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“The ‘fake news’ the Donald Trump decried, I think there’s an argument that it sort of saved him.”
On the latest episode of Recode Decode with Kara Swisher, Kara was joined in studio by Preet Bharara, the former US Attorney for the Southern District of New York who was “famously fired” by President Trump in 2017, and now hosts the podcasts Stay Tuned With Preet and Cafe Insider.
Bharara has spent months answering questions about the Mueller report, which landed with less impact than many Democrats critical of the president might have hoped for. On the new podcast, he proposed a thought experiment: What if the public did not know all, or even half, of what special prosecutor Robert Mueller and his team put in the report until the day it came out?
”Imagine you didn’t know about the Trump Tower meeting, even on the collusion conspiracy stuff, and all of a sudden one day there’s this report that lays all this out,” Bharara said. “Holy cow.”
So even though Trump has lambasted reports about his ties with Russia and alleged efforts to obstruct the Russia investigation as “fake news,” Bharara said “there’s an argument that it sort of saved him, because there’s nothing ‘new.’” And yet, if the case were anything other than impeachment charges that must be initiated by Congress, he thinks that wouldn’t have mattered.
“Imagine if, in my office when I was US Attorney, that there had been a drip because somebody had been leaking and someone had been telling the press about stuff, and so every allegation that we’re making about Figure X was kind of known in the press,” he said. “And on the eve of the indictment, I call my team [and] I was like, ‘Guys, it makes no sense to indict this guy, because the public already knows.’ No, of course not. You would indict and you proceed to a court of law.”
Below, we’ve shared a lightly edited full transcript of Kara’s conversation with Preet.
Kara Swisher: Hi, I’m Kara Swisher, editor-at-large of Recode. You may know me as someone who hopes Tim Cook runs for president against Donald Trump, that way we can finally compare apples and oranges. But in my spare time I talk tech and you’re listening to Recode Decode from the Vox Media podcast network. Today in the chair is someone I like very much, Preet Bharara, the former U.S. Attorney for the Southern District of New York. He was fired by President Trump in March of 2017. And since then, has started a very popular podcast called Stay Tuned with Preet. According to his Wikipedia page, he’s one of the people who inspired Paul Giamatti’s character in “Billions,” which is my favorite show. And obviously, you’ve been a big commentator about everything, it’s been good times for Preet in terms of commentating.
Preet Bharara: Not good times for the country.
Not very good time for this country. You’re also-
I would rather have a better country and less opportunity to speak.
Absolutely. You’ve done a lot of stuff, you’re also an excellent tweeter and if that weren’t enough, you’re the author of a recent book called, Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment and the Rule of Law.
Good to be here.
That’s a big title.
Yes, it fit though on the cover.
It did, all right.
The book’s big enough that it fit.
Yes, what would you else have called it, Oh Shit? Or something like that.
Knopf, my publisher is old-school.
Knopf is an old-school publisher and they don’t like expletives.
All right, okay. Let’s have a tiny bit of your history. You had a job before all this, like a real job.
Yeah, I had a few real jobs.
Job, job-type job, as they say.
I graduated from law school, I worked in a firm, then I became a federal prosecutor in the very now, even more famous than it was before, Southern District of New York, SDNY, which is known everywhere-
Why did you do that? You obviously could have gone to law firms, what was the-
I did, I was in law firms, because I thought at some point in law school that the best job you can have a lawyer, not only to practice your craft and learn how to do it and also that would be a lot fun, it would be interesting but also be the best kind of public service to me was to be a prosecutor. And the best office that’d I ever heard of for government service as a lawyer was the U.S. Attorney’s office for the Southern District of New York. That has a historic history-
… dates back to the founding of the Republic. Has done all sorts of important cases in terrorism, public corruption, you name it they … Cyber now, you name it, they do it. I like the idea as a lawyer of being someone whose only job it is as I say in the book, repeatedly, the mantra was, we weren’t always perfect but the mission was to do the right thing in the right way for the right reasons and only that. There’s a reason why folks don’t love lawyers and in part, lawyers make the best argument, they’re required to make the best argument on behalf of their client, even if it’s B.S., often.
So long it’s a colorable argument, they make it, it obviously on behalf of their client. Whether you represent a company like Facebook, you represent an individual who’s guilty of crime, and that’s all good and well and noble because that’s what’s required. I prefer to be in a place where your client is not a company or an individual but is the public.
And you’re accountable not to any particular individual, not also to any political official like the President of the United States, your loyalty is not due and owing to anyone who’s named, who’s elected to office, but rather to the constitution, to the public. So the ideal is in a place like that, you’re never supposed to make an argument that you don’t believe in. You’re never supposed to pursue a case that you don’t think is right and just.
Mm-hmm. And so you decided to do this and rose to the top. Rose to the very top, I’m going to move your career along very quickly.
But there’s many famous previous people in that job who have run that office. When you came to it, what was your … what were you thinking at the time should have been your focus? You did a lot of financial crimes, you did all kinds of things.
So you inherit the institution. The only person who really changes is the person at the top of the U.S. Attorney’s Office and that’s relevant to people thinking, “Oh, what’s going to happen with the Michael Cohen investigation?” Nothing really changes, the political appointee at the top changes. So we were focusing on the things that were already in progress. I think there were a couple of areas that we emphasize more once I got there because the threat levels are different. One of those is cyber, people weren’t really talking a lot about cyber in 2009.
Not at all, right.
You would never hear a cabinet secretary talking about cyber, you would never hear a president talking about cyber. And beginning, sort of the middle of the 2000s, and certainly when I got there in 2009, I think we increased tenfold our resources and commitment to cyber. The FBI did the same thing. The FBI used to have a lot of squads focused on La Cosa Nostra, classic Italian mafia, one for each family.
As did the Southern District of New York.
Yeah. They’re still there and they’re still a problem and as I used to say at news conferences, they still use baseball bats and extort people and terrorize other folks. But they’re less of a threat than were in the ‘80s and ‘90s. And what’s a bigger threat is all the cyber, all the hacking. Including from ideological groups who want to hack for other reasons.
And also nation states, you had the Sony hack, which I’m sure you’ve talked about, which was a big deal. And you also have hacks by Chinese nationals in a great case that was brought by the Pittsburgh U.S. Attorney’s office. We did a case against five Iranian nationals, who tried to affect our infrastructure. You have all sorts of folks who are doing DDOS attacks against our financial infrastructure.
Were you equipped to do that, your office, how did you bring it up to speed to do this?
I think lots of folks have been behind, the folks that are the most behind and I know you’ve talked about this and you and I talked about this on my podcast, lawmakers.
You have to understand technology. I think we started to get better at it and the FBI and the Secret Service, who are the principal law enforcement agencies that deal with the cyber threat, got much better. They started hiring younger people, who are a little bit more schooled in technology. And tried to stay a step ahead of the hackers. And you couldn’t do that sort of old school, lawyers and FBI agents, who didn’t understand tech. I think it’s taken some time but I think now you have a lot of great experts who have been hired away from private industry and who have come up through the ranks and actually live life as private citizens, knowing a lot more about how computers work. You don’t see that when people testify in Congress, in the House or in the Senate. You have various people including, I don’t mean to veer into a criticism of our lawmakers but-
But please do.
Why not? Lindsey Graham in some ways-
… is both a Luddite and ahead of his time. Didn’t he once say, “I’ve never sent an email?”
Yeah, he did.
Which makes him seem like … How on Earth can you then be responsible for legislating these things especially as the Chairman of the Judiciary Committee? On the other hand, he’s kind of ahead of his time because he doesn’t have sort of scandalous email hacks he has to worry about.
