Preet Bharara: From CAFE, welcome to CAFE Insider. I’m Preet Bharara.
Anne Milgram: And I’m Anne Milgram.
Preet Bharara: How are you, Anne? It’s the first day of fall.
Anne Milgram: It is. Happy fall.
Preet Bharara: Happy fall. That actually has double meaning perhaps, for the country. I don’t know. We’re recording here on September 23rd in the morning in New York city. First day of fall. Expect it to be 90 degrees.
Anne Milgram: Yeah, it’s very hot.
Preet Bharara: It’s hot in the studio too.
Anne Milgram: It is. And dark.
Preet Bharara: And dark.
Anne Milgram: To fit the topic of conversation.
Preet Bharara: It was a dark and not stormy morning. We’re going to spend virtually all of our time today talking about this whole business with Ukraine, the president of the United States, the Inspector General for the Intelligence Community, Joe and Hunter Biden, Adam Schiff, all this business that’s going on and unfolding at a rapid pace. Where do we stand at this moment, Anne?
Anne Milgram: Maybe let’s start with the facts and we can run through them.
Preet Bharara: Oh, the facts?
Anne Milgram: I know. Let’s be a little railway.
Preet Bharara: I was going to start with conjecture.
Anne Milgram: We’ll get there.
Preet Bharara: But facts is better. Let’s go with facts.
Anne Milgram: Just give us a couple of minutes. So let’s go back to, you remember July 24th, Robert Mueller testified before the House. The following day, Thursday, July 25th, there’s a call between President Trump and the pretty newly elected Ukrainian President Zelenskyi. And the call is apparently to congratulate, Trump calls Lenskyi to congratulate him on his election. Now, a more extensive readout basically notes that they also spoke about investigation into corruption cases. And I’ll talk about what comes after that, but I think this is the genesis of the conversation we’re having today.
Anne Milgram: On Monday, August 12, a whistleblower from the Intelligence Community files a complaint with the Inspector General of the Intelligence Community, Michael Atkinson, very high level. The Intelligence Committee has a separate whistleblower because so much of the material is classified, so it doesn’t go through the normal practices and procedures, and there’s actually a separate law to address what happens when there’s somebody in the Intelligence Community who wants to make an allegation of wrongdoing against the government or someone in government.
Preet Bharara: And when such a person doesn’t want to just go straight to Congress, doesn’t want to leak to the press, like sometimes happens and we’ll discuss this over and over again before we continue with the overview, there’s a lot of T-crossing an I-dotting by a lot of people here, which I think makes a very different from other kinds of cases.
Anne Milgram: Right. And it’s a very formal process that’s set out in the statute, and what the Inspector General has to consider in the decisions that the Inspector General has to make. That happens on August 12th, there’s a complaint filed. 14 days after receiving the complaint, the Inspector General sends it to the acting director of National Intelligence, the head of DNI, a guy named Joseph McGuire. McGuire, he was… Remember, Dan Coats was the head of DNI, he left recently. The person who has his deputy was pushed out by the president, and now we have Joseph McGuire.
Anne Milgram: So that goes to him. He has by law, seven days in which to transmit that complaint to the Intelligence Committee, that’s seven calendar days, and he doesn’t transmit it.
Preet Bharara: Right. And the standard for having to transmit such a thing is whether or not the allegation made is of urgent concern.
Anne Milgram: And when the Inspector General sent it to the acting head of the DNI, he basically said it’s credible and it’s of urgent concern. At which point, the acting head of the DNI had seven days to transmit it to the Intelligence Committees in Congress. He did not do so. At that point, on Monday, September 9th, so basically a week later, three House committees launched an investigation into reports that for nearly two years, the president and his personal attorney, Rudy Giuliani, were pressuring the Ukrainian government to investigate Joe Biden’s son, Hunter Biden, for politically motivated reasons. And so that’s ongoing.
Anne Milgram: The same day, the first letter comes from the Inspector General, and by the way, that’s separate. We don’t know how they got information to open those investigations, but that starts literally the same day. The Inspector General for the Intelligence Community, Michael Atkinson sends a letter to the Intelligence Committee and says that there’s a whistleblower complaint that he’s deemed credible and to be an urgent concern. The chairman of the House Intelligence Committee, Adam Schiff then sends a letter to McGuire, the acting DNI saying, “Give us the full complaint. You’re required under law.”
Anne Milgram: It’s worth noting that the statute says, “Shall provide,” meaning must.
Preet Bharara: That doesn’t always work.
Anne Milgram: It doesn’t always work. It doesn’t always work.
Preet Bharara: It hasn’t worked with the president’s tax returns either.
Anne Milgram: That’s right. So basically, a few days later, Schiff sends a subpoena to the acting DNI and says, “We want everything by September 17th or you have to testify before the full committee.” A few days go by, on September 17th, a second letter comes from the Inspector General, Atkinson to the House intel committee. And what comes out in that letter is that the acting DNI has made this determination that no disclosure to Congress is necessary.
Anne Milgram: And he basically does it on two grounds. One, he says it’s not an urgent concern, and it doesn’t impact the person who it relates to is not a member of the Intelligence Community. And this doesn’t relate to conduct covered and work covered by the director of National Intelligence. And basically saying the head of DNI is saying it’s not an urgent concern. And we’ll talk about whether that’s legitimate in a second. The second part is he says that there are things that are potentially privileged and confidential that are related to the whistleblower complaint.
Anne Milgram: The Inspector General says he disagrees with that determination, but that he’s going to respect it and he’s trying to figure out a way to get the information to basically let the complainant, the whistleblower provide the information directly to Congress.
Preet Bharara: So now we’re at an impasse on that.
Anne Milgram: Yes.
Donald Trump: Well, this whistleblower or whoever it was, because it sounds like it’s not a whistleblower, you can’t have that happen to a president of the United States, and you can’t have people doing false alarms like this.
Preet Bharara: So we’re going to get into each component of that. We’re going to talk about the impasse between the DNI and the House Intelligence Committee, and the Inspector General. We’re going to talk about congressional reaction. We’re going to talk about the underlying allegations made by Rudy Giuliani and President Trump. The bottom line based on a combination of reporting and also admissions made by the president himself about the phone call he made is this, the president of the United States, after having caused the country for two years to go through a process of coming to grips with whether or not a foreign power interfered with an election and whether his campaign had anything to do with it.
Preet Bharara: Literally on the day after, as you point out, Bob Mueller testifies in Congress and some people thought maybe it landed with kind of a thud. The very next day, the president United States calls up a foreign leader and for the purpose of, because I don’t see any other legitimate purpose, and we’ll talk about it, for the purpose of hurting the leading rival in the 2020 election, calls upon that president to do something with respect to an investigation of his potential opponent, Joe Biden’s son, Hunter and Joe Biden himself. According to the Wall Street Journal, said no fewer than eight times, “You need to do this,” in the backdrop.
Preet Bharara: The question is whether or not, as pressure, he was withholding $250 million in aid to Ukraine, badly needed, that Congress had already approved. And so there are questions of whether or not that’s bribery, that’s extortion. Is there a campaign finance violation? But let me say something else here because you and I are former prosecutors. Our businesses largely during our lives has been to figure out the details of criminal statutes and whether or not the elements of a crime had been made. And you and I have both been on televisions since some of this stuff broke, and I want to make a point that I’ve made then and I want to make it here and we should make it throughout.
Preet Bharara: So here we go again. I want to be very careful that even though our main professions have been criminal prosecution, that the country doesn’t, one more time, go down the road of thinking the only thing that matters here is whether or not a criminal statute was violated. I go on TV, you go on TV, you get asked the question based on our background, “Well, was this bribery? Did this violate a law? Is it extortion?” It may be some of those things. It’ll take a long time I think to unfold and to figure out all the details and the facts.
