Listen to the CAFE Insider podcast
October 1, 2019

CAFE Insider 10/1: Impeachment Momentum

  • Show Notes
  • Transcript

In this episode of the CAFE Insider podcast, “Impeachment Momentum,” co-hosts Preet Bharara and Anne Milgram break down the whirlwind of news surrounding the Trump-Ukraine whistleblower scandal and the renewed email probe of Hillary Clinton’s aides at the State Department.

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




  • “Giuliani Subpoenaed for Ukraine Documents as Next Step in Impeachment Inquiry,” House Intelligence Committee press release, 9/30/19 (letter and subpoena schedule)
  • Clip of Giuliani on Fox News’ “The Ingraham Angle” holding up cellphone saying “it’s all here, right here,” 9/24/19
  • Anne Milgram’s tweet about subpoenaing Giuliani’s phone, 9/25/19
  • Clip of Giuliani’s contradictory statements about Ukraine on CNN’s “Cuomo Prime Time,” 9/20/19
  • Clip of Giuliani saying he wouldn’t cooperate or testify before the House Intelligence Committee with Adam Schiff as chairman on ABC’s “This Week,” 9/29/19
  • “Ukrainians understood Biden probe was condition for Trump-Zelensky talks, says former Ukrainian adviser,” ABC News, 9/25/19
  • “Giuliani says Trump did not pay for his globetrotting push for Biden probe,” Reuters, 9/29/19
  • “Attorney-Client Privilege,” Legal Information Institute
  • “Giuliani Cannot Rely on Attorney-Client Privilege to Avoid Congressional Testimony,” Lawfare, 9/30/19
  • “Giuliani works for foreign clients while serving as Trump’s attorney,” Washington Post, 7/10/18


  • “It was chaos, and then a real lawyer showed up,” Washington Post, 9/18/19
  • “Mike Pompeo gave a very evasive answer when asked about the Ukraine call,” CNN, 10/1/19
  • Clip of Stephen Miller, senior adviser to President Trump, on “Fox News Sunday” with Chris Wallace, 9/29/19
  • Clip of Jake Tapper fact-checking Rep. Jim Jordan on CNN’s “State of the Union,” 9/29/19
  • “Biden campaign demands networks stop booking Giuliani,” Politico, 9/29/19


  • “Hearsay,” Legal Information Institute
  • The whistleblower’s complaint, 9/26/19
  • 50 U.S. Code § 3033: Inspector General of the Intelligence Community, Legal Information Institute
  • Memorandum of President Trump’s July 25 phone call with Ukrainian President Volodymyr Zelensky, 9/25/19
  • Office of the Inspector General of the Intelligence Community’s Statement on Processing of Whistleblower Complaints,, 9/30/19
  • Sen. Lindsey Graham’s hearsay tweet, 9/28/19
  • “Trump’s ‘hearsay’ defense plays right into Democrats’ hands,” Washington Post, 9/30/19
  • “Fact check: Were whistleblower rules changed before Ukraine complaint?,” NBC News, 9/30/19 before Ukraine complaint?


  • Trump’s tweet suggesting that House Intelligence Committee Chairman Adam Schiff should be arrested for treason, 9/30/19
  • “Fact check: Breaking down Adam Schiff’s account of Trump’s Ukraine call,” CNN, 9/27/19
  •  Trump’s tweet about “deserving” to meet the whistleblower, 9/29/19
  • “White House Knew of Whistle-Blower’s Allegations Soon After Trump’s Call With Ukraine Leader,” New York Times, 9/26/19
  • “Why The Times Published Details of the Whistle-Blower’s Identity,” New York Times, 9/26/19
  • “Deep Throat’s identity was a mystery for decades because no one believed this woman,” New York Times, 9/27/19


  • U.S. Department of Justice Office of International Affairs,
  • “I helped classify calls for two presidents. The White House abuse of the system is alarming,” Washington Post, 9/29/19
  • “White House restricted access to Trump’s calls with Putin and Saudi crown prince,” CNN, 9/28/19
  • “Trump Pressed Australian Leader to Help Barr Investigate Mueller Inquiry’s Origins,” New York Times, 10/1/19
  • “Barr personally asked foreign officials to aid inquiry into CIA, FBI activities in 2016,” Washington Post, 9/30/19


  • “N.R.A.’s LaPierre Asks Trump to ‘Stop the Games’ Over Gun Legislation in Discussion About Its Support,” New York Times, 9/27/19


  • “READ: Letter from State Department to former employee about investigation into Hillary Clinton’s emails,” CNN, 9/29/19
  • “State Dept. intensifies email probe of Hillary Clinton’s former aides,” Washington Post, 9/28/19


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

Anne Milgram:             I’m Anne Milgram.

Preet Bharara:              How are you Anne?

Anne Milgram:             I’m good.

Preet Bharara:              It’s October 1st.

Anne Milgram:             Yeah, it’s fall.

Preet Bharara:              You’ve paid your rent?

Anne Milgram:             I hope so.

Preet Bharara:              Or mortgage?

Anne Milgram:             Yeah, automatically I think I try.

Preet Bharara:              I’ve always gotten the sense of you’re financially responsible.

Anne Milgram:             More than not.

Preet Bharara:              You know I tell the whole world whether you are or not.

Anne Milgram:             Preponderance of the evidence more often than not.

Preet Bharara:              We’re taping on the morning of October 1st Tuesday. We did not take yesterday because the Jewish New Year, happy Rosha Hashanah everyone.

Anne Milgram:             Happy Rosha Hashanah.

Preet Bharara:              It’s a good thing we didn’t take yesterday morning because at about 4:00 PM yesterday there was an avalanche of news.

Anne Milgram:             Yes.

Preet Bharara:              Story after story, after story. We are now able to talk about those things. Let’s start with something that you tweeted about a few days ago. Which I thought was both right on the money and also funny, which was after Rudy Giuliani appeared on Fox, I think saying you know in ways to defend his behavior, he held up his mobile phone. Was it a galaxy? Is it an iPhone? I can’t remember what it was.

Anne Milgram:             I don’t know.

Preet Bharara:              He holds up his phone and starts reading from texts and says, “All my information, all my investigation, it’s all right here on this phone.” You said, “Why hasn’t anyone subpoenaed Giuliani’s phone yet and him?” Guess what?

Anne Milgram:             They did.

Preet Bharara:              They did. I think they were following your Twitter feed.

Anne Milgram:             I was, and I don’t tweet a lot.

Preet Bharara:              You should tweet more. You should tweet more.

Anne Milgram:             Every once in a while I throw it out because I can’t take it. I was watching the Fox news clip, I was thinking a lot about Giuliani, and he’s one of them.

Preet Bharara:              I’m sorry to hear that. Wow, wow.

Anne Milgram:             Yeah. He’s one of the more fascinating parts of this event. I was going to say story.

Preet Bharara:              Saga.

Anne Milgram:             Saga is the right word. I’m watching him on Fox News, hold up his phone and say, “It’s all here, it’s all in here.” I was like, “Oh.”

Preet Bharara:              Let’s go get it.

Anne Milgram:             Right. Because you and I still think like prosecutors, and the first thought I had was, “Great, somebody needs to take it.” They have issued a very comprehensive subpoena to Giuliani that’s returnable on October 15th that basically says, “Give us every document, every communication you have related to Ukraine, to Hunter Biden, to Burisma, to contacts with the State Department.” This is really important because I think there are a lot of unanswered questions, forget the phone call for a second even, which is critically important. All of these questions about who Giuliani was interfacing with at the State Department, what they said, whether or not it’s been reported, and it’s corroborated I think in a number of ways through the whistleblower complaint and otherwise that both that the Ukrainians knew that military aid wasn’t being given, and that one of the deals that had to be made before the President of the United States, President Trump would talk to President Zelensky was in agreement that they would talk about Biden. Who cut that deal, right?

Preet Bharara:              Right.

