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Oct. 27, 2019 - The Ben Shapiro Show

01:07:14

Preet Bharara | The Ben Shapiro Show Sunday Special Ep. 74

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	If you're a federal judge and you piss off the president, he tweets at you and you get to keep your job for the rest of your life.
	If you're a U.S.
	attorney and you piss off the president, you get a podcast.
	So it's quite a different way of going about it.
	Hey, hey, welcome.
	This is the Ben Shapiro Show Sunday special.
	I'm super excited to welcome to the show former U.S.
	Attorney for the Southern District of New York, host of Stay Tuned with Preet and the author of his new book, Doing Justice, Preet Bharara.
	Preet, thanks so much for stopping by.
	Thanks for having me.
	I really appreciate the book.
	You call me dude?
	I call a lot of people.
	OK, all right.
	I am.
	Well, good.
	I don't want to misgender you.
	All right.
	All right.
	Don't start.
	It's like he's into that stuff.
	So the book is Doing Justice, A Prosecutor's Thoughts on Crime, Punishment, and the Rule of Law, and it really is first rate.
	For folks who only know you on the right from the big blow up with President Trump, firing you or resigning you from the Southern District of New York, what's been your career path to get to now being a podcast star?
	So it's not the ordinary career path.
	But just one thing off the bat, thanks for having me on.
	Thanks for mentioning the book.
	I don't know if you appreciate this, because we move in different circles, but my book came out the same day your book did.
	And I was very excited when the New York Times bestseller, everyone loves the New York Times when it comes to the bestseller list, right?
	Whether you think it's fake news or not, or failing or not.
	And I was very excited to tell my family when it first came out and I got first dibs at seeing it, this book debuted at number four on the nonfiction bestseller list.
	I appreciate you mentioning that.
	and they saw the list, and they're like, great, but Ben Shapiro beat you, and you debuted at number one.
	I know you're probably modest and don't want to have me remind people, but it did.
	And so I just want you to know I've hated you ever since.
	Screw you, Ben.
	I appreciate you mentioning that, and that does give me a surge of warmth in my heart.
	Why don't you tell me about how you got into the podcasting space?
	So I spent my whole life as a lawyer and wanted to be a lawyer from fairly early on.
	Stereotypically, my family, Indian American immigrant family, my dad was a doctor, was a pediatrician.
	He was born in India.
	I was born in India.
	I'm an immigrant myself.
	And the dream for him, like it may be in a lot of immigrant families from that part of the world, not to overly stereotype, but was for his kids to become doctors.
	It was me and my brother.
	And I was not so good in chemistry.
	I was not so good in other sciences.
	Not bad in biology.
	But my path was towards the law, because I thought that would be the best way to make a contribution.
	And then the kind of law I wanted to practice after being in private practice for six years was to be a prosecutor, because I thought it's the best use of whatever skill set I had as a lawyer to do good and to protect the community.
	And uniquely, I think, among sets of lawyers, I have great respect for lots of different kinds of practices that people engage in, or even when they leave the law.
	But unlike a lot of lawyers, you don't have to make an argument you don't agree with.
	You don't have to take a position that you think is not just.
	Your job every day is to either bring a case, if you think it's appropriate to do so, and if you don't think it is, then you don't do that.
	I had an interim period of time where I worked on the Senate Judiciary Committee from about 2005 to 2009.
	Then I became the U.S.
	Attorney.
	And then, as you have alluded to, The election went away.
	A lot of people didn't think it was going to happen.
	President Trump got elected, and I assumed I was going to be out of a job at some point through a normal transition process.
	And then I wasn't, because through Senator Schumer, he asked me and then asked to meet with me personally at Trump Tower on the 26th floor, personally asked me to stay on for whatever reason.
	We can talk about it or not talk about it.
	Some months later, in March of 2017, Lots of people were asked to resign.
	I wanted to make sure that I was being fired.
	I refused to resign for reasons we can also discuss.
	And then I was gone.
	And then the question is, you know, you're a lapsed lawyer, too.
	Do you go do the normal thing that people do, which is go to a big law firm, which pretty much everyone in my position as a U.S.
	attorney in the Southern District goes and does?
	Based, I guess, a little bit on the circumstances of my departure, and for some other reasons.
	People were interested in having me write a book, which is really not about the circumstances of my firing at all.
	I mean, I think Trump appears less in the book than a lot of other people, most other people.
	And I thought, you know, I could take this period of time while I'm writing my book.
	I don't know how long it took you to write yours.
	For me, it was really hard, and I didn't think I could do too much else while I was doing the book.
	And I thought, my brother—it's good to have a brother who is also a lapse lawyer—and started this media company, and he had the possibility of being able to support a podcast.
	And this was around the time that it seemed to be clear that there was a constitutional requirement For people formerly in government to have a podcast.
	Everyone has a podcast now.
	Lots of former federal prosecutors have podcasts now.
	Every time you look at a TV anchor, they also want to have a podcast.
	And I thought, how hard can it be?
	As you know, it's a lot harder than it looks.
	And I thought I could write the book and spend some time doing that and also speaking, you know, around the circuit, around the country about things that I care about, and also talk about issues I care about and have guests, and I found it to be a very rewarding thing.
	Bassem Youssef, who's this guy who you may know, who had been one of the leading comedians, although he's a doctor, by training in Egypt.
	Before the regime change.
	And he was being harassed a lot for being this outspoken person exercising his right to free speech, which was not the same as we have here when he was in Egypt.
	And at one point he had even more followers than you.
	I think he had 30 to 35 million viewers a week to his comedy show.
	And he leaves, and then for a period of time he was doing a podcast with our company.
	And it occurred to me, to go back to your original question, why are you doing what you're doing?
	The arc of justice is long, but it bends towards podcasts, I think.
	It certainly bends towards social media fame.
	I mean, that's an obvious truth.
	But let's do some of the Trump stuff first, and then we can get to some of the deeper ideas in the book.
	Sure.
	Because that's obviously the headline.
	So what exactly transpired between the time when President Trump talked to you and asked you to stay on and the time when he asked everybody to resign, you among them?
	I don't know.
	It was an extraordinary thing to be asked to meet with the president-elect of the United States, particularly at that time.
	It was, I think, the call that he made to Senator Schumer came eight days after the election, when presumably other things were going on, and he was still trying to figure out what his cabinet was going to look like.
	And then he asked me to come meet with him, which I did, at a time when he still hadn't picked his Secretary of State.
	That was the week when, I think a day or two before, John Kerry had met with him and they had that famous dinner where the president has his normal, I think, well-done steak with A1 sauce or ketchup and a Coke.
	So it was an extraordinary thing that you've not seen before, because usually these things are handled out of the Justice Department.
	I never met with President Obama.
	He never called me once.
	I never had a solo meeting with him ever during the seven and a half years that I served under him, seven years I served under him.
	So, you know, it was a compliment, I thought, to the office.
	I thought it was a compliment to the work that we had been doing and his appreciation of the work that we had been doing.
	The weird thing that happened that I've talked about on Stay Tuned, my own podcast, is he began calling me from time to time, which is odd.
	In the middle of the meeting, by the way, I made this very clear, he was very gracious, he was very warm, he was very nice about everything.
	Said he'd followed the work of the office.
	It is still a little strange.
	He's asking to meet with me.
	And I was prepared, as other people have said they were prepared to do, Jim Comey, whatever you think of him, to walk out of the room.
	If he said something untoward or he crossed some line, which he did not do.
	But at some point in the middle of the meeting, and Steve Bannon was there.
	Remember him?
	I do.
	And Jared Kushner was there.
	So, you know, the four of us, an odd group of four people, in retrospect, if you think about it, you know, talking about the office.
	And at some point, Donald Trump, the president-elect, pushes a Post-it pad over across the desk and asked me to put my phone number on it, my cell and my office number.
