Preet Bharara: This is CAFE Insider. I’m Preet Bharara.
Anne Milgram: And I’m Anne Milgram.
Preet Bharara: How you doing, Anne?
Anne Milgram: Hey, Preet. Something’s different today.
Preet Bharara: We sometimes talk about what we did over the weekend. This weekend, I shaved my beard.
Anne Milgram: Did it take all weekend?
Preet Bharara: It took a lot of the weekend. I had some trepidation about it.
Anne Milgram: I liked the beard.
Preet Bharara: It’s gone.
Anne Milgram: You look great, of course.
Preet Bharara: Well, I can grow it back.
Anne Milgram: My husband didn’t have a beard when we were dating, and then on our honeymoon he grew one. We’ve been married now seven years and he still has the beard.
Preet Bharara: He still has the beard.
Anne Milgram: He still has the honeymoon beard, yeah.
Preet Bharara: You know what will cause hair to grow on your face? Talking about Bill Barr. I think that’s a-
Anne Milgram: What a great segue.
Preet Bharara: That’s a hair supplement. So a lot has happened in the last week. We got the Bill Barr hearing, claims of perjury and false statements and misleading statements, and Nancy Pelosi has said a bunch of stuff. There are letters going back and forth, and Trump lawyers have sent letters, and Lindsey Graham has sent a letter, and Rosenstein sent a resignation letter.
Anne Milgram: There were a lot of letters last week.
Preet Bharara: It’s a lot of letters.
Anne Milgram: Yeah.
Preet Bharara: A lot of letters. There’s allegations of campaign spying, still. Trump had a long, I don’t know, phone sex call with Putin. I don’t know what was going on there.
Anne Milgram: Oh, so you didn’t see that coming?
Preet Bharara: Yeah, I didn’t. So anyway, so you and I had not sat down since last Monday.
Anne Milgram: It feels like years.
Preet Bharara: It does feel like years. Every week seems like …
Anne Milgram: We could do an hour a day. Really, there’s enough to talk about here we cover.
Preet Bharara: We could. I had some time to talk about Bill Barr’s testimony on Stay Tuned, but you and I haven’t talked about it. I wonder what your thoughts were, sort of overall of how Bill Barr performed.
Anne Milgram: I find the whole thing to be deeply disturbing and problematic as an alumna of the Department of Justice, where, again, it’s worth noting that the Attorney General is the lawyer for all the people of the United States of America. He’s not meant to be the president’s lawyer. And every time he talks it looks like he’s doing that. Bill Barr is one of the reasons why people hate lawyers, because of the way he tries to talk and explain things using these just twisty, turny deceptive turns of phrase and words in so many places. The media’s been really focused on one or two spots that we can talk about, but everything feels a little bit, I don’t know if sophistry, which is like-
Preet Bharara: Good word.
Anne Milgram: That’s what I kept thinking, sort of like the artful use of words to deceive and mislead people. But everything is his effort not to tell the truth. We’ll talk in a minute about whether or not he’s actually lying in a way that could be criminally proven. But he is definitely misleading and he’s giving answers that are completely … I mean, his conversation about the things he said about McGahn, the way he’s approached talking about his letter and his summary. I mean, it’s all falsehoods. They’re sort of contrived legal arguments that, to me, on their face you could see that people could give them credit, but when you really think deeper … And a lot of them you couldn’t give credit. But there are some where you think … If you didn’t understand the issue, he’s the top law enforcement officer in the United States, he says something and you could think, “Oh, is that true?” And they’re not true.
Anne Milgram: So my overall takeaway is I was very sad for the Department of Justice and for all of us as Americans that he’s our AG. I also very much believe that he’s not being forthright in the way that he needs to be. Wouldn’t this go to bed quicker if he was more … If what his position, which is there’s no crime here, is true, then why not just walk straight into that and own that?
Preet Bharara: I don’t know. I get caught up, like you have, on the debates he keeps having about words. I’m trying to grapple with what the word suggest means. He said at one point, in an exchange with Kamala Harris … And then, the thing I still can never get over and I keep harping on, and so I’m sorry for harping on it, his tortured definition of what a summary is over and over. You said summary and he won’t call it a summary. If you can’t even sort of agree on basic words in the language, like is it a summary or is it not a summary, then you can’t get very far. I think that was some of the frustration that the senators felt at the Judiciary Committee last Wednesday.
Anne Milgram: I just looked it up, and summary is defined as a brief statement or account of the main points of something.
Preet Bharara: Oh.
Anne Milgram: How is his letter possibly not a summary?
Preet Bharara: Because he said it was just a recitation of the principal conclusions.
Anne Milgram: Right. That sounds like a summary.
Preet Bharara: It’s totally different. No, come on. You’re-
Anne Milgram: It’s also briefer. The report was 448 pages. It was four.
Preet Bharara: Yes. You take a long thing and you give a shorter version of it.
Anne Milgram: You make it shorter, yeah.
Preet Bharara: I believe that’s a summary.
Anne Milgram: Yeah. What’d you think of the questioning with Kamala, the sort of lines of questioning. She had a couple of-
Preet Bharara: Yeah, so I think she’s very good. I think she’s very smart. I think she’s one of the great questioners on the committee, actually.
Anne Milgram: She has a good temperament.
Preet Bharara: Good temperament and she asks short questions and she has good follow up. We saw this in the Kavanaugh hearing as well. She does a good job of raising questions about the credibility of the witness. The one line of questioning I thought was great. The other line I have a little bit of a different view of. When Kamala Harris had a chance to ask Bill Barr a question, she said:
Kamala Harris: Has the president or anyone at the White House ever asked or suggested that you open and investigation of anyone? Yes or no, please, sir.
Preet Bharara: Both by his response and also his demeanor, it looked like he didn’t like the question. He said, “Um, I wouldn’t … I wouldn’t, ah.”
Anne Milgram: Because he didn’t want to answer it truthfully.
Preet Bharara: He didn’t want to answer it because clearly something happened.
Anne Milgram: The answer is yes. Yep.
Preet Bharara: She said, “Yes or no?” which is what prosecutors do. Barr says, “Can you repeat that question?” which is usually a sign, if you’re a smart person like he is-
Anne Milgram: You’re buying time.
Preet Bharara: You’re buying time, exactly. And Harris says, “I will repeat it. Has the president or anyone …” And she repeats the question. “Yes or no, please, sir.” Barr’s like, “Um, the president or anybody else?” Harris, “Seems you’d remember something like that and be able to tell us.” That’s when Bill Barr says, “Yeah, but I’m trying to grapple with the word suggest.”
Anne Milgram: Also not a complicated word.
Preet Bharara: I don’t think so.
Anne Milgram: No.
Preet Bharara: I suggest it’s not. So Barr says, “There have been discussion of matters out there that they have not asked me to open an investigation …” “But perhaps they’ve suggested,” Harris says. Barr: “I don’t know. I wouldn’t say suggest.” And then Harris uses some other verbs.
William Barr: I wouldn’t say suggest. I-
Kamala Harris: Hinted?
William Barr: I don’t know.
Kamala Harris: Inferred?
