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September 16, 2019

CAFE Insider 09/16: Scandal Survey: Donald, Brett, Andy, Felicity

  • Show Notes
  • Transcript

In this episode of the CAFE Insider podcast, “Scandal Survey: Donald, Brett, Andy, Felicity,” co-hosts Preet Bharara and Anne Milgram discuss:

— The reporting about a potential indictment of former Deputy FBI Director Andrew McCabe

— Concerns raised by spending at President Trump’s hotels

— Actress Felicity Huffman’s 14-day jail sentence for her role in the college admissions scandal

— A New York Times article about sexual harassment allegations made against Justice Brett Kavanaugh from his time as a Yale undergraduate student

We hope you’re enjoying CAFE Insider. Email us at [email protected] with your suggestions and questions for Preet and Anne. Thank you for being a part of the CAFE Insider community.


Andrew McCabe

  • Andrew McCabe’s lawyer Michael Bromwich’s letter to Jessie Liu, U.S. Attorney for the District of Columbia, 9/12/19
  • 9-11.120: Power of a grand jury limited by its function, DOJ Justice Manual
  • “True bill” definition, Legal Information Institute
  • “Types of Juries,” United States Courts
  • “On the Mystery of the McCabe Grand Jury,” Lawfare, 9/13/19
  • “Andrew McCabe’s legal team asks Justice Dept. if grand jury rejected charges in his case,” Washington Post, 9/13/19
  • “Prosecutors recommend indicting Andrew McCabe over ‘lack of candor’ about media leaks,” Politico, 9/12/19

Spending at Trump properties

  • Donald J. Trump’s tweets addressing the accusations that he’s enriching himself, 9/16/19
  • Donald Trump’s tweet: PLENTY OF OIL!, 9/15/19
  • Donald Trump’s tweet about meeting with Iran’s leaders, 9/15/19
  • “What Is the Emoluments Clause?,” Encyclopedia Britannica
  • “The Text and History of the Foreign Emoluments Clause,” Constitutional Accountability Center, 2018
  • The United States Court of Appeals for the Second Circuit decision, Citizens for Responsibility and Ethics in Washington v. Trump (2019)
  • “U.S. Appeals Court Reinstates Emoluments Case Against Trump,” New York Times, 9/13/19
  • “Air Force says it sent crews to Trump’s Scottish resort up to 40 times,” Politico, 9/12/19
  • “McCarthy defends military stopovers at Trump’s Scottish resort: ‘It’s just like any other hotel,’” Politico, 9/10/19
  • “Pence stays at Trump’s Doonbeg resort hours away from official meetings,” CNN, 9/4/19
  • “Trump Has Just the Place for the Next G7 Meeting: His Own Golf Resort,” New York Times, 8/26/19
  • “When Trump visits his clubs, government agencies and Republicans pay to be where he is,” Washington Post, 6/20/19
  • “DoJ: Christie spent big on hotels,” Politico, 11/9/10
  • “$16 for a Muffin?! A Justice Department Boondoggle,” The Atlantic, 9/20/11

Felicity Huffman sentenced

  • The plea agreement United States v. Felicity Huffman
  • “By Turns Tearful and Stoic, Felicity Huffman Gets 14-Day Prison Sentence,” New York Times, 9/13/19

Justice Brett Kavanaugh

  • “Brett Kavanaugh Fit In With the Privileged Kids. She Did Not.,” New York Times, 9/14/19
  • “New York Times apologizes for ‘inappropriate and offensive’ tweet about Kavanaugh sexual misconduct allegation,” Washington Post, 9/16/19

Mike Pence

  • “Pence claims a prized racehorse bit him. The farm manager who was there isn’t buying it.,” Washington Post, 9/13/19

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

Anne Milgram:             I’m Anne Milgram.

Preet Bharara:              How are you Anne?

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

Preet Bharara:              I went to a concert this weekend.

Anne Milgram:             Yeah. You’re like my source of all information on music and hard and movies.

Preet Bharara:              No, I’m not. No, I’m not.

Anne Milgram:             Well, it’s sad for both of us.

Preet Bharara:              I learned a lot about aquariums.

Anne Milgram:             Yeah, it’s true. We went to the Shedd Aquarium in Chicago this weekend.

Preet Bharara:              Again?

Anne Milgram:             Yeah. Dude, we’re on a United States Aquarium Tour.

Preet Bharara:              I saw Brandi Carlile.

Anne Milgram:             Who is?

Preet Bharara:              An amazing singer. I think it was her debut with Madison Square Garden because she was very thrilled that you had a sold out crowd there.

Anne Milgram:             Did you go for you? I know she’s…

Preet Bharara:              I’m big Brandi Carlile fan, yeah. I guess she’s country folk. She also rocked out a little bit. She did a Led Zeppelin cover.

Anne Milgram:             Which one?

Preet Bharara:              I knew you going to ask me that. I can’t remember.

Anne Milgram:             Look, I’m one trained investigator.

Preet Bharara:              Anyway, she’s great. I tweeted about it, and a lot of people were like, “Who is that?” You should go check her out.

Anne Milgram:             Well, I asked that question too.

Preet Bharara:              I’ll play some music of hers after.

Anne Milgram:             Maybe our listeners don’t know that you also introduced me to some other country music last week before we started taping, Little Nas X.

Preet Bharara:              That’s right.

Anne Milgram:             What was it? I rode my horse. My horse rode me. No, sorry.

Preet Bharara:              Old Town Road, which is my kids love Old Town Road. No, the Mike Pence song would be bitten by a horse. Mike Pence is like, “I took my horse down to old town road, and he bit me.”

Anne Milgram:             Stupid.

Preet Bharara:              All right. Okay, so lots of things going on.

Anne Milgram:             Yes.

Preet Bharara:              Let’s maybe start with Andrew McCabe.

Anne Milgram:             Yeah.

Preet Bharara:              Andrew McCabe is the Former Deputy Director of the FBI, for a time he was the acting director of the FBI after Jim Comey got fired. It looks like he’s going to be indicted by the U.S. attorney for the District of Columbia. There’s all this speculation in the last week, his lawyer has sent a letter to the U.S. attorney. There has been reporting that the grand jury, presumably the grand jury that was hearing the potential case against Andrew McCabe met and no one has seen an indictment. The reporting is that the U.S. attorney wants to proceed with one and that the deputy attorney general denied an appeal, not a formal appeal through a court process, but the request for reconsideration of that decision and that was denied.

Preet Bharara:              Everyone is expecting, not everyone, but lots of people are expecting an indictment. One of the things people are speculating about I think overly, and I’m wondering what you think is that the prosecutors went to the grand jury as you must in order to obtain an indictment, and the grand jury rejected the indictment. In other words, a no true bill as it’s called. The true bill is basically the vote on an indictment proposed by the prosecutor. If you don’t get the proper vote, 12 out of 24 as long as you have a quorum then no indictment issues. Lots of people are speculating that, that’s what happened. I don’t know quite what basis other than some speculation in the press.

