CAFE Insider Transcript 04/01: Justice Off-Balance

CAFE Insider Transcript 04/01: Justice Off-Balance

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Preet Bharara:              From CAFE, welcome to CAFE Insider. I’m Preet Bharara.

Anne Milgram:             And I’m Anne Milgram.

Preet Bharara:              How’s it going?

Anne Milgram:             Good. How you doing?

Preet Bharara:              I’m alright.

Anne Milgram:             How’s the book tour? You’ve been crisscrossing the country.

Preet Bharara:              It’s week three. I’ve been doing a lot of events. I’ve been to a number of cities. Very gratifyingly.

Anne Milgram:             I saw that you are on the best seller list. Congratulations.

Preet Bharara:              Not that I was paying attention, but it’s at number four.

Anne Milgram:             You didn’t even notice.

Preet Bharara:              I didn’t know. Other people have emailed me.

Anne Milgram:             Who told you? How’d you find out?

Preet Bharara:              My publisher friends.

Anne Milgram:             Called you.

Preet Bharara:              Told me.

Anne Milgram:             That’s great. Yeah.

Preet Bharara:              As my father will point out, there’s room for improvement. There are at least three spaces-

Anne Milgram:             -There’s three spaces.

Preet Bharara:              -Available. So anyway, we’ll talk about the book another time. A lot of news again, additional things to discuss with respect to the Barr summary which he says is not summary of the Mueller report, which we have not seen. Although now we know it’s 400 pages. There are these attacks on Adam Schiff, they share the intel committee. There are charges against Michael Avenatti, who saw that coming. There’s developments in the legal case against Alex Jones and then of course, there’s the craziness with the case relating to Jussie Smollett.

Preet Bharara:              We should dig in.

Anne Milgram:             Let’s talk about the 400 pages because you asked this question last week and I thought it was great. If the report was 40 pages of four pages summaries, like not that bad.

Preet Bharara:              People keep asking the question, do you really think that Bill Barr has distorted the report or distorted the conclusions or misled the public? And my answer to that is, I don’t know that he’s distorting or misleading but the fact of a 400 page report being summarized in four pages, necessarily means-

Anne Milgram:             And not saying it’s a 400 page report and I’m not summarizing it. I think the answer to me is yes, he has distorted it, by not being upfront, even in that and saying look, it’s a 400 page report, you’re gonna get it, but let me give you the high level bottom line of my takeaway. And he did present it, I think, as a summary, and now he says it’s not a summary.

Anne Milgram:             The other thing, I don’t know how you have reacted to this but, as I’ve stepped and thought about it a little bit more, having done a lot of work at DOJ, when I was there, and this is now been pointed out to me and I’ve discussed this with all my fellow DOJ alums. The language we always used when you weren’t gonna prosecute something, was insufficient evidence. There’s insufficient evidence that an offense was committed. All the things that you would usually see in a report, setting out what the legal standard is, talking about the sufficiency of the evidence, none of that is there.

Anne Milgram:             That, to me, makes this so much more political. To not follow the normal processes, just strikes me as, he was trying to define something instead of letting it define itself. I think actually, he has been pretty effective for the president on that. What do you think?

Preet Bharara:              Yeah, I don’t disagree with that. I have a couple other thoughts about how Bob Mueller has gone about preparing the report, since we’ve had a few days to think about it. Last week we taped literally the morning after the summary came out. One is, it would have been possible for Mueller and his team, and we’ve seen this on other occasions and we used to do this in my office from time to time.

Preet Bharara:              Knowing that there’s gonna be some material that cannot immediately be made public or about which there will be a fight. You create two versions. You create the version that you give to the court, under seal. Then you create the version that doesn’t have the grand jury sensitive information, doesn’t have the classified information. And you have that ready at the time you make the submission to the court. I suppose Mueller could have done that and it gives me some comfort that Bill Barr has said that going forward in connection with whatever redaction process, that he will be consulting with his special council, although it appears he didn’t consult with him with respect to the four page summary. So, that’s good.

Preet Bharara:              Do you have any thoughts on why they didn’t prepare in advance some version that could have been made public or made available to Congress right away?

Anne Milgram:             Yeah, I think this is worth digging into a little bit because I’ve had that question on my mind, and the other question I’ve had in my mind is, why did Mueller give Barr a three week run time? And basically tell him three weeks in advance, look I’m coming to you, I’m not gonna make a conclusion. And I think Mueller was probably trying to do the right thing, make sure he didn’t surprise anybody. But I have wondered in my mind, was that a mistake? Because he set up this chain of events where Barr basically decided, great, he’s not making a conclusion, there’s a void into which I can now step.

Anne Milgram:             I don’t wanna say Mueller got played, but I definitely think that Barr and Mueller have known each other for a long time. Mueller is very respectful of the institution, Barr is the Attorney General. And I question the wisdom of that three week lag time. I also do not understand, this issue, the 6E issue, the grand jury material issue, none of that would have been surprising to Mueller and so I could have seen a version of events where Mueller actually went to Barr and basically said, look, here’s what we wanna do. We wanna do a full version and then we wanna do a redacted version or we’ll give you, at the same, an extra copy where we basically show you the things that we think are part of ongoing investigations or our grand jury material or our super classified and shouldn’t be disclosed. What do you think?

Preet Bharara:              I think it may be that Mueller’s philosophy in approach to all of this is, on the biggest high stakes things, where something’s a closed question, I’m not gonna decide. And that’s the reason why he didn’t make an ultimate conclusion on the criminality on obstruction and it may be that’s why he didn’t prepare a separate parallel redacted report. Those kinds of things, he’s coloring within the lines and he’s giving those decisions to other folks. Whether it’s Congress or the Attorney General, I guess.

Preet Bharara:              Now, on the question of, what we’re gonna see, there was a second letter issued by Bill Barr, making clear that there’s a timeline that he says adhering to, so we should talk about that. In which he says, some version of the report will be provided by the middle of April.

