Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to Stay Tuned. I’m Preet Bharara.

Elie Honig:

Number one, there’s always an intimidation factor, right? It’s hard to flip against the mob boss, it’s hard to flip against Donald Trump, it’s hard to flip against any powerful person because you know that you’re going to be publicly pillared and filed and cross-examined and attacked.

Preet Bharara:

That’s Elie Honig. He’s a CNN senior legal analyst, and a former state and federal prosecutor, plus he’s a host and contributor here at CAFE. Elie served as co-chief of the Organized Crime Unit at SDNY when I was the US attorney. He earned the reputation as tough and smart in the courtroom with a knack for flipping mobsters into cooperating witnesses. Elie’s new book, Untouchable: How Powerful People Get Away with It, takes a page from his experience successfully prosecuting top mob bosses and explains how Donald Trump has been able to evade the law with countless misdeeds in recent years. We discuss how prosecutors decide which cases to pursue the strategic use of intimidation tactics by the defense and Elie’s view that Attorney General Merrick Garland should take a more aggressive stance in investigating former President Trump. That’s coming up, stay tuned.

QUESTION AND ANSWER:

Now, let’s get to your questions.

This question comes in an email from Austin who asks, what do you make of the news that the FBI searched the Penn Biden Center in November? Is that a big deal? Now, it’s interesting you asked this question, Austin, because literally as I’m recording this, in the 10:00 AM hour of Wednesday, February 1st, the news just broke that the FBI, as we speak, is searching a third location associated with President Joe Biden, his Rehoboth beach house in Delaware. So I think one thing is important to keep clear, even though there are a lot of efforts for political reasons and some people in good faith to equate the searches and the document issues relating to Biden, to the searches and document issues relating to President Trump. Now, to be sure, the mishandling or misplacement of documents with classified markings is a bad thing, and there should be some reform at the end of administrations as Joyce Vance and I discussed on the CAFE Insider Podcast as to how those documents are disposed of and properly preserved and taken away from former presidents who then become private citizens.

It is not a small thing for a team of FBI agents to be scouring locations associated with a sitting or former president, of course, but the great distinction is in the case of Joe Biden, now with three searches, I think, under the FBI’s belt, one at the Penn Biden Center in November that you referenced in your question, another back in January, a couple of weeks ago at his Wilmington home, and now as we speak, at his beach house in Rehoboth, Delaware. Each of those according to reporting has been consensual. In other words, no search warrant had to be obtained, there was a cooperative posture between Biden’s lawyers and Biden’s staff and Biden’s team and Biden himself with the FBI. And I think the reason for that is Joe Biden wants to look like he’s being transparent, and I think he is being transparent. Part of the problem is that after the Biden team itself did some searches of one of the properties and came up with classified documents and turned them over to the archives and the authorities, later, FBI agents found still additional documents.

So I think in an abundance of caution, both sides, the Biden folks and the law enforcement folks, particularly now that there’s a special counsel in charge of overseeing the investigation and the inquiry, they want to be able to say that every single last document and every single last location has been found and accounted for. That’s why you’re saying 12 and 13 hour searches at these locations. Is it a big deal, Austin? Yes, it is, but it’s not the same as what happened with Donald Trump. Just to repeat, again and again and again, despite beginning with the cooperative posture from the FBI and from the National Archives, the Trump team dissembled and looks like they obstructed, they had to be issued a subpoena, they made a certification that they had turned over the documents, and when it turned out that wasn’t true and they had to go to great lengths to secure a search warrant from a federal district court judge to do the search, that’s not cooperation.

But of course, that assessment is not up to me, and it’s not up to you, it’s up to the individual special counsels who have been appointed to the two different cases. Well, with Jack Smith, special counsel in the Trump case, think about the facts and circumstances of that matter, separately. Well, with Robert Hur, the special counsel in the Biden matter, think of the facts and circumstances of this case. By the way, Robert Hur started a special counsel today.

This question comes in a tweet from Twitter user @Lemoriarty who asks, with a report saying the DOJ has asked the FEC to step back on the Santos campaign finance investigation, does this mean the DOJ is confident in their investigation? #askpreet. I don’t know if it means the DOJ is confident in its investigation, but it sure does mean it’s serious about its investigation. Obviously, you’re referring to the ongoing and unfolding saga relating to recently elected member of congress in the Republican Party George Santos, who I think has broken every record for lying to the public in his quest for public office, he’s lied about his education, he’s lied about his religion, he’s lied about his past, he’s lying about his present, he’s lied about his mother. There’s almost no subject on which he’s not prevaricated. However, none of that, unless it was done under oath or in an official proceeding, constitutes a crime and certainly not a federal crime.

But this new reporting from the Washington Post about the request for the FEC, the Federal Election Commission, to hold off on any enforcement action against George Santos, I think, is pretty significant. We’ve been wondering which offices are investigating what. We know the Eastern District of New York, the US Attorney’s office has opened an investigation. The reporting from the Washington Post suggests that the request to the FEC, however came from the public integrity section at Main Justice, which may not be doing its own independent investigation, but may very well be coordinating with and cooperating with the Eastern District of New York US Attorney’s Office investigation. Now, the EDNY and Main Justice may be looking at various things relating to the finances of George Santos, but the specific request to ask the FEC to step back I think means that they are very, very seriously looking at campaign finance violations.

What would be the nature of those violations? Well, we don’t know yet. It could be a straw donor scheme. It could be improper conversion of campaign funds. It could be the taking in of campaign contributions that were over the federal limit. Any one of those things might constitute a federal crime. Now, it is often the case, and we’ve discussed this before on the show, that federal criminal prosecutors don’t like for there to be parallel civil enforcement actions where witnesses’ testimony is being taken in multiple forums because that provides grist for cross-examination of people’s memories and statements differ from one day to another day. So generally speaking, criminal prosecutors like to be the only show in town. We’ve seen some tension with respect to that in connection with the January 6th investigation and inquiry by the Committee in the Congress versus what the Department of Justice is doing. And prosecutors don’t like that.

Sometimes it’s the case, the federal prosecutors will ask a civil enforcement entity to step back and hope they will do so voluntarily. In the case of the Federal Election Commission, however, something you may not know is that they ordinarily do comply with DOJ requests to hold off on enforcement. And why is that? There’s a bit of an unusual arrangement. DOJ and the FEC have both signed a 1977 memorandum of understanding that addresses their overlapping law enforcement responsibilities as the Washington Post reports. Meanwhile, a recent poll suggests that 78% of the voters in George Santo’s district want him to resign. At the same time after a lot of pressure from people within his own party, and of course, outside his party, George Santos voluntarily recused himself from his committee assignments amid all these investigations that are going on. So what will happen with all these investigations? Stay tuned.

This final question comes in a tweet from Twitter user @owedtojoint. It’s pretty good. It’s pretty good Twitter handle, @owedtojoint asks, dear Preet, what are your thoughts on almond milk? Can it ever be as viable as the real thing? Now, this is a funny thing. There are some controversies in the United States of America that are important, and there are some that are very silly, and I tend not to step into them, but I got this question on almond milk and I have some thoughts on it, so I thought I’d respond. There are people who think for some reason that if you dane to drink some substitute milk, whether it’s almond milk or soy milk or something else, that somehow you are un-American or woke or virtue signaling. And it’s a silly thing on the part of, I’ll use the term the haters. I’ll speak from the experience of my family.

I have three kids, two of whom had allergy issues, and so growing up drank almond milk, it was their favorite kind of substitute milk. My third child did not have those allergy issues, but I guess in unity and solidarity with his siblings, he began drinking almond milk too. And even though those allergy issues do not persist, all three of my kids at many of their meals during the week when they’re home drink almond milk and it’s fine, and it’s tasty and it’s delicious and it’s nutritious and it has fewer calories and it’s a great drink. Will it ever be as viable as the real thing, #owedtojoint? Well, my family, it is.

