Jurisprudence

How Close Are We to Criminal Charges for Donald Trump?

Former U.S. Attorney Preet Bharara on accountability, Rudy, and the death of truth.

Donald Trump at a podium.
Former President Donald Trump addresses the Conservative Political Action Conference in Orlando, Florida, in February. Joe Raedle/Getty Images

It’s 2021, but there’s still an awful lot of stuff from 2016 onward yet to be litigated. We know that, absent legal consequences, it could all just happen again—the criming and the pardons, the lying, the self-dealing—maybe in 2022, maybe in 2024. On a recent episode of Amicus, Dahlia Lithwick spoke with Preet Bharara, who served as the U.S. attorney for the Southern District of New York until he was famously fired by Donald Trump in 2017. Bharara now hosts the podcast Stay Tuned With Preet, which became required listening for the Trump legal resistance, and authored the book Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law. We spoke about accountability for the Trump administration, Rudy Giuliani, and the death of truth. Our conversation has been edited and condensed for clarity.

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Dahlia Lithwick: Let’s start at the very beginning of the resistance, which is you getting fired by Donald Trump.

Preet Bharara: If we could pause right there for a moment, because you said resistance.

You hate that word.

Well, I don’t call myself a resister. I don’t consider myself to be part of whatever is called resistance. I don’t mean anyone any disrespect, but what I care about is the rule of law, and the justice system, and equality before the law, which I think people of all shades of ideology have generally cared about, and I call them like I see them. I don’t identify with any particular capital-R “Resistance.”

Before we let it go, can you tell me what capital-R “Resistance” signals to you?

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I think for some people—and I’m not saying this is what it means, and people should call themselves whatever they want to call themselves—it can signify a sort of automatic, knee-jerk, “everything that Trump or anybody associated with Trump, says, does, thinks, feels is automatically wrong.” I think that’s largely the case, but I also like to think of myself as an independent thinker.

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I do think that rule of law, and justice, and what happens at the Justice Department, and what lawyers do happens on a different axis from the axis of right-left, Democrat-Republican. It’s on an axis that, I think you’re saying, is really lashed to truth, law, other values that are separate from purely political values. One of the things I want to get at is this question of what you do when that is completely politicized. In other words, when that truth-seeking, justice-seeking function really just flattens out into a left-right, good-bad. But let’s start with you getting fired, because I’m really curious what you would have done had you stayed on. If you hadn’t been summarily fired right out the chute, what would have been your posture on this question of how long you hang out and try to do your best and when you just bolt?

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Donald Trump gets elected. U.S. attorneys traditionally leave, with some period of transition. I was preparing to leave, but then in my case, Donald Trump asked to meet with me, implored me to stay on for another term. I agreed to do that not because I thought of myself as some mitigator, but I thought of myself as someone who had an independent role where I wasn’t directly reporting to the president of the United States. Barack Obama told all of us, which has been the tradition before Trump and I think since he’s left office, that United States attorneys are appointed by the president, confirmed by the Senate, but they operate, as should most officials in the Justice Department, independently from political pressure.

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When I met with Donald Trump and agreed to stay on, it was under the understanding that we would remain independent—some people call us the “sovereign district of New York”—and I wouldn’t be meddled with by the president. We’re not a policy arm of the government. We’re a legal office that does criminal cases and defends against civil cases. I didn’t see any conflict between doing my job as I had done it for 7½ years before and continuing to do so while Donald Trump was the president. I often say, “You know how many times Barack Obama called me? Zero,” and that’s how it should be between the president and the United States attorney.

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What would it have been like if I had stayed? I don’t think it would have been tenable. Even if I had not been fired, at some point as I think back, Trump would’ve continued to do the thing that he was doing, which was trying to cultivate some side relationship at the same time that my office had jurisdiction over and was being asked to investigate various things, including violations of the emoluments clause.

As we’ve seen, there have been other things that have gone on with respect to the president. At some point, I think not that much after I was fired, I would have probably had to go, either because I was being meddled with or because perhaps the office would have been asked to take some position that we didn’t think was right. I don’t know that it would’ve lasted long anyway.

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To the extent anyone thinks about Trump anymore, it’s gleefully imagining his criminal exposure in the after times, both in New York and elsewhere in the country. I gather he’s facing what, 29 lawsuits, three criminal investigations, like a lot.

