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tv   The Rachel Maddow Show  MSNBC  December 16, 2017 4:00pm-5:00pm PST

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and that dynamic is killing it. >> ben and michelle, thank you for making time on this friday evening. a reminder, open enrollment for health care on the affordable care act ends tonight. the deadline is just a few hours away. you still have time. go to heath the rachel maddow shows starts now. >> thank you, my friend. thanks to you at home for joining us this hour. i'm doing something a little different. we are doing something special tonight. and i think we have picked exactly the right night to do it. just in today's news, the president went to the grounds of the fbi and as he was heading into the fbi where he spoke at an fbi ceremony, he proclaimed the fbi to be a disgrace. he was asked about the prospect that he might pardon his national security adviser, mike flynn, and he said, i don't want to talk about pardoning mike flynn -- yet. we then got a sort of red flag thrown by congressman adam
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schiff, the top democrat on the intelligence committee, who went public today with his concerns that he believes the republicans in congress are trying to end the house intelligence committee investigation into the russia scandal by the end of next -- by the end of this month. he said he thinks they're trying to wrap it up now and he was explicit about why. he said he believes the republicans' view of shutting down our investigation is a necessary prerequisite to shutting down bob mueller. therefore we learned that the president's legal team is going to be meeting in person next week with robert mueller and his prosecutors. we're not exactly sure why. we then got confirmation from "the wall street journal" that the subpoenas that had reportedly been sent to deutsche bank, which the president's lawyers tried to throw cold water on, we got confirmation that deutsche bank has received multiple subpoenas from the mueller investigation. we got further reporting that wells fargo has also received at
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least one subpoena from the muell muell mueller investigation perhaps as recently as last week. that may be important, it may also be the cause of anxiety in the white house because the president has described his business dealings and financial dealings as essentially a red line for the mueller investigation, one that he would not expect the mueller investigation to cross. so all that happened today, on the day we had planned to do a special thing. i think this means that one of my ancestors several generations back did something good one day because it's paying off for me right now. as a show and for me, as a host of a news program, we very often end up wishing that we had a lawyer or seven around we could speak to for free who would help make sense of daily developments, particularly in this scandal afflicting this presidency. and that's not just because it's a legal scandal that involves prosecutors and defense teams
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but because there are a lot of parts that seem to be news but those of us without law degrees, it doesn't make sense. particularly feels difficult to figure out whether some legal action that happened in this scandal is a big deal or whether it's just what happens in cases like this, it's normal, don't get too excited. because of that ongoing desire, we have decided for this special rachel maddow show tonight to gather here four of the best legal minds in the country who will answer our phone calls. we're calling important people -- we're calling an important caveat there. we're sort of thinking of this as trms law school, trms esquire if we're feeling fancy. part of what we'll do tonight is air out some of the questions that we've had as a staff about this scandal, but we've also solicited questions from you guys at home. we have a good set of viewer questions to ask, as well. without further adieu, joining
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us, our professors for the night. there will be a quiz. chuck rosenburg, a job appointed by president bush and until a few months ago administrator of the drug enforcement administration. barbara mcquaid was an appointee for the eastern district of michigan and now a professor at the university of michigan law school, in addition to being a fake professor here tonight. edward stanton, served under president obama and is now in private practice. and paul fishman, the point guard, obama's attorney and now a real life law professor at seton hall. thank you for being here tonight. >> happy to be here. >> as you can tell from the rapidity of my speech, happy you're here. feel free to tell me if i'm asking a dumb question. or to jump in on each other. i expect that you all will not
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agree on all of these matters, so feel free to fight it out if we come up with something that we don't all feel the same way about. let me start by asking about the way the president made news about mike flynn. mike flynn pled guilty to one count of lying to the fbi. the president said he did not want to talk about pardoning mike flynn yet. i'm really interested in that "yet" as a matter of strategy. if the president were to pardon mike flynn now, what would happen to the testimony that mike flynn has presumably already offered the mueller team as part of coming to this plea deal. am i right in assuming that he's probably already given information to mueller's team? >> i think you should assume he has and assume he's given a lot of information to the muller -- mueller team. so to answer your question, if the president were to pardon mike flynn, that doesn't preclude the mueller team from continuing to use information that general flynn has. >> okay. >> in other words, it gets him off the hook for a crime he may have committed but doesn't remove the obligation to give
