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Douglas Kmiec

Attorney Douglas W. Kmiec is a professor of constitutional law and Caruso Family Chair in constitutional law at Pepperdine...

Mark Zaid

Attorney Mark S. Zaid is a Washington, D.C. attorney who specializes in crisis management and complex administrative and litigation...

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Laurence Colletti

Laurence Colletti serves as the producer at Legal Talk Network where he combines his passion for web-based media with...

On October 30, 2017, federal charges were filed against President Trump’s former campaign chairman, Paul Manafort, and former Trump campaign official Rick Gates. Charges were filed in connection to special counsel Robert Mueller’s investigation into possible collusion between the 2016 Presidential campaign and the Russian government. On October 5, 2017, President Trump’s foreign policy adviser, George Papadopoulos, plead guilty for giving false statements to the FBI.

On Lawyer 2 Lawyer, guest host Laurence Colletti joins attorney Mark Zaid, a Washington, D.C. based attorney specializing in national security, and attorney Douglas W. Kmiec, professor of constitutional law and Caruso Family Chair in constitutional law at Pepperdine Law and Ambassador of the United States (Ret.,) to discuss the recent charges in Robert Mueller’s investigation into Russian involvement in the 2016 Presidential campaign. They will take a look at the charges, the players involved, who will be the next to be charged, potential pardons, and whether President Trump will be charged by Mueller.

Attorney Mark S. Zaid is a Washington, D.C. attorney who specializes in crisis management and complex administrative and litigation matters relating to national security, international law, and the Freedom of Information/Privacy Act.

Attorney Douglas W. Kmiec is a professor of constitutional law and Caruso Family Chair in constitutional law at Pepperdine University and Ambassador of the United States (Ret.).

Special thanks to our sponsors, Clio and Litera.

Transcript

Lawyer 2 Lawyer – Law News and Legal Topics

Inside the Mueller Investigation

11/22/2017

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Mark Zaid: Whether or not the President even prior to being President had financial dealings with Russia or Russians, that could have influenced steps he was taking and contacts he, his family, or his campaign were in touch with, with the Russians really, if not, go to the heart of what the Special Counsel is looking at, but certainly is in the next sort of circle or tier from the main objective.

Douglas Kmiec: Is he going to be subjected to pressure from the Russians to do things their way, not in the interest of the United States because of his own self-dealing and his own investments. If that’s the case, that is a scandal, that is wrongful collusion, and I am going to give it the word that dare not speak its name, that’s treason,

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Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

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Laurence Colletti: Welcome to Lawyer 2 Lawyer on Legal Talk Network. I am Laurence Colletti out of San Diego, California. I am the Executive Producer for Legal Talk Network and frequent writer for our blog. I am also an attorney and today I am standing in for Mr. Bob Ambrogi, who is away today on urgent family matters. We wish him and his family well.

Before we introduce today’s topic we would like to thank our sponsors Clio and Litéra.

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On October 30, 2017 federal charges were filed against President Trump’s former campaign Chairman Paul Manafort and former Trump campaign official Rick Gates in connection to special counsel Robert Mueller’s investigation into possible collusion between the 2016 presidential campaign and the Russian Government. President Trump’s Foreign Policy Advisor George Papadopoulos pled guilty for giving false statements to the FBI.

Today on Lawyer 2 Lawyer we will discuss the recent charges in the Robert Mueller’s investigation into Russian involvement in the 2016 presidential campaign. We will take a look at the charges, the players involved, who might be charged next, potential pardons and whether President Trump will be charged by Mueller himself.

We have a great line up today for you. Our first guest is attorney Mark S. Zaid, a Washington D.C. attorney, who specializes in crisis management and complex administrative and litigation matters relating to national security, international law and the Freedom of Information and Privacy Act.

Through his practice Mr. Zaid often represents former and current federal employees, particularly intelligence and military officers, defense contractors, whistleblowers, and others who have grievances or are being investigated by agencies of the United States Government or foreign governments, as well as members of the media.

Welcome to the show Mark Zaid.

Mark Zaid: Thank you. My pleasure to be here.

Laurence Colletti: And our next guest is attorney Douglas W. Kmiec, Professor of Constitutional Law and Caruso Family Chair in Constitutional Law at Pepperdine University and Ambassador of the United States, retired. Beyond the university setting, Ambassador Kmiec served Presidents Ronald Reagan and George H.W. Bush during 1985-1989 as Assistant and Deputy Assistant US Attorney General, Office of Legal Counsel, U.S. Department of Justice. He was nominated for foreign service to the Republic of Malta by President Barack Obama and served as Chief of Mission from 2009 to 2011.

Welcome to the show Douglas Kmiec.

Douglas Kmiec: Good to be with you.

Laurence Colletti: Excellent. Gentlemen, again, thank you for joining us. We have got quite a complex topic here, so in preparation for the interview today I decided that it would be a good idea to give our listeners a timeline of the events that have occurred to give them sort of a broader context, to bring in the players and the events to give fuller meaning to this.

And so what I wanted to ask you is just to humor me for a few minutes here as I walk through the timeline. It’s going to take a few minutes, but I consider it an investment, because I think it will give us broader understanding.

