Preet Bharara:

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

Mark Leibovich:

America has to get their head around the idea that one of our two major parties is following Donald Trump into and they will support him no matter what. And that is who, at least a big portion, of us are.

Preet Bharara:

That’s Mark Leibovich, a long-time political analyst, journalist, and author. He’s currently a staff writer at The Atlantic and a political analyst for NBC and MSNBC. Before joining The Atlantic, he served 16 years as the Chief National Correspondent for the New York Times Magazine. Mark is the author of five excellent books, including two number 1 New York Times Bestsellers, This Town and Thank You For Your Servitude. Leibovich joined me on stage at SXSW in Austin this past weekend for a live taping of this podcast. We discussed the state of play in the Biden-Trump presidential rematch from Super Tuesday results to recent polling to the State of the Union address. That’s coming up. Stay tuned.

Since we aired our Stay Tuned mini-series about AI and the law last week, many of you have written in to share your thoughts, hopes, and worries. That’s why we made this series, to try to cut to the heart of the emerging legal consequences of artificial intelligence and provide a framework for how to think about it. The second episode of the series is out now. Nita Farahany and I discuss the hypothetical case of a hotly contested senate race in which one candidate is accused of using deep fakes to hurt his opponent. Listen to AI on Trial in the Stay Tuned feed.

Preet Bharara:

Q&A

Now, let’s get to your questions. This question comes in an email from Arleen who asks, “What are your thoughts on special counsel Robert Hur’s testimony before the House Judiciary Committee?” Well, thanks for your question, Arleen. I have a lot of thoughts about that. Too many to answer in this short segment here. I expect that Joyce Vance and I will be discussing that Hur testimony at some length on the CAFE Insider podcast next week.

But for reference for folks who were away from television or news all day yesterday, this was a little bit of a spectacle that was to be expected and anticipated. Whereby Robert Hur’s special counsel, former US Attorney appointed by Trump for the District of Maryland headquartered in Baltimore, was asked to come testify which he agreed to do about the report he prepared and which Merrick Garland released. Setting forth all the reasons why Joe Biden was not appropriately chargeable and wouldn’t be charged with any conduct relating to his handling of sensitive or classified documents after his vice presidency.

There’s been a lot of talk about it. We have talked about it on the podcast. We have talked about it on The Insider podcast. People have talked about it on television. So I have a few takeaways, but then I’ll have more, I’m sure, next week. Number one, Robert Hur got it from both sides, Republicans and Democrats, as was to be expected if you’ve been following things. An NBC News online article sums it up well in a headline, “Why Hur’s testimony isn’t leaving either party happy.” Because on the one hand, Democrats are unhappy because of what they view, and I agree, is superfluous language, prejudicial language, language that was not necessary to the report, talking about Biden being a feeble-minded elderly man who would be sympathized with by any jury if any case were brought.

On the other hand, Republicans were annoyed that charges were not brought at all. And they’re making the argument, which I don’t think has merit for a variety of reasons, including a substantial portion of the Hur Report itself that sets out the differences between Donald Trump’s conduct for which he was charged in the Mar-a-Lago case in Florida versus the Biden situation for which Robert Hur, not withstanding his superfluous and prejudicial comments, makes clear was inappropriate to be charged. So nobody’s happy and the proceeding was, I think, a bit of a spectacle and a bit of politics as usual.

One important thing happened in conjunction with the hearing. There’s now a publicly released transcript of special counsel Robert Hur’s interview of Joe Biden which he undertook voluntarily on October 8th and 9th, the two days following the attack on Israel by Hamas. And so, people can read the transcript. It goes on to many pages and make their own assessment about whether or not Joe Biden answered questions forthrightly, whether or not his testimony was believable or credible, and what the quality of his memory might have been.

Now, obviously, with respect to any report that makes reference to an interview of Joe Biden or anyone else, by its nature, it has to be selective in what it quotes. But I will tell you, there is something in the transcript that some people are focusing on, and I think understandably so, notwithstanding the occasions on which Biden concededly did not have a perfect razor sharp memory. There are occasions and during the interview as a whole, Biden seems to have a clear understanding and a good grasp of most issues that he was asked about in a fairly lengthy interview.

And at one point, Joe Biden was apparently providing a lengthy description of the layout of his house in Delaware. And Mr. Hur himself, Robert Hur himself, observed that Biden appeared to have a, “photographic understanding and recall of the house”. Now, that’s not the end of the world. That’s not dispositive necessarily of anything. But I think as some Democrats irritatedly pointed out, that quote about what sounds like praise for a photographic memory, at least with respect to some of the things he was talking about, was not included in the report and the other thing was.

So you can make up your own mind about whether there was cherry-picking or not but I think it’s a fairly glaring example. Because easily you could see how the special counsel could have put in the report something very simple. Like, “On some occasions, he didn’t remember certain things and on other occasions he seemed to have a photographic recall of things that were relevant to the questions that I was asking.” It would’ve been easy to do. It would’ve been simple to do. It seems the decision not to do, that was a clear choice.

Next point I’d make is overall, there’s a conundrum here. In the ordinary case in US Attorney’s offices around the country, there are closing memos that are often done in connection with a decision to decline to prosecute someone who has been investigated for a period of time. And everyone in the US Attorney’s office knows that those declination memos do not get made public. And sometimes, they’re very frank and they have information in them that were they to become public would be very prejudicial to the targets who are not being charged.

And to make those public would actually be a violation of policy and an infringement of the rights of the target and work a fundamental unfairness. That’s why we don’t do it. We didn’t do it in my office when we’re declining a case. And most people don’t do it because they know it’s a violation of the principles and policies that are near and dear to the heart of the Justice Department. So this is the kind of thing that you don’t do.

On the other hand, in connection with a special counsel appointment in a fraud case such as one involving a sitting President of the United States and former Vice President of the United States, as Robert Hur tried to rely upon again and again, special counsel is required to write a version of the closing memo that I described to you that happens in US Attorney’s offices all the time. And it’s supposed to be a confidential report in which you have to provide the reasons why you’re declining prosecution.

But then, the rules also provide that the Attorney General, in this case Merrick Garland, is within his rights to make public a full version or a redacted version of that report. And in this case in particular, in the real world in which we’re operating, Merrick Garland had made clear by his statements and by his track record that he was going to make public as much as possible, which probably meant almost all of Robert Hur’s report, whatever would be contained in it.

And so, Hur kept saying, “I wasn’t trying to prejudice anyone. I was required to write a confidential report.” He kept saying, “I was required to write a confidential report and that’s what I did. I didn’t make anything public essentially.” The problem there is he’s a person with a brain and he understood what Merrick Garland was going to do. So in the writing of his report, he full well understood that everything that he put in there, in all likelihood, would be made public. Including prejudicial remarks and statements he made about Biden and his memory that were divorced from the particular issues of memory relating to the questions in the case and the facts of the case and the documents in the case. So Hur, I thought, was unfairly hiding behind the rule. And this was crystallized, I think, best at the hearing by the Q&A session conducted by representative and probably soon to be Senator Adam Schiff who cut through it all by saying, on this point to Mr. Hur, “You were not born yesterday.”

Senator Adam Schiff:

You understood exactly what you were doing. It was a choice. You certainly didn’t have to include that language. You could have said, “Vis-a-vis the documents that were found at the university, the President did not recall.” There is nothing more common. You know this, I know this. There is nothing more common with a witness of any age when asked about events that are years old to say, “I do not recall.” Indeed, they’re instructed by their attorney to do that if they have any question about it. You understood that, you made a choice that was a political choice. It was the wrong choice. Mr. Chairman, I yield back.

