Preet Bharara:

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

Sam Harris:

When we lift the hood on what has happened in the second Trump term, all of the people who have collaborated in what is effectively a kind of kleptocratic distortion of American policy on every level, and there are billionaires wrapped up in this too, the cryptocurrency of it all, the thing that has enriched the Trump family more than anything, there are some very big names adjacent to all of this. And are laws being broken? If they’re not, we don’t have the right laws.

Preet Bharara:

Welcome to Stay Tuned. I’m Preet Bharara. My guest this week is Sam Harris, who has a lot of hats. He’s a neuroscientist, a philosopher, a five-time New York Times bestselling author, and the host of the Making Sense podcast. We talk about a lot of stuff: politics, philosophy, government, morality. That’s coming up. Stay tuned. Sam Harris, welcome back to the show. How are you?

Sam Harris:

I’m good. Great to see you, Preet. It’s been a while.

Preet Bharara:

It’s been a while, and I’m just trying to figure out if things are the same, if they’ve gotten better, if they’ve gotten worse. I don’t want to talk about politics just yet.

Sam Harris:

Okay.

Preet Bharara:

Something that’s been on my mind, I know is on your mind, and one of the things that you’re known for is your commitment to and dedication to and concern about good faith debate and discussion, right? Is that a fair statement?

Sam Harris:

Yeah, sure.

Preet Bharara:

That’s one of the reasons you have a podcast, it’s one of the reasons I have a podcast. Before we talk about how political debate unfolds, because that’s a subspecies of overall conversation and debate, there are discussions on college campuses, there are discussions in people’s homes, there are discussions at Thanksgiving, cable television, podcasts, you name it. You hear this all the time, and I heard it 20 years ago and 30 years ago also, that the quality of dialogue has gone down. Is that true or do we just reinvent a reason to be concerned and critical and annoyed every few years?

Sam Harris:

No. Well, I think both things are also true. Those aren’t mutually exclusive, but I do think it has gone down for some obvious reasons. I think the information siloing born of social media and the fragmentation of culture as a result of that has preceded a pace for the last 20-some-odd years. I think people are reading less and what they read is shorter and less carefully argued. I think much of what people are consuming is if not AI slop entirely, it’s the sloppification born of hot takes and, frankly, podcast conversations such as this. Although I think you and I are-

Preet Bharara:

Hopefully, we’re okay.

Sam Harris:

Yeah. We’re not going to be displaying the most egregious sins of the format here, but so many podcasts are just a matter of the host and the guest bloviating without much care to observe anything like academic or journalistic or intellectual norms. We have so many podcasts that are run by comedians and entertainers and also just unserious people. So the appetite for contrarianism and conspiracy thinking has been supercharged during COVID and beyond as one big cultural change.

So there’s very little respect for institutions and institutional narratives and gatekeeping and expertise. So that unwinding has had an effect. The effect that Joe Rogan’s podcast has had has been many things, but it has been politically disastrous, I think. It’s not just what’s happened on his podcast, but the instruction that every other independent broadcaster on earth has taken from his example. I think it’s been terrible.

Preet Bharara:

You would think that people would have a base level of credulousness about things that they hear. And in both regards, with respect to people that folks think they shouldn’t agree with, someone from a different party, they don’t believe anything that comes out of the mouths of the people who are on the other side of the fence, which I sort of get that, but you couple that with simultaneously taking his gospel, everything said by the folks on their own side of the fence, that’s true with Joe Rogan, that I don’t really understand. Do you have a theory about that?

Sam Harris:

Well, it is a form of tribalism. It’s a form of confirmation bias. There are certain sources that you prejudge as friendly or through cruel experience, you realize that certain sources are kind of weaponized against you and you just are not disposed to take them seriously. So much of this you can date to COVID and what it did to our society, both the fact of the pandemic and the reaction to it and the overreaction to it and the counterreaction to it. And you know what it’s like. When you see a story that you’re close to, many of us have had the experience of seeing the bias and frank idiocy of even the best organs of journalism like the New York Times on full display. As recently as today, I’m reading an article in the New York Times and I see them predisposed to get many things wrong because they’re tending to various left-leaning shibboleths on a topic that I know very closely.

All of that stuff is infuriating, frankly. And if you don’t have enough of a foothold in the norms of proper critical thought, it’s easy to see how someone who bills himself as really just an entertainer, as someone who’s just having fun on his podcast with friends mainly, doesn’t have a responsibility to keep bending over backwards to give the usual gatekeepers and the usual authorities a fresh hearing. So yeah, there are many people who just think that you shouldn’t believe anything in the New York Times, but you should believe what some fairly crazed person thinks about vaccines in the same breath as he tells you that he was denied a Nobel Prize for his groundbreaking work. They’re listening to crazy people, but some of these crazy people are running parts of our government now. Again, there’s been a great unraveling.

Preet Bharara:

Since you mentioned COVID, do you have a view on how Dr. Fauci has been described, how he’s been treated, and how he’s been received and though of? And how do you think of him?

Sam Harris:

Well, there are a few layers to this onion. The first thing I would say is in defense of all the people who are outraged at how the government handled everything, there’s kernels of truth to that outrage. And one kernel is the immediate branding of any speculation about the origins of this virus being not a wet market, but a lab leak as racist, that kind of vilification of people who were just following some obvious chains of thought at the time, that was terrible and terribly counterproductive. It had nothing to do with racism. Step back for a second and ask yourself, “How is a lab leak more politically invidious, i.e., racist, than a wet market outbreak?” If anything, I would say the fact that the Chinese can’t figure out how to stop eating bats and pangolins and raccoon dogs, that is more, quote, “racist” to observe about their culture than their propensity to have a lab leak out of a level-two or level-three lab, which happens to more or less everyone.

The racism charge was always idiotic. It was always going to produce rage in anyone who it was directed at. So that’s true. And Fauci was part of that. And his leaked journals, though I don’t think they should have been leaked, I think that’s awful, are obviously embarrassing, the contents there, his level of starfuckery. So yeah, I don’t support the leaking of private journals in this way, and I think many people would be embarrassed by that process, but what is in fact on display is also as objectively embarrassing as almost anything in a public health official. He was just blown around by his fame in a way that’s just hard to defend. And as to whether or not he was doing anything to cover for the improprieties of himself or his friends in trying to quash any investigation of a lab leak, I think that remains to be seen.

But I do think he’s also the focus of a witch hunt and the attacks on him and the glee with which many people are expecting an 85-year-old man to spend the rest of his days in prison, all of this is just a kind of moral panic and a burning of a witch, which I think, again, it’s a sign of the times we’re living in.

Preet Bharara:

You raised something else that is sort of part of this whole discussion about good faith debate and the lack of it and where people go directionally with their complaints and what outcomes they want. And this one is near and dear to my heart, it’s criminal prosecution. And I don’t know if it’s the case 50 years ago that people were so quick to say, if you disagreed with somebody or you thought someone violated a, quote unquote, norm or someone was on the other side of the fence or someone committed an ethical violation or someone told an untruth in some context, it doesn’t matter what it is, if they’re not in your tribe, lock them up. And there’s lots of things that are morally blameworthy. I dare say that I’ve committed a number of them. I’m sure you have. There’s not a human who hasn’t. But if you’re in the other tribe, the call to imprison you, I feel, comes much more quickly than it ever did before. And that’s even true on the left sometimes too.