Preet Bharara: But, if these things are true, and if there was pressure brought to bear, and if the intent was to hurt a political opponent, and if he was doing that by having a conversation, a forceful conversation with a much smaller, weaker, poorer country, then that’s an abuse of authority, it’s an abuse of power. And we shouldn’t have to wait for some prosecutor, a special prosecutor to be able to make the case chapter and verse that a statute was violated, which by the way, now everyone knows as you and I have been saying for a couple of years, you can indict a sitting president anyway.
Preet Bharara: So, we will get to whether or not laws were violated, but I think the terms of the debate on this question, I think in some ways it’s much more serious than what was going on it with the 2016 election because Trump was then a candidate, he’s now the President of the United States.
Anne Milgram: Yeah, I agree.
Preet Bharara: We need to be clear that the question here is whether or not it was an inappropriate and completely ridiculous, over the top abuse of his authority, which based on what I see so far, we’re always very careful to see what the facts are, but based on what we see so far, it absolutely was.
Anne Milgram: Yeah. I think if the facts as reported related to Ukraine are true, and one fact, just to point out is that the allegation is, and Trump seemed yesterday to confirm that there was a conversation about investigating Hunter Biden while they were discussing money in military aid.
Preet Bharara: How did he describe that conversation? Because the president doesn’t just have a conversation.
Anne Milgram: In his remarks, he spoke with reporters Sunday morning and he was asked if he would release the transcript of his call with the Ukrainian President Zelensky. Trump describes the call as ‘perfect’, reiterated that he would talk about releasing the details of the call, and then says you have to be a little bit shy about releasing it.
Donald Trump: But with all of that being said, we had a very great conversation, very straight, very honest conversation. I hope they can put it out.
Anne Milgram: So Trump tweets where he talks about the radical Democrats, the fake news media, little Adam Schiff, and he says, “They think I may have had ‘dicey’ conversation with a certain foreign leader based on a highly partisan whistleblower statement. Strange, there was so many other people hearing or knowing of the perfectly fine and respectful conversation. They would not have also come forward. Do you know the reason why they did not? Because there was nothing said wrong. It was pitch perfect.” It’s worth just noting on the money that there was $250 million in military aid that Congress had approved, should have gone out earlier this summer. It didn’t go out June. It didn’t go out to lie.
Anne Milgram: Finally, the appropriators in Congress start asking questions about it. It goes to the guy who’s in charge of the office of budget Mulvaney, who also happens to be the acting chief of staff to the president. He has put a hold on that money going out. So the president’s acting chief of staff has basically held that money from going out. The money was released after these investigations and these conversations started, not before. So there’s a real… When you and I look at things like this, and I think you’re 100% right to say this isn’t about a criminal investigation, but I’ll tell you, it looks an awful lot like political corruption and cover up and.
Anne Milgram: And I think it’s worth our noting that the criminal question is the last question. I mean, the first question is, is it wrong?
Preet Bharara: Yes. And to forestall the criminal discussion for a moment further, to prove a crime here, a certain kind of crime, people keep talking about the quid pro quo, right? “You do this for me, you open up an investigation, you dig up political dirt on my political opponent and then either I will or will not release this money to you.” It’s hard to prove that those two things are connected. I don’t know what the transcript of the call will show. There’s a lot of hinting that goes on and people sort of get the message even without explicit directions. That happens to mob families, and it happens quite frankly with the president of the United States.
Preet Bharara: Put aside the money for a moment. I would contend that if a president of the United States, separate and apart from any offer of assistance or withholding of assistance, if the president of the United States in an election cycle calls up a foreign leader and asks that foreign leader to do things that will harm his political opponent and is deliberate about that, that itself, particularly since we know that he understands this is a serious thing, is recidivism of the first order in an abuse of power. And if it’s not, if people don’t think it’s a big deal forgetting the $250 million for a moment, what is it that the president is not able to do?
Preet Bharara: If it is okay and it is found to be acceptable as his supporters are making it seem like they want to make that argument, then why can’t the president call up Vladimir recruiting, why can’t the president call up the prime minister of the UK, any leader in the world and say, “Hey, you know what? One of my opponents, Elizabeth Warren once spent some time in that country. Could you go find no evidence of this, that or the other against my political opponent?” You don’t do that. Whether you can prove extortion later or not, you can’t do that. He’s on notice that you’re not allowed to do that. And I think there should be accountability for it.
Anne Milgram: Yeah, it’s a fair point. You don’t even need the quid pro quo piece of it here. And also, let’s be honest, which is that even if there wasn’t $250 million at stake in this particular moment, there’s a huge amount of influence that the United States government has over Ukraine. The imbalance of power is so extraordinary that any suggestion by the president to conduct such an investigation has almost a force of a quid pro quo. And what that will mean going forward. It’s also worth just saying that the advocates for the president and I’m stunned that more people haven’t frankly come out from the Republican party against this.
Anne Milgram: The advocates are really arguing it about the presidency and saying that, “Look, the president has to be allowed to conduct foreign affairs.” And it is true that the United States Constitution gives the president very, very wide latitude in the conduct of foreign affairs. What’s not true is that the president can do things like this for his own personal benefit and for his political campaign. And there’s a line that I would argue the constitution does not allow. And that’s why we’ve come to this point that I think this is the closest frankly, that… People ask you and I about constitutional crises all the time. Is this a constitutional crisis? And generally, I think our answer is, “Well, it’s bad or it’s problematic.”
Anne Milgram: But this strikes me as it is because of what’s happening with Congress and the executive branch thwarting Congress’s efforts to get the whistleblower complaint. And just because of the president’s conduct, this to me is an extraordinary moment in time.
Preet Bharara: Because the constitution and those who put together the constitution didn’t really contemplate that you were going to be having a president who legitimately and in good faith is given a lot of rope and given a lot of flexibility to handle negotiations with foreign countries in secret, did not expect that that person is going to be acting as blatantly as it appears this president has been, to engage in conduct for personal gain, for personal political gain. We see this time and time again both with ethic statutes and with classification of materials and declassification of materials and divestment of assets that a lot of leeway is naturally given to the president because we need a strong, nimble president in that office to protect the public and to conduct foreign affairs and to conduct domestic affairs, in fact.
Preet Bharara: But time and time again, you can put a person in that office, which the American people have done, who abuses the flexibility and does all sorts of things that then lead to the question, “Should there be restrictions on it?” Jack Goldsmith, who was a very smart guy and one of the founders of Lawfare and a professor at Harvard Law School looks at this issue and says, “You know, it’s a really, really tough problem. A president is allowed to have secret conversations with foreign leaders. And if it becomes normal practice to have those conversations exposed, well, then that’s a big problem.”
Preet Bharara: And he reads the DNI statute, and we can get into that in a second, as really restricting the release of this material and says, “Well, what’s the alternative?” And the alternative is, and it’s kind of jarring to hear those and sobering to hear what he says. It’s like, essentially, if there’s a whistleblower who thinks that some serious misconduct has happened on the part of the president himself who is held above and so many different ways, acting like a Manchurian candidate hypothetically, that that whistleblower really has no choice but to break the law, leak the information to the press and suffer the consequences, whatever consequences may arise.
Preet Bharara: That’s really the only outlet.
Anne Milgram: Right. That strikes me as a very problematic argument for many reasons, including the fact that… Look, I agree. I think anyone who follows constitutional law would say the president has enormous powers in the foreign space, but the president-
Preet Bharara: And should.
Anne Milgram: Yes, but the president is also not a king and there are limits on the president’s power, including for example, that he cannot commit treason or betray the United States government. There’s the emoluments clause that says that he can’t even accept a title or anything of value from a foreign government. So, there’s plenty in that document that I think says the president isn’t allowed to unilaterally try to use his office for personal gain and corruption. The second piece about Goldsmith’s comment, I want to talk about, because a lot of people are saying, and then we should go back and go through the whistleblower piece, but a lot of people I’ve heard say, “Well, maybe the whistleblower should come out.”
Anne Milgram: To me, that is a completely unfair responsibility to put on an employee of the US government. If anyone should go forward and be willing to throw caution to the wind on this, it’s the Inspector General, and we can come back to that. But I would argue none of that should be necessary. There’s a process. You know what I was thinking about pre… Let’s just step out of this for a second. Let’s say you hire a contractor for your house, and the contractor you hire to put a roof on your house. You decide that the contractor builds the roof, it’s all done.
