← On with Kara Swisher
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- [00:01]
A
This is like, not a PG podcast, right, Kara? No. You're not a PG person.
- [00:05]
B
I've never been a PG person.
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A
It's on.
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B
Hi, everyone from New York Magazine and the Vox Media Podcast Network. This is on with Kara Swisher. And I'm Kara Swisher. The Trump administration has been on an indictment spree recently. So far, there have been cases launched against former FBI Director James Comey, New York Attorney General Letitia James, former National Security Advisor John Bolton, and it's safe to assume there will likely be more down the road. These indictments are coming directly or indirectly from Trump's Attorney General Pam Bondi, who has made it clear that she has President Trump's political enemies in her crosshairs. It's a huge departure from the olden times, way back last year, when investigations that could have been perceived as being politically motivated would have been typically outsourced by the Department of Justice to special counsels, independent investigators, ideally from outside the government, who had the freedom to unearth the dirtiest dirt in the executive branch without fear or favor. My guest today, CNN senior legal analyst and bestselling author Ellie Hoenig, has written all about them in his latest book, when youn Come at the inside DOJ's pursuit of the President From Nixon to Trump. I wanted to talk to Honig about the special counsel investigations that passed, the impacts they've had, and how they compare to what's happening in the DOJ right now. I also want to hear his thoughts on how to fix the system, indeed, if it is fixable at all. Our expert question comes from a woman whose life was directly impacted by an independent counsel investigation. Anti bullying activist, author, producer, and now podcaster, Monica Lewinsky. Some special counselors have been national heroes, at least for a while. Some have become villains. That's you, Ken Starr. But they've all tried to ensure that no one, not even the man who would like to be king, is above the law. Stay with us. Support for this show comes from smartsheet. Your team is innovative. Your team is ready to achieve the impossible. Innovative teams use Smartsheet to defy expectations, spur growth, and make the impossible possible. Smartsheet is the work management platform that allows teams to automate workflows and seamlessly adapt as their work evolves. Whether you're managing projects or scaling operations, Smartsheet gives you the tools to cut through chaos and reach your team's full potential. With Smartsheet, the extraordinary is just another day at work. Smartsheet, work with flow. See how Smartsheet can transform the way you work@smartsheet.com that's smartsheet.com support for this.
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C
Show comes from the Economists Sometimes knowing how the news gets reported is as important as knowing the news itself. Insider is a brand new video offering from the Economist that lets you feel like a fly on the wall of their editorial meetings. With Insider you can get direct access to the internal debates that shape how the Economist makes sense of an increasingly complex and turbulent world. Hear trusted voices debate the biggest global issues with Insider free at launch for all subscribers to the Economist. Learn more@exter.com Insider.
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Support for this show comes from Strawberry Me. Be honest. Are you happy with your job or are you stuck in one you've outgrown or never wanted in the first place? Sure, you can probably list the reasons for staying, but are they actually just excuses for not leaving? Let a career coach from Strawberry Me help you get unstuck. Discover the benefits of having a dedicated career coach in your corner. Go to Strawberry Me Unstuck to claim a special offer.
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A
It is open.
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B
Ellie, thanks for coming on on.
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A
I'm glad to be with you, Kara. Really. I think this book is like you are the perfect audience for this. Someone who gives a crap about this and understands it.
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B
Right.
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A
And is not a lawyer. I wrote it specifically for non lawyers.
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B
Yes, I know. It's an easy and funny read. You're a very good writer.
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A
Thank you.
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B
So in the introduction to your book when youn Come at the King, which is about, I would say, special counsel, special prosecutors.
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A
Yeah. The names have change over history. Right.
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B
But special prosecutors, people know them. As you write, a nation reveals much about itself by how it holds accountable its most powerful leaders when it suspects they've done wrong. Based on that maxim, what's the US revealing about itself at the moment?
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A
We're revealing a major vulnerability and this ends up being one of the theses of the book itself. You know, what I do in the book is I go back and talk to people who are involved in these cases from Watergate on through the Jack Smith investigation of Donald Trump. That's a 50 year period. And I argue at the end of the book that what's happening right now, what Donald Trump is doing in 1.0, is fundamentally different, like a break in the historical line from anything we've seen up until now. And by the way, I include in that Trump 1.0, which was very different, not great, but different in important ways from what's happening right now. I think this is the question that we are asking ourselves. If we Have a president who A, cannot be held accountable, and B, can use the power of the Justice Department to go after his political enemies. That leaves us in a very dangerous place. And I sort of wind up with a prescription and a plea to future presidents.
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B
You know, that was always the problem for before. We could do it.
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A
Right.
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B
We could do it. We just didn't.
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A
Right.
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B
The way it was created.
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A
I mean, that's a really important point. You know, you will hear people like me who worked at the Justice Department always talking about the independent doj. But you know, if you dig down, there's nothing in the Constitution that says there shall be a Justice Department and it shall be independent. There's no law that says that. It's just the result of decades, centuries really, of good government and sound practice norms, all those things that are being trampled now.
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B
Yeah. So let's talk very briefly about the history of this. Like you take a bunch of. And even going back to a way long time like Jefferson. Right. Like in terms of weaponizing the Justice Department or a version of it.
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A
So think of it as three sort of historical eras from everything from Ulysses S. Grant, who was really the first president to appoint any outside prosecutor on a whiskey distillery kickback scheme. Up until the end of Watergate. We had no rules. Even Watergate, and I quote some people who are involved in that case, they said we were making it up as we went along. We were ad libbing it. John Dean, who you and I both know, said it was all ad libbed. Right after Watergate, Congress passed a law that was signed in 78 by Jimmy Carter, which gave us the independent counsel.
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B
That's because of Nixon.
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A
Because of Nixon.
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C
Talk about with Grant.
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B
Grant was the first to do it because a general was taken whiskey kickbacks, essentially.
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A
Right, right, exactly.
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B
And he was a friend, an ally of Grant.
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A
Yeah. So basically a guy who was very close to Grant was taking kickbacks from whiskey distillers in the Missouri region. Grant recognized because of the political pressure, the media pressure. Oh, crap. I need the appearance at least of. Of an independent outsider. He appoints an outsider. And what I love about the story is you could almost substitute in the name of any president from Grant up through Biden, and it would make sense. It was. I mean, I'll. I'll summarize it. Basically, the independent prosecutor started indicting low level people and he started making cases. But when he got a little too close to the inner circle, Grant tries to shut it down. He tries to have a military tribunal take over the media starts Attacking Grant. Grant starts saying, I'm being attacked by the media. Grant comes up with this pretext. He fires the prosecutor. A new guy comes in, and he falls short. So it's like, you know, echoes of that have been sounding for centuries.
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B
Yeah, right. When it gets close, because it was. This was someone who was a close aide, the guy named Babcock.
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A
Orville Babcock. You got it. Yeah. Everyone was a general because.
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B
And they all were very corrupt. Right. And because they were general. Because of civil war, obviously. So then it was sort of ad hoc going through it because there's been prosecutors. During the sedition trial, for example, they had the attorney general relieved him because it was getting too close to power. This happened many times, but Nixon really pushed the boundaries by firing Archibald Cox.
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A
He did. So, you know, it was actually used to be presidents who appointed these prosecutors. And then under Nixon, you know, the moment of truth there is when. So Archibald Cox gets appointed. And Archibald Cox is.
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B
By Nixon.
