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Home , David Frum, Malcolm Nance

TF 41 Is the Dam Breaking Part 2

Harry Litman [00:00:05] We are back at Politicon in Nashville, Tennessee, and we are still ​ ​ live. Welcome back to Talking Feds Prosecutors Roundtable that brings together prominent former federal officials for a dynamic discussion of the most important legal topics of the day. I'm Harry Litman. I'm a former attorney and deputy assistant attorney general and a current Washington Post . Today, we're back at Politico on for the second part of a discussion around one question. Is the dam finally breaking?

Harry Litman [00:00:44] These are days that are going to be in the history books one way ​ ​ or another. We'll be talking about comparing and contrasting these days for our lives and the lives of our grandchildren. Our panel yesterday focused on the political and strategic considerations in Congress and and the White House around the impeachment effort. Today, we turn to two other aspects of the accelerating snowball downhill that is the Trump impeachment and to discuss. We have a fantastic panel with two brilliant commentators, seriously, and both first time visitors to Talking Feds and one charter member, well-known, I think, to everyone here. Talking Feds regular Barb McQuaid hi, everyone.

Barb McQuade [00:01:40] Thanks, Harry. ​ ​

Harry Litman [00:01:42] Barb, as you know, is the former United States attorney for the ​ ​ Eastern District of Michigan. She served as vise chair of the Attorney General's Advisory Committee CO chaired the Terrorism and National Security Subcommittee and is currently a professor from practice at the University of Michigan Law School.

Harry Litman [00:02:02] Next, author and political commentator David Frum joins us for ​ ​ the first time, he's a former for President George W. Bush. He is, to my mind, as thoughtful and as moral a voice within the Republican Party that exists today. And his strong identification with the party coexists with exceptionally trenchant criticism of what ails it and where it needs to go. David's the author of many books Trump Autocracy The Corruption of the American Republic, to name a a prominent one. He writes for . Oh, and he coined the phrase . David, welcome.

David Frum [00:02:48] Thank you. ​ ​

Harry Litman [00:02:51] And finally, Malcolm Nance. Malcolm is a former. One, two, ​ ​ three. I think you've won the dance contest, a former officer involved in numerous counterterrorism intelligence and combat operations. He's done the real deal. And since leaving the service, he's become a premier intelligence, national security and foreign policy analyst, especially on various terror groups. He wrote, by the way, a fantastic book on ISIS a few years ago that you may want to get back off your bookshelves after today's news and his latest book, The Plot to Betray America, a richly detailed argument of the Russian campaign to secure influence over our president. just came out this month. Oh, and he speaks Arabic.

Harry Litman [00:03:50] Malcolm, thank you very much for coming. I'd actually like to start ​ ​ with you because we're here. Sure. Having just received the breaking news of the killing of the prominent terrorist Abu Baqir, al Baghdadi and I think probably no one in Nashville or Tennessee or maybe the United States knows more about him and that event. Could you just give us sort of three to five minute, however you long, but give us the basic skinny on how important this is and who this guy was?

Malcolm Nance [00:04:25] Well, thank you for the introduction. The first thing I'd like to do ​ ​ is we really owe our men and women of the armed forces a debt of gratitude for carrying out an exceptionally dangerous mission. I mean, the people who carry this out are literally the tip of the spear in every aspect of special operations and intelligence. And we do have to give props to the president for having the wherewithal to sign a national finding that would direct them to go and kill Abu Bakar Baghdadi, a man who deserved to die.

Malcolm Nance [00:05:03] I mean, some people in this world need to be destroyed. As ​ ​ the leader of ISIS, he was at the top of the list, however. Let's put this into context. Abu Bakr al-Baghdadi was a very junior level player in the early 2000s in al-Qaida in . He was an Iraqi. And he didn't become extremely radicalized until he was captured by U.S. forces and sent to a U.S. prison camp in southern Iraq. Camp Bucca, where at the time when I was in Iraq, we were calling that the Jihadi Postgraduate School, and we were actually the people we were collecting. We're getting lessons learned from each other and becoming more and more radical to where Iraqis who would have been with the Saddam Fedayeen or some other local Iraqi group were now joining al-Qaida in Iraq. And then what would become the Islamic State of Iraq, which Abu Bakr al-Baghdadi became the commander of in 2006? So when you hear those tropes about, well, what is it, inventing ISIS? Well, no. ISIS existed as a rebranding of al-Qaida in Iraq. Abu Bakr al-Baghdadi took over that organization in the low years between 2006 and 2011. And then when the Syrian civil war started, they sent forces to and they were actually supported directly by the government of Syria. So when the civil war started, they just went back to the bases and stole all the weapons that they were getting for free from the Syrian government and became the Islamic State of Iraq and Syria. They executed Osama bin Laden's concept of the Islamic State of a caliphate, which would be a central location where all jihadis could come together. But bin Laden was smarter than that. You have to remember, Osama bin Laden was the man who killed 3000 American citizens on September 11th, caused the deaths of seven thousand U.S. service members in the war in Iraq and Afghanistan and the deaths of hundreds of thousands of civilians in all of the wars that are being carried out through the Middle East and North Africa. Abu Bakr al-Baghdadi was the Islamic State's figurehead and general operational commander just within their caliphate. So historically, bin Laden is a giant, enormous figure, you know, akin to Adolf Hitler. Abu Bakr al-Baghdadi would be essentially, you know, the governor of Silesia in World War 2 or or Erwin Rommel or something like that, a smaller figure. But he definitely needed to be done away with.

