The NPR Politics Podcast - "I hope you can let this go."

Episode Date: May 18, 2017

The implications of President Trump's reported request to then-FBI Director James Comey, plus the President's upcoming overseas trip. This episode: host/White House correspondent Tamara Keith, congressional correspondent Susan Davis, justice correspondent Carrie Johnson, and national political correspondent Mara Liasson. More coverage at nprpolitics.org. Email the show at [e-mail]. Find and support your local public radio station at npr.org/stations.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

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Things may have changed by the time you hear it. Keep up with all the NPR's political coverage at npr.org, on the NPR One app, and on your local public radio station. All right, here's the show. It's the NPR Politics Podcast, here to talk about the most dramatic week yet of Donald Trump's presidency. As reports surface, he asked FBI Director James Comey to stop investigating former National Security Advisor Michael Flynn. I'm Tamara Keith. I cover the White House for NPR. I'm Susan Davis. I cover Congress.

I'm Mara Liason, national political correspondent. And Sue, you are up in your radio booth on Capitol Hill. It's too busy to leave. Yeah, seriously. If you come up here, news might happen while you're walking. Exactly. Oh, my. Okay, so just some quick housekeeping. We will not be doing our regular weekly roundup tomorrow because we're doing this episode today. And the last three days have felt like at least an entire week's worth of news.

We may be back on Friday with another short episode, but we just can't say for sure yet. So keep an eye on your feeds and on your Twitters because we'll let you know. But do make sure you're downloading Up First each morning. That's NPR's daily news podcast where you usually hear at least one of us talking about politics every morning. OK, so let's start this thing. NPR's Kerry Johnson has confirmed the story first reported by The New York Times that James Comey, following a February meeting with the president, made notes. And in those notes, he said he was concerned about something the president said to him, which was, I hope you can let this go, in reference to Michael Flynn and the FBI's investigation into the former national security advisor

and his possible contacts with Russia before Trump took office. So, Mara, how big a deal is this? I think it's a big deal. I think Donald Trump is in trouble. I don't know whether he's in existential peril. And of course, in Washington, we always like to get hysterical about things. But this reminds me a little bit of the moment in the campaign, the Access Hollywood tape came out, and there was this huge glob of conventional wisdom that he was sunk and through and many Republicans subscribe to that, but he wasn't. Yeah. I mean, I was just thinking back to that day that we were, I was here in the

building and we did an emergency podcast and we were adding up the list of Republicans who were separating themselves from Donald Trump, including Paul Ryan, the Speaker of the House. And Donald Trump was not sunk. He is president of the United States. Right. But the other reason that I think the Access Hollywood moment is a good metaphor for now is that when you remember what that tape revealed, it wasn't just that Donald Trump was piggish toward women, but that he said on that tape he could do anything because he was a celebrity. And that really reminds me of the way that he has now justified all sorts of controversies. I'm the president. I have the right to share intelligence with whoever I want.

This goes back to not divesting from his business or not sharing his tax returns. Basically, I won. I'm president. I can do this. Just like I'm a celebrity. I can do what I want. Sue? So the big question here, right, is about credibility. I won. I'm president. I can do this. Just like I'm a celebrity. I can do what I want. Sue?

So the big question here, right, is about credibility. And I think at least what we're hearing from Republicans on Capitol Hill is we have three camps. And I think we have one camp that's probably the smallest camp right now that is supportive of these calls for an independent commission to take over this investigation. Only a handful of Republicans support that, but it might be growing as the days and weeks unfold. Then most Republicans that we've talked to are just saying, you know what, let's just let the congressional committees play out and see where they go. And then you have another camp that I would think is would describe as perhaps the most the strongest loyalist to the president who are just saying fake news, right, that this is a president under attack, that he denies everything, and that we should give him the benefit of the doubt,

and he hasn't done anything wrong. Now, when it comes specifically to the Comey issue, what is so interesting about this, you know, I was talking to a congressman in the hallway just now, Mike Simpson. He's a Republican from Idaho. We were talking specifically about the Comey memos, and he said he's one of these Republicans that supports an independent commission. And he said, look, you know, we know that this exists. We need to see it. And context is everything. And we need to know the context.

Was it a direct threat? Was it more, hey, Mike Flynn's a good guy. Just want you to know that. And that's what they need to get to the bottom of. And we asked him specifically, like, there's a chance this could devolve into a he said, he said, right? Do two people alone in a room come out with two very dramatic accounts of what happened? And his point, which was really interesting to me, is that he believes in that case, the president and the FBI director, that the credibility has to go to the FBI director. And part of that is just their recent

records, right? I mean, James Comey, aside from his recent firing, is a very decorated career official who was known for keeping time-stamped regular accounts, not just of his interactions with the president, but throughout the course of his tenure at the FBI. That was one of the things he was known for. And if you've ever followed any sort of court case or criminal proceedings, diaries and time stamped and written records are evidence gold. That's what's happening here is that Donald Trump has either dissembled, said something inaccurate or outright lied so many times. And he's even talked about it as being a useful thing to do. Truthful hyperbole was one of his tools as a real estate magnate and a reality TV celebrity.

