CAFE Insider Transcript 2/11: Presidential Payback!

CAFE Insider Transcript 2/11: Presidential Payback!

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Preet Bharara:

From Cafe. Welcome to Cafe Insider.

Preet Bharara:

I’m Preet Bharara.

Anne Milgram:

I’m Anne Milgram.

Preet Bharara:

How are you Anne?

Anne Milgram:

Hey Preet.

Preet Bharara:

So we’re recording this on Tuesday morning, February what?

Anne Milgram:

11th.

Preet Bharara:

11th and the Iowa results I think should be here in the next couple of weeks.

Anne Milgram:

Some day.

Preet Bharara:

So Pete, Mayor Pete…

Anne Milgram:

Looks like he won by a very small [crosstalk 00:00:22].

Preet Bharara:

Bernie Sanders says that he won. He got more raw votes. Pete may have gotten more delegates. I don’t really know what the hell is going on.

Anne Milgram:

It’s a real failure of the process that we are now this long after and we still don’t… I mean it’s a failure of the process that we didn’t know that night and not good for the state of our democracy. But I will tell you there is one silver lining.

Preet Bharara:

What’s that?

Anne Milgram:

I really shouldn’t say it like that. There’s one tiny part that’s turned out to be good, which is that our five year old wants to follow the presidential primaries for the Democrats because we know Trump will be the Republican nominee. So my husband has been making this chart for him so we can follow.

Preet Bharara:

That’s great.

Anne Milgram:

He wanted a chart and so it’s given us more time to finish it and we’ll be done tonight in time for New Hampshire.

Preet Bharara:

New Hampshire’s tonight. Does your son have a favorite?

Anne Milgram:

No, but he’s learning all their names and sometimes he’ll just be like you… The other day he was like, “What’s a Buddha judge?” I was like, “I don’t know.”

Preet Bharara:

Can he pronounce it?

Anne Milgram:

Yeah, he’s pretty good. He’s pretty good. He’s also fluent in both Spanish and English, so his pronunciations are better than mine.

Preet Bharara:

Right. Shall we talk about some events?

Anne Milgram:

Yes, there’s been a lot and we’ve gotten a lot of great questions too.

Preet Bharara:

We have. Okay, so let’s, let’s throw out a question then we’ll discuss this issue and the things surrounding it.

Preet Bharara:

So 23 Nikoley writes to us, “Does Lieutenant Colonel Vindman have a potential case for wrongful dismissal? Since when can you fire someone for telling the truth under subpoena?” #askPreet.

Preet Bharara:

So last Friday a bunch of things happened. Lieutenant Colonel Vindman, who testified pursuant to subpoena in the house impeachment inquiry and was on detail, I believe, to the National Security Council from the military, was dismissed from that position. He was not fired. He’s not out of a job. We should make that clear but was essentially marched out of the White House with an escort.

Anne Milgram:

And so was his brother.

Preet Bharara:

His twin brother, who by the way did not testify,

Anne Milgram:

Did nothing.

Preet Bharara:

Did not do anything that we’re aware of to justify that. So that’s sort of guilt by blood and then we discovered some hours later that Ambassador Gordon Sondland, colorful ambassador, who gave $1 million to the Trump Inaugural Committee and testified also under subpoena, said some conflicting things. He was a little bit of a troubled witness; also dismissed.

Anne Milgram:

Yes.

Preet Bharara:

As I wrote earlier on in the evening, on Friday, this is just the beginning.

Anne Milgram:

What’s interesting also is it’s been reported that a number, a handful of Republican senators tried to intervene on Sondland’s behalf, not on Vindman’s behalf.

Preet Bharara:

What do you make of that?

Anne Milgram:

I think it’s interesting for two reasons. One, they’re okay with some retaliation but not all of it and so the political donor can’t be retaliated against but the career military decorated official can be.

Anne Milgram:

The second thing is, I mean it’s a fool’s errand because the president doesn’t care. What the president wanted Senate to do, they did and he doesn’t need them right now and so he’s not going to listen to any of them.

Preet Bharara:

You know what’s interesting about it is, as you say, the reporting is not just that some senators tried to dissuade the president, but that Vindman and Sondland were actually were quietly planning their departures anyway. Who wants to keep showing up at a job like that? It’s got to be uncomfortable and yet there’s a certain amount of disconnect between your positions and the position of the president. So you leave at some point and I think the reporting is that some people encourage the president, just let them do that quietly. Why take additional criticism? The president could not wait. He did it two days, over the objections of people around him and were counseling him, two days after. What happened?

Anne Milgram:

After the vote to acquit him.

Preet Bharara:

Oh, by the way, we haven’t talked about that.

Anne Milgram:

Yes, we should talk about that.

Preet Bharara:

Here we are on Tuesday the 11th and that news almost seems so ancient and baked into the process that we have moved on from that incredibly quickly.

Anne Milgram:

It felt to me, even Monday when the speeches were sort of over, it felt to me that the page had been turned. We should talk about it for a minute because what was interesting in the vote…

Preet Bharara:

For a minute because it’s only the third time [crosstalk 00:04:00].

Anne Milgram:

It’s historical.

Preet Bharara:

… In history that such a vote was taken.

Anne Milgram:

Yes and very important. I think you’re right that some of our reaction is that we knew what was happening or coming but the first vote there was something that I didn’t necessarily expect, which was, it was 52 to 48 and Mitt Romney…

Preet Bharara:

Mitt Romney.

Anne Milgram:

He is a Republican from Utah and he voted to remove the president and that, to convict and remove the president, and the second vote on obstruction was 53 to 47 but what’s really important about that is that he gave him what I thought was a very powerful speech on the Senate floor talking about his personal faith and that the president was guilty as charged and that it was a terrible abuse of power by the president for which the president should be removed.

Anne Milgram:

So it’s worth noting that in sort of what felt like an incredibly partisan and pre-baked process by Mitch McConnell, there was a moment where at least one person didn’t follow the plan that the president and Mitch McConnell had set out.

Preet Bharara:

Obviously what immediately follows Mitt Romney doing that is people around the president suggesting metaphorically that his head be put in a pike. You remember there was all this controversy over Adam Schiff making a reference to that CBS news article about how people close to the president said, “If you defy the president on this vote or an impeachment, your head’s going to be in a pike.”

Preet Bharara:

Well, Donald Trump Jr., and among others, said that Mitt Romney based on his vote should be excommunicated from the GOP and all sorts of other bad things should befall him. That sounds as close to a political head on a pike as you can expect, right?

Anne Milgram:

Yeah. And look at Vindman and Sondland. I mean, I think the president will, this is one of the things he does. I mean, and it’s one reason why people stay in line behind him because they fear what will happen if they don’t. So you’re right, this is the beginning, not the end, that there will be a lot of people who pay the price for whether it’s voting their conscience or doing what they believe is their duty, it’s all, the president sees it as disloyalty and he sees it as worthy of, essentially deep aggression on his part.

