• Show Notes
  • Transcript

In this episode of CAFE Insider, “Don’t Spare the Rod,” Preet and Anne break down former Deputy Attorney General Rod Rosenstein’s involvement in the Trump administration’s child separation policy at the US-Mexico border, the vice presidential debate, Amy Coney Barrett’s Supreme Court confirmation hearing, the foiled plot to kidnap Michigan Governor Gretchen Whitmer, and more.

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

DEBATES

“October 15 Presidential Debate Will Not Proceed,” Commission on Presidential Debates statement, 10/9/20

“Susan Page responds to debate critics: ‘The refusal to answer a question, I thought, could be telling,’” WaPo, 10/8/20 

The Hill tweet, fly lands on VP Pence’s head, 10/7/20

VIDEO: Pence and Harris address coronavirus response at VP debate, 10/7/20

AMY CONEY BARRETT CONFIRMATION HEARING

“The Senate Judiciary Hearings Could Be Amy Coney Barrett’s Second Superspreader Event,” Mother Jones, 10/12/20

“The Latest: Senate panel schedules 1st Barrett vote Thursday,” AP, 10/12/20

“Biden Says He’s ‘Not A Fan’ Of Expanding The Supreme Court,” NPR, 10/13/20

“The Case for Shrinking the Supreme Court,” National Review, 10/19/16

“‘Let me tell you a political secret …’ Klobuchar blasts hearing,” CNN, 10/12/20

VIDEO: Amy Coney Barrett’s opening statement, 10/12/20

VIDEO: Mitch McConnell laughs about stopping Obama hiring judges, allowing Trump to fill courts with conservatives, 12/13/19

ROD ROSENSTEIN

“‘We Need to Take Away Children,’ No Matter How Young, Justice Dept. Officials Said,” NYT, 10/6/20

Rod Rosenstein tweet, 10/9/20

Preet Bharara tweet, 10/10/20

“Restoring Public Faith in the FBI,” Rod Rosenstein memo, 5/9/17

Deputy AG Rod Rosenstein resignation letter, 4/29/19

“‘I can land the plane’: How Rosenstein tried to mollify Trump, protect Mueller and save his job,” WaPo, 4/26/19

“What James Comey Told Me About Donald Trump,” Lawfare, 5/18/17

“William Barr by Rod Rosenstein,” TIME100, 2019

True Crimes and Misdemeanors by Jeffrey Toobin, 2020

GOV. GRETCHEN WHITMER KIDNAPPING SCHEME

18 U.S. Code §1201. Kidnapping

MCL 750.543k Providing material support for terrorist acts or soliciting material support for terrorism as felonies; penalty.

MCL 750.411u Associate or member of gang; commission or attempt to commit felony; membership in gang as motive, means, or opportunity; penalty; definitions; consecutive sentence.

MCL 750.227b Carrying or possessing firearm when committing or attempting to commit felony; carrying or possessing pneumatic gun; exception; “law enforcement officer” defined.

United States v. Adam Fox, Barry Croft, Ty Garbin, Kaleb Franks, Daniel Harris, and Brandon Caserta, criminal complaint, 10/6/20

“Six Arrested on Federal Charge of Conspiracy to Kidnap the Governor of Michigan,” DOJ, 10/8/20

AG Nessel Charges 7 under Michigan’s Anti-Terrorism Act as Part of Massive Joint Law Enforcement Investigation, MI AG, 10/8/20

“Gretchen Whitmer: I will hold the president accountable for endangering and dividing America,” WaPo Op-ed, 10/9/20

President Trump tweets, 10/8/20

President Trump tweet, “LIBERATE MICHIGAN!” 4/17/20

Preet Bharara:

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

Anne Milgram:

And I’m Anne Milgram.

Preet Bharara:

How are you? 21 days.

Anne Milgram:

21 days. I can’t believe it. I have not yet got my absentee mail in ballot in New York State. But I’m also thinking about voting in the election booth. So, I’m okay. But I don’t know if you saw this morning the lines that early voting opened in some states and the lines were hours long. People are getting out to vote [crosstalk 00:00:28].

Preet Bharara:

Well, in certain counties in Georgia, especially. Yeah.

Anne Milgram:

Yeah, something like 10 million people have already voted. But everybody’s got to make a plan to vote, you have to have a backup plan. And I hope everybody’s geared up for the election.

Preet Bharara:

So, a lot happened in the last week. And we say this, at least off air if not on every week. And that is by the time we get to Tuesday morning and taping some of the stuff that seemed like gigantic news and was gigantic news has a little bit faded from memory. So, among the things that happened last week was there was a vice presidential debate.

Anne Milgram:

That’s right.

Preet Bharara:

Does anyone even remember that other than the fly?

Anne Milgram:

The fly has taken on a life of its own for sure. I mean, I don’t know what you thought. Look, I thought it was a million times better than the presidential debate. I thought the moderator, and not to blame the moderator for everything. But I thought she tried to do a better job. She asked serious questions. But I did think the vice president did talk over time repeatedly. And I did just have this moment of thinking, we really need a parent of a young child to be the debate moderator because she was saying, “Thank you, Mr. Vice President,” to get him to stop. But it’s like your child is doing something they shouldn’t do. If you say thank you the takeaway is like, “Oh, you’re welcome. I’ll keep doing what I’m doing.” And so, I just had this moment of like-

Preet Bharara:

Guys don’t get it.

Anne Milgram:

Yeah. Why can nobody just take a stand? Short of turning off a microphone I think there’s a lot that she could have done. So, I was disappointed in that. But overall, I thought it was substantive. You could really see the differences between the candidates. Look, I think there were a lot of things that I think the vice president just couldn’t defend. I mean, he never… People talk a lot about the questions he didn’t answer, like the peaceful transfer of power, which, of course, sticks out. I was also just taken by the fact that he cannot answer the question of why the United States by comparison is doing so much worse than all the other developed nations in their response to COVID-19. It was, I think, the first or second question of the debate, and it just stayed with me.

Susan Page:

Why is the US death toll as a percentage of our population higher than that of almost every other wealthy country?

Mike Pence:

Our nation has gone through a very challenging time this year. But I want the American people to know that from the very first day President Donald Trump has put the health of America first.

Anne Milgram:

What do you think of the debate?

Preet Bharara:

So, yeah, I didn’t want to stick a knife in my eye as badly as I did during the presidential debate. And mercifully, I think we’re going to be spared the second debate, although I think Trump is sort of wimped out on that. What I find interesting about the debate was the reaction of people watching. And obviously, I thought Kamala did a great job. I thought she was very good and very smart, and very patient. If you like Kamala you thought she did great. If you like Pence you thought he did great. But people on the other side, I saw comments from people saying that Kamala Harris was terrible, horrible. There were lots of unprintable pejoratives used about her. And in the universe that I live in, I just don’t see it. I can understand-

Anne Milgram:

I didn’t see it neither.

