Preet Bharara: Hey listeners. So it’s currently 1:30 P.M. in LA. It’s raining. And I’m here for my live show with Kumail Nanjian tonight. And I woke up this morning, there’s major news as all of you. Michael Cohen, former personal lawyer to Donald Trump has pled guilty a second time. This time it’s in Mueller’s Russia investigation. So essentially, Cohen admitted that he lied to Congress about aspects of negotiations over a Trump Tower project in Moscow. He initially said that the Trump Tower project was done and finished and dead by January of 2016, which was the election year. And as he made clear in his police statements today, those negotiations continued until at least June of 2016, deep into the primary season. And when it was clear that Donald Trump was the presumptive nominee for the Republican Party. So we have a lot to talk about. I’m joined by Anne Milgram, who’s in New York, and is here to help us make sense of all of this. Anne, how are you?
Anne Milgram: I’m good. How you doing?
Preet Bharara: It’s raining here. Is it dry there?
Anne Milgram: It’s cold here. I’m sitting in your chair. It feels very strange.
Preet Bharara: It’s like debating an empty chair across from you.
Anne Milgram: Exactly.
Preet Bharara: There’s a bunch of things that Bob Mueller’s office has gotten Michael Cohen to plead guilty to, relating to when the project in Moscow ended, whether or not he had conversations about having the president go and visit Moscow. It’s all kind of interesting stuff right off the bat, and major takeaway for you.
Anne Milgram: God. There’s so much for us to talk about here. The first major takeaway is this was done by Mueller’s team. The other case was done by the Southern District. It’s very clear that in my view, and I’d love to get your input on this, but Mueller’s team held this. I mean, this isn’t new news, that the letter went to Congress in August of 2017. The testimony was in September of 2017. So Mueller’s team has had this for a considerable amount of time. But what they were obviously waiting for was the president’s written answers on these questions to see what the president would say.
Anne Milgram: If Michael Cohen had pled guilty to this two weeks ago before the president had put in his answers, the president could have obviously tailored his answers around this. And so to me, the timing speaks volumes. We don’t know. The president’s lawyers have said, I think just recently, that his answers, the president’s answers are consistent with what Cohen has said. I’m suspicious of that …
Preet Bharara: Let’s talk about that.
Anne Milgram: Yeah. What do you think?
Preet Bharara: Let’s unpack that for a second because it’s very confusing and there’s new information has come out every few minutes today, even as we’re looking at the stories. So, on the one hand, I totally agree that the Mueller team clearly was waiting to get the written answers from Trump. And it’s been reported that one of the questions Trump was asked was about this Trump Tower project in Moscow and presumably about the timing of it and how late the negotiations went, and how involved the president was. And then Michael Cohen pleads guilty today, and says that he lied about these things to help the political standing of the president, who was a candidate at the time going into the election.
Preet Bharara: And then Trump comes out and says this morning Michael Cohen is a liar. And Michael Cohen is weak, which seems to suggest that Donald Trump’s view of these facts is different from the way that Michael Cohen stated them today in court and pled guilty. And then as you point out, some hours after that the lawyers for Donald Trump have now engaged in yet another seeming contradiction to say that the written answers are consistent with what Michael Cohen said. So is Michael Cohen lying? Is he not lying? Is the president …
Anne Milgram: Is everyone lying?
Preet Bharara: … Completely insane? I don’t know quite what to understand and believe.
Anne Milgram: Are Trump’s lawyers lying? Yeah. I mean, I feel the same way. It’s almost impossible to decode. The only people who know for sure, right, are Mueller’s team who are sitting there. They’ve got all the information we now have publicly on Michael Cohen, but they’ve also got Trump’s answers. And the other … I do find that to be fascinating, and it’s not the first time we’ve seen the president both lie … We’ve seen that the president called someone a liar. And at the same time said something that doesn’t holder or his lawyer say something that would be incredibly inconsistent.
