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Now under indictment, former President Donald Trump could be on trial as soon as August. Former acting FBI Director Andrew McCabe joins Andy to run through the latest charges, the mountains of evidence Trump is facing, and the potential outcomes of a trial. In a fascinating, in-depth discussion filled with insight into the legal process, McCabe also compares Trump’s case to other politically charged investigations, such as those looking into Hillary Clinton’s emails and Biden’s classified documents.

Keep up with Andy on Post and Twitter @ASlavitt.

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Transcript

SPEAKERS

Andy Slavitt, Andrew McCabe

Andy Slavitt 

Andrew McCabe, welcome to the bubble.

Andrew McCabe 

Thank you, Andy. It’s a pleasure to be here.

Andy Slavitt

So sit with you a little bit. You grew up in Florida. Is that right?

Andrew McCabe 

I did. Yeah. Contrary to things that you read on Wikipedia. I was born and I was born in New York. And then we moved to Jacksonville, Florida when I was a young kid, and I pretty much grew up there. I went to high school there. So you

Andy Slavitt

Grew up Jacksonville, it’s college, went to law school, what made you decide to join the FBI?

Andrew McCabe 

You know, through law school, I was really just obsessed with anything related to criminal law. So constitutional law, criminal procedure, all that stuff. And my summer between second and third year, when you know, most people are doing their big internship at a big firm trying to kind of do the launch into a career. I applied for a DOJ Honors Program and didn’t get it and so Rather than go as an honors intern, I just went as an unpaid intern for the summer worked in the criminal fraud section at DOJ. And I loved it. I mean, I just became obsessed with reading the reports of FBI investigative activity, which is something we call it FD 302. I spent a lot of my time that summer reading three Oh, twos. And I just really got kind of captured by the amazing opportunity that agents have to interact with everyone to have these like really deep revealing conversations with people. And so when I got back to to Wash U, Washington University, law school in St. Louis, I was really focused on joining the FBI.

Andy Slavitt

This was in the mid 90s. Right?

Andrew McCabe 

That’s right. I started in the bureau in 1996.

Andy Slavitt

Yeah, you and I are roughly the same age. I think I’ve got a couple of years on you. But I think we both got a few gray hairs over the last few years.

Andrew McCabe 

That’s for sure. That’s a few gray hairs and a few fewer hairs. All total?

Andy Slavitt

Right, right. Right. But we’re not complaining. Now maybe just give people a sense of the Justice Department and how it works. The relationship between the FBI and the attorneys in the Justice Department, and historically with the relationship between the Justice Department and the rest of the administration is like because there’s this oppose it. And this is important in the conversation we’re about to have. But there’s this there’s this suppose a kind of provider of independence? How have you experienced that? How’s it work? How’s it supposed to work? Have those relationships Connect?

Andrew McCabe 

Sure, sure. So I’ll give it to you from the FBIs perspective, like the perspective of an agent, the overwhelming majority of FBI employees, FBI agents, their only interaction with the Department of Justice is really just the Assistant US Attorneys they work with in the field, right? There are 56 FBI field offices, most agents work in field offices, about 11,000 agents total. And they build cases. And then they take those cases to the US Attorney’s Office, and they work with Assistant US attorneys, in prosecuting those cases. And that’s it, that’s the that’s the most they’ll ever know or experience of DOJ. So that relationship between FBI people and DOJ people, it is both very congenial, we are great partners. At every level, we have to be right, because you have to have two sides of that partnership to actually investigate a case and prosecute a case there’s no like, just doing one half without the other so that we work very closely together.

Andy Slavitt

I’ve seen law and order. Yeah, there you go. There you go.

Andrew McCabe 

All right. So but it also has its moments of friction and frustration, you know, F typically not always, but typically FBI agents lean pretty hard into their investigations. And they typically choose the most aggressive tact in terms of, you know, pushing for search warrants and electronic surveillance and things like that. And oftentimes, their assistant US attorneys have to kind of push back a little and say, you know, we don’t have quite enough probable cause for this warrant, or we don’t think we’re ready to do electronic surveillance here. In sometimes that difference of perspective on the same issue can cause friction. In a worst cases. You know, agents will sometimes say like, oh, you know, this is this is politics. I’m not getting what I want here, because it must be politics involved. There almost never is, you know, people, some people just don’t see eye to eye on the same issue. They have different goals, whatever. I mean, I never once in the field saw actual politics involved, you know, maybe some people were thinking about their own careers a little more than the case at hand. But politics doesn’t really play a role in any of these decisions. It could be differences about law, and about this the sufficiency of the evidence, but it’s not really politics. When you get up to FBI headquarters and DOJ main, it’s really the same thing. We work very closely together. Sometimes we disagree on things. Ultimately DOJ has the final say over what comes into court and gets indicted and prosecuted and what doesn’t. And sometimes FBI agents see that differently. And there’s some tension but really never, ever saw in my career, people making decisions about which cases to open or close or which cases to prosecute or not, based on their personal political beliefs or their desire to hurt one side or help the other side.