Anne Milgram:             Seems like a long time.

Preet Bharara:              So among the things that Bill Barr said is, we should talk about this one sentence. That some people took as a positive sign. I think the better reading is that it’s ambiguous with respect to executive privilege which is one basis in which you could say some information can’t become public. And Barr writes in the new letter, from last Friday, I think, “Although the president would have the right to assert privilege over certain parts of the report, he has stated publicly that he intends to defer to me, Bill Barr. And accordingly, there are no plans to submit the report to The White House for privilege review.”

Preet Bharara:              Does that mean that privilege is not gonna be asserted? Or does that mean that the decisions about privilege will be made by Bill Barr?

Anne Milgram:             Right, and I think it is ambiguous. So my first reading was, oh, they’re not gonna assert privilege.

Preet Bharara:              Right.

Anne Milgram:             And then, I always assume the best.

Preet Bharara:              With these guys, you always gotta read everything 14 times.

Anne Milgram:             Completely, and then when you read it more carefully, I think you’re right, it does leave open that possibility that Barr is just gonna be the one to exert executive privilege. Which would be absurd because not everything the president says or does that his senior advisers say and do is covered by executive privilege and it really goes to this question of whether the conversations are there to provide council and advice. I would be very skeptical of Barr exerting executive privilege without sitting in a room with the president and going through the report line by line.

Anne Milgram:             Remember, Barr is not supposed to be the president’s lawyer. Barr is supposed to be lawyer for the United States of America and all the people. He’s appointed by the president, but the president has his own lawyers. He’s got a White House council who represents the presidency. He’s got his own personal lawyers, Rudy Giuliani and the whole gang. Really, that sentence, I think is potentially problematic.

Anne Milgram:             It’s also a question, I think, of, you and I have talked about this, but a lot of the folks were interviewed, agreed to be interviewed, did not claim privilege but said, I’m reserving privilege.

Preet Bharara:              That’s been reported that they reserve privilege and I suppose if the arrangement was agreed upon, that you could assert privilege later. I do think it’s odd that Bill Barr has said that he’s not gonna submit to the White House. Because there’s no reason to do that. And you would have thought it had the White House council, the new one, said that they want an opportunity to review, then they would have done that.

Anne Milgram:             For privilege. Yeah.

Preet Bharara:              I’m not sure why that was given up.

Anne Milgram:             Yeah, I don’t know. I mean, it’s also at this point, the president has done a victory lap. Again, we haven’t seen the report but Barr summarized it in what he now calls a non-summary summary. So, there is a little bit of the, it does strike me as very odd for the president to come out and say, nothing I said can be disclosed, right?

Preet Bharara:              Right.

Anne Milgram:             So, take out, black out, 350 pages of the 400 plus page report, but I’m innocent. So, I think you can’t have it both ways. I would expect the president here to waive privilege and to allow the American public to see it. Now, that being said, again, what you would expect and what we have been seeing are not the same thing.

Preet Bharara:              Yeah, there’s one in the weeds, legal point on this, there happens to be an opinion that still resides at the Justice Department from the office of legal council. From the summer of 2008 that arose in connection with the Congressional investigation involving the outing of the CIA operative, Valerie Plame.

Anne Milgram:             Right.

Preet Bharara:              In which the Justice Department at that time, took the position, that when Congress asks for information from the Justice Department that’s sensitive, the opinion says it is not sufficient for the committee to assert that the subpoena documents may at some level, relate to a legitimate oversight interest. Remember, Congress has two functions. One of the functions is oversight and take a look at the other branches of government and act as a check and a balance. And obviously the most obvious role for Congress is law making authority, legislative authority.

Preet Bharara:              And his opinion takes the position that in connection with trying to get these kinds of documents via subpoena, it’s not enough that it be an oversight interest. It has to be a legitimate law making legislative interest. I think, and we’ll see how this plays out because The House, as we come into the studio this morning on April 1st, we have an indication that The House is gonna seek to subpoena the entire Mueller report in un-redacted form.

Anne Milgram:             Yep.

Preet Bharara:              Obviously, as a matter of oversight, The House committees have an interest in getting this document. That’s very clear, it’s hard to dispute that. But I think they also have a legislative interest. Depending on what the report found and depending on what level of new information we get about interference in the election and what the Russians did. There’s a legislative interest in figuring out what kind of response there should be, what kind of sanctions there should be, what kinds of legislation might help to protect future elections.

Preet Bharara:              So I think there’s a deep legislative interest, but that’s just an interesting legal fight to think about.

Anne Milgram:             I agree with that and I expect that it will be a legal fight. One of the things that I find surprising is, that obviously The White House and the Attorney General, they’re not crazy about giving the report to Congress, or at least not giving it over quickly. These kinds of redactions can be done fairly fast. When I talked about this last week, it should have been done within a week. They’ve got teams of people available to review it at every level. But, Congress gets it. At the end of the day, whether you like the United States Congress or you don’t, whether it’s run by people of your party or by people of the opposite party, Congress has a valid and legitimate reason to review the report.

Anne Milgram:             I think where it gets interesting particularly is with the underlying information, particularly if it’s grand jury protected material. Barr remains, I think, in the wrong place on the 6E grand jury material, which is to say that grand jury testimony by a witness, grand jury subpoenas issued to get, think about cell phone records or bank records, those are treated as secret unless the Attorney General decides that there’s a reason to provide it to Congress and then gives notice to the court or goes to the court himself and says, look, we wanna waive 6E on this. We want you to basically allow us to share this publicly, which I believe a court would grant.

Anne Milgram:             There’s a lot of still back and forth, but at the end of the day I think Congress gets it, and it feels to me like there’s some delaying happening here in an effort to play a little bit of a game that is not good for the American public. Mostly because I think we should just see the report, be able to have a discussion about what it is and what it isn’t. Then, let Congress decide if there’s additional oversight that needs to be conducted.

