Preet Bharara: Welcome to CAFE Insider. I’m Preet Bharara.
Anne Milgram: And I’m Anne Milgram.
Preet Bharara: How are you doing Anne?
Anne Milgram: Hey. Happy Father’s Day.
Preet Bharara: Thank You.
Anne Milgram: What’d you do?
Preet Bharara: I had a nice day. I got to see my dad.
Anne Milgram: Oh lovely.
Preet Bharara: My whole family went to a wedding over the weekend. One of my cousins got married in the great state of New Jersey.
Anne Milgram: Fantastic.
Preet Bharara: And we all stayed over Sunday morning. Had a great brunch. I saw my dad. Hung out with my kids. It was a good day. How about you?
Anne Milgram: Great. We were at the beach. We had a fantastic time with my parents. I got my husband and son … I probably shouldn’t say this on the podcast, matching periodic table T-shirts.
Preet Bharara: Come on.
Anne Milgram: Seriously.
Preet Bharara: You’re trying to out nerd everyone?
Anne Milgram: Case closed.
Preet Bharara: Wow.
Anne Milgram: Game over. Yep.
Preet Bharara: We have some other nerd stuff.
Anne Milgram: We have a lot to talk about.
Preet Bharara: We have a lot of nerdy stuff to talk about, which I guess we should get to. There was this sort of nutty interview released over days that Donald Trump did with George Stephanopoulos. We have some stuff about Flynn and his new lawyer. Kelly Anne Conway being accused of violating the Hatch Act. And we have a new back and forth between the Department of Justice with a spec to subpoenas issued by the House Ways and Means Committee. First, this Stephanopoulos interview.
Anne Milgram: Yes.
Preet Bharara: The totality of which was aired last night. Can I just say a couple of non-substantive things first about this interview?
Anne Milgram: Yes, please.
Preet Bharara: I’m watching it yesterday, and the first thing I notice, and I know this is maybe a frivolous point, but they’re sitting, George Stephanopoulos and the president, in the back of the limo, presidential limo, which is called, The Beast. The first thing I noticed is that the water they have in The Beast is Aquafina.
Anne Milgram: Aquafina? Pepsi water?
Preet Bharara: I guess. Product placement.
Anne Milgram: Yeah.
Preet Bharara: It was very jarring to me.
Anne Milgram: It’s just like the Apprentice, a product placement.
Preet Bharara: Right.
Anne Milgram: Yes.
Preet Bharara: The second thing I noticed, which I didn’t tweet about because I thought maybe the frivolity of my tweets was not welcome by all, but the first scene in the back of The Beast, in the presidential limo-
Anne Milgram: Why do they call it, The Beast?
Preet Bharara: I don’t know. I don’t know why it’s called The Beast. But apparently it has all sorts of crazy powers. It can fly. It’s also a submarine. It can go to Mars of which the Moon is also a part. In the first scene in the back of the limo, The President Of The United States is not wearing a seatbelt and George Stephanopoulos is wearing his seatbelt and you can see the soldier strap. In the second scene in the back of the limo, neither one of them is wearing a seatbelt. Do you think that was like a-
Anne Milgram: And the car was driving?
Preet Bharara: And the car was driving.
Anne Milgram: Yeah, it’s really bad.
Preet Bharara: Should we get to the substance of those interviews?
Anne Milgram: Yeah, but it is really bad. You’re the President Of The United States. It’s the law to wear a seatbelt in the front, everywhere. And in many states, it’s also the law to wear seat belt’s in the back of the car. Not to pull out the law on you Preet, but he should wear it. And they teach you when you have kids everybody in the car has to wear a seatbelt because one person not wearing it is a tremendous threat to everyone in the car. I sound like the National Transportation Safety Board.
Preet Bharara: Are you saying the President Of The United States is not a good role model for kids?
Anne Milgram: I am. On this particular question, yeah. And also, why were they even taping in The Beast? I don’t know. It’s like Bill Barr with the fireplace behind him.
Preet Bharara: But they taped a lot of places. They were walking around. They were in the rose garden. There were lots of places. I thought George did a good job.
Anne Milgram: He did. He asked a lot of follow up questions, and we should talk about the President basically saying in the Stephanopoulos interviews that, there’s nothing wrong. Basically saying, what’s wrong with listening to damaging information? The conversation starts with Don Jr., and Stephanopoulos is pushing Trump on this question of whether Don Jr. Should have gone to the FBI when he first got the email from, you remember the Russian lawyer before they set up the meeting in Trump Tower in the summer of 2016? The response from Don Jr. Is, “If it’s what you say it is, I love it.” It was purported to have dirt on Hillary Clinton.
Anne Milgram: What Stephanopoulos asks is, “Should he have gone to the FBI when he got that email?” And Trump pushes back and says, “Okay put yourself in a position. You’re a congressman. Somebody comes up and says, hey I have information on your opponent. Do you call the FBI? I don’t think …” Stephanopoulos interrupts there and says, “If it’s coming from Russia, you do.” He jumps in and Trump comes back, “I’ll tell you what I’ve seen a lot of things over my life. I don’t think in my whole life I’ve ever called the FBI. In my whole life. You don’t call the FBI. You throw somebody out of your office. You do whatever you do.”
Anne Milgram: Stephanopoulos again, and this is one of the reasons why I thought he was good, he didn’t let it go. He said, “Al Gore got a stolen briefing book. He called the FBI.” Trump makes this distinction Preet that I wanted to talk with you about. He says, “Well that’s different. A stolen briefing book. This isn’t stolen. This is something that said we have information on your opponent. Oh let me call the FBI, give me a break.” I can’t even do it in as sarcastic.
Preet Bharara: Well, no. He does it in that sort of low [hostile 00:04:39] growl, saying, let me teach you a lesson about life, Mister.
Anne Milgram: Can we just stop here though because he’s making this whole distinction. We heard it in a number of ways last week, which is that this is opposition research. This is basically dirt on your opponent, but it actually is stolen.
Preet Bharara: Well, the example that was being given before, the problem was … it was hypothetical, right? Trump is able to say something that is pretty outrageous. And then, because he’s so vague and unclear in his own language, in his own response, and because it was a hypothetical, he has some ability to walk it back because it depends on what the hypothetical is. But the thing that we’ve been dealing with in 2016, and the thing you’re concerned about is, you’re exactly right, is stolen emails.
Anne Milgram: It’s not opposition research. It’s information that was stolen. It was two things, it was information that was stolen from the Democratic Party and the Clinton campaign and it was misinformation that was intentionally driven to social media sites. There are crimes that people have been charged with that form the basis of that information. Now, I’m not saying that Don Jr. or anyone knew at that time, but you have a foreign adversary, you have people from another country, which number one, is a campaign finance violation to accept anything of value, which we’ll talk about in a minute.
Anne Milgram: But number two, it does turn out this is actually stolen information. This is related to a crime of computer hacking. It’s a crime related to social media. You’re exactly right. He creates a hypothetical that has the facts he wants it to have and he’s trying to make this distinction. And he says opposition research, opposition research. This is not opposition research.
