November 01, 2019

Preet Bharara

Former U.S. Attorney for the Southern District of New York Preet Bharara says that President Trump should be impeached for abuse of power. Bharara discusses what is ahead in the impeachment proceedings and Attorney General William Barr’s criminal investigation into the origins of the counterintelligence probe. Bharara also addresses his brief tenure in the Trump administration before he was fired.

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He was the top federal prosecutor in Donald Trump’s hometown… until the president said, you’re fired. This Week on Firing Line.

As U.S. attorney for the Southern District of New York, Preet Bharara took on terrorists… mafia bosses… corrupt politicians… and Wall Street insiders.

PREET SOT: Today we unseal charges against 7 hedge fund and investment professionals

The first meeting between Bharara and president-elect Donald Trump was friendly

SOT Preet Nov. 30, 2016: We had a very good meeting. I said I would absolutely consider staying on. 

But just four months later….

SOT PREET: I was fired by the President of the United States. [laughter]

Bharara’s former office is now reportedly investigating the President’s personal attorney, Rudy Giuliani over his dealings with Ukraine.

CUOMO: So you did ask Ukraine to look into Joe Biden?

GIULIANI: Of course I did!

CUOMO: you just said you didn’t!

All as the battle over impeachment comes to a head… 


TRUMP: You have a perfect, and I mean perfect conversation. 

What does former US Attorney Preet Bharara say now?

Firing line with Margaret Hoover’ is made possible by the Margaret and Daniel Loeb Foundation. Additional funding is provided by corporate funding is provided by Stephens Inc. 

HOOVER: Welcome to Firing line Preet Bharara.

BHARARA: Thanks for having me. 

HOOVER: You’re now the host of a wildly popular podcast “Stay Tuned with Preet” You’re a professor at NYU Law School and an author. 

HOOVER: But I’d like to talk to you about impeachment and the impeachment inquiry. 

BHARARA: (laughs) Shocking. OK.

HOOVER: You think that there’s enough evidence at this point that President Trump could be impeached for abuse of power.


HOOVER: What are his, what are the offenses and his abuses of power?

BHARARA: Look, there’s a long history of things that he’s done that are documented in the Mueller report. But put that all aside because there’s a new narrative that started developing a few weeks ago with respect to the Ukraine scandal. The one thing I want to say off the bat that I think people don’t fully appreciate, even though it’s a talking point of some of the Trump allies, is that you need not for impeachment show a violation of a criminal statute. There are other ways in which a president is legitimately impeached, and it may be the case that a small violation of a law, an actual violation of a criminal statute, maybe Congress would find if it didn’t affect national interests or the interest of the country and it was a small bore crime, maybe you wouldn’t impeach in that respect. So with respect to what happened with Ukraine. You know, the founders believed there has to be a process by which you remove a President of the United States for, among other things, abuse of power and lack of fitness for office. And so before you even get to the quid pro quo with respect to Ukraine, the idea that the President of the United States calls up the president of another country, in this case, President Zelensky of Ukraine to do an investigation and announce an investigation of a political rival by the name of Joe Biden. That’s an abuse of power, and I think it’s a legitimate way, it’s legitimate for members of Congress who are voting on impeachment and we can talk about conviction on the possibility that later. It’s a legitimate exercise of A representative’s authority and obligation under the Constitution to find that to be a sufficient abuse of power that impeachment is proper.

HOOVER: Specifically, explain why it’s an abuse of power.

