DOJ Payback Politics (with Preet Bharara)

Welcome once again to another episode of The Oath and The Office. I am John Fuglesang, and right now we are witnessing a series of extraordinary clashes over the rule of law, the separation of powers, fundamental democratic norms, and from what's being described as an extortion demand over infrastructure to full-on attacks on press freedom. In Jersey and New York, a federal judge just blocked an effort to shut down the gateway tunnel for a president's vanity. The DOJ executed a search warrant at the home of a Washington Post reporter. What do these events say about the health of American constitutional democracy? I have no idea. I'm a dopey comedian. That's why I lean on the star of our show, bestselling author and professor Corey Bretschneider. Corey, it's good to see you. Welcome back. It's always a pleasure, John. And as horrible as things get, I look forward to this conversation every week. It gives me hope. And speaking of hope, we're going to have, after our discussion, a discussion with Preet Bharara. His podcast is called Stay Tuned. I hope you'll stay tuned for that. And, you know, it's an in-depth conversation that we'll have with him about questions of integrity in the midst of such destruction. And so let's get to the destruction. Let's do it. You and Preet Bharara, one-on-one, that's like porn for the angels, sir. That is just a brilliant conversation. But I want to, before we get to there. Is that a quote from somebody famous or you just came up with that? No, that's something I made up. Before you get to your exalted conversation with Preet Bharara, come down to the mud with me for a bit, Professor. Let's begin this because these current headlines about the temporary restraining order to stop the shutdown of the Gateway Tunnel Project, which affects millions between New Jersey and New York City, in essence, blocking a political move to coerce state and local consent. I mean, Donald Trump essentially came out and said, I will release the funds for this critical infrastructure project if you name Penn Station and Dulles Airport after me. Now, Corey, we discussed this on SiriusXM already, but traditionally what you do is if you want to have buildings named after you, you do good things for people. and then later they name buildings after you to honor you for the good things you did for them. This president's doing it differently. He is trying to blackmail people into naming things after him that are already named and saying he will hurt them and not let the projects be built and waste billions if he doesn't get what he wants. I mean, is this a form of extortion that crosses legal lines or is this just really a pathetic, narcissistic version of political brinksmanship? Well, I think, you know, it is narcissism. And this is a person who wants to put his imprint, he put it on buildings in New York City, and now he wants it on a public monument in New York City or train station. He wants it on airports. He really wants to brand the name Trump. He would put it on the Lincoln Memorial if we let him. He wants to put that brand on our entire country. And what that stands for, it's a symbol, I think, if nothing else, of the destruction of democracy into a kind of kleptocracy, a regime of theft. And, you know, thankfully, he can't be indicted for extortion likely, that, you know, there's a question anyway about whether this is part of his official duty, but a good chance courts would say it is, and as part of his official duty, it's protected. That's the horror of the immunity case. That's part of why we're talking all of this. You know, I wish I could say, yeah, indict him. He committed a crime. But there are other ways to go at him. And what's happening is that this project in New York and New Jersey is pushing back, saying that this is breach of contract. You can't just agree to a plan in which there's expense sharing, have an entire contractual arrangement, and then upend it with an extortion demand. So I think there is a realistic possibility, a very strong possibility, that if Trump tries to stop this project, he's not going to get his name on the building. That's clearly not happening. But I think he also won't be able to stop the funding. And so, yes, ideally, he'd be indicted for something like this. all sorts of things, one of many things. But realistically, what's going to happen, I think, is that courts will slow him down and stop him from succeeding in this attempt to brand all of us with his name. I mean, from a constitutional governance, grown-up standpoint, Corey, how dangerous is it when a federal authority is wielded in such a seemingly personal and, dare I say, petulant way? I mean, major infrastructure, funded in part with federal dollars relied upon by millions, it affects the economy. When that becomes leverage for a personal conflict, not even about policy, I mean, what does that mean for the rule of law? Is there any legal precedent against this kind of tactic? Wow. You know, I would say, just to go back to the beginning, like, isn't extortion? It sure looks like it to me. And isn't that criminal, trying to basically use public money in order to get your demands. I mean, it's mafioso in its characterization. And the thing that's really unprecedented is the Supreme Court's decision that the President of the United States has all sorts of immunity. Again, it's limited. We've talked to Sheldon Whitehouse about ways through legislation to cordon it off, to define official duty very narrowly. But the bottom line is what's unprecedented is not prosecuting somebody for extortion, the idea that we're all under the law. So now we've got to find other more creative ways of fighting back. And that's the reality of this regime, that we haven't faced all unprecedented president of the United States this naked in this aggression. We've seen other presidents act out in different ways, but this kind of raw extortion, we saw it from a vice president, that kind of corruption, Spiro Agnew. But from a president in the open doing this, I think that really is different from what we've seen before. I want to turn it now to another report that the DOJ executed a search of a Washington Post reporter's home professor and filed a bar complaint related to coverage. Alarm bells have been going off in all the hot First Amendment circles on this. Jeff Bezos, of course, has had no comment about a reporter's home being searched. And this is a reporter who people leak to. How do you view this in light of constitutional protections for the press? It seems like this is done to intimidate other journalists more than to punish one. You know, I think our first story, John, is important symbolically. It's about a president trying to put his name on our building and to destroy democracy in a sort of symbolic way. But when I think about this story, if I had to pick one thing that defines whether or not we're in a dictatorship or democracy, It's whether or not the dictator can imprison those and investigate those who are doing things that displeases him. And, you know, you like to think that in America, of course, we have a First Amendment, not just a guarantee of the freedom of press, but a guarantee of free speech more generally. And, you know, in the hot First Amendment circles, which I include the Supreme Court in that circle and all those of us who care about the rule of law, not Donald Trump and his cronies, that's not even a hard thing to talk about. And