Right, maybe other scandalous things, but who knows, who’s to say? What’s interesting when you focus on that, it’s harder to get the public interested in that, too. Because you’ve got, you did cases that got most attention were those mafia cases or-
Yeah and financial fraud cases.
Financial fraud cases.
Well, the interesting thing about cyber, that everyone should be worried about, both because they hack things that affect our election, which everyone is focused on and thinking about. And then you have groups like Anonymous, the hacktivists. But people’s personal data’s being stolen. What’s weird about that is, we wouldn’t go a month or two without hearing about a huge data breach. Whether it’s a shoe store or a retail marketer or whatever the case may be and you would hear millions of people’s data was now lost or-
… swiped. And a lot of people had to deal with the damage of identity theft and reestablishing their credit and all sorts of things. But it still didn’t cause that much of a panic attack on the part of the public because they wouldn’t necessarily all see a direct effect on their credit score or a direct effect on their bank account, which I think is dangerous. Lots of people have said, this is not my phrase, that the cyber threat is like a ticking time bomb. And that we are not there yet, but we could see a version of a cyber Pearl Harbor, where then all of a sudden people will wake up and say we’ve got to do something about this.
Right, even the Mueller report which sort of lays out the Russians efforts at doing it using social media and other means. And I think people are still sort of, “Okay.”
Right, well people don’t do simple things.
Like, have good passwords.
Right, exactly. That’s another issue.
Yeah, I mean, so some stuff is very complicated. You talk about tech and you break it down in very good way that people can understand. But like anything else, sometimes the best improvements are simple things. I used to analogize to medicine. And it’s amazing the technology we have and you can get endoscopies and people can put cameras inside your body. But one of the greatest advancements in all of medicine was when doctors realized they should wash their hands.
Right, fair point.
And it is also true that there’s all sorts of technology that you … we’re surrounded by all these Wall Street firms and financial institutions, who spend millions and billions of dollars a year on firewalls to protect themselves. But you know what, all it takes is one stupid employee who has a bad password.
Well, yeah. Whose response to the phishing request…
That’s a weak link. There was a famous case where law enforcement was literally, in multiple countries, was trying to deal with a cyber threat issue. And they had a secure conference call and it turns out one of the bad guys, one of the hacker types, eavesdropped on the conference call.
You think, well how can they do that? These are the most elite anti-cyber folks in the world. You know what it was? One agent in one country, forwarded the caller number to his personal email for convenience.
And it was that email that was hacked, not the secure email in the agency but people can let the bad guys in very easily.
Right, absolutely. So you were doing your job, you were doing all kinds of big cases. You did Stephen Cohen, right?
Well, SAC Capital.
SAC Capital. I’m sorry, I just remember it by the people. But you were doing your job and then President Trump gets elected and you initially thought-
I had nothing to do with that, by the way.
Nothing to do with that, I know you didn’t, but you initially thought you were staying and then you were not staying.
Yeah, it was kind of back and forth rollercoaster. So when a new president comes in, especially one of the other parties-
Everybody gets appointed-
Yeah, you leave in an orderly way, that’s what happened when Obama became the president. When Clinton, when Bush. So I started making plans to take a fancy vacation and finally go to the private sector I guess after 17 years in public service. And then Trump, long story, contacted Senator Schumer, for whom I worked for a period of time, [and he] said, “I think Preet’s great.” Asked me to meet with him for the purposes of asking me to stay on, which was highly unusual on November 30th of 2016. And shook my hand in a meeting in that famous office on the 26th floor of Trump Tower. So I agreed to stay, because I understood the job to be an independent one and you don’t give your loyalty to any particular person, even though I had not voted for Donald Trump and was not a supporter of Donald Trump.
And then, he called me a couple of times, which is very strange and I’ve recited this on a number of other occasions. Why is he calling the local United States Attorney who has jurisdiction over businesses, the foundation, all sorts of other things, when there are calls to investigate various things? And then he called me once on March 9th of 2017-
I love how you lawyers keep notes. What is with these lawyers that keep notes? Anyway, sorry.
Real lawyers do keep notes.
I heard that from Don McGahn.
I’m taking notes right now.
Actually I’m not because I understand there’s recording equipment.
This is being documented for the future. So he called, I couldn’t come up with a reason why it would be a good idea to call him back. It seems odd, a boss calls you, you think you’ll call him back. But there were all sorts of issues swirling around with him. I thought it would look strange if it came out later. That we’d had this side conversation, there was still swirling controversy that he stoked, Trump stoked, about this meeting on a tarmac with Loretta Lynch when she was the Attorney General, with the former president who had appointed her. And he claimed well that wasn’t a courtesy meeting, they must have been talking about cases and enforcement matters. So no good can come of-
A courtesy meeting.
This call, so I didn’t return the call until I made clear that if I know what’s it about, and if it’s with the Attorney General, the Attorney General wasn’t involved on the call, maybe we could have the conversation. 22 hours later, I was asked to resign.
Mm-hmm. So you pissed him off?
I guess. Look-
That’s my guess.
I’m a studious lawyer, so I don’t necessarily conclude that one thing leads to another because 45 other people were also asked to leave who were appointed by Obama, a little bit prematurely, although it happens in the ordinary course over time. But it’s hard to believe that those things are not connected.
All right, so here you are, finding yourself fired, famously fired.
Not just fired, but famously fired, by the President.
Yeah and pretty good company over time.
Yeah, yeah, lots of people. We’ll get to that, we’ll get to that. And what did you decide to do, you moved really quickly into a sort of a digital realm.
I had opportunities, everyone who has had my job before, even those who decide to run for office eventually, including Rudy Giuliani and Bob Morgenthal, who ran for governor after he had my job. They’ve all gone into private practice. And there’s a lot of money in private practice. I was not so interested. I also, I think, had the opportunity to have some platform from which I could about things. I thought I’d write this book, Doing Justice. And while I’m writing the book and while I’m thinking about what I want to do in a way that I don’t have to keep my mouth shut, that law firms seem to prefer. Often they want their people to keep their mouth shut.
Yeah, hush, hush, Preet.
Yeah, look, it’s a very difficult thing to be a partner in a law firm and if the mood strikes you to criticize the Attorney General or the Justice Department, that’s not good practice.
No, not good business.
Lawyers sometimes did that when I was-
Hence why I do not work for big newspapers.
It’s a little bit of a problem. I like talking about things that I care about and I like talking in a fairly candid way. My brother has this media company. It seemed at the time an interesting thing to do a podcast. I now believe that there’s a law that-
Everybody has a podcast.
That you must have a podcast, everyone must have a podcast. Maybe even two podcasts.
I have two, you don’t have two? Oh.
I do, I have Cafe Insider.
Oh, I didn’t-
Which is a subscription podcast.
All right, okay.
Everyone should subscribe to.
Oh, you’re on the … what are you on?
We’re on our own.
On your own, okay.
What’s the difference between Stay Tuned with Preet and Cafe Insider?
So Stay Tuned with Preet is at the top of the show-
I answer listeners questions about the Mueller investigation and law and sort of other things. Then I do an interview and sort of close it out with something interesting that has touched me. On the Cafe Insider, every Monday, it’s just two people, me and Anne Milgram, who’s a former Attorney General from New Jersey. And we just talk about all the crazy stuff-
Right, it’s like me and Scott going on about tech and media.
Yes, yes, exactly. It’s literally that. We have a good time, we have a sense of humor.
It’s a — law it up. It’s law with drinking.
