• Transcript
  • Show Notes

In this episode of CAFE Insider, Preet and Anne break down President Trump’s controversial hour-long phone call with Georgia Secretary of State Brad Raffensperger, Republican Senators’ last-ditch effort to subvert the election results in Congress, and Vice President Pence’s role in counting the electoral ballots. 

We hope you’re finding CAFE Insider informative. Email us at [email protected] with your suggestions and questions for Preet and Anne. 

This podcast is produced by CAFE Studios. 

Tamara Sepper – Executive Producer; Adam Waller – Senior Editorial Producer; Matthew Billy – Audio Producer; Jake Kaplan – Editorial Producer

REFERENCES & SUPPLEMENTAL MATERIALS:

ELECTORAL BALLOT COUNT

3 U.S. Code §15. Counting electoral votes in Congress

“Romney Statement On Certification of Presidential Election Results,” statement, 1/3/21

“Joint Statement from Senators Cruz, Johnson, Lankford, Daines, Kennedy, Blackburn, Braun, Senators-Elect Lummis, Marshall, Hagerty, Tuberville,” statement, 1/2/21

“Sen. Hawley Will Object During Electoral College Certification Process On Jan 6,” statement, 12/30/20

“Trump’s push to overturn election result tears through GOP,” CNN, 1/3/21

“Liz Cheney: Objecting to Electoral College Votes Sets ‘Exceptionally Dangerous Precedent,’” National Review, 1/3/21

“At least 140 House Republicans to vote against counting electoral votes, two GOP lawmakers say,” CNN, 12/31/20

“McConnell warns Senate Republicans against challenging election results,” Politico, 12/15/20

Sen. Collins tweet, 1/3/21

Sen. Toomey tweets, 1/2/21

President Trump tweet, 2/3/16

VICE PRESIDENT PENCE

12th Amendment to the U.S. Constitution

“Pence’s very limited options to challenge Biden’s win,” WaPo, 1/5/21

“Pence’s Choice: Side With the Constitution or His Boss,” NYT, 1/4/21

BRAD RAFFENSPERGER

52 U.S. Code §20511. Voting and Elections. Criminal penalties

GA Code §21-2-604 (2016). Criminal solicitation to commit election fraud

GA Code §16-11-66 (2006). Crimes and Offenses

“Firm Response to Reports of Partner Cleta Mitchell’s Involvement in Post-Election Challenges,” Foley & Lardner LLP, 1/4/21

“Trump-Appointed U.S. Attorney In Georgia Resigns,” NPR, 1/5/21

“Trump Lawyer on Call Is a Conservative Firebrand Aiding His Push to Overturn Election,” NYT, 1/4/21

“Election results under attack: Here are the facts,” WaPo, 1/4/21

“Here’s the full transcript and audio of the call between Trump and Raffensperger,” WaPo, 1/3/21

“‘I just want to find 11,780 votes’: In extraordinary hour-long call, Trump pressures Georgia secretary of state to recalculate the vote in his favor,” WaPo, 1/3/21

“Even as Trump vows to keep fighting, his aides are quietly starting to move on,” WaPo, 12/19/20

“Disputing Trump, Barr says no widespread election fraud,” AP, 12/1/20

“Ga. secretary of state says fellow Republicans are pressuring him to find ways to exclude ballots,” WaPo, 11/16/20

Dianne Gallagher tweet, 1/4/21

President Trump tweet, 1/3/21

VIDEO: Georgia Voting System Implementation Manager Gabriel Sterling press conference, 1/4/21

Where Can Trump Find 11,780 Votes?

Desperation is sinking in for President Trump as he begs Republican officials to subvert the will of the voters.

In his latest attempt to subvert the presidential election results, last Saturday, President Trump called Georgia Secretary of State Brad Raffensperger to pressure him to “find” the 11,780 votes necessary to flip the election in his favor. Preet and Anne discuss whether Trump’s threats constitute a crime, an impeachable offense, or both.

Meanwhile, a number of Republican Senators, led by Missouri’s Josh Hawley, plan to participate in a last-ditch effort to challenge the election results when Congress meets tomorrow to formally certify the Electoral College vote. Preet and Anne explain why this attempt is doomed to fail but sets a dangerous precedent. 

And, there are questions surrounding whether Vice President Pence will join the group of Republican Senators in attempting to overturn the election results. Preet and Anne break down the Vice President’s administrative role in the electoral ballot count process.

Preet Bharara:

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

Anne Milgram:

And I’m Anne Milgram.

Preet Bharara:

Happy new year and-

Anne Milgram:

Happy 2021.

Preet Bharara:

Have you written any checks on what you erroneously put the year 2020?

Anne Milgram:

No, not yet. Have you? I will [crosstalk 00:00:18].

Preet Bharara:

I really write checks anymore.

Anne Milgram:

Yeah. Same.

Preet Bharara:

Do you write checks?

Anne Milgram:

No. I do more online [crosstalk 00:00:23].

Preet Bharara:

Yes.

Anne Milgram:

But I haven’t written it yet. Yeah, it’s a good point.

Preet Bharara:

We were talking before we started taping, and maybe other people will sympathize with this. We’re not. That during the break, I reverted to college sleeping [inaudible] going to bed-

Anne Milgram:

Staying up late?

Preet Bharara:

At 3:00 in the morning and waking up, I don’t even want to say what time I was waking up. So it’s been a bit of a jarring thing. You come back to some [crosstalk 00:00:49].

Anne Milgram:

Totally. We’ve had a rocky two days back at it. Our son went back to school yesterday and said, “I don’t want to go to school”, which is kind of what you’re supposed to say after winter break, but it’s a tough adjustment. We all have been tired.

Preet Bharara:

Is yours a late night household otherwise?

Anne Milgram:

My husband stays up pretty late. And I think my son is going to be a night hour. I actually, I get pretty tired to be honest. I used to be able to stay up a lot later in my youth, but now by like 11 o’clock at night, I’m ready to [crosstalk 00:01:26].

Preet Bharara:

You’re still in your youth and-

Anne Milgram:

Well, thank you [crosstalk 00:01:29].

Preet Bharara:

I saw my queue there. I saw my queue, and I took it.

Anne Milgram:

How about you guys? Are you late night?

Preet Bharara:

It’s a very late night household, as because my 19 year old daughter who was doing her sophomore year remotely from college do complain [inaudible] “When I come home, my parents are still awake. It’s very weird.” She didn’t say this, but I think she also meant to say, “And really annoying. I want to kind of come home and not have to deal with both mom and dad still awake at whatever time it is.”

Anne Milgram:

Yeah, completely.

Preet Bharara:

So things keep getting a little weirder. Does one more to use for it. In other word is, things keep happening that make folks angry and make folks anxious. So before the break, you and I talked about how everything was going to go fine when the electoral college met, when the electors met. And it did, but there keeps being this concern about what’s going to happen on January 6th, which I believe is, if I’m doing the math correctly, is tomorrow.

