All the President’s Lawyers (with Bob Bauer)
Air date: 11/29/18
Preet Bharara:
Bob Bauer, thank you for being on the show.
Bob Bauer:
It’s a pleasure. Thank you for having me.
Preet Bharara:
We have a lot of things to talk about some things that are timeless, some things that have just happened, but I thought we’d start with the basics. You’re one of the few people in the country who has ever had the position of White House Counsel. I’ve been practicing law for a while, and have dealt with White House Counsels before. Even I am a little confused. What the hell does the White House Counsel do?
Bob Bauer:
It depends on the administration, it depends on the president. There was no White House Counsel until the Roosevelt administration and even then the White House Counsel really didn’t function in a legal advisory capacity. The first White House Counsel was primarily a policy and political advisor. That remained the case, ironically, until about the Nixon administration. At which point, John Dean conceived of it as a role in which someone led a small law office providing legal advice and support to the West Wing, to the executive branch, to the Executive Office of the President.
Bob Bauer:
The first most important point to emphasize is that the White House Counsel is an institutional lawyer, not a personal lawyer to the President. That seems to be obvious, that’s been debated a great deal. Readers in various op eds have been reminded of that.
Preet Bharara:
Where’s that written? Did you get a little pamphlet when you showed up that says you’re the institutional lawyer?
Bob Bauer:
No, no, no. What you do, I think, and this is probably typical of incoming White House Counsels, you seek out the advice of former occupants of the office, your immediate predecessor and anybody else in any other administration whom you can speak with. You understand, first and foremost, it follows from your status as a government paid employee or not on the personal payroll of the President, you’re paid for by the taxpayers.
Bob Bauer:
That distinction between the public and the private breaks down a little bit, or at least, it creates some interesting tensions because the president that you represent is a flesh and blood individual, who was elected to that particular office, having made certain policy and other commitments and having chosen someone to be his or her counsel. Of course, that client that you’re advising, the Office of the President, is embodied in that particular individual. Keeping an eye, however, on the institutional interests as you advise the president is a critical responsibility of a White House Counsel.
Preet Bharara:
Most of the time, you would think then that the duty aligns and they are in sync with each other. Your duty to the office of the presidency should also inure to the benefit of the occupant at that time of the presidency. In what circumstances do those two things come into conflict that requires a proper minded White House Counsel to give advice that is more for the benefit of the office than for the office holder?
Bob Bauer:
Two particular situations come to mind. I don’t think that they’re all inclusive, but they’re illustrative. One has to do with every president who runs for re-election. This wound up being a pit into which John Dean fell in the Nixon administration, which is, you’re responsible to the president as a public official, you’re not actually advising the president as a candidate for political office. In those circumstances, there has to be a really strict separation between the institutional advice you give and the advice in the middle of an election campaign.
Bob Bauer:
The President may be looking for some help. The President may be looking for that is not the White House Counsel’s to give. The other which I think we’ve had some experience with recently, is a president who has no conception of how government works, no understanding of the role of the White House Counsel and who in his business life, and I’m obviously speaking to President Trump here, has had an entirely instrumental view of the role of lawyers and of legal advice. Because he, the president, struggles so much with understanding the difference between the institutional and the personal role that obviously puts an enormous amount of pressure on the lawyer.
Preet Bharara:
Let me ask a question this way. There are sort of three prominent kinds of lawyers associated with this president. There’s the White House Counsel, used to be Don Mcgahn, now is someone new, we’ll get to Don Mcgahn in a second. There’s the attorney general, which at the moment is acting Attorney General Matt Whitaker and was Jeff Sessions. Then, he’s got his personal lawyers, and that’s sort of a revolving door of lawyers.
Preet Bharara:
Currently, Emmet Flood who you don’t hear a lot about where from, but also Rudy Giuliani and others. How are they supposed to interact with each other and keep separation from each other and serve their particular roles correctly?
Bob Bauer:
It’s tricky. Obviously, the president operates in the West Wing and some of the demands that the President may, for example, encounter from the Office of the Special Counsel calls for officials to give testimony, calls for potentially official documents or an accounting of official actions to be given. The White House Counsel becomes involved in thinking through, for example, questions of executive privilege.
Preet Bharara:
That’s all proper. For example, it is not automatically the case that you have a special counsel who’s investigating various things that might affect the White House that all of a sudden the President has to get a personal lawyer. It’s perfectly appropriate for the White House Counsel. For example, I helped to investigate the Department of Justice when I worked in the Senate.
Preet Bharara:
When I worked for Senator Schumer, and it was a bipartisan investigation and the staffers and the senators would go to the White House. We would haggle about executive privilege and about documents and we dealt with Fred Fielding, the former White House Counsel for George W. Bush. There was no other lawyer. That was proper, right?
Bob Bauer:
Correct. There are circumstances in which an investigation takes place. Here’s an example, where there are questions that necessarily bear on the weight that the office was conducted, like an inquiry into obstruction of justice. The White House Counsel is going to end up being involved in receiving demands for information from government officials and documents from the government that bear on the investigation to that particular allegation.
