Preet Bharara: From CAFE, welcome to CAFE Insider. I’m Preet Bharara.
Anne Milgram: And I’m Anne Milgram.
Preet Bharara: Hi, Anne.
Anne Milgram: Hey, Preet.
Preet Bharara: Welcome back.
Anne Milgram: Happy New Year.
Preet Bharara: Happy New Year to you. You found an aquarium in Spain?
Anne Milgram: We found one in Valencia, Spain.
Preet Bharara: That’s great.
Anne Milgram: It’s one of the biggest in the world, actually.
Preet Bharara: Well, did you love it?
Anne Milgram: It was great. I highly recommend it.
Preet Bharara: So we’ve got a couple of weeks off. Lots going on. I went to Israel.
Anne Milgram: How was it?
Preet Bharara: Amazing. Also Jordan. We saw-
Anne Milgram: Petra?
Preet Bharara: … Petra.
Anne Milgram: I’ve never been.
Preet Bharara: Yeah, we went to Tel Aviv, Jerusalem, lots of places. It was amazing. A lot to learn, a lot to eat.
Anne Milgram: Yeah.
Preet Bharara: We ate a lot.
Anne Milgram: Yeah. Spain, too.
Preet Bharara: We came back on a very long late night flight on Thursday, landed at JFK about 6:15 in the morning, no wifi, which was a blessing.
Anne Milgram: Yes.
Preet Bharara: I watched some movies and tried to sleep sitting up, which was hard to do. Finally, we connected to the world of the internet, and my inbox was inundated with emails and texts advising me that this guy named Soleimani, Qasem Soleimani, had been killed. So no reprieve on Friday. I was catching up on the news all day. When did you hear?
Anne Milgram: We were in Spain when I heard.
Preet Bharara: But it was the middle of the night for you, so you were asleep?
Anne Milgram: Yeah. We, of course, stay up late in Spain and sleep late in Spain.
Preet Bharara: Yeah, you party.
Anne Milgram: No comment. But, yeah, I heard, I think, later in the day. I was trying hard to be on a very low media diet-
Preet Bharara: Yeah, me too.
Anne Milgram: … because like you, I think we’re both constantly connected and reading media and listening to things. And so, I tried, for the two weeks over the holidays, always to step back a little. This year, I was really not able to for a number of reasons, including January 2nd.
Preet Bharara: So we should spend some time talking about this person who the United States killed in a strike.
Anne Milgram: Who you knew before this. You knew him.
Preet Bharara: Who I knew of. He’s not a household name, but he is, we should say, who he is or who he was. He was, among other things, the leader of what’s known as the Quds Force, part of the IRGC, the military arm of the Iranian government. Quds Force, among other things, engage in all sorts of nefarious activity towards people they deem to be hostile, including the United States, responsible for a lot of terrorism activity, responsible for the killings of a lot of people, including Americans.
Preet Bharara: The reason I know about the Quds Force/IRGC professionally, when I was US attorney, we had a number of cases, including a couple that got a lot of attention, one of which has been in the news lately since the killing of Soleimani, and it involved a Quds Force-affiliated plot back, I think, 2011 or 2012, to assassinate the Saudi ambassador to the United States in a fairly-
Anne Milgram: In New York, right, or-
Preet Bharara: In D.C.
Anne Milgram: In D.C., okay.
Preet Bharara: In fact, a particular restaurant in D.C., Café Milano, which is a-
Anne Milgram: I’ve been there.
Preet Bharara: It’s hype, it’s hype restaurant where a lot of prominent people go to eat. They planned to blow the place up with the Saudi ambassador and then blow up other things after that, aware of the fact, according to the plotting information, that maybe 100 or 150 Americans incidentally would be killed in connection with that plot.
Anne Milgram: And that was disrupted.
Preet Bharara: That was disrupted. We charged a guy named Manssor Arbabsiar, who’s now serving 25 years in prison, who decided to engage in the plot with a drug enforcement confidential informant, with a DEA confidential informant. So there was no real danger ever because the confidential informant, the CI, was working with law enforcement, who were able to disrupt it and put an end to it. But we made an announcement of it with Eric Holder, the attorney general at the time, Bob Mueller.
Speaker 3: I’d like to introduce the US Attorney for the Southern District of New York, Preet Bharara.
Preet Bharara: Thank you, Assistant Attorney General Monaco. The complaint unsealed today reveals a well-funded and pernicious plot that had as its first priority the assassination of the Saudi ambassador to the United States. The details of that murder plot are chilling to say the least, as the defendants allegedly had no care or concern about inflicting mass casualties on innocent Americans when a confidential source noted that there could be 100 or 150 people in a fictional restaurant where the requested bombing would take place. The lead defendant, acting on behalf of a component of the government of Iran, said, “No problem,” and, “No big deal.”
Anne Milgram: Why was it your case?
Preet Bharara: Because we’re the best.
Anne Milgram: I understand. Well, that’s a given. That’s a given. But if it’s in D.C., explain to me the New York Southern District connection.
Preet Bharara: Well, it is a case that I think I can say the FBI director personally called our office and said, “We want the Southern District to handle this.”
Anne Milgram: Because you’ve done a lot of terrorism cases.
Preet Bharara: A lot terrorism. And I’m not speaking about me, I’m talking about the folks in the office, really expert at doing this kind of national security work.
Anne Milgram: And you understand the regional [crosstalk 00:04:24].
Preet Bharara: Yeah. I immediately called in the chiefs of my terrorism unit. We were given the basic facts and they said, “What do you think? You think you can handle this?” I said, “Yes,” and we did. If your question is why the case was appropriately brought in the Southern District of New York, as you know, in connection with any conspiracies, some act has to have taken place in the district. I was asked this actually at the D.C. press conference, and they were wire transfers made through to the CI, who was demanding a bunch of money.
Anne Milgram: And it went through banks in New York.
Preet Bharara: And it went through banks in New York.
Anne Milgram: Wow!
Preet Bharara: That’s [inaudible 00:04:51].
Anne Milgram: Well, you could always get jurisdiction, Preet, in some way.
Preet Bharara: I could always get-
Anne Milgram: It’s amazing.
Preet Bharara: I’ve got a teacher that says that. In the second case, we charged a number of Iranian nationals, who, again, affiliated with the IRGC, who decided to engage in cyber warfare against the United States. They engaged in a pretty massive DDoS attack, distributed denial of service, against a lot of huge financial institutions in the United States. Didn’t cause any particular harm, didn’t steal money, but it was a sign that they have-
Anne Milgram: It shut down people’s banks, right?
Preet Bharara: For periods of time. Then more alarmingly-
Anne Milgram: Like their ability to do online banking and such.
Preet Bharara: For periods of time. Basically, it’s an inundation. It’s like if you call a number nonstop, it brings down the server. But even more disturbingly, they got access to and tried to hack a local dam in the suburb of New York, the Bowman Dam.
Anne Milgram: An infrastructure.
Preet Bharara: Yeah. It was just a sign that they are-
Anne Milgram: It’s a big dam.
Preet Bharara: … trying to do things with respect to infrastructure in the United States. Again, this was a number of years ago, before there was this huge incitement with the killing of Soleimani. And so, they’ve been engaged in this kind of thing for a while. One of the things that’s interesting, which we’ll get to later, is what can we expect in response.
Anne Milgram: Yeah. [crosstalk] talk about that.
Preet Bharara: We have some indication of what things had done before. At the outset, before we get into the legal issues, to be clear, Soleimani is a terrible, awful person. I and you should not shed any tears for his demise. He’s responsible for a lot of terrible things, including the killing of Americans and others. And so, generally speaking, I’d say good riddance to this guy. I have no sympathy for the guy.
