S1: This ad free podcast is part of your Slate Plus membership.
S2: We have one very key witness to presidential attempt to interfere in the 2020 presidential election and that key witness is Donald J Trump who is on the record about what he did deflecting delaying creating a smokescreen but basically undermining the adversary accusing the adversary of partisanship.
S3: Hi and welcome to Amicus. This is Slate’s podcast about the Supreme Court and the law and the rule of law. I’m Dahlia Lithwick and I cover those things for Slate. Well I know I promised to bring you this week the curtain raiser briefing the imminent about to begin unbelievably consequential Supreme Court term.
S4: And guess what. A few other legal things have happened. So here’s what we’re gonna do. We’re going to add an extra show next week and we’re going to talk as promised to Dean Erwin Chemerinsky for a full and deep dive accounting of what to expect in the coming weeks as the U.S. Supreme Court starts to tackle a raft of really big ticket cases some issues that it’s been avoiding for the past few years that show I promise this time we’ll be dropping into your feeds next Saturday morning. But we didn’t feel like we could ignore the constitutional events of this week because guess what it looks like Chief Justice John Roberts may have to actually start mainlining energy drinks because in addition to the term that he’s about to oversee. He may also have an impeachment trial over which he will preside in the Senate this year. Now impeachment we’ve talked about it quite a lot on this show over the past few years back in May 2018 we talked to Professor Larry Tribe about the power of impeachment. This past summer we checked in with Frank Bowman about the history of impeachment. The definition of high crimes and misdemeanors. So it feels as though this word impeachment. It’s been on the tip of our tongues for so long that we almost had a sense of at last when Speaker Nancy Pelosi stood up this week and spoke the words I’m announcing the House of Representatives moving forward with an official impeachment inquiry. But to be sure starting an inquiry is just that it’s a launch pad. It’s a departure point. It is not a destination. Impeachment remember is a legal process that is carried out in a political form so it becomes a hybrid of which we don’t have that much experience. And so we wanted to turn in a moment to Walter Dellinger who is as a former acting solicitor general under Bill Clinton. Truly one of the best people to help us understand where we are now and where we may be going in the coming months. Now later on in the show we’re going to be talking to a former assistant U.S. attorney from the Southern District of New York Jim Zirin. He’s got a new book out called plaintiff in chief a portrait of Donald Trump in 35 hundred lawsuits. The conversation with Jim Zeiger is going to help us understand how we got here on this impeachment question and how Donald Trump’s long history of weapon izing the law has made him both vulnerable to and weirdly immune from any legal accountability. So yeah it’s a really long show and I’m going to suggest that you just make yourself a grilled cheese sandwich and sit down and listen to all of it. And so first to the release of the whistleblower complaint to testimony before the House Intelligence Committee two impeachment inquiries and what the heck is going on. We have our first guest Walter Dellinger. Walter is head of the appellate practice at Malvern IAN MEYERS. He’s an emeritus professor of law at Duke University. He served as assistant attorney general in the Office of Legal Counsel under President Bill Clinton and he served as acting solicitor general of the United States from 1996 to 97. And here’s where I tell you parents medically he was one of my first two guests on this podcast and also the coconspirator who helped invent Slate’s Supreme Court Breakfast Table with me 20 years ago. So Walter as a member of the family welcome back to Atticus. Thank you. Dalia and I think maybe the very first thing we can do Walter in this conversation is just put some meat on the bones for it for listeners who’ve just been hearing a lot of noise this week as I understand it takes 218 yes votes in the House to vote on articles of impeachment. We have as of this recording Friday morning 221 members who say they support impeachment regardless of what we’re calling it today Walter whether it originated in the judiciary committee or in Nancy Pelosi’s statement last Monday. Is it fair to assert that the impeachment process has begun the impeachment process has begun. Be careful though a slight majority.
S5: Of the House membership has said they support beginning the impeachment proceedings. They have not yet committed to how they would vote on any article of impeachment.
S4: Good clarification. This is why we pay you the big bucks Walter now. Now my second just clarifying question Can Mitch McConnell just decide that he refuses to hold a trial in the Senate.
S5: Yeah that is a good question.
S6: And because we’ve only had two Senate trials of presidents that is Andrew Johnson who was undercutting the Civil War victory and and Bill Clinton who lied in a deposition about his sexual relationship with an intern. We’ve only had those two so we have very little in the way of precedent.
S7: There’s there’s virtually no case law except case law that says too that the court is going to stay out of the substance of these issues and leave it all to two Congress. The big question is Is it true that that McCollum can I think that current term is Garland. The impeachment process that is to say ignore the house is articles of impeachment the way he had a majority of the Senate simply ignore the fact that the press the United States had made a nomination to the Supreme Court. I tend to think the answer is that it would be very hard for him to avoid a roll call vote because what few people realize is that in the case of an impeachment of the president and not all the other civil officers are subject to impeachment. In the case of the impeachment of the president the presiding officer is the chief justice of the Supreme Court. Now that’s actually quite important. There are 53 Republicans but is normally thought that you needed more than three Republicans to come over on any vote in the Senate because Vice President Pence would break the tie. Now Vice President Pence is not going to be there to break the tie. So while it takes two thirds of the Senate to convict on articles of impeachment it only takes a majority to pass on rulings of the chair. And if you think about the number of senators who are from states where they’re just not solidly committed to the protection of Donald Trump at any cost you know you’ve got Senator Romney who has already been critical of what President Trump has done. You’ve got Susan Collins who is up for election in a moderate state. You’ve got the senator from Colorado Cory Gardner. You’ve got a pretty moderate senator from North Carolina to in fact Tillis and Senator Burr who’s been a fair co-chair of the Intelligence Committee the only three of those to have a 50/50 tie on a procedural question to be ruled on by the vote of the chief justice in the chair. And that’s important because if a well thought out well crafted Article of Impeachment supported by nearly incontrovertible evidence. Including in the most recent case the actual assertions by the president himself. And that comes over it’s unclear to me who decides when to convene the Senate since the chief justice is the presiding officer but the house when an article of impeachment is voted the House appoints House managers who present the articles of impeachment to the Senate and who would notify the chief justice.
S5: The House managers would propose a briefing schedule and debating schedule of the president’s attorneys would have their own counter briefing schedule and the Chief Justice I think would confer with certainly the majority and minority leaders in the Senate about when it would be convenient but it’s not clear to me that it’s Mitch McConnell rather than John Roberts chief justice who decides to commence the proceedings. Now political friends tell me that Majority Leader McConnell would wish to avoid a roll call vote. He’s got too many members who might be exposed that time either to say what is clearly established to have happened didn’t happen or to acknowledge that it happened but say it’s okay for a president to do things like are detailed in articles of impeachment. I don’t think the majority leader can make motions.
S7: It has to be the process lawyers could move to dismiss without any further proceedings and avoid the Senate trial. So on that motion to just simply dismiss all the charges which I believe they could make.
S8: And if it carried by a majority vote I believe that’s the end of the matter in the Senate as a matter of sheer the Senate share power to trial impeachment. But I think that the chief justice would call the question and listen to the ayes and nays and almost certainly they would be close enough. He’s in days that the chief justice would say the voice vote being inconclusive the clerks will call the roll and senators would have to vote without hearing any evidence or testimony or briefing or presentation. And I think there would be a tough vote particularly since the chief justice would have the deciding vote to decide whether to proceed or not. The framers didn’t contemplate that there would be a political party that had one member that could control how every member of that party voted. That is the present system where McConnell controls his caucus but the chief justice in the chair. I am not at all confident that the majority leader of the Senate can successfully make this go away without having at least an initial vote because the chief justice presides over this.
S4: Folks sometimes have the notion that he has immense power. Now you’ve just flagged the fact that he has the power to break a tie. But for instance you know we have Donald Trump tweeting last April quote If the partisan Dems ever tried to impeach I would first head to the U.S. Supreme Court. In a statement to reporters even this week. What are these guys doing. There should be a way of stopping this impeachment maybe through the courts. We have to be totally clear there is no recourse to the courts if the Democrats initiate and vote on articles of impeachment. The courts have no role in this other than the chief justice who presides. Correct.
