Podcast: Preet Bharara on The Mueller Investigation

Transcript

Listen: "Every decision is made not based on principle or truth, but rather whether or not it is good or bad for Donald Trump."

Sometimes getting fired can be a badge of honor. Especially if the Trump Administration is doing the firing. Former US Prosecutor Preet Bharara comes on the show to talk about President Donald J. Trump's combative relationship with the Justice Department and how the Mueller investigation could shake out.

TRANSCRIPT: Preet Bharara on The Mueller Investigation

Preet Bharara:

When you're going to take such a serious act like charging a sitting president of the United States, whatever you might think of him politically, you want it to be very, very clear that a crime has been committed, that a serious crime has been committed, and that you have the absolute authority to bring the charge.

Ian Bremmer:

Hi, I'm Ian Bremmer. And welcome to the GZERO World Podcast. I'm host of the weekly show "GZERO World" on Facebook Watch. In this podcast, we share extended versions of the big interviews on that show.

This week, I sit down with Preet Bharara. He's former US attorney for the southern district of New York, and presently scholar-in-residence at the NYU School of Law. As US attorney, Preet was known for his prosecutions against public corruption and Wall Street crime.

His podcast "Stay Tuned with Preet" is now required listening for anyone following the Mueller investigation. Today I'll ask him about the future of the Russia probe and the Trump presidency's effect on government norms and institutions. Let's get to it.

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Ian Bremmer:

Welcome, everyone. Here in the Eurasia Group headquarters, Flatiron District, New York City. Right place to be talking to Preet Bharara. He is a distinguished scholar at NYU School of Law, not far from here. Also was, of course, US attorney for the southern district of New York. That includes where we're sitting right now. And you listen to his podcast "Stay Tuned with Preet." Preet, glad to be here.

Preet Bharara:

Thanks for having me.

Ian Bremmer:

Scale of one to 10, how inappropriate do you find this administration?

Preet Bharara:

Based on everything that he's done recently, publicly trying to dictate who the Department of Justice should prosecute, whether it's a former adversary or not, who the Department of Justice should stay away from, whether it's Michael Flynn or Joe Arpaio. This is the kind of business that he's in. And I don't think he understands that the institution that I used to serve for a lot of years is not supposed to be about politics at all.

Ian Bremmer:

Is it about politics or is it about individuals?

Preet Bharara:

Trump is a very transactional person from the sense I get, and that's how he conducted his businesses. And that's how he engaged in all of his work in the private sector throughout his life.

Politics is also a transactional business. But there are some things that are supposed to be outside of politics, and one of those things is the rule of law and law enforcement. So when it is helpful to him to have an adversary under attack by whatever means, whether it's by making fun of them in the newspaper or having bad articles written about them, or in the case that we're talking about, training the substantial guns of the FBI or Justice Department on them, he doesn't hesitate to do that.

So for him, obviously, he's in the business of politics now. And I think he thinks he wants to remain on top. He doesn't like being criticized. He doesn't like people constantly in his view, undermining his electoral victory, which was not insubstantial, but it wasn't the popular vote, and it wasn't as big as he keeps saying it was. So he hates that.

And so I think he's always trying to distract from his own shortcomings. He's trying to distract from criticisms, both legitimate and illegitimate, brought upon him. And one of the ways he does that is to engage politics even in institutions that are supposed to be above him.

Ian Bremmer:

He says certainly an awful lot of things that imply that he wants to erode these institutions, make them subservient to him, make them more political. But how much has he actually done?

Preet Bharara:

I'm not concerned about Congress as a whole. I'm not concerned about the executive branch as a whole. I'm not concerned about the judiciary as a whole. But I am concerned about this element of rule of law where people have come to appreciate, and have faith in, and trust in the fact that when law enforcement decisions are made, they're made based on the facts and the law and not because a particular politician, whether it's a president or a senator or someone else, wants an enemy to be hurt or wants an ally to be protected.

Ian Bremmer:

And you think that's now changing.

Preet Bharara:

I think the feel of things is certainly that. Look, what's one of the things that the president has been most angry about? He's been most angry about the staunch conservative, former Republican senator Jeff Sessions, who he installed as attorney general. He's most upset that he recused himself.

