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February 11, 2019

CAFE Insider 02/11: Bezos, AMI, and TMI

  • Show Notes
  • Transcript

Supplemental materials and references made in the episode:

• The transcript to this week’s episode.

• Jeff Bezos’ post in Medium, “No thank you, Mr. Pecker”

• Bezos’ hired investigator, Gavin De Becker, comments on AMI’s possible “political motive” to leak.

• The extortion statute, 18 U.S.C. 875(d)

• The September 2018 non-prosecution agreement between American Media, Inc. (AMI) and SDNY.

• An interview on ABC’s “This Week” with Elkan Abramowitz, the attorney representing AMI CEO David Pecker. Transcript here.

• An interview on ABC’s “This Week” with Professor Alan Dershowitz. Transcript here.

• Jeffrey Toobin’s analysis in the New Yorker of Gawker’s collapse and its implications for the First Amendment.

• The Daily Beast article reporting that Michael Sanchez, the brother of Bezos’ mistress, Lauren Sanchez, gave the couple’s intimate texts to the National Enquirer.

• Acting Attorney General Matt Whitaker’s testimony before the House Judiciary Committee

• The viral moment from Whitaker’s testimony, where he tells Committee Chairman Jerry Nadler his five minutes are up.

• A Politico article recounting the subpoena standoff between Rep. Nadler and Whitaker.

• Chairman Adam Schiff’s statement on the House Intelligence Committee Investigation and CNN’s report on the announcement and the Committee’s vote to send Mueller transcripts from some 50 interviews it conducted on the Russia investigation.

• Trump’s use of the phrase “presidential harassment” and its origin.

• Trump’s Dr. Seuss-inspired line from the State of the Union, and a Washington Post analysis of Trump’s invocation of Dr. Seuss’s style and rhyme.

• The partially redacted transcript from Paul Manafort’s hearing on 2/4/19.

• A question from a listener, Twitter user @papayapulp, asking Preet and Anne, is it “pled” or “pleaded.”

Thanks for listening to this week’s episode of CAFE Insider. We’ll be back next week. Please email your questions for Preet and Anne to [email protected] 

This is the Cafe Insider Podcast. Your hosts are Preet Bharara and Anne Milgram. The producers at Pineapple Street Media are Kat Aaron, Jenna Weiss-Berman and Max Linsky. The executive producer at Cafe is Tamara Sepper. And the Cafe team is Julia Doyle, Calvin Lord, Vinay Basti and Geoff Isenman. Our music is by Andrew Dost.

Thank you for being a part of the Cafe Insider Community.

CAFE Insider Episode 12: “Bezos, AMI, and TMI

Date: 2/11/2019

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

Anne Milgram: And I’m Anne Milgram.

Preet Bharara: Hi, Anne.

Anne Milgram: Good morning.

Preet Bharara: How are you?

Anne Milgram: I’m good. How are you doing?

Preet Bharara: Did you watch the Grammy’s?

Anne Milgram: I did, I did. Did you watch them? I didn’t watch all of it, I have to say.

Preet Bharara: I did and I think they should rename it the Alicia Keys Show.

Anne Milgram: Yeah, she’s awesome.

Preet Bharara: Someone said she should be hosting everything all the time.

Anne Milgram: I totally agree.

Preet Bharara: And I agree also, so the Oscars she should host. She should host basically every show other than the Café Insider.

Anne Milgram: Right, well, she can be a guest.

Preet Bharara: That would be pretty cool.

Anne Milgram: We could make a section of the podcast about you know you’re old when, because I will say watching the Grammy’s I had a couple of moments where I like-

Preet Bharara: Who’s that?

Anne Milgram: Completely.

Preet Bharara: Well, I have my kids around and they schooled me on some.

Anne Milgram: My kid is not old enough yet, but I need a little … I need either older kids or listen to more radio.

Preet Bharara: You didn’t know about her?

Anne Milgram: I did not. There were a few I was like, Shazam help me out.

Preet Bharara: Right. We’re now embarrassing ourselves. So, let’s get to some things that we know about.

Anne Milgram: Yes.

Preet Bharara: We have … This is a week where we have a lot to talk about. I guess we should start with Jeff Bezos.

Anne Milgram: Yes.

Preet Bharara: AMI. I guess, to recap Jeff Bezos suddenly posted something on the website Medium, where he took the bull by the horns so to speak and revealed in his words, that he was the victim of an extortion attempt from AMI. That’s the company headed by David Pecker.

Anne Milgram: And also the National Enquirer.

Preet Bharara: The National Enquirer. That had already published intimate texts between him and someone with whom he’s having an affair. And now it looked like they were, according to Jeff Bezos and according to some of the texts and the back-and-forth emails that were published, threatening him with publishing more pictures, including pictures of his-

Anne Milgram: What does AMI refer- nether parts?

Preet Bharara: Nether parts. I’m not gonna use the-

Anne Milgram: I never thought we would be talking about this publicly.

Preet Bharara: Genitalia.

Anne Milgram: Yes.

Preet Bharara: I think that’s what they’re called. If he didn’t put out a statement saying among other things that Jeff Bezos’ investigation of how the texts became … Came into the possession of AMI, he would have to say that there was no political motivation behind them.

Anne Milgram: Right.

Preet Bharara: So that’s something very important. So-

Anne Milgram: And he’d been, just to make sure we’re clear, he and the investigator he was using had been out saying that they thought that the original release of those text messages in a January Enquirer publication, that that was politically motivated.

Preet Bharara: Right. And as we know, David Pecker is close to the president of the United States.

Anne Milgram: And Jeff Bezos owns the Washington Post, which is an important newspaper in America that has been critical of the president.

Preet Bharara: Right. And the president has attacked Jeff Bezos, so there’s a lot of back-and-forth and attacks this way and that way. So, it’s not crazy to worry and wonder whether or not there’s some political motivation, but so that was the state of play last week. So, one question that is on the table, I guess, we can talk about given our legal backgrounds, is was that extortion? I mean, Jeff Bezos says flatly it was extortion and blackmail. And the question is was it extortion?

Anne Milgram: Before we even get there, just to step back for one second, it is a crazy thing that Jeff Bezos is sending around photos of himself. Like I just wanna pause for a second, ’cause I feel like I’ve done a huge amount of internet safety and I spent a lot of times when … A lot of times when I was AG, and even still telling young people, “Don’t take a picture of anything that you don’t wanna see on the front page of the paper.

Preet Bharara: The Enquirer.

Anne Milgram: Just don’t do it. Don’t do it. Just when in doubt … And you know, I’ve seen cases of sextortion, revenge porn, this is a very serious matter. And we tell kids don’t do it, we tell young people don’t do it. And then you have the richest guy in the world, runs one of the top companies in the United States of America, taking and sending pictures back-and-forth. So, I just wanna start by saying-

Preet Bharara: This is a public service announcement. So, all of you Insiders.

Anne Milgram: Yeah. Just a momentary PSA, it’s a pro tip, please don’t do this.

Preet Bharara: Don’t do it.

Anne Milgram: Don’t do it.

Preet Bharara: Don’t do that ever.

Anne Milgram: Don’t take those pictures and send them around. Now onto the crime.

Preet Bharara: Okay, so what’s your view? And then we’ll look at the defenses and talk about what AMI’s lawyers are saying and David Pecker’s lawyers are saying. Open and shut extortion case?

Anne Milgram: I don’t think open and shut. I think … We should talk about this a little. It’s a little bit of a strange construction. So if you and I were thinking about extortion, the typical extortion would be I’m gonna publish these nude pictures of you, unless you give me a million dollars. Right?

Preet Bharara: Right.

Anne Milgram: Jeff Bezos … Or a billion dollars, for Jeff Bezos.

Preet Bharara: That would clearly be extortion, right?

Anne Milgram: Yes, that’s the typical case.

Preet Bharara: The more typical case is outside of this context, is the mob guy goes to the restaurant owner and says, “We’re gonna break your windows, unless every week you give us a $1000.” Right?

Anne Milgram: Yup.

Preet Bharara: So, there’s … That’s more typical in the sense that there’s a threat of violence.