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testimony should he be subpoenaed. >> in terms of him testifying, i know that the calculus that mike flynn might have about continuing to cooperate with the government might change for him if he's pardoned if he knows they can't prosecute him anymore. would he end up testifying? he's already given them information. they want to put him on the stand. can they still put him on the stand? would it affect the value of that testimony? >> two things about that. one is, you can compel him to testify and require him to answer questions, but i think when somebody is being compelled, it's very different than if they have an incentive to cooperate. in that scenario, they would be volunteering information, suggesting leads, connecting the dots for you. if instead, you got to pull teeth to answer questions, you'll get yes, no answers. he'll answer the questions, but the other wrinkle here is, even if president trump can pardon michael flynn, he couldn't pardon him from any state crimes
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that he might be exposed to. they could use that for leverage, as well, potentially. >> that brings me to another question i have been wondering about with flynn's deal. we got a great question from a viewer named jim who wrote and said why would a defendant agree to a plea deal that flynn did? it doesn't really protect him from much. and i think what jim is getting at there is what is in the plea deal, what's in the statement of the offense and everything is not very much information. and maybe that means they don't have very much on flynn but it's my understanding that at least in some jurisdictions, when you get a guilty plea, you lay out every single thing you got expect them and expect the agreements to be juicy. in terms of everything the government's got. this was very thin. >> even if you don't write out in the plea agreement everything the person admitted to. let's take a step back. when this conversation happens between flynn or someone in flynn's position and a prosecutor, someone broaches the subject of a plea agreement and cooperation can come from the government, can come from the
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defense lawyer. but if the government is interested in flynn's cooperation, they want to know what he's going to tell them before they sign the deal. >> okay. >> at some point before that plea agreement got signed, my expectation is that general flynn first through his lawyers but then directly face-to-face with the agents and prosecutors gave them information on a proffer which says here is what the information i have and i would say if i was called to testify, here's what i'll say about my own conduct and about everybody else's conduct. once that happens, then the plea agreement is negotiated and the terms are laid out. what's weird about this plea agreement, in the context of that conversation, ordinarily, mike flynn would have been asked by bob mueller or his staff and the agents, tell us everything you did. that's the first thing they ask. and the reason they ask that, that's how they measure someone's capacity for being truthful. if he told them everything he did, his lawyers say now that he's told you everything, he wants to be protected from being prosecuted. >> for all the things he just
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confessed to. >> so sometimes the plea agreement will say what those things are, but sometimes it will say, the government will bring no further charges related to all the information about general flynn's conduct, about which the government has information as of the date of this agreement. that phrase, those clauses are missing from this agreement and it's strange that it's not there. because he's not protected from being prosecuted for all the other stuff they're investigating him for, or that he's told them about. >> it's possible there is nothing else there and the special counsel feels there is nothing else there and they're comfortable going forward with their claims. the 1001 -- >> what is that? >> 18 usc 1001, lying to the fbi. it was a tool back when i served as u.s. attorney that we used, not frequently, but it was always a good resource to have. often times when you may not make a full case, where there's
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conspiracy, but it's a good way to lock in a witness, get them to cooperate very early in a case. so i think a lot of that is what's going on. you see the two guilty pleas we have, they're both 1001 claims. that's not something that's typically used all the time. but it's also a resource that in in case the special counsel has to lock in that testimony, that proffer, to find out what's going on and to move forward with the investigation. >> barb, to your point if flynn were pardoned, that would be a federal pardon, the president can't pardon anybody for state crimes. there is also this line in flynn's deal that says he has to cooperate with other federal state and local law enforcement authorities in any and all matters. and he has signed that. is that boilerplate in everybody's plea deal? >> it's not, and i think you have correctly detected what could be telegraphing that this could be, for example, a state attorney general's investigation. we've heard reports that the new york attorney general might