Preet Bharara: But clearly something was going on there. I mean, obviously, a truthful answer to that question can’t be no, because we’ve seen the president on television and an on twitter basically say, “Investigate the investigators.” He talks about Strzok and he talks about Comey. He talks about the 13 or the 17, I lose track of the number, angry Democrats. You have his supporters saying that people should be investigated. You have now intimations about Joe Biden and his son maybe should be investigated, and then Hillary Clinton, even though I don’t believe she won the presidency. So what do you make of that?
Anne Milgram: This was a great question because either way he loses in the sense that we talked about last week in thinking about how you pose good questions. Their questions were either way, the answer is problematic for the person you’re questioning. Here, if Barr had said, “Yes, the president has told me to investigate XYZ,” that’s terrible for the president. Again, he’s already done it publicly, so we already know that the answer’s not going to be no. He also didn’t say no because, again, we know that he can’t say that. Also, I think he would’ve been outright lying, and the one thing I’d say about Bill Barr is that he’s trying to mislead and to carefully choose words to try to skirt the truth. But I think he’s trying not to outright lie.
Anne Milgram: Again, we can talk about whether he has outright lied in certain places, but I think he got caught here and he got surprised by that question and he didn’t know how to answer it. So his answer, it really is absurd. “I don’t know. I wouldn’t say suggest.” The dictionary definition of suggest is put forward for consideration. “Has the president or anyone in the White House ever said anything to you about opening an investigation?” was basically what Kamala was asking, “or implied you should open one?” He couldn’t answer that question. The Department of Justice is not meant to be the president’s political arm that pushes vendettas against enemies and uses the power of criminal prosecution to do so. And yet we see that the line between what Trump is trying to do at the department, he’s trying to do exactly that. So someone like Barr not being able to answer that question should concern all of us. What was your take on it?
Preet Bharara: I think he’s trying to thread the needle of not saying something that’s clearly a misrepresentation or a lie, then we get to some other things that have been talked about too in connection with his testimony, and at the same time not get the president in trouble and not sort of broach something that is going to open up a can of worms. Although I think her question did open up a can of worms.
Anne Milgram: One other point, maybe just to add on to the question that Kamala Harris asked of Barr about this, is she then followed up with a letter to the Inspector General of the Department of Justice, basically expressing concern about whether or not the department is independent and asking the Inspector General to conduct an investigation because of Attorney General Barr’s comment essentially being unable or unwilling to state whether he had been directed to open investigations at the request of suggestion of the president or other White House officials. Do you think the Inspector General, Michael Horowitz, will open up that investigation?
Preet Bharara: It might, and it’s a smart request on Kamala Harris’s part.
Anne Milgram: The Inspector General is … He’s appointed … How would you describe his role?
Preet Bharara: Well, the Inspector General is a little bit like the Special Counsel in so far as it’s a lengthy term. There’s supposed to be some modicum of independence. Typically, Inspectors General serve multiple presidents over a period of time. Michael Horowitz was appointed by President Obama and confirmed by the Senate and has not been removed and has been conducting various investigations, including one that talked about the way that Jim Comey conducted himself with respect to the Hillary Clinton email investigation. He’s working on some other things now that get to some of these questions of people thinking that investigators didn’t act according to the rules and the laws. So he may. He very-
Anne Milgram: It’s an important check and balance on the department.
Preet Bharara: Yeah, he may. The other line of questioning that Kamala Harris undertook is, I think, a little bit more complicated. She makes a point that on its face seems like a very good one and seems like a good criticism. That is, she asked Bill Barr, “In reaching a conclusion,” meaning the conclusion that the president had not obstructed justice, she says, “Did you personally review all of the underlying evidence?” Barr says, “No.” She says, “Did Mr. Rosenstein?” “No.” “So you accepted the report as evidence?” She has then said, and others have said, “Well, that’s a form of malpractice. How could you make the decision having read only the Mueller report and not the underlying evidence?” by which I presume she means the grand jury testimony with the witness interviews, the 302s, the summaries of reports that the FBI agents make of interviews, documents, emails, public statements, all of that.
Preet Bharara: Maybe in an ideal world where the issue goes to the President of the United States of America, the sort of chief law enforcement officer who thinks that he’s entitled to make the final decision, in this case Bill Barr, although there’s some debate about whether it was his decision or Mueller’s decision, you could look at some of the underlying evidence. Maybe it’s a good idea. But it is not insane, as was suggested, for the chief prosecutor to take, at face value, a voluminous report on what the underlying evidence showed, and say, “We’ll take it as true and then make our decision.” Now, I think it’s the wrong decision. I don’t think it comports with what the report said. But how nuts do you think it is that they didn’t look at the underlying evidence?
Anne Milgram: When you were a trial lawyer, before you tried a case did you go through all of the underlying evidence?
Preet Bharara: Yes, absolutely. [inaudible 00:11:13] and you always did. But when I was U.S. Attorney, I mean, I was given hundreds of prosecution memos over time and had to approve or not approve various things. The number of times … It happened. As I think about it, in very important cases, yes, I asked to look at some of the underlying … But not all of it.
Anne Milgram: No, but you-
Preet Bharara: That’s an impossibility if you’re running an entire office.
Anne Milgram: In the course of overseeing those investigations, I mean, I assume that there were times where you would ask people to go back and gather more evidence or to look at certain things-
Preet Bharara: Yes.
Anne Milgram: … they hadn’t sufficiently written up a part of an issue you were concerned about and you asked them to go back and write that up. I mean, there’s a lot of back and forth in the normal course of these things.
Preet Bharara: Yes, 100%. Look, I recite in the book. I have a whole chapter In the book where I talk about the investigations we did of the Senate Majority Leader and the Speaker of the Assembly. Before anyone wrote any kind of memo we’d have regular meetings. I described going into prosecutors offices and asking them about the state of affairs, asking them about the interviews that were taking place. I looked at underlying documents throughout the investigation because I cared about it a lot.
Anne Milgram: So this is a little bit different in what Barr was doing because you were overseeing it as U.S. Attorney. In the really high-profile cases, I would have weekly meetings or monthly meetings. I would have briefings. I would ask to see evidence or ask to basically have people write up areas that I was concerned about or I wanted to know more about. And there is this back and forth that goes on. There were also supervisors who I had hired or promoted. I think there’s two other distinctions here that are important. The first is that if Barr did not make a call on whether or not the president had committed a crime, I would feel that it was okay for him not to have reviewed the underlying evidence. If he basically stamped Mueller’s report and handed it out to the public without his take on it, in that case I would not be disturbed that he basically said, “I took the report at face value. I’ve known Bob Mueller. He’s an excellent lawyer and prosecutor. I took it for what it’s worth.”
Anne Milgram: Okay. Here’s the distinction here. He’s making not just the decision as the ultimate prosecutor, but because he’s really putting himself in Mueller’s shoes in some ways. When we think about what happened here, Mueller said, “Okay on conspiracy, absolutely no. On obstruction, I’m not going to make a call because the OLC opinion doesn’t allow the president to be tried. He’s not going to have a trial with a judge and a jury. So I’m not going to make that call.” Which, as we’ve talked about, essentially was his way of saying, I think, that there’s a pattern of obstruction of justice here.