	So I'm like, the president-elect is asking me for my digits, which is kind of strange.
	And I'm thinking, someone must have my phone number because someone arranged the meeting through a phone call.
	So I didn't quite get what that was about.
	Nobody seemed to think that was odd.
	And so I— Trump does his thing, man.
	Well, now it makes a lot more sense.
	Now we know about the calls that he makes.
	We know that he will call the park service, and he picks up the phone.
	That's sort of an M.O.
	for him.
	And maybe that's OK, and maybe that's more normal when you're talking about certain agencies of the government.
	You're talking about a private business.
	It's a little bit different to be on notice that, well, the president himself, soon to be the president himself, has a direct line and cell phone number of the city of the United States attorney in the Southern District, who has, by the way, not for nothing, Jurisdiction, and we see in hindsight that that, you know, was used over things like the Trump Foundation, the Trump Organization, various properties, all sorts of things, business associates and business interests in New York, right?
	So I didn't think that much of it until a few weeks later in December.
	I was visiting Rikers Island.
	There's a whole chapter in the book about our trying to reform Rikers Island and the disaster that that place is.
	So I was without my phone.
	And I come back and I find that the president-elect has called.
	So I was like, that's kind of odd.
	And it could be, you know, just polite.
	It could be something else.
	And, you know, when you're in my line of work and you're a trained lawyer, you know, your spidey sense, you know, tickles a little bit and you want to make sure that you're not going to get yourself in trouble.
	And by the way, you want to make sure you're not going to get the other person in trouble.
	It's the case that when an elected official or a person who's about to take over some office of a political type is making a phone call to someone who's responsible for enforcement of the law, the person who's doing the bad thing or who look like they're doing the bad thing or crossing some line or maybe giving the appearance of impropriety is the politician.
	It's usually not the—it's not the prosecutor, although it can be.
	So I talked about it with some people in my office, my top deputy.
	I notified the head of transition for the Department of Justice for Trump and let them know that this has happened.
	And we agreed that, for various reasons, including that he wasn't yet the president—the last meeting had gone without incident and he hadn't mentioned anything—that I could call him back.
	But I made sure I had a pad and a pen in case something weird happened.
	And he—we shot the breeze.
	He's like, how's it going?
	How have you been?
	And people should be aware, by the way, I had never met Donald Trump before we had that meeting at Trump Tower.
	I had no relationship with him, never corresponded with him, had never been in the same room with him, as far as I know.
	So, it's an interesting call.
	I made a note of it.
	I thought it was odd.
	I think, well, he's going to be busy going forward.
	You know, it's a big job.
	This is before I knew about executive time.
	He called again two days before the inauguration.
	I'm thinking, you must have a lot of other things to do, including writing your inauguration speech.
	And again, he shot the breeze.
	He boasted about some things.
	And I thought, I hope this ends, and I hope he doesn't keep calling me, because it's sort of awkward.
	I made the notifications at the time as well, and I sort of put to the side the issue of what I would do if he actually called me when he was the President of the United States.
	And I also thought, well, it's not as much of an egregious violation, potentially, because there's no Attorney General to go through.
	The ordinary protocol would be For everyone's protection, and for good appearance purposes, is if there's some reason for there to be a communication that's appropriate, and not about a case, and not saying, like, lay off somebody, and not saying go after somebody, which would be inappropriate and potentially criminal, and not saying that was, you would try to route that through proper channels, you know, the Attorney General, the Deputy Attorney General, to talk to the local United States Attorney in Manhattan.
	Fast forward to March 9th of 2017.
	I was away from my desk.
	My assistant was gone for the day, and I got a message from the president's personal assistant—now he's the president of the United States—saying, would you please return the call of President Trump?
	So now I'm thinking this is a little bit different.
	This is the third phone call.
	He's now the president.
	There's no notice of it.
	We have no business together.
	The attorney general has not looped in at all.
	There have been all sorts of reasons to be concerned, you know, from an appearance perspective, of what it would look like if you have somebody who a lot of people thought should be investigated for various things having direct, you know, off-the-record, behind-the-scenes, unprecedented conversations with the United States Attorney with jurisdiction in those places.
	So I paused.
	And I know it may seem odd to a lot of people, and I've had these arguments with folks, so it takes a little bit of length of time to explain.
	You know, ostensibly, he's your boss.
	You serve at the will of the President of the United States.
	He's the only reason why you've continued on for another term in your job.
	He asked you.
	He calls you.
	You call him back.
	It's the height of rudeness and obnoxiousness not to call him back.
	And I appreciate all this.
	I wasn't trying to be rude, and I wasn't trying to be disrespectful.
	But you have to consider a couple of things.
	You know, I had a worry that I think has been borne out, at least from my perspective—not everyone of your viewers and listeners will agree with this—that he does not tell the truth about interactions he's had with people.
	And it turns out, you know, I was never in the Situation Room with him.
	I'm not Omarosa.
	But it turns out, like, everyone who's had an interaction with Donald Trump, including his closest allies, like his personal lawyer and staff members, take some precaution and want to make sure that they create their own record of an interaction with the president.
	So I had that concern going on.
	I had the concern going on, even if it's an innocuous conversation, for five or ten minutes, and it later came out that the sitting president was talking to the local United States attorney with jurisdiction over various things.
	At the same time, the people were filing their emoluments clause, civil suit, and calling for investigation of other things, whether they had merit or not.
	If it later came out that Preet Bharara and Donald Trump were having these side conversations that are really not usual or typical at all, And there was no documentation of what the conversations were about.
	How's that going to look?
	Not just for me.
	How's it going to look for the president?
	It's not going to look very good.
	So we consulted with Protocols and thought, well, in the absence of knowing what it's about, probably we shouldn't—I shouldn't speak to him.
	And what also is lost on a lot of folks who just say, you know, you're a fired, disgruntled guy and you're obnoxious and rude not to return the call to the president, I called Jeff Sessions' office.
	Before I made a final decision, and he wasn't there, and I talked to his chief of staff, Jody Hunt, and I had a frank conversation with Jody Hunt.
	It was very clear to me that no one else at the Justice Department, no one in the Justice Department knew that the president was calling me or why he was calling me.
	And that's also weird, and should, for a normal person, raise red flags.
	And he agreed with me that, not knowing what's going on—again, again, for the protection of the president and the White House.
	Probably best to say, unless you know what it's about, unless it can be, you know, arranged through proper channels, and when Jeff Sessions is back in town, it's a wise thing not to talk directly to the president.
	And the other thing that's hanging over all of this, which people maybe forget, When they say, well, the president doesn't know protocols and he's just being the kind of guy he is, he does.
	And you know how you know he knows about protocols and why it's damaging and potentially disastrous for politicians and law enforcement people to talk offline when there's a pending case?
	Because he campaigned on that issue again and again and again, at rally after rally after rally, ringing in my ears, when he kept making the point that Loretta Lynch Sitting on an airplane on the tarmac at an airport, got a surprise visit from then former President Bill Clinton, whose wife, Hillary Clinton, was under investigation by the same Justice Department that Loretta Lynch was leading.
	And you know what?
	It's—you know, the earth exploded, rhetorically and otherwise, when they had their meeting, and Donald Trump said—and a lot of people agree with this.
	You know, it's not a completely unfair point.
	I think he overstated it a lot.
	And I believe in the integrity of Loretta Lynch.
	And I believe they would not have had an untoward conversation about the investigation.
	Donald Trump went to rally after rally after rally saying about a private offline conversation between Loretta Lynch and Bill Clinton.
	Obviously, that must have been a thing about Hillary Clinton.
	Obviously, that's a corrupt conversation, although no record exists of that conversation.
	And I'm thinking to myself, now the president is calling me—not quite the same situation, but it's pretty parallel.
	And I thought, you know what?
