August 2, 2019

BUZZFLASH INTERVIEW

BuzzFlash:  We had interviewed you three times between 2000 - 2010. Let's talk about the current moment. John, let me first ask you, can you clarify the difference of the role of the Independent Counsel during the Clinton administration, and the Special Counsel in the Trump administration?

John Dean:  The independent Consul who investigated Bill Clinton was Kenneth Starr, a former federal appellate judge who had left the bench long before he undertook the assignment. He was appointed by a panel of judges under a statute that was an outgrowth of Watergate called the Independent Counsel law.

Kenneth Starr was appointed by a panel of judges that operated under the Independent Counsel Statute. That statute required not only criminal prosecutions, but a referral to congress of any impeachable offenses. The range of the investigation of an Independent Counsel -- the highest it could go of course was the president of the United States -- but also included all senior appointed officers, cabinet officers, independent agency people and other high-level appointees. The Special Counsel has investigated the Trump administration, starting with the president, is really a creature of the failure of the Independent Counsel Law. The Independent Counsel Law ended up ensnaring both Republicans and Democrats sufficiently that Congress did not renew the statute, which had a sunset provision; however, the attorney general has independent authority to create a special prosecutor also known as a Special Counsel.

The Watergate Special Prosecutor was created by a regulation of the attorney general and was not under a statutory provision, but just a regulation of the attorney general's office to create such an independent investigator. When the independent Counsel statute expired, the Department of Justice created the new regulations that were in existence when Trump came into office to appoint a Special Counsel if it was needed, And it's needed in the case of a conflict of interest of the high-level officials at the Department of Justice because they're connected with a campaign or for any other reason that they feel it's appropriate, and that's what happened here. The deputy attorney general felt it was appropriate to create a special counsel to investigate the Russian influence and any coordination or relationship between the Trump campaign and the work of the Russians, and that's how we got the Mueller appointment.

BuzzFlash:  Some people wonder, and I think this has to do with the difference between the Independent Counsel statute, which expired at the end of the Clinton administration, if I recall?

John Dean:  Actually, Clinton favored renewing it during his presidency much to his later chagrin. It did empower Ken Starr who investigated Clinton. When his work was finished, Congress let the law fade into the sunset as well.

BuzzFlash:  Some analysts draw a distinction that Starr recommended impeachment, whereas Mueller left it up to Congress. Does the difference between the Independent Counsel Law and Mueller working as a Special Counsel within the DOJ explain that difference?

John Dean:  Not really. There was some debate as to whether Starr and the Independent Counsel really had that authority, for example, the general ethics advisor to Independent Counsel Starr was Sam Dash, who had been the chief counsel of the senate Watergate committee, and he resigned over Starr's activities believing a prosecutor doesn't have that power to recommend anything to Congress, and Starr took too broad a reading of the Independent Counsel law.

With the Special Counsel regulations it's not really spelled out that they can recommend impeachment or not. The Special Counsel is only charged under the regulations of the Department of Justice to report any decisions to prosecute or not to prosecute anybody he (or she) has investigated, and then it's up to the attorney general whether to send that on to the Congress. Well, as we know, what happened here is Attorney General Barr gave his spin on the findings of the Special Counsel, Mueller, and then some weeks later released a highly-redacted version of the Special Counsel's report on why he decided or decided against prosecuting any of the people related to his investigation, and that is now sitting before the Congress.

I testified before the House Judiciary Committee who had started their hearings with the information from the Special Counsel's report. It read to me like the so-called “Road Map” that Leon Jaworski, the Watergate Special Prosecutor, forwarded at the request of the grand jury to the Congress so that they could understand what they had found relating to Nixon's activities, and it was just a bare minimal bare bones report of what the grand jury had found. Mueller's report is much fuller than the so-called Watergate “Road Map” that was sent to the House Judiciary Committee and more explanatory, but it is not dissimilar in many regards to the Watergate “Road Map.”

BuzzFlash:  Now, you did testify before Congress a few weeks ago. What is your stance on the evidence as thus far disclosed. Of course, in regards to the underlying grand jury information — which was not provided to Congress — House Judiciary Chairman Nadler has filed a writ in court to obtain that information. Do you feel that even without the underlying redacted information that there is enough in the Mueller report to begin articles of impeachment?

