Preet Bharara: Hey, folks before we get started today. Just a quick programming note about next week. The CAFE Insider podcast will be taking next week off in remembrance of memorial day, and we hope everyone takes the opportunity to remember folks who sacrificed for our country.
Preet Bharara: From CAFE, welcome to CAFE insider. I’m Preet Bharara.
Anne Migram: And I’m Anne Migram.
Preet Bharara: Hi, Anne Migram.
Anne Migram: Good morning.
Preet Bharara: How are you?
Anne Migram: I’m good, how you doing?
Preet Bharara: I’m good. Did you have a good weekend?
Anne Migram: I had a great weekend. Went to visit friends in Connecticut. We had a great time. There were seven kids in the house, it was mayhem. So all the kids were particularly happy but the parents were a little tired, but it was great. How about you?
Preet Bharara: I had a good weekend. I did something really special last night. I went and saw Nils Lofgren.
Anne Migram: Oh, the Bruce Springsteen and E Street band fam.
Preet Bharara: Of the E street. No, but he has his own band. He does solo stuff too that’s amazing. He has a new album called Blue With Lou. A series of collaborations he did years ago with the great Lou Reed.
Anne Migram: Wow, I’ve never heard his band. I’ll check it out later.
Preet Bharara: It’s terrific and I got to talk with Nils afterwards a little bit. Tell him he did a great job.
Anne Migram: That’s exciting.
Preet Bharara: I tweeted about this last night. When things are kind of sucky in the world.
Anne Migram: The legal term, yeah.
Preet Bharara: Yeah, there’s various ways you can forget about that. You go see a live show and great guitar work. Anyway, but here we are.
Anne Migram: And it makes the world a better place, yeah.
Preet Bharara: I think it does. You know what else makes the world a better place?
Anne Migram: CAFE insider?
Preet Bharara: CAFE inside.
Anne Migram: I was like, “Is that trick question?”
Preet Bharara: There’s no music. We should have more… I can’t really play an instrument.
Anne Migram: Your buddy Nils can do-
Preet Bharara: Oh, I have thought about…
Anne Migram: …our song or something.
Preet Bharara: Maybe we can get a new riff. Our regular music, maybe people don’t know this if they’ve only begun to listen recently. Our music is by Andrew Dost who is a member of the band Fun.
Anne Migram: I did not know that.
Preet Bharara: Yeah. All right so there’s a lot of things to talk about. For changes there’s a significant legal issue that has gotten a lot of attention, as it should, and something that’s on the minds of a lot of people in the country with respect to the supreme court and the future of a woman’s right to choose.
Anne Migram: Yes.
Preet Bharara: In Alabama a bill passed which I think it’s not too extreme to say essentially outlaws all abortion with penalties for doctors who perform it, and no exceptions either for cases of rape and incest.
Anne Migram: It’s the most extreme law to have passed a state legislature and been signed into law by a governor in years and years.
Preet Bharara: How many men voted for the law versus women? Did any women vote this?
Anne Migram: That’s a great question. It’s a great question. I do know that there were 25-
Preet Bharara: 25 dudes.
Anne Migram: … white Republican males. That’s how they described on, I think it’s USA today. I was just reading an article this morning.
Preet Bharara: Well, I saw a picture so I can confirm by appearance.
Anne Migram: Yes, voted for it. It’s a lot of men telling women what to do with their bodies.
Preet Bharara: Yes.
Anne Migram: The governor is a woman.
Preet Bharara: And she signed into law.
Anne Migram: And she signed and she’s been a staunch anti-abortion person for a very long time.
Preet Bharara: Should we talk for once second before we get to the substance why this is happening now? It seems to be because people have, on the one side of the argument, hope that with the new conservative supreme court which now has Neil Neil Gorsuch and Brett Kavanaugh, and a president who has said that he’s essentially going to appoint people who will help to overturn Roe v. Wade. They want a test case and they want to get it up to court essentially knowing that the extreme version of this law violates Roe, right?
Anne Migram: Agreed. I would’ve said there are two words for why it’s happening now in the way that’s it’s happening, and they would be Brett Kavanaugh. Some of his prior rulings when he was on the DC circuit and his prior writings are very opposed to Roe v. Wade. He did say during confirmation that I think he understood Roe was precedent, but precedent gets overruled and I think we’ll talk about that probably today. I think there is a definite view in conservative circles that Kavanaugh will support either an overturning of Roe v. Wade or significant restrictions. Pulling it back farther and farther. This is often done to rile up the base and we’re coming into a presidential election cycle, and one of the things that I wasn’t really following until last week when all this came up with Georgie and Alabama is how many states have done this.
Anne Migram: Since January more states have passed these very restrictive abortion laws. A number of states have passed the fetal heartbeat laws. Like Georgia saying the minute that a heartbeat could be detected that anything after that is unlawful. An abortion after that period in time is unlawful. It’s a number of conservative states passing very restrictive laws.
Preet Bharara: Also, Louisiana, also Missouri.
Anne Migram: Yes.
Preet Bharara: Right? Just to give a sense also of how extreme it is and how some notable Republicans and conservatives have talked about the Alabama bill. Senator Richard Shelby, conservative senator from Alabama himself has said it goes too far. The president of the United States, Donald Trump who somehow in his later life has changed completely his view on choice and-
Anne Migram: He used to be pro-choice.
Preet Bharara: Yeah, I think always. He was pretty staunchly. You even have conservative evangelist Pat Robinson saying it goes too far, because the mantra had always been a lot of restrictions on abortion under their view, but there’s always been overwhelming consensus of an exception for rape and incest.
Anne Migram: Always.
Preet Bharara: To force a woman to bear the child of her rapist has been something that has been a bridge too far for most conservatives, and in Alabama now we don’t have that.
