Preet Bharara: From CAFE, welcome to Cafe Insider. I’m Preet Bharara.
Anne Milgram: And I’m Anne Milgram.
Preet Bharara: Hey Anne. So, we’re not together this morning.
Anne Milgram: That’s right.
Preet Bharara: You’re in California. I’m in New York.
Anne Milgram: Yep.
Preet Bharara: There’s a lot of sad stuff to talk about.
Anne Milgram: There is.
Preet Bharara: On Saturday, there was a terrible, awful shooting in El Paso and then I woke up on Sunday morning to read about another horrible, terrible shooting in Dayton, Ohio.
Preet Bharara: So, I guess we should talk about both of those shootings. You and I have said many times before, 29 people killed this weekend, that we often have to begin our Monday show talking about a tragic shooting. And here we are again talking about two.
Anne Milgram: Yes. And remember also there was one about a week before at the Gilroy Garlic Festival in California …
Preet Bharara: Yep.
Anne Milgram: Where three people were shot and killed. And so it’s been three essentially in a week’s time, with an enormous number of casualties, and really it’s, I think one of the greatest tragedies that we’ve seen. And one of the things I saw yesterday, you and I have probably seen this stat a million times about the United States is 5% of the world’s population, and yet we have 25% of the people incarcerated in the world. So that’s something in criminal justice people talk about a lot. I was stunned last night when I read that, a study coming off of the World Health Organization’s firearms-related information, talking about the United States having 5% of the world’s population and owning 42% of the world’s firearms. And it’s extraordinary and it’s outrageous.
Preet Bharara: We’re the only country in the world, I believe, that has more guns than people. And so I imagine we’ll get into the potential solutions before which we should get into the potential causes, and lots of people, on weekends like this, they offer the cliched thoughts and prayers, people talk about mental illness. The one that really made me sort of angry was blithe references to video games…
Anne Milgram: Yep.
Preet Bharara: …being the cause of this, and as everyone points out, I believe there are other countries that have mental illness issues. I believe there are other countries that have access to video games. This is the only country where you have this number of mass shootings on a regular basis.
Anne Milgram: That’s right. And I think mental illness, I think all of us would agree that someone who would do this is not mentally stable, right? And so there’s a point that, sure it’s a part of the conversation, but it is not the thing that we are talking about when we talk about the mass shootings. It’s a part of the broader picture.
Anne Milgram: And I think when people look at mental illness or video games, it’s almost like they’re looking for something to blame, particularly with mental illness that is beyond control, that it sort of feels like, “Oh, nobody could have done something to stop this,” or, “It’s very hard to stop it because somebody has a mental illness,” versus thinking about it, I think the right way, which is that we have a tragedy of epic proportions of sort of white supremacism and nationalism that’s happening in our country. We also have access to guns, unlike other nations in the world. And then we also have, of course the Internet and social media, which is giving lone wolves the opportunity to come together and spew hate and sort of share stories and egg one another on. And so you put all that together and it’s creating something of tragic proportions.
Preet Bharara: I’m going to go back to mental health for a second because I think it’s a real cop-out for a lot of folks. Not to dismiss the massive important issue of mental health in this country…we did a report on Rikers Island that found, some years ago, as I write about in my book, some 40 to 45 people of people there have mental health issues, but what’s astonishing that people point out is no one ever talks about the mental health of a jihadist terrorist.
Anne Milgram: Right.
Preet Bharara: Or the 9/11 hijackers, or other people who engage in premeditated massive murder that’s done for reasons of terror. So, you need to be kind of consistent. When the critics are out there calling one kind of action, “Well, it’s a poor, pathetic, mentally ill person.” And when it’s another kind of person, they don’t talk about it that way.
Preet Bharara: And so I think it goes back to the point that you just made that for unfortunate rhetorical or political reasons, there seems to be a weird distinction between white nationalist terror acts and other kinds of terrorism acts that are related to terror organizations like Al-Qaeda and Al-Shabaab. And not only is there a difference in the rhetoric, which we’ll talk about, a difference in how the law treats them, because there is currently no law in the United States, even though there’s a definition of domestic terrorism, there’s no separate crime of it. And we’ve talked about that before on the show.
Anne Milgram: Yes. And we should talk about that again. One of the things I read over the weekend, which I thought was so important and essentially echoes exactly what you just said, I think it was USA Today, was this statement that if a terrorist did this, an international terrorist, we would be united as one against it and new voting laws and powers would be given to our government.
Anne Milgram: And that’s essentially a paraphrasing of a USA Today, I think it was an op-ed. It’s completely right. There is no question in my mind that we have divided the world between things that we see as an external threat, like an international terrorist attack for which Americans have come together, as opposed to mass shootings based on hate. And we’ve seen them now targeted at people based on being Jewish, people being based on being Latino, on anyone who’s different. And if we go back to Florida, to people LBGTQ.
Anne Milgram: And so we have to really talk about what it is to be engaged in domestic terrorism. And my personal view is that we do need a crime, and we need laws and powers to go to our government and to our law enforcement agencies to look at this differently. And if we don’t do that, I fear that we’re going to be in this exact position. And there are many other things that we have to do, obviously, in addition to that, but it’s incredibly frustrating to me to see the divide that you just mentioned, and it’s absolutely the reality that we’re living in.
Preet Bharara: So let’s talk about this guy in El Paso. So, we don’t use his name, and since this is not television, we won’t use his image and we don’t have the temptation to use his image. And I think, by the way, a lot of people are getting the message on that. I actually couldn’t tell you the name of the shooter in El Paso or in Dayton because I think people have done a good job…
Anne Milgram: Me too.
Preet Bharara: …remembering the point that you don’t want to make that person a martyr, and both make him famous and also prompt copycat actions, because some people want to do it because they want to become famous.
Preet Bharara: There is no doubt, right, that the El Paso shooter was a racist and a nationalist. He, as the news reports keep referring to, penned a “manifesto.” To my mind, something needs to be a bit longer than three or four pages to be a manifesto. But I guess manifesto is now a sort of a stand in for racist diatribe, if that can be true. And he called it The Inconvenient Truth, and he basically made it clear that the reason he drove 10 hours, drove 10 hours to get to El Paso, to come there and shoot as many people as he could…he doesn’t like what he refers to as the Hispanic invasion.