Preet Bharara:

… how you don’t agree with her. I can understand… Yeah, I can understand how you disagree. And maybe you don’t like her policies. But objectively speaking, she did not crash and burn. So, I don’t know what’s going on there. There’s some sort of implicit bias. Ben Shapiro posted something where he said she’s losing it, she’s getting crushed. I don’t know. I didn’t see that. Maybe I have my own bias.

Anne Milgram:

I actually thought the opposite. Look, maybe I have my own biases, too. But I thought she was far more… She was just making logical arguments, sort of answer one, answer two, answer three, it felt much more methodical. Look, there were questions that they both didn’t answer. And so, I think some of the media criticism afterwards toward her was she didn’t answer the court packing question, and we’ll talk about that in a minute. But overall, I thought she answered a lot more than the vice president did. She was very articulate. And I thought her tone was, if anything, I think a lot of people said this. There were a couple of opportunities where she could have just really gone after the vice president, and I personally believe she knew how to do it. She just chose not to do it to sort of I don’t know if take the high road is the right way to say it, but to just leave a couple of things out there that I thought were just softballs that she could have hit out of the park. But anyway, I was stunned by that too.

Anne Milgram:

I think, I’ll tell you one other thing I was stun by, Preet. She and I did not overlap. I was a one of I think six or seven female AGs in the country before she became the California AG. I’ve met her many times at the annual women’s AG dinner. One of the things that is really clear is that the electorate has, and I think this is even true after 2016. There is a bias against women. There’s a lot of polling that shows a man and woman can say exactly the same thing. And women are found to be less convincing and less credible by 10 polling percentage points, by just a huge margin.

Anne Milgram:

And part of it is I think we’ve socialized kids and people to think of political leaders as men. But there was even the day before there was a lot of this sort of, well, I hope she’s not too aggressive thing. And it just made me angry. It’s like, look, 210,000 people are dead. She’s allowed to be angry and to call the administration incompetent. And this idea of women have to act differently just felt to me played out a little bit in the comments we saw from some folks after.

Preet Bharara:

So, some people on the Pence side have suggested that Michael Pence really speaks to suburban women. That he has some bond with suburban women that kind of like him in a special way. So, at the moment, Anne, you’re a suburban woman. Did you feel-

Anne Milgram:

I have been on and off lately.

Preet Bharara:

Did you feel the fire? Did you feel the fire when Mike Pence spoke?

Anne Milgram:

Well, let me just say one thing that recently on a Saturday morning I took our six year old to soccer practice, socially distant style. I had my lawn chair set up at the end of the field by myself, and I was like, wow, I am for the moment a very suburban mom. So, I feel I speak for all soccer moms. Look, one thing I’ll tell you about Mike Pence, and you and I had talked about this. He’s a good debater. He has… We’ve talked about the president lacking shame. The vice president also lacks shame. He said some things that were just blatantly lies, and he said them with a straight face. And he said them artfully. And he spun them in his way. I think people maybe see what they want to see. So-

Preet Bharara:

Have you ever had a fly in your head for two minutes and not notice?

Anne Milgram:

No, but do you think it was… Has anyone explained was it… I mean, he had a lot of hairspray on his hair. I don’t know.

Preet Bharara:

Do you think the fly was trapped? Maybe.

Anne Milgram:

I don’t know. But I did like the thing that went viral with a picture of Justice Ginsburg saying, “I sent the fly.”

Preet Bharara:

I sent the fly. Moving on to the next debate, which was supposed to be Thursday. I got to tell you, I’ve watched every single presidential debate, I believe, except for one going back 20, 25 years.

Anne Milgram:

Why did you miss the one?

Preet Bharara:

So, I missed the first Obama Romney debate in 2012, and I’m glad I did because as everyone has said, and I’ve never got back to watch it, Obama got his clock cleaned. I had an event. I had a speaking engagement that evening. And I’ll never forget that I kept getting… I was a US attorney at the time ending the first term. And I kept getting emails and texts from people telling me to work on my resume because Obama was going to lose based on that debate. So, I look forward to debates. I think you did learn something about the candidates.

Anne Milgram:

Do you think they matter?

Preet Bharara:

Maybe not. But the point I was going to make is, I am not disappointed that there’s no debate this Thursday.

Anne Milgram:

Me neither.

Preet Bharara:

I’m happy-

Anne Milgram:

Yeah.

Preet Bharara:

… that don’t have to be subjected to that. Is that bad? Is it bad to start to think it’s good that there’s no debate?

Anne Milgram:

Well, but you I think you would want there to be a debate if it was a real conversation where there were two people standing up there presenting different visions for our country. I think I always watch them. The Trump Biden debate was completely different. And I think it’s fair to say I agree with the pundits who said we all lost that night. It was a bad night. And I think Biden by far was more credible. I thought he was far more appropriate and presidential. And look, I actually think if you look at some of the polling there is a sense that with independence that a lot of people didn’t like the president’s attitude, his performance, his bullying, it was over the line. And I think people do judge a lot based on stuff like that as opposed to what the policies are. And so, in some ways, maybe it was important, but I for one, I’m good to miss this week’s debate.

Anne Milgram:

I will also say this, though, it is cowardly of the president not to be willing to get on a Zoom town hall with the vice president for a debate. I mean, we send our kids, a lot of people are sending their kids to school on Zoom right now. And it’s like, it’s good enough for our kids, but not good enough for the president of the United States. It makes no sense to me other than just he did badly. People have told him he did badly. There’s a lot of pressure surrounding a debate and he doesn’t want to do it.

Preet Bharara:

I think the much, much better comparison, Anne, with all due respect is the fact that we do this podcast remotely. And if we can do this very, very important public service, podcast-

Anne Milgram:

Without seeing each other.

Preet Bharara:

Without seeing each other in the studio. It’ll be coming on eight months. You can debate that way too. And by the way, you have a lot of people saying a historical things. I learned some things about history myself, and try not to make blanket statements without knowing what the facts are. But you have some Trump people going on air. I think it’s one of his sons said debate should be in person, otherwise, it’s not really a debate. That’s the way that we’ve done this for 200 years. The first televised presidential debate was Nixon Kennedy in 1960. We had three debates. The third debate, they were remote. One was on the East Coast, one was on the west coast.

Anne Milgram:

Look, don’t let history hold you back, Preet.

Preet Bharara:

Yeah. I know. So, I have something else going on as we speak, and maybe there’ll be more developments as Tuesday rolls on. We’re recording this, Anne, and I in the 10:00 AM hour on Tuesday, October 13th. Amy Coney Barrett has her confirmation hearing. So, I presume you watch some of yesterday.

Anne Milgram:

I did.

Preet Bharara:

The opening statements. I was present for two Supreme Court confirmation hearings, Alito and Roberts. Anyone had a hand in drafting the opening statement for my boss at the time, Senator Schumer. But I will say 22 senators, and then three more people to introduce the nominee all droning on giving their five minutes and some people going longer. I don’t know how necessary that is. Did we learn anything yesterday?

