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Professor Neal Katyal, Former Acting Solicitor General, On The Special Counsel Investigation and the DOJ’s Investigation of the 2016 Presidential Campaign

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Former Acting Solicitor General of the United States Neal Katyal joined me this morning:




HH: So pleased to welcome Neal Katyal to the program. You know, for years, I’ve done Erwin Chemerinsky and John Eastman as the smart guys. Someday, I’m going to achieve the dream of getting Paul Clement and Neal Katyal together to do the same thing, because then we can just eliminate the need to ask anybody else anyone’s opinion. Neal comes from all the wrong places – Jesuit trained, Dartmouth and Yale Law School, but nevertheless widely regarded as the smartest guy in D.C. not named Paul Clement. They’re tied. Former acting solicitor general of the Department of Justice, the man behind the Special Counsel regulation, Neal Katyal from Hogan Lovells, welcome, it’s great to have you on.

NK: Thanks, it’s great to be here, and always great to be associated with my friend, Paul Clement.

HH: You know, how many arguments have you made before the Supreme Court?

NK: A couple of weeks ago, I argued my 37th.

HH: All right. So I just want people to know we’re talking about someone who knows what they’re talking about. And what was your relationship to the regulations 28CFR 600, etc., about this special counsel?

NK: Yeah, it’s, you know, it’s kind of almost a quirk accident of history. I was a young Justice Department staffer. I was 27. I was on the deputy attorney general’s staff. This was when Janet Reno was the Attorney General and Eric Holder was the deputy. And this was, you know, my very first day was the day that Ken Starr’s deputies requested permission from Mr. Holder to wire Linda Tripp. And you know, it was compartmented, and I didn’t know about it for a long time. But ultimately, when it became public, there were questions about, you know, that started to rise to the fore about well, should we have an independent counsel act for the future, for Ken Starr would be grandfathered under the existing independent counsel act. But the act was to lapse on June 30th of 1999 by statute. And so the Department wanted to think about should we keep the act in place, should we replace it with something else. And so Ms. Reno convened a working group, and we met for 16 months to discuss that, and ultimately came to the conclusion that the independent counsel act was a bad idea, that it was a kind of headless fourth branch of government not really consistent with our Constitutional structure, and that something needed to replace it, and that something ultimately became those part 600 special counsel regulations which are what Rod Rosenstein, the deputy attorney general, has used to appoint Robert Mueller.

HH: Remarkable story and a confluence of events which make you perfect to answer the questions today. For the benefit of new affiliates and for Neal Katyal, my first day at the Department of Justice with compartmented information led me to eyebrow-raising examples that have changed how I view everything, including our current controversy. And I will not be naming the “informant” as a result of that, because I take seriously the admonition that to do so could endanger individuals, not that one, but other people. So let’s proceed on that basis, Neal Katyal.

NK: I agree, and it’s nice that you’re not proceeding by the same rules as, say, Devin Nunes.

HH: I am going to absolutely respect what I know, which is you never compromise methods and sources, or even get close.

NK: Great.

HH: Let me ask you, though, at the beginning, just so we can get our GPS. Was Alger Hiss a Soviet spy?

NK: You know, it sure seems like he was from all the…I’ve never read into that, so I don’t know, but it sure seems like it from all the publicly-available evidence that I’ve looked at.

HH: There…I ask that, because I ask every new guest two questions, that one, and whether or not you’ve read The Looming Tower. Did you read The Looming Tower?

NK: I have not.

HH: Oh, you’ve got, you’ll love it.

NK: Okay, great.

HH: Okay, let’s get down to it. Can a president, in your opinion, be indicted?

NK: Well, you know, so there are these two Justice Department opinions that say the answer to that is no. And you know, pretty much, that’s what I have generally thought. I’m a pretty robust presidential powers person, Article II and the like. The one thing that I do think is an important caveat, Walter Dellinger wrote this in the New York Times last month, and I believe others like Ted Olson, you know, Bush’s solicitor general, agree. There’s a distinction between indicting a president and trying a president. And the Dellinger-Olson position as I understand it is okay, you know, a trial of a president could really, you know, distract the president, you know, from the performance of his official duties and the like. But at the same time, we have this principle that no person is above the law. And the way to straddle those two is to say you can indict a sitting president, but you can’t try him until after he leaves office, and that office can be, the leave from office can be hastened, of course, by impeachment or something like that. You know, I find it very interesting that the president’s lawyers are floating this so extensively right now that he can’t be indicted, because you know, there’s a couple of problems with that, I mean, the most important of which is that the Constitutional scholars who believe that a sitting president can’t be indicted always couple that with a view that the remedy is impeachment.

