PB: Thank you so much for being on the program

SW: Preet Bharara, great to be on your program

PB: So we are recording actually in Washington DC

SW: We are

PB: On the 6th floor of the ?? senate office building and it’s caused me to be a little bit nostalgic, I used to work in this building a few floors down

SW: Where we first met

PB: We did

SW: We were staffing than ordinary mortal senator chuck schumer who is now the leader

PB: The leader. Do you call him leader schumer?

SW: He likes to be called dear leader actually

PB: Right is he going to plan a military parade also?

SW: I think that’s a little soviet for his taste

PB: More of an executive branch prerogative in the senate you don’t’ really do that 00:41 i wanted to say on a personal note not to over flatter you

SW: Oh go ahead

PB: but when, so i was a staffer on the senate judiciary committee several years ago and i remember the new class of senators get elected in 2006, and as a general matter senators and staffers 00:58 don’t speak to each other, they barely look at each other they don’t know the names of the staffers unless you’re working for them but there were a few staffers who actually knew my name 01:03 and they were all freshman who came in the class of 2006 and so started serving in 2007 and they were claire mccaskill amy klobuchar and sheldon whitehouse, and you know what, it’s a nice thing. when a senator who is elected statewide from his state, knows the name of his staffers, so i just wanted to let you know 01:22 that i appreciate it and we appreciate it

SW: That was a good boisterous class we were all kind of underdogs when we got started 01:33 and i think have shown up pretty well over time, we were a pretty good class

PB: And you’re all running for president now

SW: Some are but god knows who

PB: But you are not

SW: i am not 01:41 one of them

PB: explain this to me, you’re kind of hurting the expectations of your forebears who gave you the name whitehouse and you don’t want to live there

SW: i know, i know, 01:47 it would be such an easy slogan

PB: it actually causes confusion, someone was asking me last night who my podcast guest was going to be this week and i said, i probably mumbled, senator whitehouse and he was like, white house? they’re letting you into the white house? no they’re not letting me into the white house

SW: you know back to the day of that class coming in one of the others was sherrod brown and some of the more elderly members of the senate had real trouble with sheldon and sherrod 02:15 both coming in in the same new class and to add the confusion sherrod brown and i invented a third new senator, the imaginary sherrod brownhouse 02:27

PB: that’s a real guy, right?

SW: absolutely i think he’s running for president.

PB: so to just continue with the nostalgia tour, one of the reasons that we got to know each other was in 2007 there was an 02:40 investigation done by the senate judiciary committee on a bipartisan basis on guess what, the justice department 02:47 and the ways in which it was politicized and you were actively involved in that you were a former united states attorney 02:50 former attorney general and i remember documents would come in and the staffers would go into a conference room while we presume the senators would go out and raise funds and have parties or whatever it is that senators thought they were doing 03:04 and you would show up and start looking through the documents yourself

SW: it’s the lawyer in me.

PB: it took a while for you to, i don’t know, have you now become so elevated that you let other people do the work 03:12 or do you still do some of the work?

SW: i still do a fair amount

PB: and how does that work for you?

SW: pretty well, pretty well

PB: yeah

SW: 03:20 i think there’s a feeling around staff that senators are better if they’re told what to do by their staff but i think that’s not always true

PB: how do you know and for the listeners, there are like, twenty or thirty staff members present in this small 03:33 podcast studio, no offense to them, how do you know that they’re serving your interests how does a senator know if their staffers are representing them in the way that you want to be represented

SW: 03:43 you know that’s actually an interesting question, early on someone said you know what the great fights are here in washington, one os obviously republican versus democrat and we’re certainly seeing seeing plenty of that and the other is executive versus legislative 03:56  that’s the fight that the founding fathers set up. the third is the house versus the senate 04:05 there’s the old story the house member calling the other party the enemy and the older house member coming up to him and saying don’t confuse things, they’re just our adversaries, the enemy 04:16 is the senate 04:19 and the fourth one is member versus staff and i can’t tell you how often i’ve reached agreements on the floor with a republican senator only to have their staff tear it down afterwards. oh no you can’t do that senator

PB: so it’s a little bit like the trump whitehouse. 04:31 stephen millers running around everywhere, they make a deal and then the staff, but that’s a real thing, it happens

SW: it’s a real thing, it happens

PB: how do you handle that 04:42 how do you make sure, i mean obviously, a senator can’t do everything, can’t be everything can’t be everywhere can’t be in every meeting can’t negotiate every line 04:47 of every bill or sometimes people use it strategically i mean i saw staffers who i think would say things 04:56 that they were directed to do by the member but the member had plausible deniability on it so there’s a good cop bad cop thing. how do you think that all works. and what’s the dynamic?

