CAFE Insider 12/10: Transcript

CAFE Insider 12/10: Transcript

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Preet Bharara:              From CAFE, this is CAFE Insider. I’m Preet Bharara.

Anne Milgram:             I’m Anne Milgram.

Preet Bharara:              Hi Anne.

Anne Milgram:             Hi.

Preet Bharara:              We’ve got a lot to talk about. No pleasantries this morning. Friday evening,-

Anne Milgram:             Jump right in.

Preet Bharara:              … I saw you at the CNN studio. You were talking, I was talking. Lots of people have been talking about all these submissions. We should talk a little bit about the SDNY, Michael Cohen submission in respect of sentencing, the Special Counsel submission. There’s a submission about Paul Manafort. We have apparently a new Attorney General nominee coming up.

Anne Milgram:             Where do we start?

Preet Bharara:              Let’s get right to Michael Cohen. So, the SDNY, my old office, sort of by the way weird to be talking about my old office, which I very recently was at the helm of, to try to make sense of what they’re doing and maybe explain a little bit of it. But they put in a sentencing memorandum, which took the diametric opposite view of Michael Cohen, then Michael Cohen’s own lawyer, Guy Petrillo, put forward-

Anne Milgram:             And they came hard at him.

Preet Bharara:              They did. How did you feel about how hard they came?

Anne Milgram:             I actually wanted to ask you whether this sort of tell him was the normal tone, because my read having read a lot of sentencing memos, this was hard. And they really came after him for lies, for deception and deception, and his position as a lawyer. And what I think they methodically did is say, “Look, in your memo you say you’ve come to this realization that now you want to be a good person.” And they then call him out and say, “Look, you did that after you knew you were going to be charged.” And so at every turn, everything that Petrillo said, and I think … I thought artfully, his submission was a well done defense submission. They just take each issue and sort of show why it’s false. What about the tone? Is that normal for Southern?

Preet Bharara:              The tone will depend on the individual circumstances and the defendant. It struck me because I would imagine this will become relevant as we talk about other parts of the sentencing memorandum. There’s no question that this was reviewed carefully by a lot of people up to and including the acting attorney … I mean, sorry, the acting US attorney himself, Robert Khuzami, we should talk about him also, and every word had to have been cleared, carefully thought about because the stakes are high, and the whole world is watching. So, there are no accidents. Sometimes you’ll have a prosecutor who will get a little bit over their skis and maybe be a little bit too harsh, a little bit too soft, because it-[crosstalk 00:02:21]

Anne Milgram:             And then the supervisor will say, “Take that line out or tone it down.” One question for you on the cooperator piece, cause you and I have talked a lot about Cohen wasn’t a real cooperator, but there’s a sort of few lines in here where the Southern District basically says, “Look, you had the chance to be a cooperator and you turned it out.” Maybe you could talk a little bit, I think being a cooperative in the Southern District is different than it is in some places.

Preet Bharara:              That’s absolutely true. First is, with what you said, on the tone and throwing back at him. I think, in part, the SDNY prosecutors were responding to the really excellent memorandum done by Guy Petrillo, Michael Cohen’s lawyer, where they painted him as lovely, God fearing, and remorseful and they were like, “Ah, it’s not so good as you say.” And so the tone with respect to statements about how he used to be a jerk to journalists, which you wouldn’t ordinarily see sense in memorandum like this, was I think intended to paint him more in a fair light given the long history of his interactions with people and how he was a bully and how he was a fixer as opposed to basically how he has been portrayed in the last five minutes of his life as a contrite cooperator. So getting to your question about cooperating, I think it’s important to understand about the Southern District of New York.

Some people think, and this may have been true in the AGs office that you ran, you commit a crime and you come in and you commit the crime with four other people, and as long as you give up those other people and you can have corroborating evidence that shows that the for other people rob the bank with you, that’s it. Not Enough in the Southern District, and the Southern District, we would say you need to confess all of your sins. You need to explain everything you’ve ever done since the time you were a juvenile. And you have to be credible in how you admit those things. So, if you’ve been a drug dealer your whole life and you’re prepared only to tell about the people you did the transaction you’re charged with, that is not sufficient.

And maybe that’s overly harsh, but we have found over the years that it makes you a better witness. It makes you a better trial witness. It gives you more credibility. It allows us to charge other people. Sometimes it allows us to clear other people if you admit to crimes that other people may have been charged with. And it was very clear from the submission that Michael Cohen didn’t meet the bar and that he would not talk about all sorts of other things that he did. And think about how long the life he’s led with seemingly smarmy business tactics, I’m presuming. And he didn’t want to give all that up and they said, “Too bad.”

