Transcription
I want to make sure people do understand though that for a grand jury to reject even one of the charges, that is so unbelievably rare. In my experience, I was in the department for 21 years. It never happened.
Hello everyone and welcome to George Conway Explains It All to Sarah. I'm Sarah Longwell, publisher of The Bull Work. And George is away today. And because I had so much fun with Andrew Weissman last time he joined me, I asked him to come back again. Andrew is a law professor at NYU. And you may know him from MSNBC or his podcast with Mary McCord called Main Justice. Andrew, thanks for being here. Thanks for coming back.
>> Great to be here. But you know, when I listen to the title of this podcast, it's like Hamlet without Hamlet. So it's just us two.
>> It's just us two. But here's the thing. It's called George Conway Explains It All because I was doing like a throwback to Clarissa Explains It All, which was like a show on Nickelodeon when I was a teen. Um, let me tell you, he doesn't explain it all. He explains a lot.
>> Exactly.
>> He explains a lot.
>> Exactly.
>> Uh, we at some point and also George and I have already sort of reframed this. We used to say, well, we're going to do a podcast about the legal news, but now it is obviously just a podcast about the illegal news because uh that is all the news fit to print. And obviously the big legal news of the week is the federal indictment of former FBI director James Comey in the Eastern District of Virginia. And I think you've said that this act crossed a red line for the administration, which in a in an administration that is professionalized crossing red lines, um that still seems like this might be a new kind of Rubicon. So, walk me through why this is such a dangerous use of executive power.
>> The way I think about it is what what are the things that are separating us from Russia? Um, you know, when you when I think almost everyone who's listening to this, you know, grew up in America and you're thinking, well, we're not like Russia. Um, and you know, you can add lots of other countries, but I'm going to take them as an example. And one is you don't think of show trials, you think of checks and balances. You think the judiciary, you think of um the Congress, you think that you can't just charge anyone you want. That there grand juries and trial juries and judges. And there's all of this legal process. And the Department of Justice post Watergate operates to care about facts and law. And you don't just for instance have a policy which is we're only going to go get about getting Democrats or you know vice versa. to the Democrats when they're in power saying, "Oh, we're only going to go after Republicans." All of that is like you think, "Well, this is a given. We're a rule of law country." And that sort of political corruption that you see around the globe is something that doesn't happen here because we are sort of this even though we're flawed and there's lots of flaws in our history, we are we aspire to be this shining city on the hill. This is um this is gone. um this is creating the Department of Justice as a loaded gun to be used politically. And um this one of the things I is my big takehome is it doesn't matter if the Comey case is a total loser for Donald Trump because I think it will be. It still works for him in the same way that the executive orders about the law firms. Still works for him because it in it instills fear uh in people and it shuts them up because you're sitting there going, "Oh, here's a guy who has got so much control over every lever of power. He can aim it at anyone and cause incredible damage. Better to be silent." Um, and so, you know, I think James Comey is going to fight like hell, and I all signs are this is an incredibly weak indictment, but I think the damage is done no matter what.
>> So, I'm out here in uh Toronto, which is why I'm in this uh hotel room. Uh we're doing some some live shows and and at the show last night, we were talking about Comey, and I was I was working on a theory. Um, in part because I I I saw Comey um, who who I should say I know a little bit. Uh, we're on uh the Kettering Foundation, like he's a colleague. Um, uh, we're on a board together. But when he did this very sort of passionate push back, he did this video straight to camera. He quotes his daughter. He doesn't name her, but for people who have been following this, he sort of quotes his daughter about refusing to live on our knees. And it was this very defiant post. And and I know James Comey is going to have the best lawyers against their incredibly weak case. And is there not some I understand of course what you mean about the the the chilling of civic spaces, the chilling of people who might speak out or is it possible that James Comey pushing back and winning does something to galvanize people? cuz I I'll say like the the depressing part is the ABCs and the CBSs and the people who cave the law firms when people fight back and they win like Jimmy Kimmel did recently. I feel like it actually has a a good good effect.
