• Show Notes
  • Transcript

On this week’s episode of Stay Tuned with Preet, “Did Mueller Miss the Mark? Preet answers listener questions about the possibility of future Trump pardons, the strategy behind effective questioning of congressional witnesses, and how much influence Preet has at the top of the government.  

Then, The New Yorker journalist Jeffrey Toobin joins Preet for a conversation about his new book, “True Crimes and Misdemeanors: The Investigation of Donald Trump.” Toobin discusses the behind-the-scenes moments from the Mueller probe and impeachment, key figures from the investigations, and whether Chief Justice John Roberts is experiencing a jurisprudential shift to the left. 

To listen to Stay Tuned bonus material, try the CAFE Insider membership free for two weeks and get access to the full archive of exclusive content, including the CAFE Insider podcast co-hosted by Preet and Anne Milgram. 

Sign up to receive the CAFE Brief, a weekly newsletter featuring analysis by Elie Honig, a weekly roundup of politically charged legal news, and historical lookbacks that help inform our current political challenges. 

As always, tweet your questions to @PreetBharara with hashtag #askpreet, email us at [email protected], or call 669-247-7338 to leave a voicemail.

REFERENCES & SUPPLEMENTAL MATERIALS

Q&A:

  • Jake Tapper on Stay Tuned, 7/30/2020
  • Laura M. Holson, “‘No One Could Believe It’: When Ford Pardoned Nixon Four Decades Ago,” The New York Times, 9/8/2018
  • Katie Rogers, “Trump Adds Roger Stone to His List of Pardons and Commutations,” The New York Times, 7/11/2020

THE INTERVIEW:

RUSSIA INVESTIGATION

  • Jeffrey Toobin, “How Rudy Giuliani Turned into Trump’s Clown,” The New Yorker, 9/23/2018
  • Jeffrey Toobin, “The Michael Flynn Dismissal is Another Shot in Trump’s War on the Mueller Investigation,” The New Yorker, 5/8/2020
  • Rich Schapiro, “Rudy Giuliani butt-dials NBC reporter, heard discussing need for cash and trashing Bidens,” NBC News, 10/25/2019
  • Steve Hendrix and Tom Jackman, “Trump’s ex-lawyer John Dowd once brought down Pete Rose. They’re still fighting,” Washington Post, 3/22/2018
  • Matt Flegenheimer, “Andrew Weissmann: Mueller’s Legal Pit Bull,” New York Times, 10/31/2017
  • Trump’s Tweet about Meeting Mueller, Twitter, 7/25/2019
  • The Restaurant Scene from Heat (dir. Michael Mann), YouTube, 12/15/1995
  • Trump Twitter Archive
  • Emily Stewart, “Trump attacks Jeff Sessions over House Republicans indicted for financial crimes,” Vox, 9/4/2018
  • Preet’s Tweet on Collins and Hunter, 12/2/2019

INDEPENDENT COUNSEL BACKGROUND

  • Jeffrey Toobin, Opening Arguments: A Young Lawyer’s First Case: United States v. Oliver North, Penguin Random House, 2/1/1991
  • “A Sitting President’s Amenability to Indictment and Prosecution,” Justice.gov, 10/16/2000
  • Phil Helsel, “’Special Counsel’ Less Independent Than Under Expired Watergate-Era Law,” NBC News, 5/17/2017

IMPEACHMENT 

  • Jeffrey Toobin, A Vast Conspiracy: The Real Story of a Sex Scandal That Brought Down a President, Penguin Random House, 10/13/2000 
  • Ryan Goodman, “Lessons for Life: The Obituaries of Republicans Who Opposed Nixon’s Impeachment,” Just Security, 1/29/2020
  • “House votes to impeach federal judge from Louisiana,” CNN, 3/11/2010
  • Gil Cisneros, Jason Crow, Chrissy Houlahan, Elaine Luria, Mikie Sherrill, Elissa Slotkin and Abigail Spanberger, “Seven freshman Democrats: These allegations are a threat to all we have sworn to protect,” Washington Post, 9/23/2019

PRESIDENTIAL ELECTION

  • Jeffrey Toobin, Too Close to Call: The Thirty-Six-Day Battle to Decide the 2000 Election, Penguin Random House, 2001
  • Jeffrey Toobin, “Past and Precedent,” The New Yorker, 11/29/2010
  • Lissandra Villa, “After a Chaotic Primary, New York Scrambles to Reset for the 2020 Election,” TIME, 8/1/2020

SUPREME COURT

  • Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court, Penguin Random House, 9/30/2008
  • Jeffrey Toobin, The Oath: The Obama White House and the Supreme Court,” Penguin Random House, 9/18/2012 
  • Jeffrey Toobin, “John Roberts Distances Himself from the Trump-McConnell Legal Project,” The New Yorker, 6/30/2020
  • Jeffrey Toobin, “How Badly Is Neil Gorsuch Annoying the Other Supreme Court Justices?” The New Yorker, 9/29/2017
  • Jeffrey Toobin, “No More Mr. Nice Guy,” The New Yorker, 5/18/2009
  • Dahlia Lithwick, “Is John Roberts Moving to the Left?” Slate, 7/6/2020
  • Nina Totenberg, “Chief Justice John Roberts Rebuked Trump This Term. What’s He Up To?” NPR, 7/10/2020
  • Jessica Bennett, “How History Changed Anita Hill,” The New York Times, 6/17/2019
  • Aaron Rupar, “McConnell now says he’d hold SCOTUS hearings in an election year — in a reversal of 2016,” Vox, 5/29/2019

CLIPS

  • Andrew Weissmann on Stay Tuned with guest host Anne Milgram, 7/22/2020
  • Words Matter interview with Rod Rosenstein, 8/3/2020
  • Brett Kavanaugh confirmation hearing, New York Times, 9/27/2020
  • “WATCH: Mueller disputes Trump claim he wanted FBI job,” PBS, 7/24/2019
  • Colby Itkowitz, Trump uses discredited conflict-of-interest charges to attack Mueller, The Washington Post, 5/30/2019

Preet Bharara:

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

Jeffrey Toobin:

Mueller, has been criticized endlessly by Trump and Trump’s allies for his excessive zeal. But the problem with the investigation was insufficient zeal, that he tied himself in knots to figure out a way not to say what his report led, I think any reasonable reader to conclude, which was that Trump committed the crime of obstruction of justice.

Preet Bharara:

That’s Jeffrey Toobin, he’s the author of the new book, True Crimes and Misdemeanors: The Investigation of Donald Trump. It’s a gripping and detailed account of the Mueller investigation and impeachment. Toobin is a staff writer at The New Yorker, the chief legal analyst at CNN, and the author of seven other books about law, politics and American history. Jeff, last joined me for a live show in October 2018, when his new book was already in the works. Today, we catch up on all that’s transpired since then, from the shortcomings of the Mueller probe and Bill Barr’s web of controversies, to the surprising decisions of Chief Justice, John Roberts. That’s coming up. Stay tuned.

Preet Bharara:

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Preet Bharara:

Let’s get to your questions. This question comes in an email from Alex Lewin from California, “Hi, Preet, a follow up question to your response on your 7:30 podcast about whether and when the President could pardon Ghislaine Maxwell. You mentioned the galling possibility that he could grant her clemency before she’s convicted. Could he have pardoned her before she had even been indicted? Didn’t Gerald Ford pardoned Nixon without Nixon having been charged with a crime. If that’s the case, what would stop Trump from issuing blanket pardons effectively immunity from federal charges to his inner circle the day before he leaves office?”

Preet Bharara:

By the way, it has come to my attention that perhaps Anne Milgram and I have been mispronouncing that defendant’s name. It was our understanding that it was [Jilaine 00:03:06], but the preponderance of authority suggests to us now that it’s Ghislaine. Apologies for the error.

