CAFE Insider Transcript 07/22: Mueller Time, At Last

CAFE Insider Transcript 07/22: Mueller Time, At Last

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Preet Bharara:             From Cafe, welcome to “Cafe Insider,” I’m Preet Bharara.

Anne Milgram:             And I’m Anne Milgram.

Preet Bharara:             Hi Ann. How are you? It’s a little cooler.

Anne Milgram:             Yes, thankfully.

Preet Bharara:             It was like 135 degrees I think.

Anne Milgram:             Yeah, it was hot. It was ice cream weather.

Preet Bharara:             We’ve gotten to that point in the show, we now talk about the weather at the beginning.

Anne Milgram:             It’s just like my parents.

Preet Bharara:             Is that what we’ve come to? Oh, is it hot enough for you?

Anne Milgram:             You know what, I almost bought the NOAA app, the official government weather app. I was close.

Preet Bharara:             [inaudible 00:00:26]

Anne Milgram:             Well, the sort of version that shows you where the lighting is and the really fancy version, yeah.

Preet Bharara:             So you had to go with the look out the window.

Anne Milgram:             Yeah.

Preet Bharara:             It’s raining.

Anne Milgram:             I have like three other weather sources on my phone.

Preet Bharara:             Do you know I carry an umbrella with me at all times.

Anne Milgram:             So does my husband, I don’t. That’s an interesting question.

Preet Bharara:             I don’t know what that says.

Anne Milgram:             It says you’re prepared.

Preet Bharara:             I’m overly cautious. I’m prepared.

Anne Milgram:             You’re prepared.

Preet Bharara:             Speaking of prepared, the worst segue in the history of world. Speaking of preparation-

Anne Milgram:             He’s going to be prepared.

Preet Bharara:             So there are always a lot of things to talk about. Mostly we’ll talk today about, guess what’s happening this week?

Anne Milgram:             Mueller time.

Preet Bharara:             The long awaited, Mueller time, right? Robert Mueller testifying this Wednesday at 8:30 in the morning, postponed from last week. Three hours or so with the House Judiciary Committee, short break, he’ll probably eat a protein bar and come back. Come back to the desk to be interrogated by the House Intel Committee chaired by Adam Schiff. You and I are not only are doing this podcast and talking about it, but we’ll be doing a special episode of “Stay Tuned” and if people like to see us, both of us will be spending some amount of time on CNN commenting as well.

Anne Milgram:             That’s right.

Preet Bharara:             So how do you want to start with, with Bob Mueller, is this going to be a big deal or is it not?

Anne Milgram:             There’s so much we can talk about and I definitely want us to get to some of the questions that we think that Mueller should get asked. But let’s frame this for a minute, just high level, which is that Mueller doesn’t want to testify.

Preet Bharara:             No.

Anne Milgram:             And to be fair to him it’s going to be painful. It’s a little bit like a root canal where you just have to sit through it and sort of push through the pain. The Democrats are clearly, from statements that were made by Democrats from Congress yesterday on the Sunday shows, the Democrats definitely are going to essentially try to get Mueller to narrate the key parts of his report related to obstruction. I think Adam Schiff said they want to bring to life the key findings in his report. The Republicans, I think are going to focus a lot on the exoneration part of the Russian conspiracy. And I think they may also, there’s an interesting question of will they try to discredit Mueller with the FBI agents engaging in an affair and having inappropriate text messages, on the number of Democrats on his team. I think it’s going to be at best tense and at worst, I don’t even know what the worst is, but it’s going to be really political and I think it’s worth framing upfront that-

Preet Bharara:             Train wreck, is that the metaphor?

Anne Milgram:             It might be, Mueller’s not going to be political, but everyone else in that room is going to be.

Preet Bharara:             Yeah, before we get to the questions and I have a lot of thoughts on … Everyone with a word processor is suggesting questions to ask and I have my own thoughts and I know you do. Let’s talk about the structure of it. We’ve talked many times about how little light is generated by congressional hearings. This might be the same and people may forget that one of the reasons we’re told that the hearing was adjourned from last week to this week was house members in the judiciary committee were upset that given the time constraints, not everyone would be able to get to ask their questions, which is interesting. I’ve actually had some conversations with members of Congress over the last few weeks and going back further, I have always thought that it is a mistake for the order of questions to be done in order of seniority.

Preet Bharara:             So sometimes the best question asker is the ones who were most energetic, the ones who were most pointed, the ones who are most on the ball, either don’t get a chance to ask questions or they come so late in the progress that sort of the narrative is already set forth. From all accounts that I see, they’re not changing the normal right method. So it’s five minutes per member. They keep claiming that they’re going to try to coordinate. The member of Congress told me that they’re supposed to be coordinating who’s not on that committee. But just becomes very difficult because each congressperson has his or her own agenda-

Anne Milgram:             And constituency.

Preet Bharara:             And constituency and expertise. And sometimes they’re not all sitting there for the whole time, they have other hearings that are going on. You and I both staffed senators. And maybe they won’t show up for half an hour because they’re not gonna be asking questions for a while, they will not have seen the line of questioning so they can’t pick up. So it’s a very difficult relay race in that, in that regard. So that’s on the side of Congress. On the side of Mueller, I’ve seen him testify a number of times, he is as straightforward as they come. He’s one of the few people who doesn’t filibuster his answers. Contrary to what I said a minute ago, compared to other witnesses you can actually get some stuff out in five minutes because I have not typically seen Robert Mueller evade a question by going on and on making a speech. He will sometimes answer questions, yes or no. And then sometimes I’ve seen members not have followup questions to ask and sometimes even the rounds end early.

Anne Milgram:             Wow. So what’s interesting is you know when you prep a witness to testify at most often a trial, and I’ve prepped witnesses as well to testify at hearings, you do give that exact advice, which is to answer the question you’re asked, don’t go on and on. If you can say yes or no, say yes or no, and don’t filibuster, right? Don’t-

Preet Bharara:             Sometimes you might give a congressional hearing witness the advice to go on and on, knowing that there’s troubling parts of the testimony, so you can get on to the next member. And the other reason, by the way, that it’s difficult to get any momentum going in a line of questioning, just to remind folks, is that you have a Democrat and maybe they’re getting somewhere. The baton doesn’t then pass to the next Democrat who can continue the same line of questioning in the same vein, it passes to the other side. So the flow is interrupted, not just by the five minutes and the changing of the question asker on one side is because it’s back and forth, it’s a ping pong match.

Anne Milgram:             One of the problems with the hearings and I do think it’s a problem and having seen a lot of hearings, they talk about it as the sausage being made of legislation and there are a lot of times they’re fact finding. So Congress will bring in experts on something. This is an oversight hearing based on the report. And so it’s going to be pretty strongly directed toward that. But one of the issues is that it really is a question of, if you and I were thinking about how do you do this the right way, you would never set it up like this. You would never have it go in order of seniority. And so there are countless ways in which sort of the way the process is structured will ultimately impact the substance of the day.

