On with Kara Swisher - From “Witch Hunt” to “Weaponization”: The Impact of Trump’s War on the DOJ with David Rohde

Episode Date: September 23, 2024

For years, former President Donald Trump has railed against law enforcement officials who have sought to hold him accountable. In his latest book, Where Tyranny Begins: the Justice Department, the FBI and the War on Democracy, Pulitzer Prize-winning author and senior executive editor for national security at NBC News David Rohde investigates how Trump’s attacks have impacted law enforcement agencies and the civil servants who work there. In this episode, Kara and David discuss how Trump’s threats and conspiracy theories have undermined important investigations; why Attorney General Merrick Garland hasn’t been able to turn the tide on public trust; and what happens to a democracy that loses the rule of law. Questions? Comments? Email us at [e-mail] or find Kara on Threads/Instagram @karaswisher Learn more about your ad choices. Visit podcastchoices.com/adchoices

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This is On with Kara Swisher, and I'm Kara Swisher. Today, we're going to be talking about the Justice Department, the FBI, and the war that's been raging against and inside of them for years, started more or less by former President Donald Trump. Back in 2017, Trump started calling the DOJ investigation of Russian interference in the 2016 election a witch hunt. Eight years later, after being indicted in at least four criminal cases and convicted on 34 felony counts, Trump's still singing the same song with some new lyrics.

He's replaced witch hunt with weaponization. Here he is at the debate against Vice President Harris earlier this month. Every one of those cases was started by them against their political opponent. And I'm winning most of them and I will win the rest on appeal. And you saw that with the decision that came down just recently from the Supreme Court. I'm winning most of them. But those are cases. It's called weaponization. Never happened in this country. They weaponized the Justice Department. This kind of inflammatory rhetoric is par for the course with Trump,

but it has real-life implications for the civil servants in the Justice Department. Earlier this year, Attorney General Merrick Garland wrote an op-ed warning of the growing violent threats against the DOJ and the bullying of the public servants who work for the department. And it's not gotten better. We may have gotten used to it, but the truth is that just a decade ago, the Department of Justice was considered a trusted institution. So how did we get here and what implications does this shift have for the rule of law and the ability to hold our highest public servants accountable, and we should, in the years to come? I'm going to talk about all that today public servants accountable, and we should, in the years

to come. I'm going to talk about all that today with my guest, author, journalist, and two-time Pulitzer Prize winner, David Rhoad. He's currently the senior executive editor for national security at NBC News and author of two books on the Justice Department, In Deep, The FBI, The CIA, and The Truth About America's Deep State, and his latest, Where Tyranny Begins, the Justice Department, the FBI, and the War on Democracy. Our expert question this week comes from Barbara McQuaid, former United States Attorney for the Eastern District of Michigan. Hi, David. Thanks so much for being on ON.

Thank you for having me. So, there's a lot to talk about, and I want to first talk about your book, Where Tyranny Begins, which is about the Justice Department, the FBI, and the war on democracy. So, has the tyranny already begun? Talk a little bit about the title and the main thrust of the book. Well, the tyranny is sort of, it comes from John the title and the main thrust of the book. Well, the tyranny is sort of, it comes from John Locke. He said famously, where law ends, tyranny begins. And I don't think law has ended. I think the threat to law ending is growing. But for now, the legal system is sort of holding. It's too slow. Many people who wanted to see President

Trump put on trial are frustrated by the slow pace of it. Where it's having a major impact and a major finding, the book is what you talked about, people being hesitant to speak to me. The hyper-partisanship, particularly Trump's attacks on people, on FBI agents, on DOJ people, has made them fearful of talking about him, fearful of taking on highly politicized cases. And this would include primarily Trump investigations, but even like the investigation of Joe Biden's handling of classified documents. It's increasingly seen as a lose-lose, a career ender by any FBI or DOJ official that no matter how they handle a politically sensitive investigation, they're going to be hit harder by Trump, but they also face attacks from Democrats. And it just worries

me because I think we need people who are investigating, looking for facts in a sort of nonpartisan manner. We need election clerks who count votes and law enforcement who investigate crimes and journalists too. And I'm just worried about people being fearful of doing this sort of public service. But, you know, the book starts with this meeting where FBI agents are— Yes, I'm going to ask you, this is the Come to Jesus meeting on August 1st, 2022. Justice Department and FBI officials come together to discuss how to handle getting back secret government documents that Trump had taken with him in Mar-a-Lago and refused to return, essentially.