>> Absolutely. So, you know, I have been saying that that this this I think will blow up in Donald Trump's face in terms of the specific, but you know, I think of the world as sort of a bell curve and and this is sort of maybe borrowing a page from you, Sarah, in terms of thinking about politics. It's like, you know, you don't have to you don't have to win all the time. You just have to win enough of the people enough of the time not to, you know, to crib from Abraham Lincoln. There's no question the Jimmy Kimmel thing was a huge um spectacular win for the First Amendment and but on the other hand Jimmy Kimmel was able to galvanize public sentiment. He is um widely viewed um what happens to this comedian on late night TV is was sort of widely shared and it was an attack uh that everyone could see as an attack on themselves as well. The sort of the First Amendment right and it also made Donald Trump look so thin skinned. I mean he as as Jimmy Kimmel said like all of this is happening because he can't take a joke. Um which you know was just a wonderful turn of phrase. Um James Comey is a wonderful speaker. It is a big thing. I think for people in the legal world, people who follow the Department of Justice, it's a big deal. It doesn't have the same resonance. And so I I hope you're right. But I think that there still will be the people who are afraid, who are thinking, you know what, I don't have the resources of James Comey. I can't command uh the and galvanize the media in the same way. I don't have free legal resources and that that infrastructure to fight back. And so there will be an there the concern is that even if he wins there will be enough people who are like I don't want this to happen to me. Um I'm hoping you're right and by the way I think that that James Comey is going to win. I mean all signs are that this is incredibly weak and I think the tell the thing that I'm looking for this week is whether his team asks for an immediate trial. Um to me that is going to be the clear tell if they know this is such a weak case and let me just make sure people understand why what what some of the indications are and this is not the idea that you know the career people said that's you don't bring the case the Trump appointed US attorney who had to resign he said don't bring the case but there's more than that um the grand jurors um didn't vote one of the three charges so they only could go forward on too. But even with respect to those two, the grand jury vote was 14 out of 23. Um, so there 23 grand jurors. You have to get 12 in order to go forward. They got 14. So just a, you know, a little bit over that bare majority. I want to make sure people understand what that signals going forward. In the grand jury, you doesn't have to be unanimous. Justice 12 out of 23 people. Um so that the unanimity is not there. It just has to be a bare majority. Second, um the standard, sorry to get all legal in the weeds, but the standard is probable cause. That's a really really low standard. Let's assume that's like 20%. So both the low standard and not unanimous. That's the grand jury standard. This is going to go to a trial jury. So, a criminal trial jury, there are two things that are required to get a conviction. Unanimous. It has to be unanimous. All 12 of the jurors have to agree. You can't have one say no. If you have one say no, it's out. You You do not win. Um, second, the standard is not probable cause. It's beyond a reasonable doubt. So the signal to the US attorney's office when it's 14 out of 23 on two of the charges is good luck getting a beyond a reasonable doubt verdict unanimously. I mean that's such a strong signal that this is a weak case.
>> Yeah. I mean and and people should understand again I'm not the lawyer on this but I I do now know enough to know that that in these grand juries basically only the prosecution gets to make their case. They hear no defense. So they just hear the very best version that you could get. But so, but even with that, you know, I had done something when it was started to be reported that this might happen to James Comey. I had hopped on with Ben Whittis. Um, and he wasn't sure at all that a grand jury would indict. Um, are you surprised that the grand jury indicted at all? Like that they could even get 14?
>> You know, I don't know the answer to that because you don't know what the presentation was. Um, and you know, the thing that gives me enormous pause is I'm I'm very concerned about who was in the grand jury on the prosecution side. As just to make sure people understand, there's no judge. There's no defense lawyer, as you said. Um, it's just the government presenting its case. We don't know exactly what was said to them. We don't know if they followed all the rules. We don't know if they read the charges correctly. I mean, none of that is there. We we certainly know that they're not legally required, the government isn't to present exculpatory evidence. In other words, if they have evidence contrary to what they're presenting, that they do not under the law need to do it. Now, DOJ practice is that you do it. But we don't know if Lindsay Hallan, the new, you know, Trump appointed insurance lawyer with no prosecutorial experience, we don't know if she presented any of that contrary evidence. We don't know if Jim Comey asked to testify or to have somebody else testify um and was rebuffed. He would have a right to do that. So, we just don't have a sense of that um going in. I want to make sure people do understand though that for a grand jury to reject even one of the charges and here we know they rejected uh one of the three. That is so unbelievably rare. In my experience, I was in the department for 21 years. It never happened. It just it just doesn't happen. And you know why, Sarah? It's not because the grand jurors are rubber stamps. It's because when you go to the grand jury, if you are a normal prosecutor, whether in a Republican or Democratic administration, you go in knowing that you need proof beyond a reasonable doubt to win the case at trial. You're not trying to just sail over the probable cause standard because that's not going to do you any good. because your whole point is that you want to be able to win your case and you wouldn't you wouldn't subject somebody to an indictment unless you could do that. Here it seems really clear that or I should say that all signs are they're perfectly happy to suggest to subject James Comey to the indictment even though there's substantial reason to think they're never ever going to get a criminal conviction.
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>> There are some heightened protections baked into the criminal prosecutions, right? Um, so do you have some hope that even if DOJ's prosecution of political enemies ratchets up, some of the procedural and constitutional protections will hold? cuz you're talking right now about like normal DOJ uh lawyers, but like do can we be hopeful that the normal DOJ stuff will come through?
