Pod Save America - "It's Cohen down for real."

Episode Date: August 23, 2018

The President has been implicated by his lawyer in a crime that involves the cover-up of extramarital affairs through illegal campaign contributions, and Republicans in Congress refuse to do anything about it. Then CNN legal analyst Jeffrey Toobin joins Jon and Dan to talk about what’s next for the Mueller investigation, the Kavanaugh confirmation battle, and his new podcast, “RBG: Beyond Notorious.”

Welcome to Pod Save America, I'm Jon Favreau. I'm Dan Pfeiffer. Today on the pod we're going to talk about the fact that the President of the United States has been implicated in a felony. Jeffrey Toobin of CNN and The New Yorker will join us to talk about the legal implications, while the two of us will scream into the microphone about the political implications. Big pod today, Dan. Big pod. I've been very excited about this since about midday Tuesday. A few housekeeping items on Pod Save the World this week.

Tommy talks with former acting CIA director Mike Morrell about President Trump's decision to revoke the security clearances of former officials like John Brennan. Morrell explains why this decision to politicize intelligence is so risky and why some spy operations are so sensitive and closely held that former officials like John may be the only ones who can explain them to the new CIA team. So check that out. In the latest episode of Cricket Conversations, Ben Rhodes talks to Tommy about Benghazi and how that moment led to Trump as president and what it's like running the deep state, as Ben does. That clip is going to be used against Ben in his trial to send him to Gitmo so we should just note for the yeah let's clip that let's we should we should cut that or not but whatever oh no let's definitely leave it in um it's the final installment of Ben's series of conversations this month exploring the deep state now exploring the issues and themes central to his memoir the world as it

is it was a fantastic series on crooked convos and if you haven't heard enough of Ben Rhodes you can hear him on episode 10 of the, which is about one of his very favorite subjects, the blob, our nickname for the foreign policy establishment in Washington, D.C. The whole episode explores how Democrats can avoid conventional thinking on foreign policy and what a new era of American leadership might look like. Fantastic episode. Check it out. Can I, before we move on to other good news, can I blow a little smoke up your ass? Please do. Always time for that.

Yeah. I figured we could slap that into the outline in the last minute here. Look, I just want to say, as not just your friend and colleague of many years, but just as someone who consumes

a fuck ton of political media, that The Wilderness is just superb. It really is. Thank you. It is the kind of content that we do not get about politics. It is contextualizing. It is smart. It includes this incredibly diverse array of voices within our party. And it takes on a lot of really hard questions that, not just about our party, but also about what we were involved in and where Obama succeeded and where he didn't. It's just it's really, in addition to the fact that it puts my daughter to sleep, which is a huge bonus, but it is. Bonus for parents.

Yeah, but it is really a tremendous achievement, and you should be very proud of it. Well, thank you very much. Positive America listeners, go check it out. I know there's a whole bunch of you that haven't heard it yet, and that's okay. It doesn't fit with the news cycle, so you can check it out at any time. If you're looking for some content on a sleepy Sunday, check it out. But yeah, I don't think you'll be disappointed. And if you are, you can yell at me about it. Okay, let us get to the news. On Tuesday, Donald Trump's personal lawyer, Michael Cohen,

played guilty in a New York courthouse to federal crimes that implicated the president himself as an unindicted co-conspirator to multiple illegal campaign contributions. While this was happening, in the same couple of minutes, a jury in Alexandria found Trump's former campaign manager, Paul Manafort, guilty of eight counts of financial crimes, a massive development into special counsel Robert Mueller's investigation, which has issued more than 100 criminal counts against 32 people and three companies that has now led to guilty pleas or convictions that include Trump's campaign manager, Trump's deputy campaign manager, Trump's national security advisor, Trump's personal lawyer, and Trump's foreign policy advisor. So many witches. Dan, where were you when this all went down and what were your first reactions? I was home and as I am often these days and I was watching it. It was like a quadruple screen experience. I had CNN on. I was following Twitter on my phone. I had my laptop up so that the multiple conversations that are happening either in the Crooked Media Slack or various Obama alumni text chains, just the minute by minute, just accounting of what's going to happen.

There were highs and lows. There were moments in which we thought Manafort was going to get off and that what Cohen would agree to or testify to would be much less significant than this. And it basically was the political equivalent of what most else of America does when there's a really exciting car chase happening. It was riveting. It was absolutely riv riveting one of those moments where you needed a whole

bunch of screens in front of you because there needs to be like a screen for each trump official who's being indicted you needed the you needed the ipad you needed the phone no it was funny the slack channel was funny at cricket media because we had quite a roller coaster of emotion there at the you know At the beginning, said, oh, this is going to be good. And then they were like, well, Cohen's not going to cooperate. He's just going to plead guilty. And then you were very dark. And then Brian Boitler said, it's going to be a good day. But we decided that it was very good that you were pessimistic about the whole thing because when you were pessimistic previously, which is most of your life, we won two presidential elections. When you suddenly briefly became

optimistic in 2016, we lost. So it's good to see you back at the dark side again. Yeah, I tried on optimism for just a brief, brief moment and it went horribly wrong. I do think – have you ever seen the 30 for 30 called June 17, 1994 about like this day in sports when all these crazy things happened? It was opening the World Cup. Oh, yeah. The NBA Finals was happening. I haven't seen it, but I know about that one. Yeah, and there was a Stanley Cup game and then it all was overshadowed by the OJ chase. Right. And like this,

like yeah, Tuesday felt like the political version of that day. It was all happening at one time and moments that I think as we think about the Trump era, if it does not, if he does not cancel all the elections

and just be rule as a intemperate dictator for the rest of his life, we will look back at this as this pivot moment where all these really, really important things happened across the board. Like it was not even,

we'll talk about some of these things, but there were like things that would have led the news in any other scenario that were buried because they happened on this day of this where it was crimes on crimes on crimes. So let's go through each of Tuesday's developments from big deal to bigger deal to biggest fucking deal um first muller and michael flynn jointly requested this week

that flynn's sentencing be delayed uh this was definitely under the radar after everything else that happened um flynn trump's former national security advisor has admitted to lying to the fbi and has been cooperating with mull late last year, something people forget. And the filing seems to indicate that Flynn still has information that could be useful to Mueller's investigation and is still providing that information, which is why they are delaying the sentencing. The other possibility, I guess, for delaying the sentencing is that the sentencing would reveal something that Mueller does not want to be made public yet. Anything else interesting on the Flynn thing for you, Dan?

I think it's just we live in a world of cascading crimes that we sometimes forget about the other crimes. And so it's worth noting that Flynn, what he knows about, right, in addition to being a foreign policy advisor to Trump throughout the campaign, at the time in which collusion has been alleged, he is also someone who is very close to Russia, and very close to the Russians. And most importantly, and like this should remain one of the biggest, most controversial and biggest red flags about this administration, but we forget about it because it happened a long time ago, is that Flynn was intimately involved in having conversations with the Russians before, after Trump won, but before he was sworn in about potentially undoing the sanctions that Obama had put in place to sanction Russia for helping Trump win the election, and also the opening of a secret back channel between the Russians and Kushner to help evade U.S. law enforcement intelligence services. These are huge red flags, things that Flynn has first-person knowledge of and that he is apparently telling Mueller about. So we forget about Flynn because we're so focused on Cohen and Manafort, but in the Russia part of the investigation,

he is sort of the Rosetta Stone. Yes, yes. I would say that opening a back channel of communication to the hostile foreign government that influenced our election with the purpose of electing Donald Trump is certainly a red flag. We're not even mentioning the fact that he was also potentially involved in a plot to kidnap a Turkish citizen on American soil and return them to Turkey for money. So there's also the kidnapping ransom for hire scandal that he was alleged to be involved in. Who hasn't been involved in a little kidnapping plot, right?

That goes on to serve in the highest level of the government? I mean, how many national security advisors? Kids these days, right? Tom Donilon, he had a couple of those, I know. Okay, let's move on to Manafort, who was convicted on eight of 18 counts, a list of charges that included five counts of tax fraud, two counts of bank fraud, and one count of failing to disclose a foreign bank account. two counts of bank fraud, and one count of failing to disclose a foreign bank account. The jury couldn't come to an agreement on the other 10 counts because apparently there was one holdout. Everyone was 11 to 1 on all the other 10 counts, but there was one holdout.