Ian Bremmer:

Recused himself. Yes. After he told him not to.

Preet Bharara:

And the president of the United States has done everything he can to assail that decision, say it was wrong, say, "If Jeff Sessions had told me in advance he was going to do that, I would've appointed someone else." For what purpose? For what purpose did he want this person to be not recused? He wanted him not to be recused and still involved in the case to protect him. But that undermines-

Ian Bremmer:

What I'm hearing from you-

Preet Bharara:

... the principles that I understood the department to stand for.

Ian Bremmer:

What I'm hearing from you so far is a whole bunch of stuff where Trump is saying a lot of things that, taken at face value, imply that the rule of law should be diminished.

Preet Bharara:

Look, I'm not saying he's destroyed the Justice Department or he's destroyed America or he's destroyed the rule of law. But it's only been 11 months.

Ian Bremmer:

I'm just asking if he's had any impact on it. Yes.

Preet Bharara:

Yeah, I think so. Because look, institutions don't get destroyed overnight. There are good people who work at all these places who are career folks. One way in which you can affect, I think, the rule of law or the enforcement of law in a bad way is that good people don't want to work there anymore.

And I think, anecdotally, there's evidence that some people think, "Why is this worth my time?" I know you spend time talking to a lot of diplomats.

Ian Bremmer:

State Department. Same thing.

Preet Bharara:

But the State Department is not wrecked overnight. What happens over time, it manages to carve out and gut an institution of people who have been there a long time, both in the State Department and the Justice Department and the EPA, you name the institution, who served Democratic presidents, Republican presidents with great pride and provided a lot of institutional memory for those places.

And you can't tell overnight that that makes America weaker or that makes America less just and less fair. But I think, over time, that's what happens.

Ian Bremmer:

But time to raise a warning precisely because you believe that that erosion process is truly beginning in many of these places.

Preet Bharara:

Yeah. I think so. I think so.

Ian Bremmer:

Let me now ask you specifically about the Mueller investigation. Do you think he can avoid a direct interview with Robert Mueller?

Preet Bharara:

Yeah, sure. There are ways to do that. What I assume is happening is, at some point, the Mueller folks will say, "In connection with our investigation, either to wrap it up or to advance it, we want to talk to the President of the United States."

And the request is a voluntary interview because it's a crime to lie to the FBI, whether you're under oath or not. The president has said repeatedly that he's happy to do it. He's happy to testify under oath. I'm sure his lawyers don't want him to do that.

Ian Bremmer:

I'm sure they don't.

Preet Bharara:

Because he's not great with the truth, with one caveat that I'll mention in a moment. He could decide he doesn't want to do it. There's no collusion here. So what's the point? Why would they even want an interview? It sounds like he's laying the groundwork not to have to give an interview.

And then the Mueller team has a choice. They can say, "Well, fine. There's something called a grand jury subpoena that you're not immune from, so far as we believe there's an argument for that position." And the president can decide either to comply that way, which usually doesn't happen in that case because they'd rather cooperate in a non-grand jury environment, in an interview environment, without having to look like they were compelled to testify.

Or you say you're taking the Fifth Amendment. And there are lots of issues related to (A) what that looks like politically and publicly, and (B) whether you have an actual basis to assert that privilege. My guess is, at the end of the day, a normal person in President Trump's position, who's a high-ranking person, who believes that nothing he did was wrong or unlawful because of the political considerations and also potentially the legal considerations, does an interview with the FBI. Now, this is not a normal person. He does not do things in the normal way.

Ian Bremmer:

Right. It's not a normal circumstance.

Preet Bharara:

It's not a normal circumstance. It's not a garden-variety investigation. So I'm not going to predict how it's going to end up. But the other point I was going to make is this. We both smiled and nodded at each other when we said the lawyers probably don't want him to testify in any way, shape, or form because he puts himself in legal jeopardy.

Ian Bremmer:

And you said with an exception. What's the exception?

Preet Bharara:

Just because he acts in a crazy way on Twitter and he lies repeatedly about crowd size and conversations that were had and the prior president's birth certificate and things like that does not necessarily mean that he's going to be a babbling, crazy, self-incriminating maniac when he's presented with a serious prospect in a conference room of dealing with and answering questions from very, very serious, rigorous lawyers.

