general keane: when i look at it and try to speculate about what is driving some of our decisions , what is driving our narrative, one of the things i have observed since i have been closer to it in recent years than when i was when i was a younger officer is that most administrations, democratic or republican, have a tendency to overreact of what took place in the previous administration. and this one is no exception to that. making it a principle of the administration to a guarantor that we will not be involved in any military activity in the middle east or in south asia that could lead to another protracted war.

and i think that's probably a good principle. but the issue is, that should not trump what's necessary to do given the fact that isis represents a new organization with new leadership, a new vision in terms of its global and regional strategy and that it is a barbaric organization committing genocide, assassination, enlavement and raping of women, as we all know and that it is fully intent on conducting a religious war based on their ideology. and we cannot let the rearview mirror of iraq and afghanistan so disincentivize us to deal with the reality of what this is. and i'm convinced that the american people, when we inform them and we educate them and we take them through this, i mean

i dealt with the bush administration, they never truly explained what radical islam is and why it's so dangerous. we never took apart the ideology. we never truly fashioned a strategy to deal with it in a comprehensive way and here we sit with the same problem today. >> i think that's a great point and something that i think -- my own view is that you are directly on point. if we level with the american people and talk about the threats, talk about the strategy that is important and many of you have been raising that, i think everybody recognizes once we lay that out what we would or wouldn't have to do to address it. let me ask a related question from -- for mr. kagan.

you written on the long war, the idea that sometimes we look what's going on with isis and other issues in the middle east and think, we are going to have this done in 18 months, 20 months, maybe a couple of years, do you think that there's an importance to having the leadership, both in terms of congress, but particularly the executive branch talk more broadly and again level with the american people about that this might be a generational conflict. this might be akin to the cold war where we have to lay out a broad strategy and your point early on about the need for a strategic concept is so important. lay out a strategy that the executive branch and legislative branch and the american people can get behind and then execute it. and level with the american people that this might not be done in 18 months. so would have any of you -- dr. kagan, i know you have written about the long war.

feel free to talk about that. when you talked about the strategic concept, what is it, 20 seconds left, that's a big topic, but point us to the direction of your wrigs or principles, that would be helpful. dr. kagan: this is a generational struggle that we're in at least. >> we don't talk about it, do we? dr. kagan: the point you opened with is an important one, the administration's narrative is that we are ending the wars and impossible to develop a cohesive strategy for fighting the wars. these are battlefronts on a common war that is going to last for a long time and we don't get to end it unless we win. you don't get to decide -- we may not be interested in war but war is interested in us and this is going to be a problem and we need to level with the american people as you say, as a basis

for developing any kind of strategy. i totally agree with you. >> we need to find what we want to achieve. quite often over the last 14 years, we define our objectives in terms of what we are going to counter and defeat. that's important. but what has been missing i think comprehensively, whether it's in iraq, syria or afghanistan is the definition of what we actually need to leave behind in those societies, how we help others help themselves. i do believe at certain points president bush did this, certain points president obama does this, talk about the long-term nature. if you look at their documents

as the administration used to say about afghanistan and iraq we are going to end it. extend it into who will be the next president. your point is terribly point and i have written a book about this, too. it's important because for our own society, there is a new generation called millenials that are actually this year larger than the baby boomers. our leaders aren't messaging in a cohesive way and part of it is because of the partisanship we have in our politics. and i'm a strong centrist and we need to bring the american people along with us and something senator mccain has said earlier and before is that the debate we need to be having on the authorization on the use of military force, action on it. this is a moment which has not been seized. you can criticize the administration or criticize whom ever in congress, there has been

this muddle. and we actually haven't defined for the american public in the way that fred and others have argued here, that the u.s. has a special leadership role in the world. countries in the region are still looking to us to actually do more. our values are better, but what happened to the battle of ideas? we had that debate for a couple of years after 9/11 and kind of rediscovered about that, but our attention deficit disorder and our society and as leaders in congress, we have the responsibility to talk about this in a sustained way. >> we have all had one round but if anybody has a second round. i'm going to seize the moment here to continue for a few moments. senator kaine: significant armed troops. qatar said if there is significant ground troop presence from the united states, and we are recruiting bonn ansa for isil. the meeting occurred with the saudis, so they are willing at

least somewhere to take some significant military action to deal with threats in their own region but said u.s. ground troops against isil would be problematic. i didn't read that to say not even one or under no circumstances, but they were very wary about the notion of u.s. ground troops. we are trying to work that out on the foreign relations committee as we think about an authorization.

are they wrong or if they are right, how would you square that with u.s. presence, u.s. should port should mean? >> i actually think for all of the criticisms of the obama administration strategy, some of which i share, this is the one component that didn't exist before. it has been underutilized. the summit last week, though

there were news articles about it, there is a conversation to try to build on what can we do in partnership with them. if there is one thing we should have learned from 2003 to 2010 or 2011 in iraq, yes, u.s. forces can have an important impact on the security situation there, but there are downsides to having a visible presence. i don't think anyone on the panel was talking about understandably given unforced errors. the regional dynamic has shifted quite a lot. the region u.s. in a very visible presence on the ground does have significant downsides for their own legitimacy with their own population.

the region is taking action in what it sees as its own self-interest in terms of a multi region. honed in what my he can per tease and focus is, is working with those reliable partners from jordan to the united arab emirates to saudi arabia and the kurds and some of the iraqis to take what has been a significantly large amount of resources and activity and channel towards more constructive purposes. i don't see that happening in yemen or yet in syria. and i don't see that happening in many other theaters. the basic answer to your question and the leaders you spoke with are reflecting a very

popular view at the popular level in their countries as well. they understand that for whatever happens in the iraq war , the u.s. is better sort of seen as a backbone of support as opposed to out in the front. dr. kagan: we need to distinguish between the ideal and reality. it would be better for regions to be involved with the caveat that we do have a regional war going on and the regional actors we are talking about are on one side of that. we have to think about what the iranian reaction would be. i don't think we would enjoy that very much. and i think it might be worse

than the iranian reaction to the deployment of u.s. forces in there. it is a complicated dynamic. in the world of reality, the jordanians don't have the resources and the military aren't capable of providing the kind of assistance to iraq. they don't have it in their force structure. senator kaine: how about the turks? dr. kagan: the turks might be able to provide some of it but no one provides the capability that the u.s. provides including the turks and they would be dependent on us. again, i'm not sure that the optics of the return of the ottoman empire would be better than the optics of having a limited amount of ground troops on the ground. the regional leaders are expressing an ideal version of a strat by -- strategy you would like to see. an amuf is where micro manages on what forces can and cannot be sent and it is up to the

president to choose how to fight a war that congress authorizes. in these circumstances, it would constrain the deployment of ground forces which is exeemly necessary, would be extremely damaging. >> this reminds me of the myth i heard in iraq about u.s. forces were the generator of the antibodies that caused the nurns. it was a misreading of what was going on in iraq and the drivers of the fight. we have to be focused on what are our u.s. interests and how do we defeat this enemy. and the seeds of strategic failure are found in failing to define that enemy, define our interests, the costs and the

risks. and if we do those things and we think about our interests, it will drive us to engage more seriously than we have in my mind. the u.s. presence in iraq is not going to dramatically increase that foreign fighter flow. it is being driven by a range of issues. and the different types of recruits that are being pulled in. the driver within iraq is not the u.s. presence, it's shia domination, it's the fear for their future and their own lives and lack of political inclusion, et cetera. that's the issue we need to get our head around. senator kaine: -- general keane: i agree what everybody said here and we talk past each other on this issue. no one here certainly is advocating that we should have ground units that are occupying towns and villages and securing them and therefore protecting them from isis attack that would put us right in the mainstream

of defending against isis. i think that's unnecessary an it would be a mistake. but also when we have a policy that says no boots on the ground, that doesn't make any sense either, because it denies us from having advisers that have a role to play. it denies us from forward air controllers having a role to play and other capabilities that are unique to us and we elaborated on what they are. they would make a difference in what the 60 nations have agreed to do, which is support the iraqi ground forces, as imperfect as they are. but let's give them a better hand to play than what we are

doing. and i don't believe there is a single nation that would object to anything of what we are describing are enablers that would make a difference. second, when it comes to syria i think this is the difference. and if you spoke to them about that, you know what their view is about assad. we have dealt with that in their regime and they know full well to deal with isis and syria, this is going to take a ground force and they would have to contribute to that ground force. i would think that they would logicically ask us to participate in that with them. i don't think we would necessarily have to be the largest contributor, but i think

we would have to participate. and i think they would want us too, because of our experience and our capabilities if we would actually lead it. maybe not. but i think those two things would probably be on the table for discussion. and i think it's reasonable that that kind of allocation of u.s. capability and leadership to deal with isis and syria, is in fact an eventuality. >> senator blumenthal, do you have questions for the panel? senator blumenthal: thank you for being here and thank you for your eloquent remarks and i was here in the beginning and i was diverted to another committee meeting after our vote. i want to come back to what mr. kagan was describing as the evil of isis, isil. and the absolutely horrid unspeakable acts of brutality that they commit, mass rape, mass murder and i agree with you that they are one of the most evil, maybe one of the most evil instution in history.

