Stay Tuned: The Kavanaugh – Trump – Schiff news cycle (with Susan Hennessey)

Stay Tuned: The Kavanaugh – Trump – Schiff news cycle (with Susan Hennessey)


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

Susan Hennessey:         The way I think about it is imagine you learned the story of your favorite novel through completely accurate, unbiased, fair news headlines about it. So man hunts whale, boats sinks, right? The major plot points laid out for you. Even if it was completely fair reporting on the story, you wouldn’t get to the end and say, “I understand what that book is about.” The Mueller report is more like a book.

Preet Bharara:              That’s Susan Hennessey. She’s the executive editor of Lawfare, the legal and national security blog that’s taken off in the Trump era. She writes about some of the thorniest challenges we face today, strains on the rule of law, public accountability, and the integrity of our democratic institutions. We talk about the public’s growing appetite for wonky topics, the latest controversy around the confirmation of Justice Kavanaugh, and what to make of Representative Adam Schiff’s urgent letter to the director of national intelligence about a whistleblower complaint. But first, let’s get to your questions. That’s coming up. Stay tuned.

Preet Bharara:              Hey, Stay Tuned listeners. We’re taking the Stay Tuned podcast on the road this fall. On November 5th, we’ll be in Minneapolis in the great state of Minnesota. Joining me is former marathoner, city councilman, civil rights attorney, son of professional ballet dancers. And now still in his thirties, mayor of the city, Jacob Frey. In addition to Minneapolis, I’ll be in Atlanta with Sally Yates, in Denver with Shannon Watts, and in Detroit with Attorney General Dana Nessel. To get tickets and details of all these upcoming live shows, head to That’s

Preet Bharara:              Here’s a question via email from Valerie in Seattle who writes, “I gather that over the course of your career, you’ve been exposed to classified information that you’ve had to keep secret. We’ve recently seen the president have a tough time tweeting our classified photos and so on. So I’m curious, how hard is it to keep secrets, to keep track of what you’re allowed to say, and what you aren’t allowed to say? How do you keep track of who has the same clearance level as you do? Do you get to tell your spouse things that you can’t tell anyone else. Are there tips or tricks for tracking all of this?” Thanks Valerie for your question.

Preet Bharara:              Look, if you’ve been entrusted with information that is so sensitive, only a limited number of human beings in the country are allowed to have it. And then there were even higher levels of classification where even within your own office or your own agency, only certain people are allowed to know certain sensitive compartmented information. Then you learn how to keep your mouth shut, and you learn to have certain kinds of conversations only in a thing called a skiff where other people are not around, and there are precautions taken so that there can be no outside surveillance or interception of those conversations. You make sure that when documents come to you from a safe, they’re hand delivered to you and then hand delivered back to the safe. I had a safe to my office. I also had a phone next to my regular phone in which I could have certain kinds of sensitive conversations about classified information. Every once in a while, that phone would ring out of the blue. Literally one time it was a pizza delivery guy. It made me worry a little bit about the security of the phone, but I guess these things happen. Generally speaking, people who are in receipt of that kind of information never talk about it. And when asked, they steer clear of even giving any impression about what may or may not be true.

Preet Bharara:              I mean in the ordinary course, if you’re behaving properly and you have classified or otherwise sensitive information, nobody knows enough about it to even ask you a question about it. As to your spousal question, I can tell you I was very, very careful about that. There was a period of time in the spring and early summer of 2010 when my office was putting together that notorious case against the 10 Russian spies. One of whom was Anna Chapman, who later got traded for spies. I was on vacation. And on more than one occasion during the beach vacation with my wife, I got called directly from Eric Holder to talk about that case. I didn’t tell her what it was about, I didn’t tell her what the case was about. I didn’t tell her it existed. All of that was discovered by members of my family the same time it was discovered by members of the public, which is the appropriate way to go about things.

Preet Bharara:              It’s actually not that hard, I don’t think. If you’re just keeping your mouth shut, keeping your head down, and understanding the sensitivity of the information that’s being entrusted to you for good reason.

Preet Bharara:              This question comes in an email from [Christine] in Minnesota. Christine, you should come to the live show in Minneapolis on November 5th. She writes, “Hi Preet. If the DOJ decides to proceed with an indictment of Andrew McCabe, will McCabe be entitled to all discovery items or might they be restricted by the DOJ? Same question regarding witness subpoenas, depositions, and unhampered testimony without the DOJ claiming a privilege, national security, or other confidentiality.”

Preet Bharara:              Thanks for your question, Christine. Look, it’s a criminal case if they choose to bring one. And you’ve heard me and me and Anne together talk about our views of the propriety of bringing such a case. But as with every other criminal defendant who was brought up on charges by a federal grand jury, the defendant, hypothetically Andy McCabe, would have all of his rights intact. Should be able to view all discovery that relates to his case, which is included but not limited to anything that the government would plan to use in court against him. And all sorts of other material that would tend to impeach witnesses that the government might intend to call, or otherwise bear on his liability. And of course, anything that is deemed exculpatory.

Preet Bharara:              So in the ordinary sensitive case when you might be bringing a criminal charge involving someone at the highest levels of the law enforcement community where classified information might be involved, I don’t see how any of that is at play here if an indictment is filed. And it flows along the lines of what the inspector general talked about. As Anne and I discussed this past Monday on the CAFE Insider podcast, it’s a pretty straight indictment on false statements if they choose to bring one. None of which, as I can recall, really deal with classified information. Some of it might be sensitive government information, but I don’t see any reason why Andrew McCabe should be precluded from having absolutely all the information that’s required for him to be able to mount a proper, vigorous defense.

Preet Bharara:              There are circumstances in which, although I don’t think they apply here, that you want to be careful when you’re in the government in providing information that might compromise sources and methods or otherwise impinge on national security. And there are various options for dealing with that. And again, cases that are not like this one as I understand it.

Preet Bharara:              Among other things, the government can go to the court, as we say ex parte, and ask that some information be permitted not to be disclosed. In a way to make sure that it doesn’t prejudice the defendant. There can be for your eyes only documents produced so that they don’t come into the public domain, in very rare circumstances. There’s information that can be provided to lawyers but not necessarily to the client. That’s really rare. But to take your question more broadly, there are all sorts of ways to make sure that a defendant in the criminal system gets a fair trial, a vigorous defense, and the government at the same time doesn’t compromise national security. Sometimes it’s the case by the way, and this happened to us from time to time. The only way for there to be a fair trial would be to provide information that was so sensitive, we would sometimes have to make a decision with our law enforcement partners not to bring the criminal case. Again, this doesn’t seem like that. It seems like a straightforward case, whether you like it or not. False statements made about Andy McCabe’s conversations with the press. But the larger question is still a good one.