Preet Bharara: The questions that arise are, notwithstanding that there a lot of bad guys, you and I were discussing this before, was it a smart thing to do or not a smart thing to do? Is it a thing that made us safer or didn’t make us safer? Then we can discuss the legal aspects of it, too.
Anne Milgram: Yeah. I mean, look, I agree completely. He’s a terrible guy, and we should talk about how and why because he’s really a fascinating character in so many ways. Really what I didn’t recognize at first on January 2nd, when I saw this news, was the stature that he has in Iran. I think that if people watched the funeral yesterday, that with the supreme leader of Iran crying with millions of people at the funeral, they got some insight into the fact that he became a really public figure and really the number two person in Iran, and is seen by Iranians as their protector, as their hero of national security, and that includes people who are hugely aligned with the Iranian government and against opposition folks within the country.
Anne Milgram: I didn’t understand his level of stature, but what he has done very effectively really since 1979, the early ’80s, is form basically these militias, these Shia militias, throughout Iran, throughout the Middle East really, also all over Iraq, and he’s formed alliances with Hezbollah, Islamic Jihad, a host of other Hamas, obviously the group in Iraq that’s at issue here that we’ll talk about in a little bit.
Anne Milgram: He’s done this and he’s created … It’s almost like a spider with a lot of legs or a hydra with a lot of heads, where he’s created all these small factions that have then engaged in these actions of terrorism such as attacking US sites, killing US military personnel, but also supporting Assad in Syria. He’s really been just a critical part of the Middle East, the power structure there.
Anne Milgram: And so, I think you’re asking the exact right question, which is … And we talked about this a little bit before, he’s a terrible guy, there are lots of terrible people in the world who commit war crimes and do horrific things that are not killed by the US government. And so, the question, I think, in both of our minds is: is this something that will make us safer? Is this something that makes us less safe? Frankly, in my mind, there’s also did Trump actually understand fully what he was unleashing and what he was doing?
Preet Bharara: Right. So let’s talk about what happened immediately before the strike was authorized. One, there was a killing of an American contractor in Iraq. There was the storming of the American Embassy in Baghdad, Iraq, which was believed to be at the behest of folks.
Anne Milgram: After the US retaliated. Let’s go back just a little bit, because I started reading all this stuff on the 2nd, and now I’ve read more fully and have a better picture of this in my mind, which I think is just worth going through quickly, which is that I think this all goes back to President Trump’s decision to come out of the Iran nuclear deal.
Anne Milgram: So the President decides the Iran nuclear deal was basically trying to get Iran to not build nuclear weapons. It had been struck by Obama. Trump comes in, says it’s a terrible deal. We were rewarding Iran for not building nuclear weapons, and he basically pulls out of it.
Anne Milgram: At that point, the United States imposes sanctions on Iran, which essentially has a huge impact on Iran and cripples their commerce in many ways. The United States government says to other countries, “You make a decision. You do business with us or you do business with Iran.” Of course, the United States is a world power economically, and companies decide that they’ll do business and countries decide that they’ll do business with the US.
Anne Milgram: That leads to this back and forth and very high level tension that escalates with a number of attacks on US sites, small-level sites. But then on the 27th of December, one of the Iraqi Shia militia groups, the Hezbollah Brigade, they engage in an attack where they kill a United States defense contractor. The military uses defense contractors a lot now. He’s there working for the US military and is killed.
Anne Milgram: At that point, the US retaliates two days later on the 29th of December. Five strikes, F-15 strike, five sites, where they believe the Shia militias are located. They kill 25 people that they believe are Shia fighters. Then on December 31st, the last day of 2019, the US Embassy in Baghdad is stormed by members of the Shia militia and others.
Anne Milgram: Eventually, the folks who’ve stormed the embassy pull back and people are chanting, “Death to America.” That escalates to the point where the President of the United States, on January 2nd, orders the killing of General Soleimani.
Preet Bharara: Just to be clear, when we say the United States, that was an order directly given by the President of the United States. If you believe the reporting in The New York Times and elsewhere, military leaders gave a menu of options to the President, as is often done, that constitutes a wide range.
Preet Bharara: The reporting says the following … I don’t know if it’s true or not, but it’s interesting to note that military commanders weren’t really favoring the idea of killing Soleimani, but they decide to put that option on the list in part, according to the reporting … I keep emphasizing the reporting because I don’t know and I want to be very careful about this, in part to make the more moderate responses and the more rational responses more palatable to the decision-maker, who’s the President, and he decided that it was okay and appropriate to order the killing of Soleimani. So now he’s dead.
Preet Bharara: The question arises was that a lawful killing or not? Now at the end of the day, I don’t know if the legality of it matters a whole hell of a lot. I don’t know who’s going to sue anybody. I don’t know what the enforcement mechanism is. I think it is interesting and we should talk about it, and lawyers like us should explain to the public, for purposes of this killing and also just for purposes of how the executive branch carries out its responsibilities-
Anne Milgram: And also how vast the power of the executive is right now [crosstalk] conversation.
Preet Bharara: Yeah, because maybe they need to be reformed. I had Jack Goldsmith, a Harvard law professor and expert on national security law. He’ll be on Stay Tuned this week, but I interviewed him yesterday. One important facet of this is to determine whether or not, like in other areas that we’ve been talking about with the President, does he have too much authority? Have we let the executive branch get out of control? Is Congress not doing enough? It’s, I think, important for that purpose as well to see what in the future limitations and constraints we should put on the President’s power, if any, because you need a strong executive.
Preet Bharara: But at the end of the day, the question really is was it wise or stupid? Does it make us less safe or more safe? The legality of it, particularly when you’re talking about a person like the President of the United States, where there are arguments to be made, whether they’re strong or not strong. This is not like some other thing when you decide do I have to pay my bill or not pay my bill, and you can argue about it in the court. I don’t know that there’s any forum in which we’re going to determine this, and the deed is done and it can’t be undone.
Anne Milgram: Yes, I agree with that.
Preet Bharara: I guess the first thing to talk about is we have something called Article 2-
Anne Milgram: Of the constitution.
Preet Bharara: … of the Constitution of the United States of America. Article 1 relates to Congress, Article 3 relates to the judiciary, and the other branch wedged right there in the middle is the executive branch, and it’s fairly vague in what the President’s powers are.
Preet Bharara: Essentially, since the beginning of the republic, every president, no matter from what party, this includes Bush, it includes Obama, and now, of course, it includes Trump to varying degrees, but, generally speaking, has argued for a very, very wide berth and a lot of flexibility in conducting foreign policy and engaging in military activity, notwithstanding some constraints the Congress has tried to put on them. So right off the bat you have pretty broad authority. Some of these things have not been litigated.
Preet Bharara: So you have this institution that we’ve talked about a lot on the show in other contexts, the Office of Legal Counsel, the OLC, within the justice department, that over time has offered legal advice on what a president can or cannot do. Some might think, “Well, that’s silly. It doesn’t rise to the level of a law or a statute.” Yeah, well, in the absence of Congress deciding certain things like targeted killings by drones or other kinds of ability to take action on behalf of the United States, it provides something of a roadmap for presidential action.
Anne Milgram: Right. It provides a process. It’s important to note that so much of this, we’re talking about a very public killing here, but a lot of times these are covert actions undertaken by the US military. There is no public knowledge, there’s no transparency, there’s no debate. And so, what’s the process or the protocol that people follow? It’s often OLC opinions.
