Jeffrey Toobin: Hello everyone. How’s everybody doing tonight?
You’re not too upset that Michael Avenatti was arrested are you? Oh, you’re okay? You’re okay? Alright. Alright.
Welcome to the Sydney Goldstein Theater and City Arts & Lectures. We are so honored and thrilled to welcome the former US Attorney–we’ll get to that, don’t worry. The former US Attorney for the Southern District of New York. The man who was fired by Donald Trump before it was fashionable to be fired by Donald Trump. The author of the new and best selling book, “Doing Justice.” My CNN colleague, Preet Bharara. Welcome. Please, sit down.
Preet Bharara: That was a good intro.
Jeffrey Toobin: Well, thank you. I’m good at my work.
Preet Bharara: Very lively.
Jeffrey Toobin: Yeah, I’m a lively guy. Okay. November of 2016. Little bit, few days after the election, you get a phone call. And you’re invited to Trump Tower. Right?
Preet Bharara: Every man’s dream.
Jeffrey Toobin: Well, no, no. So, so who called you?
Preet Bharara: So…
Jeffrey Toobin: We’re getting right to it. Let’s go. Come on.
Preet Bharara: I mean, there’s no like, gentle lead in?
Jeffrey Toobin: No no no no, no gentle lead in, we’re just talking here.
Preet Bharara: So I can’t even see these people. It’s so dark.
Jeffrey Toobin: Well that’s, you know, welcome to show business.
Preet Bharara: They’re here, right? Okay.
Jeffrey Toobin: That’s how it works.
Preet Bharara: Have you all been drinking?
Jeffrey Toobin: It’s California.
Preet Bharara: I know.
Jeffrey Toobin: Smoking.
Preet Bharara: I know. Vaping.
So yeah, I got a call from my former boss, Senator Schumer, for whom I worked for four and a half years on the judiciary committee, saying that Donald Trump had called him. And Donald Trump had said, you know, “what do you think if I reappoint Preet as US Attorney?”
Wasn’t expecting it, because usually when a new president comes in, particularly one of the other party, everyone over a period of time and in an orderly fashion leaves, and I intended to leave. Set up a nice vacation that I was going to take with the money that I was soon to be making out of public service.
And I thought about it, and I said, yeah, I would love to keep serving. It’s a great job. I have a lot of unfinished business. It’s an independent office. And then I was asked to meet with the president-elect at Trump Tower. I went.
Jeffrey Toobin: So like, set the scene. Like what happened? Like, you know…
Preet Bharara: So I went–I was asked to come by Rhona Graff, who is Donald Trump’s long-time assistant secretary. And I show up at Trump Tower on November 30th, the Wednesday after Thanksgiving. And you remember, that was a crazy time, and he was sort of holding court at Trump Tower on the 26th floor. And there were journalists who were kept behind a velvet rope in the lobby of Trump Tower, seeing people come by and sort of trying to become cabinet officials and whatnot.
And I was asked to come oddly before even, I think, the Secretary of State had been determined. Famously that week, President Trump had had dinner nearby with Mitt Romney and hadn’t decided who to appoint. Remember back to those, the good old days?
And I remember walking into the lobby and you couldn’t avoid seeing the press. And I go to the elevator bank and I was with an investigator from my office. I pressed the up button. And a bunch of people were looking at me, and a reporter yelled out, which is ironic now that you think about it, “Mr. Bharara, are you here to serve a subpoena?”
And that day I wasn’t. So I go up to the 26th floor and I go into office. And I don’t know if you, you know, this, in Trump Tower, on the 26th floor…
Jeffrey Toobin: They probably don’t, actually.
Preet Bharara: There is a lot of Donald Trump memorabilia.
Jeffrey Toobin: Wow. That’s a shocker.
Preet Bharara: There’s so much that it’s like, it’s leaning up against the floorboards. It’s everywhere. And I, and he was late, because he was getting, I think for the first time as President-elect, his national security briefing. Which I think he doesn’t do anymore. And so I shot the breeze, while waiting, with Jared Kushner.
Jeffrey Toobin: Do you know where you are? This is not like a MAGA crowd, okay. I mean, just so, you’re okay.
Preet Bharara: Just wait till I finish. Jared Kushner and Steve Bannon.
Jeffrey Toobin: You’re just making that up to…
Preet Bharara: To pander.
Jeffrey Toobin: To pander to this crowd. I…
Preet Bharara: Steve Bannon was wearing only one shirt that day. And then the President-elect came in and he was very nice. Nothing untoward happened in that meeting. He complimented the office. He complimented me on leading the office. He asked me to stay, in no uncertain terms, for another term.
And I agreed, after giving a small speech about how I presume that you want me to stay because the work of the office has been excellent. We’ve gotten good results. We’re independent. We’re–I remember saying, and making a point to say, that we’re apolitical, we don’t care if you’re a Democrat or Republican, we hold people accountable that we see fit to hold accountable. We shook hands. And then I left.
The only odd thing, that presumably you wanted to get me to describe to the audience, and some may know this, if you listen to my podcast, is he–yeah, you can cheer for the podcast.
Jeffrey Toobin: It’s called “Stay Tuned.”
Preet Bharara: “Stay Tuned with Preet.” In the middle of the meeting, he asked me for my phone numbers, and he pushes across like, you know, a post-it pad, and he basically asked me for my digits. Which is odd because obviously someone had my phone number, because that’s how I got there. Someone called me and said, “could you come?” And I didn’t think anything of it, until–do you want me to continue with the story?
Jeffrey Toobin: I do.
Preet Bharara: Oh. And then some weeks later, after I’d agreed to stay on and I went down and told the press that I’ve been asked to stay on, cause he told me to tell them that. The President-elect called me once in December and then once in January, two days before the inauguration. And it was sort of weird. He called me without –.
Jeffrey Toobin: On your cell, just him, not a secretary?
Preet Bharara: Through the secretary. And both times left a message cause I was not at my desk. And I returned the call after notifying my deputies and after notifying the transition team. It was peculiar that the President-elect was calling. And both times he didn’t say anything untoward, he just shot the breeze. and I became concerned that over time, what kind of relationship was he trying to cultivate. Eventually, you know, “Hey, Preet, what’s going on? What are you wearing?” Like, I didn’t know…
Jeffrey Toobin: I think that’s a bit much, even for this audience.
Preet Bharara: No, no, it’s not. No, it’s not. So he called me two days before the inauguration. When I thought, you know, he might be busy doing other things, but apparently–this is before I knew about executive time. So now we know that this is the kind of thing he does. And I still thought it was not inappropriate as long as I made notifications to everybody.
And then of course, almost two years ago, to the date, on March 9th, as the sitting President of the United States, he called me.
Jeffrey Toobin: Okay. And then what happened? March 9th, what happened?
Preet Bharara: So a message was left by the White House secretary that the President…
Jeffrey Toobin: Was that the first time he called you as President?
Preet Bharara: Correct. Look, up until that point, I had been leery of it and my deputies and I discussed it. The way I’ve described it before, you know, to the exent people think, well, you know, he doesn’t know the protocols. What’s so odd about someone calling an underling that he’s responsible for appointing to a position?
And I always say, my father is an Indian immigrant and retired pediatrician who practiced medicine in Asbury Park and has not served in government and hasn’t read the protocols of the justice department. And he said, “I don’t like it.” Right. He’s like, “why is he calling you?”
Jeffrey Toobin: Can I just stop for one second. I want–my goal for this interview is to try to get Preet to imitate his father as much as possible. Cause he does an Indian accent so well–please continue.
Preet Bharara: I wonder why that is. I wonder why that is. And so even he knew. And he said like, “I hope he does not call you when he’s actually the president.”
And then he did. And I know there’s, I’ve gotten into arguments with people about this, you know, “so he calls you, what’s the big deal, you call back?”
Jeffrey Toobin: What is the big deal? I mean, seriously, what, you know, what is the big deal?
Preet Bharara: I’ll explain.
Jeffrey Toobin: Okay. That’s why I asked.
Preet Bharara: So given the peculiar nature of the justice department, and not only that, but sort of the peculiar nature of being the US Attorney in the Southern District with a particular jurisdiction, as we are now seeing fully at play, over businesses, over business interests, over associates, over the Trump Foundation, and other things, it is helpful to have an arms-length distance so that independent administration of law and justice can take place. To have an arm’s length distance from political figures, including the President of the United States.
