Victoria Toensing joined me this morning to talk about the investigations swirling around President Trump and his announced intention to direct the DOJ’s review of surveillance of his camapign –if any– in 2016:
HH: When I joined the Department of Justice in 1984 as a very young special assistant to William French Smith, there was this hotshot deputy assistant attorney general for the criminal division that everyone said don’t get in an argument with Vicki Toensing. And I never did. I just stayed along the wall when she would come and brief the AG. And so she has become, of course, one of the country’s best known white collar defense lawyers, along with her husband, Joe DiGenova in the firm of DiGenova-Toensing LLP, one of the best white collar defense lawyers and Constitutional law experts. She wrote ten days ago about the President’s vulnerability of not to being indicted and subpoenaed, and she joins me to talk about that. Good morning, Vicki, how are you?
VT: Boy, it’s good to talk to you on this wonderful day, finally, in Washington.
HH: Yeah, finally. We’re getting a little bit of spring instead of summer. Vicki Toensing, you said last week the President cannot be indicted. Would you explain that to the people who are listening? I hold the same view. I’ve said it many times. But you’ve got the authority here. Why can’t a president be indicted?
VT: There are two OLC opinions, and OLC, as you well know, is the Office of Legal Counsel. And it really is, although it’s housed in the Justice Department, it really speaks on the law for the entire executive branch. And both of these opinions, one by a Republican Justice Department, and one by a Democratic Justice Department, state that the president cannot be indicted for not only Constitutional reasons, but also for very practical reasons, and I can go into them.
HH: Please explain, because people need to internalize this before we got to the next question of whether he can be subpoenaed. He cannot be prosecuted. He can only be impeached. By the way, that goes back to Federalist 69 by Alexander Hamilton.
VT: Well, but the first opinion was 1973 with Nixon and Watergate. Of course, you know, the OLC would be opining then, and they go back to an 1838 case where they say the president is beyond the reach of any other department. That’s the Constitutional basis, like he cannot be called to have to report to the judge any more than President Trump can call in John Roberts and say hey, why did you screw up that Obamacare case?
VT: You know, tell us what your reasoning was. It’s just the same principle. It’s not that the president, or Donald Trump is above the law. It’s this is the way the Constitution was written.
HH: And I might add the president cannot tell Mitch McConnell what to do today. He cannot dictate to the Speaker of the House what, this is called separation of powers.
VT: That’s right. Well, he can tweet it, but McConnell doesn’t have to listen, and usually he does not. But there are also some practical reasons, Hugh, and that was where’s he going to find a neutral jury?
VT: And so, Washington, D.C. where it’s 90% Democratic? If a Republican just walks into the courtroom, he’s going to be convicted. And just forget a trial. The opinion says you know, if we do this, one prosecutor and a majority of a grand jury can undo a national election. We can’t have that.
HH: Very well said. So extend this to…
VT: And so the whole Congress, which represents the nation, should undo a national election.
HH: And that’s in the impeachment process. It’s a purely Constitutional division of labor. So take us now to the Special Counsel, who is authorized under the regulation of the Department of Justice, and Bob Mueller, you probably know very well. Can he subpoena the president, in your view, to appear before a grand jury?
VT: No, he cannot for two reasons. One of them, it’s an abuse of the grand jury, because according to the U.S. Attorney’s Manual, the grand jury can only be used to bring back an indictment or a no true bill, which means they refuse to indict. So for what purpose is he going to interview President Trump? It could only be that he would then present the testimony to Congress, but Congress is, they shouldn’t be using the tools of the executive branch if they’re going to consider impeachment. Now what Congress can do is say well, Donald Trump refused to speak to Bob Mueller, therefore that’s an impeachable offense.
HH: Yes, they can, and let’s underscore that. If Rudy Giuliani advises the Special Counsel that the president will not now, not ever, never sit down with him, the Special Counsel can file a report that the Congress can take notice of indicating that this was the fact sequence, and then the Congress can decide this term or next, this session or next, to impeach him for that reason.
HH: Now explain…
VT: And Mueller should not be using the tools of the executive branch to give to the legislative branch, because that, besides abusing the grand jury, that’s a separation of power issue.
HH: Now can the president direct the deputy attorney general, who’s got the lead here as a result of the Attorney General’s recusal, can the president direct Mr. Rosenstein to direct the Special Counsel not to subpoena him?
