- Show Notes
The latest episode of the CAFE Insider podcast, “Epstein & Con(Census),” is now available. In today’s discussion, Preet and Anne break down:
- The sex trafficking case brought by SDNY prosecutors against disgraced billionaire Jeffrey Epstein who stands accused of sexually exploiting and abusing dozens of underage girls over a course of many years
- President Trump’s insistence on adding the citizenship question to the 2020 Census, despite the Supreme Court’s decision last month that halts the government from proceeding based on the rationale Secretary of Commerce Wilbur Ross provided for its inclusion.
REFERENCES & SUPPLEMENTAL MATERIALS
- Jeffrey Epstein’s indictment filed by the Southern District of New York: United States of America v. Jeffrey Epstein
- Jeffrey Epstein’s Non-Prosecution Agreement with the U.S. Attorney’s Office for the Southern District of Florida 10/30/07
- SDNY Judge Kenneth Marra’s opinion holding that prosecutors violated the Crime Victims’ Rights Act in failing to disclose their non-prosecution agreement with Epstein, 2/21/19
- The Crime Victims’ Rights Act, 18 U.S. Code § 3771
- “Jeffrey Epstein Arrested for Sex Trafficking of Minors,” The Daily Beast, 7/7/19
- “Nude Photos of Underage Girls Seized From Jeffrey Epstein Mansion,” New York Times, 7/8/19
- “How the Miami Herald investigated Jeffrey Epstein — and his many enablers,” Miami Herald, 11/28/18
THE 2020 CENSUS & THE CITIZENSHIP QUESTION
- The Supreme Court decision in Department of Commerce et al. v New York et al. (2019)
- The July 3rd census hearing transcript with US District Court Judge George Hazel of Maryland
- Donald Trump’s July 2nd tweet about the Supreme Court’s decision regarding the 2020 Census
- Donald Trump’s July 3rd tweet that he planned to move forward with adding a citizenship question to the 2020 census
- “Remarks by President Trump Before Marine One Departure,” White House, 7/5/19
- “Federal judge in Maryland blocks Trump administration’s plan to add citizenship question to 2020 Census,” Washington Post, 4/5/19
- “The worst part about DOJ’s reversal on the census is the lack of deliberation,” The Washington Post, 7/4/19
- “Trump just admitted something he probably shouldn’t have about the census citizenship question,” Washington Post, 7/5/19
- “Judge To Review Claims Of Census Citizenship Question’s ‘Discriminatory’ Origins,” National Public Radio, 7/5/19
TRUMP’S FOURTH OF JULY SPEECH & TWITTER FUN
- “President Trump Speaks at 4th of July Celebration,” CPAN, 7/4/19
- “Donald Trump trips up on history in 4th of July speech, mentions airports during Revolutionary War,” USA Today, 7/4/19
- The tweet detailing the battle for gate C4, 7/4/19
- “Rep. Steve King steps into Twitter trap and shares tweet calling himself a white supremacist,” NBC News, 7/5/19
Preet Bharara: From CAFE. Welcome to CAFE Insider. I’m Preet Bharara.
Anne Milgram: And I’m Anne Milgram.
Preet Bharara: How are you doing Anne?
Anne Milgram: Good. How are you?
Preet Bharara: It’s been a couple of weeks. We were kind of off last week.
Anne Milgram: Yeah. How was it to celebrate the 4th of July in the country that we declared independence from.
Preet Bharara: That’s why I planned a military parade myself actually.
Anne Milgram: In England.
Preet Bharara: In England. It was a little hard logistically. That was good? It was very informative. I know this sounds weird and may sound like we’re not fun parents, but it was an educational trip for the kids. We did a lot of things. We went to Stonehenge and we saw a lot of great sites, but one concern I had was bringing the kids to see Shakespeare’s Globe Theater.
Anne Milgram: Yeah.
Preet Bharara: We actually watched in the middle of the afternoon, Henry IV, Part 1. It’s one of the great history plays not as well known as Henry V. It’s like a two and a half hour performance and we had a discussion at the intermission about may be bailing and doing other stuff that maybe was more fun.
Anne Milgram: More fun for them.
Preet Bharara: …and everyone decided to stick around and really enjoyed it.
Anne Milgram: That’s great.
Preet Bharara: …and so they learned… On the written page I think for young people, Shakespeare is really sort of hard to rock but seeing it performed-
Anne Milgram: It’s better. Yeah.
Preet Bharara: The other thing that was unexpected to me and calls to mind current controversy, the actors playing the parts are not either racially or gender-
Anne Milgram: Sure. They’re all different. Yeah.
Preet Bharara: One of the main characters in the play and the person who becomes the main character in the succeeding play, Henry V, Prince Harry Prince Hal is played by a black woman on stage and then you come back to the States and you see there’s all this uproar about a mermaid, nobody cares.
Anne Milgram: Yes. That’s wonderful. We took our almost five year old, he’ll be five on Wednesday. We took him to see his first play ever yesterday-
Preet Bharara: What was it?
Anne Milgram: It was Hello, Dolly! at a local theater at the shore and by the way I was nervous we wouldn’t make it through the first 10 minutes let alone the first half. There’s this really slapstick scene where these two guys are hiding in a hat shop. I didn’t remember it at all and he just started to giggle and he could not stop and so like the whole audience sitting around us was cracking up. My parents were… everyone was cracking up. It was really… it was great. We made it through the whole play.
Preet Bharara: All right, so we have some kind of difficult things to talk about this week. I think the two big things to talk about and then some other issues also, but the two big things to talk about are as we record this in the early afternoon of Monday, July 8th billionaire Jeffrey Epstein finally being prosecuted in a much more strong way by my old office S.D.N.Y. The press conference held by my successor, Geoffrey Berman just concluded a few minutes ago. We’ll talk about that. We’ll talk about more shenanigans. We thought we were done talking about the citizenship question on the census, we’re not because there’s more twists and turns there and then maybe we’ll end with the actual Trump July 4th parade and various statements he made there, so Jeffrey Epstein.
Anne Milgram: Yeah.
Speaker 3: Epstein is charging in a two count indictment, first conspiracy to commit sex trafficking and second the [inaudible 00:02:59] crime of sex trafficking of underage girls.
Anne Milgram: This is really important and we’ve spoken a little bit about it before but just to sort of go back which is that Epstein is considered to be a very wealthy financier was alleged in Palm Beach at Miami, Florida years ago to have engaged in sexual acts with minors and there-
Preet Bharara: Extensively.
Anne Milgram: Extensively and there was a local and federal investigation that took place with [Alex 00:03:31] Acosta who is now the Secretary of Labor under Donald Trump. At the time he was the US attorney, and I should stop here just for a second to say that he was also the Assistant Attorney General for Civil Rights when I became the lead prosecutor in the country for human trafficking crimes and so I don’t know him well. I’ve obviously met with him before I was given the job but any suggestion, and we’ll talk about this in a minute, but any suggestion that someone like Acosta didn’t understand the severity of this type of crime is completely implausible.
Anne Milgram: I mean he was incredibly focused on it when he was AAG. I prosecuted a lot of the first cases in the country for human trafficking crimes and so this is just a really horrific thing that happened with the US attorney’s office under Acosta.
Preet Bharara: I should mention also that I know Alex a little bit because we went to college together. He’s class of ’90 out of Harvard like I am.
Anne Milgram: It’s a small world.
