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March 25, 2019

CAFE Insider 03/25: “Don’t Barr Mueller’s Report”

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CAFE Insider: “Don’t Barr Mueller’s Report”

Taped on 3/25/19

Preet and Anne dissect Attorney General Bill Barr’s summary of Bob Mueller’s principal conclusions and look ahead to what’s next.

References and supplemental materials

Bob Mueller
  • Preet’s blurb on Bob Mueller for the Time100 from 2018
  • An article from the Washington Post on the origin of Mueller’s investigation into obstruction of justice
  • A March 2019 Congressional Research Service report: “Special Counsel Investigations: History, Authority, Appointment and Removal”
Bill Barr
  • AG Bill Barr’s letter to congressional leaders summarizing Mueller’s principal conclusions
  • 28 CFR § 600.8 – Notification and reports by the Special Counsel
  • Federal Rules of Criminal Procedure, Rule 6(e) – Recording and Disclosing Grand Jury Proceedings.
  • A tweet from CNN’s Laura Jarrett reporting that Mueller was not consulted on AG Barr’s letter
  • Trump’s response to Barr’s summary
  • An article from Politico about Trump’s written responses to Mueller’s questions (in lieu of an in-person interview)
Rudy Giuliani & charging obstruction when there’s no underlying crime
  • Transcript and video of Rudy Giuliani’s appearance on CNN, where he argues, “it’s almost impossible to have obstruction of justice if there’s no underlying crime.”
  • An article from the NYT on Martha Stewart’s 2003 case in which she was charged with obstruction, but not the underlying crime of insider trading.
Roger Stone
Michael Flynn
  • An article from CNN on Michael Flynn’s cooperation in other criminal investigations
Other investigations
  • A report from NPR on investigations into Trump by other prosecutor offices and congressional committees
  • The DOJ report on the shooting of Michael Brown in Ferguson, Missouri

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Broadcast March 25, 2019

Preet Bharara:      From CAFE, welcome to CAFE. I’m Preet Bharara.

Anne Milgram:      And I’m Anne Milgram.

Preet Bharara:      Hi Anne Milgram.

Anne Milgram:      Hey, good morning.

Preet Bharara:      Now we are, for the first time on this show, not face to face in the studio. You are on the West coast.

Anne Milgram:      That’s right. We’re out in California for the week.

Preet Bharara:      Where I’m going this evening.

Anne Milgram:      It’s really nice. It’s very warm and sunny.

Preet Bharara:      Ask me why I’m going to California Anne?

Anne Milgram:      Why are you going to California Preet?

Preet Bharara:      Oh, I’m there to promote my book. Which-

Anne Milgram:      That’s like a new record.

Preet Bharara:      Which I will say it’s as timely as ever; this book about justice.

Anne Milgram:      You could not have picked a better time as we talk about all these really important questions of democracy and justice.

Preet Bharara:      And what it means to pursue a case. And what it means to not pursue a case, which leads us to what we’re gonna talk about today. Sometimes you wonder which of the seven topics we’re gonna talk about. And sometimes you realize on Sunday evening, that what we’re gonna talk about is one thing, but various aspects of it. Before we get to the Mueller report, as it has become known, I felt like it would be a good moment to take a step back and just talk about Bob Mueller. And I’ve said all along that I think he’s a hero, I think he has served his country well; both in the Marines, where he volunteered to go to Vietnam, and then multiple times as a high-ranking official in the Justice Department. He was basically in semi-retirement, had no need to come back, prove anything to anybody, to take on a thankless job. And for doing that, no matter what you think of the results, no matter what you think he did do or punted on, I think he deserves our thanks, and we should be really happy that we had a person like him, of immense integrity, conducting this investigation.

Anne Milgram:      I agree so strongly, and I think it’s really important to say up front, before we go into the details of the decisions that were made, it’s really important for us just to talk about what an extraordinary prosecutor Bob Mueller is. And really that there are very few people who I think, could have taken on this assignment and done it with such integrity as Bob Mueller. So I think as a country, I agree with you very much, that he deserves our thanks. You and I have said this all along, and I think we have to be careful here, ’cause we actually haven’t seen the Mueller report, we’ve only Barr’s version of the Mueller report; his sort of summary of it, but we have talked many times about the fact that some people will be happy, some people will not be happy, but that you could count on Bob Mueller to have run down the facts, and to have done a thorough and thoughtful investigation.

Anne Milgram:      You can tell from the scope that that’s what he did here.

Preet Bharara:      I totally agree. Maybe we go this way. We talk over all, about the productivity of the investigation. Then talk about the report, and it’s summary, in two parts; collusion and then obstruction, what we can expect to see in what form going forward, and then what the sort of investigative future is for Donald Trump and his people. So did you think that this investigation 2 months was long? People been complaining. Generally, people associated with the president have been complaining about the length of the investigation. 22 months done and report submitted. What do you make of that length?

Anne Milgram:      I think it’s extraordinary. You and I talk about this a lot. This goes back to the fact that really, criminal investigations take a long time. When you look at the number of subpoenas, I think it said something like 2,800 subpoenas were issued. Every time you issue a subpoena, it’s not like you’re just getting one page of documents necessarily. You could be getting 1,000 pages of bank records, or cellphone calls, every time a search warrant is done. It’s just voluminous. To be comprehensive and thorough, you’ve got to interview witnesses, gather documents, look at everything, do grand jury presentations.

Anne Milgram:      And so, to have done this where Mueller charged 34 people, three Russian companies, for a total number of charges; criminal counts brought, for 215 criminal counts. 38 indictments or please. That’s an extraordinary amount of work to have gotten done in this amount of time.

Preet Bharara:      Yes it is.

Anne Milgram:      And don’t you think also, when you look at the Russian side of it, which again, Mueller does not put the president, or the Trump organization in, but just that level of work when you deal with a foreign international country … You know this better than I do. That’s a real lift to do that kind of work well.

Preet Bharara:      Yeah, I know. I totally agree. And just to recite some of the [inaudible 00:04:25] from Bill Barr’s letter, he lays out some of the work done by the special counsel from the special counsel’s own report. You said 2,800 subpoenas, also executed nearly 500 search warrants. Many of those would not be on physical premises, they’d be, I presume, search warrants for people’s email accounts and such. 50 orders authorizing use of pen registers, and as you were saying, 13 requests to foreign governments for evidence; and interviewed 500 witnesses.