Anne Milgram:             Yeah. There were a couple of news reports that said that, information was coming out that there was a no true bill, which means the grand jury chose not to indict. I think, let’s start at the grand jury piece for a second. When we were here last week, we talked about the fact that we expected McCabe to be indicted because we knew that his lawyer had gone in and had asked the U.S. attorney, and the Deputy AG basically said, “Please don’t charge.” Then it came out that that request was denied, right? It looked like everything was going to the grand jury.

Anne Milgram:             Now what happens with federal grand juries and state grand jury’s too, but it’s not uncommon for a grand jury to meet multiple times. One of the things I think people should understand is that this is a pretty simple case, right? If you were to present this, you and I both I think agreed it should not have been presented, but if you were to present it, it’s not a complicated case. You’ve got a few witnesses who say, “Here’s what happened. McCabe leaked this story to the press. He was asked about it by the FBI. He was asked about it by the Inspector General’s office. He was under oath, and he lied.” It shouldn’t take that long, I would think to present a case like that.

Preet Bharara:              I think you can do it in the morning.

Anne Milgram:             I think so too.

Preet Bharara:              Maybe even less depending on how summary You want to be. That just leads me to another background point that I think is important for the discussion about this. Grand jury is not a trial. There is no, in the federal system in particular, there’s a lot of leeway for the prosecutors. The rules of evidence don’t really apply.

Anne Milgram:             The defendant is in prison.

Preet Bharara:              The defendant is in prison. The defense lawyer has no right to be in the grand jury. You could have a very complicated case that you can put in three hours because you don’t have to call the eye witnesses. You can have one FBI agent, or some other witness who’s a summary witness who puts up some charts and say, “Here’s what the trades were that were made in this insider trading case. Here’s the indictment. You read it, you give them instructions on the law, and you vote.” It’s a very, very, very, depending on how lengthy you want to be summary process.

Anne Milgram:             In addition to what you just mentioned, I think it’s important for folks to understand that the prosecutor isn’t obligated to put in the defendant’s defenses, the arguments against why they shouldn’t be indicted. It really is a very one sided, very quick process. Usually straight, quick is not always the right word, but here I don’t think it would be complicated. Now that being said, there still are times where grand juries meet repeatedly either because certain witnesses aren’t available, or the government isn’t ready to ask the grand jury to consider charges.

Anne Milgram:             The reporting here was that this was a prior grand jury that this was a grand jury that was asked to come back. Again, we don’t know whether or not that’s accurate. What that I think has led people to believe is that the grand jury had heard the evidence and then was brought back to consider an indictment, but we don’t know that. It’s worth just saying that it’s possible the grand jury was brought back to put additional evidence in or to put the final evidence in. It’s possible that they weren’t asked even yet to consider an indictment.

Preet Bharara:              Right. The one thing that I think is accurate about the reporting, and the “punditry” which we’re apparently a part of now, is that a no true bill, the rejection of a prosecutor’s proposed indictment by a grand jury is in fact very, very, very rare.

Anne Milgram:             Yes.

Preet Bharara:              Then we should talk about why that is. The popular phrase is, “grand jury will indict a ham sandwich.” I have been seeing that on TV a lot.

Anne Milgram:             Saul Locker, he’s a near stay judge.

Preet Bharara:              Who’s famous for other reasons too.

Anne Milgram:             Later charged and sentenced connected with a mistress, I think or something.

Preet Bharara:              Some weird stalking through Jersey.

Anne Milgram:             Sentenced by judge Anne Thompson who appeared on our podcast with us My Judge.

Preet Bharara:              Wow. It’s a small world.

Anne Milgram:             It all comes back.

Preet Bharara:              One reason it’s rare is that the burden of proof is much lower than when you have a trial is just a probable cause. Number two, you don’t need unanimity. You just need a majority of the grand jurors. Number three, prosecutors who are good at their jobs are very careful to present cases that they think should easily meet the threshold requirement of the proof. Here’s another reason I think I haven’t seen people talk about, and that I experienced when I was a prosecutor. I don’t know if you did, you go into the grand jury and maybe you decided you want to be fairly quick about it because you don’t want to make the grand jury your life’s work, and you just need to get over the threshold.

Preet Bharara:              Let’s say you have tons and tons and tons of evidence, and you decide to bring one or two witnesses before the grand jury because you think that’s sufficient. Then, when you’re presenting the witness’s testimony, your grand jury will have to ask questions and sometimes they start to ask them questions that show they’re a little bit uneasy, or they think you don’t have enough. When that happens smart prosecutors know, assuming that they have a good strong case, they just didn’t bring enough evidence to the grand jury, which sometimes happens. You have a particularly, grand jury that day or for whatever reason your witness doesn’t do as good a job. You pull the vote, right? Meaning you don’t ask them to vote.

Anne Milgram:             You don’t ask them their concern.

Preet Bharara:              The frequency with which there might be a skeptical grand jury is much greater than the number of times as a no true bill because smart and savvy prosecutors realize, maybe I can come back with more evidence and more witnesses. I’ve done that. I’ve seen other people do. I remember there was a case once, but it is true that the grand jury is, to use a metaphor of the canary in the coal mine. If your grand jurors are starting to have doubts about your case, or they’re asking questions that are difficult for you to answer, or they’re skeptical about the theory of the case, that is a sign that it may be a problematic case. It may not be because something weird might be happening, but it is-

Anne Milgram:             It may not have put in enough evidence.

Preet Bharara:              Exactly. I’ll tell you the one time I remember I got paged by a colleague of mine on a case that I was working on. My colleague took a break from the grand jury and said, “They’re asking a lot of questions on stuff that I didn’t really think was problematic, we didn’t ask for a vote that day. Totally appropriate, and we said I could go back to the grand jury, and we’ll bring more evidence, and we’ll have more witnesses, and they voted to indict.” You know what, that initial skepticism they had about the seriousness of the case sat with us. You know what happened ultimately a trial?

Anne Milgram:             What?

Preet Bharara:              [inaudible 00:08:53].

Anne Milgram:             Yeah.

Preet Bharara:              That tells you something. Anyway, I thought it was important to make clear some of the reasons why the non-return of an indictment is so rare.

Anne Milgram:             If it’s true that there’s a no true bill here, it is a very rare thing, and it is an extraordinary thing. It would mean remember that the standard of proof of a grand jury is probable cause, meaning that it’s more likely than not that a crime was committed and that it was committed by this person. Whereas, the standard at trial is proof beyond a reasonable doubt of much higher standard. If you cannot get through a grand jury, you will not get through a trial in my view. Your point is well taken that maybe the government hasn’t put in all the evidence, but it’s hard for me to see that here. Again, because this is a pretty lean basic question of did McCabe lie?

Anne Milgram:             This isn’t a complex robbery, multi-state, drug trafficking where there are a lot of dots that have to be connected. This is a pretty straightforward matter. I would be surprised, particularly where you have to prove a lie if the government hadn’t put everything in.

