When You Come at the King: Holding Presidents to Account (with Elie Honig)

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Pushkin.

Welcome back to Risky Business, a show about making better decisions.

I'm Maria Konakova.

And I'm Nate Silver.

So today on the show, we have a special guest for you, Ellie Hoenig, who is CNN's senior legal analyst, former federal prosecutor, author of two prior bestsellers, Hatchetman and Untouchable.

And he has a new book coming out called When You've Come at the King.

It was great.

I really enjoyed it.

Ellie and I actually first met many years ago when I was working on my book, The Confidence Game, about con artists.

And we were introduced by his former boss, Preet Berara, and both of them were incredibly helpful to me in

getting the background for that, getting case information, and basically taking down some of the con artists, some of the bad guys who I took down in my book.

So

it's great to to be here with you.

Congratulations on the book, which is out this week.

Thank you.

Thank you.

So Maria, I had you on my podcast, if you remember.

I did a mob podcast and I needed somebody to help me deep dive the psychology of what goes into a gangster.

You had written about that for some magazine outlet.

And Nate.

New Yorker, yes.

New Yorker, some outlet or other, whatever it's called.

And Nate, you are in the book, by the way.

You are in this book.

Uh-oh.

Nate, you're on page.

Nate, you're on page 153.

That's pretty good.

How long is the book?

I mean, is it the first half?

You're in exactly half time.

Yes, it's about 300 pages long.

So you're aboutly halfway through on the Hillary Clinton emails and whether the Comeyan investigation ended up costing her the election.

You got it.

And Nate, your conclusion, I think, was boiled down, was basically probably, but we can't know for sure, right?

We can't know for sure.

I blurred it all out of my head, but yeah.

The book takes us through the history of,

I don't know what to call it, special counsel, independent counsel, depending on the point in time that we're talking about.

It's called different things.

But before we move forward, can you just define what this is, what this office actually is, regardless of name?

So it's changed a bit over the years, but currently we call it special counsel.

And this is an official who can be appointed by the United States Attorney General in order to conduct conduct a criminal investigation that would pose a conflict of interest for DOJ itself or other, quote, extraordinary circumstances.

So, conflict of interest would mean something like we're investigating the president who can hire and fire the attorney general, but also plenty of AGs have pointed to extraordinary circumstances, which means essentially whatever the AG feels like it means.

So there's definitely some wiggle room there, but it's a prosecutor within DOJ appointed by the Attorney General for a specific high-profile case.

And by the way,

I'm going to represent the, I'm guessing, substantial minority, maybe majority of a silver bulletin audience

who thinks all this legal stuff, they just don't really have a compartment for it in their brain, right?

They like elections, they like strategy, they like, maybe they like cultural fights, but the legal stuff, yeah, so I'm going to be the, I'm going to ask the dumb questions.

Thank you for asking that.

No, but listen, this book is no, I don't do legalese, and if I I do, I will explain it.

But like, what drives this book is the stories.

I mean, I interviewed 35, 36 people on record, by the way.

Nobody, I didn't allow anybody to be anonymous.

People who, from Watergate prosecutors up until Donald Trump and Jack Smith, that case.

I mean, I don't talk to Donald Trump and Jack Smith, but people, lawyers on the case.

So what really drives this book, I love the stories.

I love the drama of it.

And what you see is it's so human.

Like we look at the law as a set of written statutes and rules, but having been a lawyer and a prosecutor for 14 years and having written this book i guess one of the major themes is it's so much about the human element the human emotions motivations frailties and as much as we try to design these systems and that's important the actual people are way more important

Yeah, and I think we get at that from the title of the book.

The title comes from, you know, one of the best TV shows of all time, slash one of the best political science books of all time.

So When You Come at the King is originally Machiavelli, but we know it from Omar in The Wire.

And that was a very, very, I think that's such an interesting choice because Omar is not exactly like the hero that you would think that, you know, a prosecutor would choose to title his book.

And he has a very, he has a code of ethics, right?

He has his code of morals,

but it's very specific.

So I just wanted to, before we get into, you know, the important stuff in the book,

I wanted to ask about the inspiration behind your title and kind of the background of that.

100% taken from omar and the wire uh omar of course for those who haven't watched the wire is sort of the lone wolf assassin

michael k williams may he rest the late great michael k williams um he's the lone wolf assassin basically and one of it there's a famous scene where he says you come at the king you best not miss now i will confess i had a sense that that maybe went pre-Omar.

And as you said, Maria, it did go back, goes back to Machiavelli, Emerson, others.

But let's be real, nobody said it as well as Omar.

And there's really two things that motivate.

I didn't have the title when, I mean, I don't know if you tend to have your titles when you start your books.

I haven't, I come up with them as I go, right?

But two things.

One, the stakes for all involved.

I mean, I talked to these people who are very accomplished, prosecutors, defense lawyers, White House officials, and they all basically were like, I'm paraphrasing, you know, but they all basically said, we knew that this was it.

This was all I'd be remembered for.

This was life or death politically, legally,

et cetera, professionally.

The other thing is the retribution angle, right?

That's the point of what Omar is saying.

If you're going to come after the king, you best not miss.

Otherwise, there will be retribution.

And that, I think, reflects very much what's happening, certainly right now with Donald Trump.

Yes, I think retribution has definitely been

part of the

both implicit and explicit motives for a long time.

The office,

and when I say the office, I mean the office of special counsel.

is first created after Watergate, right?

