The Bulwark Podcast - Elie Honig: Is Trump Untouchable?

Episode Date: February 2, 2023

Merrick Garland likes to say that no one is above the law, but the DOJ's own guidelines make it clear that some people are more equal than others. And no one exemplifies the disparities in our criminal justice system better than Donald Trump. Elie Honig joins Charlie Sykes today. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Good morning and welcome to the Bulwark podcast. I'm Charlie Sykes. It is February 2nd, 2023, and amazingly, it is Groundhog Day, which seems so appropriate. If you subscribed to my newsletter this morning, you probably know where I'm going. If you're a Bulwark Plus member, by the way, you have access to the Morning Shots newsletter, JVL's Triad newsletter, and of course, our whole suite of podcasts. I strongly recommend it. So this morning, I went on a mini sort of rant

pointing out that no one has learned anything. You would think, after the last six years, with all of the face plants, the sedition, the impeachments, the prospect of indictment, losing elections, you would think that that would marvelously focus the mind, especially if you are a Republican. I am old enough to remember after 2012, after Mitt Romney lost, the RNC was so rattled, it actually conducted its own autopsy. And they sat around, you know, thought deep thoughts about what they needed to do better, how they needed to expand their appeal. And, of course, they came out with this big report, which then they promptly and thoroughly completely ignored and did pretty much the opposite.

But after what's happened over the last six years, after 2016, 2018, 2020, 2022, they don't need an autopsy anymore. The Republican Party needed an exorcism. Instead, here we are in February 2023, and the Republican Party is looking itself in the mirror and shrugging and saying, looks pretty good to me. We're going to just keep doing what we're doing. Big headline in the Washington Post, GOP report shows plan to ramp up focus on disproven election fraud theories. RNC report says, you know, we're looking at the midterms and we think that what we need to do is to go to ramming speed on abortion, which is not able to move on from any of these issues, is also struggling to move on from Donald Trump, even though we have polls that show that he's losing altitude. The reality is he's got an iron grip on about 30% of the Republican Party. And I think more significantly, no one in the Republican Party really seems prepared to take him on. And the headline in my newsletter this morning, which you can subscribe to, is this is not punching back.

And I was looking at a lot of the headlines of the media coverage of the weekend in which Donald Trump is really ramping up his attacks on Ron DeSantis. He's not calling him Ron DeSanctimonious anymore. He's calling him Rhino Ron, saying he's a globalist who's all in on vaccines. And some of the headlines were, well, you know, DeSantis is hitting back. DeSantis is snapping back. No, he's not. He's not saying anything. He doesn't even say his name. And at some point, if you're going to take down Donald Trump, you might have to talk about him. You might actually have to answer back. Instead, what do we get today? Nikki Haley, who, and I have to admit, I understand Rhonda Sanders's strategy. I really do. I mean, I understand a little bit of what he is thinking, but Nikki Haley is out there saying, yeah,

I'm running for president, but you know, Donald Trump is the best, right? He is. He is the best. So joining me on the podcast today to talk about his blockbuster new book with amazing timing, Ellie Honig, who's a former federal prosecutor and who's worked for eight plus years as an assistant U.S. attorney for the Southern District of New York, Senior Legal Analyst for CNN, and is out with a new book, Untouchable, How Powerful People Get Away With It. So first of all, thanks for coming back on the podcast. How are you? Great, Charlie. And that opening rant was, I'm sitting, I don't know if the audio picked me up, but I'm sitting here chuckling along. It just brought right to my mind a major point that I make in the book. So what I do in the book is I think back to my time as a prosecutor. Like you said, I was a federal prosecutor in Manhattan for eight and a half years. I was a state prosecutor for five and a half years. And I tell stories throughout the book of actual cases I did. And the main thing I did was mafia cases, goodfellas, sopranos, but the real life version

of that in New York City. And as I was researching and writing this book, I saw so many parallels between the tactics that actual mob bosses, I know it's become sort of trendy to say, oh, Trump's like a mob boss. He is, but I know exactly how he is. And tactics used by Donald Trump, but also other powerful people. And what your rant today brought to mind was the way that Donald Trump has a hold over people around him to prevent them from testifying against him, to prevent them from becoming witnesses against him. And you'll remember there was this crucial moment in time right after January 6th when Lindsey Graham, Kevin McCarthy, others said, it's on him. We're done. I'm paraphrasing here, right? And here we go. Now, Kevin McCarthy, let's look at Kevin McCarthy.

This guy was a key witness. He talked with Donald Trump on January 6th. He got into a verbal fight with Donald Trump on January 6th, and he came out against Donald. He actually said, Donald Trump is responsible, and Donald Trump acknowledged to me, Kevin McCarthy, his own responsibility. Now, looking at that as a prosecutor, I'm thinking, that's a key witness. I need that guy. But then what happens? The same fear factor that you were just talking about, Charlie, they're all willing to dip a toe into the pool, but no one's willing to jump in. And then fast forward two weeks, there's Kevin McCarthy kissing the ring at Mar-a-Lago. There's that famous photo of him and Trump in this glitzy room giving the thumbs up. And Kevin McCarthy is right back on board and people go

silent and Kevin McCarthy refuses to testify. board and people go silent and Kevin McCarthy refuses to testify. What that brought to mind for me, Charlie, was a specific mob case I did where a very powerful captain in the Genovese family was shaking down this sort of sad sack guy who was actually a carpet salesman. They called him Gene the Carpet. Very creative nickname, right, in the mob. And by the way, I always object to that. He's not a carpet. He's a carpet salesman. They called him Gene the Carpet. Anyway, Gene the Carpet admitted to us, yes, this guy's been shaking me down for a long time. Well, a minute before he took the stand, he lost his nerve. He was crying in the back room. Oh no, I don't remember anything. He didn't do