we can argue about it. but when i go home this weekend, most folks are going to ask me what's the threat to the united states. and 50 years from now, others will be sitting where you are and where i am talking about probably other evil institutions that are committing mass brutality because that seems to be unfortunately the nature of the human condition. that has happened throughout our history. and i think the ordinary person in connecticut over memorial day weekend is going to wonder what our role should be in stopping that from occurring, unless there is a threat to this country. so perhaps you and others on the

panel could tell me what i should tell the people of connecticut about why the united states should be involved, whether it is special operations forces or better air support or whatever the involvement is and why that matters to our security. dr. kagan: as a connecticut native, i'm concerned about what you have to tell the connecticut people to get them on board with this. as i was driving to virginia the other day, i was driving past the holocaust museum and saw the sign up there, which is never again. one of the things we need to tell the american people is that it is a core american value to take a stand. we do it too late, we try to talk ourselves out of it, but ultimately we generally do it. that's one of the things that

make us america. i think we shouldn't use site of that fact. the reality is isis poses a clear and present danger in the united states homeland. it has already been encouraging, cone doning and applauding lone wolf attacks here. it has made it clear that it has the objective of attacking america and the west, and it will do that with the resources of a mini state behind it which is something that we have never seen before with al qaeda. this is not a group of bandits hanging out in the bandits of afghanistan, and that was bad enough. but if we reflect on the

resources isis has access to controlling fallujah, ramadi oil infrastructure, the resources that were in various universitys in mosul and so forth. thousands of fighters, tens of thousands of recruits. this is an army. and this is an army that is very sophisticated and has an ability to conduct operational military planning and execute it that is in advance of anything i've seen from any of these groups and it has the claired etc. intention to come after the united states and shown a willingness to do that. that is something i think the people of connecticut need to be concerned about. mr. keane: i agree with what fred is saying. there are groupsmark of them self-radicalalized or already radicalalized -- radicalized and they're motivated to take action. seen plenty of evidence of that. the longer you permit the organization to succeed, can you imagine what has gone out on the

internet from isis around the world as a result of the success in ramadi and how that has motivated others that isis in fact is winning and they're standing up against the united states, they're standing up against these strong allies of the united states in the region and europe and they're actually winning. so this huge -- so there's huge danger there. as long as you let this organization stay and we don't decapitate it, then the motivation and inspiration of self-radicalization continues to grow, that's one thing. the second thing is in the region itself, and we showed on a map, they're moving into other countries, at the same time they're defending what they have in syria and iraq and expanding. this is what make this is organization so very different than what we've dealt with in

the past. they're looking at libya as -- because of the social and political upheaval in libya, and there's hardly a government there and anybody to push back on it, they're going to put huge resources there. why are we concerned about that? our interest in the region, our interest in north africa, that would be on the southern tip of nato there, not too many miles away from italy. in afghanistan, they have expanded rapidly beyond most of our expectations, i would assume, into eight provinces in afghanistan. now we have interests in afghanistan for obvious reasons. so this is a movement that we can tie directly to the security of the american people and to our national security objectives

of the united states in this region and in south asia. senator blumenthal: if i can put it a different way just to conclude, it's more than just -- and by the way, american values are directly and inevitably linked to stopping human atrocities, i agree totally with you, mr. kagan, but our interests go beyond those values and by the way, all of the reasons that you stated are the reasons i voted for the training and equiping measures that have been implemented but my frustration is that as you also have observed there is a huge gap between the goals and missions that we've outlined for the united states and the actual action that we're undertaking the train and equip activities are way behind what we might have hoped by this point and there's no clear timetable for really achieving the level of capability that we expected or

hoped. i hope this has been a very sobering morning. i thank you all for being here. thank you. senator mccain: i also want to thank the witnesses. it's been, i think, helpful to all members and this is not an issue that's going oy way, so i'm sure that we'll be seeing you again. thank you. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2015]

>> federal judges hear oral arguments in the pm the former virginia governor bob mcdonnell's conviction on bribery charges. then congressman michael mccaul on nsa surveillance and the patriot act. the senate armed services committee on the fight against isis in iraq and syria. here's some of what we are covering on c-span tomorrow. vice president joe biden delivers the commencement address at the u.s. naval academy in annapolis, maryland. live coverage on c-span. the cato institute hosts a forum on community policing and law enforcement in baltimore with a look at the federal jobs programs and whether police body cameras can help regain trust. live coverage at noon eastern on c-span. >> the new congressional direct

three is a handy guide to the 114th congress with color photos of every senator and house monitor -- member with twitter handles, photos, district maps, and map of capitol hill, and a look at congressional histories and more. it's $13 $.95 plus shipping and handling through the online store at www.c-span.org. >> former virginia governor bob mcdonnell and his wife were convicted on federal braver -- bribery charges. he has appealed the conviction to the fourth circuit court of appeals where his lawyer argues that the statute's definition of "official act" is broad and that jurors were improperly influenced by the case. here is the oral argument. this is just

>> good morning. we are happy to hear arguments in our first case, the u.s. versus mcdonnell. before you begin, i want to reiterate that we have been generous with the time of the or arguments, and we expect you want to honor that generosity by directly answering the question . >> with that in mind, mr. francisco? >> thank you. no francisco. governor mcdonnell simply set the meeting and pose for a

photograph with jonnie williams without asking anybody to do anything specific, he committed a crime. nobody ever thought that was a lot. if it were true, it we give prosecutors -- the district court compounded a series of rulings. including refusing to ask basic question, have you formed an opinion about the governor based on your exposure to pretrial publicity by refusing to sever his wife's trouser that she could testify on his behalf, and by refusing to allow the governor to explain to the jury the full scope of jonnie williams. >> is the jury instruction your most important argument? i want to be sure we get to what you regard it your most persuasive argument. >> our most important argument is the official act argument.

our second most important issue is the issue of pretrial publicity. turning to the official question, in order to engage, a government official must make or pressure something to make a specific decision on the act of the. the line is between access and advocacy on the other. here, governor mcdonnell never crossed that line and the jury was never told that that line or any other line even existed. case for example, the health care recession. it was nothing more than a cocktail party at which no business was discussed and no decisions were made, they cannot possibly be an official act. the same with respect to the meeting with ms. host up her. ms. hostettler repeatedly testified in this case.

other than attending the meeting, governor mcdonnell never asked her to do anything which is why she felt empowered as soon as that meeting was over. judge motz: it sounds like you are arguing the fact to a jury. what i'm interested in is what the jury instruction was that you wanted, how it was that correct statement of the law how it was not covered in -- how was so important that the failure to give it needs to be -- mr. francisco: we believe what that during instruction did and the instruction that was charged did not do was to explain -- >> -- mr. francisco: yes, explain what official acts were. the key flaw in the instructions of the court gave was that they swept in lawful and unlawful conduct because the district court instructed the jury --

judge king: some might say that has to be looked at in context. mr. francisco: i would completely agree with that. judge king: context of the facts, what is going on. we have to look at it, as you know, in the light most favorable. mr. francisco: yes -- judge king: -- when it is a jury -- mr. francisco: -- know when it comes to a reversible ever. on the instructions, yes, you do need to take the evidence in the most favorable light to the government and we submit that even taking it in my that is favorable to the government, none of the conduct crosses the line. the instructions here even in context these instructions were over-broad, because the instructor the jury that virtually anything that a government official does an official capacity, including every step to achieving an end, constitutes an official action.

