• Transcript
  • Show Notes

On this week’s episode of Stay Tuned, “The New Majority,” Preet answers listener questions about the long-awaited DOJ press conference addressing last Wednesday’s insurrection attempt, and the potential charges that the rioters might face. 

Then, Preet is joined by Claire McCaskill, the former U.S. Senator from Missouri and current NBC News and MSNBC political analyst, to discuss this unprecedented moment on Capitol Hill,  from the Democrats’ impeachment strategy to the state of play in the U.S. Senate. 

In the Stay Tuned bonus, Preet asks Senator McCaskill about the social media bans on President Trump. To listen, try the CAFE Insider membership free for two weeks and get access to the full archive of exclusive content, including the CAFE Insider podcast co-hosted by Preet and Anne Milgram. 

Sign up to receive the CAFE Brief, a weekly newsletter featuring analysis by Elie Honig, a weekly roundup of politically-charged legal news, and historical lookbacks that help inform our current political challenges.

As always, tweet your questions to @PreetBharara with hashtag #askpreet, email us at [email protected], or call 669-247-7338 to leave a voicemail.

Stay Tuned with Preet is produced by CAFE Studios. 

Executive Producer: Tamara Sepper; Senior Editorial Producer: Adam Waller; Technical Director: David Tatasciore; Audio Producer: Matthew Billy; Editorial Producers: David Kurlander, Noa Azulai, Sam Ozer-Staton.

REFERENCES & SUPPLEMENTAL MATERIALS

Q&A: 

  • DOJ press conference, DOJ.com, 1/12/21
  • Susan Hennessey Tweet, Twitter, 1/12/21
  • “Felony Murder,” FindLaw

THE INTERVIEW: 

  • Claire McCaskill with Terry Ganey, Plenty Ladylike: A Memoir, Simon & Schuster, 8/2015

THE INSURRECTION

  • Claire McCaskill, Tweet on Republican Senatorial Reaction to Insurrection, Twitter, 1/12/2021
  • Laura Hamdan, “Hawley ‘Knows He’s Lying,’ And That Makes Him Dangerous, McCaskill Says,” St. Louis Public Radio, 1/7/2021
  • Kristina Peterson and Natalie Andrews, “Republicans Weigh Trump Censure, Impeachment,” Wall Street Journal, 1/12/2021
  • Zack Beauchamp, “The Case for Consequences,” Vox, 1/12/2021 
  • Addy Baird and Ruby Kramer, “Republicans Are Still Trying To Keep Trump In Power Even After He Incited A Deadly Insurrection,” BuzzFeed News, 1/12/2021
  • Justin Baragona, “Trumpist Lawyer Lin Wood Goes on Unhinged Rant Suggesting Justice John Roberts Is a Murderous Pedophile,” The Daily Beast, 12/31/2020
  • Tyler Olson, “Hawley calls Chief Justice Roberts’ admonishment at impeachment trial ‘extraordinary,’” Fox News, 1/22/2020
  • Aris Folley, “McCaskill: ‘Mitch McConnell has presided over absolutely destroying Senate norms,’” The Hill, 12/23/2019
  • “McConnell: ‘Our democracy would enter a death spiral’ if Congress overturned election,” Axios, 1/6/2021
  • Martin Pengelly, “’Hang Mike Pence’: Twitter stops phrase trending after Capitol riot,” The Guardian, 1/10/2021

ACCOUNTABILITY FOR TRUMP 

  • Dan Merica and Sophie Tatum, “Clinton expresses regret for saying ‘half’ of Trump supporters are ‘deplorables,’” CNN, 9/12/2016
  • Burton Bernstein, “The Huntley-Brinkley Effect,” The New Yorker, 11/7/1964
  • Steve Benen, “As he exits, Trump has new reason to fear possible prosecution,” MSNBC, 1/11/2021
  • Eric Lipton, Ben Protess and Steve Eder, “An Urgent Reckoning for the Trump Brand,” New York Times, 1/11/2021
  • Seung Min Kim, Annie Linskey, and Josh Dawsey, “House barrels toward impeachment, and Biden scrambles to ensure it doesn’t hamper his agenda,” Washington Post, 1/12/2021
  • Jordain Carney, “Trump impeachment collides with Biden’s agenda,” The Hill, 1/12/2021
  • Juliegrace Brufke, “House GOP leader tells members to quit spreading lies on riot, antifa,” The Hill, 1/11/2021

STATE OF THE SENATE 

  • Ursula Perano, “Manchin says he will “absolutely not” support $2,000 stimulus checks as first priority,” Axios, 1/8/2021
  • Lee Drutman, “There’s a reason why Lisa Murkowski can threaten to leave the Republicans,” Washington Post, 1/9/2021
  • Molly E. Reynolds, “Republicans learn the limits of reconciliation with failed ACA repeal,” Brookings Institution, 7/28/2017
  • Mike Lillis and Scott Wong, “GOP embraces big stimulus after years of decrying it,” The Hill, 3/18/2020
  • Andy Semotiuk, “U.S. Immigration Reform To Be A Biden Priority,” Forbes, 12/23/2020
  • “Senate Passes Immigration Bill,” CNN, 5/26/2006
  • Burgess Everett, “McConnell: Senate will ‘probably not’ vote on Dreamers bill,” Politico, 6/5/2019
  • Eric Bradner and Sarah Mucha, “Biden says he’s a ‘bridge’ to new ‘generation of leaders’ while campaigning with Harris, Booker, Whitmer,” CNN, 3/9/2020

HARRY REID 

  • Senator Harry Reid on Stay Tuned with Preet, CAFE, 2/7/2019
  • Jacob Knutson, “Harry Reid on eliminating filibuster: It’s a matter of ‘when,’ not ‘if,’” Axios, 9/22/2020
  • Manu Raju and Burgess Everett, “Reid’s red-state defectors,” Politico, 11/13/2014

MISSOURI AND GEORGIA

  • Jo Mannies, “McCaskill takes on NRA as she promotes petition drive to advance new assault weapons ban,” St. Louis Public Radio, 12/20/2012
  • Bill Nigut, Emilia Brock, Sam Bermas-Dawes, and Jade Abdul-Malik, “Political Rewind: Former U.S. Sen. Sam Nunn Talks His Legacy, Current Political Partisanship,” Georgia Public Broadcasting,” 11/23/2020
  • Gregory Krieg, “Trump and Hawley set off Republican meltdown with Georgia elections looming,” CNN, 1/2/2021

2006 SENATE RACE

  • “Blunt wins Missouri governorship,” CNN, 11/3/2004
  • Susan Saulny, “McCaskill Claims Narrow Win in Missouri,” New York Times, 11/8/2006
  • “Schumer Floor Remarks On Senator Claire McCaskill,” Senate.gov, 12/19/2018
  • Seung Min Kim, “Inside Schumer’s inner circle,” Politico, 1/3/2017

2012 RE-ELECTION

  • Claire McCaskill, “How I Helped Todd Akin Win — So I Could Beat Him Later,” Politico, 8/15/2015
  • Reid Pillifant, “Schumer’s Democratic class of ’06 hangs on, in a Senate rout,” Politico, 11/7/2012
  • Kevin McDermott, “Is Claire McCaskill helping Todd Akin in the GOP primary?” St. Louis Today, 8/1/2012

BUTTON: 

  • Lisa Monaco’s remarks at her nominating press conference, Twitter, 1/12/20
  • “That Time President Trump Fired Me (with Leon Panetta),” Stay Tuned, CAFE.com, 9/20/17
  • “Civil Rights and Wrongs Under Jeff Sessions,” Stay Tuned, CAFE.com, 9/26/17
  • “Behind Closed Doors: Advising Obama and Mueller,” Stay Tuned, CAFE.com, 9/28/17

What is it like to go up against Josh Hawley?

