The Bulwark Podcast - James Comey and Ben Wittes: A Demagogue Our Founders Feared

Episode Date: May 22, 2024

Former FBI Director James Comey joins Tim Miller to discuss the choices he made in 2016, the DOJ's self-sabotaging avoidance of the media, and how to maintain your integrity and principles in the face of a lying, lawless bastard. Plus, Ben Wittes in New York updates the status of the Trump trial, and praises the fairness of Judge Merchan. show notes: Comey's new crime novel Ben on Judge Merchan

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might've heard of him, Jim Comey. Director, how are you doing? I'm doing great. Long time listener, first time guest. Okay. I apologize for all the cursing, you know, when grandparents come on and sometimes I don't think about grandparents in my mind's eye when I'm cursing, but you know, sometimes the news calls for it. For those who don't know, Jim Comey has a new crime novel out called Westport. It's his second novel. He also wrote Central Park West. Then he wrote his first book, a memoir about the craziness that is his life called A Higher Loyalty, Truth, Lies, and Leadership. So we have to start with this. I just have to get it out of the way. Okay. You know what I'm going to ask you about?

Yeah. Why in the fuck did you come from Martha Stewart, Jim? All right. That woman has given us so much of all of the criminals out there. Why did you have to come for Martha? I know. And it's made Macy's, I think it is a no-go zone for me. It's really tortured my life. I don't think of it as us coming for Martha. She came to us and we had no choice.

Well, we might have to go a little deeper into that because Martha and Snoop bring people so much joy. And, you know, you took that from them. But we're going to get to Hillary, which I was obviously referencing in a little bit. But I've got some other topics we need to talk about. Are you following the news these days? Are you just kind of writing novels? I'm following it just so I can understand what's going on in the bulwark.

Okay. Well, there were some Mar-a-Lago raid documents unsealed last night. They included a line that talked about how the agents would have the ability to use lethal force if necessary. As a result, Marjorie Taylor Greene said that the Biden, DOJ, and FBI were planning to assassinate President Trump and gave the green light to do so. Concerning rhetoric, Paul Gosar said Biden gave the green light to do a hit on Trump. I was hoping you might be able to explain to us how these sorts of things actually work. Yeah, and I could. And amazingly, the Bureau, I think, has put out a statement saying just what I'm about to say, which is that

standard protocol to lay out what the authorities are of the agents, of course, in executing a search warrant. They have the authority because they're sworn federal agents carrying weapons if necessary to use force to respond to an attack. But it's in every single search protocol. The amazing thing I think a lot of the media has missed is the FBI fact-checking Trump in real time, which is something they haven't done before. And I think it's great. It may mean that Chris Wray hopes to get fired if Donald Trump is reelected, but good for him. You, I think if I recall, had some reservations about the Mar-a-Lago raid.

Is that right? I mean, obviously what MTG and Gosar and all these guys are saying is lunacy and, and frankly dangerous. But, but what about the merits of that? That had to be a tough call. A tough call, but a completely righteous search, given the obstruction that was going on, the hiding, the lying, they had to go in and seize the documents with a court order. My reservations were that the attorney general and the director stayed silent for three full days while Trump and the other Trumpettes lied about the FBI and people internalized that lie. And then Merrick Garland had a press conference and read a

statement three days later and that bell couldn't be unrung. That was my frustration. What about this, the lying with the FBI? We have now on the right, a discussion of defunding the FBI. We have the attacks on the integrity of it. I want to get into the, you know, kind of reputation of these agencies in a minute, because that sort of ties to all the tough choices you had to make. But I think at a most basic level, I just want to start. For people like me, who have luckily never had the FBI come for us who didn't go to law school, like defunding the FBI, defunding these agencies, like what is the potential damage that can be done there? What is the type of work

that the agency is doing? Well, right now, I am certain that hundreds of agents are trying to keep an eye on Hamas and Iran aligned terrorist elements that may be trying to come into the country once in the country trying to organize some sort of effort to attack. I don't know any more about this than I've seen on the news, but I know when I was director, Iran's presence and influence in our country was a huge part of the FBI's counterintelligence and counterterrorism work. So you want to defund that, I guess, and defund the investigation of exploitation of children, kidnapping, public corruption. Not far from where I'm sitting, Robert Menendez, a Democratic senator, is on trial for corruption offenses in a case that involves

public corruption at the highest level. So we should stop the FBI from doing that work. It's just more than nuttiness. It goes beyond nuttiness because nuttiness sounds charming. It's a nihilism that is part of the cult. Let's just get dark for a second. Looking ahead, let's imagine Trump does win, God forbid, a second term. what is the potential damage that could happen within an agency like the FBI? Like when you think about what their plans are for staffing and, you know, what they've said with Project 2025, etc. Like what are some tangible risks, you think, to those efforts in a second term? The risks come through the president's ability to manage the Department

of Justice in which the FBI sits. So to put in place, I mean, he didn't have the all-stars in his first term. In his second term, he'd be at the very bottom of the barrel, but it would be bottom of the barrelers who share his view that all of our norms, all of our traditions, all of our values are BS. And so put people in the Department of Justice to direct the FBI to take certain actions, to instruct the FBI to take certain actions. Now, how the FBI would stand up to that, I don't know. They're bound to follow the directions of the Department of Justice. And second, to control the money, half of my budget at the FBI came from the national intelligence budget. So directed by

the director of national intelligence, who I remember the acting was a unstable person named Rick Grinnell, I think his name was. And so you put him back in there, he's in charge of the budget and decides how the FBI is funded and what work it has the money to do. So those are the two major levers, but it's even darker than that because of the, I mean, Ben Wittes has written about this quite a bit, the ability to literally target individual Americans and say, I want you to bring to them full bear the investigative resources of the FBI, go through everything about them, and let's bring a case against them. That's a terrifying power that can be used. I think this kind of relates to the broader questions, but you mentioned Menendez.

