CAFE Insider 02/25 Transcript: The Usual Suspects

CAFE Insider 02/25 Transcript: The Usual Suspects

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From CAFE Insider Episode 14, ‘The Usual Suspects’

Preet Bharara:              From Café, this is Café Insider. I’m Preet Bharara.

Anne Milgram:             And I’m Anne Milgram.

Preet Bharara:              Hi Anne.

Anne Milgram:             Hi, good morning.

Preet Bharara:              Did you watch the Oscars?

Anne Milgram:             Well, yes, but I didn’t make it to the end. I was very close, but I did, I have read about all the award winners.

Preet Bharara:              You read about them?

Anne Milgram:             I read. I saw about half of them.

Preet Bharara:              Did you see Green Book?

Anne Milgram:             I did not see Green Book. Did you see Green Book?

Preet Bharara:              I have not seen Green Book.

Anne Milgram:             I’ll tell you what, Friday, Saturday night we stayed up really, really late ’cause my husband and I had not watched a single Oscars film. And we were like, “All right, we’ve got do it.” We played the odds. We both also wanted to see Roma, but we also played the odds. It was nominated for so many. And we dug deep. We stayed up late to watch it.

Preet Bharara:              Fall asleep. Dead asleep.

Anne Milgram:             No, I made it through. Yeah, I made it through but it didn’t win.

Preet Bharara:              It didn’t win, right.

Anne Milgram:             And it was the only one I’d seen.

Preet Bharara:              Did you watch A Star is Born?

Anne Milgram:             I did not. Have you seen it?

Preet Bharara:              There was a nice … I saw it.

Anne Milgram:             Yeah.

Preet Bharara:              It’s a nice performance.

Anne Milgram:             I did see their performance. Very nice.

Preet Bharara:              Lady Gaga and Bradley Cooper. That was, for many people, the highlight of the show.

Anne Milgram:             I didn’t know he could sing. I guess if I’d saw the movie I would have known that.

Preet Bharara:              Should we sing Shallow now?

Anne Milgram:             Definitely no.

Preet Bharara:              That would be, that would be an extra premium.

Anne Milgram:             That would be-

Preet Bharara:              That’s the insider, insider.

Anne Milgram:             -we have to pay everyone! Yeah. I’m just speaking for myself.

Preet Bharara:              Why don’t we stick with what we know?

Anne Milgram:             Good idea.

Preet Bharara:              There’s a lot to talk about this week like every week. The big thing everyone’s talking about, I ran into you at the studio-

Anne Milgram:             At CNN.

Preet Bharara:              In the makeup room at CNN in Friday. Because everyone has been saying the Mueller Report is coming, there was breathless report on Friday, on Thursday actually, that it could be submitted to the Attorney General as soon as that Friday, certainly this week. And there was so much chattering about it that the Justice Department put out word, which is very unusual, that’s not happening this week.

Anne Milgram:             Yup.

Preet Bharara:              Quick note on that, and I wonder what people know and does it rank speculation? Is it still far off? Was it the case, that for political reasons, it would have looked terrible to submit the report to the AG while the President and the Vice President are both out of the country?

Anne Milgram:             Right, that’s possible.

Preet Bharara:              I don’t know. Do you have a thought?

Anne Milgram:             And I think a couple things. One is that it wasn’t clear where that information was coming from that it was coming last week. There were unnamed sources or whatnot. It was a lot of speculation sort of put in the media. The second piece is that I think it’s always been true that even when Mueller submits the report to Bill Barr, would you expect to see it that day?

Preet Bharara:              No, although some people have made the point, and everyone’s just sort of speculating and conjecturing and other synonyms for those words-

Anne Milgram:             Oh no, here come the [inaudible 00:02:30].

Preet Bharara:              -that politically it might make sense for there not to be a long lag between the submission of the report and when it becomes public because that’s the period of time which conspiracy theories abound-

Anne Milgram:             Completely.

Preet Bharara:              -and people will be making stuff up.

Anne Milgram:             It will reach a fever pitch of why have they not released it. But I still, well I think-

Preet Bharara:              But you’re right. I think, I think it’s going to take a while. They’re going to have to digest it, figure out what they make public, if anything. And we’ll get through what some of those considerations are.

Anne Milgram:             Yup.

Preet Bharara:              But I have a fundamental question. And you like me, have had our noses in the regulations-

Anne Milgram:             Right.

Preet Bharara:              -and you know the very thoughtful people who subscribe to this podcast don’t mind us getting, I think, in the weeds a little bit. But there’s a federal regulation that’s very simple, but that confuses me a little bit given all this talk about a report. And it’s, if you’re playing at home, it’s 28CFR Section 600.8. It’s one of the preexisting Special Counsel regulations and there’s a Subsection C. And Subsection C says, “Closing documentation.” And it’s a very simple sentence, really all that’s written about the requirement of submitting a report to the AG. And it says, “At the conclusion of the Special Counsel’s work, at the conclusion of the Special Counsel’s work he or she shall provide the Attorney General with a confidential report explaining the prosecution or the declination decisions reached by the Special Counsel.”

Preet Bharara:              Now when I look at that and I think what does work mean? You still have a trial pending against Roger Stone.

Anne Milgram:             Right.

Preet Bharara:              You have all sorts of other bits of litigation in pieces out there, redacted documents that indicate there’s other investigation to be done. It strikes me as weird, at first blush, that there would be a report when it’s not supposed to come until the conclusion of the Special Counsel’s work. So why would there be a report now?

Anne Milgram:             Right. So, that’s a good question. And it is definitely going to come before all the work is over, in my view.

Preet Bharara:              Even though it says, “at the conclusion of the work”?

Anne Milgram:             Yes.

Preet Bharara:              Okay. Let’s explain that to people.

Anne Milgram:             I think the question is how do you define work. But I think that what it looks like Mueller’s been doing is setting these cases up, making decisions about prosecute, don’t prosecute, staffing those teams. For example, think about Roger Stone. They’ve got a team in place. I actually think Stone might not be the best example I’ve just given because they’ve just executed search warrants.