judge motz: that is not quite right. so it has to have -- there always has to be that connection. mr. francisco: that is insufficient when you give it an expensive gloss. judge motz: it seems to me that your instruction on 753 did precisely that he it gave it an expensive gloss. mr. francisco: i don't think so at all your honor. our instructors have a series of limitations all of which the court rejected. they told the jury that the instruction encompassed all several practices, including every step toward achieving an end. judge motz: i thought it said could. mr. francisco: the instructions

says includes. judge motz: there were a series of things that you object to that the district court instructed including this or that. i thought i understood your argument that was that there wasn't any countervailing instruction that it didn't include this. is that the gist of your argument? mr. francisco: it is both of those arguments, we are making both. first of all, if you take the instruction on its face, it is overbroad, it is very much like the instruction the first circuit. judge putin explained that the official act definition was not on its face objectionable, on his face, it was summoned to other instructions that were given. the reason was objectionable in that case was because it also swept and potentially lawful conduct. that is precisely what happens here. as the government accurately argued to the jury in this case under these instructions, an

official act could encompass a thing as innocuous as a foot of opportunity, that is because every step toward achieving an and is defined as an official act but the of court compounded that separate error by refusing to give any limitation on his otherwise all-encompassing instruction, including limits that are drawn straight out of this court's cases, light the jefferson case, the fact -- and i'm coding -- the fact that an activity is a routine activity or a subtle practice of an office holder does not alone make it an official act. obviously correct but this record -- this court refuses to impose limits on his otherwise all-encompassing instruction. here's another one. merely arranging a meeting or attending an event or making a speech or not standing alone official acts, even if they are subtle practices of the official. that is based on citizens united and comes out of the instruction that chechen rebel gave in the ring case -- that judge who val -- judge houvel.

the district court even refused to give a standard goodwill gift instruction, we propose quote a gift or payment given with the generalized hope of some unspecified future benefit is not a bribe. word for word at of jennings. here, one of our principal arguments without the governor believe that jonnie williams was getting goodwill gets in the expectation that he would give the axis and credibility that comes with hobnobbing around with important officials. judge king: the defense year was good faith. judge motz: that was one defense. judge king: that is what you said to the judge, you set up a crucial defense you called it is good faith. and you got a good fit construction. judge motz: we did, your honor. he said if the governor acted in good faith, did not have criminal intent, and there could be no crime, there would be no crime. how could it be better for you? mr. francisco: if the jury

doesn't understand the true scope of the official asked the jury does not understand the difference between a goodwill gift of -- permissible goodwill gift -- judge king: if he acted in good faith, it does make a difference. mr. francisco: that is not right, your honor. judge king: it is because that's the instruction was, if he acted in good faith and he could not have criminal intent and there would be no crime. mr. francisco: if the jury believes -- judge king: that is what you argue to the jury -- your closing argument. mr. francisco: that was one of our arguments. judge king: i know that you close it off. you closed at the argument off after getting instruction coming close enough by saying he acted in good faith and you quoted the instruction of their would be no crime, no criminal intent. mr. francisco: that is because after every instruction requested, that is all that we were left with the argue was good faith. judge thacker: so you were not seriously impaired in your ability to conduct the defense in regards of not giving the

goodwill argument jury instruction. mr. francisco: absolutely. judge thacker: did the government in its closing -- i know that you just said you withheld or were not able to make some of the arguments you had planned to give in the jury instructions, to the argument take advantage of the failure to give the instruction out of jennings that you wanted? mr. francisco: it drove a chalk through it. the government repeatedly argued to the jury that everything is innocuous as posing for a photo opportunity. or simply arranging a meeting without anything more. all of those things constituted official government action. he goes at the core of our argument. i think that no reasonable jury could clue the governor mcdonnell violated the law. even if you were to disagree with me on that, it is altogether possible that the jury did agree on the facts, but under these instructions, the jury still would have been required, or the very least authorize, to convict, because

everything as innocuous as sibley hosting a cocktail party so be suggesting a meeting without requesting anything happen at that meeting, as he testified, simply asking your lawyer to see you about an issue, another one of the official acts, under the instructions the district court gave, the jury was required or at least on the rise to conclude that those were prohibited official acts and that his current -- clearly reversible error for the same reason as -- two closely analogous cases that have faxed far worse than this one. the government theory is that there was no express agreement. he conceded that in his closing argument. no express agreement. likewise, jonnie williams notwithstanding his triple of the did you would only testify to an implicit agreement of the governor would provide some form of unspecified help, clearly not enough under the law and that fits with the -- in the face of the classic goodwill -- that is what the government's the real among was that you could infer a

agreement to my pattern of gifts and unloads in a pattern of official acts on the other. if there were no official acts, there are no patterns from which you can for a corrupt agreement. and here, none of governor mcdonnell con across the line the jury was not told that that line or any other line even existed. judge thacker: the jury was told by the statute to begin with. and that upn your closing argument with that quote. so, the term official action means any decision or action on any question, preceding or controversy, which may or at any time be pending. in other was, if there is not something pending at the person who is giving benefits to the public official, if there is something pending in which he is giving the benefits come up there is no crime. it is true. if there is, the net makes it a

crime under the statute. mr. francisco: two responses. i submit that the four of us could argue over the meaning of those words until the cows come home. but to expect a jury to figure out what those words mean is implausible, which is why the instruction immediately after quoting the statute says official action as i have just defined it includes those actions that have been clearly established by settlor practiced as part of the public official to -- position traits of it is telling the jury what i just told you, this is what it means. in a goes on to say that includes every step toward achieving an end. which is why the government could accurately argued that something as innocuous as a photo opportunity was included. notwithstanding that defining an official act of potential included within under the sun, it refused every conceivable limit on that otherwise all-encompassing instruction. going back to the issue about whether the statute alone was

sufficient, it clearly was not. it was defined broadly enough to allow the court to find perfectly lawful conduct was swept -- and here, i think if you properly instructed the jury that in the line between axis on the one hand and advocating for specific decision on the other nothing would qualify. i think sun diamond also answers your pending -- when the secretary of agriculture gives a speech to farmers on usda policy, even though he clearly has issues of you is da policy pending -- usda policy at any before and that is not an official action, if i can offer another example -- judge king: the gratuity statute -- mr. francisco: yes, your honor. judge king: we talked about it in the jefferson case. do you think he is wrong? mr. francisco: not at all, i think he did not address the issue. here, the line is between axis and advocate for a decision --

he was advocating for specific decision, but the line was a relevant, goes to the heart of our case here, the jury was never even told that it existed in governor mcdonnell's condit did not cross it but if i could offer you another example, suppose jonnie williams asked the governor who should i talk to about getting studies for net of block -- that is an secretary -- excuse me? judge motz: i will give maccoll and arrange a meeting. mr. francisco: even without that part of the hypothetical, it is still an official act in the government's definition, simply answering a question. that is the reason why the government's instruction is fatally overbroad, he clearly sweeps in lawful conduct. i would submit that if you take the next step and say, by the way, i will arrange for you in meeting, that likewise is not cross at the line because if it did, you really would be opening the net for federal prosecutors to pick and choose their targets amongst every elected official in america.

member, the official acted definition is not limited to quid pro quo bribery. it also applies in the gratuity context, the same definition. that means that if a wealthy donor makes a campus -- donation or maybe donation to a charitable foundation after getting an important meeting at say, for example, the state department, both the donor and recipient of the donor are on the hook for a federal gratuity prosecution. nobody has ever thought that that was the case. judge motz: did you have an argument in front of the court about these instructions you go mr. francisco: absolutely, yes. judge king: is that transcribe summer? mr. francisco: yes. judge king: -- is that transcribe somewhere? mr. francisco: yes. as we got two different points in the argument, i asked the court, would you like to repeat what i said at the beginning --

judge motz: did you offer the court a lesser part i don't know if it is worth us discussing but i don't than the instruction on 58 that all of it is in fact the law, so did you -- was there any discussion about putting part of it in? the first two paragraphs? mr. francisco: yes, there was. judge motz: so it is just the last paragraph? mr. francisco: yes. we requested the following providing your credibility or reputational benefit to another is not in official act, define and official act the questions must decide are both whether the charge constitutes a practice and whether that conduct was intended to or did in fact influences specific decision the government actually makes. judge motz: i'm on 753. what part of 753 was sort of your ultimate fallback position? or was any part of it? you to

say all the nothing? the language that you -- ok, maybe if you can help me with 753 since there are lots of volumes here. mr. francisco: you are looking at the proposed instructions. judge motz: i understand, but it every charging conference i have been to, there is some sense of give and take, and when i was asking you is in the charging conference was there any give-and-take yet coded you say all right, some of these sentences are not required by the law to it at least, is my view as we sit here. so which one did you think -- mr. francisco: we reduced it to two specific request. this is that pages 73 40 -- judge king: so you changed? mr. francisco: first he wanted our proposed instruction was her request. as an alternative, we requested that the court give two additional instructions at pages

