September 23, 2025 • 42 mins
Elie Honig joins Rick Wilson to discuss When You Come at the King, exploring the intersection of presidential power and the law. Nixon's Watergate scandal, Reagan's Iran-Contra affair, and Clinton's Monica Lewinsky scandal all tested the limits of executive power in their own ways. However, Trump has altered the game when it comes to executive power and has zero shame about it. Trump's presidential immunity ruling was the most significant expansion of presidential power in the last 100 years. Wilson and Honig delve into how this shift has not only challenged legal norms but also deepened partisan divides, raising questions about the future of presidential accountability.
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You can follow Elie Honig @eliehonig on X, and pick up his new book “When You Come at the King: Inside DOJ's Pursuit of the President, from Nixon to Trump” wherever fine books are sold.
Follow Rick Wilson at @TheRickWilson on X and @therickwilson.bsky.social on Bluesky, and subscribe to his Substack at therickwilson.substack.com.
Join the fight with the Lincoln Project at www.lincolnproject.us and follow LP on X at @ProjectLincoln. If you'd like to help us continue our critical work, visit https://action.lincolnproject.us/helplp to make a difference.
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You can follow Elie Honig @eliehonig on X, and pick up his new book “When You Come at the King: Inside DOJ's Pursuit of the President, from Nixon to Trump” wherever fine books are sold.
Follow Rick Wilson at @TheRickWilson on X and @therickwilson.bsky.social on Bluesky, and subscribe to his Substack at therickwilson.substack.com.
Join the fight with the Lincoln Project at www.lincolnproject.us and follow LP on X at @ProjectLincoln. If you'd like to help us continue our critical work, visit https://action.lincolnproject.us/helplp to make a difference.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
But these cases are life or death. I mean they
all understood. Every one of these people basically understood. Some
of them said to me, no matter what I do
the rest of my life, my work on this case
will be in my obituary.
Speaker 2 (00:12):
Your attack will not be an easy one.
Speaker 3 (00:14):
Your enemy is well trained, welling, but.
Speaker 4 (00:18):
Is not a liberal America and is conservative America, the
United States of America.
Speaker 3 (00:28):
Hey everybody, it's Rick Wilson. Welcome back to the Lincoln
Project podcast. As always, thank you for joining us. We
appreciate all of our listeners who like and share and
promote our content. Every week. The podcast has been growing
at a at leaps and bounds, and it's all down
to y'all. Thank you so much. I am thrilled to
be joined today by one of the smartest legal analysts
in this country, Ellie Honing, is here to talk to
(00:50):
us about a tremendous new book he has coming out
on the sixteenth of September. It is called When You
Come at the King, a line that most America are
familiar with only through the wire, but it's a great
insight into how investigations of presidents have gone in this country.
(01:13):
And I'm so looking forward to talking today Ali about
this because for a long time, Americans believe that the
president had to be accountable, had to follow the law,
had to do the things that every other American had
to do. That world has changed a lot. But walk
us through this history you've written, which is a fascinating
look inside investigations of American presidents, how they have been
(01:37):
conducted in the past, how that's changed in the current moment,
and why it's important that presidents still have to be
accountable to the American peace. Sure, so thank you for
having me. Rick. First of all, it's great to see you.
Here's the book.
Speaker 1 (01:48):
You know, they tell you always have the book ready
to display for our viewers. Here it is, so you know,
I love that you noticed the title, because yes, indeed
that is attributed to.
Speaker 3 (01:58):
Omar from the wire.
Speaker 1 (02:00):
However, I learned in the research, not surprisingly, I guess
that that notion when you come at the King you
better not miss goes back hundreds of years philosophers, Machiavelli, Emerson.
But of course no one said it better than Omar. Right,
it means two things really. First of all, you know
I talked in this book on record thirty five different
people who've been involved in these cases firsthand over the years.
(02:21):
Watergate prosecutors, people from Ken Starr's team, Bill Clinton's defense team,
lawyers for Joe Biden, Hunter Biden, Donald Trump, I mean,
Muller's team, you name it, right, And one thing that
came through to me, Look, I was a prosecutor, so
I know the intensity of any case. But these cases
are life or death. I mean they all understood. Every
one of these people basically understood. Some of them said
(02:43):
to me, no matter what I do the rest of
my life, my work on this case will be in
my obituary. And so the stakes are so heightened in
some instances that leads to heroic conduct and others it
leads to disastrous conduct. The other thing, though, as you
alluded to, Rick, the world is very different. What we
are seeing now in Trump two point zero is fundamentally different,
(03:06):
not just in degree but in kind from everything we've
seen going back, including Trump one. I should say, but
I think if you had to split the world into
two historical eras, it would be ulysses As Grant, who
appointed the first ever one of these special councils up
to now, and then Trump two point zero is just
its own era, and I think when you get the
(03:26):
broad historical sweep, you'll see that some of the things
that both you know that Trump and to an extent
Biden Clinton, whoever has been under investigation, George Bush, have
done go back to have the roots in Watergate or
even before that.
Speaker 3 (03:39):
But what Trump's doing now is fundamentally different, you know,
the modern era of presidential investigations. Obviously before in the
in the pre Trump era, Nixon was the pinnacle. Nixon
was the sort of the apotheosis of shady presidential behavior
in the minds of most people, and the investigations that
ended up result in his resignation.
Speaker 5 (04:01):
It was a political scandal that changed our country forever,
beginning with the break in at Democratic National headquarters in
the Watergate Office complex, in ending in the resignation of
President Richard Nixon.
Speaker 6 (04:12):
He always saw enemies, He always saw people in the shadows.
Speaker 3 (04:16):
And his motto, I believe, was do unto others before
they have a chance.
Speaker 4 (04:22):
To do unto you. That's enough. Have never been a quitter.
The leave office before my term is completed as abhorrent
to every instinct in my body. But as president, I
must put the interests of America first. Therefore, I shall
(04:44):
resign the presidency effective at noon tomorrow.
Speaker 3 (04:47):
We're viewed as sort of a pattern setting way that
you looked at illegality in the White House, illegality in
the executive and to a large degree, no president I
mean between Nixon and today face that level of existential scrutiny.
(05:10):
I mean Reagan with Iran contra.
Speaker 7 (05:14):
My fellow Americans. I've said on several occasions that I
wouldn't comment about the recent Congressional hearings on the Iran
contramatter until the hearings were over. Well, that time has come,
so tonight I want to talk about some of the
lessons we've learned, but rest assured that's not my sole
subject this evening. I also want to talk about the
(05:35):
future and getting on with things, because the people's business
is waiting. These past nine months have been confusing and
painful ones for the country. I know you have doubts
in your own minds about what happened in this whole episode.
What I hope is not in doubt, however, is my
commitment to the investigations themselves. So far, we've had four
(05:58):
investigations by the Justice Dear Department, the Tower Board, the
Independent Council, and the Congress. I requested three of those investigations,
and I endorsed and cooperated fully with the fourth, the
congressional hearings, supplying over two hundred and fifty thousand pages
of White House documents, including parts of my own private diaries.
Speaker 3 (06:20):
Clinton with his various personal stuff.
Speaker 8 (06:23):
Another extraordinary day in Washington is the intern sex scandal
involving President Clinton continues to unravel again today with PLO
chairman Yasser Arafat at his side. Clinton denies having a
sexual relationship with White House intern Monica Lewinsky and that
he asked her to lie about it to investigators. Meanwhile,
across town, Whitewater Independent Council can start pledges to conclude
(06:44):
his investigation.
Speaker 3 (06:45):
As fast as possible.
Speaker 8 (06:47):
The next forty eight hours could be critical as we
get the latest information on this fast movie story and
what it could mean to the Clinton presidency.
Speaker 3 (06:54):
All these sort of were a background risk for President.
Talk to us about how it evolved in the pre
Trump era between Nixon and Trump.
Speaker 1 (07:07):
So a couple things changed over the course of that era.
And you're right, by the way, I think that the
Nixon prosecution remains the gold standard. And I talked to
Jill Winebanks and James Quarrels, both of whom were twenty
six and thirty at the time. And now you can
do the math on what they are now. But great people.
And you know, they took me inside that case. They
told me what it was like the Sunday morning after
(07:30):
the Saturday night massacre.
Speaker 3 (07:31):
Right.
Speaker 1 (07:32):
Jill has this amazing experience in the book where she's
at a wedding. She couldn't get a day off, and
she's at a wedding. She finally she got to go
to New York City and she comes back from this
wedding at midnight on Saturday. This is of course before
the days of phones and the internet, and the desk
clock hands are a piece of paper that says the
office has been seized by the FBI. Get back here immediately.
So she goes back down Sunday morning, first thing, and
there's police tape on her desk. And if you know, Jill,
(07:54):
I'm sure some of your listeners of viewers do, what
does she do? She just starts ripping it off and
one of the guard and says, right, one of the
guards says, I wouldn't do that.
Speaker 3 (08:02):
Ma'am, and she just ignores him the.
Speaker 4 (08:04):
Matter of your being.
Speaker 7 (08:06):
I know you don't like the phrase a lady lawyer.
A lady lawyer came up time and time again.
Speaker 9 (08:11):
Well, I had a variety of problems because I was
a woman. I do object to the term lady lawyer.
I'm a trial lawyer, or a criminal lawyer, or a litigator.
I am not a lady lawyer. There is no such
thing as a lady lawyer unless that's the area of
law specializing in legal problems of women, which is not
what I do. I had problems of discrimination. I was
(08:32):
the first woman hired as a trial lawyer, and my
bosses saw trial lawyers as tough ex marines who smokes
cigars and intimidated witnesses. I didn't do that. I didn't
fit their stereotype, and so for that reason I had
some problems as a woman. And once I proved to
them that a woman who is a lawyer is simply
(08:53):
a lawyer and can do the same job in her
own way, they let me be and gave me trials.
Speaker 1 (09:00):
And you know, Jim Quarrels and Jill Bow tell me
this story where the prosecutors got together.
Speaker 3 (09:05):
They didn't know.
Speaker 1 (09:05):
Okay, Archibald Cox has been fired. The Ag Elliott Richards,
and the Deputy Ag William Buckle's house have resigned in protest.
They didn't know if they had been fired. In fact,
the New York Times reported that everyone had been fired wrongly.
