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Episode 6: Benjamin Wittes’s Guide to Impeaching Trump and Beating Up Putin
Preet Bharara: Ben Wittes, thanks for being on the show. I’ve been wanting to have you on for a long time, so thank you.
Ben Wittes: Thanks for having me.
Preet Bharara: I want to mention, you have a podcast that everyone should listen to. You want to plug it?
Ben Wittes: I have two podcasts. So, we have the Lawfare podcast, which is the regular weekly and sometimes twice a week podcast of Lawfare. We also produce Rational Security, which is a weekly show that I do with Shane Harris of the Wall Street Journal, Susan Hennessy of Lawfare, and my wife, Tamara Cofman Wittes.
Preet Bharara: If you were a member of Congress today and the issue were to arise, based on what we publicly know today, would you vote for the impeachment of Donald Trump?
Ben Wittes: I would, and I would do it without a sense of that being a radical step. And I would do it on the simple basis that the president—leave aside the question of whether the president’s interaction with his top law enforcement officer was a criminal act. I actually don’t think that’s a deeply important question, unless you’re a criminal prosecutor. If you’re evaluating it from an impeachment point of view, the relevant question is, is it an acceptable use of presidential power? Is it an acceptable fashion for the president to engage with his law enforcement and intelligence apparatus? And here are the essentially uncontested facts. The president met with the FBI director early in his tenure and asked him for a pledge of loyalty.
Preet Bharara: And you credit that.
Ben Wittes: I see no reason not to credit it. I was aware of it at the time. Jim told me in general terms that it had happened when there was no controversy about it. And I have no doubt, whatever mistakes one thinks Jim made last fall in the Hillary Clinton email investigation or last summer, there is just no doubt that this is a person of honor and integrity. He has no history of lying, and I can’t imagine a reason he would make this up about Donald Trump, particularly not in private conversation with me at the time. So, for me, the question of Jim’s honesty and integrity, it’s not really a question I’m prepared seriously to engage. So. Number one, there’s a loyalty oath dinner. Number two, there’s a specific request to drop a public integrity and national security investigation against General Flynn. Number three, there are repeated calls in which the head of the FBI felt pressured to take substantive actions in a pending law enforcement investigation. Number four, there is the apparently corrupt firing of the FBI director when he did not comply with those requests. And number five, there are subsequent repeated threats to the attorney general, the deputy attorney general, the special prosecutor. And I think when you put all that together, it is very hard to argue that the president has behaved in a fashion that comports with the way we understand the president—the appropriate use of presidential authority vis-a-vis law enforcement. If I were a member of Congress, I don’t need to know whether any of that violated the criminal law. All I need to know is that it’s an abuse of power.
If you want to understand how [Trump] would behave in the absence of legal restraint as president, loo[k] at how he behaves in the absence of legal restraint in other areas of life when he doesn’t fear consequences.
Preet Bharara: I mean, how far do you think he is prepared to go but for the absolute hardcore constitutional structural limitations on what he can do?
Ben Wittes: So, I’m hesitant to answer that question because it involves looking into his soul.
Preet Bharara: And what do you see when you look into his soul?
Ben Wittes: Well, so first of all, I question whether he has one. But that’s a question that I’m not in a position really to have an answer to. I will say this: if you look at areas where he is genuinely unconstrained, his behavior is pretty consistently awful. And the sexual assault arena is one that’s big in the news these days because of Harvey Weinstein, but there are a large number of women who have accused Donald Trump of gross sexual misbehavior toward them. And what I would say is, if you want to understand how he would behave in the absence of legal restraint as president, looking at how he behaves in the absence of legal restraint in other areas of life when he doesn’t fear consequences is not a terrible way to start answering the question.
Preet Bharara: Although interestingly, it has been pointed out that he does lie on a regular basis, at the podium and at rallies and in television interviews. But on those occasions when he is under oath in a deposition, he lies less.
Ben Wittes: And what I would say to that is, that puts a real premium on the constraints. Because if you accept my point that this is somebody who, when he is unconstrained, gets Hobbesian real fast, and you accept your point that he is not entirely immune to the forces of fear of legal consequences, then it puts a premium on what those consequences are and how much he has to fear them.
