On CNN with Erica Hill and Jennifer Rodgers to discuss whether President Trump will invoke executive privilege for information the House Judiciary Committee is seeking. We also discuss the impact that it is alleged Michael Cohen lied about seeking a pardon.

#Trump #HouseJudiciaryCommittee #MichaelCohen #executiveprivilege #pardon

Will Trump invoke executive privilege? Did Cohen lie about seeking a pardon?

March 5th, 2019

Erica Hill: Bob Bianchi a former head prosecutor in Morris County New Jersey, now a host of Law and Crime network. And a legal analyst Jennifer Rodgers, she was a former federal prosecutor. Good to see both of you today, if you look at this and you just heard the reporting from Caitlyn about what the plans are at the White House. And we hear the term executive privilege thrown out there. Jennifer I’m curious, what are the standards in this case, we look at eighty-one different people and entities, where could executive privilege be applied?

Jennifer Rodgers: Well, that’s a great question, because unlike attorney client privilege, executive privilege hasn’t been litigated very much at all. So, we don’t really know the outer bounds of it. It’s supposed to be something that protects advice between the President and his closest advisors, right. We want the President to rely on these people in areas where others have more expertise then he might. The problem here again, is we don’t really know what the outer bounds are because it hasn’t been litigated yet and I suspect if they don’t like the looks of where things are going, if they don’t like the looks of the Mueller repost, that’s where we’ll see a really broad kind of blanket approach to executive privilege with, if nothing else, will delay things for a while, while that is litigated in the courts.

Erica Hill: And what a respect that has been, attack and receive, delay in the courts, right.

Robert Bianchi: Right, I think to Jennifer’s point, there has only been two cases, there was one in the George W. Bush administration and then the Obama administration for the first time they pushed back on Congress’s right to issue subpoenas it said, we claim executive privileges. And those two cases, while they were in favor of congress’s right to issue subpoenas got so bile mixed up and tied up in the court, and that was even before it went through the apelet process. It has never been reviewed by the Supreme Court of the United States. Eventually, Congress and the President came to an accommodation. But if Donald Trump, who is known to push the areas of constitutional boundaries, and separation of powers, decides to say I am going to full route. Jennifer, I think you would agree, this could go on for years before the court makes a final decision.

Erica Hill: Ah, wouldn’t that be fun. Going on for years. Speaking of things that are still going on, there’s a new report in the Wall Street Journal, that Michael Cohen’s attorneys did want to discuss a potential pardon. That in and by itself is not legal right, to have that conversation. Perhaps not surprising, but is there anything that’s a little fishy or a little wrong here, Bob, or is this just attorneys doing their job for Michael Cohen?

Robert Bianchi: Well, we know with prosecutors, we always say we use cooperating witnesses all the time, that don’t come the best past or backgrounds and always have an incentive or motivation to testify. But we also say, when you sleep with dogs, you can catch fleas. So, when you go in there and you’re going rely upon him, whoever is advancing him as a witness or somebody in their favor, he has to be pristine from this point forward with regard to all the data and information he gives. And If he makes a bold-faced lie, we don’t know if that’s true yet because these reports of where data and information is coming from, we don’t know. Substantially compromises the rest of his testimony, especially in my mind most importantly, when he said there was a phone call that one on that I listened to with Rogers Stone speaking to the President about Julian Assange and the email dumps that were coming. And if the conversation can be substantiated and we find out the Cohen lied again, if in fact that’s proven with regard to this pardon issue, then I think it’s pretty much substantially undermines the value of his testimony.

Erica Hill: Well, you’re talking about the value of his testimony, when you’re looking specifically at the pardon issue. In that reporting of Wall Street Journal said that the attorney and I’m quoting here, “left the impression that if Michael Cohen couldn’t rely on a pardon, he might cooperate.” Did that also undermine what we’ve heard from Michael Cohen?