And so basically the government now has to decide whether they want to retry those 10 counts. But even if they don't, even if they choose not to, the pain certainly isn't over for Manafort, who is also set to stand trial next month in Washington, D.C., on more than half a dozen other charges, including conspiracy to launder money, failure to register as a foreign agent and obstruction of justice. Trump tweeted on Wednesday that he feels, quote, very badly for Manafort and his family. Quote, this is his tweet. And then he put, of course, this words in quotation marks as you do justice took a 12 year old tax case among other things applied tremendous pressure on him and unlike michael cohen he refused to quote break make and then he said make up stories in order to get a quote deal such respect for a brave man a large number of counts 10 could not even be decided uh we of course first of, one big lie in that whole

thing was it wasn't a 12-year-old tax case. The fraud was committed in 2016, among a couple of other years, 2014, 2015. And of course, we also heard on Fox News when Donald Trump sat down for an interview there, he basically didn't say yes or no when asked whether he was considering a pardon for Manafort. He just said, you know, he's been treated very fairly and sort of demurred. Dan, how big of a deal is the Manafort conviction? And what do you think comes next here? I mean, it is just worth noting that the president's campaign manager, who stayed in touch with the administration and was in the position of influencing administration hires was convicted of eight felonies and stands trial for more.

The president's campaign manager is a convicted felon. Now, insert the names David Plouffe, Robbie Mook, and the Republican Party would be filing impeachment articles against Barack Obama or a hypothetical President Hillary Clinton. This is a giant deal on its face. Even if it tells us nothing else about collusion, the potential campaign finance violations we'll talk about shortly, it tells us nothing else. The president of the United States has a disturbing habit of hiring and hanging out with criminals. And that should raise that should also raise some red flags to American people. Like, I don't know how many criminals you hang out with. I mean, so, you know, one one of the many Trump reactions and what Trump White House reactions to the Manafort news is, well, these were, you know, these were crimes he committed that have nothing to do with Russia.

Forget about Russian. It has nothing to do with Russia collusion. Everything's supposed to be a Russian collusion. And that isn't even true. Right. So our friend Norm Eisen and a few others wrote this op ed in The New York Times. They said the trial evidence included Mr. Manafort's close ties to pro-Russia forces and his desperate financial straits as he volunteered his time for the next president. his desperate financial straits as he volunteered his time for the next president. He offered briefings to a pro-Russia Ukrainian oligarch and dangled a position in the Trump administration in front of a banker who provided him a loan for which he would not otherwise have qualified. So it does seem like with this trial and with these charges, Mueller is setting up a story here about Paul Manafort as this person who was deeply in debt to pro-Russia forces and then

out of the blue said, with all this debt that I have, I am going to volunteer for free to work on the Trump campaign and help them. And also, by the way, of course, he was in charge of the Republican National Convention that year and the platform and instrumental in changing the platform to a more pro-Russia platform when a whole bunch of other Republicans and conservatives in the party disagreed. So a lot of coincidences there, I guess. Yeah. When you tell that story that you just told, which we lose in the moment by moment, Twitter

outrages and the things that happen, it is an incredibly compelling and concerning story that, you know, like we've said this a thousand times, but it is not always true that when there's smoke, there's fire. But there has never been in the history of time this much smoke and no fire. Yeah. So the question of what happens next to Manafort, his defense attorney, Kevin Downing, said that his client is client is quote evaluating all of his options at this point I don't I don't know how much time that's going to take the problem is with for Manafort is he has less leverage now because he is already been found guilty on eight counts and the amount of jail time he could get for those eight counts even at the least is looking at you know seven eight nine ten years the guy's 70 years old um it's a very easily he could be looking at a life sentence here so and that's even before the second trial he's about to have in dc where the evidence is even

more overwhelming and now he goes into that trial having already been convicted of eight counts, which doesn't really help. So he seems pretty fucked. Yeah, he's got he has three choices. It seems like go to jail for the rest of his life, cooperate and go to jail for a good portion of the rest of his life or hold out hope that Donald Trump will pardon him. And he seems to be leaning to the latter. And Donald Trump, through his – I mean, it's just crazy. Just also imagine this world where another president's campaign manager was convicted of eight felonies for tax evasion, and the immediate reaction of the president was to tweet nice things about him.

Right. And it seems like if you're Paul Manafort, you see that tweet, you're like, maybe if I hold that a little bit longer, I'll be pardoned and therefore spend none of the rest of my life in jail. And so there's a chance he may take that path. It seems to be the path that he has been on from the beginning. And it is also worth remembering, because we can never remember all the things that happened, is that we know from reporting that John Dowd, when he was

Trump's attorney, spoke to Michael Flynn's attorney and raised the prospect of pardons. And so it is also possible that someone close to Trump or one of Trump's attorneys has raised the prospect of pardons for Manafort as well. So he may be waiting. I mean, it's not even reckless speculation, but he very likely could be waiting for someone to wait for Trump, who has already pardoned people like Joe Arpaio and Dinesh D'Souza. So pardoning horrible people is something that he seems pretty comfortable with. And look, we're going to talk about sort of what happens if Trump does pardon Manafort. But even before we get there, it's worth asking why Trump thinks it's a good move to pardon Manafort when pardoning him will help Paul Manafort, obviously. But it doesn't help Donald Trump in the sense that

if Paul Manafort is pardoned by Donald Trump, Paul Manafort could then be compelled to testify against Donald Trump by Robert Mueller. And he cannot take the fifth at that point. And if he lies under oath, then he is guilty of a new crime, which I guess I guess apparently, you know, Donald Trump could just pardon Paul Manafort in perpetuity. He pardons him. He testifies against him. Paul Manafort lies. He perjures himself. He gets convicted again. Donald Trump convicts him again. I guess we could just, you know, pardon Paul Manafort for a long time. But I don't quite know why Trump thinks it's a great idea to pardon Paul Manafort, even aside from the political implications of what it looks like to pardon your former campaign manager,

who basically was just convicted of stealing $10 million from the American government by not paying his taxes and defrauding the government? Well, the answer to your question would be Donald Trump is an idiot advised by idiots. You know, that's always your best bet when you don't know what's going on. When you know the real answer that the probable explanation is we are run by fucking morons. All right, let's get to Cohen. The big one. Cohen admitted on Tuesday to violating campaign finance law during the 2016 campaign when he made payments to two women who alleged to have had affairs with Trump. And then, as he stood up in court, Cohen said that he did this for, quote, the principal purpose of

influencing the election, and that he was directed to make the payments by the President of the United States. Others implicated in the court documents include the Trump Organization, American Media Incorporated, and the National Enquirquirer and one or more members of the Trump campaign. According to the Wall Street Journal, quote, David Pecker, the chairman of American Media Inc., which publishes the National Enquirer, also provided prosecutors with details about payments Mr. Cohen arranged with women who alleged sexual encounters with President Trump, including Mr. Trump's knowledge of the deals. So now here we are on Thursday. It is not just Michael Cohen's word against Donald Trump's.

David Pecker has now also been granted immunity by prosecutors, and he apparently has evidence and has provided evidence, not only that Cohen made these payments, but that Trump knew about the payments. And of course, even if you don't believe Michael Cohen or David Pecker, Trump also did a Fox interview where he admitted that he knew about the payments and admitted that the payments were a campaign expense, thus essentially confessing a crime on national television, which is Donald Trump's favorite place to confess crimes in front of the nation. Dan, how big of a deal is this?

We ask that question a lot. And oftentimes the answer is not that big a deal. And this seems like a big one. Yeah, this, as we often do, quote, for Vice President of the United States, Joe Biden, this is a big fucking deal. It is a giant deal. And there are different dimensions to look at how it's a giant deal.

So there's the legal dimension. There's the political dimension. And then there's just the dimension of American history. So let's start with the last one. So this – we now have the president of the United States as a de facto unindicted co-conspirator in multiple felonies. in multiple felonies. And that has been testified to in court with enough evidence that has been presented by federal authorities. And that is something that has not happened in the United States history. It is a huge deal. The president of the United States is implicated in a felony. And no matter what else happens in 2018 and 2020, we will look back, presuming we

survive as a nation, at this moment, and we are in Watergate territory now. This is not reckless speculation. This is not Louise Mensch-style impeachment eagle stuff. We now have the president of the United States implicated in a felony to influence the election. And for all of the fucking numbnuts like Matt Schlapp and others who say, well, there's nothing about Russia in here. It is also illegal to collude with an American citizen to influence an election. And that is what has been alleged about Donald Trump. So this is a gigantic deal. And I know we will move on to the next absurdity or Omarosa will put out a videotape or something absurd. But this is a critical historical juncture for how the Trump presidency in this era in American politics will be viewed for the rest of time.