Preet Bharara:              My position on all of this when I get asked questions about Bill Barr, and about the what the conclusions are, is a simple one. Let’s see the report, let’s see the report. I don’t really care about these polls and the polls are fickle, but I did note, I think it was this morning or yesterday, a poll came out saying that only 29% of people think that the report clears Donald Trump. Even though we haven’t seen it yet. And that these efforts to denigrate and claim victory and nothing to see here, have largely not succeeded. Is that interesting?

Anne Milgram:             Yeah, it’s pretty interesting. I remember seeing, and again, I also don’t take that much credence from polls, but I remember seeing a poll back probably, I don’t know, December or January that said, everybody wants to see it. Democrats, Republicans, that there’s no question that Mueller should be allowed to finish and the public wants to see the report. I think Mueller has been allowed to finish and now the public needs to see the report. That allows the country to look at what it says, see what Mueller found and what he didn’t find. Congress has a different role than Mueller and so they get to decide, is there a legitimate spot, a point here for oversight, or investigation that Mueller hasn’t done.

Anne Milgram:             Mueller’s standard, even though he couldn’t indict a sitting president under existing Department of Justice guidelines, but his standard is a high one, which is the standard of probable cause a crime was committed and that the president committed it. Ultimately, to be proven with proof beyond a reasonable doubt. That’s a high standard. That’s not the standard that most of the world would think about when you wanna know, is the President of the United States overly chummy with the Russians in a way that’s impairing American security and whatnot.

Anne Milgram:             So, what can Congress do? I assume at some point they’re gonna get the report. They could potentially sue-

Preet Bharara:              Well, first they’re gonna issue the subpoena.

Anne Milgram:             Right.

Preet Bharara:              And I don’t know that that’s gonna go very far because those legal fights between Congress and the Executive Branch, and I’ve been part of a couple of those, they take forever. It usually results in some kind of a negotiated, accommodated resolution. Actually, they’re not even issuing the subpoena necessarily on Wednesday. There’s a vote on whether or not they would authorize the subpoena, and then presumably the Chairman. Jerry Nadler will negotiate and say, can you provide more instead of less? And it’s a shot across the bow.

Preet Bharara:              Given that Bill Barr’s already said that some version of the report will be released basically in two weeks, it depends on how redacted it is-

Anne Milgram:             They have to wait for redacted.

Preet Bharara:              Right, and if there’s a lot, then they’ll fight over that. But, my guess is, who the hell know. My guess is, we’ll see a large overwhelming portion of the 400 page report, I think.

Anne Milgram:             I think so too.

Preet Bharara:              I think it would be not good, and I think it would strengthen the hand of The House Democrats. If 100 of the 400 pages are redacted.

Anne Milgram:             I agree with you.

Preet Bharara:              Right? And so-

Anne Milgram:             Because people always fill those voids with things that are far worse generally, than the actual truth of what the redactions say. So, better to confront it, instead of having people start pretending or try to fill in the gaps of what’s missing.

Preet Bharara:              Yeah, I think that’s right. During the pendency of the report, and this dramatic inflation of things that we’re seeing on the part of the president and his supporters, which we should talk about for a second. There’s been an all out attack on the new Chairman of the Intelligence Committee and The House, Adam Schiff.

Preet Bharara:              And one of the things that they have done is, which I don’t think has happened before, I haven’t seen it, and if it was ever gonna happen, it should have happened with respect to the former Chair, Devon Nunez, who I think scandalized the committee in various ways and was not forthright in various ways. But even then it didn’t happen. But what has happened now, is all the members of the minority, of the Intelligence Committee, which it used to be once upon a time, the most non-partisan committee in Congress because it’s ambit is so important.

Preet Bharara:              You have people like Mark Rogers, former Republican, who ran that committee in a way where there was not so much acrimony.B ut one of the things in calling for Adam Schiff’s resignation, the minority members have said is the following, “The findings of the special council conclusively refute your past and present assertions and have exposed you as having abused your position to knowingly promote false information, having damaged the integrity of this committee and undermined faith in US Government institutions.”

Preet Bharara:              One of the things they keep saying that is terrible and that Adam Schiff has done with his public statements was, say that there’s evidence of collusion.

Anne Milgram:             Right.

Preet Bharara:              We’ve said this 100 times, we can say it again, collusion itself is not a crime. I’ve never said that, you’ve never said that, Adam Schiff has never said that and he’s a former prosecutor and he knows.

Anne Milgram:             Yep.

Preet Bharara:              And by the way, Bob Mueller didn’t say there was no collusion. By the way, Bob Mueller also didn’t say there’s no evidence of conspiracy, it’s simply that it wasn’t established to the degree and standard that is required for a criminal prosecution. And people keep conflating overwhelming proof with evidence.

Anne Milgram:             Right.

Preet Bharara:              And lots of things are evidence.

Anne Milgram:             Completely, yep.

Preet Bharara:              The fact that Donald Trump fired Jim Comey is evidence. You may think it’s not. It’s overcome by other evidence. You may think there’s a mitigating circumstance, but that is evidence. The fact that he told Lester Holt that he had Russia on the mind, is evidence. The fact that Donald Trump stands in front of a whole lot of email and says, hack the emails. The fact that his son takes a meeting and is interested in derogatory information, that is evidence.

Preet Bharara:              Most cases have some evidence. Now, it can be totally overwhelmed by exculpatory evidence, but it doesn’t mean there’s no evidence.

Anne Milgram:             Or there’s evidence and you can’t prove sufficient intent. That the crime was intended and conspiracy obviously, again, it’s a little bit of a different question. But conspiracy is an agreement to commit a crime and substantial steps that are taken to effectuate that crime. What I think is to your point, I think first of all you’re right, there is a significant amount of evidence. How that shakes out when you look at everything together, we don’t know yet. Because we haven’t seen the report, we don’t know everything that Mueller knows. But that is a really important point.

