Please enjoy the transcript from the CAFE Insider episode from 01/14:
Preet Bharara: From Café, welcome to Cafe Insider. I’m Preet Bharara.
Anne Milgram: And I’m Anne Milgram.
Preet Bharara: How are you Anne?
Anne Milgram: I’m good, how’re you doing?
Preet Bharara: How was your weekend?
Anne Milgram: It was great, a little cold, but traffic.
Preet Bharara: Mine was very sad. It began with a memorial service that I attended for someone who I’d hired at the US Attorney’s Office. But there was a lot of outpouring of support for the family so it was a warm event, very sad. But a lot of a lot of great people there. I think there were a thousand people there. The other thing I did was I spent more time in front of a microphone and recorded the first half of my forthcoming book.
Anne Milgram: Wow.
Preet Bharara: Doing Justice.
Anne Milgram: It only took 10 hours to record the first half of your-
Preet Bharara: Yeah, I talk really, really fast.
Anne Milgram: Wow.
Preet Bharara: No, no-
Anne Milgram: [crosstalk 00:00:45] It’s a pretty long book, I love it.
Preet Bharara: Then they slow it down, then they put it into a baritone, so it’ll be more salable.
Anne Milgram: What does that sound like?
Preet Bharara: It sounds a little rate great. It sounds great. I don’t know they tell me [crosstalk 00:00:58]. We’re gonna finish next weekend. But so we have-
Anne Milgram: Congrats.
Preet Bharara: … a million things as usual.
Anne Milgram: Yeah. Let’s jump in.
Preet Bharara: To talk about. We have, among other things is New York Times article that’s getting a lot of attention about how Donald Trump caused the FBI to decide to open up a counterintelligence investigation, because they thought he might be working for the Russians. There’s a Washington Post article because there’s a fierce competition between those two newspapers to outscoop each other. Right?
Anne Milgram: [inaudible 00:01:23] arguing that the President would not allow the interpreter who was President during conversations with Putin to talk to other people in the executive branch, and also require that the interpreter destroy notes and so no one has any idea what was said during those five meetings, conversations with Putin during last two years.
Preet Bharara: Then we have the reporting that the Presidential lawyer team is going to try to assert executive privilege to prevent various aspects of an eventual Muller report from becoming public. We haven’t even talked yet about the fact that the next Attorney General of the United States nominee is up for hearings tomorrow and the next day, Tuesday and Wednesday. Then we have Michael Cohen coming to testify before the house government oversight committee on February 7th. Rod Rosenstein is leaving. Okay so it’s-
Anne Milgram: [crosstalk 00:02:10] That’s a lot. We’ll be here for the next day.
Preet Bharara: We’ll be here all week. What do you want to talk about first?
Anne Milgram: We have to spend a lot of time in the New York Times article I think, in the counterintelligence piece. Should we start there?
Preet Bharara: Sure.
Anne Milgram: Can you explain to me and I think to our listeners, the difference between a criminal investigation and a counterintelligence investigation just to start us off, and then I have a lot more questions about this.
Preet Bharara: Yeah, well, there are a lot of differences, but in some ways fundamentally, for purposes of this, people have to understand that you open up a criminal investigation when you believe or have cause to believe that there has been a violation of a particular federal criminal statute. Just because you think someone has done something that’s unfortunate or yucky, that’s not enough. You have to be able to think of that statute, before you issue a subpoena to anyone in connection with a criminal investigation as you know, you have to actually put a statute number in the subpoena document whether it goes to a bank or it goes to a phone company for records or anything else. With respect to a counterintelligence investigation, it’s a little bit more murky and it’s a little bit more broad and amorphous, because the counterintelligence officials in the country, whether they’re at the FBI or the CIA, or any one of the other intelligence agencies, have a broader mandate to make sure that they understand the national security interests, and whether or not those national security interests are being undermined in pretty much any way you might imagine. And so in some ways the threshold for opening something like that is less specific, although it can be more far reaching.
Anne Milgram: If you have a counterintelligence investigation, is there more that you can do under that than you could do under a criminal investigation?
Preet Bharara: You’re less impeded by various authorities, than if you have a traditional standard, soon to be governed by a court overseen by a court, and defended by adversarial process by a defense lawyer, so it’s different in that way too.
