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tv   Congressional Oversight of FBI Justice Dept.  CSPAN  April 23, 2018 11:34pm-1:06am EDT

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monday at 9:00 eastern on c-span and join the conversation. our hash tag is land mark cases and follow us on c-span. we have resources and the land merrick cases companion book, a link to the constitutional tenlter's interactive constitution and the landmark indications podcast at c-span.org/land mark cases. tuesday, tuesday, our live coverage of the he visit for the french president begins with the eye rival ceremony at the white house. 9:00 a.m. eastern live coverage on c-span2. continuing tuesday, the joint news conference 11:45 a.m. eastern live on c-span 3. and the first state dinner of the trump administration is 6:30 p.m. eastern live on c-span3. wednesday, president macron will be on capitol hill to address a
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joint he meeting of congress at 11:00 a.m. eastern and live on c-span. snechlt next, a look at the role that congress has in providing oversight of the justice department and the fbi. gerald nabler on the house judiciary committee, former congressman tom davis and a former fbi special agent who once served as a especially assistant to former fbi directors james comey. this is an hour and a half.
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typically think identify with the supreme court. there are two far more powerful ins tuctions created by that document, the presidency and the congress. i have the privilege to work as a lawyer both. it is my mission at georgetown do my best to remind students and faculty and our visitors about the importance of these institutions. to day we'll hear from members of congress on the role of congress in ensuring the faithful execution of the law. i'm lee indicted delighted we h distinguished member of panel
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here's today and experts. our leadoff speaker is representative gerald nadl rechlt, ranking member of the house judiciary committee. he represents the tenth district of new york. he is the member of the judiciary committee. in the past he's been the ranking member of the subcommittee on the constitution and civil justice. he is a graduate of colombia university and the fordham law school. we also have with us congressman tom davis who represents the 11th congressional district of virginia which includes fairfax until 2008. he was chair and ranking member of the committee government reform at the house of representatives. he is director of federal government affairs for deloit and also the rector and of the board of visitors of george mason university and professor at george mason and he is a grat of am hufrt college and the university of virginia school of law. congressman john sarbanes
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represents maryland which includes annapolis, baltimore and montgomery county. he is at the house of representatives and a graduate of princeton university and harvard law school. i'm delighted to have them theer along with a panel of distinguished experts. this of whom teach at georgetown law school. we have with us professor mary mccord who was act ago siftant attorney general and principal attorney general for national security and the department of justice from 2014 to 2017. behave bruce fine and house minority republican counsel in the iran-contra investigation. we have my colleague prefessor david vladic who is director of georgetown center on privacy and technology and expert on litigation involving minority party rights in congress. and finally, we have josh campbell who is now working for cnn as their law enforcement
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analyst but he was a especially assistant to the fbi director james comey and former supervisory special agent. ic that very much for all coming today. let's lead off with mr. nadler. we're going to sit at the table and at the end i'm going to let it out for anybody would wants to ask questions. thank you. >> thank you very much. i'd like to make a few points at the outset. first, oversight of the department of justice and the fbi is incredibly important. especially arguably under preez trump. there are few tassks more important. we flif a time where the doj, department of justice and the fbi are under attack by the president and the congressional majority. it is impossible to recount all of mr. trump's assaults on the department but he has asked why comey hasn't gone to jail. he tweeted that mccabe was
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totally controlled by comey and mccabe is comey, all collusion made up of the thieves and low lives and that much of bad blood was caused by the fake and corrupt russia investigation headed up by the all democrat loyalistors people that worked for obama. this assault is aided and abetted by members of congress. the house intelligence committee released classified information. over the strenuous objection of the department of justice and the fbi which had grave concerns and described the memo's release as extraordinarily reckless. the release and we're talking about the famous nunez memo. the memo's release is blessed by the speaker of the house who called for a cleanse of the fbi. the administration made it impossible for the minority to engage in oversight. last summer political reporter
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had meetings with top officials for various government officials this spring, the white house lawyer told agencies not to cooperate with oversight requests from democrats. it's no wonder we received no substantive response to the more than 60 oversight letters we, that is the democrats and the judiciary committee, have sent to the administration. we now live in a time when the administration is actively coordinating with members of the majority to stymie congressional and d.o.j. investigations. it is by now well known that phoney tip-in tell jens that he was retire tapped by president obama came from the trump white house. president trump made numerous calls to members of congress including senate intelligence chairman asking them to end the russia investigation. houts investigations and the
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oversight and intelligence committees are now principally focusing on unsubinstant yated charges involving the doj and hillary clinton initiated by mr. trump, fox news or both. staunch allies and mark meadows are threatening to impeach rowsen stein. last night chairman black says he plans to issue a subpoena positive there rowsen stein or i say that because they're requesting information which is information that is criminal investigation and justice department guidelines are long standing. can you not surrender that material. while it's involved in the investigation. the results of these attacks and lack of oversight have taken their toll. 15 months into the trump administration we stand on the
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verge of a constitutional crisis. the doj and the fbi become political punching bags with career officials like mr. campbell demoralizing and heading to the exits. corruption and conflicts are ram pant at the hud, hhs and the white house itself. depending on the day of the week, the president is threatening to fire the attorney general, the deputy attorney general or the special counsel. i criticizes individual judges and refers to the press as enemy of the people and calls for political opponents to be prosecuted and jailed. we have done everything in our power to force them to act to the very least to create a actability where they failed to act. today the democrats are issuing an interim report entitled a record of abuse, corruption, and inaction, house judiciary democrats efforts to document
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the failings of the trump administration which details the actions we have taken thus far. among other things, we have sent 39 oversight letters to the majority, the ma rt jo of the committee, nearly all without response and introduced 35 oversight related bills also without response. sent six letters requesting inspector general reports and initiated seven investigations, left 15 briefs and brought our own lawsuit along with nearly 200 members and senators to require the president to comply with the clause, hosted a co-hosted 11 democratic for yumd forums and introduced to resolutions. introduces five resolutions of inquiry and invoked our rights under house rules to attempt to bring relevant legislation to the house floor pursuant to two discharge petitions. markup legislation and committee and bring the committee into executive session. our efforts focused on election