Anne Milgram:             Was it Giuliani? It was someone from the State Department in it. I think that there is so much that needs to be answered about Giuliani. Now, What’s not in the subpoena, from what I can tell so far. Maybe I read it pretty quickly, it’s four or five pages. You raised a really interesting question last week that I’ve been thinking a lot about which, who’s paying Rudy Giuliani?

Preet Bharara:              Well, that’s going to get to the question perhaps of what ability he has not to respond to the subpoena. That subpoena as you said, it’s a lot of details, a lot of names. It’s really comprehensive. Probably took them a few days to put together a fully comprehensive subpoena attachment. I also want to make reference to the cover letter, which is significant for a couple of reasons. The tone is sharp and strong, but first the letter says, “Your failure or refusal to comply with the subpoena, including at the direction or behest of the president or the White House,” this is important, “shall constitute evidence of obstruction of the house’s impeachment inquiry and may be used as an adverse inference against you in the presence.”

Preet Bharara:              That’s point one, which I think is incredibly important. Whether or not they’re able to ultimately compel the document in the testimony they’re going to say “For lay people.” If you don’t keep it up, we’re going to assume it’s the worst, and we’re going to assume it’s against you, and that could constitute an article.

Anne Milgram:             This is so important because what we’ve seen repeatedly as the administration just say, “We’re not giving it to you.” What Congress is finally doing is really stepping up and saying, “Okay, if you don’t give it to us, it falls against you. You’re obstructing our investigation, and we’re telling you that upfront. You’re going to make a choice, and you can say no, but that then we’re going to count that against you.” Which is really important. We’ll talk about Pompeo in a minute, but that’s also in the Pompeo letter.

Preet Bharara:              The other part of the letter that’s interesting that doesn’t have legal significance yet, but tells you what the committees are thinking and they’re putting it out there. It says to me, this was the most significant sentence in the cover letter, and it says, “Our inquiry includes an investigation of credible allegations that you,” meaning Rudy Giuliani, “you acted as an agent of the president in a scheme to advance his personal political interests by abusing the power of the Office of the President.” People keep asking, is Giuliani in jeopardy as well? What is the theory of the case against Giuliani? We don’t know yet, but this is a little bit of a grenade rolled across the threshold of Rudy Giuliani’s office.

Anne Milgram:             It also frankly reads like article one of the articles of impeachment a little bit that this is the allegation against the president, that he abused his office in concert with Rudy Giuliani and others. I read that, as this is the theme that Congress is going to explore and this is what it’s all going to come down to.

Preet Bharara:              Yeah. Separately from all that, I don’t think it’s of legal significance necessarily yet, but they do make reference to Rudy’s appearances on television. It makes specific reference to his appearance on CNN, when he was on with Chris Cuomo, Cuomo said, “You did ask Ukraine to look into Biden?” Remember Giuliani said-

Anne Milgram:             He said no at first, right?

Preet Bharara:              Yeah. He said, “Of course, I did.”

Chris Cuomo:                You did ask Ukraine to look into Joe Biden?

Rudy Giuliani:               Of course, I did.

Chris Cuomo:                You just said you didn’t.

Rudy Giuliani:               No, I didn’t ask him to look into Joe Biden. I asked him what the allegations that related to my client, which tangentially involved Joe Biden in a massive bribery scheme not unlike what you get in China.

Chris Cuomo:                Rudy.

Preet Bharara:              Damn right. I go to the code red. It’s another example like the President of things that he’s saying that can be used against him in court documents. Here’s where the lay of the land is, let’s discuss next what right or privilege Rudy Giuliani has, not a testimony. Now, the one thing he said that people play over and over again when he was on of the Sunday shows, when asked, are you going to cooperate with Adam Schiff before the subpoena was issued? He said, “No, I think Adam Schiff is an illegitimate chair of the committee,” he doesn’t like him very much and says, “he should resign” and then says, “I will not cooperate as long as it’s Adam Schiff.” As he often does. When asked, “Okay, so I guess you’re not going to cooperate?” He said, “I didn’t say that. I will consider it and it depends on what the president wants me to do.”

Anne Milgram:             I don’t know why, but when you were just saying it, it felt like, “I will not eat green eggs and ham.”

Preet Bharara:              Rudy, I am.

Anne Milgram:             I don’t know why that went through my head. Yeah, he basically, he’s got all kinds of excuses. Adam Schiff is not legitimate then wasn’t there something about it’s only issued by the Democrats on the committee, not by the full committee.

Preet Bharara:              It has to be done by the number, which is not how the Benghazi subpoenas worked. It’s not how it works.

Anne Milgram:             There’s just a lot of nonsense, and it’s a little bit of the throw everything up against the wall and see what sticks. What’s really fascinating about the Giuliani piece, and the TV piece in particular is that it really is part and parcel of this whole conversation because he’s been making a lot of statements on TV, including, he said in publications, “I’m not acting as the president’s lawyer, I’m acting on behalf of the government to like improve the Republic.” He said all kinds of things that really any defense he would have to try to… I personally don’t think we should break this down. I don’t think arguments of attorney-client privilege will work for a variety of reasons. There’s really, to me, no barrier to Giuliani being compelled to provide this information and to talk, but he’s going to come up with a series of different things that we should be expecting.

Preet Bharara:              Let’s focus on attorney-client privilege for a few minutes. One, as you point out in various contexts, he has said he wasn’t acting as the president’s lawyer and then you look at the things he’s done, and the things about which the subpoena asks, and I don’t understand what lawyer client interest was being vindicated. At a surface level, it looks like he was operating as like a fixer for the president, or a campaign operative for the president trying to help him in the campaign. There’s no legal case pending against Donald Trump with respect to what Rudy is doing that he’s trying to defend the president from.

Preet Bharara:              As an initial matter, just because someone happens to have a law license and has a conversation with somebody who was putatively the client that doesn’t shield everything that’s discussed from attorney-client privilege. If you decide to mow a guy’s lawn and have conversations about the mowing of the lawn, and you were also his lawyer, you can, depose the guy on the mowing of the lawn conversations in the contract there. This seems to be like that separate from his saying that he wasn’t acting as a lawyer.

Preet Bharara:              There’s also, by the way, his people keep pointing out there’s a crime fraud exception, even if he’s acting as a lawyer. If there’s some theory by which you can argue that there was a criminal conspiracy going on. I don’t know if that’s true, I think we’re way shy of that, but you can Pierce the privilege. Then there’s also the argument, and I don’t know how far this goes. I’m not an expert on this in the Congress, the congressional committees don’t recognize the attorney-client privilege.

Anne Milgram:             Right. They don’t because it’s not constitutional, the attorney-client privilege comes from common law, meaning it’s handed down by courts through cases. Congress has always said that they don’t honor the attorney-client privilege in part because it’s not a trial over your Liberty. Right? It’s just a totally different question. It’s an investigation by Congress, it’s not a criminal trial. A lot of the reasons that attorney-client privilege exists don’t exist here.

Anne Milgram:             Now I don’t think that means that Congress gives no deference to the attorney-client privilege because I think they’re going to try to be reasonable. In addition, to the fact that Congress doesn’t have to honor it, the points you made a really well taken Rudy is actually not acting like Donald Trump’s lawyer and attorneys can’t help clients commit fraud. There’s something else in addition to all this, which is that all of these public statements, you don’t get to selectively apply the attorney-client privilege. You can’t basically say, and by the way, we also saw this during the acting DNI’s testimony a little bit, the Joseph McGuire and executive privilege where he was trying to pick and choose what parts of it he was going to say or privilege. You don’t get to do that.

Preet Bharara:              You’re saying there’s a waiver.

Anne Milgram:             Yeah, there’s a waiver. Rudy, going up and talking about half of this stuff and being willing to answer questions on it, you then can keep the rest of it secret. Personally, I see no legal basis for Rudy to win on the attorney-client privilege question.

Preet Bharara:              There may be some other privileges, there’s a privileged, sometimes acknowledged, executive privilege, deliberative process privilege. Again, Rudy Giuliani is not a member of the United States government. he’s a free agent, private citizen. All those other privileges that you can argue about with respect to getting counsel from someone in the White House or at the Department of Justice or something else, don’t apply to him either.