Preet Bharara: So, let’s talk about one of the ways in which he exercised basically unfettered power, although there’s a dispute about this. And I’ll ask you the question the way it’s always asked to me, although I don’t like this question so much. And that is, the president’s firing of the FBI director, Jim Comey, in the circumstances in which he did it, and given the state of mind that he has said that he had at the time he did it, does that constitute obstruction of justice?
Ben Wittes: Well, first of all, let me start by answering it the way you have answered it to the many people—
Preet Bharara: You’re not allowed to do that.
Ben Wittes: To the many people who have asked you this question, which is, obstruction of justice is a specific intent offense. And in order to answer the question of whether somebody committed obstruction of justice, the same words can be obstruction of justice or not, depending entirely on circumstances. The great example here is, “That’s a nice house you’ve got. It would be a shame if something happened to it.” That is obstruction of justice if you’re Don Corleone and the person is a potential witness, and it is an insurance salesman doing his job if you’re an insurance salesman trying to sell somebody homeowner’s insurance, right? And firing the FBI director is a little bit like that. It can be an obstruction of justice if you do it with the specific intent of corruptly interfering with a proceeding within the meaning of any number of federal statutes; or it can be an aggressive exercise of your undisputed lawful presidential authority to staff the executive branch if you do it for other reasons. Now in this case, Trump has made comments that raise questions about where on that specific intent spectrum that he is. He did make this very peculiar remark to Lester Holt on national television about the Russia investigation being on his mind at the time that he did it. He also, according to the Washington Post, blurted out to the Russian foreign minister in the Oval Office, taking a break from dispensing information about highly classified intelligence programs, to say that he’d gotten rid of the FBI director, who was a nut job, and he’d reduced a lot of pressure on himself in the course of doing so. And all of that would raise a reasonable inference in my mind, in the minds of any prosecutor, that maybe an obstruction of justice had taken place here, particularly in conjunction with a whole lot of other activity that he engaged in with respect to Comey and with respect to law enforcement and the Russia investigation more generally.
The same words can be obstruction of justice or not, depending entirely on circumstances.
Preet Bharara: And the discussion about Michael Flynn–
Ben Wittes: A whole bunch of interactions. And yet, if you were a responsible prosecutor looking at–exploring–that inference, you would want to see every scrap of paper that the White House generated. You would want to talk to everybody who interacted with the president, either from the FBI side or from the White House side, and you would want a very holistic picture of what had happened before you made a judgment about whether obstruction had taken place. And that is precisely, as I understand it, what the Mueller crowd is working on right now.
Preet Bharara: But my question is, imagine what could be out there, even hypothetically, that might be exculpatory.
Ben Wittes: Okay. So, there’s at least two categories of information that I think is potentially exculpatory on the criminal side, though I’m not sure it’s exculpatory to a reasonable member of Congress trying to decide whether to consider this pattern of behavior to be an impeachable defense. That’s a sort of a different analytical . . . But one is, if you read the entire Lester Holt interview, Trump actually says more than one thing, as is his want, about why he did what he did. And he definitely said that the Russia investigation was on his mind, but he also said the FBI was in turmoil, and he was just trying to do it right. He also said that he was just—he was really concerned to have the Russia investigation done right, and he knew he might even lengthen it by firing Comey, but he just wanted to do the right thing. And so, one question you might have is, whether given the diversity of the president’s comments, you actually have enough of a mixed picture that you could’ve prove beyond a reasonable doubt that it was for a corrupt reason. So, that’s one possibility.
Preet Bharara: That’s, of course, if you credit all those other reasons and assign them sort of equal value.
Ben Wittes: Correct. And that’s also—that puts a premium on a second body of data, which is, which of those reasons does the underlying documents and subsidiary testimony of people Trump would have been talking to at the time support? The second possibility, and this is, I think, something that White House lawyers have kind of teased to the press, maybe a component of their defense argument. But I think it may have some legs, actually. The president appears to have been very angry at Jim for not having—not being willing to say publicly that he wasn’t under investigation, which Jim testified himself that he had told the president on a number of occasions in their individual communications. Now, so if you fire somebody not to interfere with the investigation, but because you’re pissed off at him for not saying publicly that you were not the subject of an investigation, I would consider that grossly inappropriate behavior, and I would be very comfortable thinking that a member of Congress should consider that as part of his evaluation of presidential fitness. But it’s not clear to me that it interacts with the obstruction statutes in a fashion that would be obviously criminal.
