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tv   Freedom Forum Institute Discussion on Role of Special Counsels  CSPAN  December 15, 2018 2:01pm-3:35pm EST

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[indiscernible [captions copyright national cable satellite corp. 2018] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] >> next, ken starr, former independent counsel in the whitewater influence the investigation -- and monica lewinsky investigations hosts a discussion. our coverage is coming live from the museum in washington, d.c. [applause] ♪
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[inaudible] ♪ >> i always think of the museum as the home of freedom. >> i don't know where this
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nation would be, i don't know where i would be today without the guarantee of the first amendment. there is a war against information, there is a battle over who controls information. >> what democracy should do is talk about it. news, be an the citizen of the world, give a damn. ♪ >> we must come to see with one of our distinguished jurists that justice to long-delayed is justice denied. religion and our beliefs are part of people's core identities. >> it is very interesting to feel that you are protected by the freedom toe pursue your life freely. [inaudible] ♪
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>> well, good afternoon, and welcomed to the museum -- the video is so good we will show it twice. i am the chief operating officer of the freedom forum institute. we are pleased to welcome those of you here in the studio and those of you watching on the livestream and those of you orching on c-span 1 listening on c-span radio, as i understand it. my job is to welcome you and give you a touch of history to bring us up to speed with the contemporary issues we will talk wanted to i acknowledge that it is bill of rights day, a day we have been celebrating since 1941. no for those of you who have large galas this evening, we
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will try to get you out in time. it started december 15, 1941, and franklin and eleanor roosevelt were to go to new york for a large tickertape parade, but the attack on pearl harbor occurred on december 7, and it was a small ceremony at the mayor's office eleanor roosevelt only, but it has carried on as a national holiday and we have an affection for it in the building. more to the point, we are here today to talk about independent counsels, special counsel's, or to use more combative terms, special prosecutors. since 1875, special counsel that special offices -- and special offices have been used for a chance to examine the conduct of government officials, from postal clerks presidents. roughly 30 individuals, i believe, have held that title, with outcomes of zero convictions to 220 plus, and a range of impact from negligible to impeachment.
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along the way, the authority has rested in various places -- the justice department, the president's office, and with the 1968 ethics in government act, to expires allowed after a few renewals -- the act, not the ethics. my very career, i was interested in sports, so i use sports analogies. first at the plate was john henderson, named in 1875 by ulysses grant to investigate what was known as the whiskey rings scandal. bribery, corruption, and at one point a member of the president's inner circle, babcock, helle and henderson --,
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inrged 290, and next up 1881, prosecutor william cook investigating what was called the star judge scandal, which had to do with postal authorities accused of accepting bribes. we did a recent program and a scholar and benjamin franklin pointed out that for much of the nation's history, much of the federal government was a post office with an army attached. so you find a lot of scandals having to do with the post office. the teapot dome, looking at the bureau that was then called the bureau of internal revenue, 162 staff fire but no indictments. attorneyan fired general mcgrath, who fired the special assistant looking into this, so there is sort of a moment there. --will go back and forth to
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the watergate resignation in the saturday night massacres, but the topics --k up quickly in the 70's in the 1970's, 1980's, and 1990's. so we come to today's subject, which is various moments and increasingly so, capturing the attention, rightfully so, of the nation. allow me to introduce our panel today. carter'sresident jimmy chief policy advisor, a writer of the book touches on the subject of today's program. in the clinton administration, he was u.s. ambassador to the european union undersecretary of commerce under secretary of state, and special representative of the president on matters retaining the holocaust area issues, and in the obama and trump administration's he continues his work on the holocaust as a special advisor to the state
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department. professor jonathan turley, a nationally recognized legal scholar and analyst who is frequently appearing on various network programs. he has had a distinguished career as a lawyer. he is a professor of public interest law at george washington university. today, the lead counsel on the last impeachment trial in the , and during the clinton impeachment represented the attorneys general and also testified on matters of whether the president could be impeached on issues related to lying, i guess is the only way to put that. the honorable kenneth w starr, who served as the united states circuit judge for the district of columbia circuit, to then u.s. attorney general william s smith, and fifth circuit judge david dwyer.
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the independent counsel for five investigation, including what was popularly known as whitewater from 1994 to 1999, and the author of a recently published book, contempt, a memoir of the clinton investigation. our moderator, who i will aortly turn this over to, is widely known legal expert and television anchor for cnn, fox, formers, a for mor -- a civil defense and critical trial lawyer. and most recently, she conducted a newsworthy interview with president trump at the g20 summit in buenos aires. so welcome. >> thank you. [applause] thanks for coming today or watching via the livestream. it is exciting to be here. video showingthe
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the freedom in the united states as i travel the world and we are so lucky to have freedom of the press here in the united states, and boy what a difference it makes. i like to tip my hat to that part of the constitution. let's talk about special prosecutors in independent counsels, investigations. take me back to 1978 to give us some background on president carter signing this statute, or this bill that became law. >> thank you, greta. one of the reasons we would not go against gerald ford in 1976 was the reaction to watergate. -- presidentnow carter, with he was running, so i will never die to you, a country is as good as its people, and this was not just a slogan. we put in place all the legislation that is here today. for example, to curb cia
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excesses of the foreign intelligence oversight act, judges,lection of inspectors general and each of the agencies to root out fraud and abuse, with service reform and much else. the 1978 ethics act, which greta mentioned, is one of those major provisions in force today. it required for the first time the disclosure when you were going into office by a senior about any you asked potential conflicts of interests and restricted gifts with an office. -- within office. but the provision that brings us here is title vi of that -- , and vi of that 1976 act the reason was the saturday night massacre. -- richard nixon, at a time when the news was starting to tighten on watergate, he asked his attorney
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the specialire prosecutor. he refused. he then asked the deputy, and he refused. he was only the third in command. to fire cox,eed but it was that recollection that led to the creation of the office of special counsel. here is an interesting tidbit, and that is having created this office with great fanfare, the president signed a law almost 40 years ago -- october 26, 19 78 -- the first special counsel appointed is none other than arthur christie, investigate any allegation that his own chief of staff, the president's own chief of staff and campaign genius had sniffed cocaine at studio 54 in new york. the allegation was made by none en, who wasroy coh
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the hatchet man for senator mccarthy and donald j. trump's first political mentor. he went to our attorney general and represented one of the owners of studio 54, which was under tax evasion charges, thinking he could plea bargain by falsely accusing him. so $1 million later of legal fees out of his own pocket with a hairtrigger allegation -- all you needed was a simple allegation, hardly any vetting, so he felt compelled to appoint a special prosecutor. on a 4-0 after 100 interviews and 19 grand jury investigations, but here's the thing that is topical today. intonvestigation carried 1980, into carter's reelection --inst ronald reagan not against ronald reagan, not once did carter interfere with it,
