Preet Bharara: From CAFE, welcome to Cafe Insider. I’m Preet Bharara.
Anne Milgram: And I’m Anne Milgram.
Preet Bharara: How are you, Anne?
Anne Milgram: I’m good. How are you?
Preet Bharara: I’m good. Daylight savings so I feel like a new man.
Anne Milgram: Good and bad.
Preet Bharara: An extra hour of sleep, no?
Anne Milgram: Yeah, I love the extra hour of sleep, but I don’t like the getting dark early at night part.
Preet Bharara: Yeah, I couldn’t care less. I’m inside anyway.
Anne Milgram: At 4:00.
Preet Bharara: It’s not like I’m a rock climber-
Anne Milgram: When I lived in England-
Preet Bharara: … or a hunter.
Anne Milgram: I went to grad school in England for a year and it gets dark at 4:00. Everybody’s eating dinner at 4:30 and in bed at 9:00. It’s pretty healthy.
Preet Bharara: Sounds like what Michael Pence does. Before we start with a lot of the developments in the last week, we should point out to everyone that 365 days from today is an election.
Anne Milgram: That’s an amazing thing.
Preet Bharara: I’m not saying a year because it’s weird. It’s November 3rd of 2020 and today’s November 4th but it happens to be a leap year.
Anne Milgram: Oh, I love a leap year.
Preet Bharara: You’re looking at me like, “What? You don’t understand the calendar?”
Anne Milgram: How did you figure out that it’s 365 days in advance? What made you realize this?
Preet Bharara: Because people yesterday kept saying a year from now and then someone pointed out on the Twitters that it’s a leap year.
Anne Milgram: Wow.
Preet Bharara: So yeah, it’s a year, sort of. But it’s a year and a day.
Anne Milgram: Amazing. Pretty soon.
Preet Bharara: Which is the minimum sentence for a felony. A year and a day. It’s true. You hear it all the time.
Anne Milgram: A misdemeanor is up to a year.
Preet Bharara: Up to a year. What’s a high crime? Oh, impeachment. It’s totally different. Maybe I should have gotten that extra hour of sleep-
Anne Milgram: A little criminal justice humor to start off.
Preet Bharara: … because I’m saying a lot of dumb stuff to this morning. How shall we begin? Oh, you know what? First off, right off the bat, Donald Trump.
Anne Milgram: Moving.
Preet Bharara: Moving.
Anne Milgram: Yeah.
Preet Bharara: That’s good, right?
Anne Milgram: I think it’s fine.
Donald Trump: “Bye, bye, bye.”
Anne Milgram: Do you think it’s really based on politics or is it also based on taxes and whatnot?
Preet Bharara: I think I’m going to say whatnot.
Anne Milgram: Whatnot.
Preet Bharara: Is that your new word, whatnot?
Anne Milgram: I got to mix it up with my vocabulary.
Preet Bharara: We’re not going to spend a lot of time on this and I don’t want you to feel self conscious, but there has been a lot of discussion of your use and pronunciation of the word extraordinary.
Anne Milgram: I predict the following. I will try not to say it today, but at some point I will say it and then I will erupt in laughter.
Preet Bharara: And then I will laugh.
Anne Milgram: Yes.
Preet Bharara: And then I have to take a swig of vodka or actually water. So he’s leaving. Somebody asked the question, Tim Driscoll says, “Hey, #askpreet could this very stable genius’s decision to relocate to Florida have anything to do with the great state of New York’s new law regarding double jeopardy? I hope you and Anne Milgram would agree that this is an extraordinary question. #staytuned #cafeinsider.” My short answer to that question is no. He doesn’t gain any legal benefit from any conduct that has occurred up till now or that occurred in the state of New York at all.
Anne Milgram: He can still be prosecuted in the state of New York for anything he’s done. By the way, his business is staying here at this moment in time so he could be prosecuted in New York for anything going forward related to his business. Nothing about the move feels like it would change the past. It’s a little bit of a snub to the existing… There’s a democratic governor, a democratic mayor, prosecutor, Cy Vance, who has been pursuing his tax records. It could just be the, “To heck with you. I’m moving to Florida.”
Preet Bharara: Just so people understand, non lawyers, the legal principle is not that you can only be prosecuted where the defendant lives unless in the future he commits some misconduct in Florida. If there’s nothing that occurs in the State of New York or in the Southern District of New York for a federal crime then that makes a difference. Otherwise, it does not. By the way, it’s not super unusual for presidents to change their permanent residence. I was reading over the weekend Richard Nixon did it once or twice while he was in office. So it happens.
Anne Milgram: The thing about moving residences is what it impacts you the most are your taxes, right?
Preet Bharara: Yes.
Anne Milgram: It doesn’t impact. Again, if Donald Trump shot someone on Fifth Avenue, still a crime in New York.
Preet Bharara: Let’s start with a kind of interesting public disclosure that’s being made with respect to BuzzFeed that made a freedom of information request-
Anne Milgram: And CNN.
Preet Bharara: … and CNN for various underlying documents connected to the Mueller investigation. Among those documents are something called 302s. You and I talked about 302s all the time when we were in our prior jobs. 302s’ just a memorandum of interview that is typed up by an FBI agent in connection with an investigation.
Anne Milgram: The common practice would be, you’re interviewing a witness, you have an FBI agent with you, as the witness is speaking, the FBI agent is taking handwritten notes and then will go back after the interview concludes and will type up a summary of that conversation. It’s not a verbatim transcript, but it’s a summary and it’s important. Everybody involved in the case has a copy of that. Everyone knows what’s happening. There’s a written record of that interview and that’s one of the ways in which federal investigations work.
Anne Milgram: In an investigation like the Mueller investigation, there will be many 302s because they conducted a lot of witness interviews. What’s pretty interesting I think is a couple of things. The first is that, as a rule, when you finish an investigation in the Southern District, those 302s are not released. The US attorney’s office wouldn’t release them.
Anne Milgram: Here, the Mueller investigation is done, there’s no further charges that would be brought in connection with it at this point in time. So BuzzFeed and CNN go and they say there’s a huge public interest in seeing the underlying FBI summaries from these witness interviews. What’s important is that Mueller took from those to summarize for his report, which is again very long, but this will be even more detailed, more thorough as to what each person said.
Preet Bharara: There’s so much that it’s going to take months and years for them to be produced.
Anne Milgram: Let me ask you about something that you and I both had a reaction to, which is that BuzzFeed says the Mueller report itself was a 448 page document, but according to the justice department, billions of pages of subpoenas, search warrants, emails, memos, letters, talking points, legal opinions and interview transcripts were produced during the two year probe.
Preet Bharara: Yeah. I don’t think it’s the Carl Sagan justice department. [crosstalk 00:05:51] billions and billions of… I believe millions.
Anne Milgram: I believe millions.
Preet Bharara: Hundreds of thousands, if not millions. Routinely, you would have investigations where there’s so many financial documents, communication records, toll records, et cetera, that it could stretch to a million, 2 million, 3 million pages. A billion, I haven’t seen.
Anne Milgram: Me neither. I don’t know if that’s on BuzzFeed or on the department of justice. But there’s a lot that are coming out and this is the first group that are being released so there’s a lot more that are coming.
Preet Bharara: The bottom line is, I don’t know how much it affects people’s view of the Mueller investigation, but there’s some interesting things that add color. I’m sure they’re going to be some people who will have a view on what Mueller did or did not do because he had to make some conscious choices of what to include in his report, which as we’ve already said, was fairly voluminous. There are going to be pieces of information that will be interesting to some subsets of people that were not in the report and that are in some of these newly released 302s.
