Preet Bharara: Hey listeners. We hope you enjoyed Tuesday’s special episode of Stay Tuned, brought to you by the Amazon original motion picture The Report. We spoke to Pulitzer Prize-winning journalist Mark Mazzetti about covering the national security beat and Daniel J Jones, the former senate staffer who investigated the CIA’s secrete detention and interrogation program implemented after the September 11 attacks. His story is told in The Report. See it in theaters starting tomorrow, November 15, and on Prime Video starting November 29. Thanks again to Mark and Daniel.
Preet Bharara: Listen to the Stay Tuned episode any time, and see The Report starting tomorrow.
Preet Bharara: From CAFE, welcome to Stay Tuned. I’m Preet Bharara.
Jill Lepore: There were, in the 1930s, eloquent writers… including poets and artists and filmmakers… who defended liberalism. Their defense of liberalism in the 1930s was crucial to the success of the New Deal for all of its limitations, for failing to address Jim Crow, and I’m not sure that we have, at this moment, that same defense.
Preet Bharara: That’s Jill Lepore. She is a professor of American history at Harvard University, an author, and a staff writer at the New Yorker. Her most recent work, These Truths, tackles the history of America, wrestling with the aspiration and the oppression, the triumphant and the atrocious, to try to build a bridge between battling interpretations of our world. Lepore and I talk about how to make an argument without losing a reader, why the study of history is becoming as polarized as politics, and whether the rules of evidence exist outside the courtroom.
Preet Bharara: That’s coming up. Stay tuned.
Preet Bharara: Hey folks, I’m taping this on Wednesday, November 13, about halfway through hour six of the first open hearing with respect to impeachment in the House. I haven’t heard all of it. Maybe new things will develop between now and the time you listen to this tomorrow, but I have a few observations to make, for what they’re worth.
Preet Bharara: First, overall, I think the hearing which featured two witnesses… ambassador Bill Taylor and state department official George Kent… I think in the main, there was more light generated than heat. I think there was some clarification of some of the points that Democrats have been trying to make about the conduct of the president. I think, overall, none of the witnesses had any of their testimony damaged or undermined, not even in a small way. They were pretty orderly as these things go. I think that the whole process benefited tremendously from this change in format, whereby the chair and the vice chair, along with their main counsels, undertook a majority of the questioning once the witness statements were made. I will comment separately about the performance of each of those folks.
Preet Bharara: Adam Schiff, for his part as the chair, did his usage job of being pretty firm, pretty clear, pretty fact-based. He was, as you might expect, attacked by the other side for various things, including the mistake that he made at one of the earlier hearings when he repeated… in an exaggerated form… the contents of the call between President Trump and President Zelensky.
Preet Bharara: Devin Nunez, for his part, in his opening statement spent a lot of his time repeating various talking points, seemed to favor some of the president’s catchphrases, some of which were that the Democrats are engaged in an orchestrated media smear campaign. He referred again to secret depositions: attacking the process, even though those depositions were not secret by any normal measure. Republicans had an opportunity to be at those depositions, and, as we have seen, the transcripts of those depositions are being made public on a rolling basis. He spent some time in advance of the public testimony of these two witnesses attacking… as a general matter… all of the folks who might say something negative about the president. He used somewhat colorful language attacking what he expected to be a theatrical performance, and he essentially said… since the Mueller investigation fizzled out… He congratulated the witnesses on passing star chamber auditions to be cast in a low rent Ukrainian sequel. I’m sure that was persuasive to the general public, but its strong language probably pleased at least one person.
Preet Bharara: Here are a couple things that I was struck by in terms of the overall framing of the hearing from the perspective of the chairman. We’ve seen this before, but this was the first time I’ve seen… in such a deliberate, conscious, sustained way… the chairman and the other Democrats putting all of this conduct in context. In many ways, the focus was not just on the self-dealing by the president and the abuse of power by the president, but also a focus on why this was important: how this was a threat to not only Ukrainian security, but also to US national security.
Adam Schiff: The questions presented by this impeachment inquiry are whether President Trump sought to exploit that ally’s vulnerability and invite Ukraine’s interference in our elections: whether President Trump sought to condition official acts, such as a White House meeting or US military assistance, on Ukraine’s willingness to assist with two political investigations that would help his reelection campaign. If President Trump did either… whether such an abuse of his power is compatible with the office of the presidency.
Preet Bharara: Many of the points made by Adam Schiff and others in the questions and statements brought home a point that Anne Milgram and I discussed on the CAFE Insider Podcast this week. It’s not just the president of the United States, in connection with this alleged extortion scheme, that he did things that were not in the interest of the United States. He did things that were directly at odds with the interest of the United States: undermining United States national security at multiple junctures.
Preet Bharara: Both Adam Schiff and other members of Congress asked Kent and asked Taylor to describe exactly why this was a problem. Among other things, the aid being withheld was something that caused… directly or indirectly… the deaths of Ukrainian soldiers as they’re trying to hold Russian forces at bay. I thought that was illuminating and smart to make sure that the American people understand that what’s at stake here is not just the president trying to do something for himself… a campaign dirty trick… but doing it at the expense of American national security.
Preet Bharara: I thought my friend and former colleague, Daniel Goldman, did a terrific job of being clear and to the point, used his time effectively. In some ways, he wasn’t trying to elicit new information. A lot of the testimony of the witnesses… with one very notable exception, which I’ll mention in a moment… was not new. It was known because there had been extensive depositions and the transcriptions of those depositions have already been released.
Preet Bharara: I think partly what was trying accomplished here was to explain in a clear way, in television-ready moments… which is important in a democracy where public sentiment matters… what the essential features of the argument are: what the essential worries are about the president’s conduct. Part of what was effective about Dan Goldman’s questioning was he would ask, from time to time, Bill Taylor to read something from his testimony, or read something from the readout of the call between the president of the United States and President Zelensky. That was not revelatory: that served mostly to do the kinds of things that people were hoping Bob Mueller would do in his testimony, who very officiously said he would refuse to read any aspects of his own report, even though he was the author of it.
Preet Bharara: That was less compelling television. This was more compelling television for that reason. I don’t say that in a negative way; I think it’s important for people who are very busy, don’t have time to read extensive reports, don’t watch the news 24 hours a day, to understand in simple fashion what’s at stake here and how the facts unfolded with respect to the Ukraine incident.
Preet Bharara: In fact, in one of my favorite moments of the entire hearing… and I speak because of my parochial interest and friendship with Dan Goldman… he began a line of questions with Bill Taylor saying, “I want to spend a little time reading the transcript, as we’ve been encouraged to do,” which is obviously a sly reference to the president’s repeated statement, “Read the transcript.” You’ve seen that there are people supportive of the president wearing T-shirts saying read the transcript, many of whom look like they’ve never read any transcript, much less that transcript, because the transcript is devastating.
Dan Goldman: I want to spend a little time reading the transcript, as we’ve been encouraged to do, and I want to particularly note four excerpts of the transcript: one that relates to the security assistance we’ve been talking about, another that discusses a favor that President Trump asked of President Zelensky, a third where President Trump asks the Ukrainian president to investigate his political opponent, former Vice President Biden, and then a final one where the Ukrainian president directly links the desired White House to the political investigations that President Trump wanted.
Preet Bharara: The Republican counsel, Steve Castor, whom I do not know personally, for his part did not do such a clear job. On the one hand, it could be argued that he hadn’t prepared well. It looked like he was winging it a bit. He was asking questions the answers to which he clearly did not know on a number of occasions, which is something that you don’t do when you have limited time and it’s a public forum like that and you’ve had ample time to prepare and you’ve seen a lot of deposition… in fact, hopefully all of the deposition testimony… of the witnesses.
Preet Bharara: On the other hand, you could argue that he doesn’t have a lot to work with, and both he and Devin Nunez spent a lot of time not attacking the central allegations of the Ukraine scandal, but rather talking about collateral issues and conspiracy theories that they think some people in the public might view justifies the reasons why Donald Trump was asking for this investigation: that it went to general corruption, as opposed to what the clear language suggests and what the surrounding circumstances show. He was interested in Ukraine announcing an investigation of his most dominate political rival at the time.
