CAFE Insider Transcript 09/03: Ethics: Comey, McCabe, Barr

CAFE Insider Transcript 09/03: Ethics: Comey, McCabe, Barr


Preet Bharara:              Hey Insiders, we’re taking the Stay Tuned podcast on the road this fall and I’m excited to announce a new stop. On November 5th, we’ll be in Minneapolis in the great state of Minnesota. Joining me is former marathoner, city councilman, civil rights attorney, son of professional ballet dancers and now still in his 30s, mayor of the city, Jacob Frye. You’re not going to want to miss this rising star. In addition to Minneapolis, I’ll be in Atlanta with Sally Yates, in Denver with Shannon Watts and in Detroit with Attorney General, Dana Nessel. To get tickets and details of all these upcoming live shows, head to, that’s

Preet Bharara:              From Cafe, welcome to Cafe Insider, I’m Preet Bharara.

Anne Milgram:             And I’m Anne Milgram.

Preet Bharara:              Anne, it’s good to have you back in the studio.

Anne Milgram:             Yeah, it’s good to be back in person.

Preet Bharara:              Back to school, sad, and a little bit harder into the groove of things. Lots of things going on, millions of things we need to talk about. One thing that is continuing to transpire as we sit is Hurricane Dorian, which is basically moving very slowly off the coast, unclear what is going to happen there. There’s a still a lot of danger but it seems like some parts of the U.S. will be spared. Can I tell you my one observation about it?

Anne Milgram:             Yes.

Preet Bharara:              Did you see photographs and video, an interview of the guys who follow the hurricane in the military airplane?

Anne Milgram:             I didn’t see that.

Preet Bharara:              And they’re incredibly brave and great. They literally fly through the hurricane in the 180 mile per hour winds. Hurricane hunters, I think they’re called. And they fly into the eye and take these beautiful pictures and then do measurement so that they can more accurately predict where the hurricane is going to go. I thought to myself, why can’t those guys be the pilots on all my flights?

Anne Milgram:             Do you want to fly into a hurricane?

Preet Bharara:              Can you imagine? Well, I imagine there’s some turbulence that they have to handle-

Anne Milgram:             Right, you just think they’re great pilots.

Preet Bharara:              And I’m thinking, dude who can handle Hurricane Dorian-

Anne Milgram:             Yeah.

Preet Bharara:              Can like land at LaGuardia pretty easily.

Anne Milgram:             Definitely.

Preet Bharara:              Right?

Anne Milgram:             I’ll tell you I saw the video of Chef Jose Andres, who’s down in the Bahamas to coordinate the relief efforts, both shelter and food. And he’s, I don’t know, 90 or 100 miles away and the storm, it looks like the most intense storm you could possibly imagine, he’s not even in the eye of the hurricane.

Preet Bharara:              Well, he’s a great man doing a lot of great stuff.

Anne Milgram:             Absolutely.

Preet Bharara:              Great stuff.

Anne Milgram:             And all good thoughts go out to everybody who’s along the path of the hurricane.

Preet Bharara:              I don’t know how many times we have begun a show, it’s becoming a routine now, mentioning a tragic mass shooting over the weekend. There was another this past weekend.

Anne Milgram:             I mean, I feel like if we looked at our shows the number we started, I don’t know what the number is, but even one is too many. And I think we’re starting to have a conversation in the country. I think the conversation is starting to change, I don’t know if you feel this or if I’m in a bubble on it. I feel like the conversation is starting to change and it’s more why are we letting a small minority of people in our country essentially allow a lack of gun restrictions and allow people to kill our kids. And I do think this sort of public line and sentiment on this is moving. Frankly, I don’t think it’s moving quickly enough but I think that there’s a conversation that’s changing.

Preet Bharara:              Well, I hope so.

Anne Milgram:             And I would point out one thing, I mean, Asha Rangappa, who does CNN with us, she’s a teacher at Yale, she did a pretty good thread yesterday on Twitter and she basically goes through the need for universal background checks. But she also talks about, I think this is really important for people to understand how complicated it is that a lot people don’t currently buy guns through federally licensed firearms dealers. A lot of people buy guns gun to gun, person to person. That the states have different rules in this space, some of them require vetting, a very small number of them require vetting before a firearm is sold from person to person. Some don’t do a good job of reporting to the federal government when people have things like mental illness or other things that would disqualify them from buying a firearm.

Anne Milgram:             One of the things that Asha started to think about and I think this is a really important piece of the conversation, so I’ll just throw this out there, is remember the Highway Traffic Safety Act, where basically the drinking age was 18 and there was a whole conversation about, there’s research that shows we save lives if we move the drinking age to 21.

Preet Bharara:              And then everyone did.

Anne Milgram:             And the states didn’t want to do it because it’s state run just like a lot of the firearms restrictions are. But what the federal government basically said is fine, you lose money for your federal highways unless you do it. And so all of a sudden all the states did it. And universally we’ve had a drinking age of 21. So I think to her point and I think it’s an important point, is that, it’s a very complex system as it currently exists. It’s like swiss cheese, but it’s not without precedent that there are ways to make it a lot better and a lot more coherent and it’s really to me right now it’s just a question of political will.

Preet Bharara:              Yeah, no, I think that’s absolutely correct. So at long last, a big Inspector General report released last week on the conduct of the former F.B.I. director, James B. Comey and we have a lot to talk about with respect to that because like every other document that comes out, whether it’s an IG report or a newspaper article, or the Mueller report, people tend to use it for their own purposes. Don’t necessarily focus rigorously on what it means and what it says and what it doesn’t say. So a few top line things to mention right off the bat and then we’ll go into some details, is one, the Inspector General, Michael Horowitz, did not find that Jim Comey passed any classified information to the press, none. As far as I could tell, nothing in the memos that Jim Comey wrote and obviously this report was about seven “memos” and some of them were not even memos they were just emails. That Jim Comey wrote contemporaneously with meeting the President of the United States because he thought the President of the United States was acting inappropriately to put it mildly. And with respect to his treatment of those memos, there was an investigation that was done.

Preet Bharara:              That’s point number one. The Inspector General’s exhaustive report found that Jim Comey did not pass along classified information to the press, none, which as far I can tell, nothing in the memos is in dispute by any reasonable person, there was no finding that Jim Comey was dishonest or misled and we’ll get to it later this issue about whether or not Andy McCabe, the former deputy director of the F.B.I., whether or not he will be changed with making a false statement. No suggestion here that a false statement was made or that lies were told. No suggestion anywhere that it was wrong to write these memos, to take contemporaneous notes of interactions with the President. There’s other things that are in dispute, but those bottom line things I think are important to state at the outset.

Anne Milgram:             Yeah, it’s important to state that, it’s also important to just note that the intentional leaking of classified information which this isn’t is actually a crime. And so it’s really important that the Inspector General and the Inspector General report was sent to the Department of Justice which declined any prosecution. Finding that there was absolutely no intent whatsoever that Comey intended to share classified materials with anyone. And we should talk about sort of how this unfolded because it’s quite unusual. It’s a quite unusual set of circumstances. But it’s really important to note that there’s just no evidence of any potential intent to leak classified information.