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security and enforcement of federal ethics and conflict of interest rules, breeches of the foreign clauses of the constitution, allegations of obstruction of justice and preserving the independence of the department of justice among other matters. committee democrats have hoped to initiate action by writing letters to the administration and house leadership holding and participating in forums forcing votes and resolution of inquiry, releasing reports and introducing legislation. unfortunately, nearly all the letters sent by our members have received no response and all of our resolutions are rejikted by the majority. the silence speaks to an administration run amok and majority willing to turn a blind eye to misconduct. the oversight efforts helped lay the predicate for action if democrats were to retake the house majority in the fall. notwithstanding the best efforts in the minority far more needs to be done immediately. i believe congress needs to take several common sense actions
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right now to protect the integrity of the department and help restore accountability to our government. one, pass the special counsel independence and integrity act which is bipartisan in sponsorship. the legislation will be marked up next week and the senate judiciary committee today and is over 100 sponsors in the house. it is not a cure all but will provide safeguards to make sure the special counsel is not subject to arbitrary or unjustified firing. we got out of practice of doing oversight. our committee held no oversight hearings on the criminal division, none for the antitrust division, none for the civil rights division, and none with the secretary of homeland security. it also goes without saying that any administration needs to respond to oversight requests of both parties whether they're in the majority or not. three, committees should vote on subpoenas. when i came to congress it was
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unheard of for chairman to issue unilateral subpoenas personally. it is the rule not the exception preventing members on both sides of the aisle from being able to participate in this critical oversight function. four, limit hypothetical assertions of executive privilege n this congress witnesses have been widely per plited to avoid answering questions merely claiming that the president might some day somehow want to assert executive privilege. there is no effort to reach an accommodation to protect congressional interests and no effort to force the president to actually assert the privilege or produce a privilege law. in essence, accepting the executive privilege provides current and administration officials with a get out of jail free card and renders the administration completely impervious to congressional oversight. five, enforce rules limiting communications between the white house and the department of justice. current white house policy limits communications vofrg doj
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to matters involving national security or those defending administration policies. there have been numerous documented instances when this policy has not been followed. including when the white house chief of staff attempted to convince the department not to challenge the nunez memo. i suggest that the white house counsel learn to enforce his own rules or find a new line of work. one of our nation's founding principles is that no person, not even the president is above the law. we rely on an independent law enforcement function within the department of justice to preserve that principle. in my view, that principle is a grave risk today not only because of the misguided actions of the president but because we in congress have not acted to protect it. for the good of our democracy, we need to do everything in our power to protect the integrity and independence of the department of justice and the fbi and we need to dos so soon as possible if we're going to hold the president accountable, if we're going to show the president more than anyone else is above the law.
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that is essential if we're going to maintain democratic government and constitutional norms. thank you. >> thank you, mr. nadler. >> it is very nice to be here with the member of a committee i chaired. it is government and oversight and now oversight and reform. we're the major investigative committee in the house. we were created back in the 1950s from a series of committees to investigate independent expenditures that went awry, consolidated it into one committee and they did it here because the feeling was that the arms services committee got too close to the pentagon, the ag committee got too close to agriculture and they needed an independent group to come in kind of and oversee things where you might have had a really close tie otherwise between the committee members and the kepts that they we department that's they were supposed to regulate under. i also served as house republican campaign chairman.
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i will tell you what i've seen over the last 20 years is we evolved from a balance of power system which our founders envisioned into parliamentary behavior on the part of vote aernz on the part of members when they come to washington. what i do mean by that? i mean today legislative elections are generally about the party and not the person. they're about to leadership all politics is local really doesn't apply. but it means when members comes to congress, they behave the same way. they behave like it's a parliamentary system even though the house should be an independent branch. the minority party no longer acts like the minority party, they're the opposition party. it means that the majority party instead of being independent branch overseeing the executive branch where the leader is in charge tend to protect their quarterback because their fortunes are tied to the success or failure of that particular president. so the end result is when you have the opposite party controlling congress they tend to overinvestigate wlchlt you
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have one party of a unitary government they tend to underinvestigate. its no the what the constitution envisioned. it's not the way it's supposed to go. my experience going back to the '90s when we investigated some of the clinton campaign finance he regulations over -- at that point people had abused, they took the fifth or fled the country. republicans though -- they kind of overdid it during that time. the democrats take control under bush. they tend to overinvestigate at that point. and yet when you have unitary government, you tend to underinvestigate because you want to protect your own administration. i will just say to offer you perspective, when the democrats control the congress, they issued a contempt citation. these are become routine ping-pong battles that don't serve anybody well. what you need is something we tried to set up with henry
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waxman where we try to do things together. we did a lot of investigations of the bush administration. my party's administration on a number of issues particularly contracting in iraq, the abramoff investigation, things that my administration was uncomfortable with that needed oversight and other committees were unable to undertake. we did the steroids in baseball and changed the game in terms of the use of performance enhancing drugs in major league sports. we like to think we changed the landscape on. that but it needs to be done together. i think in this all too charged partisan atmosphere today, it's a failure. i hope we get the golf. i know we've had these discussions. waunlt to try to work with your minority and work to make congress an independent banch on branch once again and not an appendage for one party or act like the opposition party on the other. >> thank you very much. mr. sarbanes is next. i just want to warn you, he has another engagement. we were luck dwroi have liy to .
