Preet Bharara: From Café, this is Café Insider. I’m Preet Bharara.
Anne Milgram: And I’m Anne Milgram.
Preet Bharara: Hey Anne, how are you?
Anne Milgram: Hey, how are you doing? How was LA?
Preet Bharara: LA was great. We had a great show. Should be in the regular stay-tune feed in a few days. So we did this emergency special Café Insider podcast last Thursday afternoon. I was in my hotel room in California and you were in the studio.
Anne Milgram: I was sitting here in the studio.
Preet Bharara: I’m back in the studio with you. And even though its only been three days, there’s still a lot of stuff to cover and for us to talk about. I suppose we should talk about the Cohen sentencing and what his lawyers have said in court. There was a dangling of a pardon to Michael Cohen. Some issues going on with Paul Manafort. There’s the whole back and forth between Jim Comey and House Republicans and whether or not he should testify in the lame-duck session.
Let’s maybe talk about Michael Cohen and sentencing first. So first to frame it, Michael Cohen is scheduled to be sentenced on-
Anne Milgram: December 12th.
Preet Bharara: December 12th, which is only a week and a half away. We’re taping this on December 3rd. And his lawyers, namely Guy Petrillo and Amy Lester have filed a lengthy sentencing memorandum that does a bunch of things. There’s a lot material in it. By way of background, people may have forgotten, I know Guy Petrillo very well. I used to work for him in private practice. He’s a former Chief of Appeals in the Southern District of New York. About as smart and ethical and likable lawyer as you’ll ever meet. Amy Lester also used to work for me, and now they’re in private practice together.
Anne Milgram: And they’re Cohen’s second round of lawyers? Is that right, he switched?
Preet Bharara: I think he had other [crosstalk 00:01:29]
Anne Milgram: Second or third round?
Preet Bharara: Lawyers as well. I mean, he also had Lanny Davis, who, as far as I can tell, plays more of a role on television.
Anne Milgram: And had Todd Harrison to start [crosstalk 00:01:37] I think.
Preet Bharara: Oh yeah, that’s right. So among other things, the sentencing submission to which the government has not yet responded, the main goal of it is in all sentencing submissions, is to cast the client in a good light so that [crosstalk 00:01:51]
Anne Milgram: And to say, give him as little time as possible.
Preet Bharara: Give him as little time as possible. But there are a few things that were clarified in the sentencing submission. People I guess didn’t understand why it is that Cohen, with the Southern District of New York, did not have a formal cooperation agreement. And what they say in the sentencing submission-
Anne Milgram: I still have a question about that for you.
Preet Bharara: Yeah, well, it’s still not a 100% clear, but they try to explain it a little bit by saying, “Look, in the ordinary scenario, when you have a cooperation agreement, it can delay your sentencing.”
Anne Milgram: Which is true. It delays your sentencing because you cooperate and the government may ask you to testify in a trial, and it takes a long time.
Preet Bharara: Correct. And it keeps the hammer over you, because once you get sentenced, and you get time served, or you get something less than something severe, the theory is that a defendant might decide, well I don’t really have to cooperate that much, I don’t have to be that full in-
Anne Milgram: It’s also not great if you’re trying a case and the cooperator’s already been sentenced. It’s a lot better to have a cooperator testify, where when questioned about what benefit they’re getting from the government, the cooperator says, hopefully I’ll get a benefit if I’m thorough in my cooperation. But the government at that point, it’s not like somebody’s facing a five-year sentence and gets a year. And then is testifying and the defense lawyer can go crazy against that cooperator saying, you got this incredible benefit.
Preet Bharara: Right, because they haven’t gotten the benefit of the deal yet.
Anne Milgram: Exactly.
Preet Bharara: And further to that, at trial, when a cooperating witness has not yet been sentenced, they get to emphasize to the jury that the cooperating witness is going to be sentenced not by the prosecutors, but by the judge.
Anne Milgram: But by the judge. And that they must tell the truth in order to get the benefit.