Someone once asked me, you know, what was the best moment of working for Obama? You know, working under the Obama administration. I said, “it was that moment that he didn’t call me,” which was basically all the moments.
Jeffrey Toobin: Well, that’s a pretty good job, if you like all the moments. Yeah.
Preet Bharara: So we had a discussion. And somebody recently–I said this on television, I didn’t think it was that remarkable a thing to say–made a big deal of it. We talked about, so how is it going to look later if I have a conversation with the sitting President of the United States, totally unprecedented?
I’m not aware that this happens on any kind of regular basis. Not to the Attorney General, not to the Deputy Attorney General, not to the White House Council. Just this odd, I’m calling Preet at the same time that you know, there are various people, early on–this is in March–were calling for various investigations of the President and the administration.
Maybe they were well-placed calls, maybe they were not, but they were talking about the Emoluments Clause case and there was an Emoluments Clause case pending in the Southern District. It’s not the kind of thing where there should be casual, you know, off-the-record conversations whren you don’t know what the nature of the call was going to be.
So maybe he was calling to shoot the breeze. Maybe he was calling to congratulate us on a particular case, but not knowing what the reason for the call was, we decided that it was best not to return the call, and then 22 hours later I was asked to resign. I can’t say those two things are connected for sure. But I find it odd…They were not–.
Jeffrey Toobin: The call on March 9th you simply did not respond to.
Preet Bharara: I called the secret–I did two things, cause I’m not stupid. Only a little bit stupid. I consulted with the Justice Department and I called Jeff Sessions’ office. He was out of town and I spoke to Jeff Sessions’ chief of staff, Jody Hunt, who’s now the head of the civil division there.
And I said, I got this call. He clearly didn’t know anything about it. He thought it was peculiar also. And I said, “do you agree that given that I don’t know what the nature of the call is and given, you know, the optics of it, and given the regulations, that until I know what it’s about, I shouldn’t talk to the president?”
He said, “I agree.” So armed with that, I called the Secretary at the White House back and said, “I’m sorry, I don’t mean to be difficult in any way, but I consulted with the Justice Department and our view is that until I know what it’s about and until further notice, I don’t think I should speak to the president.” Knowing that that’s clearly going to piss the guy off, because he must be thinking to himself, cause he doesn’t know the niceties of these things, although I think he knows them more than he lets on.
And the reason I say that is, you know, people are like, “well, why don’t you just call him back? What’s the big deal?” The President of the United States got elected in part on what? On an argument that he made at rally after rally after rally, that there was something inappropriate about Loretta Lynch, the then Attorney General, having an off-the-record conversation with Bill Clinton at the tarmac. And he says, Donald Trump said, at rally after rally, “they didn’t talk about grandkids.” He said, “bullshit.” He said, “they talked about the case.”
I don’t believe that’s true. I know Loretta Lynch. I can’t vouch for Bill, but I can vouch for Loretta and that wouldn’t have happened. And this is a guy who made that a campaign issue, and now he’s calling me on the sly in kind of the same way. And how is that going to be explainable later? So that’s one of the reasons I didn’t call him back. And you know…
Jeffrey Toobin: You said 22 hours later, what specifically happened?
Preet Bharara: The acting Deputy Attorney General at the time, Dana Boente called and said, “I’ve been asked to call all the sitting Obama appointed US Attorneys and ask for their resignation letter.” So I wasn’t alone. And I said, well, I was actually confused. I was not at that moment being a diva. I said, “are you sure that applies to me? Cause you know, I had that thing? I was hanging out with Bannon and Kushner. So I have a special thing, so I don’t know.”
And you laugh, but that was a Friday. So Thursday I didn’t return the call, Friday I was asked to resign. And the rest of the day reporters called the White House and they called the Justice Department and they couldn’t get a straight answer as to whether or not the request to ask everyone to resign included Preet, me. I didn’t mean to use my name in the third person, sorry.
I didn’t get an answer. So I kind of just wanted to know, I kind of didn’t want to accidentally resign, because that’s kind of embarrassing. You’re like, “I had this great job. I was appointed by a President, kept around by another President,” it’s like, well, why are you now–why do you now have a podcast? “Because I accidentally resigned.” That would be very lame and pathetic.
Jeffrey Toobin: Yeah.
Preet Bharara: So the first day I just wanted to know if I was included, and it wasn’t clear. And by the second day–so then I refused to resign. And people were like, “well why’d you do that?”
Jeffrey Toobin: Yeah. Why did you do that?
Preet Bharara: So I’ll tell you.
Jeffrey Toobin: Good. That’s why I asked.
Preet Bharara: So, you know, I’ve lived life a long time, and I’m not accusing anyone one of anything nefarious. But I was asked, you know, point blank in an extraordinary meeting that’s never, I’ve never heard of a president asking to meet with a sitting US Attorney who has jurisdiction over all sorts of important things to that person, shaking their hand, asking them to stay on, and then with no circumstances changing, as far as I understand, telling him to go. Which is fine.
I just wanted to know for the record, is this a, you know, bureaucratic reshuffling of things, or does the person who asked me to stay, does he want me to go? Is it at his request? Is he firing me? And I just wanted to know that. I don’t know why it took 24 hours to learn whether this was the request of the President. Just so it would be a matter of record, and later if you found that there was a particular reason for it, then people could make whatever assessment they wanted to make.
But I thought it was–I never would have done that otherwise. I didn’t expect to keep the job. I had the job for seven and a half years. I’m the luckiest person in the world to have had that job for so long. But once you say, stay, and make it a big deal in front of a lot of people. And then you say go. You know, this is the guy who became the president because he was capable of saying, “you’re fired.”
I don’t recall in the show him saying, “could you please submit your letter of resignation through the Acting Attorney General of the United States?”
Jeffrey Toobin: Who wasn’t in “The Apprentice”…
Preet Bharara: Who was not. And so once they told me that, yeah, this is at the request of the President, then I left.
Jeffrey Toobin: Okay. So we have now laid out the chronology. Like, what do you think was going on?
Preet Bharara: I don’t know. You know…
Jeffrey Toobin: Because I mean, it was at the same time…
Preet Bharara: There’s been reporting on it. There’s been some reporting…
Jeffrey Toobin: At the same time, unbeknownst to you, he’s having this series of bizarre conversations with Jim Comey.
Preet Bharara: A little bit later.
Jeffrey Toobin: A little bit, but, you know, same rough period of time–that where he’s, you know, trying to establish personal rapport. He has that dinner, to ask them to stay late. Do you think it’s, a similar thing was going on? What do you think?
Preet Bharara: Yeah, so in the two years since, my educated guess is, this is how Donald Trump operates, and he probably doesn’t think it’s necessarily a bad thing. He cultivates people. He wants people to be at his side. And he especially wants to cultivate people who are in positions of, you know, authority or influence in ways that might benefit him, or in ways that might harm him unless he has cultivated them.
So, you know, we’ve had all these reports, right? He tries to cultivate Jim Comey. He takes him aside and he says to Jim, “can you do something? You know, can you lay off the Michael Flynn case?” Or, recently we just read reports, which I credit, that he pulled aside Matt Whitaker, the estimatable acting Attorney General of the United States of America, and said, can you have my successor, Jeff Berman in the Southern District of New York, unrecuse himself from the Michael Cohen case?
So all this conduct after the fact about how he tries to tell people to punish his enemies or lay off on his allies, and the way he thinks about the Southern District and the jeopardy that now we see him to be in, to me, suggests that he plays a long game of trying to get people on his side. And one of those people might’ve been me.
I’m not saying that in that phone call he would’ve said anything untoward, maybe in the fourth call, but at some point it didn’t make any other sense. I was not his friend. I was not as colleague. I didn’t know him. And the only relevance I had to his life was the jurisdiction I had over certain things.
Jeffrey Toobin: Do you think if you’d returned the phone call on March 9th you wouldn’t have been fired?
Preet Bharara: You know, I don’t know. Maybe not. Look, I’ve tried to get an answer. It may have been that he was calling me to say, “Hey, listen, I’m telling everyone else to go tomorrow, but we have this thing from last November and you’re not one of them.”
He may have been calling me to say “just so you know, you know, I thought about it and I think I need to have my own people and no hard feelings.” He may have been calling just to shoot the breeze, and when I didn’t call him back, he got so angry that he said, “no, I want to get rid of all these people.”