Anne Milgram: Yes.

Preet Bharara: And physical destruction of property in exchange for a thing of value. And there’s no debate about $1000 being something of value.

Anne Milgram: Right. And so, here the question is, conversations about reputation, and reputational harm, can that be a thing of value is one of the questions. I would argue very strongly yes, that the law allows for … It doesn’t even have to be … You just talked about property. It could be something that’s tangible or intangible property. And there are plenty of instances in law where we talk about people’s reputations.

Preet Bharara: And should I look at- Shall we just read the statute quickly.

Anne Milgram: Yup.

Preet Bharara: Since [inaudible 00:05:15]people may be wondering, there’s a statute on extortion in the federal code, 18USC875, which makes it very clear that whoever with intent to extort from any person, etc, etc any money or thing of value, which we’ll talk about more, transmits an[inaudible 00:05:31]foreign commerce any communication etc, etc any threat to injure the property or reputation of the addressee shall be fined in this title and imprisoned, etc. So, on the one hand threat to reputation counts under federal law. And one defense on this issue of reputation that I heard Elkan Abramowitz who represents David Pecker on television over the weekend … And Elkan Abramowitz I know, friendly with him, he’s an alum of the Southern District of New York, a very good lawyer, a very accomplished lawyer, and a very successful-

Anne Milgram: A white collar criminal defense lawyer.

Preet Bharara: A white collar criminal defense lawyer.

Anne Milgram: Let’s be clear. He’s not a bankruptcy lawyer or a real estate lawyer, he’s a white collar criminal defense lawyer.

Preet Bharara: Correct. And he … One of his arguments was well, the story was already out. It was already known that Jeff Bezos had engaged in an extramarital affair and intimate texts had already been published.

Anne Milgram: But there’s a real difference with photographs and releasing partially naked photos of someone that you’ve-

Preet Bharara: Yeah, you don’t have a buy-

Anne Milgram: It’s different, I think.

Preet Bharara: Going forward, right? There’s … This was gonna be another traunch of stuff, and in fact almost definition-ally it was gonna have a more serious effect because otherwise you would think that the National Enquirer wouldn’t be threatening-

Anne Milgram: Completely. Yeah.

Preet Bharara: But the whole point is, if you don’t do X, we’re gonna do Y.

Anne Milgram: Yup.

Preet Bharara: And Y is gonna be really harmful to you.

Anne Milgram: Right.

Preet Bharara: So, it doesn’t really fly.

Anne Milgram: Not only really harmful to Jeff Bezos, but also probably really profitable for the National Enquirer. So, if we think about this like if they publish those pictures, they would’ve … Obviously it would’ve been incredibly embarrassing and harmful to Jeff Bezos’ reputation, but also they were basically giving up a financial opportunity, because they would have put it front page of …

Anne Milgram: Even if they didn’t show the full pictures, people would have bought the paper probably to see that. And so, their motivation is something I’m incredibly curious about, because they are desperate. They’re basically making a deal. We’ve got all these photos we’re not gonna put out, in exchange for you to say that our initial story wasn’t politically motivated. Which basically says, to me, that it was.

Preet Bharara: Right.

Anne Milgram: Right?

Preet Bharara: And that goes to the other side of the equation. So, on the one hand the question is, was it a threat to reputation? It seems like it was. And on the other hand, what is the thing that they were trying to get? What is the thing- So, they weren’t saying, “Give me $1000, give me a million dollars,” they were asking for a statement to be put out. And so, was that a thing of value. And it seems to me that based on what you just said a second ago, along with some of the circumstances … The fact that they were willing to forgo whatever profit they would have made by selling papers if they published these photographs and other emails, in exchange for a statement, means that they had calculated themselves that the statement itself-

Anne Milgram: Had value.

Preet Bharara: Was incredibly valuable.

Anne Milgram: I agree. I agree.

Preet Bharara: And the fact that they were fighting so hard to prevent this insinuation of a political motivation on their own part, I think speaks for itself.

Anne Milgram: Yeah. I mean, what’s interesting also is as you’re talking about this sort of two sides of this. On the one side, it’s the threat to release the pictures, which have value, someone would pay for those probably, right? Pay for access to those either by buying the National Enquirer or something else. But also have a reputational harm to Bezos himself. So, there’s reputation associated with that, but then there’s reputation on the other side.

Anne Milgram: It’s kind of a fascinating case, which is all about AMI saying, “Look, you’re out there saying this stuff about us, we want you to say it’s not true.” When as Bezos writes in his Medium post, “I would have had to have falsely said that I didn’t believe that it was politically motivated.” And it’s pretty clear from Bezos’, the way he writes it and the references and the lead investigators publicly said they think that the original actions were politically motivated.

Preet Bharara: I mean, Elkan Abramowitz says on behalf of David Pecker, he doesn’t represent AMI I believe that he represents only David Pecker. He says, “No. It’s not a thing of value, ’cause all they were seeking was the truth.” But putting aside what the truth is or is not, and I think at this point we don’t fully know, but we can discuss it in a second. That they were asking for a specific statement of exoneration on a particular point to be made. They weren’t just simply saying-

Anne Milgram: Contrary to what had been said publicly, right? They’re not saying, “Just tell the truth.”

Preet Bharara: Yeah, and contrary to perhaps what the investigation would have shown, right?

Anne Milgram: Right. Right. And one of the things that went through my head when I first heard this was AMI, David Pecker, they’re under a non-prosecution agreement as part of the Michael Cohen case. And one of the things we should just step back and talk about AMI as a political organization, they did cooperate and they provided information, but remember that they were the conduit for one of the payments to one of Trump’s … One of the women who had said, “I had an affair with Donald Trump.” And so, the money in order to silence the woman, in at least one instance, went through AMI. So, they did act politically on at least one occasion where they were supporting a presidential candidate.

Preet Bharara: Yeah, absolutely. That’s a terrific point. And also shows that unlike other companies, they’re in a particularly sensitive, critical posture. And that is on September 20, 2018 AMI through counsel, signed as you said, a non-prosecution agreement with the Southern District of New York.

Anne Milgram: The Southern District of New York. Yeah.

Preet Bharara: And but it’s publicly available now, and I have a copy of it.

Anne Milgram: So, they get a benefit right? They get a huge- Can you talk us through-

Preet Bharara: Yes. So, a non-prosecution agreement, is a gift to an individual or to a corporation. There are various reasons you might enter into one. And it’s when there is the possibility of prosecuting someone, in this case, campaign finance violation, and the US Attorneys office decides for one reason or a multitude of reasons, to give them a little bit of a pass. And that could be because the crime wasn’t so significant enough for them to extract the blood. It could be that the cooperation is more important. They get to keep the company on a tight leash, just give you a sense of how under the barre- Is it under the barrel? Over the barrel? Where in connection with the barrel-

Anne Milgram: Not in the barrel.

Preet Bharara: Not in the barrel.

Anne Milgram: Over the barrel. Over the barrel.

Preet Bharara: Over the barrel? I think, okay so they were over- I’m an immigrant, I’m slurring. Among other things, a non-prosecution agreement says that AMI is not permitted to commit any other crime-

Anne Milgram: For three years.

Preet Bharara: For three years. And if any point during that period they commit some crime, and it doesn’t have to be a federal crime, it can be any kind of crime. It could be a tax crime, it could be obstruction, it could be-

Anne Milgram: Extortion.

Preet Bharara: Extortion. And it could be a violation of state law or federal law. They can rip up this agreement, and go ahead and prosecute them for the crimes for which they forbore before. And by the way, the statute of limitations during the period of this agreement is told, meaning it’s stopped. So, that they can bring those charges later. On top of that, AMI has a requirement that it shall cooperate fully with this office and any other law enforcement agency designated by this office.

Preet Bharara: In addition, AMI shall provide to this office upon request, any document, record or other tangible evidence relating to matters about which this office or any designated law enforcement agency inquires of it. So, now … So, just think about how incredibly stupid it is.

Anne Milgram: Yup.

