Preet Bharara:

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

Elie Honig:

While we do have a long history of presidents to varying extents undermining, and at times obstructing these investigations, what Donald Trump is doing right now is different in kind from everything that’s come before. The notion of, there will be no inward looking investigation, period, and I will seek retribution, hence When You Come At The King.

Preet Bharara:

That’s Elie Honig, my former colleague at the Southern District of New York, and my current colleague here at Stay Tuned, where he writes a weekly column. His latest book is When You Come At The King, inside DOJ’s Pursuit of the President from Nixon to Trump. It’s a riveting account of something you may have heard of before, the special counsel’s office. Through dozens of interviews and first hand accounts, Elie tells the story of six modern special counsel cases and whether the increasingly popular office best serves our mission of justice.

That’s coming up. Stay Tuned. Just what is a special counsel and are independent investigations all they’re cracked up to be? Elie Honig joins me to discuss his new book, When You Come At The King. Elie Honig, my friend. Welcome back to the show.

Elie Honig:

Thank you for having me, Preet. It is always a joy to join you, even though we talk all the time offline, there’s something special about being the guest on Stay Tuned. So I do appreciate you having me,

Preet Bharara:

The guest. So your book is When You Come At The King, Inside DOJ’s Pursuit of the President from Nixon to Trump. Good topic, always timely, complicated, difficult, rich, nuanced, et cetera. And you’ve mentioned in the book this sort of pop culture reference that everybody thinks of with respect to the phrase When You Come At The King, but then you note parenthetically nods to other folks from literature, who made similar remarks or sentiments. Could you describe to us the origin of When You Come At The King and why that’s the title of your book?

Elie Honig:

So the first time I ever heard that expression, and probably a lot of people in the modern era, and the inspiration for the title comes from The Wire, the great HBO TV show about Baltimore cops and gangsters. And there’s a famous scene where Omar, played by the late great Michael K. Williams says, “You come at the king, you best not miss.” The origins of that, one of my researchers found goes back to hundreds of years. Machiavelli used it. Ralph Waldo Emerson used it, and it’s more and more used in pop culture. I’ve seen Charles Barkley use it recently in the context of basketball.

The reason I chose that as the title… I didn’t have that title when I started the book. I knew exactly what I wanted to write about, but I went into it with… You don’t always have your title when you start your books.

I don’t think I’ve had the title for any of them when I started, but there’s really two reasons I chose this title, one, and you know this, Preet, because when you’re doing a real trial, like a case, it feels like life or death for you as the prosecutor, right? You’re so invested in it, you feel like the balance of the world sits in what happens in this trial. But in these cases, that feeling of political and legal and personal life or death is so intense. And I talked to so many people, prosecutors, defense lawyers, White House officials, FBI agents, and they all basically said, “We understand…” In so many words. “I know that whatever else I do in my life, this case, whether it’s the Jack Smith case, the Mueller case, Clinton and Ken Starr on down the line, this will be the first line of my obituary.” So that’s number one, just the intensity of the stakes.

Number two is a reference to where we are right now in the Trump 2.0 era. And I argue in the book that while we do have a long history of presidents to varying extents undermining, and at times obstructing these investigations, what Donald Trump is doing right now is different in kind from everything that’s come before, including Trump 1.0, right? And the notion of there will be no inward looking investigation, period, and I will seek retribution. Hence, When You Come at the King.

Preet Bharara:

That’s the whole point, right? When You Come At The King, you best not miss because if you do miss, the king survives, the king is stronger, the king is ruthless, the king is angry, and the king comes after you.

Elie Honig:

Exactly.

Preet Bharara:

So you detail six special counsel cases, I’ll list them off quickly, by special counsel Patrick Fitzgerald, Robert Mueller, John Durham, Robert Hur, David Weiss, Jack Smith. So they all have something in common kind of, right? Fair to say, you would argue that in all six cases they came at the king and they all missed?

Elie Honig:

No, I don’t think I would quite say that. I think some made the decision that it’s not there.

Preet Bharara:

So they decided not to come at the king.

Elie Honig:

Well, right. So if we look at Pat Fitzgerald, the Scooter Libby case, and by the way, people who are real deep followers of this and this is in the book, know that it was special counsel sort of, but not technically because the way they set it up.

Preet Bharara:

Special counsel light.

Elie Honig:

Right. Special counsel with an asterisk. This was the investigation into the leak of the identity of Valerie Plame, who they outed as… Someone in the administration outed to the media as a CIA operative because her husband, Joe Wilson had written an op-ed basically saying that the bases that you’ve been given by the administration for the war in Iraq, the plutonium yellowcake, that was false. So the notion is in order to get back at him, that’s why they leaked Valerie Plame’s identity. Pat Fitzgerald, who you know, I actually don’t know Pat Fitzgerald.