Hunter Biden is now, is under investigation. Cuellar in Texas. There's several examples of Democrats that are being investigated by the Biden administration. And yet, none of it seems to have any impact on the perception of the FBI that is being put forth in MAGA world, where they talk about how, you know, the deep state is out to get them, and there's a two-tier the right thing that is changing the narrative of these people that are intentionally trying to damage the agency's reputation without any care of what the actual reality is of what's happening. It's frustrating. The only thing you can do is just keep pressing on and showing as much of your work as you can to the American people. I can remember when I first became director in 13 and went to hearings on the Hill, and people who knew better would say things about the FBI Republicans. And all we could do is just try and shout back into that wind and hope that it reaches not the cultists, but that it reaches a broader swath of Americans and tries to foster their trust in the system.

Because the justice system depends upon the faith and confidence of the American people. You're not going to reach a MAGA world, but I hope there's still a big piece of America that you can show your work to and regain confidence or maintain confidence. Do you think that America's struggled with that a little bit? I mean, I don't know that there's a good answer to this. You know, a lot of times, I think I've heard you say there are two doors, they both lead to hell, like all their doors and the choices you had to face. A lot of these choices are just bad all around. But I worry about the less, as you said, some of the MAGA folks are never going to are unreachable at this point, which is a problem

in its own right. But what about the lower info folks that are kind of seeing what's happening with these Trump indictments, and are maybe sympathetic to the idea that this is political, that the Biden team is after them? Obviously, Merrick has been sort of waffling on this, and I think was took a lot of time to decide whether or not to indict them Then they kind of finally moved forward and he hasn't spoken out that, you know, he hasn't explained that much. He's had a few public appearances. All of these choices are defensible, I think, in the micro, but in the macro, like what do you think about how they've done at explaining this stuff to

goodwill people who are less engaged in the minutia of what's happening in Washington. Yeah, not well. I'm about to throw rocks when I was a bit of a rock catcher in government, so this is not fair. But my sense of it is they're really well-intentioned, but living in a different age. I won't pick up Merrick Garland. I'll pick up my friend Bob Mueller. I mean, Bob is a person of tremendous principle and integrity, but one who long found the press and communicating with the press distasteful.

And we used to have this argument because to communicate with the press is the way you communicate with the American people. But you also have lots of other ways to communicate with the American people that are foreign to a Bob Mueller or to a Merrick Garland. My frustration about the Mar-a-Lago search is millions of Americans were getting a lie buzzing in their pockets multiple times a day and not having anything buzzed to offer them a different view from the Department of Justice. And Merrick Garland, again, wonderful principled person, gave a press conference and read a statement.

That is not how the American people get their information. And so I would have hoped there would have been people around the attorney general who would say, you know what, here's how Americans are getting their stuff. So we ought to make sure that you speak in a clip and then we push it out through this platform and that platform to communicate with them. It was no different when they only got their information through broad sheet newspapers. You made sure you communicated in that way. So I've been frustrated by sort of the old school approach of the Department of Justice, which is principled, but old school. And so it's not reaching people. People have asked, have they overlearned the lessons of some of the beatings I took? Maybe, but I actually think it's just the kind of people these are, principled people who are even older than I am and have been around and done decisions in a lot of different institutions, including Department of Justice, but also the media and other places. get away with his mendacity and lawlessness to try to maintain some nonpartisan credibility

to try to you know seem even-handed you know or you can treat him differently than other politicians and as a result end up like probably losing trust of his biggest supporters which you might lose anyway you can tell which side of this argument i'm on do you think that's fair like if do you feel that that like that whether it's merrick Garland, whether it was a situation you're in, that, that people in these institutions, like have this burden of trying to choose between kind of letting them off the hook a little bit or, or treating him differently than they would treat other politicians? That's a great question. I don't know for sure. My reaction is that you don't have to change your principles

and your values if you're the leader of, say, a justice department. You just need to change your tactics a bit. That is, you're facing a demagogue, the demagogue our founders feared has finally come and he's able to communicate and manipulate millions of people. And so your duty is to protect public faith and confidence in that you're just, that your work is the Justice Department. And so the means by which you serve that duty could change, but I don't think you think of it differently. That is, you know, you have to be out there all the time communicating to try and make sure the lies don't take hold. So it'd be very unusual to have the attorney general speak about a search, the execution of a federal search warrant, right? I don't know that's ever happened. I was urging him to do it within an hour. That's never happened.

But you've never faced a demagogue like this. So I think the principles can be the same, that the means just have to change. Yeah, but you can understand how somebody like that would be like, well, this is me treating Trump differently, right? This is me maybe putting my thumb on the scale that I feel like I have to go out and rebut him moment by moment. I'm not rebutting everything that Bob Menendez says about his gold bars, you know? And so I can understand the reticence to do that. And I totally disagree with it.

