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[00:00:01]

From WFYI in Philadelphia, I'm Terry Gross with Fresh Air. Today, how President Trump, his lawyers and Attorney General William Barr outmaneuvered Robert Mueller.

[00:00:14]

We talk with Jeffrey Toobin about his new book, True Crimes and Misdemeanors The Investigation of Donald Trump. It's about how Trump survived the Mueller investigation and impeachment. Toobin will explain why he thinks Mueller failed at his two most important tasks and how that undermined his otherwise remarkable work. Included in the long list of people Toobin interviewed are members of Mueller's team and Trump's legal team. Toobin is CNN's chief legal analyst and writes about legal issues for The New Yorker. That's coming up on Fresh Air.

[00:00:50]

Remember, the Mueller report seems like a long time ago, doesn't it? How about the impeachment of President Trump? The Senate trial ended just a few months ago, February 5th, but that seems like a long time ago to so much has happened since then. But the Mueller report and the House impeachment and Senate trial left us with so many unanswered questions, questions. My guest, Jeffrey Toobin, is still trying to answer Tobin's new book, True Crimes and Misdemeanors.

[00:01:19]

The investigation of Donald Trump adds new twists and turns to the story of how Trump survived the Mueller investigation and impeachment. The book is based in part on Tuba's interviews with members of Miller's staff, subjects of and witnesses in Mueller's investigation, Trump's legal team, Trump administration officials, members of Congress of both parties, congressional staffers and defense lawyers. Toobin is a staff writer at The New Yorker and chief legal analyst at CNN. He's written previous books about the Supreme Court, the Bill Clinton Monica Lewinsky scandal and the trial of O.J. Simpson.

[00:01:56]

Before becoming a journalist, Toobin was a lawyer, and in the 80s he served on the team of the special prosecutor, Lawrence Walsh, investigating the Reagan administration's Iran-Contra arms for hostages affair.

[00:02:09]

Jeffrey Toobin, welcome back to Fresh Air and congratulations on the book. So you write in the book that Robert Mueller's caution and reticence led him to fail at his two most important tasks. Let's take them one at a time. The first is that you say he failed to get an interview with Trump. Why would getting an interview with Trump have been so important?

[00:02:35]

Trump was the protagonist of this entire affair. He's also a pathological liar, and he is someone whose perspective, if you want to call it that, was indispensable to resolving what really went on here, what Trump was thinking, what his intent was in a legal sense.

[00:02:56]

So the failure to have his voice in the Mueller report and in Mueller's determinations about what to do with the information he gathered left, I thought, a massive hole in the investigation.

[00:03:11]

So in the written questions, Trump mostly answered that he didn't recall that he doesn't remember, do you think it would have been any different with a face to face interview?

[00:03:23]

Hugely different. I mean, the written questions were basically a joke, I mean, they were, as I describe in the book, they were essentially written by the lawyers and lawyers doing what lawyers do, answered the questions in such ways that they could not be proven false.

[00:03:41]

So there were an abundance of I don't knows and and I don't remembers and I can't recalls. And the lawyers also had matched up the questions to the record of emails, of visits of so that Trump couldn't be contradicted with actual known facts. So, I mean, the written questions were practically useless.

[00:04:05]

What would have been different in oral questions is that Trump would have done what he always does, which is lie extravagantly and Trump can't help himself. That's how he behaves.

[00:04:17]

And, you know, his narcissism and his incredible dishonesty when it comes to anything related to his things of importance to him would have come through. And that's, you know, an indispensable part of this story. And we know that because so much of what he said publicly about the Russia matter and later the Ukraine matter was so obviously false.

[00:04:43]

How did Trump's legal team outmaneuver Robert Mueller and his legal team?

[00:04:49]

Well, this to me was was in many respects the most interesting part of the story.

[00:04:55]

And a lot of it has to do with delay that even though the law doesn't change moment to moment, you know, high profile political investigations have a momentum or an absence of momentum that really has concrete effects.

[00:05:12]

And just to refresh people's memory, Mueller became special counsel in May of 2017.

[00:05:19]

By the end of twenty seventeen, he was starting to put pressure on the Trump legal team, which was then led by John Dowd, a Washington lawyer, and Jay Sekulow, another Washington lawyer and conservative activist that he wanted an interview.