Anne Milgram:             Right.

Preet Bharara:              Again, just something else, I still don’t know what Rudy Giuliani’s job is.

Anne Milgram:             Yeah. That’s a really important point because if Rudy Giuliani is a part of the government and working at the State Department, none of that is privileged, right?

Preet Bharara:              Right.

Anne Milgram:             He wants it both ways to both be a private lawyer and to be part of the government. I mean, he said, “I was instructed by the State Department, I got, I was working closely with the State Department.” That would never be privileged. You raise a really good point. I also am really concerned about his conflicts of interest. One of the things generally when you work for the government, you have one client and it’s really problematic to have multiple clients because you’re supposed to only put the interests of the United States Government forward. We know that Giuliani has represented other foreign governments. We know that he has been engaged with a host of different people he’s represented.

Anne Milgram:             I think there are also real questions of who does he represent? Who’s paying him? Who’s taking money? Just what is his role on this? One last point on the Giuliani subpoena, one thing that’s interesting about it is that there are few people that he works with, these people Igor Frauman, Lev Parnas, Vitaly Pruss, Sam Kislin, Joseph diGenova, Victoria Toensing. There are a number of people who are listed in the subpoena. It’s not just Giuliani, and it’s really important to recognize this that as an all things when you do a criminal investigation, it’s rarely just to people who are involved.

Anne Milgram:             The house has done a good job of saying we want to talk to everyone involved in the investigation, including everyone involved with Giuliani, everyone involved with the Ukrainian folks and everyone involved with the State Department. That matters because that’s where the dam breaks. That’s where people start to talk. People start to cooperate. I would argue that Giuliani is critically important for him to provide that information. It’s less important than people may initially think because there are a lot of people listed.

Preet Bharara:              What do you make of this issue? That’s not legal, it’s not about privilege but about appearance and strategy. Because, I keep hearing reports that are understandable that there’s some people on the Democratic side who think it will be, what’s the word? I hate to use this word because it’s family programming. If you have Giuliani come testify, it will be a shit show and it’s really hard to argue with him. He throws out a lot of misleading statements and he’s all over the place and he will talk over you. We see how he does it on the talk shows.

Preet Bharara:              There are some people who think that it won’t be great and you won’t advance the cause if he does agree to testify and sits in front of a committee, particularly given the nature of legislators questioning five minutes at a time. If they don’t have some, someone like Barry Berke, a practiced lawyer who knows how to ask questions. At the end of the day, they can bluff perhaps and they actually don’t want Rudy to testify but they just want the documents?

Anne Milgram:             That’s a great question. I think they’re starting in the right place with the documents and not with Rudy himself because the text messages, there’ll be two people on them and so you might want to get the other person in to say, “Hey, what else did you talk to Giuliani about?” You’ll be able to get a lot of evidence without actually having Rudy come in. To your point, I would assume and I think you would assume that he will come in and not be truthful, that he will do what he does on TV, which is spin excuse after excuse, story after story. If you have that, if you know that’s going to happen you need to have the evidence to be able to refute those stories.

Anne Milgram:             If he does testify, I would suggest that it’s at the end, not at the beginning. That the questioning be done by someone who actually knows how, like the Barry Berke is a great example and there are other people like him, people who know how to present questions. Because otherwise, it’s like giving another opportunity for somebody to go on cable news and just spout and say whatever he wants. The reality is if you’re at the end of the investigation, you should be able to say to Giuliani, “Did you have this conversation?” Just pin him down on the facts that you know, pin him down on what happened.

Anne Milgram:             You and I talk about this a lot, but it’s important to recognize, one of the things that members of Congress do terribly when they do in these interviews and these questions is that they want people to agree with their conclusions. People, fact witnesses, particularly people who are adverse to you or who don’t like what you’re doing are going to agree with facts, not with conclusions.

Anne Milgram:             This is one of those examples where it has to be tightly controlled the questioning, and it has to be fact, fact, fact. Then you draw the conclusion and Giuliani can say yes or no, at the end if you feel the need to do it. Really it’s too much trying to get Giuliani to agree with someone else’s worldview. As you said, who knows what worldview he’s going to come in with that day? It’s not going to be the one that is consistent necessarily with the evidence.

Preet Bharara:              I just want to digress for a moment because you just remind me of something, I don’t mean to call anyone out, but it’s really terrible. The example that came to mind when I was hearing you speak was Secretary of State Pompeo on the question. He was asked the question, not a bad question, about the call between President Trump and Zelensky. He’s asked the only thing about this.

Speaker 5:                    On the president’s July 25th call with the President of Ukraine. What we’ve learned in the last 24 hours is that Pompeo was actually on that call. What do you know about those conversations?

Mike Pompeo:              You just gave me a report about a I.C whistleblower complaint, none of which I’ve seen.

Preet Bharara:              He changed the question to be about the complaint by the whistleblower not about the phone call to which then, “Okay, well you don’t know anything about it.” That is not what he said. It’s not what he said. I get that people are complaining about Pompeo and that he was being too cute. Some people were suggesting he lie, he did not lie. He was not asked a sharp pointed question with a rigorous follow up. The followup should have been, wait a minute. I mean, we’ve talked about this a lot. I mean the level of frustration that we have at how members of Congress ask questions. In case members of, I don’t mean to sound very arrogant on our part, but it’s our podcast we can be. When you don’t get an answer to the question, if it’s a simple question, ask the same damn question again.

Preet Bharara:              Do you know anything about that phone call? He didn’t answer it. The next question should have been, do you know anything about that phone call? All he could say, were you listening to the phone call? Did you get a read out of the phone call? Did you talk to anybody about the phone call? What do you know about the phone call? Were you concerned about the phone call? Instead, they moved right on. The same thing has happened in questioning between members of Congress and Bill Burr, and it’s fun, I guess weeks and months later we’ll see on Cable Television a rerun of a particular question and in almost every case you find there’s not a lie. There’s weasel words, there’s evasiveness.

Anne Milgram:             Evasive is the right word.

Preet Bharara:              Again, obviously the person who is being evasive and being too cute for comfort is the person who blame worthy. If you’re really going to be trying to perform your oversight function well then you’ve got to get better at this.

Anne Milgram:             Yes, I could not agree more. I think Pompeo was evasive, I think he intentionally misled or at least he meant intentionally gave the impression that he was not aware. That’s what everyone took away from that conversation and that to me is deeply problematic. He’s an official of the United States government, but you are 100% right that there was a hugely missed opportunity. We’ve seen this repeatedly where the questions have to be asked, and they have to be answered, and they have to be asked again until the truth comes out.

Preet Bharara:              Chris Wallace on the Sunday show, Chris Wallace and Jake Tapper our colleague, I think both did an excellent job with very different and difficult and guests on the show. Chris Wallace was asking Stephen Miller repeatedly the same question, and it was given that the president has the State Department and the CIA and all these other government agencies and government personnel. Why is he using a personal lawyer to do these things? Stephen Miller tried to talk about something else. He said, “No, no, no. I’ve asked you a specific. Don’t talk to me about John Durham.”

Stephen Miller:             Is it not in the interest of all Americans to know what that is?

Chris Wallace:               We’re going to get to what the Biden’s at a minute, but I’ve asked you a specific question. I’d like a specific answer. The president has the State Department, he’s got the CIA, he’s got the Pentagon, he’s got a number of other agencies. Why did they use three private lawyers to get information on Biden from the Ukrainian government rather than go through all of the agencies of his government?

Stephen Miller:             Two different points, number one-

Chris Wallace:               How about answering my question?

Stephen Miller:             John Durham, as you know-

Chris Wallace:               Wait a minute, John Durham is investigating something completely different. Stephen, I’m asking you a direct question. Why did the president use private lawyers rather than go to agencies of his government?

