Preet Bharara: From CAFE. Welcome to CAFE Insider. I’m Preet Bharara.
Anne Milgram: I’m Anne Milgram.
Preet Bharara: Hello Anne Milgram.
Anne Milgram: Hey Preet.
Preet Bharara: How was your weekend?
Anne Milgram: I was at the beach, the Jersey shore.
Preet Bharara: The great Jersey shore.
Anne Milgram: And my little guy turned five.
Preet Bharara: Congratulations. Happy Birthday.
Anne Milgram: Yes. Thank you.
Preet Bharara: Is he driving? I think in Jersey you can drive at five.
Anne Milgram: Not yet. Not yet.
Preet Bharara: I was supposed to be in New Orleans this past weekend on a father-daughter, before my daughter goes off to college, sort of bonding trip.
Anne Milgram: Oh, that’s great, but-
Preet Bharara: It was ruined, so we didn’t go because of the storm.
Anne Milgram: Yeah. [crosstalk 00:00:36]-
Preet Bharara: We decided to change our plans and drive to Boston. Great weekend.
Anne Milgram: Oh, Boston’s nice.
Preet Bharara: My daughter tolerated me for 48 hours.
Anne Milgram: Just the two of you.
Preet Bharara: Just the two of us.
Anne Milgram: What do you do at night? Go to dinner? Go to a movie?
Preet Bharara: Yeah, just dinner. But during the day, as listeners may know, my kids love history, so we went on the Freedom Trail, we got to throw tea into the Boston Harbor to imitate the Boston Tea Party. We learned a lot about that, and we went to the Kennedy Library.
Anne Milgram: Wow. How was it? I’ve never been.
Preet Bharara: It was good. I was there once before. Not everyone loves everything that President Kennedy did, but it’s kind of jarring to see, for example, how he and his administration dealt with the Cuban Missile Crisis. How calmly it was dealt with, with a limit to the drama, and you wonder how would the new guy handle a crisis of that nature?
Anne Milgram: Let’s not find out-
Preet Bharara: It makes you worried. All right, speaking of things, issues, crises. We were supposed to today, we had all planned to spend this hour with the dear listeners talking about Mueller’s upcoming testimony. We were going to do a preview, not happening. Delayed by a week. What the hell is going on there?
Anne Milgram: It’s a great question. I mean, in the lead up to the delay, there was a lot of the chitter chatter in the media about how a lot of the representatives in the House Judiciary Committee were not going to get time to ask questions. It seemed so silly to members of the general public, but having worked on the Hill, both of us, I could see that every member wants their chance to ask a question of Robert Mueller, and so there was a lot of back and forth about, “Would Mueller stay longer?” There were really only two hours of Mueller’s time initially scheduled for the House Judiciary, and two hours for the Intelligence Committee. The Intel House Committee is much smaller than the Judiciary Committee, and so they would have had enough time for all the members to ask questions, but the judiciary would not.
Preet Bharara: Which number is higher? The number of people in the House Judiciary Committee, or the number of people running for president?
Anne Milgram: Oh gosh. I think it’s the Judiciary Committee-
Preet Bharara: I know it’s [crosstalk 00:02:27]-
Anne Milgram: Yeah. Yeah. I know I have to do the numbers, but yeah.
Preet Bharara: It’s a lot, but where I don’t understand is, why couldn’t they just have elongated the testimony this Wednesday? I mean, I guess Bob Mueller is a busy guy. I don’t know how busy he is at the moment that he couldn’t accommodate them for the longer period until the following week.
Anne Milgram: Yeah, so here’s what’s weird. The house puts in their joint release, they put in at his request, at Mueller’s request. What I would guess, and I could be completely wrong on this, tell me your read, but I would guess that they went back, that the House chairman went back to Mueller and said, “We need you for more time,” and Mueller might’ve said, “Okay, but I can’t do it that week. I got to do it the following week.” Then they said, “Okay, it’s your request.” But it’s not exactly Bob Mueller’s request, right? They had negotiated and agreed upon a set amount of time and then they wanted more because their members got upset [crosstalk 00:03:14]-
Preet Bharara: I’m just wondering maybe Muller had a big important, IHOP breakfast.
Anne Milgram: I went to IHOP this morning.
Preet Bharara: Yeah, IHOP is great.
Anne Milgram: It’s great.
Preet Bharara: They’re not a sponsor, to be clear. This is not part of [inaudible 00:03:25]. The other thing I will say that, it’s a pet peeve of mine with respect to how hearings are conducted and how committees are staffed. It is in the House on the Democratic side, and I believe the Republican side, and also in the Senate where I worked and where you worked, the member with the greatest seniority goes first. It’s often some octogenarian, no disparagement against octogenarians. I have family members who are octogenarians, but I’m not sure I want them to be the lead first questioner, and some of the most energetic, smart, vital, close-to-the ground question askers are the ones who come later because they have the least seniority, and they’re some of the most effective interrogators on the Hill. One thing you accomplish by having more time, even though it will happen later in the hearing, that you have some of the most effective question askers be able to be in the mix.
Anne Milgram: I completely agree. There’s no question that the people who are asking the best questions right now on Capitol Hill are the more junior members. They’re less intimidated by the culture of the institution, which can sometimes be a little bit, I don’t want to say dull, but it’s pretty formal. I agree, it’s a little weird that they had to push back for a week. I mean, it’s two days before the summer recess, meaning that-
Preet Bharara: For six weeks.
Anne Milgram: For six weeks. All the members of Congress, they’re literally going to finish the hearing and then go home for six weeks to campaign or take family vacations or do whatever they do. There’s no time really for Congress to process the information they’ve gotten, but that said, I don’t think the delay is that big of a deal. I wanted to ask you one other thing, which is that there’s been a lot of back and forth now about that the House had asked for two of the other senior folks on Mueller’s team, Aaron Zebley who was Mueller’s Chief of Staff at the FBI for a period of time, and James Quarles, who was also… he was with Mueller at WilmerHale, the law firm Mueller was at before he became special counsel. They had been asked to go in for private testimony with the idea being that maybe the house was looking to see if they’d get more information from someone other than Mueller.
Preet Bharara: People have said that. I think it’s unfortunate that their testimony has been derailed. I don’t know how much more you’ll get out of those folks. I think everyone on the Mueller team, with the possible exception of Andrew Weissmann, who apparently has a book deal, but we can talk about that another time, is taking a page from the boss’s playbook-
Anne Milgram: Agreed.
Preet Bharara: … which is to be minimalist. Maybe it’s the case of, behind closed doors people could say more. Maybe it’s the case that people closer to the ground are in a position to give more detail because they’re closer to the facts. I think it’s unfortunate that’s not going to happen, but I don’t know how much it impacts everything.
Anne Milgram: Right. I think the reason that they potentially wanted those folks is that they were the ones in conversation on a daily basis with the Department of Justice and the White House. I think, what the House is probably looking for is information on, “Hey, what was going on with those communications, and those back and forth,” particularly with Mueller’s final report, that back and forth. But I agree with you. I don’t think anyone’s going to step beyond where Mueller goes.