Andy Slavitt

Got it. Let’s talk about the relationship between the attorney general in the White House because, technically, you know the political appointees inside to lead the Justice Department are appointed by the President. They work for the President, much like the Secretary of the Treasury, the Secretary of State, the Secretary of Health and Human Services, yet they’re supposed to be some important differences or or are they? How does how does that relationship work? And how is it supposed to work?

Andrew McCabe 

Sure, so that the attorney general is in a really unique position there as a as a cabinet member, a cabinet secretary level position. They are a political appointee. They serve at the at the behest of the president. And to some degree, the Attorney General’s is responsible to carry out some aspects of the President’s policies, certainly policies with respect to law enforcement, and trying to reduce crime or focusing on terrorism, things like that. So there is there is a political relationship between the Attorney General and the president, where that becomes disconnected very intentionally, is on individual cases. And there is a long tradition, stretching back to the post, you know, through the post Watergate era, that the President and the administration don’t weigh in on those decisions about individual cases, which cases will be indicted which cases won’t which cases will be declined, things like that, because we try in every way that we can to keep that political influence out of the judicial system itself. Right. So that’s different from the Attorney General saying, I’m going to initiate a new program to try to reduce the importation of fentanyl because our administration thinks that’s an important thing. That’s terrific, because it’s a policy right as a policy issue. But in determining whether an individual defendant, the evidence in a particular case is worthy of a prosecution. That is not something that the attorney general in the president confer about, and people at DOJ beneath the Attorney General don’t talk to the administration about things like that. This is so so important. The DOJ has a policy called the contacts policy. And it basically says people in the FBI are not allowed to talk to people in the White House with the exception of people on the National Security Council staff. Right. So we have to work with the National Security Council staff on national security matters, like prosecuting the war on terrorism or, you know, major counterintelligence issues, things like that. But that’s it on individual cases. In any case, that’s brought in the system that’s indicted and ongoing case we do not discuss cases with the White House, the only person that’s allowed if there’s something if that if the White House asks the FBI for something we’re supposed to contact the Deputy Attorney General, let that person know. And they make contact with the White House and resolve it.

Andrew McCabe 

So critical norm, it for reasons that I think we all understand. You look at some of the accusations being thrown around and some recent history, we’ll get to, but I want to I want to go to the indictment that independent counsel Jack Smith, brought against Donald Trump. And I want to to just try to help all of us understand it. Is that objective level as possible. Take Donald Trump’s team away from this, for the moment. Take these facts, the set of facts that you’ve seen here, the evidence that Jack Smith has presented. If you see that evidence, how many times out of 10 Does an indictment get brought every time sometime help us understand kind of the strength of that evidence and the precedent.

Andrew McCabe 

On the evidence that you that is recited in the indictment, that indictment gets brought 11 times out of 10. It’s an overwhelming amount of evidence. And I should say the indictment is really unique. In that respect, I’ve seen many indictments against people who are accused of retaining or withholding classified material or National Defense Information. And I’ve never seen one as detailed and explicit as this. I’ve never seen a case with such overwhelming evidence of intentionality. And we can talk about that more later. That’s typically the hardest thing to prove in these cases. It’s just this case is got an overwhelming amount of that evidence.

Andy Slavitt

So then so white, why is that? What’s the critical element of the evidence that you’ve seen presented here in the indictment? That would cause you to say, that has to be brought? You know, is it the the mishandling of documents? Is it the obstruction of justice? Is it the showing of these documents to others? Is it the acknowledgement that he made that he knew that these documents were classified? Like where? Where does the evidence lead you to go where you can picture Jack and team sitting around going? We have to bring this

Andrew McCabe 

Yeah, I think there were probably a couple of those wow moments for that team. And this that’s one of the things that makes this case so different is there’s there’s a lot of angles to that. It’s not just one overwhelming aspect. There are a couple of things that really jumped out at you, but let’s look first at the I think it’s 31 counts of withholding National Defense Information. That’s really the meat of the indictment. That’s those 31st 31 counts are only against Donald Trump, not they don’t include what not. And there’s those are accounts of under the Espionage Act of willfully retaining National Defense Information that simply requires that the government prove that you took National Defense Information you did so knowingly and willfully. And there’s overwhelming evidence here, right? We have a search warrant that was granted by a federal court judge who had federal judge decided there was probable cause to believe based on the government’s application, that there was there would be evidence of this and possibly other crimes at Mar a Lago, the search warrant was executed, and a lot of evidence was recovered, you will recall, most of the materials were top secret, even those that were top secret go beyond simple top secret there sei documents, there are documents that are based on FISA documents that are based on classified signals intelligence, there are documents based on sensitive human source material. I mean, these are like the absolute crown jewels of what the government tries to protect every day. So a lot of material, very serious, highly classified, clearly National Defense Information. And now there’s also a lot of information that Donald Trump was involved in this personally, right. He can’t say he didn’t know he had the documents. He’s admitted publicly, he knew he had them. He’s claimed publicly that they’re his, he resisted giving them back for quite some time. So that also indicates like a willful retention of those documents. And of course, we have him now on tape on an audio tape, allegedly showing or at least referring to one of those documents and telling the people in the room that he knew it was still classified. So it’s just an overwhelming amount of evidence on that charge. The next few charges are, there are some conspiracy charges that involve both he and Walt nada. And those are more about the conspiracy to obstruct justice. And, again, really compelling evidence, you have video surveillance, timestamp, video, surveillance, evidence of Walt nada, taking documents out of the room where they were supposedly stored, and then bringing fewer documents back in, you have text messages between nada and other colleagues, explaining that he was doing that to bring those documents to Donald Trump. So Trump is directly involved in the movement of these boxes. And then you have the movement around, essentially taking documents out of that storage room before Evan Corcoran, who is was then Donald Trump’s attorney could go in and and review the bot the documents to try to remove the classified stuff to comply with the government subpoena. So is this can it’s been alleged as a conspiracy between nada and Trump to essentially deceive Trump’s own attorney in an effort to hold on to more of the documents. And we know that’s exactly what happened. Corcoran gives back 38 documents. And there are still over 100 more on the premises that’s discovered during the the search warrant. So this is undeniable evidence. It’s overwhelming. I think any prosecutor Jack Smith has done a fine job so far. But I think any prosecutor would look at this combination of evidence and laws and say like, we have to bring this case there’s no, if you’re not going to bring this case, then you can forget about prosecuting pretty much anyone?