Preet Bharara:

Well, Alex, you’re exactly right. And it’s a depressing thought, and it doesn’t seem to comport with our sense of fairness and justice. But as I’ve said, many times on the show, the power of the pardon is written in the constitution and it’s essentially unfettered. There’s almost nothing you can do to stop it or stem it, or curb it. And it is not limited to cases where there has been a conviction. In the ordinary course under the principles and procedures and guidelines of the pardon attorney in almost all cases in the normal flow of things, a person is charged, a person is convicted, a person is sentenced. Often has served their sentence and is experienced and shown remorse. And then through a process that involves talking to the prosecutors, talking to the defense lawyer, talking to the judge, consulting within the justice department, a recommendation is made to the president about whether or not the person should be awarded clemency.

Preet Bharara:

There are exceptions to that, obviously. They’ve been bad pardons, bad commutations. But the general process that I’ve described is what happens. That’s just good practice, and builds people’s confidence and faith in an idea that the process by which someone gets a commutation or a pardon is fair and equal. And it’s not just people who are famous. It’s not just people who are connected to the president in some way, but everyone has an equal shot, depending on the circumstances of their case. But as we’ve seen with President Trump, in case after case, after case, none of that procedure has to be followed. None of those recommendations have to even be sought. None of those consultations need to happen. He can pardon anyone for federal crimes whenever he wants, and almost for any reason, not every reason, but almost for every reason.

Preet Bharara:

And you’re exactly correct. People sometimes forget this. Richard Nixon was never charged with anything. There was contemplation that he might face criminal charges in the federal system, but as at the time that Gerald Ford took office and decided in a controversial move to pardon the former president, his predecessor, there had not been any charge. And so, you can essentially exonerate in advance for charges unknown, unidentified, unspecified, a person in your own discretion. And obviously, Donald Trump can do that. And my concern is, that if and when he loses the election in the fall and concedes the loss, that will have a period during transition where he will with no consequence to him, no electoral consequence, no legal consequence, he’ll pardon or commute the sentences of all sorts of people.

Preet Bharara:

This question comes in a tweet from Nicole [Haderink 00:05:35], who writes, “At Preet Bharara, when you were an attorney for the judiciary committee, did you counsel members on strategy and questions to ask? They need some media training, #Askpreet.” Well, so I was on the judiciary committee for four and a half years, from 2005 to 2009, when I became the US attorney. And all the members had councils, small judiciary committee staff. The chairman at the time was Patrick Leahy. He had a larger staff because he was the chair. And yeah, the staff’s responsibility was among other things in connection with hearings, to do research about the issue, to the research about the witnesses, to draft questions for the members, follow up questions for the members. And so, we were in a position to counsel members, usually our own member that we worked for directly, but also the whole committee on strategy and questions to ask.

Preet Bharara:

I don’t know that they need media training. Most of the senators that were around when I was there were pretty savvy about the media, including the member for whom I worked, Chuck Schumer, who was famously smart and savvy about the media. And I’ll say it’s a point of personal pride. Generally speaking, the hearings that went on in the Senate Judiciary Committee, were I thought pretty intelligent, pretty thoughtful and pretty effective. I imagine that your question arises in the aftermath of The House Judiciary Committee hearing where Bill Barr testified.

Preet Bharara:

And I don’t mean any disparagement of The House, but there are a lot more members there. They have shorter question rounds because they have so many members. And I thought that last hearing, as you may have heard me discuss, was especially ineffective. I do think there’s a difference, and send your hate mail to someone else. But I do think there is a difference in the quality of hearings conducted by The House versus The Senate. And part of that, as I said, there’s a different experience level. There’s a difference in the number of people who were there to ask questions and the length of time that you get to ask questions.

Preet Bharara:

One of the things that was important for councils and the judiciary committee to do was to make sure to the extent possible, and it was not always possible, that when a hearing was coming up, we were coordinating with other members on our own side. So for example, if there were five hot button issues to discuss in an oversight hearing with the attorney general, for example, that there was some understanding of who would ask which questions depending on who is in the best position to do it, based on what their pet issues were and what their expertise was, and what their staff’s expertise was. That was not always possible because individual members have their own agendas, and they’re super busy and they’re not always coordinating themselves between members, and they’d have to rely on their staff.

Preet Bharara:

But sometimes you will find in those hearings, including in the Senate, that a member will ask a question will not get a very good answer and they will not do a great job of following up. And then you would hope that the next senator, well, the senator after that would go back to the earlier question probe further and get a better answer. And there was not a lot of that. Often that’s the case, because you might not appreciate, members come and go from hearings. So, if your hearing is going two or three or four hours, most members come when their staff summon them, at the time that they’re going to be called upon to ask their round of questions. And they have not seen often what has come before. And they don’t see what comes after. Often, this happens in The White House press briefing room also, and you hear criticism about this.

Preet Bharara:

Remember the media will ask a question, will not get a satisfactory answer, but then their time is up, and they move on to the next reporter. And often it is said, well, why doesn’t that next reporter pick up on the prior question? And that’s a good question to ask, why don’t they? It’s because they’re not coordinating. They had their own separate agendas. They have come up with their own question that they’re interested in asking. And they come from separate media organizations. So yeah, we tried to provide counsel on strategy and questions based on our research into the issues. But at the end of the day, it’s the members who were asking the questions. They have their own way of doing it. And I do think most members in the Senate are thoughtful and smart and want to get to the heart of the matter. The biggest problem to my mind is the filibustering and invasiveness of the witnesses, which sometimes is hard to pierce. And also, the lack of coordination in what gets asked.

Preet Bharara:

From at Dissent 911, that’s a depressing handle, Dissent 911, “At Preet Bharara, have you no influence at the top?” #Askpreet. No, I do not have any influence at the top. I don’t have any influence in my own house. I’m not sure I have influence to the media at the bottom either. But I’m working on it. It’s time for a short break. Stay tuned.

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Preet Bharara:

Legal journalist and author Jeffrey Toobin‘s new book, True Crimes and Misdemeanors: The Investigation of Donald Trump, is a cinematic account of Robert Mueller’s Russia investigation and the impeachment of President Trump. Jeff, joins me to explain what he thinks went wrong with the Mueller report, his approach to writing about such a tight lift investigation and how to make sense of the remarkably tense election awaiting us in November. Jeffrey Toobin, welcome to the show.

Jeffrey Toobin:

Hi, Preet?

Preet Bharara:

Hi. Welcome back to the show. We did a live event about a year and a half ago. We can’t do that anymore. Should we add fake crowd noises?

Jeffrey Toobin:

And cardboard cutouts of people watching like-

Preet Bharara:

It’s so weird the baseball with the fake crowd noise. Is that weird to you?

Jeffrey Toobin:

It is weird. My son is a big soccer fan. And the soccer noises that they make are even more bizarre because they are so modulating. And it actually feels real. I mean, they have so many different soccer sounds. It feels like it’s a real game, which is the point, I guess.

Preet Bharara:

I guess, that’s good. So, congratulations on the new book. It’s like your 340th book, right? Something like that.

Jeffrey Toobin:

Eighth. But who’s counting?

Preet Bharara:

True Crimes and Misdemeanors: The Investigation of Donald Trump. Did you ever, if someone told you seven, eight, nine years ago, that you would have a book with Donald Trump on the cover, would you have believed it?

Jeffrey Toobin:

Well, I mean, there’s so many things that I would not have believed if I had been told in advance. To be serious for a minute, I actually am not surprised that I wrote another impeachment book. I wrote a book about the Clinton-Lewinsky scandal. One of the themes of my career has been how the legal system and legalities have bled over into politics. So, I’m not totally shocked that I was dealing with another impeachment, but the fact that it was Donald Trump and this set of facts obviously is, would have been completely astonishing to me.

Preet Bharara:

Was this book harder in some ways to write than the prior books, easier, the same?