Anne Milgram: One thing I should ask you, I mean, I think there’s been a ton of press and a lot of anticipation about Mueller. I personally have wanted to hear Mueller speak on this since day one. I didn’t want to hear Bill Barr make that summary. I wanted to hear it from Mueller, he’s the special counsel. But, should we be expecting a lot of new things coming out of Mueller’s testimony? What do you think-
Preet Bharara: I don’t know. I don’t think so. I think that time matters, and time goes on and people move on. Not that they should move on. It’s still the case that most people haven’t read the Mueller Report, and most people in television, you hear them say, “Well, if Mueller simply just recites some of the allegations.” If you have a member saying, “Could you turn to page 212, and could you read paragraph two,” that’ll be devastating because most people don’t know that information. Yeah, I think there’s a point to be made there. But, Bob Mueller has made it absolutely clear it is not on his agenda to make waves or to prompt anything.
Preet Bharara: A different special counsel might be expected to do it a different way like Ken Starr, who’s the independent counsel, but I don’t know how much more is going to happen. Then as you pointed out already, this is happening two days before there’s a long recess. Based on my experience in the Congress, and I’m sure you had the same, not a lot happens when the members are not in the place together. They all go to their far-flung districts and if you believe what they’re saying, people are not asking as much about the Mueller report and about impeachment. They’re asking about jobs and they’re asking about health care and they’re asking about other things. It’s very difficult to have momentum and to set new hearings and to have votes for additional subpoenas. In fact, that’s impossible to do because they’re not going to be in session.
Anne Milgram: Yeah, do you think we should make bets as to how many times, and we can do this more next week, but, how many times Robert Mueller will say, “I’m afraid I can’t answer that question,” some version of that, and how many times he will say, “I’m going to refer you to the report.” Hundreds.
Preet Bharara: If the second is a drinking game we’re going to be pretty very sloshed. It’s morning, it starts at 8:30-
Anne Milgram: [crosstalk 00:08:04]-
Preet Bharara: … but as they say, “It’s five o’clock somewhere.” Right? Isn’t that what they say?
Anne Milgram: It’s true. Yeah. Right.
Preet Bharara: If I’m doing the math correctly. We have a lot to talk about with respect to the former, or I guess soon to be former Labor Secretary, Alex Acosta and the Epstein case. Before we do that, the president, I don’t know if you know, sometimes he tweets-
Anne Milgram: He does.
Preet Bharara: … and sometimes he tweets racist garbage. Do you know this?
Anne Milgram: He does, yes.
Preet Bharara: I believe he did that yesterday. Did he not?
Anne Milgram: Yes.
Preet Bharara: I believe he told four members of Congress, women, people of color, essentially, “Go back to where you came from.”
Anne Milgram: Yeah, “And fix the problems there.” It’s astonishing, and yet it’s like-
Preet Bharara: I mean, I don’t even know what to say. I mean lots of people-
Anne Milgram: I feel the same way.
Preet Bharara: Lots of people said… I finally tweeted last night, just for my own self, from time to time, people on Twitter and other places when I was young, they’d say something stupid like, “Go back to where you came from.” I’m like, “Exit 105 on the Parkway?” It’s in Jersey.
Anne Milgram: 8A on the Turnpike.
Preet Bharara: Yeah, and I’ll speak my mind. I mean, [inaudible 00:09:10] criticism is about these four members of Congress, with whom I don’t agree on various things, but they are members of Congress and they are Americans. His criticism is that they’re viciously telling the people of the United States, the greatest and most powerful nation on earth, how our government is to be run. I believe-
Anne Milgram: That’s their job.
Preet Bharara: That’s their job.
Anne Milgram: Exactly. Exactly.
Preet Bharara: Laura Ingraham goes on television and says about athletes who decide they want to talk about politics, “Shut up and dribble,” and people say, “Well actors and actresses have no business,” and now you’re saying members of Congress who are elected-
Anne Milgram: Who are elected-
Preet Bharara: … have no business talking about how government should be run? It is literally-
Anne Milgram: It’s absurd.
Preet Bharara: Good job.
Anne Milgram: Yes. Also, the other part that I really found offensive about that sentence and viciously telling the people of the United States, they are the people of the United States, right? They are people of the United States as well. To make that distinction. One thing I would quibble with the media on is that the media is quick to label this as racist, and I agree with that, but it’s also sexist. It’s also xenophobic. There’s so much wrong with the way Donald Trump sees the world. It’s not just through the racial lens, it’s through all these potential lenses. The other piece though is that, do you think he’s doing it to become a part of the story? Because, they are getting a lot. I mean-
Preet Bharara: Could be-
Anne Milgram: These four women are getting… they’re doing a great job of getting media attention. They’re some of his biggest attractors, and they’re getting press time. Some of this I see as his… He always wants to play offense, I see it as him hitting back. It’s horrific and offensive. I actually thought their responses by the way were terrific, which is… Some of them were essentially along the lines of what you said, “I’m going to speak my mind.”
Preet Bharara: Well, [inaudible 00:10:51] funny is, in two different tweets the next day, Trump seems to be scandalized by foul language and racist hatred. Foul… Does the president ever use foul language? I don’t know.
Anne Milgram: Yes, he has-
Preet Bharara: Has he used foul language and racist hatred to talk about certain kinds of countries that he refers to as shithole countries?
Anne Milgram: Doesn’t he always do this, that whatever people accuse him of, he accuses them of.
Preet Bharara: He does.
Anne Milgram: He always flips it. It’s just a political-”
Preet Bharara: Your son has now turned five. Has he stopped saying, “I’m rubber and you’re glue, whatever you say bounces off of me and sticks to you?”
Anne Milgram: We haven’t introduced that one yet. That’s a great one though.
Preet Bharara: I still use that from time to time-
Anne Milgram: Its a great one.
Preet Bharara: It works.
Anne Milgram: Yeah, that’s true.
Preet Bharara: There’s no response. Have you used it in court?
Anne Milgram: I’ve never used it in court. I’ve never used it in court.
Preet Bharara: Speaking of court, the case of the United States versus Jeffrey Epstein continues. You and I both watched Alex Acosta plead for his job by doing that press conference. Most people were not very impressed by it. I was impressed by only one thing.
Anne Milgram: Yeah, what.
Preet Bharara: He was very calm in his demeanor. Sometimes you see people who were playing for an audience of one come out there, and they get worked up like Kavanaugh did. Obviously very different circumstances when he was testifying in connection with his confirmation hearing for the Supreme Court.
Anne Milgram: But there was a parallel in that. It was a hail Mary, right? It was the “Let me give it all I got and see if I can save my job,” type of approach.
Preet Bharara: I was surprised that he decided to resign so quickly the next day, because I thought from Trump’s perspective to his ears, substantively, I think it was not a good performance, but my reaction was, for Donald Trump, maybe it was a plausible performance, and so-
Anne Milgram: Right. Well. He gave the president something that the president could argue, like, “Look.” What was interesting about Acosta’s pitch, which is completely false, and we should dissect the reasons why in a minute. But what was really interesting about it was that he gave the, “I’m the hero of the story. I’m not the villain. I’m the hero. I saved what was going to be a terrible…” I’m still not sure how he saved it because it was still just a state prosecution, so I don’t see any benefit that they brought to it, even under his analysis. But it was the, “I’m the hero of this story, and there was something terrible was going to happen. The state prosecutor is so bad, and I’m the one that came in and did something good,” which is absurd, but it did give an argument for Donald Trump to say, “Look, he did the best he could under bad circumstances. It was a state case.”
Anne Milgram: I wonder a couple of things though. Acosta resigned very quickly, and we don’t know the inside or what was happening back and forth. But, there are a number of theories. One is that this does come too close to Trump, right? He said positive things about Epstein. There are photos of Trump and Epstein together. This does circle around Trump’s mistreatment of women question. There’s a lot of reasons why I think Trump does not want this to be in the news.