Anne Milgram:

I found it to be pretty painful. And look, I think these are also really important processes. There’s something I also wanted to ask you, which is that one of the main arguments that the Democrats were making yesterday’s how unsafe it is to be holding a hearing in the Senate Judiciary Committee in person at this moment in time, which feels to me absolutely true. It also feels to me… I just wasn’t sure if that’s the main thing you should be spending your time on when you’re… There’s a way in which the Democrats could have said we’re not going to show up. We don’t think this is safe. I don’t know. Was that effective to you? I was sort of sitting there feeling like there were almost two conversations going on or three. One is, is it fair that the President has nominated and the Senate is going to ram through this nomination? Two, obviously her qualifications to be a justice, and three, this sort of Coronavirus piece?

Preet Bharara:

Well, and four related to that was healthcare. I mean, the one thing talking to some people who are working on that, on the Democratic side, the one thing they said was they’re all on message. I mean, you and I have seen hearings where you have one senator saying one thing, another senator making a different point. Every single one came armed with a story or an anecdote about someone who would lose out if the ACA were thrown out. So they all had those stories. On the safety point I thought it was a little odd that of the two Republican Senate Judiciary members who contracted Coronavirus and publicly revealed that, Mike Lee and Tom Tillis. Mike Lee actually showed up in the hearing room and did not wear a mask when he spoke. I couldn’t tell quite how far away other people were. Tom Tillis participated remotely. And then Ted Cruz, who was in the vicinity of people who were at that super spreader event participated remotely too. So, it was a weird thing.

Preet Bharara:

I’ll say in response to your question about what the Democrats might be able to do. I thought one of the most significant statements made in all of the speeches yesterday, Monday, was from Senator Amy Klobuchar, who said almost as an aside, but it was a poignant moment. She said, “Look, there’s there’s no clever ploy that we have to stop this nomination unless we persuade people, persuade some Republicans to switch their votes.” That to me seemed like a pretty gigantic concession.

Anne Milgram:

Yeah. Look, a lot of it felt a little bit defeatist to me as well. A lot of it felt to me like this train has left the station. But I guess I would argue a couple of things. I mean, first of all, you had Mitch McConnell on Fox News talking about how Obama left a lot of vacancies during the last two years of his term.

Speaker 5:

So, I was shocked that the former President Obama left so many vacancies and didn’t try to fill those positions.

Mitch McConnell:

I’ll tell you why, I was in charge of what we did the last two years of the Obama administration.

Speaker 5:

And I will give you full credit for that. And by the way, take a bow. All right, that was a good line.

Anne Milgram:

He was very clear in saying I was in control at the time. And I basically held those vacancies for the next president. And because I was betting on it being a Republican it was, and I’ve now worked like crazy to fill those vacancies, and that’s exactly what’s happening here. So, I think it’s really important to push continually the fundamental fairness question because there is no fundamental fairness here. It’s stunning to me. It’s 10 million people have now voted. It’s really… It’s unjust in a way, and look, if they’d seated Merrick Garland I think we could argue where that line is. But because they didn’t seat him, I think it’s very clear that this is just about raw power.

Anne Milgram:

It’s almost like conceding that the bully who takes half your lunch in the lunchroom that you might as well give him the other half of your sandwich because he’s bigger and he’s stronger, and he has the power to take it anyway. It’s like, there’s something so… It’s making me angry to watch it. And so, but I do think your overall analysis of Klobuchar is right. I also did think she was effective. And I think, look, the healthcare thing is real. The court’s about to rule on healthcare. And so, I think one of the topics of conversation has to be what impact this is going to have.

Preet Bharara:

When you saw Mitch McConnell on Fox News, did you notice what he did as he was boasting that he blocked all those Obama judges?

Anne Milgram:

The laughter. [crosstalk 00:15:48]. Maybe we should… It sounded like one of Diego’s cartoons.

Speaker 5:

And I will give you full credit for that. And by the way-

Preet Bharara:

Well, I’m going to use a verb that I don’t think I’ve ever used in real life with anyone. I wouldn’t say laugh. I think he chortled.

Anne Milgram:

I was going to say cackled.

Preet Bharara:

Have you ever used chortled.

Anne Milgram:

A chortle.

Preet Bharara:

Now that I say the word. Is that a real-

Anne Milgram:

Yeah, it’s a word.

Preet Bharara:

Is that an actual English word?

Anne Milgram:

Yes.

Preet Bharara:

Chortle. I think that word was made from Mitch McConnell.

Anne Milgram:

It really is. It was such a boastful, proud moment of trampling on fairness. It just struck me as he had no humility about it. And actually, we should just say this. I think it was Sean Hannity basically said he was talking about… He was framing it as Obama’s failure to get judges confirmed. And McConnell was like, “No, no, no, Obama didn’t fail. I won. And because I won Obama failed, but don’t give him the blame. Give me the credit.” It was just so… yeah, it was stunning.

Preet Bharara:

Yeah, speaking of unfairness, there’s even a more dramatic particular procedural unfairness that Chairman Lindsey Graham is going to work on the process. This is already a very accelerated process. Maybe not if you go back to the founding of the union. But in recent times, in modern history, this is an incredibly fast confirmation process. They were doing the opening statements on what for many people is a holiday yesterday, Monday, October 12th. Ordinarily, you go through the confirmation hearing, four days of hearings, typically in the modern era.

Preet Bharara:

Then the following week on a Thursday they have in the Senate Judiciary Committee what’s known as a markup. People have time to review the transcript and reflect and consider their thoughts. And they then assemble in the Judiciary Committee hearing room, and they vote in what’s called a markup. And if the Democrats want to delay the vote they can. Republicans if the shoe is on the other foot. But you wait until the hearing is over before you have a committee vote. Lindsey Graham has scheduled for this Thursday morning before the hearings will even be over an initial vote on Amy Coney Barrett. Maybe this is a little bit inside baseball. The people I know who are working on the Judiciary Committee, their heads are exploding.

Anne Milgram:

It’s astonishing. Well, just [crosstalk 00:18:00]-

Preet Bharara:

Because you’re having a vote before it’s over.

Anne Milgram:

Yeah. It makes it clear that this is all pretend. Again, Graham has decided they have the votes, they’re going to do it, and it doesn’t matter. And it’s basically saying, you’re going to vote before you hear the outside folks weigh in on her nomination. It’s bad. I mean, it’s just a lack of respect for the process, for the Senate, for the Judiciary Committee. I’m not surprised by it. I don’t know if… I know a lot of folks on the hill just assumed it wouldn’t happen like it’s happening, but sitting here as an outsider, it doesn’t surprise me. Does it surprise you?

Preet Bharara:

No, nothing surprises me anymore. Look, I mean, the president has been suggesting, why not do away with the hearings? Because the Democrats don’t really seem to like them anyway, and go straight to the floor. And that’s one reason why Democrats are maybe showing up because they want to get some message across. And they don’t want to give Graham and McConnell an excuse to short circuit the process even more. I get it. It’s a kind of a lose-lose proposition because Republicans have the votes. So, to borrow a phrase it is what it is.

