Preet Bharara: From CAFE. Welcome to CAFE Insider. I’m Preet Bharara.
Anne Milgram: I’m Anne Milgram.
Preet Bharara: Fourteen days, Anne.
Anne Milgram: Fourteen, two weeks from today.
Preet Bharara: You know what to call that. The fortnight.
Anne Milgram: I saw that you tweeted that out. I thought it was an excellent use of the Old English.
Preet Bharara: I think people thought I was talking about a video game, but I’m never talking about a video game.
Anne Milgram: It’s coming soon. I’ll get early vote. New York’s early voting is starting …
Preet Bharara: It’s starting Saturday. Yes.
Anne Milgram: Yeah, I’m going to do it.
Preet Bharara: That’s the plan.
Anne Milgram: Because by the way, I’ll just say this, I never got my absentee ballot. I sent an email and they never got back to me. It is a good example of you have your plan to vote, something happens. Then I just made a new plan, and I’m super excited to vote in person and why you even has a place that’s going to be open for early voting.
Preet Bharara: That’s great. Everyone should do the same, thing except something like 30 million people who voted already.
Anne Milgram: It’s amazing. It’s great. Actually, I think I read something last night that said that in New Jersey, there’s almost half of the people, the same number of people that voted in 2016 have already cast ballots, through vote by mail. It’s an amazing thing. I think a really important and great thing.
Preet Bharara: Speaking of voting, like the segue. There will be a vote on the confirmation of Amy Coney Barrett, in a matter of days, in the Senate Judiciary Committee.
Anne Milgram: Well, let’s talk about the timing for a second, because the two things in my mind are related in some ways, the election and the vote on Barrett, because …
Preet Bharara: Very much so.
Anne Milgram: Yes. It’s looks like, Preet, it’s going to literally be … The vote is literally going to be three or four days before the election.
Preet Bharara: Well, that’s the whole point, right? They’re trying to rush this person in, as we’ve talked about a number of times now, with respect to the hearings. What’s interesting to me, just from a 3,000 foot level, it’s the most consequential Supreme Court pick in one or more generations, because of how much it will lurch the court to the right, and how much of a swing there is between Ruth Bader Ginsburg and Amy Coney Barrett. I know people are upset about it. I know people have been paying attention to it. But it didn’t seem to garner the focus and attention you might think it would have deserved given the significance of it. Is that because of the pandemic and the election, and there’s too many other things to think about?
Anne Milgram: I think it’s because it’s three things. The first is that I think, look, and we’re all guilty of this to a certain extent. I think a lot of folks felt that this was inevitable. There was definitely some sense of I think people, not necessarily putting the foot on the gas with arguing this and fighting this with the sense that it was going to happen regardless. The second reason is, I simply … and I’ve said this to you before, I do not think people understand how devastating this will be for our country. Even legal scholars and pundits who I respect and admire have said, “Oh, this is a generation, meaning this is going to be for 10 years.” This is not 10 years. This is 40 years. It may be more.
I mean, think about the age of the justices, think about John Roberts, think about Sam Alito, think about Neil Gorsuch, think about Brett Kavanaugh, they’re young. I think it is wild. It just we have failed to successfully argue to people why this matters so incredibly much. Then the last reason is that I think that it comes in the midst of all this other stuff happening in the world, a global pandemic, skyrocketing numbers of us deaths. Look, the republicans have tried very strongly to frame Barrett as following, in some ways in the footsteps of RBG. She does not in my personal view.
But they’ve been crafting this framing of her. You even saw during the Q&A of the hearings, how many of the senators were talking about her as a family woman, as somebody who … one of the senators asked her how do you do it? All right, you’ve got all these children and they go to school and you’re working full-time.
Preet Bharara: Were you offended when the senator … I think it was Senator Kennedy asked her.
Kennedy: “Who does laundry in your house?”
Anne Milgram: Well, yes, I was a little offended. Because I think if we are honest about it with Senator Kennedy, he did not ask that question of Brett Kavanaugh. Nor would he ask it of any man. It’s almost like … It felt to me, I don’t know if you felt this way. But it almost felt to me like maybe he’d had a conversation with her before where they’d … I don’t know if he talked to her about it or not. It was just so off-key to me. It’s so emblematic of the United States of America and this view of women who work and who are ascending to the highest ranks of the legal profession, other professions that really the first job they’re supposed to have is … and look, it’s my favorite thing in the world is to be a mom and a wife. Don’t get me wrong.
But it’s like this idea that somehow everything else should be subservient to that or that you can’t have an equal and balanced relationship with your spouse that because a man would never do laundry almost. I don’t know. What did you think? I was not happy about it. Yeah.
Preet Bharara: Because my overall impression of the hearing was that she was less forthcoming, than most recent nominees, and that’s saying something because people haven’t been very forthcoming. In fact, Justice Ginsburg, when she was then Judge Ginsburg was a lot more forthcoming about a lot of things, including her views on reproductive rights. But even on the laundry question, she didn’t actually answer that question. People, it seemed like she did.
Ruth Ginsburg: We increasingly have been trying to get our children to take responsibility for their own, but those efforts are not always successful. We run a lot of loads of laundry.
Anne Milgram: Yeah.
Preet Bharara: Here she dodged …
Anne Milgram: Neither of I.
Preet Bharara: Here she dodged that question, too, I guess. No hints. No previews of laundry [crosstalk] on the case.
Anne Milgram: Do you think … Yeah. I mean, she really was not forthcoming on almost anything. There were a couple of tells, I think, and we should talk about those. But one of the things I think is so interesting is that she is the most hyper-ideological person, I can remember having been nominated to the court in recent years that we knew about, with her writings, and the statements that she’s made it speeches that she’s given. In many ways, she feels better known in some ways, then, and only now are people starting to come … they’re finding the decision in which she refused to allow, the young girl who was pregnant and incarcerated was raped repeatedly by an officer and Barrett voted to refuse to allow that case to go forward against the officer.
