The Daily Beast Podcast - Preet Bharara: There Could Be An ‘Avalanche of Revelations' If Trump Loses

Episode Date: October 25, 2020

Preet Bharara, the former U.S. Attorney of the Southern District of New York, joins “The New Abnormal” host Molly Jong-Fast to chat about the last presidential debate, the story leading up to his resignation, and why there could be an "avalanche" of new revelations if President Donald Trump loses the election. Bharara said that the presidential debate was "relatively normal," but that's no thanks to Trump or his opponent Joe Biden. "The person I credit most for that as most people do is Kristen Welker," he said.  Jong-Fast then reminds Bharara of one of his proudest moments from 2016: Not calling Trump back. He details the incident and why he doesn't regret his decision for a second.  "It is a good thing for public servants not to so badly cling to their job… that you won't do the right thing," he said.  Next, Jong-Fast and Bharara chat about the impact of the election outcome and what will happen if Trump loses.  "My guess is there is going to be a cascade of people who are going to write books for a lot of money, or good citizens who are going to blow the whistle on all sorts of things… that we don't know about yet," he said.  Adding, "I also think the potential for bad conduct and bad activity during the transition, if Trump definitively loses, is going to be very high. It's going to be very difficult for either Congress or some prosecution authorities to ignore what could very well be an avalanche of revelations after January 20, about this president and the conduct of the people in this administration." Lastly, they discuss how someone with Trump's background could never get a national security clearance, Bharara's book Doing Justice, plus more! Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Preet Barara is the former district attorney for the Southern District of New York and the unofficial AG of Twitter. The host of the podcast, stay tuned and author of the book, Doing Justice. So what did you think of that debate last night, the sort of only normal presidential debate? Well, normal is a relative term. I thought as a comparative matter, compared to the first debate, it was relatively normal. And the person I credit most for that, as I think a lot of people do, who was Kristen Welker. And I remember in the lead up this week, I was saying to people, How much does it suck to be Kristen Welker? Yeah.

Who is a very good journalist and has seen what's happened to other good journalists, including Chris Wallace, who I think is a very good journalist and generally a very good interviewer and a very good debate moderator. And you see the corpses of these previously highly respected folks on the side of the road. And on top of that, you have the guy with the biggest bullhorn in the world, in the history of the world also, saying you're terrible and attacking you in advance. I'm talking about Donald Trump in case you're... Yeah. And you just go into this event, you go into this event. And I'll tell you, I have learned over time, I've been in dicey situations myself, to always look calm and always look confident, even if you're not on the inside.

But she came out on that stage, and she just gave the introduction. And I was texting some friends of mine and mutual friends of hers and mine saying she looks so supremely confident and ready. I was kind of stunning to me. And then she continued in that vein. I mean, I think it got a little bit dicier towards the end. But my reaction to the debate was, A, she did a great job that I think. what had become, in my mind, a complete lack of faith that anything useful could happen in the debate has been assuaged, that Donald Trump didn't do anything particularly good or bad. Joe Biden, I thought, put to rest, you know, some doubts about that people were trying to sow, I think, illegitimately about his mental acuity. And then nothing changed. Don't you agree? Nothing changed? I mean, he seems crazier to me when he pretends to be normal. Right, because at least when he pretends to be normal, you think, like, wait, he's saying this strange stuff, but he looks like he's at least he's not, you know, running around the stage trying to beat somebody up.

He's not running around the stage trying to tuck in his pants. He's not Rudy Giuliani in it, right? I mean, Borrell hasn't. Not muddialing anybody from the stage. One of the sort of famous things you've said is that the best thing you ever did was not calling Trump back. Can you time travel with me back to 2016 and talk a little bit about that? Yeah. By the way, the other time travel, just for the sake of, I don't know if you tell people when you were these things, we're recording this on Friday, October 23rd.

And I'll get to your question in a second, but this is the crazy anniversary. It was exactly at this point, almost this hour, I think, when the deputy use attorney, when I was in office, walked into my office and said, you're not going to believe this. But Jim Comey just sent this letter. Oh, yes, it's today. It's today. This is the point in time. in relation to the timing of the Tuesday election when that letter came out. So all day, let's make sure there's no crazy letter that alters the trajectory of the election.