Malcolm Nance [00:07:43] And after five years of collecting intelligence and we've learned ​ ​ recently the Kurds provided a lot of intelligence, we learned that Osama bin Saadi Abu Bakr al-Baghdadi was finally taken down in a special mission by our Tier 1 special operations forces.

Harry Litman [00:08:00] Thanks, Malcolm. All right. Let's push ahead with our overall ​ ​ theme of is the dam breaking? Finally now? It feels as if a narrative of profound abuse of power, one that the American people we learned of one month ago, if this is all developed and that quickly is really now basically been established nearly beyond refutation on the facts that those are the facts on the ground floor for the White House, for these that congressional Republicans, the congressional Democrats. In the meantime, the White House is taking its lumps in the courts, most recently Friday, with a decision saying that the Congress has is entitled because it's. It's carrying on a valid process, potentially leading to impeachment. To see the grand jury materials that developed, which adds all kinds of possibilities, maybe ones that they don't want to exploit, but possibilities for Congress and in the case they are constitutionally prescribed to prosecute. So. From other other bombs are also in position to go off the most incendiary. I think being the potential indictment of Trump's personal attorney and the nation's shadow secretary of state, , who we also learned last week, is the subject of a counterintelligence investigation and a prolific but dialer. Let's start with him, because I see him as the sort of, you know, crazy comic book villain lurking in the background, but destined to be the number two figure after only the president in the coming impeachment battle. And I'd like to just talk about a few different aspects. Barb, you wrote or co-wrote a really interesting article this week detailing Giuliani's possible criminal exposure here and now. But based both on events that are ancillary to the impeachment charges involving Trump and Zelinsky and others that are central to it is an indictment likely, as you see it, speaking as a former prosecutor. And would it be for conduct related to the Ukraine? How do you sort of book these possibilities?

Barb McQuade [00:10:29] Yeah, thanks, Harry. Thanks for inviting me to be here for ​ ​ Talking Feds. And I also want to thank the folks at Politicon. I've always wanted to come to Politicon because I'm so delighted to meet the people who are here, engaged citizens who want to learn more about what's going on in our democratic processes. You know, a democracy depends on an engaged electorate. And so it's wonderful that we have this convening. And thank you all.

Harry Litman [00:10:50] We've got him here, don't we? ​ ​

Barb McQuade [00:10:55] But to answer your question, Harry. Yes. Joyce Vance and I ​ ​ were friends, former U.S. attorneys, and we drafted what an indictment might look like against Rudy Giuliani for just security. I believe he could be indicted today for crimes relating to Ukraine, charges of conspiracy to defraud the United States in the administration of fair elections. Number one, conspiracy to commit bribery by demanding a thing of value that is dirt on Trump's political rivals in exchange for the performance of an official at that is the delivery of military aid to Ukraine. And contempt of Congress for disobeying a congressional subpoena. And I believe the unindicted coconspirators there would be someone we called individual one President Trump.

Harry Litman [00:11:44] And so now what do you think about, you know, things are ​ ​ different from when we were both U.S. attorneys. But we have a real sense of the kind of interplay with main justice where big cases like this are involved. People are immediately wondering what such a proposed prosecution would the boot be put on the neck of the prosecution by the attorney general, deputy attorney general. Would it go forward and or would they, in fact, try to squash it?

Barb McQuade [00:12:17] You know, I don't know. I think in administrations past, I would ​ ​ be very optimistic that an indictment would go forward. I think has caused me not to give him the benefit of the doubt based on his conduct to date, although I think there was a little bit of a tell when the Justice Department recently issued a statement that said that they had had a meeting with Rudy Giuliani about some of his clients and then immediately issued a really unusual statement saying that if they had known about some of the other activity relating to partisan Frumin, they would not have had that meeting. And so what it begs the question, how do they not know what the right hand in the left hand are doing? But even if that's true, it does suggest to me that they recognize that there's something very improper about having a meeting with Giuliani when he may be under investigation. And that, to me is a little bit of a tale that he is indeed under investigation and that charges might be him.

Harry Litman [00:13:13] Yeah, I took that definitely as a tell that he is a real suspect. And ​ ​ there's a real possibility for Giuliani to be my best bet, which is everybody. He's he's not going to be the one clasped to the bosom of the White House and defended to the death. I think he is basically going to be discarded to the dogs even by by DOJ. We will see. David, what would be the sort of political implications for the impeachment battle of a Rudy indictment?

David Frum [00:13:42] Well, first, let me say it. It is heartbreaking to watch this happen to ​ ​ Rudy Giuliani. We were talking.

Harry Litman [00:13:48] And Bill Barr,. ​ ​

David Frum [00:13:49] Malcolm was speaking of what happened, the events of 9/11. And ​ ​ we all remember the heroic role that Rudy Giuliani played on that day. I volunteered on his presidential campaign in 2007 and 2008.

Harry Litman [00:14:00] Was that partly the reason you'd been inspired by seeing him ​ ​ then?