Preet Bharara: Even if it’s the case, that there’s an argument that it’s not slam dunk open and shut extortion, when you’re thinking about engaging in this back-and-forth-

Anne Milgram: Yup.

Preet Bharara: With the richest man in the world, who obviously has resources and access to counsel himself-

Anne Milgram: And investigators.

Preet Bharara: And you know that you’re under the yoke of a non-prosecution agreement, I’d think you’d wanna avoid the risk of it looking like extortion. So, I don’t know-

Anne Milgram: And they played a hand where they just assume probably because they do this frequently and get away with it, and intimidate people, they played a hand where they just didn’t think that Bezos was gonna do what he did, which was to basically say, “Look. I’m gonna tell you- I’m gonna release to the world, I’m gonna get ahead of it and tell everybody what’s out there and tell them that I think you’re trying to extort me.” And so, they played pretty risky game, AMI, in my view.

Preet Bharara: Generally speaking, because they’re getting into a fight with the richest man in the world, and there’s the example of Gawker that people have been talking about.

Anne Milgram: Yeah.

Preet Bharara: In connection with the suit that Hulk Hogan made.

Anne Milgram: [crosstalk 00:13:25], yeah.

Preet Bharara: And Gawker no longer exists. And some people have been predicting, I’m not making this prediction, in the last week that AMI is dead, is a walking dead company. But, the other audience, intentional or not for Jeff Bezos’ post on Medium was the Southern District of New York.

Anne Milgram: Right.

Preet Bharara: And there were reports … And look, if I were the US Attorney right now, I’d be having people in my office saying that what do you think about the law here? What do you think about the facts here? Do you think it was extortion or not? And then they have to make a decision about whether they rip up the agreement. Now, there are sometimes when you have a cooperating witness or a cooperating company, and they’re valuable enough that you actually don’t wanna rip it up because they’re still providing you information about other things. But at a minimum here, they have to be considering very carefully whether they cancel the agreement.

Anne Milgram: And there’s three things happening. So, first is whether they would cancel the non-prosecution agreement, which means that they could be prosecuted for their conduct in the catch and kill work with Michael Cohen and Trump that Michael Cohen has already pleaded guilty to. The second is whether or not the federal crime of extortion was committed. Which I think is pretty plausible and I would make an argument that you could make a case for this.

Preet Bharara: I agree.

Anne Milgram: Again, there needs to be more of an investigation, but on it’s face I would be comfortable saying I think this would be something I would probably say, “Let’s go to the grand jury on.” Again, there’s a lot more information you’d need to get, but on it’s face I’m comfortable saying, “Yes there are things of value, and that there’s an attempt to basically strong arm someone.” The last piece is that there’s also a possible state law claim of extortion here, that could be brought. Now, I don’t know if there will be a state investigation, but for that non-prosecution agreement, it does go away if there’s either a state or federal prosecution.

Preet Bharara: Yeah, and they’re required to cooperate with the state authorities also. Here’s the other thing about what you just said, which is so important. That unlike in the normal scenario where you’re investigating something being extortion or not. So, some rich person puts out a post and says, “I’ve been extorted.” The Southern District of New York, like any other prosecutor’s office, would have to send agents, ask for volunteer cooperation, issue subpoenas, do all sorts of things, and they could be resisted, and they could be fought in court. These guys are already under an obligation-

Anne Milgram: Right, to cooperate.

Preet Bharara: To provide every email-

Anne Milgram: Yeah.

Preet Bharara: Every text, every draft. They have no excuse not to provide anything that the US Attorney’s office wants. So, this investigation into whether or not it’s extortion can happen more rapidly, and can happen more thoroughly because as I said, they’re already under the yoke of this non-prosecution agreement. And then a fourth thing, beyond the three you already mentioned, is now you’ve awakened investigators to this idea of are there other extortions?

Anne Milgram: Right. I agree. Bezos mentions that.

Preet Bharara: Are there other crimes?

Anne Milgram: And says a lot of people told us they had to pay because they didn’t have a choic- They had to sort of make a deal with AMI, ’cause they didn’t have a choice.

Preet Bharara: Yeah, and for now the scope of the agreement is that AMI was not supposed to commit any crimes, subsequent to the signing of the agreement, which here is September 20, 2018. And also everything that happened with Jeff Bezos is in the recent time period. So, as an initial matter, I would not be shocked if the prosecutors in SDNY said, “Not only do we want all the documents relating to this alleged extortion-“

Anne Milgram: We want everything.

Preet Bharara: We want everything-

Anne Milgram: Yes.

Preet Bharara: Relating to any possible extortion, or any possible blackmail-

Anne Milgram: Any time-

Preet Bharara: Since this date-

Anne Milgram: Yes.

Preet Bharara: And then maybe you start going before that, too. And so-

Anne Milgram: An instance where they have text messages or photos that they did not publish.

Preet Bharara: It’s one of the most self-destructive business decisions, it seems, was made. And then you have to ask the question-

Anne Milgram: Why?

Preet Bharara: If you assume- Jeff Bezos was acting in a way presumably, for personal reasons, and that happens. But, this was a business that cared so much about getting a declaration that political motivations were not at play in publishing these photos and emails, that this is what they were prepared to risk. It makes you wonder.

Anne Milgram: I mean, there are a couple of other things. First of all, they didn’t even … They made five months under the non-prosecution agreement. They didn’t even make six months. I mean, if you’re sitting in the US Attorney’s office, you have to be sitting there basically being like, “These people. What are you possibly thinking?”

Preet Bharara: And it’s blatant and it’s brazen, and it’s stupid.

Anne Milgram: Oh, it’s brazen.

Preet Bharara: And when people do that, you then start to think to yourself-

Anne Milgram: They do it all the time.

Preet Bharara: They do it all the time.

Anne Milgram: Exactly.

Preet Bharara: And what else are they doing?

Anne Milgram: Yup.

Preet Bharara: I mean, the question of whether or not AMI has committed a crime, the agreement as we understood it, was not that you could only rip it up after you’re prosecuted for a crime and convicted of a crime, it’s in the estimation of the US Attorney’s office. And obviously, it has to be a good faith estimation. So, if there’s flimsy evidence I suppose AMI could go to court and say, “We didn’t commit the crime.” You have some sort of mini hearing on the issue of whether or not the contract had to be enforced. But, if the US Attorney’s office decides essentially in its discretion, and in good faith that there is enough evidence of a crime, separate apart from whether or not they charge that crime, the agreement can be ripped up.

Anne Milgram: And let’s just talk for a second about how an investigation into the extortion here would go, which is that I think you would open up a grand jury investigation, you’d bring in … You obviously have access to a lot of emails, probably. You could get access to the full investigation that was done by Jeff Bezos’ investigator. You would immediately subpoena and ask for that information. You’d also subpoena AMI, I mean hopefully they’d cooperate, but you get all the emails and all the back-and-forth, as you said not just on this, but on other matters.

Anne Milgram: And so, on it’s face it appears to be criminal, but what you would do is go further to make sure that Bezos has … He’s given one version, his version of events. It seems to me very credible, based on what we’ve seen. But as an investigation, you would wanna go out and get everything you possibly could, find out who they talked to, start interviewing witnesses, bringing people into the grand jury, and just be really thorough about that. So, I always hesitate before I say, “Yes, I would charge a crime,” because I wanna know sort of the 360 of something that’s happened.

Preet Bharara: Yeah, absolutely. The odd thing about this is, that I think as of yesterday, Sunday, we’re recording this on Monday morning … Jeff Bezos has indicated that his investigation has concluded that he was not hacked. It doesn’t look like the emails and the photographs were obtained by hacking by a government agency, which was suggested in the Medium post.

Anne Milgram: Yup.

Preet Bharara: But the … It came to the attention of AMI and the National Enquirer because the person with whom Jeff Bezos was having the affair has a brother named Michael Sanchez. And I guess they have concluded in reporting that you and I have both seen, that it was the brother who had access to this. Now, is he guilty of a crime?

Anne Milgram: Right. So, yeah. So, there has been public reporting against the brother. And let’s just stop on him for one second, because he is also something of a fascinating character. And-

Preet Bharara: There’s no full characters here.