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believe investigating some mearths around paul manafort. if necessary, that could expand to other crimes as well. i don't know that there would be state jurisdiction over everything that's going on, but certainly it parallels many things. most states have a computer fraud and abuse statute, for example, if that becomes one of the crimes. so if they have to shift gears and move into the state realm to avoid a pardon scenario, i think robert mueller is seeing those chess moves on the board. >> let me ask you about one other part of the flynn reporting, at least around this deal that i just don't -- i get as a matter of drama, but i don't get as a matter of law. a lot of people are saying that general flynn has been really, really acutely interested in protecting his son from being prosecuted. his son as far as i know just had his first child. he worked with his father closely at the flynn intel group. i get the human drama of this. what i don't get is how a person can trade their own information for somebody else's liberty. can you pass your "get out of
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jail free" card to somebody else? >> not typically. it's rare. i've seen it once or twice, where i have so much information that is of value to the government that i might be able to trade it for barb's freedom. now, it's not encouraged. it's unusual. it can happen. can i make one other point about the flynn son? >> sure, yeah. >> i think this is important, rachel. a lot of people have been talking about how the mueller team was leveraging the son or using the son to get the father. they were playing one off the other. i don't think good prosecutors actually think that way. let me tell you how i think good prosecutors think. it might be the case that the child, the son, committed a crime. and the fact that you're looking at him puts pressure on the father but you don't do it for that reason. you have to make an independent judgment about each defendant. here is what i mean. let's say you charge them both and you only charge the son to leverage the father. that is the only reason you
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charge him. then something happens to the father. he gets hit by a bus. he's not there for trial. can you bring that case against the son as a stand-alone case in front of a jury of 12? and if the answer is "no," you don't charge him. sometimes talking about using the son to leverage the father is a little glib. good prosecutors -- and bob mueller is a good prosecutor -- you make independent judgments about each defendant. it might have the effect of putting pressure on the father, but that's not why they did it. >> two other quick points to that. one is, sometimes it happens that once someone comes in to cooperate and gets debriefed by the government about all their information, sometimes part of their proffer is, by the way, my son didn't know anything about this. and so sometimes the decision not to prosecute a family member is made reasonably by the prosecution team -- >> intrinsically? >> yeah, that's one thing. so i think it's property to keep that in context.
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the second is this, if there's an understanding, unwritten, in the plea agreement, that general flynn's son will not be prosecuted because of this deal, the government will have to disclose that fact to any defendant against he might testify. >> explain how that would work, i'm sorry. >> so let's say general flynn ends up testifying in the paul manafort trial. >> okay. >> and paul manafort's lawyers would be entitled to be told, manafort himself would be entitled to be told by the government that part of flynn's deal is not in the agreement. part of the deal is -- because that would go to the question of flynn's culpability, and whether he's actually gilding the lily or embellishing testimony or hiding facts in order to protect his son. so they would be entitled to know that, if that's part of the deal. >> on the proffer, in terms of what flynn offered, is that something he just does in a conference room with prosecutors? does he testify to the grand jury at any point? >> he could.
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so the first thing that happens is a proffer. and the proffer can be used for certain things, not others. it can't simply be introduced by the government in a case as an admission or a confession by -- by michael flynn. this is what he's testified to, ladies and gentlemen, and therefore you should convict him of x. can't use it for that. >> okay. >> it can be used for other things, if he later tfrts inconsistently with what he told the government, they can cross-examine him with the fact that he said something different. but my expectation, if i'm bob mueller, and if i've just heard the president of the united states imply that he's thinking about a pardon for mike flynn, i'm getting mike flynn into the grand jury to testify under oath as quickly as i can, so that that testimony, whatever testimony he's going to give is locked down. >> all right. one last question for you on flynn and then we'll take a quick break. we divgot a question from viewe jean. what if any are the liabilities incurred by white house staff, other than the president, for failure to act upon the security warnings with regard to flynn?