Preet Bharara:              But you were staring to say …

Anne Milgram:             What I was basically going to say is he’s built a team to go forward, to prosecute that case. And he’s made the core decision do we charge or do we not charge? The rest is sort of somebody prosecuting the case through trial and sentencing.

Preet Bharara:              The particular thing he did, I thought you were going to say, is there are a couple of Special Counsel members of the team, but there are also, I think, eight U.S. As, Assistant U.S. Attorneys-

Anne Milgram:             Exactly.

Preet Bharara:              -in the D.C. U.S. Attorney’s Office that are on the case making the hand off much easier.

Anne Milgram:             Yes, and it’s been reported that they’ve been spending, that the Special Counsel folks have been spending a lot of time with D.C. U.S. Attorney folks. And so I suspect that’s true. And I think that it’s always been Mueller’s plan to make this sort of court charging decisions, which are critical and among the most important. And then the go forward, he’s going to entrust it with good lawyers. And remember a lot of the Special Counsel lawyers are either DOJ Attorneys or AUSAs in offices and they can continue and try those cases, even if someone came back, you know wasn’t located in Washington, D.C., they could still be on that case and try that case. So it’s not ending.

Preet Bharara:              Yeah, they haven’t been hired fresh by the Special Counsel. They haven’t quit their jobs. Many of them, I think most of them, are on detail from their respective offices.

Anne Milgram:             And just to be fair to Mueller and sort of why I think he’s making this decision, trials can take a long time. Particularly think about a lot of the defendants in these cases are out. Roger Stone was not detained by the judge at this time. So the case will go forward with motions. They’ll be back and forth. And then the case will be set for trial. And that could be a year, even a year and a half, two years away. And so what I think Mueller is doing is saying this is the core work of the Special COunsel’s Office. This other piece I can entrust to different people.

Anne Milgram:             The other thing I noticed about this regulation, Preet just to sort of ask you about this, is that the report explaining the prosecution or declination decisions. What is, what is a decision on a President you can’t indict? Right? I mean you’re not-

Preet Bharara:              Yeah. So I think it’s easy to understand if you’re thinking about anybody other than the President. So presumably the content of this confidential report will have, among other things, a discussion of, if it’s true, they thought about, they did some investigation of, for example, Jared Kushner.

Anne Milgram:             Right.

Preet Bharara:              And they decided not to prosecute because he’s not immune to prosecution even under any OLC guidance-

Anne Milgram:             You’re saying hypothetically?

Preet Bharara:              Hypothetically.

Anne Milgram:             They do investigate … Okay.

Preet Bharara:              Yeah, hypothetically if they thought to investigate Jared Kushner for something, as a hypothetical, and they chose not to bring a case, not to bring an indictment against Jared Kushner. According to the regulation you would expect that there would be at least one paragraph or maybe some pages explaining to the Attorney General why that subject of an investigation was not charged. That’s a declination decision.

Anne Milgram:             Right.

Preet Bharara:              The harder question, which you asked which I’ve been avoiding because I don’t know the answer to it, is what if they had been, and it seems like they have been, investigating the President himself with respect to possible conspiracy and also almost certainly with respect to obstruction. What do you put in your declination paragraph or paragraphs? I suppose you could have a variety of choices. I suppose you could be minimalist and say, “We looked at these various things. Without going into detail because it’s mute because of the OLC opinion and the prevailing guidance that you can’t prosecute a sitting President, that’s the reason for our declination.”

Anne Milgram:             That seems wholly unsatisfying.

Preet Bharara:              But it would be better for the President and for others if they made the decision in the absence of such guidance. If there was not sufficient evidence then they might say that.

Anne Milgram:             Right. So I think one of the interesting questions here is gonna be what is declination decisions mean. And does … I think it’s very possible Mueller could write a paragraph that says, we found sufficient evidence to present a case to a Grand Jury, for example, against the President, but did not bring it because of the OLC regulations. But here’s the evidence we found. It’s also possible, because I think you and I both talked about we don’t know what the outcome will be yet, it’s also possible that he could say we did not find sufficient evidence. And then I would expect it to mirror any other individual that Mueller has investigated. Take your example of Jared Kushner. I still think Jared Kushner is an outstanding question. Donald Trump, Jr., is still an outstanding question.

Anne Milgram:             Let’s say that Mueller decided not to prosecute them. And again, this is completely hypothetical, or one or both of them. I just don’t want someone to listen to a part of the podcast and be like, “Oh no! Preet said …”.

Preet Bharara:              If you want to play a drinking game at home every time Anne or I says hypothetical, take a swig.

Anne Milgram:             Or report. We could fill out the card today.

Anne Milgram:             So I think whatever he does, whatever Mueller’s team does with declination generally, should be mirrored if they decline on the President. It should be the same model. But here’s what I think is really hard, ’cause I think you and I probably … When I was at the Department of Justice and when you were U.S. Attorney or in the Southern District, we’ve probably both written memos like this.

Preet Bharara:              Yeah, written and read many, many, many of them.

Anne Milgram:             Yes. And so I remember doing a very lengthy memo about a case that there was a question of whether it would ever be made public. And the decision was no, we won’t make it public because we made a decision not to charge.

Preet Bharara:              Right.

Anne Milgram:             And that’s the practice of the Department of Justice for a variety of reasons, most fundamentally fairness to somebody who there’s insufficient evidence to charge with a crime. This is the entire Jim Comey/Hilary Clinton conversation.

Preet Bharara:              Right. So let’s transition then to the second question, which your comment brings us to. And that’s … The first question is what does Mueller provide under the guidelines to the Attorney General? That’s a confidential report. Clearly confidential. Then the Attorney General has to make a decision about what, if anything, to submit to Congress and/or make public otherwise.

Anne Milgram:             And just to your point on that, I think where you and I are both coming down on, is that whether it’s a sentence, a paragraph or 10 paragraphs, there’s a lot of latitude in the regulation. So what decision Mueller makes, we don’t know yet. And I think whatever he picks to do he’ll be consistent, and probably I would guess conservative, that we’re not going to see a 500 page report.

Preet Bharara:              Those two things are related to each other, right? So, if Mueller does something that’s minimalist and gives it to Barr, the likelihood that we will see a large percentage of the Mueller Report is higher because he will have been minimalist. If on the other hand Mueller decides like sometime AUSAs in my office used to do, if it was a close question they might write a declination memo-

Anne Milgram:             Right, but a long one.