Anne Milgram: I know. Some of it you just can’t make up. So, a close associate of Roger Stone, in communication with Roger Stone within days of Roger Stone being arrested on charges being brought by Muller’s team for charges of lying to Congress and trying to prevent a witness from testifying. He’s also associated with Carter Page, who’s another character in this sort of I don’t know, Trump campaign scandals about coordination with the Russian government. And he’s a big pro-Trump supporter. And so, I think that’s where some of the questions about political motivation have also come in.

Anne Milgram: Now, I have a lot of questions about how he got access, if it’s him, as has been publicly reported. Let’s just add one small caveat that he has not acknowledge that it’s him. There’s still some pieces out there. But if it’s him, I have questions about how he got access to his sister’s phone. But yeah, probably it’s a crime. And we need to know more information, but photos belong to a private person. If for example, he gave his- If she had given him her password and said, “You can always be on my phone, you can take any pictures off,” that’s not gonna be criminal. There’s gonna have to-

Preet Bharara: Or if she forwarded some of them.

Anne Milgram: Exactly. If she forwarded them to her brother.

Preet Bharara: And just said, hey guess what-

Anne Milgram: Exactly.

Preet Bharara: Here’s Jeff Bezos.

Anne Milgram: Completely. Then it’s not a crime. If she did not have knowledge that he was taking them off her phone, that’s where I think an investigation to him is really warranted. Again, it kinda depends on their relationship and how this came to pass. But, it is … Can you even imagine? It’s her brother. Right? I mean, it’s one of those moments … It’s … I don’t know what the name of one of those Greek plays is where you almost can’t make up that-

Preet Bharara: Tragedy.

Anne Milgram: Yeah, it’s like a-

Preet Bharara: It’s one of the tragedies.

Anne Milgram: Yeah, but it-

Preet Bharara: The relevance in part of whether or not Michael Sanchez is subject to criminal prosecution, is as we’ve been talking about for many, many months now and everyone’s getting schooled on this, it makes him amenable to flipping.

Anne Milgram: Right.

Preet Bharara: So, if he has the hammer on him, maybe he has information about other people. You said he’s close to Roger Stone.

Anne Milgram: Oh, I forgot to say one other thing. He’s also close to the chief content officer at AMI, Dylan Howard, who sent the first email. He’s the guy that sent the first email to Bezos, where he lists … He sorta characterizes all the pictures that they have. And my favorite part is the last line saying, “No editor would wanna have to send an email like this.”

Preet Bharara: Right.

Anne Milgram: Basically extorting you.

Preet Bharara: It gives me no pleasure.

Anne Milgram: Right. It gives me no pleasure to put you over the barrel.

Preet Bharara: Yeah.

Anne Milgram: But anyway, they also have a personal relationship, a long-standing personal relationship.

Preet Bharara: It’s also crazy that it was an email.

Anne Milgram: It’s crazy.

Preet Bharara: I mean-

Anne Milgram: And one of them was sent by the deputy general counsel of AMI. And so, they’re gonna say, “Look, this was-” Well, Elkan Abramowitz already said it. “This was a legal negotiation.” And so, they’re gonna try to use the lawyers as a way to say, “Well, this wasn’t extortion. This was a legal negotiation.” Now, you can’t use a lawyer to commit extortion. Right? I mean, it’s sort of … You can’t do it through a back door.

Preet Bharara: In other words, yeah you can, but that doesn’t immunize it.

Anne Milgram: Exactly. Sure, you can do it-

Preet Bharara: Yeah.

Anne Milgram: But it doesn’t- Exactly. It doesn’t make it-

Preet Bharara: It doesn’t cleanse it of the extortion attempt.

Anne Milgram: It can still be a crime. Right. That’s a better way to say it.

Preet Bharara: I mean, it’s sort of a clever way of disguising something. If the mob sends a lawyer to the restaurant and says, “If you don’t give my guy $1000 a week, then-“

Anne Milgram: “I’m gonna burn down your restaurant.”

Preet Bharara: “I’m gonna burn down your restaurant. It’d be a shame if something happened to your restaurant.”

Anne Milgram: Still a crime.

Preet Bharara: Still a crime.

Anne Milgram: Still a crime. Lawyer or no lawyer.

Preet Bharara: I saw Alan Dershowitz over the weekend also talking about the first amendment. And the first amendment is very important.

Anne Milgram: Especially- Yes, it is.

Preet Bharara: But it is not- It’s like saying, and not to oversimplify it and to mock it too much, but in the same way that you show up at someone’s door and you say, “If you don’t give me $1000, I’m gonna burn your house down.” That speech is not protected.

Anne Milgram: Also a crime. Exactly. Also a crime.

Preet Bharara: So, clear extortion versus murkier extortion is not protected by the first amendment, no matter what people say.

Anne Milgram: And look, AMI could have gone out and said, “Jeff Bezos is an idiot, he’s a jerk, he treats people terribly.” All fine. It’s different when your language actually crosses a line. And the case law is pretty clear on this. And so, I’m sure Alan Dershowitz would say … I mean, he sort of said, “Everything is covered by the first amendment.” But that’s just not the case. I mean, words can in fact be criminal. And so, I think it’s worth always keeping in mind, particularly freedom of the press and first amendment issues, but I don’t see it here.

Preet Bharara: Right. So, lots of other things happened last week. By the way, do you realize that the state of the union was only six days ago?

Anne Milgram: I know.

Preet Bharara: Right. So, we’re not talking about that ’cause it’s long forgotten.

Anne Milgram: Yeah.

Preet Bharara: It seems like it was 45 years ago. But what happened last Friday all day, was the acting Attorney General of the United States of America, Matthew Whitaker testified in front of the House. How’d that go?

Anne Milgram: I didn’t think it went so well. What’d you think?

Preet Bharara: It didn’t go well for the witness at all. And also in some ways it doesn’t go well for the House, not to rag on the House, since I worked in the Senate. But it’s very, very hard even if you don’t have an extraporous witness to get anything done in five minutes.

Anne Milgram: Yeah. I don’t like the time rounds.

Preet Bharara: So, you have five minute rounds with dozens of people.

Anne Milgram: Why do they do that?

Preet Bharara: Well, ’cause there’s so many members, and everyone wants to take a shot at asking their questions.

Anne Milgram: Yeah, but it’s really inefficient and an ineffective way to- In five minutes it’s really hard to build the kind of momentum to get real answers to questions.

Preet Bharara: Look, in other contexts they sometimes have staffers do the interviewing.

Anne Milgram: Yeah.

Preet Bharara: Depending on whether it’s an investigation or oversight. It’s a little bit more difficult I guess to delegate that when it’s oversight, which is what this was.

Anne Milgram: Yeah.

Preet Bharara: But there was that moment, the famous moment, that if you saw nothing at all about the hearing, you probably saw a clip, or heard a clip when Jerry Nadler was-

Anne Milgram: Yeah.

Preet Bharara: He was speechifying a little bit, and then he asked a question and it went to Matt Whitaker, and he said … I don’t know if he was trying to make a joke or not, but he said, “I see Congressman that your time is up.”

Anne Milgram: Yup. Yup.

Preet Bharara: And that had a very bad reaction.

Anne Milgram: That’s never a great idea to say to a member of Congress who was engaged in oversight of your department.

Preet Bharara: Who’s the chair-

Anne Milgram: Who’s the chair.

Preet Bharara: Who has the gavel and has subpoena power.

Anne Milgram: “Sorry you’re out of time.”

Preet Bharara: Separate from whether or not it’s disrespectful, it’s not bright.

Anne Milgram: It’s not smart. No, it’s not a smart move. Yeah, I had a couple of similar reactions. First I think the five minute rule is a terrible thing, and they need to change it. And they need to figure out if they care about the substance, then they really need to do something different, because it’s almost impossible to get enough information.

Preet Bharara: It’s very easy to filibuster. And he would pause, the witness Matt Whitaker. He would sometimes repeat the question.

Anne Milgram: Yeah.