Preet Bharara: Let me ask you this. So, suppose the only reason that there was evidence of was Trump was angry that Comey wouldn’t publicly declare the Trump was not under investigation? That’s all you had. You would agree, no criminal obstruction, probably.
Ben Wittes: I think that’s right.
Preet Bharara: Now, what if there were two reasons for the president firing Jim Comey? One was, he was upset that Comey didn’t say publicly the president wasn’t under investigation, and the other was, he didn’t like the Russia investigation, and he would have preferred it to be over. They’re both in the president’s mind, and a jury—a hypothetical jury in the future—would be presented with both of those things. Is that obstruction or not?
Ben Wittes: So, I think the answer—you’re the former federal prosecutor.
Preet Bharara: I know, but I’ve got you here. You’re the guest.
Ben Wittes: I think the answer to that question is, it’s a jury question. If you can convince a jury that a substantial component of the motivation was a corrupt, criminal state of mind, it is not precluded as a matter of law to indict that as an obstruction. On the other hand, you are looking as a prosecutor in that situation at a factual environment in which the defendant has a very viable defense that says, no, this thing that you’re treating as the reason, the specific intent, is just noise. The real intent is this, for which there’s a lot of evidence he could generate in the record.
Preet Bharara: Okay, this comes up in our public corruption prosecutions all the time. There’s evidence that someone voted for a bill, for example, because they got some benefit as a quid pro quo. And their defense always is, well, no, that bill also was to the benefit of my constituents and was consistent with my views. And so, you have this mixed motive thing there too. And there, the law is very clear, and we proceeded that if some part of your decision-making was the quid pro quo, was for the benefit of some financial gain to yourself that you put in your pocket, then it’s not enough that it otherwise was—in other words, we would argue that what could be better than getting paid for doing something you were going to do anyway? That’s not a defense. And here, you’re right. My view is it would just be more complicated. You’d have to be able to assess how much weight you give to the one reason versus the other reason, and then whether or not it’s appropriate to proceed against someone when it’s hard to figure out how much weight to attach to those reasons because it’s something that’s in someone’s brain, and you have a particularly interesting brain when you’re talking about Donald Trump.
Ben Wittes: Right. And I think here is where we know of certain ancillary bodies of evidence that I think are extremely important in being probative of the president’s state of mind. And one of them is this not yet public, but someday it will surely become public, Bedminster memo, in which the president, the weekend before the firing, goes and plays golf and basically dictates to Stephen Miller a letter that he wants to send firing Jim. And this is apparently a lengthy document that amounts to something of a rant.
Preet Bharara: You don’t think it was a measured, sane document, along the lines of the Magna Carta?
Ben Wittes: Well, let’s just say that that is not the way it has been characterized in the reporting about it. So I think if you’re thinking about the original understanding of the president’s state of mind, this document, before Rod Rosenstein, who is reported to have read it and said, “You don’t want to send this. I’ll write you a different memo.”
Preet Bharara: Rod Rosenstein being the then—still—Deputy Attorney General of the United States.
Ben Wittes: Correct. So, that document, I think, gives a lot of probable insight into what the president was actually thinking, and I would think if you’re a prosecutor, you want to study very carefully not merely what was said in that document, but also the accounts of the exact sequence of events that led to the firing to understand how it relates to these prior instances in which Comey felt threatened or felt pressured by the president, and these prior instants in which the president very, very strangely vis-a-vis a pending law enforcement matter that was before his FBI director.
Preet Bharara: There are a lot of people who are in government now about whom the president says terrible things, and intimidates them and mocks them, some of whom have played along, and some of them, you wonder how much they’re not playing along behind the scenes. I’m gonna take you through a series of people and ask you your view in one sentence if they should resign or not. Rod Rosenstein.