Anne Milgram: And when you look at the postings online, they are filled with hate. There is a statement that, exactly as you said, that essentially Texas is being overrun by Hispanics and that he’s afraid that the state is going to go Democratic. And he goes to a place…El Paso is right on the border with Mexico across from Ciudad Juarez and people go back and forth from Mexico all the time to that city. It’s a very dynamic city. It’s also a place that has been one of the focal points of the crisis at the border with nonprofit relief organizations struggling to keep up with Border Patrol deployed there. And so it’s absolutely, if you were in Texas, a place when people think about the border, people would think about El Paso. And so, when you think about something being premeditated, he chose the location specifically to target Latinos.
Anne Milgram: And then he writes this manifesto to talk about what’s happening in the government. He also does something where he talks about Trump, the President, and that he also talks about his feelings predated Trump. But it’s also very clear, and we should talk about this a little bit, the President’s use of the language of nationalism and hatred and vilifying the other.
Anne Milgram: And it’s not just, I mean, there’s an attack on immigrants and people who are coming from other countries. There’s an attack, frankly, on women, who are members of the United States Congress, who he told to go back to where they’re from. There’s an attack on the city of Baltimore, which is predominantly a minority city. And there have been countless ways in which the President has vilified the other, people who he considers lesser than the white majority in the country. And so I think we need to talk about that, and what does that mean as we think about how do you solve this problem?
Preet Bharara: Yeah. So I want to make sure that we’re very careful, because as tensions rise in the aftermath of something like this, it’s important to be precise.
Preet Bharara: Now, neither I nor you lay the blame directly at the feet of the President based on his rhetoric. The President didn’t cause this person in El Paso to go and kill 20 people. This person had free will. On the other hand, we should expect more from the President of the United States, who should be unifying the country and who should be the President for all Americans, whatever their color, background, creed, national origin, or anything else, to represent everyone.
Preet Bharara: And the standard shouldn’t be that he was the proximate cause for hateful massacres that happen from time to time in this country. This standard should be, what is he going to do about it, and has he sort of given a grist and sustenance to a white nationalist movement that causes some people on the fringe to do that which we find unthinkable? And you mentioned a couple of things that he did when playing on a loop on television, a couple of specific things that he did, one of which they had been showing him at a rally not that long ago where he’s talking about the immigration problem. What are we going to do about this problem?
Donald Trump: We can’t let them use weapons. We can’t. Other countries do. We can’t. I would never do that. But how do you stop these people? You can’t. There’s no … that’s only in the panhandle you can get away with that statement.
Preet Bharara: And someone in the crowd, it’s hard to hear, but someone in the crowd yells, “Shoot them,” and then Donald Trump, as he often does, mugs for the camera, smirks, smiles and then jokingly says…
Anne Milgram: Yes.
Preet Bharara: “Only in the panhandle can you say something like that.”
Donald Trump: Only in the panhandle.
Preet Bharara: Only in the panhandle, folks, which is not decrying it, which is not criticizing it. He’s welcoming it. He’s laughing at it. And then there’s the other occasion where he talks about how he welcomes the phrase and term ‘nationalist.’ He welcomes the label.
Donald Trump: You know, they have a word. It sort of became old-fashioned. It’s called a nationalist and I say, really? We’re not supposed to use that word. You know what I am? I’m a nationalist, okay? I’m a nationalist. Nationalist. Use that word. Use that word.
Preet Bharara: Because he doesn’t have any sense of history. He doesn’t have any sense of how to unify anyone. He doesn’t have any sense of the damages words do. And now, by the way, and I think he’s spoken this morning, Monday morning, but for two days in the aftermath of all of this, he is rendered silent because he has the least credibility on these issues of any President in memory.
Anne Milgram: I agree. And I think you’re right, Preet, to point out that it would also be too easy, just as it’s too easy to say mental illness is the cause of this, I think it’s too easy to say President Trump did this. And I think there’s an ingredient of nationalism and hatred that he is espousing that is infecting our country, but we also have to be clear that he’s tapping into something that exists and he’s empowering or fueling a movement that has long existed in the country. And so … and perhaps by being the President of the United States, he’s giving voice and making people feel comfortable giving voice to their hatred. But we have to make sure that when we think about solutions … if Donald Trump was not president tomorrow, the whole problem would not be solved. And so I think…
Preet Bharara: Right.
Anne Milgram: …it’s really important to look at it as he needs to step up.
Anne Milgram: I think all the time too about one of the most important things you can do in a time of crisis is act, take action, be strong, and be bold. And it’s, we have not seen the President do it. We didn’t see him do it after Parkland. We haven’t seen him do it in the face of mass tragedy, and he needs to be the President for all Americans. And that’s what it means here is to step up, to unify the country and to figure out how do we stop this from happening? And I think all Americans want it to stop happening, whether they’re Democrats or Republicans. And so I do think he has a much higher level of responsibility to act and to address this because he holds the power.
Preet Bharara: So while we’ve been sitting in the studio, I took a moment to check my phone, apologies, to see if the President has said anything. And so while we’re taping on Monday morning, I got a Wall Street Journal alert and I haven’t been able to read the speech, but the president clearly had someone write something for him, hopefully in this case not Steven Miller. And the headline is President Trump condemns quote, “racism, bigotry, and white supremacy.” So someone writes nice words for him, which he will utter without a lot of grace, I presume.
Donald Trump: We must seek real bipartisan solutions. We have to do that in a bipartisan manner that will truly make America safer and better for all. First, we must do a better job in identifying and acting on early warning signs. I am directing the Department of Justice to work in partnership with local state and federal agencies, as well as social media companies, to develop tools that can detect mass shooters before they strike.
Preet Bharara: And then he will go right back to making all these other dog whistle statements, and sometimes directly offensive bigoted statements, because that’s how he is. I mean, the funny thing about all of this is whether or not you think you’re the cause, whether or not people go overboard in talking about the rhetoric of Donald Trump, and I don’t think they do, in the wake of shootings like this, and in the wake of the criticism, how hard is it to just knock it the hell off, right?
Preet Bharara: Just stop it. I mean, Donald Trump knows the phrases he uses that get people upset. He knows the criticisms that he makes about black politicians that offend people, I think rightly so. He knows the atmosphere he’s creating. I know a lot of people like to think he’s an imbecile, but he’s not. He’s actually a smart politician in a lot of ways. So what he does is deliberate, and you would think after all this, it’s actually not that hard to knock off the rhetoric. And the funny thing about it is it just does not come naturally to him.
