Preet Bharara:
From CAFE and the Vox Media Podcast Network. Welcome to Stay Tuned. I’m Preet Bharara.
Bob Bauer:
One of the great concerns people have about Congress in its role is that we have more and more a separation of parties and not of powers. The party in the Congress, if it is in control and of the same party as the president, might choose to disregard its institutional obligations and itself become an enabler of the exercise of presidential authority, and that’s catastrophic.
Preet Bharara:
That’s Bob Bauer. He’s worn many hats in the legal profession. Bauer served as White House Counsel to President Obama from 2009 to 2011. He co-chaired the Presidential Commission on the Supreme Court in 2021, and he’s currently President Biden’s personal attorney.
He’s also my colleague at NYU Law School, where he’s a professor. Bauer’s new book is called The Unraveling: Reflections on Politics Without Ethics and Democracy in Crisis. He joins me this week to talk about the dangers of unchecked presidential power, the ethical failures of our politics, and playing the long game with SCOTUS reforms. That’s coming up. Stay tuned.
Earlier this week, Kamala Harris named Minnesota Governor Tim Walsh as her running mate. In lieu of our usual Q&A, I’m joined today by longtime political analyst and good friend of the pod, Mark Leibovich of The Atlantic, to talk about what the VP pick means for the presidential race. Mark Leibovich, welcome back to the show.
Mark Leibovich:
Preet, it’s great to be on the show.
Preet Bharara:
I think, as I was mentioning earlier, you’re becoming one of the regulars on this program.
Mark Leibovich:
What constitutes a regular? Is there a certain number?
Preet Bharara:
I don’t know. I don’t know. I would have to consult article two of the Constitution. I think there are divergent interpretations of that depending on if you’re on the progressive side of the court or the conservative side of the court. But anyway.
Mark Leibovich:
You make medallion level, that kind of thing. You should name it for frequent flyer statuses or something like that.
Preet Bharara:
I’ll take that under advisement. We have the vice presidential pick, the veepstakes as it were. My first question to you is two questions related to each other. Based on your sources and your reading and your reporting, did it at the end come down to Josh Shapiro Pennsylvania and Tim Walz of Minnesota, and if so, what’s your understanding of the reasoning behind picking Walz over Shapiro?
Mark Leibovich:
My sense is it did come down to the two of them, and I think it sounds like chemistry went a long way. What I also think though is that especially when you avail yourselves of all of the kind of insider political, “Knowledge,” whether it’s on Twitter, whether it’s in mainstream press and so forth, it sounds like there’s a lot of Kremlinology around this.
I think in a lot of cases it does just come down either to chemistry or frankly just ability to perform. I think the one thing that has propelled Tim Walz over the last few weeks, and certainly, I think, has been evident in his first day as running mate, is the guy has got a shtick.
shtick sounds diminishing, but he can talk. He can drive a message. He can tell jokes. He has stage presence. He has something that seems quite authentic and something that I don’t think will wear thin for a long period of time if it wears thin at all.
Preet Bharara:
But where has he been all my life?
Mark Leibovich:
That’s, I think, what we’re all kind of asking. I think he’s been-
Preet Bharara:
He’s been on the scene. He was a member of Congress for, I think, 12 years, governor for a number of years. I follow politics. Maybe you’ve been a devotee of his for a long time, but if he’s so good, and I think he is. He’s charmed the pants off of millions of Democrats and he did a great appearance at the rally on Tuesday, but how is he so little known, given what we now believe to be his talents?
Mark Leibovich:
Yeah. I think you have to remember that where has Josh Shapiro been all of our lives? Where has Mark Kelly been all of our lives?
Preet Bharara:
Well, Josh Shapiro, I think he’s a little bit more recently to the scene. I knew of him somewhat more, because Attorney General.
Mark Leibovich:
As a prosecutor, I assume. Yep.
Preet Bharara:
Yeah. But he’s a guy who can perform, too. People up to the decision, some people said he had the oratorical skills that were similar to Barack Obama. Somebody dubbed him Barosh Obama.
Mark Leibovich:
I saw that.
Preet Bharara:
His verbal stylings. He’s no slouch either, but at the end of the day-
Mark Leibovich:
He’s not.
Preet Bharara:
… people are asking the question, and I wonder if you have some ability to address it based on the people you talk to, and certainly the Republicans are going to town on this point, and some Democrats are disappointed that Josh Shapiro was not picked. Not because of some greater chemistry with Tim Walz, but because of his overly, in the words of some people, overly pro-Israel stance. Any truth to that?
Mark Leibovich:
I don’t know. I think that is a very kind of shorthand, and I think Republicans have already played that hand very quickly. It’s an easy thing to say. I just don’t think that Kamala Harris made her decision based on that. I think there’s a lot of upside. There would have been a lot of upside around Josh Shapiro.
I think they were two choices that had incredible skills, but also quite different skills. I think when things are this close, and also when both parties, or both meaning both candidates have such strong advocates, there’s going to be recriminations that, I think, probably get beyond the truth of the matter.
I think Republicans, they’re saying, “Oh, this just proves that a Jew cannot be on a Democratic ticket in this day and age,” or whatever it is they’re saying. They’re going way out over their skis is, I just think, simplistic. I don’t think it’ll get traction. I also think that that Shapiro remains as skilled and as impressive today as he was a couple of days ago, and I think he could also be a major asset as he proved in the initial rally yesterday.
Preet Bharara:
Yeah. The equation for Josh Shapiro, even for people who are not deeply enmeshed in the strategizing that goes on in politics, was you got to win swing states. Pennsylvania is one of the most important swing states. He’s the governor of that swing state. He’s a very popular governor of that swing state. Doesn’t he practically guarantee that state, and doesn’t that win the election? What’s wrong with that straightforward equation?
Mark Leibovich:
I would answer it in two parts. One, I think the so-and-so will deliver this state is overstated. It doesn’t generally hold up through history, whether through presidents picking vice presidents or would-be presidents picking would-be vice presidents who are going to bring a state. Many of them like Indiana are not in play.
Preet Bharara:
Did Kennedy win Texas?
Mark Leibovich:
You mean Johnson win Texas for Kennedy. That is the one people point to, one, because Texas was such an amazingly big state then, as it is now, but also because Johnson was such a titanic figure and ultimately they won.
Preet Bharara:
Al Gore did not win Tennessee.
Mark Leibovich:
Yeah. A lot of this is not relevant to most vice presidential picks. I would say this though. Pennsylvania is so important and Shapiro’s numbers are so impressive in Pennsylvania. This could be a case where you actually might be giving away a couple of percentage points, which could be determinative in these states that, I think, is probably the most important in this election.
Yes, maybe. But look, I don’t know. I think Walz has a capacity to scale in ways that people don’t fully understand, and I think a very optimistic reading of him is that again, he’ll wear well, but also that he can push some buttons and agitate Trump in ways that Shapiro might not.
Preet Bharara:
Is part of the analysis here two competing strategies? One would be the people who were advocating for Shapiro in part were, I think, in favor of a strategy of persuading undecideds, people in the middle, people in the center.