Former U.S. Senator Claire McCaskill has won many hard-fought campaigns in Missouri — but she came up short in her 2018 race against Josh Hawley. Now that the world is getting to know Hawley for his role in last week’s insurrection attempt, what can we learn about him — and this political moment — from Senator McCaskill?

McCaskill has spent her entire adult life in politics, from the Missouri State Legislature to the United States Senate. She’s not short on stories, and she’s not afraid to tell is like it is: 

***

Preet Bharara: From CAFE, welcome to Stay Tuned. I’m Preet Bharara.

Claire McCaskill: I’m somebody who believes the blame lies more at the feet of responsible Republican elected officials in congress than it does at the president’s feet, because there have been many moments over the last four years that Republicans could have spoken up and said, “No, that’s just not true.”

Preet Bharara: That’s Claire McCaskill. She’s a former Democratic senator from Missouri and a political analyst for NBC News and MSNBC. After serving two terms in the senate, McCaskill lost in 2018 to Josh Hawley, who we’ve all come to know as a central figure leading up to last Wednesday’s insurrection attempt. Today, we discuss who is to blame for the attack on the capital, the Democrat’s impeachment strategy, and the state of play in the US senate. And before we dive in, I have some exciting news. You can now listen to the trailer for our new podcast, Doing Justice based on my New York Times bestseller of the same name. Subscribe to Doing Justice now wherever you get your podcasts to get a first look or listen. I can’t wait for you to hear it. My interview with Senator McCaskill is coming up, stay tuned.

This past Tuesday, the afternoon of January 12th, Department of Justice officials finally held an official press conference relating to activities from the insurrection attempt on January 6th. And a lot of people have observed the same thing and asked a question. Here’s Susan Hennessey, former Stay Tuned guest in a tweet who writes, “It is just insane that the FBI director, deputy FBI director and acting AG aren’t giving this pressure.” And Shawna 50382778 asks, “What are your thoughts here, Preet? Any theories, significance? #askpreet.”

So in case you missed it, the press conference was conducted by the acting US Attorney in the District of Columbia, Michael Sherwin and an FBI assistant director out of Washington, Stephen D’Antuono. And I had the same reaction that Susan had as I was watching. I will tell you in my experience, when you have something of this national significance, with this scale, this scope, that is the basis not only of maybe dozens and dozens of criminal charges all throughout the United States, but also the basis of the first in history second impeachment of a sitting president of the United States, it’s usually the case that the leaders of the relevant organizations stand with the US Attorney and others to make announcements to answer questions.

I will tell you that anytime we had a case of this significance, even though sometimes local US attorneys chafe at it, Eric Holder or Loretta Lynch or Bob Mueller or Jim Comey would be standing there to show how important it was to the federal government. I think it’s really weird, I agree that those folks weren’t there. Neither Acting Attorney General Jeff Rosen or FBI Director Chris Wright, especially since we went six days without hearing any official word from anyone.

People had to piece together what happened and make predictions about what was going to happen based on press reports, sometimes from anonymous sources and looking at clips on social media. It’s also weird, if you stayed up late, you might have seen that Acting Attorney General Jeffrey Rosen posted a slightly bizarre video on YouTube talking about the events of January 6th.

And one more thing on top of all that, the press conference was in the District of Columbia. That’s where Jeffrey Rosen is, that’s where Chris Wray is. So I don’t know what was going on there. It sends an odd message. I mean, I thought that the two officials who briefed the public did a good job. I think there were some very interesting things especially that the US Attorney Michael Sherwin said. He said among other things, “People are going to be shocked at the charges that are brought.” He said that there are about 170 open cases at this moment and the numbers will “geometrically increase” and that this is only the beginning.

So they were making a big show of force about how this is going to take some time. It is going to be far-reaching. The charges will range from misdemeanors all the way up to felony murder, which was interesting to me perhaps and seditious conspiracy. So there’s a disconnect between the silence of six days and then a press conference at which lesser officials were briefing the public, but in a tone and with content that suggested a deep commitment to bringing maybe perhaps hundreds of people to justice. So make what you will of that.

Two other comments about the FBI and DOJ. One is we learned new details about how actually successful the FBI was in transmitting intel information to local authorities in DC and disrupting travel on the part of some of the worst actors who were coming to DC on January 6th. There was the arrest of the Proud Boys guy and they talked about the disruption of other people who were probably among the more violent people coming. And even though they did those things, we still had that massive insurrection of the capital. The point of which is as bad as it was, it could have been even worse.

Another question arises as to how difficult it’s going to be to hold people accountable in connection with January 6th. And on that, I have I guess a couple of observations on the negative side. Obviously, there will be challenges because time has passed. People have fled the scene who are accountable. Evidence is able to be destroyed. Communications are able to be destroyed and one benefit that you sometimes get from an immediate real-time on- site arrest is the possibility of incriminating statements made by people who admit who they talked to and what they said and what their intentions were.

All of those things make it easier to prosecute no matter what the criminal charge is. On the other hand, a lot of these folks were not only unafraid, but downright proud of what they were doing and they posted video of themselves and there’s a lot of video that got taken and you have a lot of witnesses because it was done out in the public and in the open. It just is very difficult at the end of the day to track down every single person who is engaging in violence and insurrection on that day.

Some people have asked questions about what some of the more serious charges that are available to be brought against the rioters. For example, Twitter user kgdangelo says “You and Anne Milgram’s thoughts on viability of sedition charges and or felony murder, #askpreet.” Now, with respect to felony murder, I think that’s an uphill battle. Felony murder is the principle at law under which someone can be liable for the death of someone while not intending to kill that person, but while committing some other serious felony.

And in the process of committing that serious felony, if it was foreseeable that someone could die in the process, that’s felony murder. But the underlying serious felony has to be enumerated in the statute. So for example, felony murder is available if during a botched robbery, someone dies or during a rape, someone dies. And it’s not clear to me, and I haven’t studied it very deeply that there’s an available predicate felony that these rioters could be charged with that would result in a felony murder charge.

Although Michael Sherwin yesterday, the acting US attorney did mention felony murder in connection with possession of explosives. So I will look at that more carefully, but I think felony murder is not going to be available for too many people if it’s available for anyone at all.

On the other hand, seditious conspiracy is a charge that’s not often brought. It’s a serious charge, but it looks like it contemplates exactly what lots of folks did on January 6th. Let me quote from the statute. It’s 18 United States Code 2384, which says in part, if two or more persons in any state or territory conspire to overthrow, put down or to destroy by force, the government of the United States or this is the important part or by force to prevent, hinder or delay the execution of any law of the United States or by force to seize take or possess any property of the United States contrary to the authority thereof, et cetera, et cetera, you’re subject to imprisonment of not more than 20 years.