David Frum [00:14:04] I'd also been a resident of New York in the early 1990s and saw ​ ​ the difference that Rudy Giuliani made as mayor to turning around America's greatest city. So it is heartbreaking. And I think it is an example of the kind of the one genius that President Trump has is to identify little moral cracks in people and find where pressure can turn a moral crack into a moral smash. And it is just it is heart rending to see from a political point of view. I think the main impact of of a Giuliani impeachment, it will suppress indictment. It will surprise him. It will antagonize him. And an attack.

Harry Litman [00:14:40] Him being Giuliani. ​ ​

David Frum [00:14:41] And as with the firing of , it adds the number of moving ​ ​ parts of this operation. People who know a lot, who were on the team and who are now have independent interests. And Giuliani will then begin to make a calculation, as John Bolton is making a calculation, how much to say, how much to reveal, how much to look out for his own interests separate from those of the White House. I am not optimistic that this impeachment process ends in a dramatic way. I think it is more likely to end in a fizzle. And I've been very cautious about impeachment throughout. I've I've written about the dangers of it. But this could perhaps shake just enough loose. The goal here is not to think about removal. That's with two thirds of the Senate required. That's obviously a very far stretch. But setting the table for 2020 and persuading a lot of soft Trump voters. Look, I know you're not going to cast a Democratic ballot on issues of process, but you maybe could make 2020 a new year. Are you? Maybe you have a business, maybe have kids in school. Maybe you've got that woodworking project you've been meaning to get to make 2020 the year for that focus on you and then reenter politics in 2021, because I guarantee you the next president will do things you don't like and you can get activated then.

Harry Litman [00:16:00] Yeah, by the way, it's a great point about the moving parts. ​ ​ Remember with Mueller, they you know, the White House successfully circled the wagons. Really, everyone that Congress wanted to hear from, they were able to Perry sometimes by going to court, stalling for time. And of course, some of those decisions are now coming home to roost, except we have the Ukraine situation where they where they will play out. But for whatever reason, I think probably because this happened in a living government where there were many official State Department and others, the Fiona Hills and William Taylors of the world, we've had many people who we know. They knew the White House didn't want to testify and they said, no, I'm coming forward either to do their duty. You know, you've got a congressional subpoena. You're supposed to deliver the information or as David says, because there's 5 degrees, 10 degrees, 15 degrees separation between their interests and those of Trump. And you see people wanting to think about their own futures.

Harry Litman [00:17:03] John Bolton would be a phenomenal example if it comes to pass. ​ ​ Malcolm a lesser covered event, but strikes me as a huge one nevertheless. Last week was with with Uncle Rudy was the announcement. He is apparently the subject of a counter intelligence investigation and not just a casual one. Is that is that true? Is it just unsubstantiated rumor? And what does it imply about what the bureau or thinks about what he may have done?

Malcolm Nance [00:17:38] Well, I find it fascinating that the Bureau, of all organizations, ​ ​ the one that he had his fingers in the deepest, considering that he was U.S. attorney for the Southern District and seemed to be very successful in using the bureau as a source to attack for over a year.

Harry Litman [00:17:56] So now I just tell you, they they leak like a sieve to him. Yeah. ​ ​

Malcolm Nance [00:18:00] And for for the word to come out that there is a ​ ​ counterintelligence investigation against him means that there is something that is far more significant and in and how can I put it ominous about his behaviors. And they don't take these words likely. I mean, I come from the intelligence side. Counterintelligence means that we think you were working for the other team. Okay. And when they started counterintelligence investigation, a lot of things happened. We saw this with Carter Page.

Harry Litman [00:18:35] What's the actual legal predicate? ​ ​

Malcolm Nance [00:18:37] The legal predicate is that they have suspicions that you are ​ ​ working or working directly for or under the pay of a foreign government, either in terms of as an intelligence operative or someone who may, in fact, just be an idiot. And they are. You don't realize that you're falling under their sway. But U.S. intelligence sees it happening. So we don't know a lot of the information that's out there. I can tell you right now, as somebody who's been involved in activities that went on to become national counterintelligence operations, there are systems resource. And personnel that are not of our government that give us information so we don't know if the government of Ukraine is literally dropping videos and audio recordings of Rudy Giuliani breaking the law. We don't know that it could be a sister agency like Estonia or Latvia or some other place where he thought he was cure and got off the plane from Ukraine and use the phone and as a high value target, a NATO ally collected on him. I mean, there's a lot of sources. So for them to even hinted that. I'll leave that to you guys. That's bad.

Harry Litman [00:19:52] You take it as established that the counterintelligence ​ ​ investigation exists.

Malcolm Nance [00:19:58] I don't take it as a fact until we actually see an indictment. I ​ ​ was of the mind. I didn't think Rudy was going to get through last week without being arrested. To be quite honest, I mean, everything appeared to be as you say, it wasn't a dam breaking. It was this giant avalanche like the side of a mountain sloughing off of the things. But Rudy Giuliani was at the center of everything.

Malcolm Nance [00:20:23] And I've just written a book about all the dirty tricks teams of ​ ​ the Trump era from 2016. One, I didn't have Giuliani that deeply involved, which shows you that he was who he was. Trust Trump and him crafted a Michael Cohen relationship and they buried Rudy deep. And Rudy was the guy who is now the fixer. And I suspect he's going to go to Michael Cohen, where I think he's going to go to prison.