Yeah, look, so. I have to say, just back to that letter for one second, I think that that was the single largest element in the defeat of Hillary Clinton. I think that's right. And I think, you know, one of the mistakes made was people for this. I mean, Jim, and I respect him and he was my boss and he was a terrific boss as he was attorney. is understanding how that letter was going to be weaponized in a way that would distort what was really happening and ultimately distort what should have happened in connection with people voting.

And the timing of it and all of that was very unfortunate. So I was asked to stay on, which was not something I expected when Trump won as he was attorney in this other district. And then he asked to meet with me, connection with it asking me to stay on. And I went and I met with. So when I tell the story before live audiences, which will apparently never happen again, And I say, who kept me coming until President Elech Trump walked in the room, I say Jared Kushner and people boo.

And then they say Steve Ann, and then they boo even harder. You know, Trump was perfectly fine. It was perfectly fine. Didn't say anything inappropriate at that meeting. Asked me to stay. Complemented SDNY. And then he pushed across his desk a yellow pad, you know, posted pad and asked me for my phone numbers.

Why is the President Elect asking me for my digital? Take you furniture? shopping? Yeah. He's going to call me up on I. Like, you know, what are you wearing? What's going? Like, he clearly wanted to have, you know, a relationship with me as we've discovered after he became president that he wanted with lots of people. He never said anything directly nefarious to me, but it's, there's no question of my mind that I was a person he did not know that he thought he could have some kind of direct relationship with, you know, outside of the attorney general being the loop, outside the deputy attorney general being the loop, because he called me twice before

the inauguration, which was very weird and I reported to the head of transition and I made a note of it And I made sure there were witnesses who knew about the call. And I assumed when he became president he would be too busy to bother me anymore. And then on, I guess it was March 9th. So a few weeks after he got inaugurated. You know, at that point, I didn't know about how much executive time. He had some challenges. And he called me on March 9th and left him.

And his secretary at the White House left a message. So I didn't pick up the phone when the call came in. And then I thought that this is a crisis moment. And some people don't really get that. They think, well, you're only in office because of him. You serve at his pleasure. He's technically your boss. What do you mean you return the call? You wouldn't do that if you worked at AT&T. You wouldn't do that if you worked at, you know, NYU law school where I do. If the dean calls, I'm calling him back. This is different because there's no legit reason that I could think of why he would be calling without going to the Attorney General or without there being a heads up or without a, you know, some notice about what the topic was.

there are actually guidelines and rules that are very, very important that prevent communications about law enforcement matters between people of the White House and people in the Justice Department, except at the very, very, very highest levels. I'm pretty high level, but, you know, I was not the attorney general at the time. And do I know that he's not going to ask me about an enforcement matter? And we had very many that probably he was interested in, including still an open investigation on Mayor de Blasio in New York. And then I remembered, so what if he does say something that he's not supposed to say? Am I going to trust? And this, by the way, now we know this to be true, but this is a prediction of my part. can I trust him to say the truth about whatever that conversation was?

What if he does cross the line? Like now I'm going to be in the position of with no witnesses to report the president for violating some rule. That doesn't sound like a great position to be in. And then I remembered the famous tarmac incident with Loretta Lynch. Right. And president, Bill, former president, he gets on the plane. And I seem to remember somebody making more hay of that than anyone else.

And president's name was Donald J. Trump, who every big rally for you. years ago leading up to the election, he said that private meeting, by the way, between an ex-president and the attorney general, right? It wasn't even the person who might have been subject to a prosecution, just the husband of such a person, even though they had a pre-existing relationship and she served as his US attorney, you know, years earlier. He made such hay of that. This is kind of like that. You know, you have ongoing investigations. You know, the Amoluments Clause case had already been filed, I believe, in the Southern District of New York. And there's all sorts of discussion about what things should or should not be investigated. And all of a sudden, there's going to be a behind-the-scenes