There’s been some reporting that George Conway was on an airplane where some weeks prior to that phone call–and I don’t know if I credit it or not, but this was in the, I think the Washington Post in the last few weeks–that Donald Trump asked members of his staff, including…members of his…I don’t know why George Conway, I remember George Conway was with Kellyanne Conway, said, don’t quote me on that, and said, “should I fire Preet, cause maybe I need loyalists?”
The other thing that happened, which Thursday, I’m told later that Thursday evening after I refused to return the call, on Fox News, President Sean Hannity literally said on on Fox News, “you know what, all these holdovers should go,” and maybe you know, Steve Miller decided at the morning meeting the next day, “you know what? Let’s just fire all of them.”
It’s not clear. I don’t know if there was a rhyme or reason. All of those things are possible. None of those things are possible. But the one thing I’m clear about is even if it’s the case that my refusing to call the President back cost me the best job I will ever have, it’s one of the best decisions I ever made.
Jeffrey Toobin: Okay. Your book is in many respects a memoir, but I’d like to go back even further, and talk about like, where you grew up and where you were born and how you came to be Preet Bharara. Where?
Preet Bharara: So I was born in India, so, to my mother and father, which is how it works. I’m trying to go back really far. And really, you know, I’m an very, you know, my Twitter bio says the few important things you need to know about me, couple of which are points of pride.
One, it’s, I think it says, banned by Putin, cause I’ve been banned from Russia by Vladimir Putin. Fired by Trump. Proud immigrant. Springsteen fan. Author. Actually it doesn’t say author yet. I should add that.
And so my family came to this country with me when I was about a year and a half old because my father wanted a better life for us. My dad was one of 13. My mother is one of seven. My dad is the first person in his family to go to college. And he understood the power of education. And that’s all he really cared about when my brother and I were growing up in New Jersey by way of Buffalo, New York. Deeply disappointed that neither my brother nor I went to medical school. It wasn’t until I think I was confirmed unanimously by the Senate. My dad was like, “it’s okay now.”
Jeffrey Toobin: And if we could just take a slight detour to your brother who has done okay, as well. To just tell us what your brother does for a living. Or did for a living.
Preet Bharara: So my brother…
Jeffrey Toobin: It’s a Silicon Valley related thing, so you’ll understand it here.
Preet Bharara: So my, so yeah, you’ll love this story. So my brother and I both disappointed my parents. Didn’t become doctors. We both went to law school. We actually both went to the same law school. Went to Columbia Law School. So basically we had the same track in life, based on representations made to us. We had the same parents, so similar DNA.
After law school, I went to go work for a big firm. My brother went to go work for a big firm. Then we both went to work for smaller firms. And then I eventually went to work in the Senate and then became, you know, was, was appointed by the sitting President of the United States to be the US Attorney.
So I thought I’d won the family lottery. I was totally kicking my brother’s ass cause I had, among other things, subpoena power. My brother had in the meantime, started an internet company that failed. In which I lost money. And then at some point, my brother decided, he called me up when I’m the US Attorney.
He says, you know, “Hey, I wanted to let you know that I’m making a career change.” I’m like, “what’s that?” He’s like–at this point, he was the general counsel of a publicly traded company. He’s like, “I’m leaving the company. I’m starting a business with my best friend Mark,” with whom he had, he had started the first internet company that failed. I don’t know if I mentioned that.
And he said, “so we’re going to do this thing.” I’m like, “what are you going to do?” He’s like, “we’re going to sell diapers.” I said like “door to door? Like, what do you mean?” He’s like, “no, on the internet, there’s this thing called the internet.” I’m getting there.
Jeffrey Toobin: No, I got no hurry.
Preet Bharara: We’re going to, cause I have a book to talk about. Yeah. And he said, “we’re going to sell you diapers on the internet.” I was like, “are going to do this on the side?” He said, “No I’m going to quit my job. I’m going to, you know, give up my health insurance and we’re gonna sell diapers on the internet.”
I’m like, “knock yourself out.” And my parents, my parents were, think about how my parents felt that my brother had gone from being, you know good Ivy league graduate, University of Pennsylvania, Columbia Law School, had these great jobs in the law and now was literally, this is true, selling diapers on the internet under the slogan, “we’re number one in number two.”
You guys are like “that’s so funny.” My brother laughed–some of you may not know this–my brother laughed also when he sold, he and Mark sold that company to Amazon for $540 million. Which was my brother’s way of saying, you know, “Hey bro. I see your whole US Attorney thing and raise you…”
Jeffrey Toobin: And I raise you $540 million.
Preet Bharara: $540 million.
Jeffrey Toobin: Yeah, yeah. That’s,
Preet Bharara: Yeah. That’s why I work for him now.
Jeffrey Toobin: That’s, as you do. Okay. But it’s like, why be a prosecutor out of all that? You’re not a pediatrician. You’re not a diaper salesman. You’re, you became a–why did you become a prosecutor?
Preet Bharara: And I relate a little bit of this at the beginning of the book. So I was very moved by some of the things I read when I was young, including “Inherit the Wind.” And you know, a lot of people talk about “To Kill a Mockingbird,” but I was very moved by and thrilled by–moved and thrilled. I think those are two different things, but they combine.
When I read stories and watched plays or movies about trial lawyers, and not just any kind of trial lawyers, but trial lawyers who were trying to make a point, or do good, or make change, or pursue justice. And it sounds corny, but that was true.
And then when I decided to go to law school, because I like to argue, when I wasn’t great at chemistry. I was good at biology, but not great at chemistry. And then when I went to law school I took– and I thought I wanted to become a prosecutor.
And you know, you did the same thing, and I imagine they’re the same reasons. Everyone I met who had been a federal prosecutor in particular would say it’s the best job they’ve ever had. And they loved it. And they got to learn and they got to do the right thing. And as I say, as a mantra throughout the book, and I’m sure this was said–and people, you know, I’m sure you know that Jeff was an illustrious Assistant US Attorney in the Eastern District of New York.
Jeffrey Toobin: The …
Preet Bharara: Which is the other
Jeffrey Toobin: …Less illustrious.
Preet Bharara: No…
Jeffrey Toobin: I was fine.
Preet Bharara: It’s illustrious enough.
Jeffrey Toobin: No, no. The office…no it was….Don’t start on that shit. You have undoubtedly heard about the Southern District of New York, which is very fancy. I was in the Eastern District of New York, which is like the Avis to the Hertz. But anyway, so and, but don’t even start on that. Go ahead with your speech. Anyway…
Preet Bharara: I once told you this story. So sometimes I will run into Jeff at CNN, cause we both work there and he’s–I don’t know if you’re my boss or not, but you have a better title.
Jeffrey Toobin: I am. Yeah. I’m tough, but fair.
Preet Bharara: And I told him the story that I want to tell more people who are law geeks. I once tried to send a text in which I typed “EDNY” and it auto corrected it to “SDNY.” I’m like, man, this iPhone software is really AI smart.
Jeffrey Toobin: So you were an assistant. And then you went to work for Schumer and you came back as US Attorney. And the book is really–and the book is sort of a memoir, but it is also, and you know, again, not you know, not trying to be pretentious, but it’s about values. It’s about the issues that arise in the criminal justice system. And, you know, look, we’ll get to Mueller.
So, but I want to talk about some of the issues that are raised in the book, you know, and…
Preet Bharara: And they bear on the Mueller question.
Jeffrey Toobin: They bear on the Muel–but one of them where certainly both as a prosecutor, and as an journalist, one subject that I have always found ethically fascinating and complicated is the issue of snitches and cooperators and people who agree to turn on their confederates in return for better treatment. A system, by the way, which is not in use in all of our peer countries.
Preet Bharara: It’s not.
Jeffrey Toobin: What is your–how did you approach that issue? What do you think about that?
Preet Bharara: So it’s very complicated. You know, everyone is getting sort of an education on a lot of the–which is why I think the book is timed well, accidentally, because people are watching what’s happening with the Mueller investigation and with the SDNY and Michael Cohen and will he flip, will he not flip? Manafort– will he flip, will he not flip? He tried to flip. It didn’t work. What’s happening with the flip? How do you get people to flip? Do you get a–you know, it’s all, it’s like a pancake house. Everyone’s talking about flipping all the time.
And both based on my experience, and also having some remove from that time, you reflect on it a little bit. You don’t always reflect on it when you’re in the trenches, because the system is what it is. You’re in the machine, and you think, well, this is how the gadgets, how the gears work. This is how the cogs work.
