CAFE Insider Transcript 06/24: “Unsafe, Unsanitary, Untenable”

CAFE Insider Transcript 06/24: “Unsafe, Unsanitary, Untenable”

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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:              How are you Anne?

Anne Milgram:             Good morning. How are you doing?

Preet Bharara:              I’m okay. We have a lot going on in the world.

Anne Milgram:             We do. And it’s summer, officially. The summer solstice was last week, that thing where it officially becomes summer.

Preet Bharara:              The longest day of the year.

Anne Milgram:             The longest day of the year. Most sunshine.

Preet Bharara:              [crosstalk 00:00:23] seems like every day, except Mondays when we record the CAFE Insider. This goes by very quickly.

Anne Milgram:             I agree.

Preet Bharara:              All right. So a lot of stuff.

Anne Milgram:             A big week for the Democratic presidential contenders.

Preet Bharara:              I think there’s two nights, 4,000 per night.

Anne Milgram:             It feels very strange to me, because the split between the two Wednesday night is basically Senator Warren, Elizabeth Warren and Massachusetts senator Booker of New Jersey, Amy Klobuchar of Minnesota, Beto O’Rourke of Texas. And then a whole bunch of people who, I can’t forget mayor Bill de Blasio of New York City. A lot of the folks who-

Preet Bharara:              I can forget that.

Anne Milgram:             A lot of folks who’ve gotten a lot less media time. And then the second group on Thursday is former vice president Biden, Senator Bernie Sanders of Vermont, Senator Harris of California. Mayor Pete. And so I think the second one is actually going to turn out, I may be totally wrong in this, but it looks to me weighted with a lot more … I know they said they weren’t going to do this, but it looks to me like a heavier group of the folks who are the real contenders in the second night.

Preet Bharara:              I think that’s right. Will you be watching both nights?

Anne Milgram:             Yes, of course.

Preet Bharara:              You will?

Anne Milgram:             Yeah.

Preet Bharara:              Because you’re a good American?

Anne Milgram:             And I’m really curious to see how they answer really important questions and how they confront and deal with one another where there are differences of opinion. And there are some policy differences. So I am very interested to see the debates.

Preet Bharara:              All right.

Anne Milgram:             How about you? Are you going to watch?

Preet Bharara:              I am. I watched all the republican debates last time around. So we have a bunch of things to talk about whether or not the presidential candidates do. We have this whole controversy about the DOJ argument in the Ninth Circuit Court of Appeals, about the treatment of kids held in detention, which is getting a lot of attention and it should. And I think it’s an abomination is I know you do cause we’ve talked about it.

Preet Bharara:              Then we have this business about Paul Manafort not going to Rikers Island because the deputy attorney general intervened. We had Hope Hicks testifying but not really testifying. So there’s a lot of things going on. First let’s talk about this controversial court case.

Speaker 4:                    Welcome to the ninth circuit. We only have one case on the calendar this afternoon, Flores v Barr.

Preet Bharara:              So it’s called Flores v Barr, and it arises out of a settlement agreement in which the US government agreed to certain standards of treatment for unaccompanied minors who are held in essentially immigration detention. And the reason everyone is talking about it is a lawyer for the Justice Department named Sarah Fabian argue to a panel of ninth circuit judges. Remember those are appellate judges. Just one step below the supreme court. Because the government, meaning the DOJ, appealed the district court ruling that children held in custody at these detention centers should be afforded a bare minimum conditions that satisfy the requirement of “safe and sanitary.”

Preet Bharara:              And some of the things that are in contention about whether or not they should be provided are things like soap and toothbrushes. And the district court judge ruling in favor of the plaintiffs, meaning the children, said in the ruling, “The agreement certainly makes no mention of the words, soap, towels, showers, dry clothing, or toothbrushes. Nevertheless, the court finds that these hygiene products fall within the rubric of the agreement’s language requiring safe and sanitary conditions, and defendant’s own established standards.” And the government lawyer, our government, put forward a lawyer to say no.

Anne Milgram:             A senior lawyer, it’s worth noting. She’s a special litigation counsel, which is someone who’s been promoted and would be one of a handful of folks who are senior litigators in whatever section she’s in.

Preet Bharara:              And she took the position that many people have seen, and we’ll talk about why that is because in most cases there are no cameras in the courtroom, in federal courtrooms at least. There never was when I was US attorney or an assistant US attorney, is that she took the position that the agreement does not require things like soap, toothbrushes, beds even, as some of these children are sleeping on floors. What did you make of the argument?

Anne Milgram:             So just to step back on Flores for a minute, because I think it’s so important to understand that a couple of things, which is that there are a large number of children. Amnesty International recently released a report saying that 8,000 families had separations. So there are a lot of children since the Trump administration began who’ve been separated from their parents. And there are still separations happening today. So it’s really important to understand this isn’t just about a case a year ago that’s now come up to the circuit. This is about something that continues to be a really critical issue. There are 700 kids that have been separated since the administration said last summer that they would stop separations. And in my view, those separations, the ones that are taking place, are unlawful and unconstitutional. So there are a lot of issues here.

Anne Milgram:             Putting that aside just for a second, and I think we should touch on a little bit more related to that in a minute. But the Flores settlement basically says that the children must be housed in facilities that meet certain standards including state standards for housing and care of dependent children. It gives licensing authority so all the programs have to be licensed. And then basically, it’s required that the miners are in the least restrictive settings. And you said it, safe and sanitary facilities, toilets and sinks, drinking water and food, medical assistance, temperature control, supervision, and contact with family members among other requirements.

Anne Milgram:             And what the lawyer was saying was that she want to get into or have, at least at first blush, I think she was starting to say, “I don’t want to get into what that list is. The government doesn’t see this as part of our list.” And by the way, you’re supposed to look at it in the totality of circumstances. So it’s not just is there a toothbrush. She was trying to basically argue it’s everything put together. It is the most absurd legal argument I have seen. I don’t know how she made it with a straight face. I actually don’t know how she made it.

Preet Bharara:              It’s shocking-

Anne Milgram:             Frankly. Yeah.