And to do that I pulled up an article from The New York Times; it’s titled ‘How We Got Here: A Timeline of Events Leading Up to the Charges’, by Mikayla Bouchard and Emily Cochrane. They did an excellent job, so I want to cite that article and invite our listeners to pull that up onto their mobile device or their computers and follow along with this, because I think this will give a greater understanding of the issues.

(00:04:58)

So we start in 2015 and we will proceed all the way through to 2017, marking some of the key events that happened along the way.

So let’s start with 2015, between June and the end of December there were three major events that happened. The first is Donald Trump announces his campaign for President. Without that, we are not here doing our investigation today.

Two, the FBI first tries to inform the DNC that they were targeted for a cyberattack.

And then, three, and this is the first instance of Russian contacts, the future National Security Advisor Michael Flynn is paid over $45,000 to make a speech for a media organization in Moscow with Russian President Vladimir Putin in attendance.

So that’s 2015, so not a lot going on but it sets the way for 2016.

So first up, George Papadopoulos, he is one of the people charged in the late October charges, and between March and the end of April in 2016, George is named Trump campaign foreign policy advisor, and in short order he meets with London-based Professor Joseph Mifsud; I hope I pronounced this right, who, by the way has gone missing. I just saw in a recent report that he has gone missing. I don’t think he is in danger, but the media accounts seem to lead to him hiding I guess from public appearances.

But anyway, Professor Mifsud introduces him to both in person and via email to people that claim to be related to Vladimir Putin, which that later turns out to be false, and also to people that are connected with the Russian Foreign Ministry who George talks to via Skype to discuss possible meetings between Donald Trump and Russian Government officials.

And in addition, Professor Joseph also reveals to George that the Russians have incriminating email evidence regarding Hillary Clinton in the thousands. So that’s instance of Russian connections too.

All right, enter Paul Manafort, so between March and the end of May, Paul Manafort starts working for the Trump campaign and as an unpaid advisor to Rangel, delegates for the Republican National Convention; apparently does a good job because he gets promoted to Chairman and Chief Strategist to the Trump campaign shortly thereafter. So of course Paul Manafort, one of the people charged at the end of October.

All right, that brings up June 3, the instance of Russian contacts number three. Donald Trump, Jr. is contacted by British-born tabloid reporter Rob Goldstone. He offers to connect him with Russian billionaire and hopefully I get this name right, Aras Agalarov and his Russian pop star son, Emin, who claim to have incriminating information about Hillary Clinton’s relationship with the Russians. So that’s instance of Russian contacts number three.

A few days later, June 9, instance of Russian contacts number four, Donald Trump, Jr. along with Paul Manafort, Jared Kushner, who of course is Donald Trump’s son-in-law, Rob Goldstone and three others meet with Natalia Veselnitskaya, a Russian lawyer, to talk about incriminating information about Hillary Clinton, her involvement with the Russians, and so that’s instance of Russian contacts number four.

June 14, Crowdstrike, a cybersecurity firm hired by the DNC, claims Russian hackers breached their system and obtained thousands of emails and documents. Then on June 22, shortly thereafter, the second boot falls, WikiLeaks releases almost 20,000 hacked Democrat emails.

August 19, Paul Manafort, who was doing such a good job up to this time, is fired by the Trump administration after his financial dealings with the pro-Russia party surfaced.

November 8, Donald Trump is elected the President of the United States; that’s an important landmark.

And then on November 17, Michael Flynn, who gave that $45,000 speech in Moscow, is appointed as National Security Advisor.

Then on December 29, in the waning days of his presidency, President Obama announces sanctions against Russia, citing attempts to influence the 2016 presidential election with cyberattacks, enter instance of Russian contacts number five.

Near this time Michael Flynn, who gave the $45,000 speech, discusses the sanctions with the Russian Ambassador Sergey Kislyak, and that’s a name we will want to remember because it comes up later.

Enter 2017, now the dominoes begin to start falling. So January 27, George Papadopoulos interviewed by FBI makes false statements about interactions with Russian contacts.

February 13, Michael Flynn resigns as National Security Advisor after it was revealed that he had been misleading about his conversations with Ambassador Sergey Kislyak. So that’s Kislyak’s kiss of death number one. Michael Flynn now has to resign himself.

February 16, George Papadopoulos interviewed by FBI for a second time. According to court documents, the very next day after his interview, his Facebook account was shut down in an attempt to erase messages with foreign contacts.

March 2, attorney Jeff Sessions recuses himself from the Russian investigation because he also had a meeting with Ambassador Sergey Kislyak. So that’s Kislyak’s kiss of death number two. And now, attorney Jeff Sessions has to recuse himself. Rod Rosenstein steps in to supervise the investigation as Deputy Attorney General.

(00:10:02)

May 9, an important date, President Trump fires FBI Director James Comey, citing the handling of the investigation into Hillary Clinton’s use of private email server as the reason.

Shortly thereafter, May 17, the Justice Department responds, appoints former FBI Director Robert Mueller to serve as Special Counsel and oversee the investigation into Russian interference in the 2016 presidential campaign, including any contacts between Mr. Trump’s campaign and the Russian officials.

Then on May 23, the U.S. Department of Justice ethics experts announce they had declared Robert Mueller ethically able to function as Special Counsel.

So I want to get at that a little bit later, because he does have some close ties with James Comey and he does have close ties with Rod Rosenstein, but we will get into that during the rest of the show.

