Preet Bharara: From CAFE, this is CAFE Insider. I’m Preet Bharara.
Anne Milgram: And I’m Anne Milgram.
Preet Bharara: How are you?
Anne Milgram: Good. Good morning. Preet, today’s a special day.
Preet Bharara: It’s a special day because it’s Monday.
Anne Milgram: It’s an anniversary.
Preet Bharara: It’s an … Yes, it is. Thanks for remembering.
Anne Milgram: Tell us about … Yeah.
Preet Bharara: So today is the two-year anniversary of my being fired by President Donald J. Trump.
Anne Milgram: Should we say Happy Anniversary?
Preet Bharara: Happy Anniversary. Should we sing?
Anne Milgram: I’m not sure what’s inappropriate. What’s the right reaction?
Preet Bharara: Should we sing something? So yeah, it’s a long time. And in the course of that time-
Anne Milgram: You wrote a book.
Preet Bharara: … I have not one, but two podcasts. I wrote a book. It comes out in eight days.
Anne Milgram: Wow.
Preet Bharara: So those of you-
Anne Milgram: It’s a countdown.
Preet Bharara: … who are fans of the show, and other things …
Anne Milgram: And those who are not, please buy the book.
Preet Bharara: … this will … Regardless, this would be a good time to pre-order the book. You can get it next Tuesday.
Anne Milgram: Congrats.
Preet Bharara: It’ll help.
Anne Milgram: Do you feel grateful to President Trump for firing you, at moments?
Preet Bharara: You know, it’s funny, I did an interview a few days ago, doing a series of interviews for various papers about the book, and about the last couple years. And someone has been … People have been trying to get me to say, “It was a great blessing, and thank you.” I don’t think of it that way. I just think I had a great run, not bitter at all about it. I did that job longer than anyone other than two people since the Civil War. I did it a year longer than Rudy Giuliani, to be the US Attorney in the Southern District of New York. And that I’m enjoying doing these other things, and talking to you, and the fine folks who are listening.
Anne Milgram: Yeah.
Preet Bharara: One thing I did to celebrate over the weekend was I took my son to see Elton John.
Anne Milgram: Wow, how was it?
Preet Bharara: He lowered the average age of the audience by about-
Anne Milgram: You might have as well.
Preet Bharara: I think I was among the younger people there, but that’s right. I had this resolution that I’ve made that I want to go see more live shows.
Anne Milgram: Well, that’s a great resolution.
Preet Bharara: And plays and things. Yeah. That’s what I do with all the pod money is entertainment with my-
Anne Milgram: Elton John, here I come.
Preet Bharara: Yeah. Coming up next, Brandi Carlile. So, a lot to talk about as usual. We should kick off maybe talking about the Manafort sentence, which has some people unhappy from last week. The reports about Michael Cohen asking for a pardon or not asking for a pardon, something we haven’t really talked about, the Jussie Smollett indictment after alleging that he was a victim of hate crimes.
Preet Bharara: So, let’s start with Manafort.
Anne Milgram: Yeah.
Preet Bharara: 40 … How many months? 47 months.
Anne Milgram: 47 months. Less than four years.
Preet Bharara: Is that shockingly low to you?
Anne Milgram: I was surprised. And you and I saw each other not long after the news had come out and actually you told me the news and I hadn’t even had a chance to read it. And I was surprised and I was surprised because in my mind, I was thinking … And by the way, I’m sort of still thinking this and we’ll talk about the sentencing this week in Washington D.C., but I was thinking eight to 10 years. Remember the guidelines range, which the government hadn’t asked for, but was still the range, was 19 years to 24 years. And I think it’s important for people to know that judges depart all the time and sometimes there are significant departures.
Anne Milgram: The biggest departures are when people are cooperators, but this is an extraordinarily large departure and so I was surprised by it, both because I think I was surprised by the amount of time he gave him. And remember, this was a $55 million tax fraud, right? I mean, we’re not talking about $5 million even or a million dollars, which in and of themselves, I think, would be extraordinarily high amounts of money. We’re talking about $55 million over years. So that’s one piece of it.
Anne Milgram: The second piece, which I would be curious to hear your take on, was the sort of explanation that Ellis gave, which I found that Manafort, quote, “has lived an otherwise blameless life.” Close quote. Were you surprised by that?
Preet Bharara: I was surprised by that certainly, but Judge Ellis, recall, said a lot of wacky things through the course of the trial. In fact, to preview a little bit and back to my book, mostly I talk about cases that I oversaw or that my office did. But I do have a section on judges in the book and just how you deal with them as human beings and how Judge Ellis conducted the Manafort trial, so …
Anne Milgram: Is the Manafort trial in the book?
Preet Bharara: Just this part, how the judge conducted himself.
Anne Milgram: Are you for or against how he conducted himself?
Preet Bharara: Against.
Anne Milgram: Yeah.
Preet Bharara: Against. You know, not overly strongly, but he gave the prosecutors a hard time and he made himself a little bit the center of attention, so he’s that kind of judge, in a way.
