Live from Town Hall (with Jeffrey Toobin)

Air date: 11/1/18

Preet Bharara: First, we had a whole discussion.

Jeffrey Toobin: Mm-hmm.

Preet Bharara: I said to Jeff, just by way of FYI, I will not be wearing a tie. [Crowd laughing] And he responded—he responded to my text—

Jeffrey Toobin: What did I say?

Preet Bharara: “This is useful information.” [Crowd laughing]

Jeffrey Toobin: Which it was.

Preet Bharara: Which to me means he wasn’t planning to wear a tie, and then when I told him I wasn’t wearing one, the useful information was, I will wear one and show you up.

Jeffrey Toobin: Exactly.

Preet Bharara: Is that true?

Jeffrey Toobin: Yes. Yeah. [Crowd laughing]

Preet Bharara: It’s a very serious time. And all these people are here because they care about what’s going on in the country, and I presume they listen to what—al the smart things you say on CNN, and the smart things you write in the New Yorker and in your books. Bombs have been mailed to significant people in the country. Is it okay to laugh, and have a sense of humor, and have a good time? Say something helpful, or funny, or something.

Jeffrey Toobin: Of course it’s okay to laugh. I mean, you know, there’s always been laughter. I mean, the Soviet Union was a much worse place to live than the United States is today, and you know, jokes were an enormous part of life in the Soviet Union. I don’t think we’re near that yet, but do you read the tweets? Just the capitalization is funny. [Crowd laughing] And, you know, that alone. So, you know, you gotta find joy where you can. And so, yeah. The answer is yes, you have permission to laugh.

Preet Bharara: Should we always laugh, given how serious it is?

Jeffrey Toobin: The news business thrives on black comedy and finding the humor in the worst. And it just reminds me. I was a summer intern for Carol Bellamy, who was President of the City Council. And I had to—just so you can see how long ago this was—I had to deliver by hand a press release to the Daily News newsroom. And it just happened to be the day that Thurmond Munson, the great Yankees catcher, died. And, I mean, the news had just come in. And I happened to be standing in the newsroom when one guy said to another, he said, “Hey, did you hear about Munson? He just got traded to the angels.” [Crowd laughing] And I thought, that’s like—I want to be in that business, you know? I thought [laughing] I can’t believe I remembered that, but it’s true.

Preet Bharara: And then said it.

Jeffrey Toobin: Yeah. [Crowd laughing]

Preet Bharara: But we used to both work in places, US Attorney’s offices, that were interesting in the following respect, right? I worked on organized crime cases. We had homicide cases. And you see the worst that humanity has to offer. You see evil in that job every day. And yet, I’ve never been in a place, including comedic environments, where there is more laughter and more sense of humor than I experienced at the US Attorney’s office for the Southern District. And I know the Eastern District was the same. People are surprised to hear that there’s a lot of joking that goes on in those serious places, but I think it’s almost a necessity of the job that when you’re doing work that’s incredibly serious, you can’t take yourself too seriously, otherwise not only do you not have a good time, not only is it a bad environment, not only is it a bad culture, but you don’t have perspective on life. In jobs where you have to have perspective on life and proportionality, a sense of humor is essential.

Jeffrey Toobin: It’s true. And also, the other thing about dealing with criminals on a day-to-day basis is, one of the things you realize is how bad most of them are at their jobs. [Crowd laughing] And you did white collar cases, and I did some white collar cases. One of the things you would always get at a defense argument was—the defense lawyer would always say, “You know, of course he didn’t endorse the check in his own name. That would have made him too easy to get caught.” But they would always do stupid things.

Preet Bharara: And thank God.

Jeffrey Toobin: Thank God for that, yes.

Preet Bharara: Thank God, right? That leads me to think about two things. One is, that’s a defense that sometimes this president’s lawyers put forward, and say, “Well, if he was really gonna obstruct, would he have tweeted about it?” Yeah, sometimes people do that. [Crowd laughing]

Jeffrey Toobin: Well, I mean, you know, I grew up as a kid following Watergate. And Watergate was the formative news story of my youth. And I followed it—you know, I was a huge baseball fan, and I followed it like I followed the Mets. And the great mystery of Watergate was like, what was on the tapes? What was Nixon really thinking? And ultimately, the Supreme Court ruled nine to nothing that the tapes had to be released. June 23, 1972 tape where Nixon says, “Tell the CIA to tell the FBI to ease off on the investigation,” creates this fake cover story, the so-called smoking gun tape. Here, the President admits it to Lester Holt the next day that he fired Comey because of the Russia thing. I mean, it has a very serious implication that even though, as far as I’m concerned, that was a confession, the fact that it was done in public, and the fact that we’ve heard it for so long now, it’s sort of lost its sting. But it’s still a confession. And I think that’s what makes this—one of the many things that makes the Trump administration’s misdeeds so peculiar, in addition to so harrowing, is that they don’t even try to pretend they didn’t happen.