Preet Bharara: The thing about this interview and it goes on past what you just quoted from, is the way that Trump answers the question, you know that’s the thing that is really in his mind. There’s always the walk back later when there’s an overwhelming amount of criticism including from Republicans in this case. But you know when does that low growl thing, and it’s in the moment when he’s asked an open ended question, not actually a particularly tough question, that he’s saying what he really thinks. And he goes on, right? Because Stephanopoulos says … I’m sorry. Trump goes on and he says, “Let me call the FBI. Give me a break. Life doesn’t work that way.” Stephanopoulos says, “The FBI Director says, that’s what should happen.” And Trump looks at him and slowly says, “The FBI Director is wrong.” That’s what he thinks.
Anne Milgram: Which is unbelievable because the FBI Director, and look we can disagree with the FBI Director. It’s the United States of America, we can disagree with anyone we want. But here, the FBI Director, the person responsible, the highest law enforcement official responsible for enforcing, investigating violations of United States Federal Law has said, “What you need to do is call us.” And the President Of The United States says, “No, don’t call.”
Preet Bharara: Well, he then says, and this is the basis for his walk back later, because when Donald Trump sort of throws up a lot of different words in his various word salads, there’s always something he can point to later to say, well, he hedged a little bit. So, when Stephanopoulos says, “Your campaign this time around, if Russia, if China …” meaning adversaries, “… if someone else offers you information on opponents, should they accept it or should the call the FBI?” And Trump says, “Maybe you do both.” Maybe. He didn’t say you definitely you do both, maybe you do both. “I think you might want to listen. There’s nothing wrong with listening.” If somebody called from a country … Then he makes up his favorite, Norway.
Anne Milgram: I know. Why Norway?
Preet Bharara: I was just in Norway. It was very lovely.
Anne Milgram: I was feeling badly for the Norwegians.
Preet Bharara: From Norway, do they often provide oppo-research during presidential elections?
Anne Milgram: No, not that I know of.
Preet Bharara: Anyway. He says Norway. From Norway, they call and say, “We have information on your opponent.” Trump says, “I think I’d want to hear it.”
Anne Milgram: Well, first of all, they’re totally different questions. Of course, you’d want to hear. Trump, of course, he’d always want to hear it. And let’s be honest, a lot of people in the world would be like, “Oh you have dirt on my opponent? What is it?” That’s not the question here. The question is, how do you respond? Does it violate US law? And what’s the right thing to do?
Preet Bharara: But then he goes on again right? And Stephanopoulos says-
Speaker 3: I think I’d want to hear it.
George S.: You’d want that kind of interference in our elections?
Speaker 3: It’s not an interference. They have information. I think I’d take it. If I thought there was something wrong I’d go maybe to the FBI. If I thought there was something wrong. But when somebody comes up with oppo-research, right? They come up with oppo-research, let’s call the FBI. The FBI doesn’t have enough agents to take care of it. But you go and talk honestly to congressmen, they all do what they always have. And that’s the way it is. It’s called oppo-research.
Anne Milgram: It’s called oppo-research. Again, what he’s doing is completely confusing two separate things, which is, it’s as old as time that people in America try to get dirt on their political opponents and use that dirt in political campaigns. As long as you don’t violate a law, that’s fine. But if you violate a law, let’s say you break into a campaign headquarters for example, that’s a crime and you’re not allowed to do it. So, it matters how you are getting dirt on your opponent, and who you’re getting it from. The fact that people wanted or have used it is completely irrelevant to this question.
Preet Bharara: Yeah. Look, maybe we should focus on what the crime is. There is a distinction between things that come domestically and things that come from abroad. And why is that? Because from the beginning of the country, from the founding of the Republic, people have been worried in America about influence from abroad. Maybe that’s a little bit less of a concern as 200 some odd years have gone by. But at the founding of the Republic, that was an incredibly serious concern. What does the law say? The law says essentially, “It shall be unlawful for a foreign national directly or indirectly to make a contribution or donation of money or other thing of value.”
Anne Milgram: “To a political campaign.”
Preet Bharara: “To a political campaign.” Federal, state, or local election. That’s explicit in the law. Something that is clear as day. The only thing that is subject to interpretation is, what is a thing of value? In all of these circumstances, just so people are clear on it, if some foreign official, or not even foreign official, some foreign citizen offers to Donald Trump or his campaign or any other campaign for that matter, $10,000, that’s clearly a violation of law. You can’t take that money …
Anne Milgram: Clearly [crosstalk 00:10:38] yes.
Preet Bharara: … if you know it’s coming from a foreign country. You cannot do that. That’s very clear. The question is, if they’re offering something else that’s not cash money, is it a thing of value? There’s a lot of law to suggest that certain kinds of information, damaging information could in fact be a thing of value. In any event, that’s something for law enforcement to determine, not each individual campaign.
Anne Milgram: And it’s an important part of the law. And the law says, “A contribution or a donation of money, or other thing of value.” It’s expected that there could be contributions that go beyond just traditional financial contributions. Why? Because otherwise when it comes to any type of political corruption cases, you have this conversation because people often swap things that aren’t money. So, if you didn’t capture that, you’d have a problem. One thing we should focus on just for a second is that Mueller addressed some of this in Volume One of his report on pages 186 through 187. “A threshold legal question is whether providing to a campaign documents and information of the type involved here would constitute a prohibited campaign contribution. “The foreign contribution ban is not limited to contributions of money. It expressly prohibits a contribution or donation of money or other thing of value.”
Anne Milgram: It states the statute, “The term contribution is defined throughout the campaign finance laws to include any gift, subscription, loan, advance, or deposit of money, or anything of value. The phrases, “thing of value and anything of value” are broad and inclusive enough to encompass at least some forms of valuable information. Throughout the United States code, these phrases serve as terms of art that are construed broadly.”
Anne Milgram: It also makes sense to me that this is a thing of value because people pay for opposition research. People pay to have access to information about their opponents. And so to say that it wasn’t a thing of value when campaigns hire people to go out and get that information, there are opposition research folks that were working for both campaigns.
Anne Milgram: So to say that this kind of information, again I don’t count this as opposition research per se, but it’s information about your opponent. To me, there’s no question that it has to be something of value.
Preet Bharara: What’s extraordinary also about the president’s statement, and I think his honest reaction to George Stephanopoulos’s very basic, open ended question, is that he has learned nothing. Even if you think there’s a way to weasel out of the hypothetical, given what we’ve just gone through with what he calls, “A hoax, and a witch hunt,” this whole business about Russian interference in our election, which I think has been established beyond all reasonable doubt, whether anyone conspired with him. Mueller said we didn’t have sufficient evidence. But the fact of the interference is there and for his reaction to be, “You don’t call the FBI. There’s nothing wrong with any of this.” Given that this has been the whole fiasco we’ve been dealing with, is really, really extraordinary.
Preet Bharara: It also signifies something else. One of the reasons given why there was no charge with respect to conspiracy in part, and not everyone liked this, was some suggestion that Don Jr. And others were naïve and didn’t understand really what the law was and what you’re supposed to do and whether or not they had the right level of intent. Well, now everybody knows. Now everybody understands what the law is. Not to put too fine a point on it, but there was another extraordinary statement made in the last few days. This one from the chair of the Federal Election Commission, Ellen Weintraub, who puts out a statement I think on Twitter. She said, “It’s amazing that I still have to say this.” Not to get too repetitive with respect to the law. But she puts out a statement, which I haven’t seen anything like this before. Which begins, “Let me make something 100% clear to the American public and anyone running for public office”
Preet Bharara: And then restates, what you and I have been talking about, how it’s illegal to take something of value from a foreign national. And then she says, “This is not a novel concept. Electoral intervention from foreign governments has been considered unacceptable since the beginnings of our nation.” And then goes on to say, “Our founding fathers sounded the alarm about “foreign interference, intrigue, and influence.” And then finally she says, “Any political campaign that receives an offer of a prohibited donation from a foreign source should report that offer to the Federal Bureau Of Investigation.”