we don't just have, thankfully, the First Amendment. There is legislation protecting journalists from being prosecuted for their work. And yet all of that, all of those laws, it's not just norms. We're going to talk later about the DOJ and norms. These aren't norms. there's legislation, there's the Constitution, are just being blown through. And they're trying to essentially investigate, maybe charge journalists for doing their job under the grounds that they're committing espionage. Just to get into it, this is about an investigation into the kind of pressure on Maduro, what was happening in Venezuela. This isn't sideline stuff, it's the heartbeat of the questions facing us right now as a democracy. And if you can't have investigations here, then in what way do we have a democracy? It's why the collapse into dictatorship. Are we collapsing? Have we collapsed? That is a very real question right now. And this example is one of the best for showing that. I mean, can you just explain what are the legal limits that the DOJ is supposed to observe before they target a journalist or their communications? I mean, is there some kind of constitutional threshold here that has to be met to justify going into this lady's house and taking her laptops and phone? Well, you know, there is a clear answer about that. When the pre-pararas of the world, when he was U.S. attorney for the Southern District of New York, when he was working at the Department of Justice, we've had Glenn Kirshner on the show now twice, when he was at the Department of Justice, there was a rule that had to be followed internally, which essentially was don't prosecute journalists for doing their job. If a journalist kills somebody or commits murder, fine, but not for journalism. And you can guess what's happened to that rule under the Trump administration. Pam Bondi has not just gotten rid of it, but just blown past it. And, you know, there are laws about espionage, for instance, that traditionally just don't apply to journalists. And there's legislation to protect against that. But when you're Pam Bondi and you're doing the bidding of a president of trying to shut down democracy by shutting down dissent and shutting down the information flow that the press needs to give us to make decisions as citizens. Again, that's not, that's as important as voting. The lines are blown past and all of these norms that protected us, all this law that protected us seem to be at minimum eroding. Now it's not over. I think that the judiciary here, it's such a line that's been crossed. They'll push back, but there is a chilling effect. And that's part of the danger here that the press is being shut down by the president, even if he doesn't succeed in a prosecution imprisoning this journalist, there's fear. And that's the idea here. It seems like this is directly connected in a way to the Gateway Tunnel story with infrastructure. It's all about intimidation. It's all about this government trying to use fear to get its own way. It's not really about policy. I mean, there are people who are defending this search of a reporter's home saying that, you know, it's law enforcement acting within their boundaries. But what happens when a DOJ does things that have the effect of chilling reporting, especially on matters of public interest? It seems like, again, this is why they went after Don Lemon and those four journalists for covering the protest in the St. Paul Church. They know Don Lemon and the black journalists didn't break the law. They're trying to scare other journalists. Yeah. And John, I think that's such an important point that a lot of times, And I think when you and I started talking about all this in 2016, when Trump was running, when even early in his first term, and, you know, Preparar is an example of this, you know, fighting back, refusing to resign, getting fired, the norms were so strong that we thought he's not going to succeed. And now we're in a different world, which is that the question isn't whether or not people are going to prison, whether or not these prosecutions are successful. It's whether or not he can intimidate us into being quiet. And now you and I are talking every week. I don't anticipate us stopping that. There are lots of others speaking out. But there are a lot of journalists, I think, who are being targeted, who must think to themselves, I'm not sure I wouldn't go through with this. Now, it's a different story, but if you add in Jeff Bezos' evisceration of the Washington Post and how hard it is to keep your job in journalism, you know, it might succeed in having that chilling effect. And that idea of the chilling effect, and just to say what that means, it means, you know, apart from the hard power of putting people in prison, scaring people into thinking they might be investigated or prosecuted, that's equally detrimental to the First Amendment. We've got, it's not just a chilling effect, it's a storm, an ice storm of the chilling effect of free speech, the shutdown of free speech. We got to take a quick break. But when we come back, the least predictable members of the resistance to stare down subpoenas by Congress, Bill and Hillary Clinton in 2026. We'll be back in a moment. This is The Oath and the Office. Here's what you've been missing on the Stephanie Miller Happy Hour podcast. This is the Putin playbook. I'm not saying that's wrong. Lie. Back it up with another lie. The Obama ape video. He's like, you know, 16 different explanations, right? Like, oh, it was a staffer. Oh, no, I told the staffer to do it. No, I'm not going to apologize. I mean, you know, I'm going to take it down. No, I'm not going to take it. I mean, it's just it's insane. Right. And everyone knows there's no staffer that posted from your personal account in the middle of the night. Right. It's such a whiner. Just again, whining point USA. All they do. And again, it's Putin's just lie. Hold on, I'm calling Putin for advice. Lie. Keep on lying. Just keep lying. Why are you calling me for it? I tell you. Lie, lie, lie. Now, don't call me again. I'm blocking you. Subscribe to the Stephanie Miller Happy Hour Podcast on Apple Podcasts, StephanieMiller.com, or wherever you get your favorite podcasts. Welcome back to The Oath and The Office. I'm John Fuglesang, along with Professor Gretz Schneider. Corey, I want to talk to you about the Clinton subpoena dynamics we witnessed this week. This has been a really fascinating story. And wow, it's been a long time since I found myself standing up and rooting for both of the Clintons at the same time. But we've seen these reports that Hillary Clinton is pushing for a public hearing ahead of this deposition related to the Epstein files. Bill Clinton did quite a hell of a Twitter thread about how he will not be a prop for these people. and there's a broader fight going on here over congressional oversight tools. They seem to have really embarrassed James Comer, and a lot of people are wondering, why are they doing this? I mean, no president's testified before Congress since Gerald Ford, like 40 years ago. How would you assess the legal and constitutional contours of this battle with the acknowledgement that this is all a distraction from the fact that Trump and Pam Bondi have been protecting child rape illegally, breaking the law every day since December 19th? Yeah I think that the most important place to begin Like why are we even talking about this It because Trump is trying to cast off any guilt and implication