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so this is about the 18 days between the warning from acting attorney general sally yates about mike flynn being compromised by his dealings with the russians, the 18 days that elapsed before the white house apparently acted on that warning and asked for his resignation? i'm wondering specifically about his security clearance. is -- if you are under fbi investigation, if you are under criminal investigation, aren't they supposed to yank your security clearance? once the white house was notified that he was under investigation, shoonuldn't they have pulled that? >> so the answer depends in part -- hate to be a lawyer here -- but it depends in part on what he's under investigation for and what the justice department conveyed to the white house. >> okay. >> so the answer is, perhaps. not automatically. perhaps. and there are remedies in between. letting him keep his clearance, and pulling it. so you could exclude him from
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certain topics. if we're talking about x, then he doesn't get to sit in on x. there's a range of things he can do to -- gene's question, would somebody in the white house have liability, i guess is the question, for failing to act on that knowledge. the answer is, probably not criminal liability, unless they're doing it to cover something else up. and you could spin out a scenario where that might be the case. but in the more typical case, if someone failed to act, then they too in theory could lose their clearance, if they weren't doing all they could to protect national security information. so, good question, highly fact dependent. >> okay. >> and there's one twist to it too, which is that i believe the public reporting is that the don mcgann briefed the president on thursday, january 26th, or the next day, about the fact that sally yates had said, we believe that general flynn was not telling the truth about his -- about his denying talking to the russians about sanctions. so if people didn't yank the
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security clearance and it was the president's decision, it's hard to imagine how everybody else -- it's the president who ultimately gets to make that decision. >> right. the president basically has unilateral authority over security clearance decisions, even if they're really bad decisions. >> that's right. >> my panel is sticking around. much more of law school in just a moment. you haven't finished your first year. we're not even to torts. lawyers love that. my digestive system used to make me feel sluggish but now, i take metamucil every day. it traps and removes the waste that weighs me down, so i feel lighter.
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would you consider a pardon for michael flynn? >> i don't want to talk about pardons for michael flynn yet. let's see what happens. i can say this, when you look what has gone on with the fbi
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and justice department, people are very, very angry. thank you very much, everybody. thank you. >> president also today said that he was going to rebuild the fbi after describing the fbi as a disgrace, he said we're going to rebuild it. joining us is the all star group of former u.s. attorneys and justice department officials. thank you all for doing this. so the president today did go hammer and tongs against the fbi. he described the fbi has a disgrace and said we'll rebuild the fbi. i want to add to that the fact republican congressman trey gowdy, head of the oversight committee, he said last night, that he would be, quote, a little bit surprised if fbi deputy director andrew mccabe is still an employee of the fbi this time next week. he was asked about mr. mccabe and his testimony in congress and he said he expects him to be fired before next week. here is my question, with the fbi under this political attack, i know they are always described
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as independent but how independent are they? who could fire the fbi director, the fbi deputy director? who could influence decisions within the fbi from outside the fbi? >> well, i think they are truly independent. they can be fired. you can fire the director and keep going down the line, but with 35,000 employees, at some point, the buck is going to stop. i worked with fbi agents for over 20 years, they're the most professional, dedicated on mission people that i've ever met. that's why i find this attack on the fbi to be so harmful. in self-interest, president trump is trying to undermine the public credibility of the fbi for this case. but the effect he's going to have is to undermine public credibility in every case. agents are not going to care much, say i've got thick skin, i can take it. but in terms of of the thousands of cases that are pending around the country, bank robbery cases, white collar cases, the jury is
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hearing the president of the united states say the fbi is a disgrace. what does that do to their confidence when they're deciding those outcomes across the country? so i think it's anti-law enforcement and pro-criminal to make these kinds of statements. >> edward, you were outside the beltway u.s. attorney in the western district of tennessee. when barb says this is nationwide implications across law enforcement and in a corridor conflict here, does that ring for you somebody that prosecutes cases in tennessee? >> i'm concerned about the moral -- morale within the bureau. you have dedicated men and women that do a great job no matter who is in the white house, not a red or blue way to be an fbi agent but to serve and it strikes -- i've had conversations and it really strikes at the morale of going in every day and doing the great work on the behalf of the country. so that's the biggest piece. when you hear these rumblings, to answer your earlier question, who can fire the director, i mean obviously we've seen this,