Anne Milgram: If we look at this timeline, and again the New York Times article basically says that the FBI was so concerned about what was happening after Comey was fired in May of 2017 that they opened up a counterintelligence investigation, that’s essentially the reporting. The timeline and I just want to talk through this a little bit, is that the initial … the investigation, the initial … which was a counterintelligence investigation I think, we would call that Rosenstein’s letter is done under counterintelligence-
Preet Bharara: [crosstalk 00:04:33] Yes, there was already a counterintelligence investigation in place about Russia.
Anne Milgram: That starts in July 2016. That comes out of leads related to Papadopoulos having the conversation with the Australian diplomat, talking about these hacked emails, potential access to Hillary Clinton’s emails. So that investigation starts. Comey is fired in May of 2017, and after Comey is fired, that’s when this additional counterintelligence investigation starts into the President.
Preet Bharara: Reportedly.
Anne Milgram: Reportedly right, that’s a great point. But the initial investigation was a counterintelligence investigation focused on Russia and Russia’s influence in the election, and included the possibility of course of within that you could have a criminal investigation of obstruction of justice of the President, for example, or any other piece. The question I was asking is, did they really need to do that? Or did they already have a vehicle through this investigation? Because it’s a pretty extraordinary step to open up a counterintelligence investigation to the President, and I assume they would have had to have significant predicates and written memos and all that. But they already had this existing investigation, so why not just use that existing vehicle?
Preet Bharara: I think you raise an excellent point, and not to sound like I’m minimizing this, but I do have some skepticism about the reporting for the reasons you describe. It’s also odd to me that if there was a specific decision to open up something that’s concrete, discreet and different from what was already in place, why that took this long to be known. You have Andy McCabe who’s been accused of leaking about a lot of things I’m not sure that he has. You have all sorts of people who would have had a reason to talk about this given how many other things have come out. It’s also not clear from the New York Times article if it led anywhere, if it’s still going on, if it was then absorbed into the first thing that you described.
Anne Milgram: Into the Muller, yeah.
Preet Bharara: Yeah, I think it’s a sensational fact that there were people at the FBI who articulated probably in some way, could it be that the President is working for Russia? During that period of time that was remember, it was nuts. The FBI Director-
Anne Milgram: It was chaos, yeah.
Preet Bharara: The FBI Director had been fired. The President has a visit with two Russian officials, says to them directly, “I got rid of that nut job and it’s taken some pressure off.” He has that interview with Lester Holt on NBC, and all hell seems to be breaking loose. And in that time period also there’s been reporting that Rod Rosenstein, I think around that time period, suggested he says and other say later jokingly suggested that maybe they should think about invoking the 25th amendment, and they should think about recording the President surreptitiously.
Anne Milgram: To show that he’s unfit for office.
Preet Bharara: I have no doubt that there were people of that time who articulated it in some way this concern, is the President an asset of Russia? I don’t know-
Anne Milgram: Is he working for us interest or for Russian interest?
Preet Bharara: Yeah. But I don’t know like … What do you think? I don’t know that they literally opened up with separately documented counterintelligence investigation that had Donald Trump’s name at the top.
Anne Milgram: Yeah, I mean, this is the question I have, because I think they already had this vehicle, they had a counterintelligence investigation into Russians involvement in the election. They were looking at the President and the President’s campaign, according to reporting as to their involvement with Russia. And what I think this is asking is, why is the President … and we’ve talked about this a little bit before, but why is the President doing this? Why is the President so pro Russia? Russia is clearly an American adversary, and I think you’re right it probably just got to a boiling point after Comey is fired. And he made these explicit statements, and so they were asking these questions. But it’s not clear to me that they couldn’t have operated under the existing investigation that they had. It feels to me like that’s what I would have instinctively done. And so I’m wondering … And again, we don’t know the inside. We have to say that. We’re reading this public reporting, that is pretty vague, and there are a lot of unanswered question.
Preet Bharara: Right. I think it’s also probably less conducive to leaking if you can conduct the same investigation under the auspices of that which was already in place. But here’s another interesting aspect of this. If you open up a counterintelligence investigation, specifically about the President and whether or not he’s working for Russia, do you believe that the FBI would have had to notify and give a heads up to the Gang of Eight and the Gang of Eight, for those of you don’t know, are literally eight members of Congress. It’s the majority leader, the minority leader in the Senate, it’s the speaker and the majority leader in the house, and then the chair and ranking member of the two intelligence committees.
Anne Milgram: I think so, that’s the norm course, that you open up a counterintelligence investigation and that you would brief the Gang of Eight on something like this. Now that’s a really interesting question that was not addressed at all in the New York Times reporting. But one other thing I think we should talk about is just a little bit of the writing on Lawfare which is a very interesting national security blog, and I don’t want to say it’s too wonky but it’s a little bit wonky. It’s a little bit of an inside baseball website. It’s excellent.