[00:05:36]

And Trump, you know, in characteristic fashion publicly had said a lot of different things about in interviews like, yeah, I'll talk to Mueller.

[00:05:43]

I have nothing to hide.

[00:05:44]

But then he went back on that. But but there was it seemed a possibility that there was going to be an actual person to person interview between Mueller and Trump. Even in January of twenty eighteen, there was a sort of tentative date set where there would be an interview in Camp David at the end of January. But there was never actually a final agreement on that.

[00:06:07]

And, you know, Sekulow and Dowd actually disagreed about this. Dowd was somewhat more confident, at least at the beginning, that Trump could handle these questions. Secular was against it from the beginning. But ultimately, Dowd came to The View, like a lot of people around Trump, that, you know, he lies all the time.

[00:06:26]

And you would never want to put someone who was, in effect, a criminal suspect in front of questioners for whom a false statement is a crime.

[00:06:37]

So the January date was canceled in.

[00:06:40]

Dowd said he's not going to do it at that point. Trump, who was restless and unhappy about this whole thing, effectively fired Dowd, although Dowd said he quit. That created this sort of gap where there was no leader of the defense team. And Sekulow, who was sort of the second in command, said, well, you know, give us some time to get organized.

[00:07:03]

This was the time that if Mueller really wanted to issue a subpoena, he could have done it because he he had been working for less than a year. That case probably could have gotten to the Supreme Court by June. He really could have done it.

[00:07:17]

But but Mueller, who has a certain deference and respect for authority, especially the president, gave Trump time and that allowed Trump to hire Rudy Giuliani. And Giuliani didn't come on until March and he didn't meet with Mueller until April.

[00:07:33]

And by that time, Giuliani, who, despite his clownish appearance on television, was actually fairly savvy in how he dealt with Mueller and deferred to his colleagues in dealing with Mueller, kick the can further down the road.

[00:07:50]

And ultimately, by the fall of twenty eighteen, Giuliani told Mueller that Trump would only answer written questions, take it or leave it.

[00:07:58]

And Mueller ultimately took it. At that point, you know, he'd been going for a year and a half almost, and the momentum for a subpoena and a long legal fight, it had dissipated even within the Mueller office.

[00:08:11]

So it was a piece of good lawyering by the defense, Dowd and then Giuliani that kicked this can so far down the road that Mueller felt the. Too much time has passed and he couldn't start a legal fight over a subpoena, so just to sum up, had Trump testified in person, you suspect that he would have either gotten facts wrong or outright lied and that would have been a crime and that would have changed the whole course of the outcome of the Mueller investigation, to be sure.

[00:08:45]

And we would have had more insight into what really happened here. What was he thinking? What did he think about his relationship with Russia during the twenty sixteen campaign? What what was he thinking when he was telling James Comey to ease up on the investigation of Michael Flynn or when he was trying to get Mueller fired?

[00:09:08]

The issue of Trump state of mind, the legal question of what was his intent was central to this case and hearing from him about what his state of mind was, even if he lied, especially if he lied, was crucial.

[00:09:25]

And the fact that Mueller didn't get it was a huge hole in his investigation.

[00:09:31]

You also think that this was a turning point for Trump once Trump won and being able to give written testimony only it kind of empowered him. How did that change him?

[00:09:45]

Well, there were really two things that went on here in the original defense team, led from inside the White House by Ty Cobb, who was who was a White House lawyer, and John Dowd and Jay Sekulow.

[00:10:00]

There was an attitude of cooperation with Mueller, and even more so, there was Trump's relative silence about Mueller.

[00:10:10]

People forget that, that for the first six months of the Mueller investigation or even more from May of twenty, seventeen to March of twenty eighteen, Trump didn't attack Mueller, but Giuliani's insight was once he took over in the spring of twenty eighteen was to turn Mueller into just another political opponent.

[00:10:33]

And Trump joined in that effort that Trump and Giuliani went after Mueller as if he were another Democrat in Congress and that energized Trump. It energized his base and it gave him the political confidence to know that this investigation was never going to end up with his departure from office. And that's what Giuliani did above all, which was turn the Mueller investigation into a political matter instead of a legal matter.