Preet Bharara: And then, by the way, who else said that? As we’ve already referred to, Chris Wray of the FBI. The Federal Election Commission, Bob Mueller, Chris Wray, any reasonable person understands that if you’re getting an offer of assistance from a foreign national, it doesn’t even have to be an intelligence service, but a foreign national, you don’t accept it and you call the FBI. The fact that Donald Trump still can’t say that forthrightly means that we have maybe some trouble ahead of us.
Anne Milgram: I agree with you completely. It’s the most stunning part of this entire conversation and what he said last week is that, not only does he not get it, he thinks it’s wrong. He really feels that he should be entitled I think to get access to this information. This one is not a close call. This is one of those things where it is a question of the rule of law and it is a question of the safety and security of the United States. Most people in our country would fight and die for the right to be a democracy and to choose our presidents, but as our choice. It is not the choice of foreign governments or foreign nationals as to who we elect. It’s such a fundamental thing for our government and for the President Of The United States to be saying what many national security folks said last week which is, the president has essentially told Russia and China, “Come on. Hack our elections again. Do what you need to do.”
Preet Bharara: It’s an open invitation. It’s an invitation.
Anne Milgram: [crosstalk 00:15:53] we’re open for business. We’re open for wheeling and dealing. Just so people understand, the problem with that is that, you get in a position where there’s a quid where foreign governments are providing information, or manipulating our elections. You’re changing who becomes President Of The United States and you have a president who’s beholden to a foreign government.
Preet Bharara: By the way, this has come up before. Not just with George Stephanopoulos and the president but the May 1 Senate Judiciary Committee Hearing. Senator Chris Coons of Delaware asks Bill Barr, the Attorney General a great question. He says, “Going forward …”
Chris Coons: Going forward, what if a foreign adversary, let’s say North Korea, offers a presidential candidate dirt on a competitor in 2020, do you agree with me the campaign should immediately contact the FBI?
Preet Bharara: Then Barr pauses.
Anne Milgram: Yep.
Preet Bharara: Because he’s a little bit smarter than Donald Trump. And he realizes it’s a loaded question. Where Trump just answered from the gut to Stephanopoulos, Barr pauses. And Coons, rather than allow the pause to turn into an answer, narrows his question a little bit providing Barr with an out. So Barr says, “Foreign intelligence, foreign intelligence service?” Coons then says …
Chris Coons: If a foreign intelligence service, a representative of foreign government, says, “We have dirt on your opponent, should they say, “I love it, let’s meet.” Or should they contact the FBI?”
Barr: If a foreign intelligence service does, yes.
Preet Bharara: Barr refomulates the questions to answer it narrowly by saying, “If a foreign intelligence service does, yes.” That’s enough example of Barr being a bit more clever and a bit more sophisticated-
Anne Milgram: By narrowing it so deeply.
Preet Bharara: Yes, and then the president, but sort of carrying the water of the president’s view …
Anne Milgram: Completely carrying the water of the president-
Preet Bharara: That some of this stuff is not so bad. It’s not so bad. I think the problem starts with the president, but it doesn’t end with him. It continues to the attorney general too.
Anne Milgram: It’s also contrary to the law. One of the things I want to note is that we saw last week that a number of Democrats are talking about introducing legislation now to say, “You can’t do this.” So, the Anti Collusion Act also, the ACA, just like the healthcare bill, they need to find a new name, but the Anti Collusion Act was introduced last Wednesday, would require everyone running for federal, state, or local office to report offers of assistance from a foreign government or agent of a foreign government to the Department of Justice. But you know what’s wrong with that? What’s wrong with that is exactly what Barr just did. The Democrats have bought into that as what’s against the law. That’s not the case. It’s against the law for a foreign national, that means somebody who is from another country.
Anne Milgram: It doesn’t mean a foreign government. It doesn’t mean a foreign intelligence agency. Sure, those are also prohibited, but they’re narrowing it, and everyone is narrowing it so much in a way that is just not consistent with the law. Nobody from a foreign government, from a foreign country can interfere in the US election, period. No one also can steal things, whether you’re from the United States or abroad.
Preet Bharara: I don’t think we need to review. I think we’re very clear on what the law is and what’s going to happen. Going forward, we’ll keep our eye. Yeah.
Anne Milgram: One more thing on the interview, the Don McGahn piece, what did you make of Donald Trump’s statement about Don McGahn? Essentially saying that he’s lying about being instructed by the president?
Preet Bharara: It makes no sense. He’s very clear that Donald Trump was trying to get rid of Bob Mueller. He relies again on the vagueness of his language before to make a different excuse later when it comes under criticism and under scrutiny. Everybody in the universe who has a thinking brain in their head understands the Donald Trump was trying to get rid of Bob Mueller, and that Don McGahn who otherwise had every reason to protect the president and served the president, there was a line he wouldn’t cross. Trump’s assessment that we know, why would he do this? Why would McGann do this? Well, maybe he wanted it to look like he was a smart lawyer. There’s lots of ways to look like a smart lawyer. He was trying to look not like a criminal.
Anne Milgram: Yep.
Preet Bharara: So, moving on. John Durham, the US attorney in Connecticut who has been assigned by Bill Barr, the task of looking at the origins of the [inaudible 00:19:42] espionage investigation involving Russia, a little bit of news with respect to him.
Anne Milgram: Durham has indicated that he wants to speak with CIA officials, and specifically with the officials who are involved in determining that Vladimir Putin, the president of Russia, intended with the election hacking and the interference in the election. The intent was to help Trump win and not just to create chaos in the election and in the United States. And of course, this is something we know the president is obsessed with, whether or not any activity influence the election, he wants to believe that he won the election completely without any involvement or interference.
Anne Milgram: What is important about this, and I sort of think we should pause on this for a minute because I’ve been watching this and every time I see a story about this, I get a pit in my stomach. And so, I just want to sound the alarm, which is that I think we are on a direct collision course here, which is that what Bill Barr we’ll do is come out with a report attacking the FBI, the CIA essentially buying into Donald Trump’s theory that the whole thing was a witch hunt, that the investigation was not properly done, under cutting the entire Mueller and Russia investigation, and doing so in ways that are deeply, deeply problematic.
Anne Milgram: I’d love to hear your take on it, but this probe I think … I could tell you where it’s going to end and that makes me very nervous. I’m not saying that Durham is political, I’m just saying that Bill Barr clearly has a goal in mind. What we’re already seeing is this idea that you’re going to question the CIA. Again, everyone deserves to be held to account, but this is different, and in my view, it feels much more political than we would want it to be. Get the 9/11 commission. Literally, if they went out today and got the exact same people who are constituted on the 9/11 commission to do a review of this entire Russia and the response of the US government, okay, that’s fine. Have that conversation.