that he might have in the Epstein evils I think we can call it based on what we know at this point and put it on one of his opponents Again, that's the common theme, Hillary Clinton and also increasingly Bill Clinton. Now, they would be well within their rights, and I think they would win, to simply fight in court the subpoena because there are rules and principles of law that govern when Congress can force people to testify and when it can't. And that is what a subpoena is. It's compelled testimony. And the question is whether or not there's some legislative purpose here. Now, if Congress was considering legislation to correct the evil of Epstein, to look into the wrongdoing of these networks and to break them up, then I think, OK, there's a legislative purpose. But what's the purpose here? if the purpose is to deflect from the guilt and the tension on the president of the United States and Pam Bondi and covering up, again, evil, that's not a legitimate purpose. So they could fight back. So why are they not? I think because they know they could win in court. And I think, again, they would. But they seem to be, and I'm willing to praise them for this, demanding more and more transparency. You want transparency, we'll give it to you. And Bill Clinton is indicating that he knows something that's going to educate America about office. You know, I think he could just tell us that would be one way to do it. I agree. Do it in this dramatic fashion by facing off against House Republicans. More power to him. Let's see it. I was at the DNC two summers ago. And of course, Bill Clinton was the guy who went off script for 20 minutes, just just went off the teleprompter. He does know how to hijack something. And we forget what an incredibly compelling orator he is. But yeah, I mean, this is the smartest PR I have seen Bill Clinton do in many, many years, that he urgently wants to come out and do it. Now, you're right. He could just get himself booked on any TV show. Hey, Bill, Sirius XM Progress, I'm here, baby, waiting for you. How about the Oath in the Office podcast? Oath in the Office podcast, Bill, come on. I mean, I live near Harlem. We're practically neighbors. But oversight via subpoena power is supposed to be one of Congress's core constitutional authorities. I've learned that from you. And we learned that when the Republicans just loved ignoring their subpoenas because they don't have to. But what happens to the balance of power when subpoenas are ignored or contested at the executive level? Well, I think it's a balance. You know, during the compulsion to testify of people in the Trump administration, the aftermath, I thought that, you know, there was a serious legislative purpose to compelling some of this testimony. Of course, Bannon refused to testify and then went to prison for it. But, you know, I think the balance is we have to remember there are moments in history where Congress has abused its investigative power. So it's not as simple as if you're brought to testify, then yes, you should have to do it. So think of the Red Scare, the House on American Affairs Committee, for instance, which was all about attacking those on the left, communists, but also progressives and people who were to the left of center. And were those subpoenas legitimate? No, absolutely they were not. And so they were an attempt to use the tools of government in order to shut down opinion. And I think here, too, it's more complicated. It's not just that. It's an attempt to deflect from the responsibility of the president of Trump. And it's not a legitimate purpose. So, yeah, I think they would be within their legal right to fight back. But again, you know, they're savvy politicians. They can defend themselves. They're not in a position where they're going to look bad in front of this committee. And my bet is on them that they are going to bring out some truths that we haven't seen before and in the process humiliate their political opponents. I think you're right. And oh, I'm buying popcorn. I think for that very reason, we'll see James Comer demure from this when he realizes that humiliating the Clintons won't get him some table scraps for Mr. Trump. I want to ask about this article you sent me in The New York Times that blows my mind about the DOJ trying to recruit prosecutors. The reports say that they're recruiting prosecutors with a strong view of federal enforcement. What does that mean? Well, in this case, it seems to mean that they align with the political priorities of this current law-breaking administration. In other words, they're having a hard time hiring prosecutors to do their dirty work for them. This is fascinating from a constitutional perspective, from an institutional perspective. I mean, what are the risks of recruitment strategies like this? We don't want you to be loyal to the law. We want you to be loyal to the game show host running the government. Well, I just think what a topic and what a lead in this is to the in-depth interview with Priper Ar. I'm going to certainly ask him about this and talk to him about it. But as an initial way in, let me just say this. You know, the Department of Justice used to be a highly prestigious position. One of the most impressive things that you could do out of law school, really any point in your law career, would be to go and to work in one of the divisions of the Department of Justice. The Department of Justice, by the way, founded during the Grant administration to protect civil rights, to enforce the Ku Klux Klan Act and shut down the white supremacy that was left in this country in the aftermath of the Civil War. What a proud history. And I think for so much of its history, the Department of Justice did amazing work. even during the Nixon administration. Archibald Cox, who went after the president for his crimes, exposing him, working with the grand jury that uncovered so much of the crimes of Watergate, later handing it all over to Congress. A failure to indict the president, yes, but still a proud moment. Leon Jaworski, who continued that fight. The aftermath of Nixon. All of this, what I'm summarizing is this is a prestigious, proud part of our government for so long, And now it is the opposite. It is the tool, the weapon of this president. And guess what? People don't want to go work there. So what does that mean? It means really the hollowing out of this institution and the use of it to go after political opponents. Here's one silver lining that I'm going to ask Preet about. Maybe their incompetence helps, at least in some of these cases, because, you know, with better lawyers, maybe they would succeed in going after some of their opponents. Exactly. I mean, you're right. And that is why we know that they're kind of doomed to failure. This whole thing of deliberately hiring unqualified flunkies. I mean, Pete Hegseth, Kash Patel, Kash Patel, like he's hiring these people because they're not going to say, no, Mr. President, that's illegal. He's hiring them because they're obedient flunkies who are easily disposable. And if, say, in the case of Kristi Noem, things ever get too hot or unpleasant for Trump, you just lance them like a boil and they take all the blame. The flunkies don't seem to realize, Professor, that this Supreme Court immunity doesn't apply to them. But beyond that, it just seems like this is going to wreck this whole partisanship in recruiting prosecutors. prosecutors, this is going to destroy public trust in America's