1 00:00:03,480 --> 00:00:07,560 Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every 2 00:00:07,640 --> 00:00:10,440 Speaker 1: day we bring you insight and analysis into the most 3 00:00:10,480 --> 00:00:13,399 Speaker 1: important legal news of the day. You can find more 4 00:00:13,480 --> 00:00:18,040 Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud 5 00:00:18,320 --> 00:00:22,240 Speaker 1: and on Bloomberg dot com slash podcasts. The second deadline 6 00:00:22,280 --> 00:00:25,560 Speaker 1: has passed and the Attorney General has ignored it. Attorney 7 00:00:25,560 --> 00:00:28,520 Speaker 1: General William Barr defied the Monday deadline imposed by a 8 00:00:28,600 --> 00:00:31,800 Speaker 1: House subpoena to provide lawmakers with the full text of 9 00:00:31,800 --> 00:00:34,400 Speaker 1: the Mullah report, and he is as he ignored the 10 00:00:34,440 --> 00:00:37,479 Speaker 1: deadline last week. What happens when the top law enforcement 11 00:00:37,520 --> 00:00:41,000 Speaker 1: official in the country ignores legal process. Joining me is 12 00:00:41,000 --> 00:00:44,600 Speaker 1: brad moss apartment Mark zad so Brad The Chairman of 13 00:00:44,600 --> 00:00:47,960 Speaker 1: the House Judiciary Committee, Jerry Nadler, has scheduled a vote 14 00:00:48,000 --> 00:00:51,600 Speaker 1: on Wednesday on whether to hold the a G in contempt. 15 00:00:52,440 --> 00:00:55,120 Speaker 1: If they do hold him in contempt and the House 16 00:00:55,200 --> 00:00:59,200 Speaker 1: also votes on contempt, Canada enforced the contempt citation on 17 00:00:59,280 --> 00:01:04,160 Speaker 1: its own by its inherent Contempt authority, So this the 18 00:01:04,200 --> 00:01:07,520 Speaker 1: honest answer is, yes, it can, but it's highly unlikely 19 00:01:07,600 --> 00:01:12,000 Speaker 1: they will. Congress has not relied upon its inherent contempt 20 00:01:12,000 --> 00:01:15,600 Speaker 1: authority in a criminal context since the nineteen thirties. It's 21 00:01:15,600 --> 00:01:17,200 Speaker 1: just something they don't do. This is a lot about 22 00:01:17,240 --> 00:01:20,160 Speaker 1: political posturing right now, and this is somewhat normal for 23 00:01:20,240 --> 00:01:23,080 Speaker 1: Congress and the executive branch when one party controls the 24 00:01:23,280 --> 00:01:25,120 Speaker 1: Oval Office and one party controls at least one or 25 00:01:25,160 --> 00:01:27,120 Speaker 1: two of the branches of Congress. We saw this with 26 00:01:27,280 --> 00:01:30,600 Speaker 1: Eric Holder during the Obama administration. This is all about leverage, 27 00:01:30,680 --> 00:01:33,800 Speaker 1: negotiating stanzas, and trying to get as much out of 28 00:01:33,840 --> 00:01:37,520 Speaker 1: the just Department as House Democrats can do. We'll see, 29 00:01:37,520 --> 00:01:40,000 Speaker 1: certainly the contempt vote. There will be a bunch of 30 00:01:40,040 --> 00:01:43,160 Speaker 1: political hyperbolean writer that comes out of it. What will 31 00:01:43,240 --> 00:01:47,240 Speaker 1: matter in the end is what change in legal position 32 00:01:47,400 --> 00:01:50,680 Speaker 1: the o J ultimately takes to try to de escalate 33 00:01:50,760 --> 00:01:53,760 Speaker 1: the situation, reduce tensions, and bring this to a point 34 00:01:53,760 --> 00:01:56,200 Speaker 1: where the two sides can find a consents. I assume 35 00:01:56,280 --> 00:01:59,840 Speaker 1: there'll be some additional information. House Democrats will budget, will 36 00:02:00,000 --> 00:02:02,760 Speaker 1: a bid on their spot, and DJ will do the same. 37 00:02:02,880 --> 00:02:05,080 Speaker 1: There's not going to be a criminal prosecution of this. 38 00:02:05,680 --> 00:02:08,720 Speaker 1: Do you think it may end up with Congress going 39 00:02:08,760 --> 00:02:13,440 Speaker 1: to a federal judge to enforce its subpoena. If they do, 40 00:02:13,520 --> 00:02:15,760 Speaker 1: it will be only in a civil context, which I 41 00:02:15,840 --> 00:02:18,120 Speaker 1: certainly expects some manner of a fight on this again, 42 00:02:18,160 --> 00:02:21,320 Speaker 1: just like just like we did had with Eric Holder 43 00:02:21,840 --> 00:02:25,720 Speaker 1: on the Fast and Furious documents. There's going to be um, 44 00:02:25,760 --> 00:02:28,440 Speaker 1: some legal wrangling and some fights in court about it. 45 00:02:28,480 --> 00:02:30,560 Speaker 1: And that's certainly, you know, the way the system is 46 00:02:30,639 --> 00:02:32,960 Speaker 1: expected to work. It's the way it's set up. And 47 00:02:32,960 --> 00:02:36,320 Speaker 1: I think that's part of the Trump administration's game planet. 48 00:02:36,360 --> 00:02:38,760 Speaker 1: They know they'll ultimately lose to some extent on the 49 00:02:38,840 --> 00:02:41,400 Speaker 1: law and on the merits, but they're dragging it out. 50 00:02:41,400 --> 00:02:44,320 Speaker 1: They're delaying things as long as they can to try 51 00:02:44,320 --> 00:02:48,080 Speaker 1: to push it off until after. Holder was the first 52 00:02:48,120 --> 00:02:51,600 Speaker 1: Attorney General I believe to be held in contempt of Congress. 53 00:02:51,680 --> 00:02:54,160 Speaker 1: So if bar is the second, have we reached a 54 00:02:54,200 --> 00:02:58,519 Speaker 1: point where, you know, congressional subpoenas don't really matter, where 55 00:02:58,680 --> 00:03:01,240 Speaker 1: the process is just to ignored by the highest law 56 00:03:01,320 --> 00:03:05,400 Speaker 1: enforcement official in the country. I think it speaks somewhat 57 00:03:05,440 --> 00:03:08,000 Speaker 1: to the d function of the subpoena process. Yeah, I 58 00:03:08,000 --> 00:03:10,160 Speaker 1: mean it's gay. I mean there's always been politics to 59 00:03:10,240 --> 00:03:13,639 Speaker 1: play with any you know, Congress in presidency. That's not new, 60 00:03:13,680 --> 00:03:15,800 Speaker 1: that's nothing out of the ordinary, but I think it's 61 00:03:15,840 --> 00:03:20,000 Speaker 1: become so tribalistic and the use of congressional oversight has 62 00:03:20,040 --> 00:03:23,520 Speaker 1: gotten to such a ridiculous point of over politicization that 63 00:03:23,639 --> 00:03:25,840 Speaker 1: you have what you've gotten out, just as you know, 64 00:03:25,880 --> 00:03:29,639 Speaker 1: I think holding Eric Holder in contempt was just political posturing. 