Only now are people starting to dissect more some of her opinions, but her public statements and speeches about Roberts and the ACA, they’re more out there than any other nominee. In some ways, pretty … I was wondering this … it’s a sign of our democracy right now. I don’t think most presidents would have nominated someone that was that seemingly partisan or ideological, and yet, that’s exactly why she was nominated.
Preet Bharara: I don’t think that that’s necessarily true. I think that she could have been nominated by Jeb Bush, or any one of a number of Republicans. I think the most important factor is what we go back to time and time again. It’s the president’s fairly honest statement. If you have the votes, you can do what you want. It’s all about having the votes. I mean, there have been Supreme Court nominees before like, Bork, who failed, or there’s been a difference in the alignment of how many Democrats and Republicans there are in the Senate. Then you have to pick someone who’s more moderate. Or then you have to pick someone who’s prepared to say more to get enough votes, or someone who’s mysterious enough. Hey look, at a different circumstance …
Anne Milgram: [crosstalk] Well, it used to be …
Preet Bharara: Yeah.
Anne Milgram: Right. You used to have … Yeah. Actually, I think that the world is a better place.
Preet Bharara: There was consultation.
Anne Milgram: Yes.
Preet Bharara: I think it’s true with Ginsburg, and with Stephen Briar back in 1993, 1994. That in advance of those selections, President Clinton spoke to, I think at the time, it was Orrin Hatch, to talk about people who might be acceptable on a bipartisan basis. That doesn’t happen anymore.
Anne Milgram: Yeah. I do think as you’re talking about Bork and others, it is making me think that the senate has changed the rules. A simple majority, 51 votes gets you to end debate, it gets you voted to the Supreme Court, whereas it used to be you needed 60. That 60 votes almost always meant because the parties, they tend to flip-flop who’s in charge of the senate, but it’s often pretty close. It’s not often 70 of one party, 30 of another. It’s often within that heartland, which means that of being equal, and that means that you had to get some form of consensus.
The Democrats had to get more progressive senators, and the Republicans had to get slightly more conservative Democrats or for whatever reason, they needed to be able to get some of those votes. I think it was advantageous to the American public in the end, by having that rule, which no longer exists.
Preet Bharara: The nominee over whom a lot of blood has been shed, Merrick Garland who never made it to the court. But people are forgetting is, he was not some wild-eyed liberal progressive. Former DOJ official, fairly moderate judge, along the lines you’re speaking about when Barack Obama had an opportunity, with knowing that the senate was in the control of the other party, maybe not knowing yet that it would be blocked completely. I presume that he made the choice of a moderate, who was not super young, because he thought that was going to be an easier thing for the Republicans to swallow and for there to be bipartisan support. He was wrong. Because no human that Barack Obama could have nominated in 2016 was going to get past Mitch McConnell, for reasons that we’ve discussed. But, look, those political considerations do play a part in all this and did play a part in 2016.
Anne Milgram: One last thing just to talk about on the hearings, I was struck as I think a number of people were by Barrett … by this discussion of super precedent and having these buckets of there are certain prior court decisions that will be followed, because they’re what’s called a super precedent, meaning they have years and years behind them and have been continually reaffirmed, and then other things that Barrett described as just president meaning there are things where she said that you only get to be a super precedent, if there’s no more political debate about something.
For example, she said, Brown versus Board of Education, which of course that you can’t have separate is not equal, and struck down Plessy versus Ferguson. She said that super precedent. She would not say that Roe or Casey, which is the case that follows Roe in the reproductive rights area, she would not say that they were super precedent. She also got into it a lot with Senator Harris, the vice presidential nominee on climate change and argued that’s a legislative matter, there’s no super precedent on that.
Preet Bharara: There’s another case that she refused to say, was super precedent, which is a little bit more problematic than some of the others. That was Griswold V. Connecticut, that basically laid out a privacy right for contraception, and was a precursor to Roe and a lot of other protections we have. As some people have noted, the target for the right wing court, maybe is not Roe. But as a preliminary matter, it’s Griswold. It is certainly true. I mean, it’s hard to make a lot of headway here on this point, depending on who you’re talking to. Because it is certainly true that in our history, there have been presidents that have been overturned and rightly overturned, Dred Scott, Plessy, because the courts have ruled in a very unfavorable and unjust way.
In the context of there having been cases that have been overruled by later Supreme Court, and that you and I and reasonable Americans say that those over rulings were just and proper. It’s hard to argue with the proposition that not every Supreme Court president should stand. Then the area in which there’s all this skirmishing and fighting is, well, which things can you overturn, and which things can you not? It’s the safest ground to talk about cases like Brown V. Board, because as a lot of senators made the point during the questioning, although I think it’s of limited value, if you really focus on what’s going on with respect to race in this country, that there are not explicit moves in the legislature to re-segregate schools, for example.
For that reason, it’s a bit of a cop out. A person can say, “Well, that’s super precedent.” One of the reasons you can get away with saying it’s super precedent is this idea that will no one’s trying to go back to the blatant and direct segregation of blacks and whites in schools in the south or anywhere else. You don’t have to worry that that’s going to come up again. If that’s your standard, then depending on how social norms evolve, and people change with respect to their views about so many things, and who gets what rights, that’s all subject to change.
Which is funny, by the way, if you think about it, given that the whole philosophy of Amy Coney Barrett and others is originalism, it seems to me, which is try to figure out what the meaning of the text was back in the day was written at the founding of the Republic, when on the other hand, this issue of what’s precedent, and what’s super precedent is firmly grounded in social acceptance of what is right and what’s not. Those two things seem to be in great conflict with each other.
Anne Milgram: Yeah. I agree with that. I also think, there was a great piece written by Dahlia Lithwick, in slate, The Heartlessness of Amy Coney Barrett’s Originalism, which goes back to this view that the way that the text was originally written and, and understood is what matters. Lithwick goes on to talk about how that will have devastating results. It will be for Americans, for healthcare, for voting rights, for reproductive health, and that it will be done under the guise of these original principles. She goes on to know and I think it’s really important that when that document was drafted the original document it was the laws and the constitution were geared around the male, white male, landowners, and they weren’t … they didn’t even accept women’s having the right to vote. They didn’t accept black people as full citizens of the United States.
