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U.S. Supreme Court Associate Justice Clarence Thomas poses during a group portrait at the Supreme Court in Washington, U.S., October 7, 2022.
SCOTUS adopts new ethics code as public trust plummets
The US Supreme Court on Monday issued a formal code of conduct for its nine justices following allegations of serious ethics violations, mostly concerning Justice Clarence Thomas.
“For the most part these rules and principles are not new,” the court said in a statement. “The absence of a Code, however, has led in recent years to the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules,” it continued.
Among other things, the new rules emphasize that justices should not “participate in extrajudicial activities that detract from the dignity of the Justice’s office” or “reflect adversely on the Justice’s impartiality.”
Unclear enforcement: It’s still not entirely clear how these rules will be upheld, and some legal scholars suggested the move was largely an effort to address nearly historic levels of public distrust with the nation’s highest court.
“I think it's a positive sign that the justices adopted at least *some* rules today (and a sign that the Court *is* reactive to public pressure, as I think it ought to be),” tweeted Steve Vladeck, professor at the University of Texas School of Law. But he added that “even the most rigorous ethics rules aren't worth that much if there's no incentive to comply with them.”
Similarly, Sen. Sheldon Whitehouse (D-RI), a member of the Senate Judiciary Committee, in a statement said, “This is a long-overdue step by the justices, but a code of ethics is not binding unless there is a mechanism to investigate possible violations and enforce the rules.”
Whitehouse has pushed for a bill that would require SCOTUS to adopt a binding ethics code for justices and create a process for investigating allegations of misconduct. The Senate Judiciary Committee voted to advance the legislation in July, but it has faced fierce opposition from Republicans and remains up in the air.
Why Clarence Thomas has eroded trust in the US Supreme Court
Few Supreme Court Justices have tested the Court's ethical limits like Justice Clarence Thomas, says this week's GZERO World guest, Yale Law School legal expert Emily Bazelon. And that's because, for centuries, Justices have been reluctant to test the boundaries of an ethical system that has few limits. "Federal judges and lower courts are subject to ethical codes," Bazelon explains, "but not the Supreme Court justices themselves."
As a result, the Court has experienced some of its lowest public approval ratings in history, this past year. Some of that discontent, of course, can be traced to the Court's rightward swing under its conservative supermajority. But for a branch of the government that relies heavily on public trust to ensure that its rulings are respected and carried out, the decline in popular support is cause for concern.
"People do not have faith that this is a non-political institution, and that's what courts are supposed to be, at least in theory. They're supposed to be doing something called law, that's separate from politics."
Tune into GZERO World with Ian Bremmer on US public television stations nationwide. Check local listings.
For more on the Supreme Court and what to expect from anticipated rulings this year, watch this episode of GZERO World with Ian Bremmer: "Who polices the Supreme Court?"
Who polices the Supreme Court?
Who watches the watchmen? And who oversees the US Supreme Court? As SCOTUS, the highest court in the US, gears up to issue some blockbuster rulings this summer, ethical concerns swirl around its members, and its public support is at an all-time low.
It’s been one year since SCOTUS struck down Roe v. Wade, eliminating the constitutional right to abortion after 50 years of precedent. In the months following the decision, the conservative supermajority quickly moved US law away from the political center. Multiple controversies erupted surrounding Justice Clarence Thomas, and public opinion balked at a blanket refusal to address questions about the justices’ ethical standard.
Has the Supreme Court become overly politicized? Can public faith be restored in a deeply partisan America? And what major rulings are still to come this session? Ian Bremmer talks with Yale Law School legal expert, New York Times Magazine columnist and co-host of the Slate’s Political Gabfest podcast, Emily Bazelon.
Tune into GZERO World with Ian Bremmer on public television stations nationwide. Check local listings.
