Preet Bharara: From CAFE, this is CAFE Insider. I’m Preet Bharara.
Anne Milgram: And I’m Anne Milgram.
Preet Bharara: Hi, Anne Milgram.
Anne Milgram: Good morning, Preet.
Preet Bharara: We were off last week.
Anne Milgram: We were.
Preet Bharara: We gave everyone the week off.
Anne Milgram: Well, we were here for the Mueller Diaries, when Bob Mueller made his statement.
Preet Bharara: We didn’t get a full week off.
Anne Milgram: Did you forget that? Feels like a million years ago.
Preet Bharara: You know, it feels like a million years ago, and also it feels like this morning. But it’s good to be back. Did you have a good week?
Anne Milgram: I had a great week.
Preet Bharara: I went to Norway.
Anne Milgram: Yeah. Pretty quickly.
Preet Bharara: For a day. I went to the Oslo Freedom Forum. It was an amazing event where all sorts of human rights activists, and leaders, and lawyers congregate, I think about a thousand folks, in the great city of Oslo, and talk about ways that we can make the world better. And I met a lot of folks who have endured really terrible plights in countries all over the world, so it was eye opening, enlightening.
Anne Milgram: I bet it was inspiring.
Preet Bharara: It was.
Anne Milgram: What did you talk about?
Preet Bharara: So I took the stage with Bill Browder, who was known, I think, to everyone who listens to Stay Tuned, to talk about Russian oligarchs, and about how he’s trying to pass the Magnitsky Act in more countries around the world, and how difficult that is, and how you go about doing it. And what the rule of law means in the United States, and what was going on here affects things that are going on in other countries. So that was inspiring, too. It’s always great to be with Bill.
Anne Milgram: He’s done an amazing job, and really, I think, been incredibly passionate and focused on that issue.
Preet Bharara: Yes, absolutely. So I hate, on a beautiful Monday… in New York, at least, it’s beautiful out… to have to begin again in the way that you and I have had to begin many times: with another shooting over the weekend.
Anne Milgram: Yeah, on Friday, another tragic mass shooting with 12 people killed and four people wounded at the Virginia Beach Municipal Center. And the shooter died after exchanging gunfire with the police. You know, I feel like we keep having this conversation, and the thing that upsets me so much is that I always like to think about how do we change… how do we stop bad things from happening again? And I feel, sitting here, that we have not, as a country, done what needs to be done to stop this from happening again.
Preet Bharara: We haven’t. Now, this particular incident raises something of a new issue. It’s not a new issue, but I guess it just crystallizes something that people have been talking about. And I believe it’s the case with respect to this mass shooting that the perpetrator was using a silencer.
Anne Milgram: On one of the guns.
Preet Bharara: On one of the guns. And so some gunshots were heard, and Juliette Kayyem, who’s a former college classmate of mine, and is a national security expert, has been making the point since Friday that guns kill, but gunfire, the sound of gunfire, can save other people’s lives. I mean, that’s the thing people are used to, right? All these drills that people do in schools and in offices, they’re based on the premise that you hear a shooter somewhere, and the gunfire causes you to take cover, or causes people to call the police. And if you have a system where people are, on a regular basis, using suppressors or silencers, it makes it even more potentially deadly.
Anne Milgram: That’s a great point. It’s also interesting, they were two hand guns that the shooter used. Both were legally purchased, and I think it raises this question of, how do we deal with guns in America? Particularly where, at least at this point in time, there’s no history of known mental illness, at least that’s been publicly reported, and the guns were lawfully purchased, and we have something that shouldn’t have happened. And so part of this conversation that we’re so reluctant to have in our country, but we have to start. We have to start having it, otherwise we’ll be sitting here again and having the same exact conversation, just a different location, different people who are deceased, but people being murdered by individuals with weapons.
Preet Bharara: All right, well, as you and I both know, we’ll probably be talking more about these kinds of incidents going forward. Now, as you mentioned, last Wednesday, Bob Mueller spoke, and I was a jet lagged on the way back from Oslo, Norway, and we rushed into the studio to tape essentially an emergency session, where we talked about Bob Mueller’s statement. And then a couple days later, the Attorney General of the United States, William Barr, did his own interview with CBS, with Jan Crawford. What did you make of that interview, Anne?
Anne Milgram: I thought there were a number of points in the conversation that were very interesting, and there are ways in which Barr has been completely consistent. And he goes back to, in the conversation, if you read the whole thing, or if you watch the whole thing, he goes back to this whole, “You can’t obstruct.” If the president engaged in a facially valid use of the president’s authority, and he gives the example of firing Jim Comey. The president had the authority to fire Jim Comey. If the president does that, and has, at least facially, that authority to do that, meaning on the surface, he can do that, then you don’t go beneath that to figure out whether obstruction occurred.
Anne Milgram: And he almost makes this argument that the president, and the executive branch, and even the attorney general, can never obstruct justice. It was really consistent with where he’s been generally. There were a couple of interesting points, and maybe I’m making too much of it, but there was a spot at one point, William Barr says… he’s being asked what’s the fundamental difference between you and Mueller, and essentially why didn’t Mueller make the call.
Preet Bharara: Right.
Anne Milgram: And Barr saying, “I could make the call.” And Barr, he goes through this sort of, what I think is a pretty tortured argument around what law could and could not be applied.
William Barr: Both as a matter of law, many of the instances would not amount to obstruction.
Jan Crawford: As a matter of law.