Anne Milgram: What’s also interesting about this, just to go back a little bit to the substance is the Russia connection here. And what do you make of Cohen saying, “I did this because I was trying to limit … When I lie about this I was trying to limit the Russia inquiry.” It’s not clear from anything that Cohen said that he was talking to Trump or his team at the time that Cohen submitted these answers and testified, but he lied to Congress. I mean, he’s a lawyer and he literally under oath lied to the United States Congress. And so his motivation is essentially to obstruct and stop the Russia inquiry.
Preet Bharara: Yes. I have two things to say. One is, we should look at the actual statement he made in court today. And I happen to have it front of me. He said, “I made these misstatements,” these lies to Congress. He said, “I made these misstatements to be consistent with individual ones.” That’s the president, “To be consistent with the president’s political messaging and out of loyalty to the president.” Individual one. And if you look at the actual, what’s called a criminal information it was filed today, the prosecutors made clear that the motivation for Cohen was to try to make it seem that the negotiation about this Moscow project was concluded before … Because it seemed important politically for them, was concluded before the first in the first caucus in Iowa.
Preet Bharara: And understanding that it would look terrible as it looks today for now, an active candidate for president of the United States who then looked like he was going to become the actual nominee of a major party is negotiating for personal gain, a project in another country. And not just with business people. I mean, Cohen makes clear he was dealing with officials from the Kremlin.
Anne Milgram: High-level people.
Preet Bharara: High-level officials at the Kremlin for a deal in a country that’s run by somebody who was interfering with our election as they were engaging these negotiations, and who was a geopolitical foe an adversary of America. So it was all on the up and up as Donald Trump says now when he goes on television saying, “Look, I was doing a business deal, and I didn’t end up doing the deal, and I maybe wouldn’t have won. And if I hadn’t won, that would’ve been fine.” It looks terrible, separate apart from whether or not there was criminal conduct. So the question is how do you base a future criminal case on Michael Cohen, and what the implications for his guilty plea today are for other people including the president?
Preet Bharara: And Donald Trump says, as I’ve said many times, there’s some irony here. He hires people who lie. They’re clearly liars. They get caught in lies. And then when they turn against the president, he can rightly say, “Well, those guys are liars.” He’s sort of right about that, so why does the Mueller team … How can they possibly feel comfortable with someone like Cohen? And you know they care a lot about credibility and truthfulness because the other thing that happened in the past week is they tried to have a cooperation agreement with Paul Manafort. And Paul Manafort, they said, lied in these debriefing sessions. And so they ripped up the cooperation agreement, and he’s going to have the full weight of sentencing upon him in a short period of time in the same week, they’ve decided to enter into a plea agreement with somebody about whom there are equal questions about veracity and truthfulness.
Preet Bharara: And so Mike my sense is that if at the same time they’re ripping up someone’s cooperation agreement, and they’re embracing a different person, Michael Cohen, they have a lot of good reason to believe they can corroborate the things that Michael Cohen is saying.
Anne Milgram: I agree completely. And one of the things that’s really interesting is that it’s clear that they’re not just relying, in my view, on Cohen’s representation of, “I had a lot of communications.” They’re also they’ve corroborated that and it could be through emails, it could be through other witnesses. They reference individual number two individual one as is Trump in the information. Individual two is a guy named Felix say Felix Sater, who’s a Russian born developer, who is part of the Moscow project, who’s been publicly reported to be cooperating with Mueller. So there’s no way, and I think you and I would probably agree strongly in this, there’s no way they would … That the Mueller team would just hang their hat on Michael Cohen.
Anne Milgram: But my sense, and this is also true from things that we’ve seen in last week with Jerome Corsi releasing emails, my sense is that the Mueller team has a great deal of information on all these things, and that we …
Preet Bharara: A ton. I agree.
Anne Milgram: And that’s what we’re starting to see. And so they’re willing to take the risk on someone like Cohen and cooperate him because they know that he’s going to say, “I talked to the president three times,” and they’re going to be able to corroborate that he had those conversations and that makes a huge difference when it comes to someone’s credibility. And look, he’ll have to be forthright, and he was today, “I lied. Here’s why I lied.” But it’s clear that they’re willing to sort of bank on that. What do you make of all the Trump visit the Russia stuff? I mean I found also really interesting this piece in the Cohen in paperwork, saying, this question about when should trump go. That he had a conversation about Trump visiting Russia during the presidential campaign to try to get this Moscow deal done.
