Pod Save America - “Literally farcical.”

Episode Date: May 11, 2017

Trump fires FBI Director Jim Comey in the middle of an investigation involving the Trump campaign’s potential collusion with Russia, and gets plenty of support from Republicans in Congress. Then, former White House Counsel Kathy Ruemmler joins Jon and Dan to talk about the legal implications of the Comey firing.

Welcome to Pod Save America. I'm Jon Favreau. I'm Dan Pfeiffer. On the pod today we have former White House Counsel and friend of the pod, Kathy Rumler. She's going to talk to us all about her legal advice in such a situation that we're now in. You should also check out Pod Save the World from yesterday. Tommy woke up at 5.30 in the morning and did an impromptu interview with former Department of Justice spokesman Matt Miller

about James Comey's firing. So go check that out. And tomorrow, Friday, on With Friends Like These, Annamarie Cox talks to Ben Howe, a never-Trump conservative, who has some advice for the left about the Tea Party's successes and failures. And she also talks to Brandi Jensen

about Ivanka Trump. So check that out tomorrow. And then, of course, on Wednesday, next Wednesday, May 17th, we will all be at the Ace Hotel in Los Angeles with our special guest, Mayor Eric Garcetti. So that should be fun. Yeah, I'm excited to get to LA. We'll see if the LA crowd is as lit as the San Francisco crowd.

I'm telling you, I hope not. That was something right there. Really doing my hometown proud. We should one day, we should have some sort of contest where whoever calls the most voters or knocks the most doors, we will give them access to the San Francisco live show Q&A. I mean, it's nothing for us to be embarrassed about. I want everyone to know that. I'm fine with our answers. We were amazing. Let's be very clear. It's the questioners.

We're protecting the questioners here. Okay. So I think there's a little bit going on in the news today. I don't know what you're talking about. What a clusterfuck. I want you to know that I came up with that term yesterday. Clusterfuck. Thank you for priming the pump on this conversation. Unbelievable. We're talking about Trump claiming that he came up with the phrase prime the pump in an interview with The Economist of all places. I love that guy. You sent me that transcript this morning. It was like 6 a.m. and I'm reading through it. I was like, there's too much to focus. I can't read another interview where Donald Trump sounds like a fucking moron.

Donald Trump sounds like a fucking moron. I mean, The Economist was quite a thing. The Time Magazine interview where he brought the Time reporter, had the Time reporter for a four-course dinner and then brought them in to show them something he was very proud of, the 60-inch screen TV that he had added to the president's private study. And his TiVo because he records all the morning and daytime cable shows and then he plays them back and gets angry late at night. I think it's very healthy.

And then maybe he does some, then he makes some perhaps rash decisions. Right, like firing the director of the FBI, which is what we'll be talking about. So this happened on Tuesday. We were having a crooked media retreat. So we had no laptops, no phones. We were all sitting at the table trying to plan the future of the company. And then we took a break and someone saw that this news alert came up that Comey was fired and we all turned on cable. We turned on CNN and there in one of the 45 boxes on the screen was Dan Pfeiffer.

I know, I was. This is pretty good so i would i about 15 to 20 minutes before the news happened i was already scheduled to do cnn in a fortuitous moment as a contributor and i was doing a call with the producer and the topic was going to be comey about because this was on the heels of the Comey testimony. Oh, yeah. Okay. And the criticism of Comey for misstating how the emails ended up on Huma Abedin's laptop. Right. And so the question the producer asked me, she's, do you think Comey should be fired? And I said, that's insane.

That's the FBI director is the one official in Washington who can't be fired they serve 10-year terms you absolutely can't fire me it's a moot point we shouldn't even talk about it hang up the phone feel pretty good about how I schooled this producer on how things work in DC sat down at my desk looked at my at my phone and then my phone exploded and I went back and looked at our text chain over this that we have with Tommy and Ben Rhodes and Cody Keenan. And it's just me saying, holy shit. And then you saying, wow, that's it. That's all we had. That's really funny. So you weren't one of those Democrats that said, absolutely, he should be fired. I've lost confidence in him. No, I don't know whether we were talking about something keeping it at 1600. But of those Democrats that said, absolutely, he should be fired. I've lost confidence in him.

No, I had, I don't know whether we were talking about something keeping it at 1600. But I hope whenever they in the middle of the Comey fiasco, when the Democrats were saying Hillary should fire him, I was like, Hillary obviously can't fire him. Like, that's insane. Like, why are we even saying this? Of course, he can't be fired. He's the FBI director. And he was in, it's just it was so insane. So like, I am one of the few Democrats, I guess, who can defend his 2016 statements about this. But even what the Democrats said is irrelevant to what actually, to what, why, what actually happened. Yeah. Well, also, like, I just remember thinking, like, I was unbelievably pissed when Comey, you know, released the letter a week before the election. I thought it was crazy. I've been unbelievably critical of it. But as soon as Trump becomes president,