[00:11:07]

So, you know, you say that Mueller made two major mistakes. The first was was failing to get face to face testimony from Trump. Trump was able to keep it two written answers that were prepared by lawyers. The second failure, you say, is that Mueller convinced himself wrongly that he had to write a final report that was nearly incomprehensible to ordinary citizens and its legal conclusions.

[00:11:30]

And I'll just read the paragraph that, as you point out, most people found very confusing. So here it comes, because we were determined not to make a traditional prosecutorial judgment. We did not draw ultimate conclusions about the president's conduct, the evidence we obtained about the president's actions and intent to present difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, if we had confidence after a thorough investigation of the facts that the president clearly did not commit obstruction of justice.

[00:12:06]

We would so state, based on the facts and the applicable legal standards, we are unable to reach that judgment accordingly. While this report does not conclude that the president committed a crime. It also does not exonerate him.

[00:12:22]

To me, the most confusing line is where do you start? Where do you stop confusing. It's so confusing. But this part, especially if we had confidence after a thorough investigation of the facts, that the president clearly did not commit obstruction of justice we would so state. Anyways, what did you learn about why this summation was written in a way that you really have to parse his words and reconstruct sentences in order to understand what he's trying to say?

[00:12:52]

OK, let me just give you an important piece of background. There is a Justice Department policy. Many people are now familiar with it.

[00:13:00]

That began in the Nixon era, was reaffirmed in 2000 where it says under Department of Justice policy, it is inappropriate and against our internal procedures for a sitting president to be indicted. He is simply too important to the constitutional system to be a criminal defendant while he is president. And Mueller, who was an employee of the Department of Justice, felt obligated to follow that policy, which I happen to think is a correct policy. So so an indictment was off limits.

[00:13:32]

He couldn't indict Trump, but what Mueller concluded was because he couldn't indict Trump.

[00:13:39]

He also couldn't say Trump committed a crime because Trump would not have the opportunity to go to court and defend himself, that it would be unfair to say he committed a crime because there could never be a trial to resolve the issue. I thought that was ridiculous reasoning. I thought it gave Trump a kind of double benefit for this Justice Department policy.

[00:14:06]

He can't be indicted and you can't even say whether he did. He committed a crime. And that's the the policy behind that nearly incomprehensible paragraph that you read is that we are not reaching a final judgment. So we're not going to say whether he committed a crime. The tragedy of the Mueller investigation is they did this brilliant investigation proving that Donald Trump repeatedly obstructed justice far worse than Richard Nixon did in Watergate, far worse than Bill Clinton did in the Lewinsky matter.

[00:14:44]

You know, when when he told the FBI director not to investigate Michael Flynn, when he tried to get his White House counsel to fire Mueller, when he told his White House counsel to lie about whether he tried to get him to fire Mueller, all of that was egregious obstruction of justice.

[00:15:03]

It's all laid out in the Mueller report.

[00:15:06]

But then he doesn't finish the job and say what is obvious, I think, to any plain reader of of of the Mueller report who actually knows the law, which is that the president committed crimes repeatedly.

[00:15:20]

What's the point of investigating whether Trump committed a crime if the special prosecutor is unwilling to say that the president committed a crime, if the special prosecutor actually finds that the president committed a crime?

[00:15:35]

Terry, that's what's called a good question.

[00:15:38]

I don't I don't think there is a point to doing a criminal investigation if you can't say what the where the evidence leads and you know, those of us who who have practiced criminal law, those of us who've who've who've prosecuted obstruction of justice cases, we could read that evidence and see what a strong case it was.

[00:16:02]

But, you know, who cares what a bunch of journalists and lawyers think? The point was to know what Mueller thought. And Mueller pulled this punch ultimately.

[00:16:12]

And it it gave him it gave the president a free pass effectively on the fact that he repeatedly committed obstruction of justice.

[00:16:24]

What did Mueller's team have to say about the way the final report was written?

[00:16:30]

Well, you know, I think for good reason, they were very proud of the factual exposition in the Mueller report.

[00:16:40]

You know, it was it was a big bestseller when The Washington Post published it as a book.

