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Preet Bharara Interviewed by Jeff Berman | Upfront Summit 2020

Preet Bharara
United States Attorney at United States Attorney, Southern District of New York
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Upfront Summit 2020
January 30 2020, Pasadena, CA, United States
Upfront Summit 2020
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Preet Bharara Interviewed by Jeff Berman | Upfront Summit 2020
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About speakers

  • Preet Bharara
    United States Attorney at United States Attorney, Southern District of New York
  • Jeff Berman
    Co-Founder at Magnet Companies
Former civil rights lawyer and Senate staffer.
Current entrepreneur, advocate, and activist.

About the talk

Topic: Business

Preet Bharara (Former U.S. Attorney for the Southern District of New York, Host of the Stay Tuned with Preet podcast) talks with Jeff Berman (Magnet Companies) about the dynamics of impeachment, John Bolton's options, the state of the Justice Department and why it's hard to have conversations across the aisle in Washington.

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We're very lucky to have preet bharara with us today when I am confused and I am scared I turn to you because you are smart and you are 00:00 sober New Flame things way that I understand and I'm also scared shit. 00:10 Where are we? I don't 00:15 freaking know so I spent a lot of my time since I was fired by the president I'd say it's a fact about which I'm very proud. 00:25 Watching the future proceedings thinking about the impeachment proceedings. Wondering what's going to happen next and I guess we can have another day 00:39

of softball questions at Eastside asks, if its own people and in about a minute, I was optimistic a couple days ago and you will both of us have done 00:45 trial work for parts of our career and I've never heard of a trial that doesn't have witnesses and doesn't have documents the powerful message and 00:55 also makes logic logic and common sense. Then you have John Bolton who has this book and is put he's not here today, 01:02 and he could have said all these things. And in the privilege would have been waived and end with no 01:10

more stop and then he testified. So I was one of the missing a couple of days ago that they given how bizarre it is not to have witnesses generally 01:20 and then you have a top advisor the president of states the former National Security advisor who says he's prepared to testify if subpoenaed has not 01:28 only relevant information, but but direct first-hand information that undermines the central thesis of the defense of the president knighted states, 01:37 how on Earth do not have him testify and yet I don't think that he will you worked on Capitol Hill you were Chuck Schumer Street Council 01:44

for years. I took over your job you did I hire well apparently and when you were there, you're not only known as the to borrow. 01:53 Jon Lovitz line is straight shooter respect on both sides, but you were able to work with Republicans who were sober and thoughtful and obviously 02:03 weren't sleep a second work with a drunk ones. Also. Are they still there? Why don't we have a real discussion about this 02:11 and have Republicans who is worldwide matters rule of law is tribal power and that was already 02:21

the cat. I mean, I remember you're talking about the judicial nomination Awards back when you were to cancel on that committee and then it got you no 02:31 more polarized when I was there and since we both been gone, I think it's gotten worse and worse and I think it gets even worse than all of that. When 02:39 you have a president knighted states who makes it very clear that principle is a matter for anything truth doesn't matter for anything. The only thing 02:47 that matters is that you're on his side or not on his side and I do think that there are people in the Senate and in the house where people are good 02:55

conscience. But they they are intimidated by the president knighted states are intimidated by the possibility of a primary challenge. They're 03:02 intimidated by the possibility of being called out by the president in a tweet. They're intimidated by the hordes of supporters of the president who 03:10 will call them out. And so I think they don't do what they think it will Jeff Flake who could speak his mind more than others because he was leaving 03:17 now he has in fact left said I think he's probably not wrong about that. If you can have a secret vote in the Senate secret ballot there be 30 35 03:26

votes in favor of impeaching and removing the president of the United States. Because how can they prefer this person to Mike Pence if you're 03:35 Republican and yet there's an intimidation Factor until I think that that's trickles down to the to the staffs and Lindsey Graham. You remember this 03:43 this might surprise some people Lindsey Graham was you know, one of the senior members in the judicial committee both when Jeff and Jeff and I both 03:51 work there successively. I found him to be a reasonable person and a good guy funny and funny and good trial lawyer 03:57

and he hung out in that McCain orbit. There was some Halo there wouldn't you agree with everything in the game stood for and he's not anything like 04:05 that person and then I guess there's two theories one of which you know, it's what I have to say about them. I don't 04:14 think that's the case. He's from South Carolina and his ratings. His poll ratings have gone up and Norma sleep substantially since he's been basically 04:24 an uncritical support of the president. That's what I think is probably what's going on. Let's let's just go really like rat packs on what's going to 04:34

happen in the next couple of days it it seems there are three boats on the Republican side for Witnesses. He would seem that way Romney murkowski 04:43 Collins Collins. So let's just say that there were three but not for 50/50 Roberts break a tie. 04:52 So my understanding is the given understanding is it normal? When is a 50-50 tie a vice president breaks the tie that would not be the case here if 05:02 you Roberts my sense is that Robert will let it stand. He has not shown himself to be in a position to be aggressive or take any kind of not even 05:11

