September 20, 2025 • 49 mins
It’s our first Saturday drop! Nate and Maria host former assistant US Attorney Elie Honig to discuss his new book, a brisk history of special counsels — plagued by politics, checked by presidents, declawed under Trump’s second term — and why rescuing the office matters.
Find Elie’s book here: When You Come At The King
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:15):
Pushkin. Welcome back to Risky Business, a show about making
better decisions. I'm Maria Kanikova.
Speaker 2 (00:31):
And I'm Nate Silver.
Speaker 1 (00:33):
So today on the show, we have a special guest
for you, Ellie Honig, who is CNN's senior legal analyst,
former federal prosecutor, author of two prior bestsellers, Hatchetman and Untouchable,
and he has a new book coming out called When
You've Come at the King.
Speaker 3 (00:54):
It was great.
Speaker 1 (00:54):
I really enjoyed it. Ellie and I actually first met
many years ago when I was working on my book
The Confidence Game about con artists, and we were introduced
by his former BOSSU pret Berrara, and both of them
were incredibly hopeful to me in yeah, getting the background
for that, getting case information and basically taking down some
(01:15):
of the con artists, some of the bad guys who
I took down in my book. So it's uh, it's
great to be uh to be here with you. Congratulations
on the book which is out this week.
Speaker 3 (01:26):
Thank you, Thank you so Maria. You you know I
had you on my podcast, if you remember, I did
a mob podcast and I needed somebody to help me
deep dive the psychology of what goes into a gangster.
You had written about that for some magazine outlet and
some outlet or other whatever it's called. And Nate, you
are in the book, by the way, you are in
(01:46):
this book.
Speaker 1 (01:48):
Nate, you're on page Nate, you're on page one fifty three.
Speaker 3 (01:51):
Pretty good. How long is this book?
Speaker 2 (01:53):
I mean, is it the first half?
Speaker 3 (01:55):
You're in exactly halftime.
Speaker 1 (01:56):
Yes, it's about three hundred pages long, so you're about
le halfway through. On the Hillary Clinton emails and whether
the cam An investigation ended up costing her the.
Speaker 3 (02:06):
Election, you got it. And and Nate you your conclusion
I think was boiled down was basically probably. But we
can't know for sure, right, we can't know for sure.
I've blurred it all out of my head.
Speaker 1 (02:18):
But yeah, the book takes us through the history of
I don't know what to call it, Special Counsel and
dependent council. Depending on the point in time that we're
talking about, it's called different things. But before we move forward,
can you just define what this is what this office
actually is, regardless of name.
Speaker 3 (02:38):
So it's changed a bit over the years, but currently
we call it special Counsel and this is an official
who can be appointed by the United States Attorney General
in order to conduct a criminal investigation that would pose
a conflict of interest for DOJ itself or other quote
extraordinary circumstances. So conflict of interest would mean something like,
we're investigating the president, who can hire and fire the
(03:01):
attorney general. But also plenty of ags have pointed to
extraordinary circumstances, which means essentially whatever the AG feels like me,
and so there's definitely some wiggle room there. But it's
a prosecutor within DJ appointed by the Attorney General for
a specific high profile case.
Speaker 2 (03:18):
And by the way, I'm I'm going to represent that
I'm guessing substantial minority, maybe majority, of a civil bulletin
audience who thinks.
Speaker 3 (03:31):
All this legal stuff. They just don't really.
Speaker 2 (03:33):
Have the compartment for it in their brain, right. They
like elections, they like strategy, they like maybe they like
cultural fights. But the legal stuff. Yeah, so I'm gonna
be the I'm gonna ask the dumb questions.
Speaker 3 (03:45):
Thank you for asking that. No, but listen, this book
is No. I don't do legal ease, and if I do,
I will explain it. But like, what drives this book
is the stories. I mean, I interviewed thirty five thirty
six people on record. By the way, nobody. I didn't
allow anybody to be anonymous. People who from WA Aregate
prosecutors up until Donald Trump and Jack Smith that case.
I mean, I don't talk to Donald Trump and Jack Smith,
(04:06):
but people lawyers on the case. So what really drives us.
I love the stories, I love the drama of it.
And what you see is it's so human, Like we
look at the law as a set of written statutes
and rules. But having been a lawyer and a prosecutor
for fourteen years and having written this book, I guess
one of the major themes is it's so much about
(04:26):
the human element, the human emotions, motivations, frailties, and as
much as we try to design these systems, and that's important,
the actual people are way more important.
Speaker 1 (04:36):
Yeah, And I think we get at that from the
title of the book. The title comes from you know,
one of the best TV shows of all time, Slash,
one of the best political science books of all time.
So When You Come at the King is originally Machiavelli,
but we know it from Omar in the Wire, and
that was a very very I think that's such an
interesting choice because Omar is not exactly like the hero
(05:00):
that you would think that, you know, a prosecutor would
choose to title his book, and he has a very
he has a code of ethics, right, he has his
code of morals, but it's very specific. So I just
wanted to before we get into, you know, the important
stuff in the book, I wanted to ask about the
inspiration behind your title and kind of the background of that.
Speaker 3 (05:20):
Taken from Omar and The Wire. Omar, of course, for
those who haven't watched The Wire is sort of the
lone wolfson pace Michael K. Williams May the late great
Michael K. Williams. He is the lone Wolf assassin basically,
and one of it there's a famous scene where he says,
you come at the King, you best not miss now.
I will confess I had a sense that that maybe
went pre Omar, and as you said, Maria, it did
(05:42):
go back, goes back to Machiavelli, Emerson, others, but let's
be real, nobody said it as well as Omar. And
there's really two things that motivate I didn't have the
title one. I mean, I don't know if you tend
to have your titles when you start your books. I haven't.
I come up with them as I go, right, But
two things. One, the stakes for all involved. I mean
I talk to these people who are very accomplished prosecutors,
(06:03):
defense lawyers, white House officials, and they all basically were
like I'm paraphrasing, you know, but they all basically said,
we knew that this is this was all I'd be
remembered for. This was life or death politically, legally, et cetera, professionally.
The other thing is the retribution angle, right, That's the
point of what Omar saying, if you're gonna come after
the king, you best not miss otherwise there will be retribution.
(06:23):
And that I think reflects very much what's happening certainly
right now with Donald Trump.
Speaker 1 (06:28):
Yes, I think retribution has definitely been part of the
both implicit and explicit motives for for a long time.
The office, and what I say the office, I mean
the Office of Special Counsel is first created after Watergate, right,
not before, like when Watergate happens, this doesn't even exist.
(06:49):
It leads to the creation. I somehow didn't realize that.
But you know, can we just talk about you know, first,
why now, like why you decided to write this right now,
And secondly, like why why we're starting you know, why
you decided to take kind of this historical approach as
opposed to just like boom, we're going to start with
Donald Trump put us right in the.
Speaker 3 (07:09):
I mean, look, there are two chapters here about Donald Trump,
the two big Trump investigations. But the end part, and
this is the why now, is geared at what's happening
right now, because I argue in the book it's fundamentally
different in kind than anything we've seen throughout our history. Now,
I wanted to go back. I actually wondered when was
the first outside we'll just call them outside prosecutors, because,
as you say, the nomenclature changes. But you know, Watergate's
(07:30):
the first one that I think registered for all of
you know, I mean, it's before all three of our times.
I will say I was born in nineteen seventy five,
so it was over by then. But the first one
was Grant Ulysses ays Grant. The reason I put it
in there is because so many of the moves we've
become accustomed to we're being done back then. Like it's
a long story, I tell it in like one page,
(07:50):
but basically there was a kickback scheme with whiskey distillers
in Missouri, and so Grant gets pressured into appointing an
outside process of course, right, And what ends up happening.
The outside prosecutor starts, you know, picking up some low,
low hanging fruit, and then he starts getting close to Grant,
and Grant fires him, and then the media attacks Grant,
and then Grant says, the media is out to get me.
I mean, it's all so familiar. We've seen it happen many,
(08:12):
many times. But Watergate, you're right, I mean people may
not realize. John Dean, the famous you know, Watergate witness,
the former White House counsel, said to me it was
improv There was no at that time, special council, independent
council laws, regulations anything that we got them right after
because of Watergate. But they were making it up as
they went along. They did a pretty good job. But
(08:33):
you know that that was the motivation, that was the
reason we have these rules now.
Speaker 1 (08:39):
And you know, even back then, though, I found it
really interesting that they were scared that their investigation would
be shut down, yeah, and that the evidence would be destroyed.
So I actually thought it was really interesting that people
brought files home and hid them to try to make
sure that they would actually have evidence to prosecute. That
(09:00):
was not something we learned in US history, you know
that even back then, because to me it seemed, you know,
I think, because I'm not a lawyer, I don't know,
don't have a legal background. So maybe this, you know,
as just a consumer of this, it's probably quite naive
of me, But I had thought that this kind of
threat to you know, to the prosecution was more of
(09:22):
a modern thing, right, was something that just happened basically. Now,
I didn't realize that this is something that people had
been living with, and that the office was partly created
to try to mitigate that.
Speaker 3 (09:33):
Exactly.
Speaker 1 (09:33):
We protect the people who were trying to run these investigations.
Speaker 3 (09:37):
So the book opens with the story from Jill Wyne Banks,
who was then thirty years old, one of the Watergate prosecutors,
and she told me candidly she would bring photo copies,
not originals, but photocopies of key pieces of evidence, notes,
witness summaries home and put them in a box because
they were afraid that Nixon's goons would ransack the office,
and that sort of ended up happening and she says
(09:59):
to me something like, I don't know how smartly I
thought through my options, and it may have been on
the borderline of what we call Rule six e, which
is like the grand jury secrecy rules, she said, but
we like, in order to protect our investigation, we had
to do that. And I love the historical echoes in
the book because if you fast forward forty some years,
the Mueller team did almost the same thing, higher tech,
(10:20):
but they you know, I talked to FBI agents and
prosecutors on that team. They said, we made a point
of backing up like you back up your files every
day to an off site server, because we were worried
that same thing that Trump's people would come in and
take over and shut down the office. So when you
see those echoes, I think it tells us something about
sort of the common instinct for self preservation that both
(10:42):
presidents and prosecutors have.
Speaker 2 (10:45):
There's got to be some like Kinkos in Arlington, Virginia
where they know every government secret from like nineteen seventy
five until what do people saw photocopy in two thousand
and five or something.
Speaker 3 (10:55):
I can I tell you something along those lines of day.
So there's a moment in here when I'm talking about
the Star Report, which I don't know how old you
all are, but that, right, this is the big Ken
Star Report, and I was trying to explain to people.
Speaker 1 (11:05):
Are fifty shades of gray right exactly?
Speaker 3 (11:08):
Yeah, A how this broke was the first real massive
Internet moment. I mean, I remember I was in law
school at the time. I remember download download download things
were crashing, right, and there's all these articles about like
can this new thing called the internet support this? But
at one point I wrote, however many copies Borders order? Borders,
you guys both know was the big bookstore, right. I
spent half our lives in Borders as kids. And my
(11:32):
one of my copy editors, a much younger person, said,
you're going to have to drop a parenthetical explaining what
that is. So there is a section there where I
say borders and it's sad, but I had to have
borders Parenz, which used to be a major national bookstore Kinkos.
I think Faul would fall into the same category eight this.
Speaker 1 (11:50):
I think the Star Report was a really you know,
as I could have told you before we started taping.
My first I was still in I think elementary school,
you know, when this was all happening, and it's my
first political memory, like my first big political memory was
you know, Monica Lewinski and Star and all of this.
I didn't read it too little.
Speaker 3 (12:10):
It was allowed to. It was a little too.