Anne Milgram:             Yeah. It sounds like he just … he talks about the crimes they already had him on or that they already knew about. He gave them more information but, but it didn’t go beyond that. The thing I also found sort of striking is that in the … in his submission to the government, Cohen basically says, “Look, I want to start over. I want a clean slate.” There is no way you get a clean slate if you’re walking around with other crimes that you’ve committed out there, and you’re not willing to sort of acknowledge and walk forward. I was sort of wondering, I don’t think he’s protecting Trump at this point. It would seem strange to me. So who is he protecting?

Preet Bharara:              He might be protecting himself. Because this is the case. Look, it is possible he’s committed all sorts of other crimes, tax frauds and other offenses. I don’t know. There may be business associates from the past that he would have to give up. And sometimes, the statute of limitations will have run in those things anyway. But if you’ve had a long history and career of doing bad things, you maybe don’t want to give all of it up. And I think he was taking a shot that there’ll be lenient with him because he had information about the president.

Anne Milgram:             He wanted it to be sort of half in.

Preet Bharara:              Half in, and-

Anne Milgram:             And get the full benefit, the full benefit, and they were having it. What’s really interesting about all this stuff coming at once is, it’s more like reading a book then individual chapters. And so it’s starting to come together a little bit. One of the things that I was really struck by in the Cohen piece with the payments to Karen McDougal and stormy Daniels, there were a few things. First, that there was a meeting with the head of the National Enquirer, American Media, AMI, and Trump and Cohen in 2014 where they came up with this plan. If people come forward, when women come forward, we’re going to buy those stories and essentially silence the women by never publishing those stories. But when you read how they did it, it’s like a political corruption or a complex white collar theft case in many ways.

I mean, it’s not the normal, like, if someone steals your wallet or … it’s actually a shell game. So, Cohen is setting up these two separate entities. I mean, there’s a level of cover up and duplicity here. I mean, he’s like a political grifter, almost. I don’t know what the right way to describe it.

Preet Bharara:              Fixer.

Anne Milgram:             Yeah. But it’s like, it’s a fixer, but it’s not a simple fix. I mean, this is pretty complex criminal … Did you not … does that strike you-

Preet Bharara:              Yeah. And even the reimbursements were complicated. It wasn’t like-

Anne Milgram:             And I don’t think they were good at the criminal part of it, by the way. I mean, it’s obviously there’s a lot of trials.

Preet Bharara:              Thank God for incompetence. It’s the gift to the prosecutor. No, I think that’s exactly right, which is why there are so many witnesses that can corroborate this, and there’s so much evidence of it because lots of people have to be involved in order to get the job done. Here’s the thing in the Cohen memo, that everyone has been talking about, and everyone has been focusing on, because, the one question is, what does this mean for Michael Cohen? And I think it almost certainly means that judge Pauley will sentence him to some years in prison. But what does it mean for the president? What does it mean for other people? And on page 11 of the memorandum, let me just read the two sentences. And this is what has everyone a flutter. Cause you’ll remember, that Michael Cohen in his guilty plea proceeding said that he had made these payments in coordination with and at the direction of the president, individual one.

Anne Milgram:             And at the time the government hadn’t asked him that as part of the allocution. I mean, he sort of offered that at voluntarily in court, which I remember thinking, “Oh, I wonder what the government … what does the government think about that?”

Preet Bharara:              Yeah. It was necessary for his guilt that he did it at someone else’s direction. You didn’t have to have that. And then here there are two sentences. The government writes, “Cohen coordinated his actions with one or more members of the campaign, including through meetings and phone calls about the fact, nature and timing of the payments.” And then here’s the kicker, “In particular, and has Cohen himself has now admitted with respect to both payments, he Cohen, acted in coordination with and at the direction of individual one,” who’s the president. So, the SDNY folks are saying, “Flatly, as a matter of fact, Cohen acted in coordination with and at the direction of individual one.” And as a parenthetical they say, “As he himself has now admitted,” following the sentence where they talk about how he coordinated with members of the campaign and meetings and phone calls. Do you agree with me that SDNY clearly has corroborating evidence, separate and apart from Michael Cohen that Donald Trump directed these payments?

Anne Milgram:             Yes. I have no question of it from the way that that sentence is written, by Cohen admitted. It’s essentially saying, Cohen admitted what we already knew, which was that the president of the United States directed this. Remember it’s been reported that Pecker has been cooperating, the head of-

Preet Bharara:              [crosstalk 00:09:24] Pecker’s.

Anne Milgram:             Yeah, the head of … I think … I sort of think of him as the National Enquirer guy, but then he runs the AMI, which is a company that runs a number of tabloids and is an old friend of the president. And he’s the one that the payments were structured through. So the women, Stormy Daniels and Karen McDougal came in with these stories to tell. And in exchange for getting those stories and silencing those women, they paid over $100,000 to each of the women in exchange. We know that Pecker has been cooperating. That’s been publicly reported. So, there are other witnesses. What’s fascinating to me is what other evidence do they have because it’s clear from that sentence. And that sentence, it’s a little bit strange or it’s at least a little bit surprising to read it written like that because you would almost expect them to say … to say it differently. It’s like a very conclusory sentence.