It’s just a really important thing to think about what it means to go back to that original document and not to account for the changing times. Then yet, as you said, when it comes to deference to prior court decisions, all they want to talk about is this question of are there still disputes, are there changing norms. It is hypocritical in my view, too. I think it also … I did think that you could give the Columbo Award and you probably remember Columbo I think it’s one of the reasons I went to law school, which is right. He always seems he’s bumbling in court and then he stumbles into this dramatic moment.
The Colombo word kind of like, I don’t know who you would give it to. I’d give it to the Republican Senator Ben Sasse, who clearly was trying to help Barrett but asked her … talk about the First Amendment, tell me the five freedoms and she only named four. To be fair to her, I think probably most law professors in America and others could not name all five. But you know … Yeah.
Preet Bharara: Yeah. We can get to …
Anne Milgram: Yeah. Let’s about this.
Preet Bharara: I give her some slack on that.
Anne Milgram: I give her some slack. But I will tell you this. What was fascinating is that he asked her question that she didn’t expect. She expected the questions about the ACA. She expected the questions about Roe versus Wade. She gave these answers to your point where she really didn’t answer very much, she was … but she was very well prepared. Then she gets to the space where people are throwing questions at her outside of the norm of what she expects. She was definitely thrown off her game. I agree, look, I couldn’t have like … I think if we pulled prominent lawyers as to whether they’re qualified, they would know it.
Preet Bharara: If you start quizzing people about every aspect of the constitution, but so can … I love a criticism on some of our friends, who just jumped on Twitter, and said, “Well, she doesn’t,” and if people had a feel they would that … and I get it, she’s been a professor for a long time, you should be able to name all of them. But I thought in the context of what this nomination means, in the context of what her confirmation will mean, and how many rights she’s poised to take away, and how many other things are terrible about this process, the timing, the theft of the seat from Merrick Garland and everything else, it seemed to me to be a trivial thing to focus on if in the moment she had a brain glitch.
Anne Milgram: It’s by far the least important of all the things. I agree. But what was also really fascinating to me, it’s just that like, it’s also a sign of sometimes when you stray, there was something to be said about asking a question that was outside of the norm that everyone was expecting, and particularly the nominee, who’d been artfully prepped, I think to say almost nothing.
Preet Bharara: I tell you what’s also funny about that, and then we’ll move on. It was Republican senators trying to make their didactic point by asking her open-ended questions, were the five freedoms. They were questions that followed that, she also had trouble following. I think Ben Sasse asked her something like, “Why do we put all those five freedoms, those five rights into one amendment?” It’s like, “I’m not sure where you’re going here.” Those were moments, even though I’ve just criticized the criticism, where she was thrown off her game, as you say, I wonder why no Democratic senator that I saw, didn’t do the same to do open questioning about her knowledge and depth of her knowledge about the constitution, to show, I guess, that there are gaps in her ability that can backfire if she answers every question beautifully, but it is interesting to me that the Republicans trying to prop her up, caught her off guard and unable to answer. Democrats didn’t try that part.
Anne Milgram: Yeah. I think it’s a reminder that they probably … the Democrats probably split up into issue areas amongst themselves and said, “You take the ACA. You take climate change.” They really tread over the known versus pushing beyond some of that, which I think often, and I think it’s true when you question witnesses and interview people, sometimes the most interesting things are the things … and you and I have both done a lot of interviews where people are used to being asked about something and they almost go into autopilot on it. They have answers they’ve given before. They’ve thought a lot about it, particularly someone like her who’s been well prepped. I thought the hearing was far more interesting. It was the republicans when they … and I didn’t agree with the laundry question. Obviously, I’m not condoning it. But like it, they were different questions, and they opened up a different dialogue.
By the way, I don’t that there … I hear you on the risk of like she answers them well, and hits it out of the park. But if they started with the view that I think a lot of them did, which is that there was little that they could do to change the arc of the nomination, then there is a lot of value in trying to see more of who she is and get her out of her pat answers and comfort zone.
Preet Bharara: Moving on from Amy Coney Barrett, although I just mean that for purposes of this conversation, we may not be moving on from her for 40 years, as you said, which is unfortunate. But we spent a little bit of time talking last week about this crazy plot to kidnap and perhaps murder the governor of Michigan, and we were coming up against the end of our time so we didn’t get to spend a lot of time on it and I thought maybe we’d talk about it a little bit more, there was an eighth person arrested by the state in connection with this plot.
One thing that we didn’t talk about, I don’t think last time was this debate over whether or not you call these people who were arrested, now 14 in total, whether you refer to them as a militia, or whether you refer to them as they actually are specifically designated in the state charges as terrorists. We’ve had this conversation before. This language that we use, the rhetoric that we use, terrorism versus militia versus some other phrases that seemed more innocuous, do you think that’s important? Do you think the terminology is important?
Anne Milgram: I do. I think people are right to point it out. Militia is even a word that’s used in the United States Constitution, has this imprimatur being some somewhat lawful or something as part of a regular and sustained militia for the defense of the government, a language. I think … You and I’ve talked about this in prior context, but we don’t call it what it is, which is really domestic terrorism, and it’s really extremist, violent extremist groups. They’re often white supremacist, and as well. There’s different ideologies.
But I do think it’s important. I think the reason you and I have talked about this before, but the reason we don’t call it that is that we don’t have a domestic terrorism statute in the federal government. There is one in the state. The eight individuals here who are charged in the state have been charged with aiding and abetting a conspiracy and terrorism, domestic terrorism. In the federal government, the charges against the six individuals who appear to be the ringleaders are kidnapping, and conspiracy to engage in kidnapping and guns, weapons offenses.
Preet Bharara: Can we talk about the state charges, because they’re interesting to me. I don’t know how many states have a material support of terrorism. I mean, we have material support of terrorism in the international context, and in the foreign context in the federal system. But this goes to the issue of should you be calling them militia, which seems less dangerous and less menacing. Just look at the statute with which they’ve been charged, which says, any person who knowingly provides material support or resources to a person, knowing that the person will use that support, et cetera, et cetera, et cetera, for committing an act of terrorism against the United States or its citizens, this state or its citizens, that’s a crime.