SW: 05:06 hard to say i try to stay as engaged as i can and to work as directly with as many of my staff people as i can so i have a chief of staff i have a legislative director, 05:20 i have a person who runs my judiciary unit and i have other staffers who work for the person who runs my judiciary unit and i will work directly with those staffers on the issues that they’re involved in so that things don’t get lost in 05:36 a lot of chain of command and i think to some degree, even though i can be a pain in the neck sometimes, those staffers actually like having direct engagement with the senator.

PB: the record will reflect 05:47 that your staffers are staring into space, i’m sure they’re nodding on the inside

SW; looking at each other and rolling their eyes 05:55

PB: they love it when the boss gets engaged finding out what’s going on nonstop. so that investigation look, it was a formative experience for me and something that you worked on when you came into the senate

sw: but you remember how it ended, it ended 06:08 with the inspector general at the department of justice needing documents that the white house had and asking the whitehouse 06:16 for the documents and the white house saying no we’re not going to cooperate we’re not going to cooperate we’re not going to give you the documents and attorney general mucusy meekly yielding and not insisting on the white house producing the documents

PB: but a lot of other things happened along the way 06:33

SW: a lot of other things happened along the way. that was a very unfortunate ending to that

PB: well i want to compare what happened then to what’s happening now and one of the things that was happening then 06:42  was it was my recollection was it was very bipartisan you know senator schumer, senator leahy on the democratic side, senator Specter on the republican side and i was one of the lead staffers in a lot of the various people at the justice department about why they fired these attorney and why they had political litmus tests 07:02 for people who are coming into the department which is anathema to hi think the interests of justice but on every one of those things i think the minority staff 07:08 the majority staff worked on them jointly agreed on who the witnesses should be, agreed on whether or not subpoenas should be issued and made join recommendations to the chair and to the ranking member and i think it gave the investigation credibility 07:24 and people understood that it was not about politics although some partisanship entered into it but it was by and large a serious engagement into an inquiry about what was happening at the justice department because i do agree that oversight is an important part of your  job as a senator and you agree with that, how do you compare that to what’s happening now with the intelligence committees, and the judiciary committees with respect to the russia investigation and the muller investigation 07:49 the level of bipartisanship

SW: it’s a world apart 07:52 it’s a world apart i think that the firing of the us attorney for political purposes was a scandal that was only likely to go so far particularly if the department of justice was going to yield to a white house that said no you can’t see our documents 08:10 but i think even without that it was probably only going to go so far, maybe karl rove’s would have had to roll if he was caught manipulating or something like that but that was kind of the limit of it, in this case the russia investigation goes straight at the president, his family and his political circle 08:37 so they’re much more anxious than the bush whitehouse was about the us attorney investigation i think that the biggest unanswered question that is floating around out there about this investigation is what was the white house role in the house intelligence committee republican report

PB; you’re talking about what’s referred to as the nunezz memo

PB: the nunez memo, what was the white house role, and over and over again when nunez got asked that question he either ducks it or drops into carefully scripted lawyerly statements that say things like well the white house didn’t draft any part of the report 09:22 if you’re doing legislative oversight of the executive branch, and you’re having your strings pulled by the subject of that investigation in the executive branch that’s not real legislative oversight and at its worst it might actually be obstruction of justice  and

PB: by the way to clarify what we’re talking about is the three and a half page memo that was put out by the 09:48 majority of the house intelligence committee relating to a fisa application involving carter page in connection with the russia investigation

SW: correct

PB: and 09:57 there is pending at the time of this recording at least, on wednesday afternoon, the release of the democratic version of events in a lengthier memo that’s going to be put out i guess by representative adam schiff 10:06 so you’re saying that devin nunes is potentially involved in obstruction of justice as a legal matter

