Checks and Balances Podcast Episode 2

Paul Rosenzweig: Hello, and welcome to Checks and Balances: Threats to this American election. 

This weekly podcast is sponsored by Checks and Balances, a group of conservative and libertarian lawyers dedicated to bolstering the rule of law and opposing the degradation of American legal norms. 

My name is Paul Rosenzweig, and I'm your host.

 Joining me today as my guests on the podcast are Ryan Goodman from NYU Law School, and Stuart Gerson from the law firm Epstein Becker & Green. 

Our topic today is the Department of Justice, and more specifically, what the department should do, or should not do, with respect to prosecution decisions in the run up to the November election.

 At checks and balances, we believe in the rule of law, the power of truth, the independence of the criminal justice system, the imperative of individual rights, and the necessity of civil discourse.

We believe that these principles apply regardless of the party or the person in power.

 America is assuredly a government of laws, not men, and our goal in creating checks and balances was to remind the nation that free speech, a free press, separation of powers, and limited government are the bedrock of the American experiment.

We hope this podcast will advance the rule of law and defend the coming election.

 We want to make sure that as many Americans as possible understand what the law allows and what the law requires.

 Our hope is to make sure that all Americans who are legally entitled to vote, get the opportunity to do so.

And most importantly of all, our goal in creating this podcast is to counter the false narrative that is being advanced by some in the public space. 

This is the narrative that the American election is at risk. 

This is the narrative that the election is going to be a fraud. 

This is the narrative that says that the only legitimate result is the one where a particular candidate wins.

Fostering free and fair elections is not a partisan issue. 

It's not a right left issue. 

It's not a conservative or libertarian or liberal or progressive issue.

 It's an American issue.

 And so this podcast, my guests will be people who understand what the consequences of this election are, what the laws relating to the election might be, how the federal government will interact with the elections over the next coming months and in the aftermath, and in the end, there'll be people who be able to give our listeners the straight scoop on biased, fair, accurate, legal information about what the law entails and how to make sure that every legal vote counts. 

Our guests today are Ryan Goodman and Stuart Gerson.

 Ryan Goodman is the director of the Center for Human Rights and Global Justice at NYU Law school.

He is also a co-faculty director of the Center on Law and Security, and founding co-editor-in-chief of Just Security. 

He is the Anne and Joel Ehrenkranz Professor of Law, and a professor of politics and sociology at NYU. 

Stuart Gerson is currently a lawyer in private practice and a fellow member of Checks and Balances.

Previously he was appointed acting Attorney General of the United States during the early Clinton administration.

 After having served as President George H. W. Bush's appointee as assistant attorney general for the civil division of the Department of Justice.

 He's also served as an advisor to several presidents.

Gentlemen, welcome to the podcast and thank you for joining me.

Ryan Goodman: Thanks for having us on. 

Stuart Gerson: Thank you, Paul. 

Paul Rosenzweig: Our first effort is going to be to discuss a little bit about the news of the day before we dive into the substance of the Department of Justice.

 And there are two things that happened in the past week that I think warrant commentary and your reactions.

 Stuart, the first of those is the decision of the Department of Justice to substitute itself to represent President Trump in an ongoing defamation suit against him, by a woman named E. Jean Carol, who has accused him of sexual assault while he was a private citizen, and of defaming her by denying that the conduct had occurred and saying actually that she wasn't his type. 

If the department succeeds in substituting itself for the President, my understanding is that that might eventually result in the actual dismissal of her lawsuit.

 So, first off, tell us a little bit about how this happens.

Tell us about your experience in the civil division with other similar cases, and tell us what you think of the Department of Justice's decision to try and intervene. 

Stuart Gerson: Thank you, Paul.

 Let me say at the outset that the issue here is going to be, was the statement that the President alleged to have made of a defamatory nature.

 Something that was in the course of his official duties.

 Something that was in the interest of the government of the United States.

 The mechanism for evaluating all of this is the Federal Tort Claims Act.

 That represents the waiver of sovereign immunity in a limited sense.

Various torts, of a negligent nature can be the subject of government substitution and the ongoing representation of an individual who was a government official, who acted in the course of his or her official duties.

 The Tort Claims Act does not waive sovereign liability, for intentional torts, including defamation.

And so your original statement, about the dismissability of the action, if the government intervenes is accurate.