Now, I didn’t have occasion to prosecute or oversee the prosecution of seditious conspiracy. It didn’t happen a lot in the southern district. It doesn’t happen a lot generally, but if you look at the language of the statute, it seems that the violent mob was trying to do exactly what’s contemplated in the statute and that is to prevent hinder or delay the execution not just of any law of the United States, but a central core constitutional function and that is the counting of the ballots of the 2020 presidential election.

It’s a solemn constitutional function set forth in our most important organizational document and a lot of these folks came to the capitol for the express purpose of stopping that. So unless I’m missing something, I think seditious conspiracy will be available for a number of people.

It’s time for a short break, stay tuned.

My guest this week is Claire McCaskill. She’s a former US Senator from Missouri and now a political analyst for NBC news and MSNBC. McCaskill has won a number of hard-fought campaigns in deep red Missouri and over the years she’s developed a reputation for speaking her mind. McCaskill joins me today for a candid conversation about last week’s insurrection attempt at the capitol, how Joe Biden should approach his first 100 days in office and the lessons she’s learned from a life in politics.

Senator Claire McCaskill, thank you so much for being on the show.

Claire McCaskill: My pleasure.

Preet Bharara: So I have a lot of things to discuss with you given what’s happened in the last week in our nation’s capital, but I want to begin with a personal story which you will have no recollection of, but since I have you, I’d like to mention it. So back in 2006, I was working in the senate. I was chief counsel to Senator Schumer. He was head of the DSCC. He recruited you and others to run for senate and we’ll get into that later. The 2006 race, you won in Missouri and then the following year, I helped to oversee an investigation into the firing of US attorneys and I’ll never forget as a fairly young staffer.

I got a message that Senator McCaskill called and wanted to speak with me and I thought, Well, of course Senator McCaskill didn’t call because senators don’t call staffers. I can’t call her back. So I didn’t even want to call back your chief of staff because I thought that was too high ranking. So I called your LD, your legislative director. I said, “Hi, it’s Preet Bharara returning the call. Someone from your office wanted to speak with me.” And she said, “Oh, yeah. Senator McCaskill wants to speak with you. Hold on a second.” And then she put you on the phone.

I don’t know if people appreciate that is not so common for the senators in that body to talk directly to a staffer. So I just wanted you to know it’s a small thing, but I was thrilled that you took the time to ask me your question directly and we had a nice little chat.

Claire McCaskill: Well, Preet, that’s a great story.

Preet Bharara: It meant a lot to me.

Claire McCaskill: I just got to say that if I’m going to give a tip to anyone who is serving in government, know that the power is with good staff.

Preet Bharara: With the staff.

Claire McCaskill: And if you can find the right staff person that has the portfolio of the policy issues you’re working on, you will skip a lot of steps and get a lot more done going directly to that staff person.

Preet Bharara: It was the middle of my tenure there and I can count on one hand. I mean, Chuck Schumer used to do this. Well, he would talk to staff all the time and I think it’s smart, but I count on one hand the number of times that a sitting senator chose to speak to me directly as opposed to passing a question through the member. I’ll tell you who the other people were that I can remember. Sheldon Whitehouse and our erstwhile friend, Lindsey Graham.

Claire McCaskill: Well, there you go. Two out of three ain’t bad.

Preet Bharara: So we’re recording this on Tuesday, January 12th and who knows what God all things will happen in the next couple of days. My first question to you is what is the emotional state of your former colleagues after the violent insurrection on the capitol last week? And I’m sure you’re talking to some of them. How are they feeling not as legislators first and foremost, but as people.

Claire McCaskill: You know, Preet, I would describe and I would say this on a bipartisan basis, shaken. Certainly on the Democratic side, determined. When you’re dealing with United States senators, most of them know their way around politics, particularly in their own state. But there’s no question that all of my former colleagues are really, I believe of the belief that they’re in unchartered waters to some extent in terms of politics, especially my Republican friends because they are really in a vice grip right now between knowing the right thing to do and knowing the dangerous political waters they will be treading in if they do the right thing.

Preet Bharara: You said an interesting phrase a second ago that some people might be surprised to have heard. You said Republican friends. How is it that you have Republican friends? Can you explain that to the public?

Claire McCaskill: Yeah. I think it’s important to acknowledge that the members of the senate are friendly with each other and our personal friends. Now, I can’t say that for all of the senators.

Preet Bharara: I was going to mention a couple that maybe you can’t say that about.

Claire McCaskill: No, no. Certainly there are some that are so porcupine-esque that you don’t approach or even try to strike up a personal relationship with. But I spent a lot of time working across the aisle. I thought it was important that we get things done and frankly you have to work across the aisle to get things done that last, that aren’t fleeting. I think you’re going to witness that over the next couple of years with the tax law. That was not bipartisan and I don’t think many parts of that will last because of it. When you work with people across the aisle then you become friends and you continue to visit with them. I hope I remain friends with many of them until the day I die.

Preet Bharara: How big a deal in the history of the country were the events of January 6th?

Claire McCaskill: A very big deal and it will become, I think stark in the relief of time. I think books will be written about it, courses will be taught about I think this era in American politics and how it went off the path of normal and certainly the culmination of that will be what happened. Especially now, Preet that we’re in such a visual communication world. Those videos are now on people’s hard drives. They’re never going to go away. People are always going to remember those images. I think it is going to… Hopefully, it will be a cautionary tale. Hopefully, we’ll learn from it but there’s no question this was a big day in American history.

Preet Bharara: Who’s mostly to blame for it?

Claire McCaskill: Well, I’m somebody who believes the blame lies more at the feet of responsible Republican elected officials in congress than it does at the president’s feet, because there have been many moments over the last four years that Republicans could have spoken up and said, “No, that’s just not true. No, no that’s not true either. No, we’re not going to have a rigged election just because Donald Trump is afraid of losing.” And ultimately they painted themselves into a corner where they accepted either by embracing or ignoring the big lie, which was somehow this election wasn’t free and fair. And that is the lie that does the permanent damage. So I put just as much blame at the feet of Republican elected officials as I do at the feet of the liar in chief.

Preet Bharara: You tweeted just a few hours ago. I saw right before we started taping, “We should all memorize the eight senators who voted for the big lie after death and destruction in the capitol.” And then you list them, Hawley, Cruz, Marshall, Lummis, Hyde-Smith, Kennedy, Scott, meaning Rick Scott. And you wrote some former football coach from Auburn. What should people do about those senators?

Claire McCaskill: Remember who they are, remember what that says about them, and how they are willing to absolutely embrace something that they know, especially if you look at the leaders of the pack, Hawley and Cruz. I don’t need to explain to you the kind of legal education that those two men had.

Preet Bharara: Yeah, they all got into schools I didn’t get into.

Claire McCaskill: Yeah.

Preet Bharara: I mean, one Harvard, one Yale.

Claire McCaskill: Hawley clerked for Chief Justice Roberts and as a side note, when some of the crazy stuff was being said by the president’s lawyer, Lynn Wood, about Chief Justice Roberts, Hawley never even defended him, which is startling in how craven that is and how willing he is to set aside what is normal human behavior under the auspices of loyalty to a Supreme Court justice that you clerked for, how willing he was to abandon that in order to pursue his ambition to get a foothold into the Trump base for his future aspirations.

