Lawfare Archive: Carrie Cordero and Paul Rosenzweig Weigh in on Comey

Summary

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The Lawfare Podcast: Lawfare Archive – Carrie Cordero and Paul Rosenzweig Weigh In on Comey

Original Air Date: June 9, 2017 (Archive Episode Rebroadcast May 3, 2026)
Host: Benjamin Wittes
Guests: Carrie Cordero & Paul Rosenzweig

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Overview

This episode revisits a pivotal 2017 Lawfare conversation in the aftermath of former FBI Director James Comey’s testimony before the Senate Intelligence Committee about Russian interference in the 2016 election and his interactions with President Trump. Benjamin Wittes leads an in-depth discussion with Carrie Cordero, former DOJ National Security Division counsel, and Paul Rosenzweig, former counsel in the Clinton impeachment process, exploring both the substance and implications of Comey’s testimony — particularly as it relates to obstruction of justice and the broader U.S. political context.

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Key Discussion Points & Insights

1. The Real National Security Issue: Russian Interference

• Carrie Cordero quickly centers the conversation on what she calls the "most substantive and actually most important" fact:

  “There unequivocally, definitively, without a doubt was Russian influence on the campaign. And I think we just need to keep that point at the fore going forward” (03:03).

• She notes it’s remarkable how this core issue was not a focus for President Trump in his interactions with Comey, nor did it seem to occupy any concern for the president as a criminal or counterintelligence matter (03:52).

2. Comey’s Testimony: The Theatre and Substance

• Paul Rosenzweig praises the Senate for conducting itself soberly, calling the hearing “amazing theater” reminiscent of Ken Starr’s testimony during the Clinton impeachment (06:04).
• Both guests find Comey’s manner credible, with Rosenzweig stating:

  “Jim Comey personally comes across as extremely credible and forthright. You may not like what he said, but it's pretty hard to think that any neutral finder of fact would discount what he said” (07:26).

3. Impact on President Trump: Assessing the Fallout

• Paul: It was “moderately bad” for the president—Trump appeared to be trying to influence the investigation, demanding loyalty, and requesting the Flynn case go away, all “strikingly inappropriate actions” (08:22–08:35).
  • Still, these actions fall into a gray area:

    “Even if they don't rise to the level of obstruction of justice...” (08:36).

• Carrie: Far more severe — rates it “an 8” out of 10 on the bad day scale, especially because a credible witness confirms “he asked a FBI director... for his personal loyalty, which is frankly offensive to anybody who has served in government and taken the oath to the Constitution” (09:28).
• Wittes raises a frequent audience question: “What’s wrong with loyalty?”
  • Carrie explains the FBI Director’s loyalty must be to the law, not the president, noting the 10-year term was designed for independence from political influence (10:59). She also questions the failure of administration advisors to halt Trump's improper contacts (12:49).

4. Mitigating Factors for the President

• Paul adds nuance:
  • Comey confirmed Trump was not under active counterintelligence investigation at that time, which is mitigating (13:47).
  • There’s ambiguity in Trump’s discussions — plausible deniability helps his defense (14:06).
  • Comey’s own missteps—leaking his memo to prompt the Special Counsel—makes him “less of the perfectly straight shooter” (14:36).
  • Ultimately, as long as Republican leaders and Trump’s base remain unmoved, the “geopolitical needle” doesn’t move (16:41).
  • “I give it a 4, 5, 6, something in that range” (16:49).

5. Was There Obstruction of Justice?

• Carrie: The hearing made clear that obstruction is now within the Special Counsel’s mandate (18:29).
  • Both the Special Counsel and Senate Intelligence Committee are “taking the obstruction issue seriously.”
  • Still, practical prosecution is unlikely:

    “Most legal observers agree... the likelihood of a president being charged with obstruction is highly unlikely... that would have to be resolved through the political process” (19:30).

• Paul:
  • Legally, obstruction is hard to prove; it largely comes down to “corrupt intent,” and that is hard to establish (21:01).
  • Adjudication will likely be political, not strictly criminal:

    “It is notable that both Clinton and Nixon had articles of impeachment that sounded in obstruction of justice...” (22:50).

6. Role and Limits of the Special Counsel

• Carrie: Raises concerns about the Special Counsel’s reporting obligations—what happens if there’s evidence of misconduct short of an indictable crime?
  • She cites John Carlin’s piece urging clearer congressional guidelines for report delivery (24:38).
• Paul:
  • Argues against the “Truth Commission” model, favoring criminal prosecution or closure and leaving political questions to Congress (28:10).

7. Congress’s Responsibility: Should There Be an Impeachment Inquiry?

• Paul: “If this were a Democrat president, the Republicans in Congress would have started an obstruction of justice impeachment inquiry already, and they should do so as well here” (41:13).
• Carrie: Agrees there’s public domain evidence justifying an inquiry, but notes the importance of coordination between committees, and underscores the case may rest on “a pattern of behavior… actions that form the basis of the obstruction case” rather than a “bombshell” (41:35–43:13).
• Benjamin Wittes: Emphasizes that “if there’s an obstruction case… it’s fundamentally about an aggregation of activity, not about any single act” (43:13).

