Speaker 1: Pushkin. Welcome back to Risky Business, a show about making
Speaker 1: better decisions. I'm Maria Kanikova.
Speaker 2: And I'm Nate Silver.
Speaker 1: So today on the show, we have a special guest
Speaker 1: for you, Ellie Honig, who is CNN's senior legal analyst,
Speaker 1: former federal prosecutor, author of two prior bestsellers, Hatchetman and Untouchable,
Speaker 1: and he has a new book coming out called When
Speaker 1: You've Come at the King.
Speaker 3: It was great.
Speaker 1: I really enjoyed it. Ellie and I actually first met
Speaker 1: many years ago when I was working on my book
Speaker 1: The Confidence Game about con artists, and we were introduced
Speaker 1: by his former BOSSU pret Berrara, and both of them
Speaker 1: were incredibly hopeful to me in yeah, getting the background
Speaker 1: for that, getting case information and basically taking down some
Speaker 1: of the con artists, some of the bad guys who
Speaker 1: I took down in my book. So it's uh, it's
Speaker 1: great to be uh to be here with you. Congratulations
Speaker 1: on the book which is out this week.
Speaker 3: Thank you, Thank you so Maria. You you know I
Speaker 3: had you on my podcast, if you remember, I did
Speaker 3: a mob podcast and I needed somebody to help me
Speaker 3: deep dive the psychology of what goes into a gangster.
Speaker 3: You had written about that for some magazine outlet and
Speaker 3: some outlet or other whatever it's called. And Nate, you
Speaker 3: are in the book, by the way, you are in
Speaker 3: this book.
Speaker 1: Nate, you're on page Nate, you're on page one fifty three.
Speaker 3: Pretty good. How long is this book?
Speaker 2: I mean, is it the first half?
Speaker 3: You're in exactly halftime.
Speaker 1: Yes, it's about three hundred pages long, so you're about
Speaker 1: le halfway through. On the Hillary Clinton emails and whether
Speaker 1: the cam An investigation ended up costing her the.
Speaker 3: Election, you got it. And and Nate you your conclusion
Speaker 3: I think was boiled down was basically probably. But we
Speaker 3: can't know for sure, right, we can't know for sure.
Speaker 3: I've blurred it all out of my head.
Speaker 1: But yeah, the book takes us through the history of
Speaker 1: I don't know what to call it, Special Counsel and
Speaker 1: dependent council. Depending on the point in time that we're
Speaker 1: talking about, it's called different things. But before we move forward,
Speaker 1: can you just define what this is what this office
Speaker 1: actually is, regardless of name.
Speaker 3: So it's changed a bit over the years, but currently
Speaker 3: we call it special Counsel and this is an official
Speaker 3: who can be appointed by the United States Attorney General
Speaker 3: in order to conduct a criminal investigation that would pose
Speaker 3: a conflict of interest for DOJ itself or other quote
Speaker 3: extraordinary circumstances. So conflict of interest would mean something like,
Speaker 3: we're investigating the president, who can hire and fire the
Speaker 3: attorney general. But also plenty of ags have pointed to
Speaker 3: extraordinary circumstances, which means essentially whatever the AG feels like me,
Speaker 3: and so there's definitely some wiggle room there. But it's
Speaker 3: a prosecutor within DJ appointed by the Attorney General for
Speaker 3: a specific high profile case.
Speaker 2: And by the way, I'm I'm going to represent that
Speaker 2: I'm guessing substantial minority, maybe majority, of a civil bulletin
Speaker 2: audience who thinks.
Speaker 3: All this legal stuff. They just don't really.
Speaker 2: Have the compartment for it in their brain, right. They
Speaker 2: like elections, they like strategy, they like maybe they like
Speaker 2: cultural fights. But the legal stuff. Yeah, so I'm gonna
Speaker 2: be the I'm gonna ask the dumb questions.
Speaker 3: Thank you for asking that. No, but listen, this book
Speaker 3: is No. I don't do legal ease, and if I do,
Speaker 3: I will explain it. But like, what drives this book
Speaker 3: is the stories. I mean, I interviewed thirty five thirty
Speaker 3: six people on record. By the way, nobody. I didn't
Speaker 3: allow anybody to be anonymous. People who from WA Aregate
Speaker 3: prosecutors up until Donald Trump and Jack Smith that case.
Speaker 3: I mean, I don't talk to Donald Trump and Jack Smith,
Speaker 3: but people lawyers on the case. So what really drives us.
Speaker 3: I love the stories, I love the drama of it.
Speaker 3: And what you see is it's so human, Like we
Speaker 3: look at the law as a set of written statutes
Speaker 3: and rules. But having been a lawyer and a prosecutor
Speaker 3: for fourteen years and having written this book, I guess
Speaker 3: one of the major themes is it's so much about
Speaker 3: the human element, the human emotions, motivations, frailties, and as
Speaker 3: much as we try to design these systems, and that's important,
Speaker 3: the actual people are way more important.
Speaker 1: Yeah, And I think we get at that from the
Speaker 1: title of the book. The title comes from you know,
Speaker 1: one of the best TV shows of all time, Slash,
Speaker 1: one of the best political science books of all time.
Speaker 1: So When You Come at the King is originally Machiavelli,
Speaker 1: but we know it from Omar in the Wire, and
Speaker 1: that was a very very I think that's such an
Speaker 1: interesting choice because Omar is not exactly like the hero
Speaker 1: that you would think that, you know, a prosecutor would
Speaker 1: choose to title his book, and he has a very
Speaker 1: he has a code of ethics, right, he has his
Speaker 1: code of morals, but it's very specific. So I just
Speaker 1: wanted to before we get into, you know, the important
Speaker 1: stuff in the book, I wanted to ask about the
Speaker 1: inspiration behind your title and kind of the background of that.
Speaker 3: Taken from Omar and The Wire. Omar, of course, for
Speaker 3: those who haven't watched The Wire is sort of the
Speaker 3: lone wolfson pace Michael K. Williams May the late great
Speaker 3: Michael K. Williams. He is the lone Wolf assassin basically,
Speaker 3: and one of it there's a famous scene where he says,
Speaker 3: you come at the King, you best not miss now.
Speaker 3: I will confess I had a sense that that maybe
Speaker 3: went pre Omar, and as you said, Maria, it did
Speaker 3: go back, goes back to Machiavelli, Emerson, others, but let's
Speaker 3: be real, nobody said it as well as Omar. And
Speaker 3: there's really two things that motivate I didn't have the
Speaker 3: title one. I mean, I don't know if you tend
Speaker 3: to have your titles when you start your books. I haven't.
Speaker 3: I come up with them as I go, right, But
Speaker 3: two things. One, the stakes for all involved. I mean
Speaker 3: I talk to these people who are very accomplished prosecutors,
Speaker 3: defense lawyers, white House officials, and they all basically were
Speaker 3: like I'm paraphrasing, you know, but they all basically said,
Speaker 3: we knew that this is this was all I'd be
Speaker 3: remembered for. This was life or death politically, legally, et cetera, professionally.
Speaker 3: The other thing is the retribution angle, right, That's the
Speaker 3: point of what Omar saying, if you're gonna come after
Speaker 3: the king, you best not miss otherwise there will be retribution.
Speaker 3: And that I think reflects very much what's happening certainly
Speaker 3: right now with Donald Trump.
Speaker 1: Yes, I think retribution has definitely been part of the
Speaker 1: both implicit and explicit motives for for a long time.