Sometimes it’s important to understand what terrorism is. We throw out these terms. They say terrorism, not terrorism and Tifa. Sometimes people say thugs, sometimes people say militia. Here’s what terrorism means. I think this is a standard definition. An act of terrorism means, among other things, “An act that is intended to intimidate or coerce a civilian population, or influence or affect the conduct of government, or a unit of government through intimidation, or coercion.”
It’s not just a plot to kill someone, harm someone for money, or for some other reason. It’s to try to affect the levers of government, and to intimidate the levers of government or people in a governmental jurisdiction to do something that the perpetrators want them to do. A plot to kidnap and perhaps kill a sitting duly elected governor of a state because of your anger at policies that have been enacted, because you want to change those policies is the very definition of terrorism. Is it not?
Anne Milgram: It is? Look, I think, I mean, one of the more interesting things that I’ve seen since these charges came out was a conversation amongst former federal prosecutors, including our friend Barb McQuade, who was interviewed in the Detroit Free Press and gave a really … she had previously brought a seditious conspiracy case against an extremist hate group. What’s so interesting about that, to me, is that it’s very hard to prove the case ended, I believe, in an in a dismissal by the judge who found that there was insufficient evidence of it. There’s been a lot of conversations about why this is charged as kidnapping. The reason is, because the law, it aligns with kidnapping. It’s just a very straightforward charge.
Unless there is a federal domestic terrorism statute, it’s really … you end up charging something the seditious conspiracy is really hard to prove the efforts to overthrow the government. It is all tied to this idea, which was apparently espoused by a number of the people who were charged of inciting another Civil War. But it’s a really fascinating moment of seeing how the law can define the terms we use. Again, I’ve advocated for domestic terrorism law, we should be clear that the reason in the federal government that the reason it has not come to pass generally is that we do … I mean, we have been so respectful of the First Amendment and obviously we believe that people could be members of a hate group. The line is crossed when people move to incite violence or they move to engage in violent conduct towards other criminal conduct towards someone.
Preet Bharara: I guess we should talk about this in the larger context of what seems to be brewing in the country. This is not just seemingly a one-off. It appears not just about Governor Whitmer. But there’s evidence that was brought to light, I think at one of the court proceedings, that these folks, or some of these folks, some subset of them, also discussed visiting harm upon the governor of Virginia, Governor Northam. Then there are other examples of situations where there are Americans who are thinking about waging acts of violence against public officials, because they don’t like the way they’re handling the pandemic or some other reason.
Anne Milgram: Yeah, absolutely. One thing just to note about these two groups, I mean, one is called the Wolverine Watchmen and the other is the Michigan Three Percenters. It’s not just Whitmer, it’s not just Northam. It’s also police officers. It’s important for people to understand this ideology is extremely anti-government, anti-law enforcement, anti-individuals who’ve been democratically elected to be in charge of government. It is extremist. One of the things that has really struck with me was watching the government released as part of the hearing this past week … they released text messages, as well as videos of the leaders of this group.
You watch them and they’re basically trying to prove to one another, we’re ready for this. They’re literally arming assault rifles, and they’re loading and reloading assault rifles, and they’re basically showing how much destruction they’re out. They all get out of a car and they start firing weapons. This is a very, very serious plot. I think it would be wishful thinking to think that this is an isolated incident of something we’re seeing that isn’t prevalent. I don’t want to … the FBI tracks hate groups and could obviously give the statistics better than you are. But I think it’s really significant. They built IED explosive devices. They tested them. They case Governor Whitmer’s vacation rent. This is a very serious case.
Preet Bharara: One of them bought a taser.
Anne Milgram: Yep.
Preet Bharara: As people understand the law of conspiracy, which is first a meeting of the minds, an agreement to take some action. Most conspiracy statutes like this one, as I understand it, also requires an overt act. There seem to be a number here. In other words, taking some step in furtherance of the conspiracy. Sometimes it’s enough for people to sit around and plot and agree. But if you do that, plus you take actions like do surveillance, and experiment, detonating something, and buying a tool, or some other product to further the conspiracy, like a taser, that might be used in a kidnapping, there seems to be pretty substantial evidence.
I don’t know how much they have on each person. Sometimes these cases, when you have a large group of folks, you have stronger evidence with respect to some and less strong evidence with respect to others. The other thing we should probably talk about, because people may not understand how this works. This investigation went on for some months. Obviously, in a situation like this, you can be worried that the governor was in grave danger for this entire time. Obviously, she was in some. But from my understanding of the court papers that had been unsealed, they had a cooperating witness or a confidential informant within the group. That person, presumably, was monitoring things.
If at any point, there was going to be any immediate action, presumably, law enforcement would have known. We’ve taken the whole thing down. What they did was, and they were able to have the luxury of time to do this, and you don’t always have this, I talked about the circumstances of my book and a number of places, they were able to let the conspiracy unfold long enough that these overt acts were taken, and they have substantial evidence. But my sense, is minimize …
Anne Milgram: Yeah. People ask about this. Yeah. People ask about that all the time.
Preet Bharara: Yes. I don’t want to minimize the jeopardy in which the governor was in. But it seems to me, given how big a deal it was, and who she was, that she was probably pretty safe throughout this, still to bravery on her part. But then it seems like they have this button down.
Anne Milgram: Yes. But we should just acknowledge, this is a tough line and that I think there are a couple of notable points to be made. The first is that there’s clearly a very strong working relationship also between the republican appointed US Attorney, the democratically elected AG, and all the levels of law enforcement, the FBI, the state police, the local police, and I think it’s just really heartening, to me, to see that that they work together so well on something that’s obviously so critical. Also, these are tough situations because having that evidence that they’re buying tasers, that they’re building IEDs, that they’re practicing shooting, that they’re texting each other about … there’s one text message that basically says, “Instead of doing all this to kidnap Whitmer,” I’m paraphrasing, “But basically we should kill her instead.” It’s very dangerous, some violence stuff.