Preet Bharara: I knew… He’s not a friend of mine, I knew him in passing because you know, you sometimes know people in your class. I’ve not kept in touch with him but in college and he’s relatively smart guy. Let’s talk then based on your experience and mine about the underlying case that was resolved in Florida because I think it’s important to understand what went on there, which we understand a little bit more now because a lot of reporting before we tackle the case that S.D.N.Y. brought today.
Anne Milgram: Right. I agree with that.
Preet Bharara: There’s a resolution-
Anne Milgram: Yes.
Preet Bharara: …of all these allegations and let me start with this and then hear what you have to say about it. Unlike a lot of cases that get resolved in a fairly light matter, the reporting is that prosecutors in the Southern District of Florida actually prepared a 50 some page indictment setting forth all these things. Now it is sometimes true that people investigate a case, think they’re going to bring charges in for various reasons because of either weaknesses in the case or some other reason that is based on in the interest of justice, you don’t bring the tough case and you have a resolution that assures you which is what Alex Acosta has been saying although he said very little. You get a guaranteed registry as a sex offender, you get a guaranteed conviction but it is unusual to have a fleshed out prosecution document that never sees the light of day and the resolution is something that is a tiny, tiny fraction as serious as what the drafted indictment was.
Anne Milgram: Without question. This is a very unusual, I think is a generous way to say it, an unusual case in a lot of ways. First of all the federal government and this is 2007, 2008 agreed to enter into a non prosecution agreement with Epstein knowing that there were a large number of victims, so initially it comes in with sort of a handful maybe two or three victims of sexual abuse at Epstein’s hands under the age of 18. It was reported that one of them may have been even younger than that but it’s clear that there are a number of victims.
Anne Milgram: The US Attorney’s office then as part of this process uncovers and goes back and forth with victim advocates to find out that there’s more than 30 victims in Florida at the time. They then sort of come to two conclusions neither of which I agree with and let’s just sort of talk it out because I-
Preet Bharara: When you say they by the way, maybe I haven’t looked at it as closely as you have. It is unclear to me if it’s Acosta, if his office was unanimous, there has been some reporting saying that there was a lot of discord among the team. I’d be surprised if everybody thought it was a wonderful resolution.
Anne Milgram: Right and I think even Acosta or the person who had been the first assistant said there was vigorous dispute… like debate within the office, so I think there’s going to be no question that there are prosecutors who thought that Epstein should be charged and there are others who did not think that he should be charged and the obvious implication from the conversation is that Acosta who is very politically active, he was the head of the Civil Rights division at the Department of Justice, but his career was not as a criminal prosecutor. He came up sort of through more political ranks that Acosta was responsible for being the person to say, let’s not charge, we don’t know that yet though and I think it’s one of the questions that I have.
Anne Milgram: I’m so pleased to see the Epstein indictment because I think that there was a miscarriage of justice with the non-prosecution agreement, but to me it’s still really unanswered what happened back then and so let’s talk about a couple of things that are really deeply unusual. One is that there’s some intimation when you read the findings and there’s a federal judge who said in Miami in February of this year who basically found that Acosta’s office, the US Attorney’s office for the Southern District of Florida had violated the Crime Victims’ Rights Act which basically says victims have to be notified. They have to be told when they’re pleased, they have to be kept in the loop, they have a right to consult with the government lawyers and so there’s been a finding that Acosta and that office violated the law.
Preet Bharara: But not only by not keeping them in the loop but as I read it also making the conclusion that they sort of actively misled the victims into thinking-
Anne Milgram: Completely.
Preet Bharara: …something different was going to happen.
Anne Milgram: Completely. It’s like when you and I read mystery novels, there’s always a fake clue where someone tries to throw someone off the trail. This is a classic example and there’s a paper trail of this where the victim’s advocates were and lawyers were reaching out to the US Attorney’s office. The US Attorney’s office was sending emails basically saying that the investigation was ongoing after they had entered into and signed a non-prosecution agreement. Essentially, look, the judge doesn’t say it as blatantly as I’m going to say it, but they lie. They were intentionally misleading victims in a case and they were doing it at the request of Epstein’s lawyers because they wanted to keep this secret. They wanted to keep it hush hush and there’s nothing more problematic. It is completely against everything that you know, criminal prosecutions and the Department of Justice should stand for-
Preet Bharara: And by the way-
Anne Milgram: …and the US Attorneys’ Manual by the way, the rules.
Preet Bharara: And just common sense justice. That has been a conclusion made by a court that is essentially undisputed. Even the Department of Justice has basically acknowledged in recent times, weeks or months that the Southern District of Florida on this issue fell down on the job.
Anne Milgram: Going back to the original case, the implication is that the reason it couldn’t be prosecuted or that there were a couple of things, one, that there was a jurisdictional hurdle, that it was hard for them to prove jurisdiction and of course the federal laws are often premised on interstate commerce that things move between states that they move back and forth having prosecuted a lot of sex trafficking cases. I can tell you that it’s one of the easiest elements to meet. It can be a condom, it could be [inaudible 00:10:01], it could be a phone call as here-
Preet Bharara: I once proved interstate commerce in a large robbery case and there was this Chinese gang that was doing push-in robberies of victims in lower Manhattan and I’m asking a victim witness on the stand all these questions about what happened when the robbers came in and they tied you up and they pulled up their guns and were you scared? It was a Mahjong parlors, certain gambling… in the testimony in front of the jury he said, “By the way, did you serve refreshments in the establishment?” The witness said, “Yes”. Among the refreshments you served, did you serve beer? He said, “Yes” and any particular kinds of beer? He said, “Heineken.” That’s an important beer, isn’t it? Thanks and then went back to the robbery and I’m sure the jurors were-
Anne Milgram: What is he doing?
Preet Bharara: What the hell is wrong with Preet? Why is he asking about the beer? But that was sufficient to establish the nexus.
Anne Milgram: Exactly. I find that to be just completely implausible as a justification for why the case wasn’t prosecuted, that there was any issue in getting jurisdiction. Now, they may not have been looking at sex trafficking but there’s no question that there was jurisdiction here. That’s the first one. The second one is that there’s an intimation and I am so incensed by this, there’s an intimation that the victims were uncooperative or that they were… because of what they’d been through, they were going to have a difficult time testifying or there were vulnerabilities in the victim meaning that there were some bad facts.
Anne Milgram: For example, you could think about looking at the indictment, it’s alleged and I think it’s very clear that a number of the victims went back repeatedly that Epstein called them or had employees call them. You could see the world two ways. One, you could see it as the way that this sort of intimation is, which I completely disagree with which is that, well, that’s a problem when you try a case because the victims are going to look bad or you could see it-
Preet Bharara: It’s suggesting consent.
Anne Milgram: Exactly.
Preet Bharara: There’s no consent.
Anne Milgram: Exactly.
Preet Bharara: When you’re young.
Anne Milgram: And the argument… I’ve tried cases, I’ve tried human trafficking cases and defendants pick their victims because of their vulnerability and that falls on the side of the government. When you try a case and you’re able to say, look, the victims are vulnerable. They did x, y, and z and they did it because… look at the incredible power differential, look at their vulnerabilities and by the way, he picked them because of that and that’s why it’s so egregious that he was able to get away with this. Couple that with the fact that the US Attorney’s office ultimately accounted for 30 victims.
