Preet Bharara: From Cafe, welcome to Cafe Insider, I’m Preet Bharara.
Anne Milgram: And I’m Anne Milgram.
Preet Bharara: Hi Anne, any aquariums this week?
Anne Milgram: No aquariums this week.
Preet Bharara: Wow.
Anne Milgram: Little pumpkin, no picking, I don’t know, does it count as pumpkin picking if you go to the grocery store and buy one?
Preet Bharara: No, it does not.
Anne Milgram: Pumpkin acquisition.
Preet Bharara: How could that count? It is pumpkin picking.
Anne Milgram: We were going to pick and then it rained.
Preet Bharara: Right, pumpkin purchasing. So can we talk about Twitter for a second?
Anne Milgram: Yes.
Preet Bharara: So there’s a reporter who did a profile of Mitt Romney, named McKay Hopkins. And it’s a nice big profile in The Atlantic and there’s a lot of reporting on the fact that Mitt Romney admitted that he has a secret Twitter account where he lurks. And based on the information that he gave, number of followers and some other common sense things, the same person who found once upon a time, Jim Comey’s secret Twitter, Ashley Feinberg at Slate, found the secret Mitt Romney Twitter account.
Anne Milgram: It’s going to be a whole new class of journalism school. How to find secret Twitter.
Preet Bharara: Well, and how to keep it secret and apparently he has this Twitter account in the name, Pierre Delecto.
Anne Milgram: I don’t know why that name makes me laugh.
Preet Bharara: It’s kind of funny, @qaws9876. So I thought that was kind of funny. Follows 702 people.
Anne Milgram: That’s a lot, actually.
Preet Bharara: Yeah.
Anne Milgram: Yeah, how many followers does he have?
Preet Bharara: Guess who one of those people he follows is?
Anne Milgram: Donald Trump.
Preet Bharara: Me.
Anne Milgram: Oh, Preet, congratulations.
Preet Bharara: Mitt Romney’s secret account, I’m kind of tickled by that.
Anne Milgram: Do you follow him? Not to put you on the spot.
Preet Bharara: So I tried, because now he has made his account private. And so I put in a follow request, which is pending.
Anne Milgram: Oh. Your application is pending.
Preet Bharara: With Mitt Romney my application is pending.
Anne Milgram: Interesting.
Preet Bharara: So I don’t know, it’s a lot but it’s not that many.
Anne Milgram: Do you know what’s funny? I have a secret Twitter account.
Preet Bharara: You have a secret Twitter?
Anne Milgram: I do.
Preet Bharara: I would not reveal anymore information about it.
Anne Milgram: I never tweeted from it. I had one years ago before I was sure if I would ever want to tweet and I just followed news and such.
Preet Bharara: Right.
Anne Milgram: I’m not telling you anymore.
Preet Bharara: Here’s my question, I found out about another Twitter follower yesterday as well. And I’m wondering which one you think is cooler?
Anne Milgram: Okay.
Preet Bharara: So we got the Mitt Romney.
Anne Milgram: Yeah, pretty great.
Preet Bharara: A.k.a, Pierre Delecto, and then Ben Stiller began following me.
Anne Milgram: Oh.
Preet Bharara: That’s cool, right?
Anne Milgram: Also pretty cool, yeah.
Preet Bharara: Look, these are the small things that make me happy.
Anne Milgram: Yes.
Preet Bharara: All right, should we talk about serious stuff? Serious stuff happened this week, I think it did.
Anne Milgram: Yes.
Preet Bharara: First should we talk about the Acting Chief of Staff, Mick Mulvaney.
Anne Milgram: I don’t want to call him acting. You know why I don’t like the acting thing?
Preet Bharara: Why? Doesn’t make sense.
Anne Milgram: Yeah, it’s Donald Trump’s choice to make him an acting-
Preet Bharara: There’s no Senate confirmation.
Anne Milgram: Yeah and he could pick someone tomorrow. And so it feels to me when we say, he’s acting as though he’s less responsible as the chief of staff but the bottom line is he’s the chief of staff. He’s been the chief of staff for 10 months and to me there’s a lot of tough things about being acting but here it’s a choice.
Preet Bharara: I totally endorse that position. For example, am I your acting cohost or am I your cohost?
Anne Milgram: No, you’re my cohost.
Preet Bharara: Right, full on.
Anne Milgram: Full on.
Preet Bharara: About 10 months too, 11 months.
Anne Milgram: And Donald Trump, you can’t have everyone or a lot of people on acting positions and then be like, oh, they’re just acting. I mean, he’s the chief of staff for all purposes.
Preet Bharara: I mean the cabinet level positions the person is acting because it means that they don’t have Senate confirmation yet, that’s different.
Anne Milgram: Yeah, but if you choose not to nominate someone and keep your acting in for a really long time, you’re also making a choice. Yes, it’s a little different but I sort of thing we’re making too much of the acting, so anyway, Mick Mulvaney, yes, the head of-
Preet Bharara: The chief of staff.
Anne Milgram: Yes.
Preet Bharara: And he’s got like five other jobs too.
Anne Milgram: And the head of Office Management and Budget.
Preet Bharara: One job that maybe he’s not good at acting at, spokesperson.
Anne Milgram: Yes.
Preet Bharara: Not so good at the spokeing.
Anne Milgram: Agreed.
Preet Bharara: Mick Mulvaney. So two things happened, we’ll go through each of them because I think they’re important. And actually relevant I think legally going forward and will be of consequence to the House. One is the Trump Doral G7 announcement. And the second is what he had to say about quid pro quos. On Doral, we’ve been talking for awhile about how Donald Trump wants to direct business to his own properties and it’s one thing that people don’t like that he goes to his properties virtually every weekend at taxpayer expense and Secret Service has to go and everything else. But in this case, I think people are correct to say, when Donald Trump announces that the next G7 in June of 2020 will be at his Trump Doral property, that is essentially being involved with personally and directing business to yourself on a no big contract. Which if anyone else did that, you’d get in trouble. For example, when you were the attorney general of New Jersey, if you had had a bail bonds business-
Anne Milgram: Yes, I did not but yes.
Preet Bharara: You sure, you didn’t have a secret thing?
Anne Milgram: I’m positive.
Preet Bharara: If you did and you directed people to send defendants who were under arrest and needed to make bail to your bail bonds business, would that have been unethical?
Anne Milgram: Yes, even if I said, I’m going to do it at cost, which is what the President said. Which what is that even mean?
Preet Bharara: I don’t know what it means.
Anne Milgram: Yeah. And there’s so many things that are wrong with this. The first is that it’s President’s property and he is self-dealing. And he had made a commitment that they wouldn’t use his property for anything when he was running for office. And at the end of the day, it’s corruption to send it to yourself. Even if he said, I will take no money, there is a brand benefit. You’re making foreign governments pay money ostensibly, which we’ll talk about the emoluments clauses of the Constitution but there’s a foreign emoluments clause saying that the President can’t accept anything of value essentially from foreign governments. He can’t take a title, he can’t take money. And there’s a domestic emoluments clause saying that the President also cannot benefit financially from getting anything other than his salary as president.
Anne Milgram: There’s just a huge problem with this and what is almost most astonishing to me and I wanted to ask you about this, is that the President doubles down a lot. So he’s doing something wrong or he’s doing something that crosses a norm or a law or an ethics rule and then he goes even deeper. We’ve been talking about the Doral, he made mention of it over the summer, there was a huge outcry against it and then he does it.