70-40 and 73-41 at the appendix. and i can read it to you or i can -- judge motz: this language -- mr. francisco: not verbatim. your honor, i think it is quite clear that as an sun diamond, as in the rather case, the district court claim to give an all-encompassing structure that swept in both lawful and unlawful activity. i would like to focus on one last point here before turning to publicity. our propose instructions both in the instruction itself another charging conference were clearly corrected statements of law that went to the heart of our case. but even if you disagreed with that, just looking at it in instruction on his face him a clear the object to that instruction on its face as being facially overbroad, and that instruction is a facially overbroad for precisely the same reason that the instruction in virtually was overbroad. the cousin allow the court to conclude or allow the jury to conclude that awful conduct

like merely setting up a meeting, or merely hosting receptions, constituted a practice of government -- governors and was a step toward achieving and and and therefore was an official act, just take simply answering a question, who should i talk to -- or sippy posing for a photo block is the government argued to the jury was an official act. given this went to the very heart of our case, it was incumbent upon the court as this court said in the unit sits against arthur case, to instruct the jury with the clear -- the clearest possible terms of what the lines of distinction were by refusing to do that, by likewise refusing to give a standard goodwill gift instruction the district violated the principle and the jury was permitted to -- even if, it completely agree with us as to what the facts of this case showed. i'm happy to answer any further questions the court has on this issue. all of this, of course, all of

what we have been talking about assumes that we had a fair and impartial jury. here, however, we don't even know that we had that. this was one of the highest row file criminal prosecutions in virginia history. judge motz: both sides wanted questioning. and there was give and take about what questions would be on the questionnaire. mr. francisco: not really. we join the submitted a written questionnaire to the court, both of us agree to it. judge motz: that's as ike -- -- that sounds like -- mr. francisco: oh sure, before hand. it included a question, have you formed an opinion that the defendants guilt or innocence in exposure to pretrial -- judge king: and it started out? mr. francisco: when they said the jury questionnaire at the jurors, he struck at questions of the jurors were not asked him have you formed an opinion based on your exposure to pretrial publicity? judge thacker: were there any questions about pretrial publicity?

mr. francisco: the request is about whether you had been exposed to it and opinions. have you express an opinion to somebody else based on your exposure to pretrial publicity? as we all know, there are plenty of people, maybe not in this courtroom, but there are plenty of people who hold opinions but don't feel the need to express them. which is precisely why we in the government agreed that the jurors should be asked happy for you and opinion? judge motz: they filled up the questionnaire is, some jurors were struck, you got a group of jurors there, and you all said no, we need this question. mr. francisco: absolutely. judge motz: so the judge said what is your problem? you said there are eight jurors, and they came up and they were asked the question. mr. francisco: may i explain? judge motz: yes, but your time is running out. judge king: you only name eight. mr. francisco: your honor, if i could explain. judge king: they say you waived it.

mr. francisco: and he is clearly wrong. we got to the hearing, we specifically said for those jurors expose publicity, they needed to be question. handed out the questionnaire page 1690, he said, no i am not asking these questions, you have to make a determination based on the questionnaire that we have. that is when he conducted his en masse standup sitdown proceedings, stand up if you heard -- judge thacker: and what happened? judge king: everybody sit down. mr. francisco: do me updated the third time. and we said, we cannot trust the credibility. so, three times rebuffed. then, your honor, and this is what you are getting at is 1692, the defense attorney made clear that he was calling out those who had answered yes to the question whether somebody had expressed an opinion, the only thing we were allowed to ask your it and that is where we caught at the jurors. it happened next -- we caught at those jurors who had answered yes to the question have you

express an opinion comment on the very first one, we were actually mistaken, the government's attorney pointed that out to judge spencer and said judge spencer, that first juror they called up has not said yes to the question, has he express opinion? he answered no. here's what judges spencer said and i am quoting from page 6096. i'm sorry ma'am, we thought there was something in your questionnaire. so you may have a seat. it is crystal-clear that at every stage of these proceedings from summit the questionnaire to showing up at the hearing to objecting at the hearing-- judge motz: then what happened at the end? did the district court say to your side, do you have any more? and the response was not on pretrial felicity. mr. francisco: yes, but that's because he already ruled -- judge motz: it's very difficult to be a trial lawyer. judge thacker: i couldn't agree

with that more. [laughter] you have to keep making the objection. mr. francisco: and we made it three times, your honor. with all due respect -- we cannot possibly -- the one thing would also point out is that waiver is in a legal issue subject to review and i do not think that you can credibly read this transcript and conclude that we waived him on the asked for it in the written questionnaire inextricably struck. judge thacker: and they asked in the written questionnaire? mr. francisco: yes. the government actually agreed and beginning that the jury on to the question on it. the district court then again said no, here is what -- said -- my position is that somebody is expose a pretrial publicity they have to be individually poor dude and i have a list of question is. we had them up. you are going to have toyed and by specifically the people that you think should be struck for cause, and the court make an assessment based on the information that we have -- i am not asking these questions. not aware of the case anywhere

-- judge motz: but they did us questions that you brought to the table. mr. francisco: only the individuals of the court permitted us to bring up, which were not by definition judge motz: did they say developing up a? mr. francisco: he said you can only be of those that had answered other questions beyond mere exposure to pretrial publicity. because we specifically said we want to be but a question every juror based on their mere exposure to pretrial publicity. judge thacker: so when they stood up that they had been exposed to publicity -- you wanted to question each of those in the corporate not permit you to do so, is that what you are saying? mr. francisco: yes. judge thacker: the court permitted you to do seven and those of the seven is said the express an opinion. mr. francisco: exactly, your honor. every case -- judge king: they said, if you can give them a fair trial, said down. mr. francisco: precisely. judge king: nothing like that -- mr. francisco: when a set, and i

will close on this unless the court has further questions, no doubt each juror was sincere when he said he would be a fair and impartial to the petitioner but psychological impact requiring such a declaration before one's fellows is often -- who amongst us with as of the question, no when asked if you can be fair and impartial? that is precisely why an individual -- is required. >> thank you. >> may please the court, i would like prevent a pick up right where the argument left off on the pointed out pretrial publicity. when the district court said after doing the collective questioning, the defense counsel could bring up jurors that they wanted individually question the court to not limit in any

way the defendant to just asking about the question of whether somebody had express an opinion. i think if you read the transcript when the court started doing the individual question, of jurors, you will see that the defense counsel was setting a variety of reasons for why they wanted to question somebody. there was not a point with somebody offered a reason to question somebody in at the court said no, i am not going to let you ask a question at this juror about that but that is not sufficient basis, i think they fair reading of the record is what the court was doing with say, give me a reasonable question i juror when you give me a reason. richard cooke: but we're not going to sit here and a medically question everyone. judge king: how many were sitting there? richard cooke: there were 142. judge thacker: re: saying the

defense never said i would love to question all of the prospective jurors who were exposed to preach up illicit the? and the courts it, no. -- pretrial publicity. in the courts said, no. richard cooke: the way i would put it is the court said give me a particular to the juror reason and did not say you know, look, you can only call up people who said he expressed an opinion. judge motz: you'd entire to the questionnaire? richard cooke: i think he was looking for a reason out of the questionnaire, but there were 99 questions in the questionnaire and you could -- they brought up exposure to press, expressed an opinion, a variety of reasons for individual questioning, and then at the very end -- that the very end, he said, do you have anybody else? and they said, not on pretrial publicity. judge motz: i think my colleague

is asking you a question what happened before that. let me try one more time. judge thacker: did the government ever object to the defense asking jurors about their exposure to pretrial publicity? richard cooke: what happen is, -- judge motz:judge thacker: so, no? you said the court should ask about that in the questionnaire. richard cooke: right, there was a questionnaire where we requested a question about have you formed an opinion and the court did not -- the district court did not include the question but they were a variety of other questions i covered that. then at the hearing, when defense counsel wanted to question every single juror prospective juror, we said, how about as an intermediate step that you question everybody who said that they had followed the case very closely or somewhat closely.