Anne Milgram:

Can I ask a question, also, Preet? One of the core… And we haven’t seen the full hearing. It’s just really getting started. But in her opening statement, Amy Coney Barrett told the Senate that-

Amy Coney Barrett:

Policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people. The public should not expect courts to do so and courts should not try.

Anne Milgram:

And I wonder what you think of that because I agree generally, but it really depends on the level of the court. There are three levels of courts, federal courts in our country. There’s the district court that tries cases. Then there’s the appellate court that you can appeal issues of law that are decided during trials and by the trial court. Then there’s the United States Supreme Court, and their job is to interpret the laws of the land, and in so doing, they frequently make policy. I mean, most other courts I think you would argue trial courts should be following existing case law and laws, but appellate courts often there are disputes over what laws mean. And the courts have to make decisions and whether or not they set out to make policy or not. Whether or not it’s intentional, the Supreme Court in particular is often… They’re just often pulled into these critically important debates where there is either insufficient precedent, or there’s an open question of law. And in making decisions, they always make policy. I mean, I don’t know what your take is on it. I’m really jarred by it.

Preet Bharara:

Yeah, I don’t have the same reaction to it. I thought it was a pretty anodyne statement of judicial philosophy that many people would agree with whether it is true in practice in every instance or not. I think it’s the kind of statement that a Democratic appointed judge would make, or Republican appointed judge would make that as a general matter. Remember she said try. Try not to make policy. She didn’t say never make policy, which is an interesting caveat. That as a general matter, it is a principle that is at least stated if not fully believed in by both conservatives and progressives that judges are there to decide cases and controversies, not to make policy, and not to have an agenda.

Anne Milgram:

Well, it certainly, I guess, it comes down to a question of intent. Maybe it comes down to a question of intent. But at the end of the day, the Supreme Court does make policy and everyone should be clear. It’s a little like Roberts. That famous line of judges should be umpires calling the balls and strikes.

Preet Bharara:

Balls and strikes. Yeah.

Anne Milgram:

And yet, the reality of being a judge is not that. And so, particularly being a Supreme Court judge. Maybe we could argue being a trial court judge is just that. There’s a lot of you’re following existing laws and cases that the Supreme Court and circuit courts have handed down, but it just feels weird to me that we’ve established that the Supreme Court of the United States gets to decide what the law is. It’s the one court where that decision gets made. And that’s why it’s so important. And that’s why President Trump is pushing to get Barrett through and that’s why McConnell is pushing to get her on the court. So, it felt… Look, you’re right. Would any Democratic nominee have said it? Probably.

Anne Milgram:

But it’s a sign in a way in which the language around the nominations, it’s all… It feels very poll tested. And they’re trying to say what they think the public wants to hear. And it’s almost a charade of what the truth of this appointment is, and will be. I don’t know, there was just something about it. She’s putting herself up as somebody who’s just a neutral arbiter of the law, whereas she of all the folks coming on the bench, as much as I think anyone we’ve seen has a very clear record has spoken publicly about her view that precedent doesn’t always hold and shouldn’t be sacrosanct. And her feelings against Roe, against Roberts ruling in the Affordable Care Act. So I think in some ways it’s like she’s done all that. And instead of fighting on that framing, she’s decided to reframe it as like, “Look, I’m this neutral judge and arbiter.” And it may be very effective.

Preet Bharara:

I don’t know what else you expect her to say.

Anne Milgram:

Look, it may be very effective.

Preet Bharara:

From my perspective, no Supreme Court Justice, or aspiring Supreme Court Justice when nominated says anything other than that kind of dry anodyne stuff. I remember back in 2005. I’ll never forget, I gave a talk, I think at some law school in the immediate aftermath of the Alito hearings, and people were talking about the proclamations that the nominee makes the pudding put forward by the White House. And I’ll never forget that Sam Alito made a statement, and it became the headline on page A1 of The Washington Post. And who was simply was even worse than what you’re describing with respect to Amy Coney Barrett.

Preet Bharara:

It was Justice Alito saying, “I will keep an open mind.” Of course, that’s what every judge, justice, prosecutor, arbiter of anything even down in small claims court is supposed to do. But it was elevated. That statement of his, his own self serving statement doesn’t mean a whole hell of a lot was elevated to some kind of clarion call of principle. When as you point out, the proof is in the pudding. How are you going to decide particular cases? What your ideological bent is? Are you an originalist or are you not? Do you believe in living constitution or do you not? So, for me, it’s like sometimes hearing politicians when they speak on cable news in favor of a candidate. It doesn’t mean a whole hell of a lot because they have to check certain boxes, say certain things so as not to get into trouble. And some of what they say could have been said by both the Democratic nominee or a Republican nominee.

Anne Milgram:

One other thing I’ve noticed, and we don’t talk a lot about politics, but I have been watching this. There’s been a lot of media coverage, and a lot of focus on in the first debate, Joe Biden, and then in the second, in the vice presidential debate, Kamala Harris, where neither of them would commit to not packing the Supreme Court, to not adding additional justices. I think this is an example of very artful framing by the President and the Republicans in basically making this like a core piece of the argument. I think I said last week it felt weird to me that they were even making a commitment when the answer in some way should have been like, “Look, she’s not on the court yet. And we don’t think she should be approved if you do the right thing, and you don’t nominate a Supreme Court justice during an ongoing election, then we don’t ever have to even get to that decision.” And short of that to basically say, “Look, we have no intention at this moment in time of doing anything. We’re not going to play the way that they play.”

Anne Milgram:

But the problem with all of it I’ve been thinking a lot about is just this very artful framing, which is that the president has violated every rule of fairness, and every principle of fairness with this nomination. And has shown, again, the standard that McConnell had for Merrick Garland is not being applied here. That you shouldn’t confirm a justice in an election year, you should let the people decide. So, in some ways instead of basically fighting about, should the people decide or should Mitch McConnell decide it’s been twisted to be the president is violating norms and rules. It’s now been twisted to this moment of like, it’s basically they’re asking Joe Biden to play by the rules. They’re violating all these rules, and they’re asking Biden to play… There’s just something about it that, again, I think that they’ve done… The Republicans have been artful at framing this issue, but it’s gotten a lot of traction. Joe Biden just said this morning, he’s not a fan of court packing. I feel like he should have said it a while ago, but I wonder what your take is on it.

Preet Bharara:

Here’s the problem with all arguments. Many, many people are making the arguments not in good faith. There’s a good faith reason to be concerned about expanding the court and violating a norm that’s been in existence for 100 something years, although the court has been of different sizes before. And Congress has the absolute authority given to it by the Constitution to change the size of the court. It could be seven, it could be eight, it could be nine, it could be 11. But people aren’t making those arguments in good faith, and what really angers me about the people who are now screaming and trying to put the fire out on their hair with respect to this idea of court expansion are some of the very same people, conservatives, Republicans who not only prevented Merrick Garland from getting a vote or a hearing, or even courtesy meetings with most senators, but openly talked about reducing the size of the court.