Preet Bharara:              He would not answer the question and then Chris Wallace, he put an exclamation Mark on and says, “No, we don’t have an answer. We have your non answer.” Jake Tapper did the same thing with Jim Jordan.

Jim Jordan:                   Then, when the company that’s paying him that money is under investigation, guess what? Daddy comes running to the rescue. The Vice President of the United States comes running and say fire that processor.

Jake Tapper:                 That’s not what happened. The European union, the Obama administration, the international monetary.

Jim Jordan:                   You don’t think Joe-

Preet Bharara:              The Biden campaign decides to send a letter to the major networks asking them not to book Rudy anymore. They say, quote, “We are writing today with great concern that you continue to book Rudy Giuliani on your air to spread false debunked conspiracy theories on behalf of Donald Trump, blah blah, blah. Don’t give him airtime.” I’m going to say that was an error.

Anne Milgram:             I would agree with that very much. You and I have talked about this a lot, this in different context, but this felt to me like a couple things. First of all, you’re not going to convince cable. You’re not going to tell cable news what’s newsworthy and what isn’t number one.

Preet Bharara:              Increase to the bookings.

Anne Milgram:             Yes, yes, exactly. Number two, you’re drawing attention. You’re complaining about something that makes it look publicly as though you’re trying to create a fair fight in a way. The reality of this is that this is a presidential election. Joe Biden is entered into the arena, it’s a blood sport. As we know from American politics, it always has been, and this is I think extreme, but it looked like complaining and whining about something that is he right? There’s something that Biden is right on and I would have his press people call the networks. If I were him, I would have my press people call the networks all the time. If they don’t immediately fact-check and refute and say to Giuliani, “What’s your proof of that? What’s your proof of that?” Nobody should let him go on to lie. In fact, the networks themselves, if they know he’s lying, should do what Chris Wallace did or effective questioning. To say, don’t give him air time as part of this conversation. It just, it feels to me wrong and politically it looks like censorship. What did you think?

Preet Bharara:              I thought it was unwise politically optically, and you do what I think good folks and smart folks do in these circumstances is behind the scenes. When you see bad performance, and you see an anchor not fact-check or accept lies. If you think they are you, you call them up and you call up them, and you call up their boss, and you say, “Well, this is nonsense and why didn’t you do this, this way or that way?” The next time you do a better job or you arm them in advance, and you say, “Listen, you’re going to have Rudy on again tonight. Here’s the three false things he said yesterday. You should know this is why these are false, and we’re not going to be happy.”

Preet Bharara:              Again, they don’t have any authority over anchors. But, you know what? I still do believe that the best journalists on television and in print want to do a good job, don’t want to be taken advantage of, don’t want to be used and manipulated and exploited as mouth pieces for someone who’s telling lies. They will take that information in. I’m sure they’re doing that anyway, but you do just that. Then you counter by having your own people on, but a blanket request for him not to be booked. It also allows the worst thing that I think resulted from this. It allows Giuliani to play the victim card and say, “I’m being censored. They’re afraid of me. Didn’t want the truth to come out.” I don’t know, it’s bad all around.

Anne Milgram:             Well, one thing I’d say about the media is I do think they’re doing, there’s something that’s happening in this cycle that feels different to me than other cycles. Which have events and news, which is that there is a quicker move to rebut falsehoods and there’s a quicker move by the media to call out the administration on falsehoods. One good example is there was something in I think the Federalists that came out arguing that the inspector general had just changed their rules recently, as to whistleblowers and that it used to not allow hearsay, which is, a statement that you haven’t let’s say an out of court statement that is offered in court usually to prove the truth of what was said. It’s complicated in the law, it’s not worth spending a ton of time on other than say, that the rules were never changed. The rules have always been to allow whistleblowers to come in and offer either firsthand or secondhand information.

Anne Milgram:             What was great is that the inspector general, the intelligence community immediately came out and others immediately came out to say, that’s a lie. The rules have not been touched since May 2018 stop saying that. That was powerful because otherwise these things, sometimes the falsehoods get legs, and the media repeats them because nobody is rebutted them. It shouldn’t happen, the media should do a better job than that. That’s the reality of the world we live in. We’re seeing people immediately saying, “No, that’s not true.” I think it’s really important because it changes the conversation to be more focused on what truly happened versus almost propaganda, right? There’s-

Preet Bharara:              I would say not almost.

Anne Milgram:             Yeah. Right? I feel like reading and listening to cable news and both watching TV and reading things, this is the closest I can ever think of an administration in my lifetime. By the way, I’m sure people can tweet at me a million other examples.

Preet Bharara:              They’ll probably not.

Anne Milgram:             It really feels like propaganda and people are pushing certain narratives. There’s no quid pro quo, you can’t have hearsay. I mean, we could go through all of and rebut them one by one, but it really does feel like a concerted effort to change the conversation. To really distract from the underlying question of the president abuse his authority to push a foreign country to investigate his political rival.

Preet Bharara:              I have two reactions to that. One is, which I hadn’t thought of until you were talking about it. You look at the contrast between there’re different positions, but the contrast between two government officials, one, the special counsel, Robert Mueller and the other, the ICIG, the Inspector General of the Intelligence Community, both of whom are trying to do their job, they’re quiet folks. They’re not going on TV, but they see misstatements made and erroneous conclusions being bandied about on television about their work. Muller, by and large, kept his mouth shut. “No comment, no comment.” The IG puts out a multiple page rebuttal of this thing about hearsay with respect to whistleblower complaints, it’s a little bit different.

Preet Bharara:              I think when done within bounds and when not done in a showy way, and it’s done in a thorough, respectable manner. I think it’s helpful to the public debate. What do you think?

Anne Milgram:             I agree completely. It was because otherwise the administration again is framing the debate in the wrong way and making it about things that it’s not about. Look, they have every right to argue in their defense, but they were arguing something that’s an actual falsehood about the way that the intelligence committee inspector general operates. For him to come out, Michael Atkinson, the Inspector General, to come out and immediately say that’s false is hugely important. I agree completely that, again, it wasn’t showy, it wasn’t done in any type of political way. It was just a, “That’s not accurate. Here’s the way it works and has worked.” Then the facts are out there, which helps enormously for people in the media and members of the public to know, “That’s false.”

Preet Bharara:              My second reaction to what you were saying was, I think the larger question on the whistleblower is not this nonsense about the form, the complaint form, but all the deflection and misdirection and ridiculousness about hearsay. Put aside this is a whistleblower for a moment, in the United States of America every day in police departments and in U.S. attorney’s offices and in cases being done by the FBI and the DEA. Every agency on earth, including companies, people give tips and people call 911 and they say, “There’s a strange smell coming from the trunk of my neighbor’s car.” Depending on the circuit, that person could be a felon, that person might not be credible ultimately, that person is not going to be your key witness of trial when you’re trying to hold the neighbor accountable because it turns out there was a cadaver in the trunk.

Preet Bharara:              Law enforcement officials, if they didn’t take seriously based on other indicia of credibility, which were found here on the part of folks who may not have direct knowledge. Somebody is working at a bank, and they hear three other people at the bank say, “Well, I think the CEO of the bank is cooking the books. I think that’s happening.” There’re various reasons to believe that, that’s true. Yeah, that person can be a whistleblower. If he goes to the general council, the board of directors of the bank, they be idiots and stupid and remiss and negligent if they didn’t look into that.

Preet Bharara:              This whole business of attacking the whistleblower is a political attempt to defend something that they’re finding very, very hard otherwise to defend but doesn’t really matter. By the way, the other point to make on the ICIG’s rebuttal was not only just to be absolutely clear about this was not only that the statute doesn’t require direct knowledge. He said, “This whistleblower did have direct knowledge.” He checked both boxes, they checked the box saying with respect to some things, I have direct firsthand knowledge. With respect to other things, I have secondhand knowledge.

