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The Lawfare Podcast

08:36 min | 2 years ago

"quinta jurassic" Discussed on The Lawfare Podcast

"I find that a little dubious for the simple reason that their whole thing is only seven pages long Muller reports spent a lotta time developing the facts for these. So so that would strike me as a hefty undertaking in such a short document not impossible though but but maybe not the most thorough way you would wanna approach a debunking of a pretty well established. A high profile. Factual report is another possibility That i wrote about early right after the motorsport report came out that i keep coming back to is the question of trump's intent. This is something that bar really hit on really hard. And his statements kind of previewing. the mole report. He said. Well look the president. Mostly cooperative with this investigation yet. He was stressed out. He was angry. He was frustrated and he did some things that lashed out but the fact that he cooperated overall the investigation. Underscore there is no corrupt intent or intend to obstruct And therefore that itself kind of i think defeats the these charges and part of me thinks maybe this memo support that analysis and reaches that sort of you about saying well. All of this cooperative conduct by the president is team balances out certain obstructive incidents. If that's the case then. I wonder whether that might be the opposite of agreement. From the perspective of the garland a justice department that they may be a little concerned that the way the justice department articulated that standard and the relevance of cooperation and other sort of non obstructive conduct in determinant corrupt intent might come back and bite them in the context of other obstruction investigations. You know there's nothing to stop them from issuing a new obsolete legal opinion about saying no in fact. We don't agree with us these. These sorts of issues aren't exculpatory in the way that this memo presented them although that that raises the question of. Why don't you go after trump. If you don't think it rises there may be the other constitutional arguments get him out of. Get them out of that. On your not commander view of those but there might be issues here were just simply takes a stand that the administration either affirmatively doesn't agree with and doesn't want to complicate its other activities or hasn't really reached a conclusion about just a few months of the administration. You in a justice department that already has kind of reputation for being fairly deliberative and there doesn't want to to get ahead of before they can develop a strong counter position so i would just put those out. There is to other possibilities speculating. What's in that section to quinta. Yes i just like to chime in nearby flagging a the washington post has some reporting on what at least part of the memo is about an. I'll just read the quote that the analysis quote focuses at least in part on the lack of a precedent for building an obstruction case around instances of the president using his executive power in ways that would normally be allowed such as the firing of james becoming fbi director so it seems like to some extent at least although perhaps not entirely they are focusing on the The article two argument. But this is a puzzle to me because so first of all let me say that the memo the oil c- memo and some of bars language in discussing his decision talked about his decision without respect the constitutional issues and that might mean the the bar on prosecuting a president while in office but it also might be the article two issues. You're talking about quinta and that and it also could even be. There's another question about whether the obstruction of justice statutes properly interpreted in light of article two should be should be construed to extend to the president. So i just don't i mean i don't know the basis for the washington post reporting is but the opinion could have been about as you said some of these things just would be. Barb article too could be about the plane. Statement rule could be about intent. We don't know. I wanna make one other thing clear. When i said that i thought the garland justice department agreed with the argument blow. I wasn't suggesting. And i don't mean to suggest that they were agreeing with redacted portions of the memo. I have no idea whether they do or don't they might. Well not i was talking about agreeing with the foia issues and the good faith representations of the career officials in the justice department sir jack before we wrap. I want to get your reflections on. Aol sees role in this memo in the first place and the propriety of it. It's gotten some criticism. Is this role. That oh elsie should be playing this kind of advising the attorney general about how to talk about this stuff right so this is a very unusual. Memo is written by the assistant attorney. General for the office of legal counsel stephen engle and in conjunction with edward callahan. Who's the principal associate. Deputy attorney general and it is unusual for Lcd involved because it involves an application of law to facts in connection with again not with the prosecution but on the question whether someone is prosecutable. So is this unusual yes. I'm not sure i've seen anything like this. Is it inappropriate. I don't think so. And here's why i. This falls clearly within own responsibilities. One of which is to under the relevant regulations to advise the attorney general about legal issues relating to his administration of the department and to advise him about legal issues and the a g can ask Elsa anything at once and second it's clear from the first paragraph of this of the opinion that oh. Lc was and the and the reds actually kind of contemplate this lc and the the deputy attorney general were spending a lot of time engaged with the special counsel on The legal issues related to the investigation of trump and the expert on the legal issues as opposed to the application. Perhaps of the law to the facts. That's why i think. The principal associate deputy attorney. General was was on the memo to. I think that that if i had to imagine how it was analytically. Divided wealthy was providing the legal analysis. And the the daggs office was applying law to facts. But they wrote it in one memo. I don't know why it's very unusual. I don't think it's inappropriate in any way but it is very unusual. I think jack. Jack's point about process here is a good one and brings up one other aspect of this. That was a little controversial. That's worth noting that jesse jackson emphasizing her opinion. Which is she made a big deal. Out of the fact that there was a series of email exchanges going around showing that this memorandum was developed at the same time as most of the other statements at the bar justice department released regarding the miller report because it will happen over a three day span for the twenty to twenty four th in part she says that's another alternative grounds for determine why it's not predisposition there for not covered by delivered a process privilege because it actually post dates their advice and she goes a little further that say it's not just that it post dates it but it's also that it clearly was being substantively developed by a variety of people including bar himself giving input and so it was not predisposed all meaning. He was presented to him for decision and said it was some. It involves his his reasoning. There you know. I think there's good reason for doubting that that's entirely accurate on the view. Certainly be a real problem for. We'll see opinions in the future. Because also opinions are often written after the fact after actual advice is given to relevant policymakers in that kind of memorialize them but it does underscore in interesting. Fact about this memo. That is actually not even just angle and o'callaghan who are the authors of this. Even though that the signatories there do appear to be other people and of course rod rosenstein who is kind of directed through There's also a couple other people that were involved in drafting the sort of memo and interesting only one. Other attorneys legal counsel of it was kind of the front office of the justice department. Brian rabbit a special assistant And one or two other people mentioned this exchange so another kind of oddity about a memo. That's really stands out that is admittedly handlings kind of unprecedented circumstances. We are going to leave it there. Jack goldsmith scott anderson quinta jurassic. Thank you all for joining us. 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