Preet Bharara: … From CAFE. Welcome to CAFE Insider. I’m Preet Bharara
Anne Milgram: I’m Anne Milgram.
Preet Bharara: How are you Ann?
Anne Milgram: How you doing?
Preet Bharara: Happy Passover. Happy Easter.
Anne Milgram: You too.
Preet Bharara: Did you have a good weekend?
Anne Milgram: Yeah, we had a great weekend.
Preet Bharara: How many more times did you read the Mueller Report?
Anne Milgram: I went through it all again.
Preet Bharara: Have you memorized it?
Anne Milgram: I have not, have you?
Preet Bharara: [inaudible 00:00:18] memory.
Anne Milgram: But I was a little jealous that you had that … I saw it on Twitter you had that nicely bound copy of it and I have 458 pages flying everywhere.
Preet Bharara: On Thursday when it came out, did you have a hard copy then?
Anne Milgram: I had printed it.
Preet Bharara: I see, because I would just read it on the laptop, and it’s very frustrating [crosstalk 00:00:35] I don’t know how to take notes. I don’t know how to tag things.
Anne Milgram: You take notes?
Preet Bharara: As a lawyer, as a real lawyer, damn straight I take notes. Do you … I see lots of notes in front of you.
Anne Milgram: I take a lot of notes still, yup.
Preet Bharara: One thing we should mention is this sad, terrible tragedy in Sri Lanka.
Anne Milgram: Yes.
Preet Bharara: Where I think the death toll keeps changing. I think it’s up to 290 people dead, hundreds injured. That obviously is an awful thing that hopefully we’ll get some more information on and people will be following and efforts to eradicate terrorism continue.
Anne Milgram: Our thoughts and prayers go out to everyone there.
Preet Bharara: Getting back to the Mueller Report, I’ve had a chance to think a little bit longer, after the passage of a few days, some things maybe seem more clear. Somethings frankly seem less clear to me. We can talk about in a little bit more detail with the benefit of some removed from the release, why Mueller didn’t make a decision on obstruction. We can also talk about what’s going to happen next, hearings that the Judiciary Committee and other committees may have. Redactions, what the significance of those are. I had an interesting appearance following, let’s see, the 26 minute rating by Rudy Giuliani on State of the Union on CNN yesterday, we’ll talking about that.
Anne Milgram: You were on after him, right?
Preet Bharara: I was on after him, very difficult act to follow, not in a good way.
Anne Milgram: Did you rant or run?
Preet Bharara: I tried not to rant. I tried to speak thoughtfully and in a measured fashion, like I do on this podcast.
Anne Milgram: That is [inaudible 00:02:00], it’s the right thing to do.
Preet Bharara: I think we should spend some time talking about the method of argumentation used by Trump and a lot of his supporters, and then whether or not impeachment is something that’s on the table, whether it should be on the table, how we think that’ll unfold. First, let’s go back to the main thing that everyone keeps talking about. I think my view is similar to what it was upon first reading, but this idea that Bob Mueller chose not to make a decision or state a conclusion on the criminality with respect to obstruction. How does that sit with you now three or four days later?
Anne Milgram: I’ve been thinking about it a lot too and in part because I had the chance to read the report more thoroughly. When you go through volume one he does make a call, a very clear call on the question of conspiracy and we can talk about that conspiracy in coordination with the Russians. He makes two calls there, one saying 100% the Russians did this and he also finds that neither the president nor members of the campaign engaged in the conspiracy, but then in the second part you get to this fascinating and I’ve re-read five times the two pages that outline his decision-
Preet Bharara: Let me pause here to say, people are really, really busy and it’s very difficult to find time to read the report and it’s very long, although we urge you to do it, but if you’re going to read one thing, you should read what Anne is about to talk about, that two page two or three page introduction to volume two.
Anne Milgram: Yeah, I actually think you could read the whole executive summary of volume two, which is about seven or eight pages, and that is worth the time it takes to get through, but there’s two pages where Mueller says, “I was appointed by the Attorney General, here’s the letter, here’s the terms of my appointment of what I’m supposed to do.” There’s an OLC opinion that prevents the indictment of a sitting president and there’s a question of fundamental fairness that really drives Mueller to make a decision that he should not be making a final call.
Anne Milgram: What is strange about it, is you and I have written probably a million prosecution memos, and so the normal way a prosecution memo would go is you lay out why you’re going to prosecute someone, what the evidence is for, what the evidence is against, and you make a conclusion. Then there’s these reports that are written. Think about Iran–Contra, there are different congressional reports that get written where they do tend to marshal facts and make conclusions. This is none of those. This is the very strange in between where he does all the facts and analysis that you would have in a prosecution memo, but then he just doesn’t make the final call.
Preet Bharara: There’s a lot of things I thought about it, as I’ve thought about it further, as we keep saying, we have to infer things from the report, and one thing that’s worth looking at by way of the contrast, which is a very obvious point, that I think we should just dwell on it a little bit. He does make the call on conspiracy. He doesn’t make the call on obstruction. Is it arguable to infer that the fact that he doesn’t make the call on obstruction means that he really thinks that there was obstruction because if he thought there was not-
Anne Milgram: I think so, yes.
Preet Bharara: Right, but that gets complicated also because if you believe Bill Barr, maybe there’s reasons not to, he and his press conference and I have gone back and listened to him for three or four or five more times on this particular question, when he was asked in advance of the release of the report, which as we stated already, I thought it was not a cool way to go about it. He was asked, “Could you explain the special counsel’s reasoning for not making a call on obstruction?” Bill Barr says among other things, “Well, I don’t want to characterize it. I let his words speak for themselves.” Then he says, “But I had a conversation with him into, is your conclusion on obstruction or your lack of a conclusion on obstruction, the result of the fact that the policy is … The interpretation is that a sitting president can’t be indicted?”
Preet Bharara: Bill Barr claims that Mueller said “No.” That he was not saying, and this is very important to the president, very important to Bill Barr and very important I think to our understanding, according to Bill Barr, Bob Mueller was not saying that but for the Office of Legal Counsel Opinion, they would be stating a crime of obstruction. I had … It’s a little bit hard to square those things, right? If you believe to be true then how are we inferring that he did believe there was obstruction or is it just Bob Mueller even in conversation with the attorney general avoiding at all costs stating that the president had committed a crime?
Anne Milgram: I think they could’ve done it better and maybe they wanted some ambiguity. I’m not sure why they would’ve, but there are a few points you just made. I think you come to this question of why did they do it the way they did it? Particularly because Mueller then goes through and he does this analysis point by point of obstruction acts that were undertaken by the president and he asks, “Was there an obstructive act? What was the nexus to a judicial proceeding and was their corrupt intent, the three elements of the crime?” He does that analysis and when he thinks that there’s not evidence to find intent, he says it in a couple of places he says, “Look, we just didn’t find the evidence here.” But when he does think it’s there, he says it’s there.
Anne Milgram: And so it’s really strange for you and I as prosecutors, if you took away the first eight pages of the report, if you and I just read the body of the report, the substance, we would come out of it believing I think that there was sufficient evidence to charge on a number of points. It’s so hard for me to understand what Barr was thinking or why because I do think he’s sincerely dishonored the Department of Justice and been incredibly political. Page one of the introduction to volume two, under the first point Mueller makes when he says, “We describe the considerations that guided our obstruction of justice investigation.”At first he says, “A traditional prosecution or declination decision entails a binary decision to initiate or decline a prosecution, but we determined not to make a traditional prosecutorial judgment.”
