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Legal Analyst Jeffrey Toobin Explains The 'Tragedy' Of The Mueller Investigation

Six months after the conclusion of President Trump's impeachment, CNN legal analyst and New Yorker staff writer Jeffrey Toobin says special counsel Robert Mueller's investigation into Russian interference in the 2016 election was fundamentally flawed.




This is FRESH AIR. I'm Terry Gross. 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 5, but that seems like a long time ago, too. 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. Toobin's new book, "True Crimes And Misdemeanors: 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 Toobin's 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.

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 OJ Simpson. 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.

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?

JEFFREY TOOBIN: 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. 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.

GROSS: 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?

TOOBIN: 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. So there were an abundance of I don't knows I 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. 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. 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.

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

TOOBIN: Well, this, to me, was in many respects the most interesting part of the story. 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. And just to refresh people's memory, Mueller became special counsel in May of 2017. By the end of 2017, 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. And Trump, you know, in characteristic fashion, publicly had said a lot of different things about an interview. He's like, yeah, I'll talk to Mueller. I have nothing to hide. But then he went back on that. 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 2018, 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. 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. Sekulow 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. 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.

So the January date was canceled. Dowd said he's not going to do it. At that point, Trump, who was, you know, 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. This was the time that, if Mueller really wanted to issue a subpoena, he could have done it because 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. 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.

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, kicked the can further down the road. And ultimately, by the fall of 2018, Giuliani told Mueller that Trump would only answer written questions, take it or leave it. 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. 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 that too much time had passed and he couldn't start a legal fight over a subpoena.

GROSS: 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.

TOOBIN: To be sure. 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 2016 campaign? 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? The issue of Trump's 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. And the fact that Mueller didn't get it was a huge hole in his investigation.

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

TOOBIN: 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 a White House lawyer, and John Dowd and Jay Sekulow, there was an attitude of cooperation with Mueller. And even more so, there was Trump's relative silence about Mueller. People forget that, that for the first six months of the Mueller investigation or even more - from May of 2017 to March of 2018 - Trump didn't attack Mueller. But Giuliani's insight was - once he took over in the spring of 2018 - was to turn Mueller into just another political opponent. 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.

GROSS: Well, let's take a short break here. 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.


GROSS: This is FRESH AIR. 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.

So, you know, you say that Mueller made two major mistakes. The first was failing to get face-to-face testimony from Trump. Trump was able to keep it to 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 in its legal conclusions.

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 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, 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.

To me, the most confusing line is...

TOOBIN: (Laughter) Where do you start, Terry?

GROSS: Where do you start?

TOOBIN: It's so confusing.

GROSS: 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?

TOOBIN: OK. Let me just give you the important piece of background. There is a Justice Department policy, many people are now familiar with it, 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 an indictment was off-limits. He couldn't indict Trump. But what Mueller concluded was because he couldn't indict Trump, 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. He can't be indicted. And you can't even say whether he did - he committed a crime. And that's 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. You know, 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. It's all laid out in the Mueller report. But then he doesn't finish the job and say what is obvious, I think, to any plain reader of the Mueller report who actually knows the law, which is that the president committed crimes repeatedly.

GROSS: 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?

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


TOOBIN: 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, you know, have practiced criminal law, those of us who've prosecuted obstruction of justice cases, we could read that evidence and see what a strong case it was. 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, and it gave him - it gave the president a free pass, effectively, on the fact that he repeatedly committed obstruction of justice.

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

TOOBIN: Well, you know, I think for good reason they were very proud of the factual exposition in the Mueller. You know, it was a big bestseller when The Washington Post published it as a book. My sense is, like Stephen Hawking's "A Brief History Of Time," it was probably more purchased than read, 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 established the extent of the Russian effort to help Trump during the 2016 campaign - 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 Mueller did.

I mean, this also I think goes to Mueller's character. 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. He didn't like that there were, you know, Robert Mueller action figures. He didn't like that there were Mueller time T-shirts and that he became, you know, the hope and dream of MSNBC. This was not how Mueller saw himself. 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 reports and his reluctance to draw conclusions. I think that was a flawed approach, but it comes out of Mueller's background as someone who was deeply suspicious of the political process.

GROSS: 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?

TOOBIN: No. I don't think there are other crimes. You know, I - now, 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. And many people have speculated that relates to some sort of financial dealings that Trump had and has with Russia. 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. But when it comes to the Russia relationship during the 2016 campaign, you know, one thing I think we have to be fair about is to say that when Trump said no collusion, there was no collusion. 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.

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. Russia had plenty to give him. You know, they did the hacking of the emails. They did the social media campaign. There was the meeting in Trump Tower of June of 2016. 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.

GROSS: 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." We'll be right back after a short break. I'm Terry Gross, and this is FRESH AIR.


GROSS: This is FRESH AIR. I'm Terry Gross. 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 Toobin's 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. 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?

TOOBIN: 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. 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. And one reason he didn't ask, in addition to worrying about whether - 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. He felt like his desire to win the presidential election and interact with Russia was enough. That's enough of a motive that Trump had.

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, and Mueller very intentionally did not solve that mystery. I am somewhat more sympathetic to that decision than some of Mueller's other decisions because, you know, it is somewhat different. It is pretty far from his original jurisdiction. And there was plenty to investigate 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.

