Sunday on ABC’s “This Week,” former U.S. Attorney for the Southern District of New York Preet Bharara, who was fired by President Donald Trump earlier this year, said he believed there was “absolutely evidence to begin a case” for obstruction of justice against Trump.
STEPHANOPOULOS: So I want to ask you about your encounters with President Trump later, but let’s begin with that hearing. You were in the hearing room…
BHARARA: I was.
STEPHANOPOULOS: — on Thursday. We have a picture of you right behind James Comey right there. And you’ve heard the president since coming out and saying — claiming vindication from James Comey, essentially, though, saying that James Comey lied under oath.Did he?
BHARARA: It doesn’t appear that way. I mean you’ve got someone who has a reputation for probity, someone who has a reputation for telling the truth, someone who has contemporaneous notes of what happened in these meetings and in these conversations.On the other hand, I think a lot of people will tell you that the president himself sometimes makes accusations that turn out not to be true. I think he seems to have done that in a Tweet this morning. And when it comes down to who’s telling the truth and who’s not, I think most people would side reasonably with James Comey.
STEPHANOPOULOS: You talked about the Tweets. The president did put out a Tweet this morning. I want to put it up on the screen right now. “I believe the James Comey leaks will be far more prevalent than anyone ever thought possible. Totally illegal. Very cowardly.” What’s the lie there?
BHARARA: There’s a — there’s speculation and an accusation that there are other leaks and that’s going to come out at some point in the future. I think there have been other accusations that are made in a haphazard and unsubstantiated way by the president, including that his office was tapped or wiretapped and no evidence of that has ever materialized.
He suggested on at least one occasion that maybe he had recorded conversations, refuses to answer questions about whether or not that is true.
But I think the point is that accusations made in the heat of the moment in 140 characters on Twitter, based on the track record and history, are not to be taken very seriously.
STEPHANOPOULOS: His whole team is doubling down on this idea that the leak that James Comey admitted to could be illegal. Corey Lewandowski told me on Friday on “GMA” that it’s possible that he could be prosecuted for this.
Anything illegal in that leak to “The New York Times?”
BHARARA: Yes. So I’m not in the business of making legal pronouncements on what is — what’s legal or what’s criminal anymore. But I will say, it sounds like more of a distraction.
First of all, I think nothing that was in the memo or in the conversations that he had with his friend at Columbia Law School was classified.
Second, I don’t understand what the privilege argument is. You know, the president’s team fully was aware that the memo was going to be discussed and the conversations were going to be discussed at the hearing and had the opportunity, when many reporters asked if they would invoke executive power to try to prevent some of that from being talked about and they declined that opportunity.
So I think the main point that people should be focusing on, from what I can see, is that you have — you have uncontroverted from someone who was under oath that on at least one occasion, the president of the United States cleared a room of his vice president and his attorney general, and told his director of the FBI that he should essentially drop a case against his former national security adviser.
And whether or not that is impeachable or that’s indictable, that’s a very serious thing. And I’m not sure that people, you know, fully get that the standard is not just whether something is a crime or not, but there should — you know, whether or not it can be charged as a crime or Congress will impeach, it’s a very serious thing. And there’s a lot to be frightened about and a lot to be outraged about if you have a president who, A, may have done it, although I know he denies it, but he hasn’t done it under oath yet. And, B, he seems to suggest that even if he had done it or said words to that effect, there’s nothing wrong with that.
And you have other people who seem to be excusing it.
That’s an incredibly serious thing if people think that the president of the United States can tell heads of law enforcement agencies, based on his own whim or his own personal preferences or friendships, that they should or should not pursue particular criminal cases against individuals.
That’s not how America works.
STEPHANOPOULOS: I want to dig into that more in a minute.
But let me just stay on this leak for just a second.
Even if the going to a friend at “The New York Times” wasn’t illegal, was it a violation of FBI regulations, which would, in some cases, people say, require — before that revelation — getting advanced authorization from the FBI?
BHARARA: Yes, you know, I don’t know. It doesn’t seem to be. You know, one could make the argument that it was not the best way to go about trying to bring this story into the open. I mean obviously, Jim Comey was comfortable, after being called to testify, to testify about the memos and about the conversations. And it was just his recollection.
So, you know, I don’t really see what the major issue is. It may be that there was a better way to bring the information out, like he did in the hearing ultimately.
STEPHANOPOULOS: One of the other things the president’s supporters have said is that James Comey, if he really thought something was wrong in that meeting you just referred to, that Oval Office meeting where everybody else was kicked out, he should have said no to the president right there or he should have reported this evidence of a crime back to the FBI or the Justice Department.