And rectitude is Comey's middle name. But the other thing that I think is interesting that Sue really put her finger on it, because I've had a lot of people say to me today it's going to be a he said, he said thing. Comey is not saying necessarily that Donald Trump committed obstruction of justice. That's a legal term. Yeah, and we're going to get into the legal stuff in a little bit with Kerry Johnson, our justice correspondent, who will join us in a few minutes. The one thing that I think that there is broad bipartisan support for up here is that Comey needs to come up and testify and he needs to do so not just in private for the classified stuff he might not be able to divulge in a public setting, but also that he really does need to

testify in public to give the public some idea of where he's coming from. And hasn't he said he'll only go to Congress? He only wants to testify in public. Yes. Unless it's classified, of course. Yes. I think he was more he won't only speak in private. He wants an opportunity to talk in public.

Right. And Jason Chaffetz, the chairman, the Republican chairman of the House Oversight Committee, has now scheduled a hearing and is requesting that Comey come testify next week. We don't know if that's actually going to happen or not. And just to get the White House's position out there, the White House has denied that the president made any request of Comey that he lay off of Mike Flynn. And Sean Spicer, the press secretary, reasserted that just this afternoon, saying that the president has been very firm about this, that his account of the conversation is quite different from James Comey's account, though we haven't actually heard from the president himself on this yet. And he's been conspicuously quiet on Twitter for the last 24 hours, which is kind of remarkable. That must be taking some real

restraint because when he gets mad or feels aggrieved or unfairly maligned, he does take to Twitter. But Tamara, didn't they put out a statement last night that was pretty categorically this did not happen? Yeah. This conversation didn't happen. Not that we have a different version of it. Well, I mean, I think that they are not denying that they got together and they had a conversation. They are denying that the president asked Comey to lay off on them. Drop the investigation. Yes. And here's the question, though. How much credibility does a real problem because not only has Donald Trump contradicted his press aides, his vice president, he's even stated in a tweet that his spokesman should not be expected to be accurate because he's such a busy guy. So this is a real problem. And Donald Trump has notoriously low ratings for honesty and trustworthiness, even among his supporters. And James Comey is considered to be a very truthful, rectitudinous guy. So I think if it does come down to he said, he said,

it's a problem for Donald Trump. And more and more people on Capitol Hill, I mean, Sue could speak to this. They don't take what the president says at face value anymore. No, and I think that there's a lot of skepticism among the staff. I would say on a staff level, what you hear up here, particularly from people that do press communications for a living, is that there is like a sense of just being blown away at sending out your communications team to say things at the podium and then having the principal, whether it be the president or a lawmaker or somebody, directly undercut their own staff. I mean, that is just a really unsustainable situation, not only just from a PR perspective, but from a legal perspective. A lot of what the White House is saying and doing as these investigations proceed will really matter in how they justify and how they explain and how they defend their actions. being cavalier about it, or even just the tweets from the president. I mean, you just see people up here who do this for a living just being absolutely gobsmacked at the behavior coming

out of the White House. And, you know, just one little factoid that we can't forget is that Donald Trump used to impersonate his own spokesman. I don't know if he's doing that anymore. Maybe he should do that again. And you guys know this better than I, but it does also seem that one of the like less serious but side dramas of this week has been a White House that has in multiple reports just being cast as an absolute turmoil. Not just that the president is angry. He's been described as volcanic and rage filled, but that you have staff that seems to also be turning on itself. The leaks coming out of the White House alone this week, just on terms of the internal turmoil, whether Sean Spicer's job is at risk, whether White House Chief of Staff Reince Priebus can keep his job. I mean, all of this churn

going on is sort of background drama to a much bigger story. Mara, you were at the White House this week when some of this was unfolding, standing in hallways outside of Sean Spicer's office. Were people yelling inside? Well, this is becoming a kind of modus operandi at the White House. Something happens. The Washington Post breaks a story late in the day and then you rush upstairs to get a comment from Sean Spicer. Sometimes the hallway is locked. Sometimes you get in the little teeny hallway and stand there like sardines waiting and waiting while Spicer and Sarah Sanders and other people might be huddling in the Oval Office

or figuring out what they're going to say. Sometimes they're caught so flat-footed they have no time to react, especially to the Comey firing. But so what is it like over there? And you're talking to people inside the administration. What are they saying? Well, it's hard. It's a hard job. Look, I have a tremendous amount of sympathy for the communications staff there. I think they actually are professionals. They're trying to do the best job they can. They are not backstabbing each other. They're trying to get the best information they can from a president who isn't giving them very many or is contradicting what they say or tells them to go out and say one thing and then the next day he tweets another.

I think it's frustrating and hard. I think that above all, they would like to have these stories stop shifting. That's what they really would like because they... I think a lot of people would like that. And it's hard and it's frustrating and they're working long hours. And the problem is that the things that any normal White House would do, which is get your story straight, stick to it, and then try to focus on the things that the American people care about, jobs, health care, taxes, that's just not happening because, as they will admit to you, Donald Trump has not decided to do that. What do you mean? He hasn't bought into the fact that there has to be order and discipline.

