S1: This ad free podcast is part of your Slate plus membership.
S2: We’re always talking about, you know, prosecutors, prosecutors, prosecutors, even though, one, they’re not the panacea.
S1: Hi and welcome back to Amicus. This is Slate’s podcast about the courts and the law and the rule of law and the Supreme Court. I’m Dahlia Lithwick. I cover some of those things for Slate. The high court heard its final oral arguments of the term in these past two weeks. And, well, several things are noteworthy, including the First Amendment rights of the foul mouthed cheerleader. One other thing that is worth noting is that Chief Justice John Roberts, who didn’t much question why Donald Trump’s Justice Department kept changing sides in cases filed in the Obama era, complained on Tuesday that Biden’s Justice Department was doing the same thing in a case about crack cocaine sentences for our Slate plus friends, Mark Joseph Stern is out this week for a very richly deserved vacation. So we’re not going to have our regular debrief around the latest from the high court and other federal courts. But rest assured, he will be back for our next show. Today’s show, Truth, Accountability and No Consequences, this week finds us unbelievably about six months out from the 2012 election. And although it took a few days to establish as much and to be sure, millions of Americans still doubt this happened, we are six months out from Joe Biden’s victory in that presidential election. And so we now reside in yet another installment of Splitscreen America, in which the Biden administration is beavering away at health care and infrastructure and other acts of governance. While the Republican Party struggles to determine whether it wants to reside in that world in the manner of sale is Cheney or to live in an alternate reality in which Donald Trump, as he suggested this past week, won the election. The big lie means the opposite of the big lie. And he is going to resume power, I guess, any minute now. TV show biz lawyering notwithstanding. One question that really does linger, at least in the minds of the legal world, is accountability for all that the events of the past four years are already fading into this weird, smoky haze, things we’re going to discuss even on this podcast, things like the Mueller report and Michael Flynn and Ukraine, they already feel like distant memories. But the very idea of the rule of law obviously turns on whether there will be consequences or even minimal accountability for the legal actions and the lawyers that help Donald Trump and his Justice Department subvert truth and democracy for four years. And I think we should just agree, for many of us, it is just a relief to get to sleep through the night, maybe even sneaking in a couple extra hours of non panicky Twitter, checking on the weekends. And there are real consequences to consider if you’re thinking about looking backward instead of forward. And as Professor Jack Goldsmith told us on this show just a few months back, the act of reaching back into the past to hold people no longer in power to account can be really divisive and polarizing at a moment when the country needs to heal most of all. The wheels of justice turn very slowly, they throw up gravel like last week’s raid on Rudy Giuliani’s apartment, they remind us there are still active investigations into cases involving the last administration friends. It is twenty, twenty one, but there’s still an awful lot of stuff from twenty sixteen 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 twenty twenty two, maybe in twenty, twenty four. We wanted to talk about that tension on this show, the tension around looking forward, looking back around accountability and institutional reform. And there seemed like there was nobody better to talk to then. Preet Bharara was the U.S. attorney for the Southern District of New York from 2009 to 2017. He was famously fired from that position early on in the Trump era. Pretz podcast’s stay tuned with just acquired by Vox became required listening for the Trump legal resistance and his twenty nineteen book, Doing Justice. A Prosecutors Thoughts on Crime Punishment in the Rule of Law is out in both book and podcast form. Now, I joined Prete on his show just a few weeks ago to talk about, among other things, how to pronounce anarchist’s, why Justice Alito hates me so very, very much. And the Derek Shervin trial. And now, like a kind of podcast prisoner exchange, I am beyond delighted to welcome to my show. So prete at long last. Welcome to Anarchist’s.
S2: It’s great to be here. A prisoner exchange seems kind of extreme. Is that the kind of is that the kind of metaphor we need to use in the current era?
S1: I think this is I think this may be the first time that I went on someone’s show and they went on my own. It feels like the pro
S2: quo maybe is better.
S1: OK, so let’s let’s start at the very beginning or at the very beginning of the resistance, which is you getting fired by Donald
S2: Trump was right there for a moment because you said a resistance a few times. 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. And so so I don’t again, without offending anyone, I don’t identify with any particular capital or resistance.
S1: Before we let it go, can you tell me what capital or resistance signals to you? What?
S2: I don’t know. You don’t actually I don’t generally consider myself part of, you know, sort of groups that are not well defined.