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if he runs off during the expert panel, don't blame him. >> thank you for having me here. you have a very distinguished panel here today. i'm going to be brief. i do want to salute jerry nadler for work he's doing and leadership he is exercising and for all of the perspective he just brought to you. and to tom davis, i'll just say we miss you. so anyway, the kind of measured oversight that people like tom davis brought when they were in office is something that is in desperate need right now. want to speak on a couple things. i am serving again now in the oversight and government reform committee. i had the opportunity to be on that committee in 2007 and 2008 when it was very active under
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the leadership of henry waxman. that was the last two years of the bush administration. i got a sense of the full tool kit that can be exercised by that committee. and i also am serving as chair of the democracy reform task force in the house caucus which is looking at all the ways we can try to strengthen the democracy put in place a set of robust reforms that will make government more accountable to the people where i think there is deep frustration on the part of the average citizen about whether their voice is really heard and accounted for in our politics, in our government, and in washington. on issue of oversight, i think that the current leadership in the house certainly those who hold the gavel are kind of
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suffering from a condition of like oversight vertigo. and what i mean by that is when it comes to the areas where they should be careful about the oversight crossing in to interference with what should be a certain amount of independence, i think that they've crossed that line. and i think the best example of that as was being described by congressman nadler is the way they've approached and treated the mueller investigation where the daily attacks on the investigation are really, i think, designed to undermine the independence with which the justice department ought to be able to carry out its responsibilities on behalf of the american people. so there's an impulse and
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instinct and i would argue maybe a campaign to do too much oversight/interference with respect to that area. on the other hand, as was also mentioned, there's a lack of interest in doing the kind of oversight that we need with respect to most of the other executive executive agencies in our government. where we have seen tremendous ethical lapses, where we've seen special interests conflicts at play. and, yet, there has not been an appetite, an institutional appetite to get behind that and investigate it. again, on behalf of the american people. the argument that i make and i think many of my democratic colleagues make for why it's important for the democrats to get the gavel back in the fall
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is not because we're then going to embark on some aggressive subinstantive democratic policy agenda, because, frankly, unless we had the white house and the senate at the same time, that wouldn't be a fruitful exercise. the reason to hand the gavel back is to restore the checks and balances that we need in our constitutional system. and unfortunately, i think that the current majority and i'll just speak to it in the house, is not exercising the article one authority that congress is supposed to have as a check and balance on the executive branch. that's how we were set up. and if that responsibility is
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advocated, then you leave expose the public interest at the end of the day. so the reason that we're seeking the gavel and i think the reason we ought to be given the opportunity to hold it is to try to restore those very important checks and balances and maybe get away from that vertigo, that oversight vertigo i described you to a moment ago. i'll close with this. it's very important i think for people to understand that robert mueller, the special counsel, is the representative of the people's that judge the system. he's your guy. n. the justice system. it's easy with all the rhetoric that goes back and forth to come away with the impression that bob mueller is some insider guy that, you know, he's my guy or he's nadler's guy or somebody else sort of in there pursuing this investigation. no. he represents the justice system that belongs to the american
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people. and when they come from mueller, they're coming for you. they're coming for your justice system. they're coming for your representative in that justice system to make sure that your interests and the interests of the people and public are protected. i think that's really important to keep in mind. so thank you all for the opportunity to be here. i yield back. >> thank you, mr. sarbanes. i think we should give them all a round of applause. okay. thank you. and now we're going to hear from some folks who have been on the other side of pennsylvania aefr inside the justice department and inside the fbi and others experts on the congressional oversight process. we'll start with professor mary mccord, acting assistant attorney general and attorney general for national security. she'll give us her views about what's going on at the current time. i do warn that you professor mccord also has to be on a phone for a hearing. she may duck out a little bit early. we're lucky to have her here today.
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>> thanks, professor. thanks for inviting me and putting this together. it's very timely. i just want to make clear from the outset that although i served in the leadership roles at the national security division, i always served as a career official. so before my three years at the department of justice. deputy at attorney general and is acting assistant attorney general, i in d.c. andrs eventually became the criminal division chief. i have served under administrations of both parties for 23 years and ended my career stayed aftering the transition because i was career and i had hoped to stay long enough to see someone new he nominated and confirmed for my position, in which i was acting. course that didn't happen for many, many, many months after i left. the perspective i bring is not from a scholarly perspective, it -- it is from my own
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experience at the department of justice. somerday, as we prepared remarks, the professor asked us to consider the presidents relationship with the -- the president's relationship with the department and the bureau and whether it is in line with established norms and practices. starting with the president, there is nothing normal about considers hisdent relationship with the department of justice and the fbi. whether it is through the orets, public statements, comments of surrogates like sarah huckabee sanders or sean
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sean hannity, his view of the authority he wishes to have over the department in terms of inually playing a role individual investigations, which investigations should be started, which investigations at should be ended, that is not normal. every administration since watergate has had strict rules and policies that govern the exchange of information between the white house and the department of justice. and while it is perfectly appropriate and acceptable for the president to look to his political appointees at the justice department to carry out policy changes, and we have seen that in this administration, you might agree, you might disagree but we have seen it in emphasis on certain civil rights investigations, including into police departments. you see in changes in policies toward immigration enforcement, changes in policies toward enforcement of drug laws and sentencing practices.