Preet Bharara:

No, he’s a friend.

Elie Honig:

Yeah. And I’ve heard-

Preet Bharara:

He’s an alum of our office, I guess you didn’t overlap. He became US attorney in Chicago.

Elie Honig:

No, I’ve never heard a negative word about the guy. I really haven’t. He ended up not charging… Some people thought he was going to charge Dick Cheney, but he didn’t have the proof that Cheney had committed a crime. There was a very close call on Karl Rove, and I detail that in the book, the sort of razor’s edge prosecutorial decision that he chose not to bring. He did end up indicting Scooter Libby, you’ll remember that, Scooter Libby was a top White House advisor who then went to trial and was convicted and later never had to serve his time because George W. Bush commuted his sentence and later Donald Trump pardoned him.

Interesting footnote. The only person who went to prison in that case was Judy Miller, a New York Times reporter who refused to give up her sources. And I talked to Judy for the book and she gave me some great details about her experience.

Preet Bharara:

But just so I understand, so you don’t consider Patrick Fitzgerald to have come at the king. Do you consider Robert Mueller to have come at the king and missed or not come at the king at all? I don’t mean to be overly pedantic about your title, but I’m just trying to understand the sort of critique here of the special counsels.

Elie Honig:

Mueller is the trickiest scenario, because Mueller certainly was focused almost exclusively on Donald Trump. I mean, I know he got Manafort and Stone and all those guys, but he was focused almost exclusively on Donald Trump. I mean, did he fire a full shot at Trump? No. I mean, he infamously pulled his punch right at the end. And I have takes from people inside his team on whether they agreed with that when he said, “If I could clear him, I would, but I can’t, but I won’t say,” that whole thing. So he never quite took that shot.

But that said, he is facing retribution. I mean, as you know, people who’ve worked on his team are now being singled out by Trump, their law firms, et cetera.

Preet Bharara:

Can we take a step back and get kind of into it, and I was into the title, and Omar, our justice system is a peculiar one, right? And you did not write a work of comparative legal history or comparative law. But part of the reason the need or supposed necessity for special counsel arises is because our prosecutorial function, a little civics here, our prosecutorial function rests within one branch of government, and that’s the executive branch.

And so generally speaking, you have a prosecutor in the federal system, you, me, when we were in those positions. And you can prosecute people and it’s sort of fair and above board, and there are conflicts of interest unless there’s some personal, from time to time conflict, but there’s no sort of structural conflict of interest. And generally speaking, there’s also not really a perceived conflict of interest if a federal prosecutor goes after someone else in the executive branch, like an FBI agent, that happens, DEA agents, or other federal officials, a congressman, that’s not the executive branch, but it’s a federal official.

And that people think is sort of fine. Where the need for the special counsel arises is when there’s someone so high up in the executive branch, up to and including the president, at whose pleasure the US attorney and the attorney general serve, and depending on the nature of the office holder of the presidency, who thinks everyone serves at the pleasure of the president, it’s kind of weird, right? It’s kind of awkward to have one’s own justice department, if you can use that possessive word, one’s own justice department investigating the person at whose pleasure you serve. You could have a different system, right, where the prosecutorial function lies in some other branch.

But then I think you would have the same issue with respect to parties and people and targets in that other branch of government. So I’m sorry, that’s a long way of asking, are we set up properly or is it an inevitable paradox and unresolvable issue for any prosecutor in the country to investigate the people at whose pleasure they serve?

Elie Honig:

It’s an unavoidable paradox, I think to use your phrase. It’s an inevitable paradox. It’s a tension that’s inherent in the way our government is set up. Are we ideally situated now, is a question that I address at the end, but the notion of, let’s bring in an outsider, let’s not just… This is too sensitive. The conflict between the president and the attorney general who was appointed and serves at the pleasure of the president, is so obvious and so glaring that we do need some outsider. That concept goes back to the 1860s.

The first president, whoever appointed an outsider, people sometimes say it’s Teapot Dome, which was the 1920s. I actually know now because of this book, 1860s, Ulysses S. Grant had a scandal brewing under political pressure. He appoints an outsider and I’ll spoil the ending, he ends up firing the guy. But we have always sort of understood that we need some kind of outsider precisely because of this tension that you lay out. We’ve actually tried at different points in our history to move some of that responsibility out of the executive branch from the post, after Watergate we passed the Independent Counsel Act in the late 1977 or ’78, Jimmy Carter signed it.

And for the next 20 some years until ’99, we had an independent counsel, most famously or infamously, the Ken Starr investigation of Bill Clinton. The way that was set up was part of the reporting chain was over to the judges, over to the judicial branch, right? That this three judge-

Preet Bharara:

So truly independent. And so explain to folks either/or both legally and politically, why the independent counsel, truly independent and not overseen and supervised by the executive branch and the attorney general, why that fell by the wayside?