Describe this scene and why it's so pivotal. It's an example of this hyper-partisanship, this caution among DOJ and FBI officials, particularly FBI, slowing an investigation. We all know the search of Mar-a-Lago happened, but it was this moment, August 2nd, and what had happened was the, you know, the DOJ had sent one of their prosecutors down and Trump's lawyer had certified that here are all the remaining classified documents. There were 38 of them. Immediately after that, they got some surveillance tape that showed that, in fact, people who worked for Trump had moved dozens of boxes and hidden them before the DOJ showed up. The bathroom boxes, etc. The bathroom boxes. And there was a big divide in the FBI. Senior folks in the FBI were like, this is just too much. You can't defy a subpoena. They had already given Trump like a year to return these things. And they feel they were, you know, caught in this impossible situation that they were treating him differently than they would treat another American. treating him differently than they would treat another American. But then the head of the FBI office in Washington, a guy named Stephen D'Antuano, he just thought it was a mistake to go

in without getting Trump's consent, that he thought they should wait longer, negotiate again with Evan Corker and the lawyer who'd handed over for Trump, and delay it because he felt the forcible search would play into Trump's narrative of a deep state FBI. And it was, you know, he and several other people in the Washington field office didn't want to do it. And at the end of this very tense hour-long meeting, people are shouting at each other, there's no agreement, and they're deadlocked. And Don Tuono says, I will not conduct a search of Mar-a-Lago unless I'm ordered to do so by my superiors and the FBI. And his reason was because it would play into his hands or that he thought it was wrong to do so?

He absolutely thought it was that we would get, you know, he said it's our job as the FBI to get these classified documents. They do this all the time, and they are much more aggressive with other people. But he just said the way we're doing it is we're rushing it. more aggressive with other people. But he just said the way we're doing it is we're rushing it. And then the really interesting detail that I thought was very telling, privately, this didn't come up in the meeting, FBI agents had looked at the campaign donations of one of the main DOJ prosecutors and found that he had given donations to Democrats. They were pretty small, it was years ago. But they saw that as like a warning sign that maybe this guy, this prosecutor was sort of biased and out to get Trump. And so there were private conversations among FBI agents about

that. And again, more senior FBI folks said this is silly. And in a past era, a few campaign contributions wouldn't like cause a big kerfuffle. Right. But Trump weaponizes these things. Was there any moment where he would have consented at all? You know, he just said, let's have one more conversation with Evan Corcoran. And basically, he was overruled. There's one political appointee in the entire FBI, that's Chris Ray, the director, and that's to keep it apolitical. But the deputy director, Paula Bate, a civil servant, he's praised by a lot of people. I mean, he said, enough. We are going to carry out this search. They move these boxes. He's had more than

a year. There's a subpoena. He's defying a subpoena. There was a danger of obstruction of justice charges, and that's an alarm. You don't want to set that precedent that if someone obstructs justice in an investigation, you don't react. So, D'Antuano did carry out the search after he had been ordered to do so by the deputy director. So, this is, well, it's exactly the point. They didn't expect someone to take it this far, and that's the whole, that's the pattern of Donald Trump. He does it in every courtroom, he does it everywhere he goes. So, you write about how Trump demanded loyalty above all to himself, not to the office, not the Constitution. Talk about what did that look like in the early days of the Trump presidency? The names, obviously, James Comey comes to mind, but answer how you want. Just for people to understand, Comey was criticized by both

Democrats and Republicans for going rogue ahead of the 2016 election, and afterwards, he was put in office under Obama and famously fired by Trump. So talk a little bit about these early days. and famously fired by Trump. So talk a little bit about these early days. I think the firing of Comey was a major shock to people in the Bureau. Again, a lot of reforms were enacted after Watergate and J. Edgar Hoover. One was that there would be a 10-year term for an FBI director, so you wouldn't have a Hoover who just engaged in all kinds of abuses. We can talk about that separately. And I think the removal of Comey, the effectiveness of it in terms of the limited pushback that Trump got really surprised people in the FBI. Essentially, since Nixon was resigned, there was a fear, I think, among all presidents, Democrats and

Republicans for about 50 years since Nixon, that they couldn't sort of interfere in an investigation of themselves or their aides, or they couldn't fire an FBI director and not face an enormous political cost. And when Trump fired Comey, he didn't pay that large a political cost. And that creates this chilling effect that just intensifies over the years after that. Then you have someone like Special Counsel Robert Mueller, who was able to investigate alleged Russian interference and collusion, which is sort of the pre-Trump kind of DOJ. Was it a sign of strength or a last gasp of a previous era? I would say it's a last gasp, and I'm going to, like, constantly try to be glass half full here. Yeah. So, Rod Rosenstein, I spoke with him at length as well.

Explain who he is for people. Yes. Because he was critical. He was critical. So, he was the deputy attorney general. Explain who he is for people. Yes. Because he was critical. He was critical. So he was the deputy attorney general. And what happens is Jeff Sessions, again, glass half full, Jeff Sessions recuses himself

from the Trump-Russia investigation. Correctly. Absolutely correctly. He's briefed on it. And I talked to Sessions about it. One of the first meetings Jeff Sessions has as attorney general is he's told,

we have to tell you, sir, that there is an ongoing FBI investigation of the Trump campaign and whether it coordinated with Russia. And Sessions, who was one of the top people in that campaign, he immediately said, stop talking. I don't want to hear more about this. I cannot be involved. He did absolutely the right thing. And he said, it's like a crystal clear norm. like a crystal clear norm. Literally, one of the examples in the Justice Manual, the guidebook, is that you cannot investigate an organization that you were involved in. So, Rod Rosenstein is then put in charge of this. Trump's furious. He berates, as we all know, publicly and privately Sessions. And so, there's huge pressure on Rod Rosenstein, and he does protect the Mueller investigation. He and one of his aides, a guy named Ed O'Callaghan, who also spoke to me, they did the right thing. They let Mueller have the time he needed. There was constant pressure from Trump to shorten the investigation. And eventually the Mueller report comes out.