Preet Bharara: That’s a compliment Ben Wittes.
Anne Milgram: Yes, it is a compliment. And Ben actually who I really don’t know personally, but he wrote a great piece about the New York Times reporting and I think it’s worth our talking about, because a lot of our listeners might not, and it was lengthy and pretty legalistic in parts. Again, that’s a compliment to you Ben. But let’s just talk about that a little bit.
Preet Bharara: Yeah. People have been drawing this distinction between the obstruction investigation and the collusion investigation.
Anne Milgram: Meaning that the there’s an investigation into whether or not Russia influenced the election and the campaign colluded, and separately the President engaging in obstruction of justice to stop that investigation or to prevent people from cooperating with it, and seeing them as separate things.
Preet Bharara: And so he makes the point that they’re actually more melded together. And it’s possible that as he put it, the obstruction is the collusion.
Anne Milgram: Right. That the President’s actions obstructing was part of his work cooperating with Russia to thwart the United States, to impact the election and also to essentially be assisting the Russian government.
Preet Bharara: Yeah, I think there’s something to be said for that.
Anne Milgram: It’s a really interesting question. I would just ask you this and I think a couple of other folks have done this, can the President of the United States be investigated criminally for obstruction of justice for firing Comey, when the President has within his authority the ability to fire Comey. So the President can fire the director of the FBI, that’s within his lawful authority. The fact that the fact that he has that authority, and we’ve heard Giuliani and others say this, that means that the President can’t be investigated for obstruction. That seems completely wrong to me but …
Preet Bharara: I think it’s a baseline view, that it is true that when you have the authority to do something, you need something more to show that it violated some law. But as you and I both know, there are lots and lots of things that people have the authority to do. And depending on what other facts you can prove, it could make the official otherwise lawful action illegal. So for example, a politician votes on bills. That’s part of the authority of the politician, elected official. If the politician, the elected official was paid a bribe to make that vote, then it’s unlawful. In the same way that the example we’ve given a lot, is put aside the issue of obstruction, but let’s say the President decided to fire the director of the FBI or someone else for money, even though he had lawful authority to fire the FBI director, you committed a crime.
Anne Milgram: Yep, and you can be charged for that crime. I agree.
Preet Bharara: So there are others. I mean, it’s a little harder on obstruction, but if you have a lot of evidence that the person was doing it and had the mental state of trying to stymie an investigation, then I think that’s absolutely chargeable. There is some debate now about whether or not the FBI if they did what the New York Times says they did, overreached. Now my own view is, I have no idea, because I’m a little skeptical of the reporting in the first place. And I don’t know that they did what is being described. Opening up some separate counterintelligence investigation with all the bells and whistles.
Anne Milgram: I agree with you. And I also think it’s hard for us to know without knowing what the evidence and information was that they were considering at the time. But I think this is a real question as to whether or not this was an appropriate action. And again, without knowing more and without knowing the accuracy of the reporting, it’s hard for us to say. But it is very clear that this is a point of contention as to whether or not this was the right thing to do.
Preet Bharara: Right.
Anne Milgram: My biggest takeaway with the New York Times article is that it’s incredibly interesting, and it’s unbelievable that we’re having a conversation about the President of the United States being an asset of the Russian government, a US adversary. But beyond that, it feels to me like there are a lot of unanswered questions and a lot more that we should watch to see what we learn about.
Preet Bharara: The Washington Post article is related to this on the issue of whether or not the President has tried in appropriately to guard the conversations and keep secret the conversations he’s had with Vladimir Putin, and if obviously, you conduct foreign policy and there needs to be some zone of confidentiality about that. But in every other case that we’re aware of, we’ve had people on the show who are involved in intelligence matters who know about this. We had Jeremy Bash on right after the Helsinki summit last year. There’s a reason why you want your Secretary of State, and you want your National Security Council, and you want other people to have an understanding of what happened in the conversation. Trump seems to have gone out of his way not to let people know to meet without, in one case without any American present at all. Relying on the Russian interpreter, what’s going on?
Anne Milgram: Yeah, so I think we should break this into two, because the first piece of this is when you or I would take a high level meeting, and it’s completely different. We’re not the President United States. But when we would take a high level meeting with someone who’s potentially adversarial, that meeting it never took place in my office without a witness present period. Whether it was a member of law enforcement or a senior member of my staff. Like the idea of doing a meeting, that the President of the United States would do a meeting with the President of Russia by himself with no one else present repeatedly, that itself is stunning. And I think we should just stop on that. Because number one, it protects you, you or me or the President of the United States have somebody else in the room.