Ben Wittes: I have written that Rod Rosenstein should resign. I say that with a heavy heart. I’ve known Rod for 20 years, and it’s somebody I’ve always thought highly of. I do think that subsequent to my saying that about him, he has behaved pretty honorably over the last few months, and so I’m not sure that in retrospect, I’m not glad he did not take my advice.
Preet Bharara: A triple negative there.
Ben Wittes: Yeah.
Preet Bharara: Okay.
Ben Wittes: But so yeah, complicated case.
Preet Bharara: Should Attorney General Jeff Sessions resign?
The question of how much day-to-day humiliation a person should tolerate from the President is one that’s really ultimately between them and their consciences.
Ben Wittes: Look, I think a man of honor in his position would have resigned. When the president talks about you that way—my boss, Strobe Talbott, current boss or future boss, John Allen, ever talks about me the way the President has talked about Jeff Sessions, I am not coming to work the next day. That said, would it be a good thing for the country if Jeff Sessions resigned tomorrow? Probably not. I mean, the result of Sessions’ resignation would be a vacancy, which would lead to a lot of weirdness and uncertainty about the protection of the Mueller investigation, right?
Preet Bharara: In other words, the new attorney general would not necessarily be recused from that.
Ben Wittes: Exactly.
Preet Bharara: And would come in above Rod Rosenstein, who’s the putative head of the investigation.
Ben Wittes: Exactly. And Trump has made clear that he regards part of the function of the attorney general as protecting him from that investigation. So, the result is that we have a weird constellation where Sessions is—by the fact of Sessions’ recusal and the fact of Rosenstein’s having appointed Mueller, we have a degree of protection for the Mueller investigation that would not necessarily exist if you removed either Sessions or Rosenstein.
Preet Bharara: Should Rex Tillerson resign?
Ben Wittes: I would not serve another day if I were Rex Tillerson.
Preet Bharara: Same principles. Man of honor.
Ben Wittes: Yeah. I mean, I think Rex Tillerson is—the question of how much day-to-day humiliation a person should tolerate from the President is one that’s really ultimately between them and their consciences. I don’t think Rex Tillerson has done anything dishonorable that demands his resignation. I just don’t understand why anybody would want to subject themselves to that.
Preet Bharara: I’m gonna move to some—
Ben Wittes: You didn’t ask me about General Mattis.
Preet Bharara: Because I want—we’re running out–All right. Okay.
Ben Wittes: Please ask me about General Mattis.
Preet Bharara: How about General Mattis?
Ben Wittes: General Mattis should not resign under any circumstances. It is essential to the national security of the United States that we have a head of the Defense Department in whom people can repose confidence, and to act as an insulation between the President and the day-to-day operations of the U.S. military.
Preet Bharara: As Bob Corker, Senator Bob Corker, has said, protecting us from chaos.
Ben Wittes: Yes.
Preet Bharara: Okay. Since we’re continuing the list, McMaster. General McMaster.
Ben Wittes: H.R. McMaster is in a very difficult position and I would not trade places with him in a hundred years. I’m very glad he is there rather than General Flynn.
Preet Bharara: Amen. But you once said, ‘I don’t lead any kind of resistance.” And you said also, “The day we have sane government again, including, by the way, sane conservative government, I’m going back to being an apologist for the national security state.”
Ben Wittes: Yup.
Preet Bharara: What do you mean by that?
Ben Wittes: So, look. I mean, I understand that a lot of people who tweet under the hash tag resistance, who think of themselves as the left and who think of the opposition as kind of seamlessly connected with a kind of liberal politics or a leftist politics. And I don’t think about it that way. I actually think the days in which the ACLU and I spent a lot of time butting heads together over the issues that we butted heads over, like Guantanamo, like drone strikes, like surveillance authorities—that’s a healthy environment in which Jamil Jaffer or Steve Vladeck and I are arguing all the time over those issues. Today, I don’t find a lot of cause—it’s not that I don’t agree—it’s not that I’ve come to agree with them about all those issues, or that they’ve come to agree with me.
Preet Bharara: Then what is it?