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those are policy decisions that are perfectly appropriate for the president to look to his , hisical appointees politically happen appointed cabinet members and lower officials to execute those -- politically-appointed cabinet members and lower officials to execute those. the dojations between and fbi are about specific investigations, not communication with the white house about -- not communicating with the white house about specific investigations are steps that might be taken in any investigation, or charging decisions, or play decisions. that is for good reason. i think it's probably obvious to people. at thee part, to look question of our norms, our standards off the table right now, i think they are not. again, i don't think the
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president is doing anything that is normal for a president to do when it comes to the relationship. but largely because of career officials in the doj and fbi, some of whom are now political appointees but had been career officials. rod rosenstein was a career attorney for many years and is now an appointee. those folks are familiar with these concepts and i think have tried very hard to hold on the line. i think that what we may see intent to involve himself in investigations, i think for the most part we have seen, because of the resolve of career --icials, that that attend that that intent has been thwarted. that doesn't mean i don't think there has been harm done by the tweets, the public statements, statements that the president does have authority over
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individual investigations, or worse, suggestions that doj and fbi are corrupt and shouldn't be trusted, and the tax on the institutions, these have long-term consequences, short-term for sure and i think ifg-term consequences, even there are people holding the line on actually preventing involvement in individual investigations. and we have seen this. decisions areded going to be looked upon suspiciously. if doj comes out with a decision in a particular investigation that the president has tweeted about, and let's assume it's consistent with what the president has tweeted about, they are going to get attacked or having done it just because the president said to do it, even if there were all kinds of good reasons to do it. so it denigrates the credibility of legitimate law enforcement fbi,ions at both doj and may be by career officials,
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maybe even coming from the bottom up, but it is going to be hard to explain that because the appearance may look different. this also erodes confidence in these institutions. there is a lot of things i been unwilling to speak about since leaving the government, but one thing i have spoken about is the importance of not denigrating these institutions that have -- they have flaws and failures historically, both the bureau and department of justice. they don't do everything right. there are many reasons why we need congressional oversight and why they need to become still he looking at their own practices and doing that are, but they -- aredoing better, but they institutions that have fought for justice for decades and erosion and confidence in those institutions is significant. turning briefly to congressional oversight, when i think about the norm question, i think about
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when something quits being a norm read i think that might've happened some time ago when it comes to congressional oversight. i think the purposes of congressional oversight are well accepted and not controversial. there is good reason to ensure the department and the bureau have the legal tools and legislative authorities they need in order to accomplish the legislation,icular and a good reason to engage in oversight to make sure those tools are adequate, make sure they are not being abused, check for waste and fraud, those things that are not controversial. but this can only be accomplished effectively if it has been done in a bipartisan way. and what i think has happened, and it has happened over the last decade or more is that there has been a default meant t of thea devolvemen
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use of oversight for partisan means. s memoample is the nune which the representative nadler referred to. this was a memo that was derived from staff attorneys who had listened to a lot of testimony informationfor m facilities and wrote a memo about information collected by christopher steele and how the russian investigation impacted that investigation. release of that memo, as representative nadler said, was
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highly objected to by the bureau and department because of the sensitivity, sources and methods that could be revealed. so what happened is, chairman thes went around department, went straight to the white house, was able to get the president engaged, was able to get a review for classification and that memo was released and rejected for. and at the time it was rick -- was released in redacted form. and as we know a minority memo was declassified and that was put out. what we then have is an inferior product that i am not sure has done any good in advancing any legitimate purposes. memos, two partisan heavily redacted, without any recommendations for where we go from here. i don't bring this up to get into the russian investigation. it is an example of the
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partisannt of true oversight that is valuable, into something that doesn't further the objectives and in fact, certainly leads to appearances of attempting to interfere with the workings of the doj and the bureau. thank you. now, mr. fine, associate deputy attorney general during the reagan administration. i will use the quip from "paradise, lost, it dazzled from every page but none wished it was longer. [laughter] he said the worst crimes were dared by a few, will buy more and tolerated by all. so things when they get tolerated by all, the system will collapse. the problemsress
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of congressional oversight that are more long-standing than president trump read it had been deteriorating for many decades for a variety of reasons. it was wrong when congress let the independent counsel statute lapse. borne out ofas watergate, where the executive branch always has a conflict of interest investigating itself, especially those higher up. and they said, they have independent counsel, they will get out of control, and they will investigate to much. there can never be to much sunshine on government officials. they are stewards of our liberty. and if you don't want to be above suspicion, like caesar's wife, don't be in government eerie the independent counsel statute needs to be restored. -- thencil is independent counsel is chosen by
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a three-judge court and we don't end up with the issues like mueller. in some sense it is a substitute for congressional oversight that hasn' turned in vertebrate because congress is so partisan. you can give sermons on amount over and over again, you shouldn't be partisan, but it isn't going to make any difference to members of congress. you are trying to change the dna of the institution. good luck on that. therefore, in addition to the independent counsel, who should be given exclusive authority to pursue contempt citations in congress, think how foolish it is. you vote contempt for an executive branch official for failing to respond to a question. do you really expect the justice department to prosecute someone in the executive branch? it doesn't happen. maybe you get a civil action, like what was done in regard to josh bolten and harriet miers. litigatetwo years to
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and by that time the whole issue has gone away. nobody cares about anymore. that is a huge effect in the way contempt power is now employed. it is simply a scarecrow. another method that can be utilized to force the executive branch to respond to requests for information, which is the essence of oversight, is instead of criminally prosecuting, the recalcitrants a witness. -- you$50,000, and it is us $50,000 and it is coming out of your personal account, not from the executive branch. toyou have teeth and power extract information from the executive branch. woodrow wilson wrote the informing power of congress is more important than its
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legislative function. sunshine is the best disinfectant. that is how watergate was broken. that is why i think the crippling of oversight is so harmful to our dispensation. it has led to almost limitless power in the executive branch. it does whatever it wants to do, hides whatever it wants to hide, tells congress and the american people classified, and if you knew what we knew you wouldn't have any problems with it. for instance, the president decides on his own. what characteristics enable him to send a predator drone, vaporize anybody in the world? do we get to know what the standards are? no. they just disappear from the face of the earth and people shrug their soldiers -- and shoulders. so that's another rule change, the need to have congress fine
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members. there should be a joint congressional committee on separation of powers. it ought to be the strongest committee, devoted 100% of the time to capture power from the executive branch and to review statutes proposed right the executive branch. how do they encroach on congressional authority? how can we strengthen congressional legislative power which is supposed to be article one because it is supreme? branch doecutive whatever they want, we think about congress being the legislative branch but the executive branch issues 75,000 rules every year and congress has a handful at most. who really does the legislating? the executive branch. so congress has to review these and take these measures that restore legislative power. unfortunately, members turn away from voting on hard decisions. they don't want to vote on them.