Sam Harris:

Let me volley this back to you with a similar question, but I’m wondering, there’s some significant asymmetries here, right? If you were someone who claimed to care about the contents of Hunter Biden’s laptop or about the impropriety of him having a sinecure in a Ukrainian oil company for which he was clearly not qualified and what that might say about corruption in the Biden family and the coming Biden presidency, okay, well, it’s fine to care about all of that, I guess. But then how can you not care about a president who has already enriched himself billions of dollars by trading away our tariff policies and our foreign policy?

Preet Bharara:

Well, he’s my guy.

Sam Harris:

But it’s the scale of the thing that is so different. And Nancy Pelosi’s stock trades are one thing. What Trump and company are doing now is orders of magnitude worse, even if you are going to take the least charitable view of the Pelosi case. So my question to you is, if there are not laws against what Trump and family are doing now, cryptocurrency scams or creating an insider trading mechanism, selling early access to his Truth Social posts for $100,000 a month so that you can bet on their implications in the market.

One, aren’t there laws against that? And why wouldn’t somebody be going to prison once the Democrats have enough power to actually investigate things? But two, my concern is that once the Democrats are in a position to investigate these sorts of things, it’s all going to be spun as just more lawfare, more cynicism, more tribalism, and attention to details of scale and to the egregiousness of some of these offenses will go completely out the window and we’ll just be swinging back and forth between these misuses of American justice wherein one is actually its proper use. If this kind of financial behavior and self-dealing can’t be investigated, I don’t know what can be.

Preet Bharara:

Well, number one, I think it will be. I think the House will be in the hands of the Democrats. The Justice Department is not. And you have my erstwhile friend, Todd Blanche, and former colleague, saying words to the effect of neither he will say nor should any attorney general say that they’re independent from the White House, which is astonishing. But when you ask a question like that, and a lot of people do on a going-forward basis, there’s some history here. And Donald Trump has been investigated multiple times again and again and again, both by state jurisdictions, state DAs, by federal prosecutors, a number of them, by a state attorney general, by Congress multiple times. He’s been sued, he has lost. So there is a mechanism for doing this. It doesn’t always succeed because there are problems of proof or there are problems of who’s directing the investigation and who’s not.

And I think the things that you’re talking about are ripe for investigation and will be investigated, not by the Justice Department over the next two and a half years, but at some point they will. Now, the other paradox here is I come from a law enforcement background and so if someone committed a crime or there’s sufficient predicate to investigate a crime, then you do that and you walk away if there’s not enough evidence or it’s not in the interest of justice. And otherwise, no matter what the hue and cry is, you go forward. The problem is when you investigate and/or prosecute or decline to prosecute someone like Hillary Clinton or Donald Trump or anyone else who has a political following, and in some cases, a subset of a political following that is sort of blindly following, sometimes politically the best thing that can happen to them is to get investigated or to get indicted.

Now, I haven’t looked at the charts myself, but multiple people have said, and I should go look at it myself, that Donald Trump was deader than dead as a political prospect after he lost the election in 2020. And people tell me, “If you look at the graphs, his popularity began to rise again when he was indicted by the Manhattan DA.” And the other thing that happens is the sort of drowning in information, and not just information, but drowning in conspiracy theories and drowning in lies and drowning in controversies. Donald Trump, even though the publicity he was getting was largely negative, you had the prosecution in Manhattan, you had the prosecution in Georgia, you had the two special counsel prosecutions, he was taking up all the air. So even if somebody else on the Republican side had a message, and even if the information about Donald Trump was bad, it was all about Donald Trump going to prove that old saying, “There’s no such thing as bad publicity.” I don’t know if that’s true or not.

You combine that with JD Vance’s recent pronouncement that if Watergate happened today, it would be a 12-hour story. And can you imagine how ridiculous it is that that little thing called Watergate toppled a presidency? How do you react to all of that stuff?

Sam Harris:

Well, I think he’s probably right about that, but I would draw the opposite lesson I think there. That is a sign of just how deep a hole we are in politically and culturally. It’s not that it should have been a 12-hour story. It’s that it would be now a 12-hour story given how much noise and how little signal there is on our information landscape, given-

Preet Bharara:

But is there always that noise or does Donald Trump strategically, tactically, instinctively create that noise? Was there that much noise when Biden was president? I don’t think so.

Sam Harris:

There’ve been Trump-like reverberations that crossed the four years where he wasn’t president we continue to unravel. And there’s a left-wing version of the Trumpist noise machine. But for Trump specifically, this is, I think, a kind of unpopular opinion of him, but this is the framing I have always had of him, and I think I still have it, I think a lot of his success and his ascendancy and his invulnerability to scandal has less to do with him being some kind of political genius and more to do with the situation in which he has found himself. The analogy that has worked for me is that he’s kind of an evil version of the Chauncey Gardiner character from the Jerzy Kosiński book Being There and the film by that name. If people remember, Peter Sellers played this character who is just alone in the house and he’s the gardener.

And he gets thrust into a situation where everything he says can be mistaken for political wisdom, but he’s really an imbecile. And he never ceases to be an imbecile, but he’s in a context in which everything he does begins to look profound and has a profound effect on the people around him. There’s something like that going on with Trump. So ask yourself now, “Is Trump being a genius when he contradicts himself 15 times over the course of 30 minutes on topics of enormous importance like what’s going on in our current war with Iran?” He’ll claim that the Iranians are just peace-loving people just like ourselves who want the best for their country and then he’ll turn around and say they’re scum. He’ll say he’s going to annihilate them, but then he’ll say that the war’s already been won and the Strait of Hormuz are wide open.

He lurches back and forth. It is just a word salad. Now, that is not, I would say, calculated to confound the audience. No, he has found himself in the presence of an electorate where tens of millions of people simply do not care about what is real. An ordinary con man has to lie so as to be believed. He has to be aware of the logical expectations of his audience. And the con is to shade the truth or to lie outright in such a way… The puzzle piece has to fit or seem to fit so that everyone doesn’t call bullshit on the whole enterprise. The situation Trump is in is he’s got enough people, something like 30% of Americans, maybe 40% of Americans who simply don’t care if the puzzle piece fits. They’re not tracking the truth. They’re signaling to themselves in some kind of extended loyalty test that they will eat everything that comes out of his mouth, lie, insult, hallucination, and they’ll give him money. Then he’ll print another fake gold coin.

And it doesn’t matter what that gold coin says. He could mint a coinage that says, “You’re all a bunch of dumb cucks. Come and get it.” And he would sell millions of dollars of those coins. That’s the situation he’s in. And given that he’s got tens of millions of people who will never be dislodged from that cult, he looks like of some kind of political genius.

Preet Bharara:

Would you describe him as a demagogue?

Sam Harris:

Oh, absolutely. Yeah.

Preet Bharara:

Demagogues never have a majority, I don’t think. It’s unlikely that they have majorities because there are thinking, intelligent, rational people in any given population, particularly one that’s a democracy, that may be under threat of becoming something less than or different from a democracy. And Donald Trump seems to have figured out, again, instinctively, because I don’t think he gives deep though to anything, he doesn’t have a manifesto at home, he has instinct in his head, that you don’t need to have 51% of the people. You don’t need to have 60% of the people. And if your particular appeal is to that subset of any population who is more likely to believe in conspiracy theories and is more likely to not be attached to democracy… Anne Applebaum has this statistic that I think about all the time, and I was looking back at one of her books over the weekend, I think there are social scientists who believe that even in Western liberal democracies, there’s a latent subset of, I don’t know, they claim 20%, 25%, 30%.