Anne Milgram: The next sentence is, “The Office of Legal Counsel’s issued an opinion finding that, “The indictment of a, or criminal prosecution of a sitting president would impermissibly undermine the capacity of the executive branch to perform it’s constitutionally assigned functions.”” That point could not be clear that Mueller is basically making this decision. Then he says, “I’m an attorney in the Department of Justice, I fall under these regulations and so I accept the conclusions of the Office of Legal Counsel. Once I do that, I don’t think it’s fair for me as an attorney in the Department of Justice to make this type of final decision when there is no trial and there is no judge and jury.”
Preet Bharara: Yeah. It makes me think that you can argue forever about how many angels dance on the head of a pin. There was some grist for different points of view on this because of the way Mueller avoided the question and because of what he seems to have told Bill Barr. It just seems to me that what needs to happen for certain is that Barr and Mueller needs to come and testify.
Anne Milgram: These are the first questions I would ask Mueller, which is why he decided to do what he did and what conversations he had?
Preet Bharara: It’s interesting to me, the Bob Mueller, I know when he’s asked questions and when he conducts meetings and when he talks to you about a case or you ask him questions, he is really not, what’s the fancy word? Obfuscatory. He’s very straight forward. He’s direct. He uses plain language. You’ve seen him. He comes to a meeting, he takes his jacket off. He rolls up his white sleeves and he talks. I’ve seen him on the Hill a million times. It may be that they thought it was necessary to write the report in this particular way, which leaves some ambiguity as to what the intent was, what the reason was, whether it was left for Congress or not but I think if you get him in front of a panel of members of Congress when he’s asked straight forward these questions, I think he would answer them. By the way, we both watched, over the weekend and again before we started taping, this weird scene of Bob Mueller in suit and tie with his wife-
Anne Milgram: Easter Sunday.
Preet Bharara: Easter Sunday, finishing going to mass and he was, I think ambush is the right, by an MSNBC reporter who had a microphone and a camera on the sidewalk as Bob and his wife were trying to get into their car, by the way very nice parallel parking job I noted. [crosstalk 00:09:48]
Anne Milgram: I’m never really using that [inaudible 00:09:50].
Preet Bharara: I just avoid it. That’s why I will take an Uber because I can’t parallel park, don’t send letters or notes. It goes on for kind of mildly painful 30 or 40 seconds.
Anne Milgram: Mueller at the beginning, says, “No comment”
Preet Bharara: No comment. He says, “No comment,” but what is interesting about it-
Anne Milgram: Then the reporter continues to haunt him.
Preet Bharara: And say, “Why didn’t you make a finding? Will you come testify?” I think he asks him, and it’s just … it’s jarring to watch because another person, maybe this happened to you, it would happen to me occasionally and I didn’t feel like making a comment, but Bob Mueller was so uncomfortable even being around this reporter. I don’t think he looked him in the eye. I don’t think he looked at the camera. He kept his head down and his composure certainly.
Preet Bharara: But why was it so uncomfortable to watch? Lots and lots and lots of people, private citizens and also public officials get asked questions on the street as they’re coming inside out of their home. People have been pointing out that Ken Starr was greeted every morning he went to work at the Independent Counsel’s Office. It seemed to me that this was jarring because of the personality that Bob Mueller has and because he’s been so assiduously careful not to speak to the press. He stopped … Even there’s this report, he stopped going to the Starbucks around the corner from the office because he thought reporters would camp out. So he’s basically been a hidden figure for a long time. I didn’t love that.
Anne Milgram: Yeah. I didn’t love it either. Part of it also is that he’s with his family on Easter Sunday going to mass. It feels to me like there’s a space that just felt to me wrong. It also felt to me a little bit wrong, because there is no question in my mind like is there any possibility you think that Bob Mueller would have talked?
Preet Bharara: He was like, “Now that you mention it, let me go into great detail.”
Anne Milgram: It was never going to happen. They were doing that for the photo op of them chasing Mueller and I don’t like it.
Preet Bharara: Just to make it clear also people haven’t seen it. The reporter was very respectful, didn’t get in his face, asked politely a couple questions, called him sir, but it just … It didn’t [crosstalk 00:11:38].
Anne Milgram: It doesn’t feel right [crosstalk 00:11:38].
Preet Bharara: But, can I say-
Anne Milgram: Can I talk about one … I have to say also, I watched a lot of the coverage last Thursday and I was troubled by the fact, and maybe it’s because of this ambiguity, but I don’t think that the reporters stayed close enough to Mueller’s words in his report. There was a lot of, Mueller made it a jump ball. There was a lot of … There was just a lot of filling in gaps that are actually addressed in the report. I did not come out of last Thursday thinking that the American media did a fantastic job. By the way, I was on CNN, so I’m putting CNN-
Preet Bharara: You are part of the problem, Ann.
Anne Milgram: But it was troubling because the report is very thorough and there are questions like you and I are debating, which is like, why did Mueller do this? In some ways I go back to what we were talking about last Thursday, in some ways he did it in my view but he didn’t, because he does answer a lot of the questions. He just says, “I’m not answering them. I’m not making the final call.” But anyway, I think the journalists pieces, we have to up our game a little bit on this.
Preet Bharara: I do think that Bob Mueller should not be ambushed after he goes to church, but I do think also that he should come testify. There’s another aspect to this, the question of whether he left it for Congress. There’s lots of evidence in the report that he was, he makes references to Congress. He even says at one point in the report that even if there is an impeachment proceeding that’s not a substitute for later criminal liability also, which should be a chilling thing to Donald Trump and his lawyers.
Preet Bharara: Bill Barr was asked this question too about whether it was left to Congress intentionally. Barr said this, which is an interesting thing, he said, “Well, special counsel Mueller did not indicate that his purpose was to leave the decision to Congress, although I think when you read the document and understand the history of the country and what other special counsels and people at his type of position have done. I don’t know that I agree with that statement,” but then Bill Barr also says, “I hope that was not his view since we don’t convene grand juries and conduct criminal investigations for that purpose.” Well yeah, you and I never did.
Anne Milgram: Right this is-
Preet Bharara: You and I were not as special counsel-
Anne Milgram: Exactly.
Preet Bharara: Investigating the President United States.
Anne Milgram: He’s treated just not like he’s a special counsel, he’s treated as if Mueller … He basically said, “Mueller works for me,” during the press conference.
Preet Bharara: He’s not an assistant US attorney in some office, doing a standard criminal investigation. There’s a counter espionage aspect to it, a counter intelligence aspect to it, there’s a criminal aspect to it and there’s also the laying out of facts because of great public interest.
Anne Milgram: Yeah, and fairly so, there’s allegation that’s now been substantiated that a foreign government influenced our election.
Preet Bharara: Yeah, well there’s a recognition even on the part of Bill Barr that this is a special case. There are all these people who had been complaining now including folks on conservative television, that this report is an abomination. A, because it’s written in a way that’s derogatory to a lot of folks, but there was no decision to make a charge and therefore there should not have been report. That’s nonsense because the report was required and then second it’s Bill Barr himself who understood that there was a great public interest in it and some people don’t like the fact that there’s some redactions, but a lot of the report is available and say some pretty negative things about the president.