Central role. But even peripheral role other than reading the questions that are asked by senators and written on a piece of paper and I don't know if 05:20 he wants to break. I think the worst thing in the world for him the prince I feel most bad for in some ways other than all of America on 05:28 Roberts who cannot be happy sitting up there and he I think price himself. I'm not getting into politics and wanting to preserve, you know, 05:38 institutional integrity. And so I don't think he wants to put a thumb on the scale one way or the other so my guess is My guess is he will simply 05:48

abstain when you think I don't know. I made a 05:57 motion straight to Robert's to call witnesses bypass the Senate call them you think Roberts refuses to rule on that as well. 06:07 I don't know if it would if a posture would be such that that that would happen to the McConnell couldn't figure out a way to put it directly to the 06:17 Senate. I mean one of the questions one more interesting questions that was asked yesterday by Senator. I'm in the point was made by A German chef 06:24

of the intelligence committee what he's been doing an amazing amazing job is we're prepared to let the guy sitting behind me referring to Chief 06:34 Justice Roberts. We're prepared to let the guy sitting behind me rule on these questions of relevance and admissibility of evidence and Witnesses 06:42 coming to testify in all that will abide by whatever he chooses. So we don't have to litigate in this way. And the reason he's saying that is because 06:49 one of the arguments that the White House is making two senators is vote against Witnesses other Weiser going to be a long protracted legal battle in 06:55

the Court's going months and possibly coming into the eve of the election in November and God you don't want that. But I don't know that McConnell is 07:04 going to permit that kind of direct request to Robert's. I don't know if it allow that to happen and unlike seemingly unlikely event that we get there 07:13 and the President Polk's executive privilege setting aside all the craziness about, you know, it's not true but it's classified. What have you could 07:22 Robert's Rule from the chair on that to that have to go to the courts or could Roberts just make them make a rule. I guess you could but again going 07:32

back to what I was saying earlier. I don't think he wants to be a couple reasons one that he may not see it as his role in the rehnquist when he 07:38 presided over the Clinton impeachment trial didn't do much in that way. And then the other reason is even if you made a ruling the Senate the Senate 07:44 procedures allow for him to be overruled and that's a turbo look for the Chief Justice of the United States. Text so I want to come back in a minute 07:52 to dershowitz his argument yesterday and implications but you reference Bolton and how nice it would be if he were here on stage today. He could be 08:01

he could be in CNN Studios with you and Anderson Cooper tonight. He could be on your podcast tomorrow if that's what he wanted to do white. Why not do 08:11 that at this point? It looks like this why not come forward. Maybe maybe he's thinking about that cuz he's an odd figure aside from the mustache. he 08:21 he leaves he gets fired. I'm in the company of John Bolton also, and he clearly doesn't want to come testify he resists 08:33 the request from the house and it gets a book deal then randomly at the beginning of the year to go January 16th announces it considered it and there 08:43

was a court ruling that may be affected his decision-making also with aspect of his Deputy. I'm prepared to testify I think that someone's going on 08:52 for him is how is it going to look for him? If for the first time people hear all this crazy? Narrative 09:01 about what the president said about the drug deal and everything else in a book on what she's making probably a lot of money. It actually makes him 09:11 look like a bad American and I think the criticism of him is probably gotten him a little bit and he realizes that he should get some of that story 09:18

out through some form of, he looks like for the first time he didn't look like this in the fall looks like you really wants to come testify and 09:25 depending on how the battle over his book work without. I wouldn't put it out of the question that he will go and do some one-on-one interview with a 09:32 favorable interviewer, which you would be if you were to do I would be a very favorable interviewer much like yourself and get 09:39 it out and look at this very little to stop him from doing that. I mean the ball, I'm not sure who's who's caught the ball was in with respect to his 09:49

