Preet Bharara: From CAFE, welcome to CAFE Insider. I’m Preet Bharara.
Anne Milgram: And I’m Anne Milgram.
Preet Bharara: Hi, Anne. how are you today?
Anne Milgram: Hi, good morning.
Preet Bharara: So on Thursday, we might have been wondering what exactly we would be talking about, but Bob Mueller doesn’t disappoint.
Anne Milgram: On Friday, we were sure we had something to discuss.
Preet Bharara: Roger Stone. So before we get to the substance of Roger Stone, can we discuss one of the more interesting aspects of his person?
Anne Milgram: His personal attacks on you?
Preet Bharara: Well, no, we’ll get to that.
Anne Milgram: Okay.
Preet Bharara: We’re definitely going to get to that.
Anne Milgram: Okay.
Preet Bharara: I was going to talk about his personal tattoo.
Anne Milgram: Oh, the Richard Nixon tattoo on his back?
Preet Bharara: Yeah, do you have one of those?
Anne Milgram: I do not. You?
Preet Bharara: I actually …
Anne Milgram: I don’t have any tattoos if I have to be truthful.
Preet Bharara: I actually, since this is the Insider …
Anne Milgram: Yes.
Preet Bharara: I can confess that I actually have a Millard Fillmore tattoo.
Anne Milgram: That sounds great.
Preet Bharara: I mean it’s not quite as large.
Anne Milgram: Will you …
Preet Bharara: As Roger Stone’s, but …
Anne Milgram: Will you post a picture on Café Insider?
Preet Bharara: I might.
Anne Milgram: You notice I haven’t asked you where it is.
Preet Bharara: In an upcoming …
Anne Milgram: We gotta keep it clean.
Preet Bharara: In an upcoming episode.
Anne Milgram: Gotta keep the pod clean.
Preet Bharara: Yes, luckily this is audio. So, he was indicted on seven counts. One count of obstruction. Five counts of lying to Congress, the House Intelligence Committee, and one count of witness tampering. Before we get to some of the interesting aspects are, let’s talk about what we think of the strength of the case. I think it’s very strong.
Anne Milgram: I think it’s unbelievably strong. And I mean, we should talk about this. But if you look at the other charges that have been brought by the special counsel, for example, the 1,001 cases that’s brought against say Papadopoulos or Michael Flynn, you see there’s often an allegation that someone said something untruthful, and it’s one time, even when …
Preet Bharara: When you say 1,001 just, this is a statute we talk about all the time. 18 USC, 1,001, making a false statement to law enforcement.
Anne Milgram: Yes, and it’s one of the things that has been charged repeatedly in the Mueller investigation. And we’ve seen multiple instances in some cases, but it’s often someone lied about something very specific. Take Michael Cohen recently, for example. He pleaded guilty to lying to Congress about the timing of the conversations about Trump Tower Moscow. The allegation there was he told Congress that it ended in January, 2016, when he later admitted that it went through at least June of 2016. That’s one very discrete thing.
One of the things that is stunning about this indictment is that you have pages upon pages of lies and basic instances in which Stone said that he either had no conversations with WikiLeaks, or minimized his conversations with WikiLeaks and others related to the Democratic hacks of the emails. And then you go through and sort of methodically the special counsel’s office is saying that’s not true. And here are … And they’re quoting, and I think that this is really important. They’re quoting because it’s not just that they have a witness on the other side who is saying that’s not true. They have a WhatsApp …
Preet Bharara: There’s a transcript.
Anne Milgram: Exactly. They have a transcript from the house. They’ve got … And then they’ve got emails from Stone, text messages, WhatsApps. And basically, it’s Don can say whatever he wants but the record doesn’t lie.
Preet Bharara: Right. And I should make clear for folks that when I mentioned the statute 1,001, you can allege that when there’s a lie to a law enforcement official and also as here, there’s another aspect of it, lying to Congress. So he’s actually charged with a 1,001 multiple times in this indictment. And my favorite, which I don’t know how you escaped this, because one of the defenses to a false statement is that it was unintentional, that you made a mistake, or you forgot. Very hard to prove that sometimes because a busy CEO maybe testifies in a proceeding or makes his statement to a law enforcement agent, and maybe didn’t remember a particular email that was from a year earlier or a meeting that was two years earlier. And some of that was at issue when Jeff Sessions testified in connection with the confirmation hearing, what meetings did he have. And also with respect to that Trump Tower famous meeting, from the summer of 2016. But here, my favorite example, may I read it?
Anne Milgram: Please.
Preet Bharara: So this is paragraph 33 on page 16 of the indictment. We have the documents right here in front of us. They’re talking about the written communications between Stone and person one, and between Stone and Person two, during his testimony to the House Intelligence Committee. We’ll get to those people person one in person two in a moment. But this kind of … I literally wrote in the margin of my indictment that afternoon, “Huh.” No, not that it’s a laughing matter. But the Mueller indictment says, “Indeed, on or about September 26, 2017, the day that Stone testified before HIPSLEY, that’s the Intelligence Committee, “And denied having ever sent or received emails or text messages from person two.” Denied ever having done that, right. Stone and person two exchanged over 30 text messages.
Anne Milgram: It’s amazing.
Preet Bharara: So it’s very, very hard …
Anne Milgram: It’s a stone cold lie, yeah.
Preet Bharara: Oh, that’s good. Did you coin that?
Anne Milgram: I mean that. Yeah. No. But what I’ll say? I’m sure …
Preet Bharara: How do you defend against that?
Anne Milgram: How do you defend? There is no way you can defend against it. And it’s sort of like your child asks you, “Can I have a chocolate chip cookie?” You say no. Two minutes later, you hear a crash, you walk into the kitchen. The cookie jar’s on the floor and your kid has chocolate all over their face, and you say, “Did you just take a cookie?” And they say, “No. I didn’t eat a …” Right. It’s like …
Preet Bharara: Right. With the cookie in mouth.
Anne Milgram: With the cookie in the mouth. It’s like that level of just … You just don’t understand what’s happening how he could say it. And I think … Look, he’s gotten away with it. This is how he rolls. This is who he is. And to me, the special counsel pulls out those 30 text messages. You have him under oath in front of the House Intelligence Committee saying, “I never had any communication.” And how do you say you forgot … I just texted him two minutes ago, right?