Not before, like when Watergate happens, this doesn't even exist.

It leads to the creation.

I somehow didn't realize that.

But, you know, can we just talk about, you know, first, why now, like why you decided to write this right now?

And secondly, like why, why we're starting, you know, why you decided to take kind of this historical approach as opposed to just like.

boom, we're going to start with Donald Trump.

Right.

Like you put us right in the middle.

I mean, look, there are two chapters here about Donald Trump, the two big Trump investigations, but the end part, and this is the why now, is geared at what's happening right now because I argue in the book, it's fundamentally different in kind than anything we've seen throughout our history.

Now, I wanted to go back.

I actually wondered when was the first outside prosecutor?

We'll just call them outside prosecutors because as you say, the nomenclature changes.

But, you know, Watergate's the first one that I think registered for all of, you know, I mean, it's before all three of our times.

I will say I was born in 1975, so it was over by then.

But the first one was Grant, Ulysses S.

Grant.

The reason I put it in there is because so many of the moves we've become accustomed to were being done back then.

Like, it's a long story.

I tell it in like one page, but basically there was a kickback scheme with whiskey distillers in Missouri.

And so Grant gets pressured into appointing an outside prosecutor, of course, right?

And what ends up happening, the outside prosecutor starts, you know, picking up some low, low-hanging fruit.

And then he starts getting close to Grant and Grant fires him.

And then the media attacks Grant.

And then Grant says the media is out to get me.

I mean, it's all so familiar.

We've seen it happen many, many times.

But Watergate, you're right.

I mean, people may not realize.

John Dean, the famous, you know, Watergate witness, the former White House counsel, said to me, it was improv.

There was no, at that time, special counsel, independent counsel laws, regulations, anything that we got them right after because of Watergate, but they were making it up as they went along.

They did a pretty good job.

But

that was the motivation.

That was the reason we have these rules now.

And

even back then, though, I found it really interesting that They were scared that their investigation would be shut down and that the evidence would be destroyed.

So I actually thought it was really interesting that people brought files home and hid them to try to make sure that they would actually have evidence to prosecute.

That was not something we learned in U.S.

history class.

You know, that even back then, because to me it seemed, you know, I think because I'm not a lawyer, I don't, you know, I don't have a legal background.

So maybe this, you know, as a, as just a consumer of news, probably quite naive of me.

But I had thought that this kind of threat to, you know, to the prosecution was more of a modern thing, right?

It was something that just happened basically now.

I didn't realize that this is something that people had been living with and that the office was partly created to try to mitigate that, right?

To try to protect the people who were trying to run these investigations.

So the book opens with a story from Jill Weinbanks, who was then 30 years old, one of the Watergate prosecutors.

And she told me, candidly, she would bring photocopies, not originals, but photocopies of key pieces of evidence, notes, witness summaries, home and put them in a box because they were afraid that Nixon's goons would ransack the office.

And that sort of ended up happening.

And she says to me something like, I don't know how smartly I thought through my options.

And it may have been on the borderline of what we call Rule 6E, which is like the grand jury secrecy rules.

She said, but we felt like in order to protect our investigation, we had to do that.

And I love the historical echoes in the book because if you fast forward 40-some years, the Mueller team did almost the same thing, higher tech.

But they, you know, I talked to FBI agents and prosecutors on that team.

They said, we made a point of backing up, like you back up your files every day to an off-site server because we were worried that, same thing, that Trump's people would come in and take over and shut down the office.

So when you see those echoes,

I think it tells us something about sort of the common instinct for self-preservation that both presidents and prosecutors have.

There's got to be some like Kinkos in Arlington, Virginia, where they know every government secret from like 1975 until people stop photocopying 2005 or something.

Can I tell you something along those lines, Nate?

So there's a moment in here when I'm talking about the star report, which I don't know how old you all are, but that, right?

This is the big Ken Star report.

And I was trying to explain to people, A, how this is.

Maybe 50 Shades of Gray.

Right, exactly.

A, how this broke was the first real massive internet moment.

I mean, I remember, I was in law school at the time.

I remember download, download, download.

Things were crashing, right?

And there's all these articles about like, can this new thing called the internet support this?

But at one point, I wrote, however many copies borders ordered.

Borders, you guys both know, was the big bookstore, right?

Spent half our lives in borders as kids.

And

one of my copy editors, a much younger person, said, you're going to have to drop a parenthetical explaining what that is.

So there is a section there where I say borders, and it's sad, but I had to do it.

Borders parens, which used to be a major national bookstore.

So

Kinkos, I think, would fall into the same category, Nate.

I think the Star Report was a really, you know, as I kind of told you before we started taping, my first, I was still in, I think, elementary school, you know, when this was all happening.

And it's my first political memory, like my first big political memory was, you know, Monica Lewinsky and Star and all of this.

I didn't read it.

I was too little.

You know,

it was a little too titillating for the likes of me.

But, you know, it was a really, I think, interesting moment where a lot of people's political consciousness were awakened, like, especially people who hadn't lived through Watergate, right?

Who hadn't kind of seen the start of this.

So I'd love to just kind of talk through that as just like a big historical moment and what it meant.

for how the office went forward.

Because as you point out, Clinton was the last one to renew the law that was then take, you know, was then used to try to take him down.

Immediately boomerang.

Yeah.

Yeah.

Ken Starr killed the independent council law.