>> Well, one thing that I think has not come through is the checks within the Department of Justice. So, as I said, the the Department of Justice guidelines that govern what you're supposed to do in the department, these are attorney general guidelines are that you cannot bring a case unless you have a reasonable expectation. This is like my paraphrasing that you can win at trial beyond a reasonable doubt. And I don't know if you only get 14 out of 23 on some of the charges you propose how you meet that standard. So that suggests to me that Pam Bondi and Todd Blanch are not subjecting uh sort of the so-called enemies to that same standard. Um, I do think that when you get to a trial jury and you get to the courts, you do still have a lot of protections, but just remember that's after you, the person is subjected to the approprium and the expense and the vilification of being charged and the humiliation of it. Um, but yes, judges can decide that this is outrageous government conduct. They may decide that this is a vindictive prosecution. uh juries can re reject the the case. A judge if requested uh in the Eastern District of Virginia, it's the so-called rocket docket. Um that so that you could end up with a judge saying, "You know what? If the defense wants an immediate trial, that's what I'm going to do. And I'm going to catch the government flatfooted. Um which in this case, I think is a you know, highly likely that that's going to be the case."
>> Yeah. Because Haligan, I mean, and maybe we said this, maybe we didn't. Sometimes we can assume people know this, but there they would they were not going to prosecute this case. Like the DOJ lawyers in there were like, "No." Um, there's no evidence. It's a it's a weak. It's like not it's just not there. So, they fired that person. This is where when Trump sent he sent a a bleet, one of his truths when and it also looked maybe like a DM to Pam Bondi. like it was unclear cuz he was addressing her directly and saying we got to go after these guys. We got to go get them. It's not happening fast enough. And also get rid of that other person and get this new person in there. And this Lindsay Hallan is just what is she? She's a a Trump lawyer, but she has no experience at all. She has loyalty, right?
>> Loyalty and and a background in insurance. I I think this may have been the first time she's ever been in the grand jury. Um, so you know, and they're very there are a lot of rules about what you can and and cannot do. And let's just compare this to um under Trump 1.0, Bill Barr had John Durham do essentially the same thing, which is sort of a targeted investigation, but at least there was an investigation um to sort of target uh James Comey and the sort of crossfire hurricane investigation. And that went on and on and on. And John Durham at least had been a career prosecutor. He knew how to do investigations. He brought two criminal cases. And he'd managed to do something remarkable. And this is somebody who at least had an investigation, had the background. In those two cases, he managed to convince 24 jurors unanimously that the defendants should be acquitted. He lost all of them. He didn't even get a mistrial. A mistrial is when the jurors are conflicted. In other words, you even if you have, you know, two jurors who say there should be a conviction and 22 that say no that taking aggregating the two trials, then you'd have a mistrial um and you could retry the case. He managed to get all 24 to agree that the person was not guilty. So you if you compare that um where he by the way had in his purview looking at James Comey and now you have this which is basically Lindsey Haligan you know what did she have a a New York minute to look at the case. She obviously couldn't have reviewed the case thoroughly. She couldn't have talked to all of the prosecutors. She couldn't have read the evidence herself. She certainly doesn't look like had any sort of defense presentation. all of the normal things that a US attorney who's responsible under just to be clear under a Republican or Democratic administration. So I want to make sure people understand this is not partisan. I worked for many Republican and Democratic administrations this is what all of them would do and this is why this is just so unheard of. Um she didn't do any of that.
Is the is the shock and outrage from the legal community proportional to the insanity with which this is happening? Um because in the discourse right now actually what you see is um uh you know the a bunch of people saying well well Donald Trump was prosecuted by the Department of Justice too and this is just politics as usual. We sort of need you sort of need like a unanimous legal community to react with outrage and defiance in the face of something like this if it is so radical because if it doesn't people who really can't parse these things end up in kind of a whataboutism loop.
>> I don't think that there is any question in the legal community that this is absolutely beyond the pale um that any normal administration Republican or Democrat would not do this. the the idea of I think it's non lawyers who say well well wait a second Donald Trump was prosecuted for uh false statements or obstruction of justice. Um and so why shouldn't Jim Comey this is where it's like I'm going to be a dog with a bone because I say this over and over again when I'm I'm on MSNBC which is facts matter. I mean this is where they're the reason they're not comparable is because the facts are different. If, just to be clear, if there were facts to prove beyond a reasonable doubt that James Comey lied to Congress and obstructed justice of obstructed Congress, I I would be going, you know what, the fact that he's a former FBI director in some ways is more reason to hold him accountable, not less any more than when a former president were to lie or to obstruct justice, he should be held to account. and the fact that he has a higher position is more reason, not less reason. So if the facts were there, I would not be outraged. I'd be sitting there going, you know what, it's important to hold people at the top accountable, not just people at the bottom. When the Mar-a-Lago classified documents case happened, one of the things that Professor Ryan Goodman at NYU and I did was we did a compilation of all of the lower level people who had been prosecuted who were in jail for doing far less than what was alleged with respect to the president to point out that this is not at all selective prosecution. this is holding him to account in ways that lots and lots of people who were in our view either equally or less culpable had been held to account. So I I think the answer to the oh isn't this just what happens normally and isn't this tit for tat? This is not what happens normally. It is not what happens at the department of justice. It is not the case when I was in a democratic or republican administration that anybody at the department would ever suggest you go after somebody because of politics. And just to be clear, I want to make sure like I worked on Enron under that was under a Republican administration and that was the we there was not an ounce of political interference. It was run exactly the way it would have been run under any responsible administration. Um and then the answer to sort of isn't this tit for tat? This is not um uh sort of tit for tat when the facts are different. So again, we will see what ultimately the government is able to prove, but as we talked have sort of said over and over again, so far based on everything we know, the facts are so um sort of clearly indicating that this is not a case where there will be a conviction.