It does not find enough proof to bring criminal charges that the Trump campaign coordinated with Russia. And then there's obviously this huge dispute about Mueller not making a decision on obstruction of justice. But I did feel that the system worked because a special counsel, you know, roughly cleared Trump of the most significant charge. And of course, Trump still attacked the whole process and mocked it all. But for the public, I again, I think special counsels are needed. But one of the things was he installed Bill Barr as attorney general in 2019. And you wrote that in 2020 that Barr was Trump's sword and shield when he was guided on a mission to increase power at the executive branch. And you write about how Robert Mueller allowed Barr and Trump to win the

messaging war, even though he won by distorting the findings of his Trump-Russia investigation. Trump declared falsely there is no collusion with Russia, there was no obstruction, none whatsoever. Talk a little bit about the installation of Bill Barr, and then do you think Mueller made a mistake or could have done something differently, since he was a by-the-book kind of fellow? He did, and there's a general tendency of waiting to talk and letting your sort of documents speak for you, your filings in court. So, what Barr does is hold this press conference. Everybody, or I think many people remember it, and Mueller basically lets Barr have this press conference, let Barr decide how to summarize the reports. Barr doesn't use the

pre-prepared summaries from Mueller's team. He makes up his own findings, holds this press conference. And as you said, he sort of shapes the findings in the best possible way for Trump. And Mueller had a chance then to make a public statement, to come out very strongly, get up in front of the cameras and say, my report has been distorted, but he didn't do that. And there's a newer generation, a younger generation of DOJ and FBI officials that saying kind of this classic thing of sitting back and filing court filings that one of them said to me, trust me, doesn't cut it in an age of hyper-partisanship and in the digital age where you just have tons of information out there.

And I think that it's slowly changing, but that was a major mistake by Mueller was to let Barr get out there and define a report. Well, he's of an old era, but talk about the importance of Bill Barr. He represents and solidifies the new norms. And I want to get to his flip-flopping on Trump, although he may have flipped back, who knows. But talk about his importance and what was happening with him. his importance and what was happening with him. He was vital, and it's important to frame him. Barr is a big believer in the unitary executive theory, and this is a big Federalist society belief that you need a strong president. And Barr talked about this in a speech when he was Attorney General, that in moments of crisis for the country, this massive country needs a strong

president. And we can talk about how this ends up feeding into the immunity ruling later. But so Barr's view and generally the circle's view is that the attorney general can be somewhat political. The attorney general can, you know, act. And the idea is that, and even maybe have pressure from the president, the idea is that it's up to voters every four years to then hold a president and their attorney general accountable for their actions and throw them out of office. And the problem, of course, with that theory— Maybe they can make it so we can't throw them out of office. Exactly. What do you do when the president doesn't accept the election results?

Right, exactly. But what do you make of him flip-flopping on Trump? He testifying against him for the January 6th hearing, saying there was no election fraud, later saying he was unfit for office, and then admitting he was going to vote for him anyway, which is a classic Republican move these days. So it's not unusual to do that. It's interesting. And Barr didn't talk to me. He was very unhappy with the profile. I wrote about him for The New Yorker. But, you know, talking with people around him, the fairest thing I can say is that he, for all of his life, he's sort of not trusted the left. He grew up during the Vietnam era and sort of hated all the Vietnam War protesters at Columbia. And he, I think he really sees the country as being under threat

from a radical left that he thinks sort of controls Hollywood and increasingly controls politics. And he thought, you know, appointing Mueller was just totally unnecessary and an effort to, again, handicap Trump's presidency. And it's this existential threat. He, you're right, he recently said, he did the right thing for the election. He said the 2020 election was not stolen. He rebuffed Trump's claims and criticized him. But then recently he said he would vote for Trump. And it was some quote about voting for Trump is Russian roulette.

But, you know, supporting Biden or Harris is a route to disaster. Right, right. So he sees a bigger threat. He fears the left, that there's this sort of socialist takeover looming. There's a, you know, and he feels, he happens to be religiously observant, a Catholic, but he feels like, for example,

that religiously observant people in America of all faiths are sort of under cultural siege from the left. Yeah. The Washington Post reported this summer that he blocked an investigation of a $10 million of Egyptian money and its ties to the 2016. Yeah. The Washington Post reported this summer that he blocked an investigation of a $10 million of Egyptian money and its ties to the 2016 Trump campaign. Are you surprised we're still learning some of this stuff? Yes. There's questions still about what happened under Trump.