like, I was instantly thinking, of course, he needs to keep Comey on this job, because the last thing we'd want in the world is a fucking Trump pick for the FBI. Like, I feel like we've all sort of known that from day one, you know don't of course it'd be like bo dedal or rui giuliani or some fox news contributor right it seems like no amount like whatever comey did to hillary clinton whatever he screwed up like it made us all mad but like in no way would that house would that somehow be worse than a person that trump would appoint to the fbi i mean when he had his pick for doj when you have fucking je Sessions now. So, you know, when Trump fired Sally Yates, who was the acting attorney general who refused to enforce his Muslim ban. And a lot of people went around saying, this is like Watergate,

this is like Watergate. And it really wasn't, right? It was, I mean, it was the acting Attorney General. I think it was, he should not have fired her. She was, has been proven right by multiple courts, both in Hawaii and on the mainland US that she made the right decision. But this is like, some people overstated the case back then, but when you fire the person

who is in charge of investigating you for colluding with Russia to tilt the election in your favor, that's when the Watergate thing doesn't seem so crazy. No, it makes Watergate look like a fucking technicality. I mean, Jesus Christ. So before we get into the like 5 billion White House sources who leaked to the New York Times and the Washington Post, let's just start with what's on the public record. Maybe you're not inclined to believe the millions and millions of sources who are leaking. So over the last several months, Comey has A, testified that there's absolutely no evidence to support Trump's lie that Barack Obama wiretapped him, and B, testify that the FBI

is investigating whether people on the Trump campaign colluded with Russia to interfere with the 2016 elections. Trump hated that Comey said these things. How do we know that? Well, he tweeted about it constantly. Over and over again, Trump tweeted about how the Russia investigation was fake news, about how history was going to prove him right about the wiretapping claim. Last week, Trump tweeted that former Director of National Intelligence James Clapper said that there was no evidence of collusion, even though there was an old quote from Clapper because he left the government four months ago, so he would have no knowledge of an FBI investigation. And then Trump had an aide actually paste his tweet about clapper on his twitter background remember that was just like yesterday or two days ago um so we know so we know he was fairly testy about this um and then

of course on tuesday he fires comey and makes up a bizarre rationale for it i mean it's it's so funny the when i was on cnn so let's talk about what the rationale was yeah so the rationale was um that that james comey had in sarah huckabee the uh sean spicer's just replacement and waiting here sarah huckabee the white house press deputy press secretary said that comey had committed, quote, atrocities in his investigation of Hillary Clinton's emails. So that's the rationale. That was the original rationale. We have since changed it. Yes.

Jim Comey is the poll pot of FBI directors. Right. That's recommended it. So you have a memo from Rosenstein that says, here's all the ways that Comey broke with longstanding Department of Justice policy in his handling of Hillary's email investigation. Hey, John, quick question. Sure. Was Attorney General Sessions allowed to be involved in matters including the Russia investigation? No, because he recused himself because he lied to Congress about meeting with the Russian ambassador.

Yes, a Russian ambassador who was known by many to be part of Russian intelligence. Right. And because he neglected to tell Congress that when he was asked if he had met with any Russians, he recused himself from any matters related to the Russian investigation, except when he decided to write a memo recommending the firing of the man who was leading the investigation. Yes. I just want to get all these things on the record so that's very normal very normal um so rosenstein writes a memo to sessions sessions then writes a memo to trump and uh and then and then trump fires them um trump also so then but then by wednesday uh the white house said, Trump has been thinking about firing Comey since November and then became strongly inclined after his testimony last week. Which doesn't really hold up with the fact that then the Deputy Attorney General writes a memo a couple days before the firing about all the things he did in the Hillary Clinton investigation.

Right? Yeah, no one, zero people believe this. Zero. Well, they just, I mean, the White House changed the story. The White House contradicted the White House. Forget about all the sources. Forget about whether you believe the fake news or not. The White House fucking changed their story.

Yes, they did. I i'm gonna give you my professional opinion here they did not handle this well um but i just there's so much about this um that is worth picking apart rod rosenstein i don't know the man all i know is that he was voted unanimously by the senate obviously we don't agree with him on many, many things. But he had, I believe, a pretty sterling reputation in the weird bipartisan clubbiness that is like Ivy educated lawyers. And he basically decided, like, he's only on the job for a couple weeks now, I think, to take the years of work that he had done building up this reputation, serving as a clerk to a judge, as a US attorney, a prosecutor, and lighting it on fire for Donald Trump. So bizarre. I would love to know what's going on in Rod Rosenstein's mind.

Well, then in the Washington Post masterpiece that we'll get to shortly. Masterpiece. masterpiece that we'll get to shortly. Masterpiece. Sources close to Rod Rosenstein say he threatened to quit. Oh, you threatened to quit? Well, who gives a fuck? Quit or don't quit.