Preet Bharara: Do you think it was Trump or do you think it was Trump staff? Because the reporting is, is Mulvaney and others.
Anne Milgram: I think it might’ve been Trump’s staff, but I think they’re… I don’t think you can ignore the fact that this story is not happening in the media without Donald Trump being a part of it.
Preet Bharara: No, totally. Donald Trump, I’m not sure that he said, “You got to go,” because he can tell people to make that happen, but he did accept the letter of resignation. He didn’t have to accept it.
Anne Milgram: Even if Donald Trump was okay with fighting this out, it’s pretty clear to me there are some things that Donald Trump is fighting out that his political team would say, “Okay, look, we keep the base on this.” They’re protecting somebody who protected a child sexual predator. That’s a tough one for people of any political party, I think. At some point, maybe they knew it was just indefensible.
Anne Milgram: The other thing though that I wondered, and I have absolutely no information on this, and should probably not even be speculating on it, but-
Preet Bharara: Go ahead.
Anne Milgram: Let me go, because that’s what we do. It’s clear that Congress was going to call Acosta to testify. They still have asked him to testify. It’s not clear to me now whether he goes, and we can talk about that in a minute, but it is clear to me that if he had stayed as the Secretary of Labor, he would have been called before the United States Congress to explain this. Other witnesses might have been called as well, and he has never fully explained, and I still don’t think we know, and we should dissect this as well, but why Acosta did what he did. Why he essentially took a dive on a case that should have been aggressively prosecuted. What I wonder is, was the other shoe going to drop or was there something that was going to come out that just was so problematic that… or Acosta was going to have to point the finger at somebody else that he just wasn’t willing to do that?
Preet Bharara: Yeah. I don’t know. I mean, going back to his performance…
Alex Acosta: The State Attorney’s Office allowed Epstein to self-surrender and arraigned him the following morning, simply put, the Palm Beach State Attorney’s Office was ready to let Epstein walk free. No jail time, nothing.
Preet Bharara: Yeah, he engaged in a very serious ploy of blame shifting saying that it was the DA’s office or the state attorney’s office who was going to give Jeffrey Epstein a slap on the wrist. Look, that’s not completely incorrect. I think he overstated it by an order of magnitude 10 times or 100 times. But if it was true that the state attorney was going to do nothing, and the federal prosecutors were going to come in and do something, that’s better. But given that they had a 53-page indictment [crosstalk 00:16:11]-
Anne Milgram: They didn’t do anything. Right.
Preet Bharara: It had some value, and had some merit, and given what we know now clearly had some value and merit. Was it a corrupt deal or was it massive-
Anne Milgram: Negligence.
Preet Bharara: … fear, and miscalculation of the case? I mean he said, “I’m wondering how you feel about this, and how it hit your ear, because how it hit my and some others…” He said over and over again, “Well, things are different now. Victim shaming is not accepted now.” Was victim shaming, especially with respect to minors, accepted 12 years ago?
Anne Milgram: Never, never. This is one of the things I found the most outrageous about his press conference, which is that… Again, as you know, he hired me to be the lead federal prosecutor of human trafficking. We were incredibly aggressive. We did a number of cases with child victims. They are tough cases for victims to testify always, and we did cases, frankly, with a lot fewer victims than they had in the Epstein case, and this was never an issue. It was never thought about in those terms at the Department of Justice, it was never a concern. For him to get up and say that, that was their concern, it rings so hollow to me because I know it’s not the truth of what he knew when he was at the Department of Justice before he was the US Attorney.
Anne Milgram: The other thing that troubled me, just going back to the state prosecution piece is that… and I’ve been a state local and federal prosecutor. As a local prosecutor, yeah, the laws that they have in Florida, the state laws of probably prostitution and pimps, but they don’t have a human trafficking law. At the time, they may not have had a human trafficking law. All states have them now. But, going back to 2007, 2008 we have to check Florida, but it’s not the thing that the states do in the same way as it was that the federal government had started doing when the Trafficking Victims Protection act was passed in the year 2000. As Acosta well knew, there’s no requirement of force, fraud or coercion for minor victims, and these are minor victims, they’re are between the ages of 14 and 18. The idea that the feds did not have the better law or approach to this is absurd.
Anne Milgram: The other piece which Acosta throws out there in the press conferences in addition to the victim shaming was this whole thing about how tough it was to prove crossing state lines, which by the way, a local prosecutor in Miami, they really don’t have either the resources or the-
Preet Bharara: That’s the silliest argument.
Anne Milgram: Who can prove that something crosses state lines? The FBI, which is nationwide.
Preet Bharara: Right. One of the things we talked about last week, and I thought was compelling that I think you said was, sometimes you hear in these cases there’s a calculation made and you can err in the calculation or you can get it right. That you don’t want to subject victims, particularly vulnerable young victims, to trial, and to cross examination, because it’s a tough thing to do, and we had never heard that argument. For the first time, in defense of himself, Alex Acosta made that argument and seemed not right given how badly the lawyers for the victims wanted justice.
Anne Milgram: It’s not right. It’s completely hollow. I mean there are a few points. One is that, I’ve never walked into a victim of a sex crime or sex trafficking and said to them, “Are you sure you’re okay going forward?” I mean, that’s not the conversation, and that’s the implication here from the victims lawyers is that, the prosecutors were scaring them in some ways about proceeding. The way you handle this is you basically say, “Look, here’s what’s going to happen. Let me run through the entire process with you. I’ll take you to court before court starts, so you can see what it’s like to sit in the witness box. I will ask you all the questions I think they’re going to ask you. I need you to be completely honest with me, because if they know stuff that I don’t know, that’s a problem. I’ll be surprised at trial and it won’t go well. But, your only job is to tell the truth and to get up there and tell the truth.”
Anne Milgram: I can’t think of a victim, in all the cases I’ve done throughout my career and I have done a lot of cases in this space, who wasn’t willing ultimately to go forward. By the way, I think it would be legitimate for victim to say, “I really can’t.” I think there are times, particularly where there’s a single victim. I talked about the one victim in a case I did that was a juvenile and I just didn’t think it would be the right thing or fair for her. But as a rule, this is what you do. When you have multiple victims-
Preet Bharara: Dozens.
Anne Milgram: Dozens.
Preet Bharara: Dozens.
Anne Milgram: If one doesn’t cooperate or one can’t testify, it tends not to matter for the health of the case. I found that to be completely false. I also want to say one thing about the Petite Policy, which-
Preet Bharara: Describe what that is.
Anne Milgram: Yeah, so let’s talk about this for a second. When I was at the Department of Justice, the federal government has something called the Petite Policy, which is essentially that, the state and the federal government are separate sovereigns. They can both prosecute. We’ve talked about how New York had an exception. The law was just changed. But as a rule, you can be prosecuted in the state and in the federal court for the same offense.
Preet Bharara: Without violating the double jeopardy clause.
Anne Milgram: Exactly. They’re considered separate sovereigns for purposes of the law, meaning you can be prosecuted in both. As a rule, when I was at the department, we would let the state go first, but if we didn’t feel that the state had fully vindicated victim’s rights, or if we didn’t think that justice was done, then the feds would go. There are many examples where there are both state and federal prosecutions. The whole Acosta argument about the interaction between the state and federal government is just completely also inconsistent with my experience at the Department of Justice.