Mark Leibovich:
People in the suburbs.
Preet Bharara:
People in the suburbs, to show that Kamala Harris was picking somebody who was not all the way to the left. That’s a reasonable good faith strategy, but it was competing against the strategy of motivating the base. It seems to me as a third party outside onlooker that the great strength that the Democrats have at this moment is unbelievable momentum and enthusiasm across the spectrum of Democrats. I guess the strategy here was you don’t want to lose that at all. Is that fair?
Mark Leibovich:
I think it could be fair. Look, I do get both arguments. There is a centrist argument for Shapiro. Democrats or people who really do not like Trump or have no use for Trump at all want someone who’s going to at least give them a sense of centrism, competence, youth, that kind of thing, which Shapiro would have spoken to.
But I’m not sure Walz will cost a lot of people in the middle. One, I think because Trump is just so detestable to so many people. But I also think, look, the base is huge. The potential suburban swing voters are huge, but it’s a different kind of huge. The fact is Kamala Harris herself is going to have to make the case to both ends of that spectrum, and I think you could make an argument that Walz will be an asset there, too.
Preet Bharara:
Goodness, if you had said in advance that Kamala Harris’ running mate pick would immediately win praise simultaneously from AOC and Joe Manchin, wouldn’t you have said, “Well, that’s a home run?”
Mark Leibovich:
Yeah. Larry Hogan, too. People who know Walz really like him. There were some people who served with him in the house who thought he was kind of a blowhard, a bit of a grandstander, which come on. It’s Congress, right? It’s politics, right?
Preet Bharara:
Wait. Other blowhards were calling him a blowhard?
Mark Leibovich:
Yeah. That’s a pretty big caucus within a caucus. I would say there is that, but I would be hard pressed to imagine AOC, Bernie, and so forth praise Shapiro to the degree that Walz has, which again, could be a red flag to people who might be on the fence here.
Although I think ultimately it’s hard to imagine that there are people in the real world who say, “Well, I might not vote for Trump if she goes ahead and picks Shapiro. But now that she didn’t pick Shapiro, I’m definitely going to just jump into the arms of Donald Trump, because I’m really disgusted by someone on Twitter.”
Preet Bharara:
I keep hearing that some people are saying that maybe they won’t jump into the arms of Donald Trump, but they’re throwing their hands up and they may not vote at all. I don’t know if it’s true, but I hear people who are saying that.
Mark Leibovich:
Yeah. Okay. I also think, look, I think the ticket has some time. I think they benefit from this all having taken place in a pretty condensed time period. I think next couple weeks you’ll have the convention. Things will pick up. Presumably it’ll be a vice presidential debate. I do think that in a kind of sprint environment, Walz could actually benefit.
Preet Bharara:
Here’s the other thing that’s sort of odd. Both AOC and Joe Manchin endorsed the pick. Do you know who else endorses the pick? You know who else it seems, or at least is suggesting that they’re thrilled and giddy about the pick? Republicans.
When your opponents are giddy about your pick and your own people are giddy about your pick, somebody has got to be wrong. Just a quote from somebody on Twitter, a Republican said, “Republicans are privately thrilled with Tim Walz. Half a dozen GOP operatives, officials tell me Walz will be easily defined as a radical leftist who has been plagiarizing California’s agenda, fits the democratic caricature of white working class voters, but doesn’t alienate the pro-Hamas base.
“He appeals to the Dem base, but not the general electorate. He says, these people are saying, “Is it possible to select a VP pick worse than JD Vance?” He responds, “Yes.” In what universe? Look, I’m biased. I’m a Democrat, obviously. That strikes me as insane analysis.
Mark Leibovich:
It strikes me as insane analysis, too. Again, it doesn’t exist in the real world. One, because Walz has appealed to working class swing voters in a purple-ish state. Certainly a reddish district when he ran for Congress in the aughts.
I think the other thing is all of that assumes, yes, all of the arguments that privately Republicans or thrilled people are saying is predicated on Republicans being able to drive a smart and disciplined message. First of all, over the last month, the Republicans, the Trump campaign frankly has not shown it can do that, and certainly their candidate can’t. Trump seems to be really in a weird state over this. He seems to be losing his mind to a degree that he wasn’t even before.
Preet Bharara:
Even for him, you’re saying. Even for him.
Mark Leibovich:
Even for him, but again, this requires a disciplined message and a disciplined messenger, and they have shown no capacity to have either one right now.
Preet Bharara:
I’m going to quote from another guy, Mike Davis, who apparently served on the Judiciary Committee. I don’t think we overlapped, and according to his bio, clerked for Justice Gorsuch, so he can’t be a dummy, I guess, academically at least. He posts on Twitter, “VP picks usually don’t mean much.” Then he writes, “But Tim Walz is going to go down as one of the most catastrophic political decisions in US history.” Seriously?
Mark Leibovich:
Yeah. Please. It sounds like wishful thinking.
Preet Bharara:
Not even one of the most catastrophic VP picks, one of the most catastrophic political decisions in US history. If this is the level of intellectual strategic analysis on the part of the Republicans, then aren’t the Democrats in great shape?
Mark Leibovich:
Catastrophic? Hey, I’m old enough to remember JD Vance, right?
Preet Bharara:
That was months ago.
Mark Leibovich:
Seems like it. I don’t know. It seems simplistic, shallow, self serving.
Preet Bharara:
Yeah. I’m just wondering. I don’t get it. I don’t presume that people who are politically different from me are stupid. They’re generally not stupid. They’re smart people who want to use power.
Mark Leibovich:
See, that’s where you’re wrong, Preet. That’s where you’re wrong. You need to embrace the kind of superior arrogance that Democrats are known for and that has served them so well in the public eye over the years.
Preet Bharara:
Donald Trump has two campaign operatives who are quite capable and quite smart and quite aggressive and quite ruthless.
Mark Leibovich:
You’re talking about Chris LaCivita, Susie Wiles, the two people running their campaign.
Preet Bharara:
Correct. Correct. These are not novices.
Mark Leibovich:
True.
Preet Bharara:
These are not unbright people. I don’t know what they’re saying about Tim Walz. I haven’t quoted from them. I haven’t seen tweets from them, but if people who are in league with them are saying such idiotic stuff, on its face is just idiotic, I’m just wondering where that takes us.
Mark Leibovich:
Yeah. I don’t know if they’re necessarily in league with them. Like you said, these are smart, savvy, and people who know how to win elections and who have to drive a message. But ultimately, you’re only as good as who your candidate is and what he or she is going to listen to and abide.
I’m sure they have serious private doubts about their candidate actually making the kind of hay with Walz. Look, I’m not denying that Walz is going to give a lot of material to the other side to work with, but I think again, that assumes a disciplined message on the other side, but it also assumes that Walz cannot perform or defend himself to a degree that he’s shown that he actually can.
I think one of the things that gets lost, and this is not usually the frame that people think about this stuff in, but Walz can perform. Yes, maybe he was unknown to us or to most people until recently, but he’s shown both in speeches, certainly in a lot of these media clips he’s done, that he can make a very, very clear, fast, and really efficient defense of himself, but also offense against the, “Weirdness,” which I guess was his term originally, of the other side.