THE INTERVIEW:

Former prosecutor Elie Honig’s debut book, Hatchet Man was a critical take on former Attorney General Bill Barr and his enabling of Donald Trump’s misconduct while president. His latest, Untouchable, examines how those with power and influence manage to dodge the law and use the system to their own benefit. Elie Honig, welcome back to the show.

Elie Honig:

Preet, it’s great to be with you. Thank you for having me. I was going to do the heartfelt, corny, sincere stuff up front, but I decided-

Preet Bharara:

You do that the middle?

Elie Honig:

… I’m going to do it at the end because I don’t want to be accused of trying to soften up the questioner here, but I am going to do it.

Preet Bharara:

I’m pretty softened up already, Elie. You remember the CAFE family? You do podcasts for us, you write for us, so I want to welcome you to the show once again and congratulate you on your book, Untouchable. It’s so interesting that you decided to write a book about the caste system in India.

Elie Honig:

That’s been pointed out to me. Actually, not to drop names, but Dr. Sanjay Gupta explained to me what this means in depth. I honestly did not know this, but a couple weeks ago, he grabbed me and he explained what that means to me. So I’m learning.

Preet Bharara:

Well, so I assume that this is an indirect reference in part to the movie by Brian De Palma, The Untouchables. Was this a direct or indirect or inadvertent nod to Al Capone?

Elie Honig:

It was advertent and it was certainly meant to be indirect. But yeah, I mean, we wanted to raise the feeling, the notion of the mob. And Preet, of course, as you know, I was your organized crime chief at the Southern District of New York. And I love to tell mob stories, there are many of them in this book. And I have to just tell you one thing. My mom has read this book now and she said, “I had no idea what you were doing, living this crazy life.” She would’ve been even more worried than she was. But I do tell a lot of those stories in this book, A, because they’re fun and interesting, but B, because I think they helped me illustrate some of the points that I want to make and some of the parallels.

Preet Bharara:

So I should mention the subtitle. The book is called Untouchable: How Powerful People Get Away with It. How many chapters do you spend on how John Gotti Jr. got away with it?

Elie Honig:

Oh, okay. So for the listeners, that’s a little bit of a burn.

Preet Bharara:

Look, you spend a lot of time talking about a lot of other people’s cases, John Gotti Jr., son of John Gotti, who was the prosecutor in charge of that?

Elie Honig:

So that was me, Elie Honig, although I did not charge it, you’ll remember that Florida charged it and it got sent back to us. But look, I talk about that, that’s the entire last chapter of my first book. That was a case that I led under your auspices when you came back as US attorney. In defense of you, you just came in for the very end, we can’t blame you. But that jury hung, and I learned a very valuable lesson from that. And I’ll tell you, Preet, I opened this book with a story of a separate mob prosecution, a less high profile figure, but a case that I questioned the way I handled it, and I’m not so sure I’m satisfied with the result that I obtained.

It’s a mob case against a very powerful boss who authorized the hit of his own nephew, and that is a springboard for me into asking the question of myself and others. In that case, we convicted a whole bunch of people in this murder, but the most powerful guy, I don’t want to spoil it, but ends up getting the lowest sentence. I’ll put it that way.

Preet Bharara:

So powerful people, as we know, have many advantages. Sometimes they’re powerful by virtue of their celebrity, sometimes they’re powerful by virtue of celebrity and/or money or positions of power in government or otherwise. So we’re pretty familiar with advantages that powerful people have. You focus on the advantages that they have when they come across the criminal justice system, when there is some evidence to suggest they have crossed a criminal line and engaged in misconduct. We should say at the outset, sometimes powerful people are not charged because they’re not guilty or there’s insufficient evidence to prove them guilty. Fair?

Elie Honig:

Absolutely. And look, I never want to be in the group that just calls for criminal charges as a cure all to everything, every time someone does something wrong. And you’re absolutely right, there always has to be individualized consideration, can I prove a criminal case against this person beyond a reasonable doubt? Yes.

Preet Bharara:

But you say also, and I have a different way of talking about this, you say the bar is higher for prosecutors to charge rich people, powerful people and celebrities, than to charge ordinary folks. I want to go into that a little bit because I think sometimes people misunderstand what that means. I mean, you point out throughout the book, and we’ve talked about this before, if there’s somebody who’s a very significant public figure, more likely that your supervisors all the way up to the top are going to be reviewing the indictment, reviewing the proof, asking you a lot of questions about it, that’s fair and that’s legitimate. And if that you agree with that, explain why that is so.

Elie Honig:

I do agree with both things that you said. First of all, it is a fact that prosecutors will look more carefully. Higher levels of prosecutors will look more carefully at a case against a high profile person. That’s my experience, but don’t take it from me. It’s in the justice manual, what we used to call the US Attorney’s Manual, it’s a public document, it governs all prosecutors, federal prosecutors across the country. And there are several provisions in there that say if you have a high profile case, it’s likely to draw media than you are to kick it up depending on the specifics, but higher and higher levels. I also don’t think that’s necessarily corrupt or evil. As I say in the book, “There are good reasons for this because prosecutors have to protect their own reputation, their office’s reputation, and a failure in one high profile case.”

The reality is, can swamp an entire prosecutor’s reputation, an entire office’s reputation. I actually make that argument about Cy Vance. I say, look, Cy Vance in my view batch two or three high profile prosecutions of Harvey Weinstein of the Trump children, that’s all I think 95% of people remember about him, not the tens of thousands of successful regular cases he made. But, Preet, I do give some examples of this book, and I think it results really the bar being a bit higher, as I say for certain people, and I’ll give you a couple examples. During, I don’t know what we call this period, the pre-interregnum, maybe the time between when you had left the office and when you came back as US attorney, I had a case where we came across a high profile, famous major league baseball player. I don’t say his name in the book, I won’t say it here, maybe we’ll make it available to Insiders.

But this was a gambling case where this guy was caught up with one of the mob families. If this guy was not famous, if he was not a prominent major league baseball player, I would’ve made that decision myself as a fourth year, whatever I was, US attorney. But because it involved the boldface name, it had to go way higher up the chain, was subject to way more scrutiny. We ended up not charging him. I think that’s probably where I would’ve come down as well. But the point is, he got a different level of look, a different level of examination by the office because he was famous.

Preet Bharara:

Yeah. I just wonder about that a little bit. And maybe both are true or it depends on the circumstances that with somebody who is powerful and where all eyes will be on the office, is it a matter of requirement of more proof or just more confidence of your proof? And I think there’s a distinction there, isn’t there?

Elie Honig:

I don’t know. I don’t know what the distinction would be, more proof or more confidence of your proof. I mean, to me, it was always about quality of proof, not so much quantity. No. But I do think-

Preet Bharara:

As a legitimate and understandable matter, the way offices work, particularly overworked and busy places, I as a US attorney or you as a significant supervisor either at SDNY or at the New Jersey Attorney General’s office where you also worked, you’re not reviewing overnight, every day, every case of the people who are reporting to you. And you can’t possibly do that, you have to be selective. And sometimes there are cases that are not about famous people, sometimes there are cases that are very important because a murder was involved, or the victims were vulnerable, or it’s a particular scourge in the community.

I don’t want people to get the misimpression, the only cases that supervisors and bosses care about in offices are when the potential target or defendant is famous or powerful. There’s lots of other reasons why cases can be important. Cases involving terrorism, frequently, the targets there are not famous at all, they’re unknown and they’re not even identified until after the fact. But certainly it’s the case because of public confidence and because of scrutiny that those cases will be looked at a little bit more by the higher ups. But do you think that there’s a different quantum of proof that’s required or it’s the case that people are looking at at a higher level to make sure that all the T’s are crossed and I’s are dotted, and no mistakes are made?