Preet Bharara:              Yes. I was making a general point because I don’t agree with some of the analysis that I’ve been seeing, which is, in every case where there’s a no true bill, that must mean that there was tremendous and ridiculous government overreaching. That’s nonsense. I’ll give you an example of cases that we’ve talked about. It is widely reported when there’s a bad cop shooting.

Anne Milgram:             I was about to say this. Cases that toss all the time in the state.

Preet Bharara:              The state, the DA takes it to the grand jury, and then everyone knows that the grand jury didn’t indict. Then lots and lots of people, including in the case of Eric Garner say, well then the Fed student, and it’s not quite the same thing. It’s not the state going back to another grand jury, people will say, and I tended to agree with this and the federal case, although I don’t know all the facts. Well, just because that grand jury wouldn’t indict doesn’t mean that the federal government shouldn’t seek an indictment with federal grand jury.

Anne Milgram:             I agree completely. There are often different laws, and different ways.

Preet Bharara:              That’s just an example. Because one of the questions we’re going to address in a minute is whether or not if there’s a no true bill, is it appropriate for the U.S. attorney to go back into another grand jury and try to seek an indictment? The fact that people are saying that automatically is nonsense and ridiculous and crazy. I think it’s not true and is unfair.

Anne Milgram:             Well, just to go back for one second. Where I’ve also seen cases tossed in the state are when there are police shootings, and the community is upset and disappointed and angry with the police that there are cases completely unrelated that will get tossed. I’ve seen when I was in the DA’s office, there were days that the grand jury, they were voting their disapproval. They were making statements about broader societal things that were happening and not on necessarily the specifics of a drug case, but they were voting, no true bill. I’ve seen it. I think the bottom line is there could be a lot of things happening here.

Anne Milgram:             Remember that this case is unusual in many ways because it’s so high profile because everyone in Washington, D.C. who’s sitting in that grand jury, a lot of people will have seen the president tweeting that McCabe should be charged to tweeting things against McCabe. They will have seen this whole conversation nationally about whether McCabe lied or not. It is possible in a situation like this where the grand jury thinks that, “Okay, the government gave me this small window into what they think happened, but I’ve read all this stuff. I’m not comfortable with the government going here.” We don’t know but…

Preet Bharara:              I hate to predict, but I’m going to put myself on the side of people who don’t believe that there was a no true bill. In other words, there’s all the speculation in the press that the grand jury may have failed to indict. I don’t buy it A, because it’s so rare. B, because smart prosecutors know how to pull. C, maybe I’m naive about this, but it’d be a pretty insane leaking situation where the whole world is watching and who within the U.S. attorney’s office would have leaked it. There are criminal penalties for that, that’s grand jury secrecy stuff. I think there’s probably some other explanation. I’m not ready to jump on this bandwagon of lots of people saying they must’ve rejected the indictment.

Anne Milgram:             Right. I agree with you. It is way too early to know and having read the reporting, it is not clear to me in any way that the grand jury voted a no true bill. There are two things just to add, one is that I have seen information about grand jury’s leet. Sometimes it’s not the prosecutor, sometimes it’s the grand jury wardens, the people who run, sometimes it’s the court reporters and sometimes it’s the tackle at courthouse.

Preet Bharara:              We’ve prosecuted cases, during my tenure where there were leaks out of the grand jury.

Anne Milgram:             It’s unusual, it’s rare. But, it does happen.

Preet Bharara:              it’s a combination of unusual things, right?

Anne Milgram:             Right.

Preet Bharara:              It’s like anything else. Each of the things we’re talking about here has a very, very high probability and you’re multiplying them against each other.

Anne Milgram:             Would be rare, yes.

Preet Bharara:              I’m playing the odds a little bit, the likelihood of a no true bill.

Anne Milgram:             It’s that how it works?

Preet Bharara:              Yeah, I think so.

Anne Milgram:             Is this Math?

Preet Bharara:              Yes. You take a low probability event, you multiply it by… the low probability event being a no true bill multiply by another low probability event independent of the first one, which is if there’s a leak, I don’t know that I necessarily believe it, but we should still engage in some conjecture.

Anne Milgram:             Yes.

Preet Bharara:              As follows, to further the point I was making before. There’s a reason why this is important to folks because it is a big deal if there’s no true bill, given all the advantages that government has. Given that this is a high profile case, and it’s not so complicated, and you don’t have the same excuses like the type I was talking about in general, complicated case where they didn’t bring enough evidence to bear. It’s pretty simple. Here’s what he said, here’s the truth, here’s a proof of intent. Then he wanted to mislead investigators. If you don’t get a true bill, if the grand jury rejects your indictment, under what circumstances can you go back to that or another grand jury? There’s a reason why the requirement, and the department is that you must get the personal approval of the United States attorney. You have to go up that high within your office before you can decide to go back into the grand jury.

Preet Bharara:              Remember, the U.S. attorney does not improve, at least in my office I was not required to approve all indictments. There were certain ones that I would have to and some just out of discretion that I wanted to always make sure that I was approving. In an office where you have hundreds and hundreds of thousands of indictments, the U.S. attorney is not approving them, but you are required to approve a return to the grand jury if you are rejected in the first place. That suggests that it’s a big deal and it’s an important thing. I’ve been trying to rack my brain and remember if I ever was asked to authorize a return to the grand jury, and I think I did. I can’t remember the details.

Anne Milgram:             Do you remember any of the facts?

Preet Bharara:              I don’t remember any of the facts, but I remember some of the reasoning might have been he was a junior prosecutor who presented a case. As we’ve been describing, there was a very substantial evidence. They thought they could streamline the evidence they were bringing to the grand jury and provided maybe a fraction of the evidence that they had. Rather than waiting and realizing that maybe the grand jury wanted to hear more, which they had, which the government had just wasn’t presenting it in that grand jury session. Or maybe it was that, they wanted to proceed because they wanted to get the ball rolling, and a witness wasn’t available, or the main case agent wasn’t able, it was something like that.

Preet Bharara:              Nothing nefarious, nothing out of the ordinary. It didn’t suggest that the government wasn’t proceeding in good faith, but someone asked for a vote when they should have actually no cross their T’s and dye their eyes a little bit more and brought in another bucket full of evidence for the grand jury. I authorized it, went to the grand jury and without a hiccup, my recollection is the indictment was obtained and then I never heard again about it. I am pretty confident that a conviction was obtained and that it was all fair and just. It is still really rare and needs to get the approval of as attorney because you don’t want an abuse of the grand jury system. It’s just not true in my experience at least that it always means something bad does happen.

Anne Milgram:             A couple of quick points just going back to where we were. I think McCabe’s lawyer has done something very strategic in what he’s done. You and I are sitting here, I think having a very honest debate about we don’t actually know whether a true bill was voted or not. It’s in many ways the assumption should be that they haven’t asked for one yet before we know. What McCabe’s lawyer did was he sent a letter, which was then given to the press to the U.S. attorney for Washington, D.C. Jessie Liu basically saying, “Look, we’re hearing reports that there was true bill voted and if so, you shouldn’t represent it.” Raising this exact question you’re talking about now that it would have to go to the U.S. attorney for DC to basically approve submitting it to the same vendor or a different grand jury. So, submitting it again.