Anne Milgram:

That’s right.

Preet Bharara:

Is everything going to be okay?

Anne Milgram:

Yes. Everything is going to be okay. I should say that we got a question from Carol by Twitter, where Carol said, “Please tell us one more time, how this cannot possibly happen. These conspiracy theories, ideas and lies are actually making me very nervous. You and Anne are the voices of reason I need once again.” So Carol, and all our listeners, I feel completely confident that tomorrow, and it may be late tomorrow night, it could go on for a while, but Joe Biden will be the president of the United States.

Anne Milgram:

And we’ll talk about the logistics of why we know that that will be the case, but basically you would need both the house and Senate, a majority of people in those bodies to overturn the will of the electors. And it is very clear that that’s not going to happen. And so, I feel a lot of confidence. I think we should all be. We should be nervous and concerned about what this means overall, but as of either tomorrow night, or it might be early Thursday morning, I believe that we will have Joe Biden as officially the next president of the United States to be sworn in on January 20th. And how do you feel, Preet? Do you agree with my optimism?

Preet Bharara:

Yeah. I think there’s going to be a lot of damage along the way, and where it has been damaged along the way, I guess we should sort of explain a little bit of this. The 12th amendment to the U.S constitution makes it very clear that the president of the Senate, and that’s vice-president, Vice President Pence, “shall in the presence of the Senate and the house of representatives, open all the certificates and the votes shall then be counted.” And it’s very clearly in ministerial role, he’s basically opening the mail. He’s like the mail guy.

Anne Milgram:

He doesn’t even count. Doesn’t someone give him usually the vice-president would be told the count by the person who’s actually doing the counting, the vice-president just reads it out loud. It’s very administrative almost. So one of the things that’s worth just focusing on for a minute is that we just talked about how it’s supposed to happen. That there’s this joint session of Congress where the electors ballots are formerly open, they’re counted.

Anne Milgram:

And the vice-president, who’s the president of the United States Senate would declare the winner. And that’s the official election of the president. And that’s how it goes. Now, what is also the case is that there is a way for members of Congress to challenge the ballots and essentially challenge the electors and the votes in those States. It is extremely rare that this is used or done. And it’s really there. Again, there’s a lot of sort of, I would almost call it belts and suspenders in the way that our government operates.

Anne Milgram:

And so, there’s this idea that you have a backstop in case there was a problem, and you want the ability for someone to raise a challenge. And so, there’s a statute called The Electoral Count Act of 1887 codified in three United States code Section 15 that says, objections can be made. And that those objections have to be signed by at least one senator and one member of the House of Representatives. And that those are then submitted to the Senate and the House for them to make a decision on it.

Anne Milgram:

And if a majority of both the House and the Senate vote to reject the vote or votes, then they will not grant those electors to whomever they were supposed to be granted to. Now again, this was written, and the Washington Post did a good piece on this explaining that it was done years ago, so that Congress would have a process if there’s ever a dispute in a state about which candidate has won. What’s weird here, Preet, is that, is there a dispute?

Preet Bharara:

Not really, there’s a manufacture dispute in some places. And you had folks that had nothing to do with the process claim that they had an alternate vote in one or more states. But no, there’s no dispute here. There’s no historical precedent for this, although people try to point to one. And for the reasons you describe, although it seems worrisome because the president talks a good game, I guess, depending on your perspective, and you have highly educated legal minds on the Republican side, including Josh Hawley and Ted Cruz, both of them clerked on the Supreme Court of the United States.

Preet Bharara:

These are very smart, educated, and trained lawyers who know what the precedents are. I think reasonable people sometimes can’t really fathom how other folks can act in such bad faith, because they’re engaging in this performative act of trying to appease, I don’t think Trump as much as Trump’s supporters at this time. I mean, they know better. They know it doesn’t work the way they say it’s going to work, but they’re doing it anyway.

Anne Milgram:

Completely. And they’re giving this opportunity by doing this by Josh Hawley was the first to come out, the Republican senator from Missouri, and then Ted Cruz from Texas. They’re sort of jointly leading the Senate effort, even though, and it’s worth noting this, even though Mitch McConnell had encouraged the Republican Senate members not to do this, because this whole thing doesn’t happen unless there’s a senator and a member of Congress.

Anne Milgram:

There were already House Republicans who were saying that they were going to lead this charge, but they needed a senator. So Mitch McConnell had said, “Don’t do it. It’s not good for the Republicans overall.” But Hawley came out and said he’s doing it. What is really frustrating about this, I think for folks like you and I, and the reason I would also call it bad faith is that we’re going to end up with the same result.

Anne Milgram:

The electors have already voted, courts have already addressed the election fraud allegations and they’ve ruled, but this is going to be really ugly. And they’re going to, as you mentioned earlier, Pence does have the ability to recognize debate, to recognize individuals for debate. So what’s going to happen, project, and I don’t think it’s going out on a limb to say that we’ll see people like Hawley and Cruz and House members get up and talk about election fraud and election irregularities, and call for Congress to launch an investigation call for an audit in every highly contested state that would occur during the next 10 days.

Anne Milgram:

And the whole goal is to really undermine confidence in the integrity of the election, because the end result again, is predetermined. And we know that Joe Biden is going to come out. We know that there are not enough votes to sustain this challenge.

Preet Bharara:

Well, I don’t know that Trump knows that. I think Hawley knows that. I think Cruz knows that. I don’t know to a certainty that Trump knows that. And we’ll talk about the extraordinary lengths to which he has gone, namely has called to the Georgia secretary of state. And we’ll talk about that at some length because that’s a doozy, but I don’t know that he thinks that.

Preet Bharara:

At the end of the day, what I think is important to remember going back to the original listener question, is because the way the law is written and because an undoing of the election would require a majority in favor of that result, both in the House and the Senate to occur. And in the House … By the way, I’ve been thinking from time to time, we always say recently that the most important election of our lifetime was the election in 2020.

Preet Bharara:

There’s an argument to be made that actually was 2018, in the sense that, but for the election of 2018, the midterm in which the House was taken back by the Democrats, I don’t know in what position we’d be right now. If the Republicans had majorities in both the Senate and the House, I know there’s a counter argument to this, but if they did, I’d be a little more concerned about January 6th than I would otherwise be. Even though I think ultimately-

Anne Milgram:

I feel the same way.

Preet Bharara:

Yeah. I think ultimately, it would be struck down by the courts, but who wants it to go to the courts?

Anne Milgram:

Oh, that’s a mess. And even if the courts ruled quickly, there’d still be uncertainty for a period of time. But I was thinking this too, that one of the reasons why I think that this is so dangerous for 140 House Republicans, a dozen Republican senators are going to support this effort to basically invalidate lawfully counted ballots and the will of the people.