VT: He could, technically, he could do so. I just don’t think that that would be wise, politically. My counsel to the president, and as you know, I’m only giving it now on radio, is that he should fight it in court and use it as a shield, not as a sword.
HH: So if the, wait until a subpoena were to arrive and then challenge is as opposed to…now you and I may have a difference of opinion here, but I’m interested in your logic. Why do you think it’s politically bad for him to exercise his Article II powers to direct his own deputy attorney general not to do unconstitutional things?
VT: I just think politically, you know, the Republicans are so bad at messaging, and so they would not be able to defend that. But if it goes to court and a judge rules that this is unconstitutional or an abuse of the grand jury or whatever basis, then he’s on much more solid political ground.
HH: Okay, now Vicki Toensing, I’ve got to be very careful here, because you and your husband, Joe DiGenova, sat down with the president and talked about legal matters. You cannot reveal what you discussed with him.
HH: I don’t intend for you to do that. I do ask can you opine on what you would advise the president today about a request for an interview, because I’m of the not now, not ever, never category. But Rudy Giuliani continues to go back and forth in his public statements about whether such interview will occur.
VT: You know, maybe Rudy’s just kind of positioning, playing, he and Donald Trump are like two peas in a pod, and I think maybe Rudy’s kind of just jockeying around, playing games. But I predict in the end that Rudy will advise against sitting down, and of course, it’s always up to the client. And so it’s the president’s call. But I would say, here’s what I would say, and I’ve said this to another client who’s a former member of Congress who we still talk, and he continues to thank me every day. I say you want to go down to that grand jury? I’m going to go stand in that door, and I pointed to the door in his office, and I said and you’re going to have to do it over my dead body.
HH: So what is your answer to people who say the refusal to sit down is an admission against interest of guilt?
VT: Well, no it’s not, because you have a 5th Amendment right not to do so. But it’s, this is unconstitutional. This is a bigger, this is not you or me. This is the president of the United States. He is diluting the presidency by sitting down and answering to another branch.
HH: See, that’s what, there are two answers. There is a 5th Amendment right, but my answer is he is the president of the United States and a unitary executive, and he ought not to submit to the demands of a lower ranking official within his own branch.
VT: Right. Right, and that’s what Bob Mueller is, the lower ranking official. See, and this is distinguishable from Ken Starr. Ken Starr was appointed under the independent counsel statute. And Lordy knows what kind of legal animal that was, Hugh, as you well know.
HH: I know. 8-1 upheld by the Court, very disappointing.
VT: Disappointing, and of course, Nino Scalia, God rest his soul, was the lone dissent. But we don’t know what kind of animal it was. Was it a judicial animal? Was it an executive branch animal? But Special Counsel Bob Mueller, this is, he was appointed under the regulations of the Justice Department. And he is absolutely clearly an executive branch employee.
HH: Now talk to me a little bit, Victoria, about whether or not when the request comes, if the president turns it down, will it necessarily be public that the request came? Or do you believe that the Special Counsel may himself be jockeying?
VT: Well, I don’t know. I think there’s a maybe 15-20% chance that Mueller would not subpoena the president because he knows the law. I mean, he knows the president. They’ve admitted the president cannot be indicted, so why is he using the grand jury? But I would counsel the president, you’re just putting him right on that plane to either say I’m going to subpoena you or not. Do not work out a deal, not even for one question, because that is a violation of the separation of powers.
HH: 100%. 1000% agree. Let me switch subjects. The reports in the New York Times and the Washington Post have given us a very good indication building on the reporting of Chuck Ross for the Daily Caller of who is the FBI “informant”. As I said on the Meet the Press yesterday, I don’t know if it’s an informant or an agent or a…
VT: An agent provocateur.
VT: I’m calling him an agent provocateur.
HH: That’s probably…does the president have the authority, in you view, to direct the Department of Justice to provide his counsel with a confidential report of everything that the FBI and the DOJ did vis-à-vis his campaign in 2016?
VT: Yeah, if the Department is saying that that’s classified, then he can declassify it and get that made public. I mean, you know, forget confidential. Have it made public. I have said, first, Hugh, back in December on Fox and Friends that there was a brazen plot to clear Hillary Clinton and frame Donald Trump. And brazen plot seems to be the term.