Historically, the Civil Division of the Department of Justice, which I headed, is the - one of its functions, is the administration of these requests for representation.

 And indeed it's routine on the part of even low ranking officials, all the way up to President Reagan, for example, with respect to the Iran Contra case and litigation that generated from it. 

And indeed I can think of several instances where, Congresspeople were represented, under the Tort Claims Act for allegedly having committed acts of defamation.

 But what they were talking about was things that had to do with foreign affairs, things that were within the realm of the government.

 What distinguishes the case of President Trump, and the allegation that he defamed a woman who claimed that he had raped her in the dressing room of a department store in New York, is that that subject has absolutely nothing to do with the affairs of the government. 

The matter existed, the underlying matter existed way outside of anything that the government or the President was responsible to do.

 And so, at some point a court is going to rule on this. 

 I would suggest respectfully that while there is plenty of precedent, for the government to substitute itself for governmental officials this isn't one of those cases, because the activity alleged has nothing to do with the official duties of the President. 

Paul Rosenzweig: So what happens then, Stuart?

 Assume that a court, this has been removed from state court to federal court, assume that the federal court determines that the President's alleged actions are not within the course of, within the scope of his employment. 

And it determines not to accept the Department’s representation of President Trump. 

Is that decision appealable in the federal system?

Stuart Gerson: Oh yes.

 I mean, it would be the denial of a motion to intervene under the Federal Rules of Civil Procedure, and it would proceed through the appeals process in the federal system.

Paul Rosenzweig: So we can anticipate that, at a minimum, the department's intervention here has served to appreciably delay, Ms. Carol's state suit, and that we will not see a comprehensive and final order from the federal courts until sometime after the election.

Stuart Gerson:  Well, that's actually absolutely right. 

You've anticipated what I was about to volunteer, Paul.

That will be the case as was the case with regard to Vance and Mazars, where presidential potential subjectivity to subpoena was decided, but ongoing processes will delay any of that until after the election. 

It's all part of a strategy on the part of the President and the Attorney General, we'll talk about other areas, but it includes the Durham investigation, false statements about the vulnerability of mail-in balloting and a host of things where this administration is attempting to affect the outcome of the election.

Paul Rosenzweig: Well, that is unfortunate.

 It's unfortunate in terms of the election, but it's particularly unfortunate for Ms. Carol whose day in court is now going to be delayed.

Let's turn to the second of these and let me bring you in, Ryan, to this. 

Nora Dannehy, was essentially the Deputy to John Durham.

Now we're going to spend most of our time talking about the Durham investigation today, which is an investigation into the investigation of President Trump's connection to Russia. 

But let's start with a simple thing. 

Ms. Dannehy has resigned her post without giving any explanation, any public explanation.

 Public report suggests that it may have been related to her disaffection with the course of the Durham investigation, but we don't know for sure. 

So Ryan, what are we to make of this, and based on your experience, how rare is it for people like Ms. Dannehy to resign in protest?

Ryan Goodman:  So, listeners might think it's commonplace because it's occurred so many times in recent months with the Trump administration, but it's exceedingly rare for a senior attorney on a case to suddenly resign, not just withdrawal from the case, but actually resign from the Justice Department.

 And suddenly, and without any advance warning without any transitions set up, and that alone is a red flag.

 That she would do so.

 And then we do have the reporting from the Hartford Courant that she did so in part, out of protest that the office was being pressured to develop and present a report before the election. 

And there are also other kinds of telltale signs here, which is apparently she submitted her letter of resignation on Thursday night, and in the letter, it does not say, for family reading or other explanations as to why she was stepping down, which is normally the way that one would do it in order to avoid, or minimize, a negative press or the media and the public thinking that it had to relate to something more potentially corrupt.

So, you know, that's another piece of it. 

So the very fact that she has resigned midstream of this case, and there is reporting that it was done on the basis of a protest, is highly significant and it suggests something elicit is going on with respect to the pressure that Bill Barr as attorney general appears to be placing on the Durham investigation to produce something like a report at a minimum, before the election, which is also then corroborated by New York Times and Washington Post reporting that says that this pressure is happening right now. 

Paul Rosenzweig: So Ryan, I've seen other reports suggesting that one thing that might happen in the near future would be for Congress to call Ms. Dannehy as a witness and ask her some questions about a resignation.