8. The Counterintelligence Angle: Was Trump "In the Clear"?

• Carrie: Disagreed with Comey’s decision to assure Trump he wasn’t under investigation, believing that—given the expansive nature of the probe—that was inadvisable (46:01).
  • In terms of communications strategy:

    “The advice should be he shouldn’t be talking about it at all. He shouldn’t be making any claims, he shouldn’t be claiming vindication. He shouldn’t be talking about it. He shouldn’t be tweeting about it” (47:32).

9. Analyzing Comey’s Conduct and Vulnerabilities

• Paul: On Comey’s public credibility:

  “To some degree, his own acknowledgment that he’s imperfect strengthens his credibility. He didn’t try and hide… his motives” (49:05).

  • Criticism: Comey may have been too cautious—if he thought Trump’s behavior was so inappropriate, why not raise more urgent alarms at the time? (51:52).
• Carrie: The “leak” gave Trump allies a talking point but did not constitute a crime or significant vulnerability (51:05).
• Wittes: Echoes that the more substantial issue is Comey’s reticence at the time and his failure to report to, for example, congressional intelligence leadership (53:01).

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Notable Quotes & Memorable Moments

• Carrie Cordero:

  "What was the most substantive and actually most important from a national security perspective fact... was that there unequivocally, definitively, without a doubt was Russian influence on the campaign." (03:03–03:40)

• Paul Rosenzweig:

  "Jim Comey personally comes across as extremely credible and forthright. You may not like what he said, but it's pretty hard to think that any neutral finder of fact would discount what he said." (07:26)

• Benjamin Wittes:

  "What’s wrong with loyalty?" (10:00)

• Carrie Cordero:

  "We don't take oaths to a monarch, we don't take oaths to an individual. And so at the end of the day, a person's responsibilities is to uphold the laws of the country." (10:59)

• Paul Rosenzweig:

  "If this were a Democrat president, the Republicans in Congress would have started an obstruction of justice impeachment inquiry already, and they should do so as well here." (41:13)

• Carrie Cordero:

  "There may not be one specific act by the President. There may not be one specific event that makes the case for obstruction. But instead... a pattern of behavior and a sequence of acts and events and statements and tweets and actions that form the basis of the obstruction case." (42:34)

• Benjamin Wittes:

  “If there’s an obstruction case here... it’s fundamentally about an aggregation of activity, not about any single act.” (43:13)

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Timestamps for Key Segments

• Russian interference as primary concern – 03:03
• Comey’s interactions with Trump and lack of concern about Russian threats – 03:52
• Theatrical aspect & congressional handling – 06:04
• How bad for the President? – 08:08–10:00
• Request for loyalty and its inappropriateness explained – 10:59–12:50
• Mitigating factors for Trump – 13:47–16:49
• Obstruction: Legal vs. political standards – 18:29–24:38
• Special Counsel reporting limitations – 24:38–28:10
• Impeachment inquiry? Congressional duties – 41:00–43:13
• Counterintelligence investigation: Should Trump feel vindicated? – 44:26–47:32
• Comey’s vulnerabilities and “the leak” – 49:05–53:01
• Critique of Comey’s failure to escalate concerns – 53:01–57:44

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Tone and Language

The conversation is serious, analytical, and at times candidly critical. The participants combine deep legal and historical expertise with plain, direct language, making complex matters accessible but never minimizing the stakes. Personal experience (e.g., Rosenzweig’s Clinton impeachment role) is brought in to add nuance to perspectives on legal, political, and ethical dilemmas.

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Conclusion

This classic Lawfare episode offers a thorough, reflective, and remarkably prescient assessment of James Comey’s Senate testimony, the Trump administration’s legal jeopardy, and larger questions about justice, national security, and the health of U.S. political norms. Through detailed analysis and pointed debate, Cordero and Rosenzweig draw sharp distinctions between legal and political accountability, emphasize the gravity of Russian interference, and highlight the enduring challenges in managing high-stakes investigations at the heart of American governance.

Transcript

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[Kerry Cordero]

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Foreign.

[Marissa Wong]

I'm Marissa Wong, intern at Lawfare, with an episode from the Lawfare archive for May 3, 2026. On April 28, former FBI Director James Comey was indicted a second time by the Trump administration. In this latest attempt, the Justice Department has accused him of threatening President Trump for an Instagram post that depicted seashells laid out in the formation of the numbers 8647. For today's archive, I chose an episode from June 9, 2017 in which Benjamin Wittes sat down with Kerry Cordero and Paul Rosenzweig to discuss Comey's testimony at the Senate Intelligence Committee on Russian interference in the 2016 presidential election and the role Comey's investigation played in his fire.

[Quinta Juresik]

I'm Quinta Juresik and this is the Lawfare Podcast. Former FBI Director James Comey made a lot of news yesterday in his long awaited testimony before the Senate Intelligence Committee. But what should we take away from what he said? To answer that burning question, we brought in two guests with some serious expertise on the matter. Benjamin Wittes sat down with Kerry Cordero, who formerly served in the National Security Division of the Justice Department, and Paul Rosenzweig, who formerly served under independent counsel Kenneth Starr during the Clinton administration, to talk Comey, what he said, what he didn't, and what this means for the Trump administration going forward. It's the Lawfare podcast, episode 232 Kerry Cordero and Paul Rosenzweig weigh in on

[Benjamin Wittes]

Comey so let's start with just people's general impressions of what happened yesterday and what it means. Carrie, get us started. We saw the former FBI director give his account of his interactions with the President. What do you make of it?