I mean, the independent council law was passed after Watergate signed by Jimmy Carter, and it died a

sunset.

Congress let it die in 99, but it would come up every five or ten years for renewal.

And basically, every president didn't like it.

Ronald Reagan's DOJ concluded that it was unconstitutional, but he was like politically, he felt he had no choice.

He had to sign it.

When it came up for the final reauthorization in 94, George H.W.

Bush, the father, who Clinton had just defeated in the 92 election, counseled him like as a fellow president, you're not going to want to sign this thing.

But Clinton also felt he had no choice, signs it, and then it becomes the bane of his existence.

And, you know, that is such a memorable moment.

I mean, I was in law school.

People may not realize how much on the razor's edge we were.

I mean, there was a moment when Bill Clinton calls a press conference and we didn't know.

Is he resigning?

Or is Al Gore going to be president by tonight?

And,

you know, I talk about how some of the indelible lines, I give the backstory, right?

The two probably most famous lines or infamous lines from that whole thing are, I did not have sexual relations with that woman, Miss Lewis.

That's my Clinton.

And the other one is, it depends on what the meaning of is is.

And I give the backstory on both of them.

I won't give it all away, but I'll just tell you that one of the people I interviewed was the prosecutor.

So Ken Starr passed away a few years ago, but His number two was a guy named Saul Weisenberg, who asked the question that Bill Clinton answered.

It depends on what the meaning of is is.

I also talked to Bill Clinton's Clinton's lawyers who were and the White House lawyers who were by his side, but I asked Weisenberg, I said, how did you feel when he gave you that answer?

And Weisenberg said he was very honest.

He goes, look, I'll tell you the truth.

That was a four-hour timeframe that we had.

That was about three hours in.

And up to that point, Clinton was kicking our ass.

We didn't get anything out of him.

He looked in control.

He goes, but when he gave that answer, he looked so smarmy.

And what he said was so ridiculous.

He was a former DOJ lawyer.

He said, if I was trying this case to a jury, I would have turned to them and been like, can you believe this guy?

And of course, that's, you know, that's the moment that lives on from that.

That's a precipitous moment in history right there.

When did this all kind of

become a partisan hellscape, in your opinion, Ellie?

I mean, how much it was

during the Clinton years, or has it just been upping the ante one presidency at a time?

Yeah, it's always been somewhat, I don't know if partisan in the early days is quite the right word, but it's always been a battle.

I mean, everyone's always circled the wagons and geared up for survival.

Watergate, when you look back at it, is shockingly non-partisan, right?

Like people within DOJ stood up to him.

I have scenes in there on the Sunday morning after the Saturday Night Massacre where the team is wondering, have we all been fired?

And by the way, for our listeners who don't know, Saturday Night Massacre.

That was when Nixon fired the special counsel and then the Attorney General and Deputy Attorney General resigned rather than fire.

So the three top officials were all gone.

And I talked to the players.

They came in Sunday morning and they didn't know.

There was actually actually an erroneous report in the New York Times that they had all been fired, but they hadn't.

And Archibald Cox comes in and says to them, basically, you keep doing this work.

Don't give him what he wants.

Two weeks later, there's a new special prosecutor and ends up, you know, ends up resulting in Nixon's resignation.

I think it got really ugly.

You know, Clinton, I think Clinton can star is when people really took their sides and people really dug in.

And we've seen that certainly with the Jack Smith-Trump case, both sides, certainly with the Joe Biden, Robert Hurr classified documents case.

I mean, I think everything since Clinton has been pretty politicized.

Maybe not the scooter Libby Pat Fitzgerald case.

That one was, George Bush was the president.

He was like, he was fairly supportive of that investigation happening, but everything else has become just partisan warfare since then.

That's interesting that you would put it that in that modern era, because, you know, in the book, when you kind of give our whiskey scandal that we started the show with,

you say that that was really the playbook that's kind of still being used to this day, right that that we've had the bones of this for centuries yeah yeah i mean i mean the moves that were made like why does grant appoint a special counsel because he feels political pressure because his opponent says i found this scandal and grant goes well hold on we're going to take care of it we're going to appoint an independent guy that guy goes out he starts making headway when he gets too close grant fires grant actually tries to do a move that nixon did a century later grant tries to have a military tribunal take over nixon tried to have the CIA take over, but both of them failed.

And ultimately, it becomes finger-pointing both ways.

And the media says he's, you know, he's covering up.

And Grant says the media is, I mean, he might as well have called it fake news.

He didn't use that phrase, but he all but says that in 1870s speak.

So

I think it's important to understand, you know, people who've only been really following this since Mueller think it's brand new.

What's happening now, Trump 2.0 is brand new.

But really from Grant through the Jack Smith case, there's a lot of connective tissue.

Yeah,

I always try to emphasize when people are understanding the current very polarized moment in politics that, like,

you know,

maybe my generation of political reporters, or maybe one generation older than me, probably, right?

But not two generations, kind of grew up in like the lore of post-World War II elections, right?

Yeah.

The 50s, the 60s, the 70s.

And if you look historically, this is a time of very low polarization relative to the baseline and a time when the 50s in particular, you know, the United States is doing very well.

We had a common enemy we defeated in World War II.

You have this baby boom, this prosperity boom, right?

We have the space race, right?

Things are looking up.

Not so great if you're a minority in the 1950s or a woman or gay or whatever else, right?

But like, but, you know, people, society had less conflict than it does now.