anything wrong. And we threw him up on the stand and he tried to lie and say, he never paid me. And he's crying. It's pathetic. And he tried to lie and say, I never, he never paid me, and he's crying, it's pathetic. And he tried to tank our case. And luckily, the jury saw through it. And luckily, we had the ability to force him to take the stand. And he was, but, you know, Kevin McCarthy, as I write in the book, is really not that different from Gene the carpet. He's got a better haircut, but they both knew the truth,

and they both wimped out because of fear of a powerful person. And you can't connect the dots here. He has successfully intimidated witnesses. He's intimidated prosecutors. He has intimidated his political opponents. And there is that sense that he is kind of untouchable. Don't you dare, because if you say anything about him, if you push back against him, he's going to call you a name, or he's going to unleash his flying monkeys against you or what? So this question of how the justice system works, I think, has been nagging on me. I was going to say it was nagging on me, but I think it's been nagging on the entire country. You got a glowing review of your book yesterday in The Washington Post from Scott Turow, who writes,

This engaging book demonstrates how those who can exert substantial power of some kind through public office, great wealth, control of a crime family, have consistently been able to avoid paying a price for serious wrongdoing. And that's one where you stop and go, oh, okay. So this is a Trump story, but it's also a systemic story because we would all like to tell ourselves a story that justice is blind, that the scales of justice are not tipped if you are rich, if you are powerful. And yet it seems again and again, and you go through this in great detail in your book, we're finding out that there's one law for schmoes like us. There's another law for people who are stopped for having a traffic ticket or who fudge on their taxes. And there's a very, very different law for celebrities, billionaires, moguls, mob bosses,

or people like Donald Trump. Yeah, you're exactly right. And look, I was a longtime prosecutor. I am an optimist about our institutions and our ideals, but I also think I'm clear-eyed about some of the shortcomings. And I do in this book point some of the finger at prosecutors. The fact of the matter is, you know, we love our cliches. We prosecutors, we love nobody's above the law without fear or favor. But the fact of the matter is we do treat some people with more fear or favor than others. And I give examples in the book.

And by the way, Donald Trump is the predominant figure in the book. But we talk about in this book about all manner of powerful CEOs, politicians, celebrities. Trump actually is, I find, a very useful sort of microscope through which to view our justice system. But let me give you an example of how that's the truth that we do as prosecutors favor some people over others. If you look at the United States Attorney's Manual, the Justice Manual, it's now called, that's a public document. It's on the internet. It's binding on all federal prosecutors across the country. We used to have them on our desks. There are various provisions

in there that say, if your subject who you're investigating and potentially indicting is a political official, is a, it doesn't say famous person, but it says is likely to draw significant media coverage, which means famous person, then your case has to go up to higher and higher levels for review and approval. And I give a couple examples in the book, but here's one. When I was maybe a third or fourth year prosecutor, I had a Gambino family mob case where they were running a gambling ring that involved a major league baseball player, a fairly well-known major league baseball player that, you know, the name would be recognizable to baseball fans. He made a couple of all-star

teams. I don't say his name in the book. Maybe I'll tell you afterwards, Charlie. But if this guy was just a butcher, a carpenter, a normal FedEx driver, I would have made the decision myself. I was a third year at AUSA, never would have had to go up the chain. But because I said, oh, this will be on the front page of the New York Post, I had to take it up to my deputy unit chief, to my unit chief, to the deputy division chief of the criminal division, to the criminal division chief, to the deputy US attorney. We ultimately decided not to charge this person. I actually think that was probably the right call. It was a fairly low level offense. I say in the book, he became a witness for us instead. He gave us information, but the higher a case has to go up, the more people who can kill it, who can say, I don't see it. And so

look, there's good reasons for this. It's not necessarily corrupt. You have to protect the reputation and credibility of your office. And if you screw up a major case, that's going to have long lasting repercussions. I'm very critical of a couple prosecutors who fell into that. But the practical reality, the unavoidable reality is that's an extra protection for famous and powerful people. By the way, the timing of your book could not be better. I mean, it was just released this week. Let's just start off with the story about how the Justice Department and the Southern District of New York went easy on Trump in this investigation of the hush money payments made to two women who had affairs. This would,

of course, be Stormy Daniels and former Playboy playmate Karen McDougal back in the news again. Monday, we learned Manhattan DA's office is presenting evidence to a grand jury that Trump might have committed some state crimes. And just as a little bit of a refresher here, you know, Trump's former fixer, Michael Cohen, actually went to federal prison for giving Stormy Daniels $130,000 before the 2016 election, just to keep her mouth shut about allegations that she had sex with Donald Trump. And I thought too disgusting from, I got to get that thought out of my head right now. Cohen pleaded guilty to violating federal campaign finance laws. He's also admitted giving $150,000 to McDougal to also not talk about, you know, what she did

with Trump back in 2006 and 2007. The deals were coordinated with the National Enquirer. I love this detail because this has been reported, you know, the former publisher of the National Enquirer, David Pecker, basically, you know, was seen entering the building where the grand jury's meeting. So talk to me a little bit about this particular case and how Donald Trump, up until now, was untouchable. Yeah, this is a remarkable coincidence, really. I wanted to tell the story of how the heck did it turn out that my former office, the big bad Southern District of New York, we think very highly of ourselves. Others sort of roll their eyes at us. Only ever took down and charged one person with this whole hush money scheme, not Donald Trump,

not David Pecker, not anybody else involved in this, not any of the executives, but Michael Cohen, who really just served essentially as a bag man. He wrote some checks, he got reimbursed. And to me, that's just a complete injustice. And nobody's ever told the story. In this book, for the first time, I go inside the Justice Department. I got people to speak to me. I say in the book, well over half a dozen people who were all over this case, different perspectives. And the story, the inside story is really revealing. And now, as you say, Charlie, it's right back in the news, which- I am listening. I want to hear the story. So there were a couple of major things here. When the SDNY is getting ready to indict Michael Cohen, this is the summer of 2018. This is sort of the height of the Mueller