[Kerry Cordero]

Well, I'm actually going to start in a place that you might not expect, which is not on the the various meetings and conversations between former Director Comey and President Elect and then President Trump, but actually which is what was the most substantive and actually most important from a national security perspective fact that Comey reiterated, which was that there unequivocally, definitively, without A doubt was Russian in influence on the campaign. And I think we just need to keep that point at the fore going forward that that doesn't get lost in all of the other soap opera related dynamics that are captivating everybody's attention.

[Benjamin Wittes]

So I look at that fact and I say one of the fascinating aspects of that is that in all of the interactions between Comey and the President, one thing he does not report is that the President ever expressed concern or interest in that fact as either a potential criminal matter or as a ongoing counter intelligence problem. What did you make of. I mean, by and large, Comey's testimony was not about that. It was about these interactions. But you want to read those interactions in light of that underlying fact, what's the interaction between the two?

[Kerry Cordero]

Well, so on that particular angle. So again, they had numerous interactions. I mean, I think what was revealed through Comey's testimony, aside from the major points that really came out in his written statement, and I don't think were that much elaborated during his oral testimony, which was that the President asked for a loyalty oath and that the President insinuated, requested, directed, however one wants to interpret it, that he make the Mike Flynn criminal case go away. Those are the two sort of dynamics between their interactions that came out. But what it underscores is that in all of these various interactions that they had, Jim Comey was the FBI Director. He was the top counterintelligence officer that the President interacted with with respect to domestic threats, with respect to FBI domestic counterintelligence. And the fact that the substance of this major national security threat was never discussed is relevant to the President's performance in his role as President and Commander in Chief.

[Benjamin Wittes]

Paul, what are your overarching thoughts? Yesterday, among other things, was incredible theater. And so give us the theater review. What did you make of it?

[Paul Rosenzweig]

Well, it was indeed amazing theater, reminiscent in my mind of the time that Ken Starr testified in front of the House Judiciary Committee regarding Bill Clinton's impeachment. That was the last time that we had such a riveting set of testimony. To my mind, echoing what Carrie said, I think that the testimony made it clear that the key fact for Special Counsel Mueller going forward is finding any links, if they exist, between the obstruction piece of this investigation and the Russian interference piece of this investigation. I was very pleasantly surprised by the generally sober and effective performance of the Senate that, you know, there were a couple of exceptions, of course, as there always are. But by and large they treated this matter with the gravity and seriousness that I think it deserves. And Mostly masked their partisanship, you know, in somewhat in the tenor of their questioning, but mostly masked it. And that's a positive for anybody who's actually looking at the article. One branches of this, of this country to play an effective role in resolving whatever it is that needs resolving. With respect to the specter of Russian interference, this was a pretty darn good day. And last, I would say that Jim Comey personally comes across as extremely credible and forthright. You may not like what he said, but it's pretty hard to think that any neutral finder of fact would discount what he said simply because they disagreed with it.

[Benjamin Wittes]

All right, so let's turn to the evaluation of the story that he told. How bad a day was it for the President?

[Paul Rosenzweig]

Moderately bad. It makes him look like he was trying to influence the investigation. I think that's kind of the fairest summary. He demanded loyalty.

[Benjamin Wittes]

He

[Paul Rosenzweig]

asked him to put away the Flynn investigation. He asked him, you know, to help dissipate the Russian cloud over his presidency. All of which are strikingly inappropriate actions, even if they don't rise to the level of obstruction of justice. We can talk about that in a second. I think that we're already seeing the President's response, which is, I came here to blow up Washington. I don't care about your norms. I didn't know that that's inappropriate. I'm not even sure it should be inappropriate. You guys are making a mountain out of a molehill, and I'm from New York. Suck it up, buttercup.

[Benjamin Wittes]

What do you think, Harry? Scale of 1 to 10, how bad a day is it for the president?

[Kerry Cordero]

Maybe an 8? I think it's a, I think it was a bad day for him because it confirms the, through a very credible witness that he asked a FBI director who was supposed to have an apolitical 10 year term for his personal loyalty, which is frankly offensive to anybody who has served in government and taken the oath to the Constitution and to uphold the laws of the United States.

[Benjamin Wittes]

Okay, so let me. You know, I've said this about a dozen times, and every time people say, you know, what's so wrong with loyalty? And so let me pause on that and just ask you to flesh that out. You're a Republican, you're a former Justice Department official at the, at the career level. What's wrong with. If you're a, a holdover official from the prior administration, as Comey is, the administration changes party. The president doesn't know who you are politically and doesn't know are you going to be one of These borrowers, who's going to undermine him. So he invites you over to the White House and says, hey, can I count on your loyalty? I need that. Walk me through what is wrong with that.

