Preet Bharara:

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

Jake Tapper:

Our political sphere never stops attracting people who think that they can get away with all sorts of misbehaviors, even ones that are illegal, even ones that completely go against the image of themselves that they have been trying to sell to the American people and perhaps successfully so.

Preet Bharara:

That’s Jake Tapper, chief Washington correspondent for CNN, host of The Lead with Jake Tapper and co-host of State of the Union. In addition to his political reporting, he’s interviewed multiple US presidents and foreign leaders. He has also published six books. Tapper came on Stay Tuned in July of 2020 to discuss The Outpost, his book about the war in Afghanistan, which was later adapted into a movie. His new show for CNN is called United States of Scandal. It explores six American political scandals through interviews with the people at the heart of them. The first two episodes from former Illinois Governor Rod Blagojevich, and former South Carolina Governor Mark Sanford aired on February 18th on CNN. We talk about political drama, what to expect in a 2024 presidential election, and the ongoing wars between Israel and Hamas and between Russia and Ukraine. That’s coming up. Stay tuned.

Q&A

Now, let’s get to your questions.

This question comes in an email from Laurie who asks, “Can you talk about how the Supreme Court selects which cases it decides to hear? Does the chief justice make the final call? Is there a formal process?” Laurie, that’s a great question. Sometimes it makes sense to take a step back and talk about how these processes work that we talk about all the time on television and on the podcast without necessarily going into how these things work. So let’s give it a shot. There is indeed a formal process. It’s not all up to the chief justice. He’s not that powerful. So appeals to the Supreme Court, as you may know, as opposed to other appellate courts are unique because they’re entirely discretionary, meaning the justices as a group, not just the chief, can pick and choose which cases they decide to hear an appeal, and they’re quite selective.

It’s very different with respect to other appellate courts. Federal, civil and criminal appeals by courts below the Supreme Court are generally heard anytime a losing party believes there’s been an incorrect application of the law or procedural problem or some other compelling reason why the decision was wrong or unjust. And these courts, these lower courts, not always, but for the most part, must accept these appeals. In other words, federal appellate courts below the Supreme Court have very little discretion over whether they can hear an appeal or not. Now, when it comes to the Supreme Court as an initial matter, in order for a case to be heard, a party first has to file a petition asking for something called a writ of certiorari. You may have heard that term used by experts from time to time often. Instead of certiorari, we say cert for short. From Latin, meaning to be more fully informed.

Now if the Supreme Court decides to grant that petition, it orders lower court to produce its record for review. But as I said earlier, the Supreme Court has complete discretion over which of these cases to review, and it typically grants certiorari or cert only for those cases with national significance or where federal appeals courts have rendered conflicting decisions, what’s called by experts and practitioners, a circuit split. And even then, it takes four of the nine justices doesn’t need to include the Chief Justice John Roberts, but four of the nine justices have to agree to grant cert before the full court will consider a matter. And just for some context here, the Supreme Court receives 7,000 petitions every year and grants only about 100 to 150 of them. So as I said, the Supreme Court is really quite selective when deciding which cases to review.

Now, there’s another very small category of matters within the court’s original jurisdiction, which means these cases go straight to the Supreme Court. They do not pass go. This category of cases involves either disputes between the states or disputes between ambassadors and other high ranking ministers. They don’t happen that often, but for example, just last term, the court decided New York versus New Jersey, which dealt with the issue of whether New Jersey could unilaterally withdraw from its Waterfront Commission Compact with New York. In those cases, the trial itself is held by the Supreme Court. There’s no lower court decision being reviewed and no cert petition, but this is a unique category of case in which the court has no discretion over whether to hear those cases. And by the way, when you look at the numbers, it makes sense that the Supreme Court is highly selective. There are only nine Supreme Court justices as compared to something like 180 federal appeals court judges throughout the country. There’s just not the time to handle every case.

This question comes in an email from Juliet who asks, “Do you think that the Manhattan judge and Trump’s criminal case paid any mind to the campaign calendar and setting Trump’s trial date?” Well, that’s a terrific question. As you may know, there was a court proceeding last week in which Trump’s lawyers objected vehemently to the setting of a trial date anytime in the near future. The judge overrode those objections pretty dismissively and set jury selection to begin in the Manhattan criminal trial of Donald Trump for March 25th, just a few weeks away, Donald Trump’s lawyer stated in court flatly and emphatically, “We strongly believe for a trial to start on March 25th is a great injustice.” But the judge wasn’t having it.

The lawyer went on to say, “The fact that President Trump is going to now spend the next two months working on this trial instead of out on the campaign trail running for president is something that should not happen in this country.” The judge then asked, “What’s your legal argument?” The lawyer said, “That is my legal argument.” The judge then ended the debate saying, “That’s not a legal argument.” Now, of course, the judge is understandably trying to be above the political fray and appear above the political fray, and that’s all important, but obviously he’s operating within a certain context. The Trump team brings up politics and the campaign calendar again and again and again, but the context in which he’s making the decision is interesting. First of all, the idea that these criminal proceedings are somehow politically harmful to Trump just isn’t borne out by the evidence and by the polling.

In fact, the stronger argument seems to be in the public’s sphere that the criminal cases against Donald Trump have bolstered his support and caused him to go up in the polls, so that’s the context in which this judge is operating. Also, as the campaign unfolds, pretty much as I speak today, Donald Trump has effectively locked up the nomination and there are reports that the Trump team is circulating that they believe they will have technically and fully locked up the nomination by getting enough delegates to be declared the nominee as soon as the middle of March, some days before the March 25th trial date. So in some ways, I imagine the judge is thinking to himself, if not aloud, that this is just as good a time to try this case as any other.

Now, as I hypothesized with Joyce Vance on the Insider Podcast this week, I wonder if it would’ve been a different result or a different set of reasoning if instead of Donald Trump having basically clinched the nomination and not needing to appear on the trail because he has no effective competition, even from Nikki Haley who stays in the race. If on the other hand, we had a situation where he was in a tight deadlocked race with one or more adversaries for the GOP nomination, and you had essential and important and vital primaries coming up, would the judge have been so cavalier in keeping him off the campaign trail? Maybe because no one is above the law supposedly. I do think in those circumstances, the judge might have been moved a little bit more by Todd Blanche’s argument in court.

