law enforcement, and our country will be less safe as a result, when president trump has abused the rule of law in this country. host: we will end it there. barbara mcquade is a fetzer at the university of michigan law former senate judiciarys. committee republican counsel, brett tolman. we have been talking about this case for the past half-hour. i wonder after watching it yesterday, do you think michael flynn's attorney did what sheeting to to do to make her case before that panel of judges yesterday? guest: it is a difficult case, if your focus is simply on the politics of the matter, but if you are looking at the law and the facts in the case, i think ms. powell has the stronger side of the facts and the law, given that the executive branch is the one that should be determining whether a case goes forward or not. host: the headline from the washington post this morning, judges skeptical of shutting

down a review of the flynn case. i wonder your reading of the judges' reactions and interactions with the lawyer. guest: anytime you are in front of one judge, it is difficult as an attorney, to be in front of multiple judges at the appellate court level, that is a challenge. i have been there, and you don't know which question is coming, and sometimes i have had judges that i thought were absolutely against my position and gave me the hardest time in the courtroom, and i left very disappointed only to find out later that they actually agreed with me, but we were testing the parameters of the argument -- but they were testing the parameters of the argument. i would think any lawyer in front of the court certainly have to take a step back and watch and see what happens. there are some incredible he thoughtful judges on this panel. you look at merrick garland, and

i expect he is one that does not put politics in front of his role to assess the facts and the law. i am interested to see what will happen. host: we are trying to give our viewers a flavor of that hearing yesterday. we streamed it live and aired it on c-span. you mentioned judge merrick garland. this is the judge with acting solicitor general jeffrey wall, talking about the government's argument in that hearing. [video clip] >> the government has already given its reasons for dismissing this case, correct? that is, as the panel says, the motion explained -- the government explains that a new -- in newly discovered evidence, the prosecution can no longer put behind a reasonable doubt -- beyond a reasonable doubt. >> that was one of the reasons. >> i will take all three. you stated three reasons, and i assume you believe those are true, correct? >> yes. >> what more is there for you to say.

let me put it another way. that optional? did you not have to say that much in your motion to dismiss? >> i don't think we did, and we often don't, but under the circumstances here, we went further than we thought we were obligated to. just to drive that point home, the attorney general sees this in a context of nonpublic information. >> i am not in any way questioning anything underlying. i am asking, this was the reason given, and you gave this reason. >> i just wanted to make clear that it may possible the attorney general had information that he was not able to share with the court. so what we put in front of the court were the reasons that we could, but it may not be the whole picture available. host: brett tolman, one of the headlines coming out from that exchange, secret evidence seen as key for flynn. what do you make of that exchange, and the possibility of

secret evidence or evidence the court hasn't seen? secretall evidence is until it is brought out in public view. you do not know what the government has, and all the information it has. you just take the evidence it did have. the key witness is peter strzok in this case. yorty have very damaging issues with your key witness in the case, not to mention the documents that were uncovered. everything you have that is in justified view has the department of justice being very concerned. here we are, in a world that seems tipped upside down. you have a defense attorney and former judge who was concerned about -- and a past life, this judge was concerned about the government abusing its power,

but now you have a defense attorney arguing on behalf of a judge who is no longer concerned about the government abuse of power, who wants to maintain a case that the department of justice says that not only don't feel they can prove beyond a reasonable doubt but feel they are justified because of the issues in the case in the conduct of the fbi investigating the case, and every defense attorney in the country should be standing up and sharing. host: several callers already for you. the phone lines, if you want to join the conversation. (202)-748-8001 republicans, -- republicans, (202)-748-8001. democrats, (202)-748-8000. independents, (202)-748-8002. patty is up first. go ahead, you are on with brett tolman. caller: i am calling, because flynn is being fed up by obama. don't forget he worked for obama. obama fired him because they disagreed about iran.

he warned trump not to pick him, because he was afraid he was going to talk. flynn knows where the bodies are buried. the lastatened flynn, lawyers he had. they threatened to arrest his son. i would give in and lie that i was guilty. people were coming out now is saying that the fbi found nothing wrong with flynn. page whoruck in lisa decided they were going to go after him. lisa page, they are even saying changed a 302 against flynn. there is so much corruption here. the government is going to have egg on their face. i've seen paperwork already. it was a set up. obama is afraid. host: you have seen paperwork already? caller: it is being released.