And they're sitting there and Archibald Cox, this venerated figure,
comes in and he tells the team. He says, don't
give him what he wants. You keep doing your work
(09:27):
until unlesson until you hear otherwise. And they both said
that was all we needed to hear. And then eventually
Leon you know, Nixon didn't go all the way, right,
I mean, I'm not making any excuses for the Saturday massacre.
But two weeks later he allows the appointment of Leon
Joorski and they continue on their business. Chris subpoena the tapes,
the Supreme Court rules against Nixon, and then he resigned, So,
(09:48):
you know, and Jill's so funny because she was saying,
I was trying to get Leon je Orski to indict
him every day, and then when he resigned, he said,
now we can really indict him. He's not even the
president anymore. But then he gets parted Jill even said
after the pardon, she even research whether she could still
somehow prosecute him despite the party, but concluded that she
could not. But you know, look, every president, and again
(10:08):
I'm going to exclude the current Trump because he's what
he's doing is differently, but virtually every president, they have
a big bit of a mixed record, but has tried
to undermine or deflect or obstruct the investigations. But no
one has quite gone all the way to where we
are now, which is nobody will be appointed to look
at me or anyone around me, ever, and if I
(10:29):
get any with it, anyone has our will. The title
of the book, you know, you best not miss I'm
coming for you retribution.
Speaker 3 (10:38):
You know, as you said, every president who gets investigated
for things, and folks, Republicans and Democrats alike, have all
been under special counsel investigations over time. And but isn't
the difference that at that time that it was a
part of their A part of their objections to it
(11:00):
were the protection of executive power within bounds, and part
of it was their legal defense strategies for these things.
But now it is just completely there is no you know,
Trump has taken on this sort of you know, let
tat SAMOI, yeah, approach. He does not care about the
legality of anything. You know, it's that it's that evolution
(11:23):
from Nixon of the president. So is it it's legal, right, but.
Speaker 4 (11:26):
When the president does it, that means that it is
not illegal by definition exactly.
Speaker 3 (11:32):
Now Trump really, I mean, I think Nixon was bullshitting
and playing, you know, playing, playing, playing, he was bluffing.
But Trump doesn't bluff on this. He believes that he is.
Speaker 1 (11:41):
The strategy has has evolved, for sure, and now it's
at an extreme. And you know, it's interesting because one
thing I was trying to figure out. Look, I was
born in nineteen seventy five, so I didn't live through Watergate.
And I asked Carl Bernstein, who everyone knows who that is.
But I talked to Karl for this book and Garrett Graff,
who's a great historian who studied, Oh Watergate, great, great,
(12:02):
And I said to both of them, how on earth
did Nixon survive? Because look, Watergate broke and Carl had
written the story linking a check from the Burglars to
to a a Nixon campaign before the seventy two election,
and Nixon clobbers in the seventy two election, he wins
forty nine states, He wins five hundred something electoral hotes.
(12:24):
And you know, I asked Jill. Jill said, you know,
it's seen now as a FATA company that Nixon will be.
Speaker 3 (12:28):
It would be toppled. But it was anything Bud. He
was a colossus.
Speaker 1 (12:32):
But Carl said to me, you know, in those days,
if the president denied it, generally it was accepted. I mean,
we didn't blindly accept it, but the public we didn't.
At the Washington Post, Carl said, Garatgrafht said the same thing,
and Garrett said, also, things move much more slowly than
it was, like a slower process. He dragged it out
(12:52):
and it wasn't until really those tapes started to emerge
and John Deane testified and Butterfly. So that was a
difference then and now, which is back then the president
had more or less the benefit of the doubt, not blindly,
but more or less. And now, largely because of Watergate,
we no longer think that way, and largely because especially
because of Trump. But you know, different, it's interesting when
(13:13):
you look back at what the record is of different
presidents like George Bush, and Reagan hated the Iran Contra investigation,
but they generally refrain from publicly attacking it and undermining.
In fact, one of the prosecutors on Iron Contra said, look,
they were cooperative, like when we subpoena documents, they gave
him to us, you know. And then it varies like
Clinton sort of refrained from overtly slamming Star, but his
(13:37):
team sure did try to undermine him in a way
that I think is within filds plight. So it's evolved
over theirs. But now it's just like Trump's like, why
do I even have to have a strategy? My strategy
is just like.
Speaker 3 (13:46):
You has has has there become a sort of societal
expectation on the left and the right that special prosecutors
are gonna perform a transitional miracle. On the left, Robert
Muller was seen as the guy who was going to
blow the Russia Gate story wide open and take down Trump.
(14:08):
On the right, John Durham was considered the guy who
was going to reveal the corruptillary Biden and neither of them,
and I will I will, I will say the Mueller
investigation was choked out by bar by the subject of
my first Bill bar yep, correct, hatchet you got it
(14:28):
of the highest or again. But both of those seemed
to have have left a very bad taste in the
mouths of the partisans who believed they were going to
get a political outcome from a legal investigation. Has that
poisoned the well for for legitimate prosecutions? Is it is?
Speaker 10 (14:51):
It?
Speaker 3 (14:51):
Has it become just two partisan yeah? You know, uh
and and outside the rule of law and just purely
like my team their team.
Speaker 1 (14:59):
I think largely it has come to that. And I
hate to say it, but I do think you know,
there used to be let me go back to the
one before Muller was Scooter Libby?
Speaker 3 (15:08):
Right when?
Speaker 1 (15:08):
So this is during the George W. Bush administration. Pa
Fitzgerald's account, right, you remember this, and it has to
do with the leaking of the identity of the SAA.
Speaker 3 (15:16):
I remember this for a many.
Speaker 11 (15:17):
Right, Okay, Today in a Washington courtroom, Judge Reggie Walton
threw the book at Lewis Scooter Libby. He sentenced the
former top a to Vice President Cheney to thirty months
in prison. Libby, you may recall, was convicted in March
of obstructing justice and lying to a grand jury and
the CIA leak case involving agent Valerie Playing. It was
a complicated trial that had to do with building a
(15:38):
case for war. To some observers, that also had a
lot to do with politics and payback. But the judge,
who expressed a sense of sadness in today's sentence, said
the evidence of his guilt was overwhelming. Questions remain, including
the possibility of a presidential pardon, but this much is certain. Today.
Scooter Libby became the highest ranking White House official to
(15:59):
be convicted in twenty years, and the American people were
reminded that even people in power with friends in high places,
are not above the law.
Speaker 3 (16:08):
George W.
Speaker 1 (16:09):
Bush didn't like it, but he publicly said the only
things he ever said about Pat Fitzgeralder, He's a thorough guy.
I'm gonna let him do what he's got to do,
and the chips fall what they may. And I talk
about in the book how he was actually very very
close to indicting Carl Rove. It came down to a
razor's edge decision, and you know, he indicted Scooter Libby,
tries and convicts him, and he ends up, by the way,
(16:29):
the only person. Fun fact, Rick, I'm gonna test your
trivia memory. Who is the only person ever to get
locked up on that case? Because Scooter Libby did not right,
he gets commuted his commuting and it gets pardoned. It's
a little bit of a trick question.
Speaker 3 (16:45):
Oh, it's gonna come to me in a second. It's
a female. I'll give you a hint.
Speaker 1 (16:49):
Yeah, Judy Miller, reporter from the New York Times. Judy
Miller to not give up her sources, and she went
to prison for eighty five days. And by the way,
she talked to me for this book. Was told she
doesn't talk anymore, and she no, she's sort of out
of them. I was told she's like a JD. Salinger type,
like you can't get her. And I got her and
she was great, she told me. By the way, one
(17:10):
thing that's in here I don't want to give away
too much is how to make prison lipstick.
Speaker 3 (17:13):
So if you want to know that, she gives the
recipe in the book news you can use, ma'am.
Speaker 1 (17:19):
But since then, I think, yes, it's become so politicized.
Speaker 3 (17:23):
I mean Durham. Look, Durham gets slammed in the book.
Speaker 1 (17:25):
I talked to a guy named Igor Denchenko, who was charged, tried,
and acquitted.
Speaker 12 (17:30):
Special Counsel John Durham's investigation into the FBI's targeting of
Donald Trump in twenty sixteen suffered a blow Tuesday when
Igor Danchenko, a think tank analyst accused of blyd the
FBI about his role in the creation of a dossier
about former President Trump, was found not guilty. In three years,
Durham has made little headway on his original mandate. His
(17:53):
record so far two acquittals and one plea deal.
Speaker 13 (17:56):
The big thing for John Durham is that his investigator,
his specially his role as special counsel, is going to
come to an end with a losing record. It's extraordinary
for the federal government to lose two cases, to have
two straight acquittals on trials with Michael Sussman and mister Denchenko.
(18:17):
This case in particular seemed odd that he brought, and
that is because he was fighting his own witnesses. You
don't want to go into trial fighting your own witnesses.
Speaker 2 (18:28):
I think it was it was not a good move
to bring this case because while a case like this,
if you're going to bring it, you usually have the
support of the government usually have the support of the
FBI agents.
Speaker 10 (18:39):
It's the FBI agents who are your main witness witnesses
against a person who's alleged to have made false statements against.
Speaker 3 (18:46):
The toward to the FBI.
Speaker 10 (18:48):
But if Chenko in this case, basically the agents all
testified that he was a good asset. They that this
was a loss to national security because they couldn't use
him anymore, and that they believed that this anonymous phone
call supposedly what he was charged for was that he
lied about an an Hoyst phone call that he received
(19:10):
which put a tie, a alleged strong tie, between Trump
officials and Russian agents. So they said he lied about that,
or at least Dorham did, but the agent said they
believed him. What the larger mandate.
Speaker 14 (19:27):
For Dorham, appointed by Bill Barr to basically survive the
transition to the Biden administration, was to investigate what came
out in a twenty nineteen report by the Inspector General
of numerous irregularities within the FBI that led to the
conviction of Kevin Kleinsmith.
Speaker 13 (19:50):
And that cannot be understated here.
Speaker 10 (19:54):
But the question is why did Dorham bring these cases
when he knew that he had this resistance.
Speaker 2 (20:00):
Maybe it was some kind of personal thing.
Speaker 10 (20:03):
Where he felt he had to It just doesn't make
sense because the witness is his witness is basically testified
on behalf of den Chenko.