I don’t know. I think when we look to earlier in the summer and all the noise around should Biden get out or not, the argument people were using is, “Oh, he can’t win. That’s why he must get out.” No, the reason he needed to get out was he couldn’t perform.
After the first debate, they just wouldn’t let him out in public. Ultimately, a politician is going to make an impression based on his or her ability to perform, and Walz, at least from every indication so far, seems like he’s a very, very almost elite performer. Unclear if that will continue, but I think so far Republicans have to be nervous about what he could possibly do.
Preet Bharara:
Yeah. Look, his ability to perform, as I’ve seen in these clips when he’s presented with a litany of liberal things that he was for, his answer is, “Yeah. What a monster. I want kids to have full bellies so they can learn.” It seems like a very obvious, straightforward, good faith, and earnest answer, but you don’t hear a lot of people talking like that.
Mark Leibovich:
You don’t. I think that’s actually quite exhilarating, not just for the base, but also for swing voters, which is that Democrats, whether it’s unconscious or not, have really been talking like they’ve been on their heels for a long, long time. The noise machine of Donald Trump and his ability to just dominate, often through lies, the discussion about the monsters on the other side has, I think, made Democrats gun-shy beyond what I think the popularity of their actual issues will bear. Walz shows a very, very nimble ability to turn that around.
Preet Bharara:
By the way, do you believe that one side consequence and side benefit of these veepstakes has been, even though only one person could be chosen, it was Tim Walz, didn’t it arguably elevate the profiles of Josh Shapiro and Pete Buttigieg and others?
Mark Leibovich:
No question.
Preet Bharara:
Showed the country the deep, significant, talented bench that the Democrats boast.
Mark Leibovich:
Yeah, I think so. Especially, and presumably just for the first 24 hours, this has shown to be true. They’re unified. It’s not like Josh Shapiro and Pete Buttigieg are openly bitter about this, or from what I can tell, their supporters. Maybe Shapiro a little bit more, just given what we talked about earlier.
Preet Bharara:
Well, Shapiro reportedly was ambivalent about taking the job. I don’t know if that’s true or not, because people have different motivations.
Mark Leibovich:
It that’s a little spinny potentially. Quite often one of the first things you see in politics.
Preet Bharara:
I didn’t want it anyway.
Mark Leibovich:
Didn’t want it anyway. This is a bit of a hobby horse for me, but Democrats have really been blocked for many, many years. The next generation of Democrats have been blocked by the, “Well, it’s Hillary’s turned. Or, oh, well, Biden is here. Oh, look, Biden is going to try again,” thing, which has basically absorbed in the last 16 years since Obama has been elected.
Preet Bharara:
There’s been a Biden or a Clinton on the ticket, I think, since 1850.
Mark Leibovich:
- Yeah, exactly.
Preet Bharara:
Thereabouts, thereabouts.
Mark Leibovich:
During the Spanish-American War, Biden’s grand pop was on the ticket, but I don’t remember. I wasn’t alive then.
Preet Bharara:
Biden would have run himself, but he was only 34 and not constitutionally eligible.
Mark Leibovich:
True. Yep.
Preet Bharara:
Final question to you. Make a prediction about how the debate between Tim Walz and JD Vance will go.
Mark Leibovich:
Oh, man. When is that anyway?
Preet Bharara:
I don’t know.
Mark Leibovich:
I guess if it happens, I don’t know. I think it does seem like Walz is at his best in conversational think on one’s feet settings. I can imagine that Vance probably is going to be very nervous. He comes in with such a deficit, but look, I think one of the things that Walz said about Vance, which is, “Okay. Yeah. Vance is a Midwesterner. He made a lot of money in Silicon Valley. He wrote a bestselling book that trashed where he came from.”
I hadn’t heard that one before. Hillbilly Elegy. The guy can write obviously, but I hadn’t heard that critique before. I think know Walz can go populist. He can go on the offense, and I guess part of it will be his ability to defend what I’m sure Republicans will attack on his record.
Preet Bharara:
I’ll be tuning in. Mark Leibovich, thanks again for all your insight and analysis. Always appreciated, sir.
Mark Leibovich:
Preet, I look forward to coming back and achieving even higher frequent flyer status. Good to be with you.
THE INTERVIEW
Preet Bharara:
I’ll be right back with my conversation with Bob Bauer. How can our political institutions protect against their own erosion? What if that erosion comes from inside? Bob Bauer, a leading legal scholar, joins me this week to discuss. Bob Bauer, welcome back to the show.
Bob Bauer:
Well, thank you for having me.
Preet Bharara:
Not too many things going on in the world, as we were discussing.
Bob Bauer:
No. Very quiet out there.
Preet Bharara:
It’s a very timely occasion to have you. It’s always good to talk to you. You have relatively new book I want to congratulate you on.
Bob Bauer:
Thank you.
Preet Bharara:
The Unraveling: Reflections on Politics Without Ethics and Democracy in Crisis. We’re going to get to some of those crises in a moment, but I thought I would ask you, given everything that’s going on, have you been in recent contact with President Biden?
Bob Bauer:
Well, you’d not be surprised to hear, Preet, I never answer questions about my communications with the president, but I also don’t object to them either.
Preet Bharara:
That leaves me in a pickle as a podcast host. I guess let me tell you the flavor of my question. I just wanted to know if you have something you can convey about how the president is doing, what his state of mind is, how he’s feeling about the country, his decision, Kamala Harris’ candidacy. Anything at all about his state of mind that you feel comfortable sharing would be great to hear.
Bob Bauer:
I appreciate that. I’ve made it a rule not to either repeat a conversation I had with the president or characterize something I’ve heard from him or about him from the senior staff. I can tell you from my own part when I’ve been asked about this and I’ve given my own personal view, I put into the context, and I think this is obvious, but it’s worth mentioning that in withdrawing for the race, he was making a decision of course, as a candidate for reelection, but he was also making a decision as president of the United States.
He made a decision at that time, and I think he made that clear, that he was subjecting the political considerations, or if you will, prioritizing governing at this point over any other considerations that would govern his continuing his candidacy. It was a presidential decision as well as a political decision, and I think that will reflect well on him over time. To the extent that we can ever predict how history of books are written, I still think they’ll be written quite favorably about that decision.
Preet Bharara:
In your current role, you’re the personal lawyer to the president. Is that right?
Bob Bauer:
That’s correct.
Preet Bharara:
Under President Obama for a period of time you were the White House Counsel?
Bob Bauer:
That’s correct.
Preet Bharara:
Explain to people what the hell is the difference.
Bob Bauer:
Yes. No. I’m happy to do that. Now, I should mention I’ve done political work for both and continue to do political work for the party on voter protection and voting rights issues. But let me say the difference in few words, and that is the White House Counsel position I served in under the Obama administration is an institutional position.
One serves in an institutional role. It is true that there’s a particular president who asks you to take on that responsibility, and that is the flesh and blood embodiment of the presidency at that moment that you’re advising, but you’re nonetheless advising the president as president.