Preet Bharara: Yeah. And then there’s another strength in the indictment too because as we said, Count seven is not lying. It’s witness tampering. And there’s a discussion in the indictment in some detail of all the ways in which Roger Stone tried to get person two, who is Randy Credico, again, we’ll describe that in more detail. He tried to get Randy Credico not to testify before the Congress or to assert the Fifth Amendment against testifying. And there’s a back and forth between Roger Stone and Randy Credico, where Roger Stone says over and over again, “Don’t testify. Don’t testify,” trying to obscure the fact that he may have not told the truth. And Randy Credico, according to the indictment, says over and over again says, “You need to amend your testimony before I testify on the 15th,” over and over again. So …
Anne Milgram: Because you’re gonna be caught in perjury.
Preet Bharara: Yeah. Because Randy is claiming he’s telling the truth and you have not told the truth. And so when you’re trying to get a witness who thinks you lied and to trying to get you to correct your testimony, and then you get charged with lying, and then separately, you’re charged with trying to get someone to confirm your lies or not be in a position to rebut your lies. Those charges as we sometimes see and it’s really nice when it happens for a prosecutor they overlap and they reinforce each other.
Anne Milgram: Right. And it’s a really important point because it’s not just that Stone himself lied to stop people like Congress from finding out the truth of what happened. He also was trying to get somebody else to lie, and it really is a step beyond which is why I think it’s an appropriate charge given that the facts that we’ve seen. And Randy Credico, just to remind people, he’s a comedian, a radio host, and Stones … He’s been back and forth with Roger Stone. He’s also reported in the indictment to be Stone’s backchannel to Julian Assange, one of the back channels to Julian Assange. And again, in the indictment, he’s received a number of threats from Stone including threats to his therapy doc, Bianca. Poor Bianca.
Did Bianca is the only doc to have been in the grand jury, the Mueller grand jury, because she is a therapy doc, so I read this morning that Bianca has actually been in the grand jury. But it’s an extraordinary indictment in many ways, and it is kind of textbook. If you think about … We spend a lot of time talking about is there enough here to prove obstruction or witness tampering? And then you sort of see this version, this is as overt with references to the godfather to the individual who testified and didn’t testify about all the things he knew, pretended he didn’t know certain things. And so Stone is really trying to basically pull out all the tricks he can to get somebody not to come forward and testify truthfully.
Preet Bharara: Did you ever have an indictment with a reference to the Godfather?
Anne Milgram: I did not. Did you?
Preet Bharara: No. The closest we came, I think we had a reference to the Princess Bride. Not quite the same.
Anne Milgram: Oh, that’s a great movie.
Preet Bharara: It is a great movie. Well, there was a defendant we charged, who called himself the dread pirate Roberts.
Anne Milgram: That’s the story I’d like to hear more later.
Preet Bharara: Well, we’ll get to that after the Millard Fillmore tattoo. We’ll talk about that. So …
Anne Milgram: So one of the things I think we should talk about is paragraph 12 of the indictment says, “After the July 22nd, 2016 release of stolen DNC emails by organization one,” which of course is WikiLeaks, “a senior Trump campaign official was directed to contact Stone about any additional releases, and what other damaging information organization one,” which again is WikiLeaks, “had regarding the Clinton campaign. Stone thereafter told the Trump campaign about potential future releases of damaging material by organization one.” So this is the first time I think we’ve seen this allegation that a senior campaign official was directed, and I guess the first question obviously is, who’s directing?
Preet Bharara: Right. Well, I guess the other two questions are, who’s a senior Trump campaign official, and who’s doing the directing? With respect to the Clinton campaign official is, I guess there’s some evidence that it was Steve Bannon.
Anne Milgram: Yes, there’s a lot of discussion that it’s Bannon.
Preet Bharara: I don’t know if it matters so much, but you’re right. The question of who directed him to do it and much has been made of this. You and I both talked about this elsewhere that in a document that’s all basically in the active voice, and people are identified whether it’s by name or by person one or person two, or organization one …
Anne Milgram: With significant description. So it’s not just organization one explains that it’s …
Preet Bharara: Here you have a passive voice constructionist, a senior Trump campaign official was directed to contact stone. So my question is before we get to who might be, why is it in there? It’s not necessary to the charge. It is bound to cause speculation on the part of ordinary people and “experts” like you and me. I believe that the Mueller folks are very careful, they don’t put anything into the indictment that they don’t intend to put into the indictment. They were very careful about using the passive voice. So I don’t know why it’s necessary, I don’t know why it’s there. I don’t want messages trying to be sent. And then the clear decision not to identify the person when the speculation is going to be obvious …
Anne Milgram: That it’s Trump.
Preet Bharara: That it’s Trump because who else directs? You’re already identifying someone as a senior Trump campaign official.
Anne Milgram: Right. And then it could be who is senior …
Preet Bharara: So we expect someone higher.
Anne Milgram: Right. Exactly. Who could be senior to that.
Preet Bharara: And also in the context of saying contact Roger Stone with whom Trump has a 40-year relationship.
Anne Milgram: Yes, I agree.
Preet Bharara: So what’s it doing in there?
Anne Milgram: It’s a great question. I think you could make an argument that it is part of the narrative, that stone has said repeatedly that he didn’t have conversations with members with the president or members in the campaign about this. And this obviously … There’s a number of pieces that go on in the indictment to sort of say, “Well, that’s not true.” And includes specific conversations. So part of it is … And this is common in an indictment you want to put part of the narrative in. That being said, I agree with you. There’s something unusual about this being in here because it isn’t necessary for the charges. And I think the question is, and I maybe have to read it taking it out is, does it feel like there’s something missing, because Stone is out there and he’s basically denying having these communications with Trump with all of this is made up, and then you start to see that it’s not just that he is in the back and forth with WikiLeaks as he had … Or the back and forth with GRU, the Russian intelligence agency.
It’s that there is a connection to the campaign, and there is a connection to the Trump effort to become president United States. And I personally think there is a question materiality is whether or not something is relevant and important to the investigation, and so if for example, of Roger Stone went in and said, “The sky was gray,” when the sky was really blue. Well, the House doesn’t really need to know whether the sky was gray or blue for the purposes of understanding Russia collusion, that would not be material to the investigation. But this goes to the heart of the House Intelligence Committee’s investigation into the Russian hacking of the emails, and whether there were any efforts to coordinate with Russia. And so why does it matter? It matters because he isn’t arguably a conduit between the future president of the United States, and these two other organizations.