Preet Bharara:              Look, I keep doing this exercise, which I have to stop doing, that I’ll admit to the folks who are listening. Since I used to be the US attorney, I sometimes do the thought experiment and put myself back in the job, and I think to myself, if my prosecutors drafted this and came into my office, and unquestionably this would have been something that went up to the top, along with the criminal division chief and the deputy and whoever else. I would’ve asked a lot of questions about that sentence. I would have said, “Is it true? Tell me the corroboration.” Obviously there must be. Why is it necessary to have that sentence there? Now, there’s a reason to have it there.

To sort of to give the context of Cohen and Cohen’s conduct. But you have to know in the real world, that if you write a sentence like that, people like you and me and other folks on television and in the legal field will be wondering what that means for Donald Trump. And Are you signaling that you’re going to take some action against Donald Trump? I mean, as recently as this weekend, Andy McCarthy, who’s now a writer for the National Review used to be an assistant US attorney in the Southern District, he took that to mean that there’s a high likelihood that Donald Trump will be charged when he leaves office based on the statements. But I don’t know that you necessarily had to have it.

Anne Milgram:             The thought exercise I was doing a little bit was, okay, Cohen pleads guilty and so you get these sentencing memorandums. If he was charged, with Trump have been an indicted co-conspirator, how would he have been named in this? And I think the answer’s probably yes.

Preet Bharara:              Probably yes.

Anne Milgram:             That he would have been an indicted co-conspirator. So the statute of limitations will not have run when … if Trump loses, I don’t know how long the statute is, I should admit to that.

Preet Bharara:              It’s five years.

Anne Milgram:             Okay. So basically-

Preet Bharara:              So, they’ve got time.

Anne Milgram:             As long as Trump isn’t reelected in 2020. And so, the McCarthy stuff presupposes 2020 the president’s out of office, then the Southern District could bring a charge.

Preet Bharara:              I’m going to say one caveat, which will disappoint some people, but it is sometimes the case. I don’t know if it is here. It sounds like they have corroborating evidence that implicates Donald Trump fairly strongly, but it is sometimes the case that you feel like you have enough evidence to accept a guilty plea from someone. And along with other evidence, you might believe in another party, in this case, the president, individual one, might be guilty of that crime as well. It doesn’t mean that you have sufficient evidence and comfort going forward to charge that person. And part of it may be that even though you have some corroborating evidence that says Michael Cohen is telling the truth.

Michael Cohen himself is so not credible, is such a liar, is such a scumbag, that would you really proceed against an individual, much less the president of the United States based on that other evidence. And it has been true, I’m sure you had cases like this, we had cases like this, where you believe your otherwise lying, cooperating witness and you have a little bit of corroboration. But boy, you go to trial, and I’m thinking of a trial in particular, the jury hangs, well, the jury acquits because they just can’t bring themselves to believe the witness and Michael Cohen may be such a person.

Anne Milgram:             Yeah. I think the real question will be what else do they have? And do they have sufficient evidence where … Cohen being someone that a jury would see as truthful isn’t necessary for a conviction. And I think that’s a real question here.

Preet Bharara:              So again, there’s a reason why everyone is focusing on this sentence because it’s the first time that it seems that the Department of Justice itself, not a Special Counsel, not an independent person, not a commentator, not a pundit, is basically making the bold statement that Donald Trump is guilty of a crime. There’s been all the smoke around these folks for a period of time. The question is, is this finally the thing that Donald Trump gets tagged with? And before you answer that question, we should anticipate what Rudy Giuliani and other people who are representing the president have said. And one of the things that they’re saying to try to get ahead of this issue is, it’s not a crime, even if it’s true. And the reason it’s not a crime is you have the John Edwards case. So, John Edwards ran for president, I think a couple of times, and he was charged a few years ago by the Department of Justice, not my office.

Anne Milgram:             With campaign finance violations.

Preet Bharara:              And remember, the basic facts were, he was trying to hide an affair. And rich friends of his, associates of his,-

Anne Milgram:             And campaign donors.

Preet Bharara:              … and campaign donors, were paying money and making contributions. The government’s argument was not dissimilar to this case-

Anne Milgram:             In order to support the mistress and stop her from coming forward, or … there was some … there was money going to the mistress I remember.

Preet Bharara:              Right. The government’s theory was, that was a campaign contribution, I believe.

Anne Milgram:             Right. Because it was benefiting him as part of his election because he didn’t want it to become public. So,-

Preet Bharara:              But what happened in that case?