Preet Bharara:

The National Review published an article at least one maybe more arguing in a serious way with a straight face. Assuming that Hillary Clinton was going to win, that we allow the court to remain at eight, maybe even let it go to seven. You can’t take people away from the court. That would violate the constitution. But through a process of attrition, retirement or death, take the size of the court down. And if it’s okay to change the size of the court in a negative direction I don’t know why all of a sudden it is the most extreme violation of world order to expand the court, to change the size of the court in a higher direction. So, my problem with all of this is people are arguing in bad faith. People saying who have tolerated the breaking of every single norm you can think of, oh, well, now norms are important.

Preet Bharara:

They can’t argue that it’s unconstitutional. They can’t argue that Congress doesn’t have the power to change the size of the court. All they can argue is, wow, this is going to send the country to hell because of the violation of some norm. Now, there’s a good faith basis to say those things, and I understand that, and Biden himself has said it before. And he seems to be saying it again. Maybe because politically it’s getting some traction on the Republican side. But I’d like to see, maybe this is too much to ask. I’d like to see people arguing in more good faith than they have been in recent times. Speaking of bad faith, should we talk about a couple of other things that you and I have been chattering about in the last week.

Anne Milgram:

It’s really the perfect segue.

Preet Bharara:

Yeah. So, I really hadn’t been thinking about Rod Rosenstein, the former deputy attorney general, who appointed Bob Mueller as a special counsel, and before that was the US Attorney in Maryland. But then two things happened last week that I think deserve some of our attention. One was this New York Times report that details what looks to be in a draft of an inspector general report about child separations at the border. You remember that’s something you and I talked a lot about on this show, and that a lot of people were upset about. And so upset and argued so vociferously against these child separations that lasted for a long time that it was one of the few things on which the Trump administration did an about face.

Preet Bharara:

And one of the few things about which people headed for the hills not wanting to have responsibility for this terrible, terrible policy on the part of United States, and it has been in the minds of a lot of Americans that it was really the doing of the Department of Homeland Security. And the bad guys, and the culprits were Steve Miller in the White House, Donald Trump in the White House, and then people at DHS. And very quietly back then, I remember reading and hearing that the Inspector General at the Department of Justice was going to take an internal look and see what involvement and responsibility people at the Department of Justice had. And we haven’t seen it yet, and it’s subject to change, and it’s just a New York Times report, and it’s not gospel and released yet.

Preet Bharara:

But it paints a very ugly picture of how Jeff Sessions at the top and Rod Rosenstein too were really into this idea of childhood separations, intentionally and deliberately for the purpose of deterring other migrants from coming over the border. Rod Rosenstein, who has spent a career as Jim Comey put it being a survivor, and trying to straddle lines so he can be on one side of an issue or the other side of an issue or escape blame doing this tightrope walk is at the center of the story. What did you make of it?

Anne Milgram:

Yeah, I think this is a really important conversation. And it’s a really important story. And I do want to give a little bit of credit to the New York Times reporting that because they did review an 86 page draft report. The report cited interviews with more than 45 key officials. And then The Times also went out and talked to three government officials who had read it. So, I think it’s not speculation. I think people should know The Times is working off a draft. What it says in there and remember that at the heart of the policy was this idea that if you prosecute the parents who are unlawfully crossing into United States, and you separate them from their kids, that this would be a deterrent to stop people from coming. And again, it is sort of on its face just the cruelest most awful policy, in my view, to intentionally try to target kids as a way to teach a lesson to their parents.

Anne Milgram:

What this makes clear is that it’s led by Jeff Sessions in many ways because the normal practice is that people come into contact with immigration authorities. And immigration generally has the authority to send them back. The people who have the authority to bring a case, to bring the prosecution, which would lead to the separation is the United States Department of Justice. So the article says that Jeff Sessions who was then the Attorney General made it clear that Mr. Trump basically wanted this policy this “zero tolerance” family separation policy. And there are notes from one of the participants on a call that Sessions said, “We need to take away children.” This is missing from the quote, but it basically says, “If parents care about kids, don’t bring them in,” and then goes on to talk about not giving amnesty to people with kids.

Anne Milgram:

Then Rod Rosenstein who was the deputy AG. And remember that Rosenstein as a career prosecutor, the deputy AG generally runs the day to day of the office. He does a call with the US Attorneys telling the five prosecutors that, “It did not matter how young the children were.” There had been prosecutors that have refused to prosecute two cases because the children were barely more than infants. And Rosenstein goes on to say that it doesn’t matter how young the kids are. And so, when he’s asked, when he’s interviewed for this inspector general report he goes on to basically argue that the removal of the kids was not DOJ’s problem. That it was, “the equity” of the Department of Health and Human Services who had to take control of the children.

Anne Milgram:

It is outrageous. It is so clearly to me and abuse of his authority as a deputy AG to say that there’s no responsibility for what impact the prosecution would have when parents were entering the country with children or trying to enter the country with children that otherwise did not have other alternatives to care for them. And they weren’t even trying to figure out if there were other options.

Preet Bharara:

A couple of things. Then Rod Rosenstein when he’s asked about it uses weasel words. I mean, I think his testimony according to the New York Times is something like, “I never directed anyone to prosecute any particular person. And if any prosecutor brought a case against a particular person that you believe was correct, that’s a violation of their oath.” He made a general statement that you should not consider the age of the children. And there were also sentiments expressed between the higher ups at the Department of Justice negatively about US Attorney’s offices that were not bringing these prosecutions.

Preet Bharara:

So, it’s kind of a twisted pretzel kind of logic to on the one hand have said things that would compel people to bring cases that would result in child separation. And on the other hand say, “I’m not responsible for it.” And the other thing that’s very clear from all that you’re describing is unlike some things where everyone was on the same side and wanted to proceed, there was a rebellion taking place within the department. There were line prosecutors and local United States Attorney at least one who didn’t think this was a good idea. And were trying to fight back against it. So, you have not only a generalized policy that they can say was issued on a piece of paper. No. You had a controversy within the department and Rod Rosenstein in particular, and Jeff Sessions took a particular side in that controversy, and the side they took was one that is terrible and awful, and that they will never live down, and shouldn’t try to weasel out of.

Anne Milgram:

Yeah. I mean, look, weasel feels to me like the perfect word for Rosenstein. But in some ways, it’s even worse than that, right? Because there’s a way in which when he talks about the oath, the person who didn’t honor their oath to the United States and the United States Constitution was him. It’s sort of like he’s putting it on other folks saying when you’re faced with something you don’t believe in, you shouldn’t do it. Well, he did a lot of things. And either he believed in them, or he didn’t. And he has continually tried to straddle this line in a way that’s just not accurate.