HH: Hold that, Vicki, if we can, if we can hold you through the break, I would like to. I’ve got an open segment after the break. I’ve love to come back to this, because I believe he has that authority as well, and we need to talk about this. And so we’ll have our producer pick up and talk to you.
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HH: Vicki, we were talking before we went to break about the president’s direction via Twitter yesterday that the DOJ, he’s going to demand that today they get to the bottom of what this agent provocateur/informant, whatever this person is, was doing. What do you make of his demand? And what do you sense happened in 2016?
VT: Well, let me just say that this demand was right on, and the response by Rod Rosenstein was embarrassing. It’s a sham. He’s going to have the IG look into it? The IG? Now how is the IG going to talk to Sally Yates who has left the Department? The IG doesn’t have that power. He doesn’t have grand jury authority. What is this? This is a, this is a, as I say, it’s a sham. There’s no other word for it. Does Rod Rosenstein think we’re all that stupid? That he’s the only smart guy on the block?
HH: Does the president have the authority to direct not an IG, but an investigation via an…
VT: Yes, he does.
HH: Explain for us.
VT: And he should do so.
HH: Explain how that would work.
VT: Well, he’s the chief law enforcement office of the country, so he can certainly direct that an investigation occur.
HH: So would he tell that to the Attorney General of the United States? Or would he tell, would he send a memo, would his White House Counsel send a memo saying no, not the IG, a U.S. Attorney fully invested with the authority of that office, whether it be a Joe DiGenova, Jay Stephens or somebody like that, has got to be given the authority to look into what happened here?
VT: Yes, and somebody with grand jury authority. So whether it’s a special counsel, oh, my, geez, you know, do we have special counsels looking at the things that we know are criminal? You’re asking me what do I think happened. I started to talk about it on the other side of the break, which was there was a plot. There was a brazen plot to get Hillary Clinton cleared from her clearly criminal culpability. And then if she didn’t get elected, they would see to it that Donald Trump would have a horrible presidency. And indeed, it hampers somebody. All these people that go around saying oh, well, if he’s innocent, what’s the problem? Well, let me tell you what the problem is. Scooter Libby had that issue. He went in and he said X before the grand jury, and somebody else said Y. And Patrick Fitzgerald indicted him, because his testimony was different from somebody else’s. This is a strain on somebody. It’s a mar on the presidency every time he needs to talk to a foreign leader. What do they do? They say well, how’s this investigation going?
HH: And so Vicki, just to go back and put a bow on it, why do you think Rod Rosenstein’s response yesterday via Sarah Isgur Flores is a sham?
VT: Because the IG doesn’t have any authority. The IG can only talk to people who are in the Justice Department. So how is he going to talk to Brennan? How’s he going to talk to Clapper, Sally Yates, all these people who were involved in it? It doesn’t work.
HH: Do you think a complete investigation would require an under oath interview of Mr. Brennan, Ms. Yates, and Mr. Comey?
VT: Oh, absolutely. They should have been in the grand jury. Now my question is why wasn’t Rod Rosenstein already looking into this? What he should have said in response to the president’s tweet was well, we’re already looking into that matter. They were just sitting around sucking their thumbs while all this has been going on?
HH: Okay, so go up to 30,000 feet. What do you think happened? You’re very wise in the ways of Washington and politics. I left town for 28 years. What do you think happened here in 2016?
VT: I think they were never Trumpers in the government, and they truly believed that they’re saving the country. They’re evil people that while we’ve got to save the country, so this is what we’re going to do. And everything they did was unconstitutional. Remember, that’s what Richard Nixon did. He thought that he was saving the country by his activity. It wasn’t just basic corruptness of breaking in. He thought he needed to save the country. These people did the same thing.
HH: Why do you doubt, though, Christopher Wray is a Republican. Rod Rosenstein is appointed by the president. Bob Mueller was the former FBI director appointed by George W. Bush. Why doubt those three people?
VT: Because they’re all never Trumpers. And Christopher Wray, I had an issue with him when he was assistant attorney general, and he didn’t have the cajones to take in a corrupt U.S. Attorney. He ignored it.
HH: So they’re all never Trumpers. That is very blunt. Vicki, that’s why I love talking to you, thank you for joining me this morning.
End of interview.