Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcasts. It's not usually
Speaker 1: in the headlines when an Associate Attorney General resigns, but
Speaker 1: these days, when the supervision of Special Counsel Robert Mueller's
Speaker 1: investigation is the subject of congressional hearings, the importance of
Speaker 1: the departure of the third highest official in the Justice
Speaker 1: Department is clear. Rachel Brand is stepping down after less
Speaker 1: than nine months in the job. She'll be joining walmart
Speaker 1: as executive vice president of Global Governance. Joining me is
Speaker 1: Bradley Moss, a partner at Mark Sade brad Deputy Attorney
Speaker 1: General Rod Rosenston is the only government official with the
Speaker 1: legal authority to directly fire Mueller. Next in line after
Speaker 1: him was Rachel Brand, which is why so many of
Speaker 1: us have come to know her by name. Who is
Speaker 1: next in line after Rachel Brand? Absolutely so. The next
Speaker 1: person is right now the Solicitor General um And that's
Speaker 1: only because the line of secession technically would go to
Speaker 1: the U. S Attorney for Inficiation North Carolina, but that
Speaker 1: individual has not been confirmed by the Senate yet, so
Speaker 1: due to that technicality, the Solicitor General is currently next online.
Speaker 1: If Mr Rosen sign were fired or dismissed for any reason, now, um,
Speaker 1: if the President wanted to put someone in that position permanently,
Speaker 1: would there have to be confirmation by the Senate for
Speaker 1: the spot that Miss brand left, I would require that
Speaker 1: would require Senate confirmation. And it goes without saying, just
Speaker 1: as we dealt within Watergate, and just as we dealt
Speaker 1: with when Mr Rosenstein and others were putting their current positions,
Speaker 1: that Senators would absolutely ask about the context of the
Speaker 1: Special Council investigation and the extent to which these individual
Speaker 1: rules would be willing to uh counter an illegal order
Speaker 1: or an an unethical order to fire the Special Council.
Speaker 1: Democrats like Congressman Adam Schiff have been reading signals from
Speaker 1: the White House in recent weeks that Rosenstein is on
Speaker 1: the line he may be fired, ostensibly because of his
Speaker 1: part in signing off on the re reauthorization of the
Speaker 1: surveillance of Carter Page. As outlined in that Republican memo.
Speaker 1: Does the President need a reason to fire Rosenstein? That?
Speaker 1: Technically speaking, no, he is a political appointee. The President
Speaker 1: can fire Mr. Rosenstein just like any other political pointee
Speaker 1: at any time he wants, without cause. They serve at
Speaker 1: the pleasure of the President. But there would be an
Speaker 1: obvious political ramification and backlash if he were to take
Speaker 1: such an action, especially if he did it in the
Speaker 1: context of subsequently trying to fire the Special Counsel, would
Speaker 1: without question have political ramifications, which I don't think the
Speaker 1: President quite wants to deal with, specially leading up to
Speaker 1: the mid terms. Let's try to put ourselves in Rachel
Speaker 1: Brand's position. She's only been there nine months. Excuse me.
Speaker 1: NBC is reporting that she quit partially over fear that
Speaker 1: she might be asked to oversee the rush of probe.
Speaker 1: That's according to multiple sources close to her. That's NBC
Speaker 1: News just coming out with that about an hour ago.
Speaker 1: Does that seem more likely than that she's leaving for
Speaker 1: a great job. Yeah, I don't think anybody really believes
Speaker 1: with all sincerity that she simply left because it was
Speaker 1: a job that she couldn't pass up. There were obviously
Speaker 1: other factors, other considerations. She clearly was not comfortable with
Speaker 1: how the department was being run, the lack of proper staffing, uh,
Speaker 1: the amitistation said, problems getting enough people nominated, let alone
Speaker 1: a pointed and confirmed But also yeah, I mean, she
Speaker 1: had to be worried that if Rosenstein was fired, that
Speaker 1: she'd be placed in the position of having to oversee
Speaker 1: and possibly be ordered to dismiss us their mull And
Speaker 1: I don't think that's really a position she wanted to
Speaker 1: find herself in. She's a lifelong government lawyer. I don't
Speaker 1: think she reviewed herself as being that kind of player,
Speaker 1: and she didn't really want to tie her reputation to that.