Preet Bharara: He would- He drank a lot of water. He was very hydrated. But another thing that happens, and we don’t have to be overly harsh about non-professional prosecutors asking questions, but sometimes a question is asked and you wish it would be asked more rigorously, or to be more rigorous followup.

Anne Milgram: Yes, I agree.

Preet Bharara: And so, one of the things that was important to find out from Matt Whitaker was this issue of whether the president had according to news reports, lashed out at him about the Southern District investigation of Michael Cohen.

Anne Milgram: Yup, that’s right.

Preet Bharara: So, great. That was what the reporting was. The verb used in the reporting was “he lashed out.” But that’s not necessarily the way you should phrase the question, if you’re a member of Congress, to the witness under oath. And to say, “Did the president lash out at you?”

Anne Milgram: Right. You’re characterizing it.

Preet Bharara: You’re characterizing it, and the witness-

Anne Milgram: Versus saying, “Did you have any conversation about Michael Cohen?”

Preet Bharara: First, you do that first. And so, you can truthfully answer, “No,” even if there was some kind of conversation, if you don’t agree with the characterization that it was “lashing out.”

Anne Milgram: Yeah. This is 101 for prosecutors and defense lawyers. People will agree with facts, they generally will not agree with your conclusions. And so, if you want to get people talking and you wanna get information, the more conclusions you make, the less likely you are to get information. And so, you have to start, “Did you have any conversation with the president about Michael Cohen pleading guilty or the Southern District’s investigation?”

Preet Bharara: Which is why it doesn’t take five minutes.

Anne Milgram: Piece by piece.

Preet Bharara: So, you start and you establish as you said, the fact of a conversation. And then you try to winnow it down to see about how you characterize it. One thing that we talked about when I was in the Senate, but it’s hard to do, because individual senators have, and individual members have their own staffs, and have their own agendas and priorities … Is we tried on occasion, it never worked, to have sort of a chain system. So, the one member asked certain questions about a meeting or about a policy. And when they are unable to finish-

Anne Milgram: The next one follows up.

Preet Bharara: The next one follows up.

Anne Milgram: Right.

Preet Bharara: But, that kinda coordination is very difficult.

Anne Milgram: I think you said something else. I think you said something else that’s important, too. And we see it in both the D and the R side, which is the speechifying. So, the folks who are asking the questions are so busy trying to give their version of events, that they’re not actually asking the questions they need to ask to get the information. I also found when I worked on the Hill, and I wonder if you agree … There’s not enough listening to ask the right second and third and fourth question.

Anne Milgram: And so, and it is hard, but that’s sort of what you learn being a lawyer in many ways, is the first question rarely gives you the answer. And so, you gotta keep going. And if they’re not- If they don’t understand the substance enough, then you only get … You get a lot of first questions without the followup.

Preet Bharara: This is a quick aside. I used to say long before he became the special counsel that one of the best witnesses on Capitol Hill had ever seen, and I saw multiple times, was Bob Mueller. And the reason is, he did the opposite of what a lot of witnesses do, which is to filibuster, try to get through the five minutes, to pontificate, so they don’t have to get asked the second question. Bob Mueller understood that it’s best to just be straightforward. And sometimes a question will be asked of him, have you ever done X, Y, or Z? And he would just say, “No.” And I would watch members-

Anne Milgram: Yeah.

Preet Bharara: Who didn’t know-

Anne Milgram: They didn’t know what to- Right.

Preet Bharara: Right. And staffs had written for them questions, when he refuses to answer, or when he obfuscates, go down this line of inquiry, and they couldn’t because he just was upfront. He said, “Yeah. No. Didn’t do that.”

Anne Milgram: Yeah. So, two other things just to sort of throw out there about Whitaker. One is that he kept saying, “I can’t talk about the investigation. I can’t talk about the investigation.” But, he is the one that went to the mic and said kinda unsolicited-

Preet Bharara: He did.

Anne Milgram: “I’ve been briefed in the investigation. It’s gonna be over soon.” Which is something you and I would never have said as someone overseeing an investigation. Right? We would never have made that information public in the vast majority of instances. I can’t think of any time I ever did that. So, he was a talker when he wanted to be a talker, and not a talker when he didn’t wanna be a talker.

Anne Milgram: The other is … And again, I kind of agree with your sentiment on this of how you ask questions, but they were pushing him on is the Mueller investigation a witch hunt? And I’m not sure that’s the best line of questioning. But, you have the president’s nominee to be the full-time attorney general who just did exactly sorta what you described with Mueller, who just said, “No.”

Preet Bharara: Yeah.

Anne Milgram: I’ve known Bob Mueller, I don’t think he’s engaged in a witch hunt. There may be things that I don’t agree with, but … And there’s a huge difference. And so, Whitaker to me looked incredibly political. And I did not … He was refusing to answer in a way that I thought, first of all, I don’t believe that neither the president nor a member of the president’s senior team, they put Whitaker in there for a reason, because they knew that he would be simpatico with their view of the Mueller investigation and whatnot. I think. And so, it felt a little bit incredible to me when he just refused to say anything about any conversation with the president or anyone else.

Preet Bharara: He was just trying to get out of there.

Anne Milgram: Alive.

Preet Bharara: Alive.

Anne Milgram: Yeah.

Preet Bharara: And I think based on-

Anne Milgram: And well-hydrated.

Preet Bharara: Yeah. And well-hydrated. Based on the skirmishes leading up to the testimony, you may remember that Jerry Nadler first had a vote on a subpoena even though Whitaker agreed to testify voluntarily. Then the Justice department fired back with a letter, because I do think that Jerry Nadler overplayed his hand a little bit. I think his mind was in the right place, but he got a little over his skis.

Anne Milgram: Yeah.

Preet Bharara: Because it gave the Justice department on Thursday afternoon the excuse to say, “This is unprecedented.” And making it clear that they could fight the subpoena.

Anne Milgram: Right.

Preet Bharara: Unless there’s gonna be a commitment not to serve the subpoena, ’cause he’s coming voluntarily, he is not gonna show up. And at the end of the business day on Thursday, Nadler realizing that the most important thing for him was to make sure the guy shows up.

Anne Milgram: Completely.

Preet Bharara: ‘Cause he’s gonna be out of the job in a few days, and then you’d fight over the subpoena in court for months, and then nobody’s gonna care in a few months. That kinda skirmish you’re gonna see a lot more of.

Anne Milgram: Right. I agree. And what Nadler was trying to do … And I agree with you, I don’t think he did it the right way. He was basically trying to sort of send a message of strength, to say, “Look. We expect you to come in and talk to us. Don’t come in here and just say executive privilege, executive privilege.” And I think he was trying to send that message. He was trying to sort of eliminate the back-and-forth.

Anne Milgram: And part of it might be that Whitaker’s time is so limited, and he’s gonna be out. What I think is really interesting is that, look we’ve seen this with every administration, democrat and republican. It’s part of checks and balances that the Congress switches and then the president has to answer a lot of questions, and the executive branch is subject to a lot of oversight. The executive branch doesn’t like it. And so, they try to drag it out, not answer questions, avoid providing documents to the extent they can.

Anne Milgram: But Congressional committees then issue subpoenas, they consider holding people in contempt, it gets super complicated, because as a rule DOJ decides who’s in contempt and who isn’t. And DOJ is obviously part of the executive branch. So, I think we’re gonna have a lot of conversations about this over the next year or two. But, it’s … It was definitely an attempt by Nadler to say, “This is serious. Don’t play a game with us.”

Preet Bharara: And the other thing he was doing was maybe teeing it up. Because just having a witness voluntarily agree to come testify without a subpoena, and then refusing to answer questions on certain subjects, makes it more difficult to take it to court.

Anne Milgram: Right.

Preet Bharara: Because he’s not in sort of contempt of a particular subpoena, right?

Anne Milgram: Yes.

Preet Bharara: Because his testimony was not compelled. So, maybe he was trying to lay the groundwork for that, and also show strength. But at the end of the day, he probably learned a lesson-

Anne Milgram: Yeah.

