tv Freedom Forum Institute Discussion on Role of Special Counsels CSPAN December 16, 2018 5:28am-7:00am EST
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forum institute. the programs and initiatives partner of the museum. we are pleased to welcome those of you here in the studio and those of you watching on the livestream and those of you watching on c-span 1 or listening on c-span radio, as i understand it. my job is to welcome you and give you a touch of history to bring us up to speed with the contemporary issues we will talk about, but i wanted to acknowledge that it is bill of rights day, a day we have been celebrating since 1941. those of you who have large galas this evening, we will try to get you out in time. it started december 15, 1941, and franklin and eleanor roosevelt were to go to new york for a large tickertape parade, but the attack on pearl harbor occurred on december 7, and it was a small ceremony at the mayor's office eleanor roosevelt only, but it has carried on as a national holiday and we have an affection for it in the building. more to the point, we are here today to talk about independent
counsels, special counsel's, or to use more combative terms, special prosecutors. depending on your point of view. since 1875 special counsel's and special offices have been used for a channel to examine the conduct of government officials, from postal clerks presidents. -- postal clerks to presidents. roughly 30 individuals, i believe, have held that title, outcomeiations on the from zero convictions to 220 plus, and a range of impact from negligible to impeachment. along the way, the authority has rested in various places -- the justice department, the president's office, and with the 1968 ethics in government act, which after a few renewals was allowed to expire. the act, not the ethics. it occurred to me the best way to get through the history and into the panel was to -- at one point in my very career, i was interested in sports, so i use sports analogies.
let's look at the hits runs and errors on how this is gone. first at the plate was john henderson, named in 1875 by ulysses grant to investigate what was known as the whiskey rings scandal. bribery, corruption, and at one point a member of the president's inner circle, general orville babcock, he was serving as a chief of staff, he was a personal secretary. grants would later fire henderson. for impertinent remarks to a grand jury. james broadhead was appointed. 200 90 people were charged and 110 were convicted. in 1881, prosecutor william cook investigating what was called the the star judge -- which was called the star judge scandal which had to do with postal authorities accused of accepting bribes. we did a recent program and a
scholar on benjamin franklin pointed out that for much of the nation's history, much of the federal government was a post office with an army attached. so you find a lot of scandals having to do with the post office. the teapot dome, harry truman, looking at the bureau of internal revenue. 162 staff fire but no indictments. truman actually been fired attorney general mcgrath, who fired the special assistant looking into this, so there is sort of a moment there. we will go back and forth to -- no doubt, the watergate resignation in the saturday night massacres, but the topics pick up quickly in the 70's -- in the 1970's, 1980's, and 1990's. we have come to today's subject which is at various moments and increasingly so, capturing the attention, rightfully so, of the
nation. allow me to introduce our panel today. we have president jimmy carter's chief policy advisor, a writer of a recent well reviewed book which touches on the subject of today's program. in the clinton administration, he was u.s. ambassador to the european union undersecretary of commerce under secretary of state, deputy secretary of the treasury and special representative of the president on matters retaining the holocaust area issues, and in the obama and trump administration's he continues his work on the holocaust as a special advisor to the state department. professor jonathan turley, a nationally recognized legal scholar and analyst who is frequently appearing on various network programs. he has had a distinguished career as a lawyer. he is a professor of public interest law at george washington university. today, the lead counsel on the last impeachment trial in the
senate, and during the clinton impeachment represented the attorneys general and also testified on matters of whether the president could be impeached on issues related to lying, i guess is the only way to put that. the honorable kenneth w starr, who served as the united states circuit judge for the district of columbia circuit, to then u.s. attorney general william s smith and law clerk to fifth circuit judge david dwyer. he was appointed the independent counsel for five investigation, including what was popularly known as whitewater from 1994 to 1999, and the author of a recently published book, contempt, a memoir of the clinton investigation. our moderator, who i will shortly turn this over to, is a -- greta van susteren a widely
known legal expert and television anchor for cnn, fox, nbc news a former civil defense , and critical trial lawyer. you may have noticed that most recently, she conducted a newsworthy interview with president trump at the g20 summit in buenos aires. so welcome. >> thank you. [applause] thanks for coming today or watching via the livestream. it is exciting to be here. watching the video showing the freedom in the united states as i travel the world and we are so lucky to have freedom of the press here in the united states, and boy what a difference it makes. i always like to tip my hat to that part of the constitution. let's talk about special prosecutors in independent counsels, investigations. let me first lay some history.
me back to 1970 and give me some background on president carter signing this statute, or this bill that became law. >> thank you, greta. one of the reasons we won the election against drilled ford in 19 76 was the reaction to watergate. the american people or looking for an outsider that brought a higher moral standard. carter said while he was running i will never lie to you. it was not just a slogan. we put together all the ethics legislation that is here today. for example, to curb cia excesses, the foreign intelligence oversight act merit , selection of judges, inspectors general and each of the agencies to root out fraud waste and abuse, selection of districts of -- merit selection of district court judges. the 1978 ethics act, which greta mentioned, is one of those major provisions enforced today.
it required for the first time the disclosure when you were going into office by a senior officials, you asked about any potential conflicts of interests and restricted gifts with an office. -- within office. it restricted your ability to lobby the agencies after you left the office. the provision that brings us here is title vi of that 1976 act that created the office of the special counsel. and the reason was the saturday night massacre. richard nixon, at a time when the noose was starting to tighten on watergate, he asked his attorney general to fire the special prosecutor. he refused. he resigned. he then asked the deputy, and he refused. he was only the third in command. the solicitor general robert bork agreed to fire cox. but it was that recollection that led to the creation of the office of special counsel. here is an interesting tidbit,
and that is having created this office with great fanfare, the president signed a law almost 40 years ago -- october 26, 19 78 -- the first special counsel appointed is none other than arthur christie investigated the allegation that his own chief of staff, the president's own chief of staff and campaign genius had sniffed cocaine at studio 54 in new york. the allegation was made by none other than roy cohen, who was -- represented one of the owners of studio 54 who was the hatchet man for senator mccarthy and donald j. trump's first political mentor. he went to our attorney general and represented one of the owners of studio 54, which was under tax evasion charges, thinking he could plea bargain by falsely accusing him. so $1 million later of legal fees out of his own pocket with
a hair trigger allegation, all you needed was a simple allegation with hardly any vetting, he felt compelled to appoint a special prosecutor. 24-0 after 100 interviews and 19 grand jury investigations, but here's the thing that is topical today. the investigation carried into 1980, into carter's reelection against ronald reagan. not once during the investigation did carter interfere with it, call it a witch hunt, say it was a political effort. i know ken, you were subject to some attacks during your tenure, now -- mueller is now but carter never did. , i think that is a great tribute to it. we let it run its course, and remarkably, a second campaign manager was also accused falsely of drug charges. it had too much of a hairtrigger at the time.
