Inside Trump’s DOJ Power Play & the Future of Special Counsels

When the Department of Justice has to investigate politically sensitive matters, those investigations are typically handled by outside prosecutors known as Special Counsels: independent investigators given the freedom to unearth the dirtiest dirt against executive branch officials, including the president. Kara speaks with CNN senior legal analyst, former prosecutor, and best-selling author Elie Honig about his latest book, When You Come at the King: Inside DOJ’s Pursuit of the President, from Nixon to Trump. They discuss the history of the DOJ’s independent investigations, the Trump administration’s current (and mostly successful) attempts to weaponize the DOJ, the Supreme Court’s presidential immunity ruling, and recommendations for fixing the system. Want to see Kara and Scott Galloway live during the Pivot Tour November 8th-14th? There are still limited tickets available. Go to PivotTour.com for details. Questions? Comments? Email us at [email protected] or find us on YouTube, Instagram, TikTok, Threads, and Bluesky @onwithkaraswisher. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:01Speaker 00

  This is like not a PG podcast, right Kara?

• 0:02Kara Swisher?

  No.

• 0:03Speaker 00

  You're not a PG person.

• 0:04Kara Swisher?

  I've never been a PG person.

• 0:18Kara Swisher?

  Hi, everyone. From New York Magazine and the Vox Media Podcast Network, this is On with Kara Swisher, and I'm Kara Swisher. The Trump administration has been on an indictment spree recently. So far, there have been cases launched against former FBI Director James Comey, New York Attorney General Letitia James, former National Security Advisor John Bolton, and it's safe to assume there will likely be more down the road. These indictments are coming directly or indirectly from Trump's Attorney General Pam Bondi, who has made it clear that she has President Trump's political enemies in her crosshairs. It's a huge departure from the olden times, way back last year, when investigations that could have been perceived as being politically motivated would have been typically outsourced by the Department of Justice to special counsels, independent investigators, ideally from outside

• 1:02Kara Swisher?

  the government, who had the freedom to unearth the dirtiest dirt in the executive branch without fear or favor. My guest today, CNN Senior Legal Analyst and bestselling author Elie Honig, has written all about them in his latest book, When You Come at the King: Inside DOJ's Pursuit of the President from Nixon to Trump. I wanted to talk to Honig about the special counsel investigations that passed, the impacts they've had, and how they compare to what's happening in the DOJ right now. I also want to hear his thoughts on how to fix the system, indeed, if it is fixable at all. Our expert question comes from a woman whose life was directly impacted by an independent counsel investigation, anti-bullying activist, author, producer, and now podcaster Monica Lewinsky.

• 1:46Kara Swisher?

  Some special counselors have been national heroes, at least for a while. Some have become villains, that's you, Ken Starr, but they've all tried to ensure that no one, not even the man who would like to be king, is above the law. Stay with us.

• 2:10Kara Swisher?

  Support for this show comes from The Guardian and their new show, Stateside, where journalists Kai Wright and Carter Sherman use the entire independent reporting resources of The Guardian to slow down the news and wrestle with the questions we all have about what is actually happening in the world. Join Kai and Carter three times a week as they utilize all the reporting resources The Guardian has across news, international coverage, climate, culture, wellness, and more. And The Guardian's not owned by a billionaire, they fearlessly report the facts without interference. Go to theguardian.com/stateside to learn more and listen wherever you get your podcasts or watch on YouTube. That's theguardian.com/stateside.

• 2:54Speaker 03

  Ripple has been powering modern finance for a decade. We're leading the charge to bridge the gap between existing financial systems and the future of finance. You can have it all: legacy, stability, and digital innovation. Systems that work with your other systems. Because with the right partner, the question isn't crypto or traditional finance. The question is simply, why choose? A new standard of modern finance. It's happening with Ripple. For informational purposes only, availability of products can vary and may be provided by different Ripple entities.

• 3:24Speaker 04

  When it comes to AI, there is what we could do and what we should do. What will we decide? I'm Kimberly Nevela, host of the Pondering AI Podcast from SAS. Every episode, I sit down with innovators, researchers, and technologists to consider the questions that come after the AI breakthroughs. Questions that don't have easy answers but need to be asked. If you're curious or concerned about AI, join me as we challenge assumptions and ponder the issues together. Find Pondering AI wherever you get your podcasts.

• 3:57Kara Swisher?

  Ellie, thanks for coming on, On.

• 4:00Speaker 00

  I'm glad to be with you, Kara, really. I think this book is like, you are the perfect audience for this, someone who gives a crap about this and understands it.

• 4:06Kara Swisher?

  Right.

• 4:07Speaker 00

  And is not a lawyer. I wrote it specifically for non-lawyers.

• 4:10Kara Swisher?

  Yes, I know. It's easy, it's an easy and funny read. You're a very good writer.

• 4:13Speaker 00

  Thank you.

• 4:13Kara Swisher?

  So, in the introduction to your book, When You Come at the King, which is about, I would say, special counsel, special prosecutors.

• 4:20Speaker 00

  Yeah, the names have changed over history, right?

• 4:21Kara Swisher?

  But special prosecutors, people know them as. You write, "A nation reveals much about itself by how it holds accountable its most powerful leaders when it suspects they've done wrong." Based on that maxim, what's the US revealing about itself at the moment?

• 4:34Speaker 00

  We're revealing a major vulnerability. And this ends up being one of the theses of the book itself. You know, what I do in the book is I go back and talk to people who are involved in these cases from Watergate on through the Jack Smith investigation of Donald Trump. That's a 50-year period.

• 4:48Kara Swisher?

  Right.

• 4:49Speaker 00

  And I argue at the end of the book that what's happening right now, what Donald Trump is doing in 2.0, is fundamentally different, like a break in the historical line from anything we've seen up until now. And by the way, I include in that Trump 1.0, which was very different, not great, but different in important ways from what's happening right now. I think this is the question that we are asking ourselves. If we have a president who, A, cannot be held accountable, and B, can use the power of the Justice Department to go after his political enemies, that leaves us in a very dangerous place. And I sort of wind up with a prescription and a plea to future presidents.

• 5:25Kara Swisher?

  You know, that was always the problem for, before, we could do it, right? We could do it, we just didn't, right? The way it was created.

• 5:31Speaker 00

  Yeah, I mean, that's a really important point. You know, you will hear people like me who worked at the Justice Department always talking about the independent DOJ and that. But you know, if you dig down, there's nothing in the Constitution that says, "There shall be a Justice Department and it shall be independent." There's no law that says that. It's just the result of decades, centuries, really, of good government and sound practice norms, all those things that are being trampled now.

• 5:55Kara Swisher?

  Yeah, so let's talk very briefly about the history of this. Like, you take a bunch of, and even going back to A way long time, like Jefferson, right? Like in terms of weaponizing the Justice Department or a version of it.

• 6:08Speaker 00

  So think of it as three sort of historical eras. From everything from Ulysses S. Grant, who was really the first president to appoint any outside prosecutor on a whiskey distillery kickback scheme, up until the end of Watergate. We had no rules. Even Watergate, and I quote some people who were involved in that case, they said, "We were making it up as we went along. We were ad-libbing it." John Dean, who you and I both know, said, "It was all ad-libbed."

• 6:31Kara Swisher?

  Right.

• 6:31Speaker 00

  After Watergate, Congress passed a law that was signed in 78 by Jimmy Carter, which gave us the independent counsel.

• 6:38Kara Swisher?

  That's because of Nixon.

• 6:39Speaker 00

  Because of Nixon.

• 6:40Kara Swisher?

  Talk about with Grant. Grant was the first to do it because a general was taking whiskey kickbacks, essentially, right?

• 6:47Speaker 00

  Right, exactly.

• 6:47Kara Swisher?

  And he was a friend, an ally of Grant.

