On this “Face the Nation” broadcast, moderated by Margaret Brennan:
Rep. Daniel Goldman — (D) New York
Rep. Chris Stewart — (R) Utah
Lucius Outlaw III — Associate professor of law at Howard University School of Law
Chris Whipple — Author of “The Fight of His Life: Inside Joe Biden’s White House”
Larry Pfeiffer — Director of the Hayden Center at George Mason University
Michael Morell — Former CIA deputy director, CBS News national security contributor
Click here to browse full transcripts of “Face the Nation.”
MARGARET BRENNAN: I’m Margaret Brennan in Washington.
And this week on Face the Nation: We’re just two weeks into the new year, and Washington is already swamped in scandals.
The questions engulfing the Biden administration about the top secret documents discovered late last year and last week continue to grow, as we learned yesterday of even more classified pages discovered at his Delaware home just hours after the appointment of a special prosecutor.
Unsurprisingly, there have been cries of hypocrisy and promises of subpoenas from Republicans.
REPRESENTATIVE STEVE SCALISE (R-Louisiana): I wonder why the press isn’t asking the same questions of him as vice president taking classified documents that they were asking President Trump.
MARGARET BRENNAN: But reporters have expressed disbelief.
QUESTION: Classified material next to your Corvette. What were you thinking?
JOE BIDEN (President of the United States): My Corvette is in a locked garage, OK? So it’s not like they’re sitting out on the street.
MARGARET BRENNAN: And exasperation with the administration’s response.
Republicans are facing their own scandal with the most notorious member of the freshman class, New York’s George Santos. The questions about who knew what and when about George Santos, who has admitted to falsifying his resume and is now under multiple criminal investigations, also continue to grow.
Some New York Republicans have called for him to quit, but the party leadership is circling the political wagons, as Santos is a desperately needed vote in the House.
QUESTION: Are you going to take any action against him at this point? Are any of these allegations acceptable to you?
REPRESENTATIVE KEVIN MCCARTHY (R-California): What are the charges against him?
REPRESENTATIVE KEVIN MCCARTHY: Is there a charge against him? You know, in America today, you’re innocent until proven guilty.
MARGARET BRENNAN: Now there are new reports that some in Republican politics knew Santos was sketchy well before he was elected.
We will talk with former federal prosecutor turned New York Democratic Congressman Daniel Goldman, plus Utah Republican Congressman Chris Stewart.
Finally, a closer look at a trend that Martin Luther King Jr. told Face the Nation he was concerned about and where we stand today.
It’s all just ahead on Face the Nation.
Good morning, and welcome to Face the Nation.
The classified documents controversy facing the White House grew yet again this weekend with the news that five more classified pages were found on Thursday. The investigation began back in November, when Attorney General Merrick Garland assigned Chicago U.S. attorney John Lausch to look into the discovery of documents that included some top secret information in a D.C. office once used by Mr. Biden.
Although that discovery was six days before the midterm elections, the first time the public heard about it was last Monday, when the White House responded to inquiries from CBS News.
CBS News correspondent and Weekend News Saturday anchor Adriana Diaz broke this story. And she is back in Chicago with the latest — Adriana.
ADRIANA DIAZ: Good morning, Margaret.
We now know of roughly 20 classified records recovered from where they should not have been, an office at a Washington think tank where Mr. Biden spent time after he was vice president, Mr. Biden’s garage in Wilmington, and in a room next to that garage. That’s where the latest five pages were discovered Thursday evening, extending what’s become a complicated saga.
ADRIANA DIAZ (voice-over): The latest discovery of classified material came just hours after the attorney general, citing extraordinary circumstances, announced to the appointment of special counsel Robert Hur.
MERRICK GARLAND (U.S. Attorney General): This morning, President Biden’s personal counsel called Mr. Lausch and stated that an additional document bearing classification markings was identified at the president’s personal residence in Wilmington, Delaware.
ADRIANA DIAZ: Thursday evening, special counsel to the president Richard Sauber, who says he was selected to turn over that additional document because he has security clearance, said he went to the House along with DOJ officials.
“While I was transferring it,” he said in a statement Saturday, “five additional pages with classified markings were discovered.”
Republicans have pounced on an administration that has prided itself on transparency.
REPRESENTATIVE KEVIN MCCARTHY (R-California): They knew this has happened to President Biden before the election, but they kept it a secret from the American public?
ADRIANA DIAZ: Legal experts say there are some similarities, but also some key differences between President Biden and former President Trump, who is under a separate special counsel investigation, not just for potentially mishandling hundreds of classified documents found at his Florida residence last year, but also for thwarting attempts to recover those documents and obstructing the government’s investigation.
In September, President Biden was critical of Trump during an interview with 60 Minutes.
JOE BIDEN (President of the United States): How that could possibly happen, how one — anyone could be that irresponsible. And I thought, what data was in there that may compromise sources and methods? By that, I mean names of people who helped or et cetera. And it’s just totally irresponsible.
ADRIANA DIAZ: The steady pace of new developments has many wondering, what’s next?
Should we expect more documents? The short answer is maybe. Part of the reason classified records keep turning up is that the president’s personal lawyers who’ve been looking through his papers don’t have the clearance to view classified materials. So, when they find something, they stop, so someone with clearance can take over.