William Barr: As a matter of law. In other words, we didn’t agree with the legal analysis, a lot of the legal analysis, in the report. It did not reflect the views of the department, it was the views of a particular lawyer or lawyers. And so we applied what we thought was the right law, but then we didn’t rely on that, we also looked at all the facts, tried to determine whether the government could establish all the elements, and as to each of those episodes, we felt that the evidence was deficient.
Preet Bharara: And what’s weird about that, to begin with, “It did not reflect the views of the department, it was the views of a particular lawyer or lawyers,” that’s always what the views of the department are. The department’s made up of particular lawyers-
Anne Milgram: Men and women.
Preet Bharara: Yeah. And so their views, whether they’re in the Office of Legal Counsel, which we’ve talked about a lot, or at the top of the department, the deputy attorney general or the attorney general. That’s the view of lawyer or lawyers, so I thought that was an odd formulation.
Anne Milgram: Yeah, that was strange. And also right above that part, Barr had said, “We analyze the law and the facts, and a group of us spent a lot of time doing that.”
William Barr: Spent a lot of time doing that, and determined that both as a matter of law, many of the instances would not amount to obstruction.
Anne Milgram: It’s interesting, many.
Preet Bharara: Many.
Anne Milgram: So some did.
Preet Bharara: And he threw that out very quickly.
Anne Milgram: Yes.
Preet Bharara: After the report was finished. But on this other question, it seems like Barr may have a point, and I wonder what you think about it, and we didn’t talk about this beforehand. So Barr says more than once, “Mueller could have made a decision on whether Trump engaged in criminal activity, specifically with respect to obstruction.” Because he did make a decision on conspiracy, and said not sufficient evidence to prove conspiracy.
Preet Bharara: Now, on the issue of obstruction, as we’ve talked about ad nauseam, Bob Mueller says, “I’m not allowed to make a decision on that,” essentially, and “We’re not exonerating the president. I’m not saying he committed the crime, I’m not saying he didn’t commit the crime,” and later there was a clarification where he reiterated again, “I’m not saying but for the OLC opinion, there was a crime committed,” and Bill Barr says, “I don’t know that the law or the regulations prevented Bob Mueller from saying the president did or did not commit a crime.” That’s probably correct.
Anne Milgram: I agree with that. I agree with that, I think that’s where Mueller’s conversation about fairness comes in, in his decision that it wouldn’t be fair. But I agree with you, I don’t think the regulations prevented that. And one of the things I was thinking about when I was reflecting last week on Mueller’s statement was, there are all these truth commissions. I mean, it’s a pretty… it’s not what the special counsel was appointed to be. The special counsel was appointed as a prosecutor, but there are many commissions where you think about the 9/11 commission, you could think about the work that the Department of Justice did after the Ferguson incidents.
Anne Milgram: And so there’s plenty of precedent for actually going out and doing a review that sort of does make a call on conduct. What’s different is the criminality piece here, and Mueller’s decision that he doesn’t want to publicly tag the president, because the president can’t get his day in court. One thing, what did you make of Jan Crawford, who interviewed Barr, she did a little bit of this but in my view, not enough. Barr has been very much, “I am the head of the Department of Justice, I am the Attorney General, I make the decision, this report was given to me, I get to make the call.” And yet, there is a point where he’s pushed just a little, in my view, not enough, on why didn’t he order Mueller to make the call?
Anne Milgram: He knew in advance by probably at least three or four weeks that Mueller was not going to make the call. Was it that he saw it as an opportunity for him to fill the void? Was it that he didn’t think it was his role? What do you think?
Preet Bharara: Well you know, look, the cynical explanation could be, if he thought that Bob Mueller, had he not felt the need to be coy… I’ll use that word because I think it’s a little bit coy… on fairness principles, and I presume he believed in that fairness argument in good faith, Bob Mueller did, that if he was not going to be able to say that the president committed a crime, that Bill Barr, in the way that we think he’s been, which has been very protective of the president, would not have wanted to push him so hard to get Bob Mueller to say what it looks like is clear from the report, and the details in the report.
Preet Bharara: And that is, yeah, the president committed the crime of obstruction as a thousand of our former colleagues have written in a letter, and signed a letter to that effect. And so best case scenario, if you’re Bill Barr, and you have his view of the law and the facts, which are in good faith or not in good faith, but very protective of the president, best case scenario for Bill Barr from his perspective is that Bob Mueller says in the second part of the report what he does in the first part of the report. And says, “Insufficient evidence to state that obstruction has been committed.” Second best is that Bob Mueller stays quiet on it, and allows Bill Barr to run in and take the reins.
Preet Bharara: Worst case scenario, I think, is for Bob Mueller to have said, “The president committed a crime, but we can’t prosecute.”
Anne Milgram: And I think given the report that Mueller gave to Barr, and maybe when Mueller told Barr, “We’re not going to make a call,” at that point in time Barr did not actually know which direction it would have fallen in. But I think once you read that report, it’s clear it would have fallen, in my view, if you’d told Bob Mueller, “You need to make a call,” he would have made the call that the president committed a crime.
Preet Bharara: Yeah, I mean in some ways, Barr is maybe trying to present himself as a sort of fair minded person by saying, “Look, let the chips fall where they may, Bob Mueller could have made the decision, and I’m perplexed that he did not make a decision.” And other people are perplexed too, I think you and I are in agreement that maybe we would have done it differently, but Bob Mueller, in good faith, felt he had to bend over backwards in terms of fairness. Although, look, there are other people who have different theories, it’s a little bit of the passing of the buck.