Preet Bharara: Is it your view that slam dunk case, Donald Trump obstructed justice?

Jeffrey Toobin: Well, look.

Preet Bharara: Oh.

Jeffrey Toobin: No. I mean, you have to talk about slam dunk case for what?

Preet Bharara: Obstruction. Start with obstruction.

Jeffrey Toobin: Well, but I mean, I do believe that the Justice Department opinion is right, that you cannot indict a sitting president. I think that’s a correct view. So, I don’t think there will be any criminal case against Donald Trump.

Preet Bharara: Well, is it a clearly impeachable case?

Jeffrey Toobin: Well, then—once you start getting into a question of what’s impeachable, that is much more a political question than a legal question. I mean, you know, Gerald Ford, when he was in the House of Representatives, was involved in a fortunately stillborn attempt to impeach Justice William O’Douglas. But he said something very memorable about impeachment. He said, “An impeachable offense is whatever a majority of the House of Representatives thinks it is.” And I don’t think that’s a bad thing. I mean, impeachment was designed as much as a political check as a legal check. So, when you say, is that an impeachable offense, would a Republican House of Representatives vote to impeach for that? Of course not. Would a Democratic house impeach him?

Well, I just did a piece on this in the New Yorker. Nancy Pelosi, [?Gerine] Adler, who will be the Chairman of the Judiciary Committee if the Democrats retake—they are not gonna push impeachment unless 67 senators are ready to vote to remove him, which is inconceivable. So, no, I don’t think that is impeachable or a crime that will be prosecuted, but I still think firing James Comey was an obstruction of justice by the President.

Preet Bharara: So, if he were a governor as opposed to a president, and you were the prosecutor, you would bring that case?

Jeffrey Toobin: Absolutely. Absolutely. The law is clear that the President had the right to fire James Comey. He had the right to fire you.

Preet Bharara: Your former professor, Alan Dershowitz, basically says that that fact alone—oh my God, he gets hissed.

Jeffrey Toobin: I know.

Preet Bharara: That—how’d you do in his class?

Jeffrey Toobin: I did well.

Preet Bharara: Oh.

Jeffrey Toobin: Not great, but well. [Crowd laughing]

Preet Bharara: He basically argues, I think, and I think you think, incorrectly—

Jeffrey Toobin: Right.

Preet Bharara: That the mere fact that someone has Constitutional authority to do a thing means that engaging in that act can’t be a crime. And that’s clearly incorrect?

Jeffrey Toobin: I think it’s clear. No, like just for example is the example I have used in debating with him, is if Joe Smith walked into the President’s office with an attaché case full of case and said, “Fire Preet Bharara, and I’ll give you the $10 million,” and he did it, that would be a crime.

Preet Bharara: Oh my God, is that what you think happened?

Jeffrey Toobin: That’s what happened. That’s what happened. [Crowd laughing] I was saving it for my book, but now it’s blown.

Preet Bharara: Can we take a step to the side for a moment?

Jeffrey Toobin: Uh-huh.

Preet Bharara: These mail bombs, the last couple days, and we both work some of the time at CNN. And so, what happened there and other places is, I think, very terrible. But immediately, you have started to see people state that, well, this is a hoax. This is being perpetrated by liberals to change the narrative. And because it’s so ineptly done and none of the bombs exploded—Rush Limbaugh apparently was saying, the fact that no one died to his mind means that this is something perpetrated by folks to garner sympathy for the left. And they’re using that same argument about ineptitude to suggest that.

Jeffrey Toobin: You know, I take this personally. I’ve worked at CNN since 2002. And I’ve worked at the Time Warner Center since it opened. This was a bomb in our workplace. It was an actual bomb in our workplace. And I think if things had gone somewhat differently, there would be probably one of the workers in the mailroom who didn’t have a hand or two. That is such a chilling and disturbing thought. This is not people speaking inappropriately. This is not ugly racial invective. This is violent crime. And I don’t know enough about explosives to know why these bombs didn’t go off. But based on what I have heard from our colleagues and from just other news reports, these were not fake bombs. They were actual bombs. And fortunately, none of them have gone off. But the seriousness of this and the scariness of it, I mean, is chilling.

Preet Bharara: From a journalistic perspective, do you think—it is hard—because we have this experience all the time, right? There’s a breaking story. You might be in the studio, other people. And what the anchors want to know is who you think did it, and when will they be caught, and what do you think the motive was? And I get that. But it’s very difficult if those are the questions when you don’t know. I mean, I get tired sometimes of telling Wolf Blitzer I have no idea.

Jeffrey Toobin: Yeah.