Department of Justice as a neutral law enforcement body. I mean, at some point, perception is going to be a serious problem for the rule of law in this country when everyone knows you can't take the rule of law seriously. Yeah, as they destroy, they, I mean, Trump and his cronies, destroy our institutions, including the Department of Justice, and they are pretty close to having destroyed it. It's not going to be so easy that if we defeat them to just put it back, we really are going to have to rebuild these institutions one by one, and that includes the Department of Justice. I love your reference to our slogan from last week, which is that Trump has immunity, you don't. I had a lot of comments from listeners who love that. We should make t-shirts at some point. But that's part of the reminder, you know, and not just that you might be charged with a crime if you're Pam Bondi, and it looks like some of what she did is not just unethical, but possibly criminal, or Pete Hegseth. But, you know, for lawyers, there's a question of disbarment. And so that's one thing that I'll continue in the conversation with Preet, that, you know, you might get away with it now, but eventually we're going to find out. And you might lose your license. And if you value being a lawyer or a short-term moment in the Department of Justice, it might not be worth it for you. But that's not how these people are calculating it often. But when you consider how they chase down the honest, hardworking prosecutors who went after the terrorists who attacked our government in our election on January 6th, I mean, I don't think it would be punitive for the Democrats to have a purge of the purge. A lot of people are going to get invited to have their jobs back when the Nuremberg trials we're all praying for finally happened. But, I mean, are there any structural safeguards, Corey, in the DOJ, in just basic norms that protect against partisan staffing decisions? Or are those safeguards eroded and they can just hire 25 Kash Patels if they want? You know, there was a lot of discussion, especially after Nixon, about the need for norms. And I think there were norms of independence. And we'll talk about that in the interview with Preet, ways in which they're really the president wasn't even allowed to call somebody, to talk to prosecutors on the phone, that that was seen as so outrageous that it was itself a norm violation. Forget about what was said, even to talk to each other. And that shows you it's a symbol of this kind of independence. The Department of Justice is not supposed to be the president's lawyer. They're supposed to be the people's lawyers defending our laws. And how badly have those norms eroded? My takeaway, and we've talked about this before, but I don't think we could talk about it enough, is that it's not enough to have norms when we think about how to recover this Department of Justice, that we have to create another independent prosecutor who can't be fired by a president, who can look into the wrongdoing of a president. And yes, through legislation, if we were to bring this back, we would need a new law to do this. It was in existence, the independent prosecutor between Carter and Clinton. Clinton got rid of it because he didn't like being investigated by Ken Starr. If we bring it back, we should give protection from firing to allow that independence of investigation of even the president. And we should give, and this relates to what we were talking about before, the ability to even indict a sitting president. And that means narrowing the immunity case. Okay, but you say, you know, if we get it back, I mean, what would it take to restore it? The Justice Department's independence has been compromised. I mean, what would it take to restore it with a president who's not capable of wanting that? You know, like, day one, you'd have to have someone who followed the Epstein files law that was signed in December. Yeah. You know, recoveries take time. It's not going to happen now. It's not going to happen before the midterms. It might happen, you know, in a new Congress that's controlled by not the Republican Party, but by Democrats. And just to say how it would happen, you know, the Department of Justice is structured by legislation. and right now there's not a lot of protection of the supposed norm of independence and the norm is gone but you could rewrite the law you could rewrite it so that there is independence of the department of justice itself of especially independent prosecutors that idea that did exist in this country right was an idea after watergate that we should bring back and we've got to be creative about that but that's part of the hope you know on this podcast we're always talking about the destruction but there's a way to respond to fix the problem through legislation and that's what we're talking about, and that's what I think will happen eventually. It will take time. It's not going to happen, you know, in the next few months, certainly. Will it happen in the next Congress? Possibly. I think that's what we've got to get on the agenda. Part of what we're doing is talking to people, educating them about what's happening, but we're also trying to set an agenda for recovery. And when we talked to Senator Whitehouse, for instance, you know, we were able to talk to him about the specifics of what this might look like, not just ask him questions. And we'll continue to do that. We have to take a quick break, but when we come back, it is happening. It is on Corey Bretschneider and Preet Bharara. You don't want to miss this. This is The Oath in the Office. Hey all, Glenn Kirshner here. So friends, I hope you'll join me on my audio podcast, Justice Matters. Do you care about ethics in government, criminal justice reform, a conflict-free federal judiciary? I thought so. On Justice Matters, we take on issues involving the need to reform our government and its institutions. And we talk about real, achievable reform. I hope you'll join us. Look for Justice Matters wherever you usually get your podcasts. Welcome back to The Oath in the Office. I'm Corey Bretschneider. Today, it's my pleasure to be joined by Preet Bharara, the host of the podcast Stay Tuned with Preet. It was my pleasure to be on that podcast with Preet and to do a live event with him at the New York Historical. Preet, of course, is the former U.S. Attorney for the Southern District of New York. He's a former Justice Department official, and he also teaches at NYU Law School in addition to his law practice. Preet, I want to start with the DOJ. You've been inside that institution at a very different time in our history. And, well, I should say first welcome. Nice to be here, Corey. Thanks for having me. Real pleasure to have you. So as I was saying, I mean, you've been inside the Department of Justice, but it was a very different Department of Justice when you were there. And I'm just hoping that we could start by orienting listeners and getting some of your thoughts about the difference between the DOJ that you were a part of and what you're seeing right now. So I was hired into the department as a young prosecutor in the Bush administration. And there was no litmus test for politics. And you weren't asked if you support the particular president. And you weren't asked who won the last election. And nobody asked you your party affiliation, your ideology, or anything else. And that is how it should be. And when I was U.S. attorney for almost eight