Preet Bharara: On how to deal with it. As you say, executive privilege is something we’re gonna be talking about a lot. There’s no clear definition of what it is, and there’s no clear mechanism on a strict time table to resolve those disputes. So, the House is in the same position that we were in when we were in the Senate in 2006, when the control of the Senate switched back to the democrats. And then I was the chief council of the sub-committee, beginning in 2007, in January 2007. And we proceeded with this investigation of the justice department. And there were claims of executive-

Anne Milgram: The firing of US attorneys.

Preet Bharara: The firing of US attorneys and the politicization of the justice department. Which went on for many months. And what ends up happening ultimately is you negotiate and you reach an accommodation. So, I had helped to advise a committee on issuing subpoenas to various people. Those subpoenas were voted up in the committee, and we asked for documents, and depositions to various people. I took a lot of depositions behind closed doors, and then the members had their own hearings after that. And then we would have trips to the White House. We would go and we would meet with … Not necessarily in the White House, sometimes they came to the Senate. But with Fred Fielding who was the White House council at the time, because we had an interest in getting something.

Anne Milgram: Right.

Preet Bharara: And they had an interest in looking like they were being reasonable.

Anne Milgram: And not being obstructions.

Preet Bharara: Yeah. So, nobody-

Anne Milgram: That was also pretty public, too, just to point that out.

Preet Bharara: Yup.

Anne Milgram: That the firings were public. And then the investigation was public. And so, they had an interest in not appearing like … And it was already being reported that there were issues with why people were fired. And so, I think you had a lot of momentum.

Preet Bharara: So, the members of Congress, they do have subpoena power, but it’s not quite the same.

Anne Milgram: It’s not the same as being a US attorney.

Preet Bharara: As a US attorney.

Anne Milgram: Yeah.

Preet Bharara: Yes. Where you have men and women with guns who can go in and search homes.

Anne Milgram: And judges who will put you in jail if you don’t comply or fine you.

Preet Bharara: And a quick time table.

Anne Milgram: Yes.

Preet Bharara: Just, and I think courts have appreciated that when they’re trying to arbitrate between the interest of the executive branch … And by the way, executive privilege is a legitimate thing.

Anne Milgram: I agree.

Preet Bharara: It’s a real thing. And democratic presidents and republican presidents have both asserted it incredibly strongly. It’s a real thing. Oversight is also a real thing. And so, unlike in situations where you have a prosecutor’s office dealing with a company or private individual over an extortion claim, the courts wanna be a little careful about stepping into the politics.

Anne Milgram: Yeah. And remember, the president gets to decide. I’m gonna call this executive privilege. And so, there’s a subjective judgment that gets made there about when they invoke it and when they don’t. And everything the president does is not executive privilege, which is one of the complicating factors. But then, people have to object to that and make legal moves in order to get that information, and then a court gets to decide what should be privilege and what isn’t. That can take a really long time.

Preet Bharara: Can I ask you a question, Anne?

Anne Milgram: Yeah.

Preet Bharara: If … Is that why you think the president spends most of his time in executive time?

Anne Milgram: That’s a very good question.

Preet Bharara: ‘Cause that causes-

Anne Milgram: Yes.

Preet Bharara: Does he think automatically that the privilege-

Anne Milgram: It’s executive time is executive privilege.

Preet Bharara: Executive time is executive- So, let’s talk about two other things really quickly. Adam Schiff-

Anne Milgram: Adam Schiff.

Preet Bharara: Another chairman of an important House committee.

Anne Milgram: The intel.

Preet Bharara: The intelligence committee, also known as HPSCI. So, he basically announced that he has a broad investigation with multiple sub-parts that he’s gonna be conducting himself. So, there’s another example of a chairman asserting his rights under the gavel or with respect to the gavel.

Anne Milgram: Yes. And it was also reported that they’re providing a lot of information to Mueller’s team from witnesses who previously testified.

Preet Bharara: Well, the official transcripts-

Anne Milgram: The official transcripts.

Preet Bharara: There’s something I don’t get about that. So, they provided apparently 50 transcripts of witness testimony, all of which I believe the Mueller team has already had access to, sort of informally or through the D and I process. But this allows them, if they wanna bring a formal charge of lying to Congress, they need sort of the official certified copies-

Anne Milgram: Yes. That they’re under oath.

Preet Bharara: But, is it odd to you that they sent 50? Because you would think-

Anne Milgram: 50’s a lot.

Preet Bharara: You would think that they would determine these three or four, we think, are ones where you might consider a charge.

Anne Milgram: Do you think they’re worried that might get leaked out and then those three or four people would be clearly identified?

Preet Bharara: Maybe. Maybe.

Anne Milgram: I mean, if you send 50, then nobody knows which-

Preet Bharara: And then in the cover letter-

Anne Milgram: Who are the three or four.

Preet Bharara: You’re like, “Look at-

Anne Milgram: Look at these three.

Preet Bharara: Look Don, look at Don Jr.

Anne Milgram: Exactly.

Preet Bharara: Don Jr.

Anne Milgram: Yeah. Or you have- Exactly.

Preet Bharara: Look at that one.

Anne Milgram: You whisper as you hand over the 50. Don’t worry about all of ’em.

Preet Bharara: Look at number seven.

Anne Milgram: But I do think sometimes … I think it would have leaked out probably if they’d sent two, and so it would have created this sort of impression that those folks were likely to be charged, which may not be the case. And so, that might be a piece of it. The one thing I’d say about Schiff’s investigation is it looks very broad. I mean, the one sort of reaction I had is that there are sort of five separate parts of it, a lot of which does look similar to Mueller’s work. And so, there are things that look a little bit different and maybe sort of … Would go beyond.

Anne Milgram: Obviously Mueller’s doing a criminal investigation, and I think Congress in an oversight role, whether or not someone intentionally did something and violated a law is a slightly different question than whether or not for example, the president or other folks around him were compromised in any way in relation to having conversations with foreign governments and negotiating with foreign governments.

Preet Bharara: Yeah.

Anne Milgram: But it does look broad to me. What’s your reaction to it?

Preet Bharara: It looks very broad to me also. And I guess I have two observations. One is, it may be that he’s just trying- And I don’t know if they’re gonna look at all of this … But that he wants to set down the ambit as very broad.

Anne Milgram: Yeah.

Preet Bharara: So he can’t later be accused of going sort of off the reservation. I mean, he’s very- He stands in a very different position from Robert Mueller. But one of the criticisms of Mueller, which I don’t think is well-founded, but it’s made, is that the initial investigation was supposed to be X.

Anne Milgram: Right.

Preet Bharara: Collusion-

Anne Milgram: Right.

Preet Bharara: Interference with the election of 2016.

Anne Milgram: So Schiff’s doing the opposite, and he’s saying, “Everything’s mine.”

Preet Bharara: He’s saying, “Look, everything is mine.”

Anne Milgram: Yeah.

Preet Bharara: The world is my oyster.

Anne Milgram: Yup.

Preet Bharara: And so, depending on what he chooses to focus on, it will be okay at least with respect to his own terms [crosstalk 00:39:04]

Anne Milgram: It’s within the bandwidth of it.

Preet Bharara: And the reason for that, I think is that he can’t look at everything. What people forget is, he’s not the FBI. He doesn’t have the FBI. He has good staffers, they’re staffing up with really good lawyers and investigators. But it is a small group.

Anne Milgram: Yeah.

Preet Bharara: He doesn’t have-

Anne Milgram: That’s very true.

Preet Bharara: He doesn’t have nearly the resources that the special counsel has, the US Attorney’s office has. And so, when I look at this and you may also, from the perspective of having run a prosecutor’s office … And if people came to me and said, “I’m assigning two people to look at all of this,” you’re like, “Well, that’s gonna take you 45 years.” You don’t have-

Anne Milgram: Right.

Preet Bharara: And as we said-

Anne Milgram: It’s true.

Preet Bharara: He doesn’t have the same tools.

Anne Milgram: Yeah. They’re gonna have to prioritize and focus in.

Preet Bharara: Yeah, he has some subpoena power.

Anne Milgram: Yeah.

Preet Bharara: But they don’t have 100 people they can send to all over the world to interview witnesses in other countries.