Anne Milgram: Can we run through a few of them?
Preet Bharara: Yeah.
Anne Milgram: Because I do think there’s some interesting things here. The first one is that Paul Manafort, who of course was Trump’s campaign chairman for a period of time, he’s now in federal prison after being convicted and then pleading guilty to a number of offenses related to his finances and also to working with the country of Ukraine. One of the things that came out is that Manafort was pushing the conspiracy theory that Ukraine had hacked the DNC emails in the summer of 2016. Manafort was pushing that in 2016 according to Rick Gates, who had been Manafort’s deputy campaign manager and who went on to cooperate with the federal government.
Anne Milgram: What’s interesting is we’ve been hearing the president recently, in the conversation with Zelinsky, talk about CrowdStrike, which is the group that did the investigation for a Clinton campaign and the DNC servers to figure out what had happened and who had hacked the emails. Of course, the American intelligence community has said definitively that it was Russia. Robert Mueller charged 12 individuals who are affiliated with the Russian security service. What’s really interesting is to see that the seeds of this conspiracy go all the way back then to Manafort.
Preet Bharara: And that Donald Trump continues to insist that must be true, continues to talk about it and why. In part because it would exonerate Russia. That’s a theory that people have, but he persists in it. The other part about Manafort that I find interesting is Manafort left the campaign in August of 2016 but it turns out when you look at these documents that he was advising the campaign almost up to the time of the election itself. Then various people around Manafort within the campaign, including Steve Bannon, wanted to keep that secret because they didn’t want people to think that there was any kind of effect from Russia occurring on the campaign.
Anne Milgram: What does Bannon say? Basically, stay away. It’s pretty strong language. “We need to avoid this guy like the plague,” Steve Bannon says in an email to Jared Kushner, dated November 5th. “Paul is a nice guy, but we can’t let the word get out. He is advising us, they’re going to try to say the Russians worked with WikiLeaks to give this victory to us.” So Bannon sees exactly what’s coming probably because he knows what’s happened. It’s very interesting that he’s distancing himself and the campaign although Manafort has been connected. One of the other things that I think is interesting about what you just said related to this question of why are they so eager to blame Ukraine and not Russia?
Anne Milgram: One of the interesting pieces that came out of these documents comes from Rick Gates connected to Konstantin Kilimnik, who was someone who worked for Manafort, is been indicted by the feds, by the Mueller team, and is believed to be connected to the Russian intelligence agencies. That Kilimnik is one of the people who’s pushing this Ukrainian theory as well. Again, it could be because he’s part of the Russian secret spy service and wants to say, no, it wasn’t Russia, it was Ukraine, which would be good for Russia and he would be motivated to do it. But there could be a lot of different reasons why. I just think it’s important to know that it comes to Manafort through this other individual who’s under federal indictment and connected to the Russian spy service.
Preet Bharara: There’s another bit in here with respect to Rick Gates where some interview summaries in the 302s have been disclosed showing that Gates told the FBI there were various moments when he, Gates, tended to believe that Trump and others might’ve learned of WikiLeaks plans ahead of time. I remember that would have been a big deal if Mueller had found that to be so. Based on the lack of charge brought there was insufficient evidence to conclude that.
Anne Milgram: One of the other things related to Gates, which is also important. Again, this is part of the documents that were just released and this comes from an FBI 302 quote Gates, meaning Rick Gates recalled a time on the campaign aircraft when candidate Trump said, quote, get the emails, quote Flynn said he could use his intelligence sources to obtain the emails. And so that comes from a summary of an interview that Gates did and it’s again, really important because I think when you think about the Mueller report, the first volume relates to Russia and basically Mueller concludes that there’s not sufficient evidence to find that there was a conspiracy between the Trump campaign and Russia. But what’s really clear, I think it’s clear from Mueller’s writing, but this just highlights it, is that Trump was trying to get those emails like he wanted to conspire with them.
Preet Bharara: From Russia.
Anne Milgram: Yes.
Preet Bharara: Through among other people, his future national security advisor, Michael Flynn, who seemed prepared and poised to use his intelligence sources to get emails for the purpose of winning a political campaign in the same or a different 302 the FBI wrote quote, Flynn had the most Russia contacts of anyone on the campaign and was in the best position to ask for the emails if they were out there. So, depending on what else comes out, it seems like these 302s show, it may have been a little bit of a closer question as to what level of culpability there was part of the Trump campaign.
Anne Milgram: Yeah, I agree. And again, it doesn’t mean that there’s sufficient evidence of a crime because you know someone wanted to engage in a crime. Just the fact that they want to commit a crime does not make them guilty of committing it. And so that’s important to remember, but it is pretty damning, pretty damning stuff.
Preet Bharara: And maybe the final thing to talk about with respect to this release, also relating to Michael Flynn is the prosecutors have filed papers in court because that sentencing still has not happened. It keeps getting delayed and Michael Flynn has new lawyers and he’s trying to get out from behind the guilty plea that he entered into, claiming that he was tricked into pleading guilty. There are allegations that maybe some of the testimony was altered and the 302s were changed in some way, but now I think they have some underlying notes and the prosecutors are saying, look at these documents and you’ll see that what was reflected in the 302s is actually what actually happened.
Anne Milgram: Yeah, so there’s a couple of points here. I mean, first of all, what we’re seeing with Flynn is not surprising, in some ways. We see it with people who pleaded guilty and then here he’s changed lawyers and he basically… he was going to be sentenced. Remember the government had recommended no jail time and it was pretty clear the judge was leaning toward jail time. And so the judge basically said, “Wait, do you want to cooperate more? Maybe and we can figure out what your sentence will be.” And Flint had said yes. So it’s clear he’s had time, and now he’s in a position where he fired his first lawyers or they quit. Somehow he has new lawyers and his new lawyers, he’s basically said to fight this, like let’s go back and revisit the guilty plea.
Anne Milgram: There are a couple of points that are important. One is that he hasn’t tried to take back his plea, he wants the judge to dismiss the underlying charges. And the argument is that there was some evidence that as they were working with Flynn to make him a cooperator, they provided him some information related to their investigation. Some of that was given shortly before Flynn pled guilty. I’m using your word there pled instead of pleaded.
Preet Bharara: Because that’s what it is.
Anne Milgram: So there’s really no dispute about a number of these pieces, including that Flynn voluntarily pled guilty. All of it feels to me like there’s really no basis for that allegation. And Flint has not sought to take back his plea yet. And so what this is, is an effort to try to sort of say there’s some problem, the government did something wrong. I’ve heard this a million times when it relates to FBI 302s, not always in the context of a plea, but in the context of a trial where someone says, “My client didn’t say this, the underlying notes would show something else.” Usually you don’t turn them over. This is a unique thing for the government to be like, “Look, let’s just take this issue off the table. Here are the underlying notes. This is what this summary comes out of.”
Preet Bharara: So I guess the final question on some of this new stuff that’s coming out on a rolling basis, but based on what you’ve seen so far, does it affect impeachment?
Anne Milgram: Here’s what I think it does. I think there’s a couple pieces that are important. One, and we talked about this upfront, is just the connection with CrowdStrike and this question of who hacked the DNC emails. And it’s relevant because that’s one of the things Trump is looking for with his call to Zelensky and the pressure he’s putting on the Ukrainian government. And so to me it’s sort of, it’s almost background. There’s nothing that we found in these 302s so far. And again, they’re going to be released for the next eight years, so there may be more coming. There’s nothing in there that I think is evidence of wrongdoing by the president in Ukraine right now. But this gives us a lot of context of where the president’s mindset comes from and why.