book. We have the book. All the stuff is in the book lot of people have seen the book. There's an argument depending on who is seen the book and what 09:58 did the present wants to do about it that there has been a waiver of executive privilege. But they have said even though they're only supposed to 10:04 review for classification and jumbo and super smart guy and should know what's classified and what's not classified and I find it hard to believe that 10:12 he has publisher submitted a manuscript that is what the presidents lawyers now say is full of classified information for a lot of reasons. It sounds 10:20

like they're trying to prevent the publication of the book in a way that they have pretty much full authority to do so, I think their effing with him 10:29 this morning, so I use the whole word. Any any put Baldwin in a bind because they're not saying you can't publish the book in total. They're 10:37 not saying that their portions of the book that I have executive privilege. We should talk about that. They're saying that publishing this book 10:47 violates law and her sources and methods because it's classified material there and the government is the Arbiter most courts would say of what is 10:54

classified. What's not the reason you know, that's probably the best is that manuscript has been sitting around my understandings unsecured and some 11:03 National Security Council Stafford's office. It may be the case that is sitting in all sorts of other unsecured servers. They have not taken efforts 11:10 to go get the money. They didn't want him call me had those couple of memos. They went to the professor's office and took the documents back. They 11:18 have not seem like they're taking seriously a sensitive classified information leaking threat, but they're saying it now and it has all the Hallmarks 11:24

of being a political move what then happens if Bolton says well, you're laughing with me laugh with you on publishing. My book gets out. What you 11:33 going to do that's happened before and it looks like people who have been in intelligence committee want to write their book and it said it's supposed 11:41 to be a 30-day career-oriented process with a dislike of classified information and try to school with somebody just because they've been a Critic of 11:49 the administration. I wrote a book which I can plug your cold doing this word book. I submitted for publication. There's nothing classified in it, but 11:57

I had some concern and I'm not John Bolton, but I'm a Critic of the administration of the justice department and in my case 27 days later. I didn't 12:06 get the letter to John Bolton got I got a letter saying, you know, thank you. There's nothing classified in here. Good luck with your book. That's how 12:13 it's supposed to work. Depending on the cojones of the publisher and John Bolton, they could rush out and publish it and they can have a fight 12:18 afterwards. I think it's very difficult for the administration to do to do the pre-publication blocking of the book, but 12:26

it's kind of a game of chicken at this point. So it's kind of crazy and we can only go down so many of them but let's say no Witnesses a 12:36 quick acquittal in the Senate on it effectively a party-line vote. The book comes out Bolton speaks and it is as bad as any of us can imagine right 12:46 y'all be at the bottom finally now and Kelly goes. Yep, that that'll happen when I was there and it validated up and down the chain. 12:55 Do they teach me get reopened? Is that even possible 13:04

case 13:07 that a trial without Witnesses generally in a trial. John Bolton specifically is absurd and a sham and it's not only the case that 13:17 they make that argument in the trial happens. If it was it was a chef and then people forget and go about their business know in 6 weeks. John Bolton 13:27 will be going on a book on every television channel on cable news channel in the country talking about 13:35 all this stuff at the Senators could have heard for themselves and couldn't cross-examine him on and explored and then maybe it'll be other 13:45

Revelations and it just makes the people who voted, you know, this from politics and makes every senator who voted against the specific vote against 13:52 hearing testimony at a senate trial from John Bolton. Presidents lawyers kept yelling about no first-hand witness. No first-hand witness and then he's 14:00 on a book tour talking about his first-hand knowledge. I think is very problematic for certain Senators politically in November. I don't know that we 14:08 open and look at this another the nightmare scenario about how Trump has made everything terrible is the Mueller investigation happens lots 14:16

of bad stuff. He gets away with it for various reasons. This thing happens. We have an impeach. We have a trial he gets away with it my fear for the 14:26 country and for democracy and all other things good and holy is that you could see some other thing emerging with new information 14:35 in July not even further to this. That's fully impeachable. I think the president is kind of politically and immune 14:45 from a second impeachment. Right? So I think it was important to do with the Democrats. It was important to have a trial but in some ways I'm going to 14:55

sound so Grim the back of the president keeps escaping accountability from these things allows him to do worse things in the future for which you 15:04 probably will not be held accountable the solution to the solution, which is one that he be defeated in November. one of the arguments that 15:13 how to place was not nearly Hardy enough 15:26 one of the arguments with the presidents lawyers in Defenders made is that there's no crime committed no crime 15:38 without you having to go back and read Hamilton help us understand that. Lots of people in this debate 15:47