Anne Milgram: Some people have raised with me this question of, okay, so if Mueller made a decision that he couldn’t make a call on obstruction, should he have said nothing? Should he have not put out the facts, and the law? Because what really follows in the report is a prosecution memo outlining the facts and the law. The only piece that’s missing there is the conclusory paragraph where it says, “As to the element of obstructive act, here are the facts that apply, and we believe provide sufficient evidence that a crime was committed.” And sort of going through those, and pulling the facts and the law together to say there’s sufficient evidence to charge.
Preet Bharara: So let’s just examine for a moment what would have happened. How this would have played out, had Bob Mueller done what we think was in his head, and that is, laid out all the facts as he has, and then says at the end exactly as you described it, Anne. “Therefore, we believe that the president committed the crime of obstruction.” Now what happens? Now Barr either gets that report, or learns in advance that that’s going to be the conclusion. Given Barr’s different view, wouldn’t he have had to overrule Bob Mueller?
Anne Milgram: I think he might have overruled him, using the same legal argument that he’d put forth in the memo he wrote when he was a private citizen. Saying that, we talked about it earlier, obstruction can’t be charged under these circumstances, because the president, at least on the face of it, has the authority to take these actions. I don’t think that works when you get to things like asking Don McGahn to lie, or asking K. T. McFarland to write a note into her file. So I think that there are instances of obstruction that Mueller went through that feel to me like, sure, the president has the right to ask his lawyer to do something. But to ask someone to lie seems to me like it has to be beyond the scope of an official.
Anne Milgram: Like, in my view, the constitution doesn’t give the president the right to lie, cheat and steal.
Preet Bharara: Right. But procedurally, it would have been an odd moment. And there’s some people, a scholar who I respect and used to be the head of the office of legal counsel, Jack Goldsmith under a republican president. He wrote, theorized, “One reason for Mueller’s decision not to make a traditional prosecutorial decision was that it prevented Barr from having a procedural context in which to exercise his power under the regulations to overrule Mueller’s legal analysis.” And he did that in one of our favorite places, in Lawfare. I don’t know how much that makes a difference.
Anne Milgram: So I think we probably agree, though, that if Mueller had made that call, Barr, I think would have very likely challenged that call, and then that would have had to have been reported to congress, because-
Preet Bharara: All this is getting reported anyway.
Anne Milgram: Right.
Preet Bharara: It’s all sort of out in the open anyway. So I get all that, but I’m not… it’s an interesting thing to think about.
Anne Milgram: I didn’t agree with Jack Goldsmith on that, in part because I think Mueller’s the kind of person… and we got to see him speak publicly last week… he’s the kind of person that I think he’s going to do what he thinks is right, and he’s going to take the fallout, and it is what it is. I don’t think he’s a wily political pro. He’s obviously been in government for a long time, but I don’t think he’s sitting back there thinking, “What’s the political thing to do?” I think he’s really driven by what’s the right thing to do. And people can disagree about that, and whether or not he did that.
Anne Milgram: Jack Goldsmith, as I was reading some of his analysis, and I think he’s very thoughtful. But as I was reading it, I was thinking, he really puts on top of Bob Mueller a level of sort of political strategy that I just don’t see that.
Preet Bharara: I don’t attribute it to Bob Mueller either.
Anne Milgram: Yeah.
Preet Bharara: Look, sometimes the absence of thinking about politics can still politicize the decision, and the situation, because other people can take advantage. But that’s different from saying that the person had some intent to be political, or was thinking about politics.
Anne Milgram: One question for you, Preet, I thought this was really interesting when Jan Crawford said, she talks to Barr about the criticism that he’s getting, that he’s protecting the president. And he goes into this long diatribe almost, about the fact that we live in a hyper-partisan age, and…
William Barr: Well, we live in a hyper-partisan age, where people no longer really pay attention to the substance of what’s said, but as to who says it, and what side they’re on, and what its political ramifications are. The Department of Justice is all about the law, and the facts, and the substance, and I’m going to make the decisions based on the law and the facts. And I realize that’s intention with the political climate we live in, because people are more interested in getting their way politically. So I think it just goes with the territory of being Attorney General in a hyper-partisan period of time.
Preet Bharara: Yeah, look, so he’s stating a conclusion about the state of affairs in the country, and what the landscape is, and it is overly politicized. And I think the job of Attorney General and the Justice Department have, from time to time, become politicized, because people want certain results. And they care less about the process than the result, because of their political feelings. That’s, I think, a problem in the United States, and it has been for some time. I think the job of the Attorney General, wherever possible, knowing that you’re operating in a highly politicized environment, is to do everything you can to defuse it, and to take the edge of.
Preet Bharara: And I’ll give you an example, the person who I keep thinking is doing a good job of this is Chris Wray, the current head of the FBI, who doesn’t take the bait, who doesn’t intentionally use some of these buzzwords that the president likes to use, like spying, or hoax, or collusion, when that’s not what Bob Mueller talked about. And it allows the political people, as I’ve said before, when you launder these terms through the integrity of the institution of the Justice Department, you are, I think, contributing to the politicized atmosphere. And you’re giving ammunition to political people as opposed to giving calm and deliberate thought for everyone to be able to rely on.
Anne Milgram: Yeah. I think Chris Wray’s done a good job, and has also stood up where he needs to stand up, particularly on the spying language, and pushing back on the political nature of some of the comments and conversations.