Preet Bharara:              -with respect to a sitting member of the State Assembly, this happened, against whom there was not enough evidence, but it was a close question. And I needed to understand what the reasons were so we weren’t walking away from a viable case. It might be 20 pages on one person.

Anne Milgram:             And to make that decision … Right, because you need to understand what evidence you have and how that evidence relates to every element of the potential crime. And so it is a very lengthy, detailed type of memo when you’re making a sensitive decision where you think you may not have sufficient evidence.

Preet Bharara:              Right.

Anne Milgram:             Or you may, but you’re on the fence.

Preet Bharara:              Right. So if Mueller, on the other hand, is not minimalist and they’re very thorough and they do substantial legal analysis and factual analysis with respect to a number of people, and in some ways we see them being very thorough, the Paul Manafort sentencing submission was 25 pages, but it had 775 pages of additional documentation. Then when it becomes known, when I imagine it would be, that the Mueller confidential report was a 1000 pages long-

Anne Milgram:             And we saw three.

Preet Bharara:              -and we saw three it’s going to put more political pressure on them.

Anne Milgram:             I agree.

Preet Bharara:              So getting into this question of what the Attorney General will have to provide to Congress, there’s only one thing that I see in the regulation, the next regulation, which is 600.9, is that “the Attorney General will notify the Chairman and Ranking Minority Member of the Judiciary Committee of each House of Congress” basically of every occasion on which, if it happened at all, the Attorney General overruled some proposed action by the Special Counsel. And that seems reasonable because you want to know what kind of supervision there was, but assume there was no overruling of the Special Counsel’s actions by the Attorney General that he doesn’t have to provide anything.

Anne Milgram:             That’s right. In Subsection C says, “The Attorney General may determine that public release of these reports would be in the public interest to the extent that release would comply with applicable legal restrictions.” So, that’s a may. That means it lies within the discretion of the Attorney General, William Barr, do decide if something should be made public or not.

Preet Bharara:              So some of those considerations, you already mentioned one. We’ll come back to that in a second, but one consideration is the presence of classified information, presumably people can redact.

Anne Milgram:             Yes.

Preet Bharara:              And you can get the jest of things. We’ve seen a lot-

Anne Milgram:             We’ve seen a lot of blacked out.

Preet Bharara:              A lot of examples of that sometimes not perfectly done, but often it’s the case. The other is Grand Jury information, depending on the nature of it.

Anne Milgram:             You could go to a court and get that waived by-

Preet Bharara:              Yeah, I know somebody, one of our, one of our friends who talks about these things suggested to me over the weekend, “Well don’t you think that Mueller has already thought about that and may already have an order from a court in his back pocket to allow the release of Grand Jury information?” Maybe.

Anne Milgram:             And by the way, it’s pretty common in investigative Grand Juries that the lawyers, the prosecutors would go to the judge and ask for a Waiver of 6E, which is the federal rule that says the Grand Jury information is secret and you can’t share it. And the judges grant that sort of routine, not routinely because it doesn’t come up that often, but there’s a lot of precedent for judges having said, “Okay, yes, you can share that Grand Jury information.”

Preet Bharara:              So that brings us to the next consideration, which you’ve already mentioned, and that is the departmental policy and practice of not, you know, putting out derogatory information about somebody you haven’t charged. I talk about this in my book. This is the 15 minutes in. I plug my book. Because there’s an element of fairness here. You investigate someone for a long period of time, you don’t have the goods to bring a charge. There’s not going to be a trial where they’re going to defend themselves and yet you still say all sorts of otherwise confidential information about them and that’s what in part got Jim Comey in trouble with respect to Hilary Clinton.

Anne Milgram:             Yeah, I mean the, when I was at the department sometimes we would send a letter saying that we have closed the investigation and we only did that in cases where it was publicly reported that the Department of Justice was investigating. And so the person would come to us and say essentially, “I have this over my head. Everyone thinks I’m still under investigation.” But those letters were one paragraph long saying “you’re no longer under investigation. That investigation has been closed,” or something like that.

Anne Milgram:             And you, I know when you were U.S. Attorney I remember in a declination of a political corruption case and now I’m forgetting which one. There were a number of them. But you wrote a very short, to the point sort of document, I think basically saying there’s insufficient evidence.

Preet Bharara:              Yeah, essentially a paragraph.

Anne Milgram:             Yeah.

Preet Bharara:              If we made any comment at all. The only reason you make a comment is that the investigation is on. And we closed, as I’m sure you did, we closed a number of investigations that nobody ever knew we had started-

Anne Milgram:             The vast majority, yes.

Preet Bharara:              -against people that are completely unknown and against people who are quite well known.

Anne Milgram:             Yes, the same. And that’s the vast majority. This is obviously, this is a very different circumstance than what we’ve seen the in the Department of Justice before. And I wanted to talk to you about this because sort of my gut, being a long time DOJ and lawman prosecutor, is that there really is a fairness question here about not providing information. If you can’t charge, you can’t charge. You’ve made a decision. Again, assuming that what Mueller would say if he talked about it is “I would have asked for a charge” if he was going to go forward. And so that’s one bucket, which I think, I would assume would be part of the memo that, the report that Mueller does. But the more complicated bucket is definitely this question of if Mueller decided there was not sufficient evidence to charge, is there sufficient public interest around this question to understand what the evidence was and was not in this space? And I sort of, my first instinct is it makes me really uneasy. I was very uneasy with Jim Comey going to the microphone on Clinton and saying she’s not guilty, but she did bad things.

Preet Bharara:              There’s one irony here that we should focus on for a second. And that is notwithstanding all this talk and Bill Barr at his confirmation hearings said the same thing that you’re not supposed to unload negative information. And notwithstanding the memo that Rod Rosenstein wrote about Jim Comey.

Anne Milgram:             Right.

Preet Bharara:              When the Congressional Republicans were seeking more derogatory information about Hilary Clinton and her emails and other sorts of things in 2017. At various points the White House put a lot of pressure, the White House itself-

Anne Milgram:             The Department of Justice.