We’re like, “Yeah, look, if we have to have some autocracy, but we get the outcomes we want, then we’re okay.” And he figured that out. Even now with his very low poll rating, he’s basically alienated all the people who have some skepticism about him, even if they voted for him. And the only people that are left are the ones who don’t. And if that’s of a sufficient number to win the electoral college, then that’s all you need. Does that mean the system is messed up? And then I guess my question is, on the pie chart of blameworthiness about our being in this predicament, how much of that pie chart is filled with Trump and how much of that pie chart is filled with Trump supporters?

Sam Harris:

Well, I would point to the other part of the pie, I would say at least half of it, which is the miscalculation and frank idiocy and confusion of the left. I blame the left in large measure for the fact that there’s a President Trump in the first place.

Preet Bharara:

Let’s go through that. Give us your views.

Sam Harris:

There’s many examples that can crystallize this problem, but I’ll take you back to the time when Kamala Harris, over the course of her campaign, could not figure out how to disavow her prior support for taxpayer-funded gender reassignment surgery to incarcerated illegal immigrants. That was a interview question that she quite noticeably fumbled. That was an attack ad, she is for they/them, he is for you, that I think got 30% of Trump’s spend in the last weeks of that campaign.

Preet Bharara:

See, but what’s interesting is many people will agree with you. But then already, it seems to me that spotlighting that issue says there’s an uneven playing field because Trump has said any one of a number of things that are batshit crazy like that, except we’re having a conversation about how Kamala Harris was to blame and is at fault for having one of those. Is that fair?

Sam Harris:

It’s a completely different physics. As you move right of center, everything is upside down. Yeah, there’s no question. Al Franken got defenestrated for that arguably tasteless photo that he took. But at the same moment, we had Judge Roy Moore getting the Republican wagon circled around him for having groomed what, a 15-year-old or something as a 30-year-old man. There’s no comparison.

Preet Bharara:

So the Senate candidate in Maine, had that person been a Republican, probably would still be in the race.

Sam Harris:

Correct. Yeah.

Preet Bharara:

I think it’s probably a good thing he’s not in the race. So what’s the solution here?

Sam Harris:

Look at what’s happening now. We have, I would say, a genuinely sinister marriage left of center between the DSA, now an avowedly communist organization. You go to their website and look at what they’re for. They’re for the abolition of everything, the presidency, the Senate, capitalism, even private property. This is their platform. And there’s a marriage-

Preet Bharara:

What percentage of Americans believe that?

Sam Harris:

Oh, it’s got to be infinitesimal. You still have mainstream Democrats trying to figure out what to say about this and terrified to get on the wrong side of these fanatics. And you have Zohran Mamdani, the mayor of your fair city, who is thought to be the most charismatic and most influential Democrat in sight now. You have a fair number of Trojan Horse DSA candidates now getting elected or getting poised to get elected. They’re glad-handing people like Hasan Piker, this streamer who is a proper moral lunatic and someone who really should be. He’s our version of Nick Fuentes.

You have Democrats who can’t figure out what to do with their version of Nick Fuentes, mainstream Democrats. So there’s a level of confusion here, and it’s all getting wrapped up in this global explosion of antisemitism post-October 7th and an alliance with Islamism and Muslim brotherhood confected forces that predates this moment going back many, many decades. But it has achieved some kind of apotheosis post-October 7th. Now you have the mayor of New York talking about Israel every other sentence, as though that made any sense at all morally or politically.

The scale of confusion and the scale of consequence, I think, becomes something like equivalent once you wrap all of that up. That is the other side of the pie. And I’m very worried that the Democrats, in advance of the 2028 presidential election, are getting ready to commit something like suicide if they can’t get their heads screwed on straight here. Here’s one thing I’m very confident of. In a forced choice between fascism on the one hand, and I think Anne Applebaum’s point here is instructive, and communism, or I can’t figure out how to disavow communism on the other hand, will choose fascism. I don’t think there’s any question of that.

So Zohran Mamdani is a disaster. If he’s still as prominent as he is now, and you have characters like El-Sayed who are arguably worse coming out of the woodwork, and that is the complexion of the Democratic Party in 2028, I think we get JD Vance, we get Donald Trump Jr. We’ll get the MyPillow guy over that.

Preet Bharara:

I’ll be right back with Sam Harris after this. If you had to pick one quality, one virtue, or it’s opposite, one vice, it’s an unfair question, that you would identify as causing more of our problems and more of our disunity and more of our polarization and more of our bad choices than any other, what might it be? Is it ignorance? Is it tribalism? Is it loneliness? Is it lack of attention? Is it lead in the paint still? What would it be?

Sam Harris:

At the group level, and there are really two wings to this awful bird, I would say it’s tribalism and dogmatism. Our groupishness, our in-group bias, and the reflexiveness with which we feel solidarity for our in-group and contempt for the out-group and the way in which we filter information along those lines, but also dogmatism, the disposition to believe things, cherish things on bad evidence or no evidence, or despite mountains of contrary evidence.

And nowhere do we get that more reliably wrong than under the ages of religion. When you’re talking about groups of people, I think those are our most consequential sins. When you’re talking about just individuals and how they navigate their day-to-day lives, I think lying is the worst thing we do most of the time and the worst thing we tolerate in others. The fact that lying isn’t essentially fatal to one’s political ambitions and being caught in a lie, I think that’s a real problem.

Preet Bharara:

Well, it used to be.

Sam Harris:

Yeah. I think we need to figure out how to get back to a time when lying really mattered. Now it’s just expected of everybody. Obviously, Trump has brought a kind of 20 megaton change of landscape and expectation on that front. But I do think that it is just the most reliably corrupting and deranging thing we do and that others do in our presence. It just destroys culture. It destroys politics. When the consequences are appropriate, it destroys relationships, it destroys reputations. Once you stop doing it, it’s the thing that simplifies your life like no other thing. It’s like a kind of superpower to understand that you’re not going to lie to people.

Preet Bharara:

Yeah. I think we used to be a country, actually founded as a country on a charter called the Constitution that is all about one thing. Basically, it’s all about process. And we modify the word process often in that document by the word due, right? Due process. And that’s what fairness is, that’s what justice is, that’s what politics is. That’s what science is, it’s a process. And increasingly, people want what they want. And sometimes what they want is their political opponents to be locked up or a tax break or free groceries or whatever the case may be. And both in the criminal world that I have more familiarity with than other worlds, but also in other spaces too, my feeling is people just care about the outcome and they don’t give a shit how you get there. And that’s why you can explain the 25% or 30% that we talked about that and Applebaum cited.