I’ll be right back with my conversation with Jake Tapper.

THE INTERVIEW

Jake Tapper wears many different hats: journalist, author, cartoonist, and news anchor. Now he’s out with a new limited series about six defining political scandals in American history. Jake Tapper, welcome back to the show.

Jake Tapper:

It’s great to be back, Preet. How you doing, man?

Preet Bharara:

I’m good. So you have a new special, congratulations. It’s called the United States of Scandal, which kind of explains what it’s about in the name. So do you have any overall conclusion about the state of our union when it comes to scandal? Is it strong?

Jake Tapper:

Well, we got a lot of scandals to choose from, if that’s what you mean. I mean, it’s strong for the likes of me and you. I think that it’s tough to draw conclusions about 2024 scandals based on the six that we do in this series, all of which happen between 2000 and 2015. I think there’s some broad strokes that you could make. One of them is that having, if you are a powerful person, having people around you who are willing to criticize you, who can feel that they can offer constructive suggestions, that is an important thing to have. Another one is that our political sphere never stops attracting people who think that they can get away with all sorts of misbehaviors, even ones that are illegal, even ones that completely go against the image of themselves that they have been trying to sell to the American people and perhaps successfully so. So those would be the two broad conclusions.

Preet Bharara:

Is there any particular reason you selected these six? How was the decision making process and which scandals you would present in the series?

Jake Tapper:

That’s a great question. So at first, I wanted to tell… The first rule was I didn’t want to tell stories of scandals that everybody pretty much knew already. So anything involving the Bill Clinton impeachment or anything involving Donald Trump, we did not think would be good fodder just because those were stories that people probably felt they knew pretty well. We wanted to go into things, stories, tales that maybe they remembered but didn’t necessarily remember all the details. So that’s one. Two, it was to a degree, booking dependent, who could we book to tell their story? We didn’t only rely on that, but it was a big part of our decision-making process because we wanted to provide insights that were new so that even people who had covered the scandal would get something from it.

And then third, I wanted to do ABSCAM because it’s an exciting, interesting story that very few people remember. For those who don’t know, it was an FBI sting operation involving bribery of members of Congress. They made a film out of it, American Hustle with Bradley Cooper and Christian Bale. And Ozzie Myers, who was my congressman at the time from South Philadelphia, who got in trouble during ABSCAM. We were talking to him, and then he had to go to jail for a different issue. He ended up having to go to prison for some sort of judicial election malfeasance, so being out of prison was also a requirement.

Preet Bharara:

Are there any others that got away that you wanted to do?

Jake Tapper:

I mean, there’s no shortage of them. We kind of ended up… We did a little bit of work on Abramov, but it didn’t end up getting where we… In terms of interviews, it didn’t end up getting to a place where we were ready for it, which is not to say that we won’t revisit it if there’s a season two. There were a few others that I want to do, and the truth of the matter is that you could do it… Scandals obviously don’t only exist in politics. You could do a season two on Hollywood. You could do a season three on corporate America. You could do a season four on small town America. I mean, there’s no shortage of unbelievable stories that you can tell.

Preet Bharara:

In the six stories you tell, they’re not all political, but most of them involve political figures. And in almost every case, inarguably one maybe doesn’t apply, it was the alleged scandal was the end of their political career. Mark Sanford is a more complicated example because he was governor, and then he came back as a member of Congress. We talk about scandal and how that affects people’s careers. Now we have a guy, and you’ve mentioned him already, Donald Trump who has been adjudicated a sexual abuser, defamer, fraudster has four criminal cases pending against him, one of which involves a payoff to an adult film star, and he is poised to be the Republican nominee and quite easily and plausibly could become the president again. Is the age of scandal and its consequence on someone’s career, is that over?

Jake Tapper:

No. As we saw with the expulsion and prosecution of George Santos, it’s not over, but there is something particular about Donald Trump where his supporters and people in his party, who don’t want to get on the wrong side of him, are able to look past the various scandals for various reasons, probably different reasons. One of them being, I think a lot of his supporters and probably other observers look at some of the prosecutions and think, this seems like a political prosecution. This seems like they’re picking on him.

I’m not saying that’s my point of view. I’m just saying I could understand why Trump is using that as an argument and why some of his supporters believe it. Then, there are other issues having to do with, well, he might be a scoundrel, but he’s our scoundrel and he fights for us even if he gets on the wrong side of self-righteous, fastidious types like Preet Bharara and Mitt Romney. I don’t think that… In the same way that I don’t think Donald Trump’s endorsement is necessarily transferable in a general election, I don’t think that his ability to weather the storm, which by the way, we don’t know how much… I mean, we still have the criminal trials and verdicts.

Preet Bharara:

But look, if you look at one of 6 to 10 of scandals” that have engulfed Donald Trump, any one of them would’ve felled a different political star, right?

Jake Tapper:

Look, just comments he made would’ve felled a different political star going after John McCain for not being a war hero. I mean, that would’ve-

Preet Bharara:

I mean, look, Joe Biden is now the president of the United States. He sought the presidency in 1988 and had to bow out of the race because as I recall it, somebody fed him lines that were plagiarized from a UK labor party leader, Neil Kinnock, and that ended his candidacy. It seems kind of quaint.

Jake Tapper:

It did. There were other scandals that went along with that one that ended his candidacy. I think there were accusations about him plagiarizing in college or law school as well, and I wouldn’t exactly say that his campaign had been catching fire. But yes, you’re right. In the fall of 1987, he had to drop out of the presidential race because of his unattributed use, plagiarism of a Neil Kinnock speech. So I mean, you’re right, there are-

Preet Bharara:

Just pause on Biden for a second, just so we take this historical viewpoint. So this is a thing that caused him to have to get out of the race in 1987 for the ’88 cycle. Same guy, same plagiarism issues, conceded, runs in 2020, of all the issues that came up in that campaign, I don’t think the Neil Kinnock thing came up at all. At some point, is there a statute of limitations on scandal?

