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March 12, 2020

CAFE Insider Transcript 3/10: Virus Lockdown & SCOTUS Showdown

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:             Hey, Preet.

Preet Bharara:              So the only thing on people’s minds, or the most important thing on people’s minds right now, it’s affected people’s lives, the Coronavirus, Covid 19.

Anne Milgram:             I just biked here.

Preet Bharara:              To avoid public transportation?

Anne Milgram:             Well, the mayor said don’t get on a crowded subway train, which basically means don’t get on the subway train.

Preet Bharara:              Although they’re less crowded. I haven’t been on the subway in some days, but people who I know have said they see the congestion less.

Anne Milgram:             I think that’s true. I also think that as people start to come to an understanding that this is not a short thing, and I don’t want to suggest it’s going to go on forever, we’ll get through this, but at huge cost I believe. And I mean that in human and financial terms. And I think people are starting to think about how do you work remotely? We both teach at NYU. NYU is going remote as of tomorrow, for at least a couple of weeks. And then they’ll reassess the situation. And we’ve seen that with a lot of universities in New York.

Preet Bharara:              I have three very bummed kids right now. I have two sons in high school. Their high school has closed for at least two weeks. They’ll have a week of spring break and they will reassess. They don’t know if they’re going back. My daughter, first year in college was just told that beginning this weekend they are supposed to leave campus and are not returning. They’re not making a reassessment, so she’s done. The entire college class has to go home, not coming back.

Anne Milgram:             Look, I think it’s really hard. I also think that we should just talk a little bit about where we are. Which is that for the past week, people have been … the health experts and the epidemiologists have been talking a lot about the difference between pandemics and epidemics. And it’s really clear that we’ve entered the phase where this is a pandemic. Meaning it’s spread all over the world. It’s very dangerous. People can die from it and at this point it’s also we know it’s transmittable from human to human. So it’s an important part of the conversation. It doesn’t change in some ways what we do next. But I think it brings home the reality that this has spread globally. It’s on every continent other than Antarctica. And there are real issues around mitigation, meaning how do we stop it from spreading rapidly? Which will overrun our healthcare system and cause a number of problems. And so, I think you’ve just reflected the reality of, if I was the president of a university, I think I would do the same thing. I think I would go remote.

Preet Bharara:              What if you’re the president of a country? Would you do something differently?

Anne Milgram:             I would. And in fact I think you can almost watch everything Donald Trump has done. And remember I oversaw when I was AG … I was the Chief Law Enforcement Officer in the Homeland Security and Preparedness Unit, was in but not of the AG’s office. I had run the Homeland Security and Emergency Preparedness Transition for the governor. But I can tell you this, there are these pivot moments in time and these pivot points where you have to make decisions about how do you do the best things to protect the most people and also to free up hospital beds. And not to alarm folks because I think that a lot of States are doing the right thing and a lot of people are doing the right thing.

Anne Milgram:             But literally if you took every single thing that president of the United States has done and did the opposite, you would be pretty close to how someone should lead in a crisis. Number one, be transparent. There are things you don’t know, but you have to tell people what you know and what you don’t know. And they failed before the president even walked in. Because of cuts he’s made to the CDC, because of cuts to Health and Human Services, because a lack of really planning for a number of different pandemics and epidemics, and Homeland Security emergency management type responses. So I think that they were hamstrung when they came in. But once this happens, you do everything you can. The testing is really one of my biggest concerns.

Preet Bharara:              We still don’t know how many people have been tested. We keep hearing these numbers. A million tests have been distributed and maybe there’s more testing that it seems to have been … Because, we’re hearing about a lot more cases that have been identified with people having the virus. But I don’t understand why no official can tell us how many Americans have been tested.

Anne Milgram:             Right. Nobody can tell us. And also, they have not allowed enough universities and private labs to do the test. So we are still missing a number of tests in the United States of America. And if you’re the head of the CDC, you immediately are going to give as much access as can be given safely. Right? You have to make sure the tests work and that obviously, the first test they sent out did not work. And so you have to make sure everything’s working and then you have to require reporting on this. Because this is a really important thing for all of us to know. Again, it’s not a question of alarm, it’s this until the testing really gets to the point of understanding what the numbers are and where the risks are. We’re making an assumption that people don’t have it, and given how little testing has been done, we should be assuming the opposite.

Anne Milgram:             We should be assuming that more people have it and look, I don’t think this is a secret. The numbers are going to go up as the tests go up and I won’t … We should all welcome that in the sense of it’s better to know what the problem is to fix it and it also helps us gear up for emergency response. Also, it probably shows that right now there’s a mortality rate of about 4%. Meaning 4% of the people who we’ve known to contract it die from it. It may be much lower actually. And I think it probably is-

Preet Bharara:              That’s based on some evidence from the experience in China with incomplete information there as well. So we still don’t know.

Anne Milgram:             And also in the United States with incomplete information. Because again, of the tests that were done, we’re being told it’s about something like 3.5 or 3.6% in the US. But again, we really I think just don’t know the extent of this. I also want to just say that I’m really sensitive in New York. There’s an issue where they’re really concerned about children who may have instable housing, be homeless, need social services, need medical attention or meals. Those are huge policy issues, but we also have to understand that we have a huge health issue. And so, the mayor needs to be figuring out how do you solve for those policy issues, period. And then, how do you do the right thing by schools, and by teachers, and parents, and everyone. And so, I think it’s complicated. But again, I think transparency and having open conversations and communicating is one of the most important things.

Preet Bharara:              How do you from your experience in the New Jersey government, draw the line between or balance between making sure that you’re not causing a panic? You’re not causing people to freak out about it as a public official, but making sure that they’re taking it very seriously and they’re undertaking precautions. And you were saying earlier that everything the president has done, you could do the opposite and it would be better. Look, he has overemphasized the no panic to a fault.

Anne Milgram:             Right. But I do think he’s overemphasized it to the point where he’s not credible. And so it may seem that-

Preet Bharara:              He called it a democratic hoax, right?

Anne Milgram:             Yeah.

Preet Bharara:              So it goes full circle. He called it a democratic hoax. Initially, he tweeted out yesterday as the situation is getting more serious. He compared it unhelpfully to the regular influenza that killed more people. But we know what the cycle of influenza is and the mortality rate is-

Anne Milgram:             And we have flu shots.

Preet Bharara:              And we have flu shots. And there are vaccines available and there’s treatment of a various sorts. So the idea that he’s trying to minimize this by the way, not because he just wants the public not to panic, but-

Anne Milgram:             It’s about the economy.

Preet Bharara:              Well, it’s about him. Even the economy is not about the economy.

Anne Milgram:             Right. It’s about him.

Preet Bharara:              The economy is about him. David Frum I think had an interesting tweet today. He’s like, “The rooster who took credit for the sunrise is complaining when he’s blamed for the sunset.”

Anne Milgram:             That’s exactly right. It’s true.

Preet Bharara:              So this is how Donald Trump has dealt with the stock market. When it was high, it’s because of him, because of him, because of him. Now it goes down to correction territory, in near bear market territory. I think, I don’t know what’s happening as we’re recording this on Tuesday morning.