Elie Honig:

So that’s an interesting question, and I agree with what you said there. I mean, sir, I was a boss in New Jersey. We were doing different types of cases. I mean, even a US attorney or an attorney general of the state spends 95% of their attention on the regular cases, whether it’s a powerful terrorist drug lord, whatever, who is not necessarily famous, there’s only a certain amount of bandwidth that you have. So I get what you’re asking. I mean, I think the truth of the matter is you do require a little bit more certainty, a little bit better quality proof before pulling the trigger on a high profile or politically connected offender. I’ll speak from my own experience here. I give an example from when I was at the AG’s office. I was in charge of the entire criminal side. We did a series of cases there against people who were committing fraud relating to hurricane or Superstorm Sandy. New Jersey made millions of dollars available to people who had lost their primary homes, meaning the house where they live.

Well, what happened, many, many people, hundreds of people, frankly, took their shore houses down the shore and said, “Oh, that’s my primary home,” and then may recovered tons of money, and that’s a fraud because the money was not designed for shore houses or second houses, it was designed for primary residences. We churn these cases out, Preet, by the dozen. I think we ended up doing over 200 or something. They would come to my desk in big batches, every couple months I’d get 15 of them and I’d go, “Yeah, yeah, yeah.” It wasn’t even necessary for me to really look at them. But we got one case where the person worked in the office of then Governor Chris Christie. And if you go back in time here, this is when Chris Christie is getting ready to run for president.

And one of his big platforms is how great a job he did responding to Superstorm Sandy. He wasn’t involved in this, but it wouldn’t have looked good. Let me tell you. We pulled that one out of the pile. I scrutinized that one. The attorney general scrutinized that one way more intensely than we would ever have looked for any other. And frankly, I think, if I’m being honest, yes, I did require more proof. We did charge that case, but that case was dead bang. And if there was any question, I probably would not have gone through with it.

Preet Bharara:

So let’s talk about some of the advantages that the powerful have. One that you talk, and there’s a number of ways in which their fame or celebrity or power has an effect on how they’re treated in the criminal justice system. One is the power of intimidation. As you and I know, and as I can tell listeners, I teach a seminar at NYU Law school and I have guests come every week. And you, Elie Honig, have agreed once again to grace my class with your presence when we discuss the issue of cooperating witnesses and how you get people to flip. Now, a certain kind of powerful potential defendant is able to prevent cooperation. True or false?

Elie Honig:

Oh, absolutely true.

Preet Bharara:

How does that work?

Elie Honig:

So there’s a couple ways. There is the sort of ways you might expect. Look, number one, there’s always an intimidation factor, it’s hard to flip against the mob boss, it’s hard to flip against Donald Trump, it’s hard to flip against any powerful person because you know that you’re going to be publicly pillared and filed and cross-examined and attacked. And I give all sorts of examples in the book. There’s also some more subtle ways that I point out in the book that people may not realize beyond the just intimidation fear factor, which is potent. But here’s an example that I give in the book. One phenomenon, I guess, that’s quite common, that people may not realize is quite common is that rich, powerful people, yes, of course, they pay for their own legal dream teams. We remember OJ had his dream team. Even Jeffrey Epstein and I talk about this.

He had his Dershowitz and Starr and I think that had a big impact on why he got off very light the first time in Florida. But what they also do, the really savvy bosses, and I saw this all the time in my mob cases, they pay for other people’s lawyers. They provide other people’s lawyers, which makes it incredibly difficult to flip. And I tell a story in the book about a 20 something defendant mob case where one of the lower guys wanted to flip, but he couldn’t because he had a lawyer provided and paid for by the bosses, by the family. And I won’t give away that story, but he ends up sending his girlfriend on a sort of end run emergency mission to tip us off, and I tell what we had to do to shake this guy loose. And we saw a perfect example of that right in the public sphere recently with Cassidy Hutchinson.

We remember her, the star witness in the January 6th proceedings. She was not able to come fully forward because she originally had this lawyer provided and paid for by the Trump entities. And only when she shook loose of that guy did she come forward and tell the full truth, and it was very, very difficult for her. And by the way, she’s compromised herself because she lied when she had that first lawyer. I think it’s understandable why she lied, but she lied. And the last thing I want to say on this, Preet, is DOJ policy now fully permits us. First of all, it’s not necessarily evil. This happens all the time. Corporations come under investigation, a lot of people, probably the majority of people want to have their lawyer paid for by the corporation. It’s expensive, but as a natural consequence of that, it becomes tougher for them to cooperate.

Now, DOJ, up until 2008, the policy was if you do this, if you are a large group and you’re paying for lawyers for your people, we will count that as a strike against you in assessing whether you’re being cooperative. That was in the book. In 2008, however, with a single swipe of the pen, DOJ change that policy to say, “Eh, it’s fine. We’re not going to hold it against you anymore.” There’s a hilarious statement along the lines of, “We believe that corporate America shares our same interest in transparency.” I don’t believe that. But you know what? That’s been the policy ever since. For the last 15 years we’ve had DOJ under administrations of Democrats and Republicans and nobody has changed that policy. So DOJ is perfectly fine with it, but it does make cooperation more difficult as a practical matter.

Preet Bharara:

Yeah. So can you explain, because this is something that is not well understood and not much spoken about, and I’m glad you raised it. If you have a potential defendant or an actual charge defendant who the prosecutors believe has some interest in cooperating, but they don’t have a cooperative lawyer, are there things you can do?

Elie Honig:

There is a thing, and I tell this story in this book.

Preet Bharara:

Because this is an interesting thing that people don’t know about.

Elie Honig:

Yeah, it’s called, and it has a cool name, shadow counsel.

Preet Bharara:

That’s not like the shadow docket.

Elie Honig:

No, it’s not like the shadow docket, but there isn’t a cloak and dagger element to it. And honestly, I had heard tale of this process, but I never had to use it until that case I told you about. So basically like I said, we charged 20 something Gambinos. This was when you were there. I think he was the 14th guy on the indictment, but he was well positioned, wanted to flip. And by the way, we would charge these guys and hope someone flipped, we came up empty on these guys. But a couple weeks in, the girlfriend contacts the FBI agent, a great agent named Rob Herb Stern and says, I say the guy’s name in the book, Anthony Russo Hootie. They called him Hootie for reasons that I explained in the book. But basically Hootie wants to flip, but he’s terrified because he can’t because his lawyer’s a mob lawyer.

And so, I had to draft up a document basically saying, “Dear Judge, we have this situation. We understand the guy wants to flip, but we can’t really contact him because he’s got his lawyer.” And so what the judge will do, and we walked it over to the judge. I still remember the judge while he read it. We sat there with him while he read it and his face lit up. He said, “Ooh, this is going to be interesting.” And the judge appointed what we call shadow counsel, which is a lawyer who secretly went and visited with this guy, in this case, came back and said, “Yep, they’re right. He does want to flip.” Sometimes it comes back and says, “Now he’s not interested.” But in this case, it came back, “Yes, he does want to flip.” And I tell the story of how we had a mission impossible extraction of this guy, and he did flip and he was very productive. But let me tell you, it took an awful lot of work and gymnastics to get around this.

Preet Bharara:

May I ask, was the issue here that Hootie wasn’t sure he wanted to flip against the blowfish?

Elie Honig:

Oh gosh.

Preet Bharara:

That, ladies and gentlemen,-

Elie Honig:

Good Lord.

Preet Bharara:

… is my one dad joke for this episode.

Elie Honig:

Listen-

Preet Bharara:

I’m waiting for you to finish up that answer so I can make my Hootie and the blowfish here.

Elie Honig:

I am a proponent of dad jokes. That one is rough even for me. But let me say this about Hootie. We did ask him, of course, because you and I maybe share the same sensibility. One of the first questions I asked him, when I sit down to proffer him, this guy knows about all sorts of mob stuff. I said, “Why the hell do they call you Hootie? Is that for the blowfish?” And he goes, “No, I just had this weird habit that when I’d see a guy in Queens, one of my friends across the street, I just greeted by going, Hootie who? Hootie who?” I have no idea what that means or if that’s a thing, but that’s Hootie.