Speaker 1: The office, and what I say the office, I mean
Speaker 1: the Office of Special Counsel is first created after Watergate, right,
Speaker 1: not before, like when Watergate happens, this doesn't even exist.
Speaker 1: It leads to the creation. I somehow didn't realize that.
Speaker 1: But you know, can we just talk about you know, first,
Speaker 1: why now, like why you decided to write this right now,
Speaker 1: And secondly, like why why we're starting you know, why
Speaker 1: you decided to take kind of this historical approach as
Speaker 1: opposed to just like boom, we're going to start with
Speaker 1: Donald Trump put us right in the.
Speaker 3: I mean, look, there are two chapters here about Donald Trump,
Speaker 3: the two big Trump investigations. But the end part, and
Speaker 3: this is the why now, is geared at what's happening
Speaker 3: right now, because I argue in the book it's fundamentally
Speaker 3: different in kind than anything we've seen throughout our history. Now,
Speaker 3: I wanted to go back. I actually wondered when was
Speaker 3: the first outside we'll just call them outside prosecutors, because,
Speaker 3: as you say, the nomenclature changes. But you know, Watergate's
Speaker 3: the first one that I think registered for all of
Speaker 3: you know, I mean, it's before all three of our times.
Speaker 3: I will say I was born in nineteen seventy five,
Speaker 3: so it was over by then. But the first one
Speaker 3: was Grant Ulysses ays Grant. The reason I put it
Speaker 3: in there is because so many of the moves we've
Speaker 3: become accustomed to we're being done back then. Like it's
Speaker 3: a long story, I tell it in like one page,
Speaker 3: but basically there was a kickback scheme with whiskey distillers
Speaker 3: in Missouri, and so Grant gets pressured into appointing an
Speaker 3: outside process of course, right, And what ends up happening.
Speaker 3: The outside prosecutor starts, you know, picking up some low,
Speaker 3: low hanging fruit, and then he starts getting close to Grant,
Speaker 3: and Grant fires him, and then the media attacks Grant,
Speaker 3: and then Grant says, the media is out to get me.
Speaker 3: I mean, it's all so familiar. We've seen it happen many,
Speaker 3: many times. But Watergate, you're right, I mean people may
Speaker 3: not realize. John Dean, the famous you know, Watergate witness,
Speaker 3: the former White House counsel, said to me it was
Speaker 3: improv There was no at that time, special council, independent
Speaker 3: council laws, regulations anything that we got them right after
Speaker 3: because of Watergate. But they were making it up as
Speaker 3: they went along. They did a pretty good job. But
Speaker 3: you know that that was the motivation, that was the
Speaker 3: reason we have these rules now.
Speaker 1: And you know, even back then, though, I found it
Speaker 1: really interesting that they were scared that their investigation would
Speaker 1: be shut down, yeah, and that the evidence would be destroyed.
Speaker 1: So I actually thought it was really interesting that people
Speaker 1: brought files home and hid them to try to make
Speaker 1: sure that they would actually have evidence to prosecute. That
Speaker 1: was not something we learned in US history, you know
Speaker 1: that even back then, because to me it seemed, you know,
Speaker 1: I think, because I'm not a lawyer, I don't know,
Speaker 1: don't have a legal background. So maybe this, you know,
Speaker 1: as just a consumer of this, it's probably quite naive
Speaker 1: of me, But I had thought that this kind of
Speaker 1: threat to you know, to the prosecution was more of
Speaker 1: a modern thing, right, was something that just happened basically. Now,
Speaker 1: I didn't realize that this is something that people had
Speaker 1: been living with, and that the office was partly created
Speaker 1: to try to mitigate that.
Speaker 3: Exactly.
Speaker 1: We protect the people who were trying to run these investigations.
Speaker 3: So the book opens with the story from Jill Wyne Banks,
Speaker 3: who was then thirty years old, one of the Watergate prosecutors,
Speaker 3: and she told me candidly she would bring photo copies,
Speaker 3: not originals, but photocopies of key pieces of evidence, notes,
Speaker 3: witness summaries home and put them in a box because
Speaker 3: they were afraid that Nixon's goons would ransack the office,
Speaker 3: and that sort of ended up happening and she says
Speaker 3: to me something like, I don't know how smartly I
Speaker 3: thought through my options, and it may have been on
Speaker 3: the borderline of what we call Rule six e, which
Speaker 3: is like the grand jury secrecy rules, she said, but
Speaker 3: we like, in order to protect our investigation, we had
Speaker 3: to do that. And I love the historical echoes in
Speaker 3: the book because if you fast forward forty some years,
Speaker 3: the Mueller team did almost the same thing, higher tech,
Speaker 3: but they you know, I talked to FBI agents and
Speaker 3: prosecutors on that team. They said, we made a point
Speaker 3: of backing up like you back up your files every
Speaker 3: day to an off site server, because we were worried
Speaker 3: that same thing that Trump's people would come in and
Speaker 3: take over and shut down the office. So when you
Speaker 3: see those echoes, I think it tells us something about
Speaker 3: sort of the common instinct for self preservation that both
Speaker 3: presidents and prosecutors have.
Speaker 2: There's got to be some like Kinkos in Arlington, Virginia
Speaker 2: where they know every government secret from like nineteen seventy
Speaker 2: five until what do people saw photocopy in two thousand
Speaker 2: and five or something.
Speaker 3: I can I tell you something along those lines of day.
Speaker 3: So there's a moment in here when I'm talking about
Speaker 3: the Star Report, which I don't know how old you
Speaker 3: all are, but that, right, this is the big Ken
Speaker 3: Star Report, and I was trying to explain to people.
Speaker 1: Are fifty shades of gray right exactly?
Speaker 3: Yeah, A how this broke was the first real massive
Speaker 3: Internet moment. I mean, I remember I was in law
Speaker 3: school at the time. I remember download download download things
Speaker 3: were crashing, right, and there's all these articles about like
Speaker 3: can this new thing called the internet support this? But
Speaker 3: at one point I wrote, however many copies Borders order? Borders,
Speaker 3: you guys both know was the big bookstore, right. I
Speaker 3: spent half our lives in Borders as kids. And my
Speaker 3: one of my copy editors, a much younger person, said,
Speaker 3: you're going to have to drop a parenthetical explaining what
Speaker 3: that is. So there is a section there where I
Speaker 3: say borders and it's sad, but I had to have
Speaker 3: borders Parenz, which used to be a major national bookstore Kinkos.
Speaker 3: I think Faul would fall into the same category eight this.
Speaker 1: I think the Star Report was a really you know,
Speaker 1: as I could have told you before we started taping.
Speaker 1: My first I was still in I think elementary school,
Speaker 1: you know, when this was all happening, and it's my
Speaker 1: first political memory, like my first big political memory was
Speaker 1: you know, Monica Lewinski and Star and all of this.
Speaker 1: I didn't read it too little.
Speaker 3: It was allowed to. It was a little too.
Speaker 1: Tittilating for the likes of me. But you know, it
Speaker 1: was a really I think interesting moment where a lot
Speaker 1: of people's political consciousness were awakened, like especially people who
Speaker 1: hadn't lived through Watergate, right, who hadn't who hadn't kind
Speaker 1: of seen the start of this. So I'd love to
Speaker 1: just kind of talk through that as just like a
Speaker 1: big historical moment and what it meant for how the
Speaker 1: office went forward, because, as you point out, Clinton was
Speaker 1: the last one to renew the law that was then
Speaker 1: take you know, was then used to try to take him.