But it’s a very peculiar thing, this idea of cooperation, this idea, and I sort of go, I think that the chapter subheading is something like the, you know, tthe moral thicket of cooperating witnesses, or the moral quicksand of cooperating witnesses.
Jeffrey Toobin: Why is it moral quicksand?
Preet Bharara: Because you’re literally saying “one day we were going to prosecute you and punish you to the full extent of the law. But if you decide to tell on these other people, now you’re our friend and you’re–literally, you’re our ally and you’re in service with us. And if you do this thing that–generally, you know, society doesn’t like tattletales. If you do this thing, then we will help you. And even if you’ve done terrible things that would cause other people to go to jail, maybe for life, maybe you’ll just get a few years, maybe you’ll get probation.”
if you go back to sort of, you know, moral philosophy and political philosophy that you may have studied in college and may still think about, it’s utterly utilitarian. And it would not be morally deficient to say that’s a terrible way of doing business, but we have decided in this country, as you say, other places don’t do it. We’ve decided to engage in, you know, not as a legal matter because it’s accepted, but as a moral matter and a philosophical matter, some of it’s quite suspect.
Jeffrey Toobin: For example, I mean, one of the things that I came across in, in my experience, again, as a prosecutor, as a journalist, the decision to flip is often made by the smartest defendant. Because in the utilitarian calculus of how our system works, there are enormous benefits. You know, in my–when I was in the Eastern District, we, they finally successfully prosecuted John Gotti after Sammy Gravano, who was the number two, flipped, and in the course of allucuting his crimes, he killed 15 people.
Preet Bharara: 19 I think.
Jeffrey Toobin: Was it 19? And he got five years in prison. That’s what a reward he got.
Preet Bharara: See, you’re all gasping.
Jeffrey Toobin: You’re all gasping. And he got out and then he started committing crimes again, so he’s doing more time than five years. But I mean, that’s the kind of benefit you can get. So in many respects, the worst people get the most benefit.
Preet Bharara: Yeah. Although, again, the practice is, you arrest a person here and you only flip them and agree to cooperate them, if they can give you someone further up. So Sammy the Bull was a bad guy…
Jeffrey Toobin: But he was number two and he gave us…
Preet Bharara: He was not number one, right. And so that’s the system we sorta– but you know, there are lots of crazy moral dilemmas that arise, and I talked about a couple of them. And even in a system where you have that happening, one of the stories that I still think about, that I recite in the book, is one where there was a guy who didn’t kill people, but he engaged in insider trading. A guy named Noah Freeman. And we had him dead to rights and an FBI agent approached him one day, and rather than put up a fight, he basically gave up right then.
He agreed to flip, and it’s sort of like the, the Holy Grail of cooperation, where you don’t arrest them, and they go to court, and then they decide later to flip, which means they can basically only testify as to things that happened historically and give you testimony. He could actually do the thing that you want more than anything else in the world. Wear a wire.
And not only wear a wire, he agreed to wear a wire against his best friend and the person who was his best man at his wedding. And see, they’re all gasping again. Yeah, you guys gasp a lot. And for whom he was going to be the best man, I believe.
And he made a simple calculus. He’s like, I just had a baby. I can’t go to prison. I’ll do whatever it takes. And so his friend, a guy named Donald Longueuil, he ended up going to prison only because the first guy decided to flip and wear a wire against the second guy.
And the reason I mentioned it is, the two Assistant US Attorneys on the case were taken aback by this. And these are people who had done gang prosecutions and mafia prosecutions, and they had, you know, prosecuted murderers and seen terrible things, had done child sex trafficking cases and that, and none of that floored them. The thing that floored them and made them feel queasy was this white collar guy like that, at the drop of a hat, wore a wire on his best man.
And it makes you think about what the system is. But you would not have the kind of public safety you have. You would not have the degradation of the mafia that you have in New York and other places, unless you had cooperating witnesses. Unless you allowed that.
So you could make a decision as a society that we don’t want to get into the muck. And that prosecutors shouldn’t use cooperating witnesses. And we can be more pure. But you know what? You’re going to have a lot more crime. And that’s the bargain we have struck.
Jeffrey Toobin: There’s another chapter in the book about culture, about the investigating prosecuting entities, companies, groups, where a lot of bad things are going on, but you can’t always prove what everyone is doing.
What–talk about that. And it comes up specifically with the famous hedge fund SAC and Steven Cohen, who was under investigation for quite some time. What is it like to investigate a culture?
Preet Bharara: So you don’t investigate cultures, you investigate particular people. You investigate institutions.
But in a chapter in sort of the section that I called accusation and how do you decide whether to bring a charge or not bring a charge, accuse someone of something or not accuse someone of something. In passing, I said the question I get most often, or one of the questions I get most often is, “how come some places have more criminality than other places? How come, you know, some hedge funds had a lot of people who got indicted and some hedge funds had zero?”
And one reason may be, you didn’t have the evidence. But another reason is, you know, different places are different. And one of the reasons they’re different is they had different cultures. And it’s true of banks. It’s true of schools. It’s true of theater companies. It’s true of any institution. There’s such a thing as a culture. And there’s a good culture. You have fewer enforcement actions, you have fewer people who commit crimes. And where they don’t have those kinds of cultures, you have more, it’s different.
And I open the chapter by talking about SAC Capital, which was a huge hedge fund where we arrested and convicted a number of people. And one of the things that I remember about that–and we ended up indicting the entire hedge fund group.
Jeffrey Toobin: You indicted the entity, but you’d never indicted Steven Cohen, who was the boss.
Preet Bharara: Correct. And one of the reasons we indicted the hedge fund was, there was a pervasive, you know, history and legacy and culture of committing bad crimes. And the one thing that I thought was most interesting in the indictment that my folks put together was an instance where, and there–lots of people committed crimes at this place–but it was an instance where there was a person whose name I’m now forgetting, who had a reputation for, and some evidence with respect to him, that he was engaged in insider trading when he was at another hedge fund.
And he interviews with SAC capital, that was known as a place where people wanted to have edge, you know, and some people called it black edge. And it was either the general counsel or the compliance office who said, “maybe we shouldn’t hire this guy because his reputation proceeds him and we have some reasons for alarm.” That was ignored and he was hired anyway. And unsurprisingly, within a few months, as he confessed later, he began to engage in insider trading activity.
So that’s an example where I say, you know, culture is not just about having a compliance program, not just about having a general counsel, not just about having written policies and training programs. You have to have, you know, integrity in the culture of the place, where people care and tell other people they care about whether they’re doing things the right way. And you have to listen to the watchdogs, the internal folks at your company or at your firm who say, “don’t do that thing because it’s not important enough to risk the viability and the existential, you know, continuation of the firm to get someone who may put all that at risk just because they have a good book or they have inside knowledge.”
And those things mattered. It matters–and I tell some stories about the NYPD–it matters in all sorts of institutions. You know, I used to get, I once got asked a question when I was giving a talk at NASDAQ with a bunch of directors of publicly traded companies. And people think of culture and integrity completely differently from how they think about other things that are risks to a firm.
And someone asked me the question, I recite this in the book. “Mr. Bharara, what percentage of time do you think boards of directors should think about ethics and should think about compliance?” I’m like, “I dunno, 12 and a half percent, like, I don’t know.” It depends.
If you’re a good company and you’ve got in no trouble and there’d been no enforcement actions and everyone’s happy, then probably not a lot of time. If you’ve had seven guys indicted at your company and they get led off in cuffs and you’ve got three other regulatory agencies looking at you, you’d probably want to spend a lot of time thinking about those things.
But the reason I mentioned it is, no good corporate executive in Silicon Valley or anywhere else, would think to ask the question, you know, sir, what percentage of time should we think in the company, should we think about competition? Or what percentage of time should we think about innovation? What percentage of time should we think about creativity?
You wouldn’t ask those questions cause you’d be a lunatic to ask those questions. But they ask, cause it’s, those are all things that are a potential aid to the company or risk to the company. And people understand that it depends on the circumstances, but when it comes to things like compliance, they think there’s some formula. 6% and that’s enough.
Jeffrey Toobin: You have a celebrated reign in New York, political corruption, insider training. One area where you and the whole justice department was criticized for, is that, in the financial collapse of 2008-9, no one in a leadership of the firms that collapsed–Lehman Brothers, et cetera–were personally, criminally prosecuted. Why? Why not?
