Preet Bharara:

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

Elie Honig:

And then you pile on top of that, the use by Bill Barr, the weaponization by Bill Barr of the Justice Department for political purposes. And I want people to know what happened, hopefully so that we can understand it and so that no AG of any party will ever go down that road again.

Preet Bharara:

That’s Elie Honig, he’s a former state and federal prosecutor and my colleague here at CAFE and at CNN. Elie served as co-chief of the organized crime unit at SDNY when I was a U.S. attorney. There, he developed a reputation as a tough, smart prosecutor, who skillfully tried cases and flipped mobsters into cooperating witnesses. He’s out with a new book called Hatchet Man: How Bill Barr Broke the Prosecutor’s Code and Corrupted the Justice Department. Elie joins me today to discuss Barr’s conduct as attorney general under Donald Trump, the budding tenure of current AG, Merrick Garland, and the recent indictment from the Manhattan district attorney of Trump organization entities and CFO, Allen Weisselberg. That’s coming up, stay tuned.

Preet Bharara:

Now let’s get to your questions. This question comes in an email from Rebecca, who asks, “What does it mean that Matt Gaetz’s associate, Joel Greenberg, has asked the judge to delay his sentencing for 90 days? Does that mean he’s giving prosecutors really good stuff on Gaetz?” That’s a great question and a great instinct. To refresh everyone’s recollection, Matt Gaetz is a sitting member of Congress, who is being investigated by the Justice Department for various things, including perhaps sexual misconduct with a minor, maybe some other things as well. One of his close associates with whom he did a lot of business and other things is Joel Greenberg, who just some weeks ago, pled guilty to a series of serious crimes, and faces a minimum mandatory penalty of 12 years.

Preet Bharara:

Now, one way for him to get out from under the mandatory minimum of 12 years is to be signed up as a cooperator as we’ve discussed on the show before. So, I don’t know the precise practice and tradition in the Middle District of Florida, but it is very, very common within the Justice Department to delay sentencing of a cooperator until the cooperation is finished. 90 days may seem like a long time and people want to see what action the Department of Justice will take with respect to Matt Gaetz or other people, but 90 days is pretty short.

Preet Bharara:

In fact, in the SDNY, the typical procedure was, if you had a signed up cooperating witness, you wouldn’t have a sentencing for that person at the request of the government until they’ve completed their cooperation, which can be, not just the provision of documents and testimony behind closed doors to prosecutors, who can then mount their case against some other people further up in the food chain, but actually also see through the prosecution of other people that the cooperating assisted in prosecuting. And that would mean, for example, in Matt Gaetz’s case, at least the way they asked him why he would do it, if they end up bringing a prosecution against Matt Gaetz, and if Joel Greenberg ends up being an important witness, you’d want Joel Greenberg to testify at that trial. And that might not be for months and months.

Preet Bharara:

So, I would expect to see further delays in sentencing as well. And why is that? From the defendant’s perspective, when you go before the judge to be sentenced on the things you pled guilty to, you want to get the greatest benefit possible. And the greatest benefit is going to come to you if you show the fullness of your cooperation, including providing information, including pleading guilty, including showing remorse, but also including showing that you undertook at some risk and harm to yourself, you testified in a trial, and that testimony was found to be truthful and believed by the jury, and resulted in a successful prosecution by the Justice Department.

Preet Bharara:

And you want all of that to be available to the judge in the future when you’re being sentenced. And if you get sentenced before all of that is done, you don’t have a full picture of what the defendant did. So, clearly, it’s the case, prosecutors have not figured out yet what they’re going to do with the information, there is as yet no charge against Matt Gaetz. He must be providing things that are good. They’re probably trying to corroborate that information, but I think all in all, it’s a good sign, and it’s not atypical.

Preet Bharara:

This question comes in an email from Archie, who asks, “What do you think of the Pennsylvania Supreme Court’s ruling in the Cosby case, that he cannot be tried again. I understand the theoretical logic that the trial should be thrown out, but why forbid another trial?” Well, Archie, I think you make a reasonably good point. As Joyce and I discussed in the Insider Podcast, there’s a lot of debate and concern about the Pennsylvania Supreme Court decision from last week, sort of came out of the blue because I don’t think it was on a lot of people’s radar, that there was this lingering appellate issue with respect to the prosecution of Bill Cosby, to remind people, you got to go back a number of years, 16 years to 2005, when the relevant district attorney was a guy by the name of Bruce Castor, who more recently became somewhat famous, because he was one of Donald Trump’s impeachment lawyers in the second impeachment trial earlier this year.

Preet Bharara:

So, back in 2005, Bruce Castor makes a determination, which a lot of people quarrel with, and I see their point, that there was not enough proof, certainly not proof beyond a reasonable doubt in his mind, to be able to prosecute criminally Bill Cosby. So, he declined to prosecute, in part, for reasons that maybe we don’t like anymore, such as the length of time it took for the victim to come forward. Having made that decision not to prosecute, on the other hand, he also realized that the victim in the case was bringing a parallel civil proceeding to try to sue Bill Cosby and get some financial remuneration for the damage that he did. And with respect to that, Bill Cosby would have absolutely had a Fifth Amendment right against self-incrimination, and wouldn’t have had to provide any testimony in that civil case.

Preet Bharara:

So, Bruce Castor decides weirdly on his own and in a way that was not put in writing, no formal notation of it, he basically agrees not to prosecute Bill Cosby, thereby, in Bruce Castor’s mind, taking away Cosby’s ability to assert the Fifth, thus forcing Bill Cosby and his lawyers to agree to testify. And during that testimony in the civil case, he ended up saying some incriminating things, including admitting that he had procured and administered Quaaludes to women in order to have sex with them. So, some years later, along comes another district attorney, who decides, “I don’t think that agreement is binding,” and there’s good reason to think it wasn’t. It wasn’t written, there was no order from a judge, and various other features of it called it into question.

Preet Bharara:

Bill Cosby’s lawyers made the same argument and said, “You can’t go forward because of the earlier agreement with Bruce Castor,” the trial judge rejected that argument, and the trial proceeded. And among the pieces of evidence that were put in at the criminal trial that finally was underway were these admissions that Bill Cosby made in the earlier civil case, which admissions the Supreme Court found made it more likely for him to be convicted, and they were only procured because of this agreement or seeming agreement between Bruce Castor and Cosby’s lawyers. So, I think there are persuasive reasons to think that the decision is not the correct one, but it is not a crazy decision.

Preet Bharara:

The Supreme Court was very troubled by the fact that this particular defendant seems to have been compelled to testify in a way that incriminated him further. But you raise a great point. And in fact, the sentiment you express was agreed with by two of the members of the Pennsylvania Supreme Court, who said, “Be that as it may, we need to overturn this conviction, but the way to do it properly is to allow the prosecution, if it wants, if it thinks it’s sufficient, to retry Bill Cosby, but just don’t use this other information, don’t use this other testimony that you can call food of the poisonous tree, that arose from Bill Cosby having to testify in the civil trial, the business about the Quaaludes and everything else. And if you still have enough evidence to prosecute and convict Bill Cosby without that information, there’s no harm, there’s no foul, and due process is not offended.” That’s not the way the majority of the Supreme Court saw the case, but I tend to agree with you and those two Supreme Court justices.

Preet Bharara:

So, finally, folks, if you’re on Twitter, you may know that this past Saturday, I went to see Springsteen on Broadway. And I brought my 18-year-old son, who just graduated from high school, and I tweeted, “Guess who’s going to see Springsteen tonight? Taking my new high school graduate to Springsteen on Broadway, yet another reason to get vaxxed.” And then I saw the show. And then I posted another tweet, which was unusual for me, I posted, “My review, God bless Bruce effing Springsteen.” And it’s the first time, I believe, I’ve used that word on social media. I don’t use that word on podcasts. I will not reveal to you how often I use that word in my private life. But if I was ever going to use that word, it seemed appropriate given how incredible the show was for a lot of reasons.

Preet Bharara:

And it spawned some questions from folks, including one from Susan Devoe, who asks, “Did the graduate also find it cuss-worthy?” So, I can report the following, my son doesn’t curse around me, maybe he curses around his friends, but he turned to me and said, and he happens to be a Springsteen fan, not everyone of my offspring is a huge Springsteen fan like I am, but this particular child is, and he turned to me after the show and he said, “That might’ve been the best thing I’ve ever seen in my life.” Now, he’s only 18 years old, but he’s been to a lot of shows and he plays music himself, so, I consider that to be a very, very positive review.