Preet Bharara:              Yeah, one of things that’s clear, if you haven’t had time to read the IG report and you can disagree with Jim Comey and by the way, should also state at the outset, the Inspector General used fairly strong language to criticize Jim Comey’s handling of this information even though it said there was no intent to distribute classified information, was very strong about how inappropriate it was to violate certain policies and procedures. But there’s seven memos that he wrote, he didn’t disclose them all, he took great care on his own as someone who as the F.B.I. director had original classification authority to redact portions of the things he thought might be classified.

Preet Bharara:              So he himself invinced an interest, a good faith interest, in making sure that things that could conceivably be in his mind classified, were redacted from the document or not disclosed at all. And as you pointed out, the thing that’s in question and people go back and forth and I think they’re not fully honest about it when they’re attacking Jim Comey on television and there’s plenty of things to criticize him for, when they say there was classified information in one of the memos. At the time that Jim Comey created the document, there was one memo in which he recounts a conversation with the President, and with the President incidental to the conversation they were having, talks about the importance of calling back leaders of countries quickly and there was a mention of several countries. And I think after Jim Comey left, he made the original determination that was not classified, as is his right, and then after Jim Comey was fired and they went back and looked, the F.B.I. which is its right, made the determination that some of those words and ultimately it was only one word-

Anne Milgram:             Right, one name of one country.

Preet Bharara:              …one country was classified. To make the argument like some people have done on television to do and the President has done, to say that this is the leaking of classified information. At the same time by the way, that it appears the President himself tweeted out a picture of a launch site from Iran-

Anne Milgram:             Yes, we should talk about separately.

Preet Bharara:              And every expert says-

Anne Milgram:             Must be classified.

Preet Bharara:              Must be classified and does immense damage. This idea that he intentionally leaked classified information is just wrong in every respect.

Anne Milgram:             Yes, to go back just for one minute to the conversation you’re referencing between Trump and Comey, it actually related to Flynn and Flynn taking too long to call back a world leader. And so Trump then starts talking about, well, he gives examples of these three countries, two of which apparently I think he thinks you should call back quickly and one of which it appears that he thinks, who cares, you don’t have to call them back.

Preet Bharara:              Right, my guess is, the call back quickly, Russia.

Anne Milgram:             Yeah, yeah.

Preet Bharara:              And the who cares, it could be, I don’t know, it could be the U.K., it could also be the Netherlands.

Anne Milgram:             Exactly.

Preet Bharara:              Unless Greenland is involved.

Anne Milgram:             Yes, Norway, Sweden, there’s so many that are potentially on that list. But basically it was actually a sensitivity to the State Department that we don’t the United States having information out where the President is saying something ill about another country. It doesn’t help our diplomatic efforts and so it was classified at a low level. So it’s important just to understand that. But to go back a step and just sort of play it out, to your point Comey is in the middle of these interactions with the President. And by the way, I’m going to be extremely critical in a minute of him when we come to the leak conversation and the fact that he leaked information to the press. Because I think I have to put that in a separate bucket from the rest of the conversation.

Anne Milgram:             So Comey has these conversations and meetings with the President and we have to remember and I think one of the faults I would give to IG report a little bit is that, this is an extraordinary time and there is no playbook for this. Comey has these conversations, he does these seven memos, he himself makes the determination that memos one and three are classified. Because as you said, he’s the director of the F.B.I., he has classification authority. He’s able to say I think they’re classified things. He gives copies of all seven memos to his chief of staff. Then he takes-

Preet Bharara:              To be retained in the F.B.I.

Anne Milgram:             Right, and I would argue and this is something you and I should talk about in a second. But I would argue that that might have not been the right call to just give them to the chief of staff. Let’s talk about that in one minute. But happens is that when he leaves the F.B.I., he does not take memos one and three which he believes are classified because he has classified them. And that’s a really important fact. So he basically is taking what he believes is unclassified material, two, four, six, and seven, those memos he takes home. He then shares some of those memos with his lawyers, he’s got three lawyers who are the sort of dream team.

Preet Bharara:              It’s like people I know well [crosstalk 00:12:01]

Anne Milgram:             Exactly.

Preet Bharara:              David Kelly, Patrick Fitzgerald among others.

Anne Milgram:             Yup, and Dan Richman who teaches at Columbia, who’s the one who leaked-

Preet Bharara:              We’re going to get to him in a moment.

Anne Milgram:             Yes, exactly. So he shares with his lawyers and then directs Dan Richman, his lawyer who’s a professor at Columbia to share the contents, not the actual memo four but the contents of what’s included in memo four with a media outlet.

Preet Bharara:              I think a particular New York Times reporter.

Anne Milgram:             Yes, and that’s what gets to this sort of conversation about the leaks. But it is important to your point that at the time Comey took the memos and shared the memos initially there was no classification. The F.B.I. then goes back and does what they often do, and they classify it. They then alert him that it’s been classified but at the time of these actions, it’s important to know … it’s very clear that Comey didn’t believe that any of it was classified. And again, one word ends up being classified and that was never shared with the media.

Preet Bharara:              Later.

Anne Milgram:             Exactly, later. Can we go back to this question, what Comey should have done upfront with memos? Because nobody really talks about this but I think-

Preet Bharara:              Well, some people have said that there’s a process by which you put memos and reports of interviews into the system, it’s called a 302, I’ve read thousands of them in my day. And then a F.B.I. agent has written thousands or tens of thousands of them. This was a peculiar circumstance by the way.

Anne Milgram:             Yeah.

Preet Bharara:              And Jim Comey is not a line special agent who’s interviewing a witness.

Anne Milgram:             Nor do you want him to be a witness in the cases, the director of the F.B.I.

Preet Bharara:              It’s extraordinary thing for which there is not really a playbook. In the same way that I had interactions with the sitting president, actually my interactions were when he was president-elect. And then tried to have interaction with me when he was a sitting president and I refused the call. But there’s not a playbook for that, it’s an odd and weird thing.

Anne Milgram:             And you essentially had your chief of staff in the room when you called back or-

Preet Bharara:              [crosstalk 00:13:52] What’s lost in all of this and we’ll get to the critical part in a moment, is what is the thing about which Jim Comey was preparing memos? It wasn’t the sources and methods, it wasn’t about intelligence assets somewhere else, it wasn’t something that was going to compromise some inquiry into foreign intelligence. It was about the leader of the country engaging in what he thought was, either was or was bordering on obstruction. And going back to what I said at the beginning, you need to write that down. There have been these other reports that in different contexts, Rod Rosenstein, I still believe this to be true although he denies it, thought about in the aftermath of Jim Comey being fired, Rod Rosenstein jokingly or not and I believe not jokingly, suggested wearing a wire and going to talk to the President. And all these that happened, you can’t divorce them from the time, in the week or two weeks after Jim Comey was fired, lots of regular, sane people including leaders in the congress and others, and myself included as a private citizen thought that democracy was really at risk.