Preet Bharara: Now shall we move on to the house?
Anne Milgram: Yes.
Preet Bharara: The house of representatives led by the speaker, Nancy Pelosi, who everyone said, “You should have a vote. You should have a vote. Why don’t you have a vote? There’s an impeachment inquiry already underway. Maybe there should be a vote because it’s happened before where there have been votes.” So what did she do?
Anne Milgram: She had a vote.
Preet Bharara: She had a vote.
Anne Milgram: She had a vote that was pretty interesting. It was to sort of initiate and to set forth the process of impeachment.
Preet Bharara: So let’s talk about some of the things that are interesting in the resolution. Then we’ll talk about what the nature of the vote was, what the numbers were because it’s a mixed bag. One, it’s very clear that lots of committees are involved. I don’t think there’s been an impeachment inquiry where you literally have formally, six different committees who are involved in gathering evidence and doing some stuff.
Anne Milgram: And this is a little different, right, because you and I have been talking a lot about the three main committees that have been doing the work led by the Intelligence Committee.
Preet Bharara: Judiciary, House Oversight and the Intelligence Committee. And apart from those three, there’s a committee on Financial Services, Foreign Affairs and Ways and Means, but what’s clear is the show, the main show, center court as we’ve said before, is the Intelligence Committee-
Anne Milgram: Intelligence Committee, without question.
Preet Bharara: … Adam Schiff. Although it will be interesting to see how this plays out because one of the things that’s required is at the end of the Intelligence Committees work, it is required to submit a report to the Judiciary Committee. And then the Judiciary Committee will hold some kinds of proceedings before articles of impeachment, if they are drawn up, or voted on, in the Judiciary Committee, that will still happen in Judiciary-
Anne Milgram: And then it would go out to the full house of representatives.
Preet Bharara: Right. And there’s a difference between some of the rights and privileges that the president and his lawyers have with respect to the Judiciary Committee, which is later versus what’s happening now and will happen over the next few weeks and months in the Intel Committee. So it’s a little bit more complicated than it’s been before.
Anne Milgram: So here’s how I read it, high level, but I want to, I want to get your feedback on it, which is that they’ve been doing a process in the Intelligence Committee that feels to me like it’s working well, which is they’re calling witnesses in they’re doing interviews behind closed doors, sort of deposition style. The Republican and Democratic members of Congress can be there, and they’re really gathering evidence and they’re figuring out what information people have and whether or not it’s relevant. They’re going to let that keep going.
Anne Milgram: Then they’re going to have the Intelligence Committee at the end of this do a report, which goes to the Judiciary Committee. At that point, the president and the president’s council will be able to be involved in the public hearings. The president can ask for witnesses to be subpoenaed to testify, to be deposed, so there’s some process at that point in Judiciary. Judiciary, will run the public hearings and it’s clear that there will be public hearings, and then at that point the Judiciary Committee will vote and then it will go to the full house to vote, but they sort of preserved this process that seems to be working well, while at the same time putting like a public aspect where the Republicans, one of their big complaints was due process, due process.
Anne Milgram: It’s not legally true that there’s been any violation of process rights, but this is definitely a nod, to me, to give the public a sense of here’s how we’re doing it, here’s how it works, here’s the voice that everybody gets to have and it’s not going to be one sided for long. This is just right now a fact finding mission and then we’re going to turn to a different process.
Preet Bharara: In my view, it hasn’t been one side at all. You know there’s a privilege you get from being in the majority. Right? For large periods of time under the Obama administration, the Republicans were in the majority. I worked in the United States Senate half of my time in the minority, half of my time in the majority. When I was in the minority, my boss, Senator Schumer could not hold a hearing on anything he wanted. He could not get a witness necessarily if he wanted. It was all done by the chair of the Judiciary Committee or the chair of the subcommittee.
Preet Bharara: When we became members of the majority, then we call the shot. That’s true in Benghazi. That’s true of the US attorney firings. That will be true here. That’s been true of all the prior impeachments as well. They just have a little less ability to guide things because they’re in the minority. My favorite part of all of this is something we’ve talked about before, but we should spend a little more time on it now that we’ve seen the parameters in the house resolution.
Preet Bharara: I think we’ll generate some light, not just heat going forward because one provision of the resolution allows for lengthy questioning, not five minute, you know, quick circus like questioning, the lengthy questioning up to 90 minutes at either the start of the hearing or throughout on the part of only the chair Adam Schiff and the vice chair Devin Nunez. And on top of that, both of them can delegate questioning to a member of the staff of the Intelligence Committee and I’ll make a prediction. You ready for my prediction?
Anne Milgram: I’m Ready.
Preet Bharara: There’s a gentleman named Dan Goldman who is about to become a household name. And Dan Goldman is a former assistant US attorney in the Southern District of New York. Worked for me, did a lot of securities cases and before that he was one of the supervisors of the organized crime unit. You may have seen him as a commentator once he left that office on MSNBC.
Anne Milgram: I did a panel with him for the Brennan center once.
Preet Bharara: Smart, tough, will ask a lot of good questions.
Anne Milgram: Great lawyer.
Preet Bharara: And I expect that you’ll see him as the lead lawyer for Adam Schiff, asking a lot of questions. I think Schiff himself as a former AOSA has as a decent ability to ask questions, is very at it, so I don’t know how much they’ll share that, but in the same way we saw Barry Burke do it with Corey Lewandowski at the end of a long hearing, you’re going to start seeing some of that at the beginning of a hearing before they go back to the five minute circus.
Anne Milgram: I could not agree more that I think this is one of the most important things to come out, which is that right now they’ve said each side, so the chair of the committee and the ranking member of the committee will each get up to 45 minutes to do this. And again, it’s so important for being able to get momentum and to pursue a line of inquiry that otherwise, within five minutes witnesses can stall. They cannot answer questions and it’s really hard to get any information out. That’s a problem when you’re talking about these kinds of hearings where you’ve got to get evidence out, you’ve got to give the American public information. You don’t want it to be all partisan speechifying
Preet Bharara: So what you’ll have is, I mean, you can imagine that on important hearings, the first 45 minutes will be chairman Schiff and or Dan Goldman or someone else on the staff asking a series of questions, getting a lot of testimony elicited, telling a clear story where there will be, probably the best of the things that that witness is going to say. You know why? Beause they have the benefit, in most cases, of having taken many hours of deposition testimony from that witness. So they can go in, in a targeted way and do all the highlights in 45 minutes, then take a break, and then the other side goes. A lot of the sentiment that will, I think, attach to these hearings and what the witnesses are saying will be molded by what happens there. As opposed to a confusing ping pong battle that normally happens.
Anne Milgram: Can I ask two questions about what happened last week that I’ve been mulling over? The first is that we’ve been talking a lot about will Pelosi call vote, will she call vote, when will she call a vote. Is it a coincidence that she called it the same week as Lieutenant Colonel Vindman’s testimony went before the house? What do you think made her do it last week?
Preet Bharara: I don’t know. I had some difference of opinion with folks including George Conway a few weeks ago. I thought all along it made sense for her to have a vote to take away the talking point, and to be consistent with, not that you have to, but to be consistent with the prior three times, Johnson, Nixon, and Clinton, where there was some vote to make clear what the process was going to be. My guess is all along she was thinking in the back of her head about having such a vote. Maybe they wanted to get a good amount of evidence squared away and reach a critical mass of information before they started making things public. It’s a pretty short period of time.
