Enjoy this transcript from the CAFE Insider episode 03/04: Truth, Lies, and Nepotism
Preet Bharara: From CAFE, welcome to CAFE Insider. I’m Preet Bharara.
Anne Milgram: And I’m Anne Milgram.
Preet Bharara: Hi Anne.
Anne Milgram: Good morning.
Preet Bharara: How was your weekend?
Anne Milgram: It was great, how about you?
Preet Bharara: It was good. I signed a lot of books this weekend.
Anne Milgram: Congratulations.
Preet Bharara: Right there, 20 seconds into the program.
Anne Milgram: That’s a new record.
Preet Bharara: Plug for the book. I don’t think I have lasting carpal tunnel syndrome, but a little bit.
Anne Milgram: Yeah, it comes from being a lawyer too.
Preet Bharara: Yeah, I guess that’s right. So that’s fun. That comes out in two weeks and a day.
Anne Milgram: That’s exciting.
Preet Bharara: Order your hundred copies right now, insiders. All right, so we got a lot to talk about as usual. Today I guess we gotta talk about some more issues relating to the Michael Cohen testimony, Jared Kushner’s controversy over security clearance, and what Jerry Nadler has planned for the Judiciary Committee. Maybe we start first with something that at least I had a chance to pine about for 30 something minutes at length on the Stay Tuned podcast last week, and that was Michael Cohen’s testimony. Which like all other things, even though it was just a few days ago and there were some blockbuster things that he said about the President’s character and also his involvement in criminal activity according to Michael Cohen, it still seems like a long time ago.
Anne Milgram: It does.
Preet Bharara: Did you have a reaction, just sort of a thumbnail reaction?
Anne Milgram: So, I’ll tell you. So first I watched some of it, but then I’ve had the chance since then to read the transcript, and I actually … I’m glad I had the chance to step back and read the transcript, and we can talk about that in a minute, but my reaction when I was reading it was I was not surprised by most of it, and I think that’s probably true for you as well. There were a couple of new things. You know, Donald Trump Jr. signing the check, being a part of the payment to Stormy Daniels was new. Cohen saying he was in the room when the president had Roger Stone on speaker phone talking about release of hacked Democratic emails, that was new.
Anne Milgram: Some of the details obviously about the conversations about Trump Tower Moscow, the six or more conversations I think with the president about the sort of [inaudible 00:01:59] Russia project, and also just the insight into how the president would operate. So the president wouldn’t say, and I think this is actually worth talking about just for a second, which is the president wouldn’t say, “I want you to lie about the Moscow Tower in Russia.” Which doesn’t surprise me at all having been a criminal prosecutor for many years. It’s sort of normally how these things go.
Preet Bharara: Yep, he said he speaks in code.
Anne Milgram: Yeah, and I think we’ve probably both seen this frequently, that it’s rare in particularly people who have a course of conduct where they often are trying to get over or push the boundaries and they start speaking code and they expect people to be with them, and by and large the people around them are.
Preet Bharara: You know, but I have a thought about that that I realized in the day after the testimony. If you think about the quality of the questioning by the Democrats and the Republicans, now the Republicans wanted to undermine his credibility, and as I said the other day, they spent a lot of time talking about the book deal and a movie deal, but there was actually a good amount of material to cross examine him on and to press him on and to undermine his credibility on. One of them is what you just talked about. So in the one case, Michael Cohen said, in a way that’s credible to you and me who have a certain kind of experience, that people speak in code and they don’t direct you clearly and concretely to do this or that. He says that about the Trump Moscow plan.
Preet Bharara: On the other hand, with respect to some other things that he implicates the president on, he testified very clearly and said in open court during his plea allocution that he did some things in coordination with and at the direction of Donald Trump. So, imagine how that would be in court when you say, “Well so in some instances you say that the president used code and other instances he knew quite well how to direct you to do something.” And on top of that, I think he testified fairly clearly that the president directed him to lie about whether or not Trump knew about the payments before the election. So which is it? Does he speak in code? Does he not speak in code? Do you just want to implicate the president no matter what? How does that work?
Anne Milgram: Yeah, that’s a great point. Did you find the cross examination … We should just sort of say that I broke the testimony into two parts, which is what you and I would talk about in a criminal case as direct examination where a witness who is your witness, meaning the Democrats called Michael Cohen to testify, he’s their witness essentially. And this isn’t exactly true in Congressional investigations like it is in criminal trials because sometimes in Congressional investigations people, all of the Democrats and Republicans have the same goal. Here I think their goals were very different. The Democratic goal was to get additional information against the president from Michael Cohen, to get more details about Michael Cohen’s allegations. In a direct examination, you ask the witness questions to elicit testimony. You want them to appear credible. You want corroborating evidence that makes them appear credible, and you ask questions often in a way to gain additional insight and information.
Anne Milgram: Cross exam is the other side, which here would’ve been the Republicans, which is when a witness is antagonistic to you and you want to essentially get that witness … You want to undermine that witness’ credibility or you want to show that witness to be a liar. There are a lot of ways to think about doing this. I was fascinated by the fact here that the Republicans, it was like one note basically.
Preet Bharara: Yeah. It seemed that their method and approach to undermine him and to make him seem a liar was simply to say, “You’re a liar.”