Jennifer Rodgers: Well listen, there’s no question that when you get yourself into criminal trouble as Michael Cohen clearly was after the FBI executed search warrants against him, they look at all of their options that’s what people do right. You think can and should I cooperate, should I fight it, if I fight it, you know, how far should I go, who should I hire as lawyers? You do all of those things. In this case there was kind of an extra wildcard thrown in which is, hey like, I could get a pardon here because the President of the United States is my former client and I would be testifying against him right. That’s a situation, that really no other cooperator-

Erica Hill: That’s very rare.

Jennifer Rodgers: Except Cohen, and all these other folks, are facing so it’s not at all surprising that he would kind of take stock of all of these options. I think that’s completely normal and I don’t even think it’s a big deal if his lawyers in those early day’s kind of, you know, poked around a little bit, whether a pardon was in the offing. The issue was, like Bob says is, you know, did he lie about it, and I don’t think he probably committed perjury but even if he was just misleading in the sense of saying, no, no, I didn’t go for that, if he knew his lawyers had. Then he has a real credibility problem.

Erica Hill: Right, because when he was asked about it, he said specifically I never asked for a pardon, which you know, could be a hundred percent truthful because if his attorney asked, he wasn’t the one doing the asking. I also want to get your take on this, a representative Lewin Buyer are calling for calling for a criminal investigation into Jared Kushner’s security clearance. And what’s interesting is they note in their letter, look we know that lying is not a crime, however they point out, if you did lie on your questionnaire, your application in essence, for security clearance that’s an issue. Is this something that has legs? Do you think?

Jennifer Rodgers: I don’t think it has legs as a criminal issue I mean you know Congress hasn’t oversight role here it is entirely appropriate for them to look into this decision-making process. What impact the President had on it, whether he interfered, all of that is fair game. I don’t think we’re going to see a criminal case here, even if they do find that Kushner misled people on forms, that’s typically not a criminal issue, either in the normal case. So, I don’t think it will go that far but I think the inquiry is fair.

Erica Hill: What’s your take on it?

Robert Bianchi: I kind of agree with that but also look at it a little more from a pragmatic standpoint. That would have to go through the department of justice in order to be prosecuted if they were even going to do that of which Donald Trump has complete authority over the justice department. So, I just don’t think it’s going to be something that’s going to go to that level, but I think it’s something that we really need to look at as a country. I filled out lots of applications and I was concerned about making sure I was exactly correct in everything I said because I follow those applications on the penalty of perjury. In this particular situation it wasn’t just a one off, it’s over and over and over again.

Erica Hill: Yeah, it’s not I forgot that one thing.

Robert Bianchi: In my prosecutor temperament, I don’t know about you Jennifer is sometimes you got to make a statement. Sometimes you got to say these forms have meaning, these oaths have meaning, and if they’re continually repeatedly violated, I need to make a point of it, even if it is successfully doesn’t come to a guilty conviction.

Erica Hill: Is Jared Kushner the right person to make that point? That’s a tough one.

Robert Bianchi: Well, he could be because again this is something that’s going on and on and on. He’s had a lot of involvement in foreign affairs, is another thing. And a lot of this has to do with the disclosure of finance and foreign affairs.

Erica Hill: Or the lack of disclosure?

Robert Bianchi: Yeah, the lack of disclosure, and one of the big things our founding fathers were extremely concerned about was the idea that our government officials could be corrupted by the influence of outside foreign influences. To me it goes to the core of the concern of the founding fathers and why there’s a separation of powers in order to make sure that does not occur. There’s a lot of serious issues here.

Jennifer Rodgers: The other thing is, there’s a lot of these other people that they were talking about as having potential criminal liability, Don Junior, you know, and others kind of in the President’s family. Kushner wasn’t involved in many of those things, he’s certainly not implicated as far as we know in the campaign finance violations and such. So, to the extent that they want to make a statement against Kushner, this may be the kind of easiest, cleanest way to do it.

Erica Hill: Jennifer, Robert, always good to see you.

Robert Bianchi: Good to see you.