Anne Milgram:             And so I think a lot of people will come out of it being like, “Eh.” Or if it gets testy, which it could, I mean look, Mueller’s not gonna roll. I think you’re right, he’s going to be right straight down the middle and he’ll say yes or no. But if someone makes an allegation or says something that he doesn’t agree with, he’ll say, “No, I don’t agree with that.” He’s not going to kowtow to Congress in any way.

Preet Bharara:             You want to talk about some of the questions?

Anne Milgram:             Yup.

Preet Bharara:             So the way I’ve thought about it is three categories of questions I think and then the fourth broader category. Those categories of questions are one, as you were saying earlier, “Special Counsel Mueller, could you read from page 361, the second paragraph?” In other words, get him to narrate by simply sitting in front of a camera and a microphone and reading pieces of the testimony that most people in America have not read because they haven’t read the report, so that’s category one.

Anne Milgram:             And here’s an example of that would be zeroing in on say the Don McGahn or the President tried to get Don McGahn to interfere with the investigation and then to have McGahn say that they didn’t have that conversation. I’m shorthanding that a lot, but you could go through each of the three elements of obstruction, the way that the report is set out. 1On this page, can you please read me this? On this page can you read me this? On this page can you read me that? Which is essentially Mueller putting forth sufficient evidence that a crime was committed. And so without Mueller ever saying a crime was committed, but getting him to read those specific parts could be meaningful.

Preet Bharara:             I think some people are placing too much hope and that being blockbuster, I think it’s important. I think those are the kinds of things that you’ll see on YouTube and people will see in the nightly news even if they missed the hearing because a lot of people have what are called jobs, so they’re not always tuning in and those things will make the highlights. And to hear it in the words of the special counsel himself. So I think it’s important. I’m not sure what it is as huge as people say it’s going to be. The second category and my favorite category I think, are the questions that are crisp and short that go to undermining the misstatements made by the President and others on behalf of himself with respect to the report. So other people have said this too, but some version of the following questions.

Preet Bharara:             “Mr. Mueller, when the President has stated that your investigation found no obstruction, was that a correct statement? When the President has stated you found no collusion, is that a correct statement?” And over and over and over again. And that I think is interesting because it’s really hard to get around that question and Bob Mueller is the type to say flatly, “No, that wasn’t correct.” And to maybe state what in fact is in the report and puts Bob Mueller in a position diametrically opposite of the President. The other thing I’ll just say about I think the whole structure of this is we’ve often said at least I’ve often said, that the President of the United States does things not necessarily that are unprecedented but it’s unprecedented because he takes it to an extreme and he has the loudest microphone, megaphone on Earth. On Wednesday, for a brief period of time for a few hours, Robert Mueller will have a megaphone equal in volume briefly, to the President of the United States. So when he says those things and contradicts the President, that’s powerful.

Anne Milgram:             Yeah, I agree. And let me agree with something else, which is that I’ve read now in a number of different publications, all their perspective questions for Mueller, all of which are like 80 pages long per question, it’s absurd. And to your point, I think the exact same way that you do, which is short questions, know where you’re going, what you’re looking to prove or get out of your five minutes with Mueller. And then break it down into really short questions that allow you both to build momentum but also get the information that you need to be able to make the arguments you want to make. So here’s some other examples. I think nobody is closer to Russia interfering in the election than Robert Mueller. I don’t expect we’re going to hear a lot about this during the hearing, but there’s a pretty powerful line of questioning that you can do on Russian involvement in the election, which is could be as brief as, did Russia interfere with the election? Did you find that Russia committed crimes? Did you find that there were more than a hundred communications with the campaign?

Anne Milgram:             Now, the other question which people have sort of said in the media, which I think would be really interesting, but I don’t know that Mueller answers it, is how do we deal with this for 2020? And again, I’m not sure he answers it, but I think it’s really important. Other areas where I think it could be really interesting to question Mueller, remember, and we’ve talked about this before, but Mueller gives Barr a heads up three weeks in advance that he’s not going to draw a conclusion on obstruction of justice. Barr then does that non-summary summary, he gives the press conference where he says two things. One is that Mueller never said that he was relying on the office of legal counsel opinion. I think Mueller could be very clearly asked, did you rely on it? I think the answer will be yes.

Preet Bharara:             Can we pause it for a second?

Anne Milgram:             Yeah.

Preet Bharara:             So if you ask me that question, modeling Robert Mueller, I might not want to give you the ultimate answer that you as a Democrat want, which is, but for the OLC opinion, the president is chargeable. It seems like he really, really doesn’t want to say that he’s bent over backwards in print. He bent over backwards in his press conference and he would say, “Well congressman, obviously we took a look at all the law and we’re bound by Supreme Court precedent. We’re bound by other court precedents and I’ve taken the position and I can refer to the report. We are also bound by the Office of Legal Counsel’s to opinions with respect to the issue of whether or not a sitting president can be indicted and the answer to that question is he cannot be. But I have not answered that question with that response.”

Anne Milgram:             Right, I think it depends on how they, they ask the first question of Mueller. But I do think it’s already in the report and so the thing to do is to pull out the language of the report and to basically get Mueller to commit orally to that.

Preet Bharara:             I’ll I’m saying it’s going to be the thing that everybody wants-

Anne Milgram:             Yes, it’s going to be less kaboom then we think.

Preet Bharara:             … the million dollar point, which I think we all agree is true in the mind of Robert Mueller. But because he’s bent over backwards to be fair, in his mind, given his analysis that it would be improper for him to say, given his position, former position now, is that the President is chargeable-

Anne Milgram:             He’s not going to say that, right, I agree.

Preet Bharara:             He’s not. So any question, no matter what verb you use, did you rely on this on the OLC opinion? Or was the OLC opinion the basis for determining X, Y, and Z? I think he gives some answer along the lines that I suggested. He’s like, “Look, that’s part of the body of law and regulation. Just like the special counsel regulations bind us and we took that into consideration.” And maybe someone will be smart enough to figure out a way for Bob Mueller to say the thing that he doesn’t want to say. But I think if there’s something that Bob Mueller doesn’t want to say, he ain’t going to say it.

Anne Milgram:             I think that you and I have spent a lot of time talking about this inconsistency, I don’t even know if we should call it an inconsistency, but there is a challenge here, which is that Mueller essentially has said on the Russia conspiracy question, there’s no crime. There’s a variety of reasons why, but there’s no crime. In this other space on obstruction, he said, “I cannot exonerate the President and here’s all the evidence I have, but I can’t draw a conclusion on the crime because the OLC opinion.” And there is space between those inconsistencies is to really dig at what was happening there and to sort of push him. But let’s come back to that in a second, just staying on this other point. One of the questions I’ve always had is Barr comes out very strong after Mueller’s report comes out saying, “I’m stunned that Mueller did this. I don’t agree with it. He should have made a call on whether or not the President obstructed justice.”