Andy Slavitt

Well, that’s what I was going to ask you, what would be the consequences of looking at that evidence and saying, you know, I’m not going to bring the case. What precedent does that set for our national security?

Andrew McCabe 

Sure. So on a on a legal level, it’s very, very disturbing, right? So in such an under such overwhelming evidence that is publicly known, right? This, this kind of adds to the precedential value, to then try to bring a lesser case against a different defendant in the future, you’d have a really hard time justifying that legally and ethically. And I think you’d face some significant defenses about selective prosecution and things like that from defendant. So it would essentially make the law much harder to enforce,

Andy Slavitt

Though becomes open season on taking documents in a sense.

Andrew McCabe 

That’s right and more more broadly, you’re sending a message to the rest of the intelligence community which is enormous, right? So many people have clearances and access to classified you basically sending a message that you can’t be prosecuted for putting our nation’s secrets in jeopardy and that is incredibly damaging. We have all kinds of problems for Protecting our sensitive information. The worst thing we could do right now is making forcing those laws even harder. That would be really destructive on many levels. Were they not to bring this case.

Andy Slavitt 

Alright, let’s take a quick break. I want to come right back and talk about the how the documents found at Mar a Lago compare to the documents found to Joe Biden’s garage, that situation. And importantly, Hillary Clinton’s email inbox we’ll be right back. So help us understand. I think, and I think you just did, but I want to just affirm this because there are people who would say, hey, but Hillary Clinton had an email server outside of the four walls of the government. Why wasn’t she prosecuted? Dr. DE Santos said that explicitly. So, you know, I think that is a talk track that is going on out there, which at its heart, if people believe it really questions, the independence of the Justice Department. So what are the differences and similarities there? And how was Hillary the investigation into Hillary Clinton’s own situation handled?

Andrew McCabe 

Yeah. So there’s a lot packed in there. And it’s a really important issue. And I get it, people look at it at the headline level, and they’re like, this is not it seems not fair. The Democrat got off, and now the Republican is being prosecuted. But these two cases are fundamentally different on many levels. So just as a brief primer, your I’m sure your listeners remember Hillary Clinton, it was discovered by the Department of State IG that Hillary Clinton had been, while she was Secretary of State using instead of using the State Department email, she had a private server that she had established first in her residence, and then later it was it was run out of different places. And she’s that steady state email. And so in response to some congressional requests for emails, she went back, realize there were about 60,000 emails that she had, she had our attorneys go through it and separate those that were personal from those that were work related. She turned the 30,000 work related over to the State Department, and then deleted the other 30,000. So the FBI received that case as a referral from the IG was publicly known investigation before we got it. And we went about trying to first and foremost with the government doesn’t every one of these cases is trying to recover the sensitive classified whatever National Defense Information and so we did that first with the 30,000 emails that she had returned. And what we we reviewed every single one of those goes for classified content. Now, it’s important to remember, these emails were not classified documents. They weren’t PDFs of classified documents that were clearly marked as classified and indicated who had classified them. And all those sorts of things you expect to see on classified documents. This was just emails, and we read them and try to determine which of these emails when sent, included information that should have been classified because it wasn’t portion marked or stamped or anything like that. What we ultimately determined was out of those 30,000 emails, there were 52, email chains, email exchanges, right, that were classified, when sent, eight of those chains included content that was should have been classified at the top secret level 36 of those chains had content that should have been classified secret, and eight should have been classified confidential. We also went out and tried to recover as many of the other 30,000 that we could possibly find. And we did this by going through the accounts of all the people that she had been corresponding with. And we found 1000s. More, I don’t know what the exact number is, but many 1000s more. And ultimately, that didn’t really add very many to the total numbers, I think the total numbers ended up being about 55 strings total with eight Top Secret 37 Secret and 10 classified that’s my best view of the numbers. So already from from the very beginning, you’re talking about a very different volume of classified information. It’s much smaller on the Clinton side. And it’s not clearly marked. There’s all kinds of wiggle room as to whether or not the people who are engaged in those email conversation sessions knew that it was classified and intended to send classified content. This is where it becomes very different. When you’re trying to find in the investigation, the intent to withhold or or you know, mishandled classified information. First of all clear comments, Statements of Intent, like we have in the Trump case, it’s mine, it’s mine, it’s mine, I’m not giving it back. That’s that’s pretty easy. Not so much in the Clinton case. So you look for other things you look for, like an overwhelming massive amount of information that couldn’t really be denied it couldn’t have been mistakenly taken. In this case, it was a very small fraction of the of the of the email traffic that she had engaged in. It also was not clearly marked, it wasn’t portion marked, it wasn’t to the untrained eye, you might not know that it was classified at all. And, you know, there’s no other evidence of intent. And so at the end of the day, while we were very critical about Hillary Clinton’s conduct and establishing this server and emailing about all these subjects with people, there was no evidence of intent upon which to base a prosecution. And that is why we did not ask the Department of Justice to pursue an indictment. They agreed with that recommendation, and didn’t didn’t present it to a grand jury.