Harry Litman [00:20:50] I mean, it could well, it could well be certain they buried him deep ​ ​ in a way, but they made it very clear to people who could report it to the country that he was in charge.

Harry Litman [00:21:00] I I get your point about Ukraine, by the way, struck me there in a ​ ​ very interesting position here. We take them as just a sort of I we're prone to take them as a generic small country. But we have I think there are two things to point out. First, for them politically, it's a tricky calculation because they know that Trump may not be president in 2020. And to be so much on team Trump really threatens good relations with the US going forward. And second, from the little we can tell, Zelinsky actually seems to be a really stand up interesting guy interested in ferreting out corruption, changing the culture, being fully separate and a sort of moral democratic wave from . And that would also indicate other things.

Malcolm Nance [00:21:49] And I make a quick point on that. There are two Ukraine's at ​ ​ play here. There's the pro Moscow government that Paul Manafort was working for. That appears to be the oligarchs who are funding and involved in this entire operation. Then there was the pro western Ukraine, which now supposedly Zelinsky is part of, who are in war with Russia. So the reason we're seeing both right and left sides of Ukraine here is and even more interestingly, it appears that but that Giuliani is engaged in getting Manafort off. Yeah, but I mean, everything swirls around all of Paul Manafort, dirty Ukrainian billionaires to make this rumor up that Hillary Clinton was actually going with the pro west Ukraine government to throw the election in 2016.

Malcolm Nance [00:22:47] So when you think of Ukraine, think of the two sides, Giuliani's ​ ​ own security side. And then there's these Zelinsky government, most pro-Western Ukrainians who don't want any part of this.

Harry Litman [00:22:58] I mean, right. July 25th call is first the day the Mueller report ​ ​ dropped. And the beginning of it is an effort by the president, a valid to undo some of the findings of the Mueller report as they relate to Manafort. OK, so we've heard. Let's close out our discussion. Giuliani with I wanted to ask Barb and Dave if they have additional thoughts. We've heard the name Cohen bandied about.

Harry Litman [00:23:26] Manafort Is Rudy Giuliani the next Manafort in the sense that no ​ ​ matter what happens, going to jail, you know, we're losing to pay whatever he wills. He will stand solid and never, never turn. Or is he someone who really is a potential danger for. Oh, and by the way, play for a potential pardon? Or is he someone who is an actual danger to the White House? It's raw speculation. And maybe you don't have thoughts, but do you?

David Frum [00:24:00] I have a couple of thoughts on this. The first is I don't think ​ ​ Manafort has held silent only because of hope for a pardon. I think Manafort has held silent because of fear of some very ruthless players, much more ruthless than anybody inside the United States. Russian players, Russian players and Ukrainian players, and who knows who else he was doing business with. So there are worse things than being alive in an American jail. And I think he may be mindful of them. Rudy Giuliani doesn't have that consideration. The second difference between Manafort and Giuliani is Manafort seems to have a really astute awareness of realities. Giuliani not so much. A lot of his comments say. I mean, that he would when he was involved in fabricating these stories, he actually sort of believed them, too. And he seems kind of disconnected from reality in a way that Manafort does not. Finally, Manafort has always been a staffer. That's how that is. Throughout his career, he's been a political manager. He's been a political operative. Someone else has been on the stage. Giuliani was a principle. Giuliani, who was mayor of New York in the eyes of history, was merely ran for Senate. He was someone thought about running for president. The idea that he's going to say, I'm going to stay, I'm going to sacrifice myself for the big boss. I don't know that that's the way his mind really works. When Giuliani emphasized his status as Trump's personal attorney. That was not an act of humility. That was a statement of privilege that, you know, you can't ask me certain questions because I'm a I'm a personal attorney, that if I had some other relationship, I would I would not be able to be immune for one more thing, and I wouldn't pick up on that. You and Malcolm were just saying about Ukraine. It is true that naturally Americans make themselves the center of the story. But this is a country fighting for its life. Its territory invaded part of its territory, foreign occupied in the period while Donald Trump was withholding aid for his own purposes. In the month of August, twelve Ukrainian soldiers died. The month of September was the bloodiest month in years in the fight between Ukraine and Russia, with 50 Ukrainian soldiers killed or wounded. And there are real world costs to this divided society. I've been there. I've had a chance to spend some time. It isn't, as Malcolm said, a deeply divided society with forces that want to be modern, forces that don't. But you know, one thing I'm going to quote my friend Anne Applebaum, who spent a lot of time in Ukraine and and said, I am so tired of hearing Americans refer to the corrupt nature of Ukrainian politics. You know, who is corrupt politics and a lot less excuse for the United States as corrupt politics. And this is a country that has been stunted by famine and Soviet communism and post-Soviet dissension and invasion. And their political system is not a model. What's our excuse?

Harry Litman [00:26:50] Yeah, well, let me just say let me just put in a quick plug for ​ ​ someone I've never met and long admired. Anne Applebaum, when you when you come to this part of the world is tremendous, thoughtful, knowledgeable, brilliantly analytical. Okay. Did you have any any final, any thoughts about Rudy? Is he an actual risk to to Trump? You know, is he a loose cannon or not?