A whole bunch.

His tax returns are in the hands of Cyrus Vance Jr., the district attorney of Manhattan. They’re working to flip folks in the Trump organization. I wonder what piece of that you’re watching or are you just watching all of it? What do you expect to see in terms of accountability and having some sense that there is some closure to any of this?

People often, particularly if they’re not lawyers, conflate some of these legal challenges that the former president faces with the civil cases. There’s not that much that we know about by way of criminal investigations. The one that we know about most directly and most prominently is the one you mentioned, the Manhattan district attorney’s investigation into Trump’s finances and business dealings.

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I don’t know because I’ve not been in the grand jury, I’ve not interviewed the witnesses. Cy Vance doesn’t call me up and tell me stuff, but there is some signaling going on. Cy Vance is not running for reelection. Vance is, as they say, a lame duck. As a lame duck, he’s done certain things, including hiring an outside forensic accounting firm, which is not super unusual but it’s not that common. He’s done something else that is less common, which is hire an outside lawyer, Mark Pomerantz, who’s a very distinguished, well-respected lawyer in New York. I’m not going to put too much weight on it, but it seems like the kind of move you make when you believe that there’s going to be a charge or there’s a good likelihood of a charge, because it’s a pretty public thing to do. It also risks alienating people in your own office. It’s just a gut feeling that I have that taking these actions indicates to me that that office believes there’s a decent likelihood of a charge, and so that’s the one I’d be watching.

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It doesn’t sound farfetched to think, “Well, when it suited him, Donald Trump inflated the value of his holdings. Otherwise he understated the value of his holdings.” Both of which can incriminate him criminally and subject him to exposure. That all sounds like it makes sense. There’s also the reporting that Michael Cohen, his former lawyer who was prosecuted by SDNY, has met with prosecutors and investigators with the DA’s office like a gazillion times.

All of those things, again, they’re not dispositive, but they all indicate to me that it’s a very serious undertaking. They’re taking it very seriously. They’re spending a lot of resources on it, and you don’t do that if it’s a long shot, I don’t think.

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Is there anything that you feel is urgent and exigent that should have been looked at and that should be investigated and that slipped through the cracks somehow? Do you feel as though these handful of criminal investigations and the civil suits he’s facing kind of get us there in terms of accountability?

There’s two categories of things that I think about. One is stuff we don’t know. I find it hard to believe we know the full scope and landscape of the things that Donald Trump did behind the scenes that were improper, unethical, and perhaps criminal because there’s not been an excavation. I don’t know if there are people who are thinking about doing that excavation, and I don’t know if there are people who are thinking about coming forward.

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Trump still strikes fear in the hearts of people who would betray him—that’s elected officials and perhaps also people in his Cabinet. He hasn’t lost that power yet. I had assumed at some point that there might be the possibility of people coming forward and saying, “You don’t know the half of it.” You know, what he did with respect to DHS, what he did with respect to this, that, or the other thing, and how many other enforcement actions he tried to interfere with. There’s that category, the stuff we don’t know about, which I’ve just got to believe there is something there.

Then the other stuff that’s big ticket that happened out in the open for which there was an attempt to hold him accountable: the “Big Lie” of the election, his involvement in the incitement of the riot and the insurrection on Jan. 6, the stuff he did with the interference in the election in Georgia. I don’t know if he’ll get any accountability there. I don’t know that the administration has the interest and stomach to do something there, especially when there’s an interest in moving on.

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It’s a little bit hard because on all these issues where people want to hold Trump accountable, there are arguments that he has been careful enough with his language, that it’s not clear, 100 percent galloping over the criminal line, although there’s a good argument to be made that he did. With respect to the secretary of state in Georgia, he did not say directly and openly in recorded fashion, “I want you to make up votes to get me the 11,000 some that I want.” Similarly with the insurrection, he did populate his words with the phrase, “Do it peacefully,” because some staffer must have said, “You got to say that one time, Mr. President.” He didn’t say, “Hit Capitol Police officers over the head with a fire extinguisher, beat them up, break windows, go into Nancy Pelosi’s office. I want you to chant, ‘Hang Mike Pence.’ ” But he did enough that reasonable people like me and you would say he should be held accountable for those things. In everything he does, he figures out a way to signal what he wants without outright saying it.