And number two, it gives insight into the executive branch. If the Secretary of State is sitting with the President, than the Secretary of State, when they go out and they have conversations with the Russian ambassador they’re all on the same page, they know what’s transpired. And so the first part of the article that really surprised me was what are you doing to sit in those meet- You’re under … and keep in mind points in time when the President is under criminal investigation for his relationship with the Russians you walk in by yourself.
Preet Bharara: That’s what’s crazy to me, and maybe crazy about the psychology of this President, unlike anyone else you’ve ever seen led the country or any institution that I’m aware of. It would be bad enough if a President did that as a … It would be a breach of protocol, it would be a breach of prudence. There’s lots of problems with it. In the very context in which people are running around incredibly saying that he seems overly friendly with Russia, that he backs Vladimir Putin, that he credits Vladimir Putin’s denials of interfering with the election over his own intelligence community. In the face of all that, against that background, to then still cause more questions to be asked by having these private meetings and trying to shield them from even other officials in your own administration, causes those alarm bells to ring even louder and he doesn’t care.
Anne Milgram: Did you catch the part of the article that was talking about how the American officials were left to using … They have intelligence on the Russian government, so they’re using their intelligence sources and means to find out what the Russians are saying about the meeting so that they can actually know what happened, as it will impact the United States of America. I mean, it’s a stunning thing.
Preet Bharara: It would be like if you had those meetings that you’re talking about with a high level defense lawyer for a high level target, and you had those meetings alone, and you kept your senior personnel out, and you kept your trial team out, and then you refuse to tell them what the discussions were. And then later they had to try to find out what you their boss said-
Anne Milgram: They have to call the defense lawyer.
Preet Bharara: Call the defense lawyer.
Anne Milgram: Yeah, it’s unbelievable.
Preet Bharara: And you are not the President United States correct? Important, very important [crosstalk 00:16:36] job, but not the President.
Anne Milgram: But really as astonishing to think about. And the other piece to think about is like I was trying to think, “Well, is there any legitimate reason why you would do this?” Why the President of the United States would do this, and I could not come up with one.
Preet Bharara: I guess there’s just, it could be a very heightened view of a legitimate position that I need to have some ability to have … I’m not saying I buy this, but I need to have some ability to have a private conversation with this important world leader in a way that he doesn’t have to worry it’s going to leak, because a lot of things leak and I got a leaky White House and the leaky NSC, I guess he thinks. And so I need to be able to take a stroll with Brezhnev, as would happen I think from time to time. But he’s taken it too far.
Anne Milgram: And then you expect the President to debrief his senior team and not to tell the interpreter to throw out their notes. I agree with you, but the way that this has happened, it’s hard for me to see …
Preet Bharara: Oh, no, I totally agree. I was just trying to come up some slender read.
Anne Milgram: And he said, just to give voice to his argument. He said that it’s necessary to develop a rapport. It’s also clear to me that it’s a little bit of a weird conversation about developing a rapport with a known adversary of the United States who has attacked our elections and continually attempts to undermine our democracy. That strains a little bit of credibility to me in a way that it might not if it was within America ally. But again, I am thinking about this from the adversarial context of you have to be incredibly careful under these settings.
Preet Bharara: The other possibility, I guess, in fairness to the President is maybe he wanted some confidentiality during the time when he was getting his annual review from his boss, Vladimir Putin, because I don’t know about you-
Anne Milgram: I was like wait, I don’t think the President of the United States has a boss.
Preet Bharara: Well, that’s I guess what we need to see. [crosstalk 00:18:26] The other issue that arises from this craziness is, is it appropriate for members of Congress to want to figure out, notwithstanding the opposition and the confidentiality cloak, to want to find out what happened in those conversations. And so the one person with respect to some of those conversations, who has an ability to know is the interpreter. Who is described in this article, and it’s put in a terrible situation and like many things-
Anne Milgram: And he’s a long term State Department employee.
Preet Bharara: And like a lot of things that Trump causes crises about, Trump takes an extreme position in some way and then it causes I think fair minded people in the opposition to have to also maybe take extreme positions. I think it’s an extreme thing to subpoena the interpreter who was present for a conversation between the President of the United States and another world leader, but they are contemplating it. And I guess there are pros and cons of that.
