Podcast Cobb Intv - Part One

JON KARL: Welcome back to powerhouse politics. We're going to get Ty Cobb on the phone in just a moment. …

JK: Hey is this Ty Cobb? TY COBB: It is Ty Cobb. JK: Jonathan Karl here at Powerhouse Politics ABC News. How are you? TC: Hey Jonathan. Good to talk to you. JK: Thank you very much for joining us. I want to I want to start off with some general questions I know you are. You are of course the special White House counsel you are not the president's personal attorney but you represent the institution of the presidency in these in these dealings with the special counsel is that a correct way of describing what you do? TC: That's close enough. JK: Ok so, so I want to start with some some broad questions about the presidency itself. Can a subpoena be used to compel a president of the United States to testify? TC: So there are circumstances historically where you know in the Clinton matter he was forced to testify in the Jones case. JK: Right. TC: Those are different circumstances that would apply here. And the issue of a sitting president being called before a grand jury never got litigated in that case because Clinton and his counsel made arguments that caused the special prosecutor there the independent counsel there Ken Starr to withdraw the subpoena and he appeared voluntarily. So that was never litigated. So it's still an open question. JK: What would you say relevant to this case if there were an effort and we understand John Dowd has told us that the special counsel did raise the possibility of compelling the president to testify would you - would you protect the institution of the presidency and fight such an effort like that all the way to the Supreme Court? TC: Well I mean I haven't been forced to make that decision. And you know if and when I do it'd be a privileged decision as are all the discussions with Mueller shouldn't be discussed publicly. So I'm  – I’m in a little bit of a box under the ethical constraints that lawyers operate in terms of discussing that. But in terms of my duties my duties are to protect the presidency now and also to protect future presidents as well. Future White Houses. So it would certainly be something if it was if there was a subpoena battle which I hope there won't be. We would have to make the judgment that you laid out. JK: Let me ask you two other general principle questions and then we'll get into some specifics. Can a president of the United States be indicted?

TC: There are two office of legal counsel opinions in a department of justice on that one from the Nixon era and one from the Clinton era. And both of those opinions say that a sitting president cannot be indicted and that's the policy and practice of the Justice Department. JK: And I suppose this is a related question can a president of the United States pardon himself? TC: You know that's a question that also has never been decided. There There are experts on both sides I can assure you that you know pardons have not been part of the lexicon here in my in my time. And you know they're neither. JK: You've had no discussions of pardons at all in your current job at the White House? TC: Well I mean I learned about the Scooter Libby pardon in consideration of the Jack Johnson pardon but you know not nothing – nothing all related to the Russian events. JK: So you've heard nothing of no consideration consideration whatsoever of pardoning Michael Cohen Michael Flynn? No. nope. RICK KLEIN: Ty Cobb it's Rick Klein here. I want to talk about that. TC: Hey Rick. RK: Good to be with you. So I want to talk about the question list that we saw came out in the New York Times earlier in the week and I know you're not going to want to talk about specific questions questions and answers in this but your read of this list. Is there anything that Mueller's Mueller's team is pursuing here that you view as out of bounds as inappropriate inappropriate to even be asked? TC: So quite honestly and I hate to be a dud guest on this but quite quite honestly those discussions are ongoing between the president's lawyers  – Jay Sekulow, Rudy Giuliani, Marty and Jane Raskin and I'm not involved either of them peripherally with regard to certain white house equities in those discussions. So I can't really even confirm or deny the question aspects of it but you know that I will say that all of the discussions between the president's lawyers and the special counsel's office had been highly professional not aggressive. A lot gets accomplished. There's a lot to work through and you know they're still working it through. I mean at the end of the day everybody's going to have some tough decisions to make but they're all of the discussions leading up to that are quite civil and quite professional. And I've got nothing bad to say in terms of the way that we've been treated by the special counsel. RK: So the argument put forward by Joe diGenova who has been an outside adviser to President  – President Trump almost came aboard his legal team and it was approvingly quoted apparently by President Trump on Twitter just this morning just this morning that the questions themselves are an intrusion on presidential power. Do you share that view that there are some things generally that that can't be asked because those even asking the question intrudes presidential power? TC: So I understand the argument that Joe makes. Joe's been you know aggressive advocate on behalf of the president and you know done a great job I think in terms of issues spotting and you know blocking. You know raising issues that are worthy of consideration. Certainly many of the questions you know go to the heart of the president's many the questions in the article go to the heart of a president's Article II powers under the Constitution. So I understand Joe's argument in that regard but it's not something