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call it a witch hunt, say it was a political effort. ken, you were subject to some attacks during your tenure, but carter never did. i think that is a great tribute to it. we let it run its course, and a second campaign manager was also accused falsely of drug charges. it had too much of a hairtrigger at the time. a differentlems of sort with the act. our problem was all that you needed was an unsubstantiated allegation and you had to up with this agile counsel and millions of dollars of legal fees later, the result would come out. but the tribute to president heter is not only that recognized we needed some independence after the saturday he let thecre, but program go through its course and the investigation go through its course, even though it touched heavily on to top campaign and political aides at the white house. you raise then:
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ken starr objection, but ken, kelly is it correct that the statute -- tell me, is it correct that the statute is unsound constitutionally and the statute tries to cram a fourth branch of government into our three branch system? i assume that is the correct quote, correct me if it is wrong, but you can speak for yourself, very eloquently. greta, andthank you, eum forou to news gathering is here. another structure of our liberty, the structure of protection. the original constitution was lacking without that. the original constitution wisely set up our power system and federal republic, etc.. we are talking now about these structural protections rooted in the separation of powers. i think we've people, in the words of the preamble of constitution, underestimate the
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importance of that structural arrangement in terms of the protections of liberty. to mr. madison and others, those were foundational, structural, foundational, in a word, to a -- to preserve the liberty bell. i view the noble experiment, i know that was said about prohibition -- and that it will experiment that lasted for 21 years, namely the independent counsel provisions of a very sound and marvelous statute called appropriately the ethics in government act, was ill-conceived. because it created structural tensions that i think were eventually these architectural faults architectural were so profound that the structure was doomed to collapse. it took a while for the republican, and took iran
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contra. for the democrats come it took your humble correspondent here and monica lewinsky. by that point, everyone was fed up by the special counsel provisions. they were originally a special prosecutor provisions. just two things about the elements of the statute -- one, in contrast to president grant determining, or the attorney general in harry truman's case determining there should be an outsider from the opposite political party to the party in power to examine corruption or , theations of corruption special counsel provisions took that power away from the executive in order to ensure independence and placed it in the hands of a three-judge court , or a three-judge panel on the united states court of appeals. us who wereumber of thinking about it at the time,
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especially in the reagan white house, was constitutionally anomalous -- not unheard of for judges to appoint prosecutors, in order to ensure independence we are putting the attorney general on the sidelines in terms of choosing the person, but i saw this person by virtue of janet reno, the attorney general who called for the whitewater investigation at the instance of president clinton. so what was the provenance of whitewater? president william jefferson attorneyirected his general, janet reno, to appoint -- the state with an state of destitution at the time, so she used the grants model, the use of the of the seas s grant's model -- of the ulysses s. grant model, she put her authorities into power and put in place robert fisk, a
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distinguished lawyer of great integrity who had been a prosecutor in new york. he started the investigation and then congress chooses to reauthorize the statute. the attorney general, understandably, goes to the special division, now back in business, and says, the investigation -- i am paraphrasing -- the investigation is already underway. just anoint bob filner, -- just sk, who wasfi already working on this, and let him continue his work. to the shock and chagrin of many people, the special division -- i do not know if it was unanimous or not -- in any way, they said no, we have to appoint someone completely independent of the incumbent administration. while we have great confidence in the integrity and uprightness of robert fisk, he was appointed by the attorney general. analysis,formalistic
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and yours truly is appointed. that system of appointment by the attorney general, the current stem underway -- the current system under which bob mueller was appointed was structurally sound. yes, bad things happened. ulysses s. grant fired the special prosecutor. that is unfortunate, but life goes on. yes, harry truman, after the attorney general fired the special counsel, fire the attorney -- fired the attorney general. it goes with the territory, if an individual is going to be investigating the president of tates, half the nation will think they are a skunk at a lovely garden party. so you are out of control and on a witch hunt. these kinds of things are said from time to time, and then of course, famously, as we heard, cor, anger, and angst in
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respect to the saturday night massacre. the whole system actually did work, and the system is working again with bob mueller, and hopefully we will understand that. the second thing i want to say -- i will be very brief about this -- in contrast to the traditions of the country, just it,life as we experience the famous dictum that the life of the law is not logic, but what has been experienced. dissent to the opinion morrison versus olson, upholding the constitutionality of the special counsel provisions, justice scalia said the statute is accurate with the smell of impeachment -- is acrid with the smell of impeachment. it was great rhetoric, but also quite prophetic. his prophecy was rooted, textual
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as he was,tualist lay in the text of the statute. that was an invitation to file impeachment referral to the house of representatives. misguided profoundly provisions of the special counsel statute. why would they do that? bay, they being congress, because they had just been an impeachment process. their minds ran to impeachment, but with the result of andrew johnson, a long time ago, and much more recently bill clinton, the american people really don't like the impeachment of the president. was not popular, bill clinton was, but all in all, the structural protections of essentially a national consensus embodied in a two thirds majority requirement for
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removal suggested that we don't need that anymore. and happily, the current regulations under which bob mueller was appointed, which ironically were fan should -- were fashioned by janet reno and her very able staff say not one word about impeachment -- rightly so. moreover, the reporting mechanism, everyone was talking about the mueller report and jonathan has spoken very thoughtfully about this -- there is no mueller report other than to the attorney general of the united states. we will see the attorney general of the united states decides to do with whatever that reporting mechanism is. the only reporting to congress mechanism that is on the face of the regulations is to the effect that the attorney general is to inform congress of certain key things. that is not to in any way say that regulations forbid congress, and obviously it will be a judgment call as to what
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will eventually be in the mueller report, whether it will as would bet, appropriate for a department of justice prosecutor because justice department prosecutors are not to issue reports saying, committedary roe crimes, but we chose not to indict her for the following five reasons. that is a terrible departure from ancient traditions of the justice department, that you don't go around besmirching people's reputation as a prosecutor. you indict or you don't, or you seek an indictment from a grand jury or you don't, but you don't go around filing reports. jonathan, where did you stand on this whole part about whether we need them or do not need special prosecutors, whether the justice department can do this or not? office of public integrity at the justice department, and when i was growing up in the business, that
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is how the investigation with public officials were done often, was in the justice department. >> that's a very good question. i do not share ken's thought about the minimalist chances of mueller report. it will probably be as minimalist as war and peace. [laughter] what fascinates me about the times we are living in, many of the original arguments for the independent counsel act seems to --more profound this profound because this is a president that has made so many statements directly and apparently with interest in firing robert mueller. this is a process that has not been ideal. with ken, this is a process that can work. i think it has worked. also difficult.