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A
By Nixon, yeah. Archibald Cox is this sort of like, patrician Harvard Law professor, wore bow ties. Everyone sort of reveres the guy. And the Saturday Night Massacre was when they were getting too close. And Nixon decides, I have to kneecap this thing. He orders the firing of Cox. The AG Elliot Richardson and the Deputy AG William Ruckelshaus, refuse. So they resign. And then Robert Bork comes in, and he becomes an important figure later, and he fires Cox. So you end up with the independent counsel, and the AG and the Deputy AG are all gone. And in the book, one of my favorite moments is I interview Jill Wine banks, who was 30 at the time, and Jim Corals, who was 26 at the time. They were the kids running the prosecution. And now they're. You know, you can do the math on what they are now, how old they are now. But they have this amazing moment that I love, where they come in the Sunday morning after the firing. They don't know what's happened to them. They. The New York Times reported that they had all been fired, but it was wrong. And they're sitting there on the floor, Jill says, because the office was siphoned off with police, police tape. And Archie Cox, they let him back in, I guess, to clean out his. Can you imagine today? You'd never be allowed back in. And he comes in and he says to the young prosecutors, you do your job. Do not give him Nixon what he wants. And in part because of Bork, who is, I think, wrongly cast as the villain because of Bork's pressure, he insists we need a new prosecutor. Nixon relents, they get Leon Jaworski, and that ultimately leads to the subpoena, the Supreme Court case, and the resignation.
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B
Right. And Jill Winebacks is the one who did the interview with Rosemary woods about the. The tape thing. Just for people who don't know, she's amazing. So Watergate led to an overhaul of the system because of the abuses, which were horrifying. I mean, you had the Attorney General resigning, and that was a big moment for Elliot Richardson and William Ruckelhaus and a big moment for Bork. I think it prevented him from getting to be one of the reasons of not getting on the Supreme Court, because he looked like the villain in it. So Congress passed the Independent Counsel act in 1978, which laid out a formal process to guide these special prosecutors.
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A
Right.
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B
The act expired in 1999. But even before then, there was debate around these independent counsels. Walk us through the constitutional arguments for against the special counsel, what you call the natural tension inherent in any special counsel investigation of the powerful. In this case, the President.
- [10:33]
A
Yeah. And this has been litigated, including up to the Supreme Court in with the Independent Counsel Act. So the tension is, on the one hand, you obviously want someone who's independent. That's the whole point of bringing in an outsider. You want someone who can do these cases fairly and without thinking about, am I going to please someone, am I going to harm someone? So independence. But on the other hand, you want accountability. Right. You don't want somebody who you're giving this enormous prosecutorial power to, who can run mad and sort of expand the boundaries with no consequence. There's a famous case from 1988 where they challenged that old law, the constitutionality. Now, the Supreme Court said it is constitutional. The one dissenter was Antonin Scalia. Even Rehnquist said it was. It was okay. The idea is basically you're creating a prosecutor with runaway power who is going to basically have blinders on and, you know, go after this one designated target without any real political accountability. So there's always that tension, and we see that to this day. Unfortunately, we didn't get to see the cases play out. One of them was happening in the Trump case, but then he won and everything got dismissed, and we never even got to the appeals court.
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B
These prosecutors have always been controversial, whether any. Any of them that you write about here, because the partisanship has increased. Although during the Biden administration, there was one for Tunter, there was one for Biden himself, there was two for Trump. Has it cheapened it for it to be Used so heavily as, as a way to get, you know, it's almost a get out of jail free card by saying we're going to get this guy and then they never do anything.
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A
Right. Look, I agree with you. I do think it's been cheapened. I think if you look at the history of the modern regulations, Right. So they were adopted in 99 when that law was, both parties agreed. This law is done. And largely as a result of everyone hated what happened with Ken Starr and Clinton, both sides. So they let the law die. In 99. We passed the regulations, which are still on the books. But here we are 26 years in, we've only had six appointments under these regulations. One of them was back the Scooter Libby. We'll talk about this with Pat Fitzgerald back in 2003. Four or five.
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B
Five.
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A
But then we did, we didn't have any of them. But from Mueller on we had five.
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B
Right.
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A
We had Mueller, we had Durham, the investigate the investigators guy, as you say. We had the Joe Biden investigation, the Hunter Biden investigation and the Trump investigation. And I think two of those in particular, I argue in the book were completely inappropriate and to use your phrase, Kara, cheapened this institution. The Durham case was ridiculous.
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B
It was a, this is investigating the investigators. Right.
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A
Looking at it now, it's almost like a brisk warm up for what we're seeing now. Right. Like they brought in this guy to try to pick apart the Mueller investigation. He spends four years and it's, it's a complete disaster. And I think the Hunter Biden special counsel appointment was ridiculous. I interviewed Hunter's lawyer, Abby Lowell, who actually now represents Letitia James and John Bolton. All of this stuff comes full circle. And I think both of those appointments were inappropriate. But as you say, you know, Joe Biden has an interesting record here because he inherits Durham. He couldn't have wanted Durham. He allows, I mean, he didn't explicitly greenlight it, but he permitted there to be appointments of special counsel to investigate Trump, Biden himself and Biden's son. So that's historically different. I mean, it's almost the opposite of what we're seeing now from Trump.
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B
Right, right. So let's back up a bit because speaking of Ken Starr and this is in this area, we get an expert outside question.
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C
Here's yours.
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B
It's a two parter. It comes from someone who had extensive experience with Ken Starr in the 1990s.
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A
Okay.
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D
Hi, I am Monica Lewinsky.
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B
Oh, thank you.
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D
But first, Ellie, I just want to thank you for being so Respectful of me in the chapter on the Star Report in your book. I really appreciate. I have a couple questions, even though I think it's only supposed to be one. So the first one is around you talk about this in your book. And Ken Starr lied under oath before Congress. He said that they did not ask me to wear a wire on January 16 in the Sting operation. And David Kendall very expertly cut to the truth with a lot of documentation that they had. So what consequences should Ken Starr have faced for having lied under oath to Congress, especially given the nature of what he was investigating? That perjury was part of that.
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B
Okay.
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D
And then my second question is around the printing of the Starr report. So I knew that the Government Printing Office had sold a bunch of copies, and I was essentially astounded to read in your book that there had been a minimum of 1.5 million copies of the Starr report sold, and all these publishers were selling something they didn't actually.
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B
Have to pay for.
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D
And because the Starr report is made up of a lot of the facts were compelled via testimony or compelled with immunity, those different things. So not only myself, other people, too, but I'm thinking about myself in particular. What kind of safeguards could be put in place for the future for people who kind of intellectual property is being used when it was taken for under oath or legal reasons. So are there any safeguards that could have been put in place or could be put in place for the future so that people can't make money off of a government report like that?
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B
Thanks.
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D
Bye.
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B
I thought I'd get a good report for.
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C
Wow.
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D
Yeah.
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A
Oh, my goodness.
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B
I know.
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A
Did you see my face when she popped up?
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B
Yes, I did. That's why we did it. So talk about the first one Ken Starr lied about. And of course, she had a lot of experience with special prosecutors.
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A
Yeah. So first of all, let me just say it really. I am thrilled to hear Monica Lewinsky say that she's treated fairly and respectfully in this book. I was very cognizant of that. And I think when you look back and, Carrie, you and I are about the same age. I mean, the way she was treated by almost all parties, media included, and Clinton's team included, and Starr was outrageous.
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B
Outrageous. And she's the only one who acted.