S9: That is correct. I mean the chief justice is in a different role. He is there as the presiding officer of the Senate not in his judicial capacity. And the court has made it very clear that they want to stay out of impeachment processes. That is the House of Representatives is the body that determines whether to bring charges called articles of impeachment and the Senate has the sole power to try all articles of impeachment and the Supreme Court has made it clear even in the case of a federal judge who happen to be named Nixon Judge Nixon. That they are not going to decide what constitutes a high crime and misdemeanor. And I think they may stay out of procedural issues as well.
S10: There’s is a bit of a double edged sword for those that are seeking to press ahead with impeachment. I think the Supreme Court is not going to intervene and stop the process. But it could be that they’re not going to help it out either. I think that if the House or Senate has subpoenaed witnesses or information and there is stonewalling and a refusal to comply. I’m not sure they can go to court to enforce that.
S11: They certainly have a completely legitimate right to seek the evidence as part of an impeachment proceeding and theoretically that makes their position seeking witnesses testimony and documents stronger. But I think the Supreme Court’s going to say we’re not going to get into the business of enforcing subpoenas either. You can do what the House did at the time of the Nixon impeachment which is they made Nixon’s refusal to comply with evidentiary demands itself a separate article of impeachment. For the caucus. So you got your own enforcement mechanism. You don’t need an order from the court. Now there is a criminal defense trial.
S10: Trial a criminal trial of us versus Haldeman and Erlichman two of President Nixon’s leading staff members and alleged henchmen. The court did order the president to turn over incriminating tape recordings and they did that by a unanimous court in U.S. forces Richard Nixon. But that’s because it arose in a federal criminal trial where the criminal defendants correctly said they needed the information and the tapes in their defense.
S11: It was just a matter of impeachment. The court might even say on the enforcement of subpoenas you’ve got your own power to make it an article of impeachment and remove a president who refuses to cooperate with the impeachment process.
S4: There’s a little bit of a race against time now because Democrats want to do a thorough job but they also don’t want to be having an impeachment trial in the Senate in October before the 2020 election. And so I think that has sparked some real internal debate within the members of the House about whether it makes sense to look at all of the impeachable offenses including obstruction of justice episodes that were flagged in the Mueller Report. The emoluments violations or does it just make sense to narrow narrow narrow the scope of this inquiry into these recent this week developments where we have a whistleblower in the intelligence community divulging details about a July phone call between President Trump and the president of Ukraine in which it seems as though Trump conditioned the delivery of a reported 400 million dollars in military aid on getting a quote favor back which would be Ukraine reopening investigation into the Bidens. So does it make sense to go big or go small. Do you have some sense in terms of process which is the way to go.
S9: I think going small is the way to go. I don’t have any particular expertise on this but I think a single article of impeachment focused on the president’s call and interaction with the chief official of Ukraine as a single article of impeachment is the way to go for the following reasons. First let’s look at the broader scheme and then come back to what we know about the phone call to Ukraine’s leader on the larger issue. I think what happened is that the Democrats simply totally blew it.
S11: In the 36 hours after the release of the Mueller Report. I was thinking sadly that when the history is is written of this that Trump would have escaped to being called to account because of how badly the reaction to the Butler Report was handled. It was it is remains a mystery to me. I wrote a piece about it called the redaction distraction in the Washington Post that went like this that the country obviously people being too busy to read 500 pages of dense Mueller reportage look to the political leadership.
S9: And the responses were mendacious from one party timid from the other and both were wrong. The Republicans said no collusion no obstruction. Case closed. Which was a completely false narrative.
S11: And the Democrats responded by saying we need to see the redactions. We need to hear for some witnesses. We need to see the grand jury testimony. You didn’t need any of that.
S12: The statement should have been that even on quote collusion where Trump was most reported to have been vindicated. That alone the president clearly welcomed foreign interference in the 2016 presidential election and the Muller report stopped short of asserting that his conduct with or that of others in the campaign was criminal by saying they could not find an express agreement between Russian military operatives and campaign officials to believe that they could prove beyond a reasonable doubt. The element of a conspiracy. But the president’s own welcoming actions were no. And then obstruction of justice. Every prosecutor you know is going to tell you that they’re somewhere between five and nine dead bang obstructions of justice felonies by the president. But what the Democrats said was We don’t know enough and that I think allowed the voices chanting no collusion no obstruction to to carry the day and it was hard to go back and say I said no wait a minute. Actually it turns out if you read the report everything there was massive criminality on the part of the president of the most profound kind an attempt to subvert democratic governance.
S13: But the moment passed so now I thought you know we’ll never call him to account.
S14: Well here we have a whistleblower come up with a single instance of his continuing to do as president of the United States with all of that power to be completely complicit conspiratorial and collusive in an effort to interfere with the presidential election. So I think they have to reluctantly give up because the public erroneously thinks the Muller report was largely a vindication which is exactly backwards. But now we have a fresh thing and what is most useful about it is we have one very key witness to presidential attempt to interfere in the 2020 presidential election and that key witness is Donald J Trump who is on the record about what he did and is defending it and defending what what he did. It maps on exactly to what was so profoundly wrong about what Nixon did in Watergate.
S15: Both Watergate and the Ukrainian situation are attempts by a sitting president to distort and control the outcome of a presidential election which is a crime against democracy. And Nixon’s case he was running two years out even behind Ed Muskie of Maine a moderate and Watergate was an attempt to use burglars and every other method of disruption to make sure that the Democrats nominated a far left just like George McGovern instead of a moderate centrist like Ed Muskie and they basically succeeded in doing that. It wasn’t just a third rate burglary. It was an attempt to subvert the Constitution and to use corrupt means to influence a presidential election. That is exactly what is happening I think. Why was sent such shockwaves through political Washington when the whistle blower complained about the intervention with the Ukrainians. Is it it demonstrated that Donald Trump is going to use whatever foreign interference he can then he gets away with. Yes he wouldn’t have stopped there. He can call upon. The North Koreans who inexplicably has made love to a gruesome brutal dictator with hundreds of thousands of people in concentration camps in his country. He’s he’s made up nicely to the butcher of Saudi Arabia. And so that he was going to go all out to use corrupt means to influence the 2020 presidential election in a way that is going to be much more serious than than what Nixon did to try to influence the nineteen seventy two presidential election.
S4: That has to be the answer to people who are saying oh can’t we just not do the impeachment can’t we just wallop Trump by 10 million votes in 2020. Why do we have to do this in an impeachment process can’t we just do it at the ballot box and what you’re saying is no because he’s broken the ballot box that doesn’t work anymore.
S15: The idea that we would count on winning while we stood back and Congress and the Democratic leadership in the House took no action. It’s no accident that it was the day after Robert Mueller’s public congressional testimony that Donald Trump was on the phone saying to Ukraine it’s a shame if you didn’t get this defense money to protect you from the Russians and by the way there you have it been reciprocal. And here’s the favor I need the need to open an investigation where there was nothing to investigate. Look I mean it means that they were going to expose the Democratic nominee if he keeps this up using foreign sources of highly sophisticated the North Koreans but all of their money into their cyber capacity. They were going to make sure that the Trump people they’re running against a felon of some kind by making it up with foreign help. That’s what everybody realized they had no choice but to proceed.
S4: I want you to respond to what seemed to be the two principal efforts at dismissing the whistleblower complaint from this week and the first one was the whistleblower can’t be trusted because he wasn’t to quote Hamilton the musical in the room where it happened.
S16: You know he he got reports from several very very high level officials but he wasn’t there. There was a lot of testimony from the Intelligence Committee hearing suggesting that oh well that therefore it’s just hearsay. It’s just a bunch of bunk and it can’t be trusted. Can you respond to that one first. If you actually read the report that the whistleblowers submitted it has such a feel of professional credibility to it it’s full of verifiable.
