PELOSI JOINS THE
>>> WHAT IT SEEMS TO ME YOU’RE
ASKING DOUSE IS PUT THE TEN TON
WEIGHT ON THE SKALSSCALES BETWEE
PRESIDENT AND CONGRESS AND TO
MAKE IT IMPOSSIBLE FOR CONGRESS
TO PERFORM OVERSIGHT AND TO
CARRY OUT ITS FUNCTIONS WHERE
THE PRESIDENT IS CONCERNED.
>> YOU ARGUE THERE’S NO
DEMONSTRATED NEED, NO
SUBSTANTIAL LEGISLATIVE PURPOSE.
HOUSE IS BEFORE US, AND I’M SURE
WE’RE GOING TO HEAR FROM THEM,
THAT THERE IS SUBSTANTIAL
LEGISLATIVE NEED.
WHY SHOULD WE NOT DEFER TO THE
HOUSE’S VIEWS ABOUT ITS OWN
LEGISLATIVE PURPOSES?
>> THE JOB OF THE HOUSE AND
SENATE, IN PART, AS THE
PRESIDENT, IS POLITICS.
THAT DOESN’T BOTHER ME.
BUT THE CLINTON V. JONES
INFORMATION DOES BOTHER ME.
AND THE FACT THAT WHAT I HOLD
TODAY WILL ALSO APPLY TO A
FUTURE SENATOR McCARTHY ASKING
ME FUTURE FRANKLIN ROOSEVELT OR
HARRY TRUMAN EXACTLY THE SAME
QUESTIONS, THAT BOTHERS ME.
SO WHAT I DO?
>> THE PRESIDENT GOT HIS DAY IN
THE SUPREME COURT YESTERDAY AS
HIS LAWYERS ARGUED TO KEEP FROM
DISCLOSING HIS FINANCIAL RECORDS
TO HOUSE COMMITTEES AND A NEW
YORK GRAND JURY.
JOINING US NOW, NBC NEWS AND MSNBC LAW ANALYSTS AND EDITOR
MSNBC LAW ANALYSTS AND EDITOR
AND CHIEF OF LAW FAIR BENJAMIN
WHIT
WITTES.
AND BARBARA McQUADE.
THANK YOU BOTH FOR BEING WITH
US.
>> BEN, WORRIED ABOUT HIS 0%
REVIEW, HE’S DRAGGED IN A
BOOKSHELF IN THAT BLUE MASS.
SO CONGRATULATIONS.
>> THAT LOOKS GOOD.
>> CONGRATULATIONS.
>> ROOM RAIDER, EAT YOUR HEART
OUT.
I -- I REVEL -- I WAS TOLD
YESTERDAY THAT THE ONLY OTHER
PERSON WHO’D ONLY EVER GOT ANN
ZERO FROM ROOM RAIDER WAS MITCH
McCONNELL.
SO I HAVE FINALLY FOUND
SOMETHING THAT I HAVE IN COMMON
WITH MITCH McCONNELL.
>> THERE YOU GO.
WELL, LET’S TALK ABOUT JUST
ABSOLUTE FASCINATING CASES, THE
CASES BEFORE THE SUPREME COURT
YESTERDAY.
AND QUITE AN INTERESTING
BREAKDOWN IF YOU LOOK AT WHAT
JUSTICE BREYER SAID, IT
CERTAINLY APPEARS THAT THIS
COURT IS NOT GOING TO LEAN ON
THE PRESIDENTS OF U.S. V. NIXON
OR CLINTON V. JONES IN THIS
WHICH WERE DECIDED 9-0 AND
PRETTY CLEAR CUT.
BUT AS YOU DESCRIBED YESTERDAY
ON YOUR LAW FAIR PODCAST, THE
SUPREME COURT DOES NOT SEEM TO
BE INTERESTED IN FOLLOWING THOSE
PRECEDENTS.
>> I HAVE TO SAY UNDER THE
RELEVANT PRECEDENTS WHICH ARE
NOT JUST THOSE, BUT ALSO A
SERIES OF CASES INVOLVING THE
SCOPE OF PROPER CONGRESSIONAL
OVERSIGHT, THIS IS NOT A HARD
CASE OR NEITHER OF THESE IS A
HARD CASE.