years, appointed by Barack Obama, I was a political appointee. But all the assistant US attorneys we hired, the prosecutors and the civil lawyers we hired, we hired without any attention to or inquiry about their political affiliation, their party affiliation, or their ideology. What mattered was, do they have good judgment? Do they have good character? Do they practice their craft well And no doubt under Republican presidents and Democratic presidents you know many people are independent but you know hired into the ranks of the Justice Department were many people of opposing and differing points of view but that did not matter Didn't matter. That seems to matter today. So that's point one. And that's a terrible thing. Point two is, you know, we had a pretty full Justice Department. Most U.S. attorneys offices, as well as the main office in Washington. you know, the what we call main justice, you know, other than on those occasions when there was a budget freeze or, you know, hiring freeze or a government shutdown, operated at full capacity because you needed that to vindicate the rights of victims, to maintain public safety, and to do the job of justice. We now have, as I was talking about on my own podcast just a couple of hours ago, a fleeing of massive numbers of line prosecutors, some of them being fired, some of them being relieved of their duties, from U.S. attorneys' offices all around the country and from the Washington office in the District of Minnesota itself, which is the scene of a lot of terrible things in government overreach. They've gone from an office of 50, I think, to 20, which, if I'm doing the math correctly, is a 60% decrease. We used to fight for every single full-time employee allocation in budget with our lives because it was so important. Everyone had a full docket. But more troubling than the lack of staff and the diminution of the ranks of prosecutors is why, right? You have people who were hired, you know, some of them many, many years ago, served multiple administrations, were screened not only for talent and craft and legal competency, but also for character and integrity and ethics, who are leaving because they think they're being asked to do things that are contrary to their oath and contrary to their conscience. And that's why they're leaving. And that's a terrible and heartbreaking thing. So I could go on and on and on. I mean, what do you think on that theme? And one of the stories that we've been talking about is the coverage about how hard it is to even do recruitment in the Department of Justice now. that when you politicize. It used to be. In fact, you never saw, I think people are tweeting about openings at the Justice Department. I don't know if they're a billboard, but there didn't used to be a billboard. Like 1-800-LAWYER. It was the most coveted, I still like to think it is, prestigious, most coveted jobs. I mean, people would leave highly lucrative private practice for the opportunity to serve at a government's wage in the Department of Justice at various attorneys' offices. I recruited back people who were in the office and then I needed a leadership position filled. And who does this in life? People took 95% pay cuts. People making $2, $3, $4 million a year came back for $150,000. So they could serve the... Who leaves millions of dollars on the table for a job, you know, in the government. Some people do it, not many people do it. I mean, do you think, you know, part of the story, of course, that we're talking about and that you're discussing is the increasing lack of competence in the DOJ? Because if you're not able to recruit high quality people, you're going to wind up with worse lawyering. I'm wondering how that plays out. I mean, is one possibility that there's a, I'm always looking for the hopeful story that in some ways, although there's a kind of destruction of the Department of Justice in its main functioning, that when it comes to some of the ambitions of Donald Trump to destroy democracy, I mean, does that in some ways protect us, having more incompetent lawyers in the Department of Justice, or is that too optimistic they can still do damage and be incompetent? Well, they can do both. They can do both. It still is the case, Corey, that the garden variety cases that offices deal with are not about Donald Trump, not about Michael Flynn. They're not about Hunter Biden. They're not about Jeffrey Epstein, right? They're about, you know, unnamed and unfamous victims and perpetrators who are brought to justice every day in the various offices. So their lack of resources is a problem. Their lack of competence is a problem because the wheels of justice already, I think, per many people, grind slow. And they'll only grind more slowly. Now, with respect to those certain politicized, weaponized cases, you were exactly right. They may be unethical. They may be weaponizing, but they're also incompetent. And you saw that in New Jersey, and you saw that in Virginia, and you see that in a lot of places. So I guess that's sort of a silver lining, that you have people who don't even know how to present to a grand jury indicting a former FBI director, that's probably to everyone's benefit. I want to ask you more about the weaponization, the political prosecutions, but I have a follow-up on the interesting theme that you're carving out, which is I want you to react to there's a theory that law professors are increasingly embracing of a kind of dual regime, that there's a kind of lawlessness, the theory, which goes back to a theory of fascism and various ideas of dictatorship, that there's a theory that says when it comes to the dictator, there's lawlessness. But you still might have a normal functioning rule of law state in relation to normal people. But in a way, I hear you saying maybe the opposite, which is that, you know, actually exactly where we want the rule of law to function, prosecutions of the bad guys, of those who have committed serious violent crimes, that maybe there we're lacking the kind of competence that we need, even for the rule of law. So I don't, does that go too far to say that really? No, I think, look, prosecutors do two things, roughly, right? And this is actually carved out in law and order, the first half hour and the second half, right? And unlike law and order makes out where it's only the law enforcement agents who carry guns do the investigation, prosecutors do the prosecuting and the trial work. I believe in the federal system, they do, prosecutors do both. And so if you have limited resources, what are the things that you urgently have to deal with? You have to deal with already indicted cases of defendants who are already in the dock, right? So you've indicted a case. There's a suppression hearing in a week. The judge has ordered everyone to show up and to have a hearing. You have to do that hearing, right? You have to have a process. And so if both prosecutors on the case resign the week before, you've got to find a new prosecutor, get up to speed right away. But you have to do that because there's a court proceeding and humans have to show up and do the work. The things that are not on the same timetable are investigations. So let's say you have three prosecutors working with three FBI agents to root out corruption in the state capital of a state. You know, that deadline is just the statute of limitations. Right. And so that might be the most important thing going on at the office, not the garden variety case that has