But don't you think that is what is undergirding a lot of this? Maybe. And if I were advising him, I'd say you're framing it wrong because you need to keep your eyes fixed on your obligation to protect public faith and confidence. And if the corrosive messages were being beamed from a Chinese station on the moon, you would have to figure out how to respond to that so the American people don't lose public faith and confidence. So I don't think of it as putting the thumb on the scale. I think of it as being true to your obligation to protect the institution,

no matter where the threats come from. I just wonder, I'm going to get nihilist now. I'm going to be the dark one is is it possible to protect these institutions in the face of something like trump so i like look back at you know i've listened to some of your interviews about 2016 and what you were thinking about and it's like this whole time you're trying to maintain faith in the fbi you want the fbi to be non-political right that it's it's a it's different from the hoover days that had been like this for decades and so you know you feel like all right well that need to project fairness you know was i'm not saying the sole decision for publicly speaking about hillary but like part of the decision right and that need to protect fairness to protect the image of fairness

you know was something you guys were discussing in dealing with Trump on the Russia investigation and dealing with Hillary on the email investigation. Was it possible if you have one demagogue that is poisoning 40% of the country to think that you are bad, and then you have the other party that's like, you know, playing within the rules, maybe coloring outside the lines a little bit from time to time? Is it possible to maintain a nonpartisan institution's integrity? I guess the answer is no, but it's hard to answer because it's not a binary. That is, it's just different shades of gray, the reputation of all different parts of our government, the Justice Department being one of those just ebbs and flows over time. And so I guess my

response as a leader is, all I can do is what I think is most consistent with the values that are supposed to underlie the place. If the American people decide they don't want to believe it, they want to be a different country, they want to be a different kind of people, I can't control that. I can just do what's best from my position. But so I realize that's unsatisfying, but I really, I don't know is the answer, whether it's successful. I mean, one of the Bureau's problems has long been in a good way, it lacks friends in high places, right? Who speaks for the FBI, really? We've designed it so that the FBI director is never supposed to be inside the tent pissing out like Lyndon Johnson wanted

Hoover to be. And as a result, you're a politician. You should not trust the FBI because the FBI does not give a crap what party you're from. If the gold bars are in the closet, they're going to lock you up. And so in a way, its independence is a threat to its independence. But at the end of the day, all you can do is communicate, try and act in the way that the institution expects you to act, and then I can't control the rest. It's tough.

But I guess the media should be the one that is on the FBI's side, because they're the ones on the side of truth. As long as the FBI is acting responsibly, it should be that. But in the world of partisan media, you lose that megaphone as well. You've relived 2016 a bunch. So I just want to do one counterfactual with you on it, because I think that there was something that was happening in late 2016 that was a fundamental flaw of a lot of people, myself included, I think Barack Obama included.

And that is that we all assumed Hillary would win. And that the assumption that Hillary would win impacted choices. I think it impacted the president's choice not to push harder for Merrick Garland to be on the Supreme Court or to work out some sort of deal with Mitch McConnell. Because it was like, whatever, we'll just deal with it next year. I think that it impacted some of the way that the media covered it. I think the way that some voters voted, like honestly, was impacted by assuming this guy couldn't win. I wonder if a person from the future, if the genie had come to you and said, Donald Trump is going to win.

Do you think you would have done the same thing? Yeah, that's a great question. I've asked myself that a bunch. And what I would have told the genie is, I can't listen to you. I can't consider that. I can't consider where things stand. But I wrote about this, and it caused me all kinds of heartache that I did. But I know how the human brain works a little bit.

And I consciously pushed away all polls, all of that. And one of my best people asked, should you consider whether this might help elect Donald Trump? And I said, hell no, we can't. But I was living, as you were, in a world in which the air was Hillary Clinton is going to be the next president. And so I'd be a fool to say that had no impact on me. It didn't at a conscious level, but I'm living in that world where I'm making a decision. The other door to hell was to conceal that we had restarted an investigation that might end up in a different place after Hillary Clinton is elected president, which would be for her and the country devastating. But I think I'd tell the genie, go away. And then it would probably influence me in some way, honestly. And I've also asked myself the counterfactual, should I have done? I actually don't think the call was that hard for me.

But should I have done what I think would have been? To write the letter, you mean? Tell Congress that my testimony had been inaccurate? Should I have, if I could go back in time, should I have done what I believe to be the unethical thing and armed with knowledge of the future, make a decision to make it harder for Donald Trump to become president? And that's when I stop asking myself these questions. You know what I'd love to see someday is an analysis of proves I was irrelevant. I'm sorry, life isn't like that.

But I was in my pajamas in 2020 and the vote closed, narrowed in the same way. Late deciders went for Trump in the same way. And so I would love some PhD candidate to do that work, but I've never seen it. Yeah, sure. I'd love to be off the hook too, but I know. I don't think we unfortunately get that in life, or maybe in the afterlife. I don't know. What is it like for you to think

that when it comes to the rule of law when it comes to the conviction about about your distaste for the way that donald trump has assaulted all the things that you care about like at a values level and at a career level and like that there's a group of people that you're totally aligned with in that, like ideologically, values-wise, philosophy-wise. And a lot of them look at you and say, I hate you. Like, what is that like? Do you think about that? Yeah. I mean, sometimes I encounter it for real.