Speaker 1 (12:12):
Tittilating for the likes of me. But you know, it
was a really I think interesting moment where a lot
of people's political consciousness were awakened, like especially people who
hadn't lived through Watergate, right, who hadn't who hadn't kind
of seen the start of this. So I'd love to
just kind of talk through that as just like a
(12:34):
big historical moment and what it meant for how the
office went forward, because, as you point out, Clinton was
the last one to renew the law that was then
take you know, was then used to try to take him.
Speaker 3 (12:47):
Down immediately boomerang. Yeah, look, Ken Starr killed the Independent
Council Law. I mean, the Independent Council Law was passed
after Watergate, signed by Jimmy Carter, and it died at Sunset.
Congress let it die in ninety nine, but it would
come up every five or ten years for renewal, and
basically every president didn't like it. Ronald Reagan's DJ concluded
(13:09):
that it was unconstitutional, but he was like, politically, he
felt he had no choice. He had to sign it.
When it came up for the final reauthorization in ninety four,
George H. W. Bush, the father who Clinton had just
defeated in the ninety two election, counseled him like, as
a fellow president, you're not gonna want to sign this thing.
But Clinton also felt he had no choice signs it
and then it becomes the bane of his existence. And
(13:31):
you know, that is such a memorable moment. I mean,
I was in law school. People may not realize how
much on the razor's edge we were. I mean there
was a moment when Bill Clinton calls a press conference
and we didn't know is he resigning or is Al
Gore going to be president by tonight? And you know,
I talk about how some of the indelible lines I
give the backstory. Right, the two probably most famous lines
(13:53):
or infamous lines from that whole thing are, I did
not have sexual relations with that woman, miss Lumis. That's
my Clinton and the other one is it depends on
what the meaning of is is. And I give the
backstory on both of them. I won't give it all
the way, but I'll just tell you that one of
the people I intern was the prosecute so ken Star
passed away a few years ago, but his number two
was a guy named Saul Weisenberg, who asked the question
(14:15):
that Bill Clinton answered, it depends on what the meaning
of is is. I also talked to Bill Clinton's lawyers,
Whore and the White House lawyers who were by his side.
But I asked Weisenberg. I said, how did you feel
when he gave you that answer? And Wisemberg said he
was very honest. He goes, Look, I'll tell you the truth.
That was a four hour timeframe that we had. That
was about three hours in and up to that point
Clinton was kicking our ass. We didn't get anything out
(14:38):
of him. He looked in control, he goes, But when
he gave that answer, he looked so smarty, and what
he said was so ridiculous. He was a former DOJ lawyer.
He said, if I was trying this case to a jury,
I would have turned to them and been like, can
you believe this guy? And of course that's you know,
that's the moment that lives on from that. That's a
precipitous moment in history right there.
Speaker 2 (14:56):
When did this all kind of become a partisan hellscape
in your opinion, Elias? I mean, how much it was
during the Clinton years or has it just been upping
the ante one presidency at a time.
Speaker 3 (15:10):
Yeah, it's always been somewhat. I don't know if partisan
in the early days is quite the right word, but
it's always been a battle. I mean, everyone's always circled
the wagons and geared up for survival Watergate. When you
look back at it is shockingly non partisan, right like
people within DJ stood up to him. I have scenes
in there on the Sunday morning after the Saturday Night
(15:31):
massacre where the team is wondering, have we all been.
Speaker 1 (15:34):
By the way, for our listeners who don't know, Saturday
Night ostacer.
Speaker 3 (15:37):
That was when Nixon fired the special counsel, and then
the Attorney General and Deputy Attorney General resigned rather than fire,
So the three top officials were all gone. And I
talked to the players. They they came in Sunday morning
and they didn't know there was actually an erroneous report
in the top New York Times that they had all
been fired, but they hadn't, and Archibald Cox comes in
and says to them, basically, you keep doing this work,
don't give him what he wants. Two weeks later, there's
(15:59):
a new special prosecutor and ends up, you know, ends
up resulting in Nixon's resignation. I think it got really ugly,
you know Clinton. I think Clinton ken starrs when people
really took their sides and people really dug in. And
we've seen that certainly with the Jack Smith Trump case,
both sides, certainly with the Joe Biden Robert her classified
(16:19):
documents case. I mean, I think everything since Clinton has
been pretty politicized. Maybe not the Scooter Libby Pat Fitzgerald case.
That one was George Bush was the president was like
he was fairly supportive of that investigation happening, but everything
else has become just partisan warfare since then.
Speaker 1 (16:36):
That's interesting that you would put it that in that
modern era, because you know, in the book, when you
kind of give our Whiskey scandal that we started the
show with, you say that that was really the playbook
that's kind of still being used to this day, right
that we've had the bones of this for centuries.
Speaker 3 (16:54):
Yeah, yeah, I mean, I mean the moves that were made,
like why does Grant appoint a special counsel because he
feels political pressure because his opponent says, I found this
scandal and Greg goes, well, well, hold on, we're going
to take care of it. We're going to appoint an
independent guy. That guy goes out, he starts making headway.
When he gets too close, Grant fires. Grant actually tries
to do a move that Nixon did a century later.
(17:16):
Grant tries to have a military tributal takeover. Nixon tried
to have the CIA takeover, but both of them failed,
and ultimately it becomes finger pointing both ways, and the
media says he's you know, he's covering up, and Grant says,
the media is. I mean, he might as well have
called it fake news. He didn't use that phrase, but
he all but says that in eighteen seventies speak. So
(17:36):
I think it's important to understand, you know, people who've
only been really following this since Muller think it's brand new.
What's happening now Trump two point zero is brand new.
But really from Grant through the Jack Smith case, there's
a lot of connective tissue. Yeah.
Speaker 2 (17:53):
I always try to emphasize when people are understanding the
current very polarized moment in politics that like, you know,
maybe my generation of political reporters, or maybe maybe one
generation older than me, probably right, but not two generations
we have grew up in like the lore of post
World War two elections, right, Yeah, the fifties, the sixties,
(18:16):
the seventies, and if you look historically, this is a
time of a very low polarization relative to the baseline,
and a time when the fifties in particular, you know,
the United States is doing very well. We had a
common enemy, we defeated in World War Two. You have
this baby boom, this prosperity boom. Right, we have the
space race. Right, things are looking up. That's so great
(18:38):
if you're a minority in the nineteen fifties or a
woman or day or whatever else. Right, But like, but
you know, people, society had less conflic than it does now.
And you go before that to the turn of the
previous century, we had a civil war, Right, partisanship is
kind of the norm. But Ellie, but you do think that, like,
it's not just MSNBC exaggeration when people say what Trump
(19:02):
is doing is is much worse. Half an order of
magnitude worse or an order magnitude worse than we've seen before.
Speaker 3 (19:10):
I often disagree with MSNBC, but I do think it's
accurate to say that about what's happening right now this part,
because what's different is every president up until now, and
I include Trump won in that every president up until
now has at least understood there does need to be
some sort of outside prosecutorial mechanism, whether they're investigating the
(19:30):
president or someone around him, or maybe they're kind of quiet.
There wasn't much of this during the Bush or Obama eras,
but that I do need to respect this, I do
need to let it go. Look, every president or most
presidents who've been involved in these cases have tried to
undermine them or obstruct them to some degree. But Trump
has just come in now and said, oh, we're not
even going down that road any There will be no
(19:52):
inward looking investigation at me, Donald Trump or anyone around me.
And more to the point, and this gets to the title,
anyone who looked at me in the past is now
getting investigated. It's when you come at the king and
also Nate to your other point, you know, I spoke
to Carl Bernstein for this book, who I know through CNN.
Of course, Carl was the legendary Washington Post reporter who
(20:13):
helped break the whole Watergate story. And I said, how
did this take so long to play out? Like Nixon
survived ten months after that Saturday night massacre during the
seventy two election. People may not realize this Watergate break
in happened before that. And Carl had already linked a
check from the burglars to a Nixon campaign, and Nixon
won wins, you know, fift forty nine states and five
(20:36):
hundred something electoral votes in seventy two. And I said
to Carl, like, how could this be? And he sort
of was, He's great, but he was sort of like, okay,
young man, let me explain something detail. But he basically
said things were different then. He said, by and large,
if the president denied something, you didn't automatically take him
at his word. But the public was much more likely
to give him the benefit of the doubt, as was Congress.
(20:58):
And he said things just move slower back then, like
it wasn't this twenty four hour boom boom news culture,
social media, so you know, but when I sat down,
the one point in the book where I sort of
cop out and just have a timeline is because it's
so confusing, and I think I just said, boom boom,
this happened, This happened, this happened, and then we do analysis,
but like you have to have that because I cannot
believe how long it took for that to play on.
(21:19):
I can't believe how long he survived politically.
Speaker 1 (21:21):
Yeah, so you know, bridging, bridging those kind of two
things together kind of from the Watergate era two nights
question just now, and how different right Trump two point
zero is because you write in the book that he,
you know, Trump one point oh, the original hadn't quote
fully grasped the lovers of executive pet power, yeah, unquote,
(21:43):
and now he definitely has. Right the second time around,
he knows you.
Speaker 3 (21:47):
Just flip it off, Okay, exactly.
Speaker 1 (21:50):
That's what you do to that. And I was actually
curious under kind of the current regime, right, what has
happened right now? And kind of the really weird definition
of presidential immunity right kind of all of that. Do
we think that all of the cases that you write
about in the book, including Gate, could they happen today?
Speaker 3 (22:11):
Right?
Speaker 1 (22:11):
Like if something like that happened, if we had a
Watergate level scandal right now.
Speaker 3 (22:16):
The realistic answer is today, you know, September of twenty
twenty five. No, because Donald Trump's president and Pambondi's ag
And I mean, if if you had any question about
that to me, there was a sort of moment of
truth with Pambondy a few months ago when the signal
scandal broke out, right, Mike Waltz and others were using
this non secure app and discussing military plans. And I
point out in the book every time we've had any
(22:37):
sort of classified documents issue before, it's been at least
an investigation Hillary Clinton's email, Joe Biden, or an investigation
and an indictment. Donald Trump was indicted for that. And
Pam Bondi comes out three days after no investigation and says, no,
nothing to see here. We're not investigating and you all
should be focused on the success of the military strike
more than anything else. That was it. What would have
(22:58):
happened in almost any prior administration, as DJ would have
convened an investigation. We're taking this very seriously, and six
months later, maybe they would have issued some report, maybe
they would have found someone needed to be indicted, But
here Pambondi was just slammed the door before it could
even start. Now, I don't think it has to be
this way forever. And essentially the pitch I make in
the book is, whenever president comes next forty eight, whoever
(23:22):
that is, you, sir or ma'am, are going to find
that a lot of guardrails have been kicked down, and
it's gonna be mighty tempting for you to leave them down,
because who wants ethics, who wants restrictions on private profits?
Who wants special counsel, who wants inspectors general? But this
one is too important And if we just let this
one stay dead, then we're gonna have big problems down
(23:44):
the line.
Speaker 1 (23:48):
And we'll be back right after this.
Speaker 2 (24:06):
How bad was Watergate?
Speaker 3 (24:07):
Right?
Speaker 2 (24:07):
Because you hear about like a quarterback or baseball play,
you know, Reggie Jackson hit whatever forty seven home runs
in nineteen sixty eight or whatever?
Speaker 3 (24:16):
Are we doing like era inflation?
Speaker 2 (24:18):
Yeah, I mean, like if wanting it happened today.
Speaker 3 (24:22):
Would it be It's a good yeah, that's a good question.
I mean, let's think about it. So let's let's use
a real life example who do you want to be
the bad guys? Democrats are Republicans. Let's make democrats, let's
say democrats. Let's flip it. Let's flip it. If it
turned out that a group of burglars had broken into
the RNC or hacked into an R and C server
and downloaded a bunch of stuff, and then that was
(24:42):
tied back to let's say Joe Biden, and it turned
out Biden knew about it and was in on a
cover up, that'd be I think that'd be pretty bad, head,
I mean, right, But then again, I mean if you
look at some of this stuff Trump, I mean, January
sixth is hard to compare to anything, you know, the
possession of classified documents, but I think it's pretty bad.