Anne Milgram: A month and a week. They’ve moved very quickly. It’s clear to me that they didn’t come up with this entire process plan in a day. It’s very complicated and it’s clearly well thought through. I don’t think it was just they heard Vindman and they decided to drop it. There was something about Vindman’s testimony and we’ll talk about him, I know, later, where he’s on the call. He personally raises red flags at the time. He believes there’s a quid pro quo. There was something that pulled together a lot of the different threads that we’ve been hearing during these inquiries, or at least that’s becoming public that I thought was really powerful. I thought her timing was actually pretty good.
Preet Bharara: I mean here’s the other thing that may have been going on, I don’t know. As we said, there’s a lot of jockeying within a caucus. It may have taken some time. I think that you make an excellent point. It may take a few weeks to negotiate between and among the various chairs who are all constituents of hers to see, well, is everyone going to be okay with Adam Schiff taking the lead. Is Jerry Nadler going to be upset? What about these other committees? You negotiate that. Sometimes even within your own caucus you got to figure out what is going on there.
Anne Milgram: Jerry Nadler’s the chair of the judiciary committee, so he’ll get his day. I agree with you. It’s important that Schiff who heads intelligence, he’s definitely been given the leadership role. He’s had it and they’ve cemented that for the investigation.
Preet Bharara: I mean the thing that Nancy Pelosi does is she keeps her troops in line.
Anne Milgram: And she counts votes.
Preet Bharara: And she counts votes. As late as the morning of or the day before the vote was held, I believe Kellyanne Conway went on television and said, “Well, I don’t know. Maybe Nancy doesn’t have the votes.” Of course, she does.
Anne Milgram: Here’s my second question for you, which is I’ve been thinking a lot about this. The Republican pushback of the entire inquiry, it’s changed on the substance. Their defenses have changed a lot.
Preet Bharara: Multiple times.
Anne Milgram: Multiple times, but the one thing that they’ve really stayed true to and pushed hard was this process issue of the process isn’t fair. We don’t like the process. There’s due process problems. Now, I think you and I agree that there’s actually no legal process issue here. I’m very supportive of Pelosi coming out and saying, “Here’s the process,” so everybody knows it and understands that it’s completely transparent. The Republicans are still arguing process. We both predicted this would happen, which is like the classic bully. You give them half your lunch, they eat the other half. They’re never going to stop arguing process.
Anne Milgram: Here’s my question for you, I think process is an issue for courts not for juries. My experience is the following, that people litigate process all the time. The police didn’t seize my evidence correctly, and those types of things happen in courts of law because judges understand what the law is, what the process should be. When the process has been violated, courts are quick to basically say, “No. There has to be a process.” When it comes to the actual substance, people want to know what the substance is. Did someone steal the loaf of bread?
Anne Milgram: They’re less worried about, well, who recovered that loaf of bread by the side of the road and could it have been done better? Again, I’m not saying process doesn’t matter enormously. The people who sit on juries and the American public ultimately when they sit in judgment I think are going to worry more about the substance than the process. What do you say?
Preet Bharara: I have two reactions to that. One, you’re absolutely right that process generally doesn’t matter so long as the process was generally fair. The government can argue, “Look, this is how we did it. Maybe the chain of custody, as we like to talk about it in court, was not perfect, but here’s the affidavit showing. The cocaine was transferred in this way. Maybe we lost a document, but here’s why we lost the document.” If it’s generally deemed to be fair, the argument doesn’t work.
Preet Bharara: On the other hand, if there’s an egregious flouting of process, if someone believes that there was a particular person brought before the jury whose rights were violated in a very serious way even though it’s been adjudicated before, because you’re allowed to relitigate that. The way the cop came up to them, how early in the morning it was, if they yelled, if they threatened violence, all those kinds of things can make a difference.
Preet Bharara: My second point is, which we’ll be talking about a lot, a distinction between a juror in a regular criminal trial and the putative jurors you have here who are United States senators. By my count I think there’s six senators. I wrote about this in my note last week, comparing it to the scene from Glengarry Glen Ross. In a real criminal trial, every single senator would be struck for cause, because-
Anne Milgram: That’s true.
Preet Bharara: … they are all on one side or the other. They violate all the principles of what a neutral jury should be. They have looked at the evidence. They have prejudged it in many cases.
Anne Milgram: They can’t keep an open mind.
Preet Bharara: They will look at the press. They will follow the press every day very closely before they’re asked to sit in judgment on it. They’ve taken positions on the president. Six of them are running against the President of the United States. There’s a deep personal interest in whether or not Donald Trump gets impeached or not impeached or convicted or not convict-
Anne Milgram: You want to strike them for because, or use a peremptory challenge.
Preet Bharara: They’d all be struck. We should have no illusions that this is, not withstanding the somber intoning of some senators trying to avoid answering the question, “Well, I may sit in judgment on this. I’m a juror.” You’re not. It’s a different process.
Anne Milgram: I agree completely. I think to me the bigger question is the American public, because I think ultimately members of Congress work for us. This is a very helpful conversation also, because I do feel strongly about setting out the process and having it be clear. I think to your point, it really does in many ways take the issue off the table what Pelosi has done, because she’s made it clear of here are the rules. We’re being fair to both sides. The president gets to come in and have some involvement in the judiciary committee, and then obviously in the full trial. Now it’s clear that there’s a process to be followed. I think that’s really important. To your point, the senators, when I think about the jury, I’m thinking about the American public understanding what’s-
Preet Bharara: Public opinion.
Anne Milgram: … happening versus the senators, and you’re right about them.
Preet Bharara: Central to that is another point that we’ll probably be making a lot, and that is on any issue that exists in the world no matter how clear you think it is there’s an argument that can be made. That can be of a high quality or that could be of a very low quality. The argument about process was of a certain quality before Nancy Pelosi had the vote. They’re continuing to make the argument and saying, “It’s fruit of the poisonous tree. It continues to be unfair.” It is now a less good argument.
Preet Bharara: I’ll give you an example of arguments that could be made no matter what the facts are, and they don’t have to be credited and they would be credited by fewer people the stupider the argument is. One other thing that’s happening as early as today is some of these behind-closed-door deposition transcripts are going to be released. I think maybe a couple today and probably over the next number of days. They probably will be devastating to the president’s case and to the president’s allies.
Preet Bharara: What Donald Trump is now setting up through tweets and otherwise is an argument that Adam Schiff is going to be doctoring those transcripts and they’re not going to be the right transcripts. He’s setting in motion a belief among his allies that Adam Schiff is a liar and will change the transcripts. Which I find incredibly ironic, there’s a lot of irony here, given that the one argument Donald Trump has been making about the transcript or the supposed transcript of the call between him and Zelensky is, “It’s a verbatim transcript, just read the transcript.” Literally the document says at the top-
Anne Milgram: It is not a transcript.
Preet Bharara: … “This is not a verbatim transcript.” Truth means nothing to Donald Trump. It means nothing to his allies.
Anne Milgram: Here’s what’s important about the committee hearings, these will be transcripts. This is important to note.
Preet Bharara: We’ll all see it.