Anne Milgram:             And yesterday, the markets stopped. I mean, there’s an emergency-

Preet Bharara:              After four minutes.

Anne Milgram:             Yes, there’s an emergency mechanism that they put in place and it hasn’t been triggered in two decades. I think in about 20 years.

Preet Bharara:              This is not the biggest issue in the world. But can I tell you, I don’t understand why it is that, Mike Pence and Donald Trump have not been tested. And I’ve heard some people say, “Well, he hasn’t had prolonged interaction with somebody with Covid 19. ” Although there was a CPAC conference where someone who’s not been named has tested positive and has come into contact with multiple members of Congress who have now decided to self quarantine.

Anne Milgram:             Yes. So including, let’s just talk about this for a second.

Preet Bharara:              Ted Cruz.

Anne Milgram:             Ted Cruz, another member of Congress. A Republican member of Congress, I don’t remember. Matt Gaetz was on the plane with the president yesterday when he received a call saying that he was in contact with the individual and that he needed to self quarantine. And he was on Air Force One-

Preet Bharara:              Which meant he went to a different row.

Anne Milgram:             Yes, exactly. They said he sat alone with the president of the United States. He’d already been in the president’s car. He was already talking to the president. I’m sure there were handshakes and friendliness. And so, I don’t think the president has self quarantined obviously. But look, one of the really important things in government also … And I’m sure that the health folks are telling the president this, is that they need to keep him healthy. He’s the leader of the country.

Preet Bharara:              So test him.

Anne Milgram:             Exactly.

Preet Bharara:              In Iran, multiple high level officials and some percentage of the parliament has tested positive. And there have been deaths. So the president should be tested.

Anne Milgram:             And can we talk about CPAC for a minute? The Conservative Political Action Caucus. That meeting was last week outside of DC. If you listen to some of the speeches there and this is true of the president and this is true of a number of the members of the Republican party. It’s all spin mockery about people and the media taking the disease seriously. And, it’s been really politicized as-

Preet Bharara:              That’s why God has a sense of humor. So the idea that, a lot of what went on there was, mockery and diminishment of this threat of the Coronavirus. Following after which we have understood now that CPAC was kind of a vector for the disease. There’s some irony there.

Anne Milgram:             Look, the bigger issue to me with all of this, and it really can’t be said enough, politics has no place when it comes to protecting people’s lives and keeping people safe and healthy. And so obviously we talk about politics all the time in this context. We talk about healthcare with politics, but when there’s a national emergency like this, a pandemic, it all has to fall to the wayside. And every single time the president says something political about the Democrats, it makes me very angry and it’s just not good for us as a country overall.

Preet Bharara:              Well as I got a bit angry this weekend.

Anne Milgram:             You did.

Preet Bharara:              Just hearing all the news through Sunday and realizing that, the market was going to crash. And realizing we have an oil crisis, and realizing that my kids had their school canceled, and all sorts of things are being uprooted and appended, and we don’t know how many people are going to perish from this disease. And I thought back to the president to some days earlier, calling it the hoax, the democratic hoax, minimizing it completely after which I then wrote up a Twitter thread that’s again-

Anne Milgram:             It’s the longest Twitter thread I think I’ve ever seen here.

Preet Bharara:              I don’t know how to thread. People do like-

Anne Milgram:             Me neither. I don’t know how you did it.

Preet Bharara:              I just kept replying to myself. Beginning with Donald Trump is the greatest hoax ever perpetrated on America though. He calls everything else a hoax, calls Mueller a hoax, he calls Ukraine a hoax, he calls Coronavirus a hoax. He’s the hoax.

Anne Milgram:             Yeah, great.

Preet Bharara:              He’s the hypocrite.

Anne Milgram:             I’m with you Preet Bharara.

Preet Bharara:              Maybe I got a little carried away but-

Anne Milgram:             We should post it. Just because what you did was, you went systematically through all of the things that the president has done and said. And showing that he has not been truthful or forthright. But again look, my issue here is I could put all of that to the side for this moment in time. And every American, and every person who lives in this country or any place in the world that is impacted by the virus should want their government to succeed and do the best they possibly can. And that requires him to rise above politics. And he’s shown he simply can’t. And the more he name calls, and the more he makes this about politics, the more assured I am that I think he will lose this election. Because I think people see through this and I think part of the economy is also a reaction to frankly the lack of preparedness and the lack of-

Preet Bharara:              You don’t think it’s because of the democratic debates?

Anne Milgram:             I don’t.

Preet Bharara:              Which is what he said.

Anne Milgram:             Well there’s another debate coming up next week, right? Or a couple of weeks-

Preet Bharara:              Sunday.

Anne Milgram:             Sunday?

Preet Bharara:              It’s on Sunday.

Anne Milgram:             We should talk about the oil crisis and the recession just for a second, which it bears talking about. I mean the stock market crashed yesterday and it’s obviously been going down a lot in the past week. But yesterday was dramatic because, it crashed so quickly that they had to stop trading because they were afraid-

Preet Bharara:              It basically dropped 7% and the protocols that they adopted some time ago called for a halt for 15 minutes.

Anne Milgram:             Yes. And so, there was a halt and a number of economists have said already that we’re in a recession. Which raises all kinds of questions about, should the fed cut interest rates that the president could do pretty quickly? Should there be … Remember in 2008 there was a stimulus package and infrastructure package to push money out to the States and localities for people to have jobs-

Preet Bharara:              Or bailouts for certain sectors of the economy. They’re talking about cruise lines-

Anne Milgram:             Airlines.

Preet Bharara:              And airlines. There’s a lot of other folks who are in trouble too.

Anne Milgram:             Yes, I agree. And look, we should also be thinking about workers who work … Temp workers, gig economy workers, low wage workers who are hourly and frankly small businesses and even large businesses will be deeply impacted. And so, this is a really important economic question. It’s confounded by … You started to talk about this, the oil crisis. And basically OPEC did not agree to … they had a meeting over the weekend. That’s the Organization of Petroleum Exporting Countries. And they were asked to essentially drop the levels of production because people are driving less. People are in their cars less, they’re staying home.

Anne Milgram:             People are traveling less and so that has an impact on their just using less oil and so they wanted to drop production. They did not come to an agreement. Saudi Arabia is flooding the market with oil. And what that essentially means is that, all these millions of people who work in the oil industry and in this part of the economy and whose livelihood depends on it, they’re not making any money. And it looks like it’s going to get worse. And so that is a huge thing that is very disruptive to the economy as well. There’s not much, you and I sort of average people could do about this.

Preet Bharara:              But Donald Trump said it’s a great thing.

Anne Milgram:             He did say take cruises and get on an airplane.

Preet Bharara:              Yeah. He said the price of gas is going to go down. That’s great for everybody. So he-

Anne Milgram:             Well if you think short term-

Preet Bharara:              He sees the silver lining in all things.

Anne Milgram:             Right. And look, if you think short term. But I think longterm, the stability of the US economy matters greatly and we don’t want it to crash.

Preet Bharara:              Let’s talk about powers of State and what they do. And I will say by the way, one of the positive things about the administration’s response is, we were initially critical of the fact that Dr Fowchee leading expert on all this stuff in the government seemed to have been muzzled. He was on multiple talk shows on Sunday. He seems to be out there giving the public the benefit of his expertise and so that’s a good thing.