Anne Milgram: He also, I think … I mean, I don’t know if you get into this, but he curtailed a fair amount of the government’s evidence that felt to me like it was relevant to the case and was appropriately admissible at trial and I think it’s rare … I mean, I’ve been in front of a lot of judges as a state and federal prosecutor. It’s rare to see a judge … I think I’ve only had one experience where that happened.
Preet Bharara: Do that much. But there are judges like that in the Southern District, too. But going back to the sentence itself, I have a few things to say and react to. So, I too was surprised. 47 months is a lot lower than what the guidelines range was. True. I also think it is true that no reasonable person expected him to get anywhere close to 19 and a half years for this kind of non-violent crime that consisted largely of tax evasion. Now remember, he was convicted of five counts of tax fraud, one count of failure to report having a foreign bank account, and two counts of bank fraud. Serious crimes. Part of what makes it a big deal, I think, is the other activity he engaged in in connection with his trial and his case and how famous he is and how he played his cards wrong every step of the way.
Preet Bharara: You know, he tried to cooperate, he lied, didn’t work. He appears to have engaged in witness tampering. That’s a problem, also.
Anne Milgram: While this case was pending.
Preet Bharara: While this case was pending. But nobody that I’m aware of, even though it’s a $55 million overall fraud … We don’t have identifiable sympathetic victims, like Bernie Madoff had and others had. … would ever get 19 years. It is very standard for there to be a long departure. It is also, I think, agreed upon by lots and lots of people, including progressives, that both in the white collar and in the street crime area, that the sentencing guidelines are often way too high.
Anne Milgram: Right.
Preet Bharara: And so, to use that as the benchmark is a little bit … It’s not totally unfair, but it’s a little bit unfair in the same way that using the benchmark of what the statutory maximum sentence might be is also unfair. So when we get to Jussie Smollett later and other folks who are charged with multiple counts and you say, “Well, each count carries a potential maximum sentence of three years or five years,” you often hear reporters say, “Well, so and so is now looking at 195,000 years in prison.” That will never happen. That’s just the statutory max that you added together to get that phenomenally high figure. So that was never going to happen.
Anne Milgram: I would sort of add a couple things. First of all, the way that sentences get so high … I asked Rachel Barkow about this, who used to be on the sentencing commission and she sort of had what I thought was a helpful take on it. And what she said was that what you have with both fraud and drugs is that the loss and quantity is calculated and the amount of the sentence is calculated by the loss of money and the quantity of drugs and that there’s tables, sentencing tables, and that the more money you’ve fraudulently obtained, the more drugs you’re convicted of having sold, the longer the sentence is. And what Rachel said, having looked at all the data, was that you quickly end up in the stratosphere in both cases and it really should be fixed so that instead we focus more on a defendant’s mens rea and role in the offense.
Preet Bharara: His mental state.
Anne Milgram: His mental state. Exactly. Because when the loss amounts get really high, judges don’t stick to the guidelines. So, I think to your point is a fair point that here we’re talking about Manafort doing 55 million in fraud, which is what puts him at that sort of extraordinary range of 19 to 24 years.
Preet Bharara: But the other problem with gearing punishment in the federal system to the dollar amount, whether it’s the amount of money that was lost or the amount of money that was made illicitly, it doesn’t distinguish between different kinds of loss or gain. So, for example, if you go out there and like Madoff did and some other people that we prosecuted did, and you literally steal money from folks. You steal $10 million from people. The loss amount is geared towards, among other things, that $10 million amount. If you are the financial officer of a firm and you inflate the books or allow or aid and abet the books to be inflated by $10 million or $100 million or some other gigantic amount, given the nature of the size of the company you’re talking about in the first place, your sentencing guidelines range can be astronomical, even though you can argue that the harm to society is not nearly the same as stealing money out of people’s pockets. And judges in my district would say that all the time, notably a former guest of the show, Judge Rakoff. So, a certain kind of accounting fraud or tax avoidance is not necessarily treated differently from stealing money out of people’s pockets.
Anne Milgram: What’s interesting about the Manafort sentencing, and by the way, one other point is that a lot of people have been talking about racial disparities in sentencing and we should talk about that just for a second. Because it’s true. There is a United States Sentencing Commission report from November of 2007 that analyzed data and they found, number one, that black male offenders continued to receive longer sentences than similarly situated white male offenders by about almost 20%.
Preet Bharara: Yep.
Anne Milgram: Almost 20% longer than similarly situated white male offenders. And so they’re matching people and so they’re saying they’re basically doing a study that isolates the question of race. So, they’re matching people so they’re otherwise similarly situated and saying, okay. You look exactly the same, but is there a difference in how the sentence turns out and they find it’s almost 20% longer sentences for black men. And so, that’s been a part of the conversation about Manafort as well is because he’s a white economic fraud defendant versus an African American either economic fraud or a street crime defendant, he’s gotten a lesser sentence. And I think that’s an important piece of the conversation.