Preet Bharara: So I spent some time in the book talking about this, and this is the question I get more often than anything else. I’ve talked about it for 10 years. First, I want to always acknowledge when I get the question, is the incredible righteous, legitimate frustration that people had about that. Bad things happened. People were greedy. People who were reckless, at a minimum. People were negligent. People didn’t learn from their mistakes. People engaged in practices that gave them some plausible deniability, perhaps, for bad things.
But I want to tell everyone that the people in my office–and by the way, dozens of offices who had assigned to them or took upon themselves investigations of matters that might relate to, and entities that relate to the financial crisis–shared that frustration, because they’re human beings too. Before any one of those people, myself included, was a prosecutor or an investigator, we also had bank accounts, we also had 401k plans. And so every incentive on the part of those people was to hold folks accountable, both because it was part of your job and also because you were a victim of the financial crisis, just like everyone else.
But unfortunately, the mandate of people in my line of work, when you’re talking about criminal prosecution and having to bring cases that you can prove beyond a reasonable doubt against particular people and show particular intent in their minds–it’s a high bar. And sometimes that’s difficult.
In some cases, like in the financial crisis, it proved to be immeasurably difficult for everyone. And there are various ways that I explain in the book why in certain contexts people had a sort of get out of jail free card because they relied on the opinions, the third party opinions, of accountants or lawyers who blessed particular transactions or blessed particular degrees of disclosure in respect to transactions that were happening.
And that frustrates people. It frustrated people in my office. But at the end of the day, if you don’t have the wiretap, if you don’t have the cooperating witness, if you don’t have the evidence, and you don’t have the law that makes it clear you can prosecute, then you can’t.
And that, so I respect and appreciate the frustration. What bothers me sometimes is the suggestion that every once in a while people make, is that people in my office, and in New Jersey, and in California, here in LA, in Washington, and all sorts of other places, lacked the courage or lacked the fortitude or lacked the interest in bringing in cases like that. Because that’s not true. Everyone worked really, really hard. The cases that we had assigned to us, people worked very, very hard.
And I would point out, by the way, that it’s not just one office that didn’t bring a case, it’s no office brought a case. And those decisions were not made at the highest level. It’s also the rank and file career people who worked in my office sometimes, you know, round the clock for 12, 18, 24 months on cases, and never made a recommendation that you could charge a particular person for a particular crime.
I’d also point out that, and this is not comfort to anyone, but just by way of explanation, regulatory agencies like the SEC, the CFTC and others–who, by the way, have a much lesser burden. They don’t have to prove guilt beyond a reasonable doubt. They’re not even talking about the taking away of people’s freedom. They just have to prove their cases by a preponderance of the evidence. I’m not aware of any regulatory agency that brought a much easier to bring enforcement action against the head of a financial institution in connection with the financial crisis.
That’s not because thousands of people didn’t have the guts or didn’t have the expertise or didn’t have the interest. It’s because of the peculiar nature of that particular crisis in the country, I think, that didn’t allow those kinds of cases to be brought.
Jeffrey Toobin: Perhaps the most topical chapter deals with the question of what you do when you don’t decide not to prosecute someone.
And, you were very successful. You prosecuted the Senate majority leader. You prosecuted the speaker of the New York State Assembly, but you investigated the Governor of New York, Governor Andrew Cuomo, you investigated the Mayor of New York City, Bill de Blasio, and both of those cases ended without charging the principles.
What do you think is the ethical obligations of a prosecutor when he or she decides not to bring charges? And how much do you say publicly?
Preet Bharara: So, boy, that’s an interesting question, isn’t it?
Jeffrey Toobin: Yeah. I only ask interesting questions. It’s my job here, yeah.
Preet Bharara: It’s really, look, it’s really tough. And there’s an instinct on the part of prosecutors who are trying to ferret out bad conduct, depending on what the circumstances are.
So, there’s a certain kind of case, the one category that’s very easy is, you know, if someone comes forward and says that we think that the, you know, the ex politician is engaging in bribery or some other bad conduct. And you look at it and you realize it’s all BS and it’s made up, it was a political enemy, and you know, you walk away from it. And that’s very easy. It’s very easy not to say anything about it.
There are other cases where you do an investigation and it’s high profile, for reasons beyond your control, it becomes known that you’re doing it. And so a cloud hangs over someone. And then you–and by the way, usually when you have a situation like that, there are people who are rooting for the prosecution. Which I think is a bad thing.
They’re rooting for the prosecution, not because they have firm belief that criminal activity is taking place. They’re rooting for the prosecution because they don’t like Bill de Blasio. Or they don’t like Andrew Cuomo. Or more relevantly to us, they don’t like Hillary Clinton. Or they don’t like–to this audience–Donald Trump. Right.
And so some of these people, they, you know, and I hate to say– they don’t give a shit if there’s proper evidence or not. They hate the President. They hate the Secretary of State, they hate the Governor, and they just want the prosecutor to deliver us from them. And it doesn’t really matter.
And those people, there’s some people like this. Not here, of course. At the end of the day, when the prosecutor makes a good faith judgment based on the law and the facts, not on politics, that the law wasn’t broken or we can’t prove that the law was broken, then those same people will say, “Oh, we knew it all the time. Preet Bharara, or Robert Mueller, or Jim Comey, or whoever else–the fix was in, they’re wimps, or they have some other nefarious reason for not bringing the case.”
Now, when that happens, right minded people who believe in their own integrity, they get upset about it. And you know what their impulse is? Their impulse is like, no, you’re wrong. Let me explain to you why you’re wrong. That gets you into trouble. That got Jim Comey into trouble. Cause I think Jim Comey, who is my friend, I admire him, I think he tells the truth. He was my boss for a period of time. Lots of people were upset with him. He made mistakes. I think he did. Monumental mistakes.
Jeffrey Toobin: What was the mistake–oh no, no–put aside the whole, you know, the eve of the election thing. Talk about the July, 2016 press conference where he explained why he wasn’t going to prosecute.
Preet Bharara: His impulse came from a good place, and it’s this, what I’m talking about. You decide based on your good judgment and proper considerations that it is not in the interest of justice, it’s not appropriate to charge Hillary Clinton with a crime based on the email issue. And I think he and the others and you know, not even him, other people recommended and then he agreed that that was not, would not be a well-founded prosecution.
But then he hears in his voice–and by the way, I’ve heard that and I feel that way too and lots of people do. And you hear, “well that’s BS, cause you’re just trying to protect her because it’s political and maybe you want an appointment, you want to stay as FBI–all sorts of allegations as to what the motivation is.
And he thinks to himself, that’s not right. And I don’t like these aspersions being cast on my agency. Because I respect and trust the great men and women of the FBI. Or I might think about it that way, about the great men and women of the SDNY.
But as I say in the book–and you learn these lessons from other people’s mistakes–the best practice is to suck it up and say, you might not like it and you’re going to say these terrible things…. Terrible things were said about me. I had these people who loved me when they thought that I was going to prosecute, my office was gonna prosecute certain people. Then when I didn’t, based on nothing other than their political preference, they said I was a schmuck.
Jeffrey Toobin: Is that Indian?
Preet Bharara: Yeah, it’s, it’s, it’s the Punjabi for putz.
Jeffrey Toobin: Yeah. It’s New York, you know.
Preet Bharara: So he spoke, the problem is with speaking, and it’s the temptation to speak, is that then you have a duty to correct, and this principle that you’re now maligning someone and putting out derogatory information about someone who then doesn’t have a trial in which they can, you know, fight the charges.
Jeffrey Toobin: Well, let’s, since time is moving on. Let’s get to Mueller. And let’s talk about the letter, the Barr letter. And talk about both how the Mueller investigation’s conclusion was presented to the world. What did you think of the letter as a, you know, as a vehicle for announcing the end of the investigation? And talk about what Barr said in the letter and whether you think that was appropriate.
Preet Bharara: Yeah. So I’ve heard what you said about it, and I think we have similar views. So the Barr letter was, I didn’t see it coming that way, and I don’t know that Mueller saw it coming.
So remember that, so the Barr letter is 4 pages, after a report of some unknown length. And I think I tweeted the other day, like, I still find it bizarre that we don’t know how long the Mueller report is. In two parts. So one part, you know, addressing collusion slash conspiracy, interference in the 2016 election. And the other addressing obstruction.
With respect to the first part, I don’t have a lot of quibble, or no basis to have a lot of argument with the Barr summary. Basically, it sounds like, Bob Mueller said that we didn’t find that a crime was–evidence that established a crime was committed with respect to anyone on the Trump campaign working with the Russians on the interference in the election.