Anne Milgram:             What the lawyer has basically done is on the very thin possibility McCabe’s lawyer on the very thin possibility that there was a no true bill. He’s basically putting this out publicly to say, “Look, this isn’t fair. It’s not just.” He goes through, and we can talk about this in a minute. He goes through what the legal standards are for approval and that it is a pretty extraordinary thing, once a no true bill has been granted to authorize going back. You and I are talking about different… there’s different buckets like the one you just went through as U.S. attorney is where you believed that there was probable cause, you believe that you had sufficient evidence to prove a case at trial. You believe that the presentation to the grand jury lacked something and could have been done better that justified and that it was in the interest of justice and there was a federal interest in going forward.

Anne Milgram:             All of that is consistent with the U.S. attorney’s manual on the rules. The question here is, if there was a no true bill, is it in that bucket or is it in the bucket of the grand jury got all the evidence? It’s a very simple case, and the grand jury made a decision that, “Look, we don’t think this is the right thing to do.” If that’s the case, I feel very strongly that there should be no additional presentation to the grand jury. This is the way the United States system of justice works, that prosecutors don’t make indictments, grand juries make them. It’s one of my pet peeves when you hear prosecutors say, “I indicted.” Prosecutors never indict grand juries indict and that power belongs to the people of America who said on grand juries.

Anne Milgram:             If it’s true that a grand jury here considered the evidence against McCabe and found it lacking, which I think is a reasonable… we don’t know yet, but if that happened, that would be in my view, very likely a judgment on the evidence given this case and on the sufficiency of the evidence.

Preet Bharara:              Yeah. Look, everyone’s watching and everyone knows it’s a high stakes case and everyone knows that there’s a lot of controversy about bringing such a case. Yeah, speaking in the general, I stand by what I said speaking in this specific with respect to this, you would expect if they were presenting it to grand jury, and they asked for a vote, and they didn’t get the vote, that’s a big problem. Because, the ultimate question here is beyond speculation about what happened or did not happen in the grand jury. Should Andrew McCabe be indicted? I think we both said before that given the circumstances, given the context of the president of the United States basically bellowing for him to be retaliated against, it gives a lot of pause to folks who worry that criminal justice is now proceeding based on what the president’s whims are and who he thinks his critics are as opposed to what the law and the evidence and proportionality require.

Anne Milgram:             Yes.

Preet Bharara:              I guess the other possibility is that an indictment was returned, and it remains under seal. We had sealed indictments all the time and one reason you have a sealed indictment is because you don’t know where the defendant is. Another reason you might have a sealed indictment is you know you expect co-conspirators to be indicted later, and you don’t want to tip them off as you have said wisely and multiple times today. This is a simple and straight forward case, whether it should be broad or not as a separate question.

Anne Milgram:             I cannot see doing this under seal, not this one.

Preet Bharara:              It’s a short indictment and there’s no allegation of a conspiracy with anyone else. There’s no other people. By the way, all this information, you know what the basis of the indictment would be is all public. It’s a subject of a publicly released inspector general report.

Anne Milgram:             Yeah. It’s impossible for me to think that it is under seal. The spokesperson for the U.S. Attorney’s office said, “If there was an indictment returned, we would have issued it with a press release.” Which sort of said to me also, it’s not under seal, but I think of all of the possibilities that they didn’t ask for an indictment. They asked for an indictment and it was not built, or they asked for an indictment got one, and it was sealed. I think the likelihood that they got one and sealed is very, very low, lower than the odds in your other mathematical equations.

Preet Bharara:              I thought we’d be talking about all this spending that Donald Trump seems to be in part directing to his own properties been bothering me a lot. As we have been conversing, and the President of the United States has tweeted a little bit on this point. Shall I read you the tweet?

Anne Milgram:             Yes, please.

Preet Bharara:              “They failed on the Mueller report. They failed on Robert Mueller’s testimony. They failed on everything else. Now the Democrats are trying to build a case that I enrich myself by being president. Good idea, except I will and have always expected to lose BILLIONS, BILLIONS OF DOLLARS..” It’s not a period. It’s not an ellipsis.

Anne Milgram:             It’s two dots.

Preet Bharara:              You got your two dots.

Anne Milgram:             So complicated.

Preet Bharara:              It’s just very metal. What does two dots mean?

Anne Milgram:             I don’t know.

Preet Bharara:              It’s there, but then you still, okay, so maybe there’s a second tweet, but you still I think use this standard three dots.

Anne Milgram:             I think so too. Also, we’re still waiting to see the presidents taxes to see if it is indeed billions and billions of dollars. I too have been very upset about this.

Preet Bharara:              Here it is. That the tweet continues and begins with four dots.

Anne Milgram:             A total of six dots.

Preet Bharara:              A total of six dots. It’s three dots per tweet, which is I think the right proportion. Yes. He says, “I’ve always expected to lose BILLIONS of DOLLARS for the privilege of being your president and doing the best job that has been done in many decades. I’m far beyond somebody paying for hotel room for the evening or filling up a gas tank at an airport. I do not own these radical left Democrats are crazy capitol, CRAZY, Obama Netflix.” You think he’s making a viewing recommendation.

Anne Milgram:             I’m not sure what that is.

Preet Bharara:              Does he know that Obama doesn’t own Netflix? Is it like Tim Apple? Obama Netflix.

Anne Milgram:             Then if the person feels that way, this is answered very easily through a congressional investigation in which there is an investigation into how it is that spending at his properties have gone up so dramatically around the world. Why? For example, is the air force staying in Scotland at much higher rates than they had previously stayed? There are legitimate, and I think fair questions that need to be answered because in my view, I don’t think the air, there are certain regimented parts of the United States government and so take out where Donald Trump stays and where Mike Penn stays. Although I will tell you, I think it’s crazy that Mike Penn three hours from where his meetings were, not just because of the travel time but because of, it’s an incredible expense because you’re not just talking about the vice president, you’re talking about security staff, you’re talking about his team of people from the White House. You’re talking about a lot of people who then have to travel three hours in each direction. That’s crazy to me.

Anne Milgram:             The better place to start with an investigation would be the Air Force because the air force is a pretty regimented bureaucratic place, and the way that those decisions should be made about where airplanes stop en route from one country to another. It’s probably, in my view, it’s probably set in a particular way and there has to be an explanation in my view that goes beyond the normal thing that you and I would expect to account for. I think we have it here. For example, the number of refuel stops by the air force planes at Prestwick Airport in Scotland row significantly. It was in 2017, 180 and then in 2018 it was 257 and now already this year it’s 259 and 220 of those were overnight stays. There are questions that are easily answerable about why they’re such dramatic increases, and those increases benefit one person and that’s the President of the United States.

Preet Bharara:              Can I digress for a moment?