in the courts a come i am not going to do that. judge thacker: so every jurors stood up when asked the question have you seen any pretrial publicity about the case? richard cooke: right. judge thacker: is that what happened? every juror? richard cooke: that is correct. the court asked two questions. set, first, if you have read heard, or seen some thing in the media, i want you to stand up. then the court said, based on what you have heard read, or seen relating to the case, if you could -- if you are in your mind able to put aside whatever it is that you heard, listen to the evidence in this case and be fair to both sides, then i want you to sit down. and that is appendix page 963. judge king: interview but he said down. judge motz: -- stand up sit down -- richard cooke:tz: the question that i have from what the opposing counsel said was that after

there had been this stand up sit down, they said, no, we want to have an individual velarde year of each one of these people to discuss pretrial publicity. is that what happened? richard cooke: right. judge motz: in addition court said no. richard cooke: right. judge motz: and eight people cap to the bench. so how do that happen? richard cooke: they said, we want to question everybody. then we proposed an intermediate step of the people who have said they follow the case there he closely or somewhat closely. and then the district judge hearing that said, look we don't do that is required but out of an abundance of caution that would be the better road to go on to it in the courts of well, you know what, am not want to do that i'm going to disappear my and devising, and his own devising was defense counsel, give me a reason, you've got -- i mean and terms of what he is saying, he is saying, you have got a very full

questionnaire, give me a reason for why you want somebody brought appeared. they offered up a variety of reasons and they cited them in a transcript, if you're be -- he will see -- judge motz: not just pretrial publicity but a variety of reasons? richard cooke: not just an express the opinion question. and the judge question a series of people and they said, we don't have anybody else on pretrial publicity. judge motz: did they ask questions and other things? richard cooke: there were further questions. the last part was about pretrial publicity, so there were some additional questions. judge king: -- richard cooke: yes, that's right. there are cases in baker and bailey, the court has said collective questioning is permitted and both of those cases involved collective questioning whether wasn't -- the defendant had not gotten what they wanted on a questionnaire.

so here, this case has the added benefit to full -- that the parties were armed with very extensive questionnaires and i court said, give me a reason and i will question further, so they did that, and they got to the end of it in the court succumb anything else and they said no. judge motz: can we turn the jury instructions? richard cooke: i would like to focus on the instruction that i think defense counsel has focused on as the key problem here, which is his proposed jury instruction number 58, on official act. judge motz: where is that? richard cooke: that is on appendix 753. that instruction is just erroneous. because what it says -- judge king: their proposal is erroneous? that is what you are saying? richard cooke: right. judge motz: that is why a probe

-- their fallback position, can you discuss that? richard cooke: the fallback position -- judge motz: tell me what you think is erroneous. the first two paragraphs and not erroneous. richard cooke: we don't take issue with those. judge motz: in a basically gave those. richard cooke: right. it is once again into this third paragraph that you start having errors they suggest that a government official decision on whether to attend an event or meeting or respond to a phone call are not decisions on matters pending before the government, and so they are suggesting that a meeting can never be an official act, and that is clearly wrong jefferson involved in of meetings that this court concluded were official acts -- judge motz: what about the next sentence? they are explaining, and in a say this is because mere ingratiate should an axis are

not corruption. would that -- ingratiate should -- ingratiation and access --short answer is no. but richard cooke:, i don't think of the supreme court in writing was meeting to provide a definition formally for bribery. and what i think it captures is the notion that if you lack an agreement -- judge motz: this is talking about campaign finance -- richard cooke: if you lack an agreement with corrupt intent to exchange things of value for official acts, then you don't have then, you have gone before -- beyond ingratiation and access. judge motz: did they ask for an instruction that included that sentence? in addition to the first two paragraphs? richard cooke: i don't believe so. what he has pointed to -- judge king: they only ask in the

context at which it was presented here, is that is what you are saying? richard cooke: no. there is this official action, specifically has it, now, today, he has pointed to starting on joint appendix page 7340, a fallback position that says, to convict the defendant, the official must receive the payment in exchange for performing or promising to form some specific official act. that takes out the course of content provision in it he says a gift or payment given with a generalized hope of some unspecified benefit is not a bride. that is the way, i suppose, of saying ingratiation and access. we had good instructions -- judge thacker: judge motz: it is a statement of the law -- it is word for word out of jennings, what you've just read, a gift or payment given with the generalized hope of some a

specified future benefit is not a bride. so that is a correct statement of the law. so where is that substantially covered in the rest of the jury instructions? the concept richard cooke: to read richard cooke: that concert discovered in two ways. one is that there is a good, essentially, i think unchallenged instruction on the requirement of an agreement. that what you have is both through conspiracy and you have the overarching quid pro quo instruction that is appendix 7669, which says, the official must receive the item of value corruptly in return for being influenced and performance of any official act. in that you have the good-faith instruction, which is judge kane pointed out, they labeled their critical defense and that is at appendix 7360, that the charge conference in the good-faith instruction captures this notion that if you are receiving the

gifts without an agreement, if you receive the gifts in good faith, but he were not guilty of the crime. and so, that is that point is substantiated -- substantially covered by the lack of agreement in the good-faith. and that provided them with ample basis to make that argument. judge motz: tell you what i would like you to address. it looks to me like the instruction that was given is correct as far as it goes. but it talks about things that could be crimes in a doesn't say anything that is not a crime. that is, i think, the just of what -- the just-- -- the gist

--it do that is a fair characterization? because they can be crimes, then it doesn't say anything -- it is not a crime. richard cooke: right. there are several points and would make in response of that. the first is that the key point is that the court begins by saying that the term official action means any decision or action on any question, matter, cause, preceding. so it has limited there, like look, this is the ultimate standard for an official act you have to make that. and as the court was pointing out, they began, you know, they are closing by emphasizing those very judge motz: restrictions. it seems to me that if the court had repeated that sentence every other sentence, but that might have done -- that would've made the charge more even, if you will. and that is what, you think that one engine of that -- or you had several points. tell me that your other points. richard cooke: the other points

are the you have considerable discretion in choosing the specific wording of an instruction from the district court. and you have cases like patterson where the court has said although more specific instruction might have been desirable, the defendant -- the discretion in choosing the particular wording, there is also the principal that as this court has said, good jury instruction has often that the council are you a factually in terms of a legal standard rather than making -- having making the judge make counterarguments for them. and there is the broader point that what happens is you have offered to the judge a large collection of instruction of the judge correctly concludes are wrong, then you have a long charge conference where a budget proposals are submitted to the judge, specifically that are either have their own flaws again or are things in

substantially covered at some point, the judge isn't responsive for coming up with a good proposals. judge motz: that makes a modicum of sense. mr. francisco: ultimately -- judge thacker: in a don't have to come with a good proposal here because the defense attorney done that. based on the lot. mr. francisco: they come up with the proposals that were erroneous richard cooke: or that didn't -- whether didn't train on the point that they are now suggesting. here is another would but the point. they have a proposing continue to propose a series of restrictions on official action that are just wrong. so they keep going back to something like a formal executive process, voting on bills, contracts, that is wrong under jefferson and him birdsall, you have to have some sort of policy-setting authority

at stake and that of course excludes a host of what lower-level employees and government to, and more the case of the prison officials the prison guards at taking bribes is a good example of that. they are not at the setting policy, they have arguments about the things the government provides, which, in jefferson, this court said look, a benefit that a foreign government in nigeria, for example, is going to account, and so, here, in contrast, we have studies that clearly -- judge thacker: can you give me this site again to where the good-faith instruction is located? richard cooke: that is a joint appendix 7692. judge thacker: is that the instruction that was actually given? richard cooke: yes. and the point where they said that is a critical defense is -- richard cooke: i found that-- judge thacker: i found that part, thank you. richard cooke: they have also