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A
Well, I would say she really is. She's the only. Almost the only person who comes out of this thing with her dignity intact. So I really appreciate that. So let me take her first question. So I interviewed for the book both David Kendall, who represented the Clintons Ken Starr passed away a few years ago, but his essentially number two is this guy named Saul Weisenberg. I also interviewed Lanny Brewer, who working in the White House, you know, defending the Clinton White House at the time. There's a moment when Ken Starr spends all day testifying in front of Congress. They're getting ready to impeach Bill Clinton and the Republicans run the House. So Star gets a two hour opening and it's all day long and they're, you know, the Republicans are fluffing him up and the Democrats are trying to tear him down. And finally at the end of the day, Clinton's lawyer, David Kendall gets a chance to cross examine essentially Ken Starr. And one of the questions Kendall asks is essentially you tried to get Monica Lewinsky to wear a wire and record the president. And Starr stammers around. You can watch, it's on YouTube. Star sort of stammers around and denies it. And then Kendall, as Monica correctly refers to Kendall's got the goods on him. He's got both a 3 FBI 302, which is a report written by the FBI like under Starr's own team, and grand jury testimony from Monica and others where they did try to get Monica to do exactly that. She asks, what could the consequences be for Starr? I mean, look, if the political wins aligned, he could have been. We just saw Jim Comey charged for lying to Congress in what I think is sort of a bogus case. But it would have been up to and including that. I think the long term consequence for Ken Starr is how poorly he comes off in historical memory. And look, he was controversial at the time, but even his own. And I'll get this actually goes to Monica's second question. Even members of his own team have since raised serious questions about the way he did it. And I think Ken Starr and I try to give him a fair shake. I do give him, I think, a fair shake in the book, but comes out as the poster child essentially for a runaway independent prosecutor. And all the reasons we don't want an independent prosecutor. Right. So that's number one to Monica's second question. There's a funny moment I'm trying to explain to people what a big cultural moment. The Star and Carrie, you're, you know, you're a tech reporter. It's essentially the first moment when the Internet almost crashed. Right.
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B
In 1998 when everyone was downloading it.
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A
Yeah, right. I mean, and it's funny to get the penis information.
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B
I was at the Washington Post.
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A
Oh, there's, there's more than Penis information.
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B
Yeah, I know, but that was part of it. The left.
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A
Well, I'll tell you something about that in a second. But I mean, sadly, this will make you sad. At one point I said Borders sold out of the book. You know, the book. And my editors said, you have to drop a parenthetical, explaining that Borders was a major national. I mean, come on. But you do.
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B
I mean, it got run over by the Internet. That's what they did.
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A
Yeah. You know, so the report, I mean, to Monica's question, there's really no way that you can sue to get damages for a government document. You know, if you testify in Congress or a grand jury, it's public property. But she raises some really important points. One, these reports have become ridiculous. I mean, Starr started it with his 400 page, you know, Harlequin romance novel. And now you see. And by the way, I quote some of the lawyers and everyone from Trump's team to Biden's team to Hunter Biden's team agrees. I think it was Bob Bauer who represented Joe Biden, said, why does every one of these reports have to be a 300 page novella? And he's right. But the second point. So I interviewed Saul Weisenberg, who was the number two guy for Star, and I got him to admit two things that I thought were really historically interesting. One, there was a long dispute over whether Star's team was leaking. They furiously denied it. I asked Saul straight up, did you guys leak? And he said, oh, hell yes. And it made me crazy. Yeah, so that's number one. But number two, I said to him, do you think you went too far with this prurient sexual detail in the report? And at first he was a little. Well, you know, look, it was a perjury case, Ellie, you're a prosecutor. It mattered who touched who where. But I was ready and I said, okay, Saul. But there's two points in the report where you note that after he and Monica had had their interaction, the President masturbated into the Oval Office. Private sync. Like, what did that have anything to do with perjury? Like, nobody, you know, there was no two way touching there anyway. Yeah, that may have gone too far. I mean, he said that in the book. He admits. Yeah, that. And I think it's important that we finally have somebody from Ken Starr's team acknowledging that they went too far. And the damage was certainly to. To Monica, of course, but also to the. Just the institution of independent counsel. I mean, people still use that. Oh, don't turn it into a Star Report, Right.
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B
And this is why they changed the rules. The first special counsel after the Star report was Pat Fitzgerald investigating the leak of CIA operative Valerie Plame. Talk about what changed after that.
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A
So if we go back to 99. So this law that that star was operating under, it was coming up for renewal every five or ten years. Fun fact. When Clinton renewed it for the last 94, George H.W. bush, who Clinton had just beaten two years before, advised him, like, just in a sense of presidential collegiality. You don't want to sign this thing like, it's a mess. And Clinton felt like he had to. And sure enough, where does it lead? 99 comes around bipartisan. Bob Dole, George Mitchell, everyone agrees this thing needs to die. They replace it not with a law, but with a set of regulations written by doj, which essentially sort of streamline the process. But they give the new. As we call it, special counsel a lot more independence. Really, the first one of those cases, okay, Valerie Plain was married to a guy named Joe Wilson. Joe Wilson goes to Africa and writes an editorial that basically says the premises you all have been given for the Iraq war, especially the uranium yellow cake that, you know, that Saddam Hussein is close to getting a nuclear weapon, are bs. And then shortly after that, the administration leaks the fact that Joe Wilson's wife, Valerie Plame, was a CIA operative, which is a. It's a crime if you do that intentionally. You can't out an undercover operative that kicks off an investigation of who leaked this. And George W. Bush was fully, at least publicly supportive of this. He said, if someone's leaking this, we need to know. I want that person prosecuted. I mean, again, imagine Trump saying that now about his own administration. So Jim Comey at the time was the deputy ag, the number two. The AG John Ashcroft recused himself. He said, I have a conflict of interest here. Comey takes over, and Comey picks Pat Fitzgerald, who. The two of them had grown up at the sdny. They were both there a few years before I arrived. Both of them were revered, legendary prosecutors. And Pat Fitzgerald then spends the next three or four years trying to dig in and figure out who leaked the identity of Valerie Plain. Did they do it with criminal intent? The crazy thing about it is he was very close to charging Karl Rove. I opened the chapter with that. He was razor's edge from charging Karl Rove for lying to the grand jury. Ends up charging Scooter Libby, who was basically Dick Cheney's chief of staff. And there's this whole dramatic trial where Libby gets convicted of lying to the FBI. But the only person who actually goes to prison in all this, Scooter Libby, ends up before he can serve his. He gets sentenced to three years, but Bush commutes it. Cheney wanted him to pardon it, but. But Bush refused. And they. That actually led to tension that still exists between the two of them. But then Trump in his first term pardons Libby altogether just because he wanted to, you know, poke people in the eye. The only person who goes to prison through all this is a reporter, a New York Times reporter named Judy Miller. She goes to max security prison for 85 days because she refused to give up her sources, one of whom was Scooter Libby, by the way. And I talked to Judy for the book about what it was like in prison and what she felt about the whole experience.
- [23:44]
B
We'll be back in a minute.
- [23:58]
C
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- [25:12]
B
Support for this show comes from Smartsheet. Did you know there is one human experience more universal than death and taxes? What do you think it is? Take a guess. Okay, I'll tell you. It's creativity.
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C
I know you're probably thinking, yeah, right.
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- [26:16]
C
With Kara Swisher comes from LinkedIn. As a small business owner, you don't have the luxury of clocking out early. Your business is on your mind 24 7. So when you're hiring, you need a partner that works just as hard as you do. That hiring partner is LinkedIn Jobs. When you clock out, LinkedIn clocks in. LinkedIn makes it easy to post your job for free, share it with your network, and get qualified candidates that you.