i've seen the paperwork. he's innocent. host: that is patty, in connecticut. brett tolman. guest: perhaps not all of those facts are out in the public it. i think it gives the flavor of what the country is viewing from this case, in particular, and that is you certainly have misconduct by the fbi in the investigation. you have concerns over key witnesses, you have concerns over what patty referred to as a set up, and let's look at that. you have a director of the fbi that directs the investigation to go forward, despite the fbi finding that there wasn't a basis to really believe there was any concern for the investigation to begin with. it is very much like the attorney general indicated on

multiple occasions. it was in search of something without a predicate to open the investigation or be concerned about the investigation. that doesn't include what then came out as -- we now know that the agents in the interview believed he was telling the truth. people asked a question, why would somebody plead guilty, and there are many reasons. i have been in the criminal justice system for newly 20 plus years -- for nearly 20 plus years. people plead guilty for a number of reasons. it is the fear of what might happen if they went to trial, and the long sentence that could occur. the fact that they may expand the investigation to include other people that you care about. there are many reasons, and it seems like some of that was in play. host: to kathy out of delaware, republican. caller: good morning to both of you. he is absolutely right.

you cannot take politics out of this situation. for one thing, when the two fbi agent's went to flynn originally -- agents went to flynn originally, i do not understand why when they did not mirandized him, because that was the purpose of them being there, they lied about that from the get-go. from that point on, this whole thing is tainted, it is corrupt, it is collusion, and it is all about comey and his co-conspirators to get donald trump. guilty because he had the entire justice system at the very top working against him, and he lost all of his wealth and had no place to go. what was he going to do but plead guilty. your guest is correct.

of getting out of the mess without further ruining his life. everyone out there should be very concerned that this country was led down a path of total corruption, just to get one president. i am very sorry for this country, that they can't see that. host: brett tolman, anything to add to that? guest: ilya thing i would add is one of the reasons why we want prosecutors to look critically at their cases is because of the enormous power that we give them. they are the only agency that has the ability to take away somebody is liberty and freedom. when i was an assistant u.s. attorney and then a u.s. attorney, i understood that power, but i don't think i really truly felt the impact of the power until i became a defense attorney for about a

decade. then i got to see how that power is wielded, and there are instances in which individuals are targeted, and you reach a conclusion and the investigation is done in a way to justify the conclusion that you have already reached. we need to be better than that. we can be better than that. this particular case, general flynn, there was not a basis to investigate him. deception when they interacted with him. there is a conclusion by the fbi, but there was not a case to be brought, and that was overruled by those higher up, and those higher up are now seen as perhaps having more of a political agenda than we would like to think occurs at the fbi or department of justice. host: our next caller, james out of massachusetts, democrat.

caller: in reference to the last lady that was on here, i would like to know what tony podesta's role was with all of the stuff and paul manafort, when manafort was arraigned and everything and tony podesta grabbed all of his millions of dollars in took off because he was john podesta's brother. howuld also like to know many violations are there usually in a year or two years in the federal government? my understanding is it is routinely violated and there are several -- was never ever charged and this was the original charge that flynn was brought up on, that they ponied up and i don't understand why this is not a coerced confession or coerced plea deal in the minute they find out, because

they were 80 pages of evidence presented in the appeal to sullivan. hadof 100 pages, 80 of them evidence on them and we better drop this. thank you very much. i think the interesting part of that comment is getting back to judge sullivan. believee appears to that he has a central role in deciding whether or not the case should be dismissed. does require the prosecutor to file and get leave of the court, it is really just a procedural mechanism, because the court has a docket and the cases on the -- and the case is on the court docket and only the court can remove it. i am sad to see that we have lost that and all of a sudden we

have a judicial branch stepping into the shoes of the executive branch, wanting to assess the facts and the law and terms of whether or not to grant a dismissal of a case that the department of justice says they no longer have the ability to pursue or should pursue, based on numerous factors, factors that are known and unknown to us. this is a dangerous precedent to set. every defense attorney, every organization and agency out there that has been fighting for criminal justice reform should be standing up and applauding the fact that the department of justice is making a decision with these facts on the table to dismiss a case. instead, their hatred for this president and their concern over the attorney general making this decision as a political decision is greater than their love or forction for justice, and

the fair administration of justice, and that is concerning to me. host: do you think president trump should step in and issue a pardon for general flynn? guest: it is certainly within his prerogative to do so. i would like to see the judicial branch acknowledge and recognize that we have given all the prosecutorial power to the executive branch, and that a profit of justice, the attorney general of the united states, indicate that it would be wrong to pursue a case any further and it wishes to dismiss it, i would like to see that happen, the judicial branch grant that and they move on. but the president has the prerogative. i'm certain he will look at that decision. judge sullivan appears to be playing political games in this case, whether it is causing delays in order to stretch this out until after the election, or whether it is because he built