Preet Bharara:

The final point I would make is this back and forth and debate about whether or not the report exonerated Joe Biden. This is a complicated point rhetorically used by both sides. And I think in a way, that doesn’t understand exactly what exoneration means and what the nature of certain reports are and what the nature of even a trial conviction really is.

And there’s one representative on the democratic side who kept trying to get Robert Hur to admit and concede that the report was an exoneration. Robert Hur said, I think in fairness to him quite correctly, that nothing in the report said exoneration. That, that term and that conclusion was not in the report. Which Republicans then seized upon to say, “Look, he wasn’t exonerated. The only reason he wasn’t charged is because he’s a feeble old man with a bad memory.” Now, both sides are totally incorrect on that.

So part of the question is what does it mean to be exonerated? Exoneration, as far as I know, is not really defined legal term. And even when someone goes to trial and charged with crimes and is acquitted of all counts in a court, as far as I’m concerned, that is not an exoneration in the way that some people are trying to make it out to be. It’s simply a finding that the prosecution did not have sufficient evidence to prove beyond a reasonable doubt that the person violated those particular statutes charged in the indictment.

Exoneration on the other hand, based on common understanding, if you’re being reasonable and speaking in good faith about it, is a process by which it is proven that you did not commit some offense. That you did not violate some statute. That happens, for example, most commonly, and there’s one case that I write about in my book as you may recall if you’ve read it, when someone who has been incarcerated is exonerated through a process of re-investigating the case and finding out, for example, that someone else committed the crime. That’s an exoneration. That’s a process by which someone is determined to have not committed the crime as opposed to, and I think there’s an important distinction here, as opposed to insufficient evidence to prove that they did commit the crime.

Look as a colloquial matter, it’s not way off base to say Biden was exonerated. I may have even used that term myself. The case is over and he’s not going to be charged because there’s insufficient evidence. But as a technical legal matter, he wasn’t really exonerated in the same way even an acquitted defendant isn’t “exonerated”. And it was a mistake to go toe to toe with Hur on that point. It’s ironic that there’s this debate about whether or not this report exonerates Joe Biden or not.

Former President Trump, on many occasions, said that everything that was ever written about him, whether it implicated him or not, was some form of exoneration. He said that about the Mueller report, he said that about the impeachment votes. It’s language, interestingly, that the Republicans have used I think also incorrectly. So I think there are a lot more interesting things to say about the hearing and there are a lot more bits of confusing aspects to the debate on each side of this. Those are my quick takeaways. And as I said, I think Joyce and I will spend some more time unpacking what happened and trying to explain it on the CAFE Insider podcast next week.

This question comes an email from Pete who asks, “Does a stay mean no investigation can continue or just the court portion?” So Pete, I presume you’re talking about the proceedings in the District Court of Columbia where we have a pending trial relating to Donald Trump’s actions and activities relating to the January 6th insurrection. As you know, there’s been an appeal on a ruling from the district court finding that Trump’s claim of absolute immunity is without merit. That has gone to the DC Circuit Court of Appeals. It is now pending in front of the Supreme Court with an oral argument date set for April 25th. And so, during the pendency of the appeals proceedings, the district court case, the trial court case, is stayed. And it’s a great question.

What it basically means is effectively there are no court proceedings, there are no motions deadlines, there are no court decisions that can be made during the period of time that the case has stayed while the Supreme Court decides the matter. It does not stop the parties from continuing to prepare their case, develop the facts in their case. If there’s further investigation to be done, they can do that. That’s true for the prosecution and that’s true for the defense. Now, you may recall in recent times that even during the stay, the prosecutors in the case, Jack Smith’s team, want to still advance the ball as much as legally possible. So that the case would be on track once they got it back, if they got it back in the district court. They did a couple of different things. They continued to produce discovery to the defendant, Donald Trump and his team. So they could prepare for a trial ultimately. And they also filed one or more motions in the court not asking for it to be decided, not asking for there to be a deadline on when the adversaries had to respond.

So they just wanted to get them on file despite the stay. And the court ruled with respect to the motions that they should stop filing motions, because that was a violation potentially of the stay. But on the other hand, she did not find the provision of discovery, which by the way, is something that’s helpful to the defense and doesn’t require any reciprocal obligation, that the provision of discovery during the pendency of the stay was not a violation.

With respect to whether or not the prosecution can continue to investigate, presumably with respect to the counts that they have brought, that the grand jury has accepted and voted on and approved, their investigation is done or largely done. As the criminal lawyers in the audience may know, you’re not allowed to use the grand jury after you filed an indictment to investigate the counts that have already been approved.

You can use the grand jury to investigate further crimes, additional crimes, or crimes committed by additional defendants. So if that’s so, they can continue to use the grand jury whether or not there’s a stay in place. Despite what I’ve said, you can expect that when the Supreme Court issues its opinion… And I hope and believe it’ll be the same as the DC Circuit Court’s opinion. Rejecting the claim of absolute immunity and sending the case back to the DC District Court for trial, that the Trump lawyers will say, “Well, during the pendency of the stay, we couldn’t really accomplish anything. We couldn’t get anything done. We couldn’t prepare our case. We couldn’t develop the facts,” even though some of that is not true. And they will seek an additional delay even after the Supreme Court decides. But great question. Thank you.

This question or these multiple questions come in a tweet from Myra who asks, “If Judge Cannon rules to dismiss charges, can Smith appeal? At that point, can he also request a recusal on grounds of competence, lack of partiality, or both? If Trump were to lose the election, what would be the likely timing for the federal cases?” So those are great questions, Myra.

With respect to the first question, you’re obviously referring to Judge Eileen Cannon in the federal court in Florida. She’s the judge that’s presiding over the documents case with respect to Donald Trump. So we are waiting to see if she’ll dismiss the charges. Jack Smith and his team filed responses to the application by the Trump team to dismiss the charges on various counts. They’re not particularly meritorious. I don’t think they’re very strong. There’s some debate about whether Judge Cannon has a finger on the scale in favor of Donald Trump so we’ll see.

The good news is if you believe that Donald Trump needs to be held accountable, that if she does dismiss the charges, Jack Smith and his team can appeal that decision. Now, as you may know in a different circumstance, if there’s an acquittal in a case, prosecution cannot appeal the acquittal by a jury because that would violate double jeopardy. But a dismissal of charges or of any counts by a judge is appealable to the relevant circuit court. And here, it’s the 11th Circuit Court of Appeals as I said.

By the way, something like this happened very recently in federal court out of my old office, the Southern District of New York. SDNY some time ago indicted then Lieutenant Governor Brian Benjamin on federal funds. Bribery charges on his services, wire fraud, and some other conspiracy counts. The District Court Judge who sits in the same position as Judge Eileen Cannon in the Florida case, the District Court Judge in the Southern District of New York dismissed three of the counts.

SDNY, my old office, appealed in this case to the 2nd Circuit Court of Appeals and made an argument that those counts were dismissed incorrectly and inappropriately. The Circuit Court agreed with my old office and has reinstated those counts and sent the case back to the district court for trial. That’s exactly what would happen if Judge Eileen Cannon dismissed one or more counts in the Florida case.