Sarah Fabian:                … safe and sanitary conditions is one thing, but the ultimate conclusion is safe and sanitary is a singular category in the agreement. One has to assume left that way and not enumerated by the parties because either the parties couldn’t reach agreement on how to enumerate that or that it was left to the agencies to determine really-

Speaker 4:                    [inaudible 00:06:50] or, it was relatively obvious. And it’s at least obvious enough so that if you’re putting-

Anne Milgram:             It’s really reprehensible in my view. And we should talk a little bit about what the administration is doing. Because when you and I mean, both of us, you did an investigation into Rikers, the jail facility, which we’ll probably talk about in a minute when we start talking about Paul Manafort. But I spent a lot of time in federal and state jails and prisons. There, everybody gets a toothbrush, right? Everybody gets a clean change of clothes. When you look at prisoners of war by the Geneva Convention, they get toothbrushes, they get clean clothes. So what our United States government is basically saying is that children who’ve come with their parents seeking asylum are not entitled to basic human rights.

Preet Bharara:              There’s a couple of things here, right? So on one level, the average person listens to the argument and says, “Well, that seems to violate everything that I think is good, and right, and proper.” And you think about your own kids, and you think about what common sense dictates. And most people don’t know about the Flores settlement nor should they know about the Flores settlement. But they think the way that proper human beings treat children is a certain way. And that includes making sure they’re able to sleep and have toothbrushes, etc. But I want to think about this as a lawyer also. So obviously that’s the most important thing. As a lawyer, you’re sending one of your people. You were the attorney general, I was a US attorney. And I had people in my civil division who might have argued things like this. You have to defend your client, in this case as DHS.

Anne Milgram:             Yeah. It’s worth noting that the local US attorney’s offices, they represent the Department of Homeland Security, and they’re in the position of defending the United States.

Preet Bharara:              Right. But here it’s not a US attorney’s office. It’s being done out of Washington.

Anne Milgram:             Yes. It’s done out of main justice, but all the federal prosecutors essentially represent the federal government. What’s really interesting here is it’s not just them representing the federal government, it’s them appealing from the decision of the lower court said. Which said no, there are not safe and sanitary conditions here. And the government, instead of accepting that and changing their practice, they decided, “You know what? We’re going to appeal this.”

Preet Bharara:              Right. So separate from a humanitarian issue, as a legal strategy, as litigation strategy, you’re sending your lawyer in to make this argument in front of a panel that’s a fairly, people like to say ninth circuit is generally liberal. These are all three Clinton appointees. And you know that the public is going to see this argument you’re making. And if you’re thinking rationally at all, that it’s really going to piss off these judges. Because it’s kind of an insane argument to make. So as a litigation strategy, when you have other issues that are before them and you have other cases that you may want to appeal and talk about, you’re putting your weakest foot forward. And credibility is important in leadership, but it’s also important for a litigator to go before a court. And as we saw from the clips, and people should watch them. If you haven’t, every single one of the members of that court panel were if not enraged, then shocked by the argument being made. And that should have been I think predicted before she went in.

Anne Milgram:             Yeah. There’s no question about it. And I think there’s a number of layers of legal questions we could be asking. The first is whether the government should have even litigated the original case in the district court. Which is to say that look, there are basic minimum standards of human decency that are not being complied with. The government should do that. And I want to talk a little bit maybe in a minute about why I think the government isn’t doing that. But they should have agreed to that.

Anne Milgram:             But even if they didn’t at that first cut, once the judge basically said, “Nope, you’re wrong. You got to change.” The judgment to take that appeal, which you are clearly going to lose in my view. And you clearly should lose based on the language, the clear language of the settlement. It doesn’t make a lot of sense to me. There’s obviously politics in all of this, but they sent a lawyer in, and she changed her story a little as you’re watching it. She’s deeply uncomfortable. And I find it fascinating. One of the three judges was actually, he was in a Japanese internment camp as a young child, and he was the first Japanese American federal appellate judge.

Speaker 5:                    It’s within everybody’s common understanding that if you don’t have a toothbrush, if you don’t have soap, if you don’t have a blanket, it’s not safe and sanitary. Wouldn’t everybody agree to that? Do you agree with that?

Sarah Fabian:                I think there’s fair reason to find that those things may be part of safety.

Speaker 5:                    Not maybe, are apart. Why do you say maybe? You mean there are circumstances where a person doesn’t need to have a toothbrush, toothpaste, and soap for days?

Sarah Fabian:                Well, I think in CBP custody, it’s frequently intended to be much shorter terms. So it may be that-

Anne Milgram:             So she’s walking in, she knows she’s walking in. She’s going to be up against a lot of very tough questioning, and she can’t do it. They’re saying to her, “You personally, are you telling me that you don’t think that basic safety and sanitary conditions require things like toothbrushes?”

Preet Bharara:              It’s unclear to me whether she had a hard time of it because she’s not a good oral advocate, or because she knew she had no argument, or she was uncomfortable making the argument.

Anne Milgram:             Or all of the above.

Preet Bharara:              Or all of the above. Just also by the way, I watched the argument and I thought about it. And it seems shocking to me and I’ve used that word a bunch of times already. But I also look to do a gut check, and I think careful citizens and lawyers should always do that and think to yourself, “Well what am I missing? Is there some argument in favor of the DOJ position here that I’m just not aware of and is alluding me?” And my initial gut was that if someone in my office were being asked to make this argument on behalf of the client when I was a US attorney, I don’t think there’s any civil division assistant US attorney in my office who would have agreed to stand up and make that argument.

Preet Bharara:              And if someone had agreed to stand up and make that argument, I would have told them, “We’re not doing that.” And we wouldn’t have signed the brief. And there were times during my tenure as US attorney that we sometimes had a disagreement and we would take our name off a brief, and we would not make a particular argument. Some people can call it that defiance, I call it exercising your own conscience. But I did a gut check. I talked to other folks.

Anne Milgram:             Former prosecutors.

Preet Bharara:              Former prosecutors who I worked with in our civil division. And they had the same reaction. That if it had fallen to us to make that argument, we just wouldn’t have made it. And so that gets to another question that people have been raising and that is what was the proper role for an individual attorney at DOJ, Sarah Fabian, and how much blame should be placed on her? Was she just doing her job?