Elie Honig:

Well, the answer is politics. The answer is a combination of, it’s the Clinton case, the Ken Starr case, that had so rubbed the American public the wrong way, that had so alienated the American public on both sides, right? People who supported Clinton felt like it was a witch hunt. It was six, seven years just about his… That ultimately ended up being about his sexual encounters with Monica Lewinsky. But even Republicans hated what it did because it led to an unsuccessful impeachment. It led to Bill Clinton leaving office with the highest approval rating of any president in modern history. But I do make the point in the book, it’s not just the Clinton case. There were a series of other cases in the nineties that went really bad.

The Mike Espy prosecution, I interviewed Mike Espy himself in the book. What was it like to be prosecuted? He gets acquitted, but his life is destroyed by it. It took years and years to get to this ridiculous result. The Henry Cisneros investigation. So we had this string of failed prosecutions in the nineties, and when that law came up to be reauthorized for the last time in ’99, everyone agreed. Democrats and Republicans alike agreed. Bob Dole and George Mitchell agreed, time to let it sunset, time to let it die. And by the way, there is one-

Preet Bharara:

To the independent counsel. Yeah.

Elie Honig:

One fun note in there, the last time it was reauthorized was in 1994 by Bill Clinton, and George Herbert Walker Bush, the father who Clinton had defeated in the presidential election of ’92, counseled Bill Clinton just in a sense of trying to help his successor do the right thing. He said, “You really don’t want to re-sign this thing. It’s only trouble.” And Clinton sort of felt like he had no choice. What are you going to do as the president, veto an anti-corruption law? And of course he signs it and we know what happens from there. He ends up becoming the subject of Ken Starr’s sprawling inquiry.

Preet Bharara:

I’ll be right back with Elie Honig after this.

So people just remember the origin story of what became the Monica Lewinsky investigation, the Ken Starr investigation, it’s complicated because there was another person, Bob Fisk was appointed, but the bottom line is, an investigation into the actions and activities of President William Jefferson Clinton started by an action taken by his own Attorney General, correct?

Elie Honig:

That is true. Janet Reno initially put Bob Fisk in place, and then later when Ken Starr took over, she was the one who authorized, who approved, had to go to the judges, but she approved… This is the key moment in the whole case, the expansion of Ken Starr’s case from just the Whitewater land deals. She’s the one who gave a thumbs up. Yes, you can expand to look into the Monica Lewinsky obstruction and perjury. Look, Reno is a fascinating figure. I think she’s an admirable figure because she was so fiercely independent.

Preet Bharara:

But that’s the point I’m making. In the shadow of, or in parallel to people’s unhappiness with the independent counsel statute and appointments, has been a trend since Janet Reno. People have learned the lesson. Generally speaking, not all the way through, of being careful not to have an Attorney General that’s too independent. Maybe you can’t appoint your brother anymore, like John F. Kennedy did. But you can appoint Alberto Gonzalez. You can appoint someone who is unlikely to do as Janet Reno did. And that’s the sort of… What do you think of that?

Elie Honig:

So Donald Trump has certainly learned that lesson now with Pam Bondi. No question-

Preet Bharara:

He overlearns a lot of lessons.

Elie Honig:

But I do think if we look at the last few presidents though, Joe Biden, I quote him in the book. It’s from Bob Woodward’s reporting. Joe Biden was furious that he had chosen Merrick Garland, because Merrick Garland allowed the appointment of, in particular, the Hunter Biden special counsel.

Preet Bharara:

Depending on your perspective, if you’re a political advisor to the president, I’m not saying that I endorse this as a legal matter or as a corruption matter, but if you’re a political advisor to a president, what would you say the next time there’s a new president? You’re like, “Look, who should I pick to be my AG?” Well, you could pick the best, most responsible, most high integrity person in the United States of America. Or you could say just don’t pick a Janet Reno or Merrick Garland because you don’t need that in your life.

Elie Honig:

Right. I mean that is the self-interested move would be, let me pick the person who has the most impeccable credentials on paper and will appear to be independent. But I also, if I’m the self-interested president, I also have faith that this person won’t really take any steps to harm me.

Preet Bharara:

The principle is, I need a person who’s not going to screw me.

Elie Honig:

Right. Now, Trump has taken that to whole new levels of not just-

Preet Bharara:

Well, he takes everything to whole new levels, but let’s talk about normal presidents, is that a good thing, a bad thing, a neutral thing?