Preet Bharara: Yeah, no. And I think we should keep talking about that and I think people should analyze the data more and … It’s interesting, all these cases relating to Trump, whether it’s Paul Manafort or Michael Cohen, have become object lessons for people to talk about the way the criminal justice system operates, whether it’s showing up at 6:00 AM for a search at someone’s home, or denying people bail, everyone is now viewing all the criminal justice system, interestingly, through the prism or lens … Is it prism or lens? I think both.
Anne Milgram: Is that a trick question?
Preet Bharara: Prism is a kind of a lens. I don’t … With the analogies, I sometimes mess them up.
Anne Milgram: I say lens, but I don’t know.
Preet Bharara: Okay, so through the lens of these particular cases, some of which people are learning about procedures and practices and policies for the first time, when to you and me, they’re standard operating procedure.
Anne Milgram: Right. And I think that Manafort does sort of raise this question of how sentencing in America works and I would argue it’s deeply broken and that if you step back and thought about how we pick sentences to begin with, it is not data-driven. A lot of it is really arbitrary.
Preet Bharara: Yeah. But that’s why the sentencing guidelines … I try to explain to students and laypeople that the idea of the sentencing guidelines was not a terrible thing in the first place. It was done in good faith because of disparities.
Anne Milgram: Right. You want similar people to be treated similarly.
Preet Bharara: Yeah. So the goal of having these weird charts with numbers on them and assigning values to things like being a leader or organizer, or not accepting responsibility, or all sorts of other factors, was to try to eliminate these disparities, which comes into conflict with the other value that you have, which is to do individualized justice based on the facts and circumstances of each case.
Anne Milgram: And also just the underlying numbers that Congress picked. I mean, I once sat in a room with a bunch of senior researchers. This was when I was at a foundation, and I asked the question, look, if we care about public safety and we want less crime and we understand that 99% of the people get out of jail and prison, what’s the right sentence? Is there a number that correlates with, if someone does two years versus three years, there will be less crime? And it was crickets, right? And nobody could really answer that question. There is now some research from the sentencing commission showing that longer sentences do not deter crime in many instances. And so, it just is a really interesting question that I don’t think we’ve thought enough about. It’s like, how do we even set that first number and what are the right numbers?
Preet Bharara: Sure. Well, it’s very important. I’ve said on Stay Tuned more than once that one reason I never wanted to be a judge was I don’t know how to play god in that way. And we make recommendations, in this case, there was not a particular recommendation made by the prosecutors. But it’s a really difficult thing to decide how long people go to prison. Now, the other thing I wanted to say about this was, so I, like you, predicted that overall in the case … And remember, these were supposed to be one case, Virginia and D.C., although different crimes, but Paul Manafort elected to make the government bring the second case. So I think he … That’s way number 153 that he may have screwed himself. Because if he had had the whole case in one place, maybe it would have been better. Maybe not.
Preet Bharara: But had he pled guilty in this matter and not had all the other shenanigans and he had gotten, pursuant to a guilty plea, 47 months on the one part of the case, I’m not sure that people would be saying that was so unfair in the same way.
Anne Milgram: Yeah, I mean one of the interesting things when you look at the data on sentencing is that his sentence is a little bit higher than people who plead guilty for the same crimes. So it’s not wildly out of the mainstream of American judges. But when you look at people who went to trial, it’s less than half of what people who went to trial, who were similarly situated, would have gotten. And we both know this. When you try a case, there’s two things that happen. One, you don’t get the benefit of accepting responsibility. And two, you have a judge that generally sits there and listens to all the evidence and watches the jury find that someone’s guilty and the break that you would have gotten before, by taking responsibility and not having the judge and everyone listen to all the evidence against you, it’s considerable. And people usually do better, significantly better, when they don’t go to trial. Here, he went to trial. The one thing here is that the judge did not like the case and I think did not believe …
Preet Bharara: Did not like the government’s case.
Anne Milgram: Did not like the government’s case and did not believe they should have brought it or charged it the way they did. And so, the judge essentially gave him almost the benefit of having cooperated or the benefit of having pled guilty on day one, which he did not do.
Preet Bharara: Yeah, no, we see that time and time again. Before the trial, if someone pleads guilty, the most that the judge knows about the conduct is what’s in the indictment, which is often fairly bare bones, and then what is said in the plea allocation, which can be a minute or a minute and a half in open court, sometimes longer, sometimes less. Day after day of trial, ordinarily, if the judge likes the government’s case or hasn’t liked it and comes to appreciate how serious the crimes were, and witnesses get into the nitty gritty of the terrible conduct and the lies and the bad behavior, that generally turns a judge off and makes a judge feel harsher towards the defendant. At the end, that didn’t happen in this case.
Anne Milgram: So let’s talk about Judge Amy Berman Jackson for a second, because she’s going to sentence Manafort in the second case this week. What do you think … And she’s had-
Preet Bharara: On Wednesday.
Anne Milgram: On Wednesday. And she’s had a very different experience, right?