Preet Bharara:      And to do that with a team that is not gigantic; at its height, I think it had 19 lawyers, but that has fluctuated over time, so a lot of work, a lot accomplished in a fairly short period of time. And I think compared historically, against the work of other special counsels and independent counsels, it’s actually fairly quick work.

Anne Milgram:      I agree. That’s a great point about historically and how long these investigations have taken. It really is worth noting that they did two parts of the investigation as well. It wasn’t one question. It was two parts and it was pretty complicated to start off with. One other thing that’s worth noting is they did have cooperation from some witnesses, but it’s clear that there also wasn’t full cooperation from others, and that they had to work hard to get a lot of the evidence that they got.

Preet Bharara:      Yeah. For example, Paul Manafort went to trial, tried to cooperate, couldn’t have the benefit of his cooperation because he kept screwing up.

Anne Milgram:      Right.

Preet Bharara:      So Bob Mueller prepares this report. What is annoying to me, and I tweeted about this over the weekend, is that we know somethings about the report. We don’t know how long it is. And maybe I’m overly obsessed with the length of the report, but I think it would say something. People have been speculating for weeks as to how comprehensive the report would be, and that’s the only word that we’ve heard to describe how voluminous it is, but id like to know, is it 100 pages? Or is it 450 pages? And I would like to know each section. And as we’ve been told through the attorney general, Bill Barr, there’s one part that’s about collusion conspiracy, and there’s a second part about obstruction. And I’d really like to know how comprehensive those in fact, are; not just the word comprehensive, but I would like a page count.

Anne Milgram:      I feel the same. I also think it’s fair to say that it’s gonna be a lot longer than Bill Barr’s four page letter that is I think, a very, very high level summary. And again, it’s not Robert Mueller’s summary, and I think that’s important. It’s Bill Barr’s version of Robert Mueller’s report. And one of the questions I had in my mind is whenever I’ve done investigative reports, and I’ve done some that are made public, and some that are not made public, I’ve always done an executive summary. That was not even provided here. I don’t know whether Robert Mueller did one, but usually you would do a five or 10 page shorter version; particularly with a report like this.

Anne Milgram:      I would assume it is gonna be long. I would assume we’re talking more than 100 or 200 pages. I don’t know, but it’s not gonna be four pages.

Preet Bharara:      And also, what’s curious to me is I would’ve expected, and I speculated about this, another thing I’ve been wrong about in the last couple of days, that it would not have been very difficult for Bill Barr and Rod Rosenstein, the deputy attorney general, in the drafting of this summary in a letter, to just consult with Mueller and say, “Hey, here’s what we’re putting out. Does this reflect accurately you think, your report?” Just to get his buy-in. And if it’s a fair summary, then Mueller could have said so. But I understand from a report that Mueller was not consulted on how this summary was done. It doesn’t make the summary not believable; although we can talk about a couple of things in the letter in a minute, but I thought it was probably the better practice to consult with Mueller and say, “There’s this full report. Here’s a summary as we work out the issues relating to what can be disclosed. But the special counsel himself has taken a look at the summary, we’ve consulted on it, and this is a fair, although shortened, representation of the special counsel’s work.”

Anne Milgram:      I agree completely. And I think, again, what we’re seeing from Barr is Barr’s conclusions from the facts that Mueller has laid out in his report. I find that deeply problematic, and I think probably many other people believe that the full report should be shared with the public, and obviously redacted to prevent release of classified information, or information related to ongoing investigations. And of course, you would have to have a court order that gets issued related to the grand jury material, but I find it very problematic.

Anne Milgram:      And this is a question I think sort of maybe goes to some of the fundamental way that this investigation took place, is should you have a special counsel that reports to an attorney general that’s politically appointed by the president? I wanna Mueller speak. I wanna see Mueller’s summary, or Mueller’s report. I don’t want to see Bill Barr’s version of what he thinks Bob Mueller’s report says.

Preet Bharara:      Yeah. I thought it was interesting that it came out so quickly. That’s a point of criticism that you have a report that took two years to put together, because all this investigative work that we’ve been describing in detail, and then in less than 48 hours, you have conclusions based on the report done by Bob Mueller. Some people think that’s too quick. I also had a clue, I thought we all had a clue in how not damaging the Justice Department thought this report was for the president, in so far as Bill Barr seemed to be rushing over a weekend to provide a summary.

Preet Bharara:      So they clearly think that’s true. And probably they think that’s true because of the first part of the report. So again, there’s collusion, and there’s obstruction, and even though we don’t like the word collusion, ’cause there’s no such crime, we’ll use that as a short hand, as people have been using it for a while. So let’s talk about that first. On the issue of whether or not there was interference with the election. A couple of quick basic things, right? The report clearly found that there was interference with the election; and that’s something we’ve known for a long time. But then, the report, according to Bill Barr, and there’s no reason not to credit this, the special counsel’s investigation did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with Russia in its efforts to influence the 2016 U.S. Presidential election.

Preet Bharara:      And they quote directly from the report as saying the investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government, in its election interference activities. That’s a big and total exoneration on that issue for the president. Anne?

Anne Milgram:      I think it is, but I would say this also, that the choice of words is very careful there. So the question I sort of had is there’s no conversation about WikiLeaks. We know that there was not a great deal of communication related, for example, to the hacked democratic emails, directly with the Russian government, that it instead, went through WikiLeaks. So we also know that at a minimum, Roger Stone worked to, and was attempting to, get access to the information that had been hacked; even asking for specific information related to a certain month when secretary Clinton was Secretary of State. So my guess is that they chose the best sentence.

Anne Milgram:      And again, I think this is Barr trying to frame the report. And you and I know this is a sort of old school political tactic, but … And again, I’m not saying that the president hasn’t been exonerated on this, and that the campaign hasn’t been exonerated, but I suspect when we read the report, it will be more interesting than this one sentence, because they did do a lot of investigations into Russia. They probably looked very deeply as we know; even just from the Stone indictment, into the WikiLeaks piece. And I suspect that there’s more here, but that the ultimate conclusion was that Trump personally, and the Trump campaign, did not coordinate, or work with the Russian government to interfere with the election.