S17: Or facts it could be just proven and none have been he’ll be ironic if the defense was we don’t have firsthand testimony from the people in the room and the White House would say and you cannot question the people who were in the room. That’s a real catch 22. But but more importantly his essential bottom line is not being contested by the president or by his quote lawyer unquote Rudy Giuliani. They’re saying that the conversation essentially occurred. So I think there is all they need to work with the House and the Senate are entitled to make a judgment. They will definitely hear from the whistleblower and they also will hear from the surrounding circumstances this is this call really about corruption in general is this corruption fighter Donald Trump at work when the only places in the entire world where he appears to care about corruption are in Kiev and in Baltimore City. Never he’s never shown any interest in corruption and it turns out we have the transcript of the phone call. We don’t need the whistleblower. They haven’t challenged the summary of the call. So why are they talking about how he wasn’t in the room when they’ve got the exact readout of what was in the room.
S16: OK. So then let’s do their second and this is the one that I think they’ve settled on in the last two three days and that is Walter there’s no quid pro quo. Like even if we stipulate that the readout is true there’s no quid pro quo being offered. It doesn’t sound as though Donald Trump is conditioning this military aid on the investigation being re opened he’s just no good talker is going to talk.
S18: What’s the answer to that.
S6: Two answers. I don’t know which one comes first one there is a clear suggestion of a quid pro quo and to it does it matter whether there is a quid pro quo or not. I don’t know which one comes first. The whole idea of was there a quid pro quo comes from the completely erroneous notion that we’re about to bring some kind of criminal charge and I’ll come back to that in a moment of why that’s exactly the wrong way to decide what is an impeachable offense to look at what would be the elements of a federal crime. But first I mean anybody who reads this knows that there is no other explanation.
S15: He talks about the military aid and he immediately says we need a favor from you.
S14: And here’s the favorite we need.
S19: I think like what else would you would you want this is this would be enough to convict any put Tony Soprano in jail and any other mafia member you know for the rest of their rest of their lives. But even without a quid pro quo his suggestion that that a foreign government interfere in the American election process by opening an investigation when he knows there is no basis for it is itself a profound offense against the political order and that’s what you need. It is neither.
S15: Not all crimes by any means should be impeachable offenses that would lead to the potential removal of a president but neither is it necessary that there be a crime. For heaven’s sakes there wasn’t much of a federal criminal code for the first 50 years of the American republic. So of course they didn’t think it had to be a crime it has to be quite serious. It has to be more than maladministration which was rejected as a standard. And it has to be something like treason and bribery. That is very very serious and an offense against the public order. The idea that you look at the technicalities of criminal law is demonstrably erroneous. So I think that there is no need to show a quid pro quo and laughable to think that there isn’t one. The both the House and the Senate get to be tried as a fact and to draw their conclusions and the fact that Trump was making this call because he was deeply concerned about the fact that there was corruption in the Ukraine leadership when he is embracing a Kim Jong un who has imprisoned hundreds of thousands of people just to just to siphon money off his buddies with Vladimir Putin which something to be the richest man in the world because of the endemic corruption he’s never raised a word about it so everybody who knows this. And that’s why it’s put in the hands of people who are elected political leaders. They all know that he doesn’t care about corruption and the idea that is one case. Of course he was attempting to interfere in the election. You can draw that conclusion. I think that the erroneous search for some legalism like whether there was a quid pro quo and the fact that even if he even if you thought erroneously you needed to show that that you also needed to have an explicit they do we have this right Mr. Ukraine do we have a contract. Is it true that if I release the money that Congress has appropriated and stop holding it that you will in turn do whatever you can to smear Hunter Biden and my political opponent. Do we have a handshake on that. You’re never going to find that.
S6: And there’s plenty of basis in what was said to find a quid pro quo. But more importantly that’s not necessary.
S4: And it is I think for four relevant campaign finance statutes it is fair to say we know that he was seeking something of value and Mueller has already told us they help getting oppo research on your opponents. That is sufficient. So I completely agree with you we don’t have to tag this to anyone statute but it is clear that he was asking for a thing of value and we could be done and done without the quid pro quo. If we go that way. Right.
S5: And and the fact is it’s a it’s a violation of the campaign finance laws to knowingly seek contributions.
S19: That is things of value from foreign governments or foreigners of any kind. Governmental or not. So seeking campaign assistance from Ukrainians is clearly itself a violation of the campaign finance laws. But you know I think. You don’t have to go there. And the reason I would push back though I don’t disagree at all with you is that this is so much more serious than whether you can find this kind of investigative assistance to be called a thing of value or a contribution. This attempt to use foreign interference to turn potentially winning candidacy into a losing candidacy and to distort the outcome of the American people’s democratic vote is so profoundly wrong. Whether or not it was under the construction of of a thing of value under the campaign finance laws becomes I think not the central question and not necessary to resolve it.
S16: I think correctly as you as you suggest well maybe one thing I’ve been trying to keep in top of mind because this week has been so confusing is I just look back at the articles of impeachment against Nixon and you’ve got obstruction of justice here we’ve got literally people moving the evidence of this phone call on to private secret computers that are supposed to be only used for classified information. So OK we’re now hiding stuff we’ve got abuses of presidential power which you’ve just described. He’s using the office of the presidency to try to thwart a political opponent and then three and you said this at the top defiance of subpoenas. Boom boom boom. No.
S6: Right. Correct. That’s plenty of fodder and to shape that into a well crafted article of impeachment I think is so premature to to predict what the Senate will do.
S19: The notion that we know that quote Mitch McConnell will just ignore this and he’ll go nowhere. I think it’s way off base since we don’t know what the chief justice’s rulings will be. And if the chief justice. Ruled that way that they should proceed. I’m not sure that are not three Republicans it would not vote to sustain the ruling of the chief justice of the United States.
S4: Now I have to ask you about Rudy Giuliani please please because of what not I am proud of. Put this in the form of a question Walter. He seems to be serving in some sort of a more office in Kuwait capacity as the president’s like personal attorneys slash fixers slash Roy Cohn and I don’t know he’s may or may not have security clearance. We learned from the DNI and he’s just swanning around the world doing a little backchannel diplomacy and getting dirt on the president’s rivals.
S18: What is what the what did people just get to task a personal attorney with talking to the president of Ukraine about maybe doing him a favor. Is that is that a thing Walter.
S19: Listen the undertakings by Rudy Giuliani raise so many questions of law and ethics that one doesn’t know how to unpack them.
S20: I think anybody who advises lawyers or board members on their own potential liability.
S21: The first thing they would say is you need to be very clear about what your role is. You’re either acting as an attorney for the board or as a board member you really giving legal advice or you’re receiving legal advice Make up your mind what your role is and stick to it in your line and here it is so confusing first of all he says he’s a private citizen outdoing foreign policy and national security matters. Apparently no one would assume without security clearance. But he says no the State Department has authorized what I’m doing. He’s not supposed to be doing work for the State Department unless he is a special governmental employee. And if he is this is something I see nobody mentioned. I don’t understand how he could have any lawyer client privilege with respect to these matters with Donald J Trump if he is a government employee. His only client is the United States of America and all of us that have been in this role when I had conversations with President Clinton while a case out argued Clinton against Jones argued on behalf of the United States. I have to say that read. Remember I’m not your attorney whatever you say your attorney as you know is you know Robert Robert Bennett is arguing for you personally and there is advocacies acting solicitor general for the United States. Let’s keep that clear. You know and and is totally modeled. I’m not even sure that Giuliani could assert attorney client privilege. You might say well I was actually his personal attorney. They said well what are you. You can’t be a state department asset and a personal attorney at the same time.
S15: So it’s just such a muddled sense that it’s almost as if Giuliani has to have liability one way or the other. But you wouldn’t want to be the company carrying his malpractice insurance.
S4: I very glibly asked you about Giuliani but I’m now very somberly going to ask you about Bill Barr because he is similarly mentioned by name several times in the July phone call. He is noted time and time again by name as one of Trump’s lawyers who President Zelinsky of Ukraine really needs to work with to reopen investigations. And so at minimum I feel that we could at least agree that Barr should have recused himself from making any kind of determination about the whistleblower report.