Anne Milgram:

The fact that you have that group of people doing this. And again, we know they’re not going to succeed because the Congress is divided, but it does make you really think about the fact that if Congress wasn’t divided, what could possibly happen here, that there could be a vote to undermine the democratic will of the people. And in my view, that’s a terrifying thing to think about.

Preet Bharara:

Look, and smart Republicans, whether you think they’re smart or not, but many of them are making the right points. And they’re making not just principled points, they’re making pragmatic points, Liz Cheney among them. And they’re saying, essentially what goes around, comes around.

Preet Bharara:

And if you set a precedent for the vice-president of the United States acting in his or her capacity, as the president of the Senate can decide, even after the electors have voted, the election has been certified, et cetera, et cetera. You know what? I kind of think that there’ve been some allegations of voter fraud in some of these places. I’m not going to recognize some folks. I’m giving the election to my party.

Preet Bharara:

I mean, that is not how the system works. If at the end of the day, after 100 some odd million people have voted and you have all these processes that have unfolded including votes in States, including court challenges, not just one or two, but dozens of core challenges, the electors meet, they vote, things are certified, and then you have the vice-president by Fiat, simply being able to pick and choose which votes will be recognized and which votes won’t be. That’s not something that Republicans want either if they’re of sound mind.

Anne Milgram:

Right. The argument is almost … I’m not sure it’s exactly this, but the argument is almost that unless the election is perfect and there are zero problems, whether it’s intentional fraud or accidental mistakes in the election, that you get to say your side won. And if that were the case, then it would be true for both Democrats and Republicans. It’s a terrible theory of elections and democracy. And we don’t hold anything to that standard of perfection because we’re people and people make mistakes in their problems. But it really is sort of an astonishing argument to make, which is that we don’t think the election was perfect. So we just have to assume that our guy is the winner.

Preet Bharara:

And there are no perfect elections. But just imagine in 2000, this is an example people keep pointing to, I think, correctly. There was a contested race between the vice president himself, the sitting vice president, Al Gore and George W. Bush. And we all know the story of Bush V Gore.

Preet Bharara:

And there were a lot of legitimate complaints to be made about what happened in just one state in Florida. And if you went back in time and you applied this precedent that Donald Trump wants and some other people want to 2000, what would the reaction have been had Al Gore decided, “Yeah, I’m sitting by the president of the president of the Senate for purposes of this proceeding. I won.” All hell would have broken loose.

Anne Milgram:

Yeah. All hell would have broken loose. And the Republicans would have rightly been screaming that there’s a democratic process for elections to play out and that the vice president doesn’t have the authority under the constitutional laws to just use up that power that belongs to the people and the states.

Anne Milgram:

And we should note this, particularly that the vice president’s role is limited, particularly because of the scenario you just talked about in 2000, where it is often the case that the vice-president … Well, first of all, they’re always going to have loyalty to the sitting president in a situation like this. Pence is Trump’s vice-president, but also they could be the candidate themselves. So you would never give one person authority to [crosstalk 00:14:15].

Preet Bharara:

Yeah. Kamala Harris is like, “Okay, this is looking good for [crosstalk] me.” So it’s nonsensical. It hurts democracy. It hurts people’s confidence in the political system, in politicians, and all these things that get done here by Trump and his allies. And then I pointed this out in the book I’ve done with the democracy task force that I co-chair with governor Christie Todd Whitman, you want to fix these things and you want to restore these norms, not to punish Republicans or to punish Trump, but to prevent anyone from either party [crosstalk 00:14:52].

Anne Milgram:

Democrat or Republican are great.

Preet Bharara:

Yeah. Because this kind of corruption is not conservative or liberal. It’s not progressive or conservative. This kind of corruption is abuse of power. And Democrats are capable of abusing power, Republicans are capable of abusing power. And the precedents that are getting set here with respect to nepotism among other things that are classification issues. And now how you deal with an election, an unprincipled Democrat is just as capable of doing all of these things as Donald Trump in the future, right?

Anne Milgram:

Yeah, 100%. Abuse of power means that it’s most often done by the party in power. The people who have the power are the ones who [crosstalk] Yeah, but it could be Democrat or Republican, whoever happens to be in power. And I think you and I have talked about this in the political corruption context before that. It tends to be the dominant party that you end up prosecuting more for corruption because they just have access to the wheels of power.

Anne Milgram:

Just a note on Republicans, because I was impressed with representative Liz Cheney, the third ranking member in leadership. And CNN did a good piece on her stance where she basically said, “This is the most important of all votes that we take, because nothing in the constitution supports the idea that Congress could substitute its views for the views of the voters to decide who the president is.” And that shows political courage. I think Mitt Romney has come out very strongly against what Hawley and others are doing. Susan Collins has come out.

Anne Milgram:

I know she’s often not a profile encouraged, so I don’t look to her as one, but I do think the senator from Pennsylvania, I do think it’s important to note that it feels to me like there’s a divide. And the divide is between those who are upholding the constitution and the laws and the democratic principles of how we elect people, including them to the Congress and to the presidency. And then there’s this other side. And whether it’s because of Trump running for president in 2024, because these individuals themselves are auditioning to be running for president in 2024.

Preet Bharara:

Yeah. I think that’s it.

Anne Milgram:

Yeah. It really is. There’s an authoritarian anti-democratic movement that’s happening that really, it feels to me like the Republican party is splitting maybe a little bit along these lines. And I don’t know what you think and whether that’s a fair read of it.

Preet Bharara:

No, I think that’s right. I think Josh Hawley came out first. Also, as I mentioned, educated lawyer at the highest level, because he’s trying to impress Trump’s base and then not to be out done. Ted Cruz said, “Wait, hold on. I’m here too. I can make all those same arguments.” And what’s odd about the Ted Cruz situation is you will recall that back when Ted Cruz looked like he won Iowa in 2016, what did President Trump say, fraud, election irregularity about Ted Cruz.

Preet Bharara:

And Ted Cruz turns around, and without proof of that here, that any court will recognize adopts the Trump and the Trump in view and approach and does the same because he thinks it’s in his political interest. Should we talk about the lengths to which the president has gone? And there’s been all this reporting about how close aides to the president advisors are pulling their hair out and are concerned because they think the president has not really allowed it to register that it’s over.

Preet Bharara:

And you and I … I won’t speak for you, I’ll speak for myself. I said repeatedly, largely what the president is trying to do is create a narrative so that he can explain a way he lost before the election and certainly after the election. And I think it’s become increasingly clear that it’s not just a narrative, it’s not just a fully enact on the president’s part. He is desperately looking for a way thinking there is some crazy, the hail Mary pass of centuries politically, and actually undo the election.

Preet Bharara:

And I think there’s no greater proof of that, although I think it’s futile and dumb ultimately. But that crazy hour long call that he made to the secretary of State of Georgia, Brad Raffensperger. And so, I think there’s lots of talk about in that call. Do you agree that the president himself … Because it will bear on the question that we’ll also address, and that is criminal exposure. What is in the president’s mind? What do you think is in his mind? I know that’s a hard question.