Speaker 3: Down immediately boomerang. Yeah, look, Ken Starr killed the Independent
Speaker 3: Council Law. I mean, the Independent Council Law was passed
Speaker 3: after Watergate, signed by Jimmy Carter, and it died at Sunset.
Speaker 3: Congress let it die in ninety nine, but it would
Speaker 3: come up every five or ten years for renewal, and
Speaker 3: basically every president didn't like it. Ronald Reagan's DJ concluded
Speaker 3: that it was unconstitutional, but he was like, politically, he
Speaker 3: felt he had no choice. He had to sign it.
Speaker 3: When it came up for the final reauthorization in ninety four,
Speaker 3: George H. W. Bush, the father who Clinton had just
Speaker 3: defeated in the ninety two election, counseled him like, as
Speaker 3: a fellow president, you're not gonna want to sign this thing.
Speaker 3: But Clinton also felt he had no choice signs it
Speaker 3: and then it becomes the bane of his existence. And
Speaker 3: you know, that is such a memorable moment. I mean,
Speaker 3: I was in law school. People may not realize how
Speaker 3: much on the razor's edge we were. I mean there
Speaker 3: was a moment when Bill Clinton calls a press conference
Speaker 3: and we didn't know is he resigning or is Al
Speaker 3: Gore going to be president by tonight? And you know,
Speaker 3: I talk about how some of the indelible lines I
Speaker 3: give the backstory. Right, the two probably most famous lines
Speaker 3: or infamous lines from that whole thing are, I did
Speaker 3: not have sexual relations with that woman, miss Lumis. That's
Speaker 3: my Clinton and the other one is it depends on
Speaker 3: what the meaning of is is. And I give the
Speaker 3: backstory on both of them. I won't give it all
Speaker 3: the way, but I'll just tell you that one of
Speaker 3: the people I intern was the prosecute so ken Star
Speaker 3: passed away a few years ago, but his number two
Speaker 3: was a guy named Saul Weisenberg, who asked the question
Speaker 3: that Bill Clinton answered, it depends on what the meaning
Speaker 3: of is is. I also talked to Bill Clinton's lawyers,
Speaker 3: Whore and the White House lawyers who were by his side.
Speaker 3: But I asked Weisenberg. I said, how did you feel
Speaker 3: when he gave you that answer? And Wisemberg said he
Speaker 3: was very honest. He goes, Look, I'll tell you the truth.
Speaker 3: That was a four hour timeframe that we had. That
Speaker 3: was about three hours in and up to that point
Speaker 3: Clinton was kicking our ass. We didn't get anything out
Speaker 3: of him. He looked in control, he goes, But when
Speaker 3: he gave that answer, he looked so smarty, and what
Speaker 3: he said was so ridiculous. He was a former DOJ lawyer.
Speaker 3: He said, if I was trying this case to a jury,
Speaker 3: I would have turned to them and been like, can
Speaker 3: you believe this guy? And of course that's you know,
Speaker 3: that's the moment that lives on from that. That's a
Speaker 3: precipitous moment in history right there.
Speaker 2: When did this all kind of become a partisan hellscape
Speaker 2: in your opinion, Elias? I mean, how much it was
Speaker 2: during the Clinton years or has it just been upping
Speaker 2: the ante one presidency at a time.
Speaker 3: Yeah, it's always been somewhat. I don't know if partisan
Speaker 3: in the early days is quite the right word, but
Speaker 3: it's always been a battle. I mean, everyone's always circled
Speaker 3: the wagons and geared up for survival Watergate. When you
Speaker 3: look back at it is shockingly non partisan, right like
Speaker 3: people within DJ stood up to him. I have scenes
Speaker 3: in there on the Sunday morning after the Saturday Night
Speaker 3: massacre where the team is wondering, have we all been.
Speaker 1: By the way, for our listeners who don't know, Saturday
Speaker 1: Night ostacer.
Speaker 3: That was when Nixon fired the special counsel, and then
Speaker 3: the Attorney General and Deputy Attorney General resigned rather than fire,
Speaker 3: So the three top officials were all gone. And I
Speaker 3: talked to the players. They they came in Sunday morning
Speaker 3: and they didn't know there was actually an erroneous report
Speaker 3: in the top New York Times that they had all
Speaker 3: been fired, but they hadn't, and Archibald Cox comes in
Speaker 3: and says to them, basically, you keep doing this work,
Speaker 3: don't give him what he wants. Two weeks later, there's
Speaker 3: a new special prosecutor and ends up, you know, ends
Speaker 3: up resulting in Nixon's resignation. I think it got really ugly,
Speaker 3: you know Clinton. I think Clinton ken starrs when people
Speaker 3: really took their sides and people really dug in. And
Speaker 3: we've seen that certainly with the Jack Smith Trump case,
Speaker 3: both sides, certainly with the Joe Biden Robert her classified
Speaker 3: documents case. I mean, I think everything since Clinton has
Speaker 3: been pretty politicized. Maybe not the Scooter Libby Pat Fitzgerald case.
Speaker 3: That one was George Bush was the president was like
Speaker 3: he was fairly supportive of that investigation happening, but everything
Speaker 3: else has become just partisan warfare since then.
Speaker 1: That's interesting that you would put it that in that
Speaker 1: modern era, because you know, in the book, when you
Speaker 1: kind of give our Whiskey scandal that we started the
Speaker 1: show with, you say that that was really the playbook
Speaker 1: that's kind of still being used to this day, right
Speaker 1: that we've had the bones of this for centuries.
Speaker 3: Yeah, yeah, I mean, I mean the moves that were made,
Speaker 3: like why does Grant appoint a special counsel because he
Speaker 3: feels political pressure because his opponent says, I found this
Speaker 3: scandal and Greg goes, well, well, hold on, we're going
Speaker 3: to take care of it. We're going to appoint an
Speaker 3: independent guy. That guy goes out, he starts making headway.
Speaker 3: When he gets too close, Grant fires. Grant actually tries
Speaker 3: to do a move that Nixon did a century later.
Speaker 3: Grant tries to have a military tributal takeover. Nixon tried
Speaker 3: to have the CIA takeover, but both of them failed,
Speaker 3: and ultimately it becomes finger pointing both ways, and the
Speaker 3: media says he's you know, he's covering up, and Grant says,
Speaker 3: the media is. I mean, he might as well have
Speaker 3: called it fake news. He didn't use that phrase, but
Speaker 3: he all but says that in eighteen seventies speak. So
Speaker 3: I think it's important to understand, you know, people who've
Speaker 3: only been really following this since Muller think it's brand new.
Speaker 3: What's happening now Trump two point zero is brand new.
Speaker 3: But really from Grant through the Jack Smith case, there's
Speaker 3: a lot of connective tissue. Yeah.
Speaker 2: I always try to emphasize when people are understanding the
Speaker 2: current very polarized moment in politics that like, you know,
Speaker 2: maybe my generation of political reporters, or maybe maybe one
Speaker 2: generation older than me, probably right, but not two generations
Speaker 2: we have grew up in like the lore of post
Speaker 2: World War two elections, right, Yeah, the fifties, the sixties,
Speaker 2: the seventies, and if you look historically, this is a
Speaker 2: time of a very low polarization relative to the baseline,
Speaker 2: and a time when the fifties in particular, you know,
Speaker 2: the United States is doing very well. We had a
Speaker 2: common enemy, we defeated in World War Two. You have
Speaker 2: this baby boom, this prosperity boom. Right, we have the
Speaker 2: space race. Right, things are looking up. That's so great
Speaker 2: if you're a minority in the nineteen fifties or a
Speaker 2: woman or day or whatever else. Right, But like, but
Speaker 2: you know, people, society had less conflic than it does now.