phone call, contrary to all precedent between the President of the United States and the city of United States attorney, who, by the way, went to Trump Tower to meet with him, what kind of deal was made? What kind of understandings were had? What kind of loyalty was requested? And you know what? At the end of the day, I thought, we thought very briefly. People gasped when I say this, when I used to say it a while ago, now they don't, you know, react as strongly. We thought for a minute about recording the phone call. But I thought, you know what? That's a little bit farther than I want to go. And then I called the chief of staff to the attorney general sessions at the time and said, the president has called me. He's called me before. I don't know what it's about. He clearly didn't know what it was about. So he was bypassing the Attorney General in his office. And I said, do you agree with me that I should not return the call unless I know what it's about? He said, yes. So I called the secretary back and I said, I don't mean to be difficult or disrespectful, but I've consulted with the Attorney General's office because we don't know the nature of the call. Everyone's view is it is best for the president and me not to speak at this time. Knowing that he was going to get pissed off about that and be unhappy about that. I can't prove for a fact that these things are related, but the next afternoon I was asked for my resignation. And then I didn't resign for,

variety of reasons that I've talked about before. But when I think back on it, it was the best job I ever had, the best job I will ever have. And I don't mean to get on a soapbox or on a high horse or anything, but it is a good thing for public servants not to so badly cling to their job, like Rod Rosenstein, who were discussing briefly before we started taping, that you won't do the right thing. Exactly. And I didn't know that that would cause me to be terminated, but I knew it was going to cause some discontent, but it was the right thing to do, not just for me, by the way, Like the other person who was being saved by my refusal to have the conversation was the president himself. Yeah.

Who's the person who looked bad in the tarmac incident? It was not just Loretta Lynch. It was also Bill Clinton. Like, what was he thinking while that investigation over Hillary Clinton was still going on? So good thing I did. I don't regret it for a second. So while you keep saying that, you know, this is the best job you may I have, some people have been saying you might be AG. Should Biden pardon Trump's for his countless crimes if you were age?

I mean, there's a lot of, you've built in a lot of hypotheticals. I know, I know, I know. Nice, nice try. It's really, it's really good. Actually, it wasn't that good to try. It's kind of, it wasn't. It wasn't so subtle. So when you're AG, what do you plan to do it?

Yeah, nice, nice try. At this moment, I believe I'm just the AG of Twitter. Do you think about, though, what it would look? So on your substantive question, I believe there was a debate in the primaries where the candidates were asked, would they consider pardoning Trump? And I think they all said no. Yeah. So I think that question has been answered already. Like there's so much malfeasance.

That's the thing I'm struck by. Do you see a, like, do you see a legal precedent for that? I don't know if I see a legal precedent or a historical precedent. I think there is a lot of feeling that is legitimate that there should be accountability for people. that there should be accountability for people who violated their oath or engaged in misconduct, even if it falls short of being criminal, although there may be criminal conduct as well. There's also a feeling on the part of some folks that, you know, how much do you want to get bogged down in that? Right.

Particularly within the Justice Department. I had my own podcast, and stay tuned. Last week I had people who I know you know, Bob Bauer, former Democratic White House counsel, and Jack Goldsmith, former Republican appointee to the head of the Office of Legal Counsel, who've written a book about what post-Trump reform should look like, on which they agree, with respect to everything but this point. And Jack Goldsmith, who represents a particular point of view, takes the position that, look, we can't get bogged down if there are particular crimes

they should be looked at, but it's going to take the country through a lot of, I think, difficult times. His view is, you know, the country should look forward. Bob Bauer has a different view and representing a large portion of, I think, reasonably thoughtful people that you can't just do that. You know, there has to be some excavation and also some accountability for all sorts of things. I have the way I kind of look at it is I'm not sure there's going to be any choice because I think that at the conclusion, if Trump loses at the conclusion of this administration,

there's all the things we know about, right, the crimes that were laid out in volume two, the Mueller report, things that were relating to impeachment as well. But my guess is there's going to be a cascade of people who will either through books are going to write for a lot of money or just otherwise as good citizens blow the whistle on all sorts of things, whether it's child separation or other matters, that we don't know about yet. I also think that the potential for bad conduct and bad activity during the transition if Trump definitively loses is going to be very high.

And it's going to be very difficult for either Congress or, I think, some prosecution authorities to ignore what could very well be, you know, an avalanche of revelations after January 20th about the conduct of this president and people in this administration. And you're going to have no choice but to address it. So when you were fired, it was unprecedented that 45 of your peers. you were asked for resignations, should that precedent be retaliated against? I know a lot of people don't like the norm breaking of Trump and don't like the idea of Biden doing that, but it seems like there's also been a lot of people installed that are not going to be good actors within the government.