[00:16:46]

My sense is like Stephen Hawking's A Brief History of Time, it was probably more precious than read.

[00:16:53]

But because it is very dense and very, you know, detailed, I mean, but God knows, I read it repeatedly and they should be proud of how they they established the extent of the Russian effort to help Trump during the twenty sixteen campaign.

[00:17:13]

You know, the social media campaign out of St. Petersburg, the Russian military effort to hack the emails and give them to WikiLeaks for distribution. It's a remarkable piece of investigation that that Mueller did.

[00:17:27]

I mean, this also, I think goes to Mueller's character.

[00:17:30]

You know, Mueller was deeply suspicious and afraid and found it deeply distasteful that he became a political figure. He did not want to be the case against Trump from the Democratic perspective.

[00:17:47]

He didn't like that there were Robert Mueller action figures. He didn't like that there were Mueller time t shirts and that he became the the the hope and dream of MSNBC. This was not how Mueller saw himself.

[00:18:03]

And and I think there was this institutional resistance which Mueller fostered of becoming a political figure. And I think that contributed to his just the fact report and his reluctance to draw conclusions. I think that was a flawed approach.

[00:18:23]

But it comes out of Mueller's background as someone who was deeply suspicious of the political process.

[00:18:31]

In your opinion, the Mueller report shows that Trump committed obstruction of justice not once, but several times. Are there other crimes that you think Mueller could have charged Trump with had it not been for the Office of Legal Counsel ruling that you can't indict a sitting president? No, I don't think there are other crimes, you know, I now know another thing Mueller did and refrained from doing was investigating Trump's background before the presidency and before his campaign. You know, one of the things that has been a source of mystery and curiosity throughout, you know, ever since Trump declared his candidacy is why he has this incredible solicitude for Vladimir Putin, why he refuses to criticize Putin, why he's so solicitous of Russia.

[00:19:23]

And many people have speculated that relates to some sort of financial dealings that Trump had and has with Russia.

[00:19:33]

Mueller didn't go there. Mueller didn't feel like that was within his jurisdiction. He didn't get Trump's tax returns. He didn't explore Trump's relationship with Deutsche Bank, where he got his financing for his projects. So I can't say that there is something there that some prosecutor might have found.

[00:19:52]

But when it comes to the Russia relationship during the 2016 campaign, you know, I one thing I think we have to be fair about is to say that when Trump said no collusion, there was no collusion.

[00:20:05]

I mean, there was no explicit quid pro quo between the Russian government and the Trump campaign when the candidate, Trump, provided something to the Russians and the Russians provided something to him.

[00:20:20]

What's evident is that Trump probably would have done it if he'd had the opportunity, but he didn't. He was just a candidate. He had nothing to give Russia at that point.

[00:20:31]

Russia had plenty to give him. You know, they they did the hacking of the emails. They did the social media campaign. There was the meeting in Trump Tower of June of two thousand sixteen. But in none of those cases could Mueller prove and I don't think there is anything to prove that there was any sort of meeting of the minds between Trump himself and the Russians.

[00:20:55]

Well, we need to take a short break here, let me reintroduce you if you're just joining us. My guest is Jeffrey Toobin, chief legal analyst for CNN and a staff writer at The New Yorker. His new book is called True Crimes and Misdemeanors The Investigation of Donald Trump.

[00:21:10]

We'll be right back after a short break. I'm Terry Gross and this is Fresh Air Support for NPR.

[00:21:16]

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[00:21:49]

Let's get back to my interview with Jeffrey Toobin, a staff writer at The New Yorker and CNN's chief legal analyst. His new book, True Crimes and Misdemeanors. The Investigation of Donald Trump is about the Mueller investigation and Trump's impeachment and how Trump managed to survive both. The book is based in part on Binz interviews with members of Mueller's staff, subjects of and witnesses in Mueller's investigation, Trump's legal team, Trump administration officials, members of Congress of both parties, congressional staffers and defense lawyers.

[00:22:21]

Toobin has been writing about Trump since the 2016 campaign. One of the things you explore in your book is why Mueller didn't get and didn't even ask for Trump's financial records. Why didn't he ask for the financial records?