Ian Bremmer:

He can be careful when it matters.

Preet Bharara:

Yeah. Which, to me, by the way, separate and apart from what the legal jeopardy is, indicates to me that he's smarter than a lot of people give him credit for. And he knows... That tells you he knows how to be careful when he wants to be, when he cares about it, when he think it's going to have some consequences.

So I actually don't think he walks around blabbing like a child like some people want to infantilize him in that way. He's not. And these examples of how he conducts himself when it's a legal proceeding are very interesting in that regard.

Ian Bremmer:

All of this would imply that Trump should be prepared to talk in any circumstance. He said no collusion. He can be careful when he's under investigation. Why wouldn't he then go on the record? And he's going to say whatever he wants to separately to his base anyway. Why not go the easier route politically?

Preet Bharara:

That's a great question. And so even though we're saying we don't want to sit around analyzing the person's mental capacity, we do often, in environments like this, end up talking about his mental process. Right?

Ian Bremmer:

Right. You try to put yourself in his shoes so you understand what's going on.

Preet Bharara:

Because he does nothing like a normal person. I think that, among other things, what causes him to act a particular way about Russia, and this does not necessarily say anything about guilt or innocence... I mean, some people like to say the fact that he wants to shut down the Russian investigation, and I think it's a very good argument, means that he must be conscious of some guilt because that's what most bad people do.

Ian Bremmer:

But it also undermines the legitimacy of his-

Preet Bharara:

Correct. Right. Which has nothing to do with criminal conduct.

Ian Bremmer:

Not criminal at all.

Preet Bharara:

But whether it's because he thinks he's guilty of something and he's trying to hide it or he thinks it undermines the legitimacy of the prior election, whichever one of those things it is, he definitely gets very, very angry about it. And he hates it. He mentions no collusion, no collusion 10 times.

He got angry at Jim Comey, as far as we know, for not saying that he wasn't under investigation. The mere mention of Russia and the investigation drives him crazy. Now, when anger is a part of your decision-making process, even if you're a regular person of normal heart function and brain function, that can cloud your judgment.

Ian Bremmer:

So what's the piece of the investigation so far that you view as most serious, impactful, problematic for the President?

Preet Bharara:

Again, I like to caveat always by saying I have no idea what Robert Mueller is up to other than what we see publicly. And there may be a lot submerged that we don't know about.

We had investigations all the time where everyone was speculating. And sometimes they were correct, but often they were wrong. And we were really barking up this tree when people thought we were going after these other trees.

But that said, I think all things relating to obstruction seem very serious to me. They don't all emanate from the firing of Jim Comey, but a lot of it begins with the firing of Jim Comey. All the ways in which the president has said he wants the Russia investigation to go away. The fact that he asked Jim Comey for his loyalty, which I credit. The fact that he asked Jim Comey to lay off on Michael Flynn, which I credit.

The fact that he told Lester Holt, which we must credit because it happened on television and everyone saw it in the country. That when he fired Jim Comey, he was thinking about the Russia investigation. The fact that there was a pretextual memo, to my mind, that was prepared by Rod Rosenstein that said the reason Jim Comey was being fired was because of the way he treated Hillary Clinton.

The idea that Jim Comey, at one point... I forgot who said this. Somebody said this. I think Jeff Toobin said this on television, "Donald Trump and his allies should kiss the ground that Jim Comey walks on because but for him, he would not have become President of the United States."

So all of these motivations seem to be at odds with each other. There seem to be a lot of lies about them. And when you bring a criminal case, particularly an obstruction case, part of what you want to convince the jury of is that your narrative makes sense.

And he did this thing, whether it was the firing of Jim Comey or other things that he did, because he was trying to have an influence on an ongoing proceeding. And the more evidence there is of his anger about it, the more evidence there is that he was trying to cover that up by having this memo that talked about something that nobody in their right mind thinks was the basis for the firing of Jim Comey.

Ian Bremmer:

The memo from the deputy.

Preet Bharara:

The memo from the deputy. The more obfuscation there is about an act that you did that you otherwise are saying, "I had absolute legal authority to do it," makes you question that.

Ian Bremmer:

If the investigation goes forward and they believe that they have enough to "get" President Trump for obstruction of justice, what happens?