Preet Bharara:

That’s a less interesting story than I expected.

Elie Honig:

Oh, come on. It’s a surprise twist. It’s not what you thought.

Preet Bharara:

Let’s talk about a particular cooperative and I think you made an illusion to this, because you don’t know at the beginning of a case who’s going to flip to get you up the food chain to the highest level person, and we have Allen Weisselberg that you’ve talked about a lot, I’ve talked about a lot, who was an official in the Trump organization who recently went to trial as a witness against the Trump organization or some of the Trump organization entities. And the hope had been for the Manhattan DA that a guy like that would not want to go to prison along in years, and prison is not fun, and he’s a well-heeled guy. Can you explain to folks why it is a person like that might not flip other than he has no evidence of wrongdoing on the part of Donald Trump, which I’m assuming you’re discounting?

Elie Honig:

Sure. So first of all, the whole Allen Weisselberg situation is to use the technical term fakakta messed up. The way they handled this in the DA’s office is mind-boggling. Now, I agree absolutely with the effort to flip, Allen Weisselberg, he’s the exact right guy to target, but then they let him halfway cooperate where he testified against the corporation, but not any individuals. That makes no sense to me. In my view and in the standard view, cooperation has to be all or nothing. Now, to your question, why would a guy like Allen Weisselberg decline to cooperate? It’s really a question of loyalty and incentives.

And if I had to guess, you look at Allen Weisselberg, I think, you just made the case why he would or should cooperate. He’s getting up there in years, why go to prison? All that. But on the other side, first of all, there’s just a sense of basic loyalty. Some people find it really hard to turn on and testify against their friends, their colleagues, even if it’s in their own bottom line best interest. I mean, think about from your perspective, what if God forbid, you ever got in trouble and you could help yourself by turning against your three of your best friends or three of your four colleagues?

Preet Bharara:

Well, I would flip on you in a heartbeat, Elie.

Elie Honig:

I’ve always accounted for that. That’s why I’m very careful when I say to you..

Preet Bharara:

And I would insist on going by Hootie.

Elie Honig:

So there’s that. But there’s also, who knows what financial pressures are brought to bear on Weisselberg, right? He’s been funded his whole life by the Trump org. Maybe he felt like he’d be cut off and he couldn’t afford it on his own. So it’s a complicated sort of calculus here. In my experience, I’ve only ever gotten to talk to the ones who did flip, so I can tell you why they do flip. Although I have tried unsuccessfully to flip various guys. And honestly, a lot of times it comes down to that. And there’s also the fear factor. Look, I mean, it doesn’t really apply to Allen Weisselberg, but the guys I used to deal with, if they flipped and things went wrong, they were worried they could get killed.

Preet Bharara:

We’ll be right back with more of my conversation with Elie Honig after this.

I want to talk about some other factors as well before we get to what I think is the main factor.

Elie Honig:

Sure.

Preet Bharara:

Do you think it matters that powerful and rich people can afford better lawyers? Does the better lawyering matter as much as people think or not?

Elie Honig:

I think no. Look, there’s a rough correlation, a very rough correlation. But you and I have seen many cases where very rich people have spent millions and millions of dollars on top shelf attorneys ultimately to no avail. I talk in the book about the Raj Rajaratnam case, and he spent, what is it, I think it was $40 million reportedly on his defense. And as you know, your team at the SDNY won that case convincingly. I have had similar examples. All that said though, I do not think there’s necessarily a straight line correlation or even a strong correlation between the cost of lawyers and the ultimate outcome or the quality of lawyering. And I say in the book, I go out of my way to defend public defenders, especially the federal defenders. I think they’re outstanding, they’re a little overburdened at times, but all things being equal, if you had a choice of having unlimited resources to pay for whoever you wanted or you were limited, you’re going to choose the more resources.

And here’s a maybe more subtle way that having money to pay for a lawyer impacts things. It often happened that we would know as prosecutors, this person can’t really afford to go to trial because the way it works, and I talk about this in the book, is a lot of times private lawyers, when they’re quoting a fee, it’s not that much different than when you go to a garage. They’ll say, “Okay, it’s going to cost this much to fix the transmission. It’s going to fix this, cost it.” So lawyers will often say, “It’s going to cost this much to retain me, and then it’s going to cost usually double that if you want to go to trial.” In fact, frankly, sometimes defense lawyers will tell you straight up just chatting in the hall, “Oh yeah, I’m just retained through trial. He hasn’t paid me through trial yet.”

So think about that at the negotiation table. Now, the defense lawyers pounding the table, “We’ll sue you at trial.” Sometimes that’ll happen. And I’d be sitting there going, “I know he can’t afford trial.” So that’s going to really sort of be a drawback at the leverage at the bargaining table. And I’ll tell you one other thing. I do think that sometimes big name lawyers can intimidate prosecutors. Now, we weren’t really intimidatable, I think that’s fair to say.

Preet Bharara:

You were never intimidated by any big name lawyer.

Elie Honig:

Not at all. I was driven crazy by some. I mean, I tell a story about a case I did against a big firm in New York City that just tortured us, but we won that case in the end. But I think if you look really closely, my theory about why did Jeffrey Epstein get off so easy, the first case in Florida years ago with Alexander Acosta, who went on to become Trump’s labor secretary and then resigned in disgrace because of this, but why people were saying, “Well, Acosta was on the take.” I never thought that was the case. I always believed, and we ended up, I think, proving this, there’s substantial support for this. He just wimped out. He was just too intimidated by Ken Starr and Alan Dershowitz and his predecessor is US attorney in Miami.

We have the line assistant from his own team saying, “I think he was just overwhelmed by those lawyers.” We have a lawyer for the victim saying, “I think he just gave those lawyers whatever they want. He didn’t have the stomach to fight them.” So, yes, it’s an advantage, but no, it’s not a categorical advantage to be able to pay for whoever you want.

Preet Bharara:

You write also, and I don’t know that I have real evidence or proof of this, but it’s an understandable point. Do you think the jurors really are more reluctant to convict people who are prominent or does it depend on the kind of person and the reason for their prominence?

Elie Honig:

I think it’s the latter. I think it depends on the person and the reason for the prominence. I mean, the most straightforward case is the kind I dealt with where people were afraid if we convict this mom guy, it could have someone knocking on my door. And I tell a story of how we very nearly lost a jury in the middle of a murder case for exactly that reason. That’s the most straightforward. But I think when you’re talking about a prominent person, I actually think this can cut both ways. I think depending on who the person is, let’s say it’s Harvey Weinstein, for example. I’m engaging in conjecture here, but I would think a juror would be afraid to return a not guilty verdict on a really universally reviled public figure like Harvey Weinstein, because they don’t want to be the guy who set Harvey Weinstein free, even if in their objective judgment, the proof didn’t quite meet the beyond a reasonable doubt standard.

But let’s think about Donald Trump here. How might that play if Donald Trump is to be charged, which could well happen as they say in the book. I mean, we’re looking at a trial if that happens into some time in 2024, I think everyone’s very focused on indictment. I’m thinking, of course, as a prosecutor’s trained to, how’s this going to come out? Will it be difficult for a juror sitting, whether it’s in Georgia or Washington DC in early mid-2024? Will they fear the consequences of coming back with a guilty verdict on Donald Trump? Will they fear unrest? Will they fear retribution? Will they fear just widespread condemnation from that 30% of the people who loves Donald Trump? I think that’s going to complicate any potential trial of him significantly.

Preet Bharara:

Here’s something that you’ve alluded to that I think is a significant factor in certain kinds of cases, perhaps in the Harvey Weinstein case and certainly in the Jeffrey Epstein case, if the crime involves harm to vulnerable witnesses, vulnerable victims who otherwise may have credibility problems, that can upset the dynamic and the calculation too, right?