Barb McQuade [00:27:18] Yeah. You know, there's been a lot of talk about whether ​ ​ President Trump would throw Rudy under the bus. I think Rudy will jump to throw President Trump under the bus if it suits his purposes. You know, I come from the world, the same world. Rudy Giuliani comes from that of a US attorney, a federal prosecutor. It is the way we build cases is to flip witnesses and to get them to testify against more egregious offenders. Giuliani knows that. And I think he would be only too willing to trade prison time in exchange for information about others, including President Trump.

Harry Litman [00:27:47] OK. All right. Look, let's. So I want to move now to the more ​ ​ concrete discussion of the impeachment effort. And there's a lot of focus on what would be the main article of impeachment. We know that. We've talked about it at a minimum. This this central chapter, an abuse of power and a count on the actual obstruction involving this very investigation. But there's obviously so much more and there's a strategic call and maybe even a moral call. Part of this is being done for history about other aspects of the what's happened the last couple years. I wanted to ask each of the panelists a question about that. So let's let's start what back to you, David. You know, you've written more eloquently than anyone about the sort of toxic effect, the fundamental derogation of American values of Trump's divisiveness. I mean, that's a real reason why he has been not just a poor president, but a but a dangerous and deleterious one. So we hope that in some happier day, we'll study the Trump presidency as the kind of dying efflorescence of a certain brand of hateful politics. And the Republican Party does that. Figure in the moral case for impeachment, does it figure in the practical case for impeachment? Is that just sort of background to the specific concrete charges that that the House may contemplate?

David Frum [00:29:30] The House, I think, is now more or less a foregone conclusion. So ​ ​ although that's the drama and the story, they'll pass it or what they'll say that that the House will impeach. I think it's pretty much a foregone conclusion. I would guess there will be three articles of impeachment, one having to do with abuse of power, the use of official position to extract a benefit by withholding you, by withholding the aid. I think there will be a second. I'm guessing an obstruction of justice charge to serve as sort of a catchall for further bad facts that come to light so you can present those when they come before the Senate. If the Senate can in the Senate can do what it wants, but has to operate within the articles, you need a charging document. Right. But then once you have the charging document, there's a lot of things you can read into it. And then I think there will probably be a third count having to do with contempt and refusal to answer questions. That would be just my guess. I mean, I think those things will pass probably quite expeditiously before before Christmas, certainly maybe even faster than that. Then the action moves the Senate, and that's where the legal and the moral yield to the political what President Trump will have going for him. The Senate is the spirit of tribalism. And that's what we saw on display when those members of the Republican members of the House caucus attacked the security facility underneath the Congressional Visitor Center. He will also have an awareness among Republicans that he takes them down with them. I mean, it doesn't happen that you turn on a bad president and the public says thank you for your service and rewards as as the Nixon impeachment of 1974 showed. You don't get rewarded for the turn. You get punished for the long association. And so the price of a removal or a near removal will be Republican losses in 2020. And they all know that. So those are the assets the president has. What he has against him are, one, be incredibly guilty. But more important than that is the wounds and insults that he's inflicted on members of the Senate. I mean, senators are not like House members. You cannot kick a senator and expect the senator to forget about it. The senator remembers and the senator has a sense of what is owed to that person as a member of the Senate. And so not only does Trump have to worry about the people like , who does have a very strong moral core, he has to worry about people like Lisa Murkowski, the senator from Alaska, with a strong independent streak who won election as an independent and doesn't owe the Republican Party much as it tried to take the nomination away from her. But he also has to worry about people like Ted Cruz, who are more or less political allies, come from pro Trump states. But Trump insulted Ted Cruz. And just about every way it's possible insult a human being and tell him his dad and his dad and his wife and him and Ted Cruz is not unlike Marco Rubio is not one of nature's doormats. Ted Cruz is not somebody who's like, you know, who has forgotten those things. And there are a number of other senators in that position who are saying, you know, so long as you look scary, we'll be scared. But the moment you don't, we have our own private agendas.

Harry Litman [00:32:39] He seems to really have a sense of that. You know, you have to ​ ​ at all times look aggressive and scary, but you seem to have a follow up. But I actually wanted to ask you, you know, we're looking at a different kind of almost auxiliary conduct, but that seemed, you know, really at the core of what when we think about Trump are, you know, so worrisome.

Harry Litman [00:32:59] And so the general assault on the rule of law, the complete ​ ​ indifference to legal norms, institutional norms, the sorts of things that the that judge how earmarked last Friday, you know, calling the basically saying this is this is your do from having having been so ridiculous in your legal positions. Does that figure in the mix here or is that also sort of by the side and we're just doing as prosecutors might keep it simple, stupid focus on two or three chapters?

Barb McQuade [00:33:37] I agree with David that I think that this contempt of the judicial ​ ​ process of law is going to come home to roost. I am optimistic that eventually the law is going to catch up to President Trump. You know, he has vowed to fight all the subpoenas. That is not a sound legal strategy. That is you you would be sanctioned for that in court. And I think we're starting to see that come home to roost. The judges. I mean, without exception, a ruling against him. This idea that a president not only can't be indicted, but can't even be investigated. He's losing all of these battles. I think his strategy has long been. Just delay, delay, delay, and if he can slow walk these legal battles and appeal and get past the 2020 election, he will declare victory. But judges are moving quickly. We just saw an oral argument in the 2nd Circuit recently where his legal team made the absurd argument that he couldn't even be investigated for shooting someone on Fifth Avenue. The judge was incredulous in that. So I don't think these he's going to win in the courts ultimately. And so if the courts can't hold them accountable before November 2020, I agree with David that we're going to see a count and article of impeachment relating to that abusive process, abuse of the rule of law. And ultimately, he will be held accountable in one way or another.