Anne Milgram:

Yeah. Well, right. Well, this is what I was going to say to you about the criminal prosecution thing of what prosecutor in their right mind would want to take a case where they have to prove what’s in president Trump’s mind. And we’ll talk more about that in a second, which is why I think bringing a case here would be complicated. But I think you’re right to ask this question of, is this to create a narrative in the president’s mind because he hates to lose, he hates losers and he cannot imagine like, you lose the presidential election, that’s a huge loss.

Anne Milgram:

And so in his mind, I think he needs to justify it. So I think that is a part of it. I also agree with you that there is a fairly large part of him that believes it. And I think there’s a couple of reasons why that may be the case. And of course, we don’t know any of this for sure. But the first is that the president has embraced this shifting idea of truth. We’ve talked about this before that there’s no absolute truth in places like Russia, where Putin has this idea of everybody lies, we lie less, or here’s why we’re doing something.

Anne Milgram:

And the polarization of Cable News and news medium, and also social media, frankly, has created this situation where you can kind of pick your truth. So you could take any issue, the election, and find two polar opposite versions of it that purport to be true in the media. And so, that gives someone like the president, something to hold on to. It gives it more than narrative. It gives, in the president’s mind, I think a flavor of truth.

Anne Milgram:

Now, the other piece that I think has happened with the president is that he’s also … And this has been reported. It’s a little bit of the subtext in some of the reporting, but it’s been reported repeatedly that there are a number of longtime White House aides who believe the president lost, who believe the president should concede the election or at least move on. But then there are these other voices who are coming in, who are pushing the president to keep fighting, who are telling the president that votes were stolen, that votes were cast on behalf of people who are deceased, that people moved from other states to vote.

Anne Milgram:

And the president wants to believe it. He wants the narrative of not being the loser. And so he’s embracing it. So I think in some level, in my view, he has to know he lost. They lost every court case but one, out of something like 60 plus court cases. There’s no evidence that’s been brought forth of the sort of conspiracy allegations that have been made. And yet, there are people who are still on Cable News. There’s still this real sort of line of media that is attacking the integrity of the election. And so, I guess my answer is all of the above, maybe. And-

Preet Bharara:

Yeah. He doesn’t have to pick one. And just to amplify what you said in terms of the proof that there was no widespread election fraud, voter fraud, they could have changed the election. Think of all the sources that make that clear. All the court cases you mentioned. By the way, within those court cases, many, many of them had judges who were appointed by Trump himself. Then with respect to decisions from the Supreme Court, the highest court in the land, a third of the court was appointed by Donald Trump himself, and it has a conservative majority.

Preet Bharara:

Also, let’s not forget Bill Barr and DOJ. And Bill Barr himself on his way out said there was no evidence of widespread voter fraud that could have altered any of the elections or the election overall. And then on top of that, you have what we’re talking about now, Republican officials in states like Georgia, who don’t have any interest in ignoring legitimate voter fraud accusations. I mean, what’s crazy about this [crosstalk] Yeah, what’s crazy about this is Governor Camp and secretary of State Raffensperger, voted for Trump, supported Trump.

Preet Bharara:

All Republicans wanted Trump to win. It’s the secretary of State’s duty of office to fair it out voter fraud, and to deal with these issues. So if those things were present, and this is the common sense question that I don’t know what the answer to is from Trump’s perspective, all of your incentives are in favor of siding with the president if what the president says is true. The only reason you would think. I tweeted this question, what is the rationale that’s articulated?

Preet Bharara:

So in circumstances where every incentive, professional, political, partisan, personal, how fun is it for Brad Raffensperger and these other folks to be yelled at by the president, and to have death threats come because crazy people are saying the president is right and you’re wrong. Every incentive points towards accepting the allegations if they have to be true. The only reason he would be acting the way he’s acting as a rational human being would be if they’re not true, right?

Anne Milgram:

Yes. And to preserve the integrity of the election, which is his job. When you’re elected secretary of state and you run the elections, your job is to make sure that the elections are fair, that the votes are properly counted, that if there’s fraud, it’s investigated. And I think I’ve been very impressed by him.

Anne Milgram:

And I also would note that this does take political courage to do what he’s now done, because this is not an easy thing for the politically elected secretary of state, who very, very likely has just ended his political career, because he has gone against the president and he’s now publicly called the president out as essentially a liar. And he said it nicer than that on the call, but he basically said, “Your data’s wrong and you don’t have the right facts. And so-

Preet Bharara:

There’s another great person who we were talking about before we started taping, Gabriel Sterling, who gave a lengthy press conference yesterday. I don’t know his exact title, but he’s the chief elections sort of operational person in Georgia, who went point by point through the allegations made by the president and his allies about dead people voting, about miscounting and all sorts of other things, packing, et cetera. And says, “There’s no evidence for any of them.” And he’s kind of exasperated when he says those things, and look, it takes courage for him too. He’s another person who’s Republican and a conservative, and presumably support the president.

Anne Milgram:

And who may see their political career harmed. And I believe it, I know you do chew that, that’s the price you pay to do the right thing when you’re in government, that it may change your opportunities in life from a career perspective, but they both have shown a lot of strength. And remember, part of the hard piece here is that as you note, on every allegation, none of them have been supported by evidence. And Trump is used to, in some ways, molding public opinion by saying something is true.

Anne Milgram:

And we know that just because you say something is true, doesn’t make it true, but he’s gotten very far by making allegations and putting people in the position of sort of defending against those wild and unsupported allegations. And here, what you have is those allegations are undermining democracy. They’re also undermining people’s confidence in voting.

Anne Milgram:

And so, you have two people, Republican political appointees and elected officials saying, that’s not accurate, and really calling the president out in a way. And to do so, they have to do it with the detail that you and I are talking about. I mean, they have to be confrontational. There’s no other way. Silence is almost acquiescence in some ways at this moment.

Preet Bharara:

If you listen to the call and you look at the transcript of the call between the president and the secretary of state, you see that on the president’s side, he uses certain terms that make clear he doesn’t have hard evidence. And there’s a vagueness and an ambiguity. He says things like, “In my opinion, there are rumors to this effect based on what I’ve heard.” Those are direct quotes from the president of United States.

Anne Milgram:

And that’s always what he does. He always has somebody else has said-

Preet Bharara:

It’s always what he does.

Anne Milgram:

Like, “I’m not saying it, but somebody else has said.”

Preet Bharara:

Well, but when it comes to what he wants, he’s quite specific. And he’s specific to the tune of, “Look, essentially, we need to get 11,780 votes.” [inaudible] At some point, “Give me a break.”

Anne Milgram:

I did smile at that, “Just give me the number of votes I think I need.”