Do not bug me with sources close to you with your background quotes about how you threatened to quit because you've been thrown under the bus for this. Well, yes. And the reason he threatened to quit is because apparently in the first days of this the trump administration said oh it was all rosenstein's doing he was the one who wrote the memo recommending the firing of comey and trump just went along with the memo rosenstein heard this got really pissed threatened to quit i don't know why he didn't follow through with it um of course today the doj said the spoke the official spokesperson the department of Justice said, no, no, no, that's categorically false.

He never threatened to quit. Yeah, yeah, we believe everything you say. So, but he did, yeah, he didn't go through with it for some reason. Maybe because he already sold his soul to the devil that is Donald Trump. Yeah, this is the person

we're depending on to appoint a special prosecutor. Rough. This is Pod Save America. Stick around. There's more great show coming your way. So you go through these TikToks, both the New York Times and the Washington Post. The Washington Post one is really the masterpiece, even though both are quite good. Apparently, Trump made up his mind during a round of golf in New Jersey over the weekend. Well, actually, technically, before and after the golf round, when he was watching cable and screaming at the television. As he does, he was just looking through that TiVo. It was like 98% full, so he had to clear out some old Morning Joe episodes.

And what did he come across? Things that James Comey said that made him very angry. So he goes back to D.C. on Monday, and he tells Don McGahn, who is the White House counsel, Jared Kushner, his grifting son-in-law, and Mike Pence, the vice president. And he tells them he wants to move forward and fire Comey. No one stops him. No one tries to stop him. There's some reports that Bannon and Priebus thought that the timing was off, that maybe he should wait a little bit, but no one was really against this. And so he then has Sessions and Rosenstein write up the memos, and then he fires them. And then, no one in the West Wing knows until about an hour before this happens, the communications team is alerted.

You always want to tell your communications team that you're firing the FBI director about an hour before you do it. It gives them a lot of time to prepare. So poor Sean Spicer and the communications director were alerted an hour before the news was announced. Most West Wing aides didn't know at all. They just found out when their phones got breaking news alerts. And then the whole thing happened. And Sean Spicericer do you want to talk about sean spicer and the bushes because i wasn't paying much attention to the news yesterday

because i was very busy and then i like looked on twitter and everyone's talking about there's like a whole bunch of sean spicer bushes memes and i had no idea what was going on okay let's do a tiktok of sean spicer's evening so late in the afternoon i think he might have briefed that i don't know he's somewhere on naval reserve i don't really know but anyway he gets called in the oval office with mike dubkey who's the white house communications director who no one he's like jerry kusher no one's ever heard his voice or seen his face they don't know who he is and they say uh sober fire in the um attorney general or the FBI director. Here's what we're doing. Someone writes a statement.

Spicer goes to his computer to send the statement to the press. But for some reason, and I don't think this is Sean's answer. Sometimes this technology does not work awesome in the White House, i.e. healthcare.gov. The statement is not sending out fast enough. healthcare.gov the statement is not sending out fast enough so he according to reports he goes to the briefing room and opens the door yells out the news closes the door goes back up to his office locks there's a door that blocks where the press work and where the press secretary sits that is always open yeah he locks the door goes in his office hides in his office watch all hell break loose donald trump is eating goes home to eat a well-done steak with ketchup that's my ad that's He locks the door, goes in his office, hides in his office, watch all hell break loose. Donald Trump goes home to eat a well-done steak with ketchup.

That's my ad. That's not actually in the Washington Post story, but I'm just assuming that to be the case, and is watching cable news. And he is surprised and concerned to find that people think this is a big deal and gets very upset. He sends signal down to his staff through I don't know whether that's like through a raven or he yells through a can on a string. I don't really know. And tells them that he wants his people on TV defending him. So they go down to the the basement where they have locked Kellyanne Conway for the last few months, unlock her, take her out. Spicer goes out on TV. And so Spicer goes out to the North Lawn in front of the White House to do some Fox interviews to essentially preach to the choir.

The press, who can't get answers to no questions, sees that Sean Spicer is right outside on TV. And so they gather in one of the few smart collective actions the press has ever taken. And they gather gather waiting for him to come off the TV. He basically hides in the bushes so they can't interview him, and they are now demanding, answer our questions, answer our questions. He will take questions, but not on camera, but while he's still hiding in the bushes and then demands that the TVs turn the lights off. So it'll be in the dark and therefore they can't use the footage of him. I mean, this is a sign that Sean Spicer is not good at his job because of course they're going to use the footage.

He's just going to look sketchy in the dark. Once the lights go off, he steps out of the bushes and he's surrounded by bushes. He basically kind of like pokes his head out like a like some sort of uh turtle and answer some questions then runs back into the west wing and hides never to be seen again six more weeks of stonewalling yeah so the whole thing is so good i mean in these reports trump is very upset at his communications team. Very upset. Very upset. He blames them for this. There are reports that he is actively thinking about firing Spicer and replacing him with Sarah Huckabee Sanders, who we can get to in a minute. While Spicer's away on his naval reserve duty. Thank you for your service, Sean. That's right.