Anne Milgram: Right.
Preet Bharara: “Aren’t you a liar?”
Anne Milgram: And he said, “Yes.”
Preet Bharara: “Yes.”
Anne Milgram: And by the-
Preet Bharara: “But now I’m telling the truth.”
Anne Milgram: Yes, and by the 50th time he said it, I actually sort of felt like, okay, from the fifth time, even the first time the Democrat, the Chairman of the committee elicited you lied. So it wasn’t as effective as I think they probably expected it to be.
Preet Bharara: Overall I thought Michael Cohen was pretty credible. I gave pluses and minuses. On the negative side, he’s a convicted liar. True. On the plus side, he has even greater incentive not to lie going forward, and we’ll talk about this criminal referral that one of the House Republicans has made about Michael Cohen and his testimony. But then he also was cool and calm and collected-
Anne Milgram: His demeanor.
Preet Bharara: Didn’t take the bait. [crosstalk 00:05:59]
Anne Milgram: Yeah, his demeanor was good. Yes.
Preet Bharara: It’s not just positive, but it matters, especially in contrast to what we know his demeanor in real life has been before.
Anne Milgram: Right, that’s a good point.
Preet Bharara: With a lot of bravado and a lot of sort of thuggery and obnoxious conduct and behavior. He seems to have turned a corner, which is what you want when you have a cooperating witness on the stand in a standard case. But I made a point over the weekend, and I’ve made it in other places also, look, he was not a perfect witness. He has baggage. My one comment on the people who don’t like the president and they want the president to go down, and there a lot of such people, that doesn’t mean that the rules relating to credibility of witnesses just goes out the door. I marvel sometimes at the way some people who so badly want Michael Cohen to be the person who five minutes ago they hated and despised and thought was corrupt and a crook, all of which are true, they now think that he’s the angel of truth. It’s a mixed bag, and life is complicated, and cases are complicated, and witnesses are complicated, particularly ones who have admitted guilt to crimes.
Anne Milgram: Yeah, and credibility is a critical thing, and sometimes people are credible in part. That’s a hard thing I think for people to get their mind around. When I think about credibility, I always think, I do think about demeanor. I think about whether they were forthright, they told the good and the bad. Let’s come back on that one in a minute. They acknowledge their role. They are able to provide corroborating information or other facts that show that they’re truthful. One of the things I stumbled on with Cohen a little bit or I hedge on and hesitate on a little bit is you tell the good with the bad. In large part, he does tell I think … He gives a lot of information and he implicates himself, but it still felt to me like he was having a hard time admitting the greed part.
Preet Bharara: Here’s the other thing that’s sort of interesting about the way people are commenting on Michael Cohen’s testimony, and I made the point that there’s some ways in which Michael Cohen has a little bit of trouble as a witness. On the one hand, he said during his testimony that he had no interest in going to The White House or having job in the administration, when there’s some evidence and other people said that he did have such an interest. I watched and read with a mild bit of amusement that lots of people who don’t like Trump were prepared to parse out the language very specifically and say, “Well there are reasonable ways that you could harmonize those two things.” And that may be true, but the context in which we’re talking about this is not some esoteric exercise where linguists parse the language and compare them to each other. Yeah, those are arguments that would be made by the prosecution if he were your witness in summation. That doesn’t mean he doesn’t take a hit. The real world in which, again, we’re talking about criminal trials. This is not a criminal trial.
Anne Milgram: But a lot of it is applicable, how you question [crosstalk 00:08:42]
Preet Bharara: It’s totally parallel, and so normal jurors when they hear on the one hand that he seemed to be eager to have a job in The White House, which is relevant to his credibility because it maybe suggests that he has some reason to be disgruntled and to say things that are not true because he’s angry, the way they’re gonna view that is not gonna be through a parsed out linguistic analysis. That I think is an important point.
Anne Milgram: Right, and my takeaway on all that, which by the way I don’t think is a material lie that gets you-
Preet Bharara: No, it may not be. Right.
Anne Milgram: Right, and so I think that’s where I would draw the line. But my take on the Cohen thing is as follows, which is, and I’m speculating here so let me be clear. But I think he probably did want to go to The White House and that people who are saying, “Oh, he said he was interested in going to D.C.,” he probably did have an interest in that and then it came down to the fact that he was not gonna be The White House Counsel. He was not gonna be able to represent Trump and do the same things that he’d been doing. It’s a very different job.
Anne Milgram: He might not have been offered a job that he wanted, and he might have turned down opportunities that he had to join the administration that were not he felt right, or that were [inaudible 00:09:47] with what he wanted to be doing. So it’s possible that there is … It’s possible that he ultimately did turn down a job, but I think I stumbled also on this question of for him to say, “I never wanted to go to D.C.” If people are saying and it’s been reported that there are text messages back and forth where he was expressing at least some interest in it, that feels to me like it’s not completely credible.
Anne Milgram: Now the thing is, I think we do also have to be careful on how much focus and weight we give something like that, where it’s also I think fair to ask ourselves whether that’s an intentional lie or whether he’s now told himself, “I didn’t wanna go.” It could be that he didn’t get the job he wanted. It could be for a lot of reasons, but I do think that that’s one space that clearly Representative Jordan and others are gonna try to really blow open.
