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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. After spending five

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Speaker 1: contentious hours before a Senate panel yesterday, Attorney General William

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Speaker 1: Barr decided not to show up for a scheduled Judiciary

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Speaker 1: Committee hearing today in a protest over the ground rules

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Speaker 1: for questioning him. Chairman Jerry Nadler said history would be

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Speaker 1: the judge of everyone's actions. We will all be held

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Speaker 1: accountable in one way or the other. And if he

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Speaker 1: does not provide this committee with the information at demands

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Speaker 1: and the respect it deserves, Mr Barr's moment of accountability

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Speaker 1: will come soon enough. Nadler says he'll seek as contempt

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Speaker 1: citation against Bar if he doesn't relent within a few days.

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Speaker 1: Joining me is former federal Prosecutor George Newhouse. Have theodora oranger? George?

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Speaker 1: It seems like there's been a bit of overreaction on

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Speaker 1: both sides. First of all, you have the top law

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Speaker 1: enforcement official not being willing to answer questions from attorneys,

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Speaker 1: and then you have Nadler, who could have changed the

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Speaker 1: rules in some respect, and Democrats could have given their

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Speaker 1: time to one Democrat to do questioning. I mean, does

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Speaker 1: it seem like there was a better way to do

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Speaker 1: this during this it seems like this is classic politics

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Speaker 1: and a confrontation that really is sort of outside the

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Speaker 1: judicial system. You're absolutely correct. There's really no reason that

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Speaker 1: the Attorney General camp Field questions from staff attorneys, but

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Speaker 1: they seem to be very focused on that kind of

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Speaker 1: protocol and politeness. Now, Nadler says, the Committee may issue

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Speaker 1: a subpoena to bar but what will a subpoena really do?

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Speaker 1: The House has already authorized a subpoena to the Justice

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Speaker 1: Department to get an unready acted version of Mueller's report

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Speaker 1: as well as the underlying evidence. The Justice Department is

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Speaker 1: just refusing to comply with that. So what can subpoena do?

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Speaker 1: Well somewhat iran because it's normally the Department of Justice

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Speaker 1: that serves as the enforcement mechanism when Congress issues a

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Speaker 1: subpoena that is not honored by the recipient. Here the

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Speaker 1: Attorney Journal the United States. So it's a little unclear.

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Speaker 1: They can issue the subpoena. If the Attorney General doesn't

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Speaker 1: show up or refuses to answer questions from any one

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Speaker 1: other than the members, they can hold him in contempt

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Speaker 1: of Congress. But to enforce it they have to go

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Speaker 1: to the courts, and that requires attorneys again, typically Department

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Speaker 1: of Justice attorney. So really there's a quagmire conundrum here

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Speaker 1: that we need to get over. It's just a political play,

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Speaker 1: to be honest with you, it just seems as if

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Speaker 1: Congress doesn't really have the power it needs to do

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Speaker 1: an investigation if the so far the witnesses don't want

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Speaker 1: to show up. Well, remember the only they can subpoena

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Speaker 1: the fact witnesses, and they can also subpoena presumably Mr Muller,

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Speaker 1: But commanding the attorney generally amounted states to appear and

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Speaker 1: answer questions according to the ground rules of the Congressional Committee. Um,

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Speaker 1: that may be a power that will see whether they

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Speaker 1: have that true to exercise. Well, that's something the courts

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Speaker 1: can ultimately decide upon. If the House were to start

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Speaker 1: impeachment proceedings, would they have any more authority to get

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Speaker 1: information or to get witnesses to testify, good question. Don't

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Speaker 1: know the answer to that, but yes, they would certainly

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Speaker 1: have the ability to subpoena evidence, including witnesses, just as

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Speaker 1: the prosecutors doing the grand jury. They can bring witnesses

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Speaker 1: and documents before the committee. And again, the real issue

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Speaker 1: is when you're dealing with two coequal branches and both