[Kerry Cordero]

So when the FBI director, when any other government official, even at a low federal civil service level, somebody who is an employee of the federal government, assumes their position, they take an oath that they will uphold the laws of the country. We don't. I think there's a historical aspect to this that we don't take oaths to a monarch, we don't take oaths to an individual. And so at the end of the day, a person's responsibilities is to uphold the laws of the country. With respect to the FBI Director, there is a heightened distancing because he is, although he does serve at the pleasure of the President and can be lawfully for fired, he, by a law of Congress has a 10 year term which was different than all other political appointees in that the 10 year term was intended to insulate that role, which has a law enforcement function, which needs to conduct investigations independent of political influence, to a ten year term. And so I think that there is a special issue with respect to the President's asking loyalty of an FBI director as opposed to sort of asking to some political special assistant, you know, are you going to help me achieve my policy objectives? And I do have one thought with the respect of the argument that the President really doesn't know better and he's a Washington neophyte and he really doesn't understand that he wasn't supposed to discuss an ongoing criminal investigation with the FBI director. Where is everybody else in government in his administration who is supposed to be advising him about those rules? There are long standing traditions written memorandum that govern contacts between the White House and the Justice Department, which includes the FBI, about discussing ongoing criminal investigations. And that's the White House counsel's job. That is the Attorney General's job.

[Benjamin Wittes]

Paul, what do you think is there? You kind of raised your eyebrows when, when Carrie said It was an 8 on a bad day scale. You had said it was moderately bad. What's the mitigating factors for the President here?

[Paul Rosenzweig]

Well, there are a couple mitigating factors for the President. The first is Comey confirmed that he wasn't the subject of a CI investigation.

[Benjamin Wittes]

And why is that mitigating? I mean, in the sense that it wasn't like Comey had ever said he was. He was.

[Paul Rosenzweig]

Well, it's mitigating in the same way that it was, you know, mitigating for Hillary Clinton, when Comey said he, she was not no longer the subject anytime the investigative agent who's in charge of looking at your conduct says he's not currently under investigation for that. That, you know, is rightly taken as a partial vindication of the view that there's no there there, or if there is a there there, it hasn't been, you know, exposed to the faa. So that's the first thing. The second piece is that the descriptions of the discussions with the president, while I find them, you know, chilling and terrible, leave enough ambiguity, I think, that he's going to be able to, you know, make out a colorful case that he was, I mean, yeah, McGahn should have been in the room telling him not to do this, but he, he, he's got some reasonable defenses to make to the charge that he was obstructing justice. Not that, you know, that's a good thing that you're even being considered for the charge. Third, it turns out that Comey made what at least are plausibly some missteps. I'm thinking particularly of the disclosure that he was behind, purposely behind the leak of his memorandum as a means of trying to influence the appointment of a special counsel. That's, I mean, I certainly don't think that that was a crime or an ethics violation on Comey's part, but it does paint him as more of a manipulator of the process and less of the perfectly straight shooter. I'm just here to tell you the facts. I mean, his, his written statement was G man, right? You know, just the facts, plain and simple. His, his emotive opening statement was just the facts with my, my anger at being manipulated by the president and he loses a little bit of the second bit of that, the moral credibility with, with that. I think the third thing or the fourth thing that, that mitigates this completely is that at least the initial reaction in the Republican elected party is one of, we don't care. We're going to stick with him. Secretary Speaker Ryan, you know, some of the senators, you know, for me, this game is going to all be played out in the political sphere. And Comey's testimony didn't really move the dial, and I don't think it probably moved the dial with President Trump's hardcore of support. They really still are the group that he could go and shoot somebody in the middle of Fifth Avenue and they would disregard it. And Comey's testimony didn't move that needle. So if you want to see a change in the perspectives that, you know, we're all, I think, rightly, deeply appalled at what Comey reported, but it didn't move the geopolitical needle that much. So I give it a 4, 5, 6, something in that range.

[Benjamin Wittes]

Interesting. That's actually a pretty big gap between the two of you in terms of that. That's very interesting. So let's bracket the question of what punches were landed on Comey, either by himself or by others for now. And let's finish up with the question of the impact for the President. And let's talk specifically about the obstruction question. We now have under oath. A series of claims about a set of interactions, some of which the President disputed through his counsel last night, one of which the Justice Department disputed in terms of his interactions with the Attorney General. But the disputes, of course, are not under oath and the parameters of the disputes are not clear. So my question for both of you, let's start with Carrie, is how seriously should we take this, the idea that there may have been an obstruction of justice here?

[Kerry Cordero]

Well, one new fact that I think emerged through former Director Comey's oral testimony was a fairly definitive statement that the issue of obstruction is now under the purview of the Special Counsel. I'm not sure that before yesterday we had heard that clearly articulated. There have been various reports this week indicating that the Special Counsel was sort of working on determining how broad his investigation is going to be. And so that struck me as a fairly new fact that Comey said specifically obstruction is going to fall under that investigation. So certainly Special counsel is going to look at it. The I think the fact that the Senate Intelligence Committee had the hearing that they had yesterday with Comey testifying specifically primarily on the interactions between himself and the President, indicates that the committee is also now open to taking on the issue of obstruction, because that was really the purpose of the hearing. That was what his statement was geared towards. That's what the bulk of the questions were about. So that indicates to me that the committee is also taking the obstruction issue seriously. So I think there's enough indicators that the two major investigations that are taking place right now think it's serious, which means that it's serious. That being said, I think most legal observers agree that the likelihood of a president being charged with obstruction is highly unlikely, and that obstruction, if in fact a record were established through the special counsel investigation or the committee investigation that demonstrate factual support for elements of obstruction, that that would have to be resolved through the political process.