Anne Milgram:      And by the way, that is hugely important for the American public [crosstalk 00:12:14]-

Preet Bharara:      Yeah, it’s a good thing. It’s good to find out that the president became president, there’s not sufficient evidence to show his campaign coordinated with a foreign power that’s our advisory.

Anne Milgram:      Yes, very much.

Preet Bharara:      Here’s what I’m thinking about this. There’s this sort of a legal aspect, and a political aspect. And as you keep pointing out, the Bill Barr letter is what is gonna frame the issue and crystallize it in people’s minds. And it may be a long time before we get the full report and see the full flavor. And there may be all sorts of things that we would frown upon in context that we already know about, that can be frowned upon. And Donald Trump saying in open forums at the podium, “Hack the emails and let us know what the emails say. And release the emails.” And all sorts of things that Trump seems to have done. The bottom line though is because the expectation has been set for Bob Mueller, and whether he would find conspiracy to hack or interfere with the election, on the part of American’s associated with Donald Trump’s campaign, all the way up to Donal Trump himself, the fact that that threshold, which is a high one, wasn’t met, kinda takes the air out of that criticism; as a political matter. Do you agree with that?

Anne Milgram:      Yes, I do.

Preet Bharara:      And I see in my twitter feed, and I see people who don’t like the president and want him to be gone, and that’s not an uncommon feeling among a lot of people for legitimate reasons these days, because of abuses of power, and the fulmenting of discord, and not bringing us together, and all sorts of other reasons; that does not mean that this was the way to get that done. And at the end of the day, maybe we’ll find out information about collusion, but my thought is that Congress should do its oversight duty, and should get the report, but depending on what that says, I don’t know how many more fish there are to fry here.

Preet Bharara:      I have one caveat to this, and I just thought of this analogy as you were talking, and maybe people will find this not to be an [inaudible 00:14:04] analogy, but in the criminal justice context, there are times when you investigate someone for criminal conduct. For example, a police officer who is engaged in a shooting, or some other conduct that warrants a criminal investigation. And the police department will put off its disciplinary proceeding pending the outcome of the criminal investigation. And the criminal investigation, at the end of the day, may result, because the laws are tough, and a lot of discretion is allowed to police officers, may at the end of the day, come to the conclusion that you cannot establish the commission of a crime; just like happened here.

Preet Bharara:      Then you make that known. And you give some of the findings over to the police department. And they still conduct a disciplinary proceeding, and they fire the police officer, because the standard for employment … the bar for employment is not have you committed a serious felony, and been proven to have committed it by a burden of beyond a reasonable doubt.

Anne Milgram:      Right. I think we’re gonna talk about this even more when it comes to obstruction, but I couldn’t agree more. I think it’s fair to say the president has done a lot of things wrong. Also, what we know from Barr’s summary of the Mueller report, from that, it appears that Mueller found that the president did not engage in criminal activity related to the Russia interference in the election. Again, the question is, what’s the standard of conduct that we want for presidents? A lot of this comes [inaudible 00:15:27] the 2020 election, but is it just that you’re not guilty of a crime, even though you may have engaged in bad judgment and things that shouldn’t have happened, and have done things wrong.

Anne Milgram:      I think we have to be really honest about saying that Mueller is a criminal investigator, and this was a criminal investigation, and that just because that burden isn’t met does not mean that there shouldn’t be consequences, or that there aren’t other ways that we should be looking at it.

Preet Bharara:      What do you make of this, before we leave collusion and conspiracy, of people [inaudible 00:15:59] out these words? The report states the investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government, et cetera. And people keep asking me, “Do you think that means that there was a bunch of evidence, just not enough to charge?” I’m not sure how useful a line of inquiry that is. I think we need to see the report. And until that point, I don’t know how much [inaudible 00:16:19] there is here.

Anne Milgram:      Yeah. The one question I was gonna ask you is that coordination, according to Barr again, the Mueller team defined coordination as an agreement tacit or expressed, between he Trump campaign and the Russian government, on election interference. That feels to me like it’s not the same as conspiracy. It almost felt to me like conspiracy light. What was your take on that? The coordination language.

Preet Bharara:      Yeah. It’s the same thing because these definitions of coordination, conspiracy, and agreement, are legal terms that lawyers are familiar with; particularly criminal lawyers. But that doesn’t mean that there was conduct by the president in the sense of standing outside and saying, “Hey, I heard you robbed the bank. I think bank robbing is great. Keep robbing banks. And by the way, it’d be great if you give me some of the money you robbed from those banks.” That’s not a conspiracy. You couldn’t charge the person saying those things with conspiracy. There was no agreement, but hey, you’re kinda benefiting from bad conduct in a kind of gross way. And that is, I think, what has alarmed people in terms of the public statements by the president.

Preet Bharara:      And at the end of the day, that’s why the investigation in part, made sense. There are a lot of people saying at this point, just to go back to an overall issue, that, “Why did we engage in this investigation in the first place? It was a waste of money. It was a witch hunt.” Well certainly it’s not a witch hunt because of all the productivity, and all the charges that were brought, but also, there are reasons why you do an investigation. You don’t do an investigation when you have proof beyond a reasonable doubt, on day one. If you could say about every investigation that doesn’t result in a criminal charge, that it was a waste of money, that’s nonsensical. Obviously, on day one of any investigation, if you’re keeping an open mind, and you’re aware of your bias, and you’re trying to do a thorough and thoughtful job, sometimes it’s gonna lea to a prosecution, sometimes it’s not.

Preet Bharara:      That’s the way it is.

Anne Milgram:      Yeah, that’s right. I think it’s also worth, just sort of contrasting the way that the president and his campaign handled learning about the fact that the Russians had acquired hacked emails, which they did far in advance of their being released. And we’ve seen other examples where presidential campaigns are offered access to hacked materials. And almost uniformity, those campaigns have gone to the Federal Bureau of Investigation to let the FBI know, “Look, there’s some wrong doing. We’re not involved, but we want to give you a head up. You investigate or do what you want.” And the campaign didn’t do that. They sought to take advantage of that, or to use it to their advantage.

