CAFE Insider Transcript 04/15: “Spying” & Lying

CAFE Insider Transcript 04/15: “Spying” & Lying

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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 are you, Anne?

Anne Milgram:             Good morning.

Preet Bharara:              It is April 15th.

Anne Milgram:             Yes.

Preet Bharara:              What does that mean to you?

Anne Milgram:             It means our taxes will be done today.

Preet Bharara:              Will be done today. No extension.

Anne Milgram:             Not done yet. But they’ll be …

Preet Bharara:              Will you be releasing 10 years of tax returns as a transparent podcast host? Isn’t that required?

Anne Milgram:             Is it 10 years? Is it 10 years?

Preet Bharara:              Kamala Harris released like 58 years of tax returns. And she’s I think only 55.

Anne Milgram:             Huh. That’s interesting.

Preet Bharara:              But if the House Ways and Means Committee were to request your tax returns, would you-

Anne Milgram:             Of course, I’d give it to them.

Preet Bharara:              Would you object?

Anne Milgram:             No, I’d give any … I mean, obviously …

Preet Bharara:              That’s why I think you should be president.

Anne Milgram:             Thanks. Appreciate it.

Preet Bharara:              You’re very transparent.

Anne Milgram:             That’s one check.

Preet Bharara:              All right. So we have a lot of things to go over. All right. We have Julian Assange no longer in the protection of the Ecuadorian Embassy in the UK. We have Roger Stone making some arguments. There’s still, with great anticipation, everyone’s looking forward to the Mueller Report. Bill Barr said some things last week about quote unquote spying. Greg Craig, the former White House Counsel to Barack Obama, was charged with a crime in federal court. Michael Avenatti, more charges. So it just, it goes on and on and on. You want to start with Mr. Assange?

Anne Milgram:             Yeah. It’s a fascinating story. Did you have any sense it was coming?

Preet Bharara:              Well, it’s not completely surprising, because we knew about the existence of a sealed indictment against Julian Assange, because of, there but for the grace of god go I kind of screw up by a prosecutor in the EDVA, the Eastern District of Virginia, which made reference to an Assange indictment.

Anne Milgram:             That’s right.

Preet Bharara:              I did not realize that the Ecuadorian officials were growing quite so sick of Mr. Assange.

Anne Milgram:             Right. [crosstalk 00:01:44]

Preet Bharara:              And their stories about, I don’t know what to make of it. I tried to ignore the stories about the cat, and about the feces smearing. Is that true or is that false?

Anne Milgram:             Oh, I didn’t read the latter part of that.

Preet Bharara:              Yeah, we don’t have to.

Anne Milgram:             I did-

Preet Bharara:              Apparently he was a very bad guest in their embassy.

Anne Milgram:             Oh, okay. Yeah. I do know that the cat has its own Twitter page. And it’s been reported by Wikileaks that the cat is fine, and was taken out, I think, in the fall.

Preet Bharara:              Right. So there’s this debate, people on different sides, saying, “Well, a prosecution of Julian Assange is terrible because he’s a journalist.” Other people say, “Well, depends on what the nature of the charges are, and he’s not really a journalist.” The charges as I read them are pretty narrow, and I think a lot of experts are cautiously approving of the charges, because …

Anne Milgram:             Including First Amendment experts, it’s worth noting.

Preet Bharara:              Yeah, exactly, because the charges so far, and they could be added to, don’t related to mere receipt of classified information or publishing of classified information, but something more specific.

Anne Milgram:             That’s right. And the actual charges, one count of conspiracy to commit a computer crime and a computer intrusion, and this was at the time that Chelsea Manning was an intelligence analyst and was accessing, using her top secret clearance to basically access materials that Manning wasn’t entitled to access or to release, and was providing those materials to Wikileaks. So what’s really interesting about this is that there was a lot of speculation when the rumors of the existing US indictment came out, there were a number of rumors that it would be an espionage charge, and essentially meaning that Wikileaks, that Julian Assange as the leader of Wikileaks, would be prosecuted for running an organization that published confidential, top secret US material. And that gets into the whole Pentagon Papers, the ability of journalists to take … And there’s a lot of precedent in the US upheld by the Supreme Court, of journalists publishing classified information.

What’s … The questions raised about Assange at the time were well, is he really a journalist? And is he … He’s been defined by senior government officials as being part of, an advocate for the Russian government, for example, not being a journalist. But what’s really interesting about this is they don’t charge that, they charge the computer hacking, the conspiracy, because he’s … There’s evidence that he, from this time period in March of 2010, he is trying to help Chelsea Manning essentially with a password to-

Preet Bharara:              To crack a classified password.

Anne Milgram:             Exactly. And also to try to get in to get more additional material.

Preet Bharara:              It seems to me, and I think people are discerning this distinction, there’s a difference between being someone who waits on a corner and a whistleblower comes and gives you a hard drive that has classified information from the CIA or somewhere else, which is not to say that that’s a wonderful thing, and there are lots of issues there, but that’s not criminal conduct. There’s a big difference between that and being the someone who’s not just on the street corner, but goes with the whistleblower, presumed or assumed or self described whistleblower, may not be a whistleblower, and tries to break down the door into the skiff or into the safe or wherever where the hard drive is located. Then the journalist is doing something beyond journalism.

And as you mentioned a minute ago, some significant voices of expertise in the First Amendment community, including Floyd Abrams, who was a guest on this show, expressed some, in his words, relief. He said first a sigh of relief that the indictment seems narrow in scope and was not rooted in espionage act claim, simply based on receiving and publishing classified data. He said second is based on Assange’s alleged activities and personally participating in accessing the classified information and cracking a classified password. But then he also says this note of caution, “Notwithstanding the unique features of the case, much of it is based on not uncommon journalistic conduct, receiving and publishing classified information.”