Elie Honig:

I don’t think it’s a good thing if that’s what presidents are doing. If presidents are intentionally choosing people who they know and believe won’t go after them because they won’t believe that that person won’t go after them, that’s unequivocally a bad thing. I do think there needs to be an independent attorney general. Look, I don’t think attorney generals should be complete free agents unaccountable to anybody. I think if things run off the rails or they start running runaway investigations, there should be consequences.

But again, even if we think back to Trump 1, what the sequence there, people will remember, Jeff Sessions correctly recused himself from Russia, from the Russia investigation. Rod Rosenstein who talks to me for the book, Rosenstein took over and he picks Bob Mueller. So even if Trump won and Trump hated it, but it survived and it ran its course.

Preet Bharara:

What did Rod Rosenstein have to say for himself?

Elie Honig:

Rod Rosenstein gave me a lot of interesting insights. I’ll tell you one thing that I thought was really… What I had not heard before. Rod Rosenstein is a deep admirer of Robert Mueller, as is everybody who’s worked with the man. And by the way, his history, and you know this, I’m sure Preet, he was a Vietnam veteran. He was shot through the leg in Vietnam, could have gone home, and when he healed-

Preet Bharara:

Robert Mueller, not Rod Rosenstein.

Elie Honig:

Robert Mueller, to be clear.

Preet Bharara:

Let’s be clear.

Elie Honig:

Yes. He went back to Vietnam. He was then, I believe, and I talk about this in the book, the only person ever to be nominated by four consecutive presidents, two Republicans, two Democrats, to various different positions and approved by the Senate unanimously each time. But one thing that I asked Rosenstein, Rosenstein was reluctant to appoint special counsel at first. He told me that.

Preet Bharara:

Can we just make sure, before we get too far along, can we just make sure that people understand why we’re talking about Rod. Rod Rosenstein was the Deputy Attorney General in the first Trump administration. And Jim Comey was fired by the President of the United States, the FBI director on a Tuesday in July of 2017. And then by the next week, Rod Rosenstein appointed, he handpicked to take over the Justice Department by Donald Trump, appointed Bob Mueller as special counsel. So that was done by Rod. That’s why we’re talking about it.

Elie Honig:

Right. And the reason Rod Rosenstein made that decision is because Jeff Sessions had already pulled, who was the AG, had already removed himself off the case because he-

Preet Bharara:

I want to talk about that decision in a moment.

Elie Honig:

Yeah.

Preet Bharara:

But look, you’re absolutely right. Bob Mueller was, it’s hard to remember now because a lot of time has gone by. There was literally no more widely respected and revered law enforcement figure on both left and… The way I talk about it is, I think you started to mention this, is when his ten-year FBI term expired, in the entire United States of America, 330 million people, who did both parties in Congress decide to pick? They actually changed the law for that guy.

Elie Honig:

Barack Obama asked for him to sign.

Preet Bharara:

Barack Obama asked for a change in the law because we’re like, “Yeah, we can’t find anybody else. It’s got to be that guy.”

Elie Honig:

Well, and similar to that, Rosenstein told me, I said, “What if Bob Mueller had said no, or just said, I don’t want to do it?” And Rosenstein said to me, “If Bob Mueller did not agree to be special counsel, I probably would not have chosen a special counsel at all.” So it’s not like he would’ve gone to option B, he just understood that that job was so difficult and so fraught that Mueller was literally the only human being in the country who could actually do it in a credible way.

Preet Bharara:

Yeah. Is it your sense that Rod Rosenstein appointed Bob Mueller, as much as we admire Bob Mueller, at least I do and still do, because he was thinking about all the best things for the country, or a little bit because he was hugely under fire himself. Because remember, that guy, Rod Rosenstein wrote, what I will call the bullshit memo about why it was that Jim Comey could be fired? Because he didn’t treat Hillary Clinton very well. And anybody who believes that the President of the United States, Donald Trump fired Jim Comey because he was mean to Hillary Clinton, well, I have a few things to sell that person. Could you address that?

Elie Honig:

Rosenstein tells me how this memo came about. He talks about being called into the Oval Office and basically told by Trump, “I need you to write a memo just assessing Comey’s actions.” And Rosenstein basically details how he goes back, he does it overnight. He shows it to various ethics people at DOJ. Rosenstein claims, and he has claimed publicly also that he did not realize, and he was dismayed when he saw that that memo was then stapled to the letter basically firing Jim Comey.

Preet Bharara:

Do you credit that? Do you think he’s a guy who survived multiple administrations, multiple parties, he’s not a dumb guy, I believe he went to Harvard Law School, knows his way around the block. You think he was really fooled by the President of United States about the pretextual nature of that memo?

Elie Honig:

I don’t think he was fooled. I mean, I think he looked at it with blinders on. He looked at it and he says this in the book, “Look, the President of the United States hands you an assignment. You do the assignment.”