Andy Slavitt

This was the Trump Justice Department could agree with it.

Andrew McCabe 

Well, it was, it was the Obama Justice Department, because this is like, well just started in 2016, the summer of 2016,

Andy Slavitt

With 2016. And so the Trump Justice Department, did they have a chance to weigh in as well?

Andrew McCabe 

They could have weighed in anytime they wanted, they could have gone back and reopen the case, they could have re investigated it, they could have come to the opposite conclusion. They didn’t do any of those things. The trump state department went back and did a review of our investigation and everything we found and how it had been handled that state and they found, you know, many mistakes had been made by State Department personnel in the way that they were emailing and things like that. But they did not find any criminal conduct either. So this was a finding a perspective that was essentially I don’t wanna say approved, but but concurred with, I guess, by both the Trump Justice Department and the trump state department.

Andy Slavitt 

So it does sound at a minimum like carelessness. And you get understand how people will be very critical. I’m curious. Vanessi, the same question as if there were 10 cases like this with names blank, you know, how often does a prosecutor say, bring a case if there were 10 cases with evidence like this?

Andrew McCabe 

So evidence, like the evidence we had in the Clinton case? Never, never know. And we know that because part of our review of this case and trying to figure out how we thought about it. So we had the Justice Department go back and review every single case that had ever been investigated and prosecuted for mishandling classified, and there was not a single case that was brought on similar facts. And that’s what compelled then Director James Comey to say there’s no prosecutor that has or would bring a case on these Facts and I think that was the the right conclusion. You know, a lot of people were critical of the way that we announced the result in that case. And the things that we said about Hillary Clinton in that announcement, you know, I agreed with with Jim at the time, I think very differently about it. Now, I think we did step out far beyond what we should have said about her narcotics if we were not going to pursue an indictment, which we clearly would not, we should have been more circumspect in our comments. That being said, their conclusion, or the recommendation to not pursue an indictment was absolutely right.

Andrew McCabe 

Yeah. Let’s talk about Biden’s they found some files in Joe Biden’s garage and Mike Pence owned up to having some some files as well. I should people look at that in relation to what we’ve seen in the indictment with Trump.

Andy Slavitt

So let’s talk about the pence case first, because that one is pretty much resolved. And again, what you’re gonna see here are vast differences between former Vice President Pence his conduct, and former President Trump’s conduct. So the pence case, as a result, as I understand it, of all the news coverage of the Trump case, and the situation with President Biden, Vice President Pence initiated, voluntarily initiated a kind of a recheck kind of a search of his own files and things by His attorneys just to make sure that he didn’t have anything that was classified. And of course, they found a few documents that were I think it’s probably, I don’t know, maybe two dozen or something like that it was not not a huge number. So they immediately reached out to the National Archives and the Department of Justice, they turn that material over. And then they cooperated fully with the government’s efforts to do their own search of of pencils, home and office and whatever else. The FBI came in and conducted a thorough search and didn’t find anything else. So at the conclusion of all that activity, and I’m sure some other investigation and interviews that they likely did, the Department of Justice declined prosecution in that case, which is absolutely the right call, in my opinion. And the reason is, there’s no evidence of intent to withhold that material. Government was promptly notified. The material was turned over. They cooperated with the investigation. During that investigation. They didn’t find, I presume, any any indicators that the Vice President had taken that material and held on to it intentionally. So again, not appropriate for prosecution. It goes down in the very long annals of situations where people made mistakes and ended up with classified in their in their possession and did the right thing and getting it back. Okay, so now that Joe Biden President Biden situation, we don’t The first thing to remember is we don’t know yet because the investigation is still ongoing. It is being investigated by Special Counsel rob her. Rob her was a US attorney. And prior to that a very high ranking official in the Trump Justice Department. So he is a Trump appointee. I know Rob personally, he’s a very smart guy. He’s a very thorough lawyer. I’m sure he’s doing a competent job. And we’ll have to wait and see what he finds. If the if he finds along, as they did in the pence case that there is no evidence of intentionality in the withholding, that I expect it will end up with a declination. The much harder case is if he finds evidence of intent. We’re the person he’s investigating not the current sitting president of the United States, I expect that person would be charged. But now because the subject is the sitting president, you run up against the DOJ policy that a sitting president cannot be indicted, while they’re president. And that’s, you know, controversial policy, but one that I think is founded on some good intentions, the idea is a criminal trial would be very distracting to the sitting president. So by indicted him, you’re essentially depriving the American people of the full services of their elected president, because he’s got to defend himself in court doesn’t mean that Joe Biden couldn’t be charged for offenses related to these documents after he’s no longer president whenever that is, but it just means that special counsel would likely not charge him now. But again, we don’t know how that case is going to come out. So I think you should watch it closely. And I fully expect that it’ll be handled consistent with the law, whatever the facts show