S1: No, I think I mean, it’s it’s a really interesting problem. And I and I actually I think part of the problem is, as with all terms, I mean, we even just talked about the big lie being subverted to mean the opposite of the big lie. And I think that it means it’s it’s the resistance, as with so many turns of phrase in the last five years, is in the eye of the beholder. So I think I was just trying to figure out what the I of you well know.
S2: Look, I mean, to some people and this may not be a good way of talking about it, you know, use words that the groups attribute to themselves. You know, they use them pejoratively. And I think for some people, 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 to some people. I’m not saying to me an automatic knee jerk, everything that anybody Trump or associated with Trump says does things feels is automatically wrong. And I think that’s largely the case. But but I also like to think of myself as just me and an independent thinker who has some views that are similar to everyone who would refer to themselves in that mode, but also some not.
S1: So I think that this is actually a really good frame for the conversation I wanted to have, because 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 that. The axis of right, left, right, Democrat, Republican, it’s on an axis that I think you’re saying is really lashed to, you know, truth, law, other values that are separate from purely political values. And I think one of the things I’m trying to get at and I think we will get there 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, you know, good, bad, so so let’s get there. But let’s start. I do want to start with you getting fired, because I’m really curious what you would have done had you stayed on. And and I’ve heard you say and read, you know, God, it would have been awful if I, you know, had to be involved in, like, private side chats with Donald Trump, you know, while Michael Cohen was going on it. And I and I guess I want to ask this question because I struggled with it throughout the last four years of whether it’s better to quit and be fired and go or whether it’s better to stay in some leadership position when you know that the folks at the top are probably not valuing law the way you do, but you stay to mitigate against the worst. And there’s been lots and lots of questions about folks who stayed on in the Trump administration long after they knew it was futile because they really did feel that they could somehow ameliorate the worst harms. And I guess I’m curious what your view is. If you hadn’t been sort of 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?
S2: I don’t consider myself to be in the category of person who reported to the president either in the White House or as a cabinet secretary such that I was trying to mitigate anything. Right. So Donald Trump gets elected, I presume, like U.S. attorneys traditionally leave, you know, with some period of transition. And so I was preparing to leave. But then in my case, as people may know, Donald Trump asked to meet with me, implored me to stay on for another term, and I agreed to do that not because I thought of myself as a mitigator, but I thought of myself as someone who had an independent role where I wasn’t directly accountable, not accountable, but 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. So 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. So we’re not we’re not a policy arm of the government. We’re. A legal office that does criminal cases and defends against civil cases, bring some affirmative civil cases, and so that so long as it was the case that I would not be meddled with, I didn’t see any conflict between doing my job as I had done it for seven and a half years before and continuing to do so while Donald Trump was the president. I often say not, you know, how many times Barack Obama called me zero? And that’s how it should be between a president and the United States attorney. So that’s the first point. The second point, in response to your question, what would it have been like if if I had stayed? I don’t think it would have been tenable. And, you know, even if I had not been fired at some point, you know, as I think back. Trump would have continued to do the thing that he was doing, which was trying to cultivate Summerside relationship with me by calling not including the attorney general of the United States, not providing any understanding of what the agenda would be. 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. So at some point, I think not that much after I was fired, my sense has been that that I would have probably had to go either because I was being met with as kind of happened in March when he was calling me in in 2017, or because perhaps the office would have been asked to take some position that we didn’t think was right. By the way, as you’ve seen, the other would navigate that my old office on some matters, including the census issue, the immigration, this a question on the census, which I’m sure you’ve talked about on your show. You will not see the signature of any of the United States attorney or any assistant United States attorney from the Southern District on those filings, even though they’re in the southern district of New York. Those have been held those have been managed by and advocated for by lawyers in D.C. So that’s a long winded way of saying. I don’t know that it would have lasted long anyway.
S1: Actually, let’s turn directly to that, which is this question of 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. And I gather he’s facing, what? Twenty nine lawsuits, three criminal investigation, like a lot tax returns are in the hospital, had a bunch of Cyrus Vance Jr., the district attorney in 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? And what do you expect to see in terms of these, again, these questions of looking backward in accountability and having some sense that there is some closure to any of this? What are you watching?