AND IN ORDER TO MAKE LAW THAT
WOULD BE MORE FAVORABLE TO THE
PRESIDENT HERE, THE SUPREME
COURT IS REALLY GOING TO HAVE
TO, YOU KNOW, KIND OF BOB AND
WEAVE BETWEEN SOME PRETTY STRONG
PRECEDENTS THAT ALL SEEM TO CUT
IN THE OTHER DIRECTION, FRANKLY.
THAT SAID, I WAS SURPRISED OR
MAYBE I SHOULDN’T HAVE BEEN, BUT
I WAS ONCE AGAIN SURPRISED BY
THE FACT THAT THE SUPREME COURT
SEEMS TO BE PRETTY POLITICAL.
AND, YOU KNOW, YESTERDAY SEVERAL
OF THE JUSTICES SEEMED QUITE
ENTRANCED BY THE IDEA THAT THEY
SHOULD DO THAT AND THEY
SHOULD -- AND, BY THE WAY, NOT
JUST THE CONSERVATIVE JUSTICES,
AS THE CLIP YOU SHOWED FROM
JUSTICE BREYER SUGGESTS.
THERE SEEMED TO BE AT LEAST SOME
INTEREST IN PROTECTING THE
PRESIDENCY FROM WHAT SEVERAL OF
THE JUSTICES CALLED HARASSMENT
BY CONGRESS.
>> BARBARA McQUADE, YOU’RE
WRITING ABOUT THIS AND LOOKING
AT A POTENTIAL ATTEMPT TO SLOW
WALK THIS TO GET PAST THE
ELECTIONS.
WHY WOULD THE PRESIDENT WANT TO
DO THAT?
WHAT DOES THAT INDICATE MIGHT BE
HIDDEN?
>> YOU KNOW, ONE OF THE
ARGUMENTS THAT TRUMP’S LAWYERS
RAISED YESTERDAY THAT ACTUALLY
SEEMED TO HAVE SOME MERIT TO
SOME OF THE JUSTICES WAS THIS
MIDDLE GROUND, THIS IDEA THAT
EVEN IF THESE DOCUMENTS NEED TO
BE PRODUCED, THEY CAN ONLY BE
PRODUCED AFTER EITHER THE GRAND
JURY OR THE CONGRESSIONAL
COMMITTEES SHOW SOME KIND OF
SPECIALIZED NEED OR HEIGHTENED
STANDARD.
THAT IS, THAT THESE DOCUMENTS
ARE ESSENTIAL AND THAT THE ONLY
WAY THAT THEY CAN ACHIEVE THEIR
GOAL IS BY LOOKING AT THESE
DOCUMENTS THAT THE PRESIDENT’S
DOCUMENTS.
AND I THINK THE RESULT OF THAT
WOULD BE TO SEND IT BACK TO THE
LOWER COURTS FOR ANOTHER ROUND
OF BRIEFING, WORK ITS WAY BACK
UP THROUGH THE APPELLATE COURTS
WHICH COULD TAKE MONTHS.
SO THIS COULD BE A STRATEGY BY
PRESIDENT TRUMP, EVEN IF HE
ULTIMATELY HAS TO GIVE UP THE
DOCUMENTS OR SOME PORTION OF THE
DOCUMENTS, THAT IT WOULD GET US
WELL PAST NOVEMBER.
AND SO THESE DOCUMENTS COULD NOT
BE USED IN ANY WAY AGAINST HIM
IN THE ELECTION.
>> SO I HAD A FLASHBACK, BEN, TO
MY DAYS AT THE UNIVERSITY OF
FLORIDA LAW SCHOOL AND BEING
PEPPERED WITH QUESTIONS ABOUT MY
LAW TEACHER.
SO I’M GOING TO JUST DEFER TO
YOU AND SINCE YOU’RE WITH ME YOU
CAN ANSWER THIS QUESTION.