S16: Right now he’s named in it and yet he’s still somehow overseeing just fundamental decisions about whether that is privileged.
S22: One of the questions that people ask each other who have served in the Department of Justice and I’ve been around the federal government and in both Republican and Democratic administrations. They asked each other what’s going on with Bill Barr. How do you explain Bill Barr How do you explain the. I can almost say mendacity with which he characterized the Muller report for example. What is he doing. Bill Barr had an excellent reputation in Washington conservative to be sure but someone who when I took over Oh well see he was one of the most helpful people and giving me advice on how to do the job. And I don’t understand what’s what’s happening when the department should have announced already that he recused himself from reviewing the well see opinions on this on releasing something where he has mentioned multiple times and there has been a deadly silence about his recusal why haven’t we heard about his recusal from these matters. It’s a mystery to me at this point. He has no business being involved in any way even if he was wrongly named by President Trump and communications with. The Ukrainians as someone who would be playing a role and working on the investigation and one hundred but even if that somebody that Trump made up it’s still a matter that he’s named in there and he has to step aside while people are making those determinations. So I honestly don’t understand what’s going on. Did who knew for example about putting the information about the whistleblower report on a special server or the readout of the conversation between Trump and the president of Ukraine. There’s nothing in there that requires that that be put on a special server where they put code name. That is the most highly secretive think there’s nothing in there. The reveal sources and methods nothing that would require that level. So it’s really an attempt to keep that information from Congress that led them to put it on a special server to make sure it couldn’t be read. I just don’t know what’s going on with the lawyers in this administration.
S16: I would be frightened as I could be to be one of the lawyers serving Donald Trump and that leads me to just ask briefly Walter you served in the office of legal counsel. We all know that the legitimacy of the wealthy really turns on the kind of appearance of being above Pollard. I mean it doesn’t work if you are fully in the tank for the president I know you know that better than anyone. And so I don’t even understand you know Joseph Maguire testified on on Thursday. He’s the acting director of national intelligence that he just even though he had this whistleblower statute that said I shall pass the ages report on I shall pass the whistleblowers complaint on that he ran to. Oh well see as its own question and I know that was litigated ad nauseum on Thursday but can we at least agree that Y is O L C putting a thumb on the scale to block this and claiming some kind of crazy expansive privileged flash. This doesn’t cover the president. So what. It’s dead in the water. I mean that just seems so outside the bounds of what a wealthy ought to be doing.
S20: You know first of all there really is a tradition of legitimacy on the part of LLC. I know that often it’s a tie goes to the president. But in the administrations of both parties. Oh well she has stood up to presidents and far more often than people realize because when they’ve said no. The program doesn’t go forward when LLC is vetoed it. So you’d never see the light of day. But I can tell you from Republican administrations across the aisle from me I know instances where they stood up and said No against fierce political pressure that the president needed something politically. So it’s played a very important role in being a check on the executive branch often with regard to matters that will never be litigated.
S23: So they’re the only check and the bottom line of the memorandum might actually not be erroneous that the matter wasn’t a matter within the intelligence community. But what’s distressing is that the memo reads like an advocacy document like they’re finding every way to avoid presenting this information. And even at one point saying that they weren’t ask a particular question about a different statute. It’s almost like there was a boy is waived a certain argument which would be kind of partial you were taken hostile litigation. And what’s missing is that 12 people said to be in the room during the conversation between the presidents of the U.S. and Ukraine and all the lawyers involved.
S21: Why isn’t there an army of whistle blowers who hear that the president is attempting to have a foreign interference distorting the outcome of the election.
S23: Why are you limiting yourself to writing a highly technical memo saying in the particular subsection they cited there’s not necessarily a mandatory reporting requirement. Why not saying this needs to go to the congressional leadership immediately to day to day whether or not it is under that statute or not because it’s an attempt to subvert a presidential election. And that’s what’s distressing about the lawyers to finding their role in such a narrow and technical way that there have not been a cacophony of whistles being blown that you can hear on the streets outside the Department of Justice and the White House.
S16: Donald Trump in response to all of this on Thursday starts to make claims in front of people that the whistleblower is not legitimate. He’s called the whistleblower a hack but then he’s really made I think very deadly serious claims that the folks who spoke to the whistleblower that the many people that were in the room as you say who came forward they maybe weren’t brave enough to blow a whistle but they certainly came forward to this individual and said this happened over and over multiple accounts of the same truthful thing which as you say also is in the readout of the phone call. And Donald Trump starts saying that they’re behaving like spies and that the you know remedy for treason we should go back to the old fashioned way the implication being execution that in and of itself is so profoundly serious and the fact that we treat it as one of 100 threats that Donald Trump makes against the press or against judges or against journalists every day. What he has done is chilled every single person who ever thought to do the thing you just said to blow a whistle and to report bad conduct. He’s quite literally saying those people are spies and I just wonder if part of what is just so difficult in this tsunami of teasing out what are the concrete articles of impeachment we could settle on you and I in this conversation. My God doesn’t threatening CIA agents and government officials who are trying to do the right thing threatening them that they should be treated as spies and summarily punished as spies. Doesn’t that rank way up at the top of the things that we should be looking at very seriously today. What Donald Trump said.
S24: On Thursday about the whistleblower should be subject to a unanimous bipartisan condemnation a vote of censure from both houses of Congress. Without further ado because he has really put in danger the life of an American who did everything he could to do it exactly by the book. And now Donald Trump has said we knew how to take care of this in the olden days we knew how to take care of spies and traitors which everybody know is that they were hanged by the neck until they were dead. When you were found to be a spy or a traitor in time of war and what enrages me is the predictable response of his defenders that he was joking. When it’s a move that is made currently but then this time it’s not a defense because the people who would act upon his suggestion that we know what to do with spies and traders are not people who have the subtlety to think that oh he was just joking. The kind of people that have a basement full of weaponry. And assault rifles are not the kind of people that would make a distinction between something made in quote just unquote and something not it’s simply inexcusable that he has put this person’s life in danger and that he is deeply chilled This is witness tampering and it should be universally and easily condemned by every member of both parties in the House and Senate. And I haven’t seen that forthcoming yet.
S16: Where are the members of the president’s party on this one Walter Dellinger is head of the appellate practice at a Melbourne Ian Myers. He’s an emeritus professor of law at Duke served as acting and served as assistant attorney general in the Office of Legal Counsel under Bill Clinton. And as acting solicitor general of the United States. Walter this was unbelievably sobering and also unbelievably helpful. Thank you very very much for joining us.
S19: I enjoyed it greatly as always you asked the most incisive questions and let’s see what happens.
S25: And Slate Plus members will be getting an extended version of this next interview with former federal prosecutor Jim Zion about all the ways Trump’s previous thousands of lawsuits inform how he governs and how he might fight impeachment so often on this show over the last couple of years we have talked about the law and Trump and then occasionally we’ve had this sub stratum of Trump in the law how he thinks about the law how he thinks about the rule of law how he thinks of lawyers and this is a subject I have to confess that has always fascinated me how he treats the law and the rule of law and in a terrific terrific new book called plaintiff in chief a portrait of Donald Trump in thirty five hundred lawsuits. James Zion takes a deep deep dive into this question of what does the law mean to Donald Trump himself. The book is published by all points books and essentially it is a probe into Trump’s lifelong weaponization and use of the law itself as a tool to get power and is a tool to promote himself. Jim Zirin is a former assistant U.S. attorney for the Southern District of New York. He’s the author of two previous books and his writing has appeared all over. His basic thesis is that Trump has actually never seen the law as an adversarial quest for the truth. He has always used it as a cudgel to bully and to silence and to over master his opponents. And I have to say this explains so much about the contempt he has shown for the legal system throughout his presidency. And it also explains how we got here this week to an impeachment inquiry. And so as impeachment is in the news in a meaningful way it seems like a really good time to reflect on the limits of the law and the rule of law as an organizing force on somebody who doesn’t believe in the law or the rule of law as anything other than a weapon. So with that huge windup Jim siren welcome to elegance.