Bob Bauer:
That president, if the President himself is potentially a subject or a target of an obstruction, inquiry is going to require personal representation. Then, the question is, how do the lines can be kept straight? That is a role that Ty Cobb played at one point in the Trump White House, it appears that role has now come to Emmet Flood that they operate as government employees. They’re not personal lawyers, but they’re also not in the White House Counsel.
Preet Bharara:
Right. It’s an odd Hybrid.
Bob Bauer:
It’s an odd hybrid and their role is to try to make sure in these special circumstances that the personal as well as the official or the complex entanglement of the personal and the official are in practice addressed appropriately.
Preet Bharara:
Don Mcgahn was the first White House Counsel for President Trump. Did you know him personally?
Bob Bauer:
I do.
Preet Bharara:
Do you have an opinion of how he did his job?
Bob Bauer:
Yes, I have an opinion on how somebody could make the best case for Don Mcgahn having served this particular president who was obviously hard on the legal furniture.
Preet Bharara:
He treated him like furniture like maybe a pet would treat the furniture sometimes.
Bob Bauer:
Yes. I think that Don Mcgahn and the people who support Don Mcgahn, and particularly the people in the Congress, who have been close to Don Mcgahn, he has a very well known, strong relationship with the republic congressional leadership and particularly in the Senate, will say the Don Mcgahn made the most of a very, very difficult situation.
Bob Bauer:
He leaves office having clearly laid out there for the world to know when I think this all came out of the West Wing generally that he was focused on judicial nominations and deregulation.
Preet Bharara:
Which are two successes for this administration from their perspective?
Bob Bauer:
From their perspective, two successes, particularly on judicial nominations, including two Supreme Court confirmations the last [crosstalk 00:26:16].
Preet Bharara:
It was a bruiser. It’s was a bruiser.
Bob Bauer:
It was very difficult. Both of them, both of those nominees are now sitting on the Supreme Court. Of course, they’ve had tremendous success in placing judges in district courts and Court of Appeals around the country. Then, whatever he contributed to the deregulatory effort on Russia, when all is said and done. The press and this is of course all what we know from general reporting suggests that Don Mcgahn made an effort to basically hold the line against the President’s complete misunderstanding of what he was permitted to do in his own self defense.
Bob Bauer:
The President apparently at one point wanted Don Mcgahn to pressure then Attorney General Jeff Sessions for the firing of Bob Mueller. Don Mcgahn refused to be a party to that.
Preet Bharara:
Can be pause there for a second?
Bob Bauer:
Certainly.
Preet Bharara:
This is a speculation. You work in the White House, how is it that we know all this? In other way, it’s a roundabout way of my saying, was Don Mcgahn, you can conjecture if you’re prepared to, making a case for his own reputation in the press or through allies? Because otherwise, how do we know this?
Bob Bauer:
Of course, we know there’s a leak machine. We also know that you know better than I do that in these cases, there’s a defense party that’s constantly talking among themselves. Some of these leaks come either from the directly involved defense counsel or from other defense counsel talking to the press who were buying favor with the reporters that they deal with.
Preet Bharara:
Right. Most of the weeks, I think, depending on your perspective, and if you take the perspective of sort of rational minded institutional respecting lawyers, I take you to be such a person. I’d like to think I’m such a person, and there are lots of others. Most of the leaks about Don Mcgahn’s conduct all paint him in an excellent light, maybe not an excellent light, but paint him in the light that you’ve been describing as someone who held the line.
Bob Bauer:
Yes, some people might criticize still. For example, there are some who may have been critical of his willingness even to raise with Jeff Sessions at the President’s request, whether he’d be willing to reverse his recusal in the Russia matter. It appears that when Sessions told Mcgahn that he wasn’t prepared to reconsider the recusal, Mcgahn walked away from it and didn’t put any additional pressure on him.
Bob Bauer:
You’re right, on the whole, I think, that narrative has been favorable to Mcgahn. I don’t know whether it came from Mcgahn or whether it came from his allies. I don’t know whether, for example, there were some people in the know, who thought it was helpful to let the president know that these stories were not helpful, given the sampling of how bad those stories for him could be, who’s to say?
Preet Bharara:
Do you find it extraordinary that if it’s true, and I believe it to be, that Don Mcgahn cooperated extensively with the Mueller investigation up to an including giving many, many hours of interviews. Let’s pause on that for a moment. If you’ve been the White House Counsel in a similar circumstance, would you have done this same?
Bob Bauer:
You raise a very interesting question and I’ll have to say, it depends on what the facts were. Let’s assume, for example, that I cooperate because I have to cooperate. There’s no way in the world the White House Counsel can’t cooperate unless the White House Counsel has individual legal liability, in which case, A, he or she might have to take the fifth or sort of attend to his or her own personal representation. Then, have to conclude perhaps that he or she can’t continue with the job.
Bob Bauer:
Let’s assume for a moment that none of that is true. The White House Counsel has an obligation to give testimony in those circumstances. I’m not surprised by that. Let’s assume too, for a moment, that Don Mcgahn believe that he could give this testimony and it might not reflect brilliantly well on the President, but it wouldn’t Doom him that he didn’t have any reason to believe he was sending the President, at least a good measure of the way toward prison or disgrace.