Preet Bharara: So in this case, Cohen’s lawyers have said that the reason that he didn’t want to have a formal cooperation agreement was that he wants to proceed right to sentencing, because he wants to turn his life around. Because he’s made his decision to change everything and transform himself. And rather than have a delay of months and years, he wants to get his life on track, pay his dues, and go on with life.
Anne Milgram: So I have a bunch of questions for you about this, because I read it, and look, I think they’re great lawyers, they did a tremendous job in the sentencing memo. But that one to me, I still don’t totally buy it. And I’ve got a few questions for you. First of all, did you ever do that in the Southern District? Is that a common practice?
Preet Bharara: No, not really. I mean look, again, that’s the defense’s characterization. There may be other reasons why the government didn’t want to sign a formal cooperation agreement. We’ll learn a lot more about that when the prosecutors put in their submission in response.
Anne Milgram: What do you make of the fact that it says in the sentencing memo, he’s met with a special counsel’s office seven times? And oh by the way, he’s also met with the Southern District twice, related to an ongoing investigation? So it looks like he’s cooperated a lot more on Mueller’s stuff, than he has on Southern District. So maybe they didn’t want to cooperate him, is that possible?
Preet Bharara: Yeah, because on the Epstein and Weinstein side, it doesn’t look like there was as much. But the other thing that goes on in this memorandum is the setting forth of all the different ways that Michael Cohen was cooperative. Which sends a message, hopefully in their view, to the judge, but also a little bit to the public as to how much stuff he had to say. Because he lists not only the Southern District prosecutors, not only the special counsel’s office, but also the New York Attorney General’s office, and the New York Department of Taxation and Finance.
Anne Milgram: Which by the way, the federal judge and the prosecutors don’t have to give him credit for, but I think the important thing about his stay-cooperation is that, it’s showing he’s cooperating with everyone who asks him, essentially. But it’s really not binding on the federal court. And the federal judge, usually a federal prosecutor makes an agreement for cooperation. It says we want you to cooperate in all pending federal prosecutions, but it is, like you said, it’s just an indication he literally … The minute he walked through that cooperation door, he’s never looked back, and he’s been willing to sit with everyone. And I think that’s the point of the memo.
Preet Bharara: Yeah, and part of the point of the memo, and like all memos of this nature, is to show that a guy who has committed crimes, and who in some ways might be considered not very savory-
Anne Milgram: Yes, that’s an understatement.
Preet Bharara: Who’s a liar and a fixer, and somewhat arrogant, that he’s contrite, and he bears responsibility, and has transformed himself.
Let me just read something from this memorandum, a version of which you see a lot. But this I thought was put especially well by Guy Petrillo and company. He basically says, our client, Michael, has done an about-face and that this reflects, “a decision to cooperate and take full responsibility.” And further, it “reflects his personal resolve to repoint his internal compass true north, toward a productive, ethical, and thoroughly law-abiding life.”
Anne Milgram: Yep, so saying he’s a good guy. He went wrong and now he wants to come back.
Preet Bharara: Yeah 52 years. And now he’s all right and good, which is important I think, for them to convey to the court. Which is why they lay out all the ways in which he’s cooperating. And even more than that, which is something I don’t see as often, there’s a lot of time spent talking about how courageous a person Michael Cohen is.
Anne Milgram: Yes, I noticed that, it’s unusual. [crosstalk 00:06:42] Yes, and talking about how he’s literally being criticized by the President of the United States, the leader of this country on a daily basis, and how difficult it must be, or has been for him to weather this storm. It’s really interesting to me, first of all, you don’t always see people addressed by their first name in sentencing memos, so you just read a quote with “Michael” in it. Usually, people would say, “Mr. Cohen,” and so, there’s a personal level to this where they’re trying to humanize him.
I think also, there was a lot about Trump in there. And I was a little bit surprised by it. And so, to me, I could have seen putting in a sentence or two saying, look, this is not a normal case, which they do say, and I think is worth saying. For a whole bunch of reasons this is unusual, but they have like a paragraph in there basically, saying, the President every day, and then they quote all these places where the President has called Cohen all these nasty things in the public media.