Anne Milgram:             Yes, I agree with that. One of the reasons I think that the whistleblower is so credible is that he was also forthright about that and saying upfront page one of the complaint, there’re some things I know myself, and some things I have second hand knowledge of. Now just high level on the whistleblower statute and why this is working exactly the way it’s supposed to work, is that it is very common for whistleblowers not to have firsthand knowledge, not to have access to the books you just described, not to have access to the president’s phone call. The nature of whistle blowing is that the whistleblower is giving information about a problem that they may not be fully read into. Right? Because the people that have access to the president’s call, for example, the whistleblower may not have access to it.

Anne Milgram:             The whole point is to be able to say, “I think there’s something wrong here. You should go investigate.” Then it’s up to the inspector general to go get the phone call to interview the witnesses, to figure out whether or not it’s credible. Just like in your example, it’s up to the police to go out, look what’s happening. Why is there a smell in the car? The cadavers freaked me out.

Preet Bharara:              Why? That totally happens.

Anne Milgram:             It does totally happen and it’s really important that the whistleblower to say that a whistleblower would need to have first hand knowledge of all wrongdoing would set it up so that it would never work, as a structural matter and it’s not intended to work the way that the president has suggested.

Preet Bharara:              Let me just say like to do sketch out the argument in the greatest fairness to the people who were supporting the president on this point is this, it is true that based on second hand information or hearsay information as the case may be that we don’t send someone to prison unless there’s an exception. By the way, there are also exceptions to this because you have the call itself, which is not hearsay. You have other admissions on the part of the person who is a target. It’s not hearsay, but I don’t want to get bogged down.

Preet Bharara:              Generally speaking, you want to have direct evidence before you convict someone and before you take serious action. That’s all fair. We’re not at that stage yet, they have decided to open an impeachment inquiry. There’s three things versus the impeachment inquiry, they made a decision to do that which is now endorsed by Nancy Pelosi. If and when they have sufficient evidence, which is what they’re gathering in connection with a subpoena to Rudy Giuliani and other things. Then eventually if they decide to repeat, which is basically the endorsement of an allegation, then there’s a trial in the Senate.

Preet Bharara:              Now, the semi legitimate accusation made by Trump supporters is on the strength of the whistleblower complaint alone or reports about the whistleblower complaint. Democrats went from zero to 60 on the impeachment inquiry.I think the argument still fails for a variety of reasons, but the most legitimate ones of them, the most responsible ones of them are saying, “I don’t really follow.” You have something, thin like this. We don’t know the credibility of the whistleblower ourselves. We don’t have other evidence yet. You all of a sudden decided to prejudge and go down the road of impeachment. That is not great.

Anne Milgram:             That’s also not the case. On its face, it makes a little bit of sense. I agree with you that they’re making it because they think that, that might appeal to people who initially would say, “Yeah, it’s just a reporting of a whistleblower without credible facts behind it. Why should we have an impeachment inquiry based on that?” That would be fair, but it’s not just that. It is the president’s phone call with the Ukrainian President Zelensky, it is the president’s admissions that he was on that call. It is subsequent reporting that the evidence of that call, the readout of that call was moved from one computer to another that was more secretive. Which appears to me to be consciousness of guilt, like you’re hiding something.

Anne Milgram:             It would be great and by the way, many criminal defendants would want to argue the same thing. We’ll just look at the first report that came through and say, “Well, that 911 call, they said, the smell…” I can’t keep this analogy, I’ll just go with it. Let’s say you get 911 call of wrongdoing at a location, and it turns out to have been at another location, and the police find wrongdoing. That doesn’t mean that that crime can’t be prosecuted just because, we’re going a little far from where I need to go.

Preet Bharara:              It happens all the time, that the initial tip.

Anne Milgram:             The tip here was right, but it wouldn’t matter if it wasn’t in some ways because you get to the underlying evidence so quickly and the underlying evidence is very clear.

Preet Bharara:              By the way, the other logical point that I’ve seen been made and needs to be made every single day, every hour of every day is to the extent Mr. Giuliani, Mr. Trump you’re saying you don’t want us to proceed to make decisions about impeachment on second hand information. Okay, understood. Then please don’t stand in the way of our getting firsthand information. Make sure you provide these documents that Rudy Giuliani brags about collecting. Make sure you give us access to these witnesses who actually were on the phone call and have the ability to both incriminate you and also exculpate you. You can’t on the one hand and just nonsense, every day it makes my head explode, more so than even in the past. To get on TV and beat the table every single minute and say “Second hand, second hand, second hand.” In the same breath when asked about getting firsthand information “Well can’t have that, there’s privilege, et cetera.” It’s nonsense. It’s BS. I think it should be called out every minute.

Anne Milgram:             That’s a great point. I would also say, just to be clear for people who are listening, because I think the hearsay is intended to confuse matters. This argument by the administration that there’s hearsay here and there. It should be very clear to everyone that the president’s phone call is not hearsay. The statements made by the president are not hearsay. Any allegation that there’s hearsay at the foundation of this conversation and at this inquiry, it’s just patently wrong. I almost don’t want to talk about it because I don’t want to give it air, but I think it’s important for us to address it. Remember also, this isn’t a criminal court right? That’s the other funny thing of-

Preet Bharara:              Hearsay doesn’t matter. Lindsey Graham erstwhile lawyer I think.

Anne Milgram:             Allegedly.

Preet Bharara:              Says things and just confused with the public. He makes proclamations like he says, “You can’t get a parking ticket.” I think you said this, “You can’t get a parking ticket on hearsay evidence in this country. I hope you can’t impeach a president based on it.”

Anne Milgram:             Which turns out to be not true.

Preet Bharara:              Well, one of the things that also happens to be true and he knows it, is that you can obtain in this country a federal criminal indictment against a citizen of the United States of America based on hearsay in the grand jury, which is a set of allegations just like impeachment would be. For those who want to be lawyers yet.

Anne Milgram:             At the trial, you can’t have hearsay.

Preet Bharara:              Of course.

Anne Milgram:             The charging instrument can have hearsay and always does, frankly in the federal government, almost always.

Preet Bharara:              It’s worth saying as a caution to the investigators and the folks on the Intel committee, the oversight committee and the judiciary committee, I do think it’s important to collect evidence that’s direct, which I think they’re doing. To overcome obstacles to getting that information and to getting that testimony. You can paint a picture that doesn’t come solely from the whistleblower, from other folks who talk about the phone calls, and we’re going to get to Australia and Italy in a second and convince people hopefully a little bit on a bipartisan basis that something nefarious happened here.

Preet Bharara:              I know that Nancy Pelosi and others want this to happen very, very, very quickly. There’s always a tension between speed and thoroughness and you have an added dimension here that you have in every criminal case because justice not only needs to be done, it needs to be seen to be done. Here especially when it’s a political process, you want people to not think it’s rushed. You want people to believe it’s focused and thorough and not prejudged in a way that some people I think can get over their skis politically and make it seem so. All the nonsense about the whistleblower is wrong, but note to the wise they need to be a little bit careful about it.

Preet Bharara:              Last point, the whistleblower, what do you think? The degree to which the President of the United States is seeking the identity of the whistleblower. Talking about both the whistleblower and the chair of the Intel committee as having maybe spied and committed treason, how dangerous is that?

Anne Milgram:             Let’s separate the whistleblower from Chairman Schiff for a second, and just focus on the whistleblower. It is beyond outrageous, I don’t even know if I have words to describe how awful I think it is that the President of the United States has publicly targeted the whistleblower and said, “We are trying to find the whistleblower’s identity.” Has said, “It’s like being a spy.” Has made all kinds of derogatory statements about the whistleblower being politically motivated with no basis for any of those allegations. The entire purpose of the whistleblower statute is to allow people to come forward in secrecy to provide this information to the Inspector General. The President, it’s not that he doesn’t understand it, he doesn’t care because someone is opposing him.