Preet Bharara: And then he does it. But separate from what you’re saying about it being self-dealing, the way in which it came about makes it even worse. Because as you said as you referenced during the campaign, he was not going to be involved in his business. I mean, one of the reasons he justified not divesting himself, “I’m not going to be involved.” And here, he’s basically boasting about being involved, and saying that he was part of the decision making. He basically directed it. It would still be bad and still be awful and still should have been canceled if it was some independent process of him and he holed up in the White House and let other people decide. That’s still I think bad and I still think has ethical problems and consequences. But here he is basically saying to the world, this is where I want to have it. And what do you think the underlings do when they’re deliberating over where to have it? And then they gave all these reasons including-
Anne Milgram: That are all pretty textual.
Preet Bharara: It’s near the airport, yeah.
Mick Mulvaney: And it became apparent at the end of that process that Doral was by far and away, far and away the best physical facility for this meeting. In fact, I was talking to the one of the advance teams when they came back and said, “What was it like?” And he said, “Mick, you’re not going to believe this but it’s almost like they built this facility to host this type of event.”
Preet Bharara: Meanwhile, this is an amazing thing that I see over and over and over again. I think people are getting sick of it, finally. Then when President Trump changes his mind and blames the Democrats on it, when it’s clear that he understood that this was a terrible idea and Republicans wouldn’t countenance either, I saw people supporting Trump on social media by saying, well, the real reasons are it turns out it’s not a great location because of the heat, because it’s too close to the airport and you have planes flying overhead and you can’t close out the airspace. Trying to justify why this was not a good place when Donald Trump had people come forward and say, essentially, Mick Mulvaney had said this-
Anne Milgram: It’s the best place.
Preet Bharara: It’s the best place. It’s as if this place was built for the G7.
Anne Milgram: The funny thing about the weather is that the weather is pretty similar in the summer in Florida, so nothing has changed about that. The weather is always kind of hot and sticky-
Preet Bharara: It’s a little hotter, it’s a little hotter.
Anne Milgram: Yeah, not my favorite place to be in the summer. But the fascinating part about this is I was thinking, I don’t know if you have a view on this but it does feel to me like, in a lot of administrations the president is surrounded by people who generally are strong and there’s a little bit of a check on the worst impulses and I’m not saying Trump is first president to have bad impulses but there’s usually a process-
Preet Bharara: But he has the worst impulses.
Anne Milgram: Yes, he has the worst. But there’s also usually a process that is built around the president to make sure that there’s … terrible ideas just don’t get done. And here it feels like Trump says it, this is a terrible idea both legally and frankly, politically. It just feels to me like, this is the why buy trouble.
Preet Bharara: Can I interrupt here, so we can do a quick aside, because you’ve raised the issue being able to prevent Donald Trump from going forward on his bad impulses, and it occurs to me that we should pause on this discussion of Mulvaney and briefly consider the letter that Donald Trump proudly sent to President Erdogan of Turkey. Speaking about impulses that are not prevented.
Anne Milgram: Yes, well-
Preet Bharara: Are you going to read this letter for us? We have gotten some requests, we now get requests. In the same way famous musicians get requests for their best songs or covers, we now get requests on the Twitter. And by the way, can I say once again, can I do a disclaimer? Anne and I laugh, it’s not funny, it’s terrible what’s happening with Turkey and Syria is terrible and awful but I can’t live my life unless I can laugh a little bit at some of this stuff. So please bear with us. So it’s a letter that the President sent to President Erdogan, that was then revealed some days later. I think it’s been reported that when the President met with top Democrats in the White House, he was proud of the letter and revealed it to them to show how strong he was. And how he’s not going to take any guff from that Turkish guy.
Anne Milgram: That’s right and Preet, I mean, just to go back to this, I didn’t believe it was true. You texted it to me and I’m looking at-
Preet Bharara: I did.
Anne Milgram: … our text back and forth and you sent it to me before it had sort of really broken hugely in the news, and I did not believe you. And I trust you of course, but it was my first reaction was this is impossible. And just before I read this, also to the point of whose in charge, in a million years as a staff member for any member of Congress, senator, president, you would never let this letter go out, I think.
Preet Bharara: No, you would not.
Anne Milgram: You would not. So this is a letter sent by President Trump to the Turkish President Erdogan. And it’s from Donald Trump, it’s on White House stationary, which is the one thing I thought made it look very official. “Dear Mr. President, Let’s work out a good deal! You don’t want to be responsible for slaughtering thousands of people and I don’t want to be responsible for destroying the Turkish economy and I will.”
Preet Bharara: Are you using your ominous voice?
Anne Milgram: I’m getting ready for Halloween. “I’ve already given you a little sample with respect to Pastor Brunson. I have worked hard to solve some of your problems. Don’t let the world down. You can make a great deal. General Mazloum is willing to negotiate with you and he is willing to make concessions that they would never have made in the past. I am confidentially enclosing a copy of his letter to me just received. History will look upon you favorably if you get this done the right and humane way. It will look upon you …” This is the part that really gets me. “It will look upon you forever as the devil if good things don’t happen. Don’t be a tough guy, don’t be a fool. I’ll call you later.” That’s my other favorite part.
Preet Bharara: The, I will call you later.
Anne Milgram: I’ll call you later.
Preet Bharara: “Sincerely, Donald Trump.”
Anne Milgram: “Sincerely, Donald Trump.”
Preet Bharara: It’s like you do this whole threatening thing, it’s like, hey, you up?
Anne Milgram: Catch you soon.
Preet Bharara: Miss you.
Anne Milgram: I also love the erratic, like the encouraging, let’s make a deal to I will crush you. I will crush your economy.
Preet Bharara: And I don’t think he’s followed through. All right so should we go back to the main theme, topic-
Anne Milgram: Yes, let’s go back to Mick Mulvaney.
Preet Bharara: To Mick Mulvaney.
Anne Milgram: Who, by the way, let that letter go out as chief of staff.
Preet Bharara: Yeah, I think nobody can stop the President when he wants to do something. And then buy the way, as we see with Trump Doral, they’re forced to go out there and say it’s wonderful, it’s great, it’s a perfect conversation. It’s a beautiful conversation. It’s a perfect resort. It’s built for the G7. And then Trump pulls the rug out from under them, they just look foolish. I’ll say, I’ve been thinking about this more. There’s one dimension in which you criticize the people who work for the President who are not adhering to proper ethical standards and for enabling him in various ways. But there’s something even more fundamental depending on how much self-respect you have. What I don’t understand is, the people who continue to work there. And this is not even about ideology or policy or laws or anything else, it’s about simple self-respect.
Preet Bharara: And if you have a president or any kind of boss who humiliates you on a regular basis, I don’t understand how you keep coming to work. Right, that happened with Jeff Sessions, Jeff Sessions, whatever you think of him, he was humiliated publicly by the President of the United States on a regular basis, kept coming to work.
Anne Milgram: Yeah, by some accounts still defends the President. One of things I’ve been thinking a lot about is that it really is a terrible thing that one of two things is happening and maybe both. One is that the President is completely running the show without any input or listening to other folks. The other, which I think is equally possible, is that they’re all a little bit tone deaf. The idea that you would release this letter and think it is positive in showing your strength as you abandon the Kurds in Syria, it feels to me just beyond belief. There’s something wrong that’s happening. And to your point, also look, I’m a big believer in government that … One of things that’s critical is that when you work for someone you have to have a voice, you have to be heard and then whatever decision gets made, you adopt that decision like it was yours as long as it’s ethical and lawful and fair.
Anne Milgram: It’s not to say that you shouldn’t run 100% behind the lead decision maker even if they make decisions you disagree with, as long as you’re heard and those decisions are lawful and valid, that’s what you do. This is the complete opposite of that. It also appears that the President just goes out and says stuff and his staff, it’s a completely different function that staff has ever had. They now have to go out and create a policy around what he said, versus having a process that creates a policy that the President announces. It’s the reverse.