Anne Milgram:             And I think it would be very interesting to hear from Mueller, “Look, the attorney general is your boss, correct? You’ve met with the attorney general before you provided your report to the attorney general, did you tell the attorney general that you weren’t going to draw a conclusion? Yes. And did the attorney general ever order you to draw a conclusion? No.” Because I think Barr has sort of wanted to have it both ways on this and there’s a lot that could be done very simply and quickly with Mueller to basically prove out that Barr wasn’t objecting, if anything Barr likely saw the opportunity to do what he did with the non-summary summary.

Preet Bharara:             So on this issue of whether there’s disagreement with Barr, I’d like to know the answer to that. I’m just wondering, given how much time people have, how productive that will be. I would like to know and I think there was definitely a misleading aspect to what Bill Barr said in the summary. We know from the back and forth of letters to remind folks that Bob Mueller’s office wanted to put out their own prepared summaries. They did the report, they were in a better position to put out summaries and they believed they didn’t have to be redacted. And he was very strong about it. I’d like all that to happen. I just don’t know how much they’ll get and given how limited the time is, if that’s worth it.

Preet Bharara:             And I’m going to ask you this question, so I was thinking of other broad questions you could ask, just simple questions, but what you think Mueller will say. Because of the kind of question that members of Congress like to ask, and it could be something like, “What most troubles you about the President’s conduct, what part of the president’s conduct is most troubling?” To put it in a different way. You think he’ll answer-

Anne Milgram:             I don’t think he’ll answer. I think it’s too far outside of … he sees himself as having done a criminal investigation.

Preet Bharara:             Yeah, it’s not his role.

Anne Milgram:             Exactly.

Preet Bharara:             If we were to play a drinking game-

Anne Milgram:             Oh no.

Preet Bharara:             … is there a phrase that will be uttered more often than, “Congressman, I direct you to the report?”

Anne Milgram:             No.

Preet Bharara:             “Let me refer you to the Mueller report.”

Anne Milgram:             And again, a lot of congressman will say, well, can you please read me those lines directing your attention to page 75, let me direct you to the report. I think he also will say, that was not my question to answer or that was not my … I’m not using language he’ll use, but “Congressman ,that not my role. My obligation was to do a criminal investigation and to issue a report.” The other areas that I think could potentially be interesting, I’d love to get your thoughts on this, there are a number of ways in which Mueller said in the report that he was unable to get information. The President would not submit to questioning, Donald Trump Jr. did not submit to questioning. There were missing messages between Eric Prince and Steve Bannon related to that meeting in the Seychelles. There are encrypted messages.

Anne Milgram:             I think it could be pretty interesting to go through … all criminal investigations have limits and there are, it’s very clear that Muller didn’t get all the information that he wanted to get, which again is not uncommon. But there’s an interesting line of questioning I think of, what did you get? What didn’t you get?

Preet Bharara:             Yeah, no, absolutely. And you want to establish, partly in connection with obstruction, that they couldn’t complete the investigation fully. It also goes to a thing I said earlier contradicting through a simple question, the kinds of representations made by the President and his allies, who have said there was full and complete cooperation. There wasn’t with respect to a lot of aspects of this. There’s other things I think you can ask questions about the investigation itself and who’s making decisions in the investigation. And these may be just sort of interesting to me, but I have been confused, as have a lot of people for a very long time about Rod Rosenstein’s role, the former deputy attorney general.

Preet Bharara:             Who, by all accounts was simultaneously decision maker and how this unfolded at the end and also, essentially a witness to the obstruction. He was there and advising the President both with respect to the propriety of firing Jim Comey and what to say about it and all sorts of other things. And I really don’t understand how he could be both a witness and also an overseer of this project. So I’d like to hear that question asked too.

Anne Milgram:             Yeah, there’s been reporting that Mueller and Rosenstein had a conversation about it. It would be very interesting to sort of hear that. I don’t think there’s been a lot of reporting on people who are going to ask Mueller, at what point he decided that he couldn’t come to a conclusion on the obstruction of justice piece. Do you think he’s going to answer that? I would be surprised to have him answer, “Well, it was month three or it was day one.” I don’t see that.

Preet Bharara:             It’s one of my favorite questions. I’ve been wondering that as well. In part, because I think the public deserves to understand what this was all about. And I’m a big fan of Robert Mueller and I think he calls it straight and if he made a conclusion, I tend to defer to him. But I’d like to hear his answers in the hearing, but I tend to defer to him. But if it was the case that they decided right out of the box, we’re never going to make a conclusion because we can’t indict a sitting president. Then there’s legitimate policy questions you can ask about future special council assignments that there was a lot of buildup and there was a lot of expectation. And that’s maybe not the fault of the special counsel, but sometimes when you’re the prosecutor of an office, arguably there’s some obligation to lower expectations. And I think you could ask the question, if the decision was made right away based on the OLC opinion that there was never ever going to be a charge against the President and you knew that for two years. And people are sounding off in the media and the public and experts and former prosecutors saying that there’s a chance that the President’s going to be hauled off in handcuffs, even though people like you and I said there was never going to happen.

Preet Bharara:             Same if there’s a chance that the president can be hauled off in handcuffs, even though people like you and I said that was never going to happen. Nobody was listening to us. Maybe that should have been made more clear. I think that’s a question going forward and so I’d like to know the answer to that question.

Anne Milgram:             Yeah, I would too, but my sense is Mueller will say, look, my task was to complete a criminal investigation. The first question was, was a crime committed before I even read to the question of could a president be indicted? The first question was, was there anything to indict based on in that investigation took time? I am curious. I don’t think the answer will be that satisfactory to the public, but I am also curious about the fact that Mueller had conversations with the president’s lawyers about the president, both submitting written answers to questions related to the Russia conspiracy and sitting for an interview on obstruction.

Anne Milgram:             There were answers given on the Russia conspiracy piece, which it’s pretty clear there were many instances in which the president said over 30 I think where the president said he didn’t remember or didn’t recall, and that Mueller’s team didn’t find those to be satisfactory or really sufficient in many ways. But it’s also clear that at some point they make this decision not to compel the president, which I believe the president could have been compelled to sit for an interview with Mueller as part of the grand jury process. And so do you think he’s going to answer anything related to that?

Preet Bharara:             I feel like he addressed it in part in the report that it would take a substantial amount of time. It seems to be time was of the essence. And another question related to this is why did you end the investigation and conclude at the time you did, you could have continued? I think he knows an answer on that.