July 26, federal agents raid Paul Manafort’s home, leaving with binders of documents and copies of computer files.

July 27, the FBI arrests George Papadopoulos at Dulles International Airport.

And on October 3, George Papadopoulos is charged with providing false statements to federal authorities under Title 18 U.S.C. §1001(a)(2)and signs a plea deal two days later.

October 30, and this is the last entry, Paul Manafort and Rick Gates surrender to federal authorizes and plead not guilty to charges which included, among many, money laundering, tax fraud and being an unregistered agent of a foreign principal.

So while I catch my breath here, how did I do on my timeline?

Mark Zaid: Sounds good. There’s more of course than that, and frankly, probably what you didn’t say is what is most damning and that’s information that none of us know, and only what the Special Counsels know.

Laurence Colletti: Okay. Well, let’s get at that. That’s a nice segue into my first question for you guys.

So as I was doing the research, I looked into sort of the trends and everybody — you hear Russians, people talking with this person and that person, and so apparently, from the news reports it’s not illegal or unusual for campaigns and officials to be talking with foreign officials, especially during the campaign season. In addition, it’s not illegal to collude with them, it just depends what you are colluding for.

So, in lieu of that, I wanted to ask you guys, what exactly is being investigated by Robert Mueller in this investigation, what are they looking for?

Douglas Kmiec: Well, I do think that the essential point is and the essential question is did Donald Trump or any other member of his campaign knowingly work with the Russian government, utilizing materials that was known to the Trump campaign to have been stolen, proprietary materials from the DNC, from John Podesta’s email account and so forth, and for the purpose of influencing or manipulating the outcome of the 2016 election.

We know the Russians — our intelligence agency tells us the Russians were the ones involved in the cyberattack. We know that they interacted with Julian Assange and Julian published the thousands of emails that keep getting talked about.

What we don’t know is what Donald Trump or his senior leadership knew about the Russian efforts to steal materials from American citizens, and we don’t know whether if he knew about that, whether he used those materials to his advantage and to the disadvantage of Hillary Clinton, not just in the sense of disadvantaging her in terms of the political outcome for the presidency, but also for his own personal account, in the sense of economic wellbeing.

Laurence Colletti: Well, let’s build on that, so that was kind of also a nice jumping off point for my next question, so we went over where the FBI’s evidence of the DNC hacking came from, so what I want to do is bridge the gap. How did that get attributed to the Trump administration versus say a foreign government on its own? So say Russia acting on its own or maybe some other party. How did this get to the Trump administration?

Douglas Kmiec: Well, I mean what we know is, is that the President in his stump speeches was praising WikiLeaks and encouraging either tongue-in-cheek or seriously WikiLeaks to go get the missing, so-called missing 30,000 emails. I don’t think we have in hand yet the evidence that is most needed and that is Mr. Trump’s knowledge, if he had that knowledge, of where the materials that he was being benefited by through the WikiLeaks publication came from.

(00:14:57)

You will remember that for the longest time Donald Trump said, well, we don’t really know who did the hacking. It might have been China, it might have been Russia, he said. It might have been a heavyset person that’s sitting on the end of a bed.

Most recently, returning from meetings in Asia, he had a side conversation with Vladimir Putin, where Mr. Putin once again insisted he knew nothing about the manipulation and Donald Trump in a rather casual way, said, well, I believe Putin doesn’t actually think he had anything to do with it, but I trust my intelligence agencies. Well, one would hope the President of the United States would trust eight intelligence agencies or more.

So we only recently have the President saying, okay, we know it was Russia involved in hacking the system and breaking into the system. If he knows that now, the question is, did he know it earlier, and if he did know it earlier, then was he making use of those stolen materials, those proprietary materials to disadvantage his opponent, and therefore to work in league or in collusion with a foreign adversary, not only for his own personal benefit, but obviously cooperating in a way that allowed the Russians very effectively to cause the American people to not have faith in the integrity of what took place in November 2016.

Mark Zaid: I agree with the Ambassador and I will add a couple of points. One, we also know what came out most recently of direct message communications on Twitter between Donald Trump, Jr. and Julian Assange directly, that was talking about the emails and attempts by Julian Assange to get greater collaboration with the Trump campaign, and there were, at least I believe, three responses from Don Jr.

And at times when Julian Assange made suggestions to Don Jr. that the Trump campaign should promote certain stories, then about 15 minutes later you actually saw, I think Donald Trump himself if I am remembering correctly, tweeted out some information that looks like it’s streamed from Assange via Don Jr.

And in addition to what I think what the Ambassador said was absolutely right about what the Special Counsel was looking at, I would add some peripheral issues as to whether or not there could have been obstruction of justice, particularly with the firing of James Comey and what typically happens in these independent investigations.

A lot of things on the periphery, just like what we saw with Manafort and Gates indictment, which was nothing directly being looked at by the Special Counsel’s Office, but was a natural fallout as a result; same thing with Papadopoulos. I mean, what we often see is there’s a lot more people who get prosecuted for things they did wrong during the course of their investigation than perhaps what they did before. We saw that with Clinton in Whitewater and Judge Starr, we saw that in the Valerie Plame investigation, where a lot of things with where they started out isn’t necessarily where they ended up.