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the president. >> could the attorney general fire the fbi director? >> i don't know there is precedent for that. >> no, it would have to come from the president. you were probably going in this direction. the fbi is 35,000 plus strong. one of the strengths of the fbi is that its political layer is so remarkably thin. by that i mean, how many of those 35,000 employees are political appointees? the answer is, only one. every other man and woman in the fbi is a career civil servant. >> will you describe for our audience your role at the fbi. >> two roles. i had the privilege of working for two directors. i worked for bob mueller in 2002 and 2003 as counsel for the director and also i worked for jim comey as his chief of staff. so i got to work with these men and women. they're extraordinary. i can't prove to you here that the fbi is not in at thatattersn
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tell you they're not. i know they're not. but to barb's point, have a potential solution. the courthouse doors are in america are open to every citizen. every courthouse in america is open to the public. go watch a trial. watch these men and women testify. look at the cases they put together. you can decide for yourself. you don't have to believe us. you can decide whether or not the fbi is in tatters. i can tell you, it is an extraordinary, vibrant, smart, proud, and independent organization. but you can go find out for yourself by watching their work. >> so what happens when we get an attack like this on the fbi? obviously i hear you, edward, when you say that you're worried about morale, given the important work and the national security work as an agency. but what's the consequence? i mean, we all at this table agree that it's a dangerous thing, but i don't know what happens because of it. i don't know what the consequences is, i don't know if i should be worried about what the fbi, as a very powerful agency, might do, in order to
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stand up for itself when it feels like it's under attack in a way it hasn't been in generations. >> well, i think one potential place where this could have some effect, although i'm optimistic that it won't is in the fbi's relationship with other law enforcement organizations both in the united states and around the world. we tend to think of the fbi as investigating bank robberies and white collar crime and the kinds of things we've all mentioned. but the fbi as an enormous role in counterintelligence and counterterrorism, working with state and local governments across the country and their counterparts across the world. if those people think that the fbi is not going to get backed by the president of the united states, that's a problem. i'm hopeful, certainly in the united states, where those relationships are built on long, personal relationships between police chiefs and sheriffs and local tops and special agents of the fbi, that those relationships will, in fact, remain quite strong. and i think you will also see and i hope you see those law enforcement organizations basically saying, wait a minute, they're actually really talented. they're really helpful.
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they work really well with us and they're really qualified to do what they do. >> one, there's been controversy this week, very politicized controversy about text messages between an fbi -- a justice department lawyer? aleasea page was an fbi lawyer -- and a senior counterintelligence official. and there's controversy as to why their personal text messages to one another were made public. setting that aside for the moment, peter strzok was part of the mueller investigation. he was taken off the investigation when the inspector general of the justice department became aware of these text messages, apparently shows them to mr. mueller and that was the end of his time on the mueller investigation. here's my question. what does a countersenior intelligence agent at the fbi do? being the number two official in
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the fbi, on counterintelligence, what's his job? what does he do? how big a loss is it? regardless of whether or not it was a good thing that he was taken off the investigation, how big a loss is it that he's not on there? >> so, first principles, the fbi is also an intelligence agency. a lot of people don't appreciate they're dual-hatted. we know them from the movies as a law enforcement agency. but they're also an intelligence agency. they're part of the intelligence community. they collect intelligence. they share that with other members of the u.s. intelligence community. and so what does an fbi, senior counterintelligence agent do? some of that. where do you get intelligence? well, lots of different ways, lots of different sources. signals intelligence, human intelligence, right? there's a whole bunch of different ways. one of the jobs of the fbi, as at the cia or the nsa is to synthesize that intelligence and
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give it to the operators. sometimes you give it to law enforcement, so they can do their jobs better. and sometimes you give it to other people in the intelligence community so they can do their jobs better. when it works well, all the intelligence community is sharing information with one another and enhancing each of their missions. so senior fbi officials would oversee that process, the collection and dissemination of intelligence, which is really just a fancy word for information. >> but counterintelligence is about other countries, right? >> well, so they also -- and i can't go into great detail here, but, yes, it is. and they also have a responsibility for collecting intelligence, you know, from foreign governments. >> okay. see this is important stuff. we'll be right back. former federal prosecutors and justice officials are here. you're not to your second year, but we're getting there. stick with us. yeah!? i switched to geico and got more! more savings on car insurance!?