a suppression hearing the following week, but chasing down witnesses before they destroy evidence, before they get rid of their ill-gotten gains. But that's what's not going to get done because that's not where you need humans necessarily because it's not a suppression hearing that's been scheduled on the docket. You know what I'm saying? So lots and lots of, and people won't see it right away, but there's an opportunity cost when you pick one thing versus another thing. And that's what you worry about. Yeah, and of course, the worry is that the incompetence of the DOJ isn't just short term, that even if we survive this Trump presidency, there might be long term damage and the damage might go beyond the immediate political prosecutions to more general harm to the system of justice. I did want to pivot to ask you about the political prosecutions, of course, and I'm interested. You mentioned James Comey and Letitia James. I mean, I'm interested in your thoughts. They seem to me, at least, to be raw instances of political prosecutions by prosecutors who are choosing loyalty over. That was my first question. Am I missing anything? I mean, a more complicated case and maybe a more interesting one to get into is the Bolton case. And, you know, there is an argument that there it's more of at least a hybrid. Clearly, there is an element of retaliation. But the argument is that there really were national security issues that he might have acted in a criminal way. And so I wonder, I mean, to help us puzzle through that, I mean, what do you do when there is some element of lawbreaking, but there also is this political motivation? How do you analyze that case? I mean, I'm interested, of course, in your thoughts on Comey and James as well. So sometimes it's hard to figure this out, particularly if you're a lay person. It's also hard to figure out if you're not involved in the case and you have prosecutorial experience. So you have certain indicia of whether something is kosher or not. One indicator is whether or not, and this is not a question that had to be asked before, did the President of the United States post on social media flatly his interest in sending you to prison, perhaps to the death penalty, which is done with certain people, and pronounced you guilty. That's a marker that any prosecution that follows is BS and is weaponized. Second thing you can look at are the charging documents themselves. If you read the Bolton indictment, and I've read a lot of indictments, and my name is affixed to hundreds of indictments that have been filed in court, it has a certain heft. There are certain things in there that you think, huh, I wonder how he's going to defend against this. Not prejudging, he's presumed innocent. And there may be defenses and there may be, you know, it's one side of the story. But it's quite a story of his sharing information with members of his family for purposes of writing a book that are clearly classified. You know, I don't know how that's going to work out, but you read it and you don't think it's trash. Then you read the Cullsey indictment and you think that's trash. Then the third indicator for outsiders, I think, and there may be others, is, you know, who else was involved in the decision making outside of the people who are beholden to the guy who posted the truth social, send these people to prison. And in the case of Bolton, again, it's not dispositive at all. There was a search executed and that search was authorized by a court. So there was the intercession of a court. It just gives you, you know, one data point that somebody found, you know, outside of the executive branch, found there to be some support, probable cause support, which is substantial, that a crime was committed, right? On the other hand, in the James case in particular, first indictment was dismissed. Then we understand from reporting, they went to a grand jury, no true bill, rejected the indictment. They went to a grand jury again, which by the way, is like unheard of and contrary to policy. So you have a dismissal by a judge. So you have the true social getter. She happens to be a political adversary perceived by the president to be a political adversary of the president. You have a dismissal of the indictment. Then you have one grand jury said no way. You have a second grand jury that said no way. You don't have to be Clarence Darrow or his prosecutorial analog to think something's rotten in Denmark. Yeah. I mean, but what's your bottom line on the Bolton case working through that? And I wasn't sure because... Well, I don't have a bottom line. I don't have a bottom line, but I'm just saying, look... Yeah. Well, I guess my thought is, and we could, you know, abstract from the details, but I guess my thought is, even if the way you laid this out... I'm sorry. Yeah. It is still the body of law that exists about malicious and selective prosecution. Yeah. and where people have won on those motions, have not won on the basis of innocence. Right. They've won on the basis of selectivity and maliciousness, right? Right. So it is not necessary. It's a tough uphill road in any case where you bring such a suit or such a challenge, but it is not bound up with your innocence. Right. If you happen to be innocent, right, to have the ability to show that there's no harmful evidence against you, that bolsters your argument that it was malicious and selective, because why are you going after somebody who's innocent? But it is not necessary. No. Right. Yeah, interesting. And I mean, I see the point, which is that in the Bolton case, even if it's true, that there are all sorts of indicators that there really is guilt here, the fact that Trump has targeted him, that might turn out to be the thing that makes the difference here in whether or not this is or is not a selective prosecution, even if he is guilty. I wanted to pivot, Preet, to a question that's on a lot of people's minds. And it's the question of what those in the DOJ should do, the career lawyers I'm thinking about, when it comes to the question of resign or stay. Of course, in Minnesota, we've seen a number of resignations connected to the ISIS role there, to questions of going after even one of the victim's partners. So, I mean, how do you see that? What kind of advice would you give to a member of the Department of Justice now? I mean, I'd invite you, too, to reflect on your own famous controversy where, of course, you decided not to resign during the first Trump administration as a matter of principle and were ultimately fired in Trump 1.0 by Trump. And if that's a lesson in any way in any of this. It's very difficult. So, you know, and my view on this has evolved and it depends on the particular circumstances you find yourself in. So if you're, the problem is, if you are involved in a particular specific concrete matter and you've been given a directive to do something, let's say pursue an indictment or, you know, dismiss a case you thought was a righteous case, you're not the attorney general of the United States. You know, there's a chain of command. you can either do the thing that you think is wrong unethical immoral unlawful unconstitutional that by the way this is not a small thing may put your bar license in jeopardy at some point in the future You kind of don have the option of doing the thing that you think is correct. You kind of have no choice but to step down. If you are the head of the office and you insist on taking a particular action, which