 How much of what has happened inside the investigation would she legally be able to talk about were she called as a witness?

Ryan Goodman:  So I think it would be very difficult for her to talk about some of the details, and we saw this with the resignation of the U.S. Attorney for the Southern district of New York.

Where the transcript is available, but he's not going into many of the details and part of that is because the Justice Department is not going to allow him to do so.

 So the agreement from the Justice Department for him to testify was under those kinds of conditions. 

So there's that part of it, but on the other hand, she might well be able to talk about pressure that she got from main justice, because that wouldn't be about necessarily the details of the investigation, and that could be crucial.

 Or another piece of this that is very important is that she has stepped down. 

So that potentially frees her up to talk to the public or to Congress directly.

And we have a very good example of that, which is the senior lawyer on the Roger Stone investigation.

 Jonathan Kravis, not only withdrew from the team, but then resigned from the Justice Department out of protest for the pressure from Bill Barr and wrote an op-ed in the Washington Post.

 Because he was then free to discuss those kinds of details about the mishandling and the public corruption, that was behind the scenes of changing the Stone sentencing. 

Paul Rosenzweig: So one last news question, and this one's for you, Stewart, before we get to more detailed discussion.

 I was in the department in the '80s and the '90s, and in my experience, I never saw anything like this at all. 

You were, you've been in the department, back in the day, and have studied since then.

Did you have any personal experience with any senior prosecutor ever quitting like this from a case up until the Trump administration? 

Stuart Gerson: I can be even more categorical than Ryan simply because I'm older, and as you say, go back a lot farther even to the time of Watergate.

 But particularly when I was the Head of the Civil Division, we represent the government and most of the affirmative lawsuits that are brought against government policy, some of which are very noxious to the lawyers who work on these cases. 

But I will tell you that of the literally thousands of controversial cases, that the civil division handled under my administration I never had a lawyer who was assigned the case, asked to leave the case.

 They all represented that we were making a good faith defense of statutes or policies of the government. 

They might not agree with them.

 Just as a judge might not agree with something that he or she upholds.

 And so this, as Ryan correctly says, is a very unique matter.

I doubt whether the woman who resigned, Ms. Dannehy, will be able to speak in any detail about what went on.

 And indeed that problem relates to something that I think you're going to ask about in a while.

 And that has to do with commentary on ongoing investigations.

 The Durham investigation itself is a dubious proposition and we can discuss how and why that's the case.

I would not be happy about this resignee, if you will, talking about the case any more than I'm happy about Durham and Barr talking about it. 

This is something that should not be allowed to infect the election in any regard, but I will say that her resignation raises more than a red flag.

It shows the improper intervention of the Attorney General.

Paul Rosenzweig:  Indeed Stuart, what you say brings up one of the ongoing themes of this podcast, which, is in general, I am of the view that you do not defend norms of behavior by breaking those norms. 

You defend those norms by continuing to adhere to them.

And so like you, I too would be - would find it problematic if Ms. Dannehy were to break the norms of behavior by speaking to issues that would not normally be public.

 Which allows us, I think, to turn to the substance of our discussion, which is looking at the Department of Justice and what it does or should do with respect to prosecution decisions and then a run up to an election. 

Obviously the context for our discussion today is the ongoing investigation being conducted by the Department of Justice under the leadership of U.S. attorney John Durham.

 Durham is investigating how it is that the FBI came to investigate the Trump campaign in 2016.

 As such, it is basically an investigation of an investigation. 

The origins of that investigation have been examined by others, including the Department of Justice's Inspector General, the Foreign Intelligence Surveillance Court, which is known as the FISA court, or the FISC, and the Senate Select Committee on Intelligence.

Thus far, the Durham investigation has produced one criminal complaint against a Department of Justice attorney who falsified an email relating to a FISA application. 

And as we've been discussing, one of Durham's deputies resigned last week under what I think it's fair to say are obscure circumstances.

Nonetheless, many Trump supporters expect more from the investigation.

 They expect to see criminal indictments of others before the election. 

Democrats expect the same thing, but they call it an unjustified October surprise. 

Attorney General Barr has refused to rule out action by the German investigation before the election.

Here's a clip of what he said earlier this summer, when he testified before Congress:

Attorney General Barr: "And in our system..."

Congresswoman Debbie Mucarsel-Powell: "Under oath. 