Preet Bharara: There’s a particular discussion in the paperwork in which Cohen essentially suggests, “Well, he can go before the convention, and Trump can go after the convention,” which is a suggestion that you would have a major party nominee because they know that the political situation between that country and ours to go negotiate for personal gain a private real estate or hotel project is kind of insane.
Anne Milgram: Yeah. As the …
Preet Bharara: And separate apart from legality.
Anne Milgram: Yeah. As one of the two people who could be the leader of the United States of America. And I just sort of look at this and I think the president ran on draining the swamp and it literally looks like he wanted to drain the swamp to build an ocean of corruption, right. I mean, everything about this … I mean, and everyone sort of affiliated with. It’s just impossible to think … It’s almost difficult to think that this could have happened. What do you make also? And maybe it’s worth just explaining this a little bit. One of Trump’s defenses I thought today was that, “I’m not guilty because we didn’t do the deal.” He kept saying, “We didn’t do a deal. We didn’t do a deal.” And then at one point, he says, “It wouldn’t matter if I did.” But what do you what do you make of that sort of line of defense?
Preet Bharara: Yeah, it seems like Trump obviously doesn’t have legal training or training in truth-telling, but his lawyer should know better. He doesn’t believe there’s such a thing as attempt or conspiracy. And it seems to believe, in a different parallel situation, that if you plotted a robbery, did everything in connection with doing the robbery, cased out the joint, hired the people, came up to the front door of the bank, went inside started to tell the teller to hand over money. He’s like, “You know what? I feel the heat now, and I think I see a cop coming.” And he leaves. He would say, “Well, I didn’t do the robbery. And even if I did do the robbery, it’s my money in the bank. I had money in the bank anyway. And just because I was taking other people’s money, money is refundable.”
Preet Bharara: I mean, I don’t know what kind of arguments he would make if he were being accused of bank robbery. But it doesn’t hold any water at all for legal … Maybe there are portions of his base who are prepared to believe anything he says and any explanation he gives. But we’re not operating in a political system in the court of public opinion exclusively. You have a prosecutor, you have a judge. You have a grand jury, and you have instrumentalities which are called criminal information indictments and complaints that can make someone’s life very miserable. But that leads me to the next point to discuss. What does this mean for Trump?
Preet Bharara: Now, on the one hand, it seems that the first category of issue for Trump is whether or not he has now lied to the Mueller team. We haven’t seen his written answers to Mueller questions. We just have representations being made by the lawyers, which I don’t fully trust. So it may still be true that Trump answered these questions about the Moscow project in a way that is contradicted by Cohen’s later more recent plea today. If that is so, though that’s a problem because it indicates among other things that he was prepared to lie to the special counsel.
Preet Bharara: The one thing that I think is missing and is in Trump’s favor I guess, is that even though Michael Cohen said he was making these statements and misleading the Congress, for the benefit of the president, for his political standing, right. That all this project work was done before the first primary. Even though he says he was doing it for that reason, he does not say that he was told to lie, or he was told to mislead Congress by the president. And the reason why I think that’s significant is in the last guilty plea he took in the Southern District of New York, when he said he made the payment to Stormy Daniels.
Preet Bharara: He said very specifically and very dramatically that he had made the payment at the instruction of the president of the United States. So as we say in the law business about Congress sometimes, when Michael Cohen wants to dig the knife into the back, he knows how to do it. And he didn’t quite do it to the same degree here. What do you make of that?
Anne Milgram: Yeah, I mean I noticed that language too and I thought it was very interesting because he basically says, “Look, I was watching the president’s public statements and I was watching what was happening with the Russia inquiry. And so out of loyalty and knowing what the president was saying …” and it’s worth stopping just for a second to say that the president was sort of saying, “Look, the deal didn’t happen in Moscow.” The president’s public statements I don’t think he ever said, “Yes, I had meetings and conversations till June of 2016.