Preet Bharara: So she’s, I think, known to be a tougher judge, no nonsense. She’s also the judge that imposed the gag order on Roger Stone in a separate case. So, in that second case, I think both the judge and the government were waiting to see what Judge Ellis would do, so that overall justice, in their view, is done with respect to Paul Manafort. Because remember, it was supposed to be one case. It was split into two cases. And so, the 47 month sentence, I don’t think, is going to be the ultimate amount of time that Paul Manafort spends in prison, because the government left open the option of requesting consecutive time with respect to whatever the sentence is in the second case and Judge Amy Berman Jackson, within her discretion, can sentence Paul Manafort to, say, also 47 months-
Anne Milgram: Right.
Preet Bharara: … in the second case, and cause him to serve that consecutively, which would double the sentence.
Anne Milgram: Which would mean eight years. Right.
Preet Bharara: Right.
Anne Milgram: And so she could … It’s a very interesting thing. She can sentence him up to 10 years. It’s capped, because they’re two conspiracy counts.
Preet Bharara: On the one case.
Anne Milgram: On her case. But, again, they could run simultaneous to the 47 months that Judge Ellis just gave Manafort, or they could run, as you just said, consecutive. And that would be he does more time. I mean, he could get up to, essentially, almost 14 years if she said, “I’m going to give you the max on this, 10 years. And you’ve already got 47 months and I’m going to add them on.” Or she could do what you suggest, which is another 47 months and then he does, basically, eight years.
Preet Bharara: So, my guess, and I hate to predict, because we could be proven wrong in two days, is the same as what I said a week or two or three ago, which is he’d likely get a sentence in the upper single digits or low double digits, so you know, nine to 11 years. And I think that’s lower than some people would expect, but not that inconsistent with what I’ve seen.
Preet Bharara: And by the way, the other reason that I’m only surprised a little bit but not shocked by the variance from the 19 years to the 47 months, is I saw this happen all the time in my district in high profile cases, on the part of people who did much worse than Paul Manafort. We charged and convicted, twice in fact, the Senate majority leader in New York, Dean Skelos, who was the leader of his party, the leader of a chamber of the legislature in New York, and committed extortion and got a no-show job for his son and betrayed his oath. And Skelos got four years and three months, which was a lot less than what the guidelines called for. And we were surprised and disappointed by that also.
Preet Bharara: We charged one of the big insider trading cases against a guy who used to run McKinsey, Project Gupta, before Judge Rakoff. His sentencing guidelines were much higher than … He ended up getting two years in a white collar case.
Anne Milgram: Right. I do think there is a hesitancy by judges to sentence white collar defendants to long periods of time, as well. We do see it sometimes, but I agree with you that I’ve seen frequently people get benefits that you are a little bit surprised to see happen.
Preet Bharara: Yeah. My point is, I’m not saying that that’s good. I’m saying that I’ve been there. I’ve seen it before, so I wasn’t so shocked in these kinds of cases.
Anne Milgram: It’s not surprising.
Anne Milgram: So, there’s been a lot in the news about Michael Cohen. He continues to be a subject for us to discuss and I think there are two things that have come up. The first is this conversation about a pardon. He testified publicly, under oath, that he had never asked for nor would he accept a pardon.
Preet Bharara: And he was pretty flat about it.
Anne Milgram: He was-
Preet Bharara: He said, “Never.”
Anne Milgram: Never. I mean, that’s a-
Preet Bharara: You don’t do that as a witness.
Anne Milgram: Yes. Yes. And also, what’s amazing is his lawyer was sitting right behind him and let him do it and they didn’t correct it. And so, it looked as though, okay. That’s completely right. And then the next day, his lawyer came out and said, “Before I was representing him, his prior lawyer had reached out to the Trump attorneys,” and the Trump attorneys were already saying-
Preet Bharara: Oh, so never means only since my representation.
Anne Milgram: Right. Right. Or, “I never personally did it myself. My lawyer did it.” Were you surprised by this?
Preet Bharara: I’m surprised that a person who had all this opportunity to get the story right, didn’t have to make flat, sweeping statements about ever seeking a pardon, or ever wanting a job in the White House, got bollocksed up, on the one hand. On the other hand, I’m not surprised. The guy lies and you would expect, as I’ve said before, that witnesses who are problematic are never going to become perfect. I don’t think it necessarily gets to the heart of the matter. I don’t know, as we talked about last week, that it’s material. But it provides fodder for people who say his credibility was undermined.
Preet Bharara: But the other issue that comes up with this from the other side is, well, this discussion of a pardon, was it inappropriate on the part of the president? Does it constitute obstruction? And I’m kind of skeptical about that for one reason. It seems that the record shows from the reporting that the initial conversation about a pardon was elicited by Cohen’s lawyer himself. So it wasn’t the president’s folks saying, “Hey, why don’t you keep your mouth shut and we’ll give you a pardon?” The pardon possibility was first brought … And I think that matters.
Anne Milgram: I think it matters a lot. I think if the president’s lawyers reached out to anyone and said, “Keep your mouth shut and the president will pardon you,” that’s deeply problematic for the president from an obstruction of justice standpoint and puts him squarely within the ambit of that statute of talking about trying to get someone not to cooperate. And there are lots of ways you can do it. He just happens to have this extraordinary power.