[Benjamin Wittes]

Paul, what do you think? How strong. How strong a case for obstruction do you think There is here most both if we consider obstruction as a statutory criminal matter, but also if you consider sort of the more colloquial sense of obstruction of justice that may be cognizable through the impeachment process.

[Paul Rosenzweig]

Well, obstruction charges are notoriously easy to bring and hard to prove. And the reason they're difficult to prove in a court of law is because the, the critical component of corrupt intent is often typically only provable by inference. Very few people publicly declare their corrupt intent as they act in doing their obstruction. And given the high burden of proof that attends any criminal charge and the added political benefit of doubt that will probably attend any trial of President Trump, it'll be a hard charge. Though I will say that the prosecutor does have the advantage that the venue for this is, if it were to exist, would be here in the District of Columbia where the Venayer is probably as anti Trump as you would ever find. So that's the flip of the Clinton administration. Administration where the Venaya was in the district and it was pro Democrat and so it was an unlikely place to secure a conviction. So that makes it possible. And then I've also bracketed whether or not a sitting president can be indicted because that's a theoretical question that has never been answered by the courts. So I think Kerry's absolutely right that it will be a significant aspect of Mueller's criminal investigation that Trump could possibly worsen by ill advised tweeting for himself

[Benjamin Wittes]

that some of which he did this morning.

[Paul Rosenzweig]

Yeah. Gives greater rise to corrupt intent inferences. But my sense is that this is more likely to be resolved, if it's resolved at all, as Carrie said, as a political obstruction of justice consideration. It is notable that both Clinton and Nixon had articles of impeachment that sounded in obstruction of justice, that basically sounded like severe attempts to manipulate the public perceptions and policy through ill advised means, if you will.

[Benjamin Wittes]

Yeah, I mean, so like Clinton, neither Clinton's obstruction charge nor Nixon's referred specifically to the statutes. Right. They were just basically you used your power in a fashion so as to obstruct the due administration of justice. And if I were advising the House Judiciary Committee, assuming that there were members of the House Judiciary Committee who were even interested in the problem, I would say I'm not sure strict violation of the statute is the relevant question. The relevant question is sort of is this an okay way for the President to behave with respect to the Director of the FBI?

[Paul Rosenzweig]

You're too weak. I would state it affirmatively. Violation of the statute is not the definition of obstruction of justice in the political context.

[Benjamin Wittes]

So how would you define obstruction of justice in the context that we're dealing with here, which is, you know, a and if you're Mueller, how do you understand the relationship between your investigation, which for this purpose is a simple criminal investigation, and that standard.

[Kerry Cordero]

Carrie so this is a really important point, and John Carlin has an article, a piece of analysis out in the Washington Post this morning, and I want

[Benjamin Wittes]

to point out that he did not write it for lawfare, and we're a little bit sore about that.

[Kerry Cordero]

Well, I'm going to commend it to lawfare listeners anyway. John Carlin, many of the lawfare community knows him as the former assistant attorney general for national security, but he also was the former chief of staff to the FBI under Director Mueller. And John's piece raises a very important point that Congress needs to think about, which is that even if the special counsel considers obstruction as part of its mandate, the current special counsel arrangement is very unclear regarding what is the deliverable, if not criminal, charges. So, in other words, everybody has confidence that to the extent the special counsel, in its broad investigation uncovers evidence of crime and believes that there are prosecutable offenses, it will pursue those in terms of criminal prosecution, whether that involves activities regarding Michael Flynn, whether that involves potential financial issues that are related to the Russian investigation. But let's say on the obstruction piece, if the special counsel does not get to a prosecutable offense, what is the mechanism for the special counsel to be able to provide its findings, whatever they are, to Congress? And John discusses this in his piece today, and it's a really important issue that needs to be thought about and perhaps addressed by Congress before we get to that moment in time.

[Benjamin Wittes]

So I just want to say on this this is a problem that Paul, you worked on specifically during the Starr investigation, and it's actually an aspect of the Starr investigation on which I wrote a book, which is the interaction between the investigative prosecutorial function under the old independent counsel law and the sort of truth commission function which is embodied in the old statute in the final report requirement, which of course, does not exist for the special counsel in the same way, and also, at least as Starr interpreted it in the impeachment referral language of the old independent counsel statute, which he used to write a quite capacious and full document, which I think you would know this better than I, but I think he wrote with no particular understanding or expectation that Congress would dump the whole thing in the public's lap, essentially unread. And so I'm interested, Paul, in your I have some of my own thoughts, but I'm interested in your thoughts on what's the right way for Mueller to understand his reporting function to Congress in reference to its impeachment power, particularly given that he's not operating under the old statute. And it was partly the use of the statute for this purpose by you people that caused Congress to not renew it, among many other things.