Anne Milgram: If it’s one victim and you’re worried about the victim’s vulnerability and whether or not they can testify, that’s a completely different conversation than we’re having here. I really think that there’s no explanation for this other than, and I don’t know whether it’s legally prosecutable corruption or [inaudible 00:12:42] corruption where you have a powerful criminal defendant who has a great defense lawyer and a prosecution that is not willing to go forward because of either sympathy for the defendant or because they’re afraid to go up against high priced defense lawyers. What do you think? What’s your read when you look at all this?
Preet Bharara: The other weird thing about the resolution of this that I don’t know all the details about, and I think this will come out eventually is the way that the thing was resolved and maybe people will be surprised by what I’m about to say and that is, I was US Attorney, you were attorney general, we both had similar jobs to what Alex Acosta had as US Attorney and the reporting is, it’s great reporting out of the Miami Herald, which we’ll come back to in a moment, but essentially the US Attorney today, Geoffrey Berman of the Southern District said one reason this case proceeds today is that they were assisted by excellent investigative journalism, but Alex Acosta as the sitting United States Attorney appears to have taken one or more meetings offsite with the lawyers for Jeffrey Epstein personally.
Preet Bharara: Now you may think, well that’s ordinary. He’s the head of the office, like that’s what his job is-
Anne Milgram: Did you ever-
Preet Bharara: Seven and a half years I never had a meeting with lawyers for any defendant alone, not only that, I was thinking about this over the weekend. I can count on one hand the number of times that I took a phone call from lawyers for a defendant without having my team present and on two or three of those occasions it was because someone who I knew personally called and I made it very clear even with friends and former colleagues because the bar consists of people you know. I mean there’re very few people you don’t know when you’ve been practicing in a district for a number of years, and I would call the team in immediately and I would say, this is a call. This is what happened. I told them they need to deal with you and then ultimately, and I did this a lot, their appeals that come up to the US Attorney from the defense lawyers saying, no charge we think we’re being treated unfairly.
Preet Bharara: I never let anybody have a meeting with me until they first met with the line prosecutors, then those supervisors, then the criminal division chief, and then if necessary they could meet with me and when they met with me it was in the office. It was in the library on the eighth floor and my team was present.
Anne Milgram: Me too.
Preet Bharara: Every single time and he did that partly because you want the team to be involved and the team knows the case. You want to make sure that their morale is high and they’re not going behind their backs but it’s also I will tell you frankly, it’s for the protection of the office.
Anne Milgram: Yes.
Preet Bharara: …and for you so that no one can say later, well why are you… it’s not that different from why I didn’t take the call from the president of the United States. You have to be careful that it looks like you’re operating according to normal process. Now, maybe it was an ordinary process for Alex Acosta to be negotiating these things on his own but-
Anne Milgram: If it was, it was a bad process.
Preet Bharara: Bad process.
Anne Milgram: And if it was, his practice to take any meetings outside of the office, that was also terrible practice, and by the way, we’ve heard this in other cases recently where prosecutors have gone to defense lawyers offices I think that was one of the allegations in the Weinstein case. There’s no basis for anyone to be taking meetings who’s the head of an agency to be taking meetings outside of the office in my view.
Preet Bharara: And alone.
Anne Milgram: And alone.
Preet Bharara: We used to have a phrase, the eagle doesn’t fly.
Anne Milgram: The eagle doesn’t fly.
Preet Bharara: I can only think of two extraordinary circumstances where there was an interview of somebody that was accommodated elsewhere and that’s because the person or persons were so well known and it would be disruptive and it was being done on a voluntary basis that we decided you would cause a circus if you had that person come through the front door.
Anne Milgram: Right, but that’s a law enforcement sensitive decision. That’s not you taking a meeting with a defense lawyer which is not sensitive in the same way. It’s worth noting also that one of the other reasons why I would never do it is that you don’t know when a defense lawyer walks in the door, they may tell you something they haven’t told all the line prosecutors. They may try to portray evidence differently and in order to make sure that everybody’s on the same page, they’ve got to go through every single chain of command till they get to you and you have to have your team present so that there’s no gamesmanship.
Preet Bharara: That’s how you get played. That’s a defense lawyers play you and it also… I just wonder what the views of his underlings were knowing that that kind of meeting happened. If I had done that, I would have been rightfully-
Anne Milgram: Fired.
Preet Bharara: Pilloried by my own folks, like, what is it you don’t trust about us to be involved in the meeting that you’re taking it privately and by the way-
Anne Milgram: I thought you meant as a line attorney. If a line attorney in my office had done that without… even a line attorney going to a defense lawyer’s office, we didn’t do it and we didn’t do it to sort of uphold the integrity of the institutions.
Preet Bharara: You’ve already mentioned a few different things that seem very unusual about, and maybe that’s too [inaudible 00:17:21] a word with respect to the resolution in Florida. One more thing we haven’t discussed is something that I don’t think I’ve ever seen and I’ve seen other folks who’d been from other federal prosecutors offices also saying in the last few days they’ve never seen it and that is a specific carve out of immunity not just for further prosecution of Jeffrey Epstein but of his co-conspirators some of whom are named and others of whom are not named. What do make of that?
Anne Milgram: I think it’s insane. It’s bananas. I’ve never seen it. I’ve never done it. I can’t imagine a reason to do it. First of all, it presumes that you know everything there is to know about co-conspirators, which I find complicated and we don’t know that at that moment in time, but second of all, it’s just, they’re not charged and they’re not… he hasn’t been indicted. It’s not like there are unindicted co-conspirators. There is no legal basis in my view to have done it and also I would argue, I’d love to know what you think. I don’t think it’s binding on anyone.
Anne Milgram: I mean the existing non-prosecution agreement isn’t binding on the Southern District of New York or other US Attorney’s offices but to say that unindicted co-conspirators… Epstein is giving up, it’s in the non-prosecution agreement, Epstein was agreeing to and again I think this was a crooked deal and should never have been cut, but he was saying, “I’m going to do 13 months in a local jail. I’m going to plead guilty to a state felony having sex with someone in exchange for money, essentially prostitution, being a john and I’m going to get 13 months incarceration and I’m going to register as a sex offender and I’m going to pay victim’s restitution or damages for what’s happened.”
Anne Milgram: That’s his deal. He’s making this deal in exchange for that, the government is saying, “Okay, we’re not going to prosecute you.” The co-conspirators aren’t a part of this deal. There’s no agreement being made with them, it just… it’s really odd. Why would Acosta or anybody agree to that?
Preet Bharara: I don’t know. Look, I mean… I don’t know.
Anne Milgram: Do you think… It felt to me a little as I was sort of looking through the judge’s opinion and some of the emails back and forth between defense counsel and the prosecutor… the line prosecutor and US Attorney’s office. It looked like Epstein’s lawyers were really driving the car here, like they were sort of dictating that they didn’t want the victims to know, which we’ll come back to in a minute.
Preet Bharara: I mean this NPA was supposed to be nonpublic which is also an unusual thing.
Anne Milgram: Except for a FOIA which the government agreed to but it was clearly sought by Epstein’s lawyers and the government agreed to it, which is also, it’s extraordinary for a number of reasons including the fact that it’s contrary to the Crime Victims’ Rights Act but also it’s just never the practice in a government office, state, local, federal to basically be hiding dispositions and investigations like this. One other thing about the non-prosecution agreement, there has been litigation. The judge found in February of this year that Acosta and the US Attorney’s office violated the Crime Victims’ Rights Act by not notifying the victims by, as you pointed out, by misleading them about the status of the investigation and essentially by hiding the non-prosecution agreement.