investigation. They have to grapple with this question of what do we do about Donald Trump? Now, under longstanding DOJ policy, the Justice Department will not indict the sitting president. And I say that carefully because as I note in the book, people sometimes say DOJ cannot indict a sitting president. Actually, not true. We don't know. But DOJ has long had a practice that they've memorialized in this memo that we don't think it's a good idea, dating back to the Nixon era. So SDNY is looking at their Michael Cohen case, and they say, well, we can't indict Donald Trump, but we believe he's part of this. We believe he's, essentially, there was a consensus on the team that Donald Trump was criminally liable for this hush money scheme that he ran it, basically. So they write up an indictment, a draft indictment of Michael

Cohen that has chapter and verse on Donald Trump, lays out in detail his role in the scheme, makes entirely clear he's committed a crime and really has to be prosecuted when he leaves office. But then what we call main justice, when I was at the Southern District of New York, we used to sort of have this antagonistic relationship with the suits down in D.C. at Justice Department headquarters, who were technically our bosses, but we often defied and fought with. Well, the suits at main justice, and this is under the Trump administration, Rod Rosenstein was driving the investigation at this point because Jeff Sessions was recused. They get wind of this indictment. They review this indictment

and they say, no way. All this Trump stuff comes out. We are not going to lay it out like this for a person who can't be charged and therefore cannot defend himself in a court of law. There is a heated back and forth between SDNY and DOJ, which I detail in the book. But ultimately, although the Southern District is stubbornly independent, we're not anarchists and we do have to do what DOJ says and DOJ prevails. And all of that detail gets zipped right out of the indictment. And all we see in the public is this sanitized indictment that barely mentions Trump. And by the way, I also have the story of how Trump became famously individual one. Individual one.

Yeah. I can tell you how. This is in the book. But basically, the SDNY considered calling him co-conspirator one, which of course would have been way more damaging. They actually, on their own, the SDNY decided that wasn't going to fly. But what I thought was funny was at one point, the SDNY wanted to just call him candidate one. And the bosses at DOJ were so sensitive. They said, no, that's too specific. Let's just call him individual one. And one of the SDNY prosecutors said to me, you know, for a while we were joking, let's just call him president one. Then no one will be able to figure out who it is. So he becomes individual one. He really

dodges a bullet there. Now, fast forward to early 2021. Now the SDNY has to grapple with what do we do? He's about to leave office. He's going to become indictable. And I report for the first time in this book that there were a series of meetings inside the SDNY where they discussed, should we do this or not? We know the answer. They did not indict him for it. I lay out the reasons why in the book, which I think listeners, readers will be fascinated to see, I think probably will disagree with. And now this has come roaring back because the Manhattan DA, literally across the street from the Southern District of New York, is now reviving this case. I can't quite figure out why. Why now? We're six and a half years after the hush money payments were made. I should say I'm friends with the Manhattan DA,

Alvin Bragg. We were together at the Southern District of New York, but they are apparently putting this case in front of a state grand jury. We could see an indictment of Trump for the hush money scheme in 2023. Who knows? And SDNY is totally out of this? Yes. SDNY is absolutely done with Trump and hush money. There's no way they'll come back into it. So talk to me a little bit about Jeffrey Berman. He was the former head of the office in SDNY, and he wrote his own book that, as you described, the DOJ forced him to rewrite the Cohen filing back in 2018. And of course, Barr ended up firing Berman in 2020. Trump apparently ordered that while Berman's office was investigating Rudy Giuliani. So what role did Berman play in all

of this? I have some serious questions about and for did Berman play in all of this? I have some serious questions about and for Jeffrey Berman, actually. I don't know him. I never worked under him. I left before he became U.S. attorney. Jeffrey Berman recused himself from this whole investigation, which I actually think is the right thing to do. He had been put in the position of U.S. attorney by Donald Trump. He had donated to Donald Trump. Different people on the team had different understandings of why he recused himself. Someone believed that his brother had some, not illicit, but just some dealings with Trump. The reason you recuse yourself, and often it's the right move, is because you're following good ethical practice. You don't want the appearance of a conflict of interest. How on earth does Mr. Recuse,

Jeffrey Berman, who was not part of this case, the guy who was running this case, was named Rob Kuzami. He was the deputy, the number two guy, and later on a woman named Audrey Strauss. Everyone on this team said Berman had nothing to do with this case. He was recused. How the heck does he know this now? And he was not involved at all. And I will tell you, various people who are the subjects of his reporting have said he got facts wrong. They've said that publicly, said that to me. And I got way more detail and way more accurate detail about way more. He wasn't part of the 2021 discussions either. He was gone by then when they were deciding whether to charge Trump. So Jeffrey Berman has gotten a lucky twist in that he was a Trump appointee, essentially. He was a Trump guy. He did not do a particularly good job as US attorney, but because he was fired

in such dramatic fashion, and I think completely, you know, problematically by Bill Barr and Donald Trump, he's used the circumstances of his firing to try to elevate himself to some kind of resistance hero. But I reject his narrative. Okay, so let's go back to this review from Scott Turow, who really loved your book. He was surprised by the fascinating tidbits that you wrote about, including, we've been talking about SDNY, but the Manhattan DA's office, they have some issues too. He specifically highlights the Manhattan DA's office favoring, wanted to indict Ivanka Trump and her brother Donald Trump Jr. over allegations of fraud and

selling apartments. But you tell the story that President Trump, Donald Sr.'s lawyer, goes and visits Cyrus Vance, who was then the very highly respected DA, gives $50,000 to his re-election effort, and the charges are dropped. Yeah, this is an astonishing story. WTF. Yeah, the New Yorker really did a remarkable job exposing this story, the magazine.