Preet Bharara: It’s very parallel to what George Conway and I talked about with respect apparently some editing fiascos that they had on The Apprentice. Where they would tape for hours and hours and hours and he said, Donald Trump would then fire someone on a whim and it turned out it was like the best person. And so they’re like, oh shit, he fired the guy and that was the person that had the best business ideas. So they would have reverse engineer that decision.
Anne Milgram: To make the person look bad?
Preet Bharara: Yes, and take out the good stuff and make other people look worse, that was a T.V. show. And you see that’s happening-
Anne Milgram: In the United States of America.
Preet Bharara: That’s happening here. So then what do you make of the fact that Donald Trump very famously doesn’t back down from anything. I can count two significant things on which there has been some retreat. The first was, the separations at the border, which still have not been solved but-
Anne Milgram: And he’s still doing it but to a much lesser extent. It’s different but he’s still doing it.
Preet Bharara: Because of the outcry.
Anne Milgram: Yes.
Preet Bharara: And then there’s this thing. And the thing I think about this thing is it was really simple, it was not a partisan issue, it was easy for the public to understand. And you had members of his own party, he doesn’t care what any Democrats think or progressives think, but you had a bunch of people and the reporting was behind the scenes they were telling him, you need to undo this. Because it just looks like blatant self-dealing. And I really feel that people will forgive lots of things with respect to someone whose points they believe in or they otherwise support but blatant self-dealing, I know that from my public corruption cases, people just can’t abide it.
Anne Milgram: Yeah, it’s corruption. I mean, if it looks like corruption and smells like corruption, and walks like corruption, it’s corruption.
Preet Bharara: It’s a duck.
Anne Milgram: It’s a duck. And that feels to me like this one was simple in a way that there are a lot ones that the President can also spin, this one to me felt impossible to spin. At the end of the day, the President’s resort was getting the business.
Preet Bharara: And yet people tried to spin it.
Anne Milgram: Yeah.
Preet Bharara: And then not only do they try to spin it, and the reason we’re spending a lot of time on this I think is because it’s just a microcosm of how the White House works. Not only did they spin it, they when the President says otherwise, they spin it the other way around and they try to blame the Democrats. And they try to blame the media.
Anne Milgram: Do you know what’s bad about this whole thing, Preet? It’s both a victory in many ways because the President was about to do something corrupt but it also shows you that Republicans have power over the President and that they’ve chosen not to exercise it. And that disturbs me because it’s clear that they sent the message to him, we’re not with you and he reversed not because the media and crazy Democrats as the President calls them were saying something but because his own party was going to go against him on it. And so it shows the power of Republicans right now to actually change how the world is working and the fact that many of them are not doing that is deeply troubling because it’s not enough for them to say we can’t.
Anne Milgram: And by the way, your friend Mitt Romney has said things like this also, the Senate is powerless. People have sort of argued Congress doesn’t have that much authority, but you look at this one small example, people who are politically elected as Republicans having tremendous influence over the President. That’s also by the way true of family separations where there were Republican members of Congress and governors who came out against the family separations. And there was sort of an overall cry against it. The President can be influenced, it just requires that the Republicans do the influencing.
Preet Bharara: One or two more points on the Doral issue. I think every time Mick Mulvaney opens his mouth, he says something that is really harmful to the President, which I’m not saying he should stop doing that because I think it’s speaking the truth about the President, how he thinks about things. He had this extraordinary interview with Chris Wallace on Fox News, I don’t know why these guys continue to go on with Chris Wallace by the way, because they never come out looking good.
Anne Milgram: I agree.
Preet Bharara: Stephen Miller, Mick Mulvaney, anyone else so I guess maybe they get points for trying. And he’s trying to explain what the President was thinking here and why he was personally involved. He says essentially the President thinks of himself as in the hospitality business and Chris Wallace is like, dude, he’s the President of the United States. It’s not a side gig.
Anne Milgram: Right.
Mick Mulvaney: The President isn’t one for holding back his feelings and his emotions about something. He was honestly surprised at the level of pushback. As the end of the day, he still considers himself to be in the hospitality business and he saw an opportunity to take the biggest leaders from around the world and he wanted to put on the absolute best show, the best visit that he possibly could …
Preet Bharara: And Mulvaney kind of revealed an enduring truth, that the President really doesn’t fully think of himself as the president and separate from his business. It’s all the same thing. He thought that was a way to explain away in good faith, in a good natured way why the President did this thing.
Anne Milgram: But it makes it worse.
Preet Bharara: Much worse.
Anne Milgram: Yeah, I agree with that. I agree with that. It’s also sometimes their defenses, it’s really hard to understand what they think is going to come of that. If the President wants to be in the hospitality business, he doesn’t have to be the president. It’s also not that complicated. If you want to pitch for business of the G7, you are not President of the United States, and you pitch for business at the G7.
Preet Bharara: Sometimes the explanations are true and that’s damaging to the President because it shows what’s really going on. And sometimes the explanations are patently false and ridiculous like when they say the reason he called President Zelensky from Ukraine was because he cared about corruption generally and not as we now understand and appreciate, he cared about specifically having dirt on his main political rival.
Anne Milgram: One thing, the last thing I’d say about Mulvaney, and then we should talk about what Mulvaney said about the quid pro quo, he sounds to me like he parrots the language and views of Donald Trump more than almost anyone else who speaks on behalf of the President. And so one of the interesting things is that if you sort of took Mulvaney out of it, it could have been Donald Trump giving a quick presser on his way to catch his flight somewhere. It sounded a lot like Donald Trump and the way that he frames things and the arguments he uses. So he’s a little bit in the Trump bubble, and so I agree, he does a terrible job. It was an outrageously bad press conference. But it’s also very similar I think to the arguments that Donald Trump himself would make.
Preet Bharara: You know who I think is very diminished, more diminished than others, Marco Rubio, who once upon a time I think had a good beat on the President and what he was like. And he sort of blithely said, “yeah, it’s good for Florida. Why not? I don’t care much of it.” And you would think the Republicans would get the message after awhile when they defend the President and they come with silly excuses like for Trump Doral or anything else and then they get left holding the bag. Maybe the next they won’t do it. And maybe that’s a little bit what happened with Trump Doral. There was some people like Rubio, who was like, nothing to see here, this seems wonderful and fantastic and great for Florida. But there were others who I think have learned the lesson, we not going to defend something that’s indefensible, especially if it’s going to be canceled and then we look very silly.
Anne Milgram: Yes, it also is to your point that we’ve started to see members of the public going to these town hall meetings and asking their members of Congress these questions. And I think it’s an impossible question to answer. And also we should note that the Trump Doral has never been selected before for the G7.
Preet Bharara: It has never been selected before.
Anne Milgram: If it was really the perfect place, you would think it would have been at the top of the list before. And so I’m not saying that they can’t pick a new place, but there are so many difficulties I think in arguing for it.
Preet Bharara: Even though it was made for the G7?
Anne Milgram: In August-
Preet Bharara: It seems to have been.
Anne Milgram: Florida, yes.
Preet Bharara: All right, so quid pro quo, Mick Mulvaney comes out, does a briefing and basically says that one of the reasons why we withheld the funds was that we wanted them to do an investigation with respect to the DNC. This is talking about Ukraine. And then everyone freaks out, including Republicans, and by the way this is very telling, including the White House folks not for attribution.
Anne Milgram: The lawyers.
Preet Bharara: And then the lawyers for attribution. Jay Sekulow, who basically defends everything the President does and people around the President does, says we were not involved in preparing for that briefing in any way shape or form, which I thought was an interesting articulation of their involvement. Not, it’s not true, but we weren’t involved. As if-
Anne Milgram: This is in our defense, right?