Anne Milgram:      And again, that doesn’t make it a crime, but it doesn’t make it right either.

Preet Bharara:      I don’t think there’s a lot to be proud of. At the bottom of page two of the Barr letter, the attorney general says, “The special counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in these efforts; despite multiple offers from Russian affiliated individuals, to assist the Trump campaign.” So on the one hand, yeah. You got these offers, and they didn’t end up finding evidence that they conspired with them, but it’s not like they got multiple offers and then went to the FBI as you say, and said, “Hey, you should know about this. This is bad stuff. We don’t wanna have any part of it.” They clearly didn’t take that [inaudible 00:19:38].

Preet Bharara:      So that takes us to, in some ways, the more controversial part of the summary because it’s the more controversial part, I suspect, of the Mueller report, and that is obstruction of justice. Now with respect to this, I think the contrast is important. On collusion, the special counsel said didn’t establish a crime. On obstruction, what does special counsel Mueller say? It’s very interesting, right?

Anne Milgram:      Yes. It’s incredibly interesting.

Preet Bharara:      So Bill Barr’s letter describing the Mueller report, says that unlike in the collusion case, where the special prosecutor did not find that a crime was established, with respect to obstruction, the special counsel did not make a determination, and says the ultimately determined not to make a traditional prosecutorial judgment, draws no conclusion one way or another as to whether the examined conduct constituted obstruction. And goes on to say that the Mueller report sets out evidence on both sides of the question, and leave unresolved, what the special counsel views as difficult issues of law and fact.

Preet Bharara:      Then interestingly, quotes from the special counsel report in a way that’s not helpful to the president, but obviously Bill Barr must have known this would become public at some point, and he’d look terrible for concealing it, special counsel states that quote, “While this report does not conclude that the president committed a crime, it also does not exonerate him.” Do you find that extraordinary?

Anne Milgram:      I find it extraordinary. I really do. What’s fascinating about this, and I think we have to break this down into a lot of different parts, which is that firs of all, Mueller made a decision not to make the ultimate prosecutorial judgment, which is basically … I’ve done this in reports, and I’ve obviously … we’ve gone to grand juries personally and had attorney’s who worked with us go to grand juries. He didn’t make that decision of could this, or should this case have gone to the grand jury, if the president could have been charged. And there are a couple of things I think if we could just sort of go high level. The first is, what’s fascinating about this letter, is that almost every letter I’ve ever written related to an investigation that was not ultimately prosecuted, sets out the legal standards and really talks about what standard is being used in the letter.

Anne Milgram:      This doesn’t. It’s pretty clear to me, and I think we should talk about it, but it’s pretty clear to me that Mueller presents the evidence and we should do the thought exercise of, what do you do when you think you have probable cause to charge a case, which is the legal standard; meaning-

Preet Bharara:      But not proof beyond a reasonable doubt.

Anne Milgram:      Exactly. And I think maybe it’s worth just sort of digressing on this for a second to say that prosecutors look when it comes to the grand jury, or charging a misdemeanor, the question is, is it more likely than not that a crime was committed by this specific person? So the probable cause standard, it’s almost 51%, right? It’s more likely than not, something happened, but when you go to trial, it’s a different standard, right?

Preet Bharara:      Yeah. I talk about this a bunch in my book. I didn’t want too many minutes to go by. But let me ask you this question though. Did you have any expectation that there would be a punt like this? I didn’t. And when I first-

Anne Milgram:      I did not.

Preet Bharara:      Yeah. So when I first read it, and it was fever-pitch yesterday evening, and everyone’s trying to read the letter, and I was watching, as I like to say, the breathless reporting on television, and I first read it, and I was really disappointed because I didn’t get it. Isn’t that what the special counsel was for? Isn’t that the point? And you take the first issue, collusion; and sure, it was an easier decision, I guess, to say that it was not enough established evidence of a crime. And this other issue, that by the way, is the whole reason there really is a special counsel, the whole reason that Bob Mueller exists in this capacity is because he fired Jim Comey, and it looked like maybe he was trying to obstruct the Russia investigation, and that’s what caused Rod Rosenstein to bring the bomb; to explode the nuclear bomb of the appointment of special counsel.

Preet Bharara:      That emanated, not from Russian collusion and conspiracy concerns, that emanated from a deep concern on the part of a lot of people that there was obstruction going on here. And for him to punt on it, my initial thought was, “Wow, that seems like an [inaudible 00:24:00].” I thought about it more, and my view is not as harsh given the stakes, given seemingly the closeness of the question, it seems to me that he was trying to … and I’ve been using this semi-awkward analogy for the last couple of days. It seemed that Bob Mueller was punting to Congress, then Bill Barr ran on the field, grabbed the football, and took it in for a touchdown for Trump out of the blue, kind of from the bleachers. How do you feel about the fact that Mueller sort of punted that question?

Anne Milgram:      So I do think he punted the question. And I agree with you. My initial reaction was a harsher one that my sort of second reaction. My initial reaction was … and we should talk about his in depth in a second, but my initial reaction is that there is evidence of obstruction of justice. The president did not give an interview. He submitted written answers on the collusion piece, but he did not address the obstruction question, and that Bob Mueller was faced with evidence of wrong doing, but a very difficult case.

Anne Milgram:      And obstruction turns very much on the intent of the person; whether or not the president was trying to corruptly persuade or influence Jim Comey or others. So there really are serious factual questions here that I think Mueller would have struggled with. So I sort of, in my mind, ask the question of, is it possible that there was probable cause to charge, but not prove beyond a reasonable doubt to convict. And that if that were the case, what would Mueller do? What would you do? What would I do? That’s the thought exercise that got me to be more sympathetic to Mueller, and to ultimately sort of want to ask you this question of is there a deep flaw in the process through which Mueller was appointed?

Anne Milgram:      He was not given the ultimate decision-making authority. He was given under the letter, under the regulations, which I now think need to be completely redone, and perhaps there needs to be a new and different special counsel statute passed by Congress, but he was only given the authority to give a report to the attorney general. And so your read that he was doing this for Congress to say, “Hey, here’s the evidence of this. Here are the challenges with the case.” I would be very surprised, and let me ask you this. Do you think Mueller would have said there’s evidence on both sides? You think he would have framed it like that specifically?