Anne Milgram: I mean, he minimized it and did make it seem I think like it was done before the primary season started on February 1st of 2016. And so what Cohen I think is saying is, “Look, I was reading that. I was taking that as signals to me whether it was intended from Trump or anybody else. And so I lied because of it.” That could be true. It’s hard for me to believe that there wasn’t some backchannel or some conversation between Cohen and folks on Trump’s team. But he didn’t say that and I agree with you. He certainly didn’t have any hesitation to say what Trump had done when he took the plea in the Southern District.
Anne Milgram: The one thing I would sort of throw out there is that Michael Cohen is a lawyer, and he lied to Congress. And there’s just a certain amount of … I mean, it shows both I think the fear of the Russia inquiry, which was obviously a lot more powerful than I think we’ve even realized. But it also shows a level of arrogance that it was doubling down on lies and thinking that you can walk into Congress and lie to their face and get away with it. And so, it may be that the president is not in this piece, that he didn’t direct or motivate Michael Cohen specifically to tell these lies. But there is a lot here that I think we want to know more about.
Preet Bharara: Look, I think the significance of this charge of lying not to Mueller, not to law enforcement agents, not FBI agents, but to Congress, specifically a committee that was charged with looking into these matters, is significant, A, because it’s outside of the law enforcement universe. So maybe I’m overstating the significance of this but one issue that’s going to come up in the future is impeachment. And the more evidence that there is, that not only did Michael Cohen lie directly to one of the chambers of Congress, but that in some ways Donald Trump either knew that he did, encouraged him to do so and even most minimally drew some benefit, political benefit from those lies. You would think with rational reasonable, people who care about the institution about the balance of power and the separation of power and the abuse of power that that’s going to mean something both in the Lower House, both in the House and in the Senate when they think about how serious Donald Trump’s conduct has been, right.
Preet Bharara: Maybe I’m overstating it because you’ve got still a majority of people in the Senate who are Republican and in a lot of people think that even if there’s impeachment in the house you’ll never get a conviction in the Senate, but it just cannot be lost on people and their constituents, that you now have conduct that involved perpetrating something of a fraud on the very body that is going to decide whether or not Donald Trump faces consequences.
Anne Milgram: Yes, and no one likes to have a fraud perpetrated on them. I think it’s a good point. I also think it does send a message. I mean, I think we’ll see a lot more congressional investigations of the Trump administration starting in January when the House flips. And so you now see somebody being charged and he’ll be sentenced under criminal law for lying to Congress. It also sends a pretty powerful message about, as Congress does our investigations don’t lie to us. What do you think the president of the United States … I’m gonna ask you a tough question which is, you’re the president of United right now … It is very unfair. How do you feel about Matt Whitaker?
Preet Bharara: So I literally, Tweeted a few minutes ago. How do you think the president feels about Matt Whitaker at this moment? And that’s based on … Again, this is rapidly changing reporting and so hopefully, it doesn’t change by the time people are listening to this. But I saw a report. It’s what you would expect that Matt Whitaker was given advance notice of this cone guilty plea. And presumably, if that’s true, Matt Whitaker could have said, “Wait,” or, “I want to alter the documents,” and maybe he did that or, “I don’t think this would go forward because it’s far afield,” or some other such thing. So this idea that Matt Whitaker could spare Donald Trump some political and legal damage by putting the kibosh on something like this, clearly at least in this instance he didn’t. Because as institutions go even if you have somebody and I’m not saying that Matt Whitaker is corrupt. But even if you have someone who wants to go out of his way to protect the president, it becomes very difficult in real life to do it once the train has left the station. And they’ve had all this information for a while and they probably had a draft plea agreement for a while because they’ve spent hours and hours and hours with Michael Cohen.