Anne Milgram:

It’s just, he has been… And I want to talk about a few of the other things, but just to stay on this for one more minute. I think people also have to understand that the choice that Sessions and Rosenstein made here was a choice that was not about public safety. And so the idea was you’re going to stop undocumented people from coming into the country by punishing their kids. The reality is that the draft report documents a number of things that were not known including that, “Border patrol officers missed serious felony cases because they were stretched too thin by the zero tolerance policy requiring them to detain and prosecute all of the misdemeanor.” These are the lowest level cases, illegal entry cases. So, one Texas prosecutor warns the top DOJ officials in 2018 that, “Sex offenders were released,” as a result. There’s a lack of serving warrants in important cases by the marshal service because they just didn’t have the capacity. So, I think it’s really important to know what choices they were making. And it feels incredibly political.

Preet Bharara:

I just want to emphasize something that you said about how rod Rosenstein violated his oath. And he did, both in spirit, and I think in fact. So, according to the report senior Justice Department officials viewed the welfare of the children as a responsibility of other agencies. And their duty is tracking the parents. Other people were supposed to do that. And here’s what Rod Rosenstein says, “I just don’t see that as a DOJ equity.” What I learned when I was in the department is all of these things are part of a DOJ equity. If your job is to care about principles, and fairness, and justice, then you do care about those things. You can’t just five off that responsibility on some other agency.

Preet Bharara:

It’s not how it works, and also to just put a fine point on the kinds of things that prosecutors were being asked to do, and how they were repelled at it. You had one government prosecutor writing to his superiors in a note or in an email, “We have now heard of us taking breastfeeding defendant moms away from their infants. I did not believe this until I looked at the duty log.” This is the kind of thing that Rod Rosenstein knew about, was aware of, didn’t think was a DOJ equity, and then goes ahead and blames the prosecutors themselves for violating an oath. It’s like the height of… To coin a phrase, at the height of grossness to me.

Anne Milgram:

Yeah, I think that’s right. I think it’s also really important to just note also that there was no plan in place. So, you and I agree that prosecutors have to consider what’s going to happen. You don’t just make an arrest and everything ends. You’re making an arrest for a misdemeanor, a low level offense, you’re taking somebody’s child away. There was absolutely no plan to get that child back. And so, I sit on the board of a nonprofit that helps homeless youth. There are kids in Honduras who are in the custody of care of this nonprofit who have not yet been reunited with their families. And this is 2020. And so, I think that anyone who doesn’t understand the devastation of what this was, and what this was intended to be is missing the point that they didn’t care. And for Rosenstein to then double down and to blame the people who were saying, “This shouldn’t have been happening,” it is the height of grossness.

Anne Milgram:

I want to say one other thing that which this reminded me of, and I think Rosenstein, and I don’t know what you think. He has gotten off way too easy. And he has gotten off way too easy because he is a card carrying member of the Trump administration. He repeatedly compromised integrity and ethics, in my personal view, in order to benefit the President of the United States, who has shown that he does not follow the rule of law. And so, the other thing that got me about Rosenstein’s tweet was basically talking about the rule of law and how our country’s strong. And it’s almost like he’s trying to put himself in a position of like, I’m a hero of the rule of law, when it’s the exact opposite. He’s a coward, and he’s trying now to hide behind the rule of law thing when he is one of the people who’s undercut the rule of law in substantial ways. And we should talk about the Mueller report in a minute as well.

Preet Bharara:

So, the other thing that really kind of pissed me off. It doesn’t happen often, was the combination of that report in the New York Times and Rosenstein’s role, and the cold hearted things he did and said. But also then, as you mentioned, and I want to read it to folks, his delusional and self righteous sanctimonious tweet. This is in the face of President Trump making these bizarre statements about how Obama and Biden and everyone else should be prosecuted. Even though there’s no evidence supporting such a prosecution. Rod Rosenstein tweeted, “The Department of Justice will ignore the president’s threats against his political opponents as it has in the past because prosecutors who take an oath to support and defend the constitution must uphold the rule of law,” which is a fine anodyne statement and high minded statement. But coming out of his mouth without context of the current moment, and without an acknowledgement of all the ways in which I think he has violated his oath, arguably, and has allowed other people to violate their oath. It really stuck in my craw.

Preet Bharara:

What especially stuck in my craw is, for those of you who are not on Twitter, there’s a new feature by which you can disable replies from your tweet, and restrict them only to people who you follow. So, Rod Rosenstein puts out this tweet, disables replies, which means literally no one can reply to him because he in his sanctimony, and self righteousness follows zero people. So, he likes to put out his statement. Oh, look at me high minded Rod Rosenstein, and we’ll talk about ways that I think he has gotten off the hook on a variety of things for far too long, but also wants to relieve himself of the obligation to see what people have to say back to him. I find that unacceptable, and bad faith.

Anne Milgram:

Yeah, I would say two other things about Rod Rosenstein, and then of course we can move on. But really, we could do an entire episode on him. The first is that it’s really important to remember back in 2017 when he first came into office when he… You’ll remember he’s called to a meeting with President Trump. He is told at that meeting that Trump is going to fire Jim Comey. He’s asked to write this memo, which basically, and he obviously I’m sure the memo didn’t come out of thin air. I’m sure he was complaining about Comey and saying call me had violated the norms of the department by talking about the Hillary Clinton investigation, which a lot of people agree with. So, he’s asked to write this memo. He goes out, he writes his memo, he gives it to the president. The president walks out and what shouldn’t have been surprising to anyone, particularly Rosenstein, who knew that call me was about to be fired is that the president says, “I’m firing Jim Comey because of what the Deputy Attorney General Rod Rosenstein said.”

Anne Milgram:

And so, he uses that memo that Rosenstein has written on what Comey did wrong with the Clinton investigation as a justification for it. So, Rosenstein then he threatens to quit. He goes out publicly. And it really all in hindsight now understanding that he left that meeting with the president knowing that the president was going to fire Comey. He was a willing participant. He didn’t stand up. He didn’t say no. He went out and wrote a memo that anyone in their right mind should understand the president was going to be used. And he did it because he thought it would be hidden. Because he didn’t think it would see the light of day. And he apparently had no issues with it until it became public.

Anne Milgram:

And so, this goes back to your view of rod Rosenstein as the weasel in chief because that’s cowardly, right? It’s like, he’s willing to violate whatever norms, whatever rules, whatever rule of law he has to violate. He just doesn’t want to get caught. And that’s where he starts to complain and walk it back. And he puts Mueller in as a special counsel, but it’s always about him. It’s always about his reputation and when it mattered, and when he had to be standing up to the president, he didn’t.

Preet Bharara:

I want to tell one more story. Before that, I should mention to folks and as you know, over the weekend in response to Rod Rosenstein’s tweet, I tweeted a few things, and foreshadowed this conversation, which was not going to go well for Rod Rosenstein. So, I should put on the record, he reached out to me yesterday. He emailed me and asked me to call him, and I decided not to call him back, because you know what? He can defend himself in a tweet. I don’t know if he was calling because he saw the tweets. I don’t know if he was calling for some other reason. He and I are not friends. So, I don’t think he was calling to get a Zoom drink. But I should just leave here that he did reach out to say something. I don’t know what. He can respond to afterwards.