Preet Bharara:              That you had an out of control unhinged president who was prepared to do any and all things. So you can fault Comey for the way he did it, but I do not actually fault him for having a concern about a renegade president, who was violating all these principals of the rule of law. And looked like he was not just in the past obstructing justice but could as Jim Comey was sitting there, having just been fired, be obstructing right and left. Lots of people thought and in the report that Mueller wrote, there’s a very, very heavy conclusion in my mind, that the firing of Jim Comey itself was part of obstructive conduct. So that can’t be lost in all of that.

Anne Milgram:             Right, I agree very strongly that and in memorializing all the conversations. Because it’s really important, this is what F.B.I. agents do is that they memorialize information as it happens or as it’s ongoing, and then it’s a recollection of essentially the event as quickly and close in time as possible and that’s when your memory is the best. And so it’s really important that did it. I think in my mind one of the questions I’m sort of thinking through and I don’t suggest I have the right answer here but these memos that he did were both about somebody who is the President of the United States who happens to be … there’s an investigation going on at that moment in time. So he is the subject at least of an investigation.

Preet Bharara:              He, the President.

Anne Milgram:             He, the President and so you’re having a conversation with somebody who’s not a target or a potential subject of an investigation, you’re actually having misconduct and the obstruction goes to, the potential obstruction goes to the existence of this ongoing investigation. So it is part and parcel of an ongoing criminal matter. It’s also separately for Comey, he’s the leader of the F.B.I., he’s being put in a terrible position and he’s got to write it down his version of events, memorialize it, it’s almost like his insurance policy, which is like, hey, this happened and I’m going to make sure that there’s a contemporaneous document that shows and that I had this conversation with my chief of staff right away.

Anne Milgram:             These are the kinds of things you and I would use to judge witness credibility all the time in cases as like, did you tell someone else? Did you write it down? It really bolsters the case.So he’s got these two separate things going on and he gives a copy to his chief of staff, he says he doesn’t give a copy to the investigators because he doesn’t want to taint them. And it makes sense on some level.

Preet Bharara:              It’s odd.

Anne Milgram:             It’s really odd, he’s the head of the F.B.I., he doesn’t want to taint them. But at the same time, they’re investigating all the Russia connections and in my view, they actually should have known. But I don’t necessarily think he should have done a 302 either. So I struggle a little with like, what should the playbook be?

Preet Bharara:              It’s a very smart point that you made, which is in his mind, I don’t know if it’s so much that he was worried that it would taint them, that’s part of it but also in part it seems to me from recollecting from what he said about it, that he was worried in part that it would have some prohibited affect. I mean essentially for investigators to know that the President wanted a particular result or wanted people not to be looking at things, might affect their conduct. And he didn’t want them to be aware that the President had [crosstalk 00:18:12]

Anne Milgram:             In some ways he’s trying to buffer them. He’s trying to protect them in some ways, yeah.

Preet Bharara:              It’s like the same problem in 2016, look there’s a lot of people who have faulted Jim Comey and I should state again, for people who don’t know, I admire him, like him, think he’s an honest person, used to work for him when he was U.S. Attorney and I was a line assistant. But yes, I think he made mistakes. But you’re presented with these crazy situations like a president kicking out the attorney General Jeff Sessions from the room and then when you’re alone with the F.B.I. director, you basically say, “Hey, can you lay off Michael Flynn? He’s my political ally. And my former national security advisor.” It’s crazy stuff.

Preet Bharara:              And so all of this has to be looked at in that context. Now, if we can now talk about what the IG report says that’s negative, it was a weird way of going about this. I’ll never forget being in the actual Senate hearing room in the summer of 2017 when Jim Comey finally gets to come and testify. And there’s an exchange he has with a member of the Senate panel, where he’s asked about this New York Times article. Comey again and once again, whatever you might say, he clearly answered the question and said … I don’t have the testimony in front of me, I didn’t review it for this. But I’m sitting there and he says, you can hear a pin drop, that he provided information to a friend of his who’s a lawyer with the instruction to provide it to a member of the press. Which was kind of jaw dropping right there. The funny thing about that, some people thought they knew who it was and they were wrong and he says without naming him, he says it’s a professor at Columbia Law School. And I knew immediately it must be Dan Richman, who also-

Anne Milgram:             Yeah, me too.

Preet Bharara:              … I know and is a nice guy, an honorable guy, and a smart guy.

Anne Milgram:             Former Southern District.

Preet Bharara:              Former Southern district as they all seem to be.

Anne Milgram:             Yup.

Preet Bharara:              And a long time friend of Jim Comey’s. I look at my Twitter feed while the hearing is going on, in that remarkable situation the funniest tweet that I read like 10 or 20 minutes after Jim Comey makes this reference to his friend who leaked information to the press was the Columbia Law School, my alma mater, the Columbia Law School twitter account, sent out a tweet saying, “Our server is down.”

Anne Milgram:             They were just incoming.

Preet Bharara:              There were so many people going apparently on the faculty website-

Anne Milgram:             To look at who-

Preet Bharara:              … to figure out who the hell the person was. That it actually overloaded the Columbia Law School server. The thing about it that’s odd to me, and I think some people can find at least some fault with and this is a question about whether or not it was whistle blowing, he wasn’t so forthright about it. So he was out of office, I think his intentions were good. He in good faith wanted to make sure that the right thing was done, he in his own words and his own testimony said, “I was looking for there to be the prompting of an appointment of a special counsel.” But he doesn’t go out and say all this stuff. He didn’t wait until the hearing and say, “Ladies and gentlemen of the Senate, I believe that the President of the United States tried to obstruct doing these things.” And if you thought it was appropriate to get out then you might as well attach your name to it.

Preet Bharara:              And doing the bank shot of wanting the information to come out but at the same time not wanting to be known as the source of the information, that’s the thing that makes a lot people and the inspector general’s office, I think appropriately queasy and maybe some members of the public.

Anne Milgram:             It makes me queasy. There’s something missing from the IG report which is the context of the situation and how complex and difficult. You and I can sit here and say should Comey have shared the memos with someone other than his chief of staff? And we don’t even have an agreement. I mean, this is a very complex moment in time and there’s a lot of equities to be weighed and things to consider. I think not acknowledging that in many ways to me diminishes the IG report. Because it’s easy just to say this is a technical violation, this is a technical violation, this is a technical violation. But you have to understand that this really was an unprecedented historical moment. Now that being said, I’ve been in public life as a state, local and federal prosecutor more than a decade, I’ve never once leaked anything.

Preet Bharara:              Yeah, me neither.

Anne Milgram:             And I can’t say I’ve had the President of the United States fire me, you can.