Andy Slavitt

In this again, we it could be a situation where regardless of what happens, people are gonna squeal on one side or another. But I think if Joe Biden is in a position where where he’s that did something similar to Donald Trump, and they find evidence of that, hiding documents, knowing that it took them some intentionality that there will be a case, the scenario where that isn’t the case, as you point out will be a really interesting one, because that will cause people who are so inclined. Because let’s face it, we’re a little bit tribal. If you say my guy got a little, right, just a little if my guy got it, and that guy didn’t. And this is where people will then have reason to say I don’t believe the investigators here. And this is where I wanted why I started with talking about the independence of the Justice Department. Historically, yeah, you know, there’s some dangerous things being said right now, Fox News, I think had a Chiron that said, you know, want to be dictator, you know, tries to arrest its opponent or something of that nature. I’m butchering it a little bit, but it’s not far, the defense of Trump is to put the justice department itself kind of on public trial. Meanwhile, that lost on some of us, that the person who tried to fire his entire senior leadership at the Justice Department, because they didn’t go along with the 2020 plan to overthrow the election was in fact, Donald Trump. So it feels like a tricky, dangerous spot. And of course, where you sit and who you support could color how you see this. That’s right. But if people are trying to talk about this rationally, with their friends, of different political persuasions, etc, what’s the right way to think about how the Justice Department is being operated here? And whether or not people should have a concern? Or or should be confident responding about the way the Justice Department’s handling things? How do we think about it? Yeah.

Andrew McCabe 

So if this is this is the the issue that concerns me the most these days, I just feel like we are confronting a real danger here in terms of the resilience of the institutions we rely on, to do things like maintain a fair justice system. And that danger has been created by people like Donald Trump and his supporters by very vocally attacking these institutions, primarily the FBI and DOJ. And I think I think it’s really important for people to step back from that, and be skeptical consumers of that news that reporting those comments whether you’re a Democrat or Republican you either way, I think the way to, to think about these things is to demand proof, like, recognized. So, you know, in law enforcement and intelligence, you know, that one of the one of the core mantras that we live by is consider the source, right? Consider the source, you’re getting information from people all the time, and you can easily be misled, you have to always be a little skeptical. Think about the motivations of the sources, or the informants that are providing you information. So in this case, the person who is leading the charge of attacking these institutions is Donald Trump. And he’s clearly doing it for his own benefit. It’s, you know, he sees himself in jeopardy. And he believes his best defense to these charges as a way to maintain his kind of political position is to attack the institution. So he has a vested interest in tearing down these institutions of vested personal interest. Unfortunately, it’s, I think, at odds with the best interests of the country. So people should ask, understanding that motivation, people should ask themselves, what are the facts? Give me one fact, one piece of information that substantiates this claim. That for instance, you know, Joe Biden is behind the MAR a Lago documents case, we there has been a ton of reporting, I do a podcast on the special counsel investigation. I read everything that comes out, Jack. That’s right, Jack, there’s there’s no information whatsoever that indicates any White House involvement in these DOJ or special counsel decisions. Not one, show me one. I’m happy to see it. I’ll talk about it all day long. But there isn’t any anything behind that claim. I think the same is true, these broad base claims of Oh, the weaponization of, of the FBI, the politicization of the FBI. Where are the facts? And like, you know, the biggest skeptics will say, Well, it’s the Russia hoax. And Pete, be, you know, struck emails, and let’s be honest, those things have been investigated multiple times by all sorts of different people, many of whom are Republicans or worked for the administration. And what they found was that the Russia hoax, the Great Russia hoax case, the Russian investigation was was well initiated on solid predication, and that politics did not play a part in our decisions. Look at the, the the DOJ Inspector General, I mean, full disclosure. That guy is no friend of mine, but I will say he got this right. You know, look at the Senate Intelligence investigation headed by a Republican chairman. No indication of politics and the decisions that we made. Look at the special counsel who came in to take over the investigation. He found exactly what we were worried about multiple connections between the campaign and Russia and multiple acts of obstruction. didn’t charge any of it because you had a sitting president who is in the middle of it. So there’s no facts to support this now broad based belief that the FBI has become politicized.