So those two guys know better. They know that the Trump’s lawyers had all of the “evidence of fraud”. They know they had an opportunity to present it in various ways in various forms and courts across this country, both state and federal. They know that it was soundly rejected as unreliable as rumors as not relevant or as not material. And instead of embracing the courts and the decision that the courts made, I think the tally is one in 64 in terms of one wins and losses for the Trump team in court.

Instead of embracing the courts, which both of them should have considering their background, they decided to ignore that in another brutal blow to our democracy because that’s a gut punch to our judiciary. So shame on the two of them. I mean, I hope both of them have huge problems in the future. I’m afraid Hawley won’t in Missouri. I can’t speak for Cruz in Texas, but I imagine both of them now have a toehold on the national stage they didn’t have before.

Preet Bharara: You mentioned that Hawley and Cruz know better. They’re members of the bar, highly educated lawyers, clerked at the highest levels. Does Trump know better?

Claire McCaskill: That’s a good question.

Preet Bharara: Let the record reflect that the senator has sighed.

Claire McCaskill: Yeah.

Preet Bharara: Because I have I struggle with that too and I sometimes worry… Just as preface, I sometimes worry that when we say things like he’s dumb or he doesn’t know better, or he’s blinded, we let him off the hook and I think he’s a much more intentional actor than we sometimes give him credit for. And I don’t feel like he should be let off the hook.

Claire McCaskill: Yeah, I agree with you. I don’t think he’s dumb. I think he is a master manipulator. He’s a marketer at his core, kind of a huckster. The guy who could come into town and sell stuff and then get out of town when people figured out it didn’t work. But I do think he has a form of mental illness in terms of the level of narcissistic behavior that he displays on a constant basis.

I have known people who were such degenerate liars that they lost track of whether they were lying or not. And he may go in that category. Such a complete liar that he loses track of where the truth actually is. Now, I don’t want to give him any credit for anything. He’s been, I think the worst president in our country’s history for a lot of reasons. But I think he’s in a different category than both Hawley and Cruz. Both of them are bad.

Preet Bharara: In your list of eight senators, I understand how you made the list based on how they voted and the objections they raised. Where do you place the current still majority leader of the senate, Mitch McConnell on the spectrum of contributing to the crisis, enabling the president, et cetera?

Claire McCaskill: Well, he is one of the people that decided it was in the best interest of his political power to play along to the extent that he needed to for the entire Trump presidency. Now, I will give a small smidgen of credit to McConnell for drawing the line and he did draw a bright line. I mean make no mistake about it. He worked very hard to keep Republicans in the senate from doing what Josh Hawley did and he pulled it off until holly broke.

Preet Bharara: So you give him a smidgen? He gets a smidgen?

Claire McCaskill: He gets a smidgen. I mean the speech he gave on the floor was the right speech to give and for many of us who have watched in agony over the failure of Mitch McConnell to stand up to Donald Trump time after time after time when he was lying about things. And especially on things like executive power and taking away the power of congress to appropriate funds. I mean, the way the president stole money from the military to build the wall was breathtaking for someone who had watched the righteous indignation of the Republican senators about the unbelievable executive overreach of Barack Obama.

Watching them all fold like cheap shotguns to Trump’s blurring of a line of the checks and balances that are contained within our constitution was horrible, but he did do the right thing when it came to certifying the election, and I guess I got to give a slight nod to him for that.

Preet Bharara: Everyone has some line. So let me ask you about one more person who was chanted about by a subset of the rioters at the capitol who went there, and we’ve seen the videos. They’re chanting hang Mike Pence. This is the loyal vice president to the president, to Donald Trump who arguably himself drew some line at the end and give a speech. Where do you place him?

Claire McCaskill: I think he will be an asterisk in this chapter. I don’t see him emerging in a strong role in the future. I don’t think he’s seen as strong. I don’t think Trump would ever allow him to be seen as strong. I think he’s seen as his shadow of Donald Trump. And then with the hardcore Trumpers, he is now a traitor. So I don’t know where his niche is in the new Republican Party. Does he somehow take on the mantle of institutional Republicans that believe in fiscal restraint and small government and limited executive power like the old days, and states’ rights? Or is he a new version of the Trump mantra of mini me and a little bit of populism, and anti-free trade?

I don’t think America has any idea what Mike Pence stands for other than very, very conservative and on social issues such as LGBTQ rights and abortion. So I assumed that if Trump would resign, he wouldn’t give Trump a pardon now.

Preet Bharara: I don’t think so.

Claire McCaskill: Maybe I shouldn’t assume that.

Preet Bharara: I think that ship has sailed, which is another reason why he won’t. But can we pause to marvel at the latest example of how much influence Trump has over his base? And we’ve seen it again, and again, and again, and some people call it a cult because there’s cultist behavior. But to me the most remarkable example is this incident that we’re talking about, where Mike Pence is the loyal number two, never speaks ill of Trump. There have been some reporting that your former colleagues to each other would joke about President Trump and about his flaws, et cetera, but they wouldn’t do it around Mike Pence because Mike Pence wouldn’t tolerate it.

So here’s a person who’s been as loyal as anyone, never upstaged the president and on a dime because he won’t do this crazy thing and give the election unlawfully and unconstitutionally to the president, not only does the base turn on him, but some of them talk about hanging him in public. I mean, have you ever seen any politician ever in your lifetime or read about who has that kind of flip on a dime influence with their base?

Claire McCaskill: No. And I think it’s a complicated explanation as to why. I think it starts that Trump understood grievance better than most American politicians. He has no empathy, but he understands grievance. And he understood that there was a wide swath of people out there that were sure that the only reason they couldn’t afford to retire and the only reason, they couldn’t afford to take a vacation or send their kids to college was because of Mexicans or Muslims or brown skinned or black-skinned people or women’s rights.

He tapped into that grievance, which obviously at some level has racist undertones, and he wrote it. The more the system fought Trump, the stronger that bound him to those folks. When Hillary called them deplorables, that was the first step of, “Yeah, well, we’ll show you deplorable.” And at every step along the way, the more the institutions rejected Trump’s way in horror, the more those folks decided he was their guy. And that was augmented extensively by the way we get our information now.

I remember, Preet I’m much older than you are. But I remember when I was a child, my parents would turn on either Huntley and Brinkley or Walter Cronkite, and we would watch in Missouri the evening news, came on at 6:00. We would watch the evening news at 6:00 and as soon as it was over, we’d turn off the TV and sit down and eat dinner. And we’d talk about what was going on in the world in our community or whatever at the dinner table.

Well, now people can go wherever they want to get affirmation, and sometimes fanciful theories that feed their grievances. And the fact that we can’t get to one place and determine what’s true, the elusive facts of modern communication is really allowing this kind of behavior to flourish and it’s a problem our democracy is going to continue to grapple with.

Preet Bharara: So let’s talk about the culpability of Donald Trump because that’s what people are talking about. They invoke the 25th Amendment or talk about it. Impeachment, the DC Attorney General is talking about a statute that maybe Trump violated. Maybe a future Justice Department can look at Donald Trump. What should happen to him? How should he be held accountable in a way that’s most consistent with our laws and democracy?

Claire McCaskill: It’s a tough question. And you and I have something in common. I will tease you and say I was a real prosecutor and not a fed. I spent years handling way more felonies than any person should ever have in terms of a caseload in the state prosecution systems in Missouri. And I think this is a very tough question because we do not want to make Donald Trump a martyr, but we also want to hold him accountable. I think him being impeached again, I think probably on Wednesday.