Preet Bharara: I still don’t understand is why …
Anne Milgram: I’m not disagreeing, but I’m making my best argument.
Preet Bharara: Right, because you could have just said, “A senior Trump campaign official contacted Stone about etc. because then you’ve already established …
Anne Milgram: Right. I agree with that, yeah.
Preet Bharara: … A connection between the campaign official and Stone. And so the director too especially if it’s the president is odd for another reason. And tell me if you agree with this, the mere fact that the president might have said to Steve Bannon hypothetically …
Anne Milgram: “Get me that information.”
Preet Bharara: “Hey, go find out what Stone knows,” is not to my mind a crime.
Anne Milgram: I agree. We should talk about this and stop here just for a second because there’s a lot of questions about what’s a crime and what isn’t a crime, and why conspiracy wasn’t charged here. So let’s break it down just a little, but first of all, and I think this is really important to say, just knowing that somebody else has committed or is committing a crime is not sufficient to make you guilty of a crime, right? And so …
Preet Bharara: There are certain circumstances in which there’s this depending on the timing. There’s this prison a felony, which we don’t to talk about here, and [crosstalk 00:13:28] after the fact, but also, there are things that are usually not charged, that are on the books that can make you guilty of something much less than the underlying crime.
Anne Milgram: Yes, that’s true, but …
Preet Bharara: If you’ve done something to hide it or not report it in certain circumstances.
Anne Milgram: Right. That is true.
Preet Bharara: But you’re correct, generally, that …
Anne Milgram: As a rule, if the Trump campaign knew here that Russia had hacked those emails … Well, look the American public also knew, right. This came out in June of 2016. There was reporting that the Russians had hacked the emails. So if the Trump campaign knew that Russia had hacked those emails, knowing that and knowing that they’re going to release them, I don’t think makes them guilty of a crime. What’s interesting in this indictment, there are parts here where it is clear that they are looking for specific information or Stone sends this note basically, saying, “Get to Assange, and see if they have any emails related to …” And I think it’s August 2011, when Hillary Clinton was secretary of state. They’re looking for specific formation. Now we don’t know more. We don’t know were they looking at it so that they could create a narrative about Clinton in the Trump campaign, were they looking at it to sort of coordinate or time different releases. But that’s where it gets I think potentially interest.
Preet Bharara: Yeah. With respect to the main crime committed here. So there absolutely was a crime. There was a hacking done by we think Russian officials, right. That’s what the intelligence community says. That’s what Mueller’s indictment says.
Anne Milgram: And they’ve been charged. Yes.
Preet Bharara: They’ve been charged. So that’s the crime. The question is, was there participation in that crime on the part of anyone in the Trump campaign? And largely what we’ve seen is the hacking crime was a completed offense at some point, and then these meetings the timeline show and the discussions particularly in this Roger Stone indictment are about trying to find out what was going to be released and what timetable after the hacking was complete.
Anne Milgram: I wanted…
Preet Bharara: So there’s no evidence here …
Anne Milgram: Can I argue?
Preet Bharara: Yeah.
Anne Milgram: I think that’s right. But there’s still a question of when Donald Trump went out and said, “Russians, if you’re listening, please go get Hillary Clinton’s emails.” We still don’t know whether any action … It’s been reported that …
Preet Bharara: But he said that in the rally.
Anne Milgram: Right.
Preet Bharara: He said that in the open. How can that be a crime?
Anne Milgram: It’s been reported that the Russians then attempted to do so. And so, again, there’s no indication that it’s any more than Trump making a public statement that the Russians heard and responded to. But I think that there’s more questions are raised by this indictment now of what relationship, if any, was there between the Trump officials and the Russians through WikiLeaks or directly. By the way, let’s just stop here for one second. I put our son down to bed. I come out and my husband says .. This is Friday night after Roger Stone has been indicted. And my husband says, “Roger Stone was on TV,” we should just talk about this also for a second.
Preet Bharara: What is he doing?
Anne Milgram: Why does he ha to … No good comes … And if you’re a defense lawyer, the last thing in the world you would want is your client to be out making the rounds on cable news talking about the charges against him.
Preet Bharara: Right. Even Rudy stayed off TV this weekend, which is that. Thank God for that.
Anne Milgram: But Rudy maybe learned a little bit of his lesson I think. Probably not. But yeah, I mean, it’s an extraordinary thing to be charged with a crime and to be out there talking because again, everything can be used against you. But the second part, I was still absorbing the fact that Roger Stone was on TV, and my husband said, “Yeah, and he’s mad at Preet about something.” And I was like, “Why is Roger Stone mad at Preet?” So you want to tell us a little bit?
Preet Bharara: So, it’s a little nuts. I don’t know Roger Stone. Never met Roger Stone. Seen his odious diss in various ways. So on three television broadcasts, including on Fox News, on CNN, and then on Sunday again on this week with George Stephanopoulos, in his sort of opening talking point, he yells about Wolf Blitzer and me and has said completely falsely …
Anne Milgram: And you said on CNN, I later watched the clip, you said, “It’s a strong case.” You basically went through and explained why these charges are significant and why it’s a strong case.
Preet Bharara: Yes. I sort of went through what you and I just went through with respect to how hard it’s gonna be for him to defend the case. And then he said out of the blue, I think I might have still been in bed, not to overshare when stuff …
Anne Milgram: This a day of oversharing.
Preet Bharara: This is Sunday … I know.
Anne Milgram: Some ore tattoo.
Preet Bharara: He says, “To have Wolf Blitzer on CNN or Preet Bahari,” mispronounces my names. I’m very agitated by that also. And then refers to me as a man accused I guess by a federal judge of willfully leaking grand jury testimony to the media. I don’t know. That’s an interesting parenthetical. That’s not true. Never happened. No judge has ever found that.
Anne Milgram: But isn’t this my Roger Stone does too? He just he makes [inaudible 00:17:57] and then yeah.