Preet Bharara:              But even in that context, I mean, totally different, not anywhere resembling what happened later to Jim Comey, but I felt that I had some story to tell about these phone conversations with the President. And you know what I did, I’m not comparing myself favorably, I’m not patting myself on the back but then again, totally different context, but I guess I could have talked to press and indirectly through someone told them, well the President had been calling me and here’s the series of events that lead to my being asked to resign and why I didn’t. I did an on the record interview with two reporters for the New York Times and I fully laid out, here’s what happened, here’s when the President called me. Here’s what he said, here’s what we talked about, nothing classified in that whatsoever. But it’s hard to second guess other people who are living through an extraordinary moment.

Anne Milgram:             But having been a prosecutor for a very long period of time and believing that leaks, they’re deeply unfair and not the right way to proceed in my view, and remember there is one important distinction with the Comey piece which there was an ongoing investigation. And so there was a connection to an ongoing investigation. When you are fired it may have been connected, it may not have been, we don’t know. But it really just sort of, there was nothing you were going to say or do that was going to be related at all to an existing investigation. Where with Comey, I think he could have done, if he couldn’t have gone as far as you did which is to just call a reporter and have a direct conversation or have the reporter call you and have the direct conversation.

Anne Milgram:             What he could have done is said, look, I believe that the President did things that were inappropriate and I’d be happy to answer questions before congress and I’ve memorialized incidents that the Bureau has and let the process sort of play out from there. I think my point is that there are a lot of ways he could have conveyed that message.

Preet Bharara:              In fairness on his behalf, to argue from his perspective, I tend to agree with you but from his perspective he’s thinking perhaps, well, if I make clear that I have this information than someone will intercede, someone will get in the way [crosstalk 00:24:13]

Anne Milgram:             Right, that’s what he was afraid of.

Preet Bharara:              But I still go back to the issue, if you have important information and you think there should be the appointment of special counsel, and you’re no longer in office, and you decide to get that information out indirectly with anonymity, through a media outlet, that’s sort of suggesting you were aware that it’s inappropriate because why not attach your name to it.

Anne Milgram:             Right, I agree, the anonymity piece and the leak, what makes it a leak is the anonymity piece. As opposed to him just coming out and saying, look, I know this is a violation, I know I shouldn’t do it but I’m a whistle blower and here’s why I’m doing it. I wouldn’t have agreed with that either by the way, I think there are ways to have gotten it out. But it would have felt a little bit less sort of troublesome then the reaction which is basically tell your friend to tell the New York Times that hey, Trump said inappropriate things and there are documents that corroborate that.

Preet Bharara:              But I want to make clear again, people listening to this, I mean I think people have strong views about this. I agree with the people and associate myself with the people who say that a comparison of the conduct by Jim Comey as outlined in this report, compared to the conduct that he was setting forth and memorializing in the part of the President is like not night and day but like the deepest, darkest winter and summer. And various people who you and I know have tried to analogize this in various ways. I just want to read one of them. Because the context is important. And the IG in an odd way I don’t think meant to do a disservice but given the nature of the IG’s job. I mean the IG is not in the business of pronouncing judgment about what the President did, right? So the IG is pronouncing judgment on what Comey did and whether or not he abided by all the procedures and policies and leaves out context which I think for people in the public who like to weaponize reports, it leads to an unfortunate result.

Preet Bharara:              But here’s my former colleague, Barbara McQuade, the U.S. Attorney in Detroit, who said, “look, the report raises an important questions about how we should treat whistle blowers, criticizing Comey for mishandling documents that he felt conveyed an important threat to the public seems like scolding firefighters for getting your carpet wet while putting out a four-alarm blaze.” What do you think about that analogies like that?

Anne Milgram:             I think that Barb McQuade raised a really interesting and important point about whistle blowers that you and I are talking about which is what do you do if you’re the director of the F.B.I. and you feel like you have to blow the whistle on someone. And I think this is a real conversation, it’s a fair conversation. And I also agree that look, part of the problem that I think, part of the problem that a lot of our colleagues are having is that it looks like almost no rules apply to the President and that he’s sort of above the law with his conduct in many different regards. I mean, take the most simple example is what you just talked about with him tweeting out what was a classified photo and yes, he can declassify just like Jim Comey can declassify, you know, can classify. But it still does look like there are different standards for different people.

Anne Milgram:             But I really believe this very strongly, when other people act badly, it doesn’t give you the right to act badly too. And there are rules and values and principles that go beyond all of us and it’s a race to the bottom if we stop saying that everyone has to abide by the rules. Even if we think that the President is not being held accountable.

Preet Bharara:              What about Deep Throat? It just occurred to me.

Anne Milgram:             Right, that’s a great example.

Preet Bharara:              He was the deputy director Mark Felt, right?

Anne Milgram:             Yup.

Preet Bharara:              Their source for all this information-

Anne Milgram:             And who was the deputy-

Preet Bharara:              … about the President of the United States, Richard Nixon and who was the deputy director of the F.B.I. and history judges that a little bit differently. And I don’t know how we would have judged it then, I’m not saying this is that but look, I think when we’re making pronouncements about these kinds of things, that it’s important to understand the wider context, what the motivations of the people were when engaging in the conduct. And it’s a little bit easy to second guess, I don’t think I would have done it that way, I don’t think you would have done it that way. But look, maybe if that hadn’t been done, there wouldn’t have been the appointment of a special counsel, which was the explicit goal stated by Jim Comey and I think it was good that we had the appointment of a special counsel.

Preet Bharara:              Because the whistle blowing is odd, whistle blowing you think of normally as being something where some bad conduct or waste or fraud or abuse is happening at some institution, governmental or otherwise that nobody knows about. And so you whistle blow and usually you whistle blow to the F.B.I. or to the public and then the F.B.I. or the cops open up an investigation. Here there already was an investigation presumably of some of these things but it was just happening internally. And in an environment where Jim probably thought, well, I’m being fired, maybe the next guy is going to get a loyalty oath like I got. The next guy is going to be asked for loyalty like I got.

Anne Milgram:             Absolutely and maybe will give it.

Preet Bharara:              Yeah, what kind of trust can I have that in the ordinary universe I would have, that the regular order of things, the neutral independent F.B.I., neutral and independent DOJ will not have its rule overborne by the President. I don’t have faith and confidence in that anymore. The only way this is going to be able to get done is if there’s a special counsel, which I actually agree with. I have some ability to move the needle on that by getting this information out. All I’m saying is, it’s not crazy to be engaging in that thought process.

Anne Milgram:             Right, I agree with that completely. And nor do I think it’s clear, I actually do credit that Comey was completely authentic in saying, I was concerned about our democracy and I really did believe that we needed a special counsel and I was doing what I thought I needed to do. So I don’t have any question of his sincerity. There’s also a moment where I think that there were times when I was AG and I’m sure you had them when you were U.S. Attorney, where you’re the person who has to decide, and someone comes to you and you think, whew, yeah, who do you ask? That’s a crazy one. And the bottom line is sort of the buck stops with you and he was the director of the F.B.I. there’s no one else really he can turn to, he had probably had a variety of reasons to believe that there were issues at the senior level of the Department of Justice. So it’s not clear what avenues he had internally.