Preet Bharara:              -to comply and to give that information even though there was no charges. And they did. And so that is a precedent that’s going to be a little complicated to go around.

Anne Milgram:             And by the way, I was sort of giving you my first gut. I actually don’t, I’m not satisfied with that as an answer in a matter that is a public, you know, a very well known public investigation of the President of the United States. And so I feel, I don’t know how you feel about this. I’d love to get your thoughts on it. I feel a little uncertain, to be honest, because, and I think, by the way, you know Mueller tends to be by the book on this stuff. And so he will lean towards what I just said, which is if you can’t prove it you don’t talk about it. But there is a real flip side here of public interest. And there’s a rare argument to be made that it’s better for the country to have everything out there, to have that conversation about it and then we move on.

Preet Bharara:              But there’s a distinction that arguable that you can make between his business associates, other folks and the President himself. Because remember the President himself is the only one who has this sort of much talked about “immunity” from prosecution while he’s a sitting President. And is the one person in connection with all this, you know, universal folks who are subject to a political process of removal and judgment, which is known as impeachment and trial in the Senate.

Anne Milgram:             Right.

Preet Bharara:              And so I think you can make an argument. I want to think about this more. We’ll be talking about it more. That this policy against releasing and unleashing derogatory information about someone who is charged is one thing when you’re talking about ordinary folks. It’s quite something else when you’re talking about the sitting President of the United States, especially because-

Anne Milgram:             Because the impeachment is the remedy.

Preet Bharara:              Impeachment is the remedy. And so that’s why when people say is Mueller going to follow the Leon Jaworski model of getting a roadmap. I don’t know if he’ll quite do that. And I think he’s more, as you say, legally [crosstalk 00:18:48].

Anne Milgram:             And that’s the Watergate Special Counsel Report.

Preet Bharara:              Right. It seems, it would seem odd to me, given the lay of the land, if there were lots and lots and lots of pieces of evidence that suggest that some makeup of Congress could plausibly impeach the President depending on your point of view that you wouldn’t provide that information in a report.

Anne Milgram:             At least to Congress and very possibly to the public.

Preet Bharara:              Yeah, it would be a little bit, I think, arrogating to yourself the ultimate termination about whether or not the President abused his power. I mean if they found no evidence of it and they said the law is very clear and they decide themselves that there’s nothing to see here. That’s different. If on the other hand they think there’s plenty of bad stuff. We don’t think we can charge it because of the policy. We don’t think we can charge it necessarily because the elements that make up a violation of a particular federal statute are tough to make out and we don’t want to undo an election based on a somewhat risky prosecution even if we could.

Anne Milgram:             Right.

Preet Bharara:              That’s very different from deciding altogether that no reasonable Congress could find articles of impeachment or an abuse of power.

Anne Milgram:             I think that’s a great point. I also think, he’s also a Special Counsel and his job is to investigate a very serious question of whether or not there was a conspiracy collusion with the Russian government. So there is an overall national security issue. And a question for all Americans that I think is different then our standard prosecutions of did somebody rob a bank? And so I think it’s really important to distinguish that.

Anne Milgram:             By the way Preet, excellent word. What was it? Aggregating to himself?

Preet Bharara:              Arrogating.

Anne Milgram:             Arrogating. That’s like a, I’m sorry. Preet wins the grammar award! I was like wow! You distracted me from my second point.

Preet Bharara:              And it’s also [inaudible 00:20:32].

Anne Milgram:             No comment! One other point, can I make one other point on this quick?

Preet Bharara:              Yeah.

Anne Milgram:             The thing is we’re thinking about in terms of people who have been prosecuted. I think the report becomes really interesting when it comes to the President, but people who have been prosecuted and people who are currently being prosecuted, they will literally just attach those indictments, I think.

Preet Bharara:              Right.

Anne Milgram:             Right? I mean they’re not gonna talk, they’re not going to talk outside of the corners of the indictments or the existing public documentation that already exists. And so it’s just important that people know it’s not like Michael Flynn was charged and pleaded guilty. And it’s not like they’re gonna see another 20 pages on Michael Flynn, in my view. The indictment and the charges will stand for themselves.

Preet Bharara:              We should also just point out one other possibility, which some listeners will not like. It could be the report is not so bad for the President. And no matter what the report says the President likes to say anytime anyone is in trouble that it vindicates him even though there’s no vindication. It may be that all of this speculation and controversy about the release of the documents is presupposing something. And if it turns out not to be so terrible and there’s a flat statement that the President didn’t commit crimes, which I think is possible, then Bill Barr is going to be rushing to release it all to Congress immediately.

Anne Milgram:             I agree. And I think, we haven’t talked about the politics of this, but I personally think it is going to be very difficult politically for them not to release the report because at the end of the day I think Americans want to know what the investigation found, what it didn’t find. And the reality of politics and sort of life is when you don’t see something you imagine it to be far worse than it often is.

Preet Bharara:              Yes.

Anne Milgram:             And you know the spec, the sort of vortex creates this incredible amount of speculation about what’s in there. And so it’s hard for me to see that they can win in any way by not releasing it.

Preet Bharara:              Yeah. What the likelihood is, as it often is the case in life, it’ll be a mixed bag. And there’ll be some stuff that the President will be happy about because it gets him off the hook with respect to some aspects of the investigation. And there’ll be other stuff that is bad for him. And they’re going to have to balance overall release or not release. That’s going to be the dilemma.

Anne Milgram:             Right. I think that’s right. Yup.

Preet Bharara:              Let’s move on to the second topic after a long time on the first topic.

Anne Milgram:             Yes.

Preet Bharara:              So Michael Cohen, the President’s – I’m going to use another big word – erstwhile friend and personal lawyer.

Anne Milgram:             Big words today, Preet.

Preet Bharara:              Yeah, you know arrogate, erstwhile. That’s when you get premium.

Anne Milgram:             Yes.

Preet Bharara:              You get the big words in the premium. The erstwhile personal lawyer after some fits and starts and postponed here, he’s going to testify.

Anne Milgram:             He’s going to have a big week.

Preet Bharara:              We’re taping this on Monday.

Anne Milgram:             Yes.