Anne Milgram:

Just going back to the sort of tweet and the question of whether Vindman has a case for wrongful termination.

Anne Milgram:

So when I was AGI, oversaw all the employment litigation in the state and frankly, no one will be surprised to know that there’s a lot. There are issues all the time and one of the things that was really interesting is that people would come in and make an employment complaint against a boss or a coworker, basically some form of discrimination or they were mistreated and what happened a lot, is that those initial complaints were not validated, meaning that they weren’t found to be accurate.

Anne Milgram:

But in the interim, while those initial complaints were being investigated, the people would have been moved from one location to another. They would have been denied vacation time or kept out of a meeting and that retaliation often formed the basis for legitimate claims.

Anne Milgram:

So it happened, I cannot begin to tell you how often it happened, that someone would comment on a complaint. That complaint was not upheld but there were complaints that were later made related to retaliation against them that were upheld because they were in fact punished for basically coming forward.

Anne Milgram:

So whether or not this legally rises to that level, and frankly someone has to bring the claim, so will Vindman or his brother come forward and make a claim. I don’t know that they will. They’re still in the army. They may choose not to but it certainly feels like retaliation and any good legal advisor to the president would’ve told him, “Let them resign. Let them step out.”

Preet Bharara:

There are other legal suits that are proceeding along the same lines. Andrew McCabe’s lawyer has filed a suit on his behalf in connection with retaliation against him, they claim.

Preet Bharara:

By the way, with respect to Vindman and his brother, there are other legal issues that arise, not just whether or not he has some kind of administrative or civil cause of action. More seriously, people are raising the question of whether or not the president is accountable for retaliation; that was unlawful in some way and so when people have raised questions ranging from, “Is it inappropriate up to and including, is it another impeachable offense?” And just by way of background, it should be made clear, that there was concern on the part of Senator Schumer, the minority leader and others, that there would be a backlash, there’d be retribution because that’s what this president does. That’s his MO.

Preet Bharara:

In response to a letter to that effect and a worry about that, the Deputy Secretary of Defense, David Norquist, sent in the middle of December, a formal letter back to Senator Schumer, thanking him for his letter that was specific with respect to recent testimony by Lieutenant Colonel Alexandra Vindman and others, and the Deputy Secretary of Defense writes in the letter, “Let me assure you the department will not tolerate any act of retaliation or reprisal against Vindman and Laura Cooper and others.” Is this a violation of that?

Anne Milgram:

No, I don’t think so and I’ll tell you what’s complicated is that the defense secretary doesn’t control the president and so Vindman was on detail over to the White House. What the Secretary of Defense can promise for is when Vindman and his brother and Laura Cooper are with them in the Department of Defense, but really when you’re on detail to the White House, the president is your boss and so the person Schumer needed to get the assurances from, which he would never have gotten, was from the president of the United States.

Anne Milgram:

It’s worth noting also, and I think this is in some ways more of an intellectual exercise because as we know, the Department of Justice, the office of legal counsel takes the position that the president cannot be indicted or charged, but Harry Litman, who’s a former federal prosecutor, raised the question of official retaliation, which is one of the criminal statutes that basically says, “Whoever knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any federal offense.”

Anne Milgram:

Now here, Congress isn’t a law enforcement officer. There’s lots of reasons why the statute may not apply, but really the language of the statute does sound eerily familiar to sort of what’s happened with Vindman. He cooperated and the same with Laura Cooper. Pursuant to a lawful request for that information, they provided it and then the president took action. So I think it’s more of a thought exercise than it is a reality, but it’s serious stuff and the president’s going to do it.

Preet Bharara:

Do you think the president sought legal advice? Do you think Pat Cipollone said, “Yeah, you can remove these guys from their detail in advance, even though the only basis was…” I’m going to talk about that for a second, also. People often leap to the defense of the president United States by saying things that are more palatable than what’s actually going on in the president’s mind and some people said about the president, “Well, the detail was going to be over anyway. There are various, okay reasons for removing Vindman and his brother from the White House,” of course the president himself and the president’s son may clear that the actual basis for removing him was the testimony that they did not like.

Anne Milgram:

Yes. They made it very clear that the president’s intent was to remove him for the things that he said in his cooperation with the impeachment inquiry. So I don’t think there’s any question as to the president’s intent and obviously that’s one of the factors here is what the president was doing and why he was doing it.

Anne Milgram:

What’s also important about this is that the president does it for two reasons. It’s just a one of the chapters in his playbook and he plays it all the time. One is to hurt Vindman and his brother. The other is to send a message to other people who would come forward or who would go against him.

Anne Milgram:

So we’ve seen this countless times in institutions where he is pushing to have his own view of the world and so anybody who goes against him gets hurt and gets punished and that’s… You know, you and I both worked in government. I can tell you that kind of thing would have a shockwave for people who are just going to want to put their head down, stay out of the fray and who otherwise might come forward and report abuse or problems and so it really is part of this goal of the president to really be able to direct the executive branch in any direction he wants with no accountability.

Preet Bharara:

I’m not comparing these two things because they’re completely different kinds of misconduct and different kinds of revealing of misconduct but in the Me Too context also, right? It’s very difficult to come forward because the track record in the country is that if you come forward with an allegation, no matter how true it is, if the person against whom you’re making the allegation is very strong and powerful and has a big public pedestal, they will make your life miserable and we’re trying as a country, culturally and legally, to make it more comfortable for people to come forward with news about bad actions against them and against people around them. The people in power are always trying to put those people down.

Anne Milgram:

Yeah. It’s a power differential for sure and the president is trying to use his power here to get absolute control and there’s no question that the president knows what he’s doing and is doing this intentionally to control.

Anne Milgram:

One other interesting thing is the president talks all the time about the deep state, meaning like the longterm career employees of places, like the state department or the Department of Defense, and he misuses the term deep state but putting that aside, he’s thinking about it as people who are embedded in these institutions who have a political will against him versus people who are our longterm government servants who may actually believe that he’s violating the law or doing something wrong but he sort of rails against it. It’s been one of his political rallying cries and yet what’s really interesting when you watch this stuff, is his effort really is to control everything, right? It’s not about a deep state trying to undermine him. It’s about him trying to control the complete apparatus in any way he wants.

Preet Bharara:

The theme with respect to all of this. The president does not have any principled views. The president, in my view, the president does not have any particular ideology or institutions that he respects. He would love there to be a deep state if he felt that the deep state was there sort of festering under liberal rule and decided they wanted to enact over policies, protections, protocols, traditions of their institution, in favor of what the president wanted.

Preet Bharara:

If they were a bunch of people at the state department or at DHS or somewhere else who are violating rules in order to cause the wall to be built, he would love it.

Anne Milgram:

Yes. I agree.