Anne Milgram: Bill Barr undid that call. So he basically is saying … I think we could critical of Mueller for not saying it more explicitly, and there’s a lot of steps that you go through. But Mueller said, “I can’t exonerate him.” And then Bill Barr exonerated him. So that part of the process, to me, is more akin to you’re going to try a case, you’re going to present evidence or you’re going to make the final call, and you’re going to undo what somebody else has done, 448 pages of it. I’m not even sure he read … Do you think he even read the full report in those two days?
Preet Bharara: No, no. I mean, there’s an exchange in which he has a back and forth with Senator Cory Booker where it doesn’t look like Bill Barr, the Attorney General, knew about the sharing of polling data with Mr. Kilimnik. So, no, it’s not clear at all. By the way, now that we’ve seen the report, and you and I have looked through it pretty assiduously, it is really hard to get through that report in even a day and make a final decision. Now that we see how voluminous it is and how detailed it is and how sort of complex it is, that was a very short period of time.
Preet Bharara: Here’s the other way I think about it, just in hearing you talk about it. And not to get too into the lawyerly weeds, but it seems to me that Bill Barr was treating the Mueller report like a judge might treat a motion to dismiss something, in which the judge is required to sort of accept as true the allegations being made and doesn’t need to look at the facts and no discovery has taken place, and can decide to make a determination of dismissal and say, “There’s no case here, there’s no cause of action here even if I accept everything as true.”
Anne Milgram: But usually that’s some base on the law. And here what-
Preet Bharara: Well, he’s a little bit, so it’s both. Right? He’s a little bit, I think, prejudged the whole thing, as we’ve talked about from time to time.
Anne Milgram: Yes, that’s true.
Preet Bharara: That memo, where obviously, what’s coloring all of this is not just his interpretation of the facts. I think it’s very much driven by his expansive view of executive power. His view is expressed in that unsolicited memo to the Justice Department months earlier that a president can basically do all these things without violating the law.
Anne Milgram: No, no, that’s true. But in his four-page memo he also says the president wouldn’t be convicted for obstruction of justice, the information doesn’t sustain the level of proof that a conviction on this crime. So he is making, I think, a factual determination as well. Look, to Harris’ point, he did exactly what Bob Mueller said he wasn’t going to do. Bob Mueller is the person who prosecuted and investigated this case for two years. He did it, essentially, with a four-page memo in two days and he didn’t review the evidence. That’s a bad thing, to basically go out and say the president is innocent. It just makes it look even more like he’s not playing for truth, justice, and what’s right. He’s playing of the President of the United States. That troubles me deeply.
Preet Bharara: Do you want to talk about a couple of other exchanges that now maybe look a little different in light of the back and forth between Bob Mueller and Bill Barr, those letters that became public where Bob Mueller clearly, on multiple occasions, wanted the Justice Department to put out the Special Counsel’s own summaries that didn’t need to be redacted to the public, as opposed to the four-page letter that Bill Barr sent on March 24th. One of those is an exchange from back in April between Charlie Crist, Democratic Representative from Florida and Bill Barr, where Charlie Crist says, “Reports have emerged recently that members of the Special Counsel’s team are frustrated at some level with the limited information included in your March 24 letter. Do you know what they are referencing with that?”
Preet Bharara: Not the greatest question in the world but I think ordinary people would understand it. Barr says, “No, I don’t. I think, I think …” And then he says, “I suspect that they probably wanted more put out, but in my view, I was not interested in putting out summaries,” which we’ve already discussed is bizarre because he put out a summary. That’s maybe why he doesn’t want to call his own thing a summary, so he can say this thing with a straight face. Was that perjury?
Anne Milgram: There’s a couple of questions here. Obviously, he’s under oath and so I thought about this, actually, more as a 1001, where you’d lie to someone conducting an investigation, which could be part of … We’ve talked about this in the context of lying to FBI agents. You’re lying to a member of Congress about a material fact.
Preet Bharara: Is it? Is it a lie?
Anne Milgram: I don’t know if … It goes back to my view that he slides around or tries not to answer, directly, the questions. I did read this as if you read the … When you’re a lawyer, and again, this is why people hate lawyers, so let me acknowledge that [crosstalk 00:17:58]-
Preet Bharara: I like lawyers very much.
Anne Milgram: I do too. I love lawyers. But it’s the sort of … If you read the question, do you know what they are referencing with that? They is the press. There’s an expression of frustration with the limited information. And then Barr is saying, “No, I don’t know.” He could be saying, “I don’t know what the press is talking about.” Right? And again, I’m parsing here, which is what I think he was doing. But, to me, ultimately, at the end of the day, it’s completely false and it is a lie. Now, would it be a prosecutable lie in my mind? I would not charge this crime as a crime for a lot of reasons. But here is what I think. He says, “No, I don’t.” He kind of closes it down like he doesn’t know anything about any issues. Right? Then he says, “I suspect that they,” meaning Mueller’s team, “probably wanted more put out.” But he didn’t suspect anything. He knew.
Preet Bharara: He knew it, absolutely knew it, right.
Anne Milgram: There are four occasions in which Mueller … There’s one before the report comes out where Mueller is saying, “Here are my summaries. We would like you to use our summaries.” And then there’s three times after the report comes out, two in writing, one by phone call. There’s no way he doesn’t know that they thought that there was an issue with the summary he did and they wanted their summaries out. What do you think? Would you prosecute this for perjury or false statement?
Preet Bharara: No, I would not for various reasons because you can see how a jury might look at it differently, because you have to get to intent. But what I don’t get is … That’s why I agree that it’s completely false. If someone in your family dissembled that way about something-
Anne Milgram: Yeah, if your kids did that, what would you do?
Preet Bharara: Yeah, you would say, “Come on. Knock it off.” What’s also weird to me is it’s totally unnecessary. You have to know at that point that the letters at some point may come out.
Anne Milgram: Going to come out. I agree.
Preet Bharara: Yeah. Look, on other occasions, Bill Barr is perfectly capable of saying a flat no in ways that also make him look not very good. When he’s asked, “Will you recuse yourself? Will you follow the instructions of the ethics officials?” He says-
Anne Milgram: No.
Preet Bharara: He says no, very forthrightly. Frankly, it doesn’t make him look very good. He says, “Because I’m the decider.” On other questions too, he’s very forthright to a fault when he wants to assert his power and his prerogatives as the Attorney General. What I don’t get is why couldn’t you here just say, “Yeah, I think I do know what they’re talking about. They wanted to put more out-
Anne Milgram: “I didn’t want to do it piecemeal.”
Preet Bharara: “I didn’t want to put more out for all these very good reasons that I’m reciting to you, that you may disagree with.” So I don’t get the point of it.
Anne Milgram: Do you think he got just caught by it? It feels weird to me that he would not have been prepared for that question. Because you and I, we actually haven’t even had a chance to talk about this, but knowing who Bob Mueller is, he’s pretty conservative. He’s deeply respectful of the chain of command. For Bob Mueller to put something in writing, it’s like he’s screaming at Bill Barr. So for most people, they might say, “Oh, the guy wrote a letter.” No. He papered him, which means he put, on paper, as a record for all time, “You did something wrong,” to Bill Barr. “You’re not representing this. And by the way, you’re defeating the whole purpose of the Special Counsel, which is to bring the truth to the American public and to do a good investigation.” It might not seem like that big a deal but it is literally like shouting by Bob Mueller.
