Preet Bharara: From CAFE, welcome to CAFE Insider, I’m Preet Bharara.
Anne Milgram: And I’m Anne Milgram.
Preet Bharara: Hi Anne.
Anne Milgram: Hey Preet. How is London?
Preet Bharara: Thank you for asking. I was in London last week to promote my book, and it was great. I had a good time.
Anne Milgram: Did you do a live show there?
Preet Bharara: I did do a live show there.
Anne Milgram: And did people laugh as much there as they laugh here? Does the humor translate?
Preet Bharara: Politely.
Anne Milgram: Politely.
Preet Bharara: You know there were a lot of Americans in the audience.
Anne Milgram: Oh.
Preet Bharara: There were a lot of I think, but also of Americans.
Anne Milgram: That’s nuts.
Preet Bharara: I will tell you that I was there long enough, but I can now do a full English accent.
Anne Milgram: Let’s go. You wanna do the whole-
Preet Bharara: Well, I don’t want to embarrass you.
Anne Milgram: Why would that embarrass me?
Preet Bharara: Because I will then sound incredibly more intelligent. I feel very dumb in London.
Anne Milgram: It’s true.
Preet Bharara: With all the British. Do you feel that way?
Anne Milgram: The accents are great.
Preet Bharara: Even people I think-
Anne Milgram: It sounds very-
Preet Bharara: With mediocre intelligence sound very-
Anne Milgram: Very diverse smart.
Preet Bharara: Very smart.
Anne Milgram: Yes.
Preet Bharara: I know. Now it’s [inaudible 00:00:48] in America, where I can feel sort of generally adequate once again. So, a lot of stuff in the last week. I guess we can preview the testimony or not of Bill Barr coming before both the Senate and the House. Rod Rosenstein, the at some point outgoing Deputy Attorney General, gave a speech, did a lot of talking, settling some scores. The talk he gave last week, we had a brilliant battle between Congress and the White House over what kinds of documents they can get. There’s remaining issues relating to the Mueller Report, Trump has been tweeting about impeachment, there’s this weird obstruction case brought against sitting local judge in Massachusetts, so there’s a lot of stuff.
Preet Bharara: But we should begin as we too often do, both on this show and on Stay Tuned with another tragic event, another tragic shooting over the weekend.
Anne Milgram: Yes. So, on Saturday in San Diego one person was killed, three were injured in the Poway synagogue shooting, by a self-described young man who is a white supremacist and follower, a disciple I would say I guess of Hitler and other extremists. And, what’s really tragic and heartbreaking is that we keep having the same conversation, and the fact that we have in recent days coordinated attacks on Christian churches on Easter Sunday in Sri Lanka, with a huge death toll last month, dozens of people being killed in an attack on two mosques in Christchurch, New Zealand. And, the tragedy took place on the sixth month anniversary of the attack on the Tree of Life synagogue in Pittsburgh.
Anne Milgram: And so, we are seeing just a devastating amount of hate crimes.
Preet Bharara: In houses of worship.
Anne Milgram: In houses of worship with assault rifles.
Preet Bharara: AR-15’s.
Anne Milgram: Yes. It’s a miracle here that more people were not hurt and injured, but it is a worldwide problem and I saw one woman was talking about her mom was a holocaust survivor, and she never went to synagogue, she never put herself in any place where she could be the subject of hatred based on her religion again. And the daughter who’s been going to all these synagogues said, “I used to not believe that that was a right way to operate, and now I question that.” And that is a heartbreaking way for people to feel, that they’re not safe in houses of worship of all kinds.
Preet Bharara: And I also think, you know, there’s this debate over whether or not political leaders based on their rhetoric or their refusal to criticize certain kinds of rhetoric, whether they’re responsible, I don’t think you can go so far as to say that, but I think when you have repeated incidents like this, that are committed at the hands of people who are haters of others based on their religion, or on their skin color or anything else, that it behooves everyone to speak I think more openly about these things and more critically about these things. And to be explicit and clear, you know, no hedging, no dog whistles, none of that.
Anne Milgram: Yeah. And there’s indications that this young man posted on at least one internet site, it’s been shut down now, but there are warning signs and indications and people need to come forward also immediately, because there’s a level of sort of hatred and radicalization that we’re seeing that, you know, I think this is the sort of fourth time we’ve started this show with this conversation, and it’s really … I always like to think, “Well how does this stop? How do we get to a point where we’re not having the same conversation again?” And right now I’m concerned that there’s, that it doesn’t appear to be an end in sight.
Preet Bharara: Yeah. Well I’m sure we’ll be talking about this again, we’re talking about reasonable gun laws again. Maybe we should have Shanda Watts back on, who has a new book coming out, who came on after Lochlan last year.
Preet Bharara: So, speaking of law and law enforcement, the Chief Legal Officer in the United States of America, Bill Barr, who according to lots of people has been plummeting in his credibility, and there have been people, you and me included I think, who gave him a little bit more of the benefit of the doubt, couple of months ago, and I think in part that was at least in my head, a function of his being such a step up in terms of experience, seasoning, credibility, intellect, from the acting Attorney General Matt Whitaker, but, you know, just because he’s smarter, doesn’t mean necessarily that he’s better for the rule of law.
Preet Bharara: And so, what is happening this week, he’s been invited to testify before the Senate Judiciary Committee, and also before the House Judiciary Committee, the Senate hearing on Wednesday, and the House hearing on Thursday, and there has been some reporting that Bill Barr is not happy, even though he’s the Attorney General of the United States. With how the mechanics of questioning will go, I think Jerry Nadler of the Chair has suggested that after the rounds of five minutes, which as you and I have discussed, doesn’t yield a lot of light, sometimes heat and sometimes not even that. Then after that there will be what a lot of people have clamored for, and that is, you know, sort of a substantial questioning period by counsel, staff counsel.
Anne Milgram: Right. 30 minutes.
Preet Bharara: 30 minutes by-
Anne Milgram: Each side.
Preet Bharara: Each side. Yeah. And, according to the reports that we’ve read, Bill Barr is balking at that. That’s kind of outrageous.
Anne Milgram: It’s completely outrageous. Well first of all, going back to where you started, which is that were we snowed a little bit by Bill Barr? I think you’re right, that there was compared to Matt Whitaker, and all things are relative, when he was first named as someone potentially for that office, he was an alumni of the Department of Justice, he’d been a prosecutor, he had a lot of credentials you and I would look for in a candidate for AG that Whitaker didn’t have. But once the memo came out in which it was clear that he had sort of in my mind made up facts in order to come to the conclusion he wanted to come to on the obstruction charge-
Preet Bharara: You mean that summary? It was in the summary?
Anne Milgram: No, even before that. During the summer.
Preet Bharara: Oh, the initial memo.
Anne Milgram: The initial memo. I think we started to see the seeds of what we now see, which is just someone who has done an extraordinary of things that I think are very harmful to the Department of Justice, and had been misleading to the American public.
Anne Milgram: Now, on the question of how they’re gonna question him, finally, I mean and all I could think was, “Thank goodness,” when I saw that. Because you and I have talked about this before. A lot of the members don’t have expertise or experience in how you question witnesses and how you gather information and, the second piece is, five minutes isn’t enough time at all, even for the best questioners. It would be really hard to do a good job.
Preet Bharara: Well, for five minutes, we talked about this a million times, and it’s almost infuriating. One problem is, there’s no continuity, because each member has his or own particular things that he or she wants to ask, so you could imagine a chain in which the one member picks up where the last member left off, but it doesn’t work that way in part because she would zigzag between Democrat and Republican, and each side has a different agenda. And otherwise, any witness of reasonable intelligence can just go on and on and filibuster for five minutes and get through it, and it’s not helped by the usual practice we see of members talking more in the predicates to their question than sometimes there is enough time for the witness to answer.
Preet Bharara: So, five minutes doesn’t do anything at all.