Preet Bharara: And attack the investigation. It also maybe subtle, a subtle psychology to show that Michael Cohen is a little bit in the same position as the prosecutors, especially the special counsel, even though this is not a special counsel sentencing. That the President attacks them, the President attacks Michael Cohen, and they’re sort of in an alliance now, against this beast of a man who doesn’t have appreciation for the rule of law, or etiquette.
Anne Milgram: Yeah, one of the other things I noticed about the sentencing memo is that Cohen really walks through sort of what he did. He talks about making the payments to Karen McDougal, to Stormy Daniels, and he describes the way he and Trump had worked it out so that the payment to Stormy Daniels in particular, was made by Cohen and that Trump would pay him back by making it look like he was paying legal fees. I was really struck by just the level of deception and lies built into that initial agreement. To me, that’s always consciousness of guilt, and knowing that you’re doing something wrong on both Cohen’s part and the President’s part. There was a lot of deception built in to the explanation of Cohen’s conduct and Trump’s.
Preet Bharara: To what degree to you think quality of lawyering matters in these kinds of things? I mean, people see the briefs, and people see arguments in court. And that’s often how people judge the quality of the lawyers, or how they defend things on television, which has been a lot of this. But so much of this, especially when you’re talking about a high-profile case, with a volatile client, which I imagine that Michael Cohen at least was, if he’s not anymore, happens behind the scenes.
Anne Milgram: So, it think we should talk about lawyering in general because I don’t think there’s anyone in America who I think has a more volatile, or probably terrible client for a lawyer, than Donald Trump. And so, if we think about the lawyering in this case, just for everyone, not just Cohen, but also Manafort, for Trump, there’s been some pretty, I would argue, poor lawyering across the board. And some of the question is, is it the clients who want bombastic people to represent them, or who don’t actually, who aren’t necessarily going for the people who you and I would think are going to be smart, fair, forthright, are going to tell the client when something good is happening, or be honest and say, look, you’re not going to beat this part and here’s why.
So I think we’ve seen a lot of bad lawyering, and part of it, I think you and I probably both agree on this, but I don’t know. Sometimes the famous lawyers aren’t always the best as well.
Preet Bharara: They’re not.
Anne Milgram: But what do you think about, I mean Cohen clearly, he was erratic at the beginning. Remember when he was making public statements saying, I want to cooperate. You and I both know, if you’re the prosecutor’s office, you’d rather someone come and talk to you, versus talking with the national media.
Preet Bharara: What they don’t like, you cannot stand, and I understand this happened with my old office, and Michael Avenatti was supposed to come in, is this expectation that the lawyer’s going to come in with a client or otherwise, and then immediately go on cable television and tell the world everything that happened, and also probably mischaracterize it in some way. And there’s nothing really the prosecutors can do to stop someone from going out in the world and saying, here’s the kinds of things they’re asking me. And I also glean from the questions, the things that they have against Donald Trump, because that’s just annoying, and it’s difficult, and it sets you back.
Anne Milgram: But what it means is, you invite that person, that lawyer back in, right? I mean, there’s a certain amount of good will that comes when you’re in prosecutor’s office. And if somebody walks into your office, goes out, misrepresents what happened-
Preet Bharara: No you don’t, you stop with them. And I think part of what has to happen with a defendant client target, like Michael Cohen, who’s not that different from lots of other folk, just less famous, who are criminals and who lie a lot, and who did things at the behest of a superior, inference of crimes, is that you’ve got to turn the guy around, and sit in the office and explain to that person, you can’t mouth-off, you need to show contrition. You can choose to fight, right?