Preet Bharara: It is. Remember what Bill Barr said about the letter, then.
Anne Milgram: It was snitty.
Preet Bharara: Snitty. That is a very-
Anne Milgram: I haven’t even heard that word before.
Preet Bharara: That is an underused word.
Anne Milgram: Yeah. You want to bring it back like Bill Barr?
Preet Bharara: I think snitty may apply to a lot more things.
Anne Milgram: By the way, I read the letter. The letter isn’t snitty.
Preet Bharara: It’s actually very straightforward. It was a weird moment in the hearing because Barr generally actually retains his composure. He can be infuriating because he doesn’t answer everything completely and forthrightly.
Anne Milgram: He’s calm though, as a rule, yeah.
Preet Bharara: He’s a pretty calm guy. He’s a pretty calm guy. With respect to this letter, he said, “Bob Mueller was a political appointee and he was a political appointee with me at the Department of Justice. The letter is a bit snitty.” Then he says, “I think it was probably written by one of his staff people.” Do you think Bob Mueller didn’t have the power of the pen over this letter that you describe as something that’s a shouting missive?
Anne Milgram: It doesn’t matter who wrote the first draft. Bob Mueller signed it. Just like, do you think Bill Barr wrote that four-page summary himself?
Preet Bharara: No. I thought that was kind of snitty, actually.
Anne Milgram: Yeah, yeah.
Preet Bharara: Can I say that as-
Anne Milgram: Excellent use of the word.
Preet Bharara: I think it was snitty.
Anne Milgram: But somebody else drafted it and then he probably edited it and made it his own. It’s a silly thing to say.
Preet Bharara: It reminds me of something else that I saw Rudy Giuliani say. There’s many things you can say about Bob Mueller. Among them you could say war hero, and did a thankless job. But of all the criticisms, he is not an uncareful person.
Anne Milgram: He’s extraordinarily careful.
Preet Bharara: I saw, similar to this, Rudy Giuliani, when talking about some aspect of the Mueller report and how Bob Mueller came to this conclusion about or lack of conclusion about obstruction, I heard Rudy Giuliani say, “Yeah, that section of the report, I bet Mueller didn’t read it very carefully.”
Anne Milgram: There’s no way.
Preet Bharara: There’s no way. I don’t even get that criticism.
Anne Milgram: He read every word a thousand times, to the point where he was probably blurry-eyed at 3:00 in the morning. But there’s no question. There’s one other thing from the hearing too. We have a listener, Jessie, who wrote in and asked us why Bill Barr wasn’t pressed about Senator Van Hollen’s question of Bill Barr from a previous hearing, quote:
William Barr: I will discuss that decision after the report is-
Sen. Van Hollen: Did Bob Mueller support your conclusion?
William Barr: I don’t know whether Bob Mueller supported my conclusion.
Anne Milgram: Jessie writes, “It seems like Van Hollen’s question and answer are harder for Barr to dance around.” What I think Jessie is asking is why didn’t the senators push more on that, because this is consistent with a conversation we’re having which is that it’s incredibly clear that Barr knew exactly what Mueller thought of his summary and that Mueller was not a fan of it.
Preet Bharara: Yeah, I agree with it. I think this is also clear dissembling. It is also trying to make it seem like there was not a huge amount of daylight between Barr and Mueller on this particular score so I don’t get it. It wasn’t necessary. Clearly, an ordinary person, understanding the question, would say, “Yeah, I think there were probably some disagreements.” In fact, Bill Barr said at the press conference before the release of the report, “Rod Rosenstein and I disagree with and disagreed with and continue to disagree with some of the analysis of Bob Mueller, especially on the law and how expansive executive authority is.” So I don’t get why you would sort of leave a misimpression here. But I do think that if you’re looking at the question of perjury or the crime of lying to Congress, that this is even more ambiguous than the exchange with Crist, and it would be difficult to prosecute.
Anne Milgram: It’s a pretty general question.
Preet Bharara: No, it’s this thing we keep coming back to, both with respect to the president and other people in the White House, and now with the Attorney General. We should expect something more than behavior that comports with the criminal standard.
Anne Milgram: Yeah, that shouldn’t be the question. The question shouldn’t be the Attorney General, it’s fine as long as he didn’t commit a crime. Right?
Preet Bharara: Yeah. If a judge asked you any of these questions when you were a line prosecutor or if any of the people you supervised gave this kind of answer repeatedly during a court hearing, not a Congressional hearing, during a court hearing, I would expect to get a call from the judge, and say, “You had a prosecutor in here-
Anne Milgram: No doubt.
Preet Bharara: “Who was being too cute by half. You need to talk to that person and make sure that doesn’t happen again.” And that person would lose credibility in that courtroom for the rest of that proceeding, that trial, and maybe for the rest of their career. That’s the kind of thing that tens of thousands of lawyers, who Bill Barr oversees, have to hold themselves to.
Anne Milgram: Yeah, so what do you think this means for the men and women in U.S. Attorney’s offices who are out there and what you, I’m sure, trained as a United States Attorney is, you act with integrity and truthfulness, and then you see the boss, the head of the organization, doing the exact opposite? It’s a terrible thing for the …
Preet Bharara: Yeah, so I don’t know. There have been other occasions, most notably, in my experience when Alberto Gonzales was the Attorney General. I think a lot of people, they just do their jobs. It doesn’t sort of matter what the head of the agency is thinking or saying. It probably doesn’t help but I’d like to think that the rank and file folks who are prosecuting public corruption cases and robbery cases and all the kinds of things that they do that keep the country safe and the individual districts safe and hold people accountable, that it’s sort of a thing that they can ignore and keep their head down and just do their jobs. I hope so.
Anne Milgram: Yeah. Preet, what do you make of Barr, sort of his reasoning around his obstruction decision and this whole … the whole analysis he does of corrupt intent and whether or not the president, because he was legitimately exercising his authority, whether he could be prosecuted for obstruction?
Preet Bharara: As we’ve said before, I think Mueller and his team reached the opposite conclusion, even though they didn’t state it, which that’s still confusing to me. But the idea that someone, because they thought they were being, in his own mind, pursued improperly or potentially being falsely accused, that you can then decide that you can engage in conduct that is then unblameworthy in any way, shape, or form, makes no sense at all.
Anne Milgram: So if a mobster thinks that they’re being investigated and it’s totally a fake, false investigation, and they-
Preet Bharara: If the mobster thinks it.
Anne Milgram: … and the mobster thinks it’s a fake investigation, kills a witness who’s been called to a grand jury or … I mean, I’m giving you the most extreme example, or gives that witness a plane ticket one-way to someplace really far, under this theory, if the mobster thinks that the investigation is totally false, that justifies any at of obstruction?
Preet Bharara: No.
Anne Milgram: In your view.
Preet Bharara: In my view, no.
Anne Milgram: In Bill Barr’s view?
Preet Bharara: Bill Barr seems to think that that has some bearing. Look, I suppose that in some theoretical way at the margins it an have a bearing on the intent of the person, in the same way that there has been this debate back and forth on the question of whether or not, if there’s no underlying crime proved, that’s not dispositive as to obstruction. But there’s an argument, I guess, if the circumstances line up in a particular way, which I don’t think they do here, that that bears on whether or not the actions taken were intended to obstruct. Here I think they were absolutely were, and I think Bob Mueller feels the same way. But I understand the theoretical point that there’s some relationship between those two things.