Really nice. Great boss. Here's the thing I'll say about in to defend sean spicer for the first time and the last time on the spot this is not his fault no i don't it's not like they only gave him an hour and that would be an insane amount of time to announce the president's position on transportation reform like you need time to do things but they could have given him a decade to prepare they could have gone back in time and told sean spicer in 2007 to prepare for this moment and he would not be able to because it's un-fucking-spinnable it is the most insane thing that trump has done by far it's not even

it is so crazy the people around him are incompetent for allowing him to do this my incompetent my fate the detail that made me laugh the hardest in the washington post story tommy texted it to us last night and i just lost it when asked tuesday night for an update on the unfolding situation one top white has said simply texted a reporter two fireworks emoji which i am i am just using for anything from now on i'm sending people the two fireworks emoji when things are fucked up do you think they texted that to earth emoji and he responded with the fireworks emoji it definitely was ashley parker that got the fireworks emoji that's i'm i'm guessing it was friend of the pod, Ashley Parker. Okay, so a couple other details have dribbled out over the last couple days.

The Wall Street Journal reported that Comey was concerned by information showing possible evidence of collusion, which is very serious. There was also reports that Comey was requesting additional resources from the Department of Justice to pursue the Russia investigation. Now, Andrew McCabe, who's the acting director of the FBI right now, who's testifying before Congress as we're recording this, said that he did not make an official request, but basically he told Senator Richard Burr and Mark Warner, who were the heads of the Senate Intel Committee, that one of the things that was slowing down the investigation was that he didn't have access to prosecutors at the Department of Justice because Rod Rosenstein hadn't started yet. And there was no one really leading the investigation at DOJ because Sessions recused himself. So we know that Comey was looking

for access to prosecutors at DOJ to continue this investigation. We also know that a grand jury in Virginia had subpoenaed records, uh, connected to Michael Flynn, the former national security advisor. So a grand jury is now involved. So it feels like this investigation was probably getting somewhere. Of course, we don't know. Again, we have no idea what this investigation might uncover. All we know is that Trump seems to be doing everything possible with no worries about how it looks to stop the investigation. That's all we know. Trump also said in the letter where he fired Comey that Comey had told Trump three times that Trump wasn't under investigation. This, of course, would have been in violation of Department of Justice protocols

to not discuss ongoing investigations with the White House, particularly when the people in that White House are targets of the investigation. And there's random FBI officials on background that said that Trump's assertion that Comey told him he wasn't under investigation was farcically untrue. Farcically untrue is a good name for the history of the Trump presidency. That might be the title of this episode. Oh, good call. Good call.

There we go. We got it. I always worry about that. Okay. So what do we do about this? It's all, I mean, this would be like riveting reality television if it was happening in another country and it wasn't like, you know, the downfall of our republic here. But so now we look to Congress to rein in the executive branch's, you know, absurd craziness here. I think it is an abuse of power because, yes, the president has the authority to fire the FBI director.

Absolutely. That is, it's not illegal to do that. That is part of what you do. Firing an FBI director who's investigating your campaign for possible collusion with a foreign adversary does in fact seem without without naming a special power encouraging the doj to name a special prosecutor that does seem like an abuse of power to me do you think it's abuse of power and potentially impeachable abuse of power i don't know we should ask we should we're gonna we're gonna have a lawyer on the phone in a little bit.

A very well-qualified attorney. A very well-qualified lawyer. Very different than Don McGahn, who may have his law degree from Trump University. So let's look to Congress. Republican reaction, as usual, a bunch of courageous heroes there. So the New York Times has a very uh has

a great feature they're doing like a running list of uh what everyone everyone in congress's reactions are to this so if you look at uh which republicans have called for a special prosecutor zero number of republicans who's called who've called for an independent investigation or commission five senator mccain and four congressmen if you the number of republicans who have questions or concerns about what has happened numbers at 34 so no one else really seems that worried did you watch the video of marco rubio's response to this oh man i didn't i saw the quote and that was that was all i could handle marco rubio has become like yeah maybe we're not super fair to marco rubio saw the quote and that was that was all i could handle he marco rubio has become

like yeah maybe we're not super fair to marco rubio all the time and we make fun of him and love it calls him marcus rubinstein but he has basically become the pot safe america character himself he he gets caught in some event he's like yeah well it happened trump fired him. It's his call. And, well, you know, we'll see where we go from here. It's like, we're just going to wait. We're going to say nothing and see which way the political winds blow. And then we will pick our position. It's really bad. It's like I actually thought that the Lindsey Grahams of the world would be very upset about this. Not like Lindsey Grahams, you know, courageous on every issue by any means. But on the Russia stuff, he's at least been a little better. And he was like, yeah, no,

it's fine. Trump can do whatever he wants. I don't know. I don't know what they're doing. I think that they're doing what they've typically done so far in this administration, which is count everything Trump does because they want to move forward their legislative agenda to cut taxes for rich people and take away healthcare from everyone else. But it doesn't seem like they're really showing a lot of courage here. Well, if there've been all these Watergate like throwbacks and people are like