And it also seemed, it’s not enough to do something one time a week. So I tape for the Thursday podcast, Stay Tuned and we tape off and on, on Tuesday, sometimes I tape the top of the show on Wednesday at 11:00 AM. By Wednesday at 6:00 PM-
Right you have more.
There’s a whole bunch of news and by the time Thursday comes out, all sorts of things happen. So this is an opportunity to have a big chunk of time on Thursday, a big chunk of time on Monday. Who knows, maybe we got to go 24/7.
What do you think, Kara?
I do, people are always urging us to make … I’m like, “What do you have the time?” We keep them short because we want to have chunks of news but you’re right, we’ve done a lot of hot takes that have done better than an actual shows because there’s so much news. So you moved into podcasting, you are also the author, I want to get to your book in a second, and you also moved very heavily in commentary on Twitter especially. You’re quite the Twitter star.
What’s very funny about that you mention, so last night-
I sent a bunch of tweets where I was kind of down on the Twitter.
I think I said 11:00 PM last night, I’ve been a little bit less on Twitter in the last few days-
Mm-hmm, it goes up and down.
Yeah, and we talked about this a little bit, I don’t know how you feel but you have a great Twitter feed. So I’m a little tired of Twitter.
Yeah, yeah, I know what you mean. Except I did a podcast with Sam Harris and that … everyone either hates him or loves him. And so I was like …
I was on his show, too.
All it was, was “Kara sucks” on all sides. So whatever.
So that’s one reason, right?
Kara does suck, for all of you Kara does suck. I admit it. Stop tagging me.
I think, and we’re going to get in trouble for saying it, but I think you’re wonderful and terrific.
No, go ahead.
And an American treasure.
Thank you, thank you so much.
Did I read that OK?
Don’t say that now because the Sam Harris people who hate him and love him will attack you then, don’t worry.
You got to talk to interesting people.
They all had good points.
There’s one category of reason not to like Twitter and that’s like toxicity and people who say terrible things. If they don’t like your beard, then they make you feel bad about yourself. But then the other reason, more substantive I think and what I was thinking about last night, is if something happens in the world. Someone makes a statement or there’s a video that gets released and once you become sort of part of the Twitterati, of which you are a member.
And in your area, like law or politics or whatever the case may be, you kind of feel like an urge to say something about it. And say something clever and witty about it. I do that, I have a million followers, right.
Yeah, you’re quite good.
I’m okay at it. But then-
You’re not George Conway level.
He’s pretty good.
He’s got a special platform.
You know I have a weird man crush on someone I agree with on almost nothing. But go ahead.
I’m not sure someone else has a crush on him.
Yeah, that’s a fair point. Not our business.
You kind of get it wrong and every once in awhile there’s a criticism or a discussion of something that’s very complicated, whether it’s about Bill Barr or it’s about the Mueller report or it’s about some case that I handled.
And you kind of can’t do it in 280 characters.
No, you can’t.
And I’m lucky enough like you are, I get to talk about it on my podcast. And I get an hour, I can say whatever the hell I want. I’m a senior legal analyst on CNN. And then I have this long book that barely mentions Trump and it’s no hot takes at all, it’s all-
Hot takes, I don’t love all the hot takes. And it’s like a competition to have the best hot take. And I know it sounds like somebody who’s complaining about a sport that they’re fairly decent at but every once in awhile, you think, you know what, I just want to take a little step back.
Or that you’re not contributing to anything but the speed, right?
Yeah, I think so. I actually find, something that I do a little more of now, I follow a lot of people-
Don’t tell me Instagram pictures of your dinner, Preet-
No, no, no.
Because I can’t take it.
My parents are going to listen to this show and now they’re going to follow my Instagram and monitor my stuff, thanks.
I don’t use Instagram.
Thanks, Kara Swisher.
It’s a waste of time.
That’s since I started posting those things.
That’s a joke. Other people will find interesting articles. Or I mean, not just cat and dog videos but interesting things. And you know what, I will just retweet them. Or say, “Take a look at this.” Or someone yesterday posted a video of Obama reacting emotionally after a school shooting, I’d forgotten about that, hadn’t seen it in a long time. I think Joe Lockhart tweeted that. And retweeted it, “take a look at this.” So in some ways, you can be kind of a curator of stuff. And I don’t always feel the need, I now have to retweet someone else’s interesting thing and be more interesting on top of it to justify why you’re following my twitter feed. So there’s a little bit of that.
Right, I think it does get tire- I think you go up and down. I think you go up and down, it’s weird-
Well, something crazy happened. There had been days when Bill Barr was testifying, I think I tweeted a lot. There’s were times that a year ago … the one time my father sort of called me out, Devin Nunes did whatever crazy thing-
Devin Nunes does, could be any day of the week … That’s okay, go ahead.
Whatever crazy shit he was doing like a year ago. I sort of lost my mind, I think I sent 20 tweets.
Each angrier than … I was just so angry at what he was doing to that committee. My dad was like, “You need to calm down.” When your dad tells you … When you’re 50 and your dad tell you you need to calm down then you lay off the-
But your dad was monitoring-
The keys for like a day, oh yeah.
But it does, it creates a situation where you feel like you have to come. Like today, Chris Hughes, one of the founders … I think I put up three tweets right away. But I know him, I know them, I know what’s going on.
You took a deep breath before you tweet anything?
I’m very calculated. I’m a professional tweeter, Preet, I think you are too.
I see, low resting pulse.
I’ve done one stupid one but mostly yeah. Mostly I think very carefully about what I’m going to say. And I know when I can create outrage, you know what I mean? I’m aware of certain things that will create-
Do you know how to spell Kentucky?
Better than most people. It’s a difficult word, it has an N and a T in it.
Well, it’s the C sound, why do you need a C and a K. You think you could just have one of them. I don’t know.
Anyway, see, you could have tweeted that. So you use that in a certain way but you don’t find it to be sort of this substantive of it, that you’re worried about that.
Yeah, I’d be unhappy.
Because everything now in politics are a tweet, I mean, including the President.
Yeah. So I’d be unhappy if the only place I could speak was Twitter.
Mm-hmm. But it is where everybody speaks, including lawyers.
Yeah, well because you get to learn a little bit. Look, and you get a consensus that develops. The podcast has been very successful, the book has done very well and I think in part, I don’t think that would have been true necessarily 10 years ago. I think people really, really … in the same way that they’re more interested in tech than they’ve ever been before and why you’re so popular and successful, separate from your genius and American treasure status-
You’re about to convict me the minute you get back in office. I’m going to be subpoenaed.
I’m just buttering you up.
I will show up for a subpoena by the way, but go ahead.
I’m sure you will, or you’re going to be held in contempt.
But there’s this newfound interest in the law on the part of thoughtful people in the country who just want to understand among other things, how the hell is it supposed to work? And then second related to that, how far have we fallen from how it’s supposed to work?
So everyone is viewing the legal system through this weird distorted lens of Bob Mueller and Paul Manafort and Michael Cohen. Everybody’s getting this sort of master class-
And Bill Barr.
Yeah and Bill Barr. This master class in flipping. And there’s this time for a few months, like “What does it mean to flip, how do you flip a witness, what if he’s a liar? What if he’s a bad guy?” And prosecutors around the country sort of smile, this is how we’ve done this, forever.
Right, and we’re learning about contempt.
Now we’re learning about contempt. So, Twitter is a place where some folks are getting a large following, including George Conway and others, for on occasion being snide, like I am from time to time, because you just sort of pop off on Twitter, and it’s a clever format, but also in a serious way. I turn on the television, there’s a joke going around in sort of Southern District alumni circles-
Oh, you all joke with each other?