Your second question is interesting which was, “At that point, can he also request Cannon’s recusal on grounds of competence, lack of partiality, or both?” So generally speaking, you can make a recusal motion, an application, at any time. Some people suggested that they might’ve done so already or they could have done so after certain other rulings have been made in this case. I think there’s a decent argument in favor strategically of asking for recusal on top of asking for a dismissal to be reversed given the state of the law and given the lack of merit of those motions.

It’s always fraught. It’s generally not done on the basis of competence but done on the basis of some perceived bias on the part of that judge given particular rulings that have been made. And I think they would have a reasonable basis to make that argument. And certainly, they would, whether they make the argument or not, would not want to be in front of a judge who has ruled the way she has, up to and including in your hypothetical a dismissal of multiple counts in the indictment.

Then finally, you ask, “If Trump loses the election, what would be the likely timing for the federal cases?” Well, that’s unclear. However, once he’s no longer running for office, once he has lost the election, once we’re into 2025, there’s no particular rush to have the trial. The fear and concern that he can make the cases go away, either by ordering the attorney general to drop them or by self pardoning or by any other means evaporates. So those trials, I would expect, if they haven’t happened and concluded by the election and Trump loses would take place some time in 2025. I’ll be right back with my conversation with Mark Leibovich.

THE INTERVIEW

In times of political uncertainty, I often turn to Mark Leibovich. He’s a political analyst and staff writer at The Atlantic.

So here we are. There’s some big picture points I want to discuss with you and get your views on. There’s some things that happened this week. But the overall landscape is that the election and the rematch that nobody wanted is the one we’re getting. And of course, people have pointed out, even though people on television and in print keeps saying, “Nobody wanted this, nobody wanted this, nobody wanted this.” Of course, we did because we got to this point in this rematch by a democratic process. Which by definition means, in some way we wanted it. Do you have a comment on that?

Mark Leibovich:

Yeah. It’s true. I mean, we’re here because this is what people wanted. Obviously, it’s a flawed democratic process. It’s a very limited democratic process. Because if you look at the numbers of people who vote in these primaries, it’s a tiny fraction not only of the overall electorate but also of the national electorate.

And as we’ve seen, voters in states like Iowa and New Hampshire have disproportionate influence and here we are. Having said that, I think it’s possible to, by democratic process, anoint the two candidates that the trope says nobody wanted and still actually not really wanted. Because I don’t know, I think democracy is broken for a lot of ways and a lot of ways that people have pointed out. But in some ways, we get the democracy we want and hopefully, we’ll save it.

Preet Bharara:

So a couple of things happened this week and then we’ll talk about the race more broadly. I’ll go in reverse chronological order. State of the Union was a couple of days ago. Lots of Democrats are saying that Joe Biden gave the performance of a lifetime and he has quelled concerns about his age and about his vigor. Do you agree?

Mark Leibovich:

I think he gave a really good performance. I watched it. I was pleasantly surprised. I was relieved as someone who wanted him to do well. I don’t think he quelled the concerns about his age at all. I think-

Preet Bharara:

Why not, if he gave a good speech?

Mark Leibovich:

Because it’s one good speech. And in the shelf life of our politics, it won’t last. Immediately, Republicans… I mean, in that incoherent way are saying that, “Oh, he was angry. He was unhinged.” Of course, it’s hard when you have no energy and are-

Preet Bharara:

Is it low energy or high energy? Which one is it?

Mark Leibovich:

Yeah. It’s like, “Well, pick one,” right? But no, I mean, I also think as a lot of… Well, this is an obvious point but I drove in yesterday from Houston to here. Listen to talk radio which I don’t usually do except when I’m in rental cars going long stretches. And as you will be undoubtedly not surprised to hear, the talk radio response, especially the conservative talk radio, which is really all you get here and in most places when you’re driving long distances, even in blue states, was incredibly negative on this. And these are the information filters that people exist in.

Preet Bharara:

Negative on what basis?

Mark Leibovich:

They thought he was angry. They thought he told lies. They thought he was divisive, which I love. They thought, “He did not bring us together-”

Preet Bharara:

Unlike the other guy.

Mark Leibovich:

“I was really hoping that the president would bring us together last night. And boy, am I disappointed.” I mean, it’s comical but-

Preet Bharara:

It’s like when Trump supporters get upset when they claim that Joe Biden has trampled on norms.

Mark Leibovich:

Yes, exactly. Yeah. Speaking of which actually, and I came from Houston yesterday where I was watching Lara Trump be anointed as the vice chair of the Republican-

Preet Bharara:

Oh yeah, we’re going to get to that.

Mark Leibovich:

Okay. I don’t want to violate chronology here.

Preet Bharara:

Yeah.

Mark Leibovich:

Although, by the way, if you’re going to ask me about Katie Britt-

Preet Bharara:

We can’t go back in time. Yeah.

Mark Leibovich:

The Katie Britt thing happened after the State of the Union so reverse chronology would… Anyway, sorry.

Preet Bharara:

You’re being very difficult.

Mark Leibovich:

Yeah.

Preet Bharara:

Well, I was going to ask you, so if you listen to talk radio and if they were critical and negative about Joe Biden, what was the expressed sentiment about the rebuttal from Senator Katie Britt?

Mark Leibovich:

Eerie silence on the Katie Britt rebuttal, at least on talk radio. I am amazed at how she continues to dominate social media, now 36 hours after her speech, which was bizarre. In many ways, it was unprecedented and it’s been digested and continues to be digested in little clips. And I think it probably was a disaster but who knows?

Preet Bharara:

Was it as bad as people are saying?

Mark Leibovich:

I actually think it was. I didn’t see it live. I then started hearing about it. And then, I was overwhelmed by the weirdness of it. I don’t understand what the idea was. I mean, it takes-

Preet Bharara:

Have you ever thought to yourself… I mean, and this is not a comprehensive statement. But the number of times that a rebuttal, both from the Democratic side and the Republican side, has sucked is a high number.

Mark Leibovich:

It is.

Preet Bharara:

Should anybody… There’s a thing that happens in courtroom sometimes it’s unusual, but sometimes the witness gets up and the witness is not that bad for you. And it’s your opportunity to get up and do the cross examination. You say, “Your Honor, we waive the cross.”

Mark Leibovich:

Right.

Preet Bharara:

Should they waive rebuttal sometimes?

Mark Leibovich:

I think so. I mean, all you can basically… The best you can ask for is innocuousness and not to be noticed. I mean, can anyone remember… Can you remember a good rebuttal? What was a-

Preet Bharara:

I don’t… Anybody?

Mark Leibovich:

No. I mean, the ones you remember have… I mean, sometimes it’s unfair. I mean, Marco Rubio was mocked for having to drink water a couple times so-

Preet Bharara:

Yeah. We have water for you.

Mark Leibovich:

We have water for… Yeah, too. Actually, there’s warm water and cold water. I’m letting you guys inside the kimono here. And then, there was the Bobby Jindal one which was a little weird but it wasn’t that weird. I mean, it was coherent once he got started and then there was this one. But I mean, otherwise, I don’t remember who did last year’s rebuttal.

Preet Bharara:

A few minutes into the Katie Britt rebuttal, I tweeted, “Better or worse than Bobby Jindal.” And then, as the minutes went on, it was unanimous-

Mark Leibovich:

Really?

Preet Bharara:

Worse.

Mark Leibovich:

Wow.