Anne Milgram:             I do believe though that I would have a slightly different view of this if we came to a point where it was clear that Comey had made a decision the public needed to know that the President was interfering with the operation with the F.B.I., was asking the F.B.I. director for loyalty oath. If Comey had taken different steps to effectuate that short of just like boom, I’m going to leak it out under a cloak of night through my buddy.

Preet Bharara:              Did you just snap your fingers?

Anne Milgram:             I did.

Preet Bharara:              That wasn’t a sound effect-

Anne Milgram:             It was a boom, I was trying to do my Emeril Lagasse like, bam! [crosstalk 00:30:52]

Preet Bharara:              When Anne Milgram snaps her fingers, that’s serious stuff because I don’t think you’ve ever done that.

Anne Milgram:             Do you know what I mean, there’s a way in which he just decided like, yeah, the leak is the thing to do. And the goal of thinking that he had relevant information that was important for this conversation is different than the way he effectuated it.

Preet Bharara:              There’s another observation to make, and again I don’t mean to compare my situation to Jim Comey’s situation but there is a lot of this rhetoric, heated rhetoric floating around about what were the motivations of Jim Comey and you and I think agree that he was worried about democracy. But some people might say arguably, well he was also angry because he had been shit canned by the President, he had been fired by the President. And fired in a pretty rude and obnoxious way. If people recall he was-

Anne Milgram:             And embarrassed, he was out giving a speech.

Preet Bharara:              He was in California and he was out of a job.

Anne Milgram:             He saw it on the news.

Preet Bharara:              Not that Jim Comey needed the employment of the F.B.I. to make a living. But there’s of people who will say well, if you were fired by the President, then maybe your motivation is revenge. And look, I faced that a little bit. I was fired by the President, nothing I do, nothing I say, what I say on the podcast has anything to do with the fact that I was fired by the President but not everyone’s going to believe that. People say all the time on social media and otherwise at events that I go to, well, you’re saying all those because you’re a disgruntled, fired employee. I’m saying those things because I’m also concerned about democracy, I think the most important thing for America is to defeat Donald Trump in the next election. But people will be able to cast a dispersion on anyone who has some basis to have felt like they were wronged by the President. I did not-

Anne Milgram:             And the other complicated piece with Comey for what it’s worth is that we’ve already seen an IG report his conduct during the election. He went to the mic, you and I have talked about this.

Preet Bharara:              And there’s another one to come, one or two more.

Anne Milgram:             Yes, and I strongly disagreed with speaking publicly about ongoing investigations and think it was one of the worse mistakes he made. And again I like him and respect him and think he had the best interests. I don’t think he was thinking about his own personal gain at any moment in this. But that being said, it’s also sort of when you think about his critics it’s set up for people to say, well he just basically does what he thinks he needs to do and he puts himself above the rules. There is a sense of that sort of vibe I think going as well.

Preet Bharara:              Yeah, I totally agree with that. I do also agree with people who say that the report was pretty I think well written and the conclusions and the analysis is laid bare and is set forth pretty clearly and gives some ammunition to critics and gives some ammunition to Jim Comey. But I also think it’s a little overwrought.

Anne Milgram:             I feel the same.

Preet Bharara:              Here’s a sentence from the report and people ask the question, what do you think about the IG? I know Michael Horowitz has been the IG for a number of years, served in the Obama administration, supposed to be independent. Continued to serve under Trump. I know him to be a good and honorable person also. Let me read this, “By not safeguarding sensitive information obtained during the course of his F.B.I. employment and by using it to create public pressure for official action, Comey set a dangerous example for the over 35,000 current F.B.I. employees and the many thousands more former F.B.I. employees.” What do you make of that? Dangerous?

Anne Milgram:             Did you see, I think it was Harry Litman who referred to Horowitz as a school hall monitor.

Preet Bharara:              I don’t know if I would say that but-

Anne Milgram:             No, here’s what I think is valid about it. The IG report sort of puts everything on the same level and some of it particularly Comey making the memos and keeping a copy. Look, you can understand it, your boss does something you think is terrible, you don’t necessarily go and report your boss the first moment it happens, you write memo to your file or an email. You keep a copy of that. I think a lot of people could understand it’s a very human reaction to do it. And Horowitz equating all these things sort of equally devastating violations of F.B.I. policy and employment contracts just felt, it did feel overwrought to me.

Anne Milgram:             I do think that there’s a line with the leak that is different. I think he would have done a much better report if he basically acknowledged the context in which it was happening, acknowledged that there was no playbook, that Comey’s intentions again, I think were good. And then talked about, look there are some violations that he violated and these are technically letter of the law violations but then there’s one thing that’s really a problem which is taking it into your hands to leak information that he did know was related to an investigation. I think to me it would have been a lot more credible, I don’t want to say it’s not credible because I do think the report is credible. But the tone just was, it was over the top to me.

Preet Bharara:              Yeah, I agree with that. What’s funny to me also, if anything about any of this can be funny, is the President’s reaction. And it’s totally predictable right? When there’s a report that’s actually disastrous for him, like Mueller report, he says, “Total exoneration!”

Anne Milgram:             Exactly.

Preet Bharara:              And there’s a report here that’s mixed for Jim Comey. As we said at the outset, no lying, no leak of classified information but strong terms of violated policies and procedures. The President says, “Disastrous!” And says, “nowhere reflected in this IG report at all, Donald Trump tweeted our rights and liberties were illegally stripped away from this dishonest fool”

Anne Milgram:             Yeah, not true.

Preet Bharara:              Yeah, not of that was said. I know Trump didn’t read either one. And then there’s this other model of principle conduct and behavior in modulated rhetoric, Jason Chaffetz who used to be a member of Congress who says, “James Comey has been rebuked at the highest level with much more to come. An IG report doesn’t get any stronger, calling him dangerous and insubordinate.” Yeah, the IG report does get stronger.

Anne Milgram:             Many of them have been, yes, I agree. The other thing I have to just ask you is why would Rod Rosenstein not stop talking about it? I mean.

Preet Bharara:              I don’t know what’s going on with that Twitter account.

Anne Milgram:             I don’t know but it’s like he is also … his tweet was, it is important to follow established policies and procedures especially when the stakes are high. This is from the guy who it’s been reported again, I feel like you that it was credible, that’s been reported to have wanted to have wiretapped the President of the United States. It’s like some of the reaction I think is inaccurate, some of it is unfair. What’s fascinating to me is it’s gotten a lot of people talking. You and I have just spent a lot of time talking about something that other than the classified fact, we kind of knew all of it. I mean, there wasn’t a lot new in it.

Preet Bharara:              No, but it becomes weaponized in part because the President’s allies want to attack Jim Comey. Because Jim Comey has posed something of a threat to the President. We know when the President feels about people who undermine him in any way, whether they work for him or whether they don’t work for him.

