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February 13, 2020

Scenes from an Impeachment (with Dan Goldman)

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This week’s episode of Stay Tuned, “Scenes from an Impeachment,” features an exclusive interview with Dan Goldman, the House Intelligence Committee’s Director of Investigations and Senior Adviser who was charged with leading the public questioning of impeachment witnesses. Goldman, a former federal prosecutor who served as SDNY’s Deputy Chief of Organized Crime, takes us behind the scenes of impeachment.

As always, tweet your questions to @PreetBharara with hashtag #askpreet, email us at [email protected], or call 669-247-7338 to leave a voicemail.

To listen to Stay Tuned bonus content, try CAFE Insider with free two-week trial. For students with a valid .edu email, there’s now a special rate.

REFERENCES & SUPPLEMENTAL MATERIALS

SUBPOENA POWER

  • CRS Report: Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, May 2017

THE WHISTLEBLOWER COMPLAINT

  • Inspector General of the Intelligence Community Michael Atkinson’s first letter notifying the House Intel Committee of the withheld whistleblower complaint, 9/9/19
  • Chairman Adam Schiff’s letter to Acting Director of National Intelligence Joseph Maguire requesting the withheld whistleblower complaint, 9/10/19
  • Chairman Schiff’s subpoena and accompanying letter issued to Acting DNI Maguire regarding the withheld whistleblower complaint, 9/13/19
  • The Whistleblower complaint regarding President Trump’s actions, filed August 2019
  • Acting DNI Maguire’s testimony before the House Intelligence Committee, 9/26/19

MUELLER REPORT

  • Attorney General Bill Barr’s letter on Special Counsel Bob Mueller’s report’s principal conclusions, March 2019
  • Special Counsel Bob Mueller’s Report on The Investigation into Russian Interference in the 2016 Presidential Election, March 2019

UKRAINE

  • Memorandum of Trump’s July 25, 2019 conversation with Ukrainian President Volodymyr Zelensky
  • Former special envoy to Ukraine Kurt Volker’s text messages
  • Three House Committees Launch Wide-Ranging Investigation into Trump-Giuliani Ukraine Scheme, 9/9/19
  • “Rudy Giuliani Plans Ukraine Trip to Push for Inquiries That Could Help Trump, New York Times, 5/9/19

HOUSE IMPEACHMENT WITNESSES

ARTICLES OF IMPEACHMENT

  • The House Resolution Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors, December 2019
  • Clip: Pelosi’s full impeachment inquiry announcement, 9/24/19
  • “Seven freshman Democrats: These allegations are a threat to all we have sworn to protect,” Washington Post, 9/23/19
  • “How senators voted on Trump’s impeachment,” Politico, 2/5/20

SENATE TRIAL

  • Clip: Rep. Adam Schiff Closing Argument in Senate Trial, 1/23/20
  • Clip: Rep. Adam Schiff Closing Argument in Senate Trial, 2/3/20

ROGER STONE

  • Roger Stone initial sentencing memo, 2/10/20
  • Roger Stone updated sentencing memo, 2/11/20
  • Trump tweet congratulating AG Barr on Stone case intervention, 2/12/20
  • “Prosecutors quit Roger Stone case after Justice Dept. intervenes on sentencing,” The New York Times, 2/11/20
  • “Trump pulls nomination of former U.S. for Treasury post,” Axios, 2/11/12

Preet Bharara:

From CAFE, welcome to Stay Tuned. I’m Preet Bharara.

Dan Goldman:

There were two trials going on. The substantive trial of what the actual facts were and what the evidence was, and then there was a whole political trial going on. So, I like to think we won the actual substantive trial, and we lost the political trial.

Preet Bharara:

That’s Dan Goldman. He’s the House Intelligence Committee’s senior advisor and director of investigations. You might know him as the lead counsel for the House Democrats. He was one of only two staff lawyers tapped to publicly question 12 impeachment witnesses who testified before the House, but what you may not know is that Dan is a former SDNY prosecutor who used to work for me. A very skilled trial lawyer who was taking on Russian crime networks and mobs, there was no case too complex for Dan. In this special episode featuring an exclusive interview with Dan Goldman, we go a bit longer than usual, diving deep into his experiences serving on the House Intel Committee, and talking about what went on behind the scenes. We talk about his approach to questioning witnesses and crafting arguments, the democrats’ strategy, the Senate’s handling of the impeachment trial, and the significance of Trump’s acquittal. First, a short ad break. We’ll be right back. Stay tuned. Dan Goldman, thank you so much for being on the show.

Dan Goldman:

Thanks for having me, Preet.

Preet Bharara:

So, I called you [inaudible 00:01:28] and we were trying to schedule this post trial, and you said this week would work for you. I said, “Oh, is the House in recess?” He said, “No, but I’m in recess.” So, they gave you a little time off?

Dan Goldman:

Not really, I’ll be heading back for a couple days, but I did take an extra few days after the trial.

Preet Bharara:

You’ve been working very hard.

Dan Goldman:

Yep, pretty much seven days a week for the last six months.

Preet Bharara:

You have been, some of which has been public, some of which has not been. We’ll talk about both aspects of that. You’re going to tell us a lot of secrets, maybe.

Dan Goldman:

I’ll do my best.

Preet Bharara:

So here’s how I want you to think about the interview. I was contemplating talking to you today and it occurred to me that this conversation we’re about to have is actually very similar to conversations we had pursuing to a very important tradition in our office. You may recall what I’m talking about, and that is after a trial the prosecutors and the staff who worked on the trial would come and report the verdict to the US attorney whether it was a guilty verdict, a mistrial, or an acquittal. So, this is just like that, and you’ll recall that you and I have done that on a number of occasions when we both worked at SDNY, and you’d talk a lot of smack about the defense lawyer, and about the judge, and everything else. So, why don’t you just pretend that it’s just you and me? Just like old times. First, what was the verdict?

Dan Goldman:

The verdict, technically it was an acquittal.

Preet Bharara:

Technically it was an acquittal.

Dan Goldman:

Yes.

Preet Bharara:

I think that that’s called an acquittal. Was that your first acquittal, Dan?

Dan Goldman:

That was my first acquittal, yes.

Preet Bharara:

I’m sorry to hear that. Do you blame yourself?

Dan Goldman:

I do. I do. It’s entirely my fault.

Preet Bharara:

Is there something you could have done better in the way of advocacy?

Dan Goldman:

Well as a staff member, behind the scenes a little bit, but I do think that-

Preet Bharara:

I was kidding, I was kidding, I was kidding.

Dan Goldman:

I know you were, but-

Preet Bharara:

Everyone knows. We were talking about the [inaudible 00:03:07] being in in a moment.

Dan Goldman:

Well, yeah. I guess the point that I would make in response to that is that there were two trials going on. There was the substantive trial of what the actual facts were and what the evidence was, and then unlike the trials that you and I were familiar with when we were prosecutors, there was a whole political trial going on, which is just a totally separate animal. So, I like to think we won the actual substantive trial, and we lost the political trial.

Preet Bharara:

The jurors voted against conviction.

Dan Goldman:

Yes, absolutely.

Preet Bharara:

Let’s go back a few steps. So, you were a prosecutor in SDNY for about a decade?

Dan Goldman:

That’s right.

Preet Bharara:

Then you left and you had a lot of great cases. Maybe we’ll get to some of them, including as a mob prosecutor, and as a securities fraud prosecutor. So, you had a lot of experience I know firsthand, because I worked with you. Then you left the office and you began doing other things. You became, as Donald Trump would later say, a TV lawyer, which is interesting that he criticized you for that implicitly.

Dan Goldman:

I don’t think it was a criticism.

Preet Bharara:

Oh, it was a compliment?

Dan Goldman:

I think in Donald Trump’s view, if you’re on television then you are qualified, and that I think has been exemplified by a lot of his hires.

Preet Bharara:

May I make the following remark, Dan, even though this is in audio format? You are right out of Central Casting.

Dan Goldman:

As a TV lawyer?

Preet Bharara:

Probably Trump would hire you. You have no mustache, and he likes that. If you have a mustache you get fired pretty quickly. We’re going to get to the mustache gentleman John Bolton a little bit later in the program. So at some point, and you were also at the Brennan Center and you were figuring out other things that you want to do, and you were a very notable presence on television commenting like I do also on the Mueller investigation and all sorts of things that affect the rule of law in the country. Then you went to go work in the early part of 2019, March of 2019, for Chairman Adam Schiff. Before I ask you why you chose to do that, I guess my other question is, what was it like to work for the second best boss you’ve ever had?

Dan Goldman:

It was a great experience, but nothing is like working for you, Preet. Of course.

Preet Bharara:

You read that perfectly. Explain. You live in New York. You have a family. We don’t have to get into the details, but you have kids, you have a family that you had to separate from to go do this work. What was the calling for you to go do that work?

Dan Goldman:

There were a couple of things that jumped out to me, and as much as I enjoyed the TV work and did feel like there was somewhat of a greater purpose to explain to America this [inaudible 00:05:36] world of federal criminal prosecutions that you and I experienced, and at the time during 2018 the Mueller investigation was all the rage and all the news. So, there was some value in that but when the democrats won the House, it felt like there was a unique opportunity to go inside the arena rather than be commenting from the outside. I had watched Adam Schiff on television and in other ways and was incredibly impressed with him, maybe we’ll get to talk about this, and had a chance meeting with him in a green room in 30 Rock in New York for the Brian Williams Show at 11:00 PM one random night, it felt like there was an opportunity to get back into the substantive work. Do whatever I could to provide some sort of oversight in the check and balance on this president.

Dan Goldman:

At the time, there was the expectation that the Mueller report would come out and that there would be a fair amount of work that flowed from that in the intelligence committee, because that was the congressional committee that was doing the parallel Russia investigation. At least until then Chairman Devin Nunes stopped the investigation in March of 2018. Chairman Schiff had some ideas of trying to [inaudible 00:07:03] some of the financial conflicts and the foreign interference risks that some of Donald Trump’s business interests may have had, since he did not disclose his tax returns and did not disclose so much of his own financial arrangements. So, there were a couple of things that drew me down to DC and to work for the intelligence committee, but impeachment was not one of them. That was not why I went down there. It was generally not the committee that handles impeachment. That’s the judiciary committee. It truly was to work right on the front lines with Chairman Schiff and do whatever he wanted and the committee wanted to do.

Preet Bharara:

So about 15 years before you made that transition from New York federal prosecutor to the Hill, I did the same thing. I’m wondering what in your experience it was like, whether there was some culture shock from going to federal prosecutor’s office, which was where you cut your teeth, to going to Capitol Hill.