Like I don't you know, I look back at Watergate
(25:04):
and see it as this had to happen. I look
back at ken Starr and think that was an out
of control prosecutor, and I think that's I'm certainly not
alone with that many many Republicans. I mean Clinton left
office in one Nate, this is up your alley with
a sixty six percent gallop approval rating, in large part
because of backlash over the ridiculous impeachment. And by the
(25:24):
way I talked to in the book, the prosecutor Bob Ray,
who replaced Ken Starr, comes in at the end and
he has the unfortunate the impeachment's already over, the failed impeachment.
He's got to decide, will you indict Bill Clinton? And
I said to him, Bob, you gotta be kidding me.
There's no way you're gonna indict in two thousand and
one Bill Clinton, for you'll never get a single vote
(25:46):
to convict him. And Bob basically ninety nine percent of
the way, And the book says, we had all the
pieces in place. If he didn't reach an agreement with us,
we would do what we had to do. Now, he
ended up paying a fine twenty five thousand dollars and
making a sort of Clintonian statement about misleading the American
public and giving up his bar license. But I mean,
I'm shocked by that. But Bob said, I'm glad that
(26:07):
I didn't it didn't come to that. I'm glad he
took a deal. And Bob said, by the way, if
we had indicted him, we could have had a situation
where we had a president sitting in the dock of
a criminal courtroom eight months later, nine months later when
nine to eleven happens, and that would have been Can
you imagine how horrible that would have been. So, you know,
it's crazy to me to think that he might have
indicted Clinton, But if Clinton had said I'm not giving
(26:27):
an inch, it's pretty clear that he would have been indicted.
He would have been equitted, but he would have been indicted.
Speaker 1 (26:33):
Yeah, it's it's really interesting to me when you know,
when reading this book, and obviously there were some cases
that I knew and others that I hadn't heard of before.
Speaker 3 (26:42):
It's no listen, nobody knows all these.
Speaker 1 (26:45):
But but you know, the this wide spectrum of seriousness
is actually quite eye opening.
Speaker 3 (26:54):
Right.
Speaker 1 (26:54):
You have you have things that you're like, okay, like
I understand, and then you have things that just seem petty,
and you're like, why are we investigating this? And then
you realize, and you point this out in the book,
that the blame isn't just with the special prosecutor. You know,
it's with people like Reno who say, yes, you know,
we should we should do this.
Speaker 3 (27:14):
Expand into Monica lays.
Speaker 1 (27:15):
Sad, Yeah, into Lewinsky and they're just some some the
scale of it seems totally off, and I feel like
maybe we wouldn't be where we are today if it
had been more uniformally applied.
Speaker 3 (27:29):
Well, I think it needs to be applied judicially. I
mean some of these cases where special councils were appointed
are preposterous. The first, this is one of my favorite facts,
the first ever independent council. So Watergate happens, we get
this new law. In seventy eight, the first ever special
council was appointed to our independent council was appointed to
investigate alleged cocaine use by a White House, a White
(27:52):
House advisor at Studio fifty four in Manhattan. I mean,
what could be more disco era than that? And you know,
the main guy they talked to was some Johnny C,
some drug guy at Studio fifty four who was like,
I think I might have given some guy a two.
And of course that didn't ever get charged, you know
they I mean a lot of times the right move
is you don't charge. But I think he was the
(28:13):
chief of staff. What's his name, Hamilton Jorden. It spelled
Jordan j O r Dam, but it's pronounced Jorden as
I learned during my audiobook, so it was the chief
of staff to the White House. In fact, the second
investigation was also a guy using coke. I mean, it
couldn't be more seventies. But I think I think the
bar has been raised, and I think people on both
sides politicians generally now understand we're not going to appoint
(28:36):
special counsel on pitdling matters. Although you could look at
Hunter Biden, that prosecutor, and I talked to Hunter's team,
Abby Lowell, his lawyer, who ferociously objected to this. It
was a gun and tax case on an Indi private individual.
And I think there's a lot of criticism to be
had of Merrick Garland for agreeing to turn that prosecutor,
(28:57):
David Wise, from a regular DOJ prosecutor. Then he decides
he wants to be special counsel, and Garland says sure,
but I think that was a mistake, and I think
I think you do have to look at what's the
seriousness of the charges here.
Speaker 2 (29:08):
So do you do you think Democrats came and missed
with Trump? Do they not go hard enough on the
best cases?
Speaker 3 (29:16):
So the short answers yes, And the person who I
laid most flame at in the book is Merrick Garland
because Jackson. The first sentence of the Jack Smith chapter
is jack Smith never had a chance because by the
time Merrick Garland wastes two years and appoints Jack Smith's
special counsel in November of twenty twenty two, almost two years.
I wrote in my prior book, which came out in
(29:38):
mid twenty twenty two, it's already too late. I quoted
the movie Searching for Bobby Fisher, which I don't know
if you guys seen a great movie, right, Chess Prodigy movie, yep,
And the kid says to his opponent, you've already lost.
You just don't know it yet. And it turned out
that was correct. There was never any way, if you
know how long federal prosecutions take, if you knew, which
we did, because I wrote about in my last book,
they were going to have to deal with the immunity issue.
(29:59):
It was going to go to the Supreme Court. There
was never any way jack Smith was going to get
his case done tried before the twenty twenty four election. Now,
if Trump had lost, okay, you know, you try him later.
But you always knew there was at least a fifty
to fifty chance Trump would win, So they took that
risk and they lost. But I think there's there's a
lot of discussion in here about why Merrick Garland, you
(30:20):
know the fact that Merrick Garland took too long, and look,
does that justify retribution? Absolutely not. But Trump has now
you know, they shot and missed, and Trump's now coming
back at them.
Speaker 1 (30:32):
And they're not the first ones. So one of the
things that you know, I was noting as I went
through the book was, you know, a lot of the
people who came at the King missed, right, Yeah, well
missed the mark.
Speaker 3 (30:43):
Yes, and some decided not to take the shot. I mean,
Robert her with Joe Biden is a good example. You know,
everyone remembers that Robert Herr said, oh, Biden's an elderly
man with a faulty memory, blah blah blah. That was
the big But but what everyone kind of missed is
that Robert Hurr found that Joe Biden knew he had
classified documents, like Joe Biden denied that for years. Anything
(31:03):
I had was in Adverton accidental, accidental. But there's a
tape we find out of Joe Biden's say to his ghostwriter,
I just found all the classified stuff downstairs, meaning in
his private office. So like I sort of said, look,
Robert Herr could have I think he did the right
thing by passing on this, but he could have written
a report that said, while I cannot indict the sitting
(31:25):
president under long standing DOJ policy, to talk about that
in the book, I do find that the evidence would
have been sufficient to uphold a criminal charge. There is
a criminal charge for knowingly mishandling classified documents. And really
that statement by Robert Herr is offered to explain his
calculation on the state of mind, the intent. He says, well,
(31:47):
it would have been hard to, you know, show a
jury that he was fully aware, fully remembered. He would
have been sympathetic to a jury. I mean, but look,
I talked to Bob Bauer, who's Biden's lawyer, who was
fiercely critical of her. Said he went too far, said
he put politically, you know, stuff he shouldn't have put
in his report. So I kind of leave some of
this to the reader, you know, I mean, I don't.
I will let people withdraw their own conclusion, some of them.
I think there's a definitive conclusion to be drawn. But O,
(32:09):
there's I think, you know, it depends how you see it.
So sometimes you know, Look, I make a point of
saying this in the book, and I say this as
someone who was a prosecutor for a long time. You
can't just judge prosecutors. I'm like, what's their stats? Like,
how man? How many people did you ring up here?
Because sometimes the right move the better move, and the
right move is to exercise your discretion against the charge.
And I think reasonable minds can differ on the Biden case,
(32:30):
but I think it's hard to say her was wrong.
Speaker 2 (32:34):
What do prosecutors not understand about politics?
Speaker 3 (32:40):
That's a great question question I want to say everything.
I mean, look, if you would talk to me six
years ago. Let's say I've been doing media stuff for
seven years now. In early in my media cra I
was fresh out of fourteen years of being a prosecutor.
And I have this very like purest notion of prosecutors.
Like what we do, especially at DJ is pure. It
is uninfected by politics. It is separate, apart, and probably
(33:02):
above from politics. The reality, however, is prosecution is part
of our It exists within our political system. I mean
why do we have DJ and an attorney general and
an executive branch. It's from the Constitution, where all we
all spring from the same document. And I think it's
a bit naive to say that like prosecutors are just
(33:23):
you know, where are white knights and never aware of policy.
I mean, look, this is part of the complexity of
Jack Smith. Like did he do his job in a straightforward,
aggressive way, yes, but there's no question he was rushing
like mad to get Trump tried before the twenty four election.
That's an uncomfortable intersection of politics and prosecution and people
(33:43):
who you know, I point, people sort of defended Jack
Smith reflexively. I think, because like there was a thing
for a while, anyone who's going after Trump is good
by me. I don't buy into that. But Jack Smith
initially demanded a trial date for Trump five months after
the indictment on a case with thirteen million pages of discovery.
That is impossible and unheard of. I actually looked up
(34:06):
the data. The average case in that court, in DC
Federal Court, and I'm just talking drug and gun rips
mostly took twenty eight months. The defendant got twenty eight
months to prep that two years and change, and Jack
Smith says, here, we have like the most complex, most
important case in US history, and he needs to go
to trial in five months. And I talked to Trump's
legal team and they said, correctly, like, there's no physical
(34:28):
way we could have gone through the evidence in that time.
And the only reason he wasn't able to do it
was because the immunity decision came in and everything I'll
put on hold, and then Trump won. So look, I
understand Jack Smith, I think has the closest to my
prosecutorial background of like cea target attack target. But I
also think you can't tell me that Jack Smith was
unaware of the looming election and trying to get his
(34:50):
case tried before the election. There's no rational observer who
could say that he had no idea and didn't care.
Of course he cared.
Speaker 1 (34:56):
Yeah, so we have a lot of, you know, important
questions about what should happen, you know, going forward. But
I do have to say that I did one piece
of outside research that I was inspired to do based
on your book, and you included a detail about Patrick Fitzgerald,
who was the special counsel who was put in charge
of investigating the Bush administration for leaking the identity of
(35:18):
a CIA agent. But that's not what I took away
from that chapter. What I took away was that he
was one of people's fifty sexiest men Alive of two
thousand and five.
Speaker 3 (35:30):
Yes, sexy, and he wasn't, but he was on the list.
Speaker 1 (35:33):
No, Matthew McConaughey that year was the sexiest man alive. Yes,
just edged him out. And I was like, what the fuck? Like,
who is this guy? So I looked him up and
my answer is what the fuck?
Speaker 3 (35:44):
Okay, So my editor, my editor, Maria, one of my
fact checkers and editors, who was a woman of about
your age, dropped and note in the manuscript saying, holy shit,
did you just disappoint me? Because because Pat Fitzger, she
did the same thing as you. She googled him. Now, child,
he's a good looking guy, right, Like he's above that average.
Speaker 1 (36:06):
He's maybe above average, I don't know, but fifty sexes
met alive? Like what was he doing as a special
prosecutor that made him?
Speaker 3 (36:15):
Like?
Speaker 1 (36:15):
What what a funny moment in history?
Speaker 3 (36:17):
Number one? Number one? That is, you know, objectively, he's
the only special counsel ever named sexiest anything. I've never seen.
You know, the guy from the Whiskey Rain was not
named sexiest anything by the New York Herald number two.
I think it's actually a good reminder of like I remember,
because I had just started at DJ. I started an
(36:39):
four and this investigation went crazy in five six oh
s and Fitzgerald had come out of the office I
had started in. I don't know him, I've never met him.