Anne Milgram: Yeah. He almost can’t do it. It’s like …
Preet Bharara: He can’t.
Anne Milgram: He can’t. Even after Charlottesville, it was something very similar where he, you know, he equated and said, sort of both sides, equated both sides, which is outrageous and…
Preet Bharara: Right!
Anne Milgram: …of course completely wrong. And then his team made him step that back. But he went back to being more defensive of his original rhetoric. Like he couldn’t help himself, and he couldn’t just do the thing that people were saying, “No, you, you have to condemn this.” He couldn’t follow through on that.
Anne Milgram: And to your point about the dog whistle, I think that’s an excellent point. Preet, and it’s, it is exactly what’s happening. And he does it. One day, it’s cities like Baltimore, another day, it’s members of Congress whose background is from different countries but are all American citizens. And the next day it’s immigrants. And so, you know, he’s sort of jumping around vilifying folks and sending these dog whistles out. And collectively, that comes together to create an explosive culture for white nationalists and white supremacists.
Preet Bharara: And sometimes it’s not dog whistles. Remember, he began the campaign saying Mexicans are rapists. He talks about infestations, you know, drug and crime infestations and rodent infestations when he talks about immigrants and when he talks about people of color in their communities. So sometimes it’s a dog whistle, sometimes it’s blatant, clear rhetoric that he’s doing deliberately.
Anne Milgram: Yes.
Donald Trump: Mental illness and hatred pulls the trigger, not the gun.
Preet Bharara: So, and I think you’re exactly right that, you know, it’s good to analyze the rhetoric and how we speak and how the President of the United States speaks is very important because everyone hears what he has to say, whether we like it or not. But then action.
Preet Bharara: And the two most significant pieces of action that people have been talking about, not just in the last couple of days, but for a long time-and we had Shannon Watts, who is a common-sense gun reform advocate-the two most important things people have been talking about are background, universal background checks, so there are no loopholes, and red flag laws. Now with respect to at least the first, I haven’t looked recently, but the level of support in the country, including among NRA members, and including among general population gun owners, is like 80 or 90% in favor of universal background checks.
Anne Milgram: Yes.
Preet Bharara: How come we don’t…you worked in the Senate, Ann. How come we don’t have that?
Anne Milgram: You know, this was on my list of things to talk with you about and to ask you, how can Mitch McConnell block this?Before we even get to the why the United States Congress isn’t acting, let’s do a couple of other ideas I think, because I think you’re right on universal background checks. I also think the red flag laws that allow someone’s family or law enforcement to basically say, “This person is suffering from mental illness or is unstable so they shouldn’t get access to a weapon.” Those are important. Open carry laws are state by state. That’s one of the challenges in law enforcement responding to these scenes. There should be, in my view, a ban on high capacity guns and magazines.
Preet Bharara: Yup.
Anne Milgram: But let’s even go one step higher, which is that one of the things I was struggling with yesterday is that when we talk about gun regulations, we always assume that the burden of proof is essentially not on the person who wants the gun, right? And you know, we see this a lot in government and in law, which is, the question is, whose responsibility is it?
Anne Milgram: Like if I want a driver’s license, the burden of proof is on me to go in to the government and show them that I’m a reasonable driver, I understand the laws, I take a written test, I take a driver’s test. I have to go through this process to show I should get this. And then by the way, I have to pay them money, get my picture taken, and then five years later I have to do it again. Because I have to prove to them that I’m still someone who can drive. And if I need glasses, I need glasses.
Preet Bharara: Right, but driving, people would say in response to you, is not a constitutional right.
Anne Milgram: But the constitution doesn’t say who bears the burden. Right? And the constitution says the right to carry and bear arms and you know, putting aside agreements or disagreements about whether or not the Supreme Court should have strengthened the Second Amendment as it did not so long ago. The bottom line is that there are so many examples where you and I, we’re both top secret cleared. There is a very thorough investigation into our backgrounds and beyond the people we give them. They go out and knock on neighbor’s doors, they talk to everyone they can. There’s a lack of vetting on gun licenses that-and it’s intentional in many places-but I think we have to, you know, beyond even just talking about the regulations that I do think matter and would make sense, I also think there’s a real question of you know, you want a gun license. Okay, but what’s the process by which it would be reasonable for us to give it to you?
Anne Milgram: Because many of these folks, I believe, if there was even the slightest vetting, they would be knocked out. If it was more than just walking in and paying money, they would be knocked out. To your point, it is different than a driver’s license, but look, a car can be a deadly thing, a gun can be a deadly thing. And it’s one of those conversations I think we need to have.
Anne Milgram: I’m not saying it’s going to change tomorrow, but I do think there is a problem in the way we’re looking at this politically, because the right has framed the issue in such a powerful way that even the conversation about the regulations, I have a real question of whether or not this whole issue needs to be reframed and I’m not sure that the burden of proof is the right way to reframe it, but I wanted to just sort of ask your thoughts on that because in some ways, we’re playing on their playing field when we’re talking about these issues.
Donald Trump: We must stop the glorification of violence in our society. This includes the gruesome and grizzly video games that are now commonplace. It is too easy today for troubled youth to surround themselves with a culture that celebrates violence. We must stop or substantially reduce this, and it has to begin immediately. Cultural change is hard, but…
PART 1 OF 3 ENDS [00:20:04]
Donald Trump: [inaudible 00:20:00]. Cultural change is hard, but each of us can choose to build a culture that celebrates the inherent worth and dignity of every human life. That’s what we have to do.
Preet Bharara: So I’m an advocate for lots of these gun laws and gun reforms, and I’m a resident of the state of New York that has pretty rigorous gun licensing provisions, so all these things you’re talking about, that takes place in New York, but people would say in response to your argument, “Well, that’s done on a state-by-state basis,” and in New York, the decision was made and the courts have upheld as not an infringement of the Constitutional right under the Second Amendment, the right to bear arms, these common sense licensing practices.
Preet Bharara: But in other places they don’t, so to the extent you’re saying this conversation maybe should extend into the Congress and federal legislation of licensing, maybe that’s a good idea. Maybe it’s not. I think that’s a lot more difficult to do and is a little bit less supportive of that, probably depending on the state you’re talking about, and there may be less support for that federally than for some other things.