There’s a way in which … if they were just talking, again, there’s free speech protections. The defense would be … they’re just talking. They like to be out in the woods firing guns, but they’re not going to hurt anyone. The government and the agents want it to get to the point where they have sufficient proof that they will actually bring down this organization and the individuals who are doing this plot, and it is a really fine line, because even with an informant, you want to make sure that it doesn’t go too far. It feels to me like they let it go as far as they could go before they took it down.
Again, they’re surveilling her house. They’re surveilling a bridge to blow up. They’re talking about how they could kill police officers who would respond. I mean, it got beyond the talk stage into the deep planning point in this. I think their timing was right, but I kind of agree. I mean, for people outside. I mean, the first question is how much danger was she in? I think the answer is, as long as you let this go on, she’s in some danger, but that it was carefully controlled by law enforcement and the prosecutors.
Preet Bharara: Right. One interesting thing about this is as we watch going forward, particularly Donald Trump loses, our views are going to be a much more serious widespread problem in the country. I noted that the Anti-Defamation League put out some information on one of these groups of, Three Percenters. This was an interesting observation that they made. They said, a lot of adherence to this movement, “Strongly support President Trump in recent years. Because of that, essentially, Three Percenters have not been as active and opposing the federal government directing their IR at other perceived foes, including leftists and Tifa, Muslims and immigrants, because they’re satisfied with the federal government.”
Now imagine that Biden becomes the president. Their hero and white supremacist sympathizer, Donald Trump is gone. Think about all sorts of latent plots that may be … I don’t mean to alarm people, but I think reasonably, you have to suppose that you’re going to see more of this. Not just directed at state officials, but at federal officials, because of how much anger has been stoked by the president and his allies. It’s unfortunate thing.
Anne Milgram: I agree. I think it’s a strong point on the IR toward the both state and federal government and, look, it’s not so distant history, Timothy McVeigh, blowing up the Murrah Federal Office Building in Oklahoma City, killing scores of people and children, and that was an anti-government and anti-federal government action. Again, I think this stuff has to be taken really seriously. I’ve been watching the debates of is Trump the cause? Is he the symptom? I think those debates will continue for many years.
But the thing I believe for sure, is that this is not an isolated incident, and that we have to be vigilant about … and look, frankly, this goes to the importance of federal law enforcement who do have informants, who go up on wires, who infiltrate hate groups, who do really incredible work to try to keep people safe. It’s also this is a tribute to their work that they were able to bring down this organization. But I promise as we’re sitting here that they’re watching countless others.
Preet Bharara: Yeah. Speaking of investigations, one thing we should spend a little bit of time on, because I think in the lead up to the election, the president has made clear that he wants splashy, either reports, and preferably, indictments of people who he thinks went after him in bad faith. He has been saying, by the way, he’s been so unhinged on the campaign trail. He’s literally calling for not just Governor Whitmer to be locked up. There was a chant about that when he was campaigning recently. He’s literally saying Joe Biden is a criminal, he should be locked up, and there are people who would have locked him up a long time ago. It’s just open season on declaring, without evidence, without proof, without process, his political adversaries to be criminals who should go to prison?
Well, some of those expectations are not coming to pass and the president is going to be disappointed. One of those people may remember was this, “unmasking investigation.” People were upset that in the ordinary course, at the end of the Obama administration, when intelligence officials, in the course of their duties are reading intelligence products, meeting reports, of interceptions, conversations, on which someone in America, a US person might be intercepted, they can make a request to have that person unmasked so they can better understand the Intelligence document that they’re reading. There were a lot of instances of that.
By the way, there are thousands of instances of that in the Trump administration as well. But Trump and his allies tried to make something nefarious out of that. The United States Attorney in Texas, John Bash, who has since left office in the last number of days, was assigned the task of investigating whether or not laws were broken, with respect to that unmasking. It should come as no surprise to folks because even when the investigation began, lots of people thought, “Well, I don’t know what the crime would be, even if it was done in bad faith, and there was no evidence of that either.” But what the crime is for in the ordinary course asking for the unmasking of unidentified US persons and intelligence products that you’re reading, but apparently that’s closing, with no report, and with no charges. It’s just one of many instances where I think in some ways the system is working, such that spurious indictment are not being brought, even though there’s a lot of pressure from the White House to bring them.
Anne Milgram: Yeah. I think that’s right. I would note also that there was a congressional investigation led by Republicans that had also found no violations of the law. This looked like it was a manufactured offense that would allow the DOJ spokeswoman to go out and say, “We’re investigating this.” Even I should just step back and say this, also, that we talked about this a lot, but it’s worth just reminding folks that’s not what DOJ does, as a rule when they’re investigating people, they don’t talk about it. They don’t say it publicly, because it’s not fair to the person under investigation, if they’re not charged. If they are charged, then ultimately, there’ll be a public information about those charges. That’s what the department should stand on.
Just the whole public nature of this, we should be alarmed by that just to begin with. Then Bash left, he resigned, there were no charges brought. It’s in many ways, I think, not surprising. But it’s not without cost. I say this sincerely, I think we’ve now seen a number of DOJ employees over the past couple weeks come out and say that either resigned or made statements of how upset they are how political Bill Barr has made the Department of Justice. I think it’s just worth noting that even just having that announcement by the DOJ spokeswoman saying that they’re conducting a criminal investigation into this is problematic and cast this imprimatur a potential criminal violation. It’s not what DOJ does. It’s not what they should do.
I’m not surprised that there wasn’t anything here. But I think, and obviously, I also think what’s interesting is that it’s clear that there was an effort to build a case here, but you have John Bash, Republican political appointees saying “There is nothing here.” Hopefully it closes the matter down. But I still maintain that. This goes to the broader argument about how DOJ has been used for political means to forgive and let off the hook the president’s allies, Stone, Flynn, Manafort, and to really try to persecute anyone who the president has disagreed with, as well as arguing that Democratic politicians should be investigated and charged and so on.