SW: there is an unanswered question as to what the role has been of the white house or of the trump legal team 10:21 in that nunes memo’s preparation and the plan to put together in all of it. if there were no role, if this was pure legislative oversight that was being done on the up and up it’s an incredibly easy answer to give, it’s not only no but hell no 10:42 we would never do that that’s ridiculous, end of story instead you get these 10:47 carefully placed, doge’m answers that suggest that maybe there is something there and i think we’re entitled to know what that something was and if it has in fact gotten to the point where this actually was a scripted exercise designed to impede bob mueller’s investigation by facilitating a broad attack on the FBI and on certain witnesses who might be brought into the grand jury 11:12 now you really are getting into obstruction of justice territory these should be really easy questions to answer and the absence of a clear answer is telling.

PB: who do you think is most likely at the white house to have been involved in coordinating, i won’t use the other c word, colluding, devin nunes and the house intelligence committee in putting out this memo. 11:35

SW: i could not hypothesise it could be you know virtually anyone 11:43 i would hope that the lawyers who are advising trump as his personal lawyers would know better than to be involved in any such thing and would in fact blow the whistle if they found out about it

PB: so if the white house counsel don mcgahn is involved, that’s one thing 11:57 but if ty cobb who is playing a central role in representing the president in connection with the muller investigation was involved in the nunez memo you think that’s a terrible thing.

SW: it would be a terrible thing if either of them were involved. i think that both of them are good enough lawyers 12:11 and experienced enough people that in my judgement they would be very unlikely to be involved if i had to make a wild guess it would be that it was 12:22 some over enthusiastic 32 year old, junior person who thought they were being a real genius. but if mcgann or cobb knew about that they’d go ballistic but again those ought to be easy questions to answer and we haven’t gotten those answers

PB: should the nunez memo have been released?

SW: No. it should not have

PB: why?

SW: well for a variety of reasons first of all it created a false narrative worse than just creating a false narrative because you can ultimately correct a false narrative, is the fact that around the world intelligence services upon whom we rely for extraordinarily sensitive intelligence information 13:09 are now looking at an unprecedented process in which one party on a purely partisan basis, has extracted classified material 13:19 to put it before the public as part of a partisan mud fight now you can cure the accuracy of that false narrative by bringing out additional classified information that corrects the record 13:31 but bringing out that additional classified information only makes the concern worse that classified information potentially shared with the united states by other countries and their intelligence services is now something that is going to be extracted and thrown in front of the public in a partisan mud fight.

PB: so should the democrats stand down and not make matters worse? 13:50 and let the nunez memo which has been much criticized by myself and others, fall of its own weight?

SW: no i think that you’ve got to respond because if you don’t what you then have is the strategy of selective declassification to create a false narrative succeeding and that’s only an encouragement to do more and more and more of it

PB: you were united states attorney, attorney general now a senator for a long time and devin nunes has said things like carter page should never have been looked at at all by the fbi 14:26 based on what information is publicly available do you have a view on that

SW: i’ve got to be a little bit careful because i’m one of the few senators who have been given access to the underlying material

PB: meaning the affidavit in support of the fisa application

SW: and related documents yes

PB: and you’ve gone to-

SW: and i’ve gone to read them

PB: you didn’t trey gowdy?

SW: i did not sent trey gowdy, i actually went through them and so i’ve got to be careful because some of that is still classified but the conclusion that i’ve reached is that there was abundant evidence outside of the steele dossier that would have provoked any responsible fbi with a counterintelligence 15:10 concern to look at whether carter page was an undisclosed foreign agent and to this day the fbi used to assert that he was an undisclosed russian 15:25 foreign agent

PB: so you’re junior still, so you’re not the chairman of the committee of ranking member of the committee

SW: i’m the ranking member of a crime and terror subcommittee that’s where lindsay and i had

PB: a lot of fun

SW: a number of very good hearings on this

PB: but i’m going to a different point which is even though you’re not a ranking member of committee and even though you have not put out a memo in your capacity as the chairman and ranking member of a committee you went and read the `underlying 15:49 documents

SW: yes in my capacity as the ranking member on the crime and terrorism subcommittee 15:56 of the judiciary committee i was given access to those documents