Anne Milgram: And the idea that the sitting Attorney General of the United States is afraid to be questioned by a committee staff person for a half an hour, it really-
Preet Bharara: It’s a bad look.
Anne Milgram: It’s a bad look, and it’s one thing to go back and forth on the substance and say, ” I think it’s fair for you to ask me about this, please don’t ask me about that.” I wouldn’t agree with that here, but it’s commonly and you’ve seen this firsthand, as have I, committees will negotiate on, okay what’s the scope of the testimony?
Preet Bharara: Right.
Anne Milgram: It adds to the process that the committee gets to take to get the information. You and I talked about this before we went on air, but a lot of folks have noted that Christine Blasey Ford, when she came forward-
Preet Bharara: Was she the Attorney General of the United States?
Anne Milgram: She was not.
Preet Bharara: Is she a lawyer?
Anne Milgram: She was a professor.
Preet Bharara: She’s a professor?
Anne Milgram: She’s not a lawyer.
Preet Bharara: And she subjected herself-
Anne Milgram: To questioning.
Preet Bharara: To questioning from an outside counsel, right?
Anne Milgram: Yes. And even more of-
Preet Bharara: In fact-
Anne Milgram: An outside counsel, someone they brought in for this purpose, from I think Arizona-
Preet Bharara: And that outside counsel was in fact a sitting prosecutor, was she not?
Anne Milgram: Yes. A local prosecutor of sex crimes. So, they brought her-
Preet Bharara: I will say by the way, these [inaudible 00:08:44], that was not a very affective example [inaudible 00:08:47] of the witness. But still-
Anne Milgram: But still they made a decision.
Preet Bharara: It was a lay person who was under tremendous scrutiny in a unbelievably fraught, high stakes environment, you’re a non professional witness.
Anne Milgram: And the committee decided they needed that expertise, that they were not equipped to do the questioning. And here, for-
Preet Bharara: The contrast is appalling.
Anne Milgram: Right.
Preet Bharara: But in fairness further, the reporting I saw, it did make it clear that one of the things he’s objecting to is committee counsel being able to ask questions, but I think there’s another sticking point too, and I don’t know which one is more, at least then it has to do with committee counsel asking questions, I think it’s outrageous and absurd, and quite frankly pathetic. Pathetic for someone-
Anne Milgram: Unbecoming. Unbecoming of the Attorney General.
Preet Bharara: Of his, for his stature to say, “I’m not gonna subject myself to that.” And it says a lot about him. The other sticking point appears to be whether or not he will agree to go into executive session, meaning closed session, to talk about certain more sensitive aspects of The Mueller Report.
Anne Milgram: The redacted sections.
Preet Bharara: So, what’s gonna happen? I guess Jerry Nadler has suggested that if there’s no compliance, and he insists on doing the hearing the way he wants to do it, which is his prerogative as the Chairman, can issue a subpoena. So that’ll fix everything right?
Anne Milgram: Has anyone ever subpoenaed the Attorney General of the United States to come to Congress? I don’t know.
Preet Bharara: Well yeah, well yes, well Eric Holder was subpoenaed in the department-
Anne Milgram: Right. Fast and furious.
Preet Bharara: Fast and furious for documents and various other things. And then that’s a good example, so that people don’t get their hopes up that this gets resolved very quickly, and people ask the question, “What’s the point of subpoenas if they’re hard to enforce?” Like generally, they’re more enforceable, in your prior life and my prior life, in garden variety matters, you could-
Anne Milgram: In a criminal case.
Preet Bharara: In a criminal case you can pretty quickly get a subpoena enforced. Here, and this might sound odd to a lot of people, the way the power that Congress has is to hold the recipient of the subpoena, you know, the non responsive party, in contempt.
Anne Milgram: And it could be civil contempt or criminal contempt.
Preet Bharara: And if it’s criminal contempt, what do you do? The process is you then refer that prosecution to who? Who?
Anne Milgram: The US Attorney’s Office for the District of Columbia.
Preet Bharara: Which is within?
Anne Milgram: The United States Department of Justice.
Preet Bharara: Which is led by?
Anne Milgram: Bill Barr.
Preet Bharara: Oh my goodness! How does that, holy crap.
Anne Milgram: How does that work, right?
Preet Bharara: How does that work?
Anne Milgram: And then, there’s a-
Preet Bharara: Can they call Mueller, can Mueller do that thing? No.
Anne Milgram: Can we have an independent? There’s a-
Preet Bharara: Look, and again, when administrations have their own Attorney General and there’s a contempt of Congress, generally speaking, the Department of Justice will not pursue the criminal contempt. And, you know, Eric Holder was held in contempt of Congress. And no prosecution was pursued because the local US Attorney did not pursue it. And, by the way, I think it’s true, even if he did pursue it, it’s a misdemeanor.
Anne Milgram: It is a misdemeanor, punishable up to one year in jail. And there’s also an example that I read recently where current Supreme Justice Neil Gorsuch’s mom ran the EPA at one point in time, and she herself refused to testify or provide documents to Congress. She was held in contempt, it was sent to the DC US Attorney’s Office, and they also did not prosecute. So, there is-
Preet Bharara: So, what are you telling listeners who are like, “Well how does this work in democracy?”
Anne Milgram: Right.
Preet Bharara: They’re throwing up their hands, if people have these powers, what’s the point?
Anne Milgram: The other way that can be pursued is civil contempt, where it gets to a court much faster, and there is a court that will hear the question of contempt. The difference there is that, you know, when you think about criminal you’re talking about taking away someone’s liberty, if you’re convicted of the misdemeanor you could be sentenced to up to one year in jail, whereas with civil it’s a daily fine. And that fine is decided by the court. And so, it’s a much quicker route to go to civil contempt route, given what you and I have just said about the department of justice not bringing those charges, and the fact that Bill Barr of all people is never gonna let, in my opinion, never gonna let the DC US Attorney’s Office find himself to be in contempt.
Preet Bharara: Yeah. No conflict there, right?
Anne Milgram: No conflict. Or Rod Rosenstein, who we’ll talk about in a minute, is never gonna find, or anyone who’s sitting in the Deputy AG position isn’t gonna find that. And so, I think civil contempt is the better route.
Anne Milgram: But you raised one of the bigger questions in my mind after last week, which is the stonewalling effort by the administration, just across the board. First we’ve seen examples of them not answering letters, requesting documents, providing access to President Trump’s lawyers to the redacted version of the report before it was given to members of Congress, refusing to have people testify. We had last week where Carl Klein was initially not gonna be permitted to testify, some of the Republican Senators have now stepped in to try to facilitate his testimony. But by large we’ve just seen a blanket resistance to any oversight. It’s not just a conversation about let’s negotiate what it should be.
Preet Bharara: Very few administrations when presented with an opposing Congress, the Congress of a different party, House or Senate or both, never satisfy Congress’ appetite for oversight and for documents and for materials that you see all the time. What I think is different now is both will see in the actions, but certainly in the rhetoric, and it’s early yet, the words coming out of President Trump’s mouth are not suggestive of picking and choosing battles and saying, “Well here is over reach, and there, you know, we can reach an accommodation.” He’s basically saying, “I was exonerated by Mueller,” which is not true, “This has all been a witch hunt and a hoax,” also not true. “I am now gonna take the position no more, no mas, and we will oppose everything.”
Preet Bharara: I think he literally used language like that, you know, generally broad language, basically suggesting that one branch of government has no more authority over him.
Anne Milgram: Right.
Preet Bharara: And maybe that’s a politically winning rhetorical strategy for him, at least with his base.
Anne Milgram: But it’s also an imperial presidency, and it-
Preet Bharara: Yes it is. Say that again.
