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On Mueller report, has Attorney General Barr been ‘forthcoming’ or ‘lawless?’

After Attorney General William Barr failed to appear before the House Judiciary Committee for a scheduled hearing on the Mueller report, House Democrats threatened to hold him in contempt. Meanwhile, Republicans argue Mueller’s investigation was biased against President Trump. Amna Nawaz talks to former Justice Department official David Rivkin and Neal Katyal, former acting solicitor general.

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  • Amna Nawaz:

    The attorney general's handling of the Mueller report and refusing to appear before the U.S. House has sparked a fierce political fight. But what legal and constitutional questions do his actions raise?

    I'm joined by David Rivkin. He served at the Justice Department and the White House counsel's office in the Reagan and George H.W. Bush administrations. And former acting Solicitor General Neal Katyal, he drafted the special counsel regulations under which Mueller was appointed.

    Welcome to both of you.

    And, David Rivkin, I want to start with you.

    You told my colleague earlier you believe coming is overstepping its authority right now. But the Mueller letter that was sent to Barr made clear that the — there were concerns over how Barr was summarizing the report and there's a conflict there.

    Who, other than Congress, can get to the bottom of that?

  • David Rivkin:

    Congress is entitled to form a policy judgment.

    As far as who is entitled to make a final decision about the presentation of the Mueller report, under the regulations my good friend Neal put in place, that responsibility belongs to the attorney general or special counsel, who is the inferior officer, Department of Justice.

    He submitted a report to the attorney general. The attorney general has been incredibly forthright and forthcoming in producing the full report very quickly, with few redactions.

    The summary was there. I wish we could take partisanship and mud-sling off the table. If somebody disagrees with your summary, let's have a serious discussion about it. Every American can look at the summary and the report that is widely redacted and reach their conclusions. There's just no reason to get into this mud-slinging.

  • Amna Nawaz:

    But setting Congress aside, Mueller himself raised concerns about the summary and the way that Barr was presenting the findings. So, isn't Congress within their authority to look within that?

  • David Rivkin:

    First of all, it's not clear, given the totality of conversations between Mr. Mueller and Mr. Barr what has really transpired?.

    But, look, I have spent nine glorious years in the executive branch. There are always collegial disputes among senior officials not involving malfeasance, not involving politicization.

    So, even if there's some disagreement between Mr. Mueller and Mr. Barr, happens every day in Article 2 and I'm sure in Congress as well.

  • Amna Nawaz:

    Neal Katyal, I want to ask you about that letter. That letter from special counsel Robert Mueller to A.G. Barr was sent on March 27. Less than two weeks later, on April 9, the attorney general testified before the House Appropriations Committee, and he had this exchange with Congressman Charlie Crist:

    Rep. Charlie Crist (D)-Fla.: Reports have emerged recently, General, that members of the special counsel's team are frustrated at some level with the limited information included in your March 24 letter, that it does not adequately or accurately, necessarily, portray the report's findings.

    Do you know what they're referencing with that?

  • William Barr:

    No, I don't.

    I think — I think — I suspect that they probably wanted more put out.

  • Amna Nawaz:

    Neal Katyal, Speaker Pelosi, as you heard earlier, accused Barr of lying to Congress, of breaking the law. Could there be consequences for the attorney general as result of those statements?

  • Neal Katyal:

    There will be consequences, definitely.

    So, first of all, I disagree with my friend David entirely. The idea that the Mueller letter was some collegial thing, like that Article 2 folks have all the time, absolutely not. I served in two administrations very high up in the Justice Department. I never saw anything, anything even close to this.

    Mueller didn't have like some minor disagreement. He went to paper. He outlined his concerns. And he even quoted the end of the special counsel regulations, which talk about the need for public disclosure to Congress.

    So I think my friend is also absolutely wrong about the special counsel regulations being all about an executive branch investigation. The whole idea of them was to investigate, and particularly if you're talking about a sitting president who can't be indicted, to provide that fact-finding to Congress.

    Now, you asked about Pelosi's comments and Mueller — excuse me — and Barr's testimony. And I 100 percent agree with the spirit of your question, which is, there's no way to watch that interchange and to watch what Barr said yesterday and what Mueller said in his September — in his March 27 letter and conclude anything but that the attorney general was misleading the American public.

    Maybe it was unintentional. I don't know. But this is not the standard of an attorney general from either party in our lifetimes. This is — this is despicable behavior.