Speaker 2 (20:11):
It's unheard, and.
Speaker 1 (20:13):
He you know, it destroyed his life even though he
was not guilty. It was a ridiculous charge. Durham was
overtly political.
Speaker 15 (20:20):
You know.
Speaker 1 (20:20):
Muller is an institutionalist, and there's been controversy, right, He's
taken criticism because he did not and it's and I
talked to various members of Muller's team. He did not
approach this like I would have approached my targets as
a prosecutor at the SDN Y and this could be
you're bad, depending how you're looking at I saw it
as see target, takedown target, and that's sort of how
Jack Smith saw it. Muller was much more like, I
(20:43):
have to protect the privileges and I don't want to,
you know, impede on presidential autonomy. I don't mean this
as a I am very deeply an admirer of Robert
Muller the huge and so are his team members, but
they do second guess him. I think fairly you know,
he never would subpoena. He refused to subpoena Trump and
said he took these written answers, which of course had
(21:05):
no substance to them.
Speaker 11 (21:06):
The President and his legal team have confirmed that the
President submitted written answers to questions from the Special Council.
Speaker 3 (21:13):
So what do we know about the scope.
Speaker 11 (21:14):
Of those questions and what it might mean for the
investigation moving forward?
Speaker 1 (21:18):
Could it be wrapping up?
Speaker 9 (21:22):
Well?
Speaker 15 (21:22):
The Trump legal team has made very clear that we're
not going to see, at least from them, exactly what
was written and presented to the Special Council.
Speaker 3 (21:31):
Earlier this week, the President said.
Speaker 15 (21:33):
It was he himself who came up with the answers,
even though his attorneys.
Speaker 3 (21:38):
Have been working on them for well over a month.
Speaker 15 (21:41):
Of course, the negotiations to even get to this point
have been ongoing as well. And what we can tell
you is that they were limited. The questions themselves were
limited to possible collusion with Russia during the campaign. But
what was off limits off the table, is any potential
obstruction since the president took office. And so we know
(22:03):
that any questions he answered, and we believe there are
about fifteen questions were focused on potential Russian meddaling.
Speaker 1 (22:16):
So but I think from that point on, given the
way that bar spun the report, given the way that
Trump reacted to the report, given the retributive appointment of Durham,
and then since then we've had the two Biden cases,
Hunter and Joe Biden, and the Jack Smith cases. Right,
it's now just basically partisan warfare. So I look, I
(22:37):
try to be optimistic, and I do think this system
needs to be revised, and I do think it needs
to come back after Trump. So I make that picture,
but I'm not so unrealistic to suggest Trump's gonna suddenly
say I'm going to do the right thing for good government.
Speaker 3 (22:50):
Yeah yeah, But let me ask you this question, and
maybe this applies to the people down the chain. Did
the United States versus Trump essentially make this role moot?
Speaker 1 (23:04):
So you're, of course alluding to the immunity decision from
last year. I have a whole bit about that in here.
It did not make it moot, but it made it
much harder. So, first of all, the job isn't isn't
of special counsel isn't necessarily only if you're looking at
a president. I mean, we had you know, the Valerie
Plain case was not really ever focused on George W. Bush,
(23:26):
you know, Hunter Biden certainly wasn't focused on the president.
Speaker 3 (23:31):
So there's still that. But when we're talking about the president, Look.
Speaker 1 (23:34):
There's no denying that that decision went was very both
somehow both very broad and very vague. And I give
a hypothetical in the book of a scenario where, like,
I don't want to give too much away, but it
basically make the point that even if you have the
president sort of caught cold asking the Attorney General to
no pun intended Trump up a case and make something up,
(23:56):
you may not be able to prosecute him because his
the president's dealings with his cabinet members have such broad protection.
One of the pitches I make in the book is
that prosecutors need to be aggressive, and you can't just
look at that there is still room in the immunity decision.
There is this whole gray area of the presumptive immunity.
And if prosecutors just sort of curl into a ball
and just say, well, our hands are tied, then we're
(24:19):
never going to know.
Speaker 3 (24:20):
And so it's better.
Speaker 1 (24:20):
Sometimes your job as a prosecutor is to do what
you have to do and let it play out in court.
So if they don't probe the outer edges of this,
we're never going to know where those boundaries are.
Speaker 3 (24:31):
Yeah, I think it. You know, it is in my lifetime,
and I'm a little older than you have born in
sixty three. There has never been a more powerful expansion
of executive power in my life. No, for sure, people
have tried to take executive power and expand it incrementally,
(24:52):
But that was a judicial decision to expand executive power
in a way that I think speaks to a lot
to why we're watching, in broad daylight a very shameless
cover up in the DJ over the Epstein matter. We're
watching a very shameless polarization of the FBI, Yeah, and
of the DJ with no fear of consequences from these folks. Yeah.
Speaker 1 (25:15):
I mean, look, isn't it incredible when you think back
to Trump won? I mean, what the chances that we
would ever have a Muller appointed in this term right
are zero? And part of that's true, part of that's
Bondie who Trump picked. But you know there were I
mean that that was a two year investigation. He would
write now, he would not let I mean He's made
entirely clear anyone who even thinks about looking at him
(25:38):
would be immediately fired. So yeah, there's been a change.
The courts have really not railed him in rained him
in at all. The immunity opinion was, you know, I
can understand how it would give this sense to whoever's
in the White House. Certainly Trump, but you're certainly never
going not never, but it's going to be very difficult
to prosecute for you for anything you do to the job.
Speaker 3 (26:01):
You wrote a book called Untouchable about how very wealthy
people are able to avoid consequence and avoid legal responsibility
for things. What do you think it says to to
Americans outside of the partisan bubble that there is that
there is a world where where the President of the
(26:26):
United States is essentially beyond the law, where wealthy and
powerful people are able to essentially buy their way out.
I mean, I always go back to the Sacklers. Yeah,
you know, where they bought their way out of liability
for hundreds of things. The sense Jeffrey Epstein.
Speaker 1 (26:45):
I mean, in that prior book, I do a whole
chapter on the first chapter Jeffrey Epstein Investigation.
Speaker 3 (26:50):
Yeah, and I always wonder like what in a country
where the rule of law used to mean something. I
don't think you had just reformed the special prosecutor stuff.
At the end of the day, I think you have
to show as a country a commitment eventually to the
law for everybody to have to live under one set
(27:13):
of rules.
Speaker 1 (27:15):
And this is sort of my closing pitch in the book,
which is, look, the rules matter, the rules, especially, you know,
the special counsel rules. I argue in the end, Look,
there's ways we can improve them and sort of tweak
them and upgrade them.
Speaker 3 (27:27):
But the people matter as much or more than the rules.
Speaker 1 (27:30):
Any lawyer can take a set of rules and manipulate
it to whatever ends he wants. Sometimes people just disagree
on what the rules and the REGs actually mean. But
my ultimate sort of pitch at the end of the
book is directed at President forty eight, whoever that might be,
whether it's name your favorite jd Vance, you know, Gavin Newsom,
anyone in between, which is this, when you take office
(27:53):
President forty eight, you're going to find wreckage of all
sorts of guardrails, traditions, norms.
Speaker 3 (28:00):
Even laws.
Speaker 1 (28:01):
Right, And it's not just the discarding of the special
Council laws, it's the ethics rules, it's Inspectors General, it's
limits on private activity connected to office profiting off of
private businesses.
Speaker 3 (28:13):
You know, you could go on.
Speaker 1 (28:14):
And on, and it's going to be mighty tempting for you,
President forty eight, to leave them in the trash bin. Right,
Like what president really wants that stuff?
Speaker 9 (28:23):
Right?
Speaker 3 (28:24):
Why? Why do you want to have responsible?
Speaker 1 (28:26):
Why do you want to be potentially get in trouble
or get sued or get you know, get indicted. But
this is too important to let go. This is the
most important of all of those. And nobody's pushing back
right now because it has to come from it has
You have to have a president who understands the importance
of this stuff. You have to have a DOJ that's
(28:47):
capable and willing of exercising some degree of independence. I mean,
you know it's shocking now, but like Janet Reno was
the one who basically, you know, approved the expansion of
ken Starr's mandate. I mean, you know, Trump's own DJ
Jeff Sessions recused himself. Rod Rosenstein put in Bob Mother,
Merrick Garland, you know, puts in not just Jack Smith,
(29:09):
but also Robert Hurr to investigate.
Speaker 3 (29:11):
Joe Biden, Yeah, Robert hurt Yeah.
Speaker 1 (29:13):
Even beyond that, David Weiss to go after Hunter, not
go out, but you know, to prosecute what you did
end up doing Hunter Biden. So we've always had and
this is sort of like most all presidents up to
now have always understood there is a need for this.
And as much as I might hate it, I do
have to tolerate it, at least as much as I
might try to undermine it or criticize it. I can't
(29:35):
just go so far as to say there shall be
none of this. And anyone who goes near this, meaning
you know, inward looking investigation and prosecution, anyone who so
much as broaches the possibility will be immediately fired and
probably prosecuted themselves. So that's part of what I mean
by the sea change. And I'm making I'm prevailing upon
forty eight to do better.
Speaker 3 (29:56):
Well. I I I will, I will, I will hope
for the best, plan for the worst. As as you
look back at this, at this history of these special prosecutors,
which one of them? If he As you look at
these cases, do you dive pretty deeply in this? Which
one of them? Do you think had the sort of
largest lost potential or squadared opportunity or or or could
(30:22):
have been more consequential than they ended up. That's a
great question.
Speaker 1 (30:26):
I look, I think the answer is the obvious answer,
which is Muller. Now, Muller. Look, we know Barr distorted
his report, and I quote several several of Muller's team
members who said, you know, we're ripshit about that, to
put it technically, as I was critical of him in
my book.
Speaker 3 (30:40):
But here's here's the thing. So we all remember Muller.
Speaker 1 (30:43):
You know, when he got to the obstruction part right
in the Russian interference, he said, there's no criminal conspiracy,
no evidence of criminal conspiracy, not no collusion.
Speaker 3 (30:53):
But no.
Speaker 1 (30:53):
But when he got to obstruction, he said, well, I
didn't reach this question because of the policy against indicting.
But if I could clear my but I can't, so
I won't. You know, you remember that whole thing.