Preet Bharara: I take your point, but I think also people would say, to the extent it’s a Constitutional right, and not everyone loves that that’s a Constitutional right, that the better analogy is not necessarily driving a car, for which you have no Constitutional right, or becoming a US attorney or someone else or getting security clearance for which there is no Constitutional right, but rather speech or voting. And in those circumstances, and I have to think about it a little bit more, based on the analogy you were using, you know, the burden, if that’s the right way to talk about it, and usually that’s the way we talk about proof beyond a reasonable doubt in a criminal trial, not in the exercise of a right. Generally speaking, you have a right to free speech, and you don’t have to pass some test or show that your speech is going to be smart or wise or productive before you have the right to exercise that privilege under the First Amendment.
Preet Bharara: The difference between America and all these other countries that people sometimes miss, and in good faith they’re making these arguments … You know, in New Zealand, there was this massacre, this terrible massacre, and overnight, as everyone points to, they changed the law. Well, New Zealand doesn’t have a Second Amendment, and these other countries have not exalted the ownership of guns and the right to bear arms to the same degree that this country has, but that’s the reality we live with. So some of these things are very difficult to do, because there is a thing called the Second Amendment, right?
Anne Milgram: So I want to agree and disagree. I want to agree with you that as a Constitutional amendment, there’s not that many of them, and they’re important, and so Constitutional amendments are part of the fabric of American society. Okay, so again, even conceding that, think about the First Amendment, which we just talked about in free speech. Yes, you and I have the right to say what we want to say, but there are limits, and when it turns into hate speech, that is not allowed. You and I could be in a movie theater and say terrible things about someone, and that’s completely allowed. We can’t yell “Fire!” in a crowded movie theater, again because there are limits, and I think the question is … And I don’t have the exact answer, but the framing of this as it’s an absolute right that’s very hard to regulate and that states do it one by one, I think we have to reframe that.
Anne Milgram: And the other point I would make, and you make a great point about New York, which has really strong gun laws … Where I was AG in New Jersey has really strong gun laws. In both of those states, four out of five illegal guns that are recovered in the states, those states come from other states.
Preet Bharara: Somewhere else, yes.
Anne Milgram: And you know, the pipeline is Virginia, Ohio, Pennsylvania, a lot of other places that supply … Mississippi, a lot of other places that supply unlawful guns. We saw one of the weapons used in a mass shooting recently was purchased in Nevada, that has laxer gun laws, and so we have to think about this as a national problem, because as federal crime always considers, people cross state lines, and that’s why you have federal offenses. And so I think we have to sort of think about, you know, are we making a mistake by going down a road where the framing is kind of already set, or do we need to reframe it?
Anne Milgram: Now, let’s go back to the politics of this, because you and I, I think you worked in the Senate at the same time. Do you remember the vote on the Senate floor? And this is going back. I don’t know if it was 2006, maybe 2005, where they passed the amendment to one of the bills that would not allow gun manufacturers to be sued.
Preet Bharara: Yeah, I remember that.
Anne Milgram: Do you remember that? I remember, and I think I was on the Senate floor that day and I could vividly recall standing there and thinking, “So we’ve now essentially given immunity to gun manufacturers, that in any mass shooting, they have no liability.” And I remember standing on the Senate floor and thinking, “How can this happen in the United States Senate?” And I think it’s a really fair question for the American public to be asking, which is how can Mitch McConnell, the Republican leader of the Senate, and the Republicans are in control of the Senate now. How can he be stopping these reforms from being passed? Because I believe that the Democratic House of Representatives would pass additional gun regulations.
Preet Bharara: They have. HR8 has a number of sensible gun regulations. And when you talk about how can Mitch McConnell do this, let’s just remind everyone that Mitch McConnell held up and blocked the confirmation of a supreme court nominee lawfully and appropriately nominated by Barack Obama many months before an election, because that’s what Mitch McConnell does. And this whole issue of how we think about the gun laws and whether there are reasonable restrictions that are okay. I think there’s no human being, even the most ardent Second Amendment supporter, who actually disagrees with that when you put to them the following example. Pete Buttigieg has said it this way: “Look, everyone has a right to have a water balloon, and no one has a right in America to have a nuclear weapon.” Those are the two extremes of what a right to bear arms might mean, and we just need to think about how to draw it more carefully.
Anne Milgram: One other thing just to raise, Preet. We had talked a couple times about 8chan and the social media, the sort of posting board that people have used and in New Zealand, the shooter there had posted his manifesto on 8chan, on this website, before the shooting. Here in El Paso, the shooter also posted his manifesto. I think it was like 19 minutes before the first 911 call came. He posted his manifesto online on 8chan. Something pretty extraordinary happened last night, because the company that was essentially … When you have websites like this, it is often the case that people who want to take them down, hackers, they will make a concerted effort to flood the websites with requests that essentially crush the site. And you can, in your own lives, think about the day after Thanksgiving, when everyone’s doing online shopping and some of the websites crash. They just can’t handle the volume.
Anne Milgram: And so there are these web providers, essentially, that provide what’s called DDOS protection, and they stop this from being able to happen to websites, and that company that was providing that protection to 8chan said yesterday that they would no longer provide that protection, and so it basically appears that 8chan will be taken down. That doesn’t mean that there isn’t another site that will come in its place, but one of the things I was struck by in reading about the sort of use of the Internet this way is that it has afforded lone wolves and people with extremist views to find a community and to egg one another on.
Anne Milgram: And you know, there’s even been reporting about people sort of wanting to top other mass shootings, and so I think it’s just an important piece to think about how technology and the Internet is a part of this and where do you draw the line and how do we think about this? And by the way, 8chan, the company that provides the protection, the protection against hacking, they did not stop after New Zealand, after 51 people were murdered there. They did stop yesterday.
Preet Bharara: Yeah, but here’s the perverse thing about the macabre timing of the last two shooting incidents. These things happen every few days, every few weeks, and the numbers are mind-boggling, right? There’s something about the fact that there was a mass shooting on Saturday afternoon and then 13 hours later, there was another mass shooting, and for good or ill, the compound effect of those things on the same weekend and in the same news cycle has, I think, caused more people to think about this, more people to take stock, the 8chan guy to take that action, the president to make, perhaps, a better speech than he’s made in a while. People talking about having the Senate come back and think about these bills passed in the house.