Anne Milgram:             Preet, we got a question about Andy McCabe from a listener named Ellen, who asks, “Andrew McCabe potentially being criminally charged, what’s behind it? Do they have a case, can he defend with Trump tweets or the ins and outs of his relationship with DJT, Donald Trump. Inquiring minds want to know, how far can T, Trump, go to punish those who he thinks have betrayed him or who have been insufficiently loyal? Ellen.”

Preet Bharara:              So that brings the other issue of what’s happening with Andrew McCabe, who is Jim Comey’s deputy. And we’ve talked about this before on the show, there was another IG report, some months ago, which made actually I think worse findings that were made about Jim Comey and that is, lack of candor on the part of Andrew McCabe which actually got him fired on the eve of [inaudible 00:38:15] a particular way which respect to his pension. There’s a lot of discussion about whether or not he’s going to be charged. There has been reporting and again I don’t know if they’re true. That there have been meetings between Andy McCabe’s lawyers and the U.S. Attorney in the District of Colombia, who would be the decision maker and whether a charge would be brought or at least one of the decision makers, or at least one of the decision makers. And then also with the deputy attorney general.

Anne Milgram:             Which is the number two person in the Department of Justice, that’s a high level meeting.

Preet Bharara:              Should we do the substance first or tea leaves first?

Anne Milgram:             Substance maybe? Can we do it quick?

Preet Bharara:              Okay.

Anne Milgram:             I mean, the tea leaves are the more interesting.

Preet Bharara:              Let me just set it out, I’m curious to what you think, the Inspector General report lays out some facts on multiple occasions that it appears Andy McCabe was not fully candid. Those don’t seem to be exaggerations. That’s a much different thing than saying, he should be criminally charged. Because intent plays a huge role, background and context play a huge role. To my mind, the thing that helps Andrew McCabe the most and maybe other people have a different view and I’ve seen some conflicting views on this. Is that he made these statements about whether he authorized information to be given to the press, again another situation where a leak has gotten somebody in trouble with press. That some days later, if I read the report correctly, he or his lawyers called the investigators back and say, I’ve thought about it some more, McCabe has thought about it some more and he wants to correct the record. I am not aware of cases in which somebody makes misleading statement that arguably are false and then while the investigation is still pending, corrects them that a charge has been brought in those circumstances.

Anne Milgram:             Right, I mean, yes. I have a couple of reactions. I mean, first it does go back to the leaking again and I think now I feel like I might sound like a school monitor but leaking is bad and no good comes of it in my view. And this is another example where McCabe authorized a leak to the Wall Street Journal that was doing an article about an investigation into the Clinton Foundation and that was October of 2016, right before the election. McCabe gets questioned about it by the F.B.I. in May of 2017 because it’s a leak about a pending investigation. So they ask him questions and he says at that time he did not approve it and didn’t know who did.

Anne Milgram:             Other evidence is contrary to that. In late July, two investigators with the Inspector General’s office interview McCabe about the same exact question. And he says the same thing he said to the F.B.I., which is, “I don’t know, I didn’t do it.” And they audio record that so that’s on tape. Then a few days later, McCabe comes back and says, “Actually no, that’s not the case and I misremembered. I did authorize someone to have this conversation with the Wall Street Journal.” And the other piece of evidence which I think sort of is been talked about a lot is that one of the witnesses who testified on this matter was Lisa Page, who of course has been in the news for having the text messages back and forth with Peter Strzok. What she says is that McCabe authorized her to speak with the Wall Street Journal and that she didn’t think he had a motive to lie because he was authorized as the deputy F.B.I. director to share that information with the newspaper. She’s basically saying there’s no motive because he could have done it or not done it, there’s no real reason for him lie.

Anne Milgram:             I think a couple of things. One is the IG report is clear and I think compelling that McCabe was not truthful when he was with the F.B.I. earlier in the summer and then when the Inspector General interviewed him later, he was also not truthful. And that’s going back to May of 2017. Then the late July interview with the Inspector General. So I think he did correct but he had a set of statements going back to May that were also not truthful that he hadn’t corrected. So that’s one point. But the bigger point to me and the thing that concerns me greatly about this, is that if you and I were to think about who gets charged with false statements, it’s generally people who are part of a criminal investigation. Where there’s an active investigation into whether or not a crime was committed. And that it’s not an internal disciplinary question. And the fact that somebody lies really thwarts that investigation. So we can actually never know whether or not a crime was committed.

Anne Milgram:             Here McCabe is being interviewed because of a violation of … it’s not a criminal investigation that McCabe is undergoing. It’s part of his sort of employment and it’s very, very rare that we charge people who lie when they’re being interviewed by their employer.

Preet Bharara:              But the other thing is, we keep falling into this. I’m not going to say it’s a trap. But I’d like to think we’re careful lawyers and we think about precedent. We say, look in an ordinary situation someone in this position might not be charged for these reasons, et cetera, et cetera. But that’s not the situation here. You have all that going on, and at the same time you have a President of the United States, with the largest bully pulpit on the Earth who is clamoring for retaliation against by name, Andy McCabe, over and over and over and over again. So maybe in a different context, conceivably, a federal criminal charge against Andrew McCabe would be warranted. I’m not saying it is but perhaps it might be.

Anne Milgram:             I think that would be out of the norm though-

Preet Bharara:              No, true.

Anne Milgram:             Even that would be deeply out of the norm.

Preet Bharara:              But now in the context of everyone having a loss of faith in how decision making in the Department of Justice is done and whether decisions are made based on whether or not you’re an ally of the President or a critic of the President. To now charge criminally Andrew McCabe is going to give no one confidence that a decision is being made for the right reasons. So the President himself by the way, has caused situations time and time again where even objectively neutral, arguably correct, hypothetically correct, decision making is called into question.

Anne Milgram:             Right, I agree with you on that. Let’s go to the President piece in one second. But I would just argue, objectively on the facts here, I would not charge this case. And I would not charge it because of the fact that it was an internal employment matter. And that he did ultimately correct the record that … and again, we’re outside, so I’m not looking at completely the inside. But I do not think there could be could be circumstances that you and I don’t know sitting on the outside. But given what we know in IG report and given the sort of internal sort of employment matter focus of this inquiry, I am comfortable saying that he’s been held accountable for his actions. He was fired, if anything it was an extreme version of it to do the pension thing.

Preet Bharara:              Do you think that it was appropriate for the there to be a criminal investigation?

Anne Milgram:             I think it’s always the case, yes, I mean the short answer’s yes. And the reason why is that it’s almost always the case that Inspector General reports are referred to the U.S. Attorney’s office for review. And that’s because there are potential violations of the law. If that’s the process and the standard, yes, I think it’s fair that they did with Comey, with McCabe what they always do. Now do I think there are real issues, let’s talk about this specific case beyond what you just said about the President and I agree with you, you can’t take Trump out of the … you can’t take him out of this equation. That you have essentially the leader of the United States of America calling for somebody to be charged and prosecuted, which is deeply problematic. You also have and this is tea leaves, but you also have two prosecutors stepping down from the case.