Preet Bharara: Yeah. My only narrow point on this is in a charged political atmosphere, people who are on Trump’s side are not clear eyed about how they view testimony, and people who are against Trump don’t view testimony in a clear eyed way. People want something to be true so badly on one side or the other that they can flip their position, even on a particular person, without necessarily paying attention to the hallmarks of what is truthfulness and what is falsity.
Anne Milgram: One question is his lawyer, Cohen’s lawyer, is with him at the testimony and has clearly reviewed everything. So it’s a little bit different than some scenarios where somebody’s just riffing off the cuff. I mean Cohen is prepared, and clearly would’ve been prepared for that question because there was an issue I think already with the Southern District on his interest in joining The White House. So this is not the first time the issue has come up, so I would assume, and you tell me if this is a bad assumption, and it may be, that his lawyer Lanny Davis had vetted his answer and was comfortable that it’s factually true, or at least consistent with enough facts and text messages and paper records-
Preet Bharara: Yeah, it may be. It may be, but I still gotta believe, and I don’t know all the facts and all the details and I haven’t reviewed everything, but my guess would be if he had been your client or my client, there would have been a way to talk about it truthfully that also doesn’t cause alarm bells to go off and look like a contradiction. There’s ways to finesse language and to say, “Look,” clearly so that people don’t have to go back to the other documents, in a way that is not so easy to criticize. Not only that, give fodder, which I don’t think is gonna amount to much for Representatives Jordan and Meadows to make a criminal referral to the Department of Justice on the testimony that Michael Cohen just gave. One of the issues there is whether or not, if there was a lie, was it material. And I think there’s a decent argument that it’s not. You wanna talk about materiality?
Anne Milgram: Yeah. Let’s talk about materiality, and then I wanna go back on one other piece as well. There’s always a question when it comes to lies, whether they’re intentional, meaning it’s something that the person who tells the lie knows to be false. So if I believe something and I tell you even if it turns out later that that’s false, I’m not guilty of perjury or 1001, the federal crime of lying to a federal official. So that’s important, the intentionality piece. The second piece is material, which means it has to be connected to the core question that’s being looked at. It can’t be, you know, I say the sky is green when the sky is blue. Nobody cares. It’s not relevant to the investigation being done by Mueller’s team or the US Congress.
Anne Milgram: Materiality, it really has been defined by the courts as it goes to the ultimate questions that are being asked. So when we think about it in terms of a criminal case for example, again, it has to be a fact that someone lies about that really goes to the heart of the question or would mislead someone as to the core of the investigation.
Preet Bharara: Yeah, so one statute puts it this way. Sometimes it’s nice to hear the language of the statute. It says, “The test for materiality is whether the false statement has a natural tendency to influence or is capable of influencing the decision making body to which it is addressed.” So the question of whether he wanted to go to The White House or not go to The White House doesn’t seem to go to the heart of the matter.
Anne Milgram: I agree. The one thing I wanted to say about cross examination and how you think about these things, and one of the reasons why probably you and I are both a little stuck on the Cohen White House thing is that when you think about how to cross examine a witness and what questions you want to ask them, to me you always think about if they’re telling the truth, what else would be there? What else is consistent with how they were acting and what is missing from their story?
Anne Milgram: So you’re always sort of thinking, “Okay, if this person is telling the truth, how would this actually look? What would the whole picture look like? Or if they were telling the truth, what’s missing here?” And with Cohen, at the time that Trump is elected, he’s 100% on the team still, and so he’s out there and he’s fighting for Trump every day. He’s cutting these deals. He’s sending letters. He’s taking checks from Stormy Daniels, and we should talk about the 2017 nature of the checks in a minute, but he’s really in there.
Anne Milgram: So what’s consistent with somebody who’s really in there is his power comes from Trump. You wanna be with Trump, and so he ultimately takes a job as his private lawyer, but it’s hard to imagine that he did not entertain in some way, in my view, being a part of that White House team. The center of power is moving to D.C. he’s been connected to that center of power. It’s hard for me to imagine that he didn’t at least seriously consider being a part of the inside team.
Preet Bharara: I think it’s hard for people to understand how this transition works for a person who has been a criminal or who has lied and becomes a reasonable and credible, cooperating witness. People have this view that human beings are static, and many people are. It seems, to use another example from the Mueller investigation, Paul Manafort is an incorrigible recidivist. He had a chance to save his skin, couldn’t do it. Didn’t turn around, and he’s going to jail perhaps for the rest of his life. Michael Cohen you might’ve thought could be the same kind of person, but transformations happen. Captains in organized crime families, I’ve seen it first hand, and as have you. They go from one day committing extortions, murders, racketeering, all sorts of things, and not always because not everyone can cooperate, something breaks and something changes.
Preet Bharara: Sometimes it changes, by the way, and I give this one more plug for the book, I have an entire chapter. The longest chapter in my book is called Snitches. It’s about cooperating witnesses and how difficult the moral quandaries are and the personal decision making is. And I give the example of sometimes people, they choose to flip and cooperate when they feel betrayed by their prior patron, whether it’s the head of the Gambino crime family or it’s Donald Trump. You can make the transition to somebody who is now prepared to tell the truth. You have to test it and you have to be skeptical of it, but it happens.