Anne Milgram: We’ve talked about this a lot in terms of the OLC opinion that says you can indict a sitting president. And so, we spent a lot of time talking about different OLC opinions, but it happens to be that in this space, as to the president’s authority, that there are number of OLC opinions that exist that are also not public.
Preet Bharara: In some ways, depending on the subject matter, an OLC opinion can serve as a kind of advanced pardon.
Anne Milgram: So you can’t get in trouble, if you could follow it.
Preet Bharara: Yeah. Well, if you rely on good faith on what an OLC opinion says one can do, you really can’t, in good faith, prosecute such a person. So that might make some people uncomfortable. As a general matter, if people are behaving properly, doing the analysis properly, and are being rigorous, you need … And every president, Democratic presidents included, Republican present included, need some legal guidance as to what they can or cannot do.
Preet Bharara: Look, the Obama administration, by the way, you’ll remember, cared a lot about this process. Trump cares less about it. Cared a lot about public and internal justification for the things they do, a little bit of hand-wringing and legal justifications. The President gave speeches. Harold Koh is the general counsel of the Department State, all engaged in rigorous analysis. They also caused OLC opinions to be written with respect to, among other things, targeted killing by drone, which is somewhat controversial, which was maybe something that wouldn’t have been able to be done before 9/11. We can talk about that in a minute. But there has been-
Anne Milgram: And Obama also oversaw the killing of Osama bin Laden. So it’s worth just noting that it’s not just the drone killing, but there are some high profile examples where the US government has acted against foreign terrorists essentially. And so, there are guide posts that exist.
Anne Milgram: Now I think, as you said it upfront, there’s a lot of debate about some of those guideposts and what they actually mean. Going back just to the Article 2 piece of the constitution, Obama didn’t rely on Article 2 of the constitution to argue in favor of the drone strikes and the other things.
Anne Milgram: There’s been a fair amount of reporting about this now that in part that’s because it’s understood to require a situation that is imminent and to be something where the president could not actually … There’s not enough time to consult with Congress. And so, the president has to act unilaterally, and we give the president a lot of authority under the constitution, but it’s not unlimited. As a rule, with the declaration of war, the president would go to Congress.
Preet Bharara: Yeah. So if you’re proceeding on a theory of self-defense, and it must be true no matter who the president is or what party’s in power, that the commander-in-chief has the authority and ability to take decisive action without the delay of going to Congress to protect national security and protect Americans.
Preet Bharara: I had a long conversation with this, again, as I mentioned, with Jack Goldsmith, who recites with, I think, some authority that this concept of imminence, what is imminent, is, his word, a very stretchy one in presence of taking the position, that it need not be something that’s happening tomorrow or the next day or the day after that. There is broad discretion to decide that in self-defense, someone who’s an avowed enemy of the United States or has been responsible for terrorist attacks that involved Americans before, presumably they’ll do it again. You don’t have to wait until they’re about to launch a strike against you to do something to take them out.
Anne Milgram: It’s just so interesting, and I’m just going to divert from this for one second to say it’s really contrary in many ways to existing American criminal law when you think about self-defense to, for example, homicide. You kill someone because you think they’re going to kill you. It has to be that you imminently fear for your life. The definitions are very strict. It can’t be someone says, “I’m going to kill you,” and you go back 12 hours later and kill them.
Anne Milgram: It doesn’t always have to be exactly contemporaneous, this is also true in domestic violence, spousal abuse, what imminent means for self-defense. It’s really narrowly restricted in American criminal law. I agree with you and I agree with Jack Goldsmith on this, which is that the imminence conversation in this context, in this international context, with aggression against foreign enemies, is very different.
Preet Bharara: The other thing is-
Anne Milgram: By the way, this isn’t congressionally defined. It’s also worth just saying that a lot of this has been done, as you know, through OLC opinions.
Preet Bharara: Yeah, and the reason for that is Congress has been, for decades now, quiet and they acquiesce, and over and over and over again, when the president takes some action, whether it’s the killing of bin Laden or various drone strikes or now the striking down of Soleimani. If in the aftermath of that, Congress doesn’t say anything about it, that itself then becomes a precedent that means the next person, or even the same present in the same term, can engage in that particular action. By the way, no lesser person than the Obama administration than Jeh Johnson, who was-
Anne Milgram: The former head of Department of Homeland Security.
Preet Bharara: Department of Homeland Security and also-
Anne Milgram: And was also the-
Preet Bharara: … the general counsel of the Department of Defense-
Anne Milgram: DOD, yeah.
Preet Bharara: … who helped to craft some of these policies in the Obama administration. He took the position that I saw on Sunday, essentially saying that it may not have been wise, it may not have been smart, and we’ll get to that, because I don’t think it was. But as a legal matter, the president had the authority to make this order.
Speaker 4: Jeh, explain for viewers why does Mike Pompeo keep saying “terrorist”? There is a legal reason he keeps saying the word “terrorist”, isn’t it?
Jeh Johnson: No, not necessarily. If you believe everything that our government is saying about General Soleimani, he was a lawful military objective. The President, under his constitutional authority as commander-in-chief, had ample domestic legal authority to take him out without an additional congressional authorization.
Anne Milgram: The one distinction, I think, between what we saw … And Obama was expansive on this. I think it’s important to be clear that since 9/11, we’ve gone in the direction of giving the president more and more authority, and expanding this again, as you say, to drone strikes and other acts where we’ve targeted terrorist organizations and individuals.
Anne Milgram: The one thing that feels different to me here, and I wonder what you think on this, is that when you think about killing bin Laden or killing al-Baghdadi, they’re not part of the state of a country. They are part of a terrorist organization. They run their own operations, but-
Preet Bharara: Well, he’s both.
Anne Milgram: Exactly.
Preet Bharara: That’s the complicating factor.
Anne Milgram: Exactly. Soleimani, he’s both the head and he runs all these Shia militia groups and oversees them. He’s got tentacles everywhere. But he’s also a general in the Iranian-
Preet Bharara: Of a sovereign state.
Anne Milgram: Yeah. He’s essentially, in many ways, considered the number two person in that country. I don’t want to say it’s the equivalent of Mike Pence. I don’t know because I don’t think Pence has the stature, frankly, that Soleimani had in Iran. I’m not sure what the right equivalent is, but-
Preet Bharara: I mean it could be the secretary of defense, if that becomes a huge figure.
Anne Milgram: I think it’s akin to MacArthur or Colin Powell or someone like that.
Preet Bharara: Some of the arguments you’ve been seeing in the press and on television has opposing factions arguing past each other, because the Republicans and the President’s supporters who were in favor of the attack keep emphasizing the terroristic nature of Soleimani. When we brought our case, we didn’t charge Soleimani. But, by the way, I will say that in the aftermath of the case we brought that involved the assassination plot against the Saudi ambassador, the treasury department identified by name, and specifically Soleimani, for sanctions.
Preet Bharara: Law enforcement has emphasized, in my time at least, that the terroristic side of Soleimani, supporters of the President emphasized that, but it also happens to be true that he has his official position in a sovereign state, unlike Baghdadi, for example, and unlike bin Laden.
Preet Bharara: The question is: is that relevant to the legal analysis or is that only relevant to the prudential analysis? Is it a smart thing and is it going to cause greater retaliation? Because countries have pride, what are they going to do about it? They have more wherewithal than maybe some of these non-state-affiliated terrorist groups.
Anne Milgram: Yeah, I think is relevant to both. Again, I agree with you. I think the legal debate is probably not exactly the right debate. Again, that’s because we’ve expanded this so much. But I think we should be clear that this is an additional step that hasn’t been taken before, to kill a member of a state government.
