The Kavanaugh Hearings (with Anne Milgram)

Air date: 9/28/18

Preet Bharara:

From CAFE, this is a special edition of Stay Tuned. I’m Preet Bharara.

Preet Bharara:

The recording is on Friday morning, September 28th. The hearing on Brett Kavanaugh took place yesterday. The vote in the Senate Judiciary Committee is happening right now as we speak. We’re going to get to my interview with Anne Milgram in a moment. But first, just a reminder, that Stay Tuned is going on tour this fall. Tickets are on sale for two dates already. The first is October 25th right here in New York City.

Preet Bharara:

So, I’m here with Anne Milgram at the place of our employment, New York University School of Law. It’s about 10:20 a.m. on Friday, September 28th.

Preet Bharara:

We’re going to talk about Brett Kavanaugh and Dr. Ford, and the Supreme Court hearing, such it was yesterday, which I think went on for about 91 hours. The vote and speeches surrounding the vote on Brett Kavanaugh in the committee of the judiciary in the Senate is happening as we speak, but we decided not to put off having this conversation, because a few minutes before we started recording, Senator Jeff Flake who’s a Republican on the committee said that he would vote to confirm Brett Kavanaugh.

Preet Bharara:

So, our expectation is, and do you agree with this?

Anne Milgram:

I agree.

Preet Bharara:

It’ll be an 11-10 party line vote in favor of Brett Kavanaugh. So, we thought we’d sit around a desk at the law school and record some of our thoughts. And welcome to the show again.

Anne Milgram:

Thanks for having me.

Preet Bharara:

You were favorite of the fans, and there’s nothing better than talking to you about stuff that went on so we can unpack it, make some sense of it. We could talk about this for many, many hours, but we want to put out a short episode to hit the highlights. And firstly, just talk about the alleged victim in the case, Dr. Ford, who testified for quite a length of time, how’d you find her?

Anne Milgram:

I mean, can we step back just for one second, which is that… and I do want to talk about that. But I also think we have to talk a little bit about the process that, to me, as a sex crimes prosecutor-

Preet Bharara:

Let’s start with the process. So, ordinarily, you and I both lived through 27 years ago, Anita Hill and Clarence Thomas, and you and I were both in criminal cases, and you’ve done probably more sex crimes prosecutions than I have, how’s it supposed to work when there’s a an allegation of sexual assault?

Anne Milgram:

So, in my experience, particularly sex assault cases more than anything, there needs to be an investigation of some kind. And one of the things that was incredible to me was that instead of having an investigation and a real conversation about the corroboration of witnesses, the lack of corroboration, really the substance of it, we went immediately into this committee hearing, which is not an investigation, which is really it’s a conversation.

Anne Milgram:

It’s really Brett Kavanaugh’s job interview to go on the United States Supreme Court.

Preet Bharara:

Yeah. It’s part job interview, it’s part hearing. It’s part press conference.

Anne Milgram:

It’s part political theater.

Preet Bharara:

It’s part of presidential campaign for 2020.

Anne Milgram:

Yes. And so, I just want to frame that that I think… I don’t want to accept that that was the right way to do this. And so, that’s the first piece. The second piece is I did find her to be very credible, and I didn’t know what to expect coming in. We hadn’t heard from her. There were newspaper articles quoting her, but she came in, and having done sex crimes and human trafficking cases, and sexual harassment investigations, what I always look for, I look for, is someone forthright?

Anne Milgram:

Did they tell you the good with the bad? Do they give you information? Not necessarily the event itself, but other information that can be corroborated, like that Mark Judge was a good friend of Brett Kavanaugh, like that they live close together, like different pieces of fact that that you can use to knit together to figure out this someone’s testimony of the ring of truth. And I also thought she was… her demeanor spoke volumes to me, that she really didn’t want to be there. What did you think?

Preet Bharara:

So, what struck me was this thing that maybe people in the lay public don’t think about so much and how we gauge credibility, and how jurors gauge credibility. And sometimes it’s, I was on the street and there was a red car coming towards me, and that can be corroborated by photographs or something else. But there’s something else that you hit on, which is the likeability and general demeanor of a witness.

Preet Bharara:

And Dr. Ford, even though she was clearly frightened, she clearly did not want to be there, right? She had these little moments of when she was saying… so now, I have my coffee. So now, I can proceed, or I like being collegial, the way she was deferential to the folks on the committee.

Anne Milgram:

Very much so. Yeah.

Preet Bharara:

It’s these little things that make you think not just that the things that she’s saying in the moment are likely to be true, but she is generally speaking a genuine, honest, truthful person, right?

Anne Milgram:

Yes. And I also think to that point there are a lot of instances where she could have embellished that she could have said, “In 2012, I said it was Brett Kavanaugh,” and she did it, and she never did that yesterday. She never made any, in my view, her story has been consistent in terms of what she said in 2012, “I’d never said his name.” And that stuff matters a lot when you’re looking at somebody giving us the good with the bad.

Anne Milgram:

It certainly would have been better for her had she said, “I told my husband before we got married that Brett Kavanaugh had done this.” And to me, there’s also a pretty compelling timeline, and I would be interested to what you think about this, but this guy who she’s telling us has done this terrible thing to her, he goes on the DC circuit, and all of a sudden, he’s shortlisted.

Anne Milgram:

So, to me, there was a lot of credibility in her explanation for why she waited a long time to come forward, and then ultimately did come forward.

Preet Bharara:

Well, the timing of her coming forward is very important because there’s this narrative on the part of the people who want to rush to confirm Brett Kavanaugh that it was a last minute thing trying to undermine the confirmation. But as you and I know from the hearing and otherwise, she actually tried to come forward before he was actually nominated, when she thought it was a possibility.