Anne Milgram: And I think that’s the case here. I mean I do think Cohen is largely credible, and I’m sort of pointing out the few spaces where I think he’s been less than forthright. Or maybe not even forthright, but he’s come less far in his evolution. But I did find him largely to be credible. What do you make, Preet, of the, there’s a lot of focus on the 2017 checks that are sent by the president to pay Michael Cohen for … Michael Cohen takes this home equity line to pay Stormy Daniels before the election. That deal is done but then the president has a series of checks that come out while he’s president. So they were very careful in making this record, and they spent a lot of time. Cohen did it in his up front statement. He went back to it. He talked about, and he was questioned about this, but whose names are on the checks.
Anne Milgram: So you and I have talked a little bit before about this question of if the president’s guilty of the campaign finance violation, which it certainly looks like the elements are there on its face, and again we don’t know the inside, but if the president’s guilty of that, we’ve talked a little bit about does that warrant impeachment when it precedes his time as president.
Preet Bharara: But it doesn’t.
Anne Milgram: Right. What impact does that have, the checks in 2017?
Preet Bharara: I mean I think it has a very significant impact because it both as a matter of congressional tradition and law, you’re talking about a president who knew what he was doing and was making repayment to his lawyer who had helped him win the election through this campaign finance fraud in The Oval Office, and there’s something deeply troubling about that. If and when there are hearings related to impeachment or further hearings on these issues narrowly outside of impeachment, that’s the kind of thing where majority members are gonna slam their fists on the desk and say, “These things happened in The Oval Office.”
Preet Bharara: There will be comaparisons back to what Bill Clinton did in The Oval Office, and you can have a different view about what’s more serious, but I think hush money payment repayments that have been lied about by the lawyer and by the president himself when he was a candidate, and I think thereafter, to reporters through a mechanism where you had this make believe home equity line for the purpose of shielding the payments, it all looks very tawdry and not … What’s the phrase that Trump uses? It’s not very cool and not very legal.
Anne Milgram: Is that what he uses?
Preet Bharara: Well he says very cool and very legal.
Anne Milgram: Okay.
Preet Bharara: So see, I turned that around.
Anne Milgram: Legalish. Right.
Preet Bharara: I put a no.
Anne Milgram: Gotcha.
Preet Bharara: Okay.
Anne Milgram: With you.
Preet Bharara: So what happens next? This is just the beginning.
Anne Milgram: This is just the beginning, no question about it. I mean Cohen may give more testimony. He’s headed obviously to federal prison, so I think there have already been a lot of conversations about subpoenas being issued coming out of this. There’s allegations that I think could be interesting, could be not interesting related to taxes and whether or not Cohen said very clearly he inflated his income when it was good for him, he deflated his income when it was in his favor. That’s not uncommon in business I think, and so we have to really be thoughtful. And I’m not arguing in favor of it in any way-
Preet Bharara: Are you defending Donald Trump?
Anne Milgram: No, I am not.
Preet Bharara: Wait a minute.
Anne Milgram: I am saying-
Preet Bharara: Wait a minute.
Anne Milgram: Here’s what I’m saying.
Preet Bharara: Are you saying you should be calm and rational and reasonable?
Anne Milgram: What I’m saying is that there’s an interesting question that I think warrants following up and looking at his taxes related to that came out of this, but it doesn’t in my mind say slam dunk he committed tax fraud. But again, I think there was enough there in what Cohen said to warrant a further inquiry into whether or not Trump accurately reported taxes.
Preet Bharara: So there’s gonna be a parade of witnesses through the Oversight Committee.
Anne Milgram: Yes.
Preet Bharara: Which is where Michael Cohen’s testimony took place. You can expect a whole bunch of people because they’re just getting started.
Anne Milgram: We forgot about Mr. Calamari too.
Preet Bharara: We did forget about Mr. Calamari.
Anne Milgram: Yeah. He’ll be there.
Preet Bharara: Usually that’s the appetizer. We’re way past the appetizer. That was the most terrible joke ever. We’re gonna have to edit that out.
Anne Milgram: I found it funny.
Preet Bharara: The control room is laughing.
Anne Milgram: I know, at us.
Preet Bharara: At us, yeah. Can I just point something out?
Anne Milgram: Yeah.
Preet Bharara: Because we had a question once from someone asking what is it like physically, and I think I was asked am I in a futon in my basement. No, we’re in a studio, but the weird thing about the studio is a little bit, and I hadn’t really thought about this until a second go, there’s a window, right? So you and I are in the studio together-
Anne Milgram: Mm-hmm (affirmative). Looking at each other.
Preet Bharara: Looking at each other, and there’s a window that has producers and sound people and our team, and it’s a little bit like in the movies-
Anne Milgram: And we hear them in our ears [crosstalk 00:21:06]
Preet Bharara: We hear them in our ears, but it’s a little bit like the movies where you have the sergeant standing outside and watching the interrogation, and every once in awhile you look over and you see expressions of disapproval.
Anne Milgram: Or laughter.
Preet Bharara: Or laughter, at us, not with us.
Anne Milgram: True.
Preet Bharara: It’s a little disconcerting, but I love you guys.