	For everyone's sake, don't return the call, even though I knew, at a minimum, that it was going to piss him off, because he'd think it highly rude.
	And then 22 hours later, The phone call came in from the acting deputy attorney general asking me to resign and saying that he had been asked to call all of the holdover Obama U.S.
	attorneys and asking them to resign.
	So I said something that maybe seems I've gone on some length.
	You can interpose a question any time you want.
	I said, not trying to sound You know, obnoxious, but I'm like, are you sure that applies to me?
	Because I had that whole thing at Trump Tower and he took my hand and he said, can you stay another term?
	And to my understanding, nothing has changed.
	No circumstances have changed.
	Maybe the call was about that.
	I have no idea.
	So until I knew specifically, because I do think whatever you think left or right, there's a decent amount of incompetence at the White House in rolling out new measures.
	Whatever you think of the Muslim ban, the travel ban from that eighth day in the presidency, they had not thought it out.
	Someone woke up and goes to a meeting and says, we're going to announce a travel ban.
	And nobody had thought about certain things like, well, what if you have a green card and you're on your way back to the country?
	What do you do with those people?
	And they had to keep amending those plans.
	And so I also didn't want to resign a job that I loved dearly and I thought was going OK by accident, because that's kind of embarrassing.
	Hey, kids, guess what?
	I resigned.
	I didn't need to.
	And that would be that.
	So I just wanted clarity.
	That the person who asked me to stay, Donald Trump, personally, face-to-face, which ordinarily wouldn't happen.
	In the absence of that, I would have been on my way.
	But I wanted clarity that the person—given, you know, having been around the block, and I wanted just the record to be clear—the person who asked me to stay invited me into his office and looked me in the eye and said, you know, implored me to stay, that he wanted me gone, and if he wanted me gone, I'll go.
	It took 24 hours, you know, to get that clear statement, and then I went.
	So in a second, I want to ask you about whether you believe that President Trump's behavior here is an exhibition of corruptness, or is it just an exhibition of he doesn't know what he's doing?
	You referred to that briefly.
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	Sign up today at So, one of the things that I've experienced, just as a person who's watching both the Obama administration and the Trump administration from the outside, is a feeling that these are obviously administrations that operate incredibly differently.
	People will say things to me like, well, you know, if Obama had said X and Trump says this, then you would have been up in arms.
	And sometimes I think that's true because, you know, Barack Obama was a much more serious human being than Donald Trump.
	Meaning that Barack Obama was a person who actually considered through the things that he said.
	And then when he said them, he usually meant them.
	Whereas Donald Trump is a person who has impulses and then he just speaks the impulse.
	And then the impulse sometimes doesn't mean anything at all.
	And sometimes it's just him sounding off.
	And so coming from the legal world, you know, not nearly to the same extent that you are, but obviously, but I am a lawyer.
	I understand that the focus on protocol.
	I understand everything that you're saying about the weirdness of a person breaking protocol and that looking suspicious and creating the appearance of suspicion.
	Do you think that actually this is attributable Trump's behavior here?
	Was attributable to actual corruption or do you think that it or attempted corruption or do you think that it's attributable to the fact that He literally does not know what he was doing, especially at the beginning of his job, but even now he violates protocol on a regular basis.
	I think it's actually a complicated question because those things are not necessarily mutually exclusive, right?
	In lots of cases, whether you're talking about political corruption or you're talking about bank robbery or anything else, there can be a combination of actions that people take That are, you know, with intended purpose, corrupt purpose, and also a lot of incompetence that goes on, and so you can read things into people's behavior that are maybe, you know, unfair to read into their behavior.
	If you're asking with respect to me, I've never made any accusation or allegation at all that anything with respect to my dismissal was untoward or corrupt or to, you know, stop any investigation or anything else.
	I don't know.
	What I do believe to be true, as I said in relating the story about Loretta Lynch, is that You know, I think we give Donald Trump not enough credit when we say, well, he's new, he doesn't know what he's doing, because he knew to attack Loretta Lynch for doing precisely what he was essentially asking me to do, which is to have separate conversations with him.
	The second thing we know is, in hindsight, if you credit it, which I do, is that on more than one occasion he met alone with Jim Comey.
	And one of the times that he met with Jim Comey, then the FBI director, what did he do first?
	He kicked everyone else out of the room.
	And he said, again, if you believe it or not, I leave it to other people to decide that.
	But the allegation is, he takes everyone out of the room.
	Why do you do that?
	Because, you know, common sense tells you because you don't want them to hear the thing you're saying, because maybe you have some consciousness that it's a bad thing to do.
	And says, can you lay off Michael Flynn?
	Or can you offer me your personal loyalty?
	To that extent, I think when we ask the question, does he know what he's doing, I think in some regard he does.
	The other thing I'll say about his interactions with me, and I don't want to make this about me, and the book has nothing to do with that stuff, because there are bigger issues in the world, and I bear no ill will to anyone based on my departure.
	I've had a great life.
	I did that job longer than I had any reasonable expectation to do it.
	Dream job of a lifetime, seven and a half years.
	But he operates in a certain way in business, transactionally.
	And based on what I've seen and how he deals with other folks, I don't know that he was going to say anything untoward in that call.
	What I believe in, and it's my reasonable speculation, that had I indulged it, right, and taken the call and said, hey, what's going on, and developed a personal, separate, odd secret relationship, so to speak, because we're not going to be doing a press conference on the fact.
	We're going to do a readout of my call with the president of the United States, like leaders of countries do.
	But if I continue that, and based on what I've seen for two and a half years since that time, what's the likelihood?
	You tell me.
	What is the likelihood that six months later, seven months later, when someone's looking at Michael Cohen, and he's not going to call because he's like, I'm a team player.
	He cultivates people.
	He was trying to cultivate Jim Comey.
	I think he was trying to cultivate me.
	And maybe the call would never have come.
	But you never know.
	And months later, when I'm looking at something or he has someone that he's unhappy with, Would he think to make sort of an odd remark and say, you know, what's going on with that case?
	And by that time, by the way, what does it look like?
	You know, you've taken four calls from the president.
	You've been chummy with him.
	Maybe you met with him in the Oval Office.
	Maybe you had dinner, if you're the U.S.
	Attorney or the FBI director or whatever.
	And now you say, Mr. President, now you've gone too far and you sound the alarm bells and you go to the inspector general or whatever and take whatever precaution you need to take, you don't have a lot of credibility then.
	It's really important to have distance and independence, I think, in these matters so people have some faith and confidence.
	So, yeah, on the one hand, I think he blunders forward.
	On the other hand, I think he's more cunning and conniving than people think.
	And whether or not that's true, you still have to protect yourself and your own credibility in your job.
	For me, I mean, look.
	The Mueller report, we can talk about that also.
	There's lots of things people like and don't like in it.
	But the one thing that you see in the Mueller report over and over again, just continuing this theme of conversations, Donald Trump's own hand-picked lawyers and staff, you see in the report, tell him over and over again, Please don't call Jeff Sessions about that.
	Please don't have this meeting with Jim Cohn.
	Just don't do it.
	So it's not like Preet Bharara, appointed by Barack Obama, who is now a critic of the president, saying, oh, it's a terrible thing he made those phone calls.
	His own people.
	We're telling him over and over and over again, there's some things you shouldn't do.
	So this raises a slightly different question, but I think more, but institutionally related.
	And that is, what should the relationship be like between the president and the DOJ generally?
	So there's been a lot of criticism of, for example, Bill Barr and his relationship with the president, particularly aftermath of the Mueller report.
	But people on the right, I think correctly, point out that Eric Holder declared himself Barack Obama's wingman as the attorney general.
	Well, it's a bad thing to say.
	He shouldn't have said that.
	And there was this feeling that, I mean, obviously the president does get to appoint the attorney general, that under unitary executive theory, all these people work for the president.