>> on this sort of cuz I I am uh in my universe of people, I have an awful lot of conservatives that I'm seeing say things like, well, you know, when you talk about the Mar-a-Lago case that was sort of different from the Stormy Daniels case. Um, and different from, you know, there was a lot of different things Trump was prosecuted for. Are there any of those in retrospect that you think I wish they hadn't brought those? Those were not the ones like that did feel like that is giving them this cudgel right now. Um, because I was always a little bit like the Stormy Daniels one that Alvin Bragg brought, you know, where it was a what was it? A novel legal theory. I said like it was always a shame to me that that was the one that really went forward where just about everything else was slowed down. Like do you in in retrospect do you have any thoughts on that?
>> I do. Um look there's no question that the most serious case was the insurrection case and that should have been brought and it should have gone to trial. Um also as somebody who was in the intelligence community I actually think the Mar-a-Lago case it was I mean the president was begging for it. I mean, he was given a million opportunities to not have that charge. And that's one where as somebody who believes that in the rule of law, meaning that you treat people equally, the idea that a former president could get away with that when we were prosecuting low-level people and that the message is that we don't take our classified documents seriously, I mean, that to me became an an absolute necessity. If there was a conviction, I think there was substantial reason that I don't think the sentence should be particularly severe if you look at all the other sentences. But I thought those two cases were righteous and had to be brought um for for independent and and different reasons. Um, I agree with you that the obviously the least serious was Manhattan. And um I always think about this in a sort of what I'll call it's not quite a legal selective prosecution because it's not really the total legal definition of selective prosecution but um you think about would this have been brought uh but for the name of the person. Not that not that the person isn't like the person could be guilty of it but would that really be what you would normally do? Now, sometimes there's an answer to that, which is that somebody should be held to account. They're in a different situation. Um, that that it's important to send that message a little bit like just before April 15th, that there usually are sort of the tax division brings cases to sort of deter people and sometimes they pick cases are particularly, you know, that are going to get more attention because they want to have a deterrent value. Um, but you know, when you think about show trials in other countries, it's not that the evidence is always made up. It's that you're getting them for something that's like a speeding ticket, which lots and lots of other people do, and you've sort of selected it out in order to to do that. I mean, we're seeing something that appears to in some ways look like that when you look at all the sort of claims of um mortgage fraud because someone says it's their uh not their primary residence. And there there are lots of nuances and factual issues, but it reminds me of when people had nanny problems where they weren't paying taxes. You know, that can be a form of selective prosecution. And so, look, I think Manhattan had that issue, but the answer isn't because of Manhattan, you're going to indict uh Jim Comey in a bogus case. I mean, this is I mean, not to, you know, put it into child terms, but it's like two wrongs don't make a right.
>> Yeah, that's No, it's okay. Yeah, I think I do think we need actually to put some of these in in more um straightforward human terms because um I am watching an entire uh right-wing not even not exactly legal community but uh legal community adjacent twist themselves in knots to uh make the the case that that this is tit for tat. This is what it looks like, you know, when you go after I just I'm just a wash in this argument and so I wanted to have you unpack why it's wrong. Um cuz you did it much better than I do. Which me I just become like what are you talking about?
>> Frothing.
>> What?
>> Yes.
>> Yeah. Which one? Cuz one of them was guilty.
>> Well, that's a good way of putting it.
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What What do you have any thoughts? This is this isn't wasn't in the initial show, but now that I'm in my head, like some of sort of the national review types are saying, you know, I saw Andy McCarthy did this said, "No, this is wrong." Like this is um and and people do it with sort of an an enormous amount of throat clearing or whatever, but they they do seem to know it's wrong. Is there will the conservative legal community do anything to push back? Will that matter to Trump in this DOJ that they are even by people who are purportedly on their side who love to make excuses for them or are saying, "Yeah, you guys can't do this. This is not cool."