Anne Milgram: You decide, “I’m not going to pay that guy.” Because it’s what you do. You basically you like to fight with contractors-
Preet Bharara: Sounds an awful lot like Trump.
Anne Milgram: Yeah, this is going to sound a little familiar in a second. So you basically say to the contractor, “Go ahead, sue me. You want your money, sue me.” That means the contractor has to spend an enormous amount of money and time trying to get money to which there was a lawful contract by which the house owner is obligated to pay. This is a little bit same. There is a lawful statute that says, “You have to provide this information under these conditions.” And essentially, the DNI and the department of justice are saying, “Go ahead, sue us or do whatever you have to do, but we are putting our judgment in place of yours and we’re not going to turn it over.”
Anne Milgram: And it is exactly like Donald Trump. It’s what he’s done in his entire career as a real estate mogul. He’s said repeatedly to contractors and others, “I’m not going to pay you.” And has made them move forward. It’s demonstrably unfair and not the way that the US government works. And I know you would pay your roof contractor.
Preet Bharara: I always pay. I pay my bills. We should also make clear, by the way, that there has been reporting that suggests that what’s in the complaint, which is not yet public and maybe it won’t become public, is more than just about one phone call that it relates to, according to New York Times, a series of actions that go beyond any single discussion with a foreign leader. So we’re putting all our thoughts on this one phone call, because that’s what’s been admitted by the president, that there was a phone call, and there’s a record of the phone call. There might be much more.
Preet Bharara: So this whistleblower essentially had three options. One go to Congress.
Anne Milgram: Yup, which is not authorized under the law.
Preet Bharara: Two, leak to the press, both of which carry problems.
Anne Milgram: Also not authorized.
Preet Bharara: Or doing the most legit thing that you can do under fairly recently enacted whistleblower protection statutes, do what he did, which is make a report to the Inspector General, and the Inspector General then looks at it and decides whether or not it should be disclosed because it’s an urgent concern to Congress. Let’s go back to what you opened with in a little bit more detail, talk about this fight between the IG and the DNI and also with the DNI and the chairman of the Intelligence Committee. So the DNI after consultation with that office that we talked about a lot on the show, the office of legal counsel, and some can question whether or not they had some role to play, why go outside of the Intelligence Community in a way to go to the DOJ?
Preet Bharara: I don’t think that’s actually problematic. And apparently, advice was given that this doesn’t meet the definition of urgent concern. The IG then wrote a letter back to the DOJ saying, “This is why I agree with you and we do need to make this available to Congress.” We don’t have a copy of that letter yet, that has not been made public. But in the letter that the IG sent to Adam Schiff, we have some description of the dispute. And as you pointed out, the IG says that DNI claims they don’t have to give it to Congress because the two standards are not met.
Preet Bharara: No statute requires disclosure of the complaint to the Intelligence Committees because, “The disclosure in this case did not concern allegations of conduct by a member of the Intelligence Community or involve an intelligence activity under the DNI supervision.” Now, on its face, that is not a crazy argument, if you take the statute literally because who does it appear that the allegations of conduct or on the part of? The president. It’s the president. The present doesn’t work in the CIA, he doesn’t work at the NSA, but-
Anne Milgram: That’s a very narrow and cramp reading of the Intelligence Community.
Preet Bharara: Yeah, he’s not a member of the Intelligence Community, but this is another example of how in a way, cramp, narrow reading of the law places the president above the law.
Anne Milgram: Exactly.
Preet Bharara: The president is also not a member of the armed forces, but he is the commander in chief.
Anne Milgram: It’s the same here.
Preet Bharara: And I would presume if there was a parallel issue with the military and you had somebody that was a general breaking the law in some way, you would have a whistleblower procedure. I don’t know what those are.
Anne Milgram: And by the way, the president has said repeatedly, “I have the power to classify and declassify intelligence.” That’s because he’s the chief executive of the United States government.
Preet Bharara: Yes. He’s on top of everything. It seems peculiar that you would have a statute that in some ways only applies to rank and file officers within the Intelligence Community-
Anne Milgram: And not to the boss.
Preet Bharara: … but not to the boss, especially if the boss… It seems to me that the bad action on the part of the boss is even more problematic.
Anne Milgram: And has to be protected more.
Preet Bharara: Unless you believe the I and the state philosophy. And when Nixon said is, “If the president does it, it’s not a crime.” So I find that to be… I understand the literal translation, the literal interpretation, but it doesn’t make a lot of common sense to me. But the second part is interesting because it also has to relate to an intelligence activity they claim under the DNI supervision. Well, we understand the complaint to be, it’s about a conversation between the president and a foreign leader, which he does in the ordinary course of conducting foreign affairs. Is that an intelligence activity?
Anne Milgram: And we should go back, just for a second, to the purpose of the whistleblower statutes, which are to protect people who want to make claims often against superiors and others of wrongdoing and want to make sure that that comes to light. And so it can only be more important when it comes to the president. I mean, the leader of the country. So, going back to this question, you have someone who through their lawful employment, whatever that is, whether it’s that they were listening to the call or they were reading a transcript of the call, or they were sitting in the situation room during meetings where these conversations, whatever it is, we don’t know.
Anne Milgram: But at the end of the day, you have someone who through their legitimate job is sitting and being exposed to this intelligence, that counts, period. End of story to me. And so whether that person is doing things with that information or not, you have somebody who through the administration of their office and their job, we have decided as a government that they should be exposed to this intelligence material. That to me has to satisfy the boundaries.
Preet Bharara: Here’s what the Inspector General, who by the way, I don’t know personally, I don’t know that you know personally, but is well respected and I think undertaking the job in a professional, nonpartisan way.
Anne Milgram: I agree very much with that. And we should talk just for a minute about the fact that he’s a career prosecutor. He worked in the Department of Justice fraud section in the early 2000s.
Preet Bharara: The US attorney’s office in the District of Columbia.
Anne Milgram: In DC, yes. And he’s been in charge of fraud and public corruption. He’s a very serious, and it seems to me, respectable attorney.
Preet Bharara: So he says in this letter to Adam Schiff, “I outline my reasons for disagreeing with DOJ’s analysis of the facts presented in the instant case and the conclusions about these two elements that we’ve been discussing.” And then says that not only does the disclosure fall within DNI’s jurisdiction, but quote, and I think this is interesting, “Relates to one of the most significant and important of the DNI’s responsibilities to the American people.” So separate from this issue of someone being a member of the Intelligence Community and it relating to an intelligence activity, he says relates to one of the most significant and important of the DNI’s responsibilities to the American people. What do you think he means by that?
Anne Milgram: I think it’s like the equivalent… It’s a lawyer speak. We always talk about this. It’s the equivalent of him like screaming out loud.
Preet Bharara: Mayday! Mayday!
Anne Milgram: Exactly. It’s that something really bad has happened or is happening and we have to do something about it. I think it’s written very lawyerly but that line caught me as well as, “Look this is very serious.” And the whole director of National Intelligence, the whole job is to protect the United States of America.
Preet Bharara: Here’s a couple other points. I got asked on TV last week what I make of the legal argument, and we don’t know all the legal arguments because we don’t know all the facts and we haven’t seen the back and forth because that’s not yet public. But as a pragmatic matter, I have an answer, and that is if the president of the United States says, “There’s nothing to see here, there’s no problem here.” Well, I think we’ve gotten past the point where we can take him at his word, then just release the transcript of the call, and call for the complaint to be released. If it has to be redacted in some ways as an initial matter, that’s fine.
Preet Bharara: The way he keeps saying it is… Hey, the president keeps saying, “There’s nothing to see here. There’s nothing to see here, but you also cannot see it. You have to trust me.” Just as a political transparency matter, since we’ve been burned again and again with respect to his lies and fabrications, make it public. And the other point I would make is at the same time, that they don’t know who the whistleblower is. Nobody knows the identity of the whistleblower, the president doesn’t, not Rudy Giuliani doesn’t, as far as I know, and members of Congress don’t.