GROSS: 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. I don't know why that difference is significant legally.

TOOBIN: Well, I mean, Terry, that's a very legitimate question. And there is a difference, but I think it's somewhat arcane. Intent means simply the desire to complete a task. You know, you intend to rob a bank, and you don't really have to know why some, you know, someone really robs 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. 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. You don't need motive. And the Mueller prosecutors felt that the issue of Trump's finances was really about motive. It wasn't about intent.

GROSS: Were you able to talk to Robert Muller for your book?

TOOBIN: No. I tried, Terry. I tried, Terry, so hard.

GROSS: I'm sure you did.


TOOBIN: 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. 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.

GROSS: 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. So it was less than clear, although it was not a total exoneration. Barr offered - 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?

TOOBIN: You know, it was such an interesting moment. They think, you know, if we read the statement, Barr will say it's - Mueller agrees. Mueller agrees with what I'm saying. We don't want to be associated with Barr's statement. Barr's statement is Barr's 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. What they also didn't know is that Barr's report would be followed by weeks of the report not being released. So all the public would know was Barr's statement.

What Mueller failed to recognize - 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 W. - Herbert Walker Bush administration and 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 to help the president. 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. But not only did it mean that Barr's 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 conventional wisdom to harden that Mueller had found nothing.

GROSS: 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.


GROSS: This is FRESH AIR. 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.

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

TOOBIN: It's unprecedented. 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. I mean, I searched in vain for an example of the Justice Department undercutting a conviction where a defendant in their own core, 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. He pled guilty. And they still tried to overturn the conviction. And they're still trying to it. Now the D.C. Circuit is looking at it again. 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 Roger Stone was excessive. That's why I intervened in that case and overruled the trial 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? And in the two years or so that Barr had been attorney general, he couldn't think of another case.

So he intervenes - and the only time - to lower Stone's sentence. And he tries to get Flynn's guilty plea overturned. Plus, 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. 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, he didn't do this. It's really grotesque what Barr has done to that department.

GROSS: Yeah. 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. And I think the understanding is that Barr is going to try to discredit the FBI and to discredit the Mueller investigation. And you said the report might be released before the election, which would be, you know, an October surprise. It could be released in a timely way to work in Trump's favor.

TOOBIN: 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 reelected. 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. I was an assistant U.S. attorney. But, you know, I grew up in that culture. And there was a real culture in the Justice Department that, yes, the U.S. 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 has just vanished under Barr. And it's just painful to watch.

GROSS: 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, you know, immense voting fraud. What is William Barr's role in those lawsuits?

TOOBIN: 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. 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 COVID. 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.

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

GROSS: 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.


GROSS: This is FRESH AIR. 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.

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

TOOBIN: Yes and yes. Yes, there's panic. And, yes, there are plans to replace her up to the moment that Trump leaves office. You know, the date always to keep in mind is February 13, 2016. That was the day that Antonin Scalia died. And that afternoon, Mitch McConnell, the majority leader of the Senate, said, it's too late for Barack Obama to replace Scalia. And we will not hold a vote. 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 President Trump could fill a possible vacancy. I don't think he could go past January - you know, between January and January 20 - because there will be a new Senate 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 reelection, they are going to push this if it is at all feasible. So I think the possibility of filling in a Supreme Court vacancy is going to continue almost until Election Day.

GROSS: Has McConnell offered any justification for his apparent hypocrisy?

TOOBIN: 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 was - you know, 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. That's the distinction he draws. Is that a meaningful distinction? Absolutely not. Ridiculous. But it is the analogy or the distinction he has drawn. And, you know, what it really comes down to is, 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 - 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's senators 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.

GROSS: 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?

TOOBIN: 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 DACA case, it is just astonishing to me. I think something is going on with John Roberts. I mean, I - you know, you can look at his background and figure out reasons why he might have voted these - 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. 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.

GROSS: 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.

TOOBIN: Well, I'm so glad you noticed that, Terry. It was - that was meaningful for me. This has been a very tough time for journalists. 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 character of journalism. And yes, obviously, that starts with the president, but it's not only the president.

And I just wanted to be able to add my voice to those who say, journalism matters. Journalism is a force for good in the world. Journalism is a flawed institution but is one that is indispensible to a healthy democracy. And I'm proud to be a journalist. And the dedication was one way of trying to respond to a very difficult business and political climate in which my - journalists find themselves.

GROSS: And certainly CNN, where your legal analyst has been attacked repeatedly by the president...

TOOBIN: 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 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 in The Washington Post has been so terrific during this period.

But there is also a sense of peril and sometimes physical peril. 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 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.

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

TOOBIN: You, too, Terry. Thanks.

GROSS: Jeffrey Toobin's new book is called "True Crimes And Misdemeanors: The Investigation Of Donald Trump."

Tomorrow on FRESH AIR, my guest will be Andy Kroll, 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-in voting policies. The Trump campaign and the Republican National Committee have filed lawsuits against states fighting the expansion of mail-in voting. Kroll has investigated who is funding these efforts. I hope you'll join us.


GROSS: 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, Therese Madden, Thea Chaloner and Joel Wolfram. Our associate producer of digital media is Molly Seavy-Nesper. Seth Kelley directed today's show. I'm Terry Gross.


Transcripts are created on a rush deadline, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of Fresh Air interviews and reviews are the audio recordings of each segment.

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