Yeah. And look, I mean, Chris Hayes put it well, too. He tweeted the other day, you know, the president was accused in federal court of ordering the commission of a crime, which was the successful attempt to cover up damaging information days before an election he narrowly won. So this, I mean, we talk about, you know, collusion here and influencing an election. We forget that the whole crime here was not just some campaign finance violation. It was deliberately covering up information from the American people that could have influenced the election. They could have led to an election that was won by 77,000 votes across three states. Yeah, that's exactly right. Let's talk about Donald Trump's response. He had one good response and all the rest were quite bad. So let's start with the good one.

His tweet yesterday morning, Wednesday morning. If anyone is looking for a good lawyer, I would strongly suggest that you don't retain the services of Michael Cohen. Which I have to admit was a genuinely funny tweet from the president of the United States. Okay. You can admit that. You're grading on a curve here for funny. Right. Right. So in a more serious note, what do you make of Trump's official response during the Fox interview that the payments were his money, not campaign money? It is the president is dumb. I don't know. He is stupid. He just he doesn't know anything. And he chooses to remain stupid because one of the ways in which you stop being stupid is you read things and he doesn't believe in reading. I would note that the president of the United States believes that

reading is a waste of time. That's pretty cool. But he spent the entire campaign basically lying about how he was going to self-fund his campaign. He would not be owned. He would not owe anything to the donors and the rich people. So he was different than Jeb Bush or Marco Rubio who were out raising money and had billionaire super PAC supporters and all of people. So he was different than Jeb Bush or Marco Rubio, who were out raising money and had billionaire super PAC supporters and all of that. Because he was a self-made man, he was going to spend his money. And then he raised money. But if the money comes from you, that is also a campaign expense. You have to report if you give money to your campaign. You can self-fund your campaign, but it has to be reported because that is the whole point of the system is that candidate is that the public has a right to know who gave the money, how the money was spent, and what it was spent on.

And that – so it doesn't matter whether it was from the campaign account or Trump's wallet. They were one and the same, and we know this because he told us he was self-funding his campaign. And we know this because he told us he was self-funding his campaign. So as you pointed out, he doesn't – he is too dumb to know the crimes that he is admitting to. Yeah, and it's not just that he's too dumb. It seems that he's been advised this too. I mean Rudy Giuliani had made that point on television months ago, right, that somehow the fact that it was Trump's money and not the campaign money exonerated him when that's actually the act that incriminated him. I mean, this is like these people don't have a basic understanding of election law, or they do and they're lying to us, or some combination of both.

So another response from Trump in the White House now has been, oh, Obama did it too. They said Obama had a massive campaign finance violation, but that he had a different attorney general who didn't come after it. Dan, what's the response to that? What's the story with the Obama campaign finance violation? Well, the FEC fine the Obama campaign paid was for failure to notification about money that was raised in excess of people's limits. And it was an accounting mistake that was not handled right, and they paid a fine to the FEC as a settlement. That has nothing to do with Barack Obama himself.

There's no implication that he directed anyone to do that. And what we have here, I would note again, is the testimony of the president's lawyer and fixer in open court that the president directed him to make these payments in violation of election law. And so these are very different. This is something about, look, if the Trump campaign had raised, which happens sometimes, people donate more than they're allowed to do because they don't keep track of their donations or they don't know what the limits are. And maybe there's an accounting screw up here or there. And there's a difference between the campaign organization making a mistake, as many have done, and the President of the United States, the candidate himself or herself,

knowingly directing the commission of a crime. Yeah. And like I said, it's one thing to sort of misreport. That happens all the time. You misreport a campaign donation or you donate it too late or something like that. This was much more of a conspiracy in that they were trying to bury information. They were trying to specifically hide the campaign donation, not for a certain period of time, but forever.

And it was also way past the legal limit, way past the legal limit, which is why they set up fake shell companies to hide this whole thing. Yeah, that was a real clue that this was not – that they went to my home state of Delaware to set up a shell company to hide the donation. That is an indication that maybe they were trying to keep it secret. Right, exactly. So other responses from Trump in this Fox interview, which was just amazing.

He said what Michael Cohen pled to weren't even campaign related. They weren't even crimes. Of course, that's not true. And then he he also said this. And we have some tape of this of about Cohen, basically what he said in his guilty plea implicating the president of the United States. It's not fair because if somebody's going to give, spend five years like Michael Cohen or 10 years or 15 years in jail because of a taxicab industry, because he defrauded some bank, the last two were the tiny ones. Campaign violations are considered not a big deal, frankly.

But if somebody defrauded a bank and he's going to get 10 years in jail or 20 years in jail, but if you can say something bad about Donald Trump and you'll go down to two years or three years, which is the deal he made, in all fairness to him, most people are going to do that. And I've seen it many times. I've had many friends involved in this stuff. It's called flipping, and it almost ought to be illegal. I mean, he sounds like a fucking mob boss.

He sounds like the dumbest mob boss you ever met. Like, what? He also, by the way... So, aside from trying to make cooperation with prosecutors illegal um or thinking that it ought to be legal uh he then goes on to say uh about impeachment i guess the constitution says something like high crimes and all i don't know how you can impeach somebody who's done a great job. Then he said the stock market would crash if he were impeached. I mean, it is unfathomably stupid, every part of it. We have elected as president of the United States to lead our country and large parts of the free world. We have elected an idiot criminal.

Like that is what it is. Like it sounds harsh, but if you are a person who knows who follows the news, who knows about the law and you listen to the interview, you can't possibly think this person should lead our country. You can tell yourself that it is OK to have this idiot criminal lead the country because he will pass tax cuts and try to take health care away from people. And that's your abiding passion in life, Paul Ryan. But it is – like I tweeted once in the middle of some insanity that this – that the Trump White House was the plot of House of Cards with a cast of Veep. And I've been beating this dead horse of a joke into the ground ever since with, you know, after Paul, after we saw all the money laundering that Michael Cohen did, I said it was the plot of Ozark with the cast of Veep. It is now the plot of Sopranos with the case okay so let's talk about the republican response to all this beyond trump um you mentioned match lap and some of our favorite uh awful conservative commentators um one one big response has been there's been no collusion this was all supposed to be about Russia, and it's not about Russia.

Basically, this is just light treason, JV crimes. The president is allowed to commit any crime he wants as long as it's domestic. Just got to keep it at home. What do you make of this whole attempt to say that unless there's, you know, evidence uncovered of, you know, Donald Trump calling up Vladimir Putin saying, hey, let's steal an election together. The president is allowed to do whatever he wants. Yeah, that's where we are. That is the Republican Party of today.

On Tuesday, as we have said again, and I will say every day until Donald Trump is in office, that the president was involved in the commission of multiple felonies. The reaction to that is to shrug their shoulders at that. I think they have – they are not a party, a political party anymore. They have – are nothing more than a collection of supplicants who are in it to line their own pockets. And so I don't think that matters, but it is, it's just worth noting that in a normal world with a, our founders, maybe naively, but anticipated three functioning branches of government, that even that this would open an investigation from Congress, because if where

this ends is the president, the only legal recourse, the only way justice can be served, the only way to find out what happened and decide whether and to hold a trial, to hold the president accountable for crimes is within the congressional process of impeachment. Your first step would be to open a process to investigate. And they have not done that. And they will not do that. And they will not do it because they care more about their party than their country. And that is a hard thing to say about people. But the evidence is fucking overwhelming that that's the case. And it has been for a really long time. And I will say, and this is, you know, it was stunning watching the news on Tuesday.

And we sort of, we could have guessed this was how the Republicans were going to react. Of course we could have guessed this. We've been talking about how they would react like this for months. And yet when it actually happened, I was still able to muster the sense of like shocked outrage. Which I know seems naive because i knew they would do it anyway but watching it happen is still so fucking disappointing and it's not just like you expect it from the hannity's and the trump aides in the white house and his you know staunchest allies in congress and you expect it from fucking paul ryan who pretends he hasn't read the news and Mitch McConnell, all the rest.