up personal animus toward general flynn. either way, it is inappropriate right now, what is happening and i hope there is relief soon. i am more concerned about the integrity of the separation of our branches of government. host: tim out of texas, independent. good morning. caller: first of all, i would like to say that michael flynn pled guilty twice. he pled guilty twice that the government had enough evidence to convict him without reasonable doubt. this is not a conspiracy against trump. he was indicted by a grand jury. he would have been convicted by a jury had he gone to trial. he admitted so, twice. judge sullivan has the authority to file for a brief. it is to force judge sullivan to dismiss the case, which he may or may not do. the panel may not decide they will enforce it. it is filed after the judgment is made by judge sullivan.

ity jumped ahead and filed to force him to do something ultimately he hadn't even ruled on the case. i would also like to say, michael flynn's own surveillance, he and his son, conspiring to kidnap a turkish cleric living in pennsylvania, to have him rendition back to turkey so he could be executed. michael flynn is a criminal. bill barr is a criminal. donald trump is a criminal. he is no patriot. this is not in the administration based on the rule of law. host: brett tolman, can you explain what the writ is? guest: before we talk about it, one of the factors that is often forgotten is the attorney general has the exclusive authority to bring a case and present it to the grand jury. there is no mechanism, there is no grand jury to go back to when

you want to dismiss a case. that authority lies with the attorney general. remember, it is the same attorney general that declined to prosecute andrew mccabe after the ig found he had lied to an investigator. this attorney general is not looking at the politics of this. he is looking at the facts and the law. it is politics that are getting injected into it by a judge who refuses to acknowledge the authority to dismiss a case is within the department of justice. is a difficult decision to be made, when you might request a writ, it is an for lacknary motion, of a better description, that you would file because you have no other avenue for relief. in this case, ms. powell filed that, she did so because she

felt that judge sullivan was refusing to dismiss the case and acknowledge the authority of the executive branch. host: time for a few more calls. less than 10 minutes with brett tolman as we talk about the michael flynn case. this is janice out of york, maine, a democrat. caller: good morning, thank you for taking my call. the only thing that concerns me is when one of the judges rule,d talking about the and said that the rules not only theected the rights of defendant, but it protected the is kind people, so it of like it is bifurcated. generalike the attorney dismissing the case, how can he

do that? how can you represent the --rican people against favoritism because of a political client, and at the same time represent a defendant who is a political client, and team on the same political that the attorney general is on. that. you would speak to guest: when i was making the decisions, and it is a heavy burden to make prosecutorial decisions. i had fbi agent's who brought cases to me and wanted me to authorize prosecution, and i declined and they certainly weren't happy about it. i also had instances when i pursued a case that i later

learned was a case that did not deserve to be prosecuted. whether it was weakness in the evidence or misconduct by the investigators. i have seen both. in this case, let's not forget at the very heart of this is a case that the fbi fabricated. when i say fabricated, they set general flynn up in a manner in which their purpose was to or getcatch him in a lie him fired, and the agents themselves indicated they didn't believe he was lying. interview,a formal but more one in which you let it interact with fbi agent's like colleagues would do. that should concern everybody, that on that sort of weak factual basis, they pursued a case. the politics in this case, while there are some, are not on the

side of the attorney general, looking at it and assessing not just the weaknesses in the evidence, but the misconduct by the investigation and those that made decisions on the investigation. we should be concerned but a case like this does not get dismissed. we should be concerned that a case like this began with politics. hopefully it ends, setting politics aside. host: to the lone star state, this is gina, a republican. caller: glad to talk with you all. i was concerned about our judicial system. notullivan is able to dismiss the case totally, our whole country is in trouble with our judicial system and prosecution system. that means any judge will be able to go in and say i know i don't have the facts, but we

will still keep prosecuting this. and also, i want to say that ahead-- why don't we go and get this case over with, see , that is myto say main point. let's see what flynn has to say to america. host: brett tolman. guest: the judge in this case, i fabricated or produced a basis for the judicial branch to take on a role that it hasn't previously done in this country. you can hear in the arguments in the case, the uncomfortable tension when it comes to describing what the judge is doing and what the judge has to do if they return the case to

him. here iscannot avoid really seeing clearly a judge who has been outspoken about his animosity toward this administration, and against this defendant in particular, who brought on another former judge who is outspoken against this administration, who is now pursuing a course of action that would change the dynamic between the executive and the judicial branch, going forward. that should be something we are concerned about. a political frustration or a political opposition to our administration should not cause us to whittle away the rule of law and the integrity between the branches of this government. host: last call out of new york city, independent. good morning. caller: good morning. c-span is excellent.