Preet Bharara: I mean, I beep the hell out of—

Jeffrey Toobin: That’s why you’re only the senior legal analyst and I’m the chief legal analyst. [Crowd laughing]

Preet Bharara: Okay, boss. How have your predictions worked out, Jeffrey? [Crowd laughing] So, it becomes—but there’s this pressure to predict and to say, would it be better—maybe it’s not possible, because there are so many cable news networks—is there a way in which we can have people just shut up for a little bit before predicting?

Jeffrey Toobin: Well, I mean, I always say that the three words you’re never allowed to say on cable news are, “I don’t know.”

Preet Bharara: Oh, that’s—my contract is not getting renewed.

Jeffrey Toobin: Yeah. But there is a lot of speculation that goes on. And look, I try not to do it. I’m sure I do more than I should. But I mean, even today, I noticed—I was on Situation Room before I came here, and Wolf asked—I forgot, one of my colleagues—he said, “Why do you think the FBI isn’t disclosing more information?” And to me, it was just so obvious. It’s like, because they’re just investigating it. I mean, they are looking into what happened here. I mean, give ‘em a day—

Preet Bharara: Right. Right.

Jeffrey Toobin: —to chase this down. And look, I am as aggressive a reporter as anyone, and we can talk about my abject failures to learn what Mueller’s doing. But the notion that some things should be allowed to be investigated is a real one, though I am sympathetic with the journalistic urge to find out everything right away.

Preet Bharara: So, you had a great career as a prosecutor. Then you—

Jeffrey Toobin: It was good.

Preet Bharara: Okay.

Jeffrey Toobin: Yeah. [Crowd laughing]

Preet Bharara: Modesty is good.

Jeffrey Toobin: No, no.

Preet Bharara: And then you became a journalist. Do you miss it, the other job?

Jeffrey Toobin: You know, the answer to that is, a little. But being a grownup means you have to make some choices. I mean, I love trying cases. I really—and when I—see, this is like when you know you’ve turned into an old fart, when you begin sentences, “When I was an”—when I was an assistant US attorney, there were more trials. And one of the interesting things about the way the federal system in particular has evolved is trials have almost disappeared. And I was an AUSA for three years. I had, I think, 11 trials, which was average. It was like, not small, but it was not a lot. Today, you don’t have 11 trials in a career for 10 years.

Preet Bharara: It’s true.

Jeffrey Toobin: And so, I was really fortunate in that I had a great time. But I like what I do, so that’s the choice I made. It’s also been a long time. God, 25 years.

Preet Bharara: So, you have a legal background, and you talk about the law and write about the law. Some people don’t. Nina Totenberg writes and speaks about the law, and she doesn’t. Is there some special trick, especially in the current moment, in explaining what goes on in legal cases and in Constitutional crises, and what goes on in the court, that you rely on? Do you have principles of how you explain things to thoughtful people?

Jeffrey Toobin: The great value of having a legal background is you know what’s not important. Conversely, you know what is important. And I often see my colleagues with a document, like a complaint or an indictment. And if you have the background of having read and written indictments and complaints, you can tell what’s important, and you know what’s the boilerplate, and you know what’s not boilerplate. And that, to me, is the sort of technical gift of what a legal background has done for me, is to be able to sort out what that is.

Preet Bharara: You can separate the wheat from the chaff. Like, I’ll give you another example I’m reminded of. When I first started doing this kind of thing, I got asked a lot of questions after the Special Counsel subpoenaed—I don’t know, I forgot who it was. But they issued a subpoena. And everyone lost their minds.

Jeffrey Toobin: Right.

Preet Bharara: This represents a deepening of the investigation, a widening of the investigation. What do you think it means? Of course he issued a subpoena to this entity that’s related to what they were already doing. It’d be shocking and malpractice if they hadn’t issued the subpoena. But like you say, most people were celebrating what they thought was the deep importance of it because it was an actual action that they could report to their listeners or to their readers, when it didn’t have a lot of significance.

Jeffrey Toobin: That’s true. But there are moments when something may not seem as important, and it really is. And the classic demonstration of that is the firing of James Comey. The Cabinet serves as the president’s sufferance. The president can fire Betsy DeVos, the Secretary of Education, tomorrow, and— [Crowd cheering and clapping]

Preet Bharara: If you want more applause—

Jeffrey Toobin: I knew that was coming.

Preet Bharara: —just go down the list of Cabinet—

Jeffrey Toobin: Yeah, yeah. that’s right. But the FBI director has a term of 10 years. And he can—he or she can only be fired for good cause. The whole purpose of the 10-year term, which by definition spans several presidencies, is to keep the FBI director at least somewhat insulated from politics. And one of the things I pride myself on, being in cable news all this time, is that I don’t shout. I don’t get hysterical. I’m not a screamer like some people are on TV. But when Trump fired Comey last year, I ramped up the outrage, because it was outrageous. And that was even before he confessed to obstruction of justice. I mean, just the notion that he would fire an FBI director out of pique, out of—now we know, to obstruct an investigation of him, it was outrageous then, it was outrageous now. I think it’s illegal. And so, there was an example, I think, of my legal background making something seem even more important than it might otherwise seem.