Anne Milgram: I’ve given the most extreme example, of course. But the corrupt piece is what’s important here. It’s not that the president’s legitimately exercising his authority. It’s that he’s trying to exercise his authority because of a corrupt purpose. It’s not consistent with the purpose of his authority, which could be to fire someone in the Department of Justice or to do something else. Of course, he has that authority. But here he’s not using the authority for the legitimate purpose and reason that that authority is meant to be. He’s using it to prevent an investigation or to stop an investigation. That’s a totally, in my view, different question. By the way, I think you and I are sort of talking about this, but Barr’s theory, on its face, is deeply problematic, that it’s one thing to ask what they intend. It’s another thing to basically say, “Well, I think everything’s fake so I can’t have corruptly intended something. I’m just exercising the normal authority because it’s not legitimate so I’m trying to stop it because it’s not legitimate.” That’s just not a viable way to see a criminal prosecution or a theory of obstruction of justice in my view.
Preet Bharara: Yeah. I think part of what’s going on is he’s conflating intent with motive. If you intend to do a thing, you intend to cause a witness not to testify, you intend for someone to be fearful because you’re going to dredge up things about that person’s relatives, like he did with Michael Cohen, or you intend to get someone to be quiet because you’re dangling pardons in front of them, it doesn’t matter that your motivation was frustration or your motivation was that you’re angry that this was a bogus investigation. Your intent was to obstruct, and that’s an important thing that we’ll talk about from time to time. Intent and motive are different things. The Attorney General of the United States, I think, a little bit conflates those.
Anne Milgram: Yeah. It’s a great point, and the government never has to prove motive. So he’s sort of pulling it in as an excuse here in a way that … By the way, you always want to understand what someone’s motive is. But it’s a great point made.
Preet Bharara: So Bill Barr, I think, it sounds like, testified in front of the Senate Judiciary Committee on Wednesday and had enough because he … Look, I don’t blame any Cabinet official for not wanting to come to the circus that sometimes is Congress two days in a row. But he was scheduled to testify in front of the House Judiciary Committee led by Jerry Nadler.
Anne Milgram: And he didn’t show.
Preet Bharara: And he didn’t show.
Anne Milgram: He ghosted the House.
Preet Bharara: Ghosted.
Anne Milgram: He ghosted the House Committee.
Preet Bharara: It seems like a kind of a snitty thing to do.
Anne Milgram: Yeah, I agree.
Preet Bharara: I’m going to use that word a lot going forward.
Anne Milgram: It’s a good word.
Preet Bharara: Get used to it. So part of the reason that he ghosted the House Judiciary Committee is he objected to a change of format, which, by the way, I think a lot of people, you and I included, welcome. And that is, so that there’s some light as opposed to just heat generated, following the five-minute rounds, which don’t generate a lot of light, they were going to have staff counsel for the House Judiciary Committee on the Democratic side, and then also, in fairness for the Republican side, to have, I think, a 30-minute session so they could do an uninterrupted series of questions with appropriate follow-ups from a person who’s a professional. And that was too much for Bill Barr.
Anne Milgram: Part of his response, it was a little bit of just whining and complaining. Really, the argument was, as I read it was, you don’t need an outside lawyer. You have a lot of lawyers on the committee. So what do you need to hire an outside lawyer for? To me, the bottom line is Congress gets to do oversight how Congress wants to do it. It just is the way it is. Barr is a little bit of a bully here. He’s sort of exerting his power and saying, “You know what? If I can’t come on my terms I’m not coming.” It is snitty.
Preet Bharara: I have two observations. One that a lot of people have made, and that is yeah, it’s one thing to say this is changing it up a bit and it doesn’t seem to be appropriate. But in the context of just a few months ago a private citizen in a high-stakes circumstance, having accused the incoming potential Supreme Court Associate Justice, Brent Kavanaugh, of committing sexual assault, she subjected herself without objection to an outside lawyer, as we talked about before. For Bill Barr not to do the same, I think is obnoxious and-
Anne Milgram: And he’s a lawyer and Christine Blasey Ford isn’t.
Preet Bharara: Yes, and offensive. But then second, what I found rich, often, is an administration that is the most norm-busting administration on the history of the country, I think … Everything they do is different from how it was done before, whether it’s attending a certain kind of reception or using a twitter account in a particular way. For them to say, “Well, no. No, we want to adhere to the norm that only members get to ask questions,” even though there have been occasions before when they have done it differently, is a bit rich to me.
Anne Milgram: Yeah, it’s absurd. It’s absurd. There are lots of examples where, when the norm is to their favor they adopt it and when it’s not they blow right through it. And so there’s not a-
Preet Bharara: So what’s going to happen?
Anne Milgram: What’s going to happen? Well, what happened this morning is that the House Committee issued … They said that they’re going to consider contempt against Barr, not for the lack of testimony but for his failure … He also did not provide the unredacted version of the Mueller report, which, again, I think Congress legitimately does get to see. There may still need to be conversations and … Actually, I thought Nadler was pretty conciliatory in saying, “We want to talk to you about this and we want to jointly apply to a court to get access to the grand jury materials.” So they’re not asking Barr to do anything that he doesn’t have full authority to do, in my view. So I would expect that that contempt does get voted and that-
Preet Bharara: But then what?
Anne Milgram: But then what? Then, I think you have to go the civil route. The criminal route, you’ll never get a prosecution of Barr for being in contempt. You have to go the civil route and see what a judge says. The probably, really, is that if Congress doesn’t push this, if the House doesn’t push this, then they’re essentially letting it be clear that the executive branch gets to ignore every request that they don’t want to answer. That’s a terrible precedent for checks and balances. It’s a terrible precedent for oversight. I guess the question for you is what else could they do?
Preet Bharara: Well, you know what you could do? You could be a congressman from Tennessee and you can bring a plastic chicken and a bucket of fried chicken to make the point that Barr is a chicken. Did you catch that?
Anne Milgram: I did see that. I did see that, yeah.
Preet Bharara: So that’s been-
Anne Milgram: What was your take on that?
Preet Bharara: Not good. Not good.
Anne Milgram: I laughed. I think it was not good but I have to confess that I giggled a little bit when I first saw it because I thought, “Was is that chicken doing in the United States Congress?”
Preet Bharara: I saw John Oliver last night, who pointed out, and I believe it to be true-
Anne Milgram: How do stay up that late?
Preet Bharara: I’m a night owl.
Anne Milgram: You’re amazing, Preet.
Preet Bharara: It’s not that late. It’s like 11:00.
Anne Milgram: It feels like 3:00 in the morning.
Preet Bharara: He said, “No, there was no KFC open at 9:30 in the morning, so he had to buy the chicken the night before-
Anne Milgram: The night before. It was premeditated.
Preet Bharara: “… and keep it in his fridge and then bring it.” And he’s chowing down on the chicken. I thought the best analysis comes from noted political commentator Sarah Silverman, who said, “The plastic chicken is funny. But the plastic chicken and then the actual fried chicken-
Anne Milgram: Too much?