Preet Bharara:      Heres how I think about it. I think the take away should be, there is substantial, significant, serious, credible evidence that the president of the United States obstructed justice; otherwise, he would have answered this question the same way he did the collusion question. It’s also clear that the special counsel may view the president as different from other people. And that is, ordinarily, if you have a regular, every day Joe citizen, whom you’ve investigated for obstruction, it’s a binary choice, right? You make the decision to pursue or not. And my thought is in cases that are really close, where you’re gonna think about proceeding with criminal charges that will result in the separation of that person from his liberty, and it’s really, really close, I think you don’t bring the case.

Preet Bharara:      You call it a day, and you say the tie goes to the runner; the runner being the defendant in this case, because the criminal justice system should operate that way. And the benefit of the doubt, not just at trial, but also in the charging phase, should go to the defendant. He didn’t do that here. He could’ve just said, “Look, it’s a close question.” And so the general practice in pursuit of justice, and in the interest of justice, should be, “You know what? We don’t fully have it. It’s too close.” In those circumstances, you walk away. He knows that there’s another avenue of accountability and chose not to say, “We don’t recommend a charge, there’s not a charge. Leave it to Congress.”

Preet Bharara:      So as I think about the way in which he must have perceived the status of the president and the quality and quantum of the evidence, he must have been thinking about Congress.

Anne Milgram:      Do you think that he was considering either sort of the state of American democracy and the fall out-

Preet Bharara:      Yeah, I think so. I do, because you know what? It’s a big deal; particularly if it’s a close question.

Anne Milgram:      I also wonder was he thinking about the institutions? I think Mueller is both a patriot, but I also think he’s a big advocate for the institutions of the FBI and the Department of Justice. So there is something of that here too. He deferred to the attorney general. I think we should also be clear though, and I’ve now read this letter a number of times, and I think what Barr says very clearly, and I might be reading into this a bit, but he says, “The special counsel, therefore, did not draw a conclusion one way or the other.” He then goes on to say, “The special counsel’s decision to describe the facts of his obstruction investigation without reaching any legal conclusion, leaves it to the attorney general to determine whether the conduct described in the report constitutes a crime.”

Preet Bharara:      Yeah.

Anne Milgram:      I don’t think that-

Preet Bharara:      No.

Anne Milgram:      Yeah.

Preet Bharara:      Yeah. I had the same reaction that it seems like you’re having; that if you read it quickly … and my first thought was whoa, wow. I guess Mueller wanted Barr to weigh in, which doesn’t make a lot of sense given that it was supposed to be up to the special counsel, but that’s not what the letter says. It’s very cleverly worded. He didn’t say, “The special counsel left it to me.” He said, “The special counsel’s decision leaves it to the attorney general.” Meaning there’s now like a vacuum-

Anne Milgram:      There’s a void.

Preet Bharara:      There’s a void.

Anne Milgram:      Yes.

Preet Bharara:      … that I, Bill Barr, and Rod Rosenstein, are gonna rush into to fill. Now, on the one hand, it’s not crazy of the attorney general, knowing that there’s this sort of this pregnant issue now, to rush in and fill the void to try to get past it, knowing what views he has, but it kinda puts a cloud over the whole thing.

Anne Milgram:      It is a little crazy though. It’s a little crazy for two reasons. One, we’ve all agreed, and we’ve talked about many times, the fact that there’s Department of Justice policy that says the president cannot be charged. So Mueller does not make a recommendation as to whether or not the president has committed a crime. Barr does not need to address that. There’s no compelling reason that Barr needs to address that issues. It’s not like the president is gonna be charged under existing DOJ guidelines, which I assume the sworn attorney general for the United States would follow.

Anne Milgram:      The second piece is that you’re right. I think Mueller was writing this for Congress, and was writing this for another sort of judge and jury to weigh. What Barr does, is he basically steps in and he takes it all. And the language he uses, where he’s talking about he and Rod Rosenstein, where he says, “Rod Rosenstein and I have concluded that the evidence developed during the special counsel’s investigation, is not sufficient to establish that the president committed an obstruction of justice offense.” He’s not just deciding whether or not the president could be charged with a crime, he’s deciding the president’s guilt or innocence. And there he’s saying the president is innocent.

Anne Milgram:      And that to me, goes well beyond … The attorney general is not the judge and jury. So it really is kind of an extraordinary thing he does that leaves us in a position where he’s now framed this in one way. The media has followed that framing. And I think he’s been an effective politician in some ways, at defining the issue in a way that I sincerely doubt Mueller intended.

Preet Bharara:      I agree. I think he went in where he didn’t need to, and he did it for a particular reason, and that’s why it’s gonna leave a certain imprint on the mind of the public. I also think it’s fascinating that the special counsel folks not only, as you might expect in the real world, pay attention to the words of the president, but they had an expectation of what the president might say, and use this phrase, “It also does not exonerate him.” Nonetheless, the president’s taken to the airways immediately and said it’s a total exoneration.

Preet Bharara:      Now he may be basing that on the fact that his hand picked attorney general came in, and after the special counsel says he’s not exonerated, the AG exonerated him. But it puts a cloud over the whole thing. One of the basis on which the attorney general citing to the Mueller report, says that he thinks the president is in the clear, is this. Bill Barr’s letter said, “We noted that the special counsel recognized that quote, the evidence does not establish that the president was involved in an underlying crime related to Russian election interference, close quote. And that while not determinative, the absence of such evidence bears up on the president’s intent, with respect to obstruction.”

Preet Bharara:      This has been an issue that people keep talking about. How can you be liable for obstruction of some investigation that itself did not result in a provable charge? What do you say to that?

Anne Milgram:      Yeah. I was gonna ask you the exact same question, because-

Preet Bharara:      I asked you first. You gotta answer.

Anne Milgram:      You did. That’s crazy talk. It’s not consistent with existing law or cases that you and I have both seen. There are times where you’re in the middle of an investigation, a very serious investigation, and someone takes pains and efforts to obstruct that investigation in a way that is lawfully provable, and it turns out that while you cannot prove the underlying subject of the investigation, you can prove that someone obstructed the investigation. It all goes back to this sort of purpose of obstruction, which is to make sure that people do not try to interfere with law enforcement investigations.