Preet Bharara:

Yeah. So did you think… I mean, so we can spend some time piling on which we won’t. But do you think that performance means that she’s no longer on the short list to be Donald Trump’s vice president?

Mark Leibovich:

I don’t think it helped. I do think that there is a school of thought that like, “Look, this didn’t matter. She had a bad night. She’s new.” But Donald Trump does not exist in a world of fairness. I mean, he tends to just latch onto caricature-

Preet Bharara:

it’s an understatement.

Mark Leibovich:

Whether it’s fair or not. And I don’t think he will… I mean, if he was ever considering her, I don’t think this will move the needle in her direction.

Preet Bharara:

So I have an observation. And maybe it’s an observation given what I do and what I have done. So I don’t believe, and I may have missed it, but I don’t believe that Joe Biden one time… Even though he talked about Trump, not by name but as his predecessor, I don’t believe he one time made reference to the fact that Donald Trump is under indictment in multiple places.

And I understand the reason for that and I like to talk about it. But it’s stunning because you can imagine in any other reasonable political universe, if your opponent has been charged with serious crimes in multiple places, somebody might’ve chosen to add a line to the State of the Union. Something like, “And how can you expect my predecessor to faithfully execute the laws of the land when he, himself, is accused of violating the law in four separate jurisdictions, state and federal? How can we have such a person returned to the White House?” Didn’t say that. Does that tell you something about where we are? Because… I’m sorry. Just last point on that is because people on the left have been criticizing Republicans in the primary for not beating Donald Trump up with respect to the indictments. Well, Joe Biden had a huge bully pulpit from which to do it and he didn’t do it either.

Mark Leibovich:

I think that if he were to do it, that would’ve been the way to do it. I do think that the President if… I mean, I don’t pretend to know how he was thinking but I would imagine he was thinking like this. Which is if the President of the United States at his State of the Union mentioned this, it would absolutely perpetuate the notion that the President is behind this, that it is perpetuated… That the Justice Department is being dictated from the White House which is absolutely not what you want. And look, people know this. I mean, at this point… I do think one thing that… In a similar vein, not that similar. But it’s a different kind of thematic thing which he did yesterday in, I think it was Pennsylvania, is he talked about how basically the Trump domination of the Republican Party has made it okay to have 6-year-olds raise their middle finger at the President of the United States. Have people say, “Screw you,” or, “F you.”

Joe Biden:

Where we talk to each other like we talk these days. While you see things that we see that no matter how tense things were, and they’re really tough in other parts of our history. Where you ride down on the street and there was a Trump banner with a FU on it and a 6-year-old kid putting up his middle finger. Did you ever… No, I’m serious. Did you ever think you’d hear people talk the way they do? Look, it demeans who we are. That’s not America.

Mark Leibovich:

I mean, it is insane out there. He did talk about that yesterday. I was a little surprised he didn’t… And I wouldn’t be surprised if he didn’t talk more about that in the future. But I do think that the 91 indictments while very compelling, especially if presented like you just presented them, is a third rail for-

Preet Bharara:

Yeah. It is just an interesting dynamic where in ordinary times, the fact that someone is accused of a crime is a political cudgel that the opponent would use. And here, it’s neither a cudgel that can be used by adversaries within his party, right? Because they have to thread a certain needle. Nor is it one that can be used by the adversary. So he’s oddly, in terms of political rhetoric, insulated from attack about it. It’s just an odd situation to be in. I’m not saying it shouldn’t be that way but it’s odd.

Mark Leibovich:

It is. I don’t think it’s insulated from attack. But I think by the President himself, it is. I mean, I also think that it would be smart for Democrats to, at some point keep, bringing up the idea that do you really think it’s possible for you to rig 91 charges against the former President of the United States in however many jurisdictions? I mean, do you think that’s how it works? I mean, explain to me what the innocent defense is for everything that he’s been accused of or at least two things. I don’t know.

Preet Bharara:

Yeah. Well, he’s gotten lucky because there have been sideshows and issues with respect to some of those cases. The first case that may actually go to trial in Manhattan, in state court there, jury selection starts shortly, March 25th. Lots of people think that’s the least strong as an evidentiary matter of the cases. What do you think happens if that case goes forward and it’s a mistrial or an acquittal and the other three don’t happen?

Mark Leibovich:

I mean, you would know better than me but I think I mean that is-

Preet Bharara:

Politically.

Mark Leibovich:

Politically, I think it’s a godsend for Trump. I mean, think no matter what happens he will declare it a witch hunt. I think the fact that it’s in New York, the fact that it’s a case that most people don’t understand. I mean, yes, Stormy Daniels, it’s salacious and everything. But I mean, that case has been… People know that case. They’ve known it for years. It feels like old news. And I think Trump, if he’s not found unambiguously guilty will immediately say, “See? I’ve been exonerated again fully.” So he will go from an imperfect case in New York and extrapolate to full exoneration as he does.

Preet Bharara:

I want to go back to the age question. Do you believe that will still be a dominant theme in the election?

Mark Leibovich:

Yeah. I think so.

Preet Bharara:

Yeah. Do you think he addressed it? Separate and apart from the quality of the speech or the energy of the speech, he did attempt to address it a little bit?

Joe Biden:

An issue facing our nation, isn’t how old we are, it’s how old are our ideas.

Mark Leibovich:

That was effective. I mean, I do think he should take it more directly and talk head on about, “Yeah. I’m old. I wish I were 61 and not 81. I get it. But I can do this job, I’ve proven I’ve done this job. I have a great team around me.” And then, pivot to his record. I think, look, I hate to say this, but I mean, you can run the country at 81 years old. You can run it at 83 years old. I mean, the president is, in some ways, a figurehead. I mean, and more if he wants to be. I mean, the presidency has operated on less than full capacity on many occasions. And I think if he were self-deprecating about it, he would win a lot of points.

Preet Bharara:

You have written about the age issue and said, “Look, what’s going on here on the part of Democrats and progressives is not just about age.” And you said, “They have a little bit of rage.” What do you mean by that and why would they be enraged by Biden?

Mark Leibovich:

Because they don’t want him to run. That has been backed up in poll after poll, strong majorities of Democrats and-

Preet Bharara:

But you’re not saying disappointment, you’re saying rage.

Mark Leibovich:

Well, he… There is a sense of bait and switch because he ran-

Preet Bharara:

Is it because it rhymes with age?

Mark Leibovich:

Possibly. No, the bait and switch is that he ran explicitly, actually said, “I’m a transitional candidate. I see myself as a bridge to the next generation.” I mean, these are lines that he probably wishes he did not utter. But he said them in 2020. There was an expectation that he was a one-time stopgap to deliver the country from a unique emergency of having Trump in the White House. And no, he didn’t say it explicitly. I understand that. He has the right to change his mind. And I think part of the anger is that no Democrats have dared to challenge him other than Dean Phillips-

Preet Bharara:

Yeah. Well, there’s one or two.

Mark Leibovich:

Marianne Williamson, with apologies to her and Dean Phillips. But no, look, I think at some point that will subside and it will probably come sooner rather than later and people will rally around him.

Preet Bharara:

Should he have announced at the start of his candidacy in 2020 or at some point earlier that he intended to be a one-term president? Because the cons of that are then, “You’re a lame duck and you can’t get anything done.” But would that have helped this problem?