Anne Milgram: It’s also an imperial presidency, and it will be bad whether the President is a Democrat or the President is a Republican. There’s a reason that the constitution imagines there being these checks and balances. And, one thing we should talk about for a moment is that 1982 memo, I think it’s called Reagan Memo or the Reagan Doctrine, which was under the Reagan administration. The executive branch was given a directive from the White House saying that, okay sometimes we’re gonna invoke executive privilege, but as a rule we should cooperate with Congress as much as we can, and we should provide information when it’s requested, and if you have that and wanna read a little bit of that …
Preet Bharara: You know, we actually have excerpts from the very memo that you so astutely cited just now. The memorandum which by the way remains in force, states that, “It is executive branch policy, to comply with Congressional requests for information to the fullest extent, consistent with the constitutional and statutory obligations of the executive branch.” Now, that’s a general principle of compliance, it can be swallowed up by a particular view of what the statutory obligations are and what the constitution provides.
Preet Bharara: And so, when you have someone like Bill Barr, who takes a very sweeping view of those kinds of things with respect to the executive branch, they can sort of look at you with a straight face and say, “We are complying, but the requests are over reaching and go outside of what is permitted.”
Anne Milgram: Yeah. And there’s a part in the memo later that says, “Historically good faith negotiations between Congress and the executive branch have minimized the need for invoking executive privilege, and this tradition of accommodation should continue as the primary means of resolving conflicts between the branches. And so, they understand that-
Preet Bharara: [crosstalk 00:15:54] over a beer. You guys had a beer summit.
Anne Milgram: Didn’t have beer summit. There’s one Supreme Court Justice that would like to attend that. Sorry. Sorry, I couldn’t help myself.
Preet Bharara: Wow. We haven’t, I believe we-
Anne Milgram: We haven’t gone-
Preet Bharara: Haven’t had a Brett Kavanaugh-
Anne Milgram: Or a beer joke.
Preet Bharara: Beer joke in many weeks.
Anne Milgram: We were overdue. But there is a part of the memo that says, it recognizes that they’ll be times where there will be an impasse, but it finds that they should be rare and limited to compelling circumstances, and that is the exact opposite of what the President has said that the administration will do. And it really does impede the ability of Congress, it happens under both Democratic and Republican administrations, Congress gets the opportunity to ask questions about sensitive matters, and we’ve talked about Benghazi, we’ve talked about Fast and Furious, the ATF. Benghazi of course with involving Secretary of State Hillary Clinton, Fast and Furious involving then Obama Attorney General Eric Holder about a ATF operation gone terribly wrong.
Anne Milgram: It really does raise a fundamental question of how you see separation of powers in the branches of government. I don’t mean to go all constitutional on you, but this-
Preet Bharara: No, I like, that’s what this show is all about.
Anne Milgram: This is really troubling to me as a sort of question of democracy.
Preet Bharara: So, since we’re on the subject of what people can be compelled to testify about and the ways in which you oppose subpoenas and oppose testimony, there’s this issue of executive privilege that keeps being raised. And executive privilege is a real thing, and it can be assertive in good faith, the principle being that members of the President’s staff should be able to give free and clear advice without worry, that that advice which is confidential and given very candidly in situations of great national import, that that’s not gonna be thrown back in their face, because it will become immediately public.
Preet Bharara: However, it sometimes is asserted over broadly, and here, sort of a legal issue that’s interesting to talk about, and that is whether executive privilege with respect to these matters that are sensitive to the President, he doesn’t like being talked about now, have been waived. Meaning that they talked about it some other place, so they can’t assert it now, the privilege now. And there are two times when they had the ability to assert the privilege and they did not.
Preet Bharara: One, as we’ve talked about, is when people like Don McGahn and other members of the White House were not only allowed and permitted, but actually directed to cooperate with the Mueller investigation, and they withheld any claim of privilege. And according to some reports said, “Well we reserve the right to assert that later,” and the time to have asserted the executive privilege later was when they released the Mueller report. In not asserting executive privilege with respect to all those things that are in the Mueller report, conversations between Don McGahn and other officials and the President, Reince Priebus and others, my view, I think it’s the majority view and I think it’s your view, the cat’s out of the bag.
Anne Milgram: Completely.
Preet Bharara: And you cannot shy away from having people testify about those things because now two times you’ve allowed that information to be shared outside of the executive, outside of the White House.
Anne Milgram: There’s a former Federal Prosector Jean Rossi who was talking about this exact issue and said that the White House was building its case on a fragile sand castle, the waiver and the agreement to allow folks like Don McGahn to testify up front to Mueller, so it says quote, “The waiver however unwise cannot be pulled back,” Jean Rossi said. “I consented to a search of my car and withdraw it after the police find a kilo of heroin.” Illogical. So, it-
Preet Bharara: But you don’t blame him for trying.
Anne Milgram: You don’t blame him.
Preet Bharara: I would do that if there was a kilo of heroin in my car.
Anne Milgram: Right. And then you later say-
Preet Bharara: I would say, “Yeah.”
Anne Milgram: I didn’t mean to consent.
Preet Bharara: Psych.
Anne Milgram: What happened here, you’re right to point out the two points in time that it could have been invoked, I believe if the White House had invoked executive privilege on McGahn, that it would’ve, if they’d litigated it, United States versus Nixon, I think McGahn would have been required to provide a lot of testimony. A criminal investigation was ongoing at that point in time, but that was the first point, they could have litigated it.
Anne Milgram: The second and I think much more important point is that they did potentially caveat the first conversations which, I don’t think is legally binding, I don’t think it’s legally binding to say, “Okay I’m gonna tell you something Preet, but you can’t use this ever again.” I think that alone stepped away from the privilege. But even if it hadn’t, the point at which the report is being released, for the White House to allow it to go to 300 plus million Americans and many people around the world, it’s publicly known, to then go back and say, “Wait, I have a privilege on these exact matters,” it’s just, it is indefensible in my mind.
Anne Milgram: And, what it does show is Don McGahn is now a private citizen, he doesn’t work for the President. If he’s subpoenaed to testify before Congress, he has to comply. The only opportunity that they would have to stop his testimony I think is to say, “Wait, wait, that’s executive privilege.” But they’ve already made that call. And so, that ship has sailed and I would expect that we see Don McGahn testify. How do you think this ends?
Preet Bharara: So, I think we’ll see Don McGahn testify, I think he should testify. In ordinary circumstances, they would reach some accommodation. I would expect that to happen here ’cause they don’t have much of a leg to stand on. However, you never know with this administration, you never know with this President. I didn’t think we were gonna have a government shut down, ’cause it made no sense for the country, it made no sense for the federal workers, it made no sense politically really for the President of the United States and we had one anyway, that went on for days and days and days.
Preet Bharara: So, I say what I often say, is that you gotta be careful about predicting, ’cause this President is capable of asserting anything.
Anne Milgram: Yeah. One other piece here is really making the distinction between Don McGahn who now is a private citizen, Robert Mueller is either back as a private citizen or will soon be a private citizen. People like that who can be subpoenaed, and people who are still part of the administration, which who are at work whether it’s someone like Carl Kline who used to work in the White House, now works at the Department of Defense. Or other people who are still part of the administration and are under the power of the President.
Anne Milgram: And so, for the White House to say something is confidential or executive privilege, those people will not be allowed by the administration to testify at this moment in time by and large, other than the sorts of deals that might get cut.
Preet Bharara: Yeah. And remember, someone like Bob Mueller is gonna still be bound by grand jury principles unless there’s been a court order or some other kind of exception for him. And also by the issue of classified material, he’s just not gonna go out there and start answering questions willy nilly, so there will be constraints on him also.
Anne Milgram: And we can talk about that more when the time is coming for Mueller, but I agree, he will more than almost anyone you and I have ever seen do these types of things, he will be completely by the four corners of that report.
