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February 12, 2020

Stay Tuned Special: Stone Cold Crisis (with Anne Milgram)

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In this special episode of Stay Tuned, “Stone Cold Crisis,” Preet Bharara and Anne Milgram dig into some seriously troubling news: The DOJ’s decision to overrule career prosecutors’ recommended sentence for Roger Stone, Trump’s long-time advisor and friend, a day after Trump called the initial sentencing recommendation “horrible and very unfair.”

The analysis of this and other politically charged legal news continues next Tuesday for members of CAFE InsiderSign up for a free two-week trial to listen. For students with a valid .edu email, there’s now a special rate.

REFERENCES & SUPPLEMENTAL MATERIALS

STONE CASE 

  • Roger Stone initial sentencing memo, 2/10/20
  • Roger Stone updated sentencing memo, 2/11/20
  • Trump tweet congratulating AG Barr on Stone case intervention, 2/12/20
  • Preet tweet re: Judge Amy Berman Jackson, 2/11/20
  • Trump tweet attacking Judge Jackson, 2/11/20
  • “Prosecutors quit Roger Stone case after Justice Dept. intervenes on sentencing,” The New York Times, 2/11/20
  • “Trump pulls nomination of former U.S. for Treasury post,” Axios, 2/11/12

FLYNN

  • “In reversal, prosecutors recommend up to 6 months in prison for Flynn,” ABC News, 1/7/20

GIULIANI / BARR BACKCHANNEL

  • AG Bill Barr’s memo outlining new restrictions on opening politically sensitive investigations, 2/5/20
  • “Giuliani is giving Biden info the government, Barr confirms,” Los Angeles Times, 2/10/20

Preet Bharara:              Hey listeners, welcome to a special episode of Stay Tuned. On Tuesday, just a day after President Trump called prosecutors recommended sentence for his longtime advisor, Roger Stone, horrible and very unfair, news broke that the DOJ decided to overrule their own career prosecutors and ask for less prison time. All four prosecutors in the Stone case then withdrew in protest. And one resigned from the Department of Justice completely. Now there’s a chorus of rightly concerned voices in the law enforcement community questioning the independence of the DOJ under Attorney General Barr’s leadership. This is a big, big deal. So I asked my Cafe Insider cohost Anne Milgram to join me for this special episode to make sense of these latest developments. I hope our conversation helps put this news in its proper context. This is what Anne and I do every week. If you like what you hear, consider becoming a member of the Cafe Insider. You can try it free for two weeks, head to cafe.com/insider. That’s cafe.com/insider. And now here’s my conversation with Anne Milgram about Roger Stone.

Preet Bharara:              Anne, how are you?

Anne Milgram:             Hey Preet, how are you doing?

Preet Bharara:              We were just in the studio yesterday morning taping the Cafe Insider, going through a lot of subjects and interesting topics. And as happens in this new cycle, hours after we finished taping a lot of stuff hit the fan.

Anne Milgram:             Completely.

Preet Bharara:              With respect to Roger Stone. So we’re in the studio to tape a special episode to talk about the Roger Stone thing. To set it up quickly, people remember Roger Stone was convicted of federal crimes, including obstruction in part to protect the Trump campaign. The question is what was going to happen at his sentencing? That sentencing is next Thursday, February 20th. The U.S. Attorney’s office for the District of Columbia put in a sentencing memorandum, where they agreed with the sentencing guidelines that are a matter of law. Saying, “A sentence consistent with the applicable advisory guidelines would accurately reflect the seriousness of his crimes and promote respect for the rule of law.” That was seven to nine years. A short time after that, recommendation was made, the President of the United States took to Twitter and said …

Anne Milgram:             He said yesterday, “This is a horrible and very unfair situation. The real crimes were on the other side as nothing happens to them. Cannot allow this miscarriage of justice exclamation point.”

Preet Bharara:              What happens next? Reports come out that the Justice Department was going to [crosstalk]

Anne Milgram:             First on Fox News. First on Fox News, there’s reporting that the Justice Department is going to step back from its recommendation and then later that day there are two other things that happen. The first is that eventually all four of the prosecutors resign from the case. They put a notice into the court asking-

Preet Bharara:              To withdraw from the case.

Anne Milgram:             To withdraw. Exactly.