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this is the lightning round. you guys don't know what's coming. ready? chuck rosenburg, who plays mueller in the movie? >> can you come back to me and i'll answer at the end. >> yes, after barb. you have to bet. does trump pardon flynn? >> no. >> edward -- oh, no, i gotta come back to you. who plays him in the movie? >> george clooney. >> ooh, yeah, i can see it. there's a cheekbones issue, but
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i can see it. >> that's my answer. >> edward, will trump fire mueller? >> not a betting guy, but i will say no. >> paul fishman, if edward's wrong and the president fires mueller, who will you text about it first? >> you. [ laughter ] >> we'll be right back. thank you. some air fresheners are so overwhelming, they can...
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tonight we have assembled the human twister equivalent of a magic eight ball, only for legal questions. we promise we will not shake them. former u.s. attorneys, thank you again. we're just talking in the lightning round about the prospect of the president trying to end mueller's investigation by firing the special counsel. aside from the prospects of how exactly the president would have to go about that and who he'd have to fire and psych sigo mattic massacre and all that stuff, if robert mueller was dismissed tomorrow, viewer jeff wants to know, what would happen to flynn's guilty plea? would happen to the manafort indictment? what would happen to the justice department's involvement with guilty pleas and sentencing? >> the firing of mueller does not necessarily end the investigation. he can only be fired for just
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cause and conflict of interest. if he were fired beyond that, i suppose there could be some reckoning to go along with that for the person who makes the firing decision. >> what do you mean by that? >> well, i think there would be a lot of outrage if he were fired on a whim and there was no finding of misconduct. rod rosenstein said he was the one who hired him and he won't fire him except for just cause. but to answer your question, what happens to the investigation, i think it continues. it existed before robert mueller was appointed. i think it would continue. the question is, under whose jurisdiction, would a u.s. attorney pick it up, some other member of the justice department? or would there be a new special counsel hired? >> if the justice department hierarchy, rod rosenstein was persuaded that mueller should be fired and the whole investigation was bunk, at the person overseeing it, he could end it, if he wanted to? >> he can end the investigation. the deputy attorney general can
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order the investigation to end, order prosecutors to dismiss the case. but that's not what rod rosenstein is going to do here. if he's ordered to fire mueller and if he didn't quit before he carries out that order, he's going to have these cases, and these investigations. and it will be up to him to decide where the in department of justice they go, the eastern district of virginia in the manafort case or to new york, whether they get sent to the criminal division of the department of justice. but they're not going away just because bob mueller is not at the helm. >> and i don't think that this would, when you say persuaded, knowing rod rosenstein like we do, having served as a u.s. attorney for maryland, rod is someone who is unquestionably -- has the character, the independence to serve. he's served in two different administrations. so i'm sure he cannot be persuaded. knowing rod the way i do, i think he would step down attorney general before being
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persuaded or influenced to direct an investigation one way or the other. >> on that point, were you at all rattled, given the feelings you have about rosenstein, were you at all rattled when he okayed the release of those fbi officials' personal texts, despite the fact that there's this ongoing investigation? >> i'm not sure i'd say rattled, but not knowing all the facts and circumstances, i think what the deputy attorney general rosenstein, what he wants to do is avoid the appearance of impropriety. hi i think he knew the information would be shared and wanted to get ahead of that. he wanted to assure them, it may have been a wrinkle, it was dealt with. but to avoid possibly a cover-up of untoward activity or possibly even illegal. >> i agree, but there's something about that troubled me. i don't think i was rattled, but i was troubled. let me tell you why. the way we view our justice system sort of turns on two
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factors. one is that outcomes are fair and just. if you rob a bank, rachel, and you're convicted for robbing the bank, that's a fair and just outcome. but there's a second way that we sort of measure our justice system, it's our perception of fairness. you rob a bank, you're convicted of robbing the bafeng, but the prosecutor is talking about his disdain for tall white women with dark hair and he's been doing that for 20 years. so you're convicted, but people doubt the integrity. so you need the perception of the system to be fair and you need the system to actually be fair. and here's the problem with the text messages, it answers one of those questions, or it pretends to answer one of those questions, it suggests that the process is not fair. what i was hoping would happen is that the inspector general would put out a report telling us about everything. there was a bad perception. perhaps they shouldn't have written what they wrote.
