Preet Bharara: From CAFE, welcome to CAFE Insider. I’m Preet Bharara.
Anne Milgram: And I’m Anne Milgram.
Preet Bharara: Hey Anne Milgram.
Anne Milgram: Hey, how you doing?
Preet Bharara: I’m good.
Anne Milgram: Yeah.
Preet Bharara: It’s been a long couple of weeks.
Anne Milgram: You’ve been on the book tour?
Preet Bharara: Promoting the book, which is continuing to do very well.
Anne Milgram: How’s it going?
Preet Bharara: It’s good. It’s on the bestseller list.
Anne Milgram: Number?
Preet Bharara: Well, week one it was number four.
Anne Milgram: Okay.
Preet Bharara: Week two it was number five.
Anne Milgram: Congratulations. That’s great.
Preet Bharara: At this rate of attrition, I will remain [crosstalk 00:00:28] one notch a week. I mean, that’s pretty good. But maybe we’ll have a ground swell of support and we’ll notch up. Not that that’s the most important thing.
Anne Milgram: Well, that’s pretty exciting. I’ve been watching on all the TV shows. You’ve been making the rounds.
Preet Bharara: I’ve been making the rounds talking about it and I’ve been a little light on Twitter lately.
Anne Milgram: I’m always a little light on Twitter.
Preet Bharara: You are.
Anne Milgram: Yeah, I need a Twitter intervention.
Preet Bharara: You should [crosstalk 00:00:55].
Anne Milgram: You’re going to have to teach me. We’ll do an Insider on how to tweet.
Preet Bharara: I’m talking about the news on these other platforms that I haven’t been on before and we have a lot to cover today. My favorite platform, the podcast platform. I guess we should talk about Donald Trump’s tax returns and whether the House Ways and Means Committee will be able to get them, whether they should get them. We have these reports from last week about members of the Mueller’s special council team reportedly unhappy about the Barr summary of the Mueller report. We have the question about whether or not the Mueller report will become fully public and in what form and whether Jerry Nadler is going down the right path with the subpoena. We have the issue of whether or not grand jury materials should be redacted from that report. Last night, the Department of Homeland Security secretary finally after taking beating after beating both from people who were upset about separations in the border and also from Donald Trump, she finally resigned. We’ll talk about that. So go.
Anne Milgram: Where to start?
Preet Bharara: Start with the, so the tax returns. Shouldn’t the tax returns of the President of United States as any other citizen remain secret?
Anne Milgram: Well, can we start by saying that I haven’t finished my taxes yet. And so all conversations about taxes make me a little [inaudible 00:02:08] just because they’re due-
Preet Bharara: [crosstalk 00:02:09]. Today is the eighth. So it’s next week.
Anne Milgram: Yeah. I got to get moving. Anyway-
Preet Bharara: Do you pay your full taxes?
Anne Milgram: I do pay my full taxes.
Preet Bharara: Have you always done that?
Anne Milgram: Yes.
Preet Bharara: Have you disclosed for purposes of the podcast the last number of years your taxes-
Anne Milgram: I’ve not been asked to disclose my taxes.
Preet Bharara: Well, I’m asking. Transparency is important. You’re a public figure.
Anne Milgram: I would say my taxes are pretty boring, but they’re not done yet. So okay, so you asked a good question which is, shouldn’t Americans be entitled to privacy on their taxes? And the short answer is that Americans are entitled to an incredible amount of privacy on their tax returns. But there’s a long standing tradition which I personally support and think should be the law, which is that the president of the United States and the vice president turnover their tax returns.
Preet Bharara: Since Nixon.
Anne Milgram: Since Nixon. Nixon in the middle of a scandal obviously about whether or not he was credible, he turns over his tax returns, which by the way, raised some issues because he hadn’t paid a lot of taxes on some things and it looked like he was taking advantage of some of the tax laws and obviously Nixon had other issues. But even Nixon turns them over and says the American public should get to see these. And so I think there’s a few points, which is one, president Trump should turn over his tax turns. This is a silly conversation in many ways because the public in my view, has a right to understand the president’s conflicts of interest and whether any exist. And so-
Preet Bharara: So there’s that norm, which I believe in and I think is important. And I think we’ll get to the issue of whether or not that should become a law given how Donald Trump has transgressed that norm.
Anne Milgram: Like so many other norms, he’s blown right through it. And it turns out you can do that. Yup.
Preet Bharara: But then the question here is, given that he’s blown off the norm and now the Democrats are in charge of the house, you have representative Neal, who’s the chairman of the House Ways and Means Committee. He is now relying upon a particular law which we should point out in a moment to say that he can demand under that statute to sort of obscure, I think from 1924, he can demand under that statute the tax returns of any individual in the country including the president of the United States. And the statute is, because we sometimes know that our listeners want to know the particulars and not just the gloss. It’s titled 26, US Code 6103(f), which is entitled disclosure to committees of Congress. And that statute says, fairly clearly then we can talk about whether there are exceptions or not and what the president’s response was.
Preet Bharara: But it says, it’s very clear on his face and you don’t need to be a lawyer to understand the plain meaning of certain statutes. And it says, upon written request from the chairman of the Committee on Ways and Means of the house of Representatives, and that’s chairman Neal. The secretary shall furnish such committee with any return or return information specified in such request except that any return return information, which can be associated with or otherwise identified directly or indirectly a particular taxpayer, shall be furnished to such committee only when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure. So there’s a provision for maintaining the confidentiality of the return, but the statute is very blanket and says, shall furnish.
Anne Milgram: Right. The Congress wants it, the congress gets it. And the purpose behind the statute is generally that Congress wants to understand how tax changes or tax laws impact certain people or groups of people. And so they have the ability to pull individual tax returns and say, how does this effect these 20000 people or this individual here? One of the things, and we should focus in a little bit on chairman Neal’s argument.
Preet Bharara: Yes.
Anne Milgram: He really, he pins the whole thing on the conversation that Trump has had since he was running for office, which is that he’s under audit. And this is a fascinating thing. So the president has said since he was asked during presidential debates, will you turn over your tax returns? And he’d said, I’d love to, during the debates, but I’m under audit so I can’t. Well, first of all, you can turn over tax returns when you’re under audit, it doesn’t stop you from turning them over.