Anne Milgram:             There was an acquittal. The Jury did not convict John Edwards. Campaign finance violation cases can be difficult. We’ve seen a number of acquittals in high profile campaign finance cases. And I think Edwards argument, and I don’t remember specifically, but I think the argument was really, look, this wasn’t about the campaign. This was about my wife and family and trying to sort of keep this covered up. And by the way, that doesn’t mean that it’s not legally viable to bring a case against Donald Trump for this violation. What it means is that John Edwards was acquitted for something that’s a little bit similar. It’s also a little bit different and in some profound ways. First of all, I do not recall there being evidence and I’ll go back and read more, but I do not recall there being evidence the way there is here of this sort of mastermind plan.

If you have proof of this meeting in 2014 between Trump, the head of the National Enquirer and Cohen to essentially get all these negative stories that would report that Trump was having an affair and pay the women off to that, you silence them and then the actual execution of that where Trump is involved and is directing it and you can prove those things. I think that’s a very different case, especially with remember the payments right before the election. There’s one of the payments that essentially comes like a week or two before the election and seems really calculated to make sure that the story doesn’t drop in the two weeks before the Americans go to vote.

Preet Bharara:              And two more points about that. One is, Rudy Giuliani himself, I think said in recent months, directly tied the payment to the election. So can you imagine if that information came out during the last debate on October 15th with Hillary Clinton, which seems to be a crazy admission on the part of the president’s lawyer. And second, with respect to the John Edwards case, there was some proof that it was really about the family and not about the election because I think one or more of the payments, if I’m not mistaken, was made after the election. Whereas here it was all done before the election. And so the whole question comes down to what the intent was. And I think there’s a lot of reason to believe that the intent was to help the campaign.

Anne Milgram:             Yeah. You also have them in here, and it’s included in the filing, but you also have Stormy Daniels lawyer essentially going right back and forth with Cohen on this question of like, “You said you were going to pay money. The money hasn’t come. We’re going to publish the story right up to the sort of eve of the election.” And so there’s pretty concrete evidence that there was a push, and it all revolved around the election. The only other thing I’d say is, where I think this becomes interesting, and I don’t think in and of itself it becomes a conversation about impeachment. But I think in the context of what we’ve seen with the Cohen memos, with the Manafort, with the Flynn piece, there’s an incredible amount of not just corruption, but cover up that we’re seeing.

And I think it’s important to remember, again, I don’t necessarily think that the United States Congress … the House representatives would bring … would start looking at impeachment based on this alone. But I think it’s worth noting that it is part and parcel of this whole desire to win at any cost, and then to cover up whatever you have to cover up and to keep information from the public. And so I do think it’s … if this pushes forward, whether or not the president gets charged, if the House of Representatives ever were to consider impeachment, this would be one of many things. I don’t think it would do it. What do you think? I don’t think it would be enough on its own, even though legally I think it’s enough. I don’t think the house would politically do it.

Preet Bharara:              If there are articles of impeachment, this will clearly be one of the articles of impeachment. And just to recap what you said, so the people, as they’re listening to the news going forward and reading about these things going forward. Is this a crime? Yes. Is it distinguishable from John Edwards? Yes. The fact that John Edwards case resulted in an acquittal doesn’t mean that it’s not a legally viable case. It just means that the evidence there was not enough. So sometimes you have not a failure of the law, but a failure of the proof. But it does point up, what I think I was saying earlier, that these are not easy cases to bring, and you got to have a lot of proof and there were mixed motives for paying off a mistress, which could be to protect your family, but also could be to help an election even if you have corroborating evidence.

I just want to caution everyone by saying it doesn’t mean it’s a slam dunk. And the reason you look at John Edwards is because there’s an example of a case that the government thought was strong and didn’t succeed. It doesn’t mean it’s not viable, but it can be a problem. Last point I want to make about Cohen or a couple of last points on Cohen, is the person who’s in charge of that prosecution is going to start to be attacked, and his name is Robert Khuzami. And he’s the deputy US attorney in the Southern District of New York, because the US attorney, Geff Berman has recused himself. It should be known and maybe not everyone appreciates this, that Rob Khuzami is a Republican, is a lifelong Republican, was head of the Enforcement Division at the SEC, was both a securities’ fraud prosecutor of great renown in the Southern District. And also a terrorism prosecutor in the Southern District.

Anne Milgram:             Right. He prosecuted one of the first terrorism cases.

Preet Bharara:              He tried the Blind Sheik along with Patrick Fitzgerald and Andrew McCarthy.

Anne Milgram:             And the Blind Sheik was the first World Trade Center bombing case.

Preet Bharara:              Correct. And a lot of other terrorism cases as well. I’ve known Rob for years and years, but to the extent anyone starts to hear folks say he’s another angry Democrat or he’s conflicted or is partisan. He has been a registered Republican and he was appointed by the handpicked United States attorney, Geff Berman, who president Trump, I believe, interviewed himself. So just remember that as people start to attack him and the office. So, the president also weighed in on this.