Preet Bharara: “… is too much.” I think she said this is what comedians call a hat on a hat, which you’re not supposed to do in Congress or anywhere else.
Anne Milgram: So the advice to Congress is plastic chicken okay, KFC, yeah.
Preet Bharara: One hat. That’s a norm that should not be violated.
Anne Milgram: I [crosstalk 00:35:09] you.
Preet Bharara: But by the way, I also saw Steve Cohen-
Anne Milgram: What if he’d come in a chicken suit? It would’ve been a hat on a hat on a hat.
Preet Bharara: Yeah. Is that a hat trick? I think it might be. A couple more things. I saw Steve Cohen say on television right before I was appearing that he thought that one thing to do is pursue Congress’ inherent authority to hold the AG in contempt and not just simply make a referral, go to court, but have the Sergeant at Arms-
Anne Milgram: Take him into custody.
Preet Bharara: … take him into custody and bring him to, I guess, Congress jail. I was asked what I thought of that. That’s not happening. So the combination of Congress jail and the chicken does not, I think, make for an effective argument about how to proceed. But there’s, I guess, this other possibility of impeachment of the AG.
Anne Milgram: Right. Impeachment of the AG would proceed the same way that impeachment of the president would, so you’d have to have a majority vote in the House of Representatives and then a two-thirds majority … It goes, essentially, for trial to the United States Senate and you need a two-thirds majority to vote to impeach Barr. It’s clear that that is not going to happen, that there’s no political will in the Senate to impeach Barr. So I don’t think it’s realistic. I also don’t think that the House jail is realistic. That’s a pretty extraordinary measure, to put handcuffs on Bill Barr and take him to the House jail. It feels to me, as part of the rule of law that there has to be a body that’s willing to deliberate on this question of does the executive branch have to comply with these subpoenas. I would hope here that a civil court of law would do that.
Anne Milgram: This past week, a letter was released that had been written by the president’s personal lawyer, Emmet Flood, about the Special Counsel’s report. It appears that that report was written the day after the report was released. But it was only made public during the past week. Here’s my question for you, Preet, or my first question. This looks to me like it might have been … Remember when Rudy Giuliani was saying that he was ready to rumble and that he was going to release their own counter-report? This looks like it could be sort of the shorter version of that, like the greatest hits of their arguments against the Special Counsel report.
Preet Bharara: Oh, yeah. Well, so it slams Bob Mueller. It calls the report essentially a political document. It makes some points that are not crazy on their own and in a vacuum. They say things like prosecutors are not in the business of establishing innocence any more than they are in the business of exonerating investigated persons. So this idea that Bob Mueller said, it seems in the report, that I can’t make a determination on this or that, he says, “Well, they have a binary choice and that’s what they’re supposed to do.” In an ordinary universe, that’s not a crazy statement to make. One of my responses is, well, this is not an ordinary circumstance and you have the OLC opinion that make prosecution of the president an impossibility, and so that changes the calculus a little bit, I think reasonably. And second, you could argue that that’s a little bit what Bill Barr did. You know?
Anne Milgram: Right. Yeah.
Preet Bharara: If you’re not supposed to do this as a prosecutor … I mean, he didn’t do exactly this. But Bill Barr essentially said, “Yeah, I’m taking it upon myself, in the absence of the Special Counsel making the decision, I’m essentially exonerating the president,” and said it in a way that allows the president and Kellyanne Conway and everyone else to say the chief prosecutor in the United States of America, the Attorney General, did the very thing that this letter says you’re not supposed to do. How do you square that?
Anne Milgram: Yeah. No, that’s a great point. I read the exoneration line. Again, I think Mueller is very careful with language, generally. But I do think there’s that paragraph, and it’s a little bit complex, where Mueller has basically said there’s no crime of conspiracy. And then he gets to obstruction and says, “The OLC opinion stops me from reaching a conclusion here but I’m not exonerating him and I want to be very clear that that’s what happening here.” He says that because I think he probably correctly read that if he didn’t put that line in, that it would be, “I’m not making a call,” people would assume it’s because there’s no evidence of a crime.
Anne Milgram: So he wants to say, “Wait a minute. Let’s be clear. I’m not saying he didn’t do it.” They seize on that one line to basically say that Mueller flipped the standard of guilt, which is probable cause for a grand jury indictment beyond a reasonable doubt for a trial. And that’s not true. Mueller didn’t flip the standard of guilt in this case. Mueller used the traditional standard of guilt but he did put that one line in just to make sure nobody, which is exactly, by the way, what would’ve happened here, that nobody go out and say he’s exonerated. And in fact they’ve already said he’s exonerated. But Mueller’s line stops them from being able to say that credibly.
Preet Bharara: Right. Look, there’s a colorful sentence in here, half of which I don’t disagree with, in which the president’s lawyer, Emmet Flood says the Special Counsel’s Office instead produced a prosecutorial curiosity. It kind of is.
Anne Milgram: It is.
Preet Bharara: The next part is a little more colorful and I wouldn’t necessarily agree with this characterization, but they call it part truth commission report and part law school exam paper. That’s a little snitty.
Anne Milgram: Yeah. You know what’s funny about this, though? I was thinking about this as I read this. There is an issue with how the Special Counsel is set up. It’s different than other commissions have been done where it’s left to a Special Counsel or an independent counsel to vet the issues for prosecution and also to issue a fully public report about everything that’s happened. That takes you out of that prosecutorial binary yes or no charge or not charge. A truth commission is a strong way of saying it but it is more of a sort of broader mandate to look at the issues not just from a criminal justice perspective but also from a wrongdoing perspective. Because the standard for criminal charges is one thing. The standard for impeachment is another.
Anne Milgram: But there is also this very important section of what’s happening, which is that the American public wants to understand and know what’s happened on a very significant matter with a foreign government. So there is something that is true about Mueller was sort of slotted in to be the answer to all three of these things. The way his mandate was done, it really was through the prosecution lens. And put on top of that the fact that the president can’t be charged, it gets pretty complex.
Preet Bharara: Can I make one more point about this letter, because I think the letter itself is something of a curiosity? That is Emmet Flood and the president’s lawyers seem to be very upset at the fact that all this stuff is in a report that became public. Right? They say about the report it’s laden with factual information that has never been subjected to adversarial testing or independent analysis, which is what internal memos often have, in fact may always have, because, by definition, you haven’t gone to court yet. Then he says it’s full of inconclusive observations. And then the letter says, “This species of public report has no basis in the relevant regulation and no precedent in the history of Special Independent Counsel investigations.” Yeah. It wasn’t a public report. It was provided confidentially to the Attorney General, who then made it public. So in an odd sort of perverse way, they’re complaining about Bob Mueller putting things in the confidential report that then the president’s sort of other lawyer, if you watch his demeanor, Bill Barr made public.
Preet Bharara: Then say again, I mean, they say it repeatedly, “Prosecutors are to speak publicly through indictments or confidentially in declination memoranda.” That’s what Bob Mueller did. He spoke publicly through indictments and we’ve seen many of them, and confidentially in this declination memorandum, which then Bill Barr made public. I know it seems odd.
Anne Milgram: It was their choice, right. Yeah.