Preet Bharara:

Deep state would be the best thing ever. So the example that I always think of is the one institution, if you can call it that, that he does seem to adore and respect more than anything else is Fox News, but that’s also not true. He only likes the people in Fox News who say good things about him. If you actually say something negative about the president or reveal some truth or Fox even has someone with a different point of view on the program, he’ll say, “What is Fox News doing? It’s going down the toilet.”

Preet Bharara:

So there are themes that have developed over the course of three years with respect to this president and the thing that we should be most concerned about is in the aftermath of the acquittal, obviously Donald Trump, then musters a rhetorical barrage, right? He says, “I’ve been acquitted. I’ve been exonerated. It was a witch hunt. It was a hoax.” I’m not that concerned about the rhetoric.

Preet Bharara:

I’m much more concerned about actions he’s going to take and as I said on Friday, this is just the beginning. We will see, and we’re going to talk about the Trusted Traveler Program later in efforts by the president to hurt people in New York state, he’s got other enemies on his list. He’s got Nancy Pelosi. He’s got Adam Schiff. He’s got Jerry Nadler. There are other people who testified; Mitt Romney. He’s going to find ways, not just lambaste them rhetorically and on Twitter, but now that he’s emboldened and he hasn’t been held accountable and maybe he’ll get elected to a second term, I think we should talk for a minute about the ways in which he might try to do things to them that are also abusive power, for which he probably will not be held accountable.

Anne Milgram:

Look, it’s not just to them. So I sort of feel like this is operating on two levels. One is the level you just said, which is he’s going to retaliate against anyone has gone against him and he’s going to send a message. The second is that he is just going to take more and more power and he’s going to do things to get to whatever end he wants. He’ll do them. He feels vindicated by this and a lot of his statements were about total exoneration and so the message that he’s learned and his takeaway really is, I can do what I need to do to govern.

Anne Milgram:

So things like the Trusted Traveler Program, it’s not just that he’s trying to hurt the representatives of the state of New York, for example, or sort of push people in a state like New York, which votes democratic in presidential elections and so he’s probably not as worried about offending them politically. He’s also taking more power, right? He’s basically saying, “I have the authority to do these things,” and it may start with a Trusted Traveler Program, but it doesn’t end there.

Anne Milgram:

We’ve talked about this in the context of immigration that how much authority the immigration agents have within borders and it’s a huge portion of the country. There are ways in which Donald Trump can really dismantle the rule of law in our country and we should really pay attention to that. So the rhetoric, I agree, it feels classic Donald Trump and it’s easy to stop listening, but the reality of what it means is really, really important to be focused on and where this goes, and the problem really now is what’s the limit?

Anne Milgram:

If the president doesn’t feel that he can be held accountable by Congress, then the real question is, how can the American public hold the president accountable if he does something wrong or goes too far?

Preet Bharara:

What foreign power do you think Donald Trump called on Thursday of last week to request their assistance in helping them win the election?

Anne Milgram:

It’s a good question.

Preet Bharara:

China?

Anne Milgram:

I would have bet China and Russia, but you know…

Preet Bharara:

I’m not even joking.

Anne Milgram:

I’m not joking either. I mean, he now feels that he can get, look, even the conversation we should talk about this specific point that Barr has said, the Attorney General of the United States has said that they’ve created a process, whatever that means, in the United States Department of Justice to vet the information that Rudy Giuliani is bringing back from Ukraine.

Anne Milgram:

Then one of my favorite moments, Barr says, “Well, you know, we got to be careful because some of the information coming out of Ukraine might not be accurate,” but it’s like, have you ever heard of the Department of Justice creating a special process for a private citizen?

Preet Bharara:

Not just any private citizen, a private citizen who was A, the president’s personal lawyer. B, someone who’s compensated in some way we don’t understand. C, who’s associates were compensated were dis indicted by the Southern district of New York. D, is reportedly himself under investigation by perhaps the Southern district of New York and other agencies as well. And E, sum total of the above is a staunch political bomb throwing advocate of the president of United States and trash talks other people who say anything with respect to the president of the United States, who also has been on a forging mission to come up with dirt against Joe Biden. So you know, consigliere, lawyer, TV advocate and also finder of dirt on a political opponent, they’re setting up a process for that guy, for that guy who otherwise is generally incoherent lately, for that guy to provide information to the justice department. It’s crazy and appalling and absurd.

Anne Milgram:

I have never heard anything like it. It’s not even talking about, is the president calling on Russia or China to get dirt on his rivals. I mean, he’s now using the apparatus of government and the federal Department of Justice, the chief law enforcement department agency nationwide, to actually allow there to be this path. So it’s not a joke at all. I mean, this is what troubles me so much. It’s one thing when the president is on his own doing things that he shouldn’t do, like pay off a porn star, not to come forward, right? There are things in which I think we can agree, while problematic, are not using that was before I was elected. This is sitting in office, using the power of his office, getting his attorney general to create a formal process that nobody else gets. I mean, the CEO of corporations in the US they get a lot of access. They don’t get this.

PART 1 OF 3 ENDS [00:19:04]

Anne Milgram:

[inaudible 00:19:01] of corporations in the US. They get a lot of access, they don’t get this formal process created for them and so people should understand it’s all about the president.

Preet Bharara:

A couple further reactions. One is it seems like Bill Barr no longer even cares about optics at all, and I used to think that one way in which he’s shrewd and clever and also if he has bad motivations to protect the president unduly, he was a little bit dangerous, was that he was observing some norms and observing some appearances by saying blithely that you’re having this channel with Rudy Giuliani and when the president’s sort of allies who did an about face with respect to his views of the president, Lindsey Graham going on national television to say the same. They don’t even care how it looks anymore. The other observation is, I don’t know if this is in fairness to Bill Barr or not, let’s go back many, many months to the debate about Bill Barr before he became attorney general. He did not have a channel, I guess, a formal channel for providing information or advice to the Department of Justice. Remember, he had the arrogance to send a multi page document to the Department of Justice while he was a private citizen.

Anne Milgram:

Arguing why the president shouldn’t be charged by Mueller, why there’s no basis to have a claim. He didn’t even have the facts. He basically assumed facts not in evidence in order to write that memo to come to the conclusions he wanted to.

Preet Bharara:

There was something in the background of Bill Barr to suggest that the prominent prior government or DOJ officials who have a view about something should be given a hearing when they submit some information to the department. That was a simple legal memorandum that presumably, if you believe him was just sort of mailed in and whether it had any effect or not, who knows? It had a significant effect- [crosstalk 00:20:31]

Anne Milgram:

It had the effect of him becoming the AG, the president Lincoln-

Preet Bharara:

Yes, fine point and Milgram,

Anne Milgram:

Just that little thing. [crosstalk 00:20:38]

Preet Bharara:

I don’t know what comes of this. I think it looks terrible. Now that the Mueller investigation is over and impeachment is over and the acquittal has happened, they can sort of do whatever they want. So we should be clear, right? People provide information all the time. There are lawyers for individual parties who will write letters or will ask for a meeting and say they think that they have been defrauded. Companies sometimes face extortion and bribery and everything else, and they’re generalized victims in the country and obviously they should have some outlet, but that’s done, generally speaking, at the local level where somebody… Where a cyber intrusion or some such thing.