I occasionally have someone literally say, fuck you on the street. And I have to pause and say, so is that a left-, fuck you or right wing, fuck you? Between educational polarization, can't you figure it out a little bit? The sentence after fuck you doesn't give you any hints. Right. And the articulation. Yeah. Well, someone said on the streets in New York not long ago, fuck you, what you did to this country was disgraceful. And so I paused and I thought, hmm, I guess the use of disgraceful probably tells me it's a left wing, fuck you. But look, it's painful and I risk sounding like I'm overconfident, but I've thought a lot about the decisions I made in 2016. And even after all this time, I'm comfortable

with them. I don't think I could have made the other decision. I hated it at the moment and I knew it would suck years from now because people would never fully understand it. And so I'm kind of a little bit numb to it, honestly. I'm just going to be honest. I would have liked to hear that you're like, it torments me once a month. I wake up in the middle of the night and I'm like, oh, Jim, I kind of wish that. I know that's maybe the darker part of me that wishes that you are just once a month tormented because I'm tormentedmented this is the thing that frustrates me is that we're all rending our garments here on podcasts like did i make the right call did i make the ethical call and they don't give a f and that is an advantage like it's a political advantage they have that's the

frustrating thing for me yeah it is it is one It is. One more kind of moral weight question I have for you. Like, let's say Trump hadn't fired you. Like, how long do you think you could have stayed? Would you have considered resigning? Talk to me about the moral calculus you think about people that were in then, and then kind of project that out to the possibility that I might win again. What are people in your kind of world who have responsible jobs, who are responsible for lives, what are they supposed to do in the face of that? Yeah, I thought about that a lot. And after 16, in the first five months of 17, I was determined to stay because I thought my obligation was to try and protect the institution

from a really bad guy. And I thought and I knew it was going to be agony because I'd have to decide, so how much can I bend to protect this place? And what's the trade-off between sort of pieces of my integrity and the institutional integrity. And honestly, I thought it's going to be really hard to stay. I will never quit. But with this guy, we're so different. And I'm only going to bend so much because at some point, my bending becomes the institution bending in a corrosive way that it wasn't going to work out. But I was going to try and I dreaded it. But I thought I just have to stay. So I think that's the calculus that people are making in those jobs is how long can I stay? How much of myself can I

lose in service of something that's more important than I am? And it's hard. I think Christopher Ray, my successor, is a principled person, used to work for me, somebody I know has strong integrity. And he stayed silent after January the 6th, I think, so that Trump didn't have an excuse to fire him in the last three weeks of the Trump administration and replace him with one of the Matt Whitaker wingnuts, taking a break from extra large toilets to run the FBI on an acting basis. And he knew how much harm that would do. So I think he made a choice, which was, I'm sure, an agonizing choice for him. Don't say anything.

Don't be public. Let the head of the Washington field office represent the FBI so that I'm able to stay and protect the institution. So there's thousands of those choices being made. And I sure hope those good people don't have to make them again for four years. I'm genuinely torn about this. I kind of fall in. And this is maybe wrong. I kind of think people should have quit and not protected us from him and had people had

to deal with the consequences of their choice. And I think that maybe, maybe not. I don't think it's a guarantee that we wouldn't be here right now had Trump not had people protecting him. But I think maybe we wouldn't be here right now because the damage would have been such that something would have come to pass that would have prevented Trump from returning. But I don't know. I think it's tough. Yeah, you might be right.

What would you say about somebody that came to you and said he wins to call you in November? They're the deputy director. So like off the record, do I stick? What do I do? What would you say to them? I would say stay as long as you can. Again, consistent with your values. Don't trade yourself. But you may be able to because you know the institution, you may be able to hide the institution a little bit from the power of this really bad man. You may be able to be a buffer between the career people and the institution. It's just very hard to say because it's not, you can't predict what the trade-offs will be. But just never forget that there is tension between those two interests, your own interest in the institutions. And at some point, you just have to have a line where I will not cross this line.

I will not act in this unprincipled way. And I will not enable this bad man. But what I advise them is don't put yourself in that position to begin with. I've advised a lot of people about what to do in terms of joining the Justice Department during the first Trump administration. And I told them all, join at a career level. If you join the Southern District of New York, you'll be away from him. But don't join in a way that will bring you into that orbit where you'll have to make those choices.

What do you think the scale of the threat is ahead of domestic unrest in the fall? Like if you're at the FBI right now, what would be your threat level? And obviously, you're not getting briefings, etc. anymore, but just from your experience, I have a reaction that may surprise people, I think there's a continuing threat of one off individualized violence against public officials and and election workers and people like that, because the poison is flowing through megaGA world. And so people will be motivated to threaten, which is awful, and in individual cases to do harm, which is awful. So I don't want to downplay that at all. But I think the risk of large scale violence is very, very small, approaching zero, because a message has been sent, a deterrence message after January 6, especially,

which is you, you F around, you will find out and it will ruin your life. What DOJ has done since January 6th is really important. And I know this from talking to people still in the game. They scared the shit out of a lot of people who are not jihadis. There's nobody, not nobody, almost nobody looking to lay down their life for the orange god king. Instead, they're people who are caught up in the cult, but they have families and jobs and ties in the community. So they are deterrable and they've been deterred. And that's why there's no big crowds at Mar-a-Lago.

There's no big crowds outside the 100 Center Street. There aren't going to be big crowds at an inauguration, no matter who's inaugurated the next president, because a message has been sent that has been that's been heard. You said F around and find out. And, you know, I'm feeling less bad about all my all my cussing on the podcast. One of the things I really, I really wanted to get to people might not know about you, especially if they're younger than me, or if, you know, everything's washing away like the sands of time in the news these days, but in the before times in the pre Trump world, there's this amazing story that you were involved in, where you're in the Bush administration, you're a deputy attorney general.