Anne Milgram:             I think the Floyd Abrams quote is really important, and the conversation is a really interesting one. There’s a line that folks are trying to figure out between what is journalistic organizations legitimately publishing information that is in the public interest where there’s been a breach of confidential information, of classified information, from the US government, by someone else, and there’s no connection between the publication and the breach. Or the connection is that the person who’s breached is giving the information to the journalistic organization. This is different. I mean, this is, in my view, Assange is making an effort to help get that information, right? And it really does cross a line beyond where I think journalists can and should go.

I mean, it’s one thing to be sitting at the New York Times and have the Pentagon Papers related to the war dropped on your desk. It’s another thing to basically go out and try to help someone mess with a confidential, top secret password to break in and get access to that information, and that’s the dividing line here. And I do think the government was really pretty cautious in how they charged this. There is no espionage charge at this time. It’s only the computer hacking. And so, I do think that … There are plenty of people, by the way, we read Floyd Abrams, but there are plenty of folks who have raised alarm, to be fair, and there’s a United Kingdom National Union of Journalists said that there’s a link between the importance of leaked confidential documents and journalism reporting, and the matter in which Assange is treated will be of great significance to the practice of journalism.

Peter Stern, who used to run the US Press Freedom Tracker, said the charge is clearly a pretext, basically saying the government is using this as a way to get to Assange when they really are trying to get him for espionage.

So there will be criticism, but in my view, what Assange did is different than what the New York Times did in the Pentagon Papers, and it’s a really important distinction.

Preet Bharara:              Now, we’ve been discussing the legal distinctions. I think those are important for purposes of the charges being brought. There are other issues relating to Assange that people talk about, and I think they sometimes crowd them into the legal issue when they’re more political and optics issues. And one of those is that Julian Assange is not loved by a lot of people because he claims he’s a whistleblower and someone who wants the truth to come out, and bad conduct on the part of governments to come out. But so far he’s only done that with respect to the US.

Anne Milgram:             Right, it’s true.

Preet Bharara:              And is he a tool of Russia? Does he come out and say things that are bad about the oppressive regimes of Russia and China? No. I don’t think that affects the legal argument, but it does affect the political situation. And then on top of that, some people point out when they say they don’t like Julian Assange, and I concur with these people, that he doesn’t seem to have any care at all about the consequences of what he reveals, and so there have been circumstances, when he was asked about people whose names would be revealed, who are informers in for example Afghanistan, and you would think that a normal human being, journalist or otherwise, would actually express some concern about the lives of those people who were in danger because of the publication of things. He basically said he didn’t care.

Anne Milgram:             Yeah. Yeah. No, he’s been an absolutist on these questions, and he did release, right, the State Department cables. There were a number of people I think internationally who were put in jeopardy based on those leaks. And this is a really complicated space, and he is also obviously front and center on the 2016 election hacking publication of Clinton’s emails, and John Podesta’s emails. So I agree with you, I think the political discussion will remain an important part of it.

What do you think about the president saying that he knows nothing about Wikileaks?

Preet Bharara:              Yeah, so the president …

Anne Milgram:             Can I give you a quote?

Preet Bharara:              Yeah yeah.

Anne Milgram:             “I know nothing about Wikileaks. It’s not my thing.”

Preet Bharara:              It’s not my thing. Although then, I’m sure you’ve also seen the montages, because what we always need is a montage, as is said in a very excellent movie as well, of him saying repeatedly, “I love Wikileaks, I love Wikileaks,” he loved the leaks, he loved the disclosure of Hillary Clinton-

Anne Milgram:             It’s a treasure trove, yeah.

Preet Bharara:              … emails, the treasure trove. So it’s just another example of Donald Trump going back on something. Because at the particular moment that the issue arises, he doesn’t look very good if he embraces what he said before. But we know what he thinks and we know what he believes.

So what happens next? I haven’t looked at the specific issues relating to Julian Assange’s extradition, potential extradition to the US. I know it can take a very long time. We had cases that sometimes took years and years. Every case is different, but we had some experience in trying to extradite folks who were charged in the US from the UK, even though it’s an ally, and they have a lot of ability to put a wrench in the works there. There’s a famous terrorism defendant that was charged by the Southern District many years ago. It took over a decade to have him extradited to the United States. So I don’t know that we’ll be seeing anything immediately. [crosstalk 00:10:33]

Anne Milgram:             I agree with that. He has a hearing coming up I think within a fairly short amount of time, but I had defendants who were charged in a sex trafficking case, they were in Mexico, it took years for them to come to the United States. And so, I would expect that, unless he waives extradition, I don’t think he will.

Preet Bharara:              I don’t think he will.

Anne Milgram:             I don’t think he will. But that’s the only way … One of the things I think is really interesting is there was reporting by Jake Tapper at CNN that Justice Department officials expect to bring additional charges against Assange. So one of the questions in my mind is do they relate to Chelsea Manning, are there any charges related to the 2016 election hacking. I wondered, was there any seizure of evidence? I don’t think so, it looks like they got Assange, they brought him out of the embassy. Was there a search warrant done in the embassy? There’s no evidence of that at this point or any reporting on it. But I have a lot of questions about what other pieces might be out there related to him.

Preet Bharara:              And I think what you can also expect is if there are going to be other charges, they will be forthcoming rather soon, because in connection with the extradition process, typically there’s an understanding between the countries as to what charges the defendant who’s going to be extradited will be facing. In other words, generally speaking, you can’t extradite someone on charges A, B, and C, and then once the person is back in the US, then throw against the person charges D, E, and F, because that could violate the extradition treaty.