Anne Milgram: We’ll all see it. What happens with the conversation between Trump and Zelensky is that they have some person. I mean you and I just went through this process, because I think it’s incredible for both of us to believe that there’s no actual voice recording of the call, which it turns out there isn’t. Instead, there’s somebody who’s saying what Trump has said into voice recognition software, which we’ve all used. Obviously Siri never gets it right at least for me. Then there’s someone saying what the other person on the line is saying. Then there are lots of people who’ve taken notes. They’re fixing and creating this memorandum based on that. That call is definitely not a transcript. These committee hearings, there’s a process for transcribing witnesses. These are reliable as transcripts. They’re real transcripts. You’re right to point out-
Preet Bharara: There are court reporters and there are other people there.
Anne Milgram: You make a good point, which is that the truth is not of concern to the president. It’s his ability to basically say, “You can trust me and my memorandum of the call, but that other stuff is shifty Adam Schiff. Don’t trust any of it.” He’s trying to draw this line and it’s not credible. He plays offense constantly, and everyone should be on the look out for this that we’re about to enter this time period where every day he’s going to be playing offense on something to try to not play defense on this, and to try to distract from it.
Preet Bharara: At the end of the day, sometimes there’s devastating proof. You can always argue with lesser ability even if there’s videotape evidence and a confession and wiretaps that show guilt beyond a reasonable doubt, the last refuge is always to say, “Well, that’s doctored. That’s fake.”
Anne Milgram: We were just talking about it with the 302s.
Preet Bharara: For another day, deep fakes [crosstalk 00:29:00] talk about.
Anne Milgram: We were just talking about this with the FBI 302s. I’ve heard it a million times in trials. The last defense is often, “They made it up to prove guilt.”
Preet Bharara: By the way, on top of all that it’s the general practice, I presume it’s done here for this very reason, that witnesses get to come back. In depositions, I took and that I oversaw and that I defended also, the witness gets a transcript of the testimony and has an opportunity to suggest changes if it thinks it doesn’t reflect the actual testimony.
Anne Milgram: That’s right. That’s really important. Here’s one other thing that’s also important, which is that you have both Democratic and Republican lawmakers who are sitting in the room. If they don’t think it’s accurate, they can also speak out. The idea that what’s going to be released will not be accurate is not going to be true.
Preet Bharara: We already know from reporting that Ambassador Gordon Sondland has returned to a committee room to review some of his testimony, potentially to alter it. Can I tell a quick story?
Anne Milgram: Yeah. Please.
Preet Bharara: When I was overseeing an investigation of politicization of the Justice Department when I was in the senate, there was one witness who testified for many, many hours on a Sunday, and then came back with his lawyer and reviewed the testimony and before we concluded the testimony, I think I asked, are there any changes you want to make? Or maybe his lawyer interrupted and said, you know, before we conclude, my client wants to make one amendment to his testimony.
Anne Milgram: Okay.
Preet Bharara: You’ll appreciate this. Time and time again the witness said, I don’t recall. One reason you say you don’t recall is because you don’t recall. Another reason is it’s a little bit harder to be hit up on perjury because it’s hard to prove you didn’t know as opposed to saying a flat yes or no to a question. And there’s one spot in the transcript that the lawyer and the client had found on page 300 something of the transcript. He says with respect to line seven on page 226 where the witness said no, what he meant to say was, I don’t recall. It was the one time… and then usually you sign at the end of the transcript and that denotes your happiness with and comfort with the transcript.
Anne Milgram: Yeah. I never liked the do not recall for what it’s worth. I used to tell the officers and agents who testified for me, like that’s not how people talk. Like when your wife says, did you remember to get the milk? You don’t say I don’t recall. You did or you didn’t or I forgot, right?
Preet Bharara: Say oh damn, I forgot.
Anne Milgram: Yeah, exactly. So I am always on alert for that language.
Preet Bharara: Or if you’re maybe in the Trump house, you say, yeah, it’s in the fridge. Then looks in the fridge. No, that’s milk. Adam Schiff altered the label.
Anne Milgram: Exactly.
Preet Bharara: Should we talk about the nature of the vote? The numbers.
Anne Milgram: Yeah, let’s talk about.
Preet Bharara: So the vote occurred and it’s 232 to 196.
Anne Milgram: Largely party line with two exceptions.
Preet Bharara: Largely. I mean, no Republican voted to proceed on this resolution. You have one now independent, former Republican Justin Amash who voted with the Democrats and you have two Democrats who voted against it. Now if you go back in history to the extent precedents matter and they don’t matter as much as they do in some other cases because there’s so few of them. You know impeachments are like fingerprints and snowflakes. They’re all unique. No two-
Anne Milgram: Yes, I like that actually. I like that.
Preet Bharara: Right. No two are alike. But look, there has been a tradition of more bipartisanship at this phase. It’s not the end, there’s still taking testimony and more evidence of being brought to bear. But for example, in Johnson’s day, most people voted in favor of proceeding. But more specifically with respect to Nixon, so much water had gone under the bridge. The vote was 410 to four.
Anne Milgram: Right.
Preet Bharara: And with Clinton it was a little bit closer. The vote was 258 to 176 and that included 31 Democrats, members of the president’s own party, voted in favor of the inquiry. Do you have any reaction to how lopsided this vote was?
Anne Milgram: Yeah, so I wasn’t surprised by it. And I think that’s a sad commentary on the world we live in. What we’ve seen here, and what I would go back to is that immediately upon release of the memorandum of the transcript, the human reaction… forget political party for a second, but the human reaction should have been, wow, that’s bad. Right? And I don’t care what political party you are, whether you’re a lawyer or not, that kind of conduct should not be acceptable.
Preet Bharara: You don’t think it’s perfect.
Anne Milgram: No, I don’t think it’s perfect and I don’t think we should normalize it. The president immediately came out and said, you know, for the same reason he released it, he thought it was fine. He said it’s perfect and the wagons were circled before any other information came out. And we’ve seen this incredible doubling down of this argument of there’s no quid pro quo in the call, which of course is irrelevant if there’s quid pro quos throughout.
Anne Milgram: And you and I both agree there doesn’t even need to be a quid pro quo here, but it’s really like they’ve circled the wagon in a way that it’s a sad commentary that even as sort of short ago as the 1990s under the Clinton impeachment, there was more of a general view of there’s conduct that is correct for a president to engage in and there’s conduct that is incorrect. And for people being willing to sort of have an inquiry and to reserve judgment even until the evidence and the facts come out, we have not seen any of that here. So surprising? No. Disappointing? I think yes.
Preet Bharara: So my view is to the extent people can be presumed to be voting their conscience and can be presumed to be basing their vote on the evidence that’s before them and on what proper conduct is and how President Trump’s conduct varies with what appropriate conduct would be, to the extent everyone is acting in good faith and you have this vote, then I think it’s bad. I think it’s bad for the country.
Anne Milgram: Do you think everyone’s acting in good faith?
Preet Bharara: So I don’t, and I think that the main difference here between this and other instances, and this is my personal view, is the level of political fear people have because they see how Donald Trump can weaponize his Twitter account and how venomous he can be towards anyone who moves away from the flock. I think I’ve seen some people off the record or without attribution use these kinds of metaphors. You don’t want to be the zebra that wanders from the flock. At some point people sometimes have been predicting you’re either going to get no one who disassociates from Trump, you know, no one who wanders away or you’re going to get a huge bunch of folks all at the same time.