He didn't talk to me because he's sort of retired.
He lives like in I don't want to say where,
but he lives a quiet life out of the law now.
And he very politely declined. But everyone at the office
I worked at worshiped this guy. Loved him. He's hilarious,
(37:00):
he's brilliant, and I think just something he was the guy.
He was the Jack Smith, the Robert Muller of two
thousand and five six, and you know, like that what
kind of iconography or whatever? You know, I talk about
that with Muller, right, remember all the Muller action figures
and memes and He's gonna get you and all this.
You know, Muller's team made a really interesting points. I
(37:21):
talked to a couple of the prosecutors. They said, people
who were spreading that stuff Muller, she wrote, and you know,
Muller's gonna do it justice. And by the way, they
did the same thing the other side with John Durham,
and they did the same thing with Jack Smith. These
guys said to me, that was first of all, completely
a disservice to Robert Muller, the man who was an
American hero. The guy was shot in Vietnam through his
leg and returned. He was he was a recipient of
(37:44):
a purple heart. He's, you know, an FBI director during
nine to eleven. He hated that crap. He hated being,
you know, a Twitter meme for liberals. And they also
say it didn't help us, by the way, because it
gave the other side fuel to say, look, they're coming
after us. They've put this attack dog on us. And
(38:05):
so as much as some liberals had fun with their
Muller memes, Owlers own team hated it, and they talk
about that in the book.
Speaker 1 (38:12):
No, that's definitely sorry.
Speaker 3 (38:13):
About Pat Fitzgerald. By the way, I pretty handsome.
Speaker 1 (38:18):
It's okay, it's okay, But you know you aren't you
happy that you've inspired in dependent historical research on the
part of your readers.
Speaker 3 (38:26):
I hope for Pat fitz Cherald's spike right right about now.
That's a good sign.
Speaker 2 (38:36):
And we'll be right back after this break. Who would
you want to talk to that you weren't able to
pin me? And what would you ask them?
Speaker 3 (38:56):
That's a great question. The guy I wanted to talk
to most was Jim Comey, who takes a lot of
heat in this book. Now, Jim Comy again. I started
at the SDN y five months for something like that
after Jim Comy left, and I say in the book
when I got there, everyone who was already there loved
and worshiped Comy. They you know, Comy's like six set.
(39:17):
I've met him. I've had nice conversations with him in
green rooms and stuff. But Comy declined to speak with
me because we all know how shy Jim Comey is
about the meeting. That's a joke. But look, Jim Comy
takes a lot of shit in this book, and I
think he deserves it. The incident with Hillary Clinton's email
that we talked about before, Nate, that you looked into
whether it may have flipped the election, that is the
(39:39):
perfect example of why we need rules because what happened
was Loretta Lynch has our meeting on the tarmac with
Bill Clinton. They both say nothing inappropriate has happened, was discussed,
but Loretta Lynch herself said that meeting cast a shadow.
That's her word over the investigation. She showed at that
point of a point that a special council it was
actually briefly considered, but she doesn't. Instead, she says, I'm
going to just defer to the FBI, which is not
(40:00):
the way it works. The AG's in charge, Well, what
do you do. What happens when Jim Comy is told
I'm going to defer to you. He runs wild. He
doesn't abide by any of the rules or regulations. He
does whatever he wants. And that results in two announcements
shortly before the election, and since then, I don't think
anybody defends Comey other than himself. I mean, three different
attorneys general of both parties, a Democrat and two Republicans
(40:24):
have publicly said that Jim what Jim Comy did was
absolutely wrong, violated DJ norms. And so if you want
to know what happens when we try to investigate the president,
but we make it up as we go along, look
at Jim Comy, so he didn't he didn't want to
talk to me. I wish he would have.
Speaker 2 (40:38):
You get these things in like, if you're watching the
NFL or NHL or NBA whatever, right, where like the
decisions that officials make are not totally unbiased with respect
to the game score and the effect on the outcome
and the and the and the star power of the
athletes involved, right, And they'll say, well, look, we're trying
to manage the game. It's an entertainment product. And like, yeah,
(41:00):
if you're calling some tiki tech foul want to play
the determines the super Bowl, then that's not good game.
Speaker 3 (41:05):
As an Eagles fan, that hurts. But yeah that's the
first Chief super Bowl, which bullshit. But god, yeah, you
guys are spoiled. Now I'm not complaining, but yeah.
Speaker 2 (41:16):
I mean, is a better prosecutor unaware of politics or not? Right, Like,
let's say you have something that's.
Speaker 3 (41:23):
Gonna know Again, I don't buy into this ideal of
like the prosecutor locked in a vacuum and just looking
at the DOJ Justice Manual. Like, I think a good
prosecutor has to be aware of what the politics are,
especially in these special council cases because you're gonna have
the White House involved, You're going to be requesting information
from the White House. Congress may get involved the media,
(41:43):
but I think you have to keep your head down
and I mean it sounds pollyanna ish maybe, and do
your best to do the job without regard to the
certainly not the Okay, let me put it this way.
You have to be aware of an account for the politics,
but you should never be playing a partisan role. There's
a difference there. Right, you exist in a political universe.
But I think when it gets to a point where
(42:03):
people are with some credibility saying now that's something that
wouldn't ordinarily be done. Now you're potentially crossing the line
into partisanship.
Speaker 1 (42:13):
So I think that's a good moment to kind of
turn to your recommendations, right, which you kind of have
some end at the end of the book for kind
of going forward. Now that this office has been like
completely gutted, right and we don't even know what's going on,
we basically need to start over. What would your ideal
look like? How do how do we come back from
(42:33):
where we are now? How do we create an office
of whatever we call it? Independent Council Special whatever it is,
What do we do so that we have investigations that
are as impartial, you know, with all the caveats as possible,
and that actually keep people to account who need to
be held to account.
Speaker 3 (42:52):
Yeah. So, first of all, if you look at history,
every quarter century or so, we sort of revamped this, right,
we did one in the seventies, one in the nineties.
Now Here we are, and there is no perfect system.
There's no way I do lay out a system at
the end. There's no way I would tell you it's
infallible or every you know, there are certainly arguments against it,
(43:12):
but my first argument is some system is better than
no system. Just look at Jim Comy again. If you
want to freestyle all these get ready for more Comy's
second of all, the crux of what and in coming
up with this proposal A I looked at scholarly articles
and law review articles and various other legislative proposals. But
I also everyone I talked to for this book, all
(43:33):
the prosecutors, defense layers, white House officials, you name it.
I said, what how did the rules work for you?
What rule do you wish have been different? Which which
ones were effective. The number one thing I think we
need is a semi permanent special council within DJ nominated
by the President, confirmed by the Senate to give some
political look. There has to be some accountability. You can't
(43:54):
just have a super powerful prosecutor. The AG and all
the US attorneys have to be nominated to confirm this
person has the same powers, if not more, and so
needs to have that political legitimacy to It needs to
have a set term of years, sort of like the
FBI director serves for five years, although now Trump just
fires them at will, but for a long time it
was like ten years FBI director, I should say, but
(44:15):
you know, you just you inherited that Mueller carried over
over various administrations. And the person needs a semi permanent
staff of prosecutors, analysts, investigators, so you don't have this
scenario of Ken Starr, Bill Clinton go go. You know,
Jack Smith, Donald Trump go. So you are looking at
(44:35):
various things at once. But you know, one of the
concerns is aren't you going to incentivize this person to
always be breathing down the president's neck. My answer is
not if you have the right person. I mean not
if you have a person who understands prosecutorial restraint and
you know, so, Look, we rely on the people to
an extent. But I also think this person needs more
higher level protection against firing. I think we need to
(44:56):
more carefully vet our people who are on that team
for any outwards political biases. There have been people on
these teams who have been donors and been to campaign parties.
I think that's disastrous. I talked about one of Muller's
team members who was at the Hillary Clinton what was
supposed to be victory party but was not, and has donated.
And he has defended himself by saying, well, but I
(45:20):
didn't make any I didn't get anything wrong though. Whatever
my personal beliefs, I was able to put them aside.
And I said, yeah, but the other people on the
team said they had to stop you a couple of
times from doing things that were inappropriate. And I also said,
this person wouldn't talk to me either. But I also
used a baseball analogy. I said, this would be like
if in the seventh game of the World Series, the
home plate it was Yankees and Dodgers. I should have
(45:41):
used a Phillies Astros or something, but Yankees Dodgers. I said,
what if the homeplate umpire ended up with a high
game score? Like you know, the computer said he did
a good job. But on his Instagram page he was
wearing a Dodgers hat every day. Like would Yankees fans
be expected to accept that guy? Would the general public
be expected to accept that guy? So I think we
need to vet for political bias, you know, donations and
(46:05):
public statements, that kind of thing. It's not perfect, but
I do think I do reject the idea that like
I'm just going to throw my hands up and say
this is all broken, because that's not dealing with the problem.
That's just washing your hands of it.
Speaker 2 (46:18):
Ellie, how much could be done via legislation as opposed
to requiring constitutional changes.
Speaker 3 (46:23):
So you can do all of this basically, I think
by legislation, I'm not sure, you know, the current Congress
certainly wouldn't do it, and I'm not sure any But
the real fallback option A is legislation. Option B is
DJ can pass its own REGs. The current Special Council.
There is no law, it's just DJ reggs which are
passed by DJ itself. So those are the fallbacks I think,
(46:45):
And by the way, there would be a constitutional challenge.
There have been over time. It's the systems have always
withstood it. But that would happen as well.
Speaker 1 (46:54):
So, you know, for people who you know read this,
who kind of get acquainted with the history, who feel
your frustration about the current moment and kind of take
it to heart, what's kind of the big message that
you want people can have take away from this?
Speaker 3 (47:10):
The big message is we have been grappling with this
problem for a long time, but it's a problem we
have to grapple with. And as much as the prior
investigations have been highly imperfect, and a lot of the
book is about how flawed some of these investigations were,
we need this mechanism. It's a crucial check on the presidency.
And although Donald Trump will be you know, it will
(47:31):
be go dormant during the next three years, it can
come back and it needs to come back because otherwise
we're going to lose a key check on not just
presidential power, but runaway executive branch power as a whole.
Speaker 1 (47:45):
So, at the end of the day, are you an
optimist that that will happen or are you a pessimist?
Speaker 3 (47:49):
I tend to be an optimist. I mean, look, I've
been in media for seven years. I've seen all sorts
of crazy stuff happen. But I do believe in our institutions.
I do believe in our laws. I don't think they're perfect,
but I reject the hyperbolic. You know, I've heard people
say we'll never have another election. In twenty twenty eight,
Trump's going to run again. I've always rejected that. I
don't think that's going to happen. I don't think that's
I don't think he wants to do that. I do
(48:09):
believe our laws and our constitution are sturdy enough. They're imperfect,
but I think they're sturdy enough. They've stood up for
two hundred and fifty years, and I think if we
give them thought, they'll continue to stand up.
Speaker 1 (48:25):
I'm very happy to hear that. Thank you so much
for coming on and sharing your wisdom and your optimism
with us. Congrats again on the release of your new book,
When You Come at the King.
Speaker 3 (48:36):
Thanks very much, guys, I appreciate it was great talking
to you.
Speaker 1 (48:45):
Let us know what you think of the show. Reach
out to us at Risky Business at pushkin dot FM.
Risky Business is hosted by me Maria Kanakova.
Speaker 2 (48:53):
And by me Nate Silver. The show was a cool
production of Pushing Industries and iHeartMedia. This episode was produced
by Isaa Carter. Our associate producer is Sonia gerwit Lydia,
Jean Kott and Daphne Chen are our editors, and our
executive producer is Jacob Gold's mixing by Sarah Bruguer.