One quick aside for any of your listeners who are interested in the world of publishing. It's scary writing a book because you're going to get reviews and they'll rip into you if the book's not good. And you don't know if you're getting reviewed. And I was on the train yesterday and my brother says, Scott Turow likes your book. I said, what? Who? Why? What did he tweet? He goes, no, he wrote the Washington Post review. I said, oh my God. And he wrote a wonderful review of the book, which was absolutely a thrill. Okay. So Cy Vance, the Manhattan DA before Alvin Bragg, before the current DA who took over a year ago, takes a lot of heat in my book. I am a strong critic of Cy Vance. For one thing, he botched the Harvey Weinstein case. I lay this out in the book.

He had a very strong case against Harvey Weinstein, gave him a pass. Later, after the media explodes, he doubles back and belatedly charges him. He also, though, lesser known, gives away this case against the Trump children. Now, this is before Donald Trump was president or even really a candidate, but Don Jr. and Ivanka basically were involved in some shady real estate deal where they just lied about what the development was and how many units had been rented. They lied to investors and customers over and over again. The Manhattan DA's office has this case. I spoke with a member of that team and the New Yorker, like I said, did the main reporting on this. And the team feels like they have a chargeable fraud case. Well, Cy Vance then gets a visit from a lawyer for Donald Trump, senior, the future president,

who had donated an enormous amount of money to Cy Vance's election campaign. And then Cy Vance, he gives access to this guy and he decides no charge. And then when this comes out, Cy Vance refunds the donation as if that fixes it. The kicker is after this is all done, he takes an even bigger donation from the same guy. Then he gets caught again. Then he returns that donation. And here's my point in the book. Look, I think electoral politics and prosecution are a toxic mix. I don't believe Cy Vance was bribed per se, but first of all, defense lawyers are very, very smart people. What's the incentive to donate to Cy Vance if you don't think there's anything in it for you? And also, even if there was nothing bad, you know, Cy Vance said, oh, I didn't shade my judgment at

all. It looks absolutely horrible. And any reasonable member of the public would look at that and go, that's disgusting. That looks horrible. And you'd be right. And that matters. If people do not trust our prosecutor's offices, then you've lost it. You've lost your credibility and you've damaged the institution. You have some very interesting things to say about the Fulton County investigation and about the Jack Smith investigation. But I want to just take a step back because, you know, I think one of the most interesting parts of the book are your stories about taking down hitmen, capos, and these top mob bosses. And you mentioned this before, you know, that Trump acts like, I mean, it's almost become this cliche that he acts like a mob boss, you know, ha ha ha ha. But actually, you go into some detail about this. You

know, I mean, you tell the story about, you know, a crime boss orders the murder of his own nephew, telling a Confederate, do what you have to do. And this is kind of a tell because, as you write, Trump showed a similar ability to convey his criminal instructions without quite saying the words out loud, right? I mean, he doesn't email, he doesn't text. He has a way of communicating his desires without having the fingerprints. So talk to me about that a little bit. I opened the book with this story of this prosecution brought against a very powerful Gambino leader who authorized the murder of his own nephew, believe it or not. We had been working on this case for years, even before I arrived in the office. I was sort of arrived in the middle

stages of this case. And we had indicted and convicted the guy who shot the victim, the guys who set it up, the driver, the guy who brought him to the scene. They sort of set him up at a strip club actually, and then shot him outside in the parking lot. But we knew, we knew there was no way this hit could have gone down without authorization from the boss slash his uncle. And we flipped a guy who had a little piece of information that basically word had been sent to the boss who said, as you said, Charlie, do what you have to do. And I don't want to spoil the ending of this, but I will tell you that this was a very difficult prosecution. The outcome I say in the book was not entirely satisfactory to me, largely because he was really good at using language. And Donald Trump has shown a similar aptitude for using

language and conveying clearly what he wants done without ever quite crossing that line into explicitly saying, I need you to commit a crime for me. And we can see examples. I'll give you two quick examples where Donald Trump has done this kind of thing. Michael Cohen was convicted of lying to Congress about Trump's efforts to build a skyscraper in Moscow. Cohen said that those efforts ended long before they did. And Michael Cohen was, he pled guilty. And then he was asked publicly, did Donald Trump tell you to lie? And Michael Cohen honestly says, no, I can't quite say that. He didn't work that way. What he would do is he would say, I heard you got a subpoena. I heard you going into Congress, you know, no problems. We didn't

do anything wrong. I know, you know, you know, that kind of thing. And Michael Cohen says it was entirely clear what he meant. You want another example? Look at the speech on the ellipse before January 6th. You know, I need you to go down to the Capitol. We're going to use strength. Well, look, let's take it from the actual people who stormed the Capitol. Many of them have now said publicly and in their court cases, their criminal court cases,

that they understood those words to be an instruction to go down and do what they did to rip apart the Capitol. Did he say, I need you to go commit seditious conspiracy? Did he say, I need you to go down there and break windows and try to put hands on members of Congress? No. But did they understand his meeting? Absolutely. You also read about how Trump has worked to silence anybody that might testify against him. I mean, of course, this was a big theme of the Mueller report, all the ways in which he was attempting to obstruct justice. And my conclusion as a layperson is that he's been very successful at obstructing justice. In either dangling carrots or with sort of the implied, you know, threat, you know.