Preet Bharara:

What do you think was his motivation in appointing Robert Mueller? I’m making a mildly polemical point, which is that people may not remember, between the Tuesday that Jim Comey was fired on the, what I call the BS pretextual memo, there was a lot of pressure on Rod, a lot of pressure, and I know some of this personally, and a lot of people were calling for his head, and I think it was a good thing and I think it was a good result. I’m just wondering if you have a view or an assessment, given the research you did for the book and your interview of him, and you’re thinking about all the issues, whether or not the appointment of Bob Mueller was a little bit about protecting Rod.

Elie Honig:

Oh, I’m sure it was. And I talked to Andy McCabe in the book. Andy was at this point, had been the deputy FBI director and took over for Comey and was close with Comey.

And Andy sort of told me about, it’s in the book, a series of meetings he had with Rosenstein, where Andy McCabe was pushing for special counsel. He thought it was necessary and required really. And Rosenstein was reluctant and really went through a hard time. He wasn’t sleeping, he says, and there was news trucks camped on his front lawn. And ultimately after a week or so of this, he decides to make the appointment.

But Rosenstein, by his own assessment, was reluctant to do that. But I think the political forces and pressure made it almost irresistible at that point. I mean, what would’ve been the alternative to just have someone within DOJ do it, to have Rosenstein do it? I think that scenario was calling out for special counsel, and I was actually surprised that Rosenstein was as hesitant to do it as he was. But Rosenstein had prior experience. He had been on other special counsel cases and independent counsel cases, and he was wary of them.

Preet Bharara:

So who was the most successful… And you have ways of defining success and the metrics of how you judge and adjudicate these tenures, who is the most successful of these six special counsels?

Elie Honig:

Well, if we go through history, the easy answer there is Watergate. I mean, I’ll get back to the six, but I have a whole long chapter on Watergate. Even after the Saturday Night Massacre, the team stayed intact and I interviewed Jill Winebanks and Jim Quarles, both of whom were young prosecutors on the team. They tell us what happened the next morning, how the team, Archibald Cox comes into the prosecutors and says, “Don’t you quit, make him fire you all if that’s what it’s going to come to. You keep doing your work.” And we know the ultimate end result. Leon Jaworski becomes the independent counsel, independent prosecutor a few weeks later and ultimately leads to Nixon’s resignation.

Of the six modern ones, well, let me tell you a couple that are definitely not in contention. John Durham is not in contention for best special counsel, I mean honorable mention, no, he’s sixth. He’s in sixth place of the six. He took four years. He brought three charges, one of which led to a probation guilty plea. The other two went to trial and were acquitted. And I interviewed one of those people, Igor Danchenko, who was put on trial, lost his job, lost tons of money, was put through hell and was found not guilty. So John Durham is definitely number six of the six.

Preet Bharara:

Could we pause on that for a second?

Elie Honig:

Sure.

Preet Bharara:

In what way are you judging a special counsel based on charges not brought, because sometimes it’s the proper thing, right?

Elie Honig:

Yeah. So I think where I’m going to end up here is, the two most successful didn’t really bring charges. I mean, I think I would say the Scooter Libby case… The Pat Fitzgerald case, because he was careful in who he charged. The person he did charge got convicted of a serious crime. He didn’t satisfy some people’s appetite to take down Dick Cheney, but I don’t think the evidence was there. So I think Pat Fitzgerald, it’s hard to pick faults with. Look, to an extent, Robert Hur.

Preet Bharara:

Can you remind people though quickly, Elie, who Robert Hur was and why he was controversial?

Elie Honig:

Robert Hur was appointed also by Merrick Garland to investigate Joe Biden’s possession of classified documents. He took about a year. He did not end up charging anybody. He did not end up recommending a charge on Biden. He couldn’t have charged him because he was a sitting president or the ghostwriter who arguably could have been charged because he deleted some files, but there were mitigating circumstances.

But Hur’s, the thing he was most controversial for is he writes this 300 page report at the end explaining that he’s not going to be charging Joe Biden, but he drops a line in there saying basically Joe Biden… And this is before Biden was out of the race, this is in early 2024. He presented as a well-meaning elderly man with a faulty memory. And Bob Bauer, the lawyer who defended Joe Biden on that case was ripshit about that.

I mean, then and now, to me, he said in the book that statement was completely inappropriate, completely extraneous to the investigation. I will say, on the one hand, I mean Hur’s observation of Biden’s mental state ended up being largely borne out later because later we have the debate and then Biden quits, and now we’ve seen all the later reporting. But that’s not really the question. The question is did he have to put it in the report?