Preet Bharara: As if the sin was-
Anne Milgram: We’re not adopting this.
Preet Bharara: The language as opposed to the truth of it.
Anne Milgram: Yes, and then the Department of Justice freaks out.
Preet Bharara: Yes.
Anne Milgram: And we’ll talk about that separately in a second but issues one of the few statements they’ve issued on any these matters saying, it’s news to us that this had anything to do with any investigation that we may be conducting into the 2016 election or the origins of the Mueller investigation. This moment last week and I don’t get whips all that much even though the defenses keep changing, it’s not surprising in some ways that the defenses keep changing. But this one to me, was unbelievable. It was from the President and his surrogates saying repeatedly, “there’s no quid pro quo” to, “yeah, there’s a quid pro quo and we’re proud of that quid pro quo.”
Preet Bharara: Get over it.
Anne Milgram: Get over it and we do all the time.
Preet Bharara: He said, “Get over it.”
Mick Mulvaney: If you read the news reports and you believe them, what did McKinney say yesterday? Well, McKinney said yesterday that he was really upset with the political influence in foreign policy. That was one of the reasons he was so upset about this. And I have news for everybody. Get over it. There’s going to be political influence in foreign policy.
Anne Milgram: And this made me feel a little like the sort of analogy I was thinking a little bit about, it’s not perfect but you tell your kid you can’t have cookies. You hear the jar break or something fall, you go into the kitchen, your child has chocolate all over their face. And you say, “Did you eat a cookie?” And your child says, “No. I didn’t eat a cookie.” Or your child says … like there’s some range of excuses. This is the equivalent of your child being like, “Damn right I ate a cookie. It was delicious, it was my favorite kind of cookie. And I’ll eat again tomorrow.”
Preet Bharara: Get over it.
Anne Milgram: Get over it. It’s so bold and outrageous to be … it almost made me stop in my tracks.
Preet Bharara: I like the cookie analogy but I really prefer when you do analogies involving penguins.
Anne Milgram: It’s like you stole a penguin.
Preet Bharara: Damn right that’s my penguin. I think that’s actually the same analogy we used last time.
Anne Milgram: But think about, it’s really an astonishing thing. There are a couple sort of high level pieces also that are worth focusing on. It’s kind of hard to argue that you have a valid defense when your defense keeps changing. And when part of your defense is, I had every right to do what I did. And it is a little bit consistent with the President saying it’s a perfect call. There is sort of a line of this that is familiar. The other thing that’s weird just to raise this, is that they thought a lot about it because what Mulvaney is saying is, yes, there was a quid pro quo as it related to an investigation of the 2016 election. He tries to say it had nothing to do with the Bidens or Burisma, the company for which Hunter Biden was on the board, which is totally contradicted by memorandum of the call itself. We know that’s false. In some ways they’re trying to thread the needle to basically say, yeah, this is about investigating past corruption, not about trying to influence the future election. But anyway you look at it, they’re investigation political rivals.
Preet Bharara: So one thing I think is extremely significant, with respect to the legal arguments and how this will play out with respect to impeachment, is when Mulvaney says this thing as we’ve been discussing, that yeah, we did it, we had an exchange, it happens all the time, get over it. Everyone freaks out and the fact that everyone freaked out including the legal team to me indicates that they are well aware of and completely recognize and acknowledge that a quid pro quo is bad. So we had always predicted at some point they’re going to take the position that Mulvaney did briefly, but, yeah, if there’s an exchange, nothing wrong with that. They are not taking that position going forward.
Preet Bharara: The fact that they made him walk back his statement, the fact that he claims he didn’t say what we all saw he said and Chris Wallace I think showed him up on that, means that this issue of quid pro quo, even though I continue to say, I think you agree, not necessary for an article of impeachment. The abuse of power is there based on the request without an exchange, without a quid pro quo but the proof that keeps mounting that there was a quid pro quo with respect to Ukraine is absolutely devastating to the President’s position.
Anne Milgram: Right, I agree, I think that there is evidence that there was a quid pro quo and I think that there will be additional evidence that the House committees uncover and so I would favor having two articles of impeachment on this. One on the sort of broader concept of the President’s duty to not do things for personal political gain but also a quid pro quo article. What is astonishing about it as a defense too is that it sort of assumes something and I think that part of their bet was, yes, the United States argues all the time, we want you to do this in exchange for that. But they forget that they do that on behalf of the good of the United States not on behalf of the President’s personal political benefit.
Anne Milgram: And so there’s a huge distinction and in trying to sort of combine all that together, it just looks absurd. If Mulvaney’s position were right than the President could do anything he wanted essentially, he could leverage any amount of congressional funding in exchange of his own personal benefit and that simply cannot be the way that the United States works.
Preet Bharara: Yeah, I mean, they keep trying to normalize this term quid pro quo to mean something it doesn’t mean when you’re talking about corruption. Exchanges happen all the time, that is the basis for the economy, that’s how capitalism works. Every time you walk into a store and you buy a cookie, to keep the cookies going-
Anne Milgram: Yeah, I love cookies.
Preet Bharara: Or a penguin for that matter if you can buy a penguin.
Anne Milgram: I haven’t bought one lately but yeah.
Preet Bharara: At the pet store, you give them money, they give you the thing that you paid for with the money, that is a quid pro quo, I guess. In every walk of life-
Anne Milgram: Yeah, it’s an exchange, you’re right, yes.
Preet Bharara: You have an exchange. And as you point out the difference is, I mean, everyone understands, the President has some murkiness to work with because everyone does understand, if he said we’re not going to give you the aid in Ukraine unless you agree to help me build a hotel in Ukraine. That’s so much more direct, people get that. If you said, we’re not going to give the $431 million in aid unless you give my campaign a half a million dollars. That’s A, illegal because it’s foreign money but also you understand how directly it relates to his personal benefit. Here they’re grasping at straws a little bit to suggest that the benefit that the President was asking for was in the general interest of the country, it was anti-corruption, people have common sense and they know when the only human being you mention in the conversation is Joe Biden and Joe Biden happens to be, I don’t know if it’s still the case, but at that point it was, leading in the polls as his rival for the Democratic nomination, then it’s very clear that it’s for personal benefit.
Anne Milgram: And by the way, the whole argument that this is for corruption in general, it is part of a cover-up. I mean they’re trying to couch it in these terms in order to prevent people from seeing that it wasn’t about corruption in general, which the U.S. has been fighting against in Ukraine for many years, it’s about this specific incident that they want investigated. And Preet, I wanted to sort of go to the DOJ piece with you just for a second because this crystallized something for me. So Mulvaney argues they want help with the 2016 election and we’ve talked about this that the President believes this now heavily debunked conspiracy theory that somehow the Democratic servers that were hacked by the Russians ended up in Ukraine, that there were Ukrainians involved in this. There’s no basis at all for that belief other than the fact that a couple conspiracy theorists had put it out there and it got a little traction and apparently got traction with the President. But there’s no basis for that.
Anne Milgram: So that’s a piece of this, what Mulvaney seems to be saying is, he goes a step further to connect that theory with the investigation that the Attorney General Bill Barr has the Connecticut U.S. Attorney John Durham doing into whether the investigation into the President in 2016 was legitimately started or whether there was bias in the F.B.I. against the President, against the President’s campaign. So Mulvaney connects those two together potentially in part because he knows that the first piece of this related to the Democratic servers has been totally debunked. But he does this in a way that basically makes it seem like the President of the United States is going out and personally working on an investigation, a criminal investigation.