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i approve the appointment of a special counsel after kobe was comey but -- after was fired, but i do not know how bob mueller is on that list. he just interviewed for comey 's job. it is a little odd. that guy who just interviewed for his job, he is now going to investigate you. i think trump has a reasonable objection to go wow, you can throw a stick at any corner and hit 25 seasoned attorneys, how come i got the one that i interviewed to replace the guy i fired? also seen other problems associated, as we have, with the whitaker controversy about the report, control of the and also the degree of resources. that, i thinkl
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ken is right. it actually works. there is a lot of political pressure and oversight that comes with a multiparty system. greta, whenpoint, the court looked at the morrison case, it was clearly uncomfortable with many issues can had race. there are some serious separation of powers issues here. this is not a normal creature you find within a tripartite system, because it is not housed in one of the branches. how thiszy to ignore creates an anomaly, as kent said. because thehat, special counsel is solidly positioned within the justice department. it does not resolve the questions, though, because there is this issue of the special counsel not being confirmed. the way the argument goes is
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sadly that the special counsel at a minimum is the equivalent of a u.s. attorney. that exercising powers exceed a u.s. attorney, because he does not have any geographic limitations, and virtually has no budget problems to think of. so the argument is, you can't appoint that type of officer under the constitution without a nomination and a con nation -- and a confirmation in the senate. even of years in a better constitutional position than an independent counsel, we have to be left wondering, what exactly is he? is he one of these inferior officers? he does not walk and talk like one. quite to the contrary, he is created not to be an inferior officer. but if that is the case, it destroys the purpose we are talking about. if he really is not an inferior officer, the president would
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have to nominate him and the senate would confirm. we get back to the same question again, where we go back to carter and say, what are we trying to achieve your? -- achieve here? want the perfect to be the enemy of the good. there is a fear if we look at this closely, it might not be sustainable under the constitutional, the doctrines we apply. what we know is that in morrison, the court said the independent counsel act made it over the line, perhaps sputtering and crawling, but it made it over the line. the special counsel is in a stronger position because he is part of the justice department. he is subject to the attorney general or designee. that removes a lot of the concerns we had before.
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but what remains is still sort of nasty, and that is, how do we define him within the justice department, and does the president still have a right to appoint? which defeats the entire exercise we just went through. can i say one point? a slight disagreement with ken -- not prof. turley: let's just focus on ken. mr. eizenstat: we do not want to go back to ulysses s. grant firing the special prosecutor because he was prosecuting his top aide. we do not want to go back to a watergate situation like the saturday night massacre, where the president feels he can order the attorney general to fire the special prosecutor. i do not think any of us are saying that. it is true that scalia objected lity ofconstitutiona the act.
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it was seven to one, one justice recused himself. there is a virtual unanimity on it, but the supreme court said ultimately, the supreme work -- the attorney general still maintains control over the special prosecutor, although he was named in person by the court of appeals. the attorney general has initiated the process. having said that, to me, the most important thing is not being hung up on whether the court of appeals should be involved or not. it is ensuring that when there forward,lation going the independent counsel, the independent counsel is sufficiently insulated from political pressure. by the president, by the attorney general, so that he or she can do their job independently. really what the thesis was of the 1978 act, under
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which, ken starr was appointed and did us a very great job under very difficult circumstances. we do not want to go back to that. and i think under general -- under janet reno, the attorney general, under those regulations, cannot fire the special prosecutor, except for misconduct in office. it is a pretty high standard. as long as that special counsel is insulated from the pressures of being fired and he or she can do their job. we also have to recognize we are in a political system. the attorney general is appointed by the president. bobby kennedy would hardly be independent if jack kennedy was in trouble, and same with truman and so many attorney general's. so with that recognition, it is just critically important that when a special prosecutor or special counsel is named, that person can be insulated
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sufficiently from political pressures to give the american people confidence that that person can do the job that is required to investigate the high if necessary president, vice president, other senior officials. that is what the american people deserve to have and what the act was designed to ensure. one quickey: footnotes -- that was achieved, interestingly enough, the regulations under which we under ski was appointed -- leon dorsey was appointed. this was passed nonetheless by agencies including the department of justice and others bound by their own regulations, until such time as they repealed them. bob work fashion very good legal advisers around him, but this professor of constitutional law as well as and i trust, one of
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the iconic courses at yale collaboratively with a great man had reflected on these things. he thought not just about market share and concentration levels and so forth, but he had thought about our constitution. if we go back and look at the regulations he provided the therney general -- he was actual attorney general at the time -- provided the extra measure of protection for independence. the attorney general bound himself just before he would and leon, that he would go secure the approval, the approbation of both the chair of the two judiciary committees and the ranking minority member. there does not have to be that political consensus that leon jaworski should go. guess who agreed to those
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regulations? this was bob corker asserting somehow authority he did not have -- he cleared it with the white house counsel, as i understand it, that these are the regulations that i will propagate as the attorney to the who reports president of the united states. it was that extra level of achieving that goal of job security and independence. ms. van sustern: i do not know if any of you have any thoughts about the responsibility of the press and his whole business of special prosecutor and coverage, because the country is elected right now, as it was during the clinton days. ands almost like shirts skins or hatfields and mccoys's, whatever is your reference. the free press corps, the american people have a right to know what is going on. on the other hand, there is a rage bonanza with this, and sometime the rage causes people to get on tv -- i heard people a week ago talking about a
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memorandum -- it was one of the ones in the michael cohen testimony, but it was completely blacked out. some people said what they thought was in it, even though clearly nobody knows what is in it except the special counsel. so what is the role in covering the fed keeping the american people informed, but not electrifying them and causing greater division than is warranted? i think this is the best and the worst of times for the media, quite friendly. at the best of times, the media has been the critical check too much of this. been as has not particularly great ally to the constitutional principles here in general. the media really stepped up in a very important way, and forced into the open, many of the issues that we are now looking at and more importantly, mueller is looking at -- the worst time has to do with the tenor of media coverage.