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they vote on tabling a piece of legislation, the executive branch needs to do it because we don't want to vote on it. and that is something that can only be remedied by you. voters have to go up to members, i'm not voting for you unless you accept responsibility. the craziest thing is the war power. the war power as understood by the framers was clearer than any other provision of the constitution, expect -- except maybe 35 years old to be president. everyone said the only institution that can take us from a state of peace to a state of war is the congress of the united states. we don't trust the presidents. he has a conflict of interest. if you bring a war, he gets the monument, he gets the footprints in the sand of time, he gets the glory, that's all this shows. what legislative person has a monument because they voted for a war? , it doesn't happen, and get the whole provision is ignored,
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wiped out from the constitution. underscore, although there is alliance share a focus on the current occupant of the white house, the dysfunction is more profound than that and needs a more sustained repair job than just mr. trump. david now on to professor vladek. david: let me join my colleagues in underscoring the importance of congressional oversight. vital and balances are and when they are not present mischief takes place. i have been subject to uncomfortable oversight hearings and congresspi├▒ata looks like a bunch of 12-year-olds with bats. 's job.t is congress
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we need to think about oversight and how it is taking place these days. i have at times been an advisor to ranking members and one thing i have done is help operationalize a 90-year-old statute called the seven-member that confirms certain rights on minority members of the oversight committees of congress. the statute says an executive agency on request of the committee on oversight and government reform of the house of representatives or any seven submit thereof, shall any information requested of it relating to any member -- relating to any matter of the jurisdiction of the committee. the statute was enacted in 1928 128 separate reporting statues that required agencies to submit annual reports to congress on a wide
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range of issues. this statute was largely unused until the early 1990's. theaps it was gingrich, contract on america, that kind of divisiveness within congress . but until then there was relative cooperation on the oversight committee. minority members of the oversight committee would start seeking information from executive agencies and almost invariably, they would get the information that they requested. that broke down in the early 2000's. in 2001 i filed the case for henry waxman and 16 other members of the oversight to yeare, to get access 2000 census data.
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the raw data must be used for redistricting purposes but the data is used for all sorts of things including allegation of federal grant money. the administration would not make it available to minority members of congress or to states, so we sued. we won in district court and ultimately the material was released and a companion case was resolved in our favor in the ninth circuit. in 2004 we brought a case, waxman versus thompson. this was an effort to get access to the chief actuarial's estimate as to what the medicaid-medicare prescription drug act would cost. the chief actuary' estimates were $400 billion to half $1 trillion more than the administration claimed. case in the district court and won the
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election in 2006 and the documents were released thereafter. currently i represent 17 members of the house oversight committee, seeking access from the trump administration. donald trump and his children entered into a lease with the general services administration to renovate the old post office on pennsylvania avenue into a hotel. who lease says that no one is an elected official of the government of the united states may benefit from the lease. mr.r to taking office, trump made clear that he would invest his interest in the hotel. he didn't. , gsaow along the way changed its interpretation of the leased to permit mr. trump to continue to benefit from it. so we are seeking documents relating to the lease. -- we waiting argument are awaiting argument and decision.
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the seven-member rule has historically been a powerful tool of minority members of the oversight committee to get information. we will see what the court does this time around. with bruce about some structural issues with oversight. we haven't talked about this, but when there are different the senate control, in one party and the white house in another, congress as a whole has a terrible time getting subpoenas enforced. in order house rules, to get a congressional subpoena must get the u.s. attorney in the district court for columbia to bring action against an executive-branch official. just think about this. the u.s. attorney is going to sue an official at his or her own party. it doesn't happen.
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so when there is a difference between the house and the senate and the president, getting congressional subpoenas enforced is a terrible problem. that needs to be solved. i agree with bruce about the impending counsel act. i would not have reauthorized it thehe same form it was, but difficulties robert mueller and the deputy attorney general are having to date make clear that we need an independent counsel who is truly insulated from arbitrary rule. after bork took office, archie cox was fired. there was a lawsuit, nader versus bork, holding that the dismissal of cox was in violation of regulations and a violation of law. the same regulations are essentially in effect.
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so robert mueller, if he were fired, might well have a cause of action in court. but we need to fix the independent counsel. the last thing i would say is, we need institutions congress ig draw on, other than the or the gao, to help with investigations. one thing that is difficult about congress is that it is so split by committee by committee that there is no overarching wait for congress as an entity to even understand what it's sister committees are doing. the needs to be some backbone, some further support for congress to engage in systematic oversight. thanks. you, david. now josh campbell, former assistant director to the fbi director. >> i would rather be somewhere else right now, i didn't say anywhere else right now, but i would rather be somewhere else
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rather than sitting here talking about the incredibly negative effects that the politicos ideation politicize asian -- ourticization of institutions, the doj and the fbi. the fbi right now is an institution feels under siege. but yourself in the shoes of the net the eye employee -- in the shoes of an fbi employee. seeing to your left, and an intelligence committee that continues to politicize intelligence. you look you right and you see a chief executive who is never failing to provide an opinion on the institution, the fbi. and even looking across the otreet to maine justice, -- two justice, there has been
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silent in defending the men and women of the fbi. someone like me who recently made the transition from the fbi to journalism, i would constantly for my colleagues about how demoralizing it is as an institution. this if you worka for a company, and you went to work every day knowing the ceo was bashing your company, bashing your decisions. the fbi men and women can take slings and arrows of every kind but think about the practical aspects of what these attacks have done to the fbi. it comes down to this. now in journalism, my job isn't it defend the fbi. can defend itself, but my job is to explain the fbi and explain why these attacks have such a corrosive effect. it's very simple or it might fit in a tweet. an fbi agent knocks on somebody's door and needs
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assistance in solving a crime, the willingness of that person to assist that agent directly correlates with their view of the agency. the agent and agency is trustworthy they are more likely to assist. if see the fbi as another corrupt institution of government, how many of those people are going to assist? when i was an agent i did a lot of work overseas and i can talk when instance in particular where we went to meet a human source who was providing information about a very sensitive and very imminent terrorism matter. trains, planes, automobiles to meet this person and we asked him, why didn't you just go to your own law enforcement here in your own country, why call the fbi? our law enforcement agencies are corrupt. you're the fbi. we trust you. and he provided critical information, and it was worth it. i wonder how many of those
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people are going to reach out to the bureau and ask for time to it is thisormation, corrosive effect that i think is really long-term. nothing i am saying here today is partisan, because as somebody and who isthe bureau now in journalism, my job isn't to talk about parties or which side is right or wrong, but to talk about the practitioner emma the practical aspect -- the the practical aspect and the impact. and when you looked with that first memo did to the men and women of the fbi, i was there for 12 years and i can't remember any type of congressional action that caused as much damage and caused as much as i do. and it did so for a number of reasons. the men and women of the fbi are not political, they check politics at the door so it is not a republican or democratic thing but essentially the bureau
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and the intelligence community was being held to a different standard. after the iraq war there was a wmd commission that basically it was dictated that the intelligence community before issuing any type of intelligence report, would meet a certain set of standards. and that is, any intelligence product had to be timely, a political, and it had to include timely, viewpoints -- apolitical, and it had to enclose opposing viewpoints. but when we looked down the street in congress, we had an report that upheld none of those standards. so it has a negative impact. the men and women of the fbi are whenrone to hyperbole, but
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i sit here today and tell you the alarm needs to be sounded, and it is for that very reason, that this institution of justice is under attack right now with no end in sight, these attacks have negative consequences and long-lasting impact. when you tech the organization, you attack bob mueller and his team, and they give your short-term benefit. it may allow someone to discredit an investigation and those doing an investigation, so when the conclusion is reached they have artie caused doubt within their constituencies. but the long-term damage to our system of justice is so start and dyer and i invite we have panels at this that are calling it out. >> thank you, very much. give our panelists around of applause. [applause] now i would like to open it up to the students.