John Dean:  Not only do I feel there's sufficient evidence that already has been submitted to the House Judiciary Committee, I know that the House Judiciary Committee itself believes it is proceeding with an impeachment investigation. When it filed its request with the federal district court, approaching the chief judge ,who has jurisdiction over the grand juries for the District of Columbia, it happens to be the same judge who released to the public very recently the Watergate “Road Map,” which is grand jury information. that had been sealed and never been released by the Congress other than that which came up in the Nixon reports about the Bill of Impeachment that was drafted related to his crimes. But when Nadler went to court, he told the court, "We are currently undertaking an inquiry regarding impeachment." He said there have been several Bills of Impeachment introduced by members that have been referred to his committee, and he said, "There is no constitutional trigger to start an impeachment."

That they're looking not only at what they're doing, but what other committees are doing and they're very much in an impeachment inquiry mode, so they are asking the court for the grand jury information with a strengthened position on the rules that withhold grand jury information. It's rule 6e of the federal rules of criminal procedure. Ironically, it's the Judiciary Committee of the House and the Senate who transform those rules into law.

They've never written a specific exception in the rules that they are obliged to receive the grand jury information because they don't believe they need it. Prior court rulings in the District of Columbia have held that an impeachment proceeding or the preparation of an impeachment proceeding is a judicial proceeding. There is an exception in the federal rules of criminal procedure rule 6e that provides that information can be given to an entity that is undertaking either a judicial proceeding or in preparation of judicial proceedings.

They've gone to court under that exception, the 6e, to get the information that had been redacted from the Mueller report. I think that unless the current sitting judges try to overthrow all of the existing precedent the Judiciary Committee's going to get that information.

BuzzFlash: You obviously have an intimate knowledge of the three articles of impeachment that were drawn up against Nixon. There was never an impeachment trial because he resigned first. Do you feel like the Mueller report, from what you can read in the redacted version, merits articles of impeachment?

John Dean:  Very much so. You can draw parallels to the Nixon impeachment Article 1. Many in the Congress saw Article 2 against Nixon was so closely related to Article 1 that there shouldn't have been a separate article, but Article 1 really addressed obstruction of justice, and that's been pretty universally recognized as an impeachable crime by a president. That was the thrust of the impeachment proceedings against Bill Clinton based on his false or perjurious statement in a civil deposition relating to his knowledge of the affair with Monica Lewinsky. He had misrepresented in a civil deposition. He didn't tell the truth about that, and that also is considered obstruction of justice. A very common charge in criminal proceedings is when someone does commit perjury they're also charged with obstruction of justice because it is a form of obstruction of justice to give a false or perjurious statement.

Article 1 against Nixon was an obstruction of justice iteration of his activities that the Congress thought was obstruction of justice. Article 2 dealt with his abuse of powers, which were somewhat broader than obstruction of justice. For example, his misuse of the Internal Revenue Service to go after his enemies. And then Article 3 against Nixon related to his obstruction of the impeachment proceeding itself where he refused to turn over evidence that was requested by the House Judiciary Committee. We're seeing parallels today, and Trump's actually gone far further than Nixon went in his refusal to honor any subpoenas issued by the congress in just a fairly blatant effort to obstruct any investigations of him by the house of representatives.

That parallels directly with Article 3 against Nixon.

BuzzFlash: We're at the point where we saw the former FBI director Mueller testify, and the press kind of panned that based on what they'd call “optics. He wasn't animated, and he was very taciturn. Was his testimony even necessary? Doesn't the document speak for itself?

John Dean: The “optics” of Mueller's testimony are totally irrelevant to the evidence that's now before the Congress. When the attorney general set up his report, the evidence was placed in front of the Congress. Mueller’s testimony was something I think that the Democrats hoped would just educate people who have not read that report a little bit about what's in it, and indeed that has happened. As members of Congress have gone home for the August recess at the end of July, we're seeing increasing numbers joining with those who've already become identified with one of the many bills of impeachment against Trump. The numbers are now up to, I think, 109 or 111, I don't know the current count, it changes almost daily. By the time this interview is out I have no idea how many will have joined in formally calling for the president's impeachment.