that I'd be in a position to give a legal opinion on because you know any legal opinions I give on that are will be privilege. RK: Do you...do you think that Bob Mueller leaked the list or his team? Absolutely not. I have no doubt that he did not. Who do you think did it? Where were would it come from? TC: You know I don't want to speculate on that. I think it's very difficult to see who if anybody benefits from the leak of that other than people who have been trying to sabotage the possibility of an interview and or generate chaos round here and that list is endless is too long for me to go through. But I'm not pointing a finger at anybody. JK: But to be clear you say you say that that list was not leaked by Special Counsel Robert Mueller or anybody in his office? TC: I have a high degree of confidence that you know that that's not the case based on that you know the Times – the Times people themselves and you know ongoing discussions with the special counsel. JK: But it did not come from the special counsel? TC: And then as the piece reported although it got lost in translation on  – on many networks and print organizations that you know the Times in a blaring sentence made it plain that it didn't come from the president's legal team. And yet you know Rudy had immediately accused of leaking and there's not a chance in hell that he did it. JK: So I want to ask you something else. We heard from  – from John Dowd again the former till recently the president's personal lawyer on all of this. He told us that he told the special counsel, “This isn't some game you are screwing with the work of the President of the United States .” Is the special counsel screwing with the work of the president of the United States? TC: So first off any discussions with Mueller Mueller shouldn't be discussed in public certainly by a lawyer for the president. I don't I don't I don't know. I wasn't at that meeting. But in my view Mueller is doing you know what he was assigned to do. I mean he didn't he didn't start the investigation. He got pulled in by Rosenstein. Rosenstein and was given an assignment. You know he'd been working that. People can argue about whether or not there's a lot of sprawl. I understand those arguments but at the same time again he didn't he didn't launch into this on his own. He was he was given an assignment. assignment. I think it's important that having been a special trial counsel to an independent counsel in the past I think it's important that the Justice Department exercise its oversight in these matters. And at the moment you know most of the discussions that we've had with them have been you know quite  – quite professional. JK: Does the president still look forward to testifying to talking to Robert Mueller? TC: I think as Rudy said and Rudy and Jay and Jane and Marty the president's personal lawyers you know they'll make that decision or make a recommendation to the president on that. I don't think anything's off the table. So notwithstanding the, you know, landmines that the last couple of weeks. You know I think things are still in a lane working toward a resolution of the interview issue. You know I hope that I hope it works out amicably but that that's in the hands of his personal attorneys.