Preet Bharara: In ordinary times, any particular investigation, you give it the benefit of the doubt, because DOJ has, I think, up until recent times, had that reputation, but in the context of a president vocally, from campaign podiums screaming for charges against his political adversaries, that puts every investigation that falls into that bucket. It puts it at issue. I mean, on this unmasking thing, which seems very inside baseball, just to give a sense of how silly it was to make that a criminal investigation.
Here’s some Andy McCarthy, who was no liberal, who was no resistor, who writes at the National Review and alum of the SDNY, and is very critical of Biden and other folks. He tweeted in the last week, “The unmasking issue was never going to result in criminal charges, because as I tried to explain to three and a half years ago, it was not a crime. For the millionth time, not every abuse of power is a criminal violation.”
We can debate whether or not what they do is an abuse of power or not. But even in the eyes of someone like Andy, it was never going to be a crime. Why are people being assigned these criminal investigations? Why are they being forced upon people in the department far and wide, including when it was assigned to John Huber, we should talk about Durham in a moment again, and update folks. All of it has the appearance of political vendetta, as opposed to fair and impartial investigation of the truth, so the proper accountability can be had. I mean, Durham, I’ll start, I wonder what you think.
There was a lot of concern on the part of many folks that John Durham would file some report that would be dubious in and of itself, or file charges before the election and that’s what the president basically has been begging for, and suggesting that if that happens, Bill Barr will go down as one of the greatest Attorneys General of all time. If that doesn’t happens. He’s going to be a regular guy. You and I noted the resignation apparently in protest of John Durham’s deputy, Nora Dannehy, some weeks ago, maybe that had an impact. It looks like here we are 14 days away nothing’s going to happen without before the election, right?
Anne Milgram: Yeah. I feel like nothing is going to happen with that before the election. I feel Durham’s deputy’s resignation really solidified that because she didn’t speak publicly about it. But it was clear that she had raised alarms about the nature of disclosing information on the investigation and that she stepped out. Without making a public statement, she just basically decided that she wasn’t going to allow herself to be used in that way and to be part of whatever was happening. Again, we don’t know the full story. But in so doing, what basically that did was put people on alert. Again, we talked about this before, but she was a political corruption prosecutor. She knows the rules better than anyone about what can and cannot be said prior to an election.
I think she chose to basically pull herself out of the position of compromising her ethics and her integrity. I think the minute that happened, she locked Durham into a box, that if he went forward and made this public statement, this public announcement that it was clear that he would be compromised. He has to be thinking about his long-term reputation as well. Remember, also that this wasn’t charges that they were talking about releasing. They were talking about releasing a report, which is highly unusual. It wasn’t even the final report. It was an interim report. This has been going on since 2016. It’s just impossible, I think, for anyone to understand why I can’t wait till November 4th. I think her leaving sealed the fate of that investigation, and that report for this moment in time.
Preet Bharara: At least at the time. Yeah. Yeah.
Anne Milgram: Yeah. I think that’s really important. One question for you, Preet. I mean, I’ve been getting a lot of questions from folks I know in US Attorney’s offices and a DOJ. The question is, should I stay? My answer is 100% that they should stay in those jobs, that these are unbelievably important government jobs that never in my life have I seen this level of political interference. I do not think if Trump loses the election, it will continue. If Trump wins the election, I think it will escalate and continue. But I feel pretty strongly that we need good people in government who are not political and who are not partisan, who are just trying to do these jobs. I don’t know if you’re getting … are you getting the same calls?
Preet Bharara: I mean, less recently, because I think people wait … I mean, if you’re leaving now on the eve of the election, that doesn’t make a hell of a lot of sense to me. But you want to see if the department is going to be in a position to change for the better, if there’s a change at the top? I got those questions a lot over the last three and a half years, to which my answer was always the vast majority of work that goes on at the department, not withstanding these things that we talk about that are highly charged. It’s still non-political. It’s everyday corruption cases. It’s every day money laundering cases, terrorism cases, not of the kind that we’re talking about with Governor Whitmer, basic Homeland Security type investigations in cases. The rank and file people at the department just keep their heads down and do their work. They’re the best people that I’ve ever met.
You want as many people there who believe in the values of the Justice Department, at least what they used to be and should be again, but you do the right thing in the right way for the right reasons, as people always say, and as I say. If you cede your seat to somebody else, then you’re not making the Justice Department stronger. You’re making it weaker. I do think it’s an extraordinary. Can I use your word? Can I say extraordinary?
Anne Milgram: Yes. Always.
Preet Bharara: I think it’s extraordinary that we have now, I think, three instances of not former DOJ officials, not former assistant US attorneys, but sitting assistant US attorneys, putting in writing their criticism of Bill Barr, you have another one out of California, somebody who’s responsible for prosecuting Duncan Hunter, former congressman. It may not seem like a big deal to folks. But even though the department has a hundred plus thousand employees, I have never seen a time where people in that pretty buttoned down organization have seen fit to write op-eds or open letters criticizing the attorney general. We’ve had other controversial attorneys general before. I don’t know how many more and I think each of those people speaks for lots and lots of other folks who out of concern for their own privacy, and concerned about retaliation are keeping their mouth shut. But it is a very, very widespread feeling that this attorney general is a disgrace, and it’s politicized the department.
Anne Milgram: I agree. People should understand that these lawyers is particularly the ones who are staying in the department or putting their necks out on the line. There is an election coming up. If the election goes in Trump’s direction, I have no question that they will resign or be forced to resign. But yeah, it’s a really important thing. It also … I mean, you and I have said this before, and it almost feels like we say it every week. But this is just so out of keeping with the department that we both know and love and that I very much hope will return soon. But I think it speaks volumes that everybody who … they take … you swear an oath to the United States government. You’re not taking an oath to a political party or political leader and that people feel the need to speak out, really. It says a lot.
You and I had talked about the reporting in the New York Post about Hunter Biden that said that they had … I mean, it’s a very convoluted story, that article basically states that they … Hunter Biden dropped off a laptop at a retail shop to get it fixed in Delaware. Then this laptop falls into Rudy Giuliani’s hands and Giuliani finds on it these photos of Hunter Biden and emails back and forth. The Post writes this story intimating that Vice President Biden had a meeting with someone from the Ukraine that … it’s basically an argument. It’s intended as an October surprise.