Preet Bharara: Do you think that part of why you were so outraged was that one of the professed reasons given for the firing of Jim Comey was this memo that was prepared by the Deputy Attorney General Rod Rosenstein—

Jeffrey Toobin: Oh God, yes.

Preet Bharara: —that suggested that the President was firing Jim Comey not because of anything having to do with the Russia investigation, but rather for his mistreatment of Hillary Clinton, even though—just to make it more softball, even though, to this very day, Donald Trump warms to the crowd who chants, “Lock her up”?

Jeffrey Toobin: It is true that the pretext offered was so transparently false that it did add to the outrageousness of it. Because, I mean, again—again, one of the great things about being a journalist is the phrase, “You can’t make this shit up.” [Crowd laughing] Because the fact that Donald Trump claimed that he fired James Comey because he was too mean to Hillary Clinton, given the way that campaign was conducted, and given the way his rallies to this day continue that way—I mean, even I thought he didn’t have the moxie to do that.

Preet Bharara: Can we talk about Rod Rosenstein for a second?

Jeffrey Toobin: Yeah.

Preet Bharara: And sort of a theory I have—maybe it’s totally false—that I’ve been thinking about lately. And I may have mentioned it on the podcast before, but I’m not sure. And it relates to what I also want to get into, which is Brett Kavanaugh.

Jeffrey Toobin: Does Rod Rosenstein like beer too? [Crowd laughing] I like beer. I still like beer. Don’t—anyway, I’m sorry. We’ll get to that. [Crowd laughing]

Preet Bharara: This is night—

Jeffrey Toobin: It’s a podcast. I can say anything.

Preet Bharara: No, it’s all right. I have some questions about the devil’s triangle too coming up. [Crowd laughing]

Jeffrey Toobin: I was thinking—you know, your mentioned your yearbook picture.

Preet Bharara: It’s—I have a lightning round. Literally, it’s a lightning round.

Jeffrey Toobin: It’s—because I hadn’t thought—it’s so weird, during that whole conv—I didn’t think of it. And just, it made me think about my yearbook entry. Only could be condemned for extreme pretentiousness.

Preet Bharara: [Laughs] So, I’ve known Rod for a long time. Not incredibly well, but we were colleagues in different offices, worked in parallel on some cases, and fought about cases, in full disclosure. So, he does this thing, and he’s roundly criticized, not just in the press, but by his former colleagues, after having developed a reputation that—clearly meticulously cultivated, because reputations are cultivated. I don’t care who you are, how pure you are. People cultivate their reputations of being sort of nonpartisan or bipartisan, served in multiple administrations of different parties, and that he’s lawyer’s lawyer or a prosecutor’s prosecutor, or whatever other redundancy, the possessive you want to use. And he found himself as part of a huge controversy. And his personal reputation and legacy were at stake. And then within days, it wasn’t that long, where professionals who he had admired and who had admired him—I mean, I wrote an op-ed myself, which I tempered a little bit, the only op-ed I wrote during that time about the firing of Jim Comey and Rod Rosenstein’s participation in it. And then what does he do? He’s like, all right, so this is terrible. It’s bad for me. It’s bad for my reputation. It’s bad for my legacy. Everything I thought about how I was perceived in the legal community, which is a community that people care about, is now shot to hell. Okay, what do I do about it? Mueller. How much does that factor in, personal thinking about legacy and reputation and ego versus purely what the sort of lofty law requires?

Jeffrey Toobin: You are so right about that. I mean, I had some dealings with Rod Rosenstein very separately as a journalist. And he sort of looks like Clark Kent. And he kinda acts like Clark Kent.

Preet Bharara: I wouldn’t go that far, but all right.

Jeffrey Toobin: There is sort of an aggressive dweebiness about him. [Crowd laughing] But he is a savvy guy. And I think he got in over his head. And that ridiculous memo about James Comey’s misconduct to Hillary Clinton, I think some of that story is still yet to be told, I hope by me. I’m not sure he even knew that was gonna be released publicly.

Preet Bharara: Right.

Jeffrey Toobin: You know, he was humiliated by this. And he then took revenge that will be historic, because whatever else—I mean, I remember saying it at the time. If you were to go through the 330 million people in the United States and pick the single most damaging person you could have picked to be Special Counsel, Robert Mueller would have been number one. I mean . . . [Crowd clapping] Now, it is—now, there is a hypothesis or a scenario where that could rebound to Trump’s benefit. Because if Mueller somehow comes up with something that is less than earthshaking, the one thing Trump’s critics will not be able to say was, “Well, this was a whitewash because Robert Mueller has nothing—is just like Ken Starr.” No one thinks that. I mean, this guy has the single best reputation of anyone in the American legal community.

Preet Bharara: He did. He did. And I agree with that.

Jeffrey Toobin: Yeah.