Preet Bharara: With respect to Dan Goldman’s question, this is a point that’s been made before but I don’t think that it’s been made as clearly and powerfully as this, and it’s not getting as much attention. The point is this: through questioning of Bill Taylor, Dan Goldman established that what was clearly important to the president, to the White House, was that Mr. Zelensky of Ukraine, or some other official in Ukraine, make a public announcement that they were investigating Burisma and the Bidens, or at a minimum that they were investigating Burisma, which obviously implicates the Bidens.
Preet Bharara: The reason that’s important is this: if the president’s general interest was simply to be anti-corruption, as a lot of his allies in the committee today attested to, and that it had nothing to do with the fact that one object of the investigation would be a political rival… if it was just general corruption, then the important thing about that is that the investigation be undertaken, much less important that it be publicly known that the investigation was being undertaken. In fact, it seemed clear that what the president cared about more than the investigation itself was the announcement of the investigation: that it be public. Why would that be? Common sense tells you that the reason for that is because that will cast an aspersion on Hunter Biden and Joe Biden, and that’s what the president was after.
Preet Bharara: The amount of intensity of feeling about the announcement being public as opposed to confidential or private is significant. I thought Dan Goldman did a good job of bringing that point home. But I don’t want to spend all my time talking about the lawyers and the members of Congress who were asking questions, because… as judges warn juries in criminal cases… what the lawyers say is not evidence. What the witnesses say is evidence, and I think there were a couple of very formidable witnesses today.
Preet Bharara: I will confess that I personally might not have put George Kent together with Bill Taylor. I think George Kent was a great witness. I think he was a credible witness and I think he showed a lot of integrity, but clearly the majority of questions went to Bill Taylor. The majority of the speaking time went to Bill Taylor. I said this on Twitter earlier: I have never seen a witness prior to questioning before any kind of committee be given that much time to make an opening statement. I don’t have the timing in front of me, but I think it went easily 30, 35, 40 minutes, which I think was smart to allow a person like Bill Taylor to get his story out, because not everyone read his written statement.
Preet Bharara: First, a word about his demeanor. His demeanor and the way he presented himself matched every bit his resume of rectitude and public service. Some people commented, in a cosmetic and potentially frivolously way, that he has a radio announcer voice. I kept thinking he’d make a good podcaster, actually. But these matter when you’re going to have public proceedings. He had an air of gravitas about him, which gave him and air of credibility, backed up by the substance of what he was saying. In large part, I think he made headway with respect to public understanding of what’s going on here just by repeating clearly many of the things he said in his deposition.
Preet Bharara: But there was one bit of new news that I think is very significant and furthering damaging to the president and also… in connection with these kinds of things… a combination of reaffirmation of what went before and restatement of prior testimony, combined with some new revelation along the same lines, helps to propel the story, give the investigation momentum, allows people to say it was useful to have it because there was new information gleaned.
Preet Bharara: And what was that new information? Essentially, Bill Taylor added to his testimony something he didn’t know before. A few days ago, he found out about an incident from July 26. Remember, July 26 is the day after Donald Trump made the phone call to President Zelensky, and at the time Bill Taylor was out of the country with Ambassador Volker, I believe, in Ukraine. And yes, it is admittedly hearsay, but for what it’s worth he told the committee this, and they’ll be able to confirm this. He said that a member of his staff, a member of Bill Taylor’s staff, accompanied EU Ambassador Sondland for a meeting with an advisor to President Zelensky. That advisor’s name is Mr. Yermack.
Preet Bharara: Following that meeting on July 26, he testified, “In the presence of my staff at a restaurant, Ambassador Sondland called President Trump and told him of his meetings in Kyiv.” Taylor goes on to say, “The member of my staff could hear President Trump on the phone…” I guess President Trump was talking a bit loud. So he could hear President Trump on the phone asking Ambassador Sondland about the, quote, investigations. “Ambassador Sondland told President Trump that the Ukrainians were to ready move forward,” close quote, presumably with the investigations. Taylor goes on to say, quote, “Following the call with President Trump, the member of my staff asked Ambassador Sondland what President Trump thought about Ukraine. Ambassador Sondland responded that President Trump cares more about the investigations of Biden.”
Bill Taylor: Following the call with President Trump, the member of staff asked Ambassador Sondland what President Trump thought about Ukraine. Ambassador Sondland responded that President Trump cares more about the investigations of Biden, which Guiliani was pressing for.
Preet Bharara: So that’s new information: indirect, but gives further substantiation and weight to the argument that President Trump was not doing something in the national interest, that he didn’t care about Ukraine, that what he cared about was a public announcement that would undermine the candidacy of his opponent.
Preet Bharara: Now, there is an argument to made about things that a witness says that come from someone else: that are speculative and not concrete, or unclear, especially if those witnesses are not ever going to be found. And [inaudible 00:14:21] will make such an argument, but you can’t carry it too far. In this case, I saw members of Congress at the break deriding the testimony as being all full as hearsay, which by the way is ironic for another reason, because the other thing I saw them do over and over again was say, “Where’s the whistleblower?” Presumably, they want the whistleblower to come forward so they can denigrate that testimony as being secondhand. There’s some irony in these criticisms.
Preet Bharara: As the hearing was unfolding, there was a report that the actual staffer who has firsthand knowledge of the conversation between President Trump and Ambassador Sondland will be coming to the Congress for behind-closed-door testimony as soon as Friday.
Preet Bharara: Like with a lot of other arguments that the Republicans have been making, you make an argument on day one that there should be a vote, then there’s a vote and that argument gets taken away. You make an argument on day two that the deposition should be released, then they are. Takes that argument away. Then you make an argument the next day saying that there should be public hearings, then they hold them. Takes that argument away too. I suspect much of the same thing is going to happen with respect to these hearsay arguments.
Preet Bharara: One other thing that I thought added to the credibility of both Kent and Sondland: on a few occasions, they were asked the direct question, “What in this call, or what with respect to this conduct, do you find impeachable?” And both refused to answer. I saw some people on social media and elsewhere, including Ari Fleischer, former White House spokesperson, say… I thought oddly… that was one of the biggest moments of the day: that they couldn’t say that those things were impeachable. I think it’s a point in their favor, because that’s not their job. Those are witnesses testifying as to what they knew, what they heard, and what they said. I think it would actually undermine their credibility if they came there with an agenda in favor of impeachment, or they came there to opine on whether or not members of Congress should vote one way or another.
Preet Bharara: I thought Bill Taylor was very effective and credible and honorable by saying over and over again that he wasn’t there to side with any particular outcome. He was there to explain what he saw, heard, and knew, and that’s all, and other people can make what they want of it. The idea that that was somehow favorable to the president… that they wouldn’t sit there and direct a particular vote from members of Congress… I thought was odd.
Preet Bharara: All in all folks, I have a lot more to say about the details of what happened today. There’s another public hearing happening on Friday with Marie Yovanovitch, former ambassador to Ukraine, and Milgram and I will talk about all of this at much greater length and in greater depth next Monday on the CAFE Insider Podcast. But my conclusion, all in all today, is that it was a good, sober, clear-eyed, dignified proceeding. There were a lot of efforts to obstruct and to call attention to various procedural issues. I thought Adam Schiff handled that well. He didn’t get dragged into the muck. He continued with what he wanted to do. Questions were asked. Questions were answered. The witnesses acquitted themselves well.
Preet Bharara: If this is how the future hearings are going to go, I think the public will learn a lot about it, and it might shift people’s opinions, although you never know how much people will change their minds given the bubbles that so many folks live in.
Preet Bharara: After Yovanovitch on Friday, the committee was announced another set of public hearings as well, so get ready to be glued to your television and also to this podcast. Next week on Tuesday we have Jennifer Williams and Alexander Vindman. In the afternoon we have Kurt Volker and Tim Morrison. On Wednesday morning, we have a very important witness who is somebody who has changed his testimony and may have to change his testimony yet again given how much he’s been talking about: EU Ambassador Gordon Sondland. Then in the afternoon we have Laura Cooper and David Hale. Then on Thursday we have another witness: Fiona Hill. That’ll be interesting also, given what her deposition showed with respect to her demeanor of not taking any nonsense from any member of Congress.
Preet Bharara: One more quick note, folks; I’m really excited to announce that one of my former colleagues, Chief of Organized Crime Ellie [Holneg 00:18:00], will be joining CAFE as a contributor. Every week, he’ll be giving you his analysis on Friday mornings in the CAFE Brief. Looking forward to that. To sign up for the free CAFE Brief, go to café.com/brief.