Anne Milgram:             Although can I say something on that? There’s been a lot of people saying, well the Stone trial, it hasn’t gone yet. There were pieces moving with Manafort with Cohen, there are still people cooperating. But the reality is that the point at which Mueller stopped the investigation, those investigations were largely concluded. So with Stone, yes they seized a lot of computer and other evidence that could have potentially been helpful. But I think they would have known that fairly quickly. So the fact there’s going to be a trial I don’t think matters that much.

Preet Bharara:             If I look at it this way. I’m not saying that it was unreasonable to conclude the investigation we did. I think it also would’ve been reasonable and different special councils would have reasonably determined they wanted to keep the investigations and keep control of the ongoing prosecution and trials of various matters to themselves. So it seems to me that among reasonable options of ending or continuing, Bob Mueller made a decision to end. My guess is because you kind of want it to be done with it and want it to be seen to be done with it way in advance of an election. Knowing there was a lot of public criticism of how long things were taking, even though you and I know that they take a period of time and he just wanted to sort of affirm these other cases out, the 12 or 14 of them and be done with it.

Anne Milgram:             It is an interesting question of like, how did you know when you were done? What was your goal post? What was the goal post you had to cross?

Preet Bharara:             And I think you should answer that question. I mean some questions about the methodology of the investigation, that’s not grand jury material. That’s not really deliberative process stuff. You’re asking a prosecutor in a way that you and I might explain, you’re asking a prosecutor in the wake of a lot of confusion, a lot of polarization for a reasonable answers. Why did you end it then? And part of what I think this hearing should address and what we’ll hopefully dispel is a lot of myths about why he did what he did and why he didn’t get into the third category in a second.

Preet Bharara:             But I want to pause on this one thing. The likelihood that Mueller will answer simple questions that are phrased in a straightforward manner are actually devastating to the president. Right, so one way we phrased it earlier was when the president says that the report exonerated him with respect to obstruction, is that a correct statement? Jim Comey and others have suggested another simple question and it’s this. Did you find substantial evidence that the president had committed obstruction of justice crimes? That’s a good question.

Anne Milgram:             It’s a great question.

Preet Bharara:             Because the answer to that based on the report is yes.

Anne Milgram:             Right. I agree.

Preet Bharara:             Is Bob Mueller going to say yes?

Anne Milgram:             If Bob Mueller doesn’t say yes, what a good congressman who’s well prepared for the hearing would do, would be to pick one example like we did with Don McGahn, but you could use the K.T. McFarland example. You could use Corey Lewandowski. There are a couple of different instances that if you go through the obstruction part of the report there are. Mueller has done the analysis of the three prongs that are necessary elements of the crime of obstruction of justice. And if Mueller does not answer that question, and by the way I thought Comey was very wise in saying substantial evidence and not sufficient evidence, which is more of a term of legal art. So substantial evidence meaning a lot of evidence. Like did you find that there was evidence of these crimes, whether or not you made the ultimate decision that it was beyond a reasonable doubt or the probable cause standard. So he’s not-

Preet Bharara:             Yeah, it’s not binary.

Anne Milgram:             Exactly.

Preet Bharara:             That the fact that there’s no charge doesn’t mean that there was not substantial evidence.

Anne Milgram:             And the great thing about-

Preet Bharara:             You could have a lot of evidence.

Anne Milgram:             Right. And the great thing about substantial is that it’s not a legal term. So you’re not making Mueller say as you and I said before, I don’t think Mueller will ultimately say, “Yes, if I were able to charge I would have charged.” I think Mueller will say, “Look, I did not make that decision because I wasn’t allowed.” Right. And so what I would do is if you get to the point where Mueller does not say yes, I found substantial evidence, I would literally go line by line as to the three elements of the crime in one or two of the obstruction counts. Right. What would be obstruction counts.

Preet Bharara:             You have him recite something and he would say, “Mr. Mueller is that evidence of obstruction of justice crimes?”

Anne Milgram:             Yes.

Preet Bharara:             And there you’re not even saying substantial, you’re just doing one by one. And of course each of those instances, whether there’s a defense to them or whether they overall.

Anne Milgram:             So out of this sort of 10 obstruction instances that were investigated, there’s at least four or five that I think there’s a considerable amount of evidence for them. There’s an argument that they should to five congressman one takes one, another takes another and they go through this methodically because at the end of the day there’s also one place in the report on one of the obstruction incidents where they say, we couldn’t get evidence of this prong. And so when there is no evidence, they make that call that there is no evidence. And so to the extent that they don’t do that in the other sections suggests that there was evidence. And so I don’t think Mueller can squirm out of this if you ask the questions in the way you just did. Nor do I think he wants to necessarily. That made it seem like, I think Mueller’s trying to squirm out of it. I think-

Preet Bharara:             No, but I think what he’s trying to avoid is being used, the [inaudible 00:24:14] like he was using as a pawn or a pinyata, right. That to the extent people are trying to drive a wedge between Bill Barr and Bob Mueller or trying to get Bob Mueller to say things that Democrats can use in commercials as opposed to in a legitimate inquiry or impeachment proceeding. Bob Mueller wants no part of that.

Anne Milgram:             Completely.

Preet Bharara:             He doesn’t want to have his phrasiology turned against the president in any way other than what the legitimate investigation found. So to the extent they can stay away from provocative verbs.

Anne Milgram:             The better they will do. I agree.

Preet Bharara:             Right? I mean, isn’t it true that Bill Barr lied about through your report? Terrible question.

Anne Milgram:             Terrible question.

Preet Bharara:             Someone will ask it.

Anne Milgram:             Someone is going to ask a version of the question is Bill Barr the devil?

Preet Bharara:             Right.

Anne Milgram:             And he’s not going to answer.

Preet Bharara:             He’s not. Yes. So I think people need to be very careful in that regard. The final category-

Anne Milgram:             Can I just say. I keep thinking about this as like it’s a ping-pong match and Robert Mueller is the ball and you never want to be the ball in a ping-pong match.

Preet Bharara:             You don’t.

Anne Milgram:             You don’t. Or the pinyata.

Preet Bharara:             Do you want to be the net? What do you want to be? I just want to be one the players.

Anne Milgram:             Yeah, or the ref.

Preet Bharara:             Are there refs in ping-pong. I guess there are.

Anne Milgram:             Maybe. I don’t know.

Preet Bharara:             I used to be pretty good at table tennis.

Anne Milgram:             We’ve gone to the extent of my table tennis knowledge.

Preet Bharara:             So then the third category, and obviously we’ve talked about many categories, but in my head that I think is really important and that I’m hoping and expecting Bob Mueller to get tough questions on which may surprise some people are the criticisms from the Republicans and I think that’s really important. Why is it that you hired so many people who gave contributions to Democrats? Why is it that you think that the investigation could be viewed as fair when Peter Strzok, the FBI agent was involved and had did this relationship and it was any texts about an insurance policy because you know what? People deserve answers to that and what they’ve gotten is again, punditry from a lot of other folks and third party defenses.