Laurence Colletti: So I want to build on that for my next question here, and I want to just kind of put on the side the Paul Manafort, Rick Gates and George Papadopoulos charges. And so just first, before we get there, I want to talk about the Fourth Amendment. Let me read it briefly real quick and then I want to build into a question.

“[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The reason I brought that up is because the Robert Mueller investigation, definitely really broad-based right now and building upon that Paul Manafort, Rick Gates sort of ancillary issues that they are being investigated for right now, I wanted to ask currently as this investigation unfurls, is it still within the confines of what is approved by the Fourth Amendment; why don’t we hand this one over to the Ambassador?

Douglas Kmiec: Well, I think the most obvious place where it was clearly observed was where the FBI at the direction of the Special Counsel one early morning showed up at the household of Mr. Manafort and with warrant in hand collected bags of evidence, which presumably will now be used by the Special Counsel to carry out the further investigation and ultimately prosecution of Mr. Manafort for, among other things, the laundering of monies, the hiding of those funds from proper taxation, failure to register as a foreign agent, all of these things had been alleged.

(00:20:12)

So I think we have clearly compliance by the Special Counsel, as you would expect of someone of his integrity and experience with the Fourth Amendment warrant requirement in that respect.

I don’t have any direct knowledge of the Constitution in that sense being disregarded, although every now and then one hears concern as there always is when you deal with foreign intelligence with whether or not American conversations get swept up in the latitude that the United States has under law to listen to foreign conversations. And in fact, right this moment before Congress there is an attempt to renew the law that allows the intelligence agencies to monitor those conversations and to tighten the statutory requirements to make them presumably more compatible with the Fourth Amendment.

So I think in terms of search and seizure, I think the government officials are observing the law as it exists and Congress is attuned to this consideration as well.

Laurence Colletti: What do you think Mark?

Mark Zaid: Yeah, I have certainly not heard of any credible concerns of any Fourth Amendment violations. I would say the one point that we have certainly heard people decrying are some of the leaks that have come out, some of which would appear to be of classified information, but not necessarily from the Special Counsel’s Office, which is the key thing.

A lot of the information that has come out, particularly about Michael Flynn’s discussions with the Ambassador Kislyak, as you mentioned, I mean presumably that was picked up through FISA warrants that the Ambassador was just talking about, with §702, which would have been targeting Ambassador Kislyak, not Michael Flynn, but obviously picked up because they are the ones having conversations.

And there are concerns about what is called unmasking, when Americans were picked up in foreign communications and whether NSC officials in either administration then sought the unmasking of the American identities for purposes of counterintelligence investigations.

But one of the things that came about from the announcement of the Papadopoulos’ guilty plea was actually in the Special Counsel’s favor, because quite frankly, it captured everyone by surprise. I mean no one really had any inkling that Papadopoulos had, one, been arrested; and two, had arranged the guilty plea with the Special Counsel’s Office.

So that gave some credibility or further credibility to the Special Counsel’s Office that the leaks might not have been coming from his office. I mean, the problem is there are lots of places where leaks should be coming from, particularly from the Hill or even in the White House itself, as we had when Gates and Manafort were indicted.

We learned, as I recall, so the indictment was on Monday and I believe we learned on Friday that something was going to happen on Monday, and there were lots of discussions as to what the source or who was the source of those leaks. Because if it came from some parties like the Justice Department, it could be illegal, but if it came from any witnesses or even Manafort and Gates’ lawyers, they would be allowed to have that conversation and there would be actually potentially a strategic value to even leak it, to make it look like it was coming from the Special Counsel’s Offices.

Laurence Colletti: All right, well, gentlemen, let’s hold it right there, I want to return to the charges after we follow up on our break here. So first we are going to take a quick little break here to hear a message from our sponsors, but when we return, we are going to revisit the charges against Paul Manafort, Rick Gates and George Papadopoulos.

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Laurence Colletti: Welcome back to Lawyer 2 Lawyer. I am Laurence Colletti and with us today is attorney Mark Zaid, Washington D.C.-based attorney specializing in national security, and attorney Douglas W. Kmiec, Professor of Constitutional Law and Caruso Family Chair in Constitutional Law at Pepperdine and Ambassador of the United States, retired. Welcome back gentlemen.

Douglas Kmiec: Good to be with you.

Mark Zaid: Absolutely.

Laurence Colletti: So where we left off, we were about ready to get into the charges of Paul Manafort, Rick Gates and George Papadopoulos. So I think I want to start with Paul Manafort and Rick Gates. And so to do that I found this Washington Times article and it was titled — and the article was by Douglas Ernst and it was titled, ‘Mark Levin says media ‘dolts’ missing real story on Manafort’s indictment: Mueller’s failures.’

And so, Mark Levin is a radio host and former Chief of Staff for Attorney General Edwin Meese during the Reagan administration, and so this is paraphrase for time, I need to kind of distill this down just a little bit, but this is what he said in the article. He said this, “If these are serious charges, the statute of limitations would’ve legitimately run out on the earlier years that they’re talking about, with respect to the conspiracy charge.” And that federal officials had access to Mr. Manafort’s travel records, tax returns and other documents related to lobbying work in Ukraine if they wanted to put a case together years ago.

So again, still paraphrasing, this predates President Trump’s campaign, this predates his announcement that he is running for President of the United States. Again, paraphrasing, this isn’t about justice, this isn’t about seeking the truth, this is about doing everything possible to make a case against the President of the United States when you don’t have a case against the President of the United States.

