Podcast: Trumped up charges? The law & politics of investigating a president's crimes

TRANSCRIPT: Trumped up charges? The law & politics of investigating a president's crimes

Preet Bharara:

There are people who are not fans of Trump and not allies of Trump, who I think are responsibly raising the question, the concern what is the level of seriousness of a crime on the part of a former president that justifies bringing it? And they're really great arguments and I struggle with this.

Ian Bremmer:

Hello And welcome to the GZERO World Podcast. This is where you'll find extended versions of my interviews on public television. I'm Ian Bremmer, and on today's episode, we're talking about it. You know, it. That thing that everyone has been talking about sucks all the oxygen out of the room and promises to do so for at least the next year, if not longer. A former president has been indicted and the country has never seen anything like it. Perhaps the most politically corrosive criminal trial in history is about to unfold while the defendant runs for president. It's bigger than OJ, huge. What could possibly go wrong? I'm asking former federal prosecutor Preet Bharara. Let's get to it.

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Ian Bremmer:

Preet Bharara, it's so good to see you as always.

Preet Bharara:

Good to be back, sir.

Ian Bremmer:

Thank you. So, I mean, we want to get to all the Trump stuff, but I don't want to start with it. I wanted to ask you first about Clarence Thomas. So he's a justice. Some people are saying he should resign. Not many to be fair, but it's this ProPublica investigation, benefits, gifts, largess that he took forward 20 some years from some billionaire and did not disclose. Do we care?

Preet Bharara:

I think we care. I think there are varying levels of concern depending on how seriously you view the optics of it and how seriously you view the appearance of a conflict. I don't think that he has violated necessarily any specific rule. It may not look good. It may look terrible, and I'll explain all the reasons why it looks terrible and it shouldn't have been done in the first place, but maybe not an actual statutory violation, ethical violation. Because there are rules that govern all judges that say gifts of a certain amount have to be disclosed or you shouldn't take them and that includes personal hospitality. But it's not a good look. It's not a good look for the judiciary. It's not a good look for the Supreme Court. It's not a good look for Clarence Thomas in particular because this is the second or third time in recent months that he's been surrounded by controversy.

The most recent Ginni Thomas, his wife has been involved in and been associated with people who are involved in January 6th. A lot of people have advocated for Clarence Thomas to recuse himself from decisions relating to the investigation of January 6th. He hasn't done that. And at a time when I think confidence and trust in the integrity of the court is low, it's not a great thing to have done. By the way, there's no evidence that Clarence Thomas voted in any particular way because of his association of friendship with this conservative billionaire. People might also argue in defense of Clarence Thomas, I'm not defending him, but people have argued that Clarence Thomas is a, dyed in the wool conservative, perhaps the most conservative person on the Supreme Court in its current makeup.

And the fact that he's associating with this billionaire and in connection with these trips and these parties and these home stays, he comes across other conservative people who can lobby him and can try to convince him of conservative doctrine. He doesn't need convincing of conservative doctrine. He already is one. But when other members of the public, including members of Congress, including most state officials when I was in the Justice Department, I couldn't take so much as a sandwich from somebody. In those circumstances, when you have the nine most powerful justices in the world or in the country, I'm sorry to take what is the equivalent of hundreds of thousands of dollars in accommodations and travel from somebody who might have interests that are implicated, generally speaking by the court, it's not great.

Ian Bremmer:

Now, he said that he had received advice from fellow justices as well as others that basically told him, "Hey, I don't need to disclose this." You find that credible, given what you said about the ethics.

Preet Bharara:

He could have just disclosed it. You could make the argument that I wasn't prohibited from doing it. So then why not disclose it? He didn't disclose it probably because it didn't look good, because a terrible look. Imagine what the outcry would be if Justice Sotomayor, Justice Kagan or any liberal justices on the progressive side did not disclose that they were taking the private jets of George Soros, a favorite boogeyman of the right, or some other people, there would be an outcry. And so the people who are defending Thomas on the right would not be defending a liberal justice. And I don't know if vice versa is true or not, but-

Ian Bremmer:

That's almost by definition in this environment, to be fair. But yeah, no, I get you. Okay, let's move on to a second topic, which is this intelligence leak that we've seen very significant involving US understandings of Ukrainian capabilities, Russian capabilities, other countries around the world. The DOJ is now investigating. What does it mean for the DOJ to investigate a leak like this? Do we usually have confidence that means that something will be turned up in relatively short order or not at all?