Preet Bharara:              On the one hand, she’s not the only person who can be blamed for making the argument. Obviously it was vetted. Obviously it’s a position of the department. As often happens in these cases, she had to have been mooted, meaning she did practice sessions of argument with supervisors in the office. Maybe it went fairly high up in the Justice Department. It’s a very sensitive case and a lot of people are looking at it.

Preet Bharara:              So the department as a whole has a responsibility to make only worthwhile and humane, and moral arguments, and legal arguments. But then what was the role she plays, and how do you think about her decision to go forward?

Anne Milgram:             I think it’s an important conversation for us to have because my view is that the way society treats its children is really illustrative of how government works, and that we’re failing miserably here as a country. And I think that if all of us sit at home and think about, you read a book about the civil rights movement and you think, “I would’ve been with Martin Luther King on that side,” you’d like to think about how you would have responded in times of crisis in turmoil like this. And I feel like we’re missing the point that we’re actually in one of those times right now. Countries and governments that use children and harm children to punish adults to me are not countries that we want to be a part of. So I personally feel very, very strongly about this, and I think there’s no question in my mind I wouldn’t have done it. I wouldn’t have let or asked any of the lawyers who work for me to do it.

Anne Milgram:             The one thing I will say though is that, so I do fault her personally with doing it. I think she shouldn’t have done it. But, I agree really strongly with your comment that there are a lot of people in this. And I think it’s a mistake to see it as this is Sarah Fabian’s decision. This isn’t Sarah Fabian’s decision. This is Donald Trump’s decision. This is his head of the Department of Homeland Security. This is the head of Customs and Border Patrol. And so she is an arm. The Department of Justice is being an arm of those political wishes. And she went along with it. And I think all of us have to account for in this moment, whether we go along with this or whether we stop it. So I think she’s accountable, but I also think that it’s just easy because we saw her on TV. The argument is so outrageous. It’s easy just to point all of our vitriol at her. But she’s one small piece of a much bigger pie that we need to stay focused on.

Anne Milgram:             And I think one of the things I would raise is that there’s a real conversation that’s happening here, and I haven’t seen it in the media very much. But there’s something that the Customs and Border Patrol have been doing for a long time, which is this 100 mile zone. And what that means is that the way CBP sees it is that the constitution essentially doesn’t apply, that the rules are different, that there’s expanded powers for Customs and Border Patrol within 100 miles of the borders of the United States. And that applies to when people are seeking asylum. That applies to search and seizure rights, to length of detention. And there are real questions in my view that the administration is pushing based on this argument that the same rules do not apply in those territories for people who are not lawfully in the United States, that apply in the rest of the country.

Anne Milgram:             And all that people could sit at home and say, “Well what does it matter?” I’m not crossing the border in Mexico. But 100 miles from the border is literally two thirds of all the people in the United States. That’s 200 million people. So if we start to think about this, and I’m just putting this out there, if this is one of the first steps of how totalitarian regimes treat children and families and start to strip away rights, it’s not just a question of people crossing the border. It is today people coming seeking lawful asylum. It’s a question of within 100 miles, that’s a lot of people and a lot of distance.

Anne Milgram:             So what worries me about this fight on Flores, in Flores, the US government agreed, we’ll follow any state detention rules, right? Any state that has foster care rules or child protection rules, we’ll follow them. So the US government has agreed to that. Now they’re walking into a court and basically saying, “We want to make that as narrow as possible.” They’re supposed to hold kids for 20 days. They’re holding them for way more than 20 days. They’re breaking all the rules, and they’re going to argue that either the rules don’t apply or that they’re coming up with, I think specious, with really unfounded legal arguments to try to justify conduct that you and I would sit there and say, “How is that possibly not violate the laws?”

Preet Bharara:              And I don’t even get why. There’s the moral reason that it makes no sense. There’s the legal argument that is specious and terrible. And then there’s the pragmatic argument? What does it get you? You’re going to have defeat after defeat handed to you. Maybe they’re thinking it’ll go up to the supreme court and we’ll have a favorable supreme court. But-

Anne Milgram:             But Flores is a weird case even to do that on because signed a settlement. So I agree with you. This is a very odd example.

Preet Bharara:              Look, I tend to start to believe the argument that some people make and that the cruelty is the point. You’d like to think that no one is being intentionally cruel. They’re just maybe being dumb about how they’re engaging in their policies. But at some point you have no choice but to believe that the cruelty is the point. And you want the message to go forth to Central America and other places that if you come with a child, they will be if not abused, then completely neglected and not given basic elements to live a safe and sanitary existence while they’re held on concrete floors with no beds and aluminum blankets, in US custody. And that seems to me to be a terrible policy, not just a terrible legal argument.

Anne Milgram:             So I have two other questions for you. One is there’s this whole thing that the administration is also saying. And the overcrowding is extraordinary. There’s one facility that was just reported on that is made for 35 children, and it has something like 150, over 150 kids in it. And there are kids not able to lay down to go to sleep. It’s really horrifying. And what the administration keeps saying is, “We don’t have enough money, give us more money.” That strikes me as completely impossible. Right? When they needed billions of dollars to build a wall, they took the billions of dollars to build a wall out of the army budget, out of all these other-

Preet Bharara:              The idea that they don’t have the money is ridiculous. And by the way, on top of that, you have this policy that is formulated, agreed upon at the highest levels of the Justice Department. It must be true. Then you have Mike Pence when confronted with it on state of the union, on CNN with Jake Tapper yesterday. In the face of this obviously absurd argument when Jake tapper says …

Jake Tapper:                 “Aren’t toothbrushes and blankets, and medicine basic conditions for kids? Aren’t they a part of how the United States of America, the Trump administration treats children?”

Mike Pence:                  Well, of course they are, Jake.

Jake Tapper:                 The lawyer was arguing the opposite.

Mike Pence:                  I can’t speak to what that lawyer was saying. It’s one of the reasons we asked for more bed space. When we were negotiating with congress, no. When we were negotiating during the government shutdown. Democrats in Congress refuse to expand the bed space and the capacity for us to detain people-

Jake Tapper:                 But this is going on right now.

Mike Pence:                  Borders. It’s one of the reasons why we continue to call on Congress to give DHS, Customs and Border Protection, additional resources at the border.

