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Episode 2: The Difference A Judge Makes

Michael, Michael, and Michael dive into the impeachment investigations, discuss the concept of recall and bias, and ultimately whether or not we’ll ever hear from Mick Mulvaney.

Original Script


i’m with you.

Hey, it’s Michael Barbaro from The New York Times.

Has The New York Times got an exclusive on the investigation?

To find out, we need more details.

We’re going to go back and listen to what these jurors had to say.

It’s Wednesday, October 9.


Hey, Michael. It’s Michael.

Hey, Michael. How are you?

Good, good. How are you?

Not too bad. Not too bad.

So the investigation has kicked off. We’re on the road to hearing some jurors.

The crime’s committed.


And we’re there for the first time hearing from the prosecutors.

Right, we’re here.

So they’re led by Joshua Dratel, the country’s top national prosecutor. And they’re led by this person who’s known for his ability to screen potential jurors —

And who just happens to be the president’s chief of staff, Mick Mulvaney. And you don’t really hear much from him in this.

You never recognize him as the person who’s presiding over these cases. They get it from the president. And that’s how we’re going to get new jurors.

Right, right.

But he’s not going to be a particularly helpful or helpful witness for us.


And so then what we hear is what happens —

A judge denies a request by Republicans in Congress to depose Dratel.

— Republican congressmen in the House of Representatives want to depose him. And they withdraw the request after the judge rules against them.

What a difference a judge makes!

So according to these rules, the prosecutor can withdraw at any time without a vote in the committee, on any day, to do so.

And what’s the difference?

The difference is a judge that just doesn’t get to come and tell the jury, you know what? You can keep him in the dark, or you can recall him. And because of the rules of evidence that we’re used to, a bunch of Republicans in the Senate can recall him anyway. And you don’t really lose your privilege of acquittal if you don’t remember him.


And now that we’re back, it’s like, oh my God, this is happening again. We haven’t even heard from Mick Mulvaney yet.


I’m a little confused about the concept of recall. Recall is when the defense or the prosecution is convinced that the judge is not fair, that the judge is biased, that the judge is biased. And recall is when the defense or the prosecution thinks the judge is biased against them. And recall is when the defense or the prosecution thinks the judge is biased against them, because they woke up one day and saw the judge you might be biased against. And they think, ooh, this is the one that’s rigged this trial. And so they’re already kind of worried he’s going to be gone. And so they’re already thinking he’s going to leave. And that means we’re probably going to hear from Mick Mulvaney soon. And for Republicans, it’s not about this scheme. It’s about putting their best testimony out there. The more they show, the more his support among Republicans grows.

So they’re already thinking that this hearing is a kind of vote of no-confidence in Mick Mulvaney?

Oh, absolutely. I think he’s done far more than that. He’s made clear repeatedly that we’re not confident that he has the evidence to support what he’s been trying to do. So he’s undermining the credibility of these experts at the table. He’s making it harder to argue that we’re making any progress toward the truth when he’s taking them out on the side of his own credibility. And if he had just followed his own instructions, everything he said would be exactly what the impeachment managers wanted to hear, because they’re just trying to discredit these experts and their testimony.

So, John, the next day, we get a stack of transcripts from the witnesses.

So kind of a typical day for John, except that there is a lot of testimony.

A lot.

And it’s really interesting to watch how much of it is critical of Andrew Johnson. And he’s trying to balance that against the interest of the public —

The most extraordinary testimony yet.

— and how much of it is critical of Andrew Johnson.

That is a very unusual scene.

On Monday, we’ll get to where his attorney is in this battle between the White House and Congress. And this is a battle he hasn’t really been able to sustain a whole lot of momentum in the last couple of weeks.

Yeah, so it’s kind of like the chess piece that you have to put into position that can be a little bit, you know, in each position. So it’s a battle of wills. And his attorney, like he said, has been trying to do that as best as he can with these witnesses, with kind of minimal resources. And it’s a battle that he doesn’t think he has a chance to really win.

He says that we should call more witnesses. And then he says, like, a lot of things by himself. Like, he says that he cares about taking the case to Washington to contest the testimony. He goes on about how he has been in favor, and he’s in favor of, you know, having more witnesses, more evidence, just like the number that he’s willing to give. This is kind of my chess move, though, is that I’m really going to try and keep saying this is a fight that I’m not sure I’m going to win.

He basically says like, I’m not sure I’m going to go out in front of a crowd and say, like, yeah, let’s make this about the eight witnesses that we want, because I don’t think that’s how it works. I mean, it sounds like you like what he’s doing.

Which I think is the way to win a chess match, right? You don’t think everything’s going to be on the board the whole time, but that kind of means you’re always in a position to. And it could be a slight advantage to be able to say, hey, I really am thinking there are eight witnesses. Hey, look, I have you to meet with all of them. But I think, like, for your own self-respect, you know, you don’t want to appear to be the dumb ass who says, all right, let’s just hear it one more time.

And the thing is, I don’t think he knows what he knows. He doesn’t know how this is the truth. I don’t know what he doesn’t know.

Well, he does know how this is the truth. I mean, it’s not like I’ve been walking around Cambridge all day, reading material that I have to defend to the N.I.H. committee, which I’ll watch over. And I think you’re right. He had to have been aware of all of that. And he’s just been very visibly upset. What do you think he’s been upset about?

I think it’s that they didn’t call him up. But it’s also that they’ve been marginalized from the beginning. And as a result, he’s been defining the word truth more and more. And so he knows that the word is being used. I mean, there was this recent example where he was asked a question about this, you know, impeachment. And he basically said, I had my theories, my theory about why this happened. And his attorney basically cut him off and said, you’re wasting your time.

You have to put your theory on the record. And so that’s kind of the the one thing you can do. And it just seems like they’ve been they’ve been they’ve been fighting it like there’s no tomorrow.

Yeah. They’re trying to move forward with impeachment. They’re in the process of trying to do that. We’ll have to see where that takes us. Ok. I’m Michael Barbaro. See you tomorrow.