Speaker 1: She was a rising star in the conservative legal world.
Speaker 1: She's worked for both Republican presidents and Democratic presidents, and
Speaker 1: it seems as if she was working her way up,
Speaker 1: and now she's sort of gone off into the private sector,
Speaker 1: perhaps ahead of time. Yeah, I certainly expect to see
Speaker 1: I mean, she's still young. I certainly expect to see
Speaker 1: her back in government service in the future. I think
Speaker 1: she'll make some money right now for a little while
Speaker 1: with Walmart and anyone else the private sector, But come
Speaker 1: another administration, whether it be Republican or demock Democrat, but
Speaker 1: probably Republican. I could see her being appointed to a
Speaker 1: position such as deputy Attorney General. She'll be back, brad. Um.
Speaker 1: Let's talk a little bit about the pressures that the
Speaker 1: Justice Department officials are under. For example Rod Rosenstein, everywhere
Speaker 1: he goes in in Congress wherever there are cameras following
Speaker 1: him continually. Um. And the pressure of the other people
Speaker 1: in the in the Justice Department with this hanging over
Speaker 1: their head, this smaller investigation. Yeah, the Justice Department to
Speaker 1: an extent, is used to the cuts contain Uh. They
Speaker 1: are often under the microscope and a lot of the
Speaker 1: investigation prostitutions they would bring. What's different here is the
Speaker 1: extent to one obviously implicates possibly the president or senior advisors,
Speaker 1: but also the extent to which the President, so routinely
Speaker 1: and so in such an inflammatory manner, will discuss it
Speaker 1: and talk about They are official effectively doing their job
Speaker 1: and trying to run a proper investigation while having their
Speaker 1: boss publicly criticized them for what they're doing in and
Speaker 1: of itself. And that can't be easy. Whether you're a
Speaker 1: civil servant or a political appointee that certainly is not
Speaker 1: a comfortable work environment which to operate while you're trying
Speaker 1: to simply do your job as you understand it and
Speaker 1: as you've been taking to do so. It's put the
Speaker 1: department in a bit of an unusual buying here. UM.
Speaker 1: I'm not surprised that there's the problem staffing, especially with
Speaker 1: the political point, because I don't think a lot of
Speaker 1: credible and qualified individuals want to tie their name to this,
Speaker 1: not knowing what the president will ultimately do at the
Speaker 1: end of the day. About a minute here, but it
Speaker 1: seems as if it might be because of all the
Speaker 1: publicity about the possibility of firing Rod Rosenstein, much like
Speaker 1: the publicity of firing Rex Tillerson and Jeff Sessions, that
Speaker 1: it might be that the President is less likely to
Speaker 1: fire him at this point. I think I think that's
Speaker 1: a valid, valid, and more very likely position. At at
Speaker 1: this point, I don't think he really wants to deal
Speaker 1: with not only the ramifications of how it would damage
Speaker 1: him in the public relations in the in the PR sense,
Speaker 1: but the idea of who would take that spot, who
Speaker 1: have any real credibility qualification would be willing to step
Speaker 1: into that spot at that point, knowing everything that's going
Speaker 1: on and wanting to go to the cluelin process of
Speaker 1: getting confirmed, and then still know at the end of
Speaker 1: the day that your boss will possibly chastise you on
Speaker 1: Twitter and you can't respond. So I think you have
Speaker 1: to take that into consideration. I think the President's probably
Speaker 1: helped back, not because I really want peop, because he's
Speaker 1: got no other choice. Thanks so much as always for
Speaker 1: being here. That's Brad Moss. He's a partner at Mark Say.