S2: So, you know, people often pretty they’re not lawyers. They conflate some of these legal challenges that the former president faces and they often fail to distinguish between the civil cases, the civil investigations and the criminal ones. There’s not that much that we know about by the by way of a criminal investigation. 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. So I don’t know, because I’ve not been in the grand jury. I’ve not interviewed the witnesses. So Vance doesn’t call me up and tell me stuff. But there is some signaling going on. Silence is not running for re-election. The primary to replace him is in June. And for all intents and purposes in Manhattan, whoever wins the Democratic primary will probably be the next district attorney. So silence is, as they say, a lame duck. And as a lame duck, he’s done certain things, including hiring an outside forensic accounting firm. Right. Which is not, you know, super unusual, but it’s not that common. And he’s done something else that is less common, which is hire an outside lawyer, Mark Pomerance, who’s very distinguished, well-respected lawyer in New York, used to be in the southern district of New York, the U.S. attorney’s office, as a line assistant and then is as the chief of the criminal division. And I’m 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 it’s a pretty public thing to do. It also risks alienating people in your own office because why not rely on the great assistant district attorneys that you’ve hired and you’ve trained and you promoted within your own office? And it’s just 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 most carefully. And they they fought really hard to get the tax returns to the Supreme Court and back, as I’m sure you’ve covered, there is, you know, other reasons to believe that that the most potency with respect to any allegation against Donald Trump lies in the things that they’re investigating. It doesn’t sound far fetched to think well when it suited him. Donald Trump inflated the value of his holdings when it suited him. Otherwise, he understated the value of his holdings, both of which can 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 asking why, has met with prosecutors and investigators with the DA’s office like a gazillion times. All of those things. Again, they don’t 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 kind of don’t do that if it’s a long shot, I don’t think.
S1: And let me just ask you the insideout version of the same question, which is, 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? Or do you feel as though these handful of criminal investigations and the civil suits he’s facing kind of gets us there in terms of accountability?
S2: 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. And 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. It remains true, even though Donald Trump does not have a Twitter feed anymore. And this week, my understanding is Facebook said they’re going to maintain the ban on Donald Trump. He 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 and I had assumed at some point, but 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. You know what he did with respect to this, that or the other thing and how many other enforcement actions? He tried to interfere with which could have resulted in some obstruction exposure. So there’s that category, the stuff we don’t know about, which I just got to believe there is something there. We just don’t know what. And then the other stuff that’s big ticket that happened out in the open for which there was an attempt to hold him accountable, and I’m talking about the big lie of the election. Look about that earlier. And his involvement in the incitement of the riot and the insurrection on January 6th, and you had this political proceeding, and maybe that’s the best way that you’re supposed to try to hold the president accountable for a political act. But the stuff he did with the interference in the election in Georgia in trying to undo the results in Georgia. Which was the predicate for the insurrection on January 6th, I don’t know if you’re get 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. It’s a little bit hard because, as you know, on all these issues where people want to hold Trump accountable. You know, there are arguments that he is being careful enough with his language that it’s not clear one hundred percent galloping over the criminal line, although. There’s a good argument to be made that he did right with respect to the secretary of state in Georgia. And even with the insurrection, he did not say directly and openly in recorded fashion, I want you to make up votes to get me the 11000 some odd that I want. That’s clear. He said enough reasonable people like like I want to speak for you, but like me think that that’s what he was getting at. And similarly with the insurrection, he did, you know, populate his words with the phrase, you know, do it peacefully, because some staffer must have said, you’ve got to say that one time, Mr. President. And he didn’t say. You know, 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. He didn’t do those things would make it more clear, but he did enough that reasonable people like me and you, I think, would say he should be held accountable for those things. But, you know, in everything he does, he figures out a way to to signal what he wants without outright saying it. And I tend to agree with those people at first I thought was hyperbole, but I tend to agree with those people who liken him to a mob boss who doesn’t have to say the words. And you know what? Historically, to continue the analogy, it’s been very hard to prosecute the mob boss for these for these precise reasons.
S1: I wonder if the analog to that slipperiness in language that you’re describing from Trump himself is just I really cut when you said nobody in his cabinet has really come forward. You know, the folks he surrounded himself with have not tried to somehow, you know, exculpate themselves. But I am thinking there’s that same weird slipperiness, right, where Don McGann tells us. Well, he told me to do this, but if I had done it, it would have been obstruction. So I didn’t do it right. Or Rex Tillerson being like, oh, yeah, he told me to do this, but I told him it was illegal. And there’s a strange way in which, you know, I’m thinking of John Bolton. I’m thinking of John Kelly. He really surrounded himself with people who not only kind of aided and abetted some of the lawlessness, but they also aided and abetted just how difficult it is to hold anybody accountable because they just flat out said, oh, yeah, he wanted to do all this illegal shit and I stopped him.