The Post ran it without the byline of the reporter, the lead reporter, it was not duplicated by other newspapers, you and I talk about this all the time, you should always be wary if there’s only one source of information and multiple … the other newspapers can’t sort of authenticate that it’s the real laptop, and that the information being provided is accurate. There are just a lot of tells in the report. I think it was carried a lot on Fox News. But it was pretty universally condemned by most journalists and both Twitter and Facebook for slightly different reasons refused to really allow it to go out in the normal way that information would go out.
You and I, and I think it’s just worth saying initially had thought to not discuss it up until the point that there was more conversation about how it was being discredited. Because it just wasn’t clear that it just felt like a very problematic story with a lot of questions about whether it was real, how the laptop got into Giuliani’s hands. There’s some information about the FBI issuing subpoenas to that computer dealership to try to figure out whether this relates to Russian disinformation campaign or even could potentially relate to the hack of the Burisma emails earlier in January. Of course, Burisma was the company that Hunter Biden sat on the board of. I think it’s worth talking about how this was intended as an October surprise that feels like it’s fallen very flat to me.
Preet Bharara: Just the main features and contours of the story, plus the timing, plus the protagonists make it feel just so absurd. Once again, script writers going off the deep end, and getting way drunk when they were writing the final episode of whatever series, a hell series we happen to be living in. The fact that it’s Hunter Biden, the fact that we’re just days away from the ending of the election, the fact that it’s Rudy Giuliani, the fact that … I think you didn’t mention this yet, the intelligence community has serious concerns that Rudy Giuliani is a victim of a Russian disinformation campaign. Then all of the journalistic alarms that you discussed make this whole thing nuts.
Now, does that mean that things are impossible? I don’t know. But we can’t go into the final fortnight of the election credulous, again, when in 2016, we had the same issue with last minute laptop, what was on it? Was it relevant? Did it have anything to do with something that was important or not? I just want to focus and emphasize what you said about the reporting. What’s bizarre to me, Rudy Giuliani is the one who comes into this information somehow. He has credibility problems, to say the least. He basically says he took it to the Post. He was saying he thought other outlets might vet it more. Maybe he was right about that.
He takes it to the Post and even the Post, the main reporter who wrote the article, Bruce Golding, I happen to know Bruce Golding. He’s a pretty good reporter, he covered my office. Every press conference I ever did back in the time when I was the US Attorney, he was there, and he wrote the story on almost all the cases, or many of the cases that we brought when I was in that position. He decided, it’s not just that the paper didn’t decide not to put his byline on the article. He did not put his byline in the article, because he had issues with the story. Query, why he’s writing a story at the conclusion of which he’s so concerned about the reporting that he doesn’t want to put his name on it. I don’t get that.
Anne Milgram: I thought about that, too. But I have an argument on that, which is that I bet that it came in as these things do to a newsroom, and that he was assigned to run it down and see what he could find. At the beginning, you’re not clear what it is if it’s real or not. He, probably is someone who felt like … and also we should note that the Post is known for its more aggressive and salacious articles. They’re willing to write things that even when other newspapers might know the full details of something, they don’t always put out those details if they don’t feel like before the journalistic cost.
Preet Bharara: Yeah. It’s a lower bar.
Anne Milgram: Yeah. It’s a lower bar.
Preet Bharara: It has lower standards. But I will say, and this goes to the question of how Twitter and social media platforms handled it. No. It’s considered a mainstream periodical. It’s not a fringe periodical. It is a tabloid. Some people say that the Daily News is also a tabloid. You can at the same time believe that it was shoddy reporting, that this information is not verified, that it should have seen the light of day.
But that a blanket prohibition against the re-tweeting of an article that appears in something like the New York Post is itself dangerous. By the way, the other thing that’s fascinating to me is that there are reports from media. The Fox News itself was the first place that Giuliani shopped the story to, and they had enough concerns about the provenance of the laptop and everything else, that they didn’t run it, which is curious for a couple of reasons. One, after New York Post ran it, Fox News commentators and hosts had no problem running with the story even though if you believe the other-
Anne Milgram: They just were willing to be the primary source. They were willing to take it. Yes.
Preet Bharara: Even people like Bret Baier. He’s one of the Fox News’s top news anchors. He himself said on their “Let’s say just not sugar coated, the whole thing is sketchy.” He said, “You couldn’t write the script in 19 days from an election. But we are digging into where this computer is, and the emails, and the authenticity of it.” Given the experience of 2016, and quite frankly, the experience of the whole … every day of the last four years, people need to be very careful about jumping to conclusions on things without proper vetting. This clearly what’s not.
Anne Milgram: Look, that’s what I think it is. I mean, I think that the journalist not being willing, he ran down a lead, and it’s clear that what he found he didn’t think was sufficient to warrant publication that says a lot. It’s clear that there are a lot of questions. I do think, look, this is it is a legitimate, and it’s an important thing for people to basically say to members of the media, obviously, you’re not going to disclose your sources. But to require, and particularly the journalists … we don’t require. We basically let journalists protect sources. But usually, the norm, and it’s a really important norm is that the journalists and the art and the paper publishing it have spoken directly to sources. They have authenticated it. They believe that the material wasn’t from a hacked computer. All these things that matter.
Again, I think the fact that also Giuliani’s own words of not wanting anybody to really vet it, he just wants somebody to take the stuff and put it out. There’s also something in the Post article that should raise a lot of alarms for people, which is there’s this thing about an email that was allegedly sent to Hunter Biden. It’s really, really, it’s even sketchy the way it’s written in part. We should also note that the vice president’s staff basically said, “Look, we checked his calendars, there was never a meeting.” What the article says that Vice President Biden had set up a meeting and there was no such meeting. There are just huge reasons to question its veracity.
I think, look, this is what Giuliani has been doing. He’s been out there. Trump asked Russia to hack Hillary Clinton’s emails. Rudy Giuliani has been out asking Russia for assistance with the election, it appears, and there’s questions about whether he’s being used by Russian intelligence sources that are being vetted. It’s really serious stuff. Then all of a sudden, in October, we get this. I think there was a lot, a lot of skepticism, rightfully so.