Speaker 16 (31:03):
The regulations concerning your job as Special Council state that
your job is to provide the Attorney General with a
confidential report explaining the prosecution or declination decisions reached by
your office. You recommended declining prosecution of President Trump, and
anyone associated with his campaign because there was insufficient evidence
to convict for a charge of conspiracy with Russian interference
(31:25):
in the twenty sixteen election.
Speaker 3 (31:27):
Is that fair?
Speaker 6 (31:27):
That's fair?
Speaker 16 (31:29):
Was there sufficient evidence to convict President Trump or anyone
else with obstruction of justice?
Speaker 6 (31:37):
We did not make that calculation.
Speaker 16 (31:39):
How could you not have made the calculation with regular
WELLC opinion?
Speaker 6 (31:42):
The OLLC opinion Office and Legal Council indicates that we
cannot indict as sitting president. So one of the tools
that a prosecutor would use is not there.
Speaker 3 (31:51):
Okay, but let me just stop.
Speaker 16 (31:53):
You made the decision on the Russian interference, you couldn't
have indicted the president on that, and you made the
vision on that. But when it came to obstruction, you
threw a bunch of stuff up against the wall to
see what would stick.
Speaker 6 (32:06):
And that is what I would I would not agree
to that characterization at all. What we did is provide
to the Attorney General, in the form of a confidential memorandum,
our understanding of the case those cases that were brought,
those cases or were declined, and that one case where
the president cannot be charged with a crime.
Speaker 3 (32:28):
Okay, but.
Speaker 16 (32:31):
Could you charge the president with a trime after he
left office. Yes, you believe that he committed You could
charge the president nine states with obstruction of justice after
he left office. Yes, Ethically under the ethical standards.
Speaker 6 (32:43):
Well, I'm not certain because I have I looked at
the ethical standards. But oh, i'll see if in opinion
says that the prosecutor why he cannot bring a charge
against the sitting president. Nonetheless, it can continue the investigation
to see if there are any other person who might
be drawn into the conspiracy.
Speaker 3 (33:02):
So I asked several people, was that the right move.
Speaker 1 (33:06):
Muller's team defended that move, but they also said, look,
we didn't know. He could have done either he could
have said what he said, or he could have said
While I can't indict the sitting president under DOJ policy,
I do find there would be sufficient evidence to indict him.
Speaker 3 (33:19):
And there's one.
Speaker 1 (33:20):
Moment when one of his team members says to me,
you know, were there times I sort of fantasized about
just calling a press conference and.
Speaker 3 (33:26):
Saying that, sure, but of course I'm not going to
do that. What's interesting is I asked Mark.
Speaker 1 (33:33):
Toohey, who's a very experienced lawyer, not a partisan guy,
I don't even know if he's a Democrat or Republican
or what. But he was on the committee that drafted
the REGs themselves. And I said, when you said the
Special Council has to state a conclusion that's in the
REGs prosecution or declination, did you mean that to apply
to the president, given that there was this rule in place?
Speaker 3 (33:54):
And he said, of course we did. Like what you know,
he was frustrated. And I will tell you.
Speaker 1 (33:58):
I asked Rod Rosenstein, and who I interviewed for the book,
the same thing. He was supervising Muller, and he said,
I thought Muller was going to give me a thumbs
up thumbs down. Now it's fair to say, but Rosenstein's
one of the ones who aligned with bar and said
there's no obstruction here. So keep that in mind when
you consider that. But I think had Muller been more
Look if Muller's an American hero, I mean, the guy
(34:19):
served in Vietnam, he got shot through the leg, and
he went back to Vietnam. He's the only person, probably
ever who's been nominated by four consecutive presidents at different jobs,
two Democrats, two Republicans, and confirmed unanimously all four times.
So I worshiped the guy, as do his team members.
But if he had decided that issue differently, I think
it could have changed the course of history.
Speaker 3 (34:41):
Was that was that because OLC? Was that because they
were playing in that OLC guideline that they weren't gonna right.
Speaker 1 (34:48):
So what you're talking about here is there is an
opinion memo that goes back to Watergate. It was re
upped during the Clinton era. I actually had the inside
story of why they re upped it during the Clinton era,
which is Bob Ray, who replaced Ken Star, had to decide,
am I going to charge Clinton?
Speaker 10 (35:01):
Now?
Speaker 1 (35:02):
It's the very endgame? And Bob basically the all but
tells me in the book. He says, we had all
the pieces in place to indict and I was like,
what are you nuts? You were gonna indict Bill Clinton?
After his impeachment in two thousand. He was like, look,
I knew we never would have convicted him, but I
felt like, if it was the right thing to do,
I would have done it anyway. Bob Ray wanted to
send a message to the White House, so he had
that opinion re examined so they would see he was serious. Anyway,
(35:26):
that opinion says, it's unco we believe we DJ believe
it's unconstitutional for DJ to indict the sitting president Muller
if you fast forward. Muller then says, because of that,
I can't indict the sitting president. That's pretty uncontroversial. I mean,
not the policy itself, but that it existed at the time.
And therefore I never even reached the question of is
there enough evidence to indict him? However, when he found
(35:49):
there was not enough evidence, he said, so, so why
did he then punt on the second part?
Speaker 3 (35:53):
So I think he was being overly cautious there what
I I don't know if it would have changed the
history of twenty twenty and twenty twenty four, but to
my mind, still remains one of the great Like Trump
has the luck of the devil right right, over and
over again, and people who don't believe in luck. And
(36:15):
I am an empiricist, I but I've seen people with luck.
I'm one of them. I'm the guy that steps one
foot away before the tree falls down. I don't know
what it is, right, but Trump has political luck like
the luck of the devil, like I've never seen before,
and that moment struck me as one of the things
where where people who were from an institutional perspective, believing
(36:42):
that the world depended on the stability of those institutions
and their predictability, did not understand how Trump hacks institutional
predictability for political power.
Speaker 1 (36:53):
No, I think, I think that's exactly right. And you know,
they're one of Muller's team members did say to me,
you know, the heroification of Muller. He is a hero,
but the superheroification, right, the memes and the bobbleheads and
all that he said that we didn't that was not
helpful to us in Muller's office. He basically says, because
(37:14):
it did two things. One inflated these expectations that he
was going to take down Trump, which were never realistic.
You know, he could have stated it, but he couldn't
have indicted. But he said it also really inflamed the
other side, and it gave Trump some political momentum that
they see this guy operating within the executive branch as
someone who's on a vengeance quest And clearly that was
(37:36):
not Muller's approach to the job. In fact, later there's
there's a contrast to be drawn between the way he
did his job and Jack Smith did his job. You know,
Jack Smith was much more of a heat seeking missile.
Different approach, right, but you know, ultimately, look Jack Smith.
The first my first sentence of the Jack Smith chapter
is Jack Smith never had a chance because, as I
(37:56):
said at the time, Rick, you probably saw me saying,
Merrick Garland already has dawdle the way there's going to
be an immunity case. It's going to have to go
to the Supreme Court. There's no way that he gets
There's no way, given the you know two years or
so that Garland let run off of time, that Smith
is going to be able to try a case before
the twenty four election.
Speaker 3 (38:13):
You sure did. And Jack Smith, I think, you know,
never had a chance. But in an alternate universe when
Merrick where Merrick Garland the day they took office, said
Jack go Forth, I believe in my heart of hearts
(38:34):
that Merrick Garland that decision to wait and wait and
wait and wait and wait led to a lot of
the abuses of power we're seeing right now. I think
that there was no accountability after that. I think a
lot of people feel that way. And you know, in
the book. I detail reporting from others about confirming that
Merrick Garland. You were not allowed to say the word
(38:56):
Trump inside the DOJ around Merrick Garland for the first
year and a half. He just wanted to take this
this like myopic approach of we're gonna build from the
bottom up. But I was saying all the time, you're
not gonna get from the guy in face paint and
horns to Donald Trump. There's just not a link there.
Speaker 1 (39:12):
And what he could have done is what what look
Jack Smith sort of I don't know, never met him, whatever,
But he was raised in a similar DOJ tradition as
I was. I was at the SDNY, he was at
the Eastern District of New York. He's a little older
than me, he was before me. But we were all
raised as like that whole thing you build from the
bottom up, that's bull if you have a shot at
that thought.
Speaker 3 (39:31):
I was a mob prosecutor.
Speaker 1 (39:32):
If I had evidence right on a boss or a capo,
I wouldn't go but hold on, let me go all
the way back down here.
Speaker 3 (39:38):
Yeah, let's go get these soldiers here.
Speaker 1 (39:40):
So that was, you know, that was Garland's initial approach,
and finally, as a result of really two things. One
those congressional hearings, you know that the summer of twenty
two that just brought it all back.
Speaker 3 (39:53):
And two the documents.
Speaker 1 (39:55):
I mean, when it turned out that Trump had taken
classified documents, he really did no choice, and so now
he puts in Jack Smith. But by then it's the
end of twenty two, and you know, I do wonder.
I think back, like, if I was ever asked to
do one of these, I would obviously I would never
would be certainly now.
Speaker 3 (40:10):
But would I have accepted if I was Jack Smith, Like.
Speaker 1 (40:13):
I would have done the back of the envelope math
probably and been like, if he wins the election, which
is at the time of fifty to fifty chance, this
is all going to be in vain.
Speaker 3 (40:23):
So I don't know, really, I think the documents case, again,
the timeframe didn't work, But that case, to my mind,
I've rarely seen greater corruption in a judge. Oh, I think,
can a greater ambition in a judge, But that case,
you and I both been in government. If we had
taken home classified documents, top secret documents, sci documents, we
(40:47):
would be in That to me was always the strongest
evidence there was a little bit of controversy. I will
tell you.
Speaker 1 (40:51):
Within Jack Smith's team, some of them did not like
the fact that he indicted in Florida, not because necessarily
because of canon. They just thought he should have indicted
They would have had a much better jury pull in
DC right for the in DC for sure case. So
I don't have an answer why, but I know that
some of Jacksmith's team members were pissed at that decision.
Speaker 3 (41:10):
You know. Interesting Well, Ellie Honig, thank you for coming
on the Lincoln Project Podcast today, folks. The book is
coming out on the sixteenth of September. It is called
When You Come at the King. It is a history
of prosecuting presidents. Maybe we'll get back to that someday soon,
I hope so. And I wish you all the best
on the book. In the book too, Ellie, and thank
you for coming on. We'll talk to you great to
(41:31):
see Rick. Thanks for having me. Thanks man.