Jeffrey Toobin:

Hardest, hardest book of all eight, without question. Following the easiest of the ones. I did a book about the Patty Hearst case a few years ago, which was the first book that I wrote, which was at the borderline between journalism and history. And most of the people weren’t used to, everybody was happy to talk to me. It was interesting to them. The passage of time had sanded some of the anger on the part of some people.

Jeffrey Toobin:

This was definitely the hardest, in part because I originally signed to write a book about the Mueller investigation. That in itself was enormously difficult because the Mueller investigation was so buttoned up in terms of access. But when I started the reporting on the book, I didn’t know where the Mueller investigation was going to go. And then, of course, layered on top of it was the impeachment and the congressional investigation of Ukraine, which I had to report on the fly. And then, of course we had the pandemics. So, the combination of things made it enormously difficult. But actually, very rewarding in the sense that I got to tell the full investigation story.

Jeffrey Toobin:

I was worried at one point, I mean, all of this seems inevitable. In retrospect, I didn’t know that the impeachment trial was going to end in February. I thought it might end in April and then I wouldn’t make any of my deadlines. So, I’m grateful that, not only did I get to tell the whole story of the investigation, but I also got to start to talk about COVID, which I think is relevant. So, it’s a very satisfying project, but it was really a difficult one to report and to write.

Preet Bharara:

So, as you say that the Mueller team was pretty buttoned up, and I presume that part of the reason it was hard to write this book, is that not everyone would talk to you. So, how many people did you talk to?

Jeffrey Toobin:

Well, I don’t want to get into numbers, but it’s a significant number of the Mueller prosecutors. Mueller himself did not talk to me. But quite a few of the Mueller people did, virtually all of them after the investigation was over. That was another unnerving aspect of reporting the book, is that I had no inside access while the investigation was going. I had to do it all afterwards, which created a reporting and writing crunch. But the fact that I did get eventually get them was indispensable to what this book became.

Preet Bharara:

I mean, I’ll ask some questions about trying to get Mueller to talk, which maybe you’ll answer, maybe you won’t. How hard did you try? Did you send him candy? Did you write him love letters, poems? It would have been an amazing thing to get him to speak to you. How far?

Jeffrey Toobin:

You see when I wrote a profile of you in the New Yorker, it was the love letters and the candy that got me to talk to you.

Preet Bharara:

And you followed me around.

Jeffrey Toobin:

I always do that now. No, I was really straightforward with Mueller. I sent him repeated emails. And perhaps more importantly, I had intermediaries who I knew were in regular contact with him. And people who were relatively favorably disposed, or at least neutral towards me, who I was confident was passing along my interest. But I mean, one of the things we all know about Robert Mueller is that, he’s basically a straight forward person. I mean, there’s not a lot of artifice there. And it was quite clear to me that he was going to decide whether to talk to me or not. And my blandishments and candy were not going to make any difference. I was straightforward and insistent, but also recognizing that he was going to do what he was going to do.

Preet Bharara:

What about on the president’s side, did you talk to a lot of the folks on the president’s legal team?

Jeffrey Toobin:

Oh, yeah. That was really fun because, like Jay Sekulow, for example, is someone I have known and covered for many years. My first book about the Supreme Court, The Nine has a whole chapter about Jay Sekulow. And a lot of people don’t know that he has a very serious and interesting record as a Supreme Court advocate on freedom of religion and freedom of speech cases. And Jay is also an incredible character with a deeply bizarre and interesting personal story. So, I’ve known Jay for a long time. I wrote a profile of Rudy Giuliani during the investigation. I had met him on and off. But I had a lot of contact with him during the investigation. And Rudy, was as you know, a highly accessible to journalists during the investigation.

Preet Bharara:

Highly accessible is one way to put it.

Jeffrey Toobin:

Yeah, accessible is one way to put it. And I was fairly close to an interview with Trump about all this, but then the pandemic made it impossible. So, I did not get to talk to the president himself. I talked to a lot of people around him. But one of the many frustrations that pandemic caused, and obviously I don’t want to overstate its impact on me as opposed to the life and death matters for others, but that it just swept away that possibility, the pandemic.

Preet Bharara:

Did Rudy Giuliani ever butt dial you?

Jeffrey Toobin:

He did not. He did not. Although, I mean-

Preet Bharara:

By the way just to make clear that I asked that question because there is a track record of his doing that with journalists.

Jeffrey Toobin:

Yeah. And not just once, several… No, he never butt dialed. It was interesting. I spent a lot of time with him in the cigar bar at the top of 666 Fifth Avenue, which is like his headquarters now. And to see him manipulating his phone, he does have, like a lot of people of that generation, they’re still not fully conversant with the cell phone technology. And it didn’t surprise me that of all people, he was the one who had a little trouble with it.

Preet Bharara:

You talked to John Dowd?

Jeffrey Toobin:

Off and on. John Dowd is a real character, too. John Dowd, mostly he would yell at me. That was what the interviews consisted of. John, is an interesting character. Again, one of the advantages I suppose of doing this for a long time is that, you tend to cross paths with the same people over and over again. I had a brief dealing… Well, actually, no, it’s in the Eastern District of New York where I used to be an assistant US attorney. That was where the Pete Rose investigation of this gambling on baseball. And Dowd did the investigation for Major League Baseball of Rose. And it’s something he’s very still involved with and proud of, understandably. And we had talked about that. But he’s somewhat unusual, particularly in the Washington, New York access of lawyers. He’s a very serious political conservative.

Jeffrey Toobin:

I mean, most lawyers, I think you’d agree in New York, just like most people in New York and Washington DC are Democrats. He’s a real conservative. And so, he has a lot of complaints about the mainstream media of which I am apart. And so, my conversations with him often consisted of him yelling at me, but also providing interesting information in the course of that.

Preet Bharara:

What about some of the other people, I want to talk a little more about the personnel, and then we’ll get to some of the critiques that you’ve made about the Mueller investigation and how it turned out. On the special counsel’s team there’s a gentleman by the name of Andrew Weissmann, who was a guest of the Stay Tuned Podcast in the last week or two, where he denied that he was a pit bull.

Andrew Weissman:

I don’t really think of myself as a pit bull. But I have to say one thing that’s useful about that is it’s really useful for defense counsel and witnesses to think you are a pit bull, even if you’re not. Because it’s useful for them to think that, you’re going to be over the top and aggressive and completely on top of the facts.

Preet Bharara:

Is he a pit bull?

Jeffrey Toobin:

He’s a total pit bull. And I say this with admiration. Andrew and I were colleagues in the Eastern District of New York. We were not close friends or anything, but we certainly knew each other. And one of the things about being an assistant US attorney, that I think is actually a good thing, is that we are interchangeable. That some of us are better at the job than each other. But by and large, there is I think among federal prosecutors a basic level of competence. And Andrew was always different. Andrew was a high profile assistant US attorney, which is not something that’s all that common. And he was hated by the defense bar in a way that most of US are not. I mean, obviously defense lawyers have complaints about individual issues, but Andrew had this ability to rub people the wrong way.

Jeffrey Toobin:

And I write about this in the book, there was this joke that went around the New York criminal defense bar. Andrew was named one of the lawyers on the Enron investigation. He was one of the special prosecutors in that case. And he was named shortly after one of, early in the investigation, one of the executives at Enron committed suicide. And the word around all the defense lawyers in New York was they’re now going to be more suicides, because Andrew was so difficult and so aggressive as a prosecutor. And I think by and large, that’s not a bad thing. But there is something about Andrew that rubs people the wrong way. And he’s a tough, tough prosecutor. And that had effects in the Mueller investigation.

Preet Bharara:

How so? Put aside adversaries for a moment, was he a good fit within the team?