	So how independent should the DOJ really be from the president of the United States, given the fact that that effectively means they're not answerable to anyone?
	I mean, if they're independent of the president and they're independent of the legislature, how does that work?
	So I think it's both complicated and also very simple, right?
	And I think people conflate two things.
	You have all these agencies in the government, and they're supposed to put forward the policy and the priorities of the president.
	That is the president's right, and he chooses the heads of those agencies with advice and consent.
	You know, the Senate has to approve, so it's not— Right.
	You know, you can't do end runs like he's trying to do with vacancies.
	The Senate has to be involved.
	So he doesn't get his full, unadulterated choice for every position in government, but he gets a lot of deference, and every president has.
	The problem is that the Justice Department doesn't have just a policy function.
	It has uniquely pretty much an enforcement function, right?
	So perfectly appropriate for the president of the United States, no matter who the attorney general is or who the FBI director is, to have regular contact about keeping the country safe, about talking about if there's an epidemic of gun violence.
	Hey, Mr. Attorney General, what's going on with this?
	Are we expending enough resources?
	Should we go to Capitol Hill and ask for more money?
	Should we be adopting different legislation?
	There's a lot of back and forth between subdivisions of the Department of Justice and the White House to talk about what laws they can both get together and support to make sure that we're being protected against outside threats, you know, national security, protecting the homeland.
	You know, there's an important reason why the president gets briefed every day.
	And the FBI and the Department of Justice are a part of that.
	All of that is good.
	All of that is appropriate.
	You wouldn't want that to go away.
	I think that would be a disaster for public safety, for the country.
	On the other hand, What you cannot have, and what you should not have, is not just from a president, no senator, no governor, no mayor, no president should ever be able to pick up the phone and, with the weight of that office, direct, you know, I'm gonna make you a U.S.
	attorney for a moment, U.S.
	attorney Ben Shapiro, hey, I want you to prosecute that guy named X, because I don't like him.
	I mean, I'll just make a more extreme example.
	Everyone, I think, understands that if the president calls up and says, go prosecute that person, which, you know, you see echoes of that, That's bad, or to be inquiring as to the timing of cases because it might help them for political reasons, or to say to lay off somebody.
	Listen, can you see your way clear, like you did with Michael Flynn, which whether or not that's an indictable offense of obstruction, I don't know anybody who thinks that's okay, that's a good thing to do, and certainly puts him in a bad light.
	So there's a separation between sort of policy and resources and overall, you know, rowing in the same direction.
	If a president decides that He thinks that his Department of Justice should be, I think, more aggressive on opioid enforcement.
	Great.
	If the President of the United States says, hey, you know what?
	There's an actor in Hollywood that I don't like very much.
	Think about whether or not you can do a raid on that person's house.
	He's driving me crazy.
	Can you go raid Alec Baldwin's house?
	We want to increase drug enforcement.
	That guy looks like he's on drugs when he's on SNL.
	I'm making all this up.
	Please, no letters.
	Go rate is home.
	Everyone understands that the first thing is okay, increasing enforcement priorities, and the second thing is absolutely not.
	And, you know, there's some gray, I guess, in the middle of those two things, but not that much.
	And that's where the violations take place.
	So that raises a slightly separate question, which is, as a prosecutor, how do you decide which crimes to prosecute?
	And this goes more to the theme of your book, because, you know, obviously, What comes to mind in the sort of Trumpian context is there were statements that were made upon the election of New York's Attorney General Letitia James, where she was stating that her first priority was to go after the Trump Organization, or it was a high priority to investigate the Trump Organization.
	And I thought to myself, well, shouldn't you actually just be uncovering the crime and then figure out exactly who it is that you're targeting?
	How do you make the decision, what is a case worth targeting?
	And are you targeting the case, or are you targeting somebody who you suspect of criminality?
	So, it depends on the circumstance, but generally speaking, and in the vast majority of cases, prosecutors are supposed to be investigators that they work with, are supposed to be looking at crimes.
	So, some guy is dead on the street, there appears to be a bullet hole, you investigate, because a crime, it seems, has been committed.
	Who has committed the crime?
	I mean, it was on 5th Avenue, it was President Trump, and no one comes in.
	Yeah, and it's totally fine, and he gets away with it, right.
	Thanks for reminding us about that, Ben.
	Or, again, a more complicated situation, which we encounter all the time, Out of the blue, the CEO of a company, a financial institution, resigns.
	And there's suddenly a restatement of earnings.
	Tremendously huge change from before.
	That raises red flags?
	Probably.
	You know, folks in my office would jump on it immediately and start issuing subpoenas or making some phone calls to see if a crime has been committed, and if so, what crime and who is responsible for those things.
	That's all well and good.
	And so when people say you should be targeting the crime, not a person.
	That is generally correct.
	But there's another, there's an area where that's actually not fully true that people, I think, respect and appreciate and would support.
	And that is with organized crime.
	You know, we had a much bigger organized crime problem in America than we've had recently, although they're still out there.
	We were still doing mob cases, including traditional La Cosa Nostra Italian mafia cases.
	Once upon a time, in New York at least, there was a separate squad for each of the five traditional Italian mob families.
	We don't have five anymore, but there are still agents who work every day on trying to combat the crimes they're committing.
	Now, in that circumstance, because there has been evidence over time gathered by law enforcement that particular people, identified people who were members and associates and took an oath of a murder and everything else, within families, there's a targeting of them.
	And, In fact, I didn't explore this so much in the book because I ran out of space.
	But that presents actually an interesting question as to the principle, right?
	Do you look at a crime and see who committed it?
	Or is it appropriate in certain circumstances, like with the mob, if you're going to make any effort that's going to be successful, to get rid of them and to stop their bad conduct and their harassment of people and their terrorizing of people in their communities?
	Sometimes, so long as you have evidence that there's reason to believe that it is in fact a racketeering enterprise.
	Then, like, you know, like they did during Prohibition, you look at the person, and then you start, you know, following them, and you do surveillance of them, and you find out who their associates are.
	And you have people, one of whom I describe in the book, Kenny McCabe, one of the best mob investigators, detectives of all time.
	First arrest, I think, of John Gotti was done by Kenny McCabe.
	He's the guy that you sometimes see in movies who would go to the funerals and he would go to the weddings and the christenings and take pictures of people to show the association.
	So just to be fully frank, there are those limited circumstances in which, based on good faith understanding of criminal activity in a criminal enterprise, you do target the person.
	Like John Gotti was targeted by law enforcement based on his identity and belief that he was involved in things.
	Not just, you know, somebody that John Gotti didn't like winds up dead.
	Did John Gotti do it?
	It's both of those things.
	So I think a lot of critics on the right who look at, for example, the Mueller report and the Mueller investigation, what they would say is that this was—Annie McCarthy has suggested this.
	Annie McCarthy, by the way, was my—I don't know if you know this.
	who I disagree with on a lot of things in our old age, he was one of my first supervisors at SDNL.
	Yeah, I think you told me that at one point.
	And he said he's made the case that the Trump-Russia investigation was initiated in bad faith, that it was basically initiated in an attempt to dig up material on Trump's team, and that it was out of control.
	Now, he and I actually disagree on some of this.
	Now, he and I actually disagree on some of this.
	I've suggested that I think that it was probably initiated in good faith and that even if there is evidence that the FISA warrants were later exaggerated for purposes of going after Carter Page, for example, or if I feel that the obstruction investigation that was an outgrowth of the Trump-Russia investigation became the center of the investigation as opposed to the original counterintelligence, or if I feel that the obstruction investigation that was an outgrowth of the Trump-Russia
	But the overall right-wing critique is that this was an attempt to go after Trump on a personal level, not an attempt to go after a particular crime and that the obstruction and the focus on obstruction is in effect a secondary crime.
	It was Trump if it was a crime at all.