BHARARA: I think by definition that’s abusing your power because you’re not doing it in the interests of the country. You’re trying to get something for yourself. We have campaigns for that. We have campaign finance disclosure laws for that. We have all sorts of ways to regulate that. It would not be that different from a president of the United States calling up a sitting U.S. attorney somewhere — the job I used to have — and said, hey, you know what? I want you to open up an investigation against Elizabeth Warren or Kamala Harris or anyone else. You could make an argument that that’s not a violation of a criminal statute. But I don’t think that’s the kind of country anyone wants to live in. And if that is happening, that’s even before you get to the issue of a quid pro quo. Right. Now, you add on top of that clear continuing growing evidence that there was an exchange going on, or extortion going on, and the president not only was asking the president of Ukraine to do it, to open the investigation, but under penalty of not getting 419 million dollars in military aid that’s been approved by Congress. So that’s extortion. And I think a lot of evidence of it. And people who were handpicked by the president, Michael Pompeo and others, who’ve been testifying over the last week have said we thought it was inappropriate. It looks like a quid pro quo. Again, a quid pro quo. Every day everyone commits a quid pro quo. You go into a store, you buy a coke, you give the person a couple of bucks and you get the coke, something for something. That’s totally fine. And the president does that. And senators do it. And you say we’re not going to give you aid unless you change your foreign policy in a particular way. That’s fine. What you can’t do is use the prestige and authority and power of your office to say do this thing that helps me personally, not the country, that hurts a political rival of mine, Otherwise, we’re not going to give you 400 million dollars in aid. We’ve only had impeachment twice, right, in the entire history of the country. And none of them involved this kind of, you know, interaction with a foreign power when the founders wrote at great length at the start of the republic that the thing that they were concerned about almost more than anything else was foreign influence and foreign entanglement.

HOOVER: Washington’s very clear about that in the farewell address. What is, tell me, do you think Clinton’s behavior warranted impeachment? 

BHARARA: You know, I don’t know. I was following, obviously as a citizen. I wasn’t following as closely as I’ve followed more recent things. I think there’s an argument to be made that he committed the crime of perjury. And you can decide as a conscientious legislator, member of Congress. Yeah, you know what? The president should be held to a high standard. And if the president committed a crime, and it’s perjury, you know, related to a personal matter yeah, you can impeach, I think you could also come to a reasonable conclusion, which is probably the slightly better one, that at the end of the day, it didn’t involve the national interest. It was a it was a private thing, shouldn’t have happened, there are other penalties — you can charge the person after he leaves office. You can take away his bar license, which I think happened — because it didn’t have the same implication of involvement of America and American power. 

HOOVER: So we’re heading into the public phase of this impeachment inquiry where the public is going to be able to hear witness testimony in a way that they haven’t yet.

BHARARA: Right. 

HOOVER: How do you think that the process has gone so far in the sense that much of it has been behind closed doors and the little that the public has learned has been through leaks? What is your perception of how this has unfolded to this point?

BHARARA: It’s been like three weeks, four weeks, five weeks? It hasn’t been that long. So in all this discussion and criticism of how it’s gone is a little shortsighted because it hasn’t been that long, number one. Number two, I ran investigations — not of this magnitude, obviously — but I ran investigations when I was a chief counsel on the Senate Judiciary Committee 15 years ago, 12 years ago. And you know how we did them? We had depositions behind closed doors and staff members like me — unknown, nameless, hardworking staff members — would take long depositions of people under oath who are potential witnesses. And we would do it for hours and hours and hours and hours. And then there would be public hearings that everyone knew were coming following that, where we didn’t waste the public’s time. And then the members, the actual members of the Senate Judiciary Committee, would have an opportunity, based on the work that the staff had done, to ask, you know, more directed questions, streamlined questions. It’s the preliminary work you do to build the case so that other people later can do their job in public. And that’s going to happen now.

BHARARA: But a Senate trial is nothing like an actual criminal trial. It’s a political process. I’ll explain. I’ll give an example of a way in which it’s radically different In a criminal trial the twelve ordinary Americans who sit as jurors are not allowed to know anything about the case. They’re not allowed to read the press, much less go on television shows and talk about it. They’re not allowed to even know the defendant. Literally every single one of the senators who is serving right now, all hundred of them, are on the record in some way, shape or form being for or against the president. In a real criminal trial, every single senator in the United States Senate would be struck for cause…

HOOVER: Right. 

BHARARA: …because they all have some kind of bias. But the founders envisioned this system, so it’s not fair and neutral in the way we think of regular criminal trials. And that should be pointed out. It’s a good point to make, but that’s not the process they envisioned. 

HOOVER: Well, it’s a political process. I mean, Hamilton was very clear that this is a political process.

BHARARA:  It’s not about prison. You know, in the same way that I said, it’s not about crime necessarily. Part of the reason it’s not about crime is because the end result is not prison. The end result is being fired from your job, which is another basis to say it doesn’t have to be a technical violation of a statute for it to rise to the level of impeachment. 