Speaker 2: And you go before that to the turn of the
Speaker 2: previous century, we had a civil war, Right, partisanship is
Speaker 2: kind of the norm. But Ellie, but you do think that, like,
Speaker 2: it's not just MSNBC exaggeration when people say what Trump
Speaker 2: is doing is is much worse. Half an order of
Speaker 2: magnitude worse or an order magnitude worse than we've seen before.
Speaker 3: I often disagree with MSNBC, but I do think it's
Speaker 3: accurate to say that about what's happening right now this part,
Speaker 3: because what's different is every president up until now, and
Speaker 3: I include Trump won in that every president up until
Speaker 3: now has at least understood there does need to be
Speaker 3: some sort of outside prosecutorial mechanism, whether they're investigating the
Speaker 3: president or someone around him, or maybe they're kind of quiet.
Speaker 3: There wasn't much of this during the Bush or Obama eras,
Speaker 3: but that I do need to respect this, I do
Speaker 3: need to let it go. Look, every president or most
Speaker 3: presidents who've been involved in these cases have tried to
Speaker 3: undermine them or obstruct them to some degree. But Trump
Speaker 3: has just come in now and said, oh, we're not
Speaker 3: even going down that road any There will be no
Speaker 3: inward looking investigation at me, Donald Trump or anyone around me.
Speaker 3: And more to the point, and this gets to the title,
Speaker 3: anyone who looked at me in the past is now
Speaker 3: getting investigated. It's when you come at the king and
Speaker 3: also Nate to your other point, you know, I spoke
Speaker 3: to Carl Bernstein for this book, who I know through CNN.
Speaker 3: Of course, Carl was the legendary Washington Post reporter who
Speaker 3: helped break the whole Watergate story. And I said, how
Speaker 3: did this take so long to play out? Like Nixon
Speaker 3: survived ten months after that Saturday night massacre during the
Speaker 3: seventy two election. People may not realize this Watergate break
Speaker 3: in happened before that. And Carl had already linked a
Speaker 3: check from the burglars to a Nixon campaign, and Nixon
Speaker 3: won wins, you know, fift forty nine states and five
Speaker 3: hundred something electoral votes in seventy two. And I said
Speaker 3: to Carl, like, how could this be? And he sort
Speaker 3: of was, He's great, but he was sort of like, okay,
Speaker 3: young man, let me explain something detail. But he basically
Speaker 3: said things were different then. He said, by and large,
Speaker 3: if the president denied something, you didn't automatically take him
Speaker 3: at his word. But the public was much more likely
Speaker 3: to give him the benefit of the doubt, as was Congress.
Speaker 3: And he said things just move slower back then, like
Speaker 3: it wasn't this twenty four hour boom boom news culture,
Speaker 3: social media, so you know, but when I sat down,
Speaker 3: the one point in the book where I sort of
Speaker 3: cop out and just have a timeline is because it's
Speaker 3: so confusing, and I think I just said, boom boom,
Speaker 3: this happened, This happened, this happened, and then we do analysis,
Speaker 3: but like you have to have that because I cannot
Speaker 3: believe how long it took for that to play on.
Speaker 3: I can't believe how long he survived politically.
Speaker 1: Yeah, so you know, bridging, bridging those kind of two
Speaker 1: things together kind of from the Watergate era two nights
Speaker 1: question just now, and how different right Trump two point
Speaker 1: zero is because you write in the book that he,
Speaker 1: you know, Trump one point oh, the original hadn't quote
Speaker 1: fully grasped the lovers of executive pet power, yeah, unquote,
Speaker 1: and now he definitely has. Right the second time around,
Speaker 1: he knows you.
Speaker 3: Just flip it off, Okay, exactly.
Speaker 1: That's what you do to that. And I was actually
Speaker 1: curious under kind of the current regime, right, what has
Speaker 1: happened right now? And kind of the really weird definition
Speaker 1: of presidential immunity right kind of all of that. Do
Speaker 1: we think that all of the cases that you write
Speaker 1: about in the book, including Gate, could they happen today?
Speaker 3: Right?
Speaker 1: Like if something like that happened, if we had a
Speaker 1: Watergate level scandal right now.
Speaker 3: The realistic answer is today, you know, September of twenty
Speaker 3: twenty five. No, because Donald Trump's president and Pambondi's ag
Speaker 3: And I mean, if if you had any question about
Speaker 3: that to me, there was a sort of moment of
Speaker 3: truth with Pambondy a few months ago when the signal
Speaker 3: scandal broke out, right, Mike Waltz and others were using
Speaker 3: this non secure app and discussing military plans. And I
Speaker 3: point out in the book every time we've had any
Speaker 3: sort of classified documents issue before, it's been at least
Speaker 3: an investigation Hillary Clinton's email, Joe Biden, or an investigation
Speaker 3: and an indictment. Donald Trump was indicted for that. And
Speaker 3: Pam Bondi comes out three days after no investigation and says, no,
Speaker 3: nothing to see here. We're not investigating and you all
Speaker 3: should be focused on the success of the military strike
Speaker 3: more than anything else. That was it. What would have
Speaker 3: happened in almost any prior administration, as DJ would have
Speaker 3: convened an investigation. We're taking this very seriously, and six
Speaker 3: months later, maybe they would have issued some report, maybe
Speaker 3: they would have found someone needed to be indicted, But
Speaker 3: here Pambondi was just slammed the door before it could
Speaker 3: even start. Now, I don't think it has to be
Speaker 3: this way forever. And essentially the pitch I make in
Speaker 3: the book is, whenever president comes next forty eight, whoever
Speaker 3: that is, you, sir or ma'am, are going to find
Speaker 3: that a lot of guardrails have been kicked down, and
Speaker 3: it's gonna be mighty tempting for you to leave them down,
Speaker 3: because who wants ethics, who wants restrictions on private profits?
Speaker 3: Who wants special counsel, who wants inspectors general? But this
Speaker 3: one is too important And if we just let this
Speaker 3: one stay dead, then we're gonna have big problems down
Speaker 3: the line.
Speaker 1: And we'll be back right after this.
Speaker 2: How bad was Watergate?
Speaker 3: Right?
Speaker 2: Because you hear about like a quarterback or baseball play,
Speaker 2: you know, Reggie Jackson hit whatever forty seven home runs
Speaker 2: in nineteen sixty eight or whatever?
Speaker 3: Are we doing like era inflation?
Speaker 2: Yeah, I mean, like if wanting it happened today.
Speaker 3: Would it be It's a good yeah, that's a good question.
Speaker 3: I mean, let's think about it. So let's let's use
Speaker 3: a real life example who do you want to be
Speaker 3: the bad guys? Democrats are Republicans. Let's make democrats, let's
Speaker 3: say democrats. Let's flip it. Let's flip it. If it
Speaker 3: turned out that a group of burglars had broken into
Speaker 3: the RNC or hacked into an R and C server
Speaker 3: and downloaded a bunch of stuff, and then that was
Speaker 3: tied back to let's say Joe Biden, and it turned
Speaker 3: out Biden knew about it and was in on a
Speaker 3: cover up, that'd be I think that'd be pretty bad, head,
Speaker 3: I mean, right, But then again, I mean if you
Speaker 3: look at some of this stuff Trump, I mean, January
Speaker 3: sixth is hard to compare to anything, you know, the
Speaker 3: possession of classified documents, but I think it's pretty bad.