Speaker 1 (49:11):
If you like the show, please rate and review us
so other people can find us too, But once again,
only if you like us. We don't want those bad
reviews out there. Thanks for tuning in.
Pushkin. Welcome back to Risky Business, a show about making
better decisions. I'm Maria Kanikova.
Speaker 2 (00:31):
And I'm Nate Silver.
Speaker 1 (00:33):
So today on the show, we have a special guest
for you, Ellie Honig, who is CNN's senior legal analyst,
former federal prosecutor, author of two prior bestsellers, Hatchetman and Untouchable,
and he has a new book coming out called When
You've Come at the King.
Speaker 3 (00:54):
It was great.
Speaker 1 (00:54):
I really enjoyed it. Ellie and I actually first met
many years ago when I was working on my book
The Confidence Game about con artists, and we were introduced
by his former BOSSU pret Berrara, and both of them
were incredibly hopeful to me in yeah, getting the background
for that, getting case information and basically taking down some
(01:15):
of the con artists, some of the bad guys who
I took down in my book. So it's uh, it's
great to be uh to be here with you. Congratulations
on the book which is out this week.
Speaker 3 (01:26):
Thank you, Thank you so Maria. You you know I
had you on my podcast, if you remember, I did
a mob podcast and I needed somebody to help me
deep dive the psychology of what goes into a gangster.
You had written about that for some magazine outlet and
some outlet or other whatever it's called. And Nate, you
are in the book, by the way, you are in
(01:46):
this book.
Speaker 1 (01:48):
Nate, you're on page Nate, you're on page one fifty three.
Speaker 3 (01:51):
Pretty good. How long is this book?
Speaker 2 (01:53):
I mean, is it the first half?
Speaker 3 (01:55):
You're in exactly halftime.
Speaker 1 (01:56):
Yes, it's about three hundred pages long, so you're about
le halfway through. On the Hillary Clinton emails and whether
the cam An investigation ended up costing her the.
Speaker 3 (02:06):
Election, you got it. And and Nate you your conclusion
I think was boiled down was basically probably. But we
can't know for sure, right, we can't know for sure.
I've blurred it all out of my head.
Speaker 1 (02:18):
But yeah, the book takes us through the history of
I don't know what to call it, Special Counsel and
dependent council. Depending on the point in time that we're
talking about, it's called different things. But before we move forward,
can you just define what this is what this office
actually is, regardless of name.
Speaker 3 (02:38):
So it's changed a bit over the years, but currently
we call it special Counsel and this is an official
who can be appointed by the United States Attorney General
in order to conduct a criminal investigation that would pose
a conflict of interest for DOJ itself or other quote
extraordinary circumstances. So conflict of interest would mean something like,
we're investigating the president, who can hire and fire the
(03:01):
attorney general. But also plenty of ags have pointed to
extraordinary circumstances, which means essentially whatever the AG feels like me,
and so there's definitely some wiggle room there. But it's
a prosecutor within DJ appointed by the Attorney General for
a specific high profile case.
Speaker 2 (03:18):
And by the way, I'm I'm going to represent that
I'm guessing substantial minority, maybe majority, of a civil bulletin
audience who thinks.
Speaker 3 (03:31):
All this legal stuff. They just don't really.
Speaker 2 (03:33):
Have the compartment for it in their brain, right. They
like elections, they like strategy, they like maybe they like
cultural fights. But the legal stuff. Yeah, so I'm gonna
be the I'm gonna ask the dumb questions.
Speaker 3 (03:45):
Thank you for asking that. No, but listen, this book
is No. I don't do legal ease, and if I do,
I will explain it. But like, what drives this book
is the stories. I mean, I interviewed thirty five thirty
six people on record. By the way, nobody. I didn't
allow anybody to be anonymous. People who from WA Aregate
prosecutors up until Donald Trump and Jack Smith that case.
I mean, I don't talk to Donald Trump and Jack Smith,
(04:06):
but people lawyers on the case. So what really drives us.
I love the stories, I love the drama of it.
And what you see is it's so human, Like we
look at the law as a set of written statutes
and rules. But having been a lawyer and a prosecutor
for fourteen years and having written this book, I guess
one of the major themes is it's so much about
(04:26):
the human element, the human emotions, motivations, frailties, and as
much as we try to design these systems, and that's important,
the actual people are way more important.
Speaker 1 (04:36):
Yeah, And I think we get at that from the
title of the book. The title comes from you know,
one of the best TV shows of all time, Slash,
one of the best political science books of all time.
So When You Come at the King is originally Machiavelli,
but we know it from Omar in the Wire, and
that was a very very I think that's such an
interesting choice because Omar is not exactly like the hero
(05:00):
that you would think that, you know, a prosecutor would
choose to title his book, and he has a very
he has a code of ethics, right, he has his
code of morals, but it's very specific. So I just
wanted to before we get into, you know, the important
stuff in the book, I wanted to ask about the
inspiration behind your title and kind of the background of that.
Speaker 3 (05:20):
Taken from Omar and The Wire. Omar, of course, for
those who haven't watched The Wire is sort of the
lone wolfson pace Michael K. Williams May the late great
Michael K. Williams. He is the lone Wolf assassin basically,
and one of it there's a famous scene where he says,
you come at the King, you best not miss now.
I will confess I had a sense that that maybe
went pre Omar, and as you said, Maria, it did
(05:42):
go back, goes back to Machiavelli, Emerson, others, but let's
be real, nobody said it as well as Omar. And
there's really two things that motivate I didn't have the
title one. I mean, I don't know if you tend
to have your titles when you start your books. I haven't.
I come up with them as I go, right, But
two things. One, the stakes for all involved. I mean
I talk to these people who are very accomplished prosecutors,
(06:03):
defense lawyers, white House officials, and they all basically were
like I'm paraphrasing, you know, but they all basically said,
we knew that this is this was all I'd be
remembered for. This was life or death politically, legally, et cetera, professionally.
The other thing is the retribution angle, right, That's the
point of what Omar saying, if you're gonna come after
the king, you best not miss otherwise there will be retribution.
(06:23):
And that I think reflects very much what's happening certainly
right now with Donald Trump.
Speaker 1 (06:28):
Yes, I think retribution has definitely been part of the
both implicit and explicit motives for for a long time.
The office, and what I say the office, I mean
the Office of Special Counsel is first created after Watergate, right,
not before, like when Watergate happens, this doesn't even exist.
(06:49):
It leads to the creation. I somehow didn't realize that.
But you know, can we just talk about you know, first,
why now, like why you decided to write this right now,
And secondly, like why why we're starting you know, why
you decided to take kind of this historical approach as
opposed to just like boom, we're going to start with
Donald Trump put us right in the.
Speaker 3 (07:09):
I mean, look, there are two chapters here about Donald Trump,
the two big Trump investigations. But the end part, and
this is the why now, is geared at what's happening
right now, because I argue in the book it's fundamentally
different in kind than anything we've seen throughout our history. Now,
I wanted to go back. I actually wondered when was
the first outside we'll just call them outside prosecutors, because,
as you say, the nomenclature changes. But you know, Watergate's
(07:30):
the first one that I think registered for all of
you know, I mean, it's before all three of our times.
I will say I was born in nineteen seventy five,
so it was over by then. But the first one
was Grant Ulysses ays Grant. The reason I put it
in there is because so many of the moves we've
become accustomed to we're being done back then. Like it's
a long story, I tell it in like one page,
(07:50):
but basically there was a kickback scheme with whiskey distillers
in Missouri, and so Grant gets pressured into appointing an
outside process of course, right, And what ends up happening.
The outside prosecutor starts, you know, picking up some low,
low hanging fruit, and then he starts getting close to Grant,
and Grant fires him, and then the media attacks Grant,
and then Grant says, the media is out to get me.
I mean, it's all so familiar. We've seen it happen many,
(08:12):
many times. But Watergate, you're right, I mean people may
not realize. John Dean, the famous you know, Watergate witness,
the former White House counsel, said to me it was
improv There was no at that time, special council, independent
council laws, regulations anything that we got them right after
because of Watergate. But they were making it up as
they went along. They did a pretty good job. But
(08:33):
you know that that was the motivation, that was the
reason we have these rules now.
Speaker 1 (08:39):
And you know, even back then, though, I found it
really interesting that they were scared that their investigation would
be shut down, yeah, and that the evidence would be destroyed.
So I actually thought it was really interesting that people
brought files home and hid them to try to make
sure that they would actually have evidence to prosecute. That
(09:00):
was not something we learned in US history, you know
that even back then, because to me it seemed, you know,
I think, because I'm not a lawyer, I don't know,
don't have a legal background. So maybe this, you know,
as just a consumer of this, it's probably quite naive
of me, But I had thought that this kind of
threat to you know, to the prosecution was more of
(09:22):
a modern thing, right, was something that just happened basically. Now,
I didn't realize that this is something that people had
been living with, and that the office was partly created
to try to mitigate that.
Speaker 3 (09:33):
Exactly.
Speaker 1 (09:33):
We protect the people who were trying to run these investigations.
Speaker 3 (09:37):
So the book opens with the story from Jill Wyne Banks,
who was then thirty years old, one of the Watergate prosecutors,
and she told me candidly she would bring photo copies,
not originals, but photocopies of key pieces of evidence, notes,
witness summaries home and put them in a box because
they were afraid that Nixon's goons would ransack the office,
and that sort of ended up happening and she says
(09:59):
to me something like, I don't know how smartly I
thought through my options, and it may have been on
the borderline of what we call Rule six e, which
is like the grand jury secrecy rules, she said, but
we like, in order to protect our investigation, we had
to do that. And I love the historical echoes in
the book because if you fast forward forty some years,
the Mueller team did almost the same thing, higher tech,
(10:20):
but they you know, I talked to FBI agents and
prosecutors on that team. They said, we made a point
of backing up like you back up your files every
day to an off site server, because we were worried
that same thing that Trump's people would come in and
take over and shut down the office. So when you
see those echoes, I think it tells us something about
sort of the common instinct for self preservation that both
(10:42):
presidents and prosecutors have.
Speaker 2 (10:45):
There's got to be some like Kinkos in Arlington, Virginia
where they know every government secret from like nineteen seventy
five until what do people saw photocopy in two thousand
and five or something.
Speaker 3 (10:55):
I can I tell you something along those lines of day.
So there's a moment in here when I'm talking about
the Star Report, which I don't know how old you
all are, but that, right, this is the big Ken
Star Report, and I was trying to explain to people.
Speaker 1 (11:05):
Are fifty shades of gray right exactly?
Speaker 3 (11:08):
Yeah, A how this broke was the first real massive
Internet moment. I mean, I remember I was in law
school at the time. I remember download download download things
were crashing, right, and there's all these articles about like
can this new thing called the internet support this? But
at one point I wrote, however many copies Borders order? Borders,
you guys both know was the big bookstore, right. I
spent half our lives in Borders as kids. And my
(11:32):
one of my copy editors, a much younger person, said,
you're going to have to drop a parenthetical explaining what
that is. So there is a section there where I
say borders and it's sad, but I had to have
borders Parenz, which used to be a major national bookstore Kinkos.
I think Faul would fall into the same category eight this.
Speaker 1 (11:50):
I think the Star Report was a really you know,
as I could have told you before we started taping.
My first I was still in I think elementary school,
you know, when this was all happening, and it's my
first political memory, like my first big political memory was
you know, Monica Lewinski and Star and all of this.
I didn't read it too little.
Speaker 3 (12:10):
It was allowed to. It was a little too.
Speaker 1 (12:12):
Tittilating for the likes of me. But you know, it
was a really I think interesting moment where a lot
of people's political consciousness were awakened, like especially people who
hadn't lived through Watergate, right, who hadn't who hadn't kind
of seen the start of this. So I'd love to
just kind of talk through that as just like a
(12:34):
big historical moment and what it meant for how the
office went forward, because, as you point out, Clinton was
the last one to renew the law that was then
take you know, was then used to try to take him.