Preet Bharara: This is not going to stop President Trump from bringing it up to what may yet be a debate on Thursday evening.
Anne Milgram: Yeah. Look, they got what they wanted. We should also be clear this that Giuliani and Trump got what they wanted in one sense, which is to your point, Fox News can go out and talk about it. Some of the journalists won’t. But a lot of them will basically say “Look, the New York Post published this.” It becomes a like “legitimate news source” for them to use. Can I read you something that I’ve read that I thought was very interesting on the different take on the Hunter Biden thing? It was written by Shawn McCreesh. He was actually generally in New York Times writer but was writing for Graydon Carter has a publication called Airmail. McCreesh writes, the title is New York’s Hottest “It Girl?” Hunter Biden.
The quote is, “This was the week Hunter officially became the full-on Tara Reid of American politics, and the whippersnappers who run your favorite magazines. Nearly all of them disillusioned diehard Bernie Sanders supporters at last found something to like about lame Old Joe, namely his son.” I think and there are some pretty classic quotes in there. The New Yorkers, Naomi Frye tweeted, “Get Hunter in the White House, the president having a hot troubled son is a net positive in my book.”
I think there’s been a lot of back and forth on the article. I wondered what impact it will have. I think it can impact Trump’s base, obviously, and a significant section of the population but I think it’s largely been discounted by the widestream media. If anything, it’s come to the point where … I’m reading the funnier parts of the McCreesh article. But his point is that Hunter’s relatable that him suffering from drug addiction, and having had a troubled past in some ways makes him more sympathetic in some ways to young people.
Preet Bharara: Not just him, but also his father. Some of the messages, I don’t know, if they’re accurate or not. Between Joe Biden and his son include Joe Biden waking up first thing in the morning, and instead of tweeting some nonsense, like the president does, it addresses Hunter, as my beautiful son, good morning, my beautiful son. People are like, how is that something bad. It’s showing the parent who has unconditional love for his son having lost his other son, just in recent years. I’m not sure what the strategy is here with respect to some of this, on top of the sketchiness of the whole thing.
Anne Milgram: The Airmail publication is not the only one that was … that there’s a little bit of humor around related to the Hunter Biden story. Last Thursday, Twitter basically that … the New York Post had published the Hunter Biden email story. Then the next day, Donald Trump tweets out a link to another article from a publication called The Babylon Bee. Trump’s tweet says, “Twitter shuts down entire network to slow spread of negative Biden news,” via @Babylon Bee. Trump goes on to tweet, “Wow, this has never been done in history. This includes his really bad interview last night. Why is Twitter doing this? Bringing more attention to sleepy Joe and Big T,” which people at first thought he meant himself, he actually meant big test.
Preet Bharara: Big T.
Anne Milgram: Big T. This came out of Twitter had a lot of users, I think you included had lost access to their feeds last Thursday. The day after, Trump is tweeting out this article from the Babylon Bee saying that like Twitter shut down their whole network because there was a lot of negative Biden news including this story about his son. But Preet, what is the Babylon Bee?
Preet Bharara: The Babylon Bee, as I understand it, is a conservative onion. By conservative onion, I’m not talking about the actual food product. But the onion satirical newspaper so the Babylon Bee article was not serious. Trump, who does not understand it seems to me irony, sarcasm, humor really although some people think he has a sense of humor, forwarded on to whatever tens of millions of Twitter followers he has this article that was tongue in cheek.
Anne Milgram: It reads, “In a last ditch effort to stop negative stories about Joe Biden and his family from spreading. Twitter shut down its entire social network, Thursday. After seeing account after account, tweet out one particularly bad story, CEO Jack Dorsey realized he had to take action. Dorsey smashed a glass box in his office reading, beak in case a bad publicity for democrats. Inside the case was a sledgehammer for smashing Twitter servers. Dorsey ran downstairs and started smashing as many computers as he could, but needed to ask for help, because the hammer was pretty heavy. None of the programmers could lift the hammer either. But eventually, they managed to program a robot to pick up the sledgehammer and smash the servers. After hearing, the Twitter employees talk about critical theory, the robot got woke and began attacking all the cis white males.” That’s the tweet. That’s the story …
Preet Bharara: It’s kind of funny.
Anne Milgram: … that the president re-tweeted. It’s funny sad, and funny scary a little bit too is that the president is just re-tweeting things on Twitter. If he read it, then he obviously missed a lot of clear indications that it was a hoax, a joke.
Preet Bharara: Look …
Anne Milgram: That it was fake news freak. That’s real fake news.
Preet Bharara: I hate to go from funny to serious and then end. But he’s been re-tweeting a lot of things that are very dangerous. This is I guess, kind of funny. But he’s been re-tweeting QAnon, which is becoming a growing force. There’s going to be a QAnon member of congress, probably, taking a seat in 2021, who believes in a lot of terrible things and are going to hurt this country in a major way. When he was asked about at the town hall last week, why are you the president of United States posting this stuff? It was a re-tweet. As if the fact it’s a re-tweet going out to 80 million, I don’t know how many followers he has at this moment, makes it okay. It doesn’t.
Anne Milgram: By the way, when people say on Twitter or re-tweet is not an endorsement. I’m sorry, it is an endorsement. You can say it’s not but if the president re-tweets something he’s endorsing, sharing it with people. He puts his imprimatur on it. He puts his stamp on it. I do think he has to be responsible for that and for obviously spreading … I mean clearly spreading misinformation which the crazy part is he’s always accusing other people of spreading misinformation. He’s literally tweeting out a satirical article about Hunter Biden and Twitter.
Preet Bharara: Until next time in …
Anne Milgram: Fourteen days, Preet, till an election. Everyone please vote. Talk to you soon, Preet.
Preet Bharara: Thanks Anne. Talk to you.
Anne Milgram: Please send your letters and questions 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, Noa Azulai, Jake Kaplan, Calvin Lord, Geoff Isenman, Chris Boylan, Sean Walsh, and Margot Maley. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider Community.