Preet Bharara: Yeah. Obviously, you and I embrace that choice and think it should have been made public. But it’s an odd criticism of the report, given that it’s the Attorney General himself-
Anne Milgram: Who made the decision.
Preet Bharara: … who made the decision.
Anne Milgram: It’s a good point. That’s a good point. You’re right.
Preet Bharara: Then the other part of the letter that I think is useful because it tells us something about the path going forward is whether or not there’s going to be executive privilege asserted with respect to other people testifying, like Don McGahn, the president’s lawyer, who’s a chief figure in all of this, who spoke to prosecutors for, I think, 30 hours, they say. The first point they make about privilege seems to me to be untenable. I’m curious what you think. “The president’s not to asset privilege is not a waiver of executive privilege for any other material or for any other purpose.” Even though they decided to let Don McGahn, in fact, instructed him to come and cooperate with the Special Counsel, and then, in connection with this report, after much fanfare, made it clear they weren’t going to assert executive privilege. So how many times can you allow information to go forward in the public and then later, when Congress wants to assert its oversight authority, “Hey, sorry, not anymore”?
Anne Milgram: Yeah. I think if this gets litigated they lose on the executive privilege point with McGahn if it relates to what’s included in the public report. The Mueller piece and the Mueller investigation, I think is a little trickier because some of that was done for investigative purposes. It was not made public. But the bottom line is I think they have a real uphill battle. You saw with the Fast and Furious litigation that went on when Attorney General Holder was told to provide information related to ATF, and one of their operations that they had run ultimately was litigated and the court found, in part, that all of the information had already been provided publicly, that there were really no issues that were left that really hadn’t been disclosed. So they ordered that it be turned over. I think that would be similar here.
Anne Milgram: What they are doing, though, and we should be really upfront about this, is that what the administration is doing, time and time again, is forcing Congress to sue. They’re basically saying, “We don’t want to you to have Don McGahn,” and then they’re sort of pushing the ball back to Congress. So they’re saying, “We’re not acknowledging your legitimate authority to do this.” Here, they can say executive privilege. That then gets litigated. Fast and furious took three years to litigate. So they’re playing a game which is it’s really about process and timing as much as it is about substance. I don’t know if you saw the polls about how many Americans have read the report or really know what’s in the report.
Preet Bharara: It’s like four people.
Anne Milgram: Yeah. The reason why the House of Representatives wants to do this and the president doesn’t want them to do it is that four people read the report. So if they have all these hearings and McGahn testifies then, obstructively, 40 people or 400 or 4,000, a lot more people would know about it. It’s the exact reason that the White House wants to stop it. If they can hold it for three years in litigation, they win.
Preet Bharara: The one thing we do know is not going to happen is that most of these witnesses are never going to show up in the Senate because Lindsey Graham is the chairman and he basically said, “I’ve had enough.” Even with respect to Bob Mueller in the Senate it’s not going to happen but for one possibly, and that is to the extent there is some continuing gripe on the part of Mueller that Bill Barr misrepresented in some way in his testimony or in his letters what Bob Mueller thought was true, then Bob Mueller can make that known.
Preet Bharara: Lindsey Graham wrote a letter, specifically to Mueller, saying, basically, “In particular, Attorney General Barr testified that you believe media coverage of your investigation was unfair without the public release of the summaries. Please inform the committee if you would like to provide testimony regarding any misrepresentation by the Attorney General of the substance of that phone call,” which would require Bob Mueller basically to throw down a little bit.
Anne Milgram: Which is not very Bob Mueller-like. Do you think that if Mueller said, “Yeah, I want to show up,” that Graham would essentially give him five minutes just to discuss this specific issue and nothing else?
Preet Bharara: I don’t know.
Anne Milgram: Because it’s a very specific letter.
Preet Bharara: It is.
Anne Milgram: You can come and talk about this one thing. I don’t want to hear anything about the report. I just want to hear about whether you were upset with Bill Barr.
Preet Bharara: I don’t know. You said, earlier, I think completely correctly, that it was a big deal for Bob Mueller to write those two letters. Then we also know he had two conversations. That was four times he said, “Put out my summaries, not your summary,” which shows a level of frustration that Bob Mueller had. Whether that rises to the level of causing what would be huge made to TV showdown, that is not Bob Mueller’s style in any way.
Anne Milgram: Mueller’s not going to do this. But my Mueller not coming it leaves Graham the ability to basically say-
Preet Bharara: Yeah, nothing to see here.
Anne Milgram: “There’s nothing to see.” Exactly. Also, didn’t Graham say he hasn’t read the report. Didn’t he preface his questioning-
Preet Bharara: I think he hasn’t read all of it.
Anne Milgram: … by saying, “I haven’t read all of the report.”
Preet Bharara: He never read all of it. But Bob Mueller may come testify-
Anne Milgram: To the House.
Preet Bharara: To the House. This may change during the course of the day because things move swiftly. There’s a tentative date for Mueller to testify in the House of May 15th.
Anne Milgram: The president has been tweeting about it. The president is not happy about that.
Preet Bharara: But why? I thought he was totally exonerated by this man?
Anne Milgram: Right, exactly. I think it goes very much to the president doesn’t want to have this conversation. My view is Mueller has to testify because Barr has spent so much time speaking for Mueller. We had a great listener question, and one of our listeners, I’m going to find the name so I can give them credit for the excellent question, is from Mark [Milke 00:47:53] saying, “Dear Preet and Anne, Mueller may well be straightforward and forthright as you guys suggest, but I can’t imagine he’d be willing to answer a question essentially to give his personal opinion on whether or not the president had committed obstruction of justice.” I agree with you, Mark Milke, completely. Mueller is not going to go beyond the four corners of his report.
Preet Bharara: So I have two reactions to that. One is I still think I’d like to get a better explanation in plain English of why he made the non-decision. Second, because I can’t articulate it either-
Anne Milgram: I think if he explains it, there will be tea leaves and we’ll be able to understand it better.
Preet Bharara: Yeah. And second, look, it is not a crazy argument. I don’t agree with it, but it’s not crazy. Maybe it’s odd for me to describe arguments as crazy or not crazy. But I think when people watch pundits on television and they’re reading for themselves to assess, on the spectrum, of how ludicrous an argument is. I like to think that we’re pretty straightforward and when an argument is totally nuts, batshit crazy, we will say so, and when it’s a fine argument we’ll say so. Then there are arguments that are not nuts.
Preet Bharara: It’s not nuts for, even though I disagree with it, for Lindsey Graham to say, “Yeah, I don’t need to hear from Mueller because we have a 448-page report in which he spoke at great length, and especially if even someone like you says, ‘Well, he’s probably not going to go outside of what was in the report,’ then what is the point other than spectacle?” I think there is a point.
Anne Milgram: I think there is a point too, and-
Preet Bharara: But it’s not a nutty argument to make.
Anne Milgram: Within the four corners of the report, I think there’s a lot that Mueller could talk about and explain. The area you just touched on, which is why he made the decision not to make the call, that’s an area where I think he would explain. What I don’t think he’s going to do is draw other conclusions from the facts, give facts that aren’t already in the report. He’s not going to go beyond the evidence he’s already provided. There’s also been some reporting and it sort of reignited this conversation that Barr started saying that the investigators, the FBI, was spying on the Trump campaign during the election. The New York Times publicly reported that the FBI had sent an undercover investigator and used a confidential informant at the initial stage when they were trying to understand what George Papadopoulos … what information he had, what information the campaign had about the Russians getting derogatory information on then-presidential candidate Hillary Clinton. What did you make of all that reporting?