Anne Milgram: But we’ve seen that Robert Mueller has done a series of indictments, and I believe, a very persuasive argument, a case for why and how the Russian government interfered with the election. So, to suggest that starting an investigation into that was not legitimate, what do you think Preet? You may not be quite as alarmist as I am on this, which I would welcome by the way, because it concerns me.
Preet Bharara: Yeah. I don’t know. Hope springs eternal, but you said something interesting a second ago and that is, you have some trust in John Durham. I do also, based on his reputation. I don’t really know him personally, but he’s had a lot of challenging, tough assignments that are politically sensitive and it involve the highest levels of government. He’s done it before and he’s done a good job and I think he’s gotten praise from both sides of the aisle. However, I also had faith and trust in Bob Mueller. That doesn’t stop, it appears, Bill Barr from putting his own gloss on the work done by other people who are pretty neutral about these things.
Anne Milgram: Isn’t it actually smart if he’s trying to get to a certain end? He picks someone who will be seen generally as … and then uses-
Preet Bharara: Yeah. Durham puts together some information, a report to compile something, and maybe that doesn’t even get released, but Bill Barr puts out principal conclusion [crosstalk 00:22:47].
Anne Milgram: A four paged summary.
Preet Bharara: It’s not a summary.
Anne Milgram: Yes.
Preet Bharara: That is much more dire in how it characterizes. As we’ve learned on the show and you learn in America, characterization of things …
Anne Milgram: Framing.
Preet Bharara: … and rhetoric about things, in some ways can be as important as the thing itself. And sometimes more important, especially if people don’t read the underlying thing, either because it’s too long, and they don’t have time in 48 pages of the Mueller report, or because it’s secret are classified and then you can proceed by innuendo and brazen rhetoric. I don’t know. I think we’ll have to wait and see. I’m concerned that it’s a cynical exercise like you described, but I don’t know.
Anne Milgram: I may be a little more cynical today. I just think it is very possible that Durham is just a pawn in somebody else’s chess match. That would be Donald Trump’s chess game with Bill Barr sitting right at his side. Let’s go a little more [crosstalk 00:23:34].
Preet Bharara: I don’t know that he plays chess.
Anne Milgram: Well you, you know what I’m saying? So, here’s the other question. Is there anything that anyone can do? I don’t think so. This investigation, Durham’s investigation is ongoing. The president has given Barr authority to declassify information. It seems weird for Congress to hold hearings into an investigation. I feel a little bit like we’re just watching a train wreck happening and it’s sort of slow motion.
Preet Bharara: Kind of rerun.
Anne Milgram: Yes.
Preet Bharara: Yeah. There are some things you can do after the fact. If there’s a new administration and then the next administration raises the curtains and says, “Well, we’re going to release more information.” Look, there’s a cost to every time there’s a concern about an investigation releasing confidential information, sometimes declassifying information with respect to that investigation, and you just go round and round, circle after circle after circle. But, well, I guess we’ll have to see. Michael Flynn, the former National Security Advisor whose story never seems to end. I keep thinking, okay, we’re kind of done with that guy. He’s been charged, he pled guilty. He’s going to be sentenced. In the middle of that sentencing, some months ago, where everyone will recall, the judge didn’t seem too sympathetic to him when the defense lawyer tried to make Michael Flynn sound like a victim, even though he had pled guilty under oath and conceded that he had committed a crime. He knowingly did that.
Anne Milgram: And had committed other crimes beyond which he had nor pleaded guilty to. You also got me to say pled Preet.
Preet Bharara: It is pled. So, they asked for an adjournment of the sentencing, which the judge granted and now as we were nearing the new sentencing date, Michael Flynn fired his lawyers at the esteem firm of Covington & Burling and hired a new attorney, Sidney Powell, who I don’t know [crosstalk 00:25:10].
Anne Milgram: I don’t know her either.
Preet Bharara: But you do some reading on her, I guess the strategy and the tactic of dealing with the case seems to have taken an abrupt shift, because Sidney Powell is someone who was a former federal prosecutor many, many years back in the ’80s I believe for a period of time and is a very, very vitriolic critic of law enforcement, and the FBI in particular.
Anne Milgram: Yes, and a Fox News commentator. It’s been out there. She wrote a book in 2014 called License to Lie exposing corruption in the Department of Justice. So, she’s a conspiracy theorist of some sort. She’s talked about the Mueller investigation being a complete setup to impugn the president and make it as hard as possible for the president to carry out his duties.
Preet Bharara: And chooses colorful phrasiology on television. There’s this phrase that people know about called “mission creep” where you could assign something and you expand beyond that. People said that about Ken Starr. Some critics of Mueller said that about him. She turned the phrase on itself and said, “Well, actually they’re more like preeps on a mission.”
Anne Milgram: It’s hard not to laugh at that. Yeah.
Preet Bharara: It’s very clever rhetoric on-
Anne Milgram: She’s not a fan of Robert Mueller and his-
Preet Bharara: Yeah, so now it looks like, even though this is the thing that seemed to have gotten Michael Flynn in trouble with the judge because he wasn’t having any of it, compared to what Sidney Powell likes to say, a fairly mild sentencing submission in which the Mueller team was criticized and in which Michael Flynn was made out to be the victim and poor, sorry, pathetic Michael Flynn who was only a general for a long time and the national security advisor that he was set up and victimized by all of this.
Anne Milgram: The judge was having none of that.
Preet Bharara: None of that. Now, to double down on that strategy by firing those lawyers as perhaps two weak on this point and hiring a bomb thrower who calls people on the Mueller team creeps on a mission. And they said in other circumstances, the entire investigation was a setup and none of this is a crime. My client, I assume she was going to say, as the prior lawyers made it seem like they were about to say, was the victim, that they’re on a course to withdraw the guilty plea, which I don’t think will succeed because I think the judge is seeing a lot of nonsense happen. But it’s an interesting strategy, not one I would pursue. What do you think?
Anne Milgram: One interesting point is that she wrote an op-ed for the Daily Caller in February, 2018, praising the fact that Flynn’s case had gone to judge Sullivan and wrote, “Judge Sullivan is the perfect judge to decide General Flynn’s motion. The judicial hero of my book, Emmett Sullivan held federal prosecutors in contempt for failing to disclose evidence, dismiss the corrupted prosecution of Alaska Senator Ted Stevens and appointed a special prosecutor to investigate the Department of Justice.” So, she’s a huge fan of Judge Sullivan. I remember listening to Judge Sullivan and the Flynn during the Flynn sentencing hearing.
Anne Milgram: He essentially accused of Flynn of betraying his country. He went so far beyond, Flynn’s lawyers were saying he made a false statement, he did some things wrong, but they were really saying he’s been so cooperative and helpful. He didn’t do that much. Sullivan was the exact opposite, was basically saying like this is the United States general who had this incredible opportunity and he betrayed his country in the way he dealt with the Russians and all these other things. I think if that’s the strategy to go in and say, “The entire Mueller investigation was a setup, Flynn is innocent, please let him withdraw his plea.” I think it’s a terrible strategy to walk in on, particularly knowing what we know about where the judge has been on Flynn.
Anne Milgram: The judge was a lot harder on Flynn than I think the government even expected. You’re right. It was pretty softly written. Everyone was saying don’t give him jail, and then the judge was about to put him in jail and that’s why they continue …
Preet Bharara: That’s what it looks like. Certainly.
Anne Milgram: That’s why they continue in my view.