And in the report itself, it says, “Well, this is relevant to my assessment of his intent.” And you have to think about that. You do have to think about how’s a jury going to receive this person in this case. So I think Hur, look, I think his decision not to charge Biden was the right one. I think his decision not to charge the ghostwriter was the right one. I think he did his work under the radar. He didn’t leak anything. So I don’t say everything he did was perfect, but I think overall he grades out acceptably. Those two, look, Jack Smith gets an incomplete. I mean, the first line of my chapter on Jack Smith was, Jack Smith never had a chance because by the time he was put in, there was no real way he was ever going to be able to get his cases tried. Durham was a flop. Mueller’s a mixed record.

Preet Bharara:

Well, there was a way, he could have gotten his cases tried if Trump hadn’t won.

Elie Honig:

Yes, that’s true. Correct. But my argument is there was no way he ever was going to-

Preet Bharara:

Before the election.

Elie Honig:

… before the election, right.

Preet Bharara:

Yeah.

Elie Honig:

And then there’s the Hunter Biden case, which I think was a faulty, and Abby Lowell, Hunter’s lawyer talks to me, and I agree with Abby that that never should have been made special counsel. It wasn’t made special counsel until three years into the case, and they ended up going from a near plea deal to this overkill of multiple indictments, one for tax and one for a gun. So I think that was a failure as well. So I think a couple of them have mixed records, and I think a couple of them end up acquitting themselves, no pun intended, relatively well in the historical scope.

Preet Bharara:

Do you think the future of special counsels in the federal system is basically at an end? We’re at the end of history when it comes to special counsels, at least for the next three and a half years? Is there any circumstance in which you can imagine a special counsel gets appointed?

Elie Honig:

We are definitely not going to have a special counsel in the next three and a half years unless it is used in the weaponized way, unless it is somebody going after an-

Preet Bharara:

An adversary of Trump.

Elie Honig:

Jack Smith or going after, name your person who Trump hates.

Look, we have to be realistic about this. There’s no way there’s going to be a legitimate special counsel in the next three and a half years. There’s not even going to be a Mueller type appointment that happens sort of without Trump knowing about it. Pam Bondi will make sure of that. But part of the pitch, the plea that I make at the end of the book is this, whoever comes next, whoever is our 48th president, whether it’s JD Vance or Gretchen Whitmer, Gavin Newsom or whoever it might be, is going to find that a lot of guardrails have been destroyed, right?

There’s going to just be wreckage of norms, guardrails, laws, traditions all over the place, not just special counsel, but ethics rules, inspectors general, limits on personal and private profiteering when you’re president, all that stuff has been just totally kicked down by Trump. Right now neither Congress nor the courts is really in position to do much about or wants to do much about it.

And so it’s going to be tempting for the next person to become president to just say, well, as you said before, Preet, whoever likes special counsel, life is easier without a Bob Mueller, without a Jack Smith, without a Janet Reno or a Ken Starr, whoever it may be. And so why not just leave it dead, leave it dormant. But I urge and argue in the book that this is an essential part of accountability of good government.

And it’s not like this is a new thing. Like I said, it goes back to Ulysses S. Grant, I quote Archibald Cox, who was fired by Nixon saying, “Throughout our history, we just know it’s the right thing, there has to be some type of an outsider.” There’s ways we can improve the system that we have, our current regulations have been on the books since ’99. We do tend to revamp the system every quarter-century or so. I think it’s time, but we do have to keep this.

Preet Bharara:

My conversation with Elie Honig continues after this.

Let’s take the Jack Smith appointment, and I think Merrick Garland made the appointment in good faith, and it was all above board. And I think both gentlemen have integrity and ethics, but to the extent that the move was in part intended to have people have faith in the process, faith in the decision-making, whether it was an indictment or not, and of course there were two indictments. Did he get the benefit of any of that from any constituency? In other words, did he get more benefit from the appointment of Jack Smith in that respect than he would’ve gotten if he just oversaw it himself with prosecutors from within the Justice Department? What’s the delta there?

Elie Honig:

He, meaning Merrick Garland. Yeah. I mean, look, the original sin of Merrick Garland, you and I have discussed this many times, is just that he waited so long and he took so long, and there’s been reporting from every major outlet that you were not allowed to mention Trump around Merrick Garland for the first year and a half. And so by waiting so long, I think he really handicapped himself.

In the end, did Garland… No, I don’t think Garland got much out of… I don’t think Garland got much of a political benefit or insulation out of appointing Smith because he put Smith in this impossible situation. And Smith is an interesting character here because in some ways somebody described him as the anti-Mueller, because Mueller, the way it was described to me was, I think this was Trump’s lawyer, but I think he had a good point here. John Loro, who I talked to, he said, “Look, Mueller was an institutionalist, Mueller was very concerned with the staying in the lanes and erring on the side of caution, hence his controversial non-conclusion.” And by the way, one of the guys who drafted the regulations, Mark Toohey, told me, “That’s not what we intended. We intended that if you found that the president had committed a crime, sure, you can’t indict him, but you should have said so.” And he said clearly, Mueller should have said so. Rod Rosenstein said the same thing.