Bob Bauer:
In that case, you could see him fulfilling up official responsibility to testify and at the same time, believing he could continue in the job. If on the other hand, I were the White House Counsel and I thought my testimony would be damaging to the President, the testimony I had to give, I couldn’t function in the role any longer and I would have to leave.
Preet Bharara:
That’s interesting to me but you would still give the testimony?
Bob Bauer:
I would give the testimony, but I couldn’t continue.
Preet Bharara:
Right. There’s no circumstance in which you feel that it would be appropriate to resist the testimony?
Preet Bharara:
Lots of fights happen all the time and depending on the administration and the particular investigation and where it’s coming from and how damaging the material is, over executive privilege, deliberative privilege, and all sorts of other things, why not potentially use that as a route if you’re Don Mcgahn?
Bob Bauer:
That’s an important point. I don’t mean to skip over the need to make sure that the scope of the testimony is appropriate and that privilege is properly asserted or observed. I agree with you that has to happen but let’s assume that’s all squared away and there are legitimate areas of inquiry and a requirement for testimony that the White House Counsel by any stretch of the imagination has to give, even if it’s directed toward the President’s conduct. I think there’s no way around it.
Bob Bauer:
I think the White House Counsel has to testify. What I was driving at is that if at the end of the day, the President believes that the testimony you’re giving is extraordinarily damaging to him and you actually are of the same view, sort of difficult to see how you maintain the confidential professional relationship that’s necessary to serve the President.
Preet Bharara:
Here’s the second part of that story about Mcgahn giving a lot of testimony as it has been reported. It seems that he did it all without coordinating or communicating particularly closely with Donald Trump’s lawyers. There was this reporting somewhat breathlessly in the last few months where it is suggested that the President’s lawyers Giuliani and others don’t really know what Don Mcgahn told the special counsel.
Preet Bharara:
If you had been in the position of Don Mcgahn and given this testimony, what would have been your approach to sharing information about the questions and the answers with the lawyers who were closer to the president and serving a different function for the president?
Bob Bauer:
In the normal course, you’d expect that your lawyers would have the protected communications, appropriate protected communications, with counsel to the president. The worst case interpretation of what we read in the press, assuming it is correct, is that Don Mcgahn and his lawyers did not believe they could trust counsel to the president to have that information. They decided not to provide it or they provided a very edited version.
Bob Bauer:
That goes again to I think the dramatic professional hurdles facing a lawyer and Don Mcgahn’s position advising a president like Donald Trump.
Preet Bharara:
It’s kind of a tightrope.
Bob Bauer:
Yes, for him.
Preet Bharara:
What are the other explanations as to why he wouldn’t share? Could it be that he was just not asked?
Bob Bauer:
I find it really hard to believe because that would seem to be…
Preet Bharara:
You find incompetence on the part of lawyers who have been hired by President Trump in the past to be inconceivable?
Bob Bauer:
I’ll be charitable and say, if you have the word incompetence, I’ll say professional shortcomings but professional shortcomings in my mind are not equivalent to malpractice. A lawyer for the president who didn’t ask the lawyer to Don Mcgahn for an accounting of the scope of the testimony and the basic gist of the testimony would be, I think, going beyond simply the exhibiting personal or professional shortcomings.
Bob Bauer:
That would be a remarkable omission and that’s why I don’t know whether it happened or not.
Preet Bharara:
Right. Just to play that for a second, if you assume that the questions were asked and you assume that the reporting otherwise was corrected a lot of stuff wasn’t revealed. The lawyer for the president says, “Hey, Don, how long did you testified for?” In your 17 hours of testimony, would you tell them and when Don Mcgahn comes back and says, “I told them these three things and it takes a minute to describe.” Doesn’t the lawyer for the president then say, “I think you’re leaving some things out? You should tell us more.” I just don’t see how that works out.
Bob Bauer:
I agree. I mean, I think if it took three minutes for Don Mcgahn’s lawyer to explain 17 hours of testimony, my antennae would be up and I wonder what I wasn’t being told. You know again better than I do, that the details and the texture of the testimony is really all critical to understanding the import of that testimony for the president.
Preet Bharara:
I will stick on Don Mcgahn for a couple more minutes. This newspaper report in the New York Times that is another example of what you mentioned before about Donald Trump asking Mcgahn to see about firing Mueller. He was reported that the President told Don Mcgahn to tell the Justice Department to investigate and prosecute Hillary Clinton and Jim Comey. To me, that seems like a different level of outrageous bit of conduct on the part of the President, something we shouldn’t see in this country. I have a number of questions about that but let me just ask you the softball. What was your reaction to that?
Bob Bauer:
That Trump asked Mcgahn?
Preet Bharara:
Correct.
Bob Bauer:
I was not surprised, because after all, he’s not saying anything to Mcgahn that he hasn’t announced through Twitter a million times. He was angry with the attorney general for not investigating and doesn’t understand. He’s convinced the crimes were committed that had been left unexplored. That Mcgahn resisted, didn’t surprise me. Mcgahn apparently wrote a memo.
Preet Bharara:
Let’s talk about that memo.
Bob Bauer:
Yes.
Preet Bharara:
I keep doing this because you’re here.