Anne Milgram: Right. So let me ask you this, because I was with some folks this weekend. I was out in the Midwest last week. I was traveling, I was in a few different places and I had these conversations all over and there are sort of two groups of thought out there. One is this is important for the country. This is important for democracy and the process is going to go forward. And if there’s sufficient evidence, we hope that that evidence would sway the public and ultimately the US Senate. It doesn’t mean the president is ultimately… I believe he will be impeached.
Anne Milgram: It doesn’t mean he’s removed, but that this process is important and has to go forward. And let’s not prejudge the impact that hearings and a trial will have on the American public. Then there’s this other view of the world, which is the President may be impeached but he will never be removed. So there’s no impact at all that judiciary committee hearings or a public trial will have because the feeling of the Republican party that they have to double down behind the President and so we shouldn’t be doing this. It’s sort of the conclusion that comes out of that.
Preet Bharara: That’s sort of silly to me because the one thing that is missing from analysis along those lines is separate and apart from whether or not there’s an impeachment or there is a conviction at trial in the Senate. The fact that they are undertaking this obligation and they’re having these hearings and they’re taking these depositions and they’re taking actions such that there are people who otherwise would not have come forward. There’s all this information that’s now in the public domain about the President’s conduct. And so when people try to separate this from the election and say, well, you’re trying to undo an election and you try to because him not to be on the ballot in the next election, I’m not sure why that’s a bad thing. To the extent that you know there’s oversight that taking place like you would have in the Bhangazi hearing or anything else that when people are in power they think is important to pursue.
Preet Bharara: You were airing out lots and lots of things that the President did and the public can decide. And whether it has an ultimate final dispositive impact on the Senate trial is one thing, but it is information that I think the public is entitled to and should understand about their president and should understand when they’re making their calculation about who to vote for if he’s still in a position to be voted for, what is he going to do in the second term when he’s not worried about reelection and when he’s already skated past impeachment and removal? This is vitally important and most of the testimony is coming from people who were handpicked by his administration and under great threat of reputational attack and job displacement and everything else are coming forward and saying these things. And these things would not be happening unless there was an impeachment inquiry.
Anne Milgram: Yeah, I agree completely and I think that this isn’t the first time our country has been put under this type of strain, right? Which is we get a decision about what kind of country we live in. We’ve chosen a democracy and a constitutional form of government where we live by separation of powers and it’s really important to have this inquiry, in my view, take place. It’s also really important for the following reason because what the President has put forward is an idea that he has complete immunity.
Anne Milgram: The people around him have complete immunity and that he doesn’t even need to answer questions by Congress. And so he would like to create, whether it’s a monarchy, authoritarian regime, whatever we want to call it, there’s something that Congress is doing here that’s vitally important and if it doesn’t happen, we no longer live in the type of constitutional Republic that we all believe we live in and want to live in. And so there’s huge value in my mind as well for this. But I think it’s just important for us to understand and acknowledge that there are lots of people out there who are just seeing this through a different lens. And I think it’s important to remember why we do what we do in the US government.
Preet Bharara: So there was a bunch of testimony last week, including from Alexander Vindman, who worked for the National Security Council and showed up in full military uniform.
Anne Milgram: Military uniform. He’s a very decorated war hero as well.
Preet Bharara: Purple heart. Happens to be an immigrant, came to this country from the former Soviet Union, specifically Ukraine.
Anne Milgram: When he was three and a half.
Preet Bharara: When he was three and a half and he, like a lot of other witnesses, sets forth at the beginning of his opening statement his dedication to the country and his public service and his in his brave service. Doesn’t stop him from being attacked as someone who potentially is sympathetic to Ukraine. And John Yoo, who we don’t have enough time and I don’t want to waste the energy and breath on that guy.
Anne Milgram: To discredit him fully. Yeah.
Preet Bharara: Who appears still to be a tenured professor somewhere. I don’t really talk about this often about people. He gets on television and casually accuses Vindman of espionage.
Anne Milgram: It was outrageous.
Preet Bharara: This is the torture memo author. So take that for what it’s worth.
John Yoo: Some people might call that espionage, but it doesn’t actually seem to add any new facts to what we know. If in terms of… I think Alan raises a good point. Is this a high crime and misdemeanor? Whether you have one person or five people all saying, well, we objected to what the President said with the president of Ukraine. We have the transcript of the call. We can all make our judgment. I don’t see how this breaking news actually adds more facts to what we know about whether this is an impeachable offense or not.
Anne Milgram: Just to highlight this for a minute, when Vindman in his opening statement, he says, I have dedicated my entire professional life to the United States of America for more than two decades. It has been my honor to serve as an officer in the United States Army. And he goes on to talk about having done multiple overseas tours, deployment in Iraq and he was wounded in an IED attack, for which he got the purple heart. And then he goes on to talk about the fact that his family lived the American dream and that that’s why he gives back. They had very hard times when they immigrated here, they worked hard, and he’s been fortunate enough to be in this position to serve as government.
Anne Milgram: So I think it’s just really important to note that this isn’t a political partisan. This is someone who comes in with the best interest of the United States at heart. The attack was something I think you and I would have predicted because his testimony is devastating, in my view, to the president. And so all these personal attacks, which were beyond absurd, they come because they have to try to find a way to discredit him because of the fact that Vindman was on the National Security Council.
Anne Milgram: He’s on the call between Trump and Zelensky. He’s in this meeting with Sondland, when Ambassador Gordon Sondland and John Bolton’s former deputy Fiona Hill are in this meeting. Where the first part Bolton is very upset that Sondland is bringing up Ukraine and investigations. Bolton ends the meeting according to Fiona Hill’s testimony. The meeting then continues on in a separate spot. Remember Bolton sends Fiona Hill down to basically say, “Tell them this is inappropriate.” Sondland raises the investigations again with the Ukrainians. Vindman is uncomfortable with that and Fiona Hill says it’s inappropriate.
Anne Milgram: So what’s really important about this is that, this isn’t a spin now looking back to July and August and September, something inappropriate happened. At that moment in time, at that very second, you have the highest level diplomats, you have the highest level military officers who are saying, “This is wrong. It has to stop.” And so to me, Vindman, he’s the guy in the room, he hears it all, and at the very moment in time he calls the shot, “This is wrong.”
Preet Bharara: And that’s an incredibly important point you make. That his conduct happened before there was an impeachment inquiry, before Adam Schiff knew about the whistleblower, before any of this was happening, he was acting in good conscience then. Two more points. One is, he’s firsthand. We keep hearing about the whistleblower, secondhand, secondhand. Oh, it’s just secondhand, Lindsey Graham, secondhand. That’s not good. That’s not good enough. Now, “Hey, what about this guy? He has firsthand evidence.” Well he must be a trader.
Preet Bharara: The last point I would make, just to be clear, and so people don’t get the wrong impression from what at least I’m saying, just because you’re a decorated military official doesn’t mean you are on a pedestal and that you have a halo over your head, and you can’t be doing bad things, and you can’t be lying. Witness, for example, Michael Flynn. All I think we’re trying to get across is there is a baseline presumption when you’re talking about someone like that without other evidence and who seems to be acting in good faith and in good conscience and not politically behind the scenes, and was only outed for this conduct because there is a galloping impeachment inquiry taking place. Then I think the military service you pay some respect to. And you don’t so casually accuse such a person of espionage. But I just want to make clear nobody thinks that anybody who wears a uniform and says something against Trump is okay, and if you wear a uniform, and you testify against Trump, then you must be bad.