• 6:50Speaker 00

  Yeah. So basically, a guy who was very close to Grant was taking kickbacks from whiskey distillers in the Missouri region. Grant recognized, because of the political pressure, the media pressure, "Oh crap, I need the appearance at least of an independent outsider." He appoints an outsider. And what I love about the story is you could almost substitute in the name of any president from Grant up through Biden, and it would make sense. It was, I mean, I'll summarize. So basically, the independent prosecutor started indicting low-level people, and he started making cases. But when he got a little too close to the inner circle, Grant tries to shut it down. He tries to have a military tribunal take over. The media starts attacking Grant. Grant starts saying, "I'm being attacked by the media." Grant comes up with this pretext. He fires the prosecutor. A new guy comes in, and he falls short.

• 7:35Speaker 00

  So it's like, you know, echoes of that have been sounding for centuries. Yeah.

• 7:40Kara Swisher?

  Right, when it gets close. Because this was someone who was a close aide, the guy named Babcock.

• 7:43Speaker 00

  Orville Babcock, you got it, yeah. Everyone was a general.

• 7:46Kara Swisher?

  And they all were very corrupt, right? And because they were general because of the Civil War, obviously. So then it was sort of ad hoc going through it, because there's been prosecutors during the sedition trial, for example. They had the returned general relieved him because it was getting too close to power. This happened many times. But Nixon really pushed the boundaries by firing Archibald Cox.

• 8:06Speaker 00

  He did. So, you know, it was actually used to be presidents who appointed these prosecutors. And then, under Nixon, you know, the moment of truth there is when he, so Archibald Cox gets appointed, and Archibald Cox is-

• 8:18Kara Swisher?

  By Nixon.

• 8:19Speaker 00

  By Nixon, yeah. Archibald Cox is this sort of like patrician Harvard Law professor, wore bow ties, everyone sort of reveres the guy. And the Saturday Night Massacre was when they were getting too close and Nixon decides, I have to kneecap this thing. He orders the firing of Cox, the AG, Elliot Richardson, and the deputy AG, William Ruckelhaus, refused, so they resign. And then, Robert Bork comes in and he becomes an important figure later, and he fires Cox. So you end up with the independent counsel and the AG and the deputy AG are all gone. And in the book, one of my favorite moments is I interview Jill Wine-Banks, who was 30 at the time, and Jim Quarles, who was 26 at the time. They were the kids running the prosecution. And now they're, you know, you can do the math on what they are now, how old they are now.

• 9:03Speaker 00

  But they have this amazing moment that I love where they come in the Sunday morning after the firing. They don't know what's happened to them. They, the New York Times reported that they had all been fired, but it was wrong. And they're sitting there on the floor, Jill says, because the office was siphoned off with police tape. And Archie Cox, they let him back in, I guess, to clean out his, can you imagine today?

• 9:22Kara Swisher?

  Yeah.

• 9:22Speaker 00

  You'd never be allowed back in. And he comes in and he says to the young prosecutors, you do your job. Do not give him Nixon what he wants. And in part because of Bork, who is, I think wrongly cast as the villain, because of Bork's pressure, he insists, we need a new prosecutor. Nixon relents, they get Leon Jaworski, and that ultimately leads to the subpoena, the Supreme Court case, and the resignation.

• 9:43Kara Swisher?

  Right. And Jill Wine-Banks is the one who did the interview with Rosemary Woods about the, the dude thing, just for people that don't know, she's amazing. So Watergate led to an overhaul of the system because of the abuses, which were horrifying. I mean, you had the Attorney General resigning, and that was a big moment for Elliot Richardson and William Ruckelhaus, and a big moment for Bork. I think it prevented him from getting to be on this, one of the reasons of not getting on the Supreme Court, because he looked like the villain in it. So Congress passed the Independent Counsel Act in 1978, which laid out a formal process to guide these special prosecutors.

• 10:14Speaker 00

  Right.

• 10:14Kara Swisher?

  The act expired in 1999, but even before then, there was debate around these independent councils. Walk us through the constitutional amendments for and against the special counsel, what you call the natural tension inherent in any special counsel investigation of the powerful, in this case, the president.

• 10:30Speaker 00

  Yeah, and this has been litigated, including up to the Supreme Court with the Independent Counsel Act. So the tension is, on the one hand, you obviously want someone who's independent. That's the whole point of bringing in an outsider. You want someone who can do these cases fairly and without thinking about, am I going to please someone? Am I going to harm someone? So independence, but on the other hand, you want accountability, right? You don't want somebody who you're giving this enormous prosecutorial power to, who can run mad and sort of expand the boundaries with no consequence. There's a famous case from 1988 where they challenged that old law, the constitutionality. Now, the Supreme Court said it is constitutional. The one dissenter was Antonin Scalia. Even Rehnquist said it was, it was okay. The idea is basically you're creating a prosecutor with runaway power,

• 11:14Speaker 00

  who is going to basically have blinders on and, you know, go after this one designated target without any real political accountability. So there's always that tension and we see that to this day. Unfortunately, we didn't get to see the cases play out. One of them was happening in the Trump case, but then he won and everything got dismissed. And we never even got to the appeals court.

• 11:31Kara Swisher?

  These procedures have always been controversial, whether any, any of them that you write about here. Because the partisanship has increased, although during the Biden administration, there was one for Hunter, there was one for Biden himself, there was two for Trump. Has it cheapened it for it to be used so heavily as, as a way to get, it's almost a get out of jail free card by saying, we're going to get this guy and then they never do anything.

• 11:54Speaker 00

  Right. Look, I agree with you. I do think it's been cheapened. I think if you look at the history of the modern regulations, right? So they, they were adopted in 99 when that law was allowed. Both parties agreed this law is done and largely as a result of everyone hated what happened with Ken Starr and Clinton, both sides. So they let the law die. In 99, we passed the regulations, which are still on the books. But here we are, 26 years in, we've only had six appointments under these regulations. One of them was back, the Scooter Libby, we'll talk about this, with Pat Fitzgerald back in 2003, 4, 5. But then we didn't, we didn't have any of them, but from Mueller on, we had five, right? We had Mueller, we had Durham, the investigate, the investigators guy. As you say, we had the Joe Biden investigation, the Hunter Biden investigation and the Trump investigation.

• 12:37Speaker 00

  And I think two of those in particular, I argue in the book, were. Completely inappropriate and to use your phrase, Kara, cheapened this institution. The Durham case was ridiculous. It was a-

• 12:46Kara Swisher?

  This is investigating the investigators, right?

• 12:48Speaker 00

  Looking at it now, it's almost like a brisk warm up for what we're seeing now, right? Like, they brought in this guy to try to pick apart the Mueller investigation. He spends four years and it's a complete disaster. And I think the Hunter Biden special counsel appointment was ridiculous. I interviewed Hunter's lawyer, Abby Lowell, who actually now represents Letitia James and John Bolton. All of this stuff comes full circle. And I think both of those appointments were inappropriate. But as you say, you know, Joe Biden has an interesting record here because he inherits Durham. He couldn't have wanted Durham. He allows, I mean, he didn't explicitly green light it, but he permitted there to be appointments of special counsel to investigate Trump, Biden himself, and Biden's son. So that's historically different. I mean, it's almost the opposite of what we're seeing now from Trump.

• 13:32Kara Swisher?

  Right, right. So let's back up a bit because, speaking of Ken Starr, and this is in this area, we get an expert outside question. Here's yours. It's a two parter. It comes from someone who had extensive experience with Ken Starr in the 1990s.

• 13:44Speaker 00

  Okay.

• 13:46Speaker 05

  Hi, I am Monica Lewinsky.

• 13:48Speaker 00

  Oh, my God.

• 13:48Speaker 05

  First, Ellie, I just want to thank you for being so respectful of me in the chapter on the Starr Report in your book. I really appreciate it. I have a couple of questions, even though I think it's only supposed to be one. So the first one is around, you talk about this in your book, and Ken Starr lied under oath before Congress. He said that they did not ask me to wear a wire on January 16th in the sting operation. And David Kendall very expertly cut to the truth with a lot of documentation that they had. So what consequences should Ken Starr have faced for having lied under oath to Congress?