Preet Bharara: In fact, there’s a president, maybe we remember him, Richard Nixon, who was under audit and my understanding is he released his tax returns.
Anne Milgram: Right. And so that’s the first point. The second point is that Trump has now said consistently for six years that he’s under audit, which seems really unlikely to me. We can talk about that in a minute for the reasons, and we can go through some of the reasons why, but audits tend to last a couple of years. They tend to focus on a few issues. They could even be a large number of issues, but they don’t tend to be, maybe there are examples that people know, but I have not seen in my private practice, I haven’t seen examples of the IRS doing tenure audits of people. And so, and remember that the statute of limitations for most crimes is five years. And so an IRS, there’s incentives for the IRS to basically move forward with audits. And a lot of times it’s not criminal, it’s meant to just correct tax problems. But these are important things that the IRS does. So that’s what Neal, congressman Neal says, he says-
Preet Bharara: But before he says that, before we get to the audit point, which I think is really important and I want us to spend a little bit of time on it. The statute we read is very clear and says, shall furnish.
Anne Milgram: Right.
Preet Bharara: And no reason is necessary per the statute.
Anne Milgram: Completely. Yes.
Preet Bharara: However, like anything else, statutes are limited by the constitution. And so if a member of Congress asked for some information that would incriminate the person, that would violate the fifth amendment. So the mere fact that Congress has some authority to ask for something, it doesn’t settle the question. So I think for that reason, chairman Neal decided to provide, even though the statute doesn’t ask for it, decided to provide some basis for why Congress needs the information and he says it is necessary for the committee to determine the scope of any such examination, meaning IRS examination as you said, and whether it includes a review of underlying business activities required to be reported on the individual income tax return. And then he also says, the committee, and this is kind of interesting and frankly a little bit thin. He says, the committee is considering legislative proposals and conducting oversight related to our federal tax laws, including but not limited to the extent to which the IRS audits and enforces the federal tax laws against the president.
Preet Bharara: So he’s resting this request. Well, fairly extraordinary information. The president normally in the past has provided, but in this case, says he’s not providing and saying, well, we need that because we’re looking at laws relating to how the IRS audits and enforces the tax laws against the president. And then the president’s lawyers point out-
Anne Milgram: Right, and the impression that he’s giving is that we want to help the president, right? Maybe this guy is being unfairly audited, year after year for six years. And the IRS shouldn’t be doing that. And so in our congressional oversight role, we’re going to look at whether the IRS is unfairly targeting the president of the United States.
Preet Bharara: Yeah. Now, so it’s unclear to me that you have to actually provide a basis. And so to my mind, there’s the legal question and then there’s the political optics question. And as I read that, and not everyone will agree with me, it sounds like a fairly weak basis and a narrow basis. And some might argue, I’m not saying this, but some might argue it sounds like a bit of a pretext because there’s this political issues swirling around the president and people want the tax returns to show things other than how the IRS is auditing the president. But maybe to provide information which I think [inaudible 00:09:37] things to look at, whether the president has entanglements, whether he’s lied about various business interests, where there are violations of the emoluments clause of the constitution, whether or not given the president making potentially false statements about tax returns and given the need for transparency that there might be some committee of Congress, maybe not this one, that has an interest in legislating the requirement, that tax returns be provided in the future.
Preet Bharara: In other words, there are like a half a dozen if not more legislative and oversight bases to ask for the tax returns which are not listed in the letter.
Anne Milgram: I agree with that and I agree very strongly. I think that Congress has a right to see the tax returns, and sort of the American people based on the conflict of interest question, which is not a small question and the president has stated that he has a massive business all over the world. He’s got billions of dollars in assets. And so these are really fair questions. One thing I would say your statement that it’s pre-textual, my thought when I read this-
Preet Bharara: I’m just saying, but to be clear before I get mail, I’m not saying it’s pre-textual, but there’s an argument [crosstalk 00:10:38].
Anne Milgram: Well, I’m going to get in more trouble then because what I thought when I was reading this was this is the equivalent of like the broken tail light. When the police officer makes us stop, there’s a broken tail light. It’s a completely lawful stop. Even if the officer then sees cocaine or a gun in the front seat of the car, the fact that it’s a pre-textual stop doesn’t-
Preet Bharara: But it’s lawful.
Anne Milgram: It’s lawful. And so it feels kind of weird because you’re using something to like get to the point where you can see what’s there, but it is lawful. The one thing I would also agree with you though is that I do think the law on its face allows congress to get this. What they were probably trying to figure out is, it does, like why are we targeting him? How do we explain if we litigate this, which we clearly will, we can talk about that in a minute, but the administration is clearly going to push back on this, what’s our best argument? And in some ways I almost would have preferred if they’d put a paragraph in saying we have a lot of interest in this. We have an interest in understanding the conflict of the president. We have an interest in understanding the audit. Instead of making it all about the audit, if they basically said, look, there’s 20 reasons why we want this and this is part of our legitimate oversight function and under the law we get it.
Preet Bharara: Yeah. There’s going to be this-
Anne Milgram: So I’m going to get the mail.
Preet Bharara: Send it to Anne Milgram. Well, there’s also the, there are two issues here. One, the substance, and then second, the procedure. And some people have been pointing out, I don’t know how far this goes because there’s a political aspect to this. The Congress asked the IRS for the material and then the IRS decides whether or not it will provide the material. But here you have then coming out from a third party who has an interest. Obviously the president has an interest because it’s his tax returns and he knows about it because it’s a public request. Often these requests presumably are made in secret. So the party who’s implicated with respect to their tax returns doesn’t know to make an objection.
Anne Milgram: When it’s criminal, when it’s civil audits, do not get disclosed without consent.