In the case of the Wilmington house, that person found more — Margaret.
MARGARET BRENNAN: Adriana, thank you.
We’re joined now by senior White House and political correspondent Ed O’Keefe.
Ed, talk to me about transparency. Why didn’t the president’s lawyers or the White House acknowledge this?
ED O’KEEFE: Well, look, they think they have handled this by the book, at least from a legal perspective. And, ultimately, that’s what they’re more concerned about.
They believe this was a mistake, that recent history shows, when these things are mistakenly found by people who had access to classified information and they turn it over quickly, it gets dealt with quickly by the Justice Department, maybe somebody gets slapped on the wrist, and they move on.
But the issue with public transparency and the president not being straight with the American public is certainly going to linger now and be the subject of questions, not only in the press, but probably from his critics on Capitol Hill.
MARGARET BRENNAN: And we still don’t know why there were lawyers searching the offices on November 2, when they found these documents. And the Penn Biden Center has not returned CBS’ calls and questions on that very basic fact.
But fast-forward to the special counsel. How is this going to affect the administration?
ED O’KEEFE: Well, in the statements that were released on Saturday, the White House now says: We’re not even confirming basic details anymore. You have any, you can go to the Justice Department. They’re the ones taking questions.
This essentially ties the hands of the White House on this matter in terms of information flow out. Democrats on the outside looking in frustrated and concern for their colleagues, as one of them said to me, this week, they were trying to put lipstick on a pig. The problem is, they were handed 50 pigs and only one stick of lipstick.
This is incoming like they had not anticipated at all before. And, as the White House tries to keep focused on other things, you should expect that they’re going to just keep focused, for example, on the economy, as the president did this past week, as he will in the coming week. They have warned now that the debt limit showdown is coming. And that has to be dealt with.
They have been trying to talk about the accomplishments in the last two years. As one Democrat put it to me, at the end of the day, do Americans care that the classified information was found in the homes of the former president, the current president? Maybe. But, ultimately, at the end of the day, they’re probably more concerned about the basic price of groceries.
And so the White House is more likely to try to keep focused on those things and keep sending it to the Justice Department. But they clearly had a problem this week with this, especially because you have a president who made campaign and day one promises of transparency, and they weren’t kept here, for whatever reason. Lots of questions still to come.
MARGARET BRENNAN: And we know you will continue asking them.
Ed, thank you for joining us.
We go now to Congressman Dan Goldman, a former U.S. attorney in New York, who served as the lead counsel for the Democrats in the first impeachment trial of former President Trump. So, you may recognize him.
Good morning to you, Congressman.
REPRESENTATIVE DANIEL GOLDMAN (D-New York): Good morning, Margaret.
MARGARET BRENNAN: So, let’s start with the appointment of the special counsel.
I know you were asked last week, and you said you did not think one was necessary. Given what we now know and the developments, do you still think it was a mistake to appoint Hur as a special counsel?
REPRESENTATIVE DANIEL GOLDMAN: I don’t think it was a mistake.
I don’t think any of us really have a good understanding of what information the attorney general had when he decided to appoint Mr. Hur as the special counsel. But I do think it goes to a really important fact that is being missed here, which is that this administration is doing things by the book.
There is a divide and a separation between the Department of Justice and the White House that certainly did not exist in the last administration. And President Biden and his team have reached out to the Archives. They have reached out to the Department of Justice. They have done everything they can to cooperate.
MARGARET BRENNAN: Yes.
REPRESENTATIVE DANIEL GOLDMAN: And that’s in direct contrast to what former President Trump has done, where he has obstructed justice at every turn.
MARGARET BRENNAN: Right. Doing things by the book now, but, obviously, in the handling of classified material, not by the book, because the regulations are pretty clear there.
Can you explain to me, for the search that we just laid out that was happening at the president’s home for the current president, his Wilmington home on Thursday, why would he send lawyers who don’t have a security clearance to search for classified material?
REPRESENTATIVE DANIEL GOLDMAN: I’m not sure. And we don’t know the circumstances of that.
But, certainly, the documents leave the vice president’s office and have to be stored somewhere. I do hope we will find out more information about it. But, as you see from the White House’s statement from the personal attorney Bob Bauer’s statement, they are doing everything by the book. They take this classified information being where it should not be — and we all acknowledge it should not be there — they take it very seriously.
And they are abiding by the laws. They have reached out and been as cooperative as possible. And that’s part of the reason why they can’t speak, is that they would be potentially interfering with an ongoing investigation, which, once again, this administration takes very seriously.
MARGARET BRENNAN: So, can you explain, on Thursday, why a White House attorney, someone who’s paid by U.S. taxpayers, was the one with the security clearance who got in the car and drove down to Delaware to then pick up where those lawyers who didn’t have security clearance left off, and then found the five classified documents?
Why is it appropriate for a White House lawyer to be involved in this personal matter?
REPRESENTATIVE DANIEL GOLDMAN: Well, because it involves classified information, which belongs to the government.
And this White House lawyer, Mr. Sauber, has security clearance. So the personal attorneys, once they found a classified document…
MARGARET BRENNAN: So, that is appropriate to you?