Mark Leibovich:

He would say… I mean, his long-standing school of thought on this, going back to when he was vice president, is a politician is either on his way up or on his way down. And once you declare yourself irrelevant to the future, no matter how old you are, no matter how much people expect you to go away, you have basically taken yourself out of the game. Because politics, fundamentally, is a upward momentum game and you want to be seen as someone who’s part of the future. So that was, I think, his thinking. I mean, obviously, he got elected in 2020 so he didn’t need to do that. I’m not sure if it would’ve helped but I think a lot of people did assume that he would.

Preet Bharara:

I mean, it’s like that old story of two runners taking a break in the woods and they see a bear coming. And one guy starts putting on his sneakers and the first guy says, “You can’t outrun the bear.” He said, “I don’t have to outrun the bear. I just have to outrun you,” right? Biden doesn’t have to run fast or be Lincoln, he just has to be better than the other guy.

Mark Leibovich:

The other chestnut here that Biden uses is, “Don’t compare me to the Almighty. Compare me to the alternative.” He always attributes that to, I think, his dad or maybe his grandpop. He always-

Preet Bharara:

Certainly a relative.

Mark Leibovich:

He’s always… Attribution, very important in the Biden family apparently. Yeah.

Preet Bharara:

Last point perhaps on this, there’s a New York Times poll, I think with CNN but I’m not sure, that suggested that… It doesn’t suggest. It indicates that the enthusiasm level about Joe Biden among Democrats is 23%. One, do you buy that? Two, how much of a problem is that? And three, should we believe polls anymore in the age of cellphones?

Mark Leibovich:

I’ll take the third first. I mean, polls, there’s a big problem with polls. I mean, polls have been historically inaccurate and also ineffective in reaching people, as you indicated. And from what I can tell, just… And I talk to a lot of pollsters a lot, I mean, they are really struggling to get a grip on the electorate. In part because recent polling has really struggled to measure Trump’s voters, the enthusiasm of Trump voters, the reliability of Trump voters. Sometimes overestimating it in elections in which Trump is not on the ballot.

I think the best thing Democrats have going for them in all this, very uneven to say the least, polling, is that Trump in the actual primaries has underperformed his polling. So the polling of Donald Trump voters continues to lag behind or lag ahead of how he’s been performing. I also think it’s worth noting that the Times CNN poll came out a week ago. Democrats freaked as they do, as they should. But it is one poll. And since then, there have been four polls that have had Biden either even or in the lead. So it is a moment in time, the moment changes, and maybe the State of the Union did move the needle a little bit.

Preet Bharara:

Yeah. So here’s another data point that’s maybe a little more substantive going back a few days-

Mark Leibovich:

That wasn’t substantive?

Preet Bharara:

No, no, no.

Mark Leibovich:

Okay.

Preet Bharara:

It’s a substantive… Let me ask the question.

Mark Leibovich:

Yeah, yeah, yeah. Sorry.

Preet Bharara:

Super Tuesday, and you see all these reports, Bush runs away to victory. I don’t think there was really anybody of note, as you pointed out, running against him. And the data point I was referring to is in Minnesota, and particularly in Hennepin County, where Minneapolis was located, there was I think 19% or so not committed. So that’s, some might argue, a protest vote against the incumbent president and presumptive nominee in 2024. That’s not a poll. That doesn’t yield a false result because of cellphone usage or cellphone not answering. That’s people going to the polls and voting a particular way in a democratic stronghold. How problematic is that?

Mark Leibovich:

It could be very problematic. I mean, I think the two states where that really showed up a lot were Minnesota, as you mentioned, and Michigan-

Preet Bharara:

Worse in Minnesota than Michigan.

Mark Leibovich:

Worse in Minnesota. But yeah, and both are swingy states. I mean, Michigan more so than Minnesota-

Preet Bharara:

Swingy.

Mark Leibovich:

Swingy. I mean-

Preet Bharara:

You don’t want to go swing.

Mark Leibovich:

You don’t want to… I mean, you don’t want to lose Minnesota. How’s that if you’re a Democrat? But yeah, I mean, the Middle East young voters, a lot of young voters in Minnesota, a lot of young voters in Michigan, especially around college campuses. And look, I mean, these protests that you see around Gaza, around the Middle East, they’re happening everywhere a Democrat goes. I mean, even the AOC is getting heckled when she tries to go to the movie. I mean, this is real energy behind this and I think Biden really would like it to go away as soon as possible.

Preet Bharara:

Yeah. Well, what’s he supposed to do? Because there are people who are hawkish for Israel, who also think he’s not doing enough, and he’s over rotating to the other side and this is what people are saying. And then he has the problem on the other side, as you mentioned. Is there in fact… Putting aside what’s best for the Middle East and having an outcome that allows for the release of the hostages and peace and a long-term solution, putting aside what’s best in the merits for all of that. As a political matter, is it just an impossible needle to thread?

Mark Leibovich:

Yeah. It’s one of those issues where you say to yourself, “Wow. If I were president, I don’t know what the hell I’d do.” I mean… And beyond politics, it’s like, I mean, ideally you would want to do what you think the right thing is. But I mean, you don’t know who your partners are. I mean, the facts on the ground change so quickly. The emotions are so high. And it’s not like you can look back on any number of presidents who have perfected the Middle East issue. I mean, who have just left it perfectly spotless and who have raised no higher-

Preet Bharara:

It’s just been historically so easy but Biden screwed it up.

Mark Leibovich:

I mean… Yeah. I don’t know. Carter, I guess, had a good Middle East. But no, the… I don’t know. I mean, I can’t-

Preet Bharara:

Yeah. You’re not going to solve the problem for us?

Mark Leibovich:

I cannot solve the Middle East for us. Yeah.

Preet Bharara:

Okay. Let’s talk about… So the other player that remained until a day after Super Tuesday, Nikki Haley. Was it politically smart, long-term for her to stay in the race solo against Trump through Super Tuesday?

Mark Leibovich:

I think she could because she had money. And she worked basically for an entire year to get a two-person race and a clean shot at Trump. I think she didn’t get it very far. But in the last weeks, she actually spoke probably more truthfully than she had before. I think she probably dislikes Donald Trump quite a bit. I don’t think her future in today’s Republican Party is terribly strong. I mean, I don’t think this sets her up for being the automatic front-runner in 2028-

Preet Bharara:

Why not?

Mark Leibovich:

Because much of the party-

Preet Bharara:

She’s the runner-up. Sometimes in the past, we’ve seen the last person standing ends up having a presumptively significant advantage the next time out. And as everyone in this room is aware, 2028 is free and clear on both sides.

Mark Leibovich:

Yeah. I think given where the Republican Party is now, I would think that unless Trump stays in the White House after winning the White House, we have to always account for that. His heir apparent would likely be someone with MAGA credibility that he anoints. Whether it’s his son, his daughter-in-law, Vivek Ramaswamy, Kari Lake, someone like that. I mean, that’s where the party is at this point. I mean, Nikki Haley is… Maybe she ran the best race she could. Maybe this was the only way she could have finished second. But she is widely despised by the vast majority of her party right now because she’s crossed Donald Trump and that’s not a recipe for success.

Preet Bharara:

I will be right back with Mark Leibovich after this.

Who do you think has a greater chance of being Donald Trump’s vice presidential pick, Katie Britt or Nikki? Haley?

Mark Leibovich:

Katie Britt.

Preet Bharara:

Really? Okay.

Mark Leibovich:

Yeah. I think so. I think so.