Under oath. 

 Do you commit to not releasing any report by Mr. Durham before the November election?"

Attorney General Barr:  "No."

Congresswoman Debbie Mucarsel-Powell (FL):  "You don't commit to that?" 

Attorney General Barr: "No"

Congresswoman Debbie Mucarsel-Powell (FL):  "So you won't go by Department of Justice policy that you won't interfere in any political investigations before the November election?"

Attorney General Barr: "We're not going to interfere. 

In fact, I've made them clear I'm not going to tolerate..."

Congresswoman Debbie Mucarsel-Powell (FL):  "But under oath, you're saying that you do not commit to not releasing a report by Durham."

Attorney General Barr:  "I'm not going to... any report will be in my judgment, not one that is covered by the policy and it would disrupt the election."

Paul Rosenzweig: All of that's really rather unusual. 

Those of us who've worked at the Department of Justice in the past, like Stewart and I, think of a traditional rule for the Department: that nothing to upset the election should be done within 60 or 90 days of voting. 

And also the traditional rule that prosecutors don't issue interim reports, they issue indictments or they close their investigations.

So Ryan, let me start with you.

You recently wrote an excellent lengthy article at Just Security.

 For our listeners, the webpage is justsecurity.org, in which you looked at some of the history of the DOJ policy against election interference.

 So, first tell us, yeah, what is the origin of that?

When did that policy start?

Ryan Goodman:  So, I think of it as two different policies. 

One policy is written down in memos from the attorney general, starting in 2008 and then reaffirmed every four years, which is that the DOJ should never publicly charge individuals or take any other overt investigative steps or disclosures with the purpose of influencing an election.

So if their purpose behind bringing for this type of action is to effect the outcome of the election that's a taboo, and we can also get into the details of why it's not maybe just a policy, but it's also backed up by law. 

Then the second one that I think of is the 60-day rule, and that you've just described, and the 60-day rule sounds similar, but it's not about having that purpose of affecting the election, but it says to basically not public charge or take any other investigative step or disclosure in the run up to an election that could affect the election.

 And it's sometimes referred to as an unwritten rule or norm. 

A good place that listeners could go to see its articulation is the Inspector General report on Former FBI director, James Comey's actions in the 2016 election, because there's a few pages in which the Inspector General articulates the so-called 60 day or 60 or 90-day rule. 

But I would say that rule we at least know it's been in existence for decades.

Some of the cases that I surfaced in the Just Security piece, were some paradigmatic cases in the 1992 presidential election.

 I should just add one other element that I didn't actually include in the Just Security piece, but I think it's worth noting as well in terms of like how far back in time we could go to the origins of this rule.

It came to me through a feeder, some reader feedback, which is for election law crimes there's a specific DOJ manual on the prosecution of election law offenses like voter registration fraud, and at least as far back as 1984 in that manual, it says in writing, that the federal government should not bring those kinds of election law related indictments before the election.

They should instead defer until after the election so as to avoid any kind of concerns that they might be affecting the election.

Paul Rosenzweig:  So tell me what's the justification for this?

 I mean, I get that you don't want to unduly influence the election idea very strongly, but one could also make the argument that the public is entitled to know about what they're doing voting on and who they're voting for.

And if a prosecutor has credible, thoughtful, important information about the potential criminality of a candidate or a candidate's party that transparency would call for them to make that clear, even if it's a week before the election or a month before the election.

 So what's the justification for keeping stuff secret?

Ryan Goodman: That's a great question, and one could imagine the rule would be written in another way, but this is the one that the Justice Department has settled on. 

And I think for a couple of very important reasons.

 One is that the Justice Department must be seen to be impartial, and be impartial, when it comes to elections.

So it should not be up to federal prosecutors across the country to decide for themselves what the voting public needs to hear before an election.

 And it could be very dangerous if we go down that path. 

And part of the problem is that especially if it's in the 60 days before the election, it doesn't give the defendant the opportunity to really defend themselves.

They don't get to have a trial in which they might be vindicated, or acquitted, or the indictment thrown out. 

And so it places this extraordinary power on the side of the federal government to potentially deep six candidates across the board.

 If the federal prosecutors think that that would be valuable, and they might also, that's the other problem here, rush towards providing that information.

And we wouldn't want that to affect or infect the decision making.