[00:22:41]

It's important to remember that Robert Mueller was a special counsel and an employee of the Department of Justice, not an independent counsel like Kenneth Starr and Lawrence Walsh, who had an independent legal basis for their investigations.

[00:22:56]

So Mueller always had to worry about whether Rod Rosenstein, who was his supervisor, would allow him to expand his investigation and Trump's financial records would have been outside his original jurisdiction. Now, Mueller could have asked, but he didn't.

[00:23:14]

And one reason he didn't ask, in addition to worrying about whether what what Rosenstein would say is that he felt he had enough basis to investigate Trump's conduct in 2016 without going back to the ultimate question of his motives for dealing with Russia.

[00:23:34]

He felt like his desire to win the presidential election and interact with with Russia was enough. That's enough of a motive that Trump had.

[00:23:45]

Again, it's a questionable decision because the ultimate reason for why Trump has been so solicitous of Russia remains somewhat of a mystery to this day.

[00:23:57]

And Mueller very intentionally did not solve that mystery. I am somewhat more sympathetic to that decision than some of some of Mueller's other decisions, because, you know, it is somewhat different.

[00:24:09]

It is pretty far from his original jurisdiction. And there was plenty to investigate it about his conduct, about Trump's conduct in 2016 without the financial records. But it's another area where Mueller just didn't close the deal.

[00:24:28]

You say it's in part because Mueller was focused on Trump's intent more than his motive. I don't know that I really even understand the difference between the two. What and why that difference is significant legally?

[00:24:40]

Well, I mean, Kerry, that's that's a very legitimate question. And there is a difference. But I think it's it's somewhat arcane. Intent means simply the desire to complete a task. You know, you intend to, you know, rob a bank and you don't really have to know why some you know, someone really robbed a bank. You don't need to know that they had an unhappy childhood, that they needed money for, you know, to buy a house.

[00:25:11]

Those are questions of motive. Intent is a more narrow concept. And that's all you need to prove in a criminal case. You just need to prove that someone intended to do something wrong. You don't need to know why they intended to do something wrong. You know, most prosecutors like to do both. They like to get motive and intent. But as a technical, legal matter, in terms of how a judge instructs a jury, all you need is intent.

[00:25:40]

You don't need motive. And the prosecutors felt that the issue of Trump's finances was really about motive. It wasn't about intent.

[00:25:52]

Were you able to talk? To Robert Mueller for your book, No. I tried Terry, I tried Terry, so I did look, the last time he spoke publicly was, you know, his pretty disastrous testimony before the two House committees. And, you know, I think Robert Mueller aged a lot in this investigation.

[00:26:24]

The 72 year old Robert Mueller, who was appointed was very different from the 74 year old Robert Mueller who completed this investigation. And I think the public saw that in his testimony.

[00:26:37]

So Mueller writes his report. Then Attorney General William Barr gets the report before it's released to the press or to the public. And he declares that the report is a total exoneration of the president, which it wasn't. I'd say that was very clear in the report, but that's the really confusing paragraph.

[00:26:55]

So it was it was less than clear, although it was not a total exoneration, Barr offered.

[00:27:03]

You write about this. Barr offered to share his statement with Mueller before saying anything to the public. Mueller declined to read it in advance. Why?

[00:27:15]

You know, it was such an interesting moment. They think, you know, if we read the statement, Barr will say it's a Mueller agrees.

[00:27:25]

Mueller agrees with what I'm saying. We don't want to be associated with Barr statement. Barr statement is Barr statement. It's not our statement. So they say we don't want to read it. What they did not anticipate and their tragic failure was they didn't realize how Barr would distort their report and present it as a gift to Donald Trump.

[00:27:50]

What they also didn't know is that Barr's report would be followed by weeks of of the report not being released.

[00:28:00]

So all the public would know was Barr statement, what Mueller failed to recognize.

[00:28:07]

And again, I think this was a bigger failure in this investigation is that they didn't realize the political dynamics of what they were dealing with. They didn't realize that William Barr, whom Mueller had worked with in the George Herbert Walker Bush administration in the Justice Department, had turned into such a political hack, someone who was so determined to help Donald Trump at every opportunity and was willing to distort Mueller's words and to help the president.

