Transcript: Former Clinton attorney Jane Sherburne's interview on 'The Investigation' podcast

Jane Sherburne, a former special counsel to President Bill Clinton, sat down for an interview for the latest episode of “The Investigation," a new ABC News podcast. A transcript of Sherburne's interview as it appears in this episode of the podcast follows here:

ABC NEWS' CHRIS VLASTO: Welcome back — I'm your host Chris Vlasto, back with Matt Mosk and John Santucci. And in my keeping with inviting everyone I know from my Clinton days on this podcast. I welcome Jane Sherburne who was special counsel at the White House for President Clinton for three years Jane?

JANE SHERBURNE: Three years, yes.

VLASTO: Three years it seemed like a – but, but cause I felt like I was always talking to during those times. And that - we're having you on because I think there are. We've had Barbara Comstock on we've had Dave Bossie on. We've had John Podesta on and I do think that was the last time there was a major political investigation battle going on against the, you know, with the executive branch and the legislative branch fighting each other. When you look at the battles happening now in the Trump administration what's, what your opinion?

SHERBURNE: Well, my first observation is that I, I wish the precedent that they're trying to set had been available when I was managing these matters for the Clinton White House. Just saying no and stonewalling Congress was not something that was in our lexicon. We understood that there was a legitimate oversight function that Congress had and we tried to work things out and it - sometimes it was difficult, sometimes it was complicated. Sometimes we didn't succeed, but for the most part that was something that we were, we were really trying hard to do consistently.

VLASTO: Except at the time the Clinton White House did use privilege right. You used privilege to either delay investigations or felt you were justified in using privilege. No?

SHERBURNE: Occasionally. But it was very limited and very narrow. And we worked it out. I remember, one time we had invoked privilege in connection with some handwritten notes that the president had made and it was the Senate Whitewater committee that wanted to, wanted to see the notes. And we arranged for an in-camera review of the notes. You know, you work it out, is my point. You don't want to create a constitutional crisis. You don't want to have to litigate this sort of thing because you never know what kind of case goes forward and is it going to create bad law? If it's a bad case? So you really do try to try and work it out. And I had the impression that that's what the Justice Department was trying to do with the House committee and somehow those discussions broke down and they issued the subpoena.

VLASTO: So, do you think we're in a constitutional crisis right now?

SHERBURNE: Well, if they're really serious about stiffing Congress all of these document requests and subpoenas and requests for witnesses. Yeah, I think that's a constitutional crisis. It's, it's a flagrant abuse and obstruction of a legitimate, constitutional prerogative of the legislative branch. They have an oversight function. And it's not just, you know, the Mueller Report that's at issue. Its investigations into the government's response to the hurricane in Puerto Rico. It relates to taking the citizenship question and putting that on the on the census. It relates to a whole range of issues. It's a blanket, no we're not doing it. And yeah I think that constitutes a constitutional crisis.

ABC NEWS' JOHN SANTUCCI: Well, and I think you know, we were talking with us earlier with Mary Bruce about to your point there it is so widespread. Is there anything that you know if you were the lawyer right now? I don't think you would go sign up to join the Trump administration.

SHERBURNE: Correct.

SANTUCCI: But, but if you were, is there any of their moves of dodgeball that you could agree with? Are there some things that you do think have been an overstep of this Congress so far?

SHERBURNE: I think Congress needs to pick and choose these battles very carefully. The un-redacted Mueller Report. I don't think that's the right battle. Frankly, I don't think the redactions are that substantial. I think there is so much in that report that is terrifying and frightening and evidence of obstruction on the part of the president and interference in our election process on the part of the Russians that what, what is redacted adds only incrementally in a very small way to the vast information, amount of information that is already quite damning in that report. So, I wouldn't have picked that battle.

SANTUCCI: What would you pick?

SHERBURNE: I think getting testimony of Mueller that that's - that that might be one that I would pick. I think some of the financial records. You know this case about the accounting records that one will be an interesting, interesting test.

ABC NEWS' MATT MOSK: I wanted to ask you about that case actually because that's entering the court system really this week and we're going to see the first signs of that one out of the gate. Can the Democrats in Congress request financial records of the president? Do they have to have a basis beyond just the political interest or curiosity? What, what would justify a request for a president's personal financial records?