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i'm not convinced that the first amendment argument gets us out of this thing, meaning they can write whatever they want when they want to write it. they ought to be more circumspect. but if those texts come out in context, then the i.g. could tell us that the outcome was fair. >> right. >> in other words, they shouldn't have written these things, should have been more circumspect, rachel, but there's no reason to think that the outcome was tainted. and so that's the problem with just releasing the texts without the context for them. >> and without a sense of how this is going to impact the country in an ongoing way even outside this case. >> right. >> ai want to ask some question from viewers that i think are super interesting and also very specific. rita wants to know about non-disclosure agreements in trump world. it appears that anybody who has ever been associated with donald trump has been forced to sign a non-disclosure agreement. can witnesses refuse to answer certain questions to avoid liability as might be outlined in one of these non-disclosure
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agreements? >> i think in the context that we're talking about here tonight, which are federal grand jury investigations, and potentially federal criminal trials, a federal subpoena will trump those ndas. >> okay. and would a person fight that out and have the court decide it? >> likely, yes. >> another very specific question on the president's tax returns. can the special counsel access the president's tax returns if it's germane to his investigation? and who does he have to convince to get them? >> yes, there's a process under the federal rules. there's a statute. we refer to it as an eye order, after 6103, sub i of the code. you have to apply to a judge and convince that judge that there's reasonable cause to believe a crime has been committed, that the tax records are relevant to that investigation, and that you can't get the information that
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you need by any other means. if you can satisfy that standard has been met, you can get an order to get the tax returns. >> does the target of that order find out when that's happened? >> no. the irs would turn it over, otherwise it would compromise the investigation if the target were to know about it. >> and barbara's right, exactly right to the correct paragraph of the statute. but i would add, this is an extraordinarily ordinary thing for white collar prosecutors to do. meaning, it happens all the time. >> and no extra hurdles for it being the president? >> well, it might cause the magistrate judge, might cause her to sort of read it just a little more carefully and take a little more time, but the standard is the standard. the standard doesn't change for the president or for you and me. and so, as a white collar prosecutor, i can tell you, it's a very logical place to start. why? my colleagues all know this. it gives you a ton of leads. where did the money come from, where did the money go in and to whom do you issue subpoenas for
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more information? and so i don't know that they got the tax returns, but i know what white collar prosecutors do when they get tax returns. >> follow the money. >> yeah, that's what we do in news too. one more question before we have to take a break, and it's a very specific question. i think i know what the answer is, but then i talk myself out of it. so i want to ask the pros. jared kushner has reportedly met with mueller's investigators. that's not true as far as we know of donald trump jr., vice president mike pence, or the president himself. does that mean, for all of us observing this, that jared kushner likely has more to worry about than those others do? do prosecutors bring charges against people without ever meeting with them and questioning them first? >> all the time. >> really? >> yes. because lawyers who represent those people don't want to bring their clients in to talk to the prosecutors under those circumstances. if your client is someone who is likely to be indicted, almost nothing good can happen when you bring your client in to talk to
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the prosecutors and have the prosecutors take a free shot at finding out what that prospective defendant's story is likely to be. >> so we should see kushner as more out of the woods? >> under some circumstances, i would say yes, but here the answer is no. there are three people who can't say no if mueller asks pb jared kushner, the vice president, and the president. >> why cannot they not say no? >> legally they can say no, but politically, they can't say no. i think it would be entenable for them to say, i was asked for interviewed by the special counsel, we've pledged fuel cooperation a -- full cooperation and we're not going to go. donald trump jr., the risks may be less, but under those circumstances, you can't really draw that conclusion at the moment. >> i knew you'd know. and i should mention that we know that both the vice president's lawyers and the president's lawyers have met with mueller's team even if the vice president and the president
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we're back with barbara, edward, chuck, all former attorneys and justice department officials. this is from viewer carol. we have a similar question of viewer kimberly. i have heard that special counsel can't indict a sitting president. question, what if the crime was committed before he became president, say money laundering? if the president is guilty of money laundering or any other serious crimes prior to taking office, could he be convicted of those and sent to jail?