As long as the despot gives me the stuff that I want, then I don’t care about the electoral college, I don’t care about voting, and all those sorts of things. And sort of relatedly, but maybe not completely, hypocrisy used to be the end of you politically. And I feel now, if you have a different view from the view you had before, what’s important is not that you changed your view, even if it was for political convenience. What’s important is, as I consider Sam’s hypocrisy, although I’m sure there never has been such a thing, have you changed your view in favor of mine or away from mine? And if you have changed your view in favor of mine, I was going to say I forgive you, but I don’t even forgive you. You’re just one of mine now. And what do I care that you used to have the wrong view on taxes, on abortion, on trade or whatever the case may be?

Now you’re an ally of mine and it’s great. And by the way, Donald Trump shows this in personnel, right? Is J.D. Vance a hypocrite to Donald Trump? No, he’s seen the way. And if on the other hand, you used to be on my side and your change of opinion, whether people want to call it hypocrisy or not, if I’m judging your change of view now, Sam, that’s away from mine, well, then I hate and despise you because you have the wrong view. And that may be a oversimplified way of thinking about all this, but as I see examples of these things happening, I think hypocrisy is an undervalued and under-reported vice compared to what it was in the past. And I don’t know how I feel about that, but that’s… What do you think about that?

Sam Harris:

Well, first, I don’t think we should be biased against the-

Preet Bharara:

Changing of opinions.

Sam Harris:

… the phenomenon of changing one’s views, even on core issues and extremely important ones, morally salient issues. What’s crucial is not where you arrive, but the process that got you there, right?

Preet Bharara:

Exactly, the process.

Sam Harris:

Yeah. And this goes to what it means to actually allow for forgiveness in society or even in one’s personal relationships. What does it mean to apologize for something and have that apology be accepted or acceptable? In that case, and this is analogous to a change of view, you need to sketch the path that you walked to no longer be that person who did that bad thing or thought that wrong thing.

If I used to be for the death penalty and now I’m no longer for it, or I used to be against it and now I’m for it, or I did something really objectionable in our friendship and offended you, but now I’m sorry for it and I hope you’ll forgive me, those are analogous transitions. And what they require is some account of how I have moved through thought space so as to be standing on the wrong spot at one point and now standing on the right one now, right? The things I realized, the things I saw, the things I had been overlooking, there’s some account. And if you can give that account, great. That’s what it is to become a better person.

Preet Bharara:

Yeah. No. And what you state is something very important, not just for people and their individual journeys and transformations, but also in our political institutions: the giving of reasons. Now, we have three branches of government and I spend a lot of time talking about all of them, but the judiciary often. And what distinguishes that branch of government from the others is that basically, with some exceptions and there’s been some backtracking with the shadow docket and things like that, that listeners of the podcast will be familiar with, but when a court decides they’re going to take your property or the court decides that you’re liable for fraud or that you’re guilty of something, that’s accompanied by an opinion. And then the people who disagree with that opinion, they get to write opinions. So the public can judge the authoritativeness and the legitimacy of the decision.

And you can agree or disagree. And sometimes a notable, more thoughtful dissent will over time win out and become the majority view at a future date, sometimes because of personnel, sometimes because people have advanced in their thinking or the world is in a different place. And really, the president doesn’t do it as much. And the reasons put forward are often BS. And that’s true of all presidencies because it’s a much more political branch, not to say that the courts are not political at all. And then the legislature, I don’t know, there’s some legislative history that is created around a bill. But I think the other problem is, and it’s with the courts as well, although they’re still at the high watermark of public reasons for why they think what they think and why they decide what they decide, but as a nation, generally, we don’t do that. How do you explain a terrible view?

Sam Harris:

Well, I think you can. The irony here is that there are examples. This is a fairly comic irony left of center. During the peak of the social justice hysteria around wokeness, again, this is not over, but I think we’re no longer at the peak, you had people basically calling for the utter reputational destruction of people, just unforgivable sins of whatever, having tweeted the wrong thing or used the wrong pronouns, just minor infractions in any normal moral universe.

And yet these same people would welcome, with open arms, a reformed murderer coming off of death row, presumably had he checked the right identitarian boxes. We all know the story. There are people who admit to have been guilty of murder and rape who come to Jesus or have some other reformatting of their hard drive and become new people. And that change in character is celebrated. So you really can come back from the dead, morally speaking. And yet in other contexts, people can’t escape the tweets they sent out as teenagers because that becomes some kind of indelible though crime that is supposed to close the door to any opportunity for them to thrive for the rest of their lives.

Preet Bharara:

Right. And there’s no ability to have a process by which you’re adjudicated, guilty even, and then do your time because it’s not a crime. And by the way, this is an interesting week for you to make that excellent point. You can be a guy with every privilege, but you had a health problem and you can assassinate the head of a company who’s the father of two, and some significant percentage of people, I think largely on the left, can think that you’re a folk hero. How can that be?

Sam Harris:

Well, again, this is dogmatism and tribalism at work. The generic framework that people should be defaulting to is the understanding that they would recoil from this behavior if you changed the colors of the team jerseys. If the thing you’re accepting when your side does it would be totally unacceptable to you if the other side did it, that should alarm you just morally and politically and you shouldn’t be that sort of citizen. What we need to understand and admit to ourselves is that the game has to have certain rules and we want both teams to play by them. You want the norms in place such that if your political opponent wins the next time, you’ll want those norms followed. So you shouldn’t be happy to see your guy in charge destroying every norm in sight because you should anticipate that the person you don’t like will behave in precisely that way next time.

So we need a game that’s fair, that’s well run. We need a game that leaves us capable of playing further rounds of this game indefinitely, no matter how partisan and, on some level, unacceptable the players become in any given round. That’s what’s been so alarming about Trump and Trumpism is the sense that we just don’t actually have the structure in place that we need. So now I’m asking you, Preet. It seems to me that one of the revelations of Trump is that we had norms where laws were supposed to be. Or we though norms were going to be strong enough, or we just assumed that unconsciously, but discovered that they really have to be backed up by laws in all kinds of places that we haven’t anticipated. And for that lack of structure, we’re noticing that our democracy can be nullified in all kinds of ways.

Congress isn’t a check on the powers of the presidency. If you have the party that controls Congress living in fear of a personality cult and unwilling to do anything, even when the president is going quite berserk in how he’s governing, whether it’s tariffs or wars or weaponizing the Justice Department or anything else, do you agree that we need structure that we don’t have? And if so, how do we get that structure?

Preet Bharara:

Yeah, I think it depends on the thing. I have very recently stopped using or tried to stop using the word norm because the word norm doesn’t really have any normative value because a norm is just what has been done before. And there have been bad norms and there have been good norms, right? It was a norm that there were no women anchors on the nightly news. It was a norm that people didn’t parent their children very much. All sorts of norms. What you have to think about is what is the reason for a good norm that you want to preserve and the violation of which and the trampling on which bothers you or is bad for democracy or bad for whatever institution you’re talking about, which I think means that the better term is does the norm stand for a democratic value or a democratic principle or a moral principle or an ethical principle or a legal principle or a value? And then you judge it on that ground.

Now, the problem is that in all things that allow discretion, there’s a tension between how much discretion you allow a certain authority figure, and you have to allow a lot of discretion to the president, this true in other fields too, versus how much you want to cabin them. It’s rules versus standards. And on some things you can. For example, most famously, one of the great political norms established in this country by George Washington was, which is extraordinary as you think about it, two terms. “I’m going to serve two terms.” And then Roosevelt, by the way, was pretty popular. I think he got elected four times, he kept running, he won us a world war. On the historian’s list, he comes up in the top few frequently. What did we do? We did. We codified the norm of two terms. We had this issue of the independence of the Justice Department. We had a president who I am fond of and an attorney general who I’m also fond of. They were both named Kennedy and they were brothers.