Anne Milgram:

It would be really awkward if he was trying to get you for a Zoom drink. I’m just picturing what that would go like. But anyway, sorry.

Preet Bharara:

I have other folks that are higher priority for Zoom drinks than Mr. Rosenstein. But here’s a story that is overlooked. And I think sort of encapsulates a lot of the problems with Rod and how he tries to have it both ways. The opening anecdote in Jeff Toobin’s latest book called True Crimes and Misdemeanors is interesting to me. And this is publicly known, but I think it just doesn’t get the attention it deserves. On May 16th, on the eve of Rosenstein appointing Muller. And I’ll say, look, that was a good move appointing Mueller, but I have a view as to why he did that. I think it was more about Rod than about the country and about the Department of Justice, and about finding out the truth.

Preet Bharara:

I think Rod was under attack, and he was being maligned by all sides. People who had supported him in the past because of his role in the firing of Jim Comey. And he thought, what is the way to make it right for me? And sometimes the things that are right for you align with what’s right for the country. I think in this case, it did. But make no mistake about what his motivations overall were, in my mind. He wanted to make things right about himself. And so, he did the nuclear option, and he pointed Bob Mueller. But before that happened as Jeff Toobin points out in his book, there was a meeting at the White House attended by Rod Rosenstein, and actually, the meeting was set up by Rod Rosenstein at which the president was going to hear from Bob Mueller, who is at that point, a private citizen in private practice. And the purpose of the meeting was to get a little guidance and advice from Bob Mueller about who the next FBI Director should be.

Preet Bharara:

Literally, Rosenstein had reached out and brought Mueller to the White House, the Oval Office, in fact, to have this meeting. Rosenstein is there, the president’s there. That’s what the purpose of the meeting is. After Bob Mueller gets appointed as a special counsel, Donald Trump, repeatedly again, and again, and again, said to the public, partly in an effort to denigrate Mueller, and also maybe to get him to recuse himself on an alleged conflict. He said that Bob Mueller had come to the White House to beg for his old job back. That he wanted to be the FBI Director, which by the way I think was a violation of law because he had already served the full term that had been extended by Congress. Again, and again, and again the president blatantly lies to the public in an effort to cast aspersions on the special counsel.

Preet Bharara:

What did Rod Rosenstein do? To my knowledge, and maybe he can correct it, and maybe I’m wrong, and I’ll concede it if I’m wrong. He never corrected the record. He never said that’s not true. And look, I should say that Rod Rosenstein addressed for like a fleeting moment this particular Mueller issue on the Words Matter Podcast a few months ago, but to my mind it was a day late and a dollar short. I think he told Jeff Toobin in the book it was not true. But here’s an example of Rod Rosenstein, on the one hand, touting the integrity of Bob Mueller, appointing Bob Muller, some ways he’s gotten away with a lot of things because he was seen by Democrats as someone protecting the Mueller investigation. But here’s a small point on which the president is lying again, and again, and again about Mueller begging for his job back. Knows it’s not true, keeps his mouth shut.

Anne Milgram:

And using it to undercut the investigation. [crosstalk 00:47:32]. It was very clear why the president was doing it.

Preet Bharara:

But how do you explain that?

Anne Milgram:

Cowardice.

Preet Bharara:

How do you explain?

Anne Milgram:

Cowardice and a lack of principle. I think also we knew this, and we talked about this a little bit when Barr did the summary of the Mueller report, which remember, Robert Mueller came out and wrote a letter saying, “This is not an accurate summary of the report.” And Rosenstein stood right by Barr, and they put in the letter that they both agree that the obstruction part was not prosecutable as obstruction. They twisted, and I think deeply misrepresented the work of Robert Mueller. And so, I think, look, Rosenstein, he’s a survivor. He cast his lot. He was always looking at where the wind was blowing. And he just didn’t want people to see who he really was.

Anne Milgram:

He kept his head down when it suited him. And I think that sort of story tells you a lot of what you need to know about him. I also think that there’s an important way in which I want to say two other things. I want to remind folks that for the Time 100 People of the Year in 2019, and look, that’s a great list of people who are prominent in our society, and you’ve been on it, I think, right? But what… Right, weren’t you on it? Yes?

Preet Bharara:

I was.

Anne Milgram:

Yes. Rosenstein is writing whenever somebody is on it they ask a prominent person to write a blurb. Rosenstein writes one for Bill Barr, and he basically says about Bill Barr, he knows the history. He understands the issues. He respects the employees, and he will defend the principles. With Bill Barr at the helm, the rule of law is secure. It’s like an extraordinary thing to me. But I think we should all be clear that he really cast his lot in with Barr, and with the president.

Anne Milgram:

The last thing I’ll say, and this goes back to him calling you. You and I generally, we don’t go after people. We don’t talk badly. Nothing is personal. This, of course is also not personal. But I do want to make a note about the legal elite, and how people can hide behind these norms and unofficial groups of people who have… He’s a former US Attorney. He’s been a senior Department of Justice official. There’s a certain level of deference, I think, I should say that he has exploited to basically, to continue on without having to answer for how he undercut the Mueller investigation, for how he misrepresented its findings. And I agree with you. Look, he appointed Mueller. He also did a lot to basically make sure that that was never going to be effective. That it was never going to hurt the president.

Anne Milgram:

He is now a lawyer in private practice at King and Spalding, a very prominent law firm. He was recently elected to the board of the American Law Institute, which I am also a member. And it’s like, I think you and I both have had this moment in the past week of saying, “Why is he not held to account for the actions that he has taken that have been contrary to integrity, to the rule of law.” I would argue to the wellbeing of the American public? And so, if anyone’s violated his oath, I think it’s him. I don’t say that lightly, but I think it’s really serious. And I think that we have to be willing as lawyers to call out people in our midst who are doing what he’s doing, which is trying to shade the truth so that he can survive yet another period of time and go on and further his career. It was too much for me when I saw the Twitter stuff as well.

Preet Bharara:

Yeah, there’s one thing we can thank Rod Rosenstein for. I don’t know that you’re going to guess what I’m about to say. But back when he resigned, he submitted a letter to the president, which I think at the end of one of our shows you read on air, and among other things in his thanks to the president he wrote the following line. “As I submit my resignation effective on May 11. I am grateful to you for the opportunity to serve. For the courtesy and humor you often display in our personal conversations.” And you began cracking up as you read that.

Anne Milgram:

I couldn’t read. It was like the Pina Colada song.

Preet Bharara:

Then I started laughing.

Anne Milgram:

Yeah. I like long walks on the beach, Pina Coladas at sunset.

Preet Bharara:

Getting caught in the rain.

Anne Milgram:

Yeah.

Speaker 9:

(singing).

Preet Bharara:

But the reason I mentioned it is that was how it was born a sort of regular feature of the CAFE Insider Podcast where you will try to get through reading something without laughing.

Anne Milgram:

We do. You’re right. It’s fair.

