Transcripts For CSPAN3 Hearing Examines Lessons Learned From Concurrent Congressional And... 20170711

Who have been down this road many times. Criminal investigations are designed to find out if a crime was committed and hold somebody responsible. Congress has a broader mandate, were not prosecutors, but our goal is to shed light on information that may be highly significant but not necessarily criminal. Adjust policy as needed, change laws when appropriate. But in a particular circumstance, find out what happened, not as a prosecutor but as a policymaker. Mr. Rosenburg said in the absence of a constitutional privilege or selfimposed statutory restriction upon its authority, congress and its committees have a virtual pliniary power needed to discharge legislative functions. I think its true but its bounded by the respect for the criminal process. So were trying to find out where that boundary exists, how to navigate this problem, and proceed in an orderly manner so we do not get in the way of mr. Muller, but we discharge our duties to the public at large. After i cut my phone off, ill swear in the witnesses. Would you please rise. Raise your right hand, please. Do each of you swear the testimony you give before this committee is the truth, the whole truth and nothing but the truth, so help you god . Thank you. As i indicated we have an Incredible Group of people who will be helpful to this committee as to how we move forward. From 95 to 96 mr. Ben vanista was on the whitewater committee. From 73 to 75 he held the position of the chief of the Watergate Task force. From 2003 to 2004, he served as one of the ten commissioners on the bipartisan 9 11 commission. Welcome and thank you for coming. Ms. Danielle bryant issued a report entitled necessary and proper, best practices for congressional investigations and thats what were trying to find out what are the best practices. Mr. Andrew frye, represented the government at the iran contra conviction of admiral poindexter and colonel north. Mr. Keeper was chief counsel to the house Iran Contra Committee in 1987. 1984 to 1995 he was the general counsel to u. S. House of representatives. He was assistant Legal Counsel at the United States senate from 1979 to 1984. Each of you in your own way have a tremendous insight into how congress should behave when theres a conflict between the congressional investigation and a potential crime. And just as hes known for perfect timing, senator whitehouse will give his Opening Statement. Thank you, chairman. I like the haircut. You must have ran all the way from rhode island. So first of all, thank you for doing this. I appreciate it very much. We learned today that donald trump jr. Knowingly sought information from the russian government to help his Fathers Campaign and that the repeat denials were false. And i have no doubt special counselor muller will get to the bottom of any violations of criminal law. Congress has a duty to know who knew with what, when, regarding the russian governments campaign to help get president elected. We will help the public understand what happened, to frame responses to the threats of continued russian influence, and in todays case, to insure the parallel investigations do not conflict. These questions are deadly serious as they implement the president s fitsness to perform the duties of his office. Let me thank chairman graham for continuing to persist in holding substantive hearings in our subcommittee. I hope the full committee gets energized. But in the meantime this subcommittee is doing its job. The investigative function of Senate Committees is vital. Woodrow wilson once said the investigative function of congress is to be preferred even to its legislative function. The Supreme Court has held the scope of our power of inquiry is its penetrating to enact and appropriate under the constitution. From senator trumans investigation of defense contractors to the Army Mccarthy hearings, the watergates hearings, our function has always been important, even if sometimes imperfect. Senator graham and i have been prosecutors. As has senator clobeshar. Congressional investigations in the legislative branch, to proceeds in parallel without harm to either. We are pleased to have experts in this area to help shed the light of their study and experience. One particular issue is the still undisclosed tax returns of donald trump. And the separate means for criminal investigations and congressional investigations to gain access to such materials. There are different rules and procedures for the executive and legislative branches. But the bottom line is this, while it would be wrong for Senate Investigations to peer over the shoulders of executive investigations and look into the contents of their files, there is nothing wrong with both investigations looking at the same evidence, acquired separately and consistent with law. One last point before we turn to the witnesses, the assertion and legislative hearings of executive privilege. Attorney general sessions refused to answer senators questions based on what we called Longstanding Department of defense practice, protecting the right of the president to assert executive privilege if he chooses, end quote. He said that the basis for this historical practice is laid out in two 1982 memos. Well, ive read those memos. One focuses on Congress Broad power of inquiry to expose corruption in the executive branch. It emphasizes the limits on executive privilege. The second memo allows to hold off on inquiries whether the president decides executive privilege. The magic word in this is obeyiance. The diction definition is temporary in suspension. Ultimately, the president must assert executive privilege or the attorney general must answer. And in my view, that clock has run. The witness who appears before the senate owes the senate honest and accurate responses to questions. This is a principle worth defending. The proper functioning of our constitutional democracy demands that congress get straight answers and senator graham and i intend to get straight answers. Thank you, chairman. Thanks. Ser grassley has just arrived. I would appreciate if i could ask questions after the panel has spoken. Absolutely. The floor is yours. [ inaudible ] chairman graham and Ranking Member whitehouse, im pleased to accept your invitation to appear before this subcommittee to discuss my personal views on the overlapping but largely distinguishable responsibilities between congressional oversight hearings and the work of federal prosecutors. I have been fortunate over the course of my legal career to have served as a federal prosecutor in the Southern District of new york and assistant special prosecutor in the office of the Watergate Special prosecution force. Chief minority counsel, chaired by both senator Lawton Chiles and senator arln speenspecter we was a republican of pennsylvania and as a defense lawyer in a criminal case brought by a special prosecutor and as a meer of the bartisan 9 11 commission. Congressional investigations have long been a shining example of democracy in action. Informing the public and providing factbased grounds for critical legislation. Investigations of organized crime, union busting, union corruption, wall street banking practices, the ku klux klan are but a few areas in which important societal changes have resulted from congressional inquiries. As such, i have great appreciation for the invaluable benefit to our society of congressional inquiries that have allowed disinfecting sunlight into dark corners that otherwise might remain hidden from view. And, of course, it is in regard to congresss oversight responsibilities that there is sometimes a bit of bumping and even bruising with prosecutors function of bringing lawbreakers to justice while insuring the due process of law is observed and the rights of individuals are respected. Sometimes in high profile investigations, the prosecution has been too focused on protecting proscuatoryal options to appreciate the larger issues of the publics right to know. Its little remembered that Watergate Special prosecutor ar ar archibald cox, from granting immunity to john dean. This was not archie coxs finest hour. The senate went forward with immunity and deans resulting testimony provided congress and the public with critical information it needed to know about misconduct of extraordinary scope at the highest reaches of government that might otherwise have taken an unacceptable amount of time to expose. As it happened dean gave testimony that was irrefutably corroborated by president ial tape recordings. And the evidence uncovered by the Senate Watergate committee proved essential Building Blocks to our work in the special Prosecutors Office in completing the investigation and bringing indictments and trial. Despite significant changes in law and procedures since watergate, the lesson remains that sometimes waterga watergate, the lesson remains that sometimes exposing serious public corruption particularly when wrongdoers are still operational will trump providering prosecutors all the flexibility they desire. In short there are no compelling reasons why congressional investigations should not proceed concurrently. The system works best when Congressional Committees are in internal sync. Where the chair and Ranking Member are speaking with one voice, and planning and executing an investigative strategy that will be both appropriately aggressive, and at the same time thoughtfully define engs to legitimate prosecutorial objectives. In my view, the best example of bipartisan cooperation was seen in the relationship between tom kaine and lee hamilton as vice chair. Deron straighting how much investigative energy and firepower can be harnessed when humans put the National Interest above narrow party goals. In conclusion, unlike congresss goal of educating and informing the public, prosecutors are bound by rules that promote secrecy, and discourag even criminalize inappropriate extra judicial disclosure of their work process. Imbued with tremendous power, prosecutors must have the experience and judgment to separate the wheat from the chaff, and exercise discretion in deciding to bring or not bring charges. In the investigation of the ramifications of russian state interference in americas 2016 president ial election, congress has