Preet Bharara: They are still perfectly comfortable attacking him as a partisan. We’re saying like, “Rumor has it that he’s doing this for political reasons. Rumor has it he’s bad in this way or that way,” which again, I find completely unconscionable. And this whistleblower, by the way, who everyone keeps saying should come forward, look, you know the treatment he is going to get if and when his identity becomes public because the Trump people are ruthless liars who don’t care who they destroy so long as they protect themselves.
Anne Milgram: It’s also they are minimizing how difficult it is to be a whistleblower. In almost every situation, whistleblower’s careers get very deeply impacted. And so I think any suggestion that someone would come forward lately… And by the way, one of the points that’s really important here is, it’s not the whistleblower versus President Trump. It’s the whistleblower who files a complaint with the Inspector General who understands and knows what the obligations are under the law, who then decides this is credible and this is an urgent concern.
Anne Milgram: And one thing I think it’s really important just to go back to is that there is nothing in the law that allows the director of National Intelligence to substitute his or her judgment about what is credible and what is an urgent concern for that of the Inspector General’s. The law does provide, if the Inspector General had not found it to be an urgent concern, had not found it to be credible, the law provides for complaint to still go to the Intelligence Committees, for there still to be a path for a whistleblower to be heard by a separate branch of government.
Anne Milgram: I mean, this is all about checks and balances and making sure that, especially in an area like intelligence where there’s so much classified that we don’t allow there to be enormous power without some oversight. So the DNI doesn’t have that authority and it’s really critically, I can’t stress how much I think this is a checks and balance issue as well of basically saying to Congress, “Our judgment gets to… .” The president and the department of justice saying, “Our judgment supplants the Inspector General’s judgment.” They don’t get to do that.
Preet Bharara: So let’s go to a couple of listener questions. I think we’ve answered in large part the following question from listener Ken Kawata, who asks, “How serious is the lack of checks and balances when acting DNI McGuire refuses to provide whistleblower information to Congress because of its privileged nature?” True constitutional crisis or no?” We talked about that a bunch. And then here’s a question that maybe we can address further to what we’ve already said from listener Barbara Lambert, #askpreet. Given the current folderol… By the way, folderol underused word.
Anne Milgram: Great word.
Preet Bharara: Folderol given the current folderol with the whistle blower and this person’s complaint being blocked by the White House/DOJ, what are the implications/consequences, legal or otherwise to the whistleblower should that person ignore the blocking and go to Mr. Schiff directly? And as you’ve been saying, that’s at some risk to the whistleblower.
Anne Milgram: Yeah, it’s a huge risk. And by the way, if anybody’s going to ignore the blocking, again, my view is it’s the Inspector General who has an obligation to make sure… Look, the Inspector General’s writing these letters, he’s doing the right thing. He’s required under law to keep Congress informed. But at the end of the day, either the administration has to make the complaint available or there has to be another way to get access by Congress to that complaint. And your point is well taken Preet. If there’s nothing to hide, you and I have been criminal investigators for a long time. The president says there’s nothing in there, release it. Release the whistleblower.
Anne Milgram: And again, it goes to the Intelligence Committee, it doesn’t make it public-
Preet Bharara: But eventually, it probably would.
Anne Milgram: It probably would, or parts would be.
Preet Bharara: But they want to hide the fact, they want to hide the… It’s make a little harder to say, “Well, if this was in the ordinary course, I’m allowed to talking about corruption.” As everyone knows, Donald Trump did not fire Jim Comey because he mistreated Hillary Clinton. He loved the mistreatment of Hillary Clinton. That was a BS pretextual reason that Rod Rosenstein gave him at the outset. The real reason he fired Jim Comey, and there’s multiple reasons, but one of the main reasons was he didn’t like the Russian investigation.
Preet Bharara: We’re seeing this again here. No sane person on earth thinks that there was any reason other than to hurt Joe Biden politically who may very well be his opponent in 2020, there was no reason to do that other than for political gain. That’s the only reason he was talking to President Zelenskyi, and to the extent there’s more detail in the phone call, it’s a little bit harder to pull the wool over the public’s eyes in that regard.
Anne Milgram: Just to your point for a second, a lot of people are calling for the transcript of the call to be released. I agree 100% with that. But what you said earlier, I’ve read publicly reports as well, which is that the complaint is not limited. The whistleblower complaint is not limited to the phone call, which means that both things need to happen. The transcript needs to be released and the complaint needs to go to Congress.
Preet Bharara: Can we just pause here for a second? Because we like to be careful and we don’t like to speculate. We don’t know who the whistleblower is, we don’t know the bonafides of the whistleblower. We haven’t seen the complaint. I always want to be very careful and we like to be careful and measured about how much stock we’re putting into it. The reason I think we’re taking this so seriously, even though we don’t have all the facts and we’re monitoring it closely, is it’s not just one outlet that’s reporting it, and that’s the standard that we’ve always talked about.
Preet Bharara: It’s not just the New York Times or Buzzfeed or the Washington Post. You have multiple outlets, multiple times over the weekend reporting various aspects of this corroborating each other. You had the president of the United States himself, not corroborating everything-
Anne Milgram: Yeah, but corroborating a significant part.
Preet Bharara: The fact that there was a phone call on July 25th.
Anne Milgram: And that they discussed the corruption, these allegations against Biden.
Preet Bharara: Yeah. The first thing is it’s fake news. The second thing he says is it didn’t happen. The third thing he says is, maybe it happened, it was fine. Four thing he says is-
Anne Milgram: Someone should investigate.
Preet Bharara: It happened, it was fine, someone should-
Anne Milgram: Someone should investigate this.
Preet Bharara: So we just should pause. The other problem that we should address with respect to how this whistleblower, not yet even identified, the way he’s being treated is it’s going to discourage other whistleblowers.
Anne Milgram: Yes, completely.
Preet Bharara: Maybe from coming forward at all. And if they do, and they think the issues at stake and what they’ve observed and witnessed is so serious, they’re not going to go by the book. They’re not going to go cross all the T’s and dot the I’s. They might do this thing that Jack Goldsmith suggests and go straight to the press.
Anne Milgram: Which is a terrible thing for the United States because we don’t want confidential and highly classified information and intelligence being just leaked to the press. And so that’s why this exists and the process… This is an extraordinary thing also, there’s never been an example where this has happened, where the DNI, even in cases where the DNI has said, “I don’t find this credible,” the DNI has always forwarded the complaint.
Preet Bharara: It’s never happened before.
Anne Milgram: It’s never happened before.
Preet Bharara: And that’s the thing to emphasize here. I know we’ve said it, but some things we just need to repeat in the coming weeks, and that is, to the extent these people are attacking the whistleblower, I get that. That’s what whistle blowing is about. That’s what you take on. That’s why it’s so difficult. And that’s why so few people have the bravery and the courage and the spine to do it. But it’s not just the whistleblower, you have an independent Inspector General, which is a fairly high position as far as we can tell.
Anne Milgram: And appointed by the Trump administration.
Preet Bharara: Appointed by the Trump administration. Let’s say appointed by Donald Trump. It’s his handpicked Inspector General for the Intelligence Community, important job. That person has looked at the complaint, has found a basis to believe it presented an urgent concern so much so that it should be disclosed to Congress. So that means found it credible. That means found it serious. That means found it disclosable. And maybe there’s an argument, a legal argument that we’ve been discussing to be made between the Inspector General and the DNI, that is separate from whether or not it is a serious thing to be worried about and for us to be talking about.
Anne Milgram: And by the way, the statute, the law, just to go back to that for a second, let’s say that the Inspector General finds it to be credible and an urgent concern, as he did here, and sends it to the acting DNI who doesn’t. The normal process is that the complaint goes to the committees, and the DNI gets to write essentially the equivalent of a dissent saying… Gets to submit a written document saying, “Here’s why I don’t think this is credible or here’s why I don’t think this is an urgent concern.” So there is an existing process that the Trump administration is thwarting, but that process has worked and this is the first time this has ever happened where they have actually said, “Nobody gets to see it and we’re not going to create a path for the whistleblower.”