Anne Milgram:             The second point is that the Republican committee members haven’t seen the report either. So one of the things that was crazy to me about this is, and by the way, the Republican members of Congress, I think are very disciplined and they move together as a team. They’re like, I don’t know, a herd or, I don’t know, I was just at the zoo, I don’t know what the right word is for people who stick together. But, they’re like-

Preet Bharara:              A flock.

Anne Milgram:             A flock.

Preet Bharara:              Of seagulls? We need to have one 80s reference. At least every other week.

Anne Milgram:             We do, every episode.

Anne Milgram:             But, they stick together, and this clearly came out as a, from whoever’s organizing them, look, this is what we’re gonna do. We’re all gonna claim this. But number one, they haven’t read the report. Number two, collusion is gonna end up being in the eye of the beholder. What Mueller’s gonna have looked at is conspiracy and whether or not that crime was committed. Mueller uses the word conspiracy, [inaudible 00:19:25] uses the word coordination. He does not use the word collusion.

Anne Milgram:             Third of all, they make these allegations against Schiff that he’s leaking, that are completely unsubstantiated. They have no evidence that there’s information that’s out that’s attributed to anonymous sources in the government. But they make no direct connection to Schiff. They basically throw all this stuff at him that not a single piece of which feels to me right. And they throw it all together and say, for these reasons, you have to resign. Which by the way, is also taking away the right of the people who elected him and put him in that position on an incredibly partisan basis.

Anne Milgram:             It felt to me like an incredibly political shot across the bow. Maybe to check him as he starts to move forward and issue subpoenas and do his own investigations.

Preet Bharara:              Just undermining the credibility of someone because they disagree with you. And I think actually, Adam Schiff, who has been a guest on the podcast, we should make clear, the Stay Tuned podcast, has actually been fairly measured. And the things that he has said have not been belied by the report or anything else. He gave, what I thought, was a really good response and committee. Saying, my colleagues might think it’s okay that the Russians offered dirt on the Democratic candidate for president as part of what’s described as the Russian government’s effort to help the Trump campaign and he goes on to list all sorts of other things that we know happened that are not okay.

Preet Bharara:              They’re actually not okay and I don’t know what the response to that has been. Of course, I think the best argument against Adam Schiff, as usual, the most [inaudible 00:20:58] significant substantive argument was made by the president, who accused Adam Schiff of having a pencil neck. He went on, he provided lots of evidence. He said he’s got the smallest, thinnest neck I’ve ever seen. So, clearly he should have to resign [inaudible 00:21:14] as the Chair.

Anne Milgram:             By the way, Schiff’s response is worth watching or reading and maybe we should post it, but it’s a pretty impassioned and articulate articulation of what you just said which is, basically, even if Mueller did not find the crime was committed, this stuff is not okay. That these are serious ethical breaches. You can think about it as maybe, it may be lawful, but it’s also awful. We talk about that in other contexts that just because it’s not prohibited by the criminal law doesn’t mean it’s a standard of conduct we should accept.

Preet Bharara:              Right. It’s not just Adam Schiff in the crosshairs now. This is not one of those cases where and investigation is undertaken, no final conclusion of a charge is recommended, although we don’t know what’s happening with obstruction. Then, the subjects and the parties who are the object of the investigation say, okay well, let’s just move on.

Anne Milgram:             Right.

Preet Bharara:              No, this is full on vindictive, retaliatory, posturing. Not just by the president but also members of The House. Intel Committee, also it seems by Senator Lindsay Graham who’s the new Chair of the judiciary committee. Of going back and wanting to make life miserable for the people who dared to have the temerity to investigate-

Anne Milgram:             To ask questions.

Preet Bharara:              -real allegations and real smoke, even if at the end of the day there was no final conclusion. I said this many times. You investigate when there is some evidence. And when there is some smoke. The idea that you think in advance that the only valid investigation is one which must necessarily at the end of the day, result in a criminal charge, is a complete perversion of the justice system and it would cause people, and I write about this in the book as well. It would cause people either to bring unjustified charges at the end of an investigation, or to be-

Anne Milgram:             To not investigate things.

Preet Bharara:              -to not investigate.

Anne Milgram:             It’s the complete opposite of how the system should work and look, this is a good example of if Mueller didn’t find sufficient evidence. And again, we haven’t seen his report, so we don’t know. But even just taking the conspiracy question. If he didn’t find sufficient evidence, that is the way it’s supposed to work. You investigate, you find all the evidence, you look at it, and the prosecutor gets to make the first cut decision of does a case get presented to the grand jury in normal circumstances.

Preet Bharara:              Right.

Anne Milgram:             And then the grand jury gets to decide whether it gets charged.

Preet Bharara:              It’s incredibly galling to me, and I don’t get irate that often about these things, but the idea that there is something awful and terrible about this investigation. Which by the way, at the end of the day, according to the president himself, fricking exonerated him.

Anne Milgram:             Right.

Preet Bharara:              But then, there are all these horrible people that need to be investigated. And I don’t know if he includes Bob Mueller among them. But, remember, the Bob Mueller era began when Donald Trump’s own personally hand-picked Deputy Attorney General, Rod Rosenstein, decided in the wake of the firing of Jim Comey and other things, that it looks like maybe obstruction has taken place. This was the view, it must have been the view of Rod Rosenstein himself, appointed Bob Mueller himself, hand-picked guy, and maybe, I’m saying this somewhat facetiously, then begin the hand wringing and begin the, get out the gallows metaphorically speaking, for Rod Rosenstein. Not these other people.

Preet Bharara:              Most of whom already been before Congress.

Anne Milgram:             Right. The other question I would ask you about this is, it feels to me like part of the playbook as well, which always play offense and go on the attack. So, there’s a part of this that feels to me like just, they’re gonna fight it out and they’re gonna fight against the Democrats or anybody who was involved in this as a way to push back future, The House is now Democratic. When this all started, it was a Republican controlled Congress, both The House and the Senate. Now the Senate is Republican but The House is Democrat.