Preet Bharara:

Now, there can be arguments about whether she’d gone public at that time and what Senator Feinstein and her local congresswoman may have done, but she actually did not wait till the end.

Anne Milgram:

Right, that’s true. And I think it’s also important when people think about why didn’t she come forward 36 years ago? My experience is that the vast majority of women do not come forward. And so, I almost think as a country, we have to flip our expectations that women would come forward and even confide in their best friends or their parents at that time, the norm is that they wouldn’t.

Anne Milgram:

And so, to me, there was a lot of credibility in she moved on, felt she was lucky that she hadn’t actually been raped, and then has these traumas that come out of it that stayed with her for many years.

Preet Bharara:

And the other thing that was strange, and also if I can say is endearing, that because she was both the fact witness because she’s the victim in the case, but she also happens to be a highly-trained, highly-credentialed psychologist, some of the answers she gave, we’re both from the perspective of having been in the room and being attacked in this way, and also an expert explanation of how memory works.

Anne Milgram:

Yes.

Preet Bharara:

The one phrase that interestingly sticks in my mind was she was asked by I think Senator Leahy about what she remembered the most. And rather than saying something is ingrained in my mind, she said, “It’s indelible on the hippocampus.”

Anne Milgram:

Yeah, the laughter, the laughter. Yeah.

Preet Bharara:

Yeah, I had to look up what hippocampus means.

Anne Milgram:

Me too. Me too. And then, you used it very well in a sentence last night as we were texting.

Preet Bharara:

Anne and I were texting. A lot of people were texting with a lot of people yesterday. It was interesting just an aside for a moment, and I know the listeners have the same experience, so I watched the whole hearing from beginning to end.

Anne Milgram:

Me too, yeah.

Preet Bharara:

Because I have the flexibility to do that now. And I would hear people on social media say things like, “I’m walking to the streets of New York and everything seems quiet.” And I saw some people texting from an airplane saying, “Flight attendants were going through the aisle during the food service and were looking over passengers’ shoulders to ask what’s happening.” There was at a quiet.

Anne Milgram:

It was a national moment, for sure, or a national hour, day is really… yeah, is really more like it.

Preet Bharara:

It’s a very long hour.

Anne Milgram:

But I couldn’t agree more. When I was walking around, I had it. I was listening to it live in my ears, and I saw a number of people that seemed to be doing the same thing. So, I think we were all tuned in.

Preet Bharara:

So, going back to Dr. Ford for a second, was there any point in her testimony that you thought her credibility was seriously challenged?

Anne Milgram:

There were a couple things I thought. First of all, I think the Republican narrative has been and was very clearly yesterday to me through the questioning, she doesn’t remember a lot. There are gaps in her memory. She hasn’t always said the same thing. Were there four people there? Were there six people there? Were there two women there? And so, I think a lot of it was going towards that, which since Dr. Ford had been forthright about those things, didn’t feel like a big deal to me.

Anne Milgram:

I thought where they spent a lot of time and this surprised me a little bit, were on things like being willing to fly the airplane who paid for the polygraph. And that’s where I think I would not have gone into detail in those things for a few reasons. One is, I mean, you and I probably both know people who are afraid to fly who still fly?

Preet Bharara:

My wife is, who I know pretty well, is incredibly afraid of flying like a lot of people and hates to do it, and tries to avoid it. And when she does do it, my daughter or I hold her hand. Sometimes, she has to be medicated. But you know what, she wants to see her father in Chicago and her mother in Chicago. And if the whole family is going to go fly somewhere on vacation, she wants to come. We can’t really drive to Colorado.

Preet Bharara:

So, there’s millions of people who are afraid of flying, and the idea that it undercuts your credibility that you didn’t want to do it and come… and specifically, the opposite of vacation. Basically, flying into a hellhole to testify about this incredibly personal terrifying experience that you had in front of the whole country knowing that there were a group of men, namely the 11 people in the Judiciary Committee on the Republican side, who have an interest in attacking your credibility from beginning to end.

Anne Milgram:

And many of whom had already said that they were going to vote to confirm Kavanaugh, right? So, it’s hard to not be daunted by that.

Preet Bharara:

But two other points about the whole thing and the way that this woman, Rachel Mitchell went about it. So, before Rachel Mitchell showed up, I had conflicting thoughts about this process. And I have said before, and you and I both served in the Senate, and we served senators on various committees, senators don’t often ask very good questions.

Anne Milgram:

True.

Preet Bharara:

And if the goal is to get to the truth without a lot of spectacle, it sometimes is useful to have professional lawyers do that. Sometimes, you can have a hybrid of that. So, when I was in the Senate in 2007, I helped lead the investigation to the firings of US attorneys and politicization of the Justice Department. And I personally, as an experienced and trained lawyer who tried cases, interviewed and deposed a lot of witnesses, including for hours and hours at a time, the chief of staff of the attorney general at the time, the deputy attorney general, so many other people.

Preet Bharara:

And then, the staff does that, does the investigation, collects documents, and then-

Anne Milgram:

The senators ask the questions.

Preet Bharara:

And then, you have an open hearing that’s much shorter because it’s hard to get to the truth in a hearing where people don’t have the luxury of time. And so, it’s a long-winded way of saying, “This whole five minute increment.”

Anne Milgram:

Yeah.

Preet Bharara:

Especially when there has not been a deep background investigation so that you know what the pertinent things are. It seems silly-

Anne Milgram:

I agree. Yeah.