Preet Bharara:

Private citizens should be able to have an entry point to law enforcement because those are the people we’re trying to protect. So just be clear that that’s okay. Usually, if you have something like that or somebody has information about fraud or corruption or something else, you go to the local FBI office or you call an assistant US attorney when you go through their submissions process. I’m sure the AG’s office that you ran had such an intake process. The FBI does. Our office did.

Anne Milgram:

Yeah, that’s totally normal and it’s normal for a lawyer to be able to call in. It’s normal for a letter to be sent saying, “Look, my client was harmed or I was harmed and I think that someone has committed a crime. Please do an investigation,” that is normal, but there’s two points to be made. One is that there’s no formal process that’s created for… This is a little bit equivalent to pick any lawyer who appeared as a defense lawyer in the southern district and saying, all the other lawyers will follow the normal process and write letters or call the head of the fraud section if they think their client has been defrauded. Instead of that, there’s going to be one lawyer who has a special prosecutor assigned to him, who has a special process that’s assigned to him.

Preet Bharara:

In the ear of the most important law enforcement official in the country directly.

Anne Milgram:

Yes, right. Exactly. So this isn’t a local office, this is going to main justice to bar. There’s another piece that I think is equally important, which is that when those people come in, they come in making specific claims. So it’s, “I was defrauded. I’m a victim of mortgage fraud. Here’s what happened in this scenario.” It’s not generalized information or speculation. There’s a real threshold that has to be met for something to be even… You’ve got a lot of letters, and I was at main justice, you were in a local office, but we didn’t pursue a lot. Right? There had to basically be an articulated-

Preet Bharara:

Right, but once a suggestion was made that there was a crime being committed or bad stuff happened, we said, “Thanks very much…”-

Anne Milgram:

Yeah, and [crosstalk 00:23:00].

Preet Bharara:

“Now, step aside and we have FBI agents and auditors and investigators and prosecutors to handle it.” What is being described here is this sort of institutionalized deputizing of a private citizen who is beholden to the president of the United States and as a political advocate-

Anne Milgram:

To go out and do the investigation for them. Right.

Preet Bharara:

For the Department of Justice. That I’ve never heard of, and it looks terrible and it is terrible.

Anne Milgram:

And to your point, it’s worth making that there are law enforcement officials all over the world. On behalf of the United States, there are clear ways that if there were concerns about legitimate corruption or problems in Ukraine that the US government has to pursue them and this is not that. This is setting up a special separate process. And look, anytime someone does something like that, you have to ask the question; why is the normal law enforcement investigation, why is the normal process not sufficient?

Preet Bharara:

Answer to your question just occurred to me. So we’re sitting here on the morning of the New Hampshire primary and it’s unclear what Joe Biden’s prospects are. He didn’t do well in Iowa. People are suspecting he’s not going to do well tonight.

Anne Milgram:

Yeah, he said that.

Preet Bharara:

He’s lowering expectations.

Anne Milgram:

Yeah.

Preet Bharara:

He has this firewall concept in South Carolina. If it becomes clear in the next couple of weeks that Joe Biden is just not going to get the nomination, let’s say even hypothetically for the purposes of the question I’m going to ask you that Biden drops out of the race in four weeks; do you think that the president of the United States and Lindsay Graham and Rudy Giuliani and Bill Barr are going to be spending all this time pursuing information about Hunter Biden and Joe Biden and have hearings and do witness interviews and all this kind of stuff that they’re talking about doing now, or do they just say, “No need to do that anymore”?

Anne Milgram:

I suspect that they-

Preet Bharara:

Will suddenly lose interest?

Anne Milgram:

Yeah. I suspect they walk away [crosstalk 00:00:24:36].

Preet Bharara:

What is that going to tell us?

Anne Milgram:

Right. It’s going to tell us that they were doing it for purely political reasons, and then they will go on to look for avenues to get dirt on whoever becomes the front runner.

Preet Bharara:

And you know what they’re going to say? They’re going to say, “Well, yeah.” They’re going to own it. They’re going to say, “Of course we were investigating it for that purpose and there’s nothing wrong with that because he was somebody who was maybe going to be the president of the United States,” and will they will pivot like they always do to saying, the very dastardly thing that you accused us of that we rejected is the thing we were actually doing.

Anne Milgram:

Right. Oh, yeah. [crosstalk 00:25:06] They always do that. Yes, exactly.

Preet Bharara:

“How could we not investigate someone who is about to become the leader of the free world? That was our obligation and responsibility.”

Anne Milgram:

Again, it’s this mixed motive argument that, “Oh, if it just so happens to be beneficial to the president, it doesn’t matter because there’s one legitimate reason to do it.” Now let’s take one step back and talk about the memo that attorney general Barr has just issued. In the context of these continuing investigations by Rudy Giuliani, of Joe Biden and his son, Barr issued a memo with new restrictions over the opening a politically sensitive investigations. Basically, what Barr is trying to do is sort of set limits around this question of; when can there be investigations, particularly when there’s a political campaign or candidates running and what is the process in the Department of Justice that should exist?

Anne Milgram:

He basically comes out and says that, “There is no investigation, including…” and this is from February 5th, “No investigation, including any preliminary investigation,” which is basically when you’re going out just to do a little bit of checking to see if there’s a legitimate claim being made. It’s a really important part of understanding if somebody comes in and says, “Somebody, Joe robbed a bank, or Bob stole a penguin,” then [crosstalk 00:26:20].

Preet Bharara:

I was waiting for the penguin example. [crosstalk 00:26:22]

Anne Milgram:

Got to bring that in. If somebody came in and said that, well, if you’re a law enforcement agent, you don’t automatically open up a grand jury investigation, go to a prosecutor and say, “We need to charge Joe or Bob.” You look and see was the bank even robbed? Was the penguin even stolen? Was Bob or Joe even potentially connected to it? You look for a certain sufficiency of evidence to warrant going further, which basically means essentially, no investigation in my view. So Barr saying, “No investigation, including any preliminary investigation may be opened or initiated by the department or any of its law enforcement agencies…” which of course includes the FBI number one, “… of a declared candidate for president or vice president, a presidential campaign or a senior presidential campaign staff member or advisor without written notification to in consultation with the assistant attorney general and US attorney and written approval of the attorney general,” meaning Barr has to sign off on it. That’s one.

Anne Milgram:

Two is of, “… a declared candidate for the Senate or the House of Representatives or his or her campaign…” again, “… absent prior written notification to in consultation with the assistant attorney general and US attorneys…”

Preet Bharara:

But the language there, just to point out, these three categories you’re going through, the first category has to do with the declared candidate for president staff, whatever [crosstalk 00:27:30].