Ben Wittes: It’s that there is an antecedent set of democratic concerns and that faced with a frankly undemocratic and not decent political movement, a group of conservatives and a group of liberals find themselves sounding indistinguishable from one another. And they’ve all noticed that, by the way. It’s not that the Bill Crystals and David Frums of the world have stopped believing things that make them politically different from you, or that you’ve stopped believing things that make you different from them.
Preet Bharara: Right.
Ben Wittes: But I think there’s been a pretty wide agreement that there are this deep set of antecedent values.
Preet Bharara: So, what are—so, let’s talk about those. Top three antecedent values.
Ben Wittes: Okay. Top three. First of all, decency.
Preet Bharara: Yeah.
Ben Wittes: I think we actually—we try to develop a sort of highfalutin vocabulary for this. But one of the things that’s so objectionable about Donald Trump is that he’s not decent. He’s nasty, and he’s, like, mean.
Preet Bharara: While also accusing other people of being nasty and mean, right?
Ben Wittes: Exactly.
Preet Bharara: I think—didn’t he call Hillary Clinton nasty?
Ben Wittes: Yes. And I think that general sense that there’s a limit to the rough and tumble of politics, that you shouldn’t lie constantly. Everybody accepts that politicians lie a bit, right?
Preet Bharara: Right.
Ben Wittes: That we stretch the truth.
Preet Bharara: Like, what’s the quota per day? Seven? 13?
Ben Wittes: How about, if you have to ask the question, it’s too many.
Preet Bharara: Yeah.
Ben Wittes: Okay? If the—the concept in law is that there’s a presumption of regularity that attaches to an executive action, right? How about if you lie so much that no one will attach a presumption of regularity to what you do or say? You’re lying way too much.
Preet Bharara: And that’s a non-ideological, nonpartisan value.
Ben Wittes: Yes. Number one is decency.
Preet Bharara: My favorite quote by Kurt Vonnegut goes something like this: “A little less love, a little more common decency.”
Ben Wittes: Fair enough. I buy it.
Preet Bharara: Second value.
Preet Bharara: Second value: institutions and their functions. You’ve made this point repeatedly on your podcast about the Justice Department and prosecutorial institutions and investigative institutions. That was a concern that I had about Trump early in the campaign. I wrote a set of posts about Trump and the powers of the presidency. And the first one was focused on exactly that problem, the problem of prosecutorial discretion. You can play out the same concern over the performance of a bunch of other, particularly intelligence, agencies. But the basic institutional functioning of government in a fashion that is consistent with an oath of office to preserve and protect the Constitution—I don’t think there’s any left/right valence to that concern. It’s a concern that flows out of the words and behavior of the individual person of the President.
Preet Bharara: Third value.
Ben Wittes: Third value is respect for the substantive protections of the Constitution, and to certain degree, the law beyond the Constitution. We have a president of the United States who, the other day, unselfconsciously said that it was terrible that we have a First Amendment, and that NBC gets to say on television what they want to. And he’s in one way or another said the same thing about the Washington Post over and over again, and other newspapers.
One of the things that’s so objectionable about Donald Trump is that he’s not decent.
Preet Bharara: I want to ask you about Russia, and specifically about Vladimir Putin, who a lot of people have concerns about. Most rational, I think, observers in the United States have concerns about the way he runs his country. There’s one person who never criticizes him and that man is Donald Trump. You, by the way, among the many aspects of your bio that are admirable and impressive, you’re a black belt in Tae Kwon Do.
Ben Wittes: And in Aikido.
Preet Bharara: I’m a black belt in neither of those things. I know it shocks you to hear that. But you have—
Ben Wittes: It’s never too late to start training.
Preet Bharara: I’m an old man now. But you have challenged Vladimir Putin to fight. And I just want to read what you have written about with respect to your challenge to Vladimir Putin. And you have written, “So let me be clear. This is not a joke. I am prepared to meet Putin mano a mano any time, any place where he lacks the jurisdiction to have me arrested.” So, that’s smart. “I’m flexible about the style, the rules of the fight, and just about everything else. I am sure the Kremlin and I can work out all details once we agree on the basic principle: Putin needs either to fight this”—referring to yourself—“this reasonably well-trained but not especially expert middle-aged desk worker in a situation in which I’m actually allowed to win without fear of reprisal, or he should face condemnation worldwide as a wuss and a phony.”