Anne Milgram:             The Democrats have a lot more ability to influence and to gum up the administration. So, some of this feels to me like just an incredible political shove, it’s disappointing because you’re right, it’s playing politics with the justice system. The other thing I should say about the Republican committee member’s statement that I found truly, truly offensive, was an argument that the work that Schiff and Mueller and others have done, was undercutting the institutions. There’s nothing that has undercut the intuitions of American government more than Donald Trump. And what we’ve seen in the past two years, particularly the FBI and the Department of Justice.

Preet Bharara:              Can we move onto something else that probably made Donald Trump very happy?

Anne Milgram:             Yes. Anything other than this probably makes Donald Trump very happy.

Preet Bharara:              Well, he had something else to the extent, there’s a vindictive streak, Micheal Avanatti.

Anne Milgram:             Oh, gosh.

Preet Bharara:              First [crosstalk 00:25:54] presidential candidate charged by two US attorney’s offices on the same day. Now that’s a neat trick. We don’t see that so often.

Anne Milgram:             Yeah.

Preet Bharara:              Every once and awhile we did that. Like, El Chapo I think was charged by four different US attorneys offices.

Anne Milgram:             That’s right.

Preet Bharara:              Not to compare him to El Chapo, but there it is. The Central District of California, the Los Angeles US attorney’s office and my old office in fairly explosive charges, alleging they engaged in extortion and they had tapes and recordings of Michael Avanatti engaging, ironically, in some of the same kinds of, it seems, thuggish behavior that his nemesis, Michael Cohen engaged in-

Anne Milgram:             Yep.

Preet Bharara:              In trying to shake down, according to the indictment, shake down Nike to the tune of tens of millions of dollars.

Anne Milgram:             And this was right before Nike’s quarterly earning statement and on the eve of the NCAA tournament. So, there’s so much that’s interesting about this. First of all, you’re right in saying it does feel a little bit like Michael Cohen, the thuggish behavior. When you think about extortion or black mail, you don’t generally think about a lawyer walking in and acting as a lawyer would do, which is to engage in a settlement negotiation with a company. And then crossing that line.

Preet Bharara:              Right, but he did something more even. As one columnist put it, he didn’t just ask for money from Nike, he demanded that the object of his affection, so to speak, Nike, would not only pay him money but do internal investigation and hire him.

Anne Milgram:             And hire him, right. Which is amazing, yeah.

Preet Bharara:              You have some experience-

Anne Milgram:             Yes.

Preet Bharara:              -in internal investigations. Is that how you came about them? Did you call up the mavericks?

Anne Milgram:             That is a very interesting question. Did Mark Cuban call? No.

Preet Bharara:              Did you say Cuban, I want 20 million dollars.

Anne Milgram:             No, that is not how I did it. No, I was called and was basically asked would I work on an internal investigation to the Dallas Mavericks. I flew down that morning to meet with Mark Cuban and figure out what I have with my co-council, Evan Curtroy, would we have full access to everything-

Preet Bharara:              And you, I’m sorry.

Anne Milgram:             One of the things that’s fascinating about this is, companies do internal investigations all the time and they spend a lot of money on them. This dollar amount seems incredibly high to me, 15 to 20 million.

Preet Bharara:              You need to raise your rates.

Anne Milgram:             That’s what we’ve learned from this.

Preet Bharara:              Then you wouldn’t have to do a podcast with me.

Anne Milgram:             This is the most fun, Preet. Companies do internal investigations all the time, so what’s insidious about this and fascinating about it is that, they took something that’s on its face, Evan and I took something on its face that is legitimate, to represent victim or someone he’s claimed was wronged by Nike and a former employee or current employee. He claims that they were wronged by Nike and to go in and basically say, look, we wanna resolve this. What’s not normal is what you say which is then, by the way I want you to hire me to be the one to conduct the internal investigation.

Anne Milgram:             What’s fascinating about this, is this whole flip to basically say, I want 22.5 million dollars, which does feel like an extortionate demand, 1.5 million which will go to my client, the rest will come to me. And I believe he had a co-council that has been reported that it’s defense lawyer Mark Geragos and that they went in and made this effort to get the money out and the threat was, if you don’t pay us, we’re gonna harm your reputation. So, it’s a fascinating case for many reasons and I think, it’s not the easiest case either, right? I mean, you should tell me what you think.

Preet Bharara:              I haven’t seen all of it, but I think the fact that they have these recordings and they have Michael Avanatti in his own voice saying things like, I’m not effing around and this is how much money I want, will go a good way in a jury trial to persuading people, this was not just aggressive lawyering.

Anne Milgram:             And what kills him I think is the piece that put it over the edge to me is the and hire us.

Preet Bharara:              Right.

Anne Milgram:             If he walked in and said, “Give my client 1.5 million dollars or we’re gonna go public, and by the way, you also need to do an internal investigation and hire outside lawyers.” This is a much tougher case to argue that one 1.5 million is extortion. But it’s the pay me 15 to 20 million dollars to do the internal investigation.

Preet Bharara:              Also, with anybody separate from the potential criminal behavior here, and what I think is a lot of trouble for him, that in an ordinary world, whatever you think of Michael Avanatti’s lawyering skills, and look, they were considerable. He graduated first in his class from George Washington law school, I believe, and he had some success obviously. He’s also engaged in all sorts of terrible behavior if you believe the allegations and I see no reason not to credit them. Although, there’s a presumption of innocence.

Preet Bharara:              He’s not the kind of lawyer that large corporations hire to do quiet, thorough, behind the scenes, internal investigations.

Anne Milgram:             Right, I wonder if he’s ever done one. I mean, I would be curious to look at-

Preet Bharara:              He’s bomb thrower, who practices a certain kind of law. And there are other people like that who practice that kind of law. But the idea that a large fortune 50, I think Nike is, publicly traded company is gonna hire someone-

Anne Milgram:             We would have scratched our heads, you’re right. If that had come out we would have been, thought it was very strange that they would have hired him.