Preet Bharara:

And just quickly to give you a sense of what it was like, now, I’ve seen the Springsteen show before, three years ago or so, before the pandemic. And I’ve been tweeting all along about the opening of things and going to ball games, and I went to see a movie with my kids not too long ago. And each one of these things, as we come out of the pandemic, to me, feels like a revelation. It’s something that you have missed, it’s something that feels more special. It’s something you didn’t realize how much you missed going to a show, going to a ball game, going to a movie, going to a party, eating inside at a restaurant, at least for me.

Preet Bharara:

And the weird thing about that show was, all the Broadway in New York is still closed. There’s no Broadway shows. They’re not opening till the middle of September. There’s only one, as far as I know, and it’s Springsteen on Broadway. And by the way, it’s not just important for him, and it’s not just important for people who get to enjoy an evening listening to him tell stories and sing, but it’s also employment for ushers, and ticket vendors, and other folks who work at the box office. And various people have reached out to say how wonderful it is that Bruce went early, because people are getting back to work. But part of the surreal aspect of all of this was, I take my son to a restaurant on 49th Street that we often go to before watching a show, and usually, it’s crowded, sometimes it’s hard to get a reservation, we were literally the only two human beings in the restaurant, because there was no other shows, it’s just Springsteen on Broadway.

Preet Bharara:

And then you go see the show, and if you haven’t seen it, and you can’t get to New York, you can watch the earlier version, the pre-pandemic version on Netflix. It’s amazing in every way. And it’s not a concert. In fact, Bruce gets mad, and he got mad last Saturday, people tried to sing along or clap along. He gets pretty annoyed by that and says, “This is a Broadway show, it’s not a concert. I got this, I got this, guys.” And although I had seen the show before more than once and watched it on television, there was something about Springsteen telling these stories after the 18 months or so that we’ve been through, that resonated even more. His sad story seemed a little sadder, his joyful stories and songs seemed a little more joyful.

Preet Bharara:

And I feel like he seemed a little older, and there was a melancholy to his stories about loss, whether he was talking about his mother, or his father, or Clarence Clemons, or some musical mentors of his who died in Vietnam, and who he still remembers. Because of what we’ve all been through, I think it hit home a little bit more than it did before the pandemic. So, short answer to your question, although my graduate did not cuss, I think he did find it cuss-worthy. And if you can get out to see shows and do some of the normal things that you were doing before the pandemic, I highly recommend it. And if you haven’t gotten vaxxed, please do that too, because you couldn’t see Springsteen on Broadway without proof of vaccination. So, reason number 5,628 to get vaccinated.

Preet Bharara:

And I’ll end with my comment that I’ve always made when someone asks me about Springsteen and why I like him, and I quote from Jon Stewart, who I think one time on his show when it was still on the air said the following, and I’m paraphrasing, he was like, “Do you like Joy? If you like joy, go watch Springsteen.” Stay tuned, there’s more coming up after this.

Preet Bharara:

(singing)

Preet Bharara:

My guest this week is Elie Honig. He was a prosecutor for 14 years, serving at both the federal and state levels. He tried cases involving violent crime, human trafficking, public corruption, and organized crime. Elie’s new book, Hatchet Man, makes the case for why Former Attorney General Bill Barr corrupted the Justice Department, sowing damage to both its credibility and independence. Elie Honig, my friend, welcome to the show.

Elie Honig:

Preet, thank you for having me. I have to say, I don’t want to start off corny, but I will.

Preet Bharara:

Oh, no.

Elie Honig:

It’s a thrill. It really is a thrill. You were, of course, my boss, and now are my, I don’t know if you’re my boss, but colleague and friend, and you’re somebody that I learned so much about, and I think a lot of that makes its way into the book that we’ll be discussing. And I did think a lot about you and our SDNY colleagues as I was writing this.

Preet Bharara:

Well, now I’m going to have to cut back on all the tough questions I was going to ask you.

Elie Honig:

That was my goal.

Preet Bharara:

That was good. Very disarming, sir. Congratulations on the book, Hatchet Man: How Bill Barr Broke the Prosecutor’s Code and Corrupted the Justice Department. And if I might say, obviously, I blurbed the book, I had an advanced copy of the book, I think it’s excellent. We’ll talk about some of the themes in the book, why you wrote the book, and some things that have happened since you put the book to bed. But I do want to mention on a personal note also, that I will forever associate you and your book with an important moment as we come out of the pandemic, and that is your book launch party, which was a few weeks ago, on June 17th, was literally the first public event that I attended indoors with people without masks in 15 months.

Preet Bharara:

And as I mentioned elsewhere, what a terrific event it was, I enjoyed meeting your family, and it was just jarring to be around people at the kind of event I used to go to all the time. So, thanks for that association.

Elie Honig:

Yeah, I think a lot of people felt that way that night, there was this sort of release, this feeling of joy that night. And I got to tell you, it was a surreal event for me because it’s like, you may have had this at your event, you look over there, there’s my mom, and she’s talking to Don Lemon, and there’s my dad, and he’s chatting with Scaramucci and George Conway. And then to top off the surrealness of it all-

Preet Bharara:

I was going to get to this. I know what you’re going to say. Go ahead.

Elie Honig:

So, Chris Rock made a sort of impromptu cameo because we used the space that our friends at the Comedy Cellar let us use their restaurant, and Chris Rock did a surprise set downstairs, and then he came upstairs to where it was blocked off except for our party and sat in the back and ate. And my son, who’s 15, waited for the opportune moment and walked up to Chris Rock with a copy of my book and asked him to sign it. And Chris Rock was very kind and did so. So, now my son has a copy of my book signed by Chris Rock, and he is clear, that is his book, not mine.

Preet Bharara:

Was there any message?

Elie Honig:

He wrote, “Be cool.” That’s a message.

Preet Bharara:

Be cool?

Elie Honig:

Yep, “Be cool, Chris Rock.”

Preet Bharara:

That’s a tall order from Chris Rock.

Elie Honig:

Yeah.

Preet Bharara:

Anyway, how are you going to live up to that?

Elie Honig:

I know when I have a losing battle. I’m not going to try.

Preet Bharara:

So, let’s talk about the book. The book is about Bill Barr, whole book. It’s not an article. It’s a good, readable, factual, interesting take, obviously quite negative on Bill Barr, I think for good reason. And we can talk about particular things that you describe in the book. But why an entire book for this one guy?

Elie Honig:

That’s a good question, because he violated everything that I was taught or the most important things that I was taught in my eight years at the Justice Department. And I sat here, thankfully, I had the platform of CNN and CAFE and other places to vent a bit, but I sat here for the almost two years he was in office sort of going nuts, raging, waving my fist at the clouds at the things that he was doing. And we’ll get into those. And it hits at the core of sort of, not just the job I did and you did at DOJ, Preet, but also, I don’t want to overdramatize it, but who you are and who I am, because being a federal prosecutor, and I wonder if you agree with me, but I think it’s one of the very rare jobs that actually changes who you are as a person in a good way, in a way that can be humbling, that I talk about in the book, but gets in your bones and gets in your blood.

Elie Honig:

And to watch someone come along a few years later and just trash the place was more than I could bear. And really-

Preet Bharara:

Did you think about a few chapters on Jeff Sessions? Did you think he was a paragon of virtue and quality and competence at the helm of the Justice Department?

Elie Honig:

Not at all. No, I did not think Jeff Sessions as a paragon of any of those things, I do dedicate-

Preet Bharara:

So, why a book on Barr and nothing on Sessions?

Elie Honig:

Because, and I dedicate a half of a chapter to Jeff Sessions, because Barr was different. And let me explain what I mean, I can actually use a little SDNY anecdote to explain what I mean. During what I call the pre-interregnum, the years between when you were there as an AUSA, and then when you came back as U.S. attorney, we had a speech from Alberto Gonzales, who was the new attorney general at the time. And this is, the AGs go round and speak to all the U.S. attorney’s office, and they give a stump speech. And so, we all walked over and packed into the ceremonial courtroom, and Gonzalez was giving his speech, and at one point, he said, “One of the things that we’re going to prioritize now under my administration is obscenity cases.”