JK: But you yourself said back in January as the president told me you echoed those words. You said that you thought that he was looking forward to the interview or suggest the interview was going to happen. Do you think it is that interview less likely likely to happen now than it was? TC: Yeah, on that, I don't know. You know I'm not because I can't really say how likely it was at any given time but it's certainly not certainly not off the table and people are working hard to make decisions and work toward an interview. And assuming that can be concluded favorably there'll be an interview assuming it can't be assuming an agreement can't be reached. You know then it'll go a different route. RK: You mentioned these landmines. landmines. I think a lot of us have talked about is the Michael Cohen affair that apparently has really upset the president. He's tweeted about it. He does not feel like he is being treated or his lawyer is being treated fairly that Michael Cohen matter. How how does that though impact from a legal perspective any of these questions that they could present themselves? I'm trying to understand the argument for not sitting down with a special counsel not cooperating with this investigation. TC: So I can't be 100 percent sure of this but what I what I recall from reading the article was that there weren't any Cohen questions that I think on his peripheral involvement in a in a pre race hotel thing in Moscow that was an option that you know fizzled out after a few months. So the Cohen thing does upset the president I mean any time that your personal lawyer you know has communications seas between you and that lawyer. You know I don't I don't know on purposes in the United States it wouldn't be upset about that. I think the president you know understandably is trying to accomplish so much domestically and internationally internationally that this is this this is an obstacle for him in that regard. He'd like to get it behind him. I think that's one of the reasons he was eager to sit down with Mueller and you know may well still get that opportunity. RK: Is it impacting the presidency right now having to deal with this is that what he's suggested as much on Twitter that he's talking with North Korea trying to denuclearize is it impacting day to day? TC: Yes. JK: How so? TC: Well I mean this is a gentleman who doesn't sleep, you know, but maybe three or three and a half hours a night he works you know furiously the rest of the time. He likes to get things done. He goes at a pace that people have a hard time keeping up with. And you know he's got to take time out of his day da y frequently to deal with this. JK: So I wanted to also ask you. We heard Rod Rosenstein yesterday say that the Justice Department would not be extorted. He was referring it was a response to a question about some of the president's strongest allies on Capitol Hill drafting articles of impeachment to impeach the deputy attorney general. What do you make of this of o f this talk of impeaching Rod Rosenstein? TC: Well I have to let you know the committees committees deal with that I can't I can't really occupy myself with that too much. On the other hand, it's certainly been an objective of the president that his administration not be held in contempt or criminal contempt as as the previous administration leaders that the Justice Department were he'd like to see cooperation between the Justice Department the FBI and in Congress. But as far as I know he's not weighed in on the impeachment issue. And I have I have great respect for Mr. Rosenstein. He has been a decorated public servant and I can  – I can understand

his position. On the other hand, Congress has certain powers and so does he and so do others in the government and relationships are not perfect between the Justice Department and the Hill. As you all know and anybody reading the paper or listening to the news also knows so the president doesn't have a position on the impeachment issue and I've not heard one stated. But Congress certainly certainly has the right to raise objections when you know k now they are not getting access that they believe they're entitled to agendas. And the Justice Department has the right to argue and argue its position. So I think that's a battle that's raging elsewhere. And I'm  – I'm – I’m busy on my own behalf. JK: It's striking by the way to hear you talk in relatively glowing terms terms about Rod Rosenstein in all of this and to hear the president repeatedly lash out at Rosenstein saying that you know he says that Mueller is the most conflicted of all except perhaps for Rod Rosenstein. What are your conversations with the president like on Rosenstein why is he constantly lashing out at his own deputy attorney general? TC: I think it's the  – I think, so as best I recall, that most of those comments are directed to the deteriorating relationship between the Justice Department and Congress and trying and you know I think he may be trying to jumpstart the Justice Department to improve those relations. I'm sure that Rod is going to do that. So but I can't I can't speak for the president on all his tweets. I know he feels that it's important to get his message out in that in that form and I don't have any control over that. JK: Because in one of those tweets he said Mueller is the most conflicted of all except Rosenstein who signed FISA and Comey letters no collusion. So they go crazy. Do you understand? I know it's  – it's hard to ask anybody about the president's tweets except the president. But do you understand what he means by Mueller is the most conflicted at all, what's he referring to there? TC: Yeah. Again I can't really interpret that without you know without making a legal argument. And you know I don't want to I don't want to be making legal arguments publicly to the extent you know on the points like that to the extent that I have discussions with the president in private and appropriately so. RK: You said earlier that an interview with Mueller is not off the table is firing Mueller off the table? TC: You know he is not been fired. I think I've been quoted you know about 90 times in this in the duration of this matter saying that Mueller is not being fired. I know I know Bob and I like and respect him. And there's certainly no plans to terminate him. RK: What's your best read on where this wraps up? We've been hearing for a year now— TC: It's hard to say. I mean so you know every  – every time it gets you know every time that you know there's a possibility to sort of close things something happens that delays things things a month or so. I mean there's some good examples. You know the Wolfe book I mean basically you know interviews were all wrapped up for the most part and that necessitated bringing in new witnesses and bringing back old witnesses the you know the FBI report Inspector General General report also raises new issues and I'm sure the Comey report and the Comey book raise raised new issues. Every  – every – every day that goes without a resolution you know is a frustration to the people involved. But you can't you can't prevent history from marching on or people from illegally leaking things. JK: So I know you have to go if you want to go through a couple of quick things before  – before we let you go. TC: It's not that I have to go I mean you guys told me this would be seven and I'm I'm at 21  –