Preet Bharara:

So there he has very specific … No, his very specific data that comes from the voting gap. And by the way, the whole thing is kind of crazy in the sense that, even if he succeeded in Georgia, and got some-

Anne Milgram:

It doesn’t matter.

Preet Bharara:

Yeah. There’s other states that he lost. And so, I think the legitimate question has been asked, what kinds of calls have been occurring between the president and officials in these other states? Now, in some states, he’s at a disadvantage because the officials are Democratic. So if he can’t make headway with the Georgian Republican officials, he’s not going to make headway with Democratic officials.

Anne Milgram:

This is one of the ways it shows the desperation though, because even if Georgia had found those votes for him, he still would not have the votes to win, to be the president of the United States. So I do think this is a desperate call. It’s also weird in a couple other ways, just to point out, which is, first of all, it’s an hour long call. I mean, that’s a long call. The only person I talk to [crosstalk 00:28:39].

Preet Bharara:

It’s a length of this show.

Anne Milgram:

Yes. Exactly. The only person I talk to for that amount of time is you once a week [crosstalk] And when I do work calls, I try to keep them … I know people will find this hard to believe, but I try to keep them to 15, 20 minutes. It doesn’t always work, but I mean, half an hour is a long call in my book. And it also takes you out of doing other work, and you’re the president of the United States.

Anne Milgram:

So it’s a bizarre, bizarre thing. The other thing is the way he frames this, “People are angry. They hate what you did to the president.” He is the president. So he’s also talking about himself in this strange third person. And I thought the Washington Post did a good job summarizing it saying Trump alternately berated Raffensperger, tried to flatter him, begged him to act, threatened him with vague criminal consequences if the secretary of state refused to pursue his false claims.

Preet Bharara:

“You know what they did, and you’re not reporting it, that’s a criminal offense. And you can’t let that happen. That’s a big risk to you and to Ryan, your lawyers, that’s a big risk.”

Anne Milgram:

So it is a very strange call in many ways. And there were also a lot of people on it which also is a little bit surprising.

Preet Bharara:

So quick, can we talk about that?

Anne Milgram:

Yeah.

Preet Bharara:

Here’s what I want to ask you. So you’re either an outside lawyer to the president or you’re a lawyer in the White House. And by the way, I should say in fairness, that there were reports that the White House counsel Patsy Baloney did not know about the call until after it happened. I don’t know if that’s true or not. And the reporting is that he was not involved in the call. It’s other folks, including this [crosstalk 00:30:21].

Anne Milgram:

Mark Meadows, the Chief of Staff.

Preet Bharara:

Mark Meadows, the Chief of Staff who participated in the call and spoke in the call. And another outside lawyer that we’ve only recently heard about Cleta Mitchell from a fairly well-respected from Foley and Lardner, which from, by the way, has put out a statement saying that they’re concerned about their partner’s participation in the call and the suggestion that it was not appropriate and inconsistent with what the firm had agreed to do or not do in the case. But you’re asked by the president.

Preet Bharara:

So I want to call up the secretary of State of Georgia. And I think of yourself, not just as an advisor to the president, not to someone who has to have general ethics, but also as a member of the bar, what do you tell the president? Do you tell the president under no circumstances, can you call the secretary of state? Do you tell the president, “Do what you want, I’m not going to be part of it.” Do you tell the president, “If you’re going to call the secretary of state, here are the guardrails. Here are the limitations to what you can or should say for your own protection, both political and legal.”

Anne Milgram:

Yes. I think you’d ask a lot of questions about why the president wants to call the secretary of state, why the president couldn’t have someone else. Make a call if there was a legitimate reason for that call. I mean, the president of the United States generally doesn’t pick up the phone and call state secretaries of States. And the president was-

Preet Bharara:

Sometimes he calls U.S attorneys.

Anne Milgram:

Right [crosstalk] happening. Yeah. And also should be happening. And the president is a candidate in the election and the secretary of state is presiding over the election. So there’s this sort of air of impropriety to begin with. The other piece of this, which I think you would have going through your head, if you were a lawyer, in addition to wanting to know, well, why are you calling the secretary of state? Is that you would be thinking about the fact that Lindsey Graham had already called the secretary of state, and the secretary of state had gone to the mic to basically say, “Lindsey Graham called me and was basically trying to sway the election. Was trying to get me to change vote tabulations.”

Anne Milgram:

Graham completely denied it. It then came out that Graham had called the other secretaries of states or claimed to have called other secretaries of state as well. But it was sketchy and it raised, I think, a lot of eyebrows that there were political individuals trying to influence the secretary of state and the vote tabulations. So I think you’re already on notice that the secretary of state that this has happened, and also that the secretary of state is willing to call you out if he doesn’t believe that something above board is going on.

Preet Bharara:

Yeah. Look, I want to talk about the taping and the ethics of the taping in a second, but the segue of that is this, an advisor to the secretary of state when asked why the recording was made or in justification of the recording of the call with the president, essentially repeated the argument you just made, which was, we already had Lindsey Graham, a high ranking senator in the U.S Senate call and try to get us to change votes.

Preet Bharara:

And so yeah, this time around, we thought it’d be a good idea to record the call. So they were not only on notice that this was a dangerous thing. They were on notice that there might be a call out of it, as you said, and then they should have anticipated that they might’ve done exactly what they did, which is record the phone call. And now there’s lots of-

Anne Milgram:

And also one other point to that, which is that the president has been tweeting out all these conspiracy theories that again are unsupported and have not been proven, but the secretary of state and his team will know exactly what the arguments are the president is making as well, which are not supported by any of the evidence that the secretary of state has. So the secretary of state definitely has a lot of information about the president’s mindset going in, and as very clearly refuted those things publicly before.

Preet Bharara:

Yeah. So on this question of making the recording, I’m a little disgusted by people who are in high dudgeon on the side of the president who were concerned about the recording of the phone call, which by the way, is totally legal to one consent state, Georgia.

Anne Milgram:

Yeah. It depends on the state. It’s worth noting, there are some states where [crosstalk 00:34:12].

Preet Bharara:

You have to have both people, who have to consent to the recording, which by the way it’s interesting. The fact that it’s not criminal doesn’t end the inquiry for, I think reasonable people like you and me, but it seems to end the inquiry for people who are on the side of the president, whenever any allegation’s made. Well, it wasn’t a crime. It wasn’t a crime. It wasn’t a crime. That means it’s okay. If that’s the standard you’re applying, then the discussion should be over with respect to this recording.

Preet Bharara:

Now, I happen to think as a general political matter and fairness matter in totally ordinary low stakes circumstances, that it’s maybe not the most polite thing to do in the world, whether it’s allowable under the law or not to record people without their knowledge, and to record people who are important elected officials, maybe arguably in certain circumstances, maybe it’s not cool, not kosher.