PB: and you thought it was a responsible thing to look at them

sw: 16:00 i thought it was a responsible thing to look at them

PB: what do you think about the fact that representative nunez who is making a lot of hay about all of this information, claiming that the affidavit 16:11 was filed under false pretenses and the fisa court was misled that he himself has not looked at that material

SW: well that is not a fact that adds much to his credibility and to the extent that this was staff driven the potential that there was white house interference or coordination in all of that actually goes up a bit because you could have the over enthusiastic young staffer 16:46 at the white house  now being matched by the over enthusiastic staffers on the house permanent subcommittee on intelligence and they cooked up this cockamamie scheme and if their supervising representative the chairman of the committee has not gone and read the actual documents the dancer of being led astray goes up and again i don’t think it’s very plausible that don mcgann or that ty cobb had a role 17:16 in this they’re too experienced and they’re goo good of a lawyer to do this and frankly if they saw it coming they’d be nuts not to blow the whistle on it but that does not mean there are not folks over there who for some reason or another think that this is a really clever idea 17:34

PB: have you seen the schiff memo?

SW: no.

PB: do you think there’s a possibility that the president will not allow it to be released?

SW: distinct possibility

PB: and what do you think will happen if the president not withstanding wanting to release the republican memo and even though the intel committee voted unanimously to 17:51 release the democratic memo the president says no way, what will happen?

SW: i think there will be a storm of controversy

PB: another storm of controversy

SW: another storm of controversy, an est storm of controversy and i think that at that point under the house rules the question then goes to the full body of the house of representatives whether to go ahead and make the disclosure notwithstanding 18:21  the opinion of the president and when you take a look at the vote in the intelligence committee to release the report, which we’re told was unanimous it’s really hard to imagine that the republicans would not vote to release the report so a fine mess ollie as they used to say. but i think ultimately the report does come out and i think facing the prospect that ultimately the report must come out the cooler heads at the white house will say to the president will say there’s no reason to black your own eye taking this punch 18:59 to no effect because it’s all going to come out anyway, feign magnanimity, feign a lack of concern about this, let it come out and move on, that would be the sensible advice to receive

PB: do you think representative nunez should continue to be the chair of the intel committee

SW: 19:15 well that’s going to be the call of the members of the committee i have not seen how damaging the schift counter report is but there’s every reason to believe that reasonable  minds could believe that he’s damaged himself 19:30 enough that he should no longer have a role in this investigation but i’d be prejudging to make that conclusion now until the schiff report is public

PB: what happens if the president of the united states fires either 19:45 rod rosenstein the deputy attorney general or causes the firing of bob muller 19:51 there’s a lot of discussion about it and a lot of people on cable television saying you know constitutional crisis, but what do you think will really happen dont he second question is 20:00 what will you personally do as senator if that happens

SW: well 20:05 a lot depends on what the president chooses to do it’s  not all that easy to get to bob muller, one way is that you ask jeff sessions to step down you get a new attorney general in place and then the conflict 20:24 that created sessions recusal you deem to have evaporated and now you don’t need special council this could just be run by the department of justice and the ordinary courts that requires you to get through advice and consent on your 20:40 new attorney general which is not an easy thing. you can order sessions to fire rosenstein or try to fire him directly and then wait and see what consequences that has and then you’ve got to fire your way down to someone who will fire muller 20:57

PB: so if he does it that way then what

SW: well, then it’s a slow process of  going through the firings until you get to that person the first one up is rachel brand maybe she holds, now you’ve got to fire her and then who else comes up, next you could actually end up in a situation in which, you actually go quite far down 21:14 to the department and nobody is willing to fire bob muller and now you’ve really destroyed your presidency to no gain plus the firing begins to look like an element of your obstruction of justice 21:28 charge just because the president is doing something in his official capacity that he is allowed to do doesn’t mean it’s not obstruction of justice

: can i tell you something i don’t fully understand from where i sit 21:40 on the outside and that is rod rosenstein seems to have a lot of support among folks as a person who has served both as a democratic and republican

SW: career guy solid reputation, US attorney.