Speaker 3: Like I don't you know, I look back at Watergate
Speaker 3: and see it as this had to happen. I look
Speaker 3: back at ken Starr and think that was an out
Speaker 3: of control prosecutor, and I think that's I'm certainly not
Speaker 3: alone with that many many Republicans. I mean Clinton left
Speaker 3: office in one Nate, this is up your alley with
Speaker 3: a sixty six percent gallop approval rating, in large part
Speaker 3: because of backlash over the ridiculous impeachment. And by the
Speaker 3: way I talked to in the book, the prosecutor Bob Ray,
Speaker 3: who replaced Ken Starr, comes in at the end and
Speaker 3: he has the unfortunate the impeachment's already over, the failed impeachment.
Speaker 3: He's got to decide, will you indict Bill Clinton? And
Speaker 3: I said to him, Bob, you gotta be kidding me.
Speaker 3: There's no way you're gonna indict in two thousand and
Speaker 3: one Bill Clinton, for you'll never get a single vote
Speaker 3: to convict him. And Bob basically ninety nine percent of
Speaker 3: the way, And the book says, we had all the
Speaker 3: pieces in place. If he didn't reach an agreement with us,
Speaker 3: we would do what we had to do. Now, he
Speaker 3: ended up paying a fine twenty five thousand dollars and
Speaker 3: making a sort of Clintonian statement about misleading the American
Speaker 3: public and giving up his bar license. But I mean,
Speaker 3: I'm shocked by that. But Bob said, I'm glad that
Speaker 3: I didn't it didn't come to that. I'm glad he
Speaker 3: took a deal. And Bob said, by the way, if
Speaker 3: we had indicted him, we could have had a situation
Speaker 3: where we had a president sitting in the dock of
Speaker 3: a criminal courtroom eight months later, nine months later when
Speaker 3: nine to eleven happens, and that would have been Can
Speaker 3: you imagine how horrible that would have been. So, you know,
Speaker 3: it's crazy to me to think that he might have
Speaker 3: indicted Clinton, But if Clinton had said I'm not giving
Speaker 3: an inch, it's pretty clear that he would have been indicted.
Speaker 3: He would have been equitted, but he would have been indicted.
Speaker 1: Yeah, it's it's really interesting to me when you know,
Speaker 1: when reading this book, and obviously there were some cases
Speaker 1: that I knew and others that I hadn't heard of before.
Speaker 3: It's no listen, nobody knows all these.
Speaker 1: But but you know, the this wide spectrum of seriousness
Speaker 1: is actually quite eye opening.
Speaker 3: Right.
Speaker 1: You have you have things that you're like, okay, like
Speaker 1: I understand, and then you have things that just seem petty,
Speaker 1: and you're like, why are we investigating this? And then
Speaker 1: you realize, and you point this out in the book,
Speaker 1: that the blame isn't just with the special prosecutor. You know,
Speaker 1: it's with people like Reno who say, yes, you know,
Speaker 1: we should we should do this.
Speaker 3: Expand into Monica lays.
Speaker 1: Sad, Yeah, into Lewinsky and they're just some some the
Speaker 1: scale of it seems totally off, and I feel like
Speaker 1: maybe we wouldn't be where we are today if it
Speaker 1: had been more uniformally applied.
Speaker 3: Well, I think it needs to be applied judicially. I
Speaker 3: mean some of these cases where special councils were appointed
Speaker 3: are preposterous. The first, this is one of my favorite facts,
Speaker 3: the first ever independent council. So Watergate happens, we get
Speaker 3: this new law. In seventy eight, the first ever special
Speaker 3: council was appointed to our independent council was appointed to
Speaker 3: investigate alleged cocaine use by a White House, a White
Speaker 3: House advisor at Studio fifty four in Manhattan. I mean,
Speaker 3: what could be more disco era than that? And you know,
Speaker 3: the main guy they talked to was some Johnny C,
Speaker 3: some drug guy at Studio fifty four who was like,
Speaker 3: I think I might have given some guy a two.
Speaker 3: And of course that didn't ever get charged, you know
Speaker 3: they I mean a lot of times the right move
Speaker 3: is you don't charge. But I think he was the
Speaker 3: chief of staff. What's his name, Hamilton Jorden. It spelled
Speaker 3: Jordan j O r Dam, but it's pronounced Jorden as
Speaker 3: I learned during my audiobook, so it was the chief
Speaker 3: of staff to the White House. In fact, the second
Speaker 3: investigation was also a guy using coke. I mean, it
Speaker 3: couldn't be more seventies. But I think I think the
Speaker 3: bar has been raised, and I think people on both
Speaker 3: sides politicians generally now understand we're not going to appoint
Speaker 3: special counsel on pitdling matters. Although you could look at
Speaker 3: Hunter Biden, that prosecutor, and I talked to Hunter's team,
Speaker 3: Abby Lowell, his lawyer, who ferociously objected to this. It
Speaker 3: was a gun and tax case on an Indi private individual.
Speaker 3: And I think there's a lot of criticism to be
Speaker 3: had of Merrick Garland for agreeing to turn that prosecutor,
Speaker 3: David Wise, from a regular DOJ prosecutor. Then he decides
Speaker 3: he wants to be special counsel, and Garland says sure,
Speaker 3: but I think that was a mistake, and I think
Speaker 3: I think you do have to look at what's the
Speaker 3: seriousness of the charges here.
Speaker 2: So do you do you think Democrats came and missed
Speaker 2: with Trump? Do they not go hard enough on the
Speaker 2: best cases?
Speaker 3: So the short answers yes, And the person who I
Speaker 3: laid most flame at in the book is Merrick Garland
Speaker 3: because Jackson. The first sentence of the Jack Smith chapter
Speaker 3: is jack Smith never had a chance because by the
Speaker 3: time Merrick Garland wastes two years and appoints Jack Smith's
Speaker 3: special counsel in November of twenty twenty two, almost two years.
Speaker 3: I wrote in my prior book, which came out in
Speaker 3: mid twenty twenty two, it's already too late. I quoted
Speaker 3: the movie Searching for Bobby Fisher, which I don't know
Speaker 3: if you guys seen a great movie, right, Chess Prodigy movie, yep,
Speaker 3: And the kid says to his opponent, you've already lost.
Speaker 3: You just don't know it yet. And it turned out
Speaker 3: that was correct. There was never any way, if you
Speaker 3: know how long federal prosecutions take, if you knew, which
Speaker 3: we did, because I wrote about in my last book,
Speaker 3: they were going to have to deal with the immunity issue.
Speaker 3: It was going to go to the Supreme Court. There
Speaker 3: was never any way jack Smith was going to get
Speaker 3: his case done tried before the twenty twenty four election. Now,
Speaker 3: if Trump had lost, okay, you know, you try him later.
Speaker 3: But you always knew there was at least a fifty
Speaker 3: to fifty chance Trump would win, So they took that
Speaker 3: risk and they lost. But I think there's there's a
Speaker 3: lot of discussion in here about why Merrick Garland, you
Speaker 3: know the fact that Merrick Garland took too long, and look,
Speaker 3: does that justify retribution? Absolutely not. But Trump has now
Speaker 3: you know, they shot and missed, and Trump's now coming
Speaker 3: back at them.
Speaker 1: And they're not the first ones. So one of the
Speaker 1: things that you know, I was noting as I went
Speaker 1: through the book was, you know, a lot of the
Speaker 1: people who came at the King missed, right, Yeah, well
Speaker 1: missed the mark.