Anne Milgram:

It’s also an extraordinary thing to record the president [crosstalk] It’s not just an elected official, it’s the top elected official in the country.

Preet Bharara:

Yeah. With an understanding that you may use it now in circumstances where, and I have a personal experience with this. In circumstances where you’ve got a guy who lies repeatedly, and who in a phone call you might anticipate is going to say or do things that are potentially unethical abuses of power or even cross the line into criminal conduct, maybe you want some proof of that.

Preet Bharara:

But mostly, people of integrity who have their own reputations don’t want to have their conversations lied about, A, because they don’t want that, B, because to the extent something unseemly is going to happen and criminal conduct is engaged in, you want to be able to defend yourself. I mean, imagine that call happens and it’s not recorded. And there’s some reporting about what happened in the call. And there’s an allegation-

Anne Milgram:

And Trump tweeted the next day. He tweeted the next day [crosstalk 00:36:07].

Preet Bharara:

Yeah. But suppose something different. Suppose there’s an allegation that Raffensperger totally was open to it. And it was like, “Yeah, Mr. President, you’re right. I’ll see what I can do.” He opens himself up to criminal liability. So you want it for the truth, you also want it as a defense. Now, people may remember that almost four years ago now, I was fired by the president of United States, but that came right after he called me for a third time, the first time as president, two times during the transition.

Preet Bharara:

And we went through this analysis, June Kim and I, my deputy and I at some length before we made the decision of whether to return the call at all. And we were wide ranging in our consideration of options. One of the concerns about having the phone call was I’m sure the same concern that the secretary of State of Georgia might’ve had. I don’t trust Donald Trump to stay within the lines in the phone call. I don’t know what it’s about. And maybe he will, but maybe he won’t. That’s a problem. Two, I don’t trust him to say accurately what the call was about afterwards.

Preet Bharara:

So we discussed, if I did call him back, would I have a witness? Would I have someone else in the room? We discuss briefly. And the surprise, some people when I mentioned it publicly around that time, it seems less sensational now. We discussed briefly the idea of my returning the call and for everyone’s protection, including the president’s protection.

Preet Bharara:

If it was in fact an innocuous call, if it’s an innocuous call, then it protects him too. If it’s not an innocuous call, then it’s evidence against him. We discussed maybe taping the call. And very quickly, we decided June and I together decided, “You know what? I don’t like the feel of that. That seems like a weird thing to do.” I think it was right for Brad to do, because I think the circumstances were different. So I decided I’m just not going to return the call. And it was a little bit harder for him not to return the call, or I guess-

Anne Milgram:

That’s what I was going to say. I think we have to differentiate that because you, as a appointed United States attorney who oversees criminal investigations, there’s very clear process that’s supposed to be followed. The president of United States doesn’t reach out to the U.S attorney. Whereas here, the sitting secretary of state who is a politically elected official, it’s very different. And I think Raffensperger had to return the call. I don’t think it was possible for him not to return the call. What you said also, I just want to touch on two points.

Anne Milgram:

The first is that, usually when you’re a federal prosecutor, one of the first things you learn when you’re talking to someone and there could be any type of issue is to have a witness present. And so, one of the things you do a lot in calls where you’re uncertain of what the call may involve, but you’re concerned about someone misrepresenting it or saying or doing something that’s improper, you have a witness present. With a lot of people that works.

Anne Milgram:

With Donald Trump, I don’t think it does work, because even having that witness present, it still becomes the president, he said, she said situation. And the president really uses social media and the power of the presidency in aggressive ways to discredit folks when he wants to. And so, I don’t think the witness would have been sufficient here for Raffensperger to come out and say, “I felt that the president was trying to get me to change the votes.”

Anne Milgram:

So I think he did this as an insurance policy. I don’t know. And this is a question I have for you. I don’t know whether he taped it, believing that he would release it for certain or just, I suspect he did it to have it in his pocket in case he needed it because he didn’t release it on Saturday [crosstalk] He didn’t release it the day of the call.

Preet Bharara:

Yeah. Look, if I had had the call with the president and taped the call, it would have been, so there’s a record for whatever purpose, if there’s a future investigation or some other such thing. But then part of the reason we decided not to return the call rather than have the call and tape it, is suppose it’s ambiguous that the president said something appropriate or inappropriate.

Preet Bharara:

Now I’m the sitting United States attorney in the executive branch. So it’s a little different for him. He’s not part of the same government in Georgia. Now I’m sitting on a taped phone call with the president. What am I supposed to do with that in any circumstance? Suppose the president said something inappropriate.

Anne Milgram:

It’s a hard question.

Preet Bharara:

What am I supposed to do with that tape? I’m supposed to send it to the attorney general of the same party? Let’s say it was totally innocuous. Now I have a tape of an innocuous call between me and the president. I sit on that. What if it’s ambiguous? What if it’s something of a hybrid? And then what about the next time he calls? Do I record? It just became too difficult to think about the hypotheticals.

Preet Bharara:

And then the best decision we came up with in our discretion was, until we know more specifically what the call was about, and it was through proper channels, and the attorney General’s office was looped in, that for all parties, not just me, but for the president also, there shouldn’t be a conversation between the president of United States.

Anne Milgram:

Preet, have you ever heard whether … I mean, did the president fire you because he wanted you to do something that obviously you didn’t agree to do, or do you think he fired you for not returning his call and not being someone that he could get on the phone and potentially control?

Preet Bharara:

So I don’t know, but I will say, and I should remind folks who care what the sequence was. So it was Thursday, March 9th in 2017. I got a call in the early evening, a message left by the secretary of the White House. We had our debate. I called that secretary back and said, I think for various reasons, including the acquiescence in the decision by the Chief of Staff to the attorney general, Jeff Sessions at the time, that we shouldn’t have this conversation, knowing that it would anger the president. And then the next day at about 2:30, Friday at about 2:30, I got a call asking for a letter of resignation. But 45 other, it was attorneys who were appointed by Obama, got the same phone call.

Preet Bharara:

So maybe it was already in the works, maybe it was already planned, but I’ve been around long enough to appreciate that. Given the circumstances and the timing, I find it impossible to believe there’s no connection at all, between my blowing off the president on Thursday and all the Obama U.S attorneys, myself included, being asked to leave within 20 hours or even fewer hours of my refusal to have that conversation.

Preet Bharara:

And then for various reasons, we don’t have to rehash here, I refuse to tend to a letter of resignation. I wanted to know if the president who had asked me to stay, look me in the eye, shook my hand, said stay. I was not aware of any change circumstances. I wanted to know that it’s his decision to fire me. And so, that didn’t happen until the next day. But I know it must’ve been going through the secretary state’s mind because I had a lot of those thoughts and concerns myself. And by the way, it’s even more justifiable in the Georgia case because another three years have gone by, and there’s been a lot more evidence of the president’s lies and how he characterized his conversations.

Anne Milgram:

Well, and calls.