Preet Bharara:              And one of those four resigned completely from the Department of Justice.

Anne Milgram:             Yes. The other three basically went back to their positions, their other positions and resigned from this case, stepped off of it, asked for permission to withdraw from the court and the other one resigned completely. And the Department of Justice also filed a new memorandum in which they say, “The government respectfully submits the range of 87 to 108 months presented as the applicable advisory guidelines range would not be appropriate or serve the interests of justice in this case.” They don’t give an exact number, but [crosstalk]

Preet Bharara:              But then they go on to say, “The government respectfully submits that a sentence of incarceration far less than 87 to 108 months imprisonment would be reasonable under the circumstances.” So it’s an about face.

Anne Milgram:             A complete about face.

Preet Bharara:              So let’s talk about a couple of top line things. I have never seen that happen before.

Anne Milgram:             I’ve never seen it happen.

Preet Bharara:              I’ve never seen it happen sort of generally. I’ve certainly never seen it happen where a prosecutor’s office changes its recommendation on something based on the interference or overruling by main justice in Washington. And on top of that, no one in the country has ever seen those things happen after the President of the United States, who has an interest in the case and a relationship, close relationship with the defendant himself, whether he had a side conversation or a phone call with Bill Barr or not, broadcasts to 60 something million people, that it was an unfair and too lengthy sentence recommendation. How big a deal is this?

Anne Milgram:             Yeah, I mean I could not begin to say, I don’t even have words to describe how big a deal it is. Or also how personally devastated I am by this and I think you probably feel the same, but it’s our home. I mean-

Preet Bharara:              I don’t know that everyone gets this and one of the reasons we’re in the studio today is to make clear how big a problem this is and how upset not just we are, I talked to a lot of people yesterday, including a federal judge who’s a friend who says … I said, “What’s the mood on the court?” And I won’t say which court it is, but it’s not the judge in this case. The mood in the court is dark. It’s really dark. And the problem here is that the President seems utterly emboldened to do whatever he wants. And the precedent being set here is that the President can basically dictate with respect to people who were close to him, his allies, that they be treated softly and that his enemies be treated harshly. And he has a willing enabler and participant and enforcer in Bill Barr.

Anne Milgram:             That’s right. I was a local prosecutor in the Manhattan D.A.’s office. I was trained by Robert Morgenthau, there was no politics in the work that we did as line attorneys. And I learned from him for when I was A.G., Like he blocked every piece of politics from us as the attorneys who brought the cases. And I didn’t understand what a burden that probably was, frankly, until I sat in a chair like that myself, where you understand that there are lots of people who are critical of you, lots of people who don’t like what you do. And the bottom line is you have to be strong enough. Mr. Morgenthau did exactly the opposite of what Bill Barr did here. And we’ll talk about it in a minute, but there was never interference when I was in the D.A.’s office. I never saw anything like this happen. I went to main justice, I was there under the George W. Bush administration. There were a number of decisions I disagreed with, but I never saw anything like this happen. And then when I was A.G., I would never have done it. I’ve never seen it happen. It’s beyond-

Preet Bharara:              But I don’t even understand, I happen to be somebody and I talked to a bunch of other former DOJ people that I used to work with in SDNY and elsewhere. Seven to nine years seems a bit high for this conduct and I’m not a fan of Roger Stone and I think he committed a serious crime. Sometimes the sentencing guidelines call for something that’s higher than I think judges want to impose, but the standard operating procedure for the Department of Justice except in rare cases, is to basically say that the default sentence should be within the sentencing guidelines range. And here the sentence is enhanced because of, I don’t want to get too much in the weeds, is enhanced because there was a credible threat.

Anne Milgram:             Yeah, we should get in the weeds a little bit because people should understand that the guidelines are, you committed an offense, there’s a certain number that’s assigned and then other actions that you take in the course of your criminal conduct, those become sentencing enhancements. And one of those is a significant sentencing enhancement. It’s about four years that gets added on if you threaten or harm someone in the course of this obstruction, of tampering with witnesses. Stone was charged and convicted of seven counts. One of them was tampering with witnesses. The Congress and the statutes take that very seriously. The sentencing guidelines is a significant bump. And why is it a significant bump? Because we want to send the message that you cannot interfere with the fair administration of justice, right? I mean that is exactly what this case is about.