Preet Bharara: If people are going to complain about that, they should complain about the regulations and they should complain about Bill Barr.
Anne Milgram: Well let’s talk about the regulations and then let’s talk about the conservative spin. As sort of regulations, they’re a problem, they’re terrible and it shouldn’t be done like this and my view of that comes from a few things. First when you think about special counsels or independent counsels, usually they are independent of the leadership of whatever Attorney General’s Office or Department of Justice Organization and they’re meant to be because-
Preet Bharara: Do you want to back to the independent counsel Anne Milgram?
Anne Milgram: I would like to go back to a reformed version of the independent counsel-
Preet Bharara: You’ve heard it here.
Anne Milgram: I think it’s really important. I think it’s really-
Preet Bharara: It’s a good platform.
Anne Milgram: Important.
Preet Bharara: Anne Milgram, 2020.
Anne Milgram: Here is the thing, there really is a need … These questions were presented. You and I said a number of times Mueller’s going to speak at the end of the day we’re going to hear what Mueller has to say and he’s going to make the call and exactly that is what should have happened. Mueller should have directly released the report or released the summaries, which by the way were not redacted even though we were told they would be. Mueller should be the one if anyone’s going to do a press conference or testify before Congress.
Anne Milgram: Instead, we have Barr who’s the president’s political appointment, who’s now shown himself to be extraordinarily political, but even not knowing that upfront, there should be an independent space here and it shouldn’t be about going back through the chain of command that’s controlled by the president. If we care about checks and balances and how we think about investigating a president and having a meaningful inquiry, this is not the way to do it under the existing rights. I think in some ways to be fair to Mueller, not making a call, he’s in this incredibly strange position where he’s told to do this investigation, or else he says you can’t indict and then Mueller probably saying, okay, so now-
Preet Bharara: What am I supposed to do?
Anne Milgram: What am I supposed to do?
Preet Bharara: Although it’s interesting, could there have been away for the special counsel to indicate to the world, earlier than he did that they were not going to make a final call because of the way they viewed this OLC opinion. Certainly we’ve heard that they told the president’s lawyers some weeks before the release and maybe we wouldn’t have the same level of expectation being raised. On the issue of the regulations, I have a slightly different view. It may not be a fully different view, but people draft legislation and reform statutes always fighting the last war and trying to curb the prior excess and so people viewed Ken Starr as having abused his power and he talked too much and there was too much of a report to compensate for that and offset that going forward. The department drafted these new regulations.
Anne Milgram: Went to the opposite extreme.
Preet Bharara: Right. Then you have the anti Ken Starr, you have someone who keeps his head down, who doesn’t talk, who doesn’t release things, who didn’t even show up at the press conference upon the release of two years of work. Then it’s a natural inclination that I think you and others have, which is say, “Well, we should be then more liberal in the regulations and be more expansive.” But you never know if the next special counsel or independent counsel who gets put into office has integrity and is partisan or is doing it for the right … You just don’t know what the personality of that person is going to be, and so it’s hard to gauge how restrictive the rule should be and the guideline should be.
Anne Milgram: Right. [inaudible 00:17:27] the guard rails around it, but that the bottom line is you either want an independent special counsel or you don’t, and Bob Mueller ultimately was not an independent special counsel by the way that the regs are written and so-
Preet Bharara: Well, then one would argue, again just to push back a little bit that the regulations are designed to make public any occasion where the special counsel tried to do something and he was overruled and there was no such instance.
Anne Milgram: Right. There are some protections. I agree, but what the regs maybe you should say is that the special counsel issues the report period. That the attorney general does not get the opportunity to say yay or nay, based on what special counsel says. My pushback on it is really the fact that usually what you want with an independent counsel is you want them out of the chain of command and Mueller ended up squarely within it and you’re right, there were some protections for him, but what Barr did he did because of the way the regs are written and he was able to do it. That to me … We have to … Look, you’re talking about Ken Starr, as a somewhat political special counsel. We’re now looking at Barr as a political AG and so if we assume you could have a political person in either of those positions, how do you build the regs and how do you build the statute or structure?
Preet Bharara: First let me address the issue of what legal significance, if any, there is to Bill Barr making the call in a letter that he and Rod Rosenstein agree that there was no reason to say that the crime of obstruction had been committed. To my mind, there’s no legal consequence at all. It’s like it’s a statement by an Attorney General that did not need to be made, that was not intended to be made on the part of Bob Mueller, and in the absence of an ability to bring a charge because of the OLC conclusion, I don’t know that it has any effect-
Anne Milgram: But you and I talked-
Preet Bharara: Nobody in the public thought he was going to do it.
Anne Milgram: You and I talked last week about there’s a line in the report that basically says the president can be charged after he’s out of office. That’s a very clear from the law that the OLC opinion even says, he can’t be charged while he’s in office, but there it’s very clear that the president can be charged when he is out of office. Now if Trump lost in 2020 Barr would not stay as Attorney General obviously.
Preet Bharara: [inaudible 00:19:30] is where I think you’re going, which is a very smart point.
Anne Milgram: There’s a precedent that he set.
Preet Bharara: He said this thing and you had now you have the US Attorney, let’s say in the district of Columbia who might have jurisdiction and you have this roadmap and you have this evidence and the new US attorney believes or the sitting US Attorney remains in office, believes that the former president can be charged because Trump is out of office and this is hypothetical. Does the fact that Bill Barr said otherwise preclude the case from being [crosstalk 00:19:56].
Anne Milgram: I don’t know if it precludes it, but it makes it a harder case to bring and it’s a point for the defense for sure.
Preet Bharara: In an argument.
Anne Milgram: In an argument.
Preet Bharara: With the Justice Department to say, “Don’t bring the case.” But as you say then, in all likelihood, in fact we can say with some certitude.
Anne Milgram: Barr will not be there.
Preet Bharara: Barr will not be there, and you’ll have the next attorney general, which is the interesting thing when you think about what goes around comes around. I’m not saying, is it what comes around, goes around? What goes around comes around, something like that. I’ve got to practice my idioms. Yeah, you have all this rhetoric, which I think is very dangerous on the part of this president and his allies. Even when exonerated, exonerated, exonerated, no one will retaliate and go after Hillary Clinton who I believe … Hillary Clinton lost the election, right? Is she running for office in 2020? I don’t think so, but there’s this huge interest in going after adversaries.
Anne Milgram: I think it’s the playbook which is always play offense, always be attacking that. Always have an other someone that you attack. It’s worked for them many times and I think that she just falls into that category. Can we go back on one second on the conservative news because I followed a lot of this. There are a number of folks … And by the way, there are a number of folks who didn’t say this so I do not want to put everyone in one bucket, but even Rudy Giuliani, the president’s lawyer there and some conservative columnists were saying the president was completely exonerated on the Russia conspiracy. So they take volume one of Mueller’s report completely. We have … They take it as gospel, “Mueller found the president is innocent. He did not conspire.” But then on volume two they say, “Mueller’s terrible, the report should never have been written. It’s a complete joke.”
Preet Bharara: They’re cherry picking.
Anne Milgram: They’re cherry picking.