Anne Migram: What’s extraordinary about the Georgie legislation also it’s one of the first bills that we’ve seen that criminalizes the woman, and essentially so a woman who had an abortion contrary to the state law. She could be prosecuted for a felony essentially for doing so. We’re seeing a lot of changes and they’re very much all geared at rolling back Roe v. Wade or eliminating it.
Preet Bharara: So maybe we should take a step back because I keep seeing presidential candidates getting asked this question and members of the Senate who go on television, and go to town halls get asked this question when does life behind? What restrictions should there be if any? And a lot of this comes down to the concept in Roe v. Wade. [inaudible 00:05:50] do a little-
Anne Migram: Let’s do a little legal.
Preet Bharara: A little [primma 00:05:52] of when I fetus is viable. Some people don’t like that test and Roe has come under criticism even from liberal folks for the way it was reasoned, but that’s the law of the land. So viability. Let’s talk about that for a second.
Anne Migram: Viability is defined as the potential ability to live outside the mother’s womb even with “Artificial Aid.” And so basically if a baby was born and could be sustained through medical or other assistance, at that point considered viable. There’s an interesting debate about what the right time period is for viability. A lot of laws said 24 weeks. Georgia prior to this current law that they’ve been working on said 20 weeks was the point of viability, and so you tend to see around 20/24 weeks being the point of viability. What Roe did was say there’s a fundamental constitutionally right, but at certain points in time states can put restrictions on those rights. Late-term abortions, things like that.
Preet Bharara: What continues to become an interesting question then. If the linchpin of the issue is viability is as science and technology in medicine progress that moment becomes earlier and earlier.
Anne Migram: Yes.
Preet Bharara: And that affects the debate I think in serious ways.
Anne Migram: Agreed and there’s no scientific body that they’ve called upon to make that decision. To pick a date. Is it 10 weeks? Is it 20 weeks? Is it 30 weeks? There’s no outside agency that makes that decision at this point in time. So states are doing that. What you see with the fetal heartbeat laws is that the states are basically pushing to say, “Once there’s a heartbeat that fetus becomes a human being under the eyes of the law in this state.” Which is really dramatically different than the question of viability. Which is could a fetus survive outside a womb? Justice Blackmun writing for the country in 1973 found that there was a right to privacy in the due process clause of the 14th amendment to the United States Constitution. What’s really important about that is that state laws and other rules and regulations can give you rights, but there’s nothing stronger than a constitutional right when it comes to legal questions.
Anne Migram: So Blackmun in reading the right to privacy basically said, “The government can’t tell women what to do with their bodies. They have this right.” At that time before a baby is viable there were no restrictions essentially under Roe. This was a period in time when there was not viability.
Preet Bharara: There’s an understandable surface level appeal, I guess to some folks. This idea of the heartbeat and that is the moment of truth, but I’ve heard a lot of doctors about it differently and say, “Well, the heartbeat is interesting to focus on. The hearts just pump and you get a heartbeat pretty early in the evolution and development of a fetus. What really defines a human being is brain activity, and the brain activity comes a lot later.” That’s just an important medical issue to focus on.
Anne Migram: Yeah, that’s really interesting.
Preet Bharara: Why do have to have this debate on what a person is because isn’t that just defined in the constitution?
Anne Migram: It is not defined in the United States Constitution.
Preet Bharara: It is not defined in the constitution.
Anne Migram: No, under Roe what the court found was that the word person as used in the 14th amendment does not include the unborn. Meaning that up until the point that a baby is born it would not be considered a person, and this if you’ve followed some of the debate in the past week or two as a place like Georgia and other states that are looking at these fetal heartbeats laws. What a number of folks have said is, “Okay, you want to consider the fetus to be a person?” Meaning that they then have rights as a person. Then that fetus is entitled to benefits for housing, for food, due process. If you think about a woman who’s pregnant and incarcerated that then has a fetus under a law in one of these states that says, “The fetus is a person.” That’s due process violation of holding that fetus in a jail or a prison without any due process. Without having been convicted of a crime.
Anne Migram: So it raises there’s really interesting questions. If it is a person under the eyes of the law then there are whole host of other rights that would apply to the fetus. You can’t pick and choose your rights, Preet.
Preet Bharara: No, you cannot.
Anne Migram: You cannot.
Preet Bharara: So the saga of the debate over reproductive rights does not begin and end with Roe. There was another case that is part of the important lexicon of talking reproductive rights which is known as Planned Parenthood v. Casey. Which came down in 1992, 19 years later which addressed I think more specifically the kinds of ways in which you could put regulations on abortion, and some regulations it found could be okay, and some regulations it found could not be okay. So for example, requirements of parental consent, informed consent, waiting periods were constitutionally valid, and essentially it said, “The test is whether or not there’s an undue burden on the right to abortion.” Casey essentially defined undue burden as follows.
Preet Bharara: An undue burden exists and therefore provision of law is invalid if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains, there’s that word again, viability.
Anne Migram: Yeah, so Casey is important for a number of reasons. First of all I think in some ways most important because it affirms Roe. Meaning it says that Roe was good law, that there is a constitutional right to privacy in the 14th amendment to the constitution and that that protects a woman’s right to choose. And the first time a case comes up to the supreme court after something like Roe sometimes the court can step back from prior arguments. Here they really double down on it and they said, “No, that’s good law.” They then go on to say that instead of using the trimester method that Roe used to think about when abortions can be lawful, and when they can be restricted they really put an emphasis on viability, and again, you just mentioned it. This undue burden. Whether there’s an undue burden that’s put on a woman’s right to an abortion prior to viability. There are number of challenges in Casey. So there’s a parental notification that if it’s minor at least one parent has to give consent.
