Two weeks after former Attorney General Michael Mukasey embarrassed CNN host Chris Cuomo on his own show (Cuomo Prime Time) by calling out how his was “misleading a lot of people,” he was back to school Cuomo and spoon feed him the law on executive privilege, releasing grand jury material, and obtaining FISA warrants. As a reminder, Cuomo used to be a trained lawyer and treats his show like a courtroom.
As they began diving into what was covered by executive privilege, Cuomo couldn’t understand why former White House counsel Don McGahn’s conversations with President Trump should still be protected (click “expand”):
MUKASEY: McGahn's disclosures. Because --
CUOMO: Even if he doesn't work there anymore.
MUKASEY: Correct. It's not whether he works there anymore, it's whether he worked there at the time that he made them.
CUOMO: But does the privilege survive? I mean, it's not the privilege of me giving you $5 and you representing me in a case against someone else. That's a complete privilege. This is an incomplete privilege.
Mukasey tried to explain that since McGahn and Special Counsel Robert Mueller were both part of the executive branch, their conversation was protected. And in the process, Mukasey blasted Democrat Rep. Ted Lieu (CA) for being “flat-out wrong” about McGahn waiving that privilege.
Cuomo still couldn’t wrap his head around it, so Mukasey had to walk him though the logic step-by-step (click “expand”):
MUKASEY: Mueller is still a member of which branch of government?
CUOMO: Executive.
MUKASEY: Thank you. It's an executive privilege. Disclosure from one part of the executive to another part of the executive is not a waiver of the executive privilege.
CUOMO: Who says? It's hard to find cases on point that's why I ask you.
MUKASEY: Okay. The concept is inconsistent with waiver. Number one. Number two, if it is a waiver, it's as you know from law school, waivers are narrowly construed. It's a relinquishment of a right.
“Why block so much. You say you were fully exonerated. You say you have nothing to hide. You say you're going to give everything you can. Everybody around him keeps saying he's always transparent, he's always giving everything. He's giving nothing,” Cuomo whined about the President.
Recalling how a less-redacted version of the Mueller Report was made available to Congress, Mukasey argued that Democrats proved they weren’t out to gather facts because zero of them showed up to view it.
“We got what? Six percent redacted. Mostly having to do with ongoing investigations,” Mukasey added as Cuomo continued to complain about transparency.
As Cuomo began to argue that a judge could be petitioned to release the redacted grand jury material in the report, Mukasey again had to educate the former lawyer on the law (click “expand):
MUKASEY: No, you can't.
CUOMO: Why can't you go and deal with the 6E material that way? It's been done before.
MUKASEY: No, you get a 6E order only for law enforcement purposes. That's the limit.
CUOMO: So you can't do it for anything else?
MUKASEY: No, sir.
CUOMO: The idea that in blocking all of these things he attacking the legitimacy--
MUKASEY: You can't do it to satisfy congressional curiosity.
From there, the pair moved on to discussing the fishy nature of the FISA warranted the FBI used to spy on Trump campaign staffer Carter Page. “We have a lot of reasons to believe that something was done that shouldn't have been done,” Mukasey accurately noted.
Mukasey explained that the warrant against Page was granted using “incomplete information.” And as further proof something was wrong with the investigation, he pointed to the fact that Page was not charged with a crime. “Who said he had to be,” Cuomo decried.
Flashing his lack of knowledge about the FISA court and perhaps a bit of gullibility, Cuomo began arguing about what was need to get a FISA warrant. Mukasey was more than happy to set him straight (click “expand”):
CUOMO: To get a FISA application, you need to find probable cause he may be a foreign agent, not that he committed a crime and you need never charge him.
MUKASEY: No, for an American citizen, which Carter Page was, you need a showing that he was involved in the commission of a crime.
CUOMO: I do not -- are you sure that that's the standard?
MUKASEY: Yes, I am.
CUOMO: Because I have somebody from the DOJ who was involved in that who says it's not the standard. You have to show that he had probable cause or you had probable cause he was a foreign agent.
MUKASEY: Chris, I will send you the statute by email.
CUOMO: It has to check both boxes?
MUKASEY: Yes. For an American citizen.
CUOMO: For an American citizen.
MUKASEY: Not for a foreigner.
Again, Mukasey did a very good job of exposing how CNN, and Cuomo, mislead a lot of people.
The transcript is below, click "expand" to read:
CNN’s Cuomo Prime Time
May 8, 2019
9:23:59 p.m. Eastern(…)
CHRIS CUOMO: So, now you have this confounding question of what the President has the right to do in terms of blocking oversight versus what is right to do. I know you find that part of it cumbersome sometimes because, you know, your mind goes to the law all the time. But this is a political situation as well.
MICHAEL MUKASEY: Right, but it doesn’t always go to the law. In this case it goes to what prerogatives the President wants to protect. Not necessarily for his own sake but for the sake of the next guy. That is a concern of the White House on an ongoing basis. Every time they consider one of these questions, they consider not only what's at stake now, but what's going to be at stake later on if we turn this over or not.
CUOMO: Do you really believe that this President is worried about what precedent will be set for next administration?
MUKASEY: I believe that people in the White House counsel's office are worried about that. I believe people on his staff are worried about that. Whether he's worried about it, I don't know and I share some of your doubts.
CUOMO: When you look at the categories of different things that would amount to privilege, what do you have here? Because when you look at national security, well, they have clearance in Congress. Certainly, certain members of them have high clearance. Then the other categories. What would apply as privilege?
MUKASEY: What would apply is executive privilege.
CUOMO: Why?
MUKASEY: McGahn's disclosures. Because --
CUOMO: Even if he doesn't work there anymore.