the responsibility to collect and present by way of public hearings, why this event deserves every americans serious attention. And the Judiciary Committees of both houses have an additional obligation in my view. That special Counsel Robert Mueller be permitted to complete the work he has been dually appointed to oversee. Including a fair and thorough investigation of russias interference in our president ial election. And whether any u. S. Citizen was complicit in or aided and abetted that interference. It must be made clear that serious constitutional remedies would follow any improper attempt to curtail or interfere with special counsel muellers inquiry. Thank you and i thank the members of this subcommittee for your attention. Chairman grassley, chairman graham, Ranking Member white house, thank you for inviting me to testify today. Pogos mission has long included to strengthen the capacity of congress to do oversight. Pogos Congressional Oversight Committee has educated hill staffers from both sides of the ill and chambers the oversight powers and responsibilities of the congress and thank you, senator grassley for being the honorary cohost of that work. Let me be clear, congress and the executive branch are capable of conducting concurrent investigations. The oversight functions of congress are constitutionally mandated and are essential to legislating, holding the executive branch accountable, and for insuring that our democracy system of checks and balances is working. Clearly, the controversy and debate over russian interference with the 2016 president ial election demand congressional attention. The lack of common understanding across the country on the facts, what did or did not happen, and whether our rule of law is being properly followed is fueling a damaging rift to our democracy. It is the role of the congress to provide the public with the facts. As chairman graham mentioned, we recently released a report on the history of congressional investigations, that shows the Public Benefits when both the legislative and executive branches examine the same events. And we identified four important elements to successful investigations. That they be bipartisan, that they have a clear scope, that they be have Leadership Support in having the chairman of the full committee here as evidence of that and fourth is being wellresourced, which is something we can talk about in the q a later. Investigations led by a special counsel can play a critical role, but they are limited in scope, are not public and of course remain vulnerable to executive branch pressure. Congressional investigations have a broader mandate, often have a quicker pace and can unearth troubling information that may be significant, but not necessarily criminal in nature. Congress is also uniquely positioned to consider legislative solutions to address systemic problems. Congress at committees investigated the watergate iran contra, 1996 Campaign Finance and jack aamoff lobbying andals, all concurrent with criminal investigations. All of those investigations led to needed reform the that wouldnt have occurred if the inquiries had been limited to criminal Law Enforcement. The watergate committees work let to the passage of improved Campaign Finance law and other landmark reg legislation, including the strengthened freedom of information act, the ethics in Government Act in wake of the 1996 president ial leaks, the senates investigation into whether money from china made its way into the coffers of candidates and Political Parties preceded while the Justice Department successfully obtained convictions and guilty pleas from many of the same individuals under congressional scrutiny. The Senate Investigation into Jack Abramoff conducted its investigation concurrent with numerous criminal prosecutions, ultimately the Justice Department obtained 20 guilty pleas and convictions. The congressional investigation led to a number of new lobbying disclosure and ethics rules, as well as the creation of the office of congressional ethics. Its important to note that sometimes its more important to get to the bottom of a problem and find solutions than it is to hold one or two individuals accountable through criminal proceedings. In the Iran Contra Affairs two convictions were reversed because of grants of immunity by congress. But despite that outcome both former independent counsels Lawrence Walsh and ken starr concur that congress should not automatically defer to the criminal Justice System when pursuing its own inquiry. Congress must after consulting with the Justice Department determine for its itself what course is in the best interests of the nation. It should also be noted that in the end the Iran Contra Committees work led to new laws including the creation of a statutory c. I. A. Inspector general. Executive branch criminal investigations examine the past, congress can consider a broader set of issues, including solutions for the future. Without congress, significant Public Policy questions about the russians attempted interference in the 2016 elections will remain unanced. Is the Foreign Agent registration act working . Do we need to increase protections for the integrity of our elections . Have there been nonkiloliter abuses of power . And has the application of justice been politicized . None of these questions will be answered by criminal prosecutions. I encourage to you continue your work with vigor and confidence. Thank you for the opportunity to testify. Afternoon chairman graham, and distinguished members of the subcommittee. Thank you for the opportunity to offer my thoughts on the important topic thats the subject of todays hearing. Now i think i may be carrying coals to newcastle when i talk about the overarching issue here, which is whether the committee should defer or abandon in any way its investigation. Because i get the sense that everybody has agreed that the committee should not, for reasons that have been expressed over and over. By chairman and by speakers who have preceded me. The functions that the committee will perform are very different from the functions that the criminal investigation performs. As ms. Bryant said, the committees efforts are in part backwardlooking to gather the facts and to report to the American People whats happened, and to inform and guide their own actions, in terms of the deciding what legislation may be needed and what corrections in governmental action may be necessary. But the emphasis is forwardlooking. What can be done to safeguard the 2018 and 2020 elections from a recurrence of interference by russia or other foreign powers . And also to help our allies in europe from the same thing happening to them . Criminal investigations are very different, theyre essentially backwardlooking, theres no Public Interest in the accounting for events. If people are not indicted, it is the policy of the department of justice to say nothing about the circumstances surrounding their involvement. If any, in the events in question. Even successful prosecutions are likely, unlikely to produce a comprehensive overview of what has occurred. Theyre like pieces of of a jigsaw puzzle. You might get half of the pieces of the jigsaw puzzle, but you cant make out the picture with half the pieces. Whereas if the committee conducts its investigations, well be in a position to complaint a complete picture or nearly complete picture that will be much more meaningful. In contrast of the situation that existed under independent counsel statute, the department of justice regulations do not provide for any general report of findings by the special counsel. In fact the special counsel is very limited reporting function to the attorney general and its confidential, its not public. And the regulations also provide for very limited reporting by the attorney general to the congress. Now because of the divergence in goals and procedures, the important objectives of the congressional investigation cannot be served by the criminal investigation. And whereas theres a need for expedition, the congressional inquiry needs to proceed without delay. Now in iran contra, the events, the destruction of the find big admiral poindexter occurred in november of 1985. And the decision in the court of appeals in the poindexter case was in november of 1991, six years later. So it takes a while, we all know how long in the case of special counsel muellers investigation. But you cant count on a speedy resolution of the criminal investigation. At the same time it cannot be denied that the congressional inquiry can damage the prospects of a successful prosecution. Thats what happened in the iran contra cases. Because of the granting of immunity to admiral poindexter and colonel north. Now in part im told by people who are involved at that stage, that that was due to, there was a degree of overconfidence on the part of the congressional counsel. That nothing bad would happen from the grant of immunity, that was a mistake in prediction. And in an area thats very hard to predict. Because two judges can confound any prediction thats made. As a practical matter immunity is an issue that poses by far the greatest risk to the success of two parallel investigations. And im sure youll find that the crucial witnesses are unlikely to agree to testify in your hearing, without a grant of immunity. And youre going to have to work in close cooperation with the special counsel and im made some suggestions about mechanisms, that may work for reducing the risk of immunity grants, causing damage to the prosecution and we can talk about that during the question and answer period. The point i want to close with is that you may find in some instances that theres an irreconcilable conflict between the committees need for immunized testimony and a successful prosecution. And in those circumstances as ms. Bryant has said, the responsibility for balancing the interests of the criminal prosecution against the interests of full disclosure for legislative purposes is yours. Thank you very much. Thank you, senators. And my name is charles tefer, professor at the university of Baltimore Law School in 1987 i was on the house Iran Contra Committee of special deputy chief counsel. I was especially knowledgeable and experienced in the practice and procedure of congressional investigations, having advised