sending around articles from around Watergate and people's statements and the articles of impeachment and which got me thinking that if paul ryan and mitch mcconnell were the leaders of the republican party during the time of watergate richard nixon would have finished his term and spoken at the next year's convention and be lionized as a hero by republicans they would probably. The reason Nixon went down is there was bipartisan concern about that he had abused power in office and he was forced to resign for fear of being thrown out of office. But this is, I mean, I don't want to get overly concerned or overwrought about this, but in the last two weeks here, the Republicans passed a bill that affected

a sixth of the economy without hearings, without an estimate, without a process, without even reading the bill, just jammed it through and didn't just have gone on TV and lied about what it meant, just with no regard for the truth. The President of the United States fires the FBI director, something that was foreboding in Washington before this. This is so far outside the political norms. Fired the FBI director who was investigating him because he was mad the investigation was still going on. And then the Republican Party backs him, repeats his ridiculous talking points and sticks with them. And just as a side note, two side notes, a reporter asked questions of HHS Secretary Tom Price in West Virginia about the bill that would kick 24 million people off health care, and they had that guy arrested. And the argument was, well, he asked questions outside of designated press areas.

And then, further side note, another alarming piece of news today. Trump has started a voter fraud commission headed by one of the worst people in America, Kansas Attorney General Chris Kobach. Which is basically a voter. The idea is to prevent people from voting. This is not good. basically spent his career uh prosecuting voters uh which i think he only he only won like a few cases small misdemeanor fines for people uh voting because uh they lived in two different places like uh like steve bannon yeah so commission on voter fraud to find those three to five million people who voted illegally um the the lie the one of the first big lies he told his president uh also another scary thing the census director director abruptly quit because he wasn't been Congress wasn't giving him the necessary funds to complete the census in 2020.

That's a big deal because the census in 2020 and the census director, like figuring out how many people are in the country, goes directly to congressional redistricting. It goes to resources that go to various states. So there's an enormous amount of power that comes with, you know, the census and what the census says. There's an enormous amount of consequences

that come with it, too. So that was also very frightening. Our friend Brian Boitler, friend of the pod, has a great story about this today where he said, absent consequences, Trump will rightly feel liberated to appoint whomever he wants to run the IRS when the current commissioner's term

expires later this year. More alarmingly, he will know that he can get away with ordering a crackdown on voting rights or investigations of his political enemies. When loyalty and corruption become job qualifications for political appointees, the president will have the power he needs to stifle protest leaders, judges, the free press, and political rivals. He won't even have to make threats. I think it's an important point because it's not authoritarianism that comes, like we've seen in other countries, with, you know, overt threats like that. It is, basically, everyone around him is saying Comey was fired because Comey wasn't loyal, and Comey was independent. And so

people now know that to work for Trump, even in a quasi-independent role or a role that has traditionally been fiercely independent, you have to be loyal to him. And if you're not, you get fired. Are you watching or have you watched The Handmaid's Tale on Hulu? No. Emily has been watching it and she says that she likes kind of scary shows and stuff like that. She told me it would be a little too much for me. But I kind of want to watch it now because Emily and Lovett have been talking about it nonstop. And it felt different on Tuesday. I mean, the basic premise is, I won't get deep into it, but it's about a dystopian future.

the premise is i won't get deep into it but it's about a dystopian future but america sort of stumbles into it with a couple of things that happen and before they know it there are laws passed that women can't work and you can enslave women but it just happens kind of slowly and then that's the scary part right i'm not saying that's going to happen here let's not yeah i'm not being a snowflake back off people but we are are entering territory that the guardrails of government are coming off pretty quickly. You know, Mark Salter, who's been John McCain's top advisor forever, tweeted something to the effect of, he never thought he'd say this, but Democrats winning Congress may be the only thing they can save democracy. So the security of the United states depends on a democratic congress in 2018 yeah john mccain's john mccain's longest serving aid his speech writer this is the thing that has been the scariest to me that has happened since we've been here because i've always kind of

believed that there are stop gaps in the you know there are things I think that would prevent Trump from actually starting like a major – like just like sort of launching bombs at North Korea or something. There would be – the military has a process that sort of possibly adds some deliberation to this. So that worries me. But this is something – and then the other rest of the stuff is policy. It's terrible policy. It affects people's lives. But this is something that I think opens a door to a new way of – I mean I think you're right. It is authoritarianism aided and abetted by one of the co-equal branches of government.

One of the jobs of Congress is to put a check on power of the president, and they are not – that is not what they want to do. They want to give him as much power as possible. And it is alarming on a whole host of levels because we are like 110 days in here, people. We've got a long way to go before we can do anything. And even people like Mike Pence, who seems to be really terrible in a lot of things, but he was a governor. He was a member of Congress. He is a far right, but normal

ish Republican. And he's just like, yeah, fire the FBI director. Do that. That seems normal. Like what the fuck? It's important for everyone to remember we would not be in this frightening situation were it not for the republican congress that we have the system the system of government is not broken the checks and balances remain in place to stop this man from his own lunatic incompetence but the republican party the elected Republican Party in Washington, has failed the United States of America so incredibly by just letting all this happen. It is so pathetic. And every last one of them deserves to be voted out of office in 2018. And if we have a Democratic Congress, we won't, I mean, we'll still have to worry about plenty of things over, you know, between 2018 and 2020 when hopefully we can elect someone who's not Trump.