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please take a crack at it >. >> crack at i'm a first-year lat here. [laughter] i want to commend this excellent panel, but when i look at it i can't help but thinking it looks like the problem of executive thateach is a problem affects white males, largely white women and doesn't have any effect on racial minorities whatsoever. that seems wrong to me. when you remember when has happened, we are talking about oversight at the department of justice. the department of justice that has dramatically pulled back on civil rights, civil rights enforcement and antidiscrimination. is that the attorney
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general is, well i will just say it, jeff sessions. [laughter] that theeason is president, the person who appointed jeff sessions, is someone who ran on a dog-whistle platform of attracting voters who are going to respond to the message of, let's make america white again. given that racial discrimination and the sympathy for racial discrimination continuing among a significant segment of the population, seems to me at the of the executive overreaching at the department of justice. shouldn't there be congressional legislative oversight hearings on the degree to which the department of justice is engaged in the unconstitutional practice of racial discrimination? >> thanks, professor. [applause] i think it is, without
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question, that this administration was elected by a , nott sentiment feelings just anti-black, but anti-immigrant sentiments, anti-muslim sentiments, anti-semitic sentiments, and that is effective life. that happened. we see it. which areir policies, not friendly policies to racial minorities, obviously. react --ress is not in is not going to react negatively to that because this congress is produced by many of the same forces. i would make a distinction between policies that are based on racial discrimination of one sort or another, which are noxious and which you see all over the place, and the corruption of our justice
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department and the fbi, which is a different question. i don't think the corruption or pressure on the fbi and justice department right now is racially motivated. it is politically motivated. it's politically motivated by an administration and executive the western brook no opposition, wants to do thing its way, and never mind the constitution and never mind legislative power. that is very dangerous. we have not seen it in the same way or the same willingness to break norms. foralways have to watch out the aggrandizement of power of the executive branch. the fbi has not been guilt was over the years. it has been good in recent years but a remember, if you study your history, i don't think too many in the audience will remember him a but operations of the fbi during the vietnam war
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against war opponents, j edgar depredations against martin king and other civil rights activists, those are problems with the fbi. they were expressions of the problems of larger society and we larger cleaned up the fbi from that. now, they're trying to subvert the fbi and justice department to political will to subvert justice to a political, to political goals. and that is very dangerous. >> i think there is a difference between congressional oversight and just the policies made through the electoral process. with regard to unconstitutional actions, unlike many executive actions, our courts are available to make claims of sexual discrimination or racial discrimination. so it is not dependent congress dependent on congress
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alone to have these norms enforced. so i just think it is the result of elections. if you elect a racist government you are going to get racist policies. sure i buy the questioner's premise that it is a racist government. there are people that have a different worldview and perspective going into this that are not necessarily racist. i keep hearing that a republican racist is the most popular politiciandifferent worldview ad perspective in south carolina, e is an african-american senator who happens to be very conservative. and i don't buy that it is unconstitutional necessarily, because you disagree with you read right now and the court of appeals you have a majority of democratic appointees, so you are going to get a fair hearing when you walk in there, at least at some level.
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i am a rector of a university and i think we don't spend enough time looking at other people's perspectives and we are too quick to label them. in my neighborhood, if somebody put up a trump sign it would have been a neighborhood. we had a neighborhood association where the board asked somebody to take down a trump sign as was offensive. but when you go up 40 miles, people were making their own trump signs and have their own worldview. one problem is single party districts but the other problem is this, we all listen to news and we get feeds that validate our worldviews on this. i would say there is a wide body of opinion that would disagree with you, people that would view the world differently, but i would not necessarily be quick to call them racists. >> how do you react to mr. trump calling mescaline -- calling
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mexican immigrants rapists? the president of the united states is a symbol. to defend hisng campaign rhetoric, which i think was over the top. but i think the other side has used a lot of identity politics through time. >> the question does sort of get into the fundamental point of this panel, which is what kind of rights to minority members of congress have to engage in oversight? the toolsm is that, minority members have our meager. so when you have a congress that is the same political party is the president, oversight simply stops. intolerable and a government which depends on some degree of oversight to have the kinds of checks and balances the framers of the constitution intended. that is the problem. >> that is certainly true in the house, because under house rules
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it is a majority rule. democrats have two rights. you pick up your paycheck and you make up a quorum. the senate is very different. one member can hold up a nominee. you have backed up over 200 nominees, many without any problems, no qualification issues, just because that is a tool the minority has to try to leverage it. i think you want to differentiate between that. and the senate if you notice has been a little more bipartisan because of what the minority has. tore are people crying out make the senate more like the house. i think that would be a mistake. they don't have subpoena power but they have a lot of leverage to hold up a lot of things that are important, to get the point across. >> i don't disagree. i do think the bandwidth that a member of the senate has, doesn't compare with the bandwidth of the house.
