian government now. It`s quite a different thing.
O`DONNELL: Talk about -- just take a second for that. Is that a phenomenon that you`ve observed that -- because Joseph Maguire spent about 36 years I think in the Navy. And people with long careers in the military are more accustomed to a notion of chain of command starting in the Oval Office.
BRENNER: Yes. I have observed that. I think -- look, the military has a great tradition of subordination to civil authority and to a chain of command. And when they get a command, whether they like it or not, they snap and salute. That`s good. We value that.
Once they`re in the civilian government, they still have obligations to follow rules and follow directives from above, but he certainly didn`t have an obligation if this is what he did to ask for advice from the Justice Department or the White House. Nor did he have an obligation I think to follow that advice. He needs to remember who he works for. And his oath is to the Constitution, not to the president.
O`DONNELL: Former NSA Inspector General Joel Brenner, thank you very much for your invaluable perspective on this tonight, we really needed your input, thank you.
BRENNER: Thanks for having me.
O`DONNELL: And when we come back, Tom Donilon, the former National Security Advisor to President Obama will join us next.
(BEGIN VIDEO CLIP)
REP. ADAM SCHIFF (D-CA): This doesn`t involve some policy disagreement. This involves an allegation of serious wrongdoing, a something that the Inspector General felt needed to be presented to Congress was squarely within the jurisdiction of the Director of National Intelligence. And it is unprecedented for a Director to withhold that information from Congress.
(END VIDEO CLIP)
O`DONNELL: Joining the discussion now is Tom Donilon the former National Security Advisor to President Obama from 2010 to 2013. He has advised three U.S. Presidents on national security, foreign relations and cybersecurity issues.
Tom, I just want to give you a wide-open field here and your reaction to what is now two days of this story and where it stands tonight with the latest information that it appears that the information that is involved in this is the President and something involving Ukraine and some kind of promise.
Those are the key words that we know so far. We`re not sure exactly how to connect them.
TOM DONILON, FORMER NATIONAL SECURITY ADVISOR TO PRESIDENT OBAMA: Right. Yes, Lawrence, it`s nice to see you. I`d say three things. One is that it is an unprecedented situation.
I don`t know of an example and I haven`t heard anybody give an example of where a credible and urgent whistleblower complaint hasn`t been shared with the Congress, and indeed the practice is even to share complaints generally with the Congress.
If you`re involved in the Executive Branch and the intelligence world, you understand you have an obligation, a statutory obligation, to share significant intelligence matters with the elected Congress.
Now, we don`t know with respect to the details of the Ukraine story that broke in the papers - the papers tonight. If it`s true, of course it would be an extraordinary story and it was certainly be worthy of serious investigation by the Congress, if not others, point one.
Point two is, I think Joel Brennan did a good job of laying out the situation. We have here a situation where the whistleblower has followed the statute and the regulations to a T. He or she didn`t leak this information, they didn`t go inappropriately to the Congress. Therefore he or she should be absolutely protected under the statute here.
Second, we had the appropriate official under the statute make a determination. That official by the way is a Trump appointee, as the Inspector General of the intelligence community, made a determination under the statute that it was an urgent and credible matter, and should go to the Congress through the DNI.
The DNI is obligated to do that and he can make comments by the way with respect to the - with the allegation. But he`s obligated to send it on. And indeed, we heard today in the extraordinary letter that was released by Congressman Schiff that the Inspector General also concluded that the matter at issue here was squarely in the ambit of responsibility, indeed one of the core responsibilities he said that the DNI has to the American people.
So it`s an extraordinary situation. I think it is important to point out though that the players here have been following the statute and regulations appropriately to the T.
The third thing I wanted to say is this, and we haven`t really talked about this and it`s kind of a - I`d like to step back a little bit, what I`m really worried about here, it`s a broader concern. This is also very important right, we have to get to the bottom of what the - of what the complaint was here, and the whistleblower needs to be absolutely protected.
But the broader concern I have is this, this is incredibly distracting from the intelligence committee and the people who protect our country. I have two kind of sub concerns here. One is that we have extraordinary instability at the top of some of our key national security agencies.