Elie Honig:

Yeah. I tell some stories in the book. I did some research on this. If you look at one thing that a lot of powerful people do, especially when we’re talking about your serial sexual assault type cases, your Epstein, your Cosby’s, the people who they target just inherently are women in those cases, and almost entirely younger women and often minority women. And there’s some interesting data that I put in the book that shows that those types of vulnerable victims are just sort of systemically believed less often by cops and by prosecutors. If you look at the rates of reporting on those cases, if you look at how often those cases make it from cop to prosecutor, because often cops have to make the first cut there and decide, “Do I find this credible?” And then once they get to prosecutors, how often do they result in charges?

And I think the data there supports what I’ve experienced, which is that there’s some real uphill climbs there. And one case that really jumped out at me is if you look at the Bill Cosby case, so the cops in that case who happened to be from the Philly area where Bill Cosby, I’m from that area too, and I’ve talked about Bill Cosby was as much of a celebrity as he is in the world, he was a deity in that area, he was a temple grad. I remember going to Temple basketball games at the pedestrian, seeing him walk around. I mean, it was like, this holy figure, this is in the ’80s walking around. So when the cops investigated that, they did the first interview with a young female complainant on the phone, which is a ridiculously horrible idea because these victims have been traumatized, they’re scared. And if you want to build trust with them, it’s hard enough in-person, but to interview someone for the first time by phone is ridiculous.

Now, shortly after that, it comes time for them to interview Bill Cosby. And what do they do? They drive into Manhattan to meet with Cosby in his office. And I quote the detective when he comes out of it, he’s gushing. He actually says this, “Well, he was wearing his typical Cosby sweater, and I saw nothing in what he said to us to raise any question whatsoever.” I mean, the bias and the sort of inequitable treatment that these same cops gave, the young female victim and the very powerful celebrity, Bill Cosby is striking.

Preet Bharara:

Well, it’s funny. That’s a whole other side issue. We talked about the intimidation factor, but there’s also the wow factor, and there’s also the tendency for people, including those in law enforcement, and I write about this in my own book, to not believe that people of a certain stature or reputation or credentialed background to not believe that they’re capable of committing blatant fraud or violent crime. You may remember this gentleman, Hassan Nemazee, who’s a very significant figure in fundraising circles in the United States, basically defrauded multiple sophisticated banks out of hundreds of millions of dollars. It just didn’t occur to anybody, and it was all a house of cards.

Elie Honig:

Well, look at Bernie Madoff, look at his victims. He had very sophisticated victims.

Preet Bharara:

Last issue before we get to the ultimate issue, and I think you talk about this as well, and I’ve mentioned this with respect to Donald Trump, who we’ll also talk about. Sometimes if you’ve chosen your circle in such a way that everyone is unclean and has a bad reputation, it doesn’t even work to flip them because they have baggage. And I’ve often said about Donald Trump who was hung out with the likes of Roger Stone and Paul Manafort and others, when it comes time to indicting his associates, Donald Trump, who has made a career of hanging out with people of questionable ethics, can simply turn around and say, “You can’t believe that person. That person is of questionable ethics.” And this comes into sharp relief. And you talk about this a good deal when we talk about Michael Cohen, his former lawyer. How does that play out?

Elie Honig:

So this is one of the inherent advantages of being a boss, especially a savvy boss. You surround yourself with other people willing to do your bidding, other criminals, and then if they turn on you, they’re easy pickings. And you remember the refrain we would always use with trials when we would present a case based on the testimony of a horrible person. And God knows I have base cases on the testimony of multiple murderers. What do we always say, “Folks, we would love to put on our star witnesses as nurses and school teachers.” But you know what? Nurses and school teachers cannot take you inside, fill in the blank of crooked or dangerous criminal organization here, only a real criminal can do that. And then that gets into the whole sort of battle over cooperators and how we try to corroborate them. And I tell stories of how important it is to go out and find backing. Now, as to Michael Cohen, and I’ll say, he’s a friend of mine, he’s become a friend of mine. I like him. But we have to be clear on what-

Preet Bharara:

Friend of mine, not a friend of ours.

Elie Honig:

Right. I don’t mean that in the mob sense. I mean, he is my friend,.

Preet Bharara:

We need to distinguish that.

Elie Honig:

Yes, exactly. Right. There is this, I think, misperception out there that Michael Cohen is going to be the star witness, or will be the star witness or the next John Dean or whatever. And people keep saying, “Well, just call Michael Cohen, and that’s it.” Here’s the problem. The Southern District of New York, our former office rejected him starkly. If you look at-

Preet Bharara:

Well, he’s a convicted liar.

Elie Honig:

Well, yes, he’s a convicted liar, you and I have made cases off of convicted felons, not so much liars.

Preet Bharara:

Convicted liars, and you make this point, we talk about this in my class when you come every year. And this might be difficult for people to perceive, better to have a murderer as a witness who doesn’t have a history of lying than someone who’s literally lied under oath before, because it invites really horrific cross-examination where the defense lawyer can say, “You lied in a proceeding just like this. You were under oath that other time, too. Why should we believe anything you have to say here?” That’s pretty devastating, isn’t it?

Elie Honig:

I totally agree. And Michael Cohen was reject. The Southern District said, “We don’t believe he’s been fully forthcoming.” Yes, I will say it again, I will put on a murderer all day, but a liar is a whole different story because it’s ultimately about credibility. We know how to establish and support the credibility of a murderer. And I tell stories of this in the book, you go out and you dig up whatever other forensics, the body, the bullets, the ballistics, other testimony, and there are ways to support a murderer. And I think there’s actually something quite compelling about a guy saying, “Yes, I shot this guy. I did it because I was ordered to by that defendant.” And by the way, I talk about how obsessed we are as prosecutors rightly with the notion of corroboration. There was a prosecutor who used to say at our former office, we called it oak tree corroboration. Do you remember that phrase?

Preet Bharara:

Yeah, I think so.

Elie Honig:

The saying was, I can’t remember exactly who it was, but he used to say, “If your cooperators tells you we did a murder and it was at the corner of Main Street and Vine Street, and there was an oak tree right there, send an agent out to photograph that oak tree.” Because even though the fact that there’s an oak tree there has nothing to do with the murder or the relevant issues, it still lends some support to the cooperators’ story, but a liar is a whole different story. And by the way, this brings to mind a story that I don’t tell in the book. I had one mob cooperator who had done all the hits and everything, but he was also a liar. He had put in some kind of personal disability lawsuit, and he got deposed, and he lied the whole time. He faked some injury about his back or his legs or something.

And on cross-examination, the defense lawyer had his whole transcript of that deposition, 100 pages, and the defense lawyer is going through it, “Here on page two, you said you had leg pain, that was a lie.” And the cooperator is like, “Yeah.” “And here on page seven, you said that you had back pain that was…” And at one point, the cooperator just goes, “Everything I said in there is a lie. Do we have to go page by page?” It wasn’t great, but the jury laughed because they understood. But look, I stand by that. I’ll take a murderer over a liar any day.

Preet Bharara:

There you have it, ladies and gentlemen.

Elie Honig:

As a witness. As a witness

Preet Bharara:

Straight from Elie Honig. So I think the most important problem to prosecuting somebody who’s powerful in the context of there being cohorts and associates and co-conspirators and an organization, I’m not talking about Bill Cosby who did his crimes alone, but when you have someone at the head of an organization is because they’re the head of the organization, whether you’re talking about Trump or some other mob boss or anyone else is they have plausible deniability because they are smart about not having their fingerprints on the bad conduct. They don’t send emails about it, they don’t send letters about it. If there’s no wiretap, they’re not on tape about it. If they’ve intimidated or charmed their associates, there’s no one to flip about it. Isn’t that the key problem in prosecuting a powerful person in that context?