Preet Bharara:              This question comes in a tweet from David [Vasangani 00:07:32]. Who says, “@PreetBhara and Anne Milgram. Can we get your thoughts on representative Adam Adam Schiff’s DNI letter? #AskPreet.”

Preet Bharara:              Well, we’re going to do one better so you don’t have to wait until next Monday when we do the CAFE Insider podcast. You’ll hear in the interview that follows with Susan Hennessey, she and I have a pretty robust conversation about the letter you’re referring to, in which Adam Schiff takes great umbrage, sounds actually as angry as I’ve heard him. Trying to get information about what seems like a legitimate, bonafide whistleblower complaint within the intelligence community. What it all means, we’ll talk about shortly.

Preet Bharara:              My guest this week is Susan Hennessey. She’s the executive editor of Lawfare, a blog that tackles some of the most pressing legal and national security issues today. Hennessy also served in the office of General Counsel at the National Security Agency. And she’s now a Brookings senior fellow in national security law. We talk about Lawfare’s new podcast called the report, which tells the story of Mueller’s investigation. We also got into whether the country should focus on impeaching president Trump, or a certain supreme court justice. Whether allies like Israel actually do spy on the United States, and the inner workings of the National Security Agency. That’s coming up. Stay tuned.

Preet Bharara:              With HelloFresh, America’s number one meal kit, you’ll get easy seasonal recipes and pre-measured ingredients delivered right to your door. HelloFresh makes cooking delicious meals at home a reality, regardless of your comfort in the kitchen. Step-by-step recipes, premeasured ingredients, HelloFresh gives you everything you need to get a wow worthy dinner on the table in just about 30 minutes. Say goodbye to endless grocery store trips and stale takeout. HelloFresh offers something for everyone. Family recipes, calorie smart, vegetarian, even craft burgers. And it’s so flexible. Easily change your delivery days, food preferences, and skip a week whenever you need. Add extra meals to your weekly order, and add-ons like garlic bread and cookie dough. HelloFresh knows the devil is in the details. My ingredients arrived in a sturdy, well-insulated package. So I could trust that they were fresh and ready to whip into a meal. Plus, you don’t need to have anything on hand except for the staples like a little salt and pepper.

Preet Bharara:              For people with packed schedules like me, it’s nice to trust that a substantial meal for two can be delivered right to your door. For $80 off your first month of HelloFresh, go to and enter code stay tuned 80. That’s like receiving eight meals free when you go to and enter stay tuned 80.

Preet Bharara:              Stay Tuned is supported by Vistaprint. The most important time is now. Feel professional, polished, and prepared when accounts. Right now. Being ready for an opportunity is crucial. And having a business card from vista print is the first step to making something happen. Vistaprint is here to help you own the now, with free shipping on any business card in any quantity. You get to choose whatever style, finish, shape, or paper you like, and get free shipping. Because you can pick the fonts, designs, and more, it means you can create something as unique and compelling as your business. You can feel good knowing that Vistaprint uses only carefully selected inks and responsibly sourced paper stocks. Your satisfaction is 100% guaranteed, or your money back. Vistaprint wants you to be able to own the now in any situation. Our listeners will get free shipping on all business cards. Any style, any quantity. Just to go to and enter promo code Preet for free shipping on all business cards, any style, any quantity. Limited time offer. Own the now at, promo code Preet. You support our show when you support our sponsors. Susan Hennessey, thank you so much for being on the show.

Susan Hennessey:         Thanks for having me.

Preet Bharara:              So there’s a lot to congratulate you on. One, the continued success of Lawfare, the blog, and the various podcasts. And you have a new podcast called The Report, which is all about the work of the special counsel’s office, Bob Mueller. And then you and Ben Wittes, my friend and former guests on the show, have finished a book which is coming out in a few months. So are you tired?

Susan Hennessey:         I am. I have already proclaimed myself as having finished my last book. Although people tell me that the further away we get from being done, the warmer my memories will become of book writing.

Preet Bharara:              Yeah. Anyway, I think that’s terrific. I think I’m going to host your book launch in New York, come January.

Susan Hennessey:         You are, and we are very excited.

Preet Bharara:              I can’t wait. So let’s talk about Lawfare for a moment. This is a legal blog of sorts, started a few years ago, that I rely on. I know a lot of folks both in and out of the legal field rely on. You have a lot of great writers. You get to the heart of the matter. There’s good analysis. What was the point of starting Lawfare?

Susan Hennessey:         The point of starting a Lawfare who was to speak to and become a resource for a community of national security legal practitioners. I would define the original readership. This blog was originally funded by my colleague Benjamin Wittes and Jack Goldsmith at Harvard. And Bobby Chesney, who’s a law professor at UT Austin.

Susan Hennessey:         I’m a little bit speaking for them here, but I think there was a little bit of a sense around 2010 when the blog first launched that the public conversation about national security was really being dominated by this civil liberties conversation or human rights conversation. The way we were talking about things like Guantanamo Bay or the global war on terror. And that that was an important conversation, but one that didn’t have a lot to do with the way people in the United States government made decisions on a day to day basis. Decisions are really, really important in the national security field. Or the way academics thought about the specific questions of war powers, and surveillance authorities, and executive power, and the relationship with Congress that there was just this gap in the conversation.

Susan Hennessey:         I think the Lawfare originally, the genesis of it was to spark a conversation in that space. It ended up evolving into something pretty wonky and detailed, and really in the weeds. And they’re looking to understand these issues in a less intermediated kind of way. So we’ve had just a really explosive growth of readership. And I’ve thought a lot about what that means for the site, what that means for the future, but it’s certainly been exciting.

Preet Bharara:              So you talked about explosive growth. And one of the things that you folks have put out is a new podcast called The Report. It’s terrific and people should listen to it for the content it has and for among other reasons, you guys will have a particular guest on upcoming episodes. Me, I did a nice interview with Quinta Jurecic last week about my favorite volume of the two volume Mueller report. What was the thinking behind that? The report was available to everyone. You could order it on Amazon with your choice of introductory sections. It’s by different authors. You can get it bound. I know it’s long, 448 pages. What was the point of doing a podcast on that which is already public?

Susan Hennessey:         Yeah, so the podcast is really a narrative adaptation of the Mueller report. It sounds a little bit like you’re listening to a true crime podcast. There is narration, and there is Ben Wittes reads portions of the report. And then there’s context and explanatory material both by analysts like yourself, and also some of the journalists that first reported these stories as they were happening in real time.

Susan Hennessey:         What we’re really doing is trying to break down the report in a way that’s really accessible for people, but not just at the summary level. Not just for people who are too busy-

Preet Bharara:              Not just at the Bill Barr summary level.

Susan Hennessey:         Certainly not at the Bill Bar summary level. But people aren’t just trying to understand this document with the big takeaways. They do want to engage with the particular substance. They want to get into the details. But it needs to be broken down and presented in a different way. We first launched the first episode of volume one. And all of volume one is now out and volume two, which of course will feature yourself. Will start this coming Friday.