Preet Bharara:

And calls. And you had Ukraine, right?

Anne Milgram:

Yes. I was going to mention Ukraine. I think it’s important to come back to that, that the president was calling in Ukraine trying to use his influence to get dirt on Biden. And it all goes back to the president using these calls to try to manipulate control, to move people, to do things that are often contrary to law. I mean, we should talk about the fact here that there are election fraud statutes, and there’s been a lot of discussion as to whether the president committed a crime in doing this. But this is what the president does and there’s ample evidence that the president has repeatedly made calls like this during the last four years.

Preet Bharara:

So we’ve gone a very long time and haven’t addressed the question that you and I have gotten most often in the last couple of days. So apologize to the audience for that. That question is encapsulated. There’s many of these, but here’s somebody who called in, David, who listens to the show. Dear Preet, and your show is terrific. Well, thank you. How can Trump’s call to Georgia secretary of state not be criminal.

Preet Bharara:

He asked Brad Raffensperger to find just enough votes for Trump to win Georgia. And he goes on to say, how can anyone listening to those recordings not fully understand that Trump is asking Raffensperger to commit a crime. Thanks, David. Before you answer that, do you agree with me that before we get to the question of whether it was a crime, it was unethical. It was an abusive power. It was a strong arm tactic, and potentially an impeachable offense.

Anne Milgram:

100%. Yes.

Preet Bharara:

So now in the question of criminality, Professor Milgram.

Anne Milgram:

I think the criminality question is a harder question. And you framed it exactly right. It is all of those things without question. They’re separate statutes. There’s a federal voting in election statute that prohibits essentially someone like the president from trying to knowingly and willfully deprive, defraud or attempt to deprive or defraud the residents of a state of a fair and impartially conducted election by influencing the, here, it would be the tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent under the laws of the state.

Anne Milgram:

So the idea there is that the president is trying to get the secretary of the state to not count ballots that the president knows to be legitimate. And we’re going to come back to the knows to be legitimate piece in a minute. There’s also a Georgia state law that is criminal solicitation to commit election fraud, which is basically essentially trying to get someone else and acting with the intent that that other person. So here it would be Trump acting with the intent that Raffensperger engage in conduct constituting a felony solicits requests commands, or otherwise tries to get the person to not count legitimate ballots or to interfere with the counting of legitimate ballots.

Anne Milgram:

And people have disagreed on this a little bit, Preet. So there are some criminal law experts that talk about, “Yes, it’s absolutely a crime.” There are others that say, it’s absolutely not. Where I come down on this is that there’s certainly a fair amount of evidence here that the president is engaged behavior that feels threatening to me, when he sort of threatens that if Raffensperger and the lawyer that he has on the call, Ryan Germany, that if they acted a certain way, it’s a big risk to them. And so, he’s certainly holding that over their head.

Anne Milgram:

I think what becomes the core question is, does the president believe those votes are legitimate or illegitimate? There is no proof that the president won those votes, but does the president intend at that moment and legitimately believe that he is entitled to those votes? The problem is it gets back to the first conversation you and I had, which is what is it? Why is the president doing this? And you get to a point where you do have to prove intent under these laws. And so, you are going to end up delving into the president’s psyche, which is not something that I think-

Preet Bharara:

Very difficult.

Anne Milgram:

It’s very difficult.

Preet Bharara:

And the question is, is he misguided or is he deliberately asking for cheating to be done. Now, rational reasonable people like you and me, and like a lot of conservatives and Republicans, as we’ve mentioned already, understand that what the president is asking for in the real world, given the data and the facts and everything else and the statements and the proof provided by Georgia officials, what he is asking for is undoubtedly illegal. If you believe the representations and you look in a clear-eyed way at the evidence and how the voting was done, and the absence of fraud, by implication saying with specificity like-

Speaker 3:

[inaudible] All I want to do is this, I just want to find 11,780 votes, which is one more than we have, because we won the state-

Preet Bharara:

The only way to come up with 11,780 votes is to unlawfully flip valid legitimate votes. So you and I get that. And I think when people ask the question, isn’t it a crime? They’re rational reasonable people who understand that that’s really what the president is trying to get done, but it’s not this most simple question to answer because the president does at times seem to be diluted in such a way that maybe he does believe.

Preet Bharara:

I’m reminded of a very profound, legal statement once made by George Costanza on Seinfeld, which has been revived during the Trump presidency. He once says to Jerry something like, “Remember Jerry, if you believe it, it’s not a lie.” Even if it’s false, I don’t mean to over complicate it.

Anne Milgram:

I think it sounds like we’re aligned here. I don’t want to say that there’s no version of events in which this is criminal, because this is the kind of thing that an investigation, if there were [crosstalk 00:49:04].

Preet Bharara:

No, I think it may very well be criminal. The question is, what is all the proof going to show? And so, my position on this is, I think we’re probably similar, which is why we can talk for an hour every week, that there is enough here that is worthy of a criminal investigation, whether state or federal, to find out other things that were said, what other beliefs with the president.

Preet Bharara:

I will say one more thing to take the other side of the hypothetical I just gave that the president is just misguided. Most of the time I have taken the position that we over infantilize the president. And we do him a more service than he is entitled to by suggesting he’s dumb or childish, or just having a tantrum, or he doesn’t understand stuff. He got elected president of the United States. And I know people like to say he’s dumb, he’s uneducated. He’s a smart guy.

Anne Milgram:

I agree with that [crosstalk] And he’s an artful politician. And again, we may agree or disagree with how he does it, but he’s-

Preet Bharara:

Yeah. Right. And there’s data points to infantilize him, let’s him off the hook morally and ethically, and maybe even legally. And there are plenty of occasions where famously the president says some nonsense, whether he is in private business or as the president. He says things publicly that are just ball-faced lies. And the question is, oh, does he believe the lies? Does he not? And then he is behind closed doors for a deposition famously, and he hedges, and he withdraws some of the fabrications that he’s made because he understands what it means to order a falsehood under oath.

Preet Bharara:

This whole business of calling me and not understanding the protocols, and why can’t you do this? And people say, well, maybe he just doesn’t understand. Lindsey Graham, I think once defended him, while Paul Ryan once defended him on that ground. This is a guy who understand full well that there was hay to be made out of the meeting on the tarmac between Loretta Lynch and former president Bill Clinton. So he is perfectly capable of taking advantage of improprieties that he perceives on the part of other politicians. And understanding the line between uttering BS to a reporter versus saying it under oath in a deposition. So we should give him a little bit more credit.

Anne Milgram:

I think your argument is that he understands right and wrong, and when he does the wrong thing, it’s knowingly. I think also that this is an example, and we’ve seen this repeatedly during the presidency as well, which is that there can be almost, I want to say mixed motives or two things can be true. So meaning this, remember when Jim Comey was fired, the president kept saying, “I have a right as president to fire the FBI director”, which is true. It’s also true that it could be a crime if you fire the FBI director to cover up criminal conduct, and it’s potentially [crosstalk] Exactly.