Anne Milgram:      So you charge that person, and that person goes to trial, and we’ve said this before as well, people are often convicted of crimes like false statement and obstruction of justice because it’s not the crime, but the cover up that often gets people in trouble. So this is a classic example where the Department of Justice has signed off on charging obstruction cases without charging the underlying crime. I don’t know if we could even count the number of times that that’s happened nationally. Then for them to say here that … they say it’s not dispositive, but even in saying it’s not dispositive, that makes it seem as though it’s extraordinarily important. So it’s not the main factor, but it’s one of the critical factors.

Anne Milgram:      This particular sentence really troubled me. What did you think of it?

Preet Bharara:      So I generally agree with you. I think however, that in the real world of prosecution, depending on the circumstances with respect to the underlying crime, the underlying investigation, which you think has been obstructed or interfered with, it matters a little bit that if you got a case where it turns out the end of the day, there’s no legal theory under which someone could have been guilty of the crime being investigated, right? Because of impossibility, or something else, but they still, they shred documents, or they do some other thing to obstruct because they didn’t know that it was a crime, or some other reason. It’s not as compelling a case to the jury.

Preet Bharara:      You think about it, it’s subject to a certain kind of common sense criticism, even though the law says otherwise. People could be talking about the Martha Stewart case as an example, and I thought it was a good and righteous prosecution, but I also understood the criticism; and it got a lot of criticism because there was no prosecution on the underlying crime of insider trading, which was the investigation that she obstructed. And she absolutely did. And people have forgotten now, of how brazen her obstruction was. And she got convicted and went to prison for it.

Preet Bharara:      But that doesn’t mean that you love to bring a case where there’s no underlying case that was, or could have been brought. It doesn’t feel as strong going to a jury for that reason. And that’s not nuts.

Anne Milgram:      But I think that’s a different situation than we have here, which is … and I think you’re right, which is that if you were investigating something that you ultimately decided could not have been a crime, for whatever reason, then it does feel weird to charge someone, and prosecute someone with obstructing that. Now if they killed a witness in an effort to keep that witness from testifying, even though it was impossible to have committed the crime, you would prosecute them for murder.

Preet Bharara:      Yes, of course.

Anne Milgram:      So we should be clear that we’re really arguing in many ways. It depends on the facts and circumstances. But here, I think there was a lawful investigation into whether or not the campaign conspired, coordinated, in both the hacking of the computers and the emails of the DNC, and also, in the release of those emails. And those could have been campaign finance violations and computer crimes. So those are lawful crimes. So I think my problem with that sentence is that you don’t get to pick and choose when and how you apply laws, and policies, and procedures. The Department of Justice has long had a practice that its viable and acceptable to charge obstruction, or false statement, even if you don’t charge underlying crimes.

Anne Milgram:      Ultimately, because the act of interfering with an ongoing investigation, at that moment in time, you don’t know whether a crime has been committed, and that person doesn’t know what you know and don’t know. So they’re trying to stop you from finding out. [crosstalk 00:37:30]-

Preet Bharara:      No, absolutely. Because one of the purposes of the criminal justice system is to deter bad conduct. And if you said, “Hey, take your shot. Obstruct away,” because if there was a rule that said, “Unless you get charged with the underlying crime, we can’t bring an obstruction case against you.” Think of how that incentivizes people who are under investigation, to go ahead and obstruct. You can’t have that. It’s [inaudible 00:37:52], and it’s ludicrous that you would say that there’s a rule of law or common sense, ultimately, that says in every case where someone is not charged with the underlying crime that was being investigated, you can’t charge obstruction, which it seems to be what Rudy Giuliani has been saying on television for the last day and a half.

Preet Bharara:      I meant to ask legal Twitter, people who have an interest in going back and looking at the historical record, to see how many cases Rudy Giuliani brought when he was the United States Attorney, an obstruction case against someone when the underlying crime that was being investigated did not result in a charge? I bet it happened a number of times.

Anne Milgram:      That’s a great question.

Preet Bharara:      If you guys are listening out there, if you’re an insider, let me know the answer to that question.

Anne Milgram:      Preet, I have two more questions about this same paragraph, which I sort of have now read multiple times, but there’s two other things I noticed. One is Barr says in cataloging the president’s actions, many of which took place in public view, the report identifies no actions, et cetera. There are a couple of places in this letter, I think at least two, where he says many aspects of this are already in public view. Which definitely implies, number one, not all of it is, but number two, that the fact that they’re in public view makes them somehow less problematic. What did you make of that?

Preet Bharara:      It doesn’t immunize actions. It’s so weird. Clearly when things happen behind closed doors, and they have an aspect of secrecy about them, it tends to cause you to tick up in your view of their nefariousness, right? So if someone’s hushed in the corner and saying, “Hey, do you have those emails? Give me those emails.” If you’re arguing that to a jury, you would say, “Look. Look what he did. He was hiding it. He didn’t want anybody to hear about it.” And certainly, that increases, I think the [inaudible 00:39:41] value. But it can still be a big deal. If you’re so brazen and you’re a mobster, and you tell your cohort in front of 50 people, “Hey, go kill that lady that’s bothering me.” Then later, the person goes and does that.

Preet Bharara:      The fact that you gave the direction in front of a lot of people, I guess you would argue, “Well, he didn’t really mean it, ’cause why would he say it in front of 50 people?” But if you’re a certain kind of person, with a certain kind of personality, and a certain kind of brazenness, maybe you would. And it does not take off the table, the idea that it was wrong, and it could be part of a criminal charge.

Anne Milgram:      Yeah, I agree with that. The other thing I noticed, and maybe I’m making too much of this, but I wanted to ask you about this, is that Barr goes out of his way to catalog the sort of elements of obstruction of justice; ultimately to be convicted at trial, you would have to prove beyond a reasonable doubt that a person, number one, acted with corrupt intent, number two, engaged in obstructive conduct with a sufficient nexus connection, to a pending, or contemplated preceding. He’s basically really, I think, pushing this point of saying, “And.” So it’s not enough just to prove, one, that he acted with corrupt intent, or engaged in obstructive conduct, or there was a sufficient nexus to a pending, or contemplated preceding, but he really goes out of his way to sort of say, “You need all of these, and we didn’t find that all of them are present.”