Preet Bharara:             I think it’s important to hear Bob Mueller take those questions and look members of Congress in the eye and explain why he had a good team. Explain why they did things with integrity, explain why he acted the way he did and removed Peter Strzok and if he thought that was timely enough and why the rest of what was done in the investigation remains valid and legitimate and honorable and say it forthrightly. I think it’s probably been a point of pain for some of the members of the prosecution team on in the Special Counsel’s office that you have all this unanswered invective by the people who are being investigated, the president and others without the principal, Bob Mueller answering them. And the other aspect of all this is, you and I know Bob Mueller. I know him personally for a long time, our friend Lisa Monaco, who sometimes on the State Tune show was his chief of staff. People have successfully caused Bob Mueller to have horns. They think he’s the devil. Right?

Anne Milgram:             Yeah.

Preet Bharara:             And sometimes it’s the case that you put a person who we know to be reasonable and full of integrity in front of cameras and people can see for themselves. This is not a guy with horns. This is not a guy with a vendetta. This is not a guy with a prejudgment about where the evidence would lead. This is a guy who actually bent over backwards to be fair to the president and fair to the office of the presidency. And one of the most important things that can happen from my perspective is that Bob Mueller just gets out there is just himself and a lot of people who have doubts about how he went about this should have those doubts lifted.

Anne Milgram:             I agree completely and I think he will get asked those questions, the president was tweeting earlier about conflicted Robert Mueller. He’s always said Mueller has a conflict. I personally would like Mueller to go out and talk about what the conflict was, how that was dealt with. I don’t think there was a conflict, but I think when you don’t answer these questions to your point, it does look like there’s something there. What it really is Mueller being a lawyer who’s not divulging client sensitive information probably, but there’s an argument and I’m with you on this that he should go in and answer all that. I do think also that there’s a distinction in my mind and I think he will be asked about all these things and I feel the same way you do, which is like he should just embrace it and answer honestly because he is one of the most reasonable and fair people that I think either of us know or have worked with and even where I haven’t agreed with him, I have very much valued his integrity and his process and I think that’s critically important.

Anne Milgram:             The one piece I will tell you that still makes me cringe a little is not the angry Democrats stuff and the campaign contributions and I think Mueller will basically say, “Look, I’ve worked with these people, I hired the best lawyers I could and that’s what’s most important to me is everybody has a right to contribute money or be involved in campaigns, but they can’t bring that to work period. And I knew and had worked with these folks and didn’t see any issues with them.” But the Lisa Page, Peter Strzok piece I think is when I saw that news, I had that feeling in my stomach like poor Mueller. Right. And the reason why is that I’m sure he didn’t know about it and that’s one of the questions he should be asked is when did you find out about it, what was your reaction to that? And it’s pretty clear that the minute he found out about it, he terminated them from the Special Counsel team. But it’s still painful because I’m sure he didn’t know and I’m sure he walked right into it. And those are the kinds of-

Preet Bharara:             He should explain all that.

Anne Milgram:             Yeah.

Preet Bharara:             Look. We’ve talked about this before and for people who don’t follow deeply criminal law, they may not appreciate. There are cases that happen all the time. Guy kill somebody and there’s a lot of evidence that he committed the homicide and there are six agents working the case and four prosecutors working the case and one agent does something bad. One agent writes a bad report or one agent, it turns out had a prior beef with defendant or some other such thing along the way and that’s bad. And you deal with that in a proper way and there can be discipline for that agent. That does not mean that the killer goes free.

Preet Bharara:             That does not mean that all the other evidence that’s collected that’s subjectively provable and supportable and corroborated isn’t viable evidence. I mean, that’s an argument of defense source make all the time. Problems happen. Imperfections are sometimes arising in these cases, but the principle is not someone behaves in a way that’s less than what the badge or the oath requires. It doesn’t mean that the person gets away.

Anne Milgram:             Right. And it’s a smokescreen to try to basically make it about the bad behavior and not about the ultimate conduct. And it’s trying to sort of avoid focusing on the ultimate conduct. One other question for you is that I’ve seen also that a lot of the sort of Republican commentators, and they’re very focused and you and I have talked at length about this before, the legal standard that Mueller used and what they’ve tried to do is essentially flip it and say since when is the standard that you have to exonerate yourself, right. That’s not the standard of proof.

Anne Milgram:             I expect and hope that Mueller also takes that head on because I think again, leaving some of these things out there without addressing them sort of gives them air. Once you have five hours of hearings, if you don’t address it and he’ll be asked about them, I’m sure all of them, but I hope he takes the opportunity to really say, “Look, here’s what we did, here’s why we did it.” And of course the legal standard is not that you have to exonerate yourself, but here’s why I said we cannot exonerate the president.

Preet Bharara:             Other bad questions I think that will be asked and probably not worth being asked. Any questions that has the word impeachment in it. That should not be asked.

Anne Milgram:             Yeah. Agreed.

Preet Bharara:             Do you think that the conduct set forth in volumes one and or volume two of your report, Mr. Mueller, do they constitute impeachable offenses? Do they constitute high crimes and misdemeanors? Dumb question.

Anne Milgram:             Yeah.

Preet Bharara:             Please don’t ask it. He’s not Gunna.

Anne Milgram:             Do you think somebody is going to ask that impeachment?

Preet Bharara:             I don’t know.

Anne Milgram:             I would bet someone says the word impeachment.

Preet Bharara:             Yes. Someone’s going to. Yeah.

Anne Milgram:             That should be maybe the center on the bingo board that maybe is the center.

Preet Bharara:             I think so. Should we? I don’t think we’ve not made too many predictions. So when we come back next week we will have had pretty well.

Anne Milgram:             We’ve been-

Preet Bharara:             Because we’re not making a lot of-

Anne Milgram:             I’d make a bingo board though about the questions he’s going to, the phrases that will be used.

Preet Bharara:             Okay, go ahead.

Anne Milgram:             I think most of all on Mueller and I don’t know how you feel, but it’s like when you see a movie that you’re really excited about seeing, you don’t want to get too excited because you might be disappointed. That’s a little how I’m very much looking forward to hearing Mueller testify. But I’m trying to keep my expectations low.

Preet Bharara:             Well, should have expectations in check. This might be like Toy Story 4.

Anne Milgram:             How is it?

Preet Bharara:             So I love Toy Story 3.

Anne Milgram:             Yeah.

Preet Bharara:             So that was phenomenal and I took my son to see Toy Story 4 and it was good. It was good, but not amazing.

Anne Milgram:             Yeah. The key to life is low expectations.

Preet Bharara:             Yeah, you know what people should do? They should stay tuned.

Anne Milgram:             Yes.

Preet Bharara:             Get it.

Anne Milgram:             Yes.