Preet Bharara: Let’s segue from the interview to this issue of treason, which is a very serious term that is in the constitution that’s been bandied about fairly casually. And Bill Barr, I guess somewhat to his credit, although not fully, which we can talk about, gets asked this question. And just to set it up, let’s talk about what the president has been saying. So we have this investigation of Russian espionage, counterintelligence investigation, and then it morphed into a special counsel investigation that also looked at obstruction. And the president says, “It exonerated me, everything in it exonerates me.” Sarah Huckabee Sanders says, “It exonerates the president,” and yet he is still engaged in a vituperative… that’s the big word for this episode.
Anne Milgram: Oh, it’s a nice word.
Preet Bharara: A vituperative onslaught against a number of people. Let’s see all the people that the president has accused of treason. And he says the word treason, he doesn’t say disloyal, he doesn’t say, “They’re undermining my presidency,” he says treason. He mentions Jim Comey, he mentions Acting FBI Director Andrew McCabe, he mentions FBI lawyer Lisa Page, and former FBI agent Peter Strzok. Now, that’s a serious term, treason, which we’ll talk about in more depth in a moment, because I think it’s important for people to keep their heads on straight. But Bill Barr gets asked about this, and says, “Well you know, is this treason…”
Anne Milgram: And Bill Barr says, “Well, I, as a lawyer, I always interpret the word treason not colloquially but legally. And you know the very specific criteria for treason, so I don’t think it’s actually implicated in the situation that we have now.” So basically, he’s saying it’s not legally treason.
Preet Bharara: “I don’t think it’s implicated in the situation that we have now,” which is not as strong as it could be. And then Jan Crawford asked again, “You don’t think that they’ve committed treason?” And Barr says… this is interesting.
Jan Crawford: You don’t think that they’ve committed treason?
William Barr: Not as a legal matter, right.
Anne Milgram: “Not as a legal matter,” no. Instead of just saying what you and I would say, no.
Preet Bharara: No. So it’s very funny. He has these views of words that have both a colloquial meaning and a specialized, legal meaning. One of them that he’s used controversially is spying, he says, “Look, I can use the word spying, because it’s a perfectly normal English word that I don’t even think is pejorative. I don’t even think it has negative connotations.” And of course, it does. And then here in another context, he’s talking about the word treason.
Anne Milgram: And he’s basically excusing the president’s use of it by saying, “Well, it’s not legally treason, but the president is talking about… this is colloquial.”
Preet Bharara: Look, if you decided tomorrow, and I say this as your dear friend, “Hey, you know what, I’m going to go cohost another podcast with some other guy,” I would accuse you of treason. I would absolutely accuse you of treason, seditious conspiracy.
Anne Milgram: Legally, or colloquially?
Preet Bharara: I would mean it legally, actually. No, that’s a joke. That’s a joke, see I’m kidding, I’m kidding with my friend Anne. But in the context of politicization, and heightened acrimony in the country, that he himself acknowledges in that same interview, where you have the guy with the biggest megaphone on Earth inciting people to feel like certain Americans have engaged in constitutionally defined treachery… It’s not cool to be saying, “Not legally, no,” and to be playing games with these words. I really don’t think it is.
Anne Milgram: It is a terrible thing. And like it or not, a lot of people listen to the president. He’s the President of the United States, his office has an incredible amount of authority, and it’s really… Saying treason, and we should talk about what it is legally defined as, too, because it is among the most serious things you can… You’re essentially accusing someone of working with an enemy of the United States government to undercut the United States of America.
Preet Bharara: Right. And when you say enemy we don’t mean the press.
Anne Milgram: No. I mean a foreign country.
Preet Bharara: We mean a foreign power.
Anne Milgram: I mean another country.
Preet Bharara: Some of the very few cases that have ever been prosecuted in the country, Nazi Germany, or the Empire of Japan. And what is the punishment, potentially, for treason?
Anne Milgram: Death.
Preet Bharara: Death. Right. Look, it’s a very serious thing. I will also say just a couple of things by way of background, then we’ll go into what treason is. It is also true that people on the left have talked about Donald Trump committing treason, and I was on a show that I enjoy, and people have different views-
Anne Milgram: Which show was that? You’re being very coy.
Preet Bharara: Real Time with Bill Maher.
Anne Milgram: Oh, yeah.
Preet Bharara: And I was on the show last August, in the introductory segment, and Bill Maher and others like to use the word treason with respect to the president, and he tried to get me to say treason, and it was not a crowd pleasing thing for me to reject that term, and I rejected it, and I didn’t use the word treason. For this reason, because we’re talking about something very serious. Now, there is a distinction between entertainment figures and even political pundits, or comedians, like Bill Barr, throwing around terms like that-
Anne Milgram: Did you just say Bill Barr is a comedian?
Preet Bharara: I’m sorry. Bill Maher. All right, just so we’re clear-
Anne Milgram: Wait.
Preet Bharara: Just so we’re… hold on.
Anne Milgram: Is that a trick?
Preet Bharara: Bill Maher is not the Attorney General of the United States.
Anne Milgram: Got it.
Preet Bharara: He is a comedian. Bill Barr is the Attorney General of the United States.
Anne Milgram: He is not a comedian.
Preet Bharara: Sometimes he’s a comedian.
Anne Milgram: Right, he’s not an intentional comedian.
Preet Bharara: He’s a comedian. But, there’s a distinction between… as I was saying before the odd Freudian slip… between a private citizen who’s trying to be provocative, and says treason, versus an elected official, including the President of the United States. And last week, Liz Cheney, republican member of congress, right?
Anne Milgram: The daughter of Dick Cheney.