Preet Bharara:

Right, I heard about that. I was working in the Senate at the time, and I got a number of emails from people saying, “You’re not going to believe what just happened.”

Elie Honig:

It’s so appropriate that you did, because what happened after that speech, you know how it works at SDNY, everyone runs back to their computer, everyone’s got to get the joke off first, and there was about 20 emails, office-wide emails people had sent, congratulating their favorite person to make fun of on being named the chief of the newly formed obscenity unit.

Preet Bharara:

Obscenity unit. If that directive had been respected, maybe Chris Rock would have been prosecuted and you wouldn’t have gotten the signature.

Elie Honig:

It’s a good point. It’s circle of life stuff. The point of my story is this, it was silly for Alberta Gonzalez to stand in front of a room full of people who prosecute terrorism and securities fraud and mob stuff, and to tell them, “We’re going to be doing obscenity.” And we all giggled and rolled our eyes and all of that. However, you may agree or not agree with the policy priorities of a given administration or given attorney general, “What we’re going to emphasize, what we’re not going to emphasize,” that kind of thing, but when I was there, I don’t remember anyone ever questioning whether Alberto Gonzales or any of the other AGs, Republican and Democrat that I served under, were honest, had their credibility intact, and were independent when it comes to the prosecutorial function.

Elie Honig:

Those two things were never in doubt to me for any of the, Mukasey, Gonzales, or Ashcroft, or later, Eric Holder, that I served under. And I think Jeff Sessions is far from perfect, I’m very critical of him, but I don’t know that anyone ever seriously questioned his core credibility. I do write about when he was very dodgy with Congress, and his core independence highlighted by the fact that Jeff Sessions took himself out of the mother case, which Bill Barr should have done, but didn’t do. So, I think they’re different in kind.

Preet Bharara:

Yeah, I would quarrel a little bit with the characterization of Alberto Gonzales. As some people might know, I spent a substantial amount of time in the Senate, part of the bipartisan investigation into the politicization of the Justice Department, we don’t have to talk about that now, but Gonzalez at best, was sort of an unwitting enabler of a lot of politics entering the Justice Department. And he and most of the top staff at the Justice Department ended up resigning over a variety of things they did in the wake of the firing of a number of U.S. attorneys at the end of 2006, and an investigation in 2007.

Preet Bharara:

But I take your point, in your mind in modern times, Bill Barr is the apex of what you think an attorney general should not be.

Elie Honig:

Right. Or the nadir, if I can use a fancy word.

Preet Bharara:

Yeah, I guess apex is right. Is part of that in your mind? And I wonder, you hinted this in the book, is part of the reason for that assessment that you believe Bill Barr is really, really smart and should know better?

Elie Honig:

Yeah, that’s an interesting one. I think Bill Barr is certainly smart enough to know better. By the way, I don’t quite buy into this, sometimes people go, “Oh, Bill Barr’s brilliant.” He’s not quite brilliant. And I base that on, if you read the things he’s written and if you read some of the legal positions he’s taken, they fall apart really, really quickly. And I do some of that in the book. But yeah, I mean, when Bill Barr’s name was first announced, I talk about this in the book, I happened to be on set at CNN that day, and they got in my ear and said, “We have the name of the person that Donald Trump’s going to be nominating.” And there were various names in the atmosphere, some of which were crazy, up to and including, or down to and including Rudy Giuliani.

Elie Honig:

So, when I heard the name, it rang a bell because he had been AG in the ’91 to ’93, and I did some quick research and I said, and I asked a producer to pull this quote so I could quote myself in the book, I said something like, “He’s serious, he’s respected, and he seems like a strong pick.” And I put that in the book, A, because I wanted to be clear, I didn’t have my knife out for this guy from the start, I was more than willing to give him the benefit of the doubt.

Preet Bharara:

Well, because who we had at the time was the interim or acting attorney general, Matthew Whitaker, who, not deserving of a book of his own because of the length of his tenure among other things, but I thought that he was unmitigated disaster, and so, you get someone who understands the building, who has been there before. And by the way, I dealt with Bill Barr when I was in the Senate on various matters relating to some legislation when he was at Verizon, and found him to be sort of a normal mainstream Republican, many of whom I knew and worked with collaboratively, and I’m another one of those people, along with you and Ben Wittes and others, who a little bit welcomed his nomination.

Elie Honig:

Yeah. I thought he would be a very important guardrail. I didn’t expect him to go in there and be Sally Yates or something, be a sort of tried and true Democrat, I expected him to be solid and to, I know I’m setting the bar really low here, no pun intended, but not to lie to us. How about that? About the Mueller report, about election fraud, about the firing of Geoffrey Berman and other lies that I lay out in the book, and not to play politics as really overtly and relentlessly as he did. And again, we can get through this with Michael Flynn, with Roger Stone, with Ukraine.

Elie Honig:

And by the way, Preet, you mentioned one thing that I think is an important little detail about Barr, I think he gets away with a lot or got away with a lot in terms of his reputation and the way that public viewed him, because of his demeanor.

Preet Bharara:

You say this in the book, and you say that his sort of partisanship and politicking is… I think the phrase is something like, is obscured by his hangdog look.

Elie Honig:

I say, “Obscured by his veneer of intellectualism and his hangdog demeanor.” And I did not make any comment on the man’s appearance other than that. And here’s what I mean, when you think of the sort of most dangerous Trump enablers, the loudest ones, you think of the Jim Jordans, and the Mo Brookses, and the Rudys, right? And all of them are fire breathers, and they yell into the mic and they say crazy, outwardly crazy things. Bill Barr didn’t do that. Bill Barr has a quiet, soft-spoken, laid back manner. I’m sure he’s a decent guy, by the way, I never met him. I asked his people twice if he would speak with me for this book, not surprisingly, they declined. But I don’t say he’s a horrible person, I don’t know what he’s like. I’m sure he’s fine to sit and have lunch with.

Elie Honig:

But he got away with it because, not only does he have that look, but he dressed himself up with the DOJ seal. I mean, when you’re the attorney general, you carry that weight with you, right? When brand new AUSAs, Preet, they tell us, “Every time you stand up in court and say, ‘Representing the United States,’ you carry the entire weight of DOJ, so, don’t blow it, don’t lie, don’t screw up.” He’s the AG and he had that sort of cover going for him, and a lot of the things he did were deeply dishonest and deeply damaging, but they don’t hit you in the face the way a Jim Jordan or a Mo Brooks does.

Preet Bharara:

So, one of the things that you criticize, not just about Bill Barr, but about the entire leadership towards the end of the Trump term is the lack of a certain kind of experience that Bill Barr had, never tried a criminal case. And that was true of some other people at the top of the department. And, look, I prefer people who have that experience too. There have been U.S. attorneys and other people at the top levels of the Justice Department who have not had that particular experience. And I wonder what you think of, for example, the U.S. attorney in your home state for a period of time, Chris Christie, never tried a criminal case, I don’t think ever tried any kind of case. Was he an effective and competent U.S. attorney, not withstanding that lack of experience?

Elie Honig:

It’s so funny you said that because about five seconds before you said the name, Chris Christie, I thought, “I’m going to talk about Chris Christie.” I think that Bill Barr was greatly handicapped in his performance by the fact that he was never a line prosecutor like you or me. He never worked in U.S. attorney’s office, he never prosecuted a case. And throughout the book, I give sort of very vivid examples of things I learned in the courtroom, things you learned in the courtroom, that he never learned, those principles, those basics, the things I call the prosecutor’s code.

Elie Honig:

Now, can a person take a job like this without ever having tried a case and be effective? I think so, and I think Chris Christie is a good example. By the way, just trivia question, Chris Christie actually had tried at least one case before he became U.S. attorney, and I think-

Preet Bharara:

News to me.

Elie Honig:

And here’s what it is, because he used to tell stories about this, it was like, it was a medical malpractice case involving a foot doctor, a podiatrist. And he used to brag about the way he tore apart the podiatrist on cross or something like that. But that is very different, of course, than trying a criminal case. But here’s what you need if you’re going to succeed, you need to start with, I know it sounds funny, thinking about Chris Christie, but you need to have a bit of humility. And I know Chris Christie is not known for his humility.

Preet Bharara:

You want to rephrase that?