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specifically, i want to know, are there circumstances where he could be incarcerated? >> what was mentioned earlier, chuck mentioned, it depends. the statute of depends is where to look or watch. >> money laundering? depends, i suppose? >> five unless they changed it in the statute. >> typically five. >> there's plenty of time for this. >> within the statute of limitations? >> there's still an office of legal counsel opinion from the watergate era saying a sitting president cannot be indicted. it's never been tested in court. we don't know the legal limits of it, but i would submit that bob mueller who has agreed to follow all the rules of the justice department, would probably not indict a sitting president. those that occurred during his administration or before.
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he could be charged after he leaves the white house. so long as the statute of limitations has not expired. >> everybody feel the same way about that? think there will not be an indictment? >> there's a legal opinion and not the in-depth, well researched kind of opinion that olc typically issues and might be that somebody -- and the watergate independent counsel had a different view on the question and to while i tend to think that bob mueller would like to follow that particular advice if that's the advice out of the office i would be surprised given the people on the staff to take another look and see if that's reasonable under the circumstances. >> especially because of that ambiguity of if it's possibility and the issue of the president trying to end the mueller investigation somehow firing people or doing something else, we have a lot of questions about what is a constitutional crisis. people use constitutional crisis as the go-to hyperbole, but what is it? what's the difference of a constitutional crisis and a typical tuesday crisis and the people in this investigation that might rise to that level? >> well, i actually think the question of whether the president gets indicted or not is a constitutional crisis
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because it involves a question of constitutional interpretation and law on which there are differing views, sharply, and well thought out views on both sides. i think what -- if bob mueller is fired, the president, makes a referral to the house for impeachment, i don't know it's a crisis as a political crisis and the president of the united states, his fitness to lead, under particular circumstances is being questioned and congress is being called upon to undertake a particular remedy at a particular time. >> if the president, you know, gets indicted, bob mueller issues an indictment, and the president refuses to acknowledge its existence or its validity, who settles that? >> well, see constitutional crises is decided by the congress and we refer to as a constitutional crisis is a constitutional question. and so far including president nixon, everybody has abided by the rulings of the supreme court of the united states.
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that seems to be a fundamental sort of principle of our country. i hope and even predict that we will continue to abide by the rule of law here. >> standing under that andrew jackson portrait, you know that's what i worry about. >> crises is -- it might be a little bit overblown here. it is susceptible to debate and to resolution by the supreme court of the united states. >> we'll be right back. stay with us.
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maybe? you can leave worry behind when liberty stands with you™. liberty stands with you™. liberty mutual insurance. all right. one last question for our dream team here. paul fishman, i start with you and ask you all the the same question. we know the president, very bright and great taste, watches a lot of cable news. on the off chance he is watching right now, i want him to benefit from your expertise, as well. if the president is watching and could give him a small piece of advice, legal or just advice, what would you tell him? >> lower the temperature. >> what does that mean? >> i would tell him to stop taking shots at the fbi, stop taking shots at the special counsel. it is not going to help him with the investigators and i think it's not going to help him ultimately with the public. >> edward. >> i'd say that bob mueller, rod rosenstein, the reputations proceed them. >> uh-huh. uh-huh. >> barb?
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>> this is a counter intelligence investigation about the country and our fair elections. quit undermining the investigation and fully cooperate. >> chuck? >> to respect the men and women of law enforcement and the intelligence community. these are folks, these are extraordinary public servants and they deserve all of our support. >> chuck, barbara, edward, paul, all eminent public servants each of you and collectively quite an overwhelming dream team here. thank you so much for spending this hour with us. i've learned more than i can recuperate from for quite sometime. really. >> thank you for having us. >> thanks to all of our viewers for your excellent questions. you've now graduated from law school, so go practice law. take it from me. i'll send you a note. we'll see you again on monday. now it's time for "the last word with lawrence o'donnell." good evening, lawrence. >> good evening, rachel. my advice for the president would be, watch "the rachel maddow show" every night to know