Maybe there’s some stuff in the report that’s gonna make it sound a little bit more mixed. I think you and I both think that. And it’s not all sort of, you know, roses for people associated with the Trump campaign, but basically it was pretty definitive, if you believe the essence of the summary, and you’d be hard pressed to so mislead the public as to the underlying report on that part that you could get away with the summary that he gave. Right. So…
Jeffrey Toobin: You’re talking about the collusion part?
Preet Bharara: On collusion, right? And that’s sort of a little bit of a dead letter. And not everyone loves that. And people keep trying to parse out this you know, the sentences and saying, well, maybe there was collusion.
You know what, Mueller didn’t find it, and I accept that, cause I think Mueller knows what he’s doing. And I said from the beginning, whatever he finds, I will accept because I trust him. You can disagree, but at some point you have to trust in the person who’s doing it.
On the obstruction side, I think it’s a totally different story. And I did not, I don’t know if you did, I’m curious to know… I did not expect and see coming, the lack of conclusion and determination on the part of Mueller on the obstruction question. Did you see that coming?
Jeffrey Toobin: Not at all. And because of this peculiar way that the letter was written, and the fact that it was resolved in a letter at all, what’s unclear to me is whether Mueller said one of three–three possibilities about obstruction. He said, “I cannot conclude one way or the other whether obstruction of justice took place.”
So. Possibility one: Attorney General Barr, I ask you to resolve it. Possibility two is, I cannot resolve this, but I think it’s for Congress to decide as an impeachment proceeding. That’s another possibility. Or a third possibility is that he just didn’t resolve it and had no view about how anyone else should, you know, resolve that issue.
Presumably if and when we get the full Mueller report, we will see why he came to this peculiar non-conclusion that is Mueller about the obstruction of justice issue.
Preet Bharara: But do you have some theories about that? I have a couple of theories about that.
Jeffrey Toobin: Well, it’s your show.
Preet Bharara: No it’s not. It’s our show. Jeffrey it’s our show.
Jeffrey Toobin: But what’s your theory? What’s your theory?
Preet Bharara: So basically. So I’ve, I looked the letter, and you spend too much time looking at some sentences and you presume they were written with great care and cleverness.
The more I read the letter, the more I think about it, I don’t think that Bob Muller intended to do–I can’t remember which one of the options it was, I think it’s the second option–that Bob Mueller intended to leave it to Bill Barr. I really don’t.
Because if he did, it seems to me, he would have used language in the report from which Barr could have quoted and said, you know, “the special council couldn’t make a determination and thought it was a closed question, and left it to me. The special counsel left it to me.” He didn’t say that.
He wrote, I don’t have it in front of me, but I’ve been reading from it and quoting from it when I’ve done interviews before. It’s something like, you know, “Bob Mueller’s decision not to reach a conclusion leaves it to me.” Which is an interesting, you know, phrasiology. “Leaves it to me, to sort of step in and make a conclusion.” And I don’t think that Mueller intended that. I don’t.
It also may be that Mueller did not make it clear that he was punting to Congress. Because I think it would look peculiar later also, if he had clear language saying, “I think this is a job for the political branches, it’s a political question, it seems reasonable given the closeness of the question that it shouldn’t be someone like me on appointed special counsel to make a blanket statement about whether or not a crime has been committed. That’s something for the political branches to work out.” Which I think is not an unreasonable thing to say.
Jeffrey Toobin: And in another argument for why he, that his argument is plausible to me, why I think he was meant to have delivered this to Congress, is that he was operating under Department of Justice policies that say a sitting president can’t be indicted.
So what would be the point of saying, “he should be indicted”? Because there was no possibility he’s going to be indicted. What is possible is that Congress should take, could take some action in an impeachment inquiry.
Preet Bharara: I agree. And here’s another reason I think that–and I’m curious to know what you think about this–in the ordinary course, if this was an average, if this was just Jeff Toobin. He’s not an ordinary person, but he’s not the president. An extraordinary citizen…
Jeffrey Toobin: Truer words have never been said. I am not. I am not the president, yes.
Preet Bharara: And if my, when I was US Attorney, if my office were examining whether or not you had obstructed justice. And the team came to me and said, “you know what, boss”–and once or twice I got memos like this, it’s very, I don’t know if you ever wrote a memo like this, you probably didn’t, where your team assesses criminality.
And almost every instance in seven and a half years when I asked for such a document, at the end, they say, “so here are the reasons why we think it’s criminal. Here’s they reasons why they might argue otherwise. At the end of the day, we think it’s chargeable.” A couple of times I got memos and I kept turning the pages and looking for the end and there was no recommendation, cause it was such a close question that we had to discuss it.
In those cases, just a couple, where it’s such a close question, my view was that in the criminal justice system that we have, you give the benefit of the doubt to the defendant. If it’s that close, you don’t bring the case. And I think that would apply. I’m guessing that’s the mindset of Bob Mueller also.
So in the ordinary case, if this had been Jeff Toobin as opposed to Donald Trump, you do the assessment, you have, you know, the close question, and you would say like, “given the closeness of the question, there’s nothing for us to do.” He didn’t do that.
And it seems to me the only reason you would not end the inquiry there is, as you say, it’s not over. If it’s Jeff Toobin, it’s done, if it’s the President, it’s not done, because there’s another branch of government that can hold someone accountable, and that’s provided for in the constitution, and it should be their job.
Jeffrey Toobin: Let me ask you now about the substance. Based on the evidence you’ve seen the firing of Comey, the false chronology created on Air Force One, the admissions to Lester Holt and whatnot. Do you think that the President obstructed justice?
Preet Bharara: You know, Jeffrey, I think it’s a very close question. Now look.
Jeffrey Toobin: Who’s hissing at you?
Preet Bharara: You got a book. You, yeah, yeah. I know.
Jeffrey Toobin: Maybe they were at the back of the balcony.
Preet Bharara: Maybe they were in the balcony, you guys didn’t get a book. Now look, this is why we need to see the report. Like I don’t know. And I think the most… Here’s what I’ve been saying for two days. So there’s all this nonsense. I get the idea that this is classified information and grand jury information. It strikes me that the people who were saying those things most vociferously are among the people who didn’t give a hoot about, you know, the Nunez memo and all sorts of other things that they wanted to have disclosed about Hillary Clinton and elsewhere. And it’s all political ploy. It’s all horseshit. Pandering. That’s called pandering.
Jeffrey Toobin: Absolutely.
Preet Bharara: But my thought is that it’s much less likely that classified information and grand jury secrecy information, 6c information, is in the portion of the report that’s on obstruction. Naturally that would be more in the portion of reports about collusion, cause you’re talking about intelligence agencies, that sort of thing. That even if they can’t declassify and disclose all of it, that at a minimum, that should get the obstruction stuff out absolutely as soon as possible so we can figure out what the facts are. And I don’t know why–I know why they’re doing it, but I think it’s unconscionable.
Jeffrey Toobin: You are in a unique position in that you were both a US Attorney and Chief Counsel, someone who did congressional investigations. Given the resolution of the Mueller investigation, how would you advise the Democrats in the House of Representatives? Should they continue to do this investigation?
Should they, what should they do? Or should they pack it in and talk about health care all the time? No, I mean, that’s a legitimate question.
Preet Bharara: Yeah. So to the extent that calls for, you know, political acumen, I don’t know the answer to that question. What I would say is, what you have in this report–in the summary, which it seems to me, that Bill Barr was seeking to be protective of the President and to frame it in a way and imprint on people’s minds a particular, you know, message about the report that may have, you know, lots of terrible things about the President. You know, a spin, if you will, that will outlast and be more permanent than what we ultimately find out about the report.
However, and all these people keep saying, I did the Pod Save America podcast yesterday, and I got asked the question…You can clap for another podcast, right?
Jeffrey Toobin: That’s the demo here.
Preet Bharara: I’m going to tell John, John, and Tommy you guys clapped.
Jeffrey Toobin: It’s a good demo, don’t get me wrong.
Preet Bharara: You know, was Sunday the best day of Trump’s presidency? And I guess there’s an argument for that. But on the other hand, you have in this document the fact that a special counsel, after two years, based on the fact that it’s too close a question to decide, basically said that there is substantial evidence that the sitting President of the United States of America obstructed justice. And that while we are not prepared at this moment to declare that a crime was committed–and this is more extraordinary– this does not exonerate the president.