Bob Bauer:
No, of course, of course.
Preet Bharara:
There’s very few people like you. This is very exciting for me and should be exciting for everyone. Let’s say it’s you, let’s say the President asked you to make that call about investigating political rivals and you, clearly knowing you, you would say, “No, that’s a terrible idea, Mr. President, I’m not going to do that and you shouldn’t do that. You should stop it immediately and it could result in your impeachment.” Would you then write a memo?
Bob Bauer:
The answer is probably not. I’m going to be very careful because second guessing people who deal with Donald Trump is so hazardous because I don’t know what they’re facing.
Preet Bharara:
It’s a different kind of a thing.
Bob Bauer:
Yes. It’s a different kind of thing but I would be probably very reluctant to leave anything in writing that memorializes that request was made in the first place.
Preet Bharara:
It depends on what your interests are. If your interest is in causing no further harm to a president who has already harmed himself by saying to another human being to do this thing that could be impeachable in some people’s minds, then yeah, you wouldn’t write the memo. If you also have an interest in self-preservation because you don’t know later what someone is going to say that you did and whether you were hospitable to the idea, then maybe in a CYA fashion, you would write the memo. I don’t know how you balance those things.
Bob Bauer:
That’s true. You might write it for reasons of self-preservation. You might write it also because it’s the baseball bat that you hit the president over the head with and you yell at him, he yells back at you, the two of you are in a disagreement.
Preet Bharara:
Right.
Bob Bauer:
You tell him, I’m so serious about this. I’m actually going to create a record.
Preet Bharara:
Right. You see defined risk. It’s a much bigger deal, I guess for the record of the historical record, the legal record, the congressional record, if it comes to it in the future, that your White House Counsel who you handpicked, wrote a memo saying you cannot do X or Y, and then the president doesn’t anyway, much more so than there having been a conversation that’s not recorded.
Bob Bauer:
Yes. I had in mind also, that faced with the fact that had been committed to writing, it may be that the President not satisfied with the verbal exchange would back off at that point. I mean, I think it’s a highly unlikely if Mcgahn had an erudite memorandum written on the reasons why presidents shouldn’t direct the political prosecution of their opponents. I think the likelihood that he expected the president to read, absorb it and ask informed questions about it are very low, is very low.
Preet Bharara:
Yes.
Bob Bauer:
It seems like it was more of a weapon in the battle to make sure that he was pushing back successfully. It may well also had the element of self-preservation that you suggest.
Preet Bharara:
If such a memo exists, do you think the public will ever see it?
Bob Bauer:
Yes. I do think one day the public may see it.
Preet Bharara:
When?
Bob Bauer:
I don’t know but I doubt seriously, it’ll stay inside the White House.
Preet Bharara:
Because of the leak machine?
Bob Bauer:
Because somebody will think it’s in their interest to take it out of the building.
Preet Bharara:
Yeah, there’s a lot of people who have their own interests at heart, which makes for a complicated situation when people also have, particularly the lawyers, have duties to their oath and as officers of the court.
Bob Bauer:
Yes.
Preet Bharara:
Let me ask this question. You’re a White House Counsel, we’ll stop talking about Trump for a moment and talk about Barack Obama. Was your job you think different because your boss, the president, was a lawyer himself?
Bob Bauer:
Yes.
Preet Bharara:
How so?
Bob Bauer:
It was different. It was…
Preet Bharara:
Was it more annoying because he knew the cases often himself and could second guess you and felt more comfortable doing so or was it a treat that someone who was erudite in the law was also your client, not your client, I guess but your boss?
Bob Bauer:
I’ll refrain from saying that any of his behavior toward me was annoying.
Preet Bharara:
I mean, that in a good nature way like.
Bob Bauer:
Yes.
Preet Bharara:
Smart clients can be annoying.
Bob Bauer:
Yes. Let’s put it this way, it generated extra pressure on the lawyers to be very clear and precise in their legal reasoning and to be prepared to explain their legal conclusions because he could call you on it. For example, we wrote memos for Barack Obama and I’m just stating this as a matter of fact, on issues like the standards of review that courts would have to pick and deciding a particular constitutional issue. We wrote it for someone who knew the difference between those standards of review, understood the difference between rational basis scrutiny and strict scrutiny.
Bob Bauer:
That is A, a pleasure because it means it’s not necessary to explain to him why that’s an important question to address. Obviously, it also means that you’re writing for a very sophisticated consumer of legal advice and you want to make sure you really … he’s not going to take your say so, you have to be convincing in your explanations. That’s, I think, an additional disciplining force for the lawyers and it’s altogether a good thing.
Preet Bharara:
Part of the job of any good lawyer is to say no?
Bob Bauer:
Yes.
Preet Bharara:
That goes back to the beginnings of legal tradition in every country. Did you ever have to tell Barack Obama, no, because you want to do something policy wise or legally and have to be persuasive on that and have an argument about it? Or was your advice always taken immediately?
Bob Bauer:
I will not say it was always taken immediately. Sometimes, the advice was taken under consideration and after I had justified it, after I’d answered questions about it. You raised an important point about the role of the White House Counsel, I made a point of not giving the president policy advice because that wasn’t in my view, our role, and there were two reasons for it.