Anne Milgram:             Yes. I-

Preet Bharara:              I believe he said-

Anne Milgram:             I quoted it this morning.

Preet Bharara:              Now, maybe he should listen to our analysis. And I don’t know if he’s a CAFE Insider or not, but he said something like, totally clears the president.

Anne Milgram:             Yep. Proves him innocent.

Preet Bharara:              Thank you.

Anne Milgram:             Yeah. I’m always fascinated by this, but he is a … this is part of the playbook where always play offense, not defense. Usually attack someone else is also a part of it, but it’s also … it’s a classic, if I say it, it becomes true or at least some people believe it. And it was one of his shorter, less ranting tweets, but it was one of the few tweets that actually, I smiled when I read it because I thought, God, you must really wish that that was the case. If Friday was not a good day for the president of the United States, I’m not sure whether he read any of it personally or just sort of watch the news on it, but it is not good news for the president.

Preet Bharara:              I mean, it literally implicates him in a crime. It does not totally clear him.

Anne Milgram:             Yes. I agree.

Preet Bharara:              What did you make of the … the Special Counsel also put into submission. They actually liked Michael Cohen quite a bit more, found him to be forthcoming. What do you think that says about the future?

Anne Milgram:             All right, so I think, What’s interesting is Cohen spent a fair amount of time with the Special Counsel’s office, and we’ve talked about this, it focused on his lie to Congress about how long this transaction went on when they were trying to open up the Trump tower in Moscow. And so he had publicly said it ended as did the president and others that basically said January was the end before the Iowa primary started. But Cohen now admits it was June 2016. The Special Counsel gives Cohen Credit for cooperating and for providing them with critical information, and they describe it as sort of a discreet Russia related issue as to the conspiracy, this question whether there was a conspiracy with Russia.

So I think it’s very interesting to see … He also mentions that a Russian had come to him earlier and basically asked and sort of said, “Let’s get Trump and boot it together and try to have government synergy,” which … I don’t even know exactly what that means, but it sounds creepy to me. What do you think they use Cohen for? I mean, it’s a really interesting question of sort of who he’s cooperated against.

Preet Bharara:              Yeah. I don’t know. Again, it’s unclear that he can be a good witness, and obviously it’s not helpful that out in the world is this terrible memorandum, not trouble memorandum, good memorandum. But the talks about the terrible nature of Michael Cohen’s character and now he’s not contrite. So I’m imagining it’s a piece in the puzzle and that lots of other people who we haven’t even talked about yet, Roger Stone and others who have been a little bit off the radar screen in the last week because there’s so much about Cohen and Manafort. But it’s not clear to me. And one other thing, by the way, we could keep talking about Cohen forever. And read the-

Anne Milgram:             Well, it’s really interesting.

Preet Bharara:              But Cohen, remember in Cohen’s own sentencing memorandum, he touted how much cooperation he had given, how many people he had talked to, including the New York Attorney General. And that’s a big deal for a lot of people because the New York Attorney General, if he or she were to bring a charge, in this case a she, that could not be pardoned. But the Southern District memo says, “Look, there was barely any cooperation with a New York Attorney General’s office.”

Anne Milgram:             They already had the evidence.

Preet Bharara:              They already had the evidence. It was not that significant. So I just caution people who are looking for New York Attorney General to have a gigantic file and a million charges they’re going to be able to bring against Cohen and others or against others based on Cohen’s cooperation and testimony, the SDNY memo suggests otherwise.

Anne Milgram:             Let’s talk about Paul Manafort. First he was convicted in the Eastern District, then he pled guilty. Then the government came out a couple weeks ago and said, “We are not giving him a cooperation agreement, the benefit of that, because we think he’s lied in multiple ways.” It’s a little bit, I’m going to ask you about the sentencing memorandum, but it’s a little bit funny to read. It’s kind of like that Charlie Brown thing where it’s like won’t, won’t, won’t, it will say, and then he did … completely blacked out. So, what did you think of it?

Preet Bharara:              Did you ever have this happen to you when … in the old days when you just have to use an actual marker?

Anne Milgram:             Yeah.

Preet Bharara:              I think even I did this.

Anne Milgram:             Yeah. We used to do it [crosstalk 00:24:04] victim and witness information.

Preet Bharara:              Right. But if you don’t do it dark enough,-

Anne Milgram:             You can read through.

Preet Bharara:              You can read through it. I literally going back to like, in the early 2000s, I was holding the document up, seeing if you could read something-

Anne Milgram:             Did you have any luck?

Preet Bharara:              Mistakes are made in reductions. That’s in part how we know about Julian Assange.

Anne Milgram:             Right. The indictment.