Anne Milgram:             Yes. I also very much want him to stay safe. So he’s on the list with the Supreme Court justices and a group of other folks that-

Preet Bharara:              I wonder if he’s been tested?

Anne Milgram:             I don’t know, but I hope he takes care of himself.

Preet Bharara:              So various States have declared a state of emergency. And depending on what’s going on and what your temperament is, you view that as a good thing. Because, the government can take strong, powerful executive action to keep people safe. Or you could think well, maybe we’re granting too much power and authority to the executive. In New York, there’s been a state of emergency declared. There’s been the passage of a new law so that more funds can be applied to the problem of mitigating Coronavirus.

Anne Milgram:             I think $40 million.

Preet Bharara:              Yes. These are good things, these emergency powers?

Anne Milgram:             Yes.

Preet Bharara:              Why?

Anne Milgram:             They’re hugely important. And so first of all, the United States government declared a state of emergency back at the end of January when the world health organization and the CDC basically came out and said there was a risk from the virus. And so, nobody should be surprised that there are States of emergency going on. We know obviously, Italy is in a massive state of emergency.

Preet Bharara:              The whole country is on lockdown.

Anne Milgram:             Yes. The whole country, 60 plus million people I think. My number may be wrong, but millions of people are on lockdown. So in the US, the state of New York declared a state of emergency on Saturday. And that brings it to eight, the number of States who have declared a state of emergency. California, Washington State, Oregon, New York, Maryland, Georgia, Kentucky and Utah. And it’s worth noting that up until about this last weekend, the state of Washington had more cases than the state of New York. New York now has more cases-

Preet Bharara:              Washington has more deaths.

Anne Milgram:             Washington has more deaths. Yes. And still has a large number of cases, but New York has surpassed. And obviously New York is a more populated state and has more people. And so, some of this is relative to the number of people. But what the governor basically did is, he came out and said, we need to … And I don’t think people understand how complicated the rules in government are around a number of things. And the regulations start with purchasing of supplies, right? So we need more masks for healthcare workers, we need Pure L, which we’ll talk about in a second. Because New York state is now making its own.

Anne Milgram:             Health workers for local departments, we have a situation where we are hoping that healthcare workers don’t get sick, but it’s inevitable that some will. And what will happen if we have a major outbreak in the state or in other States is that you just need access to more healthcare workers. There’s a level of training we generally require, and a lot of hoops people go through that need to be suspended. And it doesn’t mean that we should put people out who have no …I just want to say you just did an excellent job of itching your nose with your pen. I’m sorry. It was distracting. It was so beautifully done.

Preet Bharara:              I’m not supposed to touch my face.

Anne Milgram:             I know, you’re perfect.

Preet Bharara:              So I use my pen

Anne Milgram:             You’re perfect Preet … That was great.

Preet Bharara:              And I didn’t use the tip of the ink.

Anne Milgram:             It’s good you said that.

Preet Bharara:              Why is your nose blue? These are the helpful hints of people who are in the public to keep themselves safe.

Anne Milgram:             So I’m sorry, it was just like it was seamless. I think you’ve been practicing. I’m very proud of you. So even contracting to buy things, there’s usually you have to put out a request for a proposal. You’ve got to get a certain number of bids-

Preet Bharara:              You cut through a lot of red tape.

Anne Milgram:             All of it you cut through. And so it’s buying supplies, hiring workers for health department, even monitoring self quarantine patients. People have to knock and make sure they’re home. And so this is really important and this happens frequently. And so in New Jersey we did them, major snow storms. You can think about hurricane Sandy or hurricane Katrina. There are countless examples where States have invoked States of emergency and it really lets you get extra money. It lets the governor have power to move, push through a lot of regulations. And frankly it lets you … I don’t want to say state bureaucracies are slow, they’re faster than the federal government bureaucracy. But they’re still not fast enough in a crisis like this, unless you suspend a lot of that.

Anne Milgram:             Now there’s always some questions that are raised as to, are we giving our leaders too much power? Does it allow the governor to do too much? And basically, this state of emergency allows the governor through an executive order, which the governor does on his own. It’s a man, which is why I’m saying him. But the governor, he or she will do it on their own and they can temporarily suspend … and New York’s goes through September. But it could be extended obviously. And I think other States may end up issuing them too. But he can extend statutes, laws, ordinances, rules, regulations-

Preet Bharara:              Suspend.

Anne Milgram:             Suspend. Basically means it goes on hold.

Preet Bharara:              That seems like a lot of power.

Anne Milgram:             It’s a lot of power, right? And part of why they do it is that, it’s really important in emergency management to try to see around the corner. And frankly, you can’t completely see around the corner on this stuff. Right? You can anticipate need for healthcare workers, for health care beds, for purchasing additional equipment. But there could be something that happens where the governor basically says we need to do X, Y, Z. It also allows the governor to call out the national guard troops if they need help for any reason. And you see that again in emergencies. Katrina, had a lot of members of the military who went down to assist. And so, there are a lot of things that go into this. And so, it’s a lot of power.

Anne Milgram:             My view is that at this moment in time, it’s the right thing to do. Because the governor and the governments need to be able to respond nimbly. I don’t think … I want to be really clear in saying this. I think there is a huge responsibility on our leaders to be transparent, particularly where they’re being given all this power. And to basically say like, “Here’s what we’re doing, here’s the laws, we’re suspending for X amount of time. Here’s why.” Because it’s scary stuff, and it’s not the way our democracy and our government usually works. But I think it’s a sign of how serious this is and that the governor needs the ability to work through it. And this is true of these eight States. I think it will be true of more.

Preet Bharara:              So the story and coronavirus is changing day by day with respect to closures and social distancing and testing and number of cases that involve fatality. So we’ll be monitoring and everyone else should be watching and thinking about it too.

Anne Milgram:             Yes.

Preet Bharara:              So some other stuff happened in the world of legal news. My former boss, Senator Schumer, got in a bit of trouble when he and others participated in sort of a protest/rally outside the Supreme Court last week in connection with a very important upcoming decision on an abortion rights case. And he got a little heated and a little passionate because he’s very passionate about the issue of reproductive rights. And he made the following statement.

Senator Schumer:         Republican legislatures are waging a war on women, all women. And they’re taking away fundamental rights. I want to tell you Gorsuch, I want to tell you Kavanaugh, you have released the whirlwind and you will pay the price. You won’t know what hit you if you go forward with these awful decisions

Preet Bharara:              And he was rebuked by a lot of folks including Justice John Roberts, who mostly is quiet. He should what people have understood to be rebuke of Donald Trump one time, even though I don’t think he mentioned Donald Trump by name.

Anne Milgram:             He did not.

Preet Bharara:              But on this occasion, he chose to immediately respond to Senator Schumer. And he said this morning, Senator Schumer spoke at a rally in front of the Supreme court while a case was being argued inside. He said … Senator Schumer referred to two members of the court by name and said he wanted to tell them that you have released the whirlwind and you will pay the price, et cetera. Roberts went on to say Justices, know that criticism comes with the territory. But threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All members of the court will continue to do their job without fear or favor from whatever quarter.