Jake Tapper:                 This is the wealthiest nation in the world. We have money to give toothpaste and blankets-

Preet Bharara:              Of course they do. Well then why the hell aren’t you making it happen? Now, you’re the vice president United States of America. And he then disavows lawyers. “I can’t speak to what that lawyer said.” Well, the lawyer is implementing the policies that the Justice Department has approved. And that by the way, Stephen Miller advocates with great, great, great force and strident in the White House and outside the White House.

Anne Milgram:             So do you think, is it a political strong arm to get a deal on immigration? That feels to me impossible as well. But-

Preet Bharara:              I don’t know because this is all by the way happening in the shadow of this other reality television ploy that Donald Trump engaged in. There’s the business with Iran, which we don’t have to talk about. But then there’s also this idea that he has said they’re going to be these ICE raids. And millions of people are going to get deported. And there’s a lot of outcry about that. And then he announces over the weekend, “Well, I’m calling those off to force a better resolution on immigration comprehensively over the next couple of weeks.” So I don’t know, maybe you’re right.

Anne Milgram:             I don’t know. I had this moment when he said he would delay those rates for two weeks to get the Democrats to agree with Republicans to immigration reform. It almost felt to me for a moment, and I’m not sure this is right, the president is playing a game of chess with children as the pawns.

Anne Milgram:             The other question I have is I just don’t understand why there are not congressional hearings every single day on this. I don’t understand how Mike pence can go on a national TV show and basically be untruthful about what kids actually have.

Anne Milgram:             And by the way, let me just say one other thing which I think people don’t fully understand, which is that there are a large number of kids in custody who do not have attorneys representing them. And the providers sign confidentiality agreements with the United States government. And what that means is they’re not able to talk about the conditions. They’re not able to sign the alarm. The only reason this is coming out is that the Flores settlement allows the plaintiffs, the people who had sued, to say that the US government wasn’t providing fair conditions to children. Those folks get the ability to inspect facilities that are housing kids. So that’s why we’re here.

Anne Milgram:             There are a whole group of kids who literally have no one advocating for them. It’s astonishing to me why of the AG is not sued, why the governors of the states where we know kids are being held, not stepped in. And again, courts aren’t the full answer. Congress could be doing a lot more.

Preet Bharara:              I agree. Congress should be doing a lot more. And these are in some ways simpler and more forceful hearings to have than the matters relating to the Mueller report. By the way, the other reason that we’re talking about this, and we might have been otherwise had there only been a cold transcript, but we have video. And it just goes again to this point that by the way, the president understands very, very well that when you see testimony, or you see arguments, or you see a police shooting, or you see a lawyer in court, and you see it, and you hear it, and you watch their face and you see their body language. And you can play the clip and it can be on social media. That has a lot more power and force and persuasive ability than just reading something on a cold page.

Preet Bharara:              You can imagine that all the same arguments were being made and they were just a transcript. And yeah, reporters would have talked about them. There would have been New York Times articles about them, but it wouldn’t have penetrated in the same way. And so we should explain to people who have watched court TV over the years and remember the OJ Simpson trial. Yeah. There are cameras in the courtroom in lots and lots of state jurisdictions. In federal court, essentially there’s no cameras in the courtroom.

Preet Bharara:              This week on the Stay Tuned podcast, our mutual friend Rachel [Barco 00:23:39] from NYU law school where we also teach, is a guest on the show. And I agree with her on a lot of things. One thing that we on was whether or not it’s a good idea to have cameras in the courtroom. Does it distort people’s arguments? Do they play to the cameras, particularly in the Supreme Court? Here’s an example of a case where it actually did a public service.

Anne Milgram:             I think there should be cameras in courtrooms. I think more transparency is the right direction to go to. When you look at whether it’s the criminal justice system or the civil legal system, people don’t understand in the vast majority of times what’s happening in cases. How the system works. And I personally am a huge fan of more transparency. And you know what? The argument that people will act differently in front of the cameras is yeah, first. And like anything else, those fears and those theatricals will largely go away. And in the high profile cases, judges may have to put some restrictions on it to make sure that the courtroom runs smoothly. Because the number one point is making sure that whatever case is being tried gets a fair … yeah. So that trumps everything of course.

Anne Milgram:             But beyond that, to me, this was just a fantastic example of the importance in democracy of understanding how all the institutions of government work. And frankly, I wish more people understood it. I think there’d be more and better reforms of how these systems work.

Preet Bharara:              Look, there’s always the possibility of distortion and people may play the cameras. But by the way, I’m not sure why that one branch of government, the judiciary, federal branch of government deserves so much more cloaking than the others. That same argument can be made about C-SPAN in the senate and the house. And I understand that that’s politics, and there is some amount of mugging for the camera there also.

Anne Milgram:             And their ratings are not off the chart.

Preet Bharara:              They’re not off the charts. But I think you have to trust the American people to understand what it is they’re seeing and have more of it, not less of it. And to answer the question that people are probably asking themselves, “Well why the hell were there cameras in this courtroom?” So the reason we have cameras in the ninth circuit is it became some years ago, the first circuit court in the country, federal circuit court in the country, to decide to stream arguments of its most significant cases. And based on what we see in this case, I think there should be more of it. Now the supreme court for some time has released audio, and that actually has some power and some educational benefits too.

Anne Milgram:             To me that’s the bare minimum that courts should be doing. Because when you get the audio, again, you’re able to hear the nuances of the argument. It just brings it to life in a way that reading a transcript doesn’t.

Speaker 4:                    The testimony that the district judge believed was it’s really cold, in fact it gets colder when we complain about it as being cold. We’re forced to sleep crowded with the lights on all night long. And all you do put us on the concrete floor with an aluminum blanket. I understand that some outer boundary, there may be some definitional difficulty. But no one would argue that this is safe and sanitary, or at least I don’t think you’re arguing that. Are you?

Sarah Fabian:                Your honor, I think what I’m arguing is that-

Preet Bharara:              But there’s another part of that, right? It’s not just that it brings it to life.

Anne Milgram:             It makes it accessible in a way that’s not-

Preet Bharara:              More people. Yeah. More people are inclined to listen and watch than are inclined to read. That’s true of the Mueller report. It’s true of a lot of different things. So if the idea is only some subset of elite folks who have a lot of leisure time and are subscribed to papers and periodicals that are behind a pay wall or have a particular degree, you only want them to understand what’s going on with the special counsel’s investigation or Supreme Court or circuit court. Then fine. But if you want more people in America to see and hear what’s going on, then you need to have video and audio of more things.