	It was an attempt by Trump to kick back against the lack of presence of an original nexus of crime.
	Meaning that the first half of the Mueller report is all about Trump-Russia.
	There's no real allegation in that half of the report that criminal activity took place.
	There's a lot of ugly activity and stuff you wouldn't like.
	Just more precisely, there was a conclusion, there was insufficient evidence to say that the crime had been established.
	Right.
	Which is not really a prosecutorial standard, right?
	I mean, it is in the sense that it doesn't exonerate Trump, but the question wasn't No, but it sort of does.
	Prosecutors don't exonerate people, right?
	No, but by implication, he actually sort of is exonerated in the criminal law sense of the crimes that are being investigated in volume one.
	And we know that by implication.
	Why?
	Because in volume two, he says, we're not exonerating you.
	So if you didn't say it in principle of construction from law school, If you can say exonerated in two and you didn't say the same thing in one, essentially criminally exonerated, which does not mean it's excused or it's wonderful behavior and people should be proud of it.
	With respect to your question about the origins, I mean, I tend to agree with you.
	I think it was done in good faith because it doesn't make a lot of sense to me that the people who I think you don't have any great reason to suspect their motives would be going after the president for the sole reason of going after the president.
	And we have, I think, an Inspector General report And others that are looking at the origins of the investigation.
	So I want to prejudge that, and we can talk about that again when that comes out.
	Yeah, so I don't know that that holds a lot of water.
	What do you make of the final outcome of the Mueller report?
	But I will say, just further to your point, Bob Mueller himself, I don't think anybody has any basis to say that he was in it to sort of somehow destroy or demolish Trump.
	And I say that for a few reasons.
	One, it's not the character of the person that I've known pretty well for a long time.
	Number two, I think in a lot of ways he bent over backward.
	I mean, look, a different special counsel, not a lot of people are upset who are Trump supporters with Bob Mueller, but a different special counsel.
	A Ken Starr, for example, would have written a completely different, I think, I'm not saying him in particular, but a Ken Starr-like person, or even Jim Comey for that matter, and any one of a number of other people who, if they wanted to, could have massively hurt Donald Trump in a way that a lot of Trump opponents wished could have massively hurt Donald Trump in a way that a lot of Trump opponents And he didn't do that.
	Right?
	So it's an odd argument for people to say that the leader of this special counsel's office was really out to get Trump and all these angry Democrats, and yet at the end of the day, He didn't harm him in the way that people wanted, because I think he held back.
	He held his fire.
	People would ask me the question, and I would try to correct them, because I think you're right to worry about this issue, because too many people in the country, whether they don't like Hillary Clinton or they don't like Donald Trump, they will chant, lock him up and lock her up, because they want their prosecutors in these high-stakes cases To be substituted for, you know, a political result, right?
	They're relying—you know, what couldn't happen at the ballot box— It's a deus ex machina.
	They're looking for something different.
	Look, people—all the time, I say, you know, that's not what Mueller is in it for.
	People would ask me the question, do you think Mueller is going to get Trump?
	I said, I don't know what that means, but that's not his job.
	And if he's thinking about it in terms of getting Trump, then he shouldn't be in it.
	His job, going to what you're saying first, was to see what the truth is, see what the facts are.
	There was evidence, and I think nobody disputes this, and it's now been basically confirmed by everybody, although Trump seems not to like the conclusion, there was Russian interference in the election.
	That's like the dead body with the bullet in it.
	Who did something about it?
	Was it an accident?
	Was it self-inflicted?
	Let's find out what the facts are.
	That's how I think about, in some ways, the origin of the investigation.
	There was this interference.
	It was really bad.
	Who's responsible for it?
	In Russia?
	Which country did it?
	And if it's Russia, which people in Russia did it?
	You know, God forbid, were there any Americans involved?
	And among all the Americans in the country, the subset of people who were working on the Trump campaign, did they have anything to do with it?
	And we'll see.
	People would ask me, when do you think Mueller's going to be done?
	Do you think he has a timetable?
	And I would say, this is early on.
	I would say, I have no idea.
	And B, I hope he has no idea.
	Because if he does, then he's prejudging something.
	And people would ask me, you know, I did a lot of high-profile investigations, some of which I talk about in the book, nothing on the scale Of investigating, you know, a presidential candidate like Hillary Clinton or Donald Trump.
	But, you know, I investigated—my office investigated the mayor of the city of New York, Democrat, the governor of the state of New York, Democrat, the speaker of the New York State Assembly, Democrat, and the Senate Majority Leader in New York, Republican, right?
	We went after everybody—prosecuted more Democrats than Republicans over my tenure.
	Two of them got indicted and went to prison, and two of them didn't.
	And in all those circumstances, you just—the job is not to go after somebody.
	The job is to see what the evidence shows and then follow the facts where they may lead.
	And that's it.
	And people would ask me all the time, when are you going to be done?
	When are you going to be done?
	And they would predict that there was going to be an indictment or not.
	And you don't know.
	And as I recite in the book, I have many sections on just the whole sort of exciting business of investigating something.
	And there are times in investigations, including one we did of the Speaker of the New York State Assembly, Sheldon Silver, where early in the investigation, my team would come across some great evidence.
	They would come and they would talk about this evidence, and it would sort of make us think that the likelihood of charging this longtime, you know, essentially—ultimately, we were able to prove—corrupt party boss, Democratic Party boss in New York, The likelihood of charging him was growing.
	And then you would realize, you know what?
	I think we overstated the value of that evidence.
	Because we talked to some other people, and this is the process of coming to any conclusion about anything at all.
	And I presume that the Mueller team did something like this.
	And then later, some other evidence doesn't seem that important.
	And then it grows in value because you finally find a witness to corroborate what that person is saying.
	And ultimately, you sometimes build a case, you sometimes don't.
	But you never prejudge.
	And I don't have a basis for thinking, notwithstanding some evidence of the contrary, The bulk of evidence, I think, suggests that it began in good faith and it continued in good faith.
	And what do you make of the second half of the report?
	Because that's where, obviously, all of the fire has been focused, is on the obstruction half of the report.
	And I will say that I do agree with the critique that it's very bizarre to release a full 200-page report about all the things that somebody does wrong.
	Explicitly acknowledging from the very beginning that you have no capacity to recommend indictment or not.
	It's almost a parallel situation when James Comey came out and proceeded to read Hillary Clinton the riot act and then explain why he wasn't prosecuted.
	Well, he got fired for that.
	Remember, that's the reason Jim Comey got fired because he didn't treat Hillary Clinton well.
	Right, purportedly.
	Yes, of course.
	Yes, of course.
	Because Donald Trump was deeply affected.
	It's very confusing.
	My head starts spinning sometimes.
	Yeah, exactly.
	But there were some of us who were critical of Comey at the time for saying, like, you don't get to spell out all the reasons why you think somebody did all this bad stuff and then say, and we're not prosecuting, because you're not prosecuting.
	The prosecutor's job is to either prosecute or not prosecute.
	So that I talk about at some length in the book, this principle.
	That you have a binary choice as a prosecutor.
	As an ordinary prosecutor, you have a binary choice.
	You charge, you don't charge.
	And you can judge the actions of the prosecutor and the law enforcement investigative agency, NYPD, FBI, DEA, whatever, when they bring a case.
	And then the Ben Shapiros of the world and the Preet Bharara of the world can, in their leisurely way, pick at it.
	Because there's a public document, there's a public proceeding, there is a judge, there is an adversary.
	You know, under the Constitution, you're required to provide counsel if the defendant can't afford it.
	And everyone can make their arguments, whether they're lawyers or not, and they can go on television, they can write columns, and they can say.
	And then you can also make a judgment if the jury rejects the prosecution's case and acquits the defendant.
	More basis for saying it was an overreach.
	And everyone can have, I think, a pretty thoughtful, intelligent discussion about whether that case was fairly broad or not.