Preet Bharara:              Initially Schumer’s press secretary complained about Justice Robert’s not calling to his balls and strikes. And observing a double standard, and suggesting that Schumer wasn’t really saying what those words implied. And then Senator Schumer himself the next day on the floor of the Senate apologized. And he said, I’m from Brooklyn, we speak in strong language. I shouldn’t have said the words I did, but in no way was I making a threat. I never ever would do such a thing. And then he goes on to talk about reproductive rights. People should understand that I worked for Senator Schumer for four and a half years. And I have very strong respect and admiration for the Senator and I owe him a lot. So they should take what I say about this with a grain of salt. I’m self professing a bias. I have a view, but maybe you should say what you think of the whole thing.

Anne Milgram:             Yeah, I mean I’d be curious to hear you on this. I read … we now have so much news coming across our phones and I sort of looked down and saw it, and I was really surprised by it. And so my first reaction was, I feel that this is true now across America, is that you see things in the news and you can’t believe it. You’d sort of think, is that possibly true? I have that reaction a lot with the president. But I also had that reaction with Senator Schumer and in part because he really doesn’t … he can be strong in his words, but I haven’t seen him do something like this. And in particular to name the Supreme Court justices and remember that Trump was just critical to two of the female Supreme Court justices-

Preet Bharara:              And multiple judges around the country when something doesn’t go his way, he’s deeply critical, he’s deeply obnoxious about it on a regular basis. Justice Roberts has mostly said nothing about those.

Anne Milgram:             Right. So let’s talk about justice Robert separately in a second. So the first point I think is, Schumer said something in my view he should not have said. And I respect that he apologized. I think you and I talk about this a lot. We have to take apologies at face value and accept them. And I think it’s a really important part of moving on. But in my view, he shouldn’t have said it and he shouldn’t have named the justices and honestly-

Preet Bharara:              And he said as much.

Anne Milgram:             Yes, exactly. And that’s really important. One of the things George Conway who has been a Republican critic of Donald Trump, Kellyanne Conway’s husband, he’s been on your show. One of the things he said, which I sort of feel like is a little bit right is that, he thinks that Trump is changing the discourse. And he basically said, quote in an op-ed in the Washington Post. One of the bad things about bad behavior by politicians, particularly by Donald Trump because he’s president, but by others as well, is that it not only can encourage bad behavior by politicians of all ideological stripes, but also can be cited to justify it. And then he goes on to say, this is sadly illustrated by Senate minority leader, Chuck Schumer’s disturbing attacks against members of the Supreme court. So I think Trump has done such a terrible thing for our discourse that, I think people are frustrated.

Preet Bharara:              He brought everyone down.

Anne Milgram:             Yes. And so I think that that is a piece of what we’re seeing.

Preet Bharara:              It’s not an excuse.

Anne Milgram:             It’s not an excuse because nobody should be doing it.

Preet Bharara:              But I’ve found myself saying things that are not measured that I wouldn’t have done three years ago. And I’ve seen other people like Michael Hayden and John Brennan and others engage in a certain kind of language. Or Republican chairmans of committees who have said things that they wouldn’t have said before. Because, it almost gets too frustrating not to vent. So I’ll just say this, I was really surprised to hear those statements made by Senator Schumer. I know him fairly well. I talked to him almost every day for four and a half years. And the one thing I will tell you about him, no matter how passionate and strong he feels about issues, he is almost never ad hominem.

Anne Milgram:             He’s not off the cuff.

Preet Bharara:              He doesn’t attack people directly. I’ll give you examples where I am of the view that if you get attacked, you attack back. And there would be times in debate in the Senate where someone, the late, rest in peace, Arlen Specter would be kind of obnoxious and go after Senator Schumer. And I would offer him some obnoxious retort to deliver back and he would never do it.

Anne Milgram:             This is not character-

Preet Bharara:              He’s not, that’s not the kind of politics … And even in looking he had been very, very, very strong and aggressive and passionate about appointments to the Supreme Court and to other courts. But he also made it a point not to attack those folks personally. He attacked … he criticized her ideology, never made threats to anyone of any sort. He mostly sticks to the issues and the facts. So this was an occasion where I think by his own words, he got a little carried away. But what I really resent-

Anne Milgram:             Yeah, I want to talk about Robert-

Preet Bharara:              Is everyone else’s freak out. And it happens over and over and over again. The Trump supporters freak out when one person who has always been good and always been appropriate and always been proper, whether it’s Senator Schumer or someone else says something that they think is a little bit over the line, they go to town on it. Especially ironic, Trump himself attacks other people for the issues that he himself has.

Anne Milgram:             Yeah.

Preet Bharara:              And I’m just about sick of that.

Anne Milgram:             No, I agree. And there’s so much hypocrisy in it. Let’s talk about the Chief Justice too. Because I think that Chief Justice did something wrong here as well. So last week, or the week before, there was criticism of two of the Supreme court justices by the president. He’s the highest ranking political, elected official in the United States. And he’s basically launching on them and saying that they should be disqualified from sitting in judgment on some cases. And it was really inappropriate. It wasn’t threatening in the same way that I think the Schumer language may be felt because it looked like some … the Schumer statement again sort of felt more strong and you won’t know what hits you and such. It’s different.

Anne Milgram:             But Roberts didn’t say anything. And Roberts had said something once before in the course of the immigration debate when the president was issuing directives, restricting access to the United States. And in November, 2018 Roberts had said, we do not have Obama judges, or Trump judges, Bush judges, or Clinton judges. What we do have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for. So he does this thing where Trump has said … has basically called the judge who had rolled against him an Obama judge.

Anne Milgram:             And what Roberts basically says is, “Don’t put politics in this, right? We have great judges. Everybody is trying to do the right thing. And by the way, our independence is a strength.” The statement he just made after the Schumer stuff is twice as long. It names Senator Schumer specifically, which I do not think he should have done. And it really goes, it repeats the words that Senator Schumer used, and he should’ve gotten all of that out of there and if he wanted to speak, he should’ve said, justices know that criticism come with the territory. But any negative or threatening statements from the highest level of government are inappropriate and dangerous. He should have basically just said all members of the court are going to do their job without fear or favor, which is what he says.

Anne Milgram:             But he should’ve done what he did with the prior rebuke of the president, and made it at a higher level and basically said, look, this is something that’s good. The fact that the judges do their job without fear or favor. And by the way cut it out. Stop the name calling them because it’s not the right level of discourse. And it’s not good for the judiciary and it undercuts the judiciary. And so, if there was a way to address it without I think being quite as like … This was a little bit more of a hammer than the last one and felt it felt weird to me also because we just watched Roberts sit through the impeachment trial and say virtually nothing. He did say a little, but he was really quiet and all of a sudden he’s stepping sort of out. And so again I mean I’m very sensitive on this. I think we have to change the level of discourse in our country. But the Chief Justice, he speaks so rarely that when he speaks on something like this, it has an outsize influence and he has to be also careful with what he says.

Preet Bharara:              Look, so feelings are very strong because of what the underlying case-

Anne Milgram:             Yes.