- 3 key Supreme Court decisions expected in June 2023 ›
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- Podcast: An active US Supreme Court overturns "settled law" on abortion. What's next? ›
- Ian Explains: The US Supreme Court's history of political influence - GZERO Media ›
Podcast: (Un)packing the Supreme Court with Yale Law's Emily Bazelon
Listen: The Supreme Court, one of the three branches of government that makes up this country's democratic system of checks and balances, doesn't have a military. As a result, when its justices make a ruling, they are counting on a strong sense of public trust to ensure their decisions are carried out. Not all countries on this planet can count on that public trust, and with popular support for the Court plummeting to record lows, some experts fear that the United States may soon be unable to as well.
So as SCOTUS gears up for what is sure to be a blockbuster June of Court rulings, a flurry of ethical questions surrounding the bench--as well as its hard-right turn under a conservative supermajority--have made the prospect of a potential Constitutional crisis more plausible than ever before. And then comes the 2024 election. On the podcast this week, Yale Law legal expert and co-host of Slate's Political Gabfest joins Ian Bremmer to discuss the Court's many headwinds ahead, as well as the specific cases slated to be decided in the coming weeks.
Subscribe to the GZERO World Podcast on Apple Podcasts, Spotify, Stitcher, or your preferred podcast platform, to receive new episodes as soon as they're published.TRANSCRIPT: (UN)packing the Supreme Court with Yale's Emily Bazelon
Emily Bazelon:
It's really all about appearance, but that's important. Judges are supposed to appear unimpeachable, so that they don't get impeached.
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 today we are talking about the highest court in the land, the court of last resort, the Supreme Court of the United States. It's been one year since SCOTUS struck down Roe versus Wade, eliminating the constitutional right to abortion after 50 years of precedent. In the months following the decision, public confidence in the court fell to an all time low, thanks to the conservative super majority quickly moving US law away from the political center, multiple controversies surrounding Justice Clarence Thomas and a refusal to address questions about Justice's ethical standards. Has the Supreme Court become overly politicized? Can public faith be restored in a deeply partisan America? And what major rulings are still to come? This session, I'm talking with Yale Law School legal expert, New York Times Magazine columnist and co-host of Slate's Political Gabfest podcast, Emily Bazelon. Let's get to it.
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Ian Bremmer:
Emily Bazelon, thanks so much for joining me again.
Emily Bazelon:
Thanks for having me.
Ian Bremmer:
Great. The last time you were with me about a year ago, I think it was, we talked of course a lot about the Dobbs decision and specifically that so much was going to matter in terms of where we were going to see major restrictions and what kind of restrictions we'd see state by state. Have you been surprised by the politics around this over the last 12 months?
Emily Bazelon:
I have been surprised. So here's what's not surprising. 14 conservative states have banned abortion, more or less, and there are more of severe restrictions and bans pending in a few other states. I think we expected that. What has been surprising have been the ballot initiatives that have uniformly so far protected abortion rights in the six states where they have been up for a vote, including in Kansas-
Ian Bremmer:
A very conservative state, very red state.
Emily Bazelon:
Exactly. And Montana and Michigan, a famously purple state and Kentucky actually also another red state. So I think what we're seeing here is that when abortion is put to voters directly, one issue they can concentrate on, they are more interested in protecting abortion rights than I think a lot of people on the right and the left expected.
Ian Bremmer:
Is this because these individual referenda were overly restrictive compared to, I mean, what Roe v. Wade originally was protecting?
Emily Bazelon:
Yes, but what's interesting about the ballot initiatives is some of them protect abortion rights up to viability. And so if abortion opponents thought they would succeed by making voters focus on second trimester abortions as opposed to first trimester abortions, which are much more common, that strategy does not seem to be working so far for them at the ballot box.
Ian Bremmer:
I mean, the vast majority of people that are getting abortions are getting abortions early when they find out about it. I mean, that's well over 90%, 95%. That's my understanding, right?
Emily Bazelon:
Yes, it's about 90% in the first trimester. You're absolutely right. As a political issue, sometimes second trimester abortions get emphasized by opponents as a way of making it seem as if that's more common than it really is.
Ian Bremmer:
I mean, we're talking so much of the politics here actually has very little to do with the rights that people experience. Is that correct?
Emily Bazelon:
Yes. I think that's true. The other thing that we should talk about are abortion pills.