Preet Bharara: All of that activity, I hate to say it, probably would not have happened had there been the one incident, and so it’s terrible and awful to think that it sort of seems to require not just a mass shooting, but you know, a really particularly awful one, whether it’s Parkland, where kids are killed, or this weekend, where two things happened in two different cities in two different states, thousands of miles apart, that causes people to take action, and it shouldn’t be necessary, but it kind of is.
Anne Milgram: Yes, and I would even add the Gilroy Garlic Festival into that, that it was sort of the drum beat of one weekend there’s this mass shooting. Then the next weekend, there’s two mass shootings, and someone said last night that there’s been more mass shootings this year than there have been days of the year. There have been an extraordinary number of mass shootings in 2019, and I think you’re right that the three coming so close together have really galvanized our attention onto this problem.
Anne Milgram: And also, frankly, you know, the Garlic Festival in California is a social event that families attend. Walmart, a lot of families were there doing back-to-school shopping. In Dayton, at that shooting, it was at night time. A lot of people were out having fun, and so I think there’s also a sense of … And there always is in my mind with the mass shootings, that it could have been any one of us at those events or those places. And obviously, they’re targeted for specific reasons, those specific locations, by the murderers, but yeah, it’s really important to note that I think that there is a sense among the public that you know, but for the grace of God go I.
Preet Bharara: Can I make a point about both shootings relating to something you mentioned in passing earlier? That’s open carry laws and the absurdity of it and the craziness of it. I saw a former ATF agent on television this weekend describe to me what’s a chilling scenario, and that is you have a bunch of families sitting in a restaurant with windows, in Texas or somewhere else where there’s a very liberal open carry policy, and you have a guy getting out of his car, walking towards the entrance of the restaurant, and the guy is strapped and he’s got a long gun and clearly, he’s got ammunition on him. He’s walking intently towards the front door of the restaurant. Now in the old days, before you had so many open carry states, people would call 911. The cops would come and you would prevent what might be potentially a mass shooting.
Preet Bharara: But there’s no way in a state that allows a person to walk openly with firearms like that, to know if the person is coming in to get an omelet or if he’s coming into shoot everyone in the restaurant, and that’s kind of frightening. And the related point is, when you think about Dayton, and so far there’s been no evidence to suggest that that was a hate crime or domestic terrorism. Apparently, the shooter, there also killed his sister before he went to the location where he killed nine people.
Preet Bharara: Now, remember, he killed nine people in a minute flat, and there were police nearby. And by the way, in El Paso, there were people who were armed, and as you say, it created some confusion and some, I think, wrong reports about there being multiple shooters. The point of which is, this idea that we’re going to solve the problem by giving a good guy a gun to take down a bad guy with a gun extending even to teachers, who are supposed to be educating our kids on Earth science and biology and chemistry and English, that when you have someone who is capable of killing nine people in a minute, even when officers are nearby, and even in circumstances where there are citizens who have weapons, it seems quite silly to me.
Anne Milgram: Yes, and I will say this. The Dayton police officers did an extraordinary job to get there in less than a minute and to stop the shooter, and it is really true when you hear law enforcement folks talk about what do you do when you get called to the scene of shooting and there’s 10 people holding guns and sort of running around with weapons? You have to identify who the shooter is. And you know, if you’re not sure who’s who, it’s very, very difficult to respond in that situation. It creates chaos and the last thing law enforcement wants in that kind of a very difficult, fluid situation, is to not be able to quickly identify who the shooter is.
Preet Bharara: So going back to what laws we should pass, separate from things that deal with guns and the proliferation of guns and open carry and background checks and red flag laws and all the rest, there’s this question of why we don’t have a domestic terrorism statute. People get a little bit confused when they see folks talking about the FBI investigating something as domestic terrorism. That’s a definition that allows a certain kind of investigation, but there’s no statute like there is for international terrorism and material support of a foreign terrorist organization that’s been designated by the United States. We don’t have such a law.
Preet Bharara: Now as a pragmatic … We’ve talked about this before. As a pragmatic matter, when you’re talking about mass shootings like this, the practical effect is not so large. Guy walks into a place, mows down, massacres 20 people. That’s going to be prosecuted, at a minimum, by the state as a multiple homicide case. In Texas, they’ve already announced they’re going to proceed with it as a capital case. but I think you’ve said before that with respect to things like that and hate crimes, it matters what we call it and the law should reflect what it is.
Anne Milgram: That’s right. I think there’s one other point, too, which is that these are times where people cross state lines to purchase weapons. They are times where people are on the Internet, places like 8chan. Having the federal government involved is an enormous enhancement to those investigations and prosecutions, and you know, I’ve been a local, a state, and a federal prosecutor. The scope of these types of offenses, in my view, warrants federal prosecution.
Anne Milgram: The other point is once that is a crime, you really empower and open up. Whether it’s the ATF or the FBI, you’re empowering law enforcement agencies to do some of the things that we do in international terrorism cases to monitor suspects, to monitor problematic websites, to take preventative actions and to essentially be very, very vigilant in thinking about how do you prevent and stop the next attack? And so there’s a really important point, which is regardless of whether or not people can be prosecuted and put in jail for the rest of their lives, can we number one, call it what it is, and number two, also give federal law enforcement not only the power, but also the responsibility to work on these types of cases to prevent future harm?
Anne Milgram: And so I think it’s truly important that there be a domestic terrorism crime in the country.
Preet Bharara: Yeah, I couldn’t agree with you more. It also, further to what you’re saying, and consistent with what you’re saying, it creates a culture of prevention among federal law enforcement agencies. There was this odd reference in a Washington Post article over the last couple of days, mentioning something that was said by a former FBI supervisor, who says, and I have a hard time believing this, although I guess these days, I’m prepared to believe everything, who suggested that there are FBI agents who are a little bit loath to investigate domestic terror cases, at the risk of offending Trump’s base.
Preet Bharara: Now, I find that to be a little bit hard to believe, based on the sort of rank-and-file FBI agents and other federal agents that I know, and they go after crime where they see it. And I don’t think political considerations would play in, but here you have an actual former FBI supervisor suggesting that that’s a concern.