Preet Bharara:              And so we should talk about that a little bit. It’s a case that arises out of a controversy in the state of Louisiana. It’s called June Medical Services. And it relates to a law. And there are lots of laws like this that are being passed in various States around the country that attempt to chip away at abortion rights. By mandating in the name of safety for women, all sorts of restrictions on who can perform an abortion, and under what circumstances. And the Louisiana case, it relates specifically to a regulation that requires that anyone who’s performing … any doctors performing an abortion in Louisiana must be able to have admitting privileges at a hospital within 30 miles of where the abortion is performed.

Preet Bharara:              Which on its face … and the other States have passed laws like this. On its face seems like, well that seems to make sense for a couple of reasons. One, the proponents of the law will say it makes sure that you’re getting a higher quality kind of doctor. So someone who has admitting privileges at a major hospital. That’s a good thing. And then second, if there are complications that arise from the procedure, from the abortion, then there’s a nearby hospital at which the doctor can have admitting privileges and admit the patient. The facts don’t bear that out.

Anne Milgram:             Yes.

Preet Bharara:              And the record in case after case doesn’t bear that out. That actually, abortion is quite a safe procedure, but done by a medical doctor. There are fewer complications-

Anne Milgram:             And there are many other medical procedures that are actually much more complicated-

Preet Bharara:              Like an endoscopy.

Anne Milgram:             Exactly.

Preet Bharara:              There’s still all sorts of things-

Anne Milgram:             Where you don’t need admitting procedures to a hospital.

Preet Bharara:              Right. So there’s a name for these laws that are being passed. People give an acronym to these laws that are being passed. They’re called TRAP laws, Targeted Regulation of Abortion Providers. Where under the guise of trying to give protection and safety and medical health to folks, they’re taking away the rights. And the consequences of passing laws like this, particularly in States like Louisiana. That according to one report, this requirement would actually close every single abortion facility in the state. But for one, and I want to get your thoughts on this. One of the issues at stake here is, the Supreme Court in 2016 it’s not a long time ago actually decided a case that sounds an awful lot like this, wasn’t Louisiana-

Anne Milgram:             It was Texas.

Preet Bharara:              It was Texas. And it’s a case called Whole Women’s Health that was decided 5-3 where they had an admitting privileges law restriction on the books. And the Supreme Court decided that was an undue restriction on reproductive rights on the part of women. And the case was decided by the swing vote of Justice Kennedy.

Anne Milgram:             Justice Kennedy.

Preet Bharara:              Who voted along with the liberals. And a lot of people are asking the question, Senator Schumer and others, why would the Supreme court take up this case when you’re talking about virtually the same kind of thing? Admitting privileges in Louisiana, when you already decided the case one way in Texas, and a lot of observers correctly point out-

Anne Milgram:             There’s one thing that’s different.

Preet Bharara:              The makeup of the court, Kennedy is gone-

Anne Milgram:             And Gorsuch and Kavanaugh are on the bench.

Preet Bharara:              Are on the bench. And now we’ve been talking about Justice Roberts. He will figure prominently here because, he is essentially this sort of the center swing vote on the court. And some people have suggested from the arguments on the case that he may be sympathetic to this idea that the Texas case should govern. What do you think is going to happen?

Anne Milgram:             Yeah, so there’s a lot to unpack there. Let’s just stay on Roberts for one second. Because I think it’s important for people to understand the complexity of this. Which is that, Roberts was in the dissent on the prior Texas case, which is called Whole Women’s Health. And so in that case it was 5-3. Kennedy voted with the liberal justices. Here it’s really a 4-4 breakdown with Roberts being the fifth. And Robert’s previously was in the dissent. Basically, he didn’t agree with this idea that the Texas law should be ruled unconstitutional. He thought that it was a reasonable restriction on the right to an abortion. And so, I think that there are real issues around what Roberts does. I mean, if you just looked at how he’d voted in the past, you would say absolutely, he’s going to vote to uphold the Louisiana law and further restrict women’s rights. But he’s also the chief justice. This isn’t just precedent. Meaning, a prior case that is exactly on point that courts usually follow, it’s really recent precedent. So you’re talking about, essentially-

Preet Bharara:              Four years.

Anne Milgram:             Four years, which is nothing in the sort of Supreme Court jurisprudence history. And so, this is a real question. Let’s also go back just for a second. Because I think one of the things people have to understand, or at least it’s worth, we’ve done work around a number of these cases and some of the other state laws. Because the Supreme court started in Roe versus Wade. Going back, they read this qualified right to an abortion into the 14th amendment of the constitution. And at the time, if you remember, they did it in terms of viability. When was a fetus is viable and most States tended to go between 22 and 24 months. And after viability-

Preet Bharara:              It’s-

Anne Milgram:             Sorry. Yeah. I felt like I was wearing them for a long time.

Preet Bharara:              That was the elephant law. It’s related to the gestational period of those large mammals. Mostly in Africa. Sometimes in Asia.

Anne Milgram:             And It’s separate, yes. And Roe dealt with viability, which basically said around 20 to 24 weeks the fetus became viable and allowed restrictions on who could have an abortion after the viability point. Meaning there’s been a lot of conversation about many States pass laws that said after viability abortions would only be permitted in cases where there was a risk to the health of the mother or it had been a rape or something else. And so Roe sort of allowed this small section of the space to basically be regulated. Then there came a case called Planned Parenthood versus Casey. Which changes Roe in what I think is an important way basically saying that it’s going to allow States to pass reasonable regulations on the right to an abortion. And basically the question is, whether those regulations place an undue burden on women seeking abortions? And so, that is how you get to this point in 2016 where a ton of States, conservative States have passed laws restricting additional state regulations, trying to limit the right to an abortion.

Preet Bharara:              For example, parental consent, consent of the father, admitting privileges, the whole panel-

Anne Milgram:             Even 24 hour … The simpler ones, which we all know have been upheld. 24 hour waiting periods, multiple visits to a clinic. So you can’t just go on the same day and have a procedure performed.

Preet Bharara:              All sorts of ways, provisions, policies in the minds of anti-abortion folks to figure out how to make abortion more difficult.

Anne Milgram:             Yes. So if you step back just for a minute and think about this, what is happening is that, the makeup of the Supreme court has changed. The conservatives count five votes. Roberts has traditionally been anti-abortion, has been in very much against this sort of Roe V Wade, group of cases. And so they’re making-

Preet Bharara:              And he’s upheld I think almost always restrictions.

Anne Milgram:             These restrictions. Yes. And so they’re making this play that, that gives them five votes. And so, that is why this has come back very quickly and not everyone agrees with this effort to do this. Because it could be that Roberts basically doubles down and says no. There’s a precedent and we don’t want to get into this sort of process of-

Preet Bharara:              Well Robert sometimes surprises us. And a lot of conservatives don’t like Justice Roberts because it was a vote on the Affordable Care Act. Right?

Anne Milgram:             Yes, exactly.