Anne Milgram:             Right. And this becomes an issue particularly around … And this is not gonna be a death penalty case, but you’ve seen countries that basically refuse to extradite people because the United States has the death penalty. So you’re completely right that they’ll have to put the charges on the table I think fairly quickly. And by the way, we should say that the US does have an extradition treaty with England, and I would expect that he will be extradited, but I agree with you that there’s-

Preet Bharara:              Don’t know when.

Anne Milgram:             Exactly.

Preet Bharara:              Don’t know when.

Anne Milgram:             What do you think about Roger Stone? So-

Preet Bharara:              I have a lot of thoughts on Roger Stone.

Anne Milgram:             Let me be more specific.

Preet Bharara:              How do you mean? How do you mean?

Anne Milgram:             Let me be more specific. Stone has been asking-

Preet Bharara:              In a popularity context, Julian Assange, Roger Stone. I don’t know, where do you stand on that?

Anne Milgram:             Oh gosh. Oh. You’re asking me a lot of hard questions today.

Preet Bharara:              Luckily, we don’t have to decide.

Anne Milgram:             Yeah. It’s a race to the bottom would be my answer. Roger Stone has been saying, “Okay, I’m going to trial, and what I want is Julian Assange to testify at my trial.” And he said this before Assange was arrested basically under the theory that Assange would say in Stone’s defense that Stone did not … Had no conversations back and forth with him, was not involved in the release of the emails of the hacked Democratic emails, or the Clinton-Podesta emails. And so, Stone’s argument for this, and we should talk about all the pieces of it, but Stone’s argument for this got a little bit stronger with Assange being arrested and now being in this extradition piece, starting this conversation about coming back to the United States, which we both agree he eventually will. What do you think the likelihood is that Julian Assange testifies at Roger Stone’s trial?

Well, actually even let me, can I even ask a question first?

Preet Bharara:              Yeah, sure. And I’ll evade both questions.

Anne Milgram:             Would it be helpful to Stone even, do you think?

Preet Bharara:              So look, I think there’s a practicality issue as we’ve been discussing. Julian Assange will have his own proceedings to be dealing with. He will likely not be in the country. In all likelihood it will take longer for the Julian Assange extradition to be resolved then it will take for Roger Stone to go to and complete trial.

Anne Milgram:             Stone’s trial is set for November, and it’s possible it gets pushed back a little, but it’s likely to go probably in the fall or winter.

Preet Bharara:              I think it’s gonna be difficult. I mean, there’s a mechanism, as you know in federal court for taking testimony through a form of deposition, witnesses who can’t be made available, and that can be admitted at trial, so I guess that’s possible. I don’t know what interest Julian Assange has in testifying. Maybe he would have to be compelled. And ultimately, I don’t know how helpful it would be. I don’t know how credible Julian Assange is.

Anne Milgram:             Right.

Preet Bharara:              And Roger Stone’s defense seems murky to me at the moment.

Anne Milgram:             I think there’s also an issue of him taking the Fifth Amendment, because at this point he’s been charged related to Chelsea Manning, but if we were lawyers representing Julian Assange. Which obviously we’re not, but if we did represent him and there was any possibility that he would say something that incriminated him, I would imagine that you would never let Assange testify, so you would invoke the Fifth Amendment under the US Constitution, which is your constitutional right to be silent. So I think it’s-

Preet Bharara:              Yeah, I don’t know what Assange gains from testifying, and as you point out, probably makes sense for him not to. But look, it’s a little bit of a drama that unfolds at the hands of Roger Stone, like lots of other dramas. He’s also made all sorts of other claims. He’s asking for an unredacted version of the report relating to conspiracy and interference with the election. As has been described by experts other than us, those are hail Mary passes and not likely to succeed.

Anne Milgram:             I do think it would be incredible theater if you had Julian Assange testify at Roger Stone’s trial, so never say never. But as a legal matter, I don’t think it’s likely at all.

Preet Bharara:              So Bill Barr, attorney general of the United States, who is losing some credibility in some quarters because of how long it’s taking to provide the Mueller Report, what kind of redactions we’re gonna see, I don’t know, and then last week, since we were here last, he testified in this odd way saying that he believes there was spying that went on with respect to the Trump campaign. He says it’s a big deal. And there are a lot of issues with what he said, first of which is that he used a fairly pejorative term like spying without any evidence or proof that there was unpredicated surveillance. I mean, when people do surveillance, you do it all the time, it’s not spying-

Anne Milgram:             And it’s part of an investigation, or, yeah.

Preet Bharara:              Yeah, he’s sort of providing … I’m beginning to lose some confidence in Bill Barr for a lot of reasons. We’ll see what the unredacted report looks like and how much is unredacted. But on this he seems to be both taking talking points from the president and also providing talking points for the president. In fact, these unsubstantiated spying allegations that he made in an open forum have been used by the president in fundraising petitions and emails to people. So a guy like Bill Barr, he’s a very careful lawyer, he uses his words carefully. So when he’s loose about his words, I think the presumption is that’s intentional.

Anne Milgram:             One thing about Barr and what he said is that if someone else had said it, one of Trump’s political operatives, we would not have batted an eye. But Bill Barr is the attorney general of the United States. He has access to all of the materials that we’re talking about here. He understands or has access to what the predicates for the investigations were. And it was a pretty stunning moment for the sitting attorney general of the United States to use the word spying as opposed to surveillance, which was, I agree with you it was intentional and does have a negative connotation. And remember, it’s already been publicly reported that the FBI entered and initiated a counterintelligence investigation because of concerns about Russian influence on the American election.