Anne Milgram: Yeah, that’s a chilling point, and I agree with you. Most of the agents, all the agents I know, I think, would do what’s right. But I also think that, you know, the supervisors may not be looking to go out and make cases, and you know, as administrations change, priorities change, and so it could be that agents are circumspect about how if something hasn’t come in as an actual crime, they’re circumspect about how far they go with leads and how much they pursue it. Is that possible? I don’t know, but it’s definitely … The way to not have any of this be a question or an issue is to make it a domestic terrorism crime and to not only empower but task the FBI with. You’re going to create a domestic terrorism unit. You’re going to have folks who are focused on these individuals and the hate groups that they belong to, and we’re going to understand and try to prevent the next shooting from happening.
Preet Bharara: Hopefully, people will will take real action this time. It’s been said before and it doesn’t happen. The president has said it before and it doesn’t happen. Maybe it will at this time. We’ll come back and talk about it in the weeks to come.
Preet Bharara: So something else a little less sad, but interesting in the world that you and I live in, was the Democratic governor of California, Gavin Newsom, signed into law a provision that requires a presidential candidate who wants to be on the ballot for the primary in 2020 to release and file multiple years of tax returns.
Anne Milgram: Yes.
Preet Bharara: Now, it’s sort of interesting, and I will say this is an issue that a lot of people have talked about. We’ve talked about it on the federal level, and in the actual signing statement that Governor Newsom issued when he signed this provision into law, he makes a reference to a project of mine. He refers to the following: In October of 2018, the Brennan Center’s National Task Force on Rule of Law and Democracy, a bipartisan group of former public servants and policy experts, recommended that Congress standardize and codify the longstanding practice of tax return disclosure by sitting presidents, vice presidents, and candidates for those offices, to assist voters and deter corruption. I agree.
Preet Bharara: So it’s interesting that part of the inspiration for that law is the work that Governor Christie, Todd Whitman, and I had been doing with the Brennan Task Force. By the way, there’s another report coming out in the coming weeks. The differences is, his law is a state law and we were proposing Congress to pass a law, which I think probably stands in some better position, legally and prudentially, than this than the state.
Anne Milgram: I agree with that. I think that a federal law, if it were passed, would have much more chance of being upheld as constitutional, and I think there is an open question about whether or not this state law will be constitutional. So the state law applies to the presidential primary. It also applies to candidates for governor within the state of California. I believe that California and the governorship, that strikes me as that will be upheld. I think the question is on the presidential primary.
Anne Milgram: What’s interesting about it is … So folks understand, it’s the presidential primary election in California. It’s not the general election, and this is one of the things I looked at closely, which is that … So let’s say that hypothetically, Donald Trump … In California, he will not provide the past five years of his tax returns and the law is found to be constitutional and goes forward. That would then mean that Donald Trump was not on the ballot. He could be written in, and regardless of whether he was written in, he could still be … If he’s selected as the nominee, nationwide, he would still be on the California general election ballot as the Republican nominee, and so it’s important just to note that it’s not insignificant, as a transparency measure, but it’s not going to mean that Donald Trump is not on the ballot in California for the election.
Preet Bharara: Right, it’s largely symbolic in that way. And by the way, you know, there was a prior governor, I’m sorry, who’s no conservative and no fan of Donald Trump, named Jerry Brown, who actually vetoed the identical bill two years ago in 2017, and although I’m generally supportive of California’s attempt, I just worry about the constitutionality, also, and I think a federal law would be better. But here’s what Jerry Brown said in vetoing this precise law. He wrote, “I worry about the political perils of individual states seeking to regulate presidential elections in this manner. First, it may not be constitutional.”
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Preet Bharara: … regulate presidential elections in this manner. First, it may not be constitutional. Second, it sets a slippery slope precedent. Today, we require tax returns, but what would be next? Five years of health records? A certified birth certificate? And this is sort of a non-legal but sort of policy concern people have been raising. Now what’s going to happen next? Is the state of Alabama or some other red state going to require candidates to provide something that Democrats maybe would find problematic? Are you going to have a slippery slope? Are you going to have a tit-for-tat system? How’s that going to work? I don’t know if that’s a good reason or not a good reason, but at the end of the day, I guess there’s some symbolic value in highlighting and underscoring the importance and need for people to be clear about their tax records. Going back to Nixon, who said something like, “The country is entitled to know if their president is a crook,” which ironic that it was… I think it was Nixon who said that. That in this case, it’ll have no effect on whether or not Donald Trump is ultimately on the ballot in California.
Anne Milgram: Yes. I do think, to the point though, there is an important aspect of transparency here, and there is a conversation that is important because there has to be some way to test whether or not a presidential candidate is corrupt and whether or not they have the ability to be influenced by others or by foreign powers. So the best way to do that is for the person running for office to be transparent and to provide their tax returns. I think here, with Donald Trump, we really do have a situation where that’s not the case, and so the question is, how do we do this?
Anne Milgram: Ideally, Congress would pass this legislation that requires the presidential candidates to divulge their tax returns. I, personally, strongly support that. I think transparency is critical on these questions. Remember, you don’t have a right to be the president of the United States. Essentially, it’s a job application process, and I think it’s very reasonable for the people to whom you’re applying to say, “We want to see your tax returns.”
Anne Milgram: As to the state, it’s a really interesting question of whether or not it’s constitutional. A lot of folks came out and said, “Oh, it feels like it’s not constitutional because there are very few requirements that are set. You have to be 35 years old to run for president. And where the states have been given authority to regulate those elections, it’s often around administration things. They’re allowed to, for example, require that a candidate get a certain number of signatures to be on the ballot to make sure that people have sufficient support to be part of that election.” I’m not sure it is unconstitutional as long as it’s applied evenly. It’s an open question, in my mind, and you have some pretty significant legal scholars on both sides of this question, but particularly on the side of saying it could be that they believe it’s constitutional. And so I think it’s an open question for the court.
Anne Milgram: I do believe that the Trump campaign will sue. I mean, that’s probably the only thing that we know for sure in this is that there’s going to be a lawsuit.
Preet Bharara: One perversity in the argument that the California folks will bring to bear in support of its law, oddly, goes right back to what we were talking about a second ago. And that is, it ultimately does not deprive the party from choosing its nominee and having its nominee… in this case, in all likelihood, Donald Trump… in the general election, and so therefore it can’t be an undue infringement on that right.
Anne Milgram: Like it’s such a weak law that it doesn’t really matter.