And the idea that you could have your brother be your attorney general is so mind-bogglingly crazy, we passed a law. You can’t do that. We didn’t pass a law that your prior defense attorney can’t be the attorney general. So there’s some limitations. If you pass a law that says the president can’t do X, Y, and Z, I think part of it is a well-considered concern that you’re handicapping a president who has to be able to deal with national security with a pretty broad hand. The problem is if you get someone in bad faith who is venal, who’s trying to make money, and who doesn’t plan and doesn’t understand how wars work, then you get abuses of that. But how you calibrate on the dial, how much you codify and how much you don’t is a very important and good question for a lot of people, but it’s not always solvable.

Sam Harris:

How does the emoluments clause not apply to the president in the current moment of receiving $400 million jets from Qatar?

Preet Bharara:

It may. And maybe people are looking at it. There was an emoluments clause case that I forget what happened to it, but I don’t think it was ultimately successful in the first term. These are really good questions. And I think a lot of these things are going to be looked at and a lot of these things are going to be investigated. And look, Trump is also very clever in how he does the bad things that he does. I don’t think it’s so clever anymore that everything’s now in the open.

Sam Harris:

How is he clever? I don’t understand.

Preet Bharara:

Well, he’s not in prison.

Sam Harris:

He has this superpower of shamelessness. I’m sure he does things in secret too, but so much of this is in plain view. And there’s so much of it. The amount of it is so overwhelming that you can’t keep any scandal in view for even a full news cycle because the next scandal just pushed it out of your mind. This is one thing that if it’s not clever, it’s genuinely calculated, I think, to use Steve Bannon’s line of flooding his own ship.

Preet Bharara:

Flooding his own. But I think it’s just sort of the way he is. I’ll give you a personal example. I had been representing Senator Adam Schiff, who has not yet been on these bogus allegations of mortgage fraud.

And famously, when Donald Trump issued that social media post on Truth Social about how people were treacherous and need to go to prison, literally, in advance of the opening of an investigation, the conduct of an investigation, any court proceeding, literally, the President of the United States Commander-in-Chief, who also calls himself the chief federal law enforcement officer of the country, is saying that certain people are guilty and should go to prison, and in the case of some, should get the death penalty.

In the past, I would kind of invert, this is a corollary of what J.D. Vance said, in the old days, if a sitting President of the United States openly called for the death penalty, which he could maybe cause to happen because he controls the Justice Department, of a duly elected member of the Senate from the largest state in the country from the other party, that would be close to presidency ending that day. Would it not? Not anymore. Now it’s page 12.

Sam Harris:

He accused President Obama of treason. That might confer the death penalty.

Preet Bharara:

Now it’s page 12, if it’s on any page at all.

Sam Harris:

Yeah.

Preet Bharara:

And I don’t know how you counter that.

Sam Harris:

But again, there’s nothing clever about this. This is a sign of what the culture will accept. That’s the Chauncey Gardiner of it all. He’s in a situation where he’s got 80 million people or 60 million people or now maybe 50 million people, I don’t know what the bottom really is here, but the floor or something like that, who will accept anything, who will rally to anything, who will celebrate any indiscretion. When you have that, and we only have two viable parties, when you have one party that is totally enthralled to this base not going to make a move against the cult leader in view of how this base can get riled up, our whole political process is seized up.

Preet Bharara:

You said a few minutes ago that wokeism is not at its peak. Wouldn’t you say the same is true of Trumpism, whatever that is?

Sam Harris:

Yeah, I would say there’s signs of it unraveling. One, he can’t run again, whatever he is claiming about running for a third term. That’s just-

Preet Bharara:

You lose juice just from that.

Sam Harris:

And it’s hard to see who’s going to inherit the mantle or who can inherit the mantle. I don’t think JD Vance can be the next apotheosis of American populist stupidity right of center. He’s a very opportunistic shape-shifting character, obviously. And I think he’s much, much smarter than Trump, but he’s much less charismatic and people don’t like him in the same way. He’s much less entertaining.

I just don’t think he’s going to be a good demagogue in the same way, albeit it would be scary if he managed it. There are other signs. The fact that even Trump couldn’t control his base around the Epstein business. He’s now moved on to distract everyone with a war and with tariffs and with many other things, but presumably this could come roaring back. The fact that there was a real break with the base on that and a real sense of betrayal for many there, and the fact that some people have peeled off permanently like Tucker Carlson and Candace Owens and these other crackpots.

Preet Bharara:

Marjorie Taylor Greene.

Sam Harris:

Yeah. But people have still enormous audiences right of center. That is a sign of some kind of political erosion. I hesitate to say it’s a hopeful sign of anything, but it’s a sign that the cult has fragmented over there.

Preet Bharara:

Do you think that, not to use the Latin unnecessarily, but that Trump is too generous and he’s just one of a kind, a unique figure in history, and people will, as they always do, try to emulate him and will fail like Marco Rubio, certainly? I remember people tried that in 2016 and they thought Trump is getting traction because he’s using these baby insults, playground insults.

And then Marco Rubio tried it one day and it fell flat because it wasn’t him. When Donald Trump, you said this already, when he’s an asshole, it’s not an act, right? And Marco Rubio, when he was starting to go on the campaign trail and talk about the size of Trump’s hands, it didn’t work. And I don’t know that there’s a figure as bereft of so many qualities that you would want in a leader as Donald Trump is that exists in any shape or form.

Sam Harris:

Well, someone’s once pointed this out, forgive me, I forgot who it was, but I think it’s a good point, that Trump functions by the physics of celebrity, not ordinary politics. Trump was a genuine celebrity when he came crashing into our politics. And there’s something about that, especially in the American context, that just changes all the registers and you can fly in very different ways through the media. So yeah, I guess it’s possible we could have someone else who’s also famous in similar ways decide they want to run for office and reap some of those same benefits. I don’t know who that person would be. And perhaps there’s a left-wing version of that too.

Preet Bharara:

There could totally be.

Sam Harris:

But it matters. If you’re going to hang this around the neck of one living human being, I think Mark Burnett is a good candidate.

Preet Bharara:

The producer of The Apprentice.

Sam Harris:

Yeah. He gave us Trump. He marketed Trump as a fake business genius when he was really just a game show host for, what was it, 14 seasons, it was like 12 years or something on The Apprentice, and just convinced the country that he was a business genius. And what could be better than having a real business genius come into our politics and sort things out? This is precisely what the country needs. He knows how to get things done. He knows how to build buildings. He built three buildings in Manhattan, if I’m not mistaken. He’s not even on the long list of most successful real estate developers in New York, and yet half the country thought he was one of the richest and most successful business people we’ve ever produced.

Preet Bharara:

Well, what’s astounding to me is we have so much access to information more broadly and more quickly than ever before. And the example that I always used that makes me not have a lot of hope that we can get past these things, because there’s some things that are judgment calls. Was it right to move the embassy in Israel? Was it right to attack Iran? Those are quite subjective things. But on an objective piece of data, I remember hearing when MAGA supporters were asked if the stock market was up or down under Biden at a particular point, overwhelmingly they said it was down. And that was just wrong. And that’s verifiably wrong, demonstrably wrong.