Anne Milgram:             Please, yes. I can see it in your face there’s something.

Preet Bharara:              I’m looking at it while you were giving an excellent explanation, and I happened to be reading Donald Trump’s tweets from a few minutes ago, we’re taping on Monday morning, September 16th he’s tweeted a lot today. I missed a lot. My favorite, I guess this was last night, which I missed all caps, “PLENTY OF OIL.” That’s the whole tweet.

Anne Milgram:             Plenty of oil?

Preet Bharara:              Plenty of oil.

Anne Milgram:             Is that for the planes?

Preet Bharara:              I don’t know, maybe he’s talking about the planes he’s talking about that around. Here’s just another thing that is worth mentioning. It’s sort of out of what we’re talking about, but it goes to the heart of why you can’t believe anything the president says. Because he just lies over and over and over again. My favorite lie to the extent I can say that in the last day is his tweet from last night where he said, “The fake news is saying that I am willing to meet with Iran, no conditions. That is an incorrect statement as usual.” I literally watched a clip this morning, a montage of Donald Trump’s saying over and over and over again and also his Secretary of State, Michael Pompeo saying he’s willing to meet with Iran with no preconditions.

Anne Milgram:             No conditions.

Preet Bharara:              No conditions. He’s just a liar.

Anne Milgram:             Yes.

Preet Bharara:              When he says this stuff about having nothing to do with directing business to his properties. Yeah, maybe in a different universe you would give him the benefit of the doubt and that might be true.

Anne Milgram:             That’s a good point.

Preet Bharara:              You can’t credit anything he says at all.

Anne Milgram:             Can we go to one other example? We should just say this is an area that in my view, very much needs to be investigated and congress should already be investigating it and should expand it. Because you’ve got Trump’s properties in Washington, DC, you’ve got these trips to Scotland with the Air Force, you’ve got Mike Pence’s trip in Ireland, you’ve got the president asking that the G7 next year be held at his resort in Florida. There’s just countless example. The bottom line in my view is, look, when you’re the president of the United States, you don’t get to benefit personally, financially. You should actually, even if people would have otherwise stayed in your hotels, they should not stay there because there should be no appearance even that you’re benefiting.

Anne Milgram:             I know that’s a pretty harsh line, but the reality is that the U.S. government can’t be for sale. In fact, it’s unconstitutional as we know for the president under the Emolument clause to benefit financially from a foreign government. Let me just read you one thing that I find particularly interesting, and I want to take it back to our experience at DOJ. I don’t know if you traveled at all DOJ.

Preet Bharara:              I did.

Anne Milgram:             I traveled a lot when I was at Main Justice.

Preet Bharara:              When I was the U.S Attorney, I think for the duration, the maximum you were allowed to spend on a hotel room was $224.

Anne Milgram:             When you would go to a city or a place, you basically look for a hotel that takes a per diem. There are rare times that there’s no hotel available because there’s a conference or meeting.

Preet Bharara:              Well, your friend Chris Christie and people forget about this when he was U.S. attorney in the administration before mine abused that. Chris Christie is the subject, by the way, of an inspector general report that’s pretty harsh about him.

Anne Milgram:             Very much.

Preet Bharara:              Where if it’s the case that you must travel for business and go to a city and there was no hotel room available for $224. If you’ve expended some due diligence to try to look for one, then you can get a waiver, and you can go over. It was shown in this inspector general report, I believe that Chris Christie routinely was staying at much more expensive hotels after doing basically no due diligence.

Anne Milgram:             Some of them in Connecticut, it’s just actually drivable.

Preet Bharara:              I don’t remember where they were, but I will tell you that as a result of Chris Christie’s bad conduct as United States attorney in New Jersey, when the Obama administration came in, they were strict guidelines on the approval of all travel of U.S attorney. Literally, anyone in my office without getting very substantial approval, could go travel around the world, do interviews or whatever. Only the politically appointed the United States attorney. In other words, the head of the office, I had to get someone in Washington in advance to approve my hotel and the hotel rate because of the abuses of Chris Christie.

Anne Milgram:             Yeah. Look, even as a line attorney at DOJ, we didn’t go over the per diem except in extraordinary circumstances where there literally wasn’t another hotel room, and you would have had to have driven 45 minutes or an hour and you’re in grand jury all day and the decision was made, “Okay, you can spend $20 or $50 more.” It was never anything like this. I was looking at, in April 2017, when Trump was at Mar-a-Lago, his resort and hosted the Chinese president there. They were there for four days, the government paid at least $30,000 on meeting rooms and hotel lodgings. Here’s my favorite part, the secretary of at the time, Rex Tillerson, he got the Adam Suite, which is known for its double size Jacuzzi Tub. The deputy chief of staff was assigned to the Bondian Bungalow, which had a private meditation garden.

Anne Milgram:             Here’s my view. Look, you worked for Donald Trump, maybe you need a private meditation garden. Maybe it’s stressful, but that was 300% over what the per diem was supposed to be. That’s the kind of thing where no line attorney, no other government employee gets to do that or should get to do that because it’s the peoples. These people hold jobs in the public good and they work for the public, and the public should not put up with people spending that kind of money.

Preet Bharara:              Look, I’m prepared to believe actually that in many ways, I don’t know if it’s true, but I’m prepared to believe that the president has lost money from being the president and that his brand has suffered. I hopefully, I certainly think his brand is suffered and that in some areas he’s doing less brisk business because of his reputation as president in this country and around the world. It is also true that that doesn’t excuse any of this other stuff, any of this straight. It’s not just the profiteering, it’s not just that you can put a dollar value assigned dollar value to how many nights military officials or others are spending at Trump properties. It’s the advertising value, of the President of the United States constantly promoting his brand on his Twitter account out of the White House. It’s the kind of thing that if I did, or you did in any position other than the presidency, you’d be booted.

Anne Milgram:             Yes, and rightfully so.

Preet Bharara:              You would actually be booted and rightfully so.

Anne Milgram:             It’s the appearance also of corruption, and look the truth of the corruption, whether or not the president is corruptible for a dollar or 1.6 million or 3.1 million, there are all different estimates on how much the president may have made out of people staying at his hotels. It doesn’t really matter. It’s still wrong.

Preet Bharara:              I mean, it also doesn’t make any… these people who do these things, that you know is going to bring them in for criticism, and they do them anyway. I find that fascinating. I mean, I think he thinks it’s a point of pride that these goody goodies have a problem with how he’s going about doing this. I mean, you know that lots and lots of people, and not people who are on podcasts or on television, but a lot of ordinary people I think are a little angry at the idea that he’s trying to send people to his own hotels. Why do that? Now the problem is maybe in some instances, which should be investigated, he has had a hand in it and played a role in directing business to his properties and has suggested the G7 be hosted by one of his properties.

Preet Bharara:              He’s also sending a very strong message to lots of other people without having to tell them to do so, “That if you want to make me happy, you stayed at Trump property.”

Anne Milgram:             Or you host a fundraiser there.