Preet Bharara:

It depends. Certain kinds of leak investigations are easier than other kinds of leak investigations. Leak investigations that involve at their core, the free press are very difficult to investigate. So if you have a leak that's in the Washington Post, whether or not it's sensitive national security information or the New York Times, that's very difficult to investigate and to put to bed in part because you can't really subpoena the sources, you can't subpoena the newspaper, the writers of the article who got the leaked information about who gave them the information. We saw this with respect to the leak. I know it's a totally different circumstance, but we were talking about the Supreme Court a second ago, and with respect to the leak of the Dobbs opinion to Politico I think it was.

Ian Bremmer:

Which was several weeks before it was going to come out, it really changed the politics of the case at that point.

Preet Bharara:

Yeah. And it got people charged up and it was a violation of decorum in the court and all sorts of other things.

Ian Bremmer:

And we don't know where it comes from still.

Preet Bharara:

No, but it's fine. But people have asked me the question, why don't they just ask the reporter? Because the reporter knew because the reporter got it from somewhere. Unless it was left in a brown paper bag outside the door. I don't think that's what happened. That's the one thing you can't do because we have decided as a matter of policy, and there's some amount of law to support this, that we don't go after reporter sources. And depending on the circumstances, even in national security circumstances, it might be difficult to do that. Leaks are done, generally speaking pretty cleverly. But sometimes you find out who leaked things. We've had national security breaches before. There are people who are still evading the long arm of American justice who leaked information. You can guess who I'm talking about. So I don't know. It's too early to tell.

Ian Bremmer:

So, okay, let's move on to the topic that is gathering so much media attention right now, which is the Trump indictments. Trump felonies for 34 felony charges. Before we talk specifically about the case, let me ask you, are we covering this too much? This is the first time I'm covering it, but is that too much?

Preet Bharara:

It's a huge thing. It's a significant thing.

Ian Bremmer:

Is it bigger than OJ?

Preet Bharara:

Yeah, it's bigger than OJ. It's bigger than OJ because it has implications for how we view our democracy. It has implications for how we think about the rule of law. It has implications for what we think is the standard of justice for everyone and whether or not there's a double standard, it has implications for the political race in 2024. It has so many implications. It is utterly unprecedented. And so it's not surprising that every outlet in the country wants to cover it. And by the way, it might be just step one.

Ian Bremmer:

Well I'm asking you in part because of this case, we can talk about step two, step three, but this case specifically-

Preet Bharara:

Well the first case is going to get a lot of attention because it's the first one.

Ian Bremmer:

But it's the least important, isn't it?

Preet Bharara:

I don't know if it's the least important one. I think there's an argument to be made of the four things that Trump has criminal exposure on that we know about and that are ongoing, it's the least serious conduct because it doesn't go like some of the other matters do to the core of American democracy or to national security classification and sensitivity. So yeah, I think that's not an unfair thing to say.

Ian Bremmer:

Now you know Alvin Bragg, who was brought this case. There are a lot of people out there including some Democrats that are saying that this is politicized, these charges were not brought under a previous prosecutor. Talk a little bit about what you think is motivating Bragg in this case.

Preet Bharara:

Full disclosure, I endorsed him in his race for Manhattan DA. I haven't agreed with everything he's done. He's done some things on the street crime side that I think he's been criticized for and he's answered to some of that. I think he's made the decision based on the facts and the law. This is a person who was handed another case against Donald Trump relating to inflated assets or deflated assets depending on what the Trump organization was trying to do. Got so much criticism for it that two people resigned from his office, who were also well-known criminal defense attorneys, but also former prosecutors, angry at Alvin Bragg for not pursuing a particular case against Trump.