65 00:03:29,680 --> 00:03:32,839 Speaker 1: I think it's the same year with William Barr. It's 66 00:03:32,840 --> 00:03:36,360 Speaker 1: really more about negotiating tactics and prepping you know, talking 67 00:03:36,400 --> 00:03:39,800 Speaker 1: points for you know, yours, for your five minutes segments 68 00:03:39,840 --> 00:03:42,360 Speaker 1: on cable news at night, more than so that it 69 00:03:42,440 --> 00:03:45,320 Speaker 1: is about any true legal position. And like I said, 70 00:03:45,320 --> 00:03:47,400 Speaker 1: in the end, there'll be more documents of will come out. 71 00:03:47,560 --> 00:03:50,680 Speaker 1: This is all politics. Let's talk a little bit more 72 00:03:50,760 --> 00:03:55,640 Speaker 1: broadly about the subpoenas and President Trump's vow to fight 73 00:03:55,680 --> 00:04:00,560 Speaker 1: every congressional subpoena. One of the articles of impetement against 74 00:04:00,640 --> 00:04:05,280 Speaker 1: Richard Nixon was ignoring subpoena's basically, will this lead to 75 00:04:05,720 --> 00:04:12,520 Speaker 1: impeachment proceedings and perhaps give Congress more push for enforcing 76 00:04:12,560 --> 00:04:17,000 Speaker 1: their subpoenas. I certainly think, you know, if the president 77 00:04:17,080 --> 00:04:19,400 Speaker 1: maintains this current position, which I think is you know, 78 00:04:19,480 --> 00:04:23,159 Speaker 1: completely ridiculous, Yeah, I think it'll it'll egg on certain 79 00:04:23,200 --> 00:04:26,039 Speaker 1: Democrats to push a little harder towards appeachment, if only 80 00:04:26,320 --> 00:04:28,839 Speaker 1: to try to exercise some true oversight. I mean, look, 81 00:04:29,040 --> 00:04:32,600 Speaker 1: every Congress will overreach, will always get a little excessive 82 00:04:32,760 --> 00:04:35,159 Speaker 1: in their attempt to scrutinize an opposing party in the 83 00:04:35,160 --> 00:04:37,680 Speaker 1: White House. But never have I seen a presidency so 84 00:04:37,760 --> 00:04:41,440 Speaker 1: completely and categorically refused to apply with anything this whole. 85 00:04:41,480 --> 00:04:44,320 Speaker 1: We're not going to comply with any Subpoena's nonsense. It's 86 00:04:44,360 --> 00:04:47,000 Speaker 1: just not how the system works. So you know, like 87 00:04:47,000 --> 00:04:48,400 Speaker 1: I said, a lot of us is poppic. A lot 88 00:04:48,400 --> 00:04:50,720 Speaker 1: of its delaying things, trying to push off through oversight 89 00:04:50,800 --> 00:04:53,360 Speaker 1: until after when the president does have to worry about 90 00:04:53,440 --> 00:04:56,119 Speaker 1: re election anymore. There will be a lot of fights 91 00:04:56,160 --> 00:04:59,760 Speaker 1: in court over it. The President team ultimately lose on 92 00:05:00,200 --> 00:05:02,680 Speaker 1: aspects of it, and they'll end up turning over documents. 93 00:05:02,720 --> 00:05:07,400 Speaker 1: This is just about delayed tactics, also defying requests by 94 00:05:07,480 --> 00:05:10,880 Speaker 1: Congress to have various people testify. Let's deal first with 95 00:05:11,040 --> 00:05:14,560 Speaker 1: the White House. Former White House counsel Don McGann, who 96 00:05:14,800 --> 00:05:19,720 Speaker 1: was one of the most notable people repeatedly mentioned in 97 00:05:19,760 --> 00:05:23,359 Speaker 1: the Mueller Report. Can the President now say, as he 98 00:05:23,400 --> 00:05:26,000 Speaker 1: has said that he doesn't want to let him testify. 99 00:05:26,279 --> 00:05:30,839 Speaker 1: Can he assert executive privilege when Don McGann has basically 100 00:05:30,880 --> 00:05:35,120 Speaker 1: testified in the Mulla Report. Yes, so my my view, 101 00:05:35,240 --> 00:05:38,960 Speaker 1: especially now that the even beyond McGann having simply testified, 102 00:05:39,000 --> 00:05:42,080 Speaker 1: but having that testimony outlined and repleases the public due 103 00:05:42,120 --> 00:05:45,480 Speaker 1: to Muller Report, as far as I'm concerned, waive the privilege. 