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i think it is very sad. i have worked for cbs, nbc, i write for three newspapers and have for a long time to, and i have never seen anything like this. we saw it coming, the eckert chamber coverage that everyone who does not like president nbc,p, they will look at cs fox, but it is at a deeper level where you have reporters and anchors that seem like open advocates now. the president speaks and you have an anchor on cnn give the counterpoint, and say this is where he is lying and not. it is not that this guiy -- this guy doesn't give you plenty to work with as a journalist, but it is the tenor of, now i will response to the president. what has been lost for the viewers is it feeling like
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anything they can trust. and as a legal analyst, it has an impact for us. legal analysts have lost our bearings. you have legal analysts that also sound like legal advocates. write a lot about what i see on tv, where people have smoking gun interviews -- here is the smoking gun. one person said president trump is likely to be indicted or resign within two weeks, which is remarkably moronic to come up with a specific time period, but all of this gotcha bombshell stuff that has gone on from the beginning. and what is missing is the public forum. said from the beginning i i did not think there was a clear or strong obstruction case to be made for the firing of james comey. that is a fact. just because there is a critical defense attorney, these are specific, defined crimes of obstruction and it is difficult
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to see how those elements could be met in this case. it does not mean they cannot be met. the same thing with the collusion allegation. there are no specific crimes of collusion, but there are ones that could be related to collusion. the public is hearing on one station that this is it, he is clearly going to be indicted, and on another station, this guy is as pure as driven snow, and we are failing the public. i say that primarily about legal analysis. i think we will look back on ais period with sort of hangover of my god, what just happened? quite frankly, we are going to have to look at how honest we were in the media. trump might be right. i think it is hilarious that the two industries that trump hates the most, media and the law, he has transformed those industries. he has brought media act into the black, law school applications are through the roof. [laughter]
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fact is they the need each other. i wrote a column recently -- i will get off my soap rocks, but the same way zuckerberg on cnn was asked -- the same way zu cker on cnn was asked why they always cover trump, he said you don't covere we trump in our ratings go down. also -- we had a slight moment of honesty that they need each other. this is one big scam, that each is attacking each other as they are both benefiting from that, but the public is not benefiting because they are getting less information. mr. eizenstat: let me take a crack at the question. lost a really wonderful former one term president, george h.w. bush, and 1, 94,
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jimmy carter, who i wrote about in my book. the center of their party and reached out to the opposition. some of our major achievements in energy, the panama canal and such were done with the republicans. george h.w. bush, the budget on the environment and so forth. the real question is now, has the proliferation of social media and cable news caused the polarization we are seeing? it is so different than what carter and bush had, or is it simply a reflection of what exists already? that is a difficult question to and there is no easy answer, but it stirs it up and accelerates the polarization that is already occurring. when i was growing up, many of you perhaps -- the news came from walter cronkite and others,
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and you basically accepted it as it was. now, the news is being so politicized that i think it really refracts the polarization and accentuates it. that is not good for a democracy that relies on compromise, ultimately. we really cannot achieve the goals we want to compared to the new autocratic regimes like china, russia, and less our democracy functions. for it to function, there have to be a willingness to compromise across party lines and not point fingers at each other. is a veryhink this profound question that goes beyond just a special counsel, and is something that i think all of us should really reflect on. mr. starr: let me associate myself with the lamentation that i think most, if not all of us feel. of herto author a couple roz and huzzahs based on my
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experience. greta, you lived through this daily. shop, the independent counsel's office, not so terribly long ago, but 20 years ago, 20 years plus now, we really divided the media world into two camps. truth seekers and everybody else. it was not that the non-truth seeking members of that camp were denying the truth or whatever, they were just not seemingly aggressively interested in seeking the truth. let's lay out the facts. i will give very quick examples -- jeff girth of the new york times, one of the peoples that surprised in a investigative reporting was the first one to break the whitewater story. he has said that the
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whitewater transaction involving the clintons was filled with broad, and it was. his understudy at the new york times, at the washington post, sue schmidt, a truth seeker. abc news i would single out as being filled with producers who were aggressively seeking the truth. nbc's on camera person, lisa myers, always after the truth. and i do not mean by the these heroes, as i see it, and the world of truth seeking, to say they are the only ones. i use those examples to show that the so-called mainstream media had very distinguished truth seeking people. so when the clinton white house chmidtying to get sue s and the washington post fired,
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they said in their many fine hours, no, we will not fire her, so go away. no white house likes to be criticized, but then there is the other side -- this is my y final comment on this. news as entertainment. i love larry king. i have been on his program several times. he is a good guy and he is still around. watch a dodgers game, and you will see him right there. the longest world series game in the history of the planet, and there was larry king. he stayed until the very, very end. when he interviewed citizen convictedt the time, of serious felonies in connection with her fraud committed against we the people in her stewardship, along with her former spouse of madison theanty savings and loan, softballs from larry king just came cascading out and susan was
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engaged in her recriminations and her jeremiah, oh, i am just the poor joan of arc, just being persecuted by this evil person. so that was the narrative. larry to do aor little bit of cross-examination. but wait, weren't you convicted by a little rock jury after a three-month trial with serious felonies beyond a reasonable doubt? not a word. does anyone remember the name conrad black, a canadian who ended up having his own issues. at the time, he was the owner -- i think it is the daily telegraph in the u k. so we are at this gathering in london, and i find myself sitting next to conrad black. long before he came into any legal peril.