Ian Bremmer:
I was just about to go there. So it's been a huge issue for the corporations that are offering or not offering them in red and blue states. It's been a huge issue for the legality and whether or not they are meant to be legal in the entire country. Can you send them over state lines? Talk about the politics of that.
Emily Bazelon:
Yeah. So abortion pills now account for more than half of the abortions in the United States and I think before Roe was overturned, people thought that women seeking abortions would fly to New York. It turns out that while they're willing to drive quite far distances, people who are struggling to get abortions, people of color, people without a lot of money, people who need to line up childcare, take time off their jobs. Women in those positions are more interested in staying home to have abortions that they manage themselves than I think a lot of clinics and pro-choice organizations expected.
And so what we're seeing is that people are finding a way to get pills. It's like a giant legal gray area. Into states with bans or restrictions, a lot of the pills so far are coming from countries like India, which means they can take a while to get here. But there's an increasing effort on the part of blue states to pass shield laws that try to protect abortion providers in their states. So a doctor in New York who prescribes pills across state lines into a state like Texas, that is going to raise a lot of unanswered legal questions going forward. But it's an important potential avenue of access.
Ian Bremmer:
Are there potential legal repercussions for a doctor in a state where it is legal to provide abortion pills, providing them to someone who clearly is in a state where that would be illegal?
Emily Bazelon:
Well, states like Massachusetts are trying to do their best to say, "We will not cooperate. If a state with an abortion ban wants to prosecute one of our doctors for prescribing pills across state lines, we're not going to extradite her. We're not going to let you use our court system to go after her medical license or to sue her." Whether that works in the end, whether states can oppose each other's efforts to enforce laws like that, that's a big open question.
Ian Bremmer:
Would that doctor then face liability if they decided to go to the state? I mean, so in other words, you're in New York, you're just not going to that state anymore.
Emily Bazelon:
Right. I think the doctors who are planning to do this, and there are several of them, they are not planning to travel to states where there could be a warrant for their arrest. And so that ability to travel is something they are willing to give up.
Ian Bremmer:
Is that new?
Emily Bazelon:
This is new.
Ian Bremmer:
Has that ever happened before where people from individual states in the US just couldn't travel to other states because they'd suddenly get arrested?
Emily Bazelon:
I always hesitate to say nothing has ever happened before, but to see this kind of conflict over state law, you have to go back to the Civil War.
Ian Bremmer:
This is like Putin going to South Africa and the International Criminal Court. I mean, it feels like that's what we're talking about here.
Emily Bazelon:
Right. And what we're talking about, I think it bottom here is a real clash over law and morality. So a state like Texas is saying that abortion is murder and the state of New York is saying this is a human right. We want our abortion providers to be able to help women in states like Texas. That's such a fundamental clash. That's what we're seeing here.
Ian Bremmer:
Even so, I mean there have been people that have been very strongly on both sides of this issue for time immemorial in the United States, but the idea that suddenly a basic legal system architecture of the US just doesn't apply in various states and that a person's ability to stay out of jail would depend on what state they're in. That seems a little bit nutty for 2023.
Emily Bazelon:
It's really surprising. Usually when Texas wants to extradite you and you're somewhere else, that other states says, "Here."
Ian Bremmer:
It's going to extradite you. Yeah.
Emily Bazelon:
They hand you over. And so yes, you're talking about a big disruption to American law. One thing that's important to note is that in almost every state, it is legal to self-administer an abortion. So that means the person receiving the pills and taking them is not subject to criminal charges. And that's just important for thinking about who's taking risks here and how this all lands.
Ian Bremmer:
That's even true in states that have banned abortion as a legal right.
Emily Bazelon:
Yes. There are only a couple of exceptions to that in all of the 50 states and it's not totally clear how those laws apply.
Ian Bremmer:
So the doctors are the ones that are actually facing the obligation and the liability?
Emily Bazelon:
That's what it looks like. Yes.
Ian Bremmer:
That's interesting. Why is it that the states that consider abortion to truly be a murder would actually say, "We're not going to prosecute the person who's committing the murder."