Preet Bharara: Yeah, he just character assassinates people for no reason because he doesn’t like what they have said. So anyway, rest assured that is completely made up false nonsense. But back to the substance of the charges against Roger Stone, which he should be more focused on than focused on me. I guess there’s two questions with respect to what he’s been charged and what has not been charged and what everyone was looking for, and I keep seeing people on television say, “We’re waiting for the second shoe to drop and there’s enough sort of hints of conspiracy evidence here that there will be a conspiracy charge.” I’m not prepared to say that there will be a conspiracy charge going forward. Maybe they don’t have enough. But question one is, are the charges that are currently in the indictment serious, or are they just sort of process crimes? They’re very serious
Anne Milgram: Right. They’re incredibly serious, and they’re not process crimes. And people talk about process crimes a lot these days, but look, this is not in reference to Roger Stone, but this is reference to other people who have been charged lying to the FBI lying to the House Intelligence Committee. Lying to the Senate. I mean, these things are extraordinarily. It’s extraordinary for someone to do that and Stone here …
Preet Bharara: Threatening a witness.
Anne Milgram: Threatening a witness.
Preet Bharara: And that’s a process crime. That’s a serious thing to do.
Anne Milgram: Right. And when we talk about process versus substance, I mean, to lie to Congress or to the FBI becomes substance, right, because they’re trying to find out what happened. And when you tell a lie, and when you threaten other people and try to get them to also tell lies, you end up thwarting an investigation and making it more difficult for someone to know what’s happened. And I will say this, I mean, you and I both prosecuted a number of cases and I prosecuted 1,001 cases. And there’s a lot of conversation by Stone about, “I’m not charged with the real offence. I’m charged with this sort of nonsense,” he’s alleging. When you go in front of a jury, the opposite is true.
The thing that juries hate is when people lie and cover it up because it always comes back to this question of what are you lying about? What are you covering up? And by the way, I think juries are smart and see that, well, if you’ve lied and covered stuff up, there might also be stuff we don’t know because you’ve actually engaged in that behavior. You’ve taken these affirmative steps to make sure that people don’t find out the truth. And so, I think it’s a risky play to go out and say, “Well, this doesn’t matter because it’s just about lying.” The truth is jurors really don’t like when defendants come before them and have been accused of lying.
Preet Bharara: And if there is a future conspiracy charge as already mentioned with the indictment, certain charges reinforce the credibility of other charges, lying about things you’ve done, if there is ultimately a conspiracy charge is the proof also of the conspiracy. Because if your conduct was innocent, as you’ve been saying, they don’t lie about it over and over and over and over again. That was true in this indictment. That’s true with respect to the charges against Michael Cohen as well. But there are some people who’ve been speculating that maybe that he has enough evidence, Mueller has enough evidence to bring a conspiracy charge but he’s staying his hand. And that’s not something that I probably would have done. It’s not standard practice. But there’s nothing standard about this case in a lot of ways.
One of our friends, Joyce Vance, who’s been a guest on the show has an interesting theory. And she tweeted in the last couple of days, “Why didn’t Mueller charge Stone with conspiracy?” The rules in federal cases require that prosecutors provide defendants with broad discovery, By indicting Stone on a fairly narrow set of charges, Mueller limits what has to be disclosed and can protect ongoing investigation. I suppose that’s possible.
Anne Milgram: And what she says is true, that if there was a broader charge, that that discovery would start, that the government would start giving documents and information to people who are charged.
Preet Bharara: Right So the suggestion though is it’s a tactical decision to stay your hand not charge the more serious offense. So you’re not giving some kind of discovery informational advantage to the defense. I don’t know that I like that.
Anne Milgram: I don’t agree with that either, although I do think it’s possible.
Preet Bharara: It’s an interesting thought.
Anne Milgram: It is an interesting thought. I also think, let’s talk for just one minute about what there could be a conspiracy to do because we talked a little bit about the hacking of the emails, which is one potential conspiracy. There’s also a second potential conspiracy here, which is the campaign finance violations. And I think that’s what people are more talking about because the Trump campaign could not accept anything of value, solicit or accept anything of value from a foreign entity. The Russian government, arguably WikiLeaks here which is a foreign entity, but it’s certain that if they were out soliciting help from the Russian government, coordinating with them, that’s problematic as that’s potential campaign finance violation, and it becomes criminal if it’s knowingly and willfully. Meaning it’s wrong you do it anyway.
Preet Bharara: There’s a lot of evidence of that.
Anne Milgram: There is a lot of evidence of that. And that’s where I think the conspiracy conversation gets a lot more interesting because when you talk about the hack and conspiring to hack, you’re right, most of the hacking we think was over to sort of have been involved. The conspiracy on the hacking of the emails really, I think would relate to the timing of release, what was released, what wasn’t released. I mean, I think that’s where you have potential criminality. And short of that, if you just know about it, it’s hard for me to see that you charge someone.
When it comes to a campaign finance violation, I think it is a different question because we know the Russians were engaged in this activity. We know that they pushed information to WikiLeaks. We know WikiLeaks was publicly putting it out. We know that now there was back and forth between the campaign and Roger Stone, indicating that they thought it was valuable, that there was value to them in having this information. And Stone isn’t charged with that. So I think that is to me, the more interesting question of why is there no conspiracy here?
Preet Bharara: Another way to see the value argument that you point out, which is incredibly important, and we’ll see what happens with that information, whether it finds its way to charges in the coming weeks and months. Maybe if you just change the facts a little bit, and maybe these are even true, we just don’t know. I’m speculating, if Roger Stone, through one of his conduits, offered money to Wikileaks, and said, “It’d be great if you have emails about Hillary Clinton’s health, or other things that undermine her from this time period.” And we see that in the indictment, and look, I’m making this up for the sake of argument. Suppose that Roger Stone said, “And we’re prepared to pay you $50,000 if you released that.” Then I think a slam dunk case of proving that that information had value, and its value being given by someone outside the United States to a campaign. And that’s a problem. But even in the absence of money being paid for it, it’s so clear that it was important and valuable to the campaign. I think I that is something real to be paying attention to.
Anne Milgram: Do you think it’s possible? I mean, one of the things I’ve been sort of thinking a little bit about is that we think Mueller’s going to write a report about Trump and about this obstruction of justice question. I also think if Trump were guilty of conspiring to violate the campaign finance laws, he’s not going to be charged with that either. That could be a part of a report. So again, speculate here …
Preet Bharara: And an impeachment proceeding.