HOOVER:  What I want to put you in a position that is probably not one you are in often, or you think about often, but imagine that you are defending the president. 


HOOVER: Right. What if you’re the president’s attorney right now? What are your series of choices in terms of making a plausible defense for him?

BHARARA: So I’d say a couple things. I think it’s great question. Good defense lawyers, and I write this in my book, good defense lawyers concede things from time to time. Right? You go on, you’ll say, ‘You know, my client’s terrible. My client’s a bad guy. I know he’s not’ — I’ve seen brilliant defense lawyers do this — ‘You may not like him. You may think that what he did was not good and not moral and ethical, but you know what? It wasn’t a crime. And this is why he did it.’ And you humanize the person. I think that these House members and senators — they’re in a bind so they can’t do this — but what they should do if they had a reasonable ally in the president is say, ‘Look, you know what? He shouldn’t have called the Ukrainian president. It’s not a good thing. He doesn’t really, maybe, know what he’s doing.’ Use this sort of non intentional crime defense. And he doesn’t know what he’s doing defense. And you say, ‘So, you know, it’s bad. He shouldn’t do it again. He needs to get, you know, sat down by his chief of staff, stop making these kinds of calls. But you know what? You can’t impeach the president for this.’ And you make the argument as far as you can, but you concede. The problem is the president wants everyone to say it was perfect. 

HOOVER: The president can concede nothing himself


HOOVER: So he can’t abide his own personal lawyer conceding anything. Conceding gets you fired by this president.

BHARARA: Look that’s the argument people made on behalf of President Clinton. President Clinton at the time, whatever you might think of him, clearly allowed his allies to make the following arguments: And you know what? No one condones what the president did. He shouldn’t have had the relationship. He shouldn’t have lied about it. He shouldn’t have lied about it under oath. But, my God, are we really going to derail the presidency over this thing? And that had persuasive force. And I think that if President Clinton had taken the same position as has Trump with respect to his conduct — said it was beautiful, was a perfect relationship, it was a perfect statement — I think I think there would’ve been a lot more votes to convict.

HOOVER: That’s a communication strategy, not a legal tactic. 


HOOVER: What the president’s lawyers are saying is that he has actually broad immunity because he’s the president of the United States.

BHARARA: Well, they say take very excessive positions.

HOOVER: Well, so that’s what I want to ask you about. I mean, even most recently, let’s just remember back on the campaign trail or President Trump… 

BHARARA: I know where you’re going. 

HOOVER: …basically suggested that he was going to be above the law in all cases. Let’s take a look.

TRUMP Jan 23, 2016: They say I have the most loyal people. Did you ever see that? Where I could stand in the middle of 5th Avenue and shoot somebody and I wouldn’t lose any voters. Okay? It’s like incredible. 

HOOVER: Right. So interestingly, this comes up in court incredibly recently, where lawyer, where Manhattan’s district attorney is subpoenaing Trump’s tax records and the lawyers argued that the person who serves as the president while in office enjoys absolute immunity from criminal processes of any kind.

BHARARA: Of any kind.

HOOVER: Of any kind.

BHARARA: Not just indictments, but also investigations.

HOOVER: Also investigations. 

BHARARA: Right. It’s preposterous.

HOOVER: Now ultimately, the judge shot that down. But what would happen if the president shot somebody in the middle of Fifth Avenue? 

BHARARA: I think he’d be charged by whoever, whatever D.A. was responsible in that community. 

HOOVER: But the argument. I mean, the argument the lawyers are making is that he’s completely immune. 

BHARARA: Well that argument is going to fail. And it failed to impress the judge. But that’s another example of the kind of thing that I think earns no credibility on the part of the president’s defenders. There are sometimes arguments to make. These are not good ones. 

HOOVER: So what is a good argument? 

BHARARA: I think they would do better to keep their mouths shut a little bit. As I said, concede the conduct was not great, but then hold the line at whether or not that conduct meets whatever threshold and usually – 

HOOVER: Abuse of power. 