Anne Milgram: I think it’s an extreme thing too. It strikes me as a valid question for law enforcement to ask, in the midst of a counterintelligence investigation of the President, for the law enforcement to have a conversation with the interpreter about what took place. I would distinguish that from Congress having a conversation. Although I do think it strikes me as it is within Congress’s legitimate oversight authority, but it feels deeply problematic to me to have the President of United States who as you say is going to be in these meetings with world leaders. There could be times where there’s incredibly sensitive conversations that the President does not want to share with the broader public. And so my read of the reporting is that Congress, number of members of Congress are very aware of this precedent.
They might set by walking down this road of every time the President does something you don’t like, you call the interpreter and then say, “Show me your notes, tell me what happened?” But there is a way in which they could do this through private, and it could be highly sensitive national security information. You could do this through the Intelligence Committee in a non public setting. I wonder how they’re going to come out of it. But I do think this is something where they should pause deeply before they just start calling in an interpreter say,” Hey, what did the President do?”
Preet Bharara: I think they’re doing that. The reporting again this morning, as we were walking into the studio is that various members of the Intel Committee and I think the Judiciary Committee and maybe the Foreign Relations Committee are meeting and discussing the propriety of doing this. They had talked about it last summer when the democrats were in the minority, and that was obviously squashed by the Republican majority. But the problem is, and this will be true about 100 things during the Trump administration, that Democrats may take an extreme measure because in the context of Donald Trump being weird about confidentiality and secrecy, and seeming to side with Russia over America, on lots and lots and lots of things. In that particular context, it’s troubling and unfortunate, but reluctantly I think it makes sense to maybe subpoena the interpreter. The problem is going to be-
Anne Milgram: In this specific situation under these really unique facts.
Preet Bharara: Correct. But the problem is going to be that an administration or two from now, you’re going to have maybe republican saying with respect to a future democratic President, who actually is involving the State Department, is involving the White House staff, is being fairly transparent in some peculiar circumstance to embarrass a President for political reasons, they will be able to point to this precedent and say, well, we’re subpoenaing the interpreter because that happened before once, but the circumstances will be different, but they will have a winning political argument.
Anne Milgram: Right, I agree. I think you’re right, that this could happen hundreds of times. Because what we’re seeing … this norm busting that we’re seeing by the President is busting the norms that Democrats and Republicans have both followed for countless years. And now we’re talking about a new world in which the President Trump doesn’t follow those norms and what’s the right response to it? And it’s also not to say that it should be allowed to go unaddressed. And so I think that this is why this is a particularly thorny and complicated question of what do you do here? Under these circumstances, I agree with you. It’s pretty extraordinary and I would love to hear what the interpreter has to say. But again, it would be used as a hammer against future Presidents.
Preet Bharara: Let’s move on to the Muller investigation. I guess not move on but, a different aspect of the Muller investigation.
Anne Milgram: It’s come back yeah.
Preet Bharara: Some people think it’s ending soon. Some people think it’s not regardless, there’s this expectation and anticipation of a report, one of which will go to Congress, and there’s a concern that it may not be made public. And there were rumblings last week about the Trump legal team asserting executive privilege to prevent some or all of that report from every becoming public. Obviously, there’s a lot of problems with that. Do you want … shall we start unpacking there?
Anne Milgram: Yeah, let’s start there. I think it made sense to me that they were making that argument and starting to set it up, and they may even be testing it to see what the public thinks of the President saying, “No, you can’t release this information because it’s privileged by my work as President.” One of the issues that I think is really interesting about executive privilege, there’s a couple pieces. First is that executive privilege doesn’t apply before you’re the executive right? And so let’s start there.
Preet Bharara: Yes, good.
Anne Milgram: That prior to the President becoming the President there’s no argument that executive privilege applies. And I think it’s important for everyone to know that that there’s no court in America that that should allow someone to exert executive privilege, it just doesn’t exist.
Preet Bharara: And we know that a lot of the things that are being looked at with respect to this word that people use collusion, is about what, it’s about the campaign.
Anne Milgram: Yes and even transition doesn’t … it’s not protected during transition.
Preet Bharara: Correct.
Anne Milgram: You come to the point the President is sworn in January and after that, and that would cover a lot of this obstruction conversation, right? It’s Comey was fired when he was the President of the United States. There are a number of actions that I think the conversation with me about looking beyond Michael Flynn and not prosecuting Flynn. So there are things that are going to be covered. When it comes to executive privilege, it’s not as simple as I think the President and his team want to make it seem, which is everything’s privileged. Anything that happens related to the White House. It’s a pretty narrow sphere of things that are done for the purpose of giving the President advice so that you can deliberate in private without having everything go public. And, the President might be deciding for example between two options on some major international question, and you don’t necessarily want that debate to be made public, so you give the President some leeway.