Preet Bharara:              The particular facts here are arguable.

Anne Milgram:             Yes, I agree with that.

Preet Bharara:              Because Roger Stone made these threats to a potential witness named Randy Credico and they’re serious. And I think-

Anne Milgram:             Yeah, he said, “Die, prepare to die.” [crosstalk]

Preet Bharara:              The prosecutors, and by the way, the probation office also endorsed this idea of seven to nine years. And they make a recommendation in the pre-sentence report also. Reasonable to interpret that in the way that the prosecutors did in the first case-

Anne Milgram:             And reasonable to disagree completely-

Preet Bharara:              And reasonable to disagree because Randy Credico says he didn’t really take him seriously. He wasn’t really in fear for his life, and that’s the kind of issue-

Anne Milgram:             Although he did testify at trial and here’s why I think it got added. I know we’re getting a little weedy for a minute, but he testified at trial that he was worried what other people would do with that. So it wasn’t just Stone saying to him, “Prepare to die.” It’s that Stone basically put out, for two years had this campaign, and that he felt like he could be harmed as a result of that campaign by Stone. Now again, the judge gets to decide-

Preet Bharara:              The point I want to make you and I would have had a conversation in our office about do we think the enhancement counts or not? It’s not crazy to say it does. It’s not crazy to say it doesn’t.

Anne Milgram:             I agree with that.

Preet Bharara:              Once they made the decision in consultation with the interim U.S. Attorney Timothy Shea, at the D.C. U.S. Attorney’s office and they filed the document. For the President to then make his statement and for the Justice Department to humiliate those prosecutors and make them withdraw and file a new one, is not the way you go about it. If you want to be consulted and by the way, there’s, in fairness, there’s some reporting about whether or not there was an accurate briefing given to main justice.

Anne Milgram:             I want to talk about that in a minute.

Preet Bharara:              About what the sentencing should be, but in no universe can I believe that there wasn’t a decision made within the U.S. Attorney’s office that was blessed and approved by the interim U.S. Attorney Tim Shea, who by the way replaced the prior U.S. Attorney and he’s handpicked by Bill Barr. He used to work for Bill Barr, so he’s on the team.

Anne Milgram:             It’s important for people to understand too with sentencing that you’re right, there is a fair question about whether or not you’re going to add that big of an enhancement. There’s a question about a number of the enhancements. You could disagree behind closed doors about it 100% and I give a lot of credence to the fact that the people who tried the case felt that it was appropriate here. But all that being said, there is a hugely complex burdensome process of going through things like sentencing randoms in DOJ. So nobody should think that like someone sat in a back room, typed this out and filed it with the court without a number of levels of review. So there was a decision made, this was vetted at multiple levels and then it was put in.

Anne Milgram:             And I agree with you, look, they could have taken a different position and you and I wouldn’t have … We would have basically said people could sincerely agree or disagree, but once they took that position and they filed it on Monday, the only thing that changed between Monday and Tuesday was the political opposition by the President and seemingly by Bill Barr to the decision that had been made. And so that is what-

Preet Bharara:              So if you’re the attorney general, here’s what I think is particularly dangerous, Bill Barr doesn’t seem to give a damn anymore about how it looks, about what happens to his reputation. At that point, the water is under the bridge and by the way, prosecutor’s recommendations don’t carry as much weight as they used to carry. The judge makes the decision, I think a lot of people might think seven to nine years is a bit harsh and tough, even people who don’t agree with this process. And he might’ve gotten the sentence that he’d gotten and I think, a person like you or me would have just kept our mouths shut. If there was a problem with the briefing, we would have said, next time we want a heads up.

Anne Milgram:             Yeah, completely and that’s a reasonable thing to make [crosstalk]

Preet Bharara:              Especially after the President tweets about it, I wouldn’t touch that thing with a 5,000 foot pole. Bill Barr not only does, he does it happily, he does it heartily and the question for me is, and we’ll get to the four people who withdrew from the case, how does Tim Shea sign the memorandum on Monday that says seven to nine years and then again after four of his people withdraw from the case, one resigns totally from public service, and then he signs the memorandum the next day. Where’s his spine? Where are his guts? Where are his ethics?