Preet Bharara: All right, next topic. We haven’t really talked a lot about this person, I don’t think.
Anne Milgram: I don’t think we’ve ever spoken about her.
Preet Bharara: Kellyanne Conway. She has a lot of roles. Her job title is counselor to the President, I believe. She was obviously a chief spokesperson for the president and the principal thing that she appears to do is talk on behalf of the president on television.
Anne Milgram: And fight with her husband on Twitter. [crosstalk 00:29:13].
Preet Bharara: They only fight on Twitter. He says a lot of things that are very interesting. He’s a smart person and he’s a really, really, really strong …
Anne Milgram: Anti Trump twitter.
Preet Bharara: … critic of the president. I retweet him often because he also does a good analysis of the various statutes of the Mueller report and everything else. I don’t think he mentioned his wife.
Anne Milgram: You might be right.
Preet Bharara: But it’s an odd circumstance, and I don’t know that he’s commented on this, but there’s this office, not to be confused with a Special Council’s Office, which no longer exists that was run by Bob Mueller, but there’s United States Office of Special Counsel, OSC, which is an independent federal agency that basically is an ethics oversight watchdog entity, that among other things monitors and tries to punish violations of something called the Hatch Act, which by the way, the Hatch Act, for a long time, I thought it was named after Orrin Hatch.
Anne Milgram: I did. It’s not?
Preet Bharara: The senator from Utah who is no longer in the Senate, replaced by Mitt Romney. It is actually named after Senator Carl. Who knew there were two Hatches. Senator Carl Hatch of New Mexico back in 1939, which attempts to limit the political activities of federal employees. You and I have both been federal employees at various times and there were lots and lots of things that we were not allowed to do. In essence, the Hatch Act restricts the political activity of individuals other than, there’s one exemption or two exemptions?
Anne Milgram: Two exemptions.
Preet Bharara: Other than the president and the vice president employed or holding office in an executive agency other than the government accountability office. So, if you’re the president or vice president, you can do or say whatever you want.
Anne Milgram: Because they have to run for reelection.
Preet Bharara: Yes.
Anne Milgram: And because they’re part of the political apparatus of their party.
Preet Bharara: But if you were a counselor to the president or Chief of Staff to the vice president or the United States Attorney or an assistant US attorney or anyone else …
Anne Milgram: Anyone who works in the federal government, basically.
Preet Bharara: There are certain partisan political act, obviously you have the right to vote and you have the right to give money, to give donations.
Anne Milgram: You have the right to campaign. You just can’t use your …
Preet Bharara: Official title.
Anne Milgram: Exactly.
Preet Bharara: Yes. The point is you can’t use your official title role station and all the power that that offers brings.
Anne Milgram: To support a political candidate.
Preet Bharara: Right. If I went on my Twitter account when I was a United States Attorney, and those things were monitored very, very carefully. Now, I spat off because, who cares? I’m a private citizen, and I have this great podcast with you. But when I was an office, when you were an office, if I started making endorsements or criticizing people in connection with an election, they would’ve I shut down my Twitter account in about four seconds, and I would’ve been accountable to the Office of Special Counsel in a very serious way.
Anne Milgram: Yes, it’s worth noting. I remember when I first got to the Department of Justice, there was an entire presentation, a lecture on the Hatch Act and basically they scare you. They basically make it clear, you can vote, you can even go out and go door to door canvassing for a political candidate, but you can never tell anyone that you worked for the United States government, and you can’t mix your business with your personal. So, particularly where, for example, on Twitter, if you use your Twitter account for business purposes, you can’t go out and start retweeting political campaign things. You’re crossing a line. The idea is just to keep politics out of the federal government.
Anne Milgram: There’s a good reason why. You can imagine, and this is how it started, that if you’ve got federal employees who are out campaigning for an elected official, it has the imprimatur of the government and there’s a lot of power and influence that goes with that. And so, they keep it out. I had to sign something, and I bet Kellyanne Conway had designed something too. I had to sign a document saying that I understood the restrictions of the Hatch Act.
Preet Bharara: It’s not just because the official can then have an undue influence, but it also will result in the undermining of the credibility of that public official too. It’s actually for the public official’s own good. There are similar restrictions in the Hatch Act. I also could not, for a good reason, endorse a product and tell people …
Anne Milgram: Aquafina.
Preet Bharara: … buy Aquafina using my … I could tell people informally-
Anne Milgram: Did you just wear Aquafina T-shirts under your suit when you were doing press conferences, subtle product placement?
Preet Bharara: No, I did not do that. Yeah, but you’re not supposed to use the official power of your office and title and influence of your office. It’s another different situation. But for the same reason that if I got stopped by a cop, if I was speeding, it was a no, no to roll down the window, and before they asked me for my license registration, explain to them that I was the United States Attorney for the Southern District of New York.
Anne Milgram: I feel like this is a setup because I was stopped when I was AG.
Preet Bharara: Well, I didn’t know you were going to tell this story, but I hoped you might.
Anne Milgram: I feel I’ve been set up, ladies and gentlemen, to honest.
Preet Bharara: Wait a minute. You were race speeding?
Anne Milgram: I was driving my, I think it was a 1993 Honda. This was in 2007, I think.
Preet Bharara: Good car.
Anne Milgram: Great. We only got rid of it when my son was born because we were trying to understand how to put a car seat in and someone said to us, “You know that cars before 1996 don’t even have modern safety restraints. You cannot put a baby in this car.” Yeah, I was running errands in the morning before work, and I had full time state trooper protection, but I only use them for my official duties. I would never use them for my personal errands. I was out in my car rushing to get back. I don’t want to say I was caught in a speed trap, but I would just say it was a little bit … but I was guilty. I was guilty.
Preet Bharara: The people who caught you, “speed trap” …
Anne Milgram: Okay. It’s a great story. Yeah.
Preet Bharara: … are in fact your underlings.
Anne Milgram: Yes. So, this is a great story.
Preet Bharara: You’re their boss.
Anne Milgram: I’m their boss. The AG in New Jersey is, this has taken a turn I didn’t expect, but I’m going to walk right into it and be transparent. The AG is the chief law enforcement officer and has authority over every police officer and prosecutor in the state. So, an officer pulled me over. My immediate reaction is I can’t let him know who I am. Basically, like I’m just going to take the ticket. Usually, I talk to everyone, pretty social. I literally take my driver’s license and registration out of my thing, and I just hand it to him. I’m not even making eye contact. At the same time, he goes back to check my license. I immediately sent a note to the troopers who were with me because they had my registration and license on alarm. So they would find out if anything happened to me first.
Anne Milgram: They always want to make sure that, what if I was in an accident, they would want to find out.
Preet Bharara: So, if someone runs it, they know.
Anne Milgram: Exactly, so they would get a ping. I basically send a note saying, “I just got pulled over. I’m fine. Don’t do anything right.” Not that I thought they would, but you have to be really careful. The guy comes back and says, “You were speeding. Here’s your ticket.” I say, “Thank you officer. I appreciate it.” I get my car, I drive to work. I basically say, “I just got a speeding. I’m going to pay it. By the way, we need to publicly announce it because …”
Preet Bharara: Well, that’s amazing to me. Can I tell this story about you to people when they want advice on how to be a leader and how to stay clear of trouble that you proactively put out a release describing the incident?