Preet Bharara: My guest this week is Harvard professor Jill Lepore. She’s a prolific author and her most recent tome is These Truths: a History of the United States, which delves into the thick of competing historical narratives about this country, wrestling with larger questions about America’s past and what it teaches us about the present and portends for the future. An avid archivist with a love of writing 4,000 word essays, Lepore believes that academic historians should not only accept that their work will be challenged, but also be willing to revise it when presented with new scholarship. We talk about one question journalists should stop asking historians today: how to study the Trump era without Trump himself, one topic on which Lepore cannot restrain herself, and why there’s an argument to be made that America has always lived in divided times.
Preet Bharara: That’s coming up. Stay tuned.
Preet Bharara: Professor Jill Lepore, thank you for coming on the show.
Jill Lepore: Thanks so much for having me.
Preet Bharara: It’s a real treat to have you. We have a lot of things to talk about: past, present, future. When you have someone on who has a book, we usually mention the book, and we’ll talk about the book. But you have two books so recent in time that maybe we should mention both of them. One, These Truths: a History of the United States, very unambitious tract. Pretty short. It runs to… Well, you were required to bring it in under 1,000 pages.
Jill Lepore: Yeah, otherwise you have split it into two volumes, and you can’t have that.
Preet Bharara: And then you wrote a shorter book called This America: the Case for the Nation.
Jill Lepore: We think of that as These Little Truths around my house.
Preet Bharara: Yeah. Is one a sequel of the other?
Jill Lepore: This America is in some ways a digest of an argument that’s implied in These Truths. It’s not an excerpt of it. It’s a stand-alone…
Preet Bharara: But it was not your way of getting around the 1,000 page limit: by chopping off one…
Jill Lepore: No. It’s not an addendum.
Preet Bharara: You and I share a fondness for a particular historical figure, so I wanted to start with that because he had a great influence on me: the most famous criminal defense lawyer of all time, Clarence Darrow. I have said before that one of the reasons I decided to go to law school is I read Inherit the Wind, which is a fictionalized account of the Scopes Trial, the monkey trials, which we’ll talk about in a second. Then I was telling my team when we were talking about this interview and how you talk about Darrow in your book, I read two biographies of Clarence Darrow in college. I delivered, in speech competitions, a portion of his closing argument in the case of The People versus Henry Sweet, and I quote from him in my book and in a lot of speeches I give. There’s something about his message, for me, that justice is not done only by law. It’s done by people.
Preet Bharara: Let’s more about why he’s important in American history.
Jill Lepore: Yeah. I love Darrow too. I think that I’m less geeky than you; I’m embarrassed to say I’ve probably never read Inherit the Wind, but saw the movie when I was kid.
Preet Bharara: The original.
Jill Lepore: Spencer Tracy movie.
Preet Bharara: Spencer Tracy. It’s great.
Jill Lepore: I think it was a play for a long time, too. I never saw the play. It’s a great movie. Was it ’64, maybe?
Preet Bharara: I used to own the VHS tape. For the young people, that’s a primitive form of entertainment.
Jill Lepore: That’s right. It’s like a cave painting.
Preet Bharara: There are no disks anymore. I wonder if it’s on Netflix.
Jill Lepore: I didn’t understand at the time the play and the film were really about McCarthyism. I always understand Darrow through the lens of McCarthy, which is completely ahistorical. Darrow is a progressive era defense attorney: attorney for the damned.
Preet Bharara: Attorney for the Damned. That’s one of the biographies I read.
Jill Lepore: I read it in an assignment to write about Darrow a few years ago, because two biographies about Darrow came out in the same year and there’s just not the time when you are a young person, but maybe four five years ago, something like that. They’re both very good.
Jill Lepore: I came across this case in which he defended like a factory town… it was a lumber town. The George Payne Lumber Mills or something. The workers had organized and Darrow came in to defend them against this giant company. Unbelievably good story. Every case Darrow was involved in is an incredible story.
Preet Bharara: And the Scopes Trial. The Scopes Trial was about what?
Jill Lepore: The Scopes Trial is 1925. This is the thing that Darrow is most known for because of Inherit the Wind. Also, it was in many ways his most famous case. Darrow rarely took fees for his work, but he was essentially recruited by the ACLU to defend John Scopes, who had engaged in the breaking of a law on behalf of the ACLU in 1925. Scopes was a biology teacher in Tennessee, and the Tennessee legislature had recently passed a law criminalizing the teaching of evolution. Scopes broke the law by teaching evolution, and then in a show trial was tried in this very small town of Dayton, Tennessee. Reporters from all over the country flocked to this tiny little town and it became a whole circus.
Preet Bharara: In part because of who the lawyers were.
Jill Lepore: Because of who the lawyers were.
Preet Bharara: Clarence Darrow, at the time, most famous lawyer in the country, right?
Jill Lepore: Yeah. There’s no figure like him in the world now.
Preet Bharara: It’s sad in a way.
Jill Lepore: Yeah.
Preet Bharara: And then on the other side…
Jill Lepore: William Jennings Bryan, a four time presidential candidate: the great commoner.
Preet Bharara: What would be the equivalent today on a hot button social-religious-political issue in a small town? Pick a famous defense lawyer. And then on the other side Mitt Romney or someone who ran for president multiple times or John Carey or someone like that. It’s kind of nuts.
Jill Lepore: It was this extraordinary battle. My entire understanding of the battle had come from the film. When I set about to work on this book, I went back and read the coverage all over again. I read the newspaper coverage and I read a quite fascinating biography of Bryan called A Godly Hero that Michael Kevin, who’s the editor of Dissent, wrote a few years ago. Brilliant biography of Bryan. And I knew a lot about Darrow. Of course, he’s like my hero. I’m rooting for Darrow. How could they have this law? This is nuts.
Jill Lepore: Then I reexamine this story and something much more complicated than Inherit the Wind presents it as being. It was one of the more fun pieces of the research I did for the big history of the United States… These Truths… because I got fascinated by… So, Walter Lippmann also fascinates me. He’s a very prominent political commentator of the progressive era. He read the accounts afterward and then he wrote a short book about it called American Inquisitors. Lippmann kind of got to the heart of what he saw as the problem with the Scopes Trial. We, in our mind, think that it marks the defeat of fundamentalism. Bryan lost the case and he died five days later. He never says a word again. Is never able to vindicate the portrayal of him in the press: that he was a yokel, that he was daft.
Preet Bharara: He was made fun of. He was humiliated for it.
Jill Lepore: He was absolutely made fun of. And Darrow humiliated him. Darrow called Bryan to the stand to defend fundamentalism: to defend the literal interpretation of the Bible as historically true. It turns out Darrow was able to expose that William Jennings Bryan, for all of his famous Mr. Fundamentalism, wasn’t really a particularly good reader of the Bible. He couldn’t really defend the age of the Earth, for instance. They brought in these geologists from Oberlin to talk about how we know the age of the Earth and how it’s incommensurate with knowledge of the Bible.
Jill Lepore: But Lippmann raised this really interesting question in his essay called American Inquisitors. He said, “There’s two theories. On the one hand, we believe that the majority should rule and the majority governs. We also believe in an enlightenment idea that a scientific method would get to the bottom of questions involving truth or falsehood by the act of inquiry. We have two different paths toward truth. The people know. The will of the people has a kind of knowledge to it, and the scientific method gets us to truth.” In Tennessee, as Lippmann pointed out, the people of Tennessee decided as to elect a government that decided to say that Darwin was wrong. Who wins that incommensurability between a scientific method and… Because, so far as science science understood it at the time and still does, Darwin was right. The people of Tennessee say that Darwin is wrong.
Jill Lepore: It kind of prefigures our climate change denialism: these two divergent epistemologies.
Preet Bharara: I mean, because we’re talking about science, but that same principle is at stake when you’re talking about Jim Crow in the south. Local citizens elected certain kinds of people who really didn’t want people of color to vote. Who’s to say that’s not right? I say that’s not right, and so the other side should have won in that case. How do these controversies get decided, then? How should they be?
Jill Lepore: I mean, Lippmann was suggesting that will always be a problem. This was the problem of what Lippmann would’ve understood as the age of propaganda: the emergence of mass communications by which people who had ideas that had been defrocked, like scientific racism, could nevertheless propagate them through the forms of mass communication and convince people that these dethroned ideas were in fact true. Lippmann said, “The government should establish truth bureaus.” People are still struggling with what the remedy is.