for four years here, and 11 years in the other place. When mr. Frey talked about which counsel were overoptimistic about the way immunity would play out in the courts, im one of the people he was talking about. I was, hes right. The iran contra scandal, involved in short, the Reagan National Security Council staff, principally oliver north and admiral poindexter who conducted two offthebooks operations, resupplying the contras, contrary to law and the ultrathat beau activity of trading with iran, arms for hostages. Like the russian inyearries today, there were two types of inquiries going on, Congressional Committees like the ones here, and the special prosecutor then Lawrence Walsh, now mueller. Down there. It is sometimes asserted that theres certain problems and i want to deal with them, in congressional investigations, nonimmunity, other problems that make for trouble between investigation, congressional investigations and special counse counsels. I dont regard them as particularly serious in practice, when youre working at it. For example, yeah, potential defendants do get a kind of discovery by seeing the witnesses against them in public hearings. But that factor is tactical and minimal. It doesnt change outcomes. A witness is questioned by the special counsel and again by investigative committees, does create multiple statements and it could contain something inconsistent in them. Again, this is tactical, and minimal. To cut to the point of most interests, as mr. Frey laid out well, the problem is that witnesses in iran contra and probably in the russian thing, will take the fifth amendment and say they wont testify without immunity. Now immunity takes a vote of twothirds of a full committee. Twothirds of a full committee. So you dont have to worry that youre going to trip into it because one senator or one congressman is an enthusiast. You have to have twothirds of a full committee. Its going to be thought through. We planned what we did back in iran contra, working in consultation with the independent counsel, as i have every expectation you would work in consultation with robert mueller. Lets take out of the 26 witnesses who were immunized in iran contra, the 24 who arent oliver north and john poix poindexter. The 24 whose testimony we needed and got by immunity. In large measure witnesses who, who are not prosecution targets, not likely to face prosecution, take the fifth because they just dont want for personal reasons to testify. They were loyal back then to the people in the National Security side of the reagan administration. Who had done iran contra, and theyll be loyal this time, to take for example people on the campaign staff. The 2016 campaign staff. Of candidate trump. Theyre still going to be loyal to trump. Theyre still going to say i dont want to testify, the only way i can say this by saying im taking the fifth, ill take the fifth. So there is a proper and safe course for congress. The easiest thing for the witnesses who are most likely, likely, most readily taking the fifth when they dont have an actual expectation of prosecution, is to wait until mueller himself immunizes them, as he will, as he must to get their information. And then in consultation with him follow up with your own immunization. Theres no prosecution to be jeopardized in these circumstances. I have suggested in my testimony that as for the next higher tier of witnesses, you work in consultation with the independent counsel, who says of those four, by the four im saying, im talking about people of the category of, roger stone, carter paige, the todays excitement in the news, Paul Manafort and michael cohn. For them, you work with the counsel, you say isnt there going to come some point where youre make one of them plead or is one not going to take the fifth . Im saying by the way, as for flynn, to immunize him would be the mistake we made with poindexter. In the Judiciary Committee you oversee the fbi, the you oversee the administration of law, you define whats criminal. Dont give your job and your turf away to intel. On that note no grassley. Before my time starts, i would like a point of personal privilege to respond to something senator white house said. Absolute. That was igard to whether or not were doingnough to investigate russia and mr. Comeys firing. So just to show that that accusation is not true, ive sent more than two dozen letters to get information from government agencies, and private individuals, ive even placed multiple holds on nominees on the senate floor, and even in this committee to get uncooperative agencies to respond. And weve received a fair amount of information, including classified documents. And briefings, unfortunately the agencies and private parties still have a lot more to do to respond 0 our inchoirries, well keep after them. We ouellet get the facts. So i Ranking Member feinstein and i are in the process of moving forward with witness interviews and our staffs are supposed to meet with the special counsels office again this week to deconflict our work. So were working diligently on this. We might not be responding to every news story or tweet as fast as some would like. But instead, were methodically moving forward. And i think everybody gets worked up because of everything thats shows up on television but i want to get to the facts and sometimes that requires a lot of hard work behind the scenes. That is not going on in front of cameras. Now id like to ask questions. If i might respond, mr. Chairman i just want to say that i applaud every bit of energy that you and the Ranking Member can put into this. I appreciate it very much. Thank you. So my first question would be for everybody, but you dont have to repeat from one person what another person says. Is, so for the whole panel or any and all is a witness excused for answering congress, because they may have evidence relative to another proceeding, whether criminal or otherwise . Im happy to answer first. No. Then if, does anybody disagree with that . Im with her. Okay. A followup. If a witness refuses to provide testimony to congress on the grounds that is relevant to a criminal proceeding, can the witness still be held in contempt of congress . And if so, would a court of law enforce that contempt citation anyway . That would not be an appropriate grounds to refuse to answer. Unless that individual were personally in jeopardy. Any disagreement on that . Go ahead. First, if the individual has been subpoenaed and they are refusing the subpoena, it would make sense that the courts would enforce a contempt of congress. Then another followup on the same subject, what about a witness who refuses to provide documents on the same grounds . Would the result be the same . Yes. It would be the same result, unless the act of producing the documents would itself jeopardize the person who is asking. Are we talking about a witness who invokes the selfincrimination privilege . Or just refuses to the provide the documents on the ground they were relevant to a criminal investigation . I think were talking just about thecuments. If the latter, thats no excuse. Theres no basis in the law for that. Then this will lead to my last question on this first question of two that i have. So for example, this committee has sought copies of director comeys memos from his friend professor richmond. Director comey testified that he provided copies to the professor and the professor declined to respond. Whether he retained those copies when our committee asked. In fact, in a highly unusual move, the professor directed all questions to the special counsel. So in one case, sinclair versus United States, 1929, congressional resolution had authorized quote the appointment of a special counsel to have charge of the matter, end of quote in that case the witness who refused to answer was held in contempt. Served jail time, paid fine. The Supreme Court upheld his conviction, noting that the existence of the special counsel did not quote divest the senate or the committee of power to further investigate end of quote. If the committee compelled mr. Richmond, professor richmond to provide any copies of the memo, in his possession or to testify about them, and about his communication with mr. Comey, he would be required answering notwithstanding any relevance to special counsel muellers investigation based upon what ive just said. Would that be a correct interpretation, the way the Supreme Court in 1929 interpreted congresss power . Sounds right to me. Senator, the congresss powering to conduct investigations is found in the constitution. And so the fact that there is criminal inquiry doesnt diminish the powers of the congress. No, chairman grassley, i know of no profess or student privilege. Nor do i think that the bare bones factual scenario you have laid out provides a defense to nonproduction. Since are you in frequent contact with mr. Mueller, and the special counsel staff, i think it behooves you in comity with that investigation to try to understand what the professor is talking about. And then make your decision based on the factual record that you establish. I would just say that i wouldnt accept the professors explanation, if the special counsel had a concern about the production to the committee that would be one thing. The professor freestanding concern seems to me not to carry very much weight. If the special counsel had a concern, you would want to have him explain it to you at least. It ought not be determinative, but its something you should listen to . And evaluate. Im over my five minutes so mr. Tiefer im going to submit a question to you for answer in writing, please. Thank you. Thank you very much. Under what circumstance, professor tiefer, under what circumstances might Congress Seek an immunity order from a court for witness testimony. What might be a reason for congress to decline to seek an immunity order . From the very beginning of the enactment of the immunity statute. It was always built in that objections had to be asked from the prosecutors, regular ones in the Justice Department or special counsel, they had to be asked, told, notified, were considering this and given consideration. I think the image that the writers of the immunity statute had in mind was that there might even be a hearing at which prosecutors could come and say this will make things