Preet Bharara: So you have a president whose lawyers have submitted a multi page letter to the IRS and people are asking, do they have standing, can they really interfere and get the IRS not to, my answer to that question is, well, I don’t know if they do, but people are allowed to put in letters and say, hey, here’s some reasons and maybe the IRS will find decent arguments in the letter or not. But this is not an ordinary citizen putting in an objection. This is somebody who is putting in a letter on behalf of the person who actually oversees the IRS. And Donald Trump probably thinks he can direct the IRS to do one thing or another. There’s also the question of whether or not there’s politicization at the IRS and whether the chief council is one of the people who would be involved in the decision making was installed hurriedly. Yeah.
Anne Milgram: Yeah. They pushed the chief counsel through quickly, there’s been public reporting that the administration tried to get the chief, the new chief counsel, the IRS who was reported to have represented the president prior to his becoming president on tax issues, that that individual, that the administration had wanted him to be confirmed before the Attorney General, Bill Barr, was confirmed, which is kind of a stunning fact if that’s true. Again, it’s publicly reported, we don’t know if it’s accurate. Barr was confirmed first. The council went in sort of late February. But it does raise some interesting questions because it was pretty clear I think, from the time that the Democrats took the house that there was going to be an effort to get the president’s tax returns. And so they’ve now installed a loyalist, someone who will push back.
Anne Milgram: And what concerns me a little bit about the politics of this, and you just alluded to it, but the IRS, it does come under the executive branch, which is the president is obviously the chief executive. There’s also the Department of Treasury. And what the president’s chief of staff, Mick Mulvaney said on the Sunday talk show is essentially, you’re never getting the president’s tax returns and the IRS is not turning them over. So that is political and there are legitimate reasons for which Congress has the right to ask for his tax returns and should get them. And that kind of blanket statement, it’s consistent with what we’ve seen a lot with the administration, which is just a refusal to engage on things they don’t like, even on things where lawfully, they’re required to do them.
Preet Bharara: Mick Mulvaney said another thing, and others have said the same, making a political argument, which I think is kind of empty and that as well, the president didn’t disclose his tax returns in 2016 during the election, nobody seemed to care because he got elected anyway. Now I don’t think that’s a great argument. There are lots of things that you might want from a particular candidate and may find other issues favor voting for that person, even though you would have preferred a disclosure, would have preferred some other policy. People don’t make all their decisions based, his election was not a referendum and a narrow-
Anne Milgram: [crosstalk 00:15:06] his taxes.
Preet Bharara: … simple issue of disclosing his taxes. But even if you take that argument on its face, I don’t know if people remember, Mick Mulvaney may not because he may be wish not to. There was another election in 2018 and if we’re going to take the position that the 2016 election meant that people didn’t care about the tax returns, well then the 2018 election was a repudiation of that because as you just said, it was very clear that Congress was going to engage in oversight, that there was a clamoring for these tax returns and overwhelmingly, the country decided to return the house to the Democrats. And so if your argument is that elections matter and elections determine the question of this narrow issue of the tax return, well then that argument is more in favor of the side of disclosing the tax returns.
Anne Milgram: There’s another issue with the political argument that I see, which is that Congress asking for them and legitimately having the authority to ask for them. And we should talk about some of the court cases in a minute, but legitimately asking for them to have the authority to get those tax returns. That doesn’t mean that the American public sees them, right?
Preet Bharara: Right, very important.
Anne Milgram: And so, if president Trump consented to the American public seeing them, they see them. It’s very clear president Trump is not going to ever consent to the American public seeing them despite what he said in my view, even when he is not under audit.
Preet Bharara: If we quick pause on that for a minute, because again, all of these things we should take a step back and just, on the issue of the Mueller report and the president testifying and the disclosure of the tax returns, it is not sufficient even though you and I are lawyers before we are other things. It is not enough to talk about people [crosstalk 00:16:32]-
Anne Milgram: [inaudible 00:16:32]. Are we lawyers before we’re people?
Preet Bharara: I assume [crosstalk 00:16:34] not an evidence. I don’t know. [inaudible 00:16:36] when people say lawyers are people assumes a fact not an evidence. The legal argument is not enough. Because when you’re talking about the president, you have these other considerations. So when you’re talking about indicting the president, you have this policy at DOJ. When you’re talking about not indicting the president and walking away, you have this other mechanism of accountability called impeachment. And here also, there’s just, there’s a political dimension to all of this. How bad must of the material and the tax returns be that the president of the United States refused to disclose them during the election when everyone going back to Nixon had, refuses to disclose them now, will be defiant of a request from the Congress pursuant to a statute that’s on its face makes it clear you have to disclose it. Hired new lawyers, by the way, for this purpose.
Anne Milgram: Right.
Preet Bharara: That creates, I think, a little bit of pressure to see what’s in the tax returns.
Anne Milgram: Right. So the way that I think about this is probably very similar to the way you think about this, which is a little bit as a criminal prosecutor for many years, which is there’s a reason why people won’t disclose things that otherwise everyone else does, right? I mean, it’s really swimming upstream on this one. It makes no sense. And it’s, he’s also created this incredible view amongst a lot of people in the public that there’s something terrible on his tax returns.
Preet Bharara: Right, because it may be, like you can imagine, if you were the president, which wouldn’t be a bad thing, and you decide-
Anne Milgram: Again, I’m announcing on CAFE Insider.
Preet Bharara: Well, you might as well because-
Anne Milgram: [crosstalk 00:18:04] it’s so true.
Preet Bharara: Everyone else is running.
Anne Milgram: Let’s get the number to a hundred.
Preet Bharara: No, but it may be this includes issues of executive privilege that on principle you would say, you know what, I just think it sets a bad precedent and we’ve gone too far and I’m not going to allow Congress to usurp my executive authority and on principle I’m not going to disclose my tax returns. And you make arguments like that, that doesn’t fly when it comes from president Trump. He doesn’t seem to do anything on principle. It’s all self preservation. It’s all self aggrandizement. And so when he says, I’m not going to do this, he doesn’t seem to be standing on some kind of executive authority principle. It’s about him, him, him and boy, you guys can’t see this stuff.
Anne Milgram: Yeah. And it could be a lot of things. It could be that he significantly underpays taxes or exploits loopholes in the tax code of which there are plenty that someone could exploit and so-
Preet Bharara: Or he doesn’t give to charity.