Jill Lepore: What I thought was so interesting and where I felt really glad to have had the chance to revisit the story of the Scopes Trial is that I hadn’t really understood that Williams Jennings Bryan wasn’t the idiot that Darrow made him out to be. I wouldn’t have voted for the guy. If he was in our world, I would not be a Williams Jennings Bryan fan. What the scholarship has uncovered… and it had been missing from earlier accounts… is that Bryan objected not to the teaching of evolution on the sense that he had an argument against Darwin or the scientific method. Bryan’s error was to conflate Darwinism and social Darwinism. Bryan, as a populist and the great commoner… the champion of the poor… where he completely agreed with Darrow… Their politics were quite similar. Bryan decided that the last thing poor kids in Tennessee needed was for their textbooks to teach them that only the fit survive: that the weak and the deformed and the damaged should be left to die, that the species would endure, which is not Darwin’s teaching but was the teaching of social Darwinists, the pseudo-science of the eugenics movement.
Jill Lepore: Bryan quite passionately opposed that. There’s something that I find quite stirring about insisting then that that was a dangerous thing to teach poor kids in Tennessee. Makes him a much more complicated character.
Preet Bharara: Yeah, because those things are not parallel, even though they share a term.
Jill Lepore: Right. Yeah, they’re not. To believe in evolution is not to believe that the poor shouldn’t get relief.
Preet Bharara: Darwin had a practice of representing… maybe not so much in this case, but in many cases… representing folks who were held in great contempt by the public: unpopular clients, people who had murdered, people who had done terrible things. Do you think we’ve lost that a bit in the country?
Jill Lepore: Yes.
Preet Bharara: Why do you say that?
Jill Lepore: That’s a yes or no question, sorry.
Preet Bharara: In other words, it used to be an article of faith among lawyers, which is tested from time to time, that you take on unpopular clients and there is nobility representing people in criminal cases. The Constitution… not back then, but the court has now held more recently than people realize, that everyone is entitled to a lawyer if you’re accused of a crime, and at no cost if you can’t afford one. Back then, that wasn’t the case. But from time to time, whether it’s a terrorist or some other person that society has deemed more contemptuous than others, people look down on the lawyers who defend them.
Preet Bharara: Why do you think that’s happening?
Jill Lepore: I think it’s part of a much broader cultural change: a kind of seeping away and diminishment of long-fought-for and precious commitments to the rule of law. You would line that up with a number of other features about public life. I mean, you see all over the place instances where people who are engaged in the work of defending accused people whose offenses society would agree are reprehensible… rather than be celebrated for their courage in doing so, or at a minimum respected for their commitment for the rule of law and to due process in doing so, are reviled as if they’re actively defending…
Preet Bharara: The act.
Jill Lepore: As if the defense itself is a moral failing.
Preet Bharara: Can we talk about your book?
Jill Lepore: We can talk about my book.
Preet Bharara: The big one. Was it hard?
Jill Lepore: It was a fun challenge. I like writing essays. A 4,000 word essay is my favorite thing to write, and this was not a sprint but a marathon. I’m that person… When I was in graduate school, I loved doing qualifying exams where you have to read like 200 books and you have to read three books a day and four books by lunchtime.
Preet Bharara: Do you read fast?
Jill Lepore: I’m a very discriminating reader. I can tell what part of a book I need to eat and what part I can just [crosstalk 00:30:17].
Preet Bharara: This is fascinating to me because I’m a terribly slow reader and I don’t read as much as I might because it just takes me a long time, and I’m not good at skimming. This is a problem I’ve had since college. I read the same speed rather it’s light fluff or deeply serious philosophy. For some reason I just read at a particular speed. I had a competitive advantage if the material was complex, because I was reading it at a faster pace than maybe some other folks, but when it was simple easy magazine reading I still read it slowly.
Preet Bharara: How’d you learn how to get through material quickly?
Jill Lepore: When I was in graduate school, I had a friend who said, “When you’re doing oral exams, you divide your reading list. You have to give every book a grade… A, B, or C, before you begin. If it’s on your list, it’s at least a C. The really crappy books, the Ds and the Fs, are not going to be on your list, but if it’s at least a C, then you read the introduction and the conclusion and then you page through a chapter to see what the evidence is and how the style of argument works. If it’s a B, you’re going to read a couple sample chapters beyond that, and if it’s an A you have to read the whole book.”
Jill Lepore: I found it fairly easy to sort books into these categories. It’s a terribly embarrassing thing to confess, because it’s just a cheat. But on the other hand, the way historical scholarship happens to work is most of the book is actually not necessary to read because no one tells a story anymore. This is the academic scholarship where in the introduction you lay out your argument and in the conclusion you state it all over again, and in between… when there’s really no reason to read all the different instances of your illustrations… you offer up some accounts of how this might be true.
Preet Bharara: Have you written any books like that?
Jill Lepore: No, I don’t think so.
Preet Bharara: Yours are all As? Would you give all your books…
Jill Lepore: No, I don’t think my books are all As.
Preet Bharara: Would you give this one an A? You should, because you’re on the podcast and people can hear you.
Jill Lepore: Okay, it’s an A.
Jill Lepore: You can’t do that with fiction. You can’t pick up a novel and say, “Let me just read sample chapters.” The way fiction works is you have to read from beginning to end because there’s suspense and things develop.
Preet Bharara: And a plot.
Jill Lepore: And there’s a plot and characters develop and things change. If you write history the way a novel works, you can’t use that method. I would like to… in my [inaudible 00:32:15] moments… think that scheme doesn’t work if you’re writing narrative history, which is what I generally do.
Preet Bharara: If you had this on your list, your tract, how would go about reading it?
Jill Lepore: This is a book I would read the whole thing of, because you’re trying to…
Preet Bharara: On message.
Jill Lepore: Fair enough. A problem with the few sweeping histories of the United States we have is that they’re written as textbooks, and they’re written as reference works where you could look up something in the index and then read a paragraph and go, “Oh, good, I understand about the Homestead Act of 1862.” But why that would have to have any relationship with the larger history of plains Indian warfare, say, or the notion of household economy or changing gender… It has no attachment to any other idea.
Preet Bharara: So who’s it for?
Jill Lepore: I was asked to write a textbook. I said, “Sure, we could do with a new textbook.” Like any field, there needs to be new textbooks every few years. But I felt that the more urgent need was for ordinary people… Like, when you going into a bookstore, you don’t see a big history of the United States. Those books don’t exist. It used to be a tradition. All due respect to people who write blockbuster presidential biographies and military histories, but that’s not an account of the idea of America.
Preet Bharara: What I was interested to see was that you researched and wrote the book chronically, which you don’t have to do it that way. You can pick and choose what you want to focus. You tell a funny story about going to library and the clerks at the front would ask you, because you were a frequent visitor to the various libraries at Harvard, “What year are you on?” Am I wrong about this? That it’s unusual to proceed chronologically?
Jill Lepore: I think it’s maybe unusual, but if you’re writing a novel you start with chapter one and you…
Preet Bharara: I never wrote a term paper from beginning to end. I would build… and maybe I’m the weird one. I would get bored and I would have a block. If you’re writing point one and you have five points to make, if I was having a block on point one I just skip ahead to point five, and then later you come up with your seamless transitions and then make it all work.
Preet Bharara: Aside from just common sense, was there some other reason you want to do the book this way?
Jill Lepore: Yeah. I think the way that you suggest you work makes perfect sense, because you’re probably working with the architecture of an argument. Maybe there are five points you want to make, so you can make any one of them, and as you build those five edifices up, like a tower of Lego blocks, it might occur to you when you’re done, “This one is the foundational one and then I’m going to move these up,” or you might switch them around and mix and match. In the end, you have this beautiful Lego skyscraper and it stands sturdy and it looks beautiful and it’s trim and square and you’re very happy with it.
Preet Bharara: Although it’s Legos.
Jill Lepore: It’s Legos. They’re going to be square.
Preet Bharara: I don’t know how beautiful it is.
