Preet Bharara:

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

Chuck Rosenberg:

I wouldn’t have charged either case if I were Jack Smith unless I believed that I would win a conviction at trial. So it’s like trying to choose a favorite child. You would hope he has confidence and faith in both, and I still think the January 6th case is the most compelling.

Preet Bharara:

That’s Chuck Rosenberg. He’s had a distinguished career in law enforcement, serving as the US attorney for the Eastern District of Virginia and later for the Southern District of Texas. He also served two FBI directors, Robert Mueller and James Comey, and he’s also been the head of the DEA.

As the criminal cases against Trump unfold and continue to dominate the headlines, we reflect on where we stand and what’s to come. We also try to make sense of the unusual developments in the Hunter Biden case and debate whether repeatedly resorting to special counsels undermines the integrity of the Justice Department.

As a note, as you might expect, we’ve got a ton of listener questions this week about the Trump prosecutions and the Hunter Biden investigation. We’ll cover most, if not all of that ground in my conversation with Chuck Rosenberg. That’s coming up. Stay tuned.

THE INTERVIEW

Chuck Rosenberg is a friend and trusted former colleague of mine at the Justice Department, where we both served as US Attorneys. He joins me to make sense of the cases against Trump and Hunter Biden that are shaping our politics as the presidential election looms closer.

Chuck Rosenberg, welcome back to the show, my friend.

Chuck Rosenberg:

It’s a pleasure to be back with you, Preet.

Preet Bharara:

It’s been a long time. I think you were one of the early guests, way before the pandemic, at a time when I did every interview in person. I flew to DC, and I don’t know if you remember this. We borrowed the studio at NPR to tape the interview.

Chuck Rosenberg:

I do remember that, and it has been a long time. It’s emblematic of the fact that I hardly ever get invited anywhere for anything.

Preet Bharara:

Well, I’ve been seeing you get invited on the televisions to talk about all the things that I talk about and get asked about and Joyce Vance and others and the CAFE family get asked about. But before I do any of that, can I ask you a question? The question is … Let’s be honest about it. Do you get tired of talking about the Trump investigations and indictments ever?

Chuck Rosenberg:

I do.

Preet Bharara:

What are we to make of that?

Chuck Rosenberg:

Mr. Trump is draining, and there’s a part of me that just wishes he would go away. Not to get overly philosophical, Preet, but I’m a big fan of what President Ford did when he pardoned Richard Nixon. Richard Nixon, to his credit, just went away, and I sometimes think if we could have that same deal, I would be all for it.

Preet Bharara:

But you are not saying that in the absence of Trump withdrawing from running again or leaving public life or even expressing some remorse and apology for his conduct, you’re not saying he should be pardoned in the absence of that, right? So we’re clear, and if you have letters, folks, send them to Chuck Rosenberg.

Chuck Rosenberg:

No, I agree. I’m not saying that. I’m just saying that there are times when I wish he would do what Mr. Nixon did, which is disappear from public life.

Preet Bharara:

Right, because we’re going to get to the timing of these things because we get a lot of questions about the timing, as if you and I have a crystal ball and can tell when which case is going to be tried, if ever. But assuming that all these four trials go at some point and assuming further that Trump does not become the next president, and we’ll do the counterfactual in a moment, these are going to be with us for years to come, right?

Chuck Rosenberg:

At least.

Preet Bharara:

At least. What’s more than years, decades?

Chuck Rosenberg:

Decades to come. No, it’s going to be with us for a long time. Just getting four cases to trial, two in the federal system and one each in two different states is going to take a long time. There might be interlocutory appeals. There’ll certainly be appeals if there are convictions. I can’t tell you how many and how long it will take. But it will be in technical terms quite a while.

Preet Bharara:

So let me ask you a question that I get and I don’t love, but I get to ask questions on this program. Of the four pending indictments against Donald Trump, the Georgia one that just was issued, the Manhattan DA’s office one, which was the first one, and then the two federal ones about January 6th and about the classified documents, and I want to choose my words carefully, in your mind … There are different ways of ranking them, if one chooses to do that. Which of them is the cleanest and simplest to present to a jury, you think?

Chuck Rosenberg:

Clean and simple. It might be the case that’s the least compelling in my view, the case in Manhattan.

Preet Bharara:

Really?

Chuck Rosenberg:

Yeah.

Preet Bharara:

I want to hear why you say that. I was going to vote for the classified documents case. Seems simple. There’s not so much extraneous stuff.

Chuck Rosenberg:

The only reason I didn’t vote for that one is because it involves CIPA proceedings, and I don’t think those are particularly complex. But I do think they are cumbersome.

Preet Bharara:

Right, and by CIPA, just so people can be reminded, Classified Information Procedures Act that dictates how you handle very sensitive classified information in a court proceeding.

Chuck Rosenberg:

That’s right. Taking classified information and sanitizing it in a way for public consumption. So if what you’re saying is that the federal case in the Southern District of Florida that involves the unlawful retention of classified information and efforts to hide those documents from federal authorities is compelling, I agree. It’s relatively straightforward. But the state case in Manhattan seems to be simpler. I don’t mean more compelling, but simpler, fewer witnesses. If I remember correctly-

Preet Bharara:

Yeah, because it’s a misdemeanor.

Chuck Rosenberg:

It’s a misdemeanor with felony antenna. But it has, I think, 11 checks that were at issue in which Mr. Trump through others tried to pay hush money to an adult film actress. That’s it.

Preet Bharara:

So you said you didn’t necessarily mean it was the most compelling. Which is the most compelling?

Chuck Rosenberg:

Correct. Which is the most compelling? Not the Manhattan case. In some ways, I think that’s the least compelling.

Preet Bharara:

By compelling, is part of what you mean seriousness?

Chuck Rosenberg:

Right. People use lots of words to describe these cases, and so I want to be precise. The Manhattan case, I don’t think it’s necessarily a weak case because weak in my mind goes to the strength of the evidence.

Preet Bharara:

Whatever the case is, is it provable or not?