Bob Bauer:
First of all, it’s not the area of expertise. I don’t think the president needed me to explain to him in the closing phases of a health care program or the health care bill lobbying, which provisions of the ACA needed to be tightened up on a particular question. I mean, that’s just not my expertise and why in the world would I give him that advice. Or for that matter, even advice about how best to sell it to the congress.
Bob Bauer:
We were not communication specialists. We weren’t policy specialist. We were lawyers. The second reason that’s really important is that if lawyers become involved in policy disputes in the West Wing, then there is a good chance that they will be considerably less effective in their role as lawyers because one camp will conclude that if Bob Bauer or some other White House Counsel is taking a position on policy, does that mean that the legal advice has been shaped to the White House Counsel’s policy preferences or is the White House Counsel consistently being an honest broker, giving the best possible judgment just about the law?
Bob Bauer:
I think staying on that right side of the line as an honest, legal adviser, an honest broker, legal adviser is absolutely critical to the performance of the White House Counsel. On the question of whether the president ever questioned my legal advice and without getting into specifics, I would say that he was a gracious but tough taskmaster and one had to make one’s case.
Preet Bharara:
He’s not in office anymore.
Bob Bauer:
Correct?
Preet Bharara:
You can dish a little bit, Bob?
Bob Bauer:
Not really.
Preet Bharara:
Okay. All right, that’s fine. It’s sort of interesting what you’re saying what the role is, because there are sort of general councils and special councils and chief councils and other environments, depending on the circumstances, who don’t see their job necessarily as being the honest broker about describing the legality and propriety of engaging in certain conduct, whether it’s the ACA or drone strikes, or the appointment of an acting attorney general. Rather, as counsel who provides the justification for the thing that the leader wants to do, whether it’s in a White House or anywhere else.
Bob Bauer:
The White House Counsel can certainly provide the best argument, but the White House Counsel has to be honest about how strong an argument it really is. I think the most important thing the White House Counsel has to avoid being, if you will, is an enabler by inflating the president’s hopes that say he has a lockdown legal argument for something that’s pretty shaky. I also want to be very clear about the difference between giving policy advice and bringing your knowledge of the political and legislative process into good actionable legal advice.
Bob Bauer:
For example, let’s assume you have three alternative courses of action. One of them is going to trigger major political sensitivities and could result in oversight hearings on the hill. When you tell the president that’s one of the downsides of that particular option, you’re clearly giving a kind of political advice. It’s practical. It means understand there’s an option here, but that option is going to have consequences and those consequences clearly implicate your legal affairs because after all, oversight hearings involve demands for documents and demands for sworn testimony, and a lawyer has to be sensitive to the possibility that a course of action could create those additional problems.
Bob Bauer:
I don’t think a lawyer has to be blind to the environment, in fact, can’t be blind to the environment in which he or she’s operating. At the end of the day, you want everybody in the room to walk out and say, “That White House Counsel gives really good legal advice and knows which lane he or she is operating in.”
Preet Bharara:
What you described is great, and I agree with it but that’s not in any statute or regulation either.
Bob Bauer:
No. That’s absolutely not.
Preet Bharara:
That’s based on common sense …
Bob Bauer:
Yes.
Preet Bharara:
… practical wisdom and tradition.
Bob Bauer:
Yes.
Preet Bharara:
All of which can be thrown by the wayside if the president so chooses, right?
Bob Bauer:
Absolutely.
Preet Bharara:
In other words, the next White House Counsel to come in, I don’t know anything about this gentleman and if he’s the permanent one could be employed to do all those things that you’re talking about. In other words, help the president achieve his agenda whether it’s well considered or not in a way that he can argue some legal basis for and give to lawyers who go on television to support. Do you think there should be some institutional way to cause the White House Counsel in the future to be constrained in the way you’ve described as opposed to being an enabler?
Bob Bauer:
Yes. By enabler, let me just explain what I mean by enabler which I obviously don’t mean as a compliment, if that’s somebody professional performance. I mean, somebody who disregards the institutional role and the need to be responsive of these institutional requirements and who sells the president the bill of goods on the strength of legal arguments, contrives arguments that are not reasonable, that if promoted by the president will cause major issues for the presidency and maybe even major issues for the president.
Bob Bauer:
I mean, enabler is essentially as close to being a bad lawyer as I know how to describe it. You wanted someone who’s independent minded, as well as, of course, responsive to the requirements that the president has for legal advice. An enabler is somebody who’s tossed all that tough mindedness and independent professionalism to the wind and has just become essentially a member of the inner political circle, and that’s not helpful in a lawyer in the White House.
Preet Bharara:
I take for granted, it’s difficult to think of a way to institutionalize that …
Bob Bauer:
Yes.
Preet Bharara:
… because the President could decide to bring in somebody out and here’s what I want. I was sick and tired of Don Mcgahn telling me no, of Don Mcgahn writing the CYA memos, of Don Mcgahn not getting what I want it to get done, done. Now, I’m going to bring someone in. A little bit some people argue is this is what’s happening at the top of the Justice Department. Is it your view that Matthew Whitaker was appropriately appointed acting attorney general?