Emily Bazelon:
It's a great question. I think it has to do with the evolution of the movement to oppose abortion. That movement has gone from blaming women and trying to punish them to trying to present itself as protecting them and their health and rights. Now, whether you think that's true or not, if you're going that way and you say, "We're the protectors of women," then you don't subject them to criminal charges, you say it's those bad abortion providers who we're going to go after on your behalf.
Ian Bremmer:
Now, that's not very Handmaid's Tale?
Emily Bazelon:
It's not directly Handmaid's Tale, it's true. And one of the reasons for that is otherwise you get accused of being the Handmaid's Tale.
Ian Bremmer:
Well glad we cleared that up. Okay, so let's move on to something a lot easier, which is the ethics of the Supreme Court. I have certainly been surprised to see Clarence Thomas so heavily on our bingo cards right now. Talk a little bit about what is at stake with this case?
Emily Bazelon:
So Clarence Thomas is really testing a very poor design at the Supreme Court, which is that the justices themselves are not subject to any code of judicial ethics. That's a bad design. Nobody should be above the law and have no oversight, but that is the way things have worked out. Federal judges on lower courts are subject to this code, but not the Supreme Court Justices themselves. There aren't any ways to police whether they recuse themselves from a case they might have an interest in, it's up them. In this case, what we're seeing is evidence that Justice Thomas took lavish gifts, travel, paying for the private school of a child whose guardian he was, from this one friend, a super rich guy named Harlan Crow. And when you look at the Ethics and Government Act, which is a law that Congress passed in the '70s, it looks like Thomas violated that law because you're supposed to disclose these kinds of gifts and you're not supposed to take them in the first place.
Ian Bremmer:
It violated it irrespective of the fact that there isn't a code of ethics for the Justices?
Emily Bazelon:
Exactly. Yes. This is a law, but the court has never acknowledged that the Supreme Court is subject to this particular law. They, it seems, might want to argue, "Well, we're a separate branch. You can't tell us what to do." That's a unresolved question. In order to resolve it-
Ian Bremmer:
It would ultimately have to be resolved by the Supreme Court, I take it?
Emily Bazelon:
Exactly. That's a problem.
Ian Bremmer:
That's a problem. It's turtles all the way up.
Emily Bazelon:
And to get started even figuring this out, the Biden administration would have to prosecute or bring some kind of action against one of the Justices, which has its whole own awkwardness to it. So there's really this problem here and the predicament that Justice Thomas had gotten the court in you might think would motivate Chief Justice Roberts, the court has his name on it, it's the Roberts Court, might motivate him to try to get the Justices together over the summer to come up with some way of binding themselves to some set of rules to address this problem. Because there's just really no question that the American public is losing faith in the Supreme Court. You look at its public approval ratings, the measures of-
Ian Bremmer:
Lowest in history.
Emily Bazelon:
Yes, lowest in history. People do not have faith that this is a non-political institution and that's what courts are supposed to be, at least in theory, they're supposed to be doing something called law that's separate from politics.
Ian Bremmer:
Now, it would've seemed to me, again, taking a view outside that a Supreme Court, which made a partisan decision of the outcome of a presidential election in the United States would have suffered more backlash in how partisan, how political it was perceived to be. And here, of course, talking about Bush versus Gore, than one where say, Judge Thomas doesn't bother to disclose the fact that he got some sweet deals from some random billionaire. What am I missing here?
Emily Bazelon:
Yeah, it's another great question. Well, you do see people's approval of the court sink after Bush versus Gore, but you're right, then you see it recover. The institution as a whole weathered that crisis. I think what's happening now is that there is a strong conservative majority that's going really far to the right on abortion, on voting rights, on other issues. All of its members were appointed by Republican presidents. The liberals on the other side, all appointed by Democrats. So you have partisan politics on the court, partisan affiliation lining up with ideology and you have these huge decisions in areas like abortion or access to guns that Americans really care about. So then when you layer on top of that, what looks like certainly the appearance of impropriety from Justice Thomas, some idea potentially of corruption, whether that's true or not, that kind of tarnish on the court, I think it gets to people in a particular way because the decisions are lining up with this crisis in the courts.