But most of the abuses can be curtailed by a Congress that actually wants to check the power of the president. And we don't have Republicans who want to do that right now. We don't. That doesn't matter what Donald Trump does. They just, they do not want to stand up for it. It's pathetic. I think this changes the way democrats have to approach this like you and i asked this question this was the favreau question why didn't democrats hold the funding

the government hostage to prevent why did that why did they why did they not refuse to give their votes for funding in the government unless the republicans to basically prevent the republic from passing wealth care no zero people answered us not a single person um came back to us so i still don't know the answer to that i will probably know the average but this is like where democrats have to play hardball now like absolute hardball well you know what there was a story about, like, Chuck Schumer was saying, oh, we're going to pull out all the procedural tricks to grind government to a halt

until a special prosecutor is named, right? So yesterday, they tried to pull some, you know, tried to slow down business. They successfully did. You know, Schumer was delaying a bunch of things, which is great. Susan Collins was all mad at him. She's like, oh, this is ridiculous. And she's like a moderate. You know, she's like, this is stupid that we're holding this up. But there's this whole

story about it. I forget where, but I'll retweet it. About like what the Democrats haven't come to a consensus on how to deal with this. And someone asked Tim Kaine, like, oh, do you think that the Democrats should delay everything in the Senate and hold up government until there's a special prosecutor? And Tim Kaine's like, I don't know about that. I think we can walk and chew gum at the same time. No, no, Tim Kaine, you should, the Democrats in the Senate should hold up government until a special prosecutor is appointed. And again, it's like the special prosecutor may not find anything. This investigation may not uncover collusion. I don't want to be one of those liberals who thinks like, yes, absolutely. We're going to find out collusion with Russia. Trump's going down.

There's a pee tape, all of that shit. I don't know. I'm not one of these people who think this. But like, for the sake of democracy and the institutions in this country, we have to have a special prosecutor to give people faith that this investigation is being conducted with some semblance of independence. We have to have that. picked FBI director who will be rubber stamped by the Republicans in the Senate, who, you know, who go immediately from the from the set of the five to the FBI office, if when they come back, and if really nothing really happened, and they say that no one will believe it. If a special prosecutor who is Democrats have endorsed comes back and says nothing has happened, some Democrats will not believe it, the sort of Louise Mensch Democrats are not going to believe it. But it will be credible to a lot of people, and you can put it behind yourself.

These are not the actions of a man who believes he's innocent. No, they're not. We've been saying this all along, and every time he just keeps up in the ante. But yeah, no, they are not. Okay, we're going to get to Kathy, who's probably waiting for us to give her a ring. So when we come back, we will have former White House Counsel Kathy Rumler. Don't go anywhere. This is Pod Save America, and there's more on the way.

On the pod today, we have the former White House Counsel for President Barack Obama, friend of the pod, Kathy Rumler. Kathy, welcome to the show. Hey, how are you? Great to be here. We're happy to have you, finally. So what do you think about the crazy situation we're in today? Don McGahn, who is the White House counsel, the job that you had for Barack Obama, was one of the few aides that Trump confided in about his decision to fire James Comey and advised him to do this. Could you imagine advising a president to do this? Would that have been your legal advice?

It's really, it's unbelievable. I mean, I don't even know where to begin to describe sort of my shock and awe and outrage and anger and sadness about the way the whole thing was handled. But to answer your question, no, I can't imagine ever giving that advice. And you all worked with me for a number of years, and you know there's no chance in hell I would have ever given the president the advice that he should terminate the FBI director in the course of an ongoing investigation and certainly not then provide what I think are pretty transparently pretextual reasons for doing so. And just what would you have said, right? Because a bunch of us political people, communications people, would have been in there saying the optics of doing this are completely fucking insane,

but I'm sure you would have given more measured legal advice. I would have tried. What would you have said? Besides the obvious optics of this, what are some of the problems with doing this? Well, of course the president, I think as many people have said, and it's correct, is that as a legal matter, the president has the authority to terminate the FBI director as he does any other member of the cabinet. And, you know, so he legally has that option, and if I were to advise the president, I would have told him you legally have the option to do so, really for any reason, you know,

as Jim Comey said in his resignation letter, and he's right about that. You know, as Jim Comey said in his resignation letter, and he's right about that. With that said, there are a number of other constraints on, you know, the president's exercise of that authority, including political constraints, you know, most importantly, sort of prudential constraints, the, you know, whether it's sort of the right thing to do. And what I mean by that is, you know, is doing it, and particularly doing it at this time and in this way, in a very hurried manner, messaged in a way that, you know, sort of fell apart, the narrative that they tried to put out sort of fallen apart, you know, within the first kind of six hours after the fact, you know, it just undermines everybody's confidence in kind of the legitimacy of these institutions,