BHARARA: Abuse of power or anything else. And also, look. The problem is when you say what’s a better argument? I think the conduct on whatever plane you want to consider it — moral, ethical, legal, political, optics — is indefensible. It’s indefensible for the President of the United States to have made those phone calls and to defend them so vigorously. So what does a defense lawyer do? You’re asking an age old question of what a defense lawyer does when he’s got terrible facts. I think you have to argue the standard. You have to say, look, it’s not great. It’s not good. He shouldn’t have done it. He doesn’t know what he’s doing. But it doesn’t rise to the level of a crime, doesn’t rise level of an impeachable offense. It’s not something to tear the country apart over. And it’s those kinds of rhetorical arguments that you make because the President of the United States… You know, they tried to make substantive arguments, right? ‘I care about corruption. I care about corruption.’ There’s no other instance in which the President of the United States called the leader of another country to talk about corruption. And he mentioned only one human being, right, or one family, the Biden family, which by the greatest coincidence in the history of America happens to be perhaps his chief political rival. Really? Nobody buys that kind of argument and you lose credibility. And I think it frustrates people.

HOOVER: So one of the president’s lawyers actually is your predecessor, one of your predecessors, the Southern District of New York, Rudy Giuliani. 


HOOVER: Rudy himself has been, it now appears, under investigation since last March by the Southern District of New York. What is your assessment, based on what you know, either open source or not, how much in trouble is Rudy Giuliani?

BHARARA: I don’t know, and I’m not in the business of speculating on whether or not someone will be charged. Look, it could be, you know, given how sloppy it appears Rudy Giuliani has been, it could be that he was you know, consorting with people who are engaged in bad conduct. There’s also a report — again, from what is reported in the papers — maybe he’s being looked at under a statute called FARA, Foreign Agents Registration Act. 

HOOVER: That he didn’t register as a lobbyist for a while. 

BHARARA: And his he says, well, he was doing at the behest of the president of the United States. I don’t know how you lobby your own government at the behest of your own government’s head. That doesn’t make a lot of sense. So I don’t know that it Rudy is any particular jeopardy, but he certainly, you know, has gotten off the stage.

HOOVER: In other words, he’s stopped talking publicly… 

BHARARA: Recently.

HOOVER: …since he realized he was under investigation by the Southern District.

BHARARA: I don’t know if there’s a connection there. It could have been that people thought he wasn’t being particularly helpful to the president. 

HOOVER: I may be born yesterday, but I suspect… (laughter) I want to move to another investigation that’s happening right now, which is, in common parlance, referred to as the investigation of the investigators, investigate the investigators, which is an investigation by the Justice Department to review the counterintelligence operation into the Trump campaign in 2015 and 2016. Is there a there there? I mean, certainly it’s happening. And Attorney General Barr has appointed a rather respectable U.S. attorney, John Durham. 

BHARARA: John Durham absolutely is respected widely. But that’s a good thing that he appointed, that Barr appointed Durham to take over that role. Why then Bill Barr, if the reports are correct, is flying all over the world to be personally involved in something like that is befuddling to me. I mean, the whole point of having somebody who is widely respected, nonpartisan, is to give yourself some distance from that, so you’re not causing people to think, well, these are political decisions being made. And so you do that and then you walk in, you step back, so you stay out of it.

HOOVER: And what you’re referring to is that Bill Barr just flew to Italy with John Durham for some unclear reason. 

BHARARA: Yeah. So you do a good thing. You do a good thing and you say, look, I want people to have faith and confidence that this investigation of the investigators, as we have been calling it, is being done in good faith. The problem is, when you do investigations, when it looks like they’re being done for political reasons… You know, justice must be done, as they say. And people also say it must be seen to be done. Well, you know what? It all stinks because the President of the United States, the most powerful person in the country with the largest bullhorn in the world, keeps clamoring for it. And then it happens. Now, it may be that it should happen, but boy, does it stink. To the minds, I think, of ordinary nonpartisan Americans if it happens after the president says it happens, and if it’s clear to everyone in the vicinity of the FBI and the DOJ that the boss will be pleased if it happens. Right. So, yeah, maybe it’s appropriate to open up an investigation. Maybe it’s appropriate to investigate the investigators. But the problem is the president taints all of it. He infects all of it by making it seem clear that he wants to do it for vindictiveness.

HOOVER: So do you think, just in your estimation, that the investigate the investigators effort is political?