REPRESENTATIVE DANIEL GOLDMAN: … have to put it down, stop. And then the White House counsel — yes, of course, that’s appropriate.
When you have matters of national security, you need to make sure that those who have clearance to review them are reviewing them. And, once again, we’re focusing on a lot of the nitty-gritty details here. The bigger picture is broad cooperation from the president, who clearly takes this very seriously.
And that should be really underscored here.
MARGARET BRENNAN: You had…
REPRESENTATIVE DANIEL GOLDMAN: … as well as the importance of an independence of the Department of Justice.
MARGARET BRENNAN: You had an op-ed last year about the 45th president and the issues with classified material.
And you laid out four factors you said prosecutors need to look at, intent to distribute, clear knowledge of importance, volume of the material, and whether or not investigators had been lied to.
Is that the set of criteria you also think President Biden needs to be judged on?
REPRESENTATIVE DANIEL GOLDMAN: It absolutely is.
And I think, if you go through those criteria, and each one, they do not apply. We don’t have any indication that President Biden knew about them. He certainly has demonstrated no intent to deceive or obstruct the government by keeping them. And that’s in direct contrast to President Trump, who refused to cooperate, who refused to comply with a subpoena, and who ultimately forced the Department of Justice to execute a search warrant to retrieve the classified documents.
When you look at this very clearly, and you compare them, there is no comparison. Those four factors, I believe, apply to President Trump, and none of them apply to President Biden. And that is where we need to be centering this conversation.
MARGARET BRENNAN: I want to ask you about your first week in Congress.
One of the things you did was hand-deliver this ethics complaint to your fellow New Yorker Republican George Santos. He’s under local, state, federal and international investigation. You need a simple majority to move ahead with any kind of ethics action.
Do you have any Republicans supporting what you’re trying to do here?
REPRESENTATIVE DANIEL GOLDMAN: Well, the speaker of the House indicated that the — he would support an ethics investigation.
And, in fact, this morning, Congressman Torres and I sent a letter to Speaker McCarthy, Chairwoman Stefanik and the head of the Congressional Leadership Fund, Kevin McCarthy’s super PAC arm, because there’s really, really bombshell indication and reporting from “The New York Times” that they all knew about Mr. Santos’ lies prior to the election.
And as part of this investigation, we are calling on them to be fully cooperative with the investigators, both in Congress and outside of Congress, to disclose exactly what they knew about Mr. Santos’ lies and whether they were complicit in the scheme to defraud voters.
MARGARET BRENNAN: Well, for folks at home who aren’t following this in great degree of detail, they hear Kevin McCarthy say things like — Speaker McCarthy say things like, well, other people have also said things that aren’t true and they work in Congress.
They look at the fact that Senator Menendez of New Jersey has said he knows of an ongoing federal probe that involves him. A number of Democrats have failed to disclose stock trades, other things like that. Why is this case different? And how is this not just politics? Can you explain it?
REPRESENTATIVE DANIEL GOLDMAN: George — sure.
George Santos is a complete and total fraud. Everything that he said about himself on the campaign trail, nearly everything, has proven to be a lie. His financial disclosures are — have clear false statements and omissions. And that’s what we referred to the Ethics Committee for an investigation to get to the bottom of whether he broke the law.
Eight Republican congressmembers have called on him to resign. This is not like any of the other examples you’re talking about. This is a scheme to defraud the voters of the Third District in New York. And this needs to be investigated intensively. And Mr. Santos needs to think twice about whether he belongs in Congress.
And, more importantly, the speaker needs to think twice about whether Mr. Santos is fit to serve in Congress.
MARGARET BRENNAN: We will be tracking that story. Thank you very much, Congressman.
And we turn now to Republican Congressman Chris Stewart of Utah.
Good morning to you, sir.
REPRESENTATIVE CHRIS STEWART (R-Utah): Good morning.
MARGARET BRENNAN: You sit on the Intelligence Committee, which has asked for more information from the director of national intelligence in regard to the Biden documents.
But when you were on CNN last week, you said you really doubt that there’s something that could endanger national security here. Do you think this is just an overreaction to this story?
REPRESENTATIVE CHRIS STEWART: No, I don’t.
I mean, I do think it’s unlikely that — when President Trump had this similar experience, some in the media and others claimed, oh, he has nuclear codes, nuclear secrets. I said at the time, I find that extraordinarily unlikely, and I — unlikely.
And I think that the same thing would be true of this situation.
MARGARET BRENNAN: Well, they’re…
REPRESENTATIVE CHRIS STEWART: It’s probably not that type of — that type of information.
But if I could make this point very quickly about the likelihood of him being unaware of this, I mean, not only am I on the Intelligence Committee. I was an Air Force pilot. I flew the B-1. I have dealt with classified documents almost my entire life.
And you have to know, every one of these documents, they have a cover sheet that’s red.
MARGARET BRENNAN: Yes.
REPRESENTATIVE CHRIS STEWART: It says what the classification is and why it’s classified. Every single page has a classification marking on it.
This isn’t the kind of thing that you just sit on your desk and you think, oh, I forgot that they’re classified. It’s very clear that they’re classified. And for those who think that, well, the president didn’t realize that he had those in his possession just is nonsense. Of course, he knew that he had them. They’re so obvious.