Anne Milgram: The judge then ordered, and I found this really interesting. The judge ordered the parties to try to figure out what the right remedy for that is and it’s complicated because the Crime Victims’ Rights Act doesn’t say exactly like it doesn’t specify, well the remedy has to be x or y. It doesn’t give a specific remedy but obviously the court is entitled to fashion a remedy. The Southern District of New York indictment today doesn’t change the fact that this litigation is still going on which is this question of should they invalidate the non-prosecution agreement?
Preet Bharara: Interesting argument made by the government meaning the Southern District Florida folks, although they’ve accused themselves and now this litigation is being handled by a US Attorney’s office in Georgia. There happen to be things in the non-prosecution agreement, the NPA that are of benefit to the victims. Even the victims themselves are not calling for the invalidation of the whole thing. They’re just calling for invalidation of basically a small part of it.
Anne Milgram: Right. Do you think that the agreement should be invalidated?
Preet Bharara: I don’t know and I don’t know that it necessarily matters as a practical issue going forward because of the Southern District case.
Anne Milgram: I agree with that. I would say though, and I don’t know, I may be in the minority on this, but I would say the following, I think that the Crime Victims’ Rights Act is so important that there has to be a significant remedy for-
Preet Bharara: That’s a good thing.
Anne Milgram: …this willful violation and when I was thinking about it, I was thinking about the fact that it was Epstein’s lawyers who sought out… this was Epstein basically saying I don’t want the victims to know and it was negotiated and the US Attorney’s office should never have agreed to hide and actively mislead the victims in a case. That to me mitigates heavily in favor of throwing out the non-prosecution agreement which I don’t take lightly because-
Preet Bharara: The whole thing is weird because as you point out a couple of times, it seems like the defense lawyers are driving the show. Now, sometimes that happens, right? Sometimes it’s the case taken out of the current context. You have two parties in a negotiation, sometimes both parties have sort of equal leverage and good points on their side and bad points but sometimes it’s very lopsided. Whether you’re talking about a financial negotiation or you’re talking about criminal prosecution negotiation and it’s just weird to me, given what the evidence was why it would be so that, put in the best light, say it’s not corrupt and it was just a complete miscalculation of the strength of the evidence and the possibility of success that Alex Acosta and the Southern District of Florida made the determination that they would agree to a lot of stuff. They would make a lot of concessions to resolve it in a way that was not just walking away, but, which by the way was other options [inaudible 00:23:10]because they could drop the whole thing.
Preet Bharara: They clearly didn’t want to do that and that doesn’t make a lot of sense to me given what they had. I mean, we talked before about immunity given to these third parties. The only basis for that would seem to me strategically if they so badly wanted to get a resolution, they so badly wanted to get a plea to something that they were prepared to give in to all these demands of the lawyers. Otherwise it makes no sense.
Anne Milgram: Yeah. I agree and look, there are definitely times where you plea people out believing beyond a reasonable doubt that they have committed a crime but understanding that it would be very hard case to try and many times… I mean I’ve pled cases out where I had a single victim of a sex crimes case where I believed it would be incredibly difficult for the victim to testify and that it was the right thing for me to do to plead that case out.
Preet Bharara: What was really interesting about what you just said, remind me to make this point. I may have missed it, but I have not seen the argument made in any of the reporting and again, I may have missed it, but I’ve not seen the argument… because that’s not an illegitimate argument, like you know what, one of the aspects of the interest of justice is not to re-victimize these people and you can make a miscalculation about that too but I have not even seen that offered as an explanation for why they let Epstein off [inaudible 00:24:27] that they didn’t want to put these people who were young at the time back on the stand.
Anne Milgram: I don’t think it works here if you have 30 plus victims. I think it’s worth-
Preet Bharara: They’re not even making the argument.
Anne Milgram: They’re not even making the argument, but it’s worth noting that, and I should’ve said this upfront, that it’s very clear that Epstein… we’re talking about more than three years of conduct. We’re talking about if you do the math from the Southern District of New York indictment, dozens of victims in New York, dozens of victims in southern Florida, we’re talking about, my guess is dozens means probably more than 50 when you put those two jurisdictions together. I don’t want to speculate, but we’re talking about a lot of victims and even by their own count, the US Attorney’s office in Miami back in 2007, 2008 had over 30 victims that they’d identified.
Anne Milgram: It’s a very different analysis when you’re talking about one incredibly traumatized individual versus when you’re talking about 30 and I think it’s worth noting that here.
Preet Bharara: The issue of whether or not the non-prosecution agreement is separate from whether or not the Southern District should have gone forward and people keep asking the question, well, how can the Southern District of New York proceed when you have this resolution in the underlying case in Florida and as Geoffrey Berman said, and as David Boies’s a lawyer for one or more of the victims has said that agreement on its face only binds the Southern District of Florida and the local prosecutor’s office there. I will say however, that yes, as a technical matter that is true, but also as a general matter you have 93 US Attorney’s offices.
Preet Bharara: They did not as a practice go around re-prosecuting people who had engaged in resolutions with other offices because the presumption is that those resolutions happened in good faith and so if there’s a robbery case that was resolved in the northern district of Illinois and someone said, “Hey, three other offices, maybe you could have also had jurisdiction.” You don’t reopen those and prosecute them even though technically the parties to the agreement are just the local office and that defendant. This had to have been an extraordinary case to do this and as Geoffrey Berman, the current US Attorney said, it’s a little bit because of this profoundly important investigative reporting that most vitally has called into question in a more serious way than was I think known at the time, how distorted, messed up, arguably corrupt the resolution in the Southern District of Florida was which is the kind of thing that warrants a reinvestigation by a separate office for a lot of the same conduct and the bringing of a new case.
Anne Milgram: That’s completely right and really the investigative journalism by the Miami Herald is extraordinary and has brought to light what’s happening now. I was really pleased to see that both the US Attorney, Geoffrey Berman and the head of the FBI in New York, Bill Sweeney said, we open this after we read the reports of the investigative journalism because basically it showed that there was a problem with the underlying agreement. Now you and I both noted this, but I think it’s worth my asking you. It’s strange to me, again, having been a human trafficking prosecutor, the US Attorney’s office in the Southern District has excellent human trafficking prosecutors. This case was brought by the public corruption unit and I have my theories, but I will-
Preet Bharara: A lot of people have been asking about this and I looked at the people who were standing next to the podium at the press conference today, I think all of whom I hired and maybe three of the four I hired. Yeah, it’s being done out of the public corruption the press release says that although there is a prosecutor. I don’t believe is in the public corruption unit, [Morey Comin 00:27:50] you might recognize the last name who has done a lot of significant human trafficking work in the Southern District of New York.
Preet Bharara: There’s a lot of reasons why it might be the PC unit. I mean one reason might be, and this happened when I was US Attorney. Sometimes you’re investigating a particular crime and it maybe belongs in the unit because they focus on those crimes whether it’s securities fraud or something else, but if there’s a potential implication of an elected official then… My folks in the public corruption had a certain sensitivity and sensibility, understood the procedures, understood what the consultation requirements were.