Dan Goldman:

There are tremendous differences and there was a lot of culture shock. I think the two things that jump out the most is I never understood the real power of a grand jury subpoena until I had to issue congressional subpoenas.

Preet Bharara:

Which is super lame in comparison, am I right?

Dan Goldman:

It’s a different animal. Obviously there’s not the threat of imprisonment.

Preet Bharara:

A smaller, weaker animal.

Dan Goldman:

If you have a recipient of the congressional subpoena who does not adhere to our general principles of the rule of law-

Preet Bharara:

Then you write a book.

Dan Goldman:

Yeah. The consequences for violating a congressional subpoena are far less severe than the consequences for violating a grand jury subpoena.

Preet Bharara:

Uncertain.

Dan Goldman:

Very uncertain.

Preet Bharara:

Right.

Dan Goldman:

This was something that we grappled with over the last year as more and more subpoenas were being defied, but the other thing that was a very interesting change is whereas everything that you do as a federal prosector for the most part is confidential. Not just the grand jury material, but every investigation is confidential within the office until you make a decision to go overt about it, but the confidentiality, you took it so much for granted as a prosecutor. In Congress, it’s almost the exact opposite. Nothing is confidential, and I don’t say that pejoratively as if everybody leaks, which is true, but the pressure to apply to people to comply with a subpoena or other request is really public pressure. It’s political pressure, and so it is intended in some investigations and some investigative techniques, what I had to quickly learn is how to use the public pressure from going over and making investigative steps that are public to try to ratchet up the pressure. Frankly, I know we’ll get to it, but that was a huge part of how this impeachment investigation got going.

Preet Bharara:

That was my experience also. As an actual federal prosecutor or head of an office, at the most you make an announcement at the start of charges to explain what the charges are, and then maybe you make a statement at the end or when there’s a conviction, where the jury makes a determination whether there’s a guilty plea. Imagine doing it the way that members of Congress, chairman and otherwise do it, which is every day there’s an update on what the investigation is, where it’s going and everything else but as you say, that’s where the oxygen comes from. So, the public sentiment is on the side of pursuing the investigation because it’s not done by federal prosecutors, it’s done by elected representatives when it’s in the Congress, and you need public support to be able to continue to do it.

Dan Goldman:

The thrust of the power that you get from doing oversight or doing investigations in Congress is entirely from the public will, and so yes. Absolutely you need to have the public on your side with you as you are moving forward with anything, and that is what ultimately can change minds.

Preet Bharara:

So, you started at the beginning of March of 2019, and about three or four weeks later the Mueller report is delivered to the attorney general, and then many weeks after that, too many weeks in my view, it becomes public mostly. What did that mean for your work?

Dan Goldman:

Well, the Mueller report and the roll out of the Mueller report was not something that we were prepared for in the way that it happened, and it came out in drips and drabs, and there’s no question that now looking back that the initial letter that Attorney General Barr issued summarizing the report was misleading at best. We were expecting the report to drop and it to be released in short order.

Preet Bharara:

Was that naïve in retrospect?

Dan Goldman:

No. I don’t think it was naïve because I think, well I personally, I’ll speak for myself, I don’t think we have encountered an attorney general like Bill Barr in at least a generation.

Preet Bharara:

How do you mean that?

Dan Goldman:

Well, I think as what we’re seeing over the course of the last year during the time that he has been attorney general, and Chairman Schiff talks about this a lot, that he truly views himself, certainly the president views himself this way, but he views himself also as some version of an arm of the president. That there is very, very little independence between the Department of Justice and the rest of the executive branch, as has traditionally been the case since Watergate. So Bill Barr at that point was very new and I don’t think that anyone anticipated that his letter summarizing the Mueller report would be so misleading, or that it would take four weeks to do redactions that by all accounts had more or less been teed up by the Special Counsel’s Office.

Preet Bharara:

Though from the face of the letter itself, there was reason to be concern, was there not? Because he essentially took the next step and basically say that he was exonerating the president, even though there was language in the report specifically addressing the issue of exoneration, and Bob Mueller wrote, “We can neither exonerate nor charge.” Fair.

Dan Goldman:

That’s right. So Bill Barr, I don’t know how long he actually understood all of the evidence, or whether he ever understood all the evidence, but it took him two days to make a decision that the president did not obstruct justice, whereas Bob Mueller over the course of two years did not reach that conclusion. I think you make the right point that that was a real jolt, and particularly at the time remember, we didn’t know what Mueller said. So all we had was what Bill Barr said, and so the answer is whether we were naïve. Perhaps you could say we were, but certainly as things trickled out it became clear that this was a very aggressive attorney general, and someone who was very willing to do as much as he could to at that point I would say at least protect the presidency. I think it has become more clear that he has a greater and further interest in protecting the president himself.

Preet Bharara:

We’ll be right back after this short break. So, the Mueller report is done. Bob Mueller testifies. It was not the position of Adam Schiff, Nancy Pelosi, and others that articles of impeachment should be drafted based on what Bob Mueller found as of say July or August of last year.

Dan Goldman:

As far as I was aware, there were never real conversations about whether an article of impeachment should be drafted up July 25th, which was the day after Bob Mueller testified.

Preet Bharara:

So, that was still possibly on the table even with respect to the Mueller side?

Dan Goldman:

Well, the judiciary committee was continuing to do their investigation as a follow on to Mueller’s testimony that they hoped for example would have included the testimony of Don McGahn. Now as you know from reading the volume two, Don McGahn was sort of the key witness to many of the acts of obstruction. He was told by President Trump to fabricate evidence. He was directed by President Trump to fire the special counsel. He was a central player, and the idea was that the judiciary committee in particular would try to follow up and get his testimony, which they had asked for by the way I think in April. So, I guess certainly there was no decision to move forward with impeachment based on that, but I don’t think it had been taken off the table as of the August recess for Congress.

Preet Bharara:

Fair to say there was no great momentum in favor of impeachment based on the Mueller report.

Dan Goldman:

That was clear.

Preet Bharara:

So now we get to late summer of 2019. Remind folks the first way in which the public came to understand that there was some issue brewing with respect to Ukraine.

Dan Goldman:

On September 9th, the intelligence committee, and the oversight committee, and the foreign affairs committee sent letters to the State Department and the White House which effectively announced an investigation that had been internally long discussed among the three committees to investigate what at that point was primarily Rudy Giuliani’s very public efforts to pressure Ukraine to do these investigations that we now are so familiar with. That it seemed unusual, odd, and certainly worth investigating as to whether he was actually doing some sort of foreign policy. What was he actually doing?

Preet Bharara:

We still don’t know.

Dan Goldman:

Well, he has been very clear and he said it was not foreign policy, and I think the Senate trial made it very clear, and even the president’s lawyers conceded that Rudy Giuliani was not doing foreign policy.

Preet Bharara:

Right. So September 9th is when that public announcement is made. When did you and other members of the intelligence committee become aware of there being something to investigate?

Dan Goldman:

We were aware back as of mid-May when there was a big New York Times article where Giuliani said he was going to go to Ukraine to, what he said is, “I’m not meddling in an election, I’m meddling in an investigation,” [inaudible 00:17:50]. He was very overt about it, very public about it, and says that he was going to investigate. He wanted Ukraine, or pushed Ukraine to investigate these two allegations, and then he quickly announced that he wasn’t going to go. Well, that triggered some interest within congress, and then over the course of the summer, we started looking into in a variety of different ways with the two other committees what was going on, and what we could glean to be going on privately before we move forward publicly.

Preet Bharara:

Then there was a catalyst which became known as the whistleblower report.

Dan Goldman:

That date of September 9th happens to be a very critical date, because it was not only the day that the three committees finally announced this investigation, but it was also the date that the intelligence committee received notification from the inspector general that there was a whistleblower complaint that he found to be credible and of an urgent concern, and therefore fell within the Whistleblower Statute and should have been turned over to Congress, but had been withheld from Congress.

Preet Bharara:

How big a deal was that within the committee? Was that a holy crap moment? Was that just something that was incremental to what you were already thinking about?

Dan Goldman:

Well, there was nothing on the face of it that indicated that it related to Ukraine. It was clear that there was some, to be honest I can’t remember if it was that letter or very soon thereafter that we learned that it was related in some fashion to the president. We learned that because there were references to privileges or executive privilege, and that could only mean one thing. So, the next day after we got this notice from the inspector general, we wrote to the director of national intelligence, the acting director of national intelligence saying there’s no basis to withhold this. You have to remember, a complaint like this had never been withheld from the Intelligence Community in the 20 years that this statute has been enacted, and even complaints that are not credible, and most are not found to be either credible or an urgent concern, they’re still turned over. So this was completely-

Preet Bharara:

That was a clue.

Dan Goldman:

Yes. It was a big clue that there was something going on here, but again, we didn’t necessarily know. I think it was at some point in that week that we got some degree of confirmation that it was connected to Ukraine.

Preet Bharara:

So, people at this point will expect me to ask the obviously question, among other questions. What was the interaction between the committee and the whistleblower?

Dan Goldman:

I’m going to reiterate what the committee has said publicly, which is that the whistleblower reached out to committee staff, as is very standard practice, and gave I think very, very broad outlines of what was going on or I think that the whistleblower had some degree of concern. The staff of the intelligence committee directed the whistleblower to go to get a lawyer and to reach out to the inspector general, who is designated by the statute to receive precisely this sort of complaint that ultimately was filed.

Preet Bharara:

So Chairman Schiff has said since he does not know the identity of the whistleblower, did not meet with the whistleblower. Is that all correct?

Dan Goldman:

That is correct.

Preet Bharara:

You can’t say who did have the contact?

Dan Goldman:

I cannot.

Preet Bharara:

Can you say if it was you?

Dan Goldman:

I cannot say anything about this.

Preet Bharara:

Okay. So then stuff begins to happen at a fairly fast pace. Remind us when the whistleblower report was made public and when the so called transcript, which is not a transcript, of the call between President Trump and President Zelensky of Ukraine was made public.

Dan Goldman:

So, the timeline is that September 9th, we get notice, which is a Monday. We got notification of this complaint. September 10th, we write to the acting director of national intelligence and say to him, “There’s no basis for you to withhold this. You must turn it over by Friday the 13th, or we’ll be forced to issue a subpoena.” We get nothing. By that Friday, issued a subpoena, and the subpoena was not only for the documents, it was also for his testimony.