Preet Bharara:              I couldn’t see the damn thing.

Anne Milgram:             Nope. Nothing. You know what I think is really interesting about the Manafort thing. There are a couple things about … he also to me is a political grifter and there’s just huge amounts of issues with him. On the Manafort piece, I did think it was interesting that he testified in the grand jury twice, by the way, and this is a little bit weedy, but maybe let’s go here.

Preet Bharara:              Yeah. Well, tell us why.

Anne Milgram:             So, when you put a witness and a cooperator in the grand jury, it’s generally to put an evidence you don’t otherwise have or because it’s critical that you want the grand jury to actually hear it or you want to lock someone down so that they can’t later say … and the grand jury’s under oath. Someone raises their right hand and swear to tell the truth. And so if they’ve lied, they can be charged with perjury. But as a rule, people don’t change their story after they’ve gotten to the grand jury. So on two separate occasions, he went in to the grand jury. Basically it tells me that they have information that’s important to them in some way, or they want to lock him down on a certain story. What do you think of that?

Preet Bharara:              I agree with that. But, isn’t the consequence of that, that the prosecution, the Special Counsel has been hurt because they found him valuable enough to want to lock him into testimony, and now they can’t use him?

Anne Milgram:             Yes. And now they can’t use him. Right? Yes. I could get a little wonky, but yes. No, I mean, a 100% the benefit … the government’s not only … they’ve lost someone who they can use, and it’s clear from the grand jury piece, I think, that they would have used him likely on something or would have wanted the ability to say, “Look, Manafort is going to say X and now everybody knows Manafort is not going to testify to anybody’s trial.”

Preet Bharara:              I’ve said this before, I’ll say it now, and I’ll say it again, because it bears repeating, as you see, grifter after grifter as you call them, try to cooperate … fail at cooperating, lie when they’re supposed to be cooperating, engaged in witness tampering and all sorts of bad stuff. In some ways, Donald Trump has surrounded himself with these terrible people who lie and cheat and break the law and that’s bad for him, and it’s causing all this to be exposed now. But on the other hand, they’re crappy cooperators because they lie, and they cheat, and they steal and they grift.

Anne Milgram:             Yeah. Exactly.

Preet Bharara:              And it’s hard for upsetting prosecutors to use them against individual one.

Anne Milgram:             So what did you make about the Konstantin Kilimnik stuff? The guy who’s one of the … there are two sort of parts of the Manafort memo where they tag him with lying related to this guy. What’s interesting and what has been publicly report is that he’s a Russian intelligence asset. And so essentially, he’s some form of spy or someone … he went in as a linguistics or translator person. But there are two parts in this where it’s very clear that Manafort does not come forward and is not forthright with him. And there are so many things that are amazing about this. But that’s one of the guys who he had tried to get to two witnesses to basically say, “Here’s the story we should tell about why we weren’t registered as foreign agents.” Isn’t there something inconceivable about the fact that the head of Trump’s campaign had as one of his employees, Russian intelligence? There’s a piece of this … John Oliver always calls it stupid Watergate, but it’s like stupid spy gators.

There’s something about it that just struck me as like … I think there’s so much more I want to know about this guy and what his role was for Manafort and what … I feel with the Russia stuff, there’s so much more than that we would want to know from Manafort.

Preet Bharara:              Which is why I think that we’re not winding down. Some people think that it’s winding down. I think there’s a lot to come. This might be a good point to-

Anne Milgram:             Can we talk about that for one second? The flurry of activity after a long investigation does come when you’re winding down or when you want to close some parts down. Because you’ve got all these open pieces. You’ve got a number of folks out there, and you want to get through some of it and sort of start closing some of the doors.

Preet Bharara:              Yeah. Well, it sort of depends what you mean by winding down. Winding down the investigation? But if they’re going to be charges at the end of an investigation, like against Roger Stone and others,-

Anne Milgram:             Right. They’ll try those cases. [crosstalk 00:28:08]

Preet Bharara:              That take some time. And then sometimes those people will decide to flip like Manafort tried to do in between trial one and trial two-

Anne Milgram:             And then there might be additional evidence and more than investigate. Yes, I agree with that.

Preet Bharara:              This is not going to be done by Christmas. This might be a good moment to interject a question or two from the CAFE Insider listener. This is from Leslie Cotter who writes, “Dear Preet and Anne, I love the show. Preet, what a genius idea to include Anne.”

Anne Milgram:             Oh, thank you.

Preet Bharara:              “And your work in New Jersey has been transformative.” Leslie’s not your mom. Thank you both for your-

Anne Milgram:             She’s not, but thank you very much.