You’re not advising the president as a candidate for public office, not advising the president in his or her personal capacity. You are a government employee. You’re representing the United States of America, albeit serving in the role as counsel to the president.
As a personal or political lawyer for the president, first of all, you don’t operate in those capacities within the White House. You’re in private practice and you represent them privately, because those concerns, the political and personal concerns.
While they may intersect in many ways with how the building functions, how the presidency is conducted, will have some impact for reasons that we can discuss. Nonetheless, it’s a private undertaking on behalf of a private individual, and it’s an attorney-client relationship more in the setting that I think people are familiar with.
Preet Bharara:
Are there ever moments of more points of conflict between the role of the White House Counsel and the personal lawyer?
Bob Bauer:
It is more a question of how you manage to keep your head straight about the roles. It’s of course, very easy and there are stories about this in the history of the White House Counsel’s office to begin to look at the President as a private attorney looks at a private client. One has to continually remind oneself that you serve the president best by being the White House Counsel, as in counsel to the president, as in performing a role within the United States government.
Your obligation is to the institution of the presidency, not so much to the individual president who happens to occupy the office at that time. It’s less of a conflict as it is an issue you have to continually address. You have to keep it in mind that you’re on the one hand a member of the senior staff, but on the other hand you’re still a government lawyer.
Preet Bharara:
Then there’s something called the Office of Legal Counsel in the Department of Justice, which role has often been described as the lawyer to the government and also to the executive branch. What’s the role of the person who heads up that section of the Justice Department?
Bob Bauer:
They report to the Attorney General. They operate on delegated authority from the Attorney General, and their responsibility as head of the Office of Legal Counsel is to see that the Office of Legal Counsel provides legal advice across the executive branch and is called upon to the executive office of the president, that is the best legal advice that they can provide.
That is honest, straightforward, legal advice grounded in the traditional tools of legal analysis. Now, it is also true, and this is reflected in principles that govern the activities of the Office Of Legal Counsel, and they’ve been posted for some years to the Department of Justice website, that they’re still executive branch lawyers and they serve the president.
As such, they have to give an honest rendering of the law, an honest rendering of the legal complexities of a particular issue, potentially arguments on both sides. But do what they can, even if they have to offer the president alternative paths to the achievement of a policy objective.
Do what they can to assist the president in fulfilling his or her obligations as president, the fulfillment of his or her policy objective. They need to be helpful, but they have to be helpful within the boundaries of the law as best understood.
Preet Bharara:
Let me give you a hypothetical so we can understand the roles a little bit better. Let’s say somebody becomes president. Let’s say hypothetically it’s Donald Trump, becomes a president again and he seeks to engage in a self pardon.
That question has not been adjudicated. There is a prior OLC opinion from the Nixon era that addresses it a little bit. Obviously, it’s a matter of great importance to the personal lawyer of the president at the time. White House Counsel might also have a stake in it. On that question of a self pardon, just to pick randomly out of a hat a legal question, how would the OLC person, the White House Counsel person, and the personal lawyer, even criminal lawyer of the president interact with each other?
Bob Bauer:
Well, the criminal lawyer advising the president of course, will probably be, if that’s the client’s directive, pushing very hard for the recognition of a right of the president to self pardon. I think it’s not at all clear that presidents can self pardon.
As you point out, the Office of Legal Counsel, although the legal analysis was fairly threadbare, indicated that self pardons were a dubious exercise of constitutional authority, not an erroneous exercise of constitutional authority. They’ll make their case, of course.
The Office of Legal Counsel will certainly have conversations with the White House Counsel. It’s an enormous issue in the constitutional construction and understanding of the office. I happen to think, by the way, and Jack Goldsmith and I wrote about this in a book several years ago called After Trump. I think Congress should lay down a marker here and put up roadblocks to the exercise of any kind of self pardon.
I think presidents should not be able to self pardon. I think there’s a strong constitutional argument that they can’t self pardon. But as you point out, there’s probably executive branch law to be written on that topic, and the White House Counsel’s office, just to get to your point more specifically, has to be mindful that its job is not to help the criminal lawyer land a particular result for a particular president in a particular position of legal liability or exposure.
It is to be the White House Counsel who keeps an eye on the long range institutional issues and constitutional issues that are implicated in that decision, that are directly presented in that decision, and that’s going to be difficult. But if the president has wisely chosen the White House Counsel, that is the role the White House Counsel should play in that debate.
Preet Bharara:
On the pardon question, you said a second ago that maybe Congress has a role in preventing or putting up roadblocks against a self pardon. As I’ve always understood it, and you’re more expert than I am, the pardon power is pretty much sacrosanct and unrestricted. This separate legal question about whether you can self pardon, but otherwise, why wouldn’t it require something of a constitutional amendment to protect against that? What is it that Congress could do?
Bob Bauer:
The Congress, I think, could establish its, and again, I call it a marker, because that isn’t to say that Congress would prevail. But that Congress could put itself clearly on record of its understanding that the president could not thwart the criminal justice process by in effect making himself or herself virtually immune from any liability for misconduct in office, or for that matter, any liability for misconduct before taking office.
That’s such an extraordinary question here of accountability for the executive that putting the president in a position where he or she has to confront a coordinate branch’s view of what the take care clause and what the pardon power together mean. Congress has a stake. It enacts criminal statutes, and the president with a self pardon could literally undercut Congress’s ability to perform its constitutional responsibilities.
Preet Bharara:
Do you have a view on how when Donald Trump was in office, his White House Counsels observe the role of being lawyers for the institution rather than personal lawyers to the president?
Bob Bauer:
Yes. Based on the public record only, it seems that Don McGahn, who was the first White House Counsel, and I think he served for more than three years, definitely drew some lines. Much of this written about in the Mueller report, against efforts by the president to direct him to take certain actions that he thought it was improper for him to take.
He resisted them. Most notably of course, his desire to have the White House Counsel accomplish the firing of Bob Mueller, and then other actions that the president took to have the record altered so it didn’t appear that he had in fact directed Mr. McGahn to fire Bob Mueller.
Again, I don’t have the specifics in front of me at the moment, but there was clearly on Don McGahn’s part an understanding of the institutional role, and he testified. Again, this was with the president. Trump didn’t object, but Don McGahn, if I’m not mistaken, cooperated fully with the special counsel and, I think, sat for numerous meetings.
There’s a number in my mind, I’m not sure it’s accurate, but a good number of meetings, interviews with the special counsel. One had the impression that McGahn was trying to hold the line. There was one instance early on in the administration where he might have somewhat misconstrued his role, and the Ninth Circuit barked back at him, and that was during litigation over these Muslim bans.
There was one instance in which the White House Counsel purported to provide a binding interpretation of an executive order, and the White House Counsel has no independent authority to render interpretations of executive orders. The Ninth Circuit so said, but that was fine. That episode was behind them. But I think in these other cases that I just mentioned, I think he operated as far as the record establishes with an understanding of what his role in fact was.