And this worked for him as a businessman, as a show businessman, and as a candidate. This is what's worked for him. He goes by his gut, his instinct. He's very visceral. He reacts to things. And that's how he's governing. Okay. So I just want to pause to spell out what has happened over the last eight or nine days, because it is a remarkable I mean, it feels like I don't know, it feels like at least a month, right? So first, Trump fired the FBI director, then he contradicted his own White House messaging about why. Then he suggested he might be taping conversations at the White House with Comey, which now everybody wants the tapes.

The day after firing the FBI director, President Trump met with the Russian foreign minister and ambassador. And in that meeting with the Russian foreign minister and the ambassador, where no American press were allowed in, he reportedly discussed some highly classified information jeopardizing an intelligence partnership with a major U.S. ally. NPR has not independently confirmed this, but in some ways the White House, while disputing it, has also confirmed parts of it as well. Then we learned that the president wasn't briefed on where that information came from. So the White House is saying, you know, he didn't know that the sensitive information he was giving away came from an important ally and that he shouldn't have been giving it away. And that was all before the news of this Comey memo broke last night. It's a lot. It's a lot. It's a lot. And every time you think that the day is just about to end, bang, something happens. There's also, to me,

there's so many layers to this, right? And one of the layers in this most recent revelation about the Comey memos and that conversation is that how is this coming to light? And we do not know the exact sources, but I think reasonable people can agree that these stories are percolating because of leaks inside the FBI and the intelligence community against the president. So you also have this broader, bigger dynamic of what's happening inside the government and a Justice Department and maybe perhaps some elements of it feeling threatened by the president and feeling threatened by what he did to James Comey and feeling that perhaps there are attempts to influence and you have this internal fighting going on between inside the government itself. There's no doubt about that. There are many people I've talked

to in the White House who believe that the intelligence community didn't necessarily plot to undermine the president, but took opportunities to undermine him as they presented themselves, like what happened in the Oval Office with the Russian foreign minister, like revealing the contents of a memo that Comey wrote. And if I'm remembering this correctly, Deep Throat, who was a high-ranking FBI official, he was number two, Mark Felt, was motivated to talk to Woodward and Bernstein because he felt that the FBI was being undermined or mistreated or somehow maligned by Richard Nixon. And one of the things we're hearing a lot from particularly Trump's Republican allies up here

on Capitol Hill is that the thing that they're more angry about right now is the leaks. It's not the information we're finding out from them, but the fact that people inside these meetings, like as in the meeting with the Russian officials that you referenced, Tam, that that information was leaked out, like the Comey memos. They're less concerned with the substance and saying, we need to figure out who the leakers are. Does that remain sustainable, though? I don't know. And one of the other side points that was in the New York Times story that initially broke the Comey memos was also that Trump has allegedly had conversations with Comey about how he wanted the Justice Department to be more aggressive towards the press and suggested that

he should lock up reporters that report on classified information leaks. Leaking classified information is a crime. He has a point there. Regular leaks are not a crime. Also, there are a lot of regular leaks coming out of the White House. And the Comey memo, we should note, was not a classified document, according to press reports. Anyway, we'll get to more of that in just a minute. But Sue, I wanted to ask you about the legislative agenda, because I haven't heard much about health care since the House passed that bill. You know, I have a little bit

of a different take on this, I think, than what we're hearing a lot of. I think there's this initial reaction that it's going to blow up everything else that's happening on Capitol Hill. And while, you know, we don't know where these investigations are going to go, we don't know how long it's going to what's going to happen with them in the short term. No, it hasn't really derailed the legislative agenda. You are absolutely correct that we're hearing a lot less about it. But it may be good for them, which may be good for them. Right. You know, like if this spotlight is a little bit taken off of Congress right now and the ongoing health care negotiations, that in some ways gives these guys a little bit more relaxed shoulders to sort of negotiate and talk and try and figure out if they can get a bill.

You know, the House passed their legislation. The Senate is saying, you know what, we're going to kind of start from scratch and try and figure out what we can pass over here. It's at incredibly early stages, but it's happening. You know, there's an initial working group of 13 Republican senators. They're meeting at least twice a week. Every meeting is tackling or talking about one element of the health care bill, whether it be the tax credits or what they're going to do to Medicaid. And the timeline, you know, most optimistic is that we'll see a bill by 4th of July. Less optimistic is they'd like to have it by 4th of July, less optimistic is they'd like to have it done by the August recess. But as of we sit here today, there is nothing I could point to that would suggest that that work, that legislative work has been derailed by these other distractions. Although it's fair to say that that work was already behind schedule,

especially because they feel they have to do health care first before they get to tax reform. Yes. And all of those things are running up against a deadline of when 2018 comes around, people are going to be paying attention to the elections. And not to even mention they have to raise the debt ceiling. When, Sue? Sometime this summer, right?