Preet Bharara: But he also won’t be evasive, he’ll answer questions. And I’ve been thinking more about this, you know, in the conversation you and I had last week, I felt that during the course of discussing it with you, I had a mild epiphany about Mueller and I think I became slightly less welcoming of his approach, and slightly more critical. ‘Cause I think you said something like, “Yeah, I think that Bob Mueller as a lot of people are saying in the course of opinion, that Bob Mueller believed that obstruction of justice had been committed, but for various reasons felt constrain not to say that.”
Preet Bharara: And you said at some point I think, “You know, if you read between the lines, that’s clear.” And then I thought when you said that, it’s very well put, but why should it be people like you and I who have some expertise here, why should we have to read between the lines to understand what this special counsel really found and thought and concluded. It’s a little weird.
Anne Milgram: And we’re even relying on charts, you know, we’ve both gone through and looked at each of the individual potential counts of obstruction and figured out and relied on some of the Lawfare folks, who’ve done a good job, the Lawfare blog team has done a good job of going through event by event. But when you start to think about it, and also we’re parsing out Mueller said this on conspiracy, well that must apply to the second section.
Preet Bharara: Right.
Anne Milgram: It takes a lot of analysis.
Preet Bharara: Well that’s why I think when Mueller testifies, I’m most interested to see someone who I believe is very forthright and doesn’t play word games, to see how he will answer the question, “Do you believe that if the President were an ordinary citizen, there’s sufficient evidence to prosecute for obstruction?” Now we have one answer to that, which was given by Bill Barr in a roundabout way, who said he asked Mueller some version of this question and then Barr made a representation to the public that it wasn’t but for, you know, but for that office of legal counsel opinion that we keep talking about, there would have been a charge. But that’s hard to square with what the evidence is and how it’s recited throughout the reports. So, I’m looking forward to that.
Preet Bharara: So we talk about more immediately, you know, not withstanding all these fights about Bill Barr, it looks like he will definitely testify in the Senate two days from now, recording this on a Monday. What kind of stuff should he be asked and how do you get a real answer out of this very smart and shrewd lawyer?
Anne Milgram: There are a bunch of questions that are now starting to float around the internet of what questions people should ask. I would start with where you just started, this explicit thing that Barr said during the press conference about, that Mueller told him that he didn’t rely on the OLC opinion, and then you look at the Mueller report and Mueller says explicitly, “I was bound by the OLC opinion, and so I didn’t make a decision.”
Anne Milgram: What’s also interesting about that to further question Barr is that Mueller found that it wasn’t within his purview essentially to be the judge and jury, the thing that stopped him was the OLC opinion saying that you candidate a sitting President. That same prohibition in the OLC memo also applies to Bill Barr. And so, teasing out what part of the OLC memo applies to the special counsel, what’s your view really getting him to commit on this question of, is he bound by the OLC memo? I think he has to say yes, he is bound, and then how he could move to the next step of making a conclusion?
Anne Milgram: I would want him to articulate the standard that he used when he says the President didn’t commit a crime, I would want to basically get him on the record saying that. I would also work through with him some of the analysis you and I have done in saying, “Okay, in section one of the report, here’s what Bob Mueller says, here’s the standard that he used, here’s the exact language. What about in section two?” And going part by part and I don’t think that they necessarily have the time with this, but I would go line by line in some of the parts of the report to really try to pin him down.
Preet Bharara: There’s some smart people on the internet who are providing free advice to Senators and saying don’t ask certain kinds of open ended questions, don’t ask questions that begin with a why, because it allows the witness to go far field, and to filibuster the answer, like you and I have been talking about, it happens all the time in other hearings, and when you’re trying to make the point, which I think is a worthwhile point to make, you just gotta think about the limitations you have given the time constraints. If you’re trying to make the point that Bill Barr’s so called summary, four page summary, was misleading in some way, you gotta be careful how you do that.
Preet Bharara: And, what’s most effective, is if you plan in advance, and people have done this on the internet and at various media outlets, you show the phrase-
Anne Milgram: Exactly.
Preet Bharara: Verbatim.
Anne Milgram: Yes.
Preet Bharara: You show the phrase that’s verbatim in the Mueller Report, put it side by side, juxtapose it with what Bill Barr said about it, to show that he left stuff out, to show that it was weirdly edited, even if neither direction, his phrase first compared to Mueller’s or Mueller’s phrase first compared to his. And, you might not even ask a question other than to say, “Did you write that sir? Do you agree this is what the report says?” ‘Cause that’s how you often do it in court, you don’t have to go to the ultimate question to allow a person to-
Anne Milgram: Explain away.
Preet Bharara: Excuse the issue and explain away. So that’s one thing. I do think a worry I have is people will attempt to show that the four page summary that was submitted on March 24th was misleading in some way, you could characterize it as false in other ways, that you’re not gonna get that far because he’s a cagey witness, ’cause he’s a smart guy, and he could always fall back on the answer, “Look, what kind of a fool am I that I was gonna get away with misleading anyone about anything. Obviously when you have a four page document that’s trying to give the principle conclusions of a 448 page document, things are going to be left out. There’s nothing I could have done in the short period of time that you would say was not misleading in some way. That’s the nature of, you know, the thing I was doing, although I won’t call it a summary.”
Preet Bharara: “I have now by the way,” and he can say it with great enthusiasm, “I have now released basically the whole report, we’re still arguing about some redactions, but to the extent the spirit of your question is, I’m trying to mislead people and I’m trying to pull the wool over people’s eyes and I’m hiding something, I have not hidden anything. You cannot point to a statute, you cannot point to a law, you cannot point to a regulation, you cannot point to a President really that says I had to tell anybody any of this. Not to Congress, not to the gang of eight, not to the public, so it is what it is. And you can Senator if you want, you can quibble with me about this line and that line, I was trying to fulfill an obligation that I wasn’t required to do, but I thought in good faith for the sake of transparency. You know, the feeding frenzy that occurred after it was report, the the report was delivered to the Attorney General which is required by regulation, people wanted to know what the upshot was. And so I gave the upshot. And so-”
Anne Milgram: And I think he’ll also say, and Mueller-
Preet Bharara: “So leave me alone sir.”
Anne Milgram: You know what I think he’ll also do? I think he’s also gonna slam Mueller. I think he’s also gonna go one step further and say, “And you know what? Mueller, he didn’t make a call, somebody had to make a call, I couldn’t leave this out there. I made the call, I’m the hero.”
Preet Bharara: You need me to make that call.
Anne Milgram: Right. That’s what I think. I agree with your completely.
Preet Bharara: You want me to make that call.
Anne Milgram: What do you think about the line of … I think there’s a really interesting line of questioning around, and you can even forget about the press conference where he says, “The President was great, he cooperated with everything.” Just a line of questioning around the President not sitting down for an interview, when you do a standard-
Preet Bharara: And you said he cooperated fully. The President did not do X, correct? The President did not do Y, correct? The President did not do Z, correct? The report points out, you know, A correct, just do that.
Anne Milgram: I think that could be so effective, and just three to four minutes of that. And you know what the answer would have to be. And so, that’s a good example also of controlling the questioning.
Preet Bharara: Isn’t everyone on the Democratic side of the judiciary committee in the Senate running for President?
Anne Milgram: Oh God it feels that way.
Preet Bharara: Aren’t they all? I think they’re all-
Anne Milgram: It feels like-
Preet Bharara: I think they’re all-
Anne Milgram: Yes. Which will make them worse questioners.
Preet Bharara: No it’s not all of them.
Anne Milgram: But it will make-
Preet Bharara: It’s three, at least three.
Anne Milgram: Yes.
Preet Bharara: Kamala Harris. Cory Booker.
Anne Milgram: Cory Booker.
Preet Bharara: Amy Klobuchar.
Anne Milgram: Yes.
Preet Bharara: Who are all [crosstalk 00:29:54], all very smart, and can be good questioners. Here’s what I’m interested in, and I don’t know that anybody will do this, there’s some value in being forward looking and making a record with witnesses, and, you know, from time to time people ask my advice about these things and I say, “Look, not everything has to be a blockbuster question in the moment.”