said categorically that meetings and events are never official acts and that is not true. tables and suggested that you have to accomplish the goal of the bride payment and that is definitely not true on cases like evans and brewster that said fifth almond of the quid pro quo -- judge king: you have to richard cooke: have a corrupt agreement? richard cooke:right. judge king: --judge king: you have to have a corrupt agreement richard cooke:? richard cooke:right judge king: you have to have a corrupt agreement? richard cooke: right. they have to come up with a more reasonable intermediate step it is never offered. judge motz: that it was that is why i was trying to talk about the charge and orbit hearing with the papers but there are lots of paper so maybe it was there somewhere. and maybe whether they came up as their fallback position with something that did not contain

errors and when you were sort of taking off these things, i think you are looking at the proposed instruction number 58 on the ja 753 and up the charge -- maybe you can tell me -- richard cooke: i rely principally on what they argue now at the charge conference. they have now directed your attention to 7340 and for that, i think it is covered, you know the concert was available. judge king: -- as a prosecutor, a long time ago, we used to screw rule 32 to require objections to be made after the instructions were given to the jury, but prior to the deliberations. that would boil it down. the judge would send the jury out and he would then hear

specific objections to the instructions as given. and then, after it was over he or she would tell the jury that they would start deliberating or bring it back into give more instructions. we always thought the rule required that, but you didn't do anything about that. you just obstructed them and set them not to deliberate, and nobody ever raised that kind of question. richard cooke: your honor is exactly right. judge king: courts are required to be done that way. rule 32 d requires that in order to preserve the points because then they boil it down -- you are not proposing instructions you are at the end of line. what would improve, what do you want now? richard cooke: the rules, your honor, is describing has a lot of sense in so far as what it does is it says after the judge

is actually read the instructions to the jury, that is the point where you have to register in objection so -- judge king: that is what the rule says great if you don't resurvey, and specifically, if you don't do it that way, and you raise an appeal, there is room for error. judge motz: did the race it? richard cooke: after they read the instructions, no. judge motz: did you make the objection? judge king: nobody said a word. there you go. richard cooke: in fairness, this is a point that -- at the charge -- judge king: if we had a better record for an appeal of things were done that way. richard cooke: if the charge conference -- judge king: whether it's preserved are not here. judge motz: i thought that the before or after the judge instructed -- before the jury deliberated, i thought that the defense counsel did say something like, we have our objections -- at some point, you

can say we have our objections we talked about -- judge king: that was before the instructions were given. the judge says he has been over there several times. richard cooke: and he told them your objections are preserved. which is why -- judge king: but we don't know whether he actually inserted him word for word, we assume he did. sometimes, as a say -- richard cooke: that is what we listen very closely -- judge motz: when you're calling was arguing maybe you can address that for me? richard cooke: in that case, one of the key points i think from that case is that you did not have the 20183 definition provided to the jury, you had something that was really broad where official action was defined in terms under the cloak

of office. which does not have the limitations here. and so, that case is one which -- we had straightforward constructional ever because we can capture the requirements of official action. judge motz: i thought that the piece he read to us allowed -- and i can't find it -- there is so much stuff -- the court said something like, defining, or reading just the statutory definition is not enough. no? richard cooke: i do believe that is in there. i may be mistaken, that was that is not my memory of the case. i think that the key point here is that it did not use a definition that fits the statutory language, and i would say the other thing, you know not everything in a case is

something that we agree with, and part of the problem is that not only did you have an instruction that didn't attract the definition, but the court's analysis did not stay tethered to that language either, which in this course opinion and jefferson, it was tied directly to that definition, and that is the way to go and that is how you analyze this case and that is why i think jefferson is a much more helpful case to the court then the other one. is because -- judge motz: to say nothing of jefferson being a president. richard cooke: that is exactly right. judge king: that was out of your district? richard cooke: it was. judge king: you say that this case was stronger than jefferson. because it involves an executive rather than a legislative? richard cooke: that's right. there offers several respects in which i think jefferson is a stronger case.

admittedly, the conduct their in dolls a lot more money and jefferson ended up with a longer sentence and so there are important ways in which what jefferson -- judge motz: more quid and more pro, so how is this a stronger case? richard cooke: in the sense of a definition of an official act and what was promised, in this case, what you have is ultimately what jonnie williams wanted was state-funded research studies and coverage in the state employee medical plan and that is more squarely in the realm of what governments do then the various trade and business ventures in africa that were at stake in the jefferson case, so in that respect, you have something that is much more core to what the u.s. government is doing and secondly, what you have is the influence that is being exerted here and the

official act that is being taken on the matters are all directed at a chief executive subordinate employee. jefferson was essentially lobbying these foreign government officials over whom he had pretty limited powers. they want the united states government to be friendly to them, but it is a different matter when you have somebody like mcclure or lazo, the doctors that these universities getting the governor of the state saying, but this is a good thing. i mean, that is just a very more direct -- when a highest government official -- judge thacker: before you finish, i want to ask you one question about the goodwill instruction that the offer. that was taken out of jennings. if the government objected that?

-- did the government object to that? richard cooke: honestly, i -- judge thacker: it is a correct statement of the law. richard cooke: in the context of -- judge thacker: -- richard cooke: their proposal on 73 40 still had the specific official action requirement which read out in our view, the course of conduct scenario, because in jennings is said both were true, like you could have an agreement for a specific official act or you could have this course of conduct theory which is what we had here. judge motz: included in that, the government found it objectionable but there may have been some follow-up back-and-forth that we will hear about. richard cooke: if what they had been offering was just the goodwill gift, i don't know that

we would have objected. what they are offering was a proposal that got rid of the course of conduct theory that has been repeatedly upheld by this court and in jefferson and in jennings both. judge thacker: they certainly argued gifts. richard cooke: that is true. judge thacker: no doubt about that, it permeates the argument. richard cooke: at some point, we don't have to offer instructions for them. they made multiple tries with errors in them. judge king: they have to offer correct instructions. richard cooke: exactly. judge motz: this case strictly as one in which -- this is not an earth shattering observation -- but that there was a lot of quid pro approval and there is not even much of an argument about that. the quote isn't -- the quyoo is

much thinner. richard cooke: i would say about that, the nature of the payments has evidentiary force in the sense that many see some of the getting $177,000 worth of payments in cash and luxury goods and that sort of thing, that is informative about people's motivations and what they are doing. you still need to meet -- you don't have to have the official acts performed, but there has to be an agreed-upon official act. so you have to meet the test. judge motz: will you meet the five actions? richard cooke: i mean, it it would have been a difficult case, but that would suffice. whether the government would have persuaded the jury that there really was an agreement here with -- without good faith

and corrupt an attempt to fraud i'm not sure whether we have secured in it -- a conviction. when you have a two-year pattern of conduct in the timing of it in this case is just, i think devastating for the defendant. you have him going on the vacation, he drives the ferrari home, that drive home, he lies about it saying, there is no recreational use, and of course there was. and 90 minutes after getting home, he is sending an e-mail to bill hazel who is a guy to fix that jonnie williams has got a lot of junk and refers to him as the tick tack man says, said the deputy in the morning to meet at the mansion on the planned studies of -- at uva and bill

hazel, despite his use, the next morning, you know, says, right away, will do. and officials go, and again, when you go to the winter when he is trying -- the defendant is try to negotiate a new loan with williams, he sends first the e-mail to williams asking for, you know, additional money and where he says do you want me to call your lawyers on the certificates in the documents? that was a reference to the earlier phone call about getting an additional loan. six minutes later, he wrote to ike saying, please say me and that the issues at uva and vcu when, just several weeks earlier, the first lady had written to the governor and jason ike saying, and that the clinical studies at uva and

vcu, said here's the info from johnna, he has calls into vcu and nobody will return his calls, and then the first lady follows up and says that -- judge motz: your time has expired, you can finish her sentence. richard cooke: the timing showed in agreement robustly in this case. judge motz: thank you very much. we appreciate your argument. mr. francisco: thank you. a few brief points. i technically accurate instructions, even assuming that it can be misleading, that is precisely what the first circuit held and i point the court to page 295 of that decision, where it said the cloak of office raised is that inherently a novel or objectionable way describing the official act but in this setting, it permitted the jury to readily consider as potentially criminal conduct