Preet Bharara: Look, as we’ve said before, spying is … Bill Barr called it a perfectly good English word. We can talk about that aspect of his testimony where he knows he’s sending signals. He knows he’s feeding into Donald Trump’s oppression persecution complex. He knows he’s giving talking points to him. “Oh, it’s a perfectly good English word and I don’t mean it in any negative way at all and it doesn’t have any negative connotation.” That’s like not true.
Anne Milgram: What is norm-busting is Bill Barr’s use of the English language.
Preet Bharara: It might be.
Anne Milgram: Not the traditional use of the word spying.
Preet Bharara: Look, I don’t know every single fact that relates to the origins of the investigation.
Anne Milgram: Oh, there’s a question about a foreign power trying to influence an American election. Law enforcement officials sent in undercovers to try to figure out was there any truth to the story that had been reported to them through the Australian embassy. Does anything about that feel strange to you?
Preet Bharara: No. When there’s smoke, when there’s crazy amounts of smoke and things that you think are potentially criminal, you investigate. One thing that you do, because it’s hard to get the information otherwise, is you’ll use a source, use a confidential source, confidential informant, a CI, as you and I have used hundreds and hundreds of times. Then, the thing you do, actually, to make the investigation have more integrity and be cleaner and safer, and we did this in mob cases, and we did this is insider trading cases, and we did this in terrorism cases, we did this in the cannibal cop case that I talk about in the book, as soon as practicable, you try to substitute in an undercover agent for a CI. Because a CI is often someone who’s paid. They’re a private citizen. They’re not trained, even though they’re good CIs.
Preet Bharara: You want to introduce some stability to the operation, the undercover operation. That person makes reports of everything. That person is going to be better able to make sure that the recording are done properly. That person’s going to be in a better position, because he or she is law enforcement, to testify at a trial. It actually is more protective of the investigation, also more protective of the target, and also for the safety of everyone, to as soon as possible, have an undercover in there as opposed to some other cooperating witness or confidential informant. It’s actually good and normal.
Anne Milgram: In my view, also, a completely traditional way that you would approach an investigation like this. You see it used in, you just mentioned mob cases, public corruption cases. I mean, it’s a pretty standard way, and actually pretty limited way, of trying to get information and understand is there actually a complaint that’s valid there or an issue that’s valid there. One other thing, every time he says spying … I finally realized one reason that it bothers me so much, because if there was any spying here it was the Russians spying on the Clinton campaign by hacking her emails. This sort of impression of the spying is like one campaign spying on another, the federal government spying on a campaign. There’s something about … Campaigns are allowed to run without interference. But really, there is spying here and the spying was the Russians spying and hacking the Clinton emails that the Trump campaign then wanted to take advantage of or benefit from.
Preet Bharara: We have so many things to talk about.
Anne Milgram: Yeah, too much.
Preet Bharara: We have a couple of other things, maybe we can touch on very quickly.
Anne Milgram: Let’s call this the love section.
Preet Bharara: The love section.
Anne Milgram: Let’s jazz it up a little. What did you think of Rod Rosenstein’s love letter to Donald Trump, aka, his resignation letter?
Preet Bharara: It was ludicrous in some ways, just like his speech to the Armenian Bar Association, which we talked about was ludicrous, this suggestion that Donald Trump is the paragon of the rule of law and principle-based decision-making and not whim. I guess it’s just a way of finishing out his tenure on good terms with the person who, based on Rod Rosenstein’s sometimes obsequiousness, didn’t fire him by tweet. He’s probably reveling in the fact that he got to leave on his own terms. But I think the particular line that you’re pointing to is … You have it in front of you.
Anne Milgram: I do. “I am grateful to you for the opportunity to serve, for the courtesy and-
Preet Bharara: You can make it through. You can make it-
Anne Milgram: [inaudible 00:54:15].
Preet Bharara: Don’t be snitty. This is how difficult it is, for a seasoned prosecutor and podcaster, Anne Milgram, Esquire, cannot read a line from the resignation … the formal, publicly released resignation letter by the Deputy Attorney General of the United States. She cannot read one of the lines without cracking up.
Anne Milgram: I can’t look at you. “I am grateful to you for the opportunity to serve, for the courtesy and humor you ….”
Preet Bharara: You’ve never laughed this hard at any joke I’ve ever told you, and I’ve known you for 15 years.
Anne Milgram: That’s not true. You are very funny. “I am grateful to you for the opportunity to serve, for the courtesy and humor you often display in our personal conversations, and for the goals you set in your inaugural address: patriotism, unity, safety, education, and prosperity, because a nation exists to serve its citizens.” It’s really the courtesy and humor, the intimate part of that line that gets. It kills me.
Preet Bharara: There was this 1.5-hour call between President Trump and his supervisor, Vladimir Putin. Okay, that’s a joke [crosstalk 00:55:26].
Anne Milgram: They did not talk about … in which they did not talk about the Russian hacking of the election or the 2020 election.
Preet Bharara: Look, I may have missed this. The principal finding that is incontrovertible from the Mueller report is that the Russians interfered in our election in 2016, intending to favor Donald Trump. Everyone agrees that that’s true. I still have not heard, and again, maybe I missed it, but I still have not heard Donald Trump agree with that conclusion. Instead, he’s having long calls with Vladimir Putin, not even bringing this up.
Anne Milgram: I think it’s both the central conclusion of the Mueller investigation. It’s also the most important thing, which we should be worried about, which is we don’t want foreign governments interfering with our election. The other thing is, Preet, do you talk to anyone for an hour and a half? That is a long telephone call.
Preet Bharara: Well, especially when you … I prefer to text.
Anne Milgram: Yeah.
Preet Bharara: Who calls?
Anne Milgram: Yeah.
Preet Bharara: People who call me-
Anne Milgram: Our texts are probably 15 seconds each. I was trying to think, when was the last time I had an hour and a half phone call? I mean, sometimes conference calls for work can get a little long and unwieldy, but that’s a long conversation.
Preet Bharara: That’s a long … right.
Anne Milgram: Particularly when you don’t bring up the one thing that matters.
Preet Bharara: Probably one of the reasons that that call went so long was that the leader of Russia, our adversary and foe in many ways, was probably enjoying the courtesy and humor that President Trump often displays in their personal conversations. Right? I think that’s probably it. That’s [crosstalk 00:56:52].
Anne Milgram: Oh, thank you, Rod Rosenstein and Preet Bharara for humor this week.
Preet Bharara: All right. We’ll be back next week.
Anne Milgram: Please send us your questions and we’ll-
Preet Bharara: We’ll try to answer them.
Anne Milgram: I don’t know what happened. We’ll definitely answer them.
Preet Bharara: This is the CAFE Insider podcast. Your hosts are Preet Bharara and Anne Milgram. The executive producer is Tamara Sepper. The senior producer is Aaron Dalton, and the CAFE team is Julia Doyle, Calvin Lord, Vinay Basti, and Geoff Isenman. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.