S2: Right. Well, the irony is there’s that category of person who he surrounded himself with. But there’s two there’s two categories, right? One is the people you’ve described who, by the way, we’re not heroic figures and lots of reasons to be disdainful of them, including Dan McGinn, do not have the best reputation going in and certainly John Bolton. But, you know, it’s like you hire people who are bank robbers and you say, now we want you to kill the teller, we’re going to kill the teller, but they’ll rob the bank and they’re happy. Take the money from the bank. Does it make them heroes? Just make means that they draw the line at murder to you know, maybe this is an offensive analogy, but I’m using it anyway. But the other category of person. It’s like the full on criminal, right, Paul Manafort, Michael Cohen, Roger Stone, these people who are just sort of, you know, felonious characters through and through the like liars and cheats and scoundrels. And the irony there is when you surround yourself with liars, cheats and scoundrels, and then those liars, cheats and scoundrels get caught. And there’s speculation that they’re going to point the finger at Trump. He can say things, people can say you can’t believe them, their lives, cheats and scoundrels like. So, you know, it’s kind of a genius, perhaps accidental. So immunity that he has because he has a look at the end of the day, Michael Cohen. Is of questionable credibility, right? The Southern District of New York prosecuted him, sent him to prison. Never signed him up for a cooperation agreement. I don’t know all the reasons why, but I think it’s you know, it’s not unintelligent speculation like that caveat, not unintelligent speculation that it’s because they had worries about his credibility and about the the extent of his truthfulness. And when you have a guy like that who when he’s pinched, having done the bidding for Donald Trump year after year after year, no matter what. Now he’s pinched and squeezed and he says, help, by the way, Donald Trump did all these bad things, well, he’s rendered himself not believable in various ways.
S1: Well, that’s a nearly perfect segue way to the great, luminous, searing, scorching crazy of Rudy Giuliani. What first of all, before we dig in on that, will you just help our listeners who can’t remember the Ukraine scandal because it was 500 years ago? Can you just remind us for one little second what Giuliani is probably on the hook for this kind of influence campaign to get Ukraine to dig up dirt on Biden? What’s what’s the back story?
S2: Just reminding you is part and parcel of this campaign to do a number of things, try to encourage officials in Ukraine, remember, not necessarily to investigate Hunter Biden and his role in a company with respect to corruption company called charisma. But just to announce an investigation, because as I think reasonable people understand what Donald Trump and Rudy Giuliani, his henchmen were looking for was a political victory, didn’t really care about corruption. There’s fifty five other instances where they didn’t ever give a damn about corruption. But the one time, because maybe Biden could be implicated and by the transitive property, maybe his father could be implicated and was the chief threat and turned out to be the ultimate successful threat against Donald Trump electorally. That’s why they were interested in it. And 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 Evanovich, 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, so all that stuff is swirling around, unclear how that will play out in terms of criminal liability for Rudy Giuliani. And then people always want to ask, well, how does that play out for the president? I think that’s unclear also. I don’t know what you think about this. It’s a little odd. To me, and maybe I’m missing something very easily could be missing something of how Trump could be implicated in this Jovanovich business. When Trump obviously wasn’t lobbying on behalf of a foreign government and he had the full authority and power to fire her whenever he wanted, so I think that’s mostly about about Rudy Giuliani. But, yes, the fall of Rudy has been something to watch. It’s been a sight to behold. And it’s been, among other things, said.
S1: Well, yeah, because I think you know better than anyone that, you know, Rudy was not a clown show his entire career. And for those of us who begin and end at a Philadelphia landscaping company, he’s a clown show. But he has this long and storied career as a serious attorney. That’s that’s what you’re referencing. That’s what’s sad that he’s turned into, you know, Sidney Powell and Lin Wood overnight.
S2: You know, it’s funny, I I said on my own podcast this week and I tweeted about the things that Rudy is saying, and he’s he’s adopted the playbook that every prosecutor is familiar with. And that is your target, your subjects, the people you charged, they never send you flowers or chocolates. Right. 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 a saying that the people of the Southern District are jealous of him because they haven’t made as big, you know, have 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, you know, got his two year sentence against Michael Milken. Right. And so he’s resorted to this kind of crazy rhetoric because that’s all he has. And I said something like, you know, the southern district hasn’t changed. Rudy Giuliani has changed. And some people resented that wording and saying he was always this way. He was always a terrible person. And that’s that’s actually not quite true. It is it is the case that he had a certain kind of mean streak. And a certain kind of you know, you know, some people might say hyperaggressive. Approach to crime, broken windows, the squeegee guys. When he was mayor and when he was U.S. attorney and he has an explosive personality and there’s lots of negative things about him, a lot of people don’t like him for those reasons. But but the straight out, crazy, nonsensical nature of some of the things he says and does that is new. And I’ve talked to look, Rudy Giuliani was very nice to me when I became the U.S. attorney back in 2009. And I did what some other people do. And I sought advice and counsel from people who held that very powerful job. I’m 40 years old. It’s a huge job. And I met with I met with all I met with Bob Morgenthau, Mary Jo White, Jim Comey, anybody I could find who had done that job. I sat down with him and I had a meal with Rudy Giuliani and he was very mentoring in that meal. This might surprise some folks because he did care about that office. He did love that office. Not everyone loves the way he ran it, but a lot of people do. And the irony also is that’s the thing that propelled him to the mayor’s office and he’s trashing the same place that made him. And that’s what’s kind of sad. But he did morph over time.