wolf -- and that describes the conduct -- judge motz: did the trial there give -- site -- explain the statue to the jury or not? mr. francisco: no, but the first decision was whether the alleged was evil and official act. what the court held is that because the instruction could encompass lawful act -- lawful action it didn't. here, if you instruct the jury as your honor was saying, but official action potentially includes everything under the sun, when in fact it does not potentially include everything other the sun. -- judge motz: that is not what i said. mr. francisco: it is a fuzzy area. there is some black and some white and some gray. here, the district court only instructed on the black, did not insert on any of the white or any of the great -- judge king: he gave it a good faith instruction which wrap it all up and said, good faith, there is no criminal intent and

there's no crime. if he does it in good faith, there is no crime. and you proved and you brought it all the character witnesses to testify to his good character that he was honest, that he could be believed. we give you a lot of leeway on that. character evidence alone is enough to prove that he acted in good faith. mr. francisco: if good faith is what saves is, it opens up virtually every -- judge king: i agree with you -- mr. francisco: because we had nothing left. if good faith is what saves it you have given that official acts also applies to gratuities given prosecutors brought license -- judge motz: you said the defense came during the jury charge conference, though. right? mr. francisco: that is what i would like to turn to next. the instructions that we proposed were plainly correct. both the jury conference and in the proposed structures, i would like to address at the governor's claim that they were wrong. first, the government says in the category exclude meetings,

that is on them to you with the false particularly pages 753 of the appendix, this is our proposed instruction, not the jury conference, the written. nearly arranging a a government official's decision on who to invite, whether to attend, is not an official act. it is not corruption. we are not saying anything about the meeting being excluded. if you turn to the instructions we imposed on pages 73-40 and-41 that is word for word out of the court's opinion in jennings. they claim that it is misleading because it does not refer to a specific course of action. what they fail to tell you is they expressed specific instruction and judge spencer said no.

as jennings made clear, there is no difference between course of official action. jennings uses the term interchangeably. the instruction we requested is word for word out of jennings. the one from page 73-40 to 73-41. likewise the mexican construction -- next instruction on 73-41, benefit to another is not an official act. the questions you must decide is whether the charge constitutes a settled practice or whether the conduct influenced an official decision the government makes. judge thacker: but the government does not have to give you anything. noel francisco: but it was a decision within the government's power.

judge motz: the paragraph is out of jennings, but the second is something else altogether. noel francisco: there were two limitations that we proposed. going to pretrial publicity it is crystal clear we set we want to be able to question any juror that was exposed to publicity. the court said no. that is why, in the portion of the transcript, it went issue by issue. there was a section we were talking about pretrial publicity. that is where it was said we could not question somebody because of exposure. then allowed us to call forward only witnesses who raised issues other than their mere exposure to publicity. we were not allowed to question because they were exposed to publicity. judge thacker you remember the bailey case. in bailey, they asked the jury

if they had formed an opinion based on pretrial publicity. we were denied a basic question. to this day, we have no idea if those 12 jurors stepped into the box having formed an opinion against the governor based on exposure. richard cooke: governor mcdonnell committed no crime. you respectfully ask the decision be reversed. judge motz: we appreciate the arguments of counsel and the papers on case. we will take a short recess. when we take the recess, anyone who does not want to hear our cases can leave. thank you very much. >> on the next "washington journal," we talked to doug hughes, the gyrocopter who landed on the lawn to bring attention to campaign finance reform. we also talked to michelle logan

, who tells the story of american inventors and innovators. washington journal begins at 8:00 a.m. eastern on c-span. >> here are featured programs for the holiday weekend on the c-span networks. on saturday and sunday at noon, commencement speeches by politicians, white house officials, and business leaders as they offer encouragement to the class of 2015. speakers include senator tim scott at south carolina state. u.s. ambassador joseph westphal at oklahoma state. and hulu ceo jason kyler at chapel hill. then the live coverage of memorial day ceremonies from arlington. then, interviews with freshmen members of congress.

on c-span2's book tv, saturday night at 10:00 eastern rosabeth moss kanter on potential improvements for america's transport. sunday at 7:00 cokie roberts recounts the civil war in the eyes of the women who worked there. then at prime time, first ladies. on american history tv on c-span3 saturday night at 8:00 eastern, university of minnesota professor eric lee on immigration to angel island california. and how their arrival compared to that of europeans in ellis island. sunday night at 4:00 on real america, the reproduction of true glory.

monday evening at 6:30 on american artifacts, the re-creation of the grand revue parade of 1865. find our complete schedule at c-span.org. >> the patriot act is set to expire at the end of this month. while the house has voted to extend the law, the senate is working on its own version of the patriot act extension. homeland security chair michael mccaul argued against letting the law expire, saying it would leave the u.s. vulnerable to terrorist attacks. he made those comments as a guest at the christian science monitor's weekly breakfast. this is an hour.

mr. cook: i'm dave cook, our guest today is michael mccaul. chairman of the house homeland security committee. this is his first visit with one of our meetings. we appreciate his coming. our guest is a dallas native who earned his degree from san antonio at trinity university, and his law degree at st. mary's university. he worked as a federal prosecutor from 1980 to 1999 and then moved to austin to become a deputy defense secretary to john cornyn. he later joined the u.s. attorney's office and was chief of the national security division for west texas. in 2004, he was elected to the house and became chairman of the house homeland security committee in 2013. he and his wife are the parents of five children. thus endeth the biographical portion. now on to riveting mechanical

details. thanks to our underwriter, northrop grumman. we are on the record. no live blogging or tweeting, no filming of any kind while the breakfast is underway, to give us time to listen to what our guest says. there is no embargo when the session ends. to help you curb the selfie urge, we will give pictures of the sessions to all the reporters here as soon as it ends. if you would like to ask a question, do the traditional thing and send me a subtle nonthreatening signal. i will call on as many as i can. i will start off by offering our guest the opportunity to make some opening comments before we open to questions. thank you for braving the rain we appreciate it. rep. mccaul: thanks to you and the monitor. i just got back from the middle east, and we all came back with

a mysterious cough. i hope it is not m.e.r.s. i think we will be ok. one thing dave mentioned -- i have five teenagers at home. i met with giuliani, let him know that i was in texas. he asked about my kids. they said, teenagers. we have a couple of those. a teenager and a terrorist? the difference is you can negotiate with a terrorist. [laughter] i come to washington for peace and quiet sometimes. it is a good training experience. i'm not going to talk long. i think the threat environment

has never been more intense since 9/11, both from foreign fighters that we investigate and into europe where these fighters go, and also over the internet, where there is a threat to military installations. much of that is internet driven. by individuals in syria and elsewhere, through twitter accounts, getting followers in the united states. that dual threat along with syrian refugees are a serious concern of ours, protecting the homeland. finally, in the complete disaster in iraq, the prime minister in iraq last week, the idea that we are bringing shia militias in to fight this war

against isis is against everything we have tried to do. it inflames the sunni tribes. it inflames sectarianism. i do not see how you can politically unify the country with that kind of military strategy. i think we are failing there and ramadi is a good example of that. i tell people back home -- why is this so important? because they need a safe haven a failed state is a base of operation from which they can breed terrorism against the united states. that is why it is so important -- not to mention the fact that so many of my constituents have lost their sons and daughters, and the gold star mothers wanted to count for something. the precipitous withdrawal

along with the political malfeasance created isis, leading to the resurgence of aqi, modern-day isis. i will throw that out as an opening salvo for discussion. mr. cook: i will do one or two then we will go to martin, damien, paul, aaron. how consequential do you think it will be to homeland security if the nsa's bulk data collection expires for a brief time during the congressional reset? you said yesterday that it is a dangerous thing to do. why is it dangerous, and aren't there workarounds in the short term? rep. mccaul: that is our hope, that we will have congressional action. if it expires, we go dark, and that creates a danger to the american people.

i'm a little disappointed that leadership couldn't work this out, and i think we passed a bill pretty well that threads the needle between security and privacy. i was a counterterrorism prosecutor with the fbi, going through private phone carriers. it can't be done. i think it can be done the way we used to do it and still be effective, and i think the political reality is that we can't pass bulk collection data. what you are seeing in the senate now is a filibuster which is very predictable, which is going to tie up the legislation. a better approach would have been to have it passed out of the house.