Harry Litman [00:34:58] All right. Yeah. I mean, there you know the rule, though, the law ​ ​ grinds slowly. but it grinds fine. You have the sense that these judges have had to wait, wait, wait. But now they're here. OK. And well, now, Malcolm, from I mean, this is sort of each of our kind of parochial concerns, I think. And Barb and other lawyers and members of the Department of Justice have been incredibly a stunned and be appalled at his treatment of both the courts and the line, of course, of the the people of the the the the, you know, that we worked with for years who we know to have integrity of whatever party. You know, so much about the kind of national security aspects of that have been, I think you've made clear, kind of disastrous in his presidency. So let me I want to give you a chance to talk a little bit about your book, because it get you know, it lays out a kind of concerted and successful partially anyway campaign by Russia to get its hooks into Trump and the damage to national security interests that that has occasioned. So, you know that and the Ukraine affair. How do they, if at all, figure in to the case that the House should make for impeachment?

Malcolm Nance [00:36:21] Well, I take a pretty unified approach in the plot to betray ​ ​ America. If you know my other two books, the plot to Hack America was it was written before the election and it was a predictive analysis of everything that we would come to learn in the Mueller report. Plot to Destroy Democracy was about Putin's plan to fundamentally break our democracy by empowering conservative movements around the world, including the one in the United States.

[00:36:47] But this book is different. It's about Team Trump and how the Russians clearly ​ saw that their money and their culture and they're to be honest, in some circumstances, their women were easy marks, that American conservatives were very easy marks and saw why conservatives, you know, interesting fact. The KGB in the 60s, 70s and 80s, some of their most successful flips, people that they had actually turned were all conservatives and loyalists. Aldrich Ames, you know, you know, other CIA officers, because those people were not ideologically aligned with you left this, they would say in the KGB manuals were untrustworthy because they knew you. And if they turned, they would damage you horribly. So conservatives were only interested in money. So it was a KGB strategy to go after conservatives and as they as they put in. In one statement who were self-centered, narcissistic. And we're only concerned about money because you could do anything like that. That is literally a quote from the KGB man manual on human intelligence. And so what I do is I go back to how started as a baby human intelligence officer and learned to manipulate people. And then, of course, the entire story starts with Russia. If you're listening, please release the 20000 thousand Hillary Clinton e-mails. All of this shows and everything that's happened ever since that team Trump, every one of his followers, every one of his major supporters, including Rudy Giuliani, they are all part and parcel to Donald Trump's strategy to transform America into a completely different animal in which their crew, their team could do anything they wanted. They were masters of the universe. I think that's why Giuliani has this attitude of you can't touch me because he believes he and Donald Trump control the levers of power and they know how to operate them better than anybody. And you will never get me, which as far as I'm concerned, I. Only one question I have for Giuliani. Does he go to Rikers? Or does he go to the jail? That, you know, that the guy, you know, hung himself in the federal the embassy?

Harry Litman [00:39:27] The MCC,. ​ ​

Malcolm Nance [00:39:28] OK. He knows Rikers. So all of these these people actually ​ ​ have an entire chapter called the Republican. It's about the schmoo, the animal from Little Abner, which was, if you looked at it, it turned into whatever food you desire the most. Right. And that the Republicans have transformed themselves into schmooze. And whatever Donald Trump desires, they transform into it. But for the most part, Team Trump has compromised almost every aspect of our national security. And they are embracing our enemies to do it because they see a giant pool of money as higher a source of loyalty. Then the constitution. The Constitution, they think, is malleable, their plaything. They can manipulate it as they want and laws and rules don't apply to them.

Harry Litman [00:40:20] All right. I want to close out our discussion, but with an interesting ​ ​ turn about asking everyone on the panel how they actually would advise the White House now to play what seems to be a pretty bad hand. But I have one quick thought. So think about that panelist.

Harry Litman [00:40:37] But just a quick follow up for David. What is the deal with Russia ​ ​ and ? And strike could very easily imagine a Trump figure, maybe a George Wallace or whatever, who would have all these domestic impulses, but they wouldn't be connected to really seeming to want to bring us closer to these, you know, aren't are natural enemies and adversaries. What is it in Trump's psyche, politics or whatever? Because I don't think it's his base that wants to, you know, embrace Putin, that that makes him so want to, you know, kiss up to the worst people in the world right now.