Preet Bharara:              But here, from what I’ve read about the arguments, Justice Roberts does seem to be a little concerned, not just about the fact that you have this recent precedent, but this idea if you’re going to decide the Louisiana case differently from the Texas case. Because the impact in Louisiana is different, because it’s very, very fact-based. How many clinics are there, how many doctors can be admitted, all those different really concrete facts, specific differences between Texas and Louisiana. Justice Roberts I think correctly asks, “So how are we going to do this now? Are we going to do with case by case, state by state Supreme Court decision making analysis to decide where it’s okay and where it’s not?”

Anne Milgram:             And the court rarely does that. Right? And so as a rule, the court doesn’t want to be essentially the fact finder. What’s also important is that the 2016 decision and Whole Women’s Health in that decision, what the Supreme court did was they struck down the Texas abortion restrictions because the law quote, provides few if any health benefits for women, close quote. And open quote, poses a substantial obstacle to women seeking abortions, close quote. And so the real point I think that the Supreme Court now is going to have to decide is, that there’s virtually no evidence that there’s a health benefit for women. Again, it’s a remarkably safe procedure-

Preet Bharara:              And that’s not specific to Texas or Louisiana.

Anne Milgram:             Exactly.

Preet Bharara:              Well, and that side of the equation the circumstances are the same. What’s different is, as you point out on the other side of the equation-

Anne Milgram:             The level of the obstacle.

Preet Bharara:              Right.

Anne Milgram:             And whether the court should engage in this sort of factual fact-finding. In Texas, there’s going to be zero doctors in part of the state. In Louisiana, there’s one, is that sufficient. And by the way, the state took issue with the facts that were put out that there would only be one provider that was still left in Louisiana. But it’s very clear that there’d be a significant restriction whether their facts are correct or the plaintiff’s facts are correct.

Preet Bharara:              The other problem is, if we’re really deciding Supreme Court cases that are supposed to be based on principle constitutional law, if we’re really deciding them based on a snapshot in time today, if they’re an abortion provider in this part of the state specifically. But then for all time that jurisprudence is in place, what happens when circumstances change? What happens when that place closes or that doctor moves to Texas or some other state.

Anne Milgram:             Also-

Preet Bharara:              It seems ludicrously locally fact-based to decide a case of this magnitude.

Anne Milgram:             Yeah. And here’s the other question. So there was an editorial in the New York Times that said that the Louisiana law could prevent some 70% of women in Louisiana from being able to get an abortion in the state. Is the Supreme court going to decide it’s okay to restrict 50% of the people or is it 60%, is it 20%? Is that where the court wants to be making a decision and really? Isn’t the point of Casey basically it can’t be an undue burden and there has to be a valid reason for the restriction? And again, I mean my feeling is Roberts is weighing … I’m with you on this. Roberts is really weighing this along with the precedent question and so he could come out two ways on this.

Anne Milgram:             One is, if he wants to find what the plaintiffs, who are the abortion service providers in Louisiana, he could come out and basically say, “Number one, we respect precedent and the precedent is very clear on this.” Number two, he could really go through this point of, the Supreme court should not be doing a fact by fact case, state by state. And there are a lot of States and that kind of means that … I can’t remember how many States have passed restrictions, additional restrictions, but there are a lot. And that means the Supreme court would have to hear … not just in this space, but would potentially be opening themselves up to hear every single factual issue on a new restriction against providers.

Preet Bharara:              There’s one other legal argument that’s being made on behalf of the state of Louisiana in support of this restrictive law. And that is that the plaintiffs don’t have standing and the plaintiffs in the case is the abortion provider. And we don’t have to get into all the details. We talk about standing in some other contexts on the show from time to time. First, as the liberal justices have made clear in connection with the argument, there’s been case after case, after case successfully brought and heard by the Supreme court where the plaintiff is the abortion provider. So when you ask the question, well, who would have better standing? It could be women who are potentially being harmed by this, potential patients or people who are seeking an abortion because the state of Louisiana did not object on the ground of standing until the last minute. The plaintiffs weren’t able to add some of these other folks who might’ve been in a better position for standing.

Anne Milgram:             Right. But that’s also just go back to the underlying reason that there’s been case after case allowing the providers to litigate, which is the following reason. You’re not pregnant forever. Right. And so it’s one of those spaces where, I don’t know, it’s nine and a half months. And so, it’s something that we’ve talked a lot about. How long it takes cases to go through the court system. It’s basically-

Preet Bharara:              Longer than it takes to have a baby.

Anne Milgram:             Exactly. And so basically it means that women would never have the opportunity to have these issues raised. Because of the fact that pregnancy … you have a baby, pregnancy ends and then the case would be moot if you said-

Preet Bharara:              We have this concept, right. We have this doctorate of mootness, so they are in conflict with each other.

Anne Milgram:             Because there’d be no actual case.

Preet Bharara:              There may be a way out if some justices as they sometimes do, don’t want to reach the merits of the case and say, “Well, we’re striking it down because of lack of standing.” I don’t think that solves the question. I don’t think it’ll come out that way.

Anne Milgram:             I don’t think it’s going to be a standing issue-

Preet Bharara:              I think it’ll step up to the merit.

Anne Milgram:             Although I will say, Alito was interested in that argument and it’s a way to really try to again, eviscerate Roe and really step back Roe. Because if you stop saying that the providers can litigate the restrictions that are essentially being brought against them, you end up in a situation where you’re potentially never going to have a plaintiff who can litigate.

Preet Bharara:              Can I make a political point to wrap this up?

Anne Milgram:             Yeah.

Preet Bharara:              To me, it’s really important that Donald Trump be defeated and whatever kind of Progressive you are, Bernie Sanders Progressive up to a Joe Biden Progressive. I know some people will say, “Well he’s not.” But he is, and he’ll be more Progressive even than Barack Obama who was also Progressive the way I understand that term. And there’s some people that are called Moderates and some people are called Democratic Socialists, but they have a shared agenda of different particulars. But they have a shared agenda and one of those items on the shared agenda is the upholding of reproductive rights on the part of women in this country.

Anne Milgram:             And those rights are really under attack.

Preet Bharara:              Yes. And in specifically for the people who support Bernie Sanders or others who think there’s no difference between Joe Biden and Donald Trump. Just consider this one issue. Donald Trump gets reelected. He will probably go from a 5-4 court to almost certainly a 7-2 court.

Anne Milgram:             Agreed.

Preet Bharara:              Abortion is gone.

Anne Milgram:             I agree very strongly.

Preet Bharara:              Just think about that. No matter what other issues you care about-

Anne Milgram:             And Robert’s will not be able to hold any sort of institutional or any precedent-

Preet Bharara:              Because the likelihood that Trump will be in a position to replace both Justice Breyer and Justice Ginsburg is high in the next five years.

Anne Milgram:             Agreed. We also need to say that a lot of damage is already been done. Because Trump and Mitch McConnell have put in not just Supreme Court justices, but countless appellate judges. So the circuit court judges, they have failed those at astonishingly a high rate. At a higher rate than the democratic precedents have done. And so the bench right now is skewing very differently than it did before.