RK: Enjoying the conversation. OK. JK: Thank you you're very – very compelling guy to talk to you so. I wanted to get to this another again I'm – I'm just we're trying to understand the president's position on all this stuff. TC: Yes, and I respect that. And it's just there's certain limitations limitations on me as a lawyer. JK: Ok, so because you understand the powers of the presidency better certainly better than us better and better than most people when the president tweets as he did at some point I have no choice but to use the powers granted to the presidency and get involved. Do you have a sense of what he's referring to there? TC: I do not. I haven't discussed that tweet with him. JK: OK, and on this question of whether or compelling a president to testify as we have the example of what happened in Watergate with the Watergate tapes it's not obviously an exact comparison but the Supreme Court in that case ruled 9-to-0 that the president could be compelled to turn over the tapes and the tapes were turned over. If a case now were to get to come to the Supreme Court now the question of compelling the president to testify before a grand jury – do you have any reason to believe that it wouldn't be a similarly lopsided decision that the Supreme Court as it has done in so many other cases before would would decide that the president is basically not above the law on this and can be compelled to testify? TC: So I'm not going to handicap you know how that would end up. And I hope that that doesn't go to the Supreme Court but it's definitely under the under under the OLC opinions. It's definitely an unsettled question and people would put forth their best arguments. The president as the presidency was designed by the founders to have its own extraordinary powers. Congress was designed to have its own extraordinary powers and the judiciary was designed to have its own extraordinary powers. You know there are there are significant precedents out there subsequent to Nixon that you know establish a bar in terms of you know what the Justice Department or an independent counsel may be entitled to from the White House and that you know you're absolutely right on the on the 9-0 opinion. You know there are issues views of either the you know pulling the president himself into into a legal proceeding that I think would have to be litigated before any – any resolution of the issue was achieved. Unless they can reach a reach an agreed upon process which is I think everybody's hope. RK: Well Ty Cobb this has been a fascinating conversation conversation and we will let you go. But I need to ask as a lifelong baseball fan and Jon is too. I've read you say that it's family lore that you've got a really distant family relationship with the baseball legend legend Ty Cobb. Do you know k now what the -- what – their relationship is? I'd be so curious. I’d do ancestry.com. ancestry.com. TC: So as as me. I mean I don't want to I don't want to make too much of this. But  – but the stories from our grandparents they're there my grandfather had 12 siblings so I've heard these stories a lot over time. But he was purportedly a second cousin of my grandfather. And I think even in West Virginia that's not a blood relationship anymore. Not to offend West Virginia. JK: And Ty Cobb Should Pete Rose be in the hall of fame?

TC: You know I think that's an excellent question. I think certainly if he goes I mean I'm not I'm not very long on that I think. I mean I certainly understand understand why he's not in but if he goes in you know people like Shoeless Joe definitely will. JK: All right. Ty Cobb thank you very much for joining us and powerhouse politics and going longer than planned. We really appreciate your time. TC: Not at all. JK: We look forward to talking to you again hopefully soon. TC: Enjoyed it very much. Thank you. JK: Thank you sir.