Preet Bharara:

Not a federal grand jury subpoena, but one of these weaker animal subpoenas.

Dan Goldman:

Yes, except that the one thing that I would say that I’ve learned over the last year is a subpoena for a government official to testify before Congress is not something that generally is taken lightly, and is not something that is frequently defied, and is certainly not something that can be defied without some sort of legal basis. So, it was not an insignificant-

Preet Bharara:

Move.

Dan Goldman:

Move, exactly, to subpoena the acting DNI to testify, and that subpoena goes out on Friday the 13th for the acting DNI to testify on the 19th, the Thursday. The acting DNI was clearly in a very uncomfortable position because he was following dictates of both the White House and the Department of Justice, who’s the final word on legal matters within the administration. Yet, he understood that this was unprecedented and unusual.

Preet Bharara:

So now we get to the day before that testimony is supposed to take place, the 25th, a Wednesday. What happens?

Dan Goldman:

So in the morning, the White House decides to declassify and release the call record for the July 25th call between President Trump and Zelensky. That preceded by a few hours, the intelligence committee receiving a copy of the whistleblower complaint, and the afternoon of July 25th, the afternoon before the acting DNI was going to testify the next morning.

Preet Bharara:

Let’s pause on that for a second. So you get the call record. You accurately call it a call record. The president calls it transcript. It says on the first page, this cannot be repeated enough, on the first page of that call record it says, “This is not a transcript,” correct?

Dan Goldman:

It does. I think that’s been overblown a little bit.

Preet Bharara:

Yeah? How so?

Dan Goldman:

I think the testimony during our investigation revealed that there were potentially two things that had been left out. One was the critical word Burisma, which was left out, and the other was a small omission of a video, reference to a video.

Preet Bharara:

Do you think it’s largely an accurate transcript?

Dan Goldman:

I do. Well, I’ll put it this way. We have no reason to believe that it’s not.

Preet Bharara:

That’s what a lot of people speculate, that there must be a lot more missing, because they understand that the length of the call was X, and the [inaudible 00:24:38] the transcript don’t seem to reflect the length of the call. Any [crosstalk 00:24:41]?

Dan Goldman:

Yeah, well remember that you’ve got translations going back and forth. So, Zelensky spoke primarily in Ukrainian, so there was a fair amount of translation.

Preet Bharara:

It doubles the time?

Dan Goldman:

It doubles the time, exactly.

Preet Bharara:

Were you surprised when the call record was released?

Dan Goldman:

We were very surprised, and the reaction-

Preet Bharara:

On a scale of one to 10, how surprised? Could you do this for us, could you paint the scene? Where were you? Were you at your desk, were you in Adam Schiff’s office? What was going on?

Dan Goldman:

I was in Adam Schiff’s office. We were gathered there understanding that it was going to be released, and we had no idea what was going to be in it. It is released and we make copies, and we’re all sitting there reading it.

Preet Bharara:

Silently to yourselves, or does someone do a dramatic reading?

Dan Goldman:

Silently to ourselves, while at various points people start to blurt out aspects of it, or just amazement because I don’t know what the calculation was as to why to release it, whether it was to try to get out in front of it given that the complaint was going to be released, but to us reading it, it felt much more damning than we would have expected it to be.

Preet Bharara:

Because my view as a rational person, when I heard that it was being released and the public didn’t get to see it for a while longer than you did, was it must be exonerating in some way. It must be exculpatory in some way, otherwise why would you release this thing instead of fighting about it? So your reaction was, it was very damning.

Dan Goldman:

Yeah, and frankly once we realized that this complaint was being withheld and that there was a call between Trump and Zelensky that was at the heart of the complaint, which was publicly reported, we were expecting months long fight to get this stuff. We were not expecting to get either of those documents nearly as quickly as we did, and I agree with you Preet, it felt a little bit like their hand was forced because the complaint was going to be released now. They had made that decision clearly.

Preet Bharara:

They didn’t have to make that decision either.

Dan Goldman:

They didn’t. So, that is a whole separate decision, and that is where I go back to I don’t know what was going on with the DNI Maguire and his efforts.

Preet Bharara:

Can I ask you the counterfactual? Other people speculated about this, you’re in a unique position to opine on it, if you so choose, Daniel. If the president, if the administration had chosen not to release at that moment, the whistleblower complaint and therefore also not release the call record. Do you think we’d be sitting here talking about a concluded impeachment trial at this point?

Dan Goldman:

At this point, absolutely not. There’s certainly the timing of it [crosstalk 00:27:14]-

Preet Bharara:

So speaking as a lawyer, tactically and/or strategically, did the president and his people from their perspective make an error in releasing those two documents?

Dan Goldman:

From a tactical perspective, now that we know what is in the call record, there’s really nothing exculpatory in it. It is only incriminating, and it was the genesis of this months long investigation that ultimately resulted in the president getting impeached for life, and acquitted at a Senate trial.

Preet Bharara:

Did you just say impeached for life? Did Nancy Pelosi tell you to come say that?

Dan Goldman:

She did not tell me to come say that, but I am a great admirer of Nancy Pelosi, and I think that that is something-

Preet Bharara:

An accurate statement.

Dan Goldman:

It is an accurate statement, and even getting a republican senator to vote to convict him based on the evidence.

Preet Bharara:

Can I ask you another question about the lawyering here? So once they released the call record and the whistleblower complaint, obviously there’s lots of other information that you guys then sought. I naively thought at the time, if they’ve already released this stuff which is very damning, how do you in good conscience and with a straight face not let other people cooperate and not release other stuff? So, I expected other stuff to begin flowing, because maybe the president thought that stuff was exculpatory also. What level of surprise did you have that after the release of those two things there was basically a shutdown?

Dan Goldman:

We were surprised and between the release of the call record and the whistleblower complaint and the October 8th letter from the White House Counsel Pat Cipollone, which very definitively stated that the president was not going to participate in the impeachment inquiry, we received the WhatsApp messages from Kurt Volker. Who I think the day after the whistleblower complaint was released publicly resigned and he came in and testified the following Thursday, and the day before his testimony he released what proved to be not all of his WhatsApp messages, but a big traunch of WhatsApp messages. So, you and I are used to you get documents and that is what guides an investigation along these lines.

Preet Bharara:

You get them first, and then you do your talking to the witnesses.

Dan Goldman:

Absolutely, and that is something that is a little bit different about Congress as well, because there is some aspect of testimony that jogs some of the documents loose, and that’s a tactic that is used in Congress that would not necessarily be used in a prosecution. I’m not sure we expected to get full cooperation, but we certainly did not expect to get zero documents after the-

Preet Bharara:

Right, especially after they had released some stuff.

Dan Goldman:

Also as an aside, and we can get to this a little later, it gives the lie to this whole notion that the president had some degree of a legal basis to just defy the subpoenas for documents, because he released the two call records that he thought, rightly or wrongly, were going to help him. So, it can only follow that if there was some document in his possession that he felt like would help him or would exonerate him, he would release it, because he did it.

Preet Bharara:

Wait. Let me see if I get this straight. You don’t think the invocations of privilege are being taken in good faith, Dan Goldman?

Dan Goldman:

I think it became very clear during the Senate trial that the House managers did not believe, and the House did not believe, that the legal assertions, and I won’t even say of privilege because they weren’t really privileges, were not taken in good faith. They seemed to follow on with the president’s directive to obstruct and defy all subpoenas.

Preet Bharara:

Right. So, September 9th was this important inflection point, as you described, and September 25th, these materials are released. What is the first moment when the word impeachment was spoken by people like Nancy Pelosi and Adam Schiff in relation to Ukraine?

Dan Goldman:

It preceded that September 25th, so [crosstalk 00:31:08].

Preet Bharara:

Explain that. That’s a confusing point for a lot of folks. You had a multi year long investigation by Bob Mueller. Nobody wants to proceed to impeachment, even use that word really. Then you had a period of 14 to 16 days. Those documents are not released. In anticipation, people think that it might be serious, and may be evidence of misconduct by the president. Explain how all of a sudden that word was on the lips of people like Nancy Pelosi.

Dan Goldman:

The week before. So, Monday was the 23rd, the speaker made the announcement that the Ukraine matter would be included within the impeachment umbrella on the 24th. The call record and the whistleblower complaint, the call record is released on the 25th, the Whistleblower complaint is released to the public on the 26th. The week before there had been a ton of news reporting about the substance of this complaint and about this phone call between Donald Trump and Volodymyr Zelensky on July 25th. So, it was out there in the public sphere and there was a lot of reporting, so it felt like this was valid and supported, and you had multiple news outlets matching each other. It became very clear, the broad contours of what was going on here.

Dan Goldman:

The critical difference I think from the speaker’s perspective and the democratic caucuses, we’ve got someone now who’s not obstructing a special counsel’s inquiry, which is probably a crime and is bad, but we have someone using the authority of the president and the office of the presidency to pressure a foreign country to give him some sort of personal favor. That is wholly different in kind than obstruction. Obstruction-

PART 1 OF 3 ENDS [00:33:04]

Dan Goldman:

Wholly different in kind than obstruction. Obstruction is bad. Obstruction should be prosecuted. It should be pursued. It was included as an article of impeachment because it is important. Our criminal justice system cannot function, our congressional oversight cannot function if people are obstructing Congress or obstructing justice. But this was different in kind. This was someone in a way, frankly that as we learned had never been done in history, abused the power of his office to solicit for an interference in his own reelection campaign.

Preet Bharara:

So as you sit here now having been a part of that and you look back, are you surprised and shocked about how quickly the mood changed from no impeachment to we got to have an impeachment inquiry? Because I’ll tell you from people from the outside, it seemed very abrupt and sudden.

Dan Goldman:

It was very sudden and there was a pivotal moment when some of the first year representatives all with some degree of military experience or intelligence service experience, I think seven of them wrote an op-ed in the Washington Post that came out on that Monday, the 23rd I believe, where they said, “If these allegations are true and accurate, then the president has betrayed his duty to our country, has betrayed our national security and we would move to support impeachment.”

Dan Goldman:

Because what you got to realize is there are a lot of purple district democratic Congressman who were voted in 2018 in a wave and they’re in Trump districts. And so they’re cautious about moving forward, and to those seven who are all in that category, this was over the line. That was a very critical moment where all of a sudden there’ve been a lot of talk about impeachment and there were different camps within the Democratic party, but it became very clear that the party was unified, that if the allegations were true, that we would move forward with just an impeachment inquiry at the time.