Preet Bharara:              Yeah, but I don’t know what I understand, I don’t know if I believe that to be about decision making, differences of opinion or not. That’s always iffy to me.

Anne Milgram:             I don’t know, one I wouldn’t really blink at, two I find unusual. And again, we are reading tea leaves a little but I do find two unusual. I also find one of them went to private practice. Law firms can wait for you for six months or a year if you have a high profile matter for example that you are prosecuting. There’s a little bit here that does feel strange to me. Again I don’t want to draw conclusions but there’s a certain … I think that they’re fair questions to asked about the impartiality of the Department of Justice and whether or not the President has influenced this matter.

Preet Bharara:              Look there needs to public confidence in decision making in law enforcement. And whether you like it or not, sometimes those things can be influenced by the general context. Now, to be clear just because the President has said shit about you should not grant you immunity from prosecution.

Anne Milgram:             Right, yes, agreed.

Preet Bharara:              In different contexts people have said and things that have been harmful to prosecutions, you have every once in awhile get an over aggressive president or attorney general talking about some scourge, a mafia member or someone else, something was said about [inaudible 00:47:10] Mohammed by the attorney general once which was not helpful to a future fair jury pool potentially. So it doesn’t mean you’re off the hook, if you’ve done something bad. In the same way you shouldn’t be off the hook if one agent misbehaved in a particular way. If you did the crime, you did the crime. But depending on what the crime is, what the nature of it is, and how much pressure there’s been brought to bear on bringing a criminal case against an adversary, I think you’d take that into account also.

Anne Milgram:             Don’t you feel like, maybe that’s not the right way to ask this, here’s something that concerns me is that, there’s a lot of negative about the F.B.I. in this sort of news cycle of Jim Comey, Andy McCabe, leaking, question on whether or not they were violations of the law, questions of whether or not classified information was leaked. Even that leaked conversation to frame this conversation this way I think is deeply cuts at the view of the institutions. I think the President has a interest I think in undercutting institutions often. And basically saying you can’t trust anyone including the F.B.I. I worry a lot about, you and I are having a pretty sincere legal conversation about who should be charged, who shouldn’t be charged, what’s the right and fair thing. And at the end of the day, the President is in some ways succeeding in framing the F.B.I. and its leaders as partisan and untruthful or people who engage in conduct that is in violation of even just their employment rules.

Anne Milgram:             That’s a problem for us as a country and I think again I want the Inspector General, he or she has to do what they have to do and it’s really important that people be held accountable. But there is something about this larger conversation that I think, it is deeply problematic in terms of our institutions. Look, I believe very much that the men and women in the F.B.I. overwhelmingly are extraordinary Americans, people who do their best for the country. So I think it’s not a fair perception of them but I do think that there’s some framing going on here that is deeply troubling to me.

Anne Milgram:             Where are you having your Christmas party? In other news.

Preet Bharara:              Yeah, mine probably cost a little less than $30,000.

Anne Milgram:             Yeah? So Preet we got a question from Twitter from @esnyder, Eric Snyder,”@preetbhara, love the pods, A.G. Barr as booked a $30,000 family party at the D.C. Trump Hotel. Is this a violation of the emoluments clause or just gross impropriety? If not illegal, why not? #askpreet

Preet Bharara:              Sitting Attorney General, Bill Barr has been in the news lately because apparently he has decided to have a personal family holiday party slash Christmas party, I say Christmas when appropriate at the Trump Hotel in D.C. which is near the Department of Justice. Now right off the bat, let me say a couple of things, it is not unlawful, no one is saying it’s unlawful. It is not even an ethical violation, and people who are as well versed as Walter Shaub, who is the former head of the office of special counsel at the White House. As I think opined that it doesn’t clearly violate an ethical rule. George Conway, the husband of the Kellyanne Conway-

Anne Milgram:             A fervent critic of the President.

Preet Bharara:              Very, very, fervent critic of the President, he reacted dismissively and said frankly, this is on Twitter, “Frankly this is a silly story, Barr’s paying for the party out of his own pocket. The hotel is next door to DOJ.” Separate from that, if you believe the reporting, he apparently tried to hold his party at some other hotels and he had a contract with one, I think the Willard, maybe I have that wrong. Yeah, he had a signed contract with the Willard Hotel, which is very nice.

Anne Milgram:             It was either double booked or they realized that they didn’t want to host Bill Barr and his quote, friends.

Preet Bharara:              Hey sir, we are double booked.

Anne Milgram:             Oh, it’s funny we didn’t check our calendar before we took your $10,000.

Preet Bharara:              Hey sorry, Mr. Barr, double booked. It’s a very nice hotel.

Anne Milgram:             That seems a little weird to me. The Willard is a serious organization right?

Preet Bharara:              Who are you bumping the AG for?

Anne Milgram:             Yeah, it would be great if it was Trump.

Preet Bharara:              I believe he’s a cabinet official.

Anne Milgram:             He is.

Preet Bharara:              I would think that the Willard would have handled the double booking [crosstalk 00:51:22]

Anne Milgram:             I also don’t believe that the Willard would have double booked. I mean it’s possible anyone could have done it.

Preet Bharara:              Look, all our institutions are crumbling.

Anne Milgram:             One by one, even Washington D.C. hotels.

Preet Bharara:              Booking systems and elite Washington hotels are not what they used to be in the age of Trump my friend.

Anne Milgram:             I mean, okay, it’s legal, but I mean what a bad look. What a bad idea.

Preet Bharara:              He clearly doesn’t care.

Anne Milgram:             He doesn’t care.

Preet Bharara:              You know that you bought all his criticism, you may think it’s stupid and you have to have this party and you know that people are going to go bananas over it. I think some people have gone more bananas than they should, I think I’m clear eyed about this. I think it looks terrible, I mean.

Anne Milgram:             I think it looks terrible.

Preet Bharara:              Not in a million years if I were in that position, in fairness again to him, they said they consulted with ethics officials who said, like other people have said, like critics of the President have said, doesn’t clearly violate an ethical rule. But there’s lots of stuff you can do that doesn’t violate an ethical rule and depending on the circumstances, you don’t do it. And why you would engage in this silly party thing, when there’s already a lot of people who doubt the fairness of your decision making and the neutrality of your position and whether or not you’re trying to create favor with the President. I mean do I think that there’s going to be a huge difference in the relationship between the attorney general and the President based on this booking? No. But also what else is happened in the last week-

Anne Milgram:             It’s the appearance question though too.