Jeffrey Toobin:

I think he was, but he was in the more aggressive camp in the team. Just, he was responsible for the Manafort investigation. That he was the team leader in the Manafort investigation. If you recall, there were two Manafort indictments, one in the Eastern District of Virginia and one in Washington, DC. He was going to try the Washington case, but that case fled out. But I think, one thing that’s important to say about Andrew is that there had been a Manafort investigation percolating around the justice department for years relating to his activities in Ukraine, in terms of failure to register, bank fraud, tax fraud.

Jeffrey Toobin:

And Preet, as you know, it is sometimes the case that investigations linger and wither and they don’t get resolved. And Andrew, who is nothing, if not incredibly energetic and industrious, within weeks of getting on the Mueller team had pulled together the Manafort investigation, and got a search warrant for Manafort’s home in Alexandria, and then later an indictment. And that rubbed some people in the main justice, the wrong way, because they’re like, “Hey, that’s our investigation.” But it was characteristic of Andrew, and I think characteristic of his skill that he got that investigation back on track in a matter of weeks after it had been lingering literally for years.

Preet Bharara:

By your count, how many angry Democrats were on the Mueller team, that is the phrase that Trump used to use to describe that team.

President Donald Trump:

These people have the biggest conflicts of interest I’ve ever seen. They are Democrats. In all fairness, Bob Mueller worked for Obama for eight years.

Jeffrey Toobin:

There are many reasons to make fun and criticize and mock and impeach Donald Trump. But the fact that there were… It’s in the book, it’s either 13 or 18 of the prosecutors had given to Democrats. That’s not nothing. And that’s not, I mean, this is a problem with special counsel, independent counsel investigations. One of the great values as you know better than I know, of the US attorney’s office, is that you have a broad range of crimes to investigate, and you have limited resources. And the people by and large are apolitical in their orientation because they tend to, the job of assistant US attorney, unlike US attorney is a career job. It’s not a job that changes when the presidency changes.

Jeffrey Toobin:

Special counsel investigations, they attract people who are interested in investigating that particular president. When I was a prosecutor in the Walsh investigation of Iran contract, it was almost all Democrats. I wrote about and wrote a book about the Starr investigation, including some of the very conservative, very outspoken people who were part of that staff. It is true that Mueller attracted lots of people who had given money to Democrats.

Preet Bharara:

It’s a self selecting group.

Jeffrey Toobin:

It’s self-selecting in ways that US attorney’s offices are not self-selecting.

Preet Bharara:

So, what do you do about that? I guess, it’s not a crazy observation, and I agree with that, but then people will point out that when you’re trying to staff an office like that, it’s actually improper to make inquiries about political giving and political affiliation. So, how do you thread that needle?

Jeffrey Toobin:

It’s a very hard problem. And I don’t have a particular solution. As you point out, you’re not allowed to ask those sorts of questions, who you voted for, who you gave money to. The fact is when you are doing an investigation in New York, most lawyers, most people are Democrats, and that’s just the nature of the jurisdiction. And here’s something that I think you’ll appreciate since you were a career prosecutor at one point. The fact that they were all career prosecutors or virtually all, was more important than the fact that they were Democratic donors. That there are certain cultural norms, certain ways of behaving that almost to a fault, the Mueller investigation displayed, that actually were more important in how they conducted themselves than the fact that they gave money to Hillary Clinton on occasion.

Preet Bharara:

I want to ask you about Rod Rosenstein and his role in all this, as you write about. But in introducing that subject, I want to talk about the opening few pages of your book. I don’t know if it’s the preface or the introduction, which it’s a small story, but it sticks with me, because it goes to a problem that Donald Trump has. And that is a pathological inability to not lie, pathological inability to tell the truth. And it’s this simple story about which the president just lies. And it’s the occasion of May 16th, 2017 when Bob Mueller goes to the Oval Office to meet with the President. And Rod Rosenstein, the deputy attorney general is present.

Preet Bharara:

And the only reason why Bob Mueller is there, and it’s on the eve of his being appointed the special counsel, he’s there at Rod Rosenstein’s request, I believe to provide some advice about who the next FBI director should be. It had been a few days since Jim Comey had been fired by Mueller, had been the FBI director for 10 years, then another two years, that’s 12 years total. And the reason he was there was to give some counsel. He couldn’t have asked for his old job back because it was contrary to law. And yet the President of United States, again and again, and again said of Bob Mueller, “He came to beg for his old job back.” And one of the reasons the President said that over and over again was to suggest that Bob Mueller had a conflict. And so, couldn’t have served properly as a special counsel, if hours earlier, he was on his knees begging like a dog, as the Trump sometimes says about people, for his old job back.

President Donald Trump:

Robert Mueller should have never been chosen because he wanted the FBI job and he didn’t get it. And the next day he was picked as special counsel. So, you tell somebody, “I’m sorry, you can’t have the job.”

Preet Bharara:

So, the president lies, a, I want to know what you think about that. And b, I want to know if you think that Rod Rosenstein should have been yelling and hollering about those lies while he remained a member of the justice department, because he was present and knew the truth.

Jeffrey Toobin:

As you point out, the opening scene to me was this irresistible tableau of the two protagonists, their one and only face to face meeting.

Preet Bharara:

It’s like the movie Heat.

Jeffrey Toobin:

It’s when Pachino-

Preet Bharara:

And De Niro.

Jeffrey Toobin:

… face off. Yes.

Speaker 7:

I don’t have to do anything else.

Speaker 8:

Neither do I.

Speaker 7:

I don’t much want to either.

Speaker 8:

Neither do I.

Jeffrey Toobin:

And it was an opportunity for me to contrast their personalities and backgrounds. And also to point out some of the similarities between the two of them. They’re almost exactly the same age. Mueller is two years older than Trump. They both were raised in considerable wealth on the East Coast. Trump in New York City, Mueller on the main line of Philadelphia. And they both went to Ivy League schools, Princeton for Mueller, Penn for Trump. But their lives could not have differed, and their personalities and values could not have deferred more. I mean, here you have someone who’s devoted his entire life with very few exceptions when he was in the private sector to public service, someone who is reticent about his himself and his personality, someone who is, I think pathologically honest in how he engages the world. With Trump, who is someone who has done nothing except do things for his own private gain. And as you point out, just lies compulsively. So, they are similar in some ways and different in many others.

Jeffrey Toobin:

At that meeting, as you point out, there is absolutely no dispute about why Mueller was there. And yet, as I point out in the book, Trump lied about it. Trump lied about it constantly. I think you point out Rod Rosenstein’s role. And I find Rosenstein a blandly fascinating character.

Preet Bharara:

Blandly fascinating.

Jeffrey Toobin:

One of the things, I have a description of Rosenstein in the book where he almost is an invisible person. He’s not tall. He’s not short. He’s not handsome. He’s not ugly. He looks like a Washington every man. He wears the button down blue Oxford shirts. He wears the red tie, the uniform of Washington. But one of the things you realized about Rod Rosenstein is he is a bureaucratic survivor. As you know better, again, better than most, when the presidency changes, particularly from one party to another one thing that happens is that the new president gets to name the new US attorneys. But Rod Rosenstein was the only US attorney in the United States named by George W. Bush, whom Barack Obama kept in office.

Preet Bharara:

Also Patrick Fitzgerald, perhaps.

Jeffrey Toobin:

But very briefly, I think. I mean, Rosenstein stayed, I think for the whole tenure of Obama.

Preet Bharara:

True. And then the third president.

Jeffrey Toobin:

And well, he got promoted to be deputy attorney general by Trump. But Rosenstein is someone who is, I think an ethical and decent person, who was thrust into extraordinary circumstances and he had to make compromises, and he made compromises. And the main compromise he made was continuing to work for Donald Trump, even though Trump was obviously lying about many things, corrupt in many respects. There’s one incident that I talk about in the book that I think was revealing. And again, as US attorney, you will certainly appreciate this.