Preet Bharara: Well, it was. In World War II, is everyone-
Anne Milgram: Right, that’s true.
Preet Bharara: We learned a lot in history-
Anne Milgram: That’s one example. Right, that’s true.
Preet Bharara: … when apparently, with intentionality-
Anne Milgram: But we declared-
Preet Bharara: Declared war.
Anne Milgram: We declared war.
Preet Bharara: And which war? The worst war, World War II. With intentionality, the United States killed Admiral Yamamoto of Japan.
Anne Milgram: Yes.
Preet Bharara: First time since then.
Anne Milgram: Yes. I think it’s very clear, though, and what I think is distinctive is that that was a declared war. It was clear that it was an adversary in a formal military … There is still a difference there. Again, I’m not saying that that makes this illegal. I just think that it’s worth noting that the administration is taking a further step forward than we’ve seen before. Again, it becomes precedent if it’s not objected to by Congress. And so, we are now in a space where we’re deciding that the President of the United States can kill essentially heads or deputy heads, senior leaders of other states, if they come to a decision that there’s an imminent threat to Americans.
Preet Bharara: Yeah. Here’s the other reason why, notwithstanding the fact that we’re arguing against interest, because we’re lawyers and we like to talk about this stuff, while the legal argument is not so great, it doesn’t carry the day, is that if the purpose of having this discussion is to influence people and change people’s minds, not necessarily the President whose mind seems not to be able to be changed, but the people around him, it has to be argued, I think, on the dimension of policy and wisdom. Look, it’s been reported that both George Bush and Barack Obama may have had opportunities to take the same action-
Anne Milgram: And did not.
Preet Bharara: … and did not. But I have not seen anyone suggest that the reason they did not was that they were concerned about legality, but they were concerned about the Article 2 limited power.
Anne Milgram: They didn’t think it was the right decision.
Preet Bharara: They didn’t think it was the right decision because it’s going to cause others things to happen. By the way, I guess we’re pivoting a little bit to-
Anne Milgram: I want to stay on one point, with the imminence, just for a second because I thought it was a great point that was raised in the media, which is the administration’s now saying we had to do this because there was an imminent risk to American interest. Now one of the points that was made, which I thought was really important to notice, that the initial Pentagon statement about the killing of Soleimani did not mention imminent threat at all. And so, I think we also have to be really critical about … You and I are taking at face value a lot of the arguments that are being made.
Preet Bharara: You can’t lie.
Anne Milgram: But I think that there’s a fair question being raised of like what was the real motivation? What was the analysis that was done?
Preet Bharara: 100%. What’s weird about it is, given this conversation we’re having, that the President has a pretty wide level of discretion to do what he wants, why start off the bat by making some argument that may well be disproved, that there was some imminent threat in the way we understand it, there was going to be an attack within days or hours even, if it’s not true?
Anne Milgram: Right. I feel the same way.
Preet Bharara: Because you don’t need to have that. The other thing that hangs over all of this, we’re always having these rational conversations about whether or not a decision by an executive like the president is wise or not, is legal or not, makes sense or doesn’t make sense. We’re talking about President Trump. It would be one thing if it was a different president, who we feel was honest and above board and transparent and acting in good faith.
Preet Bharara: There’s nothing to suggest that he does that. You have the reporting of the military officials being flabbergasted that he chose this option. You have the common sense, I think, understanding that this is probably likely to cause immediate retaliation in the near term.
Anne Milgram: Against Americans around the world.
Preet Bharara: Yeah, because we didn’t destroy the Quds Force. We didn’t destroy the IRGC. We took out one guy. Maybe he had a special hold on a lot of folks in Iran, but he has a replacement. The people who actually carry the guns and the armaments and do the plotting are still there, and they might have things that are under way.
Preet Bharara: It would have been one thing to me if you said, “Well, we took that guy out and then we also did all these other things that were aimed at making sure that this particular bombing or strike or hostage-taking or kidnapping could not happen,” but it was none of that. It seems to me it was done a little bit out of …
Anne Milgram: Anger.
Preet Bharara: … Anger-
Anne Milgram: Yeah. It feels like that.
Preet Bharara: And not well thought out, because the President is belligerent. Look, some people have said this, some people on the campaign trail. I’m not saying it, but I think it needs to be asked for a couple of reasons, knowing the psychology of the President. Well, what are we talking about here?
Preet Bharara: You and I, in the last number of weeks, the first thing we talk about is impeachment in the House and the Senate. We’ve spent now 30 minutes, and we’ll probably do more, talking about this because it’s important. It involves national security. It comes first because it just happened.
Preet Bharara: But I think it’s not an unreasonable question to ask: was something in the President’s mind relating to a distraction from impeachment, one of the motivating causes of his doing this? If that’s so, that’s an astonishing, terrible thing. One reason I feel comfortable suggesting this is that there’s this famous clip that’s been circulating since Friday on the internet of Donald Trump, at the end of 2011, accusing Barack Obama of planning to attack and go to war against Iran for the purpose of gaining reelection.
Donald Trump: Our president will start a war with Iran because he has absolutely no ability to negotiate. He’s weak and he’s ineffective. So the only way he figures that he’s going to get reelected, and as sure as you’re sitting there, is to start a war with Iran. Now I’m more militant and more militaristic than the president. I believe in strength. But to start a war in order to get elected, and I believe that’s going to happen, would be an outrage.
Preet Bharara: You don’t have to have a psychology degree to understand that when a person thinks that that’s a possibility and he believes that President Obama was thinking about doing this, that’s the way that President Trump thinks. Here we are a few years later-
Anne Milgram: About to go to war with Iran.
Preet Bharara: … about to go to war, provoking Iran on the eve of an election that’s going to be very tough for him to win. It doesn’t take a rocket scientist to put two plus two together.
Anne Milgram: Can we go back one second on the military piece? Because you just raised something that I think is really important, which is that we’re not dealing with just any president. We’ve talked about George W. Bush, we’ve talked about Barack Obama. I really do think … And I question the reporting. I don’t know whether the reporting is right or not that the military gave this option to the President just to have it be an extreme option that he wouldn’t pick. If that’s true, it was incredibly bad judgment given who the president is. And so, you and I could have a much longer conversation, I think, probably about decisions we made when you were US attorney and I was attorney general, but …
Preet Bharara: The guy wanted to nuke hurricanes. Can we just remember that?
Anne Milgram: Yeah. When you’re talking about how do you respond to a hurricane, you should not walk in and say, “We could nuke a hurricane.” You have to take options off the table that you don’t think are reasonable. That’s why those people are in those jobs. If that does turn out to be true, I will be deeply disappointed that more discretion and judgment was not used.
Anne Milgram: Now it could be that the President said to them … And, again, I don’t want to go too far in this, but it could be the President said to them, “Give me every option, and I want the most extreme option,” in which case they would abide by that. But I just think it’s worth saying.
Preet Bharara: Can we talk about one more concept before we move on? That is this concept of assassination, which I find not a helpful discussion because there’s a legal definition, I guess, although it doesn’t appear in a statue to my knowledge. Then there’s the layperson’s understanding of what that means in the same way that people throw around the word “treason” with some recklessness.
Preet Bharara: Assassination is a concept, as I understand it, that means the killing of a leader of a country, or a top leader of another country, for purely political reasons, often in times of peace, not related to war. There happens to be no law specifically about it. There are laws against murder, there are laws against homicide, there are laws against all sorts of things.