Sam Harris:

Yeah. I don’t know what a reset to normalcy will look like. I do worry that even in the presence of a perfectly normal new president, whether Democrat or Republican, I don’t know how you’d get a Republican at this point, but I think the first job of the next normal president, in a parent defiance of their own self-interest, would be for them to say, “Listen, I’m going to come in here and among other things, do a postmortem on how things got away from us the last decade, especially in the executive branch. I’m going to try to figure out how we as a country can avoid this ever happening again. And if that means limiting my power over the next four years, let’s do that.” I think that has to be somebody’s commitment.

Preet Bharara:

There’s a lot of people aching for some reverse retribution. What do you think about those people?

Sam Harris:

Retribution’s the wrong frame, but I think consequences for much of what has happened is something we should seek. But it could be that it’s so bad that we’re going to basically have to declare bankruptcy and have something like a truth and reconciliation commission for all of this like, “Okay, everyone gets a mulligan on this. We understand how everyone went crazy for the last 10 years. As long as you say you’re sorry and pledge not to do that again, we’re going to welcome you back.”

When we lift the hood on what has happened in the second Trump term, all of the people who have collaborated in what is effectively a kleptocratic distortion of American policy on every level, and there are billionaires wrapped up in this too, the cryptocurrency of it all, the thing that has enriched the Trump family more than anything, there are some very big names adjacent to all of this. Are laws being broken? If they’re not, we don’t have the right laws, but presumably there are laws being broken and there are things that can be investigated. I don’t know where this goes. It’s going to be perceived to be just purely vindictive and without merit. And yet the obvious merit is there to be seen. You cannot have a president who trades away American policy and power purely out of self-interest, and that’s what we have.

Preet Bharara:

He’s going to be gone. And in the same way that people say that his Supreme Court appointments live on many, many decades and years after the appointing president is gone, so will a lot of these features of Trumpism. And he is undermined. The number of people now who have given a though to why it is important and why it is good for their liberty and for their equal protection, that a president have no business in directing the prosecutions of particular humans or protecting and guarding against the prosecutions of particular humans, the number of people who don’t understand that point or don’t agree with that point is multiple orders of magnitude more than it was.

And the hard part is you can have your commissions, but how do you undo that, brain damage is not a great word, but how do you undo that? Because people’s faith in these things that we have called norms, we could call values or principles, is eroded. Look, after you’ve mentioned Nixon, the other analog is Nixon won 49 states. The guy wins 49 states and then his own party says, “You got to get the hell out.” And a lot of things happened after that. A lot of reforms came after that, many of which have been undone recently. But there was a consensus. Even if you look at the few little things that John Cornyn, and others who are no longer capable of serving in office, did, you see how much power there is if Republicans joined with Democrats. I don’t know how many are going to do that when he’s gone.

Sam Harris:

We need obvious grownups in the room. And then we need to figure out how to create a system that is impervious to this level of corruption and perverse incentives in the future. Clearly, our system needs shoring up somehow. Our institutions need shoring up. The people doing it can’t be people like Donald Trump Jr. or any other cartoon character that has come out of this process.

Preet Bharara:

Yeah, I agree with all that.

Sam Harris:

Right.

Preet Bharara:

But we picked him.

Sam Harris:

Sort of.

Preet Bharara:

We picked him. And for all of this discussion that I totally agree with and that you and I have been having with each other and with other people for over a decade now, shoring of institutions, the changing of laws, the codifying of norms, none of that is a particularly strong bulwark against the appointment or election of somebody who doesn’t give a shit about them because there’s enough give and play in all of those things. The way people have conducted themselves in the Trump administration compared to Obama and Biden, whether you like one or the other, no provision of the Constitution was altered.

I’m not aware of any significant provision of Title 18 of the US code, which is mostly the criminal code, was changed. It was the personnel. It was the people. So to me, and I don’t know how you do this, if we can convince people to hire better leaders, that’s got to go hand in hand with doing whatever we can do about the institutions. You mentioned a few minutes ago that the Democrats need a person of a certain quality, nature, temperament, and viewpoint. Who’s your person for that? Give us a name and then I’ll let you go.

Sam Harris:

I wish I had a name to trumpet at this point. I would love to get behind someone and push as early as possible to-

Preet Bharara:

Is that because there’s a luxury of options or-

Sam Harris:

No.

Preet Bharara:

… because you can’t think of-

Sam Harris:

No. There are some people who I think are possible with certain caveats, but there’s no one now who is obviously going to disavow the activist craziness that so many Democrats still can’t figure out how to disentangle from and who doesn’t also have some obvious albatrosses around their neck. Take someone like Gavin Newsom. Gavin Newsom is in some ways plausible. He’s telegenic. He’s willing to fight. He’s not woke, although I’m not sure he’s been as articulate as he could be in how he de-wokified himself. He has obvious problems. And one of those problems is just the bad PR that California has for good and bad reasons in the other 49 states. You have to somehow sell that California itself is not a disaster zone.

Preet Bharara:

But you know what he has, that you were mentioning earlier, it occurs to me, that he, and it’s very different from Trump, has not presented himself and has not been a paragon of virtue. So if he falls and stumbles or we find out about things, he didn’t say he was Mother Teresa, he didn’t say he was a Dalai Lama. That’s an advantage over some people, politically. And that sounds like a weird thing to say that, but do you agree with that?

Sam Harris:

Well, no, because I think it would be possible to find a candidate who also is just a genuinely good person, whom when you double click on their life and triple click on their life, it doesn’t immediately disgorge every skeleton in their closet and every form of hypocrisy and marital infidelity and business frauds. I’m not accusing Newsom of all those things. I’m just saying that generically, there are good people out there whose lives are not disaster zones. And presumably, we could find one who’s telegenic enough to run for president. It’s a nation of 350-some-odd million people at this point.

Preet Bharara:

Right. But that doesn’t prevent you from being despised. And I will never understand, A, why so many people sort of have unconditional love for Trump, but I’m not sure which is a tougher question or the tougher observation to get my head around that one or that there are lots and lots and lots of people who have just visceral hatred for Barack Obama who did not have any of those scandals. I did not have visceral hatred for Mitt Romney or for John McCain, who I admired quite a bit. They didn’t become president, but neither of the Bushes. So I don’t know what’s harder to understand, the depth of the love on the part of some people for Trump or the depth of the hatred on the part of some people for Obama. I don’t know if you do, and then I’ll let you go.

Sam Harris:

Well, I think many people, everyone doesn’t fall into this category, but many, many Americans are allergic to sanctimony. And this is the other side of hypocrisy. The reason why hypocrisy is so galling is that hypocrisy is what you haven’t had when someone’s sanctimony is revealed to have been false like, “I’m super preachy. I’m on my high horse. I’m judging you for all of your moral indiscretions.” But then lo and behold, you find that I cheated on my wife and did all kinds of awful things, and now I’m embarrassed. So people love that transition from sanctimony to proven hypocrisy, and they love to destroy people on that basis. And then you have someone like Trump who’s not pretending to be anything and he’s not judging you in any way at all. This is why I called him at one point fat Jesus. I’ll-eat-anything-I-want Jesus. I’ll-grab-them-by-the-pussy Jesus.