And you're one of the very few that spoke out about preventing the use of torture. And there is this moment where this comes to a head where John Ashcroft is in the hospital and you're at his bedside. I was wondering, for the listeners that don't know that story, if you wouldn't mind sharing it. Yeah, we had a collision inside the administration over a classified program. And the attorney general was stricken with what was called acute pancreatitis and was in intensive care, very, very ill. And so I became the acting attorney general. And we had been telling the White House for weeks that the

program was reauthorized by the signature of the president every six weeks or so. And there was a line on the president's order that said approved as to form and legality, and it would be signed by the Department of Justice. And we had told them for weeks, we can't sign off anymore because there's a real problem with the legality and constitutionality of what you're doing. And so we're not going to do it. And the attorney general went into intensive care. So that meant I was the person they wanted to sign. And because I refused, one night, the two White House officials went to the intensive care bedside of the Attorney General. And I learned of it on my way home, because the Attorney General's wife called his chief of staff and said, there's people coming

over to see John Ashcroft. And we've said no visitors, but they said it's an urgent matter of national security. I remember where I was. I was in an armored car on the way home, driving right by the Washington Monument. And the attorney general was at GW Hospital, which is not far from there. So I said to my driver, Ed, I need to get to GW Hospital now. And I don't know whether you know security guys, but they live for this kind of stuff. So that baby puts on lights and sirens and starts driving like crazy. And I started making calls. And I called Bob Muller, the FBI director, who was at dinner with his family, told him what was happening. He said,

I'll be right there. And then I called a bunch of my other friends and my staff, who were my friends, and told them I need them to get to GW Hospital. And then a race started. And I got there first and ran up the stairs to the floor where the attorney general was and tried to orient him, went into his room, and he was totally out of it. And then I had Bob Mueller on the cell phone speak to the lead agent, the FBI protected the attorney general. And I asked him to please direct his agent not to allow me to be removed because I knew these White House guys were coming with Secret Service agents. And so the head of the detail listened to his director and then said, sir, to me, this is our scene. You will not leave

that room. And so I went in and sat down and waited. And then these two guys came in with an envelope. They clearly wanted the almost unconscious attorney general to sign. And he pushed himself up on his elbows when they asked him and he blasted them. And then he fell back and he said, but none of that matters because I'm not the attorney general. Then he extended his finger and pointed at me sitting next to him and said, there's the attorney general. And these two guys didn't look at me, didn't speak. They turned on their heels and they walked out of the room. My favorite part of that whole terrible night is the attorney general's wife never left his bedside. She was on the other side of the bed from me holding his arm. And when they turned to walk

away, she's a very bright person, a University of Chicago law graduate. She went like this. She stuck her tongue out at them. And they walked out. And then moments later, after they were gone, Bob Mueller arrived, went in and saw the attorney general and said to him, Sir, there comes a point in every person's life when the good Lord tests them. You passed your test tonight. So we stood. And ultimately, President Bush, after talking to Director Mueller and to me,

changed course on this thing. And so I stayed, although I knew they hated me like sin. And so I left government in 2005, never to go back. And we saw how that turned out. It's an amazing story. It's enough for fiction to get into fiction it is also a reminder there's some really bad guys around w um on this stuff and i i didn't see it i was young but i didn't see it at the time john mccain was one that really opened my eyes to this when i started working for him out of college in 2008 and and he was very clear-eyed and principled on this as well the fiction part of it that could have been a fiction a story i wish it was fiction frankly me too i think about this you know people say that to me too sometimes like oh you should write fiction i'm like it is so intimidating to me and so um i'm wondering what was that like for you and the thing that

is the most intimidating for me is kind of this idea of remembering creating these fake characters and kind of like remembering who the characters are and what their stories are and how it goes. And like, sometimes it's hard for me to remember real life, like what happened, you know, and I can at least Google that to confirm I'm right. How did you kind of deal with that transition? How'd you think about it? That's a great insight because that's the hardest part. I've always loved to write. I thought I would be a journalist when I was in college. I did a lot of writing of all different kinds. And so the writing part is not the hard part for me. I got to the point where I tried fiction because an editor of my nonfiction work said, hey, man, you really write dialogue well, you write narrative well, you keep pace

well, you should try this. And he kept referring to parts of my nonfiction work as this scene, that scene. And I kept saying, it's not a scene, man, that really happened. parts of my nonfiction work as this scene, that scene. And I kept saying, it's not a scene, man. That really happened. But what made nonfiction easy is you just had to try to get it right, right? You had to check the original sources. You had to make sure the details were right. The hard part of fiction is just what you said, is you make these people up and they have, at least with me, they have a tendency to drift. And this is where my wife saves me because she reads everything. And she's done a lot of fiction reading, which I had never done. And she'll say, hey, these two characters are starting to sound like each other. They're

drifting offline. And then I'll say, oh, the woman character is starting to sound like Jim a little bit. First, I'll deny. I'll say you're completely wrong. And then I'll realize she's right. And then I'll go and see it and try to fix it. And a big part of it is like reading dialogue out loud to make sure that they sound different from each other. But that's the hard part is keeping them easier for me because my two main characters are based on people that I knew. And one of them is my daughter.