Jeffrey Toobin:

One of the great thing access I had was to this magnificent website called the Trump Twitter Archive. And Trump tweets so much and they pass in such a blur. It’s easy to forget how outrageous and ridiculous many of them are. But because of this archive, I was able to look through all the tweets in real time. And there was one tweet in early or late 2018, right before the midterm elections, about two Republican Congressman Collins from New York. And I forgot the guy’s name in Los Angeles or San Diego. And the Department of Justice had brought indictments against both of them. And Trump tweeted, “Nice job, Jeff Sessions, losing us to safe seats because of your indictment.”

Preet Bharara:

I remember that tweet very well. I’ve written about it.

Jeffrey Toobin:

I think we talked to… I think it’s in your book. And I think we’ve talked about it. And it was such an egregious abuse of what the justice department is supposed to be, and the values the justice department is supposed to hold. And Rosenstein, who understands those values, actually assembled his staff and said, “Look, this is not who we are. And ignore that tweet.” But that was his boss. And he did do some things for Trump. And I think that took moral and legal and ethical compromises. And that’s why I find Rosenstein a particularly interesting figure, because he’s not all one way. He also protected Robert Mueller from getting fired. He also named Robert Mueller who was a very good choice.

Preet Bharara:

He also did stand up to the president in ways that some people want it. He also didn’t recuse himself. He was a guest on the Words Matter Podcast, that is now part of the CAFE family, our family, hosted by Katie Barlow and Joe Lockhart. And he was asked about the recusal. I mean, maybe not that many people care about it. Because Rod Rosenstein had a role in some fashion of the firing of Jim Comey. He wrote that memo.

Jeffrey Toobin:

He was a fact witness, as we say.

Speaker 9:

Do you consider recusing yourself? And if you didn’t, why didn’t you?

Rob Rosenstein:

Well, I certainly considered it in the sense that I talked with the ethics expert on my staff about whether recusal was warranted and the determination was that it was not. Now, in theory, you can always recuse as a discretionary matter. You can decide that you don’t want to deal with the issue. And so, you can step out. But I felt that that would be irresponsible on my part, no matter who wound up in the line of fire for this, it was going to be very unpleasant. And so, I thought it’d be irresponsible to me to step out unless there were a legal justification for me to do it. So, once I discussed with the ethics expert and determined that there was no requirement for recusal, I did not recuse.

Preet Bharara:

And you and I would talk about this in the hallways of CNN, how come that guy is not recusing himself? How come he’s not being asked to recuse himself? Because ordinarily democratic senators would have lost their minds. And in part, our theory, I think what really is my theory was, they thought he was going to protect Mueller. And so, they permitted him some latitude. What do you think?

Jeffrey Toobin:

Totally agree, totally agree. Under different circumstances, in a different political environment, someone who was that close to the facts of the case, someone who was interviewed in the investigation by Mueller staff would certainly have been expected to recuse himself. But Democrats figured, I think correctly that we could do a lot worse than Rod Rosenstein. And I think, it does speak to Rosenstein’s integrity, that he did allow Mueller to pursue his investigation and expand his investigation in certain ways. But as we have discussed, I always thought that the recusal issue was a serious one. And like a lot of things, it just got swallowed up by time.

Preet Bharara:

So, the overall Mueller investigation, you’ve had some critical things to say about it and look at it, I don’t know what verb you want to use, it fizzled out. And I want to quote something from your book and then ask you to talk about it. And this relates to that weird non conclusion in the final Mueller report. And you said, “Nothing in Mueller’s mandate required him to reach such a baffling and inconclusive conclusion about the most important issue before him. He was a prosecutor. A prosecutor’s job is to determine whether the evidence is sufficient to bring cases. In this unique situation, the office of legal counsel opinion prohibited Mueller from actually bringing a case, but,” you write, “Muller gave Trump an unnecessary second benefit from the OLC opinion. The first benefit was not prosecuting him. That was mandatory. But the second benefit was not even saying whether the evidence supported a prosecution. That simply was a gift to Trump.”

Preet Bharara:

In fairness to Mueller, he writes in the report and otherwise, I think he has testified, that the reason he didn’t make a blanket statement about whether or not the president had committed a crime, putting aside whether or not he was prosecutable, was it would be unfair because since he couldn’t be charged, he couldn’t have his day in court to clear his name. What do you make of that defense?

Jeffrey Toobin:

I don’t buy it. And I thought he was indicative of… This is why I like being a journalist, is because things are so often the opposite of what they appear. Mueller has been criticized endlessly by Trump and Trump’s allies for his excessive zeal. But the problem with the investigation was insufficient zeal. That he tied himself in knots to figure out a way not to say what his report led, I think any reasonable reader to conclude, which was that Trump committed the crime of obstruction of justice. And yes, it is true that the OLC opinion said Mueller couldn’t prosecute him. And I happen to think that OLC opinion is correct. I don’t think under our constitutional system that a sitting president can or should be indicted.

Jeffrey Toobin:

But that doesn’t mean that a prosecutor can’t tell the truth about what he saw. And again, what makes this poignant and interesting is that Mueller did this incredibly skillful, accurate, in depth investigation of the obstruction of justice case, particularly when it comes to the firing of Comey. The instruction to Comey to go easy on Michael Flynn, the Trump’s instruction to Don McGahn, The White House counsel, to get Mueller fired, then his instruction to McGahn to lie about that exchange. All of that is to me obstruction of justice on a scale way bigger than Bill Clinton and Monica Lewinsky, way bigger than Richard Nixon and the Watergate coverup. But because he tied himself in knots about his inability to say what the evidence directed him to say, it led to this baffling not innocent, but not guilty. That I think was just, he didn’t do the job that he should have done.

Preet Bharara:

But why is that? So, sometimes motivations are important. You’re not saying, I don’t think that he pulled punches and he didn’t do the job that you think he should have done because he was trying to protect the president. He was behaving, I think in a way he thought was limited and honorable. Is that fair?

Jeffrey Toobin:

Totally. Absolutely. One of the things about Mueller is he has spent his entire career starting in the Marines, which is a major, major influence on him, in hierarchical organizations, where there is a deference paid to authority, even if you the subordinate might not agree with the superiors orders. And you saw that throughout the Mueller investigation in the refusal to issue a subpoena, in this bizarre non conclusion to the report, in his failure to take on Bill Barr who was distorting his work right and left. Mueller believes in the chain of command. And he got in his head as with the assistance of his staff, that to go further than simply summarizing the evidence and drawing what I thought was the obvious conclusion from the evidence was going too far and was somehow unfair to Trump, because Trump couldn’t have his day in court. I thought that was simply not necessary. But I don’t think it was any kind of corrupt or bad motives on the part of Mueller. I think it was just a mistake born out of his character in history.

Preet Bharara:

So, if Mueller was doing it because he thought it was the honorable thing to do, would it have been better for him to do something that he thought was not honorable? Or is it your view that he misperceived what the right and honorable thing to do would be, that his own view of it was naive?

Jeffrey Toobin:

Yes. His own view of it was naive. One consequence as a journalist, I had a perverse admiration for the total absence of leaks from the Mueller operation while the investigation was pending. I mean, they did not engage with the press at all. I mean, there was just no give and take at all. And it was admirable in a way, but I think it also led to a kind of a moral vanity on the part of the Mueller office. So, we are better than these people who are in the political scrum every day, including the journalists. And I think it led them to a tunnel vision that they were not as engaged in the real world as they should have been. Again, I don’t think that is something that comes out of bad motives, but it comes at some cost. And I think the bizarre and nearly incomprehensible conclusion of the Mueller report on the question of obstruction of justice was the most glaring illustration of that.

Preet Bharara:

Was there a difference of opinion within the team? Did some people want there to be a flat statement that this conduct was in fact obstruction and violated the law?