Preet Bharara:

… and counterproductive. And so, right off the bat, I think Mitchell was handicapped or straitjacket, or whatever metaphor you want to use, because she would finally get into a groove asking a series of questions. And then, Grassley would interrupt and you go to someone else. And so, knowing that that was going to be the process, I thought her mistake was she had a limited amount of time.

Preet Bharara:

One of the reasons criminal trials work better than congressional hearings, two reasons. One, is there’s a judge, and a judge can shut you up and cut you off. And-

Anne Milgram:

And he’s neutral, and he’s basically trying to [crosstalk 00:12:11]. Right.

Preet Bharara:

And can rule on objections unlike a chairman of a committee who’s affiliated with a particular party. And then, second, there’s a time limit.

Anne Milgram:

Right.

Preet Bharara:

So, when people say, “How long is a cross going to be?” Well, maybe-

Anne Milgram:

As long as they need, exactly.

Preet Bharara:

As long as you need, and you can’t filibuster, because it’s to no end, because you ultimately will get to Brett Kavanaugh’s testimony in a couple of minutes. But part of the reason Brett Kavanaugh was able to get away with not answering certain questions like, “Why wouldn’t you support an FBI investigation?” is that he knew that the questioner only have a-

Anne Milgram:

Was going to run out of time, [crosstalk 00:12:40].

Preet Bharara:

And then, he was going to get a friendly senator.

Anne Milgram:

I agree.

Preet Bharara:

Right? So, for people who think that you can actually do an investigation of something, whether it’s an allegation of sexual assault or Benghazi, or anything else in the setting of a congressional committee with no neutral arbiter and time limit-

Anne Milgram:

It’s impossible, yeah.

Preet Bharara:

… is an absolute impossibility.

Anne Milgram:

Yeah. I agree with you.

Preet Bharara:

Which is another reason why I think you and I agree, but there should have been some investigations.

Anne Milgram:

There had to be a real investigation. Kavanaugh said a couple times yesterday, “This is the investigation.” That is not an investigation, and there’s no way in which it is. I mean, an investigation takes place when neutral law enforcement goes out or generally people who have experience with these things questions witnesses, runs down leads, tries to get every piece of evidence, and then ultimately, is able to figure out the truth or at least even if the FBI didn’t make a call on the truth in something like this, gives the factual information to the people who are able to then make the conclusion.

Preet Bharara:

Simply devil’s advocating that for one second, so everyone loved this idea. I mean, I agree with it, but let’s just talk about the other side. Everyone loves this idea of FBI investigation, FBI investigation, as if that was going to solve everything.

Anne Milgram:

Right. It would not solve everything.

Preet Bharara:

And it’s true that they don’t come to conclusions, they don’t say the person is guilty or not. But we’re talking before the recording, someone said it best last night as reclined of Vox on Twitter said, “Sure, but that argument that the Republicans are making, it’s like saying, ‘An MRI doesn’t conclude anything, so why bother having the MRI? You’d have the MRI so you see what’s going on in the body. And then, sent in human beings, doctors make the determination.'”

Anne Milgram:

And sometimes they disagree. You could have three doctors who see something and see it differently, but they’re given the information from the MRI to make their conclusions.

Preet Bharara:

But it’s not likely that there’s very little information to get by the FBI because it was 36 years ago. Some of the witnesses already said under penalty of felony which we kept hearing. I don’t know, I don’t remember. So, A, how long would that FBI investigation that everyone was hailing, how long would that have taken? And B, would it really have resulted in anything?

Anne Milgram:

I think it’s hard for us to know, but I certainly think that there were a number of leads and other people who were at the schools that I would have followed up on. There’s also the two new allegations which I would like to see the FBI might come to a conclusion that they’re not credible or that there’s insufficient evidence to find people who would corroborate the new women, but-

Preet Bharara:

Allegations, just quickly, are one that has to do with Brett Kavanaugh’s time when he was in college at Yale, and a woman there claims that Brett Kavanaugh exposed himself to her at a party and that other people saw it and remember it. And there’s another allegation brought forward by the infamous and now notorious Michael Avenatti who claims his client saw Brett Kavanaugh at parties knowingly participating in and being knowledgeable about things like gang rapes.

Anne Milgram:

Yeah. And I think an FBI background check would have looked into it. At this moment in time, if they ordered another FBI background check, I would have expect them to look not only at the Blasey Ford piece, but also at those two pieces. But look, I think it’s possible that an FBI background check could be favorable to Kavanaugh, right, by coming to a point of saying, “Well, there is no additional evidence or there is no corroboration beyond what we already have.”

Anne Milgram:

That being said, it does feel to me like this was a pure political process. And I’ve done sex crimes cases, you investigate them more than you investigate any other type of cases.

Preet Bharara:

Why is that?

Anne Milgram:

Because of the nature of they’re often, he said, she said. And look, here, it’s very unusual to have this third person in the room who I do think should have to go into the committee under… with Mark Judge.

Preet Bharara:

Who’s a recovering alcoholic.

Anne Milgram:

Who corroborates in my view a lot of Blasey Ford’s testimony, yes. He says, “I don’t recall that specific night.” But we know he was a very close friend of Kavanaugh’s. We know they were at parties a lot. We know he worked at Safeway. We know from his book that he was an alcoholic. And so, to me, there’s enough there really to warrant pulling him in into the committee for questioning. But again, I’d rather that there’d be a real investigative process, because-

Preet Bharara:

It’s good for everybody.