Ian Bremmer:
Now there's no remote finding of corruption at this point at all? There's no evidence of that at this point?
Emily Bazelon:
No. It's really all about appearance. But that's important, judges are supposed to appear unimpeachable so that they don't get impeached. Their integrity has to be really strong and pure and I think that's what's at issue here.
Ian Bremmer:
Is Thomas's wife part of this appearance thing? And is that fair in your view? I mean, we know that she was involved in trying to get people to overturn the outcome of the 2020 election.
Emily Bazelon:
Yeah. And she also was being paid in part at some point by Harlan Crow. So yes, I think she is part of the story, especially because last year there was a case before the Supreme Court involving the investigation into the January 6th. What kind of access should prosecutors and investigators have to text messages from Trump's staff, including Mark Meadows, his former chief of staff?
Ian Bremmer:
Who Ginni Thomas was texting.
Emily Bazelon:
And Ginni Thomas was texting her. Justice Thomas was the only vote against allowing access to these text messages. Then we see the messages, we see Ginni Thomas's text, that seems like a classic case where a Justice would recuse himself but he didn't do that.
Ian Bremmer:
Should have recused himself because he voted to protect his wife.
Emily Bazelon:
I mean, he may or may not have known he was doing that, but just the way the whole thing played out adds to this cloud over him in a way that's really not helpful to the reputation of the court.
Ian Bremmer:
Is it remotely possible to, I mean, appoint nonpartisan Justices in this environment? I mean, Justices used to get votes once they got through from pretty much everybody. That doesn't happen anymore.
Emily Bazelon:
You're right. I mean, there was this period, at least from the '40s to say the '80s or '90s, where lots of senators voted routinely for Supreme Court appointees, whether or not they were put forward by their own party. That era is lost to us now. And you can give a lot of explanations for that, Republicans like to blame the hearings about Robert Bork, in which Bork, who was this very conservative Reagan appointee, went down along partisan lines. Democrats like to say, "Well, conservatives really politicized the court by putting up nominees like Bork, by being so focused on tying the court to things like abortion rights, which have this sharp partisan divide in the United States." Whatever the reasons for it, we are at this extremely politicized moment for Supreme Court appointments in which it's gotten hard to imagine a Senate that was in the opposition party to the President approving anybody.
Ian Bremmer:
Now, I don't spend a lot of time thinking about the court aside from when you and I are talking, and I want to ask you, because you do more broadly, what does the United States lose? How much does it matter if the Supreme Court is seen to be just another partisan institution? So what are the implications?
Emily Bazelon:
So in the United States, if the Supreme Court is seriously out of step with the American public, it's fine for the American public to push back. The American public has a role to play in deciding what the Constitution means. In the end, this is a document that belongs to all of us and so democratic participation is key. And it doesn't matter if the court is out of step to the left or to the right, the public should be able to assert itself. The presidents who choose Supreme Court nominees, the senators who decide to confirm them, we elect those people. And so people's views of the court in the end should shape the court. That's how our system is set up.
There is a concern that internationally, the American Supreme Court has been a real symbol for a strong judiciary and that that is something other countries lack. We have a very strong, maybe too strong judiciary, but some other countries don't have strong enough judicial branches. And so when I talk to people who study constitutions in other countries, they worry that the diminishing reputation of the American Supreme Court could make people lose faith in courts elsewhere.
Ian Bremmer:
I also worry just what happens if Americans feel as if their courts have been captured by a small number of elites, by special interests, by people with money. I mean, we see already so many people believe that the regulatory system in the United States is captured by lobbies, by the private sector, by individuals with a lot of money, by corporations, and it makes people feel like the system is illegitimate. And do you think that is starting to happen with the feeling, with the perception of the Supreme Court? Is it that level?
Emily Bazelon:
Yeah, I think these things feed into each other actually because one of the things the court is doing is really policing the way federal agencies work, in a way that could give more power to corporate lobbyists. I think it depends, in your response to this, how much of an institutionalist you are. So for the Supreme Court Justices, they have a lot at stake in the vaunted, kind of Olympian image of the court. But if the court isn't living up to American's expectations, then Americans should be able to express that.