And there hasn't been, as far as I know, a full sort of accounting under Garland in terms of what happened. And some people criticize Garland for this, but this is, again, a sort of a traditional approach to the Justice Department where, I guess, in deference for the institution, Garland has not made everything public that was done under Barr. I also have, you know, there are DOJ officials who say they haven't found many things, but then you have this very concerning account on the Egypt investigation. So... Right. So, they're trying to operate in the old norms era, but the fallout of all these years on the DOJ and FBI is evident. Many civil servants you spoke to had resigned and given up

public service career, and they can make a lot more money doing that, by the way. Comparing the FBI to 2016 to the FBI of 2021, you wrote, five years of Trump's attacks had reduced the Bureau's appetite for risk. This harkens back to that first scene about the raid on Mar-a-Lago. Talk about the change of the DOJ even into today. Well, one other example from Mar-a-Lago, which is more interesting, is this younger generation pushed for putting out as much detail as possible after the Mar-a-Lago raid. Garland initially said nothing. He did give a press conference and say, I ordered this search. What was interesting is when they filed the court papers showing about the search and the classified documents, there was a push by younger prosecutors and FBI folks to include photographs. This might sound like a simple thing, but the FBI doesn't traditionally do that. And you and I as members

of the media, these incredibly powerful pictures. Social media. Yes. Social media, the pictures of the stacks of boxes in a bathroom, the stacks of boxes on a stage, and then most of all that kind of vivid picture on a flowered carpet, those top secret documents sort of spread across the floor. And that was an example of the department changing and being more transparent and trying to, you know, not let themselves be defined by Trump or other political actors. Right, that you show what you've got. And I think photographs are critically, those rocketed around and made it harder for Trump to push it off. He might've had an easier time had he, you know, I just kept them in my office. But when you actually physically see them,

it's certainly something. Although you could come to the conclusion he's just a slob and he mixed, because stuff was mixed in, right? So it's sort of- To be fair, those ones on the ground had been put there by FBI agents as they went through files.

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there is not one rule for friends and another for foes, one rule for the powerful, another for the powerless, one rule for the rich and another for the poor, one rule for Democrats and another for Republicans. And then he said this. Let's listen. Our norms are a promise that we will not allow this nation to become a country where law enforcement is treated as an apparatus of politics. He got a lot of applause there from attorneys, but I remember thinking, sure, Jan, that's what I thought, like, come on. Talk about how Garland had taken on this crisis. And was he the right guy to get the agency's group back? A lot of people think he isn't. Some people think he's doing exactly the right thing. I would say it's a mixed thing. What is his biggest challenge from your perspective?

I'm so glad that you asked this question and chose that quote. So Garland has complete—he's been a public servant himself, and he deeply believes in upholding the rule of law in a fair way, but is he the wrong person for this moment in the country? Trump complains about these civil servants and calls them the deep state best way to prevent a future president from weaponizing the department. That it's positive you have these career people who work there. And Republicans don't see it that way. They say all these are liberal and they're left-leaning and all this kind of stuff. So it's this interesting thing, and I'll go back to my maybe naive thing, but I just – I believe in that nonpartisan public service is possible. It's needed. No one's perfect. No one's completely unbiased. But in certain roles, again, judges, election clerks, journalists, you need to try to just be fair and get basic information, public health officials. And if we don't have them, I think our democracy, you know, doesn't function well.

Yeah, I'm going to play another thing from that speech in particular, because he made a point of inviting a lot more career civil servants to that event also. Correct. He did. He wants to empower them. He wants them, he wants the public to trust them. Right. The issue is, was, you know, this speech, you know, too little, too late. Too little, too late. So, let me just play another part, and then I'd love to get your comment. Over the years, he's repeatedly complained that the DOJ and agents are under attack, including in that speech. Let's play it. Over the past three and a half years, there has been an escalation of attacks on the

Justice Department's career lawyers, agents, and other personnel that go far beyond scrutiny, criticism, and legitimate and necessary oversight of our work. These attacks have come in the form of conspiracy theories, dangerous falsehoods, efforts to bully and intimidate career public servants by repeatedly and publicly singling them out, and threats of actual violence. out and threats of actual violence. Through your work, you have made clear that the Justice Department will not be intimidated by these attacks. But it is dangerous and outrageous that you have to endure them. So he was very emotional in his speech, and I went and found my comment to someone at the time. And again, just like Sherjan, I was like, no shit, Sherlock, because I've been covering this stuff online for a long time that this is happening.

But what are your thoughts when you heard that? You said too little too late a second ago. Was it just for those agents or those career civil servants? Why now when he's saying something that's become so blatantly obvious to everyone at this point? He was slow. I mean, he really believes he should not be a political actor. And one thing, I've talked to, you know, his aides and others about this, and I'd say to them, you're so reticent, he's so reticent, you know, you've got sort of one hand tied behind your back compared to a political actor. Sure. And Garland has told aides, you know, you've got sort of one hand tied behind your back compared to a political actor. And Garland has told aides, you know, yes, the Justice Department has a hand behind its back compared to a political actor. But Garland insists, you know, but becoming a political

actor is a line that he will never cross. He will never allow the GOJ to become political. And there's sort of a contradiction here. But he said to aides, we would not want to be a political actor. That is the end of the rule of law. But in that regard, he's with his hand tied behind his back. They take advantage. Correct. It's a different time. Correct.