He absolves you of your sins because he is a walking bag of sinfulness. He couldn’t possibly judge you. And yet he manages to turn that all around and brag that he’s a genius and richer than Midas and more elite than all the elites. But what he’s signaling to people is hatred of the elites, hatred of their norms, and above all, hatred of their sanctimony. He’s calling bullshit on the judgment that’s coming down from on high. “You didn’t get an Ivy League degree. You’re not good enough to be in our club. And we’re judging you for your love of NASCAR and everything else that is culturally tagged as beneath us.” Obama inherited all of the baggage of elitism and sanctimony, and being Black gave all of that top spin. And so yeah, he and Michelle were guilty of a terrorist fist bump and-

Preet Bharara:

A terrorist fist bump, right. Sam, pleasure having you. Talked your ear off. We went for a long time and it could have gone a lot longer. It’s always a treat.

Sam Harris:

Great to see you, Preet.

Preet Bharara:

My conversation with Sam Harris continues for members of the Insider community. We discuss the distinction between a liar and a bullshitter and how that applies to President Trump. Does it even matter?

Sam Harris:

The bullshitter is an even greater enemy of the truth than the liar is because at least the liar is tracking what the truth is to engineer what he says.

Preet Bharara:

To try out the membership, head to staytuned.substack.com. Again, that’s staytuned.substack.com. After the break, I’ll answer your questions about Attorney General Todd Blanche’s comments that the Justice Department isn’t independent from the president.

Now let’s get to your questions. This question comes as an email from Calvin who writes, “What are your thoughts on Todd Blanche’s recent comments on Meet the Press about the independence of the Attorney General?” It’s a very good question. My short answer is, I think they were unfortunate. To recap for people who didn’t hear or see it, on last weekend’s episode of Meet the Press, Attorney General Todd Blanche was the guest. And Kristen Welker, the host, wasted no time getting to the heart of the issue. Her first question was-

Kristen Welker:

Can you pledge that the Justice Department will always act independently of the White House?

Preet Bharara:

Now that’s an important question. Every Attorney General nominee has been asked the question. Every Attorney General appointee who has been put in office has been evaluated on on this question. And Mr. Blanche’s response was fairly striking. And he must have known it was going to be fairly striking. And it was this.

Todd Blanche:

There’s a big difference between saying we will always do our job and investigate any case and act independently of the White House. No, I’m not going to pledge that. And no attorney general should ever pledge that.

Preet Bharara:

Now, I’m going to say in a moment what I think about the quality of the questions and the quality of the answers and the quality, or lack thereof, of a Washington Post piece that in its title purports to support Mr. Blanche’s position, but I think ultimately does not. But let me first say a couple of things. You have heard me recite, many, many times on this podcast, on the Insider Podcast, and in public appearances, going back to the time that I myself oversaw an investigation relating to the independence or lack of independence of US attorneys in the Justice Department 19 years ago when I worked in the Senate. And then, as now, reasonable people understand this question to mean the following: should members of the Justice Department be taking instruction from political figures, whether it’s an elected senator or an elected president, or people in the political orbit of a senator or president? Should they be taking direction from them on who, by name, they should prosecute for political reasons because they’re political adversaries?

I think most people would agree whether you have a disagreement about what the Constitution demands or what equal protection demands or what the law demands, that you generally don’t want to live in a country where the President of the United States or a political figure gives such orders to harass or incapacitate a political opponent and that the person receiving the order blithely goes along with it rather than pushing back or resigning. And on the flip side of the coin, the same goes for the protection of allies. That is not American. That is not the way we do business in the United States of America. That’s a banana republic. And that means that what’s good for the goose is good for the gander. And I don’t think we want to live in a country where we go back and forth in that regard. So questions about independence of the Justice Department shouldn’t be snarkily viewed in the way this Washington Post piece seems to do so.

It’s a legitimate question and we deserve a legitimate answer. But putting aside the exchange between a talk show host and the sitting attorney general, let’s talk about what the real issue is. There is such a thing as a special counsel, there used to be a thing called a dependent counsel. So by the laws of sort of logic and language, to the extent that the attorney general, under any party’s president, from time to time feels the need for a hyper sort of independence, we have a provision for that, which necessarily means that the attorney general himself or herself either isn’t fully independent or is not perceived to be fully independent, right? Because it’s not only important, as people always say, that justice be done, it must be seen to be done.

So this question even I would answer as no, because it’s an overbroad question about independence because there’s lots of ways in which all reasonable people think that the White House and the Justice Department, like all the departments, need to be aligned. If your Justice Department decided one day it didn’t want to prosecute drug crimes, well, the President has a say in that and says that should be a priority. If suddenly overdoses from a particular drug, which has happened, for example, when the opioid crisis started causing tens of thousands of Americans to die every year and you had an attorney general who said, “I don’t care about that,” that would be a problem and you shouldn’t be independent from that. But that’s not what the spirit of the question was.

Mr. Blanche, who has to deal with the press and has to please a particular viewer of the press, whether it’s Meet the Press or anything else, decide, I think, to take advantage of the breadth of the question and the non-specific nature of the question to say, “I’m not going to pledge that. And no attorney general should ever pledge that.” And I understand that. Then it happens again. Kristen Welker, who I respect and admire, and I think is a very good journalist, but like many good journalists and many good members of Congress, don’t necessarily ask the best questions. And part of that is because there’s a time constraint, so you can’t ask follow-ups. And her question to Mr. Blanche was-

Kristen Welker:

If the President asks you to do something that you feel crosses an ethical or legal line, would you do it?

Preet Bharara:

Now the attorney general never really answers that question. He fights the hypothetical.

Todd Blanche:

The President will never ask me to do something unethical or legal or illegal. He never has. He never will.

Preet Bharara:

The question to Todd Blanche was not, “What would you do if the President asked you to do something that is unethical, but that you feel is unethical?” That’s doing a lot of work, that phrase. So, you have to have an understanding as to what this particular appointee’s line is. And if he doesn’t have any line, then that tells you something different about the answer to the question, which, as I’ve said, he didn’t answer anyway. So as for the Washington Post editorial that I referenced earlier, I have some things to say about it. A lot of people pointed out this Washington Post piece and were irritated largely because of what it seemed to be saying based on the title.

And that’s often true about opinion pieces in particular. And the editorial board’s title is Todd Blanche is right about DOJ ‘independence,’ like it or not. So it’s a little bit provocative. But then you read further into the editorial and it actually agrees with the position that I and many other people have taken, although it gets there in a fairly obnoxious and condescending way. For example, I find it kind of condescending that the Washington Post felt it necessary to say with respect to the Meet the Press interview, quote, “That this exchange was a minor news event calls for a constitutional refresher,” end quote.

Well, that’s plain stupid because even though you can criticize the rigor with which the question was asked or the broad non-answer that was given by Todd Blanche, the person in need of a constitutional refresher actually sits at 1600 Pennsylvania Avenue and his new Attorney General may need the same. And the Washington Post piece basically acknowledges that later, notwithstanding the provocative and condescending title and that sentence I just read you. Because it says that when it comes to specific prosecutions, what you want to have is an official, whether it’s the attorney general or even another cabinet agencies who have the ability, the wherewithal, and the integrity to tell the president no.