The idea that that would be termed spying on a political campaign, when it was about trying to understand and has been publicly reported to be trying to understand at least from what we know right now whether or not a foreign adversary was trying to influence our election. It’s a stunning thing for the attorney general to do.

My second criticism, in addition to the language, is that he did that thing that I think is amongst the most irresponsible things that people in government can do, which is you walk out and you say, “There’s something there that’s really bad, but I’m not gonna tell you anything about it.”

Preet Bharara:              Well he didn’t say anything.

Anne Milgram:             But he’s saying there were senior members of the … And we can read some of it, but there were senior members of the FBI who might have acted inappropriately. I mean, he’s saying enough to … He’s lobbing allegations that are pretty vague, and pretty high level, but he’s doing it without the willingness to actually say, “Here’s piece one of evidence, piece two of evidence, and piece three of evidence.” And that matters because when you don’t give that evidence, no one in the public can have an opportunity to judge the fairness … It’s just, the attorney general says there’s spying.

Preet Bharara:              Yeah. Let’s look at what he said. Because what he said actually makes no sense to me, and when you’re listening in real time, sometimes you don’t have a chance to focus. So among other things he says, “I think spying on a political campaign is a big deal. It’s a big deal.” And he says, “There are a lot of rules in place to make sure there’s an adequate basis before law enforcement agencies get involved in political surveillance.” Fair enough. Then he says, “I’m not suggesting that those rules were violated, but I think it’s important to look at.” Then he says, “I think spying did occur. I think spying did occur.” Then he says, “The question was whether it was adequately predicated.” And then he says, “I’m not suggesting it wasn’t adequately predicated. I need to explore that.” Then he says, “I haven’t set up a team yet.” Then he says, “I do not view it as a problem that’s endemic to the FBI.”

And I think one of the most wise things that was said about the testimony comes, unsurprisingly, from our friend Ben Wittes, who wrote in Lawfare about Bill Barr’s testimony the following, quote: “They were at once indecipherable and content-less on the one hand, and incendiary on the other hand.” And he’s absolutely right.

Anne Milgram:             He’s right.

Preet Bharara:              I don’t know what the hell Bill Barr is saying. He’s saying there is spying, there’s not spying.

Anne Milgram:             Yep.

Preet Bharara:              I’m not saying that the rules were broken, maybe they were broken, I’m gonna take a look at it. And by the way, it’s also all the more galling when one of the things we’ve been focusing on, and that Bill Barr has us focusing on, is the extent to which you can have derogatory information in the Mueller Report bandied about about peripheral third parties, and how much he cares about protecting those people from that kind of incendiary allegation, and then he blithely goes before Congress and he himself says, “I don’t know, there was spying, I seems like there was spying.”

Anne Milgram:             Completely.

Preet Bharara:              “There’s all sorts of spying.” That strikes me as BS.

Anne Milgram:             I agree. And it’s funny, when you were just going through that, what stuck in my head is that once he said, “I don’t know if it was adequately predicated,” meaning was there sufficient information, evidence to warrant the opening of the inquiry. It looks from the information that’s been publicly released, I would argue yes, at this point. But even the fact … That’s a fair inquiry for him to say, “Was it adequately predicated?” But then he still uses the word spying. And if it was adequately predicated then it’s surveillance.

Preet Bharara:              It’s not spying.

Anne Milgram:             It’s not spying. So he’s playing a very dangerous, very political game that ultimately really hurts the institution of the Department of Justice to me.

Preet Bharara:              Yeah, and it furthers conspiracy theories. In fact with Jim Comey, another person, said something I think is right on point. He says, when asked about the Barr testimony, he said, quote, “I have no idea what he’s talking about, so it’s hard for me to comment.” Us too, although here we are commenting.

Anne Milgram:             But-

Preet Bharara:              Trying to understand what Bill Barr was saying. And I think it’s more alarming, because of my sense that Bill Barr is actually a very careful lawyer who parses words, who hues very closely to rules as he sees them, whether you agree with his interpretation of those rules or not. So for him to throw out these bombs without evidence, without proof that comport with conspiracy theories and the talking points of the president who wants to retaliate against his enemies I think is really unfortunate and should really be criticized by everyone.

Anne Milgram:             So at the very moment that we’re having this conversation, the president is tweeting again.

Preet Bharara:              In all caps, we’re told.

Anne Milgram:             So in all caps, he tweets, “THEY SPIED ON MY CAMPAIGN.” And that-

Preet Bharara:              Wait wait. Say the second part.

Anne Milgram:             “WE WILL NEVER FORGET.”

Preet Bharara:              That’s astonishing. He’s taking something completely speculative and inappropriate said by Bill Barr, and turning it into a statement of fact with emphasis in all caps. And then using a phrase, we will never forget.

Anne Milgram:             Which is one of the most important and sensitive phrases in American history.

Preet Bharara:              In world history.

Anne Milgram:             Yes.

Preet Bharara:              What are the things we will never forget? The Holocaust.

Anne Milgram:             Exactly.

Preet Bharara:              9/11.

Anne Milgram:             Yep.

Preet Bharara:              All sorts of tragic, horrible occurrences in human history. And he’s talking about this in those terms. I think it’s an abomination.