mr. cook: on ramadi, obviously, you talked earlier about the disaster, the complete disaster in iraq. from homeland security purposes, why does it matter if ramadi falls? why does it matter that it fell? rep. mccaul: what we are seeing with isis is the way they communicate is very sophisticated. the more of a stronghold they have, the more power vacuums we have three which is what iraq is becoming. we went to iraq, i think and we won. we left it a secure nation. but the decision to not negotiate, coupled with maliki's

disenfranchisement, that created isis. that was a threat to the homeland because they didn't know bin laden was a threat prior to 9/11. then we got hit at the world trade center. it is not just syria and iraq, it is also northern africa -- it is libya, it is all throughout northern africa, going into asia as well. everywhere, we see power vacuums. this is why most counterterrorism officials will tell you that the threat is the greatest they have seen in quite some time because of the fact that they have more safe havens to operate out of. they have the ability to conduct operations, blow up airplanes over the united states. don't think for a minute they

are not still trying to do that. airstrikes, those are good. i think abu sayed's demise is a positive development. the problem is, the iraqi national army is not the one we had to go. they are a brand-new army and have demonstrated they are completely incapable of defending iraq. they dropped weapons in mosul, drop them in ramadi, and now they have taken over another city with the greatest antiquities in iraq, that they will destroy and sell on the the open market or money. abu sayed is important because he is the cfo of isis. the data we got from him, i

hope, will be helpful to expose networks from a terrorism financing standpoint, inside syria and outside. mr. cook: did you feel better about -- we had adam schiff here earlier in the week, and he was saying kudos to our special forces, but with concerns about whether it was worth the risk. especially if it had failed. that is not a view you share, i take it? rep. mccaul: i have respect for adam, but i think if we can take down an isis leader, critically important. if we can take out their leadership -- they will replace with someone, but you are taking out of -- a lot of expertise. his wife was involved with the enslavement of women, the hostages.

some argue kayla mueller may have been a part of this hostage situation. i argue that we need to take out evil, particularly at the top of the chain. that is a worthwhile endeavor. otherwise, we may as well walk away from the situation and we do so at the peril of the united states. mr. cook: you will go to martin from the hill. >> earlier this year at a hearing, you expressed concern about dhs efforts, saying it was creating a federally funded jihadi pipeline. i wonder if you could give an update -- have your concerns about the effort been satisfied? rep. mccaul: i came back from a

trip -- our european counterparts are absorbing thousands of syrian refugees on a monthly basis, whether it is italy, germany, amsterdam. europe is absorbing these refugees on a daily basis. the assimilation, i don't know how you can assimilate that number. they usually go to the diaspora communities, the muslim communities are very isolated in europe. it is a threat to europe and they know that. they pour into europe, and they don't screen their own citizens passed the watchlist. the istanbul airport does not screen outbound at all. they screen inbound. they didn't screen at all your

ago because they wanted to fight assad going to turkey. i met with them, and after isis took some of their diplomats to -- they change their answer. the question is bringing syrian refugees into the united states -- how safe is that? mothers and children -- i don't know if this counts, but there are a lot of mothers and kids. there are males that could conduct terrorist operations and that concerns me. the problem i have is michael steinbach is the assistant director of the fbi, testifying for my committee, and we don't have data on these individuals so we can't properly vet them to know who they are, where they came from, what threat they pose. we don't have the data to cross-reference them.

the fbi has warned strongly -- as has homeland security -- but what you are seeing in the administration is a split between john kerry on one side and homeland security and the fbi on the other side. saying this is a bad idea from a security standpoint. with all the intelligence we had in iraq, we had two guys that came in that were making bombs, threat to the united states when they came in. in syria, since we don't have any intelligence or capabilities, we have no way to know who these people are. bringing them in is a serious mistake. we brought in 700 already. we are slated to bring in thousands more by the end of the year, and the numbers tick up over the next two years.

i'm not sure many communities would want to welcome this. i'm not trying to be an alarmist about it, but i don't want to bring in potential terrorists under a federal program. mr. cook: a quick follow up? rep. mccaul: when i questioned kerry on foreign affairs, he said there is a super vetting process, but when you ask the fbi, they say there isn't any. we don't have the databases on them. we have the biometrics and databases so we can safely bring them in, and i don't think that's what the american people want. i think europe has a real problem on their hands right now. mr. cook: brian. >> i want to go back to the expiring provisions of the patriot act. two of the provisions are going

to expire on june 1, unlike the bulk data collection provision. but the lone wolf provision -- and the roving wiretaps provision. in addition to the other business records -- the fbi -- those are also set to expire. can you talk about the impact about those expiring? rep. mccaul: those are significant provisions that were passed after 9/11. i think i may be one of the only members who prosecuted and practiced the patriot act. though lone wolf provision gave us great flexibility and it was essential because, as we are seeing with these twitter account, where they close it and open a new 1 -- same thing with the phones. the roving wiretap targets the

individual, not the communication device. can we apply that to the more imminent threat we are seeing out of syria over twitter accounts in terms of if they drop the twitter account, can we still keep coverage on the individual? part of the problem is identifying when they open a new twitter account, identifying the same individual. i would argue the wiretap would apply to that scenario. there is a gap in time where you have to identify the same person. i think one of the greatest concerns is what is called going dark. this is a phenomenon -- what they do is communicate to followers, the people they are in constant communication with trying to radicalize, trying to convert, etc.

they will say, let's go to dm the message box. when they get to the message box, unless we have coverage, we lose that communication. even if we do have coverage, then they can go into other platforms that are very temporary platforms, what we call going dark. once they go outside that box and other platforms, even if they are on our coverage, we cannot get the content of that communication anymore. it is one of the most serious concerns within the ct community. they have the ability to communicate securecom, dark space, without our ability to cover and monitor. that may take legislation to fix. there is some controversy to it all, but a lot would argue -- it

-- i talked to jeh johnson the other day. it is one of the biggest concerns. when we can't track the communication of individuals who are radicalizing. foreign fighters are one thing traveling across the ocean -- but if you have somebody that you can activate in the united states over the internet? that is what we call terrorism gone viral, and it is way hard -- very hard to stop it. >> you mentioned republican leaders in the senate and the house could not come up with a deal before the recess. is there any scenario in which short-term extension could be approved by leadership, and what is the consequence?

rep. mccaul: i can't speak for the senate leadership. we did our business and i thought we did it right. we warned that this could happen and it is happening now. there is a filibuster now on this. but the worst thing congress could do is play politics and let it expire. to go dark on international security is a dangerous thing, and it would be highly irresponsible. what are the alternatives? you have the window between the time we come back and june 1. they may will -- will be there to extend it. but i do not know what impact the filibuster will have. the easiest thing to do is we just pass what we pass.

i don't know if what mcconnell is doing -- the white house could very well veto that. to me, from a government standpoint, the best thing to do is pass in the house and the senate, send it to the white house -- and yes, it is not perfect, but it will continue to protect americans. i hated when we send messages to the terrorists that say we will be vulnerable. mr. cook: todd. dallas morning news. >> pleasure to see you. i have some questions about the attack in garland. the muslim cartoon event attacked. we have had conflicting reports about whether there was a breakdown of communications between fbi and the local authorities. can you clarify whether there was a breakdown, and i am also wondering -- these were isis inspired.

how big a threat do you consider they were? were they trained? were they activated by isis -- lone wolf types? rep. mccaul: we are talking about a network of terrorism over the internet. they were isis inspired. over the internet. the guy had malaki on his facebook page. his twitter account had the hashtag "attacktexas." he was, for a variety of reasons, back on the radar. it was noticed that he had left his residence, and this is how law-enforcement works. they send out an intelligence bulletin about the cartoon contest a week in advance, to all law enforcement, saying stay

on the lookout. because clearly this kind of activity will get a response. when it was noticed that these individuals were missing, that information was sent to the task force in dallas about him specifically. that information -- i have been critical of the fbi in the boston bombing and not sharing that information. the fbi did its job and a properly share that information with the police. i understand what you are referencing, that there was breakdown in further communication beyond the part of the local. >> we were never informed -- rep. mccaul: police officers were advised of mr. simpson. mr. cook: are there any lessons