Speaker 3: Yes, and some decided not to take the shot. I mean,
Speaker 3: Robert her with Joe Biden is a good example. You know,
Speaker 3: everyone remembers that Robert Herr said, oh, Biden's an elderly
Speaker 3: man with a faulty memory, blah blah blah. That was
Speaker 3: the big But but what everyone kind of missed is
Speaker 3: that Robert Hurr found that Joe Biden knew he had
Speaker 3: classified documents, like Joe Biden denied that for years. Anything
Speaker 3: I had was in Adverton accidental, accidental. But there's a
Speaker 3: tape we find out of Joe Biden's say to his ghostwriter,
Speaker 3: I just found all the classified stuff downstairs, meaning in
Speaker 3: his private office. So like I sort of said, look,
Speaker 3: Robert Herr could have I think he did the right
Speaker 3: thing by passing on this, but he could have written
Speaker 3: a report that said, while I cannot indict the sitting
Speaker 3: president under long standing DOJ policy, to talk about that
Speaker 3: in the book, I do find that the evidence would
Speaker 3: have been sufficient to uphold a criminal charge. There is
Speaker 3: a criminal charge for knowingly mishandling classified documents. And really
Speaker 3: that statement by Robert Herr is offered to explain his
Speaker 3: calculation on the state of mind, the intent. He says, well,
Speaker 3: it would have been hard to, you know, show a
Speaker 3: jury that he was fully aware, fully remembered. He would
Speaker 3: have been sympathetic to a jury. I mean, but look,
Speaker 3: I talked to Bob Bauer, who's Biden's lawyer, who was
Speaker 3: fiercely critical of her. Said he went too far, said
Speaker 3: he put politically, you know, stuff he shouldn't have put
Speaker 3: in his report. So I kind of leave some of
Speaker 3: this to the reader, you know, I mean, I don't.
Speaker 3: I will let people withdraw their own conclusion, some of them.
Speaker 3: I think there's a definitive conclusion to be drawn. But O,
Speaker 3: there's I think, you know, it depends how you see it.
Speaker 3: So sometimes you know, Look, I make a point of
Speaker 3: saying this in the book, and I say this as
Speaker 3: someone who was a prosecutor for a long time. You
Speaker 3: can't just judge prosecutors. I'm like, what's their stats? Like,
Speaker 3: how man? How many people did you ring up here?
Speaker 3: Because sometimes the right move the better move, and the
Speaker 3: right move is to exercise your discretion against the charge.
Speaker 3: And I think reasonable minds can differ on the Biden case,
Speaker 3: but I think it's hard to say her was wrong.
Speaker 2: What do prosecutors not understand about politics?
Speaker 3: That's a great question question I want to say everything.
Speaker 3: I mean, look, if you would talk to me six
Speaker 3: years ago. Let's say I've been doing media stuff for
Speaker 3: seven years now. In early in my media cra I
Speaker 3: was fresh out of fourteen years of being a prosecutor.
Speaker 3: And I have this very like purest notion of prosecutors.
Speaker 3: Like what we do, especially at DJ is pure. It
Speaker 3: is uninfected by politics. It is separate, apart, and probably
Speaker 3: above from politics. The reality, however, is prosecution is part
Speaker 3: of our It exists within our political system. I mean
Speaker 3: why do we have DJ and an attorney general and
Speaker 3: an executive branch. It's from the Constitution, where all we
Speaker 3: all spring from the same document. And I think it's
Speaker 3: a bit naive to say that like prosecutors are just
Speaker 3: you know, where are white knights and never aware of policy.
Speaker 3: I mean, look, this is part of the complexity of
Speaker 3: Jack Smith. Like did he do his job in a straightforward,
Speaker 3: aggressive way, yes, but there's no question he was rushing
Speaker 3: like mad to get Trump tried before the twenty four election.
Speaker 3: That's an uncomfortable intersection of politics and prosecution and people
Speaker 3: who you know, I point, people sort of defended Jack
Speaker 3: Smith reflexively. I think, because like there was a thing
Speaker 3: for a while, anyone who's going after Trump is good
Speaker 3: by me. I don't buy into that. But Jack Smith
Speaker 3: initially demanded a trial date for Trump five months after
Speaker 3: the indictment on a case with thirteen million pages of discovery.
Speaker 3: That is impossible and unheard of. I actually looked up
Speaker 3: the data. The average case in that court, in DC
Speaker 3: Federal Court, and I'm just talking drug and gun rips
Speaker 3: mostly took twenty eight months. The defendant got twenty eight
Speaker 3: months to prep that two years and change, and Jack
Speaker 3: Smith says, here, we have like the most complex, most
Speaker 3: important case in US history, and he needs to go
Speaker 3: to trial in five months. And I talked to Trump's
Speaker 3: legal team and they said, correctly, like, there's no physical
Speaker 3: way we could have gone through the evidence in that time.
Speaker 3: And the only reason he wasn't able to do it
Speaker 3: was because the immunity decision came in and everything I'll
Speaker 3: put on hold, and then Trump won. So look, I
Speaker 3: understand Jack Smith, I think has the closest to my
Speaker 3: prosecutorial background of like cea target attack target. But I
Speaker 3: also think you can't tell me that Jack Smith was
Speaker 3: unaware of the looming election and trying to get his
Speaker 3: case tried before the election. There's no rational observer who
Speaker 3: could say that he had no idea and didn't care.
Speaker 3: Of course he cared.
Speaker 1: Yeah, so we have a lot of, you know, important
Speaker 1: questions about what should happen, you know, going forward. But
Speaker 1: I do have to say that I did one piece
Speaker 1: of outside research that I was inspired to do based
Speaker 1: on your book, and you included a detail about Patrick Fitzgerald,
Speaker 1: who was the special counsel who was put in charge
Speaker 1: of investigating the Bush administration for leaking the identity of
Speaker 1: a CIA agent. But that's not what I took away
Speaker 1: from that chapter. What I took away was that he
Speaker 1: was one of people's fifty sexiest men Alive of two
Speaker 1: thousand and five.
Speaker 3: Yes, sexy, and he wasn't, but he was on the list.
Speaker 1: No, Matthew McConaughey that year was the sexiest man alive. Yes,
Speaker 1: just edged him out. And I was like, what the fuck? Like,
Speaker 1: who is this guy? So I looked him up and
Speaker 1: my answer is what the fuck?
Speaker 3: Okay, So my editor, my editor, Maria, one of my
Speaker 3: fact checkers and editors, who was a woman of about
Speaker 3: your age, dropped and note in the manuscript saying, holy shit,
Speaker 3: did you just disappoint me? Because because Pat Fitzger, she
Speaker 3: did the same thing as you. She googled him. Now, child,
Speaker 3: he's a good looking guy, right, Like he's above that average.
Speaker 1: He's maybe above average, I don't know, but fifty sexes
Speaker 1: met alive? Like what was he doing as a special
Speaker 1: prosecutor that made him?
Speaker 3: Like?
Speaker 1: What what a funny moment in history?
Speaker 3: Number one? Number one? That is, you know, objectively, he's
Speaker 3: the only special counsel ever named sexiest anything. I've never seen.
Speaker 3: You know, the guy from the Whiskey Rain was not
Speaker 3: named sexiest anything by the New York Herald number two.
Speaker 3: I think it's actually a good reminder of like I remember,
Speaker 3: because I had just started at DJ. I started an
Speaker 3: four and this investigation went crazy in five six oh
Speaker 3: s and Fitzgerald had come out of the office I
Speaker 3: had started in. I don't know him, I've never met him.
Speaker 3: He didn't talk to me because he's sort of retired.