Preet Bharara: Just had a little bit more maturity on how to deal with an elected official because sometimes, by the way, anytime you have an elected official that is in the cross hairs for whatever kind of crime, including trafficking or prostitution or anything else that could easily then jump to something different, there could be use of federal funds, some people have been pointing out from my old office over the last few days there was a sex trafficking organization that was investigated before I was US attorney in 2007 and 2008 that ultimately ended up toppling the governor of New York Eliot Spitzer and that was being handled by the public corruption unit also, which raised a lot of eyebrows and no public corruption charge was ever brought.
Preet Bharara: The fact that the public corruption team is quarterbacking this does not necessarily mean that there’s going to be a public corruption charge, that someone’s going to be prosecuted for a quid pro quo of some sort. It probably means that there’s reason to think that people who are in a position of trust and public office might need to be looked at or have been looked at, but they’ve also got people who do trafficking work involved as well.
Anne Milgram: It totally makes sense to me. We should pose the Miami Herald articles because they were excellent on Alex Acosta and the non-prosecution agreement. Reading those articles that the journalism there would lead you to really question the integrity of Acosta in that office and to ask the question, why did they do this? Was there some form of quid pro quo? What was the motivation to do this and so it doesn’t surprise me at all that you would open as a public corruption matter to basically look into why was this deal cut? Was there some nefarious reason it was cut? Was it just for political favoritism or because you used to practice law with someone. There’re countless reasons some of which would be criminal, some of which wouldn’t be.
Preet Bharara: Governor Spitzer was ultimately not charged because in part there was no evidence that he had misappropriated public funds to travel interstate to engage in the streets with prostitutes. I bet there has been a significant amount of investigation among his lines.
Anne Milgram: Was he charged with the Mann Act?
Preet Bharara: He was not charged with anything.
Anne Milgram: He was not charged with anything.
Preet Bharara: No, the decision was made-
Anne Milgram: Not to charge him.
Preet Bharara: Not to charge him, because it wasn’t my decision before my time that other people in his position and I know there’s a disagreement about this as a matter of policy, but other people in this position, if they were not governor, would not have been charged and they accepted that he would resign immediately from his post and that would be that. On the same point by the way, Geoffrey Berman, the US Attorney was asked about staffing of the public corruption and he said himself, you’ve got to listen to what the US Attorney says that, he wasn’t going to get into staffing issues and that you shouldn’t read too much into that. I find myself saying often when I sit at that podium, don’t read too much into this and that’s a sort of a signal to let you know like don’t expect some blockbuster public corruption cases be brought.
Preet Bharara: Now what has been breaking this morning since the release of the indictment is the fact that during a court authorized search of Jeffrey Epstein’s home there has been found and I don’t know all the details yet, because we’re recording before we know all the details there has been found apparently images, pictures, digital images of underage girls. I don’t know what state of dress, the possibility is that there’s child pornography in the possession of Jeffrey Epstein who by the way even based on the very lenient non-prosecution agreement from Florida is a registered sex offender and it is very, very hard to defend against possession of child pornography and the penalties for that are extreme and what’s also fascinating about that to me is even though the conduct we’re talking about was from 2002 to 2005 in the indictment, you’re not allowed to get a search warrant unless you have fresh probable cause that there are materials located in a particular place-
Anne Milgram: At this time.
Preet Bharara: …at this time.
Anne Milgram: Exactly, yeah.
Preet Bharara: The Southern District of New York’s investigation has to have had evidence that there were documents or images or other things stored at the home to allow a judge to authorize that search.
Anne Milgram: Right. Let’s break this down just for a couple of minutes because it’s worth talking about. The indictment today charges Epstein with one count of sex trafficking, one count of conspiracy to engage in sex trafficking, and it’s important to note that when people think about human trafficking and sex trafficking, they often think about pimps who get young girls or other women and they compel them into prostitution and that that is the charge. It also is true that someone like Epstein here who was obtaining the young girls in many cases coercing them, enticing them, basically compelling them into engaging in sex acts with him. It’s fine that he’s both the procure of the girls and that he’s the one who’s benefiting as a matter of law for the sex trafficking charges.
Anne Milgram: What is also really important is what you just said, which is that he’s already facing a huge potential prison sentence. There are mandatory minimums on the sex trafficking laws. 10 years if the victim is between the ages of 14 and 18 and if there’s coercion it goes up to 15 years or if the victims under the age of 14 and so it’s really important to know he’s already facing serious terms of confinement. It’s also true though that Berman, the US Attorney said in the press conference that they’d found images of young girls naked in Epstein’s house during the search warrant. If that is true and I would be shocked for him to have said it if it isn’t true because as you know, he said no comment a lot of times, don’t read too much into this. If that’s true, the federal sentencing on child pornography is also very significant.
Preet Bharara: And indefensible.
Anne Milgram: And indefend… so is child sex trafficking, I mean I would argue-
Preet Bharara: No, no, no I’m sorry, I don’t mean indefensible in terms of morality. I mean-
Anne Milgram: You can’t defend… right.
Preet Bharara: As a matter of criminal defense lawyers you have an image.
Anne Milgram: Got it.
Preet Bharara: It is child pornography. It is on your computer. You have access to the computer. There is almost no defense you can make to a reasonable jury, arguably everything [crosstalk 00:34:02]-
Anne Milgram: And it’s his house. Yes, and you’re right. That’s a great point. From the indictment there are three employees who are listed essentially as uncharged co-conspirators. Employee number one, employee number two, employee number three-
Preet Bharara: It’s your guess that they’re the cooperators.
Anne Milgram: Yes, exactly and it’s worth just noting that it’s no accident that all of a sudden you get enough information for a search warrant in current time in his property. It means that someone who has access to his current property and to information about what Epstein has and doesn’t have on for example, digital devices or in his house, someone who has that information has provided that information to the government.
Preet Bharara: Yeah, and the fact that those people did not appear as named defendants is also pretty good evidence that they [crosstalk 00:34:41]
Anne Milgram: Are cooperative.
Preet Bharara: …and they also named particular victim. Victims one, two and three who look like they’ve given extensive information to the Southern District so going forward, a couple of things, one, we don’t know about bail. The US Attorney’s office… in fact, the US Attorney Berman was very strong at the beginning of his remarks I think to say that they’re going to be seeking detention because they think that Jeffrey Epstein is a huge risk of flight because he has a lot of money and he’s a lot of houses in a lot of places at the time of this recording we don’t know what the result of that argument has been and then also there’s the prospect that a lot of people chatter about, will he flip and who might he implicate because there’s a lot of reporting that he’s been close to not only Donald Trump who basically vouched for his character back in 2002 which is not a crime but he did and also people like Bill Clinton.
Preet Bharara: It’s interesting from my perspective as a former prosecutor to watch sort of the political chattering about who this will affect and who it will not. This to me is not a political case at all and shouldn’t be a political case at all. It’s about the victimization of a bunch of children.
Anne Milgram: It’s a child’s… exactly.
Preet Bharara: …over a course of years where there was a miscarriage and he should implicate whoever he can implicate and if it’s a Democrat, it shouldn’t matter what, what the party affiliation or ideological background of fellow criminals are at all no matter what side of the fence you’re on.