And you go before that to the turn of the previous century, we had a civil war, right?

Partisanship is kind of the norm.

But Ellie, but you do think that like it's not just MSNBC

exaggeration when people say what Trump is doing is

much worse, half an order of magnitude worse or an order of magnitude worse than we've seen before.

I often disagree.

with MSNBC, but I do think it's accurate to say that about what's happening right now, this part, because what's different is

every president up until now, and I include Trump one in that every president up until now, has at least understood there does need to be some sort of outside prosecutorial mechanism, whether they're investigating the president or someone around him, or maybe they're kind of quiet.

There wasn't much of this during the Bush or Obama eras,

but that I do need to respect this.

I do need to let it go.

Look, every president or most presidents who've been involved in these cases have tried to undermine them or obstruct them to some degree.

But Trump has just come in now and said, oh, we're not even going down that road.

There will be no inward looking investigation at me, Donald Trump, or anyone around me.

And more to the point, and this gets to the title, anyone who looked at me in the past is now getting investigated.

It's when you come at the king.

And also, Nate, to your other point, you know, I spoke to Carl Bernstein for this book, who I know through CNN.

Of course, Carl was a legendary Washington Post reporter who helped break the whole Watergate story.

And I said, how did this take so long to play out?

Like, Nixon survived 10 months after that saturday night massacre during the 72 election people may not realize this watergate break-in happened before that and carl had already linked a check from the burglars to a nixon campaign and nixon one wins you know 49 states and 500 something uh electoral votes in 72.

and i said to carl like how could this be and he sort of was he's great but he was sort of like okay young man let me explain something to you but he basically said things were different then he said by and large if the president denied something you didn't automatically take him at his word but the public was much more likely to give him the benefit of the doubt as was congress and he said things just moved slower back then like it wasn't this 24 hour boom boom news culture social media so you know but when i sat down the one point in the book where i sort of cop out and just have a timeline is watergate because it's so confusing and i think i just say boom boom this happened this happened this happened And then we do analysis of, but like, you have to have that because I cannot believe how long it took for that to play out.

I can't believe how long he survived politically.

Yeah.

So, you know,

bridging those kind of two things together,

kind of from the Watergate era to Night's question just now,

and how different Trump 2.0 is, because you write in the book that he, you know, Trump 1.0, the original, hadn't, quote, fully grasped the levers of executive power.

Yeah.

End quote.

And now he definitely has, right?

The second time around, he knows.

Now he knows you just flip it off.

And it's like, okay, yeah.

Exactly.

That's what you do to that.

And I was actually curious, under kind of the current regime, right?

What has happened right now and kind of the really weird definition of presidential immunity, kind of all of that.

Do we think that all of the cases that you write about in the book, including Watergate, could they happen today?

Right.

Like if something like that happened, if we had a Watergate level scandal right now, the realistic answer happens today, you know, September of 2025, no, because Donald Trump's president and Pam Bondi's AG.

And I mean, if you want, if you, if you had any question about that, to me, there was a sort of moment of truth with Pam Bondi a few months ago when the signal scandal broke out, right?

Mike Waltz and others were using this non-secure app and discussing military plans.

And I point out in the book, every time we've had any sort of classified documents issued before, it's been at least an investigation, Hillary Clinton's email, Joe Biden, or an investigation and an indictment.

Donald Trump was indicted for that.

And Pam Bondi comes out three days after, no investigation and says, nope, nothing to see here.

We're not investigating.

And you all should be focused on the success of the military strike more than anything else.

That was it.

What would have happened in almost any prior administration is DOJ would have convened an investigation.

We're taking this very seriously.

And six months later, maybe they would have issued some report.

Maybe they would have found someone needed to be indicted.

But here, Pam Bondi was just slammed the door before it could even start.

Now, I don't think it has to be this way forever.

And essentially, the pitch I make in the book is: whatever president comes next, 48, whoever that is,

you, sir or ma'am, are going to find that a lot of guardrails have been kicked down.

And it's going to be mighty tempting for you to leave them down because who wants ethics?

Who wants restrictions on private profits?

Who wants special counsel?

Who wants inspectors general?

But this one is too important.

And if we just let this one stay dead, then we're going to have big problems down the line.

And we'll be back right after this.

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How bad was Watergate, right?

Because we hear about like a quarterback or a baseball player, you know, Reggie Jackson hit whatever 47 home runs in 1968 or whatever.

Are we doing like era inflation?

Yeah, I mean, like, if Watergate happened today,

would it be...

It's a good, yeah, that's a good question.

I mean, let's think about it.

So

let's use a real life example.

Who do you want to be the bad guys?

Democrats or Republicans?

Let's make Democrats.

Let's say Democrats.

Let's flip it.

Let's flip it.

If it turned out that a group of burglars had broken into the RNC or hacked into an RNC server and downloaded a bunch of stuff, and then that was tied back to, let's say, Joe Biden,

and it turned out Biden knew about it and was in on a cover-up.

That'd be, I think that'd be pretty bad.

I mean, right?

But then again, I mean, if you look at some of the stuff, Trump, I mean, January 6th is hard to compare to anything, you know, the possession of classified documents, but I think it's pretty bad.

Like, I don't, you know, I look back at Watergate and see it as this had to happen.

I look back at Ken Starr and think that was an out-of-control prosecutor.

And I think that's, I'm certainly not alone with that.