Anne Milgram:

Yeah, that stuff there.

Preet Bharara:

And that requires, according to this memo, “written approval of the attorney general,” [crosstalk 00:27:36] in the second category, the Senate and the House [crosstalk 00:08:38].

Anne Milgram:

It doesn’t require the attorney general.

Preet Bharara:

It requires [crosstalk 00:08:41].

Anne Milgram:

The assistant attorney, yes. [crosstalk 00:27:42]

Preet Bharara:

… general consultation with and then this third category is what?

Anne Milgram:

Yeah, so the second category requires notification and consultation with the assistant attorney general and US attorney. That does not require written approval, but again, notice and consultation when you would assume the lead prosecutor could stop an investigation. Number three relates to, “illegal contributions and campaign donations or expenditures by foreign nationals, people from other countries, to a presidential or congressional campaign,” which is already against the law, “absent prior written notification to the assistant attorney general and US attorney with jurisdiction.”

Preet Bharara:

Let’s talk about what’s not problematic, at least on its face. Actually, much of this people might be surprised to hear, I don’t know what your view is, that on its face, this is not super problematic in my view. The idea that you want to make sure that an FBI agent or an assistant US attorney somewhere is not sort of freelancing and deciding Willy-nilly to open up an investigation of a declared candidate for a US Senator House or these four national expenditures, I would have wanted to know about that. I would have expected, if anybody’s starting to open such an investigation when I was his attorney, they come into my office and we have a discussion about it.

Preet Bharara:

I would also expect, depending on the sensitivity with respect to a Senate or House [crosstalk 00:28:55].

Anne Milgram:

You would be upset if the FBI just went out and investigated something without your knowledge. [crosstalk 00:00:28:58].

Preet Bharara:

Yeah, because it has enormous ramifications. Just take a step back in all of this. People should understand that there is and should be incredible sensitivity and hesitation to open investigations of elected representatives or people who seek to be in elective office because it is true that you can have an undue effect on the election and you have to be careful and you have to be pragmatic and you have to be checking every box that you can.

Anne Milgram:

And we’ve been critical of, at least I’ve been critical of Comey related to the statements he made about Hillary Clinton during the summer before the presidential election-

Preet Bharara:

Oh, absolutely.

Anne Milgram:

… and then right before the election.

Preet Bharara:

Absolutely.

Anne Milgram:

I don’t think anybody can argue it didn’t have some impact. I don’t know what that impact was, but it was [crosstalk 00:10:38].

Preet Bharara:

Exactly.

Anne Milgram:

Yeah.

Preet Bharara:

But then you have to balance that. It’s the same with the Pfizer court recommendation. It was the same with the inspector general court on Pfizer. You’re balancing always two things; on the one hand, making sure that you’re not taking undue action and harming people, whether it’s sending candidates or people’s privacy or reputation. On the other hand, you don’t want to overly hamper people and chill them so that bad conduct goes unrestrained. You can’t make it so hard that nobody ever opens up an investigation. You can’t make it so easy that rogues will go out there and destroy people’s reputations. That’s basically the balance.

Anne Milgram:

Right. There’s something about this, which is at least in part fair for the following reason, which is, remember I was super critical of Comey just shortly before the November election coming out, and I believed that there was a rule against, or an informal rule against that basically people coming out and speaking right before an election, within 60 days or so. Comey’s pushback was it’s not a formal rule. The reality of that is that when you really look, it’s the norm of the Department of Justice. It’s the practice. So there is an argument to come out and say, “Nobody should make any statements within three months of an election. Nobody should do any over criminal activity,” that I would see as fair. I agree with you on the notice point that you’re the US attorney, you ultimately would be in charge of bringing a case. When I was the AG, I ultimately would have had to have signed off and Bill Barr oversees the whole Department of Justice.

Anne Milgram:

Here’s what I don’t agree with is the approval, and that’s where I think the problem comes. People could disagree on this. There’s a great quote by Barb McQuade who was one of your colleagues and the former US attorney in Michigan who said in Twitter, “I’m no Barr, but criticism of his new policy requiring AG approval before opening investigations of candidates seems misplaced. No such cases ever advance without AG approval. The problem is not the policy, it’s the credibility of the man behind it.”

Preet Bharara:

And that goes to all these things we’ve been saying where Bill Barr launders the phraseology of the president talking about spying and treason and everything else where he sets up, as we’ve just been discussing this special access by Giuliani to transfer information about Biden and Ukraine to him and all sorts of other things he’s doing is why I said at the beginning on its face, in an ordinary circumstance, it doesn’t seem crazy to me. I think it imposes some discipline and thoughtfulness on the process. The point is, who’s the person who’s enforcing it? When you say in the immediate wake of the investigation of Donald Trump, both by the special counsel and also by the House intelligence and judiciary committees that no investigation of a president or vice president without written approval of the attorney general that looks like he’s giving himself the power suddenly, although it’s not really a shift in practice, but the power suddenly to kill investigations of the person who hired him.

Anne Milgram:

Yes, and here’s why we should be concerned about this. Remember when the whistleblower first came out and there was a complaint that was sent to the Department of Justice by one of the internal general councils? I think it was the Department of Defense general counsel who basically sent this to the Department of Justice and said, “Look, we think that there’s an issue here,” and that was related to also, I believe the moving of the document from one server to another and basically just raising is there something criminal happening here? They didn’t even open a preliminary investigation. He just closed it. He said, “Nothing to see here.” [crosstalk 00:32:55].

Preet Bharara:

He killed it.

Anne Milgram:

He killed it-

Preet Bharara:

Immediately.

Anne Milgram:

… like second one.

Preet Bharara:

Right.

Anne Milgram:

It wasn’t even a conversation about what could have been out there? From what we can tell, at least what’s been publicly reported, there was no investigation done. So I have sort of two takeaways from this. The first is to be clear that the investigation of Biden, even under Barr’s new guidelines, can go on because Barr would put in writing, “I’m happy to have you investigate Joe Biden and Hunter Biden.” So people should be clear that there’s a hypocrisy in this, but that it allows Barr to basically say, “Sure, that’s a legitimate investigation. I’m going to allow you to investigate a political campaign.” So he would sign off on that.

Anne Milgram:

What is equally clear to me is that this is written very, very broad and I think will be used in a political way. So he says, “No investigation, even under to these allegations related to the call with Ukrainian and president Zelensky, we’re not even going to look at it, but based on pure conspiracy and speculation, it’s fine to investigate Joe Biden.” So there is a real lack of credibility for Barr, and here’s my read on it because it covers the president, the vice president, the presidential campaign and senior advisors.

Anne Milgram:

What we should all do, well, not us because we have no intention of committing crimes, but anyone who is interested in committing crimes should right now join a Republican presidential campaign as the senior advisor. Because it even looks to me from this that if you’re guilty of other things, you can’t be investigated at all without Barr’s approval. So meaning, think about Paul Manafort who was guilty of things unrelated to his involvement, the financial frauds unrelated to his service with the Trump campaign. He could not be investigated for those things outside of it because it could have an impact on the presidential election. So it’s sort of in some ways, potentially giving blanket immunity to people who are engaged with political campaigns.