Susan Hennessey:         And we thought, are we crazy to be putting out a podcast on the Mueller report starting in July? We’re going to go all the way into October. Is everybody moved on? Are we perseverating on this thing that nobody really cares about anymore?

Preet Bharara:              Wait, what was that word you just used?

Susan Hennessey:         Perseverate.

Preet Bharara:              Okay, you win the big word of the day contest.

Susan Hennessey:         There we go. That we were continuing to obsess over this thing that everybody else had moved on. And yet we saw this really astonishing response. We didn’t do anything in terms of PR, or rollout, or anything like that. And launched it number one on Apple Podcast, and we’re well over a million downloads at this point. I think the numbers speak to the idea that people still really want to understand what’s in this document. They’re still really struggling to do that. That the interest is there, they understand it’s important. And that while there’s been a lot of different attempts from people making plays, or graphic novels, or trying to condense it down into summary. There’s still an appetite for just understanding what happened, understanding what happened in context. And not in a hot takes, the political commentary. But just the story because it is so incredibly important. And traditional media is just inadequate to actually explain this in a way that effectively conveys what’s in it.

Preet Bharara:              What would you say based on your expertise and helping to make this podcast The Report, what’s the biggest misconception that people have about the Mueller report and/or what is the most confusing thing about it?

Susan Hennessey:         So I think there’s a million things that are confusing about this document. And every time I hear Mueller say the report speaks for itself, I want to scream like what are you talking about it? It does not.

Preet Bharara:              I don’t know why he perseverates on that point.

Susan Hennessey:         I think the biggest misconception is the idea that you can understand the Mueller report by having followed along with the headlines. The Mueller report is a cumulative document. And the way I think about it is imagine you learned the story of your favorite novel through completely accurate, unbiased, fair news headlines about it. So man hunts whale, boat sinks, right? The major plot points laid out for you. Even if it was completely fair reporting on the story, you wouldn’t get to the end and say, “I understand what that book is about.” And the Muller report is more like a book in the sense that it lays out something cumulative. It lays out a series of events that builds on one another, that are related to one another. Volume two is related to volume one, and you have to understand what that investigation was, and how important it was to really understand how shocking it is that the president would be trying to impede, or impair, or obstruct it.

Susan Hennessey:         So I think that’s the biggest misconception that people think look, we’ve been hearing the headlines here for two years. The Mueller report came out, and the only question was what is the new information, the marginal new information? And I think that’s really the wrong way to understand it. It’s the confirmation, it’s the full record of what we can say happened, and what we can’t say about what we know at this point. So I think that’s the biggest thing, at least that the media has gotten wrong about the significance.

Preet Bharara:              You made a couple of I thought good analogies just now. As if the Mueller report requires explanation because it’s a work of literature. There’s a lot of excavation that goes on later because not all of it is clear. You don’t get a sense of the characters, you don’t get a sense of the themes. If you’ve only learned about the plot and some of the conclusions, is it a failing of the report itself then that this excavation and further explanation is necessary? Or is that just the nature of reports like this?

Susan Hennessey:         I don’t know that it’s a failure of the report. I certainly think the report doesn’t speak for itself, or isn’t as clear as Robert Mueller might think. That said, it’s all there. This is an astonishing document. It just is. And it really is an almost maddeningly fair one. Right? There are so many places in which Muller extends the benefit of the doubt, and really is careful in saying what the evidence establishes, what it demonstrates, what you can conclude, what you can’t say. I think Muller really had this sense that his job was to put this document out into the world. Whatever we were going to make of it, that was somebody else’s job, that his work was done right. I think the problem is that Congress hasn’t been able to engage with it. That in some ways, the response has fallen in this weird no man’s land of we were throughout the entire Mueller investigation, we heard Congress saying, “Let’s wait for the Mueller report. Let’s wait for the Mueller report. We’ll see what he’s concluded.”

Preet Bharara:              He didn’t make final conclusions with respect to obstruction. So do you think expectations were too greatly raised?

Susan Hennessey:         I think they could have anticipated this situation, right? Mueller lays out damning facts, and then doesn’t take the additional step of reaching the conclusions. So congress and the public didn’t know what to do with that. And I think that was foreseeable. So the expectations of Mueller is going to be the final determiner here. He is going to decide whether or not a crime was committed or not, whether or not this was okay.

Preet Bharara:              He said Congress didn’t know what to do with it. Isn’t that a failing of Congress? If the document is how you view, particularly volume too. And how I tend to view it, isn’t it very clear what congress should do and proceed in some form with, I don’t know what they want to call it these days. An impeachment, inquiry, impeachment proceedings, etc. Isn’t that abundantly clear. Why so much confusion on the part of Congress in the face of what you describe and I agree with you is an astonishing document?

Susan Hennessey:         So, I think we are seeing a serious failure in Congress. And we’re seeing the beginnings of it wakening itself to this obligation. I think above all, Congress has failed to make the case to the American public. And failed to understand, we hear Nancy Pelosi talking about it as if she’s awaiting to see what the public is going to tell her. When Congress’ job is to lead here and to help us wade through these facts. And not to just point the fingers at everybody else who’s getting things wrong. Myself and analysts like me may have made a mistake in overly legalizing things. Talking about the Russia investigation, and the Mueller report, and its findings both when the report came out and as we were learning about it in real time. Through this very legalistic lens of were the statutory elements met, and here’s the elements of obstruction of justice, and can we check that box, and could we prosecute him in a court of law?

Susan Hennessey:         Because that was something concrete to point to, to understand this completely unprecedented norm shattering thing we were seeing and we were seeing the president do. And the problem is of course that’s not really the task for Congress. And the question isn’t really whether or not every element of obstruction of justice is met so the president can be prosecuted and put in jail. It’s whether or not this is acceptable, whether or not the constitutional remedy, which is of course impeachment. Whether or not that is an appropriate response by seeking refuge in the statutory language, which I think for lawyers feels comforting, and fair, and it gives you something you can parse and analyze. That also helped create an expectation that the only way that this could be resolved was a proclamation from the Department of Justice. Was a crime committed? If so, that’s bad. Or wasn’t one committed? And if so, it’s all fine. And of course that’s not the reality.

Preet Bharara:              And anything short of that, Trump and his folks say is total exoneration. But I wonder again, does that feel like there’s a little bit my asking who to blame for everything, so [inaudible] people. But on this question of how the standard got set, so long as it falls short of a readily provable crime, then it’s all Hunky Dory. I wonder on whose shoulders that blame lies. Because I’ll tell you along the way, year and a half ago when we started to hear about things like the Trump Tower meeting and the firing of Jim Comey, and all sorts of things that it was too early to say are the elements of obstruction made out or some other crime. Finance, campaign finance crime. Separate apart from any of that certain conduct that was irrefutable that the public was becoming aware of, is easily defined as horrifying, terrible, and an abuse of power.