Preet Bharara:

So now let’s jump into the impeachment inquiry since you brought it up. First, could you describe for people, because I think there’s a lot of confusion about this and complaints about the impeachment inquiry process. Could you describe in detail the basement bunker? Are there cobwebs? How big are the rats? Do you have to descend multiple stairwells into the bowels of the earth? So this bunker thing has taken on a life of its own, and Republicans complained that these depositions were taken in a bunker. Am I correct that those depositions are many of them? How many depositions were taken?

Dan Goldman:

We had 17 witnesses in total. So 17.

Preet Bharara:

Am I correct that you were present for all of them?

Dan Goldman:

Yes.

Preet Bharara:

Okay. Describe the bunker.

Dan Goldman:

Well, I have somewhat of an affinity for the bunker because it’s also my office. It is-

Preet Bharara:

Your office is in a bunker?

Dan Goldman:

Yes. The Intelligence Committee, both Democrats and Republicans, are housed in a secured facility because we deal with top secret and very sensitive classified information.

Preet Bharara:

What building?

Dan Goldman:

So it is in the basement of the Capitol. It’s in actually the third floor below the Capitol. I have gone to work there every day for a year as have Democrats-

Preet Bharara:

Windowless office?

Dan Goldman:

All windowless, and you have to key pad the door to get in. There are high protocols in terms of the security. The reason why these depositions were there is that it is a more private place than any other conference room in the Capitol and it is the home to the Intelligence Committee. The speaker had designated Adam Schiff as chairman of the Intelligence Committee to be the leader of the impeachment inquiry. And so that is where it was and no cameras are allowed because it’s classified.

Preet Bharara:

Can I clarify something? So when the Republicans controlled the Intelligence Committee, were the depositions and interviews in connection with investigations always done in the penthouse?

Dan Goldman:

The depositions were done in the exact same place that they were done for this impeachment inquiry under Republican leadership.

Preet Bharara:

Was it called the bunker then?

Dan Goldman:

I don’t believe it ever took on the super secret bunker mantra that it has now.

Preet Bharara:

All right. How big is the room in which the interview … You called them depositions not interviews. There was a court reporter?

Dan Goldman:

Yes. A couple of them were actually interviews. The rest were depositions. There’s always a court reporter for everything-

Preet Bharara:

Stenographer taking down everything verbatim?

Dan Goldman:

For everything taken down verbatim. It was a three committee joint investigation, so the Intelligence Committee, Oversight Committee and Foreign Affairs Committee we’re all participating in the deposition. It was a sizable conference room with a rectangular conference table and then chairs behind it and-

Preet Bharara:

Was it mostly staff or also members? Combination?

Dan Goldman:

It’s a combination. Democratic and Republican staff members were there for all of them, from all the three committees.

Preet Bharara:

You were the lead staffer for the Intelligence Committee?

Dan Goldman:

Generally yeah. I was the lead and I would … I probably took the lead on most of the depositions.

Preet Bharara:

Where’s Chairman Schiff? Was he coming?

Dan Goldman:

Chairman Schiff was at everyone maybe save one I think at the tail end.

Preet Bharara:

Is that nerve-wracking when your boss is there while you’re asking questions sometimes?

Dan Goldman:

It was a little nerve-wracking right at the beginning, mostly just because this was an unusual circumstance and you had a room full of members of Congress and there I am asking these questions-

Preet Bharara:

But just Democrats right? There were just Democrats? It should have been easier.

Dan Goldman:

Democrats and-

Preet Bharara:

Because there was only Democrats.

Dan Goldman:

I think up to 48 Republicans were permitted to be in there and they were always-

Preet Bharara:

They were?

Dan Goldman:

Shocking as it may be, given what you’ve heard, yes. There were 48 Republicans and there were several Republican congressmen who were there for every single one as well.

Preet Bharara:

Like who?

Dan Goldman:

Jim Jordan, Mark Meadows, I think Lee Zeldin was there for the vast majority of them.

Preet Bharara:

Devin Nunez?

Dan Goldman:

Devin Nunez was not there for that many of them. And if he did attend, he would pop in and pop out. He would not stay for very long. But Chairman Schiff was there for the entire duration of every deposition except for sometimes when he stepped out to go vote. And so he sat at the end and I would sit next to him and then there was a co-counsel of mine who would sit next to me. We would often go back and forth with the questioning. The questioning was led by the staff members and members were able generally to ask questions toward the end of it.

Dan Goldman:

Chairman Schiff often would jump in to ask questions at various points, was very engaged and is incredibly impressive as I’m sure you know. And so while it was a little nerve-wracking at first, it became a lot of fun to do it with him. It was almost as if what we were accustomed to as a trial partner. We would talk strategy about how we were going to approach it, what questions to ask, where to focus, how to manage the interview and react to how the witnesses were because you had a wide variety of witnesses. You had some witnesses who came in and were very open and then you had other witnesses in the depositions like Gordon Sondland who did not recall a whole lot of things.

Preet Bharara:

Was the game plan always to do a bunch of interviews in the so called bunker and then immediately decide whether you would proceed with articles of impeachment, or had you contemplated early on this process going on for some time? In other words, I’ve often said, and now I have you here to answer the question, that you folks must have been operating under some clock, not a real legal clock or constitutional clock, but maybe a political clock because the election was coming up. Explain how you were thinking about the clock.

Dan Goldman:

There was no deadline. I know there are a lot of allegations and in the Senate trial that came out over and over that the House needed to get this done by Christmas. That was not the case at all. Frankly, when we started it, we had no idea where it was going to go. We had no idea what we were going to find. We had no idea how long it was going to be. We had no idea that we were going to get no documents. We had no idea that we were, whether we were going to get witnesses or not get witnesses. The way I used to describe it to people is that you would understand it was like being in the middle of a really grueling trial where the evidence changed every day, and that doesn’t happen in trials. When you go into a trial, you generally know-

Preet Bharara:

Trials are hard enough.

Dan Goldman:

What the evidence is and you have a sense of what a witness will say.

Preet Bharara:

But be careful because this was not the trial, this was the grand jury proceeding.

Dan Goldman:

Right, and I only meant that in the sense of that was how it felt just in terms of every single day, there were new revelations and it was coming at you fast and furious. Meanwhile, we’re preparing for depositions for the next day. Those Kurt Volker text messages became the nexus for the investigation that really guided us very much as we went forward. It was critical, as Chairman Schiff has been very open about, it was very critical that these depositions were done in closed doors because as you know well Preet, you don’t want these witnesses to match up their stories with each other, to see what someone said and then be able to react to it or to tailor their testimony.

Dan Goldman:

We were truly in a fact finding mode. We did not know what went on, and we were trying to figure that out. The best way to do that is to segregate witnesses and have them come in for closed depositions and not allow their agency counsel, who could then play that coordinating role for all of the witnesses, to be present because we were partially investigating these agencies. To have the target of the investigation sitting there runs counter to all best practices for investigations.

Preet Bharara:

How much sleep were you getting during this time period when the depositions were taking place?

Dan Goldman:

Five or six hours a night.

Preet Bharara:

That’s a lot.

Dan Goldman:

Yeah.

Preet Bharara:

I expected less times. There’s have to be [crosstalk 00:42:36].

Dan Goldman:

Sometimes four. Yeah. It was an all day thing. Remember, these depositions were 10 hours and we have a terrific staff. All of the three committees were all pitching in.

Preet Bharara:

We should mention another great member of your staff.

Dan Goldman:

Dan Noble-

Preet Bharara:

Dan Noble or-

Dan Goldman:

Dan Noble, who was another former SDNY and Dan and there’s another former AOSA from the district of Maryland, Nick Mitchell. And there were folks from the Foreign Affairs Committee and the Oversight Committee. Everybody was pitching in together to build out the outlines for the questions. And then the night before, we’d find tune them based on what we had heard. But remember, we were doing depositions day after day after day-

Preet Bharara:

Oh I remember.

Dan Goldman:

It was a breakneck pace, and part of that was we expected to get some resistance. I don’t think we ever anticipated getting as much resistance from the administration as we ultimately got, but we certainly expected to get resistance.

Preet Bharara:

Can we stop there for a second? On the one hand you could say you weren’t expecting to get so much resistance, but in the face of the letter from Pat Cipollone directing everyone not to cooperate, weren’t you also surprised in some ways about how much cooperation you did get from people who were still in the administration who came forward and basically honored the subpoena but defied what seemed to be a directive from the White House Counsel?

Dan Goldman:

Incredibly impressed with those individuals who I hope will go down in history as true American heroes because that letter came after Kurt Volker had testified, but I believe it was before Masha Yovanovitch, who was really the first current employee of the executive branch to come in and testify. She really paved the way because we had understood from George Kent’s lawyer that if Masha Yovanovitch testified that that was going to allow for George Kent to have a much easier time to testify. Fiona Hill was a former employee at that time, so she was in slightly different situation. And at that point, the administration said that under the current circumstances, which were letter requests, that these people could not testify.

Dan Goldman:

But what we did, which I don’t know how much the public knows about it, is that we waited until the morning of the testimony to issue the subpoenas. The first time we did this we did it because we expected that … We had no idea what to expect in terms of the resistance to the subpoenas, but the only real way to stop someone from testifying pursuant to a subpoena was to get a court order to do so and so-

Preet Bharara:

Did you expect the White House to try to do that?

Dan Goldman:

We were prepared for that possibility.

Preet Bharara:

Why didn’t they?

Dan Goldman:

I don’t know. You’ll have to get them on the pod to ask them the question.

Preet Bharara:

They’re going to be on next. Coming up later, Pat Cipollone. I would love to have him on, but were there any circumstances in which, you don’t have to give details that are not appropriate to give, where you or someone else got on the phone with a requested witness or their counsel and tried to make a pitch as to why they should come, or some came and some didn’t without cajoling?

Dan Goldman:

I wouldn’t use the word cajoling, but we were in regular communication. All of these witnesses had their own personal counsel, very capable and able counsel who are very experienced in, mostly in Washington but elsewhere as well. We were in regular communication with them and they were relaying the position that their client was taking, which was, for the most part, at least in the initial phase, if they receive a subpoena from Congress, they’re going to abide by the subpoena and that’s ultimately what happened.

Dan Goldman:

And if I could just say one other thing about these witnesses, which you will I think appreciate Preet, these are not your typical cooperating witnesses that we may have been used to prosecuting cases. These were some of the most impressive individuals I’ve ever come across. They were nonpartisan. They really just told you the balls and the strikes. They told you what they saw. They told you the facts. And the best part for us and the real way that we were only able to get to do this investigation, I truly believe, is that many of these witnesses took copious amounts of contemporaneous notes. It was like a prosecutor’s dream to have a witness have all these notes.