Now that being said, there are countless examples where I think they have already blown through executive privilege. Where they have allowed testimony to take place, where they have had witnesses, White House employees question. And if they didn’t assert privilege for example. Don McGann’s multi hour conversations with them, you can’t now go back and say, “Well that’s privilege now.”
Preet Bharara: Don McGann the former White House counsel.
Anne Milgram: Right. And he’s reported to have sat for numerous hours with Miller’s team during the investigation. But he’s just one example.
Preet Bharara: But it’s not fully clear to me. And I think you raise an interesting point. Ordinarily, the time to raise a privilege point is the first time that information is going out from the White House to some third party. And even though the special counsel is within the executive branch, it’s going out to another authority. And you would have asserted it then. But the reports I’ve seen, and I haven’t seen the documentation suggest that at least with respect to some witnesses, and some information that was provided to the special counsel, it was done with the reservation of rights. And I haven’t looked at the most recent law today, but I suppose it is possible.
You could say, “We are providing these documents to you because we don’t think we did anything wrong, and we have an interest in being transparent and having you see that we did nothing wrong so you will go on your merry way. However we [crosstalk 00:26:00] reserve the right in the future, if you decide you’re going to paint us with a broad brush, and Congress releases this thing, we have an executive privilege issue. And we don’t think it’s undermined by sharing it with you, because you’re going to keep it close to the vest. But if you decide not to keep it close to the vest and send it to the whole world, we’re going to assert that, so I guess they have some argument about that.
Anne Milgram: What’s also interesting, though, is beyond those private conversations, which we’re talking about now, the President and the President’s lawyers have made an extraordinary number of public statements that relate to the issues upon which I think they will invoke executive privilege, which is incredibly complicated for a court. If Donald Trump goes out and says, “Look, I didn’t …” First he tells Lester Holt I fired Comey, it was related to the Russian investigation. Then he makes, a series of additional statement saying, “I didn’t fire him for that.” Giuliani and other lawyers on his behalf make statements. To then walk into a court and say, “Oh, the conversations about why I fired Comey are privileged.” That strikes me as a really … It strikes me as very disingenuous and really hard to make that argument with a straight face before court. We should also just-
Preet Bharara: It hasn’t stopped.
Anne Milgram: Right. No, and they will make it. And again this is a tool in their toolbox. And so I think we should expect them to beat this drum loudly. It’s also really important to know that routinely, courts have overcome executive privilege in criminal investigations. And so even in US versus Nixon, which was related to President Nixon, when they were seeking information. The courts are willing to basically say, “Look, it’s different when there’s a criminal investigation going on. This is a higher purpose, and executive privilege is not absolute.”
Preet Bharara: At the end of the day, there will be a balance that has to be done a balancing test. And on the one hand, you’ll have the importance of having private discussions and being able to get candid advice from your advisors. And on the other hand, you have whatever the degree of public interest is. And I can’t imagine a higher degree of public interest in understanding given all the focus and the high stakes investigations, and everyone on the edge of their seats, that there could be a higher public interest in knowing once and for all. So you have faith in the rule of law, and faith in our elections, and faith in this administration, not allowing the public to understand what the fruits of that investigation were. That’s a really, really high value.
Anne Milgram: Right. I agree with you. That’s why I think it’s possible that they’re floating a trial balloon publicly to see how do people react to this idea that the President, because keep in mind this means litigation, and that is not going to happen in a day. This means it’s going to wind its way through the courts, and this question of executive privilege would undoubtedly go to the United States Supreme Court, and that would take time and this is a real question in my mind. I personally think that the American public is going to want to know and it’s going to expect that they will know it’s the President of the United States that they’re going to have access to this report. And I personally expect that they will. I’m not sure how that happens but-
Preet Bharara: I think so too, do you think it’s a political disaster to look like you’re trying to prevent some of this information from becoming public if you’re the President?
Anne Milgram: I personally do for the mainstream of the United States. But the question is if the President plays solely to his political base, which is a small, but significant group of his followers, then there’s a way in which he can I think, frame this, as, this isn’t fair to me, they’re trying to harm my ability to be President, and his base might accept that. But do I think America generally will? I just, I don’t.