Preet Bharara: But it shows me that anyone in America can be swiftboated.

Jeffrey Toobin: That’s true.

Preet Bharara: Because you take Newt Gingrich, who, on the day—Newt Gingrich, on the day that Mueller was appointed, in this famous tweet he sent, said, “Oh, everyone”—basically. I’m paraphrasing—“Everyone can relax. Bob Mueller has a great reputation.” Until it became politically expedient to both put off Democratic demands for various things and also to ingratiate yourself with the sitting president, which lots of people like to do. Newt Gingrich began to sing a different tune. And to me, at least, one of the most depressing things about all of this is the degree to which—no one’s perfect, and you don’t put anyone on a pedestal, and Bob Mueller included. Although he’s a pretty impressive guy, and a patriotic guy, and a courageous guy, and was loved by all sides before this especially fraught investigation that he didn’t have to do, after already having proven himself through a lifetime of courage and service, and selfless service. How depressed are you about how easily, for political purposes, people will just assassinate the character of people who don’t deserve that kind of character assassination?

Jeffrey Toobin: I don’t know if I’m depressed, but I am—I mean, I think I’m realistic about what this political moment is. And we do this in CNN, is like, well, what do you think the impact of this Trump debacle is? His press conference with Putin in Helsinki. Locking up those kids in cages at the border. Name your scandal. Everything winds up the same. 60-40 against. Every poll, no matter what it is, is roughly 60, 55—60% of the people disapprove of Trump; 35% o 40% approve. And basically, what happened was, Mueller started off somewhat differently, more favorably. But it’s just retreated to the mean. Brett Kavanaugh started off somewhat differently. It retreated to the mean. It’s just an illustration of the incredible tribalism of this moment, where everybody on your side sees things one way, and everybody on the other side sees things the other way.

Preet Bharara: Do you ever look at what’s going on in the country—I know you’re a little bit further removed from the actual practice of law than I am, but—so, maybe this is my prism. But I look at what’s going on and the way arguments are made in the public, and I think to myself, how do you—how do they get away with it? People talk about the death of expertise. There’s also the death of evidence, the death of truth. In the environs in which we used to travel, if you lied, and lied repeatedly and demonstrably; if you used arguments that were about race, or about fear, or that didn’t make any sense, or that were self-contradictory, you got thrown out of court. And the people who were in the position to make the decisions, whether it’s a magistrate judge, a judge, a jury, an arbitrator, even—those arguments and those tactics didn’t prevail. And I’m not—I’m not naive enough to say, well, the court of public opinion is the same as a federal courthouse. I know it’s not. But do you ever think about it from that perspective? Like, how is it so easy to lie this way and to cheat about truth, and to cheat and be corrupt about argument and commonsense, and there’s no price?

Jeffrey Toobin: Let’s discuss your distinguished predecessor Rudy Giuliani. He’s Exhibit A of the phenomenon you’re talking about.

Preet Bharara: Yeah.

Jeffrey Toobin: I mean, look. Rudy didn’t rise to the heights of being US Attorney for the Eastern District of New York, but he was an important prosecutor. [Crowd laughing] And—but he was—he was controversial, but he was a very serious US Attorney. I mean, and they did some very important cases, and he was very effective. And as mayor of New York, sure, he was controversial. But there were a lot of things accomplished during his mayoralty. Now, him ranting on TV about how the FBI are a bunch of thugs, and just getting his facts all wrong, and—

Preet Bharara: Storm troopers.

Jeffrey Toobin: Storm troopers, right. It’s a human illustration of the phenomenon you’re talking about, how the partisanship has degraded his stature so much. But he’s still got that 40% who thinks he’s great. This is not a “both sides do it” phenomenon. This is something that has happened on the right, that the disrespect for truth on the right, political right, is different. [Crowd clapping] And this has come up in the context of these bombings. And there was this congressman from Utah who was on before me on Sit Room, and he was saying, “You know, what I really need—you know, what we really need to do is tone down the rhetoric on both sides. You know, we need to sort of dial it back.” And that’s bullshit. Because the—it’s not—[Crowd cheering and clapping] It’s not Bernie Sanders who is saying, it’s okay to beat up journalists, and that’s funny. And I’m mentioning Bernie Sanders, because you remember that crazed supporter of Bernie Sanders shot Steve Scalise, and that was a terrible thing. But there’s no way you could say that Bernie Sanders encouraged that. But you listen to the way Trump talks about his opponents. They’re evil, they’re enemies of the people. That is a different kind of rhetoric. The recklessness and the dishonesty is different, and it’s all on his side. [Crowd clapping] And I’ll say that in front of any audience in Manhattan of all liberals. And I don’t care. That shows the kind of courage I have. [Crowd laughing and clapping]

Preet Bharara: Maybe even LA.

Jeffrey Toobin: That’s right. And certain parts of Boston.