Preet Bharara:

Yeah. Because sometimes in hard fought races, we’ve seen this before. You choose the runner up. Not going to happen here.

Mark Leibovich:

Yeah. I mean, that would require a… I mean, Donald Trump could not abide to someone who he feels like has been disloyal to him.

Preet Bharara:

Yeah. So obviously, she got trounced in every state, had a victory in the District of Columbia-

Mark Leibovich:

Not Vermont.

Preet Bharara:

Oh, and Vermont.

Mark Leibovich:

She won Vermont.

Preet Bharara:

Yes, that’s right. And District of Columbia. And in some of those states, 20 something percent voted for her. And those are people that one would presume are never going to vote for Trump. Where do those voters go? They stay home according to the people you talk to or do they maybe come to Biden?

Mark Leibovich:

A lot of them, if you believe… Exit polls are even less reliable than other polls or they’re less reliable than the actual numbers. Less reliable than other polls. I think Biden could get a fair number of them. I think… Unfortunately, a lot of them are Democrats anyway. A lot of them are independents. They voted in states where there was crossover. A lot of Democrats feeling that their vote for Biden didn’t matter in the primary said, “Why not?” And they decided that they would exercise their vote that day to try to make Donald Trump’s life a little harder. So there was a lot of that. But no, it is definitely a number that gets your attention. And if you believe what they’ve been telling pollsters and what Haley herself has been saying, these are not Trump voters necessarily at all in November.

Preet Bharara:

So now, the race is set, the rematch is on. I think, and I haven’t confirmed this, but as far as I can remember, the two person race is set earlier than any time I can remember. Is that right?

Mark Leibovich:

Yeah. Usually. I mean, usually there’s a pretty clear nominee after Super Tuesday. But I think this seemed pretty set after New Hampshire-

Preet Bharara:

Before that, right?

Mark Leibovich:

Yeah.

Preet Bharara:

And so, now you have… We have a lot of months to go.

Mark Leibovich:

Yes, we do.

Preet Bharara:

Is this going to be boring?

Mark Leibovich:

I don’t think so. I think the stakes are too high. I also think the variables need to play out. I mean, I think… Will there be a no labels candidate? I mean, is it exciting to watch while they try to figure themselves out and find a candidate?

Preet Bharara:

Not to me.

Mark Leibovich:

No. But it’s not-

Preet Bharara:

It’s not boring. Look, Donald Trump has a lot of… Donald Trump and boring usually are not in the same sentence.

Mark Leibovich:

Yeah. That’s true. I mean, it’s not boring to do any number of things that I would choose to do during the day other than pay any attention at all to what no labels is doing. So in that sense, it’s not boring. Yeah. I mean, it’s a delegate political situation here with both parties. I mean, I think Donald Trump’s… The court variable is going to be endlessly compelling to watch. I mean, it’s not endlessly uplifting but I mean, it’s all… I mean, I think-

Preet Bharara:

Yeah. Eight months is an eternity, as people will say. Do you expect there to be polling reversals up and down, Biden in the lead, Trump in the lead? Do you think it’ll remain fixed for a while? And I point out the first campaign I ever felt like I paid attention to in my formative years was 1988. And I do remember still, I may be off by a point or two, that at a late point in the campaign, I think after the conventions, Michael Dukakis, if you’ll remember him-

Mark Leibovich:

17 points.

Preet Bharara:

17 points up and it wasn’t close at the end.

Mark Leibovich:

It wasn’t.

Preet Bharara:

Do you expect to see that kind of seesaw this year or no?

Mark Leibovich:

I don’t think that wide. I mean, I think it’s a much more deadlocked nation than it was in 1988. By the way, one of the ten states Michael Dukakis won, West Virginia. Now, one of the Trumpiest states in the country so funny how this all swings. No, but the polls will go… I mean, but that is emblematic of the fact that polls definitely are very volatile. And they were volatile then and they’re volatile now. And I think if you believe poll respondents, I think if Trump is actually convicted, that could actually be something that affects the dynamic of the race.

Preet Bharara:

In his favor?

Mark Leibovich:

No. If he’s convicted of something-

Preet Bharara:

I say that… I wasn’t being facetious because a lot of people have said, contrary to what the intuitive sense was, and again, I don’t think these decisions were made for these purposes. That he was stagnating and losing favor within his party in the GOP. And some people point to a trend line in the polling that suggests that he started trending upward after the first indictment from Alvin Bragg. And so-

Mark Leibovich:

Yeah. Among Republicans. This was a Republican primary. So I mean-

Preet Bharara:

Well, so do you think on the progressive side, there are people who are like, “I’m voting for Trump but let’s see if he gets convicted.”?

Mark Leibovich:

No, but I think on the independent… In so much as that there’s a middle, I guarantee you that independent and even Republican swing voters are not going to be impressed with a conviction of the President because… I mean, at a certain point, whatever benefit you got from the idea that the President is being targeted is… I mean, that exists in a real hardcore area of the Republican Party which had decided their vote a long time ago. So among Republicans, sure, there’s indications that helped him but I don’t think in a general election group.

Preet Bharara:

You came on the podcast about a year and a half ago in part to talk about the book you wrote that was in part about the grip that Donald Trump had on the GOP. How much tighter is that grip today or is it the same?

Mark Leibovich:

It’s tighter. I mean, it’s amazing the levels of… It’s almost perverse, the degree to which Republicans who… I focused in the book and I’m focusing now still on the Republicans who know better. The Mitch McConnell’s, the Chris Sununu’s, who was one of Nikki Haley… Governor of New Hampshire who was one of Nikki Haley’s biggest supporters said some of the most nasty stuff about Trump. But all along said, “I will support the nominee.” And of course, yesterday endorsed him. McConnell endorsed him. I mean, Lara Trump. So at this Houston thing, she gets up and she says-

Lara Trump:

I think everybody in this room understands the battle, right? This isn’t just about right versus left, Republican versus Democrat. It’s about good versus evil.

Mark Leibovich:

So it doesn’t leave a lot of room for bringing the country together there.

Preet Bharara:

What was that… She was introduced. I saw a clip where the person was saying about Lara Trump and justifying her appointment-

Beth Bloch:

We are reminded of a powerful truth. God does not call the qualified, he qualifies the called. Lara Trump is the embodiment of this truth.

Preet Bharara:

What on earth does that mean?

Mark Leibovich:

It means that she married Donald Trump’s son and Donald Trump wants her to be vice chair of his campaign. And there’s a good chance they could use RNC funds to pay off his legal bills.

Preet Bharara:

You mentioned Mitch McConnell. He’s a complicated figure.

Mark Leibovich:

Yeah.

Preet Bharara:

Is his withdrawal from leadership at the end of the year a sign of complete and total capitulation of the GOP to Trump or it’s something else?

Mark Leibovich:

Yeah. I mean, it’s been… The signs have been there for a long time. I mean, what’s interesting about that is the day McConnell said he was stepping down was, I think, either also the day or maybe the day before the Supreme Court basically ensured a delay in the January 6th case. And Mitch McConnell basically ensured that three of Donald… Basically, he stole two. Or I don’t know. Stole is probably not the right word. But he ensured that two of the three justices that Donald Trump appointed would get on the bench.