Preet Bharara:              February 25th. He’s testifying, unless it gets canceled at the last minute, on Wednesday.

Anne Milgram:             And before that in private session tomorrow and private session. And then Wednesday publicly.

Preet Bharara:              Right.

Anne Milgram:             And Thursday in private session. So he’s, that’s a hot trick.

Preet Bharara:              ‘Cause he’s on the hot seat a lot.

Anne Milgram:             Yup.

Preet Bharara:              Yes. And the Chair of the Oversight Committee has put out quite a list of topics that they intend to ask Micheal Cohen about. They include the President’s debts and payments relating to efforts to influence the 2016 election. The President’s compliance with financial disclosure requirements. The President’s compliance with campaign finance laws. The tax laws. Potential conflicts of interest. His business practices. The Trump International Hotel in Washington, D.C. The accuracy of the President’s public statements. I mean all of these things-

Anne Milgram:             it’s a lot.

Preet Bharara:              It’s a lot. So how big of a circus? What’s it going to be like on Wednesday?

Anne Milgram:             I mean let’s break this down a little bit, but what we’ve seen from Micheal Cohen so far, we’ve seen him plead guilty in court. And by the way, every time Preet or I say plead or pleaded, we look at each other. We have a moment on grammar.

Anne Milgram:             So he pled guilty in open court. And his statement’s there, his allocution, which is telling the judge what he did and why he did it. Then there’s the interview he gave the next day. I think it was ABC News. I may be wrong about that. But what we haven’t heard yet are the real questions about, and conversations about how involved was Donald Trump? What did he do? When did he do it? Where was he? What conversations did you have? Who else was in the room? There is a lot that we know that Michael Cohen knows-

Preet Bharara:              Can you answer those questions, ’cause the way you did it-

Anne Milgram:             I am available.

Preet Bharara:              -is going to be-

Anne Milgram:             Wednesday morning.

Preet Bharara:              -I dare say is going to be better than how maybe they get asked.

Anne Milgram:             This is the challenge, right? Is to ask the questions like a lawyer or an investigator to basically go methodically through them and to push were you think there’s an opportunity to push and say, “Who else was there? Did you have any phone calls about that meeting?” Again, just to really understand what the President did, when he did it, who he did it with and what’s the universe of people who could provide information about that. And so on all those subjects you just listed, there is just a wealth of information that Micheal Cohen has that I think we could understand at the end of the day on Wednesday if it’s done well.

Preet Bharara:              Well I think we’ll probably get, we’ll probably get very quickly to the truth with five minute rounds of questioning. That’s very effective often in court. I would just ask for five minutes with the witness. I just need five. Just get me five.

Anne Milgram:             Every lawyer opposing you would love that. They’d be very excited.

Anne Milgram:             Why did it change? It used to be, you know, it used to be the sort of Congressional Hearings, right? You can think about Iran Contra, there are other examples. They were run by professional staff. The questioning was done by lawyers who worked for the committees. It wasn’t done in this sort of five minute political speeches. I don’t know, maybe it’s social media. Maybe it’s the fact that everything’s live now, but it really does take away from the ability to get information.

Preet Bharara:              I mean it would be great if people could sort of coordinate with each other or pick one thing to ask about for five minutes. Look, the most froth thing that has been said in court in a lot of this, you know across the spectrum of cases that we’ve been talking about for a year and a half, two years, is what Michael Cohen said in open court that he made those payments prior to the election in 2016 to alleged mistresses of Donald Trump, in coordination with and at the direction of Individual One, who’s Donald Trump.

Anne Milgram:             Which basically means that Donald Trump may be guilty of a campaign finance violation.

Preet Bharara:              Yeah, and that’s on the list of topics.

Anne Milgram:             Yes, yes.

Preet Bharara:              And you would think that someone, out of the box … I mean if you were the Chair and you had the first round of questions, I’m imaging Representative Milgram, which has a very nice ring to it, Representative Milgram, you would spend that time asking about that statement and all the facts surrounding that statement.

Anne Milgram:             Yes.

Preet Bharara:              What did you mean by that? When did he direct you? Who else did you coordinate with? What was the timing? Was it documented in an email?

Anne Milgram:             Had you done anything like this for him before?

Preet Bharara:              Yeah.

Anne Milgram:             Did he ask you to do it in any other circumstances? Were there any other women that you discussed with him doing this?

Preet Bharara:              And then the next person on your side continues.

Anne Milgram:             Yes.

Preet Bharara:              The Chair by the way … I don’t know how this works in the House side. My experience was in the Senate. The Chair has some ability, I think, to alter the pace of the hearing. When I did oversight hearings and my boss at the time, Senator Schumer was the Chair of the Subcommittee when we investigated the Justice Department. And we had-

Anne Milgram:             The firing of the U.S. Attorney?

Preet Bharara:              Yeah. We had Jim Comey come testify about the hospital in that back in 2004-

Anne Milgram:             When John Ashcroft was in the hospital and Comey rushed to the bedside. I don’t remember-

Preet Bharara:              Yeah, because Alberto Gonzalez, the White House Counsel, and Andy Card, the White House Chief of Staff, were going to try and go around Jim Comey. He was the Acting Attorney General because Ashcroft was in capacitated in the hospital, you know, very famous hearing on May 15th of 2007, I helped put together. The questions that I wrote for Senator Schumer were along these lines. It takes a while. I think, I can’t remember if there were objections or not, but he was the Chair. He spent 30 minutes in the first round.

Anne Milgram:             So there wasn’t a five minute restriction?

Preet Bharara:              No. It may have been for later folks, but sometimes when you have to get to the bottom of the facts, if it’s possible and if it’s fair, if the Chair takes 30 then I think you have to give, I think, you have to give that courtesy-

Anne Milgram:             To the Minority, of course.

Preet Bharara:              -to the ranking member.

Anne Milgram:             I think that’s right. I also, I do think if the investigations really are factual inquiries and oversight, then the way it’s set up with five minute increments is really not designed … Even the best questioners are gonna, I think, not be able to get the full facts and information that we would want to see. And so it’s a great, it’s a great point.

Anne Milgram:             The other thing I want to suggest is you know when you watch the Oscars and everyone’s live Tweeting really funny things and making comments, I’m just saying we could live Tweet.