But there was not one of them. There's not one fucking Republican in Congress who was elected, who has said so far, let's open an investigation into the fact that the president of the United States was just implicated in a fucking felony. Not Susan Collins, not Jeff Flake, not any of them, not Bob Corker, not the most moderate Republican in the most moderate swing district. And by the way, I didn't see a whole bunch of Democrats saying, let's open up an investigation into what happened. Now, that's probably because they can't do it. They don't have the power to do it. But it seems amazing to me that here we are on Thursday. This news happened on Tuesday. And it's like nothing has happened in Congress about this.

The president was implicated in a federal crime. Nothing has happened. As a society, we have become comfortably numb to the criminality of the president of the United States. We expect this from him. This is the soft bigotry of low expectations for Trump. And the one thing that I do think, we talked earlier about how big a deal this moment was. The one thing, forget what the Republicans did, forget what the pro-Trump media did. I do think that at least for the press, this was a pivot point that's going to be hard for Trump to go back on. Because up till this point, the basic approach of everyone in politics, with the exception of very partisan Democrats, was on all things, whether it is financial crimes,

collusion, campaign finance violations, that Donald Trump was not guilty by reason of stupidity. Because everyone believed that he was too dumb to hatch a conspiracy. His staff was too stupid to be involved in a conspiracy. So he had this presumption of innocence. And I think that has started to go away. And you saw that in how the White House briefing was handled. You saw that in the front page of the New York Times on Wednesday morning. And that is problematic for Republicans just in the long run, because the consequences, even with the independent voters who are going to decide some of these districts that Trump won, this makes it harder for them. This does, this creates a bigger permission structure for on the fence voters, for grads voters, as we would call them, to elect Democrats as a check on the culture of corruption and criminality in Trump's Washington. I think that's right. I also think, I mean, by making this whole case that,

you know, there hasn't been any collusion, Mueller hasn't found anything yet. All this for nothing. I will say the Republicans are also setting themselves up for potential disappointment when Mueller does finish his investigation and does, in fact, find evidence of a conspiracy with Russia. So that could be a problem. And also, like, I sort of understand why, you know, you could get away with saying, all right, obviously there's potential criminality here. The government seems to have documents which suggest that the president of the United States directed this crime. But let's wait for Mueller to finish his investigation. We'll do it all at once.

Like, OK, I guess. But also this idea that they're setting it up for like Mueller finding nothing is crazy. But also this idea that they're setting it up for like Mueller finding nothing is crazy. Cohen's attorney, Lanny Davis, has been all over TV saying that Cohen is willing to testify before Congress without immunity. And Davis also told Rachel Maddow on Tuesday night that Cohen, quote, has knowledge on certain subjects that should be of interest to Mueller's team. Davis said Cohen is more than happy to tell the special counsel all that he knows, quote, not just about the obvious possibility of a conspiracy to collude and corrupt the American democracy system in the 2016 election, but also knowledge about the computer crime of hacking and whether or not Mr. Trump knew ahead of time about that crime

and even cheered it on. Davis also says that Cohen was present at a meeting with Trump and Don Jr. where they talked about the famous June Trump Tower meeting. He also, by the way, said to Jonathan Swan of Axios that Cohen still does not know if Trump had advanced knowledge of that meeting, which was a CNN report from a month ago. So I'm a little confused about that. He seems like he seems to be saying that Cohen does not know if Trump had advanced knowledge of the meeting. And yet Cohen was at a was at a meeting where Trump and Don Jr. discussed that meeting. So I guess we'll figure that out. But what do you make of all this Lanny Davis stuff that he's out there talking about that Cohen wants to cooperate with Mueller and, by the way, has info on Trump knowing about

the DNC hack? I mean, it would be very alarming to me if I was Donald Trump or one of his minions. You know, it is always hard to tell. I wouldn't say this is out of character for Lenny Davis, who's a particularly flamboyant, media-hungry spinmeister. It seems likely that Michael Cohen knows a lot. There are other crimes here, right? There is also a state investigation in New York about improprieties within the Trump Foundation that Michael Cohen probably knows a lot about. Oh, right. knows a lot about. There are just general property and business deals, larger tax issues that Michael Cohen probably knows a lot about, ways in which Trump may have tried to hide money. He just knows a lot and he seems willing to unburden himself, which is probably why Trump,

as you just pointed out, believes now that it should be legal for people like Michael Cohen to testify against in exchange for leniency. And so, yeah, it should be very concerning. Look, I think we should set our expectations in the right place. And he may not know everything. And we still – we've already, as a political culture, set the bar too high for what we expect and what we feel like we need to somehow get Trump out of our lives. And because this happens every day and we're distracted by tweets and like Trump taking away security clearances and all of that, that every day, sort of the Republican Party, aided and abetted by the media in some ways moves the line about what that trump cannot cross

back a few inches right like if you would look like if you had presented what we know now to the republicans in january of 2017 if you had said to him look i know you guys are pro-trump you're concerned but you're you know you're concerned, but you're concerned about this, you want to see evidence. Hypothetically, if what we just learned on Tuesday happened, would that be an offense that would be worthy of considering impeachment? People probably would have said yes, unhypothetically. But we've slowly moved it back to the point that it is uncrossable, which is why it always comes back to the fact, and this is so important, that this is interesting. It is important. It is important that we know what happened in this election. It's important that we know what Trump is doing and has done, what crimes the president and are victims of those crimes, which are the American people. But at the end of the day, we are no more likely that for the Republicans in Congress to remove Trump from our lives than we were before the Cohen, Manafort, and Flynn news we spent the last hour talking about. It still comes down to voters. We're the only people who

can do this. We're the only people who can put Democrats in power who are actually open investigations to find out what's really happening. We're the only people who can defeat Trump because Donald Trump is the head of a Republican Party that is completely comfortable with keeping a criminal in office as long as he continues to sign their bills and raise money for them. as long as he continues to sign their bills and raise money for them. Rotten to the core is the modern Republican Party. I mean, just to give people an idea of what a hill we have to climb here with some of these Republicans, here is one of the most senior members of the Republican Party, Orrin Hatch, senator from Utah. Here's his quote about what happened over the last couple of days. Eight to 10 years ago, Trump was not what I consider to be a pillar of virtue. I think he has changed a lot of his life once he was elected. I think Trump is a much better person today than he was then. I think

most people in this country realize that Donald Trump comes from a different world. He comes from New York City. He comes from a slam-bang difficult world. It is amazing he is as good as he is. If anything, you have to give him plaudits for the way he has run the country as president. This is the quote from a senior Republican senator two days after the president of the United States was implicated in a felony. I would like to see the mental image that Orrin Hatch has of New York City. Is it like straight out of The Godfather? It is amazing. He came from this swamp of criminality and is able to write his life. I mean, it has been almost two years since he paid hush money to cover up affairs in order to help influence an election.

I mean, let's is there a Nobel Prize for morality? Let's give that to him. I just these Republicans in Congress are these are the most pathetic people in in the country. I mean, I just like just to give you an example, too. I thought it was really fascinating. I don't I just like just to give you an example, too. I thought it was really fascinating. I don't know if you saw this story. Fox News found a Manafort juror to interview. And this woman turns out, of course, since Fox found her, is a huge Trump fan. She had her, you know, she posed for a picture with a MAGA hat. She said she had it in her car every day on the way to the trial.

She said she's going to vote for Donald Trump again in 2020. She said that she believes that the Mueller investigation is a witch hunt. So all of that's not that great. It is evidence that Donald Trump's public comments on this trial about him are poisoning jury pools everywhere. And yet, this is what the woman said to Fox. Finding Mr. Manafort guilty was hard for me. I wanted him to be innocent. I really wanted him to be innocent, but he wasn't. That's the job of a juror. You have to have due diligence and deliberate and look atfort, Trump's campaign manager, was guilty. And she was fine doing that. These congressmen are part of the Republican Party. They can't even bother themselves to hold a hearing and investigate this because they are such pathetic supplicants to Donald Trump.