Preet Bharara: At a very minimum, I think Donald Trump is probably very upset because he does think everything is transactional and he does think that people do things out of loyalty to him and he had lots of reasons to believe that Matt Whitaker was going to be in his corner because of the statements he made on TV based on also, the things that he wrote in op-eds that he thought the Mueller investigation was far afield and it should be starved of resources. But he let this one go. And obviously, Whitaker had the ability presumably to stymie what was going on with the Cohen plea because as we understand it he is the supervisor of this … By the way, I’ve seen some other reporting. I don’t know if it’s credible or not. Someone has suggested that Rosenstein remains in control of the Mueller investigation. And one reason I don’t dismiss that completely out of hand, although I don’t know, is that there has still been no response from the Justice Department on the issue of whether or not Matt Whitaker has consulted with ethics officials about whether he has to recuse himself and what advice if any ethics officials have given him.
Anne Milgram: That’s right.
Preet Bharara: I think it’s a little murky. I think it’s likely the case that Whitaker is in charge. He approved this, but I don’t think it’s 1,000% clear.
Anne Milgram: I agree completely. I think the president’s probably furious about this. I also think we have to be careful of reading too much Whitaker not stopping this because my instinct is the same as yours. There will have been a draft information, a draft plea they would like walked all that into Whitaker if he’s in charge and it would be so far down the road. And there’s clearly evidence, there’s the written statement, the letter he gave as well as the testimony he gave plus him now saying that was a lie. That’s a crime. There’s not wiggle room in the sense that there could be in some other instances. So I agree with you. I think we can’t generalize and say Whitaker will do the right thing in all the instances, but it’s definitely a sign that at least if he is in charge on this one he did the right thing.
Preet Bharara: Yeah, but look, there’s some bells that are harder to unring than others. People forget that even if you have somebody at the top of an organization, whether it’s a US Attorney, an acting attorney, general or anyone else, or even the editor and chief of a newspaper, if the underlings have gone forward and have done a credible investigation and are pretty far along and everything they’re saying is reasonable and within their purview, what are you gonna do? Are you going to shut it down on no basis whatsoever? The whole world is going to know about it the next day, and there’ll be hell to pay. And if you’re a lawyer in good standing you have to worry about that. And it doesn’t always work out that way. What do you think about the pardon situation?
Anne Milgram: On Manafort?
Preet Bharara: Well, Manafort …
Anne Milgram: I don’t think I think Cohen’s going to be a line for a pardon.
Preet Bharara: Well, and yes I agree with that because what did Trump say very specifically today?
Anne Milgram: He’s weak. He’s a liar.
Preet Bharara: He’s weak. Unlike some other people, we have seen.
Anne Milgram: Yeah. Exactly. That was not lost on me, and I’m sure it wasn’t lost on most people where it felt like a shout out to me to Manafort basically saying, “Stay strong.” I still think it’s a possibility that Manafort gets a pardon. To me in many ways, we don’t know exactly what the lies are that he told to Mueller’s team, but I think we’ll know more shortly. But it’s very clear that he went through that first trial in the Eastern District. He did not go through the second trial in DC, he pled guilty.
Anne Milgram: And to me it if he were playing for a pardon the whole time I think he would have maybe pushed forward with that second trial though it was much more damaging to the president. It is possible he’s playing for a pardon, but it’s also possible that he like these other guys is just incredibly arrogant and thought he could get over on Mueller’s team and I think a bunch of folks have made this critical miscalculation of thinking that Mueller doesn’t know as much as he does. And what we keep seeing is that Mueller’s got a lot of evidence and a lot of information that he’s able to pull out and show when people aren’t being truthful.
Anne Milgram: And so I think a pardon is possible. When Trump’s walking out of office, let’s say he’s walking out to 2020 or let’s say he’s walking out and in 2024, he could drop a pardon for anybody, right. We’ve seen presidents do this from both parties last day in the office. And Bill Clinton famously pardoned Marc Rich. There are countless examples on both sides of the aisle of presidents dong sort of final day pardons. So that’s possible, and I think Manafort falls in that potential category, but the politics of doing a pardon sooner than that, I think there are problematic for the president. What do you think?