Anne Milgram:             Yeah, I mean, let’s talk about two things. One is this idea that the Department of Justice may not have been properly briefed. Look, any benefit of the doubt in my view that we’ve been giving to people as honorable, truthful folks, I have to really sort of push on this because nobody has gone on the record saying that it was sort of one of their immediate defensive reflexes. And so I want to know more and I am open to hearing more about what actually happened. But I personally, it’s Bill Barr’s right hand guy from DOJ who’s in charge.

Preet Bharara:              Yeah, totally.

Anne Milgram:             It’s like to me, all the evidence points in the opposite direction. It points that Barr would have known of this or someone senior in the department would have known of this. It’s also one of the most politically sensitive cases and you know the President is going to tweet about it. He’s been tweeting about Roger Stone for years.

Preet Bharara:              There’s a permission structure that is now enshrined based on this conduct in the Department of Justice, that if the President of the United States wants to intervene on behalf of a specific named ally, who committed his crime in part on behalf of the Trump campaign, that’s fine, that’s dandy and there’s nothing you can do about it.

Anne Milgram:             Yeah and think about what that says to all Americans and look, the criminal justice system is so important, it enforces the rule of law. All Americans who are, whether it’s interact with the police or the FBI or prosecutors or a judge, they need to stand there believing that justice is administered fairly and not based on political bias. And this undercuts that in the most significant way I’ve seen.

Preet Bharara:              Should Tim Shea resign?

Anne Milgram:             Yes.

Preet Bharara:              I agree.

Anne Milgram:             Yes, I don’t think he will. Now let’s talk about this, because I was thinking about you yesterday when the prosecutors resigned. It is a really powerful and important moment of basically standing up and saying like, look, I’m going to do the right thing and here’s what it is and it takes an enormous amount of personal courage.

Preet Bharara:              Let’s talk about the withdrawal and what that means. So people have asked the question, so on what basis are attorneys permitted to withdraw? You don’t just walk away in a civil case or a criminal case. That’s why they filed bare bones documents with the court seeking leave to withdraw, asking for permission to withdraw. Now usually that’s fine when it’s a government lawyer because the government is deemed to be this sort of large law firm and then anybody who is gainfully employed by the government can substitute in and it’s not a big deal. People switch out all the time.

Anne Milgram:             I once had a judge tell me, I said, I can’t try the case that day, I’m on trial with another case. And she said, “But you understand you are fungible, right?”

Preet Bharara:              Yes, judges would say that in the Southern District too, you are fungible. Meaning, it doesn’t matter. I don’t care if it’s [crosstalk] Anne Milgram or Preet Bharara, it doesn’t matter. This is a particularly fraught withdrawal obviously. And the question is, what right.Does the judge have to make an inquiry? I tweeted last night, well, I think Judge Amy Berman Jackson has a lot of authority, just inherent authority to call for them to come in and try to get something on the record, which might be some insight into what they were thinking because their emotions were bare bone.

Preet Bharara:              There’s an analog to this that I referred to in my tweet last night also. A judge in the Southern District in connection with the census case. Remember the census lawyers for the government took a very strong position that the question about citizenship had to be added to the census to be viable by some dates certain and they kept losing in the courts. And then Trump and others basically overruled that and wanted them to take the position, no, no, no, no, we can appeal and we can put it in the question later. And then the entire team, that’s a civil case, the entire team at the Justice Department put in a letter of withdrawal there too. And the judge in the Southern District, Jesse Furman, who used to work with, he said, “Well, pursuant to a local rule, I need to make an inquiry and ask some questions about why that is.” Now that never happened, you know why?

Anne Milgram:             Yeah, because he didn’t do it.

Preet Bharara:              Because they caved. Because the President finally caved on that issue. There’s some question about whether or not the local rule in Washington D.C. and the district court there applies, but I think regardless, if you’re the judge, don’t you want to know what happened here?

Anne Milgram:             Yeah, 100%. I think the judge has the right to call the lawyers in to demand an explanation. Also, the judge sat through the trial with those four lawyers. She undoubtedly believes that there’s a reason that they’re stepping out. To me, it’s an incredible sign of protest and that they feel that something has happened that is incorrect and unfair. And so, she could say, I’m not going to let you withdraw or more likely just basically say you have to come in and explain why.