Dan Goldman:

Bill Taylor had multiple different notepads depending on where he was, whether he was … In the office, he had one notepad, whether he was out of the office, he had another notepad. Everyone was taking notes and they were, for the most part, other than … Well, for the most part, they were able to review their own notes before they testified and they-

Preet Bharara:

They still had them in their possession?

Dan Goldman:

Well they were still current employees and so they had them in their possession.

Preet Bharara:

Were they taking notes because it was their habit to always take notes-

Dan Goldman:

Yes.

Preet Bharara:

No matter what or because the circumstances were peculiar to them and they wanted to have notes?

Dan Goldman:

So for the most part, it’s because that is what they’re trained to do. They just take notes of everything so they remember things properly, not necessarily for testimony, but just down the road. There were a few occasions that we learned about that were very unique and special. George Kent in particular, I think he wrote four memos to file. Bill Taylor wrote a very, what became a very well known cable on August 29th, where he wrote to Secretary Pompeo in first-person cable, the only time he ever did that in his entire 50 year career where he expressed his strong disagreement with the hold on security aid.

Dan Goldman:

So there were a few things that were very particular to this investigation, but the reason why it was valuable to us and part of the reason why a lot of the hearsay arguments that were parroted so much by the president and his defenders I think incorrectly fall by the wayside because these people are testifying to their contemporaneous notes. Now maybe technically it is hearsay, but in terms of reliability, it was about as reliable as you can get.

Preet Bharara:

Can I ask you a question that would be objectionable in court but it’s perfectly permissible in the court of the podcast?

Dan Goldman:

And Congress, because everything’s permissible in Congress.

Preet Bharara:

We’ll get to that also. How big a liar is Gordon Sondland?

Dan Goldman:

So I’m not going to characterize him as a liar to not a liar.

Preet Bharara:

You can object. It will be overruled.

Dan Goldman:

I think that Gordon Sondland was more of what we encountered with witnesses who played some role in a scheme. And I’m not saying that he would have been guilty in this game or not guilty, but he had a very central role. I think what Gordon Sondland tried to do, and he is the best example for why closed depositions were essential in this case, is he tried to come in and tow a very, very fine line, say that he didn’t remember a lot of things, provide a little bit but not that much. And what then happened is you had a parade of witnesses, Bill Taylor that followed him, Tim Morrison that followed him, that had contemporaneous notes of conversations they had with Gordon Sondland.

Dan Goldman:

David Holmes, who ultimately came in at the tail end. They had contemporaneous notes and very specific recollections, and I think very quickly Gordon Sondland realized that he was not going to be able to get away with this because the weight of the evidence really contradicted what his testimony was. So when you see his deposition testimony as compared to his public testimony, it was night and day.

Preet Bharara:

Were there moments when you were in the bunker, we’ll just call it that ironically, where there was testimony that you heard that blew your mind that was eye-popping in the moment and that the rest of us learned about later? Are there some examples of that?

Dan Goldman:

The best example of that was the day that Bill Taylor testified and gave his deposition. We didn’t know what to expect from him. We didn’t really know what he was going to say.

Preet Bharara:

But just so people understand, unlike in the public testimony, when the witness shows up with a statement and then reads it and then takes questions, when you did the original depositions, you’re operating from a clean slate?

Dan Goldman:

Right. So he came in I think 15 minutes before his testimony. His lawyers gave the staff a copy of his opening statement so that it could be copied and given to the people that were in the deposition.

Dan Goldman:

And that deposition, I would say there were 75 members of Congress there, fairly close to it. Maybe Sondland was a little bit more at the time that he came in, but Bill Taylor, there were a lot of people, members of Congress.

Preet Bharara:

Republicans and Democrats?

Dan Goldman:

Republicans and Democrats.

Preet Bharara:

All three committees?

Dan Goldman:

All three committees.

Preet Bharara:

Okay.

Dan Goldman:

And so there were a lot, and the opening statements were distributed and he read it and you’ve now seen Bill Taylor and he has this incredibly powerful commanding, beautiful voice.

Preet Bharara:

He would be a great podcaster.

Dan Goldman:

He would be a great podcaster.

Preet Bharara:

Very authoritative, I think he would be.

Dan Goldman:

And he read his opening statement and it took about 40 minutes and the gasps and the oohs and aahs that were coming from the members as they were following along and he was reading it, that was I think the moment during the entire investigation when I certainly said to myself, “Oh my. There is really something wrong here.” This is perhaps bigger than we even expected it to be.

Preet Bharara:

What about one of the witnesses who’s not as well known, but gave some of the most interesting testimony that Adam Schiff referred to throughout the proceedings and the trial? When David Holmes talked about the conversation that he overheard between Sondland and the president in the Kiev restaurant, did you hear about that in the deposition first also?

Dan Goldman:

No, and that was an interesting-

Preet Bharara:

You did not? Because that was learned later?

Dan Goldman:

Yes. So Ambassador Taylor did not remember that conversation.

Preet Bharara:

He didn’t remember the conversation in which Holmes told Bill Taylor about overhearing the phone conversation between Sondland and Trump?

Dan Goldman:

Correct. And so what happened was as these depositions were starting to be released, another thing that’s worth pointing out is that these closed deposition transcripts were released in full with [crosstalk 00:52:44]-

Preet Bharara:

They were?

Dan Goldman:

Yes. As shocking as that is, really only redacting for … And the only questions and the only things that were redacted and the only things in this entire investigation that were really off limits, as directed by Chairman Schiff, were things that related to the identity of the whistleblower. Republicans asked any question they wanted. They had equal time. A lot of hay is being made about this. This is completely bogus. It was just about the identity of the whistleblower. And of course the whistleblower’s information became obsolete as we had witness after witness with firsthand knowledge of the scheme come in and explain things that they were present for that the whistleblower had only heard about.

Dan Goldman:

But in any event, Bill Taylor had not remembered hearing from David Holmes. A summary of the conversation that David Holmes had with Ambassador Gordon Sondland that followed him overhearing the conversation. And so it was only as these transcripts were being released that David Holmes said, “Well, wait a minute. Gordon Sondland’s deposition,” or opening statement, I’m not sure which, “Didn’t talk about that conversation he had with Trump on July 26th and I didn’t see it in Bill Taylor’s. So this seems pretty relevant to me. I ought to let them know.”

Dan Goldman:

So what happened was right before Ambassador Taylor came back the second time in advance of his public testimony, David Holmes told Ambassador Taylor about that conversation. And then Ambassador Taylor, through his attorneys, told both the Democrat and the Republican staff members about this conversation. And actually then the public learned about it for the first time during Bill Taylor’s public testimony, but we had already reached out to David Holmes’ attorney to set him up to come a couple of days after that to be deposed.

Preet Bharara:

Give us an example of a, if you can, of a Republican Congressman with whom you became friendly and is a lovely person.

Dan Goldman:

So I have a special affinity for Mark Meadows. He is a very nice man and-

Preet Bharara:

Some of our listeners may not believe that.

Dan Goldman:

No. He’s a good guy and I disagree with his politics. I disagree with the way that he described the facts in this case, but he’s a well-meaning person. I ended up getting to know him a little bit. There were others as well who you spend enough time with and you talk to at breaks.

Preet Bharara:

Are there some deep animosities personally? You don’t have to mention what they are, but are there some?

Dan Goldman:

There are some.

Preet Bharara:

There are some. Now can mention what they are?

Dan Goldman:

Me personally?

Preet Bharara:

No, between members on the opposite sides of the aisle.

Dan Goldman:

I will leave it that there appear to be some things that are not left at the door of the super secret bunker.

Preet Bharara:

If I say names, will you blink? No, you can do that because the audience will not know if you’re … Okay, out of courtesy for your continuing [crosstalk 00:22:37]-

Dan Goldman:

But I do think your listeners will appreciate learning about day that the super secret bunker was stormed.

Preet Bharara:

So I wanted … Yes. I’ve been dying to hear about it from your perspective. So I’ll just set it up. There’s a super secret bunker as we’ve determined. It’s a classified safe space. A bunch of Republican members of the House who were not on any of those committees were protesting the fact that these depositions were taking place in that safe space below the surface level of the Capitol Building. Where were you when that happened and what happened?

Dan Goldman:

So we were getting ready for the deposition of Laura Cooper from the Department of Defense and we knew that there was going to be a big press conference outside of the skiff, outside of where the depositions were being taking place. And what happened is that we were sitting at the table, getting ready for the deposition and all of a sudden, the skiff was literally stormed by a slew of Republican Congressmen, and who all of a sudden storm into the conference room, many of whom kept their cell phones and other electronics on them, which is not permitted in a classified space-

Preet Bharara:

You’re supposed to leave them outside in every instance correct?

Dan Goldman:

In every instance. You cannot bring any electronics, Fitbits, any Bluetooth things, any phones for sure, any computers that are not screened. It is a very secure place and it’s a risk. Congressional members are targets of foreign governments to either tap their phones or in some way infiltrate, and if they get access to classified information, that could be a huge counter-intelligence risk. So a bunch, I don’t know how many, I’d say 30 or so, storm into the conference room in there.

Preet Bharara:

So what do you do?

Dan Goldman:

So we’re sitting there and I’m sitting next to Chairman Schiff and we’re talking, “What are we going to do here?” And some of them start hooting and hollering and yelling. It was-

Preet Bharara:

What are they hooting? What?

Dan Goldman:

I don’t know. They were yelling-

Preet Bharara:

Well, there were cameras there right?

Dan Goldman:

No. They were literally yelling like, “All right,” I can’t remember the … “Let’s go. Here we are. Now this is where it all happens. Let’s get on with it,” et cetera. And so as it became a little bit rowdier, Chairman Schiff left and the staff followed and we went into his office, and-

Preet Bharara:

Was there actual pizza?

Dan Goldman:

We’ll get to that.

Preet Bharara:

Okay.

Dan Goldman:

So this was I think around 10:00 o’clock in the morning, and I think I went in and asked for Jim Jordan and Mark Meadows to come and speak with Chairman Schiff. They had been there all along. They understood that there had been a ruling by the parliamentarian that members of the other committees could not be there because Matt Gates, who was the instigator of this whole thing, had tried to sit in on a previous deposition and was told to leave.