MARGARET BRENNAN: And you’re applying that standard to both cases here.
CBS is reporting that there was top secret information in the documents found in Biden’s possession. You told CNN that there may be even more sensitive information at higher classification than that, TS/SCI.
REPRESENTATIVE CHRIS STEWART: Yes.
MARGARET BRENNAN: Do you know that to be a fact? Were you informed of that?
REPRESENTATIVE CHRIS STEWART: No, we don’t know that yet…
MARGARET BRENNAN: OK.
REPRESENTATIVE CHRIS STEWART: … although it’s been — it’s been reported, but it would be very, very important.
I mean, SCI, special compartmented information…
MARGARET BRENNAN: Yes.
REPRESENTATIVE CHRIS STEWART: … it limits it to a few dozen people in some cases, some cases, even less.
That would be extraordinary if that was the case.
MARGARET BRENNAN: Because that was what we have reported was in the Trump case, that there was TS/SCI, that classification level.
The Office of the Director of National Intelligence has decided not to comment on these matters at this point. Have they informed your committee when you might get some kind of update or briefing, either on the 45th president or the current one?
REPRESENTATIVE CHRIS STEWART: Yes.
Well, we do know this. The director of national intelligence can choose not to comment to the American people, but she can’t choose not to comment us. We have requested an analysis of these documents,the potential harm that they may have caused.
And I expect that we will receive that within the next few weeks. And we should receive that in the next few weeks. If these documents were available for a long period of time in such an open environment as a garage, for heaven’s sakes — now, I understand the garage was locked, as the president made the point.
But, still, they were available. It’s important for us to understand the potential damage to these documents and these documents being available it may have caused to the American — and American security.
MARGARET BRENNAN: So, what do you expect to get in the next few weeks? Because I understand the director has not yet briefed on the Trump case.
REPRESENTATIVE CHRIS STEWART: Yes.
Again, we expect to have an analysis of what these documents were, the classification of them, the material that was included in them, and potential security breaches and the threat to national security as a result of these documents not being secured.
MARGARET BRENNAN: OK.
I want to move on to other matters, because I understand you’re also on the Appropriations Committee.
The treasury secretary says we’re going to hit that debt ceiling on the 19th and have to go into extraordinary measures to make sure the federal government pays bills here.
Can you guarantee that Republicans will work with Democrats to make sure we don’t trigger an economic crisis?
REPRESENTATIVE CHRIS STEWART: Well, we certainly want to work with them. And we hope that they will work with us and the president will work with us.
Look, I’m not a fan of government shutdowns. I honestly don’t know anyone who is. It doesn’t help. On the other hand, I do want to make this point. It’s so important. Look, the reason that we’re dealing with inflation that we are, which has been generational — and it’s worth remembering it hurts the poorest among us. The working poor are those who are most impacted by inflation.
And the primary cause — in fact, I would argue almost the single cause — is government spending and government debt. And as we come up on the debt…
MARGARET BRENNAN: Well, it’s a pile of issues. It’s a pile of issues that we have covered in depth on this program.
But, on this issue dealing with your work in Congress, can you avert having the credit — creditworthiness in the United States called into question…
REPRESENTATIVE CHRIS STEWART: Yes.
MARGARET BRENNAN: … if — by actually coming to an agreement to deal with this issue…
REPRESENTATIVE CHRIS STEWART: Yes.
MARGARET BRENNAN: … before we get to a position of talking about a government shutdown?
REPRESENTATIVE CHRIS STEWART: Yes, well, I think that we can and we should.
But that to finish my other point, because it’s actually relevant to your question about inflation because of government spending, if that’s true, and it is true, then you have to understand there will be Republicans who will say, we need to reform. We need to use this as a vehicle to try to put some limits on our spending, on our debt and our deficits.
And I am one of them. And there are many others who will be. So the question that you have asked now is, are those two principles, the fact we need to reform and cut our deficits and our spending…
MARGARET BRENNAN: Yes.
REPRESENTATIVE CHRIS STEWART: … can we reconcile that with, at the same time, we don’t want to harm the credit of the United States government?
That’s our goal. I think Republicans are aligned on that. I hope the president is as well.
MARGARET BRENNAN: OK.
REPRESENTATIVE CHRIS STEWART: And, hopefully, we get to agreement on that.
MARGARET BRENNAN: Hopefully.
I want to ask you about George Santos, as you heard me ask your Democratic colleague.
REPRESENTATIVE CHRIS STEWART: Yes.
MARGARET BRENNAN: Can an elected official who’s under that many investigations be trusted as a lawmaker? Should he resign?
REPRESENTATIVE CHRIS STEWART: Well, it’s a core question.
Look, I don’t know Mr. Santos. I have never had a chance to talk with him. As you observe this, it’s kind of hard…
MARGARET BRENNAN: Do you need to talk to him to have an answer to that question?
REPRESENTATIVE CHRIS STEWART: Well, no, I don’t, which is — as I was just going to say, as you observe this, it’s pretty hard not to conclude he’s a bit of a goofball.