[00:28:42]

It didn't even occur to Mueller that Barr was going to behave that way, and that's why he didn't read the statement. It was a tragic mistake. Again, perhaps somewhat understandable.

[00:28:57]

But not only did it mean that Barr statement went out unrefuted, it meant that it went unrefuted for weeks because, again, Mueller assumed that the report, or at least the summaries in the report would be released promptly. But Barr didn't release anything for weeks, which allowed the the conventional wisdom to harden that Mueller had found nothing.

[00:29:23]

OK, let's take another short break here and then we'll talk some more. If you're just joining us, my guest is Jeffrey Toobin. His new book is called True Crimes and Misdemeanors The Investigation of Donald Trump. We'll be right back. This is Fresh Air.

[00:29:37]

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[00:30:07]

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[00:30:28]

Let's get back to my interview with Jeffrey Toobin. His new book is called True Crimes and Misdemeanors The Investigation of Donald Trump. It's about the Mueller investigation and the impeachment and how Trump managed to survive both. Toobin is a staff writer at The New Yorker and CNN's chief legal analyst.

[00:30:47]

You've been continuing to write about Trump and legal issues surrounding the Trump administration, and you say that now Attorney General Barr is basically dismantling the Mueller investigation and you offer Roger Stone as an example and Michael Flynn.

[00:31:06]

It's unprecedented.

[00:31:10]

This has never happened with any attorney general in history where he keeps cherry picking individual cases that Mueller brought asking U.S. attorneys to conduct separate re investigations of what Mueller did and then undercutting his work, including, most incredibly of all, trying to overturn Michael Flynn's conviction, even though Michael Flynn pled guilty.

[00:31:45]

I mean, I searched in vain for an example of the Justice Department undercutting a conviction where a defendant in their own court, you know, when their own prosecutors obtained a guilty plea from him. It's one thing to discover new evidence and say, oh, well, it turns out the guy is innocent.

[00:32:05]

He pled guilty and they still tried to overturn the conviction and they're still trying to it.

[00:32:10]

Now, the D.C. Circuit is looking at it, is looking at it again.

[00:32:13]

And I thought there was a very revealing moment when Barr testified recently before the House Judiciary Committee, where he talked about, oh, I thought the sentence of of Roger Stone was excessive. That's why I intervened in that case and overruled the trial.

[00:32:30]

Prosecutors in the case and a couple of the members of the committee said, can you name any other case in the Justice Department where you intervened to get a lower sentence?

[00:32:45]

And in the two years or so that the bar had been attorney general, he couldn't think of another case. So we intervened in the only time to to lower Stone's sentence. And he tries to get Flynn's guilty plea overturned.

[00:33:01]

Plus, he's he's had John Durham, the U.S. attorney in Connecticut, investigating the whole Russia investigation with the clear instruction to find fault from the start. And he more or less said he's going to try to release that before the election. I mean, the politicization of the Justice Department is such an extraordinary tragedy and really unprecedented.

[00:33:27]

I mean, even Jeff Sessions, who was hardly, you know, a politically neutral character, wouldn't have done this. Alberto Gonzalez, who was essentially forced out of office for undue politicization.

[00:33:42]

He didn't do this. It's really grotesque what what Barr has done to that department. Yeah.

[00:33:48]

And to just continue what you referred to with an election coming up and people really worried about Russian interference in our election this time around like they did in 2016 and other countries interfering in our election. Instead of investigating that, Barr is investigating the origins of the initial FBI investigation into the ties between Trump's campaign and Russian interests.

[00:34:17]

And I think the understanding is that Barr is going to try to discredit the FBI and to discredit the Mueller investigation.

[00:34:25]

And and you said the report might be released before the election, which would be, you know, an October surprise that could be released in a timely way to come to work in Trump's favor.

[00:34:40]

That's a feature, not a bug, the whole focus of the Trump administration, tragically including the Justice Department, has all been about getting him re-elected. And that's true for this Durham report as well. And it's, you know, as someone you know, I worked in the Justice Department at a low level.