Speaker 3 (12:47):
Down immediately boomerang. Yeah, look, Ken Starr killed the Independent
Council Law. I mean, the Independent Council Law was passed
after Watergate, signed by Jimmy Carter, and it died at Sunset.
Congress let it die in ninety nine, but it would
come up every five or ten years for renewal, and
basically every president didn't like it. Ronald Reagan's DJ concluded
(13:09):
that it was unconstitutional, but he was like, politically, he
felt he had no choice. He had to sign it.
When it came up for the final reauthorization in ninety four,
George H. W. Bush, the father who Clinton had just
defeated in the ninety two election, counseled him like, as
a fellow president, you're not gonna want to sign this thing.
But Clinton also felt he had no choice signs it
and then it becomes the bane of his existence. And
(13:31):
you know, that is such a memorable moment. I mean,
I was in law school. People may not realize how
much on the razor's edge we were. I mean there
was a moment when Bill Clinton calls a press conference
and we didn't know is he resigning or is Al
Gore going to be president by tonight? And you know,
I talk about how some of the indelible lines I
give the backstory. Right, the two probably most famous lines
(13:53):
or infamous lines from that whole thing are, I did
not have sexual relations with that woman, miss Lumis. That's
my Clinton and the other one is it depends on
what the meaning of is is. And I give the
backstory on both of them. I won't give it all
the way, but I'll just tell you that one of
the people I intern was the prosecute so ken Star
passed away a few years ago, but his number two
was a guy named Saul Weisenberg, who asked the question
(14:15):
that Bill Clinton answered, it depends on what the meaning
of is is. I also talked to Bill Clinton's lawyers,
Whore and the White House lawyers who were by his side.
But I asked Weisenberg. I said, how did you feel
when he gave you that answer? And Wisemberg said he
was very honest. He goes, Look, I'll tell you the truth.
That was a four hour timeframe that we had. That
was about three hours in and up to that point
Clinton was kicking our ass. We didn't get anything out
(14:38):
of him. He looked in control, he goes, But when
he gave that answer, he looked so smarty, and what
he said was so ridiculous. He was a former DOJ lawyer.
He said, if I was trying this case to a jury,
I would have turned to them and been like, can
you believe this guy? And of course that's you know,
that's the moment that lives on from that. That's a
precipitous moment in history right there.
Speaker 2 (14:56):
When did this all kind of become a partisan hellscape
in your opinion, Elias? I mean, how much it was
during the Clinton years or has it just been upping
the ante one presidency at a time.
Speaker 3 (15:10):
Yeah, it's always been somewhat. I don't know if partisan
in the early days is quite the right word, but
it's always been a battle. I mean, everyone's always circled
the wagons and geared up for survival Watergate. When you
look back at it is shockingly non partisan, right like
people within DJ stood up to him. I have scenes
in there on the Sunday morning after the Saturday Night
(15:31):
massacre where the team is wondering, have we all been.
Speaker 1 (15:34):
By the way, for our listeners who don't know, Saturday
Night ostacer.
Speaker 3 (15:37):
That was when Nixon fired the special counsel, and then
the Attorney General and Deputy Attorney General resigned rather than fire,
So the three top officials were all gone. And I
talked to the players. They they came in Sunday morning
and they didn't know there was actually an erroneous report
in the top New York Times that they had all
been fired, but they hadn't, and Archibald Cox comes in
and says to them, basically, you keep doing this work,
don't give him what he wants. Two weeks later, there's
(15:59):
a new special prosecutor and ends up, you know, ends
up resulting in Nixon's resignation. I think it got really ugly,
you know Clinton. I think Clinton ken starrs when people
really took their sides and people really dug in. And
we've seen that certainly with the Jack Smith Trump case,
both sides, certainly with the Joe Biden Robert her classified
(16:19):
documents case. I mean, I think everything since Clinton has
been pretty politicized. Maybe not the Scooter Libby Pat Fitzgerald case.
That one was George Bush was the president was like
he was fairly supportive of that investigation happening, but everything
else has become just partisan warfare since then.
Speaker 1 (16:36):
That's interesting that you would put it that in that
modern era, because you know, in the book, when you
kind of give our Whiskey scandal that we started the
show with, you say that that was really the playbook
that's kind of still being used to this day, right
that we've had the bones of this for centuries.
Speaker 3 (16:54):
Yeah, yeah, I mean, I mean the moves that were made,
like why does Grant appoint a special counsel because he
feels political pressure because his opponent says, I found this
scandal and Greg goes, well, well, hold on, we're going
to take care of it. We're going to appoint an
independent guy. That guy goes out, he starts making headway.
When he gets too close, Grant fires. Grant actually tries
to do a move that Nixon did a century later.
(17:16):
Grant tries to have a military tributal takeover. Nixon tried
to have the CIA takeover, but both of them failed,
and ultimately it becomes finger pointing both ways, and the
media says he's you know, he's covering up, and Grant says,
the media is. I mean, he might as well have
called it fake news. He didn't use that phrase, but
he all but says that in eighteen seventies speak. So
(17:36):
I think it's important to understand, you know, people who've
only been really following this since Muller think it's brand new.
What's happening now Trump two point zero is brand new.
But really from Grant through the Jack Smith case, there's
a lot of connective tissue. Yeah.
Speaker 2 (17:53):
I always try to emphasize when people are understanding the
current very polarized moment in politics that like, you know,
maybe my generation of political reporters, or maybe maybe one
generation older than me, probably right, but not two generations
we have grew up in like the lore of post
World War two elections, right, Yeah, the fifties, the sixties,
(18:16):
the seventies, and if you look historically, this is a
time of a very low polarization relative to the baseline,
and a time when the fifties in particular, you know,
the United States is doing very well. We had a
common enemy, we defeated in World War Two. You have
this baby boom, this prosperity boom. Right, we have the
space race. Right, things are looking up. That's so great
(18:38):
if you're a minority in the nineteen fifties or a
woman or day or whatever else. Right, But like, but
you know, people, society had less conflic than it does now.
And you go before that to the turn of the
previous century, we had a civil war, Right, partisanship is
kind of the norm. But Ellie, but you do think that, like,
it's not just MSNBC exaggeration when people say what Trump
(19:02):
is doing is is much worse. Half an order of
magnitude worse or an order magnitude worse than we've seen before.
Speaker 3 (19:10):
I often disagree with MSNBC, but I do think it's
accurate to say that about what's happening right now this part,
because what's different is every president up until now, and
I include Trump won in that every president up until
now has at least understood there does need to be
some sort of outside prosecutorial mechanism, whether they're investigating the
(19:30):
president or someone around him, or maybe they're kind of quiet.
There wasn't much of this during the Bush or Obama eras,
but that I do need to respect this, I do
need to let it go. Look, every president or most
presidents who've been involved in these cases have tried to
undermine them or obstruct them to some degree. But Trump
has just come in now and said, oh, we're not
even going down that road any There will be no
(19:52):
inward looking investigation at me, Donald Trump or anyone around me.
And more to the point, and this gets to the title,
anyone who looked at me in the past is now
getting investigated. It's when you come at the king and
also Nate to your other point, you know, I spoke
to Carl Bernstein for this book, who I know through CNN.
Of course, Carl was the legendary Washington Post reporter who
(20:13):
helped break the whole Watergate story. And I said, how
did this take so long to play out? Like Nixon
survived ten months after that Saturday night massacre during the
seventy two election. People may not realize this Watergate break
in happened before that. And Carl had already linked a
check from the burglars to a Nixon campaign, and Nixon
won wins, you know, fift forty nine states and five
(20:36):
hundred something electoral votes in seventy two. And I said
to Carl, like, how could this be? And he sort
of was, He's great, but he was sort of like, okay,
young man, let me explain something detail. But he basically
said things were different then. He said, by and large,
if the president denied something, you didn't automatically take him
at his word. But the public was much more likely
to give him the benefit of the doubt, as was Congress.
(20:58):
And he said things just move slower back then, like
it wasn't this twenty four hour boom boom news culture,
social media, so you know, but when I sat down,
the one point in the book where I sort of
cop out and just have a timeline is because it's
so confusing, and I think I just said, boom boom,
this happened, This happened, this happened, and then we do analysis,
but like you have to have that because I cannot
believe how long it took for that to play on.
(21:19):
I can't believe how long he survived politically.
Speaker 1 (21:21):
Yeah, so you know, bridging, bridging those kind of two
things together kind of from the Watergate era two nights
question just now, and how different right Trump two point
zero is because you write in the book that he,
you know, Trump one point oh, the original hadn't quote
fully grasped the lovers of executive pet power, yeah, unquote,
(21:43):
and now he definitely has. Right the second time around,
he knows you.
Speaker 3 (21:47):
Just flip it off, Okay, exactly.
Speaker 1 (21:50):
That's what you do to that. And I was actually
curious under kind of the current regime, right, what has
happened right now? And kind of the really weird definition
of presidential immunity right kind of all of that. Do
we think that all of the cases that you write
about in the book, including Gate, could they happen today?
Speaker 3 (22:11):
Right?
Speaker 1 (22:11):
Like if something like that happened, if we had a
Watergate level scandal right now.
Speaker 3 (22:16):
The realistic answer is today, you know, September of twenty
twenty five. No, because Donald Trump's president and Pambondi's ag
And I mean, if if you had any question about
that to me, there was a sort of moment of
truth with Pambondy a few months ago when the signal
scandal broke out, right, Mike Waltz and others were using
this non secure app and discussing military plans. And I
point out in the book every time we've had any
(22:37):
sort of classified documents issue before, it's been at least
an investigation Hillary Clinton's email, Joe Biden, or an investigation
and an indictment. Donald Trump was indicted for that. And
Pam Bondi comes out three days after no investigation and says, no,
nothing to see here. We're not investigating and you all
should be focused on the success of the military strike
more than anything else. That was it. What would have
(22:58):
happened in almost any prior administration, as DJ would have
convened an investigation. We're taking this very seriously, and six
months later, maybe they would have issued some report, maybe
they would have found someone needed to be indicted, But
here Pambondi was just slammed the door before it could
even start. Now, I don't think it has to be
this way forever. And essentially the pitch I make in
the book is, whenever president comes next forty eight, whoever
(23:22):
that is, you, sir or ma'am, are going to find
that a lot of guardrails have been kicked down, and
it's gonna be mighty tempting for you to leave them down,
because who wants ethics, who wants restrictions on private profits?
Who wants special counsel, who wants inspectors general? But this
one is too important And if we just let this
one stay dead, then we're gonna have big problems down
(23:44):
the line.
Speaker 1 (23:48):
And we'll be back right after this.
Speaker 2 (24:06):
How bad was Watergate?
Speaker 3 (24:07):
Right?
Speaker 2 (24:07):
Because you hear about like a quarterback or baseball play,
you know, Reggie Jackson hit whatever forty seven home runs
in nineteen sixty eight or whatever?
Speaker 3 (24:16):
Are we doing like era inflation?
Speaker 2 (24:18):
Yeah, I mean, like if wanting it happened today.
Speaker 3 (24:22):
Would it be It's a good yeah, that's a good question.
I mean, let's think about it. So let's let's use
a real life example who do you want to be
the bad guys? Democrats are Republicans. Let's make democrats, let's
say democrats. Let's flip it. Let's flip it. If it
turned out that a group of burglars had broken into
the RNC or hacked into an R and C server
and downloaded a bunch of stuff, and then that was
(24:42):
tied back to let's say Joe Biden, and it turned
out Biden knew about it and was in on a
cover up, that'd be I think that'd be pretty bad, head,
I mean, right, But then again, I mean if you
look at some of this stuff Trump, I mean, January
sixth is hard to compare to anything, you know, the
possession of classified documents, but I think it's pretty bad.