Anne Milgram: Most good cross examination is not blockbuster in the moment, it’s setting it up for later conclusions.
Preet Bharara: Right. Because, and remember what Congress’ function is, they’re not proceeding towards a particular trial on a particular charge, you’re trying to get someone on the record, you know … We were talking about this, it was respect to interviews that we have done in legal matters that we’ve engaged in, you wanna get the Attorney General of the United States to commit to some principles that you are worried are going to be trampled and violated in the future. And it’s useful to do this.
Preet Bharara: So, for example, you know, one of the great issues here, notwithstanding there was no charge on conspiracy in the debate over collusion, what does a political campaign supposed to do if they are offered dirt on a rival by a hostile foreign nation like Russia or North Korea or Iran?
Anne Milgram: That’s a great one.
Preet Bharara: And Rudy Giuliani went on television the same time I did and said, “Yeah.”
Anne Milgram: It’s okay.
Preet Bharara: “It’s okay to take information from Russia.” I would like to know what the Chief Law Enforcement Officer in the United States of America thinks about that. And, if I had my five or seven or eight or nine minutes, I would only ask about that. I would say, “You know, we have an election coming up, what is your view on what should happen if a Democratic candidate is offered material on Donald Trump that’s dirt, like Iran, or North Korea or Russia? Or you can make the example Donald Trump too. Would your advice not be report it to the FBI?”
Anne Milgram: And then the follow up question is, “What should the FBI do?”
Preet Bharara: And then the exercise will be one of either getting the Attorney General to agree with that proposition which is important, and a good standard to set.
Anne Milgram: Both that it should be reported and investigated.
Preet Bharara: Right. Or, make him look like an ass for refusing to accept that common and decently held and widely held principle. And just that. And you can’t right now those questions, right? You have to in the moment see how the particular witness is going to bob and weave. Too many people think questioning in these kinds of hearings are about the question. They’re not. It’s about, depending on the circumstances, the answer you want the person to give you.
Preet Bharara: So, focus less on the question and more on what the thing is you know that you want them to say, because it’s the truthful thing to say.
Preet Bharara: One of the greatest earliest pieces of advice I got as a practicing lawyer before going to a deposition with a partner at the law firm, and I was keep thinking about the questions, what questions should I propose to the partner to ask this witness? And he said, “Look, to win this litigation, we need to prove various things. You tell me Preet, based on your involvement in the case.” And I was a very junior associate at the time in a law firm. “What are the 10 things we want this guy to say?” Not what are the 10 questions I should ask.
Anne Milgram: Right. What are the 10 things we need.
Preet Bharara: And then you go about it, and you hit, you hit, you hit, you hit. And if they bob this way you go back to the thing, as long as you keep in the forefront of your mind the thing you want them to say, then I think you ask better questions.
Anne Milgram: You said on I think Twitter this morning also, you pointed out that Barr is a smart lawyer and a practiced lawyer, so it is even more important in a circumstance like this where he will be incredibly evasive, so he’s gonna be a smart witness and he’s gonna be a tricky witness.
Anne Milgram: The other thing that I always think about questioning and there are a couple of points, one is, people agree with facts not with conclusions. And this is what all the people running for higher office will probably do wrong. There’s no way that you’re gonna get Bill Barr to agree that he did a terrible summary and lied about what Robert Mueller said. That’s not gonna happen. And so, what you can get him to do is agree to underlying facts and pieces like, you’re asking a great question, what should a political campaign do when a foreign adversary [inaudible 00:33:39]. There’s only one good answer to that question. And if he gives the other answer, everyone can draw the right conclusion, but you’re pinning down the actual factual answer.
Preet Bharara: Yeah. And the other thing that people don’t remember to do, and we were talking about this in training with assistants, and the same goes when you’re cross examining your child, who is lying to you.
Anne Milgram: For all of you at home who would like pointers.
Preet Bharara: This is good stuff. You ask the question, “Is it your view that if you’re presented with dirt on a rival campaign, that the receiving campaign should report it to the FBI if it’s from a foreign power?” And he doesn’t answer, ’cause he won’t, and he’ll bob and weave and do other things, people think you have to rephrase the question. You don’t. If your first question was well put and well phrased-
Anne Milgram: You can leave it. I agree.
Preet Bharara: And, you say, “Okay, thank you for that.” My question was, and you repeat the same question. You do it again, you do it a fourth time. You know how effective that is? You’ve done it.
Anne Milgram: Yes.
Preet Bharara: You’ve seen it in court. Now, it helps if you have the luxury of time, you don’t have the round ending, but again-
Anne Milgram: But by the time you’ve asked it, yes.
Preet Bharara: You either get the answer that you need to get, because it’s the truth, or the witness looks like an ass. And you prefer the first over the second, but the second has some value too.
Anne Milgram: And good questioning, I have no question with Bill Barr, there are a lot of avenues for good questioning of him. I also-
Preet Bharara: You have to pick one thing. I mean, you know, when a reporter has a 10 or 15 minute interview, and you see it all the time, and I get it, they wanna cover five things. And when they’re not making headway on the first thing, they’ll move to the second thing. And I see it with Kellyanne Conway, I see it with Rudy Giuliani, I see it with other folks. I’m not saying everyone is like this, but there is some value in finding the one thing and just like a dog with a bone, and not letting go of it. Because part of the job is again, I’ve said this now four times, is to either get the truth out or make it very very plain to the public that this person does not wanna tell the truth.
Preet Bharara: And you ask the same question again and again and again, you can take another opportunity to ask it a slightly different way, and make it clear that this person just doesn’t wanna answer your question.
Anne Milgram: You’ve convinced me.
Preet Bharara: All right. I’ll stop. But the other … I’m sorry.
Anne Milgram: If we had more time I would make my top 10 list of, my top 10 ten questions for Barr.
Preet Bharara: We would get five minute rounds here.
Anne Milgram: Yeah, yeah.
Preet Bharara: Last thing about Bill Barr that will make him effective, and he kind of was. At the press conference and at his confirmation hearing, is his demeanor. He doesn’t get angry.
Anne Milgram: He’s calm.
Preet Bharara: He doesn’t fight back, you’ve seen these other witnesses, who was it, Steve Mnuchin who was like, you know, said to Maxine Waters, “I believe you’re supposed to bang the gravel.” He doesn’t know … At the treasury department they only know about money, they don’t know about gavels.
Preet Bharara: He doesn’t lose his cool, and if you’re not paying attention to what he’s saying, because he’s so deadpan and little bit sleepy about it, none of it sounds very sensational, ’cause he speaks in a reasonable voice.
Anne Milgram: Some of the things he says, it’s a great point, that some of the things on it’s face when you first hear it, you think, “Huh, that doesn’t sounds quite right.” But you have to think about it, and so you really have to pay attention and then think about, “Well, what is he actually saying and what is the role of the Department of Justice?” And there will be ample opportunity if folks can do a good job listening to what he says, but you’re right. He’s gonna be a tricky witness.
Preet Bharara: Let’s move on down the chain of command at the Department of Justice. From Bill Barr, the Attorney General, to the Deputy Attorney General, Rod Rosenstein. So, the listeners should know we’re gonna go through the whole department. There’s 120000 employees.
Anne Milgram: Get ready. Get your snacks.
Preet Bharara: This is gonna be an extra long version of the CAFE Insider. And then we have the Associate Attorney General, then we have the Assistant Attorney Generals.
Preet Bharara: So, he gave this speech, very complicated this Rod Rosenstein figure.
Anne Milgram: He’s very complicated. He gave a speech at the Armenian Bar Association Dinner. Why did he choose the Armenian Bar Association Dinner to launch what I would describe as a tirade?
Preet Bharara: So, a little bit self pitying tirade.
Anne Milgram: A very self pitying.