[Paul Rosenzweig]

Of course, my historical sense is that the Truth Commission investigative report functionality of the independent counsel was the most pernicious aspect of its existence. It authorized an unaccountable prosecutor to lay things before the public in ways that proved to be very corrosive, not because they were necessarily right or wrong, but because they occurred outside of the normal bounds of process. Not to say that it was a statutory because it had a statutory authorization, but that authorization was just a bad idea. If Robert Mueller were listening to this podcast, my recommendation to him on that basis would be you have no reporting requirement at all. You should exercise your functions just as you are any other special prosecutor. If you have crimes, bring them. If you don't, close it if you want. If you think you need to make a report, there is a mechanism we can convene a special grand jury, which is a statutory provision that that is allowed to conduct investigative reports, but that requires authorization, presumably here from the Attorney General, the Deputy Attorney General, though he's probably going to recuse himself any day now, given that there's an obstruction of justice investigation that involves him. So maybe the Associate Attorney General. So you cannot I and I would certainly be opposed to an ex post action by Congress to retroactively authorize a report from Mueller after he'd been appointed under the regulations. That seems to me like Trump only law and a. I mean, I've written about this a number of times. I don't think that we defend norms by creating new, aberrant norms of behavior. Mueller, if he finds no criminality, that's the end of it. And that's his job. Congress has to do its job.

[Katerina Smytinov]

Hi, I'm Katerina Smytinov. You may have read my analysis on NATO's eastern flank. I am a Belarusian scholar in exile and I found a home for my work here at LawFair. At Lawfare, we bring together diverse voices from inside the US and people like myself to provide clear, non partisan analysis on emerging tech law and global security. We are a nonprofit. Everything we do is free and accessible. But that only works because of support. Support from listeners like you. Head to lawfordmedia.orgsupport to become a material supporter. Your support helps us stay independent. Thank you for listening.

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[Benjamin Wittes]

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So Jaworski did an impeachment referral in the Nixon administration in the Watergate investigation. That document has, interestingly, never become public because it contains a whole lot of grand jury information. I think it is still under seal, but it has been characterized in some depth, both in Jaworski's memoir and in the memoir of his I forget the name of the fellow. It's a wonderful book, the memoir of his spokesman, and he characterizes it as a very spare report that simply lists statutory require, you know, statutory law, and then quotes grand jury cites grand jury transcripts that may constitute violations of those statutes. So here's my question. I agree with you that Mueller is a prosecutor and the right way for him to behave is as a prosecutor. But if we hypothesize that you guys are right, and I suspect based on the current record, you're right, which is that there's a serious, there's a serious criminal obstruction of justice question. But when you actually get down to analyzing what you could prove in court beyond a reasonable doubt about the specific elements of specific offenses under Title 18, it's going to be a very hard case to make. And so in your prosecutorial hat, you say, okay, we've gone through all of it, we've checked all the boxes, we're not going to bring a case here, especially because he's the President of the United States. And there's this question about whether we can. But, boy, there's a rip roaring question that the House Judiciary Committee should consider under its impeachment authorities based on the evidence that we've collected in front of the grand jury that we've convened. So do you, I agree with you, you don't follow the Starr model. But do you do nothing or do you follow the Jaworski model?

[Paul Rosenzweig]

What's to stop the House Judiciary from conducting that investigation itself? Right now, if Mueller does even a Jaworski and your characterization of his report is, I think, an accurate one, even if you do a Jaworski, that's the prosecutor, you know, putting his thumb on the scales and trying to push, push it, you know, Congress, there's no secret out there. If he uncovers something that is completely not in the public record, you know, some connection between Trump and the Chinese that nobody is, this is a hypothetical, podcast, listeners. But something that is not in the public record, then he has a problem because the Congress can't even bring itself around to investigating that of which it is unaware. But there's no mystery here for the House Judiciary Committee. Enough of the facts are out there that if they're interested in this, they can conduct their own investigation.

[Benjamin Wittes]

Okay, so that's a. But that's a really interesting question. There is no talk of their doing that. So my question is, you are, you are now talking to Bob Goodlatt, chairman of the House Judiciary Committee. Your view is that we have two entirely independent tracks here that should be minimally, if at all, communicating with one another. Does that mean that Bob Goodlatte, based on the facts that are now public and Comey's testimony yesterday, has a affirmative obligation to be conducting an investigation of these events because they could, in some theoretical or factual constructions, raise an issue under the impeachment clauses.

[Paul Rosenzweig]

So Bob Inglis is a former congressman from South Carolina. He was, he was in the, on the House Judiciary Committee during the Clinton impeachment times. I think he was even more.

[Benjamin Wittes]

He was one of the managers.

[Paul Rosenzweig]

I think he was even one of the managers. And he was on CNN this morning saying, if this were a Democrat president, the Republicans in Congress would have started an obstruction of justice impeachment inquiry already, and they should do so as well here.

[Benjamin Wittes]

Kerry, what do you think? Does the House Judiciary Committee have an independent obligation to open an impeachment inquiry now?

[Kerry Cordero]

There certainly are a number of facts. I think, Paul, I agree with Paul that there's a number of facts in the public domain that would justify it. I would think that they would want to do so in a way that simultaneously respects whatever investigation the Senate Intelligence Committee is doing. So I think there's a small risk of investigations kind of stepping on one another if, in fact, the Senate Intelligence Committee is now, as it appears to be taking testimony on the obstruction issue. So there's sort of, so maybe there's a timing question, maybe there's a coordination question. And substantively, on obstruction, if the House Judiciary or other members of Congress, if they're waiting for there to be some definitive fact, in other words, one event or act that they think is the bombshell for obstruction, I would suggest that there's a different way to think about the potential obstruction issue, which is that there may not be one specific act by the President. There may not be one specific event that makes the case for obstruction. But instead, what they might be looking at is a pattern of behavior and a sequence of acts and events and statements and tweets and actions that form the basis of the obstruction case.