 And the thought is unless there's something urgent, so it's not like it's a categorical rule, but unless there's something truly urgent, why not just wait until after the election so as to be sure that you're not affecting the election.

 And, with the Durham investigation, it is very difficult, I would actually say impossible, to think of what would be the urgency of an investigation that's looking at actions that occurred four years ago to now suddenly try to produce an interim report, unless indeed they were acting with the motive of trying to affect the election. 

And then, we can get into, they might be running a foul of law, not just a policy, if that's their motive.

Paul Rosenzweig: So Stuart, let me bring you in here.

  I mean you were at the Department for a number of years, including being the acting Attorney General in the aftermath of the Bush to Clinton transition.

 How important is it from an institutional perspective for DOJ to maintain this policy of apparent neutrality?

Stuart Gerson: Well, I think that the department should maintain a policy of actual neutrality. 

The tradition of the Justice Department is to be apolitical, in fact, there are two ways, there are two departments of government that traditionally have played no role in elections at all.

 The Department of Justice and the Department of State.

 This administration is remarkable in the fact that the secretaries of both of those departments have been very active politically. 

I subscribe to everything that Ryan said, and if you want to see how noxious pre-election investigation reporting and indictments can be, we can cite two examples.

 So within memory, the most recent of course, is the deposed FBI director, Comey's conundrum, self-created conundrum, with regard to statements that never should have been made about ongoing investigations related to Hillary Clinton.

 Polls, tell us that had a decided negative effect on Mrs. Clinton's candidacy and electoral prospects with her never being charged of anything. 

The most egregious example of this, and Ryan and I have exchanged information on this subject in the past, occurred in 1992.

 When on the Thursday, before the Clinton, George H. W. Bush election, the then independent counsel, Lawrence Walsh, released an up dated indictment, an amended indictment, related to the Iran Contra case in which he superseded charges, not against the president, but against Casper Weinberger, who wasn't even in the Bush administration, who'd been an official in the Reagan administration, and did that on a few days just before the election, right? 

At the end of a week, the election the following Tuesday.

 There was a note that the independent counsel intentionally had cited in the indictment that mentioned that the Vice President might have been aware, never proved, of something that had to do with Iran Contra aid.

 There was an eight-point swing in the vote between Thursday and the following Tuesday, a negative vote effecting the outcome of the presidential election.

There can be no greater example of why this rule is an important rule. 

Paul Rosenzweig: Well, I mean that's a really good historical point.

 Ryan, can you site, are there any examples of cases in which the opposite has happened?

 In which information that DOJ has concealed was subsequently disclosed to the disadvantage of the public?

Or is it a one-way ratchet?

Ryan Goodman:  So, I just want to add one other piece before I answer that.

 Cause I think it's important data point.

 Specifically, on the question of what is the justification or rationale for the policy, when Attorney General Barr went before the Senate Judiciary Committee in his nomination hearings.

He strongly affirmed the policy, and it's a remarkable statement on his part because he's acting so much, it seems, in contradiction of it now.

 So Senator Cornyn asked him, quote, it's almost your exact question Paul, 

"Are there policies in place that try to insulate the investigation and the decisions of the Department of Justice and FBI from getting involved in elections?"

Barr: "Yes, Senator, there are."

 Cornyn: "And why is that?"

 Barr: "Well, obviously, because the incumbent party has their hands on, among other reasons, they have their hands on the levers of the law enforcement apparatus of the country, and you do not want it used against the opposing political party."

 So just, you know, have a remarkable example of it.

 I think there is a near miss example in history that misinformed the public, and that's the indictment of the Republican Senator from Alaska, Ted Stevens in 2008.

 It's a near miss because it is interesting that he was indicted 99 days before the general election.

 So it might in fact have been that the Justice Department was abiding by the 60 to 90 day rules because of that unusual timing. 

And then the indictment is, and he loses the election and the indictment is thrown out after November. 

So that's a fairly good example where he was not able to vindicate himself in time.

 And the public was, in a certain sense, misinformed because what hang over him was this criminal indictment by the Justice Department.

And that's another instance in which it shows you that how badly things can go if the Justice Department gets involved or takes actions that might affect the election.

 I also, agree with Stuart on the example from 1992, with Independent Counsel Walsh.

 That was, the supplemental indictment comes down on the Friday before the election.