[00:35:00]

I was an assistant U.S. attorney. But I you know, I grew up in that culture. And there was a real culture in the Justice Department that, yes, the US attorneys are presidential appointees. And, yes, the attorney general is a presidential appointee. But there is a continuity and an apolitical nature to the work of much of the Justice Department, and that is just vanished under bar. And it's just painful to watch.

[00:35:31]

The Trump administration is now suing some states who have mail in ballots. And, you know, Trump keeps talking about how mail in ballots lead to immense voting fraud. What is William Barr's role in those lawsuits?

[00:35:49]

You know, there is a lot of experience in this country with mail in voting, whether it's in Colorado or Washington, which has virtually all mail in voting or, you know, extensive mail in voting in other states.

[00:36:04]

And obviously, there is going to be a great deal of it in this election because people don't want to stand around a voting booth in the age of kov it, instead of trying to make that system work and giving states the resources to process, you know, a greatly increased number of mail in ballots, they're trying to discredit the process and prevent states from allowing people to vote.

[00:36:31]

Now, this is somewhat mysterious to me because Republicans traditionally have used mail in voting more more than Democrats.

[00:36:39]

So it may it may be counterproductive politically, but I don't think you have to have a great deal of psychological insight to see that Trump is trying to set up a scenario where it appears that he loses and in fact, may actually lose. But he's looking to either challenge the results or at least disparage the results and say even if he loses that, it was only because of fraud. I think a lot of what's going on here is Trump trying to find an explanation for the reason he's losing this election and Barr tragically enabling this behavior.

[00:37:23]

Let's take another break here and then we'll talk some more. If you're just joining us, my guest is Jeffrey Toobin. He's the author of the new book True Crimes and Misdemeanors The Investigation of Donald Trump. We'll talk more after a short break. This is Fresh Air.

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We're only months away from Election Day and every week, or even every few hours, there's a new twist that could affect who will win the White House. To keep up with the latest, tune into the NPR Politics podcast every day to find out what happened and what it means for the election. Let's get back to my interview with Jeffrey Toobin, his new book is called True Crimes and Misdemeanors The Investigation of Donald Trump. It's about the Mueller investigation and the impeachment and how Trump managed to survive both.

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Toobin is a staff writer at The New Yorker and CNN's chief legal analyst. Well, Jeff, I can't let you go without asking you a question about the Supreme Court. Ruth Bader Ginsburg has been in and out of the hospital. She has a recurrence of cancer. What's happening behind the scenes on both sides? Are Democrats in a panic?

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And are is the Trump administration already looking back to its list in case she has to withdraw from her position because of health problems or something even worse happens?

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Yes and yes, yes, there's panic and yes, there are plans to replacer up to the moment that Trump leaves office, you know, the date always to keep in mind is February 13th, 2016. That was the day that Antonin Scalia died. And that afternoon, Mitch McConnell, the the majority leader of the Senate, said it's too late for Barack Obama to replace Scalia and we will not hold a vote.

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And they, in fact, didn't hold a vote. We are now in August of an election year, and McConnell has said very explicitly, we are going to fill any Supreme Court vacancy that comes up up until the last possible minute. And according to people I've spoken to, if there is a vacancy, the Republicans, if they are determined to jam it through, could do it in six to eight weeks. So just working backwards, there are still several more months in which the President Trump could fill, could fill a possible vacancy.

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I don't think he could go past January, you know, between January and January 20th, because there will be a new Senate after after the first of the year. But I think if you look at the determination that Mitch McConnell has put behind judicial confirmations of all kinds, but especially Supreme Court confirmations, and if you look at how much Trump believes cultivating his base, which cares deeply about the Supreme Court, is the key to his re-election, they are going to push this if it is at all feasible.

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So I think the the possibility of filling a Supreme Court vacancy is is going to continue almost until Election Day. Has McConnell offered any justification for his apparent hypocrisy? Yes, he has said, well, what was different with Obama was that there was the Senate was controlled by the opposite political party. So that's why there there was you know, he he wasn't allowed to fill the seat. But a Republican president could fill a seat when there was a Republican majority in the Senate.

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That's the distinction he draws. Is that a meaningful distinction? Absolutely not ridiculous. But it is the analogy or the the distinction he has drawn.

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And you know, what it really comes down to is.