hard for a prosecution, please dont immunize this witness. We may want to go after him. We may want to pressure him. We may want to try to get a plea from him. And so that was the way they pictured it at the beginning. So those are the kinds of arguments that a prosecutor could make, dont do it because of the effects it will have. And which would be weighed and considered by a Congressional Committee, which probably starts with a great deal of defierence to the prosecutor and says well we dont want to mess up your efforts. I may comment on that. I may be wrong about this, but i dont believe the court has the power to refuse the committees request for the immunity order simply because the attorney general opposes it. What the attorney general has a right to do, is ask for a 20day delay in the issuance of the immunity order. So that he can perfect the department can perfect its preservation of its evidence. And minimize the risk of taint from the immunity order. But, it cannot require the court not to issue the immunity order, if the committee or the congress duly asks for the immunity order, the court is required to give it, if the circumstances put forth in the statute are satisfied. And if i may add, chairman grassley, you may find in many such cases, that the objection, if there is one from the special counsel, is temporal in nature. And as the law provides, the opportunity for a certain amount of time prior to court action. It may be that the exigencies of the investigation are persuasive to the committee. So that you would agree that there would be some time limitation before would you act on an immunity grant. Senator grassley, historians have reviewed what happened in after iran contra and some of the thoughts have been Lessons Learned from that. Included that perhaps offers of witnesses being immunized witnesses giving testimony in the executive session, would have helped to preserve the prosecution. Or pushing the opportunity, specifically for colonel north to testify to give his testimony staff. That was an interesting fight where even though the committee believed it had authority to demand that he provide testimony to the staff, his aggressive attorneys, Defense Attorneys pushed back and rather than fighting for the rights of the congress for that testimony. They essentially backed off and gave up on it. And i know that you, senator, have such a great history in protecting the authority of congress, to receive information, your current work in fighting the recent office of Legal Counsel opinion saying that minority requests should not be granted. Is such an important one. In fact pogo began our work in helping to train congress on its authorities for oversight because about ten years ago i realized that there were members of congress who thought that foia exemptions actually restricted their access as well. So its so important for the congress not to just take no for an answer. But to make sure youre exerting your authority when its important and necessary for your work. Youve been kind to me, mr. Chairman, thank you very much. Very good. Thank you to chairman grassley for joining us. The question that i raised in my Opening Statement had to do with a Congressional Committee and a criminal investigation, both looking at the same piece of evidence. Lets just say tax returns. Just to seuss an example. If hypothetically a special counsel had through its own devices and authorities obtained a subjects tax returns, congress is not constrained in any way through its own authorities, to look at the same evidence that a special counsel is. Is that correct . Senator whitehouse there are two different ways to get tax returns. Your question becomes first one and then the other. The easiest way to get tax returns is to subpoena them from the person who kept their own copies when they turned them in and if a prosecutor could get them that way which is quick and easy for them, then so can you. The more difficult way is to get them through the internal authority, called section 3106. Of the tax codes privacy provision to get authorization to get them. Theres a different authorization mechanism for prosecutors, much easier. Do get them through the irs. Yes. Yes. For the Senate Committee what it takes is a resolution of the senate. Onechamber resolution. And there is nothing about a criminal investigator having a piece of evidence that limits congresss ability through its own devices to get that same piece of evidence . My point is, were not allowed to go knock on special counsel muellers door and say what have you got thats interesting . I can tell you if we find stuff on our own, the fact that hes also looking at it, oughtant to constrain us, we can look at a the same documents that a criminal investigator can. Very concrete about that in iran con tra, i got ollie norths tax records. I was the one who got the authority established that that the house Iran Contra Committee could get the tax returns. I didnt go, we didnt go to the committee, the committee didnt go to walsh and say give us your copy. We got it another way. That would be true of other bits of evidence as well. Lets just say that the notes that director comey took that have been provided to the special counsel if there were another copy of those, so we werent having to go and take tangible evidence out of the files of the special counsel, theres no reason we shouldnt have access to the same evidence evidence that a special counsel does, correct . Thats right, senator whitehouse, theres no reason for the senate not to be able to have access. The tax returns have specific and unique circumstance. But as youre talking about any other kind of evidence. Theres no restrictions. Special counsel that generated the evidence by for instance taking the deposition of a witness, thats a different thing. We would have to take our own depositions, we dont get to go into the special counsels office and say lets have a look at your depositions. I believe thats right. But the same witness we can get their testimony as well. Correct. Wisely after coordination, but theres no bar there. With respect to the work product of the special counsel, i believe youre entirely correct, senator. You might think about the example of evidence that is beyond the reach of congress, but available to a special counsel. And i would put in mind the example of the president ial tapes, that were subpoenaed by both special prosecutor cox and by i think eventually both houses of congress. The courts rejected the congressional subpoena. But they granted the grand jurys subpoena and later the trial subpoena issued by the, by the special Prosecutors Office and the upcoming watergate trial for obstruction of justice for the president s principal aides so there may be examples in the future where there is a dichotomy between the availability of certain types of evidence. The executive privilege claim as to correct. But this is a little different question. There is a question whether in obtaining the information from the prosecutor, you would be learning about the grand jury proceedings in some way. Learning about the prosecutors we have no way of obtaining information from the prosecutor. We dealt with that in watergate. Through the court. Court as the chief judge of the District Court in which the grand jury is sitting has authority to consider whether a congressional proceeding such as an impeachment proceeding has the ability to receive evidence that the prosecutor has generated, with the consent of the court. And that is exactly what happened in watergate. When at a particular point in time, the return of indictments, we provided the court, we the special Prosecutors Office, provided the court with important evidence, including president ial tape recordings. That were unavailable to that committee at that time. And the Court Granted our application based on the need and the constitutional process under which those materials would be provided. Chairman, my time has expired. Thank you very much. Thank you, mr. Chairman. Thank you all for being here today. I want to you imagine that youre a, a Senior Adviser to the president of the United States. Not necessarily this president , but any president of the United States. And you are involved in an issue at the white house. Which, the subject of which the attorney general decided to appoint a special counsel to investigate. And the fbi was investigating, too. If you were subpoenaed or asked to come forward before a Congressional Committee, is that, as a white house aide, would you come testify, mr. Frey . Im asking if whether you would come testify . Youre a Senior Adviser to the president. You were involved in an issue. You dont think you did anything wrong. But you were involved in an issue thats now being investigated by the fbi and the special counsel appointed by the attorney general of the United States and you were asked to come down to a Congressional Committee and tell us everything you know about the issue. Putting privilege aside, what would you do in. I dont know that i could put privilege aside. If there were no privilege there are two privileges that at first blush strike me as potentially relevant. If im the attorney for the president. One is the attorneyclient privilege and the other is executive privilege if neither of those were available, im not sure i could feel that i could refuse to appear. Heres what im getting to. I dont really want to go too far on the issue of privilege, im sure you could talk a very long time about that very eloquently. Why would anybody come testify a question not a suggestion. Why would anybody come testify before congress about the subject of a criminal investigation if they were involved in it . Well senator that depends. On the nature of involvement if theres there is marginal argument for criminal charges, based on that involvement, it might be prudent to assert a privilege. But youre talking about not asserting a privilege. If you dont assert a privilege, you have no basis as a citizen of this country to refuse. I understand that. Why wouldnt anybody assert a privilege . Why wouldnt everybody refuse to cooperate with the United States congress . Is that the question . If they thought they could go to jail, yes. With or without the threat of going to jail, one would hope that citizens of this country respect the