Preet Bharara: So, you have—this is another segue. I’m mastering the segue in this podcasting life. So, you’re writing a book about some of these topics. And you and I have run into each other, and I’ve asked you. I think it’s a very daunting thing to write a book generally, as I’ve just discovered. But to be asked to write a book about events that, A, are mostly submerged, i.e., what the Mueller investigation is about, an institution that I think is very, very tight-lipped; and then also, the changes day-to-day. So, I know you’re not that far into it. But I’d like to know how you even go about doing that book, and is it orders of magnitude more difficult and daunting than the other books you’ve done that have been backward-looking?

Jeffrey Toobin: First of all, it is very daunting, because this is the most buttoned up organization I have ever seen, particularly in Washington. I mean, Supreme Court justices will actually talk to you.

Preet Bharara: Right.

Jeffrey Toobin: Nobody in the Mueller office will even talk to you. I know some of those people, as you do.

Preet Bharara: That’s right. Yeah.

Jeffrey Toobin: I mean, the directive went out. We don’t talk for the record. We don’t talk off the record. We don’t have coffee. We don’t have drinks. We don’t talk to journalists at all. And that is without precedent, in my experience. Now—

Preet Bharara: Can we pause on that for a second?

Jeffrey Toobin: Sure, yeah.

Preet Bharara: How do you feel about that, as a citizen, as a journalist, and as a former prosecutor?

Jeffrey Toobin: Well, I have different feelings about it as all three of those things. When there is an active investigation going on, it is understandable for a prosecutor to say absolutely nothing, and I respect that. Once a case has been brought and the trial concluded, then I think that you could talk about some things. And the one I wrote about you, the insider trading cases were mostly over, the Skelos and the Silver cases were over. So, I mean, there was stuff we could talk about, but I didn’t even ask you about pending investigations, because I knew you couldn’t really talk about that. So, I think Mueller, for example, could talk about the Manafort case, which is over now. But they have decided to take the completely opposite tack. This is frustrating to me on a day-to-day basis. But again, now putting on my cynical journalist book-writer hat, it’s actually better for me. Because the Mueller story now is almost completely unknown. Who are these people? What do they do? How did they investigate? No one knows. People will read a book about that, you know? [Crowd laughing]

Preet Bharara: Right.

Jeffrey Toobin: I am gonna take my time. I mean, look, I got nothing to write now. Nobody’s talking to me. But just journalistically, what you do is—there are a lot of defense attorneys who are involved. You talk to them about their dealings with the office. You talk to witnesses about what their [inaudible] [00:31:53]. So, you can sort of report around, which gives you a good background, but it’s not the meat of the story.

Preet Bharara: Let’s jump to the Supreme Court.

Jeffrey Toobin: Okay.

Preet Bharara: Did Brett Kavanaugh lie in his confirmation hearings?

Jeffrey Toobin: If I had—based on the evidence that I have seen, probably. As with Clarence Thomas 27 years ago, the scandal of the Kavanaugh nomination or the significance of it is really in the first part of the hearings, not the second part—is that when you see what Brett Kavanaugh stands for and how he will vote as a justice, what he did or did not do in high school is certainly significant, and I think is disqualifying in and of itself. But if you want to talk about the Supreme Court as an institution and the decisions that will come out of the court, which ultimately is why the court matters, that’s the real peril to me of the Kavanaugh nomination, not the fact that he has bad behavior in his background.

Preet Bharara: Right. I mean, that’s fair. My question about the future is this. Because you invoked Clarence Thomas just now, who had a difficult confirmation hearing—a lot of people have very strong views about him. I do. And you wrote something interesting. You said—this is way back, early in his tenure. You wrote that, “Justice Thomas’s jurisprudence seems guided to an unusual degree by raw anger. And that anger emanated from the difficult time he had getting confirmed and the allegations made against him. And as we all saw, as Matt Damon has exemplified, a lot of raw anger in that second portion of the hearing, where he made accusations against Democrats in particular, when he talked back to senators in a way that even he thought momentarily he had to apologize.

Jeffrey Toobin: Just for one of the sentences.

Preet Bharara: For one of the—yeah.

Jeffrey Toobin: Yes. Amy Klobuchar. No apology to Sheldon Whitehouse.

Preet Bharara: Correct.

Jeffrey Toobin: Just for those who are keeping track.

Preet Bharara: But my question is—and obviously, it’s impossible to know—do you think that he is gonna be influenced by his anger, as you perceive Thomas was, for years going forward?

Jeffrey Toobin: Probably. Probably. But he’s so conservative and so determined to push that agenda, it’ll probably be hard to tell, because he would have voted the same way anyway.