Preet Bharara: The other problem is, when you’re the former federal prosecutor, and you speak in a way that blames the local state attorney, that local state attorney also may have a voice. Didn’t go on television, and I don’t know him, and I can vouch for him, but he made a statement, Barry Krischer, who was the Palm Beach County state attorney from 93 to 2009, and he did say something that rang true with me that some people didn’t like. He said, this is the quote, “I can emphatically state that Mr. Acosta’s recollection of this matter is completely wrong.” Then he said something which resonates with me deeply, “Federal prosecutors do not take a back seat to state prosecutors. That’s not how the system works in the real world.” True statement.
Anne Milgram: True statement. Again, if the feds wanted to see what the state was going to do, they absolutely could have said, “Look, we’ll watch and see what you’re going to get.” It was always the case though that the state was going to probably do a, patronizing a prostitution charge, which is a misdemeanor punishable up to one year in jail, which doesn’t get at the harm here. It was always likely, in my view, that the feds could and should have looked at this as a trafficking case. There are a couple of other things that, just to get your views on. There are two things that Acosta did not explain to me, both of which I thought were very important, which is, how do you explain that you have a 53-page indictment and you don’t go forward? Right? It’s just completely inconsistent with the arguments he was making.
Anne Milgram: The second is that, there’s no explanation why they hid it from the victims, right? It’s not only that they didn’t go forward, it’s that they affirmatively concealed the fact that they gave Epstein a sweetheart deal. I still am really curious about the why, and I don’t think it’s been explained yet to us why Acosta would do this. What influence… One of the things I wanted to ask you about is, there’s been… All the media is making a huge deal about the federal prosecutors were intimidated by this high price elite lawyer, his guy, Jay Lefkowitz. What do you think of that argument?
Preet Bharara: Yeah. If you’re the United States Attorney, and you’re intimidated by a defense lawyer, then you don’t belong in that job. If it’s true, it’s ridiculous. I tend to think it’s not true. There was either a huge miscalculation about the strength of the case or something else going on. You have these high-powered defense lawyers. I mean, fine, you’re the presidentially appointed the United States Attorney for whichever district. In my case, the Southern District of New York, in Alex’s case, the Southern District of Florida, and-
Anne Milgram: They had to have had high-priced defense lawyers all the time.
Preet Bharara: Yes. If you’re the US, you’re the one who knocks.
Anne Milgram: Right. That’s the way it goes-
Preet Bharara: [crosstalk 00:23:49] Breaking Bad reference for those who know what I was talking about.
Speaker 4: A guy opens his door and gets shot and you think [inaudible 00:23:53]. No, I am the one who knocks.
Anne Milgram: The media has really embraced that argument. I find it completely implausible. I mean, I’m not saying that there aren’t times where people don’t stop and think, “Well, this is a good defense lawyer. They may try the case, and we have to be ready to bring our case to trial.” That analysis certainly can happen, but the idea that you would give a case away solely because there was a good lawyer on the other side just strikes me as absurd.
Preet Bharara: No it’s part of a calculation of the strength of your case. Look, people make big miscalculations all the time. People overstate the vulnerabilities of victims. I’m sure we’ve done it in my office, I’m sure in a lot of… I mean, I write about this in the book. There are a lot of famous cases and well-known publicized cases I write about in my book, but there’s one that I found one of the most compelling stories I didn’t even know about really.
Preet Bharara: It was a low-level case, never came to my attention, of a sex worker named [inaudible 00:24:47] who was robbed and beaten. People made the judgment in the local DA’s office, the Bronx DA’s office, not an illegitimate decision, that we were never going to get justice for her because who’s going to believe her? She had a lot of emotional problems, and the money that was stolen was the money from her sex work and they declined prosecution. She also had a failure of memory with respect to who one of the perpetrators was, and then as I discussed in the book, there were intrepid investigators at the NYPD, and at the ATF, and at my office who said, “She deserves her day in court.” I praise them and give them a lot of credit for taking the case forward, but lots of people might not have, and so you can make… I mean, I think in the Acosta case, given everything that clearly was known to them at the time in the 53-page indictment, it was a gross miscalculation, but I think it still could be just that.
Anne Milgram: Yeah, I’m skeptical of that for a variety of reasons, but there is a way, particularly with a single victim sex crime case, where it’s, he said, she said. Where you do see judgment calls being made about credibility, and the ability of somebody to proceed to trial. I just don’t see that here. Again, I’ve done a lot of cases that I personally think we’re a lot tougher than this case ultimately was, and so I’m biased by that. But, under any circumstance, you still wouldn’t hide what you were doing from a… There’s something malevolent, here just to bring out my SAT word of the day-
Preet Bharara: [inaudible 00:26:13]-
Anne Milgram: … but there’s something not right here that we still don’t understand.
Preet Bharara: Well, another piece of evidence in favor your argument is that, not just was it a, ‘sweetheart deal’ [inaudible 00:26:22] light deal, but there were other giveaways here including, I think, the issue that was asked about and Alex Acosta gave his weakest answer, which is saying something because there are a lot of weak answers. Absolutely didn’t answer the question, “Why is it that multiple co-conspirators are identified by name and given immunity in an agreement with Jeffrey Epstein?” He hemmed and hawed, because there is no answer to that. The only answer to that, which is not a reasonable one, is, I guess, “We thought the case was so weak. We wanted to make it go away that we were prepared to basically give into any demand that Jeffrey Epstein’s lawyers made, one of which was this outrageous demand that these other people get immunity. We caved on that because otherwise we couldn’t have made the deal happen.”
Anne Milgram: But that completely proves this point that Epstein held all the power. The question is, how and why did Epstein hold the power? Because the government can make a decision to charge or not to charge, but to then be held over a barrel to give a deal to people who aren’t even part of those charges or the offense. It makes no sense whatsoever as a prosecutor. Let me ask you one more thing on Epstein, which is, it’s been reported that Alex Acosta says, when he’s interviewed by the White House to be the Secretary of Labor, and there’s a whole vetting process that traditionally is very, very rigorous and candidates for these offices fill out long questionnaires.
Anne Milgram: They divulge everything about finances and whether they’ve ever had run-ins with the law, everything. That he’s asked about the Epstein case and is it going to be a problem, and his answer essentially is, this is reported in Daily Beast. The quote is, “Is the Epstein case going to cause a problem for confirmation hearings?” Acosta was asked that. He explained, according again to the reporting, that back in the day he’d had just one meeting on the Epstein case, and he’d cut the non-prosecution deal because he had ‘been told to back off’ that Epstein was above his pay grade, and that Acosta was told that Epstein ‘belonged to intelligence’ and to leave it alone. What do you make of that? Basically the implication is that Epstein was essentially a spy or an intelligence-
Preet Bharara: [crosstalk 00:28:31]-
Anne Milgram: … asset for the United States government. Yeah.
Preet Bharara: A few things. It is true from time to time, in my own personal experience, where you come up against somebody who’s engaged in certain misconduct, usually by financial nature. It has to be worked out in a way that’s appropriate and in the interest of justice, the larger sense of justice, and it comes to your attention that that person is providing valuable information, or has worked as an asset in some way for intelligence services. In other words, sometimes it’s impossible to make up an organization or make up a company and somebody will decide, “Well, we can use an actual human being who doesn’t have to pretend that he owns a company and they can engage in financial transactions with bad guys for intelligence gathering purposes.” You have, a debate and a back and forth, and an argument, “What kind of misconduct is it? Can it be overlooked in favor of intelligence reasons?” Then you have all sorts of other discovery problems that you would have if you went forward with the case, so that the defense-
Anne Milgram: I’ve seen it used a lot in white collar cases, particularly where a defendant commits a series of financial frauds and then gets wired up to proceed against the other folks. I think it’s very different than a child sexual predator.