Preet Bharara: Well, I think these categories of malfeasance you can associate with a pardon. So the president has wide authority to pardon. Bill Clinton did some terrible ones. Donald Trump has done at least one terrible one, if not more, and can do more than that even. But if you just think that someone got a bad rap and you try to absolve them in some way by a pardon, that’s one thing. It doesn’t implicate you in criminal conduct. But the other two categories are, if you decide to pardon someone on the basis that that person will then not testify against you, then your people make reasonable arguments that you’re trying to obstruct something. And you can make an argument that president pardons someone like Manafort as he’s walking out the door, he hasn’t gotten the benefit of stopping that person because years have gone by.
Preet Bharara: But that leads me to the second category which is why I think this is still murky. If it’s the case that you made a promise in advance that if you go south or not cooperate and then eventually later at some point maybe when it’s not so obvious I will pardon you. Well, then that’s potentially an abuse of power as well. I do think that that category of thing is really hard to pull off when there are lawyers involved, how you have those communications. It is also belied as you said by the fact that Manafort did fight, didn’t go ahead, looked like he was trying to cooperate briefly. And the idea that the way he decided in exchange for a potential pardon offer in recent times to lie and to be sort of humiliated in a court document and face tons more time in prison just doesn’t seem plausible to me.
Anne Milgram: You make a great point too that in all the other examples I can think of as I think now about presidential pardons, I can’t think of any in which the president was an actual target of the investigation and the person being pardoned was a witness against the president or potential witness against the president. And so I think you’re right. But we shall see.
Preet Bharara: So we’ve got to run. I’ve got a show to do, and you have things to do, but what I worry about is Donald Trump’s anger. And I have said many times that he is constrained in some ways. He and McGahn, his White House counsel which we talked about a lot On Stay Tuned this week …
Anne Milgram: Who’s no longer there.
Preet Bharara: He’s no longer there. He was constrained in part by Rod Rosenstein who is in charge of the Russian investigation because Jeff Sessions recused himself. Jeff Sessions is no longer there. Rod Rosenstein is likely no longer in charge. And when he gets angry and it looks like there’s a possibility that other members of the Trump family, if not Trump himself, may be implicated in the false statements that Michael Cohen made to Congress, right?
Anne Milgram: Yes.
Preet Bharara: Because members of his family I think were involved in the Trump Tower deal, when Trump gets angry he’s capable of doing anything. And I worry a lot about that.
Anne Milgram: Well, I think just to add to that, I think your worries are well-placed. This week has been, and we’ll talk about this more on Monday, this week has been a terrible week for the president. And I think the heat is on, and it is likely we’re going to see a lot more. And so, I would agree with you that I think the president … This is as much on the ropes, I think, as we’ve seen it during the course of this investigation and so I do wonder what comes next.
Preet Bharara: And the last thing I want to give thanks for, I was just thinking about it today, and it’s brought into sharper relief based on the events of the last week and what we might expect in the next few days when the president gets more and more boxed in a corner is, now imagine all this was going on, and acting AG Whitaker was in charge, and the folks are circling around Donald Trump and his associates, not just his lawyer. And you did not have Democratic chairman coming in, in oversight roles in four weeks. Just imagine how different the outlook would be.
Anne Milgram: It makes a big difference to know that there’ll be some oversight. I agree with you.
Preet Bharara: I think it has some curbing effect, not as much as you might want but professionals like Matt Whitaker and others know that they are going to be testifying about the activities they engage in, the decisions they make in these weeks. It’s a very important time and it’s all going to come out and the documents are going to end up being subpoenaed and people going to be put under oath and the decisions that people make right now in the Justice Department, in the White House, among Donald Trump’s associates and family members are really fateful for them because there’s no hiding.
Anne Milgram: And everything will be scrutinized. You’re right, everything will be scrutinized and will come out eventually.
Preet Bharara: I’m glad we had time to tape the special episode, Anne. I’ll see you live and in person on Monday for our regular weekly insider pot.
Anne Milgram: Sounds great. See you then.
Speaker 3: 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 Cafe is Tamara Sepper and the cafe team is Julia Doyle, Calvin Lord, And Vinay Basti and Geoff. Our music is by Andrew Dust. Thank you for being a part of The Cafe insider community.