Anne Milgram: Agreed, and that’s actually the fact that it is child sexual exploitation is what makes the initial agreement by the US Attorney’s office in Florida so incredibly difficult to understand, impossible. The one other thing just to say is that a judge, the Second Circuit in New York has recently ruled that the civil information from a civil case that has been brought related to Jeffrey Epstein and some of his victims is going to be released and that it appears that that information may also… his allegations against some of the folks you just named, including Alan Dershowitz, Bill Clinton, Donald Trump. It’s not clear what’s in there but I for one I’m curious to read it.
Preet Bharara: I mean, some people have been pointing to this line in the non-prosecution agreement on page five that says in consideration of the agreement to plead guilty, the United States also agrees that it will not institute any criminal charges against any potential co-conspirators of Epstein, et cetera, et cetera that that language suggests that it binds every US Attorney’s office, the whole United States. I think that’s just poor draftsmanship. Obviously the agreement as a whole only has as a signatory the Southern District of Florida, US Attorney’s office and the local prosecutor’s office and United States is a shorthand that every prosecutor’s office uses to talk about-
Anne Milgram: Themselves.
Preet Bharara: …the government in the context of everything else. I don’t think that… and there are ways that when you want to reach a true universal agreement that bars every other US Attorney’s office from ever bringing a case. I’ve seen occasions where main justice will spend a considerable amount of effort to make sure that every US Attorney’s office can speak now or forever hold their peace-
Anne Milgram: And signs off on it.
Preet Bharara: …and that didn’t happen.
Anne Milgram: Exactly.
Preet Bharara: Right. We can obviously talk about the Epstein case and we have for a long time. Shall we talk about the ongoing saga of the census-
Anne Milgram: Yes.
Preet Bharara: …matter? We thought we were done. We thought that the Supreme Court had ruled and essentially said to be clear, not that you can never ask a question about citizenship on the census, that remains an open possibility, but what you can’t do is basically lie about your reasons for it and there’s lots of information in the record available to the Supreme Court and the other courts along the way making clear that the government had offered pretextual reasons saying they needed a citizenship question and the data to be able to enforce the Voting Rights Act when that was just not true and there’s lots of basis to believe it was for political reasons to benefit Republicans and then it had been said over and over and over and over and over again, how many overs is that?
Preet Bharara: Over and over and over and over again that as a practical matter, lawyers for the Justice Department said over and over and over and over again we need to know what we’re doing with respect to that question by June 30th after which it will be logistically impossible to add a citizenship question because it’s a huge undertaking and the census is just a few months away and representations were made by Wilbur Ross’s office, the Commerce Secretary, and also by the Department of Justice at a very high level to the court that we’re not putting the citizenship question. Everyone declared victory on the particular side. I tweeted about it, other people did too and then what happened?
Anne Milgram: What happened is that the president then tweeted out the next day essentially-
Preet Bharara: The president tweeted.
Anne Milgram: The president of the United States tweeted causing a federal judge to basically-
Preet Bharara: He didn’t send a memo.
Anne Milgram: No.
Preet Bharara: He didn’t have a meeting. He didn’t call the Attorney General into his office. He sent a tweet.
Anne Milgram: He sent a tweet after, it’s worth just noting, after the commerce secretary had made a statement, Wilbur Ross had made a statement saying there is no citizenship question on the census. We’re going to print after the Department of Justice attorney had assured the court and it’s… I think it’s hard for a lot of people to understand what a big deal it is for a lawyer to stand in court. Lawyers are officers of the court, meaning that they have a responsibility to be truthful and honest with judges.
Anne Milgram: For a lawyer to stand there and say it has to be done by June 30th and then to say it’s over we’re not adding a citizenship question, that means a lot and then the next day, July 2nd, the president of the United States tweets out completely contrary to every representation that’s been made by other people in his government, including the Secretary of Commerce and the United States Department of Justice that was fake news on July 2nd at [inaudible 00:40:16] Donald Trump tweeted a very sad time for America when the Supreme Court of the United States won’t allow a question of, is this person a citizen of the United States to be asked on the 2020 census going on for a long time.
Anne Milgram: I’ve asked the Department of Commerce and the Department of Justice to do whatever is necessary to bring this most vital questions and this very important case to a successful conclusion. USA! USA! USA! followed the next day which is the one that really… July 3rd which is the one that causes all the confusion, “The news reports about the Department of Commerce dropping its quest to put the citizenship question on the census is incorrect or to state it differently, FAKE. We are absolutely moving forward as we must because of the importance of the answer to this question.”
Preet Bharara: So none of this is true. Donald Trump hadn’t talked to folks in his own departments either commerce or DOJ. That led to among other things basically an emergency conference call led by the judge over one of the litigations in Maryland, Judge Hazel, various members of both the government team and the other team were on vacation had to call in and you had the extraordinary circumstance of a pretty high ranking person at the Department of Justice, an attorney named Joshua Gardner-
Anne Milgram: Joshua Gardner.
Preet Bharara: …who said to the court, the tweet this morning was the first I had heard of the president’s position on this issue. As you can imagine, I am doing my absolute best to figure out what’s going on. Isn’t that all of us?
Anne Milgram: Yes.
Preet Bharara: He speaks for all of us and then as you point out, the importance of having credibility and candor with the court is so significant that this lawyer had to say to defend himself. “I’ve been with the United States Department of Justice for 16 years through multiple administrations and I’ve always endeavored to be as candid as possible with the court.” In fairness the judge over and over again, and you and I both read the transcript of the proceeding, does not blame the lawyers, he’s not blaming the DOJ lawyers, but obviously Donald Trump. He at one point makes the statement, he’s like there’s a problem here. If this had been a case involving Facebook and the top ranking lawyers for Facebook were in my courtroom and made a representation and then later that evening, Mark Zuckerberg tweeted something or posted something on social media saying the exact opposite. You know what would happen? I would ask for Mark Zuckerberg to appear in my courtroom the next day.
Preet Bharara: The implication being, I don’t really want to do that with the president United States maybe that’s a bridge too far, but he’s angry about it. He understands how much there’s upending of this by the president and in the longterm I think among not just in this case, the president undermines the credibility of the Justice Department over and over and over again by trying to engage in policy without consulting with lawyers by tweet when they have losing positions, it’s not good.
Anne Milgram: It’s a terrible thing. There are a few points here that we should break down. The first is a lot of people have asked me, didn’t the supreme court rule? How can the president undo what the Supreme Court did with an executive order?
Preet Bharara: Right.
Anne Milgram: That’s I think a really important conversation for us to have which is to say that the Supreme Court found, and you did a great summary of this, that the administration, it was a contrived reason that they didn’t follow the Administrative Procedure Act which is essentially the law that says we have a lot of laws in our country. We have a lot of regulations there’s a process by which things have to be done. You United States government didn’t follow the correct process and you came up with this fake reason when you look at the record it’s clearly contrived and so we’re not going to let you do it this way. Essentially you didn’t follow the process that has to be followed and then they sent it back to a lower court and they gave the administration the opportunity if they wanted to come back in to come back in.
Anne Milgram: As you know the government had already said by June 30th there’s nothing we can do. We can’t have the question. They’d already made that representation. When it comes to this question of could the court case still go on? The answer is the way the Supreme Court left it, yes, the court case could still go on. The government could come back in and say, “Well, here’s why we need this.” And they could, if time wasn’t an issue, they could litigate that, but the president cannot undo a Supreme Court decision with an executive order and it’s really important to note that everyone has to follow the law including the president of the United States.