Preet Bharara:             All right. Oh, something else happened last week of the Southern District of New York advised Judge Pauley, who was overseeing various investigations. That the search warrant material related to the Michael Cohen case largely could revealed because the Southern District had essentially concluded its investigation with respect to the Trump recognition in such a way that the release of that information, the judge concluded would not harm ongoing investigations. Which appears to mean to folks that no one else is going to be charged in connection with the campaign finance violation to which Michael Cohen pled guilty.

Anne Milgram:             Right.

Preet Bharara:             That causes people to wonder some things. What do you make of it?

Anne Milgram:             Yeah, there’s been a lot of speculation in the media of does this mean that the Attorney General Bill Barr has put pressure on the Southern District of New York to drop charges against Trump allies and I think a couple of points are worth making. One is that in my view, Barr has through a number of his actions put his integrity in question and so part of why I think people are questioning his credibility and are quick to question his credibility is that he has done a number of things in the past few months that are very problematic and so I would just sort of say, I think some of the speculation comes from that. I worry, and I would love to get your take on this. I worry there’s a value I think in people saying, look, we’re attuned to whether or not we just did this with Alex Acosta where we’re watching very closely whether prosecutors are not pursuing cases because of powerful, well-connected people because of loyalties to them.

Anne Milgram:             I also think that there are a couple of pieces that I think are missing from the conversation. One is that there was a lot of investigation that was done before Michael Cohen was charged and there was a considerable amount of estimation. So yes, there was additional investigation that happened after it, but I think people are very much viewing it as there were other people who were definitely going to be charged. I don’t necessarily read the evidence that way, though I think it’s a real question of, I personally think the president was an unindicted co-conspirator and in the Michael Cohen and Dikeman, I think the government said as much in their paperwork, but we won’t know whether or not the president would be charged by the Southern District until he’s no longer in office because the same DOJ rules currently apply. So putting the president aside, I think the real question is other members of the Trump organization and we knew that AMI, American Media, David Pecker, the president of the National Enquirer, they’d reached deals.

Anne Milgram:             So there aren’t that many people who are still out there. The one person I think is very interesting is Hope Hicks, and I don’t know what you make of that, but it appeared to me from the Mueller report. My sense was that she may have taken the Fifth Amendment, essentially refuse to answer questions because the answers might have incriminated herself, but there’s the impression based on the search warrants that there’s information that Hope Hicks was in these conversations with president Trump and with Michael Cohen related to the payments. And obviously Michael Cohen is a cooperator or has, even though not an official cooperator, he has provided information so the government likely has Michael Cohen’s version of what Hope Hicks said, what the president said and then it appears that she testified before Congress that she wasn’t aware of the sort of payments and if that’s true, there’s an argument that Hope Hicks can be prosecuted for lying to Congress.

Preet Bharara:             Well, she’s going to be brought back.

Anne Milgram:             Yes.

Preet Bharara:             Although at a leisurely pace it seems.

Anne Milgram:             Yes.

Preet Bharara:             Yes.

Anne Milgram:             What do you-

Preet Bharara:             I want to want to say a couple of things. One, and everyone knows this, I have an innate bias in favor of the Southern District. I ran the place for seven and a half years. I hired a lot of the people, if not all the people who were working on some of these cases. I hold the office-

Preet Bharara:             Well, if not all the people who are working on some of these cases, I hold the office in very high esteem. So other people can judge whether or not, I’m overly deferential to any decision they make. You know, I made mistakes when I was a US attorney. People make mistakes from time to time. People make judgment calls about the sufficiency of evidence. I talk a lot about this in my book and sometimes you go one way, sometimes you go on another. But I still believe that with respect to the question of whether or not Bill Barr overrode the will of the southern district, meaning the southern district thought we should pursue a particular case right now, a prosecution right now and Bill Barr said, “No.” And there was a dispute and Bill Barr made them go his way. I think the likelihood of that is just very low.

Preet Bharara:             I mean it never happened when I was there. We would have disagreements and there were on a couple of occasions there was a sufficient disagreement maybe three or four times between our office and main justice. Which means basically me representing my office and the Attorney General, whoever it was at the time where we gave serious consideration to doing something dramatic like withdrawing from the case. But at the end of the day we were able to come to a, this is a hard to talk about in the abstract, but come to a way forward in how we would proceed on something that we agreed with and that the attorney general agreed with. So I just find it hard to believe that he would just sort of over bare their will if they felt strongly about proceeding with the case.

Anne Milgram:             Isn’t’ it actually more likely. I’m not saying that there was politics involved, but if there ever, is politics involved, isn’t it more likely to be at the US attorney level, wouldn’t you think?

Preet Bharara:             I don’t know what you mean.

Anne Milgram:             Well, I mean Barr reaching in and you’ve given examples when you tussled with main justice and main justice sort of stepped in. But it’s really rare. I mean, it’s really rare that something goes to that level. More often than not, you would have made the decision as the sitting US attorney whether or not to go forward or not go forward without the interference of main justice.

Preet Bharara:             In the vast majority of cases, even the ones that are highly significant, you go forward. Now there is some question depending on who the potential targets are about the consultation requirement, that you have with the public integrity section down in Washington.

Anne Milgram:             Would you have a consultation requirement here?

Preet Bharara:             I think it depends a little bit more on who the [inaudible 00:38:11] and were and who the potential targets were. But on some of these matters, yeah, there would be a consultation, but I still think the decision is up to the US. Attorney and it’s very, very rare for the AG to get involved. But it’s also very rare for an AIG to do the kinds of things that this attorney general is doing. So I keep an open mind on that. But that’s essentially my thinking.

Preet Bharara:             Then finally, what does this mean for the President? We already know that the President can’t be indicted. Whether or not you like that policy or that interpretation and the OLC opinions or not. I don’t know that the closure of the investigation or the representation of the completion of the investigation, I don’t know if that means anything necessarily for Donald Trump once he leaves office. I still think it’s a big deal, and I would not necessarily expect the President to be charged after he leaves office based on the campaign finance violation for various reasons. But I don’t know that this representation of the completion of the investigation and the allowance of some of these materials would be made public says anything about the jeopardy the President faces.

Anne Milgram:             I agree with that. I agree with that. I think it’s more that the current investigation and people who would now be charged, it’s over and they’re willing to release the search warrant. And if someone later came when the President could be charged and decided to revisit it. But I actually do think it would be revisiting, they’re not going to keep the case open necessarily for two years.

Preet Bharara:             By the way, everything gets dismissed as not so significant and not moving the needle and whatever other phrase you want to use. The stuff that was released-

Anne Milgram:             Is significant. I think.

Preet Bharara:             … it’s in a different universe.

Anne Milgram:             Yeah, I agree.

Preet Bharara:             It’s a big deal. The President of the United States is on the record, not under oath and that’s significant legally, is on the record saying on more than one occasion I believe that, “I knew nothing about these hush payments. I knew nothing about it.”