Preet Bharara:              And my own followers on social media, Twitter, and elsewhere would respond by being kind of annoyed with me and saying, “It’s too early to say. Of course it’s a crime. Why can’t it be a crime? Why are you ruining my day?” As if I was suggesting there wouldn’t at the end of the day be an indictment, which of course I think people like you and I were saying because of the office of legal counsel memo. So whose fault is it that we got into a place where it’s helpful both to the president who’s engaged in what I think are tremendous abuses of power, where anything short of a scandalous and readily provable indictment, criminal indictment, means it’s okay?

Susan Hennessey:         So I don’t know that it’s anybody’s fault or it’s everybody’s fault I suppose. But I think it is the boiled frog phenomenon. When you take these pieces on their own, the president was negotiating a Trump Tower, Moscow deal. Well that doesn’t look great, but I don’t know. It’s not against the law. And then he lied about it. Well that’s not great, but it’s not a crime to lie to the American people. And well, then he told Michael Cohen or maybe didn’t express the do so. All of these pieces are coming out little by little. So you’re analyzing all of them on their own terms. So you can lose the significance.

Susan Hennessey:         Not to put everything back to our own project here, but this is one of the reasons why I think this podcast and taking the time to tell this story in a methodical way now, even after the news cycle has moved on, is really important. And I would encourage people, even people who read the report and really were informed consumers about this. To go back and listen to these stories being told one after the other. And remembering the timeline, allowing the story to unfold.

Susan Hennessey:         One, I think it’s just astonishing how much you forget. And I said that of people like me. I’ve read this document many times and my professional life was focused on it for the better part of the past 18 months. There are still things that I forget as oh God, that happened. That’s right. Or wow, those two things happened on the same day. I didn’t realize that.

Susan Hennessey:         I do think that there now is a little bit of an obligation, right? How did we get into this mess? I don’t know. But we’re here. We are seeing, I think a failure of leadership in Congress or certainly insufficient leadership in Congress.

Susan Hennessey:         The American people are going to have to get out of this themselves. And the way out is not to pick our favorite pundits and just repeat the headlines, but instead to go back to the primary source document and say okay, what happened, and why, and what is the nuance, and what is the places in which you do have to be fair to the president? He is the head of the Department of Justice. And that is kind of complicated. And the reason why I think we have this obligation to do our own homework on it, and I hope we’ve made it easier through those podcasts. Is not just because of course that impacts whether or not we’re going to have an impeachment inquiry or ultimately impeach the president, which is important and maybe appropriate. But also because absent that, the decision here is going to be made by the American people in November, 2020.

Susan Hennessey:         We really need to think about the office of the presidency, the powers of the presidency, what Donald Trump is doing with them. And the Mueller Report offers a snapshot of that, but by no means the full picture. And decide, do we want to ratify that? Because if we look historically, and I’m getting into Ben and my book at this point, the office of the presidency has evolved a lot over time. It’s changed. It is elastic. Some presidents are just aberrations, right? Andrew Johnson does things and nobody else ever tries to do them again. And that’s because he doesn’t win reelection. But whenever a breaches norms and then is reelected or is not impeached, it’s viewed as allowable, then the office itself changes.

Susan Hennessey:         So we really are I think at a precipice. And this document, and going back to the Mueller report, and starting from the beginning, and getting rid of those assumptions about what you think you know. I do think is important and incumbent on citizens.

Preet Bharara:              Now here we are, we’re recording this middle of September. The election is less than 14 months away. It seems like Nadler’s committee, the judiciary committee gets stymied on a regular basis. They’re in litigation with respect to some documents. There’s an argument as we speak about whether or not Corey Lewandowski should be able to answer certain questions and not answer other questions. What is this house strategy if there is one, and what should it be?

Susan Hennessey:         I don’t know that anyone could tell you what the house strategy is. It’s certainly difficult to discern from the outside one portion of the house or the Democrats in the house want to impeach the president and want to engage in a serious impeachment inquiry that involves hearings of fact witnesses, and both for the conduct described in the Mueller report, and also for ethics violations, and all kinds of other crazy things that we see, I think on a near daily basis. There are other Democrats in the house that don’t want to do that, presumably because they believe that there’s political cost to that. And the evidence for whether or not that’s true or not I think is pretty complicated. So you have one group that’s dragging the other group kind of kicking and screaming.

Susan Hennessey:         So we’re seeing this weird game being played where they don’t want to use the word, they’re tiptoeing up to the line. And Nancy Pelosi is saying things that to me are absurd. Like he’s self impeaching, which what does that mean? And this game playing. And I think that this reticence actually is undermining the basic premise. Which is that the constitution tells Congress, and they tell the house specifically that they have this obligation to determine when impeachment is appropriate. When you have members both saying this is impeachable, and it’s self-impeaching, and it’s egregious, and people should be talking about the 25th amendment. And this is just the worst thing in the world. Oh, but I don’t know that I want to go down the impeachment inquiry road. It really undercuts the message.

Susan Hennessey:         So it’s not a failure of strategy. It’s a failure of political courage and saying, “We are examining for ourselves,” each member, “What the constitution asks us. And we swore on oath, and we represent our constituents, and we have an obligation.” I think we are seeing a real failure at the leadership level to come out and say. Maybe it’s good, maybe it’s bad politically. It’s the right thing to do. And at the end of the day when it’s not clear whether or not it’s going to help you win votes or hurt you in winning votes, you might as well just do the right thing since nobody actually knows what’s going to happen.

Preet Bharara:              So this word impeachment has been thrown around in a different context over the last few days. And I saw you on social media comment on it with respect to supreme court justice Brett Kavanaugh about whom there have been some new allegations in a New York Times article, which has its own controversy about it. Previously I guess unknown or unreported sexual misconduct allegation from his freshman year at Yale. Multiple presidential candidates on the democratic side are calling for the impeachment of Brett Kavanaugh. Does that call for impeachment based on what is available so far? Does that undermine the first thing we’re talking about, impeachment of the president of United States? Or dilute that term.

Susan Hennessey:         When we’re talking about the president, we’re talking about impeachment without removal. Impeachment plays a really important normative constraint and function. Because of course all presidents who have been impeached, none have actually been removed. Because we have electoral mechanisms. Impeachment without removal is actually its own thing when we’re talking about the president of the United States.