Andy Slavitt

Well, there’s another thing here, it’s very similar to what you’re saying, but it’s a slightly additional angle, which is, generally speaking, a Republican citizen is going to be pretty skeptical of when a Democrat particularly politically elected Democrat, which a number of prosecutors are in different parts of the country, brings the charge or makes a claim or lays out evidence. But when another Republican in a position of authority, like a bill Barr, right, or an Alan Dershowitz, I’m not sure if he’s a Republican or what he is, but he’s certainly been a friend of Trump’s and a defender of Trump’s when they when they provide their evaluation. I think Republicans do hear it less skeptically. In fact, there’s a lot of evidence that suggests that that that’s really important that citizens regardless of their partisanship, who take the responsibility and accountability to say, I know this isn’t popular among my folks, but because you got to listen to this. So I’m wondering if you can comment on what you’re seeing from some, and the preponderance of of experts in criminal law, justice department figures that are on the Republican side. And for those who aren’t familiar, maybe you can recite a little bit of what Barr himself said, who was who was Trump’s Ag, and others?

Andrew McCabe 

Sure. So first, there are very, there are pretty few and far between, right, prominent Republican voices in the wake of the indictment, who have come out and called it out for exactly what it is. So that’s the first problem. There have been many who have kind of aped the president, the former president’s talking points, and that’s not great. But let’s look at Bill Barr. Bill Barr was Donald Trump’s handpicked Attorney General and many would say function more like a personal Counsel to the President than an actual Attorney General, somebody whose decisions I think, are rightfully question while there, all kinds of really questionable things that he did while he was attorney general, in a clear effort to protect and defend Donald Trump rather than to pursue justice and individual cases, but I’m not going to go all the way down that rabbit hole. So let’s just say Bill Barr is a pretty proven commodity for Donald Trump and actually walked away from his job only when he, in a moment of candor called out the fact that there wasn’t actually any evidence of fraud, significant evidence of fraud in the 2020 campaign, when he did that, of course, Donald Trump, you know, had no use for him after that.

Andy Slavitt 

When you turn the lawyer into a principal, when you ask the lawyer to do something that they know is potentially going to get them in trouble. Then, magically, this partisanship kind of falls away. And people start to say, whoa, whoa, whoa, that’s a burden.

Andrew McCabe 

That’s right. Yeah. It’s called self preservation. Exactly whatever it is, you know, I’ll give him some credit for telling the truth in that in that account. Well, he has now come out and said that he thinks that the evidence in the indictment is overwhelming. It’s detailed, and it is extremely damaging to the former president. And I think he said made the comment I made this quote here. Don’t Don’t take me to task over but he said something along the lines of if even half of what’s alleged in the indictment is true, then the former president is toast. I agree with those comments is a lot I don’t agree with Bill Barr, but I’m on with him on that one. So, and I think that that those comments actually had an impact. You could kind of see other Republicans, particularly on the hill, stepping back a little bit from their initial comments, you know, kind of blindly defending the president, people are starting to now make some comments about their seriousness of the indictment and things of that nature. What really bugs me though, Andy about even these Republicans who are now mustering up the courage to, to state obvious facts, is when they make those comments. And I know why they do this. This is a common kind of consensus building kind of argumentative technique, right? You know, you’re building to a to a statement that could alienate some of your, some of your audience. So you build your way to it by saying things that, you know, they’ll agree with first. And so that’s what many of these Republicans are doing. They’re starting out with these comments of, listen, I know, you know, we’re all concerned about the politicization of the Department of Justice. stasis and that the FBI is off the rails, but Right. And then they go into saying about how serious the indictment is. I really, I really have a problem with that because they’re just reiterating these false charges that are contributing to the erosion of trust in these institutions, which is unfair, and it is not based on any observable facts.

Andy Slavitt 

All right, I hate to interrupt, but I want to take one more quick break. And one more quick break, and then we’ll be back to talk about how Trump will defend himself in court. And what the sentencing would look like if there were conviction, as well as some of the other far reaching implications here. I want to close by just talk to you about what to expect next in the case in some of the dynamics of the case, you know, people have been griping about the judge judge cannon who’s been selected, by the way randomly to hear this case. I don’t know about you, I find it a little dangerous for people to be saying that she should recuse herself, because there may be evidence that she’s made a bad ruling in the past related to Trump. But I don’t see any evidence of corruption. And I think this idea of Judge shopping or trying to get her to recuse herself would would in fact feed into some of the dangerous concerns you talked about. But nevertheless, you know, jury trial judge is gonna play an important role. It’s going to be in Florida, some different dynamics that shape up around that there’s an element of timing, with regard to do the prosecutors want to speedy trial, does Trump want to drag it out? There’s some precedents and sentencing, maybe you can form us in so in the closing minutes, I just hope hoping you can kind of give us a sense of some of those dynamics, what we can expect. And what is sort of at stake here for Trump.