• 14:30Speaker 05

  Especially given the nature of what he was investigating, that perjury was part of that. Okay, and then my second question is around the printing of the Starr Report. So I knew that the government printing office had sold a bunch of copies. And I was astounded to read in your book that there had been a minimum of 1.5 million copies of the Starr Report sold. And all these publishers were selling something they didn't actually have to pay for. And- Because the Starr report is made up of a lot of the facts were compelled via testimony

• 15:12Speaker 05

  or compelled with immunity, those different things. So not only myself, other people too, but I'm thinking about myself in particular. What kind of safeguards could be put in place for the future for people who kind of intellectual property is being used when it was taken for under oath or legal reasons? So are there any safeguards that could have been put in place or could be put in place for the future so that people can't make money off of a government report like that? Thanks. Bye.

• 15:49Kara Swisher?

  I get a go for you.

• 15:50Speaker 00

  Wow. Oh, my goodness.

• 15:52Kara Swisher?

  I know.

• 15:52Speaker 00

  Did you see my face when she popped on?

• 15:53Kara Swisher?

  Yes, I did. That's why we did it. So talk about the first one Ken Starr lied about. And of course, she had a lot of experience with with special prosecutors.

• 16:02Speaker 00

  Yeah. So first of all, let me just say it really, I'm thrilled to hear Monica Lewinsky say that she's treated fairly and respectfully in this book. I was very cognizant of that. And I think when you look back and Carrie, you and I are about the same age. I mean, the way she was treated by almost all parties, media included, and Clinton's team included, and Starr was outrageous.

• 16:22Kara Swisher?

  Outrageous. She's the only one who acted well, I would say.

• 16:25Speaker 00

  She really is. She's the only, almost the only person who comes out of this thing with her dignity intact. So I really appreciate that. So let me take her first question. So I interviewed for the book both David Kendall, who represented the Clintons. Ken Starr passed away a few years ago, but his essentially number two is this guy named Saul Weisberg. I also interviewed Lanny Brewer, who was working in the White House, you know, defending the Clinton White House at the time. There's a moment when Ken Starr spends all day testifying in front of Congress. They're getting ready to impeach Bill Clinton and the Republicans run the House. So Starr gets a two hour opening and it's all day long and they're, you know, the Republicans are fluffing him up and the Democrats are trying to tear him down. And finally, at the end of the day, Clinton's lawyer, David Kendall, gets a chance to to

• 17:06Speaker 00

  cross examine essentially Ken Starr. And one of the questions Kendall asks is essentially, you tried to get Monica Lewinsky to wear a wire and record the president and Starr stammers around it. You can watch, it's on YouTube. Starr sort of stammers around and denies it. And then Kendall, as Monica correctly refers to. Kendall's got the goods on him. He's got both a three FBI 302, which is a report written by the FBI, like under Star's own team and grand jury testimony from Monica and others where they did try to get Monica to do exactly that. She asks what could the consequences be for Star? I mean, look, if the political winds aligned, he could have been, we just saw Jim Comey charged for lying to Congress in what I think is sort of a bogus case, but it would have been

• 17:51Speaker 00

  up to and including that. I think the long-term consequence for Ken Starr is how poorly he comes off in historical memory. And look, he was controversial at the time, but even his own, and I'll get, this actually goes to Monica's second question, even members of his own team have since raised serious questions about the way he did it. And I think Ken Starr, and I try to give him a fair shake, I do give him, I think, a fair shake in the book, but comes out as the poster child essentially for a runaway independent prosecutor and all the reasons we don't want an independent prosecutor. Right. So that's number one. To Monica's second question, there's a funny moment. I'm trying to explain to people what a big cultural moment to start. And Carrie, you're, you know, you're a tech reporter. It's essentially the first moment when the internet

• 18:33Kara Swisher?

  crashed. Yeah. In 1998, when everyone was downloading it. Yeah.

• 18:37Speaker 00

  Right. I mean, and it's funny.

• 18:38Kara Swisher?

  To get the penis information. I was at the Washington Post.

• 18:41Speaker 00

  Oh, there's, there's more than penis information. I mean,

• 18:42Kara Swisher?

  I know, but that was part of it, the left.

• 18:45Speaker 00

  Well, I'll tell you something about that in a second. But I mean, I sadly, this will make you sad. I, at one point I said Borders sold out of the book, you know, the book and, and my editors said, you have to drop a parenthetical explaining that Borders was a major national. But you do. I

• 18:59Kara Swisher?

  It got run over by the internet. That's what they did.

• 19:01Speaker 00

  Yeah. Um, you know, the report, I mean, to Monica's question, there's really no way that you can sue to get damages for a government document. You know, if you testify in Congress or a grand jury, it's public property, but she raises some really important points. One, these reports have become ridiculous. I mean, Starr started it with his 400-page, you know, Harlequin romance novel. And now you see, and by the way, I quote some of the lawyers and everyone from Trump's team to Biden's team to Hunter Biden's team agrees. I think it was Bob Bauer who represented Joe Biden said, why does every one of these reports have to be a 300-page novella? And he's right. But the second point, so I interviewed Saul Weisenberg, who was the number two guy for Starr, and I got him to admit two things that I thought were really historically interesting.

• 19:44Speaker 00

  One, there was a long dispute over whether Starr's team was leaking. They furiously denied it. I asked Saul straight up, did you guys leak? And he said, oh, hell, yes. And it made me crazy. So that's number one. But number two, I said to him, do you think you went too far with this prurient sexual detail in the report? And at first he was a little, well, you know, look, it was a perjury case, Ellie, you're a prosecutor. It mattered who touched who where. But I was ready. And I said, okay, Saul, but there's two points in the report where you note that after he and Monica had had their interaction, the president masturbated into the Oval Office private sink. Like, what? Did that have anything to do with perjury? Like, nobody, you know, there was no two-way touching there. Anyway, yeah, that may have gone too far. I mean, he said that in the book. He admits, yeah,

• 20:28Speaker 00

  that. And I think it's important that we finally have somebody from Ken Starr's team acknowledging that they went too far. And the damage was certainly to Monica, of course, but also to just the institution of independent counsel. I mean, people still use that. Oh, don't turn it into a Starr report.

• 20:45Kara Swisher?

  Right. And this is why they changed the rules. The first special counsel after the Starr report was Pat Fitzgerald investigating the leak of CIA operative Valerie Plame. Talk about what changed after that.

• 20:55Speaker 00

  So if we go back to 99, so this law that Starr was operating under, it was coming up for renewal every five or 10 years. Fun fact, when Clinton renewed it for the last time in 94, George H. W. Bush, who Clinton had just beaten two years before, advised him, like, just in a sense of presidential collegiality, you don't want to sign this thing. Like, it's a mess. And Clinton felt like he had to. And sure enough, where does it lead? 99 comes around bipartisan, Bob Dole, George Mitchell, everyone agrees, this thing needs to die. They replace it, not with a law, but with a set of regulations written by DOJ, which essentially sort of streamlined the process. But they give the new, as we call it, special counsel, a lot more independence, really. The first one

• 21:35Speaker 00

  of those cases, okay, Valerie Plame was married to a guy named Joe Wilson. Joe Wilson goes to Africa and writes an editorial that basically says, the ...you all have been given for the Iraq war, especially the uranium yellow cake that, you know, that Saddam Hussein is close to getting a nuclear weapon are BS. And then shortly after that, the administration leaks the fact that Joe Wilson's wife, Valerie Plame, was a CIA operative, which is a, it's a crime if you do that intentionally. You can't out an undercover operative. That kicks off an investigation of who leaked this. And George W. Bush was fully, at least publicly, supportive of this. He said, if someone's leaking this, we need to know. I want that person prosecuted. I mean, again, imagine Trump saying that now about his own administration.

• 22:19Speaker 00

  So Jim Comey at the time was the deputy AG, the number two. The AG, John Ashcroft, recused himself. He said, I have a conflict of interest here. Comey takes over and Comey picks Pat Fitzgerald, who, the two of them had grown up at the SDNY. They were both there a few years before I arrived. Both of them were revered legendary prosecutors. And Pat Fitzgerald then spends the next three or four years trying to dig in and figure out who leaked the identity of Valerie Plame. Did they do it with criminal intent? The crazy thing about it is he was very close to charging Karl Rove. I opened the chapter with that. He was razor's edge from charging Karl Rove for lying to the grand jury. He ends up charging Scooter Libby, who was basically Dick Cheney's chief of staff. And there's this whole dramatic trial where Libby gets convicted of lying to the FBI.