Elie Honig:

Yes, it is. And I say in the book, “Nothing protects power like power itself. There’s so many advantages to being at the top.” First of all, we have to get lucky. We have to flip several layers of people to get up to a boss. Sometimes you get lucky and you flip an immediate consigliere, meaning in the literal sense or even the other context, but sometimes you can flip someone near the top right away, but often you have to build up and up the chain. I tell a story about a narcotics’ case I did where we recovered 200 kilos of COC and we flipped a couple guys, but then the trail stopped and we knew we had gotten nowhere near the actual people who owned those kilos, but we only got so far up the ladder. The other advantages, you can protect yourself. There’s a great scene in Goodfellas where Paulie is sitting there at the barbecue and one of his guys comes up to him, whisper something in his ear and he just nods. And the voiceover from Ray Liotta, he goes…

Henry Hill:

For a guy who moved all day long, Paulie didn’t talk to six people.

Elie Honig:

And that’s entirely consistent with my own experience, both with mob cases and others. The smartest bosses limit who they talk to, they don’t put things in writing, as you said, they are careful how they say it. I mean, look at Michael Cohen, when Michael Cohen lied to Congress about Trump’s efforts to develop property in Moscow, he pled guilty to that. But he was asked, “Did Trump tell you to lie?” And Michael Cohen, honestly, I give him credit for this, said, “No, I can’t say that he did. He made quite clear to me over our entire course of dealing what the expectation was. But he didn’t say, Hey Michael, I need you to go in there and commit perjury in front of Congress.” And that also applies to the story that I opened the book with about the powerful mobster who authorized the hit of his nephew. The evidence we had on him was thin, very thin, it was very hard to flip people up the chain.

The evidence we did have was that he gave this sort of oblique instruction. He said, “Do what you got to do.” I mean, that’s not the same thing as saying kill him or even take him out. And so, that was an extraordinarily difficult case to make. And I guess I won’t give away the ending, but perhaps an unsatisfactory result. So yeah, I mean, one of the great benefits about being the boss is you make the most money and you have the most power, but you’re also the hardest to prosecute.

Preet Bharara:

Yeah. And you say a lot of this in the book. So now I want to flip to contemporary times and speak more explicitly about Donald Trump. We’ve talked about all these factors in these advantages that a powerful person has, whether you like it or not, which of these is at play most with Trump? Is it what we’ve just been talking about, the separation from cohorts and plausible deniability or something else?

Elie Honig:

I’m going to name a sort of tie here. One is, yes, his placement at the top of the hierarchy, the fact that he has been so elusive. Look, as you said, the guy doesn’t text or email, lucky for him. I think he’s even joked about this, something like, “Can you imagine if I did?” I mean, does tweet though fair or truth or whatever, which is pretty similar. I mean, he’s given prosecutors some pretty good evidence there. The people around him have been rogues and worse and many of which he has the extra benefit. He was able to essentially pay off, so to speak, by floating and then delivering pardons to keep people silent, and I have a bit in the book about that. And so I think he’s proven very elusive. We talked about Allen Weisselberg before, Allen Weisselberg wouldn’t flip.

And so a couple guys have kind of flipped. Remember Manafort briefly flipped, Michael Flynn flipped, and then he un-flipped, but nobody has ever flipped who had a clean enough shot at Trump who was credible enough from the start to really take him down. The other factor I think is, and this goes back to prosecutorial hesitancy, I think that for all the people who flexed on Donald Trump, for all the people who promised to take him down, who subpoenaed him, who filed civil lawsuits, nobody has yet pulled the trigger on an indictment. Now, I say in the book I do expect that the Georgia, the Fulton County DA, all indicators are that that district attorney is going to indict Donald Trump, but I think she’s going to have an awful hard time turning that indictment into a conviction. I have a chapter in the book explaining what those difficulties will be.

Preet Bharara:

So when it comes to someone like Donald Trump, even though he is out of office, he’s a declared candidate for 2024, if you’re in the prosecutor’s office and one of the people making the decision, and you have enough evidence, you think you can bring a criminal case and you think you have the possibility of conviction, but it is not a slam dunk and your assessment is, it’s a close question. You think you have enough, but it’s close and you could well lose. Do you bring that case or not?

Elie Honig:

So that’s a great question. In the non-Trump context, the answer is absolutely yes. I mean, I did that quite a bit in the Southern District, and that was sort of my style. But it would be naive for me to say the exact same calculation goes into Donald Trump, not because he deserves any special treatment, but because he’s a former president with an enormous political following. And if you indict Donald Trump and don’t convict him, that’s with you and your office forever, it will cause political dissension. Again, not a reason not to do it, but something that I think requires an extra quantum and extra quality of proof. I think we have to be realistic. As much as we all say, “No man is above law and everyone should be considered exactly equally,” I think it would be fool hearty to not consider all the extra factors that go into Donald Trump. That does not mean I think he should not be charged, I make the case in the book that he should be, but I think you have to be extra careful and extra sure.

Preet Bharara:

Yeah. I would draw a further distinction also, we’ve been talking about people who are powerful or who are celebrities, as if they’re interchangeable and fungible. And I always do a distinction in my head between someone who just happens to be famous because they’re an entertainer or something else like Bill Cosby or someone who is powerful because they have been voted into office by the electorate. So I drew a distinction in my head between someone like Bill Cosby versus Sheldon Silver who was the speaker of the New York State Assembly and Dean Skelos, who was the majority leader of the state senate. Because I think you have to take the responsibility even more seriously if that’s possible when you bring a criminal case against someone who was put into office by the people, because you’re going to be affecting democracy. Although Trump is out of office, you could make the argument that you would also still be affecting democratic outcomes if you rush to indict him and you’re not certain you have enough. Is that fair?

Elie Honig:

Yeah. I’m going to add that one to the file of points I wish I had made in the book, but I have only heard now. I think that’s a really good point. I do think there’s a difference between people who are powerful because they’ve been given democratic power in our system. Preet, to that point, I’m glad you mentioned Sheldon Silver, because I know you’re aware, but I don’t know that the general public who doesn’t live this stuff is aware of the extent to which the law around charging public officials has changed and been known.

Preet Bharara:

Don’t get me started.

Elie Honig:

I know, because Sheldon Silver had to be charged. So had to be tried twice, both times we convicted him, not me, but the team at the Southern District of New York convicted him. But there was a very big case, the Governor McDonnell case out of Virginia that came down a few years ago that basically narrowed the scope of public corruption laws. McDonnell had taken all this money from this guy who had a nutritional supplement company and done all these favors for him. In that case, he was convicted, Governor McDonnell by a trial. His conviction was upheld three to zero by the Court of Appeals, but then reversed by the US Supreme Court nine to zero, or it was eight to zero at the time because we were one justice short at the time, eight to zero unanimously. And the Supreme Court said, “Well, his conduct was tawdry and distasteful.” That’s the quote, “But not illegal because he didn’t do anything official like cast a vote on something or veto legislation.”

And as the fallout from that, that gutted federal corruption cases across the country, including Sheldon Silver, which we had to then go back and retry, and the evidence was strong enough that the SDNY still convicted him, but there were other cases that were gutted that people walked out of prison. And I will say there was another major subsequent Supreme Court decision, the Bridgegate decision here in Jersey, throwing out convictions also nine zero. And for all the folks, and I’m big on this, that believe the Supreme Court has been hopelessly politicized and split apart. Hey, if you want an example of all nine justices singing together in a beautiful chorus on the same page. If you want an example of Justice Sotomayor singing from the same sheet as Justice Alito, look no further than the gutting of corruption laws.

Preet Bharara:

Hospitality to corruption. Well, we don’t have to go on a detour and frolic on this, but it’s a little bit of naiveté, I think, about how politicians corrupt the system. And I think they don’t have enough respect or faith in juries for being able to distinguish between something that’s innocent conduct versus deeply corrupt conduct, as was the case with McDonnell in Virginia. So we should just mention as we’re ticking off the factors that sometimes it’s not the evidence, sometimes it’s not the intimidation factor or charm or money or any of those things, but it’s the law. Donald Trump can lie anywhere he wants, so long as he’s not under oath, there’s no crime there. When we get to talking about what seditious conspiracy requires, the legal factors become very, very important. So I want to talk about two current events looking forward because I have the benefit and value of having you here.