S26: I’m delighted to be here. Dahlia and thank you for having me.
S25: Let’s start with that overarching theory. Did I essentially get it right that that you’re saying this is a person who does not have lofty ideas about the law is a quest for truth seeking or justice. He just thinks law is something it’s almost a commodity in and of itself. You can by law and you can spell law and you can use it for power.
S27: I think that’s a fair statement. Trump weaponized the law part of it was something he inherited from his father Fred Trump who was actually censured by the United States Senate for his machinations with FHA loans when he was a developer in Queens and Brooklyn. Fred Trump who was a member of the Ku Klux Klan and was arrested at a Klan rally where people were robes even though Trump denied that he was ever charged with anything. It’s hard to be arrested without being charged with something. And Fred Trump was totally unscrupulous. He was a tax evader. He managed to get a billion dollars in wealth down to his children without paying taxes. So that was the first inspiration for Trump that the law was something which you could circumvent and ignore and the charges against you might not necessarily stick. Second great mentor for Trump was Roy Cohn of course whom Trump met in a bar in 1973. It was quite a inauspicious attraction to had for each other. Cohn of course had been one of the prosecutors of the Rosenbergs on the backs of the Rosenbergs. He became chief counsel to Senator McCarthy. He was totally unscrupulous in smearing people he was a hypocrite. He was a closeted gay and when he was with Senator McCarthy instituted investigations designed to root gays out of the State Department. He’d been indicted three times by Robert M. Morgenthau he’d been acquitted three times the attraction. Cohn had for Trump was here was a guy who had beaten the system. Now this coincided with a race discrimination case that’s been brought by Nixon’s Justice Department against Trump and his father which alleged they had discriminated in housing.
S28: Before we get to that before we get to the lawsuit I just want to ask you if I think what you do in this book is essentially solve a mystery that has really plagued me since the advent of the Trump era I believe it or not worked at a family law firm before I started doing journalism and I remember very wealthy powerful men treating their divorce attorneys the way you describe Trump treating his attorneys which is this is not a person who’s helping me through trials. This is somebody who’s helping I pay money. They’re a plumber. They make problems go away. They’re fixers and plumbers and they just do what I tell them to do and this is not about prevailing in a court of justice it’s about bullying wearing down spending money exhausting intimidating chilling opposition.
S25: And the reason that has been a mystery to me is because I feel like unless you know people like that who transact with attorneys like that it’s almost impossible to understand how Donald Trump thought about the Office of Legal Counsel how he thinks about White House counsel how he thinks about his own attorney general. But once you think of it in that frame what you’re describing as either mob lawyers or New York real estate lawyers that whole world opens up an understanding of how Trump treats every single attorney he comes in contact with. Right. That’s I think that’s been a mystery is why in the rarefied world of the DOJ in the rare rarefied world of insider Washington legal analysts there isn’t this profound understanding that this is how real estate lawyers. This is how the world works for them right.
S27: Well the legal system is filled with many contradictions as you say it’s supposed to be a search for truth and justice lawyers are the ministers supposedly of truth and justice. The theory is the client goes to the lawyer makes a full disclosure of the facts the lawyer advises the client on how to proceed in court or out of court and the client normally takes the lawyer’s advice or they agree on what the way forward should be. One of the crown jewels of our legal system is the adversary system. And the idea is that the best way to get at the truth unlike the European system is to have two sides represented by Knights Templar and effect the lawyers who are advocates for the client’s position and argue the client’s position in the court. And from that somehow or other truth emerges part of it is examination and cross-examination. And part of it is brief writing and making various contentions of law in briefs or in oral argument to the court. Cohn and Trump perverted the system. Cohn had often said that his job as a lawyer was to get the best possible result for his client by whatever means Trump bought into that. So here we have the race discrimination case and the race discrimination case. Trump and his father were charged with discrimination in housing many reputable lawyers had advised them to settle the case this is one of the first cases under the Fair Housing Act that had been brought by Nixon’s Justice Department and it would have been easy to negotiate a consent decree with the Justice Department where you neither admit nor deny wrongdoing and you agree not to discriminate again and the whole thing was relatively inexpensive and you could dispose of the problem Cohen said. You’ve been mis advised by these other lawyers. We’ve got to fight this thing and we’ll win. And that Trump bought into that and so the first thing Cohen did was call a press conference because he taught Trump that a very important element in any controversy is to try your case in the press. So they called a press conference and Trump borrowed some words from the McCarthy era. He accused the Justice Department of a witch hunt. He accused the Justice Department lawyers of being storm troopers and then he turned around and counter-claim against the government of the United States for 100 million dollars. Well that counterclaim was dismissed by the court in very short order. The next thing that happened was they made all sorts of allegations and affidavits before the court signed by Cohn in which they accused the two female justice department attorneys and there weren’t so many in those days of being overbearing of browbeating witnesses of using Gestapo like tactics. Well the Justice Department of course responded saying that wasn’t true and it was such a falsity that Cohen went to court and said Let’s mark this off the calendar. The Justice Department said no judge we want a hearing so that these lawyers can be exonerated. There was a hearing and the lawyers were exonerated. Now that’s all that happened in the case. And five years later they entered into a consent decree with the government without admitting or denying they settled the case Trump said they won the case because that’s another precept that he learned from Cohn. Isn’t that what happens to you in the litigation claim victory and go home. So he claimed a great victory. Of course the evidence against them of discrimination was overwhelming. Black testers were denied housing Trump projects and white testers were immediately shown the best apartments available. So that was the second precept that he learned and how to weaponize the law. And there were others as well deflecting delaying creating a smokescreen but basically undermining the adversary accusing the adversary of partisanship which was just what con did with Morgenthau saying it was a personal vendetta. It was political and trying to sidestep the rule of law in that fashion.
S28: I’m just reading here you say here are the golden rules of litigation that Roy Cohn taught Trump one never settle never surrender to counterattack countersuit immediately. Three no matter what happens no matter how deeply into the muck you get claim victory. That’s what you just said and it’s so staggering to layer that against even events we’re seeing this week right. This is exactly the playbook going after the whistleblowers suggesting that the whistleblowers lawyers are corrupt and they all worked for Hillary Clinton and Chuck Schumer. I mean this is just the playbook. The language of witch hunt the language of personal attacks because the enemy deep state enemy he’s this stuff is decades old you’re saying and people tend to believe it.
S26: I mean Cohn used it because he found it to be effective. Of course he was eventually disbarred for stealing money from his clients and lying to the court and doing other things that were reprehensible.
S28: So one of the things that that this new york Fair Housing Act litigation from 1973 one of the ways it becomes a template for everything we see after is the you spin it out you delay it you tack the lawyers no matter what happens even when you enter into a settlement agreement or a consent decree you say you won and one of the mysteries to me of the Trump era is everyone believes he won. That’s again the playbook after the Mueller Report. We want no collusion. That’s not the answer. And so I guess again it goes to this question I have this undergirding question about the limits of the law. If the law can just be spun on television the way Bill Barr spun the Mueller report on television or the way Roy Cohn typically spun losses as as wins then it does suggest that there’s just a limit to what the law can do. There’s this forgive the word but trumping factor here which is how you spin it.
S26: Yes well the law has its limitations. Mr. Bumble said the law is as and there can be a tremendous injustice. I happen to believe that sooner or later however it catches up with you.
S27: You can’t play the game indefinitely and I think I closed my book with a quotation from the honorable or dishonorable Roy Cohn where he said no public man can indefinitely survive in the center of controversy. And I think it applies in spades to Donald Trump. And I think you see now that he himself realizes that he’s in deep deep trouble.
S28: So I want you to segway if you would to the section again. This has been a perennial mystery for me because I’m sure you’ve heard the same thing any New York real estate person who’s worked with Trump at any point in the past decades says the same thing which is he stiffs his contractors he’s camp trips his lawyer he stiffs initiative even stuff does Dennis. He just sues everybody and then declares victory even no matter what. He drops a certain declares victory. Yeah. I mean these patterns go way back. Everybody in the New York real estate world if you scratch him for a second. These stories pour out. So I want you to describe if you would your chapter when you recount for us the arc of how he comes to Manhattan from his humble roots in Jamaica Queens.