>> I would hope it would, but let me just give you the counterpoint. Um, and I'm going to go back to Abrego Garcia, uh, you know, who is the, uh, person who was extracted from this country in violation of a court order and then left to languish in a prison, uh, after he was extracted from this country. Judge Wilkinson in the fourth circuit who is a I always try and sort of make sure people understand who he is for conservatives. Think of sort of like a Ruth Bader Ginsburg type. Um he for the for the left he is revered. He is like Judge Ludig and he is somebody who um the right legal community um holds up as being a serious jurist. He wrote the most heartfelt sort of credur sort of this that is it was this is wrong. Um and he said by the way when you've been done something wrong you make it right. I couldn't imagine. I kept on thinking about it in terms of could you imagine going into your boss, whether it's Larry Thompson, a Republican, or uh Robert Mueller, a Republican, or um Merrick Garland, a Democrat, and going in and saying, "We have removed somebody, it turns out, by mistake, illegally, and they are now sitting in a prison in El Salvador." And their first human reaction would not be how like essentially what are you doing to get him back? Like how are you remedying this? And in spite of Judge Wilson writing about that, saying this is wrong. You have violated the law. You have fired somebody for being candid with the court about what happened. um you are jeopardizing the relationship of the judiciary and the executive and that and creating a friction that is going to be perilous for the entire country and both institutions and it's not too late to pull back. Do you know what happened the next day? The next day the White House tweeted out a cartoon um drawing. They took the New York Times cover about the Brigo Garcia ruling and they wrote on it essentially he's never coming back. Um just making fun of it. Like none of that resonated. None of that caused a moment of self-doubt of of um having concerns. It human concerns about the person. Um, and I just do need to say that I I I am always very skeptical if Mr. Abrego Garcia was a rich white person whether the same tack would have been taken that there was a part of me that just kept on thinking, you know, because you're extracting sort of people from primarily from the black and brown community, they're somehow lesser humans. Um, and it's okay to let them rot and they won't have the political resonance for the American public to to vote and care as much.
>> I think that's true. I also think that Trump, you know, when you think about the political project of othering immigrants, um, you know, there is obviously we could talk about the judicial inequities between, you know, race race and um, socioeconomic status, but I think in in that case, it's actually more that Trump has really over the last decade moved a significant number of Americans hearts toward a hardening against people who are in this country. Uh whether whether even if they have protected status like Andre um the gay hairdresser who was sent to rot in Scott totally wrongly um like Albero Garcia wasn't the only person that was completely innocent that they that they shipped off. I just I think that Americans uh I actually think the dividing line here is people see people who are like natural natural American citizens versus people who are immigrants and there that Trump has really hardened the hearts against immigrants uh in this country. Like I I don't know. I now we're debating something that's probably I don't know that there's an answer to but but I guess that's how I would look at that.
>> Yeah, absolutely. Um, so you know, I don't know. I mean, this we started on this because you said, you know, do I think that there's if the conservative legal community were to sort of voice strong opposition, would that have an effect? And, you know, I gave this example. Yeah. My point is is that we've been there and that we've had some of the most leading lights in the conservative community say that. But I my I guess my my only last thought on this is just when you talk about this and you say like I can't tell you how unusual this is. Like it sounds to me like this should shock the conscience in a bipartisan way of all the professionals in this community. And so I guess why isn't there a backlash of some kind?
>> Let's I think there will be and this is where the one thing that is I mean there are some various positives. So the backlash to the Jimmy Jimmy Jimmy Kimmel, I think that blew up. I think people sort of saw this is an attack on all of our First Amendment rights. They understood the the idea you don't have to like Jimmy Kimmel. You don't have to like what he's saying. He has a right to say it and you shouldn't be taken off the air for it, etc. Um Jim's Jim Comey is a wonderful wonderful public speaker. He is very charismatic in the same way that Donald Trump in some ways was given a a megaphone and a spotlight when he was being criminally investigated and then being prosecuted. Um a megaphone has been handed to somebody who is a very very cogent smart speaker. Um and he is going to have a forum and people are going to be listening to him. uh and that could include not just sort of legal motions but hearings uh that could include discovery. I mean this is the kind of thing where there could be that kind of backlash and I I really don't think that there's going to be conviction here. Again remains to be seen if there they can pull a rabbit out of the hat. But again, all of that can lead to a sort of very spectacular way in which like Jimmy Kimmel, there is another example of the Americans being able to look at this going this is this is the weaponization of the Department of Justice. Stop saying, "Oh, we both, you know, only Biden weaponized. I mean, this is where facts matter and you will see this explode."
the Biden DOJ that prosecuted Hunter Biden >> and and a sitting US Senator Menendez in New Jersey. I mean, so yeah, I mean, you could go on and on and on.
>> Can we just contrast for one this this has been on my mind like the the Menendez case and maybe you'll tell me that that the facts are so different, but like Homan just taking a bag of cash and Mendez doing it. Isn't that the gold bars? Like isn't that basically the same thing?