BHARARA: I mean, it looks political. Maybe it’s not. I mean, it’s hard to separate. It’s hard to separate anything out when the president is being so political about it. I mean, this is this goes back to the question of what’s the line between law enforcement and politics? And the reason why, you know, we didn’t talk about it, but, you know, one of the reasons I may have been asked to go is the President of the United States called me on the telephone on March 9th of 2017 and I didn’t think was appropriate. I thought that was a line crossed and he shouldn’t be calling, you know, the local United States attorney who has jurisdiction over all sorts of things, including his personal interests, his business interests, his foundation, everything else. You have to create a wall between these things. I mean, you know how many times Barack Obama called me in seven years? Zero times. You know how many private personal conversations I had with Barack Obama in seven years? Zero. 

HOOVER: Right. 

BHARARA: Right. And that’s kind of how it’s supposed to be. It’s one thing to sit and talk to the attorney general about resources and priorities and getting along with, you know, what the agenda for the administration is on crime. It’s another thing to be calling — by the way going around the attorney general — calling a local United States attorney to cultivate him, to maybe do your bidding in the future.

HOOVER: So this isn’t the first time the president of the United States said he’s not going to participate or comply with any of these, of  the investigations. And we have seen in the past a president stonewall a House investigation. And it happens that in 1974, on the original Firing Line hosted by William F. Buckley Jr., Richard Richard Nixon’s Vice President, Gerald Ford, six weeks before he resigned from office, was on this program discussing exactly that issue. I want you to take a look. 

BHARARA: Oh my goodness. 


ANGLE: Mr. Vice President, have you at any point asked the president whether he will comply with a Supreme Court decision? Have you personally asked him? 

FORD: I have not. 

ANGLE: Why not? 

FORD: I think that’s a judgment for him to make. 

ANGLE: [19:12:27] He’s already said that in his judgment, the executive branch as personified by the president, is not subject to the will of the Congress, that he does not need to turn over the tapes or the other material subpoenaed by the House committee because it is a separate branch of government. You are then left in the position where the Judiciary Committee has no means of obtaining the evidence. It feels necessary to reach a judgment. The president has become a law unto himself. How can you then expect them to reach any kind of intelligent decision on his fate? 

FORD: [19:12:55] They have turned over better than 20 of the tapes, and they’ve turned over transcripts of up to the 44 that were originally asked for. Now, I happen to think that the president, number one, ought to abide by the Supreme Court decision. Number two, I think he ought to be as forthcoming as possible in making tapes available that are relevant to the impeachable provision in the Constitution.

HOOVER: Okay, well, ultimately, what happens is the Supreme Court rules that Nixon does have to turn over the tapes, which leads to the unraveling of his presidency and his resignation. In the context of the current inquiry, is there a smoking gun like the Nixon tapes or could there be?

BHARARA: I don’t know. It remains to be seen. I mean, the speculation – 

HOOVER: What about a tape of that phone call?

BHARARA: Yeah. So the speculation in the last day is that this transcript of the call, so-called transcript of the call, between President Trump and President Zelensky of Ukraine is not complete. And the president literally keeps going up in front of cameras and saying it’s a word by word transcript, every comma done by great experts. It says on the document itself, literally on the document itself, it is not a complete transcript. And then finally you have the discrepancy between how long the document is and how long the call was. So, you know, is there a recording of that call? Be interesting to hear. Is it gonna be like the 18 minutes in Watergate? I don’t know. But there could be things that will make things look like a cover up. Yeah, that’s possible.

HOOVER: I want to ask you about Hunter Biden who, upon reflection, has suggested that maybe he did make a mistake by deciding to serve on the board of Burisma, the Ukranian energy company that paid him tens of thousands of dollars to serve on its board while his father was the vice president of the United States and President Obama’s point person on Ukraine. Let’s take a look at what he said.

HUNTER BIDEN ON ABC: You know what? I’m a human. And you know what? Did I make a mistake? Well, maybe in the grand scheme of things, yeah. But did I make a mistake based upon some ethical lapse? Absolutely not.

HOOVER: So, of course, there’s clamoring from the other side to investigate the Bidens. Right. But what is it that would put this to rest in the public’s mind? 

BHARARA: I don’t know there’s anything that would satisfy subsets of people in the country because they’re so polarized and they want to know their people will be a lock him up to the president, lock her up to Hillary Clinton. And, you know, unfortunately, these things have become so politicized that there are lots and lots of people who substitute criminal judgment for their political preferences and want to believe some things are true.