WHAT IS YOUR RESPONSE TO JUSTICE
BREYER WHO SAYS WHAT WE REQUIRE
OF DONALD TRUMP NOW FROM THIS CONGRESS MAY BE REQUIRED OF A
CONGRESS MAY BE REQUIRED OF A
FUTURE FDR WHEN A SENATOR
McCARTHY DEMANDS PERSONAL OR
EMBARRASSING INFORMATION FROM
HIM?
WHAT’S YOUR ARGUMENT TO -- TO
BRUSH THAT ASIDE AND TELL
JUSTICE BREYER THAT THIS IS NOT
GOING TO BE BAD PRECEDENT FOR
FUTURE PRESIDENTS?
>> WELL, FIRST OF ALL, MY FIRST
REACTION TO HIM IS, YEAH, AND
THAT IS EXACTLY, YOU KNOW, THE
COURT IN SOME OF THE McCARTHY
ERA CASES DID SET OUT A VERY
CURSORY KIND OF LIMITATION ON
THE ABILITY TO -- OF CONGRESS TO
SUBPOENA THINGS SIMPLY FOR
PURPOSES OF EXPOSURE.
BUT -- BUT BY AND LARGE, YES,
THE ANSWER IS THAT THE COURT HAS
ALWAYS ACKNOWLEDGED THAT
CONGRESS HAS AN EXCEPTIONALLY
BROAD INVESTIGATIVE POWER IN ITS
LEGISLATIVE ACTIVITIES, AND THAT
IS POTENTIALLY SUBJECT TO ABUSE.
AND EVERY RECENT PAST PRESIDENT
IN OUR ADULT LIFETIMES OR MAYBE
EVEN LONGER THAN THAT, WOULD BE
SHOCKED TO KNOW THAT CONGRESS --
THAT THE COURT IS THERE TO
PROTECT THEM AGAINST HARASSMENT
BY CONGRESS.
I MEAN, DID GEORGE W. BUSH NOT
FEEL MA HAWAII
FEEL HARASSED BY CONGRESS AFTER
2006?
DID BILL CLINTON NOT FEEL
HARASSED BY THE REPUBLICAN
CONGRESS AFTER YOU GUYS TOOK
OVER?
DID BARACK OBAMA NOT -- I MEAN,
YOU KNOW, THE IDEA THAT CONGRESS
HARASSES THE PRESIDENT,
INCLUDING ABOUT HIS PERSONAL
LIFE, I HAD THOUGHT THAT WAS
KIND OF THE BREAD AND BUTTER OF
AMERICAN POLITICS.
NOW, I WILL SAY THAT, YOU KNOW,
THEY’RE IN A HIGHLY POLARIZED
ENVIRONMENT LIKE THE ONE THAT WE
HAVE, IT IS NOT CRAZY TO WORRY
ABOUT THE CONCERN THAT BREYER
OUTLINES.
BUT, I DO THINK IT’S A LITTLE
BIT LATE FOR THAT.
BECAUSE THE SUPREME COURT RULED
NINE TO NOTHING AND BREYER, BY
THE WAY, THOUGH HE WROTE A
CONCURNS,CON
CONCURRENCE WAS PART OF THAT
RULING THAT PAULA JONES COULD
BRING A CASE AGAINST BILL
CLINTON.
AND IN THAT CASE THE PRESIDENT
WAS NOT IMMUNIZED FROM THAT CASE
AND THEREFORE WOULD HAVE TO
PRODUCE ANY KINDS OF DOCUMENTS
AND EVEN SIT FOR A DEPOSITION.
AND IF THAT -- IF A SINGLE
CITIZEN CAN DRAG THE PRESIDENT
INTO COURT AND MAKE HIM ANSWER
QUESTIONS AND PRODUCE DOCUMENTS,
IT SEEMS A BIT ODD TO SUGGEST
THAT THE CONGRESS OF THE UNITED
STATES CANNOT.
>> IT IS ODD.
AND, OF COURSE, MY PERSONAL
BELIEF IS THAT THIS PRESIDENCY
IS WINDING DOWN AND SO WHAT THE
COURT DECIDES PROBABLY, YOU
KNOW, MAYBE DONALD TRUMP WILL BE
ABLE TO RUN OUT THE CLOCK.