The Mueller testimony really was irrelevant to the evidence before the Congress. He did not want to appear. He is an establishmentarian-type prosecutor who believes prosecutors only speak through indictments and cases that they present in court. He felt that it was not his job to come up and make the case for an impeachment, that the report he sent spoke for itself, and it does. It delineates in great detail in no less than 10 instances of obstruction of justice. It also, without formally charging any criminal activity details certainly an unusual relationship between the Trump campaign and the Russians during the 2016 presidential campaign. While, it might not have been a formal conspiracy, it was certainly what anyone with a common definition of collusion would call collusion.

They did everything: they knew the Russians were favoring Trump, they knew the Russians were trying to disrupt the campaign, and they welcomed it all, that is collusion.

BuzzFlash: Trump said, although he walked it back a little about a month ago, that he would be glad to take information on his opponents from a foreign power.

John Dean: He is currently in an open racist series of attacks against the chairman of the Oversight Committee Elijah Cummings,. Why is that going on? Cummings has uncovered evidence that Trump’s campaign was working hand in glove with the United Arab Emirates and other Saudis on clearing energy policy. When all this is detailed — there have been leaks of it already — it shows him in collusion with the Arabs on energy. This is really unusual behavior for a presidential candidate or president.

BuzzFlash: In fact, there's an article that we had posted on BuzzFlash from ABC news that a speech that Trump gave entitled “America First” in relationship to energy had been sent to the United Arab Emirates and the Saudis for their review and editing, so that certainly puts Trump in an embarrassing position — and the country in a compromised position.

John Dean: This is based on information that Chairman Cummings committee has been digging into. This is a typical Trump ploy to attack and divert in using racism he knows will be covered by the media, and he knows his base loves. Remarkably, in the 21st century there are still Americans who are deeply racist, and Trump is playing to them. This is diverting attention from these underlying types of activities. Nobody can envision somebody running for president who's in the pocket of a foreign government, whether it be the Russians or it be the United Arab Emirates. We know now that Trump had a staffer linked to the Arabs on energy issues, and indeed he was clearing and modifying speeches that candidate Trump made, which is now apparently being well documented.

BuzzFlash:  Let me ask you, clearly there's this great public debate on this. It is to paraphrase Hamlet: “To impeach or not to impeach?” What is your response to those who say, "We shouldn't go ahead with impeachment because there is no chance in a Mitch McConnell-led Senate that the impeachment would be affirmed, and that then Donald Trump would endlessly bellow that he had been persecuted and vindicated?

John Dean:   In reality, at this time, we are going forward with impeachment. There is very much a very active impeachment inquiry that is currently afoot in the House Judiciary Committee. They are taking not only the information for their committee. They're also coordinating with the House Intelligence Committee and the House Oversight Committee. You actually have three committees right now, and possibly a fourth, with the House Finance Committee under Maxine Waters, that are actually looking for impeachable offenses and coordinating their activities, so there is an inquiry.

Now, what happens if they find indeed a catalog of potential high crimes and misdemeanors? Do they take that to the House to vote on and send to the Senate to try the president on it when they know that the currently constituted Senate will not have sufficient votes to convict because of Republicans? It takes a super majority to impeach and remove or find guilty of impeachment. The process is, of course, that the House charges impeachable offenses, and then they're tried by the Senate and they're either found guilty or not guilty, and then another vote on whether the president should be removed or not. Clearly, at this point Republicans have indicated that they don't care what the president has done, they're not going to find him guilty of anything or remove him from office. This rather spineless stance raises the issue of, "What should the house do? Should they proceed or not proceed?"

I think what should happen is that they should continue the investigation right up to and through the election. If the president is re-elected, proceed and then send it to the Senate and make the best case you can. In other words, you're putting it to the voters as much as you're putting it to the Senate. Do you want a man who committed these crimes to be re-elected? That's the way I would handle it and that's the way it may unfold.

BuzzFlash: So, you're taking the position that it's maybe better not to go through an actual impeachment process, which would lead to a referral to the Senate and a trial there, but to continue the investigations that underlie the impeachment process?

John Dean: That's what I would do, and make it very public what you're doing, give status reports on what you're doing, and let the American voters decide if this is a man they want to have reelected who is really subject to impeachment proceedings.