congress of the United States, to the extent of responding to legitimate questions that they may be asked. Well im not suggesting that they should or shouldnt. Im trying to understand in the real world counsel. Youre telling me if you were senior counsel to the president of the United States and were you involved in a matter that the fbi was investigating let me finish my question. Im just trying to understand practically, why anybody would come testify before us. Well theres two pieces to that would i come . The answer is yes. It would be a matter of disrespect to the senate not to appear. When i got here, would i testify . Thats a different question. And the answer to that question is, circumstances may be circumstances in which executive privilege would apply. Thats what executive privilege is for, to protect certain Confidential Communications with the president. We also got the fifth amendment, too. Im assuming i havent been involved in anything thats remotely criminal. But i just, my question is how can you safely make that assumption. You dont know what the special counsel is doing. Look at whitewater it started with a loan and ended up with well other things. Nor, i think youre also talking about so many different hypothetical circumstances that its difficult to answer the question. If youre a senior counsel to the president , the sit doesnt have, as my understanding im one of the few nonlawyers in this room. The witness doesnt have the authority to exert executive privilege. But the president does. So if the senate is told by the president that you are not allowed to call this witness because he is my counsel, then its not, its not a voluntarily question by the witness. Youre asking why would someone voluntarily testify. I think the answer is as both mr. Frey and mr. Veniste have testified, they would voluntarily testify because of their respect for the institution. The senate has the opportunity if that witness refuses to voluntarily testify, to be subpoenaed. If they refuse a subpoena, th then i understand let me finish, mr. Frey. Im not trying to argue with you, if i could have another 30 seconds. I think i upset the counsel down here. I didnt mean to do that. But we live in the real world. Now youre an aide in the white house. Lets take it out of the white house. Youre an aide in lets say the department of labor. You advise the secretary. And the fbi is investigating an issue you were involved in. And its so serious that the attorney general has appointed special counsel. Now, if im that aide and i come to you, mr. Frey and say can i go down to the United States congress and just spill my guts and i would feel a whole lot better. I know what youre going to say. Youre going to say what planet did you just parachute in from. I didnt do anything wrong. And youre going to say, as a practical matter, well, yeah, maybe the fbi thinks differently. Thats all im saying. Is i agree with you that its good to have these two parallel paths. One looks forward and one looks back. As a practical matter, no disrespect to any of you, i dont believe any reasonable person would come testify before congress if they thought they were going to go to jail. Well that changes because of the patriotism. That changes the premise quite substantially, senator. You grant that if you put inject into the question that theres reasonable basis for the witness to think that i may be put up as a target of the investigation, yes of course, it would be prudent for them or her theres always a reasonable basis, counselor. You dont know whats happening with the fbi is looking at. Just to take your point of why would anybody come forward, during watergate, president nixon waived executive privilege and his aides did come forward. I understand youre proud of watergate what about whitewater . What about it . Do you think that was a prudent use of scare resources. I dont want to relitigate whitewater, but there was nothing that was determined at the end of whitewater that had to do with the initial basis for the appointment of special counsel. Special counsel hung around long enough so that president clinton handed him on a silver platter something that was far beyond anything to do with the whitewater initial investigation. But i dont mean to argue that with you. What i do wish to do is to be responsive. And if my tone was incredulous it started out from the way the question was posed. And then the question kind of migrated to a different supposition. We migrate all the time around here. Ive gone on too long. Let me just add, the reality is that many people who are pref peripherally involved. Were going to migrate now to senator blumenthal. Thank you, mr. Chairman. Each of you has a great deal of knowledge and experience in an area that i think is important to us, practically, as members of congress on these committees. When there are these parallel investigations. That is the granting of immunity. Which can be a potential obstacle to later criminal charges if immunity is granted for example by congress. You all are familiar with the law, which even though technically might not bar a prosecution as a practical matter, can make it almost impossible. So let me ask you, based on your experience and ill begin with mr. Frey and maybe go down the table. What would you recommend as the practical mechanics here . If were going to call a witness, on this committee or the Intelligence Committee, should we reach out to the special prosecutor . On that particular individual, would you recommend asking for a list that should, of people should not be granted immunity . Should we just adopt a blanket rule no immunity if someone is unwilling to testify, so be it . I realize that without knowing more, definitive circumstances, you may have difficulty prescribing a general rule. But in a sense, a general rule may be important to have, so that were not dealing with information that the special prosecutor may be reluctant to give us, and viceversa. I dont think you should assume that your investigation is subordinate to the special counsels investigation. So i wouldnt have a general rule that youre not going to grant immunity unless a special counsel authorizes you to do it. I definitely would have a rule that you wouldnt grant immunity without discussing it with the special counsel and hearing what he has to say. Or what suggestions he has. There are certain things that in some instances can be done, to minimize the risk of danger. For example, the special counsel may in some instances be getting guilty pleas from some people, who and then be granted immunity in other areas, where they might have exposure and be entitled to invoke the privilege. But as a practical matter, theyre not going to be prosecuted because theyre already going to immediate guilty in other areas. Or you might have somebody who is already a very strong case, lets say of violating the iran sanctions. And they could be prosecuted for that successfully. But theyre also involved in the Russian Election activities that youre investigating. Now you can confine your questions under immunity to the latter, subject that youre investigating and stay away from the area where the special counsel has a strong case that he can bring to get a conviction. Or he could get his conviction and hold off on sentencing until he sees what kind of cooperation hes going to get and youre going to get on the area that youre interested in. So there are devices like that, that can be employed cooperatively with the special counsel. As a practical matter. To get testimony or to be able to afford to give immunity to a witness. In an area where it wont be damaging to the special counsels prosecutorial efforts. Now if you look back at a case situation like iran contra, with people like north and poindexter, you couldnt do that. Nor, i think, is it practical really to take their testimony in closed session, which is one way to reduce the risk, supposed special counsel gives immunity to somebody testifying to the grand jury, which is secret. Now the whole world, including other witnesses who might be kaufed upon to testify at a trial against the immunized witness wont have access to the immunized testimony. And therefore, its unlikely or much less likely that the immunized testimony will taint the testimony of these other witnesses. And therefore, its practical that somebody who has given immunized testimony in the grand jury can still be prosecuted. Because of the secrecy. Now the same thing could be done in theory, in the congressional hearing. That is, you could take testimony in a closed session. Although the secrecy, assurances of secrecy in congress are certainly not as great as the assurances of secrecy in a grand jury. So, i dont think you could have done it with north and poindexter, anyway, because it wouldnt have accomplished the educational purpose that was part of what was important in iran contra. So what im saying is there are some devices that can be used to still use immunized testimony, and, and without destroying the prosecutorial potential. Senator, i would add that when you look through the history of important and successful congressional investigations, we, i think we only have that one example of a proper, when you go back even to teapot dome and watergate, the 1996 Campaign Finance investigations, the abramoff, none of those resulted in a prosecutor with the immunity of witnesses. And as mr. Frey was saying, theres some really thoughtful analysis thats been done on what could have been done differently with the iran contra circumstance. Part of the situation that was disappointing i understand about what happened with north and poindexter was that there testimony ended up being not all that valuable even though they got immunity. And the problem was that the staff hadnt had the opportunity to interview those witnesses to know what their testimony was going to be. I think thats an important Lesson Learned that the Congress Needs to, if you have a witness that you want to know what they would say, have the staff have the opportunity to take that testimony and then you can make the judgment. Because what mr. Frey said is really the most important point of the hearing. Which is your investigation is more important than the special prosecutors. You can make the decision, thoughtfully, in consultation with the