Anne Milgram: And for some reason it crystallizes for me for the first time of the President can’t investigate people, right? And they’re supposed to be arms length with the attorney general because it’s supposed to be independent. And yes, the President’s the chief executive but-
Preet Bharara: It’s the ultimate paradox. To the extent that they say the spirit of their investigation now is to see if there was bias in the commencing of the investigation relating to Russia, you are now imposing the bias of a person who wants retaliation and who has made a conclusion in advance on that point. The President believes that so the President himself is biased, the President himself should stay the hell out of it, case closed.
Anne Milgram: Yeah, case closed. The last thing to say about the Mulvaney presser, which I thought was really interesting is that it’s also important to remember that this wasn’t money that the President was giving, it was money that was appropriated by Congress, the almost $400 million. And what’s important about that is in Mulvaney’s press conference, he even acknowledges that it’s a violation of the law for the executive branch to quote impound, there’s a whole statute related to impounding money that Congress has legitimately authorized. There’s an awareness of what they’re doing that I didn’t fully appreciate until I saw his press conference, but he knows they’re holding money that Congress has legitimately said, we want it to go out. And they’ve put the brakes on that. There’s an awareness of that quid pro quo piece that I hadn’t seen prior to the press conference.
Preet Bharara: I compare that to Australia, which is not as bad. Look, if you’re on this issue of what the President is asking for and what he’s seeking and how much personal benefit he’s trying to get, there are gradations, right? We know about this phone call the President had with the leader of Australia, which I think is also weird and also unseemly. But the argument in favor of that being legitimate is that there’s an existing investigations going on and he’s merely seeking the help of a foreign power to aid generally in an investigation that’s happening. And I see why people make that point and people try to connect it to this letter that three Democratic senators sent to Ukraine about having them cooperate with the Mueller investigation.
Preet Bharara: The difference I think is the President of the United States has a deep seeded personal interest in the result of one versus none. When you’re asking people to cooperate with and help out with as international comity may require, something like the special counsel’s investigation, which by the way-
Anne Milgram: Oh you said, comity not comedy.
Preet Bharara: [crosstalk 00:32:24] C-O-M-I-T-Y, sometimes it’s C-O-M-
Anne Milgram: Wait, okay, I’m with you.
Preet Bharara: I’m sorry.
Anne Milgram: Yeah, international cooperation.
Preet Bharara: I do a lot of stand-up comity. That was in many ways however much the President was trying to debunk it, set in motion by his administration, was overseen by his attorney general, his deputy attorney general, and had the full support of the Justice Department and so I don’t think they’re really equivalent.
Anne Milgram: I don’t think so either. I think also that the idea of the executive branch, someone in the executive branch saying, hey we expect full cooperation with legitimate and lawful investigations in our country, that conversation has been happening forever and generally speaking we get varying levels as a country of cooperation depending on who the other country is. This is different though, the President here is looking for an investigation, one, to discredit the Mueller investigation and two, basically what we know from his call with Zelensky and again we have to go back to what the actual facts are, is that he’s looking for an investigation into the DNC servers and into which again, is a conspiracy theory that has been debunked into the Bidens and this company Burisma related to Hunter Biden.
Anne Milgram: It is about his personal political gain, it’s not about just look for the good of all, let’s do political corruption investigations and we want you to help us when we do them. But you’re right, there’s enough there that allows the Republicans to basically say, hey, why is it okay for the Democrats to ask for help with Mueller and it’s not okay for the President to ask for help with Biden and the DNC servers and the 2016 investigation.
Preet Bharara: Yeah, I think they could quickly dispense with that argument because it doesn’t hold up. Should we get to impeachment, we should talk about what’s going in the House, lots of developments over the last week. To begin with I think people have some confusion over what powers the House committees have, they have subpoena power we’ve discussed, that’s limited as far as it goes because you can defy it and you have to fight in court. So far there’s not been an appetite to put people under arrest, hold them in inherent contempt. But someone who pays careful attention, a listener, has this question, it’s from William A. Miller, it says, “The White House has clearly indicated a lack of cooperation in responding to subpoenas. Does Congress have the authority to seek search warrants (nuclear option) to forcibly obtain information? Is this contained within the inherent contempt authority? #askpreet”
Preet Bharara: So that’s an important thing for people to understand, that as a criminal investigator, when you and I had those powers, you have all sorts of abilities. Not just to issue subpoenas but to conduct surveillance, to do wire tapping, to put bugs in people’s offices with approval from a court and to execute search warrants. Imagine if as a criminal prosecutor the only power you had was a subpoena, lots and lots of criminal activity would not be able to be prosecuted in a timely way. Congress does not have-
Anne Milgram: Right, and a lot of evidence would be destroyed.
Preet Bharara: Correct, Congress does not have the ability to seek search warrants as far as I know.
Anne Milgram: Yeah, I looked this up, it’s a great listener question, I looked it up a week or two ago when I thought, if I were doing the investigation I would just drop a search warrant on the State Department, on the Pentagon, on the Office of Management and Budget. Particularly because you want the underlying documents here, you want to see what the paper is going back and forth. I looked up, can Congress execute a search warrant and I didn’t find a single thing that said that they can. So it would take a pretty creative and aggressive legal argument for them to go in but I think, they also would have to go through a court. Let’s be clear that the only way you can ever get a search warrant is to go to a court.
Preet Bharara: I don’t think there’s anything that authorizes Congress to do anything-
Anne Milgram: Exactly.
Preet Bharara: More what they have is what civil litigants have when they sue each other and they get discovery, there’s subpoenas that are issued in those cases as well-
Anne Milgram: Exactly. You go to the judge and say they have not complied with the subpoena and so there is a path here for Congress to get those documents and that path is to go the district court and basically say, there’s been a failure to comply. And so I think that’s the mechanism that’s imagined here. And again I think it does matter because even the witnesses who are agreeing to testify, even though the administration has said and a lot of the members of the administration, particularly the political appointees have refused to come in, many of them. But a number of people have come in, particularly the employees of the State Department and other branches of government who are long term government employees, they have come in but they have not as a rule brought documents. Some have but a lot of them have said, for example, it’s up to the State Department to provide those documents to you. And so it does matter for Congress to get their hands on the documents.
Preet Bharara: Here’s another question, that gets to something that you and I have been discussing for awhile, maybe we should spend a couple minutes on what the breadth of the articles of impeachment should be. This comes from a listener by email, Maya, who says, “Given the long list of impeachable actions by the President, what is the best strategy for Congress? Should they only pursue the single issue with Syria or should Congress list all of the offenses they believe are impeachable and send on to the Senate, assuming the House votes to impeach?” This is a question that prosecutors deal with all the time in criminal cases, if you’ve got the ability to make a case with 12 counts or 34 counts, do you charge them all or do you just proceed with a streamlined indictment? I think it depends on the circumstances of the case.
Preet Bharara: One of the first lessons I learned was as a matter of strategy in a criminal case, if you can avoid having only one count, avoid it. So one of my first trials was a case involving a felon possession of a firearm, which is unlawful but the strategic thinking goes that if you only give the jury one choice and they get hung up, they might not have something on which they can compromise. So you’ll often see prosecutors bring a tough count and then some lesser counts and some other related counts under different statutes and the thinking often there is maybe some people will vote to acquit on some but convict on others, you want to give them something of a choice.
Anne Milgram: I agree, I agree with that. I also think you don’t want to give them 100 counts. And as a rule, one of the things I did a lot as a supervisor was significantly pair down indictments. I agree, you don’t want one count and it is helpful to have counts particularly where there’s very clear wrongdoing and you believe it’s very clear that the evidence will support it, it’s helpful to include those counts. But when you have 100 counts, it ends up, you listen to a 100 jury charges first of all and the time you spend at the end can go on for hours. But it also makes it more complicated in some ways when you want to be able to say to a jury, look, here’s what happened, pretty simple straight forward thing and it could be a couple different things that have happened but 100 is too many.