Anne Milgram: Well, it’s an executive order by President Ford that says-
Preet Bharara: Correct.
Anne Milgram: … you can’t assassinate.
Preet Bharara: It’s a policy. Even if you engage in such a thing, it’s not a violation of law, it’s a violation of policy. Here, there’s all sorts of reasons to say this was not done purely for political reasons.
Anne Milgram: Yeah, I think it’s worth just talking about for one second because the administration is calling it a targeted killing and a number of people who are opposed are calling it an assassination. And so, just to go over it for two seconds, Gerald Ford issues an executive order in response to understanding that the CIA had a number of plots that were intending to target heads of states of countries that the United States did not agree with during peacetime, to take out those heads of state. Ford then comes in and says you can’t do this. Assassination is not defined in that executive order. It’s a presidential mandate and, of course, could be undone by Congress or others.
Anne Milgram: What happens in the Obama administration … And we’re coming to the 9/11 conversation and the congressional laws that are passed in 2001 and 2002. But what happens post-9/11 is the development of this idea of targeted killings, which is when does the United States have justification, because it’s self-defense and because there is such a threat to American interest, to do something that I think is extraordinary? I mean it’s one of those things that we don’t think about happening every day nor should it happen every day.
Anne Milgram: And so, there’s a whole line of these OLC opinions that form around that, which is it’s not an assassination, it’s what we call targeted killing and what justification levels do you need to get there. Just so people understand, the language is really intended by opponents to say this is illegal under the existing executive guidance and executive order and the targeted killing folks in the administration to say, “Oh no, there’s precedent for this. Look at Barack Obama, what they did with drone strikes,” and to try to fit it within that rubric.
Anne Milgram: Again, I would argue this goes beyond the existing rubric in some fundamental ways. It’s not clear that it’s unlawful, but it is to me a conversation we should have being honest about.
Preet Bharara: It pushes the envelope-
Anne Milgram: It pushes the envelope. [crosstalk] where we are.
Preet Bharara: … like everything else this president does. We’ve been talking about it for a year, whether it’s on ethics, on security clearances, on declassification of things. On each of these points, the President has some unique ability to figure out how to do what he does within the bounds, technically, because the central theme of a lot of discussion here and elsewhere is that people haven’t fully appreciated until now, we give a lot of leeway to officials in our government because there’s an expectation that they will exercise those powers rationally and with good judgment. When they don’t, all of a sudden, we gets up and realizes, “Oh, wow! There’s no law against that.” We’re just relying on their good sense.
Anne Milgram: You know what’s worth talking about just for a second is that when Osama bin Laden was killed, when al-Baghdadi was killed, nobody really blinked at the exercise of authority by the President of the United States. We were critical of Trump’s announcement of the al-Baghdadi, the bravado with which he did it, and the lack of professionalism, it felt to me, but there was no criticism of the underlying authority or act of the president.
Anne Milgram: This has been different, and it’s been different in fundamental ways. There’s been an outpouring of criticism and a real debate over is this legitimately within the president’s authority. But I think also there’s a question of should we be going to war with Iran? That’s what-
Preet Bharara: Yeah, which is a policy question.
Anne Milgram: Yes.
Preet Bharara: Look, I’ll tell you something, when we think of the logical extension of these arguments, and I think it’s just true that there’s a lot of authority, and people may like it or not like it. But since 9/11, we’ve had multiple presidents of both parties who have pushed the envelope of what a president is allowed to do, because we’re on, essentially, a warlike footing in a serious way since 9/11. Obama and Bush wanted to have more authority.
Preet Bharara: Some of those things have been taken back with respect to enhanced interrogation techniques. But we are leaps and bounds beyond where we were before 9/11 because the determination has been made, and Congress hasn’t said otherwise, that the president has to have a lot of power. But if you take the logic of how much power a president has, lawfully, to take out someone like Soleimani … And I had a conversation with Jack Goldsmith about this, and it’s worth people thinking about. I said, by that analysis, could the president lawfully … Maybe it’s unwise, but could the president lawfully order a strike tomorrow on the supreme leader of Iran?
Anne Milgram: Right. I think that’s-
Preet Bharara: You know what his answer was?
Anne Milgram: What?
Preet Bharara: Yes.
Anne Milgram: Yeah, I agree. I actually think that that’s-
Preet Bharara: Now how colossally stupid would that be?
Anne Milgram: Yes. But I think that that’s exactly the territory where in and we should be clear that that’s the territory we’re in.
Preet Bharara: There’s a lot of different authorities that overlap, sometimes conflict or create gaps. We talked about Article 2, we talked about the OLC opinions, we talked about presidential policy, but there are also these two things that you reference a second ago from 2001 and 2002 called the AUMF.
Anne Milgram: Right, so the authorization of use of military force. There’s one in 2001 that’s specifically, right after 9/11, relates to al-Qaeda and basically gives the US government, through congressional statute, huge authorization to basically go after al-Qaeda. And so, when you think about some of the conversation about bin Laden, it’s a little bit distinctive because there is a specific law that says when it comes to this, you have authority to do it.
Anne Milgram: Then there’s the 2002 authorization of use of military force related to Iraq. That gives very strong authority related to Iraq. People have raise the question here because, one, this isn’t al-Qaeda. In fact, the sort of Shia militia is not aligned with al-Qaeda. And so, people will make arguments that there’s some ways in which they’re similar, but the truth in my mind is that they’re actually very dissimilar and it just doesn’t fit under the 2001 statute in my mind.
Anne Milgram: The 2002 one is more complicated because that relates to Iraq. The killing of the defense contractor was by an Iraqi Shia militia group, the Hezbollah Brigade, that is a tentacle of Soleimani. And so, it goes back to Iran, but there’s an Iraq component.
Anne Milgram: There’s also an argument that I think is pretty strong, which is that the US troops that are in Iraq, that are there right now, are there to basically keep the peace, to do a number of different things, attacks on those. You could see the defense contractor who is there, that that falls under the 2002 law.
Anne Milgram: I think that it’s debatable. I’m not sure whether that’s right or not, but I think there’s a decent argument to be made that there’s authorization, or at least the imprimatur that there’s an argument to be made.
Preet Bharara: Yeah. But in this area, as we’ve been saying, if there’s an argument, the president wins, because there’s no way to countermand that. Also, there’s this concept that we’re in Iraq basically by consent. If the local Iraqis are unwilling or unable to protect us, then we can take actions on our own.
Anne Milgram: Yeah, it’s complicated, though, by the fact that Iraq has said that the US did not have consent to do this and has now asked the United States to leave. I think that’s right, but I think we are in unchartered territory and it is-
Preet Bharara: Just emphasize again, if you had a competent presidency, if you had a competent chain of command, if you understood that things were being done on the basis of the merits, and you had smart people who were not afraid to tell the president what’s what, then you can give an executive the benefit of the doubt. The President of the United States has lost the ability to ask for the benefit of the doubt on things like this.
Preet Bharara: By the way, that’s exacerbated by the news in the last day. You just mentioned that the Iraqi parliament voted to eject American troops from Iraq. Well, then all of a sudden there’s this letter sent from the Department of Defense to Iraqi leaders saying essentially we’re pulling out, which they had to withdraw. They said it was an error and it wasn’t signed.
Anne Milgram: Yeah, that it was a draft.
Preet Bharara: It was a draft, I guess like a typo, like they didn’t run spell check. I mean that’s a crazy thing to have happen.
Anne Milgram: It’s actually unbelievable. At that level-
Preet Bharara: It makes it impossible to trust the decision-making and the lead up to the authorization of the strike. I don’t get it.