Anne Milgram: Which could be lawful, or he doesn’t give to charity like you said.
Preet Bharara: Which is not anything unlawful, you’re not required to give to charity. But there could be something-
Anne Milgram: But he said he is very generous. Right?
Preet Bharara: Look, there was a foundation laid in one of the committee hearings by, of all people, Alexandria Ocasio-Cortez, through a witness of some fame, Michael Cohen, take it for what it’s worth about whether or not Donald Trump inflated his assets or deflated his assets, depending on the purpose that suited him. That provides an inquiry for investigation. There will be this-
Anne Milgram: And he said, yes. He said, he inflates someone when it’s good for him, he deflates someone when it’s good for him. He does what he needs to do.
Preet Bharara: That lays down some predicate also. There will be this legal battle which we don’t have to resolve here and whether or not it’s appropriate for Congress to get information like a tax return or anything else based on its oversight function versus its legislative function. And that’s something maybe we can explore a greater length and greater depth later.
Anne Milgram: Right. Because they’ve said here it’s part of the legislative function as they make laws and as they determine whether or not the audits are fair.
Preet Bharara: Right. It’s not hard.
Anne Milgram: It’s actually both.
Preet Bharara: Yes, of course it’s both. It’s not hard to draw a link between an oversight function and a legislative function. Based on the oversight you conduct, if you think there’s been a certain kind of conduct that you would to deter in the future or prevent in the future, well then that oversight inquiry is related to a legislative purpose, which is, well then I’ll pass a law to disallow something. And nowhere that I see in the constitution or in court cases interpreting the constitution or even in the president’s letter, must that nexus be incredibly thick. Congress has the prerogative of passing laws on all sorts of things.
Anne Milgram: One of the things that that does trouble me about this is more general as well, which is that we’re seeing the administration do this a lot, which is basically burst their norms, resist normal forms of oversight, legitimate forms of oversight, essentially refuse to engage or use their executive authority to basically try to negate the power of Congress and force subpoenas, force litigation. And I have a deep problem with this. And so they’re, the president’s lawyers are out saying, this is political, Mick Mulvaney is saying it’s political. Look, there are times that Congress conducts oversight investigations and there can be multiple motives, right? It can be political as well as substantive. You can think back to the Benghazi investigations, which went on forever. And there was a lot of politics that was driving that. There was also a real question and-
Preet Bharara: Of what happened.
Anne Milgram: Of what happened, right? And how it happened and something happened that shouldn’t have happened and so congress stepped in to that. And whether or not that was politically motivated, there was a question that was legitimately within Congress’s [inaudible 00:21:30] to answer. And again, I’m not in any way endorsing the Benghazi investigation. The way I think it was done was deeply problematic, but congress has an incredible depth of authority as part of the checks and balances of the United States government that the president is just blowing right through and blowing past. And I’m afraid he’s, the sort of question still remains, is will he get away with it?
Preet Bharara: Yeah. But congressional committees as you point out, either in Benghazi or the house ways and means do have I think an obligation to justify their actions for political reasons and so that there’s authoritativeness to what they’re trying to do and they have credibility. There are a million things that Congress could ask for and it can be so blatantly political and still lawful to ask for those things, but it doesn’t inspire a lot of confidence. The last point I want to make about the tax returns, which is the thing that’s been eating at me since the beginning is not whether or not we should see all the tax returns. I think there are good reasons to see those things, but whether or not the president of United States when he was, as president and even before he was president has been lying about being under audit.
Anne Milgram: Right.
Preet Bharara: And I understand that there’s a privacy interest and people don’t need to have to disclose whether they are under audit or not. And some of the questions that representative Neal asks in his letter are, has the president been under audit? Have his business tax returns been under audit? For what period of time? I would like to know as a citizen, and I would like to know for purposes of implementing or passing future legislation to require the disclosure of tax returns. Whether this president has lied about that and it’s a simple binary question. The costs were, one answer or another. They were or they were not. The president lies about everything else. So I don’t know why we need to credit him on this. And on the question of whether or not there’s a privacy interest that’s interfered with, maybe that’s true for an ordinary person like you or me, but Donald Trump has said over and over and over again, the reason I’m not disclosing my tax returns, which I otherwise would do, the reason I’m not disclosing them is because they’re under audit.
Preet Bharara: I would like to know if that’s a lie because he’s been telling that lie or he’s been making that statement, we don’t know yet if it’s a lie, as a candidate and as president and I don’t see the privacy interest implicated because he seems to have a waived it. So at a minimum, I would like the committee to get an answer to that question.
Anne Milgram: I agree with you. The only other thing I’d add is that remember also that the president did not do what people usually do in terms of recusals when they become president of the United States. And so he still has, he put his company and trust run by his kids. He still has ties to his businesses in a way that again, he’s blown through the norms of what usually happens with recusal and basically separating your private interests from your public work as a president of the United States. And so to me, the questions of conflicts of interest are really alive here because he’s made them alive because of his refusal to step completely out of the business connections. And so it is all fair game because he’s made it fair game.
Preet Bharara: Again, I feel like today’s the episode in which we’re tying these issues to all sorts of other issues and that’s true of this as well. The president complains when people take a look at his finances or at his conduct or at obstruction when he is the one who has put those issues squarely at the forefront. He throws up smoke, he makes it look suspicious. He looks like he’s lying, he looks like he has entanglements, he doesn’t invest. And he said, well, how dare you ask questions? Well, you have engaged in conduct that causes people to ask questions and you and I experienced that obviously time and time again as prosecutors. At the end of the day, it may turn out that a full and thorough investigation doesn’t yield enough evidence to charge a crime of conspiracy or tax evasion or some other thing, but you’ve got to look, that’s how it works.
Anne Milgram: I agree.