Anne Milgram: The thing about when Cohen said, flatly, “I never asked for a pardon nor would I take one,” I was deeply skeptical of that and I’ll tell you why. And we talked about some of the other areas that I think he just couldn’t go 100%, and it could be ego or other things. He couldn’t be completely forthright about his greed and the taxi medallion business and the job in the White House is another example. But you could imagine when Michael Cohen … Or you and I, I think, would imagine when the heat is first coming on Michael Cohen, that he’s trying to figure out, “what do I do?” You know? “I’ve been President Trump’s lawyer. I negotiated this deal and essentially, I’m the one in the middle of the Stormy Daniels financial deal. There are going to be checks back and forth with me. How do I play this?”
Anne Milgram: And so, that conversation with a lawyer to understand what his options are, it would be surprising if they didn’t have it in some ways. And I’m not, in any way, justifying it. But when he said, “I never once considered a pardon,” the president’s pardoned Joe Arpaio, the Arizona sheriff. The president has used his pardon power. So it’s not crazy to think that that would have been a possibility for Michael Cohen.
Preet Bharara: Look, we’ve said many, many times, and it remains true, going back to the Bible, that credibility in these matters is more important than anything else. And you can own it. And it wouldn’t have been so bad. You could have said, “Look, even though you parsed the words and some people got upset with me because I said this business about wanting a job in the White House as problematic,” and people are parsing the words like, he didn’t mean it in this particular way. You know what? It sounds fishy to an ordinary jury and you’re going to have a problem with that witness on cross-examination.
Preet Bharara: Just say, “Yeah. You know what? I’ve been the personal lawyer to the president for a long time. I thought I might get a job. It might have been great. I didn’t. I’m not disappointed. Ultimately, I didn’t want to take that kind of job, but yeah. I thought about it. You know, on the other hand, I’m looking at going to jail. I have a family. I don’t want to be in prison. And so I saw the president pardon people and yeah, so my lawyer may have had some discussion. Nothing ever came of it. And as I have thought about it, I don’t want a pardon from this person. I want to take responsibility. I’m going to do my time like a man, etc., etc.”
Preet Bharara: You can imagine all sorts of speeches you could have given that don’t give you a credibility problem. So I don’t quite understand it.
Anne Milgram: Yeah. I think it’s just an ego thing of not wanting to admit that I had to ask the president, who I have now turned against. So this actually connects a little bit, also, with this next point of conversation which is that Michael Cohen has also sued the president and the Trump organization.
Preet Bharara: How great. For non-payment of Michael Cohen’s legal fees.
Anne Milgram: It’s so great. And when you actually read the complaint, you see that … a couple things that I think are really interesting and sort of go to this point on whether it was crazy for Michael Cohen to have asked for a pardon and I think the answer is no. He should not have lied about it, but it strikes me as consistent with the way he was initially operating, which is he was part of a joint defense agreement with the president. I mean, it wasn’t like he had an indemnification agreement. An indemnification agreement is basically when a company says, “Look, if you do what we’re asking you to do, we will indemnify you,” meaning we will pay your expenses if you get sued and it’s part of your job duty.
Anne Milgram: Now, where they usually fall flat is where people commit crimes outside of the job duty.
Preet Bharara: Outside of the job duty. But so long as you’re doing what is required by your job, the company will take care of you.
Anne Milgram: Including … right. And so, it’s interesting here is was committing crimes part of Michael Cohen’s job duties? Right? I think there’s an interesting legal question.
Preet Bharara: Probably not in a written document.
Anne Milgram: Right? Usually the written documents say, “other than crime,” but then the company agrees to pay the money. And so, Michael Cohen has already had $1.9 million in legal fees paid by Donald Trump and the Trump organization because they were part of a joint defense agreement. So again, we can talk about whether … And he’s now suing because I think he’s got almost $2 million in additional legal bills. And by the way, the Trump organization, not surprisingly, stops paying when he stops cooperating with the government.
Preet Bharara: Right.
Anne Milgram: And so, he’s now come forward and said, “Now, look, you owe me all this money.” He even asks for, and this, I think is pretty bold. In the Southern District case, he’s been required to pay almost $2 million of ill-gotten gains. He asks for that, too, right?
Preet Bharara: What’s interesting about that is the Trump organization seems to have stopped paying Michael Cohen’s legal fees when he began cooperating. That doesn’t explain why the Trump organization historically has stopped paying bakers, florists, contractors, and all sorts of other people who have come forward and say, “These guys don’t pay their bills.”
Anne Milgram: Totally. They never pay their … right? There’s been a lot of public reporting about they don’t pay their bills, and yet they paid Cohen’s first lawyers almost two million, $1.9 million.
Preet Bharara: Yeah, well they have to save their money to buy portraits of Donald Trump through straw purchasers.