Anne Milgram:

It’s good for everybody, and it might be fantastic for her side, right? It might be fantastic for his, but there’s a fundamental fairness question here. And look, you and I are used to law enforcement who are we see as neutral doing these types of investigation. And I think that’s important, but any type of real investigation here, I think there has been absolutely none.

Anne Milgram:

And to me, at the end of the day, it just becomes he said, she said without a real investigation.

Preet Bharara:

It leaves a cloud and open question. Some of the Kavanaugh supporters have said like a mantra during the hearing, “Look, he was investigated six times for these various jobs.” You and I have both gone for background investigations multiple times.

Anne Milgram:

Yes.

Preet Bharara:

Did they have skeletons in our closets?

Anne Milgram:

I think the FBI background checks, they really are you give them a list of people you know and people you’ve worked for, and they go out and do that. And by the way, I once had an FBI agent doing a background check on me who couldn’t find me and I was sitting in the United States Department of Justice already. So, I think we have to be real about they’re not law enforcement investigations, they’re background check investigations.

Preet Bharara:

Because anything about background checks is people don’t realize that they don’t go into your bank accounts, right? So, if you’re engaging in some nefarious financial activity, they ask you a lot of questions, but it’s not as invasive as you might think. And that’s probably not a terrible thing. And if there is somebody who has experienced something bad at your hands and has never come forward, has never told anyone-

Anne Milgram:

It would not be in your background check, correct.

Preet Bharara:

It’s not going to be in a background check, because they don’t go literally to every human being you’ve ever been connected to in your entire lifetime, it can’t happen that way. So, it’s often going to be true, just like there are criminals by the way walking the streets, that it takes a long time for law enforcement to get a hold of and to get a beat on, because we don’t just look at everyone’s personal dealings and tap everyone’s phones, and go and talk to everyone that they’ve ever met in their life.

Preet Bharara:

You can’t do it that way.

Anne Milgram:

That’s right. So, let me ask you this because you led a senate investigation, is there another type of investigation? Could you have done a bipartisan investigation? And the hesitancy I have in asking this is having done sex crimes, it is different from other cases, right, and having done sex trafficking cases. So, a lot of folks might not have that training and knowledge to do those types of cases.

Anne Milgram:

But it does feel to me that the FBI is a better option, but there’s still something lacking in that option as well.

Preet Bharara:

The distinction here that is a correct one when people keep talking about FBI investigation or the investigation that we did, which is of the actual impropriety as part of an oversight function by congressional committee is different from this thing. This thing is about the background check and the BI, which stands for background investigation. And so, there’s this sort of not very good faith back and forth debate on how the FBI doesn’t do this or that and it couldn’t be charged anyway because it’s an assault and it’s a state law violation. That’s of no moment at all.

Anne Milgram:

Right, I agree.

Preet Bharara:

The point here was looking at whether or not somebody is fit for a particular office, and certainly, the highest court in the land. But the question is whether or not they should just reopen the thing that they were already authorized to do. Everybody just-

Anne Milgram:

And they do it all the time.

Preet Bharara:

They do it all the time.

Anne Milgram:

When I was AG in New Jersey, we reopened background check to people all the time. I mean, there’s nothing uncommon about it. Yeah.

Preet Bharara:

So, before we get to what the testimony of Brett Kavanaugh was like, overall, do you think this idea that the Republican senators had a bringing in an outside sex crimes prosecutor, did that work or did that backfire?

Anne Milgram:

So, here’s what I really dislike. I really dislike that when you… if you look at all the research on sexual harassment and misconduct, the number one thing that is important is having women as line employees and in positions of authority in companies and organizations, and you look at the 11 Republicans on the Senate Judiciary Committee, the majority, and there’s not a single woman there. And by the way, there are Republican women senators.

Anne Milgram:

So, I find this so troubling that this is the setup that we start from. In terms of having her come in-

Preet Bharara:

There’s in fact, I believe. There has never been a Republican woman on the Senate Judiciary Committee.

Anne Milgram:

Which is astonishing, because that’s the committee, the Judiciary Committee, they do deal with women’s rights. They do deal with things like Roe v. Wade and questions of fairness and equality.

Preet Bharara:

And every judge in the country-

Anne Milgram:

Every judge deals with it.

Preet Bharara:

… Federally goes to the Judiciary Committee.

Anne Milgram:

And so, to me, the fact that they didn’t have a single woman on that committee that they could have turned to and said, “Look, we want you to lead the questioning-“

Preet Bharara:

It wasn’t smart, but ultimately, just as a matter of politics and optics, I didn’t think this yesterday, but I woke up this morning, and you know what, I heard Grassley say just before we started taping, he said, “We have this person. Every question asked to Dr. Ford was respectful, and it was-“

Anne Milgram:

It was, I agree with that.

Preet Bharara:

Right?

Anne Milgram:

Yeah.

Preet Bharara:

And he then contrasted that with… I think he overstated it, but he contrasted that with then this obnoxious questioning and tough questioning by the Democrats, the senators of Brett Kavanaugh. So, yeah, I think during the whole thing yesterday, the tableau was terrible. You had these 11 men, including big mouths like Ted Cruz and others sitting silently while this I think seemingly competent female lawyers asking the questions-

Anne Milgram:

Yeah, I agree. I agree.

Preet Bharara:

… and they look silly, and they look like they were abdicating the responsibility, but there are no soundbites of a male side-

Anne Milgram:

Right, from a political perspective I think was very wise.

Preet Bharara:

You’ll see Lindsey Graham getting red in the face, yelling at her.

Anne Milgram:

Right. Didn’t you think it was just ingenuous though that they started to have her question Kavanaugh and then it flipped pretty quickly?