He clearly lied to his constituents. And to your point as well, it’s going to be very, very difficult for him to gain the trust of his colleagues. And I don’t know what he’s going to do. I mean, the reality is, is, you can’t expel a member of Congress. At the end of the day, it really is up to the voters in Nassau County.
I can tell you this.
MARGARET BRENNAN: OK.
REPRESENTATIVE CHRIS STEWART: If I were in that situation, I don’t know how I could continue to serve.
MARGARET BRENNAN: Yes.
REPRESENTATIVE CHRIS STEWART: And I had — I suppose he needs to ask that same question.
MARGARET BRENNAN: We will continue to ask that.
Congressman, thank you for your time this morning.
We will be back in a minute. Stay with us.
MARGARET BRENNAN: President Biden will become the first sitting president to speak during a Sunday service at the Ebenezer Baptist Church in Atlanta, where Reverend Martin Luther King was once a pastor.
King appeared on Face the Nation in May of 1964, when he was working along with President Johnson to get the Civil Rights Act passed.
QUESTION: Dr. King, in light of recent statements of Senator Barry Goldwater and, in some cases, Richard Nixon, do you think there’s a real danger of the Republican Party becoming the white man party in this country?
MARTIN LUTHER KING JR. (Civil Rights Leader): I think this is a real danger. And I have talked with some Negro Republicans who are very concerned about this.
I see trends and developments which will reveal that, unless the liberals of the Republican Party take a much more — play a much more decisive role in leadership positions, this will become a white man’s party.
And I think this would be tragic for the Republican Party, as well as tragic for the nation.
MARGARET BRENNAN: Today, the 118th Congress is the most racially and ethnically diverse in U.S. history. And it’s been trending up for the last seven Congresses.
There are a total of 60 black members in the House and Senate. Only five are Republicans. According to the Pew Institute, 13 percent of House members are black, which is on par with the black population in the U.S. for the very first time.
When Congress passed the Civil Rights Act two months after Martin Luther King spoke on Face the Nation, there were just five, all House Democrats.
We will be right back.
MARGARET BRENNAN: If you miss an episode of Face the Nation, you can listen to our podcast. Find us on Amazon Music.
MARGARET BRENNAN: Welcome back to FACE THE NATION.
And we are back now with some analysis.
Michael Morell is a CBS national security contributor and the former deputy director of the CIA. Lucius Outlaw is professor of law at Howard University. And Larry Pfeiffer is the director of the Hayden Center here in Washington and a former White House official.
Good morning to all of you.
And I’m hoping you can sort of give us a few bottom lines on what is a developing story here.
Larry, I want to start with you because you ran the White House situation room as its senior director, so you know how the current president, when he was vice president, interacted with classified material.
Just blanket statement, anyone who keeps documents marked top secret in their personal possession would face a high degree of scrutiny. When is it a criminal act?
LARRY PFEIFFER (Director, Hayden Center for Intelligence Policy and International Security): It becomes a criminal act, I think, when there’s intention to remove the documents to a location. In my experience, 32 years in the intel community, time at the White House, you know, accidents happen. These are paper documents. People carry them in folders. You know, sometimes they – they walk out with them and – and – and – and they will discover that they’ve taken them. And when they discover that they’ve taken them by accident, they will quickly return them or have somebody return them to appropriate location. And I think that’s what happened here.
MARGARET BRENNAN: Why do you think that?
LARRY PFEIFFER: Well, just from at least what – what we’ve heard so far. It looks to me like somebody probably unknowingly took some mixed group of papers, threw them in a box, and – and then they got shipped off to the residence. I think we heard that some of the documents —
MARGARET BRENNAN: You think it’s a staff problem, that they also were touching this classified information?
LARRY PFEIFFER: Oh, yes, I’m – I sincerely doubt that Joe Biden himself threw these things in a box and – and – and shipped them off to the White House. I’m sure — I’m sorry, to his residence. I’m sure that this was a staff – a staff issue. Some – some aide who, in a hurry, in the last days of the administration, was just grabbing materials and throwing them in a box.
I think we even heard that it was in — some of this material was in boxes that included material about his son’s funeral. So, they may have seen, you know, son, Beau Biden funeral arrangements and thought, oh, OK, let’s just put this in a box, not realizing that there were other documents intermingled.
MARGARET BRENNAN: Mike Morell, you were the deputy CIA director, as – as we mentioned. You know how to take classified material into your home in a secure fashion. I imagine not in a garage, necessarily, as the president said there. But for six years these documents were in private possession. Is there a risk there?
MICHAEL MORELL: Margaret, there is absolutely a risk any time there are classified documents that are not in a controlled facility. And as you said, you know, there’s a number of years where these documents were not handled properly. So, there’s absolutely a risk.
I believe that the intelligence community needs to do a damage assessment. The House Intelligence Committee has asked for that. They deserve it. Just as they do in the case of former President Trump.
MARGARET BRENNAN: It’s — so, one of the questions that’s coming up, and, Lucius, perhaps you — Professor Outlaw, perhaps you can weigh in here. This also came up with the Trump case. If it’s not the president himself packing up the classified material, if there are other aides, they also may have legal exposure here. We know that one of those staffers was questioned, Kathy Chung. She currently works at the Pentagon. She was an assistant. Is somebody like that here at great legal risk?