Jake Tapper:

Well, you also forgot that he ran for president in 2008 and lost. So I don’t know that there’s a statute of limitations. There might have been a freshness issue having to do with that scandal. I mean, it had happened literally when I was a freshman in college, and so the degree to which anybody wanted to talk about it. He still gets called a plagiarist. I mean, but the question is how much did anybody care? And also when you compared what he did to his opponent and the various allegations about him, maybe it seemed small potatoes.

Preet Bharara:

Is part of the issue with Trump and his Teflon status that he never presented himself as a saint and never ran on virtue.

Jake Tapper:

I think that’s part of it. I mean, one of the issues with John Edwards and Mark Sanford, both of which are stories that we tell in our series, is that they were depicted by themselves as family men, as people who had these really tight families, very strong partner spouses. And so the degree to which Mark Sanford’s infidelity and John Edwards’ infidelity undermined the public persona, I think was one the problems. Eliot Spitzer even more so because not that he sold himself as a family man, but he sold himself as this righteous crusader, and then it turned out he had been violating his own sexual trafficking laws that he had signed into law. He had violated that. So I think that’s one of the things.

I think there’s also just something about Donald Trump where his supporters think of him as fighting for them and irritating and hating all the people that they hate, and the reality of that all doesn’t matter as much like in terms of is Donald Trump a good father, is he a nice person, is he a family man, et cetera, et cetera. They don’t think that, but that’s also irrelevant to what they want. They want a fighter for their causes, and so they’re willing to look the other way or maybe they don’t even care. For some of them, they like it. For some of them, they like his bad boy nature. I saw a woman wearing a shirt at a Trump rally that said… Her shirt said something along the lines of “Grab me by the…” P-word.

Preet Bharara:

So there’s no statute of limitations on scandal. Scandals not behind us, but based on your research into this project and discovering politics for a long time, is there a difference in how the American public reacts to “scandal”? Are we less prudish than we used to be or does it depend on the particular person in the particular facts and circumstances?

Jake Tapper:

Well, certainly, the McGreevey scandal wouldn’t have played out the same way. And we interview McGreevey for one of the episodes, McGreevey-

Preet Bharara:

Do you want to remind people what that is?

Jake Tapper:

Yeah, the New Jersey Governor Democrat, wife and kids, and he was… Well, there’s two sides of the scandal, two parts of the scandal. One of them is he was gay and living in the closet. That was a secret that he was gay, and this was 2004. So it was an era where being gay was still a liability for a politician in New Jersey. George W. Bush got reelected and no small part campaigning against same-sex marriage, so that was that era 20 years ago. The real McGreevey scandal was that he had hired his lover, an Israeli named Golan Cipel as his Homeland security advisor when he didn’t really have any qualifications for that position. And Homeland security advisor for the governor of New Jersey three years after 9/11 was actually a serious gig, and that was actually the malfeasance. Not so much the affair, but so anyway, that’s a long way of saying that I don’t think that McGreevey necessarily his being gay would be as big a deal today.

Although, probably not, because it wasn’t like he campaigned against same-sex marriage. He wasn’t a hypocrite in that regard, even if he was infidelitous. But generally speaking, Donald Trump didn’t invent the stay in fight template. A lot of American presidents over the course of many years did that. I think it was Grover Cleveland that there was an “Ma, Ma, where’s my Pa? Gone to the White House, ha-ha-ha.” Isn’t that Cleveland? I think there’s a long list of American presidents who weathered the storm of scandal. Bill Clinton certainly weathered the storm of scandal. In the Senate, David Vitter weathered the storm of scandal. He was a Louisiana politician, credibly accused of visiting a prostitute, and he just stayed in the Senate and refused to answer questions about it, and for the most part, survived. He went back to Louisiana and ran for governor. He lost, and I’m sure it didn’t help, but he was able to weather the storm.

Preet Bharara:

Is there a playbook for weathering the storm? And as you were speaking, I was remembering other examples that are not in your series, at least not yet. No Al Franken, senator from Minnesota, some people think that he should have stayed and fought harder and could have remained this-

Jake Tapper:

He didn’t fight at all.

Preet Bharara:

He didn’t fight at all. Do you have any observation about that in retrospect, having done this work?

Jake Tapper:

Yeah. We interviewed his first accuser on my show and that interview… She got to a place in the interview where basically she was saying all she wanted was an apology, and she didn’t think he needed to resign. There were two problems I see with how Franken approached this. One, everybody needs to remember the context of this. This is during that crazy year and change of Me Too, when the media, the world, nobody really knew how… There was no playbook for this. Because of that being the background, Senator Franken did not want to be in the position of calling these women liars, even if he didn’t remember things the same way they did, and even if he thought they were lying, so that made it a much more difficult response for him.

The biggest problem he had or the two biggest problems he had is, one, there was a special election in Alabama because the former senator was now the Attorney General Jeff Sessions, and so there was an open seat, and the Republican nominee, Roy Moore had been credibly accused of inappropriate favor with underage girls, and the Democrats thought that they could recapture that seat, and they had a strong Democratic candidate, Doug Jones. And so that put them in a situation where they couldn’t be seen in their view as tolerating any inappropriate behavior. And Al Franken, his scandal, had the misfortune of happening right at that moment, and he’s a senator from a democratic leaning state where he would be replaced by a Democrat no matter what. So that was one of the problems.

And the other problem was that all the democratic women in the Senate called for him to resign. And so that was a lot of difficult stuff for him to face. Do I think he could have survived it? I do, but that’s just a hypothesis. It’s not based on fact. In my view, if he had come forward and said, “I don’t remember everything that people are saying the same way, but I’ve learned a lesson and remember I come from comedy, and I can be goofy sometimes, and I see now that some people take it the wrong way and blah, blah, blah, blah, blah, and I’m going to learn from this.” I don’t know. Perhaps he could have weathered it if he had done something like that, but he didn’t do anything, and then he was just attacked over and over and over, and then he ultimately just resigned.

Preet Bharara:

Yeah. It seems a one rule historically, although there are exceptions to this, and one exception is in your series that if you don’t stay and fight and get past it, if you’re in office according to the historical record and you leave, the comeback is very, very difficult. Even if memories fade and even if people think that there was an overreaction at the time, Eliot Spitzer tried to come back to a lesser office and failed.