Preet Bharara: And you want to be careful about your long shots, which is not to say, if there have been five robberies and with respect to one robbery, the evidence is not quite as strong, you don’t want to let them off because you believe that there’s proof beyond a reasonable doubt if it’s a little weaker. On the other hand, if you have a weak legal theory, but you think it’s a possibility that you’re going to get a conviction on it, you don’t do that. Because a good defense lawyer doesn’t necessarily methodically attack every single thing. They pick their spots and find the way in which you’ve overreached, they can argue the jury, they say, well, they’ve overreached here and you bang the drum on that for most of your summation and then the hope is that the jury has lost, I think trust and confidence in the prosecution’s strategy overall and vote with the defendant. I think here when it’s not a criminal trial, it’s a political process that requires public sentiment to be on your side. If you have strong counts then you have some more arguable counts that we can see overall enterprise.
Anne Milgram: I remember the other thing that you would always think about is here, the way that you charge it will impact the evidence that can come in at the trial in the Senate. It’s really important to think about what evidence the House thinks is critically important that it have come before American public as part of the trial and that will dictate in some ways as well what the counts are. At this moment in time, I’ve been thinking about it in terms of being very focused on Ukraine at this moment in time and essentially we talked about this before for a moment, but maybe having more than one count related to Ukraine I think there is a quid pro quo and I certainly would want to see the House put in that evidence. I think it’s very important. But I also think like you do, you don’t need a quid pro quo here, the President has violated his duty to the American public and-
Preet Bharara: But do you have a separate article of impeachment on quid pro quo, you think, yes.
Anne Milgram: I think yes, at this moment in time I would think you would have probably at least two or three articles of impeachment related to the effort by the President to exert political influence for his personal gain in the 2020 election. And I also see obstruction counts here and there are different levels of the obstruction that I would see. Most particularly this idea of putting the calls in other spaces, sort of squirreling away the calls. But also potentially and I want to think more about this, not complying with Congress.
Preet Bharara: I agree with you on two, I’m not sure about one. To the extent they’re asking for the calls that have been squirreled away in the secret server. Then I think that supports and article of impeachment in the second way that you described.
Anne Milgram: Yes.
Preet Bharara: By the way those were articles of impeachment in Nixon’s case.
Anne Milgram: Right, I agree.
Preet Bharara: I think the hard question is, putting aside Ukraine, and I asked this of George Conway and he had a particular view. I’m curious what your view is, having had this Mueller investigation, and volume two of his report, which sets forth a lot potential articles of impeachment based on obstruction and the thousand prosecutors, you and I didn’t sign, but a thousand prosecutors former prosecutors did, saying these were clear crimes that the President could be charged with were he not the sitting President and we did not have the OLC guidance. Do you add those in here? I think the answer to that is not legal but political and strategic. I think George Conway’s view was, you add them in. It would seem odd not to add them in given how many people said that they constitute evidence of a crime but I think as a political matter, it weakens the Ukraine stuff, which is more recent I think in the minds of many people whether it’s fair or not, more urgent and still developing.
Anne Milgram: I agree with that.
Preet Bharara: What do you think about the Mueller stuff?
Anne Milgram: Yeah, I agree with that. I mean, it’s so complicated because I was someone who favored going forward after the Mueller report came out, I did believe that there had been sufficient evidence to warrant, if I had been a prosecutor, I would have taken a number of those obstruction counts to the Grand Jury. What I think is complicated now is that, as a pure legal matter, do I think it would be legitimate and lawful for the House to do it, the answer is yes. I mean, there’s in my view sufficient evidence. Do I think it’s the right strategic and political move at this point in time? My instinct is no and I want to think more about it because again, I was someone who was critical of Pelosi for not moving quickly after the Mueller report came out to bring those forward but it’s been a long time now since the Mueller report came out. He turned it in, I believe it was March and it was sort of released in April. We’re now sitting in October soon to be November.
Anne Milgram: And it feels to me like being streamlined and focused and clear about the harm and the issue here is really important. I also I’m starting to really make a distinction that I think is probably just more of a political public one that it is a legal one, which is that there is a lot to be said about the fact that the Ukraine incident involves the next election. And there’s a real current ongoing harm, whereas the Mueller is a look back. I think the reason Mueller is important is because that election interference relates directly to this election interference. But they are different in some ways at least in the minds of the public. I want to think more about it and I want to know what your views are but I would be really cautious about overly complicating this and making it about too many things.
Preet Bharara: Yeah. At this moment I am a reluctant believer that you stick to Ukraine. Because look, there was the opportunity to proceed speedily on impeachment after the Mueller report came out and there was not a consensus. It’s sort of like a test on the Grand Jury, in some ways the public writ large and even some moderate Democrats and even the Speaker of the House and certainly Republicans, weren’t feeling it with respect to the Mueller stuff even if other people were. And they seem to feeling it to pick a legal technical phrase with respect to the Ukraine business. So I think you stick with that. I think you make it harder for moderates and Republicans to go along if you through in all the Mueller stuff. It also seems, this is not a good basis, this is not a statement of principal.
Preet Bharara: So I hate to say it but since it’s a political process not a legal process, I mean if we were criminal prosecutors you would put it all in probably. It’s a little bit old. And I think it’s sort of been adjudicated publicly in a way that a lot of Trump opponents don’t like but it kind of has been.
Anne Milgram: Yeah, I agree with that. I also think there’s another piece that’s coming, which is that we haven’t seen the inspector general report yet on whether the FISAs were legitimately issued during the Trump campaign and whether the F.B.I. investigation into the President in 2016 was legitimate. The inspector general is still working on that report, we know as we just talked about that Bill Bar, the attorney general, who I think has been deeply partisan and problematic but nevertheless is still the sitting attorney general, he has this separate investigation being led by the Connecticut U.S. attorney. So they’re still litigating in some ways the 2016 election. They’re complicating it in some ways and again, I don’t want to prejudge what particularly the inspector general’s report will say but there is something about … There’s a level of complication and a lack of clarity around that. Not for you and I went it comes to obstruction but for the American public that you don’t want to put that in your trial.
Anne Milgram: What you want in that trial is to be able to say, the President did something wrong, he’s trying to influence the future election. He’s using the money that Congress has allocated and his own personal power to benefit himself politically and we can’t do that. And that feels like a much better narrative.
Preet Bharara: It’s also harder it seems to me to attack the propriety of the investigation into the Ukraine business. The best they have as far as I can tell right now, is the whistleblower is somehow partisan even though everything the whistleblower said is completely accurate and has been corroborated. And second, Adam Schiff did this exaggeration parody-
Anne Milgram: Dramatic reading.
Preet Bharara: Dramatic reading-
Anne Milgram: And he wasn’t on a podcast.
Preet Bharara: … where he exaggerated for effect and that’s it.
Anne Milgram: And they’ve changed their defense so frequently that it’s clear, they don’t really have a defense in my view.
Preet Bharara: Correct, whereas on the other, they had two years to figure out ways to attack the Mueller investigation. As you say, you have this IG report that hasn’t yet come out. Would Mueller have to testify if you had articles of impeachment relating to obstruction? I bet now having seen what happened last time, and I hate to say this also, I think Republican managers for the President would want to call Mueller. I’m not sure how that would go. So I think stick to the new stuff and there’s plenty of it.
Anne Milgram: I agree, the more we’ve talked about it the more convinced I am. I would be very focused on Ukraine and any counts related to Ukraine but I would stay away from the Mueller report and 2016.