Preet Bharara: No, totally. The point is, that’s not crazy-
Anne Milgram: It happens.
Preet Bharara: That does happen, and it upsets prosecutors immensely. But the prosecutors decide, “Well we didn’t know that, and now we’re going to have a huge problem proceeding with the case because there’s going to be a fight over discovery and information relating to this bad conduct,” because-
Anne Milgram: They’ll all come out-
Preet Bharara: … it has all sorts of relevance to the defense case, usually. I also agree that it is not the kind of thing that you overlook, years long rapes of young girls, so it seems a little bit far-fetched. It also would be odd for there to be any conclusion at all. I mean, typically in a case like that, because the person has been an asset in some formal way as was suggested by Alex, the whole thing would go away as opposed to having something half-assed that we’ve been [crosstalk 00:30:26]-
Anne Milgram: Like a non-prosecution-
Preet Bharara: Like a non-prosecution, and some jail time, although most of it was not spent in jail. You would think there’d be a switch, either proceed or not proceed. I also think for that to be kept hidden for so long, given how many people would have had to know about it, is also odd. It also seems like a throw-away line. But then, at the press conference it’s something that was largely overlooked.
Anne Milgram: Yeah. The reporters did a terrible-
Preet Bharara: Acosta was-
Anne Milgram: … job of asking questions-
Preet Bharara: … asked [inaudible 00:30:51], about-
Anne Milgram: Not to throw our reporter friends under the bus, but he was asked about this. Do you have the…
Preet Bharara: Yeah. He was asked essentially, whether Epstein was an intelligence asset, and it’s the kind of thing, if it’s outlandish and crazy that you would think Acosta would have just said, “No. That’s a crazy theory.” He says instead, “There has been reporting to that effect, and let me say…”
Alex Acosta: There has been reporting to that effect, and let me say there’s been reporting to a lot of effects in this case, not just now, but over the years. Again, I would hesitate-
Preet Bharara: To take this recording as fact. Hesitant to take the reporting as fact is not blowing it out the water. This was a case that was brought by our office. It was brought based on the facts, and I looked at the reporting and others, I can’t address it directly because of our guidelines. You can’t directly address, in a garden variety case, an outlandish theory that the defendant was an asset. I don’t think that violates anything.
Alex Acosta: But I can tell you that a lot of reporting is just going down rabbit holes.
Preet Bharara: That was not really a denial.
Anne Milgram: No, it’s not a denial at all. It’s almost a, “Yeah, something happened, or I was told this, whether or not it’s true.” The thing I started to think about is, who could have told Acosta that? He was the US attorney. He was the chief federal law enforcement officer for the Southern District of Florida for Miami. The only people above him are the people in the United States Department of Justice, for example, the assistant attorney general for criminal, the attorney general, the deputy attorney general, but there’s a pretty short list of folks who would have the authority to tell the appointed and Senate confirmed United States Attorney for Florida not to do an investigation. I’m not sure it’s true by the way, but I do think Acosta offered this, at least in his White House conversation, as the theory behind it. There’s probably a lot more to that story that we don’t know. It’s either, he’s making an excuse for political deals that he was cutting himself, right-
Preet Bharara: Yes. That to me is what it sounds like. Maybe there was some whisper or hint of something, and he doesn’t want to kill the story, because it allows a little bit of speculation as to why he might have done… because of some greater interests for national security or the country, but there’s really nothing to back it up. I wouldn’t put too much stock in that.
Anne Milgram: It’s just bizarre. It’s like every story we touch has a spy thriller aspect to it.
Preet Bharara: Before we move on to the case itself, we spend a long time on Alex Acosta. The president had an appearance, I guess on the front lawn, was it on the front lawn? And Alex Acosta showed up too. I thought it was odd that the president, I think more than once in saying nice things about Alex Acosta said, “He’s a Hispanic man. He went to Harvard.” Okay-
Anne Milgram: I can’t believe it. He seemed shocked-
Preet Bharara: He is a Hispanic man, he went to… I don’t think he told him to go back to where he came from.
Anne Milgram: No, he did not. He did not. He tweeted out and said some very positive things about Acosta, so I think, it’s not clear to me where the president was on this, but what is clear-
Preet Bharara: But then Acosta returned the favor in a long line of interestingly written letters of resignation to the president of the United States by a departing senior member of the administration. Here comes Alex Acosta.
Anne Milgram: “Dear Mr. President. Blah, blah, blah. You have made America great again. It has meant so much to me that you offered your steadfast support in our private discussions and in your public remarks.” Oh gosh, I wonder what the first draft looked like.
Preet Bharara: The Epstein case itself continues in the Southern District of New York. We should talk briefly about the merits and about some possible defenses, but before we do that, I thought we’d talk about what I think is very interesting and is happening today. We’re taping this on Monday morning, July 15th. There is a bail argument. Jeffrey Epstein has been in custody since his arrest pending a bail argument and there’ve been submissions back and forth. My old office, the Southern District of New York is seeking detention for a variety of reasons, including that Jeffrey Epstein, they say, is a very significant risk of flight. He’s got a home in France. He’s got a lot of means. He’s got a lot of money.
Anne Milgram: He’s got private jets.
Preet Bharara: He’s got private… He had two, I guess he sold one.
Anne Milgram: Yes. Now he owns one.
Preet Bharara: He’s offering to put up the other jet as collateral. As the government points out, “Well, you just have money from the sale of the other jet, you could replace the one jet. I’m not sure that the jet is going to secure your appearance in court.” They’ve also pointed out something that we didn’t know before. The government alleges that Jeffrey Epstein, when the reporting began with the Miami Herald, has paid lots of money to people who are potentially able to inculpate him.
Anne Milgram: $350,000 in 2019-
Preet Bharara: A lot of money-
Anne Milgram: A lot of money.
Preet Bharara: And the suggestion of witness tampering. There’s also… You always make the argument about the strength of the case. That’s relevant to a decision that a defendant might make to flee. If the case is very, very strong and you’re facing a lot of time in prison, the government’s argument is, you have a greater incentive to flee. Now, separate from what’s in the indictment relating to mostly old conduct, the reporting has also been that potentially child pornography was found currently.
Anne Milgram: The government says hundreds or thousands of images, which is a lot.
Preet Bharara: As you and I know, not everyone does, and we talked about this last week, those things are very hard to defend against in court, and they carry really, really substantial penalties. A guy who’s rich like this, who has a lot of means is, I think the government is correct, and if I had been there we would’ve argued the same, and I would have endorsed the argument based on what I know, can’t let him loose.
Anne Milgram: Yes. 100% I would argue for detention in his case. He’s a huge risk of flight and Epstein’s lawyers, they basically pitch, and it’s a fascinating thing worth talking about. They basically pitch, “Let him build a private prison for himself,” right? They basically say, “Let him hire armed security guards, stay in his mansion…” which, by the way, has already been named by the US Attorney’s office and the United States government as something that they would like Epstein to forfeit.
Preet Bharara: It’s where some of the crimes took place.
Anne Milgram: The government has a very strong argument to say, “We want to seize this property.” Whether or not that happens, we don’t know yet, but it’s already potentially not Epstein’s $77 million residence to basically put up as collateral. There’s a number of pieces that are really important. One is his estimated wealth, and it’s not clear that anyone knows exactly what his wealth is, it’s been estimated at $500 million. That’s a lot of money that lets you buy a lot of things. Number two-
Preet Bharara: But not happiness.