So what do you make of the attacks on him for being too reticent? Because there's a lot like there's a lot from Democrats and others, largely from the left. But, you know, he's getting attacked from the right, too. I think he could have been giving speeches like this much, much sooner and been much more aggressive and talking about what's happening. Another character in the book was a former DOJ official who worked on one of the Trump investigations, one of an associate of Trump's. the Trump investigations, one of an associate of Trump's. And this prosecutor, Trump specifically mentioned them in a tweet. And this person was terrified that in their view, you know better than me, 60 million, 70 million, 80 million, you know, followers at that point on Twitter, that he has no security. He would go home at night afraid that he was going to round a corner and

have a Trump supporter who believed, you know, that this prosecutor was part of the deep state attack him. And so the chilling effect of a president saying this, having the platform on social media is just a whole new ballgame. So I do think there's a more active way for Garland to get out there. I mean, he said he's given all these speeches and things. And so it's a conundrum, though, for the office of the attorney general. Again, he should act apolitically. But one other mistake, too, I think, was that he could have appointed a special counsel sooner to investigate Trump. to investigate Trump. Jack Smith, I mean, they did carry out investigations January 6th, but there's another chapter of the book called The Lost Year. Other journalists have reported this as well, but there was a very slow move in the beginning to investigate Trump. Yeah, well, let's talk about that. Going back to the Come to Jesus Mar-a-Lago case, Donald Trump was indicted on 37 counts for mishandling sensitive information after

the investigation by special counsel Jack Smith. But in July, Judge Eileen Cannon dismissed the case, saying that the Justice Department doesn't have the authority to appoint special counsels like Jack Smith, an incomprehensible ruling, I think, for most people. Smith's team is appealing the ruling he wrote in a filing. If the attorney general lacks the power to appoint inferior officers, that conclusion would invalidate the appointment of every member of the department who exercises significant authority and occupies a continuing office other than the few that are specifically identified by statute. Talk about that, because if he was slow and then this happens with this obviously incompetent judge at the very least, talk about the implications of that for the Justice Department.

Yes, I think it's fair to say that there was time lost in the beginning of the January 6th investigation, and the documents case had the delay I talked about. And then the Judge Cannon's decision was a shock. It's sort of saying that special counsels and all the, there's several dozen political appointees at the top of the Justice Department, people that aren't Senate-confirmed are unconstitutional. And this no judge, no one ever anywhere had sort of used this interpretation of the law. It's sort of this unitary executive theory, but kind of on steroids in that you're weakening the president because you're able to appoint these special counsels that the president as the chief executive should oversee all investigations themselves. And it just shocked the Justice Department. And this is a change, again, glass half full. The judiciary generally did the right thing, particularly in December 2020. Dozens of judges, Trump appointees, you know,

also rejected the claims of fraud. The judiciary, I would argue, was the strongest branch of government in the crisis we faced in 2020. He lost at the Supreme Court as well. And now you have Judge Cannon throwing out these charges that may get overturned, and then you have the immunity ruling from the Supreme Court, which we can talk about also. But it's, that's the, to me, the wild card as we head into the 2024 election. A rogue, relatively legally incompetent judge, for example. You don't have to say that. One person who supported, I'm not even a lawyer and I get it. One person- I will, I'm trying to be, you know, the reporter.

I get it. I get it. Even my brother who's sort of Trumpy was like, that's ridiculous. No, there are good, there are a couple Trump appointees in the Atlanta—the appeals court in Atlanta that overruled Cannon earlier. Yeah. So, you know, there are people trying to do the right thing. Well, or else they just know the law, for example. So one person who supported it, dismissing this case, was Supreme Court Justice Clarence Thomas. He made a note of this when the judges decided the presidential immunity case, which we'll get to in a second. Talk about the impact these things have on the Justice Department, especially on morale. This is basically what former Bush

administration Deputy Attorney General Donald Ayer warned about in your 2020 New Yorker article, what would happen if the Supreme Court validated Barr's view on the executive branch. Do you feel that prescient or pretty clear based on your reporting? I think the immunity ruling was a real shock, and it was clearly seen in the Justice Department as, it was written very vaguely, and some people feel that was intentional, that the definition of, you know, that official acts by the president are absolutely immune, including the conversations between the president and the attorney general, which is an unprecedented interpretation of law. But personal

acts, you know, you can investigate. But every interaction with the Justice Department was absolutely immune from prosecution. And they didn't really define what a personal act was versus an official act. And this is going to cause this case, even if Kamala Harris wins the presidency, it'll take two years to litigate or one to two years to litigate exactly what is a personal act on January 6th and what was an official act on January 6th to carry out that trial. So I do think it hurt morale, but I've heard that people are not leaving, that people are staying in the Justice Department waiting to see the election results. And this would be the big question. If Trump were to win, he wants to get rid of a lot of the civil service protections people have. This would allow him to fire people more easily. Currently, the president, this is part of the Project 2025 and

changing the whole civil service system in the federal government. The president could go from now any president appoints about 4,000 political appointees across the federal government. It could be, you know, many thousands more, tens of thousands of people appointed by Trump. He hired and fired them personally. And then again, this is just the fear is politicizing the Justice Department and other agencies. Well, he's apparently never read it, according to him. But going back to this idea of the norms, though, Garland says he wants to make sure they're reinstated, just what we're talking about, this idea that they wouldn't do this, that this is over and above.