S29: They weren’t so humble. They lived in a large house in Jamaica Estates. His father wrote around a Cadillac. His father was a billionaire and so not so humble at all.
S26: But his father had made his mark with these with the program of borrow and build in the boroughs and Queens Staten Island and the Brooklyn and Trump wanted to make his own mark. That’s it has been a touchy thing with him. Yeah. His father was irrelevant.
S25: He did it all himself and then enters into sort of one disastrous enterprise after another and still despite the fact that he stiffed everyone and pays nobody still manages to end up at that top of Trump Tower.
S26: Well Mark one of the types of litigation that he had was litigation with his partners. He never had a partner whom he didn’t have a lawsuit with. It started with the Pritzker is with whom he had a joint venture on the Commodore Hotel. Why the Pritzker went to Trump. No one really knows. Trump didn’t put a dime into the deal. Later he bragged about it. Pritzker has put in about 400 million dollars and then the idea was in effect to get some green mail. So Trump sued the Pritzker is for a billion dollars and they get rid of them. They gave him 20 or 30 or 40 million dollars and he went away so he had kind of some seed money for his further operations. Everything he touched seemed to be bad. He was involved with some Chinese partners on the west side yards. He sued them for a billion dollars. That suit was dismissed and the Chinese had much more money than Trump to litigate the case.
S27: And at the end of the day Trump’s case was dismissed and the Hong Kong Chinese partner said that you’ve gotta understand Donald Trump he likes litigation for lunch. He was in partnership with some Japanese interests over the Empire State Building. They owned the Groundlings. The strategy was to charge the Prime tenants who were Lawrence Wynn and Peter Malkin and Leona Helmsley with mismanagement of the building. So they made all kinds of allegations that was rat infested and that it was deteriorating and it was decaying and what they were trying to do was break the groundless and take it over because it was highly profitable and the building was well-run and so that case was eventually thrown out. He had litigation with his partner Ken sicko over the general motors building which he lost and he was squeezed out of the ownership of the general motors building which later became very profitable for Zuckerman and the other realtors who eventually acquired the building is that Prime tenants in the building and it was a prime property so we can know he didn’t hold on to the Plaza Hotel. So as one business failure after another. But in each one of them he used litigation as a tactic in order to try to suppress his partner to try to squeeze some money out of him and to try to move on to the next deal. So that was those were his adventures in New York. He’s held himself as a great success. He held himself as the greatest real estate developer in the country. He was far from that and he actually had as much litigation in his career as the five top real estate magnets in the country combined right.
S30: That’s your subtitle of your book. Thirty five hundred losses.
S27: I may be an understatement. I was afraid. Critics of the book might say this is fake news how do you know there were thirty five hundred and actually you’ve completely overstated and exaggerated. Actually the American Bar Association counted 4000 and others have said that the American Bar Association understated that there were really more cases than that.
S28: Can you talk a little bit about the Polish brigade case at Trump Tower just because it’s so incredible.
S27: Trump Tower was an adventure in itself at the time of its construction most developers in New York were using structural steel. The reason was it was much less expensive as a building material than poured concrete poured concrete in New York at the time was controlled by the Mafia. The five families or clients of Trump’s friend Roy Cohn and the principal mobsters in the poured concrete business were Paul Castellano who was murdered outside the sparks restaurant and fat Tony Salerno and he was sentenced to 99 years in prison and he died while still serving his sentence sometime in the 1990s. But Salerno met with Trump in Cohn’s office. Cohen used to have was a conciliatory to the mob. He used to have mob meetings in his conference room which was in his townhouse confident that the feds would never bug a lawyer’s office and they never did and there they could plot their skullduggery with Cohn anyway through Cohn. Trump was connected with these mobsters and also with a man named John Cody who was head of the Teamsters union in New York. And while there was a citywide Teamsters strike the construction went forward and the port concrete trucks which have to go in immediately or else a gels had access to Trump Tower for the construction of again Trump tried to cut corners and he hired to do the demolition a window washing company in Buffalo. The employees of whom were undocumented Polish aliens and Trump was quoted as saying I love these poll locks. They really know how to work. Later he denied that he knew there were Polish workers at the construction site. Turned out he wasn’t providing protective helmets. He wasn’t providing protective glasses and he wasn’t paying money into the union pension fund. He was legally required to do. Of course there was litigation over this Mitt raged on for years. The federal judge who presided over the case said Trump testified in his testimony. They didn’t know what was going on was completely incredible and unworthy of belief and it ended in a settlement and the settlement was sealed about 15 years later a federal judge unsealed the settlement papers and it revealed that he’d settled for 100 cents on the dollar.
S31: That was the Polish so-called Polish brigade case so so you talk at length about basically same pattern airlifted to Atlantic City casinos seen a catastrophic decision after a catastrophic decision and yet somehow he’s untouchable and says that he’s this great casino magnet. But I wonder if you would focus for a minute on his before on Native Americans as part of that because again it is a pattern with him that has roots that go way back.
S32: Well he had a thing about Native Americans and of course called Indians one of the reasons being that Native Americans were granted by Congress an exemption to the gambling laws so that they can have casinos on their reservations which he saw as a threat to them. And he began to make all sorts of comments like how do you know this is an Indian. I looked at him he didn’t look like an Indian to me and he said. I was introduced to him and I asked him what his name was and he said Chief Sitting Bull. But you can call me Johnny Jones and he derided them he belittled them. He made fun of them. And he tried to drive them out of business and he actually hired Roger Stone to smear an Indian tribe and they had all sorts of ads that on their reservations there were drugs. Same thing as he did later did with the Mexicans that were drugs and they were rapists and they were killers. And then there was a hearing before a committee of the House of Representatives and Trump testified and he said that the crime is rampant among these Native Americans. These Indians and the they shouldn’t be allowed to have casinos and they. And you look at them you can’t even tell that they’re Indians. They
S33: don’t look like Indians to me. And they don’t look like Indians to Indians. And a lot of people are laughing at it and you’re telling how tough it is how rough it is to get approved. Well you go up to Connecticut and you look now.
S29: They don’t look like Indians to me. And there was a member of the House who came down hard on him.
S34: Thank God. That’s not the test of whether or not people have rights in this country or not whether or not they pass here looked at Sands whether it. Depends whether or not you’re approving it.
S35: No no it’s not a question whether I’m approving it. It’s not a question whether I’m a few minutes. Mr. Trump you know you know in the history of this country where we’ve heard this discussion before didn’t look Jewish to me. I really didn’t look into me. They don’t look Italian to me. Well the. And that was a test for whether people could go into business or not go into business whether they can get a bank loan. To black or not black enough.
S32: I want to find out but Trump was very happy because he thought he made his case that Indians were bad and they competed with his casinos. Interestingly he later partnered with Indian tribes on casinos because he thought he could make money and he was also denied by one Indian tribe. The possibility of partnering with them because of his testimony before the House of Representatives.
S28: So Jim we’ve talked a lot about the ways he weaponized as the law for his business and real estate interests. But the other point you make which is sort of obvious but subtle is that he also weaponized as the law to protect his name and his brand. And for that he uses instead of real estate law he uses libel his defamation suit teases these nondisclosure agreements and B and he uses trademark law.
S27: Now one of one of the prize cases he brought was against a mother and father who had a small business in science at Long Island. It was called Trump travel. It was called Trump travel because they book Bridge tours for people to go on a boat and play bridge. And also Trump kind of connotes excellence like Ace Hardware primacy.
S26: So Trump had never been in the travel business and in any way shape manner or form and somehow or other this was called his was attention. So we sued them to join them from using the name Trump. Is no joke about Otto Kahn. It was a great German Jewish financier and he was walking in a certain neighborhood and he passed a tailor shop and it said Joe Kahn tailor Otto Kahn’s cousin. And he stormed into the shop and he said I am Otto Kahn and you are not my cousin. I demand you get that sign down.