We`ve had the - the Department of Homeland Security has been virtually been decapitated as an Acting Director there, and I think there are probably half a dozen or more acting people in the senior roles there.
We have an Acting Director of National Intelligence. The President let go of the Director and the Deputy Director. We have a new National Security Advisor, the fourth National Security Advisor. We`ve had a breakdown in process, and we have incredible distraction.
When you have senior people having to deal with things like they`ve been dealing with this week, which takes all their time, they`re not engaged in the focused work of protecting the country.
And I can tell you, over the course now of 18 years since 9/11, it is not an accident that this country has been better protected. It`s not an accident that the professionals have the focus, the processes in place that have protected this country.
So this instability at the top, Lawrence, and I think you`d agree the great distraction created here in all this chaos I think is really dangerous for the country.
O`DONNELL: Yes, I want to go to the possibility of the ways this might come out. And it seems like if the Director wants to just continue to block this, it doesn`t look like the law provides a way around that. It says that any action taken by the Director or the Inspector General is not subject to judicial review, so I don`t really see around - the way around that.
But they should all know that the polls are indicating as of tonight that there will be a new President 16 months from now. And 16 months from now, there will be a new Director of National Intelligence and this will be released at that time. This document is still going to be there. It will eventually in the next Presidency at the very latest all become available to the Congress.
DONILON: Yes, I think you have to assume at some point that this information will be made available to the Congress. Now, I have not heard - early as Joel Brennan was saying, I`ve not heard the administration make and express privilege claim. If they have a privilege claim to make, they should make it and it should be confronted with the Congress, and typically you try to work with some sort of accommodation.
There`s lot of discussion about this statute over the course of the last - over the last 20 years, and the thrust of kind of learning has been that, when there is a dispute over the release of classified information, there would be an accommodation, that it would be worked out.
Of course here, we have the extraordinary situation that if the press reports are true, it involves the President of the United States and his conduct, which makes it much more difficult circumstance.
Lawrence, as you know, the founders have set up the system of separation of powers, of checks and balances, they have authorities and interest on both sides. The President has an interest in conducting foreign affairs and protecting deliberative materials.
The Congress has an interest in oversight, which by the way the administration`s taken extraordinary position, which is to reject all oversight. And that typically has to be balanced and we rely in this country on the good, the judgment, and the character of the players on both sides.
O`DONNELL: Tom Donilon, cannot thank you enough for joining us tonight. You have been there, you know the weight of these issues, and having your input was invaluable. Really appreciate it.
DONILON: Thank you, Lawrence, nice to see you.
O`DONNELL: Thank you. And when we come back, Donald Trump`s lawyers now say that he absolutely could shoot someone on Fifth Avenue, and if he does, the Manhattan District Attorney cannot do a thing about it.
Harvard Law Professor Laurence Tribe has something to say about that, and he`ll join our discussion.
(BEGIN VIDEO CLIP)
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn`t lose any voters, okay, it`s like incredible.
(END VIDEO CLIP)
O`DONNELL: And now he has gone beyond that. Now, the President is saying I could stand in the middle of Fifth Avenue and shoot someone and I cannot be prosecuted for that crime or any crime.
In New York City today, the President`s lawyers sued Manhattan District Attorney Cyrus Vance, and in filing the lawsuit, the President`s lawyers told the court the President thus cannot be subject to criminal process for any conduct of any kind, while he is serving as President.
So according to President`s lawyers, Donald Trump could commit murder, he could commit murder on Fifth Avenue with the whole world watching on TV, and there is nothing law enforcement could do about that, as long as Donald Trump is President.
The President`s lawyers are suing the Manhattan District Attorney to try to block the District Attorney`s subpoena of President Trump`s personal tax returns and business tax returns. That subpoena was not served on Donald Trump, it was served on the accounting firm Mazars, which prepared those tax returns and has copies of them.