Anne Milgram:             What the president has done repeatedly is vilify people who disagree with him. Anyone who disagrees with him is corrupt, is wrong, is politically motivated, and it is part of this whole deep state conspiracy that the president argues. It is outrageous that the president has targeted the whistleblower. I don’t know how many ways I could possibly say this, but it is one of the things that I saw and you and I both seen a lot, and I think I’m not startled by a lot. This to me, it crosses such a fundamental line of what democracy, and the rule of law is about, which is that this is how the law is structured to put checks and balances into our government. The president again, is trying to eviscerate all of that.

Preet Bharara:              It’s going to be character assassination of the first order. The whistleblower statutes is supposed to protect a true whistleblower who by the way, in this case, didn’t link to the press crossed every T dotted every I, got the approval of the inspector general, of the intelligence community, an appointee of Donald Trump. At a minimum, he should not have to worry that the leader of the free world, the Commander in Chief goes on television and suggests maybe execution is the right consequence for his playing by the rules and doing the right thing as an exercise of conscience. It’s extraordinary, and it’s an abomination.

Anne Milgram:             Yeah. I mean, that’s what dictators do. It’s not what democratically elected president should be doing. Can we talk about Schiff for a second?

Preet Bharara:              Yeah. I have a lot of respect for Adam Schiff, and I do think, the reporting has been that it looks like Nancy Pelosi likes the idea of Adam Schiff and the Intel committee taking the lead. Maybe that makes sense on Ukraine because it’s an intelligence matter. This was all triggered by an ICIG, letter sent to Adam Schiff. I think that the thinking also is that for various reasons, given his abilities as a former prosecutor, it makes sense for him to be the point person on this, not the judiciary committee. Adam Schiff makes a few errors. He decided to engage in some exaggeration for effect at the hearing with McGuire. He prefaces his remarks by saying, “In not so many words, this is the essence of what the president communicates.”

Preet Bharara:              He’s signaling that he’s not quoting directly and then he says, mimicking the president. “I hear what you want. I have a favor I want from you though, and I’m going to say this only seven times, so you better listen good. I want you to make up dirt on my political opponent, understand lots of it.” It’s clear to an intelligent person I think, that he was trying to get to the core of what the president was intending to convey. You might argue that in summation, you might say, “Here’s what the board say.” You know what he meant. What he meant was this and boy, the minority members of the committee and the president himself, they’ve gone to town on Adam Schiff. Did he make a mistake?

Anne Milgram:             Yes. He made an enormous mistake. Two points, first of all, the president tweets out not long after. He gave the president a little bit of the high ground on this in a way that he should not have, right? Because the readout speaks for itself, he should have read the exact words. “The president tweets out on September 30th Rep Adam Schiff illegally made up a FAKE capital, all caps fake and terrible statement, pretended it to be mine as the most important part of my call to the Ukrainian president and read it aloud to Congress and the American people. It bore no relationship to what I said on the call. Arrest for treason?”

Preet Bharara:              Adam Schiff says a couple of things, mild exaggeration that he prefaces with this is in essence what the president was saying, arrest for treason?

Anne Milgram:             Right. The president and his team can lie without any repercussions or accountability, but Adam Schiff makes a misstatement. The president attack this quickly, and just to hone in on one thing you said, which is exactly what I wrote in my notes as I was reading this yesterday. It’s a summation statement that Adam Schiff made. What Schiff could have done in a trial is basically read the actual letter as an evidence and then say to the jury, “Ladies and gentlemen, you know exactly what the president was saying. What the president was saying is…” Then that sentence is fine because it’s Schiff’s version of, “This is how I hear it the president’s words, not this is what the president said.”

Anne Milgram:             My issue with this Preet is that, and I think you’re a bigger Adam Schiff fan than I am. I think he’s good, but I think he’s hyperbolic. He often exaggerates, he often goes too far when you see him on the Sunday shows. The truth is that the facts are dramatic enough. This is a great example where, and look, I think you’re right that he’s good. I personally think he gave them something to hit him on. When you’re doing this kind of stuff, you never do that.

Preet Bharara:              Here’s the reality, right? The Washington Post can write story after story, after story, perfectly reported, all confirmed by other outlets, confirmed by the government, the administration later. You make one error that you correct within an hour and Donald Trump weaponizes it. You just have to be really careful, it’s a cautionary tale going forward. Before we leave the whistleblower and this controversy, since we’re talking about the press, the New York Times has given a lot of identifying information about the whistleblower. It’s caused a lot of people to get upset. Some people are calling for the editor in chief of the New York Times, Dean Baquet to step down, people are canceling their subscriptions. I think it’s interesting question, right? What an elder can report.

Anne Milgram:             Do you think they should have reported it?

Preet Bharara:              Yeah. I err on the side of not doing that I believe in the first amendment. Given what’s at stake here and given how much the president is saying about this person, and how identifiable he may be or she may be. I think I’d err on the side of less.

Anne Milgram:             I agree.

Preet Bharara:              The report that he’s a CIA officer who was assigned to the White House. It’s a small universe of people. I mean, don’t you think it’s true that the Trump folks know who it is?

Anne Milgram:             Yes. I also think that the reason that the New York Times gave articulated for having released the information was to help the public judge the credibility of the whistleblower complaint. Now, I reject that completely. I don’t know if it’s intentionally false or if it’s just their justification to say the public deserves to see everything. I do not think the New York Times should have released that information, and their justification frankly doesn’t have merit because I don’t see any way in which it helps members of the American public. They already knew that the whistleblower was a member of the intelligence community. They eventually, at this point in time see both the whistleblower complaint. They see the readout.

Anne Milgram:             Words fail me. I mean, that just feels to me like that’s not going to help any American judge credibility in a way that warrants disclosing information, any information that the times would have given about the person’s gender and employment does not assist in a meaningful way, and the credibility determination. To me, and I understand that this may be a balancing test that the newspapers have to engage in under the first amendment and their feeling about transparency. This to me it puts in direct harm someone and the benefits are just in my view, not there.

Preet Bharara:              There are a lot of differences in this very famous example but maybe the biggest, most famous whistleblower of all time with regard to presidential scandal was deep throat, whose identity was kept secret by the Washington Post for 40 years until he died. It didn’t seem to affect the investigation or the impeachment inquiry did.

Anne Milgram:             That’s a great point. Yeah.

Preet Bharara:              Looking at the list of things to cover and one thing we’ve forgotten to talk about so far and it seems like a long time ago, but it’s one of the biggest explosive revelations from the complaint by the whistleblower is the fact that not only did this call take place between the president and the Ukrainian president, but that it was basically locked down in a special secret compartmented server. Not for reasons of classification according to the complainant, but because it was politically sensitive and would make the president look terrible and that maybe there are other calls like this.

Preet Bharara:              I have suggested and others have also, we’d like to see what the calls sound like with members of the Saudi Regime and with Vladimir Putin, which we now know by the way, the president has fought really, really hard. He took the translator’s notes from his conversation with Putin in Helsinki. He says a lot of weird things to Putin in context that no other president ever has, private conversations. Given what we know now about Ukraine and when we know about Australia, which we still haven’t gotten to. I think it stinks.

Anne Milgram:             Yes, I agree. It really, it was the biggest thing. There were a lot of things about the whistleblower complaint that were important. The biggest thing to jump out at me was this aspect of cover up. What is critically important is that as a rule these readouts, they’re memorandums of the call, those go into a secure server. It’s important, and there’s a great Washington Post op-ed by a member, a former member of the National Security staff and Senior Pentagon official woman named Kelly Magsamen who helped classify calls for two presidents.

Anne Milgram:             She writes, “At the White House abuse of the system is alarming.” She talks about the fact that the calls already go into a highly secret system, in what she writes is that, “Material up to “top secret” is stored on a highly secure classified computer system used by the National Security staff, not the code word server.” All the calls are classified, they can be classified up to top secret, which is an incredibly high level of classification. Those calls go into this standard server, that is routinely done. The fact that this call went into that server and then was removed and put into the code word server and the code word meaning you need a special code word to be able to get into it. What Kelly Magsamen says is that the code word status is reserved for the absolutely most sensitive subset of information within the top secret category.