BHARARA: Yes, but the — but — as I understand it, he did say no. And the no that he said was that — to himself and to his people that we were not going to do what the president had asked. He wasn’t going to drop the investigation.
So I think, you know, he decided in his own mind he wasn’t going to follow the direction of the president. And he says he took it as a direction and that was that.
STEPHANOPOULOS: One other thing on James Comey. He talked about that encounter with Loretta Lynch and the email investigation. She wanted it described as a “matter.” He wanted it described as an investigation.
He said that made him queasy.
Does that make you queasy, too?
BHARARA: Well, it wasn’t said to me. I think if you’re — if it’s true and you’re listening to it as a third party, it’s not the greatest instruction in the world.
But if I could just say one other point on this issue of whether or not Donald Trump knew what he was doing, and I saw, I think, over the weekend, that Paul Ryan, who is, I think, in line to be president of the United States — he’s in the succession line — has been trying to excuse this behavior — again, putting aside whether it’s obstruction or impeachable — that the president of the United States is new to this and he’s new to protocols makes very, very little sense when the president became the president, in part, by campaigning at rally after rally after rally that I saw and Americans saw, on the issue of whether or not it was appropriate for the former attorney general, Loretta Lynch, to have a meeting on a tarmac with Bill Clinton.
So he very well knew what the optics of that were and what the protocols were. And even though there is no evidence and no one has come forward to say anything untoward was discussed on that airplane at the tarmac, when an ongoing investigation was underway with respect to Hillary Clinton, he nevertheless said this is a reason why you should vote for me and not for that person.
And for people to turn around and say now that there is evidence that the president of the United States himself had a private conversation, after kicking other high officials out of the room and told his FBI director confidentiality to do something about a criminal case that’s pending, I think that’s a big deal. And it can’t be excused as simply being a novice or new.
STEPHANOPOULOS: The president’s defenders, like Alan Dershowitz, say there’s no grounds for obstruction. You talked about that. And he, in fact, says that presidents have the constitutional right to fire FBI directors and investigations as much as they want.
One of the president’s attorneys, Jay Sekulow, is coming up next. He says there’s no there there, no basis for obstruction.
You are a former prosecutor. Is there evidence there that — to begin a case for obstruction?
BHARARA: I think there’s absolutely evidence to begin a case. I think it’s very important for all sorts of armchair speculators in the law to be clear that no one knows right now whether there is a provable case of obstruction. It’s also true I think from based on
what I see as a third party and out of government that there’s no basis to say there’s no obstruction.
And this point on whether or not the president has legal authority to fire or to direct an investigation, I don’t really get it. It’s a little silly to me. The fact that you have authority to remove someone from office doesn’t automatically immunize that act from criminal responsibility.
And I’ll give you an example of something from a different context. If it were to be true, and this is all made up for the sake of argument, if it were to be true that Michael Flynn offered a million dollars to Donald Trump and said I’m going to give you this million dollars and I’m giving it to you because I want you to fire Jim Comey and then Donald Trump fired Jim Comey, which everyone agrees he has the absolute authorization and authority to do, that would be an open and shut federal criminal case. It’s a quid pro quo and he be could charged (inaudible) president of the Unitd States.
So this argument that you keep hearing on the TV shows that the mere fact that the president can fire an official at will doesn’t solve the problem.
STEPHANOPOULOS: In the end, though, as a prosecutor, what gets this beyond a he said/he said case?
BHARARA: I don’t know if there’s other evidence. I mean, we are heard people talk about
tapes and there’s a lot of cute game playing about whether or not there are tapes. That could prove it. But you have this in court all the time. And look at the surrounding circumstances and the indicia of truthfulness and those things include contemporaneous statements to other people. They include the track record of the witness. They include whether or not one of the hes in the he said/he said has a track record for lying or not both on the air and in legal proceedings like depositions, and I believe there is such a track record with respect to one of the parties.
So you make your arguments as you can. And it may be the case, like I’ve said, that no ultimate actual legal proceeding can be brought. I think people should keep an open mind about that.
And I’m the first to say it, and the only people, and we’ve going to make that decision, are the team that Bob Mueller is assembling.
STEPHANOPOULOS: So, are you pretty confident now that there’s no question that President Trump will be investigating for obstruction by Bob Mueller?
BHARARA: I don’t know. I’m not part of that team, but it seems – it seems reasonable that if Bob Mueller is looking at everything that you would expect him to look at, and good prosecutors look at everything. And this would seem to be one of those things that he was looking at.