Anne Milgram:

Again, on its face it’s not, the problem is, as Barb McQuade and as you’ve just said, the problem is how it gets applied. It’s clear from existing evidence already that it’s not going to be applied, in my view, fairly. And by the way, I don’t really think anyone should commit crimes-

Preet Bharara:

Okay, good.

Anne Milgram:

… for a political party or not.

Preet Bharara:

Thanks for clearing that up. Look, the language of part one of the memo does not say that you can’t open up an investigation with respect to Donald Trump or Michael Pence or their staffs. It says, “candidate for president or vice president,” so it encompasses, as the language suggests, whoever becomes the nominee and not even ever becomes the nominee, but presumably anybody who is now running in the hopes of becoming the nominee. So the language is written in a neutral way. You point out that the track record with respect to Biden suggested hypocrisy, but I don’t see that there’s any way to undo this memo. I also think that as a general matter, if some office we’re going to open up an investigation with respect to some candidate for president that the wise thing would be at some point, I don’t know if at the first, first, first moment of the conception of the investigation, you notify the attorney general. But you would pretty quickly even, I think this from the sovereign district of New York, pretty quickly, you want to let people in Washington know.

Anne Milgram:

Yeah, I agree with that. Look, I’m being extremely critical and I think I’m being critical here because it’s very broad. It’s done very broadly and again, Barr’s track record on this I think is not good, but I do agree. When I was AG, we did a lot of public corruption work. Things do leak also. So the argument that you have to pretty quickly tell the person in charge and the person who would be responsible for bringing charges is a good one because nobody should be surprised. And look, this is a fair knock on Comey for doing a lot of the investigative work around Clinton without…

Anne Milgram:

He made a decision that he didn’t trust, then Attorney General, Loretta Lynch and Deputy Attorney General, Sally Yates. So he was going to work largely behind the scenes as to some of the pieces. He was not regularly keeping them informed. It was complicated because of the sort of half recusal by Attorney General Lynch, but there is a fair criticism that you don’t want a law enforcement agency just running on their own, separate from the Department of Justice. This is just really broad, looks very carefully crafted to be beneficial to the president and the president’s campaign and potentially not to other opposing campaigns.

Preet Bharara:

I just want to present the dilemma as I’m thinking about, it’s not so easy depending on what the facts are. I’m trying to put myself in the position of being the US attorney at this moment and there’s cause to believe reasonable basis to open up an investigation of say, hypothetically Donald Trump’s campaign, like some new information comes to light. Let’s say you also come to believe that the fix is in for Donald Trump and based on meeting, and this is all hypothetical, and based on meetings you’ve been in and things you’ve heard and things you’ve seen and you didn’t just fall off the turnip truck, and you think that the moment you bring anything like this to the Attorney General whose approval is required, that it’ll be-

Anne Milgram:

Yes, I know.

Preet Bharara:

… it’ll be killed. My view always was you always followed the guidance, whether it’s you can’t indict a sitting president or anything else, where there was discretion accorded to you, that you exercise your discretion in the interest of justice, not in the interest of pleasing somebody who’s in Washington, DC. So how would you handle that?

Anne Milgram:

Yeah, so…

PART 2 OF 3 ENDS [00:38:04]

Preet Bharara:

Was in Washington DC, so how would you handle that?

Anne Milgram:

I think that’s a great question and one piece of this to really just focus on for a minute is the no preliminary investigation piece because I think the biggest challenge here is that what Barr is essentially asking you to do is that you get a little bit of wind of something that this is potentially… You’ve got this Trump campaign issue, but you have not done sufficient investigation to even know whether you would take it to a grand jury, which makes it a lot easier for the AG to say no. On its face, he doesn’t think it will be there or the evidence will be there. So the question is can you actually push this a little bit without calling it a preliminary investigation and poke around, interview some witnesses, work quietly to figure out whether or not there isn’t a basis to bring a case. Because I personally think if you just bring an allegation to the AG and he says no, it’s a lot harder to argue with that than if you have solid proof that a crime was committed. That’s when to me-

Preet Bharara:

But you never have the-

Anne Milgram:

It’s set up so you don’t even-

Preet Bharara:

It’s set up to fail. If you want it to, if you’re not… Again, all of this stuff, all of these rules, all of these principles, all of these regulations work or fail based on the good faith of the people who are responsible for them. If someone is acting in good faith, they would say, “Look, we received a tip that information is flowing unlawfully to a campaign, the Trump campaign or the Buttigieg campaign or whatever.” And then the department will ask the question, “Well we don’t know what that material is.” And the legal question is, “Is it a thing of value? Was it money?” And you’ll say, “Well, we don’t know. The FBI agent is not aware. It could be money, probably not money. It’s probably something else.” And if you’re acting in bad faith, you can very quickly say what seems to be the case with respect to the Ukraine stuff.

Preet Bharara:

“Well, even if it is a certain kind of information, we know for a fact that that’s not a thing of value and you can’t proceed.” Whereas in nonsensitive investigation that don’t involve the campaign of a sitting president, in no case would you ever put the kibosh on an investigation like that, you would proceed further to see where it goes. But people should also understand, and this is an obvious point, but maybe not everyone appreciates this. People do hundreds of investigations that never lead to anything because you’re trying to run it down. That’s what a responsible person does-

Anne Milgram:

Happens all the time.

Preet Bharara:

What a responsible office does. And I also get that you can’t be running down every single possible thing because of the possibility of leaks when it comes to something as sensitive as a presidential campaign. But like we were talking about before-

Anne Milgram:

There’s a huge amount of space-

Preet Bharara:

In between those things.

Anne Milgram:

Your point is completely right. On its face, it’s sort of hard to argue with, “Well, shouldn’t the Attorney General know.” But it goes a lot beyond that in my view. And it really sets it up in a way that I find troubling, and I sort of think the writing’s on the wall for what’s coming. I would love to be wrong about this, for what it’s worth. It gives me no joy to have any of these things come true.

Preet Bharara:

We may find out too late as to what happened, and the other problem is people have understood that the weaponization rhetorically and actually of investigations of people running for president is now a thing that can be very valuable. We had an investigation of Hillary Clinton which played into her electoral prospects, possibility of an investigation into Donald Trump that was not revealed before the election, played into his electoral prospects. Multiple investigations with respect to Donald Trump and his campaign and people’s surroundings.

Anne Milgram:

Michael Flynn, Paul Manafort, George Papadopoulos.

Preet Bharara:

In 2020. It’s something we’ve never seen before. It’s different from any kind of case that you and I ever handled and ever probably wanted to handle. But it’s a thing now that exists and the president and his people and others understand that it’s a powerful weapon for reelection and for defeating your opponents. That’s just a fact. Whether or not people will exploit it in an unlawful or unethical or inappropriate way, we don’t know. And if they do, we may not know about it until after the election.