Speaker 17 (41:36):
The Lincoln Project Podcast is a Lincoln Project production executive
produced by Whitney Hayes, then Howe and Joey Wertner Cheney,
edited by Riley Maine. Hey, folks, if you want to
support The Lincoln Project's work against Donald Trump, Elon Musk,
and this MAGA craziness. Go to action dot Lincoln Project
dot us slash hel LP if you'd like to get
in touch, or have suggestions for a guest or a
(41:57):
show topic, or just want to say hi. Our email
podcast at Lincoln Project dot us for our Marga friends.
Please no more nudes. Thanks so much, and we'll talk
to you again next time, and good luck,
But these cases are life or death. I mean they
all understood. Every one of these people basically understood. Some
of them said to me, no matter what I do
the rest of my life, my work on this case
will be in my obituary.
Speaker 2 (00:12):
Your attack will not be an easy one.
Speaker 3 (00:14):
Your enemy is well trained, welling, but.
Speaker 4 (00:18):
Is not a liberal America and is conservative America, the
United States of America.
Speaker 3 (00:28):
Hey everybody, it's Rick Wilson. Welcome back to the Lincoln
Project podcast. As always, thank you for joining us. We
appreciate all of our listeners who like and share and
promote our content. Every week. The podcast has been growing
at a at leaps and bounds, and it's all down
to y'all. Thank you so much. I am thrilled to
be joined today by one of the smartest legal analysts
in this country, Ellie Honing, is here to talk to
(00:50):
us about a tremendous new book he has coming out
on the sixteenth of September. It is called When You
Come at the King, a line that most America are
familiar with only through the wire, but it's a great
insight into how investigations of presidents have gone in this country.
(01:13):
And I'm so looking forward to talking today Ali about
this because for a long time, Americans believe that the
president had to be accountable, had to follow the law,
had to do the things that every other American had
to do. That world has changed a lot. But walk
us through this history you've written, which is a fascinating
look inside investigations of American presidents, how they have been
(01:37):
conducted in the past, how that's changed in the current moment,
and why it's important that presidents still have to be
accountable to the American peace. Sure, so thank you for
having me. Rick. First of all, it's great to see you.
Here's the book.
Speaker 1 (01:48):
You know, they tell you always have the book ready
to display for our viewers. Here it is, so you know,
I love that you noticed the title, because yes, indeed
that is attributed to.
Speaker 3 (01:58):
Omar from the wire.
Speaker 1 (02:00):
However, I learned in the research, not surprisingly, I guess
that that notion when you come at the King you
better not miss goes back hundreds of years philosophers, Machiavelli, Emerson.
But of course no one said it better than Omar. Right,
it means two things really. First of all, you know
I talked in this book on record thirty five different
people who've been involved in these cases firsthand over the years.
(02:21):
Watergate prosecutors, people from Ken Starr's team, Bill Clinton's defense team,
lawyers for Joe Biden, Hunter Biden, Donald Trump, I mean,
Muller's team, you name it, right, And one thing that
came through to me, Look, I was a prosecutor, so
I know the intensity of any case. But these cases
are life or death. I mean they all understood. Every
one of these people basically understood. Some of them said
(02:43):
to me, no matter what I do the rest of
my life, my work on this case will be in
my obituary. And so the stakes are so heightened in
some instances that leads to heroic conduct and others it
leads to disastrous conduct. The other thing, though, as you
alluded to, Rick, the world is very different. What we
are seeing now in Trump two point zero is fundamentally different,
(03:06):
not just in degree but in kind from everything we've
seen going back, including Trump one. I should say, but
I think if you had to split the world into
two historical eras, it would be ulysses As Grant, who
appointed the first ever one of these special councils up
to now, and then Trump two point zero is just
its own era, and I think when you get the
(03:26):
broad historical sweep, you'll see that some of the things
that both you know that Trump and to an extent
Biden Clinton, whoever has been under investigation, George Bush, have
done go back to have the roots in Watergate or
even before that.
Speaker 3 (03:39):
But what Trump's doing now is fundamentally different, you know,
the modern era of presidential investigations. Obviously before in the
in the pre Trump era, Nixon was the pinnacle. Nixon
was the sort of the apotheosis of shady presidential behavior
in the minds of most people, and the investigations that
ended up result in his resignation.
Speaker 5 (04:01):
It was a political scandal that changed our country forever,
beginning with the break in at Democratic National headquarters in
the Watergate Office complex, in ending in the resignation of
President Richard Nixon.
Speaker 6 (04:12):
He always saw enemies, He always saw people in the shadows.
Speaker 3 (04:16):
And his motto, I believe, was do unto others before
they have a chance.
Speaker 4 (04:22):
To do unto you. That's enough. Have never been a quitter.
The leave office before my term is completed as abhorrent
to every instinct in my body. But as president, I
must put the interests of America first. Therefore, I shall
(04:44):
resign the presidency effective at noon tomorrow.
Speaker 3 (04:47):
We're viewed as sort of a pattern setting way that
you looked at illegality in the White House, illegality in
the executive and to a large degree, no president I
mean between Nixon and today face that level of existential scrutiny.
(05:10):
I mean Reagan with Iran contra.
Speaker 7 (05:14):
My fellow Americans. I've said on several occasions that I
wouldn't comment about the recent Congressional hearings on the Iran
contramatter until the hearings were over. Well, that time has come,
so tonight I want to talk about some of the
lessons we've learned, but rest assured that's not my sole
subject this evening. I also want to talk about the
(05:35):
future and getting on with things, because the people's business
is waiting. These past nine months have been confusing and
painful ones for the country. I know you have doubts
in your own minds about what happened in this whole episode.
What I hope is not in doubt, however, is my
commitment to the investigations themselves. So far, we've had four
(05:58):
investigations by the Justice Dear Department, the Tower Board, the
Independent Council, and the Congress. I requested three of those investigations,
and I endorsed and cooperated fully with the fourth, the
congressional hearings, supplying over two hundred and fifty thousand pages
of White House documents, including parts of my own private diaries.
Speaker 3 (06:20):
Clinton with his various personal stuff.
Speaker 8 (06:23):
Another extraordinary day in Washington is the intern sex scandal
involving President Clinton continues to unravel again today with PLO
chairman Yasser Arafat at his side. Clinton denies having a
sexual relationship with White House intern Monica Lewinsky and that
he asked her to lie about it to investigators. Meanwhile,
across town, Whitewater Independent Council can start pledges to conclude
(06:44):
his investigation.
Speaker 3 (06:45):
As fast as possible.
Speaker 8 (06:47):
The next forty eight hours could be critical as we
get the latest information on this fast movie story and
what it could mean to the Clinton presidency.
Speaker 3 (06:54):
All these sort of were a background risk for President.
Talk to us about how it evolved in the pre
Trump era between Nixon and Trump.
Speaker 1 (07:07):
So a couple things changed over the course of that era.
And you're right, by the way, I think that the
Nixon prosecution remains the gold standard. And I talked to
Jill Winebanks and James Quarrels, both of whom were twenty
six and thirty at the time. And now you can
do the math on what they are now. But great people.
And you know, they took me inside that case. They
told me what it was like the Sunday morning after
(07:30):
the Saturday night massacre.
Speaker 3 (07:31):
Right.
Speaker 1 (07:32):
Jill has this amazing experience in the book where she's
at a wedding. She couldn't get a day off, and
she's at a wedding. She finally she got to go
to New York City and she comes back from this
wedding at midnight on Saturday. This is of course before
the days of phones and the internet, and the desk
clock hands are a piece of paper that says the
office has been seized by the FBI. Get back here immediately.
So she goes back down Sunday morning, first thing, and
there's police tape on her desk. And if you know, Jill,
(07:54):
I'm sure some of your listeners of viewers do, what
does she do? She just starts ripping it off and
one of the guard and says, right, one of the
guards says, I wouldn't do that.
Speaker 3 (08:02):
Ma'am, and she just ignores him the.
Speaker 4 (08:04):
Matter of your being.
Speaker 7 (08:06):
I know you don't like the phrase a lady lawyer.
A lady lawyer came up time and time again.
Speaker 9 (08:11):
Well, I had a variety of problems because I was
a woman. I do object to the term lady lawyer.
I'm a trial lawyer, or a criminal lawyer, or a litigator.
I am not a lady lawyer. There is no such
thing as a lady lawyer unless that's the area of
law specializing in legal problems of women, which is not
what I do. I had problems of discrimination. I was
(08:32):
the first woman hired as a trial lawyer, and my
bosses saw trial lawyers as tough ex marines who smokes
cigars and intimidated witnesses. I didn't do that. I didn't
fit their stereotype, and so for that reason I had
some problems as a woman. And once I proved to
them that a woman who is a lawyer is simply
(08:53):
a lawyer and can do the same job in her
own way, they let me be and gave me trials.
Speaker 1 (09:00):
And you know, Jim Quarrels and Jill Bow tell me
this story where the prosecutors got together.
Speaker 3 (09:05):
They didn't know.
Speaker 1 (09:05):
Okay, Archibald Cox has been fired. The Ag Elliott Richards,
and the Deputy Ag William Buckle's house have resigned in protest.
They didn't know if they had been fired. In fact,
the New York Times reported that everyone had been fired wrongly.
And they're sitting there and Archibald Cox, this venerated figure,
comes in and he tells the team. He says, don't
give him what he wants. You keep doing your work
(09:27):
until unlesson until you hear otherwise. And they both said
that was all we needed to hear. And then eventually
Leon you know, Nixon didn't go all the way, right,
I mean, I'm not making any excuses for the Saturday massacre.
But two weeks later he allows the appointment of Leon
Joorski and they continue on their business. Chris subpoena the tapes,
the Supreme Court rules against Nixon, and then he resigned, So,
(09:48):
you know, and Jill's so funny because she was saying,
I was trying to get Leon je Orski to indict
him every day, and then when he resigned, he said,
now we can really indict him. He's not even the
president anymore. But then he gets parted Jill even said
after the pardon, she even research whether she could still
somehow prosecute him despite the party, but concluded that she
could not. But you know, look, every president, and again
(10:08):
I'm going to exclude the current Trump because he's what
he's doing is differently, but virtually every president, they have
a big bit of a mixed record, but has tried
to undermine or deflect or obstruct the investigations. But no
one has quite gone all the way to where we
are now, which is nobody will be appointed to look
at me or anyone around me, ever, and if I
(10:29):
get any with it, anyone has our will. The title
of the book, you know, you best not miss I'm
coming for you retribution.