Preet Bharara:
My concern is, and this concern extends well beyond the White House Counsel’s office and the White House itself to various cabinet agencies. But while we’re on this subject and you have background and experience in this, next time around, people are assuming, I think correctly, that there are not going to be as many appointees, whether within the White House or in Senate-confirmed positions, who are independent and draw lines and believe in guardrails.
That there are going to be a lot of people who we might refer to as yes men. In the office of the White House Counsel, if Trump gets re-elected and puts into position someone who basically wants to do the bidding or is prepared to do whatever bidding of the president that’s requested of him or her, what problems might that cause?
Bob Bauer:
Well, huge problems. I think one question, and again, I wrote about this with Jack Goldsmith in After Trump. One problem is that the White House Counsel’s office has become a medium-sized law firm, and in the wrong hands, it can attempt to supplant the role of the Department of Justice, where the Department of Justice should be playing that role.
If you have a White House Counsel who is a full time enabler and doesn’t care about drawing the sorts of lines we just discussed between institutional representation, individual representation, political representation. Then of course, that could be a very, very serious problem for sure.
Preet Bharara:
Can I give you another hypothetical as I’m thinking about it? This is in the wake of the immunity decision by the Supreme Court, which gave some contours of what immunity means, but largely is leaving it up to the lower courts to give much more shape and content to what immunity is.
Let’s say the next president of the United States, whether it’s Kamala, Harris or Donald Trump, decides that as a policy matter, he or she wants to take some action. Whether it’s taking some action on domestic soil or taking action against a terrorist abroad. The example that is always used with respect to former President Obama was the killing of a terrorist who happened to be an American citizen.
On the question of will there be immunity or will there be legal criminal jeopardy for a sitting president to engage in some action, and get guidance on whether the thing would be determined to be a core executive duty so that it’s immune or a presumptive official action, or a personal action, or a criminal action. If you’re the president, who are you getting your advice from on whether you can engage in that conduct or not?
Bob Bauer:
Engage in that conduct, in other words, with no risk or an acceptable risk of personal exposure later?
Preet Bharara:
Yeah. It could be either Harris or Trump. You’re going to take an aggressive action. There’s this jurisprudence that’s a bit unclear and murky. It implicates your professional authority, but also maybe your personal criminal liability after you leave the presidency. Do you have a powwow with your personal attorney and the White House Counsel and the head of OLC? I’m just trying to think how that would work in real life, and it’s not that far-fetched a hypothetical, I don’t think.
Bob Bauer:
No, it’s not. In the first instance, again, it’s going to depend on the president’s relationship to personal counsel or the president’s relationship to the White House Counsel. May also reflect in some way whatever relationship the president has to the attorney general, confidence the president has in the Department of Justice.
You can imagine a conversation in some order in the first instance with the president’s personal counsel and the White House Counsel. I would hope the conversation, the first instance would be with the White House Counsel. But in any event, it’s probably those conversations that take place first, because one of the questions that’s going to be raised is, well, is this an issue on which we want the Office of Legal Counsel to weigh in?
That is a significant issue. Maybe you do, maybe you don’t, or maybe you want to get an informal reading from the Office of Legal Counsel of where it’s likely to come out on that opinion, but you may decide that you don’t want them to commit it to writing.
Preet Bharara:
There’s a little bit of moral hazard for forum shopping here, isn’t there? Because if you want to take the action and you want to have the benefit of a blessing from somebody who plays an important lawyerly role, you want to get the answer that you want.
Also, because there’s an argument that if later somebody takes the position that you can be criminally liable for taking that action, you can trot out the legal blessing you got for whatever value that has to show that you didn’t have criminal intent. Do you have any reaction to that?
Bob Bauer:
Well, yes. You’re absolutely right about a critical point here, which is the advice of the White House Counsel. That is to say insulating the president from liability has only so much significance. It doesn’t insulate him. It’s not an opinion of counsel on which the President can rely to defend himself against a criminal charge.
The strongest position the president can always have in circumstances like that is to have a supportive opinion from the Office of Legal Counsel, from the Department of Justice. Of course, the opinion of president’s own personal lawyer in this circumstance hardly weighs at all except, I suppose, to the extent that the personal lawyer makes a persuasive case that has some impact on how the government lawyers think about the issue.
But there’s no question, the White House Counsel’s opinion could be helpful in orienting the president toward the issue. But it doesn’t have any protective or immunizing effect in the way that an Office of Legal Counsel opinion would.
Preet Bharara:
It’s so interesting why it’s important to understand the character of the people you appoint to these positions and the roles that they play. For example, Donald Trump. I’ll get off these hypotheticals in a moment, but you piqued my interest with them, given your multiple different roles.
Let’s say President Trump comes back into office and he wants to take a harder line on lots of things, including bringing back certain abandoned forms of enhanced interrogation techniques, namely torture. There is a lot of history and water under the bridge with respect to the propriety and legality and constitutionality of torture through the Office of Legal Counsel.
There were these memos under the Bush administration. Some of them were withdrawn. Your co-author and friend and colleague Jack Goldsmith has had a lot to say about these things. Trump comes back in, places a completely pliable loyalist in not just in the White House Counsel position, but at the head of the Office of Legal Counsel, and says, “I want our officials, whether in the CIA or in the Department of Defense or in other places, to be able to engage in any and all means to get information out of alleged terrorists, up to and including waterboarding.”
How is a person in the Office of Legal Counsel supposed to address that issue upon a direct request from a president? How would you expect in a Trump administration that might re-arise, a person who’s pliable and loyal to the president, wants to please the president, how do you think that decision would take place?
Bob Bauer:
If I fully understood the question, I think-
Preet Bharara:
Yeah. It was a little rambly.
Bob Bauer:
No, no, no. Because I was thinking about it on different levels. If the leadership of the office is completely pliant and is directing lawyers to disregard any kind of acceptable legal analysis, and that of course, you referred to it was the occasion for a major controversy around these very issues in the Bush administration.
Then it really falls to the lawyers in the office to decide whether they’re being asked to take steps that are just inconsistent with their ethical responsibilities, and that’s a critical issue. Now, they may decide that they’re being asked to do things that are inconsistent with their ethical responsibilities, and they’re told to take a walk and replaced with people who will do what they’re told, even at the mid or junior levels.
There’s not a whole lot within the government itself if it is corrupted from top to bottom by this ends justifies the means thinking that one can really do about it. But you have to hope that the career people and people of good conscience who came in put up a good fight to protect against that kind of corruption.
Preet Bharara:
Yeah. But the problem is that there’s a very good reason, and I know you appreciate this and anticipate this and write about it. There’s a lot less confidence that you’re going to get those people in those places, and part of the exercise of asking these hypotheticals, and I can go on.
What if the next president decides that he wants to use the military on domestic soil to put down protests? You need legal opinions for that, and if you have pliant folks, then some of those things are going to happen. I guess the broader question is how do you see that unfolding if Trump is reelected? How worried should we be that some of these things will happen, given his experience in not having as many pliant people as he’s wanted and his agenda of vengeance and turning back the clock, and a lot of these things?