David Frum [00:41:23] From a political point of view, it would work just as well if he'd done ​ ​ it right the other way. And that is hard to see. I think there is a confluence of things for us. As Malcolm said, there was a background predisposition to Russia in certain parts of the American right because of the flow of money, that there is just untraceable money. And the National Rifle Association became an important conduit. I think Donald Trump also at the expense of going to Russia and thinking, this is how I would like to live. I would like to be rich. The way the Russian elite are rich and I would like to have the legal impunity that Russian the rich have, because in the United States, who's out? You know, as Martha Stewart, many others can attest, money can buy a lot. But there are things money cannot buy. Whereas in Russia, there is nothing that money cannot buy. And that is attractive to someone like Donald Trump. The North Korean thing does seem kind of like a random walk. And I think the Iranians have managed their personal diplomacy better. They might well have been the recipient of this if they had flattered him more and manipulated him more. I think Donald Trump also said there wasn't a good solution to the North Korea problem. And so proclaiming any solution you could get as a success that appealed to a lot of his branding instinct, which is, you know, you you take a pretty dismal box of steaks and label them as the best steaks ever. But it has. But it has been I think the Russia thing is, as Malcolm said, it's about money, money, money first and the prospect of money. I know that there's some big sexual secret. I think that those stories seem crazy. I think Donald Trump doesn't have any sense of shame there. He doesn't have a marriage he wants to protect. He does. None of those things that might influence some other person would matter to him at all. He could just laugh the whole thing off as funny. And I'm sure that would not be a political problem for him. But money in the past, the prospect of money in in the future, I think is a big part of it. But it does put this it's also point of vulnerability because it puts him at variance with his party. Mostly Republicans in the Senate would like a more friendly policy toward Ukraine and a more hostile policy toward Russia. They are ill. At ease with the North Korea policy is even if we do have to, in the end, suck it up and accept North Korea as a nuclear state. We don't have to like it. And he's made them like it in a way that they're probably pretty uncomfortable with.

Harry Litman [00:43:43] OK. Thanks. I think a puzzle for historians, you know, at this point ​ ​ also. All right. So Barb, then Malcolm, then David, you're that you're the debuting to run the impeachment effort. God knows why. For the White House. So you know what? What's your sort of two minute pitch for how this should go? What's their best way to play the hand they've been dealt?

Barb McQuade [00:44:11] You know, as a former investigator, the best way to satisfy ​ ​ investigators that an investigation is not necessary is to show that you can police yourself. And so I think if the Trump administration can show that it is going to be forthcoming, it's going to be transparent. That could be a way to get congressional investigators to back down.

Barb McQuade [00:44:29] You begin by firing William Barr and appointing a an attorney ​ ​ general that has public trust, someone who's neutral and perhaps even a Democrat, someone who is aligned with the other party and say, we are going to open the window shades and we're going to investigate. We're going to prove to you that there was nothing untoward about what was going on in Ukraine. This was a hot political horse trading for the benefit of the United States, not President Trump himself. We will comply with all subpoenas, but they're not necessary because we're going to show our hand and be above and everything we do.

Harry Litman [00:44:59] Great advice. You're not hired, right? Well, yeah, they're just ​ ​ having to like actually we're actually asked. But. Yes.

Harry Litman [00:45:09] Malcolm? ​ ​

Malcolm Nance [00:45:11] Well, my advice is very simple. And I mean, first off, this ​ ​ should have happened a couple of years ago. I would just come to the president and I would make sure that it's recorded. And I would say it's time to surrender. You just. The gig is up. They know what you've done. They have the goods. There is no fighting this. The more rear guard actions you do, the deeper you're going to go.

Malcolm Nance [00:45:40] Just come out and confess everything and throw it upon the ​ ​ mercy of the nation. I mean, I wouldn't I wouldn't give him any advice. That would certainly violate the Constitution. And I think doing these, you know, Barb, no offense, but going in, you know, changing the attorney general and owning up to it and trying to reframe it. That's what they want. I think that's what Putin would advise him to do. You know, change the framework of the narrative to make a longer delay. And, you know, anyone with the slightest sense of honor and if you know me, I've got a really deep sense of honor. And anyone who's still in that White House who isn't going to their boss and say, screw you, you're all dirty. I'm not going to be part of this. That's the only advice here. Anyone that is not doing that in that White House is equally as guilty. And, you know, I'm sure he'll say I'm sure at the end of that great advice.

Harry Litman [00:46:44] You're not hired. ​ ​

Malcolm Nance [00:46:45] I know. I know. He'd be like, what's your name? ​ ​

David Frum [00:46:51] So while endorsing both of what you have said, and especially ​ ​ Malcolm is said about what you know, what I personally, David Frum, would do if I got a call to go visit the president. Let me approach is in a slightly different spirit and that is in the same spirit with which I would play sometimes the German side when I played my son Axis and the Allies and summer evenings on the board game. So without endorsing the cause, I guess you'd say it's a series of counters on the board and let's take it in a value free way and move the great pieces around against the blue ones. There was a saying during Watergate, the cover up is worse than the crime, and the reply to that is it depends what the crime is. If grandma is dead upstairs, then cover up is really your only way to go.