Anne Milgram:             I agree. I agree. And the one question I have in my head a lot about Bill Barr is, I agree with you, he knows what he’s doing, he’s setting it up for the president. It’s like a volleyball game where he’s setting up the shot and the president then has the opportunity to take it. Is he a wolf in sheep’s clothing? Because I agree with you that he is … His reputation is of someone who is cautious, thoughtful, rule of law, and in some ways it’s an incredible mask if what we’re seeing, and I feel like there’s so many examples of him having been extraordinarily political in the past month, and having made decisions that are inconsistent with the way that you would approach issues cautiously, thoughtfully, with the rule of law in mind. So I just sort of … What worries me is that he is someone who’s more articulate, who’s gotten a lot more credit because of his reputation, and then we see him doing these things, and the president is taking it and running with it in a way that is very, very harmful.

If you and I said, the question, would you want the US government to surveil a foreign adversary who’s trying to influence the election, sitting here today I would say yes.

Preet Bharara:              Yes.

Anne Milgram:             If there’s adequate evidence that a foreign government, whether it’s Russia or any of the other countries that we can think about, my answer would be yes, I would wanna know. And that could be into a Democratic campaign, into a Republican campaign, into multiple Democratic campaigns, into multiple Republican campaigns, my answer would be yes.

Preet Bharara:              Yeah. And it seems to me you just don’t throw out an allegation like that, unless you’re clear as to what you’re saying, clear as to what you’re gonna do, and clear as to what the thing is you’re talking about, which he was not on any of those scores.

There’s another indictment, another week, another indictment. Greg Craig, former White House counsel to President Barack Obama, was charged in a federal indictment.

Anne Milgram:             With making false statements under 18 United States Code 1001, the same-

Preet Bharara:              The statute that everyone has become familiar with, and those false statements in connection with whether or not he needed to register as a foreign agent, because he was doing work with among other people Paul Manafort.

Anne Milgram:             In the country of Ukraine.

Preet Bharara:              Which by the way a lot of people have done work for. The interesting thing to me politically, before we get to the legality of it … Some people are so gleefully chanting Barack Obama’s former White House counsel, it’s a Barack Obama person, look, it’s Barack’s guy, it’s Barack’s guy. But what’s interesting about that to me is, well, a couple things. First is, look, it’s proof that the special counsel’s office, which I think spun off the case, and the Justice Department by and large does not care about politics, and if you’re a Democrat or a Republican it doesn’t matter. But the second thing is, this conduct for which he was charged occurred some years after he was White House counsel while he was a private citizen and-

Anne Milgram:             In private practice in law.

Preet Bharara:              In private practice. And in fact, bears a closer connection to Donald Trump than it does to Barack Obama. But you know what? People can gleefully celebrate the fact that someone who once for a year worked for Barack Obama has been charged. And you know what? That doesn’t give him a bye. If he committed a crime, he should be charged, and he should pay the consequences, and we’ll see what happens. Though he is presumed innocent.

Anne Milgram:             He was Obama’s White House counsel the first year. One of the things that’s really interesting about this charge, I had expected that Michael Flynn would also have been charged with this, but he pleaded guilty to 1001, so he was not charged, lying to federal agents in that case. And the allegation here is that Greg Craig lied to the part of the Department of Justice that oversees the agents who are responsible for figuring out have you appropriately registered as a foreign agent, and that he was not honest and forthright in those communications with that office and the National Security Division.

What’s really interesting about this to me is that there is a way in which this law, I mean, there’s been a fair amount of reporting now that this law has not been charged frequently. It’s not the kind of thing that prosecutors have gone out and looked at. But it is an effort by the US government to make sure that if foreign governments are engaged in lobbying or public relations on US soil, that you have to … People in the United States who are working on behalf of the foreign governments have to declare it. So instead of going out to say, “The country of Ukraine is amazing,” and writing an op ed on it, you have to say, “I’m performing work for the country of Ukraine,” and then you go out and say, “The country of Ukraine is amazing.”

I think that this is an interesting political question as well on the importance of this law now, and the fact that the Department of Justice is spinning up to do more of this type of work.

The other thing, did you see the Southern District, the reporting about the Southern District’s involvement in this?

Preet Bharara:              I did. And actually to be clear, like I always am, I’m not privy to the inner workings and deliberations of the Southern District of New York since the day I left that office. But I have some sense of how things would unfold. So the reporting is that the case was presented to the Southern District, and they looked at it, and it sounds like they took a pass. But there’s particular reporting that describes an hours long meeting in Manhattan in early September, presumably of 2018, where in attendance were US Attorney Jeffrey Berman, Deputy US Attorney Rob [Kozami 00:27:43], the office’s chief counsel Audrey Strauss, which all seems plausible to me. And then it says, “As well as more than a dozen other prosecutors.”

So I never had a meeting with a dozen-

Anne Milgram:             That’s a lot. Yes.

Preet Bharara:              A dozen prosecutors in the history of my tenure. So I don’t know if that’s an overstatement, I don’t know if that’s because the Department of Justice headquarters in Washington sent a gazillion bodies to come up to a meeting, which sometimes happens, but I literally never presided over a meeting that had on top of the leadership, 12 additional prosecutors, or more than 12 additional prosecutors. So I don’t know what to make of the reporting.

Anne Milgram:             What’s interesting about the reporting too is that it would be a fascinating question, and it will be a fascinating question, it’s been reported that Greg Craig will go to trial. So we may learn more about this. But it will be a fascinating question if the Southern District did decide there was insufficient evidence and the Department of Justice went forward. The one-

Preet Bharara:              That happens sometimes. And it doesn’t mean that there’s a basis-

Anne Milgram:             It happens in Civil Rights cases. Yeah.