Jake Tapper:

So did Weiner, didn’t he?

Preet Bharara:

Yeah, he had a second problem. And if he hadn’t had the second problem, Anthony Weiner might have been second or third problem. I lost count. He might very well have become the mayor of New York City. But there’s a particular example that you have in your series, Governor Mark Sanford.

Jake Tapper:

He did come back.

Preet Bharara:

Yeah, so explain that.

Jake Tapper:

He never went anywhere. He never resigned. He served all two terms of his-

Preet Bharara:

Oh, he didn’t resign.

Jake Tapper:

… gubernatorial reign. Yeah.

Preet Bharara:

I had forgotten that.

Jake Tapper:

Yeah. And he served out the remainder of his term. He did not resign. One of the reasons that we didn’t really have time to get into this in this show, in the episode about him, one of the reasons he wasn’t impeached is because… And this is a real devious, self-serving stuff, but there were three people who wanted to replace him in the legislature. Well, two in the legislature, and one who was the lieutenant governor. And Nikki Haley was one of the people who wanted to run for governor. I forget who the other one is. It might’ve been McMaster who’s the current governor. But either way, nobody in the legislature wanted Andre Bauer, the lieutenant governor, to become governor because then he would’ve just been governor for eight years. And so they knew if they impeached Mark Sanford, they couldn’t run for governor for eight to 10 years or whatever it was.

And so there were enough factions in the legislature to not vote to impeach Sanford, forget whether or not he had committed impeachable offenses for a second because obviously that’s the most important question, but beyond that, it’s just the politics of it. Nobody wanted the lieutenant governor to become governor because then that would get in the way of their own ambitions. So I mean, the backdrop of a lot of this stuff is always important. What kind of allies do you have? And Anthony Weiner did not have a friend in then Democratic leader, I think, Nancy Pelosi. She didn’t like him, and that would be a democratic seat if he had to resign. There would be a special election and no doubt a Democrat would win. All that stuff is taken into account. Sanford was able to survive in addition because he just stuck around and did his job. He apologized for what he did. He didn’t-

Preet Bharara:

Do you want to remind people? Not everyone maybe remembers [inaudible 00:27:02].

Jake Tapper:

Sure. Mark Sanford was the governor of South Carolina. He had been a congressman from I think the Charleston area, and he ran as a fiscal conservative. He had a wife named Jenny, who he’d been with for years and four boys, Marshall, Landon, Bolton and Blake, and seemed to be a great American success story. He emerged as a voter friendly face of the Tea Party Movement, rejecting stimulus funds after the 2008 financial crisis from President Obama and emerged as a foil to Obama, but not an unpleasant foil to Obama. Somebody who just talked about fiscal conservatism and actually had a record of believing in that, and then he just disappeared Father’s Day 2009. Nobody knew where he was, including his staff. And they put out a story saying he was hiking the Appalachian Trail, and it turned out he was in Argentina having an extramarital affair, and he came back and gave a press conference where he said he had been unfaithful to his wife, and he told the truth.

Now, it was a bizarre narcissistic press conference, but it was the truth that he’d been having an affair. There was an investigation into whether he used state funds for any of it, and he didn’t. I think he paid back some. There might’ve been some nominal fee or something like that, but the bottom line is he hadn’t broken any laws. He had ended his marriage and embarrassed his wife and their family, but he served out the remainder of his term and then a few years later ran for Congress and won, back for his old House seat. And then he ultimately lost in a primary Donald Trump endorsed. He was critical of Trump. Donald Trump endorsed his primary rival. It was a low turnout election, and Sanford hadn’t really run much of a race. He left with millions of… I think like a million and a half dollars in the bank, not running ads.

For the episode, I didn’t interview Sanford, even though I knew him at the time, and I talk about that in the episode about what it’s like to know one of these politicians and kind of be deceived because I bought into the idea that maybe he was actually hiking the Appalachian trail. But beyond that, we interview his long time chief of staff, a guy who had devoted his life to Sanford for like 15 years, and he gave his only interview on this. A guy named Scott English, and just told us what everything looked like from the inside and how weird and strange it all was to be on the inside of a scandal and to be duped by a guy you believed in.

Preet Bharara:

I’ll be right back with Jake Tapper after this. How much of surviving one of these things depends on whether you deny and stay in fight versus answer all questions come clean and then try to stay. Are there examples of both of those being successful strategies?

Jake Tapper:

I mean, the paradigm of how you’re supposed to handle these scandals according to a disaster communicator, a disaster advisor like a guy named Lanny Davis who’s a democratic advisor to Bill Clinton during impeachment, and his advice is you get out… As soon as the scandal breaks, you get out all the information on your own terms, all of it as soon as possible. And you take complete ownership for it, and then let the chips fall where they may. That’s the conventional wisdom in Washington and the best way to survive a scandal. Now, I don’t know if that’s true or not. In this age of Balkanization of our politics where there are different sets of claimed facts on partisan TV networks and partisan newspapers and magazines, I think it is also… That probably changes things too, because now you have a built-in support network for whatever you do, whatever happens. Depending on whether or not, if that is, you are a warrior for the left or the right.

And so I don’t know that there is a tried and true model for this is how you survive a scandal because it really is dependent on who you are, how many friends you have, your party, what happens to your seat if you leave. All of that stuff is part of it. I mean, look at Governor Andrew Cuomo. He was done in, I mean, obviously, he was done in by his behavior, but beyond that, he had a democratic attorney general looking into his behavior. So it’d be difficult to claim that it was partisan. Also, the perception that if he left, he would be replaced by a Democratic lieutenant Governor Kathy Hochul. I mean, so they’re just all these variables that make it very difficult to say what the rule is. I mean, I generally think as a reporter that the get it all out on your own terms, apologize, own it, answer questions about it is still the best advice. I mean, people don’t really talk about Chris Christie and Bridgegate anymore. It gets mentioned, but-

Preet Bharara:

Yeah. Look, that’s another example. That’s a better example and a more recent example than the Biden plagiarism example. These things maybe only last one cycle.