	The problem is, sometimes you don't bring the case.
	And in circumstances where you don't bring the case, but everyone knew you were looking at the case, like happened with some high-profile people in my state that we were looking at, Then there are a lot of questions, because you can't judge it in the same way.
	And because the prosecutor's hands are tied and their lips should be sealed, right, you haven't seen the grand jury material.
	So there's a person—you know, money has been paid or a hotel has been built, and people think, well, how did that person get favored treatment if it's a public corruption case?
	In other cases that are very fraught these days, there's a cop.
	He shoots an unarmed—turns out to be an unarmed young African-American kid.
	And how could that happen?
	A crime must have been committed.
	Why did you not charge?
	And then what creeps into the minds of ordinary, good-faith citizens is, was there something at play here?
	Was it politics?
	Was it incompetence?
	Was it racism?
	Was it because Trump wanted this or Trump wanted that?
	And then you worry about those cases.
	But the problem for the prosecutor is, When you decide to decline, not bring a case, there is an impulse.
	And clearly, Jim Comey, who I once upon a time worked for, and I have respect for, and I think he tells the truth, even though he's made mistakes.
	He was on the horns of a dilemma, not the way he describes a dilemma, but it was, in his mind, for good faith reasons, Hillary Clinton should not have been charged, based on how other similarly situated people have been treated under that particular statute over time.
	And he—I get this, because I had the same—trust me, I've gotten a lot of criticism for cases that I brought and for cases that I didn't bring.
	And he thought to himself, look, if people just understand that I'm a good-faith actor here, and the FBI, which I love and adore and appreciate and respect, revere even, They didn't do anything wrong.
	What bothered him, I think, and it's bothered me many times in cases that I have had to oversee, I don't want them to think that this was political.
	I don't want them to think they didn't do it by the book.
	So I'm going to say all this stuff and be open about it.
	That gets you into a lot of trouble.
	When we close those cases, learning a little bit from that example, or confirming our view from that example, when you close a case that everyone knows has been opened, Especially when it involves a political figure, and people have views about that person—not based on the law, not based on some transgressions, but based on their view of whether or not that person should be in office or not, because they like their policies or not, or they trust them or not, or they voted for them or not—you've got to keep your mouth shut, because it causes a lot of problems.
	But it does lead to—unfortunately, I don't have a solution for this or an answer to this—it leads to this dilemma, where people can't fully trust the decision to decline.
	Now, that's the case.
	With all ordinary prosecutions, and the way I distinguish Mueller, a couple things.
	First, you know, remember Mueller didn't release the report.
	President Trump's, you know, alleged buddy, Bill Barr, released the report.
	You know, Bill Barr could have come up with some reason, because he doesn't seem to mind criticism too much, even though there was a full report that was written by Bob Mueller to Bill Barr.
	Remember, we've gone so far in this whole process that people have forgotten that one of the original worries that a lot of people had was, is any of the report going to become public?
	Is all of it going to become public?
	Is Bill Barr going to, you know, shut it all down?
	Bill Barr made the decision to take this explosive report, in particular Volume 2, and put it out in the public.
	He did a summary, which he did very cleverly, I thought, then he puts out the whole report.
	So it was not Mueller.
	Mueller clearly may have expected that it becomes public or not, but his mandate, Bob Mueller's mandate, is a very odd thing, right?
	I guess my question is more about the mandate than it is about Mueller's activity, meaning at a certain point shouldn't Mueller, I mean at the very outset, if he really believed the DOG regulations prevented him from recommending or not recommending prosecution and that the president can't be prosecuted so long as he's in office anyway.
	Shouldn't you have just said, so what am I doing here?
	Like what?
	Well, so the reason why.
	You never investigated a case you weren't allowed to prosecute.
	No, look, correct.
	And I have memos like that.
	And those memos get written all the time.
	I have lengthy memos that I read all the time.
	The difference was, in the ordinary case—and we'll get to why that's not ordinary—in the ordinary case, you're absolutely right, and people should understand this.
	We're investigating, you know, the mayor of a town, for example, or a police officer or someone else, and there are considerations on both sides.
	And my team would put together a memo, and I would read it.
	And at the end, there would be a recommendation.
	We would have a discussion.
	I would say, you know what?
	I don't know that there's enough evidence on this stuff.
	Can you flesh this out more?
	Can you maybe show me a videotape of that transaction or whatever the case may be?
	And then you decide.
	And you either charge because you think you have enough or you go home and nobody ever sees that memo.
	There's no requirement for anybody to see that memo because you're talking about an ordinary citizen.
	And if the prosecutor can't do anything about that person, then that's the end.
	Although there are some circumstances in which you think the prosecutor can maybe refer that person for disciplinary action or something else.
	This is a little bit like that.
	So because the president, uniquely among all human beings in the United States of America, is not, according to the OLC opinions, right, that I'm sure your listeners are now familiar with, is not subject to being criminally charged while still in office, But the principle still remains that no one is above the law, right?
	That there has to be some accountability.
	Well, unlike the random people that I'm talking about in my hypotheticals, who can't be subject to any other accountability, the president can be.
	On the one hand, he has this shield, which is the OLC opinion.
	On the other hand, he has to face the sword of potential impeachment.
	And so that's why a lot of people, myself included, although I think the language is more abstruse than it needed to be, in volume two, Bob Mueller seemed to be saying, although he doesn't say it forthrightly, and I agree with you on the weirdness of it, and it's totally bizarre on this score, but if he had written it differently and if he had said, I think we'd maybe have less of a debate, he said, look, we cannot charge the president for these reasons, because the OLC has found that to be unconstitutional to charge a sitting president.
	However, and he alludes to this, but he doesn't say it quite this way, however, We have uncovered serious misconduct.
	We have uncovered all sorts of things that happened with respect to obstruction.
	We cannot say that a crime has not been committed.
	We cannot exonerate the president.
	There is another body.
	It's called— Yeah, I mean, it's pretty clear that's what he was doing.
	Yeah, but if he had said— I mean, it was a road map for hostile impeachment.
	But I guess, just going back to your original question, which is a good one and a fair one, if he had said those things explicitly, Would you still have the same argument that he should have shut down on day one because what the hell is he doing?
	I mean, yes, because again, he's in the executive branch, meaning the Congress does have its own investigative tools and having the DOJ under the unitary executive theory.
	You have Trump who's presiding over the DOJ.
	Having the DOJ investigate the President on behalf of Congress is a very weird situation.
	I mean, usually the DOJ is investigating on behalf of the DOJ.
	It's not investigating on behalf of the legislative body with its own separate and unique capacity to investigate.
	And if you want to investigate President Trump for a crime he commits while in office, well, again, he's subject to impeachment.
	That's what Congress is for.
	And if you want to wait until afterward, then you can prosecute him afterward for any investigation.
	I understand the point.
	But the problem is, this was not a discreet thing about whether or not Donald Trump shot someone on Fifth Avenue, and there are no other actors, no other participants, and you could make—in that circumstance, I think you have a more valid point, right?
	They're like, well, what the hell are we going to do here?
	Because we can't charge the president.
	We're not going to do this as a proxy for Congress or someone else.
	And I kind of get that.
	Because, you know, at the outset, the only thing we're going to uncover is coupleability on the part of the president or not.
	And that's it.
	And it's a contained universe, right?
	This was not that.
	This was the farthest thing from a contained universe.
	There's millions of things they're looking at.
	There's lots and lots of people, both on the Russia side and on the obstruction side.
	There's lots of people who might have been implicated.
	There's lots of people who have been charged.
	And in the course of doing this investigation—not of the president, I think it's not the right way to look at it—in the course of doing this very broad, I think, appropriate investigation that began, I believe, in good faith, About interference in our election and looking at all sorts of people, including Roger Stone and everyone else.
