BOB GARFIELD: From WNYC in New York, this is On the Media. Brooke Gladstone is away this week. I’m Bob Garfield.
We begin this week with a bulletin from the front lines of the War on Truth, the announcement from the president's new attorney Rudolph Giuliani that President Trump may not submit to an interview with Special Counsel Robert Mueller.
ERIN BURNETT/CNN: He told the Washington Post he’s worried the interview may not happen. It, it could be a perjury trap if that's the whole point because he said, quote, “truth is relative.”
BOB GARFIELD: Actually, some truth is objective. It’s called “fact.” Despite a notorious White House claim to the contrary, there is no such thing as an alternate fact. But Giuliani's invocation of “relative truth” may foreshadow the president’s legal strategy of undermining the legitimacy of the entire Mueller probe and of actual facts gleaned in the investigation. As Giuliani had explained on CNN a week ago, sitting down with Mueller can only expose the president to danger.
RUDY GIULIANI: Because you've got people that are going to ask him questions about, what did you say to him, what did you say to him.
CHRIS CUOMO: Unh-unh.
RUDY GIULIANI: And you've got Comey coming forward who will lie… It’s like Martha Stewart. Martha Stewart never would have gone to jail if she hadn't gone and testified. What do you
CHRIS CUOMO: She lied. She, she lied. I covered that case.
BOB GARFIELD: Wait, if the president doesn’t lie, and Giuliani promised he wouldn’t, where is the trap, exactly?
Dahlia Lithwick, who writes about the courts and the law for Slate, thinks the answer is simple. Based on his history, his habits his ego and his insistent alternate truth of a broad conspiracy against him, Trump can't possibly not lie. Dahlia, welcome back to On the Media.
DAHLIA LITHWICK: Thank you for having me.
BOB GARFIELD: One hardly knows how to begin unpacking Giuliani-speak but let’s begin with this whole notion of a “perjury trap” which Trump’s previous lawyers have raised, as well. What are the ways that he could be trapped?
DAHLIA LITHWICK: Donald Trump's truth happens in a kind of a fluid forward-moving continuum and so he can say, oh, I never, you know, knew anything about the Stormy Daniels agreement, and then just a few short days later Giuliani confirms it and then Trump himself confirms it or there’s a filing that confirms it. And so, I think the idea of the trap here is, look, you fired Jim Comey, you said [LAUGHS] contemporaneously, like, I fired him ‘cause Russia was bugging me. You said it to Russians in the Oval Office and then you said that's not why you did it. So I think what is being constructed as a perjury trap or an attempt to ensnare Donald Trump is, in fact, just a piling up of things he said and revealing that back to him and saying, which of these things is true?
This is the same argument they make about the Trump tweets, that the tweets are simultaneously true -- these are statements of actual presidential intent -- and also, when it's inconvenient, they’re not. So I think it's trying to construct a world in which things are true or they’re not true and that’s entirely dependent on the moment that you’re in and what the president is feeling at that time.
BOB GARFIELD: I wonder if Trump isn’t in a kind of unique position because we have had some guidance from the courts on the litigation of his travel ban. They have held the president accountable for previous statements and tweets and on the campaign trail that don't square with his officially announced rationale for the ban. Could his potential Mueller testimony be discounted because it contradicts his previous stories on the firing of Comey or anything else? I mean, if he does tell the truth in such an interview but, in so doing, acknowledge previous lies, what kind of position does that put him in?
DAHLIA LITHWICK: Oh my God, you're making my eyes cross. I mean, I think what you're asking is the same thing that the courts were asking about the travel ban litigation, which is which truth are we supposed [LAUGHS] to believe? I certainly think that for Mueller's purposes and for any investigatory or judicial purposes truth is truth and lies are lies and you can't say, I was lying then and I'm telling the truth now, so I think we’re square.
And I think that what scares me a little, even about this conversation, isn't just what does Mueller or some investigator make of a claim that is factually impossible to reconcile with another claim, it’s what do we [LAUGHS] make of those claims? Are we being trained to believe, as Giuliani contends, that truth is all relative, it's in the eye of the beholder, it's fundamentally unknowable? And since it's unknowable, let's just take the president’s word that when he says it's true, it's true. That’s, I think, in sort of weird ontologically terrifying territory.
BOB GARFIELD: Well, let’s talk about unknowability and let's assume that when Giuliani used the term “relative truth” it wasn't an accident. Now, obviously, there are different perspectives of events, Rashomon-like, and different memories of the same event. Does the law make allowances for alternative interpretations of documented facts?
DAHLIA LITHWICK: I think that the law is pretty good and certainly the criminal law is good at saying people can make errors of law, people can make errors of fact: you know, I did it but I didn't know it was illegal. That's certainly, you know, at some level a defense. She said she was 18, you know, those kinds of things happen all the time.
But I think what we’re talking about here is quite different because this goes back to, you know, they surveilled Trump Tower, those claims, which were very, very quickly debunked, you know, making claims that are entirely fanciful. They’re not based on a misapprehension of what's going on at the moment, they’re not based on, you know, I had a serious briefing and I reckoned with the world as I saw it. These are these really strange, some of them conspiracy theories, you know, some of them just straight from the mouth of Sean Hannity or of Fox & Friends into the presidents ear. And so, this isn't, I made a tiny error, I misapprehended what was going on. This is, I’ve spun out some elaborate conspiracy [LAUGHS] theory, with me as the victim, and now I'm using the full force [LAUGHING] of the Executive Branch to call into question my own Justice Department.