Chuck Rosenberg:

Correct. You could have a very serious crime, a homicide, which is weak because you have no forensics and no eyewitness and you never found the gun. It’s an important case. It’s a compelling case. But it may be a weak case in evidentiary terms. The New York case doesn’t strike me as weak. It just strikes me as less compelling.

The most compelling case, which I think was your question, Preet, 10 or 12 minutes ago, I believe is the federal case in which Mr. Trump was indicted in connection with his efforts to undermine the peaceful transfer of power and to thwart a fair and free election. I can’t imagine anything more serious, anything more compelling than a sitting President of the United States trying to undermine our democracy.

Preet Bharara:

I’m going to ask you one more question about these and how you see them relative to each other because you mentioned the idea of weak cases and strong cases. Which is the strongest case of the four?

Chuck Rosenberg:

Well, let’s put aside the Manhattan case for a moment. I don’t like these rankings because what do I know?

Preet Bharara:

I know. I hate them, too, but I keep getting asked, so I’m going to pass the buck to you.

Chuck Rosenberg:

I feel like the guy in the bleachers yelling at the umpire for a missed strike call. He has a better view of the game than I do. I may have an opinion and I may understand baseball, but I’m not standing behind home plate.

So all right. With that caveat, the classified documents case indicted in the Southern District of Florida strikes me as a strong and compelling case because you have obstruction of justice. At least it’s alleged, and when you have obstruction, Preet, as you well know, that helps to events or demonstrate intent. When folks take steps to undermine the investigation, to obstruct the investigation, it’s usually because there’s something there. So in some ways, I think that’s a straightforward and compelling case. Again, if your question is what’s the most compelling case, what’s the most important charge, I still go back to efforts by a President to undermine a fair and free election.

Preet Bharara:

I totally agree with that. But when we’re talking about strength of the case, one of the reasons that I tend to agree with you that the strongest one for purposes of proof and legal argument is the classified documents case is when you ask the question, “What are the defenses?,” it’s not just how compelling the case is. How compelling are the defenses?

Chuck Rosenberg:

That’s right.

Preet Bharara:

I can see defenses, legal and factual, going to mental state and other issues with some of the other matters. I just don’t see, particularly in light of the revelation in the last number of days that Mark Meadows himself reportedly told the January 6th Committee that he never heard anybody talk about a standing order to declassify or that Trump declassified any documents, and he had something to say in an earlier draft of his book about that classified document relating to an attack plan on Iran. You have also Donald Trump in his own words in a tape recording in the classified documents case. All of that stuff is incredibly compelling, given what has been charged. I don’t really see a way out for Trump on that one. I can see some ways out on the other ones. How do you react to that analysis?

Chuck Rosenberg:

I completely agree with you, and the fact that I completely agree with you worries me deeply.

Preet Bharara:

It must be wrong. It must be totally wrong.

Chuck Rosenberg:

No. The January 6th case, Preet, the federal case, there are colorable defenses. I think you’re probably referring to an advice of counsel defense, and while it’s imperfect and while Mr. Trump may have difficulties presenting it, and we can talk about that, it’s there. It exists. All cases have defenses, even cases that you and I have tried that should never have gone to trial. Everyone has a defense. So the fact that Mr. Trump has a defense isn’t a surprise. I think the question is does he have a credible defense? The answer is, “We’ll see.”

But in the January 6th federal case, and perhaps we should talk about advice of counsel at this point, if you’re my lawyer, Preet, and you tell me that I can do something and I do it and I get indicted for it, but I took your advice and followed your advice in good faith, assuming you’re not an unindicted co-conspirator and you’re available to testify at my trial, I might have a compelling advice of counsel defense. I told you everything. You gave me your best advice. I did it, and that suggests, I think, that I didn’t have the requisite intent.

The problem Mr. Trump is going to have, of course, and I’d love to have your view on this, is that in the January 6th indictment, there are examples cited, numerous examples, of people who told him that he had lost the election, that his fake elector scheme was illegal and would never work, and folks ranging from the Attorney General of the United States to the Director of National Intelligence, his Vice President, folks in his White House Counsel’s Office. So even though there was some number of sketchy characters telling him that he had this path and he could challenge the election and he might be able to overturn the results, it’s hard for me to believe that a jury will believe that he was following that advice in good faith.

Preet Bharara:

Right, and some of the lawyers who told him that it was appropriate to go forward are in fact identified as unindicted co-conspirators in the document itself in the indictment.

Chuck Rosenberg:

That’s right, and that’s a huge big deal. So let me go back to my earlier example, Preet. I’m indicted for relying on advice you gave me. I followed your advice in good faith. You are presumably available at my trial to tell the ladies and gentlemen of the jury that you were my lawyer and you did tell me that X was okay, and you would tell me that again because you actually honestly believed it. Then I testified that I took your advice and I followed it, and therefore my lawyer would argue at trial I don’t have the requisite intent. That’s what an advice of counsel defense looks like, and maybe it works to get me acquitted.

The problem Mr. Trump has, to your point, Preet, it’s a really important one, is that the people he relied on are unindicted co-conspirators in that federal case that was filed in the District of Columbia, which means it’s going to be awfully hard for them to get on the stand and talk about the advice they gave to Mr. Trump. Why? Because they all have Fifth Amendment problems, meaning truthful answers to questions they are asked could end up incriminating them. So how does Mr. Trump and his lawyers contend with that? Because the lawyers that he ostensibly relied on for advice might not be available at his trial. Maybe that means he has to testify, and that’s going to be a very difficult path for him.

Preet Bharara:

Yeah. What’s interesting, I think it’s worth pausing on this for laypeople, this advice of counsel defense, because it makes perfect sense. It seems fair and just that if you are honest with your lawyer or, for that matter, in a different kind of case your accountant with respect to paying taxes and you’re acting in good faith and the lawyer gives you advice and you rely on it, your liberty shouldn’t be taken away if you’re in good faith relying on the advice of an expert.