SHERBURNE: Well I think if, if they're put in issue in an investigation they, they may be relevant. If the president has said for example that he has, he, he claims all the time that he can't produce these records because they're, they're audited. That's been years and years and years. What's all that about? Is that audit function being performed properly if it's taking this long to review his records? You know I - I don't know. There are others who are who've done a lot more work on developing arguments and explanations for this than, than I have. But I think there can be a legitimate basis for making that request.

MOSK: And if these, if the court agrees that the Congress has this function and rules that these documents need to be produced or the witnesses need to be produced in this particular case is that game over? Or will the - does the White House have the opportunity to fight every one of these requests one at a time?

SHERBURNE: I think it depends how they…There's some talk of trying to bundle these problems and issues into one piece of litigation. I don't know how well that would work. I think the White House would have an opportunity to, you know, hit them serially. I think that's part of the strategy and that, that may or may not work if you can get different judges and different courts than you get things that start going up on appeal and end up in the Supreme Court. Which is generally now more favorable to strong executive branch. That could be where they're headed.

VLASTO: But don't you worry? I said earlier in the broadcast that during the Clinton days it backfired on the Republicans for how much they investigated. There were, I don't know, twelve investigations going on then, filed gate. You know I can't even remember half of them and I covered all of them. And it helped President Clinton in some ways. I think the American people looked at and said what the hell is going on in Washington. Don't you worry that's the same thing that's going to happen to the Democrats here?

SHERBURNE: I do worry about that. I've - I have my own view is that the Democrats should, should make the points that it's clear. I think as Nancy Pelosi said that the president is trying to goad them into impeachment because he sees that to his advantage. And so, when they're not being goaded and they're pretty consistently saying, you know, I don't think we're going to go down that road. He throws down another gauntlet and he's making it almost impossible for them not to respond in some way because he's threatening the separation of powers in the way that he is. And so, so I think it's a - I think it's - I think he's using investigations quite differently than the Clinton administration. I mean look - look at what we're talking about. I mean you're, you remember these - the sort of trivial issues. I mean, I always refer to my tenure as, as presiding over the, the fake scandals. You know these, these amounted to nothing. You ask anybody what Whitewater was about no one can even tell you.

VLASTO: Well that's true. Except maybe me. (LAUGHS)

SHERBURNE: Watch out, I'll challenge you go.

VLASTO: There you go. But, but it is - Barbara Comstock who you battled a lot of those times there on a lot of these investigations, though, was on the podcast and she brought up and I had never even heard of this, this inherent contempt and they actually thought about it during the Clinton days and said no this is crazy. We're not. They wouldn't even go that far. Now I think it's is it Nadler?

SANTUCCI: Schiff and Nadler.

VLASTO: Schiff and Nadler said that this could be a probability. Couldn't that be a - like blow up in their face?

SHERBURNE: Yeah. I think, I think that would be a huge mistake. And I hope they're not seriously contemplating it. It was interesting. I remember the notion coming up in the Clinton years when we were looking at what happens if we actually resist some production request or a subpoena. And there was some concern that this inherent contempt could be invoked. And. But, but it was never. It never went that far. And I think that would be a huge mistake. I think what the what the Democrats in Congress should do now pick and choose those battles very carefully about what they need to do to preserve the - their oversight authority and then they have the Mueller Report. They have the same exact information that Barr says he relied on to conclude that there was no obstruction. So, that means according to the Justice Department, the information to make some conclusion about obstruction is in that record that they have. And so why not get Mueller up there to testify. I would focus very heavily on the first part of the Mueller Report the Russian interference.

VLASTO: You think that's more significant than the obstruction part? In terms of impeachment. JANE SHERBURNE: In terms of impeachment? Heavens no.

VLASTO: Okay.