Well, I just feel like every time I turn on the TV, there’s somebody who used to work for me.
In your Facebook group? Yeah, yeah, yeah.
There’s, I think, a hunger generally, but in the law in particular, not just for people who are smart and can talk about this stuff, but people who have actually done it.
So, there are really smart journalists who didn’t practice criminal law-
Right. No, I know what you mean. Yeah.
… but they want to hear from the people who actually tried cases, and so I’ve never seen more federal prosecutors on TV.
Like Judge Judy.
Talk a little bit about what you were trying to get through in this book.
Yeah. So, I had this thought about writing a book when I was in office, and then when I got fired, I had a little bit more time, and as I was starting to think about the stories and talking to people about what I might write about, I realized that the stories that I had in mind to tell and the cases that I’d overseen, they were not just relevant to lawyers, and certainly not just relevant to criminal lawyers. They’re about fundamental things, like what truth is, like what fairness is, how to avoid bias, how to make decisions, how to engage in moral reasoning. So, I thought I would write this sort of general book with no legal jargon where I would sort of discuss difficult quandaries that people find themselves in, whether you work in a school, or you work in tech, or you work in media, or you’re a stay-at-home parent dealing with how you raise your kids, to figure out just what the right thing to do is. I mean, that’s sort of the mantra, as I said, in my old office.
So, I decided to go sort of from beginning to end. The arc of any case, you begin with an investigation, an inquiry, then you have to figure out whether or not you accuse someone. Then you got to figure out how to make the judgment. Is it true? Is it not? Is someone guilty? Are they not? Should they be disciplined? Should they not? And then on to punishment, and those are things that everyone has to deal with. I have a chapter on judges, which is not just for people who ever appear in front of judges. But I’m saying if you’ve ever engaged in competition, if you ever played a sport, you have been judged, either referees and umps, or you have judged others.
So, I think there’s a lot there for people to sort of figure out. I don’t talk about Trump a lot directly, but like everything else in the world, Trump’s shadow looms over all things. Somebody at The Guardian, I think, when they reviewed the book, called it, even though I don’t refer to Trump directly a lot, a sort of “metaphorical survivor’s guide to the Trump era,” and I guess it’s a little bit that, because it goes back to basic things, as I said, and I think if people-
Well, talk about some of those basic things. When you’re saying thoughts on crime and punishment, what do think has changed, besides some lawlessness by the top officials?
So, a central theme of the book, unlike, I think, what some other lawyers have written about, and smart people and academics and others have written about, they’re always talking about how do we change the law, and what new law should we pass, and what new tool should we give criminal law enforcement, or what new right should we decide people have, and that’s all well and good. Now, there’s a lot of reform that needs to happen, and a lot of things that need to change. The death penalty is a problematic thing. Cash bail is a problematic thing. But you know what gets missing, I think, in that discussion, is how important it is not only to believe the bedrock principle, that we’re a nation of laws, not men, but also appreciate that it’s people who enforce the law, that it’s people who interpret the law, like anything else.
You can have a great curriculum in school, but the teachers aren’t good and have the fates of the students close to their heart. If they’re not acting in good faith, you can have a terrible school, and the same is true for a legal system. It is of essential importance that the people who are responsible, the Justice Department, the DA’s offices, defense lawyers, judges, everyone and the process in any institution has to understand that their job is to do the right thing, and so a lot of this is about that.
When people complain about the rule of law, and they complain about what’s happening to the country and the reason they’re all flocking to television and watching these former prosecutors and listening to podcasts, nothing has changed. As far as I can recall, the Constitution is the same. Virtually, all the laws are the same. The regulations are the same. The OLC memos are the same. What has changed? What’s changed is some of the people who are in charge of those things, and when you get a degradation in the quality of the people who don’t have as much respect for those principles and those norms-
Or just ignoring them.
… or just ignoring them, miscarriage of justice happen. So, that’s what I think has changed, and I think the way to get back to first principles is to make sure you understand what they are.
Mm-hmm. So, talk about them.
So, these days, I think there’s a lot of people unsettled because you have things like and phrases like “alternative facts,” “truth isn’t truth,” which the lawyer, not just any lawyer, but the lawyer of the President of the United States, has said truth isn’t truth, and expects-
Did you hear yesterday’s, Chris Christie?
I don’t think so.
“Opinion are not lies.” Opinions are not lies, and then I was like, well, are lies opinions, or is a lie just a lie? I can’t figure that one out. It was an astonishing thing.
I literally nearly rushed the stage. I was like, stop. You need to stop.
I would’ve enjoyed that. Then you could’ve tweeted about it.
Well, I thought about it. I thought, what would be the cost to me to rush the stage and just give him a slap, a little light tap, saying, “Stop it”?
I’m not going to condone… Is that violence?
I know that. No, no, just maybe a finger in the face, like, “You need to stop, sir.”
But it’d be fine, because you’d say, “Look. Violence is not violence,” and you’d get-
Right, violence is not violence.
Violence is not violence.
Violence is an opinion. It’s an opinion.
Yeah. I think they are two-
No, it’s not. Nobody should hit each other.
I think there are two things-
I’m talking about a firm pointing of the finger.
May the record reflect that you’re pointing the finger at me.
Yeah, yeah. Yes, exactly.
I didn’t do anything wrong, I don’t think.
No, no. All right. So, go ahead. Sorry. Go ahead.
So, I think there are two big problems in the country, and this didn’t start with Trump. I think it’s been happening for a long time. I agree with people who say Trump is a symptom, not a cause.
I’d go back to Gingrich, but go ahead.
Yeah. I think that’s not a bad place to go back to.
There was a lot of “let’s change things just by not doing them,” kind of stuff.
Yeah. So, two things. Reasonable people can differ on a lot of things. There should be debate. You have a back-and-forth with people all the time. I do, also. But the one way that people don’t do it right is they decide to absent themselves from discussion and debate, and this is a thing that I know you talk about a lot. You can be on social media. We have so many channels now. You can just listen to people who are going to reinforce your point of view, never challenge your point of view. If someone disagrees with you, they’re a libtard, and vice versa, and you don’t listen to them, and you never refine your arguments, and you live in your little bubble.
Then the second happens when people do come out of their bubble, and they seek to have some engagement with people who disagree with them. They lie about them, they yell at them, they engage in character assassination, they talk about their appearance, and all sorts of other things that have nothing to do with the merits of the argument. So, when I say go back to first principles, people don’t like lawyers for a lot of good reasons. One thing I think we can celebrate, and I talk about it in the book for society generally, is a lawyer in court, particularly a criminal lawyer in court, on either side, imagine if you just sort of put your hands over your ears, and you said, “I’m going to make my arguments, and I know I’m right. The guy’s innocent, or the guy’s guilty, and when the other guy talks, I’m not going to listen, and I’m going to just sort of sing to myself with my hands over my ears, and not engage in the argument.” You’re actually obligated by professional ethics, and also to do your job-
… to listen, and then when you do engage, and you get up before the jury and make your counterargument, you can’t call them names. You can’t talk about their weight, and you can’t get in court in an ordinary case and say, “Well, all Mexicans are rapists, so need to convict this guy because he’s a rapist” — and this is the kind of rhetoric that the president uses. So, there’s a model there. I’m not saying everyone should talk like a lawyer, because you shouldn’t, but there’s a model there for how-
Decorum, and also relevance. You see these people, you see them argue past each other. I call them clowns. You have these clowns, many of whom are associated with the president, and they include people like Michael Cohen, who I know he’s pleaded guilty, but he’s a thuggish clown in his past life. Paul Manafort, another one. Roger Stone, another one. I’ll even add Alex Jones to that list, and they get away with, in public debate, I’m sure not on a podcast, but generally on cable television and other places, lying, cheating about the facts, engaging in conspiracy theories, totally not evidence-based, and they can talk around an anchor for like seven minutes. You see those guys end up in a court of law or in a deposition-
Yeah, they end up in jail.