Preet Bharara: The daughter of Dick Cheney, blithely just says, when she’s on one of the Sunday morning talk shows, “These people engaged,” referring to people like Jim Comey and others, “engaged in conduct which could very well be treason.” And she knows better than that. She knows what the constitutional definition is, and so I’ve seen all this battling on social media, where people say, “Well, the democrats did it, republicans…” There’s a distinction between elected officials and non-elected officials, and if you have members of congress, members of the senate, and the President of the United States, I think we would hold him to a higher standard than a comedian on cable television, then I think you have a problem.
Preet Bharara: So should we remind everyone what treason is?
Anne Milgram: Yes. Treason is part of the United States constitution, article three, section three of the constitution. “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” And it’s also important that, when you look at the definition of treason, “Enemy means a country, or an entity that has declared war, or is in a state of open war, against the United States.”
Preet Bharara: So, what country, arguably, could Jim Comey and Andy McCabe and others have been working with? None.
Anne Milgram: None. And in fact, I would not call what the president has done treason either. I think that is too much to call it that, but if you were looking at the involvement of someone with a foreign power, in a way that undercuts the safety and security of the United States, the only example in everything we’re talking about is the president, and the president’s campaign having these conversations with Russia.
Anne Milgram: Again, I don’t think it meets that legal threshold, nor do I think it’s right to talk about it that way, but there is some irony here in Donald Trump calling people like Comey and others treasonous, when they were, if anything, in their minds working very much on behalf of the United States of America. And Donald Trump, who to this day has refused to acknowledge that the Russians hacked the election. The only group of folks who, in this whole conversation have had a connection with a foreign government that is arguably detrimental to the United States government, and the people of the United States, is the president and his group.
Preet Bharara: There are other words that are bandied about, like they’re just casual. And again, it’s different when people on television say it for provocation versus the president himself. Like coup, and overthrow of the government. Those things did not happen either. You know, there’s another statute that some people keep talking about, and say, “Well, maybe these activities on the part of Jim Comey and others fall within seditious conspiracy.”
Preet Bharara: And there’s a statute that addresses also, it’s 18 US Code 2384, which also makes it clear that the mere launching of an investigation, and sending of some text messages, when it’s a duly authorized investigation that at the end of the day doesn’t even charge the president with a crime, and doesn’t find the crime of conspiracy… How on earth is that a coup or seditious conspiracy, when the statute makes very clear that you’re talking about force? You’re talking about violence.
Anne Milgram: I feel like I haven’t read the seditious conspiracy statute since, I don’t know, high school, or college, or law school. It’s not something we talk about a lot.
Preet Bharara: Have you ever been accused of it?
Anne Milgram: I have not.
Preet Bharara: That’s maybe why you haven’t read. I get accused of it from time to time…
Anne Milgram: You do?
Preet Bharara: No, I’m joking. I’m joking.
Anne Milgram: The one point about this, Preet, is that the president does this a lot. And I just want to reflect at a higher level on it, which is that he… when people disagree with him, or they don’t do things the way he wants them to do them, there’s an immediate call towards, “You’re treasonous. You’re engaged in a witch hunt, this is a coup.” Versus seeing what happens as a part of the political process, where people disagree. Even think about the president stonewalling congress on everything, it’s the, “I don’t agree with what you want, congress, I don’t think it’s fair. I don’t like what you’re doing, and so I’m not going to follow the rules and the law.”
Preet Bharara: Yeah, it’s not based on principle, except if the principle is, “What’s good for me?”
Anne Milgram: Yeah, but it’s more than words, it’s also really trying to undercut the institutions and the norms that have forever been, the president supplies information to congress, somebody disagrees with the president, okay, the president says we disagree. The president doesn’t say, “You’re treasonous.”
Anne Milgram: Preet, what do you think about this whole conversation about the declassification of sensitive national security documents and the president’s decision to give Attorney General Bill Barr authority as part of this investigation? You know, Barr is investigating the investigation into the president.
Preet Bharara: Yeah. Well, this goes back to what you were saying. If it’s being done for vindictive purposes, and retaliatory purposes, and is not based on principle, then I worry about it. Look, people can investigate things if they want to get assurances, but the insinuation on the part of the Attorney General, both in his interview with Jan Crawford and elsewhere, before there’s been a conclusion of an investigation, before we know what the facts are, I think is a kind of irresponsible slander.
Preet Bharara: Now, slander is a technical term, so I’m not accusing him of slander, but it’s a kind of, I think, allegation that is not worthy of somebody who’s the Attorney General of the United States.
Anne Milgram: You can do an investigation at the United States Department of Justice without publicly declassifying information to have it released for everyone to see it.
Preet Bharara: Yeah. I think there’s a lot of playing around with classification. Whether you’re talking about taking away security clearances from people like John Brennan, who the president doesn’t like, or overruling career officials to grant security clearances to people like his son-in-law because he likes him. And here, selective declassification of things, that’s the thing you want to worry about most. I mean, in some ways, so long as it doesn’t affect sources and methods, although I think it might, declassifying everything is maybe the most fair way to go about it, because you’re going to worry about cherry picking.
Anne Milgram: Right, I worry about cherry picking. I think clearly you would never want to endanger sources and methods, but beyond that, the thing I worry the most about is that he will pick and choose from the documents to make the case he wants to make, versus just putting it all out if he’s going to make it public. And again, I’m just not convinced that there’s a need to make it public at this point.
Preet Bharara: Yeah, I agree with that.
Anne Milgram: So Preet, one of the questions people have been raising about the declassification is that the president himself can declassify materials. And so instead of doing that, what he basically has done is given that authority to the attorney general.