Preet Bharara:

Our little laughing challenge.

Anne Milgram:

We owe a debt of gratitude.

Preet Bharara:

That was spawned by Rod Rosenstein, so he did do one public service.

Anne Milgram:

Yes. Fair enough.

Preet Bharara:

So, Anne, we’re running out of time, and it’s such a newsy week that we haven’t even gotten to what was gigantic news last week, I think last Thursday, where both state and federal charges were brought against a total of 13 people who were alleged to have conspired to kidnap the governor, the sitting governor of Michigan, Gretchen Whitmer. They were charged with under Michigan law, some of them were charged with material supportive domestic terrorism, and the others were charged with conspiracy to kidnap. This comes obviously in the face of a lot of heated rhetoric by the President of the United States.

Preet Bharara:

Remember when he was tweeting things like liberate Michigan? And it raises a lot of questions about who was being encouraged to do what kinds of things. It was odd in the wake of the charges being brought by this administration’s own Justice Department, we might say, that the president still gets into a war of words with the person who was in harm’s way, and at risk of severe violence. So, I don’t get it. I’m wondering what your thoughts are on not just the case, but on the state of rhetoric in this country and violence.

Anne Milgram:

Yeah, I mean, just to take a moment on the case I think a lot of people haven’t followed the facts that closely. But it’s an extraordinary thing. I mean, six people charge by the federal government, seven people charged by the state, all of them with this plot to kidnap or potentially kill the governor of the state of Michigan. It’s really terrifying. The group is they belong to or were associated with a group of right wing militia members, essentially espousing far right extremist views. And it really is a few things really come to mind that I think are worth noting.

Anne Milgram:

The first is that this isn’t a theoretical plot. And people should understand that law enforcement follows plots like this for a long time. They got to a point where there were multiple co-conspirators who met to put together money for explosives and to exchange tactical gear. And so, this is not some hypothetical, somebody espousing a view and saying that they want to target somebody. These are really concrete, and they’re a series of concrete actions that these folks have taken to further this goal. And so, it is really terrifying. And it’s terrifying not just because of what they believe that is hate fueled militia, right wing, types of rhetoric, but also that they were taking so many actions, and that they were going out to basically pull together money to make explosives. They’d also cased her vacation home. They’d looked at a bridge that was nearby for a place where they could station themselves. And they had what I would describe as a pretty intricate plot. So that’s the first piece for people to understand just how serious it is.

Anne Milgram:

The second piece is that we have to be honest that is we have watched over the past three plus years now that the right wing extremists, the right wing militias, the folks who are amassing arms and weapons, and are targeting people whose views they do not agree with have become more powerful, and more frequently outspoken in our public light. And we’ve seen this. We’ve seen folks show up at some of the peaceful protests in response to Black Lives Matter. We’ve seen this increasing trend, and I think we have to be very honest about how deep this goes in society and how important it is to root it out and to not allow this type of hate and particularly this type of hate filled violent extremism that could have just horrific consequences to go on.

Anne Milgram:

And so, the president immediately was on the attack against the governor. She also basically said, I think very clearly like, “Look, the president’s rhetoric is leading people down this road.” The president has refused to take responsibility for that. But look, I think language matters. I also noted, and I don’t know what you think of this, Preet, but Bill Barr he’s got his finger in these very small, and I’m not in any way belittling the importance of election fraud. But he’s out there giving public statements talking about state election fraud cases, misrepresenting them. We talked about the case from Texas recently where he had the facts wrong. He basically said that there were like I think thousands of fraudulent ballots, turned out not to be the case. It was a very small state matter. It wasn’t even a federal matter, and he makes no statements on this.

Preet Bharara:

So, I was wondering if that’s because he’s not been coming in because of COVID and his exposure to COVID. But it is remarkable that on a case this significant the press conference was done by the Assistant Attorney General of the National Security Division. I’m not aware of a comment by him. Maybe he has a quote in the press release, I’m not sure. But this is the kind of thing that historically an attorney general would rightly be touting as a significant victory for law and order and rule of law, which are phrases that Bill Barr and the president use all the time. Why not in this case? Could it be, and again, maybe it’s not for this reason. But given the context and the track record, one has to wonder. Could it be because it doesn’t fit a certain narrative of all violence being perpetrated by an NTFA, and people in the left? When you have violence being threatened by people on the right he seems not to be as thrilled about it.

Anne Milgram:

Yeah, I mean, look, it’s worth noting law and order is about pursuing any facts that that under the law lead to crimes that are serious matters. And that requires that cases like this be prosecuted. It doesn’t seem like the US Attorney had a moment’s hesitation or the state AG in bringing these charges. And the idea that he wouldn’t stand out in favor of the rule of law, and law and order by basically saying, “Look, if you plot to assassinate political leaders, which is essentially what this is you’re going to be captured, you’re going to be caught, and fully prosecuted under the full extent of the law.” And so, this idea of law and order is only when… He’s only willing to talk about law and order when it benefits the Republican side. Again, it’s really troubling to me.

Anne Milgram:

And also, look, I think we should be honest, and just be grateful, there’s some really good law enforcement work at the state and federal level. The local police officers and law enforcement officials and the FBI have done a really good job. And these are complicated cases often to make, and they’ve done a great job. So, I think that should give people some solace. What really caused me to pause is this is a national case. This is super important. And the Attorney General is not willing to go out and speak on it. A lot of people might not realize what a statement that is, but it’s a huge statement.

Preet Bharara:

Indeed, that is true. How come I can see you now?

Anne Milgram:

Oh, wait, hold on. I’m having a Zoom problem. Come on. Come on. Three, two, one.

Anne Milgram:

(singing).

Preet Bharara:

What is going on?

Anne Milgram:

(singing).

Anne Milgram:

I think we’re better at our jobs than we are at singing.

Preet Bharara:

That was.. Well, I’m very touched and thrilled at the birthday wishes.

Anne Milgram:

We thought we’d be done with a lot more by the time we-

Preet Bharara:

You didn’t rehearse, did you?

Anne Milgram:

We didn’t rehearse. We got to keep it spontaneous. [crosstalk 00:59:33].

Preet Bharara:

No, because suddenly, I’m looking at the screen and I see my brother. I’m like-

Speaker 10:

Oh, no.

Preet Bharara:

“Why is my brother popping in to our taping? This is not a good sign for my future of the company.”

Anne Milgram:

It’s quality assurance.

Speaker 10:

Happy birthday, bro.

Preet Bharara:

Thanks, man. Thanks, guys.

Anne Milgram:

Happy birthday, Preet. [crosstalk 00:59:50].

Preet Bharara:

29, 29.

Anne Milgram:

Thanks, guys.

Preet Bharara:

Thanks, guys. So, a lot more coming up in the coming week. The continuation of the Amy Coney Barrett hearings, and probably lots of things that we’re not expecting will come to pass in the next week too. Make sure you vote.

Anne Milgram:

Thanks, Preet. Please send your questions or comments to [email protected]

Preet Bharara:

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