There's no way for George H. W. Bush to truly defend himself in the maelstrom that enveloped him with the media over that weekend in time for the public to really suss out what the situation is. 

So I think that's another instance in which we can see the negative effects.

Stuart Gerson:  Ryan, and it's interesting.

 Ryan, it's interesting also to note that as was the case with Ted Stevens, where the indictment was thrown out in significant part because of misconduct on the part of the Department of Justice.

 So to was the superseding indictment thrown out with respect to the Lawrence Walsh situation.

 That indictment later was dismissed as alleging things that were outside of the statute of limitations.

 Something that the Independent Counsel clearly should've known about and clearly showed his intention to influence the election.

Paul Rosenzweig: Okay, so let's pivot a little bit from this, and ask not just about the policy against DOJ interference, but also about the general policies relating to coordination between the Department of Justice and the White House. 

Here's a clip of Mark Meadows, who's currently President Trump's Chief of Staff, talking about the Durham report and seeming to indicate that he has fore-knowledge of what Durham is investigating:

Maria Bartiromo (Reporter): "President Trump, we're all waiting on John Durham. 

The last time I was with you, Mark, you said, 'Look, people should go to jail. We are going to see some indictments.'

 Where are we on this? 

Do we know anything about John Durham and this criminal investigation and where this goes?"

Mark Meadows:  "Well, Maria, you've covered this for a lot longer than anybody else, and probably are better informed than anybody that I know in terms of this particular issue.

And we are still waiting on John Durham in terms of any visibility in the timeline.

 I don't have that.

 I can tell you additional documents that I've been able to review say that a number of the players, the Peter Strozoks, the Andy McCabes, the James Comeys, and even others in the administration previously, are in real trouble because of their willingness to participate in an unlawful act.

And I use the word unlawful.

 At best, it broke all kinds of protocols, and at worst people should go to jail as I've mentioned previously."

Paul Rosenzweig:  So, there you have it.

 The Chief of Staff has, by his own expression, seen documents that, in his view, bear on the criminality of a number of former FBI employees and/or members of the Obama administration.

And he's discussing it publicly on Fox news with Maria Bartiromo. 

So, Stuart, how unusual is it for the Chief of Staff to have access to that information?

 Let's leave aside discussing it in public, cause that's a whole nother kettle of worms. 

How unusual is it for him just to even know what the substance of an ongoing investigation looks like?

Stuart Gerson: Well, it's certainly unusual and it represents something else.

 I mean, look as a conservative, I believe very strongly in the unitary executive. 

There is only one executive but there are things that one does as a prudential matter to maintain independence and maintain the rule of law. 

Not only does it appear that the Chief of Staff had access to information that only could have come from the Attorney General, he's the only one who reports to the White House, but that the Chief of Staff is a sub alternative of the President himself. 

It suggests at least to me that not only the Chief of Staff, but the President himself has involved himself in the ongoing nature of the investigation.

You know, in Watergate, before there was a special council, before there was a special prosecutor the case, the original Watergate case was prosecuted by Earl Silbert and a team of lawyers, that were assistant United States attorneys.

 At no time did they leak anything.

 At no time did they consult with the President of the United States.

 At all times, they reported to Henry Peterson, who was the Career Head of the Criminal Division of the Justice Department.

 And a strict wall was maintained, even in a case involving the President himself.

 This is unprecedented. 

It's dangerous because what role can the President play in this?

 Only a political one.

And it suggests what the underpinnings of the investigation are. 

And we can talk a little bit about that and where it figures into Operation Crossfire Hurricane, and IG Horowitz's definitive report on the subject.

Paul Rosenzweig:  So Ryan, any history of this sort of coordination in the past?

Ryan Goodman: It's so hard to think of any. 

That it's, the way I think of it, as well as what Stewart mentioned, like the involvement, it suggests, the direct involvement of the President and the White House in the actual investigation in such a way that I think it does raise constitutional questions of the due process rights of these individuals, for example.

 But it's even hard to point to, like, I can't even think of a Law Review article that has discussed that or articulated the idea because it is so extraordinary. 

It's one of these instances in which we didn't know that we had the norm.

 We didn't think about the norm because I've never really been violated in this way.

So it's tough.

 It's hard.

 I'm hard pressed to come up with an example of it.