I wanted to hand that to you guys, what you thought in regards to some of these charges that seem to be a little bit outside the scope of simply investigating Russian collusion with the Trump campaign.

Douglas Kmiec: I think there is a criticism that I think is appropriate here, and that is that you have, at least in the public’s mind, and I think in the mind of the President as well that the justification for a so-called Special Counsel was that there were things that could not be done by the thousands of career prosecutors in the Department of Justice.

Now, in the old days, back when Ken Starr was in business, there was a statute, it was called the Ethics in Government Act, and it created an office, the Office of Independent Counsel and its idea was that because the Executive Branch is the law enforcement branch, that when high-ranking officials in the Executive Branch were charged with a crime, we needed somebody independent, somebody special to do the prosecution, to give it an objective look and treatment.

Well, what we learned from the Independent Counsel Law was that it was often used as a political weapon, and by virtue of that the regulations of the Department of Justice say that Special Counsels should be reserved for the most extraordinary circumstance and indeed the preference ought to be almost always for keeping things in the department and not going outside of it.

The reason I raise this is because when you ask the questions about the charges that have been brought against Gates and Manafort, those are charges that really could have been brought quite comfortably within the statute of limitations and within the boundaries that every prosecutor has to observe by any one of thousands of competent people in the Department of Justice.

Now, once Mr. Mueller gets his appointment, he of course has a very broad statement of jurisdiction and he can pick it up and do it, but the question is, is that really advancing the ball for the public mind in clarifying what happened in 2016? I think the answer is no.

Laurence Colletti: Your thoughts, Mark.

Mark Zaid: Well, because it is peripheral it’s going to have that type of criticism levied at it and I think many of us who are watching this investigation are of the belief, at least from conversations I have certainly had, that the financial areas are the areas of most vulnerability, because of course we haven’t mentioned there is no crime of collusion per se. There are crimes that could fit the sort of topical definition or the layperson’s definition of collusion that makes it into more a legal crime, but everyone keeps using the word collusion too often in the media as if that’s its own crime.

(00:30:00)

And I guess we don’t know at this point what steps were being undertaken by the Special Counsel’s Office in its investigation that then led to Manafort and Gates’ indictment. I mean the Papadopoulos one is much more obvious. In fact, really that’s the one, or the guilty plea, that’s the one that is most directly connected to a potential Russian connection.

And presumably, as is often the case and what we are hearing by rumor, because no one in the Special Counsel’s Office is confirming, but when there is an indictment or pursuit of somebody, it is oftentimes an exercise to try and get the bigger fish. And these are very serious charges that have been filed against Manafort and Gates.

The Ambassador is completely correct that frankly there are offices within the Justice Department that could have easily have brought this, and as Manafort and Gates’ lawyers have been pointing out, that actually these types of prosecutions, at least with respect to the violations of failing to register as a foreign agent, are rarely ever brought, although that doesn’t really mean much of anything since they have been brought.

But we have been hearing lately about rumors of pressure being put on Michael Flynn, Jr., the son of the Former National Security Advisor as to whether or not that could be an effort to get at Michael Flynn to, again, go up through the chain up to the bigger fish.

So the people that we are dealing with are so outside the norm of what we are used to hear in Washington D.C., and by that I mean these are not typical politicians, these aren’t people who spent much of any time here in Washington D.C. I am not talking about Flynn, because he of course has. But the folks that are coming from New York, and I am a New Yorker, so I can say that, coming from New York, especially from the financial sector of things, where you are engaged in activities and have attitudes that quite frankly don’t play very well here in Washington D.C.

Scaramucci comes to mind as another person that really fell victim to that. And I think a lot of what these folks are about to find out and in fact, President Trump made some sort of veiled threat at one point, I think I am sure via Twitter, not to go down the financial road. Don’t go after his tax returns. That has nothing to do with Russia, where a lot of us who are looking at this are thinking, actually, that’s where a lot of the information could be. In fact, it could be directly connected to Russia, because whether or not the President even prior to being President has financial dealings with Russia or Russians, that could have influenced steps he was taking and contacts he, his family, or his campaign were in touch with, with the Russians really, if not, go to the heart of what the Special Counsel is looking at, but certainly is in the next sort of circle or tier from the main objective.

Douglas Kmiec: Mark’s remarks are directly on target. He is absolutely correct that the word collusion is not — there is no crime of collusion, because obviously some of the things that the President has said he was interested in was not to engage the Russians in bad behavior, but to engage in creative and open-minded foreign policy that would allow the Russian Republic and the United States of America to work together on combating terrorism and other things of common interests.

There would be nothing wrong with the President of the United States colluding with Russian officials on that topic, and I am certain Mr. Papadopoulos, even though he pleaded guilty to a relatively side issue, and that is his misstatements as to when he interacted and got to know particular people associated with the Kremlin or with Russia, that was a perjury count and really didn’t go to the merits of what we are talking about. But I am certain Mr. Papadopoulos thought his role was to advance the foreign policy issue that we are talking about.

But Mark also mentioned something very important and that is Donald Trump comes from New York, comes from a business background, does not come from a background acculturated with lots of dealings with Washington agencies, including the very complex matters handled by the Department of Justice, and to some degree he is walking into a trap when he does that, because if you go back, you had a very nice timeline, but let me push it back to 2013.