Bob Bauer:
If the executive branch is run essentially into the ground ethically and in violation of constitutional norms and accepted practices, then other institutions have to step into the vacuum. You count on Congress, for example, which is currently incidentally considering reforming emergency statutes like the Insurrection Act.
You mentioned that, which authorizes the president without adequate constraints to deploy troops to the homeland. The Congress has to take steps to make it painful for the executives to go run completely off the rails. Then the Congress has tools available to do that all the way from exercise the appropriations power, oversight investigations, and of course, at the end of it impeachment.
The courts have of course, a role to play wherever these decisions are made and they’re potentially reviewable. If all those institutions misfire, then the answer is you’re going to have to have a massive political mobilization to alter the composition of the power structure so that these failures don’t continue.
One of the great concerns people have about Congress in its role is that, as my colleagues Rick Pildes and Daryl Levinson wrote in a famous article years ago, we have more and more a separation of parties and not of powers. The party in the Congress, if it is in control and of the same party as the president, might choose to disregard its institutional obligations and itself become an enabler of the exercise of presidential authority, and that’s catastrophic. I think we saw, by the way, a little bit of that, maybe a lot of it, maybe a decisive dose of it when Congress chose not to impeach former President Trump over his role on January 6th.
Preet Bharara:
I’ll be right back with Bob Bauer after this. I want to go to your book, which obviously addresses some of these issues. Your other books have as well. In the title of your book, you talk about democracy in crisis. Beyond the things that we’ve talked about, what are those crises?
Bob Bauer:
We’ve touched on something that’s fundamental to what I talk about in the book, and that is the role of ethics. Individual choices by people in positions of public or political responsibility that have an enormous bearing on our being able to keep, maintain, nourish, fundamental democratic norms and institutions.
We can have legal reform, and those legal reforms can either supplant norms because the norms have been failing, or the legal reforms can invigorate the norms. But fundamentally, if we have a politics in which individual actors simply won’t step up to their ethical obligations.
They believe that the opposition is an enemy to be destroyed, not to be defeated. They believe that law is only to be respected if it doesn’t get in the way of their accomplishing their policy or political objectives. That elections are to be accepted only if they turn out the way they want.
That there’s not much of a line between the public and the private in the sense that public office can be exploited for private gain, whether it’s private financial gain or political gain. We can go down that list of things that are so fundamental to the maintenance of a democratic culture that without them, we see an extraordinary corrosion in that culture.
There are many stories to tell about this. I try to tell many of those stories through my own personal experiences and observations, and in some cases self critically. But that moment of truth for people with those responsibilities, that ethical choice that they have to make is very, very critical ultimately.
Yes, legal reforms. Yes, law enforcement. All of that’s important, but there’s this whole range of decisions that could be made one way or the other, and I can give examples where it starts with an ethical failure and ends up in a catastrophe or a very serious damage to democratic institutions and norms.
Preet Bharara:
Yeah. I was just thinking there’s such an important role for lawyers in all this. The one question I haven’t asked you, I know you’re not a political consultant, although you’re very close to one or more who are. Just a couple of hours ago, we’re recording this on Tuesday afternoon, August 6th, and just a couple of hours ago, Vice President Kamala Harris announced her running mate, Tim Walz, governor of Minnesota.
A, if you have any reaction at all to that, since I have you. B, and I haven’t double checked this, but someone pointed out on social media that Tim Walz is the first person on a Democratic ticket since Carter in 1980 who was not a trained lawyer. Is that good or bad?
Bob Bauer:
I don’t think you need to have a trained lawyer in either the position of president or vice president. There’s some advantages if you’re the White House Counsel.
Preet Bharara:
Is it good for a change to have a non-lawyer?
Bob Bauer:
It could be. It could be. Lawyers, I guess-
Preet Bharara:
You’re very loyal to your profession, Bob.
Bob Bauer:
Years ago, I think it was Ralph Nader who said that legal minds are trained by being narrowed, and sometimes a fully legal mindset about things or legal training doesn’t necessarily lead to the wisest making in other spheres necessarily. There’s no constitutional requirement and no reason why there would be a requirement that the president or the vice president be a lawyer.
Kamala Harris is a lawyer, so we’ve taken care of that at the top of the ticket if people care about legal training in the presidency in the White House. I hope that wasn’t a criticism, because I can’t imagine it would be. As far as the choice is concerned, my own view, and of course, I’m a Democrat and strongly support the election of Kamala Harris of the presidency, is that it’s a solid choice.
He’s extremely well respected. I think he’ll perform very well on the campaign trail. I think he’ll be a strong governing partner. He was always a leading candidate, at least as one could tell from the press reports, for selection to this position, and I suspect that the choice will wear well.
Preet Bharara:
Going back to how we restore faith in institutions, on the issues that you care about as an institutional lawyer at the White House for a long time and someone who writes and is a scholar on these issues. If Kamala Harris and Tim Walz get into office, what are the kinds of things that they need to do to shore up the norms or replace them or invigorate them, which is, I think, the phrase that you used?
Bob Bauer:
I’m going to turn to the book that I wrote with Jack. I touched on, by the way, these issues in the most recent book that I wrote in The Unraveling. I would say the executive branch, the presidency is in very strong need of reform. It’s a powerful office. Its guardrails are inadequate.
Some of the norms that substitute for legal guardrails, some of the basic expectations of how presidents and vice presidents will conduct them in their office, have failed over time or have faltered significantly over time. While there are legal reforms or steps that can be taken to put the presidency back into better constitutional balance, there are also steps that presidents can take to strengthen the institution, establish a constitutional legacy in which self-restraint, if you will, and manifest respect for the constitutional system that we have does play a really important part.
Preet Bharara:
But that’s uncommon. It goes against when you’re a hammer, everything is a nail. My experience has been whether in a prosecutor’s office or in a legislative branch, once power and authority has been ceded to you, either by statute, by norm, or by a court, institutions and people in those institutions are very loathe to be restrained and give them up. Isn’t that right?
Bob Bauer:
No question at all that the pressure is the other way, because they’ve been elected to perform certain miracles in some cases or substantive goals, and they’re accountable to the voters for that. The availability of power exercised one way or the other to bring about that goals is of course, a powerful temptation to use it any way you can to move the agenda that you committed to the public, to your voters that you would move.
But I think there’s some examples of presidents who’ve been very mindful of these kinds of issues, these large institutional issues. An example is President Obama. In taking office, he took office against the background of very vigorous objections from some quarters about the way the GW Bush administration designed counter-terrorism legal policies. Guantanamo. Detention.
President Obama looked to do any number of things to both explain better the policies he would pursue and to reform or support reforms where he thought they were appropriate. An example would be reform of military commissions to try detainees who were suspected of and needed to be tried for terrorist activities.
Preet Bharara:
It can happen within 21 years of their being taken into custody?
Bob Bauer:
Yeah. Well, the question of how anything works is a different question than whether you actually confront the issue and attempt to do something about it. The whole history of legal reform in the United States is a history of both expectations not having been met and oftentimes unintended consequences.