Preet Bharara: The last point on this breaking news again, about an hour before we came in here. As I said to you, there was a report and I haven’t seen all of it, that Bill Barr the nominee to be the Attorney General stated in some forum that he thinks that the results of the Muller investigation should become public. I don’t know how much weight that will have. If and when he becomes the Attorney General. It’s still the prerogative of the President and his white house team to decide what is executive privilege, but the Attorney General might weigh in on it.
Anne Milgram: Well, and it’s helpful to because the report would go to him as the Attorney General. And so it’s significant if he’s saying, “The report’s coming to me, and I think it should go public.” I think that’s an important point. Let’s talk more about Barr in a second, but before we move on from Muller let’s talk about a listener question related to Giuliani from Alicia who says, “At Preet Bharara really looking forward to hearing you and Anne discuss the week’s events on the pod. Thank you, Alicia. Especially Rudy getting to edit Muller’s findings. Let’s-
Preet Bharara: I guess that’s referring to a statement made by the President’s lawyer Rudy Giuliani, about how he should have a right to edit Muller’s findings as the tweet yes, no.
Anne Milgram: I could not agree more. I think Rudy’s been in private practice too long, where you often conduct audits of companies or you do an internal investigation where the internal investigation report is treated like an audit. In an audit, you do give a copy of the report to the leadership for example of a company and say, “Look, did we do this right or did misunderstand the numbers in a way that would have harmed our ultimate conclusions?” They still get to make the conclusions, but it’s saying like, look, are we … Is there anything that you see that’s fundamentally improper or wrong? Did we make a bad call? That is never ever the case in a criminal investigation.
Preet Bharara: Two more points on that. One is. the way to respond to the report is to have your own response.
Anne Milgram: Right, which they’ve said they’re drafting.
Preet Bharara: So you can say this is wrong and that’s wrong. The other way to make sure that the Muller report is accurate is to let your client come in for an interview. That’s part of the purpose of that as we’ve been saying for a month, to say look what were you thinking about these actions and what was in your mind when you did these other things so we can make a report accurate.
Anne Milgram: It’s a great point. This is going in to give a statement and to have a conversation with Muller’s team is the President’s one opportunity to say as clearly as possible, “This is what I was doing,” and that’s the opportunity, and if he doesn’t take that opportunity then the other option is to do exactly what you said, which is to issue a statement after the report comes out saying well here’s what I think. But you’re right to say that he would be waving the opportunity to have his version of events in that initial report if he doesn’t walk in and talk to them.
Preet Bharara: It strikes me as just silly posturing and silly rhetoric which we’ve seen a lot of. So Bill Barr … In some ways, we are at a disadvantage because we’re on the eve of the Bill Barr confirmation hearing in the Senate Judiciary Committee, which is supposed to happen Tuesday and Wednesday. And there’s been precious little, I mean some, but precious little by way of preview because everyone has been focused on all these other stories and all sorts of things happening with the government shutdown and the emergency so called emergency at the border. Anything we should preview in the Barr confirmation hearing, and obviously next week we’ll review it?
Anne Milgram: Yeah, I think there are at least two areas that I think are worth the senators really questioning Barr aggressively on. One is this memo that he did last summer to Rod Rosenstein questioning the obstruction of justice part of the investigation into the President of the United States. And it’s been reported that it was sent unsolicited, I would want to understand whether that’s true that he sent it unsolicited. I would also want to understand what he knew about the investigation at that point in time, because it’s pretty clear that like all of us who are commenting on the investigation from an external vantage point, it would be extraordinary to me if Barr actually had an understanding of the inner workings of the investigations. And you and I’ve talked about this a little bit, you ran a congressional Senate Judiciary Committee investigation, but I would be very surprised, and I’ve been surprised before. I’m not saying it couldn’t happen. But I would be very surprised if Barr sent that memo without having had a conversation with someone either in the White House or affiliated with the President, and the President’s allies.
And so I would want to understand how that memo came to be. I would also want to understand and I would do the litany of questions you and I would do with a witness on cross examination, which is were you briefed by Muller? No. Were you brief by any member of Muller’s team on the internal workings of investigation? No. Were you briefed by the FBI, the answer is going to be no, and that he did that memo with basically just his views of the world and his use of the law without having any insight into it.