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Speaker 1: are taking a position refusing to compromise, who gets to

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Speaker 1: adjudicate that dispute? I suppose the courts It is a

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Speaker 1: catch twenty two and in a lot of instances. Now,

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Speaker 1: as far as Mueller testifying, yesterday, Jerry Nadler said he

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Speaker 1: hopes to have Mueller testified before the committee on May fifteenth,

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Speaker 1: but they're working it out with the Justice Department. Since

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Speaker 1: Muller is a private citizen, does he really need approval

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Speaker 1: from the Justice Department or can he just agree to testify? Well,

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Speaker 1: except that he would be Muller would be suppoened in

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Speaker 1: his capacity as special counsel, so as he would would

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Speaker 1: be appearing in connection with and through his association with

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Speaker 1: the Department of Justice. So I think his role would

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Speaker 1: be treated the way any attorney in the department, all

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Speaker 1: the way up to the Attorney General. He's not. He's

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Speaker 1: not just a normal back witness. Even though he probably

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Speaker 1: has returned to we're ready to return to a private practice.

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Speaker 1: He might have been ready to return a while ago. Now,

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Speaker 1: let's just turn to bars testimony for a moment. Did

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Speaker 1: it seem to you as if there has been a

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Speaker 1: falling out between Barr and Mueller? He called the letter

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Speaker 1: that he wrote, said it couldn't have been written by

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Speaker 1: Mueller was too snitty. Whatever that means. I love that.

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Speaker 1: I love that expression. Well, he means it was. It was.

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Speaker 1: It was taking exception to some of the things that

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Speaker 1: the Attorney General did. I was somewhat ironic because obviously

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Speaker 1: a four page summary of a four page document is

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Speaker 1: not going to be able to capture, quote, the full

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Speaker 1: context of the underlying report. That's an impossibility. Yeah, the

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Speaker 1: speculation is, and I'm I'm of this camp that it

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Speaker 1: was written by staff members and Mueller agreed to send

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Speaker 1: it over. They then apparently had a phone conversation in

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Speaker 1: which Jurney General said to his longtime friend Bob Mueller, Look,

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Speaker 1: if you had an issue with my letter, why didn't

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Speaker 1: you just call me on the phone and we could

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Speaker 1: have discussed it. And we know why don't we, Bob,

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Speaker 1: he wants it in writing, he wants a record of it, right, correct? Um? So,

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Speaker 1: so George, now today how Speaker Nancy Pelosi said Barr

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Speaker 1: was not telling the truth to Congress and that's a crime.

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Speaker 1: Only a minute here, But it's a high bar for perjury.

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Speaker 1: Explain what you would have to prove in a perjury case. Well,

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Speaker 1: perjury is not just that you made it a false

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Speaker 1: or an incorrect statement, but that when you made the

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Speaker 1: false teement, you were aware that it was a lie

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Speaker 1: and untrue and you intended to do that. So it's

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Speaker 1: an element of wilfulness. It's extremely right, you're you're right.

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Speaker 1: It's extremely hard to prove. And again the irony is

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Speaker 1: to prosecute the crime of perjury would require involvement by

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Speaker 1: the Department of Justice, which they may be reluctant to

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Speaker 1: proceed against the Attorney General. So you have this this

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Speaker 1: institutional impasse. Yeah, I would think it's a it was

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Speaker 1: a lot of nitpicking, but you know, I think that

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Speaker 1: that's really a low bar here. If you if you

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Speaker 1: tried to that. Thank you so much, George. That's George Newhouse,

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Speaker 1: former federal prosecutor, Senior attorney at Theodora Oranger. Thanks for

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Speaker 1: listening to the Bloomberg Law Podcast. You can subscribe and

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Speaker 1: listen to the show on Apple Podcasts, SoundCloud, and on

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Speaker 1: bloomberg dot com slash podcast. I'm June Brosso. This is

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Speaker 1: Bloomberg