Anne Milgram: Right. I agree with you. It’s worth noting, what I think is really important about the military service for years is the following, he’s served presidents of both parties. And that’s the way it should work and that’s the way it does work in our country. And so to immediately throw this, “He’s a political hack, or he was born in the Ukraine, the former Soviet union, so he’s somehow a spy,” it’s really base, and it’s really below the level of discourse that we should be having in our country. So it’s not so much that I think you and I are trying to bolster him so much as I would like to discredit this idea that he walks in a room and all of a sudden he’s a Never Trumper and a partisan hack, who by the way has served the United States military and been injured on our behalf in a war.
Anne Milgram: The thing I don’t like about some of this, and the John U piece included, is that Trump is trying to frame the arguments as always, right? The person who frames the issues wins, and he’s trying to frame this about patriotism and about people who are embedded in these institutions of government who are against him. And so I feel very strongly that we both have to change the conversation, but we also have to not allow that to happen. There’s two other pieces that I think are noteworthy about Vindman also. One is that he specifically says that they’re asking, and the president is asking for investigations into the 2016 election Burisma and the Bidens. And that’s really important because those things were made explicit. It’s not just into corruption and Ukraine, which is what the president, and the administration has been charging. It’s really very explicitly these things.
Anne Milgram: The second point is that, and I think it’s interesting, and we don’t have to spend too much time on it, but I’d love to hear what you think, is that Vindman basically says, “I listened to that call. Zelensky talks about Burisma specifically,” and that is scrubbed from the ultimate memorandum. Instead, there’s like nine other words put in about, “We will look into those matters you raise,” type of thing. But more to the point on this is, not only does Vindman say, “There was a problem with the memo,” but, “I went to the lawyer for the National Security Council in the White House and told him, ‘This is wrong and there’s a problem.'” And that’s what leads Eisenberg, the lawyer who was supposed to testify this week, I don’t believe we will see him testify, but that leads him then to move the memorandum from the normal server where it would be, into this confidential password protected server.
Preet Bharara: And not only that. The reporting is that the lawyer also told Vindman never to talk about this. Which I think is a good segue to another bit of testimony that contrasts with Vindman, and probably a little bit of good news for the Trump folks, and that happens in cases like this, not everyone has the same recollection or the same reaction to events. There’s a guy named Tim Morrison, also works at the NSC, who is one of the people who had great concern about this conversation with Zelensky. And the White House is touting this person’s testimony, which by the way corroborates in substance, like the facts and the narrative and the timeline, that the other witnesses have in every significant aspect.
Anne Milgram: He agrees with everything except the takeaway.
Preet Bharara: There’s two things he says that the Trump folks are pushing, and so we should talk about it. One is, he says, based on his recollection, that the readout of the call between Trump and Zelensky is complete and accurate. So that’s a little bit at odds with what Vindman says about Burisma being scrubbed. So we’re probably never going to get to the bottom of that because our understanding is there’s no tape recording and there’s no fuller transcript. What we’ve been given is the best that exists.
Preet Bharara: But that’s a little bit helpful. If there was a trial you would put that witness on for your side, and you would say, “Well, someone else disagrees.” These things are decided on the weight of the evidence. So four more people come forward and say, “Burisma was discussed, and it was scrubbed.” And one person said, “It wasn’t.” The weight of the evidence is on one side of that point. And the second thing, take it for what it’s worth, that this particular official, Morrison says, he didn’t think the president had done anything illegal in connection with asking for an investigation seemingly in exchange for aid, or a meeting with the White House.
Anne Milgram: Yes, [crosstalk 00:46:42] but what did he do.
Preet Bharara: That’s good politically. Look, it’s an argument. And I know a lot of people say, “Well, it’s nothing, doesn’t mean anything.” Yeah, in a court of law, everyone is absolutely correct that what is important for witnesses to testify to are the facts and what happened. And the issue of whether it was illegal or not or impeachable or not is a legal question, and we don’t allow fact witnesses, people should understand, to opine on the legal conclusion. That’s what the jury is there for, and that’s what the judge is there for.
Preet Bharara: So it’s fine and well for everyone to poo-poo that and say, “Well, that’s his view.” You could have somebody who’s just as corrupt as the bad guy saying, “Look, when the guy went and took the money out of the bank, he thought it was his money even though he used a gun, I didn’t think it was illegal.” In that extreme context it doesn’t matter a wit what that witness says. But because this is a little bit of a political process, it’s helpful to the president’s side.
Anne Milgram: I agree. Here’s how I see it. I agree completely. I mean, it’s important that he agrees with the facts. It’s also important that he corroborates something that Dr. Fiona Hill, when she’s leaving her position overseeing the Russia sort of part of the National Security Portfolio at the White House, she’s leaving, briefs him on what’s happening and that she’s troubled by it. And so he testifies to that. So that’s very important that when he comes in, he’s given notice that there’s a thing happening.
Anne Milgram: He says, quote, “She informed me of her concerns about two Ukraine processes that were occurring, and there’s the normal process. And then there’s a separate process that involves Gordon Sondland and President Trump’s personal lawyer, Rudy Giuliani. That they’re trying to get Zelensky to reopen Ukrainian investigations into Burisma.” So again, it’s corroborating that at this moment in time, there is something that the president and Giuliani and Sondland, that there’s this quote “official effort going on” to try to get this to happen. So I think any question that this was going on is going to largely be defeated now by the volume of evidence we have of insiders saying it.
Anne Milgram: But here’s the thing that I was most focused on with Morrison, which is that he says he listened to the call as it occurred. He’s in the situation room in the White House and he’s listening to the call. So he says, “And my take was that nothing illegal was discussed.” But if that were true, in my view, he wouldn’t have done anything then.
Preet Bharara: Well, he says he’s concerned about leaks.
Anne Milgram: Right. So his argument is that I go to the National Security Council lawyer because I’m so worried that it might leak and that in this highly politicized environment, someone might get the wrong impression. Why? Because he knew what was happening. To me-
Preet Bharara: Because it looks terrible.
Anne Milgram: … I would love to cross this guy, right? So you didn’t think anything was wrong, but you went to the lawyer piece after piece. And this idea of, “I’m worried about leaks.” Well, if nothing happened that was illegal or was wrong, then every single day in America, and in that White House, any White House, Democrat or Republican, there are things that you wouldn’t want to leak out. You don’t hide memos because of that, right? You don’t take an extraordinary-
Preet Bharara: No, but there’s a lot of inconsistency there. And I would, by the way, also love to see you cross Mr. Morrison.
Anne Milgram: I’ll settle for Dan Goldman. He’s an excellent lawyer. But there’s so much here of the like, “Yeah, all the facts are right, but their conclusion’s completely wrong,” which would be fine but for the fact his actions are completely consistent with someone who knows that something bad has just happened.
Preet Bharara: Right. Look, you can make the argument that it’s not illegal, and people will make that argument, it’s not a slam dunk that it’s illegal. I tend to think it is given all the evidence, I want to see more evidence. It is much harder to argue that it’s not appropriate, and also hard to argue that it’s not impeachable. The limited point I’m making going forward for people who are trying to evaluate the consistency in the intelligence of arguments being made on either side is just this, right, so there’s some consistency.
Preet Bharara: The pro impeachment people, if you’re going to go around and say the moment that some witness, a fact witness says, “What I observed I thought was illegal and unlawful and it shouldn’t have happened.” And you immediately promote that testimony and you tout it and you say, “Well, here’s the smoking gun because this fact witness is making the legal conclusion that I like and I want to agree with.” It’s a little bit harder for you to poo poo another fact witnesses making a legal conclusion to the contrary, that’s all.