Anne Milgram: Not happiness.
Preet Bharara: I just want to make that clear.
Anne Milgram: Fly to other countries, many of which do not have extradition treaties with the United States. Epstein’s lawyers say, “Well we’ll waive that.” That’s not legal, it’s not binding.
Preet Bharara: But France does, and they say, in their favor, that the one place that he has a residence does have an extradition treaty with the United States.
Anne Milgram: Right, but one thing I was thinking about as I was reading the papers, which are fascinating and worth the read, was that part of the conspiracy that charged employees one, two, and three are people who work for Epstein, who he gets to be part of this criminal conspiracy with him. He uses his money, essentially, to buy people to facilitate him committing crime. Why in the world would the court think that he would not use that money to facilitate flight and having people, whether they were armed guards or other people who worked in his residence, also be bought off by him to facilitate flight? There are a lot of reasons why I think he still is a flight risk.
Anne Milgram: There’s also a lot of reasons why I think he’s a public safety risk too. He was designated as the highest level sex offender, and he clearly has hundreds if not thousands of images of what appeared to be children, sexual images of children, in his residence currently. The idea that he’s not a danger, or potentially a danger, I think is false. There’s countless reasons why I think the government is right to seek detention and to reject this idea of a private prison, but let’s talk about that.
Preet Bharara: I didn’t know what argument he was going to be making until, I guess, the submission came in and I hadn’t seen it yet. A reporter reached out to me and said, “Have you seen the proposal by Epstein’s lawyers?” And I said, I had not. Then, guessing why the person was asking, I said, “Did he make a pitch for paying for his own security guards and creating a private prison?” And the reporter said, “Yes,” and I think I might’ve typed, “Lol,” because that’s how you indicate laughter in the text message as you and I have often done. My dear friend Anne Milgram.
Anne Milgram: Yeah. You weren’t surprised at all.
Preet Bharara: I wasn’t, but then I said, “This is a terrible argument for him for a lot of reasons,” on the merits we’ll talk about it further in a moment, but also given the luck of the draw for Epstein, because he drew Judge Richard Berman. Judge Richard Berman is a fine judge. He used to be a family court judge, I believe, so has views about domestic violence and other kinds of violence against women.
Preet Bharara: But most importantly for these purposes, he was the presiding judge in the case against Reza Zarrab, who I’ve talked about at length and I talk about in the book, who was a gold trader from Iran, fabulously wealthy, who escaped justice in Turkey. His lawyers, and he had the dream team of lawyers, also made the argument that he should be able to hire folks to keep him in check and to prevent his flight. The judge knocked that down in a lengthy opinion for, among other reasons, there’s an inherent conflict of interest. You’re the guy who’s paying the salaries to the employees of this company who are responsible for your safety. You don’t have to be a movie maker to see how that can go wrong.
Preet Bharara: Also just on basic fairness grounds, that it should not be the case that some people have a palace for a prison and other people have the local prisons. I understand that Epstein’s lawyers had made a clever argument about equal protection, basically saying, “You can’t discriminate against the rich because they can afford it, just like you can’t discriminate against the poor.” It’s clever, but it’s also silly, but I think at the end of the day, legal argument fails, the argument is on the side of the government. But, judges are people, judges are human beings, and this case comes to the court in a certain context. The context is, you already have a legitimate accusation in the world that Jeffrey Epstein got away with something-
Anne Milgram: By buying off-
Preet Bharara: … because he’s rich and privileged and buying off a lot of people, had the best defense, and intimidated the prosecutor’s office. In the context of already having gotten away with terrible crimes for a long time because of his wealth and privilege, for a judge now who has previously not allowed this to go forward, for judge now to buy into that argument and allow him again to have an advantage, there’ll be calls for the impeachment of the judge in Congress if he allows that to happen.
Anne Milgram: Case closed.
Preet Bharara: Case closed, case closed.
Anne Milgram: You’re right. The government does a great job of arguing that, “If you concede…” We should note that, pretrial services recommends detention, that there is a presumption of detention here because of the nature of the charges, the amount of time that Epstein can spend in jail, that the government notes, “If you are someone who needs to have armed guards, then you need to be in a federal detention facility. If we get to the point where we think you’re enough of a risk of a flight and a danger to the public that you need armed detention, then there’s one answer for that, which is that the federal government detains you.” I agree 100% and you’re right, that judges are usually chosen by a wheel. It’s a random process by which a case gets assigned, and they happen to have gotten on the wheel, the judge has already rejected this idea of building a private prison for one.
Preet Bharara: Yeah, I mean, there are differences. I mean, in Reza Zarrab’s case. He was a foreign national and maybe had access to other means of protection in other countries, but look, my prediction is, certainly not a private jail and in all likelihood detention. Yours?
Anne Milgram: Completely. I have no question, for so many different reasons, that this should be a detention case. I think the judge will do it. One thing I want to note about the constitutional claim, the equal protection claim, it’s worth spending just a minute on how absurd that is and-
Preet Bharara: Its rich so to speak-
Anne Milgram: It really is. The equal protection clause of the United States Constitution says, “All people are entitled to equal protection of the laws,” and then it sets up three levels of scrutiny for courts to use to analyze questions. Things like race, which there’s been historic discrimination based on race, has what’s called strict scrutiny, meaning that if the government wants to do something and it’s based on race, that they have to have an extraordinarily strong persuasive reason why they should be allowed to do it. Then there’s moderate level scrutiny. Things like gender fall under moderate level scrutiny. Then there’s really very low level scrutiny and that’s where something like socioeconomic status falls in.
Anne Milgram: When we’ve seen equal protection used, we’ve seen it arguing, for example, that white and black people get to sit wherever they want to sit on a bus, for example, right? There’s a long history of litigation around the equal protection clause. When we’ve seen it used, it’s for people who are historically disadvantaged or have been wronged. It’s people of color, women, national origin where people are from, people who are impoverished. It’s not generally seen by someone arguing, “You’re discriminating against me because I’m wealthy.”
Preet Bharara: Exactly, and can I brag on my folks.
Anne Milgram: Please.
Preet Bharara: Although they’re not my folks anymore, but I hired a lot of them [inaudible 00:44:00] Bill memo. They recite something that the judge said in the Zarrab case, where Judge Berman, the same judge said, “The defendant’s privately funded armed guard proposal is unreasonable because it helps to foster inequity and unequal treatment in favor of a very small cohort of criminal defendants who are extremely wealthy.” By the way, I followed that argument closely, I was the US Attorney when that argument was made. It had offended me deeply and I wanted to make sure that we had a powerful response. Then in this case, the SDNY folks also write, “It is frankly outrageous for the defendant to suggest that preventing him from using his vast wealth to duplicate a private prison that cannot control, monitor, and contain him consistent with the requirements of the Bail Act, would cause him to somehow ‘Bear a special disadvantage.'” Good submission.
Anne Milgram: Yeah. It’s a great submission, and I think it’s also worth noting that there are many people who feel like there are two Americas when it comes to criminal justice, and wealth is a big part of that. That the wealthy can buy a certain amount of access to good lawyers to lesser consequences for criminal actions than people who don’t have resources or people of color. For Epstein’s lawyers to go into court and argue that they are disadvantaged, it’s really stunning to me. I don’t think the judge is going to accept that argument, and so it strikes me-
Preet Bharara: This judge is not.