Jake Tapper:

It was also just I don’t know that he didn’t tell the truth. I don’t want to sound like naive, especially post me being duped by Mark Sanford, but as far as I know, Governor Christie told the truth about that incident and apologized for it and did a press conference where he just answered every question. And to this day, doesn’t bristle if you ask him about it.

Preet Bharara:

Yeah, I guess there’s one category where you have to be careful, and it’s the category of scandal in which you’re charged with a crime. And the person I think of here for the second time charged with a series of federal crimes, the Senator Bob Menendez.

Jake Tapper:

Yeah, but he denies it.

Preet Bharara:

No. So you kind of have no choice, but not… Unless you want to concede and plead guilty. It’s one thing to concede the facts of a scandal, a political scandal or some other social scandal. It’s quite a different thing to admit to crimes. And most people wouldn’t do that, at least not at the outset.

Jake Tapper:

So there is a perception, and this is the argument made by Menendez for his first corruption case, which is different from his current one. The first one had to do with a big donor/healthcare executive who had given him a lot of money and he had done favors for, they had gone on vacation together. When I say given him a lot of money, I mean campaign contributions, perfectly legal ones, and the allegation was by the government that it was a quid pro quo, which you’re not allowed to do. Give me $500,000 and I will make this decision for you that you’re not allowed to do that. Ultimately, that was a mistrial. And the argument by Menendez is same argument by Rod Blagojevich in the first episode of United States of Scandal which is, “This is our system. I was doing nothing different from anyone else, maybe I was a little earthier about it.”

I think the way that Blagojevich said it in our series is, and pardon me for cursing, but he said, I’m quoting, so it’s not me cursing. He said, “I said I didn’t break the law. I didn’t say I wasn’t a fucking idiot.” He says that in our interview, which is to say that he wasn’t subtle about it. He didn’t gingerly navigate the rules. There is an argument that there’s a lot of… That prosecutors, and I’m sure you disagree with this or maybe you don’t, I don’t know, but that prosecutors often criminalize what is just politics. And we’ve seen in recent years a trial against Senator Ted Stevens of Alaska. I think he was either acquitted or that was a mistrial. We saw the conviction of Virginia Governor Bob McDonnell overturned on appeal. And we have seen these arguments work, these arguments of you’re just criminalizing politics.

Preet Bharara:

It’s very difficult in a quid pro quo to prove… There are two categories, right? Somebody takes an official action in exchange for a campaign contribution. That’s one. That’s the example you were talking about. That’s very, very difficult to show, to be illegal because both of those things are in the ordinary course, allowable, right? You take official action, that’s part of your job. You vote on things, and you get political contributions. And the connection between those two things has to be really, really, really clear and compelling. The easier criminal case to bring, and it’s most of what you see brought is when someone takes an official action and they get paid for it, but not in a bona fide political contribution, but some other thing like a gift or cash or in Menendez’s case, allegedly gold bars, or there was that member of Congress in the south some years ago who I think had six figures-

Jake Tapper:

William Jefferson. Congressman William Jefferson.

Preet Bharara:

Hey, didn’t he have $90,000 in his freezer?

Jake Tapper:

Yep.

Preet Bharara:

So those are easier things to show as criminal, if the thing you get paid, if the quid part of the quid pro quo is something you use to line your pockets with. That’s how we convicted the speaker of the New York State Assembly Sheldon Silver and the Senate majority leader as well, but I hear you. Now, I think in the Menendez case, given the gold bars, it’s a different burden for him.

Jake Tapper:

Look, I mean, one of the things I like about this series is letting the people who are on the other side of it have their say. And I mean, I wish that Sanford had participated, but it’s still a great episode. The episodes end up being about something more than just the scandal. The first one with Blagojevich ends up being about this issue we’re discussing, the criminalization of politics, where are the lines, et cetera, et cetera. The second episode about Sanford becomes about being duped by a politician’s political persona. So Scott English was good for that because he was duped too. Some of the other episodes dive into other issues. But one of the things that was interesting for me when it came to the Valerie Plame episode was the argument from the conservatives on that, the Bush White House, which is that the prosecutor, Patrick Fitzgerald, who was the same prosecutor in the Blagojevich case that Pat Fitzgerald knew early on, he knew who leaked Valerie Plame’s name to the columnist Bob Novak.

And just for people who don’t remember all the details about this, this is 2003, the U.S has been at war in Iraq for about a year. One of the main arguments for war, not the only one, but the one of the main ones was that Saddam Hussein had weapons of mass destruction. Valerie Plame’s husband Ambassador Joe Wilson, former ambassador, was asked by the CIA to go before the war, investigate whether or not the Iraqis were trying to buy yellowcake uranium from Niger. He came back. He was debriefed, basically said no. They went to war. And then he wrote a column, I think in June or July in the near camp, he writes a piece that says, “What I didn’t find in Africa,” basically saying that the Bush administration’s case for war built on a lie. That’s his argument. A couple days after that, Bob Novak writes a column saying about, “Well, why was he even sent to investigate?”

The allegation was that it was a junket because his wife worked for the CIA, and with that was the outing of her name, even though she was an undercover CIA operative. And the question is, “Well, where did that come from? Why did they leak it?” And I think the prevailing conventional wisdom, the narrative is this was the Bush administration out for revenge against Joe Wilson. And that may be with some of the people who leaked the name, or at the very least, they were trying to undermine Joe Wilson as a credible source of information, which is not the same thing as revenge, but also not necessarily a good thing to do when it comes to outing his wife by name, who is a CIA operative.

But what’s interesting is the actual outing, the first person to give the name to Bob Novak was Dick Armitage, who was a deputy to Colin Powell at the State Department, and he gave it to Bob Novak. And it was more of just gossip. Novak had run into Wilson in the green room at Meet the Press, thought he was a, in his own words, asshole, Novak’s words. And then in a conversation with Armitage, just like, “Who is this guy? Why did he get sent?” And Armitage, it sounds like he was kind of gossipy, said, “Oh, he got sent because his wife works for the CIA in counterproliferation, blah, blah, blah.” Not out of revenge in Novak’s view or Armitage’s view, just chit chat.