Many, many Republicans, I mean, Clinton left office in 01, Nate, this is up your alley with a 66% Gallup approval rating, in large part because of backlash over the ridiculous impeachment.

And by the way, I talked in the book, the prosecutor Bob Ray, who replaced Ken Starr, comes in at the end and he has the unfortunate, the impeachment's already over, the failed impeachment he's got to decide will you indict bill clinton and i said to him bob you you got to be kidding me there's no way you're going to indict in 2001 bill clinton for for he you'll never get a single vote to convict him and bob basically 99 of the way in the book says we had all the pieces in place if he didn't reach an agreement with us we would do what we had to do now he ended up paying a fine 25 000 and making a sort of Clintonian statement about misleading the American public and giving up his bar license.

But I mean, I'm shocked by that.

But Bob said, I'm glad that it didn't come to that.

I'm glad he took the deal.

And Bob said, by the way, if we had indicted him, we could have had a situation where we had a president sitting in the dock of a criminal courtroom eight months later, nine months later when 9-11 happens.

And that would have been, can you imagine how horrible that would have been?

So, you know, it's crazy to me to think that he might have indicted Clinton.

But if Clinton had said, I'm not giving an inch, it's pretty clear that he would have been indicted.

He would have been acquitted, but he would have been indicted.

Yeah,

it's really interesting to me when, you know, when reading this book, and obviously there were some cases that I knew and others that I hadn't heard of before.

I mean, it's no, listen, nobody knows all these.

But,

you know, the this wide spectrum of seriousness is actually quite eye-opening, right?

You have, you have things that you're like, okay, like, I understand.

And then you have things that just seem petty.

And you're like, why are we investigating this?

And then you realize, and you point this out in the book, that the blame isn't just with the special prosecutor, you know, it's with people like Reno who say, yes, you know, we should, we should do this.

Expand into Monica Lewinsky.

Expand, yeah, into Lewinsky.

And they're just some, some, the scale of it seems totally off.

And I feel like maybe we wouldn't be where we are today if it had been more uniformly applied.

Well, I think it needs to be applied judiciously.

I mean, some of these cases where special counsels are appointed are preposterous.

The first, this is one of my favorite facts.

The first ever independent counsel.

So Watergate happens.

We get this new law in 78.

The first ever special counsel was appointed to, or independent counsel, was appointed to investigate alleged cocaine use by a White House, a White House advisor at Studio 54 in Manhattan.

I mean, what could be more disco era than that?

And, you know, the main guy they talked to was some Johnny C., some drug guy at Studio 54 who was like, I think I might might have given some guy a two and of course that didn't ever get charged you know they i mean a lot of times the right move is you don't charge it but do we know yeah i mean i think

do we know uh he was the chief of staff what's his name um hamilton jordan it's spelled jordan j-o-r-d-a-n but it's pronounced jordan as i learned during my audio book um so it was the chief of staff to the white house in fact the second investigation was also a guy using coke i mean it couldn't be more 70s but i think i think the bar has been raised and i think people on both sides politicians generally now understand we're not going to appoint special counsel on piddling matters.

Although you could look at Hunter Biden, that prosecutor, and I talked to Hunter's team, his lawyer, Abby Lowell, his lawyer, who ferociously objected to this.

It was a gun and tax case on an private individual.

And I think there's a lot of criticism to be had of Merrick Garland for agreeing to turn that prosecutor, David Weiss, from a regular DOJ prosecutor.

Then he decides he wants to be special counsel.

And Garland says, sure.

But I think that was a mistake.

And I think, I think you do have to look at what's the seriousness of the charges here.

So

do you think Democrats came and missed with Trump?

Did they not go hard enough on the best cases?

So the short answer is yes.

And the person who I lay most blame at in the book is Merrick Garland, because

the first sentence of the Jack Smith chapter is, Jack Smith never had a chance.

Because by the time Merrick Garland wastes two years and appoints Jack Smith special counsel in November of 2022, almost two years.

I wrote in my prior book, which came out in mid-2022, it's already too late.

I quoted the movie Searching for Bobby Fisher, which I don't know if you guys see a great movie, right?

Chess Prodigy movie.

Yep.

And the kid says to his opponent, You've already lost, you just don't know it yet.

And it turned out that was correct.

There was never any way, if you know how long federal prosecutions take, if you knew, which we did, because I wrote about it in my last book, they were going to have to deal with the immunity issue.

It was going to go to the Supreme Court.

There was never any way Jack Smith was going to get his case done,

tried before the 2024 election.

Now, if Trump had lost, okay, you know, you try him later.

But you always knew there was at least a 50-50 chance Trump would win.

So they took that risk and they lost.

But I think there's, there's a lot of discussion in here about why Merrick Garland, you know, the fact that Merrick Garland took too long.

And look, does that justify retribution?

Absolutely not.

But Trump has now, you know, they shot and missed and Trump's now coming back at them.

And they're not the first ones.

So one of the things that I, you know, I was noting as I went through the book was, you know, a lot of the people who came at the king missed.

Right.

Yes.

And missed the mark.

Yes.

And some decided not to take the shot.

I mean, Robert Hur with Joe Biden is a good example.

You know, everyone remembers that Robert Hurr said, oh, Biden's an elderly man with a faulty memory, blah, blah, blah.

That was the big.

But what everyone kind of missed is that Robert Hurr found that Joe Biden knew he had classified documents.

Like Joe Biden denied that for years.