So every week we get a question from an outside expert. Have a listen to this one. This is Barb McQuaid, professor from practice at the University of Michigan Law School and former U.S. attorney in Michigan. Here's my question. Unless DOJ follows the post-Watergate norms of nonpartisan independence, as Merrick Garland has done, doesn't it risk becoming a political weapon for all future administrations? future administrations? This is obviously Garland's argument as well, but you've written that some of these norms actually help Trump and could aid in the future. Explain why you think that and what do you think of Barbara's question? She's exactly right. And this is the view that, that at least exactly right. And this is exactly what Garland says. And that the best thing he can do is sort of represent, embody, show the public, this is the nonpartisan norm and this is the way to stop the president. I've asked legal experts, like, can't we, this justice manual, which has all these guidelines for prosecution where Jeff Sessions says, I'm not going to, you know, oversee the investigation of the campaign I helped run.

these laws? Is there any way to, you know, make these stronger, these norms? And that would be thrown out because it would be probably by this Supreme Court because that would be Congress, you know, dictating to another branch of government, the executive branch, how it should conduct prosecutions. And so, and I don't, I still think there's more that can be done. There's a way the obstruction of justice laws can be updated. This became an issue in the Mueller investigation. It's very confusing. Congress has failed to act on that. There's a way to make it very clear that the president using his pardon power to, you know, get someone in exchange for someone obstructing an investigation, that that is illegal. is illegal. There's Jack Goldsmith, who served under George W. Bush, has made all these recommendations, even like a law requiring presidents to make their tax returns public. That's a bit of field from the Justice Department. But there are laws that Congress could enact that would, you know, buttress these norms. And they could do a new special counsel law so that Eileen Cannon's ruling wouldn't matter,

that we need special counsels to carry out investigations. Another reform would be to limit special counsel investigations to five years. Presidents from both parties get very frustrated when they drag on for years. And so our system can and should reform. It did reform after Watergate. It can reform again to our times. But there's so much partisan gridlock that laws aren't being passed. You know, changes aren't being made to our government systems. We'll be back in a minute. Support for this podcast comes from Anthropic. Thank you. Claude is a next-generation AI assistant, built to help you work more efficiently without sacrificing safety or reliability. Anthropic's latest model, Claude 3.5 Sonnet, can help you organize thoughts, solve tricky problems, analyze data, and more.

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Sign up for your $1 per month trial period at shopify.com slash voxbusiness, all lowercase. Go to shopify.com slash voBusiness to upgrade your selling today. Shopify.com slash VoxBusiness. You spoke earlier about conspiracy theories of the deep state FBI. This is a favorite Trump and MAGA Republicans. They keep doing it all the time. For example, after the assassination attempt on Trump this summer in Pennsylvania, conspiracy theorists and prominent conservatives began suggesting the Democrats in the deep state was behind it. Of course, the Secret Service is under scrutiny again after another potential assassination attempt at his golf club in

Florida. So you wrote about the deep state in your last book, In Deep. We've gotten used to the far-right throwing out this term. Can you explain where, for people, I have a pretty good knowledge of this, where deep state came from and what it actually refers to now, or is it just one of these words like woke or politically incorrect or whatever one they have today? It's, thank you, you're helping me nerd out here. Okay, good. No, no. So the deep state, you know, as you may know, so originally it was used actually as like a description of the Turkish military, the Egyptian military. They were thwarting pro-democracy movements in those countries. But it explodes after Trump wins in 2016.

And there's an anonymous column on Steve Bannon's website about a great struggle is now going to unfold as Trump takes power between the deep state. He views them all as bureaucrats, and the Trump administration. And it was this sort of wide new definition of the deep state that wasn't, it's not just the military industrial complex, which liberals fear. And, you know, we should fear unaccountable bureaucrats across the federal government. But it's any public employee who people behold into the government or, you know, and anyway. And they're coordinated.

Yes. But the difference is, again, you have prominent, you know, the term deep state takes off. Trump, say what you want about him. He's a brilliant at messaging. So he starts using it. It appears on different conservative,

on Fox News hosts start using it, and it just takes off. And it's this view that the FBI is a secret cabal out to get President Trump. And on the left, there would be fears that sort of Pentagon leaders were rolling Barack Obama and pushing him to send more troops into Afghanistan than needed. In terms of the DOJ and FBI, I did not find that there was, you know, secret plots for the last book or this book. There is a bias, I think, toward institutions. D'Antuano, and I believe him, was trying to protect the reputation of the FBI.

He just thought, you know, let's not do this search so quickly because- So we don't look like a deep state, for example. So, you know, it's interesting because around the assassination of a GOP candidate in Washington State, Joe Kent even floated the idea that the Secret Service was in on the assassination attempt amid threats of impeachment from Republican lawmakers. How does a move like this play into deep state believers, which are much broader than people realize? Because in a 2018 poll, 74% of Americans say they believe that a group of unelected government and military officials definitely or probably secretly manipulated or direct national policy. So it's strangely bipartisan.