PB: but on the issue of recusal which has been an issue we’ve been talking about with jeff sessions and other people over the last number of months 21:59 it appears that if special counsel mueller is looking at obstruction and one of the things that they’re looking at is the way in which jim comey former FBI director was fired and we also know that rod rosenstein had a role in drafting at least the initial memo 22:12 which one could argue was, i think it was, pretextual as to why jim comey was fired having to do with how they handled the hillary clinton email investigation, he must be a witness but no one is clamoring for him to recuse himself my theory being well democrats trust him to maintain bob muller in place more than any successor do you have a view on whether or not he can actually continue in his role given that he’s a witness in the investigation

SW: you know if that has been worked through to muller’s satisfaction 22:42 and i have every reason to believe that is has then i don’t see any reason to second guess what bob muller and his investigators feel about their comfort level there 22:51 i don’t agree that the rosenstein memo was necessarily pretextual i think that comey was way out of line in a couple of things first 23:07 you and i both know that it is a cardinal rule in the department of justice that you do not disclose derogatory investigative information about an uncharged person and even if you charge a person you do  not reveal derogatory investigative information about that person   23:23 except through the proper course of law you put it in the indictment you put it into motions or affidavits

PB: you don’t go outside the four corners

SW: you don’t go outside the four corners of the case

PB: that’s all true

SW: he did that which was unacceptable i mean you’ve been a us attorney if the fbi goes rogue and doesn’t check in with the department, if that were to propagate itself through all the SACS around the- the SACs around the country

PB: we had this conversation in my office and i was united states attorney at the time 23:55 we said what if the special agent in charge of the FBI at the time went out to cameras and announced what their view was on the case that was our decision to make whether it was 24:06 the mayor or another high profile case

SW: your head would have exploded

PB: three times, it exploded three times, i agree with all of that i’m not saying that what view was expressed in the rosenstein memo about the conduct of jim comey 24:16 was nuts, what i am saying is the idea that that was actually a reason why the president woas hot to fire jim comey does seem to be nuts.

SW: could be.

PB: i want to go back to something we talked about, when you came into the senate  24:31 we did these investigations and basically the entire top leadership of the justice department left in connection with some of the things that we have been looking at and president bush needed a new attorney general and he nominated someone who i know very well was the chief judge in my district, i did trial 24:46 practice with him you know i don’t share views on a lot of things, michael b mukasey, michael b mukasey was cruising towards a very confirmation and it was a two day confirmation hearing that took place in i think hart 216 25:00 where a lot of the big confirmation hearings happen

SW: i remember it to this day 25:05

PB: and i was sitting in the room and it’s very rare that you have a jolting moment in a senate rearing, it happens time to time. and i remember sitting there probably on my blackberry responding to various things that senator schumer wanted me to 25:18 be doing and you asked a question and i have never been, it was four and a half years here and i had never been in a hearing that had as jarring a moment in a story of a change the tenor of the whole place, the air went out of the room 25:31 and you asked the nominee to be the attorney general of the united states, was back then i think it was 2007, 25:36 if he believed that waterboarding was torture and he wouldn’t answer your question

SW: yep

PB: why’d you ask the question? and why were you so upset by the non answer

SW: i asked the question because 25:51 one of the problems in the department of justice had been what i consider to be the failure of the office of legal council to do its job honorable and responsibly as you and i both know the office of  legal council is sort of the high priests and priestesses of the department 26:13 it’s the best it’s the brightest it’s the ones who were supreme court clerks its the one who go on to be supreme court and circuit court judges it is a big deal 26:25 to be in the office of legal council and when the time came for the office of legal council to opine on whether or  not the waterboarding program the torture program was legal or not they cooked the memos it’s rare for the office of legal council ever to withdraw a memo they’ve been withdrawn i was one of the first people to actually get access to those memos 26:45 and to read them and i’d done a little bit of research there was a decision out of the fifth circuit court of appeals, one down below the supreme court 26:56 upholding the conviction, the criminal conviction for violating civil rights of prisoners of a texas sheriff who waterboarded those prisoners, it was called water torture 27:10 repeatedly in the district court decision and in the circuit court decision it was a case that was brought by the department of justice they had that case in their files 27:23 even if they couldn’t find it by searching the circuit court of appeals decisions for words like water and torture. and in their lengthy opinion they never mentioned that decisions any lawyer know that if you’re going before a judge you have an obligation to raise and if you wish try to distinguish away the precedent that is against you it is one of the worst things a lawyer can do to go into court and basically try to fool the court by not bringing up relevant precedent that doesn’t go your way so this wasn’t just the hypothetical question of whether waterboarding is torture or not, that is i think an easy answer when muscasy was unable to answer that question that signaled to me 28:11 that he was not going to be firm about cleaning up that problem at OLC