Preet Bharara: The delta is not that big. There was that exchange between Senator Whitehouse, who, to his credit, became a senator by way of being United States Attorney and Attorney General, so he has some prosecutorial chops. And he got into this exchange that made you cringe on one hand, because it was about his high school yearbook, but on the other hand made you think, whoa, what’s going on here? And Sheldon Whitehouse, to me—and maybe I’m in the minority here—when Sheldon Whitehouse—just as a pure sort of observational matter as a lawyer and a prosecutor, he asked Brett Kavanaugh the question, “What’s a devil’s triangle?” And he sort of asked it in a way, to me, at least, you might ask your child who you suspect has done something bad and who will lie to you, and has not been smart enough about having a higher order lie. [Crowd laughing]

So, you know, “Where were you?” And they’re like, “I was at Joey’s house.” “Who else was there?” And he’s like, “Oh shit, I didn’t—I didn’t come up with that.” “What did you guys do?” Because you and I know, right, and a lot of lawyers, simply asking questions and detail quickly explodes lies. And I don’t now the truth, but I have a suspicion. And Sheldon Whitehouse said—and again, it seems unseemly. It’s from high school, and it’s—what Urban Dictionary is unfortunate. My son doesn’t need to know what Urban Dictionary is.

Jeffrey Toobin: Yeah. Don’t look at Urban Dictionary. [Crowd laughing]

Preet Bharara: And he says, “Next time, in fact, you should probably stay home and do your homework.” [Crowd laughing] And he says, “What’s the devil’s triangle?” And Brett Kavanaugh looks him dead in the eye. “It’s a card game.” And then Sheldon Whitehouse says, “How’s it played?” [Crowd laughing] And I remember thinking—well, you can tell me what you think—that this was a gambit that ended up not—kind of fizzling out. But had it succeeded in the way it might with your child, who is not destined for the Supreme Court, it would have been the most explosive thing in the hearing. And so, I’ve heard these people say, “Well, why are you asking about the yearbook?” But I understand the mindset. You have to be thinking, this guy is lying about that, and it’s a stupid lie, and it’s in some ways a frivolous lie, but is endemic of what this person is about.

And then he asked the question, and Brett Kavanaugh looks right back at him. “There’s three cups, and you put ‘em in a triangle.” And then, I’m like, holy cow. And then Sheldon Whitehouse says, “Okay. What else?” So, he’s going to the next levels. And we’ve all seen, in court, that unravel the witness very quickly. Brett Kavanaugh’s like, “You familiar with”—he responds with a question, which, “Are you familiar with Quarters?” without answering in great detail, but suggesting without saying so that it’s some weird game that no one in the world has ever heard of with three cups, and you throw quarters into the cups. At that point, I guess, Sheldon Whitehouse, being an experienced cross examiner, realized, I’m not gonna get anywhere with this guy because he is such a liar. I don’t know if this is what he was thinking, but that’s what I was thinking watching him. So, I found that extraordinary.

Jeffrey Toobin: Well, that—well, and the other thing about—I remember that exchange. And the thing that was so maddening about the whole second chapter, the Dr. Ford and response testimony, was that the senators only had 10 minutes. And even good prosecutors can’t do much with 10 minutes. Plus, Kavanaugh knew how to filibuster. And you can answer any question with two or three minutes.
Senator, let me put that in context.” Oh, God. That eats up the time. So, I mean, as a fact-finding enterprise, that was destined to be and set up to be a standoff.

Preet Bharara: Yeah. I mean, that’s true of every Congressional inquiry, and I led one myself.

Jeffrey Toobin: Right.

Preet Bharara: There are multiple things. But the two things that I think that cause you never to be able to get to finality or a conclusion, or, depending on your perspective, truth, is, A, what you just said, the limits. Because the luxury you have in court is, dude, you could filibuster for an hour or for two.

Jeffrey Toobin: Right.

Preet Bharara: But I’m gonna come—I’m coming back tomorrow. I’m asking the same question again. I’m gonna do it again. And I have no cameras, and I don’t have to worry about the public. I don’t have to do any of that stuff. And the second thing is that there’s no arbiter, right? You have a chairman, but you have no judge, like Judge Ellis, or Judge [?Bukazy] [00:38:47], or Judge Rakoff, or whoever, who can say to one side, “You know what? That’s not proper. Stop that.” So, all sorts of impropriety happens on every side, and you never get to a conclusion.

Jeffrey Toobin: Well, and—and there’s no one to say, “Answer the question.”

Preet Bharara: Right.

Jeffrey Toobin: If a witness tries to filibuster in response to a question in a courtroom, the judge—they usually try to stay a certain degree of neutral. But ultimately, a judge says, “No, you have to answer the question.” And no one does that purpose.

Preet Bharara: We’re running out of time, but I want to ask you one more Supreme Court question.

Jeffrey Toobin: Okay.

Preet Bharara: And then the lightning round. You said, sort of in a dramatic way—you made a prediction about how long Roe v. Wade would be the law of the land. What was that prediction?

Jeffrey Toobin: 18 months.

Preet Bharara: Do you stand by that?