Now you can disagree with that. We won't know cause we don't know all the facts when we weren't in the grand jury. But the fact that he had a case like that handed to him by well-respected prosecutors who are really angry that he didn't pursue it, that's not the kind of person who's grasping at straws and jumping at the first opportunity to charge the former President of the United States. That to me shows that they look carefully deliberated. And again, we can disagree. Maybe this case it should have been brought, maybe this one shouldn't be brought. We'll able to figure that out in the fullness of time. But this is not a person who, in that instance, for political reasons, brought a case because he could have brought it.

So I give him the benefit of the doubt because of that track record and experience. And here he saw another case and reasonable people can differ. Different prosecutors' offices sometimes look at the same conduct and one chooses to bring a case, another does not. I write about some examples of that in my book. It doesn't mean that someone is wrong or not wrong. These are judgment calls that need to be made. Is it the most serious crime in the history of the world? No, it's an E felony 34 E felonies, 34 E felonies, which is the lowest level of felony. It's the lowest level of felony in-

Ian Bremmer:

That is a classification of felony.

Preet Bharara:

Classification of a felony. It doesn't mean excellent, it doesn't mean electric. But at the same time, what I keep coming back to is when the supporters of Trump say again and again from their podiums, that nobody would ever be prosecuted for something like this, it's too trivial. I have two responses. The falsification of business records stepped up to a felony is charged in New York state all the time. And this particular conduct that's at the core of the question with respect to Donald Trump in the Manhattan DA's case has been charged successfully against another actual human being who you may have heard of Michael Cohen. So it's not like people who've engaged in similar conduct-

Ian Bremmer:

Donald Trump's former attorney.

Preet Bharara:

Former attorney, yes. Pled guilty to it in the southern district of New York, my former office. Went to prison in part for this.

Ian Bremmer:

Not for long.

Preet Bharara:

Not for long. But he went to prison. He thought it was a crime. His law lawyer thought it was a crime. The prosecutors thought it was a crime. The judge thought it was a crime and accepted the guilty plea. So you have somebody who definitionally is less culpable and responsible for this very conduct. I think you can make a powerful argument that it's good and right and proper to charge the more culpable person Donald Trump. Now that those two things are connected to each other, remember Michael Cohen wasn't convicted at trial. Substantially more difficult to convict someone at trial. And although it is true.

Ian Bremmer:

But they say that a grand jury can indict a ham sandwich. I mean, Trump's more than a ham sandwich.

Preet Bharara:

The fact that he pled guilty doesn't mean that Trump's more likely to get convicted. Trump has other defenses. Trump has knowledge defenses. It's the same conduct at issue but different statute. The falsification of business records is different from the way and manner in which the Federal Government charged Michael Cohen. There're statute limitations arguments that can be made. There are intent arguments that can be made. There's this what people keep calling a novel legal theory. I think that's a little bit of a misnomer because it's been done before where you take what is on its face on its own, a misdemeanor falsification of a business record and you step it up if that falsification was done to conceal or to further some other crime.

Ian Bremmer:

That makes it a felony.

Preet Bharara:

That makes it a felony. And there are arguments that I'm sure that Trump folks are going to make because he has at least one, if not more competent lawyers on his team. Another one of whom used to work for me at the US Attorney's office, Todd Blanche, he's a good lawyer, he's a good person.

Ian Bremmer:

And he's now working for Trump.

Preet Bharara:

Yeah. Alvin Bragg is a good lawyer and a good person. So there are legal challenges, there are factual challenges and we'll see how it unfolds.

Ian Bremmer:

So if you had to be on one side of this case, you'd personally as an attorney, you'd prefer which side and why?

Preet Bharara:

Well, I like the side of good and justice and truth and I like people to be held accountable. I think people are underestimating the strength of the case, but there's not an illegitimate argument about-

Ian Bremmer:

You'd rather be the prosecutor here.