Likely later in the summer, yeah. And also, Sue, there's another deadline, right, which is like 2018 in the fiscal year. Sure. So the special budget rules that they're using to pass this health care bill through Congress that lets them get it through with just simple majorities and they're doing that so they can block Democrats from filibustering the bill. There is a widely held belief, although you can get really into some parliamentary weeds here, that the clock on this expires at the end of September, because that is when the fiscal year ends. Fiscal year 2017 ends on September 30th. So you can't use fiscal year 2017 budget bills to do something in fiscal year 18. So they are absolutely running up against the clock. And I still think that health care,

I mean, I do not want to undersell how difficult this is going to be in the Senate. And there's still a possibility that they can't get there. It could fall apart. But I don't think if it falls apart, it's because of the Russia investigation. I think it'll fall apart on its own weight. That's right. And don't forget, the reason why it's so important that you have a budget bill to use is then you only need 51 votes. And even getting 51 votes is going to be really hard.

And I would say this is the really broad dynamic to keep in mind as we're watching the Senate is the sort of two trifectas of power on either side of the Senate. And on one side, that would be Ted Cruz, Mike Lee and Rand Paul, three conservative Republican senators who have a very different view of what this bill should look like. And on the more sort of moderate centrist end is Susan Collins, Bill Cassidy, and Lisa Murkowski. And they're having very different conversations. And why I would say that number three matters is three is the number you lose and when you can no longer pass a health care bill because they can lose two senators and still have Mike Pence make a trip down Pennsylvania Avenue and cast a vote to pass it. So those three power centers, if one of those three walks away from the table, they cannot pass a bill. So one more thing is happening at the end of this week, which is that President Trump is taking the show on the road. And he's going on his first foreign trip as president. He's going to Saudi Arabia, Israel, the Vatican. Then he's going to

a NATO meeting in Brussels and a G7 meeting back in Italy. And while he's in Saudi Arabia, he is supposed to deliver a big speech to the Muslim world. So this is a big trip. It's a huge trip. And giving a big speech to the Muslim world from a president who is widely, globally considered to have based his campaign on a kind of anti-Muslim rhetoric. And this is going to be a very, very watched speech. I will say, though, that the parts of the trip that are going to be harder for him are probably the European parts, because the leaders of Saudi Arabia and Israel are very happy with President Trump. They like him. They have an affinity for him. A big upgrade from Barack Obama in their point of view. I think that the European leaders are even more skeptical and

wary of him this week than they were before. Yeah. And what I would say is that the Middle Eastern leaders are kind of like firing James Comey, whatever. And the European leaders are like, oh, gosh, what does this mean? You know, their concern about about his his commitment to things like the NATO alliance. Are you going is this your first presidential foreign trip? It is my first. It's a great adventure. Yes. You know, it's my first trip. It's also the president's first trip. And he is even more of a homebody than I am. And so it's just going to be really interesting to see how this plays out. And I have to wonder, though, if I'm going to get there and President Trump is going to say something about James Comey or James Comey is going to testify back in Washington and it's all going to blow up and nothing he says in Israel or in Saudi Arabia is going to be relevant at all. I can tell you that I went on many, many foreign trips with Bill Clinton where we would have an impromptu press conference in a hangar in Minsk or someplace like that talking about Whitewater or Paula Jones. Yes, these things follow the president wherever he goes. Yeah, you can't escape.

It's like Linus and the dirt cloud. Yes. And I do remember that many times having the death of the health care bill, having impeachment, having Paula Jones, Whitewater, whatever it is, follow the president to the ends of the earth. So, Tam, I can't help but note that Israel, Saudi Arabia and the Vatican being on this trip. I mean, is there a broader thematic note this White House is trying to hit? I mean, what are they saying the purpose of this trip is? Yeah, and it is on purpose that he is going to these, you know, centers of world religion, of the Abrahamic religions. And he is apparently going to sort of bring this message of unity of the religions, you know, against extremism and against ISIS. He's going to be giving speeches in both Israel and in Saudi Arabia. He is going to meet with the Pope in the

Vatican. That meeting, I think, is more about symbolism than about anything else. It's unlikely. It's more of a photo op. But this was an ambitious trip with where they want to send a signal to the world from this president. I'll be really interested to see how sort of the choreography around his visit at the Vatican and with Pope Francis, because do you remember earlier this year, which seems like many lifetimes ago, it was only this year, the Pope was is one of many people that the president has sort of had a dust up with, and that the Pope had made comments that were seen as being sort of critical of the president and his support to build a wall along the U.S.-Mexico border. And Trump kind of pushed back

on the Pope, and they had sort of a public back and forth. So it'll be really interesting to see sort of what their body language and dynamic is like there. Okay, so before we go to the break, Mara, do you have any advice on how to travel internationally with the president of the United States? Well, you won't be getting any sleep, but I would say any little moment you have to get out of the bubble, take it. Yeah. All right. We need to take a quick break. And when we come back, Carrie Johnson is here. I see her in the other room. She is ready to talk to us about obstruction of justice, impeachment.