The Manhattan District Attorney is conducting an investigation into potential criminal wrongdoing by Donald Trump and his company in the hush money payments to Stormy Daniels in the last month of the Presidential campaign, which federal prosecutors in New York called a criminal conspiracy against the United States, which was designed to affect the election.
The President`s lawyers don`t point to a single line in the Constitution to support their position, because there is no line in the Constitution that says the President is not subject to criminal process. In fact, the Supreme Court ruled that President Richard Nixon was subject to criminal process, when they voted unanimously to enforce a criminal subpoena issued by a special prosecutor, who was conducting a criminal investigation of President Nixon.
President Nixon then complied with the subpoena and handed over audio tapes that showed the President engaged in a criminal conspiracy, and shortly after handing over those tapes, Richard Nixon was forced to resign the Presidency.
Richard Nixon resigned the Presidency because he was subject to criminal process and that criminal process closed in on him and forced him to turn over the evidence that condemned him.
This is one of those nights when we hope to turn to a constitutional scholar of the highest authority and we can do that tonight, because Harvard Law School`s Constitutional Law Professor Laurence Tribe, who has argued countless cases before the Supreme Court, has agreed to join our discussion.
Professor Tribe has taught constitutional law to students such as Barack Obama, Ted Cruz, Elena Kagan, and Chief Justice John Roberts. And as we just heard, former Inspector General Joel Brenner and now, it`s your turn to take a constitutional law class with Professor Tribe.
Joining us now is Laurence Tribe, Harvard Law School Professor of Constitutional Law. He is the co-author of To End a Presidency: The Power of Impeachment. Professor Tribe, I give you the lecture hall for, can the President shoot someone on Fifth Avenue and the Manhattan District Attorney simply has to look the other way?
LAURENCE TRIBE, HARVARD LAW SCHOOL PROFESSOR OF CONSTITUTIONAL LAW: The answer is no. We don`t have a Constitution, thank goodness, in which the President is that much above the law. But in fact, the position that his lawyers were taking today in the Federal Court filing is even more extreme than that.
They have taken the position that the President`s company cannot be investigated, that those who may have conspired with him to commit financial and other crimes cannot be investigated, that the whole state proceeding must be stopped in its tracks.
Among other things, there is a federal law going all the way back to the founding actually to 1793, it`s called the Anti-Injunction Act, and it says that no federal court can interfere with an ongoing state proceeding. So when the judge finally has to rule on this outlandish claim, that you cannot investigate criminality on the part of the President, his company, and his cronies, the judge will have the obligation under the Anti- Injunction Act 28 USC 2283 to dismiss the case, because it is not permissible for a Federal Court.
It`s a principle basically of state`s rights, believe it or not, it`s not permissible for a Federal Court to mess around with an ongoing state criminal proceeding, simple as that. And so, what`s--
O`DONNELL: Professor, if that lawsuit - would it be different if that lawsuit had been filed in New York State Court?
TRIBE: Well, that would then be making an equally absurd argument, but at least they would be in the right forum. They`re trying to say that state courts have to be kicked out of the picture, because after all the President is a federal official. That doesn`t immunize him from state process, it doesn`t immunize him from state proceedings.
There are only very limited exceptions to this Anti-Injunction Act. The only one that could conceivably be relevant would be the Civil Rights Laws. The Civil Rights Laws, if the President said this lawsuit that`s being brought against me by Cy Vance violates my First Amendment rights or my religious freedom.
Of course, it doesn`t. He made that argument there`d be a kind of window that he could try to climb through. But in a case I argued and won in the Supreme Court called Pennzoil v. Texaco in 1987, the US Supreme Court said on behalf of one company that had lost a big judgment in a state court that it couldn`t run off to federal court to kind of interrupt the state proceeding.
The only way to get federal review of a state judgment is to let the state proceeding run its course and then take their chances with asking the US Supreme Court to review the result. But the most important point, even more important than the fact that they`ve gone the wrong court in order to try to hoodwink the judicial system, most important point is that they have taken this outlandish position that says the President and all those around him are above the law, they can`t be investigated for any crime no matter how serious until the President is out of office.