(00:35:02)

On October 17, 2013, Donald Trump in an interview with David Letterman said that he had a lot of business with the Russians. Well, if he does indeed have a lot of business with the Russians, Mark is exactly right, that’s where it starts to overlap into something very serious. And that is, is he going to be subjected to pressure from the Russians to do things their way, not in the interest of the United States because of his own self-dealing and his own investments. If that’s the case, that is a scandal, that is wrongful collusion, and I am going to give it the word that dare not speak its name, that’s treason, that’s giving aid and comfort to our foreign adversaries.

And if we are into that neighborhood and once you go down the rabbit hole of financial interaction for financing for towers or other projects that was perhaps not available from domestic sources, then you start getting into some very serious charges and charges that might even lead to the House to consider an impeachment.

Laurence Colletti: I want to transition the discussion towards Robert Mueller a little bit. So he has got closeness with the FBI. He has got a pre-existing relationship; working relationship with James Comey and Rod Rosenstein. I mean he has got — James Comey and Robert Mueller both worked for the FBI and at one time Robert Mueller was Rod Rosenstein’s boss.

So just wanted to ask this, in lieu of Jeff Sessions recusing himself, is there enough in the inter-workings of those relationships to warrant a recusal of Robert Mueller from this investigation. What do you guys think?

Mark Zaid: I will say real quickly and then the Ambassador could really weigh in given his longstanding experience within the U.S. Government system. I have been now in Washington for almost a quarter century and it’s virtually impossible not to have some connections to somebody at this level, and the fact is that the Special Counsel and James Comey, these are two individuals, and Rod Rosenstein, these are three individuals who have been incredibly well-respected and well-regarded to be able to perform their jobs professionally and without partisan or ideological influence.

So yes, there is a friendship there, but I see those assertions in a negative way to be coming from individuals such as the President and close staff, frankly more out of a potential fear where these investigations might go rather than an actual substantive or legal conflict that would not enable them to perform their jobs properly.

Laurence Colletti: What do you say Ambassador?

Douglas Kmiec: I think that’s nicely put by Mark and there’s two levels to this. One level is can anyone really attack the integrity and judgment of Bob Mueller and I think the answer is no. And even though the President or the people assisting the President started to go down that path, I think they have correctly turned around or at least stopped in place.

But the second level of the concern again plays into this multiple issues of whether it was — well, let’s just take them in order, was it appropriate for Attorney General Sessions to recuse himself as broadly as he did? I think there is a pretty serious argument that he did not pay close attention to where recusal was appropriate within the Department. He clearly had to recuse himself with respect to anything that raised questions about his own behavior, including his mistakes and testimony, but that didn’t mean that he was totally out of the supervision of the Department with regard to other aspects of this, and yet, that’s the recusal that he took.

That as we know angered the President. I am less concerned about the President’s anger than I am concerned about the proper functioning of the Department of Justice. And here’s where that error, if it is an error, of over-recusal leads, it leads to the initial appointment of Rod Rosenstein, again, another person who is very highly thought of, as acting Attorney General, but here’s the problem, President Trump had asked Rod Rosenstein for his opinion as to whether or not James Comey, because of his disregard or believed disregard of Department regulations in the Hillary Clinton matter, whether he should be dismissed as FBI Director.

(00:40:04)

Well, Rod Rosenstein wrote a written opinion to the effect that, yes, the President would have grounds to dismiss Mr. Comey. Well, that puts Rod Rosenstein in the middle of this transaction and he now has a recusal problem and rather than recusing himself in a way that would return this matter to the Department, he rather quickly, indeed I think too quickly, went to Bob Mueller, not again making any aspersion about Bob Mueller’s qualities, but being worried about the institutional aspects of these, one can make an argument that the appropriate person who should have been making decisions was not Rod Rosenstein, because he was involved in advising the President on the removal of Comey, but rather the next person in the hierarchy of the Department of Justice and that is the Associate Attorney General Rachel Brand.

So that’s where I think Mr. Mueller has some difficulty because the provenance, the origin of his appointment comes in a very mixed stew of disregard of departmental authority.

Laurence Colletti: Well, that’s interesting and as an attorney one of the things that I do worry about quite a bit is conflict of interest. I realize this isn’t the same situation as a matter from law firm to law firm, where it’s very likely, just kind of like you guys are talking about in Washington, it’s very likely that you could be working with some of the same people; in legal world that often happens and so you have conflict checks.

And so when I saw this it definitely raised some flags. I looked at Robert Mueller’s record, absolutely impeccable, an incredible record of service, but I have to say just objectively speaking looking back at this, I see friendships, I see coworkers that have worked on some matters in some pretty deeply untangled government investigations, and it does raise that red flag; just like the President and dealings with Russia in business.

So I guess from that point of view and especially since Rod Rosenstein said in an Associated Press interview that he would recuse himself in the supervision of Robert Mueller if he were to become subject of the investigation due to his role in the dismissal of James Comey. He is acknowledging that that could be a sensitive conflict there.

So I just wanted to kind of throw that back to you guys just objectively speaking, put your attorney hats on, does it bother you a little bit the interworkings of these relationships here?