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Carrie Johnson, NPR's justice correspondent, is here. Hey, Carrie. Hey. We keep meeting here. I know, as if by chance. As if there were, like, some news or something related to the Justice Department. So you confirmed the reporting about this Comey memo and that it exists. You've covered him a long time. Chances are there are

more memos. Tell us about what you know about this memo and how you learned about it. I talked to two associates of James Comey who described the memos to me as being very detailed. I asked why Comey would have taken notes on his meetings with President Trump, and one of them said to me he was concerned. Yeah. And, you know, Comey has a history of memorializing these kinds of conversations. He did this when he was the deputy attorney general in the George W. Bush years when there was a vigorous discussion within high levels of the Justice Department, FBI, and elsewhere about whether to approve enhanced interrogation techniques against terrorism suspects after 9-11. Those memos later found a home in the New York Times years later, which probably was not a coincidence. Okay, so why now? I mean, I know that's probably a silly question, but why did these memos emerge

now? I can't say exactly why they emerged now. I will note they emerged exactly a week to the day after President Trump fired James Comey by surprise while he was meeting with FBI employees in Los Angeles. And I'm told there were some questions about whether Comey could even fly home on the government plane because he had been fired. Of course, cameras followed him getting onto the plane. He was able to return to his family that night. But it was a very, according to a lot of people in the FBI, a very shabby way to treat somebody who had been a public servant for a long, long time. Carrie, can I ask you a question that I'm curious about? Yeah. We know that these Comey memos exist to some extent. Are they subpoena-able?

I mean, can Congress get those memos from the Justice Department or do they have any kind of proprietary control over them? They are subpoena-able. So the issue is that Jason Chaffetz, the chairman of the House Oversight and Government Reform Committee, a Republican, has already made a demand for all of these materials from the acting director of the FBI. And given the FBI a deadline of next week to produce all of this stuff. And, you know, the question is whether the White House, which might want to assert executive privilege over some of these materials, or the testimony of James Comey, which Jason Chaffetz is also seeking. Remember, we had a whole debate about this a few weeks ago. The White House had initially wanted to prevent Sally Yates from testifying before Congress. Eventually, she went ahead and did so. But we could have a few steps yet before we see James Comey. work for the federal government anymore? Yes, because these relate to conversations, deliberations, and other internal matters of the president. And the president owns the privilege,

and he owns the information in that respect. However... That would be a big step, right? Yeah, well, the political pressure can be so great as to lean on the White House to yield. And that's what happened with Sally Yates. Recall, there was an entire series of events, a news story in the Washington Post that said, Sally Yates wants to testify, but the White House won't let her. And that didn't go over so well on Capitol Hill. And Sally Yates eventually did testify. But the outcry on Capitol Hill to get Comey up there and talking to them is very widespread. It would be hard for the White House to prevent him. Hard, very hard to resist. In fact, Mara, Jason Chaffetz tweeted today, he's scheduled a hearing for James Comey for 930 next week, but he couldn't get ahold of Comey to confirm it. So he just put it out there on Twitter.

Needs his phone number. He said, I hear he's changed his phone number. Doesn't he have staff to do that for him? He's no longer employed, Mara. I'm talking about Jason Chaffetz. Oh, OK, because Comey is no longer employed. Doesn't Jason Chaffetz have somebody who could find Comey's number? I don't know. If the AP was staking out James Comey wearing like a track suit and a ball cap in his yard, I would think Jason Chaffetz could find him. But I think he did, in fact, eventually. OK, so we brought you here, Carrie, to actually talk about sort of the legal side of this. And the phrase that's being tossed around a lot right now is obstruction of justice. So when President Trump, according to this memo,

said, let it go, let Michael, you know, what was the exact phrase? I hope you can let this go. So when he said that, was he obstructing justice? Because there is this ongoing investigation. The simple answer is we don't know enough yet. OK. We don't know enough yet because we don't know how the conversation started. We don't know the exact words and tone of voice President Trump used. In fact, the White House has come out and denied he asked James Comey to stop any investigation

of any kind, says President Trump respects law enforcement and would never do anything like that. However, Comey and his memos, according to the people who have talked with him about them, is quite clear that he felt uncomfortable in this conversation, uncomfortable enough to go leave and write it all down and tell people about it. Left a paper trail. Yeah. So the question is, under the law, there are a bunch of different kinds of obstruction statutes. The question is whether President Trump had bad intent. And based on this one memo alone, this one phrase alone, I hope you can let this go. That may not be enough, according to lawyers I'm talking to. But I talked with a former prosecutor today,

Peter Zeidenberg, who prosecuted a lot of public corruption cases. He said, you can't just look at that one statement on its own. Look at the context. Look at the timeline this year. President Trump talking all over the place about how this Russia investigation is no big deal. Talking about how Michael Flynn is a good man and his friend. Yeah. Allegedly seeking a loyalty oath out of James Comey, which James Comey declined to provide. Then pulling James Comey aside after a meeting in the White House, excusing the vice president and the attorney general and leaning on James Comey allegedly to let this Michael Flynn investigation go. Comey refuses to do that, goes about his business and is fired a couple of weeks later or actually more like three weeks later. And when you take that still like pretty close in close succession. Well, and when you take all of that in context, Peter Zidenberg told me, the evidence is falling out of the trees. But I got to say, there's a big debate about this, because when you're talking about making a criminal case against the President of the United States, the bar should be pretty high, and the intent bar should be pretty high. In fact,

I talked with another defense lawyer today, Robert Luskin, who's defended a lot of really famous people in Washington over the years, including Karl Rove. And Luskin told me, I call prosecutors all the time and tell them to, you know, get off the case of the guy I'm defending. That's not obstruction of justice. You've got to have a lot more than that. So there's also, Carrie, a debate about whether the president of the United States can be prosecuted like in a court of law for something like this. Yeah, there's a big debate among really eggheaded lawyers, including the Justice Department's Office of Legal Counsel. They have said in the past that they don't believe a president can be indicted while in office.