Elie Honig:

No, no, no, because he had the humility at least to recognize that he didn’t know this job, he didn’t understand this job, and so, what did he do? He surrounded himself. His top people were all real, what I consider real prosecutors. And that’s one of my things with Barr, not only had Bill Barr never tried a case, but I go through this early in the book, his top three or four criminal side advisers, the Deputy Attorney General Jeffrey Rosen, the Associate Attorney General Claire McCusker Murray, even the head of the criminal division, Brian Benczkowski, none of them, none of them even tried a trigger lock case, the kind of cases I was trying when I was 29 years old.

Elie Honig:

And I want to really be clear, that criticism is not just sort of a flex, like I’m better than these guys, I mean, I think I am in that respect, but they didn’t learn the core lessons of being grilled by a judge and having everything you say tested by a defense lawyer, and having to stand up in front of a jury and be credible and not stabbing your colleagues in the back. And I have sort of old war stories from the SDNY to illustrate each of those. So, that’s really the point that I’m trying to make with that observation.

Preet Bharara:

Let’s talk about some of the specifics, and there’s lots of things that you mentioned that are part of your indictment of Bill Barr and his tenure, including, as you’ve mentioned, his reaching down and imposing his will on the Roger Stone case, on the Michael Flynn case. There’s various things that I want to get to, including how he basically fired my successor at the SDNY and how he made misstatements and false statements about that, in my view. But I want to start with the election stuff, because it’s complicated to me in some ways, but also very simple in other ways. And I’ll start at the end instead of going chronologically. We’re going to reverse chronological.

Preet Bharara:

Some days before your book launched, and we’re recording today on July 6th of 2021, which is the official date of your book launch, Bill Barr did an interview with another person who’s a journalist, Jonathan Karl, a very respected person, in which he made it a point to present himself as someone who did not believe in the big lie.

Speaker 3:

Former Attorney General William Barr says he suspected Former President Donald Trump’s claims of widespread election of fraud were “all BS,” but he launched on official inquiries, and to some of them, to appease boss.

Preet Bharara:

What do you make of Bill Barr’s statements before the election about potential election fraud versus what he said to Jonathan Karl?

Elie Honig:

It’s wonderful to hear Bill Barr now acknowledge this stuff as bullshit. The problem absent from The Atlantic article is that Bill Barr spent months before the election pumping that very same bullshit out there. And this all happened last week, my book, of course, was already printed, but I focus on this quite a bit in the book because I make the argument, look, I’m tired of this revisionist history from all of Trump’s enablers, especially when it comes to January 6th, they’re all trying to rewrite the way it actually went down. Bill Barr, in December of 2020, weeks after the election, when it was clear to any sane, rational person that it was over, did come forward, tell the Associated Press that DOJ had not found evidence of widespread voter fraud.

Elie Honig:

I talk about that in the book. It’s good that he did that, but it doesn’t even begin to balance out the damage that he did. He, and I lay this out in the book, he went on NPR and he lied about the risk of election fraud, in June, five, six months before the election. They had to issue-

Preet Bharara:

What was the lie?

Elie Honig:

He said that there was this enormous risk that can’t possibly be policed of foreign actors sending in counterfeit ballots.

William Barr:

And there are so many occasions for fraud there that cannot be policed. I think it would be very bad. But one of the things I mentioned was the possibility of counterfeiting.

Speaker 5:

Did you have evidence to raise that specific concern?

William Barr:

No, it’s obvious.

Elie Honig:

And NPR, by the way, a week or two later, God bless them, had to issue a correction entitled, NPR Let The Attorney General Come On Our Air And Tell A Falsehood. And in that retraction article, they quoted actual election experts who said that Barr’s statements were, and I quote, preposterous, false, and my favorite, nuts, I love that, some guy from MIT said, the things he was saying were nuts. I like that plainspokeness from some MIT scientist. He then went in front of Congress, repeated the same garbage. And then he went on CNN, where you and I are contributors, and went in with Wolf Blitzer. And can you imagine doing this, Preet?

Elie Honig:

I mean, as U.S. attorney, imagine you’re going in for a national interview, and you know, you know you’re going to be asked about election fraud, and Bill Barr sits down and says, “I’ll tell you something, Wolf, we,” he said we, “we have a case down in Texas involving 1,700 fraudulent ballots.” And I’m watching that, and I’m thinking, “Oh, wow. Okay, well, that is substantial.” Turned out, first of all, the we was not DOJ, it was the state. I don’t know how you don’t get briefed on that. And the 1,700 ballots, they went and found that, and New York Times or Washington Post went and found the actual prosecutor, who said, “Oh, that case involved one fraudulent ballot, one.”

Elie Honig:

And so, DOJ had to walk it back and they issued a correction. By the way, profile’s encouraged. Do you remember their correction? They said, “Oh, some low-level staffer messed it up in a memo, so, it’s that person’s fault.” Wow.

Preet Bharara:

Yeah, he blamed the briefer.

Elie Honig:

Yeah, how courageous.

Preet Bharara:

Look, I was on TV with Wolf Blitzer right after that interview and was asked to comment. The other thing I remember from that interview besides what you just mentioned, was he blindly said that, “You’re going to get fake ballots from abroad.” And Wolf, to his credit, asked him multiple times, “What evidence do you have of that? How do you come to that conclusion?” And he just said, “Common sense, common sense.” But I’m confused though, Elie, he says all these things, he looks like he’s trying to lay the foundation because of Trump’s wish that an election loss will be spun as something that happened because it was a fraudulent election, that it was stolen from him, and he’s saying all these things without evidence. Some of it has to get retracted, some of it clearly untrue. So, what happens to him at the end? Why doesn’t he persist in this?

Preet Bharara:

Do you think he had a revelation? Do you think he just had a line beyond which he wasn’t prepared to go? Do you think he fell out of love with Donald Trump? What explains the difference in his conduct at the end, which you have conceited as good, when he said there was no widespread election fraud, versus what he did before, when he was spouting forth about things that were not true?

Elie Honig:

Because reality smacked Bill Barr in the face. And remember, it took him until December till he finally came clean about the fact that there was no election fraud, no massive election fraud. And I think Bill Barr, again, he tries to give us off this image of being above it all, and, “I’m just,” he said during his confirmation, “I’m sort of a semi-retired grandpa, I don’t need this stuff.” Bill Barr cares about the way he’s perceived. I think that is clear. And remember the quote from Bill Barr, the infamous quote, when he was asked about the Michael Flynn case, he said, “History is written by the winners.”

Elie Honig:

Now, on December 1st of 2020, Bill Barr is no Rudy Giuliani or Jenna Ellis. He knew that it was O-V-E-R, over. And so, he’s got to think about preserving his reputation. He doesn’t want to go down in history in the dust bin of loonies that are clinging to this election fraud thing into December and January, and so, I think he made a, look, he did the right thing there, I say that in the book, and inarguably, it was the right thing to do, but also, he had an eye toward self-preservation. He’s trying to jump off the ship as it’s sinking and be able to still have some modicum of acceptance in the legal community and in the civilized world.

Preet Bharara:

I mean, there are a lot of people who didn’t jump off, even Jeff Sessions, in a way that I still think bespeaks a lack of self-respect, even after he was jettisoned, and even after Trump humiliated him again and again and again, he ran for his old Senate seat, and he did it without denigrating the President. He didn’t really leave the train, and lots of other people haven’t really left the train, including Rudy Giuliani and some other people, do you think that’s because Bill Barr wants to go back to sort of traditional sober or legal circles, or something else?

Elie Honig:

I think it’s the former, I think it’s because he wants to be accepted in the sort of mainstream world, and because, look, who knows if Rudy’s acting or if he really believes this crap? But I think Bill Barr was clear-eyed enough to understand that it was over. And by the way, one more pro and one more con on this story, and a lot of the details, when you go back and look at these, you forget, another pro for Bill Barr is, he didn’t have to say anything in December. There was no occasion for him. He went out and-

Preet Bharara:

Oh, he went out of his way.

Elie Honig:

Yeah.

Preet Bharara:

He called, as you describe-

Elie Honig:

I say that. Yep.

Preet Bharara:

He had his folks call up the AP, and Jonathan Karl describes this as well in The Atlantic, he wanted to make the point, now, what we have omitted discussing for a moment here, before we give him too much credit, even for that about face, is there was a political reason that was not about purity and about accuracy and transparency and truth, for why he made the statement, because it followed a phone call between Mitch McConnell, I guess then the Senate majority leader still, and Bill Barr. What do you make of that?