LUCIUS OUTLAW (Law Professor, Howard University): Well, there’s always going to be some risk, but it’s really going to come down to intent. Was there some kind of criminal intent or was this negligence or even recklessness? And I think that’s what the Department of Justice is going to really weigh out.
And when it comes to the presidents, I really don’t think the DOJ is going to go towards a criminal prosecution about classified documents because there’s so many open legal questions about presidents and classified documents and whether or not those criminal statutes apply to presidents.
And Garland and the DOJ know that those questions will end up at the Supreme Court and they can have no confidence that in a legal fight with Trump, or even with Biden, but mostly with Trump, that they will be successful in a fight against Trump at the Supreme Court about executive power and the use of power by Trump.
MARGARET BRENNAN: So, in both cases, the 45th president and the current one, you don’t think that there will actually end up being any prosecutions?
LUCIUS OUTLAW: I don’t think there will be prosecutions in regards to criminal — about classified information. The obstruction, that’s a completely different story. And I think we already see signs, that’s where the DOJ is headed in terms of Trump. When they served the warrant, the warrant application specifies the actual criminal statutes that they’re investigating. Not one of those statutes has anything to do with classified materials. Most of the statutes have to do with obstruction. And I think that’s the cleanest, best path because it doesn’t matter if you’re a president, either you obstruct or you didn’t. You don’t have presidential power to obstruct justice. So, I think that is the easiest and most likely course for the DOJ.
MARGARET BRENNAN: So, Larry Pfeiffer, if you could weigh in here. We heard from Dan Goldman, congressman, that he thinks it’s entirely appropriate in terms of how the White House is handling this and the president’s private attorneys. Should they be sending, in your view, lawyers with no – no security clearances to search for classified documents? And then, should White House attorneys be involved in any way in this case?
LARRY PFEIFFER: Well, uncleared people should not be searching through boxes looking for classified material because it now exposes classified material to somebody who shouldn’t be seeing it. My understanding is that some of these individuals may have previously had clearance, which maybe attenuates the circumstances a little bit.
Whether it’s White House lawyers are involved or not, I think that’s the discretion of the president as to whom, perhaps, he trusts. As an intelligence professional for 30-plus years, I think I would have liked to have seen maybe an intelligence or a security professional going and doing these searches. But, you know, it is what it is at this point.
MARGARET BRENNAN: Mike Morell, you know, when this issue came to the forefront with former President Trump, one of the defenses of him was, well, there’s over classification and, therefore, maybe these documents aren’t that sensitive. And then, of course, news agencies, including CBS, reported that many of these — hundreds of documents actually were very sensitive.
But what is your view here? Is there a broader issue that two pretty significant men have had this level of issue handling classified information?
MICHAEL MORELL: Margaret, I think there is a broader issue, but it’s not over classification. I worked at the CIA for 33 years. I did not see information classified to a level where – where I questioned whether that was appropriate or not.
I think the broader issue is now we have two cases of former White Houses as they pack up to leave mishandling classified information. So, we have a legal review here by the special counsel. We’re going to have a damage assessment on these documents by the intelligence community. I think we need a separate, bipartisan task force that looks at how White Houses handle classified information throughout an administration, but particularly at the end. And I think they need to make recommendations going forward so that these documents are handled with much greater rigor.
MARGARET BRENNAN: Much greater rigor. What does that mean, harsher penalties?
MICHAEL MORELL: No, I think it means that a special group of individuals, perhaps from the — partly from the intelligence community, but also from the National Security Council, need to go through every box that leaves the White House at the end of an administration to make sure there aren’t classified documents in it.
MARGARET BRENNAN: Professor, you know, some of the critics, and certainly part of the political framing of this is the lack of transparency with the public, which we talked about with Ed O’Keefe earlier.
It was CBS News that broke this story. And then the government acknowledged it. Is that appropriate? Do you think there’s anything legally to back up the White House argument that they just couldn’t say anything at all?
LUCIUS OUTLAW: Right. I mean there’s a political question and a legal question. I’m not going to –
MARGARET BRENNAN: I’m asking on the legal –
LUCIUS OUTLAW: On the legal side, no, it – what matters –
MARGARET BRENNAN: They could have.
LUCIUS OUTLAW: They – they could have with the public. What matters most legally is, what did they communicate and when to the proper government authorities? Was there a delay there? Was there an attempt to impede any kind of investigation? That is what matters legally.
Now, what they say in the public may shed light on intent if there’s some other charges, but legally I don’t think that puts them in any jeopardy that they chose to wait to tell the public something they already told the proper government officials.
MARGARET BRENNAN: I ask you that because we often hear at the White House podium, this is about process. We couldn’t go outside of the process because it could impede an ongoing investigation.
LUCIUS OUTLAW: Right. And they — two things can be true. One, they don’t want to impede an investigation, but also they don’t want to impact or negatively impact themselves politically or midterms or anything of that nature.
MARGARET BRENNAN: Right.
LUCIUS OUTLAW: Two things can be true.
MARGARET BRENNAN: Right. Two things can be true, absolutely. It is Washington. There is a lot of gray and there is a lot of nuance.