BuzzFlash:  But not technically in the impeachment process?

John Dean: There is no set process. There is nothing spelled out in the Constitution as to the process. The House has the ability to investigate and make the charges, and the Senate then in turn decides whether the person who's being impeached is guilty or not guilty and should be removed or not. And if it's the president who is charged, the chief justice of the Supreme Court who presides at the trial, but there is no time limit, no statute of limitations. Indeed, Nixon could have been impeached after he left office because you can use impeachment to bar somebody for future office. This is all very loose and informal, but the Constitution's very clear as to who has which powers. I think that the very effective way to use this is bringing it right into the 2020 campaign.

BuzzFlash:  Supposing more information turns up, that somehow Nadler's court request to get the underlying information on the obstruction of justice charges in particular, that he succeeds at that. To a certain extent, at that point the information is very damaging and supports in a clearer fashion the potential obstruction of justice incidents in the Mueller report. Would Nadler and Nancy Pelosi be compelled to proceed to articles of impeachment?

John Dean: Not necessarily. If they know that the Senate is going to reject them, that the Republicans will not support even an inquiry at the Senate level when trying the case, if they've already predetermined that they're not going to do anything about this president, and that's pretty much the position they've taken, then what will happen if Trump is impeached in the House .

The Republicans are utterly spineless in letting him get away with whatever he wants to do. He's taken total control of the Republican Party. He's got 90 percent support from the party on his behavior regardless of how outrageous it is. They can just continue investigating him and making public what they're finding. I think that can be highly effective in raising an issue for 2020. Here you have this president and a party who refuses to make the president accountable as any other president would be.

Trump will only get more outrageous as he gets towards the campaign. There's really no strict definition of what is a high crime or misdemeanor. I have little doubt in my mind that we'll see him commit several high crimes and misdemeanors between now and when the election is finally over, including possibly rejecting the results of the election claiming it's rigged, refusing to honor even the determination of the electoral college.

He does not play by any rules. So, having an open impeachment inquiry to me strengthens the house's position to deal with him because I think that the voters are not going to tolerate this kind of behavior. and certainly the Democrats have a strong chance of remaining in an overwhelming majority in the House. Indeed, this is going to be an issue for several members of the Senate who are up for re-election. Do they really have a mandate from their voters to have an out-of-control president? I don't think the American people in any of the Red States want this, even if they're supporters, to have an unchecked president.

As I say, I think this should be a 2020 campaign issue, and don't try to rush the articles of impeachment and force a vote in it on the House'; there's no need to. The investigations need to build the evidence. What's most important about Nadler going to court to me is not just getting the grand jury information, which may or may not shed more light on what Mueller has reported, but more importantly to get the witnesses to get defined subpoenas from the house to testify. The big test case is Don McGahn, the former White House counsel who's now a private citizen who has been told by Trump, "Don't testify." They have no power to do that.

BuzzFlash:  Let me ask you this: given Trump's determination to resist any subpoenas to invoke executive privilege even for peripheral figures in this political drama, do you think there's time to uncover further damaging information to Trump given that he's going to tie everything up in the courts and many of the courts will have judges that are Republican partisans? Mitch McConnell has been so successful at packing the federal bench with young Republican hacks.

John Dean: Well, I don't think that. The House Dems will succeed ultimately. Courts tend to expedite these kind of proceedings and they can move fairly swiftly as Nixon discovered, whose strategy was to hopefully have the courts block the release of his tapes, and of course that failed. It failed eight to zero at the supreme court level when he had appointed four or five members of the court, including the supreme justice at that point. At some point, these men on the court realized that they must not totally make the law a partisan finding. For example, Chief Justice Roberts when voting on healthcare, rather than make a partisan vote, clearly made a legal vote. I don't think John Roberts wants to be known as the chief justice of the most partisan court since the civil war.

BuzzFlash:  You mentioned the Civil War, and I'd like to ask you this: the first impeachment effort, and it actually went to trial in the Senate, was of Andrew Johnson, who was the vice president under president Lincoln, and it ultimately was voted down in the Senate. Of course, Bill Clinton was voted down in the Senate, and then Nixon as you of all people would know much better than I, resigned prior to an impeachment trial. The history of impeachment in the United States has not been very successful at removing anyone from office. You can say it was the powder keg that got Nixon to resign, but it wasn't a full impeachment proceeding in the House. Does that serve at all upon the issue of actually going through a full impeachment process ending in a referral to the senate in regards to Trump?