Preet Bharara:              Yeah, there’s a basis to denigrate it. There’s the case that I speak about in the book that we brought against various pensioners at the Long Island Railroad that was fully declined by the Eastern District of New York, and then we charged I think 31 or 32 people with crimes successfully, and I don’t begrudge another office making a different determination. But it’s unusual.

Anne Milgram:             Yes. And again, it doesn’t make it illegitimate, it just raises a question. And one of the things that’s interesting here is that the statute ran on the failure to register as a foreign agent.

Preet Bharara:              By that you mean the statute of limitations-

Anne Milgram:             Yes.

Preet Bharara:              The statute of of limitations expired.

Anne Milgram:             Yes, meaning the amount of time that prosecutors have in which after a crime has been committed in which to bring a crime, and the idea being that there’s a certain amount of time in which the government can charge you, and if they don’t charge you within that window then they don’t charge you. And so, we’ve talked about this, most federal crimes are five year statutes of limitations. It’s very interesting here, because they … That statute runs on charging Greg Craig with failure to register, so they end up charging him with making the false statements about his failure to register, and what his work was at the time.

The other thing that’s a little bit interesting about this to me, Greg Craig at the time was at a major international law firm, [Scadnarp’s 00:29:53], and so it really does … One of the things I’m curious to know is what were there internal processes, and did someone miss this, was it intentional misleading, I mean, there’s a lot there that I think will probably come out during the trial that I would be very curious to see.

Preet Bharara:              Yeah. I’m curious as well.

So now we have a Michael Avenatti update. His presidential campaign, not going so well.

Anne Milgram:             By the way, I have in my hands …

Preet Bharara:              You do, what …

Anne Milgram:             I have in my hands the indictment of the United States of America, plaintiff, against Michael John Avenatti, defendant, and the United States of America versus Roger Stone, Jr. You shouldn’t judge the seriousness of a case by how much the indictment weighs. But they’re both very heavy, and they’re multiple pages. Avenatti’s is 61 pages.

Preet Bharara:              And the one in California has taken on a new dimension of squalor in some ways. In those charges, among other things, prosecutors have said that Michael Avenatti basically pocketed money that he won for clients who were in bad need of getting compensation, including in one case, you almost can’t make this up, for purposes of jury appeal. By jury appeal I mean a jury who wanna hang Michael Avenatti based on these allegations. That, according to the indictment, “Mr. Avenatti is accused of defrauding across multiple matters,” and one of the people who he victimized was a paraplegic man named Jeffrey Ernest Johnson, who won a $4 million settlement from Los Angeles County four years ago, but had only received a fraction of the money through occasional payments that never exceeded $1,900. And the allegation is that-

Anne Milgram:             On a $4 million settlement.

Preet Bharara:              On a $4 million settlement of somebody who was not otherwise in a position to sustain himself. And it says, “Michael Avenatti stole millions of dollars that were meant to compensate his paraplegic client for a devastating injury, spent it on his own lavish lifestyle, and then lied about it to his client for years.”

Now, if that’s provable, if that’s a fact, and that’s presented to a jury, that’s devastating, and I think Michael Avenatti is in a lot of trouble.

Anne Milgram:             It is an incredible story of fraud, and scams, and just … There are five separate victims that are alleged in this. And there are multiple, multiple lies, and what comes across if it’s true is that Avenatti was just taking, doing everything he could to get money for himself at the expense of his clients who were entitled to the money. And it’s an incredible story of greed, and really truthfully a lack of scruples and morals. And there are a few things I found really interesting. One was that the federal prosecutors, I mean, they allege that … And this is the Central District of California. They allege that he stole millions of dollars from five clients, and that he lied repeatedly about his business and income to the clients, to the IRS agent, to creditors, to a bankruptcy court, to a bankruptcy trustee.

In the press conference by the US Attorney’s Office, they basically, they say that he was stringing along his victims to prevent his financial house of cards from collapsing. And it really is a house of cards, and it is, he’s stealing money, he’s paying down his coffee business, he’s paying down … He’s got other businesses. He’s paying down his lavish lifestyle. He has an auto racing enterprise.

I think we’ll see, and I always, you and I both agree that you have to withhold judgment, but the things that are devastating about this, and I ultimately predict Avenatti pleads guilty despite him saying, “I’m presumed innocent,” which of course he is, and, “I want my day in court.” But you have multiple victims, high dollar amounts. There will be records of the financial payments, where they went-

Preet Bharara:              Or non payments.

Anne Milgram:             Exactly.

Preet Bharara:              That’s the thing. You and I are not really in the business of predicting whether someone will be found guilty or not, but we a little bit are, because we comment on legal proceedings and we have some experience. But sometimes when you look at an indictment, and you can sometimes be wrong, and if you confer some trust on the prosecutor’s office that’s making out the allegation, you can tell which claims are gonna be easier to prove than others, and as you’ve just said, when the allegation is this much money came in, this much money was due and owing to a particular client, and there’s no record of that money going to the client, and instead you can trace the money, the follow the money principle, from the defendant who owed the compensation to Michael Avenatti’s account, to some other thing that Michael Avenatti wanted like a car or a plane or a vacation or property or anything else, that speaks for itself. It’s hard to excuse that away, especially if you’re gonna have the client come testify and say in court, “I never got the money.” And there’s no proof otherwise. I don’t know what the defense is.

Anne Milgram:             His defense so far seems to be, “I’ve made a lot of powerful enemies.”

Preet Bharara:              Kind of Trump like.

Anne Milgram:             It is Trump like.

Preet Bharara:              It’s kind of Trump like in the defense.

Anne Milgram:             It is Trump like. It is.

Preet Bharara:              Right, when you really don’t have a defense.