Speaker 3 (10:38):
You know, as you said, every president who gets investigated
for things, and folks, Republicans and Democrats alike, have all
been under special counsel investigations over time. And but isn't
the difference that at that time that it was a
part of their A part of their objections to it
(11:00):
were the protection of executive power within bounds, and part
of it was their legal defense strategies for these things.
But now it is just completely there is no you know,
Trump has taken on this sort of you know, let
tat SAMOI, yeah, approach. He does not care about the
legality of anything. You know, it's that it's that evolution
(11:23):
from Nixon of the president. So is it it's legal, right, but.
Speaker 4 (11:26):
When the president does it, that means that it is
not illegal by definition exactly.
Speaker 3 (11:32):
Now Trump really, I mean, I think Nixon was bullshitting
and playing, you know, playing, playing, playing, he was bluffing.
But Trump doesn't bluff on this. He believes that he is.
Speaker 1 (11:41):
The strategy has has evolved, for sure, and now it's
at an extreme. And you know, it's interesting because one
thing I was trying to figure out. Look, I was
born in nineteen seventy five, so I didn't live through Watergate.
And I asked Carl Bernstein, who everyone knows who that is.
But I talked to Karl for this book and Garrett Graff,
who's a great historian who studied, Oh Watergate, great, great,
(12:02):
And I said to both of them, how on earth
did Nixon survive? Because look, Watergate broke and Carl had
written the story linking a check from the Burglars to
to a a Nixon campaign before the seventy two election,
and Nixon clobbers in the seventy two election, he wins
forty nine states, He wins five hundred something electoral hotes.
(12:24):
And you know, I asked Jill. Jill said, you know,
it's seen now as a FATA company that Nixon will be.
Speaker 3 (12:28):
It would be toppled. But it was anything Bud. He
was a colossus.
Speaker 1 (12:32):
But Carl said to me, you know, in those days,
if the president denied it, generally it was accepted. I mean,
we didn't blindly accept it, but the public we didn't.
At the Washington Post, Carl said, Garatgrafht said the same thing,
and Garrett said, also, things move much more slowly than
it was, like a slower process. He dragged it out
(12:52):
and it wasn't until really those tapes started to emerge
and John Deane testified and Butterfly. So that was a
difference then and now, which is back then the president
had more or less the benefit of the doubt, not blindly,
but more or less. And now, largely because of Watergate,
we no longer think that way, and largely because especially
because of Trump. But you know, different, it's interesting when
(13:13):
you look back at what the record is of different
presidents like George Bush, and Reagan hated the Iran Contra investigation,
but they generally refrain from publicly attacking it and undermining.
In fact, one of the prosecutors on Iron Contra said, look,
they were cooperative, like when we subpoena documents, they gave
him to us, you know. And then it varies like
Clinton sort of refrained from overtly slamming Star, but his
(13:37):
team sure did try to undermine him in a way
that I think is within filds plight. So it's evolved
over theirs. But now it's just like Trump's like, why
do I even have to have a strategy? My strategy
is just like.
Speaker 3 (13:46):
You has has has there become a sort of societal
expectation on the left and the right that special prosecutors
are gonna perform a transitional miracle. On the left, Robert
Muller was seen as the guy who was going to
blow the Russia Gate story wide open and take down Trump.
(14:08):
On the right, John Durham was considered the guy who
was going to reveal the corruptillary Biden and neither of them,
and I will I will, I will say the Mueller
investigation was choked out by bar by the subject of
my first Bill bar yep, correct, hatchet you got it
(14:28):
of the highest or again. But both of those seemed
to have have left a very bad taste in the
mouths of the partisans who believed they were going to
get a political outcome from a legal investigation. Has that
poisoned the well for for legitimate prosecutions? Is it is?
Speaker 10 (14:51):
It?
Speaker 3 (14:51):
Has it become just two partisan yeah? You know, uh
and and outside the rule of law and just purely
like my team their team.
Speaker 1 (14:59):
I think largely it has come to that. And I
hate to say it, but I do think you know,
there used to be let me go back to the
one before Muller was Scooter Libby?
Speaker 3 (15:08):
Right when?
Speaker 1 (15:08):
So this is during the George W. Bush administration. Pa
Fitzgerald's account, right, you remember this, and it has to
do with the leaking of the identity of the SAA.
Speaker 3 (15:16):
I remember this for a many.
Speaker 11 (15:17):
Right, Okay, Today in a Washington courtroom, Judge Reggie Walton
threw the book at Lewis Scooter Libby. He sentenced the
former top a to Vice President Cheney to thirty months
in prison. Libby, you may recall, was convicted in March
of obstructing justice and lying to a grand jury and
the CIA leak case involving agent Valerie Playing. It was
a complicated trial that had to do with building a
(15:38):
case for war. To some observers, that also had a
lot to do with politics and payback. But the judge,
who expressed a sense of sadness in today's sentence, said
the evidence of his guilt was overwhelming. Questions remain, including
the possibility of a presidential pardon, but this much is certain. Today.
Scooter Libby became the highest ranking White House official to
(15:59):
be convicted in twenty years, and the American people were
reminded that even people in power with friends in high places,
are not above the law.
Speaker 3 (16:08):
George W.
Speaker 1 (16:09):
Bush didn't like it, but he publicly said the only
things he ever said about Pat Fitzgeralder, He's a thorough guy.
I'm gonna let him do what he's got to do,
and the chips fall what they may. And I talk
about in the book how he was actually very very
close to indicting Carl Rove. It came down to a
razor's edge decision, and you know, he indicted Scooter Libby,
tries and convicts him, and he ends up, by the way,
(16:29):
the only person. Fun fact, Rick, I'm gonna test your
trivia memory. Who is the only person ever to get
locked up on that case? Because Scooter Libby did not right,
he gets commuted his commuting and it gets pardoned. It's
a little bit of a trick question.
Speaker 3 (16:45):
Oh, it's gonna come to me in a second. It's
a female. I'll give you a hint.
Speaker 1 (16:49):
Yeah, Judy Miller, reporter from the New York Times. Judy
Miller to not give up her sources, and she went
to prison for eighty five days. And by the way,
she talked to me for this book. Was told she
doesn't talk anymore, and she no, she's sort of out
of them. I was told she's like a JD. Salinger type,
like you can't get her. And I got her and
she was great, she told me. By the way, one
(17:10):
thing that's in here I don't want to give away
too much is how to make prison lipstick.
Speaker 3 (17:13):
So if you want to know that, she gives the
recipe in the book news you can use, ma'am.
Speaker 1 (17:19):
But since then, I think, yes, it's become so politicized.
Speaker 3 (17:23):
I mean Durham. Look, Durham gets slammed in the book.
Speaker 1 (17:25):
I talked to a guy named Igor Denchenko, who was charged, tried,
and acquitted.
Speaker 12 (17:30):
Special Counsel John Durham's investigation into the FBI's targeting of
Donald Trump in twenty sixteen suffered a blow Tuesday when
Igor Danchenko, a think tank analyst accused of blyd the
FBI about his role in the creation of a dossier
about former President Trump, was found not guilty. In three years,
Durham has made little headway on his original mandate. His
(17:53):
record so far two acquittals and one plea deal.
Speaker 13 (17:56):
The big thing for John Durham is that his investigator,
his specially his role as special counsel, is going to
come to an end with a losing record. It's extraordinary
for the federal government to lose two cases, to have
two straight acquittals on trials with Michael Sussman and mister Denchenko.
(18:17):
This case in particular seemed odd that he brought, and
that is because he was fighting his own witnesses. You
don't want to go into trial fighting your own witnesses.
Speaker 2 (18:28):
I think it was it was not a good move
to bring this case because while a case like this,
if you're going to bring it, you usually have the
support of the government usually have the support of the
FBI agents.
Speaker 10 (18:39):
It's the FBI agents who are your main witness witnesses
against a person who's alleged to have made false statements against.
Speaker 3 (18:46):
The toward to the FBI.
Speaker 10 (18:48):
But if Chenko in this case, basically the agents all
testified that he was a good asset. They that this
was a loss to national security because they couldn't use
him anymore, and that they believed that this anonymous phone
call supposedly what he was charged for was that he
lied about an an Hoyst phone call that he received
(19:10):
which put a tie, a alleged strong tie, between Trump
officials and Russian agents. So they said he lied about that,
or at least Dorham did, but the agent said they
believed him. What the larger mandate.
Speaker 14 (19:27):
For Dorham, appointed by Bill Barr to basically survive the
transition to the Biden administration, was to investigate what came
out in a twenty nineteen report by the Inspector General
of numerous irregularities within the FBI that led to the
conviction of Kevin Kleinsmith.
Speaker 13 (19:50):
And that cannot be understated here.
Speaker 10 (19:54):
But the question is why did Dorham bring these cases
when he knew that he had this resistance.
Speaker 2 (20:00):
Maybe it was some kind of personal thing.
Speaker 10 (20:03):
Where he felt he had to It just doesn't make
sense because the witness is his witness is basically testified
on behalf of den Chenko.
Speaker 2 (20:11):
It's unheard, and.
Speaker 1 (20:13):
He you know, it destroyed his life even though he
was not guilty. It was a ridiculous charge. Durham was
overtly political.
Speaker 15 (20:20):
You know.
Speaker 1 (20:20):
Muller is an institutionalist, and there's been controversy, right, He's
taken criticism because he did not and it's and I
talked to various members of Muller's team. He did not
approach this like I would have approached my targets as
a prosecutor at the SDN Y and this could be
you're bad, depending how you're looking at I saw it
as see target, takedown target, and that's sort of how
Jack Smith saw it. Muller was much more like, I
(20:43):
have to protect the privileges and I don't want to,
you know, impede on presidential autonomy. I don't mean this
as a I am very deeply an admirer of Robert
Muller the huge and so are his team members, but
they do second guess him. I think fairly you know,
he never would subpoena. He refused to subpoena Trump and
said he took these written answers, which of course had
(21:05):
no substance to them.