ken has problems of a different sort with the act. our problem was all that you needed was an unsubstantiated allegation and you had to up cash -- appoint the special counsel and millions of dollars of legal fees later, the result would come out. but the tribute to president carter is not only that he recognized we needed some independence after the saturday night massacre, but he let the program go through its course and the investigation go through its course, even though it touched heavily on to top -- two top campaign and political aides at the white house. >> you raise the ken starr objection, but ken, kelly is it -- you can tell me if this is correct, you said the statute is structurally unsound constitutionally and the statute tries to cram a fourth branch of government into our three branch system? i assume that is the correct quote, correct me if it is wrong, but you can speak for yourself, very eloquently. thanksrr: let me express
to the new cm -- newseum for this bill of rights today. another structure of our liberty, the structure of -- structural protection. we needed the bill of rights the , original constitution was lacking without that. the original constitution wisely set up our separation of power system. now we are talking about these structural protections rooted in the separation of powers. i think we the people in the words of the preamble of constitution, underestimate the importance of that structural arrangement in terms of the protections of liberty. to mr. madison and others, those were foundational, structural, preservenal in a word the liberties of free people. experiment --le the second noble experiment that
lasted for 21 years, namely the independent counsel provisions -- of anr was otherwise very sound and marvelous statute called appropriately the ethics in government act, was ill-conceived. because it created structural tensions that i think were eventually these architectural faults were so profound that the structure was doomed to collapse. it took a while for the republicans come by took judge walsh iran contra. and for the democrats come it took your humble correspondent here and monica lewinsky. by that point, everyone was fed up by the special counsel provisions. they were originally a special prosecutor provisions. two things about the elements of the statute. in contrast to president
grant determining or the attorney general in harry truman's case determining there should be an outsider from the opposite political party to the party in power to examine corruption or allegations of corruption, the special counsel provisions took that power away from the executive in order to ensure independence and placed it in the hands of a three-judge court, or a three-judge panel on the united states court of appeals. that, to a number of us who were thinking about it at the time, especially in the reagan white house, was constitutionally anomalous -- not unheard of for judges to appoint prosecutors, but why and in order to ensure independence we are putting the attorney general on the sidelines in terms of choosing the person, but i saw this personally by virtue of janet reno, the attorney general who
called for the whitewater investigation at the instance of president clinton. so what was the provenance of whitewater? president william jefferson clinton directed his attorney general, janet reno, to appoint the statute was in a state of destitute at the time so she used the the ulysses s. grant model, she put her authorities -- quickly put into place robert fisk, a distinguished lawyer of great integrity who had been a prosecutor in new york. bob started the investigation and then congress chooses to reauthorize the statute. the attorney general, general renoy goes to the special division, now back in business, and says,
the investigation is already underway. just anoint bob fisk, who was already working on this, and let him continue his work. to the shock and chagrin of many people for special division -- i do not know if it was unanimous or not -- in any way, they said no, we have to appoint someone completely independent of the incumbent administration. while we have great confidence in the integrity and uprightness of robert fisk, he was appointed by the attorney general. so a sort of very formalistic analysis, and yours truly is appointed. that system of appointment by the attorney general, the current system under which bob mueller was appointed was structurally sound. yes, bad things happened. ulysses s. grant fired the special prosecutor. that is unfortunate, but life goes on. yes, harry truman, after the
attorney general fired the special counsel fired the attorney general. it goes with the territory, if an individual is going to be investigating the president of the united states, half the nation will think they are a skunk at a lovely garden party. so why are you doing this? you are exceeding your man died, you're out of control and you are on a witchhunt. these kinds of things are said from time to time, and then of course, famously, as we heard, the rancor, anger, and angst in respect to the saturday night massacre. the whole system actually did work, and the system is working again with bob mueller, and hopefully we will understand that. the second thing i want to say -- i will be very brief about this -- in contrast to the traditions of the country, just our life as we experience it, the famous dictum that the life
of the law is not logic, but it is experienced. we have a historical experience. in his dissent to the opinion morrison versus olson, upholding the constitutionality of the independent counsel provisions, the special counsel provisions justice scalia said the statute is acrid with the smell of impeachment. it was effective rhetoric but also quite prophetic. his prophecy was rooted textualist as he was, lay in the text of the statute. the text of the statute was an invitation to file impeachment referrals to the house of representatives. one of the profoundly misguided provisions of the special counsel statute. why would they do that?