Paul Rosenzweig:  Yeah. The closest analogy that I can think of is the series of cases involving inappropriate command influence relating to military officers and the intervention of the President in a couple of cases and of senior command officials in other cases.

 It's just not done, is it?

Ryan Goodman:  That's right.

 In fact, I thought about that as well as the best analog that we do have a very clear rules of undue command influence in the military justice system.

 And that's in some ways, the way I think of it, it's surely we also have that in the regular justice system as well.

And to, in some sense, create these firewalls out of constitutional interests, not just out of good governance reasons.

Paul Rosenzweig:  So let me pivot and ask you both to kind of put on your crystal ball glasses, and look into the future.

 And ask you kind of a related set of like three questions.

The first is what do you think is going to happen in the next 60 days with respect to the Durham investigation?

 You know, that's predictive. 

How much confidence would you have in the independence and probity of whatever it is you predict is going to happen?

 And, what should be the average American's reaction, our listeners’ reaction, to whatever it is they might hear in the next, I guess we're down to 50 days now?

So we're well inside the zone here.

 Let me start with you Stuart and ask you, what do you think's going to happen and how, what, what should we make of it? 

Stuart Gerson: Well, first, I don't know what's going to happen, but it would not surprise me if there are further indictments and that there's a report that focuses, especially on misconduct or misfeasance, at least in the FBI itself. 

There are a number of instances where FBI policies and where FISA was not strictly adhered to. 

So it wouldn't surprise me.

 But what the think about it is going to be that sort of thing is peripheral.

 Under normal circumstances, it would be handled administratively. 

It wouldn't involve the courts in any way, but it would be in this case, what concerns me is the likelihood that it's going to be done to deflect the fact of that the Durham investigation itself is suspect.

 And let me say why. 

I mean, you alluded to it in the introduction. 

There have been at least three other inquiries into the initiation of the underlying investigation of the Russian connection.

All those investigations have made it clear that whatever misconduct or misfeasance there was on the part of the FBI did not deflect from the fact that there was cause to undertake the investigation that proceeded it.

 Indeed, the thing that causes the investigation to be undertaken with respect to Operation Crossfire Hurricane has been well disclosed.

It involves the Papadopoulos revelation about a tip from a foreign country about collusive activity. 

The country happened to be Australia. 

We know all these things. 

None of that is in any way influenced by the fact that there was some misconduct with regard to the completeness of FISA warrants.

Moreover, the select Senate committee on intelligence, bi-partisan that has dealt with this, has issued now five volumes of the report that not only vindicate that investigation, but amplify it, and is now showing that advantage was actually obtained willfully, by the Trump campaign.

So whatever we're likely to see is going to be a deflection from the underlying fact that our electoral processes were negatively affected by the actions of state sponsored individuals, and adverse state Russia.

 Done, I would say collusively, if not, conspiratorially in terms of the law by the Trump campaign.

And that's what people ought to think about it.

Paul Rosenzweig:  Ryan?

Ryan Goodman:  So I agree with everything that Stewart said. 

 I envision that the scenario in which this might come about is an interim report that is supposedly internal, that Durham hands to Attorney General Barr, and then Barr decides on his own to release it, to summarize it, to release it in highly selective redacted form.

And that's what we're presented to the public eye. 

And, do I think that they'll also be criminal indictments?

 I'm not so sure. 

Maybe, if they were actually able to track down the individual who leaked the Michael Flynn phone call with the Russian ambassador, cause I think there's real criminal liability there.

 But I think we're probably gonna get a report like that and it's going to be in the next - it's going to be before the election.

And I guess, I think, I think a couple of things that the American public should think about.

 So first is, there's whatever's in the actual interim report, or Durham report, and then what Bill Barr says about it, and what President Trump says about it.

 And we've already seen how Bill Barr has acted in the past, in misrepresenting the Mueller report, where a federal judge said that he had misrepresented it and distorted the report.

In which Bill Barr misrepresented the Inspector General's report on Crossfire Hurricane, and fact-checkers said that Bill Barr was providing the American public with very misleading statements about what the inspector general found. 

So I think that's one thing that people should be prepared for. 

The other one is just this strange, paradoxical, situation in which it's another form of projection in a certain sense.

 What do I think Bill Barr and President Trump will accuse former officials of having done?

 They will accuse them of having used the power of their office based on political bias to interfere with an election.