Anne Milgram: They’re nice people though. Yeah, they’re amazing.
Preet Bharara: All right. So what’s the deal with the book? Is there a book? Trump says there’s a book. The only book I know about-
Anne Milgram: I don’t think there’s a book yet.
Preet Bharara: Is called Doing Justice.
Anne Milgram: Right. Who’s it written by?
Preet Bharara: It’s written by-
Anne Milgram: Yours truly, you.
Preet Bharara: Yours truly.
Anne Milgram: Mm-hmm (affirmative).
Preet Bharara: Yeah.
Anne Milgram: The book is interesting because … So it’s very common when you cross examine a witness to try to show that there’s a financial benefit that will come to them through their testimony. So here, Michael Cohen, through his coming forward he’s admitted essentially to fraud. He’s paid back the IRS. I mean he’s not made money off this transaction in any way at this moment in time, or at least he’s disgorged the money that he’s made. So the argument was, “Well you’re gonna go out and make money, and you have a vested interest in beating up on Donald Trump. This is gonna be a payday for you.” So there was a lot of conversation about, “You have a book deal.” You know, I was pretty skeptical of it. I mean he may very well have a wink-wink nod-nod book deal, but he said under oath, “People have talked to me about a book. I haven’t agreed to write a book.”
Preet Bharara: I thought his testimony on that was very compelling. You know, everyone else has written a book. Omarosa’s written a book. Why shouldn’t he be able to write a book? But then the president’s been tweeting that there has been a book that he’s written that’s a love letter to Trump. But look, the fact that he may have written some manuscript in full or in part that said Donald Trump is amazing back before when he was his shill and his fixer and his personal lawyer and his thug-in-chief, that’ll be interesting at any future trial, and presumably that’ll be good impeachment material. But I don’t think it’s dispositive because that’s what his job was. The same way that he said lovely things about Trump before and he lied for Trump before, this I think can be swept away into that category of things.
Anne Milgram: Yeah, I agree. I agree. Particularly if it’s part of the timeframe when he’s 100% on the Trump team. I do think it’s better to know those things and not be cross examined on them, and so that’s an example where I think if you and I were Cohen’s lawyers we would’ve fronted that earlier, that there could be this information out there. It’s clear Trump knows about it and others in Trump’s world were aware of it, and that’s why they questioned him on it. But I agree with you that ultimately it’s gonna be consistent with where he was before Trump became president, when he was part of the team.
Preet Bharara: So while we’re on the issue of how members of Congress questioned Michael Cohen, I have been, like others, complimentary of the questioning by Alexandria Ocasio-Cortez, #AOC. And Twitter user gadfly1974 asks, “What made AOC’s questioning of Michael Cohen so effective?”
Anne Milgram: I think she did a few things, and this really goes to questioning witnesses overall. First of all, she just asked questions. She was sort of a normal person in the sense of, “Who else should we talk to?” Just asking really short, direct questions.
Preet Bharara: No speech.
Anne Milgram: No speech, and I bet if we went back, and I have not done this, but I bet if we went back and counted how many questions she got in for her five minutes versus other folks, we would find that she has as high or a higher number of questions than other folks. She just, she got to the point. She also did something which I think lawyers, even we struggle with. She didn’t ask that many compound questions, and when you look at the other questions asked by folks, they often asked two part questions.
Preet Bharara: Or seven parts.
Anne Milgram: Right, and it gets really complicated. “Which question should I answer? What’s the point of the question being asked?” So she was just … I think she was just very rigorous about asking specific questions and almost like she was sitting across from someone who she wanted to get information from, which is exactly how you’re supposed to do it. So, I think there were a couple of other folks who were pretty good at it too, or at least they were more to the point. Then there are a lot of examples of speeches and things where I couldn’t even find the question. It was like Where’s Waldo.
Preet Bharara: Look, the five minute increments, we’ve talked about, is difficult and hard to make use of. So you gotta figure out a way to do it. If you have 30 minutes, you still shouldn’t make a speech, but maybe you can afford to make a little bit of a speech, and sometimes people do that. In Supreme Court confirmation hearings in The Senate, in my experience, and I attended two of them personally, the rounds go 30 minutes. So you have time to get into an area of inquiry where you can ask about a line of case law and you can make a little bit of a speech. When you have five minutes, you gotta get to business. I don’t think she even used all the five minutes. One more thing you said earlier about how there was nothing new that came out, I think there was a lot of stuff in Michael Cohen’s own direct testimony from the statement that was a bombshell quality about the character of the president and his conduct. Then it was up to these members to draw out more information [crosstalk 00:25:55]
Anne Milgram: Exactly.
Preet Bharara: More drawn out, other than from AOC and some others.
Anne Milgram: One thing also that you and I probably talk about all the time when we’re with prosecutors who are about to try their first case or go into their first grand jury, is that it’s actually not about the question, it’s about the question and the answer together. Right? So if you really want information, you’re understanding that it’s not just you talking for two minutes and then the witness saying yes or no. As a rule when you’re doing direct examination and trying to get information, you’re trying to have a back and forth and a conversation where you keep getting more information. As a rule, the United States Congress is not great at that.
Preet Bharara: Did you ever yell, holler at a witness on cross examination?