And instead, the remedy should be the other I word, impeachment. And that's where Susan Davis comes in. Yeah. So here's a couple things to keep in mind. I would say it's not even just premature to talk impeachment today. It's probably a little irresponsible. We are so at the beginning of this process. And so I think the lawmakers you've heard using the I word, the first one I heard today was on the floor was Al Green, a Democrat from Texas, who said the president needs to be impeached. Maxine Waters, Maxine Waters is previously a Democrat from California. Maxine Waters has also used the I word. I would say leaders in the party are much

more reluctant to just throw out impeachment. You know, House Minority Leader Nancy Pelosi and Senate Minority Leader Chuck Schumer. You have to respect the process. You have to let it play out. The one thing I keep saying to people when they ask me about what's going on on the Hill and impeachment and all these things is that these investigations are still in the fact finding stage. You know, they have just issued the Senate Intelligence Committee. That's probably the lead investigation up here have just issued, the Senate Intelligence Committee, that's probably the lead investigation up here, has just issued subpoenas for Michael Flynn. The House Oversight Committee has just asked Comey to come up and testify. So these questions of impeachment and

who committed a crime or could he be removed from office, that is so far down the road. And I think from the political standpoint, I've talked to Democrats who say, we're fine with this process going very slowly. You know, this is something that is probably at the rate that Congress moves and based on past congressional investigations, is going to dominate much of the rest of 2017. And from just a purely calculating political standpoint, most Democrats will look at the 28 midterms and say, I'm okay with that. You know, the other thing that's so interesting about this impeachment talk, which is absolutely widespread among the Democratic base, and it's really magical thinking. I think it's delusion to think that Trump is going to be impeached by a Republican

Congress. Very good point. break-in happened in 1972, and Nixon was overwhelmingly re-elected, and then it didn't. But the point that Sue is making, which is really important, and Carrie is making, that, look, the prosecutorial process, the legal process is long and grinding, and the process itself is going to take a toll on the administration, regardless if we get to this cataclysmic conclusion of impeachment or not. Sue? I would say one thing that I think is very much of the conversation in all of this, particularly in the conversations I'm having with members of Congress and staff, is that there's talk of impeachment in the investigations, but then there also go back to the president who is

angry and impetuous when it comes to his tweets and can make knee jerk decisions. And the president is feel so unpredictable at every turn. There's just a volatility to this that you just feel like you wake up every day and you don't know what his Twitter feed is going to bring. And so the members I've talked to and the staff I've talked to says they think anything is possible at this point. Since we've already brought up the I word, Carrie, what grounds could someone be impeached on? How does that work? The Constitution says treason, high crimes are misdemeanors and they're not really defined. They're defined by Congress. Yeah. All right. So you don't actually have to commit a legal crime to be impeached. No, you can. No. And as people have noted in the last two days of premature talk about impeachment, obstruction of justice factored into both the Richard Nixon articles of impeachment and the Bill Clinton articles of impeachment.

So when you're talking about this anything is possible feeling in Washington, I spent all of yesterday until this Comey news broke doing a piece for All Things Considered about the presumption of regularity and how under the law, the president is presumed to act legally and fulfill the duties of his office, except Donald Trump and the travel ban have upended all of this in the court. So there's no presumption of regularity anywhere anymore. So that's a legal term, but I feel like maybe we should make that our goal for 2018, a presumption of regularity. Hey, Carrie, what is up with the search for a new FBI director? Well, there's been a parade of people in and out. Last weekend, eight people went into the Justice Department on Saturday. Current FBI officials, Adam Lee, Bill Avenina, who has an intelligence role now, you know, sue people from your lane. Texas Senator John Cornyn, who later took himself out of the running.

Mike Rogers, a former member of Congress and a former FBI agent, who's the pick of the FBI Agents Association. Even though some people on the Hill have said they want nobody with any electoral political experience to have that job because it's too sensitive now. And there were a couple of judges and Fran Townsend, who had a Justice Department role, but previously and now is known as a television commentator. Yeah, she was a Homeland Security advisor for George W. Bush, played a role in the Janet Reno Justice Department in the Clinton years, too. Is there any, you talk to a lot of people inside main justice. Does anybody have, like, is there an inside favorite? Is there a sense that somebody's ahead of the pack versus the others? I'm not willing to go that far right now, in part because there's a big debate over what kind of person is right for this job at this moment. This is such a politically sensitive time. The need for independence, and as Lindsey Graham has said, courage is great in this moment. This is such a politically sensitive time. The need for independence and,

as Lindsey Graham has said, courage is great in this position. And we have reports that the White House and Jeff Sessions were leaning on John Cornyn to do it, which his own colleagues were uncomfortable with. His colleagues were leaning on him to not do it. Which to me was one of the most fascinating behind the scenes political churns in Washington this week is that essentially Republican senators made clear to John Cornyn that he should take himself out of the running. And that included Senate Majority Leader Mitch McConnell. Because they were worried about his seat in Texas? No, because I think that Mitch McConnell and I would also include in this Lindsey Graham, the Republican senator from South Carolina, who is one of the Republicans leading the Russia investigation, have made