Susan Hennessey:         When we’re talking about a supreme court justice, impeachment without removal is nothing. It’s just a failure. So I think we have to examine that question really differently. Is there any reasonable probability that this person will be removed from the court? I think in this case, that’s clearly not the case. And I actually don’t know that there is enough evidence for impeachment, which is of course very serious at this point. That said, this new report is incredibly disturbing. Not because of this new allegation, which is an allegation of somebody who said that they witnessed something. It turns out that the victim or alleged victim herself, she says she doesn’t remember this incident. So put aside this question of is there a new allegation. The significant thing in this reporting is one that an allegation in addition to Christine Blasey Ford’s allegation. Debbie Ramirez, one of Kavanaugh’s classmates, her allegation of misconduct or assault that occurred, actually had a number of corroborating witnesses that she told other people about it at the time. And that in the investigation that occurred after Blasey Ford’s allegations came out, she provided the FBI with a list of names. The FBI appears not to have actually contacted any of those people. So I think the new information is essentially the degree of credibility, not just of the Blasey Ford allegation, but of the Ramirez allegation as well.

Susan Hennessey:         Now looking at all of that, I think that any reasonable person that watched Brett Kavanaugh’s testimony and has looked at the record would conclude that Christine Blasey Ford is telling the truth, and Debbie Ramirez is telling the truth, and that Brett Kavanaugh is lying, and that he lied while under oath. Somebody who has done that is not fit to be on the court. It tears up a notion of justice to have somebody in that position who has so flagrantly not upheld those obligations.

Susan Hennessey:         That said, the standards of legal perjury are incredibly high. The idea that you could prove whenever Brett Kavanaugh said he didn’t drink or he wasn’t this partying person.

Preet Bharara:              He said the Devil’s Triangle was a drinking game.

Susan Hennessey:         Exactly. All these little things. How you could possibly, and not talking about proving in a court of law, but even establish that he knew when you have evidence to prove it. That’s just separate, and I can’t imagine just like I don’t think any reasonable person could look at the record and say Brett Kavanaugh’s telling the truth and all of these people are just lying about them because they’re so mean, or they’re Democrats, or whatever it is. I also don’t think a reasonable person could look at the record and say there is a case for impeachment right now. So I just think it would end up becoming just a huge distraction.

Preet Bharara:              I found the tweet you sent. Tweets are always a funny thing because you have limited characters, and obviously there’s a lot of nuance to what you said. But I think it’s just worth sharing what you wrote. It’s kind of a jarring thing, which is maybe a commentary on where we stand in the country at the moment. You write, “Kavanaugh is a disgrace to the institution of justice, and shame on every one of his craven apologists. But attempting to actually impeach him is pointless.” Shockingly, there are currently more pressing matters than whether a supreme court justice committed sexual assault and perjury. That might come as a surprise to some people, no?

Susan Hennessey:         I mean it’s a shocking statement, right? It’s shocking to think there could be something more important than that. In any other presidential administration, that would be the kind of thing that we would expect sustained congressional intention. We might even expect sustained congressional attention before the individual was confirmed to a lifetime seat on the court.

Susan Hennessey:         But look, there are bigger fish to fry right now. And that’s the president of the United States, and how we should think about impeachment, and the future of the presidency and congressional oversight in that context. And I do think that simultaneously attempting a long shot impeachment on far more complex facts in the Kavanaugh context would really undermine the important work of focusing on the president. Which congress is already struggling to do. And look, it pains me to say that. I think it’s a hideous reality. But I do think you have to kind of accept the world as it is and be reasonable in terms of how you’re going to think about allocation of congressional focus, when it’s just limited.

Preet Bharara:              How do you think history will view the work of the Special Counsel Robert Mueller? Will it depend on what congress does or does it stand on its own? And do you think history will look favorably on it or will it remain controversial? Heavy sigh.

Susan Hennessey:         It is a heavy sigh. I don’t know. It’s-

Preet Bharara:              That’s a reasonable answer. I wish people said that more often.

Susan Hennessey:         I don’t want to criticize Mueller. I’m not in the camp of Robert Mueller failed to discharge his duty. I think Robert Mueller told us from the outset what he viewed his job as. His duty and obligation as. That said, I think there are a few places in which Robert Mueller made some choices that are really, really hard to justify. Even by his own terms. And that really shaped the way we understand it.

Susan Hennessey:         So let’s take volume one. Mueller says that the evidence didn’t establish. He says there’s no such thing as collusion. That’s on a legal term. We’re going to talk about conspiracy. And here’s the elements of conspiracy. And we don’t think a conspiracy was met.

Susan Hennessey:         Okay. On those terms, looking at Mueller, the case he lays out whether you agree with it or not. Fine. He plays by his own rules. But then Mueller says something else. He says, “Our mandate also included this word coordination. Now, coordination also isn’t a legal term. But we’re going to define it as requiring an agreement.” He’s now taking the word coordination and saying it’s not just two parties that are watching one another and taking responsive action, but you actually have to have this agreement. And then he concludes, “There’s no conspiracy or coordination.” So whenever you say well okay, you can say the legal elements of conspiracy here aren’t met. But this word coordination by its ordinary English definition would seem to include the behavior that we saw the Trump campaign engage in with respect to hacked documents. Right? They understand the hacking has occurred and that there’s a plan to leak. They’re reaching out to get additional information. They’re coordinating and planning a campaign messaging strategy around these leaks. The Russians are deciding when to leak information based on what the campaign is doing.

Susan Hennessey:         So I do think that there are places in which Mueller made these choices, these definitional choices. And he breaks his own rules. And I actually think the reception to this document would have been different if Mueller said, “The evidence did not establish there was a criminal conspiracy. The evidence did establish that the campaign coordinated with the Russians.” Choices like that, I don’t know that they will hold up especially well. And I don’t think that they up to a very, very close reading of the details.

Preet Bharara:              So going forward, I guess part of the problem is when we learn in grade school about the three branches of government and we talk about them being coequal, that’s a bit of a myth. Because the nature of the world is, and the nature of the rules set down in the constitution and in other laws are such that if the president chooses to exert all possible, both soft and hard power of that office, it can far outstrip and more rapidly given the glacial pace of legislation in the courts very. Rapidly gain more power than those other branches. We’ve seen that in how presidents assert their ability to go to war, in innovating the requirements of Congress. We have this understanding that they’re all equal in a different functions.

Preet Bharara:              But you imagine three cars on the highway. Two are ordinary cars and one’s a Maserati. And so long as they’re all obeying the speed limit and going under 65 miles an hour, if that’s the speed limit on the highway, you think of them as being similar. But now comes along a driver who realizes wait a minute, this is a goddamn Maserati, I can gun it. And I can go 100 miles an hour. And then the other two cars are not able, this a terrible metaphor. And I should abandon it. But is that really what’s happening? In other words, isn’t there a structural impossibility in causing equality among the branches, given the nature of the power of a president, which vests in a single person who’s elected by the entire country? And has the armed forces, and law enforcement, and the bully pulpit all combined in one human being? How can any other branch possibly ever compete with that no matter what laws are passed?

