What are the ramifications of Trump’s FBI spy claims?

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• Amna Nawaz:

  We now break down some of the broader legal questions here.

  A short time ago, I spoke with three people with extensive experience at the Justice Department.

  Michael Mukasey served as attorney general during the George W. Bush administration. He also served as the chief judge of the United States District Court for the Southern District of New York. Jack Goldsmith served as an assistant attorney general during the Bush administration. He is also a professor at Harvard Law School and co-founder of the Lawfareblog.com. And Frank Montoya is a retired FBI agent who oversaw national security investigations. He joins us via Skype.

  Gentlemen, thanks for making the time.

  Michael Mukasey, I want to ask you first, the president certainly has constitutional authority to direct the work of the Justice Department. The criticism here, though, is that this specific directive wasn't about the law; it was about politics.

  Did the president cross a line here?

• Michael Mukasey:

  I don't know that he crossed a line.

  I think that it was appropriately responded to by Rod Rosenstein. And that should be — that is, that it was going to be referred to the inspector general, who in the ordinary course would take a look at a matter like this and see whether it had been done appropriately or inappropriately, and that would be the end of it.

• Amna Nawaz:

  Rosenstein responded, as you mentioned, the deputy A.G., by saying that this will be a matter that the inspector general takes up.

  But in response to the president's first action to even demand such an investigation, do you feel that was completely within line?

• Michael Mukasey:

  Look, I — completely — it's not something that's happened in my experience.

  On the other hand, there's a lot that's happened with respect to this president that hasn't happened in my experience, and he's not a person with a fine sense of detail. So do I think it's unusual that he would want this looked into? No. I don't know that he would publicly demand it be looked into, but, in any event, it's not inappropriate to look into it.

• Amna Nawaz:

  Frank Montoya, you spoke with one of my colleagues earlier. You called it an all-out assault from the president. Why?

• Frank Montoya:

  Well, I think it's — in the first case, or in the first instance, it's very fascinating that he's doing the very same thing that he's accused the Obama administration of, and that is driving or demanding an investigation.

  But, beyond that, there is a well-regarded separation between the White House and the independence of the Department of Justice and in particular the FBI and the conduct of its investigations.

  And whether it's an appropriate request or not, it certainly shouldn't be done over Twitter. And it shouldn't be done in a public way, as it is being done, because all that does is undermine the process, processes that are not only time-honored, but they are legitimate, they are legal, and they have stood the test of time.

• Amna Nawaz:

  Jack Goldsmith, let me ask you, now, this isn't the first time the president has come up against his own law enforcement agencies.

  But what you have you noticed about the relationship between those two?

• Jack Goldsmith:

  You're right. The tweet over the weekend comes against the backdrop of almost a year of unprecedented bullying and pressure and name-calling by the president about the Russia investigation and threatening and questioning the integrity of people he appointed, to the FBI director or the deputy attorney general.

  All of that is unprecedented in the post-Watergate era. We have never had anything like this level of or anything close to this level of presidential interference and threats with an ongoing investigation.

  I can't emphasize how tough it is for them to be conducting this investigation. Usually, the president in these high-stakes events has the back of his Justice Department officials. And here the president not only doesn't have their back; he's attacking them and trying to undermine the entirety of what they're doing.

• Amna Nawaz:

  Let me ask you about the position that the deputy attorney general is in now, Rod Rosenstein. Did he have a choice in responding to the president's demand in this way?

• Jack Goldsmith:

  I suppose he had a choice, in that he could have resigned, but he is in a very tricky position, because he's supervising an investigation of the president's associates and the president, and at the same time, he works for that president, who has the authority to fire him and make suggestions and orders about the investigation.

  So, he finds himself with very conflicting responsibilities. I think that he has mainly tried to protect the integrity and independence of the Russia investigation.

  And I think the step he took in response to what President Trump demanded, by sending the issue to the inspector general, who basically will find out facts, figure out what happened, he has a related investigation going on, I think that was a nimble compromise on his part.

• Amna Nawaz:

  Michael Mukasey, that seems a sort of remarkable position to be in, though, for Mr. Rosenstein. Either respond and take action on the president's request or resign. Were those his only two options here?

• Michael Mukasey:

  I can't — if there's a third, I can't think of it.