Preet Bharara:

Oh yeah.

Anne Milgram:

And then, all of a sudden, there’s not someone who looks like a competent prosecutor. There’s the senators coming in to give political speeches.

Preet Bharara:

They actually politically, and maybe it was genius, and maybe you find it offensive, but they got the best of both worlds, right? They got to avoid looking like jerks, obnoxious and out of touch with respect of the victim.

Anne Milgram:

And then, they got to give their speeches, yeah. Completely.

Preet Bharara:

And they got to give their speeches and the defenses of Brett Kavanaugh later. So, the whole-

Anne Milgram:

They got it both ways.

Preet Bharara:

Yeah.

Anne Milgram:

Yeah.

Preet Bharara:

So, I don’t know. Maybe they’re very smart. Because look, after all, this was not a criminal trial. You can call a job interview, but this is about politics and power, and one side has the votes and wants to get someone on. And it’s like I feel… I hate to say this, all’s fair in love and war in Supreme Court confirmations.

Anne Milgram:

But didn’t they treat her like she was on trial? I mean, they had a criminal prosecutor questioning her. And then, they treated him-

Preet Bharara:

Who was not neutral.

Anne Milgram:

Who was not neutral, who I think was trying to impeach her credibility, make her look like she hadn’t always been forthright in telling the truth. Yeah, even if I don’t think she was effective, but I still think I think she was competent. But then, when it came to Kavanaugh, he was not on trial, and he’s the one looking for the job.

Anne Milgram:

And so, to me, there was just something that bothered me that I thought was unjust and unfair in the way that it ended up rolling out with this woman, who again, I think she had an incredibly difficult job in the sense that she didn’t know… some of what she was doing was asking for facts, some of which was trying to impeach.

Preet Bharara:

Yeah. She was doing the basic initial inquiry on national television.

Anne Milgram:

Five-minute increments on national TV, right.

Preet Bharara:

In fact, at the end of the testimony of Dr. Ford, this was a shocking moment to me, it made me like her even more, Rachael Mitchell, which she essentially said, “This is not the best way to go about doing this inquiry herself.” So, she bailed on the whole process herself.

Anne Milgram:

Yeah, which to me is an argument of why she shouldn’t have taken it in the first place, because there’s no doubt that she knew, look, this is the process. It’s five minutes to you, five minutes to them. And if she didn’t know that, then she’s not competent, right?

Preet Bharara:

It’s interesting, right? Suppose that she was on the other foot, you’d be a natural person that someone might ask to come do such questioning because of your experience and your professionalism, would you have taken the job?

Anne Milgram:

I would not have taken the job. In this circumstance, if the job was as it was set up yesterday, the answer’s no. If you could convince them to have a different process and a different way to question witnesses, the answer is, maybe, but it was set up in such a way yesterday that I think it was incredibly problematic.

Preet Bharara:

So, Dr. Ford testifies for some hours to wrap audiences around the country and maybe the world, and everyone thinks she’s credible. I mean, when I say everyone, I mean, pretty much everyone other than Donald Trump Jr. perhaps. And there were even reports by the way, if you believe them, and I do, that Donald Trump watched the hearing and watched her, and was irritated that he hadn’t gotten a heads up that she would appear that credible, which is saying something.

Preet Bharara:

And Chris Wallace on Fox News went on television saying, “This was devastating.” I put out a tweet saying she was credible, and it’s devastating. And a lot of people, I was texting a lot of folks and maybe you were too because this was what we were consumed with yesterday, that the Kavanaugh nomination was really in trouble. And how is Senator Collins going to vote for him after this testimony?

Preet Bharara:

How is Jeff Flake going to vote for him after this testimony? And then, there’s a break. And then, in comes Brett Kavanaugh who had done a fairly meek, nice guy interview on Fox news for which the President apparently had criticized him. What did you expect cabinet to be like when he came into that room?

Anne Milgram:

I did not expect him to be as he was. I didn’t think-

Preet Bharara:

What did you expect him to be like?

Anne Milgram:

So, I thought he was going to… I thought a couple things. One, I thought he was going to be a lot more humble than he was. Second, I thought that he was going to address much earlier in his comments, her, Christine Blasey Ford and her allegations. I was really surprised that it was 15 minutes of-

Preet Bharara:

About himself.

Anne Milgram:

… about himself, right? And make no mistake, about his resume, about him being under attack and him as being the victim in all of this. I was surprised by that. Also, I tell you this, I didn’t expect him to yell. Look, and I personally agree with you, when you walk into the arena in the Supreme Court, you’re a gladiator. This is a process where anything can happen and everyone’s life is fully on display, but I expected him to have a judicial demeanor.

Anne Milgram:

I expected him to be above all, professional. So, I was taken aback really in the first five minutes, and what did you think?

Preet Bharara:

I was floored. But then, I also thought… I don’t mean to make myself sound smarter than I am, because at hindsight, it’s 2020. And so, maybe as he was testifying, I remembered some reports that I had read, one that Donald Trump apparently had called him, and without criticizing his Fox News performance, told him-

Anne Milgram:

To fight.

Preet Bharara:

… to fight, and that’s what Donald Trump likes. And as much as obviously this is in the balls in the senate’s court, it’s in Trump’s core too, in my view and talking to various people-

Anne Milgram:

In terms of whether or not he would withdraw his name.

Preet Bharara:

Correct. You need Donald Trump’s support. Even as a technical matter, you need senators to vote. And I believe earlier in the week, based on talking to people who have talked to people, whatever that’s worth, that Donald Trump was in a holding pattern and was equally prepared, depending on how the hearing went, to back Kavanaugh to the hilt, and also prepared to throw him overboard and get somebody else.