Jill Lepore: But this is more like laying out the tracks. You can’t put the car down until… You have to start at the tracks and they have to go somewhere and it has to close up. I always write that way at whatever length I’m working at, and I would say pretty much always have, but that’s not to say that structure is without an argument. I mean, the work of a certain kind of narrative nonfiction… whether it’s historical or other kind of narrative nonfiction… is to embed the argument in the storytelling.
Jill Lepore: The way the story is structured presumes that your reader is very interested in getting to the end of the story if it’s gripping enough. They care about the characters. The plot is interesting. So you start at the beginning and you’re working towards the end. But then you presume that your reader is not that interested in your argument, because you’re not talking to a jury or judge or people in a law firm or to your professor, who all are obligated to hear your arguments out and entertain them as arguments. You’re talking to other people, so I assume that they’re not that interested in the argument I’m going to make.
Jill Lepore: So to embed the argument in the way I tell the story… I can do story, story, story, rising action, argument gets kind of interesting. Story, story, story, gets more tense and fraught, argument gets more complicated. It’s a bit harder to digest. When you’re at the moment of real suspense, then you can lay in the really demanding portion of the argument, because readers still want to figure out what happened.
Preet Bharara: Because you want to know what happens. Who won the battle?
Jill Lepore: Right, they want to know what happens.
Jill Lepore: You’re supposed to suspend disbelief. The idea would be that as you’re reading you’re not really sure where the country is going sometimes and that there would be enough surprises in the storytelling that you might forget…
Jill Lepore: I remember when I was listening to Slow Burn’s podcast about Watergate… [inaudible 00:36:17] about Watergate. I got so immersed in it that I kept thinking, “Is this guy going to go down? Is this Nixon guy going to have to leave office?” I sort of forgot what happened even though I knew it very well.
Preet Bharara: Even though you’re a historian.
Jill Lepore: Because the storytelling had such a sense of contingency.
Preet Bharara: Let’s talk about some of the themes. You make a point of saying that there are some people who want to tell the story of America one way… maybe the conservative way, whatever that means… America is heroic and wonderful and exceptional, and there are other people who want to tell the story of America and focus on how everything is aspiration and how American history is bound up with oppression and subjugation of large groups of people and domination and imperialism and everything else.
Preet Bharara: How do you negotiate those things and what should a proper reckoning of American history be?
Jill Lepore: I do think our history has become segregated and as polarized as our politics and I think that’s quite dangerous, because it’s very hard to get your bearings and figure out where we’re headed if you don’t have some shared sense of where the nation has been.
Preet Bharara: It’s hard to fact check the historians. We use the historians to fact check the politicians on television these days.
Jill Lepore: What we really have is a two-headed that maps onto our polarized parties. On the one hand, the only thing that has not been great has been since Vietnam, so make America great is a post-Vietnam decline story, but everything else is an American triumphalist… that conservative account of the United States. And then there’s the far-left American atrocity narrative. Everything that the United States has ever done in the world has been bad. It begins with genocide, it goes through slavery and conquest and imperialism down to where we are today.
Jill Lepore: Those histories buttress political arguments, but neither of them make sense as a historical argument, nor they really pretend to proceed from evidence. They proceed from ideology.
Preet Bharara: But they’re set forth by people. Computers are not writing these things. They’re individual humans.
Jill Lepore: Yet.
Preet Bharara: Oh god, that’s another whole episode.
Preet Bharara: Human beings, along the way, are creating these two opposing histories, as you say. Why is that? Is that because over time groups of historians have had a particular ideological bias and that influences their writing?
Jill Lepore: Yes. It is the case that historians are not exempt from ideological bias. Academic historians do have rules of evidence that they attempt to adhere to and they accept the idea of their work being questioned and challenged. Ideally, you should be willing to revise it in the face of new scholarship.
Jill Lepore: That’s not the case with ideologues. Newt Gingrich is not going to revise his understanding of American history on the basis of a new article in the Journal of American History.
Preet Bharara: You don’t think?
Jill Lepore: I don’t think so. I know he does have a PhD in history.
Jill Lepore: I think the thing that is necessary to understand as a historian is that both of those things are true. The United States has done great things… extraordinary nation, ingenuity, the engine of abundance, the business history of the country, and above all American ideals both at home and around the world… chiefly through the challenges that social and political movements have posed to the promise of those ideals. But the United States history is a bloody and vicious history of violence.
Jill Lepore: The thing is that those are not two different accounts. They’re the same account.
Preet Bharara: Same country.
Jill Lepore: They’re mutually constitutive, is a way that we would talk about it, in the sense that like… Imagine that it was 20 years from now and you were asked to write a history of the Trump presidency. You can imagine some historian who might say, “I think the most important thing about this era is the Me Too Movement and the Black Lives Matter Movement,” and writes an account of these social movements, where someone else comes on and says, “From this era, the thing that’s most important is Trump’s presidency. I’m going to write a history from the vantage of the White House out and look at the relationship between Congress and the courts and the three branches of government.”
Jill Lepore: You and I will both… having lived through this movement… suggest that actually you can’t understand the Me Too Movement absent the Trump presidency, and vice-versa. A proper account of this era would have to look at both of those institutions, movements, and need to understand how they are mutually constitutive, to the degree to which the Me Too Movement is a proxy war against Donald Trump. There’s forces and dynamics…
Preet Bharara: And you won’t know, specifically about the Trump presidency, what to say about it until you know… among other things… if he gets reelected.
Jill Lepore: Yeah. We don’t really know.
Preet Bharara: And if there are people who try emulate him in the future and they’re licked at the polls. That tells you something different about Trump than you would told if there’s an army of folks who mimic his general approach, demeanor, politics, to the extent they’re discernible, and that that becomes a movement going forward.
Preet Bharara: So part of the reason is we don’t know how the story ends ourselves.
Jill Lepore: We don’t know how the story ends. It’s an incautious scholar who would suggest anything otherwise.
Jill Lepore: My point here is that you couldn’t just look at Trump and not understand the relationship between Trump and these other institutions, or the larger world of dock organizing or the Parkland… The social movements that dominate the political landscape right now are certainly at least as important as Trump’s presidency to an understanding of this era.
Jill Lepore: That’s the approach that I took in looking at all of American history so that you don’t get… like we go through the presidents and then we have these little sidebars about slavery or the emergence of the women’s rights movement, as if those aren’t politics, but that all those things always be on the page together and that the reader be asked to think about the relationship between them.
Preet Bharara: Do you think that causes some people to find your history or your approach unsatisfying, because it doesn’t fit into one binary notion?
Jill Lepore: That’s an interesting question. I don’t read reviews but I get a lot of email from readers, and that’s not a thing that I generally hear. I don’t think I’ve heard, “I wish you had more of an ax to grind.” I think most Americans would like to have fewer people with axes to grind, or maybe more people with very flimsy axes to grind.
Preet Bharara: Should I not read back to you something some a review?
Jill Lepore: It’s your show. You can do whatever you want. I’ll just say no no no no no no no no.
Preet Bharara: This is a review by Andrew Sullivan. He says three things in it, many positive. I just wonder how you react to this because it sort of gets at some of what we’re talking about.
Preet Bharara: He says very clearly, “We need this book.” He thinks it’s a great book, an important book, and some people agree with Andrew Sullivan on various things and some people don’t. And then it says, you, Lepore, “Pander a little to liberal sensibilities. You are withering about the new left,” and then says, “This is not an account conservatives will hate.” Not clear to me why any of that matters and why particular folks within particular ideological camps need to like it or not like it. That’s not your purpose in the book.
Preet Bharara: Do you have any reaction to that?
Jill Lepore: I’m glad that he said it’s not a book conservatives will hate.
Preet Bharara: It’s an odd formulation of a sentence, right?
Jill Lepore: Grammatically, not a lot of big points for Sullivan. It’s a very tentative statement. He’s backing into saying something.
Jill Lepore: But I appreciate that and that was very much in my mind and I say in the introduction, “I’m trying to build a bridge between what seemed to be completely incompatible views of the world.” I would say that I’ve actually got a lot of mail from conservative readers. I didn’t know a lot of the stuff. This stuff was really helpful and I also treat the origins of the modern conservative movement at great length. This is not something that’s done in American historical accounts. I spend a lot of time with Phil [Slaughly 00:43:10], for instance. I treat the evangelical movements of the 19th century with great attention and great respect, and also the fundamentalist movement as I said earlier.