Preet Bharara: All right, so moving on from taxes, even though the source subject for maybe a lot of listeners will have to fill out their tax returns in the coming week. The Mueller investigation, we have this Mueller report. We still don’t know what’s in it fully. We just have the four page summary and an extraordinary thing happened since last year when I sat down and talked and that is some reports in the New York Times and the Washington Post, also, I think by ABC News, so it’s multiple outlets reporting a similar thing and that is it. Some members of the Mueller team have told associates that they’re unhappy with the way that Bill Barr has described the Mueller report and in particular may have understated the degree to which there was obstruction. We haven’t seen that before.
Anne Milgram: No, but I mean, it is extraordinary in some ways. In other ways, didn’t you sort of hear it or read it and think? Yeah, it’s a 400 page plus report, Barr chose the most extreme standard of criminal justice. Basically making it as though he were the prosecutor, the judge and the jury, and making this decision about the president’s guilt or innocence. And so I sort of saw that and thought, well, there’s nothing surprising to me about the fact that Barr significantly, I’m trying to think what the right word to, I don’t want to say he falsified Mueller’s report, but-
Preet Bharara: He seems to have minimized it. [crosstalk 00:26:39].
Anne Milgram: He did not accurately describe it. Yes.
Preet Bharara: But I was talking about whether or not it’s a process-
Anne Milgram: The fact that they’re talking.
Preet Bharara: Yeah.
Anne Milgram: Well, there are a couple of things. One is that if you’d written a scathing report about the president’s conduct with obstruction of justice and you had absolute confidence in your boss, Robert Mueller, and then you watched Bill Barr do what he did with that four page summary, you could see people being very upset and frustrated and confiding in colleagues and saying, I can’t believe that it’s totally not true. The fact that someone actually then talked to the press is surprising.
Preet Bharara: Well, he didn’t talk to the press. The report says they talked to associates and the associates talked to the press-
Anne Milgram: Right, that’s surprising.
Preet Bharara: … which I credit. But it sounds like people were sort of [crosstalk 00:27:20]-
Anne Milgram: Talking.
Preet Bharara: … about it. But the other reason, it appears from the reports-
Anne Milgram: But it doesn’t name specific sources.
Preet Bharara: No, it doesn’t.
Anne Milgram: Right. So that’s just worth, it sort of like maybe scuttle, but again, I think it’s true because it’s sort of-
Preet Bharara: Yeah, it seems not unnatural that people would be miffed about that, but I’ll say something mildly controversial. One of the other things that it seems people are annoyed about is that if you believe the reports, the Mueller team itself, members of the Mueller team prepared summaries which-
Anne Milgram: Right. This is the part I think is most interesting. We talked about this.
Preet Bharara: Which presumably, well, when we talked we didn’t know that there was some evidence to suggest that.
Anne Milgram: What I had said is why did Mueller create summaries that could be released, I assumed he didn’t.
Preet Bharara: Well, it sounds like they did.
Anne Milgram: Right.
Preet Bharara: But then those were not released and presumably they were done with an eye towards making sure that there was nothing sensitive in them. And then there’s in this report, the Justice Department has pushed back and said on every page of the report, it said sensitive grand jury information and you and I both know-
Anne Milgram: That’s what you do in every report. Yeah.
Preet Bharara: Yeah, you just put on the slabs at the top. And it doesn’t mean that every page contains sensitive information whose disclosure will cause people to die.
Anne Milgram: Right. Lawyers do that all the time-
Preet Bharara: We just do it all the time.
Anne Milgram: … and are confidential on every letter they write.
Preet Bharara: And presumably if members of the team were creating summaries, they were probably cleansed of that kind of information. But I will say the report also says, and sometimes you have to read these things multiple times and look at the nitty gritty details. The report seems to suggest that the special counsel’s office did not ask that Bill Barr release those summaries. So in other words it looks like, and maybe I’m reading it wrong and people can write in, that there were members of the team who created such summaries and maybe they were endorsed by Bob Mueller, but at the end of the day there was no insistence. And look, I’m not sure what power of assistance they had, didn’t say, publish our summaries.
Anne Milgram: Yeah, well I wouldn’t be surprised. I mean, look, I think Mueller, and I think that this falls in the sort of side of to his credit, even though I think his lunch has been eaten a little bit here so far, but I think history will tell.
Preet Bharara: What do you mean his lunch has been eaten?
Anne Milgram: Well, he acted honorably and he made a decision, which is that I’m writing this report to Congress and I suspect once we read the report, if we ever do, that he will have articulated his reasons for doing what he did.
Preet Bharara: But do you think, [inaudible 00:29:39] pause again, I’m sorry. Because I don’t know the answer to this question. I don’t know the answer to this question. So I want to know what to ambulate from things. I agree with you that his intent was for Congress to decide the issue, but what language did he use in the report that made that intent clear? I don’t know that he did use such clear language because if he’d used such clear language it seems to me it would have been incumbent on Bill Barr to recite that language.
Anne Milgram: So this is a question in my mind too because I think, if I go back and think about all the reports I wrote at the Department of Justice, we’ve talked about this, what’s the question asked? What’s the legal standard? What are the facts? And then the analysis of why are we doing what we’re doing here. It feels very strange to me for Mueller to have done that without specifically addressing this question of I’m not making a decision. And the reason why he would make a decision in my mind, and I don’t know if this is in the report, we haven’t seen any of it. We have no information, but is that, there’s office of legal counsel opinion saying the president can’t be indicted. The options for Mueller are to make a decision which would have made him judge and jury. Right? Which I don’t think is right. I don’t think what Barr did is right or to basically send it to the adjudicatory body, which is the United States Congress, who we sort of think like that’s, the southern district could take other things, but on these issues, these would probably go to Congress most likely. And so I don’t know if he said that or didn’t say it.
Preet Bharara: Here’s what I will say, even though obviously I’m a big supporter of Bob Mueller and accept his findings, and I’ve said that throughout, whatever the findings were like you do with a jury, you accept the findings and conclusions. And in case of a jury, accept their verdict, even if you disagree in some part or in full and you move on. But I will be mildly critical if the intent of Bob Mueller, if the clear intent of Bob Mueller and his team was to send the question to Congress and he failed and they failed to be explicit about that in the report, which would have meant that they did not anticipate the sort of intervention of Bill Barr to put this nice gloss and exonerate the president.