Preet Bharara: And that was not found to be an undue burden.
Anne Migram: Right. Only one of the things in Casey was found to be an undue burden which was spousal consent. The court found that that was an undue burden being placed on a woman’s right to choose, and they found essentially that it would be a significant obstacle because a husband might object. A husband might not allow the wife to proceed with the abortion and so they struck that part down. One question for you, Preet, is does the Alabama statute or one of the fetal heartbeat statues end up going to the supreme court?
Preet Bharara: Yeah, because I think you’re going to have people oppose it immediately. As we discussed already, I don’t think the proponents of the Alabama law had any illusion that it would go into effect immediately. They’re bruising for the fight and there’s a little bit of a competition to see which case goes up first. So depending on what claims are made where and what the speed of the various dockets are, and then what the supreme court wants to take up. It could be the Alabama law, it could be something else. Look, one of the things that some of the conservative critics of the Alabama law have pointed out is not so much that they disagree on the merit, but also on the strategy of causing Roe to be overturned. I thought I heard Pat Robinson say that he doesn’t have a great outlook from his perspective on how the Alabama law will fair in the supreme court.
Preet Bharara: On the one hand what’s going on is legal constitutional discussion and on the other hand what’s going on is a political strategic and legal strategic debate and conversation about who should do what to get what its side wants.
Anne Migram: One of the things we’ve seen in recent years before the recent group of bills and laws went into effect, one of the things we’ve seen is the states have been slowly adding additional restrictions, conservative states. So they haven’t necessarily I think played for the full overturn of Roe until now, but the Alabama law reads to me like that’s the hail Mary to get Roe completely overturned or restricted so deeply that it is essentially an overturning. Where I think the question becomes really interesting and just to step back, these laws will be challenges in the states. They will then go, I assume, to a federal district court that will hear them because they questions of constitutional interpretation under the 14th amendment of the constitution, and given existing law those federal courts in my view have to strike down these state statutes.
Anne Migram: So the district courts, that’s the first level of review. Federal court will strike down the states statutes. The states then appeal and they’ll appeal to the circuit courts. Different circuits for different states. At that point some circuit courts I believe will take it up and address it, and they’ll make rulings. In a circuit court, the Appellate court is three judges who rule. Those decisions can also be appealed to the supreme court. They could be appealed by either side. Either the state or the people who are opposed to the existing state statutes. What’s interesting is that there are already 16 cases that are at the circuit level that the supreme could take on abortion. These cases will then also go up to the circuits, I believe and the supreme court, if they don’t take the case then whatever the circuit court said is the law.
Anne Migram: Where they do take the case, and I agree with you, they’re going to take at least one or more of the abortion cases and sometimes they take two or three cases just to make up a broader ruling. They’re going to take one or more of these courses. Whether or not they take Alabama, it’s possible that the district court just says “No, this is completely contrary to Casey, to Roe and to all the protections that are mandated in the constitution.” And the circuit court holds that, and then the supreme court could not take it. So I think it’s likely to go up, the Alabama law is likely to go up but I also just want to note that there are just a lot of cases that are circling around waiting to see if the supreme court will take them, and these will now be additional cases like that.
Preet Bharara: And so then the question is what happens in the supreme court and there’s lot of people making a lot of predictions. It also depends on what the make up of the supreme court is at the time that these case become ripe. So right now you have a conservative majority. You have the addition of Neil Gorsuch and Brett Kavanaugh, and I think everyone agrees that with respect to the four liberal justices that they are a solid vote to strike down a law like Alabama’s. Ginsberg, Breyer, Sotomayor, Kagan. Then with the remaining five-
Anne Migram: Who are all conservative justices.
Preet Bharara: Who are all conservative, but also there’s this continuing debate. I had Joan Biskupic author of a biography of John Roberts the chief justice on stay tuned a couple of weeks ago and we had a discussion, and she goes on about it at greater length in the book about what John Roberts thinks the role of the court is, and how incremental it should be as opposed to radical. And the circumstances in which you undo a fairly bedrock right that has gone back now to at least 1973. Maybe he wouldn’t be an immediate vote.
Anne Migram: I think that’s right. My read is that Roberts would not vote to strike down Roe. Maybe he would allow some additional restrictions but I don’t think he would vote to strike down Roe. I do think that Kavanaugh would and I don’t know, I mean, we’re always reading tea leaves when we do things like this but I think it’s just a really interesting question of where Roberts. Roberts in my view, he’s the chief justice. He’s also an institutionalist. He really believes the judiciary is a co-equal branch and the importance of the supreme court as the arbitrators of the law and I don’t think he takes that lightly. Nor do I think he would be the person to sort of embrace an overturning of precedent. And one of the question when… If you talk to folks who litigate in the supreme court, and who argue in the supreme court there are a lot of questions for overturning precedent. One of them is the law not workable? Is it inconsistent with proper legal interpretations and I think the length of time is also an important question.
Anne Migram: And look, the supreme court has overturned prior cases and there are things like Plessy versus Ferguson, Dred Scott. There are some terrible decisions on the history of the United States supreme court [inaudible 00:17:41] the Japanese internment.
Preet Bharara: We were talking just before we started recording today. Bowers v. Hardwick 1986 overturned not that much later. 2003, Lawrence v. Texas.
Anne Migram: On the sodomy laws, that’s right.
Preet Bharara: On the sodomy laws. In the span of American constitutional history that’s not a lot of years.
Anne Migram: And now you have Roe which has been precedent for a very long time. The constitutional right has been found to exist since 1973, and women rely on it. So I don’t think Roberts will be quick to step back from Roe and I hope I’m not proven wrong by the chief justice.