Andrew McCabe 

Sure. So on on kind of the first point, I think it’s important to point out that, that Jack Smith and his team very intentionally brought this case in the Southern District of Florida, where venue would be unassailable, where Donald Trump has a right to go on trial and in his, you know, in his own community, and, and once you have, having chosen that, that district, they also indicated on their kind of intake form, that the trial should take place in West Palm, which is the kind of sub office of the main courthouse in Miami. And that is the courthouse where Eileen cannon is one of the very few judges, I think there were maybe four or five judges or something like that there. So by making those choices, they put themselves in a position where it would became pretty, pretty good chance that they would get her as their trial judge. And, you know, they did that with eyes wide open.

Andy Slavitt

And why did they do that?

Andrew McCabe 

I think they did that because I think they are doing everything they can to be as fair and impartial to Donald Trump, under the circumstances that they can possibly be they could have brought the case in DC where they would have had a much more favorable jury pool, the argument for venue is a little more risky. So that would have taken on some risk for them. But nevertheless, they could have done it. But they have extended themselves and tried to put this thing on on unassailable, legal and kind of fairness grounds and I think that’s the right call. As far as Judge cannon is concerned. I agree with you. I think if we reflexively start screaming, oh, she’s biased. This is terrible. Like we’re giving in to that same sort of tribalism, that seems sort of baseless accusations and conclusions about people. We’re at the same thing that Trump does, and I feel like that’s not proper, there is no real record here, upon which you would As a claim of rule of removal, or upon which she would, you know, recuse herself, I do have some concerns about her her capabilities, because I think that ruling in the earlier case about the document review and, and bringing in a special master was, was so wildly off this current state of the law and the facts in this case that concerns me a little bit. And having a judge who is fair, but not really the best judge can also be a big problem for the lawyers in the case. So I think we should watch that closely. But nevertheless, this is how the system works like people all around the country are getting charged in federal court 1000s of times a month, and they just get the judge that they get. So I think we just, you know, question this, every decision she makes is going to be under the microscope, I expect that she’ll be sure to try to be very careful. So we’ll just have to see how that goes. You know, he is innocent. He is innocent until proven guilty. He’s going to go in and and take advantage of his day in court. There are some defenses, he’ll obviously raise, I think, this issue that they’ve already made all the allegations about prosecutorial misconduct, we really don’t know very much about that, except that it revolves around some offhanded and impertinent sounding comment that one of the lawyers on Jack Smith’s team made to the lawyer of Walt nada, referencing his existing efforts to become a federal judge. So we don’t really know what happened there. I expect that will be investigated if that lawyer did something improper. That’s the sort of thing that the Justice Department would take disciplinary action. I don’t really see that turning into dismissing the case. But we’ll have to see. he’ll, he’ll undoubtedly challenged the evidence, in this case, most prominently the evidence that the government used from Evan Corcoran, of course, the government was able to successfully pierce the attorney client privilege between Donald Trump and Evan Corcoran, because they proved to a federal judge that there was a prima fascia case that Trump was lying to his attorney in the commission of a crime, that crime being obstruction of justice. So they’ll attack the use of any evidence derived from Corcoran. They’ll try to attack what came out of the search warrant. That’s probably low, low likelihood of success there. And, you know, he’ll defend himself. We’ll, we’ll we’ll see how it goes. That’s That’s how this thing should proceed. As far as the sentencing question, if he is convicted in this trial, you know, this is where it becomes really a little bit sticky in terms of the fairness argument, because as you said, like anybody else committed this crime on these facts, if they’re convicted of it at trial, they would be looking at significant jail time. I mean, we’re talking about, you know, could easily be 10 years or more with the number of counts and everything else. I think, I think, you know, a friend of mine did a brief calculation along the sentencing guidelines and said, it looked like it could end up being like eight to 12. Nevertheless, this is where in the process, the fact that he is a former president weighs in every defendant what’s Once convicted, goes through, it’s a bit of a review, to see what the sentence should be. And that’s when personal aspects of your life are factored in your age, maybe your health, your connections to community, whatever that might be. And that’s where the fact that he is a former president becomes significant, because the issue becomes Can you act, you know, the Secret Service is that is committed to protect him? Could they possibly do that? If he’s incarcerated in a federal facility? That seems highly unlikely. So there’s a lot of sticky questions that might have to be resolved, surely, if we get there.

Andy Slavitt

And look, I think, at that point, questions around, which are not as relevant to this case, but the motive? Why did he do it become interesting? Because if there’s evidence that Donald Trump was using some of this information to share with foreign governments or something like that, you can imagine the the sentencing Well, first of all, there could be additional charges, of course, but yeah, but that would that would color I think, review the sentencing. But if in fact, this was someone who really wanted to hold on to some of the trappings of power. And if it’s determined that he was doing this, it’s sort of a way to brag or, or something, but he really had no ill intent. Yeah, that feels a hell of a lot worse than negligence. But it doesn’t feel as bad was somebody who was had some more nefarious aims and, you know, maybe sentencing is the right time to start asking those questions as well. Right.