Absolutely. We know that you'll do the right thing, correct? I mean, this is also a pattern of Trump. Donald Trump is a master of the art of Omerta as the mobsters say, which means silence. And you're right, Charlie, he uses every tool on the belt to get this done. He uses the carrot, he uses the stick. For example, look at anyone who challenged him on January 6th. What would he do? He would threaten their political future. He would primary them. The people who voted to impeach him on January 6th, two of the 10 of them survived. 10 Republicans voted to impeach him and he bragged and all eight other Republicans have now been run out of Congress. Either they lost in a primary or

they retired. He would boast about this. When the second one retired, he wrote two down, eight to go. And he largely succeeded. He primaries people. He has Republican politicians afraid of his wrath, afraid for their political future. He also knows how to dangle a carrot. And the example there was I talk in the book about how Trump really revolutionized or maybe devolutionized, I'm not sure if that's a word, the use of pardons. Using pardons to favor your powerful political and personal friends and family members is nothing

new. Bill Clinton certainly handed out some very shady pardons to his brother, to Mark Rich. It goes across party lines. It goes back in history. What Trump did, though, was figure out how to use pardons to his own benefit, because he would dangle these pardons. We remember he would tweet about this. Anytime it looked like someone was cooperating or was, in fact, cooperating, Manafort, Flynn, Cohen, Stone, on down the line, he would basically make clear to them publicly and sometimes privately, keep mum and I'll reward you. And he did, by the way. In the end, in his final days in office, Trump actually ended up pardoning every defendant who was convicted under Robert Mueller, except for the two who cooperated, Michael Cohen and Rick Gates.

So he was brilliant and remains brilliant at keeping people silent and protecting himself by silencing witnesses. And of course, this works in politics as well. This sort of doubles back to where we started. You know, he's running for reelection. He is in a weakened position. And yet the fear that you're describing in the legal sphere transfers over into the political sphere. And I'm trying to imagine how this primary is going to play out. You know, when is Ron DeSantis ever going to say anything critical of Donald Trump? When will Nikki Haley say anything critical of Donald Trump? The answer is never because they are afraid of him. They are

afraid that he will smear them, slur them, give them a nickname, push back on them. This feels like it's an echo of 2016. So what they're left with is what McKay Coppins in The Atlantic calls the magical thinking, waiting for something to happen. Maybe a meteor will hit. Maybe he will die. Maybe he will get charged. Somebody else will do the dirty work for us or indict him and take him out. And so a lot of this campaign, I think, is premised on the fact there's going to be a primary fight. I have to tell you, I've been trying to game this out in my mind, to think what is Ron DeSantis going to say about Donald Trump? Because simply saying scoreboard, I won, you didn't win, or we need a new generation,

I don't think is sufficient to take out this guy. So he's got to be hoping, putting a lot of hope that somehow these indictments are going to come down and will change the political dynamic, which leads us to your thoughts about the Fulton County, Georgia investigation. The conventional wisdom is that an indictment of Trump for interfering in the election, there is a foregone conclusion. You are not so certain. Why not?

So I think it is very likely, and I say this in the book, given all the indicators, all the public statements and other posturing that we've seen, I think it's highly likely that the Fulton County DA does indict Donald Trump. I stress the word indictment though, because I do think there is a bit of a misplaced focus on just indictment. People are on indictment watch. And I think people who want Trump to go away, and I think people who despise Trump will throw a ticker tape parade on the day an indictment is announced, if that happens. I am trained as a prosecutor and I am always taught that indictment is just the start of a case. Indictment is the easy part.

That's up to the prosecutor. If Fannie Wills wants to indict him, she'll indict him. Nothing's stopping her. The hard part is turning that into a conviction. And by the way, if there's an indictment of Donald Trump that does not result in conviction, query how that plays for him politically. I'm not a political expert. Query how that plays for him politically. I'm not a political expert. Query how that plays for the prosecutor, for the country.

And in the book, I have a chapter about the Fulton County DA. I say what I just did. I think it's likely she's going to indict. But people need to understand what a major, long, treacherous uphill climb that's going to be to turn that indictment into a conviction. And one of the major reasons for that, and this applies to Merrick Garland as well, if he someday indicts, God knows if he will,

I have a chapter excoriating him as well, is it's so late. They've both, the DA and Merrick Garland have wasted, we are two years and a month, we're 25 months removed from January 6th. There goes my blood pressure. Okay, you're about to trigger me. I'm sorry. I want to get to Garland in a moment. So the Fulton County thing. So a lot of people did think this was kind of a straight shot.

But, you know, you were on WNYC the other day. And you say it's not as much of a clear shot as people seem to think it is. Because his demand, if I could just find, you know, 11,700 votes. That was just a moment in a long conversation where he's ranting all over the place. But why is that not a straight shot right there? So there's problems with the evidence and there's problems legally, which I can talk about next. Everyone knows I can probably say by heart now the line, I just need you to find, find being a keyword, I just need you to find 11,780 votes, as he says it. I can almost

do the impression, votes, which is one more, I've heard it so many times, which is one more than we need. And everyone goes, there you go, smoking gun, game over. Listen, if you've stood in front of a jury, especially with a very polarizing at once popular and unpopular figure like Donald Trump, there's no such thing as a smoking gun. And here's the thing that you need to keep in mind. That phone call is 62 minutes long. That transcript is, depending how you type it, 100 pages. And in that phone call, he is all over the map. He's ranting, he's threatening, he says things that are offensive, potentially even enough to convict. I think that line is very important. But he's also saying things in that phone call. He's savvy enough maybe to say,

look, I'm not asking you to do anything wrong. I just wanted to make sure all the votes are count. I'm just doing my job here as president. I got to make sure our election's fair. I got to make sure the constitution's followed. And I think a defense lawyer could stand up in front of a jury and go, look, my client is an angry guy. You may not like him. He's certainly no magician when it comes to articulation. He doesn't always use the right word, but his message here is all over the map. And you can't point and say beyond a reasonable doubt, he was actually eliciting someone to go and fake votes. And by the way, he never followed up. He never called back. He never did anything. And I point to Doug Jones. Doug Jones was a Democratic