Preet Bharara: It’s so weak that we’re actually not causing any harm to anyone’s interests because at the end of the day, he’ll be on the ballot. So there’s that interesting-
Anne Milgram: It’s never a good sign if that’s your constitutional argument.
Preet Bharara: But we’ll see. As you said, there are… I don’t know the answer to the question. I don’t know how I would vote if I were a neutral judge considering the case. I think there’re arguments on both sides and we’ll have to see.
Preet Bharara: So last week, Anne, we talked a bit about John Ratcliffe, congressman, who Trump was planning to nominate to be the DNI, Director of National Intelligence. So we had all these discussions about whether or not he was qualified, whether or not he would get through, whether or not he had embellished his record as U.S. Attorney and as an Assistant U.S. Attorney. It took about two days, and he withdrew.
Anne Milgram: Yes, he flamed out very quickly, and he did so in the face of… once he was going to be the nominee, there was an incredible amount of attention focused on his claims, claims that he had prosecuted 300 undocumented immigrants-
Preet Bharara: No, he said, “Arrested.” He actually said-
Anne Milgram: Arrested. Yes, right. That’s right. Claims that he had done certain things in terrorism cases. But as is sometimes the case, sadly, when the media started to ask question and push on those claims, they were unsupported, and there were a number of ways in which it had come out that Ratcliffe had made statements while running for Congress… he’s been elected three times… he made statements that turn out not to be supported by the facts. And so it felt like there was a lot of information coming out about ways in which he had not been forthright and that it was very possible that there was more coming, and so he withdrew, or the president’s people told him he had to withdraw. We don’t know the inside of that story, but it was surprisingly fast.
Preet Bharara: Look, it’s another example of how the president and his team do basically no vetting. In fact, did you see this exchange between the president and the press where he says, “Yeah, I throw out a name and then the press vets him, saves us a lot of time and money.” So the same press that’s the enemy of the people, that’s all fake news, is the same press that he’s… I mean, that’s a guy who likes to put lipstick on a pig. He’s like, “I totally screwed this up. The guy totally lied about all aspects of his record. He was not going to get approved by the Senate, and we didn’t do any vetting. But that was intentional, because you guys do the vetting for me.” It’s ridiculous and absurd and not a way to run the government.
Preet Bharara: The other point about it is… and it’s a point made by a lot of folks about journalism… how come it’s the case that this person got elected to Congress and reelected multiple times when, on his website, he has all these false claims? It was only when the national press finally turned its attention to this person who was going to have a huge role overseeing the intelligence community that these fairly basic things come to light. It makes you wonder how many other people are serving in office who shouldn’t be.
Anne Milgram: It’s a great point. One other thing that came out about Ratcliffe… and we don’t know know all the details yet, but there are whistleblower allegations that surfaced just before he withdrew… but Ratcliffe’s withdrawal may have been about, as much as these false claims, about his proximity to a company that has been accused of basically taking action against a whistleblower. And so we don’t know the full details of that story, but it also may be part of what happened. It’s clear there were just a ton of things that started to come out about Ratcliffe and that he was unlikely to have gotten the support he needed to get through, in addition to the fact that, I think… you and I talked about this last time, but DNI is a space where there have been professionals, the Director of National Intelligence, it is very much relied upon by the Senate and House Intelligence Committees. It’s a very, very important job, and so I think there were a lot of comments I heard that people were concerned that he wasn’t up for the job as well.
Preet Bharara: And now there’s still some uncertainty about what happens next. Because unlike with respect to other positions, the law actually specifies with particularity who in the chain of command takes over as acting DNI. And in this case, it’s a woman named Sue Gordon who has been there for close to three decades, respected, as far as I understand it, by both sides of the aisle, but the president’s allies do not want her to take that position even though the law specifies it. Because according to reports, she seems to have been a little bit close to John Brennan. Now, she served in Democratic administrations, Republican administrations. Congress was very specific about who should take over that important post, and now there’s talk… and I hope it’s not true, but there’s talk that the way they can get around the law, the succession law, is to remove her, and then they have a larger group of people to choose from.
Anne Milgram: Right. And one thing to note is that she’s very well-regarded by both Democrats and Republicans in Congress. Again, she’s been a professional staff member. She’s basically seen as a very, very strong intelligence official, and so even the Senate Intelligence Committee Chairman, Republican Richard Burr of North Carolina, said, “The statute is very clear. The deputy takes over as acting.” And so it’s really important that we note that legally and lawfully, she has to take over.
Anne Milgram: And yes, could Trump fire her on some pretextual basis to get out of that? I guess the answer’s yes, but this is where I think the president has to be held accountable. This is a very clear law that shows the chain of succession. The president can nominate whoever he wants. This is about who’s acting, and the president doesn’t want to do it because he’s consistently leaving people in acting positions, thwarting the will of Congress and Congress’s ability to basically advise and consent on the people who are nominated. And so here, it really does matter that the President be, in my view, required to follow the law and that if he does not, that there be litigation and legal action that’s taken.
Anne Milgram: Again, it’s sort of, if you have a statute on the books and the president does not follow it, Congress needs to step up. Because the ability of Congress to advise and consent, that’s part of the checks and balances, and without that, there’s literally no check on the president to just put in whoever he wants and to put in political folks who do his bidding without any balance and the ability of Congress to look at that.
Preet Bharara: So can we end talking about a case that confuses me deeply? And it’s the case of the American rapper A$AP Rocky-
Anne Milgram: Yes.
Preet Bharara: -who was, as we discussed recently, was in custody in Sweden pending trial on, I guess, assault charges. I didn’t take the class on Swedish law when I was in law school. Maybe you took it.
Anne Milgram: I did not.
Preet Bharara: But in any event, he’s back on his way to the United States and that fact was announced by…
Anne Milgram: Donald Trump.
Preet Bharara: Donald Trump. Can you read it?
Anne Milgram: On August 2nd, @realdonaldtrump tweeted, “A$AP Rocky released from prison and on his way to the United States from Sweden. It was a rocky week. Get home ASAP A$AP!” Yeah.
Preet Bharara: Oh, I see what he did there. And he actually got the dollar sign right.
Anne Milgram: Yeah, so he says, “ASAP,” A-S-A-P, all caps, and then, “A$AP,” as in, A-dollar sign-A-P, exclamation point. Yeah. There’s so much that’s unusual about this, and your point is well taken. This is unusual because he was incarcerated through his trial. He was released. The verdict is coming out on August-
Preet Bharara: There’s no verdict yet.