Preet Bharara: Yeah, it’s better in the attorney general’s hands than in Trump’s hands, but that doesn’t mean the president has forever waived his power to declassify. So just because for now, he’s put it in Bill Barr’s hands doesn’t mean that at the end of the day, if he thinks it’s helpful to him, helpful politically, helpful to some narrative, and harmful to his political adversaries and the people who he views as his nemeses, he will absolutely do whatever he thinks is helpful to him.
Anne Milgram: I also worry a little bit about having it be one person at the Department of Justice who… Look, there are different agencies, there are homeland security agencies, there’s the Director of National Intelligence, and they all have different missions and goals. And so I sort of wondered if just giving that type of really incredible power to one person, and the attorney general said, “Well, I’ll consult with the heads of the intelligence community,” but it feels to me like there should be some process whereby it’s not just the AG putting his finger up in the air and saying, “Here’s where the wind’s blowing. Here’s what I want to do today.”
Preet Bharara: Right.
Anne Milgram: It feels too loosey-goosey to me when you’re talking about things that Bill Barr’s not… he’s not the lead of the intelligence community. And the idea of sort of doing this without being closely tied to the intelligence community worries me.
Preet Bharara: Clearly there will still have to be some inter-agency process, but it is notable that Donald Trump decided to vest the power of declassification in this instance with the attorney general, not with the DNI, Dan Coates, who has at least on a couple of occasions looked like he’s not quite on the same page as Donald Trump. And Bill Barr has always seemed to be on the same page.
Anne Milgram: I think Bill Barr is the favorite child right now.
Preet Bharara: Speaking of lawyers who work on behalf the president, the president’s lawyer, Emmett Flood, who you heard about but you haven’t seen much from, because he doesn’t go on television like Rudy Giuliani, he has decided to step down. Some people are making a big deal of this, my view is, I have no idea if it’s because he’s sick and tired of it. I have no idea if it’s because he thinks that it’s terrible for his reputation to continue, the Mueller Report is over. I know some people thought that he was brought on because he had impeachment experience representing another president, democratic president, Bill Clinton. As talk continues to percolate about impeachment, you would think that he’s a person who would stay on. I don’t make anything of it, really.
Anne Milgram: I don’t make too much of it either. As every day goes on, it’s very possible that the president thinks it’s less likely that there will be impeachment proceedings brought against him. I’m not sure that’s right, but it’s also the report is out, we’re a month after the report, Mueller has spoken, he’s resigned, I’m mean there’s a way in which, we don’t know, but maybe Flood was brought on to deal with Mueller. One thing we can say about Flood, I think, is that the president never spoke to Bob Mueller, and there were a lot of questions that Mueller had on obstruction that never got answered, either in writing or in person, and so if that was Flood’s job, Flood’s job is over. And again, I don’t want to speculate, because we don’t know exactly what he was brought on for, but-
Preet Bharara: It’s a grueling job working for any president, and working for this president is probably the most grueling of all. And people have personal lives, and they have other things they want to get back to.
Anne Milgram: Can I read the president’s tweet?
Preet Bharara: Yeah.
Anne Milgram: Because as in so many things in America, the president informed us that Emmett Flood was leaving by tweet. @RealDonaldTrump broke the news, “Emmett Flood, who came to the White House to help me with the Mueller Report, will be leaving service on June 14th,” also Flag Day, by the way. “He has done an…” That was me, not Donald Trump. “He has done an outstanding job,” capitals, “NO COLLUSION, NO OBSTRUCTION, CASE CLOSED.”
Preet Bharara: Case closed.
Anne Milgram: Case closed. I want to talk about that in a second. “Emmett is my friend, and I thank him for the great job he has done.” Did you ever, in your years as the United States Attorney, or an assistant United States attorney, say case closed?
Preet Bharara: No.
Anne Milgram: Me neither.
Preet Bharara: Case closed!
Anne Milgram: I think it’s a great…
Preet Bharara: I mean in summation it would sound kind of foolish.
Anne Milgram: Case closed.
Preet Bharara: Case closed.
Anne Milgram: Yeah. Never said it.
Preet Bharara: Right. There’s another big legal issue that’s brewing.
Anne Milgram: More?
Preet Bharara: And that is the issue of gerrymandering. There’s a case that’s before the Supreme Court on an expedited basis, that has its origins in the Southern District of New York. And it’s the battle, and fight, and argument over whether or not the census, the next one taking place very soon, 2020, whether the census, in its questionnaire, should have added to it a question about citizenship. And that has made a lot of people very upset and angry, because there are very good reasons to believe that by adding a citizenship question, you’re actually going to depress participation in the census.
Preet Bharara: Because there are lots of folks who are concerned, especially in the current climate about immigration, and about people being documented or undocumented, there are a lot of issues about counting. And the purpose of the census is to count everyone, not just citizens, but everyone. That’s how apportionment gets done, and that’s how congressional districts get set up, and from the census, there can follow the political act of gerrymandering. And so it’s a real question, what is the intent behind wanting to add a citizenship question? And the Department of Justice has argued that it has a facially correct reason for adding a citizenship question, and that is to be able to enforce the Voting Rights Act, which is of, I think, dubious merit, that argument.
Preet Bharara: But they have an argument they’ve made with a straight face about that. Jesse Furman, a judge of the Southern District of New York, very, very smart guy, used to work for me in the appeals section at the SDNY, and is a friend of mine, so I should state that. He ruled in a very lengthy opinion a few months ago that the citizenship question being added was a violation of the Administrative Procedures Act, and it was essentially done in an arbitrary and capricious way. And so he enjoined the addition of that question.