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I have the power and I'm going to use it. McConnell says, and, you know, we will see I mean, he doesn't have a lot of room for error. There are only 53 Democrats or Republicans in the Senate. The hypocrisy is so egregious and so obvious that I don't think it's out of the question that some Republicans might get off the bus. But when you look at how the president has controlled the Republican Party and if you look at the way McConnell senators in his in his conference have fallen into line, I certainly wouldn't bet against Mitch McConnell filling a vacancy in six to eight weeks if he has the chance.

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So here's another Supreme Court question did Chief Justice John Roberts surprise you in some of his decisions at the end of this past term? Surprised the hell out of me totally. I mean, when you look at Roberts record on abortion, when you look at Roberts record on presidential power, the fact that he voted against the president's position on the abortion cases in Louisiana on the ACA case is just astonishing to me. I think something is going on with John Roberts.

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I mean, I you know, you can look at his background and figure out reasons why he might have voted this way, this way in these cases. But I think it's something more profound. I think Roberts is looking at the Trump presidency and recoiling at some level. He is not turning into a liberal. He is not turning into Sonia Sotomayor by any means. But he is someone who I think is saying the Trump Republican Party has gone too far and I'm not going to put up with it.

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And that's not going to apply in every case. And it may not apply if there's a Democratic president in office next year. But the departures that Roberts has made, whether it was the census case or voting against the president on DACA or especially the abortion case, strikes me as something more than a simple application of his prior jurisprudence.

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Jeffrey, you dedicate your new book about the investigations of Donald Trump, to quote my fellow journalists, I don't think you've done that before. I think it's typically dedicated to somebody in particular. So tell us why you dedicated the book to your fellow journalists.

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Well, I'm so glad you noticed that, Terry. Um, it was that was meaningful for me. This has been a very tough time for journalists.

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For the most part, it's a difficult time in a business sense. There are a lot of newspapers that have struggled and gone out of business, a lot of layoffs. And I don't have a particular answer for that. But this has also been a time when people have not just criticized the results of journalism, but the very essence and motivations and and character of journalism. And yes, obviously, that starts with the president. But it's not only the president.

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And I just wanted to be able to add my voice to those who say journalism matters. Journalism is is a force for good in the world. Journalism is a is a flawed institution, but is one that is indispensable to a healthy democracy. And I'm proud to be a journalist. And the dedication was one way of of trying to respond to a very difficult business and political climate in which my journalists find themselves and certainly CNN, where your legal analyst has been attacked repeatedly by the president.

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And one thing I want to emphasize is in many respects, the Trump presidency has been a golden moment for journalism. I am so proud of my colleagues at CNN and how have we have responded and not responded to what the president has done and the journalism that has come out in The New York Times and the in The Washington Post has been so terrific during this period. But there is also a sense of of of peril and sometimes physical peril.

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I mean, there is anger out there stoked by the president that has put a lot of us in physical jeopardy. And a lot of us have had very ugly experiences relating to this period in journalism. And that's, you know, to say that's disturbing is an understatement. And my dedication is just a way of offering a small measure of moral support to all of us who try to do this for a living.

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Jeffrey Toobin, it is always a pleasure to talk with you. Thank you so much. And I wish you and your family good health.

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You too, Terry. Thanks. Jeffrey Toobin, whose new book is called True Crimes and Misdemeanors The Investigation of Donald Trump. Tomorrow on Fresh Air. My guest will be Andy Crowell, Rolling Stone's Washington bureau chief. His latest article is about how the Trump campaign is trying to suppress voters by blocking states attempts to expand mail in ballots while also trying to invalidate existing state mail and voting policies. The Trump campaign and the Republican National Committee have filed lawsuits against states fighting the expansion of mail and voting.

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Kroll has investigated who is funding these efforts. I hope you'll join us.

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Fresh Air's executive producer is Danny Miller, our technical director and engineer is Audrey Bentham. Our interviews and reviews are produced and edited by Amy Salit, Phyllis Myers, Roberta Shorrock, Sam Briger, Lauren Krenzel, Heidi Saman, Teresa Madden.

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They are Challoner and Joe Wolfram, our associate producer of digital media is Molly KVI esper. Seth Kelly directed today's show.

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I'm Terry Gross.