• 23:03Speaker 00

  But the only person who actually goes to prison in all this, Scooter Libby ends up, before he can serve his, he gets sentenced to three years, but Bush commutes it. Cheney wanted him to pardon it, but, but Bush refused. And they, that actually led to tension that still exists between the two of them. But then Trump, in his first term, pardons Libby altogether, just because he wanted to, you know, poke people in the eye. The only person who goes to prison through all this is, is a reporter, a New York Times reporter named Judy Miller. She goes to Max Security Prison for 85 days because she refused to give up her sources, one of whom was Scooter Libby, by the way. And I talked to Judy for the book about what it was like in prison and what she felt about the whole experience. We'll be back in a minute.

• 23:54Kara Swisher?

  Support for this show comes from The Guardian. Trying to locate news sources that reliably separate fact from fiction can seem like looking for a needle in a haystack these days. Social media feeds, cable news, and subscription-based news outlets might be able to give you one version of the news, but not in the way that you need. You want news fast, but slow enough to actually absorb the information. Stateside with Kai Wright and Carter Sherman is here to do just that. The podcast tries to slow down the news and wrestle with the questions regarding the world at large at your own pace. Three times a week, hosts Kai Wright and Carter Sherman bring their expertise together to showcase different and engaging perspectives regarding the world today. They will use their collective knowledge to discuss the news, international affairs,

• 24:37Kara Swisher?

  climate, culture, sports, lifestyle, fashion, and wellness. Plus, The Guardian wants to emphasize they're not billionaire-owned, meaning they're free to report the whole picture without interference. Go to theguardian.com/stateside to learn more and listen wherever you get your podcasts, or watch on YouTube starting May 13.

• 24:57Speaker 03

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• 25:28Kara Swisher?

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• 26:07Kara Swisher?

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• 26:35Kara Swisher?

  The most famous investigators in recent history were all tied to Trump in some way. James Comey, Robert Mueller, and Jack Smith. Of course, James Comey was not a special counsel. He was FBI director. In the book, you explain why all three of them ultimately failed at their mission. Explain what each one got wrong and how the fallout actually helped and enabled Donald Trump.

• 26:54Speaker 00

  So Jim Comey, let's start with him.

• 26:56Kara Swisher?

  Right.

• 26:57Speaker 00

  Jim Comey is the perfect example of why we need some rules. Because I get that it's, look, it's an easy thing, Cara, to just go, ah, it's all broken and F it. And we don't need any of these, you know, special counsel rules. But if we look back to 2016, so this is when the Hillary Clinton email server investigation was happening, right? Hillary Clinton had been Secretary of State in the Obama administration. Loretta Lynch was the AG. Now, I think Loretta Lynch, right away, should have appointed special counsel. I mean, you're investigating the person who's about to be the Democratic nominee, has worked in this cabinet. But Lynch doesn't do that. Then Lynch has her tarmac conversation with Bill Clinton. They both happened to be at the Phoenix airport. Clinton gets on Loretta Lynch's plane. They talk probably about nothing. They both say it was about nothing. But Lynch herself said that cast a shadow,

• 27:41Speaker 00

  that's Loretta Lynch's word, over the case. At that point, Loretta Lynch should have recused herself. Sally Yates was the deputy AG, more than competent. Or she should have appointed special counsel. Instead, what Loretta Lynch does is say, I'm not going to remove myself from the case, but I'm going to defer to the FBI. I'm going to do whatever they say. Who's the head of the FBI at the time? Jim Comey. And the guy runs wild. The guy makes it all up as he goes along. Look, he's under both Loretta Lynch and Sally Yates on the DOJ org chart, but he basically ignores them both, does his own thing, undermines them, holds a press conference, two of them, you know, one press conference, one letter, but makes two big announcements right before the 2016 election that Hillary Clinton was wildly reckless and all that. And then, then he reopens the case 11 days before the election. And he has since, Comey has since been.

• 28:26Speaker 00

  Harshly criticized, not just by the Justice Department Inspector General, by AGs, Democrats and Republicans alike. Eric Holder, not in my book, I quote it from a rapport, says basically Comey completely violated the rules and he did everything wrong. And, you know, did that flip the election? I actually dig into this a little in the book. The short answer is we'll never know for sure, but probably. He probably, and look, there's a moment, Carol, that I quote in the book where Hillary is being interviewed by Caitlin Collins on CNN last year, like, you know, a few weeks before the election. And Caitlin asks Hillary Clinton, do you, how do you feel about Kamala Harris's chances? And Hillary's first words were, well, at least she doesn't have Jim Comey waiting to jump out and kneecap her.

• 29:05Kara Swisher?

  Right.

• 29:05Speaker 00

  So that's an important lesson, I think, from Jim Comey. And, you know, again, the charges against him now are a separate thing, but his history is not good.

• 29:12Kara Swisher?

  We'll get to that in a second. And then Mueller.

• 29:13Speaker 00

  So Mueller, look, I think the thing that people remember most about Mueller is that he didn't say his conclusion, right? He said, no, there's no, there's no evidence of a criminal conspiracy with Russia. It doesn't mean people on his team didn't, I mean, they certainly tried, but, you know, no evidence of an actual conspiracy. But then on obstruction of justice, Mueller gave us this whole, like, I can't say, but I would, but you remember this, right? The whole doublespeak. And I talked to several members of Mueller's team who said, basically, look, we support ultimately what he did. We understand, we think he was acting out of principle. But is there a fair argument that maybe he could have done it differently? Sure. One of them said to me something like, did I have daydreams about like going down there and calling a press conference or just say, of course, we say he obstructed justice. Sure. But we didn't ever do it.

• 29:57Speaker 00

  But, you know, another interesting point they made is, do you remember the whole cartoonization of Mueller, right? All the T-shirts and the mugs and the action figures? They hated that. The members on his team said, that was everything that Bob Mueller is not. He is not a self promoter. He did not see himself as some Avenger of, of lefty fantasies. He saw himself as a guy whose job was to do the job. And he said, by the way, it fueled Trump. They said, you know, it fueled Trump's paranoid theories about this guy's out to get me. So there's a lot of interesting sort of reflection back on that now from both sides, again.

• 30:31Kara Swisher?

  You're right that he could and should have explicitly stated his prosecutorial conclusion, even with respect to a sitting president who could not be indicted. He should have done that.

• 30:39Speaker 00

  Yeah, I mean, that was the whole big controversy, right? Because Mueller gives us the whole wishy washy. Now, look, he could not have indicted Trump at the time because Trump was the president. That's longstanding DOJ policy, also subject to an interesting debate, but it was the policy. But what he clearly could have done, and I went back and talked to one of the guys who wrote the regulations, is said, while I cannot indict the president because he's a sitting president under longstanding DOJ policy, I do find that the evidence would be sufficient to support an indictment here. And maybe even say, I recommend that when he's out, there should be an indictment.

• 31:09Kara Swisher?

  Just the way Herr said, I don't.

• 31:10Speaker 00

  Yeah.

• 31:11Kara Swisher?

  He came to a conclusion about Biden's age.

• 31:13Speaker 00

  Herr came to a negative conclusion, right? But, but yeah. But the question is, what if there's a, yes, it should be indicted. But Herr could have, and I, you know, from talking to people around the case.

• 31:22Kara Swisher?

  This is what Biden's documents came.

• 31:23Speaker 00

  If Herr had concluded that Biden had committed a crime, he would have said so. Right? I mean, I have that from the reporting in the book. And I went back to one of the guys, there was eight or nine people on the team who wrote the special counsel regulations. By the way, Chief Justice Roberts was one of those eight or nine people, too. I couldn't get to him. But I talked to another person who wrote it, and he said, of course, we meant that you had to say so. I mean, the regulations actually say.

• 31:45Kara Swisher?

  Right.

• 31:45Speaker 00

  The special counsel must state his prosecution or declination decisions.

• 31:49Kara Swisher?