That’s the kind of independence we’re talking about. We’re not talking about special counsel independence or statutory independent counsel independence. The Washington Post notes, towards the end of its article without seeming to understand what it had written before, the following, quote, “Ideally, senior officials, including the attorney general, have enough standing to tell the president no and are willing to resign if they are overridden on a matter of significant importance.” See what I mean? It goes on to say William P. Barr, who was Attorney General in Trump’s first term, wrote in his memoir that he told the President before his nomination that he, quote, “could not tolerate political interference in criminal cases,” end quote, as opposed to civil cases.

And Barr went on to say, in his memoir, “And would take the job only based on that understanding.” That’s the kind of independence we’re talking about. Now, you could have an argument about whether or not Bill Barr lived up to that ideal. In particular, you can have an argument about whether or not Bill Barr lived up to that ideal when it came to the timing and substantive release of the Mueller report. But at least he came into the job expressing what I think a normal, reasonable person would understand the independence standard to be. So the constitutional refresher is not needed by, I think, a lot of people as the Washington Post suggests.

This is the kind of independence we mean, and this is what Kristen Welker was obviously getting at, are you prepared, as the Washington Post itself supports, to tell the president no sometimes? And are you prepared to resign if you’re overridden on a matter of significant importance? And what could be more important than the categories that are really at issue here? And they are direction by the sitting commander-in-chief, the sitting President of the United States to prosecute his enemies, whether that message is conveyed personally on the telephone or in a meeting or otherwise publicly and broadly for everyone to see on social media, and on the flip side of the coin to protect his allies and get people who have committed serious crimes, is it appropriate for those exonerations to be directed by the president? And I think reasonable people would say, echoing Bill Barr in aspiration, if not indeed, “But that’s not right. That’s not appropriate.”

Is it constitutional? Sure. Is it technically legal? I guess with the exception that if that kind of record is made, there’s a body of law called vindictive and selective prosecution that will undo any of those efforts. So it will all be for naught. So the law does recognize it in some way. Every administration since Nixon has recognized it in some way for good reason, the Ford administration all the way up to the Biden administration. The Bush administration had guidelines about the ways in which the Department of Justice should be safeguarded from political interference from the White House. What is that? That’s independence. The Obama administration did? Every administration for half a century has had this in place. So the constitutional refresher, I suggest, needs to be directed elsewhere.

This question came as an email from Bob who wrote, “I was listening to your discussion with Joyce Vance on the Insider Podcast about the January 6th commutations. And I was struck by your concerns about Judge Amit Mehta expressing his own views when granting the Justice Department’s request. Isn’t there a value in judges explaining their reasoning and any misgivings they may have about a ruling they’re required to make? Why are you reluctant to have a judge include those concerns in an opinion?” Bob, thanks for the question.

I just want to clarify that I am not necessarily reluctant to have a judge include concerns. I was trying to make the point that it’s an issue to address and whether or not there’s a limiting principle to the question of whether or not a judge should or should not, depending on the circumstances, go on at length about their own view, personal or judicial, about things that are not necessary to support the decision that they’re making in the case. But before I explain what I said, for anyone who didn’t listen to last week’s Insider episode, the DOJ recently asked Judge Mehta to vacate the seditious conspiracy convictions of eight members of the Oath Keepers for their roles in January 6th. All of them were duly convicted for serious crimes. The judge ultimately granted that request, but as you point out in your question, he did so reluctantly and he made his misgivings very clear in his opinion at some length. Joyce quoted the end of his opinion on the show.

Joyce Vance:

This is the last of the prosecutions seeking to hold accountable those responsible for the events of January 6th. That book is now closed. Today’s epilogue diminishes the gravity of that day, denigrates the work of the prosecutors and law enforcement officers who secured these convictions, and excuses criminal acts that caused a centuries-long pillar of our democracy, the peaceful transfer of presidential power, to buckle.

Preet Bharara:

But just to clarify, I actually endorsed what the judge did in this particular case. I said, quote, “If I were a judge, I probably would’ve found a way to make a statement like that, but is there a good faith argument that he was out of his lane in pontificating like that?” End quote. I think that’s a legitimate question.

And then I said at the end of the show, “Here, because it’s so important to the nation, because people feel so strongly, because it dealt in violence to not just a building that is a manifestation of our democracy, but democracy itself and all of that, you and I,” meaning Joyce and I, “have probably the same view that you just expressed. It’s okay. But,” and here’s the important part in why I raised the question, “but in lesser cases, in garden variety cases that you and I oversaw, I don’t think we had such a magnanimous view from time to time when a judge decided, yeah, the law is X. I have to rule in a particular way, but I’m still going to beat the out of the government or the other side because I feel like it and because I have a pen.” That’s the only point I was trying to make.

But all that said, Bob, your question gets to a very important distinction. There is absolutely value in judges explaining why they are ruling the way they are. In fact, it’s fundamental to their authority and their authoritativeness and people’s respect for the law and for the judiciary. A fundamental purpose of the judiciary is not just to decide, but to explain how they decided and why they decided, for a lot of reasons. It creates a record for the defendant and the public to understand why a judge ruled in a certain way. By the way, we’ve been talking about the opposite, the creeping backwards of this principle, like when the Supreme Court has more recently issued decisions off its shadow docket and doesn’t issue an opinion explaining the reasoning for his decision. That’s no good at all.

But the difference in this case, that I’m trying to get to, is that Judge Mehta’s comments at the end of his opinion weren’t necessary to explaining the legal basis for his rulings. And that’s the thing that creates some amount of debate. In judicial opinions, we distinguish, as lawyers, between what’s called the holding, that’s the legal reasoning necessary to decide the case, and something else which lawyers call dicta, meaning observations or commentary that are not necessary to reach the result. And sometimes that’s important for context. Some judges use it more, some judges use it less. But dicta, the material in an opinion that doesn’t support the holding itself, has no binding precedential value for future cases, though it can still be cited. And a lot of Judge Mehta’s closing observations are mostly in that latter category.

They tell us how he viewed the consequences of the Justice Department’s decision, but they weren’t necessary for his legal conclusion. And as I said, given the circumstances and given the stakes and given the spotlight and given the trend that’s going on with respect to the administration of justice in this country, Joyce and I both acknowledged that if we had been the judge, we might have said something similar because it is not always the case that that kind of rumination about being constrained by the law will be found to be welcomed by every party. So sometimes it’s useful, even if we agree with something someone has done, to thoughtfully ask the question, “Well, why was that okay? When would it not be okay? How okay was it?” And that’s all we were doing here. And I think in this case, it was important to ask the question.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Sam Harris. 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. You can reach me on Twitter or BlueSky @PreetBharara with the hashtag #AskPreet. You can also call and leave me a message at 833-997-7338. That’s 833-99-PREET. Or you can send an email to letters@cafe.com.

Stay tuned is now on Substack. Head to staytuned.substack.com to watch live streams, get updates about new podcast episodes, and more. That’s staytuned.substack.com. Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The supervising producer is Jake Kaplan. The associate producer is Claudia Hernández. The audio and video producer is Nat Weiner. The senior audio producer is Matthew Billy, and the marketing manager is Liana Greenway. Our music is by Andrew Dost. I’m your host, Preet Bharara. As always, stay tuned.