And I’ve been in the room, in the jail cell in other places when I was in private practice, where you say to the person, “Look, you’ve got a choice. If you want to fight, we can fight, we can go to trial. And we can be adversarial,” which is all fine. On the other hand, if you decide that it is in your interest, and here are all the reasons why it would be in your interest, because you can get a light sentence, you can get on with your life. Maybe you can preserve some time with your family that you might not have otherwise had, but if you decide to do that, then you got to cut it out, and you got to behave.
Anne Milgram: And you got to tell the truth.
Preet Bharara: And you got to tell the truth.
Anne Milgram: On everything.
Preet Bharara: And what I think is sort of remarkable is, that clearly the Mueller team in particular, seems to have some faith in the ability to put Michael Cohen forward in some future posture, as a truth-teller, even though, imagine what that cross-examination’s going to look like [crosstalk 00:12:22] if he has to testify.
Anne Milgram: Yeah, it’ll be brutal.
Preet Bharara: Lie after lie, after lie. For people who are also liars, in a documented way, and admitted to.
Anne Milgram: I mean, you and I have both seen this. Juries don’t like cooperators because they’re liars or because they’ve committed crimes. And so there’s push-back, but I think juries do understand that they’re the people in the room that Donald Trump did not surround himself with saints. He wanted people, as we’re seen, people like Cohen who are willing to bend the truth and do this type of deal, these types of things that we now believe are illegal when you look at the campaign finance laws and such. And so, I think juries do understand that eventually.
One thing you just said that I want to ask you about, because you just, I think did a pretty good explanation of what you would say sitting across from someone who’s a potential cooperator, right? You’ve investigated a case, you’ve built a case against them, you’re now approaching them to say look, here’s what it is, here are the charges we have against you. And there are two ways that this can go. We’ve seen a lot of attacks of the Mueller team. Trump has said, they’re heavy-handed, Corsi came out, Jerome Corsi, who is one of Roger Stone’s associates and is being investigated, came out and said, they were trying to get me to admit to lies. And I think it’s probably important just to talk about this for a second, which is, this is what prosecutors do.
Preet Bharara: When you say what prosecutors do, you don’t mean that they compel people to tell untruths, right?
Anne Milgram: No, what they do is they give, what I think Trump and Corsi and others are referring to, essentially when they talk about prosecutors being tough on them, is essentially what you’ve just said, which is this conversation that happens with everybody who’s a potential cooperator. Which is, if you can, you have this sit-down where you say, look, here’s the evidence we have against you, here’s what we foresee charging you with, and here are these two options that you have. And it’s a really tough conversation for someone to hear. And a lot of people don’t react well to it, but there’s nothing unethical about it. And actually, I think it’s an important part of being a prosecutor.
Preet Bharara: No, absolutely. And I think the distinction is, depending on what kind of person you are, and how much you’re not prepared to face the truth, you can misinterpret, or mischaracterize what the prosecutor is doing, right? So you’re sitting in the room with the prosecutor, you’re saying here’s how things unfolded, and it was all innocent. The prosecutors know, from other evidence that it absolutely was not. And that the potential cooperating witness is not telling the truth. And so what they do is, they become tough on that person, and they’re saying, are you sure, is it not true that it happened this other way? Is it not true that this other witness says this other thing? Is it not true that this email means this other thing? And I guess if you’re a belligerent person who’s not willing to own up to what you have done, and you’re also a poser on television, and have been one for a long time, like some of these people are, including Jerome Corsi, you can characterize that as, they’re trying to tailor my testimony to what they want.
Anne Milgram: Right, exactly.
Preet Bharara: When, what they’re actually doing is, based on long experience with people who lie and minimize, particularly at the beginning, they’re trying to get them to tell the truth.
Anne Milgram: Yeah, and it’s an important point for people who are about to be charged. I always felt like it was important for them to know what the evidence was against them, and have this opportunity, not just a defense lawyer to say no, my guy doesn’t want to cooperate, but to actually have where it was possible, the defendant in the room, to basically hear from me saying, look, here’s the evidence we have. Here’s what we intend to charge, let’s have a conversation, and to give someone that opportunity.