Anne Milgram: I can’t think of a time that I did.
Preet Bharara: I didn’t.
Anne Milgram: Yeah. I cannot think of a single time that I did.
Preet Bharara: Yeah. So you know-
Anne Milgram: I don’t think it’s effective.
Preet Bharara: It’s not effective at all. It’s not effective, and they did a lot of it, which I guess is not about truth. It’s about showing some loyalty to the president I suppose. Maybe it’s an effort to rattle the witness, but once you see one colleague … Again, we’re just talking about effectiveness here, not a partisan analysis because I’ve seen Democrats do this too. Once you’ve seen one colleague yell at Michael Cohen and it doesn’t rattle the guy and actually causes him to look sympathetic a little bit, then you shouldn’t be the fifth person to yell at Michael Cohen. Whether it’s Michael Cohen or not, it doesn’t work. It doesn’t serve your purpose.
Anne Milgram: That’s a great point. Preet, did you ever print out giant signs that said, “Liar, liar,” and put it behind a witness you were cross examining?
Preet Bharara: Yeah. Liar, liar pants on fire. Yeah, I usually do that. No. I would write it in my palm, and when the judge wasn’t looking I would flash the palm. And the witness would get rattled and then I would win the case.
Anne Milgram: Did you know that Jim Jordan used to be a wrestler?
Preet Bharara: Is that why he doesn’t wear a jacket?
Anne Milgram: I don’t know why he doesn’t wear a jacket. Did you also know that he uses the word pleb? I rest my case.
Preet Bharara: I’m speechless. I don’t … By the way, we should just make clear for folks who sometimes don’t always appreciate that we’re-
Anne Milgram: Joking.
Preet Bharara: Making a reference to something that actually happened, there was a representative on the Republican side who held up such a sign, who had such a sign at the hearing. That’s our favorite dentist congressman Paul Gosar.
Anne Milgram: That’s right. Also not something I would do during cross examination, for the record.
Preet Bharara: Yeah. Although I have done it when I’ve gone to the dentist.
Anne Milgram: Liar, liar.
Preet Bharara: Because every once in awhile the dentist will say, “That wisdom tooth has to come out.” Then I pull out my sign. “Liar, liar, pants on fire.” That’s I think the proper use of that sign.
Anne Milgram: I am not a fan of the dentist so I am with you. Amen.
Preet Bharara: Will you be serious please?
Anne Milgram: Yes.
Preet Bharara: All right. Let’s talk about Jerry Nadler, who’s the Chair of the Judiciary Committee, for a minute before we get to the other big topic, which is Jared Kushner’s security clearance. Jerry Nadler is the Chair of the Judiciary Committee, which is distinct from the Oversight Committee, and he wants to get in on the action also. I don’t say that in a negative way. The Judiciary Committee is incredibly important, and it is the committee through which the impeachment proceedings, if they happen, will begin and be conducted. So he said somewhat dramatically on television on Sunday that his committee is issuing 60 requests for information and documents. That’s a large number.
Anne Milgram: It’s a large number, and he was pretty specific also in saying … This week he said, “Tomorrow we will be issuing document requests to over 60 different people and individuals from The White House to the Department of Justice. Donald Trump Jr., Allen Weisselberg,” who of course was the CFO of The Trump Organization who signed the checks that, or who was involved in the deal with Cohen and the president to pay off Stormy Daniels, “To begin the investigations to present the case to the American people about obstruction of justice, corruption, abuse of power.” So why is he not waiting for Mueller?
Preet Bharara: That’s a good question. It could be that he believes the reports that Mueller is almost done and the report is forthcoming. Remember very breathlessly a couple weeks ago people kept saying that was gonna happen. People are saying it again this week. So it takes awhile once you issue a document request to decide whether or not you have to issue a subpoena. It takes time for them to look at their documents, to turn them over. So maybe he wants to get the process started, and depending on where Mueller is at the time when he has an agreement for a witness to come forward, he may or may not proceed. We’ve seen that happen before with Michael Cohen also.
Preet Bharara: These things can get adjourned or they can be deals worked out with respect to the scope of the testimony so he doesn’t interfere, but I think he doesn’t wanna waste any time. He also said, by the way, on the ever present question of impeachment, he’s very careful with his language. He said, “Impeachment is a long way down the road. We don’t have the facts yet, but we’re going to initiate proper investigations.” I don’t know how long way down the road impeachment is, especially if the Mueller report comes out soon.
Anne Milgram: Right. I agree with that. I agree with that. Also, one of the things I thought was interesting about Cohen’s testimony and not surprising but sort of just unpack this for one second because I think this goes directly to the obstruction question, is the question of who reviewed Cohen’s testimony before he gave the false testimony before the Senate and House Intelligence Committees, the testimony that he’s now admitted to having lied at. He lied in writing and he said that that testimony was reviewed by the president’s lawyers. The president’s former personal lawyer, Jay Sekulow, came out and said, “No. I didn’t do it.” Other lawyers have not commented.
Preet Bharara: Aha.
Anne Milgram: Right.
Preet Bharara: What does that mean, Anne Milgram?