Susan Hennessey:         Yeah. So people have been warning about this imperial presidency really since the founding, but in those terms since at least the 1960s and 1970s. So this isn’t a new argument, and the question is how will congress respond? And one way we could see a response is actually passing laws and exerting its own prerogatives. We haven’t fully seen that. But I think that’s one hope.

Susan Hennessey:         It’s not just about Congress constraining the executive. It’s actually about Congress doing its own job. If we go back to the investigating the president context or the special counsel investigation context, Congress is supposed to do its own investigations. It is itself an investigative body. And what we saw is members saying, “Well, let’s just wait for the Mueller investigation. Let’s wait to see what Mueller finds.” And essentially outsourcing its work to the executive branch. And that’s something we saw with the star investigation of Clinton. We even saw the origins of that in the Watergate investigation.

Susan Hennessey:         And on one hand, you can understand why that’s completely rational for Congress to do. The executive branch is better at conducting investigations. They can have subpoenas and wiretaps. They have professional staffs that do nothing but investigations all the time. And while we have this institution of the independent counsel or the special counsel, and that can somehow correct for the idea that you technically don’t want the executive branch investigating itself. So Congress has acted as though they can outsource its own work. It’s something like an impeachment investigation. And what we saw here is Mueller dropping this thing on the table and saying, “Well, I did a lot of investigative work for you. By the way, the whole thing about leaving it within the executive branch may not have been a great idea. But I’m not going to do the last part of your job for you. Even though you’re begging me to, I’m not going to do that. You have to decide whether or not this as impeachable or not. I’m not going to decide if there was a crime.”

Susan Hennessey:         We could see congress having a light bulb moment and realizing we can’t continue to ask the executive branch to do our job for us. That this core job of accountability, of understanding whether the president hasn’t engaged in wrongdoing, kind of the molten core of congressional oversight. And we’re going to start taking this seriously, and we’re going to start investing staff time and resources, and organizing ourselves to be an effective counter. But we don’t see them doing that at all. The issue is not is one car a Ferrari and one car, I don’t know.

Preet Bharara:              Say a Honda.

Susan Hennessey:         I don’t even know enough about cars to give a slower car something. It’s one car is off to the races, and the other cars just kind of drafting behind it. They’re not even actually trying. And know the system as designed by the founders does not work in those conditions. It can look like it’s working for a very long time. But ultimately whenever you put real pressure and pressure in the form of a president like Donald Trump, we start to see the rot and the cracks in the foundation. And that’s why I do think that this is, I try not to use the constitutional crisis. I think that’s all relatively overblown language. But that this is a pivotal moment for this country. And the decision really is, is the way Donald Trump uses the powers of the office acceptable? Is it sustainable for another four years? Or is it not? Because if we choose to continue to walk down this path, I think the ability to see our way back as we have in the past when we’ve gone a little bit too far in one direction. We’re going to start losing the ability to find our way back to the center.

Preet Bharara:              I want to talk a few minutes about the intelligence community and various things that are happening as we speak. But first, I want to remind folks that you once upon a time were a lawyer for the NSA. Which stands for no such agency. Correct?

Susan Hennessey:         Indeed.

Preet Bharara:              What is the NSA, and how much power and reach does the NSA have?

Susan Hennessey:         So the NSA is the National Security Agency, and how much power and reach does it have? So the NSA has two missions. One is collecting signals intelligence aimed at foreign facing signals intelligence. So they’re sitting inside the United States, but everybody’s looking outside the United States. And whenever we think about intelligence collection within the United States, we’re talking about the FBI. But outside the United States, we’re talking about places like NSA and CIA. And NSA’s piece of that is the signals intelligence mission.

Preet Bharara:              And by signals you mean communications, people having phone calls, emails, etc.

Susan Hennessey:         Exactly. Data that’s moving. Electronic communications. The mission of the agency has evolved in response to technology in some interesting ways. NSA also has a really important defensive mission as well, that they secure important parts of national security systems within the United States.

Susan Hennessey:         So it’s an extraordinarily important intelligence agency. I know I’m biased here, but I’d say it’s the most important diligence agency. One data point that people who share that view might point to is that it makes up the vast majority of the president’s daily briefing. Most of that material is sourced to signals intelligence or NSA materials.

Preet Bharara:              There’s more volume. There’s more volume of that.

Susan Hennessey:         Right. Rather than things like human intelligence, people who work for the CIA would make a quality over quantity argument. But we don’t have to go down that particular path.

Susan Hennessey:         I will say that it’s often tempting for big government agencies like that to feed the sense of mystique. It’s certainly easier than having to answer questions. Sometimes really hard ones.

Preet Bharara:              It’s like we can listen to all of you. Go.

Susan Hennessey:         Right. And almost just be glib about it and don’t worry about what we’re up to. It doesn’t concern any of you. And I think that that’s the wrong way to think about it. There are real benefits to leaning forward on transparency. Not just about specific programs, although of course that’s important as well. But also just the work that gets done, and why, and the types of people who work there. The headlines this week all involve congressman Schiff’s letter that he’s written to the acting director of national intelligence involving an allegation about whether or not the DNI has turned over a whistleblower complaint.

Preet Bharara:              Yeah. So that’s something that I’ve been wanting to ask you about as we’ve been speaking. I’ve followed your commentary on it. I think you have said we should be cautious as to how we interpret what’s going on between the intel chairman Adam Schiff and the DNI. But from where we sit, it’s pretty alarming. It seems to be a very significant thing that’s going on. What do you make of the back and forth between Adam Schiff and the director of national intelligence?

Susan Hennessey:         I think it’s becoming more alarming over time. Just to recap what occurred, essentially the Whistleblower’s Protection Act, which was passed in the 1980s, actually doesn’t cover intelligence community employees. They have a separate set of rules, and there’s something called the Intelligence Community Whistleblower’s Act.

Susan Hennessey:         The intelligence community is always in this weird position because it a lot of times can’t tell the American public what it’s doing for really legitimate reasons, because we need that secrecy to protect sources and methods. So we ask Congress to really stand in the shoes of Americans in having that democratic accountability and oversight and conditions in which the American people just can’t know exactly what’s going on.

Susan Hennessey:         These whistleblower rules and the way we decide what information the intelligence community has to tell congress are really, really important ones. So one portion of the whistleblower rule that applies to the intelligence community says if someone in the intelligence community makes a whistleblowing complaint and goes through the proper channels. Doesn’t board a flight to Vladivostok or whatever, Snowden did. But comes to the inspector general, makes a report in this way. There are procedures that will be followed, and that that person will be protected.

Susan Hennessey:         So in this case that appears that somebody followed all the rules, reportedly this is someone who was a member of the intelligence community who worked in the National Security Council at the White House. It’s really common for people to, the intelligence community to loan staff to the White House. And has now returned to their home agency. That’s the reporting around it right now. So none of that is confirmed.