[Benjamin Wittes]

Yeah, I think if there's an obstruction case here, either as a criminal matter or as an impeachment matter, it's fundamentally about an aggregation of activity, not about any single act. Carrie, I want to before we turn to the what blows were landed on Comey question, I want to ask you specifically about an issue Paul raised, because you are one of the very few people who ever speaks publicly who really has hands on experience with counterintelligence investigations. And, you know, Paul made the point, I think, quite correctly, that one of the good things about the day for the President was that, you know, it really became quite clear that at least as of May 13 or May 9, when, when, when Comey was dismissed, there was not an open counterintelligence file on Trump personally. And so my question to you is, how much good news is that for the president? Is that a. Should we understand that as his conduct is not at issue in these investigations, or should we understand that in a much more limited, much more limited kind of good news?

[Kerry Cordero]

So former Director Comey, in his testimony yesterday, described an internal FBI leadership debate that took place on this particular point, which was that he was, I guess, deliberating over whether or not to tell the president that he was not the technical subject of a counterintelligence investigation. And the way that the former director described it yesterday was that there was at least one individual on his leadership team who disagreed with his decision to tell the president that he was not the subject of an investigation. And that was because, as he described it yesterday, that individual believed that because the FBI was conducting a more comprehensive investigation into Russian influence and potential involvement by the Trump campaign writ large, that that arguably could, whether it did X number of days or months ago or not, that could involve the president because it was his campaign. And I have to say that I found myself during his testimony yesterday aligning with the judgment of that individual who advised him.

[Benjamin Wittes]

In other words, you think it was ill advised of Comey to tell the president that he was not under investigation?

[Kerry Cordero]

I understand the reasons as he has articulated them, and I can respect them, but I find myself in more agreement with the advice that he was given by whoever was that member of his leadership team. I agree with you that the broad scope of the investigation as it relates to his campaign potentially had the potential to involve him, and therefore it was not necessarily an advisable formulation for him to inform the president.

[Benjamin Wittes]

So if you were advising the president right now, which is admittedly not an admirable position to be in, do you

[Paul Rosenzweig]

also have to assume he would take our advice?

[Benjamin Wittes]

No. No. Just like, I mean, if you were whispering in his ear, he is claiming vindication as a result of this. How much vindication should the president be claiming, according to the by in the counterintelligence context, limited to that that his campaign, his underlings, his family may all be subject to counterintelligence investigation, but he personally, at leave as of May 9, is not how much. Like, how should we understand that as to what Trump's exposure is to this counterintelligence investigation? Or just do we just not know?

[Kerry Cordero]

Well, that's the difficulty of a counterintelligence investigation being conducted under the daily public eye. I mean, this is an investigation that should be. Should have been conducted behind closed doors and not in the daily public lie. And so really, for someone advising the President, the advice should be he shouldn't be talking about it at all. He shouldn't be making any claims, he shouldn't be claiming vindication. He shouldn't be talking about it. He shouldn't be tweeting about it. He shouldn't be focusing on it. He should be doing the job of President, and he should be insulating himself from any ongoing investigation because counterintelligence investigations traditionally take a while to conduct and to reach their conclusions.

[Benjamin Wittes]

Okay, let's turn to Jim Comey. Paul, you said he came off as earnest and likely telling the truth. You also say he punctured his own veneer of apolitical G man straight shooterness with the disclosure that he. Called Dan Richmond and asked him to give a document, one of the memos to the New York Times. On a scale of 1:1 to 10, how, how bad a day for Jim Comey?

[Paul Rosenzweig]

Oh, I think it was a good day for Jim. He, he, you know, he came across as straight incredible. And to some degree, his own acknowledgment that he's imperfect strengthens his credibility. Right. He didn't try and hide the connections with the New York Times.

[Benjamin Wittes]

No tech.

[Paul Rosenzweig]

He, he actively volunteered, nor, nor hide his motives. So. But at the same time, the fact that he chose that course of conduct, you know, back in May when he did so does make you think that he was. He sort of has some peak or, you know, dismay or anger at the lies being told about him that drove him to somewhat politicize his response. You know, it was, I think, Jack Kingston, another former Republican, who said, you know, the, the frame in which we should read Comey's testimony is that he's just a disgruntled, fired employee. And that, and that contribute, I mean, you know, that's, that, that contributes somewhat to, to that, that storyline. I, I mean, I don't buy it. Right. But if you're building things to say that, that mitigate the damage of his testimony or that call it, call its veracity into question, you know, everybody knows about the idea that, that people who get fired lie about why they were fired. And so this is kind of plays into that a little bit. It's an. Was a, a 2 on the damage scale of misstep. But he, but since it was an his own goal, you know, he, he could have had it, made it a zero.

[Benjamin Wittes]

What do you think, Carrie? How big a problem is the Comey leaked to the New York Times through Dan Richmond? Meme and what other vulnerabilities emerge from that from the day for him?