Elie Honig:

You read my mind. It is outrageous to me, it is so telling to me that Bill Barr thinks, and look, Bill Barr’s giving Jonathan Karl this story, I mean, that’s on record, and one of the things Bill Barr tells Jonathan Karl, apparently, in an attempt to make himself look good is, “I was in communication with Mitch McConnell, and Mitch McConnell said to me, ‘Hey, we need someone to come out, and you’re really the only person who can do it and set the record straight on this because we got to make sure we hold on to Georgia, that we have those two seats up for the runoff, that we’re going to determine control of the Senate.'” And Bill Barr seems to think that it’s good that he was in communication with Mitch McConnell, and decided to act, in part, for those reasons.

Elie Honig:

To me, I mean, Preet, this is-

Preet Bharara:

It’s bad. It’s utterly suffused with politics.

Elie Honig:

Right. This is why you got fired, Preet, because when you got a call that might’ve been like this, you did the right thing and you said, “I’m not returning that call.” And Bill Barr says, “Hey, everyone, I returned the call and I acted on it.” So, that shows how out of touch he is. By the way, the other thing I want to hold against Bill Barr on this particular note is, after, when he left, a couple of weeks later in mid-December, he wrote his resignation letter, this disgusting sycophantic owed to Donald Trump, and in it, he took back a little bit the whole no election fraud thing, he said, “I just want to stress for you, Mr. President, we are still investigating the possibility of election fraud.” So, he undermined his own good deed there as well.

Preet Bharara:

I mean, the other things he said in recent times include a description of wanting to have an investigation, one that he authorized before election was certified, which was contrary to longstanding Department of Justice policy, for the purpose of being able to say to Trump, “We took a look at this, we investigated this, and we didn’t find anything there,” which doesn’t make it a pretext necessarily, but it is about CYA with the President, and the President’s desires as opposed to something intrinsically proper.

Elie Honig:

And there was this interesting piece where Barr did tinker with what you and I know as the 60-day rule or the 90-day rule, which is, DOJ is not going to announce a major case or take some overt action like a search warrant in 60 or 90 days, it depends who you act. By the way, are you a 60 or a 90-day guy?

Preet Bharara:

Well, I think people get this whole thing wrong, that there’s a particular guideline.

Elie Honig:

Cut off. Yeah.

Preet Bharara:

There’s a particular guideline with respect to a particular kind of crime, and the overall, you don’t take any action that might affect an election is prudential. And there are sometimes very good reasons to take an action three weeks before an election if you have evidence that a sitting U.S. Congressman or a candidate for Congress has shot and murdered somebody, you don’t wait.

Elie Honig:

Absolutely.

Preet Bharara:

And so, I think people, it’s a guideline, it’s more about electioneering crimes, and I know one of the things that you’re suggesting is that should be codified, as opposed to being just a mere sort of unwritten rule.

Elie Honig:

Yeah, it’s one of these weird things where every AG issue is essentially the same letter, and I think there’s no reason not to codify it. But you may remember this one thing where Barr tweaked that rule and then DOJ made an announcement about these mysterious, this is a little before the election, these mysterious ballots in Pennsylvania which had been found discarded. And it was, they first said it was nine ballots for Trump, then they said it was seven, and it turned out, they weren’t discarded, they had just been improperly filled out. And you may think of that, “Well, nothing ever came with that, no criminal charges, no civil charges, who cares?” Well, guess what, when Rudy and those nut-jobs were challenging the election, they cited that press release, they cited that announcement by DOJ as some kind of evidence.

Elie Honig:

So, these little adjustments and sort of compensations that Bill Barr made ended up being used in court as purported evidence of this nonsense.

Preet Bharara:

My conversation with Elie Honig continues after this. So, some people have come to Bill Barr’s defense, Andy McCarthy of the National Review, and I know you don’t like what he wrote, and I don’t agree with much of what he wrote. He was, by the way, I don’t know if you know, he was my supervisor-

Elie Honig:

No, I did not know that.

Preet Bharara:

… for a year at SDNY. He was longstanding assistant U.S. attorney and supervisor under Mary Jo White and other U.S. attorneys back in the Southern District. So, he defends Bill Barr and says you’re barking up the wrong tree and he makes various arguments. But one of the things he says is that, “Look, Bill Barr did not do the sort of implicit bidding of the President of United States, which included a desire for his adversaries to be investigated and prosecuted like Andy McCabe and Jim Comey and others.” What do you make of that defense?

Elie Honig:

Yeah, there is some truth to that. And by the way, I talk about this in the book. By the way, I’m convinced, McCarthy did not actually read the book. He really doesn’t have any negative words for the book, it’s just, he had some pre-written owed to Bill Barr that doesn’t even match some of the things I say in the book. That said, I do know that Bill Barr gets credit for, to some extent, for not… even though the President was saying, “I want to see Joe Biden and Barack Obama handcuffed, and Andy McCabe,” and that kind of thing, and really, the better example is Hunter Biden.

Elie Honig:

Here’s what I say, Bill Barr, he showed us throughout his term that he was willing and able to be dishonest, to fudge the facts, to fudge the law, but he’s not a wizard. He can’t conjure something out of nothing. And even if Bill Barr had wanted to slap cuffs on Joe Biden, or Barack Obama, or Hillary Clinton, you can’t walk into a grand jury with no evidence, and I think grand juries are pretty easy to get indictments, but you can’t walk in with nothing, or you can’t walk a complaint into a judge with nothing and walk out with an arrest warrant. So, he had nothing to work with. And I also think Bill Barr did have his lines, I don’t argue that he had no lines, and I think he even recognized that you have zero evidence to arrest Joe Biden or whoever, and-

Preet Bharara:

People forget when they talk about these things and the degree to which you can debate this, the degree to which a leader of an organization can corrupt it. And obviously, leadership begins at the top, and there’s tone issues, but Bill Barr, or frankly, Preet Bharara as U.S. attorney, or you, when you were in the state AG’s office, you’re not the one interviewing the witness and going into the grand jury, so, someone has to do your bad bidding. If you’re a corrupt person, if you want to carry out some corrupt instruction from a political leader like the president or someone else, and the rank and file person can’t walk into the grand jury naked with nothing to use, just because someone says from on high, “Charge the case.” Right?

Elie Honig:

Exactly. And on that note, by the way, this is one of my favorite sort of stats of the Bill Barr era like you’ll see these baseball stats, seven different career federal prosecutors resigned in protest off of four separate politically charged cases because of Bill Barr’s interference. And Flynn, and Stone, and we can talk about that. But, God, can you imagine? I mean, if he had tried to… Yeah, Bill Barr’s not going to go in the grand jury. I pushed his cart, his evidence cart into the grand jury.

Preet Bharara:

We talk about how he imposed his views from way up high, seven levels down, with respect to the sentencing the Roger Stone case, which, by the way, I don’t know if you’ve said the same, but I thought the sentence being asked for by the career folks in the Roger Stone case was a bit high.

Elie Honig:

I said that on air, and I wrote a piece about it. Yeah.

Preet Bharara:

And as you write in the book. That’s very different from having the attorney general single out that one case of all the tens of thousands of cases in the country, for his personal involvement. Because there are other cases where… You think that’s the first time that career prosecutors sought a sentence that was maybe higher than what the attorney general or some other person thought was appropriate? Of course not. And the first person, by the way, who would have complained and gone ballistic in the Southern District of New York, if Janet Reno or John Ashcroft reached down and tried to tell us what our sentencing recommendation would be, would have been Andrew McCarthy, my former chief, who writes this piece about your book.

Preet Bharara:

And what’s interesting to me is the minimization on the part of people who know how the department is supposed to work, and in particular, have the benefit of the tradition of independence that the Southern District enjoyed, and is proud of, to think that there was nothing to see with respect to the Stone case, or the Michael Flynn case. It’s not a thing that attorneys general are supposed… they’re allowed, yeah, they’re at the top of the food chain, they’re at the head of the hierarchy, but that’s not something that would have been tolerated by some of these people who were writing about it when they were in the position.