	And in the course of looking at all this stuff, which we write about in volume one and in volume two, some of the stuff relates to the president.
	And it would be kind of an awkward thing to close your eyes to what the president was doing while you're trying to tell the story and figure out all the things that are going on.
	And then secondly, once you have all this information and you gained all this evidence, You know, to write a report that you're supposed to give to the Attorney General talking about everybody except the President on the basis that, at the end of the day, you can't charge the President.
	You know what I mean?
	Like, all these things are so intertwined, inextricably, that I get your point, but it would be an awkward thing to do in practice.
	So in a second, I want to ask you about your record as a prosecutor.
	I want to talk about your actual book.
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	Okay, so let's talk about your actual record as a prosecutor.
	So you were an incredibly famous high-powered prosecutor.
	There's rumors that the Paul Giamatti character in Billions is based on you.
	Do you know if that's true, by the way?
	There's a very fine Indian-American actor, Paul Giamatti.
	No, I...
	For a lot of reasons, both professional and personal, I don't think there's a lot of resemblance between Paul Giamatti and if you've watched the show, people, my home life is different from his home life.
	Very, very different.
	But you were obviously very high-powered and you brought a lot of high-profile cases.
	A lot of those high-profile cases, the one that put you on the cover of Time magazine was an insider trading case.
	What was your theory of prosecuting insider trading?
	How much evidence did you feel that you required in order to prosecute an insider trading case?
	And also, generally, people have tremendous suspicion of Wall Street.
	How prominent is insider trading?
	I mean, if you watch Billions, they're going poisoning chickens.
	Right.
	So today, I don't keep so many tabs.
	I think it's gone down, at least a certain kind of insider trading.
	So there are a lot of people who suggest that insider trading is a victimless crime.
	I don't think that's true.
	I think you can have the victimization of companies whose private information is being sold on essentially a black market.
	Material non-public information is being given to other folks, which undermines the integrity of their numbers.
	But also, by the way, depending on the nature of the trade, there are people on the other side of the trade.
	You're making the trade based on inside information that the merger is going to happen or the merger is not going to happen.
	And there's someone on the other side of that who's the sucker in that.
	And then overall, I think, It diminishes people's respect, you know, for the market.
	Look, one thing that Donald Trump has said that is correct, a couple things he's said correct, that bears on this.
	You know, there is a swamp.
	I just don't think he's draining it.
	And a lot of the system, in a lot of ways, is rigged.
	And a little bit, you know, I was surprised at how much attention was brought to bear on the insider trading cases.
	I've always said, they're not the most important cases we did.
	Nobody died.
	But they were important.
	And I think part of the reason people paid a lot of attention to them is People get very upset, and it resonates with them when they see people of privilege and wealth, which a lot of these people were, if not all of these people.
	I mean, there was a billionaire named Raj Rajaratnam.
	Had a billion dollars.
	Do you have a billion dollars?
	I do not.
	It's close.
	Unfortunately.
	Not yet.
	With this empire?
	One day.
	I mean, if you can advise me behind the scenes on how to conduct this insider trading of which you speak, then one day.
	You can just claim you have billions.
	That works too.
	And then you say your tax returns are under audit.
	So I provide that template.
	Perfect.
	So I'm a billionaire.
	But there's a person with a billion dollars, and he's still cheating to make, you know, a few extra million dollars.
	And that makes people really angry.
	With respect to what kinds of proof you need, to the extent people have said that it's sort of murky and the rules are unclear, in the criminal system, I think it's very important to make sure that your cases are clear, that you have clear proof of intent, you have clear proof of the trades that you're saying were illicitly done, and that you have essentially smoking gun proof of those things.
	And there are a lot of insider trading cases that couldn't be brought.
	I mean, in the buildup to some of these cases we were bringing, because word got out that things were going on for reasons that are not good, Without reading the complaints, without reading the indictments, some people thought, well, you're sort of overreaching.
	Preet Bharara's U.S.
	Attorney's Office is going too far, and they're going after the gray area.
	I don't think, if you look at any of the cases we brought, and we brought scores and scores of cases, it was often really clear, common-sense evidence, right?
	Because remember, and this is sort of parallel to some of the things we've been talking about with the Mueller investigation and arguments made on behalf of the president.
	You see a dead body in the street, bullet in the heart, and if you can quickly rule out the person didn't, you know, die by suicide, then it's almost certainly a homicide unless it's self-defense.
	But you pretty much ruled everything out.
	So you know a crime has been committed because you're not supposed to shoot people on the street.
	But lots and lots of criminal activity.
	It consists of acts that are by themselves completely lawful.
	Not only completely lawful, but part of the obligation of the actor.
	So, for example, it is part of the obligation of a sitting legislator to vote.
	It is part of the business plan, a perfectly legitimate capitalist business plan, for a hedge fund to trade, to buy a stock, to sell a stock, to go long, to go short.
	All those things are legitimate.
	The thing that makes those cases hard to prove without some smoking gun proof of intent, what's in the head?
	Is that they can say, look, we had this research, there were good faith reasons why we bought this stock.
	So it's actually an incredibly hard case to make, unless you sometimes have an insider.
	I'll give you an example of a case.
	People would say, how do you know, a version of the question you just asked me, how do you know when you have enough to bring a case?
	And one I talk about in the book, we had a guy who, in the wake of this big Wall Street Journal article that broke on a Friday evening, Where the reporter in that story said that the U.S.
	Attorney's Office and the FBI together were bringing massive insider trading cases in the future.
	A guy who had been engaging in insider trading decided, Don Longill, decided that he was going to take the flash drive in which he had insider information and smash it to pieces and get rid of it.
	We had no idea that that happened, and we never had any idea that that happened, except for the fact that later, as I describe in the book, there was another guy who was his best man who decided to flip when approached by an FBI agent who was leading these investigations.
	And when that guy flipped, months later, he went to the apartment of the person who destroyed the evidence wearing a wire.
	And the other person trusted him, shouldn't have, and basically got him to confess that on the night the Wall Street Journal article came out, he took his flash drive, he bashed it to pieces with pliers, he walked out of his apartment at midnight or one o'clock in the morning in New York City, found multiple garbage trucks who were in the streets, and deposited the remains of various bits of the flash drive in those garbage trucks.
	We indicted that guy and we were able to secure a guilty plea from him because of this other.
	So that's the kind of evidence.
	Not always so clear.
	In the absence of having a wiretap, in the absence of having something more direct, you need stuff like that.
	And we also, by the way, it wasn't my idea.
	People before my time pioneered the idea of doing wiretap, using the tool of the wiretap to do insider trading investigations as well.
	That gives you the kind of evidence you need, too.
	And is it really all that common?
	Because if you watch the media.
	It was pretty common.
	I said it was rampant at the time and got a lot of attention.
	I can't remember the exact number.
	I think we brought over a hundred cases, and I thought we were only touching the tip of the iceberg.
	So I think there had not been a lot of enforcement.
	I think, you know, there was a generation of insider trading enforcement under Rudy Giuliani, you know, many, many years earlier.
	And then there was this that, again, began before I got there, but then we continued and expanded our investigations and prosecutions.
	Yeah.
	Well, look, it's common sense.
	When people are around, The opportunity to engage in that kind of conduct, right?
	They're privy to inside information.
	There's not a lot of policing of the conveyance of that inside information.
	And people don't think there's been enforcement actions either by the SEC or by prosecutor's offices.
	They engage in the behavior because there's no punishment.
	And so I like to think, you know, that enforcement Especially when you're talking about people who are privileged and smart and can do a legitimate cost-benefit analysis, it brings the conduct down.
	On sort of a policy level, as a prosecutor, what do you do when the law is just a law you don't like?
	You saw this with President Obama in DACA, for example, just saying, I don't want to prosecute illegal immigration crimes for DREAMers.