you can do, right, then you can force your firing, which I'm partial to. I'm partial to making people fire you on their grounds, which can be seen to be false or fraudulent or improper rather than giving them a buy. But you really kind of have no choice. Then there's a more complicated, I think, region in which you're kind of in a position of authority somewhere in the Justice Department. No one has asked you to do a particular concrete thing that goes against your conscience or your oath or the law as you understand it. But there's, you know, overall, but people around you are doing those things. And in that situation, it's the same moral dilemma that has been faced by lots of people, including, you know, chiefs of staff in the Trump White House in the first term and probably in the second term, which is if I leave someone with less ethics and less morality and less integrity is going to take my spot. So I should fight for what I can fight for here. And I increasingly don't buy that. I think it depends on... Well, it sounds all well and good, but you're tainting yourself and you're cheating yourself and complicity is bad and you're enabling things. No doubt it's true. You have somebody who, you know, there are people who have been in the Trump orbit, including Jeff Sessions and Bill Barr, who were not paragons of virtue in my book as attorneys general, but they had lines. They had some lines, right? And every time somebody with some lines steps away or gets removed, somebody with fewer lines or no lines can take their place. So this is, you know, you're the professor. I mean, it seems to me that all the time... I'm just trying to show my work. I don't know. Yeah. So trying to be thoughtful about this, it's just a really tough thing. And there are arguments in favor of staying, there are arguments in favor of going. As more time goes by, I tend to favor going. Yeah. And if it's just a matter of conscience, I mean, this is just fitting with your thought process here. More and more, we have people around who seem to have no conscience. And when I look at Pam Bondi, it's not just unethical behavior, but I imagine some of it might be even criminal. I don't know if you think that goes too far. And then over time, as the people of conscience over two terms have resigned, what we're left with are loyalists who seem to have no line. So I wonder how relevant any of this advice becomes then if it's pure loyalists who don't even have the kind of conscience and careful. You also, of course, teach and profess a professorial way of seeing this dilemma. Yeah, look, the arrival of Donald Trump on the scene has put a spotlight on some people who have courage. But sadly, I think the record reflects that it shows a lot more people about whom you didn't think of what their moral fiber was or the makeup of their spine was, who don't have courage and like to hold on to power. I mean, for me, it's interesting. You talked about my controversy. My sin, it sounds so quaint now, was determining that as the independent, somewhat independent United States Attorney in the Southern District of New York, that I shouldn't speak to the sitting president of the United States who had called and left a message, that I shouldn't speak to him without knowing what the nature of the call was, given my jurisdiction over various of his properties, businesses, the appearance of impropriety, especially when that call was not made under the auspices of some program or policy and Jeff Sessions wasn't involved. And I never said that I wouldn't talk to the president in any circumstance, But, you know, my integrity told me and my training told me and the example of Loretta Lynch, the former attorney general on the tarmac with Bill Clinton, all told me, don't talk to the president. And 20 hours later, I was told to step down, as were others. But I'm positive that there's a link between my refusal to talk to the president and my being asked to step down. How quaint is that? Yeah, I can't even imagine. And that was the best job. You know, I loved the job so much and thought it was such an important position to have. I didn't vote for Donald Trump. I didn't have respect for him as a politician. But I accepted his offer to stay on because I thought I would be left alone in the Sovereign District of New York to do my work and not to pat myself on the back. And I lost my job. And that's fine. I'm thriving. Here I am with you. You're right. And there's so many people who can't leave their freaking job. Power is not that great that you want to be there no matter what. I mean, I think, too, what an illustration of the difference between the world, I mean, almost a historical document of the world in which the way the DOJ, the way U.S. attorneys thought about the dilemmas that they faced and the independence of the Department of Justice and what those norms meant. And when you look at Pam Bondi now, essentially taking commands from the president of the United States to go after his enemies, I mean, you couldn't even imagine. Step down, have some integrity, have some pride and just get the hell out of Dodge. I don't get it. Look, you have law firms who caved for no reason, for no reason. And we're all very nice and polite about it. My law firm had an executive order issued against it. We went to court. We're one of four law firms, Wilmer Hale. I'm very proud of that. And I don't mean to be overly dramatic and I'm not sure to say, but when I leave these environs one day, ultimately, I'm proud of the fact that I didn't talk to the president. I'm proud of the fact that I went at a firm that went to court and won. Like, you know, more people should want to do that. More people should want to have that be the thing that their associations are known for and that their own personal conduct is known for. And again, I don't mean to get on my high horse, but I just don't get it. For a little bit of power, for a little bit longer, it's not worth it. Yeah. And also when you think about the fact that this regime will end one day and the unethical behavior, the crimes, You know, as we've been saying on this podcast, Donald Trump might have lots of criminal immunity, but, you know, average officials might not in some of these cases. And certainly they don't have ethical immunity and they don't have immunity from. Here's what they're going to say. You know, they're going to say, look, I was a tempering influence on the president. I was a tempering influence in that administration. If it wasn't me, it was going to be somebody worse. And here, you know, you don't know this, but behind the scenes, here are the things that I did. I sidelined this bad guy. I fired this other bad guy. I prevented this other weaponized prosecution. But meanwhile, you were complicit in lots of other bad stuff. And I don't know that I trust a person who wants to stick to their job so adamantly to make the judgments about which things were appropriate to let slide and which things were good not to let slide. But that's what they're all going to say when they come out. They're going to launder themselves, and we should not permit them to get laundered. Yeah, exactly. I mean, you've started answering my last question. This has been an amazing and in-depth and honest conversation, Preet. And I like the idea, too, that in some ways the usual professorial model of resign or not and questions of conscience really have shifted as we're facing a threat of, well, as I see it, dictatorship. And