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so the detailed kinds of investigations you did when you were in the house, there was no real counterpart in the senate. the authority, it wasn't that they didn't have the legal authority. it's just that they choose to do weightier issues. >> can you go to the mike, please? high, third-year law student. it is my understanding that the committee, the only committee that requires a bipartisan effort to move an investigation forward is the ethics committee in the house? >> that's correct. >> do you believe having more
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bipartisan requirements like that in the other committees would help the process and be more bipartisan? or would it prevent more investigations? >> it took them a year before they could even agree on a meeting of the ethics can meeting -- the ethics committee, it's that bad. it's working better now, you have outside groups that can refer issues in. we have tried to revamp it. we might have overdone it, but you are right. the question for congress is, are they going to become what the framers wanted them to be, an independent body, check and balance, or to make this a parliamentary system that it wasn't designed to be. right now you basically have a parliamentary system. this wasn't envisioned. i don't think it is working very
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well. i didn't see myself in that role in congress and the leadership couldn't take me out because i chaired the campaign committee and had a lot of support within my caucus. but it is the exception to the rule and because of the pressures now, in most congressional districts today, the only race that counts is the primary election. the general election is a constitutional formality, so what ends up happening is that members cater their time, their tension and their votes to their primary voters who are really a thin ideological slice of the electoral pie. liberals and conservatives have passions and moderates have lives. in the end, politics belongs to passion and it is polarized for any number of reasons. it would certainly be better to try to do some things together. things, the republicans are going to protect their
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president, that is understood, but there are things you can work together on. you just need to understand everybody's rules. henry waxman would come after us on some issues, but we didn't let that get in the way of other things that needed to be done, oversight of programs that were going wrong, oversight of government contracting up had gone amiss, those types of things. the problem with what tom is saying is that it depends on the actions of individual members of congress. it is not institutionally-based and it is not power-based. he is right about his districts, and i don't know what to do about that. it may be inevitable at this point. certainly we can reform the gerrymandering system. get rid of that. but there is natural gerrymandering to, residential sorting, although gerrymandering makes it much worse and i hope the supreme court declares it unconstitutional.
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cases pending. but second of all, you have to be willing to oppose your own party, to oppose your own president on certain things and work with opposition members. the judiciary committee is probably the most contentious ideological committee in the house, for two reasons. number one, the subject matter hot buttonbefore us, ideological issues, choice, gay rights, it was contentious for a long time, and various other things. second of all, when someone got elected to congress for the first time and met party leadership for the first time and said, what committees do you think you might want to serve on? if one of the answers was the judiciary to many, if he came from a safe party district they would say fine but if they came from a competitive district they would say, you don't want to do
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that, you don't want to cast all those hot-button votes. why a he goat somewhere -- don't you go somewhere safe like the transportation committee? so we tend to get the most conservative republicans on the most liberal democrats on the judiciary committee. we can work together on some things. they don't get a lot of publicity, but we passed a bill collins, ao which very conservative republican from georgia, doug collins, a bill on trade secrets, worth billions of dollars to the economy. we just negotiated bill and not the most stimulating topic that very important to the economy, the firstnsing, and major rewrite of copyright law
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in 50 or 60 years. so, something you can do but on it isf the weighty issues very difficult. tendency is a natural to support your administration and oppose the other one. i would say we have to give more rights to the minority party. and i mentioned in my opening statement, the idea that you could issue a subpoena just from the chairman. when we adopted committee rules it the beginning of the session almost two years ago, that was supposed to be a rare occurrence, when you couldn't get the committee together and you had to do a subpoena right away or something. now it iseard of, and regular. you ought to have to debate the subpoena and we ought to recapture power and enforce subpoenas and enforce testimony. that's a question of the power of congress.
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in terms of the power of congress, had the power of civil liberties, generally. one of the greatest threats is something no one even talks about, the state secrets doctrine, were the thenistration -- where administrations of both parties, where you sue in court to indicate your right for something or other, whatever it is. because any right you have is ultimately only vindicated in court, and whether that right is constitutional or statutory or customary, it has to be vindicated in court. and if the administration can come into court and simply say, that case can't be heard because it would involve a state secret, case dismissed, which is basically the law now. sponsored, for years now, state-secrets legislation to change that. we passed it out of the judiciary committee, but it
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couldn't pass the intelligence committee, bipartisan problems. we just had a big debate over section 702 of the fisa act in terms of surveillance, and without getting into details, we voted it out of the judiciary committee, what i thought was a very good deal. it wasn't good enough for the civil liberties union. some of the others thought it wasn't good enough and it was reported out on a bipartisan basis. the intelligence committee reported out on a bipartisan basis, a terrible belt that didn't go nearly as far as we did. the question then became, were we going to enact the judiciary committee bipartisan bill the protected civil liberties, or the intel committee bill that didn't? latter,he
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unfortunately. so it is not always partisan, is the view point where you are coming from, judiciary versus and tell -- versus intel in this case. one of my biggest criticisms of the republican chairman of the judiciary committee has nothing to do with partisanship. in my opinion, he has not asserted enough effort to protect the jurisdiction of the committee against other committees. i was thesubpoenas, only member of the house that had subpoena power but i would never make a move before talking to henry waxman. he understood i had to do it. but i didn't issue that many subpoenas. predecessor issued 1000 subpoenas, dan burton.