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B
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C
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B
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C
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- [27:23]
B
Lie the most famous investigators in recent history were all tied to Trump in some way. James Comey, Robert Mueller, and Jack Smith. Of course, James Comey was not a special counsel. He was FBI director. In the book, you explain why all three of them ultimately failed at their mission. Explain what each one got wrong and how the fallout actually helped and enabled Donald Trump.
- [27:46]
A
So Jim Comey, let's start with him, right? Jim Comey is the perfect example of why we need some rules. Because I get that it's look, it's an easy thing here to just go, ah, it's all broken and effort. And we don't need any of these, you know, special counsel rules. But if we look back to 2016. So this is when the Hillary Clinton email server investigation was happening. Right? Hillary Clinton had been Secretary of State in the Obama administration. Loretta lynch was the AG Now, I think Loretta lynch right away should have appointed special counsel. I mean, you're investigating the person who's about to be the Democratic nominee, has worked in this cabinet. But lynch doesn't do that. That. Then lynch has her tarmac conversation with Bill Clinton. They both happen to be at the Phoenix airport. Clinton gets on Loretta Lynch's plane. They talk probably about nothing. They both say it was about nothing. But lynch herself said that cast a shadow. That's Loretta Lynch's word over the case. At that point, Loretta lynch should have recused herself. Sally Yates was the Deputy AG more than competent. Or she should have appointed special counsel. Instead. What Loretta lynch does is say, I'm not going to remove myself from the case, but I'm going to defer to the FBI. I'm going to do whatever they say. Who's the head of the FBI at the time? Jim Comey. And the guy runs wild. The guy makes it all up as he goes along. Look, he's under both Loretta lynch and Sally Yates on the DOJ Org chart, but he basically ignores them both, does his own thing, undermines them, holds a press conference. Two of them. You know, one press conference, one letter, but makes two big announcements right before the 2016 election that Hillary Clinton was wildly reckless and all that. And then, then he reopens the case 11 days before the election. And he has since. Comey has since been harshly criticized, not just by the Justice Department inspector general, by ags, Democrats and Republicans alike. Eric Holder. Not in my book. I quote it from a report says basically Comey completely violated the rules and he did everything wrong. And, you know, did that flip the election. I actually dig into this a little in the book. The short answer is we'll never know for sure, but probably he. Probably. And look, there's a moment, Carol, that I quote in the book where Hillary is being interviewed by Kaitlan Collins on CNN last year, like, you know, a few weeks before the election, and Caitlin asks Hillary Clinton, do you. How do you feel about Kamala Harris's chances? And Hillary's first words were, well, at least she doesn't have Jim Comey waiting to jump out and kneecap her.
- [29:57]
B
Right?
- [29:57]
A
So that's an important lesson, I think, from, from Jim Comey. And you know, again, the charges against him now are a separate thing, but.
- [30:03]
B
His history, we'll get to that in a second. And then Mueller.
- [30:05]
A
So Mueller. Look, I think the thing that people remember most about Mueller is that he didn't say his conclusion. Right. He said, no, there's no, there's no evidence of a criminal conspiracy with Russia. It doesn't mean people on his team didn't. I mean, they certainly tried, but, you know, no evidence of an actual conspiracy. But then on obstruction of justice, Mueller gave us this whole, like, I can't say, but I would. But you remember this, right? The whole double speak. And I talked to several members of Mueller's team who said, basically, look, we support ultimately what he did. We understand, we think he was acting out of principle, but is there a fair argument that maybe he could have done it differently? Sure. One of them said to me something like, did I have daydreams about, like going down there and calling a press conference just to say, of course we say he could obstruct a justice. Sure, but we didn't ever do it. But you know, another interesting point they made is, do you remember the whole cartoonization of Mueller? Right. All the T shirts and the mugs and the action figures, they hated that. The members on his team said that was everything that Bob Mueller is not. He is not a self promoter. He did not see himself as some avenger of, of lefty fantasies. He saw himself as a guy whose job was to do the job. And he said, by the way, it fueled Trump. They said, you know, it fueled Trump's paranoid theories about this guy's out to get me. So there's a lot of interesting sort of reflection back on that now from both sides.
- [31:23]
B
Again, you write that he could and should have explicitly stated his prosecutorial conclusion, even with respect to a sitting president who could not be indicted. He should have done that.
- [31:31]
A
Yeah. I mean, that was the whole big controversy. Right, because Mueller gives us the whole wishy washy. Now, look, he could not have indicted Trump at the time because Trump was the president. That's longstanding DOJ policy. Also subject to an interesting debate, but it was the policy. But what he clearly could have done, and I went back and talked to one of the guys who wrote the regulations, is said, while I cannot indict the president because he's a sitting president under long standing DOJ policy, I do find that the evidence would be sufficient to support an indictment here and maybe even say, I recommend that when he's out there should be an indictment.
- [32:01]
B
Just the way her said, I don't. Yeah, he came to a conclusion about Biden's age.
- [32:05]
A
Her came to a negative conclusion. Right. But, but yeah, yeah, but the question is, what if there's a yes, it should be indicted. But her could have. And I, you know, from talking to.
- [32:13]
B
People, this is what Biden's documents.
- [32:15]
A
If her had concluded that Biden had committed a crime, he would have said so, right? I mean, I have that from the reporting in the book. And I went back to one of the guys, there was eight or nine people on the team who wrote the special counsel regulations. By the way, Chief Justice Roberts was one of those eight or nine people too. I couldn't get to him. But I talked to another person who wrote it and he said, of course we meant that you had to say so. I mean, I mean the regulations actually say, right, the special counsel must state his prosecution or declination decisions.
- [32:41]
B
Or someone like Barr comes in and says so, says what it is.
- [32:44]
A
Well, that's what happened. Right. Mueller left a vacuum and Barr filled it.
- [32:47]
B
Right.
- [32:47]
A
And then Jack Smith looked at the fundamental problem for Jack Smith. The first line of the Jack Smith chapter is, Jack Smith never had a chance. Because I think you and I have talked about this care. Merrick Garland waited two years before he appointed Jack Smith. And when Jack Smith gets appointed November of 22. So I said at the time, I said on CNN, I wrote in my last book, there's no physical way Jack Smith is gonna be able to get these cases investigated, charged, get through motions which gonna include immunity in the Supreme Court and get these cases tried before November 2024. And sure enough, that's how it played out.
- [33:18]
B
That's exactly what played out. Now, very briefly, in a way, the investigations of all these three were defined by the ags. They were, as you mentioned, Loretta lynch for Comey, also Jeff Sessions, Rodney Rosenstein and then Bill Barr for Mueller and then Merrick Garland for Smith. Talk very briefly about the influence of. Lack of influence of the AG and the impact on the investigation.
- [33:39]
A
You know, it's interesting because different AGs have taken different approaches. Some AGs have said, I want nothing to do with this Comey, for example, with Fitzgerald. I mean, a member of Fitzgerald's team said, we never heard anything from the guy. I mean, and that's, I would argue that's how it should be. The point is I'm empowering iag. I'm empowering you, special counsel. You. I mean, there's still some reporting, but you do your own thing.
- [33:59]
B
In the history, they have taken apart a special counsels or versions.