The human hand is not very sure in drawing these kinds of reforms to be certain. But that was an example of reform of the military commissions, reform of the procedures for determining, although Congress put up a huge objection to this, determining whether terrorist suspects would be tried in the United States or in Guantanamo before a military commission. Whether it be tried in US courts or before military commissions.
He gave two speeches in the National Archives about counter-terrorism policy and the reasons why the administration was making the choices it was making, the general outlook that he took on those issues. It for example, bound itself to a different procedure and approval for asserting the state’s secrets doctrine at courts, to protect against having to essentially be fully accountable under law for making certain decisions with major national security ramifications that wound up before the judiciary.
There was an enormous consciousness that that was an issue and that it needed to be addressed. How much power presidents would exercise in the counter-terrorism sphere where public concern about the efficacy of presidential action, of course, is its most keenest, at its keenest. It’s a life and death issue.
That sensitivity that he displayed, even though he had his critics that you point out that were unhappy that Guantanamo wasn’t closed. They were unhappy about how military commissions have functioned. Unhappy even about the ability of the president to engineer more of these cases tried in federal courts rather than in military commissions.
But nonetheless, it was a real effort to deal with that that I thought was an exercise of executive self-restraint and a desire to have the president be accountable for those choices rather than to say, effectively, “I’m the president. I can do it.” I think there are examples of that, and you’re right, it’s not an easy thing to carry arguments for that within an administration when it is preoccupied day in and day out about just achieving what it has committed to achieve.
Preet Bharara:
What do you think President Biden’s legacy will be? You can speak about any aspect of his legacy, but obviously given your background and my background and the nature of this conversation, specifically on the issue of rule of law issues.
Bob Bauer:
I think his legacy will be very strong. He appointed Merrick Garland to be Attorney General. He said that he was not going to of course, take the position that the Department of Justice was essentially his law firm that he could direct to do what he wanted, that he could interfere somehow at will in prosecutorial choices. He was true to his word.
Preet Bharara:
He kept in place a special counsel who was appointed by his predecessor, rival, and chief attacker as the person overseeing the investigation and prosecution of his own son, which I continue to think is extraordinary.
Bob Bauer:
Yes. He kept in place special counsel. He cooperated fully with the investigation that took place by the special counsel into the question of the handling of classified information, the president’s own handling of classified information. I think he, to use the old expression, put his money where his mouth is on those issues.
Preet Bharara:
Any other legacy with respect to the courts?
Bob Bauer:
I do think there are two pieces to this. First of all, I think the president’s litigating position with the courts in various circumstances was commendably well conceived and well executed. But I will take the whole question of the Supreme Court and the controversy of the Supreme Court as a second sort of point I’d like to make here.
The first is, and I admit since I co-chaired it, I thought well of the report that he commissioned on the Supreme Court of the United States from this presidential commission on the Supreme Court. I think it did, by his account to the public, inform his analysis of court reform issues.
He continued to oppose what proponents call court expansion, opponents call a court packing. Enlarging the court numbers to compensate for past wrongs or even out the ideological balance or however you want to describe it. But he came around to support term limits.
I think that his willingness to speak to the reforms he thought were important, as he did recently in Texas, I think, is to his credit. There’s no reason why at this particular time the executive can’t have these views and put forward responsible positions grounded in studies like the one that his presidential commission conducted.
Preet Bharara:
But that presidential commission, not to be critical, that you very ably participated in, came out with its conclusion some time ago. Roe V wade was overturned some time ago, and other obvious historical and jurisprudential inflection points took place some time ago. What do you say to people who are saying in the waning weeks of what now is a lame duck presidency? It’s a little bit late and a little bit short.
Bob Bauer:
I don’t want to sound like I’m a reflexive apologist for anything that happens or has happened in the Biden-Harris administration. You’re asking me as an author and a fellow law professor at NYU what I think about his handling of those issues. Was it a little too late or not?
These are large issues. They cannot be taken up and dealt the way the people who feel most strongly about it with like. That’s never going to happen. Calling for a constitutional amendment, for example, as part of a court reform package is going to strike some people as fantastic, completely unrealistic.
I don’t agree. These conversations, in order for them to be serious, and any reforms passed to be lasting are going to require some time. Here’s the president of the United States who gave a speech and he supported in particular, I’ll single this one out, term limits.
That’s an important conversation that we have to have. That conversation is taking place. I don’t think it’ll happen in my lifetime, but I don’t know that in the lifetime of my children or grandchildren that the United States won’t revert to what is the practice across the country, with one exception in state Supreme Courts.
It’s the practice overseas in well over 20 democracies that we have either mandatory retirement or term limits. I think that case is so powerful, it will eventually be successful and his contribution to that debate, I think, will be recognized.
Preet Bharara:
Yeah. I’ve been thinking about this for a while also, and it seems to me that the current political climate is one in which the lack of term limits and the youthful, vigorous several conservative justices on the court present people on the Republican side, the conservative side, with an amazingly wonderful status quo.
It would be against their not just immediate self-interest, but medium term and relatively longterm self-interest to upset the status quo. Even though eventually you can imagine at some point the pendulum swings in the other direction and people on the other side of the political spectrum get elected to the presidency. By happenstance of who retires when or who passes away when and how many vacancies a future democratic president would have, maybe you would have it stacked the other way, and then perhaps conservatives would see the light, but that’s a long time in coming.
Bob Bauer:
Yeah. Although the original, one of the early proponents for a scheme of term limits, like the one that the president outlined in his speech, was a co-founder of the Federalist Society. Yes, Mitch McConnell jumped into the Washington Post and immediately opposed term limits and accused the president of attempting essentially to pack the courts to produce a court that will give the opinions the president wants.
But there is, and we saw that on the commission, significant bipartisan support for term limits. Significant support and an understanding that it is feasible in a way that would allay concerns that it is entirely partisan in its immediate motivation and effect.
There are ways to structure the transition from current lifetime appointments to term limits. A way to transition in a way that would address those concerns, and it would appear to be quite even-handed, and that’s the part we have to try to capture here.
Let’s have a debate about term limits. It’s about how you would do it in a world in which you don’t know who it would benefit in the short term, as opposed to have this debate totally wrapped up in current controversies about the jurisprudence of the current court.
Preet Bharara:
That would be true of a lot of issues. If we were all operating on important questions like this, constitutional or otherwise, from behind, as Rawls called it, the veil of ignorance. Unquestionably based on decision theory and logic and common sense and self interest, you would want a system where you would not get screwed if luck went the other way.
You’d want more balance. It’s unquestionably true there. It’s less true with respect to some other issues like term limits for members of Congress. I have mixed feelings about that. What’s the reason why on issues of reform? Expanding the court seems popular in many circles. What’s the reason that that was not on the president’s agenda?
Bob Bauer:
I can’t speak to the reasons why in the end the president chose to support term limits and not to support court expansion. I can say for my own part, and I’m speaking just for myself and not for other commissioners. There were divisions on the commission on these topics. But I just don’t see the sense, quite frankly, the practicality, the wisdom of court packing or court expansion, however you want to term it.