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I tend to agree with those people who liken him to a mob boss who doesn’t have to say the words. Historically, it’s been very hard to prosecute the mob boss for these precise reasons.

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Let’s get to the great, luminous, searing, scorching crazy of Rudy Giuliani. Before we dig in, can you just remind us what Giuliani is probably on the hook for, this influence campaign to get Ukraine to dig up dirt on Hunter Biden? What’s the backstory?

He was part and parcel of this campaign to do a number of things: try to encourage officials in Ukraine, not necessarily to investigate Hunter Biden and his role in a company, Burisma, with respect to corruption, but just to announce an investigation. Because as I think reasonable people understand, what Donald Trump and Rudy Giuliani, his henchman, were looking for was a political victory. They didn’t really care about corruption.

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Also, what we’re seeing now, sort of a redux of the Ukraine affair, is the involvement of Giuliani trying to get the Ambassador Marie Yovanovitch fired, and the New York Times reporting suggests that that’s one of the central things that the Southern District investigators are looking at and whether he was violating FARA, the Foreign Agents Registration Act, by lobbying or doing things at the behest of a foreign government without registering as an agent. All that stuff is swirling around. The fall of Rudy has been something to watch. It’s been a sight to behold, and it’s been, among other things, sad.

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I think you know better than anyone that Rudy was not a clown show his entire career. He has this long and storied career as a serious attorney. That’s what’s sad is that he’s turned into Sidney Powell and Lin Wood overnight.

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It’s funny, he’s adopted the playbook that every prosecutor is familiar with. That is your targets, your subjects, the people you charge, they never send you flowers or chocolates, but they will attack you. They will say you’re political. They will call you every name in the book. I mean, Rudy has taken to saying that the people of the Southern District are jealous of him because they haven’t made the kinds of groundbreaking cases that he made.

Nobody remembers your cases, Rudy. The people who are in that office today, almost all of them, who are probably working on these matters were not born at the time that Rudy got his two-year sentence against Michael Milken. He’s resorted to this kind of crazy rhetoric because that’s all he has. It is the case that he had a certain kind of mean streak and hyperaggressive approach to crime—broken windows, the squeegee guys—when he was mayor and when he was U.S. attorney and that he has an explosive personality. There’s lots of negative things about him and a lot of people didn’t like him for those reasons. But the straight-out crazy, nonsensical nature of some of the things he says and does now, that is new.

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What is going to get us to the truth part of how we have shared norms and values?

It will not surprise you to know I don’t have an answer to that question.

No, I know. I don’t either.

Look, let’s take Jan. 6. We can’t get agreement because we need political agreement on forming a bipartisan, equally allocated commission to get to the truth of what happened. That’s how little there is agreement on what the truth is and whether people want accountability. This is the saddest thing of everything. It’s not the lack of accountability for people who may have done bad things. That’s not good. I don’t mean to be overly dramatic, but for large segments of the population, the death of truth—I don’t know what you do about that. I mean, people would say that unless you had a videotape of Donald Trump committing a crime, like stabbing a person on Fifth Avenue or shooting a person on Fifth Avenue, famously, it’s not that they would necessarily forgive him. They wouldn’t believe it.

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We are on the cusp of deepfakes becoming a big problem in this country, and I think it’s an underestimated problem. That’s just going to be another way for people to never be confronted with contrary evidence because everything can be manufactured, everything can be made up. We’ve always known there’s a subset of the population who thinks that the moon landing was faked, that 9/11 was faked, that the Earth is flat, etc. It’s not tiny; it’s not 1 percent. There’s some percentage of people who think that, and they have been empowered, and that’s maybe the greatest tragedy of the Trump administration.

Garry Kasparov, who speaks very wisely and sagely about these issues having had the experience of the Soviet Union, says the damage is not done when somebody says, “The truth is X,” and some liar says, “The truth is Y.” The damage is done when somebody says, “The truth is X,” and the other person says, “There’s no such thing as truth.” They don’t even say, “Y is correct.” They just say, “You have no idea, and you can’t believe anything, but follow me,” and people follow that guy.

To hear their entire discussion, listen below, or subscribe to the show on Apple PodcastsOvercastSpotifyStitcherGoogle Play, or wherever you get your podcasts.

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