HH: Yes.

NK: Congress, you know, otherwise a person truly would be above the law. You know, a president could shoot someone on 5th Avenue and there would be no remedy at least until after his 8 years or something like that, which can’t possibly be the law. And that’s why all the scholars say well, you can impeach him. But you know, in order for impeachment to take place, there has to be a robust public report from the special prosecutor so that Congress can do its job. And so you know, for the president to say that is, to say he can’t be indicted, is to say I want to make sure that Mueller has every piece of information turned over to the Congress of the United States. And boy, that sure seems bad for the president.

HH: When we were discussing yesterday on Meet the Press, I made the point that Judge Starr’s report to Congress was inadequately written. It did not communicate well what he attempted to do. And it was dropped on them by surprise. I think that Mr. Mueller’s report will be of great importance in this. But I also do not believe that the president can be subpoenaed because of Hamilton’s 69. I go back to the original deal, Neal Katyal. In Hamilton’s Federalist 69, he says the president can only be impeached, I’m paraphrasing, can only be impeached, and then other processes of law come along. Do you disagree with me? Do you believe the president can be subpoenaed by a grand jury?

NK: Oh, absolutely I do think so. I mean, that’s of course the unanimous precedent of the United States V. Nixon that you know, a president could be forced to turn over in the Watergate tapes. So, and you know, all presidents, you know, have complied with subpoenas. You can go back to Thomas Jefferson, President Grant, Ford, Carter, both Bushes. You know, and I think perhaps the most interesting example is President Reagan who turned over his personal diaries, you know, when Lawrence Walsh, the independent counsel, was investigating. And you know, this was, these were diaries that Marlon Fitzwater, his press secretary, said were very personal in nature. And President Reagan overruled Fitzwater and said you know, and sent Fitzwater out later to say, “the President wants to get to the bottom of the matter and fix what went wrong.” Get to the bottom of the matter and fix what went wrong, and turned over his really highly personal diaries to the independent counsel there.

HH: Of course, those are papers and records, not the person. And I draw a big distinction between U.S. V. Nixon and the person of the president.

NK: Sure, but even the person…

HH: But going back to Burr’s objection, or Jefferson’s objection in the Burr trial…

NK: But sure, sure, but even the person has been turned over, the most recently, of course, Bill Clinton who sat for six hours.

HH: Voluntarily. Voluntarily, right?

NK: Oh, sure, but I think that’s, I think that’s my point, which is I think it would be incredibly, incredibly, damaging precedent for the president of the United States, of all people, to not show up in a criminal proceeding? I mean…

HH: But that’s a political judgment. I just want the law here, Neal Katyal. Do you believe, two parts, that the president could…

NK: Yes, the law is United States V. Nixon. It’s as clear as day.

HH: But that’s papers. Those are tapes. Those do not involve the intrusion on to the president’s governing ability.

NK: Oh, well, I think that there isn’t a distinction between those two. I mean, the whole idea, I man, tapes and papers are deeply important, as anyone who’s worked in government knows, as you did from your time at the Justice Department. So I don’t think that there’s a, that one can distinguish between the two.

HH: Oh, I can. I think, and look, I’ve got a White House Counsel background as well. I can distinguish between Fred Fielding going through diaries and the president of the United States going to a grand jury. Absolutely, I can distinguish between those.

NK: And I think that there’s a very, very strong argument of the former. It’s far more damaging and intrusive to the executive branch than the latter.

HH: Interesting. Let me ask you if, this other question. Can the president of the United States direct the Department of Justice, the deputy attorney general who’s got the lead, under your regulations that you helped draft, not to issue a subpoena?

NK: So the president directing Rod Rosenstein to say to Mueller you can’t subpoena? Is that what you’re asking?

HH: Correct. Correct.