  He made the — I think he made the appropriate response. I should say that, as what Mr. Montoya said about his having done this in public, given the fact that he got upset and did it at all, frankly, I would prefer that he did it in public, rather than did it in private, so that we don't know about it.

  Now we know what he said, why he said it and what the response was, and it's all out in the open.

• Amna Nawaz:

  Well, Frank Montoya, let me ask you now, as a former FBI agent, the revelation of the FBI source in reports seems to have spurred some of the president's tweets and this last directive for sure.

  Confidential informants, like the one that was reported on, give me a sense sort of how often they're used, whether the action that was detailed in that report is unusual, because the president characterized it as a spy planted in his campaign. Is that your read on what happened?

• Frank Montoya:

  Absolutely not.

  The use of informants is — it's a common practice in all kinds of investigations, whether they're criminal in nature or whether they're national security and counterintelligence in nature.

  The fact of the matter is, the allegations were made. They weren't fabricated by anyone in the FBI or the Department of Justice. The FBI was just using tools at its disposal, tools that it uses all the time in these kinds of investigations, to ferret out the truth.

• Amna Nawaz:

  Jack Goldsmith, there is another issue here between which the president and the FBI have — and the Justice Department, rather, have sort of come to loggerheads.

  There are the documents, right, that the Justice Department has that could identify who the informant was. House Republicans want to see them. They have made that request. The president has supported that request.

  What's the protocol here? Would it be appropriate, current given the current conditions, for the Justice Department to be turning those documents over to House Republicans?

• Jack Goldsmith:

  The Justice Department would never, under any circumstances, turn over information about an informant in an ongoing criminal investigation to the Congress.

  That's just standard executive branch practice and standard executive branch view of presidential prerogatives. Deputy Attorney General Rosenstein has actually been amazingly accommodating, maybe too accommodating, to some other requests, but on this one he had to draw the line.

  The remarkable thing is that, usually, when the Justice Department is trying to protect the prerogatives of the executive branch, it has the support of the president. Here, the president is encouraging and on the verge of ordering the Justice Department to turn those documents over, and he actually does have the authority to do that.

  I think that would cause a real crisis in the Justice Department if he ordered the Justice Department to burn a source to Congress. It's completely unprecedented, in my experience.

• Amna Nawaz:

  Michael Mukasey, what do you make of that? Is there a crisis brewing if the president follows through on that support of his request with an order to turn the documents over?

• Michael Mukasey:

  I think the answers you heard illustrate nicely the distinction between being correct and being right.

  The answers you just heard were correct. But we're not just dealing with an informant in a normal criminal case. And we're not dealing with an informant who has remained anonymous. In fact, the people who disclosed information about him, who were some of the people who support the investigation, disclosed enough about him so that his identity has become public.

  And, in fact, a number of news organizations have printed it. So we're not talking about some deep, dark secret. We're talking about something that, in fact, has already been disclosed and has been disclosed in large part because of statements that were made by people who support the existence of this investigation about the informant.

• Amna Nawaz:

  Let me ask you, Michael Mukasey, because you mentioned this is an unusual president who has surprised even you in the past.

  The institutions and norms in America, they can certainly be bent. But I'm curious. Based on what you have seen, is there a point at which you're worried that those same norms could break?

• Michael Mukasey:

  Of course one always worries about whether there's a point at which norms could break.

  But, despite some of the antics going on, on all sides, and despite all sorts of cries about constitutional crisis, I think that the institutions of government, by and large, are holding up fairly well.

• Amna Nawaz:

  Frank Montoya, what do you say to that?

• Frank Montoya:

  First of all, I don't think there's antics on all sides.

  Just look at the conduct of the special counsel and the way his focus is determinedly on the investigation itself. The only public utterances from him or disclosures from him are the ones that are in the filings in various courtrooms.

  But in terms of the — you know, the investigative process, the prosecutive process, it's been pretty stellar. The integrity of the investigation has been held, I think, to a very high standard and will continue to be so through the end of the investigation.

• Amna Nawaz:

  Jack Goldsmith, Michael Mukasey and Frank Montoya, thank you for your time.

• Michael Mukasey:

  Thank you.

• Jack Goldsmith:

  Thank you.