Preet Bharara: I agree with all that and the other thing is the basis on which he will make the decision to recuse or not recuse, notwithstanding, writing that memo, and looking like he’s prejudged the investigation even though he wasn’t briefed on it, and how’s he going to answer it. And our friend, Walter Shaub who used to run the Government Ethics office, had a really interesting Twitter thread the other day, where he went through the Senate Judiciary questionnaire answers by Bill Barr and other recent nominees. And I think it’s very interesting. And I think if I were a Senator, I would drill down on this very carefully. The standard questionnaire that you fill out when you get nominated for a pennant confirmed position is you answer a lot of questions in a form so the Senate Judiciary Committee has information about you before you show up for your hearing.
So Barr on the issue of recusal wrote, in the event of a potential conflict of interest, I will consult with the appropriate Department of Justice ethics officials and act consistent with governing regulations. Which sounds like it gives him the leeway to do what Matt Whitaker did, and have conversation with appropriate Department of Justice ethics officials and decide differently. And he contrasts that with what Jeff Sessions wrote when he was nominated to be Attorney General. And in his questionnaire he wrote, “I will seek and follow the advice of the Department of Justice’s designated agency ethics official, if confronted with a conflict of interest in the performance of my duties.”
That’s in at least three ways different from what Bill Barr wrote. He says he will not only seek but he will follow it. And he says, not the appropriate Department of Justice ethics officials, but the designated folks.
Anne Milgram: Barr could come in and basically designate his chief of staff or someone who’s a political ally and say, “Okay, now you’re the ethics officer. And here’s how I want this to come out, which is not the way it’s supposed to work”. There are designated ethics officers who are experts in the governance and rules of the Department of Justice. that is one huge difference.
Preet Bharara: In a different context, when I was a US Attorney in the Southern District, we read those rules very carefully. And there were some issues I was required to consult with the department in Washington, and on some issues, I was required to seek approval. If I want to charge someone with terrorism, I had to get the approval of the National Security Division. I couldn’t get around that. If I went to bring a public corruption case, depending on the circumstances I had to consult. Consult doesn’t mean follow their advice. I could have gone a different way had I wanted to, depending on how you read those things, but so consult and follow are two different things.
Anne Milgram: Completely. And it’s worth pointing out what you note about the end of Barr statement, and I will act upon the governing principles. Which basically means I get to decide, [crosstalk 00:36:27] not the ethics officer, and so this is like on the Weasley answer scale, this is like a 10 out of 10 on the trying to look like you’re going to actually follow ethics rules. But basically this guarantees the way he’s written it, it guarantees that he’s going to decide either he’s going to appoint the person he wants to give them the answer he wants or he’s going to ultimately put his judgment on top of or over the ethics advice.
This to me is deeply troubling and particularly … I think we haven’t talked about Rosenstein leaving, but I think in light of the fact that it’s been publicly reported that Rosenstein may leave after Barr’s confirmed. I think we should be deeply concerned about the ability of Muller’s investigation to continue without disruption, and so this troubles me greatly.
Preet Bharara: Holy moly Anne we haven’t gotten to Michael Cohen coming to testify which I think has the possibility of being the most sensational circus like hearing we have seen in congress.
Anne Milgram: I would like to go and sit in the front row and listen.
Preet Bharara: Can we go?
Anne Milgram: I don’t know, let’s go. We could live tweet.
Preet Bharara: We should call some peeps. But we can talk about that more next week.
Anne Milgram: It’s gonna be explosive, I agree.
Preet Bharara: Because Michael Cohen has every incentive to vindicate himself. He has every incentive to throw the President under the bus in the much more confined and narrow purpose setting of federal district court. He decided to say that he acted at the direction of and in coordination with individual one, because there was no need to say anything more, other than create a predicate for your guilty plea, here unleashed, and he’s going to be asked questions by the Democratic members, which will serve up softballs for him to whack at the President. And again there’s-
Anne Milgram: What did the President know? What did he tell you? What did you say completely.
Preet Bharara: There’s lots of reasons to view all of his testimony with skepticism and suspicion because he has an ax to grind and because he’s a convicted liar. But boy, is that going to be some kind of television.
Anne Milgram: I agree yes.
Preet Bharara: Alright, so that’s all the time we have today for Insider, we’ll be back next Monday. Send us your questions to [email protected]
Anne Milgram: I love those questions, keep them coming, and we’ll do our best to answer them.
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Speaker 3: This is the Cafe Insider podcast. Your hosts are Preet Bharara and Anne Milgrim. The producers at Pineapple Street Media are Kat Aaron, Jenna Weiss-Berman, and Max Linsky. The executive producer at the Cafe is Tamara Sepper. And the Cafe team is 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.