Preet Bharara:              So she asked a lot of questions, but let’s only put one of these to you. She says, “Can individual one be indicted as a sitting president?” And I think we talked about this before. We don’t believe so given the OLC opinion. “Can we …,” and I love the fact that she’s saying, “Can we indict?” Maybe she’s on the Special Counsel team. Maybe she’s actually one of the people on the special council team and she’s seeking outside advice. “Can we indict his children, including Jared Kushner, all involved in indictable offenses?” I am certain the answer to that question is-

Anne Milgram:             Yes. There’s no bar to indicting someone’s children if there’s sufficient evidence to prove that they’re guilty. So I think if she’s asking, you can’t indict the president but could you indict people who were related to him. The OLC, the Office of Legal Counsel opinion that says you can’t indict a sitting president, doesn’t apply to anyone’s children or wives or family. There’s a lot of information about Donald Trump Jr. and the 2016 Summer … 2016 meeting at Trump tower. There’s also an interesting question my mind about the number of times that Michael Flynn as a cooperator met with the government, 19 times.

Preet Bharara:              That’s a lot.

Anne Milgram:             It’s a lot. We should talk about this for one second because Flynn was a part of the campaign. He was a part of the transition. There’s at least one instance where he’s involved in this conversation about a UN Security Council resolution where he’s back and forth with Kushner. So, I’m really curious about, how many times would you meet with a very effective cooperator? How many times?

Preet Bharara:              Well, it depends. Sometimes you meet with someone more often because the first few times they minimize their lie. I’ll tell you the kinds of cooperators you sometimes met with a lot were career criminals who are involved, let’s say in 150 pushing armed robberies.

Anne Milgram:             And you’re going to go methodically one through one?

Preet Bharara:              To each one of them, to the best of their recollection.

Anne Milgram:             And we should say that Michael Flynn is not a career criminal, to the best of our knowledge.

Preet Bharara:              To the best of our knowledge. But someone like that who had years of military service, he must have a lot of information because it doesn’t take 19 times, if you have a discreet thing.

Anne Milgram:             Yeah. I mean, I think, a cooperator that I spent a lot of time with 10. Some probably more, some less. But 19, I mean, let’s be clear that’s a lot. And that means he has a lot of information.

Preet Bharara:              We’re running out of time here, but there’s some couple of other things that happened in the last three days or four days. Jim Comey finally testified, and the transcript became public on Saturday. He made a statement after he testified in front of the House, Republican chaired committee. Saying like, “Here we are still talking about Hillary’s emails.” The president has come out and said, “Well, Jim Comey is a liar.” I see no evidence of that. But also attacked him by saying that Jim Comey said, “I don’t recall. I don’t remember a number of times which other people have done.” Did you have a reaction to the testimony?

Anne Milgram:             I’ve read some of the transcripts and then I’ve ever had some of the other things. I mean, it struck me that, there are two things: One, it did strike me as a lot of re-litigating the email investigation. And there were a lot of things that he could also not answer because there was an FBI lawyer there, and that’s also very commonplace and I think you can tell the committee was frustrated by some of that, but that is a commonplace thing. If there’s an ongoing investigation, you’re not going to talk about it. And one of the things I thought was interesting is that the FBI council jumped in at one point and said, “Mr Comey is a witness in this obstruction of justice investigation,” which is that the obstruction of justice investigation to the president of the United States. So that’s a pretty strong acknowledgement that that investigation … I mean, we know it’s happening, but it’s still a pretty strong acknowledgement.

Comey was also questioned a lot. And I thought that this was interesting about the two FBI agents who had essentially been very strongly criticized, Peter Straws and Lisa Page combing out a lot of questions about them. He had questioned, I think Clinton during the email investigation. And so, look, I think this was an effort to sort of throw shade or cast doubt on whether that investigation was correctly done.

Preet Bharara:              But there was an inspector general report, hundreds of pages. It covered a lot of this.

Anne Milgram:             That was very critical of Comey in some ways, found that he did some things okay, and some things not okay.

Preet Bharara:              Final issue, it’s amazing that in any ordinary week, the fact that there is going to be a new Attorney General nominee,-

Anne Milgram:             Would be all we talk about.

Preet Bharara:              All we talk about. And that’s leading up the end of the show. Bill Barr, I know him personally, I’ve dealt with him when he was the Chief Legal Officer in Verizon, when I worked in the Senate and there was some legislative matters to deal with him on. He has a strong reputation as an institutionalist, as a sort of establishment, mainstream Republican. He had the job as Attorney General, three or 400 years ago-

Anne Milgram:             And we should note that he was a real lawyer before he sort of became a political appointee. And then he got to a certain point that he did prosecute cases. He was well respected as an attorney,-

Preet Bharara:              Which is not to say that-

Anne Milgram:             Which distinguishes him from Whitaker. I think it’s just worth making the point of, in terms of his background, he’s someone that I think most people would see as a real strong lawyer.  Someone who’s capable. I think he’ll be deeply conservative. But that’s a policy question. And on policy questions, the president of the United States gets to pick their AG. I think, there’s a sort of competency question too that we’ve raised with Whitaker that will not exist here. He’s absolutely competent to be the Attorney General.