Preet Bharara: So relatedly, with respect to Michael Cohen, there was some reporting that’s not very specific, over the weekend, that suggests that Michael Cohen at least, thought in the early going, that he would be pardoned by Donald Trump. Now, he doesn’t say that someone gave him a letter. He doesn’t say that someone used the word pardon, according to the reporting, but that, that’s what he believed to be true. Anything to add?
Anne Milgram: I bet there were conversations about pardons. It’s hard to know without having been in that room, or having someone tell us with more detail, exactly what they were. But I’m sure, because that is the ultimate get-out-of-jail-free card. And the President could pardon someone, take away all their criminal charges. The President could also commute a sentence. So if Paul Manafort gets a sentence of say, five years or 10 years, the President could commute that and the conviction stands, but the sentence goes away. And so, I’m sure that there have been innumerable conversations amongst all of them.
Preet Bharara: But the weird thing is, if you’re dealing, you know, “is there an honor among thieves,” as the saying goes. There’s some overtures, it can’t be direct, unless you’re really stupid. And I don’t even think the Trump folks are quite this dumb. But that Michael Cohen is getting this getting the sense that I’ll be taken care of, I’ll be pardoned. I don’t know how you trust that.
Anne Milgram: Right, I think that’s the key thing. To me, a smart person wouldn’t trust that from Trump or from any President. The thing that’s most interesting probably to you and I here is that Trump is a target of the investigation, and so if he pardons someone against who may testify against him, it certainly does look at best, corrupt, at worst, like obstruction of justice. And so, it’s a really interesting question, and I suspect the Mueller team has probably looking a lot at this. But I agree very much with this. You could not trust that, and I think it’d be really interesting to hear Cohen on what he was thinking about, and whether it was that he wasn’t promised? He was told, we’d look at a pardon, which is very different than, I promise you a pardon. And so, if that could be a part of it.
Preet Bharara: Yes, it’s just going to be hard to prove if there’s any obstruction in this potential dangling of a pardon, because it didn’t happen, because it probably wasn’t made explicit.
Anne Milgram: I’d be surprised if they made it explicit. I think it would be more like a, look, the President has a pardon power, and he would consider, he’ll consider many things when he looks at pardons, or something of that nature.
Preet Bharara: Right, but what’s interesting also, going back to the sentencing submission, and then we’ll move on to something else, is that they sort of make clear that they’re not holding, not only are they not holding out hope for a pardon, but they’re rejecting the idea of a pardon. And he’s changing his life, and he doesn’t want the taint of a pardon. And he’s going to cooperate with everyone, and his mother. And that’s that.
Anne Milgram: That’s smart. I mean, it’s definitely, it’s a smart message to send to the judge. And also, he’s never getting a pardon. Let’s be realistic.
Preet Bharara: I think that’s correct. I think that’s correct. Paul Manafort quickly, in stark contrast to Michael Cohen, he went to trial, got convicted, tried to cooperate, then lied some more. His fate is pretty much sealed, no?
Anne Milgram: Yes, I think that’s right, his fate is sealed. And, you know, he’s already pleaded guilty, he’s not taking that plea back. He’s just losing the benefit of cooperating with the government, which means his sentence is the full sentence under the things that he pled to. He can also, of course, be charged by the government again. I’m not sure they do that. He’s got a number of charges he was convicted of in Virginia and he’s now got these charges in D.C. At some point-
Preet Bharara: And he’s not young. Maybe people don’t appreciate that prosecutors do or should take into account whether it’s worth it prosecuting somebody on everything you could possibly can, when you’ve already got a conviction on a number of counts. And it may not affect the ultimate sentence too much, and the person is already of an age where reasonably, they would spend the rest of their life in prison, based on the sentence, they’re already subject to.
Anne Milgram: Can we go super wonky just for one second?
Preet Bharara: Please.