Preet Bharara:              Yeah, it’s basically a way to launder the extortionate payment.

Anne Milgram:             Right, yeah exactly. No, that’s exactly what it is. And he would have given them a ten page report at the end that, I mean, who knows what he would have done but it would not have been likely a real internal investigation.

Preet Bharara:              So, quickly on Alex Jones. Who, he’s going, there’s more and more odious along the spectrum.

Anne Milgram:             Yes.

Preet Bharara:              It started with Devon Nunez and is Alex Jones one of the most odious human beings I think on the planet, who a ran a thing called InfoWars, I don’t know if it’s still on there. I think it’s been banned from various social media websites. But among other things, claimed that Sandy Hook was staged, didn’t really happen.

Anne Milgram:             Yep.

Preet Bharara:              He’s brought a lot of grief and pain to a lot of people. I mean, he’s a disgusting human being, disgusting pig.

Anne Milgram:             I agree, yep.

Preet Bharara:              And, is getting some comeuppance now because there’s been a lawsuit, on the part of the families.

Anne Milgram:             That the Connecticut Supreme Court allowed to go forward.

Preet Bharara:              Which means, what does that mean? It means that my favorite word, if you’re a lawyer-

Anne Milgram:             Deposition?

Preet Bharara:              Discovery [crosstalk 00:32:16] depositions.

Anne Milgram:             Oh, yeah.

Preet Bharara:              And apparently, he has a deposition which has become public in which, this is a great description of how Alex Jones crumbled in that setting by Charlie Warsol of the New York Times, said under oath, Mr. Jones’ tactics fizzle. And the deposition highlights a troubling reality. The legal system may be the only way to de-fang a well-known conspiracy theorist at the height of his powers. He says things like, well I had a mental state that caused me to think that Sandy Hook was staged, et cetera, et cetera.

Preet Bharara:              It goes to a larger point, that I think is interesting about the legal system. You have all these, and I’ll call them clowns because they are, maybe clown is too generous, to describe people like Michael Cohen and the tactics he used to use. Or Roger Stone and the tactics that he used to use, or Paul Manifort and the tactics he used to use, and Alex Jones. Don’t mean to lump them all together but they’re all clowns in the sense that they spat a lot of nonsense, they don’t engage in correct legitimate debate, they yell at you, they vilify you, they go on television that they think they can talk circles around folks because there’s no arbiter.

Preet Bharara:              Then you put these clowns in a courtroom, or at a table at a deposition, where there’s a court reporter. And boy do they shut up. And boy do they not know how to acquit themselves. You had Roger Stone, for example, who is the master of slander and ridiculous nonsense, including towards me. All of a sudden realize that his liberty is in the hands of this no-nonsense judge who he’s before. And he ends up doing the kind of thing that you’ve never seen him do before. Apologizing profusely.

Anne Milgram:             Yeah.

Preet Bharara:              Why did I post that thing your honor? I didn’t mean to do it, it was a mistake. I’m sorry, I’m sorry. You even have, we should come back to this at some point, the example of Donald Trump years ago in a deposition. All of a sudden, doesn’t double down on his lies, all of a sudden, I mean, they look weak and pathetic, which is to correspond with the strength of their arguments when they end up in a court of law. And now we’re seeing that with Alex Jones, too.

Anne Milgram:             Yeah, it’s accountability. One of the things that, the law really is the last place that you can go to hold people like this accountable. There are media companies, there are other internet service providers that are allowing these folks to flourish. There are advertisers that advertise and none of those folks are holding these people accountable as a general rule. So, here we have the Sandy Hook families who rightfully, I think, brought litigation against Alex Jones and have now forced this day of reckoning and accountability.

Anne Milgram:             All that bravado and all that arrogance and all those terrible lies he told about people and their children that he’s now being held in a court of law to have to answer to and he can’t.

Preet Bharara:              Yeah, his tactics don’t work anymore.

Anne Milgram:             Yeah, and he can’t. So he basically says, well, I must’ve had a form of, “almost had like a form of psychosis back in the past where I basically thought everything was staged. Even though I’m now learning a lot of times, things aren’t staged.”

Preet Bharara:              A lot of times.

Anne Milgram:             Right.

Preet Bharara:              Like the moon landing.

Anne Milgram:             Yes. And also the form of psychosis. It’s only in the past. It’s not current, you notice he says, right? So it was like a temporary-

Preet Bharara:              It could have been the nutritional supplements [crosstalk 00:35:29].

Anne Milgram:             That he sells.

Preet Bharara:              Anyway, I just thought that was a good observation to make and you’ll see that going forward.

Anne Milgram:             It’s also an important argument for the rule of law and for laws and why it matters that, look, those families shouldn’t have to go to court to hold him accountable and to have this stop, but the fact that there was no other way to do it and that the law works is, the law as a took can be a really important and powerful thing.

Anne Milgram:             Preet, we have an email from one of our listeners. It’s an email from Robin from Canada. Love the Canadians. Hi, Robin.

Anne Milgram:             “Hi Preet and Anne, I would love to hear each of your thoughts on the recent developments in the Jussie Smollet case. I find it confusing that the prosecutor dropped all 16 charges while citing his community service and keeping his bail bond. It seems to me like they are both acknowledging and dismissing wrongdoing in the same action. Is this a serious breach of conduct as the Illinois Prosecutor’s Bar Association statement makes it seem? Is there any other way he could be prosecuted, or is he in the clear now? Hopefully you can clear up the muddy situation. Thanks.”

Preet Bharara:              Robin, I cannot. There’s a great line in a great movie called Miller’s Crossing. Where a character gives a speech and then asks, “Am I clear?” And the other character says, “As mud.” Look, we should talk about your experiences and maybe there are legitimate factors and reasons not to charge Jussie Smollet, even though it looks like, again, that there’s evidence that he made up the allegation of a hate crime. But, what is jarring to me and something I’ve never seen before, is a sequence of events that unfolded like these did.