S36: And so the next week he was walking in the same neighborhood and passed the tailor shop and there was a sign Joe Kahn Taylor formerly out of commerce and Trump tried the same thing with the travel agency. They lost their life savings defending the case eventually it was settled and the settlement was they had to drop the sign Trump down five points and type. But they could continue to use the name and have it in the window. And then Trump sued them again for violating the settlement agreement. The judge dismissed the case he said had been settled and that was the deal. But he said that the tape was still not small enough then being a bully that he was he took on someone that really was in a position to defeat him. There were two brothers named Trump from South Africa and they were in the pharmaceutical business and they used the name Trump in their pharmacies and somehow or other there was an article in pharmaceutical news that talked about Trump pharmaceuticals Trump had never been in the pharmaceutical business in any way. And he sued them for a billion dollars and they sued Trump for a billion dollars.
S32: And the case raged on and eventually Trump’s case was dismissed. They had the money they were richer than Trump. They had the money to fight the case and they eventually prevailed. So he did use litigation as a weapon for no real reason where he couldn’t have made money on the case where he had no real injury to be redressed. And it was simply to teach people a lesson and or to make a statement. I mean he sued a critic for The Chicago Tribune for who wrote an article saying that one of his planned buildings would be an express since on the skyline. And Trump sued and the case was dismissed because of the rule of opinions. Of course that expression of opinion can’t be libelous.
S30: So I guess this brings me to the ugly underbelly of the book which is time after time he uses his litigation to just grind people down.
S28: I mean this is a person who as you say almost always punches down rarely punches up and I am thinking of the woman in the Trump University suit whose life he destroyed to the point that she just wanted to withdraw and he wouldn’t let her withdraw because he wanted to keep destroying her life. And there is a way in which the cost of being in litigation with him literally the cost financially but also the emotional toll and the physical toll and the hours and years of your life given over to this means he wins even when he loses he wins. And that is just a disparity of wealth and power that now feels when I look at it in the aggregate.
S32: In the book baked into the system because he didn’t win the Trump University race he settled for 25 million dollars the students so-called students got their money back and most of their money back it was an outrageous case was brought as a class action. And as you say he centered his vitriol on the class representative. Now there’s nothing he could have achieved in a class action by discrediting the class representative. That’s the way class actions are constructed. And actually the class representative I think the name was Tyler Markov had prevailed in a procedural round against him and had gotten almost a million dollars in legal fees but he took off on her and she said she couldn’t stand it anymore emotionally she went to get out of the case and he took the position she’s the key witness. She has to testify. And it’s outrageous that she wants to get out of the case and he opposed it. Eventually she was allowed by the judge to get out of the case. She was entitled to get out of the case and another class representative came in so she didn’t really lose she got a large award and legal expenses and she got her wish to get out of the case she really couldn’t conducted anymore and she couldn’t stand the fact that Trump was trashing her all the time and he lost that case. He settled it on the eve of his taking the oath of office on the advice I think of political supporters of President of the United States should not have to testify in a court defending himself against fraud. And there was no defense because they held out that he constructed the curriculum he picked all the teachers it was his program and he really had nothing to do with it.
S31: And we should just flag in case listeners forget of course the judge in that case was none other than Judge carry out the judge that he tried to discredit as a so-called Mexican judge who was too biased to be able to judge his case fairly. So there was nobody who didn’t get the stink on them including the judge who ended up ruling against him. I wonder if we can talk for a minute about the suit that he brought against Tim O’Brien the journalist Tim O’Brien who because I think you point out in the book one of the cardinal sins if you talk about Donald Trump is saying that he overstated his wealth which is something that many journalists did. But Tim O’Brien ended up in a lawsuit for it. And one of the things that happens in that lawsuit is that there is a deposition in which we don’t have that many examples of this is what Donald Trump does under oath in a lengthy deposition right.
S29: Yes and and one day of deposition he lied at least 30 times under oath the deposition was conducted by Mary Jo White former United States attorney for the Southern District of New York and her partner Trump repeatedly misstated facts about his net wealth as holdings his enterprises.
S36: And it was a pattern that we see right up to the present day with his not only lying about facts which are incontestable but also lying about his having said things which he is on the record as having said Trump loses the case on summary judgment it’s affirmed in the appellate courts and then he turns around and brags Trump to the Washington Post.
S30: He didn’t mind losing because quote I spent a couple of bucks on legal fees. They spent a whole lot more. I did it to make Tim O’Brien’s life miserable. I’m happy about it. So again he’s putting into words this basic thesis which is even if you lose you won because I the money didn’t affect me and he’s poorer and I stole his time. That’s that’s the center of the creed.
S29: And I hope his lawyers got paid because it’s possible he didn’t really spend a few bucks on legal fees.
S30: Can you talk a little bit about the ways that Trump used the law to keep the women in his life his ex-wives accusers sexual partners at bay.
S32: I guess you could start with the Varner Trump with whom he had a prenup. He later said on Larry King show he believes in prenups prenups are very important and the prenup gave her a pittance. And her lawyer in negotiating the prenup was none other than Roy Cohn. Later the prenup was modified. She got a little more money and she had three children. There was a settlement and the terms of the settlement although reported and some of the reports are all over the lot but the papers are under seal as they are and as you know and matrimonial cases his second wife Marla Maples had a prenup with her and that was basically that she was a wife and a man. So after six months he could get rid of her and pay nothing after a year. So she’s like a random rentals man a wife. Yeah. And after a year you could pay a little more and get rid of her and after two years maybe a little more in the day. I think you gave her notice the day before one of these terminal dates when the price escalated and then you have the two alleged sexual partners. Stormy Daniels and Karen McDougal and 10 years after the alleged affair. He has Michael Cohen enter in to a nondisclosure agreement with Stormy Daniels which provides for liquidated damages in amounts that she couldn’t possibly afford if she disclosed anything about Trump or his sexual practices or about his family. And then there was the catch and kill agreement that he had his friend at the National Enquirer enter into with Karen McDougal who got slightly more than Stormy Daniels and all the moneys were kind of wired from an LLC which was controlled by Michael Cohen and is the subject of continued criminal investigation.
S25: So I’m going to ask you the hard question which has plagued me from page one of your book which is much of what you do is surface that which was kind of known about him all along. And yet and yet when Hillary Clinton says you don’t pay taxes and he answers Because I’m smart in the debates we all say yeah. This is how business is conducted in America. He’s not doing anything that rich people don’t do every day. This is how people get rich. We in a sense colluded and I don’t mean we you and I necessarily but I think Americans have fully bought in to the principle that you weaponize the law and lawyers to get rich and that what he’s doing is in fact no different from what any other rich person does and that makes him smart. Am I too cynical.
S26: Well I think it may be slightly cynical. Cohn was a notorious tax evader. There was a judgment for six million dollars against him for the IRS at the time that he died. He wrote a book in which he said no one who is smart pays taxes. And this was the template for Trump and his attitude and his father’s attitude.
S27: Actually they were notorious flagrant tax evaders. They saw loopholes. Now is that smart is that how rich people get rich. Maybe it’s true of some of them. But the fact is there were in my view there were so many horribles paraded before the electorate about Donald Trump in articles in the Washington Post articles in the New York Times and other media not even necessarily the mainstream media.
S36: People became a unless the times and maybe some of them are selling us the ties and they don’t see the evil that’s involved in someone who willing to violate the law and play the system and who believes that the means justifies the ends and you see that in this repeated attempt to get foreign help in smearing his political opponents. And he did it in 2016 with the Russians and he did it and came out just this past week they did it with respect to Ukraine.
S31: And that leads me to the question that I’ve been dying to ask you which is you reference in the book a couple of times the single most famous Trump ism when it comes to lawyers is when he bemoans to Don McGann he’s trying to get Jeff Sessions to stop the Russia probe. He can’t do it he’s trying to fire Jeff Sessions he can’t do it and he he he at some point flings up his hands and says to White House counsel Don McGann where’s my Roy Cohn.