Speaker 3: He lives like in I don't want to say where,
Speaker 3: but he lives a quiet life out of the law now.
Speaker 3: And he very politely declined. But everyone at the office
Speaker 3: I worked at worshiped this guy. Loved him. He's hilarious,
Speaker 3: he's brilliant, and I think just something he was the guy.
Speaker 3: He was the Jack Smith, the Robert Muller of two
Speaker 3: thousand and five six, and you know, like that what
Speaker 3: kind of iconography or whatever? You know, I talk about
Speaker 3: that with Muller, right, remember all the Muller action figures
Speaker 3: and memes and He's gonna get you and all this.
Speaker 3: You know, Muller's team made a really interesting points. I
Speaker 3: talked to a couple of the prosecutors. They said, people
Speaker 3: who were spreading that stuff Muller, she wrote, and you know,
Speaker 3: Muller's gonna do it justice. And by the way, they
Speaker 3: did the same thing the other side with John Durham,
Speaker 3: and they did the same thing with Jack Smith. These
Speaker 3: guys said to me, that was first of all, completely
Speaker 3: a disservice to Robert Muller, the man who was an
Speaker 3: American hero. The guy was shot in Vietnam through his
Speaker 3: leg and returned. He was he was a recipient of
Speaker 3: a purple heart. He's, you know, an FBI director during
Speaker 3: nine to eleven. He hated that crap. He hated being,
Speaker 3: you know, a Twitter meme for liberals. And they also
Speaker 3: say it didn't help us, by the way, because it
Speaker 3: gave the other side fuel to say, look, they're coming
Speaker 3: after us. They've put this attack dog on us. And
Speaker 3: so as much as some liberals had fun with their
Speaker 3: Muller memes, Owlers own team hated it, and they talk
Speaker 3: about that in the book.
Speaker 1: No, that's definitely sorry.
Speaker 3: About Pat Fitzgerald. By the way, I pretty handsome.
Speaker 1: It's okay, it's okay, But you know you aren't you
Speaker 1: happy that you've inspired in dependent historical research on the
Speaker 1: part of your readers.
Speaker 3: I hope for Pat fitz Cherald's spike right right about now.
Speaker 3: That's a good sign.
Speaker 2: And we'll be right back after this break. Who would
Speaker 2: you want to talk to that you weren't able to
Speaker 2: pin me? And what would you ask them?
Speaker 3: That's a great question. The guy I wanted to talk
Speaker 3: to most was Jim Comey, who takes a lot of
Speaker 3: heat in this book. Now, Jim Comy again. I started
Speaker 3: at the SDN y five months for something like that
Speaker 3: after Jim Comy left, and I say in the book
Speaker 3: when I got there, everyone who was already there loved
Speaker 3: and worshiped Comy. They you know, Comy's like six set.
Speaker 3: I've met him. I've had nice conversations with him in
Speaker 3: green rooms and stuff. But Comy declined to speak with
Speaker 3: me because we all know how shy Jim Comey is
Speaker 3: about the meeting. That's a joke. But look, Jim Comy
Speaker 3: takes a lot of shit in this book, and I
Speaker 3: think he deserves it. The incident with Hillary Clinton's email
Speaker 3: that we talked about before, Nate, that you looked into
Speaker 3: whether it may have flipped the election, that is the
Speaker 3: perfect example of why we need rules because what happened
Speaker 3: was Loretta Lynch has our meeting on the tarmac with
Speaker 3: Bill Clinton. They both say nothing inappropriate has happened, was discussed,
Speaker 3: but Loretta Lynch herself said that meeting cast a shadow.
Speaker 3: That's her word over the investigation. She showed at that
Speaker 3: point of a point that a special council it was
Speaker 3: actually briefly considered, but she doesn't. Instead, she says, I'm
Speaker 3: going to just defer to the FBI, which is not
Speaker 3: the way it works. The AG's in charge, Well, what
Speaker 3: do you do. What happens when Jim Comy is told
Speaker 3: I'm going to defer to you. He runs wild. He
Speaker 3: doesn't abide by any of the rules or regulations. He
Speaker 3: does whatever he wants. And that results in two announcements
Speaker 3: shortly before the election, and since then, I don't think
Speaker 3: anybody defends Comey other than himself. I mean, three different
Speaker 3: attorneys general of both parties, a Democrat and two Republicans
Speaker 3: have publicly said that Jim what Jim Comy did was
Speaker 3: absolutely wrong, violated DJ norms. And so if you want
Speaker 3: to know what happens when we try to investigate the president,
Speaker 3: but we make it up as we go along, look
Speaker 3: at Jim Comy, so he didn't he didn't want to
Speaker 3: talk to me. I wish he would have.
Speaker 2: You get these things in like, if you're watching the
Speaker 2: NFL or NHL or NBA whatever, right, where like the
Speaker 2: decisions that officials make are not totally unbiased with respect
Speaker 2: to the game score and the effect on the outcome
Speaker 2: and the and the and the star power of the
Speaker 2: athletes involved, right, And they'll say, well, look, we're trying
Speaker 2: to manage the game. It's an entertainment product. And like, yeah,
Speaker 2: if you're calling some tiki tech foul want to play
Speaker 2: the determines the super Bowl, then that's not good game.
Speaker 3: As an Eagles fan, that hurts. But yeah that's the
Speaker 3: first Chief super Bowl, which bullshit. But god, yeah, you
Speaker 3: guys are spoiled. Now I'm not complaining, but yeah.
Speaker 2: I mean, is a better prosecutor unaware of politics or not? Right, Like,
Speaker 2: let's say you have something that's.
Speaker 3: Gonna know Again, I don't buy into this ideal of
Speaker 3: like the prosecutor locked in a vacuum and just looking
Speaker 3: at the DOJ Justice Manual. Like, I think a good
Speaker 3: prosecutor has to be aware of what the politics are,
Speaker 3: especially in these special council cases because you're gonna have
Speaker 3: the White House involved, You're going to be requesting information
Speaker 3: from the White House. Congress may get involved the media,
Speaker 3: but I think you have to keep your head down
Speaker 3: and I mean it sounds pollyanna ish maybe, and do
Speaker 3: your best to do the job without regard to the
Speaker 3: certainly not the Okay, let me put it this way.
Speaker 3: You have to be aware of an account for the politics,
Speaker 3: but you should never be playing a partisan role. There's
Speaker 3: a difference there. Right, you exist in a political universe.
Speaker 3: But I think when it gets to a point where
Speaker 3: people are with some credibility saying now that's something that
Speaker 3: wouldn't ordinarily be done. Now you're potentially crossing the line
Speaker 3: into partisanship.
Speaker 1: So I think that's a good moment to kind of
Speaker 1: turn to your recommendations, right, which you kind of have
Speaker 1: some end at the end of the book for kind
Speaker 1: of going forward. Now that this office has been like
Speaker 1: completely gutted, right and we don't even know what's going on,
Speaker 1: we basically need to start over. What would your ideal
Speaker 1: look like? How do how do we come back from
Speaker 1: where we are now? How do we create an office
Speaker 1: of whatever we call it? Independent Council Special whatever it is,
Speaker 1: What do we do so that we have investigations that
Speaker 1: are as impartial, you know, with all the caveats as possible,
Speaker 1: and that actually keep people to account who need to
Speaker 1: be held to account.
Speaker 3: Yeah. So, first of all, if you look at history,
Speaker 3: every quarter century or so, we sort of revamped this, right,
Speaker 3: we did one in the seventies, one in the nineties.
Speaker 3: Now Here we are, and there is no perfect system.