  Or someone like Barr comes in and says so, says what it is.

• 31:52Speaker 00

  Well, that's what happened, right? Mueller, Mueller left a vacuum and Barr filled it.

• 31:55Kara Swisher?

  Right.

• 31:55Speaker 00

  And then Jack Smith looked at the fundamental problem for Jack Smith. The first line of the Jack Smith chapter is Jack Smith never had a chance. Because I think you and I have talked about this, Karen. Merrick Garland waited two years before he appointed Jack Smith. And when Jack Smith gets appointed in November of 22, I said at the time, I said on CNN, I wrote in my last book, there's no physical way Jack Smith is going to be able to get these cases investigated, charged, get through motions, which is going to include immunity in the Supreme Court, and get these cases tried before November 2024. And sure enough, that's how it played out.

• 32:26Kara Swisher?

  That's exactly what played out. Now, very briefly, in a way, the investigations of all these three were defined by the AGs. They were paired, as you mentioned, Loretta Lynch for Comey, also Jeff Sessions, Rod. Rosenstein and then Bill Barr for Mueller and then Merrick Garland for Smith. Talk very briefly about the influence, lack of influence of the AG and the impact of the, on the investigation.

• 32:47Speaker 00

  You know, it's interesting because different AGs have taken different approaches. Some AGs have said, I want nothing to do with this. Comey, for example, with Fitzgerald, I mean, a member of Fitzgerald's team said, we never heard anything from the guy. I mean, and that's, I would argue, that's how it should be. The point is, I'm empowering, I AG, I'm empowering you, special counsel. You, I mean, there's still some reporting, but you do your own thing.

• 33:07Kara Swisher?

  In the history, they have taken apart a special counsel's aversions.

• 33:10Speaker 00

  Exactly. Um, Rod Rosenstein, who I talked to for the book and his, and the Mueller team confirmed this, they would meet every two weeks and basically brief him on the big points of the investigation. They felt like, you know, he had to deal with the White House, he had to deal with Congress and they couldn't have him totally blind to all that was happening. Garland was really more of the Comey model of very hands off. He let Jack Smith run almost completely on his own. So, you know, I think.

• 33:34Kara Swisher?

  What about Bill Barr? Bill Barr?

• 33:36Speaker 00

  Bill Barr, you know, Bill Barr, when he came in, Mueller was already in place. But what Bill Barr did is he, and this is the subject really of my first book here.

• 33:43Kara Swisher?

  His summary.

• 33:43Speaker 00

  Yeah, he completely distorted Mueller's report. By the time Mueller's report comes out, Bill Barr's in. And Bill Barr, it's outrageous. I mean, you know, members of Mueller's team completely agree. First, you remember, a month passed. So Barr gets the Mueller report, but we don't see it for a month. In the meantime, Barr issues this four page letter where he completely distorts the findings, completely, you know, defends Trump and then has a press conference about it, how Trump did nothing wrong. And then a month later, the report comes out and we're all like, holy crap. But by then, like, public opinion had already sort of calcified around it. So that's Bill Barr's.

• 34:17Kara Swisher?

  Bill Barr took the bull by the horns. Merrick Garland did not.

• 34:21Speaker 00

  Yeah.

• 34:21Kara Swisher?

  Right?

• 34:21Speaker 00

  I, I think about Merrick Garland took too long. Yeah. I mean, I think, I think people say, well, what should Merrick Garland have done? I say, day one or day 10 of being in office in early 2021, obviously you were going to need a special counsel. January 6th has already happened. He didn't know about classified documents yet, in fairness, that didn't happen till later. But of course you were going to need to do a criminal investigation of Jan 6th. And of course it was going to be a conflict. This is the guy who Biden just beat and was probably going to run again. So like, but, but Garland did, I theorize in the book, he just didn't want that fight. He was hoping it would slide away the same way Mueller slid away. He'd never have to wrestle with that messy issue, but it didn't end up happening and he realized at a certain point. He had to act, but it was too late.

• 35:01Kara Swisher?

  So now, Smith, of course, is under scrutiny by Trump. He recently said it was ludicrous to say that his investigation was political. You said it was clearly political based in part of what he was put in place and the speed at which he tried to finish the investigation. You write that Smith was disingenuous in his attempts to act like he wasn't clearly trying to get to trial before the election. Instead, he should have been forthcoming about his attempts to get the case done before election. What would that have looked like? And why do you think that would have made a difference? Maybe it wouldn't have, right?

• 35:27Speaker 00

  Right. So, look, to be clear, look, Jack Smith is now under criminal investigation. As much as I've been critical of some of Jack Smith's prosecutorial tactics, there is zero evidence that Jack Smith did anything criminal. And I think the investigation of him now is outrageous. Now, I am critical of Jack Smith because, of course, he was thinking about and trying to artificially accelerate the case before the 2024 election. Now, I want to make a distinction. I'm not saying he's partisan. I'm not saying he was trying to help or hurt the Democrats or Republicans. I'm saying it was political, though. If you're a prosecutor and you're saying, "I want to, basically, do things completely different than how a normal case would be done in order to rush this case," that is inherently political. And I think, Karen, you tell me what you think, but like, anyone who witnessed the

• 36:09Speaker 00

  way Jack Smith was handling that case has to conclude he was aware of the election and trying to rush. But he tried to play this whole Boy Scout of, "Oh, no, no, I'm not." You know, I mean, he asked for the case to be tried five months after the indictment. The average case in that district takes two years to trial. A case with 13 million documents, it would have been physically impossible. There's a million other examples, but...

• 36:29Kara Swisher?

  Right, right. Now, he was one of only three who actually brought indictments, of those three we just mentioned, both against Trump for his handling of the classified documents, as well as for attempts to influence the outcome of the 2020 election. In July 2024, Judge Eileen Cannon, who has got a sort of a mess, well, she doesn't seem very smart, made history, ruling the entire special counsel regulatory regime was unconstitutional. She took a big bite there. She based her argument on Justin Antonin Scalia's great dissent from the, you mentioned, the 1988 Supreme Court decision, Morrison v. Olson. Talk about the dissent and explain where we are now in terms of the constitutionality of special counsels.

• 37:09Speaker 00

  Where we are now is nobody knows because, I mean, Cannon, as you say, took a big swing. She said this whole thing is unconstitutional because you can't have someone exercising that kind of prosecutorial power unless they're nominated by the president and confirmed by the Senate. And she quoted at length the Scalia dissent that we talked about before. And by the way, a lot of people who've been investigated by special counsel have made that same argument and lost. Trump made it in the Mueller case and lost. Hunter Biden made it and lost. Cannon becomes the first judge ever to say, actually, it is unconstitutional. What was going to happen was that would have been appealed to the Court of Appeals and almost certainly to the Supreme Court, and we would have got an answer. Instead, while the case was pending in the Court of Appeals, before they ruled, Trump wins, everything gets dismissed and thrown out. And so

• 37:53Kara Swisher?

  It never gets brought

• 37:54Speaker 00

  We don't know. Like, the only way we're ever going to find out is if there is a next, the next time someone will challenge it again.

• 38:00Kara Swisher?

  Right. And Cannon is thought to be a Trump acolyte in that she did it on purpose to delay things, correct? Although she may have had a point here, right? We should get it up to the Supreme Court.

• 38:10Speaker 00

  Yeah. I mean, Cannon was very favorable for Trump at almost every turn. And it is an issue that obviously needs to be resolved by the Supreme Court, but we got, we got cut off midstream.

• 38:20Kara Swisher?

  All right. So now we're in Trump 2.0. It's not hard to see what's coming at the king means to current Attorney General Pam Bondi. She's launched this weaponization working group, but the Department of Justice to go after officials who allegedly weaponized the legal system against President Trump, whom she works for and not the American people, obviously. Here she is speaking to Sean Hannity on Fox a few weeks ago.

• 38:40Speaker 06

  Whether you're a former FBI director, whether you're a former head of an intel community, whether you are a current state or local elected official, whether you're a billionaire funding organizations to try to keep Donald Trump out of office, everything is on the table. We will investigate you and we will end the weaponization.