and in over the law generally they have good arguments and bad arguments. That's one way to divide and they also have superficially nice sounding 15:56 arguments that are not necessarily good argument argument. If you don't think the president remove him and the Constitution says High crimes and 16:04 misdemeanors, it should be a crime. It's little bit harder sometimes to make the right argument, but the right argument is the opposite of what 16:12 they're saying for a number of reasons first. We didn't have a criminal code at the time the founders wrote that the founders also talked about abuse 16:19

of power. It was not necessarily Criminal. But I want to focus on everything about a lot lately is. The reason why 16:26 the people should have the power to remove a president based on abuse-of-power specifically even without making out the technical elements of a 16:35 particular crime that you or I might be charged for our because a president is special. We like to say no one's about the lobby know what the present 16:45 is a little bit of Buffalo. We learn that after the Mueller investigation because there's guidance in the Department of Justice that we all know many 16:53

of those bemoan that you cannot indict a sitting president night States. So he's special he has special powers and there's things that only the 17:00 president can only the president can negotiate in a bilateral away with it with another country. Only the president can order a nuclear strike only 17:07 the president can declassify certain information on his own without going through any process and the fact that the president has only special power 17:14 but unique power is the thing that makes abuse of power up a viable an important impact Central basis for impeachment. I'll give you a couple 17:21

of examples Alan dershowitz comes on. The floor of the Senate nieces must be a crime must be a crime and always got you must be friend. I've never 17:31 heard anyone respond to a couple of simple hypotheticals now imagine the president knighted states. Decides and his unique power cuz the original 17:38 Power of classification and declassification. He decides to declassify the names of our spies abroad declassify the locations of our nuclear 17:45 submarines, make some public declassify in the worst case scenario the nuclear code all sorts of information so quickly damaging to the National 17:53

Security this country. Guess what not one of those things as a crime. You can charge the president during his time in office or after his time in 18:02 office because he has sole Authority because he has special unique power and authority in this country and the idea that you couldn't remove a 18:09 president knighted states are abusive Power article of impeachment for doing those things. I just described is preposterous. So Yesterday Alan 18:17 dershowitz made the argument on the floor of the Senate that the president actually could do any of that not just because it's not technically a crime 18:27

but because his re-election is by definition in the public interest and therefore it is not a crime or misdemeanor the high crime areas cleaner it is 18:36 it is legit next size of Presidential Power. I know that he's kind of want that back a little bit this morning but this this extension of 18:44 of presidential absolute power that is affecting me being argued is chilling to me in particular with an election coming up and see about what could 18:54 be done to to engineer a re-election. How do we how do we interpret that as being nonsense a central feature of 19:03

my current life professionally is the opposite is it to oppose the thesis that the re-election of President States is in the public interest. He makes 19:13 his blanket statements. Funny things bounders which is basically nobody agrees with that pieces and try to turn that to a strength and said the reason 19:23 you know that I'm right as no one has ever treated with me in the last hundred fifty years. I think a lot of that argument in the adoption of that 19:32 argument by the other presidential lawyers is kind of is kind of shocking but you see in the reaction to it cuz I don't think it's really bought by 19:42

senators and I don't think it's really even fully bought by Alan dershowitz himself because he's doing a rare thing. He's coming on television walk it 19:51 back and saying cuss words or misconstrued because it plays that was a setback. They're very setbacks of people have high moments in in Loehmann's I 19:59 think it was a setback for the president's arguments because it kind of takes your breath away that and the Absurd performance near 20:07 presence of a gentleman named Ken Starr to argue about the bane of impeachment was another setback for those guys. You are a very proud. 20:17

I am of the Department of Justice. Have you been both a line prosecutor and the US attorney for the southern district? I know that you you take 20:26 enormous pride and the public service. Did you and your colleagues did there? There's a lot of dismay about what's happening in Department Justice. 20:35 Now, what's the state of the Justice Department's and if a Democrat elected in this able to actually take office what has to happen to fix it, 20:42 so But the best part doesn't run is a huge entity. It's a big institution in like a hundred thousand people 20:52

includes the Bureau of Prisons includes the FBI and the DEA and all the US attorney's office has this thing called Maine Justice and in the main the 21:02 vast majority of things that happened there. I still believe that the line level are done with integrity and with Purity and without fear or 21:10 favour, which is the oath you take when you enter that department with her with his drug cases or political corruption cases or fraud cases our sex 21:20 trafficking cases. It's all good work and I tell Boston to ask me all the time. Should I go to the prom dresses should have go to Southern District of 21:29