Speaker 3: There's no way I do lay out a system at
Speaker 3: the end. There's no way I would tell you it's
Speaker 3: infallible or every you know, there are certainly arguments against it,
Speaker 3: but my first argument is some system is better than
Speaker 3: no system. Just look at Jim Comy again. If you
Speaker 3: want to freestyle all these get ready for more Comy's
Speaker 3: second of all, the crux of what and in coming
Speaker 3: up with this proposal A I looked at scholarly articles
Speaker 3: and law review articles and various other legislative proposals. But
Speaker 3: I also everyone I talked to for this book, all
Speaker 3: the prosecutors, defense layers, white House officials, you name it.
Speaker 3: I said, what how did the rules work for you?
Speaker 3: What rule do you wish have been different? Which which
Speaker 3: ones were effective. The number one thing I think we
Speaker 3: need is a semi permanent special council within DJ nominated
Speaker 3: by the President, confirmed by the Senate to give some
Speaker 3: political look. There has to be some accountability. You can't
Speaker 3: just have a super powerful prosecutor. The AG and all
Speaker 3: the US attorneys have to be nominated to confirm this
Speaker 3: person has the same powers, if not more, and so
Speaker 3: needs to have that political legitimacy to It needs to
Speaker 3: have a set term of years, sort of like the
Speaker 3: FBI director serves for five years, although now Trump just
Speaker 3: fires them at will, but for a long time it
Speaker 3: was like ten years FBI director, I should say, but
Speaker 3: you know, you just you inherited that Mueller carried over
Speaker 3: over various administrations. And the person needs a semi permanent
Speaker 3: staff of prosecutors, analysts, investigators, so you don't have this
Speaker 3: scenario of Ken Starr, Bill Clinton go go. You know,
Speaker 3: Jack Smith, Donald Trump go. So you are looking at
Speaker 3: various things at once. But you know, one of the
Speaker 3: concerns is aren't you going to incentivize this person to
Speaker 3: always be breathing down the president's neck. My answer is
Speaker 3: not if you have the right person. I mean not
Speaker 3: if you have a person who understands prosecutorial restraint and
Speaker 3: you know, so, Look, we rely on the people to
Speaker 3: an extent. But I also think this person needs more
Speaker 3: higher level protection against firing. I think we need to
Speaker 3: more carefully vet our people who are on that team
Speaker 3: for any outwards political biases. There have been people on
Speaker 3: these teams who have been donors and been to campaign parties.
Speaker 3: I think that's disastrous. I talked about one of Muller's
Speaker 3: team members who was at the Hillary Clinton what was
Speaker 3: supposed to be victory party but was not, and has donated.
Speaker 3: And he has defended himself by saying, well, but I
Speaker 3: didn't make any I didn't get anything wrong though. Whatever
Speaker 3: my personal beliefs, I was able to put them aside.
Speaker 3: And I said, yeah, but the other people on the
Speaker 3: team said they had to stop you a couple of
Speaker 3: times from doing things that were inappropriate. And I also said,
Speaker 3: this person wouldn't talk to me either. But I also
Speaker 3: used a baseball analogy. I said, this would be like
Speaker 3: if in the seventh game of the World Series, the
Speaker 3: home plate it was Yankees and Dodgers. I should have
Speaker 3: used a Phillies Astros or something, but Yankees Dodgers. I said,
Speaker 3: what if the homeplate umpire ended up with a high
Speaker 3: game score? Like you know, the computer said he did
Speaker 3: a good job. But on his Instagram page he was
Speaker 3: wearing a Dodgers hat every day. Like would Yankees fans
Speaker 3: be expected to accept that guy? Would the general public
Speaker 3: be expected to accept that guy? So I think we
Speaker 3: need to vet for political bias, you know, donations and
Speaker 3: public statements, that kind of thing. It's not perfect, but
Speaker 3: I do think I do reject the idea that like
Speaker 3: I'm just going to throw my hands up and say
Speaker 3: this is all broken, because that's not dealing with the problem.
Speaker 3: That's just washing your hands of it.
Speaker 2: Ellie, how much could be done via legislation as opposed
Speaker 2: to requiring constitutional changes.
Speaker 3: So you can do all of this basically, I think
Speaker 3: by legislation, I'm not sure, you know, the current Congress
Speaker 3: certainly wouldn't do it, and I'm not sure any But
Speaker 3: the real fallback option A is legislation. Option B is
Speaker 3: DJ can pass its own REGs. The current Special Council.
Speaker 3: There is no law, it's just DJ reggs which are
Speaker 3: passed by DJ itself. So those are the fallbacks I think,
Speaker 3: And by the way, there would be a constitutional challenge.
Speaker 3: There have been over time. It's the systems have always
Speaker 3: withstood it. But that would happen as well.
Speaker 1: So, you know, for people who you know read this,
Speaker 1: who kind of get acquainted with the history, who feel
Speaker 1: your frustration about the current moment and kind of take
Speaker 1: it to heart, what's kind of the big message that
Speaker 1: you want people can have take away from this?
Speaker 3: The big message is we have been grappling with this
Speaker 3: problem for a long time, but it's a problem we
Speaker 3: have to grapple with. And as much as the prior
Speaker 3: investigations have been highly imperfect, and a lot of the
Speaker 3: book is about how flawed some of these investigations were,
Speaker 3: we need this mechanism. It's a crucial check on the presidency.
Speaker 3: And although Donald Trump will be you know, it will
Speaker 3: be go dormant during the next three years, it can
Speaker 3: come back and it needs to come back because otherwise
Speaker 3: we're going to lose a key check on not just
Speaker 3: presidential power, but runaway executive branch power as a whole.
Speaker 1: So, at the end of the day, are you an
Speaker 1: optimist that that will happen or are you a pessimist?
Speaker 3: I tend to be an optimist. I mean, look, I've
Speaker 3: been in media for seven years. I've seen all sorts
Speaker 3: of crazy stuff happen. But I do believe in our institutions.
Speaker 3: I do believe in our laws. I don't think they're perfect,
Speaker 3: but I reject the hyperbolic. You know, I've heard people
Speaker 3: say we'll never have another election. In twenty twenty eight,
Speaker 3: Trump's going to run again. I've always rejected that. I
Speaker 3: don't think that's going to happen. I don't think that's
Speaker 3: I don't think he wants to do that. I do
Speaker 3: believe our laws and our constitution are sturdy enough. They're imperfect,
Speaker 3: but I think they're sturdy enough. They've stood up for
Speaker 3: two hundred and fifty years, and I think if we
Speaker 3: give them thought, they'll continue to stand up.
Speaker 1: I'm very happy to hear that. Thank you so much
Speaker 1: for coming on and sharing your wisdom and your optimism
Speaker 1: with us. Congrats again on the release of your new book,
Speaker 1: When You Come at the King.
Speaker 3: Thanks very much, guys, I appreciate it was great talking
Speaker 3: to you.
Speaker 1: Let us know what you think of the show. Reach
Speaker 1: out to us at Risky Business at pushkin dot FM.
Speaker 1: Risky Business is hosted by me Maria Kanakova.
Speaker 2: And by me Nate Silver. The show was a cool
Speaker 2: production of Pushing Industries and iHeartMedia. This episode was produced
Speaker 2: by Isaa Carter. Our associate producer is Sonia gerwit Lydia,
Speaker 2: Jean Kott and Daphne Chen are our editors, and our
Speaker 2: executive producer is Jacob Gold's mixing by Sarah Bruguer.
Speaker 1: If you like the show, please rate and review us
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