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he said you know, how is it going, that sort of thing. me tell you about larry king. i went into my histrionics about how larry king failed to do his job as a kernel is that as a conrad -- hend said ken, larry king is doing exactly what he is supposed to be doing. askings not, he is not the basic questions, look at the check you wrote to yourself to pay your tennis club dues -- he said no, ken, you don't get it. larry king is keeping up his ratings. that is his only job. it depends upon who we are talking about, right? jonathan, a lot of what we see in the cable news is responsive forces. people want to be able to watch cnn and get really angry at the
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president. people want to watch fox and get really angry at those who are angry at the president. they want to be angry at nancy pelosi. welcome to democracy -- it is not very elevated, it is very is -- what it sure shall i say -- consistent with our first amendment values. ms. van sustern: let me switch gears, and i will give you the opportunity to ask questions. s at bothicrophone sides of the room. this is nothing to do with the current investigation, but a question i would like to learn any sittingo -- can president be indicted? i know the department of justice policy is no, but policy can get changed with a pen. what is it? sitting president be indicted -- can a sitting president be indicted and prosecuted? can the whole process be forced through?
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inf. turley: identify congress, and i say look, this is a close question, this is not -- this one has always mystified me. when i testified during the clinton impeachment, i said at that time that not only does that only -- that not only impeached forbe perjury, but he could be tried in office. ms. van sustern: those are two different things. prof. turley: they are, but starting with the constitution, there is nothing that says the president cannot be indicted. nothing. you think something that amportant, they would utter few things about it. that is because impeachment goes to the office, indictments go to the individual. of course you can indict a sitting president, but that means essentially look, once you indict a president, the chances that the president is going to see the inside of a courtroom
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during that term is virtually nil. ms. van sustern: let me do a flip question. if the constitution is silent about that, the president has extensive pardoning powers, can he self pardon and do so respectively? prof. turley: i think he can. people are arguing against indicting sitting presidents, you are reading into article two a sweeping immunity to the president. where does that come from? where in the constitutional convention is there any inkling they wanted to give the president this level of immunity? argument is well, if you you wille president distract him. more than impeachment? so these arguments are really without a basis. if a president is indicted, my guess is it would occur after the term and more importantly,
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judges are extremely flexible when it comes to presidential time. speak to that, about the negotiations to even sit down with the president for an interview. when it comes as self hardening, greta, best self pardoning, -- self pardoning, .reta, yeah it is a box set there is nothing in the constitution that said he is excluded from the list of pardon recipients. that might become common impeachment issue because you abuse the pardoning power, but you cannot have it both ways. ms. van sustern: you cannot pardon yourself for future crimes, but if something and you few years ago are president, you have not been indicted, you expect it to be coming down the road, you could pardon yourself? prof. turley: you can pardon for crimes that have not been charged. i think the courts are excepting
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on that. mr. eizenstat: i agree entirely with jonathan, with the long view that it is almost on to conclude that the president cannot constitutionally be indicted. citeght, in addition -- i , in addition to the argument jonathan's making, a case where instead of either settling the case, he said, i am immune. what i viewed as an utterly extravagant claim. so that is an unkind thing to say. well, the supreme court of the united states agreed it was an extravagant claim, 9-0, with two of president clinton's own appointees agreeing that there whatsoever for a president to say, i'm immune.
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ms. van sustern: that is civil. mr. starr: i know. that he,eve it follows as someone who's not above the the opinion says mr. president, you are just like the rest of us. we respect you and justices, as jonathan just said, will take this into account. coming to your point you are pressing, greta, rightly so, is soon you can be indicted -- assume you can be indicted, the two opinions concluding to the contrary that the president cannot be indicted -- those do govern, unless changed, robert mueller. so the president cannot be indicted under justice department learning and teaching. ms. van sustern: if they wanted to change that, who changes
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that? mr. starr: the attorney general could write now say, i opinions.ith the he would hopefully write it up so it is a recent decision. i am not a big fan of the clinton era memo, which i think is dreadful. moreixon opinion is substantive and interesting. 's. van sustern: and olc office of legal counsel at the department of justice. prof. turley: but they actually did not say, we conclude there is immunity while in office. they'd knowledged, correctly so, ,here is -- they acknowledged correctly so, there is a division of opinion, some believe clearly he can be and .ome believe clearly he cannot some have set as a policy matter, we do not want to get into that, and we think it is a better practice not to indict someone in office, who is not quite as powerful as people
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portray. mr. starr: in terms of the trial aspect, i do think there could be a constitutional claim of that isence unconstitutional as applied. let's say the hypothetical judge who hates the hypothetical president will just drive the president and his lawyers mercilessly, no extensions or postponements. i need to go to white osiris because i will be interviewed just a buenos iris -- to buenos aires because i will be interviewed -- no, mr. president. the state of the union -- no. insane hypothetical. who do you think you are, federal district judge? you must show respect to the presidency. mr. eizenstat: i thought it was because they turned down greta. ms. van sustern: [laughter] too. thinking that
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in hypotheticals, roque special prosecutor hammering the white -- a rogue special prosecutor hammering the white house. is there any recourse the a runawayhas against unarme investigation? you use thaten term, rogue prosecutor, memories come back to me -- out of control, witchhunt, etc. president clinton was much more elegant than president trump. he didn't tweet. ms. van sustern: he didn't twitter, yeah. mr. starr: but he did his dirty work of challenging the prosecutor through surrogates. stuff.pretty dirty but go plugging my book, ahead if you see fit, the holiday season is here. [laughter] ms. van sustern: and he
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raises through the audio. a book mr. starr: that's right, i will get his book for the holidays. so this is the thing -- yes, i wanted to be fired so i could go back to the university. if i was really guilty of misconduct, so under the statute , as rightly pointed out, the attorney general has certain controls and can fire the independent counsel for good cause. the statute, under one of the anomalies of the either,is, had i been had i accepted it with good grace, written my book, gone off and lives happily ever after. if i had been fired, this was another very strange dimension, and i think it is unconstitutional. i could have filed an action in
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the united states district court to say to the judge judge, overturn that decision. judge coulderal overturn the single judgment -- maybe not so considerate -- of the attorney general of the united states. flagrantly, completely unconstitutional. but that was, as i said, to try to achieve -- i do not want try and so skeptical about the noble call stu has lifted up so eloquently, about the independence and integrity of the investigation, but we want accountability. i believe the current regulations achieve that balance. there is a little bit less you wouldce -- maybe say there is a lot less independence. i disagree with that, because the regulations provide for day-to-day independence in conduct of the bob mueller investigation. i know of nose ingestion, none that there has been any interference -- no
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investigation, none, that there has been any interference with the day-to-day conduct of the investigation. then you have the authority by the attorney general to fire the special counsel now, for good cause. so i think we are in the right place, we were already in the right place because one of our last one of our lamentations with was we were to investigate the had we saw the president committed perjury in the white water phase we just didn't have the evidence to prove it. all kinds of reasons why. susan wouldn't cooperate. documents had been destroyed. just in the extraordinary course of business and so forth.