Anne Milgram: Right. I think that’s the question. Does it mean that the attorney for Jared Kushner and Ivanka Trump has not made a comment, does it mean that that’s the person who reviewed it? There could have been multiple people who reviewed it, but I do think it gets closer to this question of the president’s involvement and at a minimum supporting a lie or not correcting a lie. I mean it’s one thing if Michael Cohen says, “The president spoke in code. I went out. I was just playing for the team. This is what I thought the team wanted. I heard the president’s public statements.” It’s different when you say, “I submitted written testimony to the president’s lawyers and The White House lawyers and they actually, they made some changes to it.” But that testimony that was submitted was false, and it’s clear that everyone knew that that was false, or at least the president and the members of the Trump Organization who were involved in the Moscow Russia deal would’ve known that it was false. So that to me does raise some interesting questions.
Preet Bharara: Yeah. I should just make clear when I laughed before, just because a lawyer doesn’t say anything doesn’t mean that they’re implicated in having reviewed something or not reviewed something.
Anne Milgram: It just means the attention turns to them.
Preet Bharara: Yeah. Sometimes it’s best to keep your mouth shut, which is maybe what I would do if I were a lawyer in this situation because these lawyers have been talking too much. Look, and on the issue of whether or not the lawyers for Trump at Trump’s behest and on his behalf and to his advantage changed testimony and told lies, it’s unclear. Maybe it’s the case that the document that went from Michael Cohen to the president’s lawyers already contained all the lies and tweaks were made. It could also be-
Anne Milgram: It could also be that the lawyers didn’t know they were lies, which is also possible, right? I mean, again-
Preet Bharara: Yeah. Well the client doesn’t tell the lawyer something.
Anne Milgram: It is weird though that the lawyers are becoming witnesses in some ways, right? I mean it’s sort of … It’s an unusual place for a lawyer to find themselves on something like this.
Preet Bharara: Look, to jump ahead for a second to Jared Kushner and the fact that it now appears, if you believe the reporting, that Donald Trump directed John Kelly, who memorialized in a document this fact, directed John Kelly over the objection of career people-
Anne Milgram: Including The White House Counsel, Don McGahn.
Preet Bharara: Including his own hand picked White House Counsel, Don McGahn, to give Jared Kushner a security clearance. One interesting thing about that from the perspective of you and me who are lawyers is that Jared Kushner’s lawyer, Abbe Lowell, basically put out a statement throwing his client under the bus saying, “Yeah. I had no idea.” I think actually he said it exactly that way.
Anne Milgram: That was a stunning thing for me to see. I mean you just don’t generally see lawyers come out and say, “My client’s never told me that it went down a different way.”
Preet Bharara: This was what he said. He said to me, because remember, just to go back for a second, there’s been all this controversy about security clearances. As we have said here before and I’ve written before, Donald Trump were he an ordinary citizen, never in a million years could get a security clearance. It’s just different when you’re the President of the United States because he has to have this information. He does have the authority granted to give other people security clearances. It doesn’t mean it’s wise, doesn’t mean it’s smart. But-
Anne Milgram: Remember on Kushner too, one … You and I talked once about how the line individual, the person whose job it was to review the first level review of all of Kushner’s information said he shouldn’t even get a secret security clearance. Then it went to his supervisor who agreed. Then it’s very clear, so those two people were overruled. Then it’s very clear that it went to John Kelly, the Chief of Staff, and to The White House Counsel. I mean there are just so many layers of review here that Trump overrode to give his son-in-law access to secret and very sensitive US information.
Preet Bharara: I’m not a huge fan of doing this counterfactual, because Republicans do it, Democrats do it, and they say, “Well what if the tables were turned and circumstances are different?” But in this one, people say very compellingly, “Just imagine the outcry if Bill Clinton had, if his daughter was older, if Bill Clinton had given Chelsea Clinton’s husband a top security clearance over the objection of The White House Counsel, over the objection of National Security officials, and essentially over the objection of the Chief of Staff.” People would be screaming bloody murder even though the president has the authority to do it.
Anne Milgram: Right, and we should say this clearly. The president absolutely has the authority to give anyone a security clearance that he wants, but there is an issue here. We talk about this a lot. Even though you have the authority, there are lines that if you cross them you misuse that authority. And so I think here the argument is that the president misused his authority in a way that was negative to American national security interests by granting someone to whom he is personally related, which my personal view is that you should not have your family working for you in The White House-
Preet Bharara: Well yeah. That’s Nepotism [inaudible 00:36:05] I think Adam Schiff said there’s no Nepotism exception to national security clearances, even though he’s allowed. Look. I mean what if the president decided, “You know, I’m gonna give national security clearance to Maria Butina.”
Anne Milgram: Who is the woman who is the alleged Russian intelligence asset who’s now pleaded guilty.
Preet Bharara: Yeah, this idea, it makes my head spin on issue after issue when people say, “Well the president has the authority to do it. The president had the authority to fire the FBI director.” The president has the authority to decide that he’s not gonna hire anyone over an IQ of 90. He has the authority to do that, throughout the government. You can say, and in some cases probably that’s true. You can say, you can make all sorts of terrible decisions, but there’s a congressional check on power and discretion is important to keep in mind, and abuse of authority and abuse of power sometimes means exercising what your constitutional authority is in a way that’s detrimental to the national security interests and to democracy and to what we all care about. That can still be criticized and talked about, and we’re gonna see a lot of hearings.