Jeffrey Toobin:

To be honest, I don’t know that for a fact. There’s certainly, Andrew Weissmann and his colleague, Jeannie Ray, who was the head of the Russia investigation, were certainly more aggressive in general than Jim Quarrels and Andrew Goldstein, your former colleague in the Southern District, who did The White House investigation. I mean, that was a temperamental difference between the two. But look, this was a Mueller decision. It wasn’t a staff decision. And I think he was the person who called the shots there.

Preet Bharara:

How would the world have been different if everything else the same, meticulous examination of the President’s conduct and the conduct of people around him, and all those 10 or 11 incidents of potential obstruction laid out in the report as they are, but Muller did what you think maybe would have been better. And he had a paragraph where he flatly States, “Our conclusion is this violates law. And, but for the OLC opinion, the president would be chargeable.” And he made a flat statement about it. What would be different?

Jeffrey Toobin:

Maybe nothing. I mean, I don’t want to… I mean, look, we haven’t talked about impeachment yet. One of the touchstones of the Trump era in American politics is that the Republican party has become like a call. There was no serious evaluation of the evidence against Trump in the impeachment proceeding regarding Ukraine. And I do believe that, if Mueller had been more straightforward about obstruction of justice, impeachment might well have hit Congress before the Ukraine matter happened. But would Trump have been forced from office? Would there have been two thirds votes for him in the Senate? Or even attempt to remove him in the Senate. I doubt it. I doubt it. But you never know. And that doesn’t mean Mueller shouldn’t have done the right thing. He should’ve done the right thing.

Preet Bharara:

Should Mueller have closed up shop as early as he did? It seems like every other thing has been undone by Bill Barr, whether you’re talking about Roger Stone, or are you talking about Michael Flynn, that wouldn’t have been possible if Mueller kept his shop open, right?

Jeffrey Toobin:

Not necessarily, I mean, Robert Mueller was a subordinate. Robert Mueller, he wasn’t an independent counsel. He was a special counsel and-

Preet Bharara:

But he would not have been as frictionless. They would have had to be processed. They would’ve had to be disclosure if Barr was going to overrule Mueller on various things. Right?

Jeffrey Toobin:

You know what? Barr was going to do, what Barr was going to do. I mean, one of the just shocking, shocking things about the last year has been the craven political behavior of Barr. I don’t really believe that had Barr stayed in office, Barr would not have tried to reduce Roger Stone sentence, would not have tried to undo Michael Flynn’s guilty plea and would not have ordered the Connecticut US Attorney, John Durham, to do basically a hatchet job on the origins of the investigation.

Jeffrey Toobin:

So, I mean, I don’t think, to me the question about what Mueller should have done goes to the beginning of the investigation, not the end. By that, I mean, and this is a closer question, but should he have investigated Trump’s finances? Why has Donald Trump had this incredible solicitude for Vladimir Putin? Why has he failed to confront Russia over and over again? Is there something in his financial history other than the abortive attempt to build a Trump Tower in Moscow in 2015, which Mueller did investigate, is there something more there? Mueller decided not to investigate that. I’m not sure every prosecutor would have made the same decision, but at least I think it’s a defensible decision. That to me is a much more important question than why he didn’t extend the investigation longer. I think he was done. I really think he was done.

Preet Bharara:

You write books that often get made into TV shows and movies. Can someone make a movie out of this, given that neither investigation really went anywhere?

Jeffrey Toobin:

They’re trying already, I’m pleased to say that-

Preet Bharara:

Have you sold the movie rights?

Jeffrey Toobin:

I certainly have. I certainly have. And there are people actively at work trying to do it, but it’s not easy. One way to approach it is, Robert Mueller was like a man out of time. I mean, as I say in the book, it’s easy and not entirely wrong to see the conflict between Mueller and Trump as good versus evil. But the better analogy is old versus new. Mueller just had old fashion ideas about how people conduct themselves, how prosecutors conduct themselves, how the government should work. And he came up against people like Donald Trump, like William Barr, who were willing to just violate every norm and perhaps law under the sun. And I think, Mueller was not prepared to deal with that, intellectually, emotionally, politically. And that’s an interesting piece of dramatic tension.

Preet Bharara:

I don’t know if this was your hypothetical, but it may be one that we talked about. Someone once suggested, imagine if you flipped the two roles, that Bob Mueller was the FBI director in 2016, he wouldn’t have given that press conference about Hillary Clinton, probably wouldn’t have sent that letter on the eve of the election. He would have kept his mouth shut. And also imagine Jim Comey, someone with that personality as the special counsel, probably would have been more likely to do what you say should have been done, which is make flat statements about criminality, probably also would have been less tight-lipped and engaged in more strong defenses of their officer’s work. Do you think the world would be different if the personalities of those two roles were switched?

Jeffrey Toobin:

I love you Preet. That’s a nuts question. What the hell do I know? I don’t know. It’s like, well, if the whole thing took place in Uruguay instead of the United States, would it be different? Yes, it would be different. I don’t know.

Preet Bharara:

All right. All right. I thought it was interesting to solve question.

Jeffrey Toobin:

It is interesting.

Preet Bharara:

Look, I’ve been home detained for too long, [crosstalk 00:50:50] crazy.

Jeffrey Toobin:

I know. That’s an okay thing.

Preet Bharara:

I’m conjuring up these crazy things. I want to talk about impeachment a little bit. And the question I have for you is when you researched the book, I imagine you talked to people in the Congress. Were people on the Republican side, at least with you on background or off the record, more willing to concede that whether or not it was something that he should be convicted for in the Senate, that the conduct of Donald Trump and connection with Ukraine was just terrible and awful, or did they not concede that?

Jeffrey Toobin:

Absolutely not. Absolutely not. Well, let me put it this way, in the House of Representatives, absolutely not. The degree to which The House Republicans have become a Trump cult cannot be overstated. I mean, there are basically no more moderate Republicans left in the entire United States House of Representatives. And you would talk to them about this and you would get the procession of daily talking points, whether it was Trump had other interests in Ukraine. He wasn’t just interested in getting dirt on Joe Biden. Or what you heard in the trial that he was the commander in chief and the president, and he’s allowed to have these conversations.

Jeffrey Toobin:

In the Senate, it was somewhat different in the sense that they would recognize, well, that he probably shouldn’t have phrased the call that way, but The House should have done a better investigation. This is just a political vendetta against Trump. The great moment of the Nixon impeachment was the seven Republicans on the House Judiciary Committee who voted for the articles of impeachment against Nixon. Dedicated serious conservatives, who said, this is just not acceptable behavior in the president. You saw almost none of that. No, almost no crossover in the Clinton impeachment, and really close to zero. I mean, just Mitt Romney in the Senate and really no one in the House of Representatives. And I think it’s indicative of where our politics are now, that the polarization and the hostility between the political parties is so gray, that what to me was flagrant misconduct on the part of Trump, and in many respects, worse with regard to Ukraine than with regard to Russia, it was very easy for them to just blow it up.

Preet Bharara:

You write about some of the players in impeachment, obviously in the book, tell folks who you thought comported themselves well, and who did not.

Jeffrey Toobin:

I thought Adam Schiff did a spectacular job. I mean, Adam Schiff has been in Congress since 2000, and was really a seriously obscure member of Congress until this happened. He was the kind of person Nancy Pelosi could ask to handle the impeachment of a federal judge. A job that was a tremendous amount of work, led to no campaign contributions, no media attention. But something he did, just shifted because he was a former prosecutor and he thought it was the right the thing to do. But someone who rose to levels of eloquence that frankly, very unusual in Washington. I thought was really pretty remarkable. And I thought, someone who really zeroed in on the true nature of the misbehavior here very early, both stories, both the Russia story and the Ukraine story. And I think comported himself with great dignity, not withstanding the fact that he was dealing with horrendous dental problems during the Senate trial, which is something I spell out in the book, which any of us who have had dental problems know it’s hard to concentrate on anything else.