>> Um, so there is a big difference. Um, Homan's was not yet a public official but he was the allegation is he took a bag of cash with $50,000 in it which by the way is not how you usually get paid. I mean usually people have checks or Venmo or PayPal. So like it's already incredibly suspicious. Um, also by the way, if you were innocent, Sarah, and somebody said, "Oh, there's a transaction and the FBI did it and it's on tape and your position is that didn't happen." You would be the first person to say, "Release the tape. I want the entire world to see that this didn't happen." You know who's not saying that?
>> James Homan.
>> Exactly. Um, so the point is, it's not quite the same because Homan's would have to um, basically you'd want to wait to see did he was he going to carry through with this once he became a public official. I mean the signs are assuming the allegations are true is that he would have. So you would just wait for that. Um, because Senator Mendez was a senator at the time you didn't have to wait for that. Um, so that's with that difference, you would of course any any prosecutorial office, Republican or Democrat, in normal times would keep that investigation open and see how it played out.
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You were the FBI's lawyer. Like what? What? They just they just summarily dismissed it. What what's happening there?
>> Well, so that would have been a DOJ call like within less than an FBI call. The FBI could have significant influence on that. Um when there's a disagreement between the FBI and the prosecutors, but ultimately it's a prosecutorial call. But the reporting is that Amove uh and other people looked at this and said, "Oh, we're shutting it down." that that just makes no sense to me whatsoever. And I think it's so great that you're bringing it up because you have sort of weaponization as to your enemies, but you know, for your friends, nothing. Um, and you see that sort of in not bringing cases and giving pardons, but then also bringing cases where even if your own people are saying no, you just remove those people until you can find a lackey who says yes.
>> Which again, I'm just going to make a distinction. And it was I I was going to go back to this. Uh the difference between Kimmel is that Kimmel is a famous comedian and average Americans got up in arms. Like you know boomers who are just never going to cut that cord. They're with the late night shows till the bitter end. Uh good on you. But like everybody, you know, I'm sure I people are cutting their Disney Plus subscriptions. Like they felt a public backlash. I I'm talking about the professional legal community. Like what I guess what I can't understand is why professionals and cuz you keep coming back to this like how abnormal it is how professionals would never and I know voters they don't understand those types of things like that really is the part where those are processes that they're not privy to those are invisible lines that they can't see um but they and so they'll fall for somebody being like well these two things are exactly the same and you've got to spend all this time giving your professional reasons unpacking why they're not the same. Um, but the people who can see the lines, who do understand the professional obligations, I just I know that, you know, James Comey's son-in-law, he resigned, but like should there be mass resignations at this point? Should there be people speaking out publicly? That's what I mean is that for the professional side.
>> And then by the way, I famously have a question for you since since I've heard that um uh which is by the way in keeping with this the exact thing we're talking about. Um because I've heard that that George doesn't ask a lot of questions. Um so I I'm I I think it's people need to know you actually don't just ask questions. But okay, let me answer. Um yes, of course the people should be speaking out more. I think the issue of resignation is a harder one. Um I think that if you are at the Department of Justice and you are not being asked to do something that you think is illegal or or immoral, it is a complicated question because you know one you can have a family, you can have a life, you you know there's enormous consequences. It's not a great job market right now for a lot of reasons including the attack on law firms by uh the president and you could decide you don't want to free up space for somebody. So there there just a lot of reasons to stay there. Obviously if you yourself are being asked to do something you know it's not indentured servitude. You have every right to say no. You may get fired for that. Um but you know that's to me that's sort of a very different situation. If you especially if you think some it's illegal, you obviously can't go along with it. Um period the end. And if you think for instance it allies DOJ policy or you think that um this that this is selective prosecution or that there's not insufficient evidence uh to bring a case against James Comey or anyone, you have to resign if you are being told that you have to do it. Um that's sort of that's sort of a no-brainer. I mean you there's you know otherwise you are actually complicit. Um so I think that's complicated. So I wanted to ask you about sort of this issue of when you say you're hearing from people um and they're sort of like tit for tat etc. Here's an example. I'd want to know what are people who are outraged on the right who are completely outraged when Bill Clinton on a tarmac has a happenstance meeting with Loretta Lynch even though Secret Service is there, even though her husband is there. Now, there was an open investigation um of Hillary Clinton at the time, but just that meeting alone, there was no no one said anything. There was no agreement. There was no uh decision ma that was allegedly made. Then there was just the meeting and the you know and and to be fair the appearance of impropriy but nothing about actual impropriy. How do you square the outrage over that and the, you know, the blood in the water media frenzy over that with actual presidential ordering of of a charge? Um, which your own people are saying there's insufficient evidence of.