Anne Milgram:             You’ll have to ask my lawyer.

Preet Bharara:             And now you have self worth, in a way that judge Paul he said he was releasing, because it was of national importance. You have the sitting President of the United States clearly having all sorts of conversations with Hope Hicks as you mentioned and with others in real time with respect to the hush payments. And so he lied to the public about that.

Anne Milgram:             And it’s worth our posting probably online the this sort of timeline from the search warrant, which we have it here. But it’s basically, you know Cohen’s on a call with Hope Hicks. The President joins the call. Then there’s calls with David Pecker, there’s calls with the head of content at AMI. And Cohen he’s in the center of all of this reaching out to coordinate this on behalf of the President. But it’s very clear that there was a half an hour or an hour where all these conversations are happening fast and furious, right after the Access Hollywood tapes come out. And it is incredibly damning to the President.

Preet Bharara:             Yeah.

Anne Milgram:             And Hope Hicks at the time was the communications director on the campaign, to be clear. That there was a direct line to the campaign that both the President and Hope Hicks have denied.

Preet Bharara:             It’s about the campaign. And there was public lying. Look as we’ve said before some people have taken the view, Ken Star among them, that direct lying to the public is potentially a basis for impeachment. So I think there’s still further things for the Congress to do about the release of those documents. So we should give an update, or at least talk about the latest in the Jeffrey Epstein case. You and I-

Anne Milgram:             Yes. We said that he would be detained.

Preet Bharara:             … We were correct that he would be detained.

Anne Milgram:             Yes.

Preet Bharara:             I think it was that close a question and in fact Jeffrey Epstein has been detained. He didn’t get to have his private prison, palatial home paid for guard situation. That did not fly-

Anne Milgram:             That’s right.

Preet Bharara:             … with the judge. And I think that’s all good and correct.

Anne Milgram:             Yeah. And the judge was very strong in saying there’s a presumption of detention for child sex trafficking. And the victims have expressed concern about him, about Epstein being released. And given the potential for dangerousness. And there’s some interesting things that came out related to Epstein having multiple calls every day with young women, and communications with young women. That made it very clear that the judge had a serious concern that Epstein is a danger to young women and is a predator. And so it appeared in the judge’s mind to be an easy call. And he even says that, “Because I’m making this decision on dangerousness, don’t bother coming back with other ways in which you think Jeffrey Epstein can be released.”

Preet Bharara:             Yeah, look, I think the likelihood Jeffrey Epstein ever sets foot on free land is very low. So as we talked about last week, Alex Acosta, labor secretary is out. There’s been an interesting nominee to replace him. But before we get to that, Wilbur Ross continues to be the Secretary of Commerce. Is that correct?

Anne Milgram:             He’s one of those cabinets members I was sort of hoping never to have to spend a lot of time and energy focus on. But yes, he’s still there.

Preet Bharara:             Right, well I still don’t know what the Commerce Department does actually, no offense to the Commerce Department. But did you see the recent report this morning?

Anne Milgram:             No.

Preet Bharara:             Apparently people have been saying without attribution, anonymous sources that he is having a tremendous amount of trouble not falling asleep at meetings. So it’s interesting-

Anne Milgram:             Is commerce boring.

Preet Bharara:             … the President describes some other people as sleepy, but he’s got a commerce secretary who can’t sort of stay awake. You ever fall asleep at a meeting?

Anne Milgram:             Well, no. But I guess if I did-

Preet Bharara:             It wouldn’t have been here.

Anne Milgram:             … would I even know. But I think I have been in meetings that were sleep worthy. Sort of a different way to answer it.

Preet Bharara:             You are such a lawyer. That is like [crosstalk 00:43:22] bullshit lawyer.

Anne Milgram:             That was a Bob Muller answer.

Preet Bharara:             Wait, can we just maybe if we print that out and next week I can read that and it could be my laughing challenge. “Have you ever fall asleep at a meeting, Miss Milgrim?”

Preet Bharara:             “I guess what I can say is I have been at meetings that were asleep worthy.”

Anne Milgram:             It’s somewhat reminded me of recently I was waiting for a meeting to start the Haida, which is the joint law enforcement group, Philadelphia, Southern New Jersey. And, and it was really boring because everybody wasn’t there. And I was sort of gonna be the first person to speak at the meeting, but we were just waiting. And so I was doing the crossword, and someone reminded me recently and said, “It was a bold move. You were sitting in a meeting, doing a crossword”

Anne Milgram:             And I was like, “Well, I didn’t want to fall asleep.” It was boring.

Preet Bharara:             I’ll make an admission.

Anne Milgram:             Yeah.

Preet Bharara:             Because you know I can be vulnerable with the Cafe Insiders. There was one time when I was an assistant US attorney and I took the red eye to Italy to interview a witness. With FBI agents and tow and the local Italian agents as well. And had not slept, because the only way to get there and then you know in coach middle seat-

Anne Milgram:             Yep.

Preet Bharara:             … red eye, you arrive, no time to go to the hotel or shower. You go straight to the meeting. And the debriefing of this somewhat important witness, maybe I shouldn’t admit this but. And then the interview is happening mostly in a foreign language.

Anne Milgram:             Yeah. It’s tough.

Preet Bharara:             So the large portions of it, and then it’s getting, it gets interpreted to you. So it’ll be a long response during which it was really hard to stay awake. Luckily for those kinds of things, their extensive 302s prepared, reports of the interview.

Anne Milgram:             Yes because the FBI is with you.

Preet Bharara:             Prepared, but yeah.

Anne Milgram:             Did you ever have a juror fall asleep?

Preet Bharara:             I did not. But it happens, not uncommonly. And then you have a debate for what the [crosstalk 00:44:59]-

Anne Milgram:             What the right thing to do is. Yeah.

Preet Bharara:             So essentially, you know when you kick a juror off and usually the first time they not off, you don’t. There’s also the question of whether or not the sleepy juror is good for the government or not.

Anne Milgram:             Impossible to know.

Preet Bharara:             But one theory is right. If the juror the government like to think sometimes was they’ve heard enough, they kind of think the government has made its case.

Anne Milgram:             And so they go to sleep.

Preet Bharara:             So they don’t need to pay such great attention, which is not a good thing.

Anne Milgram:             I once had a case, I can’t remember, it was my case or someone I was sort of supervising. But there was a juror who fell asleep. It went to the judge and the judge essentially said, “Well, this is really boring. Let’s move on. Like let’s wake the jar up and tell them not to sleep again, but let’s move on from…” And it look, sometimes parts of trials are boring.

Preet Bharara:             It can be embarrassing, right to the juror. And I’ve seen, what I’ve seen some judges to do is they understand what the part with the lawyers, if someone sees a juror looking like he or she’s falling asleep, the judge will take a break. Like “Why don’t we all stretch.”

Anne Milgram:             Yes exactly, “Why don’t we all stand up.”