S1: This goes exactly to what you opened with Prete, which is there is just a way of looking at this in a lawyerly way, and you can say as a lawyer, look, sometimes, you know, he was overzealous and sometimes there were unfortunate outcomes. But I don’t think anybody thought he wasn’t a lawyer. And now we’re in this crazy reality TV lawyer world where you say anything you do anything, unbound from truth, unbound from consequences. That’s not the lane in which I think you you sort of checked me at the beginning and said, look, let’s be careful with the location of, you know, resistance to. And that’s exactly what this is. This is Giuliani moving into this world where I guess he’s just what Michael Cohen was. I mean, he’s just a fixer, but he’s also a liar.
S2: Look, I’ve had no reason to criticize Rudy Giuliani. I invited him to the office early in my tenure to address the folks. Like I invited the FBI director and I invited other people, Supreme Court justices, to come and talk to the staff. Right. I have no animosity towards Rudy Giuliani. He’s one of the people who ran that office, is pictures in the hallway, like all the other pictures of the people who ran the office. And he’s a notable alumnus of the office. But I will tell you, it’s not just me, it’s people who otherwise, you know, I had mixed feelings about him as mayor and a lot of other things that he’s done, but no animosity. But there are other people who had actual full on, you know, adoration for him in legal circles in New York. And they’ve been saying, you know, even even sort of before the recent credit, they’ve been saying for a while something something is different. And he’s jumped the shark a little bit, and I don’t think in any other administration would he have been able to have the role that he’s had without. I mean, all the reporting you see is. All the you know, the semi normal people around Trump want want Rudy to shut up and not go on TV and to some extent they were successful, right? Giuliani never got a cabinet position. He never had an official role at some of the most prominent legal proceedings involving the president, including the two impeachment proceedings. He basically has served the function of being like a blathering TV personality who distracts and now his son has taken up that role as well.
S1: And before we leave Giuliani, I just want you to talk for one second. You mentioned FARA, the Foreign Agents Registration Act. And I think, as you said, that the whole purpose is just to get people to register as a foreign agent if they’re going to work on behalf of foreign interests. And I wonder if you feel like it’s too small, Bill. It seems really
S2: well, some people are saying that. And I don’t know. I mean, here’s the problem. You know, I talk for a living now. And this is an admission against interest, but I don’t know nothing. There’s there’s a line for one of my favorite movies, Miller’s Crossing, where a character says, jeez, Tom, you know, I don’t know nothing. I was just speculating about a hypothesis. But my feeling is. That to engage in this kind of aggressive investigation, to persist in wanting to do the search of the premises and seize the electronic devices. And given the nature of what sentencing usually is, even if you get a conviction on Farra and how difficult that’s been, and there have been some missteps and failures by the Justice Department in that regard, the former White House counsel, Greg Craig, being an example. And there are other examples that there’s probably more and we just don’t know. Look, there could be a whole host of things, but I’m again, speculating about a hypothesis. There could be tax fraud problems. There could be money laundering issues. There could be campaign finance problems. My hunch is, you know, I ran the office, so I know how they proceed. That that that there is at least the belief, a reasonable, good faith basis to believe that there’s other criminal exposure that Rudy Giuliani has, that I don’t know that for a fact, but I think you’re right, and that would be my guess.
S1: So this brings us to Bill Barr, the former attorney general. Another person that I think we could have almost exactly the conversation. We had somebody who not long ago I said, oh, thank goodness Sessions is out in bars in because he’s one of those.
S2: We were wrong. We were wrong.
S1: I was one of those those lawyers, lawyer people and an insider who cared about the department and wouldn’t completely corrode the department for Trumps. And I was wrong. But I do think that Barr changed. And you can tell me if you think differently. I think Bill Barr of the Trump era is quite different from the Bill Barr of decades earlier. Am I wrong? I don’t know.