However, for various good reasons, the law doesn’t distinguish between an excellent lawyer and a crappy lawyer. It does distinguish between an honest lawyer and a dishonest lawyer who’s conspiring with you to help you commit the crime. Some of that may be going on here, but this is an issue that comes up. As a policy matter, I wonder if you’ve ever thought about this or talked about this. There are people in the world … I’m not saying Donald Trump is one of them necessarily in this case, but maybe he is.

You go to a very fine lawyer and legal mind, like Chuck Rosenberg, and say, “I want to do X.” Chuck Rosenberg says, who has had a position of trust multiple times over multiple administrations, “No, I don’t think you can do that.” That’s not the end of the story. Client can go to another lawyer who, to use a technical legal term, is schlocky, and that lawyer says you can do the thing, or sometimes it’s the case they go to Chuck Rosenberg, they go to four other lawyers, and they lawyer shop until they get someone to say, who has a law degree and has been admitted to the bar, “Can I do X?” The lawyer says, “I do X.” Is there a problem with the advice of counsel defense in that scenario?

Chuck Rosenberg:

Well, it’s less compelling, right? So if you go to 30 lawyers and they all say no and then you go, in your words, Preet, to a schlocky lawyer and he says yes and you rely on that, I think that undercuts the whole good faith argument.

Preet Bharara:

Well, if that can be brought in, if that’s known.

Chuck Rosenberg:

But you’re talking about now from a policy perspective.

Preet Bharara:

Yeah.

Chuck Rosenberg:

Sure. That undermines good faith. Now, whether or not it’s inducible in a court of law and how much of that the jury is going to hear …

Preet Bharara:

This is part of the explanation for one or more players. Now we’re getting far afield, but while we’re on it just for a second, in the financial crisis, there were people who relied on dubious legal opinions after being told no by certain law firms. They went elsewhere. In at least one case, they went abroad for legal opinion. That still carries weight.

Chuck Rosenberg:

I would say it this way. If you relied on a bad lawyer but in good faith, then the defense ought to be available to you. I you relied on a good lawyer but in bad faith, then it ought not be.

Preet Bharara:

I like that. I don’t know if it always plays out that way purely in court. But that’s a good formulation.

I’ll be right back with Chuck Rosenberg after this.

So you have four pending indictments from three different agencies, but four different judges. With respect to the two federal cases, the January 6th indictment and the classified documents indictment, part of the reason I was asking those questions earlier about which is more compelling and which is more streamlined and which is more easy to present to a jury, the judges are going to decide. There are two different judges in the federal cases.

But to the extent, let’s say, you’re Jack Smith and you have some ability to try to lean on one trial going earlier than the other trial, and they’ve already staked out their position that they want the January 6th trial to go ahead at the earliest possible date. If you’re Jack Smith, is that the order in which you would want things to happen because it’s the most compelling and important case, or is there some thought if he had the ability to control it, maybe he doesn’t, that you go first with the classified documents case because it’s easier and more likely to result in a conviction?

Chuck Rosenberg:

Yeah, great question. I wouldn’t have charged either case if I were Jack Smith unless I believe that I would win a conviction at trial. So it’s like trying to choose a favorite child. You would hope he has confidence and faith in both, and I still think the January 6th case is the most compelling case for the reasons we talked about earlier, an effort to undermine our democracy. So that is the case I would proceed with first. It may also be true that he has a better draw with the federal district court judge in Washington, DC than he does in Florida.

Preet Bharara:

That’s really true. You just reminded me of a … I don’t know if it’s a joke, but it’s a statement on the issue of favorite children. Somebody once said to me pretty recently, “If you thought your parents didn’t have a favorite child, you were the favorite child.”

Chuck Rosenberg:

My two sisters would probably tell you, Preet, that me, the oldest brother, the only brother was the favorite child. I don’t think I was. So maybe that just-

Preet Bharara:

Yeah, proves my point.

Chuck Rosenberg:

Maybe that just proves your point. Yeah.

Preet Bharara:

It proves the point. So just one more thing on scheduling and ordering. Is it weird that we have a system in which there’s no traffic cop to figure out who gets tried, when, and in what timetable?

Chuck Rosenberg:

Well, we have four traffic cops. Maybe that’s a better analogy, and no one traffic cop has any authority over any of the others. Is it weird? Well, this is such an unusual posture. I really can’t think of more than an example or two in all my time as a federal prosecutor where we needed a traffic cop. The fact that you need one here-

Preet Bharara:

The only one I can think of, and maybe I’m misremembering. Maybe I’m just remembering a turf battle, not actual cases being brought in multiple districts, was El Chapo.

Chuck Rosenberg:

Right.

Preet Bharara:

Was El Chapo charged in multiple districts, or am I just remembering that multiple districts fought to have the case, including mine?

Chuck Rosenberg:

I believe the latter, and I believe there is a traffic cop in that case. It’s the Attorney General of the United States.

Preet Bharara:

Because those were all federal cases.

Chuck Rosenberg:

Correct. But what you don’t have here is any judge with authority over any of the other judges. So yeah, it’s a more difficult situation. It’s so unusual that I’m not sure I would go about trying to fix it, at least not for the future.

Preet Bharara:

Do you agree with me, just as a matter of math? I was thinking about this. Let’s assume nothing goes before 2024, and I think that’s a safe assumption. You’ve got 10 months, basically, before the election. You have four trials. Each one of those trials is going to go a number of weeks. There’s no circumstance in which a trial is going to go at the same time as another trial because Donald Trump is a defendant in all four, and he can’t be physically present and participate in his defense in two places at once.

So already, just as a matter of calendar math, you’ve got four to eight weeks, something like that, for each trial. That’s a month or two times four. That’s four to eight months. You can also reasonably assume that each of the judges will not require a trial to begin the moment that the prior trial ends so that counsel can regroup and prepare. It’s lot of overlapping counsel, especially for Donald Trump. Literally as a mathematical calendar matter, put aside if any trials will happen, but do you agree that to a certainty, those four trials will all not happen and conclude before the next election?

Chuck Rosenberg:

I agree to a certainty. Not a chance.

Preet Bharara:

What do you think is the likelihood that we’ll have even one conclude?