Mark Zaid: I mean, not really, to be perfectly honest, because again I find it so difficult to be able to remove everybody. I mean I suppose they could have brought someone who perhaps was a US attorney in some other state, who frankly really didn’t have much in the way of any connections to anyone here. But there were specific reasons why these individuals were brought in particularly because of their reputations. Rod Rosenstein was the US attorney for the District of Maryland or the State of Maryland, because it’s just one District basically for the longest time and he was over the course of both a Democrat and Republican administrations.

And the other thing I will throw in there, it’s not just the legal conflict of interest, it’s not just the appearance of a conflict of interest, there are also politics now that are involved with this, and it’s actually I think the opposite of what we normally would have expected because of the uniqueness of this administration, and particularly being the outsiders, I would say, and the politics here is that because the professional reputations, notwithstanding the personal friendships of the three individuals we keep talking about, is at such a high level that you have now actually had numerous Republican members in the House and the Senate, particularly in the Senate, saying that if the President actually tried or the Attorney General tried to fire, remove, however it might come about the Special Counsel, that that would be a trigger for them politically to initiate, not necessarily impeachment hearings, but at least go a step further down that road as sort of a warning shot.

Meaning that nothing anyone has yet seen, publicly or at least privately for themselves on the Hill, has risen to such a level than any conflict of interest has concerned them.

Laurence Colletti: Well, we are getting a little close to the end of our show, but I definitely want to hit a couple of more questions here, and my next one I want to segment into Ambassador Kmiec’s article; you wrote an op-ed piece, ‘How Trump can stop the Russian investigation on constitutional grounds’ for the Los Angeles Times. So Ambassador, I was wondering if you could kind of walk us through that; we talked about the Fourth Amendment earlier and the Constitution in that regard, but what are some of the other constitutional challenges that you foresee coming up against this investigation?

(00:45:10)

Douglas Kmiec: Well, the principal one that that article dealt with was one that originates out of an arcane provision in the Constitution, but nevertheless an important one, it’s called the Appointments Clause and the Appointments Clause says that there are basically two types of officers of the United States. There are inferior officers who are appointed by the heads of departments, the courts of law or the President alone and then there are principal officers who must be nominated by the President but subjected to advice and consent and confirmation by the United States Senate.

There was a case going back to the 1980s, Morrison v. Olson, where the court upheld the appointment of a special or independent counsel outside of the day-to-day supervision of the Department of Justice, but it was a very limited approval of that type of appointment and cases since then have emphasized that where someone is appointed and he has virtually no supervision and he has the ability to have almost an unlimited budget to create his own staff independent of the lawyers that could be detailed to him within the Department of Justice, where all of these great privileges are given that that person should be treated as a principal officer subject to the confirmation of the United States Senate.

I think that’s an argument that the President and his lawyers could use to defend himself and obviously he would have a reason to look for any credible argument to do that, but as an academic and as a constitutional lawyer and as someone who used to be two President’s constitutional legal advisor, I am concerned with the structure of the Constitution and the separation of powers and the avoidance of the abuse of prosecutorial power, and for that reason I think this is a credible issue that the President would have in his defense, but it’s better stated as a defense of the Constitution than a defense of Donald Trump.

Laurence Colletti: Interesting. So gentlemen, I have two questions left, I have one from myself and I have one from our Boston Producer Kate Nutting, and so my last question is predictions. So based on what you have seen and heard so far, what are the chances moving forward that there will be additional people charged, and who will they be, will it be Michael Flynn, Donald Trump, Jr., Jared Kushner even, President Donald Trump, what do you guys think? Let’s start with Mark.

Mark Zaid: That’s certainly a very difficult question to answer of course. I am hesitant obviously to predict because we don’t — like I said in the very beginning, we know far left publicly than what we don’t know. I mean the Special Counsel has really played this close to his best.

I would say I think there are some really legitimate concerns and areas that merit investigation where I could envision further prosecutions. And I am not an attorney for anyone under suspicion, to best of my knowledge; I have represented some witnesses already before the Office of Special Counsel, and I would say that if I were Trump or in his administration or inner circle, whether or not indictments are forthcoming, I would be concerned that it is a possibility.”

Laurence Colletti: All right and Ambassador.

Douglas Kmiec: I would agree. One of these things about the Special Counsel is that he only proves his worth in history when he shows up at the finish line having somebody in handcuffs, so the likelihood of other people doing what George Papadopoulos did, namely misstating some of the facts and being subject to prosecution for obstruction or perjury or peripheral matters, I think that’s going to be unavoidable.

As to whether the big event is there, that is whether the President or someone high up actually colluded, advanced the interest of a foreign advisory, I think as Mark says, that is being — that evidence doesn’t exist at all, in which case there’s nothing for the Special Counsel to withhold. Or whatever evidence there has emerged, he is very good at keeping it to himself.

I would hope for the good of the country that it’s the former rather than the latter, but I am not completely confident of that, and I get less confident of that every time we learn, as Mark alluded to earlier, with email conversations between WikiLeaks providers and the emails that were stolen from the DNC and John Podesta and so forth.

(00:50:11)

So, I think the likelihood of the Special Counsel coming up empty is zero, the likelihood of him coming up with someone charge on the periphery is quite gray. But the big question as to whether or not there’s been treachery against the United States; not enough is known.