Preet Bharara:             Not because of any particular reason, but, “Why don’t we all stand up and stretch a little bit?”

Anne Milgram:             I will tell you when I fall asleep all the time-

Preet Bharara:             At night.

Anne Milgram:             Yes. And I cannot watch a movie, if we start a movie after eight o’clock it’s generally like there’s no chance.

Preet Bharara:             Some guy told me recently that he really is enjoying my book and then when he reads it at night-

Anne Milgram:             He goes right to sleep.

Preet Bharara:             … it helps him fall asleep.

Preet Bharara:             I’m like, “How is that a compliment?” And I think he-

Anne Milgram:             That’s true of all books for me. Actually I read before I go to sleep.

Preet Bharara:             Because it’s so interesting that it causes me to lose all the stress I’m feeling about. He tried to walk it back, but I think it was nonsense. Anyways, so we got a little, we digressed a little bit.

Preet Bharara:             So it appears the President has the intention of nominating Eugene Scalia, late Supreme Court Justice Antonin Scalia’s son. Who, I don’t know well at all. So just two quick things, personally. He’s a partner at the firm of Gibson, Dunn and Crutcher, which is the first law firm that I worked for out of law school. And it’s great law firm. In fact, when I interviewed to be a summer associate at Gibson, Dunn and Crutcher, one of the people who interviewed me was a very young Eugene Scalia.

Anne Milgram:             Oh, interesting. Yeah. What’d you think of him?

Preet Bharara:             Thought he was a `nice, smart guy. I was 23.

Anne Milgram:             Yeah, right.

Preet Bharara:             So I didn’t know a whole lot. So I guess there’s some controversy.

Anne Milgram:             And he worked for Barr, right? I mean, so I think there’s some controversy he worked for, I think Bill Barr for a period of time. He’s representing a lot of big companies against unions. And I think the biggest thing I’ve sort of seen as his opposition to the rule, the administrative regulation that was done during the Clinton administration protecting workers from repetitive stress injuries. Essentially they call it, it’s an ergonomics role and it related to carpal tunnel syndrome. And I think he called it unreliable science to say that people workers get repetitive stress injury if they type a lot or do a lot. I can say as a lawyer, and it’s an anecdote, a party of one, but I’m pretty sure that lawyers do type a lot and administrative folks do type a lot and that it is a true thing that people get repetitive stress injury. So I would disagree with him on that.

Anne Milgram:             And I always think you know, there’s a fair amount of science out there to get a a rural pass. There was obviously a scientific conversation. I would want to know more about that, because it’s a little bit of the, I almost laughed when I read it to sort of question the science behind repetitive stress injuries. It’s sort of many people have them. You see people walking around the offices with the sort of cast like things on and I don’t know, I would want him to be asked a lot of questions.

Anne Milgram:             I also really, he’s part of the sort of the federalist society, which is the Republican legal organization and there’s nothing wrong with both the Democrats and Republicans having legal organizations. But there is a sort of question I think of what the level of politics is in his nomination and how political he’ll be in the job.

Preet Bharara:             That often plays more into things when it’s a nomination to the bench as opposed to labor secretary, but we’ll see how that plays out.

Preet Bharara:             Before we end. Sad news, last night, Robert Morgenthau the longest serving, he was attorney of the southern district of New York in recent times. And the very, very long serving Manhattan district attorney passed away just shy of his hundredth birthday. In fact, I was supposed to go to a private birthday party at the southern district I think in a week or two for all the former US attorneys and him, which had been canceled last week, which made me worry that maybe something was going poorly for Mr. Morgenthau. and you were hired by Bob Morgenthau, weren’t you?

Anne Milgram:             Yeah, Mr Morgenthau hired me. I started in the Manhattan DA’s office in 1997, he was the last round interview for, there were sort of four or five rounds to get a job in the Manhattan DA’s office, and he was the last round. And he was an extraordinary human being from the moment you met him. Even in that interview he would look at your resume pretty much cold and he was just a wealth of information about everything in the world. He knew professors I’d had, he knew the judge I had clerked for Judge Thompson, of course he’s been on our show. But he was really interested in getting to know you and understanding why you want it to be in the office.

Anne Milgram:             And from my time in the office, we called him the boss. He was known as Mr. Morgenthau, or the boss. I learned so much from him as a prosecutor and I consider him to be a great man of integrity and fairness. And so it was-

Preet Bharara:             It’s a a big loss.

Anne Milgram:             It’s a big loss. He’s also like have a different, as we talk about such a politicized world, he’s also just someone who was able to navigate in the world in such a fair and honorable way that it is a big loss for our profession. And the world at large.

Preet Bharara:             And also humble. I mean, when asked about his success and his career, he would always have this line right, which had some alliterations, with luck and longevity.

Anne Milgram:             Yeah.

Preet Bharara:             You can go far with luck and longevity.

Anne Milgram:             Yeah.

Preet Bharara:             He was very kind and generous to which is not always the case between the DA and the US attorney. We actually overlapped briefly. He was retiring at the end of 2009 and I took office in August of 2009 right after I became a US attorney, we went to lunch at a famous place that’s sort of between SDNY and the Manhattan DA’s office called Forlini’s. It’s a great Italian restaurant.

Anne Milgram:             Yeah. And every seen in Law and Order is set there.

Preet Bharara:             And we sat in a booth and it’s me and I’m 40.

Anne Milgram:             He had him a booth.

Preet Bharara:             Yeah. And he’s ordering, and obviously he didn’t need to look at a menu. And he’s giving me the benefit of his wisdom and some advice to the kid, the punk now on the block. And if I weren’t intimidated enough, I look over and you see that it’s his booth in the sense that it’s actually marked.

Anne Milgram:             It’s really his booth.

Preet Bharara:             There’s a plaque in the booth. And I’m like, “Maybe one day I’ll have a post it.”

Anne Milgram:             Yeah.

Preet Bharara:             “In a booth.” And that’d be great. So he was a generous person.

Anne Milgram:             A wonderful human being.

Preet Bharara:             A modest person who cared about fairness, and no one’s perfect, did a lot of great things. And served as country, both in the military and in his roles as prosecutors in the federal system and the local system. Rest in peace Robert Morgenthau.

Anne Milgram:             Yeah. Amen.

Preet Bharara:             All right so Anne, I’ll see you a whole bunch this week.

Anne Milgram:             I know in DC, we’re going to take this show on the road.

Preet Bharara:             We’re going to take this show on the road. So I hope you enjoyed the today’s show, which was mere preview and just reminder special episode of Stay Tuned, Anne Milgram and I breaking down the Muller testimony.

Anne Milgram:             Yes.

Preet Bharara:             And on top of that, there’ll be a special bonus for Cafe Insiders. Send us your questions.

Anne Milgram:             Yes. And we’ll answer them.

 

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