Chuck Rosenberg:

The problem I have in trying to assess where we are and what might happen, Preet, is that I really, truly came from a district, the Eastern District of Virginia, which was really, truly the Rocket Docket-

Preet Bharara:

The Rocket Docket. That’s right.

Chuck Rosenberg:

… where continuances were extraordinarily rare, and cases went to trial quickly. So based on my experience, which may not be valuable, I think you could easily try two federal cases in the next six months. I think you could easily try two federal cases in the next four months. But that ain’t going to happen.

So I’m trying to put aside my experience in a district that moved unusually fast, and I think I read somewhere, doesn’t make it true, that jury selection in one of the Fulton County RICO cases that took place 8 or 10 years ago took months. Jury selection took months. So if that was true and it takes months just to see the jury, I can only imagine how long it would take to try the case, particularly if you still have 19 defendants by the time the case goes to trial.

By the way, I think that’s something worth talking about. Jack Smith in one federal case charged Mr. Trump alone and identified six unindicted co-conspirators. In another federal case, he charged Mr. Trump and then a valet and a property manager. But in Georgia, the state prosecutor charged Mr. Trump and 18 co-defendants.

Now, most cases narrow before trial. Lots of people recognize it’s in their best interest to plead guilty and cooperate. They’re incentivized to do that. They can mitigate any harm. They can serve less time in prison or no time in prison. But Mr. Trump is a different breed of cat, and I think some of the messages he has sent out, “If you come after me, I’m coming after you,” may not be designed for the prosecutors and the judges as much as they might be designed for his co-defendants. I wonder if we’re going to see that narrowing that you and I would normally expect when you indict a whole bunch of people. 19 becomes 13 becomes 7 becomes 3 by the time of trial. I wonder if that’s going to happen here.

Preet Bharara:

I wonder also. Going back to what we both agreed upon before, just to narrow this down, one or more trials cannot possibly commence and conclude before the next election. Then you have a transition period. Put that transition period aside for a moment, and now let’s imagine, although I hate to imagine it without a drink in my hand, that Donald Trump gets reelected. You have one or both of the federal trials pending. There are various ways that Trump can stymie those federal cases by installing an attorney general who tries to make it go away. Obviously, the court has ultimate control, but he can do things like that. He could engage in a self-pardon, and we can talk about how that would unfold because that’s a question that people have.

But the question I want to ask you is with respect to the federal case and also with respect to the two federal cases and also the state cases, if they’re still pending at the time that Donald Trump might reassume the presidency, is it not true that the Office of Legal Counsel opinion that prevented Bob Mueller from prosecuting Donald Trump while he was President also would prevent both federal prosecutors and state prosecutors from prosecuting further Donald Trump even if the indictments had already been filed, as has happened in this case? Am I right about that, or am I wrong about that?

Chuck Rosenberg:

No, I think you’re right about that. You invited me on your show. I can’t disagree with you, Preet. I’ll never get invited back. No, I think you’re right. I think the Office of Legal Counsel opinions, because there’s two of them, would preclude state or federal authorities from prosecuting a sitting President. So in theory, the cases could be held in abeyance until Mr. Trump finishes his second term. By the way, the Office of Legal Counsel policy doesn’t bind the courts. The courts could adjudicate the question.

Preet Bharara:

It’s never really been tested.

Chuck Rosenberg:

But it’s not been tested. Exactly.

Preet Bharara:

But everyone assume it to be true. By the way, unless there’s been a new opinion that we don’t know about or there’s one that’s being crafted, and I would actually urge the Department to think about doing that, revisiting it, because it’s been a while, if it’s the Department’s own policy, stated policy that you can’t prosecute a sitting President for various reasons, doesn’t Jack Smith have to stand down on his own if Donald Trump becomes President and his cases have not concluded? Even if they’ve concluded, by the way, the trials, I guess it’s a separate question about whether or not the appeals could proceed.

Chuck Rosenberg:

Yeah, I think of appeals as being part of the case. So I would imagine if you strictly adhere to the policy that the answer would be everything stops. So would Jack Smith have to abide Department of Justice policy as a special counsel? I think the answer is yes. In any event, he is supervised not on a day-to-day basis, but he is supervised by the Attorney General, who also must abide Department of Justice policy.

Preet Bharara:

This is all a lead-up to a question I have, and I’m very curious as to what you think about it. I’m of two minds about it. So if it is true that Jack Smith understands that in various ways, he could be stymied and may have to self-stymie, to coin a phrase, because of the Office of Legal Counsel opinion, I note the nature of the argument they have made to the court for a speedy trial to start as soon as January 2nd, 2024. They take great pains to say in a way that you don’t typically see that the speedy trial interest does not only lie in the defendant. It’s not just the defendant who generally gets the benefit of a speedy trial, but in the public, and they say things like, “Justice delayed is justice denied,” the old aphorism.

They say repeatedly the public interest is in getting this done quickly. What they don’t say expressly and what you and I have said expressly a moment ago is part of the reason we need a speedy trial is so justice can be done because if we don’t get one before the election and Donald Trump is reelected, we know to a certainty that we have to pause.

I get there’s downsides to parading in front of the public this dire circumstance of not being able to proceed, and maybe you don’t want to preview that. Maybe there will be a new Office of Legal Counsel opinion. But putting even aside that legal counsel opinion, Donald Trump’s people have basically made clear that they will do things to derail the federal prosecution if he becomes President again. If you were running the show, would you be more explicit about that eventuality when you’re pushing for a speedy trial before either of the judges?

Chuck Rosenberg:

Yes, and by the way, why do you say you’re of two minds? I’m not being sarcastic. It seems like you are-

Preet Bharara:

Yeah, in the articulation of it out loud, the articulation of it out loud and because the great Chuck Rosenberg agrees with me, I was hedging. I think you do say that, and I’ve mentioned this to a few people. No one has fully agreed with me until just now. It’s the elephant in the room. It’s the elephant in the room. Literally it is true that if we don’t get this thing done …

Now, there’s a countervailing factor, and I wonder what you think about this as a matter of equity. One could say especially with respect to the January 6th indictment that the reason we’re in this pickle is because the department delayed in beginning the investigation. So the question is should that revert to the benefit of Donald Trump because there was a delay or the other way around because Donald Trump long had notice from the January 6th Committee hearings and everything else that these issues were out there?

