Preet Bharara was the United States attorney for the Southern District of New York until 2017. During his time there, he earned a reputation as a “crusader prosecutor” against public corruption and Wall Street crime. Now, he serves as the talk show host of the podcast “Stay Tuned with Preet Bharara,” where he analyzes current news events related to politics and justice.
Harvard Political Review: Of all the different allegations that have been brought out against the president, does it surprise you that the Ukraine call is what finally pushed the call for impeachment?
Preet Bharara: I’m not surprised because we’ve had this history of two-plus years of investigation regarding election interference that Trump and his associates have welcomed. I guess what’s surprising is that given the Mueller investigation faded out without an ultimate consensus in favor of impeachment, how could it be that all of a sudden the Ukraine scandal launches us over that threshold? And I guess my thought on that is on the one hand, the Ukraine piece on its own is readily understandable. It’s pretty simple for people to get. It seems like if the allegations are correct, it’s a clear abuse of power, it’s the president of the United States extorting the leader of a foreign government for the purpose of benefiting himself in a political election. But I think that standing alone, it’s in part a function of its following two-and-a-half-years of putting the country through this issue of interference in a political election. So I think it’s a combination of both things and people thought, how much of a recidivist can you be? Literally on July 24th of this year, Mueller testified about all of his findings and when that didn’t go as well as I think some people wanted and seemed to benefit the president of the United States, the very next day, July 25th, is when he called the president of Ukraine and essentially conditioned military aid on the launching of the investigation. And even more importantly, the announcement of that investigation into his political rival, Joe Biden, and his son. And so I think the combination of the first thing followed by the second thing and a feeling that you have to hold someone accountable otherwise he’s going to do this over and over again is what led very quickly to the impeachment proceedings.
HPR: Do you see this as the greatest abuse of power so far or do you just see this as the combination of a drawing out of different abuses?
PB: Oh, I don’t know if it’s the greatest abuse of power. I think for impeachment to have resonance with the public, it needs to be clear, and it needs to be understandable. It needs to be something that goes to the core of what the founders intended: making sure that the president was not beyond reproach. And we actually have not had a precedent of involvement in this kind of foreign entanglement. On the one hand, some of the president’s allies will say there’s never been an impeachment proceeding that has flowed from this kind of conduct. It’s so unfathomable that the conduct that provokes impeachment is of this nature. The founders repeatedly were concerned about the influence of foreigners and entanglements between the president of the United States and foreign governments, but we’ve never had a situation like that. So in some ways, this was arguably more egregious than the other sets of circumstances that have provided space for impeachment in the past.
HPR: You talked a little bit before about the allies and the enemies of the president. A recent poll taken by FiveThirtyEight showed that as of today, November 17th, while 81.4 percent of Democrats are in favor of impeachment, only 10.7 percent of Republicans can say the same. So what is your case to Republicans for making this a bipartisan issue? What would you tell them if you could talk to them right now?
PB: Well, I would say vote based on principle, not party. Vote based on conscience, not political interest. You know, it is not a great thing — I’ve said this before — that the full House vote in favor of the impeachment inquiry was very, very partisan. Now on the one hand, you could say that the results of the investigation are arguable, that the allegations and the evidence don’t warrant impeachment. On the other hand, and I think it is more persuasive, is that it’s such a polarized time when the president has weaponized his platform. It’s possible to also argue that lots of people would be in favor of the impeachment inquiry but fear retaliation from this president. At the end of the day, for the public to rally behind it, I think there needs to be a bipartisan belief that the president has committed some sort of high crime or misdemeanor. We don’t have that now, but that could change based on what other evidence comes out. As we’re recording this, we have had a number of depositions released. We’ve had a number of public hearings, three witnesses have testified in the last week, and every single one of them moves the needle a little bit. Now people on the president’s side are changing their arguments in favor of ending the inquiry or ignoring the inquiry. I mean, the problem here is that the conviction trial in the Senate, if there’s impeachment in the House, is not going to be like a normal trial. Every Senator who acts as a jury member in the ultimate impeachment trial is in some way compromised, with some interest for or against the president. Most importantly, I think that lots and lots of Republicans know that they will be retaliated against politically and reputationally and perhaps financially if they say one word that is open-minded about the investigation. I wish that they would consider the facts and the evidence rather than worrying about retaliation from the president.
HPR: On this topic of political retaliation, why do you think that right now, fears over this retaliation are so much stronger than they ever could have been in the past? Why wouldn’t this fear of political retaliation have taken hold in 1974 or 1998? Why in 2019?