Preet Bharara:              Do you think the judge is now in a pickle? Because if the judge decides to give the lower sentence, will it look like that judge, who by the way, the President has tweeted that and seem to try to intimidate. Will she be worried that she looks weak by getting a lower sentence? I don’t think so either.

Anne Milgram:             I don’t think so. What we’ve seen of her in this case and in some others is that she’s been very strong. She’s been very sort of no nonsense. And look, my view on this stuff is, you can’t win, right? No matter what choice she makes, shit, there’ll be criticism. And so she’s got to make the choice she thinks is right. And frankly I think she would have made that choice regardless of the government. She sat through this trial, she hears from the government, she hears from the defense, she’s going to make a call. I don’t think that this helps them with her, right? And I’d be curious to know what you think, but I don’t think the government stepping back in any way is going to induce her to be more lenient. I think she’s going to do what she thinks is right.

Preet Bharara:              You know what’s also galling about this, is that the Attorney General of United States, who basically Trump confirms quote, he congratulates the Attorney General Bill Barr for taking charge of a case that was totally out of control, basically endorsing the idea that-

Anne Milgram:             Yeah, he did it.

Preet Bharara:              … There was interference on behalf of the President of the United States.

Anne Milgram:             This is a little bit of the get over it again, it’s a little bit of a, yeah, we did it.

Preet Bharara:              But the crazy thing is that he’s interceding here to get a lower sentence for this white collar criminal who engaged in threatening behavior on the same day that he made a speech about “progressive prosecutors” who don’t seek strong enough sentences.

Anne Milgram:             Yeah, this is all the [crosstalk] thing completely.

Preet Bharara:              What is going on?

Anne Milgram:             And Barr should be taken to task for this-

Preet Bharara:              Taken to task.

Anne Milgram:             He should be taken to task-

Preet Bharara:              You misspelled fired.

Anne Milgram:             I did? Oh, he should be fired, right, sorry. Yeah, he should be fired. He should be impeached, actually. Not to say the I word so soon again. But here’s the issue with Barr, when it suits him and is politically beneficial to him, he wants to go stand with all the police officers and the FBI agents and the sheriffs who say, yeah, we want to be tough on crime. We want people to be prosecuted and sentenced. And we don’t want sentencing reform necessarily. And by the way, there are plenty of police officers and FBI agents and others who do, but Barr’s taken a really firm line of tough on crime, strong sentences. And again, against the prosecutors who have diverted people and done alternative to incarceration.

Anne Milgram:             And then he walks in and literally says that the very man who was obstructing the administration of justice, here it was Congress. But the reason obstruction exists is not just for Congress, it’s in large part people obstruct law enforcement. He’s basically saying, you shouldn’t be punished too severely even though Congress said that this punishment is appropriate. And we have to go back to the fact that members of Congress voted for these laws. Members of Congress approved … The sentencing commission, they’ve agreed to this scheme. We can disagree with it, but that’s not what Barr, is doing. He’s always saying, you got to be tougher except for when it’s his political cronies and the President’s, and that is just not okay.

Preet Bharara:              It is just not right in property of the United States of America for people who are allied with the sitting President of the United States to get special treatment, special dispensation, special attention. It’s ridiculous, it’s garbage. It really is.

Anne Milgram:             And it does happen in other countries, but as a rule, in my experience, it doesn’t happen here.

Preet Bharara:              And by the way, it’s coupled with on the other side, it’s not just clearing and having minimal difficulties for your allies. On the other side of the coin, it’s attacking and investigating your enemies, whether you’re calling the president of Ukraine or you’re having a special back channel between Rudy Giuliani, who was being investigated by the Justice Department reportedly to give information about the Bidens directly to Bill Barr. So it’s both sides of the despotic totalitarian coin.

Anne Milgram:             Yeah, I agree. I couldn’t agree more. And let’s also just talk for a minute about how it happened yesterday that they didn’t even tell the prosecutors.

Preet Bharara:              They found out from Fox.

Anne Milgram:             They found out from Fox News. And that’s how political this is, right? That someone got to the White House, the White House leaks that or the attorney general leaks. It was one of the two of them and their teams leaks to Fox News, Actually, we’re going to step it back.