Anne Milgram: I think what the president is doing is basically, look, he’s made immigration and this goes to his views on immigration and his politics in immigration. He’s made this one of his standard issues and so he would rather fight and have the Supreme Court tell him no again, which galvanizes his base, galvanizes people to want even more conservative I would assume, Supreme Court justices. I think he sees it as a win ignoring the law and not doing what he has to do. I think he sees as a political win.
Preet Bharara: It’s a fight. He likes to fight. He likes the message and he knows that the message will resonate with his face. By the way, in addition to those tweets, he said something else unhelpful to his own legal cause when he was asked about this issue the day after the 4th of July, on July 5th. He said when I asked him why do you need the citizenship question, he said, you need it for many reasons. Number one, you need it for Congress, for district-
Speaker 4: Good evening Mr. President for trying to get this citizenship question.
Donald Trump: Well, you need it for many reasons. Number one, you need it for Congress. You need it for Congress for districting. You need it for appropriations, where are the funds going? How many people are there? Are they citizens? Are they not citizens? You need it for many reasons.
Preet Bharara: The problem with that among other thing is that his own administration lawyers disavowed those reasons when they asked-
Anne Milgram: Right, they said it wasn’t for politics.
Preet Bharara: It wasn’t for those reasons. It was just… we’re used to the president lying about all sorts of things including whether or not he said Tim Cook as opposed to Tim [Apple 00:45:56], but when he starts lying about these kinds of things, it actually affects how his policies can be interpreted and it hurts him in court which depending on the issue is not a terrible thing.
Anne Milgram: The other thing is that he keeps tweeting out and it troubles me. His tweets suggest that the only legitimate census is for citizens of the United States. That the purpose of the census is to count citizens when United States Constitution Article 1, Section 2 requires that the United States government count every person living in this country and so he is changing what the constitution requires.
Preet Bharara: And that’s under by the way, the article that relates to Congress.
Anne Milgram: Yes. The other thing that I find really important about this is that it does matter. It matters, it’s not just the political question of districting. It matters how much funding comes from the federal government for schools. How much funding comes for roads, for infrastructure projects, and so again, this is a real effort to undercut people living in the United States by saying the only people that matter are citizens.
Preet Bharara: Okay. It’s a political question when you talk about it that way, right? It happens to be true and maybe people won’t like this, this is not quite the same issue but it’s a parallel issue. If you’re in the United States whether you’re a citizen, a legal resident, or here illegally undocumented you are actually entitled to all the rights under the constitution. You may not be entitled to vote, but you’re entitled not to be tortured. You’re entitled to have freedom of speech. There’s all sorts of things-
Anne Milgram: To be free from unreasonable searches and seizures.
Preet Bharara: Searches and seizures. It’s just… The police can’t decide to go into a housing project where they think there are folks who are not legally here and violate the constitution. That’s how we’ve chosen under our charter to treat people in the country. I guarantee you if Donald Trump started saying, well, that’s terrible, lots of people would be surprised to learn that the constitution applies to every human being in the States.
Anne Milgram: I’m glad you said that. I was thinking about it the other day as I was reading some of this. I think it’s one of the most important points, which is that you set foot on US soil, you are protected by the US constitution, the US laws period and it’s a really critical point to remember that. It seems to me that the president is trying to undercut that very core foundation-
Preet Bharara: Because probably some people don’t agree with that. I mean, there are lots of people who I think have terrible views on both sides of the aisle but there clearly is of subset of people for whom this argument resonates that if you are not a full citizen of the United States of America, you’re somewhere along the way, that lots and lots of things shouldn’t be available to you. That’s not how the country operates. You can decide to change it, but that’s not how the country is operated.
Anne Milgram: Even connecting that to the conversation we had recently about what’s happening at the border and the detention of children and their parents coming from other countries who are lawfully seeking asylum. It feeds into this whole question of do people have rights when they come to the United States regardless of whether or not you’re a citizen and I think a lot of the justification for the poor treatment that this administration has engaged in of people doesn’t matter whether or not you’re a citizen, but a lot of the justification comes from this view by the president that there are two classes of people that are citizens and there’re non-citizens and that the only people who should have rights are the people who are citizens and that is simply… it is completely contrary to the law, to the United States constitution and to our principles as people.
Preet Bharara: That’s why I think there’s some people who actually don’t care that their children who are living in squalor and in inhumane conditions at the border because in their mind their parents shouldn’t have brought them.
Anne Milgram: Right.
Preet Bharara: People shouldn’t have brought them. There’s been another bit of intrigue that I think is really fascinating on this and we’ve talked about this in other context. We’ve talked about Sarah Fabian, the hapless DOJ lawyer on this very issue who argued that safe and sanitary didn’t include provision of soap-
Anne Milgram: Soap and blankets, yeah. Clean clothes.
Preet Bharara: …blankets and toothbrushes and whatever and people wonder well, how can you make those arguments? Now you have a group of lawyers at DOJ that have been trying the best that they’re able not withstanding the difficulties of having a president who tweets terrible things and undermining things, who have represented the government on the issue of the census and they have lost and they have made representations about June 30th and we can’t go forward. Now, there’s no proof that this is the reason why they’ve withdrawn but there is now, as we learned over the weekend, a totally new set of lawyers at DOJ that will be handling the issue going forward. That is really weird because-
Anne Milgram: It’s extraordinary.
Preet Bharara: The first set of lawyers, it’s complicated stuff. Some people have been working in the District Court, in the Circuit Court, in the Supreme Court. These are complicated issues that you become very versed in over time, not just the facts, but also the law. You also have a familiarity with what the judges are thinking about these things. You have a familiarity with the record that’s been developed from within your own agency.
Anne Milgram: And remember these are lawyers who are willing to make pretextual arguments about the Voting Rights Act, right, and who in my view probably knew, okay I’m not so sure about this argument, but I’m willing to make it. They were making those arguments based on this contrived idea that it was about the Voting Rights Act. They were willing to go pretty far.
Preet Bharara: Pretty far.
Anne Milgram: Pretty far, but then there’s this line that is now the United States Supreme Court has ruled and has issued a decision and the president is trying to undo that through fiat essentially and the lawyers have stepped out.
Preet Bharara: We don’t know for a fact yet just to be clear, maybe they were summarily replaced but I think the logical thinking is that they decided we can’t go forward and make representations that undermine what the other representations we’ve just made.
Anne Milgram: Well, I think you’re right to say we don’t know what happened. It’s possible the lawyers walked in and I think probably more likely than not that the lawyers walked in and said, look, we can’t do this. You’re putting us in a terrible position with the court. It’s also possible that the bosses at DOJ, the political folks looked at how they were handling it and decided that they weren’t willing to go far enough on behalf of the president and-
Preet Bharara: Maybe.
Anne Milgram: …so took them off. I agree with you. We don’t know why, but either way-
Preet Bharara: But I’d like to know why.
Anne Milgram: I would like… and I actually think Congress should ask why.
Preet Bharara: I think the judges will… Why you had a whole bunch of lawyers who have been handling these matters. Why are they not here anymore? Look, I hope it’s the case that they decided we can’t completely destroy our credibility in front of these courts because that’ll send a signal to other people to realize maybe they should draw the line a little bit lower than they’ve been drawing it before.
Anne Milgram: I don’t want to say that this never happens, but I can’t think of a single time that it has happened where you see something that has been litigated so thoroughly, so extensively for such a long period of time by the same government lawyers and then you have the government lawyers pull out. It’s worth the court’s asking questions and also I think Congress asking questions and one other thing, if we could be a little legal and witty here for a second, which is that-
Preet Bharara: Oh, please. I love it when you say that.