Speaker 1: The saga of the dueling memos continues. It's been ten
Speaker 1: days since President Trump declassified and allowed the release of
Speaker 1: Republican House intelligence memo that alleged bias and misconduct by
Speaker 1: the FBI and Justice Department in their surveillance of former
Speaker 1: Trump campaign associate car to Page. House Democrats have been
Speaker 1: trying to have their own memo that counters Republican allegations
Speaker 1: released to the public, but on Friday, the White House
Speaker 1: formerly notified them that President Trump was unable to declassify
Speaker 1: the Democratic memo because it contained quote numerous properly classified
Speaker 1: and sensitive passages. During an interview with CBS has faced
Speaker 1: the Nation. Democratic Congressman Adam Shift the rank key member
Speaker 1: of the House Committee said the FBI had already reviewed
Speaker 1: their document and criticized the president's refusal to release it.
Speaker 1: The hypocrisy of this just kind of reaches out and
Speaker 1: grabs you by the throat. Here, the Republicans write a
Speaker 1: memo which the FBI quite accurately describes as misleading and
Speaker 1: omitting material facts. The Department of Justice says it would
Speaker 1: be extraordinarily reckless to release this. Uh and what does
Speaker 1: the president do? He says, I'm going to release it
Speaker 1: before I even read it, how to present I'm gonna
Speaker 1: release it. This is a president who puts his own
Speaker 1: personal interest above the national security interests of the country.
Speaker 1: My guest is Jimmy Garule, professor at Notre Dame Law School.
Speaker 1: Jimmy Trump overroad Justice Department objections when he permitted the
Speaker 1: release of the Republican memo without redactions now in decline
Speaker 1: to classify the Democratic memo. There was, along with the
Speaker 1: letter from the White House Council, letter signed by Deputy
Speaker 1: Attorney General Rod Rosenstein and FBI Director Ray laying out
Speaker 1: portions it considers too sensitive to make public. So what's
Speaker 1: your reaction to the different treatment of the two memos,
Speaker 1: Is there a basis for it? Well, they're certainly being
Speaker 1: treated differently. And with respect to the noon As Memo,
Speaker 1: the both the FBI and d O J the Department
Speaker 1: of Justice had concerns that the noon As Memo would
Speaker 1: would disclose classified information. And despite those objections and very
Speaker 1: strong objections by those two departments, the President disclosed the
Speaker 1: noon As Memo. Nonetheless, now with respect to the what
Speaker 1: I referred to as the Shift Memo, the presidents doesn't
Speaker 1: appear to be or now appears to be very concerned
Speaker 1: about about national security information and is refusing to disclose
Speaker 1: it based upon those grounds. And so there's a little
Speaker 1: bit of hypocrisy here with respect to the treatment of
Speaker 1: the noon As Memo and the treatment of the of
Speaker 1: the Shift Memo. So, but the Democrats have said that
Speaker 1: they're willing to work with the FBI and the Justice Department.
Speaker 1: Is that the way to go they should work with
Speaker 1: them and have certain parts redacted. Well, well, certainly, I mean,
Speaker 1: if there are some legitimate concerns that the Shift Memo
Speaker 1: would disclose classified information, then it's certainly incumbent upon Adam
Speaker 1: Shift to meet with both of those agencies to determine
Speaker 1: what the specific problems are and try to address those
Speaker 1: with respect to redaction or even if necessary, deletion of
Speaker 1: certain portions. But it's important that the Democratic Memo come
Speaker 1: out in pursuit of transparency and fairness. So now it's
Speaker 1: been ten days since President Trump declassified the news memo.