I think it's on a case-by-case basis. People will hear your question and they'll say, hey, wait a minute, wait a minute, wait a minute, Bill Clinton fired all 93 U.S. attorneys when he came in. And it's not exactly true. It is the case that when every president comes in that over some period of time, so there's, natural continuity and ability for offices to continue their work without interruption, you know, with some transition period that virtually all the U.S. attorneys, under any, appointed by any president, leave in the early phase of the next presidency.

I mean, that was true when Obama became president. When I came in in 2009, I was one of the first five to be appointed, there were a whole bunch of Bush holdover U.S. attorneys, and it was everyone's understanding that they would go. They were not asked to all pack up their bags and leave by 5 p.m. that day because there was a freak out about the deep state because Steve Bannon, you know, wants to remake the entire Justice Department in the image of the president and have pliable people in all the important spots. But yeah, it is perfectly appropriate for a president to come in and say, yeah, you know, reasonable transition period. We're going to be, you know, coming up with permanent replacements. By the way, there still has not been, I'm gone three and a half years. There still has not been a Senate confirmed United States attorney in that spot. Yeah. Which has costs. So, you know, my view would be if a new administration comes in, you look at all 93 districts, you move with speech. You move with speech. to have permanent appointees in the Eastern District and Southern District, among other places, where there is not a permanent appointee, or if you think they're doing a good job, you leave them in,

and in places where there is a need for some continuity because some, you know, massive things are being dealt with, you get people a bit more time, and people should, on their own terms, you know, be given some latitude, you know, to leave. If you also, on the other hand, think that people have not been, you know, doing their job independently and of being overly political, if you make an honest assessment of that, then maybe you remove those people right away. But this idea that you come in and you say all 93 pack of your bags, and at the time, you know, in March this was, it was, it was only 45 because people had already started to leave because that's the tradition. To sell everyone to leave by 5 p.m. seems to be a mistake. So one of the things you brought up,

though, was that Trump may have an interest in Bill de Blasio's case with you. Why do you think that case wasn't pursued? Well, another nice try. And you know, we put out a statement. My successor put out a statement a week after I left office as to without a lot of detail. You can only bring cases when you have the facts and the law on your side. We did a careful and thorough investigation. And unlike some other people who have gotten in trouble for this, and as I write about in my book, doing justice, if I may plug it, when you walk away from a case, when you bring a case against somebody, the public has a full and fair opportunity to assess the quality of the case, to assess the quality of the evidence, the fairness of the proceedings, there's a judge, there's a defense lawyer,

there's vigorous, you know, debate and adversarial process with respect to charges that are brought publicly. The ethical conundrum, and this is an actual response to your question, when it's known that you've been doing an investigation of somebody or some entity, but you don't bring charges, what do you do? It's kind of difficult to assess the quality of the decision to walk away. That's true in all things in life, right? If you take a job, you can say, well, this job was a mistake because I've been demoted and I'm not developing my skills. It's very hard to assess the decision not to take a particular job because you didn't take the job. And so it's a counterfactual. It's a counterfactual. So I understand the impulse, and I understand the impulse Jim Comey had with respect to the Hillary Clinton investigation, because you get questions like this. Well, why didn't you pursue that case? And it can be tempting to answer the question. But it works a pretty fundamental unfairness to the person who was never charged for the prosecutor to both, not bring the charge, not have the person have their day in court, but then malign them, you know, with all sorts of evidence that you didn't feel confident enough to talk about in court. So all of the foregoing reasons, I refer you to the statement of this. Southern District of New York. I mean, like my husband loves to say, and I'm married to a very smart

academic, that Trump is going to go to jail. And I'm like, we don't jail our presidents. There's no precedence for that. We don't do that. But I'm just curious to know what you think, like, what are reasonable things that should happen. So, you know, I could go on for a long time about specific reforms. There are various people, the book I mentioned by Jack Goldsmith and Bob Bauer. I work with the Brennan Center and co-chair Task Force with former Republican Governor, Christy Tie Whitman. We put out two reports on various ways we can protect the independence of the Department of Justice, of Inspectors General, expertise, science, strengthen the nepotism laws, figure out ways to rein in or at least have more transparency about the pardon power. So there's a million policy