HOOVER: What is the effect of that corrosiveness on – 


HOOVER: Are the public’s understanding of how our legal systems work?

BHARARA: I think it undermines people’s trust and undermines people’s trust in those institutions when, you know, you begin to think that some people get away with things, you begin to think that some some people are causing investigations to happen on the basis of being a political rival, or making them go away because you’re a political friend. And by the way, we should be clear that whatever Hunter Biden did or did not do, if it was a conflict of interest or if it was an ethical violation or legal violation of some sort, what President Trump did... I’ll say something radical, even if Hunter Biden had broken a number of laws, that doesn’t excuse the president of the United States from engaging in extortion to have that case investigated, right? If the president called me and said, you know, start investigating so-and-so, because I don’t like them. That does not make it right for the President of the United States to call for the investigation. Those things should happen the ordinary course and the President of the United States should stay out of it.

HOOVER: If you believe the president has committed impeachable offenses. Does, does he deserve to be removed from office?

BHARARA: Yeah, I mean, so, impeachable offenses, you know, the terminology gets gets weird, right? You know, when our office investigated something, would you say is an indictable offense? That doesn’t mean you convict. That means there’s proof beyond some level, which is probable cause. And then when you get to trial, you have to prove it beyond a reasonable doubt to a jury. Now, generally speaking, prosecutors in my old line of work, you jumped to the final threshold, too. You didn’t indict generally only on probable cause… 

HOOVER:  If you didn’t think you were going to win. 

BHARARA: …because you would have to go to trial at some point. So if you didn’t think you’re gonna win, at the end of the day, you’re gonna prevail on the evidence at the end of the day, you don’t impeach. So it seems like when people use impeachable offense, it’s a shorthand for saying should he be convicted or removed from office? And I think if you impeach the president on this evidence — we’ll see what happens in the Senate — but I think the reasonable vote for a senator is removal. 

HOOVER: So that’s how you would vote if you were a senator? 

BHARARA: Well, I don’t know. I need to see the evidence. Look, you know, it’s still pretty early. You have to see what the volume of the evidence is. And you have to see what the defenses are. And you have to also see what public sentiment is. In the ordinary case, public sentiment doesn’t matter, right? It’s the facts of the rules and the law.

HOOVER: But if you believe, but if you believe there is already an abuse of power. Removal is the only reasonable – 

BHARARA: You know I do, but I haven’t, but I haven’t seen everything. Maybe there’s arguments being made. Maybe he needs a better set of lawyers and make some of these arguments are we talking about and you can be persuaded otherwise. 

HOOVER: To the extent that there are 20 Republican senators who have to be convinced of that position you just articulated, do you think that there is enough evidence, 

BHARARA: Here’s the problem, right? To talk real for a second. Imagine that there are 20 senators who in their conscience think that the president should be removed, he’s unfit for office and that boy would be much better off in the Republican Party and as a country and as as a world if Mike Pence were the president, not Donald Trump. Right. Those 20 senators today, although they have that view and that’s how they would vote their conscience, won’t vote against the president because they have a political connection and they have political fear and you have a president who they know will retaliate against them. That’s another way, by the way, this whole process is utterly different from how a criminal trial would play out. The idea that a defendant might be in a position to intimidate the jury, politically or otherwise, would cause that defendant to be remanded. It would cause his lawyers maybe to be disbarred. None of that’s happening here. Right. The president makes it very clear that any senator who even suggests that he did something wrong is going to be in a heap of political trouble. They’re going to be deciding the question in part on the evidence and also on public sentiment and what the voters in their states think and also what kind of price you’re going to have to pay if they go against the president. It’s not a real trial at all.

HOOVER: So if it’s not a real trial isn’t the better outcome to allow the electorate to decide whether the president stays in office?

BHARARA: There’s an argument for that. But there’s a constitutional process. And at some point. Right, you can say that about sort of anything, you know, any kind of impeachable offense at some point, Congress needs to assert itself. 

HOOVER: Preet Bharara, thank you for coming to Firing Line.

BHARARA: Thanks for having me. Thank you so much.  

HOOVER: Appreciate it. Thanks