Anne Milgram: You’re waiting for us to get to the legal wits
Preet Bharara: Music to my ears.
Anne Milgram: The way the courts operate and the Supreme Court and a number of other courts including the New York court and the Maryland court. The way that they look at the challenge to the census question was that there were two bases for the challenge and we’ve talked about this. One was the Administrative Procedures Act basically meaning, did the president and the administration follow the right process to put this question on the census and the second is the equal protection challenge. Basically saying that all people are entitled to equal protection of the laws and that if you put the citizenship question on you are denying people of color, minorities the equal protection of the laws.
Anne Milgram: They did not reach the constitutional equal protection question and that is common that courts will not reach the constitutional question if they don’t have to and so what we have here is now the judge in Maryland is going to reach the equal protection clause question and the administration has tried to stop that. They’ve filed briefs last Friday, but we are now coming to the point where that question will be decided which is, is it unconstitutional to ask this question? And so I think it’s important for folks to know that it’s only one sort of narrow legal issue that’s been addressed on the administrative procedures act and now comes the constitutional question.
Preet Bharara: Look, at that hearing that we were referring to in front of Judge Hazel, there was a high ranking lawyer who explained that he just found out about this thing from the tweet, but he was accompanied by an even more high ranking person, senate confirmed the Assistant Attorney General for the Civil Division, Jodie Hunt. Jody Hunt I know for a long time going back to when I as a senate staffer was investigating politicization of the Justice Department. He was the career attorney who was representing some of the witnesses that I was deposing. He’s also the former chief of staff to Jeff Sessions and the person who I called the day that Donald Trump called me back in March of 2017 to let him know that I’d gotten this call from the president and did he agree with me that it was best for me not to return the call unless I knew what it was about and he agreed with me.
Preet Bharara: I don’t know that Jody Hunt is a bad guy. My experience with him has been good but someone like that who has the benefit of having been confirmed by the Senate when issues like this arise on a regular basis and on an immediate basis, people like that should be called before committees. It shouldn’t all just be about the Mueller report and whatever’s going to happen-
Anne Milgram: Yeah, why is it-
Preet Bharara: …or not happen… These kinds of things are happening every day and I’d like to see letters requesting information and hearing dates set for these folks.
Anne Milgram: Yeah. You led the investigation into the firing of US attorneys when you worked for the judiciary committee and this whole question making the department justice political, it feels to me like there are so many examples and reasons why there should be an investigation now into the political nature of the-
Preet Bharara: You just don’t want [crosstalk 00:55:25].
Anne Milgram: I can’t say that word. I can’t say… It’s a tongue twister, but it just… it’s hard for me to understand why this isn’t happening and maybe it is. It just feels to me like it’s such an important question.
Preet Bharara: I think these things need to be happening. They need to be happening in a public way.
Anne Milgram: It’s also really important to recognize that the fact that the president is doing things that he shouldn’t do, tweeting out about the census, throwing all of this into chaos, the fact that he’s doing the wrong thing is only allowed to happen because the people at the Department of Justice are willing to go into court. Nobody’s standing up to the president. This is a really critical question of what’s happening and why is nobody saying we can’t do this and here’s why.
Donald Trump: As long as we never ever stop fighting for a better future, then there will be nothing that America cannot do.
Preet Bharara: So as we discussed at the outset and moving on, the president decided to have a particular kind of celebration. He wanted tanks, he wanted flyovers, and there’s a lot of controversy about it, there was a lot of rain, this debate about how many people were there. The president used a teleprompter. He in a prepared speech, talked about the sacrifices made by the forces fighting for independence for America and I challenge you to read a portion of the Donald Trump July 4th, 2019 speech describing the heroic military actions taken by the Americans.
Anne Milgram: I want to ask you why it is that when I read stuff like this, the first time I read it, I still don’t believe it’s possible and I don’t know why I haven’t come to understand that it is of course the world we live in. On July 4th the president of the United States said.
Donald Trump: In June of 1775, the Continental Congress created a unified army out of the revolutionary forces encamped around Boston and New York and named after the great George Washington commander in chief. The Continental Army suffered a bitter winter of Valley Forge, found glory across the waters of the Delaware-
Anne Milgram: Across the waters of the Delaware and seized victory from Cornwallis of Yorktown. Our army manned the air, it rammed the ramparts, it took over the airports.
Preet Bharara: The airports.
Anne Milgram: It did everything it had to do, and at Fort McHenry, under the rocket’s red glare, it had nothing but victory and when dawn came, their star-spangled banner waved defiant.
Preet Bharara: I think he said [Ford McKendree 00:58:10]. Which airport did he mean?
Anne Milgram: Airport.
Preet Bharara: Which airport did he-
Anne Milgram: All right. Let me read my favorite. My favorite tweet ever.
Preet Bharara: I think it was probably… it was Idlewild, right?
Anne Milgram: I mean, I don’t even know what to say.
Preet Bharara: He might hae said Reagan National Airport in advance of the [inaudible 00:58:24].
Anne Milgram: [email protected] tweeted out. Dearest, the battle for gate C4 was hard fought, but we prevailed. Alas, we ran out of ammunition, and had to lob our stores of Cinnabons at them. The sacrifices of war try our souls. #RevolutionaryWarAirportStories.
Preet Bharara: Look, I fought a lot of battles for gate C4. Every once in a while I’m in group eight.
Anne Milgram: It’s rough.
Preet Bharara: I start a battle.
Anne Milgram: It’s rough.
Preet Bharara: Group eight. Believe it or not that actually is not the thing that made me laugh the most in the last week. It was this prank played by someone, Ken Klippenstein on Twitter. His Twitter basically as I’ve said many times sucks and I hate it, but I also love it.
Anne Milgram: It can be funny.
Preet Bharara: I don’t know how to deal with my Twitter issues. I have to see someone about that, but he basically trolled Steve King, not the writer, but Steve King.
Anne Milgram: Iowa Republican.
Preet Bharara: The Iowa Republican who was found to be so racist even by the Republican party, they’ve been stripped of committee assignments and is all around terrible human being and this person Ken tweets out with a picture of Jack Nicholson from the movie, which is a great movie. My sons and I watched it recently, A Few Good Men, and he said, “Sir, can I get a retweet for my uncle Col Nathan Jessup, he’s in the marines and is spending the 4th overseas keeping our nation safe.” It’s Jack Nicholson. It’s a fictional character.
Anne Milgram: Yes.
Preet Bharara: Steve King-
Anne Milgram: Tweets it out.
Preet Bharara: Colonel Jessup and all your marines, God bless you all. You have our backs and millions of us have yours. God bless America and all her warriors defending our liberty, SK. I’m just pleased in these difficult complex trying times we can find a bit to laugh about.
Anne Milgram: Yeah. What would we do if we couldn’t?
Preet Bharara: I don’t know. All right. Next week folks we’ll be back.
Anne Milgram: Send us some questions.
Preet Bharara: We’ll try to answer them.
Anne Milgram: Thanks.
Preet Bharara: This is the CAFE Insider podcast. Your hosts are Preet Bharara and Anne Milgram. The executive producer is Tamara Sepper. The senior producer is Aaron Dalton and the CAFE team is Carla Pierini, 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.