, theye they had just being congress, they had just been through an impeachment process. their minds ran to impeachment, but i think the results of andrew johnson a long time ago and much more recently bill clinton is the american people really don't like the impeachment of the president. andrew johnson was not popular, bill clinton was, but all in all, the structural protections of essentially a national consensus embodied in a two thirds majority requirement for removal suggested that we don't need that anymore. and happily, the current regulations under which bob mueller was appointed, which ironically were fashioned by janet reno and her very able staff say not one word about impeachment -- rightly so. moreover, the reporting mechanism, everyone was talking about the mueller report and jonathan has spoken very
thoughtfully about this -- there is no mueller report other than to the attorney general of the united states. we will see the attorney general of the united states decides to do with whatever that reporting mechanism is. the only reporting to congress mechanism that is on the face of the regulations is to the effect that the attorney general is to inform congress of certain key things. that is not to in any way say that regulations forbid a report to congress and it will obviously be a judgment call as to what will eventually be in the mueller report, whether it will be minimalist, as would be appropriate for a department of justice prosecutor because justice department prosecutors are not to issue reports saying, we think mary roe committed crimes, but we chose not to indict her for the following five reasons. that is a terrible departure
from ancient traditions of the justice department, that you don't go around besmirching people's reputation as a prosecutor. you indict or you don't, or you seek an indictment from a grand jury or you don't, but you don't go around filing reports. >> where to you stand on this whole part about whether we need them or do not need special prosecutors, whether the justice department can do this or not? we have an office of public integrity at the justice department, and when i was growing up in the business, that is how the investigation with public officials were done often, was in the justice department. >> that's a very good question. i do not share ken's thought about the minimalist chances of the mueller report. it will probably be as minimalist as war and peace. [laughter] what is fascinating about the times we are living in, many of
the original arguments for the independent counsel act seems to be more profound because this is a president who has made some in his statements directly and supposedly was interested in firing robert mueller. this is a process that has not been ideal. i agree with ken, this is a process that can work. i think it has worked. but it is also difficult. i supported the appointment of a special counsel after comey was fired but quite frankly i don't know how mueller could have been on the list. he just interviewed for comey's job. it is a little odd. to go to the president and say you know the guy that interviewed for the job at the fired comey he is going to investigate you for firing comey.
i think trump has a reasonable objection to go you could throw a stick and hit 25 seasoned attorneys, how come i got the one i interviewed to replace the guy i am being investigated for firing? that strikes me as having a compelling sound. we have other problems associated as we have with the whitaker controversy about the level of control of the report, and also the degree of resources. if you appoint someone who may be hostile towards the special counsel. having said all that, i think ken is right. it has actually worked. there is a lot of political pressure and oversight that comes from a multiparty system. to get your point, greta, when the court looked at the morrison case, it was clearly uncomfortable if any issues that
caken had raised. this is not a normal creature you find within a tripartite system, because it is not housed completely in one of the branches. it is crazy to ignore how this creates an anomaly, as kent -- ken said. the current system avoids that because the special counsel is solidly positioned within the justice department. it does not resolve the questions, though, because there is this issue of the special counsel not being confirmed. the way the argument goes is simply that the special counsel at a minimum is the equivalent to a u.s. attorney. he is exercising powers that exceed a u.s. attorney, because he does not have any geographic limitations, and virtually has no budget problems to think of. so the argument is, you can't appoint that type of officer under the constitution without a
nomination and a confirmation in the senate. argumentot a trouble -- trivial argument. even though he is in a better constitutional position than an independent counsel, we have to be left wondering, what exactly is he? is he one of these inferior officers? he does not walk and talk like one. quite to the contrary, he is created not to be an inferior officer. but if that is the case, it destroys the purpose we are talking about. if we go from the independent counsel, if he really is not an inferior officer, the president would have to nominate him and the senate would confirm. we get back to the same question again, where we go back to carter and say, what are we trying to achieve your? -- achieve here? we are in this position where a -- youfolks would prefer don't want the perfect to be the enemy of the good. there is a fear if we look at
this closely, it might not be sustainable under the constitutional, the doctrines we apply. what we know is that in morrison, the court said the independent counsel act made it over the line, perhaps sputtering and crawling, but it made it over the line. the special counsel is in a stronger position because he is part of the justice department. he is subject to the attorney general or designee. that removes a lot of the concerns we had before. but what remains is still sort of nasty, and that is, how do we define him within the justice department, and does the president still have a right to appoint? which would defeat the entire exercise we just went through. >> can i say. . slight disagreement
what we don't want to go back to is ulysses s. grant firing the special prosecutor because he was prosecuting his top aide. what we don't want to go back to is a watergate situation like the saturday night massacre, where the president feels he can order the attorney general to fire the special prosecutor. i do not think any of us are saying that. it is true that scalia objected to the constitutionality of the the act that president carter signed. he was the only one, it was seven to one in favor of constitutionality. one justice recused himself. there is a virtual unanimity on and the reason is the supreme court said ultimately the attorney general still retained control over the special prosecutor even though the special prosecutor was named in person by the court of appeals. the attorney general has initiated the process. having said that, to me, the
most important thing is not being hung up on whether the court of appeals should be involved or not. it is ensuring that when there is on the 1990 nine regulations going forward on a special counsel that the independent counsel is sufficiently insulated from political pressure. by the president, by the attorney general, so that he or she can do their job independently. that is really what the thesis was of the 1978 act, under which, ken starr was appointed and did us a very great job under very difficult circumstances. we do not want to go back to that. i think under the janet reynaud regulation -- janet reno regulations, under those regulations we cannot fire the special prosecutor, except for misconduct in office.
it is a pretty high standard. as long as that special counsel is insulated from the pressures of being fired and he or she can do their job. we also have to recognize we are in a political system. the attorney general is appointed by the president. bobby kennedy would hardly be independent if jack kennedy was in trouble, and same with truman and so many attorney general's. so with that recognition, it is just critically important that when a special prosecutor or special counsel is named, that person can be insulated sufficiently from political pressures to give the american people confidence that that person can do the job that is required to investigate the high officials, if necessary president, vice president, other senior officials. attorney generals.th so many so with that recognition, it is just critically important that when a special prosecutor or special counsel is named, that person can be insulated sufficiently from political
pressures, to give the american people confidence that that person can do the job that is required to investigate the high officials, if necessary president, vice president, other senior officials. that is what the american people deserve to have. 1978 act wasthis designed to ensure. one quick footnote that was achieved, interestingly enough, the regulations under bob bork was appointed, leon jaworski was appointed. this was passed nonetheless by agencies including the department of justice and others bound by their own regulations, until such time as they repealed them. fashion very good legal advisers around him, but this professor of constitutional law as well as and i trust, one of the iconic courses at yale
collaboratively with a great man had reflected on these things. he thought not just about market share and concentration levels and so forth, and markets and antitrust he had thought about , our constitution. if we go back and look at the promulgated, he provided the attorney general -- he was the actual attorney general at the time -- provided this extra measure of protection for independence. the attorney general bound himself, that before he would , that he jaworski would go and secure the approval, the approbation of both the chair of the two judiciary committees and the ranking minority member. in other words, it would have to be that political consensus that leon jaworski should go. and guess who agreed to those regulations? this was not an act by bob bork asserting some authority he did not have.