Preet Bharara: But do you have any doubt that if in my view God forbid Donald Trump gets reelected to a second term they’re six more years that at a minimum Ginsberg and maybe some others on the liberal side would be replaced with staunch rock solid anti-abortion conservative jurists that Roe is over.
Anne Migram: I agree with that and I would also say that Roberts, I think he is deeply conservative. I think he’s more of an institutionalist and so I think you’re right about saying incremental change, but I wouldn’t say that Roberts wouldn’t support some change and additional restrictions on Roe. I just don’t think he will overturn the fundamental constitutional holding, but I agree with you. If there is another conservative justice on the court, Roe is gone. One other thing just to note is that the supreme court just overruled a long-standing precedent, Nevada versus hall. It does happen and that was where the supreme last week overruled a decade old precedent on state sovereignty. Writing in the dissenting opinion Justice Breyer wrote, “To overrule a sound decision like Hall is to encourage litigants to seek to overrule other cases. It is to make it more difficult for lawyers to refrain from challenging settled law, and it is to cause the public to become increasingly uncertain about which cases the court will overrule and which cases are here to stay.”
Anne Migram: It feels to me like he’s directly talking about the precedent of Roe when he’s talking about which other cases the court might challenge and overrule.
Preet Bharara: So talking about some of the legal implications. We’ve talked about some of the strategic considerations what might happen with the court. What’s the politics of this? It seems to me like some of the reasons that people like Donald Trump and others are expressing concern about the Alabama law is not only because they think it goes too far in good faith not only because they think it’s not a good legal strategy, but also it might be terrible politics for them, and that it is going to galvanize lots of people, especially women with whom Trump already has huge deficit in the polls and suburban women. Many of whom voted for Trump in 2016 and if you starkly put forward to the public, as you and I have been discussing, something that no longer is a distant hypothetical but a real possibility and likelihood that reproductive rights will be vastly reduced. That’s a problem for the Republicans.
Anne Migram: I agree and I do think that there’s an undercurrent in the laws that is very hostile towards women, and when you think about not including the exemptions for rape or incest which have always been included. When you think about states considering laws that criminalize the woman having an abortion and put her in jail for many years.
Preet Bharara: Did you see that state legislator? I think it was a state legislator in Missouri in debating the bill in that state who made a reference to consensual rape.
Anne Migram: Yes.
Preet Bharara: Now, he says since he misspoke.
Anne Migram: Rape is not consensual.
Preet Bharara: I’m not a Freudian scholar but that’s the kind of thing that people are saying.
Anne Migram: Yeah, yeah, no doubt and I do think that there’s politics writ large in all of this right now and that the 2020 election is going to matter enormously.
Preet Bharara: All right, so we’ll see what happens with this abortion debate. I’m sure we’ll be talking about it a lot more in the coming weeks and months. Another big issue in recent times. The president’s pardon power. So he’s pardoned a few people. Some of which have been controversial but we just note to make clear to folks that the pardon power is really one of the most unfettered authorities that the president has in the constitution. There’s basically no review, there’s basically no guidance. There are some people who think, and the president himself thinks this. That he basically pardon anyone in the federal proceeding. Anyone for any purpose, including associates, including family members. Including himself. He believes he can engage in the self-pardon and that would be lawful.
Anne Migram: Right.
Preet Bharara: Some people speculate that-
Anne Migram: I don’t agree with that, by the way.
Preet Bharara: … he will do that. Neither do it.
Anne Migram: I don’t think you can self-pardon.
Preet Bharara: But the fact that there is a little bit of debate about that just how’s how broad and discretionary the pardon power is. It’s one of the broadest powers that the president has, and lots of presidents have used that power. Sometimes I think in an abusive way. We should say at the outset and I’ve seen some of these people on Twitter when I suggested over the weekend that the pardon power is something that’s going to be revisited after Trump leaves office. I’m not suggesting it should be taken out of the constitution. People say, “Well, what do you think about Mark Rich.” Mars Rich was wealthy financier who’s-
Anne Migram: Who shouldn’t have been pardoned.
Preet Bharara: Should not have been pardoned. Whose wife gave money to Bill Clinton and on his way out the door Bill Clinton pardoned Mark Rich. Now, I was I think 32 or 21 at the time. Just beginning as an assistant US attorney so I was not in a position on Twitter because it didn’t exist to state an opinion, but I totally agreed with the outrage on the part of a lot of people, including by the way, the southern district of New York which at the time was led by Mary Jo White who in the face and in the wake of that pardon opened up a criminal investigation of the president who had appointed her, Bill Clinton and others, because of the outrage of that pardon. It’s also one of the things-
Anne Migram: Because it looked like a quiproquo.
Preet Bharara: Absolutely.
Anne Migram: Like the money was given by Mark Rich’s wife in exchange for the president issuing the pardon.
Preet Bharara: Exactly and it’s one of the things where perfect procedure was not followed and somebody who later became the attorney general, Eric Holder. The biggest hold up he had in his confirmation hearing was his role as deputy attorney general in proving the pardon of Mark Rich.
Anne Migram: Yes.
Preet Bharara: So it’s been abused by other folks too and I have been vocal about it since.
Anne Migram: You just hit on one of the things that I think is the biggest problem with how Trump is doing it, but also really one of the biggest challenges with the pardon power which is extraordinarily broad, and that’s process and procedure. And this is where, yes, the president has the power to pardon anyone and I should also just step back for one second and say a pardon takes away your criminal conviction. So if somebody is incarcerated, they get out and that record is wiped clean. Basically it totally takes away your conviction. Now, it’s different than a commutation of a sentence which is when somebody is, let’s say somebody’s given a 20 year sentence and the president commutes that sentence for example, to 10 years. That means that there’s a lengthening of the amount of time that someone’s incarcerated, but a pardon is really saying, “We’re taking away that criminal conviction.” And that would include if you were incarcerated you would be released.