Ian Bremmer:
So I want to get to this recent case around the EPA, which is related to whether or not the Supreme Court is going to limit the ability of existing institutions to make regulations and inserting itself around wetlands, for example, arrest. Talk a little bit about the importance of this case.
Emily Bazelon:
Yeah. Well, first of all, you're right. We have a Supreme Court that is very skeptical of the power of federal agencies to enforce and make regulations. And of course, that is itself a stance that tends to give corporations more power because the EPA is the one saying to various companies, "You can't pollute our water or our air."
Ian Bremmer:
Unless the EPA is run by people that actually come from those industries and then say, "We'd like to facilitate that."
Emily Bazelon:
Yeah. Usually at least the career people, the people who are there forever at the EPA are not beholden, are not captured in the same way. And if you don't have the EPA making the rules, then you're going to have lobbyists influencing Congress directly. So probably having the EPA have more power is less capturing, though nothing's perfect, of course. So in this particular case, a couple in Idaho sued and the court has really cut back in response to this lawsuit on how much the EPA can regulate wetlands. The technical dispute in the case is about the word adjoining in the Clean Water Act. When is a wetland adjoining a US river or ocean, whatever? The court said that they had to be right up next to each other. But the upshot of this is that millions of acres that have been regulated up till now won't be anymore. And so when you think about the record of the Clean Water Act, which has been really important for preserving and cleaning up Americans waterways and rivers, now the EPA has a lot less reach to do that.
Ian Bremmer:
And is that a trend that we are seeing more broadly? Where are the other places that we're seeing the Supreme Court really infringe on the ability of American federal agencies to do their job, to regulate, to oversee?
Emily Bazelon:
Last year, the Supreme Court told the EPA it had much less power to regulate carbon emissions under the Clean Air Act. So what you're seeing so far are a lot of environmental consequences. There are upcoming lawsuits about the Food and Drug Administration, for example, that could broaden the court's skepticism about federal agencies.
Ian Bremmer:
So we also have these cases involving education right now, one on affirmative action, another on student loans. Hot button issues in both cases, where are they heading?
Emily Bazelon:
Well, it looked at oral argument like the Supreme Court was ready to end race-based affirmative action. These are lawsuits against Harvard and the University of North Carolina and the Justices seemed skeptical that race-based affirmative action is consistent with, the conservative Justices, with their view of the Constitution as being totally race blind. And there're also issues in that case about the way in which Asian American applicants have been treated, especially by Harvard.
Ian Bremmer:
Whose numbers have been kept down at Harvard compared to the scores that that they are receiving?
Emily Bazelon:
Yeah. Exactly. Not compared to the number of Asian Americans in the country, but compared to their SAT scores. Yes, for sure.
Ian Bremmer:
And the student loan issue?
Emily Bazelon:
And there's also a challenge to President Biden's Loan Forgiveness Program that's before the court and there is a boring but important technical problem with the plaintiff's case. Missouri is suing on behalf of its higher education loan authority saying that it will lose a lot of money because of the Loan Forgiveness. Not clear that that's really true at all or whether Missouri can just sue on behalf of this agency, which is not itself named in the suit. On the merits, I think President Biden's side has a challenge, which is that Biden forgave loans under the Heroes Act that was originally passed to address a national emergency after 9/11, it's been extended. The idea is that the loan forgiveness is necessary for pandemic relief.
Ian Bremmer:
Which is now over.
Emily Bazelon:
Right. The National Emergency for COVID ended in May. The Biden administration says, "Well, there can still be bad financial impacts on people rolling out from the pandemic." We'll see whether the court accepts that explanation.
Ian Bremmer:
As we head towards 2024 and an election that is almost certain to have the same level or more polarization concerns about the way it's going to be managed, oversight state by state. Talk about some of the things we should be watching out for in terms of the role of the judiciary?