STEPHANOPOULOS: How far does the scope of a special prosecutor go in a situation like this? How far beyond the questions, the underlying collusion charges with Russia, the question of obstruction, is this something that could eventually get into the Trump Corporation businesses? Does the special counsel have that kind of leeway?
BHARARA: I don’t know where he’ll go. I think that Bob Mueller by reputation is – proceeds with caution and doesn’t get over his skis ever, so I think he’ll have confidence that there will be a responsible investigation that goes where it needs to go and not beyond.
STEPHANOPOULOS: And we heard the president say he wanted to testify, or willing to
testify under oath. Any doubt that Bob Mueller would take him up on that.
MUELLER: No, I think the way you do any kind of investigation that involves somebody who is a high official is you gather all the other evidence. We did investigations like this of high officials in New York State all the time. And what you do is you painfully and painstakingly gather evidence from as many witnesses as possible and documents and everything else and at the end of that typically, then, you interview the principal.
STEPHANOPOULOS: You had several encounters with President-elect Trump before you were fired by President Trump back in March starting at the — during the transition he invited to you
Trump Tower, asked you to stay on as U.S. attorney.
BHARARA: He did.
STEPHANOPOULOS: And then he followed that up with two phone calls as president-elect.
BHARARA: He did.
STEPHANOPOULOS: What happened in those phone calls?
BHARARA: So they’re unusual phone calls and it sort of – when I’ve been reading the stories of how the president has been contacting Jim Comey over time, felt a little bit like deja vu. And I’m not the FBI director, but I was the chief federal law enforcement officer in Manhattan with jurisdiction over a lot of things including, you know, business interests and other things in New York.
The number of times that President Obama called me in seven-and-a-half years was zero. The number of types I would have been expected to be called by the president of the United States would be zero because there has to be some kind of arm’s length relationship given the jurisdiction that various people had.
STEPHANOPOULOS: What did he say?
BHARARA: So he called me in December, ostensibly just to shoot the breeze and asked me how I was doing and wanted to make sure I was OK. It was similar to what Jim Comey testified to with respect to a call he got when he was getting on the helicopter. I didn’t say anything at the time to him. It was a little bit uncomfortable, but he was not the president, he was only the president-elect.
He called me again two days before the inauguration, again seemingly to check in and shoot the breeze and then he called me a third time when he — after he became president and I refused to return the call.
STEPHANOPOULOS; That you didn’t take because he was president.
But on those other phone calls James Comey talked about the president trying to develop what he called a patronage relationship. Is that what you think was happening with you?
BHARARA: That’s not the word I use. I was in discussions with my own folks, and in reporting the phone call to the chief of staff to the attorney general I said, it appeared to be that he was trying to cultivate some kind of relationship.
And it may be hard for viewers of yours to understand if you’re a layperson and not in the Justice Department, you know, what’s wrong with that. The CEO of a company wants to call a field manager somewhere in the country because he thinks he’s an up-and-comer, what’s wrong with that?
The problem is the Justice Department is different. And for the same reasons that Donald Trump emphasized how it looked when there was that tarmac incident and you had a private conversation between someone who had an interest in an investigation and the person who was responsible for, you know, advancing or ending that investigation, it’s a very weird and peculiar thing for a one-on-one conversation without the attorney general, without warning between the president and me or any United States attorney who has been asked to investigate various things and is in a position hypothetically to investigate business interests and associates of the president.
STEPHANOPOULOS: Trump Corporation based in New York.
BHARARA: Hypothetically there is the authority to investigate all sorts of interests relating to a president which is why there are strict guidelines in place about what can or cannot be talked about.
Now I’m not saying that he was going to ask me about a case, although there was some evidence in the record now that after a period of time, given the Jim Comey testimony, there’s some evidence that Donald Trump didn’t think anything of asking a high level law enforcement official to take a particular action that he wanted for himself on a criminal case.
STEPHANOPOULOS: And then when you were actual — when he was actually president, you refused to take the call and I guess the next day you were fired.
BHARARA: So the call came in. I got a message. We deliberated over it, thought it was inappropriate to return the call. And 22 hours later I was asked to resign along with 45 other people.
STEPHANOPOULOS: And some Democrats, notably Elizabeth Warren, connecting that to the fact that you did have jurisdiction over Trump Tower. Do you think there’s any connection?
BHARARA: I’m not drawing the connection. I’ve lived long enough to know that anything is possible and we’re seeing a lot of things going on now with respect to accusations that Jim Comey made under oath in a congressional hearing. So I don’t know.
To this day i have no idea why I was fired. You know, it doesn’t bother me. I’m living a great good life, and very happily. But I have no idea.
STEPHANOPOULOS: Preet Bharara, thanks for coming in today.
BHARARA: Thank you.