Senator, liberal Democratic Senator from Alabama who almost became Attorney General instead of Merrick Garland, is held up as a liberal hero, a guy I deeply respect and admire. He has a long history as a great DOJ prosecutor. He has said publicly, anyone who thinks this case is a slam dunk is kidding themselves. He held up the transcript. He said, any good defense lawyer will tear this transcript apart. And I take his word for it. Again, I think on the evidence, I think Trump committed a crime there beyond a reasonable doubt, but the atmospherics are going to make this difficult. Let me also briefly address, there's also a separate, regardless of the

quality of the evidence, there's a constitutional question about whether a local elected partisan, Fannie Willis has a D next to her name. Plenty of other DAs have R's next to their names. County level DA can indict someone for anything touching on their former federal office, including the president. And the argument is this would set off absolute mayhem. We have over 2000 elected prosecutors, county and state level prosecutors across this country. Some of them are in 90% red districts. Some of them are in 90% blue districts. And if you allow this, you would then allow hypothetically Joe Arpaio, remember him, the sheriff from Arizona, right? He was a sheriff, not a DA, but it's half step removed. If Joe Arpaio or someone like him were to become a DA in a heavy red district,

they could have indicted Barack Obama over the fast and furious scandal. You remember that with the firearms, that kind of thing? And it would lead to a never-ending cycle of retribution, and it would cause presidents while in office to worry, oh boy, is the opposite party DA in some county going to try to make a name for himself or herself when I leave office here? And now the question will be, does any of this quote touch on the official office?

Prosecutors will argue, no, he was way beyond the scope of what a president should do. Trump's people will be, does any of this quote touch on the official office? Prosecutors will argue, no, he was way beyond the scope of what a president should do. Trump's people will argue, look, broadly construed, he has very broad powers as president to see fit that the laws are executed. And so that's what he, maybe he was doing it in a ham-handed way, but that's what he was doing. So there's a serious constitutional hurdle that that case will have to get over before it even sees a jury. Okay. Now I'm going to take a deep breath here. Elliot, I want to talk about Merrick Garland. This has been a slow burn for me because I spent a lot of time,

you know, this guy's a man of great integrity. Perhaps he's moving slowly. Then when he seemed to ramp it up, I began to think that, okay, maybe he is going to grow into this role. He's given speeches where he says, you know, no one is above the law. But here we are, it is February 2023, and you describe Garland as acting with paralyzing reticence. And you said that he has behaved more like a tepid bureaucrat than a determined prosecutor. Oof. Yeah. So. Let me say this, and I think I maybe share most or all of your view of merrick garland

merrick garland in some respects has been a very good ag and i and i think he deserves genuine praise for the way he has restored the core values of the justice department what i mean first of all is he has not lied to us in contrast to his predecessor the subject of my first book bill barr kind of sad that we have to praise an AG for not being a liar, but here we are. The bar's been moved, yeah. Right, the pun there, B-A-R-R, bar has been moved. But yes, he has been honest with the American public, and Merrick Garland has fought for DOJ's independence. There was an incident I talk about in the book where Joe Biden said, sort of off the cuff, that he wanted to see the people who defied January 6th committee subpoenas, he wanted to

see them prosecuted by DOJ. And Merrick Garland, this was actually a remarkable moment, I stood up and applauded, fired off a public statement, basically I'm paraphrasing, but saying the Justice Department does not take instructions from anybody up to and including the president about who to prosecute. And I went, bravo, good, good for you. So Merrick Garland deserves credit for all that. Now, onto the bad news. Merrick Garland has, as you quoted, has, another thing I say in the book is Merrick Garland could have gone for the jugular. Instead, he poked at every single capillary. Merrick Garland loves these cliches about, we start at the bottom and we work our way up. He actually said that during his confirmation hearing. And I think at first glance, you hear that and you go, okay, that makes sense.

That's what prosecutors do. I'm sitting here as a prosecutor going, I hope he doesn't mean that. Because sometimes, yes, you do start at the bottom and work your way up. But that's not what a good prosecutor does. A good prosecutor says, where is the highest point of insertion where I can start? And you start there. And sometimes you can start in the middle. And sometimes you can start right next to the boss. And look, they had a lot of work to do. It's good. They did a good job. They have done a good job prosecuting the 900 plus, or maybe we're over a thousand now people who actually stormed the Capitol and assaulted cops and broke windows. But nobody of any position of power has been charged with anything relating to January 6th just yet. We're two plus years out. Not a single person with any political power has been charged with anything relating to January 6th just yet. We're two plus years out.

Not a single person with any political power has been charged. The contrast with Watergate, you know, continues to come back to me. When you think about all the members of the Nixon administration, all the way up into the Oval Office who faced legal consequences and nothing like that has happened. The sad thing is Merrick Garland got beat to the punch by the January 6th committee, by Congress, which is inexcusable. Prosecutors have so much better and stronger enforcement powers than Congress has. Yet, when Cassidy Hutchinson testified, Merrick Garland's prosecutors watched on their couches

astonished. They had not spoken to her. They had no idea what she had to say. They did not get to Mark Short first. They did not get to Pat Cipollone first. Now they're belatedly bringing these people in, but we're two plus years out. We have a special counsel finally.