>> I mean, this is why I'm asking you why there's not hair on fire. like because here's what the right knows how to do that I feel like I'm not even going to say the left. I'm just going to say sort of the pro-democracy coalition, that big broad pro-democracy coalition that's not sort of dug in on on you know covering for Trump. Like they they're like I'm not a huge sports person, but you know how when soccer players do the fake big flop, you know, they get like kind of lightly touched, but they fall over and you know cuz they're trying to get the refs to blow the whistle. The right knows how to play the refs and do the big flops and say this is outrageous. Do you think the average American understands the significance of Bill Clinton on the tarmac? No. What they understand is when they turn on Fox News, there's, you know, guy men and women in suits who have, you know, law for, you know, did this kind of legal work under there who are freaking out about how bad it is and uh and talking in in in these extreme terms. And then there's an enormous media ecosystem there to sort of fan the flames of that outreach. And also also I will tell you that one of the most significant um forces on our politics right now is the asymmetry between uh levels
of corruption. So Americans believe that there is corruption on both sides. However, part of what happens is they take something like Hunter Biden's laptop and they make a 12-course meal out of that scandal, right? And it doesn't matter that Hunter Biden is not the president, right? It is all about the Biden crime family. There's a narrative, but there's, you know, they dig in on the the laptop and the this and the that of it all. They did that with Benghazi, right? They know how to make a meal out of a single uh thing that feels scandalous versus Donald Trump where if you and I do a podcast every week, the topic of corruption will be different. Now, corruption will be the through line, but we will have to like this is where I will sort of never let go of my frustration with the way that the cases were brought against Trump because it was like all of a sudden there were so many that Americans actually were like, I don't know, I maybe there's a prostitute in there somewhere, you know, like they they couldn't keep them straight. It was like white noise. And so try and then you know, so all the legal scholars are on TV and you're trying to like parse them apart. Well, that's not enough for people to get uh, you know, their minds around and so that is just a very different way of doing sort of the narrative work and I think that's having a big impact.
>> Yeah. So I think that is one of the things that Donald Trump uh is maybe because of his media training or maybe just instinct or whatever whatever for whatever reason is very good about being a dog with a bone. Um, and so, you know, when there's bad news, like the Jimmy Kimmel thing was obviously a gigantic misstep, right? It it blew up, um, you you even have, uh, sort of Sinclair um, you know, you backing out and saying, "Yes, we're going to now put him back on the air." So, um, that's one where, uh, you know, I I see that if you were on the left, you'd be like, "Every day should be Jimmy Kimmel day, right?" And and it everything should be about Jimmy Kimmel. And even when somebody's going, "Look at the birdie. Look at the birdie over here." You're like, "Uh, this, by the way, this is what you do when you're a prosecutor and defense lawyers. I mean, I've been both. The defense lawyer wants to sort of change the subject and divert the attention of the jury and your job is to go, I'm sorry, we were talking about Jimmy Kimmel. Um, or we were talking about Epstein.
>> We were talking about Epstein. Yeah.
>> Exactly.
>> Yeah. No, I think that the the flood the zone ability to keep people hopping from and trying to make sense of different scandals. Um, and I do think that this is uh I I my frustration with the I just think the communications capabilities have not caught and and instincts um on the people who are trying to oppose Trump uh even after all this time of him doing the flood the zone thing like it is a people understand that it's the strategy. Um, but it is hard when as you say like every week you've got a new thing like James Comey it is an enormous new Rubicon being crossed. It's like we've got to go on to it and yet that means we're not talking about Epstein. U it means we're not talking about the plane from Qatar where there the you know like I mean there's just so many things.
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>> Yeah. And I mean, look, the problem is you really what the answer isn't, oh, you can't cover James Comey. That's the problem. Um, so that um but it but I do think a lot of times uh what you do have to wipe out is the noise about we're going to take over Greenland or just covering his invective um where there are no new facts. It's you to me that is where you know this is the problem of the Trump understanding the news wants something new and so that's what's going to happen but you know for politicians they can stay on message um but anyway this is way beyond this is way beyond my literally the only experience I have on this is when I think about a courtroom where you know what you what you do as a prosecutor is you want to make sure that you're keeping the jury focused on the issue and not letting distractions um sort of muddy the waters. That's like that is a key part of your job.
Yeah. And now that we are so we're we're almost an hour deep and I had like three other topics that we haven't even gotten to. Uh, you know, we've got these US attorneys that are being fired. Uh, which uh I I don't in our in our short time left. We've also got this here's here's actually maybe the one I'd like to ask you about. That to me is um as as we close I've been interested in. So Trump issued a memorandum this week the subject of which was countering domestic terrorism and organized political violence. So it says campaigns of domestic terrorism and political violence often begin by isolating and dehumanizing specific targets to justify murder or other violent actions against them. They do so through a variety of fora including anonymous chat forums, in-person meetings, social media and even educational institutions. And it goes on to say, "The Attorney General shall issue specific guidance that ensures domestic terrorism priorities include politically motivated terrorist acts such as organized doxing campaigns, swatting, rioting, looting, trespass, assault, destruction of property, threats of violence, and civil disorder." So obviously, I'm not a lawyer, but I wouldn't think things like doxing and trespass traditionally have been construed as terrorism. And it seems like Trump is casting a really wide net here to justify investigating people who disagree with him. Because the Comey thing is like a specific instance of a broader thing that is happening which is that they want to prosecute their political enemies broadly.