Anne Milgram:             I agree.

Mike Pence:                  Here’s the hard fact. As I say, I’ll answer your question.

Jake Tapper:                 I just want to read this quote. “This conditions the lawyer’s found were shocking. Flu and lice outbreaks were going untreated. Children were filthy, sleeping on cold floors, taking care of each other because of the lack of attention from guards.” I know you. You’re a father, you’re a man of faith. You can’t approve of that.

Mike Pence:                  Well, no American. No American should approve of this mass influx of people coming across our border. It is overwhelming our system.

Jake Tapper:                 How about how we are treating these children?

Anne Milgram:             Switching from the ninth circuit in California to closer to home in New York City, there’s been a lot of conversation about the Department of Justice request to have Paul Manafort not housed in Rikers Island while he’s awaiting state charges. And just to go back and recap, Manafort was convicted at a trial in the eastern district of Virginia. Then pleaded guilty to other charges pending in Washington DC. He was sentenced to seven and a half years on those federal crimes, and placed in the federal correctional institute at Loretto, which is a low security prison in Pennsylvania. He was literally the same day as his second sentencing. And in the Washington DC crimes, he was indicted by … and indictment was announced by the Manhattan District Attorney’s Office on state charges.

Anne Milgram:             So this brings up a host of issues and questions. And in the normal course, what would happen is Manafort would have been sent into state custody and into detention where everyone who’s waiting for charges to be heard in front of a court, a trial in Manhattan would wait, which is Rikers island. And that was looking like it was going to be what happened here. And then it got changed. So-

Preet Bharara:              A couple of reactions to this. First, Rikers Island is a terrible place, and nobody wants to go there. And I get that. Second, it is not crazy to me that Paul Manafort’s lawyer would seek some accommodation. By the way, his lawyer is Todd Blanche who used to work for me in the US attorney’s office. He’s a very good lawyer and a smart guy, and is representing the best interest of his client. And it’s further not crazy to me that the lawyer would make the suggestion because although in the ordinary course, you come as a defendant and sit incarcerated in the jurisdiction where you’re going to be facing trial. The trial in the state case, in the Manhattan DA’s case probably won’t be for many months if not a year or more. And the reasonable position of the lawyer is, “Well, why can’t he just remain where he is? And then from time to time when he has to come for a pretrial conference, he can be shipped in. And then we can see about what happens during the actual trial. And maybe he can be housed somewhere near where the trial is going to be. But there’s not really a need to bring him to a tough facility so far in advance.” I get all that.

Preet Bharara:              The weird thing here is that there seems to have been an exchange between the bureau of prisons and Manafort’s lawyer. But then there was an intervention that’s completely peculiar on the part of Jeffrey Rose and the deputy attorney general who put in a letter to Cy Vance’s office, the Manhattan DA’s office, essentially saying, “What’s your position on that?” And putting a bit of a thumb on the scale. And obviously Cy Vance as you know doesn’t have to do anything that the Department of Justice tells him to do.

Preet Bharara:              But that’s unusual. I’m not aware of any other case where something like that happens. And as people have pointed out, and I agree with this, this analysis. That in most cases when prosecutors in my office were asked whether or not they could cause someone to be incarcerated somewhere different or closer to home or whatever else, we always said that is up to the Bureau of Prisons. The Bureau of Prisons is within the Justice Department, but they have their own autonomous way of deciding things. Prosecutors have very little ability. Judges have very little ability to sway their decision making. That’s their own internal decision making process. And we defer to them for right or wrong.

Anne Milgram:             Did you ever make a recommendation? There were times where at the Department of Justice-

Preet Bharara:              We wouldn’t object. We wouldn’t object.

Anne Milgram:             We would be asked to say make a recommendation that somebody be housed in a facility close to where their family was locate. And we either wouldn’t object or we would say we would be supportive to the extent the Bureau of Prison agrees.

Preet Bharara:              Correct. I never once opposed that. But you would have sometimes lawyers getting up in court and saying, “Could the US Attorney’s Office direct X or Y?” And we were very careful to say, “We can’t direct anybody.” And if you ever tried to call the BOP to get them to do something, they would say, “We take it under advisement.” Generally speaking.

Anne Milgram:             And BOP is a part of the Department of Justice, but it’s a separate part. And I think it’s important for folks to understand, they make this determination based on a number of things including safety and security, location to family, and a bunch of staff when they figure out where people go.

Preet Bharara:              Yeah. And so Paul Manafort is not uniquely situated in that he has been charged in a federal court and then also charged in the state court. It happens all the time. It happens in the other direction also.

Preet Bharara:              The thing I’m more familiar with is when someone’s prosecuted in the state court on crime X and then we end up charging them on crime Y. They would probably be ridden in from the state facility, whether it’s Rikers or somewhere else, into the BOP in the other direction.

Anne Milgram:             And then they would stay there?

Preet Bharara:              And then they would stay there. Or something could be worked at. It depends on what the overcrowding situation is and everything else. But the weird thing about this is why is the second most high ranking person in the entire department of justice weighing in on this?

Anne Milgram:             I think that’s important that he’s the number two person, which means he oversees not just the federal prosecutors and US attorneys. He also oversees the Bureau of Prisons. And so it’s like a super high level person saying we want to know if you’re okay with this. This is what has been asked for.

Anne Milgram:             Here’s the thing that makes no sense to me about this. And there’s also a back and forth of whether Manafort’s lawyer was truthful. They’d gone to Cy Vance early on and basically said, “Look, he’s not in a great state of mind. Can we waive figuring out these questions now where he’s going to be housed? Let him be where he is.” And Cy Vance’s office agreed and said, “Yes, but you need to waive any fight over US getting custody of him down the road,” which is important. And then of course they immediately, Manafort’s lawyer immediately turns around and goes to BOP and says, “Hey, can we change the way where he’s housed?”