Anne Milgram: And an impeachment proceeding, but speculating here. If that were to be part of the report, is there an argument that Mueller saves it for the report and sort of does the Trump piece …. If he charges Stone here with conspiring, and then the question is, “Well, who else did you conspire with?” It’s sort of immediately puts Trump, I think, in the center of the storm. I’m not trying to think that this is right. I just have been thinking a little bit about like why …
Preet Bharara: This is our fate now, right? People who used to do these jobs are now speculating on the outside and trying to read the tea leaves and interpret sub-clauses and paragraphs, but to continue that practice may be what you’ve just said provides an answer as to why there’s this language, was directed to that implicates the president because maybe for some reason there’s gonna be a future report that suggests Donald Trump and by name directed Steve Bannon to do this, hypothetically, that he wants to lay some predicate in an actual court document. So it’s not just a report that he releases later on his own volition that is not approved by a grand jury, that is not approved by a court that is not litigated publicly, but actually in a proper court document, so that there’s some building block that he can then build off of.
Anne Milgram: Is there are also fundamental … I’m not sure I haven’t thought enough about this but I’m going to throw it out there. Let’s say that Robert Mueller and again we’re completely speculating but again this is what we get to do now that we’re not the ones responsible for bringing the indictments. Let’s say that Robert Mueller is going to find in a report that Donald Trump did conspire to violate campaign election laws with relation to the hacks and the emails. And he thinks that two other Americans conspired with the president, hypothetically. Two Americans could be charged, the president cannot be charged. Is it fair to charge those two other individuals and not charge the president?
Preet Bharara: That’s a great question, and one that you have to face from time to time because sometimes it’s true in a slightly different context. But you’ve got two underlings and you’ve got a boss and the underlings are guilty. And you think you can prove them guilty, but you don’t have quite enough to get the boss. And it’s a legitimate fairness question if the most …
Anne Milgram: It’s awful, but how would Mueller’s see the equities of fairness in that?
Preet Bharara: Although, you could make the decision that it’s okay because there can be still accountability for the president through an impeachment proceeding, and or later prosecution. But I think that the fairness question is really there. And by the way, jurors pay attention to that. Yes. If you’re prosecuting a case against someone and it becomes clear during the course of the trial that there’s some other person that’s responsible, even though the jury is instructed not to consider who is not there because there can be reasons why someone is not at that trial and they can’t speculate about it. And maybe that person, as far as the jury knows has been charged but has been severed from the trial and will be prosecuted separately. In the real world people get a sense of whether or not some up some higher party has managed to escape justice.
Anne Milgram: So Preet, we got a question about the execution of the arrest of Roger Stone. It comes from Twitter @Melissam_56. She asks, “why did Roger Stone get arrested at his home rather than be allowed, as often happens, to turn himself in?”
Preet Bharara: It’s a great question and one that lots of people are talking about. And it’s a question that you and I probably faced a lot. I mean, I know I did face a lot.
Anne Milgram: I did as well.
Preet Bharara: When do you let someone surrender? And when do you do it the normal arrest? By the way the normal default arrest technique for the FBI, for the DEA, for the NYPD, for safety reasons particularly when the person does not know what charge is coming, for safety not only of the officers and agents but also the safety of the defendant and the defendant’s family. If you go with a team of people who are armed and even if it’s a knock warrant, meaning you don’t have permission to bust down the door which they did not in this case, you do it when the person is not expecting it, when likely they’re still in bed, they’re less likely to be able to engage in force with you, they’re less likely to be able to destroy evidence.
That’s the default. Now, often in white-collar cases which this is, especially if there have been negotiations with a lawyer and the person knows the charges are coming and probably with most of the public corruption prosecutions that we did including Sheldon Silver and Dean Skelos in New York or high ranking people New York and some of the high ranking insider trading defendants, they were permitted to surrender because a judgment was made, that we were not going to be seeking their detention pending trial. And we didn’t perceive them to be a risk of flight. Now, here …
Anne Milgram: Were you doing search warrants in those cases?
Preet Bharara: Sometimes, sometimes not. But here it seems to me based on some of the evidence that we’ve seen in the papers that were put in to have the indictment sealed by the Muller team, there was a concern about destruction of evidence.
Anne Milgram: Yes, in an effort to gain additional evidence through search warrants.
Preet Bharara: Not only do you have a concern about destruction of evidence, you have a concern about witness tampering as laid out in the very charges in the indictment. And you know what? Roger Stone is a pretty volatile guy. I don’t know if he’s capable of violence or it’s just puffery and threats. But there’s this video that was circulating with him taking target practice with a weapon.
Anne Milgram: I think it’s a the exactly right conversation in the way to see it as a prosecutor. And I think we should say this, there are heavy-handed prosecutors who want the video of a perpetrator being walked out of their house. I don’t see Robert Mueller as that person. And so, I would argue here pretty strongly that they had reason to believe that this was the appropriate way to go because Stone is represented by counsel. As you note, the common way that you would proceed would, you’d call the lawyer and say, “Hey, have your client turn themselves in.” But if there’s any thought that they might destroy evidence that’s relevant to the case. Any thought that the element of surprise would let you get additional evidence and it’s been reported that the FBI did serve search warrants, did conduct search warrants on Stone’s Florida House and his New York residents, ostensibly seeking I think probably electronic evidence or additional communications, we know there’s a lot of sort of WhatsApp communications potentially, those are encrypted. So the way the government would get them if you and I are what on WhatsApp together WhatsApp isn’t going to honor a subpoena from the FBI but they could get a copy of those conversations from either you or I
Preet Bharara: From the other copy party. Right.
Anne Milgram: Right. And so it’s clear that there was a desire to see what evidence they could get and a reasonable belief that a judge signed not just an arrest warrant of Roger Stone but also a search warrant saying that there was probable cause to believe that evidence of crimes that were committed were in those places. And so it’s important to remember that there was an effort here to try to recover that evidence. Now, once those decisions have been made you say correctly, there’s a standard operating procedure and that standard operating procedures is that the agents go in armed. There’s a large number of them. Certainly, it is not something people want to wake up to at 5:00 in the morning. But it is the common practice once you decide to go that route.