It is the worst thing I've seen in politics. Yeah, they have broken government. They have tried to break politics and we have to beat all of them. Every single fucking one of them. And we have to send a message because the stakes are so incredibly high. It is easy in the midst of the craziness to lose track of the very real threat that the country faces right now. This is a threat to our democracy, how we see ourselves as a nation, what the idea of American government really means. And that is what is on the ballot in 2018. And that's what

on the ballot in 2020. And if we get this wrong, we may not come back from it. America will still exist, but it'll be different. And I know that sounds fucking hyperbolic, but we have to understand that we have a system of government that counted on two functioning parties and three functioning branches. And right now we have very little of both of those. We have the Republican Party, which controls all the levers of government, including the judicial branch, frankly, is broken. It stands for nothing. It means nothing. It is only about the acquisition and maintainment of power and nothing else. And when that happens and you pair that with a dangerously unfit, irrational, criminal president of the United States, it's a huge. It's not great, John, is what I would say. It is not great. huge. It's not great, John, is what I would say. It is not great. Well, I mean, this is a good segue into how Democrats should respond to all of this,

which I have very, very intense thoughts on for watching this unfold over the last couple of days. In The New York Times, we'll start with this. In The New York Times, Republican strategist Rob Stutzman said, quote, I think impeachment is now squarely going to define the midterms. It's inescapable now that Democrats can legitimately raise that issue. We also had conservative columnist Brett Stevens say that Trump should be impeached. And yet there's a BuzzFeed story yesterday where a bunch of Democratic strategists are saying Democratic candidates should stay far away from impeachment talk. Pelosi, Nancy Pelosi, the other day said impeachment is still not on the table. Dan, what's your take here? Should

Democrats be arguing for impeachment? No. They shouldn't. Let me offer some, before my mentions are destroyed on Twitter, let me offer some context here. If I were a member of Congress, I would vote to impeach Trump. I think he has committed impeachable offenses. But the problem we currently have is it is a political exercise with no actual outcome because the idea that they will be a check on the corruption and the criminality and that they will open hearings and get to the bottom of this. And if at the bottom of this we find hard proof of impeachable offenses, which I think is highly fucking likely, then that should be on the table. But I think it is a step-by-step process. And part of the challenge here is we have a very compelling argument to make to voters about health care and taxes in the economy. And you can see how you can get wrapped around the axle on this specific issue.

So I think it is a step-by-step process. We should very much make the point that democratic control of the House means getting to the bottom of things Republicans won't get to the bottom of, because we are going to be a check on that. That is what we are going to do. We have seen what happens with Republican control of Congress. You have people like Duncan Hunter and Chris Collins getting indicted for massive corruption. You have half the Trump cabinet resigning in disgrace. You have the president of the United States being implicated in a felony. And we are the change. We are the reform. And we are going to be a check on that. That's how I would think about it. So I have a slightly different take

here. It's a little nuanced on the impeachment question. So I think that there is a difference between talking about impeachment, making impeachment your message, and being in favor of impeachment if you are asked the question. And so I was not, I had this debate with Brian Boitler a couple months ago because Brian's take a couple months ago was Democrats should not be afraid to say, if asked, that Donald Trump should be impeached. And I said, well, you know what? There's been a ton of good reporting that would lead us to believe that he should be impeached. And I said, well, you know what? There's been a ton of good reporting that would lead us to believe that he should be impeached. There's been evidence unearthed already through good reporting and through already what Mueller has come out with that Donald Trump should be impeached. And yet there has been no legal action

that has implicated the president in a crime. And I was saying to Brian, I think we need to wait for that before we can say, for politics aside, just from a legal constitutional basis, you need some sort of legal action that implicates the president in a high crime or misdemeanor before we can say that he should be impeached. That legal action has now happened. And the president cannot be indicted under DOJ guidelines as they are written, a sitting president can't be indicted. And one of the reasons he can't be indicted is because we have decided as a country that the remedy for a president's misconduct is impeachment. And now we are faced with the need to use that remedy because it is the only

remedy we have to hold this man accountable. And I also think that people confuse sort of impeachment as an outcome versus a process. Saying that you're for impeachment doesn't mean, yes, I vote to convict Donald Trump of the crimes. It is a process to say, OK, since we can't indict a sitting president, we have to have a trial in the Congress where the president can still refute the charges, can still prove that he is innocent. But at the very least, this is our ability to hold this president accountable, this process that has been laid out in the Constitution. remedy because we're what scared of polls scared of what strategists are telling us then what happens when he decides that he can commit another crime because everyone let him get away with the last one i mean these are slightly different takes with the sort of the same point i think

it's also for people to understand how the impeachment process works right yeah so the how this would work is the house would draw up articles of impeachment and they would have hearings, right? And so the vote – and we know this because this happened in the Clinton administration to Bill Clinton, which I would recommend people listen to the next season of Slow Burn, which looks at the Monica Lewinsky case. And so it is actually – it's superb. Fantastic. But it also is a good primer for a lot of what's happening – for the context of what's happening right now. And it's hard to listen to it and not realize that the parallels between what Republicans voted to impeach Bill Clinton for and the very minimum of what Trump has been accused of in simply the Cohen allegations are quite similar. But point being is that if the House were to impeach Trump – so you begin the process. You have impeachment hearings. There is a vote at the end.

That is essentially the political equivalent of an indictment. He has been – like it is for sure a black mark on your standing in the Hall of Presidents at Disney World, but it is simply the decision to begin a trial in the Senate. to begin a trial in the Senate. And so the way I would think about this as a House Democrat running for re-election or a potential or a candidate running is you sort of need probable cause. It is a big deal to begin this process in the House. And you need sort of the equivalent of probable cause. And that can take two forms. That could be Mueller's report. So you get Mueller's report. If you get Mueller's report. If it is compelling enough that you think it needs to have further investigation, then you have those hearings. And at the end of the hearings, everyone will get to make their case. People will testify.

And then you will decide how to vote. And Republicans will get to vote. Democrats will get to vote. There will be people testifying on both sides of the issue. It is essentially – it's a grand jury hearing in the House. And the other piece of probable, we now have, to your point, another piece of probable cause, which is you have an allegation under oath with corroborating evidence, apparently, that the President of the United States directed the commission of a crime that influenced the election. And so that is another reason to look at it. But I think the point for Democrats is we are going to be the ones who get to the bottom of this because Republicans have been unwilling to do their jobs that are paid for with your tax dollars.

We're going to look at the question of obstruction of justice, the question of collusion, the question of Michael Cohen's allegations. We're also going to look at corruption, emoluments, all of the things that we feel people, the Trump administration, Republicans in Washington, getting over on the American people. We want to look at that. And if we find things, then we will either, in the case of the president, have a vote on impeachment or in the case of other things, make referrals to the Justice Department for prosecution around what Scott Pruitt may have done or what Tom Price may have done or people in the Trump White House. And so we are going to be the people who get to the bottom of the corruption in Washington, including Trump. Yeah, no. So, I mean, we agree here. It's just that I think if I was a Democratic strategist, Democratic running in any of these races, I would say like, yeah, obviously don't go out on the stump and talk about impeachment. Don't run ads about impeachment. You know, don't do go, go with the Tom Steyer approach because

I think there is not because I, I don't quite buy into the fact that the more you talk about it, the more it riles up Trump's base and they'll vote. Like if you really love Donald Trump and you're part of the base, you're going to go out to vote. If you're disappointed in Donald Trump and you're wondering whether you should vote or whether you should vote Democrat, I don't think talking about his impeachment is going to get you out to the polls. But I don't think focusing on impeachment really helps get voters out and non-voters out who are thinking, I don't pay much attention to politics and what I want is someone to fight for me and what I care about in my life and helping me get a job and improving health care and all that kind of stuff. So I think that your message should be squarely focused on what matters to people's lives

and also the corruption in Washington, for sure. But clearly, we know that every reporter is going to try to corner every single Democrat running on do you support impeachment, yes or no, and every Republican in every debate with these Democratic candidates is going to say, do you support impeachment, yes or no and every republican in every debate with these democratic candidates is going to say do you support impeachment yes or no and what i want to make sure is that democrats don't try to play too cute by half with this and try to give some mealy-mouthed answer that their strategist and pollster comes up with because they are so afraid of a democratic candidate saying what is obvious now to everyone which is that the president was implicated in a crime and there has to be a process for holding him accountable and that the process that we've

been, that has been laid out in the constitution is impeachment. And I just, I think that we're better off being honest with voters instead of being scared and sort of, and trying to find out some other way to phrase it so that we don't, I don't know, touch off some tripwire. Yeah. The way I would answer this question, were I to be a candidate for Congress, which I will never be, is... Big news. If I... Yes. Our at-large member in Delaware is just sighing relief right now. I would answer this question by saying, if I'm elected to Congress, I will do my constitutional duty to provide checks and balances on the president and the executive branch. And I believe that we should have

oversight hearings and do investigations into allegations of corruption and criminality. And if we find evidence of high crimes and misdemeanors as outlined in the Constitution, then I believe that we should undertake impeachment. But step one is to get there and do the investigation. I think it is that simple, which is if we find something like we are allowing the Republicans and the media to put the cart before the horse on our message, but it should be pretty simple. Yeah. Let's talk about how this affects the Kavanaugh hearing, which is we are barreling towards going to be the week of September 4th. On Wednesday, Chuck Schumer said that the Senate should immediately pause the consideration of the nomination of Brett Kavanaugh to the Supreme Court following the conviction and guilty plea of Manafort and Cohen. And the news, of course, that the president has been implicated in a federal crime.