Anne Milgram: Look at the end of the day we’re going to be able to do a chart, which is what witnesses tell us what, who contradicts who and no one should expect that there won’t be witnesses who contradict one another. It’s not true in any case, even where people don’t have political concerns about Morrison works for the president, even where you had a witness who didn’t have a political concern, people do often contradict one another on parts.
Preet Bharara: I’m just recalling something that Pat Fitzgerald, former colleague, former U.S, Attorney in the Northern district of Illinois…
Anne Milgram: Who did the Valerie Plame investigation also.
Preet Bharara: Yeah. And many others, and Bill Goyovich too. And he, when he was on the podcast talking about how you prepare witnesses for testimony, you can have two witnesses for the prosecution, both of whom have seen a murder or a robbery or something else. And they agree with each other on all basic points. But the dilemma is for I think a junior prosecutor, well, one person thinks the bad guy was wearing a blue hat and the other one thinks the bad guy was wearing a green hat. And you have to resist the temptation to harmonize that and to beat up the one witness that you think maybe is more forgetful. You sure it wasn’t a green hat? Are you sure it wasn’t green hat?
Preet Bharara: It was a green hat, wasn’t it? Oh, and let’s say you have surveillance, so you as a prosecution know that it was a green hat, but this guy insists it was a blue hat. That’s just life. That’s why it’s difficult sometimes to be a prosecutor to make your case. You can’t get the person to, in good faith, though change their testimony. That’s what they recall. People’s recollections are imperfect. They remember that the guy was stabbed where the money was taken from the bank, but they got the hat color wrong.
Anne Milgram: Or the penguin was stolen.
Preet Bharara: Or the penguin was stolen. My favorite example, and so you just, you argue to the jury and some people might not buy it and they’ll think, well, they should’ve had a perfect, we call it that, and that will happen here too. People should appreciate that.
Anne Milgram: Yes. Even the ambassador to the EU, Gordon Sondland is a good example where I think a lot of people were quick to embrace parts of his testimony that they thought supported the narrative that the president had abused his authority. Whereas it was very clear that in my view, at least Sondland wasn’t being completely truthful. And so I think it’s important to say like, yeah, okay. He said some things that are consistent with what other witnesses have said, but he’s also said things that don’t make any sense for someone in his position taking the actions he’s taking. And we have to be critical of that as well. And so, he’s an easy example because his testimony has now been contradicted by a number of other folks, but it’s still to the point of, you can’t just pick and choose what’s consistent with the narrative that you want to tell. And I agree with you,
Preet Bharara: The world heavyweight champion of that approach is Donald Trump. I’ve joked, I would love to see him represent himself in a trial and then see what the, you know what the other side says.
Anne Milgram: Do you think I could do dramatic readings of all his openings and closing statements?
Preet Bharara: Oh my gosh, we’ll have to go three times a week in that case. But he’ll literally, he’ll take, and you see him do it in nonlegal settings too. Someone will say a hundred things and he hates that person and despises that person and says they’re a liar over and over again. Embedded in the a hundred things is one thing that’s favorable to the present. Well I’m glad he told the truth on that one thing, even though that person’s a liar and a cheat, he does the same thing with Fox.
Preet Bharara: He does the same thing with New York times. Literally every argument he makes is never on principle because you look at the quantity of arguments he makes. It’s always based on whether or not it’s favorable to him or not favorable to him and by never conceding ever. If you were actually to appear as an advocate in any court, were you able to maintain his bar license for more than five minutes? He’d be laughed at according to be defeated every time because he takes this approach. It may work with some portion of the electorate.
Anne Milgram: Yeah, definitely.
Preet Bharara: There’s all sorts of other things going on. I think the pace by the way, we should comment on the pace of things. It’s pretty amazing how much testimony has been taken, how quickly things are happening. There are a bunch of witnesses who chose not to show up today, so some witnesses have come in defiance of the White House. Some witnesses are acceding to the will of the white house. Some other witnesses are waiting for the court to advise them what to do.
Anne Milgram: Yes, that’s right.
Preet Bharara: But the pace is going to increase even more dramatically now. So because now simultaneously you’re going to have new hearings taking place, some behind closed doors, voluminous deposition transcripts being released. That everyone will be pouring through and then we’re on the cusp of public hearings, so there’s going to be a mass overload. So by the way, keep tuning in because we have a lot…
Anne Milgram: There’s going to be a lot to cover.
Preet Bharara: A lot going on.
Anne Milgram: And I agree with your point of they have a lot of witnesses who are under subpoena. They’re trying to get as much evidence in as they can. What we’re seeing today, a number of White House witnesses are not going to show up for testimony that’s happening while some others, including Don McGahn and Kupperman who had been one of John Bolton’s deputies. They’re litigating in a court whether or not they have to appear. And so I think we’re going to see a lot unfold over the next couple of weeks. More witness testimony as well.
Preet Bharara: So it’s interesting to see everyone’s turnaround. This is true of Democrats too. You know a lot of people I’ve been seeing them come on television, they’re are played tapes of what they said during Clinton and it’s a little bit hard for them to distinguish. Some things are distinguishable, some things are not. Now, Susan Glasser has said, by the way, she was a college classmate of mine, now writes for the new Yorker. I’m paraphrasing, can we all stipulate then on the issues of process in Congress, politicians are not consistent and they’re kind of hypocritical and they tend to favor the process that favors their side and you see that over and over again.
Preet Bharara: But every once in a while something kinds of throws you back on your heels. When you see, and one of the great things about Twitter is this is sometimes where you learn these things. And in the last week, the senior editor for politics of the Atlantic, Yoni Applebaum said on Twitter, “I want to share one strongly argued case for impeachment from a leading constitutional scholar that I stumbled across the other day.”
Anne Milgram: The president’s defenders describe the unthinkable disaster of impeachment, but it should not be on thinkable. The framers of the constitution did not see impeachment as a doomsday scenario. They thought it necessary to remove bad men. I would add women there, to remove bad men from the offices they were subverting the president’s defenders, experts at changing the subject prefer to debate whether he committed a felony, but high crimes and misdemeanors are not limited to actions that are crimes under federal law.
Anne Milgram: It becomes clear that the White House has never before been occupied by such a reckless and narcissistic adventurer. Sociopath is not too strong a word. We are regularly lectured about a constitutional crisis. If the house goes forward with hearings and ultimately votes a bill of impeachment for trial in the Senate, consider the alternative. Perhaps American presidents, by and large, have not been a distinguished lot, but if we ratify his behavior in office, we may expect not just a lack of distinction in the future, but aggressively dishonest, even criminal conduct. The real calamity will not be that we removed a president from office, but that we did not.
Preet Bharara: Can I tell the people who it was?
Anne Milgram: Yeah.
Preet Bharara: As Yoni writes in his Twitter thread, the fire-breathing radical in question was, former U.S. Solicitor General and Supreme Court nominee Robert Bork in 1998.
Anne Milgram: Yes, case closed.
Preet Bharara: Case closed. That’s it for this week’s Insider Podcast. Your hosts are Preet Bharara and Anne Milgram. The executive producer is Tamara Sepper the senior producer is Aaron Dalton. The audio producer is David Tatasciore , and the Cafe team is Carla Pierini, Julia Doyle, Calvin Lord, David Kurlander, and Geoff Isenman. Our music is by Andrew Dost. Thank you for being a part of the Cafe Insider Community.