Dan Goldman:

So we brought them in, and I think Devin Nunez was there as well. We were trying to figure out what can we do? You understand what the ruling is? Obviously they can’t be there, and they were like, “Look, there’s not much … We don’t control them. There’s not much that we can do.” And so we decided, or Chairman Schiff decided, that we’ll just wait it out and see what happens.

Dan Goldman:

So we go about our business and they remain in the conference room and so now the hours are ticking by and once 12:00 comes around, all of a sudden there’s an order of 30 pizzas that arrive in the skiff because everyone’s just sitting in there-

Preet Bharara:

Dominoes?

Dan Goldman:

It’s a sit-in. I think Jamie Raskin called it the … He had a very funny line about, it’s a sit-in for rights that they already had. But in any event, they were sitting there and they brought in pizzas and I went and had some lunch.

Preet Bharara:

You had pizza?

Dan Goldman:

I had a couple of slices of pizza.

Preet Bharara:

You had some of the invading pizza?

Dan Goldman:

Yeah. It was good pizza.

Preet Bharara:

And bipartisan. Thin crust?

Dan Goldman:

No. It was actually not that good as a New Yorker.

Preet Bharara:

I didn’t know you ate carbs during a subpoena.

Dan Goldman:

So anyway, and we waited and votes came 1:30 or 2:00, and everyone went up to vote and that was the end of it and we did the deposition of Laura Cooper after that.

Preet Bharara:

Did that leave any bad blood or was that just seen as a stunt and everyone moved on?

Dan Goldman:

I think for the most part it was seen as a stunt. It was a messaging thing and I don’t think it was a surprise that it followed, came the day after there was a meeting at the White House, the president and some of his staunch allies where reports were that he was encouraging them to defend him harder and more strongly and this followed.

Preet Bharara:

Given how things turned out at the end of the trial, do you and the committee you think have any regrets that you didn’t subpoena, for example, John Bolton and pursue a fight in the courts to get him to come testify?

Dan Goldman:

Not one bit.

Preet Bharara:

Really? Explain that.

Dan Goldman:

And I think that this is misunderstood by the public. John Bolton’s attorney represented John Bolton’s deputy, who when subpoenaed by the committee, filed a lawsuit, which is a lawsuit that was not a procedurally legitimate lawsuit. Whatever the merits were, you cannot as a witness who’s been subpoenaed by Congress, you cannot sue Congress to avoid testifying. It’s just not something that you are permitted to do. And when asked directly, and I had this conversation with John Bolton’s lawyer, and I said, “What is your client, Mr. Bolton, going to do if he receives a subpoena?” He said he would join the lawsuit of his deputy.

Dan Goldman:

At the same time, the same issue had been percolating and gone through months of litigation in the Don McGahn case. Then the judge in that case had said there was going to be an opinion coming out very soon after that. It was the clear view of Chairman Schiff and the others who were running the investigation that we were not going to play rope-a-dope, as Chairman Schiff says, and get tied up in the courts. That even if we had 100% chance of winning, to go through three layers at a minimum of litigation and court rulings would take months.

Preet Bharara:

So you were thinking about the clock, in that regard at least?

Dan Goldman:

Well, the allegations were that the president was trying to solicit foreign interference in the election that is occurring in November of 2020. If our investigation were tied up in the courts until after November 2020, which would have been the case if we had litigated it all, then the president wins because the object of his scheme has already come and gone before Congress can do anything to stop him.

Preet Bharara:

So in your mind, not a close question, clearly did the right thing?

Dan Goldman:

Not a close question at all.

Preet Bharara:

Will you subpoena him now, John Bolton?

Dan Goldman:

I don’t know. I don’t know what the answer is to that. I think-

Preet Bharara:

Is it on the table?

Dan Goldman:

Well, it’s publicly out on the table, which means that of course it’s on the table. But I suspect that there will be some resolution to that over the next couple of weeks.

Preet Bharara:

All right. So we get to the public testimony, which is what everyone like me saw, other than getting the transcripts of the depositions. You only had 45 minutes per witness after having spent hours and hours with them. Just explain to people the craft of figuring out what the hell are you going to do when you have a tiny fraction of the time, which is the thing that the public is going to see and you’ve already said that public sentiment and public attention is what gives the investigation oxygen and propriety. How’d you pick what you were going to ask and go about that?

Dan Goldman:

It was difficult. The way it ended up working is we had a little bit of time before the first hearing and I think we did three moots at a minimum, maybe three or four moots-

Preet Bharara:

Meaning you had someone play the part of a witness?

Dan Goldman:

Right. The first hearing was Bill Taylor and George Kent, and so at various points we had different people playing those two witnesses.

Preet Bharara:

Was it always a member of the staff playing a witness or did you have other member?

Dan Goldman:

It was always staff. Different committees chimed in, pitched in I should say, not chimed in, and so we rotated it around, which was helpful because you want to get as many different ways that a witness might answer a question in order to follow up. But where we ended up was very far from where we started. The staff that was on all of the committees was … It was a full team effort and the input from everyone listening to it was incredibly valuable.

Dan Goldman:

I was, as a former prosecutor, was much more generally, I have a predilection to be focused on the facts and then the weeds and there were other staff members who have a broader perspective who were able to pull me out of the weeds a little bit, and that was important. We spend a lot of time on that first hearing and it was almost as if once we got it in a good place for the first hearing, we had our formula and then we were able to adapt for each subsequent hearing.

Preet Bharara:

What was interesting to me in watching is that obviously, as we’ve been discussing, a decided difference between what you would do in a court of law when you’re trying to prove a case in a particular way with a particular statute versus what you were doing in a public hearing to make people understand the import of all this.

Preet Bharara:

So for example, I was struck by how you began with Marie Yovanovitch and you chewed up precious minutes, which I think was worthwhile, not going at the particular facts of maybe what would end up being the thrust of the impeachment articles, but something peripheral to that, but set the stage and showed the context. And that was that she was basically terminated from her position at the same time that she was hosting a remembrance for a very noted special anti-corruption fighter in Ukraine, giving the lie to the idea that the firing of Marie Yovanovitch was in pursuit of anti-corruption efforts. How conscious was that decision?

Dan Goldman:

It was very conscious. When she told that story during her deposition, it was incredibly moving to listen to her narrative of getting this call from Washington that, “You need to come home on the next plane and your security-”

PART 2 OF 3 ENDS [01:06:04]

Dan Goldman:

From Washington that you need to come home on the next plane and your security is at risk and then asking for more information and getting another call later at 1:00, and it was really toward the end of that story that we even understood that she was actually hosting an anticorruption event. In many respects, that anecdote, which we started the report with encapsulated the whole thing, and it wasn’t directly related to the July 25th call, but the fact that this anticorruption champion who was hosting an anticorruption event at the US embassy in Ukraine got an urgent phone call basically that she was getting removed from her position.

Dan Goldman:

As we subsequently learned, because Rudy Giuliani said it publicly, she was removed so that she would get out of the way to allow for these corrupt investigations to occur. We felt like it was a powerful moment that was worth putting as an analogy to the broader fact pattern.

Preet Bharara:

What about you personally? You do these depositions behind closed doors in the bunker, far away from lights and cameras, and you’re no stranger to big, prominent, important cases during your time at SDNY, but this is different. You’re now the main questioner from staff. The whole country is watching. There is potentially arguably a presidency hanging in the balance. There’s a constitutional crisis of sorts. How does it feel for you to be in that kind of spotlight?

Dan Goldman:

I just didn’t think about any of those things, honestly. I think what I did personally was I went back to my roots. I went back to my experience. I went back to what I was comfortable doing, and it was certainly nerve-racking the first time. Once you start asking the questions, it just felt like the hundreds of other times that I’ve asked witnesses questions. Yes, it’s on TV being shown around the world and around the country, but the room itself was rather large and somewhat intimidating, but you don’t necessarily recognize that you’re on TV all over the place. It was really just a function of once it got started, you just get in the zone and you’re just asking the questions of the witnesses.

Dan Goldman:

The advantage we had of course is that we had the testimony for most of them. Gordon Sondland changed. Kurt Volker changed pretty significantly. Laura Cooper added some stuff. Fiona Hill added some stuff. They were adding stuff, and so we had to respond to it on the fly. For the most part, we knew what we wanted to highlight and then it was really just a function of trying to allow the witnesses to bring that out to the public.

Preet Bharara:

Here’s what I said about that at the time about you on the podcast and tell me if it was fair or not, because I gave you great credit for all of what you did publicly and clearly behind the scenes in those depositions.

Dan Goldman:

I appreciate that.

Preet Bharara:

I remember thinking among the things that Dan Goldman has done before, putting aside the lights and the camera and the amount of public attention, doing a 45-minute basically direct examination of a witness where there were no rules of evidence that apply where you have the floor and you have the benefit of having done a nine-hour deposition of that person before, it’s not the hardest thing you’ve ever done.

Dan Goldman:

Right. The hard part was making sure that we got the most important stuff out. You put it right. Narrowing nine hours into 45 minutes was the hard part. Once we had figured out, no, it felt like stuff that you or I had done many, many times.

Preet Bharara:

You do this for a few weeks and then, boom-

Dan Goldman:

Eight days.

Preet Bharara:

… articles of impeachment, pretty quick, too quick.

Dan Goldman:

No, I don’t think so. What you have to realize is by the time that the transcripts started to get released, which I think may have been week three or four after our first deposition, the Department of Justice and Office of Legal Counsel, and this gets a little technical, but they had come up with a new rationale to block witnesses from testifying. Whereas a lot of these witnesses in very similarly situated were coming in to testify for the first several weeks, the Department of Justice fabricated, I would say because I really do believe there is no merit to this, but they created a new rationale to block the witnesses from coming. We not only had the high profile ones like John Bolton and Mick Mulvaney and a couple of other very senior people who didn’t come because of absolute immunity, but they created this bogus rationale that if you are not allowed to have agency counsel in the depositions then it’s unconstitutional.

Preet Bharara:

You just want to cut it short and just put up.

Dan Goldman:

We had deposed 17 people and there was not a steady stream of additional witnesses that we left on the cutting room floor. We weren’t getting any documents. The investigation was pretty much done to the extent that we could have gotten anything.

Preet Bharara:

In the environment of this political proceeding, because if you had been conducting this case as a federal prosecutor in your old role, you wouldn’t have had the same clock and concern, although maybe you would’ve if there was imminent harm, you don’t always investigate a case to death. I guess that happens sometimes too. Do you understand why some people find it odd that having said over and over again to justify and explain this hastened process getting to the articles of impeachment in which people said overwhelming evidence, overwhelming evidence, which I tend to agree with, that it became a little bit odd later to say but we must have more witnesses. We must have more documents at the trial to make our case properly.