Preet Bharara: Are they picking the cherries? Wow. That idiom I know very well, it’s the one that we use in the law.
Anne Milgram: But, they even do it in the same sentence in some instances I saw over the weekend and I thought well you know the reports are either legitimate and Mueller did a legitimate job particularly when it comes to the facts and substance, or he did not.
Preet Bharara: Can we talk about one conservative critique, which I have mixed feelings about? Because I think it’s complicated. That the press got it wrong and the press owes us apology because they have had all these reports that are a drum beat in favor of a conclusion that there was collusion, there would be indictment et cetera, et cetera. Then the other side the press have been patting themselves on the back a lot and saying, “Look, a lot of these stories by Maggie Haberman of the New York Times and other folks about the Trump tower meeting and about the instructions to McGahn to fire Bob Mueller through Rod Rosenstein.” All those things turned out to be confirmed by the special counsel. I think in some ways, neither of those sides is right.
Preet Bharara: The press turned out to be correct, in so far as particular stories and particular facts and particular conversations and particular efforts that were made turned out to be correct. The overall effect of all of that, which I don’t know how you don’t have this. This would happen on a smaller scale with cases and investigations to my office board, and I’m sure it didn’t happen in New Jersey when you were in office. Causes not withstanding I think appropriate caveats in those articles, which seem to always say, this does not mean that a particular thing is going to happen.
Preet Bharara: It still combines when everyone is competing to get the next story and to push the envelope a little bit to create an expectation that-
Anne Milgram: It does.
Preet Bharara: In case, after case, after case that we investigated, there was an expectation that things were going to happen. Sometimes a phraseology in these reports adds to that, which I didn’t love. There’ll be a leak somewhere or a defense lawyer would tell a reporter a subpoena has been issued to a company, and invariably the press report would say, the investigation has expanded. They broadened their inquiry or the investigation has accelerated and it now it puts in peril the president’s children and the president’s dog and the president’s aunt.
Anne Milgram: It might have always been part of the standard investigation [inaudible 00:23:33].
Preet Bharara: Right. On the one hand journalists are doing their job and they’re getting information about a particular conversation that may be bad news for the president, but on the other hand they’re I think causing an acceleration in the hype, which maybe they can’t prevent. But the thing that they’re not doing and they’re not capable of doing, they’re not qualified to do that only Bob Mueller can do or in our own parallel universes you I can do, was make the ultimate conclusion.
Preet Bharara: You drop all these bits of evidence and they sound terrible. You don’t know all the facts and details. They’re not sifting through mitigating facts and innocent explanations for things, they’re just putting out there this sensational conversation or act leading to the public imagination and also to the talking heads.
Anne Milgram: That’s true. I think you’re right. I think the media definitely … We should talk about the media a little bit more, but I also have this reaction, which is that when I read those 200 pages of volume one, there is evidence and Mueller doesn’t say otherwise, but there is some significant evidence of the campaign taking efforts to benefit from the intelligence that they knew the Russians had hacked from Hillary Clinton and other Democratic officials.
Preet Bharara: That’s totally fine. Rudy Giuliani said on two programs yesterday, including the one that I was on, that is totally fine to take information.
Anne Milgram: I don’t agree with that.
Preet Bharara: Stolen information.
Anne Milgram: I do not agree with that.
Preet Bharara: From the Russians.
Anne Milgram: And again, it doesn’t … I respect that Mueller said, “I don’t think we can charge conspiracy here,” but that doesn’t mean that there isn’t evidence of wrongdoing. My takeaway from that 200 pages and I had some questions about the Kushner and the Don Jr. findings. I wasn’t as convinced, I think as Mueller is on those that they deserve to pass. I take at complete face value Mueller found that there wasn’t a crime, and I accept that. It’s still shows a president unfit for office. It shows a level of conduct that is stunningly below the standards that we should have in our country. There is evidence in my view of wrongdoing and you could say it’s ethical violations and not criminal violations.
Preet Bharara: Okay, so let’s ask the ultimate question, which I think we have some answer for. I read it the same way. Lots of people read it the same way. Why isn’t America engulfed in flames and the president as we speak, penning his resignation speech to the country and or being impeached?
Anne Milgram: Well, you just said it. I think you just did a pretty artful, job of talking through how this information has all come out in drips and drabs through reporting. What would have happened if we go back to before 2007 when smartphones came out, maybe even back before cable news was 24/7. If you imagine there’s no cable news 24/7, there’s no smart phone, we are not constantly getting information. There isn’t this level of reporting and around the clock awareness of what’s happening and the report drops more like a bombshell.
Anne Milgram: Then like, oh, we already knew most of that, which I think is-
Preet Bharara: I think is a completely different situation. I can change the hypothetical a little bit to go back in time. Let’s just say three of the stories on obstruction, the McGann story where Donald Trump clearly told him to get rid of Bob Mueller through Rod Rosenstein and leave the Corey Lewandowski story where the president thinks he was outside of government, not even in government to write a memo.
Anne Milgram: And Katie McFarlane I think.
Preet Bharara: Katie McFarlane and basically tell Sessions that he should say … The investigation should be narrowed in scope to future election interference. Let’s just even take one story, the McGann story, had that not been known, lots and lots of folks would be focusing on that because it’s new information. Now, it doesn’t change anything in the universe of legal consequence or the standards for impeachment or anything else, but there’s a public expectations thing that happens. When a politician or his allies are able to say, “Well that’s old news, that’s old news. We already knew that and nobody did anything about it.” It’s like how Donald Trump talks about his taxes. “Look, I didn’t release my taxes and people voted for me anyway,” and so when you-
Anne Milgram: It’s almost like a done, it’s almost like [crosstalk 00:27:22]. It’s a debate.
Preet Bharara: I said something like this last week in advance of the Mueller report, there’s the actual legal consequences of what is in the Mueller report and then there’s political overlay, especially if we’re talking about impeachment, and impeachment is a political process. It’s by definition a political process. It’s not a prosecutorial process. I remember thinking and then saying, if they were like three huge blockbuster new revelations on top of what the other things were that were confirmed, I think things would be in a different spot right now. It shouldn’t be. There’s no logic to that, as far as substance and as far as law-
Anne Milgram: There is something.
Preet Bharara: And as far as constitutional process, but the politics of it is such.
Anne Milgram: There’s something about the way we understand that world and I think as a whole America has been following this story really closely and had-
Preet Bharara: It wouldn’t matter when you were Attorney General and if there had been a reporter who happened to be close to the defense lawyer and use some of the evidence against the potential person who you’re charging and then you came close to the time you’re going to charge and it turns out that the indictment that you’re going to put forward to a grand jury basically confirms the things that were already in the public square, you wouldn’t shrink from that. That’s not your job.
Anne Milgram: Right. You bring the charge back.
Preet Bharara: You bring the charge. It doesn’t matter if it’s old news, unless it’s old, t’s being under statute-
Anne Milgram: Well, that leaves us the interesting question, which is did Mueller write, did he write for Congress? It appears he did.
Preet Bharara: But he could have said he was.
Anne Milgram: Right and why didn’t he say he did?
Preet Bharara: I don’t know.