I believe he’ll be impeached by the house and I believe it will come to the senate and I do not believe they will convict him. Although, I think there’ll be more votes for it than there were the first time on the Republican side. Then the question is how is he held accountable? I think it’s hard to do things… I would like to see frankly him being prosecuted for his financial crimes, because I think it takes it out somewhat of the realm of he’s being persecuted for his politics, which is what his base is going to see if it’s all about him encouraging them to fight the result of the election.

I know this. I know that Donald Trump lied on financial documents. I know it as sure as the sun comes up in the morning, and I know that the federal government has all kinds of ways to get to people who lie on financial documents when those lies are relied on by financial institutions or the IRS. The cleanest way to get at Donald Trump is to continue to isolate him in terms of his businesses and to prosecute him for crimes he committed in association with his finances, I think. But I could be talked out of that.

Preet Bharara: I’m not talking you out of it. But on this thing that’s now got a lot of momentum in the house, you’re supportive of impeachment.

Claire McCaskill: Yeah, I think he should be impeached.

Preet Bharara: Yeah. So now when it goes to the senate, the timing is kind of awkward here, right? And I’m wondering how you think about your friend, Joe Biden and what he should be wishing for because on the one hand, boy, accountability is incredibly important. I happen to think if it’s possible to convict the president and also have a vote on disqualifying him from holding future office. But that takes time if you’re going to have a fair process that will be respected by people of good faith in the country.

Meanwhile, it’s going to be the first 100 days of Joe Biden’s presidency and he’s got COVID to deal with and he’s got a cabinet to appoint. What’s going on in his head? And if you were Joe Biden, what would you be advocating for?

Claire McCaskill: I think it’s hard for him. I think he has done a very good job of staying above all of this as he has prepared to enter the presidency. And I think he’ll continue to do that. I think he’ll be respectful of the senate, deciding what process they want to go forward with and if it’s an impeachment trial, I think he’ll be respectful of that. But I think Chuck will work with him to try to figure out a way to devote part of every day to what he needs to be getting done, whether it’s confirmation of his cabinet or whether it’s the COVID relief that he wants to get across the finish line particularly in terms of the massive vaccination program that he wants to embrace.

So I could see the mornings being devoted to Biden and the afternoon being an impeachment trial, but with Biden really focusing on the morning activities and allowing the senate to do its bidding in the afternoon and him keeping a distance in order for the country to see him as someone who was working on their behalf rather than punishing Trump.

Preet Bharara: What do you think about this idea of having the impeachment vote in the house and then the house delaying some weeks 50, 100 days before sending to the senate so that Biden has some running room. Do you think people have the appetite to return to the issue of Donald Trump sometime later?

Claire McCaskill: I think it’s harder, if you wait. I think it’s harder because I think right now the American people… I mean, the majority of the american people right now albeit a slim majority, but still the majority, a lot more a percentage of the people that voted for Donald Trump want him removed from office. So I think right now they have the political winds at their back.

So I think this is a decision that’s going to have to be made by the president-elect and by the leaders in congress. And some of that, I hope will be in consultation with at least Mitch McConnell. I mean, I think Kevin McCarthy is kind of a lost. He’s such a Trump tool. I don’t know that he should be even allowed in the room with the adults, but I guess they have to some extent. But I would assume Pelosi and Schumer and Biden are going to be the ones trying to suss this out and figure out the best way forward that protects Biden’s ability to capitalize on what we all consider the first 100 days, which typically is a honeymoon period for a new president.

Preet Bharara: Hear more of my conversation with former senator Claire McCaskill after this. So it’s going to be very divided senate, your former body. Who is the majority leader going to be? Chuck Schumer or Joe Manchin?

Claire McCaskill: Oh, it won’t be Joe Manchin. I think Joe, God love him, he’s my dear buddy, but he-

Preet Bharara: To make clear, that was a joke, Senator Schumer.

Claire McCaskill: Yeah. I mean, but Joe loves the idea that everyone is talking about him as the king maker and the power maker. Keep in mind there are a lot of senators who come from red states. And you’ve got two senators in Arizona that are the first two Democrats elected in their states in decades and they are up in 2022.

Certainly Mark Kelly. They’re going to want to chart an independent course. You’ve got Jon Tester from a very red state. You’ve got Sherrod Brown who is going to want to try to lay groundwork to make it more difficult for Rob Portman to get reelected in 2022. So they’re going to be… And then you’ve got you know the moderate Republicans who are going to want to legislate again that are going to want to be part of something whether it’s Lisa Murkowski who’s also up, I think in 2022 and Susan Collins.

Lisa Murkowski has made noises about leaving the Republican party. So there’ll be a lot of Democrats trying to woo her over to caucus with the Democrats. I don’t know that that would be possible. I think she would probably continue to caucus with Republicans although she’s technically ran as an independent last time. So there’s going to be a lot of people that are going to be willing to be in the middle.

Preet Bharara: So what’s that going to look like? Will there be some gang of four or six or eight on certain kinds of issues that try to chart a moderate course? Is Chuck Schumer going to have to count votes like crazy every single time? Is Joe Biden going to have to abandon some of his goals? What’s that going to look like?

Claire McCaskill: Well, first of all, remember right now there are only a few things that a majority vote controls. Chuck Schumer will control what comes on the senate floor, which is a massive power to determine what is voted on. That Chuck Schumer gets to decide. And they have a couple of shots at reconciliation, which is too boring to explain, but it is basically a process within the budget that allows them to have a majority vote on big-ticket items that cost money.

He’s got a couple of shots at that and he’s got the cabinet and judges, which are majority vote. But the rest of it is still 60. So it’s not a matter of counting one or two votes. It’s not a matter whether Joe Manchin is with you or against you, it’s a matter of can you get 10 or nine? It has to be at least 10 because the vice president won’t be voting if it’s not a tie.

So it still is going to be what it used to be in the senate back when we used to legislate, how do you find the sweet spot where you can get a lot of people together that will vote for something? We used to do it with some regularity and I think they can do it on infrastructure if they start using the committees the way they’re designed to be used instead of just writing everything in the majority leader’s office.

Preet Bharara: And you think there are Republicans who are prepared to come to the table and legislate, and compromise, and give Joe Biden what they seem never to want to give Barack Obama and that is achievements?

Claire McCaskill: Yeah. I think you forget that there were Republicans that voted and we did do things to get things done during the years of Barack Obama. Yes, the healthcare at one point in time was passed by 60. Believe it or not, we had 60 Democrats for one brief shining moment.

Preet Bharara: Right.

Claire McCaskill: And then it was reconciliation in terms of the follow-on bill as it related to the ACA. But there were a lot of other things. We had Republican votes on the stimulus. We had Republican votes on bailing out the auto industry. We had Republican votes on many things. That’s still possible. Will it be as possible at post-Trump as it was before Trump? I don’t know, but I think that there is a pent-up demand in the senate to actually legislate.

Preet Bharara: And probably pent up demand on the part of the public, right?

Claire McCaskill: Yeah.

Preet Bharara: I haven’t seen that in a while. But some things, let me mention a few, the prospects of them were debated hotly before the election, expanding the court. That’s not going to happen, right?