Anne Milgram: I don’t think they anticipated the, well, I don’t know, but I can’t imagine they expected Barr to do what he did. I think Mueller was trying to do the honorable thing and was probably counting on Barr to do the same and Barr did not. But if you’re asking the following question, which is what do I think is more likely that Mueller put it in and Barr ignored it or that Mueller didn’t put it in? I vote Mueller put it in and Barr ignored it.
Preet Bharara: Well, that’ll be interesting. Well, then I’ll be very critical of Bill Barr.
Anne Milgram: But it just, if you and I had to take a bet right now on who’s acted honorably and who hasn’t, there’s no way Barr’s letter, the letter, that four page letter should have been written the way it was written for a variety of reasons.
Preet Bharara: I just think that Bill Barr, I’m not-
Anne Milgram: He stepped in to a void.
Preet Bharara: I’m not making a statement about his honor, honorableness, honorability-
Anne Milgram: Honorability.
Preet Bharara: Honorificness. Something.
Anne Milgram: He is an honorable by title. He’s the attorney general.
Preet Bharara: I am making a comment on his shrewdness and good lawyers know-
Anne Milgram: Now you’re asking me a different question.
Preet Bharara: Yeah, good lawyers, this is why I have the prediction that I have. Good lawyers make it a point to front the bad stuff because if some weeks later it turns out that you misrepresented, you’re going to be in trouble. Which is why Bill Barr to the credit of his shrewdness and intelligence, put into the letter the point about the president is not exonerated on the issue of obstruction. That’s very damaging to the president. He could have ignored that. It was in the report, he felt he couldn’t ignore it because later if it came out he would look terrible. I feel the same is true on this.
Anne Milgram: But then he responded.
Preet Bharara: If Bob Mueller had made it explicit in the report that I want Congress to decide this question, I would have expected the shrewd, clever, smart Bill Barr to have recited that and said, I understand that the special counsel says X. I believe that it’s upon me because I’m the chief federal law enforcement officer in the country and for whatever other reasons, I think based on the law and the fact there was no obstruction here and then Congress is going to do what it’s going to do anyway.
Anne Milgram: What do you think, I mean there’s a possibility Mueller’s, his mandate and he’s, and my view is Mueller will follow the rules as applied to him. Mueller’s mandate was to deliver a report to the attorney general. So what if he, that was his, that was what he had to do.
Preet Bharara: And that’s it.
Anne Milgram: And what if he said in the report, look, these are issues properly for other bodies, potentially for Congress to decide, but like he doesn’t say I’m giving it to Congress because that’s not really his job. Right? Under the specific mandate it, and this is why I think we actually need a special counsel or other type of law. I’m not saying we should go back to the one we had previously, but I have a problem with the way, let me say one thing, big picture too that I keep struggling with, which is that in all of this we keep hearing from Bill Barr, we keep hearing from administration officials and really the only person I want to hear from is Robert Mueller.
Preet Bharara: Yes, let’s get the report out.
Anne Milgram: Yeah. And the way that the system is set up though, Mueller had to go through Barr, congress is now going to be forced to potentially issue a subpoena if Barr does not release the report. And by the way, one thing I would say on the question of shrewdness is, Barr didn’t go to the grand jury to ask for a waiver of 6(e), and the court may have said no, but he could have asked a court, and basically said he could still be, today he should be going to a court and saying, look, I want to turn this over to Congress. There are grand jury privacy protections, but I’d like to turn it over to Congress, which there is a 1974 case that seems to support very strongly that the grand jury testimony can go over to Congress. And so, he’s playing a game here a little, he hasn’t even tried.
Preet Bharara: So that gets us to the next sort of issue that you just pushed us towards. And that is what are we going to see at the Mueller report? You have Jerrold Nadler, the chairman of the Judiciary Committee who was had a vote on a subpoena, although I don’t believe as of this conversation on Monday morning, April 8th the subpoena has been issued. He has it in his back pocket. He can issue it. There are all these issues about classified information, derogatory information, information about ongoing investigations. And then also as you’ve just suggested, grand jury information and there is a roiling debate on whether or not that can be in the report or not be in the report. But I think it is clear as you just said, maybe we can talk more about it and what the case law says, that for various purposes a judge can decide that grand jury information can become available.
Preet Bharara: Now there’s the precedent of what happened in Watergate and some people are saying, well that’s sort of different, which I respect and understand because that was a grand jury report that the grand jury itself asked to be released and became basically the model or the roadmap for Congress to take a look at the transgressions of President Richard Nixon at the time. And this is not that, there’s no grand jury report. There’s a Mueller report which is subject to its own confidentiality, provisions and requirements. So here if people really want transparency, if you were the special counsel, you would want presumably the attorney general to seek whatever relief you can get from a court if you really believed in transparency. And by the way, if you also believed that it’s totally exonerating the president, this is the other sort of disconnect. It’s great, it’s great, it’s great. I’m cleared, I’m cleared, I’m cleared, but you can’t see it. You can’t see it. And I’ll say, another thing I’ve said before, there are legitimate lawful reasons and principled reasons why you might say some things should be cut out of the report.
Anne Milgram: Oh, completely.
Preet Bharara: I get that, on principle, and yet again, who believes that Bill Barr and the administration and Donald Trump are proceeding on principle rather than pretext? It seems to, again and again and again, they will use some good faith legal provision to say you can’t see things. And if I had any trust that they weren’t trying to spin things, I had any trust they weren’t trying to pull the wool over people’s eyes, I had any trust that they actually respected the process of the law or the courts, that might be fine. I have no evidence of that. So when you have someone like Bill Barr who again, was a good lawyer and I have known to be an honorable person, when you have him reaching for any possible way to keep things from the American public, I view that as pretext not principal.
Anne Milgram: Yeah, I agree. And if we were playing Bingo with pretext is one of the words.
Preet Bharara: We should do that. We should definitely do that.