Elie Honig:

That’s a great point. I don’t know McCarthy enough to vouch for that, but certainly, that would be the SDNY ethic. I really have two beefs with the way Bill Barr handled both the Roger Stone and the Michael Flynn cases. First of all, people have said to me, “Oh, but he’s the AG, he gets to overrule people.” Of course. Look, we’re all part of this hierarchy. I mean, you, I’m sure, overruled me maybe on something I wanted to do on a case, my unit chief certainly did, and later when I became a chief, I would say to people, “No, let’s not take that plea,” or, “Let’s do it a little differently.”

Elie Honig:

But the problem is, the line prosecutors, the people who tried Roger Stone and got that guilty plea out of Michael Flynn, they went through all the required levels of approval. They got their U.S. attorneys to sign off, they signed their names on DOJ letterhead, they filed those motions on EC, on the electronic filing system, and then Bill Barr stabbed them in the back. And that is a core prosecutorial, just an unwritten rule, you don’t stab your colleagues in the back publicly after they’ve already been approved. That’s number one. Number two is Bill Barr tried to tell us, he did an interview later where he was asked about, “Why did you interfere in these two cases?” He came up with this line, he basically said, “Those are the ones that came across my desk.” I mean, give me a break.

Preet Bharara:

It’s almost as if, what I thought was peculiar about that, there was a certain kind of arrogance associated with it. And you could have a view about whether or not the sentence was too high or not, and I actually agree with Bill Barr about the severity of the sentence being requested, but I would also, if I were the attorney general, even if I thought it was a wrong thing, and even if in good faith, I thought, “This is a miscarriage in some way,” but of course, the judge gets to decide, and I think, most clear-minded people didn’t think that the judge was just going to accept what the prosecutors were advocating for, and it turns out that the judge didn’t, in any event.

Preet Bharara:

But I would have worried about how it looks as the attorney general of the United States, that one or two times in my entire tenure that I reach down and do something unusual is with respect to an associate, an ally, an advocate of the president. It’s different if you’re like micromanaging… And, look, I got micromanaged on some things and tried to resist that when I was U.S. attorney, by various people who I won’t identify in this broadcast, but I never thought it was for a political reason, sometimes people want to micromanage. And if Bill Barr was that kind of person, who heard about big cases, corporate cases, or other kinds of cases, and he’s the kind of guy who thought he knew better, and he is that kind of guy, and you had multiple examples of it, that would be one thing. But he’s in the case of Roger Stone and Michael Flint.

Preet Bharara:

And I get that some people say, “Well, at least he believed that Roger Stone was righteously convicted, he just thought the sentencing recommendation was too high.” That doesn’t excuse the fact that he is giving the appearance, which he didn’t seem to care about, that he’s giving the appearance that he’s siding with an ally of the president.

Elie Honig:

Yeah. And I talk throughout the book about the importance of appearances when it comes to DOJ. I mean, we are always taught, people are looking at you, and even if you have the right intentions, you can never do something, if at all avoidable, that makes people think that the deck is stacked or that there’s some political influence. Now, when it comes to Stone, I agree, I said on air, I almost predicted the sentence exactly. I said, “There’s no way he’s getting 78 to 90 months, it’s within a few months of…” whatever it was, somewhere in the 30s. That was easy to see coming. But I object to the way he undercut his people, and this is the part that made me nuts, and I think made a lot of people nuts, he tried to claim afterwards that his intervention with Flint and Stone was nothing political, it just happened that way.

Elie Honig:

I mean, let’s just get mathematical here for a second. DOJ prosecuted about 80,000 defendants per year under Barr’s watch, and the only two times he ever did anything like this, step down and undercut publicly the already approved position of his prosecutors was on Roger Stone and Michael Flint. I mean, we can get some sort of quantum physicists to calculate the odds of that happening by sheer happenstance, but I think we all know better.

Preet Bharara:

I don’t think we need a physicist, I think it’s just a calculator problem.

Elie Honig:

I think it’s just 80,000 times 80,000, but whatever that is.

Preet Bharara:

I don’t do math on the show, Elie, and I don’t take math questions. Can we talk quickly about one other issue, and I want to talk about some current events, as I bare on your book and the themes of your book, but this business where Bill Barr just summarily announced falsely that my successor, Geoffrey Berman, was stepping down. And everyone understands that that plain language means that’s a voluntary resignation or retirement, when that was not true, because he wanted to replace him with somebody who was perhaps more in the Barr orbit. How do you explain that false statement?

Preet Bharara:

And it’s not the biggest lie or false statement that he made, and maybe because of parochial interests, it sticks in my craw more than others, but the people who defend Bill Barr, how do you explain that? What do you make of it having done the research for the book?

Elie Honig:

This is one of the sort of forgotten lies of Bill Barr. I mean, the big ones are the Mueller report, and I think, his lies about election fraud. This was crazy because Bill Barr announces that Geoffrey Berman, your successor, I guess, confirmed successor. Well, no, he was never confirmed, but-

Preet Bharara:

He was appointed by the court.

Elie Honig:

… the U.S. attorney would be stepping down, and immediately, we were on a bunch of different SDNY text chains, we were all like, “No way, no way.” And then you, Preet, were on air with Don Lemon, when Geoffrey Berman, about an hour later, announced, “I have no intention of stepping down,” and Don put the question to you, and you had the perfect three-word response that I think I clapped my hands and cheered watching, do you remember what you said?

Preet Bharara:

Yes, because it’s in the book.

Elie Honig:

Right.

Preet Bharara:

Good for him. Good for him.

Elie Honig:

Good for him. And that’s exactly right. So, I mean, why would Barr do that? Why would he say this guy is stepping down when this guy has no intention to step down? What I posy in the book is because they understood, Barr and Trump, some combination of them, what a threat the SDNY, even under Bill Barr, posed. And I have a couple of chapters in the book where I talk about, why is the SDNY so famously independent? I say, “There almost seems to be a requirement that we always be referred to as the famously independent SDNY. I love it, I encourage it.” And it’s true.

Elie Honig:

And I explain though in the book what that independence means, and one of the things it means is, typically, we are independent from what we call main justice, the D.C. suits, the Bill Barrs or whoever it is, and we’re really difficult to control at the SDNY. And I lay out all of the cases that SDNY had and investigations pending at that moment in the summer of 2020, those key months leading up to the election, that could have impacted the President, maybe not directly, but collaterally, the Rudy Giuliani case, even at the time, the Jeffrey Epstein, Ghislaine Maxwell case, investigations into the Turkish bank, Halkbank. And I lay these out.

Elie Honig:

And I think if Bill Barr had gotten up and said, “I’m firing Geoffrey Berman, we’re dismissing him,” I think people would have gone nuts, and I think Bill Barr’s, appropriately, Bill Barr’s plan or hope there was, “Let’s try to get this done the soft way, maybe Berman won’t have the guts to fight us and he’ll just slink off into the night and it can look like he ‘stepped down,'” but God bless Geoffrey Berman, I don’t know him, I’ve never met the man, but for standing up and saying, “No way.” And then, of course, the next day, Barr had to come back and say, “Well, okay, but now you’re fired.”

Elie Honig:

And then the greatest thing of it is, Bill Barr then said, “I’ve asked the President to fire you,” because there was some constitutional question about whether the AG or the President had the authority, “and he has done so.” And then Donald Trump was asked, “Did you have anything to do with that fire in the SDNY?” He said, “No, I had nothing to do with it.” So, one of those guys is lying, Barr and Trump, I don’t know who, but take your pick.

Preet Bharara:

The AG shouldn’t be lying, whether it’s in a court document. And you also point out, this is not just your view, multiple courts have made statements about the disingenuousness and the misleading nature of some of the things that the attorney general has said, including with respect to the Mueller report, which people should read the book and get more details. Tell folks why this book about this person is more than about this person, and why it’s important for people to understand the material in this book.

Elie Honig:

Yeah, it’s really about the justice department. And I am sort of a DOJ purist. I was always raised, and by the way, I say in the book, I started as a prosecutor when I was 29 years old, which is a little bit frightening, looking back now at the ripe old age of 46, and how much responsibility you’re given at that young age. And you have to learn how to use it properly. And I detail some of those lessons I learned in the book. But one of the first things I was taught is, anytime you stand up, if, God bless, if you are privileged enough to ever get to stand up in court and say, “Representing the United States of America,” that all you have is your credibility and independence.