Anne Milgram:             So it feels a little icky, I guess is the way to say it. But here’s the part I really don’t understand. And there is this whole question of why Rosen is involved. And in my view, he shouldn’t be involved. Here’s what’s so bizarre about it is that Cy Vance doesn’t object. And so it’s like why didn’t matter for his lawyer just call him up front and basically say, “Look, what’s your position on where he’s housed? Would you consider letting him be at FCI, Loretto?” And if the answer’s no, the answer’s no. But-

Preet Bharara:              I feel like there was some letter writing problem and a letter was sent. And Manafort’s lawyer Cy Vance on the letter.

Anne Milgram:             The letter that goes to the BOP saying, “We would like you under this interstate detention agreement that exists,” and generally controls and says that the defendant has 30 days to basically object to their placement. And so on.

Anne Milgram:             Manafort’s lawyer writes to the BOP folks and says, “Hey, let him stay at the Federal Correctional Institution where he is.” And puts a CC to Cy Vance, but never sends fans the letter. According to Vance, he never got it. Maybe it’s an oversight. Maybe it’s intentional. It certainly feels a little bit strange. But again, Vance then writes back and says, “Look, I don’t have an objection.” And then he says also by the way, this isn’t how it’s done. This isn’t a process that’s supposed to be followed.

Preet Bharara:              You should be very careful about making it look like particular people in the process are getting a certain kind of preferential treatment. It doesn’t look good. It doesn’t give people faith and confidence in the system. And here you got somebody who is closely associated with the president of the United States in the midst of all these questions about how people were being treated and whether or not there’s politicization of the Justice Department. In light of all of that, I would’ve thought if I were the deputy attorney general, I’m not getting involved with this. Even if I cared about it. Even if I wanted to put a thumb on the scale, I would say it’s not worth it to my reputation. It’s not the hugest thing in the world. It’s not worth it to my reputation. It’s not worth it to have people like you and me and others on television and people opining in the op ed pages of the Washington Post and elsewhere about why it happened.

Anne Milgram:             Also, who even got to him? Did this come up from the head of BOP? I doubt it. So the question is who got to Rosen on this? And you’re right, the answer is no, I’m not going to engage on this. This is for BOP, Cy Vance, and Manafort’s lawyers to work out.

Anne Milgram:             It also came the week that they released publicly, there were a number of texts between Paul Manafort and Sean Hannity that were released. And so the level of-

Preet Bharara:              I text with him all the time too.

Anne Milgram:             Which one?

Preet Bharara:              Sean Hannity.

Anne Milgram:             Sean Hannity. Yeah. It feels like the sleazy backdoor stuff that everybody hates, that we want to believe does not happen in government. And then you look at it and you think, well why would Rosen ever make that call? And to your point, my point is he didn’t need to make it. This was easily resolvable. And to your point, I think no good can come of it and it is bad on the law. It is bad on the politics. It is also hard for me to understand how he couldn’t have seen what a problem this would cause.

Preet Bharara:              This is my one last point about Manafort. And less listeners think that we’re very hearing happy. We want hearings about everything. A little bit I do. So there’s all this discussion and debate about what kind of hearing should take place in connection with the Mueller report, and we’ll talk about Hope Hicks in a second. And whether there should be impeachment formally announced with proceedings to inquire further about impeachment and later declare that it’s an impeachment inquiry. There’s lots of other little things. They’re not that little, there are lots of other things that are going on that implicate oversight authority of the house. You mentioned one, very important one. I don’t know why you can’t have routine, important, focused hearings on what’s going on in the border and the position the Justice Department is taking.

Preet Bharara:              And by the way, this other thing with Paul Manafort and why Jeffrey Rosen is getting involved. It might not be the biggest thing in the world, but it goes to this question that people have about the fairness and impartiality of the justice department. Let’s have a hearing about that.

Anne Milgram:             Yeah, there are two reasons why Congress should call Rosen in and find out who got to him. Number one is that it is important if there’s influence being pushed to that level of the Department of Justice from political and other folks, that’s a conversation that needs to happen and it needs happen publicly.

Anne Milgram:             And the second piece is that if Congress does not do hearings, at some point you’re accepting that this is okay practice. And you’re, I don’t want to say they’re stamping it, but you’re letting it go on unchecked. And there is something really important about checking the different branches of government and Congress saying, “Look, we’re watching you. And we think there’s something happened here that shouldn’t have happened and we want to understand why.”

Anne Milgram:             So I think to your point, congress has time. They have a lot of folks who are committed to trying to figure out what’s happening, and they’re spending a lot of time on certain things where there are a number of other things I think are really important for them to do as well.

Preet Bharara:              This may come as a surprise to people. But at the higher levels of government, you want people in those positions to be thinking of themselves as they decide to do something controversial. Or totally appropriate, but may look funny to the public, doesn’t have all the information that it might otherwise have to say. I said this on a couple of occasions that I can’t describe here. I said let’s make sure if it ever comes to it, we are able to explain to the full satisfaction of the public to a congressional committee why we did X or Y. We did Y. And it does, if done properly and within the proper jurisdiction of a particular committee, it has a regulating effect on the people that they had the responsibility to oversee.

Preet Bharara:              So speaking of hearings, Hope Hicks, former staffer to Donald Trump, no longer with the government. Mostly in communications. Was asked to come and testify before the House Judiciary Committee, which she did. She did come testify. She didn’t say much.

Anne Milgram:             Why was it behind closed doors?

Preet Bharara:              I don’t know. Again, I don’t love to second guess how people do what they’re doing, but I think it does seem odd now that it’s been a period of time that there is so much accommodation going on. I think they could’ve made clear that she had to testify publicly. Maybe they thought that by reaching an accommodation-

Anne Milgram:             That she would actually say something?

Preet Bharara:              She would actually say something. And also, on the one hand you’re making a record because you’re ultimately going to court, that you’re being very, very reasonable. And Jerry Nadler has said about this particular undertaking that the strategy went totally according to plan. And the fact that Hope Hicks is taking because the government is telling her to, such a broad stance on immunity and what she can and cannot talk about. They’ve now exposed the breadth and breathtaking overreach of that argument. And then they will now be able to present that to the court. So it’s all wonderful and perfect and that’s exactly what they wanted. What do you think?

Anne Milgram:             So I was surprised by that argument. I thought glass half full. Also, they’re killing me, by house slowly. They’re moving. It’s like, “This month let’s have it be Hope Hicks month. Next month. Let’s have it. And maybe we’ll get back to dom again. This is a really slow way that they’re doing this. And I want to talk about the strategy behind it because I thoroughly disagree. I would issue subpoenas to everyone mentioned in the Mueller report to bring them in.