So we’re recording this on Monday, January 30th. So I don’t know what will happen between now and when people listen to this. We had a classified documents issue with Trump, we had a classified documents issue very different, but in the minds of many people, very similar with Joe Biden, and then we have a classified documents issue with Mike Pence. And you wrote something very interesting for CAFE in the last number of weeks where you drew an analogy to football with respect to offsetting penalties. And by the way, I assume you’re an Eagles fan, so congratulations on that.

Elie Honig:

Correct, thank you. And I am quite confident heading into the Super Bowl. And if any Eagle fans here, this will be furious at me for jinxing us. Yeah. So here’s what I wrote for CAFE, and I think continues to be borne out with the inclusion of Mike Pence now. We can all understand how on paper, on paper, if we were to make a checklist of all the relevant factors in Trump won column, Biden won column, Pence won column, the differences between the cases, and I think based on what we know, it’s quite clear that Trump’s case is substantially worse than Biden’s and Pence’s, and perhaps even worse in a way that makes one of them criminal and one of them not criminal.

Preet Bharara:

You mean the case, you mean the conduct?

Elie Honig:

The conduct. Yes, exactly. Right. Exactly. The number of documents, the obstruction versus cooperation and so on. And so, I think anyone can readily understand the differences on paper in the conduct. Now, as they say in football, they don’t play the game on paper, they play the game in the real world. And I’m trying to put myself in the mindset of Merrick Garland now. So let’s say that the recommendations come back from the respective special counsels, the Trump team says, “Yes, this is a crime, and we ought to indict him.” The Biden team under Mr. Hur comes back and says, “No, not quite a crime.” And let’s say whatever investigation on Pence comes back, “No, not a crime.” Think about how difficult it’s going to be for Merrick Garland. And if there’s one thing we know about Merrick Garland, it’s that he is allergic to anything that looks political, I argue in the book, overly allergic to the point where he’s not even willing to do anything that’s necessary if it may look political.

Now you’re telling me Merrick Garland is going to say, “Yes, we are going to indict and seek to imprison.” That’s what an indictment is. Indict and seek to imprison Donald Trump, who is running against my boss, Joe Biden, well, maybe not boss, but the guy who appointed me, Joe Biden for 2024. I’m also going to give Joe Biden a pass and I’m going to give Mike Pence who is broken from Trump, and likely to challenge Trump a pass as well. Now again, we can go through and say yes because of factors A, B, and C, but you know how that’s going to play to 92% of the American populace, “Hey, they all had documents, this guy they’re trying to send to jail, and those two guys, they’re given a pass.” And I know everyone says Merrick Garland is above politics. I don’t buy that, Preet.

Look, I give Merrick Garland a lot of credit. I think he’s done an excellent job of restoring DOJs foundational principles, integrity and independence. But let’s not make it like this guy is some kind of monk who doesn’t understand politics. You don’t become a federal appellate judge, you don’t get nominated for the Supreme Court, you don’t get confirmed as attorney general. If you’re unfrozen caveman lawyer, I don’t understand your politics. He understands politics. He’s very careful with what he does.

Preet Bharara:

You’re a caveman lawyer voice?

Elie Honig:

That was my Phil Hartman doing unfrozen caveman lawyer voice. I need to work out.

Preet Bharara:

Needs a little work. Needs a little work.

Elie Honig:

That was a great sketch. Kids look it up.

Preet Bharara:

It’s around the time of Hootie and the blowfish.

Elie Honig:

Little before, yep.

Preet Bharara:

Do you think there will be a special counsel appointed to look at the Mike Pence documents? What is the difference between the Biden situation and the Pence situation?

Elie Honig:

So I think the answer is no for two reasons. One, I think at a certain point, Garland just has to staunch the bleeding here. If the rule becomes every one of these gets a special counsel, we can end up with six, seven. I mean, seriously, I’m not being hyperbolic here. Special counsel-

Preet Bharara:

Well, Elie, you ready to serve?

Elie Honig:

I know. Yeah. I would be the last guy they would come to for this. So that’s number one. The other thing with Pence is the reason you appoint a special counsel, people think there’s this punitive aspect to it, “Ooh, I’m going to nail it. It sounds scary, special counsel.” If you look at the regulations, which I know we both have, the reasons to appoint a special counsel are extraordinary circumstances/apparent conflict of interest or appearance of conflict of interest. And I guess if I was Merrick Garland and I wanted to put an end to all the special counsels, I would say barring any further developments, I would say, okay, Trump we know is running for president against Joe Biden. In all likelihood, Joe Biden is president. I think there’s fairly clear, at least a potential conflicts there. Mike Pence hasn’t declared. I don’t know what happens if he does, then do you have to appoint a special counsel? But I don’t think Garland will appoint a special counsel on Mike Pence barring further developments.

Preet Bharara:

But that’s not very principle, it’s just like enough is enough.

Elie Honig:

No, I agree. I agree.

Preet Bharara:

What if documents are found in George W. Bush’s residents and Obama’s residents, God forbid, Jimmy Carter’s residence from ancient times. I’m just not sure how you deal with that. Let me ask you about January 6th.

Elie Honig:

Sure.

Preet Bharara:

I don’t know if you caught it. We had Tim Heaphy, chief investigative counsel of the January 6th select committee on the podcast a couple of weeks ago, and he confirmed his view, which aligned with things that you have said and others have said, and that is that the Justice Department was inexplicably slow to investigate and reach out to all sorts of witnesses in connection with January 6th. Did you have any reaction to that?

Elie Honig:

I listened to that episode and I found that part fascinating and vindicating really to hear directly from Tim Heaphy who would know better than anyone else, and that strikes me as exactly right. The last chapter in this book is called Waiting for Garland, it’s a play on Waiting for Kato or Waiting for Guffman. And look, one of my biggest criticisms of Merrick Garland has been that he is moving so slow, and look, is that because I’m an impatient person and was a very impatient, fast moving prosecutor? I guess, partially. But it’s more than that because Merrick Garland has hurt himself tactically by taking this long. It is mind boggling to me. It is inexcusable that Merrick Garland’s team was sitting there six months ago when Cassidy Hutchinson testified a year and a half after January 6th, and they were a quote astonished according to the New York Times by what they found.

They had no idea. And Tim Heaphy, I think, confirmed that. The fact that the January 6th committee, which has far less powerful investigative tools, their subpoenas are the weak cousin of real grand jury subpoenas. Yet, here they are, and credit to the January 6th committee, way out ahead of DOJ. That is inexcusable. And it’s not just because I’m this inpatient guy and I know everyone goes, “Oh, Garland’s, he’s a slow moving assassin.” No, he has harmed his case by taking this long. He didn’t get to these witnesses first. Cassidy Hutchinson’s a perfect example. I wrote a piece for us, for CAFE about the cost of this because now Cassidy Hutchinson has testified, but you know what? She lied. She lied to the committee her first time under that lawyer we talked about.

I can understand why, but if she ever testifies from Merrick Garland now, or Fani Willis, the cross-examination on her is going to be devastating because she lied to Congress. She’s admitted that she lied to Congress. I think she’s credible personally, but that’s going to be devastating. And that’s Merrick Garland’s fault and Fani Willis’ fault. Because if they had gotten to her first, they could have prevented that from happening. How many times, Preet, did you and I and other leaders of the SDNY if someone was poking around one of our witnesses, often the Eastern District, our friends across the river or state prosecutors or the SCI, the local investigators, what will we do? We would say, “Absolutely not. They’re our witness, we’re locking them in a box. We need them for our criminal case. We’re going to use them first. Then you can have them.” And Merrick Garland has failed on that, and he’s moving too slowly and there’s going to be a real cost if he ever does bring an indictment.