So then the argument from the Bush people in retrospect on this whole scandal is Pat Fitzgerald knew that early on because Armitage disclosed it early on, so did Novak. So why did he spend two years investigating? Well, the argument is he was trying to make sure that no other laws were broken, et cetera, et cetera. And this wasn’t a revenge campaign by the Bush White House, but the only charge he ended up filing was perjury against Scooter Libby, one of Cheney’s aides for remembering a conversation he had with Tim Russert differently. And this again comes into the line of people in Washington thinking prosecutors can be out of control looking for crimes when maybe they should exist but don’t. And that also gets into the whole thing of the real scandal in Washington is not what’s illegal, but what’s legal?

Preet Bharara:

Is it Michael Kinsley?

Jake Tapper:

I don’t know who said that, but it’s wise enough to be him. But I’m not sure who said it, but it is true. I mean, a lot of what is allowed is perfectly legal, and at least when it came to the sliming of Joe Wilson and the leaking of Valerie Plame’s name, it does not appear as though a law was broken.

Preet Bharara:

Yeah, there’s another phrase people use, “Awful but lawful.”

Jake Tapper:

Yeah.

Preet Bharara:

I don’t think that was Kinsley.

Jake Tapper:

No, it’s too-

Preet Bharara:

He wouldn’t have rhymed.

Jake Tapper:

He’s not a rhymer.

Preet Bharara:

He wouldn’t have rhymed in that way. I’m just wondering, in light of the work you’ve done and the show you’ve created, if a Bill Clinton-like scandal happened today, if it was the same guy, would it have played out differently? Do we have different sensibilities now with respect to what he did?

Jake Tapper:

I don’t know how differently it would’ve played out because ultimately Democrats rallied around him. So I don’t know that you can say social media or the existence of MSNBC would’ve helped him more. He already had broad support, largely because of the job he had done as president. People thought he did a good job. And then again, remember, he was impeached not for cheating on his wife with a vulnerable 22-year-old intern, he was impeached for committing perjury and suborning perjury, which arguably he was guilty of, and he wasn’t convicted in the Senate because there’s an incredibly high bar. You need 67 votes to convict, which is why bringing an impeachment of anyone is generally more of a political act than it is a legal act because, in this day and age, to get 25, 30 members of the opposing party to go along with going after somebody on their own side is a tall order. So I don’t know that it would’ve played out differently.

Preet Bharara:

Does any of this work that you’ve done counsel you in any direction as a daily journalist on how to cover these scandals and trials relating to the presumptive Republican nominee?

Jake Tapper:

I would just say as a general note, it’s always good for journalists to remember that, A, these people are not our friends. They’re people we cover. B, they have a side to tell. They have a story to tell. And it shouldn’t be discounted. I don’t mean like Anthony Weiner has a story to tell. That stuff’s disgusting, I mean, with the underage girl. But when it comes to allegations, Bob McDonnell is a perfect example. I don’t remember doing a lot of major coverage of it, but his argument that he didn’t do anything illegal ultimately prevailed and yet his career was destroyed.

Preet Bharara:

Yeah. Look, there are categories of people who get charged with things and they didn’t do it, and they’re innocent. And then there are categories of people who get charged with things, and maybe it wasn’t technically because of how the law is interpreted or the law changes as it did in the McDonald case, wasn’t criminal in nature, but still may have been horrible and disgusting and unethical. I mean, in McDonnell’s case, the way his case got overturned in the Supreme Court was that among the official actions that he took were arranging meetings with members of his administration. And the court found that that was too amorphous and overbroad and the mere arranging of meetings as opposed to giving out of official money from the state or voting on a particular thing as might happen with the legislator. That’s more in the nature of traditional, official action, but the taking of gifts from a donor, I don’t think anybody was applauding.

Jake Tapper:

Right. You’re just asking what lessons have I learned, I’m not saying that Bob McDonnell-

Preet Bharara:

No, no, I’m just sticking up for the prosecutors-

Jake Tapper:

It’s great…

Preet Bharara:

… on this point.

Jake Tapper:

No, and you should. I might even be pushing you a little harder on this issue because you’re a prosecutor, but I just think that prosecutors are not always correct, and prosecutors tend to be very aggressive, and that’s the role that they play. It’s the same thing for me as a journalist. Sometimes somebody will say I’m too aggressive on X, Y or Z. and I’m like, “That is actually my job.” Not necessarily how I actually feel inside about an issue, but it is my job to be aggressive, which is funny in the sense that I know that prosecutors are aggressive.

And that is why when I read the Robert Hur memo, and I think you disagree with me on this, but my perspective on his comments about Biden’s age and this and that were… This is what prosecutors do. They write these documents. They’re rude. They’re obnoxious. They are not kind about the guy they’re investigating or gal. And this reminds me of a million different documents I’ve read on… It’s like when Weiss I think was going after Hunter Biden and had that whole presentation about stuff that Hunter Biden was spending money on other than his children, that’s an a legally irrelevant document. It’s just they’re being dicks, right? I mean, that’s the point of it.

Preet Bharara:

Are you quoting someone when you say that?

Jake Tapper:

No, it’s my perspective on prosecutors, your job, and journalists too. Our job is to be dick sometimes that’s the point.

Preet Bharara:

On prior occasions when you’ve used language, you’ve been quoting other people, I just wanted to make sure that-

Jake Tapper:

No, no.

Preet Bharara:

You said dicks.

Jake Tapper:

I violated my own rule.

Preet Bharara:

Ladies and gentlemen-

Jake Tapper:

I violated my own rule.

Preet Bharara:

… it came out of the mouth of Jake Tapper himself.

Jake Tapper:

Sorry, I apologize. What’s a podcast?

Preet Bharara:

But with respect to the Robert Hur report, the difference is in all the other examples you’re giving, they were part of charging documents. And so the principle at the Justice Department is generally outside of the scope of special prosecutors and special councils is if you make your accusations against Menendez or anyone else, they can be fought in open court, and they can be disproven and rebutted. And when you decline a case as Robert Hur did, and you nonetheless put in salacious commentary about the person against whom you’re declining, that works a fundamental unfairness. That’s the difference.