Anne Milgram:             And here, this is an example where the district court judge the mind judge who first handled the case in federal court, found and struck down the Louisiana law, the Fifth Circuit. Which is traditionally conservative. Then ruled to overturn that and to uphold the law. That’s the case that’s gone to the Supreme Court. And so, this sort of way in which the focus of the Republicans has been on courts and the focus of the Democrats has not, shows in many, many instances … And look, there’s a lot of unfairness in the Merrick Garland thing with president Obama. So it’s a longer conversation, but it matters right now for 2020.

Preet Bharara:              The bottom line is, you reelect Donald Trump, Roe is gone. Maybe you like that, maybe you don’t, but I’m guessing Progressives don’t. So don’t be foolish. So here’s another thing that happened in the last week. We talked for a little bit of time about a judge or a justice being criticized. We have an example of a judge criticizing a cabinet official in what is to me is unprecedented terms.

Anne Milgram:             Yeah.

Preet Bharara:              And in fairly a strong and compelling way. That judge Reggie Walton of the DC district court-

Anne Milgram:             And he’s been critical before, we’ve talked about-

Preet Bharara:              Who was he critical of?

Anne Milgram:             He’s critical of Bill Barr. And this case is Electronic Privacy Information Center, also known as EPIC versus the United States Department of Justice DOJ. And basically, this is a freedom of information act case in which EPIC … and there’s also another reporter from BuzzFeed who is also a plaintiff. So it’s a Freedom of Information Act case, a FOIA case in which the plaintiff’s BuzzFeed and EPIC want the release of an unredacted version of the Mueller report. So you’ll recall-

Preet Bharara:              We still don’t have that?

Anne Milgram:             We still don’t have that.

Preet Bharara:              Holy cow.

Anne Milgram:             Yes. And remember, we thought it might be more redacted than it was. It was not as heavily redacted as we thought. But there were still redactions-

Preet Bharara:              So as we go about our business and move on to additional news cycles, there are people fighting still to this day to get an unredacted version of the Mueller report?

Anne Milgram:             Yes. And so what happens here is that, Walton is a senior United States district judge in the DC circuit. He’s appointed in 2001 by George W. Bush. And he was a Pfizer court judge. He was a DC superior court judge. And there was reporting in the Washington Post going back to 2007 that said, quote fellow judges and lawyers who appear before him say that Walton’s decisions do not appear to be guided by politics but by a tough on crime mentality. So he’s not a political judge, he’s sort of a law and order judge. And what is amazing about this is that, he calls Barr out by name for quote, lack of candor and accuses him of making quote, a calculated attempt to influence the public with remember that four page non summary, summary that Bill Barr did of the Mueller report

Preet Bharara:              And then delayed releasing even the redacted version of the Muller report for multiple weeks.

Anne Milgram:             Yeah. So what Walton is basically saying is like, “I can’t trust you and so show me the report.” Right? Show me the unredacted report.

Preet Bharara:              He’s asking to see it himself because he says the … Which is remarkable and astonishing thing that “I, sitting district court judge cannot trust the representations being made in the department because, not to some line assistant, some rogue line assistant or rank and file prosecutor somewhere. But because the Attorney General, of the United States of America has lost credibility.” Here’s what he says specifically, he says, “These circumstances generally, and the Attorney General Barr’s lack of candor specifically, call into question Attorney General Barr’s credibility. And in turn, the department’s representation that quote, all of the information redact from the version of the report released by Attorney General Barr, close quote. Is protected from disclosure by its claimed FOIA exemptions.” He doesn’t trust him.

Anne Milgram:             Yeah, which is, I have never heard something like this against the head of the department of justice. And we’ve seen it countless times whether you’re an officer of the court, whether you’re a prosecutor or a defense lawyer or a judge and it’s presumed. It’s implied that you will follow the rules and that you will be candid with the court, you’ll tell the truth. And so this is basically saying, “You’ve given me all these concerns because you haven’t been candid, not just with the public. With the release of that report.” That report was also given to Congress. And so he’s really calling Barr out. And one of the things I saw after was Harry Litman’s tweet on March 6, where he wrote “In federal court speak, judge Walton’s abrading of Bill Barr was a body slam and it shows DOJ has a terrible credibility problem with the courts and that there may be other days of reckoning.” I mean the body slam imagery is pretty-

Preet Bharara:              It’s very WWF.

Anne Milgram:             Yes.

Preet Bharara:              I don’t think the judge is in the WWF or the WWE.

Anne Milgram:             It’s sort of hard to convey to people how big of a deal this is for people outside the department of justice. But when I read this, I was like, “Whoa, that’s a big deal.” And Barr of course pushed back, but the pushback I thought was a little bit-

Preet Bharara:              Lame?

Anne Milgram:             Yeah, I thought it was a weak pushback actually. It was sort of the original redactions are … we’re done with Mueller’s team, blah, blah, blah. And in my view, it didn’t really say Bill Barr would never misrepresent anything.

Preet Bharara:              Remember just to remind people, Bob Mueller’s team created its own summaries with no classified information-

Anne Milgram:             And Bob Mueller-

Preet Bharara:              It didn’t have to be redacted. And complained about it and wrote letters that we didn’t find out about until later. At the time that Bill Barr put out his misleading summary, Bob Mueller is like, “Why don’t you put out our summaries, we created them for a purpose. So they wouldn’t be misleading and wouldn’t be … do a minimizing of the president’s conduct.” There’s lots of stuff that was in Bill Barr’s summary that made it seem like the president really hadn’t done anything wrong. And then, also he included his own conclusion that the president hadn’t done anything wrong and leaves out all sorts of contexts, and all sorts of conclusions, that are very negative for the president. Which sat in people’s minds for weeks and weeks until the final report in redacted form was released.

Anne Milgram:             Yeah. And just on the substance of this, what this means, it basically means that the judge is going to get a copy of the unredacted version from the Department of Justice. He’s going to review it in his chambers. Nobody else is going to see it, and he’s going to decide whether the reasons that the government has given for redacting the information are sufficient to keep the information redacted, or whether it should go public. And so we don’t know what the outcome will be yet, but it’s what’s most telling is the language that the judge used.

Preet Bharara:              So here’s some other old news that’s come back, shockingly.

Anne Milgram:             Yep. It’s back.

Preet Bharara:              Burisma and Hunter Biden. Which it’s interesting when Joe Biden’s political epitaph was being written, his obituary was being written-

Anne Milgram:             We didn’t hear a lot about that.

Preet Bharara:              No. No one did a thing. It didn’t matter.

Anne Milgram:             But now that he’s the front runner-

Preet Bharara:              Now that he’s the front runner-

Anne Milgram:             Yeah, again.

Preet Bharara:              Likely front runner, I think we’ll know more after the-

Anne Milgram:             Well, he’s ahead in the delegate count.

Preet Bharara:              He is. Literally the day after Biden won South Carolina, I think a Republican Senate committee chair decided he was going to issue a letter and then a subpoena for various things. And you had Lindsey Graham in the last couple of days saying, “Well, of course we’re going to bring this up.” Donald Trump saying, “We’re going to bring it up and talk about it.” What do you make of that?

Anne Milgram:             Well, it’s not surprising and just a little bit more information is that the Senate Homeland Security Committee wants to subpoena a witness. A guy named [Andrey Telejanko 00:48:59], a political consultant who represented Burisma in the US. And there’s also a subpoena that seeking records from BlueStar, which is a democratic public affairs firm. But basically the idea is that, there are these two committees, Homeland Security and Senate Finance, and they are doing what they call a conflict of interest investigation.