Preet Bharara:              There’s an allegation of a hate crime, which people take seriously. Then, there’s an investigation and it appears that it was a hoax, it was made up. And then with Greg Fanfair, there are 16 charges brought by the prosecutor’s office. Now, you could have decided not to make those charges in the first place, because community service was sufficient or because there was uncertainty about the evidence, or because justice wouldn’t be served. But you didn’t do that. You decided to bring these charges in a big huge way, and the police department was with you, and the mayor was with you, not that that necessarily matters, with respect to the mayor.

Preet Bharara:              And then a few weeks later, you drop the whole thing, and you don’t do it on a consensus basis with your law enforcement partner-

Anne Milgram:             No, you sneak in in the middle of the night when it’s not on the calendar and you do it behind everybody’s backs.

Preet Bharara:              In such a way that causes the police department, who is usually your partner in investigating and prosecuting crime-

Anne Milgram:             To scream and yell.

Preet Bharara:              To scream and yell.

Anne Milgram:             Yes.

Preet Bharara:              Put the mayor aside for a moment. I’ve never seen that once, and there have been times, and maybe this happened when you were Attorney General, where there can be a disagreement between the prosecutors and let’s say, the FBI agents or the DEA agents, is there enough evidence to charge? And that decision, by the way, is always the prosecutor’s decision.

Anne Milgram:             And there are always arguments. No one should think that the police and the prosecutors are always completely aligned.

Preet Bharara:              Right, but have you ever had a case where you brought the case, held hands with the law enforcement partner, then a few weeks later, over the objection of the law enforcement partner, dropped the case?

Anne Milgram:             No. I can imagine situations in which you legitimately found out. You found new evidence that you really believed meant that you couldn’t make the case and you could have a dispute with the police officers.

Preet Bharara:              Yes, of course.

Anne Milgram:             And you could all sit in a room and these things can get heated, but it’s a family conversation because you’re all one family and you agree or disagree and ultimately the prosecutor makes the case. But to your point, there is something extraordinarily wrong that happened here and we don’t know exactly what it was, but first of all, there was a rush on the hate crime investigation. There were a lot of leaks, it was high profile case, which they, everyone was pushing very much in the national media.

Anne Milgram:             Then, there was evidence that these two guys were actually hired by Smollet, there was a wire transfer or a check that was paid by Smollet to one of the two men according to the evidence that’s been publicly stated-

Preet Bharara:              Yeah, and they were by the way, African American men.

Anne Milgram:             Yes.

Preet Bharara:              Who were alleged to have not just homophobic but-

Anne Milgram:             Racial slurs, yes.

Preet Bharara:              Racial slurs.

Anne Milgram:             Yes, and so then there’s this push for, okay Smollet said something that was, he falsified this hate crime. They then made a decision to go into the grand jury and it’s important to note that at that point, Smollet wasn’t under arrest. He was a target of an investigation. They were doing interviews, they were gathering evidence. They rushed pretty quickly into that grand jury when he was out. When people are incarcerated and they’re being held on bail, there’s a huge push to go quickly. Here, they put the time pressure on themselves to go fast.

Preet Bharara:              I think most people get this, but just to make it absolutely clear, who goes in the grand jury? The prosecutors go in the grand jury.

Anne Milgram:             Right, to preset evidence. Exactly.

Preet Bharara:              To the extent, there’s a difference of opinion between the cops and the prosecutors. Prosecutors undertook to take the case to the grand jury and put evidence into the grand jury perhaps through cops. But that was their decision and it was their decision to bring the criminal charge, right? The police don’t bring that criminal charge.

Anne Milgram:             Well, the grand jury brings the charge, which the prosecutor presents it and then the grand jury found here, 16 counts of basically that Smollet had lied, made these false statements-

Preet Bharara:              But they only find probable cause to make an allegation if it’s presented to them.

Anne Milgram:             Yes.

Preet Bharara:              So the prosecutor, ethically, is not supposed to be, generally, presenting counts that the prosecutor doesn’t believe are well formed.

Anne Milgram:             Right, there’s investigative grand juries where you see prosecutors go in, for example on police shootings, where there’s no, the prosecutors aren’t necessarily gonna present charges. But here, they definitely went in and they definitely presented these charges for the grand jury to consider and the grand jury indicted.

Anne Milgram:             So, you end up in that situation. There’s also one strange piece here that we should talk about as well, which is the Kim Fox, the elected DA for Chicago, the state’s attorney. She recused on it and gave the case to her first assistant. There’s a weirdness around this because she is the one who’s now been doing the media rounds and it’s like [crosstalk 00:41:26], you cannot have it both ways. You’re either in the case, or you’re not in the case.

Preet Bharara:              Right.

Anne Milgram:             So there is a lot of weirdness around this and I suspect that there’s a piece of this that relates to the fact that she was half in and half out, which you can’t be. Then they go to the grand jury, they get these indictments, and then a few weeks later, all of a sudden, they don’t even dismiss the case, right? There’s a way in which you could see her, the prosecutor or the first assistant saying, look, we think he did something wrong, he should be held accountable, we’re gonna divert him. It’s his first arrest, we’re gonna give him a non-incarceration resolution of the case. We may not give him a criminal record, we’ll give a lesser offense, or we’ll defer it for a year and if he doesn’t get in trouble.

Anne Milgram:             Things like that do happen. But there’s a well-formed process, usually people are interviewed or programs are found for counseling, I mean, the idea of just half walking away by taking his ten thousand dollars-

Preet Bharara:              Yeah, they took the bail money.

Anne Milgram:             Yeah, so it’s like your guilty, but they’re not diverting him to something. They’re not following the process and look, process is your friend in these things, right? There’s a reason that cases are handled a certain way. There are reasons that cases are disposed of on court dates, and instead they didn’t notify anybody. They had it emergency calendared. Let’s point out one other thing here, which is that what Kim Fox says is that Smollet’s attorney asked for the records to be sealed and that Kim Fox had to go along with it. Well you know what? She didn’t have to go along with dismissing the case.