Preet Bharara: And you open yourself up to criticism like they have. And sometimes the prosecutors and the agents will try to make some accommodations in part so that you don’t lend yourself to this perception that you’re being heavy-handed. But in this case, there was a camera there. I’ve not heard any evidence that they did anything untoward. They showed up with a lot of people. And they always show up armed because you never know what’s going to happen. But they knocked on the door and it sounds like they were very professional and that was that. A lot of people have raised legitimate questions said, “Well, if he’s known for so long that he was under investigation, has in fact stated, that he expected to be charged with some collateral crime. He had a lot of time to destroy evidence and that’s true. And that’s a logical argument. But in the real world, you find people forget to destroy things.
Anne Milgram: All the time you find this.
Preet Bharara: They don’t realize that they were not successful in destroying things and sometimes they don’t destroy things.
Anne Milgram: Particularly when it comes to electronic evidence, using a computer or a device can make a huge difference.
Preet Bharara: And the same argument could have been made with respect to Michael Cohen. Michael Cohen had been under investigation, I think, or should have known he was under investigation for a period of time and law enforcement officials got a search warrant, a number of people thought that was heavy-handed to at his office.
Anne Milgram: And they got an incredible amount of evidence.
Preet Bharara: They got a huge amount of things including recordings. And maybe Roger Stone has recordings and you don’t know if he has them or not and maybe those are things that he thinks are insurance policy for himself that he would not destroy.
Anne Milgram: And the one thing to know is that a judge did have to sign off on it, which means that you can’t walk in and say, “Hey, it’s possible there’s something there.” You have to actually have a reason to believe and be able to show to the judge that there’s probable cause to believe that the evidence is there.
Preet Bharara: And so these logical arguments that defense lawyers make all the time.
Anne Milgram: And they sound right on their face.
Preet Bharara: On their face. They say like, “Why would he be so stupid as to commit that crime? Why would you be so stupid as to do it in this way? Why would he break the law to get a million dollars when he already has a billion dollars?” I’ve heard those arguments over and over and over again and the prosecutors just said, “Well, I guess theologically, why would he do it? Let’s not bother to get the search warrant.” A lot of crime would go unpunished completely because thankfully people are not always smart.
Anne Milgram: And there are countless examples I could point to where someone was under investigation. We did a search warrant regardless and we got evidence, and so …
Preet Bharara: Or sometimes they think they’re very clever. Sometimes drug dealers even if they know there’s a raid coming, they don’t flush it down the toilet not comparing him to a drug dealer, but they hide it somewhere. And they think they’re hiding spot is very good. So law enforcement has to go in search everything.
Anne Milgram: Yeah, one other one of the thing I think we should talk about with Stone that I find particularly interesting is we got an email about Roger Stone from John. And the question John asks …
Preet Bharara: Oh, John. It’s always John.
Anne Milgram: He asks, “How can Roger,” they’re on a first name basis. “How, can Roger claim one day that he will never betray the president only to switch gears the next with his assertion that he will cooperate with Mueller if he can be helpful? Is there running room in between those statements. Maybe he is simply willing to horse trade for his own freedom, but it seemed a speedy reversal.” And of course I think John is referring to the statements that Stone made yesterday on MORNING TV saying … or Stone basically said he didn’t take being a cooperator off the table and said that he would consider essentially telling the truth about other people’s actions if you were asked by the special counsel, what do you what do you make of this?
Preet Bharara: So that’s the agail question? What causes someone to flip and how can someone be adamant against it one day and then in favor of it the next day? We’ve seen that just in connection with some of the Mueller prosecutions. Paul Manafort said I’m not going to cooperate, not going to cooperate. Went to trial got convicted and then decided to cooperate. That didn’t work out well because he continued to lie, which is relevant I think as we analyze the Stone case and then change his mind. And everyone has a different inflection point. Some people the moment that the agent approaches says, “I’ll tell you everything you want to know,” And I have cases like that and I talk about some of those in the book.
It’s been like 20 minutes I haven’t plugged the book yet. And some people they take their secrets to their grave for various reasons, either out of fear or because they have a certain sense of “honor” that they believe that they have to adhere to. And so, in the Stone case, I don’t believe any of his statements when he says he’s not going to cooperate when he says he is going to cooperate. I think he is so sullied by the back and forth …
Anne Milgram: He would lie about anything.
Preet Bharara: Yeah, we had this great piece by one of our former colleagues Elie Hoenig on Cafe.com this past weekend assessing the likelihood of Roger Stone cooperating, that was before Roger said these things on Sunday morning as it came out on Saturday, where he goes through like you and I could. And any prosecutor we know could, case after case, after case of a person who you’d never think would cooperate, who had sworn a blood oath in the mafia or who had lots of things to be afraid of if they decided to cooperate and had committed horrible crimes of violence, murders, and whatnot and yet they cooperate. So anybody who’s been in the trenches for any period time knows that there’s there’s really no one you can predict with certainty is gonna keep their mouths shut.
Anne Milgram: I agree with that. I also think that Stone has not been in a position where he’s likely to go to federal prison before. And you and I, talking about the strength of this case. This is a strong case and a good defense lawyer will say to him this is a strong case and you’re gonna be sentenced to federal prison. And the only way to reduce that sentence is to cooperate with the government. Or to obviously be acquitted at trial but I think a good defense lawyer would look at the evidence presented in the indictment and really be concerned about going to trial in this case. So I think that’s true and of course obviously, he still could also play for pardon. But that’s, I think, down the road.
Preet Bharara: And speculative. But I think what we need to talk about now is the fact that for cooperation to work, not to use an overused phrase, it takes two to tango. So the first question which we’ve discussed is whether or not Roger Stone would flip.
Anne Milgram: Can we stand this for one second?
Preet Bharara: Yeah.
Anne Milgram: So I see Stone’s comments yesterday. There are a couple of things, first of all, he didn’t say, “I would be glad to be truthful about my conduct.” Right? He says, “I would be glad to be truthful about other people’s conduct.” Which is strange because when you’re a cooperator the first thing you have to do is tell the truth about your crimes. Of course, the government asks you, “And we want information about everybody of committed crimes with,” and we’re all interested here to know, “Oh, who else were committing crimes with.” But the first piece really is personal.