And so I close my eyes and picture them. And that keeps it on track. But it's harder than nonfiction. And so I close my eyes and picture them and that keeps it on track. But it's harder than nonfiction. And that surprised me. Has it been a slog? Has it been joyful? Like, do you want to keep doing it? Yeah, I think this is my job now. The first one did well enough that I think this is my job. I love to write, as I said, and what makes it fun for me is I can show people institutions and places through fiction with a freedom that you really can't in nonfiction. And I can also show myself. It's a little bit of memory lane for me, although I write in the current day. And then again, what makes it

fun is it's a partnership with Patrice and then my kids, all five of my kids edit and push me. And so it's a thing to do now that I'm an old fool that keeps me connected to my family and that where I can get lost a little bit, but also challenged because it's a hard thing to do. So I'm a grandfather and a writer. That's my life now. So do you have other ideas? Do you have other books coming? Yeah. The third book is actually out for, it's almost done with Family Review,

which will come out next spring. And that's about white identity extremism, which is the Bureau would call domestic terrorism. And so it's also based in New York. My protagonist, Nora Carlton, is a federal prosecutor, and she's dealing with a really hard domestic terrorism situation. And so, look, my wife, again, she's my story guru. And so I can picture at least nine books at this point, because I'd like to do three here in New York, three in Virginia, where I used to live live and I've stayed away from DC because it's so icky the pain is not dulled enough in my mind but I'd like to get to scenes in the White House and FBI CIA DOJ so that'll come later yeah I don't know I don't even know if I could do it it's interesting

that you do it it's on the work like I was like if I ever was to try fiction I feel like I'd want to do gay romance or something I don't think I could do a political campaign thriller or media. I just don't. That sounds not fun. I want to close with a philosophy thing, but there's one thing I forgot to ask you that I meant to ask you. You know, probably because of the reasons we've been discussing, the two hell doors that you had, you know, having Jim Comey out on the campaign trail with Joe Biden's probably not that helpful this year, though maybe there's certain things you could do. What about some of your other colleagues, though? I do think that there's some people that work for Trump that do have gravitas that could speak out, could do a little more. What do you think about that calculation? I think that some of them feel

maybe out of ethical reasons or principled reasons that like, you know, they shouldn't be in TV ads, so they shouldn't be in Scranton on a speech stage. But I don't know, maybe they should be. What do you think about the ex-Trump officials choice this year? Because the stakes of this election are so incredibly high, I think that they ought to find a way to participate where they can be effective. And I agree with you, man, I'd be knocking on doors in Scranton, but I'm looking for the same thing. How can I be helpful? I don't want to do anything that's counterproductive. Like in 2020, I spent a lot of time talking to university audiences because I thought that for some reason I connected with

them, they connected with me. And I wanted to make sure that if there was a marginal difference I could make, I made it because I didn't want to leave anything in the locker room. I hope my former colleagues see it the same way. I hope former Republicans and Republicans see it the same way. I them. They ought to be saying, this isn't about policy. This is about the rule of law and what is America. We'll get back to fighting about the other things we disagree about. They ought to follow the bulwark's example and say, okay, there are principles at stake here that require everybody to get in the game. Sitting out is a vote for Donald Trump. Writing in your favorite philosopher is a vote for Donald Trump. How dare you? This is something much, much more important than any of that nonsense. Well, I might have some homework for you then. Maybe the way you could be helpful is to try to compel some of your old friends to be a

little more helpful. We could talk about that. All right, my last thing for you. We're talking to Ben Wittes, also your good friend on today's episode. He was part of your Twitter outing unintentionally. You had a secret Twitter, Reinhold Niebuhr, who is a Protestant theologian. I got to tell you, I've always thought about that as kind of a contradiction in terms. And so, I don't know anything about Reinhold except for your Twitter feed. So, I was maybe thinking you could end with that. Why was your Twitter feed named after him? What could somebody read about him?

What are some of the morals and principles of Niebuhr, the guide to the end? Niebuhr was a philosopher and theologian in the first half of the 20th century and was at Columbia and at Union Theological Seminary in New York. Niebuhr, to my mind, can be boiled down like this. Yeah, people suck. Yeah, the world is evil. So get your ass out there and try to do good. It doesn't relieve you of your obligation to participate. There's no such thing as, in Lieber's view, God's love on earth because people suck too much.

The best you can achieve is justice, which is a balance of power. So if you're going to achieve a balance of power, it requires you to participate in the public square. So get out there and do it. Don't be starry-eyed because people really do suck. They're flawed beyond belief, but that increases your obligation to try and participate in protecting the weak. That's the essence of it. It had a huge influence on people far more important than I. Martin Luther King was a Niebuhr reader and follower, so was Barack Obama. And Niebuhr hit me at the right time. I went to college in a very dark frame of mind because of some things that had happened. I've been the victim of a pretty awful home invasion, violent crime as a senior in high school. And I kept thinking, people suck.

And I read Niebuhr who said, you're right. Next, it doesn't relieve you of anything, you lazy bastard. So get out there and try and make the world a better place, knowing how much it sucks. People who are studying Niebuhr, I hope they don't listen to this, are going to groan. But that's why Niebuhr's philosophy touched me. And I think in a fallen world like ours, it's a really compelling way to see things. I love that. Final question. What was with the Meadow tweets? You know, six foot eight, Jim Comey looking at a babbling brook. You know, the photos, you were sending cryptic photos. What was the deal with that?

I'm not sure there was a deal. My wife would take a picture of me and say, you know, you should tweet that. And I'd say, okay. That was it? There it is. There was no cryptic message. There was no message in the leaves. There was no, this wasn't an FBI thing. No. CIA thing.

No, there was not. Okay. All right. Well, I was just trying to think. I was like, if I was having a beer with Jim Comey, what I want to ask him. That was the last one. All right. Thank you for coming.

Come back to the Borg podcast sometime. I do kind of hope that you wake up once a month in terror but i hope that was love because it's just like we're all stuck here in this in this alternate universe that donald trump left to us so uh thank you for coming to the board podcast the book is called westport it's called westport i'm terrible with book names i like even books i'm reading right now i forget the names of the books. Look at this. You can tell my publicist I held it up.