Preet Bharara:

Yeah, but I think people are raising in good faith, not everyone, but there are people who are not fans of Trump and not allies of Trump who I think are responsibly raising the question, the concern what is the level of seriousness of a crime on the part of a former president that justifies bringing it? And they're really great arguments and I struggle with this. On the one hand we say no one is above the law, and if something is indictable and prosecutable and you can convict on it as happened with Michael Cohen, justice requires in this American system one standard, not two standards. You have to hold this other person accountable even if it's a former President of the United States. On the other hand, Prudential Democratic concerns suggest, well, how does it look when one administration is going after the leader of the prior administration? No matter how justifiable it is, no matter how much evidence you have, if it's not that serious, the argument is how does it look to other countries? How does it look to future generations? Does it look like it's political? Does it look like it's-

Ian Bremmer:

How does it look to future presidents? How does it work?

Preet Bharara:

Look to future presidents. I get that. And by the way, there are many people who argue in bad faith and you and I have talked about them on many occasions. I think here there's a good faith argument for supporting the prosecution and there's a good faith argument for being concerned about it given the level now of crime here.

Ian Bremmer:

As you said before, this is potentially only the first step. There are lots of other, well three other potential charges that are out there. We've got the issues of classified documents being mishandled. We've got the issues of his involvement around January 6th and then we have the issue around the Georgian elections I think, with the call. If you had to talk about those three, rank them, prioritize them in terms of severity which you think mattered the most, could you do that for me quickly?

Preet Bharara:

There's a disconnect a little bit between the likelihood of a case being brought and the seriousness of the conduct being investigated. The most serious conduct being investigated, I think without question is the January 6th matter. It goes to the heart of the peaceful transfer of power. It has as its essence anti-democratic forces, authoritarian and propagandistic, the big lie origins. That's what was driving it. I think it shook the capitol to its foundation.

Ian Bremmer:

And a lot of people that ended up going to jail as consequence of that.

Preet Bharara:

Yeah and people died. That's a big deal. That's something that's never happened in our country before. That's something we can't count and it's not something if we can hold people responsible for it, not just the people who breached the capitol, but people like the former President of the United States, that is far and away the most serious. I think the argument is likely that what's happening in Georgia, what's being investigated in Georgia is part of the January 6th thing. It's part of the big lie. It's part of trying to undo democratic process and steal an election, which is very, very important and a lot of gravity attached to it. The reason I'm hesitating is on the classified documents. I don't think that he's going to be charged with mishandling a classified document. That's a tough charge to bring.

Ian Bremmer:

A lot of other people do it.

Preet Bharara:

Well, it depends on what level of intent. I think the greatest likelihood is based on reporting and what we know publicly about the conduct of the president and his lawyers and others is obstruction of justice and obstruction of justice I think is a very serious crime, but probably is not as serious as shaking the foundations of our principle of peaceful transfer of power. But it's not unserious. In all three of them, as we say it probably more serious in terms of the nature of the conduct than falsification of business records.

Ian Bremmer:

So whether or not he's convicted of that, of course we've also had an impeachment process about that very issue and he was impeached an unprecedented second impeachment for a sitting president. He was not convicted. That is the process that an executive is meant to go through.

Preet Bharara:

I teach at NYU Law school and I offer this as a paper topic to students in the last couple years, discuss the propriety of the Department of Justice investigating Trump and potentially charging him for conduct that was already explored by the Congress. The argument in favor of not pursuing it by the Department of Justice is as you put in the stem of your question, this is how our system handles it. When you've got the head of the executive branch and you have the legislative branch separate but equal branches of government are at an impasse, you handle it through the political process. Double jeopardy doesn't attach because it's not the same forum, it's not the same court, it's not the same process.

During the course of both Impeachments, I would point out to people that even though they called it a trial, most of the hallmarks of an actual trial, a fair trial are not present. You don't have people... The jurors are also the ones who are witnesses in connection with the January 6th event. We tell jurors to keep an open mind. They're not allowed to read press about the case in an actual criminal trial in this country. Here, the jurors who are senators are not only watching the news, they're making news, they're previewing their, not in every instance, but they're previewing what they think about the case. There's no real judge. The rules of evidence don't apply. Hearsay is admissible, all sorts of things.

Ian Bremmer:

But it still is the process.

Preet Bharara:

It's the process. The Justice Department has a separate process and the Constitution also makes clear that impeachment or no, a President of the United States is subject to criminal sanction still after he leaves office.

Ian Bremmer:

So that is the argument. That's what you're saying.