Preet Bharara:              Yes.

Anne Milgram:             Just saying. It could be very interesting. We can Tweet the questions.

Preet Bharara:              We’ve talked about what the Democrats are going to ask.

Anne Milgram:             Yeah.

Preet Bharara:              I imagine on the Republican side they’re going to harp on one thing.

Anne Milgram:             That he’s a liar.

Preet Bharara:              Aren’t you a liar? Liar, liar pants on fire.

Anne Milgram:             And he should own that. He is a liar.

Preet Bharara:              He’s a liar.

Anne Milgram:             Exactly.

Preet Bharara:              He’s a convicted liar.

Anne Milgram:             Yes.

Preet Bharara:              He’s an admitted liar. This argument, what is this all about? It has some weight. This guy, he’s trying to cooperate now, maybe trying to get what’s called a Rule 35 Letter, which is a post conviction cooperation, which there is a procedure for-

Anne Milgram:             And can reduce his sentence.

Preet Bharara:              -could reduce his sentence.

Anne Milgram:             You know it’s not that common, right? And so we should say it’s not, people don’t always get Rule 35 Letters.

Preet Bharara:              Usually it’s beforehand.

Anne Milgram:             Yes, usually you cooperate beforehand. So it’s not, it’s not a guarantee. It’s kind of a long shot in my view, but he still is playing for a benefit. And it’s important to recognize that.

Preet Bharara:              100%. But it is also true that my former office really didn’t think clearly that he would be a viable witness. And never thought, and don’t think so far at least, that even if they could make a case against someone else that they would be comfortable putting him on the stand using him as a witness. Therefore, where does he belong as a witness in Congress?

Anne Milgram:             In the United States Congress.

Preet Bharara:              United States Congress. Because you know the standards are a little lower at the United States Congress. So look, there’s-

Anne Milgram:             Well his testimony won’t, well it won’t be used at first blush at least to bring crimes or to convict other people. And so it is a little different than a cooperation agreement. But it’s a serious matter. And I think Wednesday could be potentially really explosive for the President and for the administration. And you’re right to remind people that he has been convicted of lying.

Preet Bharara:              Not only lying, but lying to them.

Anne Milgram:             Right. Exactly.

Preet Bharara:              He lied to them.

Anne Milgram:             By the way, that is also what the Republicans are going to say. I mean it’s such an easy setup.

Preet Bharara:              Dude you lied. Come back and talk to me.

Anne Milgram:             Right. And then, well you’re lying now. Then you were under oath. Are you lying now? I mean it’s a very easy setup to discredit him. And I hope and I believe his lawyers would have prepared just to walk in and say, “Yes, I lied. And here’s why I lied. And I’m sorry I did it.”

Preet Bharara:              Yeah. The interesting thing that we should mention with respect to this potential post-conviction cooperation Rule 35 Cooperation, is that there are reports in the paper in the past few days that Cohen has met with SDNY prosecutors and so it’s not over.

Anne Milgram:             And remember that they, the Southern District folks could be investigating something related and have questions. And he said he would cooperate. So they would bring him in. It could be this. It could be other things. But yes, I mean he’s definitely continued that relationship.

Preet Bharara:              Yeah, they’re looking at the Trump organizations. They’re looking at the Inauguration Committee. And maybe Michael Cohen can provide information about those things. And look, there’s a spectrum of uses you could put a cooperator to. Obviously the ideal classic one that you see and read about and watch in the movies is the cooperating witness who wears a wire, gets information through conversations and-

Anne Milgram:             And testifies at trial.

Preet Bharara:              -and testifies at trial.

Anne Milgram:             Exactly.

Preet Bharara:              You’ll also have [crosstalk 00:32:06] cooperators who can provide you with leads that get you other information that you can corroborate without that person.

Anne Milgram:             Right.

Preet Bharara:              We’ve all had cooperators that we’ve known. You could never put that guy on the stand, but he can be useful.

Anne Milgram:             Right. That’s my goal. One thing that I would note about him lying, that when he allocuted and the Southern District I had a moment when he basically said, “Look, I’m sorry I did this. I did this all at the direction of Donald Trump.” Basically it’s all Donald Trump’s fault, but there was a part of the case that was campaign finance, but the bulk of that case was actually bank fraud related to the taxi medallions. So it’s actually, he’s, I don’t know how much he’s come to embrace the truth that he’s committed crimes across his career. It’s not just in his work with Donald Trump. It was also in his personal work with taxi medallions. And so I sort of had this moment of thinking he’s still, he owned it but he didn’t fully own it.

Preet Bharara:              By the way Anne, I hate to bring to your attention, you know you said in your answer [crosstalk 00:33:03].

Anne Milgram:             I’m gonna do what I just said Michael Cohen should do. I’m going to own it. I did say pled.

Preet Bharara:              Yeah.

Anne Milgram:             I did.

Preet Bharara:              Two other points about Michael Cohen then we should move on to Paul Manfort. This rogue’s gallery. [crosstalk 00:33:16]. I know. Then we’ve got Roger Stone.

Anne Milgram:             It’s Monday in the Rogue’s Gallery.

Preet Bharara:              The lovely gentlemen in Donald Trump’s orbit. He has two incentives that a little bit compete with each other. So the one incentive is to tell the truth this time because he now knows from personal experience you lie to Congress, you get in trouble, you get charged. And they won’t hesitate to charge him again. So an incentive now to tell the truth. And the other incentive though is payback.

Anne Milgram:             Right.

Preet Bharara:              He hates the President. He must understand the only reason he’s going to prison for three years is because of his association with the President who has attacked him.

Anne Milgram:             Threatened his wife and father-in-law also in Tweets, right? I mean we can talk about how those threats were, but yes, no question about it.

Preet Bharara:              So he has some incentive to go to town on Donald Trump, but then the question is does he have incentive to exaggerate those things in order to exact the payback that he wants ’cause this is going to be his moment having been in his mind, rehabilitated in some way and taking ownership of his conduct.

Anne Milgram:             Yes.

Preet Bharara:              It will be very interesting to watch.