Claire McCaskill:  That’s not going to happen.

Preet Bharara: DC statehood?

Claire McCaskill: I don’t think that’s going to happen.

Preet Bharara: $2,000 stimulus checks?

Claire McCaskill: Well, it would be probably 1,400 minus the 600 they did.

Preet Bharara: Yeah, right. Make up the difference.

Claire McCaskill: I think that will happen.

Preet Bharara: What about without being specific, do you think we have prospects for substantial criminal justice reform?

Claire McCaskill: I think that’s definitely possible. Now, substantial is in the eye of the beholder.

Preet Bharara: Right.

Claire McCaskill: But I think there are things we now know about the criminal justice system that we can continue to fix, and that has been a bipartisan effort. I think that’s even possible we could get some bipartisan work done, and we’ve got 60 some votes for immigration reform and most of those Republicans have voted for it. Not all of them, but a bunch of them are still there.

Preet Bharara: So I remember a big push for immigration reform with a Democratic congress and a Republican president, George W. Bush in favor back in ’06, ’07 and it couldn’t get done then. I don’t mean to be overly pessimistic, but how much damage has Donald Trump done in setting back the clock on reasonable proposals for immigration and attitudes towards immigrants? I feel like he’s taken us back a ways and inflamed people’s passions against immigrants in a way that we haven’t seen in a long time? You think we can overcome that?

Claire McCaskill: I think we can. It’s not the majority of America that views immigration the way Donald Trump clearly did. I think that the immigration reform that’s possible is not going to be what you or I would like to see, but I think it’s definitely possible that we could finally get the dreamers. I mean remember, we passed the dreamer legislation in the senate and it was killed in the Republican-held house. So I think it’s possible that we could get the dreamer program codified and there might be a path to citizenship that has way too many hurdles for many of us, but it may take that many hurdles in order to get it passed and that probably is better than leaving the status quo.

Some of this is going to be getting used to the idea of what is possible that we can accomplish towards the values that we hold in the Democratic party and not getting impatient that we can’t get it all because our country is very evenly divided and therefore compromise is not unusual in American history. In fact, our founding fathers wanted compromise that’s why they designed the constitution the way they did. I mean, in most democracies, whoever wins the legislative elections controls the executive branch. No, not in the United States. Those are separate decisions the people make. So the fact that you have all three branches controlled by Democrats now. But just barely means that-

Preet Bharara: Just barely.

Claire McCaskill: … we shouldn’t make compromise a dirty work.

Preet Bharara: How’s that going to work? I understand compromise as between Democrats and Republicans and you can sort of think about that dynamic and there’s a lot of precedent for that. There’s also precedent for the following. It seems like the Democratic Party is the bigger tent and the Republican Party, a lot of people have left it because it’s nothing other than seemingly adoration for Donald Trump. But you have people on the left in the Democratic Party who are getting elected, in the house especially and they’re more moderate figures. And then you have Joe Biden, who I think has even referred to himself as a bridge to the future. How are those battles going to play out and by what tactics?

Claire McCaskill: I think it remains to be seen. We were able to defeat Donald Trump because we stayed unified as a party. And I give a lot of credit to the progressive wing of the Democratic Party for Bernie, and Elizabeth, and AOC, and all the people that support her all going all in for Joe Biden. That was essential for us in terms of turning Donald Trump out of office. Now, we’ve got to remember that we can’t start the fights that they now have in the Republican Party.

I mean, there’s a real schism in the Republican Party right now between people who believe in some kind of fiscal restraint and states’ rights and free trade, and all of the things that were the mainstays in the Republican Party versus the Trump party. We don’t need to fight each other. We can disagree with each other, but I think it’s important not to be critical of each other and try to figure out all those things we agree on that we need to move because there’s a bunch of them that we agree on without getting upset that it’s not going as far and as fast as some in the party would want.

Preet Bharara: How would you describe Harry Reid as majority leader? What kind of leader was he?

Claire McCaskill: Harry, old school, inside baseball. Harry, I’m not speaking out of school and if harry hears this, I know he’ll smile. This is not the most telegenic guy in the world.

Preet Bharara: He says that himself. I mean, an interview with Harry Reid is painful especially if it’s on TV. He had a spine of steel. Soft-spoken, but a spine of steel, fearless, understood that he was only as strong as his members allowed him to be. Ultimately, I think the challenge for Chuck Schumer is going to be… Harry and Mitch quit talking and I don’t think that Chuck and Mitch have talked a lot in the Trump years, but maybe more than Harry and Mitch talked. Harry finally just had enough of Mitch and that’s when he made the move to blow up the filibuster as it related to judicial nominations.

And in the heat of the Kavanaugh confirmation battle, words of some in our caucus that said at the time, “We will rue the day we did this,” kind of echoed in the hallways because Kavanaugh never would have been nominated much less confirmed if we had required 60 votes.

Claire McCaskill: There’s that old joke that I think President Obama made at one of those dinners where he said some people their advice to me is, for people to get along and for there to be bipartisanship…

Barack Obama: “Why don’t you get a drink with Mitch McConnell?” They ask. Really? Why don’t you get a drink with Mitch McConnell?

Claire McCaskill: Right, right.

Preet Bharara: Just since you mentioned, McConnell, what do you make of these members of the cabinet including McConnell’s wife, Elaine Chao, who resigned as transportation secretary with just days left in the term. Do you give them a smidge? Do they get any credit?

Claire McCaskill: I don’t know. It’s hard. How do you go to work for a guy like that, somebody who’s such a liar? I mean he’s such a liar and they all knew it when they took the jobs. I can’t give them much credit. I mean, frankly, the cynical part of me thinks they did it because they were afraid they were going to have to vote on the 25th Amendment.

Preet Bharara: Yeah. That’s what some people have said. Do you miss the senate?

Claire McCaskill: I don’t.

Preet Bharara: You don’t?

Claire McCaskill: I really don’t. I miss my friends. I work hard at trying to stay in touch with many of them. I feel like I landed in a tub of butter. I mean, you understand, Preet, most-

Preet Bharara: Is that a good thing?

Claire McCaskill: Yeah. Most of the people on Capitol Hill don’t know the pleasure of laboring politically in a state that’s hard. The vast majority of people elected to congress come from safe places. The only thing they have to worry about is primaries. It’s a completely different endeavor when you are constantly looking over your shoulder knowing that there’s never going to be an election that’s comfortable. So I’m glad to be done with that part of my life I feel like I can’t believe that somebody is paying me to mouth off and to say exactly what I think.

Preet Bharara: Tell me about it.

Claire McCaskill: It’s unbelievable.

Preet Bharara: Tell me about it, senator.

Claire McCaskill: I mean, it really is unbelievable. And I get to control my own schedule. I have 12 grandchildren, but my daughter will have her first child in 2021. And in the old days, I would be beside myself wondering if I could be there for the birth.

Preet Bharara: Congratulations.

Claire McCaskill: I’m going to be able to be there for the birth of my 13th grandchild. I know I’ll be there because I can control my schedule and I have no desire to go back to DC. I really do not miss the senate.

Preet Bharara: What you said a minute ago about being in a tough state politically, so do you take umbrage and get annoyed? I’m sure you do, when you get lectured by people from safe districts on the left saying…

Claire McCaskill: Yeah.