Preet Bharara:

Yeah. Look, I think with a lot of these things, can we get philosophical for a moment?

Ian Bremmer:

Yeah.

Preet Bharara:

And I think we've had this kind of conversation. There's some arguments that people make that are in bad faith and are just terrible and are off the wall whether they're legal, ethical or something else or moral. And there are some arguments where or issues on which reasonable people can differ and there's a stronger argument on one side than the other. And on some of these questions like the propriety of bringing the indictment in the Manhattan DA's office and some others, there are arguments made on both sides and I think it's useful. So the best answer, just to give you a general question, even though you didn't ask it this way, the best answers that I get to any question and that I think I find in commentary like yours, and you do this a lot, all kidding aside, is you respect and appreciate the arguments on the other side.

You marsh the better arguments as you can find them and you don't misstate the arguments of your opponent and you go from there. I think that the Department of Justice has a totally separate independent responsibility to hold accountable anybody that thinks in the interest of justice can be proven guilty of a crime beyond a reasonable doubt. And even though we have this process of impeachment and no conviction at trial, I think you can also argue, and I'm going to disparage the structure of the Constitution, but it's a little bit of a silly and the way we saw it unfold, unserious enterprise that is bound up by politics because it was intended to be.

Ian Bremmer:

The impeachment process.

Preet Bharara:

Impeachment process leaves a lot to be desired, yeah.

Ian Bremmer:

Well, and especially as divided as the country has been, the impeachment process is pretty broken on both sides at this point.

Preet Bharara:

But it's not crazy to say that's why it's a paper topic. It's not crazy to say generalized criminal law enforcement when it's someone like you or me, private citizens, that the Justice Department can take on those responsibilities and hold people who are private citizens accountable. But you're talking about a sitting President of the United States. How can you have a process independent of politics? Even if you appoint a special prosecutor, it quickly becomes politicized the way our constitution-

Ian Bremmer:

How do you have a fair jury in that environment? Every juror is going to have a view. He's going to know the person.

Preet Bharara:

But the argument goes when it involves the chief, the head of a branch of government, and they're being investigated by and challenged by and accused of another branch of government. There's an intergovernmental process by which that works out. And you have the chief justice of the Supreme Court preside over that trial, although he doesn't do much and didn't do much in these two past cases, and you let the chips fall where they may, and then that's that.

Ian Bremmer:

Now as this plays out and these cases are going to take a while and Trump is running for the nomination, he is certainly the favorite at this point to get the nomination. Let's imagine he's found guilty of one or more of these charges. He's not yet president. What does that mean in your view for his ability to pursue that run.

Preet Bharara:

Nothing. He can be pending trial. He can be charged, he can be convicted. He can be in prison as far as I understand it, and still run for and win the presidency. Historically, you might predict that if someone gets convicted of a crime, they would lose votes. We not had a situation where someone was on the verge of being convicted of committing a crime. This may be one of those circumstances-

Ian Bremmer:

It's less clear in this circumstance. That's right.

Preet Bharara:

Look, and in other countries people have been convicted of crimes and come back and run for office.

Ian Bremmer:

Do you think it's more likely given where the cases are right now, that they would actually play out in completion before the election?

Preet Bharara:

No, I don't think so. I think even this first one, 18 months out from the election, remember the same district attorney's office charged the Trump Organization, took the entity to trial with the same judge. I think that was something like 15 or 16 months from beginning to end. That was, I think less complicated and less difficult. Didn't involve the former President of the United States. It was fought hard, but probably not as hard as this is going to be fought. I also think that not to step out of my lane for a second and think about politics, I also think it's in Trump's interest not to have had the trial.

Ian Bremmer:

To keep played it out. Yeah.

Preet Bharara:

Yeah. To say this trial's hanging over my head. They're trying to persecute me because of my politics and on election day, a vote for me will send a signal that you can't intimidate me, some version of that. Because on the other hand, trying the case and the possibility of getting convicted, I think the likelihood is he would be convicted, I don't think it's a sure thing. It's a triable case I think. On the eve of the election, who knows how that plays out. Maybe he makes him more of a martyr, maybe not. But I think the scenario I mentioned a second ago of being convicted and being imprison and running for the presidency is not likely to arise in the situation with respect to the Manhattan DA's office case. Because I don't think Trump is getting any jail time. And I think people may not appreciate that given the level of the felony.