So Neil Gorsuch and Amy Coney Barrett. I mean, Brett Kavanaugh, it was within his term. So I mean, he was essential. McConnell’s essential to Donald Trump’s legacy to really helping, making sure that he would not, at least at any time soon, be held accountable by the legal system. And then, there was all these statements from the House Freedom Caucus, by Marjorie Taylor Greene, just trashing McConnell on the way out the door. I mean, that’s how it works now. It’s like, “Hey. Thanks, buddy,” and it’s part of the meanness. It’s part of what we’ve come to expect from Trump so it wasn’t surprising. But I think the juxtaposition of this all happening within a few days never really gets old.

Preet Bharara:

You have written about this phenomenon and you said somewhere that recent events have shown a “new level of capitulation”. And that Republicans in their service of Donald Trump are, something like this, acting as if they’re joining a grocery line. What do you mean by that?

Mark Leibovich:

There’s almost a banal nature to following along. There is… I mean, the nature of capitulation, the nature of complicity, the nature of conspiring with someone that you know better. At this point, no one really thinks about it anymore. The context of the grocery line line was just senators who in the past have said, “Boy, that this person is terrible. January 6th was terrible. It’s time to move on.” Just tossing out statements on a Saturday. I think I was talking about Shelley Moore Capito, the quasi-moderate senator from West Virginia, a Republican, just endorsing John Thune, John Barrasso, John Cornyn, a senator from Texas, all who are vying to be in Republican leadership, all quietly have endorsed Trump. I mean, it’s just a quiet going along at this point. Which if you think about it is the nature of quiet capitulation which is what the MO within the Republican Party has been and really the key to survival.

Preet Bharara:

Beyond McConnell stepping down as leader, we have the retirements of Senator Sinema, Senator Manchin, Senator Romney, and people… Some people like them, some people don’t, some people like some of them. But they represent something in terms of centrism. I think mainstream centrism, if I can say that.

Mark Leibovich:

Sure.

Preet Bharara:

How do their retirements from public life or from office, at least, fit into this narrative that you’ve been discussing?

Mark Leibovich:

Yeah. I mean, I think one of the interesting things about that is none of them probably could have gotten elected. None of them could have gotten through primaries in their states. And look, everyone you just mentioned… A lot of people have very negative feelings within their parties, certainly about Romney, about Sinema.

Preet Bharara:

And Manchin

Mark Leibovich:

And Manchin. Oh, absolutely. I mean, a lot of Democrats are saying good riddance to Joe Manchin. This is how deals get made. This is where the center is. I mean, the center… To be in the center demands a lot of friction in many ways and there are very few people in this environment who have managed to survive that. Susan Collins of Maine is a rare exception. She got re-elected, I guess, in 2020. A couple of others. But Maine’s a unique state. But no, I mean, I think what you’re going to see is just domination by the base of both parties and fewer and fewer people who are willing to reach across the aisle.

Preet Bharara:

So it’s interesting we say all this when we’re talking about these people leaving office. Where do you put Joe Biden in 2019 and 2020 on that spectrum? Some people say that’s the reason he won, because he’s a little bit like a moderate centrist type Democrat-

Mark Leibovich:

Oh, yeah.

Preet Bharara:

Yeah.

Mark Leibovich:

Compared to today… I mean, today, that’s what he is. I mean, he’s definitely-

Preet Bharara:

And so, how much evolution has there been in the political sphere between 2020 and 2024?

Mark Leibovich:

Oh, a lot.

Preet Bharara:

A lot.

Mark Leibovich:

I mean, as people… There are the people on the extremes who… Not extreme. I mean, it sounds too pejorative. But I mean, look, it’s the people who get attention, the Ted Cruz’s of the world, the Josh Hawley’s of the world. I mean, there’s a whole strategy around just getting as much attention as possible, throwing the most incendiary bombs as possible. And the idea is to get clicks and get on TV and so forth. Joe Biden is not part of that school. And again, he’s a dealer.

Preet Bharara:

You’ve also written about this phrase that particularly on the left, people use rhetorically. Which is they look at the country and they look at how polarized we are and they look at threats to democracy and they say, “This is not who we are.” And you say some version of, “Well, of course it is because it is.” Because we’re doing these things and when people say, “This is who we are,” it begins to sound much more like a liberal wish than a true assessment of the country.

Mark Leibovich:

It’s true. I mean, look, every time something horrific happens, people… I mean, after January 6th, after Donald Trump says some unspeakable thing about someone else, everyone said, “Oh, this isn’t who we are.” Michelle Obama used to say it all the time. A lot of people said it, I think, actually at January 6th. I mean, a lot of Republicans have said it.

Yeah. I mean, look, I think America has to get their head around the idea that one of our two major parties is following Donald Trump into… And they will support him no matter what. I mean, this is someone who left office four years ago, three and a half years ago with 25,000 National Guard troops guarding the city from his own supporters. And a good portion of the country wants more of that and that is who, at least a big portion of us, are. And the word are, this is going to sound very metaphysical, but in a democracy, it’s a very messy notion. And a lot of different components get to add up to the who we are. And sometimes, it’s pretty messy along the way.

Preet Bharara:

What’s this campaign going to be about? We have eight months and maybe it’ll be about multiple things depending on what month we’re talking about. But is it going to be about democracy? Is it going to be about policy? Is it going to be about grievance? And second question, what should it be about?

Mark Leibovich:

I think it’ll be all of those things. I think it’ll be about abortion. I think it’ll be about age. I think it’ll be about things that we have no idea, things that we can’t predict. I think there will be serendipity behind it. I honestly… The question I probably dread getting more than anything is, what do you think’s going to happen? I mean, obviously-

Preet Bharara:

What do you think is going to happen?

Mark Leibovich:

Yeah. I have no idea. I mean, there’s part of me that thinks that eventually things will calm down and the incumbent Joe Biden will be re-elected. And that’s usually what happens anyway when a president runs for re-election and Donald Trump has extremely high negative ratings. People, I think, underestimate the level of revulsion there is out there for him. But look, I mean, he has proven incredibly durable. His supporters have proven incredibly loyal. And we all remember 2016 and the country hasn’t been the same since and we’re still in that country.

Preet Bharara:

Why isn’t the theme… One of the themes that Nikki Haley struck and some other Republicans like Chris Christie and others struck, why doesn’t it actually have any resonance? And it’s not about ideology necessarily or policy, but about the lack of winning. I mean, for a person who built his brand on winning, who can’t get tired of winning, boy, there’s been a lot of losing, right? 2018, 2020, 2022, potentially in 2024. Nikki Haley was right that she pulled better against Joe Biden than Donald Trump. It seems like an odd dynamic where… Put aside what the other people tell you, you have real data that shows that when that’s your guy, you lose. I mean, I guess the caveat to that is that the 2020 election was stolen. So that’s the mirage that people use to justify the loss. So it’s like Donald Trump is the political version of that game, Heads I Win, Tails You Lose, right?

Mark Leibovich:

Yeah. Absolutely. I mean, it’s a really good question. I would say two things. One, Trump, yes, he won the 2020 election. He won it big. His endorsement record is impeccable. Everyone he endorses gets elected. I mean, it’s a blatant lie and the record bears that out. But when he says it, it’s true for a huge portion of the population.

The other thing is the people… And this is really my hobbyhorse here, it’s the people who know better. It’s the people… The Republican Party’s putative leaders who could stand athwart him, who could stop waving the white flag and actually give a counterargument to bring a level of sanity to the Republican Party that he has taken away. These are people who are not in danger of losing. I mean, I think the average Republican is not losing because of Donald Trump. They need Donald Trump’s supporters to get elected.