- [34:02]
A
Exactly. Rod Rosenstein, who I talked to for the book and the Mueller team confirmed this. They would meet every two weeks and basically brief him on the big points of the investigation. They felt like, you know, he had to deal with the White House, he had to deal with Congress, and they couldn't have him totally blind to all that was happening. Garland was really more of the comey model of very hands off. He led, let Jack Smith run almost completely on his own. So, you know, I think.
- [34:26]
B
What about Bill Barr?
- [34:27]
A
Bill Barr, Bill Barr, you know, Bill Barr, when he came in, Mueller was already in place. But what Bill Barr did is he. And this is the subject really my first book summary. Yeah, he completely distorted Mueller's report. By the time Mueller's report comes out, Bill Barr's in. And Bill Barr, it's outrageous. I mean, you know, members of Mueller's team completely agree. First, you remember, a month passed. So Barr gets the Mueller report, but we don't see it for a month. In the meantime, Barr issues this four page letter where he completely distorts the findings completely, you know, defends Trump and then has a press conference about it, how Trump did nothing wrong. And then a month later the report comes out and we're all like, holy crap. But by then, like public opinion had already sort of calcified around it. So that's Bill Barr's.
- [35:09]
B
Bill Barr took the bull by the horns and Merrick Garland did not.
- [35:13]
A
Yeah, right, right. I think Merrick Garland took too long. Yeah, I mean, I think, I think people say, well, what should Merrick Garland have done? I say, day one or day 10 of being in office in early 2021, obviously you're going to need a special counsel. January six has already happened. He didn't know about classified documents yet. In fairness, that didn't happen till later. But of course you were going to need to do a criminal investigation of Jan.6. And of course it was going to be a conflict. This is the guy who Biden just beat and was probably going to run again. So, like, but, but Garland, I theorize in the book, he just didn't want that fight. He was hoping it would slide away the same way Mueller slid away. He'd never have to wrestle with that messy issue. But it didn't end up happening. And he realized at a certain point he had to act, but it was too late.
- [35:53]
B
So now Smith, of course, is under scrutiny by Trump. He recently said it was Ludicrous to say that his investigation was political. You said it was clearly political based in part of what he was put in place and the speed at which he tried to finish the investigation. You write that Smith was disingenuous in his attempt to act like wasn't clearly trying to get to trial before the election. Instead, he should have been forthcoming about his attempts to get the case done before election. What do you. What would that have looked like? And why do you think that would have made a difference? Maybe it wouldn't have. Right, right.
- [36:19]
A
So look, to be clear, look, Jack Smith is now under criminal investigation. As much as I've been critical of some of Jack Smith's prosecutorial tactics, there is zero evidence that Jack Smith did anything criminal. And I think the investigation of him now is outrageous. Now, I am critical of Jack Smith because, of course, he was thinking about and trying to artificially accelerate the case before the 2024 election. Now, I wanna make a distinction. I'm not saying he's partisan. I'm not saying he was trying to help or hurt the Democrats or Republicans. I'm saying it was political. Though. If you're a prosecutor and you're saying I wanna basically do things completely different than how a normal case would be done in order to rush this case that is inherently political. I mean, I think. Caribbean. Tell me what you think. But like, anyone who witnessed the way Jack Smith was handling that case has to conclude he was aware of the election and trying to rush. But he tried to play this whole Boy Scout of, oh, no, no, I'm not. I mean, he. To be tried five months after the indictment. The average case in that district takes two years till trial. A case with 13 million documents, it would have been physically impossible. There's a million other examples, but.
- [37:21]
B
Right. Right now, he was one of only three who actually brought indictments. Of those three we just mentioned, both against Trump for his handling of the classified documents, as well as for attempts to influence the outcome of the 2020 election. In July 2024, Judge Eileen Cannon, who's got a sort of a mess. Well, she doesn't seem very smart. Made history, ruling the entire special counsel regulatory regime was unconst. She took a big bite there. She based her argument on Justin Antonin Scalia's great dissent from the. You mentioned the 1988 Supreme Court decision, Morrison v. Olson. Talk about the dissent and explain where we are now in terms of the constitutionality of special counsels.
- [38:01]
A
Where we are now is. Nobody knows. Because, I mean, Cannon, as you say, took a big swing. She said this whole thing is unconstitutional because you can't have someone exercising that kind of prosecutorial power unless they're nominated by the president and confirmed by the Senate. And she quoted at length the Scalia dissent that we talked about before. And by the way, a lot of people who've been investigated by special counsel have made that same argument and lost. Trump made it in the Mueller case and lost. Hunter Biden made it and lost. Cannon becomes the first judge ever to say, actually it is unconstitutional. What was going to happen was that would have been appealed to the Court of Appeals and almost certainly to the Supreme Court, and we would have got an answer. Instead, while the case was pending in the Court of Appeals before they ruled, Trump wins. Everything gets dismissed and thrown out, and.
- [38:45]
B
So it never gets broken.
- [38:46]
A
We don't know. Like, the only way we're ever going to find out is if there is a next. The next time someone will challenge it again. And.
- [38:52]
B
Right. And Cannon is thought to be a Trump acolyte and that she did it over to delay things. Correct. Although she may have had a point here. Right. We should get it up to the Supreme Court.
- [39:01]
A
Yeah. I mean, Cannon was very favorable for Trump at almost every turn. And it is an issue that obviously needs to be resolved by the Supreme Court. But we got, we got cut off midstream.
- [39:12]
B
All right, so now we're in Trump 2.0. It's not hard to see what's coming at the King means to current Attorney General Pam Bondi. She's launched this weaponization working group at the Department of Justice to go after officials who allegedly weaponize the legal system against President Trump, who she works for and not the American people, obviously. Here she is speaking to Sean Hannity on FOX a few weeks ago. Whether you're a former FBI director, whether you're a former head of an intel community, whether you are a current state or local elected official, whether you're a billionaire, funding organizations to try to keep Donald Trump out of office. Everything is on the table. We will investigate you and we will end the weaponization. She's so thirsty. Former. You don't have to say that. Former FBI Director James Comey, New York Attorney General Letitia James, former Trump National Security Adviser John Bolton have all been indicted. We're likely to see more. It seems clear they were ordered by Trump. He posted what he seems to be a private message to Banyan Truth Social, although I think they leaked it on purpose, calling for her to go after Comey. James, California Senator Adam Schiff. What do you make of these indictments in Bondi's statement that everything is on the table. And I know Bolton's indictment is different from the others, more serious, but talk about those ones that are pending right now.
- [40:29]
A
So what Pam Bondi is doing now is completely hypocritical and outrageous. I want to start with that. And completely different. Look, my first book was about Bill Barr. I mean, Bill Barr looks quaint compared to Pam Bondi. Two things. One, anything that might impact the administration negatively gets killed in the crib. I mean, look at the signal scandal, right? You remember this character, you know, with all those guys discussing a military attack, not only did she refuse to even open an investigation when precedent was, of course, you at least investigate. Three days in, she says, nothing to see here, no crime, and you should all be cheering about the military strike. Yeah. So that was, to me, was the tell. On the other hand, the irony, I guess, of calling this the weaponization Working Group when you're just over weaponizing it. So, look, I have been publicly critical in the book of Jim Comey and elsewhere, and I've been publicly critical of Letitia James. I thought her civil lawsuit against Trump was outrageous. It ended up getting largely vacated by a liberal court of appeals.
- [41:26]
B
The financials. Just the financials, not the conviction itself.