Preet Bharara:

Well, they both said so clearly in discussions with you, they didn’t say so clearly in the regulations.

Elie Honig:

Right. The regulations don’t specify… No, you’re right about that. But I asked Toohey-

Preet Bharara:

That’s nice. They were very clearly with Elie Honig.

Elie Honig:

Yeah, exactly, in 2025, right?

Preet Bharara:

Thanks very much.

Elie Honig:

Exactly. But Jack Smith was, the way it was described, his prosecutorial approach was more like what mine would’ve been when I was the head of organized crime at the SDNY, which is like, see target, take down target. And that’s not necessarily a fault, but they presented two different models. But Loro, Trump’s lawyer said to me, he obviously had his differences with Jack Smith, and I outlined the last meeting they had before the indictment, which is sort of contentious. But Loro said to me, “In terms of reinvigorating Donald Trump’s political fortunes, we couldn’t have been any luckier if they had chosen Darth Vader,” because in John Loro’s view, Jack Smith was over the top and was sort of a heat-seeking missile, as he was put. And by the way, it’s worth noting, Abby Lowell said more or less the same thing about Jack Smith.

Abby Lowell, who has represented all sorts of democratic interests is constantly contrary to Trump. Abby had early cases against Jack Smith, including the John Edwards case, and Abby said, what you said, Preet. “I respect Jack Smith. I think he’s the consummate pro. I don’t think he’s political, but he tends to be a heat-seeking missile when he gets his sights fixated on something,” which people may say, “Well, that’s great, that’s what we want our prosecutors to be.” I was kind of that. So I don’t mean that… But when you’re a special counsel and there’s all these political factors flying at you, it can backfire.

Preet Bharara:

Do you see a conflict… I’m sure you do, but I’m just wanting you to address the conflict between a responsibility of a prosecutor to see if anybody has committed a crime or there’s probable cause to find that someone has committed a crime, identify those people and see if you have proof beyond a reasonable doubt, and that prosecuting them is in the interest of justice. On the one hand, that responsibility and obligation and duty on the one hand versus in the special counsel scenario, writing a document, a memo, a report to set forth why you did or did not do the first thing. Is that resolvable?

Elie Honig:

There absolutely is a tension there. And if you look at the special counsel regs, most of what’s in there is a maybe 2%, 3% removed or different from what any normal federal prosecutor would do, right? The special counsel regs say, “Well, you have to keep the AG apprised of major developments, but you don’t necessarily…” I mean, that’s what you did when you were a US attorney, right?

Preet Bharara:

More or less. More or less.

Elie Honig:

Well, sometimes to my pleasure, you were a little on the less side, right? We don’t like reporting to the bosses in DC, but the one thing that is 100% the opposite is this report writing requirement. I mean, this would be anathema for a normal prosecutor to say, “I have not charged Joe Biden. I have not charged Donald Trump,” in Mueller’s case, “But here’s 300 pages on bad stuff I found about them.” And I think there’s real criticism of that. But I guess it’s complicated because if you flip it, if there was no report writing requirement, would the American public in 2019 have accepted a statement from Mueller, “We’ve closed our case. There will be nothing further.”

Or from Robert Hur in 2024 saying, “I’ve been at it for a year. I hereby close my case on Joe Biden. No further information will be forthcoming.” One thing that I do think is fair is these reports have gone out of control, and Bob Bauer who represented Biden and others said to me, “Why is every one of these things a 350-page novella at this point?” You could do it in a much more summary manner.

So the regs do require a report. I think some reporting is probably necessary just given the profile of these things and the nature of political accountability. But I do think they’ve gotten to be like… They’re out of control with 400, 300 pages with all of them.

Preet Bharara:

So if you could wave a magic wand, would you retire the special counsel?

Elie Honig:

No. I would revise it though, and I lay out this proposal at the end. I think there are some things that we can do a little bit better. I think by and large, the special counsel regulations as they exist are pretty darn good. And I say that, the people who drafted this 25 years ago did a pretty good job of it overall. I would certainly want to see the report writing requirement clarified to say, “You need to give us the essentials, but we don’t need every single detail that you found.” I argue in the book that there should be a semi-permanent special counsel, and I took that from a law review article by a retired federal judge, a guy named Noel Hellman. Others have suggested it, it was one of the proposals initially made after Watergate. I think we need some-

Preet Bharara:

Is it like an inspector general kind of thing?

