Amicus with Dahlia Lithwick

Episode: The Rule of Law and the Ethics of Poking the Bear
Date: April 14, 2018
Guest: Ben Wittes (Editor, Lawfare; Senior Fellow, Brookings Institution; friend of James Comey)

Overview

This episode grapples with the fragile state of the rule of law in America during the Trump presidency, as mounting threats to the Department of Justice and the independence of prosecutors dominate headlines. Host Dahlia Lithwick and guest Ben Wittes analyze recent high-stakes political and legal moves—including the raid on Michael Cohen, talk of Mueller probe firings, the Scooter Libby pardon, and the bombshell early excerpts from James Comey’s forthcoming memoir. The discussion explores the ethical quandaries and the practical realities of responding to an administration openly antagonistic to institutional norms, and asks how institutions and individuals should react at this fraught moment.

Key Discussion Points & Insights

1. Rod Rosenstein's Precarious Position

[00:33 – 06:10]

• Why hasn't Trump fired Deputy AG Rod Rosenstein yet?

  • Wittes: The act would be "vile, despicable, and irrational," yet it's expected simply because Trump threatens it and rallies his media base around the idea.
  • Quote (Wittes, 05:17): "Firing Rod Rosenstein would be a vile, despicable, and irrational act. ... We're all sitting here expecting for him to do something that we all don't want him to do, and we would all think would be a terrible thing, and yet we expect it."

• The anxiety stems not from logic or law, but from the President’s pattern and rhetoric.

2. The Michael Cohen Raid & Prospects of "Flipping"

[06:10 – 08:06]

• The FBI's raid on Michael Cohen’s property has increased speculation: Will Cohen "flip" on Trump?

  • Wittes: Cohen’s true loyalty remains unknown; much depends on his psychological makeup and whether his public bravado is genuine or a signal for a pardon.

• On the Scooter Libby pardon as a message to potential witnesses:

  • Wittes: The pardon is likely an act of trolling directed at Comey, tying together narratives on the right that blame Comey for Libby’s prosecution.

  • Quote (Wittes, 08:26): "I think the fact that as Jim's book is coming out, the White House reminds everybody that the President has the pardon power by pardoning somebody who they think it will kind of get under Jim’s skin. I think it's a kind of form of trolling, to be honest."

3. Steve Bannon’s Proposal to Cripple the Mueller Probe

[09:58 – 13:16]

• Steve Bannon's plans to fire Rosenstein and retroactively assert executive privilege were described as “goofy” and legally incoherent.

• But the danger lies elsewhere:

  • Serious conversations about firing Rosenstein are happening, and his removal would be deeply concerning for the integrity of the Russia investigation.

  • Quote (Wittes, 10:40): "The idea that… everyone’s focused on the question of whether the President removes Bob Mueller... but they should also be focused on the protection of the deputy attorney general, who is... the acting attorney general for purposes of these investigations. And, you know, the President really seems to hate him and really wants to get rid of him. And that's a dangerous situation…"

4. James Comey’s Memoir: Bombshells and Backlash

[13:16 – 24:15]

• The release of Comey’s memoir, "A Higher Loyalty," comes with pointed criticisms of Trump, comparing his leadership to that of a mafia boss, and calling out his lack of ethics and institutional values.

  • Lithwick reads quoted passages:
    • “This president is unethical, untethered to the truth, untethered to institutional values…” (Lithwick, 13:46)
    • “Comey paints... a cocoon of alternative reality around the people in the room with him…” (Lithwick, 13:46)

• Wittes confirms that Comey’s anger and sense of dishonor regarding Trump is not new; these were “very clear” from private interactions long before the memoir's publication.

  • Quote (Wittes, 15:10): "Jim is very angry... He's a genuinely lovely person. And he is furious at what... the President has done to the organization and the people of the organization that he led."

• On whether Comey is “punching back” or telling the truth:

  • Wittes: It is not a cheap shot for Comey to tell his story. Someone needs to stand up for the institution of the FBI and the truth.
  • On rhetorical restraint: Wittes opposes responding to Trump’s insults in kind but supports assertively setting the record straight.

5. The Ethics and Risks of Engagement

[24:15 – 31:17]

• Lithwick and Wittes explore the dilemma: responding to Trump risks dignifying his provocations, but silence enables attacks on institutions.

  • Lithwick: "You engage with Trump at your peril and you don't engage with Trump at your peril, and everyone finds their lane in which to try to sort out that paradox." (28:29)

• Wittes emphasizes that silence from law enforcement officials, not just the judiciary, in response to attacks is "a much greater danger" than speaking out.