he cleared it with the white house counsel, as i understand it, that these are the regulations that i will propagate as the attorney general who reports to the president of the united states. so it was in that extra measure, mr. ambassador, of achieving that goal of job security and independence. greta: i want to know if any of you have any thoughts about the responsibility of the press and his whole business of special prosecutor and coverage, because the country is electrified right now, as it was during the clinton days. it is almost like shirts and skins or hatfields and mccoys's, -- or hatfields and mccoys, whatever is your preference. the free press corps, the american people have a right to know what is going on. on the other hand, there is a rage bonanza with this, and sometimes the rage causes people
to get on tv -- i heard people a week ago talking about a memorandum -- it was one of the ones in the michael cohen testimony, but it was completely blacked out. some people said what they thought was in it, even though clearly nobody knows what is in it except the special counsel. so what is the role in covering the fed keeping the american people informed, but not electrifying them and causing greater division than is warranted? prof. turley: i think this is the best and the worst of times for the media, quite friendly. at the best of times, the media has been the critical check too much of this. congress has not been a particularly great ally to the constitutional principles here in general. the media really stepped up in a very important way, and forced into the open, many of the issues that we are now looking at and more importantly, mueller is looking at -- the worst time has to do with the tenor of media coverage. i think it is very sad. i have worked for cbs, nbc, i
write for three newspapers and have for a long time to, and i have never seen anything like this. we saw it coming, the echo chamber coverage that everyone who does not like president trump, they will look at csnbc, fox, but it is at a deeper level where you have reporters and anchors that seem like open advocates now. the president speaks and you have an anchor on cnn give the counterpoint, and say this is where he is lying and not. and it is not like this guy doesn't give you plenty to work with as a journalist, [laughter] but it is the tenor of, now i will response to the president. and what has been lost for the viewers is it feeling like anything they can trust. and unfortunately, as a legal analyst, it has had the first impact for us. legal analysts have lost our bearings. you have legal analysts that also sound like legal advocates. i write a lot about what i see on tv, where people have smoking gun interviews -- here is the smoking gun.
one person said president trump is likely to be indicted or resign within two weeks, which is remarkably moronic to come up with a specific time period, but all of this gotcha, bombshell stuff that has gone on from the beginning camera and what is missing is the public is not being informed. look, from the beginning i said i did not think there was a clear or strong obstruction case to be made for the firing of james comey. i think that is a fact. just because as a criminal defense attorney, these are specific, defined crimes of obstruction and it is difficult to see how those elements could be met in this case. it does not mean they cannot be met. the same thing with the collusion allegation. there are no specific crimes of collusion, but there are ones that could be related to collusion. so there is a lot there that could be a criminal matter, but the public isn't hearing that. they are hearing on one station that this is it, he is clearly going to be indicted, and on another station, this guy is as pure as driven snow, and we are
failing the public. i say that primarily about legal analysis. and so i think we will look back on this period with sort of a hangover of, my god, what just happened? and quite frankly, we are going to have to look at how honest we were in the media. i think trump is right. i think it is hilarious that the two industries that trump hates the most, media and the law, he has transformed those industries. he has brought media act into the black, law school applications are through the roof. [laughter] and the fact is, they need each other. i wrote a column recently -- i soap box -- but the same way zucker on cnn was
asked why they always cover trump, he said you know, because we don't cover trump in our ratings go down. trump also -- we had a slight moment of honesty that they need each other. this is one big scam, that each side is attacking each other as they are both benefiting from that, but the public is not benefiting because they are getting less information. mr. eizenstat: let me take a crack at the question. we just lost a really wonderful president,e-term george h.w. bush, and 1, 94, 94, jimmy carter, who i wrote about in my book. each covered the center of their party and reached out to the opposition. some of our major achievements in energy, the panama canal,
salt and such, were done with the republicans. george h.w. bush, the budget on the environment and so forth. the real question is now, has the proliferation of social media and cable news caused the polarization we are seeing? it is so different than what carter and bush had, or is it simply a reflection of what exists already? that is a difficult question to there is no easy answer, but it stirs it up and accelerates the polarization that is already occurring. when i was growing up, many of you perhaps, the news came from walter cronkite, hundley and huntley and brinkley, and you basically accepted it as it was. now, the news is being so politicized that i think it really refracts the polarization and accentuates it. that is not good for a democracy that relies on compromise, ultimately. we really cannot achieve the goals we want to compared to the new autocratic regimes like
china, russia, unless our democracy functions. and for it to function, there have to be a willingness to compromise across party lines and not point fingers at each , other. so i really think this is a very profound question that goes beyond just a special counsel, and is something that i think all of us should really reflect on. mr. starr: let me associate myself with the lamentation that i think most, if not all of us feel. but i want to offer a couple of huzzahs based on my experience, and greta, you lived through this daily. in our shop, the independent counsel's office, not so terribly long ago, but 20 years ago, 20 years plus now, we really divided the media world into two camps. truth seekers and everybody else.
it was not that the non-truth seeking members of that camp were denying the truth or whatever, it is just they were not seemingly aggressively interested in seeking the truth. let's lay out the facts. so i will give there he quick examples. jeff girth of "the new york -- "the new york times," and investigative reporter who was the first one to break the whitewater story. i think he has said that the
whitewater transaction involving the clintons was filled with broad, and it was. his understudy at "the new york times," at "the washington post," sue schmidt, a truth seeker. abc news i would single out as being filled with producers who were aggressively seeking the truth. nbc's on camera person, lisa myers, always after the truth. and i do not mean by the enumeration of these heroes, as i see it, and the world of truth seeking, to say they are the only ones. i use those examples to show that the so-called mainstream media had very distinguished truth-seeking people. so when the clinton white house was trying to get sue schmidt of "the washington post" fired, they said in their many fine hours, no, we will not fire her, so go away. no white house likes to be criticized, but then there is the other side -- this is my final comment on this -- and that is news as entertainment. i love larry king. i have been on his program several times. he is a good guy and he is still , around.