Anne Milgram: Yes, because we oversaw them. First of all, I needed to take responsibility because I oversaw the police officers. It was honestly the first time I’d ever been given a speeding ticket in my whole life. I was very upset about it.
Preet Bharara: You’re so boring.
Anne Milgram: I know, but I got a big one. I made up for it by doing it when I was AG. So, I put it out and actually my press guy who I love, wrote, “I was stopped in my 1993 Honda,” which led to a lot of very funny conversations about why I drove a 1993 Honda. Perhaps the funniest conversation came from Chris Christie who has since said publicly, he had been stopped, but he had never said anything publicly, said to me at one point, “God, if I’d known how much good press you could get out of it, I would’ve just told people.” But I did not do it to get good press. I did it because I was the head of the law enforcement community and I had to be forthright about it.
Anne Milgram: Now, here’s the other funny story which I’ve never told, which is that I said to, our communications director, I said, “Please call the chief. I don’t want to do it, but please make sure that he knows we’re about to release a statement.”
Preet Bharara: The chief of?
Anne Milgram: The chief of police of the department where it happened. I just didn’t want them to be surprised, caught off guard. The chief swears to my communications director that I had not been stopped. He swears I would know about it. There’s no way it happened to the point where I had to give a copy of the ticket to the communications director to send it to the police chief who then was deeply apologetic, which he shouldn’t have been because it was exactly the right thing that happened. Subsequently, there was an item on the tests for the new police officers that they had to identify the name of who the stage he was because clear the guy had no idea who I was, but it’s a great thing that he didn’t know and I would have insisted on the ticket and so he made my life better. How do we get here from Kellyanne?
Preet Bharara: Well, no. I’ll tell you why, and not to overly praise my cohost, but your instinct not to use your official position and not to try to get away with something that any ordinary citizen will not be able to get away with is exactly the kind of instinct that I think makes you a good person and a good leader and is exactly the kind of instinct that is utterly lacking in most members of the Trump inner circle, including his family, including members of his cabinet, even though some of them have $1 billion on the side anyway, think that office is for the perks, and they exploit the perks, and they’re happy about the perks, and they boast about the perks. It’s not about the perks, it’s about the service.
Preet Bharara: If more people I think had this point of view, I think they would get in less trouble. Now, going back to Kellyanne Conway, we can talk about the particulars of what she’s been accused of in terms of the violation of the Hatch Act. But the way I look at it, separate from those particulars, there’s this defiant attitude on the part of Kellyanne Conway and others. And you can have disputes about each individual violation, whether or not it infringes on free speech or otherwise. But there’s this attitude, which is very different from the one you just described of entitlement. And the laws don’t apply to me, and the rules are stupid, and why should we follow them? You could make the argument.
Anne Milgram: That’s in everything. It’s not just in this. It’s in the congressional subpoenas, in everything.
Preet Bharara: Yeah, it’s in all things. And look, you can make the argument that it’s silly. You’re the attorney general of the state, and it’s important for you to be able to get to someplace on time, and it’s absurd. You could make this argument, and it’s absurd that you would be stopped and get a speeding ticket, and it’s silly they work for you. I think that’s what Donald Trump would say. But you don’t make that argument. If you think a rule is not good, or you think the law shouldn’t be applied to you, then make an argument for changing the law.
Anne Milgram: Change law. Exactly.
Preet Bharara: Changed the law as opposed to after the fact say, “Well, let’s kind of stupid and we’re just going to do what we want to do. Look, there are some laws and rules that are maybe not perfectly calibrated and that are incorrect and maybe go too far. But that’s not the issue I have. The issue I have is they seem not to care. They seem, actually I don’t curse that often. They seem not to give a shit at all about what the rules are and think that they should be able to do what they want to do. Whether it’s about taking foreign help in connection with an election or being able to say political things on your basically official Twitter account to any one of a number of other things. That’s the thing that makes people like you and me crazy and reasonable people upset.
Anne Milgram: I think it’s even worse than that in some ways if that’s possible, because they think the rules, and the laws don’t apply to them, but they’re quick to point out that they should apply to other people or quick to try to hold people accountable when it suits their political purpose. Also, what message does it send to every federal employee? And there are hundreds of thousands of them across the United States. What does it send that people are fired for this on one violation? People are forwarded to the Merit Systems Protection Board and they adjudicate these violations. People are held accountable, people have been terminated for this before.
Anne Milgram: So, this wasn’t the first time this had happened. She had been warned in 2008. There were multiple instances on Twitter in public interviews. and they haven’t corrected it and they’ve had repeated conversations. So, it is thinking that you’re above the law and thinking that the law applies to everyone, but you that it is so deeply problematic. One of the things I found really fascinating by the report that went out, they basically say, we’ve never had to do this with someone who works in the White House. Essentially, they’ve never gone to the White House, for presidents of both parties and said, “There’s a problem with one of your employees violating the Hatch Act,” and not had it immediately corrected or resolved.
Preet Bharara: Here’s what the office of Special Council that monitors the Hatch Act said about Kellyanne Conway. [inaudible 00:41:20] for a number of pages [inaudible 00:41:21] to sort of do the quick summary. “Beginning in February, 2019, Ms. Conway, during official media appearances, engaged in a pattern of partisan attacks on several democratic party candidates shortly after they announced their candidacy for president, including Senator Cory Booker, Senator Elizabeth Warren, former Congressman Robert Francis Beto O’Rourke and former vice president Joe Biden. For example, in one interview, Ms. Conway insinuated that Senator Booker was sexist and a tinny motivational speaker.
Preet Bharara: In another, Ms. Conway said Senator Warren was lying about her ethnicity and appropriating somebody else’s heritage and then goes on and on about things that she said in media interviews and also on her Twitter account that they determined the office determined she uses to execute her official duties. All sorts of partisan political statements-
Anne Milgram: She’s involved in the campaign. She’s getting involved in the campaign on Trump’s behalf.
Preet Bharara: There’s a lengthy response from the White House pointing out a lot of things, including their allegation that the proper procedures weren’t followed and there was not an opportunity to respond and rebut some of the allegations. Some of the points, we were discussing this before. I tried to look at these things with an open mind, and I do think there’s a flagrant abuse of power going on in lots of places, and I think Kellyanne Conway has proven herself to be someone who doesn’t tell the truth and who carries water in a way that does not reflect well on her and her veracity. I think she was defiant in not trying to figure out a way to properly serve the president in the appropriate role and also be mindful of the Hatch Act.
Anne Milgram: She doesn’t even respond when they-
Preet Bharara: Look, and one of the things that the response from the White House makes clear, and you can have two minds about this, it looks like the head of the OSC was personally offended by the way that Kellyanne Conway reacted before. I think in the beginning of the report it recites how Kellyanne mocked the authority of the OSC by saying, it’s literally the top of the executive summary of the report put out by the Office of Special Counsel where they say, “Ms. Kellyanne Conway, counselor to the president, reportedly scoffed at her responsibilities under the Hatch Act and ridiculed its enforcement by asserting, “Let me know when the jail sentence starts.”
Preet Bharara: It is clearly the case that part of the reason that Kellyanne Conway got put in the doc for this is that there was this sort of obnoxious scoffing at rules, which I understand and appreciate, and it’s something that I think makes people like us annoyed, irritated, upset, but did the Office of Special Counsel make a mistake in making it so much about personal offense?
