Whitaker Refusing to Recuse from Russia Investigation Despite Justice Dept Advice.
BERMAN: The Justice Department is explaining why acting attorney general Matt Whitaker decided he should not recuse himself from the special counsel's Russia investigation. Now, an ethics official had advised otherwise, but in a letter to congressional leaders, DOJ leaders say it has been more than a year since Whitaker criticized the investigation, and Whitaker has a lot of respect for Robert Mueller. Joining us now to discuss, author of "Contempt: A Memoir of the Clinton Investigation," Kenneth Starr. He, of course, was the independent counsel leading the investigation into President Clinton. And CNN chief legal analyst Jeffrey Toobin. Jeffrey, I think we under explained exactly what happened here. Matthew Whitaker decided not to ask for an official ethics review because?</s>JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: He was going to get the review that said "recuse himself."</s>BERMAN: And if he did --</s>TOOBIN: Just like -- just like Jeff Session recused himself.</s>BERMAN: And if he had the official recommendation, he would have had to follow it. Instead he asked for an opinion. The opinion tells him, you know, "There's no legal conflict here. You don't have a legal conflict, because you don't have a family member who works in the independent -- special prosecutor's investigation. You weren't part of the campaign, but there's an appearance of conflict, so we think you should step aside." And then he still says, "Nah."</s>TOOBIN: I don't think so. You know, I think it's important to remember. Both attorneys general we're talking about, Mr. Whitaker and Mr. Barr, who's been nominated, they were chosen by the president not because -- not in spite of their conflict of interest, but because of their conflict of interest. The only reason that Donald Trump is even aware that Mr. Whitaker exists is because he was on CNN criticizing -- criticizing Mueller. He's an undistinguished attorney. Mr. Barr, a very different story. A very distinguished attorney. But the only reason he is -- he is attorney general is because he criticized Mueller. He is a perfect example of why he should be recused, but he didn't do it. Because he knew that that's what Jeff Sessions got fired because of, because he recused himself.</s>BERMAN: So Judge Starr, among your many past jobs, one of them was in the Justice Department as solicitor general. You know what it is like to work in the Justice Department. Should Whitaker have asked for an official ethics review?</s>KENNETH STARR, AUTHOR, "CONTEMPT": Yes. I think the processes and procedures of the Justice Department are terribly important. Those procedures have integrity, and it's very wise to follow those procedures, turn square corners. We expect that of government officials. But I really take a different view from Jeffrey with respect to Bill Barr. I served under Bill Barr under President Bush 41. He's been the attorney general of the United States. There are precious few of those, and moreover, he conducted himself with great honor and integrity. And we'll probably get to his memorandum --</s>BERMAN: Yes.</s>STARR: -- but to just think that somehow equate Attorney General Whitaker, for all of his exploits and adventures, with Bill Barr with his extraordinary record is unfair.</s>BERMAN: I'll get to Barr -- I promise I'll get to Barr in a second, Ken, but I do -- Judge Starr, I do want to emphasize the point you're making on Matt Whitaker. You do think there should have been an official review, and when the unofficial review, the advisor, ethics adviser said, "You know what? You should step aside," do you feel he should have?</s>STARR: I think he should weigh seriously the process that resulted in that advice. And then it's his judgment, and then he's accountable for that judgment. Had I been in his place, and I'm not in his place, I would have said, "I want to know what the ethics experts at the Justice Department say. I'm going to weigh that carefully. And I would say those recommendations would have have a very heavy presumption of correctness." Now, that's a longwinded way of saying, "You'd better follow the ethics advice just as Jeff Sessions did," but if he disagreed, then, you know, he's going to be accountable for that. Now let me say this. There has not been a hint that I know of, there's been no public hint that there's been any interference with the orderliness or the independence of this investigation.</s>BERMAN: Not yet. The reason for that, we now know, is because up until yesterday, Whitaker wasn't overseeing the investigation. He wasn't exercising the oversight role. Rosenstein -- Rod Rosenstein, the deputy A.G. still was. Now that this memo has been written by the Department of Justice, Matt Whitaker has made clear he will oversee the investigation, until you know, Bill Barr, William Barr, former attorney general, is confirmed, if that would happen, as the next attorney general. Now, let me read you the statement from Bill Barr, the letter that he wrote, the recommendations that he had to say about the Mueller investigation, and we'll talk about that, that memo that Judge Starr was talking about. Let me find it here. I'll read it off the screen. "It appears Mueller's team is investigating a possible case of obstruction by the president, predicated substantially on his expression of hope that the Comey could eventually -- could Comey eventually 'let go' of its investigation of Flynn and his action in firing Comey. Apart from whether Mueller is a strong enough factual basis for doing so, Mueller's obstruction theory is fatally misconceived." Mueller's obstruction theory is fatally misconceived. That is the opinion of the person who might be the next attorney general, Jeffrey Toobin. So is it safe to assume, if he thinks that Mueller's theory. I don't know how he knows Mueller's theory, but if he does know Mueller's theory, it's fatally misconceived. That he might be likely to step in and stop that part of the investigation?