Anne Migram: In terms of process there is a process that was put in place a number of years ago to have the department of justice screen all the pardons.
Preet Bharara: At the time of Lincoln.
Anne Migram: At the time of Lincoln.
Preet Bharara: So that means there’s a century.
Anne Migram: So when I say [crosstalk 00:24:26] years ago.
Preet Bharara: First there was a century of just the president just does essentially what he wants and then they put in the office of the pardon attorney.
Anne Migram: Which, by the way, is also controversial. There are people on both sides of the aisle who say the department of justice should not oversee pardons because they are the people who oversee convictions. They’re the ones who are in charge of criminal prosecutions. I actually tend to agree with that but I think you have to set up then an outside agency or group with a strong process for how you’re going to vet applications for pardons and commutations of sentences. What’s wrong here and what is so disturbing, and I think was also disturbing with Bill Clinton and Mark Rich is that it looks like a friends and family, and in the case of Donald Trump, celebrities plan, right? If you’re famous, if you’re wealthy, if you have access to the president then, “Hey, I’m going to give you a pardon.” There’s so sense of fairness or equity. There are millions of people with criminal records in America and basically Donald Trump is cherry picking, Conrad Black is a particularly interesting example. He-
Preet Bharara: Yeah, tell us about him.
Anne Migram: So he owned a lot of newspapers. Not just in England but in other countries and he is one of Donald Trump’s closest friends. He’s written a book about Donald Trump. He regularly writes articles saying how wonderful Trump is. He was convicted of obstruction of justice and wire fraud, and mail fraud. The case went up to the supreme court and what’s interesting about that is the obstruction relates to while he is under a court order saying, “You cannot destroy documents or take documents.” He and his chauffeur at the time go in and take out boxes, and boxes of documents from his office, and for that he is convicted of obstruction of justice.
Preet Bharara: What is another feature of Conrad Black that would cause him to be, he claims, without making a pardon application even and no process going through the office of the pardon attorney. Why would he come to the attention of Donald Trump who might pardon him?
Anne Migram: Aside from the fact that they were good friends and he wrote a book praising Donald Trump.
Preet Bharara: Oh.
Anne Migram: Other than those things you mean?
Preet Bharara: Other than those things. Was there anything else that set him apart from any other person who, by the way, has managed to do fine in the world? Notwithstanding his conviction.
Anne Migram: So Conrad Black was ultimately convicted of obstruction of justice and mail fraud. He was incarcerated, he served his sentence and was subsequently released. He’s always contested his conviction and one of the things we should note is the president even seemed to contest his conviction in issuing the pardon. Conrad Black said it was an unjust prosecution. The president seemed to agree which is surprising and I think very disappointing for the president of the United States to do that. Let’s talk about Pat Nolan for a second. Have you met Pat Nolan?
Preet Bharara: No.
Anne Migram: Okay, so I’ve met him and I have a great deal of respect for him. He was a Republican state legislator who was convicted by the FBI in a racketeering scheme. He was essentially taking bribes. He went to prison for that, he did his time. He then became a leader in the criminal justice reform movement and he has been… I think I met him in 2010 or 2011. I would argue he’s one of the reasons that the conservatives have come so strongly into the criminal justice reform space. So he, in my view, deserves a lot of credit for his work in criminal justice reform but I have to oppose hospital pardon as well because there’s absolutely no process. The president can’t just pick people who Jared and Ivanka in the case of Pat Nolan bring to him and say, “This guy’s a really good guy.”
Preet Bharara: I mean they can.
Anne Migram: They can but they shouldn’t.
Preet Bharara: And the president can which is why I think this will be one of the things that will be revisited in 2021 or whenever Trump is gone, because when people have vast discretion to do something and they do it in a way that seems to be abusive or capricious, and I think there may have been some talk about Bill Clinton did his pardon of Mark Rich but at some point people are going to get fed up. And there’s another couple of years of pardons we may see issue from the president and I think one of the reason we’re talking about this is not just because Conrad Black has happened, but because the president has indicated that he wants on an expedited basis paperwork prepared for the potential pardon on, of all days, memorial day for symbolism. The pardon of one or more navy seals who have been accused with heinous war crimes. Really debaucherous, violate, serial killing kinds of allegations. Those allegations have not been resolved. The Court Marshall has not happened yet but on the eve of that happening Donald Trump has made it clear, because I think these folks have gotten some attention of Fox News and other places, that they may be deserving of a pardon.
Preet Bharara: One of those people we should talk about, Edward Gallagher. Who’s Edward Gallagher?
Anne Migram: He is the special operations chief of the navy seals and he’s about to go to trial on charges of shooting unarmed civilians, and killing an enemy captive with a knife while deployed in Iraq. It’s worth noting that other navy seals who served with him have told the authorities that Gallagher indiscriminately shot at civilians. Gunned down a 12 year old girl wearing a flowered hijab, and also gunned down an unarmed old man.
Preet Bharara: And knifed to death, according to the allegations, a young man who was in custody and who was being treated for his wounds. Took out a knife and killed him on the spot.
Anne Migram: And then texted about it with his friend.
Preet Bharara: And bear in mind as you point out and as others have pointed out. His accusers, the witnesses are not soft liberals who just don’t like military action. It’s his fellow navy seals who thought that they had a leader who was out of control and shouldn’t be on the battlefield.