SHERBURNE: But, but in terms of threats to democracy in America? And in how our system of, you know, Democratic elections is supposed to operate. Yeah. I think that's a terrible threat. And I think it's, it's been lost and I think they could use a hearing with Mueller to focus on that. And then I would focus on issues related to why it matters to be a truth teller. Why telling the truth is important. We've become numb, inoculated to lying in this country. And to have Mueller who lays out lies in great detail on his report. Talk about the lies. I think would be, you know, could be powerful. Then, I wouldn't waste time with Barr. I wouldn't waste time with McGahn. I would move as quickly as possible to a censure motion. And just conclude.

VLASTO: So you don't think there's enough for impeachment?

SHERBURNE: I think there's plenty for impeachment

SANTUCCI: Really?

SHERBURNE: But I think that's a mistake for the reasons that you say Chris. I think it would. I think it would backfire. But I don't think the Democrats can just let this lie. I think they have to respond in some, in some way.

SANTUCCI: So, let, let's just say that doesn't happen. Let's say that we do move towards impeachment. How in your experience, how does a White House if they were functioning properly--how would a White House deal with impeachment hearings how would they staff up, how would they adjust, how to do things sort of pivot in the West Wing if that's something that we would see happen here.

SHERBURNE: Well for better or for worse, I had left the Clinton White House before the impeachment proceedings started. And I know that they had a team of lawyers that was devoted exclusively to dealing with those issues. And you know, of course you're developing and nurturing relationships that you have on the Hill and you're trying to make sure that you've got, you know, factual records down. You're trying to understand the difference between what you're representing personally on the part of the president and what is a White House, you know, office of the president kind of issue. It's very, it's very complicated but that means that you need to be working closely with the president's personal counsel as well as White House lawyers.

VLASTO: David, David Bossie said that this White House is not ready for it.

SANTUCCI: No.

VLASTO: He, he was saying they needed more. He complimented the Clinton example of saying there were separate, you know, you had a separate group dealing with scandal, basically, so the government can function. You know, this White House doesn't operate that way. It seems like Donald Trump's orchestrating the investigation himself.

SHERBURNE: Well but that's, well but that's because we wanted to minimize the investigative impact and downplay it so that the president could focus on the positive agenda. That's not what this administration wants to do. They want everybody focused on the subpoenas and possible impeachment. And when people start backing off on impeachment the president ratchets up again. And that's, that's the purpose. That's, you know, so, so that people are paying attention to all the other things that they're trying to accomplish.

SANTUCCI: But do you think, though, for this moment they want impeachment because it keeps the engine up on the base. But do you think they even realize how aggressive an impeachment hearing would be and how many stones it would overturn as that was going on?

SHERBURNE: maybe it's a game of chicken. I don't. I don't know. It's, it's a tough. And it does, you know, as we've seen, it does open the door to permitting or giving the courts an opportunity to permit greater discovery. But by the time we get into that land we're gonna be well into the 2020.

SANTUCCI: Past 2020 yeah.

MOSK: I was going to ask you about that. I mean in college basketball coaches are rated on really clock management.

SHERBURNE: Are you really going to do a sports analogy with me? (LAUGHS)

MOSK: You know - well clock management. So there is - there are four quarters in a game and. And how are the Democrats on the Hill doing with their own clock management? Do they have time to do what they need to do to achieve what they want to achieve in this current? On the schedule and the pace that they're on right now?

SHERBURNE: I don't, I don't think they do. I don't, I don't think - that's why I think that they've, that they've proceeded to join the issue on some of these subpoenas and the obstruction issues because they can't afford to wait. They're trying to speed it up. And that may account for you know or result in having chosen some poor, poor cases on which to test.

MOSK: So the time constraints really benefit the White House in this scenario right now? Just because they can drag this into the campaign season or is that - are there advantages to the Democrats by having this dragged into the campaign season?

SHERBURNE: I don't think there's any advantage to the Democrats. I think this is all part of the, the Republican strategy and I think it's, you know, I think it's smart.

VLASTO: And do you worry, I mean you're a very fair minded attorney and lawyer that the tax return request maybe in this case - doesn't have enough of a predicate for them to ask for his tax returns? I mean what, what reason do we have? Yeah we think he lies about his money. Barbara Comstock said on this podcast that they thought during the Clinton times we couldn't ask for the tax returns or subpoenaed the tax returns because they thought it seemed too Nixonian?