Bob Bauer:
You mean as a prudential matter?
Preet Bharara:
Yeah.
Bob Bauer:
No, absolutely not.
Preet Bharara:
How about as a legal matter?
Bob Bauer:
I tend to think there are arguments that the administration can successfully muster that the appointment was a lawful one, at least for a limited term. I’m not going to pretend by the way I’ve mastered the subject matter. I’m ready to argue in front of the Court of the United States.
Preet Bharara:
It’s just a podcast, Bob.
Bob Bauer:
Right. I know, I know. That’s a good point.
Preet Bharara:
You don’t have to call …
Bob Bauer:
I don’t want to be obsessive compulsive at your expense here. What I have no doubt about is that, nothing could have serve the president less well than this appointment. This was a bad judgment across the board. It’s not going to get him what he wants, as far as I can tell. It has continued to deplete his political capital and credibility on these issues and any White House Counsel would have told him, I would think, “What in the world are you doing?”
Preet Bharara:
What do you think Whitaker is constrained by? If you take him and his word, when he was a talking head about how the Mueller investigation had gone far afield, and it could be the start of the resources and that’s interesting, clever way to cause it not to do the work that it’s doing, what do you think is the real constraint on Whittaker, bringing those things to come to pass in the coming weeks?
Bob Bauer:
First of all, I think if Whitaker has a sense of self-preservation, if he said all evolved in all in pressuring Mueller, I think he’s going to end up in front of the congress with sworn testimony and who knows what additional consequences. I think right off the bat, a message has been sent to Whitaker that he should be very careful and I suspect that will have some effect on him. I also, to be honest with you, if I had to put my money on who wins in a showdown between Matt Whitaker on the one hand and Rod Rosenstein and Bob Mueller on the other, I’m putting all of my money and I’ll double it on Rosenstein and Mueller.
Preet Bharara:
You were of the view that the President of the United states through lies … he’s told publicly not to law enforcement under penalty of perjury, but to the public, let’s say on Fox News are potentially a basis for impeachment. How is that?
Bob Bauer:
First of all, I think, we have … let me just clear the decks by saying this, we have gotten to the point where we think that the impeachment of a president for just outright demagoguery and reckless behavior is somehow unthinkable because it would bring us to the brink of constitutional crisis. The only basis for impeachment is if we catch the president in committing the most serious kind of felonies. I think that’s wrong. I don’t think that’s at all consistent with the constitutional record.
Bob Bauer:
If a president has a committed demagogue and the founders were explicitly concerned about demagogues, they were concerned about demagogues coming into possession of the presidency and in the pursuit of just rank self-interest is constantly deceiving the public, lying to the public, deliberately misrepresenting facts so that, that president introduces chaos into the public politic, defies any reasonable expectation that citizens have about how the president will relate to them, what the president will account to them for, I think that’s absolutely impeachable.
Bob Bauer:
An example, the House Judiciary Committee approved an article of impeachment of Richard Nixon for lying about whether or not he had directed an investigation of White House involvement in the Watergate burglary. He lied about that. He hadn’t done anything of the sort and he said he had. That was one of the approved articles.
Preet Bharara:
That was really a public statement.
Bob Bauer:
That was absolutely a public statement and there is no question. That’s precedent now, as Philip Bobbitt who wrote this excellent supplement to Charles Black’s famous handbook on Impeachment has said. When we look at the Law of Impeachment, it includes what past congresses have done. That’s precedent, that a president can be impeached for lies. That was one lie about one investigation which the president clearly have self-interest and it was impeachable.
Preet Bharara:
How many lies has Donald Trump told and how many material issues?
Bob Bauer:
I lost count. I recently wrote a piece in which I thought that the claims that he’s made about the electoral process in this country, it’s corruption and that the voting systems are rigged and that fraud has been committed and whatever, completely inconsistent with his oath of office. It’s a violation of voting rights. It’s an attempt to discourage people from competence in the electoral process. It may have the effect of discouraging people from voting and I think that behavior in the aggregate is impeachable.
Bob Bauer:
I’m not unrealistic, that will not be the sole basis alone for an impeachment inquiry into Donald Trump’s conduct. I see no reason why it wouldn’t be included or considered.
Preet Bharara:
Do you think impeachment is a foregone conclusion with a Democratic Congress or do you think they will be restrained because they think it’s a political non-winner instead of focusing on kitchen table issues?
Bob Bauer:
Somewhere in between, my confidence in the likely next Speaker of the House, Nancy Pelosi and the leadership team is, that on the one hand, they recognize that the public wants less politics and more action on the issues that they care about. They’re going to worry about a congress that is paralyzed by a preoccupation with impeachment.
Bob Bauer:
I think they’re sensitive to that and they will be sensitive to that. On the other hand, I also think they know that they have a constitutional responsibility of evidence surfaces of impeachable conduct to take it seriously and I think they should, I hope they do.
Preet Bharara:
It’ll be an interesting year, no matter what.
Bob Bauer:
It’s always an interesting.