David Frum [00:47:32] So if we're just playing this as a board game moral content that ​ ​ that trumps got this problem, then he's really guilty. And unlike , whose best defense during Watergate was, yes, I'm guilty. But frankly, most of the presidents since the Cold War have done things that are not quite as bad as this, but they're similar. I am not the first president to have summoned to ask for IRS tax returns. Franklin Delano Roosevelt did that. I am not the first president to wiretap his political opponents. Lyndon Johnson and Franklin Delano Roosevelt did that. I did more. I went further. I didn't use established organizations. I had my own plumbers because the FBI would not help me. So it's worse, but it's not qualitatively different. In Trump's case. We're dealing with offenses that have never been seen before in the history of the United States. So and he is guilty of all and there's no factual dispute. He did extort Ukraine using American aid to try to influence an election. So there is no safety and more sunlight will cast a harsher light. He will only look worse and surrendering. Congress will not cut him a deal. I mean that people used to make a joke. You can keep the plane if you resign now. But at this point, I don't think that's going to happen. So his strategy has to be to play for time, slow the House down, slow the Senate down and see if you can push this to the point where it's now June or July of 2020 before and the Senate has not voted yet. At which point you can argue, for goodness sakes, let's adjourn this to November. You know that we're only now four months. Why are we going through these proceedings? If you want to beat me at the ballot box? Beat me at the ballot box. But try to just try to push it. He only needs to do that for about six months to be able to make the argument. This is for the people to decide. So that's that's the survivable strategy. When you're the key to that is Mitch McConnell. The key to that is that, no, you have to play for time at every moment. So the key to that is each phase. So at the House Judiciary Committee at on the House floor, then Mitch McConnell. But you need to. Yeah. You don't want to speak through the House. It speaks through the house. It's at the Senate in January. You want to slow it down in the House? If you can. And then make so to get it into the new not until the new year that it reaches the Senate and then have various kinds of procedural delays in the Senate. So the Senate doesn't even begin hearings until the spring. And then it's June, July. Then you can say, well, there's an election coming. Let's not do this now.

Harry Litman [00:49:56] I mean, I actually think I was. This was jocularly because I think ​ ​ because because Trump's instincts have never surrender, always redouble and assail your critics. It's just so strong. But I actually think that if you're just thinking value free strategy, the notion of showing you're you know, you have to be thinking about 2020 and trying to cast it as a referendum. The notion of showing you're really going to run things differently. The notion of doing some kind of genuine apology. The notion of trying to let out some of the pressure. Now, all should. It seems to me, would be aspects of a sound policy. I mean, they really do have to do something. And one of the interesting, interesting, challenging issues is nobody seems to be in charge there.

Harry Litman [00:50:38] It looks as if the head of the war room, which doesn't exist. ​ ​ There's no war room is Donald Trump. And now. That wouldn't be the worst case to have the president in any situation when it's Donald Trump. You know, it's it's it's all the more worrisome just for them again, tactically.

Harry Litman [00:50:56] OK, it's it's time for our final Talking Feds segment, five words or ​ ​ fewer, where, as you know, we take a question from a listener and each of the feds has to answer in five words or fewer. Our question today comes from Jessica Trost, who asked if the Senate does not vote to remove the president from office. Foregone conclusion there's an indictment, no removal. Are there any direct consequences? And let me just embellish. I think you mean sort of political historical consequences from the impeachment for by the House. So five words or fewer?

[00:51:37] Well, if we want to go second. Don't tell me. Yeah. Has anyone ready? ​

David Frum [00:51:42] Can we hear the question again? ​ ​

Harry Litman [00:51:43] OK. Assume that there's an impeachment, but no removal. Does ​ ​ the whole thing. The whole opera saga matter. Are there real consequences politically, morally, historically for the country? From there having been an impeachment, but no removal now?

Harry Litman [00:52:06] I'll keep embellishing. There's a thought. I mean, I don't think ​ ​ President Clinton was happy about this and it will be in his the first paragraph of his obituary. Nevertheless, there is a thought that not only was the impeachment of Clinton not an effective move, it was actually counterproductive.

[00:52:24] He ended up more popular, etc.. It's as if not much happened. There's a thought ​ that you know, but you know, I think the impeachment of Johnson surely did matter. And the. And of course, the Nixon effort did. What? What's it mean for the country in history if there's an impeachment but no removal? Oh, you're five words are ready. Go. All right.

Malcolm Nance [00:52:45] You know, I never leave you happy, smiling. So you will not ​ ​ like this. Within the context that you just put it. My five words are: America may see civil war.

Harry Litman [00:53:02] WOW. You should go last. ​ ​

Malcolm Nance [00:53:03] Yeah. No. ​ ​

Harry Litman [00:53:05] WOW, OK, Barb. ​ ​

Barb McQuade [00:53:09] The beast will be unleashed. ​ ​

Malcolm Nance [00:53:13] I just said that. ​ ​

David Frum [00:53:20] Division disgrace defeat,. ​ ​

[00:53:25] And I think you mean that as a. Because I'm also trending in that direction. ​

David Frum [00:53:30] It'll split his party up. He will be disgraced and he will be defeated. ​ ​

David Frum [00:53:36] And just use the Clinton analogy. Why didn't Al Gore win election ​ ​ in 2000? Really should have. Conditions were strong in the country. People really did want a third Clinton term in the Bush. I will serve in the Bush administration. And consciously or not, we were we were working before 9/11 on the assumption what American wanted was more Clinton. But with his act cleaned up, more Clinton like the more of the more conservative side of Clinton. And Bush was governed very much as Clinton's heir and probably more than Al Gore would have done. But Clinton ended up the impeachment process switched Clinton's party, and that's one of the reasons that Gore was in trouble. He chose Joseph Lieberman, the most stringent Clinton Clinton critic on the Democratic side, as his running mate, alienating pro Clinton.

David Frum [00:54:23] And that that weakened Gore and that's why Bush was able to to ​ ​ tip him in an election where the incumbent party should have easily won.

Harry Litman [00:54:31] All right. And I'll say, yes, permanent moral historical rebuke. ​ ​

Harry Litman [00:54:40] All right. Thank you very much to Malcolm David and Barb. ​ ​

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