Chuck Rosenberg:

Yeah, I don’t see delay at the Department as something that ought to help or hurt Mr. Trump. It is what it is. With the appointment of Jack Smith as Special Counsel, they moved with alacrity. I think that’s a fair way to describe it. I’ve always thought as a prosecutor that you ought to be as clear as you can, as honest and clear and forthright with the Court and with the public. Now, maybe we’re wrong. Maybe that’s not part of his thinking. Maybe he’s not worried about what happens if Mr. Trump is reelected. If that’s the case, fine. So be it. Then there’s nothing more to say.

Preet Bharara:

I don’t know why he wouldn’t be.

Chuck Rosenberg:

But if you want a speedy trial because you want a speedy trial, that’s fine. But if part of the reason is, as you’ve outlined, Preet, that he’s actually worried about that because it could put these proceedings on hold for four years, I would say that.

Preet Bharara:

Yeah. Okay, good. So let me try another hypothetical with you, and then we’ll get to some other questions. So this idea of the self-pardon, that’s very esoteric for people. That was addressed somewhere within the Department, I think in one of the Legal Counsel opinions with respect to Nixon because there was a concern, I guess, that was floated that he might attempt to pardon himself. The reasoning behind the opinion from the department is very sparse, and it basically, if I remember correctly, reflects the understanding that no man or anyone, no person, can be a judge in that person’s case. The self-pardon would implicate that bedrock principle of legal jurisprudence. But that’s not very full, and it’s never been tested.

So the way I have thought it would work is let’s say one of the federal cases is still pending, let’s say the Mar-a-Lago classified documents case, and it’s set to go to trial in March of 2025. Donald Trump says, “I pardon myself. I’m not showing up to court.” Is this how it would unfold? His lawyers would make an application to the court and say, “Dismiss the case because the defendant is now pardoned,” and the Department of Justice would say the opposite and say, “You can’t pardon yourself based on these bedrock principles of jurisprudence.” Then the judge would decide, and then each side would appeal, no matter what the result was.

Of course, obviously, none of this would really unfold this way. Why? Because Trump would direct his DOJ not to oppose a dismissal based on self-pardon. But I guess my question is if it did, how would the Supreme Court in your mind resolve the issue of whether a new sitting President Donald Trump could pardon himself? It may be moot because we’ve already decided that whether or not he can pardon himself, the prosecution can’t proceed because of the preexisting OLC opinion.

Chuck Rosenberg:

By the way, what is to preclude his lawyers right now from filing a motion in his two federal cases right now, saying that Mr. Trump pardoned himself three minutes before noon on his last day in office?

Preet Bharara:

So we speculated about that, and I think there’s a matter of proof there. What is the evidence? What is the extrinsic evidence that he did that? It sounds a lot like the “I telepathically declassified documents.”

Chuck Rosenberg:

Oh, so now you want proof, Preet. Okay.

Preet Bharara:

I do. I do.

Chuck Rosenberg:

So let me just say this. The Constitution doesn’t say what form a pardon should take, and historically, it’s been papered. But an oral pardon would be constitutionally sound. What you’re saying is that it would be a proof issue, and I agree. But my question was a little bit different. What would preclude his lawyers from making that argument in court? Your answer might be, “Well, there’s no proof.” But I guess Mr. Trump could sign an affidavit saying that in fact that’s what he did and he just didn’t tell anyone. Maybe he told his wife.

Preet Bharara:

All right. Let’s play it out. You’re Trump’s lawyer, and you’ve been Trump’s lawyer for some months. This is fun. Maybe he listens to the podcast, like, “Holy crap.”

Chuck Rosenberg:

Highly likely, highly like.

Preet Bharara:

“Rosenberg is right.” He walks into a meeting with Todd Blanche, former SDNY, as I’ve mentioned before, and says, “You know what? I forgot to mention something. I pardoned myself for all things in anticipation of any kind of prosecution on January 19th before I left office.” You are the lawyer. You’re Todd. Do you file the affidavit, or as a responsible lawyer, do you not believe your client, particularly when he can offer no proof of that, and refuse to do that?

Chuck Rosenberg:

Can I just say that I would never be his lawyer, Preet?

Preet Bharara:

You can say that. It’s a hypo.

Chuck Rosenberg:

I would not file it because I believe as a lawyer, you’re an officer of the court, and you have an obligation to the court to file motions and make arguments where you can prove it, where you can justify it. There has to be something there. Now, what if he comes in, Preet, with his son-in-law and his daughter and his wife and his son and they all say, “It’s weird, but now that you ask, we were there, and that’s what happened”?

Preet Bharara:

Yeah, at some point, it’s not credible, although look. The Kraken lawyers would’ve done it, and they did do things like that.

Chuck Rosenberg:

I wouldn’t do it. That doesn’t mean someone else wouldn’t do it. By the way, I’m not casting aspersions on Mr. Blanche. I don’t know the guy. I’ve never met him.

Preet Bharara:

I don’t think he would do it, either. I don’t think he would do it, either.

Chuck Rosenberg:

I think most lawyers would not do that because you need some good faith basis. There we go back to that good faith formulation. But I don’t know that means that no lawyer would do it.

Preet Bharara:

I’ll be right back with more of my conversation with Chuck Rosenberg.

I want to take a step back for a moment and talk about the special counsel designation generally because I have heard people say, including people who are Democrats and don’t like Donald Trump, “What’s the deal with so many special counsels?,” the view being it’s a bit of an abdication of responsibility on the part of the Attorney General, these people say, to every time there’s some heat or there’s a football, political football implicated by an investigation or prosecution, there’s another special counsel. You said recently, “I worry institutionally whether having so many special counsel under so many ‘sets of extraordinary circumstances’ corrodes the Department.” What’d you mean by that?