Of course, Chuck Grassley, spokesman, he's the Senate judiciary chairman, said that the hearings will begin as planned on September 4th. On September 4th, Susan Collins, one of the Republicans whose vote would be necessary for almost any effort to stop or sink the nomination, has said she sees no basis for delaying the hearings. We've also had senators, some Democratic senators say, you know what? After the news on Tuesday, the president's implicated in a crime. Absolutely not. He shouldn't get to nominate a supreme court justice um what do what do we think of this dan like does does what happened on tuesday sort of help our argument on kavanaugh does it give permission to democrats and red states to push for delay or even vote no

and what we do about the fact that it seems obvious that mcconnell and grassley will not be delaying this hearing yes is, is the answer to your question. It should – it creates – there was already sufficient political and substantive evidence for Democrats even in the reddest states to vote no. Just the simple fact that we are not going to see the overwhelming majority of his papers is a reason enough for a Democrat, is a rational reason that will be – to the extent that voters even care about this, which I am pretty fucking skeptical of, this would – you have a good answer to the question, which is I would only vote for someone for a lifetime appointment if I got to fully vet them. I was not given that opportunity, so I could not vote. So you had that permission anyway. This is even more of a big deal because now it raises the stakes on this vote. And so you can do this. And I applaud Ed Markey and Mazie Hirono and others who canceled their meetings with Kavanaugh over this. That is good. The problem we have is we have zero levers of power.

There is nothing we can do to stop McConnell from holding these hearings and holding this vote. That is the sad fact of not having control of the Senate and why we need to fucking take it back. So we are limited. The one thing that I think is an interesting idea that would be to make the case both in the hearing and in people's meetings, and even for some Republicans, some Democrats who may be open to voting for Kavanaugh is to make the case that he needs to recuse himself from any case involving the Mueller investigation because he's being appointed by Trump. fair argument that Trump is stacking the jury by having picked the one among his menu of right-wing ideologue candidates. He happened to pick the only one who has a public position that president cannot be indicted or subpoenaed. So there is an argument here that he should recuse himself. And I think that would be interesting because if you were to get him to make a,

to agree to recuse himself that would be helpful and with the eventual focus he could very well be the swing vote on a uh on a case if you were having eight justices do it and it is and it is and what comes to the supreme court is a view that the president can be subpoenaed then four four would uh send it back as i understand it in a way in which he could be subpoenaed yeah then 4-4 would send it back, as I understand it, in a way in which he could be subpoenaed. I mean, I think they absolutely should push for that. I don't know why we haven't heard very much about that. Yeah, I think they're probably trying to delay the hearing altogether or get all Democrats on board as no's first. And then probably once the hearing begins, maybe that'll be the next

part of the strategy to at least try to get a recusal. Like you said, the problem is Susan Collins and every fucking one of her statements so far since Kavanaugh has been nominated seems like she's trying to get to yes on this. She does not seem like a done deal yet. And it's it's not going to matter who pressures her in the Senate or even who pressures her in the media. It's going to matter whether people in Maine, people who live in Maine actually pressure Susan Collins, whether she hears from her constituents like she did during the attempted repeal of the Affordable Care Act. But that's where we are now. I still think it is important for Democrats and red state Democrats to oppose this nomination and say that they oppose this nomination, not just because this is someone who's going to roll back reproductive rights and criminalize abortion and potentially repeal the Affordable Care Act and hurt workers' rights and all the other reasons, substantive reasons that we don't want Kavanaugh on the bench, but also because the president is under criminal investigation and has been implicated in a felony. And he's going to get to pick his judge who might hear this case at some point. And like, look, if Mitch McConnell made a rule that Barack Obama couldn't nominate someone to the Supreme Court because it was the last year

of his fucking presidency and we can't make a rule that Donald Trump can't nominate someone to the Supreme Court because it was the last year of his fucking presidency. And we can't make a rule that Donald Trump can't nominate someone to the Supreme Court while he's been implicated in a federal fucking crime? Are you kidding me? If a Democrat can't stand up and say that that's a problem and that they're going to oppose this nomination on that basis, what the hell are you doing? I get so angry. least still abiding by this old politics idea that may was probably never even true but that somehow voting for some small handful of the president's nominees for anything will help you win election it is bizarre it's fucking it's a consequence of fucking democratic consultants

and strategists being like people don't care much about this or people want you to be uh it says here that if you're in a red state that has and trump's approval rating is very high in this red state and because trump's approval rating is very high if you can show that sometimes you cooperate with donald trump and that sometimes you work with donald trump then therefore the voters in your state will like you and vote for you because they think that you sometimes cooperate with the president that they still like that's the reasoning they use to tell people this, because they're certainly not like no one really cares. No voter really cares exactly about like how many Trump nominations you support or oppose.

That's not something. But they think about this general idea of red state voters wanting their senator to be open to cooperation with the president who a majority of them approve of. to be open to cooperation with the president who a majority of them approve of. And then they take this as an example of where that senator or that politician has to take a stand on the issue. Look, in the days before, in the years before I worked for Barack Obama, I worked for mostly red state senators up for reelection. And there is an element of truth to this, but the message is not cooperation for cooperation's sake. It is that I, red state Senator X, am willing to put the interests of my state over politics. And so there are times it makes sense to cooperate, but those times are things that are very specific to the state. It could be if you were in a steel producing state supporting Donald Trump on the

tariffs. It could be on this specific issue that this, you know, like a energy issue or a farm issue that is good for the state. Cooperations for cooperation's sake is a dumb person's idea of a smart strategy. It sounds good. It looks good in a PowerPoint. It sounds good when it's said by a consultant, but it is not right. If you go to your voters, and we've seen this from the Democrats who win in red and purple states, and say, I stand for these progressive values, which is why you are donating to my campaign, making phone calls and knocking doors. I will always put Ohio, Wisconsin, Montana's interests first. And you can point to times where you have done that,

maybe it requires you to step out on your own, break from the party or whatever else, but it is good for your state, then you will be successful. That has been the formula for a long time. We just have forgotten what that formula has been. The person to watch here who has been very good at this is Jon Tester. He has found a way to win in a... The politics of Montana are more complicated than simply this red state that voted very huge for Trump because Democrats have been winning at the governor's level, at the Senate level for a long time. But he's able to be – to keep progressives energized and still win in this red state. And the danger of voting for the Kavanaugh nomination is you're going to get no points from the right and you're going to deflate the enthusiasm of your base. And I mean, I like, I feel like we

were shouting into the wind here. I mean, not that. No, but it's, it's great that you brought up Tester too, because you know, it goes to show John Tester is in a very tough race for re-election in a red state and he is in much better shape right now not guaranteed to win at all but he's in much better shape right now than his next door neighbor heidi heidkamp in north dakota who has been doing this dance on just about every issue or you know trying to hug trump on just about everything and tester has been or look at a great example of a person who does this well is beto o'Rourke in Texas right now, who, you know, Paulette yesterday had him four points behind Ted Cruz in Texas.

The same poll, by the way, that has the Democratic candidate for governor, about 13 or 14 points behind the Republican for governor. So it's not just some skewed poll here. And Beto O'Rourke, when he was asked about impeachment, was very honest and thought that there is enough evidence to impeach Trump. Talks about progressive issues all the time. He's running around Texas, a deep red state. But the way that he answers some of these questions, the way that he talks to his constituents is like, you know, reasonable people can disagree on this issue. You know, I'm you know, and I'm looking to cooperate where I can with Republicans on issues that may affect your lives.