Anne Milgram: And you can imagine the hearing where the CIA chief is brought in, the Director of National Intelligence is brought … I mean you can imagine the hearing if they comply with congressional subpoenas, where one by one Trump’s intelligence chiefs, the people who he appointed, come in and talk about why Jared Kushner was not someone who they would entrust with a national security clearance.
Preet Bharara: Look, this is not just a political squabble and debate. There are real reasons why the national security folks were concerned about Jared Kushner having a security clearance. Beyond the fact that he had to restate his financials I think a thousand times, I’m exaggerating, but you know, many many many times, and his entanglements and involvement with people from other countries. But in addition to that, the thing that’s most shocking to me, in The Washington Post article said, “Some foreign officials, whose communications were intercepted by the US Intelligence, privately discussed how they could manipulate Kushner, taking advantage of his complex business arrangements, financial difficulties he had at the time, and his lack of foreign policy experience.” So you have, if you believe this, you have interceptions of foreign folks saying, practically salivating over the idea of how they’ll be able to manipulate this person who people are saying is the defacto Chief of Staff to the President of the United States. That’s not a person who seems like they should have a top secret clearance.
Anne Milgram: And to that point, what’s sort of stunning about that reporting is that it’s not hypothetical. So it’s not a conversation about what could happen if somebody got a security clearance that they shouldn’t. Here there’s a concrete example picked up very early in Kushner’s tenure about, “We think we can roll this guy,” from foreign governments. That’s a really critical, critical thing. One of the questions a listener asked, Chris Baker, said, “Preet and Anne, as a Stay Tuned insider I was wondering if you could explain how congressional hearings work. Can committees compel anyone to testify? Jared, Ivanka, for example. And if so, how many times?” So are we gonna see Jared Kushner?
Preet Bharara: Yeah. I think we may. I think, look, there are a couple of considerations in hearings. One is what they have the authority to do. If you’re not in the majority, you can’t compel anyone to do anything because you can’t issue a subpoena, and not every committee has subpoena power. The ones we’re talking about do. Then there’s the political component of whether or not there will be public support if you run too fast, if you leap frog over other lesser witnesses. But they can. They can compel anyone to come. The question is what can they compel them to say, and can they actually make them appear without a long fight in court. And some of the things that people can assert, as we’ve seen and you’ll see a lot, we’ll be talking a lot about this.
Preet Bharara: Maybe we can have a whole episode on executive privilege, but people will assert privilege. People sometimes will assert their fifth amendment right against self-incrimination. Now when that happens, even though in a regular court of law you’re supposed to draw no inference from that, the public in a congressional hearing context will probably draw some inferences from that. In fact, Donald Trump himself said, it’s funny how he used to say things before the shoe was on the other foot, when people asserted the fifth he said, “That’s something only a criminal does.”
Anne Milgram: Right.
Preet Bharara: Basically went against-
Anne Milgram: The Constitution.
Preet Bharara: One of the prime protections in the Constitution that says exactly the opposite, that you can’t presume anything from that. He says that’s actually definitive proof of guilt, so we’ll see what happens when one of his relatives does the same.
Anne Milgram: We should just talk about the fact that when congressional hearings like this start to happen and subpoenas get issued, the president can say executive privilege, which then, as you just said, goes often into a very long court fight. We’ve seen every administration, Democrat and Republican, when these types of investigations are starting and subpoenas start to get issued, they staff up. They hire a lot more people in The White House Counsel’s Office, and they really prepare to fight and try to push back, and with some success. I mean I think this is one of the interesting questions is gonna be how much does The White House push back on these subpoenas, and part of that, to your point, will be how much the public wants the information and then what courts do in response to that. It could drag on for a very long period of time.
Preet Bharara: You’re talking about The White House staffing up. It’s been reported but gone largely under the radar that The White House under the new White House Counsel has hired, I forgot the number, but it’s a double digit number, of lawyers. While we like to make fun in the podcast and people do on television and on Saturday Night Live that people like Rudy Guiliani who were I think once feared and respected lawyers of a particular caliber, but you make fun of those folks because they say nonsensical untruthful things, I will tell you that many of the layers being hired by The White House are killer lawyers. A couple of whom I know personally, at least one of whom is an alum of the Southern District of New York. They are excellent lawyers. They know what they’re doing and they’ll probably not be heard from. You’re not gonna hear their names or see their names in the paper, but they are doing something that, as you described, is important to do. This happened in the Clinton administration.
Anne Milgram: In the Obama administration.
Preet Bharara: Obama administration.
Anne Milgram: This is common.
Preet Bharara: Once the investigations start gearing up they prepare for the defense, and there are some really, really high caliber lawyers who are smart enough not to go on television, who will be fighting the battles for the president.
Anne Milgram: Yeah, and it’s likely that there will be a lot of fights.
Preet Bharara: Okay, that’s all the time we have today for Insider. We’ll be back next Monday, so send us your questions to firstname.lastname@example.org.
Anne Milgram: And we’ll do our best to answer them.
Preet Bharara: See you next week, Anne.
Anne Milgram: Thanks, Preet.