Preet Bharara: What if for example, the Doral decision had not been reversed and we were proceeding with setting up the G7 at the President’s own property? Separate impeachable offense, article of impeachment or not?
Anne Milgram: Yeah, that’s an interesting question. What was very clear I think is that Congress was going to move on the Doral piece, that they were going to bring it into an investigation that they were already doing. And so it felt to me like, it would already be handled in some ways. I don’t want to say that I think anything should be added beyond Ukraine but it would have to rise to a real level of corruption that was provable. That was very clear in my view. So Doral, I think is just outrageous on it’s face and absurd that they would pick it but when I heard that Congress was looking at it and was bringing it into an investigation they were doing, I was not of the mind in that moment of time that it had to be an article of impeachment.
Anne Milgram: Again, I think that focus and simplicity matters a lot and the thing about Ukraine, and we don’t know as much about the inner workings of the Doral yet. And maybe part of why they reversed is that there was going to be a deep inquiry into how that decision got made.
Preet Bharara: There still should be by the way.
Anne Milgram: There still should be, agreed. And there may be something that comes out that makes it clear that it really does hurt the U.S. interest. But Ukraine is at such a high level of the President using his power that it just feels to me and it’s such a significant way trying to basically hold $400 million of aid for a country that desperately needs that aid unless they investigate one of his political rivals. Just feels to me like at such a high level and so I would want-
Preet Bharara: And in a way that makes Russia happy.
Anne Milgram: Yes, yes, exactly. So if you’re going to add something, it has to be at that level otherwise it’s complicating. Again, if we think about what you want the trial to look like, I think something like the Doral would eclipsed by the Ukraine piece and would actually be maybe even distracting.
Preet Bharara: So the other thing that’s going on that we haven’t had a chance to get to yet, we can cover quickly and summarize is while all these other shenanigans are going on and while Mick Mulvaney is saying things and then retracting them and then not retracting them, witnesses are coming in to testify behind closed doors. They’re having their depositions taken, some of whom are still in office, some of whom are not. Some of whom are doing it over the objections of the White House. And so all this evidence is being developed and I think one other thing that should happen at least in my view, I wondering what you think, is before there is a vote on impeachment or a vote on articles of impeachment with respect to some of these witnesses, there need to be public hearings where sort of the highlights of the testimony that are both inculpatory of the President and also exculpatory of the President, happen in the open and not just behind closed doors.
Preet Bharara: I don’t think you want to at the end of the day, just have a report or articles based on behind closed doors depositions of them, they’re going through other investigations have been done that I’ve participated in getting as much evidence from as many people as possible. And then there need to be a series of public hearings, so public sentiment comes along too.
Anne Milgram: Yeah, that’s the way I would imagine it happening. I mean, I think the only other way is to release the depositions frankly. Because the House can not vote on articles of impeachment without the public understanding what evidence there is that they believe supports it. And in a way that’s fair that both provides the information that they think supports it and potentially information that doesn’t support it. There has to be a public process that for this to be legitimate I believe needs to happen. What that looks like, I assume and I’ve just been making that assumption that it would be hearings and maybe that’s not the right assumption, I’ll think more about what the other options are but I think there does have to be a public vetting of this.
Anne Milgram: I don’t think it’s fair to ask members to go in and cast their vote unless there’s some process by which the American public understands … You and I have talked about this before but it’s worth just highlighting, impeachment is an incredible serious thing and it hasn’t happened very often in the United States of America. The public has to understand and members of the House of Representatives who vote need to have confidence also that the public understands what’s happening. I think there’s a process element here that’s really, really important.
Preet Bharara: So a few people have come in and testified, we don’t know the full extent of what they said. We talked last week on the show, our expectation that the Ambassador to the E.U., Gordon Sondland would testify. He ended up testifying.
Anne Milgram: Yes, he ended testifying, it’s really interesting. He was there for a very long time and we don’t know exactly what he said. What he basically released a statement up front that made it appear and I call this a little bit of the admit what you can’t deny, deny what you can’t admit defense, which is the yes, I was in it but I was doing this because the President directed me to work with Rudy Giuliani. But I was upset about the way that the Ambassador Marie Yovanovitch, the way that she was treated. He’s trying to walk the line of basically saying yes, I did this political stuff with Ukraine, and I was involved in it but I did it because the President told me to do it and I support the State Department employees.
Anne Milgram: And part of it I think is really important, which is that he was very explicit in saying, the President directed that we work with Giuliani. The part that I didn’t find credible and just to get your input on this, he makes this sort of argument that yes, I knew that there was an investigation into Burisma, this company in which Hunter Biden was a board member, I knew there was an investigation into that but I didn’t know it was connected to the Bidens.
Preet Bharara: Right, I didn’t connect the dots.
Anne Milgram: It’s a little too cute when at the time that he’s essentially, he’s the E.U. ambassador but he’s overseeing Ukraine, the President has hand selected, he and Rick Perry, there’s a very small group of people who have been personally selected to be in charge of this and there are articles being last summer about the Burisma connection to the Bidens and the fact that the President has been pushing for this investigation, if it’s a surprise to him that’s a stunning thing. What did you make?
Preet Bharara: So he’s mixed, he’s a mixed witness. He’s trying to save himself, he’s also trying not to overtly lie. And we’ve used this term a couple times in the show, I think we’ll use it a lot more because it’s happening a bunch, threading the needle and trying to put the best face on this. Because he’s seeing, I think, where things are going. And that’s why I think some of these other people are defining the White House party line and they’re coming forward and they want to say their piece and they don’t want to look like they’re obstructing and they also don’t want to look like they’re carrying the water for someone else because I think they’re beginning to see how quickly you get thrown under the bus.
Anne Milgram: Yeah, and by the way, he directly points the finger at the President and he came forward completely on that. The thing he didn’t do was acknowledge … he minimized his role and how much he was in the politics I think of doing this and what he wants to say is, I was doing it, I just didn’t know that we were doing this to hurt Joe Biden.
Preet Bharara: You know Sondland is in the hotel business, right? Do you think he’s trying to get the G7?
Anne Milgram: Maybe he should back to the hotel business and try to get the G7.
Preet Bharara: Maybe he has the perfect property.
Anne Milgram: He’s in hospitality.
Preet Bharara: For the G7, I think may be again very soon.
Anne Milgram: By the way, we should say this also, in case people are quick to try to paint witnesses as good or bad, he is a mixed witness and there’s a lot he gives that I think is truthful and important. And then there’s a place where he has enormous self-interest in minimizing his role and it’s the job of the House managers of impeachment if this goes forward to be able to understand and explain that to people that both things can be true. He can both be telling the truth and trying to minimize his wrongdoing.
Preet Bharara: In real life that happens all the time. The people who know about a scheme, the people who know about the bad conduct that happened, there’s this view sometimes that the good guys are always the ones who are pure and heroic, maybe the whistleblower was, maybe he wasn’t, but they’re pure and heroic and they witness something and they come forward and they sound the alarm and then they give the evidence and that they’re pure. Often, you have people who are a little bit in and a little bit out and probably crossed some lines and they’re a mixed bag. And cases have been put together, you and I have both done, where a series of mixed bag witnesses plus corroborating evidence like texts and emails and phone calls that have transcripts, you put it all together and you tell a story and it’s not always perfect the story. In fact, no trial I’ve ever been a part of has been as perfect and beautiful as Donald Trump claims his call was. It’s always a little messy because people are messy.
Anne Milgram: But to your point and I think this is really important for people to remember, there are text messages with Sondland, there are witnesses who will say Sondland was in this meeting and raised these questions and investigations. At the end of the day there will be a lot of evidence that makes it clear what happened and again, that shows in ways in which he’s come forward and ways in which he’s not completely acknowledged his role.