Preet Bharara:              Pause for a moment. Do you remember, we talked about this. That at the beginning of the session when the house first took power, I mean sorry with the Democrats first took power of the house, Jerry Nadler I think on day one issued something like 82 requests for information. And there are people saying, “Well it’s over broad, and what’s he doing? And it’s premature.” I remember thinking he’s laying down the gauntlet. So I expected a much more-

Anne Milgram:             Rapid fire.

Preet Bharara:              Flurry of activity as would have been evidenced by that first foray.

Anne Milgram:             Particularly once you know you’re going to litigate everything. And everything the administration has made clear since the Mueller report came out in terms of people testifying before Congress is that they’re not going to cooperate. And they’ve taken a very, very hard line on not providing information to Congress. So once you know that, to me you basically say let’s let them say notice 80 times and push it forward to courts.

Anne Milgram:             So on this, there were a number of things that were surprising to me. But I think we should start with the legal argument, which is this idea that Hope Hicks and everyone else who works for the president in the White House has something called absolute immunity.

Preet Bharara:              I always wanted that.

Anne Milgram:             Yeah.

Preet Bharara:              Kind of want absolute immunity.

Anne Milgram:             I don’t think it exists Preet. My read is there’s executive privilege. And that when you work close to the president, that some of those communications can be protected. And by the way, executive privilege doesn’t exist in the constitution. It’s been read into the constitution with the goal of having the executive able to make tough decisions and get advice.

Preet Bharara:              That’s legitimate and appropriate within reason. And every administration of every party has at one time or another, made a claim of executive privilege.

Anne Milgram:             Completely. And completely reasonable, and the right thing. But it has limits and it’s not absolute. And immunity is something you and I are very familiar with and criminal prosecutions, that you can give someone immunity. Meaning we’re not going to use the information you provide against you. Right? So instead of someone invoking their fifth amendment rights saying I’m not going to talk because I’m afraid the information will be used against me, you can say to someone, “Well, I’m going to give you immunity,” meaning you can’t be charged with this crime or you can give broader immunity saying anything related. And that is when immunity happens.

Anne Milgram:             First of all, this isn’t a criminal investigation and she is the absolute right to come in and invoke her fifth amendment right and say, “I’m not going to answer some questions.”

Anne Milgram:             And by the way, it looks like she might have even done so as part of the Mueller investigation and a couple of things where she’s not mentioned in the report in ways that seems strange to me.

Preet Bharara:              There’s a waiver argument there too. In which we have with Don McGahn and others.

Anne Milgram:             There’s a huge wave argument here that she cooperated with Mueller, and there’s 180 instances in which she’s referenced in the report, which is public. So this whole thing, can you just make up … here’s my question for you. You’re a law professor. Can you just make up legal arguments?

Preet Bharara:              You can.

Anne Milgram:             Okay.

Preet Bharara:              But then they should get struck down. As a person that teaches at law school, the same one that you teach at. The esteemed, should we put it in a plug?

Anne Milgram:             New York University School of Law.

Preet Bharara:              Excellent educational establishment. In the case dating from 1974. In which court? The Supreme Court. Involving who? Nixon. Justice Burger wrote, “Neither the doctrine of separation of powers nor the need for confidentiality of high level communications without more, can sustain an absolute unqualified presidential privilege of immunity from judicial process, under all circumstances.” That doesn’t 100% settle the question, but the theme of the holdings of the court have been, there’s not such a thing as absolute immunity in these circumstances.

Anne Milgram:             Because basically what you’d be saying is that anyone who works for the president never has to answer any questions. And by the way, I personally, I don’t credit this argument that because Hope Hicks is of government that she should not have to answer questions. If it is truly executive privilege, if there was a communication … and by the way, executive privilege only applies from when the president was in office as president. It doesn’t apply when she was working on the campaign for him.

Preet Bharara:              Or during transmission.

Anne Milgram:             Or during the transition.

Preet Bharara:              Or since she’s left.

Anne Milgram:             Yes. Right. So those communications are not protected. But the communications, if she did have conversations with the president to give him advice and there’s a deliberation that’s happening that she’s a part of when he was president, that would be protected whether she was asked about it then or she’s asked about it now.

Anne Milgram:             So all the rest of the time that she was with him, that isn’t protected. And by the way, in the testimony, it appears that they actually tried to say that parts of the conversations during the transition, were protected. And so what they’re doing is they’re going and they’re making an incredibly broad argument. They’re saying, “You don’t get anything.” I don’t see a basis for it in the law, but what they’ve done is now throw the ball back into Congress’ court. And Congress does have to go, they do now have to walk into a court of law and say, “Look, this isn’t okay.” The one thing I’ll agree with Nadler is that the administration has made it very clear that they think they have an absolute right to say no to anything. So it’s not a question of they’re giving a little here and there. This is a pretty stark difference between the administration’s view of what information people have to provide and the congressional view.

Preet Bharara:              Yeah. From where I sit right now which is right across from you, is that the administration is getting the better of the house.

Anne Milgram:             I agree.

Preet Bharara:              And I’m reserving judgment for now for a short period, but it seems to me that the house needs to step it up a little bit.

Anne Milgram:             Because once you know that this is what’s going to happen with everybody, it’s again the bully thing. They gave the accommodation to say okay, testify behind closed doors. Probably thinking she was actually going to answer a question. And literally she walked in and answered this is what my name is and a few other things.

Preet Bharara:              She wouldn’t answer where her office was.

Anne Milgram:             Exactly, which is unbelievable. And so once you’re-

Preet Bharara:              Time’s a wasting.

Anne Milgram:             Times a wasting. I would issue subpoenas across the board. I would go back to Nadler’s maybe not 82 but whatever the top 30 things are that they really need or the people that they really believe they need to get in. And then get moving.

Preet Bharara:              We should point out that there are different committees in the house and things are moving in different paces depending on the committee. It also depends on what the judges are saying and what the procedural posture is. So I don’t mean to be obnoxious about the house. With respect to one committee, the committee on government oversight. I think they’re proceeding along pretty quickly with respect to getting financial information from Donald Trump’s accountants. You already have a decision the district court that took the side of the House Committee that’s in the Circuit Court of Appeals. So some of these things may just actually pop relatively soon and maybe the dam will break with respect to some stuff. But we’ll have to see.