i would like to begin by saying i believe mr. tolman is being disingenuous because the justice department spaces that -- justice department's basis to drop the case because there was nothing there, that was before it was revealed he was talking to the russians and lying about it. there, the case only went forward because new information was revealed, and i believe already that barr and trump have damaged the justice department's role with the american people. thanks for c-span, and have a good day. host: brett tolman, you have the last minute and a half. guest: the caller points out that he was already talking to the russians and that he lied about it. let's take those one at a time. there is nothing wrong with him talking to the russians. he was going to be in a

significant position, in an incoming administration. conversations with the russians, that would be understandable. the question about whether he lied is really at the heart of whether or not there was a case to pursue. you have the director of the fbi indicating to the president and others that he did not believe there was anything untoward, in terms of general flynn's discussions with the russians. they then did a follow-up, and you have concerning notes by the fbi, and we should be concerned about the fbi when they target an individual and seem to have an agenda in their investigation, reaching a conclusion for example before they investigate the case. there are notes here that suggest, they don't prove but they suggest, that their purpose in meeting with and talking to general flynn was to either get him fired, or to catch him in a

lie. you have already, and the beginning of this investigation, serious concerns about the authenticity and integrity of the investigation. i was a prosecutor. i wanted to be tough on crime. what i never wanted to see happen was that we pushed an investigation because we had something in mind, other than the facts and the law at stake. here, it appears that politics was what was in the mind of those who were pursuing this case and authorizing it. host: we will lend it there for now. former u.s. attorney, former republican counsel f >> democratic presidential candidate joe biden and his vice presidential pick, kamala harris, will speak soon.

we will have live coverage from wilmington, delaware, this afternoon, starting at 3:50 on c-span. the 2019 iowa state fair while running for the democratic nomination, harris laid out her strategy for beating president trump in 2020. to do that. we have got a rap sheet as long. let's look at the evidence. benefits the top 1% of the biggest corporations in america, to the point that the biggest corporations in the united states paid no taxes last year. who here paid no taxes last year? let's talk about the trade policy that is resulting in

direct harm to working families in america. about a policy of putting babies in cages and separating children from their parents in the name of boardings -- border security when it is a human rights abuse committed by the united states government. let's talk about a failure to recognize and our farmers and everyone here knows that, climate change is real, it is a crisis, it is caused by human behavior, which can be changed without much change to our lifestyle. it represents an existential threat to who we are as human beings. we can do something about it instead of the current occupant of the white house, who is pushing science-fiction instead of science fact, to our collective peril. wind turbines. you guys in iowa are a leader in this. 40% of the electricity comes from renewable energy. we have the guy in the white house saying the wind turbines

cause cancer. i love governor inslee's line. causes, turbines do not cancer. they cause jobs. we have to be able to prosecute the case against him. the pundits will talk about and compare and i think overly to 2020.016 2020 will not be 2016. 2020 will not be 2016. it a rap sheet, there is a lot of evidence that has spoken to the american whole who know that those believed in him were betrayed, who know that we expect that the person who occupies that most precious seat, our government, not his, we are a government for the people, by the people, of the people.

we expect that the president of the united states will always know that when she has this microphone in her hand, it is a very powerful force. it must always be used not to beat people down, but to lift people up. that is who we are. >> we will have live coverage at 3:50 eastern as joe biden and his vice presidential pick, kamala harris, make their first public appearance as a democratic presidential team from delaware this afternoon. you can watch live or listen live with the c-span radio app. >> c-span has covered every minute of every political convention since 1984, and we are not stopping now. this month's political conventions will be like none other in history.

with the coronavirus pandemic still booming, plans for gatherings are being altered. nominate will need to joe biden as their presidential candidate on monday and president trumbull except his party nominations the next week. watch c-span at 9:00 p.m. eastern for live coverage of the democratic convention starting monday. and the republican convention starting next monday, august 1 he four. live streaming and on-demand at c-span.org, or listen with the seifert -- the free c-span radio app. your unfiltered view of politics. >> the contender, about the men who ran for the presidency but lost, and changed political history.