Anne Milgram: That’s one of my questions too. I think it would have been a million times better if he had said, “I am not making this decision in the interest of fairness.” And he does say Congress has the ability to adjudicate this, but he doesn’t say, “I’m doing this for Congress.”
Preet Bharara: Please pause down for one second, maybe some two in the weeks. I think maybe people have been over reading that, there’s this one sentence that the press keeps focusing on, endless keep focusing on. It’s on page eight I think, of volume two where the report says, “The conclusion that Congress may apply the obstruction laws to the president’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.” Now some people have taken that to mean well Mueller was writing for Congress, and that means Congress can look at this conduct and can decide to impeach or not impeach the president.
Preet Bharara: I’m not sure it should be read that way. I don’t know what you think, and I thought that could be read to mean simply that on the question of whether or not the obstruction statute that Congress drafted and wrote and enacted into law, can that apply to the president as a legal matter not withstanding the arguments that Bill Barr and others have said about the presidents overarching constitutional authority and executive power, not necessarily that the invocation of Congress here, that it may apply the obstruction laws to the president’s corrupt exercise of the powers is about impeachment. It’s about what the statute itself means for purposes of prosecution.
Anne Milgram: Yeah. It’s very clear that Trump’s lawyers raised that defense, basically arguing that the president could not be held accountable of obstruction for engaging in conduct which he’s otherwise authorized to do, but again, it comes back to the corrupt intent. It is possible that it should be read the way you’re reading it, but I do think there are other parts of the report where Mueller references Congress, and even he points to a specific part of the constitution where Article One, Section two, Clause five, as well as a Section three, Clause six where and the OLC opinion discussing the relationship between impeachment and criminal prosecution of a sitting president. So he’s not hiding from the fact that impeachment is a possibility out there and that he’s aware that Congress sets this authority, he’s basically saying it’s legitimate to hold the president accountable otherwise, and there’s that great line we read last time, otherwise the president would be above the law.
Anne Milgram: So obstruction applies to the president if as OLC … The OLC opinion specifically says we’re not going to allow you to charge a sitting president because the remedy is impeachment. So there’s no question that if Mueller feels he can’t make a call because he’s constrained by the OLC opinion, the OLC opinion says the remedy is impeachment.
Preet Bharara: Right. That’s very important, and we should be saying that over and over again.
Anne Milgram: Yes, and so that’s there, and I think that’s hugely important.
Preet Bharara: Let’s talk about one more quick thing with respect to the overall report and then maybe address what happens next and whether impeachment will be on the table. But on this question of redactions, Jerry Nadler has made clear, issued a subpoena for the full Mueller report without redactions and I get it and members of Congress should get it, if it’s reasonable to be obtained, but I don’t see from reading the report that … Maybe I’m wrong here, that there are things behind the black marker, behind the redaction tape or whatever it is that they use, that is going to change the calculus as to what consequence should befall the president. Do you?
Anne Milgram: I tend to agree with you. There were a number of redactions most of which went to harm to other matters.
Preet Bharara: And most of which is in volume one and as we also did predict correctly, we won’t harp on the things we didn’t predict correctly, but the obstruction section is largely unredacted.
Anne Milgram: Right. Volume one is redacted because they needed to do a number of things including use the grand jury extensively and basically try to get foreign intelligence, and so there are means and methods that could have been in there. I still think congress gets to see the whole report. I was troubled by the fact that Barr, Attorney General Barr gave access to Giuliani and Jay Sekulow, President Trump’s lawyers on Tuesday and did not give congress access. They basically, Congress, got the same access we’ve gotten. It’s been reported that some select members of Congress will get additional access, but that the grand jury materials will still be blocked.
Anne Milgram: I find that problematic. I don’t think that’s consistent with existing legal precedent, but I do agree with you overall that I don’t expect to see things in the redactions that are going to be huge.
Preet Bharara: It just doesn’t seem the … They should get it, but that doesn’t seem to be the central political fight-
Anne Milgram: Agreed.
Preet Bharara: Because once they get them I don’t know how it changes the game.
Anne Milgram: Yeah, they should get them just so they see them and it’s part of checks and balances, but I don’t expect that it’s going to change the analysis.
Preet Bharara: I think we saw more of the report than some people feared that we would see.
Anne Milgram: We saw a lot.
Preet Bharara: Here’s another question. I wonder if your thoughts have changed since we first talked about it on Thursday. And that’s the question of whether Mueller should have compelled the president to come and talk to them by subpoena? I’ve been largely sympathetic to this time restraints or constraints that the Mueller team had, but some very smart people, including a former guest of the show who I have great deal of respect for, Ron Klain has been among the more critical of that decision. He said recently in the Washington Post, “Mueller only offers the one explanation.” It’s a good word, one.
Anne Milgram: Yeah, we don’t use it a lot.
Preet Bharara: Underused and very short. It’s a good short word that’s underused. “Mueller only offers the one explanation that by the time he formally asked for an interview with Trump, he already had substantial evidence in the course of a lengthy constitutional litigation,” et cetera, etcetera. Then he says, “This reflects two mistakes of historic proportion. First, by delaying the question of Trump’s interview until month 19 of his tenure, Mueller allowed Trump to run out the clock, a grave tactical error. Second in an investigation of this public import getting substantial evidence, but not the word of the president himself, fails to fulfill the special responsibility of a special counsel,” and so he’s pretty critical of not going that route. What do you think?
Anne Milgram: I can’t remember if I said it here, but I have said before and feel very strongly.
Preet Bharara: You have said it.
Anne Milgram: And I will say again, I thought it was critical that the president be interviewed by Mueller and I’ll tell you I was wrong about something, which is that I thought that Mueller would compel the president’s testimony and here’s why. The normal rules of criminal prosecution where you … Let’s say you and I are investigating someone for obstruction of justice, we call their lawyer and say, “Hey, do you want to come in and talk about it?” They say, “No, we don’t want to come in. We’re not going to come in, you can charge us, or don’t charge us, we’ll see you in court.” You then bring a charge and it goes to trial and-
Preet Bharara: You don’t compel the testimony of somebody against whom you already have substantial evidence.
Anne Milgram: And who’s going to be-
Preet Bharara: Of obstruction.
Anne Milgram: The defendant. There’s special rules at the Department of Justice about compelling the testimony of a target of the investigation. It can be done. It’s very rarely done and-
Preet Bharara: Do you think this is different.
Anne Milgram: I think this is different because of the OLC opinion, because it was always clear that there was never going to be a trial. So once you are at that point, to me the question that the American public wanted to know and that should have been resolved is, corrupt intense is one of the three elements of the crime and I think having the president on that point is critically important. Now, I understand why Mueller did what he did. When I read it, I read it to say, and I think you and I talked about this last week. I read it to say, “I got enough.” I know he corruptly intended these things. So that … But the fact that he doesn’t make the final conclusion-
Preet Bharara: He doesn’t say that.
Anne Milgram: Yes, and that’s what makes it-
Preet Bharara: Maybe at some point we could-
Anne Milgram: Maybe we could get Mueller on.