Anne Milgram: Well, sometimes we have to try to disentangle all of these pieces because it’s very clear that they’ve been having these conversations with her and with the White House counsel in 2018 and now again since February of this year, 2019. So, it’s not one thing. It’s repeated and it’s clear that there are formal, at least two formal complaints that have been made. So, they’re frustrated and that frustration is understandable, but whether or not you’re frustrated doesn’t make it a violation of the law. But what I see when I look at this is that she’s clearly involved in the campaign. She’s clearly I’m trying to wear two hats, both the political campaign hat and the White House counselor hat, and my view is that the Hatch Act prohibits that.
Anne Milgram: I think they’re well within their rights to basically say, “Look, you’re violating this. This has to stop.” Now, She scoffs at it. She doesn’t even respond to their letters. The president says, “I’m not going to fire her for that. She’s terrific.” One of the things I think we all have to be asking ourselves as we go into 2020 is, there are people in the Department of Justice, there are people in other federal agencies who are being held accountable under this law and under these roles and they’re basically saying like you said, “We’re above the law.” Is that the kind of government that you want? It’s not corruption “C” where you’re stealing money, but it is corruption “c” where you think you get to do what you want because you won the election to be the president of the United States. And then the question is, where’s the line?
Preet Bharara: Because not everyone, look, when you get elected president and you have a staff, obviously there’s a political aspect to that and obviously there’s going to be some room and there’s going to be some blurring. That’s just inevitable. And particularly for somebody who’s not a US Attorney whose whole job is supposed to be apolitical, but somebody who’s a counselor to the president who’s basic skill is communication and communication with lots of barbs and lots of invective and clever rhetoric that, I get all that. But there is, for good reason, a separation between politics and governance. And when you get elected president and you have a staff, they serve all Americans, not just a particular party.
Preet Bharara: You and I both worked in the Senate. There are lots and lots of rules, not just the Hatch Act that ensure a wall between politics and governance. I was chief counsel to a senator. You were chief counsel to a senator. I never once was able to or involved in or had the authority to do anything with respect to a campaign on the part of Senator. Senators are not allowed to have campaign calls from their Senate office, from their official tax payer funded Senate office building. When Senator Schumer had to raise money in connection with his own reelection campaign or for the DSCC, the Democratic Senatorial Campaign Committee, he had to get in a car and drive to another office that was paid for by the committee …
Anne Milgram: Yeah, that’s a great point.
Preet Bharara: … to make those calls. If anybody ever mentioned to me, I remember this, being advised about this. If any lobbyists or anyone else who advocating for a position ever mentioned to me that they, and it has happened once, ever mentioned to me that they were a friend of the senator by which they meant …
Anne Milgram: A contributor.
Preet Bharara: … a contributor to the senator, that’s the last time I spoke to that person. I never spoke to that person again. I would advise other people not to speak to that person because I know people may not believe it and people are very cynical and maybe people … we’re not as careful about this in being stopped by the police or talking to lobbyists like I was. But that is the way it is supposed to work. And when you have people like Kellyanne Conway and others thumbing their nose at it, then I think you have a problem. And as you said, this should be an accommodation that should be reached. When complaints are being made, Kellyanne should’ve been able to say, and lawyers should have been able to say, assuming that the Office of Special Counsel folks are reasonable, it’s like, “Look, you either have to split your role or you have to find other venues where it’s appropriate to talk about these things.”
Preet Bharara: One of the points that the White House makes it’s not ill considered fully is that some of the occasions where the Special Counsel is saying Kellyanne Conway breached the Hatch Act were times when she was on television, and she did not volunteer some view about Cory Booker, but she was asked about a candidate. One could argue that a natural reaction for someone who’s a counselor to the president is to respond in kind. The better answer, if you’re being careful about the Hatch Act, just say, you know what?
Anne Milgram: I can’t talk about the [crosstalk 00:47:55].
Preet Bharara: That’s politics. I’m not here to talk about politics. I’m here to talk about the president’s policies. They also make an interesting point that you’ve got to be careful about a distinction between a pure campaign partisan statement and a policy statement and disagreement with people who are in. Obviously, Cory Booker is a sitting United States senator. It should be appropriate for people who work on the White House staff to criticize someone from the other party on an issue of policy or something else. Kellyanne Conway probably could have succeeded in fulfilling her duty to the president and promoting the presidents agenda in a way that didn’t have to be so blatantly violative of the Hatch Act.
Anne Milgram: Yes, there is a legitimate argument to be made that she can be critical of the people who are in government who are running for president on policy questions. But when you look at her tweets, there’s no question that it’s a political thing and she’s also forwarded campaign tweets. So, that crosses the line.
Preet Bharara: Suddenly, the president is powerless to respond. Of course, he can respond. The vice president can respond. And then [crosstalk 00:48:51].
Anne Milgram: He has a whole army, an army of people.
Preet Bharara: And he has the head of the RNC and there are many, many, many people.
Anne Milgram: Surrogates outside of government, yes.
Preet Bharara: Yes. Exactly, look, there’s a reason why the president cannot … there was a whole scandal about raising money from the Lincoln bedroom. Not raising money. What was that again?
Anne Milgram: Selling the Lincoln bedroom, so like all the high donors got to sleep in the Lincoln Bedroom.
Preet Bharara: Yeah. You cannot have a fundraiser in the White House. There’s a reason for that. That’s not the same as a hashtag violation, but their reasons for these rules, they’re important that they be respected and followed.
Anne Milgram: One other note on the White House’s response, which by the way, it’s very well written. They’ve clearly said, “Look, we’re going to have a fight with you because we don’t want to listen to any of this stuff.” They talk about the first amendment, and it is always been clear that people have the right to speak out and to free speech in the United States. What the Hatch Act has always tried to do is basically say, when you’re with the government, you’re with the government. If you want to do it personally on your own private time, and in no way using your connection to the government, letting anybody know that you’re with the government. But yes, you can make a political donation, you could go show up at someone’s house and say, “I think you should vote for so and so.” They’re raising an issue that I think is a longstanding issue.
Anne Milgram: That’s a reasonable conversation to have, but again, I think that the Hatch Act comes down in the right place. The thing that I really found problematic about the White House’s response is that one of their first arguments is that the office of special counsel has failed to follow the appropriate procedures required under the law. What is unbelievable about that is that there have now been more than 35 federal cases in which this administration has been found to have violated the Administrative Procedures Act. What that means is that when there are laws, and there are ways that policies, and I’m not even sure it applies here to the Hatch Act in truth, but there is an entire regulatory system in the United States where when you’re passing in an agency, think about the environmental protection agency, they’re passing environmental regulations.
Anne Milgram: There’s a legal process that they must follow and go through in order to pass those regulations, which allow for public comment, dialogue, and there’s a process that has to be followed. The people who have followed it the least of any administration is the current president of the United States, and for them to make as one of their prime arguments, which is like, look, you’re not following the right way that the policies and procedures are supposed to be followed, it’s just another example to me that they choose when and what laws to abide by. When it suits them, they are quick to walk into court and say, “Look, other people should be following these.” When it doesn’t suit them, they just blow right by them.