Anne Milgram: Not to mention that sometimes-

Preet Bharara: And wiretaps and body-

Anne Milgram: Completely.

Preet Bharara: They are limited in their investigative ability. And largely what congressional investigations are about is having things that are in the public record that they can ask questions about, ask for voluntary … They have subpoena power, but ask for voluntary compliance, and then doing things in a public forum, such that there is oxygen lent to their investigation. And the public wants to know what else is going on.

Anne Milgram: Yeah. They’re answering questions that the public has.

Preet Bharara: Yeah. Whether it’s a good faith investigation or a bad faith and with everything about the Benghazi investigation, it had oxygen because there were a lot of people for good or ill, who wanted to know.

Anne Milgram: Who had questions. Right.

Preet Bharara: Who had questions.

Anne Milgram: I agree with that. Both during the state of the union and then in the president’s Tweets in response to the Schiff investigation, during the state of the union, the president talked a lot about the investigations that are happening. And really I think sort of painted them in a negative light. And I would take issue with that-

Preet Bharara: Yeah.

Anne Milgram: In a really strong way, which is that look, the president of the United States gets oversight by Congress and if there’re allegations of criminality that warrant an investigation, that’s the way the world works. And by the way, it’s worked both ways for democrats and republicans over the years. But in response to the Schiff announcement of what it was, Trump kept talking about presidential harassment. He sort of … And it’s a term that McConnell used. And I just-

Preet Bharara: McConnell gave him a great term.

Anne Milgram: Yeah. I can’t get over it. It’s sort of like, it makes me cringe. Sort of is he saying it’s … Sexual harassment is obviously a terrible thing, there are other forms of harassment. It really … It sort of immediately is trying to send this message that the underlying questions are not valid, and that you’re harassing- you’re tormenting me with them in a way that’s not fair.

Preet Bharara: I’ll take a slightly controversial position. No president likes to be investigated. No secretary of state likes to be investigated. And it is somewhat natural to cast dispersions on the investigation, particularly when the people doing the investigation are in fact politicians.

Anne Milgram: Right.

Preet Bharara: There is an element of politics. I don’t like the allegation when it’s made against Bob Mueller or independent-minded United States attorneys. These are members of Congress. And people said it about Devin Nunes, I think it was well-placed there. We’ll see how Adam Schiff and Jerry Nadler and others conduct themselves, but it is not crazy … And I don’t say this lightly, it’s not crazy for a president to try to lay down the predicate-

Anne Milgram: And say there’s political motivation. Yup.

Preet Bharara: Political motivations. It’s more acceptable and plausible when you’re talking about actual politicians and people who may run for higher office one day.

Anne Milgram: Right. Versus Mueller. I think that’s a fair point.

Preet Bharara: Versus Mueller. But the craziest thing, you’ve mentioned the state of the union, which we thought we’d forgotten about, but I guess we didn’t fully forget about it.

Anne Milgram: Sorry.

Preet Bharara: So when he said … So, presidential harassment is a good soundbite, and he can use it, and his base can use it, and they can use it in an argument. And it’s like anything else. If you don’t like an article, you say “fake news.”

Anne Milgram: Yup.

Preet Bharara: If you don’t like a subpoena, he’s like, “presidential harassment.” And it works for him, but … I don’t know who wrote this line. But president Trump said in the state of the union, “If there is going to be peace and legislation, there cannot be war and investigation.” It doesn’t work that way.

Anne Milgram: It’s like Dr. Seuss presidential state of the union for-

Preet Bharara: Build a wall, crime will fall. I didn’t make that up. That was a thing that-

Anne Milgram: He said that. Yeah.

Preet Bharara: Your president said. Now, with respect to part of this thing with the state of the union, I agree with him. If there’s going to be peace, there cannot be war.

Anne Milgram: Right.

Preet Bharara: Is that fair?

Anne Milgram: Fair.

Preet Bharara: That’s fair. But the other part of this, if there’s going to be legislation, there cannot be investigation-“

Anne Milgram: Why not?

Preet Bharara: If the glove doesn’t fit, you must acquit. I don’t think that that’s true.

Anne Milgram: True, yeah.

Preet Bharara: People can do multiple things, and that was not well-considered.

Anne Milgram: I also think that there’s … The one thing about presidential harassment, and I agree he’s gonna keep using it, and it’s out there. But, when you read the sort of original comment that McConnell made, it’s sort of cut the other way. McConnell was saying, “Look, we did this to Bill Clinton, and it kicked back against the republicans. It didn’t’ really work out that well for us.” And so, I think McConnell was sort of saying it, presidential harassment, you’re sort of … Basically people are investigating and going after the president, but it’s not a great idea politically. So-

Preet Bharara: Well, it can be … It depends on how it goes. There’s this question about whether or not members of Congress are gonna request and make public the president’s tax returns. ‘Cause he’s refused to disclose them, ’cause he has this … The longest audit in the history of the world. You have to be careful. Reasonable people, independents and others might think, well-

Anne Milgram: Do you think it’s worsening the taxes now?

Preet Bharara: I think so. I mean, I think everyone assumes that Bob Mueller has them. Adam Schiff had to be very careful in how he talked about the tax returns to say that we’re actually not interested in learning if he cheated on his taxes, or if they show that he’s worth less than he claims.

Anne Milgram: I think the only question is whether there’s a way in which he could be subjected to foreign leverage, right?

Preet Bharara: Influence.

Anne Milgram: And influence. And I think that is an important question.

Preet Bharara: Right. But I think with respect to all these chairs, or these committees, they need to be careful. And having been involved in these investigations, if you’re showing some fruit and you’re showing some real bad conduct in a relatively short period of time, then you’re gonna have momentum-

Anne Milgram: Right.

Preet Bharara: And people will say “Okay, well you’re not barking up the wrong tree,” … I hate the term witch hunt. But it is much easier as I’ve said to apply the term witch hunt and have it stick when you’re talking about political people in Congress, then when you’re talking about independent appointees in the justice department.

Anne Milgram: Yeah. And to your point, I think that’s a great analysis that if you can show that there is value in the investigations you’re doing, I think you get a longer leash to continue those investigations in Congress, if-

Preet Bharara: Yes.

Anne Milgram: You spend six months just asking for everything, and there’s no indication that you’re actually going in the right direction or there are problems, then at some point I think people start to question the validity.

Preet Bharara: And you can’t overstate … And if you’re going down an avenue of inquiry, and it’s not yielding fruit, you must abandon it and move on to something else.

Anne Milgram: I agree.

Preet Bharara: And I think it’s very important … And look, I think Adam Schiff has done a pretty good job of … He speaks very unemotionally, he doesn’t even crack jokes often, that I can see. He’s so reminded about it.

Anne Milgram: Maybe he’s just not a funny guy. I don’t know.

Preet Bharara: I don’t know him well enough to know.

Anne Milgram: Sorry.

Preet Bharara: Maybe he does, maybe he does open mic night every once in a while, and we’re not aware of it.

Anne Milgram: But no, he’s been serious about the work that they’re doing.

Preet Bharara: You just can’t overstate.

Anne Milgram: It’s straightforward.

Preet Bharara: I mean, the more that I think … And I’m showing my bias here in favor of clear prosecutors, the more that the committee folks can act like prosecutors in the sense that they’re not speechifying, they’re trying to get to the facts, they’re being fair about the interpretation of facts. When something doesn’t lead somewhere, they can see that it’s not leading somewhere.

Anne Milgram: And you move on. Yes.

Preet Bharara: And you move on.

Anne Milgram: Yup.

Preet Bharara: Then the more credibility the investigation will have. It’s a tough balance if you’re elected and you oppose the president, right? And also investigating things that are close to the president. It’s a difficult thing to show that you’re being fair.

Anne Milgram: Yeah.

Preet Bharara: But it can be done. And the best way it can be done is if you can find ways to get bipartisan support. I don’t see that happening here. The investigation we did in 2007 was bipartisan, our own inspector was a republican. He was a republican ranking member of the committee.

Anne Milgram: I forgot that, yeah.

Preet Bharara: And his staff, our [inaudible 00:46:53] staff-

Anne Milgram: He had good staff. Yeah.