Anne Milgram: Well, it looks like a deep level of incompetence that that would happen.
Preet Bharara: Then there’s another thing that makes you think, well, maybe the President has overreached, because there’s another context in which I think is quite clear and there’s virtual unanimity even within the President’s own defense department that the President is wrong, and that is when he says in Twitter we have 52 sites that we’re drawing up, some of those are very important culturally to the Iranian people. As everyone has reminded us over the last 72 hours, the deliberate targeting of a cultural site, because it is a cultural site alone-
Anne Milgram: Is a war crime.
Preet Bharara: … is a war crime, and not just under international law but under US law. When he gets asked the question, he doubles down on it, because remember Donald Trump ran on a platform of bringing torture back. He doesn’t care about the legality, he doesn’t care about the wisdom of certain things. He wants to be a tough guy. And you have our own Department of Defense saying quite clearly, I think in contradiction to what Donald Trump has been promising, that we will not engage in any strike, military strike, that violates the law, which clearly says we’re not going to be giving cultural sites as targets to the President of the United States. I don’t think they’ll make that mistake again.
Preet Bharara: To me, the relevance is not just that Trump is sometimes a maniac and he wants to engage in this certain kind of cultural war, but the fact that he’s so blithe about engaging in a war crime to me casts doubt on the decision-making and the quality and the purity of the decision-making with respect to Soleimani.
Anne Milgram: I agree. I agree completely. I also think there are a couple other points that are worth making, which is, first, there’s a real question in my mind of proportionality, which is usually when the American government uses force, and we use force against terrorists or others, it’s usually required at least, not even formally, it’s like there’s a fundamental … I don’t know if it’s the right thing to say, it’s fundamental fairness, but there’s a view that the US has to act proportionally to the harm that either has happened or will happen.
Preet Bharara: I think the President has literally said, using that phrase, that if Iran does anything, we will react disproportionately.
Anne Milgram: Yes.
Preet Bharara: Now, look, maybe you do that, I don’t know, but the fact that he’s so brazen about saying it-
Anne Milgram: You could even argue here also, if we think about it, that the killing of a US defense contractor, which is a terrible and horrific thing, then leads the US to kill 25 Shia militia members. Then the US kills the general of the Iranian Quds Forces, Soleimani. And so, there’s already a question of proportionality and whether or not we’re acting.
Anne Milgram: The US has incredible military capability, and that has to be used well and fairly. When you have the president then say, “We reserve the right to act disproportionately,” when I think there are already questions as to whether or not this was a smart move, it really raises concerns.
Anne Milgram: I think one of the things that I think both you and I probably feel, and I don’t want to speak for you, but we are on the verge of a war. Iran has now said that they will react publicly and use their military, which they usually don’t do. They use these Shia militias and others to bring attack. But they will retaliate against Americans and the United States government with the Iranian military and that they’ll do so publicly.
Anne Milgram: We are at war or about to go to war in a really fundamental way. I believe that Iran will target US citizens at home and abroad. I believe that they will target US interests. I believe that they will go into cyber warfare against US banks and other financial institution. I hope I’m wrong, frankly, in believing this, but there’s a level of destabilization that the President’s actions have now led to that they feel wholly unprepared to deal with.
Anne Milgram: There are a lot of potential consequences of what the President has done. Our colleague Lisa Monaco did a great op-ed yesterday in The Washington Post. She talked a lot about harm and potential harm that could be forthcoming to American citizens abroad and American interests abroad and at home.
Anne Milgram: She also talked a lot about the potential threat to financial institutions, like you talked about upfront. I think she was Obama’s homeland security advisor. It’s really just drilled home for me how much we are now in a situation where the retaliation will be deep and we will likely potentially lose American lives.
Anne Milgram: And so, if you and I sat here and felt that there was a concrete strategy and a plan, I would feel a lot better about what was coming than sitting here right now and having questions about what’s happened.
Preet Bharara: Yeah, because you could give the benefit of the doubt. You might disagree. Look, I’m not an expert. I haven’t seen the intelligence. I don’t work at the Department of Defense. I don’t work in the White House. I can imagine a scenario in which it’s a close question and people decided for the long term, not immediate but for the long term, security of the United States of America, because Iran is going to be hostile and it’s going to be difficult to control and may still seek nuclear weapons, that we need to take decisive action that’s symbolic and shock and awe and we take out Soleimani.
Preet Bharara: We tell them … This is an argument. I’m not making it, but this is an argument that can be made. And that going forward, they understand that we’re not going to tolerate any nonsense from you guys. We’re prepared to do things that are extreme and aggressive up to and including bombing the hell out of all sorts of things in Iran.
Preet Bharara: Then you might have analysis that tells you, well, they’re not suicidal, this regime. They’re aggressive and they’re tough and they talk a lot of smack. They will want to save face and they will engage in some immediate retaliatory attacks, but at a level where it wouldn’t invite an overwhelming American response. Over time, this is the best way to keep Iran in check and at bay. I might be able to maybe disagree with it, but appreciate and respect that analysis if it was done by an administration that wasn’t shoot from the hip. This is not them.
Anne Milgram: Yeah. No, it’s not them. I think that that’s part of what causes concern. We should also talk about ISIS just for a second because it’s a part of the debate at the periphery, but I think we haven’t spent enough time thinking about what this will do to the fight against ISIS.
Anne Milgram: Soleimani was a terrible individual who killed Americans, and we should not shed any tears over his loss. He was one of the lead fighters against ISIS. He was, in fact, sort of a de facto American ally in that. And so, there’s a level of destabilization in this region that exists and already existed that is now compounded in a way that we should all be thinking about how do we continue to fight against ISIS. We now are worried not just about Iran, but we also have to be really concerned about ISIS.
Preet Bharara: I’m going to make a hard pivot. Are you ready?
Anne Milgram: Yes.
Preet Bharara: So do you know who is widely believed to desperately want a war with Iran?
Anne Milgram: John Bolton.
Preet Bharara: John Bolton. How do you like that? Pretty good, right?
Anne Milgram: That was a good pivot, yeah.
Preet Bharara: John Bolton, when he was finally back at work, I think he’s got a little bit of a flair for drama, unclear what-
Anne Milgram: I think he’s more than a little bit of a flair for drama.
Preet Bharara: He’s got a big flair, a big flair for drama.
Anne Milgram: Yes, that’s what I would say. Yes.
Preet Bharara: Monday morning, everyone’s back at work, finally, after the long holidays, he announces, “I have engaged in a lot of analysis-
Anne Milgram: Over the holidays.
Preet Bharara: … over the holidays, under the mistletoe, and I have concluded that if I’m subpoenaed by the Senate-
Anne Milgram: Yes, very specifically.
Preet Bharara: … I am prepared to testify.”
Anne Milgram: Yes.
Preet Bharara: That was a shockwave in what had been a little bit of a dormant story.
Anne Milgram: It’s kind of like saying, “I’m prepared to follow a lawful order.”
Preet Bharara: Right.
Anne Milgram: But yes, but yes.
Preet Bharara: Interesting gambit. A lot-
Anne Milgram: Designed to get attention, for sure.
Preet Bharara: Well, not only get attention, he asked people on Twitter to go to his website to see his statement, a website in which I think he’s asking for contributions to his PAC. That on top of the book deal, it’s a little bit cute. This guy’s a little bit cute.
Preet Bharara: The one way in which I think it’s cute is that he’s very specific about saying, “I will obey a subpoena issued by the Senate to come and testify.” So maybe he’s doing that, some people speculate, because he knows that the chances of being subpoenaed by the Senate run by the Republicans …
Anne Milgram: Is slim.