special prosecutor, on whether it is worth your time to ask for that immunized testimony. I would have is a slightly different take. And rather than prioritize whose investigation is more important. I think you have both important responsibilities. To protect. And, and to go beyond in terms of asserting. And so where you have a circumstance where a witness refuses to be interviewed, makes no proffer in advance of a grant of immunity. Then you are essentially buying a pig in a poke as we used to say. And it would be normally very unwise to grant immunity under those circumstances. Unless you were more or less sure that there was a credible threat of a perjury prosecution, to follow false testimony. So each and every circumstance has different facts associatedw. I think the only thing you can take from that is what i understand you are in fact doing. Which is entirely appropriate. And that is, to meet with representatives of the special counsel. In order to not only deconflict, but also to go forward. And then this, as i mentioned in my opening remarks. It is important for the committee to speak with one voice. And to have its act together, essentially in terms of its strategy. And then approach the answers that you receive from special counsel, with a due amount of deference and also with some skepticism. Special counsel, like any prosecutor, doesnt want to give up anything. And there are reasons, many reasons why some sort of compromise may and perhaps should be in the cards, so that each group gets some measure of what it needs. I just want to be clear for the record that i wasnt saying which was more important of the two investigations. Well we dont have to reach a conclusion as to who is more important fortunately. But i i do think the important point youve made which is confirmed by experience, repeated experience is, that its important to know with definitiveness and as much certainty as possible, what the proffer is going to be. What the usefulness of the testimony is going to be. And how it can be confirmed in terms of truthfulness. Let me comment on that. I think i apologize, mr. Chairman for just very quickly. Very quickly. If youre dealing with an oliver north, youre going to get an proffer, hes not trying to make a plea bargain. Theres no way you would get a proffer from him. You would have to immunize him first to hear what he has to say and you wouldnt necessarily get the truth. Thank you, thank you all very much. Senator clobuchar will be next. Lets put this in perspective. If an individual is asked to appear before the congress, they have a fifth amendment privilege not to testify if they bieve their testimony could incriminate them in terms of a crime. Do you all agree with that . Yes. Okay. If we ask for documents that a witness may have, that could incriminate them in a crime, could they assert their Fourth Amendment privilege and quire a warrant . Not necessarily, not necessarily. Unless the act of producing those documents is itself incriminating, u. S. V. Hubble teaches us that they may assert a privilege against producing them. But theres a wide variety of documents that would be a fifth amendment, not a fourth. Could you argue the fifth amendment to the document itself . Yes. Thats very helpful. Fwook what senator kennedy is suggesting, if we bring somebody before the committee, ask them to come, like every other american citizen, they can refuse to testify because of the fifth amendment privilege we all have. And remedy for the congress is to give them immunity, is that correct . That is a remedy. That is a remedy. What other remedy would the be . The other remedy is to determine what the special counsel is going to do with that particular witness. And bide your time. Fair enough. Okay, so lets put this into the real world here. Is there a campaign privilege . No. So if youre working on a campaign, theres no privilege, even if you win the election, you dont get the privilege retroactively, do you all agree with that . Correct. Yes, senator. So if you call somebody from the Trump Campaign to testify what they did or didnt do regarding russians or anybody else, they assert a campaign privilege . No, sir. They could assert their fifth amendment rights. Yes, sir. Then wed have to collaborate with the special counsel as to whether or not whats in our best interest, would you agree with that . We believe that would be the prudent way of Going Forward . You all agree with that. So when it comes to documents like the memo, former director comey said that he made a memo right after he met with the president about the interaction they had, and weve asked for that memo. Can you think of a good reason why we havent be allowed to share that memo with the public because he disclosed the existence of the memo to the public in front of a congressional hearing . There is the department of justice does assert an executive privilege with regard to Law Enforcement materials that are generated so its possible that i dont think thats the question thats been resolved between the legislative and executive branch. There are portions of the memo mr. Fry is getting at that could retain a privileged character. They would have to assert that privilege . Yes. And i dont think that privilege could be used to withhold the information from you. Thats my question. Only from the public. So do you all agree with that or not . No. It could be used to withhold it from you. Heres the question. Thats a form of executive privilege. Comey talked about the memo he made after he talked with the president. We all want to know whats in that memo. Every intel, judiciary, weve all asked for that memo and the ran i wa reason i want the memo is to let the public look at it. Now youre saying mueller could deny us that memo if he thought it was essential evidence in a crim criminal case . That wouldnt what would it be . Mr. Comey, as i recall has testimony the memo was made go ahead. Said he constructed the memo in a way so that it would not be classified. Right. So i have my doubts whether theres anything in that memo that could ultimately be shielded from this committee. Thats different saying that informations classified versus you cant get it. Right. So a conversation between the president and comey is not classified information that he talkeded about might be classified. Could the president exert executive privilege over the memo . Has the memo been provided to the committee . No. Not the committee as a whole. I havent studied the question so i dont have an opinion so what were trying to do is find out were there boundaries and our boundaries intersect. I dont know about you, i would like to know whats in the memo, but i dont want to screw up the prosecution. Right. So i think the prudent way to proceed is to meet with special counsel mueller to find out whether he has specific objections to this committee receiving that memo whether you subpoenaed from the let me tell you what hes decided. Hes allowed the Ranking Member and the chairman to look at the memo in private that nobody else, and i find that objectionable. So i just want to put that on the record. Chairman, i would agree with you that it is objectionable. There is no privilege that i can think of that would allow him to withhold that information from the congress and you have the right to subpoena it from other people including the professor that famously received them. Okay. One other thing that maybe is not in your purview, but this is very interesting to this situation. You have different committees investigating the same matter. Heres the problem. Im aware of the fact that comey testified in the House Intel Committee and gave information to the Ranking Member and the chairman of the senate Intel Committee about the reason he got involved in the july jumping into the clinton email investigation that i have reason to believe that before those two committees he said that the main reason he took over Loretta Lynchs job was not because of the tarmac meeting between her and bill clinton, its because he had intel to the effect that the russians may have intercepted intercepted an email between the doj and dnc that would be devastating to the department of just my question is what kind of process would you suggest between the two committees for us to get that information . Well, i must say, chairman graham, that this is new information for me so im not in a position right now to give you fair enough. Id be happy to sit down and talk to you. Think about that one because i want to know what he said to other committees about whether or not the department of justice was compromised because thats in our jurisdiction. Right. So with that, ill turn it over to senator klobuchar. Thank you very much. Thank you to both of you for holding this very important hearing, and i had to leave for a little and ill piggyback on some of the things that senator graham was asking there at the end, and that is that this issue of weve heard many witnesses come before Senate Committees and refuse to discuss the nature of private conversations with the president. When the president has not invoked executive position executive privilege to cover those conversations. So my question is is there any legal basis for this position and what authorities does congress have to compel answers to questions and situations like this. Ill start with you, professor t. Since you work with my husband. I trust you. And thats a good reason, senator klobuchar. Im grateful. The strong tradition going back to 1961 and embodied in the Justice Department memos is a claim of executive privilege has to be made by the president himself and the explanation for that is often given as well, you have whatever, 2 Million People working for the federal government and they cant all be given executive privilege and no one has come up. So thats the short answer. People shouldnt be claiming it unless they can back it up and the authority we have to compel answers . Can be exercised unless and until a privilege like that is argued. That is you demand the witness appear and you ask to reserve testimony or documents and you get them. Does anyone else want to join in . The authority is if you have to you can go to the courts with the contempt of Congress Citation and prosecute that way if theyre not subjecting themselves to your demands. And if i can also