Preet Bharara:

And so, as we often hear this phrase when we’re talking about politics these days, whether it’s cabinet officials or the press secretary, the President, they’re often performing for an audience of one.

Anne Milgram:

Right. I agree. Yeah.

Preet Bharara:

And so, a little bit, he was doing that. And then, the other thing I thought of was the obvious example and precedent for this 27 years earlier was Anita Hill and Clarence Thomas, and you had a similar situation with Anita Hill.

Anne Milgram:

Who gave almost the same speech, yeah.

Preet Bharara:

He was incredibly forthright, seemed compelling, seemed credible. It was before iPhones and texting, but I assumed people were doing the same thing that you and I were doing yesterday, saying, “How in trouble the Thomas nomination was,” and then he came out swinging really, really hard. Here’s my question to you, how many times do you think Brett Kavanaugh in the last four days watched the clip of Clarence Thomas’ testimony?

Anne Milgram:

I was surprised and watching the two clips together that the language was so similar.

Preet Bharara:

Right. I mean, some language [crosstalk 00:28:23].

Anne Milgram:

Right. Some language was different, but some language was incredibly similar. I didn’t do this in high school. I didn’t do this in college. I’ve never done this, and just these outright, very angry-

Preet Bharara:

The conspiracy theory, yeah.

Anne Milgram:

The conspiracy theories, the very political making this about pure, about politics. And I think you’re right. I think Trump was the audience of one. And the playbook is always beyond the attack, take the offensive, and even where I don’t think it’s credible, a lot of the allegations he was making, he threw a lot of allegations out there yesterday about-

Preet Bharara:

Revenge for Bill and Hillary Clinton.

Anne Milgram:

Yes, revenge that the Democrats had somehow coordinated the 2012 and all these prior acts, outcries by Christine Blasey Ford. I mean, there was a really incredible thing. Also, even I thought saying to the Democratic senators, “Well, maybe you have a drinking problem,” right? Maybe we all drink too much. Just-

Preet Bharara:

Right. There were moments of Brett Kavanaugh’s testimony that I will admit, I found compelling. And when he mentioned his daughter-

Anne Milgram:

I agree, that was-

Preet Bharara:

… and the first time he choked up. If you’re a human being, I think that is affecting.

Anne Milgram:

I agree.

Preet Bharara:

I thought that that was genuine.

Anne Milgram:

I thought what was also genuine was his anger, right? And so, different people can see the anger coming from different places, but I don’t think anyone could have watched that and not see that he was incredibly angry.

Preet Bharara:

Well, someone said to me, he said, “If you had been accused of something you hadn’t done, and let’s say some of those accusations included involvement of gang rape of women, which I have not done, and I had to defend myself in public in connection with being appointed to this office, I’d be really angry too.”

Anne Milgram:

Yeah. I think everyone would be angry.

Preet Bharara:

The question is, should I have-

Anne Milgram:

Right.

Preet Bharara:

We can talk about our ultimate view of whether or not he did it or didn’t do it. But his anger, I thought to a certain audience, was probably really compelling, wasn’t it?

Anne Milgram:

I agree. What I didn’t think was authentic were some of the conversations about how much he drank and what his behavior was like when he was young. But in terms of the pure anger and really feeling, look, I believe sitting here, that he feels like, I’ve worked hard on my life. I’ve gone to school. I don’t deserve to be in this position where I have to answer these allegations. I personally believe, look, you want to be a Supreme Court justice.

Anne Milgram:

You sit in that room, you answer the questions, and it’s fair game, but he was authentic I think on that. That being said, I think he did use his anger in some ways to avoid answering questions. And so, I don’t think by saying, “Look, yeah, he was an angry guy.”

Preet Bharara:

Right, which made it smart.

Anne Milgram:

It made it smart, but it’s also… it’s smart in some ways, look, sad in other ways that people weren’t able to effectively question him beyond that anger. And I think we saw a lot of back and forth where I don’t think a lot of senators broke through that to the ability to get him to answer questions. But there were a number of ways in which I did feel like he walked in there angry, guns a blazing, ready to throw accusations at the Democratic senators.

Anne Milgram:

And it completely changed the tenor of the hearing completely.

Preet Bharara:

But there’s a psychology of drama. I don’t think that’s an official term that I would always think about when we talk to prosecutors in my office, you have to see what’s going on in the room. And there’s an atmosphere in the room and sometimes to your disadvantage, you have to change it, right? And I have seen prosecutors mess this up. I remember being in a courtroom and a prosecutor talking about a terrorist case in which a lot of people died.

Preet Bharara:

And jurors were crying hearing about the victims, and the defense lawyer got up there, and the first thing he should have said, and this is not in any law book, the first thing he should have said to change the atmosphere of the room and to show that he had some human emotion sympathy was, “I weep for the dead people too.”

Anne Milgram:

Yes, yeah. And I’m sorry, yeah.

Preet Bharara:

And I feel terrible for their families and I’m sorry. But we have to understand is my client didn’t do that. Instead, he got up there and started yelling at the government. And this is a classic example of there was a mood that was in favor of Dr. Ford and he had to change the mood in the room. We saw it a couple of times actually later when there’s a tension exchange between some senators when after Lindsey Graham had his full freak out.

Preet Bharara:

I forgot who went next who said, “Should we take a minute?” Because sometimes you need to take a minute before going on. But in various ways as we see from the vote that we anticipate this morning, it was effective.