MUKASEY: Correct. It's not whether he works there anymore, it's whether he worked there at the time that he made them.
CUOMO: But does the privilege survive? I mean, it's not the privilege of me giving you $5 and you representing me in a case against someone else. That's a complete privilege. This is an incomplete privilege.
MUKASEY: That privilege -- there are various ways that that survives. Number one, the disclosures that McGahn made to Mueller, which your last guest said were a complete waiver. That's just flat-out wrong.
CUOMO: How do you know?
MUKASEY: [Laughs] Mueller is still a member of which branch of government?
CUOMO: Executive.
MUKASEY: Thank you. It's an executive privilege. Disclosure from one part of the executive to another part of the executive is not a waiver of the executive privilege.
CUOMO: Who says? It's hard to find cases on point that's why I ask you.
MUKASEY: Okay. The concept is inconsistent with waiver. Number one. Number two, if it is a waiver, it's as you know from law school, waivers are narrowly construed. It's a relinquishment of a right.
CUOMO: Doesn't it go to the same corpus of fact.
MUKASEY: It’s not a question of corpus of fact, it's a question of the actual disclosure. He can be deemed to have made a waiver to the extent that any of those disclosures were disclosed.
CUOMO: The larger question becomes why block --
MUKASEY: And limited to that.
CUOMO: Why block so much. You say you were fully exonerated. You say you have nothing to hide. You say you're going to give everything you can. Everybody around him keeps saying he's always transparent, he's always giving everything. He's giving nothing.
MUKASEY: Because the point of this is not to find out facts. We learned that when the report was made available on a far less redacted basis than it had been when originally disclosed, and three people came to look at it.
CUOMO: Right.
MUKASEY: How many Democrats do you think were among them? [Holds up zero with his hand]
CUOMO: Oh, you're saying you don't believe they want to look at facts because --
MUKASEY: Correct.
CUOMO: Because they say they want the whole thing. They don't want to come and look at a limited thing. They want it all.
MUKASEY: Well, if they want -- if they want it all then it would be unlawful to disclose it all.
CUOMO: But you think Mueller was out for facts, right?
MUKASEY: I think -- of course I think Mueller was out for facts.
CUOMO: Good. That's a good thing to say.
MUKASEY: The question is what he did with them.
CUOMO: Well, we'll see when we get the full unredacted report. But here’s my concern--
MUKASEY: No, we've seen -- come on. We got what? Six percent redacted. Mostly having to do with ongoing investigations.
CUOMO: It's what percentage of it that you want to see.
MUKASEY: Please.
CUOMO: Why not give it all if you have nothing to hide? Assuming it's not about national security matters.
MUKASEY: Because –
CUOMO: Why not just do it.
MUKASEY: It's about three things. National security matters, which you agree shouldn't be disclosed. Matters that could affect ongoing cases, which I assume you think shouldn't be disclosed. And grand jury material, which it is unlawful to disclose.
CUOMO: Well, but, you can go and petition a judge.
MUKASEY: No, you can't.
CUOMO: Why can't you go and deal with the 6E material that way? It's been done before.
MUKASEY: No, you get a 6E order only for law enforcement purposes. That's the limit.
CUOMO: So you can't do it for anything else?
MUKASEY: No, sir.
CUOMO: The idea that in blocking all of these things he attacking the legitimacy--
MUKASEY: You can't do it to satisfy congressional curiosity.
CUOMO: Well, it depends if it falls within their role of oversight.
MUKASEY: No, it doesn't depend on that --
CUOMO: They have a constitutional duty to do that.
MUKASEY: The law says that you get a 6E order from a judge.
CUOMO: Oh, you're talking about just that. I'm saying all of it in general. The President and his people keep arguing “all of this is wrong. It goes wrong all the way back to FISA. Everything they did with surveillance was wrong, wrong, wrong and wrongly intentioned.” Why spread it so wide like that when there is so little proof of the same?
MUKASEY: I don't know that -- who spread it that wide?
CUOMO: The President says it all the time. Now they're saying that was spying what was done with Carter Page. “It was nefarious and wrongful.” We have no reason to believe that.
MUKASEY: We have a lot of reasons to believe that something was done that shouldn't have been done.
CUOMO: How do you know? They got the -- they got the FISA application for Carter Page. It was successively reauthorized. What was wrongs with that?
MUKASEY: Based on incomplete information. Number one. Number two, the person who was the occasion for the surveillance, Carter Page.
CUOMO: Yeah.
MUKASEY: Was never charged with anything.
CUOMO: Who said he had to be?
MUKASEY: You had to make a showing and an allegation in that application not only that he was a foreign agent but he was involved in the commission of a crime.
CUOMO: That is not true.
MUKASEY: Yes, it is.
CUOMO: To get a FISA application, you need to find probable cause he may be a foreign agent, not that he committed a crime and you need never charge him.
MUKASEY: No, for an American citizen, which Carter Page was, you need a showing that he was involved in the commission of a crime.
CUOMO: I do not -- are you sure that that's the standard?
MUKASEY: Yes, I am.
CUOMO: Because I have somebody from the DOJ who was involved in that who says it's not the standard. You have to show that he had probable cause or you had probable cause he was a foreign agent.
MUKASEY: Chris, I will send you the statute by email.
CUOMO: It has to check both boxes?
MUKASEY: Yes. For an American citizen.
CUOMO: For an American citizen.
MUKASEY: Not for a foreigner.
CUOMO: If it's an American citizen you need to check both boxes.
MUKASEY: Correct.
CUOMO: Good, let me know. Mike Mukasey, I always appreciate you making the case.
MUKASEY: Good to be here.
(…)