Like I don't you know, I look back at Watergate
(25:04):
and see it as this had to happen. I look
back at ken Starr and think that was an out
of control prosecutor, and I think that's I'm certainly not
alone with that many many Republicans. I mean Clinton left
office in one Nate, this is up your alley with
a sixty six percent gallop approval rating, in large part
because of backlash over the ridiculous impeachment. And by the
(25:24):
way I talked to in the book, the prosecutor Bob Ray,
who replaced Ken Starr, comes in at the end and
he has the unfortunate the impeachment's already over, the failed impeachment.
He's got to decide, will you indict Bill Clinton? And
I said to him, Bob, you gotta be kidding me.
There's no way you're gonna indict in two thousand and
one Bill Clinton, for you'll never get a single vote
(25:46):
to convict him. And Bob basically ninety nine percent of
the way, And the book says, we had all the
pieces in place. If he didn't reach an agreement with us,
we would do what we had to do. Now, he
ended up paying a fine twenty five thousand dollars and
making a sort of Clintonian statement about misleading the American
public and giving up his bar license. But I mean,
I'm shocked by that. But Bob said, I'm glad that
(26:07):
I didn't it didn't come to that. I'm glad he
took a deal. And Bob said, by the way, if
we had indicted him, we could have had a situation
where we had a president sitting in the dock of
a criminal courtroom eight months later, nine months later when
nine to eleven happens, and that would have been Can
you imagine how horrible that would have been. So, you know,
it's crazy to me to think that he might have
indicted Clinton, But if Clinton had said I'm not giving
(26:27):
an inch, it's pretty clear that he would have been indicted.
He would have been equitted, but he would have been indicted.
Speaker 1 (26:33):
Yeah, it's it's really interesting to me when you know,
when reading this book, and obviously there were some cases
that I knew and others that I hadn't heard of before.
Speaker 3 (26:42):
It's no listen, nobody knows all these.
Speaker 1 (26:45):
But but you know, the this wide spectrum of seriousness
is actually quite eye opening.
Speaker 3 (26:54):
Right.
Speaker 1 (26:54):
You have you have things that you're like, okay, like
I understand, and then you have things that just seem petty,
and you're like, why are we investigating this? And then
you realize, and you point this out in the book,
that the blame isn't just with the special prosecutor. You know,
it's with people like Reno who say, yes, you know,
we should we should do this.
Speaker 3 (27:14):
Expand into Monica lays.
Speaker 1 (27:15):
Sad, Yeah, into Lewinsky and they're just some some the
scale of it seems totally off, and I feel like
maybe we wouldn't be where we are today if it
had been more uniformally applied.
Speaker 3 (27:29):
Well, I think it needs to be applied judicially. I
mean some of these cases where special councils were appointed
are preposterous. The first, this is one of my favorite facts,
the first ever independent council. So Watergate happens, we get
this new law. In seventy eight, the first ever special
council was appointed to our independent council was appointed to
investigate alleged cocaine use by a White House, a White
(27:52):
House advisor at Studio fifty four in Manhattan. I mean,
what could be more disco era than that? And you know,
the main guy they talked to was some Johnny C,
some drug guy at Studio fifty four who was like,
I think I might have given some guy a two.
And of course that didn't ever get charged, you know
they I mean a lot of times the right move
is you don't charge. But I think he was the
(28:13):
chief of staff. What's his name, Hamilton Jorden. It spelled
Jordan j O r Dam, but it's pronounced Jorden as
I learned during my audiobook, so it was the chief
of staff to the White House. In fact, the second
investigation was also a guy using coke. I mean, it
couldn't be more seventies. But I think I think the
bar has been raised, and I think people on both
sides politicians generally now understand we're not going to appoint
(28:36):
special counsel on pitdling matters. Although you could look at
Hunter Biden, that prosecutor, and I talked to Hunter's team,
Abby Lowell, his lawyer, who ferociously objected to this. It
was a gun and tax case on an Indi private individual.
And I think there's a lot of criticism to be
had of Merrick Garland for agreeing to turn that prosecutor,
(28:57):
David Wise, from a regular DOJ prosecutor. Then he decides
he wants to be special counsel, and Garland says sure,
but I think that was a mistake, and I think
I think you do have to look at what's the
seriousness of the charges here.
Speaker 2 (29:08):
So do you do you think Democrats came and missed
with Trump? Do they not go hard enough on the
best cases?
Speaker 3 (29:16):
So the short answers yes, And the person who I
laid most flame at in the book is Merrick Garland
because Jackson. The first sentence of the Jack Smith chapter
is jack Smith never had a chance because by the
time Merrick Garland wastes two years and appoints Jack Smith's
special counsel in November of twenty twenty two, almost two years.
I wrote in my prior book, which came out in
(29:38):
mid twenty twenty two, it's already too late. I quoted
the movie Searching for Bobby Fisher, which I don't know
if you guys seen a great movie, right, Chess Prodigy movie, yep,
And the kid says to his opponent, you've already lost.
You just don't know it yet. And it turned out
that was correct. There was never any way, if you
know how long federal prosecutions take, if you knew, which
we did, because I wrote about in my last book,
they were going to have to deal with the immunity issue.
(29:59):
It was going to go to the Supreme Court. There
was never any way jack Smith was going to get
his case done tried before the twenty twenty four election. Now,
if Trump had lost, okay, you know, you try him later.
But you always knew there was at least a fifty
to fifty chance Trump would win, So they took that
risk and they lost. But I think there's there's a
lot of discussion in here about why Merrick Garland, you
(30:20):
know the fact that Merrick Garland took too long, and look,
does that justify retribution? Absolutely not. But Trump has now
you know, they shot and missed, and Trump's now coming
back at them.
Speaker 1 (30:32):
And they're not the first ones. So one of the
things that you know, I was noting as I went
through the book was, you know, a lot of the
people who came at the King missed, right, Yeah, well
missed the mark.
Speaker 3 (30:43):
Yes, and some decided not to take the shot. I mean,
Robert her with Joe Biden is a good example. You know,
everyone remembers that Robert Herr said, oh, Biden's an elderly
man with a faulty memory, blah blah blah. That was
the big But but what everyone kind of missed is
that Robert Hurr found that Joe Biden knew he had
classified documents, like Joe Biden denied that for years. Anything
(31:03):
I had was in Adverton accidental, accidental. But there's a
tape we find out of Joe Biden's say to his ghostwriter,
I just found all the classified stuff downstairs, meaning in
his private office. So like I sort of said, look,
Robert Herr could have I think he did the right
thing by passing on this, but he could have written
a report that said, while I cannot indict the sitting
(31:25):
president under long standing DOJ policy, to talk about that
in the book, I do find that the evidence would
have been sufficient to uphold a criminal charge. There is
a criminal charge for knowingly mishandling classified documents. And really
that statement by Robert Herr is offered to explain his
calculation on the state of mind, the intent. He says, well,
(31:47):
it would have been hard to, you know, show a
jury that he was fully aware, fully remembered. He would
have been sympathetic to a jury. I mean, but look,
I talked to Bob Bauer, who's Biden's lawyer, who was
fiercely critical of her. Said he went too far, said
he put politically, you know, stuff he shouldn't have put
in his report. So I kind of leave some of
this to the reader, you know, I mean, I don't.
I will let people withdraw their own conclusion, some of them.
I think there's a definitive conclusion to be drawn. But O,
(32:09):
there's I think, you know, it depends how you see it.
So sometimes you know, Look, I make a point of
saying this in the book, and I say this as
someone who was a prosecutor for a long time. You
can't just judge prosecutors. I'm like, what's their stats? Like,
how man? How many people did you ring up here?
Because sometimes the right move the better move, and the
right move is to exercise your discretion against the charge.
And I think reasonable minds can differ on the Biden case,
(32:30):
but I think it's hard to say her was wrong.
Speaker 2 (32:34):
What do prosecutors not understand about politics?
Speaker 3 (32:40):
That's a great question question I want to say everything.
I mean, look, if you would talk to me six
years ago. Let's say I've been doing media stuff for
seven years now. In early in my media cra I
was fresh out of fourteen years of being a prosecutor.
And I have this very like purest notion of prosecutors.
Like what we do, especially at DJ is pure. It
is uninfected by politics. It is separate, apart, and probably
(33:02):
above from politics. The reality, however, is prosecution is part
of our It exists within our political system. I mean
why do we have DJ and an attorney general and
an executive branch. It's from the Constitution, where all we
all spring from the same document. And I think it's
a bit naive to say that like prosecutors are just
(33:23):
you know, where are white knights and never aware of policy.
I mean, look, this is part of the complexity of
Jack Smith. Like did he do his job in a straightforward,
aggressive way, yes, but there's no question he was rushing
like mad to get Trump tried before the twenty four election.
That's an uncomfortable intersection of politics and prosecution and people
(33:43):
who you know, I point, people sort of defended Jack
Smith reflexively. I think, because like there was a thing
for a while, anyone who's going after Trump is good
by me. I don't buy into that. But Jack Smith
initially demanded a trial date for Trump five months after
the indictment on a case with thirteen million pages of discovery.
That is impossible and unheard of. I actually looked up
(34:06):
the data. The average case in that court, in DC
Federal Court, and I'm just talking drug and gun rips
mostly took twenty eight months. The defendant got twenty eight
months to prep that two years and change, and Jack
Smith says, here, we have like the most complex, most
important case in US history, and he needs to go
to trial in five months. And I talked to Trump's
legal team and they said, correctly, like, there's no physical
(34:28):
way we could have gone through the evidence in that time.
And the only reason he wasn't able to do it
was because the immunity decision came in and everything I'll
put on hold, and then Trump won. So look, I
understand Jack Smith, I think has the closest to my
prosecutorial background of like cea target attack target. But I
also think you can't tell me that Jack Smith was
unaware of the looming election and trying to get his
(34:50):
case tried before the election. There's no rational observer who
could say that he had no idea and didn't care.
Of course he cared.
Speaker 1 (34:56):
Yeah, so we have a lot of, you know, important
questions about what should happen, you know, going forward. But
I do have to say that I did one piece
of outside research that I was inspired to do based
on your book, and you included a detail about Patrick Fitzgerald,
who was the special counsel who was put in charge
of investigating the Bush administration for leaking the identity of
(35:18):
a CIA agent. But that's not what I took away
from that chapter. What I took away was that he
was one of people's fifty sexiest men Alive of two
thousand and five.
Speaker 3 (35:30):
Yes, sexy, and he wasn't, but he was on the list.
Speaker 1 (35:33):
No, Matthew McConaughey that year was the sexiest man alive. Yes,
just edged him out. And I was like, what the fuck? Like,
who is this guy? So I looked him up and
my answer is what the fuck?
Speaker 3 (35:44):
Okay, So my editor, my editor, Maria, one of my
fact checkers and editors, who was a woman of about
your age, dropped and note in the manuscript saying, holy shit,
did you just disappoint me? Because because Pat Fitzger, she
did the same thing as you. She googled him. Now, child,
he's a good looking guy, right, Like he's above that average.
Speaker 1 (36:06):
He's maybe above average, I don't know, but fifty sexes
met alive? Like what was he doing as a special
prosecutor that made him?
Speaker 3 (36:15):
Like?
Speaker 1 (36:15):
What what a funny moment in history?
Speaker 3 (36:17):
Number one? Number one? That is, you know, objectively, he's
the only special counsel ever named sexiest anything. I've never seen.
You know, the guy from the Whiskey Rain was not
named sexiest anything by the New York Herald number two.
I think it's actually a good reminder of like I remember,
because I had just started at DJ. I started an
(36:39):
four and this investigation went crazy in five six oh
s and Fitzgerald had come out of the office I
had started in. I don't know him, I've never met him.
He didn't talk to me because he's sort of retired.
He lives like in I don't want to say where,
but he lives a quiet life out of the law now.