Preet Bharara:

Mitch McConnell was there at an inflection point after the second impeachment trial.

Mark Leibovich:

Yeah.

Preet Bharara:

And had he behaved differently and wanted to shepherd the votes in a particular way and had he voted in a particular way, do you think he regrets not doing that?

Mark Leibovich:

That’s a… I don’t know. I have not looked at-

Preet Bharara:

You should ask him.

Mark Leibovich:

Mitch McConnell’s soul. The regret question… I mean, he certainly could have-

Preet Bharara:

You have a drink with Mitch McConnell.

Mark Leibovich:

What’s that? Yeah.

Preet Bharara:

It just reminded me of my favorite Obama joke.

Mark Leibovich:

Oh yeah, you go have a beer with-

Preet Bharara:

People was like, “Have a beer with-”

Mark Leibovich:

Yeah. Absolutely. You do it.

Preet Bharara:

You have a beer with Mitch McConnell.

Mark Leibovich:

If only you had gone and had a beer with… That was a good line. Obama, underrated comedian, by the way. He had really good delivery. McConnell, look, first of all, I agree with you. He could have actually gotten that done. I mean, if there were ten Republicans voted for conviction, you needed what? Seven, eight more? He could have delivered them.

Preet Bharara:

It’s just an odd… I keep saying odd dynamic.

Mark Leibovich:

It is an odd dynamic.

Preet Bharara:

Mitch McConnell clearly despises Donald Trump. Kevin McCarthy, notwithstanding what he did later, despised Donald Trump, said so in various versions. Probably now does again because he’s thrown to the wayside,

Mark Leibovich:

Yeah. But is too busy vying for-

Preet Bharara:

Ted Cruz, Josh Hawley, JD Vance said all these things and they have all reversed themselves. I mean, one could speculate that even the three justices he put on the Supreme Court don’t have any love or fondness or deep abiding respect for Donald Trump. I don’t know. But it is peculiar when you have so many members of his party who are vastly powerful leaders. You can presume they feel a particular way and they let it go like joining a grocery line.

Mark Leibovich:

Right. I wouldn’t underestimate the power of two things: cowardice and self-perpetuation. I mean, I think, look, if Lindsey Graham were to have kept up his criticism of Donald Trump that he famously unleashed in 2016, there’s no way he would’ve been re-elected. Ever.

Preet Bharara:

Yeah. He would’ve gone the way of Liz Cheney.

Mark Leibovich:

They all would’ve gone away. No, I mean, look, a lot of people really want to keep their jobs, especially like Lindsey Graham. Lindsey Graham-

Preet Bharara:

That’s by the way, a big problem, I think. If I can just editorialize for a second.

Mark Leibovich:

Yeah. Sure.

Preet Bharara:

For political appointees and for politically elected people, if you want to keep your job above everything else, it causes a lot of problems. My public service announcement, as one who didn’t keep his job.

Mark Leibovich:

No. I mean, self-perpetuation is the single most important dynamic in Washington. I also wouldn’t underestimate avoidance of the hassle of being picketed and having death threats and things like that. I mean, I do think that literal fear of one’s well-being is now a much bigger consideration than it was fairly recently.

Preet Bharara:

So that’s a very important point you make. So fear of violence is a real thing. And there was an article in the past few days about how members of the bench judges, in this country, have just figured that it’s part of the job now, part of doing business as a robed jurist. That there will be death threats and there will be concerns about violence. I feel that in the legislature in other places. Do you think that is a fear and a worry in the press and in the media for their own safety? Do you ever fear for your safety?

Mark Leibovich:

Sure. I mean, I would say when I started… At the New York Times when Trump came into office, I mean, you could just come and go as you please. When I left the New York Times or when Trump left office, or actually it was COVID so… By 2020, we had three armed guards in our building. We had constant threats. It’s been true of a lot of my colleagues. And as you mentioned, it’s true of the bench, it’s true of staffers, it’s true of people who defy Trump, especially within the party. And I just want to point out that this is really the definition of authoritarianism. It’s politics… It’s persuasion not by politics, not by negotiation, or persuasion or anything. It’s just brute political threat and violence.

Preet Bharara:

Mark Leibovich, thank you for being on the show. Thanks for your insight.

Mark Leibovich:

Thanks, Preet.

Preet Bharara:

Thank you all for coming.

My conversation with Mark Leibovich continues for members of the CAFE Insider community. In the bonus for Insiders, we answer audience questions about political media, turning red states blue, and polarization.

Mark Leibovich:

I mean, I think the appetite for a third party is huge. It’s growing. Independents are the biggest and still fastest growing block of voters.

Preet Bharara:

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

BUTTON

As Mark and I discussed on the show today and as I have said before, so very much is at stake this election year. The presumptive Republican nominee and former US president who’s facing four indictments, both federal and state, is a serious threat to democracy. And as Mark said, Republicans are getting in the grocery line to support Trump regardless of their personally held views of him. This is the former American president who seeks to be President again. And who are his idols? Who are his role models? Vladimir Putin and Viktor Orban. In thinking about this man and his third campaign, I was reflecting on something I’ve spoken at length about with my friend, chess grandmaster and Russian political activist, Garry Kasparov. Kasparov grew up in the Soviet Union where humor was a rebellion against authoritarian regime.

Garry Kasparov:

Look, you’re asking someone who was born and raised in the Soviet Union. So we knew that humor… We call it kitchen humor because nobody could talk about it publicly on the streets. This humor was our only way to reflect the awful reality of Communist Russia. So we… This is the idea that humor is something that helps us to deal with this reality and to exchange our views.

Preet Bharara:

Columnist Nicholas Kristof wrote in The New York Times in 2020, “Shaking one’s fist at a leader doesn’t win people over as much as making that leader a laughing stock. Authoritarians are pompous creatures with monstrous egos. And so, tend to be particularly vulnerable to humor. They look mighty but are often balloons in need of a sharp pin.” He cited what George Orwell wrote in 1945, “Every joke is a tiny revolution.” The former president doesn’t respond well to being challenged on the merits. He doesn’t debate in good faith. He yells insults and names and catchphrases until you move on. But humor can be powerful, humor can turn that all in its head. We saw a great example of this a few nights ago at the Oscars. Jimmy Kimmel, who hosted the event, used his few last minutes on stage to read aloud what he called a review from an incessant Truth Social user.

Jimmy Kimmel:

I just got a review and… “Has there ever been a worse host than Jimmy Kimmel at the Oscars? His opening was that of a less than average person trying too hard to be something which he is not and never can be. Get rid of Kimmel and perhaps replace him with another washed up but cheap ABC talent.” Well, thank you, President Trump. Thank you for watching. I’m surprised you’re still… Isn’t it past your jail time?

Preet Bharara:

Kimmel said afterwards that several people had advised him not to read the social media post on stage but he did it anyway. As many have since noted, making Trump the butt of the joke may actually be one of the most effective antidotes to his politics.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Mark Leibovich. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at preetbharara with the hashtag #AskPreet. You can also now reach me on Threads or you can call and leave me a message at (669) 247-7338. That’s (669) 24-PREET. Or you can send an email to letters@cafe.com.

Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The deputy editor is Celine Rohr. The editorial producer is Noa Azulai. The audio producer is Nat Weiner. And the CAFE team is Matthew Billy, Jake Kaplan, and Claudia Hernández. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay tuned.