Anne Milgram: It strikes me as, you know this judge isn’t going to accept it. Do you think the second circuit is going to be sympathetic? I don’t think so, or do you think the Supreme Court is going to be sympathetic?
Preet Bharara: No.
Anne Milgram: I don’t think so, so why make it?
Preet Bharara: That leads to another question, and taking you to draw the parallel with the Reza Zarrab case. No one likes to go to jail, and no one likes to be in jail pre-trial, but certain kinds of people handle it less well than other kinds of people. The kinds of people who handle it less well are wealthy folks who can afford a private security force and who live in $77 million mansions. People like that-
Anne Milgram: But that’s the way the system works-
Preet Bharara: … will do anything to get out of prison. One of the ways that you can maybe get your way out of prison is to flip. I remember when I was overseeing the Zarrab case, for various reasons, including his closeness with the Erdogan regime in Turkey, and his family living there, and the consequences to him and his family for flipping, which were much, much more dire than they would be, presumably, for Jeffrey Epstein. Once he lost any possibility of getting out on bail, and I may not know, this happened after I left the office, but from my knowledge of matters in the world, he then flipped. It was fairly surprising that he flipped. This is the hail Mary pass to get him out on bail, even if it is house detention. If Jeffrey Epstein has something that he can give and substantially assist with, once he’s denied bail, that becomes a much more real possibility.
Anne Milgram: I agree with you that he’ll cooperate. It’s an interesting question of who would he cooperate against. It does seem that he threw lavish parties, and he was often facilitating young girls for other people, and so he may have interesting things to tell.
Anne Milgram: To other things worth noting about the defense submission in this case, and this goes back to the, high-priced lawyers aren’t always so great conversation or we shouldn’t be intimidated by the top of the bar. Epstein’s lawyers make a couple of arguments here that I think are wrong and just stunning to me that they would make. One of those is that, he’s not a procurer. That he is essentially-
Preet Bharara: He is a demand [inaudible 00:47:17]-
Anne Milgram: He is a consumer. Exactly-
Preet Bharara: He is a consumer not a supplier.
Anne Milgram: Which is absurd, right? They go all in on, he’s guilty of engaging and paying women for sex. He’s not guilty of recruiting, obtaining them, which is flatly completely inconsistent with the human trafficking and sex trafficking laws.
Anne Milgram: The second thing is they also seem to misunderstand two very important parts of the law where there is strong case law, and that is number one that, even if that were the case, even if Epstein was just a John, someone who patronized a prostitute, he could still be prosecuted under the Human Trafficking Act, the Federal Trafficking Victims Protection Act, and there’s case law saying that, and obviously he’s not just that. The second piece is that they seem to intimate, in their filing, that there’s a requirement of force, fraud, or coercion. But to be clear in the United States law, for victims under the age of 18 all that’s required is a commercial sex act. There is no requirement of force, fraud, or coercion. If a victim is over the age of 18, then you would have to prove that their will was overborne. They were compelled to engage in a commercial sex act, prostitution, for example, through force, fraud, or coercion.
Anne Milgram: But, it’s really interesting to me that they’re flatly wrong in a couple of very important points that go to the case, and they’re arguing these to the court where the court will, in my view, very quickly reject them. I don’t know what you make of it. I mean, maybe it’s one of those things where they don’t see much defense, they’re concerned, but I think there are other defenses that would be… It strikes me as a strange thing to argue the law incorrectly to a federal judge.
Preet Bharara: There’s some other defenses as the case proceeds that I think the defense lawyers will be arguing, among them that Jeffrey Epstein should be given the benefit of his non-prosecution agreement because that was understood to be a global resolution, and so that everyone, including the US Attorney’s office in the Southern District of New York, would be barred from bringing the case and we talked a little bit-
Anne Milgram: You and I have rejected that, but I think it’s a fair argument for a defense lawyer to walk in and say-
Preet Bharara: Look, and then the double jeopardy argument, which is parallel to that, but not quite the same argument. Now, the first point in the government’s favor in the current case, which they make in their submission and I think is cleanest, is that there’s new conduct that was not included in either the pleaded away charges in the earlier case in Florida, or part of the charge that he pled guilty to, which was a simple prostitution charge, and there’s new evidence of new victims. Then there’s also, we keep coming back to this, the evidence, potentially, of child pornography today, in recent times, on his computers in his home, none of which you could make even any argument, straight-faced or not, is precluded by the non-prosecution agreement in Florida. That’s number one.
Anne Milgram: I would expect that Epstein will be charged with child pornography. It takes a little time just to explain this, which is that the FBI will be working with the National Center for Missing and Exploited Kids to verify the images, to see if the images are in fact children. There’s a process that goes on, without getting into the details, that takes place before charges would be brought, before an indictment would be brought to a grand jury to consider against Epstein for that. But I would expect that we’ll see those charges brought.
Preet Bharara: Look, the people who are making arguments on Epstein’s behalf, and this repeats a little bit what we said last week, are not wrong when they say it’s a little bit weird for there to be a non-prosecution agreement between a federal US Attorney’s office and a defendant and then later some other US Attorney’s office step in. Generally speaking-
Anne Milgram: It’s very unusual. Yes, I agree.
Preet Bharara: The presumption is, and when people ask the question, “Well, why didn’t some other office do anything about this?” When you have no reason and no evidence and no reporting, like we got at the Miami Herald, that there was something untoward, and potentially corrupt, and at a minimum sheer incompetent about that agreement, generally speaking, other offices, even if it’s brought to their attention, will respect that resolution. I don’t know what happened in some other case. There’s some cases that we resolved in a way that people didn’t love, but we had our reasons, and as long as you’re proceeding in good faith you tend to respect that. It is correct that if there was no generalized deference to other US Attorneys’ offices resolutions that you would have chaos and havoc and it would be really unfair generally to people who might become defendants in various cases. This is an extraordinary case, and that doesn’t mean that the law requires that another US Attorney’s office walk away and does it in this case.
Anne Milgram: Right. I agree with that.
Preet Bharara: We’ll see what happens with the Epstein case. The decision on bail. The judge has announced, during the proceeding already happening as you and I are talking, that he is going to take some time to consider the arguments and put forth a thoughtful written opinion this Thursday. We should touch on one more thing before we go. The continuing saga of the citizenship question on the census. Anne, is there going to be a citizenship question on the census in 2020?
Anne Milgram: There is not.
Preet Bharara: There’s not.
Anne Milgram: There is not, and it did look like there was going to be continued litigation in an effort to do it. There was one interesting thing that’s happened in the past week and I don’t think we’ve had a chance to talk about it, which is, we talked about how the Department of Justice Attorneys asked to be removed, essentially to come off of the litigation involving the census case, and judge Furman refused to allow them, in the southern district, to come off of that case. I’m not sure whether these things are all related to the administration’s ultimate decision not to push forward with putting the question on the census-
Preet Bharara: It may be.
Anne Milgram: … but it’s possible to me as well.
Preet Bharara: Yeah, I think that was incredibly important. I actually wrote about it in the CAFE Insider newsletter last week, so some of the listeners may have seen that, because it happened after you and I recorded last week. I think it’s incredibly important. Look, you can’t just sweep in and sweep out, wholesale, all these attorneys, in a case where there is not just speculation but proper conclusion that lawyers, I think, didn’t want to have to go back on their word. They said over and over and over again, “June 30th is the deadline,” and they’d already pushed the argument as far as they could. For them all now to go back into court and say the opposite is true, people have to think about their own bar licenses and their own ethical responsibility as well.