Preet Bharara: Right. But he would take the position that wrong or right that he’s been honest and he hasn’t lied. I mean, he disputes the allegations and in the indictment, the first step is pleading guilty to that.
Anne Milgram: But is it possible he’s doing something else? Is it possible he’s doing something else here which is this, we just had a whole week of discussion about the way that President Trump and Rudy Giuliani talked about Michael Collins father in law and whether that was witness tampering, they essentially were out tweeting and Giuliani was on TV where Trump was basically saying, “Michael Collins a liar. I thought this whole investigation was going to be about the father in law,” sort of signaling there might be criminal activity by Michael Collins father in law. And of course, Trump oversees the Department of Justice and the US attorneys.
And so, I’m not sure anyone would ever charge it but it looks certainly like he’s trying to intimidate a witness. And this was in relation to Coleman’s testimony before the House representatives that Collin postponed. And so when you think about witness tampering there are different ways that people do it. There’s also ways in which people try to send messages. And I wondered a little bit and maybe I’m giving Roger Stone too much credit as a dirty trickster. But I sort of think anything is possible. He sits there and he basically says, “I would consider talking truthfully about what other people have done.” Is he sending a message to people saying like, “I know all this stuff about you.”
Preet Bharara: He might be but that sort of leads into the two to tango part. So, on the one hand, the question of whether or not he will decide to cooperate is an important one and there’s reason to think he would.
Anne Milgram: What that means, right.
Preet Bharara: But the prosecutor has to agree to embrace this person and sign that person up to an agreement and hope and believe that they’re going, to tell the truth, and they’re not gaming it and they’re not selectively telling the truth and selectively lying and are owning up to their own past. And all of their own conduct and also thinking about what kind of witness that person is going to be on the stand, sometimes …
Anne Milgram: Right, because your corporate someone against someone else and that’s an important point.
Preet Bharara: But there are two kinds of cooperators, there are cooperators from whom you get information but you know in advance or you think you have a high likelihood that you’re never gonna put them on the stand. To my mind, to the extent that Roger Stone could be a viable cooperating witness who has to sit in a stand and raise his right hand and swear to tell the truth, the whole truth and nothing but the truth, seems really far fetched to me because he’s an unseemly odious person, whose cross-examination would be one of the most fun and great thing for any lawyer to do of all time.
Anne Milgram: I do not see any way that this … And look we could be wrong, we’ve just said you know you’d be surprised by who does get cooperative
Preet Bharara: We can ask it this way like you’re the attorney general of New Jersey, I’m the US attorney in the southern district and my team comes to me and they say, “It would have to be something really huge that we cannot prove in any other way. And he would have to be hugely corroborative.”
Anne Milgram: And you could confirm exactly that, you can corroborate because I think there will still …
Preet Bharara: Wouldn’t the teams have an uphill battle with you?
Anne Milgram: Yes, they’d have a huge uphill battle in convincing me to cooperate Stone, first of all, you’d never use him at trial. I wouldn’t put him in the grand jury at this point. I mean, I think he’s so compromised as a witness. You have to be careful and obviously, we talk about this all the time but cooperators come at a cost. You get a lot of benefits but they come at big. And you have to believe that that person is being truthful with you. At this point it’s Stone has lied about so many things in so many different ways. It’s really difficult to see a version where you would use him. Now, as to the question of, does he have information that you would use and never ever call him as a witness? That’s a more interesting question. But again, you’d have to totally believe it right. And it would have to be like … Would you require the same level of corroboration you would require in other cases or higher level?
Preet Bharara: Higher. And also there’s this aspect of how the government looks in a courtroom when you cooperate a certain kind of person. And I understand Ellie’s point and I’ve done it too that some really bad people, murderers and I know it seems odd to the listener probably to say, “Well, Roger Stone hasn’t killed anybody, that you would have more concern about putting him on the stand than someone in a gang who’s killed, five people.” It sounds bizarre but I’m telling you the analysis is actually valid because there are people who have killed folks, who are more credible on the stand because they’re in a gang war and they committed crimes but then they’ve turned some kind of corner and you actually believe that they’re telling the truth because they’ll explain exactly who ordered them to do what and when and where and I’ve seen incredibly believable witnesses who are awful human beings have done awful crimes. I don’t see how you could trust that an ordinary juror given how much dissembling and dirty trickster stuff that Roger Stone himself brags about being, I mean, basically brags about being a trickster. Tricksters are not persuasive to the jury.
Anne Milgram: I agree.
Preet Bharara: We could go on for hours because it’s been such a big Newsweek, so let’s just end with a couple of quick things. Jared Kushner, it has been reported …
Anne Milgram: Lightning round.
Preet Bharara: Lightning Round.
Anne Milgram: Jared Kushner has been reported had his security clearance granted over the objection of career people which are the ones …
Preet Bharara: His top secret security clearance, it’s been previously reported that his SCI which is the highest levels of security clearance was declined. But this is the first time since…
Anne Milgram: Sensitive compartmented information and not only Jared Kushner but apparently 29 others. And it’s the most number of sort of overruling of career staff that anyone has been aware of. There’s a report there’s only one other in the prior three years.
Preet Bharara: It’s troubling too because the investigator, the person who does the first round cut saying, “No, he’s not he’s not qualified to get top secret clearance because of foreign entanglements,” basically meaning he could be compromised, that we can’t trust him with information for a variety of reason and then that person supervisor saying the same exact thing and being overruled by the political appointee head of that office, he was a longtime DOD Department of Defense employee but …
Anne Milgram: Named Carl Klein.
Preet Bharara: That’s an astonishing thing to have two layers of review basically saying you’re not qualified to have a top secret clearance and then to have that overturned.
Anne Milgram: I’ll make one quick prediction. The person who overruled the recommendations of the career folks, Carl Klein, he’ll be testifying in the house at some point.
Preet Bharara: I agree.
Anne Milgram: And he should.
Preet Bharara: I agree. He should. And 30 is a lot. And the rules exist to protect the United States government. And these are really important questions of who gets cleared and who doesn’t because who gets access to information, for example, about sensitive material at the highest levels, about informant, about foreign government communications. I mean, it’s extraordinarily important stuff.