add to the point the chairman was raising, because of the jurisdictional boundaries between the committees, those are selfimposed and those are things that you can collectively decide to have joint hearings in closed session. I know that senator mccain has talked about select committees as an alternative. That walked into where i was going. Oh, okay. Does anyone want to follow up on the first question . Anything more . I can only say that i observed the nonassertion of executive privilege as a way of not answering questions under executive privilege which is kind of bizarre. Thank you for pointing that out. Thats what we thought. One question. I wasnt clear. I wasnt clear under the Justice Department procedures, theres supposed to be an opportunity to ask the president whether he wants to exercise executive privege. I dont know whether that opportunity has happened is listed, but i agree that the president is probably the one who has to decide to exercise the privilege, and its supposed to be a process of negotiation over the request at least thats what the department and president reagans memo anticipated would happen before the president makes a decision whether he wants to invoke the privilege or not. But i think its understood by the department to be the president s decision whether to invoke the privilege. Right. So, thank you, and i know that the professor raises the issue of jurisdiction and ive been publicly frustrated with the fact and im glad that senator westerner and senator burr are trying to make as many hearings public as possible, but they have a focus and that focus is on intelligence and that focus is on that international focus, whereas thismittee has jurisdiction over the fbi and over civil rights and over the Justice Department and so many of these issues to me seems like they should be under the jurisdiction of this committee, and actually the full committee and the subcommittee has been incredible in trying to lead the way, but can you comment about that, the Judiciary Committees just based on your past experience with these cases and what youve seen the Judiciary Committee involved in and what you think matters here. You want to start there, mr. Well, as i said in my prepared remarks, i believe that Judiciary Committees of both houses of congress have a special responsibility when it comes to special counsel mueller. The head of the fbi, james comey was fired. E reasons are certainly murky, at best. The original reason provided by the white house was superseded in an interview by the president with the media, and then over the last few weeks theres been discussion about whether the president will fire special counsel mueller. I believe that the Judiciary Committees have some obligation, and i hope you undertake it to ensure that the principle that we are a nation of laws is followed in practice as well as in form, and that you discuss and ultimately publicly what consequences there would be to the improper removal of special counsel mueller from doing his job. Very good. That certainly would be not under the Intelligence Committee jurisdiction, so i can address a different aspect of what i understood your question to be. One of the issues here is whether the aivity of the russians requires new legislation to fill in the gaps that may exist if there are gaps in title 18 and i read section 1090 and it made my head spin trying to find out if it adequately covers the conduct that exists that occurred which im not sure i fully know what it was, and that clearly seems to be to be in the jurisdiction of your committee. So i think you clearly have a proper role to play in this now that obviously there should be coordination between you and the Intelligence Committee so that theres want a lot of duplication of effort so that you can share the results of your activities. Thank you, and i think that, yeah, we would obviously do that. Miss bryant, you brought us down this road. I think theres no doubt that your committee has tremendous importance in the vast array of issues that are potentially and its with the foreign registration act and Election Integrity and there are so many policy reforms that may be required that require this committees understanding of what exactly, if any weaknesses exist in existing laws and so i would encourage because i learned this morning i was glad to see in the wall street journal that the house Intelligence Committees intend to have one report together which is a great model if you cant reach consensus at least include the dissenting views. I would encourage you maybe to reach out to the committee and see if theres some kind of way of having collaboration as well with your work, but one of the things that i see is making it more difficult for you is the Staffing Resources that the committee currently has. I think in the report that we released about best practices for investigations and one of the four essential features is to be adequately resourced and this is just so you know im the ranking on the rules committee and weve received requests from other committees to bulk up their work in this area, and we havent gotten one from judiciary outside of the Supreme Court. So that could happen, and i would also note the rules committee has jurisdiction over elections and overstate elections and there has been hacking there. Weve also not had a hearing on the rules committee and so what im concerneded about here is everything, the responses to this, and not just the firing and all those things, but the responses to protect our elections are really not in the Intelligence Committee. Right. The election infrastructure and all of those things and were missing that whole part of the discussion because were just going down one road into this intelligence investigation when we should be talking about a lot of other things and we have not had those hearings despite some repeated requests, and i really think that we need to move in this area to do our jobs appropriately, our duties. If i could add then, so that is one of the reasons that i think senator mccains request for a select committee might be appropriate so it could capture all of those variety of issues which would include obviously the members of the committees that are active, but to give a comparison and the staffing, and the irancontra committee had 181 staff. The Church Committee had 133 staff and the Benghazi Committee had 146 staff. So this is not to say that the current staff arent fabulous, but theyre human beings. Well, thats arguable. And youre looking at them behind us. So let me just sort of tell you what weve done. Weve tried to find out what the tools are in the tool box of russia abroad and how they interfere with elections over there, how these tools have been applied here to come up with solutions to the 20182020 problem. So weve done that. Weve had very good hearings. As to staff, quite frankly, if i feel like we need more well ask for more. Heres my frustration. I cant imagine a major witness that congress would want that mueller wouldnt want. Don junior, we saw the email today. I think everybody in Congress Wants him to explain what was that all about . I dont know if mueller wants to find out what that was all about, but i would imagine he would be interested. You all have done this before very quickly. What would you advise us to do with people like kushner and don junior and manafort . Well, they are what i would call pretty close to the top of the food chain. Right. Ordinarily in building an investigation and generating facts, you work your way up unless there is an opportunity to jump over middle management and get to the c suite quickly. I suggest tt again, the committee, and im not so sure that its a great idea to discuss it in public to meet with mueller . Certainly meet with mueller, but the committee itself needs to get its marching orders in order, and to find the agreement. The worst thing that can happen is there are different voices coming from the same committee and youre not marching in unison. Its difficult enough, as we have heard and have little practical advice for when there are internicing struggles for turf within the congress. Right. And so on the question of investigative priorities, i think you need to sit down, get your act together and then to meet with mueller and to determine what areas of collaboration and cooperation you can hammer out. Youve already had one meeting. I think the chairman has had another and there are a series of meetings, but i think pretty much everybody agrees that wed like to know about the email. So good case of if we call him and what damage does it do. So miss bryant . You will not find out until you ask that question and get an answer. Right. But i would suggest most respectfully that you not emulate kiddie soccer where everybody is rushing at the ball, and all of the rules are put aside and all of the discipline is put aside. I couldnt agree with you more. We could methodically go through this as to what would happen if mueller was fired for no cause, it would be disastrous and i have no reason to believe thats going to happen, but i along with many others say thats a nonstarter. You dont need to worry about that, there would be plenty of blowback. Ay i sugge, senator graham, when you go to a meeting, you have two tools. A list of names of people you want and a calendar and in effect, your consultation is a negotiation with the special counsel and he says, number one, number two on the list, you could have them tomorrow. The whole purpose of that question is not to ask how we move forward organizationally, but to suggest that we can move forward. Thats the point. That even though both groups may want to hear from the same witness which i imagine we will with major people, youre telling us as a committee, we have the right to do that, we just have to exercise it reasonably and logically. Exactly. Does everyone agree with that concept . Everyone agrees. Do you agree with that, mr. Fry . I think so. So if mr. Mueller tells us we can consult, we can listen, but we have our own powers is what youre telling us and we need to exercise those responsibly, and especially when mr. Mueller is focusing on criminality and you have broader set of questions. I think this conflict is going to mature and i can understand from his point of view why it would, but just from