Laurence Colletti: Well, I think that’s correct because to date the only instance of people getting in the trouble for conversations with the Russians are the conversations that they did not reveal when they were supposed to and not necessarily because of that conversation itself. So, last question, this is comes from our Boston producer Kate Nutting, and this is a great question of her’s, and so, if convictions are made from this investigation; what powers of pardon does President Trump have for himself and for others? Let’s start with Mark.

Mark Zaid: Sure, well, the president obviously has virtually unfettered pardon power other than I suppose that it was proof that he was bribed for it and many presidents have exercised pardon authority on some very controversial individuals usually when they are near the end of their term rather than President Trump starting with Sherriff Arpaio. But I suppose, the real question about pardon authority is from – and this, I’ll defer this to the Ambassador, it’s really whether or not the President has the power to pardon himself, which has been a great academic question that everyone has been discussing in the last few months, because who in the world ever would have thought that this could ever come up in presidential politics that we even have to decide whether the Constitution gives the President the power to pardon himself.

But – and I’ll say in closing, always keep in mind the President’s pardon power is federal; so if he did pardon certain individuals like we’ve seen already Manafort, Gates or Michael Flynn or Scaramucci whoever else might come up. There are a number of State investigations that we already do know of particularly by the New York State Attorney General of which President Trump’s pardon power does not encompass.

Laurence Colletti: And Ambassador, how about that last part, what are the prevailing winds in Pepperdine, what do they say about a sitting President having the ability to pardon himself or herself?

Douglas Kmiec: Well, I suppose I’m the windiest person at Pepperdine on this topic having considered it in the Office of Legal Counsel, and the Office of Legal Counsel of the Department of Justice has opined that presidents may not; as a historical and structural matter pardon themselves for the same reason that someone cannot be a judge in their own case. So it’s reasoning from very high level of generality of the rule of law as it was understood by our founding generation and thereafter.

The fact that we have to even consider this proposition is a very sad commentary about where we are in terms of the relationship between character and the presidency. But I think there is enough legal opinion from OLC that would suggest that the President should not have any great confidence that he can pardon himself. His ability to pardon others is near absolute on the federal level and you would get even arguments with regard to the State investigations about preemption and so forth that would have to be very carefully looked at. That would be my sense of it.

Laurence Colletti: Well, it looks like we’ve reached the end of our program, but I would like to invite our guest to share final thoughts and contact information, and I think at this time we’ll start with the Ambassador.

Douglas Kmiec: Well, I appreciate this opportunity to be in conversation with such a splendidly informed Attorney, as Mark, I would just like to emphasize that one of the things that should not be lost is that it is understood by the world order that Russia is seeking to extend its influence and it’s circle through various means, it started in Estonia with riots that were manufactured. It has continued into the United State where Russians that we now know purchased at very large amounts advertising space on Facebook and other social media; so however this particular investigation of the players turns out, I would hope that the United States will secure and take the necessary steps to secure the casting of votes at the State and local level by addressing through very inexpensive means when you actually think about the consequence of making sure that we have voting equipment that is capable of not being hacked or tampered with and that we do everything we can to harden the integrity and well-being of our democratic process.

(00:55:13)

Laurence Colletti: And how can our listeners reach out contact you if they want to follow-up?

Douglas Kmiec: Well, I’m available at Pepperdine University Law School and the e-mail is right there at the website for Pepperdine, and it’s quite simple, let’s just [email protected]; I would be happy to hear from the listeners.

Laurence Colletti: And Mark, your final thoughts and contact information?

Mark Zaid: Well, I expressed similar comments of thanking you for having me on this show and it’s been an honor to be on with the Ambassador who I’ve known by reputation for many, many years, although we didn’t cross paths I think during his time here in DC. And, what is going on right now is going to be something we are going to look back on for many, many years. I mean, we’re at an unprecedented place in our history given this sort of growing scandal within the Trump administration in a sense of how early this has been and not just from a political standpoint but from a legal standpoint, but the Ambassador is absolutely right that we’ve got this huge griller right behind. I mean, Russia is enjoying this immensely because what it’s set out to do it frankly has accomplished probably even more so than in ever envisioned the divisive aspects of what we’re seeing in our country as were somewhat being ripped apart politically up to the commander-in-chief being under investigation, is something completely unprecedented that we’ve never seen before except back perhaps to the impeachment of Andrew Johnson in 1869 which was incredibly political and no one today of course really remembers it.

But, we’re at a crossroads and we are at the beginning of this, and I guess the one thing I would say in closing is contrary — I don’t know where it’s going to end up, but a contrary to what the White House spokesperson has been saying, it’s not ending anytime soon.

Laurence Colletti: And your contact information, Mark?

Mark Zaid: Yes, so I can be reached at markzaid.com and my website is just markzaid.com, real easy for anybody to find me, happy to talk to anyone who is interested.

Laurence Colletti: And that brings us to the end of our show. If you would like what you heard today, please rate us in Apple Podcast. I’m Laurence Colletti. Thank you for listening, join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.

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Published: November 22, 2017
Podcast: Lawyer 2 Lawyer
Category: Legal News
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Lawyer 2 Lawyer
Lawyer 2 Lawyer

Lawyer 2 Lawyer is a legal affairs podcast covering contemporary and relevant issues in the news with a legal perspective.

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