Yeah. They change their tune. Roger Stone had to plead and beg and apologize to a federal district court judge who could take his freedom away.
For pulling all his antics. Yeah.
Yeah, for pulling all his antics. He had Michael Cohen, hangdog-faced, testifying in front of Congress now because now this stuff is real. Right? Paul Manafort, same thing. So, you can’t impose the court of law on the entire country, but there’s something to be said for figuring out ways to disagree with people in a way that sheds more light than heat.
Well, that’s because there’s no immunity from it. We’re going to talk about that, where tech companies are going and what they should have, but one of the arguments going on right now around tech companies is they have so much immunity because of laws that were in place, and therefore, they behave as if they had immunity, and when there’s no consequence for what you do, you do things. You can’t… Not good people, but good people can do bad… They can-
Yeah. Well, look. It’s like a lot of things. There’s a parallel between what’s going on in the tech industry a little bit and what’s going on in the White House, and people are learning that a lot of stuff that happens is based on the honor code. Right?
Right. Yes, the honor code. Yeah.
You don’t do certain things.
That’s a thing.
You don’t do certain things because you don’t do them, and norms get established, and traditions get… Sometimes they need to be upended. When people talk about the president and say, “That’s unprecedented,” or as he said, “unpresidented,” I don’t know that that’s a pejorative, but Barack Obama was an unprecedented presidency. That’s good. That’s good. The question is whether or not you’re overturning some norm that you shouldn’t be overturning. So, there are these norms that people are blowing through, and it causes people to think, “well, maybe we should have some laws to dictate what kind of behavior is okay or not.”
Or these norms, nobody knew you could break through them, and now you can.
Well, some people didn’t know that they were happening because of — norms were happening because of laws. So, this idea that the President of the United States, people are now discovering, he himself can say, “Yeah, I know that you have a lot of problems, but you can get a security clearance because I can overrule everyone else, because I’m the president.” I, as the president, even though in ordinary life, if I was a rookie federal prosecutor, I would never… Donald Trump would never get a security clearance, for any purpose. The only way he could get a security clearance was to get elected President of the United States of America, maybe a senator, I think. The same thing applies to them.
He didn’t have to divest. There’s all sorts… We passed a law after Bobby Kennedy, who I think was a great attorney general, but it was not cool for a president to have his brother as the attorney general. We passed anti-nepotism laws, which were written in a way that had a loophole, through which Donald Trump can now have his daughter and his son-in-law working in the White House. Maybe we’ll have to reexamine that, too, because nobody thought between Bobby Kennedy-
That someone would do that.
… that someone would do that, and I guess, and you know this better than I do, there’s all sorts of stuff on the tech side, too, that people are just sort of engaging and kind of… because there’s not a specific law that says you can’t do it.
Right. So, when this happens, when people blow through norms that have laws behind them, some of which do, some of which don’t, one of the things, for example, this week was not meeting demands from Congress and being held in contempt of Congress. I think the calculation, just like it would be if I’m not paying my bill, say if you’re Donald Trump, is court will mess it up for a while. Let’s put it in court for a while, and let’s just-
Yeah, there’s a clock issue.
You know what I mean?
Let’s just keep it going, and we’ll just run out the clock, essentially.
I think absolutely, and this is not directly to your point, but I think an important one that’s parallel to this, all these things take time, and so the biggest criticism that Mueller has gotten, and I don’t really still understand it, was he didn’t make a decision on obstruction, volume two of the Mueller Report. Right?
But the other thing of a lesser nature, but relates to this, that he’s been criticized for is not compelling the president to come speak to him, not issuing a subpoena, and fighting it out to get actual live testimony with the possibility of follow-up questions to understand what was in the mind of the president when he was engaged in those-
Which was critical to obstruction.
Yes, and I predicted at the time correctly, I had a lot of other predictions that were wrong, but Bob Mueller explains in the report that one of the reasons they didn’t seek to compel the testimony was time, and Bob Mueller must have thought, and this bears on this other thing that we’re talking about, but on the other side, Bob Mueller must have thought, people are not going to tolerate an investigation that goes on forever. They’re certainly not going to tolerate an investigation and no report going until the eve of the election, or even after the 2020 election.
If I go down this road of fighting about the subpoena, I can’t abandon that fight midstream, and so nothing else can happen until that is resolved, and that could take a year, it could take a year-and-a-half. People are now putting out explainers about the contempt process, and there are various investigations that they’re talking about from the past, including Fast and Furious, which wrapped up Eric Holder and some other people. Some of those things didn’t get resolved for four years until the next administration was in office.
So, now on the other side of the coin, going to your question, yeah, the Trump people are like, “We just have to get to 2020,” and maybe it’s a good campaign issue, even if it comes to a head in the summer of 2020, but depending on how the courts operate, and depending on how many roadblocks they throw up, it could take a long, long time. So, I understand everyone up in arms about the constitutional crisis, and I’ve sort of been through this. I worked in the Senate, and I worked at law firms, and I’ve worked as a prosecutor, and whether you like the invocations of privilege or not, I think some of them are totally bogus and ridiculous, they can go to court.
Right, right. It’s his tool. Right. Yeah. It’s his tool.
They’re not any more ridiculous, and people don’t like me saying this, and I know I shouldn’t compare this kind of thing to the mundane, every day, total horseshit civil litigations that take place in courtrooms and in courthouse throughout the country every day. They have arguments to make. Some of them are strong, some of them are weak. Same is true for the other side. I think that the house Democrats have the much, much stronger argument on all of these things, but the president’s arguments, there is such a thing as executive privilege, and you can drag it out for as long as you want.
Right, delay, delay, delay.
Delay, delay, delay. It’s sort of like the tax returns.
That’s a totally different thing. The statute, as I see it, and I agree that people say it’s very clear, that a particular house chairman-
Has the ability.
… has the ability to get the tax return, but you know what? You make some arguments, and maybe someone will entertain them, and if you lose, this is the way the system works. The system is intended to be slow to some extent, and people think everything should be fast. I talk about this in the book. When something bad happens, people want the investigation. They want it to happen immediately. Yeah, that’s good if it can happen, but there’s a downside to speed also. Miscarriages of justice happen when you go too fast, and we give people right to appeal for a reason.
Well, you didn’t know someone was going to take advantage of that. You didn’t imagine the president was going to take advantage of it.
Well, although he’s maybe the most litigious person ever to walk into that Oval Office.
Right, and he likes it, and likes it, and enjoys to those kinds-
Well, the funny… You got to remember, when we analyze this litigation position that we’re talking about right now, I don’t know that he’s ever won a suit. I think maybe he’s won a couple. He doesn’t care about the winning of the lawsuit. He cares about the fine-
The time, yeah.
… and the time. There’s this book, not to plug someone else’s book, so read it after you read my book, David McCraw, the deputy general counsel of The New York Times, who had to deal with all these issues. Over, and over, and over again, think about how many times Donald Trump, and this is a good thing, I guess, has threatened to sue someone or threatened to change something, and most of the time he doesn’t do it.
Mm-hmm. Or he doesn’t sue, or he doesn’t win.