Anne Milgram:

It was effective, and it was particularly effective I think for the Republican senators on the Judiciary Committee who all jumped in to say, “Yeah, you’ve been wronged,” right? I mean, it became a parade of this, “I’m so sorry, you’re going through this.” And it was a very interesting dynamic that flipped I think pretty quickly. At least Mitchell was doing the questioning of him, and all of a sudden, the Republican senators started to jump in.

Anne Milgram:

And it really became campaign speeches about why this is a Democratic hit job on this highly qualified nominee, and it did flip the conversation.

Preet Bharara:

Passion matters, no defense lawyers. Prosecutors usually win by being even-tempered, even demeanor, facts and the evidence, ma’am. And defense lawyers, they don’t have it on their side. I don’t think they fully had it on their side here, it can be very effective in court or in a congressional hearing by substituting tremendous passion, anger, belief. I mean, I saw and I knew Lindsey Graham when I worked in the senate and actually liked him very much.

Preet Bharara:

And I saw a reporter yesterday, so he’s been covering him for 20 years. He has literally never seen Lindsey Graham this angry. Now, you can say the anger is misplaced and you can say it’s wrong. And some people say he’s a little too close to Trump or he’s become unwound because his best friend in the senate, John McCain, has passed. But it is true that that anger was genuine.

Anne Milgram:

Yeah, yeah, I saw it too.

Preet Bharara:

So, we’ve already been talking for a while, and we could talk for a lot longer. I want to do some big picture questions. One is, on the process yesterday, do you find it interesting? There’s an observation I had when I woke up this morning, and other people have made it too, that Dr. Ford, woman, was successful and found to be credible I think, by being what? By being calm-

Anne Milgram:

Calm, thoughtful.

Preet Bharara:

… nice, thoughtful, pleasant-

Anne Milgram:

Solicitous. Yes.

Preet Bharara:

… solicitous, deferential, right?

Anne Milgram:

Yes.

Preet Bharara:

And Brett Kavanaugh looks like he was successful in various ways given the vote probably, by being obnoxious, loud, arrogant-

Anne Milgram:

Arrogant, dismissive, completely. Cutting off senators, asking them questions instead of answering questions. I mean-

Preet Bharara:

What does that say to women? Some of whom I’ve talked to and have made this observation to me, what does that say about the state of play for professional men versus professional women and public perception of that?

Anne Milgram:

Of what our expectations are, women versus men in the workplace? Completely. And I think to just take it one step further what a lot of people have said, and I agree with this, is that if she acted the way he acted, we wouldn’t even be having a conversation about her being credible.

Preet Bharara:

We wouldn’t.

Anne Milgram:

And so, I think so much has changed in the last year or two with me too. And what’s changed profoundly is it used to be he said, she said, we believe him, or the tie goes to him. The assumption is that he’s right. Nationally, I think we’ve seen that really flip in this conversation about, “Look, it’s not fair and it’s not right, and we’re hurting women, not just the assaults and harassment, but also their ability to work,” right?

Anne Milgram:

At the end of the day, women having an equal opportunity to be in the workplace, that is changing nationally. I don’t think it’s changing in the US senate. And so-

Preet Bharara:

Exactly.

Anne Milgram:

Right? And so, one of the things I saw yesterday was I was sitting there thinking, “This, to me, is out of sync with a lot of where we are in America right now, but it also just shows how much work we have left to do that this is what we expect of her, and we’re going to allow him to potentially go on the United States Supreme Court having acted I think pretty terribly.”

Anne Milgram:

In the workplace, I think if someone who… and I run an office of 9,000 people, if someone came in yelling and screaming, I would have said, “Look, let’s have a calm conversation, like this isn’t the way we address each other.” And the fact that he was so successful in doing that, I mean, it’s hard not to be troubled by that, I think.

Preet Bharara:

Do you think we would be in the same position this morning with the vote if the order had been flipped? If Kavanaugh had done first-

Anne Milgram:

If Kavanaugh went first and she went second?

Preet Bharara:

Yeah.

Anne Milgram:

So, I want to hear what you have to say on this. But 100%, I think that he could never have done what he did and come in yelling and screaming had he gone first. I think it would have set this up very differently. And then, she would have been the last person that they heard. And it does make a difference, and I want to hear you on this too.

Preet Bharara:

What I think is fascinating about that, and I agree with you, but what’s fascinating and troubling about that conclusion is how much in life, in particular in legal proceedings, congressional proceedings, depends on emotion, drama, momentum, order, because the facts and the law would have been the same, right? The standards would have been the same. But why should it be that there would have been a different result based on someone going first or going second?

Preet Bharara:

So, that’s my observation. One of the last big picture questions is, there has not been a lot of attack on the credibility of Dr. Ford. And so, that leaves you with a peculiar feeling in your head, which is, how do you square the fact that Dr. Ford, as Chuck Grassley himself said, was credible? He tends to believe her. But then, people also believe Brett Kavanaugh, and I saw someone say yesterday, when you think about this, “We are left with the real possibility,” right?

Preet Bharara:

And not everyone thinks this is true. Some people think Brett Kavanaugh is straight up lying. But we are left with the real possibility that Dr. Ford was sexually assaulted by Brett Kavanaugh with his friend in the room and that he was either too drunk to remember it or it was, as my wife actually has said and concluded, maybe this was such a common thing that these guys did back then, that it made no indelible impression on his hippocampus.

Preet Bharara:

And so, he’s being genuine when he’s angry saying this didn’t happen.