Preet Bharara:
You’ve spent a lot of time in your law practice on the issue of elections and voting, and how voting can be fair. As I mentioned in the intro, you served as co-chair of the Presidential Commission on Election Administration, why is it so hard for America in 2018 to get elections right? Every time we have an election day, including this past one in the midterms, you see these crazy scenes of machines not working or lines being too long or people who are arguing that their votes are being suppressed, how come we can’t get it right?
Bob Bauer:
Insufficient national commitment to building a durable, modernized electoral infrastructure. We simply don’t have that commitment. As soon as elections were over and we have results that people by and large live with and they do by and large live with it, right? Then, all of a sudden, we’re off to other things until the next elections are held. We found in the presidential commission when we went around the country that in state legislatures and even other governing jurisdictions below the state level, the allocation of resources for elections for the actual conduct of elections is way down the list of priorities. Any number of other things that elected officials believe the public needs come first.
Bob Bauer:
As you know, we have aging equipment well, well past its buy sell date and we are courting a disaster because we’re not making an investment at the Federal level or around the country and superior equipment. We’re not making an investment in the recruitment and training of poll workers. Frankly, we’re not making an investment in the establishment of viable polling locations. I mean, I could go down a whole list of problems that we have because we just won’t make the resource commitment. We’re not taking it seriously.
Preet Bharara:
Why aren’t we? You hear politicians, at least in their rhetoric, yell about it, scream about it, tweet about it, write about it at the time of the election. They say every vote must count. Maybe it’s only in service of their particular need at that particular time, if they think they’re on the other side of these problems. They certainly talk a lot about it, why do you think they lack the will to make it actually help?
Bob Bauer:
They lack the will I think because there’s insufficient public pressure on them to be honest. If your trash isn’t being picked up, it’s not being picked up 52 months a year. Election takes place once every two years and election in place every four years. Then eventually, somebody is declared a winner, takes the oath of office and begins to vote. It’s behind you. It’s just too easy for politicians to blow past that and that’s, in fact, what’s happened.
Bob Bauer:
We just don’t make the commitment. The public has to demand more of this. To some extent, by the way, there’s been some expression of public will that’s had an effect. For example, the significant expansion of early voting around the country has taken place both in Democratic and Republican locations because voters have thought, “Why is it that I do so many things online with great convenience and voting isn’t one of them.” There’s been some attempt to answer that need.
Preet Bharara:
Can you work on New York because we don’t have it in New York? It makes no sense to me.
Bob Bauer:
Yeah. In my understanding, it’s the New York City, I mean, I’m not an expert, I don’t vote in New York but I understand that in New York City the electoral machinery leaves a good bit to be desired. That’s a problem we see around the country and the evidence simply is lacking.
Preet Bharara:
If you could wave a magic wand, this is my magic wand question.
Bob Bauer:
Okay.
Preet Bharara:
For you, Bob Bauer, and you could only enact one reform, whether it cost money or doesn’t cost money, that way increase the franchise or increase voter participation or fairness, what would it be?
Bob Bauer:
Can I make it two? Can I have a bonus?
Preet Bharara:
Okay, you can have two.
Bob Bauer:
Okay. Voting on a national holiday, I think we shouldn’t require people even though we have early voting and that’s helped a great deal. It is just manifestly unfair to try to cram all that voting into a 12-hour day, the different people with different schedules and demands in their lives have to navigate differently and not always fairly. The second is that, we need to spend a huge amount of money on replacing voting machinery and going to a new generation of voting technology.
Preet Bharara:
Is there a perfect voting machine? Is there one that everyone should use?
Bob Bauer:
No, no, no. There’s none. I don’t think there’s a perfect voting machine.
Preet Bharara:
Is there a best one that every state should aspire to have?
Bob Bauer:
I certainly in the school, and I think that’s generally the view that we need a voting machine that has a verified paper trail attached to it. There’s got to be some paper record that you can use to audit the results and that’s an absolute requirement. By the way, this means seem a little quirky, but I’ll bring it up. One of the things that I noticed that is problematic for the conduct of elections and for our confidence in elections, is the insistence on having immediate results. I don’t see any reason why we need immediate results.
Bob Bauer:
Frankly, I’d be just as happy if everybody in the United States until we get the technological problems worked out and voted on paper and we gave election officials two weeks to tally and announce what the outcome was. It wouldn’t kill us and it would mean people.
Preet Bharara:
It would kill some people.
Bob Bauer:
I know somebody would be very unhappy about it.
Preet Bharara:
Maybe that’s Darwinism. Maybe that’s okay.
Bob Bauer:
Maybe that’s so. The problem, of course, the problem, of course, is that, right now, look at what happened the last time around. There were statements made about the outcome of the election that we’re way ahead of the counting of results on the West Coast. There were races that were called for people where significant amounts of votes still had to be counted. Once they were counted, the outcome of the election originally announced was reversed.
Bob Bauer:
This fosters a belief that something funny is going on. It leads to charges of vote fraud. It’s completely unnecessary and I think we ought to have more patience.
Preet Bharara:
The hard part, I think also is with respect to people having faith in the electoral process, particularly in close elections when it’s a landslide, people by the results. I’m a reasonably educated person and I talk to more educated and smart people, it becomes hard to discern who has the right side of the argument in some of the local races, whether it’s a governor’s race or a senate race, whether it’s Alabama or Florida.