Anne Migram: Isn’t this all part of the conversation we’ve been having about the president on following the rule of law and really trying to undercut it? When we think about rule of law and you think about an organization like the US Military that gets deployed all over the world how important it is that people follow the rules, and that they follow the laws and the guidelines of how we treat fellow Americans and people from other countries. Everyone, humanity. And to allow those violations to go not even unchecked, but almost approved, right? A pardon in the case of somebody who is about to go to trial for war crimes essentially.
Preet Bharara: Before there’s been an adjudication of it.
Anne Migram: Yes.
Preet Bharara: And there hasn’t even been trial. There’s hasn’t even been a finding of fact. There hasn’t even been a finding of guilt or innocence. In the absence of any kind of adjudication to decide in advance to pardon someone seems to be particularly troubling. The guideline generally that the president doesn’t have to follow because he has the constitutional authority to do whatever he wants, but the guideline within the pardon attorney’s office is that there has been a finding of guilt. Either by guilty plea of conviction and then some period of time has gone by since that decision, and here although there have been preemptive pardons in the past. People forget President Ford preemptively pardoned Richard Nixon, in his mind, for the benefit of the country without there having been a charge, a without there having been a trial like there would be in this case. So it has happened but that was an extraordinary circumstance. This is not that. On what earth is it good and just a good message to the troops that someone who’s been accused of basically killing people in cold blood by his fellow honorable service members. In what universe does that advance some good for America?
Anne Migram: It doesn’t. It doesn’t and dishonorable service men and women hurt the honorable service me and women, and also think about commanders trying to basically instill integrity, a sense of justice and fairness in their troops. And I think for questions of order and discipline in the military and just fundamental fairness. It is a terrible thing.
Preet Bharara: One of the reasons that you have punishment for crime is to deter other people, right? And so this is the opposite of that. This undeterrants. It’s not only are you taking away a powerful deterrent message to those who would engage in war crimes on the battlefield in the name of America, but you’re now effectively saying is another way of what you just said a second ago. You’re now effectively saying, ‘Go out there guys and do what you need to do, and if occasionally you need to stab a kid to death, or shoot a girl who’s not doing anything and doesn’t pose a threat. That’s what you got to do for God and country, and we have your back and you’re not going to go to prison for it.” It’s awful.
Anne Migram: You tweeted something out about the Democratic candidates during the debate might get asked whether they would pardon Donald Trump if they were elected in 2020.
Preet Bharara: Yeah, so there is some speculation that Donald Trump faces really legal jeopardy when he lives office. Whether from the southern district of New York of from some other prosecutor’s office. Either based on campaign finance violations or other things that are being investigated right now, or obstruction of justice. It’s a legitimate question. In fact, I think people in the primary against Donald Trump should be asked the same question. I think the answer is an easy one because-
Anne Migram: No.
Preet Bharara: … The politically expedient answer is no, but I think it would be good to get that record. The other thing I tweeted about is whether or not there should be an examination of the pardon power. This democracy task force that I couch here with Governor Christine Todd Whitman, we made some recommendations and it’s not to say that you remove the pardon power. There’s lots and lots of good that comes from being able to engage in clemency with respect to certain case you don’t want to take that away fully, but there are things you can do to maybe reign it in or have some accountability. And without a constitutional amendment there’s not much you can do but the couple of proposals we had were to have Congress require a written submission of an explanation by the president. That can still have the president do whatever he wants and he can put in a lousy submission, but the thought is if you have to put down in writing some good faith explanation as to why this person deserves a pardon as opposed to some other people that puts a little bit of pressure on the president.
Preet Bharara: And also, again, for what it’s worth a resolution in the Congress to say the president cannot pardon himself and these are small measures but I think at the end of the day there will be, depending on what Trump does before the end of his presidency, there will be some consideration given to whether or not the pardon power should be restricted in some way, and if necessary by constitutional amendment.
Anne Migram: You and I both just said no pretty quickly as the answer that the Democratic presidential candidate should give if asked, “Would you pardon President Trump if you become elected in 2020?” What makes you say no?
Preet Bharara: Well, I didn’t say I would say no. I probably would have to think about it. What I’d really like to do, giving myself some homework, is understand a little bit more the reasoning and analysis which I think was done in good faith but I don’t remember because I was five. When President Ford decided to pardon Nixon. There are some arguments to be made that it would’ve sent the country down a very disunited path and to spare everyone of all of that and move on as country there was an argument to do that.
Anne Migram: Yes.
Preet Bharara: I’s like to study that more and see what the reason… Look it cost [crosstalk 00:34:50]
Anne Migram: I feel like I’m giving you a homework assignment, and it did cost Ford the presidency and Nixon had resigned. So he had already stepped out. He had basically stepped out of office. He wasn’t hanging out in office. The legitimate factors to consider when issuing a pardon, there are different ways to think about it. One is obviously contributions to society. Another way to think about is Barrack Obama, he granted clemency, pardons and commutations of sentence I think almost 2000 during his term in office, and he set forth specific guidelines of when people could apply for clemency. Then if people met those guidelines, things like non-violent crime, drug crime. If they met whatever the criteria were they could apply, and so you could imagine a number of ways in which a president or a task force, or commission could do this that could be fair and would clearly let people know what the standards are.
Preet Bharara: So going back to one of our favorite topics ongoing. The Muller investigation. Although the report is done some revelations continue to come out. We now understand that Michael Flynn cooperated in ways that we didn’t fully understand and appreciate before the former national security advisor to the president. We have an instance when Michael Flynn essentially withdrew from the joint defense agreement which meant he was cooperating with Bob Muller that there was, it looks like, some pressure from the president and his lawyers for Michael Flynn to maybe play ball and not cooperate too much. It’s hard to say exactly what happened, but there was a recording apparently that Michael Flynn made of a phone call from John Dowd. One of the president lawyers at the time in which John Dowd says some interesting things and says, “I understand your situation but let me see if I can state it in starker terms. It wouldn’t surprise me if you’ve gone on to make a deal with the government. If there’s information that implicates the president then we’ve got a national security issue. So you know, we need some kind of heads up.”