104 00:05:45,480 --> 00:05:48,000 Speaker 1: But will the president is still try to argue that 105 00:05:48,040 --> 00:05:49,919 Speaker 1: he can still invoke it. Yes, Will he try to 106 00:05:49,960 --> 00:05:53,080 Speaker 1: delay things by doing so? Yes? Will he likely lose 107 00:05:53,120 --> 00:05:57,440 Speaker 1: in the end pretty much, But if he can kind 108 00:05:57,480 --> 00:06:01,000 Speaker 1: of pressure McGann to hold off, make McGan uncomfortable, and 109 00:06:01,040 --> 00:06:03,400 Speaker 1: make him wait till the presidents fought this legal war 110 00:06:03,839 --> 00:06:07,159 Speaker 1: over executive privilege, it delays the time frame for McGann 111 00:06:07,200 --> 00:06:10,920 Speaker 1: to ultimately testify. In the end, you know, Congress has 112 00:06:10,920 --> 00:06:13,599 Speaker 1: its leverage. It can bring over former officials like McGann 113 00:06:13,640 --> 00:06:17,120 Speaker 1: that can't bring on existing officials like William Barr. They can, 114 00:06:17,200 --> 00:06:19,840 Speaker 1: you know, can they can hold McGann in contempt. They 115 00:06:19,839 --> 00:06:22,480 Speaker 1: can try to find him and McGann might decide he 116 00:06:22,520 --> 00:06:26,039 Speaker 1: doesn't care what the President says, But ultimately again, more 117 00:06:26,080 --> 00:06:28,960 Speaker 1: than anything else, this is just trying to hold off 118 00:06:29,040 --> 00:06:34,039 Speaker 1: these guys testifying during trying to push it to just 119 00:06:34,080 --> 00:06:37,359 Speaker 1: about forty five seconds here. But McGann, who the President 120 00:06:37,400 --> 00:06:40,680 Speaker 1: has called him a liar basically what he said about 121 00:06:41,160 --> 00:06:45,920 Speaker 1: about trying to stop the investigation, the Muller investigation. So 122 00:06:46,040 --> 00:06:49,280 Speaker 1: if McGann wants to, he can testify before Congress. He 123 00:06:49,320 --> 00:06:52,880 Speaker 1: doesn't have to have the president's permission, correct, I mean, 124 00:06:53,000 --> 00:06:55,880 Speaker 1: I certainly think the McGann team could conclude that he 125 00:06:56,000 --> 00:06:58,880 Speaker 1: has the ability that there's the president that can't truly 126 00:06:58,920 --> 00:07:01,240 Speaker 1: prevent him from doing. Though now there might be some 127 00:07:01,360 --> 00:07:04,560 Speaker 1: legal wrangling over what he can discuss to lead, depending 128 00:07:04,560 --> 00:07:06,880 Speaker 1: on whether it's in the court flight or executive privilege. 129 00:07:07,040 --> 00:07:09,720 Speaker 1: He just got to worry about his own existing bar 130 00:07:09,720 --> 00:07:11,600 Speaker 1: our license picture. He isn't doing to break any ethic 131 00:07:11,680 --> 00:07:14,080 Speaker 1: about all right. Thanks so much, Brad. That's Brad Moss 132 00:07:14,080 --> 00:07:17,600 Speaker 1: of partner at mark Z. Thanks for listening to the 133 00:07:17,600 --> 00:07:21,000 Speaker 1: Bloomberg Law Podcast. You can subscribe and listen to the 134 00:07:21,000 --> 00:07:24,920 Speaker 1: show on Apple podcast, SoundCloud, and on Bloomberg dot com 135 00:07:25,000 --> 00:07:29,160 Speaker 1: slash podcast. I'm June Brosso. This is Bloomberg