just watch a dodgers game, and you will see him right there. we were at the longest world series game in the history of the planet, and there was larry king. and he stayed, apparently until , the very, very end. when he interviewed susan mcdougal, recently at the time convicted of serious felonies in connection with her fraud committed against we the people in her stewardship, along with her former spouse, jim mcdougal of madison guaranty savings and loan, the softballs from larry king just came cascading out and susan was engaged in her recriminations, and her jeremiad , oh, i am just the poor joan of arc, just being persecuted by this evil person. so that was the narrative. i am waiting for larry to do a little bit of cross-examination. but wait, weren't you convicted by a little rock jury after a
three-month trial with serious felonies beyond a reasonable doubt? not a word. does anyone remember the name conrad black, a canadian who ended up having his own issues? the time he was the owner of, i think it was "the daily telegraph" in the u.k. so we are at this gathering in london, and i find myself sitting next to conrad black, long before he came into any legal peril. he said you know, how is it going, that sort of thing. he said, let me tell you about larry king. so i go into my histrionics about how larry king failed to , ands job as a journalist conrad asked to me, he said ken, larry king is doing exactly what
he is supposed to be doing. i said, no he is not, he is not asking the basic questions, look at the check you wrote to yourself to pay your tennis club dues on the people's money. and he said no, ken, you don't get it. larry king is keeping up his ratings. that is his only job. so it depends upon who we are talking about, right? and i guess jonathan, a lot of what we see in the cable news is really responsive to market forces. people want to be able to watch cnn and get really angry at the president. people want to watch fox and get really angry at those who are angry at the president. they want to be angry at nancy pelosi. welcome to democracy. it is not very elevated, it is very untidy, but it sure is -- what shall i say -- consistent with our first amendment values. greta: let me switch gears, and i will give you the opportunity
to ask questions. we have microphones at both sides of the room. let me switch gears to this question. has nothing to do with the current investigation, but a question i would like to learn the answer to -- can a sitting president be indicted? i know the department of justice policy is no, but policy can get changed with a pen. what is it? can a sitting president be indicted and prosecuted? >> and sent home. because you can always indict, but can the process be forced through? i testify before congress, and i say look, this is a close question, this is not -- this one has always mystified me. when i testified during the clinton impeachment, i said at that time that not only clinton could be impeached for perjury, but he could be tried in office.
greta: those are two different things. prof. turley: they are, but starting with the constitution, there is nothing that says the president cannot be indicted. nothing. you think something that important, they would utter a few things about it. but they didn't. and the reason is because impeachment goes to the office, indictments go to the individual. of course you can indict a sitting president, but that means essentially look, once you indict a president, the chances that the president is going to see the inside of a courtroom during that term is virtually nil. greta: let me do a flip question. if the constitution is silent about that, and it is, a president has extensive pardoning powers, can he self prospectively?o prof. turley: i think he can. but people are arguing against indicting sitting presidents, you are reading into article two a sweeping immunity to the
president. where does that come from? where in the constitutional convention is there any inkling they wanted to give the president this level of immunity? the argument is well, if you indict the president you will distract him. really? like an impeachment? do you not think donald trump is distracted right now? so these arguments of functionality and exclusivity, as they are called, are really without a basis. if a president is indicted, my guess is it would occur after the term. and more importantly, judges are extremely flexible when it comes to presidential time. ken can speak to that, about the negotiations to even sit down with the president for an interview. but when it comes to , yeah itoning, greta is a box set.
there is nothing in the constitution that said he is excluded from the list of pardon recipients. now, that may then become an impeachment issue, because you abuse the pardoning power, but you cannot have it both ways. there is nothing that says a president can't be indicted. greta: you said you cannot pardon yourself for future crimes, but if something happened few years ago and you are president, you have not been indicted, you expect it to be coming down the road, you could pardon yourself? prof. turley: you can pardon for crimes that have not been charged. i think the courts are accepting of that. mr. starr: i agree entirely with jonathan, with the long view that it is almost on to conclude that the president cannot constitutionally be indicted. and i cite, in addition to the
argument jonathan's making, a case where instead of either settling the case, he said, i am immune. what i viewed as an utterly extravagant claim. he said, well that is an unkind thing to say. well, the supreme court of the united states agreed it was an extravagant claim, 9-0, with two of president clinton's own appointees, ruth ginsburg and agreeing that , there was no ground whatsoever for a president to say, i'm immune. greta: that is civil. mr. starr: i know. thank you. so i believe it follows that he, as someone who's not above the law, the opinion says mr. president, you are just like the rest of us.
we respect you, and obviously judges, as jonathan just said, will take all this into account. coming to your point you are pressing, greta, rightly so, is let's assume you can be indicted, the two opinions concluding to the contrary that the president cannot be indicted -- those do govern, unless changed, robert mueller. so the president cannot be indicted under justice department learning and teaching. greta: if they wanted to change that, who changes that? mr. starr: the attorney general could write now say, i disagree with the opinions. he would hopefully write it up so it is a recent decision. prof. turley: i am not a big fan of the clinton era llc -- clinton-era?
olc memo,clinton era which i think is dreadful. the nixon opinion is more substantive and interesting. greta: and olc's office of legal counsel at the department of justice. prof. turley: but they actually did not say, we conclude there is immunity while in office. they'd knowledged, correctly so, there is -- they acknowledged, correctly so, there is a division of opinion, some believe clearly he can be and some believe clearly he cannot. some have set as a policy -- so they basically said as a policy matter, we do not want to get into that, and we think it is a better practice not to indict someone in office, who is -- so it is not quite as powerful as people portray. mr. starr: in terms of the trial aspect, i do think there could be a constitutional claim of interference that is unconstitutional as applied. let's say the hypothetical judge who hates the hypothetical president, and is going to just drive the president and his lawyers mercilessly, no
no extensions, no postponements. airesneed to go to buenos , because i need to be interviewed by greta van susteren. no, mr. president. the state of the union -- no. this is an insane hypothetical. who do you think you are, federal district judge? you must show respect to the presidency. mr. eizenstat: i thought it was because they turned down greta. greta: [laughter] i was thinking that too. as long as we are doing hypotheticals, let's say we have a rogue special prosecutor hammering the white house. and people are there'll the time for information, is there any recourse the president has against a runaway investigation? mr. starr: i apologize for grabbing the mike, but when you
use that term, rogue prosecutor, , mories come back to me [laughter] out of control, witchhunt, etc. now president clinton was much more elegant than president trump. he didn't tweet. greta: he didn't twitter, yeah. mr. starr: but he did his dirty work of challenging the prosecutor through surrogates. and it was pretty dirty stuff, .t was really dirty stuff isn't plugging my book, but go ahead if you see fit, the holiday season is here. [laughter] ms. van sustern: and he raises through the audio. stu has a book too. mr. starr: that's right, i will get his book for the holidays. so this is the thing -- yes, i wanted to be fired so i could go to pepperdine university. if i was really guilty of
misconduct under the statute, as u rightly pointed out, the attorney general has certain controls and can fire the independent counsel for good cause. oddly enough, under the statute, one of the anomalies of the statute is, had i been either, i would have accepted it with good grace, written my book, pepperdine, and lives happily ever after. but if i had been fired, this was another very strange dimension, and i think it is unconstitutional of the statute, i could have filed an action in the united states district court judge, judge, overturn that decision. a single federal judge could overturn the single judgment -- maybe not so considered -- of the attorney general of the united states. flagrantly, completely unconstitutional.