Preet Bharara:              In the last week as we sit here and record this, the Vice President of the United States is in Ireland. And he’s staying I think three hours away from Dublin where he’s going to have official meetings. You know why, because the President suggested to him, why don’t you stay at my property and then your taxpayer money and my taxpayer money is being spent on sending Mike Pence three hours to take a helicopter and all the safety issues that that causes. And on top of that, the President of the United States himself, goes on television and in an extended advertisement for one of his own other freaking properties in Florida says, “We’re going to host the G7 at my property in Florida because it’s wonderful and it’s near the airport.” In the context of that, the G7, the Vice President, for Bill Barr to say like, hey, nothing to see here, I’m having my private Christmas party for $30,000 at the President’s hotel, it just is gross.

Anne Milgram:             It’s corrupt, no, totally. And whether it’s an official ethics violation or not, he shouldn’t have done it.

Preet Bharara:              I didn’t mean to get heated.

Anne Milgram:             Yeah, I’m heated too, who throws a $30,000 Christmas party, number one. Number two, you and I both went to a lot of DOJ functions, they were generally at the bar down the street and everybody paid their way. A lot times they were at people’s houses, who hosted or it was a potluck.

Preet Bharara:              I don’t begrudge someone having-

Anne Milgram:             It’s fine.

Preet Bharara:              … an expensive party if you could afford it. But in light of all this other nonsense and by the way, I do think also, no cabinet official should do it. The labor secretary shouldn’t do it, the treasury secretary. But I think above all people, the attorney general-

Anne Milgram:             Agreed, agreed.

Preet Bharara:              … shouldn’t do it, it just is silly. Even if the criticism is silly. If I’m siting in the office, I’m thinking, well, there’s nothing wrong with this, doesn’t violate anything, people making a mountain out of a mo hill. Even George Conway-

Anne Milgram:             You still wouldn’t do it.

Preet Bharara:              You still don’t do it.

Anne Milgram:             You still wouldn’t do it. And by the way [crosstalk 00:54:29]

Preet Bharara:              Why do you need to buy criticism? Why do you need to buy it? What’s the thing you told me, your Aunt or your mother?

Anne Milgram:             That saying, like I can afford trouble but I don’t want to buy it. This is a great example of … actually I don’t think Bill Barr can afford trouble because he’s undercutting the institution of the Department of Justice. Because there are a lot of people who question his fairness after the Mueller report and his summary. His summary, non-summary. So to come out and look like he’s beholden and basically lining the pocket of the President of the United States, it’s a bad look, there’s no reason for him to be doing it.

Preet Bharara:              I’ll tell you a quick story.

Anne Milgram:             Also, by the way, if you and I called around to other hotels and restaurants in D.C.-

Preet Bharara:              We should ask.

Anne Milgram:             I bet we could find a place for him to host the party.

Preet Bharara:              For 200 people.

Anne Milgram:             Yes.

Preet Bharara:              Very quick story, it’s a totally different circumstance but when I was the U.S. Attorney we had a meeting to discuss the upcoming conference. Every I think, two years or so, with some regularity we’d have a U.S. Attorney conference and all the U.S. Attorneys in country they meet and they have educational programs and the attorney general talks and you share notes about how to run your offices. And I forgot where we were doing it, we were doing it somewhere outside of Washington D.C. and there were two hotels. And one was names whatever it was called, I don’t know, the Hilton something. And the other was called the Ritz. It turns out that the Ritz was exact same price as the other hotel and for various reasons, logistical or otherwise, I don’t remember, the Ritz was the preferable hotel for us. We, I think, voted unanimously not to have it at the Ritz.

Anne Milgram:             Right, because it looks bad.

Preet Bharara:              It looks bad.

Anne Milgram:             I’ll tell you something else, the AG events, every year there’s a number of annual AG meetings and there are a number of AGs who are elected and so there are events that are hosted by people who are contributors to the AGs, often big business and they host these events for the Democratic and the Republican AGs and all the AGs together. And I never attended a single one because I felt compromised that if I would go and I potentially would sue one of these companies and there were companies that were ultimately sued in the history of time that had hosted things at AG events. I just didn’t want to be involved in anything that the appearance would have undercut … people would have been justified in asking, was I making decisions based on the facts and the substance versus relationships or other things. And you just don’t want to put yourself in that position. So the final takeaway is I would not host a party at Donald Trump’s hotel.

Preet Bharara:              Do you want to end on a tweet, do you want to read a tweet for us Anne?

Anne Milgram:             Yes, yes.

Preet Bharara:              Is it from the President of these United States?

Anne Milgram:             Yes, it is from the President of the United States and you had sent it to me the other day and-

Preet Bharara:              Part of my week is spent thinking, huh, could Anne read this with a straight face of not?

Anne Milgram:             What’s funny? What’s funny? It’s often a tragic comedy. I don’t know whether to laugh or cry.

Preet Bharara:              In three parts.

Anne Milgram:             Trump tweet, August 31, “Has anyone noticed that the top shows on @foxnews and cable ratings are those that are, capital F, Fair, parentheses, (or great) to your favorite President, me!”

Preet Bharara:              Me, exclamation mark.

Anne Milgram:             Exclamation point. “Congratulations to @seanhannity for being the number one shoe on Cable Television!” Shoe?

Preet Bharara:              I always thought Hannity was the number two shoe.

Anne Milgram:             What kind of a shoe would he be? Sneaker, sandal, stiletto?

Preet Bharara:              Not a stiletto.

Anne Milgram:             Cowboy boot? Loafers. Yeah, the dad sandal look with socks? Preet just looked at me with … there was just a look of pure fear in your eyes. [crosstalk 00:58:02] I don’t wear socks with my sandals.

Preet Bharara:              Because I don’t want to be thinking about Sean Hannity’s feet and you’re making me do that.

Anne Milgram:             Well Donald Trump made you do that. Don’t blame the conduit. I’m just the vessel for the image. You know what’s extraordinary about this, both that we’re talking about Sean Hannity’s shoes and the the President of the United States fires off these tweets so quickly with so little care that he can’t even bother to spell show right.

Preet Bharara:              Right, sometimes it’s a classified photograph taken by one of satellites. And sometimes, look, the number one shoe.

Anne Milgram:             Can we go to the classified photos for one second, there are a couple of scientists who have literally pinpointed what satellite took the … I don’t know if you followed this on Twitter-

Preet Bharara:              Oh yeah.

Anne Milgram:             It’s amazing, you can watch a 30 part thread where they pinpointed what satellite, where, how far it was and have been able to calculate an incredible amount of detail from that one photograph, which is an example of why it shouldn’t have been posted. What are you going to post this week, Preet?

Preet Bharara:              I don’t know. I don’t plan these in advance.

Anne Milgram:             Pictures of your shoes?

Preet Bharara:              Pictures of my shoes. All right, so I’ll see next week Anne. We’ll be back next Monday at our usual hour and day. So send us your questions to [email protected]

Anne Milgram:             And we’ll do our best to answer them.

Preet Bharara:              One more quick note, the Cafe Insider newsletter will be sent on Thursday this week instead of Wednesday. 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. This fall Stay Tuned is going back on the road, Denver, Atlanta, Minneapolis and Detroit. Head to now for tickets. Hope to see you there.