PB: you seem to have gotten, in the past this issue of waterboarding and torture in the years since then, since that hearing, are you worried

SW: obviousness has a way of asserting itself over time

PB: well you know there’s rhetoric these days about you know, in guantanamo bay 28:33 and how people should be treated and harsh interrogation techniques and the current president when he was a candidate talked about these things in the end of way that you would not have liked had the attorney general done so in 2007 do you see a return to that kind of method 28:46

SW: i think that um there’s a certain amount of rhetoric around this i think once you go to secretary mattis and once you go to director pompeo and 28:58 once they consider how we expect say a downed american pilot to be treated when he or she is captured the idea that we greenlight that kind of abuse will come back to haunt our own men and women in uniform and the men and women of 29:13 our intelligence services and i think that the military and intelligence services are keenly aware 29:17 of that and will be a check on that we also know that it doesn’t damn work and that’s really the bottom line.

PB: your crack staff is making eyes at me to wrap up because you’ve got a lot of things you’ve got to do so let me just end with asking you do you think that the democrats will take back the house this fall?

SW: i do

PB: and if the democrats take back the house based on information that’s already out there, based on what you think will be uncovered and what will be disclosed and what bob muller may do, do you think there will be a credible effort to impeach donald trump 29:48 in the house. not whether they should but whether there will be

SW: i don’t know it all depends on what the muller report looks like there is a significant chance, just because what we know publicly is so shady, when you add in what mike flynn what papadopoulos what hope hicks what people who have been either interviewed, 30:12 or are cooperating may have said to muller when you look at i assume he subpoenaed the trump tax returns and has been looking at the money laundering financial side of all of this there is a chance that when this report comes out it’s not just a summary of what we know it is actually a knockdown blow that causes republicans and democrats alike to say okay that has to be remedied we have to act and until you know what that case is, i don’t know 30:51 i think we should run to control the house because of the bad things that trump has done as president not as a mechanism of getting ot impeachment i don’t think that we should be focusing on that issue that will play out in the natural course of events 31:05 and the less of a political overtone it has the better, i think the american people are sick of what they’ve seen in terms of the divisiveness 31:13 of this president and there’s plenty of reasons to vote for a check and balance against this trump white house without having to go to impeachment.

PB: who is your favorite republican

SW: well lindsay and i did a lot together in the committee and i am a big fan of his but let me tell you a slightly different story, because my number one nemesis in the senate on all things climate is a guy name jim inhoof of oklahoma, he’s the guy who went to the senate floor with a snowball, i’m the person who showed up with my ipad with the NOAA satellites to rebut him 31:44 we’ve gone back and forth at each other on this issue for a long long time but we did a bipartisan hearing on the problem of plastic all over the ocean, all of the marine debris 31:56 that’s clogging the oceans with plastic trash and he came into the room and i will confess to you that my initial reaction was to want to thump my forehead on the desk in front of me nand say 32:06 jim why did you have to come we were having such a good hearing why, geez, he came in he sat down, he listened to the hearing, he said this important stuff i think i’d like to get behind this bill he told the story of going as a young man  down to the gulf coast and staying up to protect the little turtles coming out of their shells from trucks and jeeps going up and down the beach 32:30 so that they could get safely into the ocean he became an original cosponsor of the legislation and that led it to be passed by unanimous consent in the senate and it’s now awaiting action in the house 32:45 so you find allies in the senate as you remember from your experience, in some very improbable places.

PB: has that taught you anything about how you get bipartisan action going forward?

SW: i think the lesson is that you can disagree very vehemently with people on some issues but you shouldn’t let that vehement disagreement on those issues impede you in finding the places where you can work together and get good things done and i think it’s pretty clear that beginning to solve the problem of the plastic that is clogging our oceans with waste is a good thing to get done.

PB: no argument from me.

SW: yeah

PB: that’s a good place to end. senator whitehouse, thank you so much again for being her and taking the time.

SW: preet bharara good to be with you.