NK: Yeah, so I think Constitutionally speaking, the president probably has some Article II powers in that regard. The Special Counsel regulations say that would be a choice for the deputy attorney general to make on his own. And you know, what would happen in that circumstance, I suspect, is that the deputy attorney general would resign, because the idea that the president is interfering with an ongoing law enforcement investigation and directing certain things is a red line that no president has really crossed, except maybe arguably, Richard Nixon or something like that. So…

HH: What did you make of the deputy attorney general’s response yesterday to the president’s tweet saying he would be demanding an investigation into this actor abroad, an American citizen?

NK: Well, I think that goes to what I’m saying before, which, what I was just saying, which is you know, the first thing that has to be asked is how outrageous it is that the president of the United States is directing this about a criminal investigation into his own wrongdoing. And this is someone who has repeatedly sent his people out with, you know, shifting stories, from the start. I mean, when the Russian right after the election said that they had had contacts with the Trump camp, you know, he sent out Hope Hicks to say it never happened. There was no communication between the campaign and any foreign entity during the campaign. And then later after his national security advisor, his top national security advisor, Michael Flynn, was, you know, questioned for stuff, Trump said I have nothing to do with Russia. To the best of my knowledge, no person that I deal with does. You know, and so you know, there have been story after story in which the White House has been caught, you know, with their pants on fire.

HH: But back down to the Constitutional nub, and we only have about three minutes left, please come back, can the president Constitutionally direct his DOJ to prepare a comprehensive report on any and all domestic political surveillance of his campaign and turn it over to Don McGahn? Can he direct that that happen?

NK: Well, again, I think that the point, I think you can’t just say is it Constitutionally within his power. It also has to be is it consistent with the traditions and the rule of law for him to do so. And the answer to that is undoubtedly no, which is why presidents don’t do this. They don’t even come close to the line.

HH: I think, though, Neal, the rules are changing in this environment, and maybe for the good or for the bad, I just want the audience to understand the framers clearly, in my view, would have had the president defend his Article II powers. Put aside Trump, put aside Nixon, put aside Clinton, just the presidency.

NK: No, no, no framer, Hugh, I mean, you know, I’m a scholar of Constitutional law. I have sat in archives for many, many years reading the founders’ words in the originals. You can’t find any source for the idea that the president, that they would have wanted the president to do this and to tell his own Justice Department to interfere in an investigation into his own wrongdoing. No founder would have stood for anything like that.

HH: What about Federalist 69?

NK: Yeah.

HH: It’s an Article I issue, not an Article II problem.

NK: There’s nothing in Federalist 69 which suggests anything like what you’re insinuating. Sorry.

HH: Okay, we’ll have to disagree on that. If, in fact, the president, and last question, Vicki Toensing just said the Rod Rosenstein response is a sham, that he and Mr. Mueller of great reputation as a straight arrow and Christopher Wray are never Trumpers, and that the IG can’t subpoena anyone, that’s why it’s deficient. What’s your response?

NK: Well, I have no idea what the political affiliations of these folks are. I mean, I have read that Robert Mueller has been a lifelong Republican and the like. You know, so I’m always a little skeptical when people are attacking someone’s political motivations. And Rod Rosenstein, after all, is Trump’s guy. He was appointed by Donald Trump. So he was put into the position. He’s not some holdover from Obama or something like that. He is literally Trump’s guy. So you know, it seems a little weird to me that they’re criticizing their own guy. But you know, it seems, you know, in the face of an unprecedented request from the White House or an order from the White House to investigate the investigation into his own wrongdoing, I think, Rosenstein said you know, I’m going to give this to the inspector general. And I heard Ms. Toensing attack the inspector general, but boy, that sure seems, you know, these folks just seem content to attack everyone in public. And you know, I just don’t think that’s good for the country.

HH: So Neal, I said it was the last question. We only have 30 seconds. Do you believe in the good faith of everybody involved at the Department of Justice?

NK: The good faith of everyone involved? You know, every person I ever met at the Justice Department, Republican or Democrat or you know, independent, I always came away deeply, deeply impressed.

HH: That was my experience. That was my experience.

NK: Yeah, yeah.

HH: I keep telling my friends that was my experience, but please keep coming back. I appreciate you coming this morning, and former acting solicitor general of the United States, Neal Katyal, if I ever get in trouble, I’m calling you. Thank you, my friend.

NK: Thank you, my friend. Bye bye.

End of interview.


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