Jake Tapper:

So the counter argument as you know, but just to explain for people listening is Robert Hur decided to not prosecute a president even though he thinks that the president violated the law on at least one occasion, and he needs to, therefore, give a good explanation. And his explanation was, and I’m paraphrasing here, but this guy will come across before a jury as a sweet befuddled old man. Therefore-

Preet Bharara:

I mean, I think people have had disagreements over their reading of the Hur report, and there is one sentence where he talks about the matter and the way you’ve described, but if you look at the whole report, and this is my view and the view of many people, he didn’t think there was a provable crime. In part, it’s because he would’ve been sympathetic to a jury, but it goes far beyond that. And among other things that where there was no plus factor, no aggravating factor, such as lack of cooperation or obstruction of justice, or any of the other things that are present in the Mar-a-Lago case, you don’t charge, and that’s a more fundamental reason for not bringing the charge, then he might seem old and have a bad memory.

Jake Tapper:

Well, but there’s two other points I’ll make on this, and then my job as a reporter is just to read this stuff. I’m not saying he made the right decision or the wrong decision, Robert Hur. The other two points I’d raised is one that Elie Honig commented on, which is in 2017, according to the Hur report, Joe Biden tells his ghostwriter that he has classified documents in his house. And that’s 2017, and it isn’t until I think 2022, that they inform the authorities that he has classified documents, and that’s after the Donald Trump classified documents case. So in any case, my only point is Elie wrote a whole essay about this for New York Magazine in which he argues this is five years of Joe Biden not cooperating, not resisting cooperation, but not cooperating because he knows he has classified documents or whatever. So I mean, that’s for you and Elie to fight about maybe on my show.

Preet Bharara:

I’ll fight with him about that.

Jake Tapper:

And then-

Preet Bharara:

It’s a much different ball of wax than the conduct that Donald Trump engaged in.

Jake Tapper:

Well, that’s the other point I wanted to make [inaudible 00:49:10], but Robert Hur makes that argument.

Preet Bharara:

Yeah, he does. He does.

Jake Tapper:

He has a whole section.

Preet Bharara:

He does.

Jake Tapper:

And I could see a conservative or a Donald Trump appointee or fan saying, “Why is that even in here? You’re making the case of what Joe Biden did is not even half as bad as what Donald Trump did for reasons X, Y, Z. Why is that even in there?” So I mean, Robert Hur also makes that argument. So I just think it’s a complicated document that he put forward, and I just think all the areas here are worth discussing. And if I had been Joe Biden, I would’ve not gotten mad about… I think the advice would’ve been just embrace the part of it that clears you and says they’re not charging you, and what Donald Trump did is a thousand times worse. But because Joe Biden reacted the way he did, it became a much bigger story.

Preet Bharara:

Well, it’s so funny, right? Because I think I was on your show some years ago where I made the point that any document relating to anything connected to Donald Trump, he would say it was a total exoneration of him. And I think I said, I think it was on your show, that Donald Trump could go into a Chinese restaurant, get the menu and say, “This menu is a complete exoneration of me,” even if it was an indictment of him. And it’s interesting that the Biden folks, I mean, I think they did, but maybe not as forceful. I mean, Ian Sands and others did.

Jake Tapper:

Initially they did. Yeah, and then he got mad.

Preet Bharara:

The import of that report is no crime, no crime, no crime. And that, I think I’ve also said recently, what kind of a world are we in when he gets exonerated, and it’s still a political disaster for Biden, Trump gets charged four times, and it’s a political bonanza for him. What does that tell us about the nature of scandal?

Jake Tapper:

I mean, it tells us that Donald Trump is not a credible source. That’s not new. I just think also Donald Trump did not invent shamelessness, but he has taken it to a new place. And I think that there are probably a lot of politicians that are looking at how he has weathered scandals and thinking they can repeat that. And the truth is I don’t know that it’s repeatable. Donald Trump just has a huge fan base that allows him to skirt this stuff. He also has a bunch of politicians who are terrified of him and terrified of the fan base, and therefore, he is able to navigate these waters in a way that George Santos would not be. Or I don’t know what’s going to happen with Congressman Matt Gaetz, the Justice Department has not prosecuted him, the Ethics Committee is now investigating. Who knows what’s going to happen?

If the House Ethics Committee comes forward and provides a document, a conclusion that Matt Gaetz has behaved in an inappropriate way, he is not going to be able to pull a Trump because he has a lot of enemies in Congress, and he is not Donald Trump. He doesn’t have the fan base. He certainly has fans. This is a bunch of hypotheticals. I have no idea again that anything bad is going to happen to him. My point is though that Donald Trump is a case unto himself. It cannot be repeated. I think a lot of people are going to try to repeat what he does, but I don’t know that it’s necessarily possible. He is this very special case.

Preet Bharara:

Why is Nikki Haley still in the race?

Jake Tapper:

I think there are a lot of reasons why she’s in the race. One of them is, I think, she probably legitimately believes that Donald Trump, as she has come to realize how bad in her view he would be for the Republican Party and for the country.

Preet Bharara:

Well, I mean, Chris Christie had that view too, but he still got out.

Jake Tapper:

Right. I think that there is… She has financial support from other Republicans that want her to be president and don’t want Donald Trump to be president. And I think there is probably also this, there exists this possibility that Donald Trump will be criminally convicted before the Republican Convention. And if that happens, what happens? I think that she probably wants to be standing there as the alternative for the GOP. I don’t know that that’s going to happen, or even that Eugene Debs like, he wouldn’t be running for president from prison, but I think that’s a possibility.

Preet Bharara:

In a completely different vein, I didn’t want to let you go without having you say a word or two about how you think the situation in Israel is unfolding, both in Israel itself and how the Biden administration is seeing the situation on the ground with Netanyahu and Israel.

Jake Tapper:

It’s a very complicated story. And yet on another level, it’s very simple. It’s complicated because President Biden does not like or trust the Prime Minister of Israel Benjamin Netanyahu, and doesn’t think that he is waging this war against Hamas wisely humanely effectively. By the same token, there is a reluctance of critics of Israel to discuss, A, what happened on October 7th to Israel, B, what any other Western country would be doing if the same had happened to them or to us, and C, the fact that as of right now, Hamas could get a ceasefire if they agreed to return the hostages and give up power. Now, I don’t know why to some people that might seem a ridiculous argument. The Egyptians tried to broker it at one point, I think in December. They tried to broker a ceasefire agreement where Israel would stop bombing and stop attacking, and Israel would give over, I don’t know how many Palestinian prisoners.