Elie Honig:

And for that reason, DOJ to me stands above and apart all the other agencies, and even apart from the executive branch, which I know it’s technically part of. And to watch Bill Barr lie like that, to lie like that, I mean, imagine, Preet, if one of our colleagues had been found on record by a judge to have been dishonest? And judges appointed by both parties found that Barr obfuscated and was disingenuous and lacked credibility. I mean, that is such an outrage and that is so utterly unacceptable. And then you pile on top of that, the use by Bill Barr, the weaponization by Bill Barr of the Justice Department for political purposes. And I want people to know what happened.

Elie Honig:

I don’t want Bill Barr’s malfeasance to get caught up, swept up in the enormous quantum of corruption that came out of the Justice Department. It’s easy to forget who was who and who committed what violation of the rules and the morals and the ethics, and I want to isolate what Bill Barr did hopefully so that we can understand it and so that no AG of any party will ever go down that road again.

Preet Bharara:

Now, as I think you’re aware, we have a new attorney general, Merrick Garland.

Elie Honig:

Yes, yes, indeed.

Preet Bharara:

And maybe this is a point in your defense with respect to how you think about these issues, you have been critical of Merrick Garland on a couple of scores. Why is that?

Elie Honig:

Yeah. So, Merrick Garland inherited a very difficult task, unlike Bill Barr, he was a deeply experienced line level prosecutor. Merrick Garland has, I think he has two options available to him. Option A is, “Let’s just stay out of the political turbulence here. Let’s just rock the boat as little as humanly possible.” Option B would have been, “I need to go in and affirmatively start undoing some of the things Bill Barr did.” Now, Merrick Garland clearly has gone for option A, including in the E. Jean Carroll case, where Bill Barr, and I’m very critical of Bill Barr in the book for undertaking the defense of Donald Trump in the defamation lawsuit by Jean Carroll.

Elie Honig:

Judge Kaplan, who you and I appeared in front of, agreed with me and said, “No, this is not legally correct.” And I thought Merrick Garland should and could have reversed that and said, “We’re not appealing this.” But instead, Jeff Sessions said, “We are going to appeal this. I’m basically going to take the same position as Bill Barr.”

Preet Bharara:

Not Jeff Sessions.

Elie Honig:

I’m sorry, Merrick Garland.

Preet Bharara:

Let’s leave that in because that’s just an interesting, what you’ve said.

Elie Honig:

Merrick Garland said, “I’m going to stick with Bill Barr’s position.” I think that’s a mistake. I think he’s wrong as a matter of law, and I think he made a mistake because it was an opportunity for him to say, “We’re doing things differently here.” However, let me say one thing that I really do approve of, that Merrick Garland is doing, there seems to be an unscalable wall that ought to be there, that should always be there between DOJ and the White House. And the example that I think of is the day that DOJ did the search warrant on Rudy Giuliani’s home and apartment. There was public reporting that the White House was ticked off because that was the night of Joe Biden’s first big joint session of Congress speech. And I saw that the White House was ticked off and I said, “Good, good,” because the last-

Preet Bharara:

There was clearly no coordination.

Elie Honig:

Right. The last thing that Merrick Garland or anyone at DOJ should do is shoot a courtesy call over to the White House and go, “Hey, guys, just FYI, we’re not going to tell you what it is, but we’re doing something today that might steal some thunder.” It’s absolutely correct that they not do that, and that should never happen. So, I think Merrick Garland has done a much better job than Bill Barr, I think Merrick Garland needs to be more affirmative in reversing some of those abuses.

Preet Bharara:

Before I let you go, I want to talk about the recent indictment of two Trump entities and his CFO, Allen Weisselberg.

Speaker 6:

A Manhattan grand jury indicted The Trump Organization and Weisselberg last week, charging them with tax fraud, conspiracy, and other charges, alleging a 15-year scheme of tax evasion.

Preet Bharara:

And I’ve had a lengthy conversation with Joyce Vance on the CAFE Insider Podcast this week, I know you talked about it. You and I really haven’t gotten into it, and I wonder a couple of things from your perspective. And I think I know where you stand based on your Twitter feed and some of the appearances you’ve done, there’s this debate about whether or not this corporate charge is the tip of the iceberg, and there’s a lot more to come, or if it marks potentially all that the DA’s office has. And people like you and me and Dan Goldman and some others have the view that there might not be much more to come, because typically, the corporate charge happens at the end, and I wonder if you think that’s just because of our experience and approach in the Southern District, but we could be wrong.

Elie Honig:

Yeah, I’m on the skeptical side of things for where this is going, whether this is going anywhere significantly different. And indictment of Matthew Calamari or Weisselberg’s son doesn’t count, I mean something significant like of Donald Trump or maybe one of the Trump children. I don’t see it going there. Look, of course, you have to put in the disclaimer, but it’s necessary, we don’t know, we don’t know what they have, but I know the signs, I recognize the signs. It’s clear to me, they’ve put on a full court blitz to try to flip Allen Weisselberg. He’s absolutely the right person, he’s the obvious person to try to flip, and I found myself a lot of times in mob cases doing this.

Elie Honig:

You look at the hierarchy and you go, “Who’s vulnerable? Who might realistically flip? A son’s not going to flip against the father, who can we pry loose?” And I will tell you from experience, it sucks when you do that, when you pick on the person and then they don’t flip, because then you end up with a crappy case against some mope, not that Allen Weisselberg’s a mope, he knows what he’s doing, he committed fairly serious crimes.

Preet Bharara:

And now that this is a crappy case.

Elie Honig:

No, right, but not the case you hoped for, right? Not the case against the big shots and the bosses that you were aiming for. And so, Preet, people have to remember this, okay, there’s almost no question that the crime occurred, that they were paying people off the books and that they were not paying taxes, and that somebody had some intent and design there, I think Weisselberg pretty clearly had that intent and design, but you can’t just say, “Well, The Trump Org was doing this, Donald Trump was the boss, his name’s on the building. Come on, of course, he knew. Obviously, he knew. He must have known.” I mean, that’s basically what Michael Cohen said. That doesn’t cut it as a prosecutor. You cannot-

Preet Bharara:

Well, that’s maybe why they haven’t charged him.

Elie Honig:

Right. I mean, I think they don’t have the proof. And where would that kind of proof come from? One may wonder. Well, a lot of times you get it in an email or a text or a WhatsApp, Donald Trump doesn’t do any of those things.

Preet Bharara:

He doesn’t do any of those. Although Donald Trump, according to the indictment, signed some of those checks personally.

Elie Honig:

Yeah, but signing the checks doesn’t get you there, because signing the checks just shows that they paid people off the books and he knew about it. That’s not the crime, the crime is the, “And also, let’s not pay taxes on this and let’s do it this way for this reason.” And so, you need something to tie him to that next level. It’s not quite enough. And if you don’t have emails and that kind of thing, there’s no reason to think he was ever wiretapped secretly. And if you don’t have an inside cooperator, then I don’t know that you have the proof beyond a reasonable doubt that you need to bring a case like this.

Preet Bharara:

What do you make of the fact that many of the allegations set forth federal crimes, non-payment of federal taxes over time, defrauding of the IRS, and we don’t see either an indictment or criminal complaint out SDNY signed by a special agent of the IRS, nor do we have any reporting that the SDNY or the IRS is looking at those claims?

Elie Honig:

Yeah. So, first of all, I think there may have been some political, I don’t mean interference, like someone from above saying, “SDNY, thou shalt not look at this,” but I think SDNY understood it would have been very difficult to initiate this under the Trump regime. Meanwhile, the DA across the street, the state prosecutor got off to a running start on this years ago, two years ago, right? And at a certain point, and I’ve been both on the federal side and the state side, if you have a case, and you look across the street and you see they’ve got it, and by the way, it could be a little bit messy, it could be politically loaded, it could be a difficult case, usually, you’re just going to say, “Let them run with it,” even if there’s technically some federal versus-

Preet Bharara:

That’s not always the way that SDNY operates.

Elie Honig:

Well, right. But I know exactly where you’re going, and that’s why I put that qualification, because if there’s a great case that we all want, that we think is important and a strong case, then we will fight to the death over it, right? You and I-

Preet Bharara:

Right. So, that goes to the core of the question, which is, is there some chance that SDNY was like, “Yeah, this is not really worthy for prosecution”?