Anything I I had was inadvertent, accidental, accidental.

But there's a tape, we find out, of Joe Biden saying to his ghostwriter, I just found all the classified stuff downstairs, meaning in his private office.

So like, I sort of said, look, Robert Hurr could have, I think he did the right thing by passing on this, but he could have written a report that said, while I cannot indict the sitting president under long-standing DOJ policy, I talk about that in the book, I do find that the evidence would have been sufficient to uphold a criminal charge.

There is a criminal charge for knowingly

mishandling classified documents.

And really, that statement by Robert Hurr is offered to explain his calculation on the state of mind, the intent.

He says, well, it would have been hard to show a jury that he was fully aware, fully remembered.

He would have been sympathetic to a jury.

I mean, but look, I talked to Bob Bauer, who's Biden's lawyer, who was fiercely critical of her, said he went too far, said he put political, you know, stuff he shouldn't have put in his report.

So I kind of leave some of this to the reader.

I mean, I don't, I will let people draw their own conclusions.

Some of them I think there's a definitive conclusion to be drawn, but others I think, you know, it depends how you see it.

So sometimes, you know, look, I make a point of saying this in the book, and I say this as someone who was a prosecutor for a long time.

You can't just judge prosecutors on like what's their stats, like how many, how many people did you ring up here?

Because sometimes the right move, the better move and the right move is to exercise your discretion against a charge.

And I think reasonable minds can differ on the Biden case, but I think it's hard to say her was wrong.

What do prosecutors not understand about politics?

That's a great question.

I want to say everything.

I mean, look, if you had talked to me six years ago, let's say I've been doing media stuff for seven years now.

And early in my media career, I was fresh out of 14 years of being a prosecutor.

And I have this very like purist notion of prosecutors.

Like what we do, especially at DOJ, is pure.

It is uninfected by politics.

It is separate, apart, and probably above from politics.

The reality, however, is prosecution is part of our, it exists within our political system.

I mean, why do we have DOJ and an attorney general and an executive branch?

It's from the Constitution.

We all spring from the same document.

And I think it's a bit naive.

to say that like prosecutors are just, you know,

are white knights and never aware of politics.

I mean, look, this is part of the complexity of Jack Smith.

Like, did he do his job in a straightforward, aggressive way?

Yes.

But there's no question he was rushing like mad to get Trump tried before the 24 election.

That's an uncomfortable intersection of politics and prosecution.

And people who, you know,

people sort of defended Jack Smith reflexively, I think, because like there was a thing for a while of anyone who's going after Trump is good by me.

I don't buy into that, but Jack Smith initially demanded a trial date for Trump.

five months after the indictment on a case with 13 million pages of discovery.

That is impossible impossible and unheard of.

I actually looked up the data.

The average case in that court in D.C., federal court, and I'm just talking drug and gun rips mostly, took 28 months.

The defendant got 28 months to prep that, two years and change.

And Jack Smith says, here we have like the most complex, most important case in U.S.

history, and he needs to go to trial in five months.

And I talked to Trump's legal team

and they said correctly, like, there's no physical way we could have gone through the evidence in that time.

And the only reason he wasn't able to do it was because the immunity decision decision came in and everything got put on hold.

And then Trump won.

So look,

I understand Jack Smith, I think, has the closest to my prosecutorial background of like C target, attack target.

But I also think you can't tell me that Jack Smith was unaware of the looming election and trying to get his case tried before the election.

There's no rational observer who could say that he had no idea and didn't care.

Of course he cared.

Yeah.

So we have a lot of

important questions about what should happen

going forward.

But I do have to say that I did one one piece of outside research that I was inspired to do based on your book.

And you included a detail about Patrick Fitzgerald, who was the special counsel who was put in charge of investigating the Bush administration for leaking the identity of a CIA agent.

That's not what I took away from that chapter.

What I took away was that he was one of people's 50 sexiest men alive of 2005.

Yes, sexiest man alive.

He wasn't the but he was on the list.

No, Matthew Matthew McConaughey that year was the sexiest man alive.

Yes, just edged him out.

And I was like, what the fuck?

Like, who is this guy?

So I looked him up and my answer is, what the fuck?

Okay.

So

my editor, Maria, one of my fact checkers and editors, who is a woman of about your age,

dropped a note in the manuscript saying, holy shit, did you just disappoint me?

Because

Pat Fitzgerald, she did the same thing as you.

She Googled him.

Now, Pat Fitzgerald's.

Pat Fitzgerald's, he's a good-looking guy, guy, right?

Like, he's above average.

He's maybe above average.

I don't know, but 50 sexiest men alive.

Like, what was he doing as a special prosecutor that made him so like what?

What a funny moment in history.

Number one.

Number one,

that is, you know, objectively, he's the only special counsel ever named sexiest anything.

I've never seen, you know, the guy from the whiskey ring was not named sexiest anything by the New York Herald.

Number two,

I think it's actually a good reminder of like, I remember because I had just started at DOJ.

I started in 04 and this investigation went crazy in 05, 06, 07.

And Fitzgerald had come out of the office I had started in.

I don't know him.

I've never met him.

He didn't talk to me because he's sort of retired.

He lives like in, I don't want to say where, but he lives a quiet life out of the law now.

And he very politely declined.

But everyone at the office I worked at worshiped this guy, loved him.

He's hilarious.

He's brilliant.