Anne Milgram: Everyone would want, it would been be a big day. One thing I’d say about Barr is that I am really skeptical of his actions and I think he’s harming the institution of the Department of Justice. I would also say this, it is completely possible that he believes that the president has extraordinary authorities and that this is a deeply held belief of his, that the president can do virtually anything and he sees very few constraints on the president’s authority. And so that could be the reason why he’s engaged in what I would argue is pretty obstructionist conduct and things that I find troubling and honestly just beneath the dignity of the Department of Justice, which for a long time, regardless of who the president is, and you and I have both seen this, that people who are appointed by the president while they are off and loyal to the president in many ways, do the right thing.
Anne Milgram: And so I do find this troubling, but I want to just note that I’m not sure whether I think Barr has the wrong view of executive authority or whether he’s just become deeply political, but there’s something that’s happening that’s not right. Let’s talk for one minute about the case that came down last week. The McKeever versus Barr.
Preet Bharara: So that case is not directly related to the Mueller investigation.
Anne Milgram: It’s not directly related to the Mueller investigation, but it does go to the scope of waiving 6(e), courts abilities to waive 6(e)-
Preet Bharara: By 6(e) you’re talking about the rule that relates to a grand jury secrecy.
Anne Milgram: Yes. So the rule related to the secrecy of grand jury materials and the question in that case, McKeever versus Barr, which was decided on April 5th, 2019, essentially was, is there the sort of public interest exception that courts can read into the statute under rule 6(e) that would allow courts to order disclosure of grand jury material?
Preet Bharara: Right. And that was a case about an art historian who was seeking grand jury material that was somewhat ancient.
Anne Milgram: Yeah. And there were no privacy concerns. I mean, I think it’s a fair argument to say that the privacy concerns were no longer in effect. So we have an email from [Grant 00:39:40] who says, Hi Preet and Anne, can you comment on if and how the recent ruling by the DC Circuit in McKeever versus Barr could affect any redactions and disclosure of information from the Mueller report? Thanks a bunch. Love the podcast. Okay. So we’re both looking at each other. So-
Preet Bharara: Anne.
Anne Milgram: I think it’s worth noting there are a couple pieces, one that even in footnote three of that court decision, and now I’m going off footnote on you. It talks about that-
Preet Bharara: This is amazing, we should be a class. I feel like I should be getting continuing legal education credit.
Anne Milgram: You get five credits for today, everyone listening. It talked about how there’s always been this sort of exception under 6(e) for judicial proceedings. And there is the precedent under the 1974 case how the men versus Sirica allowing information to be passed to Congress. And you’re right that it was a grand jury report and not grand jury testimony, but there’s a pretty sufficient predicate for the information going to Congress. So my takeaway is that McKeever versus Barr, and by the way Barr and the Department of Justice argued very strongly that there should be no public interest exception to remove grand jury privacy 6(e) materials should always be private. And so Barr has been really consistent in saying the public never gets to see grand jury material, but there’s two points worth making. One is it does look like the DC Circuit at least, and that’s where Mueller’s report is coming out through the Department of Justice is going to restrict disclosures for public interest but that that should not harm any disclosure to Congress in my view.
Anne Milgram: And by the way, I also agree more with the dissent in McKeever versus Barr, that this was an instance where there was a legitimate public interest. There was no privacy concern and that the court should have granted disclosure.
Preet Bharara: I agree with that analysis, but again, I feel that even though there are ways not withstanding this decision, if you had an interest in transparency and disclosure to get more rather than less information out, you could find a way to do it. My worry is that people who want to be protective of the president and don’t want people to see negative information about the president and want everyone to just move on, say there’s nothing to see here, will use again this decision as they use other laws over broadly to shield the president against things. And as you pointed out in footnote three, which we happen to have right here, there’s a reference directly to the view, the grand jury matters may lawfully be made available to the House of Representatives as ‘a body’ that in this setting acts simply as another grand jury. Which implicates the question of whether or not there has to be an impeachment proceeding-
Anne Milgram: Right. I think that does make [crosstalk 00:42:17]-
Preet Bharara: … already underway before you can get this material. And arguably, there’s not an impeachment proceeding underway and Nancy Pelosi has said, we don’t want to proceed to impeachment necessarily. There’s some other language that suggests that you could get this information preliminary to a proceeding. So these are sort of fine points of law that will be argued about.
Anne Milgram: But it’s a really important point because I think what, there’re sort of two ways this can go. One is that ultimately Barr does block disclosure of significant portions of the report. In that case, I imagine congress would need to see the full report or basically would see the full report and use that as a roadmap for them calling in witnesses who could then testify publicly, who could then provide public information so the public would understand what Mueller discovered and did not discover. It becomes a real question of does there need to be a pending impeachment proceeding? And by the way, impeachment, I think Pelosi, I understand why she stepped out in the way she did. I also think impeachment is the ultimate thing. It’s like a grand jury indictment. The impeachment proceeding is like a grand jury where you’re trying to uncover evidence and I think Pelosi may be, she painted with a pretty broad brush and saying no impeachment. Whereas, I see a legitimate question.
Anne Milgram: If Barr doesn’t release the report or doesn’t release enough of the report so that if there’s 150 pages blacked out on obstruction of justice, I would see a legitimate reason for the house to open the equivalent of a grand jury investigation.
Preet Bharara: Well, that’s an amazing thing you’re saying, right? That separate and apart from political considerations that based on a certain understanding of the law, that the house may be backed into commencement of impeachment proceedings for procedural reasons, which would be an odd way of impeachment proceedings beginning, right?
Anne Milgram: Do you feel a little like we’re watching this, it’s like a chess match where the president and Barr are playing a very tough game of chess and we’ll see when the report comes out if there’s sufficient information in the report, the conversation probably ends or get to change significantly. But if there isn’t, then I think we end up seeing this play out in really unusual ways.
Preet Bharara: The big problem is not a legal one. It is the lack of faith in both directions. The lack of confidence-
Anne Milgram: Agreed.