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>> he was crazy. [applause] >> i subpoenaed about 12, and several -- and subpoenaed mayor parties secretary of defense, my own party's secretary of state. is also a third factor that creates these single-party districts. it is always level of controversy when i raise it, it is the voting-rights act. when you pack minorities and districts your bleaching the districts around it. republicans from 22 seats in the south and 92 and it brought black democrats from four i think, to 22. the housep south, in today, all you have in the house are white republicans and black democrats, and no need to talk to the other side because they play no role in that play no play no role in the
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nomination process. we have a republican member and a democratic member and to the question of why partisan investigations, what are your thoughts on the idea of these intelligence memos? when the newness memo came out -- when the nunes memo came out, when representative shifts who is might -- representative chiff, who is my congressman in california, we understand that you are trying to correct the record, but we are good. let's move on. we don't want to do more ofchify congressman in our -- don't want a more of our intelligence out there, especially these highly-sensitive reports.
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if you lookoughts back on those two memos, if we had adhered to the process where anything going out the door has to be signed by both, would we have seen that selective use of intelligence or would we have had a fuller picture from both sides? nunes wanted to come out with talking points for the base so they could defend the president. democrats wanted to correct the record. i think that is the wrong way to do oversight. it cheapens the intelligence and the institution. house and congress should be an independent body, a third-party with a check and balance on the executive branch, not an appendage to the executive branch. when you act that way you are being an appendage to them. you are destroying what congress was intended to be. the senate has held it together a little better, i think. these are highly charged
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partisan times. but in the fbi, if you look at james comey and his deputy and thinkhing around it, i they put themselves in the middle of a storm they didn't need to be in. it's too bad because it is a great organization and we rely on them but over broadly, i think the degradation in the minds of the american people about institutions in general is dropped and i think that is very dangerous. the memo about russia, looking at pfizer and when it was inappropriate elite -- it's, itiately used, >> i think it was bad policy.
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>> it was designed to miss create that something was done. minimum -- the fifth memo simply rebutted it. there was a third memo which came out in between. it was much more limited in scope. i thought one of the purposes of the nunez memo was to say look at the use of the fight is a memo, it was terrible, which it wasn't.
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it was irregular, which it wasn't. one of him was -- one of them was signed off. attempt tohis was an undermine rosenstein. there was some basis for firing him and getting rid of the special prosecutor. my memo was designed to point out that rosenstein did nothing improper. >> i think you have the underlying problems. what you identified is the members feel their loyalty to more imperative than loyalty to the constitution, even though they only take an oath to support the constitution. >> not in the primary. >> that is how they act up there. depending upon the political affiliation of whoever is in the white house. you are for invocation of
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executive pillars or not, you want to go to war or not without any congressional involvement. that has to change. there is not loyalty to the institution. tom davis is the exceptional person on that. >> there are plenty of people who can see their own institutional sense. they may agree with it. most people in the party of agreed with it. it becomes circular. not necessarily defending the administration. i would argue the current majority -- i would argue two things. the current administration has gone way off of the rails constitutionally and in the terms of president. the current majority has a duty to call it. it hasn't. have beenhat majority very silent. parts of it have been complicit
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in supporting whatever the administration may do against constitutional norms and so forth. the large part of the republican party is complacent in the sense -- complicit in the second -- the sense that he has been silent. >> what about the democrats in the libya war? said it wass unconstitutional at the time. the president had no business being there. onre were though the less the democrat -- there were those of us on the democratic side, i thought the president's use of the war power in libya was unconstitutional. i thought what the president just did in syria was unconstitutional. the use -- the power of the
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executive has to be stopped. dorothy, thank you for coming and speaking to us. i would like to ask a simple question. if we believe you that we need more congressional oversight over justice and in general. and we are sounding the alarm and need to defend the rule of law. what should we do? i would urge you to apply to work on the staff or committee of a member of congress. that is what they need people -- need, people who are committed and devoted. ofht now the recruitment out the law school, the executive branch, that's where you get your pedestal to go into private practice and make money.
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it needs all you people to go work with them. even though you are not going to get paid the same they get paid, that is what is needed. >> you don't want to just talk about problems without having a solution. aat strikes me as curious is book recently came out called how democracy died. it talks about surveying throughout history tyrants who came to power and how they essentially assembled their government and destroyed these important norms. they referenced norms as the soft guardrails of democracy. what is interesting in our country, it has always been known that the department of justice, institutions of justice are off-limits. administrations, when they come in, the department of justice and career people will sensitize them to the fact that
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the initial inclination to bring the doj close to the white house is the wrong one. every administration looks and says we have to bring them close. the department of justice is unique in that when you look at administrations and scandals going back to watergate, when the department of justice was held at arm's length and the fbi was, as well, whenever we there was found to be no where there, they could say that was an independent agency. they came up with nothing, which is more credible. if you try to bring them in and make them part of the team. >> going to work for congress is one thing. most people are not going to do that. there is no substitute for political involvement.
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the day after trump was elected, there were major demonstrations. major demonstrations that people of various backgrounds. otherwise --ost other than the fact that trump had been elected, were some of the comments i had seen where people were demonstrating this terrible thing that happened and said they had and devoted. i remember thinking to myself what right do you have to protest us when you couldn't be bothered to vote? not to mention work any political campaign. ultimately, what kinds of constitutional safeguards. those safeguards are guarded ultimately by the people being alert and voting for people who will safeguard that.
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people ina lot of many stages telling the same antidote. -- antidote. there is a swearing-in of a locally facial -- local official, chuck will be there. we talked about how benjamin franklin merged with the constitution and a woman looked at him and said dr. frankland, what type of eight government have you given us? -- white above a government and the given us? we have done 200 years so far. there are other republics the last 200 or 300 years. dealing the aggregate power and the abuse of constitution norms, and dealing with the overwhelming power of money and
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politics, which i think is cancer on the political system, the question is will historians write to the american -- about the american government as they do the romans? a good democracy, then it involved -- it evolved into something else. let's -- >>
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