Preet Bharara: Yes. No, I’m just going to find him at church, maybe Christmas, or follow the MSNBC guy. It’s like, “Hey, I’m here too, midnight mass.” Maybe compile a list of clues, although arguably you shouldn’t need clues, it should be forthright but reasons why it seems clear that Mueller didn’t think ahead over the threshold they would discount by the LCP. What’s interesting, the parallel in criminal law is that if people don’t want to come and talk to you and you can sometimes give them immunity, performal immunity so that they no longer have the ability to say, “My right against self incrimination will be implicated because I have immunity.” There is a form of immunity that the president has as you point out because of the Office of Legal Counsel opinion, but that is limited, because-
Anne Milgram: And because he’ll be impeached.
Preet Bharara: He could still be impeached and he could also be charged after he leaves office.
Anne Milgram: That’s right.
Preet Bharara: And some people think so. I do think there’s lots of ways in which the president is different, that’s why the release of derogatory information, given the OLC opinion and given the mechanism that we have in the constitution for impeachment also changes that calculation too.
Anne Milgram: Yeah. Let’s say the president was interviewed and for the sake of argument made false statements. I know it’ll surprise you, but it’s possible the president would have lied.
Preet Bharara: No.
Anne Milgram: It is possible. So let’s say he walked in and lied, how would that have changed the calculation?
Preet Bharara: Well, they still would take the position that he can’t be charged and I think you’d have a report that would have a few more pages in it. Well, two things, you would have more pages that you would set forth the president’s lies if they were demonstrable and also in the sections that they sort of infer what the president was thinking and they have a view about whether or not Jim Comey was more correct on the, can you lay off Flynn, with a president who denied it was more correct? You would have the benefit of some minutes of interview with Donald Trump. My guess would be that what Trump would say in those moments, in those minutes would cause the special counsel to have further ability to say that Jim Comey’s side of the story is more credible because hypothetically Donald Trump when asked questions about those things, might not be able to back up his conclusions, backup his memory. He may contradict himself and that’s just further evidence for the conclusions they’d already come to.
Anne Milgram: Yeah. It’s also possible he would have told the truth, and then if he told the truth consistent with what people like McGahn and Comey said, that would have been obviously further evidence of wrongdoing. I actually think that his lawyers, it’s an interesting question on my mind, it wasn’t their smartest move. I say that purely from a legal litigation perspective, but not having the president come in, I think it does impact the report and the credibility of the report and the findings.
Preet Bharara: Look, there’s this long forgotten deposition that Donald Trump participated in long before he was president and the civil case and it’s a stunning thing. It reminds me of what Sarah Huckabee Sanders said and did in connection with the report. These people, I’ve said this before, I had my whole riff about the clowns, about Roger Stone and Michael Cohen and all these people who when they’re out and about in the world or even at the podium, in the White House press briefing room, they lie, they lie, they lie. They say things that are not true, that they know are not true. They obfuscate, they embellish, they exaggerate and they … What’s the other one? they lie.
Preet Bharara: They they get in a formal proceeding and they walk the lies back and they change their story and they say, “Well, I didn’t fully mean that. This is why … ” and this deposition from many years ago, I think it was in … I can’t remember what the cause of action was. You have a chase into Donald Trump who walks back time and time again the things he said publicly and the things he said in connection with his threat to the adversary, and you probably get some of that.
Anne Milgram: He did a better job than I think most people would have expected in that deposition at being very controlled and being very willing to walk back the misstatements that he previously made. So I suspect you might be right, that, that might be the outcome. At least the factual outcome if he testified. What do you make, Preet, of the … There are a couple of things that happened with Giuliani in addition to the fact that he was on TV right before you. One-
Preet Bharara: You never thought that would be a good opening act.
Anne Milgram: Yeah. So first of all, he had said he was going to release this response to the Mueller report, 30 pages.
Preet Bharara: The counter report.
Anne Milgram: The counter report. He was ready to rumble by all accounts, by his public statement, and then the second thing, he hangs his hat, really the line in Mueller’s report where he basically is talking about obstruction and what they’re trying to do is they’re trying to counter all this evidence of obstruction I think that Mueller’s put in there. There’s a line in Mueller’s report where he basically says, “Essentially, we’re not going to make a conclusion, but by the way, if we could have exonerated the president, if there was nothing here, we would have said there’s nothing here just like we did.” They don’t say this, but consistent with what they did in volume one on the conspiracy action to hack the election and engage in the social media fraud.
Anne Milgram: What Giuliani basically hangs onto this and says, “We have 2000 years of English and ancient precedent where it’s always that the prosecutor has to prove the defendant’s guilty. It’s not that the defendant has to exonerate and prove that they should be exonerated.” And he makes this whole argument that Trump does not have to prove that he’s not guilty that Mueller has applied the wrong standard.
Preet Bharara: Yeah. That’s a correct point if you’re going to court, and as we’ve said it is an odd formulation on the part of Bob Mueller, maybe twisting himself into a little bit of a pretzel to avoid what he thought was an inviolable commandment from the Office of Legal Counsel opinion that we keep talking about, that a sitting president can’t be prosecuted and indicted and causes him to have to say because he thinks as we believe from the reading of the report that the threshold has been met for obstruction.
Anne Milgram: And he doesn’t want people to walk out and say [crosstalk 00:41:30].
Preet Bharara: But he can’t say that. He doesn’t want to then say the opposite, because it’s not true, and that’s maybe the ultimate conundrum that he found himself in. Some people would say, Ron Klain, I may mature in my view on this and evolve in my view on this. It sets it up for a little bit of impossibility. That on the one hand you feel muzzled from saying the thing that you think is true, which causes then people like us to try to read between the lines when you know what, when a prosecutor speaks, even as special counsel, there’s a good argument to say we shouldn’t have to rely on inferences. We shouldn’t have to read between the lines. Why is it that Ann Milgram and Preet Bharara, hopefully above average experience and intelligence in these matters, having to sit around for 45 minutes trying to understand what the intent was and whether it passes the threshold or not. Maybe it’s the case that I thought before the report was released, maybe it’s the case would make more sense to me and how I was defending it initially. It was just too close to question.
Preet Bharara: I’ve recited this story from my own time in office where we had a case that was so close, the prosecutors weren’t sure. One day they thought we should charge, the next day they thought we shouldn’t. We ultimately decided not to because the benefit of the doubt goes to the target. When I read this document it does not look like it’s too close to call and it seems that only in the context of it being too close to call because it’s so even the evidence on both sides of the question. Do you have to force us to be inferring things?
Anne Milgram: Right. If you look at the Lawfare blog, which both you and I have now read and I think they’ve done an extraordinary job, it’s … They’ve done a heat map on the obstruction of justice.
Preet Bharara: A heat map?
Anne Milgram: A heat map. First it was like [crosstalk 00:43:02].
Preet Bharara: I like it. I always like a heat map.
Anne Milgram: They call it a heat map, I actually don’t even know what a heat map is. I think it still looks like a chart that’s in a different direction, but they find basically substantial evidence of the obstructive act, the next is to a proceeding a grand jury or other proceeding and corrupt intent. On efforts to fire Mueller, they find substantial evidence are similar from the report on all three efforts to curtail Mueller on all three. The order to McGahn to deny the attempt to fire Mueller and conduct toward Manafort, trying to prevent Manafort from cooperating on all four of those.
Anne Milgram: Then on the other, and there are a lot of them that they go through. All the ones that Mueller did, there are some that evidence doesn’t establish but then they’re somewhere, they’re not sure. It’s unclear from the Mueller evidence, but at a minimum this is probably a fairly conservative reading of the report to say, in all four of these particular obstruction acts we find … They found that Mueller laid out sufficient evidence of all three of the elements of the crime.