Preet Bharara: … and respect in both directions. So in the one direction, I don’t have confidence, a lot of people don’t have confidence that Bill Barr and others are being, are interested in transparency and they’re citing to these other legitimate rules and they’re interpreting them in a way that’s beneficial to the president as opposed to the way that maybe the law requires. And in the other direction, as we saw with the House Ways and Means Committee request for information about taxes, the president’s team with some basis doesn’t know, trust and respect the motivations behind those requests. And so when you have an impasse like that on issue, after issue, after issue of lack of trust in either direction, it’s got to be solved in some neutral forum like a court-
Anne Milgram: Like a court.
Preet Bharara: … which is going to take a long time. Last thing I guess we should talk about, because we’re running out of time here is the secretary of Homeland Security. Kirstjen Nielsen-
Anne Milgram: Is out.
Preet Bharara: … is out. Are you surprised that it took this long for her to be out?
Anne Milgram: Yes, but you know what I’m also surprised by? There was reporting, and we don’t know the inside and I should say that I’m going to speculate based on what I read this morning, but there’s reporting that the president did not view her as tough enough and was angry that there were-
Preet Bharara: Do you remember these protests? There were protests and probably the issue on which I saw people get more upset than anything else and probably one of the only issues that I can think of, I’m sure I’m forgetting one or two, where public outcry caused a change in policy was the separations at the boarder.
Anne Milgram: Yes. Which I am personally outraged by and I-
Preet Bharara: I continue to be.
Anne Milgram: yes, and to continue to see the harm that has been caused to families.
Preet Bharara: And she is the person-
Anne Milgram: Responsible.
Preet Bharara: … who, responsible, who defended it, who lied about it in a couple of regards. She’s not tough enough.
Anne Milgram: Right. So what do we get next? And you know what, the president has now put in an acting person who by all accounts is more of a sort of bureaucrat, longterm law enforcement official.
Preet Bharara: He’s not going to last long.
Anne Milgram: The head of customs and border patrol, so he’s the one in charge of the border day to day. But the idea that she’s not tough enough, I mean it really, it concerns me so deeply that you can have someone who is separating parents and children, babies from their families-
Preet Bharara: And not be able to track them and reunite them.
Anne Milgram: … for no reason, right? Other than, right, exactly. Other than attempting to claim asylum and enter the United States. For that reason, what does tougher look like? And I’m so troubled by that and I think Congress, I was going to say Congress needs to really, the Senate needs to really vet who gets nominated to be the head of that agency.
Preet Bharara: Well, these days, the president seems not to like nominating anybody for anything. He loves acting positions. And I think one thing that we can talk about in subsequent weeks is within that the law needs to be changed about how long the president can have someone in an acting position and whether or not the acting person after a certain period of time should have all the authorities and all the powers and all the legal abilities to do the things that the Senate confirmed person can have. We have a system-
Anne Milgram: Right. And we’re not using the system.
Preet Bharara: It’s a system of checks and balances. The president has allowed his own team in the White House. And even there, by the way, he has an acting chief of staff, which is bizarre because that does not require, it’s not a confirmation. But there’s a reason why the US attorney has to be confirmed. They attorney general has to be confirmed. The secretary of defense, by the way, we don’t have a secretary of defense, that’s someone in an acting capacity. So that the president doesn’t get his own whim and force-
Anne Milgram: Right. And I think that this is why he is doing it.
Preet Bharara: … Congress, the Senate in particular has to weigh in. It has to give advice and consent. And he’s bypassing that in an extraordinary way.
Anne Milgram: There’s something more having been an acting AG before I was an AG, and we should just note there’s an acting, now an acting DHS, homeland security secretary, there’s an acting defense secretary, there’s been a nomination, but there’s still an acting interior secretary, the acting White House chief of staff, an acting UN ambassador, even though that’s not cabinet level anymore. But it’s extraordinary, having been an acting, it’s a very tough job to be in, you’re completely at the whim of the executive and you don’t hold the job. You haven’t been Senate confirmed. There’s no [crosstalk 00:48:33]-
Preet Bharara: You can’t make long term-
Anne Milgram: Exactly.
Preet Bharara: When you were the acting AG, presumably, you weren’t coming up with the two plan or a two year-
Anne Milgram: You’re a caretaker and you’re also very subjected to the whims of the executive telling you do this, do that. So Trump in my view, holds more power right now. And he also sort of holding over people’s head, well, maybe you’ll be the appointed person, maybe you won’t, but I want you to do this right now. I mean it’s a very problematic situation for government to be run this way for so many different reasons.
Preet Bharara: Yeah. Well he said, sometimes the most terrible things about the president’s view of democracy and the press and institutions, he says out loud, because I like having acting. I have more flexibility when there’s acting. And in some ways I’m a little bit surprised that he, I think it’s a good thing not withstanding the qualms that you and I both have about Bill Barr, head and shoulders better than Matt Whitaker.
Anne Milgram: Right. I agree.
Preet Bharara: And I think it was [crosstalk 00:49:23], I might be wrong about this but no, I think at one point the president made some comment about Matt Whitaker and how he was happy with him. So when the president himself has a certain view about institutions or the president himself has a view of his own powers against that backdrop for him to say that I like the flexibility of having an acting and for him to then have many, many actings is a cause for alarm. There’s a lot of things that are cause for alarm. This is a little bit of an under the radar thing than separations at the border. But it’s the kind of power play that can give rise to and create an environment in which terrible things like that can happen.
Anne Milgram: Well, and he’s consolidated power, no question about it, by having the acting. Also, I think it’s important to remember how much process matters. And this is a great example where he’s sorting longstanding processes. Can we end on a happy note?
Preet Bharara: Yes. Please. Yeah.
Anne Milgram: It’s spring.
Preet Bharara: It is. Wait, is it the, when is the first end?
Anne Milgram: It’s already, it’s past, but it feels like spring. That’s the best I’ve got.
Preet Bharara: Why don’t we know the onset of spring in real time?
Anne Milgram: That was like March something.
Preet Bharara: All right. That’s all the time we have today for Insider. We’ll be back next Monday, right Anne?
Anne Milgram: Yes.
Preet Bharara: So send us your questions to email@example.com.
Anne Milgram: And we’ll do our best to answer them. Have a great week.