Andrew McCabe 

Absolutely. Absolutely. There’s a lot that factors into that. And, you know, your your kind of history, he’s got no criminal history, certainly no violent criminal history. He has been a prominent figure on our national scene for quite some time.

Andy Slavitt

Although although that, although that’s arguable the but with the New York case, but Well, look, I mean, we get it we get, I forced us to go a little bit ahead of ourselves talk about Trump and sentencing in the trial just because I think people want to know, but I think the more you hit on what I think you and I at least seem to care more about, which is, you know, Donald Trump is one person, but how the Justice Department is being attacked. And the danger that that presents the democracy, you know, if in fact, things are lining up the way they appear to be lining up, you’ve got a president in Ag, and a special prosecutor, who appears to have conducted themselves as you just said, including with the venue of the case and everything, with an incredible amount of forethought, above reproach above scrutiny. Joe Biden’s been around the block before and he’s a very careful institutionalist doesn’t like to have conversations ever anywhere. Because he knows everybody writes a book. Yeah, that are going to be problematic. And I think staying arm’s length has been the approach that he’s taken. And yet these attacks, I think it had far reaching consequences long after, you know, people have stopped hearing about Donald Trump.

Andrew McCabe 

That’s right. I see it the same way. I mean, he will use every tool he has, in his impressive arsenal of public relations, to save himself and if tearing the fabric of our FBI, our Department of Justice of the criminal justice system itself in half, if he thinks that’s what’s necessary to protect himself, that’s exactly what he’s going to do. It just important for people to remember, like, step back, think about the facts, it remember like this, you know, this is unprecedented. It’s, it’s a sad place for the country to be we are on a hard road right now, people are gonna be very upset. There’s gonna be all kinds of tumult as a result of these, these events. But we are on this road, because of the conduct he engaged and because of the decisions he made, and the conduct he engaged in a grand jury of his peers, not Joe Biden, not Merrick Garland, Jack Smith, a grand jury of his peers decided that that conduct, there was probable cause to believe that that conduct was a commission of several very serious crimes that go to the heart of our national security. That’s why we’re here and it’s a tough place to be. But I think now we need to ride it out. We need to have faith in the process, we need to watch it closely. Make sure they make good sound legal ethical decisions, call them out when we think they haven’t. But so far, I think they’ve acquitted themselves very well. In this case.

Andy Slavitt

Andrew became incredibly thoughtful, even handed and clear presentation of these very important issues. As always, if you want more of that, go listen to Jack, download Jack, the podcast that Andrew co hosts, there’s an incredible amount of additional depth. And it’s as things change here. That is a great place to follow it. Thank you for your public service. And through some very difficult and interesting times. You’ve helped us navigate and appreciate you being in the bubble.

Andrew McCabe 

Andy, thank you so much. It’s been an absolute pleasure and great to talk to you today.

Andrew McCabe 

Thanks to Andrew, thank you for listening. Don’t forget to email me at Andy at limonada media.com. Next week, Joe Biden’s senior adviser and Anita Dunn will be on the show for a exclusive conversation. We’re also going to have coming up in July, the newly named head of the CDC, my old chief of staff, Mandy Cohen, who’s going to provide her first look at what’s going on inside the CDC. We have Tom Frieden, former head of the CDC coming out to talk about what’s next with the new vaccines and all kinds of other good stuff. Hope your summer is getting off to a great start. Thanks for listening.

Andy Slavitt 

Thank you for listening in the bubble. If you like what you heard, rate and review and most importantly, tell a friend about the show. tell anyone about the show. We’re production of limonada media. Cal Shealy is the Senior Producer of our show. He’s the main guy, and he rocks it with me every week. The mix is by Noah Smith. He’s a wizard. He does all the technical stuff and he’s a cool guy. Steve Nelson is the vice president of weekly content. He’s well above average, and of course, the ultimate pig bosses. is Jessica Cordova Kramer and Stephanie whittles wax. They are wonderful inspiring, and they put the sugar in the lemonade. The executive produced the show along with me. Our theme was composed by Dan Melotte and Oliver Hill, and additional music is by Ivan Carey IV. You can find out more about our show on social media at limonada media, where you can also get a transcript of the show and buy some in the bubble gear. Email me directly at Andy at laminata media.com. You can find my Twitter feed at a Slavitt and you can download in the bubble wherever you get your podcasts or listen ad free on Amazon music with your Prime membership. Thank you for listening. Thanks for listening to IN THE BUBBLE. We’re a production of Lemonada Media. Martin Macias and Kyle Shiely produced our show, and they’re great. Our mix is by Noah Smith and James Barber, and they’re great, too. Steve Nelson is the vice president of the weekly content, and he’s okay, too. And of course, the ultimate bosses, Jessica Cordova Kramer and Stephanie Wittels Wachs, they executive produced the show, we love them dearly. Our theme was composed by Dan Molad and Oliver Hill, with additional music by Ivan Kuraev. You can find out more about our show on social media at @LemonadaMedia where you’ll also get the transcript of the show. And you can find me at @ASlavitt on Twitter. If you like what you heard today, why don’t you tell your friends to listen as well, and get them to write a review. Thanks so much, talk to you next time.