Preet Bharara:              So let’s now move on from Michael Cohen to Paul Manafort, who has yet to be sentenced. So, so far Michael Cohen has received the most substantial sentence of anyone in the cross hairs of the Mueller investigation in three years.

Anne Milgram:             Right.

Preet Bharara:              Paul Manafort, everyone should recall, has two separate cases because he refused to waive the venue requirement. So he has the Virginia case and he has the D.C. case. And the Virginia case, the sentencing guidelines indicated a range of 19 1/2 years to 24 1/2 years. And that proceeding has not happened. It’ll happen in the beginning of March.

Anne Milgram:             It will happen first. That sentencing will happen first.

Preet Bharara:              And then in the D.C. case, there was a submission much waited for over the weekend. 25 page memorandum, 75 pages, I guess, of attachments, much of it redacted in which the guidelines range over 210 months. What’s interesting about that submission to me is it was pretty harsh about Paul Manafort. The Special Counsel said tough things about him. Called him hardened in some ways. And subject to recidivism because he doesn’t learn his lesson. But what they don’t mention in the memo, which I just think is a little odd, you know buried inside baseball, they don’t mention that the statutory maximum sentence that the judge can impose on Paul Manafort in the D.C. case is 10 years.

Anne Milgram:             Right.

Preet Bharara:              Two counts, five year maximum.

Anne Milgram:             Of conspiracy each of which has a five year maximum.

Preet Bharara:              Five year max. So the sentencing guidelines are kind of mute in this regard because they, you know 210 months is a lot more than 120 months, which is what 10 years would be.

Anne Milgram:             Yes. I agree. And I actually, I thought because of the way it was written that the media didn’t quite get this. There are a couple ways in which they were sort of arguing the sentence as, the 210 months verus the, and then it would say in one line, but it’s capped at 10 years. It is a little complicated because the conspiracy offense is a separate charge. So if you’re charging conspiracy to defraud the United States, even if the underlying crimes would mean longer sentences because the actual charge is conspiracy, conspiracy caps at five years. That’s the sentence you can get. You cannot get more than five years. And so it’s, when they look at the sentencing guidelines and figure out what it would look like under that five years. They do look at the underlying crime and the underlying conduct. But ultimately you’re right, the maximum sentence is, if-

Preet Bharara:              You can’t go beyond it.

Anne Milgram:             You can’t go beyond it. You can get five on each and five plus five is 10. That I know.

Preet Bharara:              Let me do, let me carry the one. Yes.

Preet Bharara:              The other thing people do not realize is that plea … So people might be asking why does he have so much of a, sort of a sweetheart plea agreement, two counts only when he committed all sorts of other crimes in connection with the D.C. case? And the reason is that plea agreement was negotiated in connection with cooperation.

Anne Milgram:             Completely.

Preet Bharara:              And so he got a bye and that’s why the capped him at 10 years. But then he broke the cooperation agreement by lying. And then the Special Counsel’s Office had the right at that point to recharge him.

Anne Milgram:             Yeah. And to charge him with additional crimes like perjury in front of the Grand Jury.

Preet Bharara:              Additional crimes that would carry a higher sentence and which could take you up to the guidelines range and they chose not to do it. They’re very tough on him in a lot of ways. They see he’s a 69 year old man. They see that they had eight counts of conviction on the Virginia case.

Anne Milgram:             With an incredibly long sentence, potentially.

Preet Bharara:              Correct. And they already have this guilty plea. We have this phrase that we use, prosecute to the fullest extent of the law. They’re not doing that here.

Anne Milgram:             I agree.

Preet Bharara:              Because it’s full enough given his age and given how much time he’s subjected to in the two different cases.

Anne Milgram:             Right. I mean it’s not saying that he will get 34, 34 1/2 years, but he could. And that’s the amount of exposure he has. And I think they probably also thought to themselves well if we charge him with perjury or something else, is he really gonna get more time? And the answer’s probably not. You’re right. He’ll be 70 in April. He very likely, I think, unless he gets pardoned will not survive a prison sentence. And so we are-

Preet Bharara:              Would you be advocating for, I wouldn’t be advocating for a 20 year sentence for him.

Anne Milgram:             No. I would not have that.

Preet Bharara:              Given his age and given the conduct and given everything else. My guess would be that the Special Counsel’s Office, even though they might not say this explicitly, will think something around 10 years is fair.

Anne Milgram:             Yeah, I think so too. I think so too. That’s where I would sort of, particularly given, given all the conduct and given the fact that there are two charges, sorry two cases. What’s really interesting is that the two conspiracy counts in Washington, D.C., that sentencing goes second. So what’s pretty interesting to me is that, that judge-

Preet Bharara:              The second judge.

Anne Milgram:             The second judge, Amy Berman Jackson in Washington, D.C., will get to watch. Manafort will be sentenced first in the Eastern District of Virginia-

Preet Bharara:              By Judge Ellis.

Anne Milgram:             -by Judge Ellis, where he faces 19 1/2 to 24 1/2 years. Then he goes to Judge Berman. Those cases were tried, were handled separately, and she will get to decide up to 10 years and whether or not that sentence run concurrent, meaning at the same time as the sentence that Judge Ellis gives Manafort. So if Judge Ellis, hypothetically gave Manafort 10 years, she could also give him 10 years and say it runs concurrent. So it runs at the same time, which means Manafort does 10 years. Or she could come back and say, “You know what? You’re gonna get five in addition.” So it’s gonna run consecutive. So hypothetically Judge Ellis give 10, she gives five. Manafort will look at 15. So she has a lot of power, I think, over how long Paul Manafort does in jail in some ways because she gets to go second and sort of decide what she thinks is fair.

Preet Bharara:              Yeah. And the interesting thing is also, I think the people may not appreciate, is that’s perfectly normal and reasonable for the second judge to see what happens in the first case and to alter her judgment depending on what happens. So in the scenario in which she thinks the guy overall, based on all the conduct, deserves a pretty big hit and suppose hypothetically that Judge Ellis gave him six months, she probably wouldn’t give the same sentence she was otherwise going to give.

Anne Milgram:             She’d probably give him 10.

Preet Bharara:              She’d probably give him 10.

Anne Milgram:             Yeah.