Anne Milgram:

You know, it’s funny just thinking about this for a second, it really is. The whole point is… And you and I both done a lot of public corruption cases, but the whole point is for the criminal investigative process not to interfere with the elect election process. And look, if someone gets elected and it later turns out they’re convicted of a crime, they have to step down. There’s plenty of arguments. People may go, “I would like to know beforehand,” but it’s not how the system works. So it just feels to me like we’ve come so far down this road where investigations can be used or abused or announced in ways that are really damaging that it’s really terrible.

Preet Bharara:

Again, we should acknowledge that the Justice Department is not always perfect. US Attorneys are not always perfect and there’s a reason why there is concern about it and it’s not hypothetical. There was a case brought by the Bush Justice Department against a sitting Republican Senator, Ted Stevens of Alaska, not long before his reelection campaign, and it had devastating consequences to him. In the aftermath of that there were investigations done and it was shown that the prosecutors did not acquit themselves well in various ways and there were disclosure violations and all sorts of things, and the judge in the case excoriated the department after which, in the next administration there were all sorts of additional training that was required and changes in rules and everything else to prevent against that.

Preet Bharara:

So like anything else, whether you’re talking about trusting and respecting the intelligence agencies or law enforcement agencies, there is a history of mistakes because people are human beings. And so in good faith it may come from a decent place. I think you and I both worry that it’s not always necessarily coming from a good place based on those good faith worries about the past. It’s coming from a learned understanding of how to protect the president in very recent months on the part of people who seem more political than principled.

Anne Milgram:

The other thing I think is tricky… And I know there’s so much more for us to cover, but the other thing I think is tricky is that the idea that the AG has to sign off in writing on it, it would’ve been better in some ways to have made a blanket rule that there’s no public announcements and there’s no investigative activity that could be public within 90 days or six months of an election. And the bottom line is, unless you’re going to be outside of a statute of limitations. There could be compelling reasons why something has to go to the grand jury three months before an elections.

Preet Bharara:

I have problems with a rule like that, where people… The actual rule refers to electioneering kinds of crimes, really relating to the election. It’s just a matter of prudence that you want to be careful about starting an investigation into politicians running for office close to the time of the election. But hypothetically you have someone who’s running for the Senate or the Governor of a state and you know pretty much beyond a reasonable doubt close in time to the election, because that’s when it comes to you, they’re committing massive fraud. Part of your duty as a public official is to do something about that, prevent that person from getting reelected on the basis of that criminal activity.

Anne Milgram:

Well, there’s also other scenarios too where you have somebody who within this time window would be destroying evidence and of course you would take action. You would not wait in those kinds of circumstances.

Preet Bharara:

You can’t incentivize those people who… If they understand, “Oh, look, I have a-”

Anne Milgram:

I have three months. It’s a good point.

Preet Bharara:

It’s like The Purge. It’s like the electoral purge period.

Anne Milgram:

So here’s the issue though. The issue is that the thing about a stronger rule, which I agree with you, I know you’ve talked me out of it and I’ve talked myself out of it, but the thing about that is that it’s neutral, that it would apply to both parties. It feels less to the whim of the AG, and the way it’s currently constituted-

Preet Bharara:

Well this [crosstalk 00:45:13] is neutral too.

Anne Milgram:

But it’s up to the AG to sign off, and that’s one person. Political could be Democrat, could be Republican. Right now it’s Bill Barr. There are other people of different political parties who could also take advantage of something like this, but it feels so… We’re having credibility issues because it also… It’s not just the person sitting in the office, it’s that that person gets to fully decide whether or not to sign off on it.

Preet Bharara:

Okay. And so beyond Ted Stevens, much more recently, there’s an Inspector General report that cites all sorts of errors and mistakes and bad things done with respect to the FISA application relating to Carter Page. So there’s a real basis to be concerned about these things. The question is whether the reaction is balanced in principle or not. We are running out of time, but there’s another big issue that people have been asking us about and that is with respect to the emoluments clause case, one of the monuments clause cases that was brought by 215 members of Congress against president Trump, essentially based on allegations that he’s taking money from foreign powers through his hotel business and everything else, and that’s a violation of the constitution.

Preet Bharara:

A three judge panel in the DC circuit court of appeals, just one level below the Supreme court, threw out the case, Trump has bragged about it. We should make one thing clear. They did not dismiss the case, throw out the case based on the merits. They threw it out based on this principle in the law, that’s important, that’s called standing, which among other things makes clear that not anybody in the world can sue anyone else in the world because they don’t like the thing that happened. You have to be somebody who has legal standing in the case.

Anne Milgram:

Here’s the best example of this. If I make a statement and I am compelled in violation of my fifth amendment right to remain silent, but a police officer compels me to make a statement, that’s a violation, I can assert that violation. You can’t assert it for me.

Preet Bharara:

Right. Or like anything else, I can’t sue you for defamation of somebody else, because the standing doctrine, which is familiar to people who have gone to law school-

Anne Milgram:

The person who was defamed can sue.

Preet Bharara:

Requires a few things. One, that the person who’s trying to sue suffered an injury, an actual injury. That the injury that that person has suffered is traceable back to the conduct of the person you want to sue. And that that injury can be redressed or fixed in some way by a favorable ruling of the court. And so these members of Congress tried to make an argument about whether or not they were harmed-

Anne Milgram:

Because they didn’t get the opportunity to approve. I mean, their argument is that Trump is accepting this foreign money and that it says in the constitution that the president can only accept emoluments with Congress’s approval, and so they’re arguing, “We don’t even get the chance to approve it.” But the court finds that those members of Congress don’t have standing, and just to shorthand this, there were 215 members of Congress who had basically signed onto this lawsuit and litigation.

Preet Bharara:

All Democrats.

Anne Milgram:

All Democrats. There are 435 members of Congress. So 215 is not even a majority. And what the court basically said is that it’s the same as it being one member of Congress, because those 215 people don’t have the authority to act on behalf of the United States Congress to have actually voted yes or no. It’s not a majority of both houses of Congress. And so it’s not a case or controversy because essentially they really could not have taken action one way or another related to emoluments based on the fact that it’s not a majority of this body. So the court sees it as a political dispute, not a case or controversy that they would actually have to decide.

Anne Milgram:

It becomes more hypothetical. 215 members of Congress are saying, “Hypothetically, even though we’re not a majority of Congress, we should have the right to decide this issue,” and the court’s saying, “You don’t have the power because you’re not a majority.” Let’s just say one thing. There is longstanding precedent on this, and of the three emoluments cases that are working their way through the courts, this was the weakest in part because the suit was brought by Congress. There are still two more, but it was a tough thing.

Preet Bharara:

The kind of party who has a greater claim to standing in a case like this arguably would be some other vendors or hoteliers who are losing business to the president’s properties because he’s violating the constitution here.