Anne Milgram: If you follow the Supreme Court case that’s about to be argued, on this question of separate sovereigns, which I think is so interesting when it comes to Manafort. So, it’s always been considered that the federal government and state governments are separate sovereigns under the constitutional double-jeopardy provisions, meaning that the federal government and the state government can prosecute you. They can prosecute you for the same offense, for the same conduct. I mean a big example’s always the Rodney King case in Los Angeles, the state prosecuted the police officers related to Rodney King. That was not successful, there was an acquittal, and the Feds successfully prosecuted the police officers who alleged, have assaulted Rodney King.
And so the Supreme Court is hearing arguments this week, from a man who was convicted of gun possession in both the state court and in federal court, is that lawful? And for Manafort, and the Supreme Court took the case. And this has been the law of the land that the state government and the federal government are separate sovereigns for, I think over a hundred years. What’s really interesting is if they overturn it because someone like Manafort, I think also potentially will face state charges, particularly related to the tax evasion, the tax counts. And so that’s just a small thing I think, to watch for, that if the Supreme Court says, no separate sovereigns, you only get one bite at the apple, whether you’re the Feds or the state, that would change the way I think Manafort … If Manafort got a pardon for example, the state, what would that mean for the state, its ability to prosecute? Super wonky, sorry.
Preet Bharara: But there’s a related, and separate issue in New York State. Because the New York State constitution, separate and apart from whatever the Supreme Court says, makes it clear that in certain circumstances, the state can’t prosecute you already. Which is why, then Attorney General Eric Schneiderman, and I think Barbara Underwood, in the acting capacity, have been pushing an amendment to the New York State constitution, to allow prosecution in the state, even for something where there might have been a pardon on the federal level.
Anne Milgram: That’s right, but remember also Manafort didn’t plead to all the tax counts.
Preet Bharara: Right.
Anne Milgram: So I think to be continued. This could be a very interesting, to see what the state does.
Preet Bharara: So Jim Comey in the news again, former FBI Director, who-
Anne Milgram: Despite our best predictions?
Preet Bharara: Who received a subpoena from House Republicans in the lame-duck session, to come testify. And we had a discussion about this some days ago, where he said that he wasn’t going to come testify behind closed doors because he was worried about selective leaking, and he wanted to be fully transparent. And we talked about how that might play out. I was a little bit wrong, because I said [crosstalk 00:21:46].
Anne Milgram: So was I.
Preet Bharara: Yeah, I think we said, he would [crosstalk 00:21:47]
Anne Milgram: He would run down the clock, yeah.
Preet Bharara: He would run out the clock, and he would make them try to enforce the subpoena. Instead, he went into court to try to quash the subpoena and then they had a discussion. And so now it looks like he will be testifying.
Anne Milgram: Yes, it looks like the judge basically did not rule, was going to rule this week, but made it very clear that the judge was not sympathetic to Comey’s argument. We were thinking last week that it was going to be a committee hearing. One of the things, or at least Comey’s talking about now is that it’s a deposition and not a committee hearing, and that the long-standing practice has been that depositions are private and aren’t public. What do you think about that?
Preet Bharara: So it’s been a while since I conducted an investigation in the Congress, but we did it multiple different ways, depending on what the agreement was that you reached with the witness and also the administration, if it was an administration witness. So I conducted a number of what we, I guess we called depositions that were under oath, there was a court reporter, there was a transcript that was generated.
Anne Milgram: Were those public or private?
Preet Bharara: So we had an understanding that members of Congress, members of the Senate, could talk about what happened within a period of time afterwards. There was not an understanding, at least with respect to some of those things, that they would become public. Many of them did become public later, in connection with the Inspector General report. But that is all sort of through arrangement and negotiations.
Anne Milgram: It seems like the deal they’ve cut here is that, Comey can talk about it, whatever he does. And then within 24 hours, the transcript will be released. And I think that does meet in some ways, his concern about the whole record being public, and not just the members of Congress walking out and selectively saying, here’s what he said on the x issue, and maybe spinning [crosstalk 00:23:21]
Preet Bharara: Not clear to me why it was necessary then, for this to be a private proceeding, if it’s going to become public verbatim the next day. Maybe there’s a concern about having 24 hours to redact things, that should not become public.