Anne Milgram: That’s a really important thing and what I think we see here, you’re right, there’s an impossibility here, which is that on the one hand he wants to say, “In the effort to be completely fair, I don’t want to say he did it or he didn’t do it. I don’t want to make the final call.” Actually that’s not true. He doesn’t want to say, he’s willing to say he didn’t do it-
Preet Bharara: [inaudible 00:44:18].
Anne Milgram: He’s just not willing to say it. He’s just not willing to say he did it.
Preet Bharara: Which if you’re a logician, logician. [crosstalk 00:44:25] does he logic, a logician.
Anne Milgram: So proving we’re not logicians.
Preet Bharara: Right. I’m an immigrant. Yeah. He was prepared to stay in a conspiracy, so axiom one is he cannot say the president committed a crime because that would be unfair because the president cannot defend himself. Axiom two, is we know he believes you can say the president did not get commit a crime because he did so, with respect to volume one. So then when you get to the question of what he intended to say in volume two, it seems that the only answer is he felt that the president committed the crime. But because of axiom one-
Anne Milgram: He didn’t want to say it.
Preet Bharara: He can’t say it. The only other possible explanation can be, I think, what I was saying a couple of minutes ago and that is that he can’t say one way or the other because it’s such a closed question. It’s right in the middle, but that does not look like what he’s saying. So the inference has to be through this logical analysis that he thinks he crossed the threshold, which is why also he’s preserving it for later. Why he makes the point to say that a president can be charged once he’s no longer in office, and there are references to Congress, but he hasn’t come out to say it, and that strikes me as odd.
Anne Milgram: Yeah. Once he made the decision that he wouldn’t make a call on whether or not there was obstruction, he found himself … It’s very difficult to then … What he did was lay out the evidence without making the call. It’s all open to all of these interpretations.
Preet Bharara: And that’s why if you credit Bill Barr, when Bill Barr asked him this question and I don’t fully credit him, I think we’d like to see this in an open hearing, he said, “No, it wasn’t but for the OLC opinion, did we decide we can’t say one way or the other on obstruction,” and I’m going back to the pretzel, it seems to be a little bit pretzely.
Anne Milgram: I like pretzels but not this kind.
Preet Bharara: Certainly, before we leave the topic of the report and talk about the possibility of impeachment and future proceedings, we forgot to talk about Donald Jr.
Anne Milgram: Right. One thing that Mueller does, and I think this is probably also into an obstruction, is he does give the benefit of the doubt. It’s very clear that they go into that meeting, that Donald Trump Jr. takes that meaning with the Russian lawyer in the summer of 2016 hoping to get dirt on Hillary Clinton, believing that the meeting is about dirt. I think Mueller makes the point of, yes, they were trying to get every benefit they could to win the election. Then he finds that Don Jr, and Kushner, particularly when it comes to the crime here, would really be violating the federal election law. That you’re not allowed to accept something of value from a foreign adversary. Mueller goes out of his way to basically say they had no idea what they were doing, and you and I both know, ignorance is no defense of the law, but it’s a little bit more than that because they have to have intent and so it-
Preet Bharara: It gets confusing for people to understand. I understand people are scratching their heads about it.
Anne Milgram: Yeah, and I think rightfully so because it looks like, you take a meeting with a foreign adversary knowing that they’re going to pedal you information-
Preet Bharara: And later you lie about it by the way.
Anne Milgram: And then … And later you lie about it, and by the way it’s not a secret. It comes out that same month, I believe, and I don’t remember the exact timeline that Hillary Clinton’s emails have been hacked, and so have the emails of Podesta and other members of the Democratic Party. So it’s not … Mueller gives them a lot of credit, but when you put all the pieces together, it certainly looks like they willingly sought information from the Russian government that would be damning to their adversary and would be something of value. They may have just decided it’s a little bit of an esoteric crime. It doesn’t look like they got the information out of that meeting. It looks like the information came in later ways. So Mueller seems unwilling to push on that one.
Preet Bharara: Right. The other aspect of it though, I thought also was that even though there was evidence that they were receiving a thing of value, or intended to receive a thing of value, that they wouldn’t meet the statutory threshold of what that value was.
Anne Milgram: Right. So you’re right that they wouldn’t meet the statutory threshold, but it does seem to me how do they value it? Those emails … We should talk about this just for one second because it is clear reading the report that the president, a lot of his actions and the obstructive conduct he engaged in was because he feared for the legitimacy of his election, which by the way we now know was impaired, that the election-
Preet Bharara: Don’t let him hear you say it, he gets very upset.
Anne Milgram: I think he would be very upset and he should be very upset about that in the report because it’s probably the most important. Historically, it’s probably the most important finding, in some ways is that this absolutely certain finding that the Russians hacked the election to favor Trump and hurt Clinton. But at the end of the day, how do you value that kind of support? I wasn’t sure if that was them trying to find a way out of the crime or if they really felt like they’d looked up the case law and they believe that they couldn’t prove a certain value.
Preet Bharara: All right, let’s talk about the future and the dreaded I word. Not so dreaded for some people, impeachment, because people keep conflating things. There’s a difference between saying, “We should tomorrow in the House Judiciary Committee take a vote on articles of impeachment that have not been drafted and whether you could draft quickly.” There’s a difference between that and saying, “Well, maybe we should have some hearings. We should ask some questions. We should have Mueller come to testify and explain his thinking. We should have Bill Barr come to testify and explain what he said and why he said it.” They should probably have some of the main witnesses like Don McGahn explain. Especially since Rudy Giuliani keeps accusing him of, either getting it wrong earlier on, close to calling him lying and do their own investigation and fill in any holes and gaps that they have.
Preet Bharara: I also think it would present to the public some understanding of what happened in a tactile way as opposed to having people read a report. So do you think that there should be some proceedings, at least?
Anne Milgram: Are you saying impeachment proceedings or just-
Preet Bharara: Hearings.
Anne Milgram: Hearings.
Preet Bharara: Hearings, yeah, well, obviously with an eye towards taking some action later, but for now, why don’t we have some hearings and hear what people have to say and explore some of the issues raised in the report?
Anne Milgram: There should definitely be hearings. There’s no question I would like to hear Mueller, I would like to hear Barr and I agree that there are a handful of other witnesses that I think it’s important we hear from. Here’s the question I have for you, you can have impeachment proceedings and not also vote articles of impeachment. There’s three options-
Preet Bharara: People go to [crosstalk 00:50:34].
Anne Milgram: To hearings, impeachment proceedings and bringing and voting on articles of impeachment.
Preet Bharara: The parallel being the grand jury, or it’s not the same thing? Sometimes you go into the grand jury and you present evidence and you ultimately decide based on what you’ve seen that you’re not going to pursue an indictment. Remember articles of impeachment, that’s just the indictment. The trial happens in the senate it’s a proof and conviction, it’s just laying out the allegations if you think they’re well stated.
Anne Milgram: Here’s the thing I can’t get my head around when we think about impeachment. If there are not hearings for impeachment proceedings, if there’s not a significant national public review, it’s hard for me to understand how there can be any accountability and I know a number of folks are talking about this now, but it does-
Preet Bharara: You’re beating a dead horse in.