but that was, as i said, to try and achieve -- i do not want to try and so skeptical about the noble goal stu has lifted up so eloquently, about the independence and integrity of the investigation, but we want accountability. i believe the current regulations achieve that balance. there is a little bit less independence. maybe you would say there is a lot less independence. i disagree with that, because the regulations provide for day-to-day independence in the conduct of the bob mueller investigation. i know of no investigation, none, that there has been any interference at all, either under rod rosenstein are now under matt whitaker, that that -- that there has been any interference whatsoever with the day-to-day conduct of the investigation. and then you have the authority by the attorney general to fire the special counsel now, for good cause. so i think we are in the right place, and we were already in
place, because one of our lamentations was -- if i sound like i am whining, i apologize -- we were under pressure because we felt the pressure -- felt the president committed perjury, we just didn't have the evidence to prove it. all kinds of reasons why we didn't have that evidence. susan mcdougal would not cooperate. documents had been destroyed, just in the ordinary course of business and so forth. reno, and god rest her soul, she was i think an honorable person who appointed independent counsel after independent counsel in the clinton administration, but something happened and she went south on us and she became hostile.
i think the presidency was in peril there it it wasn't just some failed land deal in arkansas are what have you. so i wanted her to fire me or stand by me and at least go out and say at a press conference, either way, it is a free free to so feel criticize the independent counsel, but don't criticize him on the basis that there is no justification to look into the monica lewinsky phase of the investigation, because i had evidence that caused me to believe the president may have committed perjury, may have tried to intimidate witnesses. he did both. and it had to be investigated under the statute. when the trigger was too much of and for hamilton jordan to have to go through that, but he went through that because can similarity said i
ken to do that -- because civiletti said, i have to do that. and janet reno said, criticize his techniques but don't criticize the investigation itself. mr. eizenstadt: there is no question but that the independent counsel under our 1978 act, which lasted until 1999, had more independence, and was more difficult to fire than is the case now. you had to show substantial improprieties for the attorney general to fire a special counsel. however, i do agree that even though the standard was higher
under our 1978 law, it still requires the attorney general to find cause, misconduct. and you have one other element, the citizens. attemptsorney general to fire a special prosecutor that is doing his or her job, that has to be under the regulations now, given in writing, the reasons, and there would be a huge backlash against firing someone as special prosecutor who is doing his or her job. and with respect to mueller, there has been very strong, bipartisan statements in the senate and house, let him finish what he is doing. the combination of the standard necessity to find misconduct, to do it in writing, and to stand before all
of you and explain that this was not a political effort to stall a legitimate investigation, provides significant protection, not as much as we had in the but significant protection, not just for this special prosecutor but for any in the future. greta: let's talk about accountability. it has been reported, i don't have firsthand knowledge, that some staff lawyers on bob mueller's staff have had some it is aontacts, whether contribution to the hillary clinton campaign, or some contacts. should those lawyers have been when we have such a hair-trigger about making sure our investigations are so clean? should those lawyers have agreed to the appointment on it with
-- without any remote connection to the political opponent's campaign, especially the fact there are thousands of lawyers across the country who don't have that. you have any problem with that? part of thedt: problem that mueller has is that federal law doesn't allow you to make inquiries into the political affiliations of employees. but the attorneys themselves can raise these issues. i think they should, quite frankly. one attorney tangentially represented the clinton foundation or someone associated. the one failure i have seen in this is conflicts of interests. mueller has a conflict of interest, he is a witness to the matter he is asked to
investigate. rod rosenstein, i can't believe he did not recuse himself, something raised by department of justice lawyers correctly rod rosenstein was cited as his memo for the original reason for firing james comey. and there was that famous conflict between rosenstein and the white house. he was directly involved in events under investigation. so there has been a failure in my view to create these bright lines. that: do you agree rosenstein is a witness? , and ihave that conflict think many lawyers would agree figurenathan, i couldn't out why he was involved in and in light of the fact that he was a witness, is that you are handing ammunition to people who the be suspicious, or on fence about the integrity of the investigation when you have those things from the start. i have confidence in
the integrity of rock rosenstein. he was on that original trial team -- rod rosenstein. he was on that original trial team and we stayed close. if he was advised by ethics advisers and the justice department i might take a different view, because those pieces of advice have to be taken carefully. in the law weay, say presumption of regularity, what he was doing. greta: what about the appearance of impropriety? some would think it was inappropriate, that he was a witness and also making decisions on the appointment. i'm crediting his determination that it was appropriate, that he does not believe he has a conflict of interests. this is important .n terms of the appearance
i have expressed concern about some of the people around bob mueller. but in this political environment, criticisms anr made that you have a bunch of partisans around you that are out to get the president, and i believe those have to be taken seriously. happily, in my story to go back down memory lane, sam --, the of watergate dash fame, and a great man who eventually resigned from the position of ethics counsel to put yours truly in the office, yousam came to me and said are getting pilloried in the press that you are a partisan republican. there is an issue of the appearance to the american
that you are just going to be out, you lost your job -- i was solicitor general -- you lost your job because president bush 41 was turned out, was defeated fair and square by william jefferson clinton, so you have a bee in your bonnet, so to speak. i understand what you're saying sam, what is the answer? and he said, hire me. it turned out to be the right thing to do, hire me as your ethics counselor. did this make the "new york times" or "washington post"? i don't think so. but it came to be known that there was a man of integrity, and he is there as a check and a balance. haveob mueller asked me,
some functional equivalent of sam dash. greta: do we have any questions from the audience? just for my husband, so i say uh-oh. [laughter] >> how do i work this? greta: now we know it is my husband. [laughter] >>? hello? ? -- >> hello? i'm a lawyer, by the way. it bugs me that this person has all this integrity and this prosecutor has all this laws,ity, we are ruled by not people. i don't care how much integrity bob mueller has.