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but here is the thing. janet reno -- and god rest her soul, she was i think an honorable person who appointed independent council counsel after independent counsel but something happened and she -- i talk about it in the book. she went south on us and she became hogs tile. well, i think the president -- hostile. the presidentsy was in peril. it wasn't just some failed land deal in arkansas or what have you. i wanted her either to fire me or stand by me at least to go out and say at a press conference by the way it's a free country so feel free to criticize the independent counsel but don't criticize him on the basis that there is no justification for you looking into the monica lewinsky phase of the investigation. because i had the evidence that caused me to believe that the president of the united states may have committed perjury, may have tried to intimidate
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witnesses. he did. he did both. and it had to be investigated under the statute. just's he said at the outset. when the trigger with was too much of a hair trigger and for them to have to go through that. but he went through it because the attorney general determined i had to do it. and that's what janet reno did the investigation has to be investigated. but she then wasn't there to tell the public he's doing what i told him to do. criticize his techniques but don't criticize the fact of the investigation itself. that's the erosion of lines of accountability that i think were at the heart of the structural problem with the independent counsel statute.
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>> there's no question it was difficult to fire than it is now. you had to show improprietaries. now it's more good cause. however i do agree with ken that even though the standard was higher under our 78 law, it still requires the attorney general to find good cause, misconduct, and you have one other and that is you and the audience as american citizens. if an attorney general attempts to fire a special prosecuter who is doing his or her job, that has to be under the regulations. now, given in writing for the reasons, and there would be a huge backlash against firing someone as special prosecuter who was doing his or her job. in fact, with respect to
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mueller, there has been very strong bipartisan statements in the senate and the house, let him finish what he's doing. so i think in the end the combination of the standard of the necessity to find misconduct, to do it in writing, and then to stand before all of you and explain that this was not a political effort to stall a legitimate investigation, provides significant protection. not as much as we had in the 78 act but significant protection. not just for this special prosecuter but for any in the future. >> talk about accountability. let me address another issue is. it has been reported -- i don't have first hand knowledge -- that some of the staff lawyers on bob mueller's staff have had some rather remote contacts -- whether it's a contribution to
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the hillary clinton campaign or some contacts. should those lawyers have been selected when we're so -- we have such a hair trigger about making sure that all our investigations are so perfect. should those lawyers have agreed to the employment on it with any even remote connection to the political opponents' campaign and especially the fact that there are thousands of law yrs they could have found across the country who don't have that. do you have any problem with that? >> well, part of the problem that mueller has is that federal law doesn't allow you to make inquiries into the political affiliation of employees. but having said that the attorneys themselves can raise these issues. >> or should? >> i think they should. quite frankly. one of the attorneys tangentially represented the clinton foundation or someone associated. in my view that's one of those
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things where you say, you know what? i don't think i'm the best person for the job. i have said repeatedly the one failure that i see consistently in this has been conflicts of interest. i think mueller has a conflict of interest. he's a witness to the matter. rosenstein, i still can't believe that he did not recuse himself, it is something that was raised by department of justice lawyers correctly. rosenstein with was cited for his memo originally as a reason for firing james comey. and then there was that very famous conflict between rosenstein and the white house. he was directly involved this those events under investigation. so i think throughout this there has been a failure in my view to create these bright lines. >> do you agree, that he is a witness and -- because 23 you're going to have that glaring conflict which many lawyers i think agree with
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jonathan. i couldn't figure out why he was involved in it in light of the fact that he's a witness -- is is that you are handing ammunition to people who will be suspicious or on the fence about the integrity of the investigation when you have those things right from the very start at the top of the investigation. >> i have great confidence in the integrity of rod rosenstein. he was on that original trial team. we stayed close ever since. o if he was in fact advised by ethics advisers in the justice department, then i might very well take a different view because those pieces of advice have to be taken carefully. but presumption of regularity. what he was doing -- >> what about the other part of it, the appearance of improprietary? because some would think that's inappropriate that he is a witness and he is a also making
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decisions on the appointment. > but i'm saying i'm crediting his determination that he did not believe he had a conflict of interest. but more broadly, i think this is very important in terms of the appearance. and i want to go back to your original question. i have expressed concern about some of the people around bob mueller. i have total confidence in the integrity and honor of bob mueller. but when in this heavily political environment criticisms are made that you have a bunch of partisans around you and that they're out to get the president, i believe those have to be taken seriously. and then you do something about it. so happily, in my story to go back down memory lane, sam dash, does anybody remember the legendary sam dash. >> taught at georgetown law school. >> and a really great man who
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eventually resigned from the position of ethics counsel on grounds of principle but not on the referral, not on the lewinski phase. but sam came to me and said you're -- paraphrasing -- that you're a partisan republican and whether you think that's fair or unfair there's a an issue of the appearance to the american people that you're going to just be out. you lost your job because -- i was solicitor general. you lost your job because president bush 41, a great man, was turned down, was defeated by william jefferson clinton. so i guess you have a b in your bonnet. i'm not asked to do this and so forth. but i understand what you're saying, sam. what's the answer? he said hire me. well, it turned out to be exactly the right thing to do. hire me a as your ethics
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counseler. did this make the "new york times" at a all or the "washington post"? i don't think so. but it came to be known within the legal community that there's an ethics counsel there named sam dash, a hero, a man of integrity, watergate, and there's a check and a balance. i think had bob asked me -- mr. mueller asked me, i would have said have some -- not me but have some functional equivalent of sam dash. >> any questions tomorrow the audience? this is my husband so asay oh oh. >> how do you work this? >> now we know it's my husband. >> we're about to see the first amendment has its limits. >> i've heard a lot about first of all it bugs me -- i'm a lawyer by the way. it bugs me when i hear that
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this person has all this integrity and this prosecuter has all this integrity. we are ruled by laws not people and i don't care how much integrity bob mueller has. as jonathan said in the beginning, he was too involved in the picking of himself by rosenstein. and rosen steen is a witness. it's just too close. and then you have right off the bat these lawyers that are hired that have worked for something to do with with the clintons or contributed to hillary. it just stunk as improprietary and the 14th a and the a 5th amendment give us due process.