Preet Bharara:
It’s a blunt instrument to bring ideological balance into the court.
Bob Bauer:
It’s a blunt instrument. There’s no question that it’s going to initiate, if you will, a cycle of, call it appointments of violence in which just each side is going to feel free to start adding to the court willy-nilly in response to what the other side did, or because the door is open and they could now walk through it and do as they chose.
It just seems like that longterm consequence will be a highly, at least in appearance politicized court and erosion of the respect for the rule of law. I don’t see how that works well at all. If people are worried, for example, about the election of judges, I can’t imagine bringing something like court expansion to the Supreme Court or the federal court system at the highest level is going to work any better.
Preet Bharara:
I don’t know that you’ll answer this question, but I feel since I have you, I feel I need to ask this question. In hindsight, was the president’s decision to participate in that debate with Donald Trump a mistake?
Bob Bauer:
The president of the United States, I think, has spoken to that evening, how he felt that went. He spoke afterwards. He took interviews. He had a press conference. I don’t have anything to add to that. As I said, his ultimate decision to withdraw from the race and to focus on governing is one that I think he made as a president, because he thought it was his responsibility to think about the issue in those terms. I thought the way he explained it was admirable and will be to his credit, that he approached the decision in that fashion for the reasons that he gave the American public.
Preet Bharara:
What I’m really concerned about and a lot of people are concerned about is an issue or a series of issues that is well within your wheelhouse. You have many wheelhouses, Bob, and that is court battles over elections, the election at large, and individual elections in every state.
What do you think we can expect to see from the Trump side in terms of challenges at the ballot box to begin with? Is it your view that any attack on the replacement of Joe Biden by Kamala Harris, any court challenge with respect to that is dead on arrival or not?
Bob Bauer:
Yeah. That’s dead on arrival. That’s silly. The last thing that anybody should worry about is that there’s a legal case against a Democratic Party prior to ballot deadlines accepting the withdrawal of the primary denominated candidate and replacing that candidate with another under party rules. There’s no point of attack here that’s anything other than purely political. I can’t imagine a lawyer who’d be comfortable even taking a case like that to the court.
Preet Bharara:
We’ve seen a lot of lawyers.
Bob Bauer:
Yeah. Unfortunate. I guess I shouldn’t say I can’t imagine. I can.
Preet Bharara:
But presumably the disbarment of Rudy Giuliani and the suspension of licenses with respect to a number of other folks would have a deterrent effect on people of sound mind and body, don’t you think?
Bob Bauer:
Yeah. You would hope so. I completely agree. There are limits. There just are limits. There’s the law and then there’s of course, a whole range of reasonable interpretations and disputes about how the law should be applied in particular cases.
Then there’s just this universe beyond that where people are just making it up. They’re misleading the course. They’re tying the courts up with nonsense, and they’re also making decisions that, speaking of ethics again, are utterly disrespectful of the democratic process and institutions, norms, and practices that we should be doing everything we can to protect.
Preet Bharara:
Bob Bauer, thanks for being with us again.
Bob Bauer:
It’s a pleasure. Thank you for having me. I appreciate it.
Preet Bharara:
Thanks, Bob. My conversation with Bob Bauer continues for members of the CAFE Insider community. In the bonus for insiders, we discuss potential legal attacks on the 2024 election results.
Bob Bauer:
In the states and the localities where these elections are held, community leadership, not political leadership, but community leadership stand up for their election administrators. Those election administrators really need that support, and if they get it, we’re going to have a reliable, strong, well-managed election.
Preet Bharara:
To try out the membership for just $1 for a month, head to CAFE.com/Insider. Again, that’s CAFE.com/Insider.
BUTTON
I want to end the show this week with a note about music. The last few weeks have been a whirlwind. Heck, the last few years have been.
Recently, as I think I’ve mentioned, I’ve been doing something on Twitter, or X, where each day I post a song I love. It’s pretty simple, but it’s actually been pretty comforting for me. I and so many of you spend so much of our time focused on the urgent and critical political issues, especially as we come up on this election, and it can be very stressful.
But even, and I think especially in fraught and difficult times, there are other things that matter, too. Whether Kamala Harris or Donald Trump wins in November, music will remain. It has remained for as long as people have been around and through all that people have endured.
Art anchors us. I’ve talked about this before on the show. I spoke about the power of music just last week with Zeshan B, the incredible musician whose new album I had the privilege of executive producing. We need these anchors. People shouldn’t stop reading novels during these difficult times. They shouldn’t stop painting or writing poetry, or as I am, appreciating music.
These tweets are just one way that I’ve been doing that. A few days ago, I posed the fraught and controversial question, “I don’t want to start a war, but what was the best song of 1984?” Not 1983, not 1985, but 1984. Why? Well, because 40 years ago was a golden age in popular music.
10 years ago, Rolling Stone referred to 1984 as pop’s greatest year. The magazine wrote quote, “From Prince to Madonna to Michael Jackson to Bruce Springsteen to Cyndi Lauper, 1984 was the year the pop stood tallest.” I will say that the non-scientific winner of the most favored song of that year was, according to my Twitter poll, When Doves Cry by Prince, which was also listed as the best song of the year by Rolling Stone.
MUSIC:
This is what it sounds like when doves cry.
Preet Bharara:
Just to remind folks what a year 1984 was in music, the following songs are all from that year. Born in the USA, Purple Rain, Runaway, and Like a Virgin, oh, and also Thriller, Time After Time, and What’s Love Got to Do With It? Then there’s Smooth Operator, Take on Me, I Want to Break Free, and Jump.
It literally goes on and on. For good measure, I might also mention Owner of a Lonely Heart, Rebel Yell, Here Comes the Rain Again, Footloose, Dancing in the Dark, Relax, and Pride in the Name of Love. I’ve heard from many people who’ve connected with me about songs they love who share their favorite artists, who jokingly argue about which albums were better.
But not everyone has appreciated this nightly routine of mine. One online troll responded, “Okay. That’s it. Unfollowing now. Don’t need my feed cluttered with frequent music posts by a guy I follow for legal analysis.” Another one said something similar. “Respectfully, I value your opinions on matters legal and political. This is just noise.”
I had to laugh because, that’s sort of a variant of shut up and dribble, what but Fox News host Laura Ingram told LeBron James in 2018 after he had the temerity to talk about politics in an interview. In this case, I guess my dribbling is my legal analysis.
You might be wondering what the relevance of all this is. To me, it’s this. You can’t give up on joys and pleasures in the face of difficult politics. We need those things to nourish us. We need them to fill our cups so we can show up and keep pushing for the country we want to live in, a country with a stable democracy and a little music on the side.
MUSIC:
Born in the USA. I was born in the USA.
Preet Bharara:
Well, that’s it for this episode of Stay Tuned. Thanks again to my guests, Bob Bauer and 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 Preet Bharara 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 producers are Noa Azulai and Jake Kaplan. The associate producer is Claudia Hernández, and the CAFE team is Matthew Billy, Nat Weiner, and Liana Greenway. Our music is by Andrew Dost. I’m your host, Preet Bharara. As always, stay tuned.