 And what will Bill Barr be doing?

 I think it is very likely that what he will be doing is using the power of his office to illicitly influence the 2020 election. 

And so that what the story is, and what the media tracks down and follows, are they going to be going over the substance of what Bill Barr is saying, or also what Bill Barr's actions themselves betray by violating these norms, potentially running afoul of U.S. Federal statutes prohibiting from taking this action and focusing on the process of that, not just the substance of the allegations that he brings forward. 

And just one last thought is I wish that they would actually bring forward whatever they found after the election.

 Do it in early November, after the election.

And then in that political environment, no matter who wins the White House, I think many more people will be receptive to sorting out what on earth happened, and figuring out whether or not the allegations are strong or not, or credible.

 And without any taint of this idea of politics having affected the production of the report.

Paul Rosenzweig: Yeah you left out a couple, when Mr. Barr was also a credibly found to have misstated the summary of the operation legend criminal investigations, and also recently, lied about, or misstated, let me say it, the results of an election fraud investigation in Texas, pretty substantially.

So I'm with you. 

I think that the American people should view anything that happens between now and the election with a healthy grain of salt, and with a skeptical eye, and with the realization that it is like as not to be intended to be an influence operation by the Barr Department of Justice, as it is to be a legitimate exercise of Department of Justice authority.

Stuart Gerson:  Paul, let me support what Ryan said with regard to post-election revelations.

 The thing that concerns me the most, not withstanding all the statements and misrepresentations that you've just described, or Judge Reggie Walton's rather caustic review of the administration and the Justice Department's candor, with regard to Mueller related documentation.

 Were the statements that Barr made at the outset of the Durham investigation.

Essentially saying that the Trump campaign was the victim of one the great crimes, echoing what the President has had to say. 

Something brought about by the Obama administration.

 He's prejudged the whole matter.

 And that doubtless is going to affect what the ultimate outcome is.

 A lot of people are raising questions about whether Barr and Durham are on the same page.

I mean, Durham has had some high credibility in the past. 

And the fact that nothing has happened so far may well be exemplary of the fact that there's no there, there, and that we may just see things that have to do with the FBI, not with the counter-intelligence.

 A vital problem that a Crossfire Hurricane, disclosed.

So we'll have to see about that. 

But, this question of prejudgment that infects the whole thing.

 Vocalized prejudgment.

 Prejudgment that we've heard.

 Is something that is of great concern. 

That's not what the Justice Department or the government ought to be about.

 On the other hand, we have certainly seen that there is reform needed in the FBI.

 I have a great deal of respect for Chris Ray, whom I've known for a long time.

I think he is attentive to these things, and I think it is fair for the public to know and understand, how the chief criminal investigative authority of the federal government is being managed. 

And that should be something that the next administration deals with.

Not this administration now.

Paul Rosenzweig:  Well on that relatively optimistic note, we're going to turn to a good news that makes the week a little better.

 Which is how I want to end each podcast.

 For me, good news is when the rule of law succeeds, despite the fact challenges these days.

 And today I offer you a twofer.

Recently, President Trump issued an executive order that purported to require the census to report a population number that did not include illegal aliens present in the United States. 

And to use that lower number for reapportioning Congress.

 Last week, a three judge panel rejected the President's order.

The ruling is a twofer, because first it upholds the rule of law.

 The requirement to count all persons is statutory and has been the rule for more than 220 years. 

And second, because two of the three judges on the panel were Republican appointees of President George Bush, which tells me that the rule of law works, and judges don't only vote for their party. 

And then on another smaller piece of good news, I learned today that there might be life on Venus.

 Which is really a how cool is that sort of good news.

 Anyway, that's a wrap for our show. 

Thanks for joining us.

 We'll be releasing a new show every Monday, this episode, and all future episodes are available on Apple, Spotify, Google, Stitcher, and anywhere else that you can download podcasts.

We hope you subscribe. 

We'll also archive the podcast at checks-and-balances.org, and if you want to find them on our website.

 As for feedback, we'd love to hear from you. The email is podcast@checks-and-balances.org with hyphens between the words. 

Thanks again to Ryan Goodman and Stuart Gersen for joining us on today's podcast.

I'm Paul Rosenzweig, your host.

 Remember as John F. Kennedy once said, "Certain other societies may respect the rule of force. Here, we respect the rule of law."