Anne Milgram:

Yeah, I think it’s a really interesting question. Maryland has sued, it’ll be interesting to see whether the state of Maryland is found to have standing. There’s a lawsuit in New York. It’s a question of, does another hotel who is a competitor who now sees their business going down, did they have the ability to say, “Look, the president is violating the constitution and it’s hurting my business.”

Preet Bharara:

So the bottom line is, in my view, it’s not a crazy decision. It’s not a surprising decision. It’s not the end of the story because there are these other suits proceeding as well.

Anne Milgram:

Agreed. Agreed.

Preet Bharara:

You travel a lot, Anne?

Anne Milgram:

I do travel a lot. Not as much as I used to, but travel a lot.

Preet Bharara:

I travel a bunch and I really like my pre-check.

Anne Milgram:

I love pre-check.

Preet Bharara:

And I love my global entry.

Anne Milgram:

I also love my global entry. Me too.

Preet Bharara:

And are you a resident of New York?

Anne Milgram:

I am a resident of New York.

Preet Bharara:

So am I. Why are we raising this?

Anne Milgram:

We’re raising it because the president this past week decided that New Yorkers should not have access to global entry anymore.

Preet Bharara:

What?

Anne Milgram:

I know.

Preet Bharara:

Come on.

Anne Milgram:

I know. It was one of those great moments where you almost can’t see what the hammer is that the president’s going to drop next.

Preet Bharara:

Does that apply to him? No, because I guess-

Anne Milgram:

He moved his residency to Florida also remember? And he’s on Air Force One.

Preet Bharara:

Do you think he needs visas when he goes to these places? When he goes to Davos? Well I guess you don’t need a visa for that country.

Anne Milgram:

Does he need a visa? No, not for Switzerland. So the president basically comes back and says, “I’m cutting it off and the reason I’m cutting it off is because,” New York passed something called the Greenlight law, which apparently 13 other states also have, and what that law says is it allows undocumented immigrants who do not have social security numbers to obtain valid state driver’s licenses. And it also, I think more importantly, the basis that the Department of Homeland Security is using, is that the law limits the state of New York from sharing data related to these licenses with federal immigration authorities.

Anne Milgram:

What they’re basically trying to say is, “We need access…” The argument by the administration is, “We need access to that data if we’re approving somebody for global entry, and we need to basically have the data.” Really, this is part of a longer fight that’s been going on between the Department of Homeland Security and states, which is giving access to their data on people who are arrested, and people who… For example, the Department of Homeland Security wants access to the state databases to be able to figure out who’s been convicted of a crime, and obviously that gives them the opportunity to identify folks as unlawfully here and then to deport them.

Anne Milgram:

And so places like New York have said, “We’re a sanctuary state, we’re not…” And also obviously here they’re giving driver’s licenses, but also we’re not sharing that data. And this is a huge back and forth between the administration. So what the administration now is saying is, “Okay, well we’re going to find every way in which we could potentially access those DMV files or basically that we could get back at the states who are not giving us access.” So there’s problems. One is they targeted New York. There are 13 other states who have very similar laws. New York’s is a little more strenuous, but this is-

Preet Bharara:

Well he can fix that problem by just taking those privileges away from those other states too, no?

Anne Milgram:

There is a constitutional argument about how they’ve done this and the way that they’ve singled out in New York. There’s also a bigger question in my mind of the authority of the federal government to do this and I don’t think it’s simple. Obviously if the feds passed a law saying every state has to give us access to their DMVs, then every state has to give access to their DMVs. They have not passed that law. So the question-

Preet Bharara:

Let’s not give them any ideas.

Anne Milgram:

Good point. Good point. But I assume they haven’t passed it because they haven’t been able to pass it. I’ll tell you this was an issue when I was AG. We’re going back more than a decade. This is more extreme under the current president, but this has been a fight with access to not just data for DMVs but also data to Departments of Corrections to know who’s incarcerated, and we see this real back and forth going on. Basically the president is punishing the state of New York and the people of the state of New York. But there’s one part, Preet, the president is taking our global entry, but…

Preet Bharara:

Well, if you have it, you can maintain it. You just may not be able to renew it, and if you’re applying for it, you probably won’t be able to get it. But the pre-check is still safe.

Anne Milgram:

Yes, and I think this is a fascinating political statement by the president, that maybe… And the head of Homeland Security said, “Well, we might take that down the road,” but it also appears to be an understanding that that is a step too far. You would have a lot of angry, angry people.

Preet Bharara:

Or angry elites.

Anne Milgram:

Yes, exactly. Who want that.

Preet Bharara:

We’ll keep talking about this in the coming weeks. The Governor of New York, Andrew Cuomo, and the Attorney General of New York, Latisha James have announced that they plan to bring a suit against the Trump administration. We’ll see what those constitutional and other arguments are.

Anne Milgram:

Yeah, and how strong they are. I think we have to see what the suit is. It feels wrong to me particularly because they’ve singled out the state of New York, but yes, let’s see what their claims are. So Preet, there was a little humor in the midst of all this craziness.

Preet Bharara:

There was?

Anne Milgram:

A little. Marco Rubio tweeted out on February 7th, he’s decided to do this new thing, so he tweets out, “I will be occasionally posting definitions of words and phrases used by political media in a series entitled #mediawordoftheday.”

Preet Bharara:

In a series entitled #mediawordofthe… He should maybe have some media training.

Anne Milgram:

Yes. And his first word was principled, and then Nicole Wallace of MSNBC tweeted out the next day, “Can you do sanctimonious tool for us tomorrow?”

Preet Bharara:

Did he do that?

Anne Milgram:

I don’t know. I don’t think he did sanctimonious tool, but I am curious to see what the word of the day is today.

Preet Bharara:

Is there a definition for that or do we have to go to Urban Dictionary? For sanctimonious tool?

Anne Milgram:

Sanctimonious tool.

Preet Bharara:

You know what that is, right, Anne?

Anne Milgram:

I do.

Preet Bharara:

Okay. All right, so we hope to be reporting the returns from Iowa in the coming weeks.

Anne Milgram:

Maybe New Hampshire.

Preet Bharara:

Maybe New Hampshire.

Anne Milgram:

Next week, maybe.

Preet Bharara:

Everyone stay warm and vote if you’re in New Hampshire.

Anne Milgram:

Yeah, thanks Preet.

Preet Bharara:

that’s it for this week’s Insider Podcast. Your hosts are Preet Bharara and Anne Milgram. The executive producer is Tamara Sepper. The senior audio producer is David Tatasciore, and the Cafe team is Julia Doyle, Matthew Billy, David Kurlander, Calvin Lord, Sam Ozer-Staton, and Geoff Isenman. Our music is by Andrew Dost. Thank you for being a part of the Cafe Insider Community.

PART 3 OF 3 ENDS [00:55:33]

 

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