Preet Bharara: … is slim to none. I don’t understand-
Anne Milgram: I don’t think that’s the case, though, because I think-
Preet Bharara: Maybe not.
Anne Milgram: The reason I don’t think that’s the case is by putting it out there so publicly, it’s so clear that he has relevant knowledge of what happened.
Preet Bharara: And new knowledge.
Anne Milgram: And new knowledge, which he says explicitly. There’s also the emails that have now been disclosed and have been written about, which show that there was this huge dispute between the Pentagon and OMB. It’s reported that Bolton had a meeting with Trump with others where he was seeking to have the money released to Ukraine.
Anne Milgram: So it’s so clear that he’s a really important witness in this whose testimony has not been given or taken in any way. It just feels to me like it’s a little too cute of a move. It’s a move to sort of … It explodes a lot of these conversations about should he testify? Should he not? Does he have anything relevant to say?
Preet Bharara: Right. So the question is what’s going to happen? Some people have been speculating that this puts a lot of pressure on Mitch McConnell to now have this witness testify. I don’t know what that means. I don’t think that Mitch McConnell’s capable of feeling pressure. This is the same individual-
Anne Milgram: I feel the same way, yeah.
Preet Bharara: … who didn’t feel any pressure on a much larger scale to have a hearing from Merrick Garland and have a vote on Merrick Garland.
Anne Milgram: I feel the same way.
Preet Bharara: So I don’t think he gives a damn.
Anne Milgram: I don’t think he gives a damn. I think he’ll only give a damn if the four Republican senators who he needs, it’s a majority rule to make the rules of the impeachment trial. And so, McConnell needs to keep the four Republican senators.
Anne Milgram: What Bolton’s statement does is makes it harder for people like Susan Collins and Alaska Senator Murkowski and Utah Senator Mitt Romney, this swing Republicans, on these questions of the-
Preet Bharara: Well, I don’t know if they’re just talk or if they really mean it.
Anne Milgram: They might be, but it definitely puts pressure on them, I think. It puts pressure on them, because how do you say … Like there is this question of how do you say that you don’t want to hear in the President’s impeachment trial from a member of the President’s administration who has now come out and said, “I’m willing to testify and I have relevant knowledge”?
Preet Bharara: Yes, but they will say that and they’ll say, “I want to hear from him,” but that doesn’t mean they’re going to use their clout-
Anne Milgram: To get it.
Preet Bharara: … to force it to happen. They’ll say, “Look-
Anne Milgram: I agree with you.
Preet Bharara: … that’s what I wanted. McConnell did something different. I had misgivings. At the end of the day, the process [inaudible] the majority leader.” By the way, we’re presupposing something in this conversation, and that is what the nature of his testimony would be and would it be positive or negative for the President. You agree with me that it would be nothing, but negative for the President.
Anne Milgram: That’s what I believe. I believe it will be negative for the President.
Preet Bharara: And so, what about this question of whether or not if a subpoena issued from … I’m a little bit surprised. I thought maybe there would be an immediate subpoena from the House. Remember, I think they never issued a subpoena because they knew that Bolton wouldn’t testify because he had this litigation that was proceeding, where his-
Anne Milgram: Well, they had subpoenaed his deputy, Charles Kupperman.
Preet Bharara: His deputy had a litigation proceeding, but it implicated his rights as well.
Anne Milgram: Let’s just stop on that litigation for a second because a number of folks wrote us questions about it, which is to say what does it mean that the court dismissed the litigation related to the deputy as moot, which is basically say the House withdrew the subpoena against Bolton’s deputy because they’ve moved forward with the impeachment proceedings, an impeachment, they withdrew the subpoena.
Anne Milgram: At that moment in time, the judge, I believe, rightly said, “There’s no longer an issue here. It’s moot. It’s not relevant because there’s no pending subpoena that I have to rule on.” And so, that’s why that went away. But it did appear like Bolton was sitting back waiting and watching what happened in that court case to make a decision about what he would do with the House.
Preet Bharara: So what happens if the House issues a subpoena now for John Bolton? Can he credibly refuse to come testify?
Anne Milgram: Personally, I think no. The reason I think no is how do you distinguish between a lawful subpoena from the United States Senate versus a lawful subpoena from the United States House of Representatives?
Preet Bharara: I don’t know, but he’s a clever guy.
Anne Milgram: He is a clever guy and he may play a game on it. But I think, at some point, he and others have to understand that the public does see through these types of efforts. If he wants to testify, there’s an open door and an open invitation for him to go to the House. They could drop a subpoena tomorrow. I personally believe that they should have subpoenaed him. We’ve talked a little bit about that.
Preet Bharara: You’ve said that early on.
Anne Milgram: Yeah, we’ve talked about it. And so, I think we’ll never know the answer to the question what would he have done if he was subpoenaed by the House, but he certainly could be subpoenaed by the House now. My guess, and I’d be curious to know your thoughts on this, is that the house waits to see if the Senate will subpoena him. If the Senate does not subpoena him, that the House will.
Preet Bharara: I’d have to think about it more, but I don’t know why there’s any harm in just-
Anne Milgram: Dropping it today.
Preet Bharara: … getting that subpoena out there.
Anne Milgram: Yeah, I would. I would.
Preet Bharara: Also, it will cause people to have this discussion-
Anne Milgram: Which is why we do [crosstalk 00:48:51].
Preet Bharara: … of what’s the rational basis of saying yes to one and no to the other, because the House has not concluded. They voted on articles of impeachment, but they’re continuing.
Anne Milgram: Yeah, and he could be deposed and … Yes, completely.
Preet Bharara: The other thing that this raises, the other question that gets raised by this is was Nancy Pelosi super smart to delay the conveyance of the articles of impeachment because this happened? I think, and I’ve written, that as a short-term ploy, I think it’s fine. You try to argue as much as you can for a more fair process at a trial, but as a long-term strategy, it doesn’t really work. I don’t know that Pelosi, who I think is the-
Anne Milgram: I don’t think it will go on for a long time.
Preet Bharara: Also, I don’t think this was really foreseeable-
Anne Milgram: No, I agree.
Preet Bharara: … that suddenly you’d have this happen, but it does strengthen the hand.
Anne Milgram: Yes, I agree.
Preet Bharara: I don’t know how much.
Anne Milgram: Agreed.
Preet Bharara: While we’re on the subject of the Senate trial and what the nature of it will be … So you have this impasse. Nancy Pelosi has not conveyed the articles of impeachment. People on the Democratic side are now saying, “Well, her position is bolstered because of the John Bolton news.”
Preet Bharara: Now you have Lindsey Graham saying something that I predicted that he might, but I don’t think it necessarily works, and that is, “We’re going to wait a reasonable period of time,” which is soon, just a few days, “and then we will change the rules of the Senate and we’ll proceed with the trial,” which will be more of a joke trial.
Preet Bharara: The reason they can’t proceed, which is something I didn’t fully appreciate back in mid-December, as I now understand the rules is, it’s not that they can’t proceed with the trial because the articles have not been conveyed, it’s that they can’t proceed with the trial because the managers have not been named, the House managers, because what would that look like? You say, “We’re going forward with the trial,” and then the prosecution doesn’t show up. It’s a super sham of a trial.
Anne Milgram: Yes. Apparently, the articles are published in the congressional record. And so, they do become a part of the record of the United States Congress. But the managers, until they’re named, do not. That’s the key.