Like he's he on one hand, he's strong. He's a strong progressive. He's an unafraid progressive. He's a confident progressive on a whole bunch of different issues. But on the other, he's willing to use a language that says, yeah, I'm willing to cooperate or compromise or listen to Republicans when it helps your life. And he's just, he's just honest about his positions. And I think that you're always better, you're always in better shape being honest about what you believe and where you stand than trying to approximate in your mind with your staff where some imaginary middle-of-the-road voter may be. Yes, there's no such thing as a middle-of-the-road voter. That's not, there are not people, it is this imaginary thing that's existed in politics for a long time where we think that there's just some people who think the exact right position in politics is equidistant between the Republican Party and the Democratic Party.

There are people like that and they all write columns in Washington, D.C. Like that is who they are and that's not how voters – like they are – they have nuanced views about what is best for their life. And what they really want is someone who's going to fight for them and tell the truth. Texas, from a constituent who was concerned and upset about NFL players taking a knee during the national anthem and trying to get Beto's view on that. And it is both the question, which was not angry, it was respectful, someone trying to actually deal with a complex issue and asking a question of a politician, and then the answer that Beto gave, which was both just incredibly moving and powerful support for the protests against systemic racism and police violence, while also being respectful of people who may disagree with that point, is the exact exactly what we need in politics in 2018 to be on. So I would encourage everyone to go watch that. And it's become such a viral sensation that LeBron James tweeted it out today.

go watch that. And it's become such a viral sensation that LeBron James tweeted it out today. So there you go. I mean, it reminded me of Obama's 2004 convention speech, you know, and I know that's overused a lot, but honestly, it was the that's the first thing that came to mind when I saw that answer. And it was also an off the cuff answer. And again, you know, we don't know if Beto can pull this off, but the campaign that he is running and how he answers questions and how he talks about issues, that is the model for candidates in 2018 and 2020, whether or not he pulls this off. Because it's refreshing. Okay, Go ahead. I will say this. I have never seen anything like both the response in Texas when we were there and the national response to a Senate candidate. We all have our Beto for Senate t-shirts that we got when we were in Texas. I wear mine a decent amount. I wore it to the gym today. Someone stopped me on the street to say something about Beto. No idea that – not like a friend of the pod, just a person who was interested in Beto. something about Beto? No idea. Not like a friend of the pod, just a person who was interested in Beto. Everywhere on my book tour, I talk to people who were volunteering remotely or were headed to Texas to help him out. Like you said, this is a really hard race. If anyone can do it, he can do

it. But there is something happening both in Texas and across the country about this person that is very special. Yeah. And it's something that Democrats should look to and learn from. Okay. When we come back, we will talk to CNN's Jeffrey Toobin. On the pod today, we have chief legal analyst for CNN, Jeffrey Toobin, who's also the co-host of the new podcast, RBG Beyond Notorious notorious which explores the life and times of supreme court justice ruth bader ginsburg on september 3rd cnn will premiere the documentary rbg which was directed and produced by betsy west and julie cohen jeff welcome to the podcast hi guys um so we originally booked you to have you on just to talk about your new podcast and the RBG film.

But there was some legal news this week. So we thought we would ask you about that. Fair enough. So you initially reacted to the Michael Cohen plea by saying that the president appears to be co-conspirator and or aider and abettor of a federal crime. Trump has responded to the news with a couple of different explanations, but he has said these weren't even crimes, that Michael Cohen essentially lied about Trump's involvement in order to get a more lenient sentence.

Can you help us cut through all of the excuses here and explain why this is a crime, why it implicates the president, and why the government believes it can prove all of this? Okay. Well, you know, as my dad liked to say, to make a long story unbearable, the federal election law is designed so that people know who gave the money and what the money is used for, right? I mean how the money came in and where it went out. What Michael Cohen did, and he says at the instigation of the candidate, Donald Trump, was he lied about both ends of that transaction. He covered up the fact that this money came in, and it remains somewhat mysterious what the ultimate source of it was. Was it the Trump Corporation? Was it Trump himself?

But clearly there was money spent on behalf of the campaign, and it was spent on this improper purpose, you know, paying off these two women for hush money on the eve of the election. And, you know, it's just worth stepping back and pointing out that this is precisely why there is federal election law, so that the public could know, for example, whether one of the candidates for office is paying hush money to women he slept with. I mean, this would be relevant information to voters. I think we'd all agree with that. And the fact that they engaged in this elaborate, I would call it a conspiracy, to cover up both the source and the spending of this money shows why this was a genuinely serious crime. Yeah. And do you think, like, do we have to take

Michael Cohen's word on this? Or it seems like from the documents, you know, associated with the guilty plea, the government has more evidence than just Michael Cohen's testimony. Is that correct? Well, that certainly seems to be the case. And, you know, it's worth pointing out that when you have two people with opposing stories, as we appear to have here between Cohen and Trump, you don't just sort of look each one in the eye and decide who's telling the truth. You look for corroboration. You look for other witnesses who are familiar with the facts. You look at documents. You look truth, you look for corroboration. You look for other witnesses who are familiar with the facts. You look at documents. You look at, you know, emails. Where were the

checks that were involved in this transaction? You look at if there were any tapes or video. I mean, that is going to be enormously important here, and we have heard nothing from Cohen at this point except his bare-bones guilty plea in court. But it certainly seems like there is considerable corroboration of Cohen's story. Plus, it's worth focusing on just the simple question of who benefited from this illegal act. Was it Michael Cohen? Was he the one running for president? Did he get elected president? No, I don't think so. It was Donald Trump whose campaign was protected by this expenditure. So I think the idea that this was somehow instigated by Michael Cohen without Trump's knowledge or involvement

seems on its face pretty preposterous. Jeff, this is obviously treated a certain way because Donald Trump is president of the United States. What would have happened in this case if Donald Trump had lost, but Michael Cohen had still been investigated, and this alleged illegality had happened? How would the justice system have treated Donald Trump were he not president of the United States right now? Well, at least based on the evidence that I have seen, and as I say, it's only what was presented in court. We haven't heard Michael Cohen's testimony, as I expect we will in one form or another. But I think he'd be indicted.

I mean, I think Trump would have been indicted. Now, he is not going to be indicted because I mean, I think Trump would have been indicted. Now, he is not going to be indicted because there is this Justice Department policy, long in effect, it's not a law, it's not part of the Constitution, but it is formal Justice Department policy that says no incumbent president should be criminally prosecuted while he or she is in office. That is protecting Trump now, and that has moved everything regarding his misconduct here to the realm of the political and impeachment. But I absolutely believe, based on what we have seen so far, that it's very likely Trump would have been indicted for this

misconduct, again, based on the idea of who benefited from this transaction. It wasn't Michael Cohen. It was Donald Trump. Jeff, could you help explain how that guidance came into place? Because we sort of were having a debate in the world of politics and legal commentators, political commentators about whether a sitting president could be indicted. And then there were sort of reporting that Mueller was going to abide by that guidance. But like, as you point out, it's not law. How did it come into place? Does Mueller have to abide by it? Is there an opportunity for someone to not abide by it? I'm just sort of curious that this idea that the, why it exists that a president cannot be indicted. And do you agree that's the right approach? You know, I actually do agree. You know,

we have three branches of government, the executive, the legislative, and the judicial, and only one of those branches has a single person in charge of it. And, you know, the framers, and certainly as the Constitution has developed over almost 250 years, has basically said that the president is a unique figure in our constitutional system. And the experience of being a criminal defendant is all-consuming, both in terms of time, all-consuming, both in terms of time, intellectual energy, and emotional energy. And the idea that the country could have a president disabled by that sort of burden is one that the Constitution should not allow. And I actually agree that that's the case, especially since

there are alternatives. I mean, most prominently, there's impeachment. I mean, if a president engaged in conduct that is criminal, that simply disqualifies him from being president, Congress has the power to get rid of him. In addition, under most statute of limitations, it's very likely that a departed president could still be prosecuted if the Justice Department thought that was appropriate after he left office. So it's not like this policy puts the president above the law forever. It simply recognizes his unique status in our constitutional system. It's interesting that you mentioned impeachment there, because I mean, it wasn't one of the reasons that DOJ felt it was okay to create these guidelines that a sitting

president couldn't be indicted is because they believed that the remedy for presidential wrongdoing while he's still in office should be a Congress that, at the very least, investigates that wrongdoing, and at the most, you know, begins impeachment proceedings to at least hold the president accountable for that wrongdoing. That's right. I mean, the Justice Department policy is very explicitly based on the idea that they are not creating some sort of permanent immunity and absence of consequences for a president who has committed high crimes and misdemeanors. The Constitution explicitly contains a provision for getting rid of someone. Now, that presupposes a Congress that is somewhat concerned about its constitutional

obligations rather than being primaried from the right, but at least the structure of our Constitution allows for impeachment, even if our current House of Representatives is certainly not interested in this subject at all. Jeff, what should we make of the fact that there wasn't a formal cooperation agreement with Michael Cohen and the government? What do you make of this? And what do you make of this dance that Lanny Davis is doing, Michael Cohen's attorney, where he keeps saying on television that Cohen has information that could be useful to Mueller. Like, why hasn't he just called Mueller, told him that privately? Why does it seem to all be playing out in public? Well, because Lanny Davis is Lanny Davis, and cable news is the very oxygen he breathes. But, you know, look, I think, you know, we are all guilty a little bit of operating on a contemporary news cycle basis rather than, you know, a more considered approach.