Anne Milgram:

Both things can be true, but because there is one legitimate component of it, the president exploit’s that. He did the same thing on the Ukraine call. He’s doing the same thing here in some ways, because there’s an ability that he has to make some argument that whether or not it’s true is plausible enough that complicates the reality of the other part of the argument, which is that the president is a purely transactional human being who does understand right and wrong.

Anne Milgram:

And so there is a bit of this, and it’s complicating. The other thing I want to note, and I think it’s really important because you just touched on it. And I think we don’t say this enough. When you watch Cable News, the question of the past couple of days has been, did the president commit a crime? Did the president commit a crime? And there were a lot of people who are out there saying yes. And I believe very strongly, and I’ve overseen hundreds, thousands of state local and federal prosecutions, and done them myself, you need evidence to be able to prove a crime.

Anne Milgram:

And there are some things that are absolutely criminal on their face. There are many other things that require investigations and conversations, and knowing more. Here, you would want to know what were the president’s conversations like before he called Raffensperger? What did he tell people was the reason that they were making the call? What did they tell him about those 11,000 votes? There’s just a lot of information that you would want to be able to say, yes, it was criminal.

Anne Milgram:

And there are a lot of reasons here given the nature of the call and having all heard it, why you would have to ask this question of what was the president’s intent, and can you prove, not whether or not his intent was bad, because I think reasonable people, as you sort of point out, could conclude the president had one goal in mind when he made that call. But can you prove before jury that a crime was committed and that the president had a certain intent?

Anne Milgram:

And so, I’ve just been listening to the airwaves and thinking a lot about, I think all of us have to be really thoughtful about saying something could be criminal, it’s worth considering an investigation, but that on its face, it’s not something where you could say absolutely a crime was committed.

Preet Bharara:

Look, on the spectrum of what is more or less criminal, you can imagine a call. Although I think it was pretty damning, you can imagine an even more damning call. And calls like that have been made in the past. There’ve been substantial interference with elections in the past notoriously in Chicago decades ago. You can imagine the president saying other things like, “Look, I want you to go into this precinct.” I’m just making this up. “And I want you to get 5,000 votes from this precinct. I just want you to change them. You just change them. I don’t care what you have to do, you just change them.” Rather than cloak it in this idea of perceived, but unproven voter fraud.

Preet Bharara:

And if you had statements like that, that makes it a much more easy case. Or things in the conversation that indicate that the president really doesn’t believe there was any kind of fraud, believes that everything was valid and legitimate and confirms that in the call, and nevertheless says, “Change votes, find votes.” That would just be a little bit stronger as proved beyond a reasonable doubt. But I do think it would be completely reasonable for an investigation to be opened by a local prosecutor or by a federal prosecutor, given how much that there is. Do you think that will happen?

Anne Milgram:

I don’t know. I mean, I think that it is very possible that an investigation could take place, but I also am mindful of the fact that, again, when it comes to proving what’s in this president’s head, that’s going to be an uphill battle, and that a lot of folks are eager to turn the page on what we’ve seen over the last four years. And so, I think this is the kind of thing where I don’t think the locals will take it.

Anne Milgram:

I think the question is, would an incoming U.S attorney in Georgia consider looking at this, and whether there’s sufficient evidence that they believe could be used to bring a criminal case. And again, I want to note that cases where you have to prove intent, and I would assume the president would not be cooperative with the investigation. And so, this is an uphill battle.

Anne Milgram:

And when you do political corruption cases, and I put this very squarely in the political corruption framework, you do very thorough investigations. You spend a lot of time and a lot of energy, and you really bring those cases when you believe that you have proved beyond a reasonable doubt. And that’s true of other cases. But I think that the threshold, I don’t know if you agree with this or not, at least for us when I was the state AG, the threshold was high to bring a political corruption case because you wanted to make sure that you had your ducks in a row that the evidence was secure.

Anne Milgram:

And so, I think I could also understand U.S attorney saying, it was exactly as you, and I said, it’s an outrageous call. It has all kinds of abuse of power written all over it, but that it doesn’t rise to the level of opening up a criminal investigation, or they could do a preliminary investigation and sort of see how easy it would be to make the case. Because again, I think on the face, more would need to be done to be able to answer the question of whether there’s a chargeable crime here.

Preet Bharara:

Final thing to say, we should point out to people an odd thing that happened, and I’m not connecting any of these dots because I don’t know that they bear connecting, but suddenly and without warning, the United States attorney in Atlanta appointed by Trump resigned after having indicated that he would stay until January 20th until the end of the term.

Preet Bharara:

I don’t know at all if there’s a connection, but there’s a lots of weird things going on with respect to the election in Georgia and the president and the secretary of state and the governor. But to leave office 15 or 17 days before you were planning to in the midst of all this, we’ll come back to you and report it. There’s more on that. The last point I would make is, for a lot of reasons, and if the timing were different, this is the kind of abuse of power that is arguably best addressed by the Congress and through impeachment, just like the Ukraine affair was.

Preet Bharara:

There are some people who were saying, “Go ahead and impeach him again. You’ve got 15 days left.” I’m not sure that’s the best use of resources, but in dicey situations like this, where criminality is not absolutely certain, when you can indict a sitting president, anyway, this is the kind of thing. And by the way, in the activity and the conduct relates to political activity, namely an election, it seems like the kind of thing that makes most sense to be dealt with in the House and the Senate-

Anne Milgram:

By congressional investigation. Yeah.

Preet Bharara:

Yeah. So as we anticipated when we were about to tape this morning, we’re going to spend a lot of time on the call. We were going to talk a little bit about the Manhattan DA’s office investigation and the pardons that happened since last we spoke, but I think we should let people off the hook. I suppose in the next 15 days, we’re going to see some of these additional pardons, perhaps even a self pardon.

Preet Bharara:

We’ll have to spend a long time addressing that and talking about that. I think the odds of that have gone up. I want to make sure that everybody who’s listening to us in Georgia votes, if you can still vote by the time the podcast comes out. And I guess next week, we’ll be looking back on what happened in Georgia. What happened on January 6th? Does it conform to our expectations or not? And the final 15 crazy days of the Trump administration.

Anne Milgram:

I agree.

Preet Bharara:

So we’ll be back next week. Happy new year, everybody. Send us your questions to [email protected]

Anne Milgram:

Happy new year, and we’ll try our best to answer your questions. Thanks, Preet.

Preet Bharara:

That’s it for this week’s CAFE Insider podcast. Your hosts are Preet Bharara and Anne Milgram. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore, and the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noah Azulai, Nat Weiner, Jake Kaplan, Calvin Lord, Jeff Isenman, Chris Boylan, Sean Walsh, and Margo Maley. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.