And in return, Hamas would return the hostages and give up power and some other person or organization would take over in Gaza. So it’s complicated. It’s ugly. It’s very difficult to cover. Any war story is difficult to cover. Any war story where innocent people are dying is difficult to cover. But I don’t see the story in the same way that a lot of people who think… The story is not just about what the IDF is doing right now in Gaza, although that is a major part of the story. The story is also the fact that of what Hamas is continuing to do to Israel and to its own people because they are on record saying they don’t care how many Palestinians die in this war. And they are on record saying that the tunnels are for Hamas, not for the innocent Palestinians. So it’s just a super awful story.

Preet Bharara:

Speaking of super awful stories, the two-year anniversary of Russia’s invasion of Ukraine, it’s coming up this Saturday on the 24th. How do you think that’s going to unfold in the coming months?

Jake Tapper:

It’s awful because, A, the signal being sent to Putin right now from Congress, from the Republicans in Congress is we’re not sending more funding. If you talk to people who work in the governments of NATO allies, they’re incredibly upset about the signal that is sending to Putin and what Putin will take from this, what lesson he will take. A few years ago to say that there was a Putin wing of the GOP seemed unnecessarily hyperbolic maybe. But it’s hard to escape the fact that there is that right now, commentators and politicians who actually… Their sympathies are with Putin and not with Zelensky and the people of Ukraine. And it’s so bizarre as somebody… I think I’m a little older than you, Preet. I’m almost 55. How old are you?

Preet Bharara:

I’m 55.

Jake Tapper:

Oh, wow. Okay. So I’m a teeny bit younger than you. And you and I were raised in our formative years with Ronald Reagan as president and Ronald Reagan’s whole mantra was that the Soviet Union was a “evil empire.”

Preet Bharara:

That’s right.

Jake Tapper:

And he wasn’t wrong. It was an evil empire. And that’s not to say that the people of Russia or the Soviet Union are evil, but the government was, and it still is, and it’s weird to see Reagan’s Party act like this.

Preet Bharara:

I don’t know why you say that. Tucker Carlson says the subways are very nice there.

Jake Tapper:

The subways look great. I mean, Mussolini made the trains run on time, right? There’s a lot of stuff you can do if you don’t care about freedom.

Preet Bharara:

Congratulations on the series, Jake Tapper, United States of Scandal. I should say, when it’s on. How do people-

Jake Tapper:

Sunday nights at 9:00.

Preet Bharara:

Sunday nights at 9:00.

Jake Tapper:

Sunday nights at 9:00. And the next episode this Sunday is about the John Edwards affair, which is shocking. And we sit down with his girlfriend and the mother of his daughter, Rielle Hunter, and she has a lot to say, and it is very interesting.

Preet Bharara:

Well, people should watch. Jake Tapper, thanks again for being on the show.

Jake Tapper:

Thanks, Preet. Always good talking to you.

Preet Bharara:

My conversation with Jake Tapper continues from members of the CAFE Insider community. In the bonus for Insiders, we discussed Tapper’s writing process and the new book he’s working on.

Jake Tapper:

It’s a nonfiction book, and it’s about prosecutors.

Preet Bharara:

Uh-oh.

Jake Tapper:

It’s about from EDNY from the Eastern District of New York, and it’s a positive story.

Preet Bharara:

What is that office?

Jake Tapper:

The Eastern District of New York.

Preet Bharara:

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

BUTTON

I want to end the show this week by addressing the death of Alexei Navalny, the fierce and brave opposition leader in Russia. He died suddenly last Friday after reportedly losing consciousness in the penal colony where he was serving a three-decade sentence for overlapping “crimes” like extremism. He was 47 years old. Navalny was Putin’s most prominent critic and loudest political opponent. He was arrested in January of 2021, five months after being poisoned and narrowly surviving. He recovered from the poisoning in Germany. And then what did he do? Even knowing Putin had tried to kill him, something most people wouldn’t do, he went back to Russia, the place of maximum peril. The place where Putin finally finished the job.

All over the world, leaders, politicians, and activists were quick to place the blame for Navalny’s death squarely on the shoulders of Russia’s President Vladimir Putin, which is where it belongs. His death is tragic and galling. A horrible reminder of the power of Putin’s Kremlin to silence all who dare challenge it. After news of Navalny’s death broke, people gathered across the globe to mourn from Moscow to Berlin, to Paris, to London, to Copenhagen, and to New York. A mountain of flowers appeared at the Solovetsky Stone Memorial in Moscow, which commemorates victims of the Stalin regime. Hundreds of public mourners were detained in Russia over the weekend. The New York Times interviewed a woman who said, “They are scared of Navalny in jail. They’re scared of dead Navalny. They’re scared of the people who bring flowers here to the stone.” The news is especially potent as the war in Ukraine approaches its two-year Mark. President Biden spoke after news of Navalny’s death.

He said, “He was so many things that Putin was not. He was brave. He was principled. He was dedicated to building a Russia where the rule of law existed and where it applied to everybody.” Another Russian, human rights advocate, Putin critic, chess grandmaster, and my friend Garry Kasparov, wrote on X, “Putin tried and failed to murder Navalny quickly and secretly with poison. And now, he has murdered him slowly and publicly in prison. He was killed for exposing Putin and his mafia as the crooks and thieves they are.” The following clip of Navalny circulated widely in the hours after the news broke of his death. Before he returned to Russia in 2021, he bravely foreshadowed his own murder, “Listen, I’ve got something very obvious to tell you. You’re not allowed to give up. If they decide to kill me, it means that we are incredibly strong.” Rest in power, Alexei Navalny. May the world never forget your sacrifice, your service, your fight against corruption and evil. My deepest condolences to the family and friends of this brave, brave man.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Jake Tapper. 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 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 was David Tatasciore. The deputy editor is Celine Rohr. The editorial producer is Noa Azulai. The audio producer is Nat Weiner, and the CAFE Team is Matthew Billy, Jake Kaplan, and Claudia Hernández. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay Tuned.