Preet Bharara:
I have my view on who is making the correct argument who is not, but it seems very easy for one candidate and their allies to make a claim that they’re being treated unfairly because votes are materializing after the date or without evidence just being able to claim that non-residents voted, how is the public supposed to make a determination when they read the newspaper and watch mainstream television as to what the truth is?
Bob Bauer:
Very difficult but there is one thing we’re doing that makes matters vastly worse, which is leaving partisan election officials around the country in-charge of the election administrative process is outrageous. These positions should be completely professionalized and independent. They should be removed from any potential political influence. If you had serious professionals who were speaking to the integrity of the electoral process and reassuring the public about how elections function, there’d be less space for these charges and countercharges that have this eroding effect on public confidence. That needs to be changed.
Bob Bauer:
By the way, I just have to say, the recent years of campaigning for voter restrictive statutes like voter IDs and more limited early voting and so forth, with all of the inflated, not only inflated but frankly groundless claims of voting fraud, which has now reached the point where the President of the United States is joining in is a disastrous development for public confidence in the electoral process. All the more reasons that everywhere else we can including in promoting professionalized election administration, we have to do what we can to shore up that confidence because there’s a huge political movement to undermine people’s confidence in the right to vote.
Preet Bharara:
Yeah. Two reactions to that. The first thing you mentioned, with respect to election officials also running for offices themselves. It’s not a nonpartisan, independent, disinterested group who’s doing it. The most outrageous example of that, would you say was in Georgia?
Bob Bauer:
Yes, that was an outrageous example and by the way ….
Preet Bharara:
Just tell what the example is.
Bob Bauer:
The example was that the same person who was superintending the electoral process was a candidate for governor, and was making statements and acting in ways that just undermined any reasonable confidence in his fairness. As you know, ultimately, that became an issue when the concession speech of the defeated Democratic candidate who actually didn’t concede but said this election has been marred by all sorts of irregularities in the way the electoral process was run and in the way her opponent handled those responsibilities while also being a candidate.
Bob Bauer:
Even in cases where the partisan elected official is not a candidate in that same election, he or she is also potentially subject to enormous pressures from the political party they’re affiliated with. That can disturb public confidence. I mean, imagine, if you recall Katherine Harris in Florida during the Gore week …
Preet Bharara:
Who doesn’t?
Bob Bauer:
Right, exactly. She wasn’t a candidate but the question was, to what extent was she really addressing the public interest in a fair recount or bowing to the demands for her own party to tilt the election in the favor of then Governor George Bush. It’s just inconceivable that we keep the state of affairs going.
Preet Bharara:
We just had an election. The race for the presidency in 2020 is already underway. I think there are, by my count, 94 Democrats running for president, maybe 194 by the time if we get to it.
Bob Bauer:
Speaking time of the show …
Preet Bharara:
By the time the show is over. Speaking about elections for a moment that we’re talking about, what should we be worried about and looking out for in terms of making sure that everyone gets to vote properly in 2020? Some of these reforms are great that you’ve referred to, and that your organization proposed. The likelihood is that, that can’t be enacted and wouldn’t be enacted in the next couple of years. What can people do to assure themselves that things will go well state by state in two years?
Bob Bauer:
First of all, just to the credit of President Obama’s commission, some of the reforms that we advocated actually went into an implementation phase once the report had been filed with the president. There have been efforts on the part of localities to adopt some of these recommendations. For example, the shorten lines and improve poll worker training and the like. We’ve seen some movement also the expansions I mentioned earlier of online voter registration.
Bob Bauer:
As for 2020, the public pressure on localities to account for the way they’re preparing for the election, I think, is exceptionally important. I will say this that should be somewhat reassuring and reassures me. When we traveled around the country for a year in preparation for the report to President Obama, as part of that voting commission, the overwhelming impression we had was that, and yes, you’re going to have variations in quality of performance. Election officials around the country really want to get it right. They really do because they’re in communities where their reputations are at stake.
Bob Bauer:
If something goes wrong on Election Day, those reputations suffer a serious blow. They’re frequently blamed very much for matters over which they have limited control including, for example, the hand they’re dealt and the quality of the equipment they’re given. I think that the civil rights organizations in the United States have been so instrumental on voting rights issues, the candidates, the parties, and particularly, I hope, with Donald Trump I don’t have much hope with the Republican Party’s contribution to the effort.
Bob Bauer:
They have perfected ways over the last several cycles to cooperate with election officials, to enhance the quality of administration and to communicate, I think, some level of competence at the state and local level that elections are being properly prepared for.
Bob Bauer:
Is this a durable secure arrangement? No, and partly because the President of the United States has insisted beginning in 2016, when he said if he lost, he almost certainly lost because of fraud, who claims that five million people voted illegally, and every single last one of them in 2016, voted illegally for Hillary Clinton, which is a quite remarkable percentage. All of that is creating pressure on public confidence. We need public officials, including election officials, some of whom have been quite vocal on this point to send a clear cut message that just isn’t true and to help counterbalance those claims.
Preet Bharara:
Bob Bauer, thanks for being with us.
Bob Bauer:
It’s a pleasure. Thank you.