Elie Honig:

Yes, but with prosecutorial power, right, exactly. I think we need to up the standard to fire the person from just good cause to a higher level of protection, which again was in an early version of the post-Watergate law. I think we need to vet… This is something that’s different from normal DOJ. I think we need to vet the people who serve with special counsel over political biases. And I don’t mean you probe the person, but if the person has made political donations or made public statements politically for or against the person who’s being investigated, just that person shouldn’t be part of this team. I’m not saying the person can’t work at DOJ, but there’s hundreds and hundreds of DOJ prosecutors who can do this.

So if you’ve donated or gone to a rally, you’re just not suited for that particular job. I think we also have to get rid of the rule… This is ridiculous. One of the special counsel rules says, “The person who gets chosen cannot be in the federal government at that point.” It’s been ignored in three of the six cases. They just were like, “Eh, we’ll just ignore that one.” So let’s get rid of that one. If your best person is already at the Justice Department, so be it.

So I think there’s tweaks that could be made, but by and large, I think our system works. And you and I have discussed this, I ultimately think the people who carry out these responsibilities are just as important, if not more important than the rules. We’re all lawyers. We all know how to get the result we want, and so-

Preet Bharara:

A hundred percent. My whole book is about this. My whole book is about this.

Elie Honig:

Exactly, exactly.

Preet Bharara:

This issue. And Ken Starr, I would dare say, did more violence to the notion of a special independent counsel than any regulation, rule or statute.

Elie Honig:

I think that’s right. And I talked to David Kendall, who was the Clinton’s lawyer and Landy Brewer who was a White House lawyer, and I talked to Ken Starr’s number two, a guy named Saul Weisenberg. Ken Starr, of course, passed away a few years ago. Yeah, history has not rehabilitated Ken Starr at all. If anything, I think it’s cast an even worse shadow on him. I don’t know that people remember this. He was holding on, Whitewater was dead in the water. He had been looking at Whitewater for four years-

Preet Bharara:

Dead in the water, they were calling it.

Elie Honig:

Dead in the water. But Saul Weisenberg, who was Ken Starr’s number two, and still believes in what Ken Starr did, told me, he said, “My tenure with Ken Starr was set to expire in February 1998, but in January 1998, the Monica thing hit and I thought, Ooh, I’m going to stick around for this.” And I will tell you both David Kendall and Lanny Brewer, who represented Bill Clinton and the White House respectively, said to me, “This guy was just hanging on for dear life, hoping for something to happen,” as Lanny Brewer put it to me. He said, “And suddenly he gets this manna from heaven.” And I do have this great moment in the book where David Kendall first hears the name Monica Lewinsky, and he has no idea who this is. He gets a call from Mike McCurry, who was then the White House Press secretary. McCurry basically says, “Emergency situation, the Monica Lewinsky story is about to publish in the Washington Post.” And David Kendall says, “Mike, who’s Monica Lewinsky?”

Kendall then calls Eric Holder, who is Deputy AG, Eric Holder’s at a Wizards basketball game. And Kendall says, “Hey.” He said, “Eric Holder was a straight shooter.” And I said to him, “You got to kill this story. The Post isn’t listening to us, but there’s no possible way that this Monica Lewinsky stuff could be within the scope of what Ken Starr has done.” And Kendall says there was a silence for a few seconds on the line, and then Holder says, “David, I wouldn’t get too far out ahead of that one.” And Kendall knew at that moment, “Oh shit, everything has changed.”

Preet Bharara:

We’re running out of time, Elie. People should read your book, When You Come At The King, Inside DOJ’s Pursuit of the President from Nixon to Trump. Good luck with that. Thank you so much. Congratulations on the book. People should go and get it. It’s quite an education. When You Come At The King, Inside DOJ’s Pursuit of the President from Nixon to Trump. Thanks so much.

Elie Honig:

Preet, thank you very much for having me. And thank you, not to be corny, but thank you for your support with all the stuff I do, including [inaudible 00:40:28].

Preet Bharara:

Of course. My conversation with Elie Honig continues for members of the Cafe Insider Community.

Elie Honig:

He goes, “We were going to get killed because I thought we just killed him, and our orders were not to kill him. If you defy orders, if you’re told to beat someone and you kill them, you could get killed.”

Preet Bharara:

To try out the membership, 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. You can also now reach me on BlueSky, or you can call and leave me a message at (833) 997 7338. That’s (833) 99-PREET. Or you can send an email to letters@cafe.com. Stay Tuned is presented by CAFE and the Vox Media Podcast Network.

The executive producer is Tamara Sepper. The technical director is David Tatasciore. The deputy editor is Celine Rohr. The editorial producers are Noa Azulai and Jake Kaplan. The associate producer is Claudia Hernández, and the CAFE team is Matthew Billy, Nat Weiner and Liana Greenway. Our music is by Andrew Dost. I’m your host, Preet Bharara. As always, stay tuned.