[Kerry Cordero]

Well, it gives his opponents and the President who are now going on attack against the former director a talking point. I don't think there's much more damage beyond that. These allegations that are out there in the last 24 hours, that somehow he committed a crime by doing that are just unfounded in law. There's no allegation at all that he released any classified information. He specifically said that he wrote up his notes specifically and deliberately in an unclassified way. So I think the damage done is that he gave his opponents a talking point and not much beyond that.

[Paul Rosenzweig]

Actually, if you want to know what I think was the most kind of penetrating set of questions that were on the what about this comey side? It was really the series of questions that suggested that he was too calculating in not actually being more forthcoming earlier about his perception that the President was improperly trying to influence him. You know, he did say that we gave some thought to whether or not we should, you know, expose this more widely, go to the attorney general, you know, and talk not just don't leave me alone with him, but expose what he had said. And there is some fairness to the argument that if at the time you really thought it was so bad that you had to write memos about it, you perhaps should have been sending up a bigger red flare. And again, that doesn't mean that what he said is untrue, but it's one of those things that any defense lawyer would say is indicative that at least at the time, you didn't think it was important enough to mention to the attorney general. Now you think it's important enough to tell the whole world.

[Benjamin Wittes]

Right? So I actually think that's the more substantial criticism than that after the president fires him and lies about him and lies about the reason for firing, he doesn't consider himself bound in to confidentiality to the president and shares a personal memo that he wrote or even a, an unclassified government document. I'm not even, I'm not even sure which it is, to be honest, but he describes it as his own memo to file. Basically. I don't think that that's. I think that's kind of a trivial suggestion that there's something improper about giving that to the New York Times. That said, I do think there's a more substantial question. Why didn't you ask the president, hey, this is really, you know, why didn't you say to the President, this is really inappropriate. Why didn't you do more at the time. And I, I think the subtextual answer to that question, first of all, I thought his response to that was really interesting, that he, he seemed, you know, cautious, but very amenable to the idea that he was insufficiently bold at the time. And I thought that was interesting that he said, he said, you know, if I'd been more courageous, I might have done X, Y and Z. But the second element that I think is really a key factor here is that all of this looks different in the light of the fact that he was fired. Right. And in light of the statements the President made about why he was fired. And I think the, the analogy I keep coming back to about this is if you have a pattern of bad conduct that may be suggestive in a sexual harassment context in a workplace, and that somebody's getting the feeling that, you know, there's some, you know, if you don't do the following, you might have. Your job might be on the line, and there's some suggestion of that, but it's not dispositive. There's no great direct order. Right. But then you fire her. Right. It all looks very different. And I think there's a. I think there's a bit of that, that all of this looks very different, in fact, because we know what the outcome was.

[Kerry Cordero]

But who was he going to tell he was conducting an investigation that involved, at the time, the Attorney General, who he knew was going to have to recuse himself, and this is a rudderless administration.

[Benjamin Wittes]

Right.

[Kerry Cordero]

No, I think who was he going to tell when the very investigation that he is conducting is about the campaign and individuals who served on the transition of that campaign who then assumed senior government positions?

[Benjamin Wittes]

I mean, I think if I had been counseling him at the time, which I was not for the record, and I had known about this, the question that I might have raised, although I might not have had the presence of mind to do it, is should you tell the Intelligence Committee leadership? Right. Should you sit down with Mark Warner

[Paul Rosenzweig]

and Richard Warner or the Judiciary Committee

[Benjamin Wittes]

leadership, who are you responding and say, I just had an incredibly disturbing conversation with the President that has implications applications for the counterintelligence investigations and some criminal investigations, and you need to know about it. And it's not a direct remedy, but it is at least telling somebody and doing something. So let. We got to close out. But. But thoughts on that. Is that what Comey should have done?

[Paul Rosenzweig]

I. I would have sent it. I would have sent it to the attorney general who had not yet recused, and the then acting with a CC to the then acting deputy attorney general. So you know that it actually made it to an official who was not necessarily implicated in this. I mean, you do understand the inconsistency. You know, this was so extraordinary a meeting that he felt the need to write a memo about it, something he'd never done for Obama. So it's more than just kind of that I'm feeling uncomfortable. It's. I'm feeling so uncomfortable that I'm making a memo for the file, but I'm not going to tell anybody. It's a little bit of a weak spot for him. And I honestly think his answer was the accurate one, that he was overly cautious, he lacked the courage of his convictions, he was being a little bit cya ish and that's okay. Humans are humans, you know, that's the nature of the beast.

[Benjamin Wittes]

What do you think, Carrie?

[Kerry Cordero]

I think that we need to remain open to the idea that there are still, despite as much information as there is in the public domain, there are still aspects of this investigation that have not been revealed publicly. Some of those facts perhaps were relayed to the Senate Intelligence Committee yesterday in their closed session that took place after his public testimony. But there perhaps are reasons that are contained in those facts that are still classified that might explain more his behavior at the time.

[Benjamin Wittes]

We're going to leave it there. Carrie Cordero, Paul Rosenzweig, thanks for joining us.

[Kerry Cordero]

Thank you.

[Paul Rosenzweig]

Always a pleasure.

[Quinta Juresik]

The Lawfare podcast is produced in cooperation with the Brookings Institution. As ever, our music is performed by Sophia Yan. We're getting lots of new listeners these days, so if you haven't already, please do support the podcast and spread the word by giving us a rating and review in the itunes store. As always, thanks watching for thanks for listening.

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