Preet Bharara:              Yeah. People who have their own volition or deciding to go to a hotel or go to a Trump hotel. Why wouldn’t you pick a Trump hotel? Because, you know it can’t hurt. It’s going to create some favor with the president. That’s sort of implicit in all of this conversation that he has and all this tweeting that he’s doing, and it’s gross.

Anne Milgram:             There’s an understanding it appears that people hold their political fundraisers at the Trump properties and that it’s more likely to have the president.

Preet Bharara:              Holiday parties.

Anne Milgram:             Exactly. It’s more likely that the president shows up. If you’re running for office, and you’re Republican, and you want the president at your fundraiser. There’s a quid pro quo that’s a soft one, but there’s still a quid that’s going on here. One of the things I think that’s lost in all of this is that you don’t have to be the president of the United States. You get to decide whether or not you run for office and whether or not you hold that role. Donald Trump can stay in his private capacity. He can run all his businesses, he can do anything you want. That’s legal to try to brand his businesses and get more people there.

Anne Milgram:             Once you’re the president of the United States the rules change, and they have to change. Trump is trying to essentially use the presidency to promote his brand, and it’s not okay. I think you and I both feel strongly about this impact because of our service at the Department of Justice. I remember when going to conferences under… Remember that whole muffin day thing?

Preet Bharara:              Yeah, very well.

Anne Milgram:             It might’ve been when you were U.S Attorney, but there was a moment when someone had ordered from a caterer that was way too expensive, and the cost of a meeting was way high. It was basically coffee and muffins and the media over, I don’t remember the specifics.

Preet Bharara:              They went bananas.

Anne Milgram:             The media went bananas over this.

Preet Bharara:              The facts weren’t quite as bad as they were reported. You know what? The department took it really seriously.

Anne Milgram:             Yes.

Preet Bharara:              Everyone got a lecture, everyone got training. They issued new guidance.

Anne Milgram:             To the point where you would be at a conference, and you couldn’t take the muffin, you would literally, I would literally be there from like nine to five, and I’d be like, “Well, I’m going to take water.” Because otherwise, water is like in a central rate. Beyond water, you wouldn’t take a Bagel because of the guidance was so strict. I think that was over the top as well. Frankly, I don’t think you have to eliminate all muffins and Bagels, but you know what? It was a rule, and I followed it and everybody that I knew followed it. The idea that the president just makes up his own rules I think is pretty offensive, particularly for people.

Preet Bharara:              This all gets to a question that gets asked a lot and is asked by one of our listeners Tom. He says, “Hey Anne and Prett, why don’t these simple common sense anti-corruption rules apply to the president? Why is it not improper for him to receive value from those who might wish to influence his decisions? If the answer is it’s because he’s the president. So anti-corruption rules don’t apply to his office, then we have a serious problem.” Well, in part, you’re correct. Like security clearances and like declassification principals, various aspects of anti-corruption rules and practices do not apply to the president. That’s one of the things we’re looking at on the task force that I’d share, that I co-share with Christie Todd Whitman at the Brennan Center.

Preet Bharara:              Now, the one recourse that people do have, we’ll see how this works out, is to allege a violation of the Emoluments clause. It’s the clause in the constitution nobody ever heard of before until Donald Trump became president, which was essentially a principal announced at the beginning of the republic to make sure that that leaders in the United States did not get indirectly bribed by foreign powers, so that we would be independent from foreign powers. There have been suits brought that have had varying levels of success so far, alleging that there’s a violation of the Emoluments clause because Donald Trump is basically getting paid by foreign governments and by people who want to have sway over him by accepting their business at his various hotels.

Preet Bharara:              That had a setback in the southern district of New York a couple of years ago, the case was dismissed on account of lack of standing, which means that the people who were bringing the suit, the District Court judge found the people bring the suit we’re not entitled to allege that they were harmed by the president. Just in the last few days, the Second Circuit Court of Appeals has reversed that ruling and essentially reinstated the Emoluments clause case.

Anne Milgram:             I expect it will go to the supreme court, whether it’s from the second circuit. There’s also a matter pending in the DC circuit in Washington, D.C., I think that this is something, it’s a matter of constitutional interpretation in law. I think it will go to the Supreme Court. What’s important, I think also about the Emoluments clause is that it’s really clear in saying that the president gets a salary and that’s it and the president doesn’t get any financial benefits otherwise. Here’s something that’s really interesting and I think we should follow the Emoluments cases closely because I do believe that this goes to the core of the question that our listener asked, which is, how do you hold the president accountable? Beyond norms, which have generally applied. Frankly, most presidents follow those norms is one-

Preet Bharara:              Jimmy Carter had a peanut farm and I can’t remember now if you put it in a blind trust or he had to sell it before he became president.

Anne Milgram:             That’s the norm. There’s also obviously the avenue of congressional investigations into things like the Air Force and why arms of the government or are using Trump properties. Then there’s this legal, this constitutional piece. One thing that I was thinking when I was reading it, particularly when it comes to the foreign governments we don’t have to answer this question today, but I’m going to ask you a question. We can think about it down the road, which is that the foreign Emoluments clause basically says that, no person holding any office, shall without the consent of Congress, except any present Emolument office title of any kind whatsoever from essentially a foreign state.

Anne Milgram:             I’ve summarized it, does that mean if Donald Trump is running for reelection in 2020 and the Russian government helps him and tries to provide something of benefit for him, for example, assistance in an election, would that be a violation of the Emoluments clause?

Preet Bharara:              I don’t know.

Anne Milgram:             It’s something to think about. We can put a pin in that for later, but I was thinking on the Emoluments piece. When he ran in 2016 he wasn’t president, the constitutional prohibition against accepting anything of value from a foreign government didn’t apply. Anyway, inquiring minds want to know.

Preet Bharara:              Why don’t we move on to something that’s completely different. The college admission scandal that everyone was talking about a lot.

Anne Milgram:             Yes.

Preet Bharara:              It’s reaching conclusion in some cases. The actress Felicity Huffman was sentenced. Some people were not happy about this, to 14 days in prison for paying $15,000 to inflate her daughter’s test scores. What do you make of that sentence Anne?

Anne Milgram:             There’s been, I think a pretty interesting conversation happening around this, if we could even go back one step to what the prosecutors saw. I think, was she the first person sentenced? I think she’s the first person that I’ve followed who was sentenced under the college admissions scandal case. The prosecutors did a couple of things, the first is that they tried to argue to the judge that this was a crime with a victim and they argued in a way that I think is pretty improbable and raised my eyebrows a little. They argued that the colleges themselves were victims, which I think the other students at the colleges could arguably be victims. The fact that the colleges many of whom were complicit, frankly, in the conduct, it feels weird.

Preet Bharara:              At least there were official in every case.

Anne Milgram:             There were people, yes.

Preet Bharara:              There were officials at the colleges who were complicit, right.

Anne Milgram:             Whether or not some people at the college were victimized, I think the answer is probably yes. There was also a level of people who were engaged in the actual activity. That felt strange to me. The government also basically did this thing where they pulled out these examples, which I’ve found to be deeply troubling examples. She was the first parent to face punishment.