Boom. Hey, the book is called Westport. Go get it. It's a summer read, and we'll be talking to you soon. Thank you for your support of the Bulwark, and we'll see you around. Thanks for your voice, Tim. Keep speaking. I appreciate you.

Thanks to Jim Comey and to all of you who sat through PTSD-inducing reflections on the 2016 campaign. Up next, our man in Manhattan, our Trump trial correspondent, got me feeling so good. Said I'm a liar, said I know that it's fine, I'm tired. I'm a bad bitch, baby, I'm the baddest, I'm the baddest, I'm the baddest. All right, we're here, live from Manhattan, Ben Wittes. You know him, editor-in-chief of Lawfare, senior fellow at the Brookings Institution, writes Dogshirt Daily, Man of Lawfare, senior fellow at the Brookings Institution, writes Dogshirt Daily, Man of the People, Ukrainian activist. What else? Do you have any other titles? Husband?

Yeah, I mean, I'm a, I guess, wearer of dog shirts. Wearer of dog shirts and ostrich shirts? You come up with my phone in an ostrich shirt for some reason. Yeah, that's an emu. And it gets very offended if you call it an ostrich. I'm sorry, emu shirt daily. We're gonna have to update it. We talked with Rick Wilson yesterday a bit about Costello from the outsider's perspective, this defense witness that was, I guess, supposedly their star witness that like lost his mind and started doing like a Goldberg stare down on Judge Mershon. And so I'm dying to hear your take from having, you know, seen it in 3D.

Yeah, so I was in the overflow courtroom when it happened. Costello shows up, he's a criminal defense lawyer, but he's got a pretty distinguished pedigree. You know, he was a big wig in the US attorney's office back in the day in the Southern District. But he's definitely kind of broken bad. And he's, you know, there because Cohen had basically accused him of being part of this pressure campaign that was directed against him to toe the line. And there is a long string of emails that seems to validate this. And so he's now called by the defense, and he's really the only defense substantive witness. And he shows up, and he is just kind of openly contemptuous of the prosecutor and the judge. And there are repeated objections to things that he's testifying to, and the judge is

tending to sustain them. And he kind of rolls his eyes, and he sighs, and he at one point says, geez, as though he's kind of got this running commentary of what Justice Merchan is doing. And, you know, there's only so much of this that Justice Merchan is willing to take. And so at some point, he excuses the jury and says to the guy, look, when I make a ruling, you don't sigh, you don't say geez, you don't roll your eyes at me. This is my courtroom, and I'm the judge. And the guy seems to accept it. But then moments later, he just starts staring at Justice Mershon. And Mershon, who is... What kind of stare? Like... What kind of stare?

Like, what kind of stare? Like a mean mug? It was like a kind of, you don't intimidate me, I'm a badass, you know, lawyer with an Italian last name kind of thing. Oh, what is this man? Like 70-ish.

I mean, he's not a young guy, white-haired guy. And Merchan, who has been just a model of appropriate decorum and behavior the entire time, sort of snaps and says, are you trying to stare me down? And then he just says, clear the courtroom and they throw out all the journalists. And what we see in the transcript in the moments subsequently is that he says to him, basically, your behavior is contumacious and if you don't cut it out, I'm going to hold you in contempt. And so it's a hell of a moment. It's the most dramatic moment of the entire trial. It's on a point that's completely marginal to the charges against Trump. You know, like, oh, this is the part of the case where an aged lawyer, you know, gets into a staring showdown with the judge. So then the jury comes back in and Costello is mostly on best behavior

for the rest of his testimony. Although best behavior, he's still really sarcastic. And you know, I can't imagine he made a good impression on the jurors for whatever that's worth. And this guy, we talked a little bit yesterday about how um you know he was kind of a mediator between cohen and giuliani until giuliani stopped paying him like such like a bad mobster movie he was also bannon's attorney and i guess like he impressed trump was it with a cable performance or a kind of like trump wanted it because like the contemptuousness was kind of a feature not not a bug, right, for Trump? I think that's right. So Costello, he's a relatively small player in this story. He comes up because Cohen is describing this pressure campaign that was put on him after the FBI raid or search warrant against his house and office.

And he talks about how this guy Costello, who's close to Giuliani, gets in touch through a mutual lawyer friend and wants to represent him and really pushes to represent him and sells his bona fides as a lawyer is that he's got this back channel to Giuliani. And the implication is, you know, the White House will take care of you if you toe the line. And that's the significance of his story. The defense brings him on notionally to rebut this. I have heard, I haven't watched any of the television coverage of this. My impression is that he did go on either Fox News or some other network to sort of deny Cohen's story. And why this has to do with whether Trump falsified business records to cover up a payment to Stormy Daniels is completely beyond me. But the prosecution put on this testimony by Cohen. And then as a result,

the defense gets to kind of try to rebut it. And so that's how the situation arose. Trump did not testify. Shocking. You know, it's amazing. He said he was, was he really wanted to and yet once again he actually when push came to shove he didn't didn't do it for the interview with your friend Jim Comey on this episode you know I was just kind of searching through trying to refresh my memory on everything and there's this New York Times headline from 2017 that's like, Trump says he would gladly testify under oath about the accusations Comey makes. It's like, story same as it ever was. Did that testimony ever happen? No. It turns out, I will definitely testify. These people are lying. I will testify. I will testify. I will testify.