Chuck Rosenberg:

So we’ve had three special counsel in the last 12 months. What would the plural be of special counsel, special counsels or special counsel?

Preet Bharara:

No, I’m going to go with special counsels.

Chuck Rosenberg:

I think that’s right. I know it’s attorneys general, which has always thrown me a bit, but we’ve had three-

Preet Bharara:

Yes, and mothers-in-law.

Chuck Rosenberg:

Whatever it is, we’ve had 3 of them in the past 12 months. That’s a lot of extraordinary circumstances. We’ve had five of them in the last six years. The reason I think it can be corrosive, and again, this is not a comment on Mr. Smith or Mr. Hur or Bob Mueller or anybody who served as Special Counsel, is that you’re taking away from the Department the biggest, most difficult cases because I guess as Attorney General, you think that the Department can’t handle the biggest, most difficult cases under extraordinary circumstances.

I guess my argument, and I’m just a career guy there, is that that’s exactly what the Department was designed to do. You and I have talked about this, Preet. The Department of Justice by design has an extraordinarily thin political layer precisely so the Department of Justice can handle big, difficult cases, even under extraordinary circumstances. Let’s look at the FBI. The FBI has about 38,000 men and women who work there. How many of those FBI employees, Preet, are politically appointed?

Preet Bharara:

Just one.

Chuck Rosenberg:

Right, and so you would also know there are 93 US Attorney’s Offices in the country. At most, each of those US Attorney’s Offices has one person who’s politically appointed. At any given time, many of those offices have zero. So what are we trying to protect and from whom? Do we really believe that the FBI and the US Attorney community is incapable of doing big, complex, sensitive cases? I don’t, and so that’s what I worry about, that we are marching toward a situation where everything is extraordinary and everything is taken out of the Department of Justice, which is designed to be independent. By the way, I’m not sure special counsels in any event have all that much insulation because they still report to an attorney general who is politically appointed.

Preet Bharara:

But they have to write a report. Doesn’t that matter?

Chuck Rosenberg:

It does. Reports matter. I read the Mueller report. I might be one of seven people on the planet.

Preet Bharara:

I was one. I read that thing.

Chuck Rosenberg:

Do you agree, or am I overstating the concern?

Preet Bharara:

I don’t know. I think it is extraordinary times. We referenced that earlier when we said we’ve got four pending indictments against a former President of the United States, and at least I can’t think of any human, President or otherwise, who’s had four significant cases pending at the same time and coming to fruition in the same season.

Chuck Rosenberg:

But different question, Preet. Is the Department of Justice capable of handling that in the normal manner?

Preet Bharara:

Well, you take them one at a time, and then you end up, suddenly, you have a whole bunch. I think the appointment of Bob Mueller to be Special Counsel was appropriate, and the circumstances warranted it. So that’s one. Then you have the question of Jack Smith on the January 6th and on the Mar-a-Lago documents, and my sense has been that the reaction to that appointment was, “Why did you need it? Because the Department should be sufficiently independent.”

What we didn’t know at the time of the appointment was that classified documents had been found at places where they shouldn’t have been with respect to Joe Biden and Mike Pence. So my sense is that at some point, there was going to be the Department looking at the Trump Mar-a-Lago documents and also the Biden documents, probably with a sense, and I don’t want to overstate, that one is much more likely to be charged than the other because of the track record of conduct by the President as people and obstructing and all sorts of other bad things. How’s that going to look? It’s going to look better if I have a special counsel for both, and you can question whether that was necessary or not. But now then suddenly, you’re up to three, right?

Chuck Rosenberg:

But there’s a problem right there. So are you appointing the special counsel for the Biden document case so that the appointment of the special counsel for the Trump document case looks better?

Preet Bharara:

Yeah. Maybe. Maybe.

Chuck Rosenberg:

Isn’t that a problem?

Preet Bharara:

Maybe, but maybe the problem is the conduct of the former President, who puts into question this issue of the optics of a Department that’s been appointed by the sitting President, who’s implicated in something. The same is true for the special counsel David Weiss in the case of Hunter Biden because he’s the son of the … You have all these overlapping bad optics.

Chuck Rosenberg:

So let’s talk about optics for a minute. I have a lot of respect for Rob Hur, the Trump-appointed US Attorney in the District of Maryland who was appointed as Special Counsel to investigate Biden’s handling of classified information. I think Rob’s a terrific guy. I trust him completely, smart and principled. Was he chosen because he was a Trump appointee, and if he was, how are you insulating the Department from politics? David Weiss, I don’t know the gentleman, but he was a Trump-appointed US Attorney in the District of Delaware. Was he allowed to remain US Attorney to investigate Hunter Biden because he came from a different political party? If that’s the case, how are you insulating the Department from politics?

Preet Bharara:

Yeah, when put that way, maybe this is a form of insulation. It’s less about insulating the Department from politics then balancing the political optics. It’s a different thing, and that’s a problematic thing, as you point out.

Chuck Rosenberg:

I think it’s a problematic thing, and maybe I am the last person on the planet who believes that the Department of Justice is not a political animal and does not act for improper political reasons. I may truly be the last person on the planet. But I grew up in that institution, and I trust it.

Preet Bharara:

I don’t have an answer to the question. My observation is, and you and I both served in the Department for a long time, that in the vast majority of cases, by which I mean 99.999% of the cases, even the ones that involve political sensitivity, including cases that you and I have overseen against political figures, elected officials, governors as the Department has brought cases … We brought simultaneously a case against the Speaker of the Assembly of New York and the Senate Majority Leader, one a Democrat, one a Republican, and there’s some griping. Everyone says, “Witch hunt.”

But at the end of the day, in all of those cases, I think there was an understanding that when we put the proof in front of folks in court, they were righteous cases. You’re going to have people who are claiming politics because it’s in their interest to do so, and people abide by and respect the decisions.

Something different happens when it’s the head of a party, whether it’s someone who could become President, like Hillary Clinton, or someone who did become president, like Donald Trump, and all bets are off. People lose their mind. I sometimes worry that all these discussions we’re having about legal process and procedure, whether it’s fingerprinting and booking or no-knock warrants or whatever the case may be or servers that have been erased, through the prism of Hillary Clinton and Donald Trump, it gives people a distorted view of how things work. Is that fair or not?