Emily Bazelon:
Yeah. Well, another thing the Supreme Court is skeptical of is the reach of the Voting Rights Act. And so this term, there is a case in Alabama where Alabama did redistricting in a way that people argue dilutes the power of black and Latino voters to elect the candidate of their choice. If the court says that Alabama's map is fine, then you're just going to see less enforcement of an important part of the Voting Rights Act. And then there's another case from North Carolina also about the reach of the Voting Rights Act that is introducing a really extreme theory called the Independent State Legislature Theory, that in theory could give legislatures the power to overturn elections or set rules in a way where they get to pick the winner in a presidential election. It did not seem at oral argument that the Justices, even the conservative Justices, really had the stomach for the most extreme version of this Independent State Legislature Theory. But we don't have a decision in that North Carolina case yet, so that is still up for grabs.
Ian Bremmer:
Is there a useful distinction to be made here? I mean, I understand that the majority of the court is conservative in temperament and ideology and their belief about the role of founding documents in the US political system. They've been appointed by these political players, but it's not like they are working together to accomplish a political goal. In other words, there's no reason to believe the judiciary is not independent even though it's political. Is that a correct statement?
Emily Bazelon:
I think that's fair. I think when you look back historically, what you see is the conservative movement really energized about a few social issues, abortion, access to guns, religious liberties. And then you see a great deal of success in that movement propelling people onto the Supreme Court and the lower courts when Republicans are in power who are really interested in those issues and deeply committed to them. And that's politics. And it's the way in which politics in our constitutional system can shape American law. It doesn't mean the people who get onto the court aren't thinking independently, it just means that they come from this world the same way if liberals were pushing really hard for their people would be happening on the left.
Ian Bremmer:
Which they were in the war in court, for example, right?
Emily Bazelon:
Yes.
Ian Bremmer:
Historically?
Emily Bazelon:
Yes. Historically.
Ian Bremmer:
I say this only because I want people to see or sense the difference between a political leaning court in the United States, one way or the other, and a court in Turkey or a court in Hungary or God forbid, a court in Russia, which of course has no independence whatsoever, but actually is simply an arm of an authoritarian government. That is not what we are remotely talking about in the United States.
Emily Bazelon:
Exactly. And it's an important distinction and you can see it in the court's responses to the 2020 election challenges from former President Trump. If the court was merely an instrument of a strong man, they would've gone along with those challenges, which had very little evidence behind them.
Ian Bremmer:
And they all failed.
Emily Bazelon:
They all failed. The court said, "No." It's not interested in saying, "We are a tool of President Trump the way the constitutional court in Hungary has unfortunately become a tool of Viktor Orbán."
Ian Bremmer:
So can we say, not a fact free zone? The independence of the judiciary in that regard continues to be strong.
Emily Bazelon:
Yes. I think that's absolutely true. It's also true that on these big questions about what equality means or liberty, how that affects things like abortion or access to guns or religion, there's a lot of wiggle room here. And so you can be a perfectly independent judge or justice and come to a really different conclusion based on your ideological beliefs and values. And I think that's what we see in these big cases where you see conservatives dividing from liberals.
Ian Bremmer:
Well, thanks for helping explain that. Emily Bazelon, great to see you.
Emily Bazelon:
Thanks so much for having me.
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.
Announcer 3:
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 porpoise, 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.
Subscribe to the GZERO World Podcast on Apple Podcasts, Spotify, Stitcher, or your preferred podcast platform, to receive new episodes as soon as they're published.
- 3 key Supreme Court decisions expected in June 2023 ›
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- Senators want ethics rules for SCOTUS ›
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Preet Bharara on the legal troubles of former President Trump
The rule of law is a cornerstone of democracy. Ensuring that everyone is treated equally in the eyes of the law, including public officials, is a critical component of a healthy, thriving democratic government. On GZERO World, Ian Bremmer speaks with former US Attorney for the Southern District of NY and podcast host Preet Bharara to delve into the legal struggles of former President Trump. There is a strong possibility Trump will face a criminal trial as he runs for president in 2024, so the stakes have never been higher.