he was too involved in the picking of himself by rosenstein, and rosenstein is a witness, it is just too close. and you have these lawyers that are hired that had worked for something to do with the clintons, or were contributors to hillary, it just stunk as impropriety. and the 14th and the fifth amendment give us due process. the supreme court said due process equals fundamental fairness. when you are going after the president, it is important that this appears to be fundamentally fair. right off the bat, when it came out that you had hillary people or whatever they described them, democrats against trump, you
lose 50% of the people. i think there is a duty with due process, when it is to this level, the level of going after the president, that it has to be caesar's wife. be a departure, but i think this is a hard-core conflict. that is what i don't get with rod rosenstein. he is going to get a report looking into the firing of james comey. he was one of the critical players. whether heissues is was used or played by the white house. so mueller is coming to him and saying, help me define the scope and helped me to find whether we give this report to congress, when he is reading about himself? it is otherworldly that he is involved in this case. perhaps you are right, i'm
not saying you are right, but perhaps you are right here but hasn't that been corrected by the appointment of matt whitaker? we have and attorney general. we read these reports that rosenstein is still receiving information from bob mueller, but that can only be with the approbation of the attorney general. >> he was in charge for most of the investigation. ff sessions did the ethically correct >> i am really curious, let us say the special counsel columns out and proves that it is would ifby a jury or the process is that the donald trump gained the presidency illegally. he had conspiracy with russia, he defrauded the american people, one illegality after another and would be considered
an illegitimate president. gained that office legitimately, richard painter and i agree, the former bush void abniche, that would be an appropriate principle to stand up for at that point and to undo virtually everything he has done because he literally did not have legal jurisdiction to do that. >> i respect the perspective. but welcome to the world of experience. so i will quote the great chief justice john marshall. that proposition is simply too extravagant seriously to be , maintained. it really is extravagant. how do you avoid the actions of the president of the united states? that sounds to me with all due respect utterly
fansful. >> by legal principle. >> don't you love all the due respect. >> no one says due respect to me. >> but seriously, if i break into a house, that does not give me legal permission to sell the furniture or sell the house. and if donald trump broke into the white house, he should not benefit from the i will legality. what it does is encourage people to commit as many broken laws as possible to get in there and then they're immune. >> the problem with your wonderfully creative analogy, where did you go to law school? this is really good. >> i went to usc. chris oh, the university of southern california or south carolina? >> southern california. >> i thought as much. that was a compliment. >> my dad paid a lot of money for that tuition. what are you saying about to usc? not as good as pepperdine? >> i can tell that your con law proff was my dear friend who probably would have embraced
exactly what you said. and here's the problem with that. we have this this country something called elections. assuming that all of what you said was right, breaking entering and so forth, the people have spoken. so the, if i may say so, the constitutional process trumps your hypothetical. >> do you have a question? do you agree with that? >> we'll talk afterwards. >> my name is jim, i'm a former journalist, retired journalist. next question is i have a question tor jonathan. if the hypothetical president tells something that is not true, for example, this is the strongest economy we've ever had in the history of the united states, what's wrong with a journalist coming on the air and saying i'm sorry mr. president this is not the strongest economy we've had in the history of the united states? >> there's nothing wrong with it. that's why i said this president gives you plenty to work with.
to raise that. my problem is the level of raw advocacy that i see now, but this idea that these anchors now, not the guests, are actually holding forth and saying here's why this guy is a liar. here's the argument. why is he doing it this and we're losing the honest broker role that we have in the media, including in cable. i'm not too sure where people are going to get it from. he mentioned the rise of cable and social media. a lot of people have said this is all about millenals. i think that millenials, i've changed my view. i think the problem is our generation. i think we've messed this up. i write my columns about a 5:00 in the morning and my kids get up and go to school. they'll sometimes ask what's your column on? i'm looking at this story. and they always ask the same
thing. the question that i would have never have asked. is it true? and the reason i say this is because, when we were, when we grew up you would listen to walter cronkite and whatever walter cronkite said was true because he's walter cronkite. right? i'm not too sure this is such a bad generation where they're a little more skeptical. they don't necessarily trust what people are saying. but the problem is us. what have we done to the media where you cannot turn on a station any more without having this level of advocacy instead of coverage? your point goes to coverage. that's the job of a a journalist. but that's not what i'm seeing. ,>> sir, your turn. >> i would like to ask can for a couple of specific applications of general points that they made. ambassador, i talked about bobby kennedy certainly not having been, would not have been an
impartial attorney general in a case involving john kennedy. i'm wondering whether that same sort of a situation applies to matthew whittaker who has defended consistently president trump for what he considers to be a witch hunt. as for judge star, you talk about the appropriateness or the inappropriateness of mary row being talked about by the authorities as being guilty of a number of crimes but never being indicted.