But, Larry Pfeiffer, in the case of Trump, it was more than 300 pages of – of classified information. As we talked about, higher levels at — and some sensitivity, prolonged legal back and forth. But to what degree does that matter versus that question of intent? You know, you’re giving the president the benefit of the doubt that this was an accident. The former president was accused of – of doing many things potentially with this information.
LARRY PFEIFFER: Well, I think the volume of the material could actually suggest intent. I mean this was 300 classified documents among 11,000 other documents that were taken from the White House. That – that just doesn’t happen by accident. That had — there has to be some intent there.
Now, I — when this story first broke, I was one who actually was somewhat willing to give some benefit of the doubt because I’ve seen these accidents happen in the past. But as that story unfolded, it became pretty clear that — and given the obstruction, given the reluctance to cooperate, it suggests there may be, you know, more criminal issues at play with the Trump situation.
MARGARET BRENNAN: And, Mike Morell, we talked about this as well, that the lack of clarity in some ways, in terms of the ability to declassified information. I’ve been talking in recent days to lawyers, too, about when does the vice president get to declassify versus a president.
In your view, does there need to be more sort of clarity on what a president can declassify and when?
MICHAEL MORELL: So, a president can declassify almost anything. Not everything. But almost anything that’s been classified by the executive branch. The vice president does not have that authority. He’s not claiming that in this case.
I just want to go back, Margaret, to – to what you said at the very beginning. In both of these cases, we have some top-secret documents. That means that those who classified those documents believe that if they get into the wrong hands there could be exceptionally grave damage to national security. So, we have to stay focused on this in terms of – of these individual cases, but how do we prevent this from happening going forward?
MARGARET BRENNAN: All right, Mike Morell, thank you for your analysis.
Professor, Larry, thank you as well for joining us.
LARRY PFEIFFER: Thank you.
LUCIUS OUTLAW: Thank you.
MARGARET BRENNAN: We will be right back.
MARGARET BRENNAN: We are joined now by Chris Whipple, author of a new book about the first two years of the Biden administration. It’s called “The Fight of His Life: Inside Joe Biden’s White House.”
Good morning to you.
CHRIS WHIPPLE (Author, “The Fight of His Life”): Good to be here.
MARGARET BRENNAN: And you spent a lot of time working on this book over the past two years. And you met a lot of these characters who are so close to Joe Biden, the man and now the president. One of them, Bob Bauer, who is now the president’s attorney in regard to this story we’ve been talking about for most of the show with classified documents. He also happens to be married to one of the president’s closest advisers.
What do you make of how this is – is playing out? And why is Bauer the man to defend him here?
CHRIS WHIPPLE: Well, let me come back to Bob Bauer in a second.
But I think that this is a real problem because there’s just this constant drip, drip, drip of information that comes out about the documents. And it’s surprising, to some extent, because I spent two years talking to almost all of Joe Biden’s inner circle. And usually they’re much more adept at handling these crises. I can tell you, this is the most battened down, disciplined, leak-proof White House in years, as I think you know. So it’s – so it’s a little bit surprising. But I think – and you can sympathize when they say that, look, anything we say could be contradicted later. We can’t get ahead of the process. But they really need to raise their game here, I think, because this really goes to the heart of Joe Biden’s greatest asset, arguably, which is trust. I mean maybe not for a 30 percent to 40 percent of the American people, but for Democrats and independents. And that’s really at stake here.
Bob Bauer is a – is a fascinating choice to do this. He’s – he’s a very bright guy. I’ve interviewed him for the book. He tells some great stories in it about the transition. And I think that Bauer is a – is a very smart lawyer and very cautious. He’s not going to want the White House to get out there and talk a lot about what’s going on. And as you noted, he’s – he’s married to one of Joe Biden’s most influential political advisers, Anita Dunn. So, you really have to wonder what it’s like around that dinner table. If I know Bob Bauer, he may not even be talking to her about this.
MARGARET BRENNAN: It’s a very tight-knit group around the president.
CHRIS WHIPPLE: It is.
MARGARET BRENNAN: And has been for years.
CHRIS WHIPPLE: Yes.
MARGARET BRENNAN: How did something like this happen?
CHRIS WHIPPLE: Well, you know, look, everybody’s baffled by it. And you – and you have to wonder if you were to search some of the other presidential properties of other presidents whether we’d be finding the same thing. I think Mike Morell’s right, there’s got to be a much better process. It’s just a sloppy process, I think.
But, again, I — substantively, I think this is really serious in one way because I think that it now becomes difficult, if not impossible, to bring charges on the Mar-a-Lago documents case. And the reason – the reason I say that is because no matter what anybody says about this being only about the facts and the laws, it is inarguably a political decision with enormous political ramifications. Jack Smith and Merrick Garland have to be thinking about a jury, choosing a jury, and whether that jury is going to think that what Trump did is all that egregious if documents keep popping up every other day in Joe Biden’s residences.
MARGARET BRENNAN: At this point in a presidency you often see officials rotate out. I know you spoke to Chief of Staff Ron Klain extensively. Is he staying on? And should we expect other changes?