Preet Bharara: He said, hold on, let’s-
Anne Milgram: And also a tirade and we should read more of this to the folks who are listening, but a very much a tirade of, “I’m amazing, and everyone else in the world is terrible.”
Preet Bharara: Well, I’m sure I did this from time … I’m sure you never did. But I from time to time might have sounded, you know, a little self important and a little self righteous. When you have words in your vocabulary that are supposed to be used like justice and injustice-
Anne Milgram: And rule of law.
Preet Bharara: And rule of law and the right thing, I’m sure there were people who sometimes were like, “Okay, you need to just relax a little bit.” But I don’t think that either of us-
Anne Milgram: I think it’s-
Preet Bharara: Ever went on and on and on like this, in this way-
Anne Milgram: I mean-
Preet Bharara: In this context.
Anne Milgram: So first he quotes President Trump on the rule of law, and this is a talking point you know.
Preet Bharara: Let’s spend some time on that.
Anne Milgram: Yes. Rod Rosenstein says, “We use the term rule of law to describe our obligation to follow neutral principles. As President Trump pointed out, we govern ourselves in accordance with the rule of law rather than the whims of an elite few or the dictates of collective will.”
Preet Bharara: Okay, so here on planet earth, that’s an odd thing to hear. And, without the reference to Trump, sure, it’s a reasonable thing to say, it’s what I believe, it’s I think what you believe, the things that we should believe, that the rule of law describes a better obligation to follow neutral principles. I think there’s nothing objectionable there. To say that Donald Trump is a paragon of that value or that virtue, is insane to the point of absurdity by any measure. The idea that Donald Trump believes in neutral principles, whether it’s criticizing the media or criticizing intelligence agencies, or the FBI, or anything else.
Anne Milgram: Or the investigation.
Preet Bharara: Or the investigation, that he follows neutral principles as opposed to, I guess there’s one neutral principles, there’s one principle he follows that’s not neutral, and that is, “If you’re with me, then you’re good.”
Anne Milgram: Exactly.
Preet Bharara: “If you’re against me, then you’re bad. If you testify to 100 facts and 99 of them are terrible for me, those are lies, and the one thing that you said that was favorable to me, that’s the truth.”
Anne Milgram: Do you think that-
Preet Bharara: That’s the principle but it’s not a neutral one.
Anne Milgram: Do you think that Rod Rosenstein was doing this to say, “Hey I’m on team Trump.” Or, do you think Donald Trump actually put that in? I did have a moment where I thought-
Preet Bharara: I’ve always thought that-
Anne Milgram: It’s so gratuitous to say-
Preet Bharara: That Donald Trump’s writes his speeches for various administration officials. I don’t know.
Anne Milgram: If I were gonna quote someone on the rule of law, the last person I would quote is Donald Trump.
Preet Bharara: Well unless you’re trying to create some favor, look, you know, the backdrop of this by the way, is also other reporting, which I can always issue the copy out that, until someone confirms it, if you ever think with a little bit of skepticism, but this sounds very credible to me, about how roiling a year it was for Rod Rosenstein and how he wanted to keep his job. You gotta be careful about people who wanna keep their job so God damn badly, that they get upset about it. You have to be prepared to leave your job, you have to prepared not to compromise yourself and not to humiliate yourself.
Preet Bharara: You know, Jim Comey famously said about Rod Rosenstein, we’ve said it here, and you may disagree with Jim Comey about a lot of things, but when he called Rod a survivor, and I’d known Rod a lot of years, and I think he’s a good lawyer. I never saw him engage in these kinds of things. But maybe these are new circumstances and there’s a higher level of stakes that he’s involved in. He called him a survivor and it wasn’t a compliment, that you have to bend a little bit this way and that way. And, he’s reported to have said, in somewhat emotional terms, that he did not wanna be fired by a tweet. Who the hell cares how you’re fired? Sometimes you should be fired.
Anne Milgram: You were fired.
Preet Bharara: I was fired.
Anne Milgram: Yup.
Preet Bharara: Yeah. Yeah. You know, I was-
Anne Milgram: Were you fired by a tweet?
Preet Bharara: No, it took them two days to fire me ’cause they couldn’t figure out I guess-
Anne Milgram: ‘Cause you didn’t return the call.
Preet Bharara: I didn’t return the call.
Anne Milgram: But you’re completely right. If-
Preet Bharara: I’d return the call. I think Rod Rosenstein would have returned the call and would have paid the President a compliment in that call.
Anne Milgram: Yeah. And said I’m gonna make sure-
Preet Bharara: And I think you need people who are not gonna return the call.
Anne Milgram: I agree. I agree. And I think you have to be willing to be fired for the courage of your convictions.
Anne Milgram: We were at an aquarium yesterday, stay with me, it’s totally related to this.
Preet Bharara: This is the best segue of all time.
Anne Milgram: The strangest of the day. And there was a chameleon, and you read about how chameleons change their colors and how they look in different environments. And Rod Rosenstein feels to me like he’s a chameleon, when he’s appealing to Donald Trump he’s gonna say what Trump wants, or has a moment of understanding that something’s not right, he’s in tears or he’s going to the head of the FBI at the time and saying, “Should we tape him?”
Anne Milgram: I mean, you and I have described him as weak, but he’s also very erratic and sort of going back and forth and changing his stripes.
Preet Bharara: What strikes me-
Anne Milgram: I’ve just conflated my animal metaphors.
Preet Bharara: Well I think that’s obvious, you know, I never heard of going to the aquarium for the chameleons, you go for the stingrays.
Anne Milgram: I know. I know.
Preet Bharara: Right? It’s the stingrays.
Anne Milgram: There were monkeys there too. Anyway.
Preet Bharara: At the aquarium?
Anne Milgram: It was very strange, but I saw the, yes, but I saw-
Preet Bharara: Is this because of global warming?
Anne Milgram: That’s a very good question.
Preet Bharara: Something going on?
Anne Milgram: When I saw the chameleon I was like, “That seems familiar to me.”
Anne Milgram: Can I read what Benjamin Wittes who runs Lawfare said on Twitter? Because-
Preet Bharara: I should just point out-
Anne Milgram: Please.
Preet Bharara: That Benjamin Wittes pays us nothing-
Anne Milgram: Nothing.
Preet Bharara: To constantly quote him. He’s very smart in these things.
Anne Milgram: He’s smart and he does very deep analysis and he spends a lot of time thinking about the same things you and I are talking about. But this particular quote I thought was important, and he said, “The big picture on Rod is extremely complicated. He played a thoroughly dishonorable role in the Comey firing, he then appointed Mueller. He protected Mueller from Congress. He also played both sides of the fence with respect to Trump. He gave far too much information to Congress on pending matters. He threw career public servants under the bus. He also defended Mueller at great personal risk. He has not always told the truth. He cared way too much about not being fired. There’s no simple assessment of his performance. Do I admire him? Not a bit. Do I think his tenure’s been touched by anything like principle? Nope. Do I think he made an important contribution? Yes. Has he achieved any kind of redemption? Not my department.”
Preet Bharara: Pretty well put.
Anne Milgram: Pretty well put. And I’m probably a little more negative on Rod Rosenstein than Benjamin Wittes is, but I think he rightly points out how contradictory and complicated his tenure has been. But I agree that he has been very weak on multiple occasions when he should have been strong.
Anne Milgram: And, what do you think Preet about the, part of Rod Rosenstein’s speech, he’s at this dinner, and he attacks the Obama administration on its reaction to the Russia hacking of the election.
Preet Bharara: The whole thing about using a speech a like this to settle scores and to answer critics, as opposed to doing it in a press interview where he could be subject to questions and called out on inconsistencies and asked about, you know, what he really meant to say and imply, and what he thinks about Trump and the rule of law, is odd to me. And, that also sounds like a talking point. I think Rod has actually not done this as much as Bill Barr, even though Bill Barr has had a very short tenure, who talks about exoneration, and talks about collusion, even though those are not the ways in which the very report he’s purporting to describe use those terms or understand those terms.