Elie Honig:

I think that’s exactly what happened. Yeah. We used to get in turf battles all the time when I was there. If there’s a strong case, a case where you think you’re going to win and you’re going to get a conviction, we used to fight with, when I was at state with the feds, the feds with the state, but if there’s a messy case or a difficult case, or a complex case, especially a case that could get really ugly politically, and the other side is doing it, you’re going to be good. “God bless, we’ll just sit over here and hope we can stay out of it.” That’s conjecture on my part, but I’ve been there on both sides of this.

Preet Bharara:

Your prediction on whether or not Weisselberg flips.

Elie Honig:

There’s no indication of it right now. I’ve seen people say they would never flip, and then when you slap the cuffs on them, that does tend to sober people up and bring them in. The problem though in flipping Weisselberg, I think the quality of the evidence laid out in the indictment is very strong, but the penalties aren’t quite heavy enough. I mean-

Preet Bharara:

Do you know he’s 73?

Elie Honig:

I know, I know. He’s about to turn 74.

Preet Bharara:

Do you think there’s a possibility that they’re thinking about charging his relatives, Weisselberg’s relatives?

Elie Honig:

That could be, and that is a tactic that we would use from time to time, I mean, only if you have the proof on it. And I think that could bring an extra level of pressure to bear on him. But, look, they’re going to need something to change. The prosecutors are going to need to upset the status quo here somehow or other. I also think there’s an element of psychology to all this, which is, Weisselberg’s charged right now, I’m sure his lawyers are telling him, “Look, we have a chance to beat this case. And even if you get convicted, we’ll be able to make an argument to the judge, we can’t promise you anything, but that you shouldn’t go to jail.”

Elie Honig:

And by the way, trial, in this case, is not coming this fall or early 2022, it’s still a ways away. And I’ve seen people, you’ve seen people, Preet, who were never going to flip, but on the eve of trial, they start getting cold feet. So, at the moment, they’re going to need something to change, they’re going to need some breaking news here if they’re going to flip Weisselberg.

Preet Bharara:

Presumably, the DA’s office has some indication, some evidence, maybe not probable cause, and certainly, not yet proved beyond a reasonable doubt that other people in The Trump Organization, up to and including Donald Trump, engaged in criminal conduct outside of the scope of this thing, outside of the tax evasion. And if they don’t have any of that, no whiff of that, then the expectations have been oddly raised for years, and that just doesn’t make any sense and doesn’t compute. And then somebody will need to answer for that.

Preet Bharara:

But to the extent that they have some inkling, some proof of other nefarious conduct of the type that’s been reported, like bank fraud, insurance fraud, et cetera, do you find it odd at all? I mean, do you find any universe in which that evidence wouldn’t also inculpate the CFO? And if so, do you find it odd that there’s no hint of any of that other potential misconduct on the part of Weisselberg in this indictment?

Elie Honig:

Right. So, the thinking is, if they had Weisselberg on other stuff, bigger dollar amount stuff like massively inflating or deflating value of assets, why wouldn’t it be in this indictment, right?

Preet Bharara:

Yes.

Elie Honig:

One school of thought is that they’re holding it back and they’re going to drop it on Weisselberg and maybe others in a bigger indictment. That’s possible, we could see that. I mean, we’ve been hearing-

Preet Bharara:

What sense does that make? What sense does that make?

Elie Honig:

Yeah, I mean, I can’t really make sense of it because if you’re trying to shake Weisselberg as a cooperator-

Preet Bharara:

That’s not how you would have done it.

Elie Honig:

Right. You would drop everything you have-

Preet Bharara:

You bring what you have, if the goal is to get him to flip, which it seems is the goal, you would do that, right?

Elie Honig:

Yeah, unless you’re trying to protect that piece of the case from disclosure, because we’re getting technical here, but you have to, as a prosecutor, make discovery obligations, you have to start turning over your evidence. And if the thought is, we’re still building that case, let’s say, the deflation of assets case against other players, we don’t want to start turning over discovery till we’re fully ready on all of them. But I agree, and, Preet, it’s a thing that happens sometimes to prosecutors, we used to say at the SDNY, there’s a difference between knowing something and being able to prove it to a jury beyond a reasonable doubt. And it happens.

Preet Bharara:

Of course.

Elie Honig:

I mean, there were times when I was sitting there sort of tearing my hair out, like, “I know.” And again, I’m not necessarily making a mob comparison, but that’s the world I operate in, where you’re like, “I know this guy did it, and informant’s telling me this guy did it, but I don’t have the admissible evidence to stand up in front of a jury and prove it beyond a reasonable doubt.” That’s a reality of being a prosecutor.

Preet Bharara:

What would be the reason, if you’re not finished, and there are other charges to come potentially to charge two Trump entities now? What I don’t understand, and I understand that I don’t have all the information, and I’m not an insider on this, but could you not have achieved the same goals of putting pressure on Allen Weisselberg just by charging Allen Weisselberg?

Elie Honig:

Here’s my theory on that, the prosecutors on this case, and in particular, the attorney general, Letitia James, state attorney general of New York, ran explicitly on, “Vote for me and I’ll nail the Trumps.” I mean, she said it many, many times. Now, I object to that, I don’t care if you’re a Republican saying, “Vote for me and I’ll nail this Democrat,” or vice versa. I don’t think that’s what prosecutors ought to do. Now, she’s put herself in a tough spot because there are expectations that go with that. And I think ultimately, if you’re thinking about, “How do I tell the public that I’ve not failed here,” it looks a lot better, it sounds a lot better to say, “We’ve indicted The Trump Org and this guy, Allen Weisselberg.”

Preet Bharara:

No, I see that, I take the point, that doesn’t answer the question about the timing. You can still do that later.

Elie Honig:

Yeah. Look, again, I’m positing here, but the first splash, I think, you want to be significant. I think you want the coverage of it to be… And the coverage, imagine what the coverage would have been if it was just Allen Weisselberg, right? It would have looked weaker.

Preet Bharara:

Yeah, but my view on that is, I think, and I said this with Joyce, I think to some extent, people are overstating the consequences of a charge against the Trump Corporation. And people use this term interchangeably, Trump Organization. The Trump Organization is not a thing, and it was not indicted. This much smaller and two small entities, the Trump Corporation and the Trump Payroll entity, have been charged, and I don’t know if the Trump Corporation has any banking relationships that could be nullified. If they own any real estate at all, they may, but I don’t know that they do, or do they have government contracts? All sorts of things that could be at risk because of an indictment and a conviction, it looks to me like none of that is true.

Elie Honig:

I think there’s a symbolic value in it. I think, look, it looks like a much stronger indictment if it leads off with the Trump Corporation and the Trump leasing company, whatever it is, as opposed to just state of New York v. Allen Weisselberg. I think it looks and feels much more substantial. There also could be an effort here to try, and you’re right, I mean, all these various Trump LLCs and organizations are largely just holding companies or branding opportunities, or that kind of thing, that don’t actually build hotels and things, and hire tennis pros, that’s a bit of a corporate illusion, but I think there may be some effort to at least choke off the flow of income, the flow of money, that can compel people to testify. I’ve seen that happen to flip when the money runs out. So, there may have been an aggressive play there as well.

Preet Bharara:

Well, my friend, our time has come to an end.

Elie Honig:

Sadly.

Preet Bharara:

As it always must. The book is, Hatchet Man: How Bill Barr Broke the Prosecutor’s Code and Corrupted the Justice Department. It’s a great read. It’s very important, in my view, not just to learn about the things that happened in the past, but to understand what the right blueprint is for doing justice in the right way, which is something that every good American lawyer or not should want to understand. Congratulations again.

Elie Honig:

Thank you, Preet. Thanks so much for having me, it really was a thrill.

Preet Bharara:

My conversation with Elie Honig continues for members of the CAFE Insider community. To try out the membership free for two weeks, head to cafe.com/insider. Again, that’s cafe.com/insider. 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 hashtag, #AskPreet, or you can call and leave me a message at 669-247-7338, that’s 669-24 Preet. Or you can send an email to staytuned@cafe.com.

Preet Bharara:

Stay Tuned is presented by CAFE Studios and the Vox Media Podcast Network. Your host is Preet Bharara. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. The CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Jennifer Korn, Chris Boyland, and Sean Walsh. Our music is by Andrew Dost. I’m Preet Bharara, Stay Tuned.