Preet Bharara: Remember what we’ve always said about the president and his feelings towards Flynn, and that still remains. This is the voicemail message left by John Dowd lawyer for the president for Michael Flynn’s lawyer. So when he says that still remains that has echos and hints of, “Look, if you play ball, we can play ball.” And especially following this entire conversation about pardons and the pardon power and the president’s preparedness and willingness to pardon friends and to punish adversaries. Boy, that’s a hint and a half isn’t it?
Anne Migram: Yes, and Muller actually talks about this specifically and says that he’s not able to figure out whether that’s obstruction first because the attorney-client privilege applies and John Down was representing the president, and the president didn’t come in for a conversation. Never answered Muller’s questions on the obstruction and so what you’re left with is really, in my view, the appearance that there was an effort to tamper with the witness, and to try to get Flynn not to cooperate or not to provide information about the president that was harmful to the president.
Preet Bharara: But you wouldn’t, based on that information alone bring a charge of witness tampering, would you?
Anne Migram: No, I think Muller’s right. You don’t have the evidence to do it. It’s also John Oliver calls this stupid Watergate and when I read the things that came out it was another reminder of what lawyer calls a now cooperator’s lawyer and leaves a message essentially attempting, or at least appearing to engage in witness tampering?
Preet Bharara: Yeah, you know who does that?
Anne Migram: John Dowd.
Preet Bharara: John Dowd. I had some dealing with Jon Down. John Down is also a person who when he represented Raj Rajaratnam. One of the big insider trading defendants that my office prosecuted emailed late at night to reporters things about me that I won’t repeat here. He also after the conviction of his client when approached by camera gave the journalist the finger.
Anne Migram: I remember that. I remember that. Also it’s worth noting-
Preet Bharara: That’s all I’ll say about him.
Anne Migram: … That in the new parts of the memo that we just saw last week it’s clear that also there’s a member of Congress or someone who’s part of congress who reaches out to Flynn, and other members of the administration. So it’s a real concerted effort to try to influence Flynn. I don’t think it’s successful. He ultimately cooperates, it appears, fully with the government. He’s assisted in one prosecution and he’s currently assisting in another prosecution. He’s provided a lot of information, but it’s important.
Preet Bharara: So you mentioned a member of Congress. There’s another member of Congress who made some waves in the middle of the weekend, Saturday afternoon. A Republican congressman from Michigan. Michigan representative Justin Amash who announced on Twitter, by the way, I don’t know him well. I haven’t followed his career. He’s apparently a fairly conservative tea party member of the house of representatives. Conservative in many, many ways more than the president in the classical way, and he issued in a series of tweets a thread, as they say, basically saying that he has some conclusions based on reading the entire Muller report and his principle conclusions are these. Attorney general Barr has deliberately misrepresented Muller’s report. President Trump has engaged in impeachable conduct. Partisanship has eroded our system of checks and balances. Few members of congress have read the report for conclusions. Up top in his tweet the most sort of earth-shattering of which coming from a Republican congressman is President Trump has engaged in impeachable conduct.
Preet Bharara: Now, he has engaged in skirmishes with the president before. Doesn’t seem to be a huge fan of the president but that’s not a small thing.
Anne Migram: It’s still very powerful. Yes, it’s very powerful and it’s very clear he’s also read the report, watched the testimony and has been a student of what’s been happening. Look, one of the things I’ve been surprised by and I don’t want to sound too naive when I say this, but I’ve been surprised by the blind loyalty of the members of the president’s party to the president while he has consistently busted through norm after norm that protect all of us as Americans. And I think you and I both read the report similarly to have had considerable amount of evidence of obstruction of justice, and so to see him say that explicitly. I think it matters and of course the president has already attacked him as well.
Preet Bharara: I talked about this on Stay Tuned last weeks. There’s this letter from former prosecutors. I think it has 900 or something signatures now that lays out all the reasons why they say but for the fact that Donald Trump is the president of the United States he would’ve been charged with multiple counts of obstruction that they lay out coming from volume two of the Muller report. Did you sign that letter?
Anne Migram: I did not sign it. I know you didn’t sign it and I was curious to talk with you about this. So, look, we’ve had a lot of conversations about a number of different parts of this including Senator Harris, Camilla Harris taking Barr to task for not reading the underlying evidence or doing a thorough review. I think it’s fair to say that what I read Muller’s report to be is a prosecution memo setting out the facts and the applicable law. Again, I think it’s important that someone wrote a letter pushing back on Barr because what Barr said is, “This doesn’t constitute obstruction of justice. The president is not guilty of any crime.” And that, in my view, is wrong. There is sufficient evidence in the report to support that the president engaged in obstruction of justice, but then to take to the next step and to say, “The president would’ve been specifically charged with this offense.” It felt-
Preet Bharara: Or these particular offenses that are set out.
Anne Migram: These particular offenses. First of all, it’s usurping the role of the grand jury which is it’s up to the grand jury to decide whether or not to charge or not to charge. Prosecutors present evidence to the grand jury.
Preet Bharara: Well, if you change the question and I said, “Would you have gone to a grand jury and sought an indictment based in this?”