• 39:01Kara Swisher?

  She's so thirsty. Former, you don't have to say that. Former FBI Director James Comey, New York Attorney General Letitia James, former Trump National Security Advisor John Bolton have all been indicted. We're likely to see more. It seems clear that they were ordered by Trump. He posted what he seems to be a private message to Bondi on Truth Social, although I think they leaked it on purpose, calling for her to go after Comey, James, California Senator Adam Schiff. What do you make of these indictments and Bondi's statement that everything is on the table? And I know Bolton's indictment is different from the others, more serious. But talk about those ones that are pending right now.

• 39:36Speaker 00

  So what Pam Bondi is doing now is completely hypocritical and outrageous. I want to start with that and completely different. Look, my first book was about Bill Barr. I mean, Bill Barr looks quaint compared to Pam Bondi. Two things. One, anything that might impact the administration negatively gets killed in the crib. I mean, look at the Signal scandal, right? You remember this, you know, with all those guys discussing a military attack. Not only did she refuse to even open an investigation when precedent was, of course, you at least investigate. Three days in, she says, nothing to see here, no crime, and you should all be cheering about the military strike. So that was, to me, was the tell. On the other hand, the irony, I guess, of calling this the Weaponization Working Group when you're just over weaponizing it.

• 40:20Speaker 00

  So I, look, I have been publicly critical in the book of Jim Comey and elsewhere. And I've been publicly critical of Letitia James. I thought her civil lawsuit against Trump was outrageous. It ended up getting largely vacated by the liberal Court of Appeals.

• 40:34Kara Swisher?

  The financials, just the financials, not the conviction itself.

• 40:37Speaker 00

  Yeah, exactly. The prosecutions of Letitia James and Jim Comey by the Justice Department are absolutely retributive. They're absolutely weaponization. They're completely inappropriate. And I think that one of two things is going to happen in both of those cases. One, the judges, there's two different judges, might well throw out these cases as vindictive or malicious prosecution. If they can show this is being done for political reasons. Now, you can normally never show that because, A, prosecutors don't do that crap, but B, because you don't put it in writing the way Trump has. So don't be surprised if, at some point in the next Six weeks or so, one or both of those cases gets thrown out by a judge. I think that would be.

• 41:16Kara Swisher?

  And then what?

• 41:16Speaker 00

  If the case gets thrown out.

• 41:18Kara Swisher?

  Yeah.

• 41:18Speaker 00

  Then then DOJ will be able to appeal that dismissal, but I don't think they're going to succeed. And then if the case gets thrown out, that's that's it. You know, Jim Comey and Letitia James, I I think have both done really, you know, bad, dangerous things in their careers as prosecutors or law enforcement agents. But that doesn't mean it's okay to charge. And this is my question. I've had this discussion on air with people who say, well, but but Trump is just doing back to people what was done to him. But a six year old could understand two wrongs don't make a right. And where does it end? What does the next person do? What is 48 do now?

• 41:51Kara Swisher?

  Right, right. And he's much more explicit in his, and of course, which is why they'll get off. So what about Bolton?

• 41:57Speaker 00

  So Bolton, I do see as different. And you know, this is part of the problem, Kara, where when you have an enemies list, if any of them get indicted, we're not going to know is this one legit or not, right? And that's Trump's fault. But the Bolton indictment does seem real. I mean, look, the the reporting is the wide reporting is that case either initiated or escalated during the Biden administration. So that's important to know. This wasn't like they came in and Trump came in and said, let's do something on Bolton. I'm sure I'm sure Trump was delighted, but it doesn't mean he started it. The allegations there are very serious. I mean, he was writing up over a thousand pages of specific notes of stuff he was learning from the highest levels of sensitivity as the NSA, as the National Security Advisor, emailing them, and Kara, you love this, over AOL. You make fun of me for having a Yahoo account. AOL, at least I'm above Yahoo.

• 42:42Kara Swisher?

  I stand by that. I think you should be indicted for that. I think you should be prosecuted by Cam Bondi and Lindsey Halligan.

• 42:49Speaker 00

  I'll plead guilty to that immediately.

• 42:50Kara Swisher?

  If they, either of them knew how to turn on a computer. Go ahead.

• 42:53Speaker 00

  So he's AOLing these this incredibly sensitive information to two family members. The reporting, I think, is his wife and his daughter, all for use in his in his stupid memoir. And but, you know, these are attack plans. These are missile launches.

• 43:07Kara Swisher?

  Yeah.

• 43:07Speaker 00

  And and then the other thing that's really bad is. At one point, it got hacked. His AOL got hacked by Iran. I mean, that couldn't have been that hard. And then his team, according to the indictment, his team reports the hack to the FBI, but leaves out the fact that he was using that email account to send classified stuff to outsiders. Now, his team contests all of this. Abby Lowell, by the way, Bolton's lawyer Abby Lowell speaks to me for the book about Hunter Biden. Abby also represents Letitia James and John Bolton and Lisa Cook, the Fed governor. This guy's like the busiest lawyer on the planet.

• 43:41Kara Swisher?

  He is. He's a character, too.

• 43:42Speaker 00

  Yeah, he is.

• 43:43Kara Swisher?

  So, last week, then, President Trump publicly gave out another list of people he'd like to see prosecuted, including a former special counsel, Jack Smith, who we just discussed, who is investigating January 6th and the classified documents. Andrew Wiseman, a lead prosecutor for the investigation of the 2016 Trump campaign's potential ties to Russia. President Biden's Deputy Attorney General Lisa Monaco, and Senator Adam Schiff, who had pushed for Trump's impeachment in the House. It's obviously highly unusual for a sitting president to publicly call for retribution like this. But how do these very clear calls for prosecution affect the actual cases? And who else do you think could be next on the list? And who wants to be a special counsel if this is the case, unless you're a complete idiot like Lindsey Halligan?

• 44:23Speaker 00

  Right. All retributive, by the way. Like, zero basis to think any of these people that you just listed committed a crime. Important to know, by the way, this is another argument for why we need special counsel. They're not using special counsel. They're using whoever the hell they want and calling them weapon as it. They're using Lindsey Halligan and Ed Martin. And it's, there's no rules around it.

• 44:41Kara Swisher?

  Yeah. Please explain who Ed Martin is, because he's really...

• 44:43Speaker 00

  Oh, gosh. Ed Martin is this guy who had never been a prosecutor. He was this, you know, over-the-top election denier, 2020 election denier, and just very aggressive Trump supporter. Trump tried to put him in as a high-ranking DOJ official. Even Republicans in the Senate would not confirm him. So now they have him as this roving weaponization guy who's sort of pushing a lot of these cases. A complete charlatan, really. So now you have these cases. Now, what can be done about them? The reality is, by the way, I should tell you, I was speaking on the phone with a lawyer for one of these people that you just mentioned. And I said, he can't charge this, your client. Like, there's no... And this person goes, of course he's going to. What are you nuts? I said, but on what? He goes, who cares? He's gonna, he's already done it. He's already done it with James and Comey.

• 45:29Speaker 00

  And so maybe, but the sad, the reality is people say, can't this be shut down? There's no way to go to a court and say, this judge orders Pam Bondi to knock it off, like all of it.

• 45:41Kara Swisher?

  Yeah.

• 45:41Speaker 00

  It's gonna have to be case by case. But as we just discussed, Kara, all these people are gonna have vindictive or selective prosecution. And I actually want to see what happens if there's a string of three, four, five, whatever.

• 45:53Kara Swisher?

  Losses.

• 45:53Speaker 00

  Cases that are rejected, either by judges or juries for exactly these reasons. But it's gonna have to be case by case. They're all gonna have to duke it out.

• 45:59Kara Swisher?

  And they have to pay money and they've got to spend time and they have to.

• 46:02Speaker 00

  Tons of money. Yep, yep.

• 46:03Kara Swisher?