CHRIS WHIPPLE: That’s a really big question for Joe Biden. Look, he’s had a – a very successful two-year presidency, particularly – I mean the second year has been one of the most consequential years for any president in – in modern history. The first year was – was tougher. We can talk about that. But I think —
MARGARET BRENNAN: I assume you’re talking about Afghanistan.
CHRIS WHIPPLE: Yes, Afghanistan in particular. But I think that Joe Biden – Joe Biden will have a very tough decision to make if Ron Klain decides to move on any time soon because those are very large shoes to fill. Ron Klain is — arguably belongs in elite company, James Baker, Leon Panetta, some of the best chiefs of staff around. So, I think it’s going to be a really, really important decision.
MARGARET BRENNAN: They didn’t tweet like he does. He’s very active on Twitter.
So, let’s go to something serious here, Afghanistan. That was a huge black mark on the Biden administration.
CHRIS WHIPPLE: It was.
MARGARET BRENNAN: To really have such a chaotic withdrawal on something they just really didn’t expect to go sideways like it did.
CHRIS WHIPPLE: I think – I think this is a tale of two presidencies, the first year and the second year. The first year overshadowed by Afghanistan, even though he had a lot of accomplishments that first year. It was chaotic, God knows, watching it on television. But what I discovered and report in my book is that behind the scenes there was a lot of drama.
MARGARET BRENNAN: Yes.
CHRIS WHIPPLE: And Tony Blinken, the secretary of state, told me in no uncertain terms that everything we did was based on a fatally flawed intelligence assessment that the Afghan government would last for 18 months. This was news to CIA Director Bill Burns when I sat down with him and talked to him at length about it. He said, look, if you pulled out two legs of the stool, as he put it, American forces and contractors, we — we predicted that that could collapse very quickly.
So, Afghanistan – and — and – and I also have this wonderful story that, I mean, Joe Biden shared with me what it was like on the worst day of his presidency, what he called the hardest of the hard days when 13 service members were killed by the suicide bombing in Kabul. Afterwards, Biden had to confront — had to try to console the families of those fallen soldiers. Some of them blamed him.
MARGARET BRENNAN: Yes.
CHRIS WHIPPLE: Some of them were upset because he invoked his son Beau. This was personally really wrenching for Joe Biden. And it’s a – it’s a, I think, a great insight into him.
MARGARET BRENNAN: It’s a compelling — it’s a compelling book. Thank you very much.
CHRIS WHIPPLE: Thanks so much, Margaret.
We’ll be back in a moment.
MARGARET BRENNAN: Russia launched another wave of missile attacks on Ukraine on Saturday. Explosions were heard in Kyiv this weekend as missiles rained down nearby, killing about two dozen people in Dnipro and knocking out critical infrastructure in at least two major cities. Kyiv is calling on the west to provide them with advanced air defense systems.
Debora Patta has the latest.
DEBORA PATTA (voice over): A fresh round of missiles unleashed this weekend smashed into a residential apartment block in Dnipro. A reminder Russian- style, this is a war declared largely on civilians.
Rescue workers paused to listen for survivors in the dark. Is someone alive, they shout in unison? Among the dead, children. Among the living, this woman, 23-year-old Ana Stasiashvitz (ph), who survived by hiding in the bathroom of what was once her seventh floor apartment.
The strikes come at the week of intense combat in the east where Ukraine is fighting to hold onto Soledar. Russia claims the town is under its control. Ukraine disputes this, saying Moscow is trying to grind down its forces using mercenaries from the Russian paramilitary group Wagner.
They’ve had a lot of losses, Ukrainian soldier Vadim (ph) said. They’re attacking in waves and walking over the dead bodies.
Wagner insists its fighters, not the regular Russian army, seized Soledar, a claim that’s led to an internal turf war in Russia over who should get credit for a victory here.
But Vladimir Putin desperately needs a win. He’s failed to take a single town since July. Wagner’s leader, Russian oligarch Yevgeny Prigojine, made a triumphant visit to Soledar yesterday to hand out medals to his men. They captured it in two weeks, he bragged. They’re probably the most experienced army in the world.
The truth is they are convicts recruited from prisons across Russia, pardoned in exchange for fighting on the front line, fueling fears that arming hardened criminals could lead to more battlefield atrocities says Ukrainian military expert Olexander Colvalinco (ph).
Convicts have no moral line to cross, he told us. Since they arrived on the battlefield, war crimes have increased.
DEBORA PATTA (on camera): Allied support remains strong with the U.K. becoming the first western nation to pledge tanks to Kyiv. Other NATO members are now under pressure to follow suit.
MARGARET BRENNAN: Debora Patta, thank you.
Here in the U.S., there’s a little bit of a bright spot in our economy as this December’s Consumer Price Index indicates that inflation is slowing for the sixth straight month thanks, in most part, to falling energy prices. Now, the Fed is expected to continue to raise interest rates, but given the new data, the size and pace of those increases remains an open question.
We’ll be right back.
MARGARET BRENNAN: If you can’t watch FACE THE NATION live, you can set your DVR. We’re also available through our CBS and Paramount Plus apps and we’re replayed on our CBS News streaming network throughout the day on Sundays.
That’s it for us today. Thank you all for watching. Until next week, for FACE THE NATION, I’m Margaret Brennan.
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