Speaker 11 (21:06):
The President and his legal team have confirmed that the
President submitted written answers to questions from the Special Council.
Speaker 3 (21:13):
So what do we know about the scope.
Speaker 11 (21:14):
Of those questions and what it might mean for the
investigation moving forward?
Speaker 1 (21:18):
Could it be wrapping up?
Speaker 9 (21:22):
Well?
Speaker 15 (21:22):
The Trump legal team has made very clear that we're
not going to see, at least from them, exactly what
was written and presented to the Special Council.
Speaker 3 (21:31):
Earlier this week, the President said.
Speaker 15 (21:33):
It was he himself who came up with the answers,
even though his attorneys.
Speaker 3 (21:38):
Have been working on them for well over a month.
Speaker 15 (21:41):
Of course, the negotiations to even get to this point
have been ongoing as well. And what we can tell
you is that they were limited. The questions themselves were
limited to possible collusion with Russia during the campaign. But
what was off limits off the table, is any potential
obstruction since the president took office. And so we know
(22:03):
that any questions he answered, and we believe there are
about fifteen questions were focused on potential Russian meddaling.
Speaker 1 (22:16):
So but I think from that point on, given the
way that bar spun the report, given the way that
Trump reacted to the report, given the retributive appointment of Durham,
and then since then we've had the two Biden cases,
Hunter and Joe Biden, and the Jack Smith cases. Right,
it's now just basically partisan warfare. So I look, I
(22:37):
try to be optimistic, and I do think this system
needs to be revised, and I do think it needs
to come back after Trump. So I make that picture,
but I'm not so unrealistic to suggest Trump's gonna suddenly
say I'm going to do the right thing for good government.
Speaker 3 (22:50):
Yeah yeah, But let me ask you this question, and
maybe this applies to the people down the chain. Did
the United States versus Trump essentially make this role moot?
Speaker 1 (23:04):
So you're, of course alluding to the immunity decision from
last year. I have a whole bit about that in here.
It did not make it moot, but it made it
much harder. So, first of all, the job isn't isn't
of special counsel isn't necessarily only if you're looking at
a president. I mean, we had you know, the Valerie
Plain case was not really ever focused on George W. Bush,
(23:26):
you know, Hunter Biden certainly wasn't focused on the president.
Speaker 3 (23:31):
So there's still that. But when we're talking about the president, Look.
Speaker 1 (23:34):
There's no denying that that decision went was very both
somehow both very broad and very vague. And I give
a hypothetical in the book of a scenario where, like,
I don't want to give too much away, but it
basically make the point that even if you have the
president sort of caught cold asking the Attorney General to
no pun intended Trump up a case and make something up,
(23:56):
you may not be able to prosecute him because his
the president's dealings with his cabinet members have such broad protection.
One of the pitches I make in the book is
that prosecutors need to be aggressive, and you can't just
look at that there is still room in the immunity decision.
There is this whole gray area of the presumptive immunity.
And if prosecutors just sort of curl into a ball
and just say, well, our hands are tied, then we're
(24:19):
never going to know.
Speaker 3 (24:20):
And so it's better.
Speaker 1 (24:20):
Sometimes your job as a prosecutor is to do what
you have to do and let it play out in court.
So if they don't probe the outer edges of this,
we're never going to know where those boundaries are.
Speaker 3 (24:31):
Yeah, I think it. You know, it is in my lifetime,
and I'm a little older than you have born in
sixty three. There has never been a more powerful expansion
of executive power in my life. No, for sure, people
have tried to take executive power and expand it incrementally,
(24:52):
But that was a judicial decision to expand executive power
in a way that I think speaks to a lot
to why we're watching, in broad daylight a very shameless
cover up in the DJ over the Epstein matter. We're
watching a very shameless polarization of the FBI, Yeah, and
of the DJ with no fear of consequences from these folks. Yeah.
Speaker 1 (25:15):
I mean, look, isn't it incredible when you think back
to Trump won? I mean, what the chances that we
would ever have a Muller appointed in this term right
are zero? And part of that's true, part of that's
Bondie who Trump picked. But you know there were I
mean that that was a two year investigation. He would
write now, he would not let I mean He's made
entirely clear anyone who even thinks about looking at him
(25:38):
would be immediately fired. So yeah, there's been a change.
The courts have really not railed him in rained him
in at all. The immunity opinion was, you know, I
can understand how it would give this sense to whoever's
in the White House. Certainly Trump, but you're certainly never
going not never, but it's going to be very difficult
to prosecute for you for anything you do to the job.
Speaker 3 (26:01):
You wrote a book called Untouchable about how very wealthy
people are able to avoid consequence and avoid legal responsibility
for things. What do you think it says to to
Americans outside of the partisan bubble that there is that
there is a world where where the President of the
(26:26):
United States is essentially beyond the law, where wealthy and
powerful people are able to essentially buy their way out.
I mean, I always go back to the Sacklers. Yeah,
you know, where they bought their way out of liability
for hundreds of things. The sense Jeffrey Epstein.
Speaker 1 (26:45):
I mean, in that prior book, I do a whole
chapter on the first chapter Jeffrey Epstein Investigation.
Speaker 3 (26:50):
Yeah, and I always wonder like what in a country
where the rule of law used to mean something. I
don't think you had just reformed the special prosecutor stuff.
At the end of the day, I think you have
to show as a country a commitment eventually to the
law for everybody to have to live under one set
(27:13):
of rules.
Speaker 1 (27:15):
And this is sort of my closing pitch in the book,
which is, look, the rules matter, the rules, especially, you know,
the special counsel rules. I argue in the end, Look,
there's ways we can improve them and sort of tweak
them and upgrade them.
Speaker 3 (27:27):
But the people matter as much or more than the rules.
Speaker 1 (27:30):
Any lawyer can take a set of rules and manipulate
it to whatever ends he wants. Sometimes people just disagree
on what the rules and the REGs actually mean. But
my ultimate sort of pitch at the end of the
book is directed at President forty eight, whoever that might be,
whether it's name your favorite jd Vance, you know, Gavin Newsom,
anyone in between, which is this, when you take office
(27:53):
President forty eight, you're going to find wreckage of all
sorts of guardrails, traditions, norms.
Speaker 3 (28:00):
Even laws.
Speaker 1 (28:01):
Right, And it's not just the discarding of the special
Council laws, it's the ethics rules, it's Inspectors General, it's
limits on private activity connected to office profiting off of
private businesses.
Speaker 3 (28:13):
You know, you could go on.
Speaker 1 (28:14):
And on, and it's going to be mighty tempting for you,
President forty eight, to leave them in the trash bin. Right,
Like what president really wants that stuff?
Speaker 9 (28:23):
Right?
Speaker 3 (28:24):
Why? Why do you want to have responsible?
Speaker 1 (28:26):
Why do you want to be potentially get in trouble
or get sued or get you know, get indicted. But
this is too important to let go. This is the
most important of all of those. And nobody's pushing back
right now because it has to come from it has
You have to have a president who understands the importance
of this stuff. You have to have a DOJ that's
(28:47):
capable and willing of exercising some degree of independence. I mean,
you know it's shocking now, but like Janet Reno was
the one who basically, you know, approved the expansion of
ken Starr's mandate. I mean, you know, Trump's own DJ
Jeff Sessions recused himself. Rod Rosenstein put in Bob Mother,
Merrick Garland, you know, puts in not just Jack Smith,
(29:09):
but also Robert Hurr to investigate.
Speaker 3 (29:11):
Joe Biden, Yeah, Robert hurt Yeah.
Speaker 1 (29:13):
Even beyond that, David Weiss to go after Hunter, not
go out, but you know, to prosecute what you did
end up doing Hunter Biden. So we've always had and
this is sort of like most all presidents up to
now have always understood there is a need for this.
And as much as I might hate it, I do
have to tolerate it, at least as much as I
might try to undermine it or criticize it. I can't
(29:35):
just go so far as to say there shall be
none of this. And anyone who goes near this, meaning
you know, inward looking investigation and prosecution, anyone who so
much as broaches the possibility will be immediately fired and
probably prosecuted themselves. So that's part of what I mean
by the sea change. And I'm making I'm prevailing upon
forty eight to do better.
Speaker 3 (29:56):
Well. I I I will, I will, I will hope
for the best, plan for the worst. As as you
look back at this, at this history of these special prosecutors,
which one of them? If he As you look at
these cases, do you dive pretty deeply in this? Which
one of them? Do you think had the sort of
largest lost potential or squadared opportunity or or or could
(30:22):
have been more consequential than they ended up. That's a
great question.
Speaker 1 (30:26):
I look, I think the answer is the obvious answer,
which is Muller. Now, Muller. Look, we know Barr distorted
his report, and I quote several several of Muller's team
members who said, you know, we're ripshit about that, to
put it technically, as I was critical of him in
my book.
Speaker 3 (30:40):
But here's here's the thing. So we all remember Muller.
Speaker 1 (30:43):
You know, when he got to the obstruction part right
in the Russian interference, he said, there's no criminal conspiracy,
no evidence of criminal conspiracy, not no collusion.
Speaker 3 (30:53):
But no.
Speaker 1 (30:53):
But when he got to obstruction, he said, well, I
didn't reach this question because of the policy against indicting.
But if I could clear my but I can't, so
I won't. You know, you remember that whole thing.
Speaker 16 (31:03):
The regulations concerning your job as Special Council state that
your job is to provide the Attorney General with a
confidential report explaining the prosecution or declination decisions reached by
your office. You recommended declining prosecution of President Trump, and
anyone associated with his campaign because there was insufficient evidence
to convict for a charge of conspiracy with Russian interference
(31:25):
in the twenty sixteen election.
Speaker 3 (31:27):
Is that fair?
Speaker 6 (31:27):
That's fair?
Speaker 16 (31:29):
Was there sufficient evidence to convict President Trump or anyone
else with obstruction of justice?
Speaker 6 (31:37):
We did not make that calculation.
Speaker 16 (31:39):
How could you not have made the calculation with regular
WELLC opinion?
Speaker 6 (31:42):
The OLLC opinion Office and Legal Council indicates that we
cannot indict as sitting president. So one of the tools
that a prosecutor would use is not there.