which is, you know, bad for the White House. It's bad for the country. It's certainly bad for the FBI. It's bad for the Justice Department. So, you know, those are the things that I would have emphasized, you know, to the president. And saying, if you want to, you know, look, if you want to do this, the chemistry is not right. You don't have confidence in the FBI director. Let's, you know, take our time. Think about what information we need to inform that decision. And, you know, when is an appropriate time to do it. And there are lots of things, as you guys know,

that President Obama wanted to do, either personnel-wise or otherwise, that he was constrained from doing because the circumstances weren't right and the timing wasn't right. Right. If the reason Trump did this was something that was very clear

that he was concerned about this investigation and his goal was to stop it. Do he and the people around him expose themselves to legal risk for trying to stop an investigation like this? Well, it's a great question. The answer is maybe, you know, it depends on what the facts would be, but the legal theory of liability would be an obstruction of justice theory in that, you know, in that regard. Historically, where folks have gotten into trouble from a kind of criminal perspective in these types of situations, which I hate to even say, because of course everything, it's like every day there's some, you know, completely novel situation that comes up in

the Trump administration. But if you think back to the U.S. attorney firing, which you all remember, and I think many of your listeners will remember, what happened there, there actually was a special counsel who was appointed by Attorney General McKay. Her name is Nora Danahy, and she was at the time the acting U.S. attorney for the District of Connecticut. She was appointed to investigate whether or not senior government officials had essentially lied about the reasons for why these U.S. attorneys were fired. essentially lied about the reasons for why these U.S. attorneys were fired and had lied to Congress, had lied in either testimony or in other types of statements to Congress.

And so then that was a multi-year investigation that ultimately didn't conclude, and it concluded in no charges being brought, but it didn't conclude until, as I recall, either 2009 or 2010, but well into the Obama administration. Can you talk a little bit about what – Democrats are calling for a special prosecutor. Talk about a little bit for our listeners, like what a special prosecutor is and what that means for folks. Yeah. prosecutor is and what that means for folks? Yeah.

So most people think about a special prosecutor, and those of us who are old enough to remember, we think about Ken Starr. And there were, of course, a number of other independent counsels appointed under a law, a statute, that existed at the time that had a sunset provision, which means that it had, in order to stay in existence, it had to be renewed, and it was not renewed. And so that legal apparatus to appoint someone like a Ken Starr who is truly independent from the Justice Department no longer exists. So when people are talking now about a special counsel, what they're talking about is that the Attorney General, or in

this case, the Acting Attorney General for purposes of this matter, because Jeff Sessions has recused, does have the authority to appoint a special counsel. And that's, you know, been done. And it has been done not frequently, but it has been done in the past, you know, couple of administrations. It was done, as I mentioned, Attorney General Casey did it with the U.S. attorney firing investigation. He also did it with respect to the destruction

of the CIA videotapes of, you know, enhanced interrogation techniques being implemented. So the special counsel there was a guy named John Durham, who's a respected senior prosecutor. And of course, Jim Comey himself did it in the Scooter Libby matter, in the Valerie Plame Week investigation, and he appointed Pat Fitzgerald. So there is definitely precedent for doing it. It is a decision that rests with, in this case, rests with Rod Rosenstein as to whether or not it's appropriate in this case. But the thing to remember is that that person, the special counsel, still ultimately reports reports to the Deputy Attorney General. So it's not exactly independent in the way

that we all think about it back in the independent counsel days with someone like Ken Starr. It's a little bit more independent, but it's, you know, they're still supervised and report to, in this case, the Deputy Attorney General. So that person could be fired just like Comey could be fired? Correct. That's exactly right. Were you surprised that Sessions, who had recused himself, wrote a memo to Trump about firing Comey or about Comey's mishandling the Clinton investigation?

Wasn't that, shouldn't he have not done that because he recused himself from this matter? Well, I think that raises questions that should be asked. And I would expect that, you know, the oversight committees will ask that question. And what was the scope of the recusal? And who did he get guidance from that this would, you know, was okay to weigh in on a personnel matter while also being, you know, recused from, obviously not just the Russia investigation, but he also said he would be recused from anything relating to Hillary Clinton. I can see the argument as to why a recusal wouldn't apply to him weighing in on a weighty matter, such as whether the FBI director should be terminated or not.

But I think it's a real question. And I think that I saw some reporting this morning that Chairman Chaffetz of the House Oversight and Government Reform Committee has asked the Inspector General to expand his investigation over whether or not the FBI handled the Hillary Clinton email investigation appropriately to now include questions about whether or not the termination of the FBI director was handled correctly. And I would not be surprised at all, And I think it would actually be quite appropriate for the inspector general to expand his investigation to also include that. So, you know, we, far from, if the goal here from the White House was, you know, to try to rip the bandaid off and move on from these pesky FBI matters, I think they did not accomplish that mission.