Preet Bharara: So Adam Schiff, as head of the intel committee has subpoenaed the complaint. The question arises, “Why hasn’t he subpoenaed the whistle blower, and should he?” It’s a variation of the question that the listener asked. And I guess one answer is, it may put the whistleblower on the spot and would cause the Intelligence Committee chairman to be putting the whistleblower in harms way because it might still be potentially a violation of the law for the whistleblower to come without having the approval of the DNI. What do you think he should do?
Anne Milgram: I think that’s right, and I think that he shouldn’t have to do that. I mean, we may get to a point where that’s necessary, but I would argue very strongly that it shouldn’t come to that. Also, the other thing is that, I want to be careful when saying this, but I think there are a lot of deadlines that the administration just blows through that Schiff has set. Now the next deadline is this Thursday, and Pelosi as well. They’ve set this deadline for the acting DNI to show up and testify. Let me make a bet here, you and I can bet on this.
Preet Bharara: We’re going to bet?
Anne Milgram: We’re going to bet, although you may not disagree that the acting DNI is going to show up and say, “I can’t answer that on advice of counsel,” or he’s not going to hand over the complaint… He’s not going to agree to provide-
Preet Bharara: It’s a terrible bet because I don’t-
Anne Milgram: Yes. You agree.
Preet Bharara: Disagree with you.
Anne Milgram: If that’s the situation, and Schiff I think is trying to be reasonable, but I would argue, at this point, he needs to be very aggressive in investigating this. He can also, by the way, he can subpoena, for example, the people at the Office of Management and Budget that were putting a hold on the money. He can subpoena the person at the State Department who spoke to Rudy Giuliani before and after Giuliani had meetings with the Ukrainians.
Preet Bharara: With Rudy himself.
Anne Milgram: He can subpoena Rudy himself. Exactly.
Preet Bharara: And the other bizarre thing about all this is that these conversations that are happening in Ukraine, because it’s not just the call on July 25th between the president and Zelensky, Rudy Giuliani, the personal lawyer of the president, he’s not employed by the government. Thank God, he’s not being paid by taxpayer money because that would be a bad bargain. He’s having conversations also further to this point. Why is the private lawyer for the president of the United States, who doesn’t serve the interests of the public, why is he having these conversations? So do you think he should be subpoenaed?
Anne Milgram: Yeah. Why is anyone in the State Department having any conversations with him about anything related to Ukraine or the president’s personal political bidding? It’s worth noting too that I think people will say there’s been a lot of conversations about Giuliani recently. Look, he’s potentially a co-conspirator on something here, and we should talk about the crime fraud exception for a minute, which is that, attorney-client communications are privileged. He represents the president of the United States as his private lawyer, but that fails when you’re helping someone commit a crime.
Anne Milgram: And I think we could argue here that there’s a potential basis for our campaign fraud violation, there are potential basis for foreign corrupt practices act, maybe even… There are a number of crimes that I think would legitimately be investigated and frankly, Giuliani would be at the center of that right now.
Preet Bharara: Who’s going to investigate those crimes?
Anne Milgram: Right. This is the problem.
Preet Bharara: Especially when we’ve already established that no prosecutor will disagree with the OLC opinion saying you can’t charge a sitting president.
Anne Milgram: But you could charge Giuliani. If you found, and again-
Preet Bharara: You know Mueller closed up shop.
Anne Milgram: Yes, I know, I know. And there is no special counsel and Bill Barr will not do it, but it is worth noting that we take very seriously attorney-client privilege and respect it. But what you’re seeing Giuliani do here, if it is in fact true, which it appears to be that he’s gone to Ukraine and is doing the president’s bidding on something that is-
Preet Bharara: What’s the attorney-client? I don’t even get what the attorney-client relationship is with respect to Giuliani as an emissary trying to get them to investigate something.
Anne Milgram: To get dirt. Right. I would argue the same. He’s not acting in the same capacity.
Preet Bharara: I don’t even understand what it is. You might be a campaign functionary because it relates to a campaign, it does harm to your political opponent, which actually makes the opposite point.
Anne Milgram: This is a little [crosstalk] thing also.
Preet Bharara: It makes it more nefarious. On the other hand, if it says the president and his allies contend, there was this ordinary conversations with a foreign leader about corruption, corruption is bad. I’m allowed to say-
Anne Milgram: That’s not covered.
Preet Bharara: Then why the hell is Rudy Giuliani doing that? The only conclusion can be, that Rudy was act… I think that Rudy was acting at the behest of the president, and he keeps calling him his client.
Anne Milgram: He’s trying to say, “I’m his lawyer,” but you can’t do through your lawyer what you can do-
Preet Bharara: Political operatives have clients also. So when he says, “This is my client,” it sounds like he’s his political client. Look, this is what he does when he goes on television. He makes political… By the way. Did you see that interview with Chris Cuomo?
Anne Milgram: Yeah.
Preet Bharara: The 20 minutes of crazy?
Anne Milgram: Crazy, crazy. I didn’t want to watch but I couldn’t turn away.
Preet Bharara: As an initial matter, he says, “I didn’t say anything to Ukrainian authorities about investigating Joe Biden.” And he said, “You’re damn right, I did.” Which I was not the first and not the only person to compare it to a few good men. It’s like, “You’re damn right. I ordered the code red.” Maybe there’s a genius to that madness, I don’t really get it. But I think Rudy has a bit to answer for.
Anne Milgram: I agree. Can we talk about strategy also just for a second, because I think what you see both the president and Giuliani and others doing is, they always play offense, and so they’re trying to spin this to say, “Of course, I did because Biden needs to be investigated.” And it’s really nefarious the way they’re doing it. The president has done this repeatedly, which is the best defense is a strong offense and he always argues against someone. But this is really nefarious. It’s a terrible thing.
Preet Bharara: Somebody used the word, I’m forgetting who it was, called it diabolical. Because at the same time, they’re taking grief for engaging, and I think this inappropriate solicitation of an investigation or some would say, not an investigation but fabrication, they don’t care if there’s an investigation or not. They want bad things to be said about Joe Biden. It necessarily, we’ll get to it because I don’t know how to get around it. It necessarily then causes Joe Biden and Hunter Biden and this weirdness about this natural gas company in Ukraine to be in the news, and it causes people to wonder based on what I’ve seen so far, fairly inappropriately, did something untoward happen here and that’s the diabolical nature of it.
Anne Milgram: Yeah. The research is clear when people hear things, even if they don’t necessarily think it’s true or verified, you’re more likely to believe it because you’ve heard it. And so the president is doing this sort of spin machine. And by the way, it’s a really important point when you look at what are the markers of authoritarian regimes. At the top of them is essentially stifling, limiting civil liberties of opponents, attacking others, attacking the media. This is the most [crosstalk 00:40:11].
Preet Bharara: You investigate your opponents.
Anne Milgram: Exactly.
Preet Bharara: This nonsense that you’re allowed to have a conversation about corruption, and the only one that I’m aware of, with respect to something that goes back to his principal adversaries so far in the polls, his principal adversaries son makes it obviously absurd that that was the motivation behind it. And it’s also of a piece with everything that went before. Before we thought it was all directed internally with respect to investigations, “Hey Jim Comey, can you lay off Michael Flynn?” “Hey, can we do something about Joe Arpaio.” “Hey Russians, can you hack into Hillary Clinton’s emails or release them if you have them?”
Preet Bharara: This is the kind of thing, and I don’t mean again to insert myself in this, but not a month goes by when I don’t feel even better than I did the month before that I didn’t answer the call from the president United States. I have no doubt. He called me three times, the last time I didn’t return the call because he was the sitting president, and if I had continued to entertain his phone calls and months had gone by and became chummy with him, if he’s prepared to call the president of Ukraine and say, “Can you take a look at this particular case about an opponent?” I’m 99% certain that at some point, he would’ve called me and done the same sort of thing as we get to 2020. Do you have any doubt?