Preet Bharara:

I don't know. There is a longstanding opinion written by the Office of Legal Counsel, OLC, which is, within the Justice Department, the independent legal mind and legal heart of the Justice Department.

And it has been long, I think, accepted, a consensus acceptance of the principle during the Clinton Administration since then, that the Constitution does not permit the indictment of a sitting president of the United States for various reasons. And there's other scholarship that suggests maybe that's not true. And people talk all the time on programs like this and elsewhere saying there is support for the idea that a president can be charged criminally while he's sitting in office.

My guess is, and I'm saying this on the podcast this week if people want to hear more about it, that when you're going to take such a serious act like charging a sitting president of the United States, whatever you might think of him politically. And remember, Special Counsel Office is supposed to be above politics, you want it to be very, very clear that a crime has been committed, that a serious crime has been committed, and that you have the absolute authority to bring the charge.

And if there's any question or doubt in any of those three things, and the one we're talking about is whether or not there's authority to charge a sitting president, I think you undermine faith in the rule of law. I think you undermine credibility in the Special Counsel's Office. And I think you cause something of a crisis in the country because you're giving people reason to think that it's an unfounded charge to-

Ian Bremmer:

And you're saying there's very good reason to think that there's uncertainty or would-be uncertainty-

Preet Bharara:

Yeah. Look, I think the prevailing consensus legal opinion, and there's dissenters from this and there's arguments on the other side, but the prevailing consensus legal opinion is that the President of the United States cannot be charged, should not be subject to criminal prosecution while in office. It can be afterwards.

Ian Bremmer:

Right. At which point they bring something he is then-

Preet Bharara:

So the other option, to go back to your question, is you do nothing. Or if it's believed to be something that qualifies as a high crime and misdemeanor, as everyone speculates about, you make some sort of a report referral to Congress. And then that's a political enterprise and a political operation. God knows what happens there.

Ian Bremmer:

And that depends on midterms and all the rest.

Preet Bharara:

I think it does. Yeah.

Ian Bremmer:

How much of this makes you concerned about heading towards a constitutional crisis?

Preet Bharara:

In recent memory, we have not had a president who has, I think, attempted to create a chilling effect on people exercising their independent law enforcement duty. I think we haven't had a president in modern times who has had such a terrible relationship with the truth.

Not that he's going to have any success in shutting down the failing or failed New York Times or whatever the criticism he has with CNN, whatever slur he uses against them. But what he does do is he sows a lot of lack of faith and mistrust in all the basic American institutions.

Now, there are judges who get things wrong. Trust me. I had that view not infrequently when I was the United States Attorney. There are reporters who get things wrong. And there are reporters who are bad people. There are people in Congress who are bad people. That's all true.

But what he's doing to a degree that I've not seen before is trying to make it appear that none of them have any integrity, that no one's really doing their job. He only praises people when he likes the decision that they make or the coverage that they give him. And he despises and undermines people if he doesn't like the opinion or doesn't like the coverage they're giving him or doesn't like the decision they've made in a court or somewhere else.

And literally, every decision is made, and criticism and praise is based not on principle or truth. It's always based on whether it's good or bad for Donald Trump. And because there are tens of millions of people who support him no matter what, it a little bit twists the way we think about things. And there are, I think, a few voices who stand up for principle and truth.

And it doesn't mean that Donald Trump lies about everything. He's right about some of his assessment about America. I say it all the time. He was right. There is a swamp. I don't think he's draining it. I don't think he knows what it is exactly.

Lots of people have been forgotten. That's absolutely true. The system is rigged. We tried to do what we could to rectify the ways in which the system was rigged on Wall Street and elsewhere. So he's not always wrong, but he does enough to undermine any kind of traditional sense that institutions can be composed of people who act on principle and based on truth. I think that's very dangerous.

Ian Bremmer:

Winter is coming. Sounds about right.

Preet Bharara:

I thought winter was last week.

Ian Bremmer:

It's still coming.

Preet Bharara:

It's still coming.

Ian Bremmer:

It's coming long-term, Preet. Thanks so much.

Preet Bharara:

Thanks for having me.

Ian Bremmer:

Good to see you.

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