  • Quote (Wittes, 26:02): "The President of the United States said... police shouldn't be too gentle when they put [arrestees] in the car... and the Attorney General... had nothing to say... I think there is a much greater danger to senior law enforcement not speaking right now than... speaking."

6. The "Bear" Reaction: Is It Comey's Fault If the President Lashes Out?

[28:29 – 31:17]

• When Lithwick asks whether Comey's book is "blaming the victim" if Trump reacts destructively, Wittes responds with a broader point about responsibility in a democracy.

  • Quote (Wittes, 29:47): "The mere asking of that question shows that we are all like... spousal abuse victims. ... The responsibility for the exercise of the executive power is not in the hands of the former FBI director."

• The President bears responsibility for his own conduct, not those who criticize or expose him.

7. Propaganda, Partisanship, and Erosion of Truth

[31:17 – 36:25]

• The White House and RNC mount a campaign to discredit Comey, despite his Republican pedigree.

• Wittes underscores how propaganda and misinformation ("deliberate campaign of lies") spread by party and allied media pose an existential threat to law and truth.

  • Quote (Wittes, 32:10): "Propaganda works... a major organ of our political life is on a deliberate campaign of lies and... associated media entities are devoted to amplifying those lies. And... it's not just Jim, [but] the transformation of Bob Mueller into... the head of a criminal enterprise [by Fox News]."

• Lithwick connects the attack on truth to the law’s dependence on honest goodwill and objective facts. She describes the danger when truth becomes unknowable in the public sphere.

8. Firing Rosenstein: Legal vs. Political Crisis

[36:25 – 42:14]

• Wittes and Lithwick agree that firing Rosenstein, like the Merrick Garland nomination debacle, is ultimately a political and moral crisis, not a legal one.

  • Wittes: There will be no effective legal recourse; the critical response must be political—by Congress, by elections, and by mass protest.
  • Quote (Wittes, 38:25): "This is not... a fundamentally legal problem; it is fundamentally a moral and political problem. ... The bottom line is if the President fires Rod Rosenstein or Bob Mueller and there is not a devastating political consequence for that, then that is a way of saying in our political system, it is okay to engage with federal law enforcement on an openly corrupt basis. And I don’t accept that."

• Congress is failing to check the President; if the public doesn't respond at the ballot or in protest, the message is that such corruption is acceptable.

Notable Quotes

• On the looming sense of crisis:

  • Lithwick (03:17): "It doesn't feel like it's an exaggeration to say that we may be quickly getting involved in a slow motion constitutional crisis."

• On firing Rosenstein:

  • Wittes (05:17): "Firing Rod Rosenstein would be a vile, despicable, and irrational act."

• On propaganda’s corrosive effect:

  • Wittes (33:09): "Propaganda works. ... It is completely silly. It is undignified."

• On the law and truth:

  • Lithwick (36:25): "The dividing line has not been ideological as much as truth based and fact based. ... The law... is so completely and profoundly shaped by presumptions of truth and of good faith."

• On the failure of legal remedies:

  • Wittes (40:25): "The courts will not do anything; they can’t. ... The much more immediate question is, if [the firing] happens, will people make clear that this is not okay? That is fundamentally not a legal issue. It’s... a political question, and it’s a moral and spiritual question."

Timestamps of Key Segments

• Introduction & theme of anxiety: 00:53 – 04:08
• Rosenstein’s status and why he hasn’t been fired: 04:49 – 06:10
• Cohen raid, flipping, and the Scooter Libby pardon: 06:10 – 09:58
• Decoding Bannon’s proposal and Rosenstein’s vulnerability: 09:58 – 13:16
• Comey’s book & Wittes on Comey’s anger: 13:16 – 19:38
• Ethics of engagement; countering Trump’s attacks: 19:38 – 24:15
• Institutional silence vs. pushback: 24:15 – 28:29
• Responsibility for Trump’s reaction (“poking the bear”): 28:29 – 31:17
• Propaganda, partisanship, and the erosion of truth: 31:17 – 36:25
• Legal vs. political crisis: what if Rosenstein is fired?: 36:25 – 42:14

Summary Tone and Closing

The conversation is candid, at times grim, but deeply engaged with the urgent questions of institutional integrity, individual responsibility, and the limits of legal remedy in the face of potential constitutional crisis. Both Lithwick and Wittes maintain the tone of legal seriousness, with flashes of humor and exasperation, reflecting both their expertise and their concern for the rule of law.

Recommended for listeners interested in:

• The intersection of law, politics, and the Trump presidency
• The Mueller investigation and DOJ independence
• The ethics of institutional and personal response to political attacks
• The limits of legal remedies vs. the necessity for political engagement and protest