Jeffrey Toobin:

As for other people who handles themselves particularly well, one of the stories that in the book that I tell that I think is a very revealing and interesting one is the five new members of Congress, military veterans, all who took Republican seats, several in Trump districts. After the Ukraine story broke, they had been very skeptical about his impeachment, but they wrote an op-ed piece in The Washington Post. And I talk about these five members of Congress and how they came to believe at considerable political risks to themselves, that Trump had to be impeached. I thought they were really models of what we wanted in public servants. I was impressed.

Preet Bharara:

Now, here’s an ultimate question. It’s my assessment, and I have biases like everyone does, but the lawyers on the special counsel’s team and Adam Schiff in The House, that the lawyers arrayed against the president, I thought had better scale and craft, try not to be ideological or political, but better skill and craft than a lot of the lawyers on the president’s side, which included no small number of what I would call blowhards. I also happen to believe that the president engaged in very bad conduct in both things that we’ve been talking about. So, given that equation, if you’ll accept it for a moment, how did the president get away with everything?

Jeffrey Toobin:

Because he owns the Republican Party. I mean, I think the evidence was overwhelming against him and largely irrelevant. The Republicans were just not interested in hearing the evidence against Trump. And the skill of the lawyers while interesting to those of us in the trade, I think was a really minor factor in the outcome. I don’t think the senators by and large were listening.

Preet Bharara:

They didn’t like the case, [crosstalk 00:56:49] the juries. It doesn’t matter how good the lawyer, they don’t like the case. Why did you bring the case?

Jeffrey Toobin:

Yeah. And that’s what happened here. And I think it’s really, as simple as that. I don’t think the evidence in the trial mattered to 51 of the 53 Republicans in the Senate, maybe Susan Collins and maybe Lisa Murkowski, had some second thoughts. Mitt Romney, obviously took the evidence very seriously. But the rest of them, they weren’t going to pick a fight with Donald Trump, when it was quite clear they were never going to be 67 votes anyway. And I think that’s the beginning and end of the story.

Preet Bharara:

Have you seen a more bizarre case with all its twists and turns and still not concluded, than the case against Michael Flynn?

Jeffrey Toobin:

It’s surreal. I mean, you’ve been around the criminal justice system before.

Preet Bharara:

I have never seen anything like it.

Jeffrey Toobin:

And the federal [inaudible 00:57:40], the idea that the Attorney General of the United States would direct the justice department move to overturn a criminal conviction where the guy has pled guilty. When does that ever happen? When does that ever happen? And when he moves to lower the sentence that where had the justice department has already said the sentence should be X and he overrules the trial team. I thought when Barr testified, he was asked a very good question, “Well, what other cases have you asked to have overturned? What other cases have you asked to have the sentence reduced?” And the answer of course is none. This was solely a mission on behalf of the president.

Jeffrey Toobin:

And you’ve much more prominent, much more extensive career in the justice department than I did, but I was in the justice department. And there are certain values there. There are certain norms of behavior that people take a lot of pride in. Yes, everybody knows the attorney general is a member of the cabinet. Everybody knows that US attorneys are appointed by the president and confirmed by the Senate and are political appointees. But the culture of the place is that we don’t swing back and forth, especially when it comes to criminal prosecution, depending on which party is in power. And this was such a grotesque abuse, which as you say is continuum.

Preet Bharara:

And then it gets more bizarre because the district judge in the case decides he’s not going to just go ahead and quickly dismiss the matter, even though the government Is asking for it. He hired a lawyer, John Gleason, who was a judge for a long time in the Eastern District. And then it goes to the DC Circuit and they say terrible things about the district court judge. Then he asks for the entire court and unbanked proceeding to consider it. They’re doing that, I think next week. Where do you think this ends up?

Jeffrey Toobin:

What I think is going to happen is the full DC Circuit, which is a seven to four democratic majority will not dismiss the case. They will send the case back to Judge Sullivan, and he will hold a hearing. And I think, ultimately, he will dismiss the case, but he will do it on his terms.

Preet Bharara:

Not after some inquiry.

Jeffrey Toobin:

Exactly. And I mean, again, not to get too far into the weeds, but this rule about dismissing cases, it says with leave of the court, you can only dismiss a case, government with leave of the court. And I think that means with leave of the court. That means the judge has to have some role in the process. And the justice department position here has been that those words don’t mean anything.

Preet Bharara:

Can I ask you a question that I get asked a lot, and I’m going to ask a smarter guy than me? What happens, and I think this is the major concern that people have about the political state of the country, putting aside the pandemic, although they’re not unrelated, Donald Trump doesn’t accept the election results, and he’s like, “I’m not going.” What happens, Jeff Toobin?

Jeffrey Toobin:

Well, I mean, obviously that’s a question that we’re all thinking about a great deal, not to worm my way out of answering. I think most of it depends on what the state of the vote is in each state. If there is 350 electoral votes for Biden that seem clear, then I just think even this Republican Party says, you have to go. But if we’re talking about a few states here and there a Florida type situation, like in 2000, I think they fight it all the way. I think they fight. And I think Trump has a very good chance. Because I also wrote a book about the recount in 2000.

Jeffrey Toobin:

If this case goes to the House of Representatives, if the electoral college fails to resolve the case, it goes to the House of Representatives and each state votes as a delegation. It’s an election with 50 votes. And there are more states controlled by Republicans than Democrats in the House of Representatives, even though there are more overall Democrats. I think they’re aware of that. So, I think there is considerable possibility for really substantial ugliness unless Biden’s victory is just too substantial to allow that.

Preet Bharara:

What would be the circumstances in which the decision would be made by the Supreme Court?

Jeffrey Toobin:

Well, the decision in Bush v. Gore was whether to allow a recount to continue in the State of Florida. So, it was very specific about one state and one state’s vote counting process. It wasn’t about, now because that state had the dispositive number of electoral votes, it effectively decided the election.

Preet Bharara:

You could have a replay of that. Could you not? You could have two or three ballots… Yeah. You could have three states.

Jeffrey Toobin:

Absolutely.

Preet Bharara:

Florida, Pennsylvania, Wisconsin, or Ohio.

Jeffrey Toobin:

And the thing that I find particularly chilling, I just wrote something about this in the New Yorker, is that because there are so many mail in ballots, Trump doesn’t like mail in ballots, but they’re going to be a lot of mail in ballots. The states are not prepared or not even allowed in some certain stances to count them before election day. So, the vote count is going to extend past November 3rd. And there’s a primary in New York that’s unresolved because of the length it’s taken, from a June 23rd primary. That’s to me the real peril, is what happens during that period after November 3rd, when they’re still counting absentee votes and there’s no resolution. That to me is a very dangerous period.

Preet Bharara:

So, let’s end talking about the court, since we segue to that. One of the services you provide the public is breaking down complicated Supreme Court rulings and decisions. Explain for people who don’t know what to think, where John Roberts is on the court and what it means that he joined the liberals in a couple of significant cases at the end of the last term. How should people think about John Roberts? What do you think about him? What his trajectory is, has he changed? Is he changing things? Or just by nature of the dynamics in those particular cases, it looks that way, but he has stayed true to himself.

Jeffrey Toobin:

I think Roberts has changed. I really do. I mean, and we are dealing now with a question about what’s going on in John Roberts’ head. And so, I want to make clear that I am working from a base of knowledge, but I don’t have access to the inside of his head. So, this is it’s informed conjecture, but it’s conjecture. I think Roberts sees that Trump has just pushed too hard and pushed too far and is too lawless. When you look at his decisions in the census case where he said that the administration had acted improperly in trying to get a citizenship question on the census. When you look at his decision in the DACA case, where he said the administration had acted precipitously in revoking the consideration for the Dreamers that Obama has. And particularly, when you look at his decision in the abortion case where he voted to overturn the restrictive abortion laws in Louisiana. Yes, you can point to things in Robert’s past that suggest those results.