PB: I think two things. One is you have a particular platform in social media where a president has the ability to lash out immediately. Second and more importantly, you have a person in that office who is more willing than any prior president in impeachment jeopardy, including more recently Nixon and Clinton, who’s willing to attack and to abuse and to intimidate. I mean, literally you had a case in point this past week on Friday — in the middle of ambassador Jovanovich’s testimony, the president of the United States took advantage of those two changed circumstances. One, the ability to get out to sixteen-plus million followers and every press outlet in the world with a tweet. We didn’t have Twitter back in 1998 or 1974, and he was able not only to use that platform in real time during the actual unfolding of the testimony of the former ambassador to Ukraine, but also what was the content of that tweet? Well, a lot of people think it was an intimidation. It was attacking a witness who was testifying under subpoena before a duly authorized House impeachment inquiry. And so everyone sees that. People see that and future witnesses see what’s going to happen there. And it’s not just with respect to witnesses, it’s also with respect to members of the House and with respect to members of the Senate. The president will attack in a very direct way in a form and in a fashion and with an intensity that prior presidents did not have. People around the president of the United States back in 1998, around president Clinton, clearly were unhappy about the unraveling impeachment against him, but the level of attack against opponents was just not quite the same. The last point on that is a lot of Democrats came to the defense of Bill Clinton in 1998 by taking a compromise approach by saying, “Look, the relationship you had was not right. The falsity he told about their relationship was not right. It was perhaps even something for which the president should be discarded once he leaves office. So we’re not condoning him. We’re not saying it’s perfect and beautiful. We’re saying it’s bad. We’re saying it’s wrong. But our argument is that it doesn’t rise to the level of an impeachable offense.” And you know what, the president of the United States, Bill Clinton, did not attack those people for suggesting he’d engaged in inappropriate conduct. The standard now of the president based on multiple tweets and interviews is, “you need to defend what I did because the call with Ukraine’s president was beautiful and perfect,” and he’s not giving them the room to make even more defensible arguments to concede something. So that’s why it’s very, very different.
HPR: Now that the president’s role has become so outsized with the presence of social media and with someone like Trump, what do you think is the solution to reducing that role again in the future?
PB: Well, that’s a great question. I don’t know if there’s an easy answer. I’ve been working on questions of what kinds of norms that have been trampled in recent times should be codified into law with a regulation or statute. The problem is that some things you can’t do that with. I mean I don’t think you can set a rule or a statute that muzzles a sitting president. The president should have the right to talk so long as those words are not crimes in and of themselves. I think the solution to avoiding a scenario like this is for people to be smarter about who they vote for. And it is in some sense true that you’re not going to solve the problems in America, and you might not even solve the problems with this administration, with an impeachment inquiry, although I think that’s important. It’s important for getting the information out and holding the president accountable even if there’s no conviction in the Senate. And the solution to all of this mess we’re sort of in is to make sure that the future politicians understand that this kind of conduct and behavior is not tolerable. And if you engage in this kind of conduct and behavior, you’re not going to be elected. And if you are elected, you’re not going to be reelected. So there has to be a political price going forward.
HPR: Do you see any large connections between the kind of activities that this administration has taken part in and the kind of activities that you used to prosecute as an attorney for the Southern district?
PB: I think one needs to be careful about overly comparing an impeachment proceeding and a trial in the Senate to a standard fare criminal proceeding, as I’ve said already. There’s a huge difference in the makeup of the jury. In a regular criminal case, the jury is not allowed to research anything on the internet, not allowed to know about who the target is, not allowed to have any relationship with the target. Here, all 100 senators are on one side or the other. You have six of them, by my account, who are actually running to replace the president, so they’re biased as jurors in a particular way. You have other people that are going on television talking about what they think about the evidence. You could never have that in a real criminal trial. In fact, I’ve often said if this were an actual criminal trial where the regular rules of fairness apply, every single one of the 100 senators would be struck for cause because they all have some relationship to the defendant, in this case the president of the United States. So you have to be careful about driving the analogies too much. But some things are parallel in the kinds of cases that we brought. You rarely have explicit written confirmation of a quid pro quo or an extortion, usually people who are in political office — and we charge a lot of people like this — they use the inherent power of their office and try to get someone else to do something and bend them to their will. And you’re seeing echoes of that in a call between President Trump and the president of Ukraine, and then how other people responded to the interests of the president. So there are some analogies and parallels to that typical traditional criminal case, but in other ways the proceedings are very different.
HPR: If there’s one thing that you want to see brought out most in these hearings and if there’s one thing you want to see people take away, what would that be?
PB: Truth. We need all the people who have firsthand knowledge to come forward and their testimony not to be obstructed. Unless we have that, the president can just keep dismissing the whistleblowers’ complaints and some of the other witnesses by saying second hand, second hand. We need to respond to that by having the firsthand folks come forward. I just think there needs to be a full and fair hearing from anybody who has any knowledge of the facts and of the conversations and of the state of mind of the president. Then let the chips fall where they may. I think truth is important, and reasonable people at the end of the day will make a decision about what the consequences of that truth should be.
This interview has been edited and condensed for clarity.
Image Credit: Wikimedia/U.S. Department of Justice