Preet Bharara:              But there have been questions raised because in the last year or two he has said things critical to the Mueller investigation, talked about reopening an investigation or starting an investigation on Hillary Clinton, and this uranium issue and some and some other sweeping comments about executive power. My view is, I agree with you, that it’s much better than some of the other names we’ve heard like Jeanine Pirro and I think a politician like even Lindsey Graham or Rudy Giuliani or Chris Christie-

Anne Milgram:             Would be deeply problematic.

Preet Bharara:              Problematic. And so what I hope and expect, and maybe have a thought on what kind of ringer he should go through in a confirmation hearing about Muller and about other views he has and what representations he should make to the Senate before getting-

Anne Milgram:             Completely. And I think there are strong questions that should be asked on the right, and the left about how he will approach the Mueller investigation, his willingness to protect Mueller and let Muller essentially have a path to do what needs to be done, and to follow the facts and the evidence where it leads him. I do think he should also be questioned about … he made some statements, and I want to be careful here because of exactly what he said, but you and I have both expressed a lot of concern when it was reported that Trump had wanted to order the Department of Justice to investigate and prosecute Hillary Clinton. Not something that the leader of the government gets to do against their political rival.

Barr made a statement saying that the president should be able to ask for an investigation. And I think what’s distinct about that as he says investigation, not prosecution, but I still think there’s a lot there that he needs to be questioned about. I think one thing that this whole investigation is showing us and it’s just how powerful the presidency is and we really have to question, I think, we want our representatives to question him at length about limits of executive power.

Preet Bharara:              I think it’s important to distinguish something, we’ll talk about this in coming weeks as well. If a building explodes or cars that are made by Toyota start to kill people because there’s a problem in the design, or some other bad calamity occurs, it’s perfectly appropriate for the president of the United States to say publicly-

Anne Milgram:             Exactly.

Preet Bharara:              And even called the Attorney General and say,

Anne Milgram:             You should-

Preet Bharara:              “You need to get to the bottom of it.”

Anne Milgram:             Right. Completely.

Preet Bharara:              “What happened? Why did these people die? Why are these cars exploding? Et cetera” That is very different from saying,-

Anne Milgram:             You should be prosecuted.

Preet Bharara:              Yes. Will you prosecute Jeff Bezos? Or will you prosecute Hillary Clinton? And that’s a distinction and it’s unclear to me exactly what Bill Barr … but I have some words.

Anne Milgram:             Right. I feel the same way. He used the word investigate, but Trump was out there saying, investigate and prosecute. And so, I think if I were advising a United States senator, I would say you, “You got to go deep on this and you got to ask not just the first question but the next five.”

Preet Bharara:              There’s also the issue of whether or not Bill Barr was interviewed to be Donald Trump’s defense attorney with respect to the Special Counsel.

Anne Milgram:             And whether he was offered it and turned it down.

Preet Bharara:              Offered and turned it down.

Anne Milgram:             I would be very curious to know that.

Preet Bharara:              And how that affects the potential conflict of interest issue. I don’t know enough details. Do you feel comfortable opining on that?

Anne Milgram:             I don’t know enough details. I’ve just seen reporting that he was interviewed. Again, I’m very curious to hear if that was the case, and if so, it’s possible that’s how the president got to know him. Somebody said, “Look, you should go talk to this guy.” And then he comes through. And what kind of a conflict that might potentially look like would depend. They had one telephone call versus they spent three days together going through the president’s defense.

Preet Bharara:              Look, Matt Whitaker may not be done because there was a report today, and maybe this will be obsolete by the time this airs, but it’s possible that Matt Whitaker will become the Chief of Staff because John Kelly was basically let go. Mike Pence’s Chief of Staff who basically had … it was believed going to become Donald Trump’s Chief of Staff- [crosstalk 00:37:15]

Anne Milgram:             Going back to Georgia.

Preet Bharara:              Well, I think he’s going to be hosting the Oscars.

Anne Milgram:             Oh.

Preet Bharara:              [inaudible 00:37:19] Or Kevin Hart is going to become the Chief of Staff to the president. I don’t know. These are the things we do not know. These are the things that we will follow closely for you in the coming days and we’ll see you back here next week.

Anne Milgram:             More soon. Thanks so much.

Preet Bharara:              See you.

Anne Milgram:             Bye.

Preet Bharara:              This is the CAFE Insider podcast. Your hosts are Preet Bharara and Anne Milgram. The producers at Pineapple Street media, are Kat Aaron, Jenna Weiss-Berman and Max Linsky. The executive producer at CAFE is Tamara Sepper. 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.

 

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