  So we've seen some, many prosecutors who are very good at their jobs are horrified over this. They've resigned. And also hundreds of DOJ employees have also been fired, including agents who were part of the investigation into Trump's role in the January 6th attack. More than 280 former DOJ officials recently signed a letter saying, we believe it's our duty to sound the alarm about the administration's degradation of DOJ's vital work. And it's assault on public servants who do it. Do you expect public pushback from these possible more, even more resignations at this point? Do rank and file prosecutors have a responsibility to say, this isn't what I signed up for? What happens here?

• 46:39Speaker 00

  Yes, I applaud the people who have resigned. I think they've done the right thing and the principled thing. You know, I'm always a little hesitant to say everyone should resign because it's hard. You know, you have, people have kids and families and, and all that. Although if you leave DOJ, you're probably gonna get paid way more at a firm. But let me put that aside. Yes, they've done the right thing. Yes, this should be a bright red flag. The fact that we've seen not just one or two are smattering, but dozens, hundreds. If you count the firings of people who've resigned for good reasons or been fired for bogus reasons out of principled objection. I mean, what is happening goes against every ideal, the reason you take the oath is to be a fair and impartial prosecutor.

• 47:16Speaker 00

  So yes, I applaud them for that. Will it continue? I'm sure it will. I'm sure that if someone gets in order to indict Jack Smith and people look at that case and decide it's BS. Yes, you will see more resignations and people are coming forward slowly that, you know, there's. There was a guy on 60 Minutes just the other night who was one of the people who objected to one of these prosecutions. I do fear though Kara, that it's becoming just background noise. That it's now no longer all that sensational to see somebody coming out and say, here's why I resigned. I mean, we've seen it.

• 47:45Kara Swisher?

  It's no Archibald Cox, right?

• 47:46Speaker 00

  Right, right, exactly.

• 47:47Kara Swisher?

  Or Elliot Richardson.

• 47:48Speaker 00

  Exactly. And, you know, these people have made their points and they're well received and I applaud them, but I don't know that they're, it's not their fault, but I don't know that the needle's being moved. Look, there are a lot of people, let's keep in mind Kara, a lot of people think this is great, what Trump's doing. A lot of people feel, with some justification, they overstated, but was, Trump was targeted in, by some of these cases. The Alvin Bragg case, I think was ridiculous. Letitia James lawsuit was ridiculous. But to say that this is an appropriate response, leads us, leads us nowhere. Leads us to descending chaos.

• 48:20Kara Swisher?

  It's an over response. I mean, which of the cases against Trump did you, you think wasn't? Was the documents case, correct? Is that?

• 48:26Speaker 00

  I, I thought Trump should have been indicted federally for the documents case and federally for January 6th, broadly speaking, you know, trying to steal the 2020 election. That's it. And I think it should have been done way earlier, like right away, as we discussed earlier. Merrick Garland should have had someone on that from day one. I think the state cases were all unnecessary pylons, overkill, overdone, we oddly constructed. And I think they were, look, it's, it's dangerous, I think, when you have elected state level AGs and DAs from 90% blue or red areas, running for office, saying, vote for, think about it, just flip the tables. Let's say someone was running for AG in Massachusetts and they said, a Republican, vote for me and I promise you, I will nail Elizabeth Warren. I don't know how, I'm gonna dig through her financials, I'm gonna find something on her. That's what Letitia James did.

• 49:11Kara Swisher?

  Well, like you said, if I have $30 million, I can find something on any of those.

• 49:15Speaker 00

  Someone said, yeah, I love that. Some witness said that directly to a special counsel in front of a jury and said, you give me $30 million, I'll find something on you, sir. I love that line, yeah.

• 49:22Kara Swisher?

  Right, which is true, which is absolutely true. And people are worried about the weaponization, but Trump takes it, of course, to another level.

• 49:27Speaker 00

  And none, none of that, that doesn't justify what he's doing now. It doesn't justify going on this prosecution binge of everyone who's ever upset you.

• 49:34Kara Swisher?

  Well, that's the hallmark.

• 49:53Speaker 07

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• 52:11Kara Swisher?

  The final chapter, as you noted, you lay out seven proposed reforms, including creating a new semi-permanent special counsel position within the DOJ. Talk through them each briefly, each of them, and what's the biggest challenge in actually implementing them? If there's, because there's no cooperation here, except everyone's tired of this lawfare, I guess that's the term they use.

• 52:30Speaker 00

  There is no perfect system here, right? I don't purport, someone said, oh, his system has certain flaws. Of course, like, we've been trying to do this for hundreds of years. But I think there's ways we can improve what we have now. And the core of it is, we need to create a semi-permanent, within the Justice Department, special counsel's office that has a permanent staff support, that kind of thing, that has a multi-pronged mission, that it's not just you, go get the president, that's it, one on one, you know, you take away that sort of heat-seeking missile element of it. Ideally, Congress would pass a law saying, this job is created, it needs to be presidentially nominated, Senate confirmed, that gives it that political legitimacy and accountability we were talking about before, that has been a problem over the years, that has a set number of terms, so five years, 10 years, we have some examples of that, FBI director,

• 53:14Speaker 00

  although Trump now fires that will, but, so the set number of years overlaps presidencies, it's not just you're serving co-terminus with the president. I think the person needs to be given higher levels of protection against firing, you can set the level as high as you want. I think we need to weed out people who are political partisans from serving on that team. There have been examples of people who have political leanings outside of work, but we can, you know, why would we need someone who's politically partisan when there's hundreds of people who are not, who can do this? So, you know, if you think about it, it's sort of like the way we have inspectors general, who have this independent room to operate within the different departments, but with prosecutorial authority and with meaningful political accountability.

• 53:57Kara Swisher?

  But not like Internal Affairs in a police department, because those are usually widely hated, right? Aren't they?

• 54:03Speaker 00

  Yeah, I mean, I mean, you know, these people are not beloved either, right? These special counsel, sometimes you have to do jobs that people don't love.

• 54:09Kara Swisher?

  And you noted that no one ever comes out well from a special counsel job.

• 54:13Speaker 00

  Right, exactly. I mean, very few people, as someone, I think it's Rod Rosenstein says something like, everyone goes into these cases with sterling reputations, nobody comes out that way. Because, look, you're going into a mud fight. I mean, no matter what, right? No one's ever going to just roll over and say, yeah, yeah, let me take a guilty plea here. It's very difficult, but I think the best we can do is to insulate this person, to give him or her free rein to do what he needs to do, but with some level of accountability to the political branches of government.

• 54:40Kara Swisher?

  Right. So you also highlight that despite Democrats' calls to end the DOJ policy against prosecuting a sitting president, they didn't make any moves during the Biden administration to change laws. Now there's room court immunity ruling, so that's done. If Democrats were to get control of the White House and Congress again, should they attempt to prosecute crimes committed by the Trump administration? There's a whole list of them. Pam Bonny would be on the top of that list, I would imagine. Going back to the first question, what we do to ensure how we can still hold leaders accountable when we suspect they've done wrong. And I'm sure there's plenty of emails and communications on all this that will be discovered.

• 55:16Speaker 00

  It's a great question that I've actually not been asked yet. So should the next administration be looking at this current administration? My answer is, yes, there should be scrutiny, but it needs to be done very carefully. We can't have a free for all, like we had on Trump last time with state prosecutors throwing in RICO charges and Alvin Bragg constructing this Frankenstein monster. What I would like to see done is appointment of a special counsel who takes a very careful look at the most obvious potentially criminal conduct of this administration, looks at, you know, you need a person who has that level of credibility who can do this in a way that's believable. You probably need a Republican to do it. And somebody like, not Mueller now, but Mueller in his heyday, and is very discerning about what's worth charging, what's worth having this fight, and what's not. And, you know,

• 56:01Speaker 00

  it's important to know, and I say this all the time, just the fact that someone committed a crime, it doesn't mean now it must be prosecuted. You have to bring your prosecutorial discretion into play. And so is this going to cause more mayhem, more political, you know, chaos? Or is this necessary? Those are very difficult decisions.

• 56:17Kara Swisher?

  Where would you point? I'd point to crypto, but go ahead. Where would you point?

• 56:19Speaker 00

  For the most obvious examples of criminality? Gosh.

• 56:24Speaker 00

  Yeah, I mean, I would, I'm trying to think of things that have been done in this administration. I mean, look, I certainly have questions about the Tom Homan $50,000 in a bag.