Ben Wittes: So, this challenge to Putin long predates Trump. I have long been offended by the way Putin uses martial arts videos as a propaganda device to create a kind of aura of hyper-masculinity. And I think that this is a part of his domestic bullying deeply related to the mistreatment of the LGBT community domestically and the menacing of neighbors internationally. And one of the things that troubles me about it is that this kind of propaganda actually works. And if you bombard the public over time with lots of manly videos of yourself throwing people, sweating in the ring, and scoring hockey goals, and carrying a tiger, it actually does affect the way people understand you. And—
Preet Bharara: Yeah. But on the range of things—just to push back a little bit—on the range of things to be offended by with respect to Vladimir Putin, are these staged fights where he’s shirtless, are they high up on the list? I mean, isn’t that a little bit more like Kim Jong Un getting the hole in one every time he plays golf?
Ben Wittes: So, I agree that if that were all he did, there would be nothing to talk about. It would just be an eccentricity. And the trouble is that cults of personality require the cult. And this is a component of the cult. And it’s a component of the cult that people actually believe at some level. So, when I posted this—first started tweeting about it, that Putin should fight me, a lot of people would call me up or write me these private notes that like, “He’s really good. You might get beaten up.”
Preet Bharara: And what did—you said, no, I can kick his ass?
Ben Wittes: Yeah. No, I—look, I’m almost 20 years younger than Putin.
Preet Bharara: You look good, I must say.
Ben Wittes: I don’t doubt that he once was a very fine judo practitioner. But I don’t actually believe he’d last a minute in the ring with me. And—
Preet Bharara: Can I tell you—so, Ben Wittes Trash Talk is the best trash talk.
Ben Wittes: I’m just telling you — this is my objective analysis. I think if Putin and I went a few rounds, it would not end well for him.
Preet Bharara: How many rounds do you think it would take?
Ben Wittes: I think I could finish him pretty quick. One round.
Preet Bharara: One round.
Ben Wittes: Let me tell you how it would actually go, okay? So, Putin’s trained in judo. And to throw somebody in judo, you actually have to grab them, right?
Preet Bharara: Yeah.
Ben Wittes: The moment he got close enough to grab me, I would sidekick him in the chest, and we’d be done.
Preet Bharara: Well, how do you defend against a sidekick in the chest?
Ben Wittes: Well, you have to be fast enough to not be there when the foot arrives.
Preet Bharara: Is he bigger than you?
Ben Wittes: I think we’re—he’s not huge.
I think if Putin and I went a few rounds, it would not end well for him.
Preet Bharara: Yeah.
Ben Wittes: But I’m just really confident in one-on-one, mano a mano with Putin, I’m gonna be fine.
Preet Bharara: So, you have made very clear how any fight between you and Putin will end. My question to you is, how do you think the Trump presidency will end?
Ben Wittes: I got out of the prediction business with respect to Donald Trump a long time ago. I didn’t think it was possible for him to get the nomination. He got the nomination. I certainly didn’t think it was possible for him to win the presidency. And I took that possibility, by the way, much more seriously than most people did, but I didn’t think it was possible. And he won. And I would—if you had told me that somebody would have the disaster of a first year in office that he’s had in terms of any conventional performance metric, and have a 37, 38, 39 percent approval rating that appears to be relatively stable, I would have said you were insane. And that is the reality in which we’re living. So, I do not do predictions about Donald Trump. What I will say is that objectively, he has a very difficult set of legal problems ahead of him. Those problems are manageable on the Congressional side for as long as his party controls the Congress and chooses to tolerate him, which the Republican Party appears to be willing to do. They are much less manageable if you imagine a relatively small swing in the House of Representatives a year from now. And so, I think he’s got a very tough road ahead of him, both from Bob Mueller, potentially, and from Congress, potentially. And I don’t, beyond that, flatter myself that I have any crystal ball worth looking into.
Preet Bharara: Fair enough. Benjamin Wittes, thank you for being with us.
Ben Wittes: It’s a pleasure to be here.
[End of Audio]
Preet Bharara’s new podcast, “Stay Tuned with Preet” on CAFE, is now live. Listen here on Apple Podcasts.