Anne Milgram:             That’s a good point. When I look at this as an outsider, what I worry a little bit about is that the leadership in the house, Speaker Pelosi and others are saying, “Well we want to bring the American public with us. So we should go very slowly, and have these very deliberative fights each week.” And I personally think that the only way you’re going to convince people who don’t already see the world the way you do is to have these hearings and have these conversations. And you may or may not convince them, but that’s allowing public opinion to drive too much of what the House representatives does. And if we believe that this is an important inquiry as I do then, they need to in my view, get on with it

Preet Bharara:              Before we go, so we all know now that the Mueller investigation is over. Bob Muller has returned to life as a private citizen and various other members of the Mueller team, the special counsel’s office, are moving on with their lives. One of them who handled, I think all the Manafort matters. Andrew Weissmann, friend of yours, former colleague of yours. Now a colleague of both of ours, also at where?

Anne Milgram:             NYU School of Law.

Preet Bharara:              NYU School of Law.

Anne Milgram:             They’re taking over the-

Preet Bharara:              They’re taking over … there’s a report that he has or is about to have a book deal. I wrote a book recently.

Anne Milgram:             You did.

Preet Bharara:              I don’t know if I’ve mentioned it.

Anne Milgram:             Well you haven’t talked about it in a while actually.

Preet Bharara:              Slips mind to mention it. It’s still available wherever you get your books. But I didn’t talk about a lot of stuff. I didn’t talk about Trump. Everything in my book relates to things that are basically publicly known, publicly available. You would think that a book by Andrew Weissmann would be about his time in the special counsel’s office. And given how tight lipped Bob Muller was and the culture of that office was to be tight lipped and not say anything about anything, you and I both agree that Bob Mueller will probably never do a television interview. He doesn’t even want to testify in front of Congress.

Anne Milgram:             He will definitely never write a book.

Preet Bharara:              So what do you make of this?

Anne Milgram:             So first of all, if you look at the reporting, and I go back to my skepticism on some of the media stuff because I think sometimes the media rushes to be the first ones out with the story. It’s not sourced by the publisher.

Preet Bharara:              So maybe there’s no book.

Anne Milgram:             So there probably is a book. There’s probably, when there’s smoke there is sometimes fire. There probably as a book, but it wasn’t confirmed by Weissmann. It wasn’t confirmed by publishers. And so I still keep a little bit of skepticism only because I think it’s healthy when there are not two sources of information on something. And here the two most important sources have not said anything. So this is all leaks and innuendo.

Anne Milgram:             But here’s what I think. I think if there is a book, it’s not going to be about … I think people will be perhaps disappointed, but Weissmann has had a long career. He was a senior eastern district of New York prosecutor, did a lot of mafia cases, went on to lead the Enron task force. Then was the head of the DOJ fraud section, and was also at NYU a number of years ago teaching.

Anne Milgram:             So he’s a very interesting career, very accomplished with a lot of different parts of his work. And so I would be really surprised for him to write a kiss and tell book. I haven’t spoken with him about it. I have no idea. But I think look, when you work for Bob Mueller, my view is you sign onto Mueller’s view of the world, which is that you do the work, and that’s it.

Preet Bharara:              You talk about it later?

Anne Milgram:             Yeah.

Preet Bharara:              Suppose-

Anne Milgram:             And maybe don’t talk about it at all.

Preet Bharara:              Suppose you’re wrong. Suppose he is writing a book about …. Just I want to do the hypothetical, that he’s writing a book about his time at the special council’s office. I’m just trying to think what are you going to write that’s beyond what’s in the report? Is he really going to talk about deliberations he had with Bob Muller?

Anne Milgram:             I think you can’t. I think you can’t. I wouldn’t, you wouldn’t.

Preet Bharara:              We should make clear, he’s free to.

Anne Milgram:             Yes.

Preet Bharara:              I don’t see any obstacle, legal depending on what the nature of it is. He can’t talk about grand jury information. He can’t talk about classified information. But I did this a lot in my book in much less charged circumstances. We sat around the table, I and a bunch of my colleagues. And we would deliberate what kind of punishment should we seek in this case. And it’s interesting to describe how we went about thinking about it. That’s not in the document, but it’s also not a state secret. So people have some insight into how prosecutors make their decisions. He could do the same.

Anne Milgram:             Yes, absolutely.

Preet Bharara:              Nothing prevents them from doing it other than a culture of that place.

Anne Milgram:             Yeah. And look, maybe he will. But I would wait to see that again. I think that yes, he could. But it also, I think it would raise a lot of issues. If someone on the special counsel’s team walked out and said, “Well, I thought the president should have been indicted. Forget the Office of Legal Counsel opinion.”

Anne Milgram:             It’s front page news. It’s not the conversations that I had in many cases. Well, maybe some of them would have been front page news about is it the right thing to do here?

Preet Bharara:              Maybe we should get that guy in here.

Anne Milgram:             Weissmann?

Preet Bharara:              Weissmann.

Anne Milgram:             You think he’ll answer our questions?

Preet Bharara:              I don’t know. Maybe he thinks he has absolute immunity. By the way, this is the problem with the podcast. Everyone has absolute immunity.

Anne Milgram:             In the podcast?

Preet Bharara:              From appearing.

Anne Milgram:             From appearing. Yes, that’s right.

Preet Bharara:              So we’ll see if there’s going to be a book or not be a book. It’s all we have time for, for this episode of the Insider. We’ll be back next Monday. So send your questions to-

Anne Milgram:             To us at CAFE Insider something. Just send them to me.

Preet Bharara:              Anne doesn’t know the email address? It’s insider@cafe.com.

Anne Milgram:             Insider@cafe.com, and we’ll do our best to answer them.

Preet Bharara:              This is the CAFE Insider podcast. Your hosts are Preet Bharara and Anne Miligram. The executive producer is Tamara Sepper. The senior producer is Aaron Dalton. And the CAFE team is Carla Pierini, Julia Doyle, Calvin Lord, Vinay Basti, and Geoff Isenman. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.

 

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