Preet Bharara: So, you know, I think he’s performing for a particular audience and a particular supporters of that audience of one. It’s a more complicated question about what Obama did. I think people could make the argument that the Obama administration could have done more with respect to interference, the Obama administration could have done more. And I’ve said this before, with respect to the threat from Russia, you know, people have talked about more recently, the 2012 debate between Mitt Romney and Barack Obama. And I’ve talked about it on Stay Tuned. And it was a joke, it was made about Mitt Romney when he said something about our greatest foe is Russia.
Preet Bharara: And you know what? The world and this country-
Anne Milgram: He’s right.
Preet Bharara: Think more along those lines than they do otherwise. So, there’s legitimate things you can say about any President and certainly about Barack Obama, but there’s also the fact that Mitch McConnell, the Senate Majority Leader, made a huge play to deter the Obama administration from saying any such thing, and they were cowed by that a little bit. But it was not as simple and straightforward as Rod Rosenstein would have you believe in this speech.
Anne Milgram: I think these are fair questions and to ask about the Obama administration separately, but it’s particularly stunning coming from Rosenstein because Trump and his family and the campaign still deny that the hacking has ever happened. And so, you’re either on this message as part of team Trump, or it’s a really sort of inconsistent statement by a senior member of the Trump administration. It’s just attack, attack, attack, and going after Obama on it, particularly on something that the President hasn’t acknowledged even to this day that happened, it’s a pretty stunning-
Preet Bharara: Right. Well ’cause Vladimir Putin vehemently denied it.
Anne Milgram: Right.
Preet Bharara: And when he vehemently denies things-
Anne Milgram: The President believes him.
Preet Bharara: Then you [inaudible 00:46:27]. There’s a lot more things to say about Rod and we will going forward, and about this speech, but he does have this weird attack on the press. And believe me, I-
Anne Milgram: Mercenary.
Preet Bharara: I was not pleased with a lot of things that the press wrote. I’m still not pleased with a lot of things that the press does, and they will sometimes get things wrong. But the attack was kind of odd to me, sort of accusing people in the press and journalists of being all about making money. I don’t know if you’ve seen what the figures are for salaries of members of the mainstream media, but I don’t think they’re into it for the money. And he said, he’s talking about a journalist who he doesn’t name, and he said, “I saw one of the professional provocateurs,” that’s good alliteration, gotta like that. At a holiday party he said, “I’m sorry that I’m making your life miserable.” And I said, “You do your job and I’ll do mine.” That’s, you know, good tough guy stuff.
Preet Bharara: And then Rod goes on to saying the speech about the professional provocateur. Quote, “His job is to entertain and motivate partisans so he can keep making money. My job is to enforce the law in a non partisan way.” That is the whole point of the oath of office, and I appreciate it.
Preet Bharara: The second part of that, but I don’t know, it sort of struck me as, I bet Rod Rosenstein, who I don’t know what the statutory figure is at the moment, but it’s probably something like 170000 or $180000 a year, for the Deputy Attorney General, probably makes a lot more than most of the professional provocateurs that he’s talking about. Well one would never say, “Well, you go on doing your thing, so you can keep making money.” I thought that was odd and a little bit beneath him.
Anne Milgram: It’s also the unrelenting attack on all of the media, or sort of the media as a group. It’s disturbing to sort of say that people are paid to be partisan, as opposed to being journalists who try to figure out what happened. And look, there is a lot of, the public is divided. We live in a country that’s deeply divided and there are, you know, people choose which media, some people listen to Fox, some people listen to MSNBC, some people listen to CNN. There’s plenty of PBS News Hour.
Preet Bharara: Some people listen to The Insider Podcast.
Anne Milgram: Yes.
Preet Bharara: Overall, Rod does say some things that I find hard to disagree with. He says, “Pursuing truth requires keeping an open mind, avoiding confirmation bias, and always yielding to credible evidence. Truth may not match our preconceptions, truth may not satisfy our hopes, but truth is the foundation of the rule of law.” That could have been a paragraph from my own book. He says things that are good and important and mean something, and that we can all agree on, but to frame it in the way he did, and to tout Donald Trump as a paragon of the rule of law and principle decision making, is absurd.
Preet Bharara: Speaking of Donald Trump-
Anne Milgram: Yes.
Preet Bharara: All right. So we’re not gonna go through 120000 people-
Anne Milgram: Not today.
Preet Bharara: In the Justice Department. That’ll be an ongoing series of hours. So, Donald Trump doesn’t wanna be impeached, maybe, maybe he does wanna be impeached, he can use that to his political advantage, it’s unclear what he wants. I think he doesn’t know from day to day, it’s unclear what the Democrats will do. Will they be pursuing their obligation to engage in oversight and putting the evidence before a committee or will them be feckless as some people think they will be, even though that’s a loaded word. I don’t know, but the President has a solution.
Anne Milgram: Yes. The Supreme Court. The President on April 25th tweeted out in all caps at the beginning, “I did nothing wrong.” Then he goes on to day, “If the partisan Dems ever try to impeach, I would first head to the US Supreme Court. Not only are there no high crimes and misdemeanors, there are no crimes by me at all.”
Anne Milgram: This is a fascinating page out of the book of Trump.
Preet Bharara: So just give it to [inaudible 00:49:53]
Anne Milgram: Yes. Give it to, yeah right, right. And what is really interesting is it follows some discussion by Alan Dershowitz, who’s been closely aligned with the President and the administration, saying, “Well, maybe there’s a way to get this to the Supreme Court or for the Supreme Court to be involved.” Is that true Preet?
Preet Bharara: As a legal matter and as a constitutional matter, no. It’ll be like saying if you oppose the pardon of someone, which the constitution gives pretty much wholesale authority to the President on, we’re gonna appeal that the Supreme Court.
Anne Milgram: And the constitution is very clear on this. There are areas where the Supreme Court walks in to decide issues because the constitution or the laws of our country aren’t clear, but the first preference for all courts and all understanding of written words is to look at the actual words, and it is clear here from the constitution that it is Congress’ power to impeach the President, and to try the President on those articles of impeachment, and that the decision as to what constitutes high crimes and misdemeanors is to made by the Congress.
Preet Bharara: Yeah. So, the Supreme Court clearly has no power to review impeachment and conviction. I will say as some people have suggested, you could reach the Supreme Court in a couple of different ways, one of which would be, and this again is not going to happen, but as the hypothetical would unfold, it would be like this: there’s impeachment, there’s conviction in the Senate, and the President says for whatever reason, “I don’t accept that. I don’t agree with that,” and he makes some ludicrous arguments like he makes.
Anne Milgram: Refuses to leave office.
Preet Bharara: Refuses to leave. What happens?
Anne Milgram: Creates a constitutional crisis.
Preet Bharara: Do the military officials take action? I would hope not.
Anne Milgram: Yeah, that’s what he’s saying.
Preet Bharara: Does the Vice President, you know, maybe, Pence is pretty good I’m guessing at sticking the shiv in the …
Anne Milgram: But this is exactly what Trump is saying. If demoted-
Preet Bharara: You’ll go to court.
Anne Milgram: I’m not gonna leave-
Preet Bharara: Yeah. I’m not gonna accept it because-
Anne Milgram: I’m gonna go until the Supreme Court tells me I need to get out.
Preet Bharara: Again, I haven’t thought enough about how that would play out.
Anne Milgram: What’s really interesting about it is that it’s taking something where I think most lawyers in America would agree with our analysis that it’s left for the Congress. The Congress has the power to impeach and gets to decide. It is not a matter for the courts. But he’s now sort of reframing this in the public’s eye and saying, “Well, I get a swing to the Supreme Court.” And, remember this is the day after, two days after he just, this was in general argued, whether the citizenship question is [inaudible 00:52:15] part of the United States Census. And so … Please.