Anne Milgram: So, anyway, so the idea that Cohen would have thought he had a chance at a pardon when he is literally still part of a joint defense agreement with the president and the president is paying his legal bills, I mean it’s not crazy to think that the president was going to take care of him. The president was taking care of his representation. And so, again, the problem is him not being forthright about it and it would have been a lot better to just say, “Look, we were all in this together. We were part of this joint defense agreement. I thought that he would consider this and so I asked my lawyers to check it out.” Or, “My lawyers wanted to check it out,” which is also possible.
Preet Bharara: I’m not an expert in these kinds of disputes. How does this turn out?
Anne Milgram: The contract dispute?
Preet Bharara: Yeah.
Anne Milgram: So I think it’s fascinating, because-
Preet Bharara: You’re not answering me again.
Anne Milgram: Well, I read the lawsuit. I have not read the underlying indemnity agreement and I think that a lot will turn on that and a lot will turn on whether or not it’s reasonable to rely on that after you become a cooperator against the head of the Trump organization and so, I have not seen a case that’s similar to this, not surprisingly, at least not yet. And if anyone has seen one, please send it along.
Preet Bharara: Email it to us.
Anne Milgram: Yeah, I mean I was very skeptical of this lawsuit. I also think, though, that the fact that they paid so much already, that certainly weighs in his favor. But I’m skeptical of this.
Preet Bharara: Should we spend a few minutes as we begin to run out of time talking about the craziness of the Jussie Smollett saga?
Anne Milgram: Yes. Yes.
Preet Bharara: So, as people may recall, Jussie is an actor on the show Empire and became nationally known in a very serious way a few weeks ago when he claimed that he was in Chicago at about 2:00 AM, a victim of a hate crime. Smollett is African American and openly gay and he claimed that he had been assaulted by two people who were uttering racial epithets and also homophobic slurs and hit him and then, I think, poured some-
Anne Milgram: Acid.
Preet Bharara: … unknown acid substance on him. And that became a big deal because we’ve seen in various ways true hate crimes on the rise, lots of bigotry presenting itself online and in real life and it was really troubling. And there was no reason at the instant that the accusation was made, to think that it was anything other than true. And so a lot of people spoke about it.
Preet Bharara: I think there is a lesson to be learned here that when accusations are made in any direction, it’s worth pausing and seeing what the facts are and allow them to emerge.
Anne Milgram: Which you and I did. Yeah.
Preet Bharara: Because you never know. It’s worth taking a day or two. And lots of people in lots of circumstances, which is their right, immediately begin to issue statements before all the facts are known. And so people need to be careful about that. But then, it turns out that the allegation is that Jussie Smollett made it all up.
Anne Milgram: Yep, that he paid, I think $3500 or $3000 to these two guys, two brothers, to commit a sort of fake assault on him. And that he had promised them he would give them $500 after as well and that this was all orchestrated. And it’s been publicly reported and it’s tough to know and there’s been a lot of leaks in this case. And I’m always a little bit troubled by that and it’s hard for me to know which facts are accurate and which are not. The indictment, which we’ll talk about in a minute, does not contain many facts.
Anne Milgram: And one of the things that’s been reported is that he felt he was underpaid on Empire and I don’t remember the exact amount of money he was making, but it was an extraordinary amount of money, in my view, per episode, and he was in some sort of dispute with Fox TV or with Empire about that amount. We don’t know if that’s true. That’s been reported.
Anne Milgram: What we do know is that, from the indictment, that the prosecutors and the police very strongly believe that this was all manufactured. And by the way, I’ve had cases when I was a local prosecutor in Manhattan where someone came forward falsely and provided false accusations and look, we move the entire law enforcement apparatus. The police went out, there was an investigation, there could have been a grand jury. I don’t recall specifically, but we spent a lot of time and effort on this case, and then it turned out someone had lied. And we spent a lot of time debating whether that person should be charged and what they should be charged with.
Preet Bharara: Why did you spend a lot of time debating it when it wasted a lot of resources, it causes people who have legitimate claims to be less likely to be believed going forward, particularly in this … Maybe your case was not a hate crime case.
Anne Milgram: It was not a hate crime and there was-
Preet Bharara: It makes you angry. The head of police in Chicago, who is an African American man, I saw do the press conference announcing the charges and he was angry.
Anne Milgram: Yeah. Let me tell you, in our case, and I don’t want to say too much because I don’t recall what the result or disposition, which is the results, of the case was. We believe that the person who had given false information to the police was actually a victim and maybe falsified information here but was a victim at the person’s hands. And so, it was more complicated than just, this case which-
Preet Bharara: It was more of an embellishment than a complete falsehood.
Anne Milgram: Exactly. Exactly. And so where that line is, I think, sometimes we can debate. This, however, there’s not a line here. This is an example of, for media attention or to get … Whatever his motive was, the end result was that he literally falsified an entire attack on him and as the Chicago police chief said, essentially played into questions of bias for race, for homophobia. There was an allegation that the assailant said, “MAGA, Make America great,” implying that they were Trump supporters. And so, he really just went to the basest point that he could go.