Preet Bharara: So explain a little bit of your annoyance about that.

Claire McCaskill: Well, first of all, I can see the annoyance if I had a bad voting record on issues they cared about, but if you look at my voting record, I mean I proudly wore an F in the NRA for my entire political career in a state that is a very big gun state. I proudly had the endorsement of planned parenthood in every one of my races even though I’m from a state that more Republicans before Trump identified as evangelical than Republican, and very strong anti-choice state.

There’s just a whole lot of issues that I had a really strong progressive record on, but I didn’t talk about those issues as front and center in my campaigns. And what was really frustrating is when the progressives would say well if you just talk about those issues more and more progressive would come out and vote for you and you’d win. No, no. That’s not true. There aren’t enough progressives in Missouri to make those issues the center point of your campaign. So it was frustrating when some people would complain that I wasn’t talking about women’s reproductive rights often enough in the campaign. All they had to do was look at my record.

Preet Bharara: So in that vein then, Georgia is not Missouri. All our states are different. But you had two people win in Georgia who did not run like Sam Nunn or like moderate. They’re two real liberals. Is that a function of the state of Georgia and its demographics changing or does it provide some ammunition to the folks who say the things we were just talking about that it’s possible for progressives who run on progressivism to win in tough states like Georgia and Missouri.

Claire McCaskill: Listen, Georgia is a much easier state than Missouri. Georgia, I think supported Trump in his first election by six points and Missouri did by 20.

Preet Bharara: Yeah.

Claire McCaskill: It is a more diverse state. It is a growing state in terms of diversity. So if it’s a different state,  number one. Number two you have to walk the line between motivating your base, making sure your base knows that you will vote on the things they care about in the right way, whether it’s climate or other issues. And then finally there’s Donald Trump. And Donald Trump, I think what he did particularly as it relates to Georgia was political malpractice. I think Georgia could have gone either way. I think Trump helped us deliver it, not just… I mean, believe me. There were lots of black women who helped and Stacey Abrams who was just amazing and all.

But Donald Trump really did some stupid stuff the last three weeks in terms of going after the Republican officials in Georgia and you know making it seem like that there really wasn’t a safe way to vote Georgia. So those three things kind of were a perfect storm for the Democrats in Georgia in that election. Now, that’s not to say that Georgia is not going to continue to get bluer. I think Texas is on the same path. Missouri-

Preet Bharara: Like Virginia was some years ago.

Claire McCaskill: Yeah.

Preet Bharara: I mean, it wasn’t that long ago that Virginia was pretty reliably red.

Claire McCaskill: Exactly.

Preet Bharara: Do you think the whole country?

Claire McCaskill: It remains to be seen if places like Arkansas, and Missouri, and Oklahoma can enjoy that kind of shift, demographic shift. Missouri is not growing and it’s particularly not growing like it should in our urban areas.

Preet Bharara: Think about the country as a whole. Maybe you don’t do that. Maybe you have to think about states individually since we still have the electoral college system. But do you think as a whole, the country is shifting left of center or holding or it’s a pendulum. What do you think?

Claire McCaskill: I think it’s very hard to judge right now because so much of this is wrapped up in the personality of Donald Trump. I think we are a center nation. Whether we’re center right or center left, I think depends on who’s in office. There are really significant numbers of swing voters. I mean, I would never have gotten elected to anything in statewide in Missouri if it weren’t for swing voters.

Preet Bharara: Right.

Claire McCaskill: And some of that is a reaction. I mean, when I got elected in 2006, I defeated an incumbent US senate senator. That was on the heels of George Bush in the Iraq war, but things had changed significantly by 2008, and 2010, and 2012. So some of it depends on who’s in power and some of it depends on whether or not the personality of Donald Trump will continue to galvanize people, both for the Democrats and against the Democrats.

Preet Bharara: Did you have to be persuaded to run for senate in 2006?

Claire McCaskill: Oh, yeah. I just lost the governor’s race. I defeated an incumbent Democratic governor, which is in-

Preet Bharara: In the primary?

Claire McCaskill: Yeah, very unusual.

Preet Bharara: In primary a Democrat senator, what were you thinking?

Claire McCaskill: Yeah, very unusual thing to happen in politics. So I-

Preet Bharara: Positively AOC of you.

Claire McCaskill: Yeah. I defeated the incumbent governor in the primary and then lost in the general to Roy Blunt’s son and then I was really not in the mood to run again. I was talked into it by both Chuck Schumer and Chuck Schumer likes to take all the credit, but my husband took my hand and said… And by the way which was brave of him because all they ever do is beat up my husband when I run. He took my hand and said, “Hey, you’re good at this. Your country needs you. Get out there and do it. You can win this race.”

Preet Bharara: I will tell you, I started working for Senator Schumer in the beginning of ’05 and I was on the legislative side, but I would overhear conversations he would have with others including Harry Reid about recruiting candidates for 2006. And since it’s just you and me talking right now, I will tell you that Senator Schumer would frequently say that you were his favorite recruit for 2006. He would get off the phone with you sometimes and he was just radiant. He was really thrilled when you chose to run.

Claire McCaskill: We are very close friends and we still talk all the time and he will proudly tell you he can… Ask him what my phone number is and he will trip off his tongue like clockwork. In fact, we just talked last night. So we’re close friends. Since just the two of us talking?

Preet Bharara: Just the two of us.

Claire McCaskill: I will tell you this, I like Iris better than I like him.

Preet Bharara: Well, I should tell you it’s just the two of us talking right now. Hundreds of millions of people are going to hear this, but I think Chuck would not be upset to hear you. Did you give him any advice?

Claire McCaskill: I mean, from time to time I give him advice and usually when he asks, but sometimes I call him when he hasn’t asked and say, “What’s going on and why are you doing it this way?” If you work for him, you know he usually has a very strong mind about the right way to get things done, but…

Preet Bharara: But he’s very open-minded. I mean, the best thing about working for him-

Claire McCaskill: He is open-minded. And he will listen.

Preet Bharara: … there’s a story that staffers would tell. They all told me this before I started working for him, and to give me a sense of what it’s like, and it’s not all you know roses because he’s a very tough boss. He works harder than anybody on his staff. And the chief of staff once told me he was yelling into the phone and there were expletives, et cetera. I think he was around his parents and he gets off the phone. A friend said, “Who was that? Who are you yelling at?” I said, “That was Senator Schumer.” He said, “You can talk to him like that.” And the truth is you can. No staffer whoever talked that way to Arlen Specter ever lived to the next birthday.

Claire McCaskill: Right. That’s correct.

Preet Bharara: But with Chuck Schumer, he loves debate and he loves argument and he will yell at you and you can yell at him. There’s a famous moment, I forget who the staffer was, and all the staff was arrayed against Senator Schumer on some issue and he was being very abstinent about it. He knows more about most things than everyone else when it comes to senate matters. And the staffer finally won the day by saying, “Chuck, you may be smarter than all of us individually, but you’re not smarter than all of us collectively,” which caused him to laugh and I think changes mind. Is there a favorite political race that you think about in your experience?

Claire McCaskill: That I participated in?

Preet Bharara: Yes.

Claire McCaskill: Or one that I’m looking forward to?

Preet Bharara: One that you were in.

Claire McCaskill: I mean, probably the most fun for me was the Todd Akin race because we were able to do some Jiu Jitsu moves to get the opponent we wanted.