Anne Milgram: Yes. So to go back one second on gerrymandering, I think it’s worth just pointing out, just in a little more detail. It’s the drawing of the political boundaries, and that it’s been done by republicans and democrats for many, many years, and the Supreme Court has frequently struck down, particularly under Justice O’Connor, has struck down efforts to gerrymander. And the question is always, you know, party wins power, and then they get the opportunity to redraw the congressional districts, and the party in power always wants to draw it in a way that gives them more seats, which equals more power in the United States Congress, and leads to laws that that party in power wants to get passed, more likely to get passed, and so on.
Anne Milgram: And so, this has been going on for a very long time, and it does make a difference. Just to put it really bluntly, the Census Bureau opposes… and it’s worth noting that the Census-
Preet Bharara: Strongly.
Anne Milgram: Strongly opposes this question about citizenship being added. They estimate that at least 6.5 million people may not end up participating in the count of the number of Americans. That’s an important thing. And it would likely impact the democrats in a negative way. The idea being-
Preet Bharara: So that’s the nub of the question here, because in some ways, that has been speculative, and there’s been an argument made by people who are on the democratic side, but the reason we’re talking about it today is there was a revelation in the last week, and new evidence came forward after the oral argument happened in the Supreme Court, and obviously after Judge Furman entered his decision in the underlying case.
Anne Milgram: Not to belabor this, but there were two arguments that went to Judge Furman. One was the Administrative Procedure Act, which is did the Department of Commerce follow the process and procedures they need to in order to change the rules, because the citizenship question hasn’t been part of the census recently. And the second was a constitutional claim under the fifth amendment due process, basically arguing discrimination. That this is being done to harm people.
Anne Milgram: Judge Furman doesn’t reach the discrimination, he does not find a constitutional-
Preet Bharara: The fifth amendment.
Anne Milgram: The fifth amendment violation, because there just wasn’t sufficient evidence. At the time, he stayed a deposition of Wilbur Ross, who’s the head of the Department of Commerce, with the idea being, “It doesn’t matter, it violates the APA, I’m going to stay this.”
Preet Bharara: Yeah, which judges sometimes do, because they need not reach every question. And so now-
Anne Milgram: The big reveal.
Preet Bharara: The big reveal. After that case was decided by Judge Furman, after oral argument, even, has happened in the Supreme Court, we have evidence that came to light in a fairly bizarre way. There’s a gentlemen who is referred to in some quarters as a Gerrymandering Guru, by the name of… I don’t know if there is such a thing. It’s kind of offensive to gurus, which originated in India, I believe.
Anne Milgram: In defense of gurus-
Preet Bharara: In defense of gurus.
Anne Milgram: Across the world.
Preet Bharara: Gerrymandering Guru Thomas Hofeller, who is somebody who it appears had a big role in influencing the Trump administration to add the citizenship question. So why is that a big deal? Well, it’s a big deal because it turns out that emails and other documents have come to light that show that Hofeller did a study in 2015, and his study concluded that adding a citizenship question, “Would clearly be a disadvantage to the democrats, and advantageous to republicans and non-Hispanic whites.” And he did that study in the state of Texas.
Anne Milgram: He also allegedly ghostwrote a letter from the Department of Justice to the Commerce Department, pushing to include this citizenship question under, as you describe, the guise of enforcing the Voting Rights Act. And it was previously believed that the Assistant Attorney General for Civil Rights, John Gore, had written this letter, but they’ve now discovered that he allegedly ghostwrote the letter.
Preet Bharara: And how is this coming to light?
Anne Milgram: It’s a fascinating story. Mr. Hofeller passed away, and his daughter, in cleaning out his house, ends up reaching out to get assistance from folks, and she finds this hard drive that has all this material on it. And as she’s talking, she says something to the effect of, “Well, somebody who’s interested in gerrymandering, or legislative districts, would be really interested to see this.” And eventually it comes to light, and she shares those documents, and-
Preet Bharara: With an advocacy group.
Anne Milgram: With an advocacy group.
Preet Bharara: Common Cause.
Anne Milgram: Yes. And she had reached out to Common Cause, it looks like for just assistance in dealing with her father’s estate, and then she ends up in a situation where she’s got this material that she turns over.
Preet Bharara: And so it’s important. Unclear if it will affect the proceedings, because they’re very far advanced at this point, but it does, in many ways, if it’s all true and it’s all authenticated, gives the lie to the facial-
Anne Milgram: Validity.
Preet Bharara: Validity of what the department was arguing. They’re saying, “No, no, no, this is fine, this is cool, this is kosher, because it’s all about enforcing the Voting Rights Act,” when you have a document that makes clear that what was really going on, what the real intent was, to advantage a particular political party, in this case the republicans.
Anne Milgram: It’s a smoking gun.
Preet Bharara: And to disenfranchise people of color.
Anne Milgram: Yes, and it’s a smoking gun because it was pretty clear when you read through the papers that that’s what was happening, that it was all pre-textual to say it was a farce. To say this was about the Voting Rights Act. And that there were other ways, and a number of folks pointed out, there were other ways for the Department of Commerce to get the information they wanted, short of putting a citizenship question on the census, which is really important. So it wasn’t like this was the only way for them to do it.
Anne Milgram: One other thing I find really unusual about this is that Judge Furman is a Federal District Judge in New York City, in the southern district. As a rule, when a case gets decided, the appeal is taken to the circuit court, which is the next level up, and that would be the second circuit in New York. The second circuit would have a panel of three judges that would hear it, make a decision, and then the party that lost, either the plaintiff or the defendant, would have the opportunity to appeal to the Supreme Court. Here…
Preet Bharara: We skipped that. We skipped the middle.