  • Amna Nawaz:

    David Rivkin, let me ask you about something else the attorney general said in yesterday's — or in a previous hearing. He said that the president can basically terminate any investigation if he believes that it is baseless.

    Senator Schumer sent a letter today to the attorney general and said this: "This was the first time I heard you articulate as attorney general this starkly extremist view. If these views are truly your views, you do not deserve to be attorney general."

    Does a view like that, saying the president is free to terminate whatever investigation he likes, does that undermine Attorney General Barr's ability to do his job?

  • David Rivkin:

    Not at all.

    Let me associate myself with General Barr's view. It's axiomatic that, in our constitutional system, it is the president who is the chief law enforcement officer. The president can initiate, can terminate or can impact the course of any investigation as a constitutional matter.

    As a policy matter, as a matter of political probity, it wouldn't be wise for the president to do that. But it's not the same as to say it's unconstitutional and would constitute obstruction of justice.

    Here, again, we're going to be serious dialogue about those issues. But it's regrettable that Mr. Schumer sees fit to throw up those accusations.

    And, by the way, I don't agree at all the notion about lying. To put it very simply by General Barr, the question was whether he was aware of that some members of Mr. Mueller's staff were disenchanted. He said, no, based upon the fact that he has not spoken with any such members.

    And, presumably, Mr. Mueller has not told him that. Again, to accuse somebody…

  • Amna Nawaz:

    But, again, at that time he said that, he had a letter — he had a letter in which Mr. Mueller and his team had said, we have concerns about the way you have summarized our report.

    (CROSSTALK)

  • David Rivkin:

    But these are concerns about presentation, the pace of release, whether or not you're going to intermediate release of a summary of a report, when Mr. Barr knew he was going to release the entire report.

  • Neal Katyal:

    David, that is not what the letter says.

  • David Rivkin:

    It's regrettable. It's unworthy of what we're dealing with to be throwing that kind of false accusations around.

  • Amna Nawaz:

    Neal, go ahead. Respond.

    (CROSSTALK)

  • Neal Katyal:

    Yes, that's not what the letter says.

    The letter says that, because of Barr's non-summary summary, he distorted things, and so the public was left with the wrong impression.

    And your whole explanation, which I just heard, which astounds me, which is, oh, the question that Representative Crist asked was about the staff, then that boomerangs on you, because, after all, Barr's explanation yesterday was, well, Mueller didn't actually write the letter, I thought it was written by his staff.

    So, by your own reasoning, he would have had to disclose that. So none of this makes any sense.

    And, look, I understand you're a great lawyer, but the lengths to which you are going to defend this attorney general, who will go down in history as one of the most misleading people to hold that office, maybe the most, is — I think is very sad.

  • David Rivkin:

    Neal, can I just make — can I just make one point?

    What is the point? Think about the plausibility of somebody who's a distinguished public servant, a good friend, who misleads the American public for a couple of weeks, knowing full well that he is going to release the entire report with tiny redactions?

    How does it make any sense? Forget morality, just as a matter of pragmatism.

    (CROSSTALK)

  • Amna Nawaz:

    David Rivkin, let me ask you this. Let me ask — just a few seconds left here.

    There were a number of questions about the way the attorney general answered some of the questions in testimony. People thought he made — he was evasive and parsing words.

    Has he undermined his ability? Has he lost credibility in his ability to serve as the chief law enforcement officer?

  • David Rivkin:

    Not at all.

    I, frankly, think his questioners lost more credibility. And, again, the fact, for example, we're fighting now over unusual format for his testimony to the House Judiciary Committee, where, for the first time in history, you're going to have a 30-minute discourse by outside counsel, doing a courtroom drama-style inquisition, tells you how far we have gone down this road as a country.

    We got to do better than that.

  • Amna Nawaz:

    Neal Katyal — Neal Katyal, just a few seconds left. What do you see happening next?

  • Neal Katyal:

    Yes, I think that there's going to be these 30-minute questions. Barr's going to have to testify and face them, just as Michael Chertoff did in Whitewater, just as, in Iran-Contra, there were Cabinet secretaries testified to staff.

    It's all going to happen. And if Barr plays chicken, as he's been, he's going to get subpoenas, he's going to be held in contempt. And I think there will be other consequences as well. The Democrats will cut out funding for the office of the attorney general and target this lawless attorney general.

  • Amna Nawaz:

    We will have to leave it there.

    Neal Katyal and David Rivkin, thank you very much for being here.

  • David Rivkin:

    Good to be with you.

  • Neal Katyal:

    Thank you.

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