Ian Bremmer:

Even though Cohen, again, did.

Preet Bharara:

Cohen also plead guilty to other crimes unrelated to this, including tax offenses, which he now says he plead guilty to under duress, which is a further reason why he's not going to be a great witness and he's going to be challenged on cross-examination.

Ian Bremmer:

Why do you think Trump would not get jail time in this case?

Preet Bharara:

As I said a second ago, the arguments that someone of his age, with his lack of criminal record and based on the seriousness of the conduct, would be unlikely to get a jail sentence. And by the way, I'm not sure this should factor in, it's all complicated by the fact that we say everyone is equal and no one is above the law. But we do treat former presidents differently and one way we treat them differently is we give them Secret Service details for the rest of their life because we feel that they're important assets of the country, if you will, and we protect them. So the idea that in a case of this level of seriousness, given all the other circumstances I mentioned and the Secret Service issue and the safety of a former president, I find it hard to believe the judge would sentence him to prison.

Ian Bremmer:

Let's hope. Just so everyone that's paying attention gets what we're saying here. You said before that this is going to get vastly more attention than OJ and you think deservedly so. It's also going to play out almost certainly over the course of the election. So we're going to be in 2024 voting for the presidency and assuming Trump gets the nomination, all of this is going on real time when people are going to the ballot box.

Preet Bharara:

Yeah. Look, I mean, what's funny about this is nothing funny about this actually, but the irony is, as we were saying earlier, when the shoe's on the other foot, people say something very different, they sing a different tune. Donald Trump made it a feature of his campaign and his competition with Hillary Clinton-

Ian Bremmer:

To say, "Lock her up."

Preet Bharara:

And to say someone who's under criminal investigation, I think, Donald Trump once said that if you plead the fifth, it means you're guilty. He has pled the fifth in recent times in New York State. So it's all new stuff. We'll see how it goes.

Ian Bremmer:

It is. He used to also post normally and now it's all caps and it's not on Twitter and it's strange. It's true. The level of discourse around this conversation, the level of heated confrontation between Trump and his supporters and those that want to bring him down has gotten so much only worse since January 6th.

Preet Bharara:

Yeah. Although, look, I don't know what conclusion you can draw from this. There was not violence on the day of Trump's arraignment. Even though everybody knew it was happening. They knew where it was happening. And Trump had riled them up and used some incendiary language. Whether that's a function of people getting the lesson from January 6th and the deterrent effect that's been felt because hundreds of people have been prosecuted and gone to prison. Or it's the fact that Trump supporters didn't want to pay the hotel bill to be in Lower Manhattan. I don't know. But it is interesting that even though there was a lot of trepidation and fear about what might happen on that day, nothing really came to pass.

Ian Bremmer:

Let's use that as a silver lining as we look forward for what's going to be a couple of years-

Preet Bharara:

You're going to have to have me back.

Ian Bremmer:

Well, we will do that. Preet Bharara, thanks so much, man.

Preet Bharara:

Thanks, Ian.

Ian Bremmer:

That's it for today's edition of the GZERO World Podcast. Do you like what you heard? Of course you did. Well, why don't you check us out at gzeromedia.com and take a moment to sign up for our newsletter. It's called GZERO Daily.

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The GZERO World Podcast is brought to you by our founding sponsor First Republic. First Republic, a private bank and wealth management company, places clients' needs. First by providing responsive, relevant and customized solutions, visit firstrepublic.com to learn more. GZERO World would also like to share a message from our friends at Foreign Policy, an endangered purpose, a fish whose bladder fetches tens of thousands of dollars on the black market, the highly desirable and delicious colossal shrimp. Travel to the Gulf of California on a new season of The Catch, a podcast from Foreign Policy and the Walton Family Foundation. You'll hear about the tension local fishermen face in providing for their families and protecting marine habitats and your role in returning balance to the environment. Follow and listen to The Catch wherever you get your podcasts.