Chuck Rosenberg:

Look, I think that’s fair. But I harken back to my time. Harken is a word I haven’t used ever in my life, but I harken back to my time when I was appointed as US Attorney by the president of one party, and we brought a case against a sitting member of Congress, who was a member of another party. Just as you experience, people claim it’s a witch hunt or that it’s done for political purposes. But when the case is tried and the member is convicted and people see the evidence, that all fades away. Why is that not extraordinary, and why shouldn’t we have had a special counsel under those circumstances to further insulate the Department from the accusations that we were acting in a political manner? You can’t just say, “Well, because you weren’t.” We weren’t. But if that isn’t a sufficient answer for my case or your case, why isn’t that a sufficient answer here?

Preet Bharara:

Look, the whole idea of a conflict of interest people sometimes misconstrue. It’s not just the conflict of interest that needs to be addressed. It’s the appearance of a conflict of interest. Once you use the word appearance, because I think there was some scoffing at the word optics before, literally once you use the word appearance of conflict, you’re talking about optics. It’s a natural part of how people think about things. So I don’t think it’s crazy. I’m not sure I agree that there should have been a special counsel in all of these circumstances. I take your point, and I worry about that corroding as well. But it doesn’t strike me as crazy to consider how something looks, given how we think about broadly the appearance of a conflict.

Chuck Rosenberg:

Fair. But there is not as much distance as people might imagine between a special counsel and the Attorney General. The Attorney General under the special counsel regulations-

Preet Bharara:

No, you’re right, because we got rid of the independent counsel. Correct.

Chuck Rosenberg:

So to finish the thought, under the special counsel regulations, the Attorney General can still decide that the case proceeds or doesn’t.

Preet Bharara:

Totally correct.

Chuck Rosenberg:

All right. All my friends at Maine Justice are going to hate me for this, but there is a salutary benefit. Are all benefits salutary?

Preet Bharara:

Yes, I think. Right. All right. You shouldn’t say naan bread. It’s redundant.

Chuck Rosenberg:

There is a benefit to the appointing a special counsel. By taking a case out of Maine Justice, where you have a lot of really smart people, and giving it to a special counsel, where you have a lot of really smart people, but who aren’t bound by that bureaucracy, they can move more quickly. Do you agree with that?

Preet Bharara:

No, I do agree with that. I think I agree with that. At the end of the day, really, Chuck, it doesn’t come down to the institution or the special counsel regulations or rules. I’ve always thought this, and I wrote a book that has this as a theme.

Chuck Rosenberg:

I read your book. It’s really good.

Preet Bharara:

Thank you. It depends on who the people are, and you can appoint a special counsel who is not acting in good faith and who does cut corners.

Chuck Rosenberg:

I completely-

Preet Bharara:

The quality of the choice to me matters more than making the choice.

Chuck Rosenberg:

So to finish your thought, which is always perilous, the independent counsel statute, which expired in 1999, would’ve been just fine if we had complete faith and confidence in the men and women appointed as independent counsel.

Preet Bharara:

Yeah. Look. Maybe we should talk about this for a second. The reason why we have this sort of balance of the special counsel, but with the proviso, as you keep referring to, that at the end of the day, the Attorney General, the person appointed, is politically accountable, and can be accountable to the President of the United States and can be removed from his or her duties is that you don’t want someone who is utterly independent because the track record for that has not been great. From the perspective of people on both sides of the aisle, you need some check on the check, right?

Chuck Rosenberg:

Right. By the way, your book was Doing Justice, and it was excellent.

Preet Bharara:

Thank you. Keep that in, and make that part of what Chuck said extra loud. So I have not spent time talking about the following, and I don’t want to get into the details of it. But I wonder if you have a quick view of an argument that Former Judge, Retired Judge Luttig and others have been making that based on the current record right now, separate and apart from the four cases that are proceeding that we’ve been discussing, that the 14th Amendment, a section of the 14th Amendment already disqualifies Donald Trump from running for office again because of his involvement in the insurrection of January 6th.

The reason I don’t talk about that, and I have great respect for the people who are advocating that argument, it’s not going to happen. There’s no procedure by which it will ever happen, and I understand the intellectual exercise. But it reminds me a bit of all the amount of energy and resources and speaking that was spilled on the 25th Amendment. That was never going to happen. This is never going to happen. Am I being unfair?

Chuck Rosenberg:

No, you’re referring to Section 3 of the 14th Amendment. It’s not self-executing. I’m not sure what the triggering mechanism would be, and I agree with you. It ain’t going to happen. Interesting intellectual exercise. It sounds a lot like my three years in law school. If you look at my transcript, you would see it didn’t go that well.

Preet Bharara:

Right. So I’ve been waiting to get to something else in the news, and that’s the Hunter Biden case. We’ve alluded to it a little bit when we talked about David Weiss, and I’ve been having very interesting offline discussions with smart people. I haven’t had this discussion with you. What went wrong in the plea, and whose fault was it? Was it the prosecutor’s fault? Was it the defendant’s fault? Was someone trying to get over on someone else? Was someone playing politics?

I think we can all agree that the judge who wouldn’t accept the plea because there was a lack of a meeting of the minds as between the government and Hunter Biden … Just to review for a second so people know what the issue is, Hunter Biden and his lawyer were taking the position that that guilty plea that he was agreeing to enter into, whatever you thought about it, whether you liked it or not, whether you thought it was soft or not, was going to fully resolve basically everything and the Department was done with him. The Department took the position that, “No, the investigation is ongoing, and this only resolves the tax issue and the gun issue. We still within our rights, if we saw fit, could bring a FARA, Foreign Agents Registration Act, case or some other case later.” How’d that blow up?