Anne Milgram:             So that’s one of those things where she could have said, look-

Preet Bharara:              And also, she’s recused.

Anne Milgram:             Right.

Preet Bharara:              And then there’s B. Her recusal.

Anne Milgram:             Right, exactly.

Preet Bharara:              Which by the way, also we should point out, I’m not an expert in Illinois law or Illinois ethics principles, but I’ve read, and you and I have both read, that apparently, unlike the case when I was the US attorney in Manhattan, a recusal by the top prosecutor, means a recusal of the whole office and that at special prosecutor has to be appointed. That wasn’t the rule in the Federal system and there was one occasion where I recused myself and then other folks in the office carried on the case, that’s also true right now with Michael Cohen.

Anne Milgram:             Right.

Preet Bharara:              The current US attorney Jeff Berman recused himself, but that case continues to be pursued by that office. But it appears to be different in Illinois and it looks like that wasn’t done properly-

Anne Milgram:             And it looks like she didn’t formally recuse, which would have triggered that rule. Again, you can’t have it both ways. No good comes of this stuff. So, the bottom line here to me, is to say, Robin from Canada, something happened that shouldn’t have happened. They either shouldn’t have indicted the case, if there is a problem in the evidence, which I don’t believe, given what I’ve read, but let’s say there is a problem, either with one of the witnesses, one of the brothers, there’s new evidence that’s been discovered, there’s a problem with one of the police officers, who knows. But if there is a problem, that’s a different conversation but that then, would lead to, I think, a dismissal. If you really believed you can’t prove your case beyond a reasonable doubt.

Anne Milgram:             So I’m suspicious of this. I think something was done wrong here, or many things were done wrong here. But at the end of the day, the real question I think is, was justice done? And it doesn’t feel great. It doesn’t feel, and again, I would not have objected necessarily to an appropriate diversion or other resolution of this case. But, it just feels like it was done behind closed doors in a way that does not give me confidence that it was handled well.

Preet Bharara:              I would have felt better if the person said, if some unrecused person said, you know what? Maybe we rushed too quickly to begin with. And we didn’t really look at the evidence properly and we made an error. It was an error in charging in the first place. This doesn’t say that.

Anne Milgram:             No, and if they had said that, look, everybody makes mistakes, and that would be again, to the benefit of the system if someone was willing to come forward and say that. This is not that. This is a, we’re gonna give you community service and take your bail and dismiss your case. And by the way, we’re also gonna say publicly, that you’re completely guilty. And I’m recused.

Preet Bharara:              And I’m recused. But office is not. Even though it should be.

Anne Milgram:             One of the things that troubles me and I think local prosecutions and local government is so important, that’s where the bulk of criminal cases happen and you have people out there who are watching this and thinking, first what’s happening? Are there two systems of justice? Are there things happening here that are, it makes it look, candidly, it makes it look corrupt. And I’m not sure it is but it does make it look, when people do things in this way, so secretively, it definitely raises this question of like, well why can’t you be transparent and what’s wrong here?

Preet Bharara:              Yeah. As I say often, in the book often, justice must not only be done, it must be seen to be done and when you have these kinds of issues. We are not the type of folks for good or ill, who automatically jump on the bandwagon of criticizing prosecutors. It’s a hard job. We’ve both done it for many years. But this just doesn’t look right to me.

Anne Milgram:             Yeah, I’m with you.

Preet Bharara:              Alright. Very important question from a listener through a Tweet, Sam Rockman, he says, “Hi Preet Bharara and Anne Milgram, is a hot dog and bun and sandwich? Yes or no? Please explain.” Now, it turns out that I’m actually recused from the hot dog [crosstalk 00:46:48].

Anne Milgram:             You don’t eat hot dogs? At a baseball game?

Preet Bharara:              I do, but I’m recused from the question of how you characterize a hot dog. I also by the way, eat hot dogs with no condiments.

Anne Milgram:             Really?

Preet Bharara:              Is that weird?

Anne Milgram:             Yeah.

Preet Bharara:              No ketchup, no-

Anne Milgram:             Apparently, you’re not supposed to eat them with ketchup, but I eat them with ketchup.

Preet Bharara:              I have so freaked out everyone [crosstalk 00:47:11].

Anne Milgram:             There was like, complete silence.

Preet Bharara:              Lets edit that out, I don’t want people to think-

Anne Milgram:             There’s something weird?

Preet Bharara:              That I’m like, un-American because I eat my hot dog without mustard or ketchup, or sauerkraut. I will eat a chili dog.

Anne Milgram:             Oh, that’s a condiment. Kind of. Is a chili dog a sandwich?

Preet Bharara:              I think a chili dog is, I don’t know.

Anne Milgram:             It’s so complicated. I gotta say, I think a hot dog is a hot dog. It’s not a sandwich. I’m just gonna go all in on saying that hot dogs are a unique form of American cuisine that-

Preet Bharara:              What about a burrito? Isn’t that part of the debate too?

Anne Milgram:             Is it? I think a burrito is a burrito. Why does everything have to be a sandwich? And doesn’t a sandwich have to have, let’s be lawyerly, the elements of a sandwich. Element number one, two piece of bread or bun, or roll-

Preet Bharara:              And something in the middle. You just described a hot dog, Anne.

Anne Milgram:             No, the bun is together. At least my hot dogs. I don’t separate the bun. Do you separate the bun?

Preet Bharara:              I think I’ve said enough on the issue of hot dogs, for now.

Anne Milgram:             I rest my case.

Preet Bharara:              Alright. There you are. Happy April Fool’s Day everybody. That’s all the time we have for today.

Anne Milgram:             Write us your questions and we’ll try to answer them.

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, Genouise Berman, and Max Linsky. The executive producer at CAFE is Tamara Sepper. And the CAFE team is Julia Doyle, Calvin Lord, Vinay Basti, and Jeff Isenman. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.

 

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