my point of view being subcommittee chairman, i think your advice is good that we need to decide among ourselves where are we going . Im going to find out what the russians did and make sure they dont do it again. Remember the thats the goal of this whole deal. Remember the documents are a very important part of what youre looking for and theyre not subject to the privilege. Thank you. A part of what you need to do, mr. Chairman, in my view, is what we did in the 9 11 commission, and that was get the public behind us and the way we did that was to have open hearings and to have the American Public realize that we were asking the kind of questions that we should be asking of the people we needed to question. Mr. Clapper was really good. It was important that mr. Clapper and the attorney on what was her name . They were great. This is important. Sally yates. This is why were having this hearing and 2018 will be here before you know it and 2020 will be here before you know it. Senator whitehouse . I would like to ask a different question. It has a different responsibility over the department of justice and the fbi. It is important for us to be able to determine that the department of justice and or the fbi actually did a credible job of doing an investigation, that they didnt botch it and that they didnt bury it for political reasons and that they actually did their job, and it seems to me that that oversight comes into potential conflict with the protection of the substance and the contents of an executive investigation, and the way that i think this can be worked out, but id like your thoughts is that we might not be entitled to ask the investigators what they did in an ongoing investigation, but were certainly entitled to find out whether people were assigned to the investigation and how many there were and there was one person assigned to it and an investigation that has 60 people assigned to it. Were entitled to not paw through the documents that were collected, but were entitled to find out if there were subpoenas and how many files of paper did they fell and did they ever do any witness interviews and it seems to me that those are legitimate questions to ask that dont intrude on the protection for ongoing criminal investigations and simple things like if youre doing a rico, did you go through the process the department of justice has for signing off on a rico approval and did you follow your own guidelines and none of those questions would seem to me to interfere with the legitimate protection of an ongoing criminal prosecution or investigation from legislative interference. What are your thoughts in that area . What are the types of questions that we can ask in our oversight role to assure that criminal investigations or, frankly, even civil investigations were neither botched nor buried . Senator, i can tell you about one such investigation that was done on the house side in 2003 by dan burton as chair of the government reform and oversight committee. He was looking at the how the u. S. Attorneys office had gone against the irish mafia of boston. Whitey bulger was the name used. Im from rhode island, i remember it well. And he ran into a formal claim, a full, written, formal claim of executive privilege by president george w. Bush at the time. He had no horse in the race. He was just his attorney general said this is a tradition and we dont want to give in on it and would you give me the claim of privilege and he said, yeah, ill give you the claim of privilege, and congressman burton, chairman burton won. He went to the mat. He was willing to go to contempt, and he got the materials. Some things were subtracteded from them and the particular things are those that were genuine rule 6e and actual transcripts of the grand jury rather than just things that touched the grand jury or have been asked for for the grand jury or something out there and that was a remarkable example because it was not that Many Committee chairs senate or house are interested in doing that retrospective oversight, but he did it. So if you have any further comments on that subject, id love to give you the chance to answer for the record in writing so that we have a good record of that. I think its an important question and its a little bit at an angle to what else weve been talking about. I would like to close out, we talked a lot about immunity as a potential place where congressional investigations can conflict with criminal investigations. Another place where i think we probably need to be careful is calling a witness who may be a cooperating witness in the criminal investigation unbeknownst to the rest of the world because they could be asked questions whose truthful answer would reveal status as could be racooperators before t investigation was revealed and we could face the more or less constant problem of a witness given multiple testimonies and creating a cloudy record that makes it easier for Defense Attorneys later to cause trouble in a trial. I used to work with a prosecutor who useded to say i dont like eat chewed food. He didnt like to go places and give lots of testimony. Other than those areas, protecting the anonymity of cooperating witnesses who have not yet been disclosed as cooperators and creating a confused record of multiple testimonies, are there any other red flag areas that we should be alert to . Make it a question for the record, too, so that we can follow up. As a former prosecutor, i will tell you that my experience tells me that necessity is the mother of invention in virtually all of these categories. All of these things are things that a prosecutor would rather not have happen. He had his druthers and he does not want what he regards as a premature revelation of a cooperating witnesss status. He doesnt want the opportunity for his witness to screw up by giving inconsistent statements in different venues and the like. So they are remedied by figuring out workouts around the problem and they are remedied by doing the work to make sure the witness is prepared adequately before he or she is handed off to some other body thats going to take sworn testimony. So these are all in a nutshell, areas of hazard, but not insurmountable hazard. Exactly. To finish that thought. If youre a prosecutor and your star witness and all things being equal, you wouldnt send them up to congress to be beat up. It makes perfect sense to me. Thank you all very much. Youve been very helpful. Were going to plow ahead here and see if we can come up with a witness list that we think serves the benefit of the Judiciary Committee in our lane and well talk to in mueller and see if we can have a resolution to give as much information to the American People about what happened, why the russians did it, did they do it and are they going to do it again if we dont act . So thank you all very, very much, and well leave the record open for further questions. Thank you. Thank you all. Thank you. If you missed any of the hearing you can find it online at cspan. Org. Mitch mcconnell announced the august recess would be delayed until the third week of august. In a statement it was to, quote, provide more time to complete action on important legislative items and process nominees that have been stalled by a lack of cooperation from our friends acss the aisle. He made the announcent after a meeting with Vice President pence who was on capitol hill to discuss progress on the Senate Health care replacement. Well bring you any updates on the senate, on the cspan networks. Sunday night on after words, syndicated columnist naomi klein on her book no is not enough. Resisting trumps shout politics and winning the world we need, shes interviewed by madea benjamin, founder of code pink. I wonder if you could tell us how the stage was set for trump. I see this very much as a bipartisan process, the table that was set for trump, and it isnt just about politics. Its about media. Its about news coverage. The table was set for him in so many ways that all he needed to do was just show up because it was sort of we were already treating elections like reality tv shows. We already had a media landscape that was much more interested in interpersonal dram as between candidates than in indepth coverage of the issues. We already had democrats using the tools of corporate branding themselves. President trump was a fantastic brand. He used incredibly cuttingedge marketing techniques and a lot of us felt that there was, you know, that behind the claims that he was leading this deep change and transformation that there wasnt enough change and that also helped set the table for trump. Watch after words sunday night on cspan2s book tv. This weekend on book tv on cspan2, saturday at 7 00 p. M. Eastern, former chess champion Gary Kasparov talks about his book deep thinking on Artificial Intelligence and its impacts on society. Machines for centuries for millennials have been taking over all forms of manual labor. When machines would take over jobs from, you name it, manufacturing job, thats natural. Now the only difference is machines are coming after people with College Degrees and political influence and twitter accounts and suddenly its a big story. Wall street journal columnist jason riley discusses his book false black power and his argument that blacks are disadvantaged economically by political capital. Most groups in america and elsewhere who have risen economically have done so with little or no political influence. And groups that have enjoyed early political suggest have tended to rise more slowly. So its not that you cant take the political route. You can, but chances are youre going to rise more slowly than you would taking other routes. For more of this weekends schedule, go to booktv. Org. Coming up later this afternoon, a forum on samesex marriage hosted by George Washington university and a look at lgbtq rights under the equality act. Live at 7 00 eastern time tonight on cspan3. You can also stream the discussion live on cspan. Org or listen live via the free cspan radio app. The senate held a confirmation hearing for Navy Secretary nominee Richard Spencer earlier today. Hes a former marine Corps Helicopter pilot and an investment banker. His nomination has received support from both democrats and republicans. The Senate Arms Services Committee Hearing ran about two hours