Preet Bharara:              Do you have any doubt that Roger Stone will be pardoned or that his sentences will be commuted?

Anne Milgram:             I believe he will. I agree with that.

Preet Bharara:              I think it just, I just don’t know when, I mean, I think it’s possible it could happen before this airs.

Anne Milgram:             Look, the President could have done that a long time ago. There’s a political cost to that, but it’s a legitimate presidential authority. I would not agree with him using it here, but the President has the power to pardon him. He has the power to commute-

Preet Bharara:              So when is he going to do it, when’s he going to do it?

Anne Milgram:             Now I think he has to wait till he’s sentenced.

Preet Bharara:              He could pardon him before that, so you don’t even put the judge in that position. You don’t put the judge in the position of having to ask questions of the prosecutors, why they withdrew? He can moot the whole thing.

Anne Milgram:             Yeah. I mean, here’s the problem, a jury of his peers, Roger Stone’s peers, a jury of people like you and me, Americans, basically sat in judgment of Roger Stone and this past November convicted him of seven counts, found him guilty and he hasn’t been sentenced and held accountable on that. And the President can absolutely decide to pardon him, but I do think it really undercuts the jury process. Like it’s weird to me to pardon him in this moment, to not do it before or not wait till after the sentencing.

Preet Bharara:              By the way, we still don’t know the facts about another reversal by the Department of Justice with respect to the sentencing of Michael Flynn. That seemed kind of weird and we raised our eyebrows about it a couple of weeks ago. This combined with that now leads inevitably to think that there’s a pattern going on. Bill Barr is taking over for Donald Trump doing whatever he wants to do-

Anne Milgram:             And I’d add one more to that, which is what I see as really the firing or at least pushing out of Jesse Liu who’d been the U.S. Attorney in D.C. There’s now the acting U.S. Attorney, Tim Shea, who was Bill Barr’s right hand, but Jessie Liu was moved out. Remember she was initially going into the Department of Justice, then she was going to treasury. Yesterday, her nomination to treasury was withdrawn by the President-

Preet Bharara:              I think because she had a confirmation hearing coming up at which she was going to be asked questions about the Roger Stone case and they pulled her nomination.

Anne Milgram:             Yeah, they pulled it.

Preet Bharara:              So just to summarize and then we’ll let people enjoy the rest of their day. This is really, really bad. I don’t think you and I talk in these kinds of terms often. I think we see things and put them in perspective. This is a huge, huge deal a little bit overshadowed by New Hampshire yesterday. It shouldn’t be. It’s a continuing scandal. It’s this thing, it’s Michael Flynn. It’s the new policy that the attorney general puts in place. It’s prosecutors withdrawing in mass from a case. It’s a big deal. There should be an investigation. There should be further oversight and inquiry and it’s a really dark day for the department.

Anne Milgram:             Yeah, I agree. And look again, I served under the Bush Department of Justice. You served as an AUSA under different departments of justice. This is the kind of thing that doesn’t matter what your political party is, you should be very, very concerned about. Because it is undercutting like nothing else we’ve seen in my view, the rule of law and we have seen the President attack the institutions, but this is the next level to basically make a change like this based on political.

Preet Bharara:              It’s special justice for the President and his peers and injustice for people who dare to cross him and it’s wrong and it should be stopped.

Anne Milgram:             Amen.

Preet Bharara:              Enjoy your day.

Anne Milgram:             Yeah.

Preet Bharara:              I hope you enjoyed our discussion. If you want to hear analysis like this on a regular basis, become a member of the Cafe Insider community by going to cafe.com/insider and get access to all insider content. You can even try it for free for two weeks. That’s cafe.com/insider. And students with a valid .edu address now qualify for a special student rate. You can get that at cafe.com/student. To the many of you who have chosen to join the insider community, thank you for supporting our work. Your hosts are Preet Bharara and Anne Milgram. The executive producer is Tamara Sepper. The senior audio producer is David Tadashore. and the Cafe team is Julia Doyle, Matthew Billy David Kurlander, Calvin Lord. Sam Ozer-Staton and Jeff Eisenman. Our music is by Andrew Dost. Thank you for being a part of the Cafe Insider community.

 

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Stay Tuned Special: Stone Cold Crisis (with Anne Milgram)

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