Anne Milgram: And they are asking about some sensitive FBI things. And I think one of the things I thought was interesting is that Comey said, part of the deal was that someone from the FBI would be with him, to make sure that he didn’t talk about, or answer questions related to things that could not be made public, or it could not be disclosed to Congress.
So that’s Friday, and we’ll see him … We’ll probably I guess, we won’t see the transcript until Saturday, but we’ll probably hear him talking about it on Friday. What about Loretta? Loretta Lynch, she also was subpoenaed. There’s been no indication that she’s moved to quash it, and I think the original date was today. So, is Loretta Lynch walking into the House Judiciary and Oversight Committees as we speak?
Preet Bharara: It doesn’t sound like it. I have not seen any report. And maybe you would think it would have been prominently reported.
Anne Milgram: It’s been strangely missing from the conversation, the Loretta Lynch piece. But I would assume she’ll get the same deal Comey has, that everything will be released within 24 hours.
Preet Bharara: A lot of this stuff, we’ll know one week from today.
Anne Milgram: Before we go, we’ve got one question from a Café Insider. From Julie, who says, “Hi Preet, why is it that Inspector General, stop their investigations after a public official resigns? For example, in a story today, it basically seem to say that the Inspector General closed two cases against Scott Pruitt, the former head of the EPA, because he resigned and didn’t speak to them. Can they not go after him still, for defrauding taxpayers? Or is it because he cannot be “disciplined,” because he is no longer a government employee? Thanks so much. Julie.”
Preet Bharara: So that’s a great question. And I think it probably depends on what the rules and regulations are with respect to the particular Inspector General, at the particular agency. My experience is with the Justice Department, and as you know, the Inspector General very recently, in the Justice Department, did a very in-depth investigation with respect to how Jim Comey conducted himself in connection with the Hillary Clinton email investigation. I was interviewed for that Inspector General Report. I no longer work at the Justice Department, obviously, and nor does Jim Comey. So, the question about whether or not in the Justice Department at least, the IG can look at something with respect to an employee who has left, is not a problem.
Whether or not there’s any enforcement mechanism, that there probably isn’t, other than a potential referral to Congress or a referral to a prosecutor. There’s a separate subdivision within the Justice Department, called the Office of the Professional Responsibility, which is all about internal discipline. And my understanding is there, separate and distinct from the Inspector General, an OPR, Office of the Professional Responsibility investigation, ceases when someone leaves the department, because they didn’t really have no jurisdiction and no disciplinary authority at all.
I don’t know why this is true in Pruitt, so this is maybe not that helpful an answer, but I thought it might be useful to just put in context.
Anne Milgram: But the one point about Pruitt is that another agency could investigate him, an outside prosecutor agency.
Preet Bharara: And probably should.
Anne Milgram: Right. And so that may all be happening that we just don’t know because again, that could be done behind closed doors in a grand jury, and whatnot at this point.
Preet Bharara: Right. So we’ll be back next Monday, talking about all sorts of things, including Comey, Cohen, and any other person, whose last name begins with-
Anne Milgram: And who may have committed crimes against the United States government.
Preet Bharara: Yes. Like conspiracy, or-
Anne Milgram: Collusion.
Preet Bharara: Yeah. All those C-crimes, and C-defendants.
Anne Milgram: Corruption, but it’s not a crime, just a C-word.
Preet Bharara: Not to mention all the other crazy things that might happen over the next five days.
Anne Milgram: Yeah, I don’t think we should try to predict.
Preet Bharara: No, no more predictions.
All right. We’ll be back next week folks.
Anne Milgram: Great to talk.
Preet Bharara: This is the Cafe Insider podcast. Your hosts are Preet Bharara and Anne Milgram. The producers at Pineapple Street Media, are Kat Aaron, Jenna Tamara Sepper. And the Café 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 Café Insider community.