Anne Milgram: Exactly.
Preet Bharara: So they had the guy… I just don’t get it, and maybe Swedish law experts can write in and explain this to us, and I didn’t research it myself. Ordinarily, you keep someone in custody because they’re a risk of flight or danger to the community and presumably, they thought maybe he was a risk. And then you have the trial, and then you would presumably keep the person in custody if that was important until you know the sentence. But the reporting suggests, but even if he’s found guilty, there may be no prison time. In which case, I don’t understand why he was in custody in the first place.
Preet Bharara: We had a general policy and rule, even though the law didn’t require it, that if you thought somebody was not… if we arrested somebody, and that person was not likely to get a prison sentence ultimately because of the nature of the crime, we probably wouldn’t and shouldn’t argue for detention pending trial. because the penalty for simply not being able to make a significant bail posting was inconsistent with justice because, at the end of day, you wouldn’t get any time anyway. So why would you have a pretrial penalty of incarceration if the crime, ultimately, wouldn’t cause a sentence of incarceration?
Anne Milgram: Well, what’s interesting here-
Preet Bharara: It seems unfair.
Anne Milgram: And I agree with your analysis of how you should look at detention and that, but what’s interesting here is that the Swedish prosecutor, in his closing statement, asked that Rocky be convicted and given a six-month prison sentence and kept in custody pending a verdict, which the court did not do. And so what that says to me is not that they initially thought that they had insufficient evidence to convict. It says to me that they believed that incarceration was the correct outcome of a conviction, that they would ask the judge to incarcerate him. But what it says to me is that the evidence at trial may not have been what the government expected it to been or is sufficient as the government thought or that this is, in some ways, potentially a political decision by the court to say, “We’re going to release you because even if we convict you, we’re not going to incarcerate you.” But any way you look at it, it is unusual and it is definitely not the normal case.
Anne Milgram: One thing though that I think is also really worth pointing out about our government is that it’s very clear that the United States warned Sweden of negative consequences is A$AP Rocky wasn’t released. And there are two letters that the Swedish prosecutors released where the US government warned Sweden of “negative consequences,” as it advocated for A$AP Rocky getting out. It basically says that if this case isn’t resolved quickly, there are potentially negative consequences to the US-Swedish bilateral relationship.
Anne Milgram: Again, the government of the United States putting their thumb on the scale, and we’ve talked about many instances in which the government… and it is a fantastic thing that the US government gets involved abroad, particularly in countries where there’s no rule of law… it is a strange thing in a place like Sweden where there’s clearly rule of law and a process. And the laws of Sweden were being applied, and Sweden’s response was, once again, “No other prosecutor, not even I, may interfere with a specific case or try to affect the prosecutor responsible.” And that’s what Sweden’s top prosecutor said in really sort of fighting for the independence of the courts and the prosecutors.
Preet Bharara: So let’s see what happens. If he gets a prison sentence, I don’t think A$AP Rocky is heading back to Sweden…
Anne Milgram: Agreed. I agree.
Preet Bharara: … to serve his sentence.
Preet Bharara: We have a few listener questions. Here’s one. This is an email question for listener Alexandra. “Robert Mueller, when asked by Republican congressmen twice, ‘Could Trump be indicted after leaving office?’ Mueller replied ‘yes’ both times. Doesn’t that mean he believes that the charges rise to the level to be charged criminally?”
Preet Bharara: So I wonder what you think, Anne. I know people have pointed out that bit of testimony from the hearing. I don’t actually read it that way. I mean, maybe he thinks that. I do believe that ultimately, even though he didn’t want to say it and bends over backwards not to say it, that the report indicates that the crime of obstruction was committed and that Robert Mueller thinks that. I don’t think he meant to answer the question in the definitive way that the listeners asks in the question. I think he was speaking generally, as a matter of law, given the OLC opinion once you leave office, you can be prosecuted. Whether or not he should be in this case, Mueller did not want to answer.
Anne Milgram: I agree completely. I think he was just addressing, you know, if a president cannot be indicted while in office under the OLC opinion, can he be indicted once he leaves office? Which is a very straightforward question-answer which is yes. And what’s complicating here is that he was asked specifically about could President Trump be indicted, and he said yes. Because any president who is no longer in office can be indicted, but I don’t think he meant to say that in any way as though, “Yes, he should be indicted, and there’s sufficient evidence to charge.”
Preet Bharara: Here’s another question from James in Seattle who says, “I know there’s a lot going on, but I hope Anne and Preet can at least make a comment at some point regarding the Eric Garner case, Barr’s intervention, et cetera. Thanks very much for all you do.” So Anne, you and I have talked about it offline, and I think we have a lot to say about it. As people know, Eric Garner died at the hands of Daniel Pantaleo, who was an NYPD cop, a little over five years ago. The Justice Department made the decision not to charge Officer Pantaleo. He’s been on desk duty for the last five years. There has just concluded an administrative disciplinary proceeding with respect to the officer. The administrative law judge has made the determination that the officer should be fired, and now it’s in the hands of the Police Commissioner Jimmy O’Neill. I think we’ll be talking about it once we see what the Police Commissioner does with respect to that case.
Anne Milgram: Yes. There’s so much to talk about when it comes to Garner. And just to sort of point out all the different areas, I mean, first is the police use of force, and we’ve consistently seen incidents throughout the United States over the past 5, 10 years where we’ve been seeing individuals who are killed at the hands of officers, and so that’s a conversation.
Anne Milgram: There’s a separate conversation about the Department of Justice and the actual split between the main Department of Justice and the Eastern District of New York during the Obama Administration, as well as the recent decision by the Department of Justice not to prosecute. Then there’s a conversation, which is a whole separate conversation, about officer discipline and how to think about officer discipline and what’s happening here and why it took so long.
Anne Milgram: And then, of course, the ultimate conclusion of whether Pantaleo will be fired or not. And so I think this will take us time to cover, and I’m looking forward to talking about all those areas of this issue with you.
Preet Bharara: So that’s all the time we have for today for the CAFE Insider. We’ll be back next Monday, so send us your questions to email@example.com.
Anne Milgram: And we’ll do our best to answer them.
Preet Bharara: This is the CAFE Insider podcast. Your hosts are Preet Bharara and Anne Milgram. The executive director 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 community.
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