Anne Milgram: I have no doubt. And I think we should step back and think about this for a minute as Americans because the real danger here is that people say, “Oh, it’s Ukraine. It’s someplace else.” Or people say, “Oh, this stuff happening at the borders are other people’s kids, not ours.” Ultimately, this is all coming back to us. When you look at the way authoritarian regimes work, and the president has a lot of hallmarks of authoritarianism and what he’s doing, when you look at what happens, eventually it comes here.
Anne Milgram: You and I have talked about William Barr not upholding the rule of law, but this is going back on the campaign where he was saying, “I’m going to tell my attorney general to investigate Hillary Clinton. I’m going to control the apparatus of every part of government, including the law enforcement power.” And it is deeply, deeply troubling for all of us.
Preet Bharara: So as we said, this diabolical approach necessitates a discussion of what’s underlying. I don’t know every fact, I haven’t looked at every document. A lot of what I’ve been given to understand about this Ukrainian company, Burisma, comes from reporting and comes from statements from Ukrainian officials. I don’t know how much to credit them, but it seems to me, and I’m skeptical of all things and if someone did something wrong, it should be investigated. And even if there was something wrong, by the way, I’m not saying there was, but I think it’s important to put on the record from my perspective, though there’s no evidence of it.
Preet Bharara: Even if it was the case that Hunter Biden and/or Joe Biden, did something worthy of investigation or were being investigated, it is still not right, and an abuse of power for the president of United States to insert himself and strong arm the president of another country to make hay out of those things. So even if it’s true, and we’ll talk about why it doesn’t seem to be true, even if it’s true, it’s still wrong, and I think as we’ll get to in a minute, potentially impeachable. So now, with respect to Burisma, what does Hunter Biden have to do with Ukraine at all?
Anne Milgram: It’s worth pointing out that there had been no allegations of wrongdoing against essentially either Biden related to this company and what happened in Ukraine. So in April of 2014, Hunter Biden joins the board of this company, the company is investigated by a criminal prosecutor who was the prosecutor general at the time of the Ukraine, Viktor Shokin who investigated both that company and the head of that company, someone name Mykola Zlochevsky. The allegation is that Hunter Biden goes on the board that the prosecutors are investigating. And ultimately, Joe Biden comes in, he’s the vice president of the United States and he says to Ukraine, “Look, you go to get rid of the prosecutor, Viktor Shokin because he’s terrible. He’s not doing any corruption cases. He’s got to go.”
Anne Milgram: And so what the Trump campaign is trying to combine the fact that Hunter Biden is on the board of a company, the company ends up under investigation in the Ukraine by a prosecutor. And then sometime later, the vice president comes in and says, “You got to get rid of this prosecutor or American aid is going to be threatened. We’re going to have to withhold aid because you’re not doing what you need to do to combat political corruption.” So a few points; One is that, by the publicly recorded reported accounts, the investigation had already essentially stalled, the Burisma investigation was not moving forward at the time that the conversation with Biden took place.
Anne Milgram: Two, Biden’s conversation came out of and he was sent on behalf of the United States government that was working with all these leaders in the West to basically say, “The prosecutor’s terrible. Nobody’s being prosecuted.”
Preet Bharara: It was not on his own initiative as far as I can tell and not solely on his own thinking that he made the request. In fact, the reporting suggests that it’s something that filtered up from officials at the US Embassy in Kiev.
Anne Milgram: And the deputy prosecutor had said that the lead prosecutor, Shokin, was terrible and totally corrupt. And that’s the deputy prosecutor to this lead prosecutor in the Ukraine. So you have people within the Ukraine, you have people within Western democracies and governments and Joe Biden on behalf of those governments saying, and actually saying the anti corruption thing, which is like, “You need to put a prosecutor in who’s going to prosecute corruption.” Whatever investigations that means. And so what the campaign, what the Trump campaign seems to be doing is like, just sort of jumping onto the fact that Hunter Biden had some connection to a company that had been under investigation by this prosecutor for a moment in time when Biden comes and says, “You’re out.”
Preet Bharara: Because you need to distinguish also is, if you look at the reporting and the broad intentionally uncareful language used by the president and Giuliani, it would seem that there was an interference with the investigation, specifically of Hunter Biden or Hunter Biden had something to do with what was being investigated. First of all, it’s not clear to me if anything was being investigated, maybe that was the reason it stalled. Hunter Biden became a member of the board of directors of the company, and I don’t know how much he was involved. I don’t know if he got paid an appropriate amount of money.
Preet Bharara: I think it is appropriate, and people can tweet at me if you want, for a sitting vice president son to be on the board of a company when the vice president is part of the administration that has dealings with Ukraine. People need to be careful about that kind of thing.
Anne Milgram: Do you think it is appropriate or is inappropriate?
Preet Bharara: I’m saying it’s not crazy to question why you have those kinds of entanglements. Look, it’s the exact same thing we’re talking about-
Anne Milgram: Yes. It’s bad judgment.
Preet Bharara: With the president’s case now. What’s also crazy to me, I keep wondering if I can be any more shocked about hypocrisy coming out of the mouths of people who support President Trump, and you saw this on the Sunday shows this past weekend.
Steven Mnuchin: Again, I’m not going to speculate on that. What I do find is inappropriate is the fact that Vice President Biden at the time, son, did very significant business dealings in Ukraine. I for one find that to be concerning and to me, that’s the issue perhaps that should be further investigated.
Preet Bharara: So Mnuchin is on television with Jake Tapper and parrots the talking points, the accusatory talking points of the White House on this matter and says something like, “I find it really disturbing that a sitting vice president has a son who’s doing business with Ukraine.” And Jake Tapper is like, “Wait a minute. You don’t have a problem with the fact that the president’s son does business all over the world. You don’t have a problem with the president’s daughter, Ivanka Trump. He can get in copyrights in China when he’s negotiating trade policy and other economic policy with China.” And then Mnuchin says, “Well, I don’t want to get into the details of that.”
Anne Milgram: Yeah. Or Kushner or basically not getting a security clearance because he had so much business worldwide that he was potentially compromised.
Preet Bharara: But there’s a good reason why you just if you can, steer as clear from any kind of appearance of that at all. But if what’s good for the goose is good for the gander, if you’re complaining about it with Inspector Joe Biden in this one instance with Hunter Biden who is merely on the board in the past. And at this very moment, you’ve got children who are engaging in all sorts of business on your behalf, and by the way, are running your organization while you as president are advocating that not only the G7, but everyone else all over the world should stay at your properties.
Preet Bharara: And by the way, the president also says people give themselves away when they make accusations about other people because often people are assuming that other folks are like them. And so when President Trump says, “Well, of course Joe Biden and his son talked about their business because why wouldn’t you? How could you not? That means I do.”
Anne Milgram: That means I talk with my kids all the time.
Preet Bharara: How can you not? And it’s a self indictment. If it’s true what he says that a president and his son couldn’t possibly stay away from the topic of their business. And now the president of United States, President Trump has children who are running vast enterprises all over the world that are questionable with respect to what kind of influence is being pedaled or bought, he’s basically saying that, “Of course I talk to my children all the time about the business that I’m supposed to be not paying any attention to because I’m running the country.”
Anne Milgram: Well, I’ll give you one other example, which is the meeting in Trump Tower with the Russian lawyer where Trump said, “Of course I didn’t talk to my kids. I didn’t know anything about the meeting.”
Preet Bharara: I just dictated the statement later.
Anne Milgram: Exactly. Now, I want you to know Preet, I’ve heard your arguments and I’m prepared to rule that the worst presidential children ever, the award goes to Donald Trump. And it really is, it’s stunning that they’re leveling these accusations against Biden given where they are. I do want to go back though and just say that, I think it’s really important to note that there’s been no allegations of wrongdoing against Hunter Biden in connection with the company or in connection with that investigation and no allegations of wrongdoing by the vice president. And so I think it’s important we talked about it now, but I want to be really careful because we see in the media all the time, they create this sort of false equivalency of their accusations against everyone or there’s wrongdoing all around and it becomes noise in the public’s mind.