Anne Milgram:             Blame someone else.

Preet Bharara:              Blame someone else, blame the investigators, say, “This is all because I did these things.” I still have enough faith and confidence in the Justice Department, notwithstanding some things you see at the highest level as we discussed with respect to Bill Barr’s testimony, but I have a lot of faith and confidence in the US Attorney’s Office in Los Angeles and the US Attorney’s Office in Manhattan, that they are bringing cases that are proper to bring, and that the law and the facts bear out, and they’re doing it apolitically.

Anne Milgram:             I do as well. And the key point with cases like this, and one of the reasons why I think it’s devastating to Avenatti, is that it’s one thing to say, “I have powerful enemies,” when it’s one of the people you’ve represented who makes this allegation. When you have five, it’s a very difficult argument to make, to basically say, “Every client I’ve represented and gotten million dollar settlements is somehow against me.” I mean, there’s just no … It’s really hard to explain away this volume of victims in a case.

So there are gonna be multiple agents, multiple prosecutors. It rang so hollow to me when I heard him saying it yesterday. And by the way, it is probably true that he has a lot of enemies. That’s not why he’s charged in this case. And I … My read was that it was a strong case for many reasons.

Preet Bharara:              Look, and they might not be done. We saw one indictment, then we saw a criminal complaint in California, and then we see now the indictment from California that adds a number of allegations and charges. It’s unclear how much other bad conduct there is, and it could be even more.

Anne Milgram:             So it may not be over.

Preet Bharara:              And if there wasn’t enough to discuss, we also have this business of Donald Trump’s Department of Homeland Security swatting down the reports that Donald Trump has decided that the people who have been taken into custody crossing the border between the United States and Mexico should be basically airlifted and dropped into sanctuary cities, because there’s lots of issues with the legality of that, the expense of that, the common sense nature of that or non common sense nature of that. And just at the moment last week when a number of folks were batting down that rumor, the president of the United States himself says, “Actually, we’re totally considering doing that. It seems like a great idea.” I don’t know. It seems like an interesting end to a crazy week.

Anne Milgram:             When I first read it in the news, I thought, this can’t really be true. This has to be something that someone said in a meeting that was not thoroughly credited. And I assume some of this is leaking out in the wake of the secretary being fired last week. And so, I don’t know who put it out-

Preet Bharara:              Kirstjen Nielsen.

Anne Milgram:             Yes. And I don’t know who put it out but I felt like, oh … And then, when I saw the president’s tweets defending it and arguing that the United States government has the right to do it, which I do not think legally that the United States government does have the right to do it, in order to have a specific decision to go to cities, there has to be a process, there have to be objective criteria that you set-

Preet Bharara:              And you have to have a reason other than you wanna piss off your enemies. And-

Anne Milgram:             There has to be a real government reason.

Preet Bharara:              Yeah, and rile up your base to stick it to Nancy Pelosi and other people, because you don’t like the sanctuary city idea. It’s another Steve Miller extravaganza, which is just completely, would be hilarious-

Anne Milgram:             If it weren’t true.

Preet Bharara:              … if it’s not true. And so-

Anne Milgram:             It is deeply troubling. This is an area where you think about the president not following the rule of law, and it’s a small example of it, but it’s a really important example of basically saying, “I’m going to change the way the government makes these decisions based on my political enemies, and I’m gonna do it in a way that punishes them.”

Preet Bharara:              It smacks of … Lots of these things, whether you’re talking about the spying allegation, or you’re talking about looking back again at the emails and the constant focus on Hillary Clinton, though she did not become the president of the United States, or we’re talking about the sanctuary city thing, they all smack of base retaliation, political retaliation. And there may be, with respect to some of these things, some arguments that somebody could make. But it always looks like it’s a punishment, whether you take away people’s security clearances because they disagree with you … It always looks like it’s pure power politics, nothing based on principle, nothing based on law, and it makes 37 or 38% of people high five each other, I guess, because to them the president looks strong, and he’s defending himself. But we lose a lot in the process.

Anne Milgram:             And those are the same people who … Like all of us, you don’t want the government to waste money. Trump and his allies have been out talking a lot about waste, fraud and abuse. The idea that you would create a whole thing around this, and potentially spend additional government resources, provide insufficient care, or you move people so far-

Preet Bharara:              Forget about that, even for his own purposes, the idea is he wants to deport these people in an efficient way, and he says that they’re animals or they’re MS13 or they’re criminals, he’s like, “Why don’t we then airdrop them into major cities in the country much further from the border,” how does that enhance national security? It’s all a crock, and-

Anne Milgram:             I thought the best response was from Seattle Mayor Jenny Durkan, who I think used to be-

Preet Bharara:              She’s a friend of mine, yes.

Anne Milgram:             She used to be the US Attorney.

Preet Bharara:              She and I were sworn in on the same day as US Attorney, I in Manhattan, her in Seattle.

Anne Milgram:             She had a great op ed that she wrote where she said, “Here’s a message to President Trump. Seattle is not afraid of immigrants and refugees. In fact, we have always welcomed people who have faced tremendous hardships around the world. Immigrants and refugees are part of Seattle’s heritage, and they will continue to make us the city of the future. What does scare us? A president and federal government that would seek to weaponize a law enforcement agency to punish perceived political enemies, a would be despot who thinks the rule of law does not apply to him.”