Anne Milgram:             She writes that, “Moving it from one server to the other like this would be justified only if a president and foreign leader were discussing material so sensitive that intelligence officials with top secret clearance had to be read into access to it and unlikely prospect, even with our closest allies. Moving the memo to the code word server suggest Trump officials really did know the call was as bad as the president’s critics say it is.” That’s her writing, which is basically explaining that it is an extraordinary thing to move it from one server to the other. There’s no basis to have done that here. I think it’s enormously important when you think about consciousness of guilt.

Anne Milgram:             One of the things we talk about in criminal cases all the time is the number of steps someone takes. If someone drops a pen, was it intentional or accidental? It’s really hard to know. If somebody removed something, put something in a server and then someone later removes that, puts it into another server. That’s a lot of steps that are being taken to secret it from the eyes of a number of people. I think that’s among the most problematic things that we’ve seen.

Preet Bharara:              That’s all completely correct. The question will be what is the drumbeat of other phone calls? Because the administration’s conduct, Donald Trump’s conduct will likely not stand or fall based on the single phone call between him and the Ukrainian president. It’s a political process. You want to see more, and there’s a lot of patterns evidence emerging very quickly. It’s only been three days since the whistleblower complaint was unsealed. We hear about Australia and the New York Times, and in first sentence of an article published just a few days ago reads, “President Trump pushed the Australian Prime Minister during a recent telephone call to help Attorney General William P. Barr gather information for a justice department inquiry that Mr. Trump hopes we’ll discredit the Mueller investigation according to two American officials with knowledge of the call.” That’s significant among other reasons that people are being chatty now and other people may be are emboldened and coming forward. Maybe there’ll be more whistleblowers. I don’t know.

Preet Bharara:              A couple of questions arise from this. One is the fact that it turns out according to the Justice Department that Donald Trump made the call at William Barr’s request. I don’t know if the justice program put that out because they thought it made the president look better. It makes, I think everyone look worse. Then how does it compare to the Ukraine call?

Anne Milgram:             Let’s go back just for a second and remind listeners of what this investigation is that Barr is working on. Barr has tapped the Connecticut U.S. attorney, a guy named John Durham.

Preet Bharara:              John Durham.

Anne Milgram:             To basically investigate the investigators. To ask the question of, why the entire investigation into Russian interference in the 2016 election began? Really to ask the question of, was the FBI justified in opening up an investigation into Russia and into the President of the United States for obstruction of justice ultimately? They’re really trying to litigate the start of everything and to say it wasn’t justified for there to be… the FBI wasn’t justified to do this. Now that’s problematic on so many levels. First of all, Robert Mueller went on to find without question that the Russian government had hacked the Democratic National Committee and Clinton email servers that the Russian government had engaged in a social media campaign. That all of this was done on behalf of president then candidate Donald Trump in his favor and against Hillary Clinton.

Anne Milgram:             That is uncontroverted that through a long criminal investigation, there are hundreds of pages of the Mueller report. There are hundreds of pages of indictments against individuals who have been associated with the Russian Government and Russian Security Services. What Barr and the Connecticut U.S. Attorney are trying to do is basically go back and find fault with that initial thing. There’s no allegation that that was started for criminal purposes, right? That there was an intentional effort to discredit Donald Trump by opening the initial investigation into the Russians. I find it very problematic. I also find it deeply disturbing because the president talks about this all the time. It is one of his repeated political statements is that the investigation itself was not legitimate.

Preet Bharara:              It’s like what he’s doing with the whistleblower. If anyone has a temerity to look at anything with respect to him, or is it a reporter, a journalist who says something about him, even if it’s at his beloved Fox, they’re the devil. They’re the enemy of the people. They should be brought up on treason charges. He doesn’t mince words and that’s that.

Anne Milgram:             That’s what he’s doing. By the way, everyone who’s ever been convicted of a crime or arrested by the police or the FBI would like the investigators to be investigated. We should just say he’s not the first person who has been investigated to say, well someone who has been particularly found have engaged in some wrong doing even though, Mueller didn’t make the ultimate call. The Mueller report does set out a number of instances that are deeply problematic. In our view, I think both of us provide evidence of obstruction of justice.

Preet Bharara:              Right.

Anne Milgram:             He’s trying to undercut that. One of the things that’s weird about this before we even come back to this call is that both Barr and the president have spent so much time saying that the Mueller report exonerated the president.

Preet Bharara:              Why you need to undermine.

Anne Milgram:             Right. Why do you need to spend all this time and effort?

Preet Bharara:              That’s the other thing here to understand, it’s good that you’ve set the background. It is not an ordinary investigation, it’s not a standard mafia investigation or money laundering investigation of the kind that has no bearing on politics. This investigation with respect to which, Donald Trump was trying to get cooperation from the Australians is one that has deep personal political significance to the President of the United States. The way that’s different from but not that different from his deep personal interest in having Joe Biden investigated by the Ukrainian government.

Preet Bharara:              It’s not a garden variety case, they’re doing the same thing here that they’ve done with respect to the Ukraine call, which both distinguishes it, but also shows the similarity. They say on the Ukrainian call, the president cares about corruption. Broad concept, nothing wrong with that. President Obama, President Bush, President Reagan calls up another country with whom we have treaty obligations or trade and says, or with China for example, this happens all the time with China. China has bad people in the country and some people at the government level who engage in the theft of intellectual property. If you care about that, you say, You need to stop doing that.” If on the other hand you’re in the process of saying the general statement, you mentioned and also Joe Biden. “Why are you mentioning Joe Biden?” “No reason, no reason. I’m just about corruption.”

Preet Bharara:              The same thing here, it’s a particular investigation that the president is involved in and cares about because it will ignore to his benefit. He wants to discredit something and we’ve talked about that. That then goes to the question, was it inappropriate for President Trump to be calling the Australian prime minister? If you believe the spin, it can seem on its face, well, it is different from Ukraine because it’s not going after a political that you name like Joe Biden, but it is similar in the sense that you’re once again blurring the line between politics and law enforcement, between the justice department and the president. You have to know that it’s going to look a little bit bad. I’m actually dumbfounded that Bill Barr told the President to make this call. Apparently, maybe also made such a call to the Italian leader.

Anne Milgram:             Great Britain.

Preet Bharara:              Great Britain. Do these people learn nothing?

Anne Milgram:             I agree with you completely. I actually think that Australia and these other countries and Ukraine are far more similar than a lot of people in the media and even our colleagues who are former prosecutors are saying. I do think it is to the president’s political benefit. I think it is all about his personal politics and him wanting to refute every aspect of the Mueller report. I very much think that it is not a legitimate investigation, that the questions being asked or not. While it’s always fair to ask questions about the investigators, it feels to me like this is, there’s been no evidence put forward as a predicate of wrongdoing that’s sufficient to justify this investigation.

Anne Milgram:             To your point, and I think it’s worth just zeroing in on the Barr, Trump piece here, first of all, I’m not so sure I believe that Barr asked the president to call. Right?

Preet Bharara:              Really?

Anne Milgram:             Yes.

Preet Bharara:              Really? Because, that’s very interesting. Do you think he’s trying to save face for the president?

Anne Milgram:             I don’t know what’s going on between them. It’s like impossible to judge, but it feels very strange to me. You and I have talked about this before, but when you are the Attorney General of the United States, people take your call.

Preet Bharara:              They do.

Anne Milgram:             They do.

Preet Bharara:              They even would take my call.

Anne Milgram:             Yes. As a U.S. attorney.

Preet Bharara:              U.S. attorney.

Anne Milgram:             Exactly.

Preet Bharara:              Yes.

Anne Milgram:             The idea that Bill Barr needed the president’s political influence, I find that really difficult to believe. The second piece is that, I was a state AG, I was appointed politically by the governor. I was an independent officer when I did any type of investigations. Do you know how much I talked to the governor about him?

Preet Bharara:              How much?

Anne Milgram:             Zero. Zero, I would never, the idea that it’s a complete blurring of the lines between the law enforcement function and the political function.