Anne Milgram: And what the president is trying to do here is say that there’s something there with the Biden stuff. And I’ve read everything now in preparation for this, I think you and I are quick to call out wrongdoing, I don’t see it here, I see political spin. And so I think it’s just important to note that when people are even watching the mainstream media, the more conversation about this, and again, we need to have the conversation, it needs to be a part of the conversation. But what the president wants to do is give something that looks on its face to be illegitimate, a lot of air.
Preet Bharara: Lots of people have been writing about this. There’s an individual named, Oliver Bullough he wrote a piece in the last couple of days in the Washington Post saying, “Look, the timeline doesn’t add up. And I suppose lots of people will continue to look at this and will continue to follow it.” And he says, for what it’s worth, and I’m not sure I disagree with him and you can direct your comments and mail to me and Milgram on this point, it’s like, “Hunter Biden should not have taken the job. Joe Biden should probably not have boasted about bullying the president of another country, but those are judgment matters for them personally not proof of conspiracy and certainly, not an affair with destabilizing the fragile democracy of a new US ally.”
Preet Bharara: Look, there’s a lot of smoke here, it doesn’t seem to be fire. And as you say, one needs to be careful about separating these things out, and one needs to be careful about not doing exactly what the president wanted, which is to cast dispersions and build conspiracy theories about one of his major political opponents in the 2020 election.
Anne Milgram: And going back to where you started, I agree with you that even if there was wrong doing, I see none. But that’s not the point and it’s being used to distract focus from the fact that the president tried to strong arm essentially a foreign leader into doing his political betting-
Preet Bharara: It’s recidivism. It’s recidivism.
Anne Milgram: Yeah. And investigating an opponent.
Preet Bharara: Again, folks, when you’re arguing about this with your friends, and we spent a long time talking about it, we haven’t even gotten to a lot of issues and it can be very complicated and it can seem very difficult to follow because there’s a lot of names and Ukrainian names that are difficult for some people to remember and keep track. But as you and I would say to the folks we worked with when they were going into a trial, maybe on a complicated financial instrument, at the end of the day, it is a simple thing. It’s about lying, cheating or stealing in a court of law, here, don’t be distracted from what it is that’s making people very upset and has us all worked up, the president of United States seeking assistance from a foreign power to discredit or fund political dirt on a domestic political adversary.
Preet Bharara: You don’t do that because if you allow that to happen, then that means you can do lots and lots and lots of other things, not just the political opponents who are running in an election against him, but also any ordinary person who dares to cross him., he can put into play the official apparatus of this country or some other country to engage in character assassination or worse for personal gain, not for the benefit of the country. And that is an abuse of power. Simple.
Anne Milgram: Yeah. And the recidivism point is well taken. And I think it’s worth just noting that, in 2016, having these conversations in 2017, 2018, there was something that was different about this. And part of it is that we now know what the president’s intent is and we’ve seen it before and he does not have the benefit of the doubt and saying, “Oh, I didn’t mean it. It was just a congratulatory-”
Preet Bharara: Now he knows. Now he knows, he doesn’t care. Look, just to emphasize again, we’re doing a lot of re-emphasis here. He made the call the day after Bob Miller testified. I find that extraordinary. Would he have made the call two days before Bob Miller testified? Maybe, maybe not. He’s kind of brazen. I don’t know. Now the question is, what happens on the part of Congress? There’s been some movement in the way people talk about this because I think this is something different from what we were doing and talking about 2016. Nancy Pelosi, a lot of people were not happy with her because she seems to be trying to squelch talk of impeachment.
Preet Bharara: I think the most aggressive things she has said is that, if there continues to be stonewalling of the complaint and of information about this issue, then we may need to reach a whole new phase of investigation. I don’t know what that means.
Anne Milgram: Yeah. I’m laughing only because it’s like she’s literally giving them 80 warnings. It’s like when you think about parenting, what happens when you give 80 warnings-
Preet Bharara: But she has a hard job.
Anne Milgram: She has a very hard job, but let’s be real about the, her letter even was like, “Look, you better do a good job on Thursday.” And it’s almost, in my mind it was like, “or else what? You’re going to give them another deadline to do a good job by?” And so I understand she’s in a hard position, I also think that you can’t play… Just as we are critical of the president and the administration for playing politics on things, I think this is not, in my view, this is not a political matter. This is an incredibly serious question and they have to do everything within their power to get the complaint and to get the transcript today, not tomorrow.
Preet Bharara: And if the facts bear out, in some ways, this is a greater abuse of power than anything before because he’s not a candidate for president as a private citizen, he’s the sitting president of the United States of America. And as other people have pointed out, if he’s doing this, and this only came to light, by the way, because of the IG in the Intelligence Community, wrote a letter to Adam Schiff and Adam Schiff made it public, thankfully. Otherwise, we would know nothing about this. How many other things is he doing with other countries and also within this country that we’re going to keep giving a buy to.
Preet Bharara: And look, obviously for political reasons, there are senior Democrats who maybe have better political antennae than I do who don’t want to pursue impeachment. And we’re getting closer and closer to the election. But as Adam Schiff seem to suggest, we might be forced into doing that, which some people politically don’t want to do because you have a higher duty than just caring about politics. He said, “With this current event,” I believe he said, Adam Schiff, “We may have crossed the Rubicon.” Even his language has strengthened.
Anne Milgram: It’s important to note too, that impeachment is not a political, it is a political remedy in the sense that it’s done by a politically elected institution, the United States Congress, but it’s in the United States Constitution, it is a part of how we hold the executive accountable. The other piece, and I think one of my frustrations about this is that, it’s a cover up right now. We’re not getting information. And so what needs to happen is Congress needs to assert their authority because at some point you erode so many checks and balances. If Congress accepts this, it’s like they’re essentially, I think there was a Congressman in New Jersey, one of the freshmen, Tom Malinowski, who said it in a way that I found really important, which is, “There are lines being crossed right now that I fear will be erased if the House does not take strong action to assert them and defend them.”
Anne Milgram: And it is really true that if they allow this type of thwarting of congressional authority, it sets a devastating precedence, and it really makes the executive more powerful. And so actually, I don’t think she has a choice frankly, and I don’t think Schiff has a choice. If they get this information, if the administration gives them this evidence and this information and they make a determination that impeachment isn’t warranted, okay. But to not have the information and to be so politically afraid to go forward or so cautious, I think the time is now and everyday matters and it’s like, to me I would say today, “And you have a deadline of today.”
Anne Milgram: And by the way, one other point just to ask you about, which is a lot of folks have talked about them suing and litigating and trying to enforce subpoenas-
Preet Bharara: It’s going to take forever.
Anne Milgram: Forever. Yeah. They could do it but it’s not going to be the answer in this situation, unfortunately.
Preet Bharara: Ben Wittes, our friend that we often invoke in the Lawfare folks, had a conversation with him last week and he has written the following and said, “Well, Congress can take the position because it’s not a regular court of law, can take the position that given the history, given the circumstances,” and I’m paraphrasing here and probably won’t do his argument justice, but essentially, “If there continues to be stonewalling on giving up the complaint or making the whistleblower available or any other kinds of a blockage of information gathering, the Congress can take the position.”
Preet Bharara: “We’re going to make an adverse inference and we’re going to assume the worst with respect to this, that or the other fact or document because you’re not letting us engage in our oversight function, in our investigative function, which is legitimate, and allowed and permissible and guaranteed under the constitution. So give us the stuff or not and we’ll litigated about it or not, but we’re going to proceed under the assumption that if you’re not producing something, at the same time that the president is saying there’s nothing to see here, you’re not letting us see it, then we’re going to make an adverse inference. And then let the chips fall where they may.”
Preet Bharara: Now, I’m disappointed as I’m sure you are, that not enough members of the president’s own party say, “Look, You know what?” And I’m not expecting them to go on television and excoriate the president and say he’s an SOB and he needs to resign immediately, I get that, but-
Anne Milgram: They could do it behind closed doors. They don’t need to go public.