Jeffrey Toobin: Yup. There’s a case coming now, which is the first. Indiana passed a law that said women can no longer have abortions for sex selection or—a list of reasons you can’t have an abortion. The Seventh Circuit struck it down as unconstitutional. That’s gonna be the first case that they get. They will uphold that law. And then, the state representatives, they follow the news too. And South Dakota, Mississippi, Alabama—they’re all just gonna ban abortion and dare the courts to overturn it. And people try to sound sophisticated, and they say, “Well, you know, John Roberts, he’s gonna want to do it slowly. They’re gonna limit Roe v. Wade, but they’re not gonna overturn Roe v. Wade.” If you have a state that bans abortion outright—you can’t uphold that law and leave Roe v. Wade intact. And during the campaign, Donald Trump said repeatedly, “I will appoint justices to the Supreme Court who will vote to overturn Roe v. Wade.” And what I think he meant by that was, he will appoint justices to the Supreme Court who will overturn Roe v. Wade. [Crowd laughing] And I think that’s what he’s done.

Preet Bharara: Yeah.

Jeffrey Toobin: And, you know, elections have consequences.

Preet Bharara: They do.

Jeffrey Toobin: Yeah.

Preet Bharara: We’re gonna end on that in a minute, about how important elections are. Quick lightning round.

Jeffrey Toobin: Okay.

Preet Bharara: These are yes or no. They’re mostly easy.

Jeffrey Toobin: All right, well.

Preet Bharara: Have you ever been body-slammed? [Crowd laughing]

Jeffrey Toobin: No. I wrote my first sports column for the Harvard Crimson. I had a column—

Preet Bharara: Called?

Jeffrey Toobin: Inner Toobin. It was a good—it was a good name. Often the best part of the column was the name. It was sort of like a George Plimpton thing. I tried out for the Harvard Boxing Club. So, I was knocked down, but I was not body-slammed.

Preet Bharara: Have you ever body-slammed someone else?

Jeffrey Toobin: No.

Preet Bharara: Have you ever played Devil’s Triangle? [Crowd laughing]

Jeffrey Toobin: You know, Brett Kavanaugh and I are roughly the same age. I’m a little older. But as I went through his yearbook entry, I guess I led a more sheltered life than I thought, because I didn’t know what the hell he was talking about during a lot of that.

Preet Bharara: Will Roger Stone be indicted?

Jeffrey Toobin: You know, that’s really an interesting question. I don’t like to brag, but I’m kind of the Boswell of Roger Stone. I did a profile of Roger Stone in the New Yorker which opened in a sex club in Miami, which—just parenthetically—it was the single best expense report I’ve ever turned into the New Yorker. [Crowd laughing] But no, Roger is a fascinating figure for many reasons, because in most of life, in law enforcement, in journalism, people tend to underplay the bad things they’ve done and overplay the good things they’ve done. Roger is the opposite.

Preet Bharara: Right.

Jeffrey Toobin: Roger like, pretends he did more bad stuff than he’s actually done. So, it’s very hard to know sort of where he fits during all of this. But so—

Preet Bharara: So, I will remind the witness that this is a lightning round.

Jeffrey Toobin: Oh, I’m sorry. I apologize. [Crowd laughing] Would you like to hear about my sex club—

Preet Bharara: So, is he gonna be indicted?

Jeffrey Toobin: I think not, actually.

Preet Bharara: Whoa.

Jeffrey Toobin: Mm-hmm.

Preet Bharara: Whoa.

Jeffrey Toobin: Yeah.

Preet Bharara: Okay.

Jeffrey Toobin: Okay, sorry. That’s . . .

Preet Bharara: Will you be replacing Megyn Kelly? [Crowd laughing]

Jeffrey Toobin: Will I be replacing Megyn Kelly? I guess my knowledge that blackface is actually like, a bad thing would qualify me, but no, I will not be replacing her.

Preet Bharara: In the following Texas cage match, Dershowitz versus Giuliani, [crowd laughing] Jeffrey Toobin puts his money on?

Jeffrey Toobin: Rudy.

Preet Bharara: Ah.

Jeffrey Toobin: Rudy, yeah. Yeah. Rudy’s—you know, he’s like—he’s a tougher guy.

Preet Bharara: Final question.

Jeffrey Toobin: Yes.

Preet Bharara: Has anyone ever finished a New Yorker article? [Crowd laughing and clapping]

Jeffrey Toobin: Like, I write 7,000 words about this guy, and—

Preet Bharara: I couldn’t finish it.

Jeffrey Toobin: And this—he couldn’t—

Preet Bharara: Even my dad. It might have been because of the [?beard] [00:43:58]. But he’s like, “This is very long.” [Crowd laughing] “I love you, son, but it’s just too long.” We gotta—we gotta wrap up. I have a couple of final words, but before I do that, big round of applause for Jeffrey Toobin. [Crowd clapping]

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