Anne Milgram: Yeah, but it does. It does.
Preet Bharara: That horse is dead.
Anne Milgram: Is it?
Preet Bharara: Yeah, it’s dead.
Anne Milgram: Awesome.
Preet Bharara: I’m taking the Rudy position of a dead horse.
Anne Milgram: Yeah, and look, I think a lot of the public is fatigued on this and is tired of talking about Mueller and hearing about this part of the presidency and the precedent.
Preet Bharara: They’re worried about the precedent, the political precedent of what happened to the Republicans when they pursued impeachment. Really, Which by the way-
Anne Milgram: Is not a reason not to pursue impeachment.
Preet Bharara: It’s not, and also, I think most reasonable people would say there’s a lot more going on with Donald Trump and what he did with respect to the country and how he tried to undermine the rule of law and a fairly continuing investigation, which by the way became a big deal, as Rudy Giuliani likes to say, when his own handpicked deputy attorney general appointed Bob Mueller in the first place. The Bill Clinton matter was about a lie over a personal relationship. This is a lot more than that. Now, maybe that’s not a great precedent because there’s a lot of folks who’ve evolved in their view on whether or not that impeachment process should have been undertaken, but look, the people who were responsible for making these decisions, they’re not appointed prosecutors, they’re not special counsels. They are elected members of Congress and there’s an election coming up and so they are obviously, and I think legitimately, arguably it’s a lot of adverbs, going to take into consideration, politics.
Anne Milgram: I guess the question is for you and I, and I guess ultimately for Congress and the American public is that it’s easy to say, well there’s an election coming up, let’s vote how we feel about the president and what he did, his conduct here, let’s vote that in the election. But I think it … And I’m not the first to point this out, but I think it’s worth noting that is it really enough to just say, we hope our side wins, that the Republicans in Congress have basically decided we’ll go with the president on some of the things we don’t agree with because we want our side to win.
Preet Bharara: I don’t think so, because then what does it say to the next person who’s going to do something? Oh, I guess you can just weather the storm and hope it comes out in dribs and drabs [crosstalk 00:53:12].
Anne Milgram: And hope you win reelection.
Preet Bharara: And you say old news, not just fake news and you can say beating a dead horse. Look, Elizabeth Warren, whatever you think of her politics or her chances of winning election and whether or not this play on calling for impeachment is about politics or isn’t. Here’s what she said, and it’s not a terrible point. She says, “This isn’t about politics,” which is hard for a politician to say, but she says, “This isn’t about politics. This isn’t even specifically about Donald Trump himself. It is about what a president of the United States should be able to do and what the role of Congress is in saying, no. A president does not get to come in and stop an investigation about a foreign power that attacked this country.”
Preet Bharara: The worry is that if you do nothing and you let it go, a, it emboldens the president, who by the way-
Anne Milgram: B, it emboldens Russia.
Preet Bharara: It also emboldens the president and his allies to push forward the completely BS storyline that everything that happened with respect to the investigation was false, was a hoax. The president calls it an attempted coup and treason. If you say, “Well, we’re not going to take a look because we’re worried about politics, it gives a little bit of heft to these absurd arguments and the part of the president’s allies and then what does it say for the next time? Barr’s already been placed so, so, so low by this president that just imagine the next president and the president after that what they think they will be able to get away with.
Preet Bharara: Pointing back to the time when there was no impeachment, there were no hearings, there was no serious talk of it. When you had issue, after issue, after issue. Where if these things had become, had been known before the election, maybe the president wouldn’t have been elected.
Anne Milgram: Right. Yeah. I’m at the point of thinking, this is a political question, but that the people who make that decision have to do it in a way that sees beyond the politics of just today and tomorrow and sees the whole picture for what it is and our democracy and the real fear that we have not sufficiently also addressed, the hacking and the ability of foreign governments to infiltrate elections and influence elections and the president’s conduct. So it will be fascinating for us to watch what happens.
Preet Bharara: There’s another irony in this, if the president gets the benefit of other individuals and institutions doing their jobs in a particular way that he doesn’t like initially and ultimately, but boy do they deliver for him, and then he turns around and bashes them in the head. Example number one, Jim Comey. Jim Comey arguably delivered him the presidency because he issued that letter and because of the things he said about Hillary Clinton. Trump turns around and says, “He’s terrible, he’s terrible, he’s terrible, he was trying to help Hillary Clinton.” The president hates the press. The press as we’ve been describing over time because it dripped out these stories about obstruction and about taking advantage of help from the Russians. That’s all old news by the time the report comes around that helps them also.
Preet Bharara: Then the investigators themselves, Bob Mueller decided not to state that a crime was committed. Bob Mueller decided to take a particularly helpful action with respect to the president on the fundamental issue that he was supposed to be studying and investigating conspiracy with the Russians, helping him evade the possibility of impeachment in it and yet he turns around and attacks them and says it was attempted coup and there’s 18 angry Democrats. Time after time, whether it’s the press, the FBI director, or the investigators themselves, Congress, that can be [inaudible 00:56:43], keep helping him and he then grows more emboldened after that help-
Anne Milgram: To attack them.
Preet Bharara: To attack them further. It’s mind boggling. Let’s take a question from a listener, Anne and Preet, does AG Barr have the power to shut down the ongoing investigations referred to by the Mueller Report? Thanks Deb.
Anne Milgram: The short answer is that the attorney general could shut down any federal investigation, but that it’s very unlikely that we would see that happen. It’s one of the reasons why I think it’s important that Congress see the full unredacted Mueller report. Again, it’s a check and balance on the process, but one really important thing to remember is that Mueller did farm many of these cases out to other US attorneys offices, which tend to be more independent than the Department of Justice, and even though AG Barr is over the entire Department of Justice, if as we believe Mueller farmed them to the Southern district of New York, the Eastern District of Virginia, Washington, DC, I would not expect to see those investigations harmed.
Anne Milgram: Though again, I would like Congress to be briefed and to have access to the ongoing matter material, and so, it’s another check and balance.
Preet Bharara: Yeah, I agree. Look, the AG can do all sorts of things like look what he did with respect to his, I think distorting summary of the Mueller report, but depending on how far along those investigations are, depending on the fortitude of the people in the US Attorney’s offices who were doing the investigations and whether they’re on the cusp of making a case or not, it becomes a very difficult thing to pull off. I can’t say it couldn’t happen, but it becomes difficult I think because people have backbones and they stand up for their case and the good faith basis for bringing a case for someone to reach down from that high up from Mt. Olympus in Washington, DC, those kinds of things become known.
Preet Bharara: All right. That’s all the time we have today for Insider, so send us your questions to firstname.lastname@example.org.
Anne Milgram: And we’ll do our best to answer them.
Preet Bharara: This is the CAFE Insider podcast. Your hosts are Preet Bharara and Anne Milgram. The producers at Pineapple Street Media, are Kat Aaron, Jenna Weiss-Berman and Max Linsky. The executive producer at the CAFE is Tamara Sepper, and the CAFE team is, Julia Doyle, Calvin Lord, Vinay Basti and Geoff Isenman. Our music is by Andrew Dost.
Preet Bharara: Thank you for being a part of the CAFE Insider community.