Yeah. Well, he almost never wins, almost never wins. He may not win here. It sort of doesn’t matter-
… because showing that you have the power to fight, and having your attack dogs come on television, like Rudy Giuliani and others, that’s all part of the game. That’s all part of the… Now he’s an actual politician as opposed to a faux politician who was just looking for good press, and to maintain and increase his brand. Now he’s trying to maintain and increase his power as the President of the United States, and maybe leverage that into another term as president. So, all this is great spectacle. He gets to engage in the rhetoric of victimhood. He gets to have his folks go on television and misstate the law often, misstate the facts often, but it’s good political theater for him, and at the end of the day, he can always resort to saying, “Corrupt judge, corrupt process, hoax.”
Right. They were doing that yesterday about the Don Jr. subpoena, saying that-
Yeah. There’s always a way to undermine.
… the Republicans have been corrupted by the Democrats.
Yeah. There’s always-
I was like, what? Huh?
You cannot win-
But you’re always reacting to him.
You cannot win an argument. I’ve lost track because there have been so many incidents of hate crime, and you had this person, I think, who was engaging in all this violence, and the speculation, well, is he a right-winger, or is he not, and then they find him. Remember the guy I’m talking about? They found his-
… van, and it was covered with all sorts of right-wing propaganda. Right?
Oh, the guy who was the bomber, the bomb. Yeah. See, this is the problem. We can’t remember all their names. There’s so many.
I mean, you kind of don’t want to remember their names, but you want to remember their acts, and you think, okay, well, there’s overabundant proof that he was from this side of the ideological spectrum, and he’s spewing this kind of white supremacist nonsense, and then you have people like Rush Limbaugh, the next day, after having said all this crap predicting who this guy was, he’s clearly going to be a left-wing person, saying, “Well, you know what? Maybe those decals were put there by someone else. It seems odd.”
Yeah, like they have to switch the story. They switch the story.
They switch the story. So, it’s actually like punching the ocean. You can’t actually win.
So, how does that… As a lawyer, here you are. You’ve been a prosecutor doing justice. How do you deal with that as a lawyer? I’m sure you’ve had that happen.
Well, as a lawyer-
You had the guy in the bathrobe who was the mobster. It’s not-
Yeah. So, that’s the exact difference that I was talking about earlier with the clowns. In a court of law, that doesn’t fly because you have a judge who’s going to say, “Okay, Mr. Limbaugh, that’s nonsense. Move on to your next argument,” and you have a decision maker. Right?
That’s why all this stuff doesn’t work in court, because-
Well, until you infect the courts, but go ahead.
Until you infect the courts. Yeah, I guess that’s true, but character assassination and lies and total irrelevancies, they don’t work in court, and there’s a decision-maker at the end of the day. Look, I’ve often thought to myself that some of these things that people have said on behalf of Donald Trump, yeah, I’ve heard defense lawyers make them for years.
That’s what I’m assuming, yeah.
Right? Donald Trump, people say on behalf of Donald Trump, “Well, I didn’t have to have someone else fire Bob Mueller because I had the ability to fire Bob Mueller, so it doesn’t make any sense,” in the same way that I’ve had people say, and people say about Trump also, “My client’s got a billion dollars.”
Why would he-
”Why would he cheat? Why would he get into insider trading?”
Why would he cheat?
I don’t know, but he did. Your guy did.
Right, right. Exactly. Yeah.
They do it all the time.
I don’t know why multimillionaire actresses sometimes shoplift. Winona Ryder… I have and idea.
Or put their kids through college in a weird way. Yeah.
Yeah. Yeah. Why are you spending six million dollars to try to get your kid into a school? But they do, and I’ve seen defense lawyers make these arguments in court unsuccessfully for decades.
But why not? But why not, in that way?
Let’s go really quickly through where all these lawsuits are. This is not a legal blog and stuff like that, but it’s been written about so much. There’s all kinds of cases in the Southern District. How do you look at those? They’re just going to march on through. They’re not-
Yeah, I think so.
Even though they work for the president, technically, they work for the citizens of the United States.
Yes, that’s an important distinction.
Yes, it is. They do not work for the president.
The Southern District of New York is… The Department of Justice is supposed to be independent, supposed to be at arm’s length, and the area where they’re supposed to be the most independent is on particular enforcement matters, and even on those enforcement matters where they’re supposed to be even more, more independent, to the extent that you can be a superlative of independent, have to be in cases that are politically sensitive and cannot be directed by a political officer, whether it’s the president or anyone else, who to prosecute and who not to prosecute.
And yet, I watch Billions and I know that’s not the way it is.
Well, that’s a little bit fictionalized, in a lot of ways, including-
You didn’t have Jock to deal with?
Including the personal life of the United States Attorney and his proclivities.
I don’t judge. I live in San Francisco, Preet. You can do whatever you want.
Yeah, I’m just saying, it’s not-
I’m sure that wasn’t you. It was the other guy. It was Giuliani.
That’s definitely true. Look, and so they’re going to continue to do their work. I don’t have any inside information, but I hire a lot of those people who are in that office. I don’t know what their political affiliations were. You don’t look at them. You’re not supposed to look at them. It’s improper to look at them, and they just go by the facts of the law.
When I was US Attorney, we prosecuted Democrats and Republicans. It didn’t matter how powerful you were. It didn’t matter what you’re political affiliation was. If you committed a crime, and it was in the interest of justice to pursue it and to prosecute you, we did, and I presume they will do the same.
You presume they’ll do the same.
But do you have any worries about that?
I really don’t. I really don’t. Look, is it possible-
There’s also attorney generals, too.
Yeah. Is it possible that an attorney general on the eve of the Southern District wanting to hand down a particular indictment of someone close to the president … Would he reach in having been briefed about it, and say, “No, you cannot do that.” You know, I suppose, but that’s a really, really big deal. That’s a really hard thing to pull off, and I think it’s a really hard thing to pull off quietly. I do.
Right. Okay, and there’s also the state’s attorney generals who can also pursue.
Yes. With respect to those cases, people can’t be pardoned.
So, that’s something significant as well. In New York State, the attorney general has been working on this Trump Foundation case. It’s not criminal, but it’s shed a lot of light on how the Trump organization, not the organization, but how the Trump folks deal with institutions that they are responsible for and that they manage.
Right, so there’s all kind of lawsuits going back and forth. Again, it takes time. All these things take time.
They do take time.
Right. So what does that mean then?
Look, it means that … People used to ask me when do you think Mueller’s going to be done? Or when do you think the Southern District is going to be done, after they did the-
When they’re done.
-the search of Michael Cohen’s apartment in his hotel and his safety deposit box. I’d say I don’t know. In some ways it’s important to believe that they don’t know, because if you know at the outset of a case when you’re going to be done, then that suggests that you’ve prejudged it in some way.
I’ll just give you an example of the case. I never had a case as big as the President of the United States, but we prosecuted in New York the leader of the New York State Assembly and the leader of New York State Senate, one a Democrat and one a Republican, and I describe some of this in the book.
There were times during those two long parallel investigations, separate cases, but they were done in parallel, where the prosecutors would come into my office and say, “Well, how is it looking?” They were like, “I’m not sure it’s going to amount to anything.” Then, a couple of months go by, and they follow up on some other leads, and they would say, “Oh, my God, we really I think are going to have it. I think we can sketch out this scheme, and I think we can do it very quickly.”