And I think just some, he was the guy, he was the jack smith the robert mueller of 2005 six and you know like that kind of iconography or whatever you know i talk about that with mueller right remember all the mueller action figures and memes and he's gonna get you and all this you know mueller's team made a really interesting point i caught i talked to a couple of the prosecutors they said people who were spreading that stuff mueller she wrote and you know mueller's gonna do it justice and by the way they did the same thing the other side with john durham and they did the same thing with jack smith these guys said to me that was, first of all, completely a disservice to Robert Mueller, the man, who was an American hero.

The guy was shot in Vietnam through his leg and returned.

He was a recipient of a Purple Heart.

He's an FBI director during 9-11.

He hated that crap.

He hated being.

you know, a Twitter meme for liberals.

And they also say it didn't help us, by the way, because it gave the other side fuel to say, look, they're coming after us.

They've put this attack dog on us.

And so, as much as some liberals had fun with their Mueller memes, Mueller's own team hated it.

And they talk about that in the book.

No, that's definitely.

Sorry about Pat Fitzgerald, by the way.

I still maintain he's pretty handsome.

It's okay.

It's okay.

But, you know,

aren't you happy that you've inspired independent historical research on the part of your readers?

Yes, I hope people searches for Pat Fitzgerald spike right about now because that's a good sign.

And we'll be right back after this break.

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Who would you want to talk to that you weren't able to pin down?

And what would you ask them?

That's a great question.

The guy I wanted to talk to most was Jim Comey, who takes a lot of heat in this book.

Now, Jim Comey, again, I started at the SDNY five months, four months, something like that after Jim Comey left.

And I say in the book, when I got there, everyone who was already there loved and worshiped Comey.

They, you know, Comey's like six, seven.

I've met him.

I've had nice conversations with him in green rooms and stuff.

But Comey declined to speak with me because we all know how shy Jim Comey is about the meeting.

That's a joke.

But look, Jim Comey takes a lot of shit in this book, and I think he deserves it.

The incident with Hillary Clinton's email that we talked about before, Nate, that you looked into whether it may have flipped the election, that is the perfect example of why we need rules.

Because what happened was Loretta Lynch has her meeting on the tarmac with Bill Clinton.

They both say nothing inappropriate

was discussed, but Loretta Lynch herself said that meeting cast a shadow, that's her word, over the investigation.

She should, at that point, have appointed a special counsel.

It was actually briefly considered, but she doesn't.

Instead, she says, I'm going to just defer to the FBI, which is not the way it works.

The AG is in charge.

Well, what do you do?

What happens when Jim Comey is told, I'm going to defer to you?

He runs wild.

He doesn't abide by any of the rules or regulations.

He does whatever he wants.

And that results in two announcements shortly before the election.

And since then, I don't think anybody defends Comey other than himself.

I mean, three different attorneys general of both parties,

a Democrat and two Republicans, have publicly said that what Jim Comey did was absolutely wrong, violated DOJ norms.

And so, if you want to know what happens when we try to investigate the president, but we make it up as we go along, look at Jim Comey.

So, he didn't want to talk to me.

I wish he would have.

You get this, these things in like

if you're watching the NFL or NHL or NBA, whatever, right?

Where like the decisions that officials make are not totally unbiased with respect to the game score and the impact on the outcome and the, and the, and the star power of the athletes involved, right?

And they'll say, well, look, we're trying to manage the game.

It's an entertainment product.

And, like, yeah, if you're calling some ticky-tack foul on a play that determines the Super Bowl, then that's not good game.

As an Eagles fan, that hurts.

But yeah, that's the first Chief Super Bowl, which was bullshit.

But God, yeah.

You guys are spoiled now.

I know we're fine.

Kansas City, yes, I'm not complaining, but yeah.

I mean,

is a better prosecutor unaware of politics or not, right?

Like, let's say you have something that's going to.

Again, I don't buy into this idea of like the prosecutor locked in a vacuum and just looking at the DOJ justice manual.

Like, I think a good prosecutor has to be aware of what the politics are, especially in these special counsel cases, because you're going to have the White House involved.

You're going to be requesting information from the White House.

Congress may get involved, the media.

But I think you have to keep your head down.

And I mean, it sounds Pollyanna-ish maybe, and do your best to do the job without regard to the certainly, not the, okay, let me put it this way.

You have to be aware of and account for the politics, but you should never be playing a partisan role.

There's a difference there, right?

You exist in a political universe.

But I think when it gets to a point where people are with some credibility saying, now that's something that wouldn't ordinarily be done, now you're potentially crossing the line into partisanship.

So I think that's a good moment to kind of turn to your recommendations, right?

Which you kind of have some at the end of the book for kind of going forward now that this office has been like completely gutted, right?

And we don't even know what's going on, we basically need to start over.

What would your ideal look like?

How do we come back from where we are now?

How do we create an office of whatever we call it, independent counsel, special, whatever it is?

What do we do so that we have investigations that are as impartial, you know, with all the caveats as possible, and that actually

keep people to account who need to be held to account.

Yeah.

So first of all, if you look at history, every quarter century or so, we sort of revamp this, right?

We did one in the 70s, one in the 90s.

Now here we are.

And there is no perfect system.

There's no way I'm, I do lay out a system at the end.

There's no way I would tell you it's infallible or every, you know, there are, there are certainly arguments against it.

But my first argument is some system is better than no system.

Just look at Jim Comey.

Again, if you want to freestyle all these, get ready for more Comeys.