Did Rod Rosenstein's memo that he wrote to Sessions surprise you? I mean, he detailed, of course, all of the ways that he believed that Jim Comey mishandled the Clinton email investigation, and that was sort of his rationale for, you know, he didn't directly recommend his firing, but that was the rationale that the White House gave. Did that memo surprise you? Is that typical? It's not typical, and it did surprise me. And it did surprise me because it largely cited sort of validation from opinion writers, you know, outside of the department, and none of whom presumably really understood exactly what factors went into Director Comey's decision-making.

And so I was surprised by the memo. I thought it was just a very strange memo. It was strange just as a matter of process to have a memo come over, to have two memos come over to the White House from the Department of Justice. I mean, you know, the Deputy Attorney General reports to the Attorney General, so normally when you have a recommendation from the Department of Justice, it comes from the Attorney General. So to me, that was pretty transparent that they were trying to use Rod Rosenstein as a sort of political cover, if you will, because he's a career prosecutor.

At least that's the way I interpreted it. It's worth noting for our listeners that you are a former prosecutor involved in taking down Enron and lots of other very important cases. taking down Enron and lots of other very important cases. As a former prosecutor, how is it? Let's, let's presume for a second that no one appoints a special counsel. And Trump gets his handpicked FBI director. Is it possible in this scenario to actually conduct a thorough investigation and then a prosecution of what's going on here if a crime is found? Or is this sort of crippled in this scenario? I think it is possible, and I think it will be done. And the agents at the FBI are, I think, not going to be deterred from following leads because of this action. But where it matters,

and this is why the New York Times story of yesterday was so significant on this whole question, and again, I'm just reading what I see in the newspaper, but that the director, Director Comey, went to the department and asked for additional resources. If that's true, that's quite significant because cases get made or not made based on how many resources get dedicated to them. We were able to do the Enron investigation, and we were able to prosecute many senior executives at that company successfully because we got an enormous amount of resources from the FBI and from the department. And there's just no way we could have made that case if we had less resources. And so, you know, that's not sexy in terms of explanation, but it's real.

It really matters. So if you have two agents, you know, assigned to a matter, it's going to be, you know, a hell of a lot harder to make a case than if you have five agents assigned. So, you know, and you have to, the policymakers and so that at the level of the director of the FBI, at the level of the deputy attorney general, they have to make decisions about how to allocate resources and where folks should be, you know, spending their time. And so, you know, who are in those seats really makes a difference in that respect,

more so than that someone would say, you know, stop, stop investigating, or we don't like where you're going politically, so stop doing that. Because I will just tell you that the career men and women in the FBI, they will not put up with that. And that won't stay within, you know, the walls of the Bureau if that were to happen. How do you think Comey handled the Clinton investigation? Obviously, he took some unusual steps during the email investigation, both in holding the press conference in July, sending the letter to Congress. Do you agree with his assessment that he had no choice? He could either conceal or, you know, let Congress know what was happening? What do you think about that?

I agreed with his assessment that he had a very tough choice. I had, you know, concerns. Again, I'm on the outside, so I don't know everything that, you know, people inside were grappling with, and having sat in those seats and having been subject to a bunch of criticism myself, I'm always loathe to criticize without having the full facts. With that said, you know, it was the manner in which that investigation was handled vis-a-vis the public was unorthodox. And I think, you know, you guys know you've worked with me for a long, long time. You know, I tend to be very process-oriented. I tend to be, you know, quite a traditionalist when it comes to following norms and traditions because I think that, you know, those norms are developed for the hard

cases, not for the easy cases. And, you know, I, like many other alums of the department, had real questions about why there at least seemed to be a departure from some of the traditional norms about how prosecutors decline cases and, you know, what types of extra comments are appropriate to make. And, you know, those are some of the things that were laid out in Rosenstein's memo, which I think a lot of folks, again, just without knowing all the facts, a lot of Justice Department alumni would say, yeah, those are concerns. You know, now, with that said, the Inspector General at the Justice Department is looking at this very issue.

Right. So why in the world wouldn't you wait for the Inspector General who is going to interview, you know, the agents at the Bureau, who's going to talk to inspector general who is going to interview, you know, the agents at the bureau, who's going to talk to people, who's going to look at the internal correspondence and reach informed conclusions about that? Why would you, you know, basically just cut the inspector general's investigation off and say, you know, I've concluded based on the commentary of folks in the newspaper that this was not appropriate. That's puzzling to me. Very good question that the White House refuses to answer. Kathy, thank you so much for joining us and explaining this to us. And thank you for keeping us honest all those years, keeping us out of trouble.

I tried. It's really gone apart since we left the White House and we didn't have you watching over us. I can only imagine what kind of mischief that y'all are getting into. Thanks for coming on the show, Kathy. Come on again soon. Alright, thanks a lot, guys. Take care. Bye-bye.

Okay, thanks again to Kathy Rumler for joining Pod Save America today and everyone have a great weekend. We'll talk to you later. Bye, guys.