Anne Milgram: I think the judge was right to say, “Look, you have to provide a reason. You can’t just walk in and say, ‘We’re swapping lawyers at the 11th hour. You have to basically provide a compelling reason why this makes sense, because these are the people who know the case.'” That-
Preet Bharara: He’s consistent with the rule. It wasn’t like he was making it up and over-exercising a power that he did not have. People think you just withdraw as a lawyer. In criminal cases for example, it can work really and do harm with respect to the defendant, if at the last minute a lawyer decides to withdraw. You have to get the permission of the court and the court is able to inquire as to what the reasons are, and he got no reasons and I think he may be onto something. But we still thought the president was going to fight this in dramatic fashion. He had a press conference flanked by the outspoken Attorney General Bill Barr and the mute Commerce Secretary Wilbur Ross, who… I was excited to hear him speak.
Anne Milgram: Yeah. I don’t think I’ve ever heard him speak before.
Preet Bharara: He sound like Mr. Magoo.
Anne Milgram: He does.
Preet Bharara: I think he does.
Anne Milgram: He went to Rutgers my alma mater by the way. Yeah, nice. I mean, he is a fictional character who went to-
Preet Bharara: He didn’t say-
Anne Milgram: Yeah.
Preet Bharara: Mr. Magoo went to Rutgers?
Anne Milgram: Fictionally, yeah.
Preet Bharara: Oh, I didn’t know that. I [inaudible 00:54:24] Wilbur Ross-
Anne Milgram: Wilbur Ross, no I have no idea.
Preet Bharara: Anyway, [inaudible 00:54:26]. Essentially the president said, “We’re not going to proceed.”
Anne Milgram: “We have all the data we need anyway.”
Preet Bharara: We have all the data we need, which what the Supreme Court said, “There are less restrictive ways to get at this information.” Nobody’s saying, the country shouldn’t know who’s a citizen and who’s a non-citizen, and how many you have of each. Perfectly fine.
Anne Milgram: I shouldn’t admit that I had a moment of-
Preet Bharara: Zen?
Anne Milgram: No, smirking. That’s not the right word. I had a moment of… I don’t even know how to describe it, but when they were talking about building this massive data system in the federal government… I spent a lot of time working on data in government in general and it is unbelievably… When you think about you can order groceries online or you can get something delivered tomorrow by Amazon or even today, the federal government, I would not call them data savvy. I would basically say they’re equivalent to your grandparents typing on AOL, trying to figure out how to, I don’t even know, to download something.
Anne Milgram: There have been some great heads of technology for the United States government, no one has yet cracked the code of actually figuring out, the federal government, how to use and aggregate their data. I do think it’s still very possible that Trump will try to do this, will try to pull this information together, I personally do not see it happening tomorrow.
Preet Bharara: It was also notable, if you’re paying attention to how this looks for the president, I think it’s a victory for the rule of law. You have people who are wringing their hands, including Hugh Hewitt, conservative commentator, who wrote in The Washington Post a couple of sentences which I half agree with. He said, “There is no sugarcoating it, the president folded,” agree.
Anne Milgram: Yeah.
Preet Bharara: He said, “It’s a big loss for Trump, the attorney general,” agree, agree, “The constitution and the rule of law.” Disagree, disagree.
Anne Milgram: Yeah, disagree. I agree.
Preet Bharara: “Whatever you might say, it’s one of the few instances where the president decided to blunder forth, get over his skis and say, ‘We’re going to do X or Y’ and he’s not able to do it.” Even Hugh Hewitt recognizes that, and he doesn’t always agree with the president, but he’s a pretty big cheerleader for the president and his policies. What did you hear the Attorney General of the United States, Bill Barr say during that feckless press conference?
Anne Milgram: Yeah, that was a fascinating one.
Preet Bharara: What did he say Anne? Why don’t you [crosstalk 00:56:43]-
Anne Milgram: What he said, Bill Barr, speaking at the census press conference, it was like a party with all of them there. Comes out and says, “Congratulations again Mr. President on taking this affective action.”
Bill Barr: Over whether illegal aliens can be included for apportionment purposes. Depending on the resolution of that dispute, this data may be relevant to those considerations. We will be studying this issue. Congratulations again Mr. President on taking this effective action.
Anne Milgram: By effective action, I mean-
Preet Bharara: Caving completely.
Anne Milgram: Exactly. Giving in and acknowledging that you cannot win. It’s almost as if there’s this whole secret society around the president that has figured out that if you congratulate him and make him feel like he’s won, maybe you can stop him from doing something. I’m giving Barr too much credit by actually-
Preet Bharara: You had public events where there were other people and meetings. Did you ever have people-
Anne Milgram: Congratulations.
Preet Bharara: … “Congratulations, Madam Attorney General.”
Anne Milgram: Never. Did you have that?
Preet Bharara: No.
Anne Milgram: Yeah.
Preet Bharara: No.
Anne Milgram: No. There’s a level of… Yeah.
Preet Bharara: Orwellian.
Anne Milgram: Yes, there is something happening here. The other thing Barr did that I found deeply problematic, and there’s countless things which we could talk about related to all this, but Barr said that the Supreme Court would have gone with the president. He essentially said, at the census announcement, basically said, “Look, the government has ‘ample justification’ to inquire about citizenship status on the census.”
Bill Barr: In my view, the government has ample justification to inquire about citizenship status on the census, and could plainly provide rationales for doing so that would satisfy the Supreme Court. Therefore there is no question that a new decision to add the question would ultimately survive legal review.
Preet Bharara: I don’t know what that’s based on.
Anne Milgram: Yeah, you have no idea. He has no idea what the Supreme Court would do. In fact if anything, the indication from the Supreme Court was contrary to that. They basically said, “Go home and come up with a new excuse. The dog ate my homework is not sufficient. Figure it out and see if you can come up with something.” It may or may not have passed constitutional.
Preet Bharara: The whole press conference was an exercise in denial and not explaining to folks that the reason they were in the predicament they were was they lost in the conservative Supreme Court, on which sit two nominees, appointments by president Trump himself. John Roberts, the Chief Justice, did not agree with them because he essentially said, “You lied about your reason.” Maybe you can have a citizenship question. It’s inherently unlawful or inherently unconstitutional, but if you’re going to do it, you can’t lie about it, and they did, and that’s why they’re stuck where they are. Not a mention of that, not a whiff of that at all in their ceremony.
Anne Milgram: Yeah. They didn’t even reach the constitutional question. For Barr to say that it’s… It’s also just something that you and I don’t hear attorneys general talk about. It’s just not the way that an attorney general speaks as a role saying, “I’m telling you what another branch of government is going to do.”
Preet Bharara: In closing Ann, may I say something?
Anne Milgram: Yes, of course.
Preet Bharara: Congratulations Miss Milgram on taking-
Anne Milgram: On finishing a podcast-
Preet Bharara: … this very effective action which we call a podcast.
Anne Milgram: Congratulations [inaudible 01:00:11].
Preet Bharara: I accept your congratulations.
Anne Milgram: And I, thank you.
Preet Bharara: Send in your questions, folks.
Anne Milgram: We’ll answer them. Take care.
Preet Bharara: This is the CAFE Insider podcast. Your hosts are Preet Bharara and Anne Milgram. The executive producer is Tamara Sepper. The senior producer is Aaron Dalton, and the CAFE team is Carla Pierini, Julia Doyle, Calvin Lord, Vinay Basti, and Geoff Isenman. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.