Even if they indict this case tomorrow, Charlie, they're not going to be able to try this thing. It takes at least a year here. Trump's going to have motions and appeals. They're going to try this thing in 2024 when getting back to your opening point, Trump's going to be in the middle of primaries. My complaint is they're making the job that much harder on themselves because now you're going to

have to ask a jury unanimously, by the way, 12-0, 11-1. It's a mistrial and you lose as a prosecutor. You can retry them, but they're not going to have two trials of this guy, I don't believe. You need to now get a jury for the first time in American history to convict and send to prison a former president, but also a person who's a front runner for one of the major parties. Maybe, maybe, but you are needlessly making this job harder for yourself. There's no reason Merrick Garland, or Fannie Willis for that matter, couldn't have indicted this case in late 2021. Okay, so you feel very strongly, evidently, that Trump must, must be charged over 2020. Yes, I do. But listening to you, it sounds like you think it's already too late. I do. I think they've already missed the prime

opportunity to do that. Yeah. You know, the apologists for Garland say, these things take time. Investigations take time. I know. I did investigations for 14 years. Not this much. Absolutely not. We have seen DOJ through its history move with remarkable speed when there's a real threat. And by the way, Garland's rhetoric when he was confirmed was, this is the greatest threat facing our democracy right now. When DOJ truly believes there's a threat that they truly intend to take down, terrorist threat, threat to our cybersecurity, they can move within hours, days, weeks. I'm not saying this could have been a weeks-long investigation. There's no reason they couldn't have got this thing done in six months

and had a trial done by now. So what do you think they should have done and what should they have charged him with? They should have gone immediately to the people in Trump's closest orbits, including Cassidy Hutchinson, Mark Short. They should have put pressure up to and including the threat of indictment on people like Mark Meadows and Kevin McCarthy to try to flip them. And this should have happened back in 2021. Yeah. Merrick Garland took office in March 2021. He should have done this in April 2021. Gone right into the White House, right into the inner sanctum, built a case against Donald Trump. He could be charged, in my view, for obstruction of an official proceeding, a charge

which they have used against hundreds of the people who stormed the Capitol. His intent was to obstruct the counting of electoral votes. I believe with seditious conspiracy, I believe he reasonably understood force would be used, especially if you look at Hutchinson's testimony, he knew that crowd was armed. I think he could have been charged with conspiring to defraud the United States of a free and fair election, a charge which Mueller actually used against some of the Russians who interfered in this case. So I think he could have been charged for that by the end of 2021, if you put a determined prosecutor who wanted that fight and who had the appetite for that fight. I think Merrick Garland never wanted it. I think he's only been dragged to this point reluctantly by politics, by January 6th committee,

and maybe he'll get bailed out. Maybe Fannie Willis will indict and that'll take some of the think he's only been dragged to this point reluctantly by politics by January 6th committee. And maybe he'll get bailed out. Maybe Fannie Willis will indict and that'll take some of the heat off him. Maybe there'll be an indictment over the documents and that'll take some of the heat off him. I think that's what he's waiting for and hoping for at this point. The documents seem increasingly unlikely though, don't you think? I actually agree with you. I wrote a piece a couple of weeks ago about how I think the Biden revelations, I think, look, there's clear differences. I think there piece a couple of weeks ago about how I think the Biden revelations, I think, I think, look, there's clear differences. I think there's a very obvious argument that Trump's conduct appears to be criminal, but Biden's and Pence's does not.

That said, I do think the atmospherics of it have become much more difficult for Garland. And it's hard for me to envision Garland saying on something that are both documents cases in the view of many, I'm going to indict and again, seek to imprison the guy who's running against my boss, but not my boss and not my pets. That's a tough needle for him. Yeah. I don't think he's going to be able to thread that needle. Okay. So what do you think is going to happen? It should have happened earlier. It is perhaps too late. What do you think will happen? Will Jack Smith, will Fannie Willis, will they bring criminal charges in the next three, four months?

For you, Charlie, I'll go briefly into predictions mode. And I'll phrase this all as more likely than not. I'm not saying any of these are locks. More likely than not, Fannie Willis does indict Donald Trump in the next few months. As I lay out in the book, I think that's going to be a very difficult case to convert from indictment to conviction. The special counsels have to recommend what they want to Garland, but Garland ultimately has the final say.

I believe Jack Smith will recommend indicting on Mar-a-Lago. I say that partially because I know two of the people on Jack Smith's team. They haven't told me. I haven't spoken with them. I don't know anything, but I know who they are. They were SDNY prosecutors who were supremely aggressive. There's no way they left their prior gigs to go over and take a huge pay cut and not charge Donald Trump. But if Jack Smith does recommend that, Merrick Garland can overrule him. So I think it's likely Smith recommends an indictment on documents. I'm 50-50 on whether

Garland goes along with it. I do not think DOJ ends up indicting Trump on January 6th. I think it's for the reasons I just said. I think Garland could have done it. I think it's going to be too late. I think he's going to have the heat taken off him by a Fannie Willis indictment. I think it's for the reasons I just said. I think Garland could have done it. I think it's going to be too late. I think he's going to have the heat taken off him by a Fannie Willis indictment. I think it's going to be much easier for Garland to pass if the state, and by the way, he'll be able to point to that justice manual I talked about before, which said if someone's already being prosecuted by another prosecutor for largely the same conduct, that's a factor against charging. It doesn't say you should give him a pass, but it says you should wait.

So I would be shocked if DOJ charged Trump over January 6th. I think we're going to see some combination of county level charges and documents related potentially charges. But again, both of those are going to be really difficult. So at the end of this, at the end of the day, Donald Trump will effectively still be untouchable to go back to the title of your book. I think that's where we'll come out. I mean, I think there's a really fascinating political question, Charlie, about whether, and I've had this discussion with smart people who know this, will an indictment help or hurt him? I mean, on the one hand, people say nothing motivates Donald Trump and his followers like a fight. I mean, remember the day his Mar-a-Lago was searched?