Anne Milgram: I think it’s other example of the kind of thing you might see Congress legislating about because when there is overreaching and there are violations of norms, there’s nothing criminal that happened here, but there are violations of norms that are set in place for good reason including who gets a security clearance, what the bases should be and including also the bases in which you’re supposed to recuse yourself. When people start violating those because they have some personal interests or because it’s to spare embarrassment of your son in law, who may not be qualified for the job in the first place, that’s when Congress starts to address the way in which the committee clearances can be granted and start to invade the territory, the executive branch and also hold people accountable.
Preet Bharara: Yeah. I mean, it’s smaller than some of the other things we talk about but it is a rule of law question. And it is a question of sort of letting career folks figure out what the right thing is and then honoring that and not making political decisions that potentially could harm national security. And so, again, it’s been a norm for so long that it is sort of striking that we have to have this conversation. But I agree with you. I think it’s an important conversation to have.
Anne Milgram: Two former prosecutors in the news in the last few days. One Chris Christie, who you used to deal with because you were the attorney general when he was the.
Preet Bharara: The US attorney.
Anne Milgram: The US attorney, he has a new book. Where he says a lot of stuff. I haven’t read the book. Are you gonna read the book?
Preet Bharara: I was not planning on it.
Anne Milgram: Do you want me to read it? I sort of feel like I lived through some of it.
Preet Bharara: No, you should read my book.
Anne Milgram: I have read your book and I loved it.
Preet Bharara: That’s two plugs in 45 minutes.
Anne Milgram: But Christie is out and it feels like he was with the campaign for a hot minute but it seems like a lot of it will be about his experience with the president and the president’s lack. The piece I saw which I thought was kind of interesting was the president’s lack of understanding that firing Flynn, that the president and Kushner both thought that firing Flynn would put an end to the Russia inquiry and the Russia crisis and sort of that was brewing and …
Preet Bharara: And Christie says that he laughed and he was asked, “Why are you laughing?”
Anne Milgram: And said, “No, way.”
Preet Bharara: He said, “Well, because Kushner it’s not going to put the end. And obviously, it’s his own account and people’s own accounts can be self-serving. I thought it was interesting about Chris Christie apart from his book on Sunday when asked about the strength of the indictment against Roger Stone said, “He thought it was devastating.” So that’s someone who doesn’t …
Anne Milgram: Yeah, Chris was the US attorney for eight years, so yes.
Preet Bharara: The other one, Kamala Harris. Who I know fairly well. She was the attorney general in California. When I was the US attorney we did some … Collaborated on some things and did some events together. She announced …
Anne Milgram: I know her … Just to digress for one second. I know her because every year there’s a female attorney general’s dinner for all current and former female attorneys general which is in part because there still have not been enough in the country and so we can get together in a room in Washington D.C. during one of the meetings. And so, Kamala and I did not overlap but we got to know each other through this fantastic dinner that’s held every February in Washington.
Preet Bharara: So we don’t usually talk about politics and it’s not the focus of this program and then I don’t expect it to be but it’s interesting to see how a former prosecutor will navigate issues about their prior career in criminal justice particularly if you’re running in the Democratic primaries. I’m sort of interested to see how you do that. I think there’s some people and I’m sure it dealt with this, who think prosecutors are terrible and all they do is try to run up convictions and send people to prison and don’t appreciate how important the job of deterrence is, how important the job of public safety is, how important the job is of prosecuting crimes that protect the most vulnerable people, whether it’s people who are vulnerable to gang violence, or sex trafficking, I know you did a lot of work in sex trafficking or dealing with public corruption. And also civil rights which I know you’ve dealt with and making sure that everyone is treated equally including people who are in prison. And we did a lot of cases in that regard that I talked about in the book at Rikers Island as well. So most people …
Anne Milgram: I think Kamala will be asked about all this and look you make great points. I think it’s really interesting. There’s a lot I think that is terrific about her background and her career as a local prosecutor and then as a state AG. I do think that there’s a sort of split on the left of, “Should you be a prosecutor in America today?” I personally think the answer is absolutely, yes, that this is a longer conversation about why that discretion is so key and why people with good judgments should exercise that discretion, how important it is. But there are also a lot of real issues around criminal justice in our country and need for reform. And so I think at this intersection, she’s going to be asked a lot of questions about potentially cases that she did and the one thing I’ll say about her, at least so far, is I think she welcomes those conversations and this dialogue on exactly the things you just raised and I think that’s right. I don’t think having been a prosecutor or having been a defense lawyer should be disqualifying for president of the United States and obviously, we’re sitting here looking at a businessman as a real estate person who is president of the United States. But I mean …
Preet Bharara: Right. And the Starbucks guy.
Anne Milgram: And the Starbucks guy. There’s certainly will be a lot of questions asked about all their backgrounds and look that’s fair game. We should be asking questions about the work that everybody has done who wants to be president.
Preet Bharara: Pay close attention, Anne, for when you run for office.
Anne Milgram: I thought you were going to announce my candidacy when you …
Preet Bharara: Well, the two of us are the only person who can run for president. I would vote for you.
Anne Milgram: Well, I would vote for you.
Preet Bharara: All right.
Anne Milgram: Move to change to the constitution.
Preet Bharara: Until next week. We went far longer than we expected. Maybe that’ll happen more and more as the news warrants. But that’s all the time we have for today. We’ll be back next Monday. So send us your questions to email@example.com.
Anne Milgram: We’ll do our best to answer them.
Preet Bharara: Hey, Insider listeners if you haven’t had a chance yet check out the new CAFE store where you can find original stay tuned merchandise like T-shirts and hoodies and mugs. Maybe you’ve spotted it at our live shows or on social media but now you can find it online at shops.cafe.com. And since you’re our Insiders use the code Insider20 when you’re checking out and you’ll get 20% off your first purchase. That’s Insider20 when making your purchase. So head to shop.cafe.com to check out the stay tuned swag and wrap your favorite podcast, that’s shop.cafe.com. This is the CAFE insider podcast. Your hosts are Preet Bharara and Anne Milgram. The producers at Pineapple Sreet Media are Kat Aaron, Janet Weiss-Berman and Max Linsky. The executive producer of CAFE is Tamara Sepper. And the CAFE team is Julia Doyle, Calvin Lord and a Vinay Basti and Geoff Isenman our music is by Andrew Dost. Thank you for being a part of the CAFE insider community.