Preet Bharara:              Also, the government itself has decided to reserve what it’s position will be in the second case depending on what happens in the first case. So their original agreement that was voided, obviously, was that there’s certain kinds of overlapping conduct in the two cases like the tax crimes, for which the sentences should be concurrent based on fairness. They have now said, “Well we take no position on concurrent versus consecutive. But we reserve the right to have an opinion.” And I think they’re waiting to see what happens with Judge Ellis also.

Anne Milgram:             You know it’s interesting, the Special Counsel’s Office, it has not make sentencing recommend … They’ve been pretty, they’ve given a lot of deference to the court. And what they’ve done is basically say, we’re going to give you all the facts that we think are important and then we’re gonna … In the first Manafort they agreed that the sentencing guideline range is 19 1/2 and 24 1/2, but they didn’t say, and we are asking for a specific number. And they’ve done that consistently throughout the prosecutions, which is interesting.

Anne Milgram:             We have a question from a listener that says, “Hi Preet. I read that Cyrus Vance is getting ready to prosecute Manafort in state court resulting in a state sentence that can’t be pardoned by Trump. However, the same article mentions that if Manafort is pardoned for his federal crimes the state sentence runs the risk of being negated by double jeopardy. If there is a real risk of a federal pardon and double jeopardy at the state level, why not let the state sentence Manafort first? Thanks. Love the show, Amy from Brooklyn, Massachusetts.”

Preet Bharara:              So I saw that report too and clearly there are legal questions that arise when a state jurisdiction, DA’s office decides to prosecute someone who may have committed a certain kind of conduct after there had been a resolution in the federal system. In a lot of different states that kind of prosecution, the second prosecution, is not barred by double jeopardy because of this thing called the duo sovereign doctrine. New York is fairly protective. It has laws that make it harder, as you know, that make it harder to prosecute somebody if it looks like the offense conduct overlapped with the offense conduct that was at the heart of the federal conduct.

Preet Bharara:              So we got look careful about this ’cause Paul Manafort has been charged with various tax crimes. One, I think simplest way for the Manhattan DA’s office to proceed, and there would be other areas also, is to prosecute him for evasion of state taxes. There was a time in New York that I read up on very recently myself, educated myself, where you cannot prosecute somebody for state tax evasion if they have been prosecuted for federal tax evasion on the same income. People thought that was unfair, especially in the aftermath Leona Helmsley prosecution some years ago. That was a very famous case in New York. So they fixed that loophole and now it is possible to prosecute someone federally for tax evasion and also for state tax evasion even if the income is the same. Then there may be other areas of conduct that are distinct from what Paul Manafort is already on the hook for. So, that’s interesting.

Anne Milgram:             One thing I would just say about whether the feds or the states go first, as the Department of Justice has, had at least when I was there, a Petite Policy.

Preet Bharara:              Yes.

Anne Milgram:             Which is related to when the federal government will prosecute something first and when the state government will go first with a prosecution and how they figure that out. The general rule is, let’s say there’s an article in the newspaper that prompted federal and state investigations at the same time. As a rule when I was a DOJ we would defer and allow the states to go first if they wanted to.

Preet Bharara:              Absolutely.

Anne Milgram:             And then the feds would come second. And there are plenty of examples like that. The Rodney King prosecution in Los Angeles was first a state prosecution and an acquittal. And the feds went and prosecuted the officers. But there are a lot of other examples. However, what’s different here is that the feds have already charged Manafort. He’s been convicted at trial. He’s pleaded guilty in another case. It’s different. It’s not a question of they’re both starting at the same time now. The feds have brought a prosecution and the state is coming second.

Preet Bharara:              Yeah.

Anne Milgram:             Can I ask one more question? A Tweet, somebody Tweeted at you. @mondelle asks @preetbharara, 800 pages is a whole lot of writing. Your book has 800 pages, right?

Preet Bharara:              It is not 800 pages, but it is heavily redacted.

Anne Milgram:             Is like the Special Counsel memos [crosstalk 00:43:58].

Preet Bharara:              The contract called for, I think, 320 pages and I didn’t have that much to write. So I blacked out-

Anne Milgram:             The middle chapters.

Preet Bharara:              There’s like 60 pages of redaction.

Anne Milgram:             I would love to tell you about this case. And here it is. And it’s all like that.

Preet Bharara:              Right. And at the end it’s like, and that was my most satisfying moment.

Preet Bharara:              Roger Stone, we could talk about. He has a full gag order now imposed upon him so maybe out of respect for that we don’t talk about him.

Anne Milgram:             We won’t talk about it. I will say just an example of how to question a witness, his questioning was, that was serious questioning. And if anyone, I don’t know if we have a transcript of it anywhere, but it’s worth, it’s worth looking at because he really did, he-

Preet Bharara:              He’s a liar.

Anne Milgram:             He’s a liar.

Preet Bharara:              He’s exposed as a liar.

Anne Milgram:             Exactly. What’s amazing is that you really do see well I looked at it. I didn’t look at it. I mean you really do get a sense of what a liar he is on this question, but you also look at what a good, what good questioning should look like. And that’s just a pro tip for the United States Congress on Wednesday.

Preet Bharara:              There’s a difference, you know, all these sort of clowns and I think I would not run into any disagreement by calling Roger Stone a clown. And even Michael Cohen. And these other folks who are larger than life, who’ve gone around yelling at everybody, lying, dissembling, making stuff up, talking loudly over other people. You know it’s one thing to do that on cable television.

Anne Milgram:             Right.

Preet Bharara:              It’s another thing to do that in the Congress. But you know what? That nonsense stops in a court of law-

Anne Milgram:             In a federal court. Completely.

Preet Bharara:              -when you’re under oath and there are competent counsel and competent judges. It comes to a screeching halt.

Anne Milgram:             And it’s clear that he was shaken and that he was, you know, he was put on his heels in the course of the questioning. [crosstalk 00:45:42].

Preet Bharara:              It makes a difference if the person to whom you’re speaking at has the ability to put in jail. Well until we’re gagged we’ll keep talking.

Anne Milgram:             Yes. I’ll see ya soon.

Preet Bharara:              Thanks.

Anne Milgram:             And we’ll answer your questions. Send us questions.

 

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