Then you think, Okay, it’s going to happen soon, and then they come back again, and say, “Well, you know we’re kind of wrong about this, but now we’ve gotten these other bank records. These other bank records don’t solve the questions, because we see this other set of moneys coming into this other bank account. Now we have to subpoena that stuff.” It’s just sort of a long-winded way of saying you don’t know what the twists and turns are of the case. You learn that after the fact. Sometimes things can happen very quickly. Sometimes it takes a very, very long time, and sometimes they lead to something, and sometimes they don’t. How’s that for an unsatisfying answer?
It’s very unsatisfying. I have to ask you one more, and then we’re going to get to tech. Just now, Nancy Pelosi just declared we’re in a Constitutional crisis. Now, you’re not a Constitutional lawyer, but it’s clear … You know about subpoenas.
I do. Look, I think that we have been in some kind of crisis for a long time.
That predates the non-responsiveness to subpoenas from Congress, when the President the word of Vladimir Putin over his law enforcement agencies, his intel communities. That’s a crisis. When you have the President doing all sorts of things where he denigrates particular judges by name, where he says that the mainstream media … He’s on occasion dropped the caveat of fake news. Whatever that means. The mainstream media is the “enemy of the people.”
Enemy of the people. Yeah.
Yeah, those are crisis points. I think, and there are a lot of those, but now you have the House of Representatives that’s led by the opposing party, and they have responsibilities to do oversight, and they’re not being responded to in the way that they want. We’ve seen that before.
I think this is worse, because I think you have a more intransigent President. You have him saying things not like we’re going to take a look and see which things will respond to and which things not. The President, at least, has taken an extreme position. Basically, saying “enough,” and Mitch McConnell’s case closed, and Donald Trump says … essentially I think he’s giving marching orders to folks to oppose everything. That’s not right.
So why do people follow that? Why are people … looks like Don McGahn is going to follow that, looks like Barr is following it. Why do they do that?
That’s a good question.
Because they’re lawyers. These are lawyers.
I think Don McGahn is looking at this-
He’s got to know the end game. I’m sorry.
You know, I guess Don McGahn is taking the position, I’m not going to get into a fight between mom and dad, Congress and the White House, and I’m just going the maintain the status quo. It’s not a terrible tactical position for him to be in. A guy like him wants to be forced to do the thing he’s going to do.
My guess is he’s probably okay with testifying. He was okay with talking to Bob Mueller for 30 hours, but people like that don’t want to look like they’re dying to come testify, because it doesn’t help him in certain Republican circles, I bet, so he’s just going to sit tight and let other folks work it out, but as we’d said, that can take a long time.
Same thing with Mueller?
I think Mueller’s harder to prevent coming to testify, because Mueller is not a scaredy-cat, and I think Mueller will come. The question is, what strictures will there be on him with respect with classified information and the grand jury?
Can they actually prevent him from coming?
In legal battles, it depends on what the status quo is, right? So if you want to get a document from somebody, and they have the document, to get the document is difficult, because the status quo is you don’t have the document, and so if Don McGahn doesn’t want to come testify, it’s easier for that to be accomplished, because that’s the status quo.
I think that the default position for Bob Mueller is to be responsive to a subpoena and come in. I think that the President and his team will have to make some argument in court to prevent him from coming to testify, but I think that the likelihood is that Bob Mueller is going to be like, “I know what the constraints are. I’m not going to talk about classified information. I did this for two years.”
I don’t think he’s dying to testify. He’s not a talkative guy. Nobody … unless you knew him from before two years ago, knows what his voice sounds like, but he’s not going to evade. He’s not going to skip out. He’ll come.
Right. I think it’s difficult, because they were all hoping for a slam dunk. The Democrats were certainly hoping for more of a slum dunk in order to … although, there’s plenty there. It seems like there’s a lot.
There’s a lot there, but this is the irony of sort of expectations and how political investigations are investigations done by people like in Congress are so different from how normal prosecutors do it.
One of the interesting things about the whole Mueller report is that, do the thought experiment to some people have suggested, and think to yourself, imagine you didn’t know anything in it until the day it was published or imagine even half of it.
Imagine you didn’t know about the Trump Tower meeting, even on the collusion conspiracy stuff, and all of a sudden one day there’s this report that lays all this out.
You’d be like, whoa.
It’s because the drip-drip-drip of social media and cable.
And the fine reporting. The “fake news” the Donald Trump decried. I think there’s an argument that it sort of saved him, because there’s nothing “new.” Things like impeachment need momentum, need oxygen, and need new stuff.
Now, imagine if … In my office when I was US Attorney, that there had been a drip because somebody had been leaking and someone had been telling the press about stuff, and so every allegation that we’re making about Figure X was kind of known in the press, and on the eve of the indictment, I call my team. I was like, “Guys, it makes no sense to indict this guy, because the public already knows.” No, of course not. You would indict and you proceed to a court of law.
It’s kind of bizarre that we have this problem here, but it’s because it’s a different kind of process.
It’s also been … I do think social media has to do with it. Everyone knew everything. Everyone knew. The press, the stories that were amplified by social media and then amplified by cable, and then amplified again on social, cable, it just creates this no-
The press maybe did its job too well.
And people move on. People move through things.
Well, people move on more rapidly than any other time that you and I have ever lived.
Right. No. Absolutely. Move on like crazy.
Like crazy. From morning to afternoon.
Didn’t he kill someone last week? It is, it’s like watching a TV show.
The New York Times, it’s great. Susan Craig is a great reporter, and she’s done a couple of big scoops. The president lost a billion dollars. The likelihood that anyone is going to be talking about that on Friday … I don’t know what day it is.
Is zero. The tech story came and went. It did win the Pulitzer Prize, but you’re right. One hundred percent. Although, I’m going to keep it going with like, “Oh, that technology company lost half a Trump.” That’s what I’m going to do.
Let’s finish up talking about the tech companies. Where they’re going is right now there’s questions if the FTC is going to hold Facebook in contempt. I guess, a version of in contempt, or responsible for this. Mark Zuckerberg responsible, personally liable, for some of the things they’re doing. When you look at the tech industry, it’s ripe for regulation, fines, legal action.
They’ve been protected, because of section 230 of the Communication Decency Act. They have immunity. What’s next, from your perspective? If they hired you, Preet Bharara.
I don’t know. First of all, I would study it much more than I have for this question.
Look at the emails. You know there’s emails.
Look, I worked in the Center for four and half years, and there was a lot of discussion about updating the laws to take into account new technology, both in the law enforcement area to combat the cyber threat and also in this way that you just talked about. There’s not a lot of appetite to do it (a) because there’s not a lot of expertise and (b) it’s kind of like a lose-lose proposition.
There are people who think on the one hand, privacy is really important. On the other hand, and maybe this is changing over the last couple of years, but a few years ago, these were sort of untouchable businesses, because they were hot. They were cutting edge. There were considered the wave of the future. To be a person in Congress or somewhere else who said, “We need to tie them down,” whether it’s Amazon or anyone else. I know Amazon’s a different kind of thing, but we need to let these platforms live and grow.
The expectation was that these would be great engines for democracy and communication and freedom and they would know no national boundaries, and if you were an oppressed person in some other country, this was a way for you to bring democracy and justice to your people in your country, so who’s going to tamp that down? Then, all of a sudden you take a nap or you sneeze, and you have these huge-
-monopolistic power, and then the counter to that happened in a way that I think was maybe predictable the smart people like you, but not predictable to other people, that rather than have this sort of pro-freedom, pro-democracy, pro-good debate result, you have the opposite. You have hate-mongering and toxicity and the shutting down of voices.
And the Russians moving in to live with us.
And the Russians moving in. Yeah, and corrupting our elections, and doing all sorts. It’s like anything else. It’s like a Twilight Zone episode. You get this gift that seems so wonderful and perfect and amazing. Oh, wow. It’s got a lot of bad things going on, so I think you need to have will on the part of people in Congress and an education on the part of people in Congress.