Jill Lepore: I’m pandering to liberals? Who in the sense that like I’m withering about Bill and Hillary Clinton, both of whom come across as dastardly in my account. I would say I’ve heard most from people that I was unable to restrain myself in being clear that I’m no fan of the Clintons, and that’s a failing because the rest of the book… people would say… is far more even-handed than that.
Jill Lepore: So maybe Sullivan missed that or maybe that just seemed so obviously true to him.
Preet Bharara: I’m going to send him your email.
Preet Bharara: So you talk a lot about liberalism and liberalism being at risk, and you talk about nationalism. Can we define our terms? What is liberalism and what is nationalism?
Jill Lepore: We can define our terms but I hope all the mail that disagrees and quibbles with our definitions goes to you and not to me.
Preet Bharara: It probably will.
Jill Lepore: Yeah.
Jill Lepore: Liberalism and nationalism are really born together. They’re the intellectual products of the 18th century, of the American Revolution, and especially of the French Revolution. The liberalism that emerges in the late 18th and 19th century is a commitment to the idea that people should be free and that governments are instituted among… in the case of this historical liberalism… men to guarantee the rights that we are endowed with by nature, and to offer that guarantee by way of constitutions: in the case of the United States a written constitution. Among the guarantees that a written constitution in a liberal nation state has to offer is the political equality of its citizens.
Jill Lepore: Nationalism, which really is more closely associated with the French Revolution than the American Revolution, is the idea that this liberalism can best be expressed through the nation state as a rights-granting institution. In this little book, This America, I talk about the long history of liberal nationalism and the tendency of nationalism always to become illiberal, around the world but also tracing that through the history of the United States. It is a much more argumentative than narrative book, because it was written as an argument that liberal nationalism remains important, and that among the reasons that liberalism is so frail right now is that liberals have failed to defend the nation state.
Preet Bharara: Is it really frail? How often has it been frail?
Jill Lepore: It has often been frail and yet strangely durable, too.
Preet Bharara: The reason I’m asking is how alarming is the observation that liberalism is frail, because a lot of people think that the sky is falling and a lot of people are filling a lot of time on the airways talking about how democracy is in its death throes in this country, and then people say, “Remember, we had this thing called the Civil War. We had the upheaval of the ’60s.”
Preet Bharara: Based on your scholarship and writing, are there other times that have been more difficult where liberalism has been frail than this time?
Jill Lepore: I have two answers to that question. One is yes, there have been other times, and the reason it’s important to assert that is to contest the frame of the question itself.
Preet Bharara: I knew you were going to do that.
Jill Lepore: And then you’ll come back at me and you’ll find me at an inconsistency.
Jill Lepore: I think it’s important when people ask, “Have Americans ever been so divided? Has our commitment to liberal ideals ever been so weak?” to remember that Americans include people who have been held in slavery and who were held in a form of second-class less-than citizenship under the regime of Jim Crow. If we accept that American history is a history of all of us, then there is no time in the era of slavery before 1865 or before effectively equal rights under the Civil Rights Act of 1964 and the Voting Rights Act of 1965… There’s been no time in any of those centuries that was not more divided than now, it’s just that people who count essentially as a shadow political party… enslaved people and people held in the regime of racial segregation… a completely powerless political party, but nevertheless a group of people with a shared political interest and objective… are so wholly disenfranchised that the very idea of a commitment to liberalism is a lie.
Jill Lepore: The reason things feel or are more difficult now… if you think in the years since 1965, also the year of the Immigration Act of 1965… is that we have much more inclusive politics, and it’s therefore messier politics.
Preet Bharara: Right. The world is different now, is maybe an odd way of thinking about it. It’s like when you talk about what something costs today: you adjust for inflation, because knowing that something cost a dollar in 1890 doesn’t tell you a lot because you don’t know what you could buy for a dollar back then. In some ways, adjusting for justice inflation, we are now at a point where lots of people have more rights than they had before.
Preet Bharara: Are you in some way saying it’s a little bit silly to look back at the 1850s and say, “That was worse. Stop complaining.”
Jill Lepore: Yeah. Worse for who? It’s just not worse.
Jill Lepore: I said I had two answers. The first answer is that. The second answer is that there is reason to be very concerned about now. I would say that for most of my career as a historian, the thing that… Journalists always historians a question like, “Has it ever been this bad? Is there a precedent for this?” And I would always…
Preet Bharara: I’m going to stop asking that question.
Jill Lepore: No no no, it’s an important for us to question, but it’s like, “Could you ask me something else?” And I would always say, “Yeah, it’s been this bad.” I’m not even interested in thinking about that anymore. There’s a kind of serenity that comes from the study of the past that’s like, “You know what? We’re not dying of malaria. I don’t have small pox scars. My infants didn’t die in infancy. Don’t talk to me about bad.”
Jill Lepore: That said, since 2015, I would say, I’ve begun to have a more jaundiced answer to that question and say, “Some things are actually a little worse.”
Preet Bharara: What happened in 2015? What are you talking about?
Jill Lepore: A lot of things happened in 2015, but I guess maybe last summer with the migrant children separated from their parents, I thought, “This is as bad.” The numbers involved compared to the scale of other atrocities is very small, but the fact that we weren’t all in Washington demanding that that end immediately… like the whole country in a sudden huge outrage… that felt to me like a different moment from any moment that I have lived through, and I’ve been around for a while.
Jill Lepore: I spend a lot of time thinking about the 1930s, when there’s a demagoguery in the United States and a significant fascist voice on the radio. There’s threats to liberal world order all over the world. And yet there were, in the 1930s, eloquent writers… including poets and artists and filmmakers… who defended liberalism. Their defense of liberalism in the 1930s was crucial to the success of the New Deal for all of its limitations, for failing to address Jim Crow, and I’m not sure that we have, at this moment, that same defense.
Preet Bharara: Do you think that Donald Trump is a demagogue?
Jill Lepore: Yes.
Preet Bharara: Were you in any surprised that the United States of America could elect a demagogue?
Jill Lepore: Yes.
Preet Bharara: Why? I’m surprised that you’re surprised, because obviously the study of history is a study of the past, but it teaches you something about what is possible and what the country is capable of.
Preet Bharara: I remember reading somewhere a writer from South America thinks that before Trump got elected that there’s nothing to say that a demagogue can’t get elected in America, just like one can get elected in South America or in Europe. So why were you surprised?
Jill Lepore: Maybe there really is just a kind of Pollyannaism. Maybe that’s just naivety. I guess I would put an asterisk by my yes, which is to say that I don’t think Trump got elected because he was a demagogue or on the back of his demagoguery. I think his opponent in that election was an incredibly weak candidate who waged a terrible campaign and I think that the political opportunity available to Trump in 2016 had to do with the failure of progressives from Bill Clinton onward to offer policy reforms that relieved the suffering of the people who… a century before… had been populists from the left.
Preet Bharara: But you’re talking about the general, and often when I ask that question I get that answer.
Jill Lepore: Okay, how’s he win the Republican primary?
Preet Bharara: Yeah. He beat 16 people. That wasn’t because Hillary Clinton was weak.
Jill Lepore: That’s a good point.
Jill Lepore: I spent a lot of time in 2015 writing about public opinion polling, because I had an assignment to do that. I wasn’t like something I sought out. But I talked to a lot of very reputable public opinion survey institutes like Pew and people at Gallup about… Do you remember that very first 17 person GOP debate?
Preet Bharara: I do.
Jill Lepore: That huge stage and it was going to be on Fox News, and Fox had decided to separate out the grown ups table from the kids table of the debate. They would use the average of five public opinion polls. This was maybe June of 2015. They would do that to separate people out and also to place them at a particular location on the stage and then also to decide what proportion of the questions should go to them and what amount of time each of those candidates should have.
Jill Lepore: If you recall, all of the reputable polling agencies… [inaudible 00:52:02], Wall Street Journal poll, Pew… refused to participate and said, “This is a completely indefensible use of public opinion measurement. This is only going to measure the fame of the name of these people,” and Donald Trump has had a TV show for years and is a cartoon character person that is a household name. Then we have other people who are public servants who… love or hate Cruz or Rubio or these people… are not household names, nor Carly Florina or whoever these other characters were.