Preet Bharara: That’s a great segue to another controversy and fight and battle that’s been going on, and we talked about on the show before and that is a particular request for the president’s tax returns by the House Ways and Means Committee. We talked about this before. We talked about chairman Neil’s letter to the Treasury Department asking for the tax returns. Well, this past week, after Steve Mnuchin, the treasury secretary made clear that he would refuse to turn over the tax returns, he now has the benefit of an opinion, a written opinion by the Office of Legal Counsel at the Justice Department defending his refusal.
Preet Bharara: Remember the Office of Legal Counsel, we’ve talked about many, many, many times. There was supposed to be semi-autonomous and independent within the Department of Justice. They make legal conclusions and interpret the constitution for the federal government, particularly the Department of Justice. They’re the ones who brought you the two memos on whether or not the president could be indicted, a sitting president saying they could not be. What do you make of all this?
Anne Milgram: I think it’s a lot of woof and quack to me.
Preet Bharara: It’s a lot of what?
Anne Milgram: Woof and quack.
Preet Bharara: I don’t know even know … is that about farms?
Anne Milgram: No. It’s a lot of nonsense.
Preet Bharara: Did you make up that phrase?
Anne Milgram: No, I did not make up that phrase. It’s a lot of nonsense. It’s a lot of like …
Preet Bharara: I’m 50 years old. I’ve been in America for 49 years. I haven’t heard of woof quack.
Anne Milgram: Oh, it may be from a children’s book. I’m not sure.
Preet Bharara: Well, I think we should use it much more often.
Anne Milgram: Let’s bring it back if it was ever popular. The statute says that the Treasury Department shall provide the information.
Preet Bharara: Shall.
Anne Milgram: Shall. What does shall mean Preet? This is day one of law school.
Preet Bharara: Shall means must.
Anne Milgram: Shall means must. That means-
Preet Bharara: The statute itself doesn’t say that you have to provide a reason. The opinion actually makes that clear. So, kind of interesting. The opinion that back Steve Mnuchin refusal says, “We advise that although the text of the section does not require the committee to state any purpose for its request, Congress cannot constitutionally confer upon itself the right to compel disclosure by the executive branch that does not serve a legitimate legislative purpose. And then they, as we’ll talk about, they make the argument that the reason for the request is not the real reason, that it’s a pretext.
Anne Milgram: Right. They decide that because it’s a pretext, they have the ability to not comply with the statute, which says, “Shall provide the information.” My overall takeaway is that the office of Legal Counsel, I don’t want to say it’s never been politicized because I know it has been. This felt incredibly political to me, and it made me sad for the Department of Justice and all the good men and women that worked there. As you and I both know that it’s essentially rubber stamping this decision not to follow the law, basically. They don’t go to court, this is their internal support. Instead of having gone to court up front and basically said, we think it’s a pretext.
Anne Milgram: They do this opinion by the Department of Treasury, they do this opinion by the office of Legal Counsel, all sort of putting all these bells and whistles around the fact that the bottom line is they’re just not complying with the law, and they’ve made a decision. “We don’t like it. We don’t like that you’re asking for this. So, we don’t want to comply with it.” That’s just not the way that the law can work. By the way, again, you can think the law is wrong. You can think that Congress shouldn’t get access to any individual’s tax returns without making a showing of good cause, but the law doesn’t require that showing.
Preet Bharara: Yup. In fairness to the administration’s point of view, you and I discussed chairman Neil’s letter asking for the tax returns. Which day did this sort of random purpose for wanting them that week. We criticized that it was not expensive. Pretextual is a loaded term, but it seemed not the thing that was really …
Anne Milgram: It was a little too cute.
Preet Bharara: Yeah, and there were good reasons either to say nothing and say we just want this because the statute does not require, as everyone seems to acknowledge. The statute does not require, a purpose needs to be given, or they could’ve laid out all sorts of reasons. There are many, many, many legitimate reasons, both that relate to oversight and to legislative function for asking for the tax returns. Now, the office of Legal Counsel acknowledges that in various circumstances, in various places, members of Congress have stated other purposes for getting the tax returns, and they lay them all out in a footnote, in the opinion, in footnote 19, and what some people have observed, including Professor Marty Lederman, who is a smart guy, who says, “What’s really extraordinary about the opinion is not the fact that they’re alleging, there’s a pretext.
Preet Bharara: But that they’re saying all these bases to get the tax returns, including to discover and expose Trump’s potential conflicts, including to protect against violations of the emoluments clause and conflicts of interest, including to make sure that the president, and his family are not hiding financial ties that could cause conflicts. All sorts of reasons. The administration is now saying none of those are legitimate. As Marty Lederman points out in a Twitter thread that I thought was right on point, “In this respect, the OLC opinion is of a piece with Trump’s brief in Mazars.”
Preet Bharara: That’s the case where the oversight committee has been asking for financial information from Trump’s accountants. That’s being dealt with in the courts in the DC circuit right now. Marty Lederman says, “It’s a fundamental attack on the power of Congress to investigate and expose to itself and the public whether and how the POTUS’s duty of undivided loyalty to the public interest may be compromised.” Marty agrees with us that OLC is basically correct that the IRS oversight justification, “Even if it’s not pretextual, it’s certainly not what’s driving the train either. This is part of a pattern of this administration, no matter what the department is.” Saying, “Congress really has no role in investigating anything having to do with the president, not withstanding the history that says otherwise.”
Anne Milgram: There’s no oversight is basically what they’re saying, is that you don’t get to oversee the actions of the executive branch, which is completely contrary to a document known as the United States constitution.
Preet Bharara: We talk about the concept of hypocrisy all the time. Lots of people have also been pointing out in different contexts. How rich it is that this administration is saying, “Well, we don’t have to comply with this request, because even though the statute doesn’t require a rationale to be given, the fact that you have given us a bogus rationale that we think is pretextual is a basis for refusing altogether, so go to hell.”
Preet Bharara: In other contexts, this administration is taking the position that pretext doesn’t matter at all, and we’ve talked about the census question and developing scandal about how the reason proffered by the administration as to why they wanted to add is citizenship question to the census about policing voting Rights is actually full on a pretext, because we have information from a Republican operative, who is now deceased, saying that the reason they wanted to do this question was to suppress participation in the census that would absolutely help republicans in a partisan way. This is pretext issue. It cuts both ways.
Anne Milgram: Do you call it hypocrisy when it’s in the legal context?
Preet Bharara: I call it that or I call it a woof and quack? No, it’s the opposite of woof and quack. Woof quack means there’s nothing there.
Anne Milgram: Right. Woof and quack means a lot of nonsense. If your child is arguing with you and they’re making up all these, “I don’t want to go to sleep. I need water, and I need to go to the bathroom.” That’s a lot of woof and quack, hypothetically.
Preet Bharara: You’re not implicating any particular child.
Anne Milgram: I’m not implicating anyone in that.
Preet Bharara: Right. We covered a lot of ground, including your speeding ticket.
Anne Milgram: Yeah, thanks.
Preet Bharara: Which was my favorite story of the morning.
Anne Milgram: Didn’t see that one coming.
Preet Bharara: Send us your questions, folks. We’ll do our best to answer them.
Anne Milgram: Take care. See you soon.
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 Aaron Dalton, and the CAFE team is Carla Pierini, Julia Doyle, Calvin Lord, Vinay Basti and Geoff Isenman. Our music is by Andrew Dost. Thank you for being a part of the cafe insider or community.