Preet Bharara: What you basically have is a standoff between the Democrats who want to have witnesses and you have Republicans who say, “We don’t need witnesses,” Lindsey Graham chief among them. But then you have other people weighing in, like Marco Rubio. Remember him?
Anne Milgram: Yeah.
Preet Bharara: He tweeted-
Anne Milgram: I’m sorry, you’re making me think about him again.
Preet Bharara: He tweeted yesterday the following: “Worth repeating. The testimony and evidence considered in the Senate impeachment trial should be the same testimony and evidence the House relied upon when they passed the articles of impeachment. Our job is to vote on what the House passed, not to conduct an open-ended inquiry,” to which I and many others responded not correct.
Anne Milgram: Ridiculous.
Preet Bharara: In no world in which you and I have ever lived, and I know this is different, does the trial get limited to only the witnesses that were put into the grand jury proceeding to produce the indictment, which is what impeachment is.
Anne Milgram: Exactly, yeah. I mean in an impeachment are the charges that have been leveled against the President of the United States now. One of the things I keep coming back to, and that I’m so offended by, is that the charges have been brought against the President, it has to be left to the House managers to decide how to prove that case.
Anne Milgram: To me, they need to be able to marshal the evidence, whatever that evidence is, whether it came out in the House or whether there’s additional evidence to try to prove that the President did engage in this behavior and should be removed from office. To not allow them to do that is rigging the results of that trial.
Anne Milgram: And so, it’s this talking point that’s now happening in the administration. Rubio’s is the most extreme example of it. But there are a lot of people who are giving some version of the evidence is what it is, we don’t have to have witnesses. We’ll just have opening and closing statements based on that evidence.
Anne Milgram: That is completely undercutting the function of Congress in impeachment, which is the House representatives impeaches, then the House managers gets to prove their case and they get to marshal the evidence and facts that they can in order to prove that case. To basically say you don’t get that opportunity is to create a kangaroo court.
Preet Bharara: In fairness, the Clinton precedent is not quite what Democrats are arguing for now. There are clips of Democrats from back then saying one thing and saying a different thing now. There are clips, I think, most jarringly, of Lindsey Graham saying one thing then and saying-
Anne Milgram: Agreed. Yeah.
Preet Bharara: There’s a clip I saw this morning of Lindsey Graham arguing very vehemently and passionately about the need for witnesses. Every trial that has ever occurred in the history of America and in the world going back to Roman times, and exaggerating-
Anne Milgram: Pretty much.
Preet Bharara: … has had witnesses and he’s now saying something different now. So there was a little bit of posturing on both sides.
Anne Milgram: Yeah, everybody’s … Yes. But I’m saying forget the politics for a second, just as a matter of what the constitution intends and sets up.
Preet Bharara: And what fairness requires.
Anne Milgram: Yes, is that you have to be able to make your case and to call the witnesses that you think are relevant and important. One other thing worth mentioning that’s going on related to Congress is that there’s the pending litigation about Mueller’s Report, the redacted grand jury testimony and there’s also a pending litigation. Both are before the D.C. Circuit.
Anne Milgram: The second pending litigation is on the subpoenas to Don McGahn to testify. The court heard arguments last Friday, on January 3rd, and is likely to rule … I don’t want to say quickly. Nothing has happened that quickly in those matters. But the court has fast-tracked this as much as the D.C. Circuit fast-tracks cases, and is likely to rule on whether or not the Congress gets access to the unredacted grand jury material and to McGahn’s testimony.
Anne Milgram: What’s important, and it’s worth noting, is that if the House wins in either of those efforts and they are seeking that evidence as part of impeachment inquiries and also for congressional oversight, if they win that does significantly strengthen the House’s hand in the larger conversation about impeachment in the Senate trial. What do you make of the Joe Biden stuff, Preet, the-
Preet Bharara: All the stuff gets lost because it gets superseded by other crazy news. But Joe Biden made a statement when the suggestion was made that he would be subpoenaed. He said, essentially, “I’m not going to come and testify.”
Anne Milgram: That was his first reaction.
Preet Bharara: It was his first reaction. He got a lot of criticism from Democrats for acting in the same way that some of the Trump administration witnesses have asked, and there was a better way to say it. So then he revised his statement essentially to say, “I will always do what’s lawful and correct and right.” But the initial response gave a little bit of grist to opponents for saying, “Oh, great. Your guys can say they don’t want to come testify.”
Preet Bharara: Now there’s a huge difference between the relevance and appropriateness of calling, for example, John Bolton, who is a direct high ranking eye witness to potential illegal conduct personally on the part of the President of the United States versus this extraneous, crazy thing that in no trial I’m aware of would a judge permit the examination of someone like Joe Biden, because-
Anne Milgram: Still. I agree with you-
Preet Bharara: Still. Still.
Anne Milgram: … but still the argument is … You and I have both been very critical, and I remain very critical, of the administration for not heeding congressional subpoenas or walking into a court and saying, “We don’t want to heed this and here’s why. Here’s our objection to it,” by basically just saying, “We’re above the law and we don’t have to follow this.” And so, for Biden to say anything remotely similar, even though he should not be called as a witness, he should not be subpoenaed, felt problematic to me.
Anne Milgram: I also personally kind of thought that it wouldn’t be a terrible thing for him to be subpoenaed, that it would be pretty quick and obvious to see that he has no relevant knowledge to this, that he’s the dad of-
Preet Bharara: No, it’d be a side show. It’s creating a smokescreen and a distraction from the President’s conduct. This is a concept that’s hard for people to sometimes understand because this sounds weird when I say it, but I’ll say it again. Even if Hunter Biden and Joe Biden committed a series of crimes, absolutely did, that doesn’t change one bit the criminal activity of the President of the United States.
Preet Bharara: If you accept that it’s an unlawful abuse of power or an impeachable abuse of power, whether or not there’s a legitimate case to be made against Hunter and Joe … And, by the way, there’s no evidence of that … it is still an abuse of power for the President to shake down the leader of another country and withhold money from that country for the purposes of getting an announced investigation of your rivals, plain and simple.
Anne Milgram: Yeah, I agree. Look, the bottom line is that there’s no reason for Biden to be called as a witness, and it should be made clear publicly that that’s the case. But the idea that you don’t follow a lawful subpoena is problematic. And so, I think Biden’s second statement, his follow-up statement of like, “Look, this is a farce, and we shouldn’t even be having this conversation. But, yes, I would follow lawful subpoena.”
Preet Bharara: Yeah. He’s like, “Look, we’ll see you when the time comes. I don’t believe I have anything relevant. I believe it’s a smokescreen. I believe it’s politics-
Anne Milgram: Yeah, I think he should have said, “There’s no reason to subpoena me. I have nothing to add.”
Preet Bharara: … because he thinks I’m going to beat him like a drum. But I obey the law.”
Anne Milgram: Yes, agreed.
Preet Bharara: He wasn’t advised well on that. We’re back again next week on Tuesday.
Anne Milgram: Yes.
Preet Bharara: I presume there will be-
Anne Milgram: A lot to talk about.
Preet Bharara: … a lot to talk about.
Anne Milgram: I agree.
Preet Bharara: It’s good to be back.
Anne Milgram: Good to see you.
Preet Bharara: Thanks, folks. Send us your questions.
Anne Milgram: And we’ll try our best to answer them.
Preet Bharara: That’s it for this week’s Insider podcast. Your hosts are Preet Bharara and Anne Milgram. The executive producer is Tamara Sepper. The senior audio producer is David Tatasciore. The CAFE team is Julia Doyle, Matthew Billy, David Kurlander, Calvin Lord, and Geoff Isenman. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.