It is, and I think it's a real, again, danger to our democracy. And I can, I mean, you know better than I do about, you know, I think the internet overall still has the potential to be a force for good, but it's also an incredible source of false and misleading and conspiratorial information. So, I'm proud to be a journalist and will stay a journalist for the rest of my life and try to get the facts as best I can, but it alarms me that so many people believe these theories on the right and the left and that, you know, a theme of the new book is how these same divisions, the conspiracy theories, have now seeped into our government agencies and are slowing investigations. It just, for people to be aware, on the left is called the military-industrial complex, and the right is the administrative state.

But it's similar. It's a similar idea. Again, there's been plenty of fiction that this has, you know, animated fiction and the ideas of this. But how different is the far right's deep state beliefs from the left complaints of a plot? Because there's always a plot somewhere. Someone is up to a plot in a terrifically coordinated effort by government officials. Yeah, and we've always had people thinking that, and there may have been plots that you and I and other journalists missed, but it's good that Americans they didn't want it. They thought it was like kryptonite. They were like, some of them were like, well, won't he just give them back eventually? Like, they just saw it as a lose-lose. There's a former senior FBI official asked me not to name him because he was worried about threats. But he said, you know, why are we wasting our time on this? And then like, you know, Russia and China are the real enemies. So, I didn't find, you know, FBI, I found that there's

a culture in the FBI and DOJ, particularly the FBI, this was a change after Hoover. And it was William Webster and way back again to the 70s where they don't, it's, I believe this is true in newsrooms, many of them, but like, you know, in FBI offices, they don't sit around and talk about politics. You know, there's a pride in being apolitical in certain professions. And again, Trump consistently is the bigger threat, I think, in terms of weaponizing things. But I want to talk for one second about Robert Herr, the special counsel that investigated Joe Biden's handling of classified documents. He put in his report this famous line about one of the reasons he didn't prosecute— Being an old guy.

Yes, that he was a well-meaning older man with a memory issue. And I think there's tremendous pressure from Republicans on her to explain why there was some classified documents that Biden had in his basement, and not as many and not as high level as the Trump documents. And so he put that explanation in there, and her was savaged by the Biden White House and by Democrats for mentioning his memory. And lo and behold, the debate happens and it an independent investigator or, again, a public health official and our election clerk that they're actually trying to get basic facts out. To describe what's happening, you know, but still, it's effective, the deep state thing. I mean, when the Washington Post investigation of the money from Egypt, Trump's spokesman,

Stephen Chung, responded, the Washington Post is consistently played for suckers by deep state Trump haters and bad faith actors peddling hoaxes and shams. I mean, this is all the words. But if everything can be discounted as deep state, does it lose credibility or does it gain it by repetition? I don't know. I mean, I want to see what happens. Meaning, it's brilliant messaging. It's very effective messaging from Stephen Chung.

And those are all such vivid terms and all these narratives that grab us. But, you know, Joe Biden won the 2020 election. I guess that's considered a conspiracy. But I'm just saying to voters from both sides of the political spectrum that, you know, Donald Trump won in 2016. He won. It was an electoral college thing, but, you know, there's no question about that. And so, I think that the country is as deeply divided as the polls show. I think that changes are happening in Washington, meaning Joe Biden, you know, much more progress for labor unions that liberal peoples might want, a deeply conservative Supreme Court overthrowing Roe v. Wade. That's what many conservatives

wanted. So, I just don't think that there's that this is all like a play occurring in Washington. I think there's real divisions in our country. I want us to have three strong, independent branches of government that duke it out against each other. I want transparency as a journalist. I wish there was more from the DOJ and everywhere. That's what prevents, I think, the concentration of power and the lack of transparency, to me Trump is not cautious by nature. In fact, he's quite the opposite. He's continued to make comments about the DOJ and says all of his trials are politically motivated, but also the January 6th prosecutions. Here he is speaking at a rally in Wisconsin earlier this month. The moment we win, we will rapidly review the cases of every political prisoner unjustly victimized by the Harris regime. And I will sign their pardons on day one. I will sign it on day one. Right? Day one. We will completely overhaul Kamala's corrupt Department of Injustice and turn the Injustice Department back into the best law enforcement agency on the planet. Instead of persecuting Republicans, they will focus on taking down bloodthirsty cartels, transnational gangs and radical Islamic terrorists, which words they won't even say.

They won't even say any of those words. Well, they do that, actually. He's calling it the Injustice Department. Talk about what the overhaul would look like from your perspective, and how do you think it would be different from what he did the first time around? And actually, can he do it? Just one quick fact.