Anne Milgram:

So, I think… And I’ve heard that too. And I think, to me, my personal view is that if there’s any potential that he did sexually assault her, then that should sway the committee vote, right? And whether it sways the committee vote in honor of having a real investigation first-

Preet Bharara:

So, what is the truth?

Anne Milgram:

I think the truth… here’s where I have a problem with some of Kavanaugh’s stuff. I think he overplayed the choirboy hand. To me, it’s very clear, even if you just use the evidence he gave like the calendar, right? The skis, likely meeting brewskis or these conversations about him throwing up, the evidence that he cites too shows that he was an excessive drinker when he was in high school and in college, and there are a lot of witnesses who confirm that.

Anne Milgram:

So, to me, it’s just the thing I find incredible is, I was a choirboy, and yeah, I had a couple of beers. I like beer, who doesn’t like beer? Everybody likes beer. Senator, do you drink beer, is really masking the fact that I think there are real credibility issues with how he has come forward. And to me, the question is both the truth of the allegations. It’s also the demeanor and character of the person who would go on the court. I just am not prepared to say and just give him this walk of he doesn’t remember anything because he was drunk, and he’s not even willing to say he was probably drunk.

Anne Milgram:

I would find that a lot more credible if he’d come in and said, “Look, I drank too much. I behave badly. It’s possible I forgot something, but nothing in my memory or recollection, or in Mark Judge’ is consistent with that.”

Preet Bharara:

And I tend to agree with all that. Did you find it a bad look for senators to be extensively questioning Brett Kavanaugh about his yearbook page? And I get the point, but then, I follow and listen to what people on the conservative side say, and they poke fun at this idea that that you’re questioning Brett Kavanaugh about the meaning of words that were joking references to flatulence in the yearbook. Is there something to that criticism?

Anne Milgram:

I think you’re asking the right question, which is, can it only be she’s telling the truth and he’s not telling the truth? And so, that’s the conclusion, or can both things be true? And I think the question is, do we have enough support? Is it just enough for him to say, “I didn’t do it, I wasn’t a drinker. Nobody else can say I did it”? Isn’t that a little bit of this he said, she said piece? And then, doesn’t that say that the tie is going to go to him?

Preet Bharara:

Yeah. Well, because people keep confusing this idea because they have a particular view on wanting him on the court or not wanting him on the court. And so, the people who want him on the court are applying the criminal standard and saying that Lindsey Graham at one point said correctly, I think that based on what we’ve heard from Dr. Ford, you would not be able to get an arrest warrant. You wouldn’t be able to get a search warrant because it’s 36 years earlier.

Preet Bharara:

But you would based on the testimony of Dr. Ford and other things, especially if you’ve done an investigation, decide at your company not to hire the guy, or decide, as a White House, not to nominate the guy. I mean, that’s the whole reason why we do background checks and they do vetting in the first place. And with respect, I mean, I guarantee you, by the way, I’ve never heard anybody say this, I guarantee you, had the White House come across these allegations in the vetting process, right, and they heard rumors about these things, because I helped vet people too.

Preet Bharara:

They wouldn’t have nominated him. And the idea that he deserves a spot in the Supreme Court, unless there’s proof beyond a reasonable doubt, is nonsense, because these guys themselves, with Mitch McConnell himself, Lindsey Graham himself, would never have allowed or recommended it to go forward if stuff was known before the nomination happened. So, what’s going to happen?

Anne Milgram:

So, I was looking at Senator Flake to see what he did. He, this morning, said he would vote for the nomination. It really does, I think, now come down to senators Collin and Murkowski. And I expect right now, I think he will go through. And I think it’s close but it’s possible that they will call for an investigation and they will delay it. But I think given this momentum and what we saw yesterday afternoon into this morning, and this deep desire to push ahead, I sit here thinking that it’s a very real possibility.

Anne Milgram:

I would not say it’s 100%, probably more 60/40, 65/35. But-

Preet Bharara:

I stopped predicting. I said last night, “It doesn’t worth anything,” because I thought one thing on Sunday, I thought something different on Monday. I thought something at lunchtime yesterday and something different at the end of the day. So, I agree with you, it’s likely to happen. And then, the issue I thought that someone said, “Well,” and we’re going to end on this, is if anybody who thinks… I forgot who said it. But anybody who thinks this is just about whether cabinet gets on the court or doesn’t get on the court, is not considering the whole picture.

Preet Bharara:

Because what this is also about is whether or not 300 something million people in America will forever, at least regeneration, have an altered view of one of the branches of government.

Anne Milgram:

Yeah. And I actually think two of the branches of government, right? Because, yes, the United States Senate, I do not think… I suspect many people will be dissatisfied with the Senate, and really rightfully so in how this has come out, and have a lot of concerns about how political this is. The second piece was, what about the court, right? I mean, the court is always the arbiter of… the court tells us what the law is. And if they’ve lost a lot of legitimacy, we’ve seen that.

Anne Milgram:

We saw that after Anita Hill. We saw that after Bush v. Gore. This is a huge hit to the court. And even if he gets on, you’re going to have someone who gets on with multiple sexual assault allegations, who basically yelled and screamed in a Senate hearing room to get on. And I think it’s hard not to… I want to know what you think about this, but it’s hard not to, as a lawyer who really believes in the importance of these three branches of government and Supreme Court, it saddens me that we’re about to walk even further into a world where people are going to question the legitimacy of one of our most important institutions or two of them.

Preet Bharara:

Yeah. I think the whole thing is sad and traumatic, and anybody thinks that anyone has won, is wrong. No winners here. Anne Milgram, thanks again for being on the show.

Anne Milgram:

Thank you.