Jill Lepore: Fox News went ahead anyway and sorted out the field that way and Donald Trump took center stage and it was kind of off to the races from there. There was a lot of blaming going on about Facebook and god knows I would be happy to pile on, but I do actually think the polling industry bears a lot of responsibility: that is to say, the kind of pollsters who participated in that kind of charade very early in the political process, which elevated a candidate to the stage that then it became quite clear to especially other cable news stations how great it is to have Donald Trump on screen in terms of their revenue. Everyone remembers when CNN did the empty podium, where you’d be watching for 45 minutes: an empty podium where people were just waiting for Donald Trump. There’s never been a reckoning about that.
Jill Lepore: I guess I think that is a really piece of this story that we forget as we focus on social media and Russian interference. I think this is a very home grown distortion of the campaign of Trump that the media has a lot to answer for.
Preet Bharara: Going back to something I said before, if Trump were to get reelected, how do you think that affects what history will say about the country and how will you feel about the country then?
Jill Lepore: I think historians walk around with a graph, like with an X-axis that’s time and a Y-axis that’s something else, and you have a certain kind of narrative of the history of the United States: maybe a march towards progress in terms of realizing the promise of the Constitution and fully guaranteeing equal rights.
Preet Bharara: And there are setbacks along the way but you’re generally moving forward.
Jill Lepore: The way Thurgood Marshall talked about the 200 years since the Constitution on the bicentennial in 1987, it’s like, “These 200 years are a story of incredible change,” and we’re looking at a rising curve. You can take that down all the way up to the point where Barack Obama is inaugurated in 2009.
Jill Lepore: Then Trump, where you plot that dot on the curve is a very different place. If this is a one-off, one term presidency and whoever of either party is elected to the White House in 2020 maybe is in a completely different part of that grid, then that’s just this outlying dot. But if we have two terms of Trump followed by Trump-like figures, or two terms of Trump followed by some non-Trump figures but then a kind of resurgence of Trumpism, then our arc of American history looks very different.
Preet Bharara: That’s a very significant thing you’re saying: that this presidency, if it’s replicated in the next term, is so consequential that it throws off the entire chart that you, a well respected historian, have kept in the back of head over 200 plus years of American history. That’s how big a deal this presidency might be?
Jill Lepore: I think if it becomes the new vector of the line as opposed to just some weird moment… and that we really can’t know. In fact, that will be determined by the American people.
Preet Bharara: That’s a good segue to the other thing that may happen, and that’s impeachment. You spend some amount of time talking about the couple of times there has been an actual impeachment trial and the question that is swirling around that people keep asking about is what is the standard for impeachment? Politicians are not very consistent on this. Depending on whether it was Nixon, Clinton, or now, they have different views about whether the House should have a vote, whether evidence should be brought to bear in a particular way. And one question that I’ve addressed on the show, but I know you’ve talked about this from a historical perspective, is what is the requirement that the president of the United States have committed an actual statutory crime in order for impeachment to be appropriate?
Jill Lepore: Yeah. There is no such requirement.
Preet Bharara: There’s not?
Jill Lepore: There is none.
Preet Bharara: Okay, we can go home now.
Preet Bharara: Let me just quote back to you something that you have said recently, and I’ve not seen it put in quite this particular way. You say, as you just remarked, “Nothing in American history, from the founding of its earliest colonies, suggests that an impeachable offense has to be an indictable crime: not for the king’s men, not for judges and justices, and not for the president of the United States.” But then you say, “Most of us cannot commit such staggering outrages as to direct the FBI to spy on our enemies, or enlist foreign powers to interfere in our elections. The president has powers that only a president can exercise or abuse. Were these powers beyond the reach of the people’s power, impeachment would be a dead letter.”
Preet Bharara: That’s an important way of thinking about it that I don’t hear on the airwaves a lot. Everybody talks about Donald Trump as if he’s you and me and the same rules apply to him. In so many ways that we’ve seen through the unfolding of the Mueller investigation, the president can’t be indicted because the office of legal council says that a sitting president can’t be indicted, but you and I can’t pick up the phone and call the Ukrainian president. We don’t have power to abuse in the way only a president does. Not even a senator, not even a governor.
Preet Bharara: Talk about that for a second.
Jill Lepore: Yeah. If you pause and think about it, it makes no sense that the only thing that you could impeach a president for is a crime, something that’s on the books as a crime, that anyone could commit. I mean, there are crimes that only presidents can commit that might still be on the books, and god knows Donald Trump has probably broken a lot of them, but it’s really neither here nor there because we have to be able to hold the president accountable for deeds that he can only do because he is the president of the United States.
Jill Lepore: You can search through the law books from here to when the cows come home and you won’t find specified there this whole series of things that a president could possibly do. I think that’s important to remember. There’s a whole long precedent… I would say a common sense observation about impeachment and what constitutes an impeachable offense. There is also a deep historical argument that supports the position that it’s not necessary that an impeachable offense be an indictable crime. The impeachment of John Pickering, Supreme Court Justice, he was just bananas. Was that 1797 or something?
Preet Bharara: He was one of the first.
Jill Lepore: He just lost his mind and he had to be removed from office and he didn’t have the wherewithal to understand that he needed to step down, so he was impeached. He committed no crime whatsoever.
Preet Bharara: Did he have narcissistic personality disorder?
Jill Lepore: They didn’t have that in the 18th century.
Preet Bharara: Oh, they had it, they just didn’t have a name for it. They had it in droves.
Preet Bharara: This gets complicated for people. Is it also true then, in your view, that certain things that might technically be a crime a president shouldn’t be impeached for?
Jill Lepore: Such as?
Preet Bharara: Small crimes. Turnstile jumping. People are often very confused about the phrase high crimes, which sounds like a big deal, and misdemeanors. The common parlance and understanding of misdemeanor, you think about things like turnstile jumping or a small bore: check fraud or something. Should you upend the entire country and undo an election for a minor crime? It depends.
Jill Lepore: This is a New Yorker piece I wrote recently. Every impeachment is an experiment in what impeachment is.
Preet Bharara: There’s not enough precedents.
Jill Lepore: There’s such a slender body of precedent on which to draw general rules.
Preet Bharara: Don’t you love it when politicians… and they’re in both parties… talk very augustly about the historical precedent of impeachment?
Jill Lepore: Right, and they’re talking about two cases.
Preet Bharara: Two times it happened. In particular, they talk about… in this case on Trump’s side… that no one has ever been impeached for conduct like this. I don’t know if that’s a point in your favor. No president has actually ever engaged in conduct like this, and then the other side can point to all sorts of writings by the founders showing that one of the reason they care about impeachment… and not just because of the worry about corruption of the electoral college… was because they were concerned about foreign influence, and we’ve not had in those other two times deep and serious credible questions about foreign influence.
Jill Lepore: No. In 1974, Democrats on the House impeachment inquiry committee kept hearing from Republican members, “Okay, you’ve showed Nixon has done some crummy things. So he’s a rascal, he’s a rogue. But probably all presidents have done stuff like this, we just don’t know it.” The House Democrats said, “Actually, that’s knowable. That’s not a mystery.” So they called C. Vann Woodward at Yale, the historian, and said, “Can you prepare a report for us on all the bad stuff American presidents have done through history? And we need it right away because we’re trying to proceed with this impeachment.”
Preet Bharara: “We don’t need a 900 page Jill Lepore treatment.”
Jill Lepore: So Woodward called up a couple of his friends who were experts in political history in particular areas. They called in their graduate students. Everybody dropped everything, turned in their spring semester grades. They dedicated themselves, assigned all the presidents, wrote this report… it’s a fascinating report… of the presidential misconduct of every president beginning with George Washington. C. Vann Woodward was going to write an introduction assessing whether anything that anyone else had ever done stood in comparison to what Nixon stood accused of, and he was just about to turn in the report and Nixon resigned. Woodward was really pissed off, because he was very proud of this report and they worked all summer on it.
Preet Bharara: Did it see the light of day?
Jill Lepore: Yeah. It never got entered into the Congressional record because it was not formally submitted. He was about to write his introduction. So he called a publishing house and said, “Will you publish my thing? I’d like to publish it because we did all this work.” He writes a scathing introduction about how nothing anyone else has done ever before is anything like what Nixon had been accused of doing. It’s published in huge numbers and then it just tanks. Everyone’s like, “Thank god we don’t have to think about Richard Nixon any more,” so no one reads it. It just disappears.