	There are a lot of libertarians out there who are looking at insider trading laws, as you suggest, and they're saying, OK, well, now you just have freer flow of information to the market.
	The market now prices in a bunch of information that was going to get priced in anyway.
	It was just priced in sooner.
	So let's say that you are a prosecutor.
	You don't like that law.
	What do you think the obligation is to prosecute violations of laws that you find foolhardy?
	So I don't think that's up to individual sort of line prosecutors to make as a general matter.
	You should not go into that job unless you have a generalized comfort with enforcing the laws, you know, within proper discretion and with respect to what justice requires.
	And I have a whole chapter on this also, right?
	It does not mean that with respect to every case and every law and every statute, no matter how broadly written and how unenforced up to that time, that that means you do everything possible that a prosecutor is capable of doing legitimately.
	And I say, and I think this is true, if every prosecutor did everything they could possibly do and threw the book at everyone they could possibly do it at, and had infinite resources, we'd be living in a hellscape.
	And lots and lots and lots of people would be—if you think mass incarceration is a problem now, it'd be multiple times worse.
	So you have to pick and choose.
	I'm one of the few commentators in America who doesn't actually think mass incarceration is a giant problem, so.
	Okay.
	Well, for another day, perhaps.
	Yeah, exactly.
	And I'm a prosecutor, and I do.
	But I had the luxury, being in the federal system, where we had a lot of resources, and we could pick and choose our cases, and we could decide what our priorities were.
	In some ways, we had more resources than your average DA's office.
	In some ways, we had less, because we had the resources of the FBI.
	But, you know, we didn't have as many people as, for example, the Manhattan DA's office.
	There were more assistant district attorneys in the city of New York, by far, than there were assistant U.S.
	attorneys in the federal system.
	And we tried to pick off the big fish.
	So, you decide to pursue what you think is in the interest of justice based on the resources you have and the threats to the public.
	So, for example, on the issue of organized crime, we talked about that.
	As enforcement actions started to yield some success and the mafia problem began to become a little bit less and fewer bodies were turning up in the Hudson River, you could reduce resources.
	You could have fewer people working dedicated to that.
	And I was one of the people who was dedicated to that when I was a line prosecutor back in the early 2000s.
	So you can reduce that assignment.
	You can reduce that at the FBI.
	The thing that was coming up at the time that I became the U.S.
	Attorney was cybercrime.
	Not that many people were expert in it.
	Not that many people knew how to prosecute it.
	Not that many people had, I think, the technological expertise and the amount of resources that were expended on that.
	Those laws have been on the books for a long time.
	It's just that you've started to see much, much greater bad actions by nation-states, by Lilzek and these other, you know, the hacktivists, as they call them, and other people who are just trying to make a buck by stealing money out of your bank account from a laptop in Latvia.
	So you decide how you're going to balance your resources.
	You've got the mob problem.
	You've got a cyber epidemic going on around the world.
	We'll do a little less here.
	We'll do a little bit more here.
	That means that maybe some crimes you're not prosecuting.
	People understand it when you talk about it in that way, right?
	It's like any business person has to make a decision of allocation of resources, right?
	It's a market-based analysis.
	I'll give you another area that's less easy to sort of understand.
	It's more controversial because it goes to the immigration debate.
	So I don't think of it as you can just sort of forget about a law because you don't like the law.
	You have to think about, given the resources you have, should you be expending time and energy in a particular way?
	So there's lots of debate about the border and the separation of children from their parents, which I think is a terrible thing and doesn't have to be done that way.
	These laws have been on the books for a long time.
	People keep talking about there's a law 1325 and there's a law, USC 1326.
	One is about illegal entry, right?
	You come across the border, you're not a criminal, you've never been in the country before, should you be thrown in jail?
	Should you prosecute that?
	And there's a debate among the Democrats, which a little bit is an idle debate, I will say, on whether or not you should repeal 1325 and should that be dealt with civilly or not.
	And then you have subsections of 1326, Which is the most relevant to our practice.
	You have a provision that says, if you have been in the United States, and you're undocumented, and you committed a crime, a felony, aggravated felony, and then you have been prosecuted for it, and then you were deported, and then you now come back into the country, You can be prosecuted for that.
	Now, when you're deciding, in New York City, where you have Wall Street crime and you have terrorism, which is a huge priority, and you have cybercrime and you have the mob, and you have political corruption, all those things, and you have only 165 assistant U.S.
	attorneys, how much energy are you going to expend prosecuting a human who literally did nothing other than come across the border?
	and expend the resources of the government, expend the resources of the Bureau of Prisons, as opposed to just kicking them back out of the country?
	How do you pick and choose among that category of person who's violating either the weakest section of the statute versus the strongest?
	And before I got there, this is under a Republican administration, the policy decision was made just in terms of proper exercise of resources and exercise of discretion that we would prioritize the prosecution of people who were in the country who had already been kicked out after committing a crime.
	And we don't have the time.
	In the same way, that might be controversial to some people.
	And they might say, well, you don't like the law or you don't like the immigration policy.
	It's really a common-sense application of principles of resources to the problem.
	Nobody thinks twice, if you say.
	And a lot of offices had this threshold.
	So you prosecute credit card fraud.
	And often it's the Secret Service, sometimes it's the FBI.
	And they would say, well, depending on how much credit card fraud or bank fraud was at issue, we'll take the case.
	Nobody's taking the $340 bank fraud case.
	It's not because you don't like that law.
	It's not because you think that's not worthwhile.
	It's not because you don't feel bad for that victim, because maybe the person doesn't have a lot of money.
	$340 is a lot for them.
	But every agent I put, because it's the same amount of investigation often, I put an agent and an AUSA and a paralegal and a secretary on the $340 credit card fraud or bank fraud case.
	How many $1 million cases—because there's plenty of million-dollar cases—I can't do.
	So, in some ways, I think we over-politicize, because everyone is so into politics and about, you know, Trump and not Trump and about immigration and the border and everything else.
	I think we should allow local prosecutors, U.S.
	attorneys or otherwise, to exercise—as long as it's in good faith and it's based on reason and rationality, which I think we both like.
	To decide, are we going to spend our time going after turnstile jumpers, or are we going to spend our time going after domestic violence?
	If you're a DA, for example.
	Or in my office's case, going after people who just—their only potential crime is that they're in the country and they shouldn't be, and they have no record.
	Because there's an opportunity cost.
	People forget that when you make decisions like this, there's always an opportunity cost.
	Like there is an opportunity cost, separate and apart from, I think, So, in one second, I have one final question for Preet Bharara.
	That question is, is President Trump himself a threat to the rule of law?
	But if you want to hear his answer, you have to be a DailyWire subscriber.
	We ask a sexy question, so you go subscribe.
	Go subscribe at DailyWire.com.
	its policy.
	So in one second, I have one final question for Preet Bharara.
	That question is, is President Trump himself a threat to the rule of law?
	But if you want to hear his answer, you have to be a Daily Wire subscriber.
	We ask a sexy question, so you go subscribe.
	Go subscribe at dailywire.com.
	Click subscribe and watch the rest of our conversation there.
	I really appreciate you stopping.
	Thanks for having me, sir.
	It really has been a pleasure.
	And congratulations on the book.
	Thank you so much.
	It's called Doing Justice, folks.
	You should go pick it up.
	And listen to my podcast, too.
	Oh, of course.
	Stay tuned to the prequel.
	Go check that out.
	Thank you, sir.
	Thank you, sir.
	Executive producer Jeremy Boring.
	Associate producer Colton Haas.
	Our guests are booked by Caitlin Maynard.
	Post-production is supervised by Alex Zingaro.
	Editing by Donovan Fowler.
	Audio is mixed by Mike Coromino.
	Hair and makeup is by Jesua Olvera.
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	The Ben Shapiro Show Sunday Special is a Daily Wire production.

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