Preet Bharara:              The nature of a crime was, according to her own statement in court, was that she drove her daughter to the school where she was supposed to take the SAT and she claims unbeknownst to her daughter, a proctor was planning to illicitly correct her answers, thereby inflating her score.

Anne Milgram:             The prosecutors argued in favor of a more lengthy jail sentence. They basically pointed to examples of defendants like Kelly Williams Bowler, who’s an African American single mom in Akron, Ohio, who was sentenced to five years in prison. That sentence was later suspended to 10 days in jail, three years of probation in community service and her crime there was using her child’s father’s address to get her child into a better nearby suburban school district. The prosecutors in my view tried to argue that, the lead prosecutor said, “If a poor single mom from Akron who is actually trying to provide a better education for her kids goes to jail, there is no reason that a wealthy, privileged mother with all the legal means available to her should avoid that same fate.” That’s what the lead prosecutor said.

Anne Milgram:             In one way, it is very true that the system of justice that we have often treats people differently when they’re of different races. It is also, in my view, a shameful thing for that prosecutor to have been arguing that where in my view, the underlying sentence for the woman in Akron, Ohio, that was a miscarriage of justice, right? I understand that the U.S. Attorney’s office there made decisions, but do I think it’s fair and just that that woman went to jail for 10 days for trying to get her kid into a better school? Obviously she lied, she was held accountable. I think, the prosecutors use that to try to force the judge’s hand to basically say, “Look, if we sentence, we have to have a fair sentence of justice that’s colorblind.” I think that they were using the race question to their advantage in a way that I found. I really didn’t like it.

Anne Milgram:             I want to just say that, that’s the first point. The second point is, look, I think that the judge made a pretty political decision here. I want to be careful I’m being too critical judges because I think it’s really hard, but I think you and I would both agree and actually we may not agree, but 14 days in jail is really the amount of money that they will spend to put her in jail for 14 days. The amount of work and time for essentially what is a slap on the wrist, a very short jail sentence. It’s a symbolic jail sentence. It’s not a real chance sentence. The judge I think was trying to split it in half by saying to the prosecutors, “No, I don’t think that this is a crime with victims.” The judge was seeing it as more of a victimless crime.

Anne Milgram:             On the other side, the judge was, I think potentially because of the media attention, or the fact that the prosecutors were asking for a lengthy period of time made a decision to do 14 days. I’d be curious. I think for sure the one thing we know is that other people are going to get jail time because Felicity Huffman falls on the… in terms of the conduct, she did it for one of her kids, not both. She paid 15,000 to this test-taking group. She didn’t actually go through the college itself. There’s a lot of reasons in which I think her conduct fraud was a little less.

Preet Bharara:              Her fraud was a little less, a little more limited.

Anne Milgram:             What do you think of a 14 day sentence? Did you ever ask for a 14 day sentence?

Preet Bharara:              No. Because, it’s odd. Look, I was talking to somebody who said something along the lines of what you’re saying, which is, you either give the person nothing because that’s what the guidelines call for.

Anne Milgram:             That’s also the norm, first arrest.

Preet Bharara:              Or you give something pretty serious answer. The way I analyze this is I first look at, well what does the law provide? It’s easy for people to say, well, something is too harsh or something is too light. In the absence of knowing what actually the guide says and guidelines say. Even though they’re discretionary, they’re not mandatory anymore, they provide some guidance and they’re supposed to be the baseline from which a judge either decides to deviate up or down but it’s the baseline. In the federal system with respect certain kinds of crimes like this what’s called the base offense level, is that by the dollar value, which you can argue about the fairness of that. For example, I don’t know that this makes it more or less bad. It was only $15,000 she paid. That puts you in a particular stratum of harm that you say the guidelines provide for.

Preet Bharara:              If she’d paid $1 million because she doesn’t bargain well, the guidelines level would have been much, much higher because it’s a fraud based dollar amount level. Based on what she did pay and based on her acceptance of responsibility, her base offense level, for those of you who are not familiar with the charge is it’s a seven according to what I see in the plea agreement, which is pretty low.

Anne Milgram:             It’s very low. Yes.

Preet Bharara:              It calls for, in that lowest little box on the sentencing guidelines charge zero to six months.

Anne Milgram:             So, the charge has a lot of discretion?

Preet Bharara:              Yeah.

Anne Milgram:             Yes.

Preet Bharara:              Now, lots of people fall into this, fall into zero to six months. Sometimes in very rare cases you get six months. Sometimes a judge departs upward and says, “Well, it doesn’t take into account the severity of the crime and I’m going to give you more than that.” Again, I haven’t taken a survey from my time in my own office, but if it’s here to six, often you get zero. Where you get some form of home confinement.

Anne Milgram:             I actually expected home confinement here with a bracelet. If you’d asked me to bet last week, I can admit that I would’ve been wrong. I would’ve bet maybe a month home confinement.

Preet Bharara:              It’s not wrong to ask the question, because there’s so much a lack of faith in how people are treated unequally in the criminal justice system to wonder, well, okay, this is a rich white woman with a lot of privilege. You hear about different kinds of crimes, people stealing food out of a market, getting more time. Is that fair or not fair? Look, I’ve seen other people argue, I saw John Legend who actually is very active in criminal justice matters say, “I know it’s hard.” I’m paraphrasing. It’s hard for people to get this. He said, “I understand when people point to person X getting a low sentence and they compare it to person Y getting a high sentence for a low level crime.” He says, “The answer is not to give the first person the higher sentence. The answer is to make sure that the second person doesn’t get the unduly harsh sentence.” I tend to agree with it.

Anne Milgram:             I tend to agree with that too. I think that this is a good example where, two wrongs don’t make a right or at least it makes me very uncomfortable to use the higher sentence, which I would argue was unfair to justify a harsh sentence in another case. Now, look, I think that we will see it and here’s another piece for us to think about. Will the main cooperator, the linchpin, the mastermind of all this, will he do jail time? I think it’s an open question. He’s cooperated extensively. The government will show him extreme leniency I suspect, that doesn’t mean he won’t do some time. I always think a little bit about the fact that I’ve now seen a number of cases in which the lead cooperator is the kingpin. You and I have talked about this. It’s rare to do, but sometimes it happens. There’s a reason they did it here. He could put them into all these other colleges and places and they decided that that was worth it. I do think we have to keep all this in mind when we start thinking about what rates of incarceration are all right.

Preet Bharara:              Let me just be clear. I’m not offended at all that Felicity Huffman is going to go to prison.

Anne Milgram:             No, I find it. Here’s what I find strange. 14 days to me is like you’re not really sending someone.

Preet Bharara:              If the judge had said it’s six months.

Anne Milgram:             If the judge had said, “I’m going to it’s in six months and here’s why and here’s my basis for that. Here are the victims. Here’s the decision you made. Here’s why.” I don’t know that I would have thought that, that was a little bit harsh for a first time offender, but I would have accepted it much better than I can accept the 14 days because the 14 days for people who understand know it’s basically a lot of government money and paperwork to put her in a federal low security camp essentially.