And then, no, this guy's not going under oath. Correct. And look, I mean, that is his absolute right under the Fifth Amendment not to testify. And the jury will be instructed, of course, to make no inference against him on that basis, as well it should. I think the public is entitled to make whatever inference it wants as a matter of judgment. You know, he has an absolute legal right not to testify and for us not to hold it against him. That's not the way journalism works. It's not the way voting works. And it's not the way history works. Here's the Times headline, calling Comey a liar, comma, Trump says he will testify under oath. Yeah, Jim Comey is many things. He is not a liar.

And Trump, as that headline reflects in retrospect, is also many things, including a liar. I talked to Jim about this quite a bit. This is true of this New York Times headline that we're looking at. It's true of Judge Mershon at a certain level. You wrote in Dogshirt Daily this week about how he was a very fine judge, about how in the face of all these attacks on his family, you know, and just the clown show outside his courtroom with all the guys and many Trumps and their red ties, you know, lying about him. Like he managed to continue to be fair not treat trump differently than he would a different type of defendant all that said like there's just this pattern of judges reporters fbi directors like trying to be fair in the face of somebody that has no interest in

fairness no interest in the truth no interest in the truth, no interest in playing ball, aren't we all just like doing Trump a favor by being too fair? I think too fair for what, right? So, I think there's a very good case that journalism has been too fair and that we are all, you know, trapped in certain norms that value fairness over truth. And that assume that we're going to get to the truth by the clash of perspectives rather than that, you know, one side is speaking the truth and the other side is lying and that the role of fairness between truth and lie is not the same as the role of fairness between, oh, you're this perspective and I'm that perspective. I don't think it is possible for a district judge to be too fair to a criminal defendant. You know, there are rules and the district judge's job is to manage the flow of information to the jury.

It's the prosecution's job to make sure that the information that gets to the jury is enough to convict. But look, the system is stacked in favor of the defendant enough that if you are not careful about how you run a trial, the conviction will be overturned. And, you know, we just saw that in the Harvey Weinstein case, right? And so it is in the interest of both the fundamental values, but also protecting whatever conviction emerges to be careful, to be thoughtful, to make sure you are solicitous of defendants' rights, which are enshrined in five provisions of the Constitution. And Trump is deliberately trying to taunt the judge over and over and over again into making that impossible for him so that he screws up and then there is some basis for appeal. And

Mershon, in my judgment, has been just exemplary in taking it and taking it and taking it and then issuing rulings on the merits. And sometimes those rulings are holding Trump in contempt for violating the gag order. And sometimes they're keeping evidence that the prosecution really wants to get into evidence out. And so I think he's been a model of what a judge should look like. And yes, you are right. It is very frustrating to watch sometimes because you kind of want somebody to throw it back at him in a fashion that would be emotionally satisfying, but would not be good for the system. Fine.

Don't let me have the tantrum that I want, Ben. All right, so state of play. Closings are next Tuesday, so we have a little lag here for the Memorial Day weekend. What are we expecting? What are we expecting from the defense closing? How long do we think this is all going to take? Is this thing going to be wrapped up next week? What's your sense?

My sense is that closings will take all of Tuesday, but will probably not spill into Wednesday. They may. And that Wednesday we will have the jury instructed and sent out. And then it will take as long as the jury takes to either reach a decision or not. I do think in an unusual way, this case will depend on closing arguments. The prosecution has put an enormous amount of evidence into the record and has shaped it very little. If I have one criticism of the prosecution, it's that it was, you know, a little bit of, you know, a shotgun approach. They just, you know, fired a lot of,

to mix a metaphor, spaghetti at the wall. And now in the closing argument, they have to kind of tell the story and tell you what it all means. The defense has, as I have said multiple times before, crystallized around this three-prong theory, you know, that there's nothing wrong with election interference, that's called elections, that Michael Cohen and Stormy Daniels are both terrible liars and you shouldn't believe anything they say, and that Cohen was in fact Trump's personal lawyer and was paid for that and therefore there's no record falsification. I don't think they have a prayer of persuading the jury of that latter point. But I do think the goal is not to persuade the jury.

The goal is to persuade one juror of one of those components and to see if you can get a hung jury as a result. Well, that'll be exciting. We will have you back next Wednesday, I hope, or you're not traveling to discuss? I will be free and available as soon as the jury goes out. All right. Well, I look forward to talking to you next Wednesday, getting a blow by blow on the closing statements. Thank you for your continued work as the Bulwark Podcast correspondent in Manhattan and our man in New Amsterdam, Ben Wittes. We'll be talking to you soon.

Take care. All right. We'll be back tomorrow with another fun interview. We'll see you all then. Peace. And yeah, I know how bad it must hurt to see me like this But it gets worse Now you're out here lookin' like regret Ain't too proud to beg, second chance you'll never get

And yeah, I know how bad it must hurt to see me like this But it gets worse Now payback is a bad bitch and baby, I'm the baddest You fuckin' with a savage Can't have this, can't have this And it'd be nice of me to take it easy on ya But nah Baby, I'm sorry

Baby, I'm sorry Being so bad got me feeling so good Showing your wife like I knew that I would Baby, I'm sorry. Being so bad got me feeling so good. Showing your wife like I knew that I would. Baby, I'm sorry. I'm not sorry. Baby, I'm sorry. I'm not sorry. Feeling it's fire because the table's captured.

And I'm on fire, but I know that it's fine. I'm sorry. The Bulwark Podcast is produced by Katie Cooper with audio engineering and editing by Jason Brough.