- [41:29]
A
Yeah, exactly. The prosecutions of. Of Letitia James and Jim Comey by the Justice Department are absolutely retributive. They're absolutely weaponization. They're completely inappropriate. And I think that one of two things is gonna happen in both of those cases. One, the judges. There's two different judges might well throw out these cases as vindictive or malicious prosecution if they can show this is being done for political reasons. Now, you can normally never show that because A, prosecutors don't do that crap, but B, because you don't put it in writing the way Trump has. So don't be surprised that if at some point in the next six weeks or so, one or both of those cases gets thrown out by a judge. I think that would be. And then what if the case gets thrown out? Yeah, then. Then DOJ will be able to appeal that dismissal, but I don't think they're going to succeed. And then if the case gets thrown out, that's. That's it. You know, Jim Comey and Letitia James, I think, have both done really, you know, bad, dangerous things in their careers as prosecutors or law enforcement agents. But that doesn't mean it's okay to charge. And this is my question. I've had this discussion on air with People who say, well, but, but Trump is just doing back to people what was done to him. But a 6 year old could understand two wrongs don't make a right. And where does it end? What does the next person do? What does 48 do? Now we're right.
- [42:44]
B
Right. And he's much more explicit in his. Which is why they'll get off. So what about Bolton?
- [42:49]
A
So Bolton I do see as different. And you know, this is part of the problem, Kara, where when you have an enemies list, if any of them get indicted, we're not gonna know is this one legit or not. Right. And that's Trump's fault. But the Bolton indictment does seem real. I mean, look, the reporting is, the wide reporting is that case either initiated or escalated during the Biden administration. So that's important to know. This wasn't like they came in and Trump came in and said, let's do something on Bolton. I'm sure, sure Trump was delighted, but it doesn't mean he started it. The allegations there are very serious. I mean, he was writing up over a thousand pages of specific notes of stuff he was learning from the highest levels of sensitivity as the nsa, as the National Security Advisor, emailing them, kerry, you love this over aol. You make fun of me for having a Yahoo account aol. At least I'm above Yahoo.
- [43:34]
B
I stand by that. I think you should be indicted for that. I think you should be prosecuted by Pam Bondi and Lindsey Halligan.
- [43:41]
A
I'll plead guilty to that.
- [43:43]
B
Neither of them knew how to turn on a computer. Go ahead.
- [43:45]
A
So he's aoling this incredibly sensitive information to two family members. The reporting, I think, is his wife and his daughter, all for use in his, in his stupid memoir. And, but you know, these are attack plans, these are missile launches.
- [43:59]
B
Yeah.
- [43:59]
A
And, and then the other thing that's really bad is at one point it got hacked. His AOL got hacked by Iran. I mean, that couldn't have been that hard. And then his team report, according to the indictment, his team reports the hack to the FBI, but leaves out the fact that he was using that email account to send classified stuff to outsiders. Now, his team contests all of this. Abbe Lowell, by the way. Anyway, Bolton's lawyer, Abby Lowell, speaks to me for the book about Hunter Biden. Abby also represents Letitia James and John Bolton and Lisa Cook, the Fed governor. This guy's like the busiest lawyer on the planet.
- [44:33]
B
He is. He's a character too.
- [44:35]
A
Yeah, he is.
- [44:35]
B
So last week, then, President Trump publicly gave out another list of people he'd like to see prosecuted, including former special counsel Jack Smith, who we just discussed who was investigating January 6th in the classified documents. Andrew Wiseman, a lead prosecutor for the investigation of the 2016 Trump campaign's potential ties to Russia, President Biden's Deputy Attorney General Lisa Monaco, and Senator Adam Schiff, who had pushed for Trump's impeachment in the House. It's obviously highly unusual for a sitting president to publicly call for retribution like this, but how do these very clear calls for prosecution affect the actual cases? And who else do you think could be next on the list? And who wants to be a special counsel if this is the case? Unless you're a complete idiot like Lindsey Halligan.
- [45:15]
A
Right. All retributive, by the way. Like zero basis to think any of these people that you just listed committed a crime. Important to know, by the way, this is another argument for why we need special counsel. They're not using special counsel. They're using whoever the hell they want and calling them weaponization. They're using Lindsey Halligan and Ed Martin and it's, there's no rules around it.
- [45:33]
B
Yeah, please explain who Ed Martin is, because he's Ed.
- [45:35]
A
Oh, gosh, Ed Martin is, is this guy who had never been a prosecutor. He was this, you know, over the top election denier. 2020 election denier, and just very aggressive Trump supporter. Trump tried to put him in as a high ranking DOJ official. Even Republicans in the Senate would not confirm him. So now him as this roving weaponization guy who's sort of pushing a lot of these cases. A complete charlatan, really. So now you have these cases, now what can be done about them? The reality is, by the way, I should tell you, I was speaking on the phone with a lawyer for one of these people that you just mentioned. And I said, he's, he can't charge this your client. Like there's no way. And this person goes, of course he's going to. What, are you nuts? I said, but I'm what? He goes, who cares? He's to going, going to. He's already done it. He's already done it with James and Comey. And so maybe. But the, the sad, the reality is people say, can't this be shut down? There's no way to go to a court and say this judge orders Pam Bondi to knock it off. Like all of it. Yeah, it's going to have to be case by case. But as we just discussed, Kara, all these people are going to have vindictive or selective prosecution and I actually want to see what happens if there's a string of 3, 4, 5, whatever cases that are rejected either by judges or juries for exactly these reasons. But it's gonna have to be case by case. They're all gonna have to duke it.
- [46:51]
B
Out, and they have to pay money and they've gotta spend time and they.
- [46:54]
A
Have to save tons of money. Yep, yep.
- [46:56]
B
So we've seen some. Many prosecutors who are very good at their jobs are horrified over this. They resigned. And also, hundreds of DOJ employees have also been fired, including agents who were part of the investigation into Trump's role in the January 6th attack. More than 280 former DOJ officials recently signed a letter saying, we believe it's our duty to sound the alarm about the administration's degradation of DOJ's VIT and its assault on public servants who do it. Do you expect public pushback from these possible, more, even more resignations at this point? Do rank and file prosecutors have a responsibility to say, this isn't what I signed up for? What happens here?
- [47:31]
A
Yes, I applaud the people who have resigned. I think they've done the right thing and the principled thing. You know, I'm always a little hesitant to say everyone should resign because it's hard. You know, you have people have kids and families and. And all that. Although if you leave doj, you're probably going to get paid way more at a firm. But let me put that aside. Yes, they've done the right. Yes, this should be a bright red flag. The fact that we've seen not just one or two are smattering, but dozens, hundreds, if you count the firings of people who've resigned for good reasons or been fired for bogus reasons out of principled objection. I mean, what is happening goes against every ideal. The reason you take the oath is to be a fair and impartial prosecutor. So, yes, I applaud them for that. Will it continue? I'm sure it will. I'm sure that if someone gets an order to indict Jack Smith and people look at that case and decide it's bs. Yes, yes. You will see more resignations, and people are coming forward slowly. You know, there was a guy in 60 minutes just the other night who was one of the people who objected to one of these prosecutions. I do fear, though, Kara, that it's becoming just background noise, that it's now no longer all that sensational to see somebody coming out and say, here's why I resigned for prison? I mean, we've Seen it?
- [48:37]
C
No.
- [48:37]
B
Archibald Cox. Right.
- [48:38]
A
It's no, Right, right, exactly.
- [48:39]
B
Elliot Richardson.