S25: He wants the lawyer to be the plumber to just get the thing done. And does that explain why Rudy Giuliani has personal lawyer somehow is up to his neck in this conversations with the Ukraine in the alleged threat the quid pro quo to the Ukraine about withholding 400 million dollars in aid. This is not a White House lawyer this is not a government lawyer. This is his Roy Cohn who somehow negotiating with the Ukraine over getting dirt on Biden.
S26: Well he Cohen was a fixer and I think Giuliani might be fairly said played that role with respect to a tried to with respect to the Ukrainians and Trump like Cohen like to talk in code. When I first met Cohn he was in the ante room of the grand jury when he was a target of investigation and he was going around to the witnesses and raising his open palm to the witnesses as if to encourage them and give them a high five. He was really saying take the Fifth. So count tartan codes. Michael Cohen testified that Trump talked in codes and he understood the code so you don’t want to say anything that’s explicitly incriminating. So you talk obliquely you say to the Ukrainian president talked to Giuliani and Giuliani knew what his mission was.
S27: It’s quite obvious and this is what Learned Hand called the accumulation of instances which each one perhaps innocuous. But when you couple them all together really present a very damning portrait.
S28: And that that leads me to this question about lawyers because you point out early in the book a lot of these lawyers got stiffed. Not clear what he paid.
S26: Roy Cohn everybody seemed to be in on the grift you actually paid relatively little to Roy Cohn because Roy Cohn was delighted to have him as a client who was a comer and a certain Demi mundane milieu of New York society after Cohn did a particularly good track for him. He presented Cohen with a pair of cufflinks and a Bulgari box and contracted them right up until the time he died of AIDS. And his executive who was Cohen’s boyfriend when he found the cufflinks tried to sell them and he found out that they were knockoffs and they didn’t come from Bulgari at all.
S28: It does a little bit. Answer the signal for me.
S31: Tragedy of this age is the Harvey Weinstein’s the Jeffrey Epstein’s The Donald Trump’s who find lawyers who are willing to do whatever they’re asked right and I’m now thinking of Jodi Kantor and Megan to his book that that Harvey Weinstein had very very fine lawyers David Boies but his daughter wanted to work at Miramax. You know Lisa Bloom who had optioned her book to Weinstein.
S25: These are our heroes in the legal community. And it just feels as though every one of us can be bought and sold.
S36: Well I don’t think every one of us but lawyers of course are human beings and like all of us are subject to the sins of the flesh. And this may be true of certainly Harvey Weinstein’s lawyers and it certainly may be true of Lisa Bloom who represented I guess some one or more of the plaintiffs in the Harvey wants in case so she was eventually I think she resigned as the attorney for one of the women. And it may be true of I don’t know that it’s true of lawyers for Jeffrey Epstein.
S32: That hasn’t really come out yet but of course Jeffrey Epstein was a close friend of Donald Trump as he was of Bill Clinton and he was the famous photograph of him and Melania with Trump and Melania with Jeffrey Epstein. So if there’s.
S25: An overarching narrative here it’s that the law solves our problems also very wealthy people can use the law to contract out of the law to get out from under it in a million ways and that at the end of the day having infinite resources and infinite time an attorney is prepared to do the dirty work.
S29: You may not be subject to the checks that the rest of us are subject but you may be Bernie Madoff went down every once in a while someone goes down and the prosecutor gets a lot of headlines.
S36: But I think you’re right in general people of wealth have a tremendous advantage before the bar of justice. They can hire better lawyers and they can then position to present a better picture of the court than people who have have less although indigent defendants who have public defenders have lawyers who are highly experienced in the type of case that they typically have and they are effectively defended and represented. So I think that generally the constitutional requirement that people have counsel has been complied with. And you know and counsel some counsel will always be more effective than others and that’s kind of baked into the system but the lawyers have always been an unpopular profession and a popular profession because they are tarred with the same brush as their clients. It appears as though for money they are saying something which is untrue. Now doctors priests priests is not tarred with the same brush as a president. A doctor isn’t tarred with the same brush as he treats a mobster he or she treats a mobster who is ill. That’s part of their obligation. So a lawyer has to represent bad people and the. It’s certainly the lawyer’s expectation and it’s the exploitation of our system. The lawyer will be paid. So I think that you can talk about money influencing the law but by far and large the system works we have a great system of justice. We have more of this federal judiciary and while the Times verdicts and judgments are imperfect I think by and large the right thing is done.
S30: So this is my very last question Jim and I have enjoyed this very much and I probably sound more existentially despairing than I should but it is clear from at least the book where the book ends and the book doesn’t contemplate the events of this past week or two. But it is clear that so far Donald Trump has been unshakable by standard legal systems and that even when he loses he wins and even when he goes bankrupt he wins and he somehow seems to like a phoenix from the ashes rise time and time again from the constraints of the legal system.
S28: You point out in your introduction you’ve been a centrist Republican your whole life. You are not a Trump fan. Is it your view that this impeachment this fundamentally political process that we launched into this week is going to be the effective gap filling check on a president who seemingly cannot be checked by the rule of law.
S32: Well it appears it may be the only check because the Justice Department has taken the position that you can’t indict a sitting president. So what process is available to check the criminal activity of the president one of the things that came out of the whole Muller flap in my view is that the executive branch is constitutionally incapable of investigating itself in a way that the outcome of the investigation has any public confidence whatsoever. They tried it with an independent prosecutor. Scalia issued a stinging dissent in which he said that the judicial branch should not be appointing prosecutors. And it’s undoubtedly true the special prosecutor law was allowed to lapse. So we came up with something like Mueller which was I think totally unsatisfactory. So Rudy Giuliani said if Trump murdered coming in the White House the remedy is impeachment. It’s not a criminal prosecution. That may be so. I don’t believe that because I think the Constitution permits process sitting president but in this case what’s interesting is while impeachment has always been called a political process and undoubtedly because of tribalism many Republicans in the Senate who would vote to acquit Trump without hearing any of the evidence. You don’t see many profiles of courage in the United States Senate today. But I think that it’s a legal process as well. And if you listen to Cass Sunstein at the time of the founding of the Constitution the founding of the country it was very well understood that accepting help from a foreign government to influence the outcome of a federal election would be an abuse of power and would be an impeachable offense. Quite apart from the campaign finance law that came later or anything else.
S28: So I think what I’m hearing you say is to the extent that there is this foundational inherent platonic idea of what the lie is. It is a truth seeking enterprise right. The adversarial system that you laid out at the beginning that some version of that truth seeking is going to now have to be imported into the political branches to do a political act of impeachment. The law has gone as far as it can go. And that if we’re going to start talking about really getting to truth as opposed to whatever it is we’ve been doing for two years that’s going to have to happen in the house.
S32: Yes it’ll start in the house and eventually play out in the Senate. And I think even if he’s acquitted in the Senate at least a record will have been made of criminal activity and impeachable offenses on the part of the president United States.
S28: James Zion is a former assistant U.S. attorney for the Southern District of New York. He is the author of two prior books. His writing has appeared in Forbes The L.A. Times myriad other play and myriad other places. The book is plaintiff in chief a portrait of Donald Trump in 35 100 lawsuits published by all points books available this week. It’s just come out and Jim I cannot thank you enough. This has been an incredibly useful Congress.
S32: Dalia I can’t thank you enough. I’ve been a fan of yours for a long time and it’s wonderful to meet you and it’s wonderful to talk with you about this subject. Patrick thank you.
S3: And that is a wrap for this episode of Amicus. The extra extra long edition. Thanks for sticking with us. Thank you so much for listening. If you’d like to get in touch our email is Amicus athlete dot com and you can always find us at Facebook dot com flash Amicus podcast. And we love your letters and we love your feedback. Tell us how you want us to cover impeachment. Today’s show was produced by Sara Bernie. Gabriel Roth is editorial director Slate podcast. Andrew Thomas is senior managing producer of podcast and we will be back with another episode of Amicus not in two weeks in one week which are a long overdue term opener. Thanks for listening.