Preet Bharara: A very good staff.

Anne Milgram: Yup.

Preet Bharara: We worked together.

Anne Milgram: Yeah.

Preet Bharara: And there were some disputes.

Anne Milgram: I don’t think that would happen today.

Preet Bharara: No. And so, it makes it more difficult to explain-

Anne Milgram: But it also makes everything look completely partisan.

Preet Bharara: That’s why I think you have to bend over backwards to show that you’re being fair, to show that you’re not departing too much from prior precedent, and that you’re actually yielding results.

Anne Milgram: Yeah. I still think it’s really important to have investigations where there’s a basis for them, because again, I think oversight pattern-

Preet Bharara: Basis is good, yeah.

Anne Milgram: So much. Look, they shouldn’t just investigate everything that they politically disagree with, but I do think that the American public voted for checks and balances. And part of that is congressional oversight.

Preet Bharara: Paul Manafort.

Anne Milgram: Paul Manafort.

Preet Bharara: Also in the news. There was a proceeding in connection with Manafort’s sentencing, at which one of the top people rank-wise in the special counsel’s office, Andrew Weissmann, some of what he said in court was unsealed. Including-

Anne Milgram: That Andrew Weissmann described an August 2, 2016 meeting in New York between Manafort, Gates and Kilimnik reported to be associated with Russian intelligence, and someone who did work with Manafort, and the person whom Manafort actually provided the polling data during the presidential campaign. That during this time, which is when Manafort was the campaign chair. What Weissmann said about this meeting is he described as being quote “Very much to the heart of the question of the special counsel’s investigation.”

Anne Milgram: And Weissmann went on to say, “There is an in-person meeting with someone who the government has certainly proffered to this court in the past, is understood by the FBI, assessed to be, have a relationship with Russian intelligence,” referring to Kilimnik. And there’s an in-person meeting at an unusual time for somebody who is the campaign chairman to be spending time and doing it in person. And I think the importance of that is that they’re essentially saying, “We’re focused on that meeting.”

Anne Milgram: Manafort is the campaign chair for Trump at that moment in time. There’s a Russian asset there. It’s also been reported that Gates and Manafort left the meeting separately. They sort of went out a back door. What happened in that sort of release of that transcript is it just shows us one of the areas of focus that the special counsel is really focused on this.

Preet Bharara: Which is right at the heart of this discussion of collusion. And right at the height of the campaign, it’s after Donald Trump is the nominee. I think it says something if such a person like Andrew Weissmann says that in open court. And he said a second thing in open court, as well.

Anne Milgram: About pardons.

Preet Bharara: About pardons. And said sort of addressing I guess, the elephant in the room, that maybe Paul Manafort was lying to quote “augment his chances for a pardon.” Which shows also … Which is not unreasonable, but he’s confirmed it, that the special counsel’s office is thinking about the pardon, cares about the pardon-

Anne Milgram: [crosstalk 00:49:47]

Preet Bharara: And is worried about the pardon.

Anne Milgram: Right.

Preet Bharara: Yeah, absolutely.

Anne Milgram: It also … It strikes me as interesting of the things that the special counsel’s office understands what Manafort was truthful about, and what he lied about. And so, them saying that he may be lying about this because of his effort to get a pardon, basically raises a lot of really interesting questions to me of-

Preet Bharara: Yeah.

Anne Milgram: Okay, was he willing to give up himself but not the president? It’s sort of-

Preet Bharara: They have the full picture.

Anne Milgram: Exactly.

Preet Bharara: So they know as you’re saying, where he’s exaggerating, where he’s minimizing, and where he’s trying to curry favor.

Anne Milgram: Really interesting.

Preet Bharara: Alright, we’ve gone a really long time.

Anne Milgram: Yeah, sorry.

Preet Bharara: Now, let’s answer a question from-

Anne Milgram: A really important question.

Preet Bharara: A really important question. It’s probably the most significant thing we’ll be discussing ever. This comes from Papaya Pulp, @papaya pulp. Great name.

Anne Milgram: I love papayas.

Preet Bharara: Dear Preet, as an avid listener to your cast, I’ve noticed that you render the past tense of to plead as plead. Whereas your esteemed colleague, Anne Milgram, uses pleaded. Is there anything else that you ever disagree about? Love the show. Best. Hashtag ask Preet, from Tim. Yeah, so look. I say plead, ’cause plead is shorter, plead is more elegant, it seems better.

Anne Milgram: Oh, ouch.

Preet Bharara: Yeah. So-

Anne Milgram: That hurt.

Preet Bharara: Defend your pleaded.

Anne Milgram: Okay. So, I had a press guy who was a big grammar guy who said pleaded when somebody’s pleaded guilty, and that that was the correct grammatical phrasing for it. If you read major newspapers they tend to go pleaded, although I think that’s changing a little bit. But-

Preet Bharara: So it’s like a secret.

Anne Milgram: But, I support you Preet.

Preet Bharara: So, this was an issue we went back-and-forth on it with the copy editor in my book. I don’t know if you know I have a book coming out. I have 50 minutes to plug it.

Anne Milgram: Can I admit publicly that I’ve read it and I loved it?

Preet Bharara: Yes.

Anne Milgram: I got an advanced copy.

Preet Bharara: You should say that. You should say that everywhere.

Anne Milgram: It’s fantastic.

Preet Bharara: How about you should have a billboard that says that.

Anne Milgram: A tattoo.

Preet Bharara: And I … And so, and I polled five former prosecutors from my office who are now- No, four former prosecutors who are now judges, who are friends of mine.

Anne Milgram: Does the fact that they’re judges matter?

Preet Bharara: No, well I don’t know.

Anne Milgram: They get more credibility than I do.

Preet Bharara: They have lifetime.

Anne Milgram: Yeah.

Preet Bharara: And I asked them … Because in the office, lots and lots of people would say plead when you stood up in court. And I didn’t, a lot of other people did. And I asked these judges, and all four said they used pleaded.

Anne Milgram: Yup.

Preet Bharara: But it’s my book, and I overruled them. And so, I can-

Anne Milgram: I thought that was gonna go a different direction. I thought you were gonna say-

Preet Bharara: I can say- Maybe I shouldn’t be admitting this, this is a spoiler, nobody in my book pleaded guilty.

Anne Milgram: People plead guilty.

Preet Bharara: They all plead guilty.

Anne Milgram: It’s funny-

Preet Bharara: And I stand by it.

Anne Milgram: When I was in court I would say somebody plead guilty, it’s the colloquial way you would say it. But then when I started doing press releases and became AG and was schooled on this by a very erudite press person, I became a pleaded person.

Preet Bharara: Look, I’m very-

Anne Milgram: I stand by it, Preet.

Preet Bharara: I’m very orthodox and traditionalist in lots of other ways, with respect to grammar. I use the oxford comma, also known as series comma. But, plead-

Anne Milgram: I’ll tell you one other. Yeah.

Preet Bharara: Probably also because the people who are getting in my kitchen about pleaded were annoying.

Anne Milgram: One other thing we disagree with I think, I mean … I’m a coffee drinker, and you’re a Diet Coke guy.

Preet Bharara: Yeah, not so much coffee.

Anne Milgram: Yeah. It’s a small thing, but I mean there are plenty of other things I’m sure we differ on. But, that came immediately to mind of can you really trust someone who doesn’t drink coffee? I’ll leave you with that.

Preet Bharara: Okay. So, with that Anne, that’s all the time we have today for Insider. We’ll be back next Monday, so send us your questions to [email protected]

Anne Milgram: And we’ll answer them. See you soon.

Preet Bharara: This is the Café Insider podcast. Your hosts are Preet Bharara and Anne Milgram. The producers at Pineapple Street Media are Kat Aaron, Jenna Weiss-Berman and Max Linsky. The executive producer at Café is Tamara Sepper. And the Café team is Julia Doyle, Calvin Lorde, [inaudible 00:53:44] and Jeff[inaudible 00:53:45]. Our music is by Andrew Dost. Thank you for being a part of the Cafe Insider community.



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