Anne Migram: Even then, the way that they did it they said, “This offense, that offense.” I would’ve wanted the opportunity to have looked at all the evidence. I would’ve wanted the opportunity to decide would I charge it as a, or go to the grand jury as a pattern? Would I go on single counts? It just felt to me like one step too far and what I really support is people saying that, “Look, there is evidence in that report that support obstruction of justice committed by the president.” And if I was sitting as the supervisor I would’ve asked a lot of questions. I might’ve asked for more information. I’m not sure exactly how I would gone forward to present it and I would’ve wanted to have looked at some of the underlying evidence I suspect.
Preet Bharara: So just so I’m clear because my view is that based on what is in the Muller report in volume two but for the presidency a reasonable prosecutor would’ve brought some obstruction of justice charge or charges. I don’t know which particular ones because I would want to look at all the evidence in a more meaningful way in the underlying documentation also. But I agree with the thrust of the letter and that is some charge of obstruction would’ve been forthcoming. How many counts, what for form? I’m not sure. But something would’ve been charged. Do you agree with that?
Anne Migram: Here’s what I agree with. I agree with if I were sitting as the prosecutor I would’ve wanted to have looked at the evidence. I believe I would have brought… Asked the grand jury to consider charges, but again, the grand jury gets to decided what charges get voted, what charges don’t get voted. And what charges and how I really… I just am not comfortable saying without reading the evidence and looking through it more thoroughly. But yes, I agree with the general… What I really agree with is the pushback that what Barr did. One, he’s wrong. When you read Muller’s memo he’s absolutely wrong about whether or not the president engaged in conduct that constitutes obstruction of justice, and second of all he’s not only usurped the power, well, I’ll stop with he’s wrong. And I think that people writing to say the attorney general is not being forthright about this was really important.
Preet Bharara: We’ve talked about so many issues that we haven’t really gotten to something that occurred last week which was the appointment of the United States attorney in Connecticut, John Durham, so take some kind of look at the origins of the counterintelligence investigation with respect to Russia. Do you know John Durham personally?
Anne Migram: I don’t know him personally. Do you know him?
Preet Bharara: I don’t. By reputation, excellent reputation. Has been in the department since 1982. Became the United States attorney at the age of 67. Has very sensitive investigations put in his lap before including alleged abuses by the CIA in connection with enhanced interrogation techniques, and the destruction of tapes of some of those interrogation techniques. Respected by everybody keeps his head down. You don’t know what his voice sounds like, doesn’t go to the press. So that’s on the good side. On the other side I don’t know exactly so I’m not in a position to say much about it. I don’t know exactly what the task is.
Anne Migram: Is it a criminal investigation?
Preet Bharara: I don’t know. Is it just a review? If it’s just a review-
Anne Migram: It looks like it’s a review.
Preet Bharara: But usually reviews result in some kind of report and US attorney’s typically don’t put out reports. I have not seen, as you normally see with the appointment of special counsel, he’s not a special counsel, the transmittal letter saying, “Here’s what I’m asking you to look at.”
Anne Migram: That’s a great point.
Preet Bharara: And so a lot of people are speculating about a lot of things including in the Wall Street Journal editorial page that he does or does not have subpoena power. He does or does not have the ability to do X, Y and Z. I just don’t know. I’d like to know why he was appointed and if it’s not for the purpose of at least considering a criminal investigation why do you give that to the US attorney? Especially when you already have an inspector general-
Anne Migram: Doing a report.
Preet Bharara: Doing a report.
Anne Migram: Yes, so I find this to be very unusual. First of all, you’re right. We don’t know what he was appointed for, what authority he has. Is it civil? Is it criminal? Second of all, there’s an ongoing investigation by the inspector general of the department of justice that’s looking at how the inquiry into the president and Russia got started. Finally, Robert Muller has just written an extensive report basically looking at all these questions, and Muller even says that the investigation wasn’t started by the steel dossier. So a lot of the things that I think have been mentioned as potential problems or raised as potential issues have in my view been addressed or are being addressed.
Anne Migram: So I want to say one other note of caution. I’ve no reason not to believe everything you just said about the US attorney in Connecticut, but one, we’ve been burned before. We’ve said almost verbatim somebody has a good reputation as a member of law enforcement or law. And second, I question… This guy has been given a lot of thankless assignments and has clearly done them well. So I have a lot of respect for that. I find Bill Barr so untrustworthy that to take this assignment… I’m deeply troubled by what Barr is doing.
Preet Bharara: And saying.
Anne Migram: And probably trying to use someone who has a good reputation to do it and so I suspect that he’s part of Barr’s novel, and he’s not writing his own story.
Preet Bharara: I think those are fair points and I think Bill Barr, the degree to which he’s engaging in innuendo and using the rhetoric, the sliming rhetoric of Donald Trump and casting aspersions admittedly without knowing what the facts around the evidence is of FBI agents and the institution generally I think is really unfortunate.
Anne Migram: You know what’s sad, Preet? We haven’t a chance today to talk about space pirates. But next time. Next time there can be some reading.
Preet Bharara: Next time we’ll talk about space pirates. Ted Cruise, what’s it called? Space force.
Anne Migram: The space force.
Preet Bharara: Space force.
Anne Migram: To be continued.
Preet Bharara: Programming note. Next week is memorial day. So we will be taking next week off in observance of that important day, and we hope also that everyone takes the opportunity to remember those who died while serving our country and honor the sacrifice of those who gave their lives to protect ours. Thank you to everyone who served. Thank you, Anne.
Anne Migram: Thank you. Happy memorial day.
Preet Bharara: This is the Café Insider Podcast. Your hosts are Preet Bharara and Anne Migram. The executive producer is Tamara [Shephard 00:47:51]. The senior producer is Aaron Dalton, and the Café team is Carla Pierini, Julia Doyle, Calvin Lord, Vinay Basti and Geeff Isenman. Our music is by Andrew Dost. Thank you for being a part of the CAFE insider community.