John Dean:  Less known are the full operations of the impeachment clause where it has removed 16 judges. Actually, a friend of mine represented the House in trying four of those judges that were removed, judges who had been convicted of criminal activity and refused to leave the bench invoking the impeachment clause, so it does work. You mentioned the impeachment of Andrew Johnson. I happen to be reading an excellent book by Brenda Wineapple right now. It's this most recent work on that impeachment proceeding, and it was razor close. Andrew Johnson was almost something of a parallel with Donald Trump in his refusal to follow the dictates of Congress.

Johnson, of course, followed Lincoln in the presidency after Lincoln was assassinated and really was determined not to have Blacks integrated into white society. He was a total racist and tried to resist Reconstruction, and that's where he got into a fight with Congress and was attacking Congress on a fairly regular basis. Congress really found a very nominal violation of the law, a tenure in office law that he ignored, so they used that as the basis for the impeachment, so it was a pretty thin case that they made against him when they could have actually built a stronger case, and survived by one vote in the Senate, so that's about as close as you can get.

Even more effective, for example, in Andrew Jackson's presidency the senate censored Jackson. Jackson spent the rest of his life trying to get that censor removed and actually did get that removed, but it was fairly effective for anybody with a conscience to have the Senate come down and censor you. I'm not sure it would affect Trump very much. I'd say the House that's already rebuked his behavior would take the next step and censor his behavior. I think the mechanics do work, and they are there. They can remove a president who's out of hand, and that's why I think this should be a campaign issue in 2020 if this man is re-elected through some fluke and through a blatant appeal to racism that he seems to be now designing as his campaign. Can he get enough racists to get through the electoral college? Maybe, but I think the overwhelming majority of Americans do not want that kind of president. He's going to commit high crimes and misdemeanors along the way.

Don't close this proceeding down before the election. Don't force members of the house to vote on it knowing the Senate's going to do nothing with it. There's nothing that says the House has to send a vote of impeachment to the Senate for trial. There are some rules in the House that I haven't looked at it in years. I don't think there's a strict timeline for when they'd have to send that over. Indeed, they could send it to a new congress after a vote in 2020. I just like this being a campaign issue that is focusing attention on the behavior we have seen by this president because I think that most Americans don't approve of it.

BuzzFlash:  One final question, which is shifting from impeachment to another action that the Democrats in the house could take and you have just made mention of, which is, What are your viewpoints towards censuring Trump?

John Dean: That's always the fallback. They could be continuing with the impeachment process and before they even get to a bill of impeachment, they could censure him. They could censure him at any time they wanted to draw a resolution of a censure, so that's another tool they could focus on behavior before the election and say, "Listen, we have an impeachment proceeding underway. We're not prepared to send that to the Senate yet, but we have found sufficient evidence to censure this man." And they should do so.

They can send that over to the Senate and make it a joint resolution of censure or the house alone. The Senate can't reverse the House's censure. They can decide not to vote on it or vote that they approve Trump's behavior in rejecting the resolution of the censure. Let those members in the Senate who are up for re-election who are Republicans run on approving Trump's behavior. I just don't think it's saleable even in the deepest of Red States. I think there are lots of tools the Democrats have if they decide to use them.

BUZZFLASH INTERVIEW

John Dean is a CNN analyst who recently testified before the House Judiciary Committee on the parallels between the hearings that led to articles of impeachment being filed against Nixon — Nixon resigned before the impeachment hearings began — and the evidence compiled against President Trump. Dean was White House Counsel during Nixon’s second term and told him, that "We have a cancer within, close to the presidency that is growing." Dean has a distinguished history as an author and legal scholar. You can read more about him at his web page on VerdictJustia.com.

Around the time of his recent Congressional testimony, Trump launched some mocking defamatory tweets aimed at Dean. Dean responded by throwing shade at Trump in this tweet:

You can also read one of our prior interviews with Dean, conducted in 2004, about his book documenting that the Bush administration was “Worse Than Watergate.”

This interview was conducted by Mark Karlin