Sure. On the January 6th prosecutions, the judge that has overseen most of those trials, Royce Lamberth, was appointed by Ronald Reagan in 1987. He is a conservative judge, and the system's working because, you know, he's thrown out some charges against January 6th defendants. You have a jury that needs to find these people guilty. They have zealous defense lawyers. The Supreme Court also ruled to throw out some of the charges that related to obstruction of official proceedings. So the system, you know, is working and that one-dimensional

narrative he's presenting is not accurate. No, of course not. But don't let your facts get in the way of a good story by Donald Trump. It seems to be his theme. But what can he actually do? If Donald Trump is reelected, and thanks to the Supreme Court's recent immunity ruling, he would be able to call up the attorney general and order him to indict certain people. He's talked recently within the last few weeks about Mark Zuckerberg being indicted and potentially spending the rest of his life in jail because Trump thinks he swayed the 2020 election. And if Zuckerberg does it again, he'll put him in jail. And so this is a wider swath than just he's going to jail his political opponents. But the immunity ruling makes it legal. He's

absolutely immune if he calls his attorney general and says, indict this person. That's his power. No president has had that power until now in American history. The check on that that still exists in our system is that you still need a grand jury to vote for an indictment, and you would need a jury to convict the person that he puts on. Mark Zuckerberg would have to—and it is guaranteed in the Constitution— they don't think there's probable cause. But it's extraordinary that the president now has the power to. I mean, it can destroy your career and everything else. So a wealthy person could withstand it. And, you know, jurors might reject some of these charges. But it is an extraordinary thing we face that Trump could do thanks to the Supreme Court ruling. Right. All right. And what about overhauling the DOJ?

DOJ. In terms of Trump overhauling the DOJ, Garland seems to be hoping that there's enough people on the DOJ who would refuse to carry out illegal and unconstitutional orders. But I've talked to many people and they think there will be lawyers willing to carry this out. Jeffrey Clark, who was the official mid-level DOJ official who Trump tried to place, make the acting attorney general on January 3rd, would happily serve as attorney general. He would happily throw out all these January 6th cases. He would happily bring charges. And so, there will be, he just needs a few dozen people who are willing to carry out his orders and weaponize the Justice Department. And it would fall on... And he's vowed to strip them of civil service protections if he can.

Yes. And that's the bigger thing. Which, of course, will be subject to law, too. Well, if he—you know, it was an executive order before he left office where he tried to change the civil service system and remove— they're really regulations that prevent a president from firing civil service without cause. And he wants to make it easier to fire people and make them political appointees. Again, more court battles ahead, but he's been winning court battles. My concern is whatever the motivation, you know, this fear among Federalist Society folks that the presidency is getting too weak, we are seeing an unprecedented concentration of power in the presidency

and a lack of transparency. That was another marquee thing of the Trump administration, was not releasing documents, not saying what they were doing. And so, I fear the concentration of power and the secrecy, again, it undermines our democracy. Yeah, it's called an autocracy. Vice President Kamala Harris obviously knows the importance of an independent justice department. She was attorney general in California. Before that, she was a district attorney in San Francisco. What would a DOJ look like under her presidency? And what do you think she could or should do to reform the FBI and DOJ in a way to prevent future presidents from abusing its power? That's sort of hamstringing herself in a lot of ways if she becomes a president.

You mentioned this could come to Congress and lawmakers could act on certain things, but what does it look like with her in charge? Because she's a very experienced prosecutor and an experienced lawyer. Yeah, again, prosecutors and look, many people and obviously people of color in this country don't trust prosecutors at all or the criminal justice system. But their ideal, Robert Jackson, the famous former Supreme Court justice and who was also a prosecutor at Nuremberg, talked about the awesome power of prosecutors and how they had to act in a just way. And so, I think these norms should somehow be maybe made laws or somehow made more applicable that they really need to be abided by all people in the Justice Department,

by various attorneys general. And I think there's more that Congress can do. And I would hope that as a former prosecutor, you know, Harris would do that. Joe Biden has said he disagrees with the immunity ruling, that he says that it's too much power for the president. So I hope that, you know, she would practice what she preaches and make sure there are checks on abuse of prosecutorial power. But we have to see, and this depends then on who wins in Congress and whether Congress, even when the Democrats had control of Congress under Biden, there weren't enough safeguards enacted to try to, you know, prevent a January 6th to make clear the whole process of

certifying election results. What is something she could do immediately? I think there are various proposals by Jack Goldsmith, who I mentioned earlier, of laws and different regulations that the president could enact, a new president could enact through executive orders or through legislation that would reinforce and solidify the independence of the Justice Department and the FBI from political meddling. And it's critical that the president do that, a new president saying, I should not have all the powers that the Supreme Court has suddenly given me. We need checks and balances. And I think that that would be a very concrete, positive step for the next president, Kamala Harris, or even Donald Trump, to take. All right, well, we'll see if that'll happen.

Anyway, David, thank you for being on On. The book is called Where Tyranny Begins, The Justice Department, The FBI, and The War on Democracy. It's a fascinating read. Thank you so much. On with Kara Swisher is produced by Christian Castro-Russell, Kateri Yochum, Jolie Myers, Megan Burney, and Sheena Ozaki. Special thanks to Kate Furby.

Our engineers are Rick Kwan and Fernando Arruda, and our theme music is by Trackademics. If you're already following the show, you are part of the Deep State. If not, you're as dumb a jurist as Eileen Cannon, and that's pretty dumb. Go wherever you listen to podcasts, search for On with Kara Swisher, and hit follow. Thanks for listening to On with Kara Swisher from New York Magazine, the Vox Media Podcast Network, and us. We'll be back on Thursday with more. Support for this podcast comes from Stripe. Stripe is a payments and billing platform supporting millions of businesses around the world, including companies like Uber, BMW, and DoorDash.

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