But there are more voices speaking out.
There are. There’s Warren. There’s a lot. There’s a lot more.
There are. Among the problems you have is size. You and I were talking right before the show about this piece by Chris Hughes, one of the co-founders of Facebook. Yeah. Look, I think there’s an argument to be made. I haven’t examined the Sherman Act for this purpose.
But there’s lot of ways. Do you ever imagine that any of these companies will be held criminally liable for … if you were at the Southern District…
I don’t give advisory judgements.
On who committed a crime. I’m sort of like Bob Mueller in that way on obstruction, but you would take a look at these. Look, it is a very difficult thing to hold an institution criminally liable. It just is.
It probably is a good thing that it should be difficult in the same way it’s difficult to hold an individual criminally liable, because you want the standard to be high, because you don’t want prosecutors to be abusing their power, and saying like anybody I want I can throw in jail, anybody I want I can prosecute. So the standard should be high, and the guidelines for prosecuting companies is very high in the Justice Department, because you can bring the economy to a stand still. That doesn’t mean they shouldn’t be. It depends on what the facts are.
All right. I’m going to finish up lastly, law itself being changed by tech. Where do you think that’s going?
What is it?
Law itself. The legal profession.
Has it been?
Yeah, it will be. AI lawyers, Preet.
God, that freaks people out.
We don’t need lawyers for a lot of this. It’s pattern matching. You can search for it. There’s so much AI is going to do here.
I’ll tell you, another way in which tech is changed the law, and I tried to be a pioneer in this in my own office is you have so much data. In the old days, lawyers would sit down with boxes and boxes and boxes of documents, and it was very difficult to figure out the flow of money. It was very difficult to figure out the flow of communications. The availability of technology to help you sort through enormous amounts of … We were one of the first companies that paired with a tech company in the whole Justice Department to try to help us-
-understand the data that we had. Yeah. You can do a massive amount of things you can figure out. In some ways, depending on the data you have, you have to worry about privacy concerns there too.
You got to worry about that.
I know you people like to surveil.
Some people call it spying. The attorney general calls it spying. When it’s court authorized, it’s not spying.
What a horse’s ass he is. Anyway, move along. I can’t even look at him anymore. He’s just got to leave.
It’s an interesting thing though, he-
He has hurt his reputation quite considerably.
I don’t think he had a good one to start with.
In the legal circles, he did. Maybe those legal circles were for-
You people allow a lot.
Reporting it’s known as a hack.
The person who was the acting attorney general when Bill Barr was nominated was a guy by the name of Matt Whitaker.
Oh, that guy.
Remember that guy.
Okay. All right. Sure. He’s better.
So, you know-
When you have someone like that-
But like a golden retriever would have been better than Matt Whitaker, but go ahead. Probably really good actually.
No, you’ve now stumped me.
Okay. All right. No, legal. Finish. We have to finish up. Legal…
Oh, yes. There are a lot of ways just like in all sorts of other sectors. If you had people who weren’t doing their job properly and were charging you an arm and a leg to do something that a computer can do, then yeah. I mean, tax preparers.
I was just thinking the other day. I was making travel plans. Remember the old days?
Yeah, you called the travel agent.
Call the travel agent, and there were all sorts of fees built in, and that’s something that’s totally gone.
Gone. Law is about to see some real ugly AI.
I’d like to think that you’re still not going to get … Okay. Listen to me. You’re not going to get a computer to argue in front of a jury. Yes, there’s lots of things they’ll be able to do, be able to assist.
The creative parts of law.
But justice is going to be done by flesh and blood human beings.
Well, no, but police surveillance … A lot of policing is-
-being through AI, which I think has to stop, because the data is so dirty.
Yeah. I think … I had a conversation-
Dirty data. Do you know that expression?
Dirty data. Lot of policing-
Michael Jackson song?
No. God. A lot of the data that police departments use and put into these predictive policing stuff is dirty.
I think you’ll have to be very careful about AI. These are conversations that are happening at the cutting edge of law enforcement now. You can have bias built in, but at the same time, again, just speaking very, very generally, you have bias in human beings too.
And so it’s this constant tension between trying to figure out the way in the law and justice issues generally figuring out how to do the right thing that doesn’t have bias in it. What’s going to have less bias? The human beings at the LAPD or this algorithm that you program into your surveillance cameras, or other ways that you try to sift through all the visas and passports of people that are coming into the country to figure out who’s more likely to be problematic and who’s not. That can do a service. It can also discriminate against a lot of people.
And then we’ll get to pre-crime, but that was a Tom Cruise movie.
Yeah. That was a good movie.
Yeah. It was. Good flick.
I really don’t like watching Tom Cruise movies, but that happens to be a fantastic movie in general.
It was well done.
It was full of ideas that are now coming into fore now. The idea of pre-crime. Are you for pre-crime or against it?
No, I’m not for pre-crime. You’re trying to get me.
Just a little sci-fi for you.
But I think there you have to have three ladies soaking in milk.
Yes, exactly. Now, last question. As the author of Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and Rule of Law … You like how I put your whole book in there?
What is the key thing we have to think about right now in this very disturbing time that we’re agitated almost continually from a legal point of view? Is it eventually, good triumphs or eventually, it doesn’t always?
I think it takes good people to not get inured to all the bad stuff going on, who stand up for the right thing, whether it’s journalists or lawyer or directors of the FBI or regular citizens who call stuff out.
One of the worst things I think this administration has done was this completely absurd, brazen policy with no exceptions of separating kids from their parents at the border.
Yeah. We didn’t get into that.
And nothing required doing that, and they were lying about it. They were saying it’s not a policy even though it was a policy. Jeff Sessions said a lot of terrible things about it. You know what? It’s not fixed, and a lot of these families have not been reunited, but they had to retreat from the policy. You know why? Not just because of lawyers, because people get really angry about it, and they demonstrated about it, and they showed political force. The President never retreats from anything, and this was some retreat. That shows you the power the people could have to undo bad things that are happening. That to me is the biggest take away.
Are you hopeful or not hopeful?
I’m always hopeful.
You’re always hopeful.
Yeah. America is still really great. I keep quoting from someone I had on my podcast. It was very intelligent, sounded more intelligent because he had an English accent. Ed Luce, and he … I asked him this question-
Who is this?
Ed Luce. And he said that he thinks the structures and the institutions of America are very strong. I think the same thing, and I think they’ve resisted this bad stuff pretty well, but he said I think it will be okay. He said, “But I reserve the right to re-evaluate my opinion if Donald Trump gets re-elected.”
That’s what I think is true. That I think in one term, with all these attacks on institutions and on norms and on democracy and the kind of rhetoric that’s being used and the anti-immigrant… I’m an immigrant. Proud immigrant, born in India. I think you can recover from that much more quickly and fully than you can if America decides to re-elect this person. Then, you have eight years. Imagine, what the second four years is going to look like. Then, I’m really worried.
All right. Preet Bharara. On that note, thank you so much and thanks for coming on the show.
Thank you for having me.
Really appreciate it. I really do enjoy you, and you should keep tweeting. You’re very good at it.
Actually, I think you’re not silly. I think you do very cogent and smart things, although George Conway remains my favorite lawyer person. Although, I agree with you, and I don’t agree with him. I like his corgis. You could throw in a few dogs. I think I’d appreciate it a lot more. If you don’t mind.
Okay, Kara. Will do.
You do cats. He does dogs.
I’m allergic to cats.
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