S2: I mean, the evolution that we described with respect to Rudy Giuliani had to do a little bit with his tone, with his, you know, becoming untethered to reality. I don’t think that happened with Bill Barr. Bill Barr remained until the very end. Really sharp, really smart, which is why he was more dangerous than someone like Jeff Sessions, his ability to sort of undo in advance preemptively the findings of the report and some other things requires tremendous deafness that Rudy Giuliani is not capable of. Maybe Giuliani just sort of, you know. Does his crazy press conferences and gets fooled by Borat, right, that’s not happening to Bill Barr. I do think there may have been an evolution. And how he thinks about the approach to law and how he thought about the independence of the Justice Department, but I don’t know if that’s an evolution or he was never presented with those things. There are other folks, too, by the way, in journalism, and you wonder where they always this way or that something change. And there are folks, including, by the way, prominent elected officials in Congress. Who, when presented with the choice of jumping on the bandwagon of a bad person but who can confront them, power in the Republican Party, choose that as opposing to stick to their guns. I mean, look look what’s been happening over the last number of days and weeks with Liz Cheney. I’m Kevin McCarthy, the leader of the Republicans in the House. I have reason to believe that he knows better. But he’s choosing a particular path, Rudy, I think, stop knowing what. He used to know and doesn’t know better anymore, and with Bill Barr, it could be either. I don’t know. What do you think?
S1: No, I mean, my theory of the case is that there were two tracks to take in being a Trump loyalist and one was the clown car track, for lack of a better word, with just the notion that I’m going to be a celebrity, I’m going to be on TV, I’m going to be famous, I’m going to say a bunch of crazy crap and get attention because
S2: they get sued by Dominion.
S1: It’s the currency, right. And then say, you know, Sydney, pal. Like what? You believe me, I’m not a lawyer. I’m just, you know, MYM like, I don’t know. But I think that’s one one route, I think. And we had done air on the show and I think he sort of made this point that to the extent that BA changed, it wasn’t that he fell in love with fame and celebrity. It’s clear, as you say, I mean, he was doing his work under the radar and he very rarely made a spectacle of himself. But I do think he was a true believer in certain values around religious liberty and these culture wars that he imagined that, you know, suddenly were on the brink of cultural annihilation. That stuff, I think, was really comfortably wedded to the clown car part of the Trump administration. I think he allowed the craziness, including Donald Trump tweeting threats at judges right up until the brink because he had another agenda that he was pushing. So I guess, you know, I my sense is that his change wasn’t the same as Giuliani’s change, which was just now I’m a circus performer.
S2: Something else going on, too, I think. And the other issue, you mentioned a litany of things that he cared about, one of which also is a belief in broad executive power when he found a president who’s prepared to not only hire him, but pursue that vision of the presidency. You know, he was like at the playground. Right. But the other thing that I think goes on with some of these folks that we misjudged is I think we underestimate the degree to which not that they love some affirmative policy position or political position of Trump and his allies, but what they hate and there are things that they hate. They hate woak. They hate the idea. And you see this a lot recently. They really hate the idea. And you see this on the court. They hate the idea that people can stand up and say in this country there’s such a thing as systemic racism because they don’t think that they are. And so I think for some of them Bilborough, I feel like bullbars in this category. You know, he got a little older set in his ways. He has particular views and then he sees all these people saying the stuff that is anathema to him. And he just despises them and and their words and who can he cling to then? But the other guy, with all his faults and flaws, borderline criminality, he’s going to hug Trump because on the other side are the enemies that he can’t even bear, not just intellectually, but also rhetorically and aesthetically. He just cannot bear them. Does that makes any sense?