Preet Bharara: Yeah, look. I think it’s a serious crime and there’s been some debate about that. But not just from a law enforcement perspective, but from the perspective of caring about hate crime, and caring about true victims being believed, he has now given grist to a lot of small-minded people who love to think that every time someone is attacked because of their race or their gender or their sexual orientation, that it must be made up or it was deserved in some way. And now, everyone can say, going forward … assuming he’s convicted and it’s true … They can say, this is another Jussie Smollett. This is another Jussie Smollett. And I think it’s really terrible.
Anne Milgram: So when I prosecuted hate crimes at the department of justice, it frequently happens that cases are prosecuted but they’re not prosecuted with the hate crimes … under the hate crimes statute or with the additional penalties for hate crimes, because it can be hard to identify someone’s intent and whether they intended something because of hateful motives.
Preet Bharara: Or their motive, right?
Anne Milgram: Yeah.
Preet Bharara: So, intent and motive are different. Intent is that you wanted to do the thing. Motive is why you did the thing and motive is generally … I don’t know if people get this … is generally not something you have to prove in connection with a crime. Why you robbed the bank or why you shot the guy not often needs to be proved. But in a hate crime situation, the motive is the whole thing.
Anne Milgram: Right. And so, a lot of times, the government will decide they can’t prove that. Social media has changed that in many ways and now people have many more records. But it can be difficult to prove and it is really important to be able to prosecute those cases. And so, you’re right about this without question.
Anne Milgram: What do you think of the indictment in the Smollett case?
Preet Bharara: So, it’s very weird. So, I do think if the allegations are true and he made it up, that he should be prosecuted. And I think it’s a serious offense and you want to deter other people from doing it, whether they want to make more money or they want to become famous or any other reason. But then, as you and I were talking before the show, the indictment is odd, because they’ve charged him in 16 counts. Well, multiple counts are not unusual in different kinds of cases and even in false statement cases. And each count is labeled a false report of events. But they have taken one incident where he told a false story, they say, and they’ve parsed it out into eight lies. Eight lies told to a detective and eight lies told to an ordinary police officer. That seems like a lot.
Anne Milgram: Yeah and they combine … Every single offense has the exact same language of offense conduct, which is basically saying he alleged that he was assaulted. He falsely alleged that he was assaulted, that it was based on race and homophobia. And it essentially says the same thing in both, in every single count. Which is unusual.
Preet Bharara: Yeah. So, you and I don’t practice in Chicago, and maybe this is the way things are done. In some articles, it suggested that this is how cases are set forth in documents. But I’ve never seen anything like it. Every single count has the entire full story, which contains multiple lies. I don’t understand how a jury is supposed to deliberate over each count and understand which lie is which. Now, I think at the end of the day, it doesn’t matter so much because the sentence will likely be the same, because it’s sort of one incident and that sometimes prosecutors want to be able to separate out various lies, but they seem not to have done that in the document that you and I read.
Anne Milgram: Yeah. It’s so strange and I have prosecuted in local courts in both New Jersey and New York, and this is, to me, very unusual. I also think that it can’t go to trial like this, or at least for jury instructions, the judge would have to specifically say to the government, which lie does count one go to? Which lie does count two go to? Which lie does count three go to? To your point, I think what they’re doing is trying to make sure that they can get a conviction, because let’s say the jury believes that he lied about the assault, but they don’t believe that he lied about one of the other parts. They could then find him guilty of one of the lies and not the other. And so that’s probably why they’re doing it like this.
Anne Milgram: But I really do not like the way it’s charged that they haven’t broken out the specific lies. And I would say this, at some point, I could see … And this is really just a sort of choice of what the fairest and best way to do it, you could see a few counts of lying here, even three or four counts. But 16 and parsing this out so specifically, you do wonder. And it may be the practice there, but you do sort of wonder whether this is the best way to charge something like this. Because again, you’re charging the same offense.
Preet Bharara: And it’s even worse than that. I don’t know all the facts, but the idea that you’re charging eight lies told to the detective and eight lies told to another human being, the police officer, were they done separately? In other words, consecutively? Or were both law enforcement personnel in the room, in which case, that seems to be double counting. We charged false statements all the time and sometimes there would be four FBI agents and prosecutors in the room. We didn’t quadruple the counts …
Anne Milgram: Right, yes.
Preet Bharara: … because those lies were told to multiple human beings.
Anne Milgram: Me, too. Yes.
Preet Bharara: I wouldn’t have done it that way.
Anne Milgram: I agree. I agree very much.
Preet Bharara: Before we go, Anne, we have some questions from listeners and a number of people have asked a version of this question. This one is in an email from Meredith Famschmidt, who says, “At the end of Michael Cohen’s testimony, he said something about DJT, Donald J. Trump, not leaving even if not reelected, or doing something scary. It was a statement full of foreboding and I wonder what you thought he meant. Yours is my favorite podcast and I recommend it to everyone.” Thank you, Meredith.