Bharara shares his analysis of the potential implications for executive privilege and its impact on democracy. In his wide-ranging conversation with Bremmer, they also explore the legal aspects of other news topics, including the ethical controversy surrounding Clarence Thomas and the ongoing Department of Justice investigation into the Ukraine leak.
Note: this interview appeared in an episode of GZERO World with Ian Bremmer on April 17, 2023, "Parsing Donald Trump's indictment
- Could Trump win the presidency even if convicted of a crime? ›
- Parsing Donald Trump's indictment ›
- Podcast: Trumped up charges? The law & politics of investigating a president's crimes ›
- Bharara: Clarence Thomas' donor trips may not be illegal, but not a good look ›
- Trump sexual abuse verdict won't hurt him with GOP - GZERO Media ›
The official formal group photograph of the current U.S. Supreme Court.
Senators want ethics rules for SCOTUS
Two US Senators introduced a bill on Wednesday that would require the Supreme Court to introduce its own code of ethics. The bipartisan bill – sponsored by Republican Sen. Lisa Murkowski and Sen. Angus King, an Independent who caucuses with Democrats – would not dictate the standards but simply require the court to get on it within a year.
The fact that Supreme Court justices are not required to adhere to the same ethics rules as federal justices has come into sharp focus since a recent investigation by ProPublica found that Justice Clarence Thomas has taken lavish trips paid for by wealthy Republican donor Harlan Crow. (For context, federal employees have rules for giving and receiving gifts.)
Thomas, who rose to the bench in 1991 after the controversial Anita Hill hearing, did not include these trips in his financial disclosures. He also failed to note that Crow bought a house from him in Savannah, Georgia, where Thomas’s mother continues to live … rent-free. Justice Neil Gorsuch also failed to disclose crucial business dealings.
Similar proposals for ethical standards have been floated recently by Democrats in the House and the Senate. But Murkowski and King hope that this more lenient bill can get buy-in from both parties in the upper chamber, where Dems have a razor-thin majority.
Parsing Donald Trump's indictment
Preet Bharara, former US attorney for the Southern District of New York, stopped by GZERO World to discuss three big legal stories in the news: the charges facing former US President Donald Trump, Supreme Court Justice Clarence Thomas's gifts from a billionaire Republican donor, and the recent classified documents leak.
According to Bharara, the charges leveled against the Trump Organization and its CFO, Allen Weisselberg, could establish a precedent for justice and the rule of law, with significant consequences for American democracy in the future. Bharara ranked the severity of the three other potential charges that could be brought against former President Trump, with the conduct relating to the January 6th riot "being the most severe."
Though this is not the first US president to be charged with a crime, Trump's plans to run for president in 2024 while fighting criminal charges could have wide-ranging implications for the future of democracy.
"There are people who are not allies of Trump, who I think are responsibly raising the question, "What is the level of seriousness of a crime on the part of a former president that justifies bringing it?" Bharara tells Ian Bremmer, "And they're really great arguments and I struggle with this."
- Trump's indictment is problematic ›
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- Podcast: Trumped up charges? The law & politics of investigating a president's crimes ›
- Bharara: Clarence Thomas' donor trips may not be illegal, but not a good look ›
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- Why you should care about the legal case against the Trump Organization - GZERO Media ›
- Trump's uncertain future amid new indictments - GZERO Media ›
- Trump indicted (again) - GZERO Media ›
Podcast: Trumped up charges? The law & politics of investigating a president's crimes
Listen: Where democracy is built upon the principles of rule of law, legal challenges faced by public officials are a sober matter. On the GZERO World podcast, Ian Bremmer sits down with former US Attorney for the Southern District of NY and podcast host, Preet Bharara. Together, they explore the current state of the US legal system, the hurdles for keeping public officials to account, and the potential implications for democracy when a former president is criminally charged by federal courts. Bharara draws from his extensive experience as a prosecutor to offer insightful perspectives on pressing legal concerns, including the role of executive privilege in government accountability. The duo also takes a deep dive into news headlines, addressing the ethical dilemma surrounding Supreme Court Justice Clarence Thomas and the ongoing Department of Justice investigation into the Ukraine leak.
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.
Announcer 4:
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.
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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