Dan Goldman:

There were two arguments that fall into that category. There’s the one you just mentioned, and then there’s this notion of this is so urgent, we need to move quickly, and then the speaker didn’t convey the articles for a month or so or the trial didn’t start until a month after the articles were. If it’s so urgent, why did they delay? It’s a similar argument.

Preet Bharara:

What’s the answer?

Dan Goldman:

There are two answers. One is we had enough evidence to convict because the 17 witnesses told a remarkably consistent story, but there’s so much more to know and to learn about. If you are wondering whether that is the case or not, you need only ask yourself why, if it’s all out there, would the President go to such great lengths to prevent additional witnesses and additional documents? There’s enough to convict. There is enough evidence. There’s overwhelming evidence that the allegations that we allege are proved, and those allegations I think very clearly set forth impeachable offenses, but there’s a lot more out there. It’s not just that the Senate needs to know, the American public needs to understand.

Preet Bharara:

It’s a different … It gets to the heart of some of it, which is that you have a role in trying to bring forth and develop evidence at a Senate trial for the purposes of having senators decide on the guilt or not guilt of the President, but then separately from that, a public function informing everyone as to what the President may have done.

Dan Goldman:

That takes on I think two aspects. One is just the public has a right to know whether the President of the United States is engaging in misconduct, but the other thing is more of a political calculus, which is generally the public is slightly in favor of impeachment, only very slightly. If John Bolton testifies and says, “Oh, the President told me,” as reported to be in his book, “the President told me that I was withholding the aid in order to pressure Ukraine to do these investigations.” That’s different in kind from most of the evidence that we got. It is consistent with the evidence, but it is more direct, it is more powerful, and it is more meaningful. If you want to sway the public, having John Bolton say that and testify publicly or privately that that is the case might move additional people. They have a right to know, but it also might have influenced the outcome of the trial.

Preet Bharara:

Here’s another question that people have, and I’ve thought about this from the perspective of our old jobs. How do you decide on what the articles of impeachment should be? Why just two? How come it was so broad-based? I think I have some sense of what you might say. Abuse of power, obstruction of Congress. To the extent that there was a case to be made as your boss made this argument many times on the floor of bribery or extortion or some other identifiable crime that we understand to be a crime. I understand why you might not want to pick one or the other, but in our old jobs, you probably would’ve had two catchall counts in indictment and then you would add extortion, bribery, etc. Sometimes we would argue it’s good to give the jury a choice because they can reach some compromise and they can acquit on some and convict on others. That’s the thinking that goes on in prosecutor’s offices. What was the thinking here?

Dan Goldman:

Well, I don’t know all of the thinking generally. I can relay to you what my perspective was from my seat, which is that you’re absolutely right. If this were a criminal trial, we would have charged or alleged abuse of power, bribery, extortion, on down the list.

Preet Bharara:

Probably also you would have added some obstruction of justice counts from the Mueller Report. Right?

Dan Goldman:

If this were a criminal court, probably. I think generally, when you are charging the defendant, you charge the defendant with all crimes that you feel like you can prove beyond a reasonable doubt. The difference here is there are political consequences and there’s a political fallout to all of this. It doesn’t just end with the verdict. Whereas, with a prosecution, for the most part, it ends with the verdict and so you have to take into consideration where everybody else stands.

Dan Goldman:

I think the general answer to your question is the Ukraine conduct was so different in kind from really anything that was included in the Mueller Report, which found that the President and the Trump campaign happily received foreign interference and utilized it but did not conspire to obtain it. Whereas here, we have … as a candidate without the awesome powers of the presidency. Whereas here, you have someone with the awesome powers of the presidency using those powers to coerce a foreign ally and ratchet up the pressure in order to get these political investigations for his personal benefit. It felt like it jeopardized national security. It jeopardized our credibility. It jeopardized the elections. There was any host of real viable, important dangers.

Dan Goldman:

I think the theory was you want a consistent and uniform theme that you can not only marshal to the Senate, but there are really two juries. There was the Senate as jurors, but there’s the American public. It was important for the American public to understand the worst conduct, what it was, and to understand it as well as possible. If you start throwing in the kitchen sink, it muddies the message. It allows for a creative either lawyer or advocate on the other side to twist things or to focus on what is a personal benefit under the bribery statute, under the McDonnell case. You get into all sorts of very weedy technicalities.

Dan Goldman:

The theory is that abuse of power is the highest crime. It was the founding of the constitution. It incorporated elements of bribery, elements of extortion, which were not statutory crimes at the time. That seems to be the most serious, what we would call the top charge in prosecutor parlance, the most serious allegation. That’s what you go with. You prove that. This whole notion that, oh, you need to have a statutory crime, this was a fabrication essentially of Alan Dershowitz-

Preet Bharara:

We’re not going to spend any time on that.

Dan Goldman:

… that just doesn’t pass the last test.

Preet Bharara:

We have too much else to talk about and I think we’ve sold reasonable people on the argument. He walked back away from it as well. There’s this period of time where, as you already mentioned, we weren’t clear on whether or not the articles of impeachment would be transmitted or conveyed to the Senate. I don’t think it was more than a blip. People like me and others whose part-time job it is to opine on these things speculated as to strategy and everything else but ultimately, in fairly short order after the New Year, the articles were conveyed and there’s going to be a trial. Let me ask you a couple of personal questions about that.

Preet Bharara:

First one, did you maintain, even though a Senate trial is different from a courtroom trial, did you maintain any of the superstitions that we used to follow in the southern district among them? Did you ever get a haircut during the trial?

Dan Goldman:

I did not get a haircut during the trial. I did get a haircut before the trial though, which is also a superstition.

Preet Bharara:

Can you explain the haircut?

Dan Goldman:

There is such a thing called the trial haircut where you get a haircut before the trial and then you do not cut your hair throughout the remainder of the trial, which can be difficult when you start to have a six-month trial.

Preet Bharara:

If the trial is long, it’s very difficult.

Dan Goldman:

I think those people get a special dispensation.

Preet Bharara:

You also don’t want to show up with everyone wondering, oh, did Dan get a haircut? You want them to focus on the fact. You did not get a haircut.

Dan Goldman:

I did not get a haircut.

Preet Bharara:

One thing that people found compelling, at least I found compelling and tell me if this was an orchestrated plan in advance, you have all this discussion all day long. I wouldn’t say testimony because there was no testimony from people other than lawyers, but then chairman shifted something I thought that was very compelling. Day, after day, after day, he would close out the session by giving a contextual argument as to why this was important and not just arguing the facts and the constitutional principles but also talking about how important it was to the country. What was the thinking behind ending every day with that?

Dan Goldman:

Well, you’ll also remember during the public hearings in the House Intelligence Committee that he also gave a closing statement in all of those hearings, which one after the next, after the next were better than the previous one. I’m sure you were watching. I was sitting there. Both the hearings and the trial at some point just feeling like I was a spectator to watching a master at work. You and I have given closing arguments. We’ve done rebuttals. We’ve done a lot of this stuff, but Adam Schiff is a unique talent. The way that he is able to parse through to find a theme and amplify a theme, he did it in the House hearings and he did it in the Senate trial, the thinking I think was twofold. One is that the Senate in particular had been bombarded with the facts. I think even you were a little bit skeptical as to why the House managers needed 24 hours or we took I think 21 to present the case.

Preet Bharara:

I did. I criticized that. Why did you need so much time?

Dan Goldman:

The reason is we obviously didn’t need that much time if we were speaking to a captive jury that was sitting there, forced to sit there and listened to everything, and then we would have the benefit of a closing argument to summarize it.

Preet Bharara:

I see. People are tuning in and out.

Dan Goldman:

People are popping in, popping out.

Preet Bharara:

It’s like cable television when they cover a story all day. It’s like if you’re just joining us, here’s what’s going on.

Dan Goldman:

That’s part of it. The other part is that we wanted to tell the story in multiple different ways. Chairman Schiff had an introduction of about two hours’ long, which was a short summary of the case, relatively short. We did a factual narrative or a chronological argument, I should say, explaining how the story unfolded and at every step of the way, how it got, as Gordon Sondland said, more insidious. That was another way of doing it. Then, we attacked the analysis, the argument where why was this an abuse of power and what were the aspects of it that were an abuse of power? Most importantly, we took on a lot of the defenses in the context of making the argument. We had the concluding aspect of it.

Dan Goldman:

It was telling the same story in multiple different ways through multiple different means. Importantly, it would never have worked to just get up there and speak for 21 hours. We spent hundreds of hours preparing this to intersperse the witness statements and the documents and the exhibits so that it was not just one person or seven people up there talking over and over and over.

Preet Bharara:

From my view and other people on the other side of the aisle who didn’t like what Adam Schiff was saying and they attacked him personally, and I thought he maintained really an exquisite demeanor throughout all of it because he took a lot of incoming, but what’s great about what he did was it was a combination of both I think fine rhetoric and eloquence, which by itself can be empty, combined with a complete 100% encyclopedic knowledge of the facts. It showed that he came to every deposition, and it showed he had reread the transcripts in all likelihood. When the other side would make an argument, including by the way outside of the chamber, when he would come to a press microphone after the President’s lawyers had said a bunch of stuff during a break, without notes, in a very comfortable way, he would tick off all the reasons why those things were incorrect with citations to the record. Often in Congress, you find people who are all rhetoric, and some people are very wonky and they can’t combine the two. That’s what I thought made him especially effective.

Dan Goldman:

I think that’s right. I think that part of the reason he takes so much incoming is frankly just because he’s so good, and he’s incredibly smart, as was clear, but he’s incredibly hardworking. He’s a man of incredible integrity.

Preet Bharara:

You got the raise. It’s coming.

Dan Goldman:

No, I can’t say enough. I worked very closely with him for the last year. I’ll put it this way. I think it bothers me a lot more when he takes the incoming than it bothers him.

Preet Bharara:

Well, you’re a good staff member in that way and a good colleague. Did you ever really think there might be a moment where Chief Justice John Roberts would take on some role beyond figurehead?

Dan Goldman:

Yes, I thought there would be at some point that something would be presented to him. There was one example that we teed up just to make him aware, which was there was this issue that we were anticipating of the White House trying to admit documents in their defense that had been concealed from us even though they were subject to subpoena, using the obstruction as both a shield but also as a sword. We weren’t sure whether they were going to try to do that. There was no real mechanism as there is in court to limit it so we wanted to get out in front of it and we teed it up through the parliamentarian just to say this might come up, just so he’s prepared. I think he was prepared to respond if that came about. For the most part, I think that there’s very little role for the Chief Justice to play in an impeachment trial because the Senate can overrule everything.