Jeffrey Toobin:

But I think something different is going on with Roberts. There is a certain kind of establishment Republican. It’s a small group. You see it in an extreme form in the Lincoln Project, who are doing all these devastating ads about Trump. These Republicans who come out of a very different tradition than Trump does, who were just appalled by the guy. I think Robert show signs of at least sympathy for him. Now, I don’t want to overstate it. John Roberts is still a conservative. He’s still going to vote with Alito, Thomas, Kavanaugh and Gorsuch most of the time. But he is susceptible to the arguments that Trump is just out of control and the Republican Party is out of control, much more than I thought he was. And it has very real significance.

Preet Bharara:

And where do you think Kavanaugh is on that spectrum?

Jeffrey Toobin:

Well, I think Kavanaugh has conflicting impulses at this point. I think, he is-

Preet Bharara:

He kind of owes the guy.

Jeffrey Toobin:

Well, he owes Trump, but he doesn’t want to be seen as a political hack. And I think he is someone who I would have said, well, it’s sort of John Roberts previous year. In Kavanaugh first year on the court, he voted with Roberts almost all the time. Those two were aligned. And I think that’s the kind of conservative Kavanaugh aspires to be. But I think he’s much more of a movement conservative in a way that Gorsuch clearly is. So, I think he is part… I mean, and all these big cases, he parted ways with Roberts. And I think that’s significant.

Preet Bharara:

You’ve written about the court for a long time. And you’ve written about, and specifically you’ve written about the way in which Thomas took his seat and that at least in the early years, and maybe even still that his outlook on the court was influenced by the difficulty of his confirmation and the anger that he felt about the way his confirmation process went. So, fast forward a few decades, and you have the same with Kavanaugh. Based on what you just said, I wonder if you think the Kavanaugh will be effected by the anger he must feel about his right or wrong, the anger he must feel about his confirmation and the anger that he displayed quite sharply at the confirmation hearing.

Justice Kavanaugh:

This whole two week effort has been a calculated and orchestrated political hit, fueled with a parent pent up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left wing opposition groups.

Preet Bharara:

Or is he going to let that go and try over time to be something like John Roberts?

Jeffrey Toobin:

I think it’s similar to Thomas, but different in some respects. Thomas was just enraged and determined to screw his adversaries. I mean, I don’t think it’s any more simple than that. I think Thomas just hates liberals and Democrats with an abiding passion, and every single day on the Supreme Court he is determined to screw them in every possible way. And that really hasn’t changed.

Jeffrey Toobin:

Kavanaugh is a little different. I think, Kavanaugh is very angry about how he was treated. I think he’s upset that he cannot appear in public because he was someone who liked appearing in public, like going to universities, like doing moot courts. He does not like the fact that he’s essentially a prisoner of the Supreme Court, because there’ll be protests wherever he goes. But he’s also someone who was really kind of a Washington insider and wants to be liked, and wants to be seen as something other than a political hack, in a way that Thomas doesn’t care about that at all. So, I think that those might pull him in slightly different directions. Kavanaugh’s vote is still a very predictable one and in the vast majority of cases.

Preet Bharara:

I believe you wrote about the relationship between Obama and Roberts. I think you described them as near perfect antagonists. How would you describe Trump, Roberts?

Jeffrey Toobin:

Well, the thing about Roberts and Obama is that they had so much in common. I mean, it’s not just that they both went to Harvard Law School, but they were both part of the Harvard Law Review, scholarly approach to law. People who-

Preet Bharara:

They both read the constitution.

Jeffrey Toobin:

They both read. And for example, books, right?

Preet Bharara:

For example, books. Yes.

Jeffrey Toobin:

That’s a thing that they both had in common. And so, I think politically, they were very different. I mean, John Roberts is a serious conservative, but I think saw in Obama a serious person who just came out very differently on most political and legal issues. John Roberts, the title he has is not Chief Justice of the Supreme Court, it’s Chief Justice of the United States. And Roberts takes that seriously. And Robert sees himself as the representative of the judicial branch. And when he hears Trump saying the judge is stupid or it’s an Obama judge, or it’s a Bush judge, the vulgarity and the simple mindedness and the cravenness with which Trump talks about the judiciary, really does rub Roberts the wrong way. Now, how many votes that actually shift? I would have said not many, but this year, maybe it has had some effect. But temperamentally and intellectually, Roberts and Trump could not be farther apart.

Preet Bharara:

There is a vacancy on the Supreme Court, even as late as September, October, November, given that there’s a lame duck session, does Trump fill it and will he be able to fill it?

Jeffrey Toobin:

Well, I’ve also spent time thinking and asking about that question. And the answer I get from people who are knowledgeable about such things is, there is at least a theoretical possibility that Mitch McConnell could do this in six to eight weeks. It would take essentially burning down the Senate. I mean-

Preet Bharara:

Imagine my question in this scenario in which there’s a vacancy, then the election happens and Biden wins, and the Senate is going to flip in January. So, you have an incoming Democratic majority. In that circumstance, McConnell is going to try, is he not?

Jeffrey Toobin:

I don’t see a scenario where McConnell doesn’t try. I mean, McConnell for reasons that are at least somewhat mysterious is obsessed with the federal judiciary and the Supreme Court in particular, and has made it his mission to remake it with Donald Trump. And so, the opportunity, particularly if it’s Ruth Ginsburg, one of the liberals, who’s obviously not well, and it’s a possibility to leave the court, is something that I think he’s willing to take all kinds of political hell to do. He doesn’t have a lot of room for error. There are only 53 Republicans in the Senate. And given what the Senate did to Obama and to Merrick Garland. And keeping in mind that Antonin Scalia died on February 13th, 2016, and they didn’t allow Obama to fill that seat for 11 months. To jam through a nominee at this point, would be hypocrisy of such a gigantic level that I think there are at least some senators who will have second thoughts.

Jeffrey Toobin:

McConnell has had near total control of his conference throughout his tenure. I think he would probably be able to get it through. But it’s not a done deal. There will be people there who at least have some misgivings, but like Susan Collins is always having misgivings and concerns and second thoughts, but always winds up voting with McConnell. Anyway, I suspect that would be the approach also.

Preet Bharara:

So, I’m going to resist the temptation to go hours, which is sometimes what I want to do with someone like you, and while we’re all confined at home. But I will let you go.

Jeffrey Toobin:

All right, pal.

Preet Bharara:

Thank you, Jeff Toobin for spending some time with us. Congratulations on the book, True Crimes and Misdemeanors: The Investigation of Donald Trump. I wish you great success.

Jeffrey Toobin:

Thanks, Preet.

Preet Bharara:

Take care, buddy. My conversation with Jeffrey Toobin, continues for members of the CAFE Insider community. In this special bonus, Jeff and I discuss his craft and what it takes to tell a compelling story. Consider joining the Insider community. You can try it out for free for two weeks at cafe.com/insider. Insiders, get bonus, stay tuned content, the exclusive weekly podcast I cohost with Anne Milgram, the United Security Podcast, co-Hosted by Lisa Monaco and Ken Wainstein, recordings of weekly notes by Ellie Hoenig and me, and more. Again, to get a free two week trial head to cafe.com/insider, that’s cafe.com/insider.

Preet Bharara:

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Jeffrey Toobin. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics and justice. Tweet them to me at Preet Bharara, with a hashtag ask Preet, 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 [email protected]

Preet Bharara:

Stay Tuned is presented by CAFE. The executive producer is Tamara Sepper. The senior audio producer is David Tatasciore. And the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Calvin Lord, Noah Azulai and Geoff Isenman. Our music is by Andrew Dost. I’m Preet Bharara. Stay tuned.