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the supreme court says due process equals fundamental fairness. when you're going after the president it is very important that this appears to be fundament canly fair. right off the bat when it came out that you had hillary people or whatever they described them democrats against trump, you lose 50% of the people. and i think there's a duty with due process when it's to this level -- the level of going a after the president -- that has to be caesar's wife. it really does. >> i would a add one thing maybe a a departure from ken. i don't think this is an appearance issue is. i think it's a hard-core conflict. that's what i don't get. he's going to get a report looking into the firing of comey. his own professional status and reputation is going to be affected by that report. he was one of the critical players. one of the issues being looked at is whether he was used or played by the white house.
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so mueller is going to come to him and say you help me define the scope and whether i'm going to give all of this report to congress when he's reading about himself. to me it is other worldly. >> but hasn't that been perhaps you're right i'm not saying you're right but perhaps you're right. but hasn't that been corrected by the appointment of matt whittaker? we now have an attorney general. now, we read these reports that rosenstein is still receiving information reports from bob mueller but that can only be with the aprobation of the acting attorney general. >> but he was in charge for most of the period of investigation. in this case jeff sessions was the one who did the ethically correct thing. he removed himself and had no role. >> different perspective than your husband. i'm really curious, let's say
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that the special counsel comes out and proves and it is verified by a jury or whatever the process would be that donald trump gained the presidency illegally. he had a conspiracy with russia, he defrauded the american people, one illegal galt after the other and therefore would be considered an ill legitimate president. and having gained that office ill legitimately. richard painter and i agree, the former bush ethics lawyer, that void abniche yo would be an appropriate principle to stand up for at that point and to undo virtually everything he has done because he literally did not have legal jurisdiction to do that. >> i respect the perspective. but welcome to the world of experience. so i will quote the great chief justice john marshall. that proposition is simply too
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extravagant seriously to be maintain. it really is extravagant. how do you avoid the actions of the president of the united states? that sounds to me with all due respect utterly fansful. >> by legal principle. >> don't you love all the due respect. >> no one says due respect to me. >> but seriously, if i break into a house, that does not give me legal permission to sell the furniture or sell the house. and if donald trump broke into the white house, he should not benefit from the i will legality. what it does is encourage people to commit as many broken laws as possible to get in there and then they're immune. >> the problem with your wonderfully creative analogy -- where did you go to law school? >> i went to usc. >> university of southern
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california or south carolina? >> southern california. >> i thought as much. that was a compliment. >> my dad paid a lot of money for that tuition. what are you saying about usc. not as good as pepperdine. >> i can tell that your con law proff was my dear friend who probably would have embraced exactly what you said. and here's the problem with that. we have this this country something called elections. assuming that all of what you said was right, breaking entering and so forth, the people have spoken. so the -- if i may say so, the constitutional process trumps your hypothetical. >> do you agree with that? >> we'll talk afterwards. >> my name is jim, i'm a former journalist, retired journalist. i have a question tor jonathan.
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if the hypothetical president tells something that is not true, for example, this is the strongest economy we've ever had in the history of the united states, what's wrong with a journalist coming on the air and saying i'm sorry mr. president this is not the strongest economy we've had in the history of the united states? >> there's nothing wrong with it. that's why i said this president gives you plenty to work with. to raise that. my problem is the level of raw , but y that i see now this idea that these anchors now -- not the guests -- are actually holding forth and saying here's why this guy is a liier. here's the argument. why is he doing it this and we're losing the honest broker role that we have in the media, including in cable. i'm not too sure where people are going to get it from. the rise of cable and social
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media. a lot of people have said this is all about millenals. i think that millenials -- i've changed my view. i think the problem is our generation. i think we've messed this up. i write my columns about a 5:00 in the morning and my kids get up and go to school. they'll sometimes ask what's your column on? i'm looking at this story. and they always ask the same thing. the question that i would have never asked. is it true this and the reason i say this is because, when we were -- when we grew up you would listen to walter cronkite said was was true because he's walter cronkite. right? i'm not too sure this is such a bad generation where they're a little more skeptical. they don't necessarily trust what people are saying. but the problem is us. what have we done to the media where you can't turn on a a station any more without having this level of advocacy instead
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of coverage. your point goes to coverage. that's the job of a a journalist. but that's not what i'm seeing. >> sir, your turn. >> i would like to ask can for a couple of specific applications of general points that they made. ambassador, i talked about bobby kennedy certainly not having been -- would not have been an impartial attorney general in a case involving john kennedy. i'm wondering whether that same sort of a situation applies to matthew whittaker who has defended consistently president trump for what he considers to be a witch hunt. as for judge star, you talk about the appropriateness or the inappropriateness of mary ow being talked about by the authorities as being guilty of
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a number of crimes but never being indicted. again, does that apply to james comey's report -- public report on hillary clinton and as a corollary do you think it impacted the election a at all? >> so look, it is unfortunately very typical that presidents often appoint as their attorneys general people who have been very critical in their campaign. nixon, john mitchell was his campaign manager for ronald reagan it was his campaign manager and then later ed mees. it is very typical for presidents to do this. again, a great line that jack kennedy had with when they appointed bobby and they said how can you appoint your brother? well, i thought he needed some legal experience. jokes by the way in politics
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gets you a long way. but the fact is that all the cabinet officers are political appointees. the fact, however, is also that the attorney general is particularly critical in terms of administering the laws of the united states in a a fair way. and when the attorney general is someone who has been the campaign manager for the incoming president, or the brother, it obviously raises flags. it's why the senate should pay particular scrutiny to whoever the attorney general is. and i think that's one of the reasons why, for example, mr. whittaker is not -- was not named ultimately as attorney general but mr. bar who went through the process once. this is a a really critical function and it gets back again to the special counsel because you want to make sure the and when a situation arises that you have an attorney general who has the gumption and
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sufficient credibility and even though the president is appointed, to appoint someone of credibility as special counsel and allow that person to do his or her job. that is a very high bar and a very important bar. and it's ultimately a protection for all of us. when you look at the difference between the united states and the auto cratic governments with whom we're now competing, particularly china, it comes down to one phrase that's at the bottom of the constitution, from start to today. the rule of law. it is the respect for the rule of law. and that p pervades everything that we're talking about now. again, the 78 act i think was terrific. it perhaps had some flaws. ken mentioned some. i think it was the hair trigger which was amended. in 83 that was removed and a much tighter scrutiny was required before a special counsel could be appointed.