Anne Milgram:      Does that make you feel like some, or many of them, are present when you read this?

Preet Bharara:      Yeah, well look. Again, we don’t know ’cause we haven’t seen the report, but what I infer from the fact that special counsel Mueller wasn’t comfortable making a determination one way or another. He obviously knows what these elements are. He knows about these issues that Barr addresses in a cursory way, very quickly, within 48 hours of getting the full report. Mueller knows that too, and he clearly did not come to such a swift conclusion about whether or not these standards and thresholds were met; which is why he punted.

Preet Bharara:      So I find it very odd and peculiar. That paragraph you read and the paragraph before it, are the two most important, I think, in the whole letter because Bill Barr’s trying to put a cap on the bottle and say, “Okay, we’re all done. Nothing to see here.” But how do we know that these are good conclusions on the part of Bill Barr when the special counsel himself, was not able to come up with a swift conclusion; in fact, ultimately came up with no conclusion.

Preet Bharara:      The only way we can assess and evaluate these ultimate conclusions, these exonerating conclusions on the part of Bill Barr, is to see the report. Which leads us, maybe at this point, to the question of what we will or will not see. I was thinking earlier today about this. There are clearly legitimate reasons why you have to be careful about grand jury material; although, orders from judges to release grand jury material for important reasons are not necessarily that hard to get, and it’s classification issues. But if you take the two parts of the report separately, you have the collusion part and you have the obstruction part.

Preet Bharara:      I would expect, and would predict, that more grand jury sensitive information, and classified information, would be present in the collusion aspect. And as I said, that’s sort of over. Whatever people say, I take Bob Mueller at this word, and his conclusion on its face. With respect to obstruction, where we’re being told there’s no considerable amount of evidence in favor of obstruction, you wouldn’t think, based on the reporting, that there’s a lot of grand jury information. I think a lot of that information was gathered through voluntary interviews, and public events. And that there shouldn’t be a lot of classified information involved in the obstruction investigation.

Preet Bharara:      I’m not sure what those … I might be forgetting something, but I’m not sure what that would be. And I think it’s really important for everyone to see as soon as possible, in particular, Congress; the part of the Mueller report that relates to obstruction, so people can decide how to proceed. I don’t know that you need to wait for part one to be fully scrubbed before you see part two.

Anne Milgram:      That’s a fair point. My view is it should go out right away, and that the process, maybe it takes a week to pull out the classified information, which I very much agree with, then to get a court order to release any grand jury material that you would be comfortable sharing, but that’s not classified, but that you need a court order. We should talk about the grand jury piece just for one minute, because I think … I do also want to take issue with Barr’s letter on this, where he talks about federal rule 6E, which basically says that the grand jury is secret, and that you cannot disclose grand jury materials, but allows for a process where courts can agree with, and can allow for the disclosure of grand jury materials.

Anne Milgram:      In Barr’s letter, he says essentially, he wants the department to identify the 6E material that by law, cannot be made public. My issue there is it feels to me like a half truth. It’s true that there’s a law that says you cannot disclose that material, grand jury material; whether it’s witness testimony, or evidence documents, or phone records for example, that were produced to the grand jury, but it’s also true that a court can order the disclosure of it, and courts routinely, not routinely, it’s not done every day; the government doesn’t ask for it every day, but it is done, and it’s done when the government asks I would suspect, on a frequent basis.

Anne Milgram:      So there are also examples, and there are more in the civil rights context, but there are many examples where the Department of Justice has released full underlying reports; including grand jury testimony, with court orders. For example, the reinvestigation into the assassination of J. F. K., the reinvestigation into Martin Luther King Jr.’s assassination. Most recently, we could think about the Ferguson Missouri case investigation that the department conducted after the killing of Michael Brown. So there are countless examples where the department has found sufficient public interests in a matter to warrant asking courts to disclose grand jury material, and issuing full public reports.

Anne Milgram:      I can’t see any version of the department arguing that this is not a matter of significant public interest and importance, that the report itself, Mueller’s underlying report would go out.

Preet Bharara:      Yeah, no. Good points.

Anne Milgram:      What do you think about timing?

Preet Bharara:      I don’t know. I think it’s gonna get wrangled up. On the one hand, it’s interesting that they’re sort of spiking the ball; the president’s team, and saying, there’s nothing to see here. And I had predicted, again, sort of incorrectly, that if it was pretty good for the president, that Bill Barr would be racing to Congress to let it be known. And now you realize, well no, he had this alternative potential strategy of telling everyone it was very good for the president, by putting that into his words, characterizing in a particular way, most favorable it seems to the president, in a four page letter. Then saying, “Well, we’re gonna have to take a long period of time to figure out the redactions, and grand jury information, and classified information,” so that again, what is imprinted upon the minds of the people, is not the actual report itself, with all the mitigating factors, and [inaudible 00:46:57] factors.

Preet Bharara:      But rather, Bill Barr’s nicely written somewhat sanitized mini summary of what is probably a very lengthy report. I hope the fight doesn’t take long. And I hope people are regressive in getting it. And I think it’s good for everybody to make as much public as soon as possible.

Anne Milgram:      So what do you think? I saw that members of Congress, that democratic members of Congress were saying that they were gonna subpoena, or ask Bill Barr to testify before Congress, and if he refused, that they would issue a subpoena. Is that the right tact? Should they subpoena, or ask for Robert Mueller to testify?

Preet Bharara:      Yeah, look. I think more information is good. I think there is a lot of legitimate questions to ask. I don’t know that it will be done well, or effectively, but I don’t think it’s the wrong thing so say, “We’d like to have a understanding about how you came to these conclusions. Why did you take the ball that was punted and come up with these conclusions?” I think that inquiry is good. And I think that oversight is good. And I think a lot of people would like to hear from Bob Mueller, to the extent he can talk about things.

Preet Bharara:      But I still think that the most important thing is to get the fullest unredacted version of the Mueller report out in front of the public as soon as possible. And even if there have to be redactions, that can be argued about later. That happens all the time in court. You’ve seen the Mueller folks ut document after document into the court files, [inaudible 00:48:21] proceedings, and other proceedings, where on a quick turnaround, they redact portions because of ongoing investigations, or because of classified material, or something else.