very clear publicly, and I believe they believe this, that now is not the time to put a politician at the head of the FBI, and that they believe that the FBI investigation needs legitimacy. Congressional investigations need legitimacy. And I think they very much like and respect John Cornyn. I don't think it was at all a matter of qualifications or personality or being afraid of losing his seat. I just think they believe that if you were to put a Republican senator, particularly one who has been a very vocal defender of the Trump administration at the top of the FBI, that it would just taint the investigation and could potentially have a bigger blowback on the Republican Party overall.

Okay, girls, how about former Senator Joe Lieberman, who Sean Spicer has said is interviewing with the president today for that job? If Donald Trump wants someone to be loyal to him, Joe Lieberman is not where you would go. Do you remember Joe Lieberman during the campaign when he was on the ticket with Al Gore criticizing Bill Clinton? I think Joe Lieberman is too much of an iconoclast, I think. He might seem perfect for that reason, independent, but certainly not someone that Trump could rely on. I have an incredibly basic and

maybe dumb question. Why would John Cornyn give up his seat to be the FBI director? Why would he want to do that? It's a 10-year job. Well, I have an answer. It might be a little boring, but I mean, John Cornyn is the number two Republican. He's the Senate majority whip, but that is a leadership position that's term limited. So he can't do that job after 2018. And there is, in terms of aspirations and climbing the ladder, I think he would like to be Senate majority leader one day, but Mitch McConnell has, whose term is not up until until 2020 has also sort of suggested that he might run for reelection in 2020. And I think there is a view that as long as Mitch McConnell is in the Senate, he will be the majority leader. And these guys are ambitious. And if you don't see a way up the ladder, sometimes you look for a way out. who took their name out before their name was ever officially in is Trey Gowdy, the South Carolina

congressman who was definitely a popular suggestion on the internet among conservatives because he had led the Benghazi investigation in the House. Well, perhaps more relevant than the Benghazi investigation, he actually was an assistant U.S. attorney. He was a federal prosecutor and he's a legit guy in that respect. He actually has gone out of his way on some occasions to try to not get in the way of the FBI or federal criminal prosecutors in some of the work he's done on the Hill. Carrie, one other person on that list is Andrew McCabe, the acting FBI director. Yeah, he's a longtime agent. He has a background in New York. He was the leader of the Washington

field office of the FBI, which is one of the biggest outposts in the whole country. Smart guy, solid, has a law degree, has gotten crosswise with Iowa Senator Charles Grassley, a Republican, because McCabe's wife actually ran for political office in Virginia as a Democrat. Grassley was very uncomfortable with that whole process, thought McCabe should have recused himself entirely from the Hillary Clinton email investigation. And McCabe is being investigated by the inspector general at the Justice Department. And Grassley has been asking a lot of questions on that basis alone. He might be an uncomfortable pick for the Trump administration to lead the FBI permanently. But, you know, agents inside the FBI, I'm hearing from

some of them, say the place is in turmoil right now. And it may make sense for morale to choose somebody from the ranks of the Bureau. I don't know that they're going to go that way at the White House, though. The president said that the place was in turmoil and that's why he had to get rid of Comey. I think it was the other way around, according to the agents in the building with whom I'm speaking. That's good to know. Oh, by the way, didn't the president say that we'd have an FBI director by Friday? I wonder if we're going to get one. Probably right around the time we walk out of the studio knowing our luck. Carrie, while we have you here, there has been other news in the last week, broadly speaking, in the last seven days, and it comes from the Justice Department. It's

been totally overshadowed by all of this. But Attorney General Jeff Sessions ordered federal prosecutors to, quote, charge and pursue the most serious, readily provable offense when it comes to drug crimes, other crimes. This is significant or potentially significant. It's a reversal of policy. It's a big shift from what Eric Holder and Loretta Lynch, Obama's attorney generals, had spent a lot of time doing. In fact, in 2013, Eric Holder gave a really big speech in San Francisco announcing that he wanted to be smart on crime instead of tough on crime. And largely, he focused those efforts on drug criminals and on rehabilitation and on alternatives to lengthy mandatory prison sentences for people who,

it turns out, disproportionately are people of color in the system for these kinds of offenses. So now, in theory, mandatory minimums would be triggered more often. In theory, prosecutors would take all of that into account when they decide which kind of charges to file against somebody. And that's where mandatory minimums. We do know they were sought less often than in the George W. Bush years, but we don't know how much less often. And it's worth noting that Obama did leave office with a reduction in the federal prison population the first time that's happened since the early 1980s. But a lot of those reductions in the federal prison population are because the Sentencing Commission changed the laws and allowed thousands, tens of thousands of people to leave prison early who had been convicted of drug crimes. And the Sentencing Commission is a federal commission?