again, does that apply to james comey's report, public report on hillary clinton and as a corollary do you think it impacted the election a at all? >> so look, it is unfortunately very typical that presidents often appoint as their attorneys general people who have been very critical in their campaign. nixon, john mitchell was his campaign manager for ronald reagan it was his campaign , manager and then later ed mees. it is very typical for presidents to do this. again, a great line that jack kennedy had with when they appointed bobby and they said how can you appoint your brother? well, i thought he needed some legal experience. jokes by the way in politics gets you a long way. but the fact is that all the cabinet officers are political appointees. the fact, however, is also that the attorney general is particularly critical in terms of administering the laws of the united states in a a fair way. and when the attorney general is someone who has been the
campaign manager for the incoming president, or the brother, it obviously raises flags. it's why the senate should pay particular scrutiny to whoever the attorney general is. and i think that's one of the reasons why, for example, mr. whittaker is not, was not named ultimately as attorney general but mr. bar who went through the process once. this is a really critical function and it gets back again to the special counsel because you want to make sure the and -- make sure if and when a situation arises that you have an attorney general who has the gumption and sufficient credibility and even though the president is appointed, to appoint someone of credibility as special counsel and allow that person to do his or her job. that is a very high bar and a very important bar. and it's ultimately a protection for all of us. when you look at the difference between the united states and
the autocratic governments with whom we're now competing, particularly china, it comes down to one phrase that's at the bottom of the constitution, from start to today. the rule of law. it is the respect for the rule of law. and that pervades everything that we're talking about now. again, the 1978 act i think was terrific. it perhaps had some flaws. ken mentioned some. i think it was the hair trigger which was amended. in 1983 that was removed and a much tighter scrutiny was required before a special counsel could be appointed. but at the end of the day it's the attorney general underscoring the rule of law. we look to that person to do so and when it comes to appointing if necessary special counsel to appoint someone of credibility and allowing that person to do his or her job. >> two quick points. one on your second question. i think james comey acted
inappropriately in doing what he did during the campaign, making these public statements and especially toward the end of the campaign announcing the resurrection of what we thought was a more bund election. i have no idea what effect, i would leave that to the political scientists. secondly, a brief reflection to what was just eloquently said. in the wake of government not only did the ethics in government act come to being but there was a hearing lost in the midst of history and the hearing was to focus on legislation by the chair of the senate collect committee on watergate to create an independent justice department along the lines of the fed. and one of the most articulate spokespersons against that proposition was ted sorneson. does anyone remember that name? the legendary speech writer for
john kennedy. and drawing from his own experience in the kennedy white house and seeing up close and personal the interaction between the attorney general of the united states who happened to be the president's brother, that he said please don't do that. the johnson department needs to remain part of the executive branch. and it with was more of a prudential rather than constitutional argument but one of the things he said which i think echos down the corridors of this last half century is it comes down to integrity. will attorney general robert kennedy say to mr. president my brother you can't do that. you don't have the authority to do that? guess what? i saw it up close and personal as chief of staff to the attorney general. mr. president, reagan, you cannot do that. now, who was talking to him? the attorney general of the united states in whom he was well-pleased.
he wasn't a campaign manager. bill smith was a very distinguished senior lawyer at my law firm at the time. he was an original member of the fabled kitchen cabinet. but when bill smith told, and he never called him ronnie once he was elected. but once he told the president you cannot do this and the specific issue was legislative veto which had been embraced. very important debate. can the legislature overcome or overturn regulation? anyway, without getting into the specifics the attorney general , said mr. president that is unconstitutional. here is an opinion from the office of legal counsel authored by ted olson. great lawyer. you know him or heard of him. and then this our view it's our constitutional. the president accepted it. guess what happened? your successer and certainly his name is escaping me.
but my friend from stanford having a moment here goes absolutely bonkers. the senior domestic policy adviser to the president of the united states said you did an end run. we never had a debate. marty anderson. marty anderson was a huge proponent of getting ahold of the regulatory state, which was a great initiative of the carter administration, of how do we achieve what with we call regulatory reform? and this was a huge tool. the president accepted that. why? because he knew the attorney general, had confidence in him. >> we have time for one more question. i will make it quick. less text about a month ago i finished reading judge star's book. >> thank you, congressman. >> this is a great former member of congress from philadelphia. but i remember in the book you had some lamentations about your stoicism as special counsel with the media coming to you on a
regular basis and you stoically and quietly refusing to engage the media throughout your period as special counsel. i was wondering what your advice would be -- >> sounds like you're saying i was wallowing in self-pity. >> no. you were stoic. and while you were counsel i think there were good reasons for you to be worried about talking too much to the media. but here we are in the home of free speech and media first amendment rights. what advice would you give or maybe some of your colleagues give to maybe as to whether special counsel mueller is talking too little, too much. this past week sort of the first time he launched a rebuttal to some of the assertions against him. should he be doing more of this? should you have done more? >> this is congressman jim coin and a very wonderful friend for someone who is educated and yale and harvard business school he
is remarkably learned. jim, i have a different approach than my friend bob mueller. i believe there is a public accountability function that you should say what you can say consistent with with grand jury secrecy and the general confidentiality of the investigation. he has chosen not to do that. i don't know how he's been able to do that because, as alice will attest we had the prets -- and chris -- chris camped -- press camped outside our house and office. but with what i describe in the book is a couple of real bone-headed mistakes. remember la guarda when i make a mistake it's a bute? i finally then agreed to a couple of interviews. and both totally backfired. one caused the very distinguished chief judge of our district court who i miss, she's deceased, norma johnson was a great human being.
and fair-minded jurist. when she read the piece in brill's content, i was then subject to a pretty thorough going. i personally. investigation into whether i had violated 6e. i hadn't. in the fullness of time it was vindicated. but you have to be very cautious. so i think perhaps bob mueller, mindful of that, said star made bone-headed mistakes talking to the media the best thing to , do is have a press spokesperson who never comments. >> one remark on that. it seems like there is no perfect answer to that. it is a dammed if you do end and damned if you don't. you are going to get hit no matter what your decision is. i very much want to thank the
>> next, live, your calls and comments on "washington journal ." and then newsmakers with rock long. after that, president trump meets in the oval office with senator chuck schumer and representative nancy pelosi to talk about government funding and the border wall. tonight, on q&a -- >> the american nazi party had
20,000 supporters and they came to rally at madison square garden. stormtroopers were giving the nazi salute next to a picture of george washington. that was for the george washington birthday. fascist movement associated with the phrase "america first." at theh churchwell looks history of the terms "america first" and "the american dream" in her book "behold america" tonight on c-span's q&a at 8:00 p.m. eastern. >> this morning, french news correspondent ld boozman and bbc donna who of the discussed the recent of people in britain and france and transatlantic relations. later, robert kurson talks