Preet Bharara: I wanna ask Bill Barr this question too, it’s an important thing to get on the record. “Do you believe Attorney General Barr, that if in a hypothetical situation, if the House impeached and the Senate convicted, does the Supreme Court have any ability to review that?” And, he’d probably, it’d be telling-
Anne Milgram: It would be fascinating to hear what he says.
Preet Bharara: It’d be telling because the clear answer is no. But he won’t wanna say no, because that would violate a cardinal principle, and that is-
Anne Milgram: Protect the President.
Preet Bharara: Rebuttal of a tweet by the President, which he’s not gonna wanna do. But again, you either get the person to say the right truthful thing, or you make them look foolish by refusing to do so.
Anne Milgram: I hope someone asks that. That’s a great question.
Preet Bharara: All right. So why don’t we move away from Trump, although not fully moving away from Trump and talk about this peculiar case brought by the United States Attorney in the District of Massachusetts in Boston, against a local judge, who they claim obstructed justice by engaging in some conduct that caused an ICE official not to be able to arrest and detain a defendant who was appearing in a criminal matter before the local judge. And the local judge they say engaged in behavior that allowed that defendant in her matter, to escape out of a back door essentially from the courthouse with full knowledge that there was an ICE agent there who had, they claim lawful authority to arrest this person.
Preet Bharara: And so, that was an obstruction of a particular proceeding that was done with corrupt and criminal intent, what do you make of that case?
Anne Milgram: So, just to highlight some of the facts a little deeper, the indictment says that Immigrations Customs Enforcement, that they had put a detainer on the individual who came before the court, that there was a warrant for him, essentially for his arrest, for him to be transferred into federal law enforcement. And, this is one of the questions in my mind, it appears that Massachusetts allows ICE agents to go, courts or public, allows ICE agents to come in, and then in case the ICE agent came in, alerted the court staff, and then ostensibly that went to the judge, that the individual was wanted, this ICE warrant, it’s a complicated factual scenario because the individual is brought in on having a potential detainer in another state, that the Assistant District Attorney eventually says, “No, we actually don’t think it’s the same person.”
Anne Milgram: And then there are local drug charges that are being brought. And, there’s also this allegation that the judge basically goes off the record for 52 seconds and works out a deal. The allegation essentially is she works out a deal with the defense lawyer, whereby she’s kicked the ICE agent or had the ICE agent step out of the courtroom, and then has the Court Security Officer who’s also charged, bring the individual down to sort of a holding area where the Court Security Officer then allows him to leave.
Anne Milgram: So, the case is, the individual’s bailed out on the drug charges, which would not be unusual at all, but for the fact of an existing federal warrant, the normal practice would be given those circumstances, if somebody came with a lawful warrant to another court, would be for the judge to have honored that warrant and have given custody of the person over. So, if you ask me if I look at the indictment on its face, does it look like it technically is a crime, I think the answer is yes, because there was a lawful federal warrant. But if you ask me would I have ever have charged it? The answer is no.
Anne Milgram: And, I mean I don’t know if you feel differently about whether you would’ve brought the charges here.
Preet Bharara: Once again at the risk of agreeing with my brilliant cohost, I do, and, you know, there are some people who are arguing that it’s a wholesale, you know, not made out case. I’m not sure I fully agree with them. I think there are weaknesses and there are problems-
Anne Milgram: And obstruction is hard to prove, so I’m not sure that it … I think the judge and the Court Security Officer should absolutely go to trial and put the evidence to the test ’cause there are real questions.
Preet Bharara: And it’s defensible for various reasons. But I think more important than whether or not they technically made out the elements of the crime, it seems to be a bit of an overreach. There are other ways to deal with it, it does risk a chilling effect on sort of independent administration of state court justice. And the people who say that the feds should never have anything to do with courts, the local courts, I don’t buy that. There have been cases and I think we may have brought some of these, if you have clear evidence beyond a reasonable doubt, that a state court judge is taking bribes for administrating cases in a particular way, yeah, they should be locked up and they should go to federal prison, I have no problem with that.
Preet Bharara: This is not that.
Anne Milgram: I do think that there are overall issues and I think that this is a higher level issue for the Massachusetts Supreme Court and their judicial counsel to decide, but I do worry about this idea that ICE agents just show up in court when you could have … I’ve prosecuted cases, I haven’t asked people there whether they’re documented or undocumented, and you can really see that what could happen is that people who are undocumented would stop coming forward if they were witnesses, coming forward if they’re victims, and it can have a terrible chilling effect on local cases.
Anne Milgram: So, I think there’s a real high level question here.
Preet Bharara: Right. Because this case is better optically from the perspective of the US Attorney a little bit, because the person was a criminal defendant-
Anne Milgram: Right.
Preet Bharara: In the state court.
Anne Milgram: And not a victim.
Preet Bharara: Right. But the same principle would apply, right? We could’ve charged this judge I guess with obstruction on the very same facts, except you change one and have the person who’s showing up for court be someone who is testifying in a pretrial hearing as a victim of a robbery. And the ICE agent-
Anne Milgram: Yeah. I’ve had human trafficking victims who are undocumented, and you could imagine an ICE agent could absolutely show up during a testimony for trial, a pretrial hearing, and you could end up in a position where you have federal law enforcement taking your victim in a case. And so, I think there are real issues that we should debate and discuss what the role, if that’s the right role for federal law enforcement.
Anne Milgram: There is something strange to me reading this about this state court judge being prosecuted for obstruction, when we’ve just spent the past two weeks talking about a 448 page document about obstruction of justice.
Preet Bharara: Yeah. And what the standard is in the department, now I should just preface this with the idea that I don’t love comparisons like this, when you say, “Well, somebody shouldn’t be prosecuted for X when in some other context in some other jurisdiction, with some other set of facts, that person got a light sentence.” And you’d be careful about that.
Preet Bharara: However, I will say I agree with you. It is jarring against the backdrop.
Anne Milgram: And it feels a little political. And I’m not sure that it is, but it felt a little bit like ICE was flexing and basically saying a little bit to the US Attorney’s Office, “How dare someone not comply with us.” And look, they have a legitimate argument here.
Preet Bharara: Yup. But someone will come back to me, I’m sure that we had agents who went to state proceedings-
Anne Milgram: I’m sure. I’m sure-
Preet Bharara: And grabbed people. But not in like, not in the context of like an immigration detainer, but I’m sure we did that.
Anne Milgram: Yeah.
Preet Bharara: You’d have a fugitive on a federal homicide potentially, and you didn’t know where they were, but you knew they had to show up for a parole hearing or something in some state court robbery, yeah.
Anne Milgram: Yeah.
Preet Bharara: I hope the [inaudible 00:59:14] will show up and arrest that guy in a state court.
Anne Milgram: And by the way-
Preet Bharara: I’m not saying that that’s necessarily bad-
Anne Milgram: Right.
Preet Bharara: I’m saying the prosecution of somebody for letting a person get away, the question, if I took what you’re saying to heart, it is on its face, in which case is there more evidence of obstruction and more serious obstruction? Is it this state court judge who didn’t like the ICE agent coming into her territory and wanting to arrest somebody, or what was laid out in volume two of The Mueller Report against the President? And I would go for B.
Anne Milgram: No question. Volume two.
Preet Bharara: That’s all we have time for today. I’m Preet Bharara.
Anne Milgram: I’m Anne Milgram. Please send us your questions and we’ll do our best to answer them.
Preet Bharara: This is the CAFE Insider podcast. Your hosts are Preet Bharara and Anne Milgram. The Executive Producer is Tamara Sepper. The Senior Producer is Erik Dalton. And the CAFE team is Julia Doyle, Calvin Lord, Vinay Basti and Jeff Isenman. Our music is by Andrew Dost.
Preet Bharara: Thank you for being a part of the CAFE Insider community.