</s>TOOBIN: Well, let me start by agreeing with Ken about one thing. You know, Bill Barr is a very distinguished attorney, a very different person, very different background than Mr. Whitaker. I mean, he did serve as attorney general. He served honorably, but that was then. And here we have a situation that, as a private lawyer, he volunteered to send a 19-page memo denouncing Robert Mueller in the most important ethical issue that the new attorney general is going to face. That doesn't mean Bob Barr is a bad person. That doesn't mean he's even wrong on the law, although I think he is. What -- what he did was he voluntarily injected himself into this highly-controversial issue. And that's what he's going to have to face as attorney general. He should not be doing that. That is inappropriate, even though Bill Barr is a very distinguished lawyer.</s>BERMAN: Judge Starr.</s>STARR: I love Jeffrey, but Jeffrey is so wrong. He is, first of all, wrong on the law. What Bill Barr, that 19-page memorandum sets forth, with lots of citations to ancient and current cases, is traditional and orthodox legal doctrine. He is warning, and the American people should be warned, prosecutors -- I was accused of this -- stretch the law. And when I read that memorandum, I'm saying, "Bill Barr, God bless you because what you're doing is you're sounding the alarm. You're saying here is a potential stretching of one provision of the law." He's not denouncing the investigation. He's not denouncing Bob Mueller. But he is saying this prosecutorial theory of obstruction is dangerous to the presidency, not to President Trump. He's not putting it in personal terms. But he also is making it very clear in that memorandum that the president does and should be held accountable if he truly violates the law of obstruction. This is where Jeffrey and I have disagreed previously. He uses examples such as witness tampering, destroying evidence; and he refers to the crimes of Nixon and Clinton. Those were real crimes, not the exercise of executive branch powers. So I just respectfully disagree with Jeffrey's analysis. It's a lawyer expressing his view, and it sounds like an OL -- I'm sorry, Office of Legal Counsel opinion, which is also what Bill Barr did for a living at the Justice Department before he became a very distinguished attorney general.</s>TOOBIN: I mean, I agree about the scholarly nature of the letter, and it is certainly a grounds for disagreement between reasonable people about the basis for an obstruction of justice charge. My point is, here you have a private lawyer, which is what Bill Barr was, voluntarily, out of the blue, injecting himself into this controversy, this very controversy that he would supervise as attorney general. That to me is a conflict of interest. You shouldn't be -- I mean, he was chosen, I have to assume, because of that letter, not in spite of it. And that is inappropriate.</s>BERMAN: Judge Starr, we have to go. But I just want to add one question. In the confirmation hearing, would it be a fair question to ask him, say, "Attorney General Barr, when you become attorney general, you said the obstruction investigation is fatally flawed. Will you shut that part of the investigation down?" Should he have to answer for that?</s>STARR: Oh, sure. Absolutely. The confirmation hearing is exactly that kind of give and take. What is it you're -- and here's the other point I would make. Bill Barr would, in fact, go through the process, I have every confidence, in the Justice Department. He would get the expert advice, and I have a feeling that he would follow that advice. So that's yet to play out. But I see this as a concerned citizen who sees the problem -- this is where Jeffrey and I really profoundly disagree -- a prosecutorial carrying out a view of a statute that is extravagant and unfounded and a peril to the orderly operations of the executive branch. Leave Donald Trump aside and just talking about first principles of our structural government.</s>TOOBIN: Ken and I agree -- Ken and I, I'm pleased to say in this holiday season, we agree on that. We agree that it's a good question at confirmation hearing.</s>BERMAN: I will say that Attorney General Barr did not leave Donald Trump aside. He wrote the letter to the Trump team, so they knew his legal opinion on that, which is interesting. All right. Jeffrey Toobin, Judge Starr, thanks so much for being with us. Appreciate it. Alisyn.</s>CAMEROTA: OK, John. The past 24 hours have been some of the most turbulent since President Trump took office. How does all this stack up to other crises? Well, historian Doris Kearns Goodwin joins us next.