Almost anticipating the nonsensical thing, like a mantra that Donald Trump says all the time. You know, “I went to Dunkin Donuts, I was exonerated.” Like everything exonerates him. In some ways, if it was a different presidency and we were not in the twilight zone that we’re in now, it should have been one of the worst days of anyone’s time in the presidency. And people are able to spin it in a particular way.
It’s crazy that that is so, and the relevance to your question is, putting politics aside, and spin aside, if you know that there’s a document that contains substantial evidence–maybe not that gets you over the hump to prosecute if you’re a special counsel– but you have, there’s a document that contains substantial persuasive evidence that the sitting President of the United States has obstructed justice, it is kind of incumbent upon you, as officials of the United States government, in a particular branch of government, the Congress, to pursue it and investigate it, whatever the political fallout and consequences are. I don’t see how you don’t do that.
Jeffrey Toobin: Let’s take some questions from the audience. So we’re going to bring up the lights a little bit so we can see you. But Kate and company, you’re gonna have to do the picking cause we can’t really see.
Preet Bharara: Oh there you are.
Jeffrey Toobin: Where. ..
City Arts & Lectures: This question’s from the orchestra in the center.
Jeffrey Toobin: In the center. Okay. Please ask questions.
Preet Bharara: You can ask a question of Jeff too.
Jeffrey Toobin: Don’t give a speech.
Audience Member 1: This is short and sweet. Preet, you had a predecessor as a US Attorney in the Southern District who has gone out of his effin mind. And I wonder if you have anything you would like to tell us about that. Thank you.
Jeffrey Toobin: Oh, I love it when you ask better questions than I do. Good question.
Preet Bharara: I dunno. I don’t know what…
Jeffrey Toobin: For the three people who don’t know, she’s talking about Rudy Giuliani. Preet, what do you think?
Preet Bharara: Is it, this is taped, right?
Jeffrey Toobin: Yes, this is taped.
Preet Bharara: So may I preface this answer with, Rudy Giuliani was a very hard charging US Attorney. When I was nominated to become US Attorney, when I got confirmed, I went around the circuit and as a sign of respect and humility and learning, I had lunch or dinner with every living former US Attorney, because you don’t do that with the dead ones. That was a very cheap joke. And US Attorneys from other districts, cause I thought this is a big job and I would like to know the advice of my predecessors and my elders.
And one of the most generous dinners I had was with Rudy Giuliani. This is, you know, now 10 and a half years ago. Who still loves that place as much as anyone who ever served in that office. And he was always kind and generous to me.
So it pains me somewhat to say the kinds of things–you know, it’s a club in the sense that if you were an alum of the justice department generally, or the US Attorney’s office in the Southern District specifically, that you have a lot of affection and respect for the people who served it. And particularly who served as the head of the office. I did that job a year longer than Rudy did. Seven and a half, compared to six and a half.
But the kinds of things he has said in the last year and a half as lawyer to the President, including accusing really good men and women of the FBI of engaging in–I don’t know if he used the term Gestapo, storm troopers.
Jeffrey Toobin: Storm troopers.
Preet Bharara: Storm troopers, given the origin of that phrase. Saying things on television, that are blatantly false. Claiming that he hasn’t said things that he’s then confronted with on television, that he has said. Misrepresenting the law. Saying, and I’m still trying to find evidence of this, saying most recently, with respect to this past weekend, that it’s an abomination and unlawful to bring an obstruction case against someone if you haven’t also brought a charge of the underlying crime that was being investigated in the first place. I’m sure he did that a lot. Like every US Attorney has done.
I don’t know what’s going on there. And it’s very upsetting to a lot of people who have known him for a long time. I think he served in many ways that office very well. And, you know, it’s easy to sort of make fun, and to say glib things, but I’m feeling a little bit more serious at the moment.
And I think it’s unfortunate, and some of the things he has done and said, he’s never going to be forgiven for it by people who are in that office and used to be in that office and who care about justice. And I think he has, he has lowered himself in a way that it bothers me to have to say.
Jeffrey Toobin: Next question. We are not picking, so you’re gonna have to, whoever–Kate and whoever has the microphone is picking, cause we can’t really see.
City Arts & Lectures: This question’s from the front of the balcony to your right.
Jeffrey Toobin: Somewhere over there.
Audience Member 2: This is a question for both Preet and Jeffrey, and it has to do with the burden of proof for impeachment.
You’ve explained how difficult it is to establish proof beyond a reasonable doubt in a criminal case. But I, for one, was stunned when everything we’ve seen in public on the obstruction of justice charge didn’t amount to a different conclusion. So I wonder if there is law about what it would take, or if there is a standard for burden of proof.
Could Congress take a quantum of evidence that amounts to preponderance or something less than beyond a reasonable doubt and impeach Trump?
Preet Bharara: I think Congress can do whatever it wants, right Jeffrey?
Jeffrey Toobin: You know, the key fact about impeachment, which I have actually written a lot about, is that it is a political process, not a legal process.
And you know, Gerald Ford, when he was in Congress, led a fortunately short-lived attempt to impeach William O. Douglas, Justice of the Supreme Court. And he said, in a famous quote, “an impeachable offense is whatever Congress decides is an impeachable offense.” And that’s sort of a tautology, but it’s also true.
And, you know, it is, and I don’t say this critically of Congress, because it’s a political judgment, you know, there is no formal standard of proof.
And I did a piece for the New Yorker several months ago about impeachment, and I interviewed Nancy Pelosi, where she said — and this was before the Democrats had even retaken the House–is that, you know, we are not going to pursue impeachment unless we believe there is a realistic chance that the Senate will vote to remove the President from office. That is 67 votes in the Senate.
And, you know, the Democrats are haunted and informed by the experience of the Republicans in 1998, who pursued impeachment against Bill Clinton, knowing that there would never be 67 votes in the Senate. And the conventional wisdom, which I think is by and large correct, is that that redounded to the Republican’s detriment and Pelosi’s just not gonna do that. And especially now in light of the way the Mueller report has been characterized by Barr, it’s simply off the table.
And, that may be a good thing, it may be a bad thing. I think the political judgment made by Pelosi, also by Jerry Nadler, now the Chairman of the Judiciary Committee, is that it’s not about the quantum of proof. It’s about the political prospects for success. And you know, the limited attention span, and the limited you know, ability to concentrate on issues of the House of Representatives. They want to talk about preexisting conditions. They want to talk about, you know, health insurance. They don’t want to talk about impeachment. I mean, that’s the political judgment they’re making.
Preet Bharara: You know, I agree. I agree completely. You know, it’s interesting in the prosecutorial context, that’s not political, the judgment you make about whether or not you’re going to charge someone with a crime–it’s a low burden. You know, you can go to the Grand Jury and get an indictment or get a criminal complaint from a magistrate judge based on simply probable cause, which is essentially more likely than not that the person you’ve named committed a particular crime. That’s not so hard, right.
And it seems like one theory about Mueller and his decision or non-decision about obstruction is that he felt he had that much evidence. But no right minded prosecutor doesn’t think about what the ultimate burden of proof is going to be when you have to go to trial, that everyone has a right to under the constitution. And that is proved beyond a reasonable doubt.
So it’s this interesting issue that people think about as prosecutors, the burden to charge is this, the burden to convict as this, but you’re always considering this burden even when you’re only at this phase. And you would never, I think not never, but you would most likely not bring a criminal case against someone if you thought you had just enough to bring the case, you know, probable cause, but you had no chance of conviction. You just happen to know that given the circumstances, no jury will convict. Well, you sort of have that in the Congress.
Remember the impeachment is, as Jeffrey said, is just the charge. And you can go ahead and get that, you know, probable cause, the analog is to the criminal process. What is the usefulness and propriety of getting an impeachment decision if you know for a fact you’re never going to get a conviction in the Senate?
Now I think it’s different. I think there are reasons you would do that. But it’s an interesting thought experiment to think about how those two processes work. The political one and the criminal one.
Jeffrey Toobin: Next question.
City Arts & Lectures: This question is from the front of the orchestra to your left.
Audience Member 3: Thank you. Welcome to San Francisco, the speaker’s district, by the way. Free people’s Republic of California.
The Attorney General’s letter. Does it, in your opinion, rise to the level of foreclosing prosecution, federal prosecution, for some crimes? And if so, what crimes? I mean, is it an order from the attorney general to every US Attorney in the United States that certain people cannot be prosecuted for violations of certain statutes or constitutional provisions?