Anne Milgram:             And so, this is going to be nonstop. We’re going to hear a lot of about Ukraine and Burisma. One thing that did surprise me, and I’d be curious to know if you’re surprised by this. But Mitt Romney who of course voted for the president’s impeachment. He made a decision to vote with the Republicans on the Homeland Security Committee to authorize a subpoena related to Burisma. And it’s reported that he said, “Well, I want the information to be behind closed doors. Whatever information comes out of the subpoena that it not be a public meeting.” But I don’t think anyone, including Mitt Romney is so naive as to think that that information won’t be made public if it’s helpful to the president.

Preet Bharara:              The one thing that the gap and the intervening fall and then rise of Biden’s political fortunes reveals clearly is, how politically basis was. We go back to the old days of talking about how Donald Trump lies when he says he cares about corruption, he doesn’t care about politics. That’s complete and total nonsense and BS. The only thing he cares about is politics, and in particular his own political fortunes. So I think the fact that you saw them go away and come back, these issues will not resonate, which have otherwise been debunked. But they have the power and authority to issue these subpoenas and do whatever they want to do. The question now is also what will Joe Biden do?

Anne Milgram:             And what would the media do actually?

Preet Bharara:              Yes. Especially if he’s the nominee. And I had upcoming this week on the Stay Tuned Podcast, I have David Plouffe, former Campaign Manager to Barack Obama. Who was very pointed in his view. Which is, if Hunter Biden is going to be on the table then Donald Trump’s children better be on the table. And people who work for Michael Bloomberg, even though he was withdrawn from the race-

Anne Milgram:             Said exactly that.

Preet Bharara:              That people are going to get an education that we’re going to pay for, on Ivanka Trump and Donald Trump jr and Eric Trump and Jared Kushner. Because they had been enriched based on their relationship with the president.

Anne Milgram:             Yeah, they’re political grifters and they mean a lot.

Preet Bharara:              And Biden’s got to do it too.

Anne Milgram:             Yeah.

Preet Bharara:              You’re going to go after my family. We’re going to go after your family. I don’t love that. It’s not a-

Anne Milgram:             No, I agree.

Preet Bharara:              Wonderful place to be in this country at this time, but I understand the impulse.

Anne Milgram:             I personally would be of the view that Biden shouldn’t throw the first punch on this, but I think, it’s clear from the subpoenas rolling out that they’re throwing the first punch. And that I agree that at some point, if this becomes an issue, which it clearly … the president will make efforts and the Republicans and Congress make efforts to make this a major issue, then look, we should have a conversation about it because-

Preet Bharara:              Would you think House Democrats should start subpoenaing the children of the president?

Anne Milgram:             I don’t know enough about what information the Bloomberg campaign and others have at this point.

Preet Bharara:              You need to have information.

Anne Milgram:             I would like … that’s how I liked to work, it’s just it’s free.

Preet Bharara:              No, a lot of people would say like, “Yeah, subpoena them.”

Anne Milgram:             Yeah, I’m not there.

Preet Bharara:              That’s why we get along.

Anne Milgram:             Yeah. But look, it’s been widely discredited, The Hunter Biden piece. We’ve talked about this. It’s a question of judgment, not of criminality or other things. So look, if they’re going to make that part of the campaign, then I think both Biden has to address it head on. And also say, “If the conversation is going to be about judgment and my family’s judgment, let’s have the conversation about you and your family’s judgment.” And again, I don’t like it either, but I think this … we can sort of see it coming and it really was … You and I are laughing about it, but it really was timed exactly with Biden’s resurgence. So I don’t think there’s any question that it’s going to continue through the election. Do you want to talk a little bit about the president’s change of … he does change the people around him frequently.

Preet Bharara:              This is now chief of staff like 31?

Anne Milgram:             Yeah, it feels like that. But four in three years, that’s a high number.

Preet Bharara:              What’s interesting about that, is interesting about a lot of things is, Donald Trump used to have a view on this and there’s always a tweet as they say. Donald Trump, when Barack Obama was on his second or I think his third chief of staff made disparaging remarks about what that meant about Obama. By the way, the other thing he did was, I think he literally tweeted, if the Dow goes down a thousand points in a day, the president should be launched into the sun. Hey, I guess that happened. He also said, based on what I think how Obama was dealing with the Ebola crisis, which I think in hindsight, everyone thinks was handled pretty well.

Anne Milgram:             Yes.

Preet Bharara:              I think he made a modest proposal that Barack Obama must meet personally with people who were suffering from Ebola to show his executive powers. So there’s example after example after example. This is another one of those things. As I mentioned on the show before. One of our guests, my former colleague and friend Dan Goldman, said that he developed a personal relationship with Mark Meadows during the impeachment inquiry. He thought he was a nice guy. Maybe that will make them more effective, and more bipartisan, and remains to be seen. I have seen the video circulating of Mark Meadows to remind everyone that he was one of the original birthers who claimed that Barack Obama was from Kenya and wasn’t deserving the presidency based on that falsehood.

Anne Milgram:             I’m not with Dan Goldman on this, although I certainly respect that you can be adversarial with someone and also develop a level of respect for them or think that they’re a decent person. But I think the jury’s out on Meadows. Now look, we’re in the middle of a national crisis. I would like for him to do an excellent job and so-

Preet Bharara:              I don’t want to switch people out in the middle of a crisis. There are two arguments there, right? One is, well, you kind of want to keep the team you got because they have institutional memory, and they know where all the levers are of power and of government. On the other hand, if you’re not happy with your team, and you think you have an ineffective Chief of Staff at the onset of a crisis, you want to get better.

Anne Milgram:             But here’s the problem. The problem isn’t the president’s team. The problem is-

Preet Bharara:              The president.

Anne Milgram:             Exactly. And so these are really game-time decisions of should you switch your team or keep them. And a lot depends on, can the team serve the role that they need to play in the middle of a crisis? And if the president has lost confidence in someone … And again, but that all assumes that the president is doing a decent job. And here the problem is that the president, it feels to me like he wants to be surrounded by people who do exactly his bidding, who the goals are not the right goals. And so look, I hope Meadows succeeds.

Anne Milgram:             I would very much like the president to do a much better job on dealing with this pandemic. And I remain sort of the view that, this shouldn’t be political, but at the same time I think we have to wait and see how Meadows acts. And look, let’s see. Does Meadows convinced the president to get tested and to stop holding rallies? We’re going to know pretty soon who’s in control and whether a chief of staff should be able to wield a lot of influence over the president and the West Wing. And we’ll know pretty soon whether that’s the case.

Preet Bharara:              So that seemed like a good place to end.

Anne Milgram:             Yeah.

Preet Bharara:              Everyone stay safe. Take precautions.

Anne Milgram:             Yes, very much so.

Preet Bharara:              And we’ll talk to you next week.

Anne Milgram:             Take care Preet.

Speaker 4:                    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 Jeff Eisenman. Our music is by Andrew Dost. Thank you for being a part of the CAFE insider community.

 

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