It's a panel that sets guidelines for federal judges to follow when they punish criminal offenders. And the people are confirmed by the Senate who sit on the panel. They're bipartisan judges, scholars, former prosecutors and the like, defense lawyers, too. And there's something of a had been something of a bipartisan push to do criminal justice reform to maybe get rid of some of those mandatory minimums. You know, I thought so. I spent about two years covering it on the Hill and then nothing happened. So this week, in fact, Rand Paul and Patrick Leahy in the Senate, a Republican and a Democrat, have reintroduced some sentencing reform legislation. I don't know where that's going to go with Jeff Sessions sitting at the top of the Justice Department. And Sue, in the Department of Elections Have Consequences and the Trump administration,

while embroiled in controversy, is also actually doing stuff. Oh, yeah. You sent around an email about immigration enforcement today. Yeah, I thought this was really interesting. So Immigrations and Customs Enforcement announced on their website that in the first 100 days of the Trump administration that they've arrested 41,000 people who are believed to be living in the U.S. illegally. And that's interesting because it's an almost 40 percent increase in arrests over the same period last year. They said in the release that had a lot of detailed information about it that 75 percent of the people they've arrested have been convicted criminals and that they're averaging about 400 arrests every single day. It also noted very, a very interesting line at the bottom also noted

that DHS no longer makes exemptions for any class of individuals, which I interpret that to mean people who are here illegally, but have not committed any crimes. And they said that non-criminal arrests have more than doubled in the first 100 days of this year compared to last year. Well, that's, oh, sorry. That's really interesting since the White House said it was going to focus on criminals. Yeah, I mean, that was the promise. I guess they're saying 75% of them are, but isn't the definition of criminal very, very broad? Yeah, I mean, in ISIS language, they described it as non-criminal arrests. So that number is also up. And so, yes, I think it also goes to the point where I was saying earlier about how the question about has the congressional agenda been derailed and all of this Russian investigation?

No, I don't believe it has. And this is also a good reminder that the administration is still doing many things on many fronts, even though we may not be hearing as much about it. And there are many things they can do on their own without Congress, like these kinds of immigration arrests, like trade deals. There's a lot of things they can do, even if Congress isn't passing laws. The president on his own has a ton of power when it comes to protecting national security in the border. And Congress has delegated the president, any president, including Donald Trump, even more power when it comes to immigration. So this is one of the few areas in which they can act with a fairly free reign. And Sue sounds like they're doing so. And immigration and trade, the two things where presidents

have a lot of power, that happens to be the two core issues for his base. OK, to end on a different note here, instead of can't let it go, we want to say thank you to all of you who wrote in with what you couldn't let go this week,

which was the names of your beloved local convenience stores, which is, Mara is looking at me like, what are you talking about? Like Wawa and AMPM and 7-Eleven. And there was a long discussion of this on the pod last week. Scott Detrow brought it up. Lots of love for Buc-ee's in Texas, Cumbie's in New England, UDF in Ohio, the 7-Elevens of Hawaii, Come and Go in Iowa, and many more. So, guys, thank you for writing in. Tam, I don't think we can end the podcast.

It would be irresponsible of us to not end and recognize the other controversy in Washington this week. Do tell. And it involved ducks. Yay, duckies! the other controversy in Washington this week. Do tell. And it involved ducks. Yay, duckies! So this kind of exploded a little bit on Twitter and online. And I think if you've ever spent any time on the internet, I think 30% of the internet is just consumed by cute animals.

And one congressman dared to go to the heart of the Internet in that Congressman Mark Walker, he is a Republican. He's the chair of the Republican Study Committee, which is a faction of conservatives in the House and particularly fiscal conservatives. And he tweeted a picture of the reflecting pool outside the Capitol that has a very adorable little white ramp coming up from the street and into the reflecting pool. And it says very clearly on it, duck ramp, please do not feed the ducks. And he tweeted it and it said, if it looks like a duck and walks like a duck, it must be government waste. Which led to torching, I would assume. So it turns out there's an adorable duck family nearby the Capitol. And there was concerns that the little baby ducklings couldn't get in

and out of the reflecting pool. So the architect of the Capitol and many offices on Capitol Hill worked together to construct these duck ramps. But the congressman taking on the duck ramps' government waste unleashed and unfurled so much cute animal internet rage at his direction. He got over 3,000 replies to his tweet. Replies. Replies. Just people taking him down for how dare you attack these beautiful, precious little ducklings. So do not attack.

I mean, people already don't even like members of Congress and don't like double down and attack cute animals. Here's something to stick into our other conversation. I just got a tweet that Wawa is coming to D.C. Wow. The first one. Alert Scott Detrow. Okay, we are going to end it there today. And as we said, no roundup tomorrow, but we may be back with an episode on Friday. It is a very busy time around here and we have to feed the radio, too. Make sure you're keeping up with us on Facebook, Twitter and Instagram at NPR Politics. And listen to Up First every weekday for about 10 minutes of the biggest news first thing in the morning. I'm Tamara Keith. I cover the White House for NPR.

I'm Susan Davis. I cover Congress and ducks. And I'm Mara Liason, national political correspondent, and I always try to keep my ducks in a row. And thank you, Carrie, for joining us once again. My pleasure. And thanks for listening to the NPR Politics Podcast. © transcript Emily Beynon