Preet Bharara:              If you do 14 days, what’s the good time calculation? Do you hit out on 11?

Anne Milgram:             I don’t know.

Preet Bharara:              I don’t know.

Anne Milgram:             It’s a fiction. Again, I don’t want to underestimate the impact this will have on her life. I think maybe that’s the judge’s goal is basically saying, “I can’t just let you walk away because this is serious.” By the way, I agree with you. This is actually very serious and what the colleges were doing and what the mastermind and the organization was doing is very serious and they’re undercutting the fairness of the higher education system in profound ways. It’s more that, 14 days feels to me like a super political strange calculation of saying, “Well, I’m not going to just let you walk away, but I kind of don’t really want you to serve real time.” It’s like the middle of the road in a way that felt very odd to me. I’m more also concerned about the way the government was trying to leverage these other cases to make their argument.

Preet Bharara:              We shouldn’t leave the show without talking about this New York Times story from the weekend, which wasn’t really a reporting story. It’s a chapter from a book by two New York Times reporters who went back and talked to lots of justice, Brett Kavanaugh’s colleagues at Yale, to find out what things went on. They reported there was this other allegation, I don’t want to describe the facts. Can you describe the facts or allegation to whose turn is it to say penis on the show?

Anne Milgram:             I wouldn’t want to say penis.

Preet Bharara:              I always forget. Why don’t I describe it this way. There’s an allegation that Deborah Ramirez, which came up at the Kavanaugh hearings, was at some party and people were drinking and then Brett Kavanaugh revealed himself in all of his allness to her. That there’s another example of that where he had his pants down and something was thrust into the face of another woman. There are a number of people who claim long before the hearings, long before he became a judge that they witnessed that, separate from that, apparently Ramirez is lawyers say that they provided a list of I think 20 or 25 witnesses who were in a position to perhaps corroborate her story to the FBI. Apparently, none of those people were spoken to and none of those people were interviewed and remember, Justice Kavanaugh was confirmed.

Anne Milgram:             Yes. There are a couple of things, I mean, one is that in this chapter there’re allegations about another woman, who was potentially victimized, in a similar way while at Yale that a man had come out and made a report about that two others, that information had also gone to the FBI. There’s these two different buckets here, which are the Ramirez allegations, which we knew about in a potential new allegation where we don’t have enough information about the potential new allegation. I think it’s been reported that the woman does not recall it.

Preet Bharara:              Although, just to call out the New York Times for a moment, and I haven’t seen all the explanations, but in the original posting, which was labeled News Analysis, even though it was a chapter from a book.

Anne Milgram:             It shouldn’t have been it. It shouldn’t have been labeled News Analysis, I would argue.

Preet Bharara:              I think it was confusing to a lot of people. It did not include the fact that this second victim does not recall the event according to friends of hers. That’s significant, and they’ve corrected the story and updated it with that.

Anne Milgram:             It’s very significant. My bigger takeaway and I would be curious to know what you think of this Prett, but my bigger takeaway is that I found it deeply problematic when the hearings were going on, that there wasn’t an investigation into what had happened with Ramirez, that these people were not talked to, that the Senate was willing. The majority, the Republicans in the Senate were willing to go ahead with a vote on a lifetime appointment to the United States Supreme Court without doing that kind of investigation into really serious allegations.

Anne Milgram:             To me, this raises a lot of questions. When people are raising the question of whether Kavanaugh lied during the hearings? That’s an important question. What’s also important question is why the FBI didn’t do the full investigation and why they didn’t go talk to these witnesses? It’s reported that the FBI said their hands were tied, that it was a very… they got a request from the Senate majority basically saying, we want you to do XYZ interview these, interview Ramirez for example. It did not authorize the FBI to do the interviews of the people who Corroborate Ramirez, but there’s a couple of really critical things.

Anne Milgram:             First of all, the allegations do form the nature of potential sexual assault. I would argue that the FBI could go beyond the four corners of a letter, even in a background investigation, if there’s a basis for criminal charges and the statute of limitations may have run. That may have been the case. The FBI is a law enforcement agency and they’re not required to stay within the four corners if there’s a basis to go out of it. The other thing is that there were credibility determinations made about Ramirez based upon the FBI interview of her without having interviewed the corroborating witnesses and that is deeply problematic.

Anne Milgram:             To me, I think the question we should be asking is why did the FBI not investigate? What investigation should have taken place? Who, if anyone directed the FBI to not conduct a full investigation? I don’t know what your takeaway is, but to me those are real questions.

Preet Bharara:              I agree with all that.

Anne Milgram:             Should we end where we started, which is on Mike Pence on a horse.

Preet Bharara:              Sure.

Anne Milgram:             I’m not sure it’s funny, but we could give it a try. I have a question for you Prett.

Preet Bharara:              What is your question?

Anne Milgram:             Did a race horse bite Mike Pence? If so, is that justifiable under the law? Is that a justification defense?

Preet Bharara:              Was the horse acting on behalf of the state? Maybe it was a taking.

Anne Milgram:             It was reported this past week that Vice President Mike Pence told a story to house Republicans that he was bitten by a champion racing horse named American Farrow. Yet a farm manager who was present when Pence visited the horse, although I’m still not sure why Mike Pence was visiting a horse, really called into question the truth of the Vice President’s assertions.

Preet Bharara:              Pence said, “The fame triple crown winner bit his arms so hard, he almost collapsed.”

Anne Milgram:             “I just gritted my teeth and smiled.” Pence said, “Because you know what, in our line of work you’re going to get bit sometimes but you keep fighting forward.” When people think about dangerous work for the president and vice president. It’s not really horse bites.

Preet Bharara:              This is why he has a rule that he will not have dinner alone with an unwed horse.

Anne Milgram:             What if it’s… is it okay if it’s a man but not a woman?

Preet Bharara:              I think yes.

Anne Milgram:             Yes, I think so too.

Preet Bharara:              According to Michael Pence, the Vice President of the United States of America. Okay, so that is all the time we have for today’s Insider. We’ll be back next Monday, send us your questions too [email protected]

Anne Milgram:             We’ll do our best to answer them. Thanks Prett.

Preet Bharara:              Thanks Anne.

Anne Milgram:             Take care.

Speaker 3:                    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, David Kurlander and Geoff Isenman. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.

Preet Bharara:              Hey there Insiders, this fall Stay Tuned is going back on the road and I’m excited to announce a new stop. On November 5th, we’ll be in Minneapolis in the great state of Minnesota. Joining me is former marathoner, city councilman, civil rights attorney, son and professional ballet dancers and now still in his ’30s Mayor of the city, Jacob Frey. In addition to Minneapolis, I’ll be in Atlanta with Sally Yates in Denver with Shannon Watts and in Detroit with Attorney General Dana Nessel. To get tickets and details of all these upcoming live shows, head to that’s


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