S1: Yeah, no, that’s so astute. And I think it it actually goes a long way to answering what my next question was going to be, which is why the hell in this, you know, episode this week, we have Judge Amy Berman Jackson writing an absolute scorcher of an opinion, just trashing BA essentially for lying when he released the Mueller report. And, you know, in response to a lawsuit that was filed by crew, which is a government transparency group, you know, BA essentially was trying to say that, oh, you know, I consulted with senior people in the Office of Legal Counsel and that there was a determination that there had been no obstruction whatsoever. And it turns out not true. Berman Jackson just absolutely eviscerates him. But the Zite ghost of the 40 whatever page opinion she writes is that he was doing that thing that we just said BA wasn’t inclined to do, which is just soulless carry water for Donald Trump, like soulless Leli for him, implicate the department, put a whole bunch of attorneys on the hook for lying and that feels more Giuliani ish. Then he’s Lemba that you and
S2: I, he so I don’t know amendment to what I said before about his chain. I don’t know if he was a liar back in nineteen eighty nine or whatever the year was, but he clearly became. So you know, you recite the Jackson opinion. There’s another example of this that you know was parochially of interest to me because it involves my former office. There was a whole business of removing Jeffrey Berman, my successor at the Southern District. And, you know, the attorney for the United States, Bill Barr, said publicly in an announcement and also said to the potential other successor, the head of the S.E.C. at the time, Jay Clayton, said Jeff Berman was stepping down. And when someone says someone is stepping down, you and I understand. And by the way, Bob Barr has talked about the necessity of precision of language. He’s testified about that. When you say someone is stepping down, that signifies to everyone, yeah, he’s voluntarily chosen to leave the job. He’s resigning, retiring, whatever other word that implies voluntariness you want to use. And that was a lie. Jeff Berman was being fired. And if you’re prepared to lie about that publicly, when you know there’s a person, a witness, namely the guy you’re firing, why do you think you can get away with that? So, yeah, at some point he introduced and maybe it’s been the case all along, but he didn’t have to use it before resorting to prevarication to protect the president or whatever other value he wanted to protect.
S1: OK, so this brings me to the nub of it. This is why I need you to be on this show. Set me straight. Is Amy Berman Jackson going to bring accountability to America? It looks as though, first of all, I don’t know if she’s the best person to be bird dogging the old administration. I don’t know if this opinion results in anything other than forcing the Justice Department to decide whether to appeal it and putting them in the awkward position of having to be like, yeah, we’re all a bunch of liars here at DOJ. There’s no great outcome from this particular case other than, I guess, having in the record in the historical record that Bill Barr and a bunch of lawyers lied to protect Donald Trump. But it goes to this question of accountability, because I’m just not super convinced that these drip, drip, drip after the fact lawsuits, both Giuliani in terms of Ukraine and Barr on Mueller, get us to the place that I think you have been really pushing both in your book and in the podcast. But we need to get back to restoration of norms and of shared truth and of values and of rule of law. Is this getting us there?
S2: I mean, it doesn’t hurt, doesn’t harm the cause. But is this all of a sudden months after Trump left office and even more months after Bill Barr left office, going to be some kind of catalyst? You know, I don’t think so. And look, you know, I’m a lawyer. I worked with the legal system. I worked in the Justice Department for a lot of years. I also worked in the United States Senate. And there were different modes of justice and. You know, bank robbers are held accountable through the criminal justice system ideas and U.S. attorneys, and that’s the only way they’re held accountable and that is what makes sense. And we have a system in place to try to hold bank robbers accountable and they get more or less punishment depending on how much money they stole and who they harmed and whether or not they were there was violence, et cetera, et cetera, et cetera. Then you have political actors like the United States whose misconduct runs the gamut of. Merely unethical or improper and immoral to potentially, hypothetically impeachable along the way on that spectrum to outright criminal. And as you know better than anyone around our system deals with those things less well than the garden variety bank robber. And the system tried twice more times in the history of the country with respect to one one term president. Two times people tried to hold the president accountable for political, moral, ethical, perhaps criminal, but by definition, impeachable crimes. And it didn’t work because there were more Republicans and Democrats and they sided with the president, and so at the end of the day, I get I’m one of the people we’re always talking about, you know, prosecutors, prosecutors, prosecutors, even though I was one, they’re not the panacea. Right. And even if you held Donald Trump accountable for something, tax evasion in some small measure to the Manhattan DA’s office investigation and potential prosecution, does even that do the trick? Does that really address the broad swath of terrible things that Donald Trump inflicted on the presidency and on the country? No, I don’t think so. And I don’t say that to be enough to sound a depressing note. But at the end of the day, the failure of accountability for someone who’s who was the president of the United States, I think is not so much maybe an excuse for my former precincts is not necessarily so much on individual prosecutors, but on the polity as a whole. If Republicans and supporters of Donald Trump at any point in mass rejected him, there would have been a different kind of accountability, either the impeachment process or some other process. At the end of the day, he was rejected and that rejection was rejected, namely the election of 20 20. But, you know, as I’ve aged over the course of the last four years, I worry that we place too much blame and burden on everyday prosecutors when the problem is much, much, much bigger than that.