SHERBURNE: I find that odd because they released their tax returns. What is she talking about?

VLASTO: President Clinton didn't put out his tax returns in 1992 it was only after -

SANTUCCI: ‘94 he put out 12 years' worth.

VLASTO: ‘94 and then it was - after the oversight. If you actually look at the tax sheet she technically is correct.

SHERBURNE: Be careful lawyer.

SANTUCCI: We had, we had to check that. Yeah.

VLASTO: No. No but. But once again, though, I think it's what you said earlier though it's the idea that there were threats maybe made, but no one wanted to follow through on the threat. And there was always compromise and then the Clinton, the Clintons put out all 14 years of tax returns.

MOSK: Although the law as it's written right now really favors Congress heavily. It doesn't, it doesn't even require a subpoena. It says that they can that specific members of Congress can make the request to the IRS. They don't have to provide a reason, they just can make it on demand and the IRS is supposed to turn it over. I wonder if there's some of fear of having that law constrained or dial back if it's, if it goes in front of a court. An unfriendly court.

SHERBURNE: I don't know. I keep seeing reference to the words that the IRS shall produce the records. But I know there's been a lot of legal research done on what would constitute an appropriate request. But I'm - but that's not my. I don't know that.

SANTUCCI: Just going back to something you said earlier about how you were able to negotiate with the other side of the aisle when it came to Capitol Hill. Do you think at this point because the fact the way things have gone that nothing's been turned over we don't want to comply with this. We're not going to respond to that. Is the relationship too fractured at this point to actually get anything done or get the train back on track? Because if they were to head towards an impeachment hearing and you said to try to, you know, curry favor with the relationships they've built. Seems like they've taken any possible relationship and set the blaze at this point.

SHERBURNE: I don't know you should ask Barbara Comstock that question, you know, I mean we, we had a very fractious relationship with that House Oversight Committee and the staff. It was a difficult, difficult back and forth and you know?

SANTUCCI: But how'd you make it work though?

SHERBURNE: Well you know a lot of it was the tactics that you see now. The White House slow walks the response, you know, my approach was always to try and avoid joining the issue. Always keep the negotiation open so that they can never issue their press release saying, you know, White House hiding A B or C.

SHERBURNE: That was, that was part of a strategy and it frustrated them. But they, we always came to some sort of an accommodation at some point where they wanted. They wanted the information badly enough that they were willing to compromise to some extent in order to get it in a timely way or a way that suited their time clock. And we were successful in slow walking it sufficiently so that they were pressed into compromise. It's a dance and you know, you do it. You try and keep good humor and good relationships about it but it can get very, very tense.

VLASTO: Well I also say a lot of the, the big difference too is unlike in the Clinton days President Clinton stayed out of it. In some ways. Here President Trump is, is orchestrating the whole thing, is orchestrating the whole battle. President Clinton left it to surrogates like yourself to deal with it. So that's why I think it's a whole different animal.

SHERBURNE: Well it is. It's - I think it, it took a little while to get that team to work because the president, the first lady needed to have confidence that the issues were under control. That it was, that this team that we had established in the White House could actually handle it all and once they had confidence then they, they really, they really let go and we ran it. I don't think this president has the capacity to do that. He's too impulsive.

MOSK: Where do you see this headed? I mean the subpoena fight in particular, setting aside the impeachment question. Your sense of the courts and how they're going to parse through all these subpoena demands from Congress and, and the blanket refusals from the White House. Where does this end up do you think? What's your crystal ball show you?

SHERBURNE: I think ultimately the Congress has very broad oversight authority and that the Trump administration will be compelled to produce at least a substantial portion of what the Congress has requested. But I think it could take a very long time and become essentially irrelevant to any real political outcome in this in this battle.

VLASTO: Jane thank you very much for coming. It was great to see you again.

SHERBURNE: Thank you. I enjoyed talking to you.

VLASTO: That's all the time we have for today. Thank you for joining us--please be sure to hit subscribe leave us a rating. Thanks to our producers: Kaitlyn Folmer, Treavor Hastings and Shannon Crawford. And for my colleagues: Matt Mosk and John Santucci. We'll see you back here next week, for another episode of the Investigation.