Preet Bharara: But also, but the wholesale, just support of it. So the only person, personally, I don’t love, but it is what it is and he goes back and forth is, you remember Mitt Romney?
Anne Milgram: Yeah.
Preet Bharara: He’s in the Senate now, he tries to become president.
Anne Milgram: And he spoke out.
Preet Bharara: He tweeted, “If the president asked or pressured Ukraine’s president to investigate his political rival either directly or through his personal attorney, it would be troubling in the extreme, critical for the facts to come out.” And look, I think that’s good. I welcome that.
Anne Milgram: It’s really important.
Preet Bharara: I then tweeted for what it’s worth, “For starters, can you be more specific, Mitt Romney. Are you demanding the transcripts to be released? Are you demanding the whistleblower complaint be given to Congress? Please do so and encourage your colleagues to do the same.” Look, I welcome the fact that he says it would be troubling in the extreme, a lot of people think it should be much stronger. I think any Republican who’s elected as opposed to commentators who have more freedom, I think, who calls the president out, and it’s great, but the specific things they should be saying, I think should be, “We want the whistleblower to be able to testify and we want the complaint to be able to go to Congress.”
Anne Milgram: Yeah. And my view is, everyone needs to be pushing Republican legislators on this as well because this one is, I understand it’s being seen in some circles as partisan, but this is really about the United States government and the safety and security of the United States longterm and what damage the president can be doing. And so to me, the reason Trump is so empowered and the reason he has not been held accountable is not through processes through which people have tried to hold them accountable, it’s the fact that the Republicans have been so hesitant to basically stand up and say what’s right. And it’s a little surprising, in fact, that Mitt Romney stands alone on this so far.
Preet Bharara: You and I could talk for hours about this. I think they’re going to be a lot of developments that continue on the Ukraine matter. You and I will be on it. We’ll talk about all the most recent developments next week on Ukraine.
Anne Milgram: I want to make one suggestion. They’re going to have this hearing on Thursday, where the acting head of the DNI is going to come before Adam Schiff and the Intelligence Committee, I want to suggest that Barry Berke, the guy who did the questioning for the House of Corey Lewandowski, he should be the questioner.
Preet Bharara: I think as a technical matter, I may be wrong about this, I think Barry who I know and I think is a very fine lawyer, and was the lawyer for some people that we investigated in charged when I was a US Attorney, he’s formidable guy. I think he is technically on contract with the Judiciary Committee, not the Intel Committee.
Anne Milgram: My only point is that I think-
Preet Bharara: There are other fine lawyers too.
Anne Milgram: We’re playing varsity ball here.
Preet Bharara: I nominate you.
Anne Milgram: Except let’s go down… But I really think it’s important point to note that Lewandowski, we watched his testimony and I have two takeaways from it. One is really the importance of what Barry Berke did is what a good lawyer would do in that circumstance, which was to not let Lewandowski spin it, get around it. And really he did very simple, straightforward questions, yes or no.
Preet Bharara: Pointed straight questions.
Anne Milgram: You said this, was that true? You later said this, was that true? And he got Lewandowski to basically say, “Yeah, I lied to the media.”
Preet Bharara: Let’s just review it. In the particular, people have seen clips of this.
Corey L.: I have no obligation to be honest to the media just because they’re just as dishonest as anybody else.”
Barry Berke: So you’re admitting, sir, you are not being truthful in that clip. Correct?
Corey L.: My interview with Ari Melber?
Barry Berke: Yes.
Corey L.: It can be interpret any way you’d like.
Preet Bharara: Corey Lewandowski had given press interviews in which he said he couldn’t recall any conversation he had with Mr. Trump about sessions. And that’s laid out in great detail in the Mueller report that Trump told Lewandowski to get sessions to unrecuse himself and then restrict the investigation going forward. He was like, “Yeah, I didn’t believe any of that.” Barry Berke does ask, “That wasn’t true. Was it sir?” Lewandowski squirms in his seat, if you watched it, says, “You can interpret it any way you like.” That’s like another BS answer. And then Berke was supposed to do this, members of Congress don’t, he sticks with the question.
Anne Milgram: Yeah. He kept coming back.
Preet Bharara: And then Lewandowski finally has to say, which I though was astounding because sometimes they say this stuff out loud, these people, “I have no obligation to have a candid conversation with the media whatsoever just like they have no obligation to cover me honestly, and they do it inaccurately all the time.” Barry says, “You are admitting that on national television you were lying there?” And he basically says, “They had been inaccurate on many occasions,” which was not the question. He says, “And perhaps I was inaccurate that time.”
Anne Milgram: It’s profoundly disturbing. It’s also, it comes a little bit back to the Russia thing, and I remember the Stay Tuned episode you did. I can’t remember if it was Garry Kasparov or Bill Browder, but it might’ve been Kasparov where he was talking about the way Putin runs the country in Russia.
Preet Bharara: Garry.
Anne Milgram: There’s no real truth, that everything, the idea is like everyone lies, of course, we lie too.
Preet Bharara: They’re not so much trying to win the argument as convince people there’s no such thing as truth and you can’t trust anything. That’s a successful misinformation campaign. And this point, just back to Lewandowski for a second, and Trump also, this ridiculous statement, it makes me angry that I have no obligation to be honest with the media. It’s not about the media, it’s you’re being dishonest with the public because they’re not… you’re not interviewing the media and they just sit around in some Burger King somewhere watching the Corey Lewandowski statement that was made.
Preet Bharara: This is what gets transmitted to millions and millions of people. So you’re lying to the public. I like to hear them say, “I don’t believe that I have any obligation to be honest or candid with the public.” Because that’s what they’re saying. And it’s nonsense.
Anne Milgram: Right. I agree. I would also say just as we think about how these folks get questioned and how we get information out, it strikes me that there’s a way in which I think a lot of the American public, and even myself at times, we’re guilty of thinking that we’re watching a chess match, where all information is known, people are making moves and the whole board is available, anybody can see it. There is an absolute truth when you play chess, we’re not playing chess. This is a game of poker, where you don’t know what’s happening behind the scenes, where people are lying.
Preet Bharara: You’ve got [crosstalk] process too.
Anne Milgram: Yeah, he’s right. And I think Congress needs to act, and all of us need to act and understand that this is a game of poker. I don’t like to think of life as a game of poker necessarily, but the truth is there’s a lot of information we don’t have. There’s a lot of information not being given to us. There are a lot of lies and we need to operate in an environment that’s really unsettling because all of us want to live in the world of chess where we see and know everything and where people aren’t motivated by trying to have disinformation campaigns and really destabilize things like democracy.
Preet Bharara: All right. We’ve gone long, but there was a lot to cover and I think people should really be following this closely. But again, don’t get caught up too much in the distractions and the diversions. At the heart of this is a pretty simple story, president United States looks like he’s abusing his power to get dirt on political opponent as a recidivist because we’ve been down this before.
Anne Milgram: And we need to know what happened and will continue to make sense of it as it unfolds.
Preet Bharara: This time, sense can be made of it. Assuming a fact, not an evidence. All right, so we’ll be back next Monday. Send us your questions to [email protected]
Anne Milgram: Thanks, Preet. See you soon.
Preet Bharara: This is the CAFE Insider Podcast. Your hosts are Preet Bharara and Anne Milgram. The executive producer’s Tamara Sepper, the senior producer is Aaron Dalton. And the CAFE team is Carla Pirani, 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
Speaker 7: … Biden and his son during your phone call?
Donald Trump: Well, you’re going to see because what we are doing is we want honesty, and if we deal with a country, we want honesty. And I think with the new president, you’re going to see much more honesty in the Ukraine. And that’s what we’re looking for. We’re supporting a country, we want to make sure that country is honest. It’s very important to talk about corruption. If you don’t talk about corruption, why would you give money to a country that you think is corrupt? One of the reasons the new president got elected is he was going to stop corruption. So it’s very important that on occasion you speak to somebody about corruption. Very important.