S1: So that’s I guess that’s my last question for you and maybe you’ve answered it, but I do know that you talk in your book and you think a lot about, quote unquote, the primacy of truth and getting back to truth. And I think what you’re saying is that the idea that law alone or prosecutions or investigations alone get you to shared truth we now know has to be false. A third of the country won’t get vaccinated and 70 percent of Republicans think that Biden stole the election. So the law doesn’t solve for that. This is an information problem. A communications problem. Right. And I think I mean, you mentioned up at the top, but Facebook just essentially kicked the can down the road with respect to Trump’s presence on Facebook, their, quote unquote. Supreme Court, on the one hand said that Trump I love this language, quote, severely violated, severely violated the
S2: terms, strenuously object.
S1: That is extreme due process. But I think at the same time, then they say, you know, the suspension is justified. But why are we having to decide this? You know, Facebook is evading its responsibilities by asking, you know, the supreme of Facebook to it’s just this funny batting around the truth problem. And so I guess I just wonder and I know you said you talk for a living, and I do think that the media has such a role to play in knitting us back, if possible, to shared norms and shared ideas around truth. But I do. I guess I just want to leave you with this last question, which is if we can agree and I think we agree that Amy Berman Jackson can’t do this on her own and Cy Vance can’t do it on his own, what is going to get us to the truth? Part of how we have shared norms and values?
S2: It will not surprise you to know I don’t have an answer to that question.
S1: No, I know I don’t look.
S2: I’ll take a subset of just a thing that happened January 6th. We can’t get agreement because we need political agreement on forming a bipartisan, you know, equally allocated commission. To get to the truth of what happened on January 6th, that’s how little there is agreement on what the truth is and whether or not people want accountability. And so we’re just living in a time like this is the saddest thing of everything. And I think you put your finger on it. It’s not the lack of accountability for people who may have done bad things. That’s not good. That’s terrible. But I don’t mean to be overly dramatic, but, you know, for large segments of the population, the death of truth. And I don’t know what you do about that, right, I mean. You know, people would say, look, unless you had a videotape of Donald Trump committing a crime of stabbing a person on Fifth Avenue or shooting Fifth Avenue famously. It’s not that they would necessarily forgive him, they wouldn’t believe it. We are on the cusp of deep fakes becoming a big problem in this country, and I think it’s an underestimated problem. But that’s just going to be another way for people who want to believe something to be true no matter what. To never be confronted with contrary evidence, because everything can be manufactured, everything can be made up, look, you and I have always known that there’s a subset of the population who thinks that the moon landing was faked, that 911 was faked, that the earth is flat, etc. And it’s not like a tiny percent, one 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 have had in the podcast a number of times, who speaks, you know, very wisely and sagely about these issues, having had the experience of the Soviet Union, the damage is not done when. You know, somebody says the truth is X and some liar says the truth is, is why the damage is done. When somebody says the truth is X and the other person says there’s no such thing as truth, X is not wrong. And 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 and you have somebody. And just imagine Donald Trump was still in office. He would get a subset of people to believe anything about covid or about his response. And he set something in motion that is very, very destructive. Why is it the case? I mean, do you lay blame at the feet of anyone other than Donald Trump that the most resistant to vaccine demographic in this country is white Republicans? Would that have been true under George Bush? I don’t think so.
S1: Yeah, it’s that truth axis you started with that is really, really separate from politics,
S2: can we can we end on some happier note?
S1: Yeah, I think we should end on a happier note. I just can’t think of one. When you said imagine Trump was still president, I actually felt my hair. I could hear my hair turn gray. Let’s maybe stipulate that the happy note is that you and I will still doing the hard work of thinking about the law and podcasting and writing at least can sleep till 8:00 on the weekend. How about that?
S2: I sleep later than that.
S1: Preet Bharara was U.S. attorney for the Southern District of New York from 2009 to 2017. His amazing podcast, Stay Tuned With Prete, was just acquired by Fox and his 2019 book Doing Justice. A Prosecutor’s Thoughts on Crime Punishment in the Rule of Law is out in both book and podcast form. Above all, he is one of the truly, truly smart and thoughtful people talking and thinking about the law in the public sphere right now. I cannot thank you enough.
S2: Thanks for having me. It’s a real treat
S1: and that is a wrap for this episode of Amicus. Thank you so much as ever for listening and thank you so much for your good letters and great questions. You can always keep in touch at Amicus, at Slocomb, or you can find us at Facebook dotcom slash amicus podcast. Today’s show was produced by Sara Birmingham. We had research help from Daniel Maloof. Gabriel Roth is editorial director. Alicia Montgomery is executive producer. And June Thomas is senior managing producer of Slate podcasts. And we will be back with another episode of Amicus in two short week.