Chuck Rosenberg:

Wow. So I presume that both sides were well-represented, that you had good and experienced lawyers on both sides. The failure to have that meeting of the minds was very surprising to me, Preet. This is not some small issue that might have been or could have been overlooked. When someone’s pleading guilty, it’s because they want to resolve the pending case. Of course Mr. Biden would want to resolve any other potential case out there, and of course the government would want to limit the immunity, making it narrow rather than broad. So how did they swing and miss? I don’t have a good answer to that. The judge was right not to take the plea, and I gather the story will be told one day. But it’s not going to be told by me here because I don’t know.

Preet Bharara:

So Chuck, I think it’s worth getting in the weeds for just a second. The plea agreement that was never entered into says that “the United States agrees not to criminally prosecute Hunter Biden for any federal crimes encompassed by the attached statement of facts,” and obviously that statement of facts talks about his business. It talks about tax matters. It talks about the gun issues. The Hunter Biden folks say, “Well, obviously, I have immunity for any other things relating to tax matters and guns, et cetera in my business,” but also impliedly that he has coverage for all sorts of other things, too, including FARA.

Chuck Rosenberg:

Absolutely. I agree with your reading of it. But the prosecutor, when the judge questioned the parties in court, said, “No, that’s not our intent. We are not conferring broad immunity.”

Preet Bharara:

I guess the problem a little bit is … not the problem. She did the right thing, that people were trying to be a little bit cute, because as I think about this, it’s not clear to me what Hunter Biden’s lawyer could have done differently. But the thinking along these lines must’ve been something like … If it was able to be done in the following way, it might’ve made Hunter Biden happy, and that is you have language here that’s pretty good. Then you quietly plead guilty, even if it’s not completely, absolutely crystal clear, and you hope that the other cases go away.

Maybe you’ve been told. The speculation goes, “Look, we’re still going to wrap up the investigation of FARA and the other things, but we don’t see it happening. So I wouldn’t worry about it too much.” You also say, which I think has been said, “Who in their right mind, particularly if you’re Hunter Biden with all this attention and focus and the stakes that are involved, would plead on an interim basis with full knowledge that they had some likelihood of being charged for other crimes that were already under investigation by the government? It would be a ludicrous thing to do that.” Do you have a reaction to that?

Chuck Rosenberg:

No, I think that’s right, Preet. But again, I don’t know what happened. I don’t know why the two sides negotiated language. A plea agreement is a contract. You negotiate its terms. I don’t know why the two sides would have negotiated the contract and would not have come to an understanding on the breadth of the immunity provision. But yeah.

Preet Bharara:

Maybe they did.

Chuck Rosenberg:

As a tactical matter, I think the way you outlined it is right.

Preet Bharara:

The analogy I think of is legislation sometimes is deliberately vague so that you can get to an agreement on a statute.

Chuck Rosenberg:

Sure.

Preet Bharara:

For whatever reason here, obviously, the interest of Hunter Biden and his lawyer was to be done and to have closure and repose. Potentially, and this maybe is an implicit criticism of the prosecutors, on their side, we want to get this plea out of the way, have some accountability, but we don’t want to look like we too quickly close the books on everything. Later, quietly … Sometimes prosecutors do this. I don’t think it’s the most principled way of proceeding, but we get this guilty plea, and then we continue to try to uncover and dig as much as we can. Then later, when the spotlight is not so much on us, that’ll probably go away.

I think what both parties didn’t do a good job of anticipating is having a rigorous, careful judge who also is mindful of the stakes at issue and a tremendous amount of scrutiny that was going to come to bear and wanted a clear understanding. So if anybody was playing a little bit cute and hoping, “Let’s just get to another day,” which was in the interest of both the government and Hunter Biden, missed a step there.

Chuck Rosenberg:

I don’t like the idea of prosecutors being even a little bit cute. I don’t know that that’s what happened here, but it lends credence to your theory that it did.

Preet Bharara:

Chuck Rosenberg, my friend, thank you for joining us and sharing your insights.

Chuck Rosenberg:

My pleasure, Preet. Thanks for having me.

Preet Bharara:

My conversation with Chuck Rosenberg continues for members of the CAFE Insider community. In the bonus for insiders, we discuss how prosecutors use the Racketeer Influence and Corruption Organizations Act, more commonly known as RICO.

Chuck Rosenberg:

I don’t mean this to disparage it. Creative use of the Georgia RICO statute, but wholly proper under Georgia law. That doesn’t mean that the prosecutor wins and Mr. Trump gets convicted. It just means it’s properly brought.

Preet Bharara:

To try out the membership for just $1 for a month, head to cafe.com/insider. Again, that’s cafe.com/insider.

THE BUTTON

Before we end the show this week, I want to take a moment to talk about the awful wildfires in Maui, Hawai’i. As you all know, the fires started earlier this month and have ravaged the island. While most are now contained, some persist according to local officials. In the aftermath, communities and authorities have been evaluating the loss. Tragically, as of this moment, the fires have claimed at least 114 lives, making them the deadliest in the US in over a century. Maui County Mayor Richard Bissen recently revealed that 850 people remain unaccounted for, and search efforts are ongoing.

The resilience and bravery of the Maui community is remarkable. For instance, boat captain Chrissy Lovett navigated 80 mile per hour winds around flames to rescue a group of children who jumped into the water to escape a marina that caught fire. Online, thousands have mobilized to help reunite pets with their families, and there are folks working with the local shelters in Maui to offer mental health services to those affected. Amber Drake, a community leader, told the local TV station KSLTV, “I do know that we’ll come together and heal and rebuild. It’s just going to take a long time.” There are, of course, so many unsung heroes whose stories don’t make it into the news, most people, in fact.

While words may not suffice and certainly don’t suffice, I wanted to take this moment to salute the people of Maui for their unbreakable spirit. For listeners interested in assisting, we provided a number of links to learn more and donate in the show notes to this episode.

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

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 PreetBharara with the hashtag AskPreet. You can also now reach me on Threads, 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 letters@cafe.com.

Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The senior producers are Adam Waller and Matthew Billy. The CAFE team is Noa Azulai, David Kurlander, Nat Weiner, Jake Kaplan, Namita Shah, and Claudia Hernández. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay tuned.