Preet Bharara: So that was 2012. You’re running for re-election.

Claire McCaskill: Yeah, re-elect in ’12 and there were three credible Republican opponents running and one of them, I knew was my best shot of winning. So I, along with my team I directed a strategy to help him and it worked. We got him and that was… I knew he would… He was very sincere in his beliefs and had no filter, and I knew he would say something-

Preet Bharara: Yeah, he said something…

Claire McCaskill: … in the heat of the race that would…

Preet Bharara: He said something very famous.

Claire McCaskill: And he said something very famous, Todd Akin.

Preet Bharara: You want to remind want to remind folks what the subject was and what he said?

Claire McCaskill: Yeah. The chapter in my book is called The Magic Vagina because what he said was that women who are raped have a way of shutting that whole thing down, basically spewing nonsense that somehow if a woman was really raped, she couldn’t get pregnant therefore there was no problem outlawing abortions for even women who were raped. That was pre-Trump and pretty outrageous thing to say in those days. We were able to use that and the Republican party distanced itself from Todd Akin if you can imagine such a thing. The fact that they distanced themselves from him really was what we needed in Missouri and we won a big, big victory in 12. It was the only race I ever had really that wasn’t close.

Preet Bharara: I think he used the phrase legitimate rape.

Claire McCaskill: Yeah. If it’s a legitimate rape.

Preet Bharara: Legitimate rape?

Claire McCaskill: If it’s a legitimate way rape, the woman’s body has a way of shutting that whole thing down.

Preet Bharara: And that was too much for the voters of Missouri?

Claire McCaskill: That was too much for the Republican Party and for the voters in Missouri. Now, I don’t think it would be too much for the Republican Party now which is something.

Preet Bharara: What did you like being more, an elected official or prosecutor?

Claire McCaskill: Which do I like more, prosecutor or elected official? Oh, boy. That’s a tough question. I loved being a prosecutor.

Preet Bharara: How come?

Claire McCaskill: Well, I am somebody who really… The only thing that that hearings were fun for me is it was the only chance I had to even come close to a cross-examination. Especially if you’re a state prosecutor and remember the FBI, for everyone who’s listening doesn’t answer 911 calls. They decide what cases they’re going to take and the state prosecutors take everything else. So if you are in a busy urban DA’s office, you are in the courtroom all the time. You are trying jury trial after jury trial after jury trial and it is an amazing experience to be part of a jury trial.

I loved that part of my work. The collegiality of the prosecutor’s office, the ability to help victims, we did a lot of groundbreaking things. We started one of the first drug courts in the country when I was the elected DA in Kansas City. I started a domestic violence unit which had never been done before. We did, not just community policing, we did community prosecution. And we had a drug tax where we not only funded additional police officers, but we also funded drug treatment.

So I was very busy in a holistic way looking at the drug problem as a public health problem. So it was exciting, it was meaningful, and it was a terrific job. Now, the US Senate was pretty darn good too. So I would say it was a great bookend for my career.

Preet Bharara: Senator Claire McCaskill, thanks for spending the time. It was a real treat.

Claire McCaskill: Thank you very much, Preet.

Preet Bharara: My conversation with Claire McCaskill continues from members of the CAFE Insider community. To try out the membership free for two weeks, head to cafe.com/insider. Again that’s cafe.com/insider.

So I want to end the show this week with a brief word about the Justice Department, where I spent most of my adult career. We on the show and on the CAFE Insider podcast spend some time criticizing, you might say actions of the Department of Justice, I think with good reason and with good cause. I think there has been an erosion of independence. I think there’s been an erosion of accountability and I don’t need to rehash all those things now, but it’s been unfortunate to see, and it’s been sad to see.

In a few days, Joe Biden will take over the presidency and as a consequence of that, he will install new leadership at the top of the department. Joe Biden’s nominee to be the attorney general is Merrick Garland, veteran of the Justice Department, long-serving DC circuit Court of Appeals judge. I’ve met him a few times. I don’t know him well. He has an outstanding reputation for integrity and for honor, and for intelligence, and for understanding the law, and being loyal to the law. And I think the combination of his understanding, Merrick Garland’s understanding of the independent function of the Justice Department.

With Joe Biden’s statement, and understanding, and commitment to the independence of the Justice Department bodes very well for the next four years. But Merrick Garland is not going to be doing that job alone, no matter how good he is and it’s been a while since he’s been at the justice department. As both a professional and a personal matter, I wanted to mention for those of you who may not have realized it that he has an amazing team coming in.

The number two person at the Justice Department, the deputy attorney general will be Lisa Monaco. The number three person at the Justice Department, the associate attorney general will be Vanita Gupta. Those of you who have followed me for a while know that these are two of my closest friends and they’re not only friends of mine, they’re friends of this podcast. My very first guest three and a half years ago on Stay Tuned with Preet was former CIA director and defense secretary, Leon Panetta. But my second guest, my second ever guest was Vanita Gupta. My third ever guest was Lisa Monaco.

Both of them have been on the show many times. Both of them have been a resource for me when I think about how to describe things with any kind of intelligence and most recently, Lisa Monaco was co-hosting a podcast for us, for CAFE, United Security with Ken Wainstein. She will obviously not be able to continue her co-hosting obligations and duties when she’s basically running a department of 110,000 employees.

But believe it or not, their Stay Tuned experience is not their greatest qualification for these important jobs. Lisa spent 15 years at the Justice Department in every kind of role as an adviser to Janet Reno back in the day, as an assistant US attorney in the DCU’s attorney’s office, as a staff member to the deputy attorney general in the Obama administration, as the first woman to head the national security division of the Justice Department, and then she later became the counter-terrorism advisor to Barack Obama.

And Vanita Gupta for her part, has been a lifelong champion of civil rights at various places including the ACLU, and most recently as the head of the leadership conference for civil and human rights. But in between those things, she was the head of the civil rights division at the Department of Justice and criminal justice reform along with civil rights advocacy is I think one of the most important priorities that the department should put before it.

In all sorts of matters, we had at the southern district and obviously that US attorneys had around the country, Vanita was a leader in making sure we got things done and making sure we set things right. For my part, a lot of the work that we did at Rikers Island was enabled by Vanita helping us out and giving us the resources and approvals that we needed. So that was a pleasure.

It will not come as a surprise to everyone that when I was the United States attorney in SDNY, we sometimes had issues with the folks in Washington, the folks at headquarters, but as Lisa and Vanita know because I told them this in real time, my two favorite people at main justice in Washington when I served were none other than Lisa Monaco and Vanita Gupta. They’re not just smart people, they’re great people, they’re ethical people. They know how to get things done. And if I can use the word, they’re both bad asses. The department is lucky to have them and the country is lucky to have them, and I wish them great luck and great success because there’s a lot of work to be done. Congratulations.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest Claire McCaskill. 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 Preet Bharara with the #askpreet or you can call and leave me a message at 669-247-7338. That’s 669-247-PREET. Or you can send an email to [email protected]

Stay Tuned is presented by CAFE Studios. Your host is Preet Bharara. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. And the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Calvin Lord, Geoff Eisenman, Chris Boylan, Sean Walsh and Margot Maley. Our music is by Andrew Dost. I’m Preet Bharara, Stay Tuned.