prescriptions that one could talk about, and I think those are all important. I think what people forget in an element, that's the main theme of my book, you know, policies and regulations and statutes are not sufficient. All these ways in which people like you and I think that President Trump misbehaved, trampled norms. et cetera. Very few laws, regulations, and rules were changed. For the most part, all the things written in those books were true under Obama and were true under Trump. The difference is, and so, yes, you should improve upon them and have more, you know, checks and balances. And Congress should be more vigorous and rigorous also. But the difference was in the Trump administration,

starting with Donald Trump, people didn't care about those rules. You know, we have a Hatch Act. Right. You know, no political activity by certain people in the government. They don't give the damn about that. They're violating the Hatch Act over and over and over again, and there's no enforcement. I often wonder if they were sort of failures, legislative failures after Nixon to kind of, there's so much of this that's written, you know, for a certain kind of genteel president. Do you think it might be time to go back and sort of fix these loopholes? And do you think that could happen? Yeah, I think some of them. I think there should be more protection for inspectors general, for example. There's there's a bill that proposes that most of them, if not all of them, not be able to be fired

except for cause. But the end of the day, on some of these things, you know, democracy has to work. People have to put in, you know, someone who is a good character and believes in ethics. I'll give you an example of something that people ask about. It is pretty much universally understood that if Donald Trump applied, given his background, given his financial dealings and given his history of lawsuits and everything else and, you know, prevarications, if Donald Trump applied for security clearance as an FBI agent or as an assistant U.S. attorney or as someone else at the Justice Department or the National Security Council, you name it. He would never receive it. He would never receive it. And people will ask the question, well, that doesn't seem to make any sense.

So why does he get one now? If no ordinary, no regular person for any one of those, you know, line career jobs would get a security clearance with that guy's baggage. And the answer to the question is, yeah, but he got elected president. And whether you like it or not, whether you agree with his judgment or not, you cannot have it, you can't close that loop. That's, particular loophole such that the sitting commander in chief, however you might disdain him, doesn't have the ability to know all the intelligence that will help to protect the homeland. It also happens to be the case that by definition, the president is a classifying authority. He's the president.

Right. That's just, I use it as a stark example of a kind of thing that is not fixable. There's no rule that I can think of that fixes this problem. If you have a president who's an idiot when it comes to national security and decides in the Oval Office to tell secret information to visiting Russians. What rule is going to prevent that? You have these other checks. You have the 25th Amendment. You have impeachment. Those are very, very difficult. They're blunt instruments that tend to fail. But you cannot micromanage every aspect of how a president conducts himself or herself in office. There are some things you can do. And you can make sure that you strengthen the nepotism laws. And we did that after Robert Kennedy served as attorney general. But you know what? There was an interpretation that was made that if you don't pay and it's not a cabinet official and someone who works in the White House, that there's an argument that that that's a loophole through which you can put Jared Kushner and Ivanka Trump. And so things like that can be changed.

But it is always going to be true. I don't mean to be negative. It is always going to be true no matter what statutes and laws you pass, that a corrupt, bad faith president who somehow rides a wave of popularity to the White House is going to be able to figure out ways to get around it. That's just the nature of the presidency. This was so helpful. Thank you so much for joining. This is amazing.

On that note, we'll wrap up this episode of the new abnormal from The Daily Beast. In future episodes, we'll talking with smart folks from The Daily Beast and beyond from media, culture, politics, and science who will help us understand what's happening to our country and the world. We hope you'll subscribe to us on your favorite podcast app and share the show on social media. We're just getting started and don't want you to miss an episode. If you'd like to follow us on Twitter, I'm Molly JongFest and he's the Rick Wilson. Thanks so much for listening and we'll see you again on the next episode.

Want more great listens? Check out our comedy podcast, The Last Laugh, and our Star-study. the Daily Beast podcast at the DailyBeast.com slash podcasts. If you enjoyed this episode, consider becoming a Daily Beast subscriber. Subscribing is the best way to feed the beast and support all of your podcasts as we cover what might become the darkest timeline. Head to the DailyBeast.com slash membership slash podcast and sign up today.