So does the law take into account that people make mistakes? Of course, the law does. I don't know what the law can do with a serial fabricator. I guess I would say the worst-situated branch of government to think about these things systemically are the courts. The court wants to take people at face value. The courts have to operate on the premise [LAUGHS] that people don't just make stuff up. If people just make stuff up, the courts are really flummoxed about how to find truth, and that's the territory, I think, we’re getting into now when we start to say, as Giuliani does, truth is relative. He’s not saying Trump makes mistakes, he’s saying Trump makes stuff up and take his word for it, this is true.
BOB GARFIELD: You mentioned the president may believe what he's saying at the moment he’s saying it, which is a bit pathological.
And it sounds something like a diminished capacity defense. You know, I said that Giuliani sounds like Johnny Cochran putting on a defense for O.J. Simpson. It also kind of sounds like the “Twinkie defense” for Dan White, that he didn't know what he was doing ‘cause he had too much sugar. Is he possibly laying the groundwork for the idea that the president can't be guilty of perjury because he doesn't know perjury when it's taking place?
DAHLIA LITHWICK: You know, it seems improbable, although we have heard lots and lots of Trump’s defenders, his legal defenders, from the get-go making analogous arguments, saying, for instance, it can't have been obstruction of justice for him to fire Jim Comey because he didn't know he was obstructing justice. You know, this is not “hide the ball.” I think that has been a part of the defense, to just assert over and over again that he doesn't know [LAUGHS] things and, therefore, he can't be doing anything wrong. But this is doubly weird because Giuliani himself is acting as though he has some kind diminished capacity here. He will assert things and say, this is the president’s position and then the president will say, oh, you know, [LAUGHS] he doesn't know what he's talking about, he's just getting up to speed. This week, he confessed he actually hasn't spoken to the president at all in, quote, "a couple of weeks.”
Giuliani, by flipping back and forth about, I’m going to let him do this interview, I’m not going to let him do this interview, your eyes begin to sort of spin around like Cookie Monster because it becomes almost impossible to understand who has agency, who is the agent here, and who is out of the loop completely. And then you really do have Trump inventing truths on the fly and Giuliani inventing different truths [LAUGHS] on the fly but saying that truth doesn't matter, in the first instance. It's almost like a Twinkie defense with the Twinkie on the inside.
BOB GARFIELD: [LAUGHS] If you can imagine yourself as Trump’s lawyer, would you ever put him in the position of testifying on the record for Robert Mueller? Would you let him get in that room?
DAHLIA LITHWICK: Under no circumstances, and I think all of Trump’s lawyers have said to him over and over again [LAUGHS], do not testify, and it’s because, you know, even if Trump didn't lie in this entire interview, would he be immunized? I don't think anyone believes that he could go through an entire interview not lying, and it's not just because, as I said, I'm not certain he can discern fact from truth. I think, more profoundly, he genuinely believes the things he says. So when he says over and over again, no collusion, no collusion, as though that is the totality of, you know, the Mueller inquiry, I think he genuinely believes he's off the hook for everything.
BOB GARFIELD: Or he is not that delusional and he is just working the refs, which is to say building up a counter narrative that will appeal to his base and the vast percentage of the Republican Party that, well, seems to support them come what may. And the counter narrative, of course, is this conspiracy theory that the deep state and the Democratic Party are conspiring against him to delegitimize his presidency. Could this not just be all about playing to that crowd and trying to create a self-fulfilling prophecy, a prosecution of him, the martyred truth teller?
DAHLIA LITHWICK: Yes, and I think both those things can be true. [LAUGHS] I think he can be quite deliberately trying to kind of lie his way out of this Mueller investigation and to end the investigation, one way or another, and, and simultaneously doing, I think, what has been the essential project of fomenting chaos and tearing down institutions by kind of taking this nihilist position that nothing matters, that everything is fleeting and fragmentary, that nobody is to be trusted, that everybody's in the tank against him.
I think that if you really look back to the last year and a half, in order to tear down institutions that have tried so hard for decades to be apolitical, in order to tear down the FBI, in order to tear down the FISA Court and the FISA process and the Justice Department and the idea that the attorney general is nonpartisan, the way you do that is by tearing down the idea that there is truth and that there are honorable seekers of truth. If everyone, including lifelong Republican Mueller and lifelong Republican Comey, are in the tank for the Democrats against him, happily, what he gets is folks who say, oh, he must be the victim here. But much more profoundly what he gets is people who stop believing in the rule of law, in courts, in the FBI. And I, I don't mean to sound like a nut but I think that it redounds to Trump’s benefit in a million ways if the American public comes out of the weekend saying, wow, maybe everybody really is in the tank for my guy. Even truth is now in doubt. That’s a win-win for Donald Trump, I think.
BOB GARFIELD: Tell me again how did -- what was the outcome of the O.J. prosecution?
DAHLIA LITHWICK: He was acquitted. [LAUGHS]
BOB GARFIELD: As always, thank you so much.
DAHLIA LITHWICK: You’re welcome.
BOB GARFIELD: Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.
[MUSIC UP & UNDER]
Coming up, the military-industrial complex goes to Silicon Valley. Does evil ensue? This is On the Media.
[PROMOS/MUSIC UP & UNDER]