Speaker 1: What has the impact been? Well, I think ultimately, I
Speaker 1: think there are many that would conclude that that it's
Speaker 1: been a flop. The President maintained after the noon Ast
Speaker 1: Memo was released that it it to only vindicated him
Speaker 1: with respect to both the Russia investigation and claims of
Speaker 1: obstruction of justice, and certainly it has not had had
Speaker 1: that effect at all. In fact, I would argue that
Speaker 1: the noon As Memo actually supports the legitimacy of the
Speaker 1: Russia investigation and the credibility of the Russia investigation, because
Speaker 1: it establishes that carter Page was on the radar screen
Speaker 1: of the FBI as early as two thousand thirteen, well
Speaker 1: before the Trump campaign, and the face of warrant wasn't
Speaker 1: issued with respect to uh carter Page until I think
Speaker 1: October of two thousand and sixteen, after he had left
Speaker 1: the Trump campaign, so he had been on the radar
Speaker 1: screen uh by the FBI for a number of years
Speaker 1: with respect to concerns that he was possibly a foreign
Speaker 1: agent of the Kremlin. Is it a problem, Jimmy that
Speaker 1: most people are not reading the full memo or they
Speaker 1: would see that it's about Carter page and doesn't mention Trump.
Speaker 1: But most people are getting their news from other people's
Speaker 1: interpretations of it, so they're not looking at the facts. No,
Speaker 1: that's a problem, There's no question about it. Because again,
Speaker 1: if you're just taking on face value claims the President
Speaker 1: Trump is making, or or claims that are being advanced
Speaker 1: arguments are being advanced by by the republic by the Republican,
Speaker 1: you're obviously going to get a very very slantid view
Speaker 1: of the evidence. And so again this underscores the importance
Speaker 1: of the of the Shift Memo being disclosed, because I
Speaker 1: think it's clear that that what's contained in that memo
Speaker 1: is going to serve as a strong counterpoint and counter
Speaker 1: argument to to the noon As Memo. So the Shift
Speaker 1: Memo is ten pages, so perhaps less people will even
Speaker 1: read that memo. But the argument has been made by
Speaker 1: by some, even Democrats, that that it would be better
Speaker 1: to just have dropped this, let it alone. Whatever damage
Speaker 1: was done was done, and just move on and not
Speaker 1: make this an issue a continuing issue. Right, Well, I
Speaker 1: think that they're certainly merit to that because with respect
Speaker 1: of the noon As memo, what it One of the
Speaker 1: things that it revealed, of course, was the existence of
Speaker 1: this face A want, this electronic surveillance national security want
Speaker 1: on carter page, and those are those are supposed to
Speaker 1: be kept secret because of concerns that they're going to
Speaker 1: tip off the target and they may disclose sources and
Speaker 1: methods of collecting national security information. And so if there
Speaker 1: is this kind of continuing battle between the memos and
Speaker 1: and face A one, information is disclosed. In the end,
Speaker 1: this is going to damage and undermine national security. That's
Speaker 1: going to be the that's going to be the injury,
Speaker 1: the ultimate damage with respect to this type of activity.
Speaker 1: So it's got to stop. But unfortunately we're hearing from
Speaker 1: represent n if he has more memos that he's flating
Speaker 1: on disclosing in the near future, and so this battle
Speaker 1: of the memos can continue, uh for the next several months.
Speaker 1: Do you believe that the FBI has really taken a
Speaker 1: hit as far as the American people are concerned at
Speaker 1: the integrity of the FBI. Well, at least that if
Speaker 1: you follow and if you believe certain polls that have
Speaker 1: come out recently, there are a substantial, substantial percentage of
Speaker 1: Republicans that believe that the invested the Russia investigation, of course,
Speaker 1: which is being conducted by the FBI, is not being
Speaker 1: conducted in an affair and honest way. And so clearly
Speaker 1: this this campaign to to undermine the credibility and the
Speaker 1: integrity of the FBI is resonating at least with a
Speaker 1: substantial proportion of portion percentage of Republicans. And again that's
Speaker 1: very that's a real tragedy here that this premier federal
Speaker 1: law enforcement agency is taking the kind of hit regarding
Speaker 1: its integrity that it has taken over the last several months. Well,
Speaker 1: thanks as always for being here, Jimmy, that's Professor Jimmy
Speaker 1: Garola of Notre Dame Law School. Thanks for listening to
Speaker 1: the Bloomberg Law Podcast. You can subscribe and listen to
Speaker 1: the show on Apple Podcasts, SoundCloud, and on Bloomberg dot
Speaker 1: com slash podcast. I'm June Brosso. This is Bloomberg yea