- [48:40]
A
Exactly. And you know, these people have made their points and they're well received and I applaud them, but I don't know that they're. It's not their fault, but I don't know that the needle's being moved. Look, there are a lot of people, let's keep in mind, Kara, a lot of people think this is great, what Trump's doing. A lot of people feel with some justification they overstated. But was Trump was targeted by some of these cases. The Alvin Bragg case I think was ridiculous. Letitia James lawsuit was ridiculous. But to say that this is an appropriate response leads us, leads us nowhere. Leads us to descending chaos.
- [49:12]
B
It's an over response. I mean, which of the cases against Trump did you, you think wasn't. Was the docum case correct?
- [49:18]
A
Is that I thought Trump should have been indicted federally for the documents case and federally for January six, broadly speaking, you know, trying to steal the 2020 election. Yeah, that's it. And I think it should have been done way earlier, like right away as we discussed earlier. Merrick Garland should have had someone on that from day one. I think the state cases were all unnecessary pylons, overkill, overdone. We oddly constructed and I think they were, look, it's, it's dangerous, I think when you have elected, elected state level AGs and DAs from 90% blue or red areas running for office saying vote for, think about it, justice. Flip the tables. Let's say someone was running for AG in Massachusetts and they said a Republican. Vote for me and I promise you I will nail Elizabeth Warren. I don't know how I'm going to dig through her financials. I'm going to find something on her. That's what Letitia James did.
- [50:04]
B
Well, like you said, if I have $30 million, I can find something.
- [50:06]
A
Someone said, yeah, I'd love that. Some witness said that directly to a special counsel in front of a jury. Anyway, you give me $30 million, I'll find something on you, sir. I love that line.
- [50:14]
B
Right. Which is true. Which is absolutely true. And people are worried about the weaponization. But Trump takes it, of course, to another level.
- [50:19]
A
And none of, none of that, that doesn't justify what he's doing now. That doesn't justify going on this prosecution binge of everyone who's ever upset me.
- [50:26]
B
Well, that's the hallmark. We'll be back in a minute.
- [50:46]
C
Support for this show comes from the Economist. The news never stops. If you've Ever wanted to know how the Economist decides how to cover the biggest stories shaping the world? Check out the Economist Insider Insider is a new premium video offering that provides unprecedented access to their journalists and senior editors. It lets you step inside the spirited discussions behind the economy, economists trusted reporting. You get direct access to debates that shape how the economists make sense of an increasingly complex and turbulent world. Two Insider episodes will be aired each week. One will be hosted by Editor in Chief Zanny Minton Beddoes, and the other will be led by the Economist's senior editors. Each episode will provide in depth discussions on geopolitics, economics, defense and technology. Thinksletter explores the news and trends shaping the world now and what comes next. You can expect interviews with world leaders, thinkers and policymakers, including prominent voices who debate the Economist's editorial positions. All this helps you gain clarity in a complex world because today, more than ever, the world needs constructive conversations about critical global issues. Free at launch to all subscribers of the Economist. Learn more@exter.com Insider.
- [51:59]
A
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- [52:58]
B
In the final chapter, as you noted, you lay out seven proposed reforms, including creating a new semi permanent special counsel position within the doj. Talk through them each briefly, each of them. And what's the biggest challenge in actually implementing them? Because there's no cooperation here. Except everyone's tired of this lawfare. I guess that's the term they use.
- [53:17]
A
There is no perfect system here. I don't purport someone said oh, his system has certain flaws of course, of course. Like we've been trying to do this for for hundreds of years, right? But I think there's ways we can improve what we have now and the core of it Is we need to create a semi permanent within the Justice Department special counsel's office that has a permanent staff support, that kind of thing, that has a multi pronged mission. That it's not just you go get the president, that's it, one on one. You know, you take away that sort of heat seeking missile element of it. Ideally Congress would pass a law saying this job is created, it needs to be presidentially nominated, Senate confirmed. That gives it that political legitimacy and accountability we were talking about before. That has problem over the years that has a set number of terms, so five years, 10 years. We have some examples of that. FBI Director, although Trump now fires them at will. But that. So the set number of years overlaps presidencies. It's not just you're serving coterminous with the President. I think the person needs to be given higher levels of protection against firing. You can set the level as high as you want. I think we need to weed out people who are political partisans from serving on that team. There have been examples of people who have political leaning things outside of work, but we can, you know, why, why would we need someone who's politically partizan when there's hundreds of people who are not, who can do this? So you know, if you think about it, it's sort of like the way we have inspectors general who have this independent room to operate within the different departments, but with prosecutorial authority and with meaningful political accountability.
- [54:43]
B
Not like internal affairs in a police department because those are usually widely hated, right? Aren't they?
- [54:49]
A
Yeah, I mean, I mean, you know, these people are not beloved either, right? These special counsel. Sometimes you have to do jobs that people don't love.
- [54:56]
B
And you noted that no one ever comes out well from a special counsel job, right?
- [55:00]
A
Exactly. I mean very few people. Someone, I think it's Rod Rosenstein says something like everyone goes into these cases with sterling reputations. Nobody comes out that way. Cuz look, you're going into a mud fight. I mean no matter what, right? No one's ever gonna just roll over and say, yeah, yeah, let me take a guilty plea here. It's very difficult. But I think the best we can do is to insulate this person, to give him or her free rein to do what he needs to do, but with some level of accountability to the political branches of government.
- [55:27]
B
Right. So you also highlight that despite Democrats calls to end the DoD policy against prosecuting a sitting president, they didn't make any moves during the Biden administration to change laws. Now there's Supreme Court immunity ruling. So that's done. If Democrats were to get control of the White House and Congress again, should they attempt to prosecute crimes committed by the Trump administration, There's a whole list of them. Pam Bonney would be on the top of that list, I would imagine. Going back to the first question, what we do to ensure how we can still hold leaders accountable when we suspect they've done wrong. And I'm sure there's plenty of emails and communications on all this that will be discovered.
- [56:02]
A
It's a great question I've actually not been asked yet. So should the next administration be looking at this current administration? My answer is yes, there should be scrutiny, but it needs to be done very carefully. We can't have a free for all like we had on Trump. Trump last time with state prosecutors throwing in RICO charges and Alvin Brad constructing this Frankenstein monster. What I would like to see done is appointment of a special counsel who takes a very careful look at the most obvious potentially criminal conduct of this administration looks at. You know, you need a person who has that level of credibility, who can do this in a way that's believable. You probably need a Republican to do it and somebody like not Mueller now, but, you know, but Mueller in his heyday and is very discerning about what's worth charging, what's worth having this fight and what's not. And, you know, it's important to know, and I say this all the time, just the fact that someone committed a crime, it doesn't mean now it must be prosecuted. You have to bring your prosecutorial discretion into play. And so is this going to cause more mayhem, more political, you know, chaos, or is this necessary? Those are very difficult decisions.
- [57:03]
B
Where would you point? I'd point to crypto, but go ahead. Where would you point for the most.
- [57:07]
A
Obvious examples of criminality? Gosh, yeah. I mean, I would. I'm trying to think of things that have been done in this administration. I mean, look, I certainly have questions about the Tom Holman $50,000 in a B.
- [57:20]
B
And he's small ball, right? He's just stupid.
- [57:22]
A
Yeah, he's small ball. I don't know. It's hard to say. You know, there's a lot of things I think Trump has done in this administration that I object to and think are corrupt or problematic. I'm not sure. I'm not sure I can point to something and say that right there is a crime. But, you know, we don't know everything.