Anne Milgram: Yes. They skipped the middle one, they skipped the second circuit, which is really unusual. It’s not that there aren’t instances where it happens, and obviously there’s some real timeliness questions here about this, but they skipped the middle ground. So when you talk about it moving quickly, you’re right in part because it went directly to the Supreme Court.
Preet Bharara: Very quickly. And look, and the people who are reading the tea leaves, based on the oral argument, it looks very clear that the conservative members of the court have bought into this stated reason for enforcement of the Voting Rights Act. Justice Kavanaugh, Justice Roberts, Justice Alito, and others. From their questioning, it’s not just positive, and you can’t necessarily predict based on the questioning, but seemed very sympathetic to this idea of including a citizenship question. And I haven’t thought deeply enough yet about how this information will get in front of the court, meaning the Supreme Court.
Preet Bharara: It will get in front of Judge Furman, in the district court, because he still retains the power to deal with witnesses, and there’s a hearing he’s going to have on this new revelatory hard drive data this week.
Anne Milgram: And the plaintiffs are 18 states and the District of Columbia, and some non-profit organizations. They sent a letter to Judge Furman last week, basically asking him to discipline the witnesses for being untruthful, for basically coming in and saying, “This is all about the Voting Rights Act, and this is why we need it,” and now there’s this evidence, this information, that shows that that wasn’t accurate.
Preet Bharara: So it’s something that’s very important. It’s very important to how democracy will unfold in the coming years, beyond what happens with the census next year. So it’s something to keep an eye on, and Anne and I will keep talking about it.
Anne Milgram: So we have a question, Preet, from Brian, via email. Preet and Anne, what are your thoughts on Facebook and Twitter’s position on the manipulated video of Nancy Pelosi? Are there legal remedies that she could pursue in federal or state courts? Are libel or slander laws applicable here? Are there first amendment friendly regulations, such as more prominent labeling, that could be applied? Love the show.
Preet Bharara: So that’s a good question, and I don’t think, Anne, I don’t know if you agree, there’s really no libel or slander issue here. She’s a public figure, she’s an important public figure, and people have a lot of leeway to doctor videos, even if you don’t like it, to make fun of folks. I mean look, if you watch any late night television program, basically no night goes by where a late night talk show host does not show some doctored video of Donald Trump doing or saying something stupid, sped up, slowed down to make him sound drunk, those kinds of things happen all the time.
Preet Bharara: This, to me, is more of a question of the gatekeeping function and role that enormous platforms like Facebook and Twitter have.
Anne Milgram: There’s a-
Preet Bharara: And they have to be true to their own terms and conditions.
Anne Milgram: Yeah, and there’s a difference between a late night talk show host who’s giving the news with comedy, who’s sort of obviously giving a false version, or a doctored version, versus how it was being offered on Twitter and Facebook, which was, “Nancy Pelosi has a drinking problem, there’s something wrong with her.” My view is that legally, I don’t think she has a strong argument on this, but the right thing to do is for Twitter and Facebook to take it down. And not be part of… and we’ve had this conversation with the Russian bots… not be part of sort of being involved in a political crusade to provide false information to the American public.
Anne Milgram: And I think there’s a real conversation to be had about how should they be doing this, and how are Twitter and Facebook going to be able to figure out what are the lines, what is the process they should follow, and what are the rules they should follow. But the bottom line is that it strikes me as, this one is… there’s some hard calls, and there are easy calls, this one strikes me as pretty easy.
Preet Bharara: Yeah. And I’ve got two final points before we go. The other thing that should not happen is that the sitting President of the United States of American should not be retweeting that. I’ve seen people do an analysis, and it shows that that doctored video was seen by millions of people, and largely was seen by so many folks because the sitting president, with 60-something million Twitter followers, tweeted it. Did he break a law in doing that, I don’t know, but he shouldn’t be doing that. And then second, and I hate to end on a chilling note, but something that we haven’t really talked about, is this looming social/legal/political problem of the Deep Fake.
Preet Bharara: For those of you who are not initiated, that’s the issue of technology getting so advanced that there will come a time when not just folks in Hollywood can manipulate dinosaurs, or people, and cause you to think that they’re saying things that they’re not saying. But that average folks, using software that’s readily available, will be able to make videos, false, fake videos, of prominent people, including politicians, that will be virtually indistinguishable from reality.
Anne Milgram: And just to push that a point further, it’s not just that they’ll be able to do that with politicians. They’ll be able to scan people’s voices and make fake phone calls pretending to be you, or me, or somebody else, and using that for scams and other problems. So we are dangerously close to… this is a very depressing way to end… but we’re-
Preet Bharara: Although, look, there may be some upside. If you can get a Deep Fake of Preet and Anne, maybe we could take more weeks off. We could take the whole summer off, don’t you think?
Anne Milgram: An AI, neural net version. Yes.
Preet Bharara: Yes.
Anne Milgram: Yes.
Preet Bharara: So look, there’s a silver lining.
Anne Milgram: And it could be better versions of ourselves.
Preet Bharara: God, I hope a better version of me. I kind of need that. On that note…
Anne Milgram: Yes.
Preet Bharara: Bidding you a fond farewell as the real Preet Bharara and-
Anne Milgram: And the real Anne Milgram.
Preet Bharara: Send us more questions, we’ll try to answer them.
Anne Milgram: Definitely. Bye.
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.