Susan Hennessey:         And this person saw something that alarmed them. So they made a whistleblower complaint to the inspector general of the intelligence community. And the inspector general pursuant to the law, looks at that complaint, determined that it was credible. So he passed it to the director of national intelligence. And the law says that when that happens, there’s this determination of credibility, that it’s urgent. That this referral has been made. The DNI shall, most of us understand the word shall as you must do it. Notify the relevant congressional committees within seven days.

Susan Hennessey:         So seven days has come and gone. And it turns out that the acting director of national intelligence didn’t tell the committees. So now Adam Schiff, who’s the chairman of the House intelligence committee, wants to know what is going on.

Preet Bharara:              Right. But explain to folks how it is if the DNI didn’t convey the whistleblower complaint to Adam Schiff, how does Adam Schiff know that it exists?

Susan Hennessey:         Yeah. So it appears that the inspector general of the intelligence community gave this to his boss, who’s the director of national intelligence, the acting director. He allowed that seven days to pass. And then the inspector general said, “Hey, it’s been a week. You’re supposed to convey this and you haven’t.” So the inspector general himself made a notification. Not actually passing that complaint on, but just saying, “Hey Congress, I’ve done my job. The clock is ticking. You need to be aware that I’ve made this submission.”

Preet Bharara:              Right. So that itself is a pretty remarkable thing, is it not?

Susan Hennessey:         Yeah. It’s relatively astonishing that an inspector general would feel the need to be put in this position in the first place. And one thing we don’t know is whether or not the committee has a sense of the content of the complaint. And I think this is really important.

Susan Hennessey:         Adam Schiff, who’s a really smart, pretty calm person, wrote this absolutely blistering public letter to the DNI. In which he said, “This is outrageous. The law says you have to tell us, you have to give us this whistleblower complaint. You haven’t done it. You’ve refused to do so. And we can only conclude that this involves serious wrongdoing by the president or some senior administration official that you are trying to cover up. Very, very serious abuse.”

Susan Hennessey:         A letter like that from Schiff and then an angry letter I think is a reason to be concerned, right? This isn’t somebody who gets alarmed easily. One of the things you have to ask as an outside observer that doesn’t have access to classified information, is Schiff just saying, “Hey, there’s a process foul here. If you don’t clear up the information, I’m going to assume the worst here. Because my job as an overseer is not to let you get away with stuff.” Or, does Schiff have some additional information that he’s not able to share because he’s limited by the ability to talk about classified information. So what he’s really doing is setting an alarm here and a siren, and trying to tell everyone, “Hey, look at this. Something really, really bad is going on.”

Susan Hennessey:         Early on it wasn’t clear which of those worlds we were in. Hey, is there just a process issue or is there a real substantive concern here? As additional information has come out, there’s more and more reason to believe no, we might be in the world of serious substantive issues. Mostly because the DNI has said that he was instructed by a higher authority not to comply and not to give that information.

Preet Bharara:              Do you think that was God?

Susan Hennessey:         Either God or potentially the president. I did like that terminology, a higher authority.

Preet Bharara:              Who are the other higher authorities?

Susan Hennessey:         I think formally just the president. But again, sort of a weird way to describe it. And it’s not as though this law has an exception for, unless the president really doesn’t want you, or God appears to you in a vision.

Preet Bharara:              So Adam Schiff has issued a subpoena.

Susan Hennessey:         He has. He’s essentially told the director of national intelligence, “Either you tell me what’s going on and you give me the substance of this complaint, or I’m going to call you into Congress and I’m going to make you answer a series of questions.” Already the fact that we’re here is really bad news. Congressional oversight of the intelligence community relies on mutual trust. It relies on both sides playing by the rules, and agreeing to lean forward and sharing information. Because remember, this is all happening in secret. The American public doesn’t know about this. Congress doesn’t necessarily know about all this. We’re asking the intelligence community to watch itself. We’re using these inspector generals, these secondary proxy mechanisms. And this is really, really important stuff. And if the answer here is that the intelligence community now picks up a cue from the White House and says, “Well, you issue a subpoena Congress, and we’re going to litigate it. And it’s going to take you years, and we’re not going to comply until a judge forces us.” The entire system of intelligence oversight will collapse in those conditions. It just isn’t designed for that. It’s designed for both sides to participate in good faith on behalf of the American public. That’s why I think this is a story that’s really important. You don’t want to create overblown expectations and, “Oh God this means,” I don’t know, “The president’s reading everybody’s emails,” or whatever crazy thing.

Preet Bharara:              I hope not.

Susan Hennessey:         My emails aren’t that interesting.

Preet Bharara:              Is inspector general in this instance, removable by the president?

Susan Hennessey:         I don’t know the technical answer to that question, I would imagine yes, because the inspector general is a political appointee. I don’t think he’s covered by the civil service rules, but I don’t know what the formal answer is.

Preet Bharara:              Right. That’s something you worry about now too, where you have cogs in a process. And it looks like people are abiding by some of the process. You remove one of them, and then you get a different result. I mean I wonder how this would have played out had Dan Coats still had been the DNI, do you think would’ve played out differently?

Susan Hennessey:         I think it certainly might’ve played out differently if Sue Gordon was the acting DNI. Remember she was forced out. And I think it’s worth stepping back and thinking about the incentives here. The whistleblower in this case, if the reporting is accurate. A member of the intelligence community, going into the National Security Council is a big deal. It’s part of upward career mobility. Is now returning to their home agency. Every incentive there is to put your head down and do your job. And unless you see something absolutely egregious to not engage in a whistleblowing process.

Susan Hennessey:         Whistleblowing is not fun for the whistleblowers. For this person to be so alarmed that they say, “I have an obligation here to engage in this process, to risk my career.” Even the law formally shouldn’t allow that. We know the realities of these situations. For the inspector general who is independent from but also has to work with the director of national intelligence, technically this is his boss. For him to say, “You aren’t following the rules and I’m going to tell Congress you weren’t following the rules. I’m not accepting your explanations for why you don’t have to do this.” I think that shows one, the heartening news that there are still people who believe in abiding by the rules, committed to doing the right thing, and making the system work. And also is a cause for alarm because it gives an indication that hey, there’s something really bad going on here for these people to be really raising the alarm in this way.

Preet Bharara:              There has been reporting that the government, our government, US government, has concluded that over the last couple of years, the nation of Israel has placed cell phone surveillance devices around the White House and other sensitive locations in Washington. Trump apparently said in response to that allegation, “Anything’s possible. But I don’t think the Israelis are spying on us. I really would find that hard to believe.” You tweeted in response to that, “This made me literally laugh out loud.” What’s so funny about that Susan?

Susan Hennessey:         I literally laughed. It’s a funny comment. Because yes, the Israelis do spy on us and they spy on everybody. And that’s not a moral judgment on the Israelis, that’s just the factual record. And I’m not saying that based on classified information, but the public information available. The idea that the president of the United States who of course is privy to lots and lots of classified information that might substantiate that view. The idea that he would basically say, “Well, I don’t think they’d do that.” It’s like having a toddler in the Oval Office. I mean, what do you think is going on here?