Preet Bharara:              And it’s worse. There’s this other story that the president denies, but I, these days, although I have a healthy skepticism of reporting, I tend to credit news outlets over the president, certainly, that apparently he told his head of CBP, Customs and Border Protection, that he should take some actions to close the border, and if there was a problem with the legality of that, and he got into trouble, that Trump would pardon him. And then there’s a suggestion that’s not true, there’s also a suggestion that he was joking. Anything the president says that seems to violate the law or undermine the rule of law or principles of equal applicability of the law, somebody like Kellyanne Conway will come on television, say, “Well, he was just joking. He was just joking. He was just joking about this, and lots of other things.” It’s not a joke.

Anne Milgram:             It’s not a joke. It’s not a joke. To say to a senior law enforcement official, “Go break the law and I’ve got your back,” is an unbelievable thwarting of the rule of law. And it just … It shouldn’t happen. I mean, I know we sound like broken records on some of this, but there were, even in the past week there have been countless examples of where you just watch the president do things like this, and you can’t make jokes like that. Right? I mean, at the end of the day, this is about the way the US government functions, and everyone has to follow the law, from the president of the United States down to each and every single one of us.

Preet Bharara:              We do have one question from a listen, from Twitter, whose handle is @martianfocused, who said, “On a recent CAFE Insider podcast, Anne Milgram referred to the DA and police as a family. This view is troubling, given the rampant police misconduct which goes unpunished due to this coziness. What ways can justice be done in light of this? #askpreet.”

Anne Milgram:             I think that’s a great question, and I would apologize in some ways for short handing the answer, or my reference to the police and prosecutors as family. When you look at it, and I was thinking about it as a large dysfunctional family on Thanksgiving where everyone’s disagreeing. But the reason I think about it as family writ large is that in the ideal world, which we do not live in, the goal of the police and prosecutor should be the same thing, which is to basically find out what happened to pursue truth and figure out whether there’s a just basis for bringing an investigation in a case. And so there should be some alignment, and they should share the same goal.

The truth of the coziness is that there is a relationship. Prosecutors and police fight all the time. I think people probably don’t see the amount of back and forth that goes on between them. But there are certainly a number of issues related to misconduct, brutality, the transparency of the system writ large that I think we’re starting to talk about with criminal justice reform, as at this moment in time. But it’s a fair question of are police and prosecutors too closely aligned? Particularly I think it becomes a relevant case when you think about the same prosecutor who works with the police every single day, then going out and prosecuting the police. And it does happen, but it isn’t … There isn’t the same level of transparency over complaints brought against law enforcement that you would see in a system where the people did not require a close working relationship day in and day out.

It’s a fair question, and I think it’s … I’d love to hear your take on it.

Preet Bharara:              Yeah, look, I think it’s a complicated relationship that prosecutors have with police or FBI agents and their law enforcement partners because remember, in most of the cases, it’s a law enforcement agency and agents who do the on the ground investigation, and public safety would not be accomplished if there was not some close alignment between the prosecutor and the cop. And you’ll see cases where people will raise eyebrows when there seems to be a huge disconnect, as for example we’ve discussed on this show in the Jussie Smollett case, where you have the police force saying, “I don’t understand what’s going on, this is a terrible thing that the charges were dropped, which is why this came up in the first place,” where the prosecutor said, without I think adequate explanation why they were dropping the charges.

I think clearly prosecutors and agents and cops need to have an arm’s length relationship, because of abuse and because of misconduct. My [inaudible 00:44:41] I think we charged 19 or 20 cops in different circumstances, and we also charged FBI agents with crimes and DEA agents with crimes. And we thought we had a sound footing to do those things even though in most of the other cases, we were aligned and on the same side. So you have to have that distance, you have to have that arm’s length nature.

Anne Milgram:             I think it’s easier on the federal side as well. I mean, I was in federal civil rights, and we did police misconduct cases, which help local jurisdictions enormously, because they are in the weeds day in and day out with local law enforcement. When I was AG and we were overseeing the Camden Police Department, we had two officers engaged in a series of horrific crimes against people in Camden, and the feds handled that case, and that was very beneficial. And I’m not saying states and locals can’t handle it, but there is an inherent conflict that I don’t think we’ve been as open in talking about until recent years.

The other thing I would love to see, I would love to see better data systems around reporting of misconduct, reporting of, if a court makes a finding against someone, I think we have not done a good enough job tracking and being transparent where there are issues. And so, in New Jersey, one of the newspapers did a great … They took all the data and they put it up, and they, basically you could look up your police department and see how your police department was ranked in terms of allegations of misconduct. It’s a fascinating thing, and it’s already changing behavior. Nobody wants to be at the top of that list as the police department that is someone who has eight complaints against them is never taken action, and there’s a series of what may or may not be problems. But it certainly raises questions and inquiry when you see the data like that versus having it all under cover of the night.

Preet Bharara:              All right, that’s all the time we have today for Insider. So send us your questions to insider@cafe.com.

Anne Milgram:             And we’ll do our best to answer them.

Preet Bharara:              Great.

Anne Milgram:             Great to see you Preet.

Preet Bharara:              Great to see you Anne.

Hey folks. Exciting news from the CAFE headquarters. Last week we launched the CAFE Brief. It’s a free newsletter that recaps news and analysis of politically charged legal matters, sent twice a week. Sign up to receive it at café.com/brief. That’s café.com/brief.

This is the CAFE Insider podcast. Your hosts are Preet Bharara and Anne Milgram. The producers at Pineapple Street Media are Cat Aaron, [Dena Weiss-Berman 00:47:02], and Max Linsky. The executive producer at CAFE is Tamara Sepper]. And the CAFE team is Julia Doyle, Calvin Lord, Vinay Basti, and Jeff Eisenman. Our music is by Andrew. Thank you for being a part of the CAFE Insider community.

 

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