Preet Bharara:              I’ll tell you what else happens, What I find interesting. Put the president aside for a moment. The fact that the attorney general himself appears to be in Italy to try to get cooperation on this investigation of the investigators, and he’s involving himself in these other things. Yeah, the attorney general can do things like that, but you make a decision about whether you delegate those things to career folks or not. In my time in office and maybe other people would be different, and it’s not necessarily illegitimate. Also, if you hire well, and you trust the people who are under you, you let them do the work. There were many high profile interviews of prominent politicians in New York. The four most powerful people in New York were all investigated my own at my office. Two of them were charged. Several of them were interviewed.

Preet Bharara:              I would have loved to be the person going into the conference room and personally as a United States attorney as might happen on billions and interview the individual, whether it’s the speaker of the assembly or somebody else. I didn’t, and I did it in part because I didn’t want to take the capstone part of the investigation away from a career prosecutor. I also thought that in retrospect to the extent someone could claim, and this wouldn’t be true, but someone could claim that I was acting politically or I had some kind of agenda. You took that argument away from them and you let the career people, which by the way you think is why they put John Durham in charge of the investigation.

Preet Bharara:              That’s the whole point. To have someone who is at arms length from the White House, who is at arms length from the attorney general even, who has a longstanding reputation for doing sensitive political investigations and doing them well and earning the respect of his colleagues and the public. You have John Durham, why the hell is the president calling Australia?

Anne Milgram:             Yeah, those are great points. The other piece to your point, and it’s worth addressing this because, I think to the extent our former colleagues are a little bit more forgiving of this. Part of it is that there does exist a department of justice process, the M-Lab process. We have mutual lateral assistance treaties with many other countries where a line prosecutor puts in a request and says, we want to interview this person, whether it’s in Italy, I did a lot of work through that process in Mexico. There’s an international office at the Department of Justice and they do a lot of this. They work with their counterparts in other countries and they figure out can we get access to people in other countries and can we get them interviewed?

Anne Milgram:             Now that process is not what’s happening here. It’s really important to note that yes, that’s a legitimate process. Both the attorney general of the United States, William Barr and the U.S. attorney for Connecticut are subverting that process. The question is why? That makes it look political. To your point, it makes it look biased. To your point, it’s impossible that it needs to get to this level unless there’s something else going on. I think we should be really suspicious about those conversations in those calls. I think frankly, the president should release all of these calls that we’re talking about at this point.

Preet Bharara:              He pledged transparency. I don’t know what you think about this argument, but the fact that they so quickly released the readout of the call and the whistleblower’s complaint and saying, we want to be transparent, and it was a perfect call. It makes it a little bit harder to throw up a roadblock later. Not legally harder, but I think politically a little bit harder. You don’t believe it even though that the department of justice specifically put out a statement saying that the president’s call was made at the behest of William Barr?

Anne Milgram:             It makes me sad to say that I would question the statement made by the United States Department of Justice. The short answer is yes, I am skeptical. That doesn’t mean it’s not accurate, but it doesn’t make sense to me that the Attorney General for the United States of America has to have the president call to get anything done on… It doesn’t make sense to me that the attorney general has to ask the President of the United States to call as part of this.

Preet Bharara:              All right, so here we are. We’re past an hour and we haven’t gotten everything because so much is happening. Just further to what we’ve been saying with Australia and Italy in the UK, I think we’re going to see a lot of shoes drop. We’ll be back next week to talk about those things, but we haven’t gotten a chance to talk about the reporting that the Trump administration continues to look at associates to Hillary Clinton with respect to how they used emails, retroactively classified information suggesting to a number of people who worked in the Obama State Department that they may have engaged in misconduct because of the emails. Even though as far as I can tell, the statute of limitations for any criminal case have long elapsed and it looks like lots of other things that go on here as purely vindictive and an obsession with Hillary Clinton and taking vengeance upon political adversaries.

Anne Milgram:             Yes, I agree. It’s also very clear that the emails were classified after they were sent and so they may be investigating why they weren’t classified upfront. It is deeply, deeply troubling and it does look like political retribution.

Preet Bharara:              The reason these things all look like political retribution. It’s not like, two former prosecutors sitting here pontificating, it’s because the president on a daily basis talks about retaliation. In the instant case of the whistleblower says that person should maybe be brought up on treason charges. It’s not outlandish to think these other things that are happening, are happening at the behest of the president who bent on retaliation.

Anne Milgram:             I would like to know why, it appears that there had been some movement. There are about 130 employees of the State Department, it’s a lot of people. It looks like there have been some questions asked of those folks and then it stalled and was and brought back to life in August. I would like to know who brought that back to life and what conversations triggered that?

Preet Bharara:              We should get that call too. It’s amazing to me that we’ve gone this long and we haven’t talked about something that I think is a hugely significant thing but gets lost in the mess of other hugely significant things. That is if you believe the reporting of the New York Times, the head of the embattled Head of the NRA, Wayne LaPierre met with the President of United States to talk about whether the NRA could help with the president’s anti impeachment effort if the president laid off these gun regulations that had been talking about. The first sentence of the articles says, “President Trump met in the White House on Friday with Wayne LaPierre the Chief Executive of the National Rifle Association and discuss perspective gun legislation and whether the NRA could provide support for the president as he faces impeachment in a more difficult reelection campaign according to people familiar with the meeting.” What’s up with that?

Anne Milgram:             As I was reading all of the articles about this, I kept thinking quid pro quo. There’s been a lot of conversation about I’ll do this in exchange for that. It certainly, it looks deeply problematic. It’s also just a question of LaPierre is embattled for many reasons and there’ve been a number… I mean, just a mass number of resignations from the NRA board.

Anne Milgram:             It’s very strange to me that the president would take the meeting at this time and it’s a very political meeting as I guess what I would say. I think you’re right to say that it appears that the president is very focused on getting support and assistance on the impeachment questions. We need to know more, and I would like there to be a fuller account of this conversation but it certainly, if it turned out to be true that the president was trading support or lack of support for gun measures, for assistance with the impeachment fight, that would be deeply troubling and problematic.

Preet Bharara:              Do you think we have enough reporters, enough journalists to be looking at all this?

Anne Milgram:             God, I don’t know.

Preet Bharara:              There were so many shoes that dropped. We wanted to get through all these issues. I think it’s important for us to I think explore a little bit more deeply how the impeachment inquiry should unfold, how it likely will unfold, how broad it should be, how narrow it should be, which witnesses should be called, how quickly they should do it. Next week, we’ll try to do that in a little bit more depth.

Anne Milgram:             Thanks for everyone for sending your questions in. It helps us figure out what topics to address and how to think about the many pieces of news that are coming across our desk.

Preet Bharara:              Keep sending us your questions to [email protected]

Anne Milgram:             We’ll do our best to answer them. Bye Preet.

Preet Bharara:              Bye Anne.

Anne Milgram:             Later skater.

Speaker 11:                  This is the CAFE Insider Podcast, your hosts are Preet Bharara and Anne Milgram. The executive producer is Tamara Sepper, the senior producer is Aaron Dalton and the CAFE team is Carla Pierini, Julia Doyle, Calvin Lord, David Kurlander and Jeff Eisenman. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.

Anne Milgram:             The nature of whistle blowing is that you’re blowing on the whistle. Sorry, how do I do that?

Preet Bharara:              I say keep that. I think the term used to be whistle on blowing. Then, they changed it to whistleblower.

Anne Milgram:             The nature of whistle blowing.


Stay in the Know

Get the CAFE Brief - which includes analytical essays by former SDNY organized crime chief Elie Honig, a concise recap of the week’s biggest legal stories, historical look-backs that help inform the present moment, and a roundup of the week's content at CAFE.

Thanks For Joining Us!

As a member of the CAFE community, you'll get occasional updates on promotions, live events, and new content. You can always update your email preferences in our preference center

An error occurred while processing your email. If this persists please email us at: [email protected]

Insider Podcast

CAFE Insider 10/1: Impeachment Momentum