Preet Bharara:              Do you think he really believes that or is that just something he has to say publicly? Because I recall, the Israelis, you say they absolutely do it. And when asked the question, they deny it also. So is their denial laughable, or is their denials smart international relations and politics whereas the president’s remark along the same lines is laughable?

Susan Hennessey:         All nations spy, and all nations deny they spy. And that’s within the realm of acceptable rules and fair play. The United States does things and we deny it. For the president of the United States to say, “I don’t think the Israelis would do something like that.” The reason why he’s saying that is because he doesn’t want to have to respond. Because it’s inconvenient to him to have to acknowledge that reality and actually take some kind of recourse. Right? It can be inconvenient when we find ourselves in the position of having to hold our friends accountable for something. Of course, what’s going on is that the president doesn’t want to have to do anything about it. So whenever he doesn’t want to have to do anything about something, he conveniently just refuses to believe it.

Susan Hennessey:         There also is an indication that the way Trump approaches these issues, the lens through which he approaches this issue is almost bizarre. So we’ve seen reporting that he doesn’t want the CIA to rely on human sourcing, because he doesn’t like the idea that this person would be betraying their own country to help the United States.

Preet Bharara:              It’s like how he feels about cooperating witnesses.

Susan Hennessey:         Exactly. Well, the guys are rats, just because he’s ratting on the mob. And one, that really is an insult to a lot of people who risk their lives in the intelligence community. And yes, sometimes the intelligence community pays informants or compromises informants, or things like that. But an extraordinarily common amount of the time, it’s just people who believe in principles of freedom and democracy, the American vision. And actually want to help us and risk their lives to do it. And in a lot of cases and more frequently than the public is aware, actually gives their lives on behalf of this cause.

Susan Hennessey:         So to have a president say that, it’s really this bizarre combination of naivete. As if everything is interpersonal relations rather than nation states. But also, that everything to him is so transactional. Even the concept of loyalty that he wouldn’t understand why people would look to the United States and want to help us, and want to make the world safer for people and our ideas essentially. And that itself, I think there’s something pretty alarming about it.

Susan Hennessey:         Part of the reason Trump was elected in the first place was the power of unthink-ability. Right? People thought there’s no possible way this guy could get elected. So they didn’t vote, or they voted for third party candidates. I already see that unthink-ability creeping in again. In analysis, the way people are responding to polls. There’s no possible way he’s going to win reelection. That’s dangerous. An incumbent president always has a chance of winning reelection. It’s probably more likely than not just on the pure statistics of it. And I think unless the American public confronts that and understands it’s not unthinkable, and this choice really is before us, we only get to make it once. Because the reelection is the most important choice. That’s dangerous to just convince yourself. Robert Mueller’s not going to rescue us. The United States Congress isn’t going to rescue us. This is on the American people to make this choice, and there’s only one way out.

Preet Bharara:              Susan Hennessey, thank you so much for being on the show and taking the time. The report podcast continues. You can find it wherever you listen to your podcasts. Thanks again.

Susan Hennessey:         Thanks for having me.

Preet Bharara:              The conversation continues from members of the CAFE Insider community. In this week’s Stay Tuned bonus, Susan and I talked about her current level of optimism, how the executive branch has changed over time, and her blog Lawfare. To hear bonus and the exclusive weekly CAFE Insider podcast, go to

Preet Bharara:              So I want to end the show this week by making a further remark on my extraordinary guest from last week, Brenda Berkman. You’ll recall That she was the first woman firefighter in the New York City Fire Department, and she had to fight long and hard and struggle mightily to just get that equal treatment. And then even after she won her first lawsuit in 1982, she was abused, discriminated against, fired. Had to reinstate a lawsuit to get to serve as a first responder with New York’s bravest.

Preet Bharara:              And the reason I mentioned it is I don’t know if folks appreciate it. I had never met her before, and never spoken to her before. It doesn’t happen so often that you come into the presence of someone who you immediately admire, and who you’re honored to know. And it turns out I’m not the only one. I cannot tell you how many emails, tweets, other messages I’ve gotten with respect to the interview with Brenda Berkman, and how much inspiration she’s given lots and lots of people. Not just women and not just people with daughters. But to men and women both as a model of bravery, courage, persistence.

Preet Bharara:              Here’s a tweet from [EricaBarry2001 01:06:22]. “Preet, I didn’t think you’d have an episode that struck me as much as the Bill Browder episode, but this one had me in tears as I listened to Brenda at recount her 9/11 experience. Thank you for telling your story Brenda.”

Preet Bharara:              Here’s a tweet from listener Hope H who writes, “I have a new hero. Brenda Berkman has an amazing story, and Preet seemed to thoroughly enjoy interviewing her. She’s inspirational, funny, no nonsense, and raw. An absolutely fantastic episode.”

Preet Bharara:              You have that exactly right. It was one of my most favorite interview experiences in two years. What I got and you didn’t was I got to talk to her for a bunch before the interview, and then after the interview. Talked her ear off in fact. Hopefully we can have her back and tell more stories.

Preet Bharara:              Some of you made your views known on podcast reviews. Listener [Algoli] said, “The episode with Brenda Berkman was riveting. Women and the men who support them should listen to what Captain Berkman and other women endured to become New York City firefighters. This is what true bravery is.” Reviewer [Chase Bear 01:07:24] writes, “I really didn’t think another 9/11 story could make me cry, but it did. My favorite podcast.”

Preet Bharara:              So all of this is just giving another thanks and shout out to the extraordinary Brendan Berkman, and thanks to all of you who tuned in and listened, and were moved by her story as well. And although from what I understand in Brenda getting to know her a little bit, she would balk at this comment because she’s a humble person. She does show that one person can make an extraordinary difference. See you guys next week.

Preet Bharara:              Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Susan Hennessey. 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. You can tweet them to me @PreetBharara preparer with the #AskPreet. Or you can call and leave me a message at (669) 247-7338. That’s (669) 24PREET. Or you can send an email to [email protected]

Preet Bharara:              Stay Tuned is presented by CAFE. The executive producer is Tamara Sepper. The senior producer is Aaron Dalton. And the CAFE team is Carla Pierini, Julia Doyle, Calvin Lord, David Kurlander, and Geoff Isenman. Our music is by Andrew Dost. I’m Preet Bharara. Stay tuned.

Preet Bharara:              I’m looking for an experienced audio producer and editor to join the team at CAFE. That’s the company that brings you Stay Tuned and the CAFE Insider podcast. If you’re passionate about law and politics and thrive in a startup environment, this is the job for you. Email your resume and cover letter to [email protected] That’s [email protected]