the question of whether you want to be complicit in the destruction of American democracy looks different than the questions of conscience might have in previous presidencies. I mean, we've talked about some, you know, worrying things, Preet, and we're always looking for hope on the Oath in the Office podcast. So that's my last question. I mean, where can we find it? Well, look, it's, we find it where I began in talking about a few minutes ago, when I said the advent of the Donald Trump administration, particularly the second administration, I focus on one of the two things. I focus on the negative in my answer. And the negative is that you find people who have no scruples, who want to hold on to power, who want to hold on to their prestigious position or get a prestigious position. But then you do find people who are courageous and will fight against the tide in their own party. You know, Liz Cheney is one of those people. I think Marjorie Taylor Greene is one of those people. I think I mentioned already, I think the four law firms that fought when so many didn't and were told that they were going to perhaps cease as going concerns. Law firms have been around for decades or hundreds or a hundred years. You know, they took a lot of risk and they did those things. The people of Minneapolis, who by dint of, I think, protesting honorably and peacefully and not giving, you know, the other side an excuse of overreaction to then be more violent and say, see, these killings you thought were unjustified were justified because we now have an unruly mob and these people are savages and they've been called worse things by President Trump. whenever bad things happen, you see two things go on, right? You see some people go along with it because they think that's the way to be. And you see people who defy it. And so I always draw inspiration and hope from the people who defy when it's most difficult to do so, when it's most perilous to do so. And there are lots and lots and lots of those people. And we should hold them up and hoist them up and try to find ways to join them. Yeah. I mean, ethics might look different at this moment and what the right thing to do is. But one of the things that I've gotten from this conversation, it's been such a pleasure to have this in-depth conversation with you, is that, you know, it's especially in the most dire times that we need to think about questions of ethics and that looking for heroes and looking for those people of virtue. And so, Preet, thanks for joining us. Thank you. Thanks for having me, sir. Great to see you again. Great to see you. Thanks for joining us. Wow. I want to thank Preet Bharara for sitting down with Corey. That was great, Corey. This is a guy who's been on the front line since the first year of Trump's first term, and it's so amazing to see how he is still fighting for the rule of law. Yeah, when you and I first met, it was around the time he told the story about how he decided to refuse to resign, to force Trump to fire him in order to get on the table the corruption that was at the heart, really, of Trump's regime. And that story, you know, is one of the ones that we talked about. So to get to talk to him in depth about what happened and his thoughts about Department of Justice independence, and also to end on the hopeful note to talk about ethics and the importance of ethics, especially in the midst of this attempted dictatorship, and finally to get his ideas about hope and that theme of the Oath in the Office podcast that we always come back to, that yes, it's a dark moment, but we will recover. He was an exceptional guest. We'll have him back, and what a pleasure to have him. What a pleasure, of course, as always, John, to speak to you every week. Well, and I thank you, Corey. There's no one I'd rather spend multiple constitutional crises because we're way beyond the constitutional conflicts. We're in multiple juggling constitutional crises with live chainsaws. And I mean, I got to say, like, really, it is the judiciary that's the primary bulwark against this overreach. I mean, God bless all the good people marching in the streets, but it ain't the press right now that's doing it. And it sure ain't Congress that's doing it. I mean, these other institutions are supposed to play equal or greater roles, but it really is the judiciary. If you had a chance to tell everyone in America about what's at stake legally and constitutionally in these conflicts for the months ahead, what would it be? Well, John, I mean, I wish I could say that we could look at each of these conflicts and, you know, there's a question about search and seizure and ICE ignoring it. There's a question about the 10th Amendment and ICE ignoring it. There are the questions about extortion that we talked about at the beginning of the podcast and political prosecutions that I talked about with Preet. But really, I think it's a mistake to just see these as isolated things. The thing that really is at stake is our democracy and the threat that the presidency, which is supposed to be bound by the rule of law, might be used to destroy democracy itself. It's something that the anti-federalists worried about, that the founders were aware of. And wow, it really might happen. And I don't want to hide from that. That's what we're showing every week. But I also don't want to hide the hope because we are fighting back. And I do think that in the end, the fact that we're fighting, that there is a constitutional crisis, that we haven't given up, that there's a crisis at all, not subjugation, that that's where the hope comes from. Well, I want to just thank you, Corey, for just helping us navigate this extraordinary moment where legal norms and constitutional order and political power are intersecting in ways that civics class didn't prepare us. And thank you for knowing all the Bad Bunny lyrics, too. What is the best way for our listeners to follow you, Professor, and keep up with your work the other six days of the week? Well, we have a great newsletter on Substack, so subscribe there. You can listen to us on any of the places that you get podcasts. And I urge you to continue to leave reviews. We've got almost all five-star reviews on the various platforms on Spotify. We have more than 520 on Apple. And of course, we continue to be in that top five. We were four last week. We continue to climb on Apple government podcasts and continue to tell people about it. The reason we're growing is we don't have a huge advertising budget. We do some sharing of ads, but it's really people telling their friends. So keep doing that. If you like this podcast, tell your friends to listen and become aware of what's happening in this democracy and the threat to it. Right on. I want to thank Wendy and Beowulf and everyone who helps us put the show together. I want to thank all of our listeners for being so brilliant and so deeply attractive. And most of all, I want to thank you, Corey, for making me feel a little bit smarter and a little bit braver every week. You can hear me every night on SiriusXM Progress, channel 127. If you don't have SiriusXM, we're a free podcast called the John Fuglesang Podcast. I have a sub-stack too. And my book is called Separation of Church and Hate, a sane person's guide to take back the Bible from fundamentalist, fascist, and flock-fleecing frauds. Corey, I feel better about my crumbling democracy already. Thank you. And we'll see you guys next time on The Oath in the Office.