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but at the end of the day it's the attorney general underscoring the rule of law. we look to that person to do so and when it comes to appointing if necessary special counsel to appoint someone of credibility and allowing that person to do his or her job. >> two quick points. one on your second question. i think james comey acted inappropriately in doing what he did during the campaign, making these public statements and especially toward the end of the campaign announcing the resurrection of what we thought was a more bund election. i have no idea what effect, i would leave that to the political side. condly a brief reflection to what was just eloquently said. in the wake of government not only did the ethics in government act come to being but there was a hearing lost in the midst of history and the
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earing was to focus on legislation by the chair to create an independent justice department along the lines of the fed. and one of the most articulate spokespersons against that proposition was ted sorneson. does anyone remember that name? the legendary speech writer for john kennedy. and drawing from his own experience in the kennedy white house and seeing up close and personal the interaction between the attorney general of the united states who happened to be the president's brother, that he said please don't do that. the johnson department needs to remain part of the executive branch. and it with was more of a prudential rather than constitutional argument but one of the things he said which i think echos down the corridors of this last half century is it comes down to integrity.
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will attorney general robert kennedy say to mr. president my brother you can't do that. you don't have the authority to do that? guess what i saw it up close and personal as chief of staff to the attorney general. mr. president -- reagan -- you cannot do that. now, who was talking to him? the attorney general of the united states in whom he was well-pleased. he wasn't campaign manager. bill smith was a very distinguished senior lawyer at my law firm at the time. he was an original member of the fabled kitchen cabinet. ut when bill smith told -- and he never called him ronnie once he was elected. but once he told the president you cannot do this and the specific issue was legislative veto which had been embraced. very important debate. can the legislature overcome or overturn regulation?
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anyway, without getting into the specificings, the attorney general said mr. president that is unconstitutional. here is an opinion from the office of legal counsel authored by ted olson. great lawyer. you know him or heard of him. and then this our view it's our constitutional. the president accepted it. guess what happened. ur successer and certainly his name is escaping me. but my friend from stanford having a a moment here goes absolutely bonkers. the senior domestic policy adviser to the president of the united states said you did an end run. we never had a debate. marty anderson. marty anderson was a huge proponent of getting ahold of the regulatory state -- which was a great initiative of the carter administration -- of how do we achieve what with we call regulatory reform? a and this was a huge tool. the president accepted that. why?
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because he knew the attorney general, had confidence in him. >> about a month ago i finished reading judge star's book. >> thank you, congressman. this is a great former member of congress from philadelphia. >> as long as it's proacht. >> but i remember in the book you had some lamentations about your stoicism as special counsel with the media coming to you on a regular basis and you stoically and quietly refusing to engage the media throughout your period a as special counsel. i was wondering what your advice would be -- >> sounds a you're saying i was wallowing in self-pity. >> no. you were stoic. and while you were counsel i think there were good reasons for you to be worried about talking too much to the media. but here we are in the home of free speech and media first amendment rights. what advice would you give or maybe some of your colleagues as to whether
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special counsel mueller is talking too little, too much. this past week sort of the first time he launched a rebuttal to some of the assertions against him. should he do more? should you have done more? >> this is congressman jim coin and a very wonderful friend for someone who is educated and yale and harvard business school he is remarkably learned. jim, i have a different approach than my friend bob mueller. i believe there is a public accountability function that you should say what you can say consistent with with grand jury secrecy and the general confidentiality of the investigation. he has chosen not to do that. i don't know how he's been able to do that because, as alice will attest we had the prets camped outside our house and office. but with what i describe in the
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book is a couple of real bone-headed mistakes. remember la guarda when i make a mistake it's a bute? i finally then agreed to a couple of interviews. and both totally backfired. one caused the very distinguished chief judge of our district court who i miss, she's deceased, norma johnson was a great human being. and fair-minded jurist. when she read the p piece in brill's content, i was then subject to a pretty thorough going. i personally. investigation into whether i had vile yate 646 e. i hadn't. in the fullness of time it was vindicated. but you have to be very cautious. so i think perhaps bob mueller, indful of that, said star made
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bone-headed mistakes talking thg to do is have a press spokesperson never comments. >> it seems like there is no perfect answer to that. it is a dammed if you do end and if you don't. you are going to get hit no matter what your decision is. much want to thank the panel for being here today. i want to thank all of you. i learned a lot. [applause]
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money runs out for several
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agencies this coming right unless congress passes legislation. one of the main issues is whether president trump's southern border wall gets funding. the house meets next for legislative work on wednesday with votes scheduled in the evening. the senate returns on monday for work on a criminal justice overhaul plan that would in part change sentencing rules. watch of the house live on c-span. the senate, on c-span two. of service in the senate, claire mccaskill gave her farewell on the senate floor. >> it probably will not surprise my colleagues to know that i don't like the idea of a farewell speech. i have not spent a great deal of time contemplating it over the years i have been here.


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