>> Yes. And that's why you're seeing um also talk about investigating George Soros and other people who give money to Democrats. I mean that is this is so transparent. Um, that that is you know again if there by the way if there's some actual factual predication for it great but that's not what it says. This is just like I'd like to look at people are giving money to Democrats. I mean that's sort of that's not a crime. Um, and you know, when I was listening to uh Sarah and you were describing what this is, um, this sort of new executive order, I was thinking, "Oh, so I guess he's going to look at the Proud Boys and the Oathkeepers." Um, and that was very much like his executive order about Antifa. Not entirely, but if you looked at the language of that, you were like, "Oh, so I guess he's really interested in people who attacked our democratic system and wanted and did so violently and were trying to prevent the transfer of power." I mean, he made Antifa sound like that, but I was think, you know what? You know who else has been doing that? People you pardoned.
>> Yes.
>> Um, and so it is so transparent that that is what's going on. And this is where I have to say it in all traces to and this is to be an egghead. The Supreme Court of the United States is an authoritarian um institution in terms of what they have let loose in terms of the the immunity decision and they have a view of the executive which is not the unitary executive. It is a view that is being at least um changed into the unitary government um where there's very little congressional power and very little uh judicial power and so they're creating this authoritarian regime and with they they have so much to blame for that kind of licensing of what you're seeing that that a president thinks they have that power to do that. And remember the the reason is because in the Trump immunity decision they said how the president deals with his Department of Justice it makes it he's entirely immune. Um, the the specific wording was that even when the president is telling his attorney general to engage in a fraud um in connection with the Georgia election that that is immune from prosecution. So when you read that, what do you think the message is to a president of the United States in terms of somebody who is thinking about what how far can they go? They're thinking this is a Supreme Court that's not going to pose any sort of check on on things that are truly outrageous.
Well then, um, as just to ask a very easy simple question to close, I want to I want to something that we wrestle with at The Bulwark uh and talk about a lot and have been turning over is like the amount of damage that's being done and we're still in the first year of this term. Then thinking about where we're going to go from here, like can you unwind this stuff? Like let's just say hypothetically we have free and fair elections in '26 and in '28 uh, you know, President Pete Buttigieg uh is there. Can you these institutions that are are being perverted in these ways and like and the Supreme Court, it's like, is America, can can we not not go back but can we restore these things or are they gone forever after this?
>> Yes. That's a nice that's a very simple question.
>> It's just yes or no.
>> So um um thank you Senator for asking that question. Um, so uh here's how I would answer that in a somewhat positive way. We will I hope we're in that situation where we we have that problem uh which is how do we deal with sort of new norms, new rules um uh I there's no question we will not be the same anymore that that that even if Trump is is gone um and there will be mini-mes running around and people who want to emulate that whether they'll be able to or not you know remains to be seen. We there that transgression has happened and so we will always have to worry about that. Here's the I I do think that you can get back to some some not the same place but some normalcy and here's like a a sort of analogy. We went through a pandemic when you think about just how people are resilient and resourceful and that was an incredibly painful time with nothing that could prepare any of us for what was what happened and everyone sort of bounced back. Um, and um, and I just think people are resilient. They were even resilient during COVID in terms of trying to figure out how to make things work. Um, and you know, I think the Department of Justice just to, you know, focus on the institution I, you know, my myopic sort of thing I care about, you know what, whether it's a a normal Republican or normal Democratic administration, judges and that institution can get back to normal, at least while that person, you know, when that administration is in place. So, I I think that we can. Um, I just think given what's happened in the last year, I think the midterms are kind of everything.
>> Okay. Well, I like to end on that note of hope. Um, I am often the only one saying that no, I think we can do it. So, it's nice to hear somebody else say, especially somebody as smart as you, Andrew. Thanks so much for coming on and once again talking about the legal news with me. Uh, don't forget to hit subscribe, leave us a review, guys, and we will see you next week. Well, George Conway, he's a man with a plan. Got to sit down with Sarah Longwell, take a stand, explain all the legal problems. They're piling high with Donald Trump. Oh my. Oh my. Oh my. He said, "Sarah, let me break it down for you. There's obstruction, justice, corruption to the legal tangles, and troubles. They're growing fast. It's a storm that's going to last and last." Oh, Conway. Tell them well about it. Those legal problems can't live without it. From the moonless to the Russian ties. [Music] Oh, Sarah, listen close.