Preet Bharara:

Right, but he could have chosen to use some of the prestige of his position even though he didn’t have the power in that spot to make rulings, but then you risk the loss of prestige when you get overruled. I think now we’ve got-

Dan Goldman:

Not only the loss of prestige. It’s that whatever ruling he was going to make in what is as much of a political animal as a Senate trial, impeachment trial is, was going to be perceived by slightly more or slightly less than half the people as partisan. That is certainly a risk that no chief justice would want to take, is to be perceived as partisan.

Preet Bharara:

Some people were very frustrated about the result. People thought there would be someone other than Mitt Romney who might vote to convict. I think there’s some people who are worried that now the President having been acquitted is more emboldened. You see from the last week that he has removed some people from duty at the White House, including Lieutenant Colonel Vindman, including his twin brother, also Gordon Sondland. He didn’t learn anything from this. Explain to people from your perspective why this whole process and the way it was done, given the ultimate result which was expected, did more good for the country than harm.

Dan Goldman:

Well, the President, as the speaker says, is impeached for life, and that is something that will never be removed from his record in history. As we now approach the next few months, it is just very important for Congress to uphold its duty as a separate and coequal branch of government to provide a check and a balance on the President. You cannot be so result-oriented that you allow for what is impeachable misconduct to occur but because the other side has decided that they’re better off politically by remaining tight and close to the President. It’s why this whole article about this being the first impeachment is partisan is somewhat circular. You don’t just set out when you start an impeachment investigation to make it a partisan investigation. At some point, as what happened with Richard Nixon, the switch flips and all of a sudden people who were very closely aligned with Richard Nixon then went to him and said, “You need to resign. This is bad conduct.”

Dan Goldman:

There has to still be some point, and I think that’s part of the reason why someone like John Bolton would have been such an important witness. There’s partly a reason why at some point everybody says enough is enough. Ultimately, the Senate Republicans decided that enough was not enough in this case, but they will have to answer to their electorate for why they didn’t call witnesses, why they didn’t ask for documents, why they voted to acquit. Every day, the more things that Donald Trump does to abuse his power not only looks on favorably on Donald Trump in advance of the election, but it also looks unfavorably on the senators who not only voted to acquit him but also refuse to conduct a fair trial.

Preet Bharara:

Dan, while I have you, we’re recording this on Tuesday afternoon, February 11th, and while we’re in here, there continues to be breaking news with respect to more stuff coming out of the Justice Department. I see that your boss, Adam Schiff, has put out a statement about these events, and the thing that we’re talking about is the sentencing of Roger Stone, associate of Donald Trump, is coming up soon. Yesterday, the Department of Justice through the US Attorney’s Office for the District of Columbia put in a sentencing submission in which they advocated for a sentence within the guidelines range, which is also what the probation department I think advocated for as well, based on what the guidelines ranges of seven to nine years.

Preet Bharara:

After that, the President of the United States tweeted about his friend and confidant, Roger Stone, that this was an unfair sentence and it was too much. Following that, there were reports that the Department of Justice was going to overrule the US Attorney’s Office in the District of Columbia and have them submit a sentencing memorandum that would suggest a much lower sentence for Roger Stone. While we’ve been sitting here talking about issues related to impeachment, that memorandum has been filed and the government now says that it respectfully submits that a sentence of incarceration far less than 87 to 108 months of imprisonment would be reasonable under the circumstances.

Preet Bharara:

It is also my understanding, this may change over the next couple of days, but the breaking news is that all four of the government lawyers who signed yesterday’s sentencing memorandum have asked the court to withdraw from the case, and one of them has resigned from the Department of Justice completely. Your reaction.

Dan Goldman:

It is certainly the right thing for them to do under the circumstances.

Preet Bharara:

You mean the people who withdrew.

Dan Goldman:

Yes, the Assistant United States Attorneys who withdrew. Roger Stone was partially charged with obstructing the House Intelligence Committee’s investigation into Donald Trump and into the Trump campaign. It is truly, truly beyond the looking glass at this point that the President would tweet about a sentence of a confidant of his who was convicted for trying to cover up coordination between the Trump campaign and WikiLeaks in part, and that obviously related of course directly to the President would tweet that the sentencing range suggested by the prosecutors, which as you know well, Preet, the sentencing guidelines is the default recommendation by United States Attorney’s Offices around the country, unless there are aggravating circumstances or mitigating circumstances.

Preet Bharara:

They’re not always wise. They’re not always good. We sometimes, you’ll recall, we sometimes did not in a full throated way say that the sentencing guidelines must be followed. Although I will note, as some people have been noting with irony today, that the Attorney General of the United States, Bill Barr, made comments today about “progressive prosecutors” for not pursuing strong sentences for people, when they, in almost every case, in his view, they should. To my mind, it’s not about whether or not it was appropriate for there to be or cosmically just for there to be a sentence between seven and nine years.

Preet Bharara:

What’s bizarre, and I assume you agree with this, and unprecedented in my view is that you have in any case, by the way, a sentencing recommendation made in good faith by the heads of an office and have that be overruled by the Justice Department, presumably by the Attorney General. That itself I’ve never heard of because you have that consultation in advance and mostly you stay away from the local prosecutor’s offices with respect to sentencing. It makes it doubly, triply, I don’t know how many times more, bizarre, unusual and bad-

Dan Goldman:

…and dangerous.

Preet Bharara:

… and dangerous that it’s not only the President of the United States who is crossing a political line into law enforcement and basically directing that essentially would be less, but as you point out, two additional factors make it dangerous that it’s somebody who is close to the President of the United States, an associate of the President of the United States, and even worse, someone whose crime involved, you could argue, protecting the President’s campaign and the President of the United States. He is holy, holy conflicted in every possible way both generally and specifically with respect to the sentencing of Roger Stone and yet he inserted himself.

Dan Goldman:

He not only inserted himself, which is one thing, but the real concern here is that the Attorney General seems to have acceded to his wishes. This once again is another complete breakdown of the line between the Presidency and the Department of Justice that has existed since Watergate, and existed, in part, was created in part as a result of Watergate. This is incredibly dangerous that what we are seeing now is the complete adoption of the Presidency and the President himself as the client of the Department of Justice. That’s what this reads to me as. Kudos to the prosecutors, the line prosecutors who stood up for what they believe to be right and just and that this is a political intrusion into what should be an apolitical process.

Preet Bharara:

By the way, it remains to be seen whether the US Attorney himself in the District of Columbia resigns, who by the way, Mr. Shea was just placed there after the prior US Attorney was removed, and Shea reportedly used to work directly for Bill Barr. You even have that US Attorney being humiliated by his former boss and I guess technically his current boss as well.

Dan Goldman:

Well, he signed the letter today, so-

Preet Bharara:

He did. I guess some people want to keep their jobs. The other thing that occurs to me is Bill Barr does not seem any longer to really care at all what the optics are and what it looks like. You could understand, whether in good faith or not, he thought that seven to nine years was too extreme for Roger Stone. Once the submission went in, which by the way doesn’t have force of law, the judge these days in recent years is able to impose whatever sentence he or she wants and the sentencing guidelines that are the default as you described are merely advisory. They’re not required as they used to be back in the day some years ago. The idea that you decide after the submission goes in, after the President tweets about it to nonetheless insert yourself and overrule the decision of those career prosecutors is someone who just doesn’t care what it looks like anymore at all. He wants to do the bidding of the President.

Dan Goldman:

As another angle to this, which is if you’re the judge and you get a guidelines recommendation, then the President tweets that it’s too harsh, then the Attorney General overrules the folks who put the guidelines recommendation in with a lower recommendation, now what do you do as the judge? How can the judge give a sentence much lower than the guideline range without seeming political?

Preet Bharara:

I thought you were going in a slightly different direction. It puts everyone in a bad spot, but the judge can ask a lot of questions. I saw someone suggest, and I endorse this suggestion, she can ask for a showing and proof of what the timeline was. Who asked for what? I presume the government will take issue with that if requested and not want to share it, but we’ve seen judges in less momentous cases all the time ask about the decision-making process when an allegation has been made that there was something untoward.

Dan Goldman:

Absolutely. I would fully expect the judge has to understand why the Department of Justice is reversing their position one day after making it public in a court filing. I would be shocked if she did not pursue this and investigate it just for her own understanding as to what the basis was for the first recommendation and what the basis is for the second recommendation.

Preet Bharara:

Do you think that your committee or the judiciary committee should do something about this?

Dan Goldman:

I think Congress absolutely needs to. I’m not sure I would necessarily limit it to Roger Stone, but there’s a host of things that are … as a proud DOJ alum I’m very concerned about what is going on with this Department of Justice. I didn’t pull punches as it relates to the Office of Legal Counsel, but there are real concerns that that office, which has been such a venerable office within the Department of Justice and within the whole executive branch and had such a sterling reputation as being the objective voice of legal propriety and constitutional interpretation within the administration. There are a number of opinions that seem very result-oriented, which has never how that office has been that requires some degree of oversight as well.

Preet Bharara:

Dan Goldman, thank you for being on the show. Thank you for your service. Really proud of you.

Dan Goldman:

Thank you very much, Preet. Appreciate it.

Preet Bharara:

The conversation continues for members of CAFE Insider. To hear the Stay Tuned bonus with Dan Goldman and get the weekly CAFE Insider podcast and other exclusive content, head to cafe.com/insider. Right now, you can try the CAFE Insider membership free for two weeks at cafe.com/insider. Students with a valid dot-edu email address can now get a special discounted rate. To do so, head to cafe.com/student. That’s cafe.com/student.

Preet Bharara:

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Dan Goldman. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics and justice. Tweet them to me at Preet Bharara with the hashtag #askpreet or you can call and leave me a message at (669) 247-7338. That’s (669) 24-PREET or you can send an email to [email protected] Stay Tuned is presented by CAFE. The executive producer is Tamara Sepper. The senior audio producer is David Tatasciore. The CAFE team is Julia Doyle, Matthew Billy, David Kurlander, Calvin Lord, Sam Ozer-Staton and Geoff Isenman. Our music is by Andrew Dost. I’m Preet Bharara. Stay tuned.

PART 3 OF 3 ENDS [01:38:19]

 

STAY TUNED WITH PREET

Scenes from an Impeachment (with Dan Goldman)

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