• 56:32Kara Swisher?

  Yeah, and he's small ball, right? He's stupid.

• 56:35Speaker 00

  Yeah, he's small ball. Um, I, I don't know. It's hard to say, you know, what, there's a lot of things I think Trump has done in this administration that I object to and think are corrupt or problematic. I'm not sure, I'm not sure I can point to something and say that right there is a crime, but you know, we don't know everything.

• 56:49Kara Swisher?

  I'm going with crypto. That's what I'm going.

• 56:51Speaker 00

  Crypto, okay.

• 56:51Kara Swisher?

  Crypto, there's so much there.

• 56:53Speaker 00

  Yeah, it could be. There's, there's, right, people have said there's, there's elements of bribery or kickbacks or whatever, but one of the bigger, big points that I make in the book is the rules are really important. We can't just sort of be glib about the rules. But the people ultimately matter more. We need people, a lot of this is just based on good faith and, and acting in, in compliance with our principles and sort of doing the right thing and like these cliche sounding things, but they matter. And, and I show in the book throughout history, we have people who've done that and we have people who have not done that.

• 57:21Kara Swisher?

  And some of them have lost and some have won. That's the problem.

• 57:23Speaker 00

  Exactly.

• 57:24Kara Swisher?

  Um, we didn't talk about other things, but if you look at all the various cases, whether they're the colleges suing Trump or the Epstein thing, there's so many different legal cases going on, or the firing of government employees, the illegality or Doze. Which to you sticks out? Which one of the ones do you focus on that you think is going to be the most important things to focus on going forward?

• 57:45Speaker 00

  So number one is what we already talked about, the political weaponization of prosecution. But, but let me move beyond that. I think the targeting of private, largely private entities for exercising First Amendment speech, the targeting of the universities, of law firms, to an extent of media companies. And that comes both through the executive orders saying, we're going to strip your funding and all this, and also through the approval of mergers that has to happen, right? And I think what we're seeing is, is a steady but unmistakable effort to silence dissent. I mean, look, if you look at the Harvard case, it actually says, one of the things that we order you to do with a letter says, you have to go out and hire an independent auditor who has to audit the ideological views of your entire student body and faculty.

• 58:30Kara Swisher?

  Yes.

• 58:31Speaker 00

  For correctness or whatever. I mean.

• 58:33Kara Swisher?

  Seems problematic under the Constitution.

• 58:35Speaker 00

  This is nuts. And I will say. Every law firm and college that has sued, that has stood up and refused to settle and sued, has won. Now, I understand these are largely private entities. Some of them are making bottom line, it's cheaper to pay $10 million to his charity or his library or whatever.

• 58:53Kara Swisher?

  Right, like CBS or whoever.

• 58:54Speaker 00

  Yeah, than to fight it in court. But, but I really applaud, let me focus especially on the colleges and law firms. I, I really applaud those who've stood up and fought because, you know, I, I did a thing, I, I did a, a bar conference and somebody said, yeah, but these are private profit driven entities, these law firms. And if they make, but I said, yeah, but we as lawyers are not making widgets here. We're not just factories. We, we are a profession that has a code of conduct and ethics. And if, if you're not willing, and look, a lot of law firms have sold out. A lot of law firms settled to, I believe, what will be their long-term shame. And those who've stood up, maybe they've lost clients, maybe their bottom line has suffered, but they've done the right thing. So to me, that's, that's, that's other than the prosecutions, the most important frontier.

• 59:36Kara Swisher?

  Um, very last question. Do you think if the Democrats get, as I said, get empowered, Trump will be the subject, another round of what probably should have happened quicker? And do you think that he is vulnerable? Or is he too old? Is it too late? Is he, this is assuming the Democrats get enough power to do so.

• 59:57Speaker 00

  I, I think the ship has sailed on a prosecution of Donald Trump for the reasons you say. I mean, look, let's, let's see, it's, it'll be 2029 when he leaves office. He'll be 83 years old. The first round of investigations and prosecutions essentially failed. I mean, and, and look, there was a reason I was a critic of this at the time. I, I don't have any particular love or hate for the guy. I really, I'm just, I'm outside the arena. I call it from the outside. And a lot of people were cheerleading those Trump prosecutions and making excuses for prosecutorial conduct that they knew better than, that, that they as prosecutors would have never done. And I refuse to do that. And, but, and it pissed off a lot of liberals who just wanted to get out the pom poms. But the reason for that was, A, it was just, it was just some, some, not all, but some of that was wrong. B, it would backfire. And of course it backfired. It helped propel him politically. I think

• 1:00:41Speaker 00

  that's, that's undeniable. Some of these cases have failed. And I think now if we fast forward to 29, What prosecutor is going to want to go and do this again? There's not going to be any political will or support for this. I doubt that even if, name your person, let's pick, who's your Democrat of the, you know, Gavin Newsom wins or whoever, I doubt that he's going to want that. I doubt that his AG is going to want that. It's just going to be, the ship has sailed, but I think there's important historical lessons, but I certainly would not hold my breath waiting for a next United States v. Donald Trump indictment.

• 1:01:10Kara Swisher?

  Even if what's happening right now is absolutely legally corrupt at the Justice Department.

• 1:01:14Speaker 00

  I think that, I think so. I think unless he does something like January 6th or the classified documents, which just hits you over the head and cannot be ignored.

• 1:01:23Kara Swisher?

  But the legal corruption at the Justice Department has to be shifted.

• 1:01:28Speaker 00

  The crazy thing is, I don't know that that's actually criminal to say, we're going to overreach.

• 1:01:32Kara Swisher?

  So reforms and congressional changes to the rules, correct?

• 1:01:36Speaker 00

  I do hope that the weaponization of DOJ that's happening right now causes serious backlash, political backlash, so that whoever comes in next says, similar to what happened after Watergate, right? We need a whole new regime, we need to rethink this, we need laws, we need protections. We could be looking at a post-Watergate 2.0.

• 1:01:51Kara Swisher?

  But what message does that send if, this is a person who's violating a lot of things, I mean, January 6th alone, what message does that send? Or is it just about Donald Trump gets out of jams?

• 1:02:01Speaker 00

  You know, my second book was about all that. It's called Untouchable, How Powerful People Get Away With It. And it goes to a point I make in this book that I think you opened with today, which is, you know, everyone's heard the axiom, a country says a lot about itself by how it treats its least powerful people, its most vulnerable people. There's a flip side of that. We say a lot about how we treat our most powerful people. I do think Trump, in a way, is one of a kind. I do think he's gotten away with stuff way beyond what anyone else could ever get away with. But it's really hard, it's really hard, and I think you can see this through the history, to meaningfully hold someone to account in a way that has some modicum of political and public support. So it's a very difficult challenge.

• 1:02:37Kara Swisher?

  It's a difficult challenge, but I always say to people when they get all upset about that is, just because it seems like the wicked and criminal win, just because you don't know the end of the story yet.

• 1:02:47Speaker 00

  Maybe, maybe. Listen, I make no predictions in this world anymore, because so many things that I said could never happen.

• 1:02:54Kara Swisher?

  I'm talking about a longer story than that. I mean, beyond, beyond the grave story. Anyway, it's such a delight to talk to you, and let's have you back to talk about the sort of other current cases soon. Thank you, Ali.

• 1:03:05Speaker 00

  Thank you so much, that means a lot.

• 1:03:10Kara Swisher?

  Today's show was produced by Christian Castor-Russell, Kateri Yokum, Michelle Eloy, Megan Burney, and Kalen Lynch. Nishat Kurwa is Vox Media's executive producer of podcasts. Special thanks to Corinne Ruff and Bradley Sylvester. Our engineers are Fernando Aruda and Rick Kwan, and our theme music is by Track academics. If you're already following the show, you are on Pam Blondi's list. If not, you have an AOL account. Go wherever you listen to podcasts, search for On with Kara Swisher, and hit follow. Thanks for listening to On with Kara Swisher from Podium Media, New York Magazine, the Vox Media Podcast Network, and us. We'll be back on Monday with more.

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