New York, even though I don't like what's happening the top I say absolutely if you believe in public service, there's no finer place to serve your 21:36 country than that place. At the top. I have a lot of worried about some of the decision-making going on about what looks like 21:42 politicized decision been going on. Beginning with an idiom going in a further back in time when Bill Barr put his own gloss on the Mueller report 21:52 and I think delayed the release of that report inordinately. And so, you know that this is launching of Investigation 22:02

into the investigators, even though it was already Department of the office of Inspector General investigation going on. Important principle of 22:11 justice is that not only must Justice be done must be seen to be done. That's why you have rules like conflict of interest and refusal because people 22:20 have to have faith that decisions are being made not in the interest of politics based on the law on the facts, even if it's not the case that they're 22:27 being made for political reasons, and I think this justice department at the top with Bill Barr, Is is causing 22:35

legitimate and rational people to question whether or not he's serving as you know, what the person kind of support the president of States as opposed 22:44 to the rule of law and I will tell you one person who is not I think trashed his or her reputation and has done a very good job in the long-standing 22:53 traditions of non-political Justice in the department is the current FBI director Chris Wray who does not care who does not use the present talking 23:01 points who defends his institution who mostly keeps his mouth shut and let the work speak for itself. So that gives me some help with that important 23:08

agencies that take a lot of hits recently and legitimately so it's fine and we will stand up what needs to happen when a new Administration comes in. 23:17 I think we need to make sure that they appoint people who care about the rule of law who care about Justice and don't care about politics understand 23:25 the line between law enforcement and politics and don't let people cross that line out there need to be new protocols put in place, but it's about 23:34 bringing good people who want to restore and good faith and Independence fanfiction question a few years ago, and now 23:42

clearly something that ship to entertain. Let's say that a Democrat wins the election November and know that 23:52 that didn't happen. It was it was a rigged election and I didn't lose them and I'm not going I mean write me like we did laugh 24:02 what happens. How does that how does that play out? How do you how do you take refuge in the Rose Bowl? I don't know. 24:10 So I look right. So I think the likelihood of that of his not leaving just straight-up, you know barricading the doors is unlikely and I don't think 24:21

that would be tolerated by Civil Society on to be tolerated by the cabinet. Although who the hell knows. I think a more realistic risk. 24:30 It's almost not even then if it's a close election, I think Ian bremmer who I think you had on phase last year night. I just interviewed 24:40 for my podcast this week who talks about global risk with a long discussion about in the podcast this week in an election for tickling to close 24:50 election in which Trump loses and does leave office peacefully. He will do everything he can to undermine legitimacy of his opponents Victory. His 24:58

people will do everything they can to undermine the legitimacy of the other person's victory. And you will have 60-70 million people who will not 25:08 believe that that is their president doesn't border and there's some crazy things being said by some people in some parts of the country where they 25:15 support the president about how they will react and not all of it is non-violent. And if you have a country in what you did was pull right now you 25:24 think we divided now now think about what happened in the close election with Donald Trump will say with great fervor that illegal people illegal 25:31

aliens in his words voted space aliens may vote in dead people voted and I should have won in a landslide and all of his supporters. Believe it when 25:39 he says it what is that going to do for legitimacy? What is that going to do in the Senate? What is that going to do for an agenda for the next 25:47 Democratic president? It's kind of worrisome to think about so we be like 10 months give or take nine months. What are we what do we need to do? so 25:53 absolutely everyone has a lot of issues I care about whether it's climate change or its income inequality boards 26:03

if your Progressive All those things will be worse if Donald Trump wins and all 26:12 of those things have a chance to be better if Donald Trump loses and so my humble suggestion is care about your issues care about the particular 26:22 policy preferences that you want support whatever candidate you want. But I have come to the conclusion that whatever you are specific issue is that 26:30 you care about and it's important for your family and for the world the number one way to get there in nine months is to have a different president. 26:40

So don't forget the forest for the trees. Think about that thing happening November 9th assistant the one thing you're caring about right now, and we 26:47 were hoping to end on an optimistic noting. That's the best we're going to do. So, thank you. Thanks for being here. Thank everyone. 26:56

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