Jill Lepore: I went to check it out from the Widener Library at Harvard last year for a piece I was writing for the New Yorker, and I was only the second who had ever checked it out of the library since 1974.
Preet Bharara: Ever?!
Jill Lepore: Yeah, no one had read it.
Jill Lepore: So I looked up all the historians who had worked on that report who were still alive. One of them was 95. One of them was in their late 80s. I said, “Remember that report?” They had great stories about it. Super fun talking to them. I said, “What if you were asked to update it now? Compare what Trump…” This was a year ago. We’re still in the Michael Cohen moment, maybe the Paul Manafort, Michael Cohen… You’re like, “Oh Jesus, what next?” They all just laughed when I said, “How do you compare everything up to Nixon including Nixon with Trump?” They were like, “It’s not even close.”
Preet Bharara: Not even close.
Preet Bharara: Who was the worst… if you can recall from reading that report last year… before Nixon?
Jill Lepore: Harding was bad and Grant was unintentionally bad. Grant had some… I think it was his attorney general, this guy named Orville something.
Preet Bharara: Redenbacher? No, that’s the popcorn guy.
Jill Lepore: He put a desk for a friend of his in his office to just accept bribes, and Grant felt really sad for him. His friend killed himself when it was discovered. I’m pretty sure it was Grant. He had Orville appointed the keeper of the lighthouses, so he had to spend the rest of his days going from lighthouse to lighthouse inspecting the lighthouses, which I think maybe Guiliani could take that up.
Preet Bharara: And who were the most pristine? George Washington because he couldn’t tell a lie, right?
Jill Lepore: Washington wasn’t involved in any particular chicanery. Lincoln is pretty clean.
Jill Lepore: The thing is, what C. Vann Woodward said is that most of it’s just petty graft and political appointments to lesser people who didn’t deserve the appointments and then who later got into trouble. It’s very infrequently that the president himself had done something bad; it was actually that he had appointed favorites, rewarding campaign donors, whatever, you used the office for their own financial gain.
Preet Bharara: So the touchstone from your perspective on impeachment for Trump or anyone else in future is not necessarily the technical violation of a statute, but fair to say with clear assessment of abuse of power and general fitness for office: that, by definition, if two-thirds of the Senate… a bipartisan supermajority agrees… that suffices.
Jill Lepore: I would add to that definition: that it actually has to betray the national interest. That’s where the turnstile jumping doesn’t matter. I mean, I suppose you could attempt an impeachment for a misdemeanor in that sense, but in my reading of the understanding of impeachment, where you can add to the end all the judicial impeachments… it’s not just two. We have more than an N of two. It has to be an exertion of the power of the office that betrays the national interest and abuses your own power, and in some ways betrays the spirit of the republic.
Preet Bharara: Should Bill Clinton have been impeached, and if yes, should he have been convicted at trial? Where do you put that in the spectrum of…
Jill Lepore: Yeah. I don’t see it as having been impeachable. I see it as having been really bad, pretty crummy.
Preet Bharara: But there’s an example: technical perjury. There’s an example of an actual crime that, in your view, doesn’t rise to the level because it was not about the national interest.
Jill Lepore: Yeah. The high in high crimes… one interpretation is it means high crimes and high misdemeanors… is rising to the level of the interest of the state.
Preet Bharara: The other thing that people forget about all of this that makes no sense to me, when you say that high crimes and misdemeanors and the impeachment function in the Constitution needs to be coextensive with the enormous criminal code, is that the result of being convicted of crime often means you’re subjected to prison. The consequence of being impeached and convicted in the Senate is you just lose your job, and there are all sorts of contexts in which… including police officers, teachers, all sorts of folks… who are the subject of a criminal prosecution or a criminal investigation… there’s not enough quantum of evidence to prove guilty beyond a reasonable doubt in connection with the violation of a criminal statute, but they get fired anyway. They get removed from their office.
Preet Bharara: Given what the consequence is who’s the subject of the inquiry, it doesn’t make a lot of sense that the standard for politicians in the Senate and the House should be criminal violation.
Jill Lepore: I entirely agree with that.
Preet Bharara: I got you to entirely agree with something. I’m very happy about that.
Jill Lepore: Somehow I’m agreeable.
Preet Bharara: Do you make political predictions?
Jill Lepore: I don’t. When you get a PhD in history, they make you swear a blood oath that you’ll never offer a prediction.
Preet Bharara: Not every historian writes about the present.
Jill Lepore: Yeah, you’re not supposed to. It’s a violation of the guild.
Preet Bharara: So why do you do it all the time?
Jill Lepore: I think it’s been a real sorry consequence for public discourse that historians backed out of public life after Vietnam, and with good reason. I think that the idea that what historians is prop up the nation state and defend the nation state in public and that the nation state required critique… Thinking back to Vietnam, there was a complicity of intellectuals, certainly social scientists…
Jill Lepore: I understand the retreat and I understand the argument against presentism, but I do think that when you turn on the television and you watch cable news and there are people that are offering up historical analysis, they’re not historians generally speaking. There are some, and there are some excellent people [inaudible 01:06:33] with a broad brush indict all these people, but there’s a lot of people that are hucksters, and they’ll offer up whatever pap about history that seems to be selling at the moment.
Preet Bharara: Name a huckster.
Jill Lepore: I’m not going to name a huckster.
Preet Bharara: We’ll bleep it out.
Jill Lepore: I’m trying to think of a dead huckster.
Preet Bharara: Oh, dead hucksters you can defame because it’s not defamation. It might be a high crime or misdemeanor.
Jill Lepore: That’s what I was thinking.
Preet Bharara: Do you have advice for everyone, or more specifically for young women, who want to follow your path?
Jill Lepore: People ask me that a lot.
Preet Bharara: That’s another one of those questions [crosstalk 01:07:08].
Jill Lepore: No, it’s a fair question. I’ve been really lucky and I’m a messed up person, but the way I’m messed up is I need to write all the time. If I’m not writing, I really am a mess. It makes me super happy to write.
Preet Bharara: I’m the opposite. What I really need is to not be writing.
Jill Lepore: Most people are the opposite. I’m like, I can’t be a model. That’s just a derangement. It happens to work really well for me, but if you don’t have that intense need and desire to whatever the thing it is… That happens to work really well in my profession. I can’t say, “Emulate me.” If it were anything else, it would just be a vice: the need that I have to be always writing something.
Jill Lepore: I do think rejecting the you have to always… to the degree that one’s resources in whatever field or job you have it is possible to do and not lose your job… Rejecting the bullshit self-importance… I’m sorry. Unless you’re doing heart surgery, most of what we’re doing every day… not that this isn’t a really important conversation… Most of us would be like, “I’d rather be at the little league game.”
Preet Bharara: I’m glad…
Jill Lepore: Here’s the thing. This is the day I was thinking I would teach my kid how to ice skate. Okay, sorry I never taught my kids how to ice skate. I really regret that. “This is not the day that I need to be here at this board meeting. I’m resigning from the board.” I just feel like we don’t allow that. That seems like weakness. How can that not be strength?
Jill Lepore: Going back to your Clarence Darrow, just to circle around, it is an act of integrity to defend the damned, and it is an act of integrity to turn away from an assignment in order to actually be there with people that you love and take care of them: your parents, your children, your cousin, someone from work, someone who lives in your building. Caring for people is what we do.
Preet Bharara: Professor Jill Lepore, it’s been a pleasure. Thanks for being on.
Jill Lepore: Thank you.
Preet Bharara: The conversation continues for members of the CAFE Insider community. To hear the Stay Tuned bonus with Jill Lepore and get the exclusive weekly CAFE Insider Podcast, got to café.com/insider. Right now you can try a CAFE Insider membership free for two weeks at café.com/insider.
Preet Bharara: That’s it for this episode of Stay Tuned. Thanks again to my guest Jill Lepore. If you like what we do, rate and review the show on Apple Podcasts, or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at Preet Bharara with the hashtag askpreet, or you can call and leave me a message at 669-247-7338. That’s 669-247-PREET. Or you can send an email to [email protected]
Preet Bharara: Stay Tuned is presented by CAFE. The executive producer is Tamara Sepper. The CAFE team is David Tatasciore, Julia Doyle, Carla Pierini, David Kurlander, Calvin Lord, and Geoff Isenman. Our music is by Andrew Dost.
Preet Bharara: I’m Preet Bharara. Stay tuned.