And if it does rise to that level, what are those crimes and who are those people?
Preet Bharara: I’m not sure if I understand fully your question.
Jeffrey Toobin: You know what, let me try to ask. I hope this is a fair version of the question. I think it’s safe to say that, you know, the Mueller–there’s not going to be an indictment of the President, for anything, because of the policy…
Preet Bharara: And certainly not these things…
Jeffrey Toobin: Not these things. What do–I mean, let’s talk about your former office. The Southern District of New York. Michael Cohen has already pled guilty to a crime of making an illegal campaign contribution in the payments to Stormy Daniels on the eve of the 2016 election, where if you read the charging instrument, you know, Trump himself is at the least an unindicted co-conspirator and probably a fellow conspirator. What do you think the odds are that they will pursue a criminal case against him?
Preet Bharara: While Donald Trump was the President, I think, low to zero.
Jeffrey Toobin: Well, but will they investigate him so that they might charge him after he leaves office?
Preet Bharara: Potentially. I mean, there’s nothing that I understand in the guidance and the guidance from the constitution that says you can’t investigate the heck out of anyone, including the President of the United States, because maybe–for a number of reasons, but one of those is, when you’re investigating a crime, there may have been other people involved in the crime.
Certainly they should investigate the heck out of it because they already have somebody involved who has pled guilty. And maybe there are others. And you know, some of those names are known. Maybe it’s the person at the National Enquirer or someone else.
And in the course of investigating whether or not other people who do not have this beautiful immunity of the OLC opinion in the Justice Department, that says you can’t prosecute a sitting president, you come by evidence against that person who cannot be prosecuted potentially until they left office. So you could have all your ducks in a row, and then wait and see. But I don’t think that would happen until he leaves office.
Jeffrey Toobin: Next question.
City Arts & Lectures: This question’s from the back and center of the balcony.
Jeffrey Toobin: Ooh. Can’t see that at all.
Audience Member 4: Tall bald guy in the back. So, first of all, just I want to take this opportunity to thank you for your years of service Preet, both as US Attorney and previous to that, but also the service you’re doing today and educating us about the law in a way that none of us were.
Preet Bharara: Thank you.
Audience Member 4: I know I’m not supposed to speechify, but I would also hope that you might consider, under a future democratic administration, potential other roles in the American justice system, potentially including Attorney General.
Be that as it may, I want to speak for myself, but maybe many in this room. My faith in our criminal justice system has been sorely tested in the last 72 hours. Not because I don’t like Trump, but because I had hoped from this process..What we had hoped for, was to see a fundamental tenant of our democracy underscored, that no one is above the law.
Jeffrey Toobin: We’re getting to speech area, so what’s the question?
Audience Member 4: So fair enough. The question is, where do we go from here?
For many, myself included, I’ve become increasingly cynical about the possibility of what, you know, ample evidence of wrongdoing that looks like it will go unpunished. That if you are powerful enough and well placed enough and have the ability to pick the Attorney General, you can be above the law. Please dissuade me of that view.
Preet Bharara: Look, the special counsel looked at two things. He looked at collusion slash conspiracy, and he looked at obstruction. If you have any faith in the process, and you have any faith in Bob Mueller, then I think there’s some cause for people to have faith in his conclusions about that.
Now, it’s a little bit tough as we sit here today, because there’s what I estimate to be a multi-hundred page report that’s been summarized in four pages. And so maybe there’s lots of nefarious things that Bob Mueller uncovered and we’re being misled about them by the Bill Barr letter.
But with respect to that stuff, sometimes it’s the case I described in walking away and as people talked about another areas where there’s a lot of frustration and you think that bad conduct happened.
And undoubtedly, by the way, the President engaged in bad conduct by, among other things, inviting when he was at rallies, Russians and others and WikiLeaks to hack and disclose information, all the things he says about the press, you know, helping to lead chants of “lock her up.” That does not necessarily mean that a crime has been clearly committed. Separate and apart from whether or not there’s guidance in the Justice Department that says you can do it or not.
With respect to obstruction, I dunno where my faith should be at the moment. Because I don’t know the reasons why–and Jeffrey has three theories–the reasons why Bob Mueller didn’t make a determination and a strong conclusion about whether or not a crime had been committed. I don’t know what the evidence is on either side of the ledger.
We’re told in the letter that, you know, Mueller laid out all the reasons why it might be obstruction, and some of the reasons why and all the reasons why it might not be. I’d like to see that. And I’d like to see what, if any, action needs to be taken after that. I don’t know what to say beyond that.
You know, Bob Mueller is not a deity. You don’t put him on a pedestal. But, you know, he’s a respectable person who looked really hard. I don’t think he has any fear of making decisions that are tough. I think, you know, to the extent we thought that he was the right person for the job, has a lot of integrity, but he can’t make a particular case. He can’t make a clear statement about criminality. Having looked at everything, I’m prepared to accept that.
Now, are there other things that the President has done that may constitute crimes? Yeah, we may yet see that. You know, Jeffrey didn’t mention all the reports about my own office looking at not just campaign finance violations, but also all sorts of other potential crimes relating to the inaugural committee and the Trump organization. Not to mention what the New York Attorney General’s office is looking at with respect to the Trump Foundation. And maybe some of those things will result in criminal charges that are warranted, but maybe they won’t.
And the last point I’ll make about all this, and I totally understand your point, and this is not something that everyone loves when I say and seems oddly against self interest. Prosecutors are not saviors. They’re not. And if you–don’t clap for that. Wait a minute. They’re still pretty cool, but they’re not saviors. This guy over here.
But no serious you know, public safety problem, culture problem, political problem, whether you’re talking about corruption in the White House, corruption in the state house, or the opioid crisis, or malfeasance on Wall Street, or the gang problem, or guns–none of those things. Prosecutors can serve a role and can have some impact through the blunt instrument of criminal prosecution.
But those problems, and those problems, if you want to describe Trump as a problem, are not solved through prosecution, or the 25th amendment for that matter. They’re solved by lots and lots of good people who care about their country, who are worried about the direction in which their country is going, and try to change the culture of their communities. Try to rise people up. Who participate and vote and, at the ballot box, turn out the terrible people.
Jeffrey Toobin: Okay. I am going to exercise my prerogative as the moderator and ask the last question.
I wrote a profile of you in the New Yorker, which you always make fun of for how long it was. The way I sold it to my editor, Mr. Remnick, was, well, you know, he’s going to run for office. He’s gonna run against Andrew Cuomo. Three people thought that was a good idea.
And unlike most people I have spoken to on subjects like this, you genuinely convinced me, in the course of my reporting in that piece, that you really weren’t going to do that, and true to form you did not run for office. And I don’t think you are going run for office anytime soon. So at the youthful age that you are with your whole future ahead of you…
Preet Bharara: Well, a few years ahead of me.
Jeffrey Toobin: Yeah. Yeah.
Preet Bharara: Thought you were gonna say the…
Jeffrey Toobin: No, but seriously, what do you want to do? You’ve got your podcast, you’ve got CNN, you’ve written a book. But like, what do you want to do?
Preet Bharara: I’m like an aspiring Jeff Toobin.
Jeffrey Toobin: Oh, really?
Preet Bharara: I’m like following in your footsteps,
Jeffrey Toobin: You’d need an OJ case to make your name.
Preet Bharara: Work for me, like I… I care deeply about public service. I did it for 17 years. I cared so much about it that I was prepared to serve in some capacity, during the presidency of Donald Trump, with whom I disagree about, with on most things.
I decided not to do what almost every one of my predecessors has done upon leaving office, go and get a lucrative partnership at a large New York law firm. And left–no one’s gonna feel sorry for me, but you know–leaving millions and millions of dollars on the table. I thought it was important to write a book about what I care about and what is happening in the country and the criminal justice system.
I have this crazy podcast that a lot of people listen to. I teach. And, and this may sound, I don’t mean to sound arrogant by saying this, but I feel like that’s a sort of public service too. It’s not the same as having a role in government, either in elected or appointed office.
But I’m going to play this out as long as I can and see if I can make a contribution to civil discourse and to public understanding of law, and maybe advocate for changes in criminal justice and other places, and support other people’s political careers. And if there comes a time for me to serve in some capacity in the future, I will absolutely consider it.
Jeffrey Toobin: Good. Please join me in thanking Preet Bharara.