Speaker 3 (31:51):
Okay, but let me just stop.
Speaker 16 (31:53):
You made the decision on the Russian interference, you couldn't
have indicted the president on that, and you made the
vision on that. But when it came to obstruction, you
threw a bunch of stuff up against the wall to
see what would stick.
Speaker 6 (32:06):
And that is what I would I would not agree
to that characterization at all. What we did is provide
to the Attorney General, in the form of a confidential memorandum,
our understanding of the case those cases that were brought,
those cases or were declined, and that one case where
the president cannot be charged with a crime.
Speaker 3 (32:28):
Okay, but.
Speaker 16 (32:31):
Could you charge the president with a trime after he
left office. Yes, you believe that he committed You could
charge the president nine states with obstruction of justice after
he left office. Yes, Ethically under the ethical standards.
Speaker 6 (32:43):
Well, I'm not certain because I have I looked at
the ethical standards. But oh, i'll see if in opinion
says that the prosecutor why he cannot bring a charge
against the sitting president. Nonetheless, it can continue the investigation
to see if there are any other person who might
be drawn into the conspiracy.
Speaker 3 (33:02):
So I asked several people, was that the right move.
Speaker 1 (33:06):
Muller's team defended that move, but they also said, look,
we didn't know. He could have done either he could
have said what he said, or he could have said
While I can't indict the sitting president under DOJ policy,
I do find there would be sufficient evidence to indict him.
Speaker 3 (33:19):
And there's one.
Speaker 1 (33:20):
Moment when one of his team members says to me,
you know, were there times I sort of fantasized about
just calling a press conference and.
Speaker 3 (33:26):
Saying that, sure, but of course I'm not going to
do that. What's interesting is I asked Mark.
Speaker 1 (33:33):
Toohey, who's a very experienced lawyer, not a partisan guy,
I don't even know if he's a Democrat or Republican
or what. But he was on the committee that drafted
the REGs themselves. And I said, when you said the
Special Council has to state a conclusion that's in the
REGs prosecution or declination, did you mean that to apply
to the president, given that there was this rule in place?
Speaker 3 (33:54):
And he said, of course we did. Like what you know,
he was frustrated. And I will tell you.
Speaker 1 (33:58):
I asked Rod Rosenstein, and who I interviewed for the book,
the same thing. He was supervising Muller, and he said,
I thought Muller was going to give me a thumbs
up thumbs down. Now it's fair to say, but Rosenstein's
one of the ones who aligned with bar and said
there's no obstruction here. So keep that in mind when
you consider that. But I think had Muller been more
Look if Muller's an American hero, I mean, the guy
(34:19):
served in Vietnam, he got shot through the leg, and
he went back to Vietnam. He's the only person, probably
ever who's been nominated by four consecutive presidents at different jobs,
two Democrats, two Republicans, and confirmed unanimously all four times.
So I worshiped the guy, as do his team members.
But if he had decided that issue differently, I think
it could have changed the course of history.
Speaker 3 (34:41):
Was that was that because OLC? Was that because they
were playing in that OLC guideline that they weren't gonna right.
Speaker 1 (34:48):
So what you're talking about here is there is an
opinion memo that goes back to Watergate. It was re
upped during the Clinton era. I actually had the inside
story of why they re upped it during the Clinton era,
which is Bob Ray, who replaced Ken Star, had to decide,
am I going to charge Clinton?
Speaker 10 (35:01):
Now?
Speaker 1 (35:02):
It's the very endgame? And Bob basically the all but
tells me in the book. He says, we had all
the pieces in place to indict and I was like,
what are you nuts? You were gonna indict Bill Clinton?
After his impeachment in two thousand. He was like, look,
I knew we never would have convicted him, but I
felt like, if it was the right thing to do,
I would have done it anyway. Bob Ray wanted to
send a message to the White House, so he had
that opinion re examined so they would see he was serious. Anyway,
(35:26):
that opinion says, it's unco we believe we DJ believe
it's unconstitutional for DJ to indict the sitting president Muller
if you fast forward. Muller then says, because of that,
I can't indict the sitting president. That's pretty uncontroversial. I mean,
not the policy itself, but that it existed at the time.
And therefore I never even reached the question of is
there enough evidence to indict him? However, when he found
(35:49):
there was not enough evidence, he said, so, so why
did he then punt on the second part?
Speaker 3 (35:53):
So I think he was being overly cautious there what
I I don't know if it would have changed the
history of twenty twenty and twenty twenty four, but to
my mind, still remains one of the great Like Trump
has the luck of the devil right right, over and
over again, and people who don't believe in luck. And
(36:15):
I am an empiricist, I but I've seen people with luck.
I'm one of them. I'm the guy that steps one
foot away before the tree falls down. I don't know
what it is, right, but Trump has political luck like
the luck of the devil, like I've never seen before,
and that moment struck me as one of the things
where where people who were from an institutional perspective, believing
(36:42):
that the world depended on the stability of those institutions
and their predictability, did not understand how Trump hacks institutional
predictability for political power.
Speaker 1 (36:53):
No, I think, I think that's exactly right. And you know,
they're one of Muller's team members did say to me,
you know, the heroification of Muller. He is a hero,
but the superheroification, right, the memes and the bobbleheads and
all that he said that we didn't that was not
helpful to us in Muller's office. He basically says, because
(37:14):
it did two things. One inflated these expectations that he
was going to take down Trump, which were never realistic.
You know, he could have stated it, but he couldn't
have indicted. But he said it also really inflamed the
other side, and it gave Trump some political momentum that
they see this guy operating within the executive branch as
someone who's on a vengeance quest And clearly that was
(37:36):
not Muller's approach to the job. In fact, later there's
there's a contrast to be drawn between the way he
did his job and Jack Smith did his job. You know,
Jack Smith was much more of a heat seeking missile.
Different approach, right, but you know, ultimately, look Jack Smith.
The first my first sentence of the Jack Smith chapter
is Jack Smith never had a chance because, as I
(37:56):
said at the time, Rick, you probably saw me saying,
Merrick Garland already has dawdle the way there's going to
be an immunity case. It's going to have to go
to the Supreme Court. There's no way that he gets
There's no way, given the you know two years or
so that Garland let run off of time, that Smith
is going to be able to try a case before
the twenty four election.
Speaker 3 (38:13):
You sure did. And Jack Smith, I think, you know,
never had a chance. But in an alternate universe when
Merrick where Merrick Garland the day they took office, said
Jack go Forth, I believe in my heart of hearts
(38:34):
that Merrick Garland that decision to wait and wait and
wait and wait and wait led to a lot of
the abuses of power we're seeing right now. I think
that there was no accountability after that. I think a
lot of people feel that way. And you know, in
the book. I detail reporting from others about confirming that
Merrick Garland. You were not allowed to say the word
(38:56):
Trump inside the DOJ around Merrick Garland for the first
year and a half. He just wanted to take this
this like myopic approach of we're gonna build from the
bottom up. But I was saying all the time, you're
not gonna get from the guy in face paint and
horns to Donald Trump. There's just not a link there.
Speaker 1 (39:12):
And what he could have done is what what look
Jack Smith sort of I don't know, never met him, whatever,
But he was raised in a similar DOJ tradition as
I was. I was at the SDNY, he was at
the Eastern District of New York. He's a little older
than me, he was before me. But we were all
raised as like that whole thing you build from the
bottom up, that's bull if you have a shot at
that thought.
Speaker 3 (39:31):
I was a mob prosecutor.
Speaker 1 (39:32):
If I had evidence right on a boss or a capo,
I wouldn't go but hold on, let me go all
the way back down here.
Speaker 3 (39:38):
Yeah, let's go get these soldiers here.
Speaker 1 (39:40):
So that was, you know, that was Garland's initial approach,
and finally, as a result of really two things. One
those congressional hearings, you know that the summer of twenty
two that just brought it all back.
Speaker 3 (39:53):
And two the documents.
Speaker 1 (39:55):
I mean, when it turned out that Trump had taken
classified documents, he really did no choice, and so now
he puts in Jack Smith. But by then it's the
end of twenty two, and you know, I do wonder.
I think back, like, if I was ever asked to
do one of these, I would obviously I would never
would be certainly now.
Speaker 3 (40:10):
But would I have accepted if I was Jack Smith, Like.
Speaker 1 (40:13):
I would have done the back of the envelope math
probably and been like, if he wins the election, which
is at the time of fifty to fifty chance, this
is all going to be in vain.
Speaker 3 (40:23):
So I don't know, really, I think the documents case, again,
the timeframe didn't work, But that case, to my mind,
I've rarely seen greater corruption in a judge. Oh, I think,
can a greater ambition in a judge, But that case,
you and I both been in government. If we had
taken home classified documents, top secret documents, sci documents, we
(40:47):
would be in That to me was always the strongest
evidence there was a little bit of controversy. I will
tell you.
Speaker 1 (40:51):
Within Jack Smith's team, some of them did not like
the fact that he indicted in Florida, not because necessarily
because of canon. They just thought he should have indicted
They would have had a much better jury pull in
DC right for the in DC for sure case. So
I don't have an answer why, but I know that
some of Jacksmith's team members were pissed at that decision.
Speaker 3 (41:10):
You know. Interesting Well, Ellie Honig, thank you for coming
on the Lincoln Project Podcast today, folks. The book is
coming out on the sixteenth of September. It is called
When You Come at the King. It is a history
of prosecuting presidents. Maybe we'll get back to that someday soon,
I hope so. And I wish you all the best
on the book. In the book too, Ellie, and thank
you for coming on. We'll talk to you great to
(41:31):
see Rick. Thanks for having me. Thanks man.
Speaker 17 (41:36):
The Lincoln Project Podcast is a Lincoln Project production executive
produced by Whitney Hayes, then Howe and Joey Wertner Cheney,
edited by Riley Maine. Hey, folks, if you want to
support The Lincoln Project's work against Donald Trump, Elon Musk,
and this MAGA craziness. Go to action dot Lincoln Project
dot us slash hel LP if you'd like to get
in touch, or have suggestions for a guest or a
(41:57):
show topic, or just want to say hi. Our email
podcast at Lincoln Project dot us for our Marga friends.
Please no more nudes. Thanks so much, and we'll talk
to you again next time, and good luck,
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