And he very politely declined. But everyone at the office
I worked at worshiped this guy. Loved him. He's hilarious,
(37:00):
he's brilliant, and I think just something he was the guy.
He was the Jack Smith, the Robert Muller of two
thousand and five six, and you know, like that what
kind of iconography or whatever? You know, I talk about
that with Muller, right, remember all the Muller action figures
and memes and He's gonna get you and all this.
You know, Muller's team made a really interesting points. I
(37:21):
talked to a couple of the prosecutors. They said, people
who were spreading that stuff Muller, she wrote, and you know,
Muller's gonna do it justice. And by the way, they
did the same thing the other side with John Durham,
and they did the same thing with Jack Smith. These
guys said to me, that was first of all, completely
a disservice to Robert Muller, the man who was an
American hero. The guy was shot in Vietnam through his
leg and returned. He was he was a recipient of
(37:44):
a purple heart. He's, you know, an FBI director during
nine to eleven. He hated that crap. He hated being,
you know, a Twitter meme for liberals. And they also
say it didn't help us, by the way, because it
gave the other side fuel to say, look, they're coming
after us. They've put this attack dog on us. And
(38:05):
so as much as some liberals had fun with their
Muller memes, Owlers own team hated it, and they talk
about that in the book.
Speaker 1 (38:12):
No, that's definitely sorry.
Speaker 3 (38:13):
About Pat Fitzgerald. By the way, I pretty handsome.
Speaker 1 (38:18):
It's okay, it's okay, But you know you aren't you
happy that you've inspired in dependent historical research on the
part of your readers.
Speaker 3 (38:26):
I hope for Pat fitz Cherald's spike right right about now.
That's a good sign.
Speaker 2 (38:36):
And we'll be right back after this break. Who would
you want to talk to that you weren't able to
pin me? And what would you ask them?
Speaker 3 (38:56):
That's a great question. The guy I wanted to talk
to most was Jim Comey, who takes a lot of
heat in this book. Now, Jim Comy again. I started
at the SDN y five months for something like that
after Jim Comy left, and I say in the book
when I got there, everyone who was already there loved
and worshiped Comy. They you know, Comy's like six set.
(39:17):
I've met him. I've had nice conversations with him in
green rooms and stuff. But Comy declined to speak with
me because we all know how shy Jim Comey is
about the meeting. That's a joke. But look, Jim Comy
takes a lot of shit in this book, and I
think he deserves it. The incident with Hillary Clinton's email
that we talked about before, Nate, that you looked into
whether it may have flipped the election, that is the
(39:39):
perfect example of why we need rules because what happened
was Loretta Lynch has our meeting on the tarmac with
Bill Clinton. They both say nothing inappropriate has happened, was discussed,
but Loretta Lynch herself said that meeting cast a shadow.
That's her word over the investigation. She showed at that
point of a point that a special council it was
actually briefly considered, but she doesn't. Instead, she says, I'm
going to just defer to the FBI, which is not
(40:00):
the way it works. The AG's in charge, Well, what
do you do. What happens when Jim Comy is told
I'm going to defer to you. He runs wild. He
doesn't abide by any of the rules or regulations. He
does whatever he wants. And that results in two announcements
shortly before the election, and since then, I don't think
anybody defends Comey other than himself. I mean, three different
attorneys general of both parties, a Democrat and two Republicans
(40:24):
have publicly said that Jim what Jim Comy did was
absolutely wrong, violated DJ norms. And so if you want
to know what happens when we try to investigate the president,
but we make it up as we go along, look
at Jim Comy, so he didn't he didn't want to
talk to me. I wish he would have.
Speaker 2 (40:38):
You get these things in like, if you're watching the
NFL or NHL or NBA whatever, right, where like the
decisions that officials make are not totally unbiased with respect
to the game score and the effect on the outcome
and the and the and the star power of the
athletes involved, right, And they'll say, well, look, we're trying
to manage the game. It's an entertainment product. And like, yeah,
(41:00):
if you're calling some tiki tech foul want to play
the determines the super Bowl, then that's not good game.
Speaker 3 (41:05):
As an Eagles fan, that hurts. But yeah that's the
first Chief super Bowl, which bullshit. But god, yeah, you
guys are spoiled. Now I'm not complaining, but yeah.
Speaker 2 (41:16):
I mean, is a better prosecutor unaware of politics or not? Right, Like,
let's say you have something that's.
Speaker 3 (41:23):
Gonna know Again, I don't buy into this ideal of
like the prosecutor locked in a vacuum and just looking
at the DOJ Justice Manual. Like, I think a good
prosecutor has to be aware of what the politics are,
especially in these special council cases because you're gonna have
the White House involved, You're going to be requesting information
from the White House. Congress may get involved the media,
(41:43):
but I think you have to keep your head down
and I mean it sounds pollyanna ish maybe, and do
your best to do the job without regard to the
certainly not the Okay, let me put it this way.
You have to be aware of an account for the politics,
but you should never be playing a partisan role. There's
a difference there. Right, you exist in a political universe.
But I think when it gets to a point where
(42:03):
people are with some credibility saying now that's something that
wouldn't ordinarily be done. Now you're potentially crossing the line
into partisanship.
Speaker 1 (42:13):
So I think that's a good moment to kind of
turn to your recommendations, right, which you kind of have
some end at the end of the book for kind
of going forward. Now that this office has been like
completely gutted, right and we don't even know what's going on,
we basically need to start over. What would your ideal
look like? How do how do we come back from
(42:33):
where we are now? How do we create an office
of whatever we call it? Independent Council Special whatever it is,
What do we do so that we have investigations that
are as impartial, you know, with all the caveats as possible,
and that actually keep people to account who need to
be held to account.
Speaker 3 (42:52):
Yeah. So, first of all, if you look at history,
every quarter century or so, we sort of revamped this, right,
we did one in the seventies, one in the nineties.
Now Here we are, and there is no perfect system.
There's no way I do lay out a system at
the end. There's no way I would tell you it's
infallible or every you know, there are certainly arguments against it,
(43:12):
but my first argument is some system is better than
no system. Just look at Jim Comy again. If you
want to freestyle all these get ready for more Comy's
second of all, the crux of what and in coming
up with this proposal A I looked at scholarly articles
and law review articles and various other legislative proposals. But
I also everyone I talked to for this book, all
(43:33):
the prosecutors, defense layers, white House officials, you name it.
I said, what how did the rules work for you?
What rule do you wish have been different? Which which
ones were effective. The number one thing I think we
need is a semi permanent special council within DJ nominated
by the President, confirmed by the Senate to give some
political look. There has to be some accountability. You can't
(43:54):
just have a super powerful prosecutor. The AG and all
the US attorneys have to be nominated to confirm this
person has the same powers, if not more, and so
needs to have that political legitimacy to It needs to
have a set term of years, sort of like the
FBI director serves for five years, although now Trump just
fires them at will, but for a long time it
was like ten years FBI director, I should say, but
(44:15):
you know, you just you inherited that Mueller carried over
over various administrations. And the person needs a semi permanent
staff of prosecutors, analysts, investigators, so you don't have this
scenario of Ken Starr, Bill Clinton go go. You know,
Jack Smith, Donald Trump go. So you are looking at
(44:35):
various things at once. But you know, one of the
concerns is aren't you going to incentivize this person to
always be breathing down the president's neck. My answer is
not if you have the right person. I mean not
if you have a person who understands prosecutorial restraint and
you know, so, Look, we rely on the people to
an extent. But I also think this person needs more
higher level protection against firing. I think we need to
(44:56):
more carefully vet our people who are on that team
for any outwards political biases. There have been people on
these teams who have been donors and been to campaign parties.
I think that's disastrous. I talked about one of Muller's
team members who was at the Hillary Clinton what was
supposed to be victory party but was not, and has donated.
And he has defended himself by saying, well, but I
(45:20):
didn't make any I didn't get anything wrong though. Whatever
my personal beliefs, I was able to put them aside.
And I said, yeah, but the other people on the
team said they had to stop you a couple of
times from doing things that were inappropriate. And I also said,
this person wouldn't talk to me either. But I also
used a baseball analogy. I said, this would be like
if in the seventh game of the World Series, the
home plate it was Yankees and Dodgers. I should have
(45:41):
used a Phillies Astros or something, but Yankees Dodgers. I said,
what if the homeplate umpire ended up with a high
game score? Like you know, the computer said he did
a good job. But on his Instagram page he was
wearing a Dodgers hat every day. Like would Yankees fans
be expected to accept that guy? Would the general public
be expected to accept that guy? So I think we
need to vet for political bias, you know, donations and
(46:05):
public statements, that kind of thing. It's not perfect, but
I do think I do reject the idea that like
I'm just going to throw my hands up and say
this is all broken, because that's not dealing with the problem.
That's just washing your hands of it.
Speaker 2 (46:18):
Ellie, how much could be done via legislation as opposed
to requiring constitutional changes.
Speaker 3 (46:23):
So you can do all of this basically, I think
by legislation, I'm not sure, you know, the current Congress
certainly wouldn't do it, and I'm not sure any But
the real fallback option A is legislation. Option B is
DJ can pass its own REGs. The current Special Council.
There is no law, it's just DJ reggs which are
passed by DJ itself. So those are the fallbacks I think,
(46:45):
And by the way, there would be a constitutional challenge.
There have been over time. It's the systems have always
withstood it. But that would happen as well.
Speaker 1 (46:54):
So, you know, for people who you know read this,
who kind of get acquainted with the history, who feel
your frustration about the current moment and kind of take
it to heart, what's kind of the big message that
you want people can have take away from this?
Speaker 3 (47:10):
The big message is we have been grappling with this
problem for a long time, but it's a problem we
have to grapple with. And as much as the prior
investigations have been highly imperfect, and a lot of the
book is about how flawed some of these investigations were,
we need this mechanism. It's a crucial check on the presidency.
And although Donald Trump will be you know, it will
(47:31):
be go dormant during the next three years, it can
come back and it needs to come back because otherwise
we're going to lose a key check on not just
presidential power, but runaway executive branch power as a whole.
Speaker 1 (47:45):
So, at the end of the day, are you an
optimist that that will happen or are you a pessimist?
Speaker 3 (47:49):
I tend to be an optimist. I mean, look, I've
been in media for seven years. I've seen all sorts
of crazy stuff happen. But I do believe in our institutions.
I do believe in our laws. I don't think they're perfect,
but I reject the hyperbolic. You know, I've heard people
say we'll never have another election. In twenty twenty eight,
Trump's going to run again. I've always rejected that. I
don't think that's going to happen. I don't think that's
I don't think he wants to do that. I do
(48:09):
believe our laws and our constitution are sturdy enough. They're imperfect,
but I think they're sturdy enough. They've stood up for
two hundred and fifty years, and I think if we
give them thought, they'll continue to stand up.
Speaker 1 (48:25):
I'm very happy to hear that. Thank you so much
for coming on and sharing your wisdom and your optimism
with us. Congrats again on the release of your new book,
When You Come at the King.
Speaker 3 (48:36):
Thanks very much, guys, I appreciate it was great talking
to you.
Speaker 1 (48:45):
Let us know what you think of the show. Reach
out to us at Risky Business at pushkin dot FM.
Risky Business is hosted by me Maria Kanakova.
Speaker 2 (48:53):
And by me Nate Silver. The show was a cool
production of Pushing Industries and iHeartMedia. This episode was produced
by Isaa Carter. Our associate producer is Sonia gerwit Lydia,
Jean Kott and Daphne Chen are our editors, and our
executive producer is Jacob Gold's mixing by Sarah Bruguer.
Speaker 1 (49:11):
If you like the show, please rate and review us
so other people can find us too, But once again,
only if you like us. We don't want those bad
reviews out there. Thanks for tuning in.
Hosts And Creators
Maria Konnikova
Nate Silver
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