Preet Bharara:

Can we go back to the classified documents for a second?

Elie Honig:

Sure.

Preet Bharara:

Because I’ve just been thinking about it and you and I spend like 40 minutes going through all the factors in favor the powerful. And some of them are understandable, and some of them are maybe unfortunate, like the intimidation factor, deniability, the nature and credibility of the victims, etc., etc. But the classified document situation, if Trump is chargeable but is not charged because of the offsetting penalty idea because Biden innocently had documents and Pence innocently had documents, what category does that fall into? It’s something completely different and apart from all the other things we talked about and many of the things you talked about in your book, and shouldn’t one think to themselves, “Well, that’s a miscarriage,” or is it not a miscarriage?

Elie Honig:

It clearly would be a miscarriage for what are notions of individualized justice army. That’s-

Preet Bharara:

To be clear, a miscarriage for him not to be charged.

Elie Honig:

Right. No, I agree. I mean, look, this is what-

Preet Bharara:

But still legitimate. I’m trying to get your view given that you spent a lot of time writing a book about this subject, is that something that you understand and accept, or is that something that you rail against and it sounds like you accept it?

Elie Honig:

I do accept it as reality. I would like to see that reality slowly evolve. I’m not under no illusion that because I say so the reality is going to change. But I guess if I can sort of thread the needle here, I acknowledge it absolutely as a reality here, but in an ideal world that I would like to push the world towards ever so slightly, that would not be the case, that a prosecutor takes into account the political reality and the appearance of it. I would like to see in this platonic ideal of what a prosecutor would do, you would say, “I get it. I get that people are going to howl about this. However, the cases are different, one’s criminal, one’s not, and I’m charging it and I’m going to plow ahead with this.” I don’t think Merrick Garland’s likely to do that, however.

Preet Bharara:

On January 6th on those issues, is it legitimate and appropriate for prosecutors to consider what it looks like for one administration’s Department of Justice to prosecute the head of the prior administration, even if the facts support a prosecution? I mean, I’m not saying it’s dispositive, is it appropriate to take that into account?

Elie Honig:

I do think it’s appropriate. Again, the bar is absolutely going to be higher for anyone looking to prosecute Donald Trump. And I think it’s-

Preet Bharara:

And appropriately so?

Elie Honig:

Yeah.

Preet Bharara:

Because you’re talking about when it’s appropriate, when it’s not. In this case, appropriately so?

Elie Honig:

Yeah, I think it’s sometimes hard to think about in a clear-eyed sense because it’s Donald Trump and because he evokes such strong feelings either way. Again, I’m certainly not saying Donald Trump should not be prosecuted, but I’m saying you do have to think about that a bit. And I do want to say one thing that I found really interesting that I dug into in the book. I do say one of, I think, our natural hesitations here, and maybe prosecutors natural hesitations, is the notion that it just doesn’t feel American to cuff the former present. We’ve never done it. And it’s the kind of thing we see happening in other countries that we like to think we’re more developed democracy. But if you dig into this, and I have a bit in the book about this, there’s a surprising to me, number of developed democracies who have charged and convicted. In some cases, they’re former presidents or prime ministers. We’ve seen-

Preet Bharara:

And then reelected them.

Elie Honig:

Right. Sometimes reelected them. Right, exactly. I give examples in the book, Italy, Israel, South Korea, South Africa, there’s several others and none of them have devolved into chaos. So it’s going to take a little bit of a gutsy leap of faith. And I do think it’s legitimate to think about, “Hey, this is the leader of the other party,” but I also think that that should not be a free pass. And by the way, I do want to say the closer we get to 2024 and now with Donald Trump as a declared candidate, I think that calculation gets even more difficult. Again, another cause for criticism, I don’t see any reason Merrick Garland couldn’t have charged this case in late 2021 and made it much less politically fraught for himself.

Preet Bharara:

Before I let you go, Elie, I don’t want any spoilers, but another season of Up Against the Mob brought to you by CAFE and the Vox Media Podcast Network is on deck. Is it not?

Elie Honig:

This is going to be, as the kids say, “Off the hook.” That’s probably dating myself a bit. But I am so thrilled. I cannot wait for people to hear this. So Season 1 we did, I interviewed a cooperative, an FBI agent who went undercover, a defense lawyer, and I thought it was a fascinating look at the mob from all different angles. What we’re doing in this season is we are telling the story in seven episodes of the single, craziest, most unpredictable case I ever did. It is all 100% true. And you will hear about this, no spoilers here, but because some of this will just blow you away, but you will hear about this case from the prosecutors, from the defense lawyers, from the FBI agents, from the Massachusetts State Police, from the journalists who covered it, from a cooperator or two, from a victim or two. And there’s some surprise guests as well.

And this thing, forget about Goodfellas, forget about the Sopranos. This has way more twists and turns, way more crazy unforeseen developments. It’s pretty bloody, but it’s fascinating, and I think there’s also some interesting insight here into how prosecutors make these cases, how defense lawyers defend them. So I cannot wait for people to hear that. That is coming at the end of February.

Preet Bharara:

Great. Elie Honig, my friend, congratulations on the book, Untouchable: How Powerful People Get Away with It. Thank you so much.

Elie Honig:

Preet, it’s been great. Thank you so much for having me.

Preet Bharara:

My conversation with Elie Honig continues for members of the CAFE Insider Community. To try out the membership for just $1 for a month, head to cafe.com/insider. Again, that’s cafe.com/insider. And to receive a weekly newsletter featuring analysis from Elie, sign up for the CAFE Brief. You can do that at cafe.com/brief.

THE BUTTON:

I want to end the show this week by sharing a fun story about American sports and the diehard fans who will do anything for the team they love. So on Sunday, when the Philadelphia Eagles won the NFC Championship, New York’s Empire State Building, perhaps the world’s most famous building was illuminated in green and white lights, Eagles colors. Now you might ask, what could possibly be the issue with that? The Empire State Building, of course, is located in the heart of Manhattan and one of New York’s professional football teams, the Giants are bitter division rivals with the Eagles. In fact, the Eagles had just eliminated the Giants from the playoffs a week earlier. So as you can imagine, many New Yorkers did not find the light show amusing. Twitter was a flutter. Carl Banks, the legendary former Giants’ linebacker tweeted, “What the actual F? Philadelphia would never light a building for a New York sports team. NYC Mayor, did someone lose a bet?”

New York’s city and state officials were quick to point out that this fluorescent fOPA was not their doing. In fact, governor Kathy Hochul tweeted, “To be clear, New York State has no control over how Empire State Building lights its colors.” But of all the responses to the controversy, this one from New York City Sanitation Department is my favorite. The department wrote on Twitter, “For anyone who finds this as treacherous, traitorous, and unforgivable as we do, just pretend it’s green and white for New York’s strongest. We take out the trash every day and next year, that’ll include the Eagles.” Now, to be fair, the folks at the Empire State Building had long planned to illuminate their tower in support of whatever team advanced to the Super Bowl. And late Sunday night, they changed their colors to red and white to honor the AFC Champion Kansas City Chiefs.

And when they did so, the building’s Twitter account referenced the backlash to the green and white light saying, “That hurt us more than it hurt you.” Whether you accept that apology or not, depends a little bit on where your allegiances lie. I should say there is at least one member of the Bharara family who was super happy to see the green and white, my brother Vinny, a diehard Eagles fan who was actually at the game. Either way, for those Americans who are tired of fighting over politics, sometimes there can be a fun distraction to fight over something else, sports. The big question now is, what if anything, will the Empire State Building do with the announcement by Tom Brady that he’s retiring this time, supposedly for good?

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Elie Honig.

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 @preetbharara 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 letters@cafe.com. Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The senior producers are Adam Waller and Matthew Billy. The CAFE team is David Kurlander, Sam Oserstaden, Noah Azali, Nat Wiener, Jake Kaplan, Sean Walsh, Namatasha and Claudia Hernandez. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay tuned.