Second of all, the crux of what, and in coming up with this proposal, A, I looked at scholarly articles and law review articles and various other legislative proposals, but I also, everyone I talked to for this book, all the prosecutors, defense lawyers, White House officials, you name it, I said,

how did the rules work for you?

What rule do you wish had been different?

Which ones were effective?

The number one thing I think we need is a semi-permanent special counsel within DOJ, nominated by the president, confirmed by the Senate to give some political.

Look, there has to be some accountability.

You can't just have a super powerful prosecutor.

The AG and all the U.S.

attorneys have to be nominated and confirmed.

This person has the same powers, if not more, and so needs to have that political legitimacy to it,

needs to have a set term of years, sort of like the FBI director serves for five years, although now Trump just fires them at will.

But for a long time, it was like 10 years, FBI director, I should say.

But, you know, you just, you inherited the FBI, Mueller carried over over various administrations.

And the person needs a semi-permanent staff of prosecutors, analysts, investigators.

So you don't have this scenario of Ken Starr, Bill Clinton, go, go.

You know, Jack Smith, Donald Trump, go.

So you are looking at various things at once.

But, you know, one of the concerns is, aren't you going to incentivize this person to always be breathing down the president's neck?

My answer is not if you have the right person.

I mean, not if you have a person who understands prosecutorial restraint.

And, you know, so look, we rely on the people to an extent.

But I also think this person needs more, a higher level of protection against firing.

I think we need to more carefully vet our people who are on that team for any outward

political biases.

There have been people on these teams who have been donors and been to campaign parties.

I think that's disastrous.

I talk about one of Mueller's team members who was at the Hillary Clinton, what was supposed to be victory party, but was not and has donated.

And he has defended himself by saying, Well, but I didn't make any, I didn't get anything wrong, though.

Whatever my personal beliefs, I was able to put them aside.

And I said, Yeah, but the other people on the team said they had to stop you a couple of times for doing things that were inappropriate.

And I also said, This person wouldn't talk to me either, but I also used a baseball analogy.

I said, this would be like if in the seventh game of the World Series, the home plate, it was Yankees and Dodgers.

I should have used a Phillies, Astros, or something, but Yankees, Dodgers.

I said, What if the home plate umpire ended ended up with a high game score?

Like, you know, the computer said he did a good job, but on his Instagram page, he was wearing a Dodgers hat every day.

Like, would Yankees fans be expected to accept that guy?

Would the general public be expected to accept that guy?

So I think we need to vet for political bias, you know, donations and public statements, that kind of thing.

It's not perfect, but I do think, I do reject the idea that, like, I'm just going to throw my hands up and say, this is all broken.

Because that's not dealing with the problem.

That's just, that's just washing your hands of it.

Ellie, how much can be done via legislation as opposed to requiring constitutional changes?

So you can do all of this basically, I think, by legislation.

I'm not sure, you know, the current Congress certainly wouldn't do it.

And I'm not sure any, but the real fallback, option A is legislation.

Option B is DOJ can pass its own regs.

The current special counsel, there is no law.

It's just DOJ regs, which are passed by DOJ itself.

So those are the fallbacks, I think.

And by the way, there would be a constitutional challenge.

There have been over time.

The systems have always withstood it, but that would happen as well.

So, you know, for people who, you know, read this, who kind of get acquainted with the history, who feel your frustration about the current moment and kind of take it to heart, what's kind of the...

big message that you want people to kind of take away from this?

The big message is we have been grappling with this problem for a long time, but it's a problem we have to grapple with.

And as much as the prior investigations have been highly imperfect, and a lot of the book is about how flawed some of these investigations were, we need this mechanism.

It's a crucial check on the presidency.

And although Donald Trump will be, you know, it will go dormant during the next three years,

it can come back and it needs to come back because otherwise we're going to lose a key check on not just presidential power, but runaway executive branch power as a whole.

So at the end of the day, are you an optimist that that will happen, or are you a pessimist?

I tend to be an optimist.

I mean, look, I've been in the media for seven years.

I've seen all sorts of crazy stuff happen, but I do believe in our institutions.

I do believe in our laws.

I don't think they're perfect, but I reject the hyperbolic.

You know, I've heard people say we'll never have another election in 2028.

Trump's going to run again.

I've always rejected that.

I don't think that's going to happen.

I don't think that's, I don't think he wants to do that.

I do believe our laws and our constitution are sturdy enough.

They're imperfect, but I think they're sturdy enough.

They've stood up for 250 years.

And I think if we give them thought,

they'll continue to stand up.

Well, I'm very happy to hear that.

Thank you so much for coming on and sharing your wisdom and your optimism with us.

Congrats again on the release of your new book, When You Come at the King.

Thanks very much, guys.

I appreciate it.

It was great talking to you.

Let us know what you think of the show.

Reach out to us at riskybusiness at pushkin.fm.

Risky Business is hosted by me, Maria Kanakova.

And by me, Nate Silver.

The show is a co-production of Pushkin Industries and iHeartMedia.

This episode was produced by Isaac Carter.

Our associate producer is Sonia Gerwit.

Lydia Jean Kott and Daphne Chen are our editors.

And our executive producer is Jacob Goldstein.

Mixing by Sarah Bruguer.

If you like the show, please rate and review us so other people can find us too.

But once again, only if you like us.

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Thanks for tuning in.

This is Justin Richmond, host of Broken Record.

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