Anne Milgram: Thanks, Meredith. Yeah. That was one of the most interesting parts of the testimony and it was sort of a parting shot of the … Even if he loses, he won’t leave because he’s a dictator. Right? And this is what dictators do. They take power and they don’t honor fair and lawful elections. I don’t think that’s true.
Preet Bharara: Yeah.
Anne Milgram: I think if Donald Trump loses, that the institutions in the United States and … even though, I think, we’ve had a fair opportunity to see what I would call lack of courage by a number of members of the president’s own party, I think that democracy … I think, ultimately, democracy prevails.
Preet Bharara: I think so. But you wonder what happens if the voting is close and you have a situation like you had with Al Gore and George W. Bush in 2000, when the election is uncertain and during that period of time … That’s where I think the maximum danger is.
Anne Milgram: I agree with that.
Preet Bharara: You have irregularities in the election.
Anne Milgram: It goes to the Supreme Court.
Preet Bharara: Yeah, you have lies told by Donald Trump. Again, this is unlikely to happen.
Anne Milgram: Yes.
Preet Bharara: But in that circumstance, when you have a sitting president and the outcome of the election is uncertain, who knows what all he would do to remain in power. I think more likely is if he loses the election, he will have spent enough time undermining people’s confidence in the election and faith in the election even though, ironically, he had the benefit of interference in the election in 2016, but he’ll do the same in 2020 to cause people to think it didn’t happen the way it did happen.
Anne Milgram: So, if we just play this out as a chess match for a minute, if it happened tomorrow, the way the Supreme Court is currently constituted, it’s five Republicans, four Democrats, right? I think Roberts would flip and would not allow it to happen. Because another election after Bush v. Gore, that Supreme Court decision, it’s the first time the Supreme Court … Well, it’s maybe not the first time. But it’s one of the most significant times the Supreme Court’s reputation and view from the American people as a legitimate arbiter of problems and controversies, that was seriously thrown into jeopardy. And the court, I think, took a major hit. I think Roberts, who, of course, is a Republican appointee, is the chief justice in America, I don’t think he lets that happen.
Anne Milgram: Now, what happens, though, in this chess game if the president gets another appointment? And then the court swings 6-3?
Preet Bharara: I mean, I think it depends upon what the facts are. It depends upon who has the better argument. And in a close call, the president may get the benefit of the doubt. I just don’t know.
Preet Bharara: I also put some credence in the theory that one reason that Donald Trump may not want to leave office is not just that he’s becoming an autocrat and he likes to stay in power-
Anne Milgram: It’s that he will be prosecuted. Yes.
Preet Bharara: The legal jeopardy to him personally, once he leaves office, doesn’t have the benefit of the famous OLC opinion that we keep talking about, is that he could be prosecuted.
Anne Milgram: I agree with that.
Preet Bharara: And it would be better to remain in office. So, we’ll see.
Preet Bharara: On a slightly lighter note, we got an email from Catherine Rose, who asks the following, “You used a legal term recently that I don’t know the meaning of, and since I’m usually on the go when listening, I can’t look it up. What is the meaning of dispositive? Thank you, especially for keeping me sane these recent months.” So I guess I’ve used that term a number of times, and what I mean by it is simply that some factor in a decision doesn’t settle the question.
Anne Milgram: Right.
Preet Bharara: So, for example, if you brought a lawsuit against somebody and the statute of limitations is five years, and you bring the lawsuit five years and three days after the time of the occurrence, the fact that it’s three days late is dispositive. It settles the whole question.
Anne Milgram: Right. Merriam Webster says the definition of dispositive is directed toward or affecting disposition as of a case. And so, I think of it exactly the same way you do. If something’s dispositive, that means it sort of goes to the ultimate point. And if it’s not dispositive, that means it’s not conclusive.
Preet Bharara: Yeah, but it might be relevant to the ultimate question but whether or not you can proceed with the suit may depend on a lot of different factors. And some factors might be very, very important but not dispositive, meaning there may be other factors … yeah … that can outweigh them.
Anne Milgram: It’s not the only one. Yeah.
Preet Bharara: So just so we don’t leave on a despairing note, Donald Trump remaining in power-
Anne Milgram: Yes. It’s Monday.
Preet Bharara: … in perpetuity. I agree, that at the end of the day, even the supine, spineless folks who had been letting him do his bidding for a long period of time, if there’s a full and fair election in which someone else wins, Donald Trump will be removed from office and there will be a peaceful transition of power, like there has been from the beginning of time as far as this republic is concerned.
Anne Milgram: I agree. Democracy versus Donald Trump, I think democracy wins.
Preet Bharara: Democracy wins.
Anne Milgram: Yes.
Preet Bharara: That’s a good slogan.
Anne Milgram: Yeah.
Preet Bharara: Does one of the candidates, the 300 candidates, use that?
Anne Milgram: I don’t know.
Preet Bharara: Democracy wins. All right. So that’s all the time we have for today. Send your questions to firstname.lastname@example.org.
Anne Milgram: And we’ll do our best to answer them. We love the questions. Thank you.