Preet Bharara:      And you do that. It shouldn’t be that hard, given that the Mueller folks have known and understood where all their information is coming from, and what the sources are for every paragraph, I’m sure, in the report. They know if it’s appropriate or not, if it’s grand jury or not. And I would think you’d be able to come up with a redacted version, which may not satisfy everyone because you want to see the whole thing. But you could at least do that interim step quickly. I guess we’ll see what happens with disclosure of the report.

Preet Bharara:      There’s all sorts of sort of lingering questions, which we can maybe talk about further next week. You have Rick Gates, who continues to cooperate; that case has been essentially transferred to the U.S. Attorney’s Office in D.C.. That may lead to other charges. The reason I thought the Mueller report might not be emanate is because that remains pending. Obviously, you have all these matters in the souther district of New York. People keep asking me about them, ’cause I used to run that place. I have no idea if those will bear fruit, but there’s something to keep an eye on.

Preet Bharara:      I’m always been still puzzled about what happened with Michael Flynn. It seems like he had all sorts of information about nefarious conduct relating to Turkey. He didn’t plead guilty to any of that, and maybe there was no basis for him to plead guilty to that. But I always expect a little bit, another shoe to drop on Michael Flynn and Turkey. Maybe that will never happen. So where do you see things going forward, separate from the Mueller investigation?

Anne Milgram:      It’s such an interesting point I think, on Flynn. Just to stop on that one for a second. I do think that Mueller pushed a lot to the local U.S. Attorney’s Offices, to the extent that the core of the investigation into Russian interference, and the election, and the president, and obstruction of justice, to the extent that things fell out of that, I do think that Mueller was quick to push them out of his orbit, and sort of stay laser focused on the questions that he was tasked with investigating.

Anne Milgram:      So I think that there’s a lot of that. So we may see additional charges. For example, related to the inauguration. It’s very interesting on Gates. Gates was the co-chair of the inauguration. Does he have information on other crimes that were committed? I think those are still open questions. But coming back to Flynn. The thing about Flynn that I think is unusual to look at, is that as a rule, you cooperate people because they are providing you critical information that you cannot get from other sources, that is required for you to have, in order to be able to make other case and other prosecutions.

Anne Milgram:      So it looks like they just cooperated. Did they cooperate him against himself? It looks like a very strange-

Preet Bharara:      Yeah, it looks like … Sometimes you sign people up in the anticipation of it bearing fruit, and they provide substantial assistance. But then you ultimately just can’t make the case against the other person for various reasons, but it’s still unusual. I’m still scratching my head over that.

Anne Milgram:      And that could be the case here. You’re right. It could be that he had information, and that they ran it down. It just didn’t lead to criminal charges, but that one does feel odd to me as well.

Preet Bharara:      So look. We could talk a lot longer, and about all these things, but you have some things to do in California, and I have to move on also. I guess what I would say to folks who seem to have gotten very upset yesterday because they expected more thunderbolts from Bob Mueller, is just to remember that the prosecutors job is not to go get ’em. The prosecutors job is not deliver someone from a president they don’t like, or a presidential candidate they don’t like; in the Hillary Clinton case.

Preet Bharara:      Their job is to look objectively at the facts and the law, and she what can be proved beyond a reasonable doubt, in court. And the criminal law’s a blunt instrument. And the fact that a crime was not found, or couldn’t be proved, doesn’t mean the conduct was good. Doesn’t mean there was not an abuse of power. It could mean there wasn’t, but doesn’t necessarily mean all those things. And for people who care about the country, and care about the future of the country, you gotta be careful a little bit about resting all your hopes on any particular prosecutor; whether it’s Bob Mueller, or a particular U.S. Attorney, if you want to improve the direction of the country, it’s gonna take a lot more than someone who has the power of a subpoena, and the power of an arrest warrant.

Anne Milgram:      I agree. I think that’s really well said, and I think you’re very right in saying that a lot of times, we look for criminal prosecutions of individuals as the answer, when there are deeper questions about our systems and problems that go far beyond one individuals culpability. I also wanna suggest that my first reaction, I think like yours, was that Mueller punted. But my second reaction was to ask … Mueller was looking at the big picture, and he was thinking about the country as a whole; our democracy, the institutions of government.

Anne Milgram:      And I think he was trying to make a decision about how to get the information he had to the people he felt needed to see it; particularly the Department of Justice and Congress. So I know that Mueller was doing what he believed was best for the investigation, and for county.

Preet Bharara:      Yeah. Sometimes the evidence is not there yet. I’m sure you’ve been critiqued as the attorney general for New Jersey. I was criticized as U. S. Attorney. For some cases, the people thought the public record showed, should have been made, but they weren’t. And that’s the best you can do when you have an oath to serve the public, and to do right by the law, and sometimes, it is what it is.

Preet Bharara:      Then maybe on a slightly lighter note with a listener question. It’s an email from David Graupner, of Colorado Springs, Colorado. In the chapter about quote unquote, snitches, in your book, “Doing Justice.” You talk about using food to develop a rapport with subjects. If you and Anne were on the other side of the table, what food would induce you to talk? I will say anything that Anne prepares. ‘Cause people may not know this, you are a marvelous chef.

Anne Milgram:      Oh, thank you. That’s very kind. I would say that I … it’s very funny. I would say that I think I would probably have pretty low standards. And like right now, I would talk for a cup of coffee.

Preet Bharara:      You’re so easy as a witness.

Anne Milgram:      What about you?

Preet Bharara:      It depends on what I’ve been deprived of. I don’t [inaudible], but I go through these periods where I try to go low on the carbs. So a slice of Joe’s Pizza, I’ll tell you anything you wanna know.

Anne Milgram:      That’s a good choice.

Preet Bharara:      So on that food note, let me say, we’ll be back next Monday. So send us your questions to [email protected]

Anne Milgram:      And we’ll try to answer all of your questions.

Preet Bharara:      Thanks Anne.

Anne Milgram:      Thank you.

Preet Bharara:      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-Burman 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 03/25: “Don’t Barr Mueller’s Report”