He got a surge in support and fundraising. On the other hand, at a certain point, are the Ron DeSantis' Nikki Haley's and their supporters of the world going to say, look, the guy's carrying one, maybe more indictments into primary season, like enough's enough. I'm not the political expert, but I understand the debate there. That I think is going to be the key question because, I mean, I think the theory of the case of many of these Republicans that are running against him is that something, quote unquote something, some magical thing will happen that will clear the lane. What could that be? An indictment could go either way. Either the base rallies around him and decides, you know, I'm sorry, we got to stick with the guy through thick

and thin, or it simply adds to the Trump fatigue, like, okay, we love the guy, but there's just too much baggage and everything. Based on past experience, I'm thinking the rally around seems more likely. But again, we don't know. But if I'm building my entire political theory of the case of 2024 on the fact that the Fannie Willis indictment is going to take out Donald Trump, I think that feels very naive. I agree. Given the past, given Trump's track record, given the way that he will weaponize Trump. I think that feels very naive. I agree. Given the past, given Trump's track record, given the way that he will weaponize this. I agree with you. And there's even a chance that Trump goes into the federal courts on that theory that I said before

and gets this case thrown out in, I don't know, if he's indicted soon in the summer, in the fall of 2023. And boy, imagine him then. They tried to take me down. This Democrat DA, she indicted me and she got thrown out of court. Look at me now, right? I mean, that could happen. That could happen too. Okay. In the few minutes that we have left, your last book was about Bill Barr and Bill Barr has been back in the news again this week. In fact, we devoted most of yesterday's podcast, like with Charlie Savage, about his reporting on the Durham investigation. Bill Barr tried to rehabilitate his reputation with his book. How's that going? How is the Bill Barr reputation rehabilitation project going now that we've learned all of the things that he was engaged in with this John Durham faceplant investigation? I did a paperback version of

my book and the publisher said, you need to do a new chapter. I said, can do. I had plenty to add. One of the funny things about Bill Barr is I write in my book, he always put on this act of like, I'm too old for this crap. I was AG once already in the 90s. I don't need this job. I don't care what people say about me. He would say that. He said that something to that effect during his confirmation hearing. But it turns out he is quite vain about his public appearance, his public perception. I mean, he'll pop up. If I glance up at the screen sometimes when I'm here at CNN, we can see all the different cable networks. I'll go, oh, there's Bill Bargain. He's like a commentator on Fox. It's

like seeing one of their rotating commentators. He wrote his book. And the funniest part to me is in response to a freedom of information request, a bunch of his texts came out from when he was AG. And he's like, did my statement get tweeted? Did Don Jr. retweet me? I mean, he's like a teenager looking at his social media. But look, I think he's still full of it. He's a really good dissembler. He knows how to dodge and give non-responsive answers. He likes to remind everyone that he was the one who came out in December of 2020 and said there's no evidence of election fraud. That was important. Fine, he can have credit for that. But what he likes everyone

to forget, which I remind people of in my book and elsewhere, is he was one of the biggest proponents. He supported Donald Trump's election fraud nonsense while he was AG for months leading up to the election. He went in front of Congress and lied about that. He came on here at CNN with Wolf Blitzer and told some story about a case that involved, he said, 20,000 ballots, fake ballots. It only involved one fake ballot. The DOJ had to issue a correction of the AG. I mean, he was one of the people who fanned the flames of the election fraud lie. The analogy I've made is it's like if you went to a campsite, helped light a fire, literally got out a paper plate and fanned the flames, watched while the fire caught the trees and the cabins around you, then took your beer

and dumped it on the fire and said, hey, look at me, I helped try to put it out. So that's how much credit I give Bill Barr. I reject his effort to rehabilitate his image. Well, and of course, the dark irony here is that Merrick Garland came into office trying to undo some of the damage of Bill Barr, really thought of himself as being the anti-Bill Barr, the non-Bill Barr. And as a result of that, probably leaned over backwards to not weaponize the Justice Department. And I'm sure that you have been struck by the irony of how the Republicans now are having a special committee about the weaponization of the Justice Department, as if they had no idea that Bill Barr was ever in charge, or that Merrick Garland is, in fact, doing the opposite of what Bill Barr wanted to do in terms of weaponizing and politicizing the

Department of Justice. Yeah, I mean, like I said, I give Garland credit for restoring many of the institutional values, but he has gone too far. What I say in the book is it's one thing to be non-political. Every prosecutor should do that. It's another thing to be paralyzed and unwilling to make any move that might make political waves, even if it's right and necessary, as I argue this is here. Yeah, I mean, if they've got a committee on the weaponization of DOJ, they might need another committee on the defangization. I'm making that up. The defanging of DOJ. And let me just, I'll sort of close with this hypothetical or not hypothetical with this rhetorical question about Merrick Garland. Merrick Garland has now been the attorney general of the United States for almost two full years. He has 10,000 plus federal prosecutors, 94 U.S. attorney's offices across the country,

the entire FBI at his disposal. Who is the single most powerful political person who Merrick Garland's DOJ has charged with anything? Anything. It doesn't have to be January 6th. It can be anything. I asked someone that question and they offered up some- I'm struggling.

Yeah. Yeah. All right. I mean, now, is it possible that no powerful public official has committed a crime in the course of two years? I don't know. You know, Merrick Garland wants no part of this. And I think he's gone way too far.

And I think he's gone from non-politicization to just not doing the job if it might be deemed political. I think you make a compelling case. The book is untouchable, How powerful people get away with it. Ellie Honig is also the author of 2021's Hatchet Man about Bill Barr. He is a former federal and state prosecutor, worked for eight plus years as an assistant U.S. attorney for the Southern District of New York. He is now a senior legal analyst at CNN and host of the True Crime podcast Up Against the Mob and Third Degree. Ellie Honig, thank you so much for coming back on the podcast. Enjoyed it very much. Thanks so much. I really appreciate it. Always a pleasure to talk to you.

And thank you all for listening to today's Bulwark podcast. I'm Charlie Sykes. We will be back tomorrow and we'll do this all over again. The Bulwark podcast is produced by Katie Cooper and engineered and edited by Jason Brown.