- [57:36]
B
I'm going with crypto. That's what crypto. Okay, Crypto. So much There, there's.
- [57:40]
A
Yeah, it could be. There's, There's. Right. People have said there's, there's elements of bribery or kickbacks or whatever. But one of the bigger, big points that I make in the book is the rules are really important. We can't just sort of be glib about the rules, but the people ultimately matter more. We need people. A lot of this is just based on good faith and acting in compliance with our principles and sort of doing the right thing and like these cliche sounding things, but they matter. And I show in the book, throughout history, we have people who've done that and we have people who have not done that, and some of them have.
- [58:08]
B
Lost and some have won. That's the problem.
- [58:10]
A
Exactly.
- [58:11]
B
We didn't talk about other things, but if you look at all the various cases, whether they're the colleges suing Trump or the Epstein thing, there's so many different legal cases going on, or the firing of government employees, the illegality or doge, which to you sticks out. Which one of the ones do you focus on that you think is gonna be the most important things to focus on going forward?
- [58:32]
A
So, number one is what we already talked about, the political weaponization of prosecution. But let me move beyond that. I think the targeting of private, largely private entities for exercising First Amendment speech, the targeting of the university of law firms, to an extent of media companies. And that comes both through the executive order saying we're going to strip your funding and all this, and also through the approval of mergers that has to happen. Right. And I think what we're seeing is a steady but unmistakable effort to silence dissent. I mean, look, if you look at the Harvard case, it actually says one of the things that we order you to do with a letter says you have to go out and hire an independent office auditor who has to audit the ideological views of your entire student body and faculty.
- [59:17]
B
Yes.
- [59:18]
A
For correctness or whatever.
- [59:19]
B
I mean, seems problematic under the Constitution.
- [59:22]
A
This is nuts. And I will say every law firm and college that has sued, that has stood up and refused to settle and sued has won. Now, I understand these are largely private entities. Some of them are making. Bottom line, it's cheaper to pay $10 million to his charity or his library or whatever.
- [59:40]
B
Right. Like CBS or whoever.
- [59:41]
A
Yeah. Than to fight it in court. But, but I really applaud let. Especially on the colleges and law firms. I, I really applaud those who've stood up and fought because, you know, I, I did a thing, I did a, a bar conference and somebody said, yeah, but these are private profit driven entities, these law firms. And if they make. But I said, yeah, but we as lawyers are not making widgets here. We're not just factories. We, we are a profession that has a code of conduct and ethics. And if, if you're not willing and look, a lot of law firms have sold out, a lot of law firms settled to, I believe, what will be their long term shame. And those who've stood up, maybe they've lost clients, maybe their bottom line has suffered, but they've done the right thing. So to me that's, other than the prosecutions, the most important frontier.
- [60:23]
B
Very last question. Do you think if the Democrats get, as I said, get empowered, Trump will be the subject another round of what probably should have happened quicker? Do you think that he is vulnerable or is he too old? Is it too late? Disease. This is assuming the Democrats get enough power to do so.
- [60:44]
A
I think the ship has sailed on a prosecution of Donald Trump for the reasons you say. I mean, look, let's, let's see. It'll be 20, 29 when he leaves office. He'll be 83 years old. The first round of investigations and prosecutions essentially failed. I mean, and look, there was a reason I was a critic of this at the time. I don't have any particular love or hate for the guy. I really, I'm just, I'm outside the arena, I call it from the outside. And a lot of people were cheerleading those Trump prosecutions and making excuses for prosecutorial conduct that they knew better than that. They, as prosecutors would have never. And I refused to do that. And it off a lot of liberals who just wanted to get out the pom poms. But the reason for that was A, it was just, it was just some, some, not all, but some of that was wrong. B, it would backfire. And of course it backfired. It helped propel him politically. I think that's, that's undeniable. Some of these cases have failed. And I think now if we Fast forward to 29, what prosecutor is going to want to go and do this again? There's not going to be any political will or support for this. I doubt that. Even if. Name your person. Let's pick who's your Democrat of the, you know, Gavin Newsom wins or whoever. I doubt that he's going to want that. I doubt that his AG is going to want that. It's just going to be, the ship has sailed. But I think there's important historical lessons. But I certainly would not hold my breath waiting for A next United States v. Donald Trump indictment.
- [61:57]
B
Even if what's happening right now is absolutely legally corrupt at the Justice Department.
- [62:01]
A
I think that. I think so. I think unless he does something like January 6th or the classified documents which just hits you over the head and.
- [62:09]
B
Cannot be ignored, but the legal corruption at the Justice Department Department has to be shifted.
- [62:14]
A
The crazy thing is I don't know that that's actually criminal to say we're.
- [62:18]
B
Going to overlease and congressional changes to the rules. Correct.
- [62:22]
A
I do hope that the weaponization of DOJ that's happening right now causes serious backlash, political backlash, so that whoever take comes in next says similar to what happened after Watergate. Right. We need a whole new regime. We need to rethink this. We need laws, we need protections. We could be looking at a post Watergate 2.0.
- [62:38]
B
But what message does that send if this is a person who's violating a lot of things? I mean, January 6th alone, what message does that send? Or is it just about Donald Trump gets out of jams?
- [62:49]
A
You know, my second book was about all that. It's called Untouchable How Powerful People Get Away With It. And it goes to a point I make in this book that I think you opened with today, which is, you know, everyone's heard the axiom. A country says a lot about itself by how it treats its least powerful people, its most vulnerable people. There's a flip side of that. We say a lot about how we treat our most powerful people. I do think Trump in a way, is one of a kind. I do think he's gotten away with stuff way beyond what anyone else could ever get away with. But it's really hard. It's really hard. And I think you can see this through the history to meaningfully hold someone to account in a way that has some modicum of political and public support. So it's a very difficult challenge.
- [63:24]
B
It's a difficult challenge. But I always say to people when they get all upset about that is just because it seems like the wicked and criminal win. Just cause you don't know the end of the story yet.
- [63:34]
A
Maybe. Maybe. Listen, I make no predictions in this world anymore. Cause so many things that I said could never happen.
- [63:41]
B
I could have a longer story than that. I mean, beyond, beyond the grave story. Anyway, it's such a delight to talk to you and let's have you back to talk about sort of other current cases soon. Thank you, Ellie.
- [63:51]
A
Thank you so much. That means a lot.
- [63:57]
B
Today's show was produced by Christian Castor, Roselle, Kateri Yocum, Michelle Eloi, Megan Burney and Kalen Lynch. Nishat Kirwa is Vox Media's executive producer of podcasts. Special thanks to Corinne Ruff and Bradley Sylvester. Our engineers are Fernando Arruda and Rick Kwan and our theme music is by Trackademics. If you're already following the show, you are on Pam Blondie's list. If not, you have an AOL account. Go wherever you listen to podcasts, search for on with Kara Swisher and hit follow. Thanks for listening to on with Kara Swisher from Podium Media, New York Magazine, the Vox Media Podcast Network and us. We'll be back on Monday with more.
- [64:38]
A
Limu Emu and Doug. Here we have the Limu Emu in its natural habitat, helping people customize their car insurance and save hundreds with Liberty Mutual. Fascinating. It's accompanied by his natural ally, Doug. Limu is that guy with the binoculars watching us.
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B
Cut the camera.
- [64:59]
A
They see us. Only pay for what you need@libertymutual.com Liberty Liberty Liberty Liberty Liberty Savings Very unwritten by Liberty Mutual Insurance Company and affiliates. Excludes Massachusetts.