Well, he`s basically inviting the country to kick him out of office so that he can be held accountable to the law, and I think that`s very kind of him, but I doubt that that`s his intention. It`s not a coincidence that this happens on the same day that the whistleblower issue arises. Because in that case as you point out, there is an odd provision that doesn`t allow for any judicial review.
O`DONNELL: So we have the President taking the extraordinary position by indirection through the Acting Director of National Intelligence that it can withhold intelligence information of an urgent kind that goes to the security of the nation from the intelligence committees of Congress, even though an act of Congress says that that`s where the whistleblower should go.
And it`s clear that his position now is nobody can do anything to me, they can`t touch me, I have Article 2 on my side, I can do what I want. Congress can`t touch me, they can`t ask questions of anyone who`s ever worked with me or anyone who`s had anything to do with me, the state courts can`t investigate me, the federal government can`t indict me, and Nancy Pelosi doesn`t want to impeach me. So, I`m home free and I can get away with murder.
That can`t be the law in the United States, that`s not why we fought a revolution against a King just in order to get a tyrant. It`s astonishing and hopefully this will finally wake people up and realize this guy has got to go.
O`DONNELL: The President`s lawyers put this in writing in their complaint today, they said state and local prosecutors have massive incentives to criminally investigate the President to advance their careers or to damage a political opponent.
We`ve had apparently 230 years of this massive incentive that has never incentivized a local prosecutor before.
DONILON: Well we have typically selected Presidents who are not criminals. This time, we may have missed the mark and we`ve selected a President who seems to know no bounds. He violates the emoluments clauses, he enriches himself at the expense of American taxpayers, he takes money from foreign governments in order to benefit himself, he bends policy in the direction of those governments, whether it`s Saudi Arabia or another country to enhance his own wealth.
And now, we understand he may have been making some kind of deal with Ukraine perhaps to get information of a negative kind about Joe Biden`s son in exchange for aid to Ukraine. It`s treachery, if not treason, and it`s bribery and it`s unacceptable.
O`DONNELL: Professor Laurence Tribe, thank you very much for joining us tonight.
TRIBE: Thank you.
O`DONNELL: We all feel a little bit smarter now having shared some time with you. Thank you very much professor.
TRIBE: Thank you Lawrence.
O`DONNELL: And when we come back, we have important very, very, very good news tonight. This is going to be a really good, good news episode tonight, about Isabel Bueso.
(BEGIN VIDEO CLIP)
MARIA ISABEL BUESO, GUATEMALA IMMIGRANT: I`m asking Congress and administration to come together and right the wrong of this change in policy. This is not a partisan issue, this is a humanitarian issue, and our lives depend on it.
(END VIDEO CLIP)
O`DONNELL: We have very good news to report tonight. Maria Isabel Bueso is going to live. She`s not going to be sentenced to death by deportation, which is what the Trump administration was planning to do to Isabel and hundreds of other critically ill patients who are in this country for live- saving medical treatment.
Democratic Congressman Mark DeSaulnier, who fought for Isabel Bueso`s life because she lives in his Congressional district said in a statement tonight, "In a major victory, the Trump administration will apparently reverse course and resume the Deferred Action program, allowing hundreds of deserving immigrants like Isabel Bueso to stay in the United States to receive lifesaving medical care, and we`ll continue to press the administration for answers and assurances that this program is safe from future targeting and pursue our private bill to keep Isabel and her family in the United States permanently, but in the meantime we breathe a sigh of relief."
The Department of Homeland Security said that it is resuming its consideration of requests to stay in the country for life-saving medical treatment "on a discretionary case by case basis." And so, we`ll have to continue to cover the decisions that the Trump administration is making on a case by case basis about deporting people with life threatening conditions.
Tonight, Isabel Bueso issued this statement. While we have not received any official confirmation that our Deferred Action case will be approved, we`re cautiously optimistic about this news. I`m so grateful to all the leaders who spoke with me last week in DC and played a role to helping to reinstate the Deferred Action program. We now wait to see whether our case will be approved as well as confirmation-