I mean, Michael Cohen just pled guilty literally a few hours ago. approach. I mean, Michael Cohen just pled guilty literally a few hours ago. I suspect that the prosecutors in the Southern District are saying to him, look, we don't want you making statements. We're going to be interviewing other witnesses. We don't want you out there in public right now, perhaps influencing other witnesses. I mean, I do take Lanny Davis' at his word that Cohen will cooperate with Mueller, with congressional investigations. So I don't think the failure of Cohen to speak out immediately means that Lanny Davis is somehow lying in terms of his interest. As for why there wasn't a written cooperation agreement, I admit to being somewhat puzzled by that. I think part of the reason may have something to do with the haste with which this was all done to get it in before the midterm elections and prosecutors sort of taking Cohen's representation that he was going to cooperate anyway.

If he does cooperate, if he does talk to Mueller, if he continues to talk to the Southern District, he could still get credit from the judge when he's sentenced. And that certainly is his priority. But the lack of a formal agreement is somewhat puzzling to me. Sort of moving on to our other criminal associate of the president, a couple of questions about Manafort. One, are you surprised, given what seems to be a significant amount of evidence against him, not just for this case, but for the upcoming case about being an unregistered foreign agent, are you surprised that he has on him to cooperate? Can he make a different decision about cooperation to affect his sentence in the convictions that we got this past week? Yes and yes. Yes, I was surprised. Yes, he can still cooperate.

I – that evidence presented in Virginia seemed as close to me as a slam dunk white collar case as I have ever seen. You know, did he evade taxes? Did he lie on his applications to the banks for these loans? I mean, yeah, he did. And there really wasn't any contrary evidence. I – you know, and it is not surprising to me that he was convicted and that, based on this recent juror interview, on the other 10 counts, it was 11 to 1 for conviction. I mean, it was just an absolute slam dunk. Why he didn't cooperate?

There are some people for whom that is just constitutionally, it just goes against their nature. Obviously, a pardon may have been on his mind. And if you listen to Donald Trump's interviews since the conviction, he's been very favorably disposed towards Manafort. I also think given the very nasty battlefield, political battlefield on which he played with Ukrainians and pro-Putin Russians, these people don't play. And if he cooperated against them, I think he might have some serious fear for his own well-being. But all that being said, I think he, you know, I thought cooperation would have been sensible, just as Rick Gates, his deputy, made that decision. Can he still cooperate? Sure. He will not get the same benefit in terms of sentencing than he would have had he cooperated from the beginning, but he's still facing an enormous amount of problems.

Remember, he could be retried on those 10 counts on which the jury broke 11 to 1 for conviction. He's got this other trial in Washington coming up in September where the evidence appears strong. This is a 70-year-old man who, you know, they've thrown around a lot of numbers, like it's hundreds of years in prison. He's not going to get hundreds of years in prison, but, you know, 10 years is certainly within the realm of possibility. And in federal court, you have to serve 85% of your sentence before you're eligible for release.

You know, he's looking at the prospect, possibly, of a life sentence. And, you know, that may change his mind about cooperating. But, you know, he's lost all the leverage he had because he's already been convicted. What kind of timeline is Robert Mueller on now going into the fall? And what are you looking at most closely over the next couple of weeks in terms of legal developments from this case. What is Robert Mueller's agenda and timeline? Can I use the phrase, beats the shit out of me? Damn, I thought you had the answer. You know, this is an office that has been deeply successful

in not making anything known about its internal deliberations. I think the one thing we can say with some certainty is there will not be any indictments or major public actions announced after mid-September. I think the James Comey model of interfering in elections is one that prosecutors will be struggling for decades to avoid. And I'm certain Mueller will not want to interject himself in the midterms. But after that, the one piece of – the one sort of thing I know – I think I know about Mueller, is that there will be two reports. One report will be sort of about the general issue of the president and obstruction of justice, the, you know, the Comey firing and all the related activities. The other, more complex and probably further down the road issue will be reports about Russian

collusion. Hovering over all of this is the question of whether Trump will agree to testify. And if he doesn't, and a subpoena comes from Mueller, that litigation, which will certainly go to the Supreme Court, could delay things quite a few months in and of itself. So all of which is an elaboration on my answer that I don't really know, but it's certainly not ending anytime soon. Jeff, let's talk about a happier subject, Ruth Bader Ginsburg. She has reached a level of fame that is pretty shocking for Supreme Court justice. I mean, I see people walking around my coastal elite bubble of San Francisco with notorious RBG shirts. What are you hoping that people who listen to your podcast and watch the

documentary understand about her story and where it fits into the bigger story of this country? fits into the bigger story of this country? Well, I think the thing to know about Ruth Bader Ginsburg is that she would have been one of the most consequential lawyers in American history if she'd never even been a judge on the Supreme Court or anywhere else. And she began litigating women's – the cases involving the rights of women at a time when the laws were nearly incomprehensibly different from the way they are now. When she was litigating for the American Civil Liberties Union, you know, women couldn't get credit cards independently of their husbands. You know, the, you know, women's pension benefits were defined differently than men. And of course,

discrimination in employment was not even considered discrimination. There were classified advertisements, and some people in your audience may need to Google what a classified advertisement is, that had women's jobs separated from men's jobs. And, you know, her litigation strategy was, you know, a brilliant success in the 1970s. And it led to, you know, her prominence and her appointment to the Court of Appeals and then the Supreme Court. The story of her tenure on the Supreme Court in many respects is very different because she was a liberal justice, is a liberal justice in a conservative time, and she has not been as influential as she might have been. But her life,

as we tell in the podcast and as the wonderful film makes clear, is just a big story. And it's also a great love story about Ruth and Marty Ginsburg. So, I mean, this is not homework. I mean, this is really a great story. And, you know, it was a fun one to help tell. You wrote in 2013 that you asked Ginsburg about whether justices take into account the party of the president when deciding to leave. And she told you, I think it is for all of us. That was before the Merrick Garland fiasco. It was before Trump put Gorsuch on the court. And, of course, it was before Trump got a second chance to put a conservative on the court.

What do you make of the situation in front of her and us right now? It's a matter of how much yogurt she eats. I mean, it's, you know, she is obviously, and she's made no bones about this, she's going to try to hang on until there's a Democratic president. And I think, you know, amid all the praise that she has justly received from liberals, there's a lot of criticism for her failure to leave when she could have.

When President Obama, you know, unambiguously had the chance to fill the seat. I think that's a real mark on her legacy now, you know, if, you know, when Michael Avenatti becomes president in 2021, he may have the opportunity to replace her, and that's all fine. With Lanny Davis, of course. With Lanny Davis, right. But, or me, for example. But it's, so in which case it will all sort of come out in the wash. But if nature takes its course and Ruth Ginsburg is 85 and let me just say 85 is not the new anything. The court, which is already moving in a substantially more conservative direction, with Ginsburg replaced by a Donald Trump appointee, you know, we are heading into, we would be heading into genuinely unrecognizable territory. Well, we were going to move on to a happier subject, but instead we ended here.

That's right. Jeff, thank you so much for coming on the podcast Everyone go check out RBG Beyond Notorious Your new podcast And of course, on September 3rd Check out the documentary RBG Which will be on CNN Jeffrey Toobin, thanks for stopping by

Thanks guys Thanks again to Jeffrey Toobin For joining the pod today. Thanks for sticking with us. I know this was a long one, but, you know, there was lots to talk about today, Dan. It was a big week. Big week. What a week.

What a week, as they say. What a week. We'll talk to you guys on Monday. Bye, everyone. On Tuesday. Bye, everyone. Thank you.