BUT -- BUT HAVING A PRESIDENT
JUST DECIDE ON HIS OWN THAT HE’S
NOT GOING TO COMPLY WITH ANY
OVERSIGHT REQUESTS FROM CONGRESS
CERTAINLY DOES SET A CHILLING
PRECEDENT.
SO, BARBARA, LET’S TALK ABOUT
BREAKING NEWS LAST NIGHT.
FASCINATING NEWS COMING FROM THE
FLYNN CASE.
JUDGE SULLIVAN SAID HE WAS OPEN
TO HEARING ARGUMENTS FROM
OTHERS, FROM THIRD PARTIES,
ARGUING AGAINST THE JUSTICE
DEPARTMENT’S DISMISSAL OF
CHARGES AGAINST GENERAL FLYNN.
WHAT’S IT MEAN?
>> YEAH, SO THERE IS A LOCAL RULE IN THE DISTRICT OF COLUMBIA
RULE IN THE DISTRICT OF COLUMBIA
THAT SAYS THATSAYS A MEEK CUSS B
CAN BE FILED.
THAT IS FRIENDS OF THE COURT,
GROUPS OF LAWYERS CHO WHO CAN
FILE BRIEFS.
I THINK THIS IS A GREAT DECISION
BY JUDGE SULLIVAN, BECAUSE IT’S
AN UNUSUAL SCENARIO WHERE YOU
HAVE BOTH PARTIES SEEKING THE
SAME RELIEF.
THE GOVERNMENT HAS FILED A
MOTION TO DISMISS.
MOST CERTAINLY FLYNN’S LAWYERS
ARE NOT GOING TO OPPOSE THAT
MOTION.
AND SO THE JUDGE DOES NOT HAVE
THE BENEFIT OF HEARING THE OTHER
SIDE OF THAT ARGUMENT.
CERTAINLY THERE HAS BEEN A LOT OF OUTCRY IN THE PUBLIC THAT
OF OUTCRY IN THE PUBLIC THAT
THIS IS HIGHLY UNUSUAL AND EVEN
DIPLOMATIC
POLITICIZED.
AND SO BY ALLOWING EMEKE I CAN
TO FILE BRIEFS, THEY CAN GET THE
OTHER SIDE.
THESE ARE COMMON IN THE SUPREME
COURT, BUT PRETTY RARE AT THE
DISTRICT COURT LEVEL USUALLY
BECAUSE THE ISSUES ARE MORE FACT
BASED AND THAT LEGALLY BASED.
BUT THEY’RE INTENDED TO HELP THE
COURT.
SO HE HAS SAID HE WILL ISSUE A
SCHEDULING ORDER SO THAT HE IS
NOT INUNDATED WITH BRIEFS.
BUT BRIEFS THAT HE FINDS HELPFUL
TO CONSIDER THE ISSUES IN THIS
CASE SO THAT HE CAN MAKE A
DECISION.
BECAUSE THE BALL REALLY IS VERY
MUCH IN HIS COURT.
JUDGE SULLIVAN IS THE ONE WHO
GETS TO DECIDE WHETHER THIS CASE
IS DISMISSED OR GOES FORWARD.
>> BARBARA McQUADE AND BENJAMIN
WITTES, THANK YOU BOTH VERY MUCH
FOR BEING ON THIS MORNING.
>>> COMING UP, U.S. OFFICIALS
ARE ACCUSING CHINA OF ACTIONS
THAT SOME MIGHT CONSIDER AN
ATTACK ON AMERICAN PUBLIC
HEALTH.
SPECIFICALLY HACKERS TARGETING
UNIVERSITIES AND PHARMACEUTICAL
FIRMS WORKING ON A CORONAVIRUS
VACCINE.
THAT NEW REPORT IS NEXT.
>>> PLUS, HOUSE SPEAKER NANCY
PELOSI WILL BE OUR GUEST AT THE
TOP OF THE HOUR.
YOU’RE WATCHING "MORNING JOE." WE’LL BE RIGHT BACK.
YOU’RE WATCHING "MORNING JOE."
YOU’RE WATCHING "MORNING JOE." WE’LL BE RIGHT BACK.