Preet Bharara: The most important thing in Sondland’s testimony to me is what he did not say. He did not come out swinging in favor of the President, saying there’s nothing to see here, everything was great, everything was wonderful, everything was beautiful, what is wrong with you, how dare you, how dare you impugn my integrity, the President’s integrity. Which if everything was great, you might have expected that. And he didn’t do that. And a parade of people who don’t do that-
Anne Milgram: Actually he said the opposite, he said there was too much politics. I mean, he’s the political appointee but he-
Preet Bharara: But if you just see how the hearings will unfold, I’m trying to picture in my head if there’s a witness, I’m not talking a member of Congress or Jim Jordan, whether he’s a wearing a jacket or not wearing a jacket, somebody who’s involved in the facts and who was a witness to the events and the conversations is there a witness who’s going to come forward and in a full-throated Mick Mulvaney way, with knowledge of the proceedings, going to come forward and say this was all perfect and great and wonderful. And I can’t think of a person who will do that.
Anne Milgram: Yeah and in fact they’re not going in. To your point, Pence has not agreed to cooperate with the investigation. Rick Perry has not agreed to cooperate with the investigation. The people who you and I might think would go in and give a full-throated defense of the President have said, we’re not going to be a part of it. That in my view falls against them. It falls against how strong those arguments are.
Preet Bharara: Rhetorically and otherwise, it’s a point to be emphasized. If the only people who are saying everything was great are politicians who have a partisan purpose, that’s one thing. Listen to what the witnesses are saying and listen to what the witnesses are not saying. Another gentleman came in to testify in front of the House, George Kent, not Clark, but George. Deputy Assistant Secretary of State in the bureau of European and Eurasian affairs, he says a lot of things. Among them, that there’s a group of people who basically sidelined him on Ukraine policy and the three people were, the three amigos.
Anne Milgram: Yes, the European Union Ambassador Gordon Sondland, Energy Secretary Rick Perry, and special envoy, U.S. Envoy to Ukraine Kurt Volker.
Preet Bharara: We should pause on Rick Perry is leaving.
Anne Milgram: Yes, he’s now leaving, he’s tired of being blamed for everything.
Preet Bharara: Do you think Dancing With the Stars has a policy that you can only be on as a former government official one time or do you think he can be on again?
Anne Milgram: I don’t know whether I hope they do or they don’t. I’m a mixed witness on that. Both because I would not like to see it and because I probably could not help myself but watch. So yeah, Kent testified and it’s important both that he sidelined because it sort of shows the rise of politics in the State Department dealings with Ukraine. It’s also important that he really talked about the fact that Giuliani’s involvement and how he was pushed out of this. It does make a difference in sort of this bigger narrative of who was running Ukraine policy and who was in charge of it and it’s clear that it was a very political effort and that the people in charge of it, that they were trying to get the career State folks out of the picture. What’s also important to be is that the career State folks are the very people who had been responsible for actually fighting corruption in Ukraine. The ambassador who was pushed out, Marie Yovanovitch, George Kent, who’s minimized.
Anne Milgram: At the end of the day, I think it’s going to paint a picture of there are people who really do care about corruption in Ukraine and trying to do the right there, they’re all pushed aside in favor of the President’s hand picked politicos who he tells to basically listen to Giuliani.
Preet Bharara: I mean I think about all this as we start to move into the posture of thinking about an impeachment proceeding vote and a trial in the Senate, that once upon a time people might have thought that the only evidence that you had of this bad conduct was that phone call that the whistleblower cited. And it’s very difficult even if all the evidence you need and all the elements are made out with respect to one phone call, there are ambiguities you can argue even if they’re not good faith arguments to make. The problem for the President here is, there’s so much other meat. There’s so many other subplots, all of which further the main plot-
Anne Milgram: Yeah, they all go in the same direction.
Preet Bharara: Yeah, again, it’s very simple and for all people who are arguing with their friends, where you have these kinds of arguments and discussions and all the names are hard to keep straight, we sort of do this for a living and it’s sometimes hard to keep straight what everyone’s title is. The fundamental thing to remember is, the President of the United States appears to have tried to pressure a foreign government to do an investigation of his rival, and it’s possible that it was even worse than than that he did it by withholding substantial, hundreds of millions of dollars in aid to that country in a quid pro quo. And the question is, when you hear new evidence come to light and new testimony being revealed, does it support that conclusion? And if it does, that’s worse for the President and it adds meat to the bones and it’s not just a conclusory bit of evidence that you put forward-
Anne Milgram: I think this is the whole problem for the President, which is that in order to do this, he had to sideline the entire apparatus of the United States government that usually deals with Ukraine. And he had to change the way we’re doing business and put his own personal … whether he’s really acting as his attorney or not, but put his own personal attorney in. And at the end of the day, there’s so much evidence of how it was done and what was done, the call is just sort of the crystallizing moment where the President makes the ask of the foreign leader.
Preet Bharara: It’s the thing that’s missing from other places.
Anne Milgram: Yes.
Preet Bharara: It puts him in it personally.
Anne Milgram: Yes, exactly. If we didn’t have that call it would be very easy for the President basically to distance himself from I don’t know what Rudy was doing, I hadn’t told him to do this, I don’t know what Perry’s doing. But it puts him … it makes him the leader of this effort.
Preet Bharara: Right, and you think about what the summation is going to be and you always, we should talk about in the future, we would talk about what the summation is would be-
Anne Milgram: Day one.
Preet Bharara: At the time you filed the criminal complaint or indictment. And would say to people, from time to time on closer case, hum a few bars of the summation. How are we going to argue this particularly if it’s circumstantial evidence, which is perfectly acceptable and usable in court, people don’t always appreciate that. Just as good as direct evidence. Some circumstantial evidence is really, really powerful. And you’d say, well how are you going to argue this? And one way you’re going to argue this, is if everything was on the up and up, if everything was so normal and ordinary and beautiful and perfect, and those words are going to come back to haunt the President. If everything’s so beautiful and perfect, they why is an outsider, then why sideline the people, then why have a separate server. And there’s 20 more questions you can ask like that. That you would expect that the people who were pressing the case in the Senate will make those points and they’ll do it front of the American public and it will be compelling.
Anne Milgram: It’s a great point because even if they try to proffer an answer to each one of those, they will not all stick together. By the time you get to question three-
Preet Bharara: There’s an accumulation.
Anne Milgram: There’s an accumulation and I think the depth of the evidence here is something we haven’t seen before and that’s what makes it so powerful.
Preet Bharara: By the way, I didn’t really expect this depth of evidence. We first heard about the call-
Anne Milgram: Yeah, I agree with that.
Preet Bharara: Or maybe to put slightly differently, I had no faith that this accumulation of evidence would come forward.
Anne Milgram: I think that’s the better way to say it. Because I think if we sort of thought about what got to that call, it would have been clear that there were a number of steps, I just didn’t anticipate how much of that would become public information, how many people would come forward. Can I ask one of the listener questions that came up and I think it’s important to talk about this as we’re doing this right now, which is, we got a question about shadow diplomacy from Seth Robey, @Sethrobey on Twitter. “@preetbharara @annemilgram, do Rudy’s actions as a shadow diplomat violate Congress’ role to advise and consent on cabinet and senior officials?” And it goes on to sort of think about what stops a President of the United States from nominating an empty suit, Secretary of State, but then using his buddies for diplomacy, “#askpreet #askanne.”
Anne Milgram: Here’s my question, I’m going to put my question with Seth’s, should we be calling this shadow diplomacy?
Preet Bharara: I don’t know exactly what that means, I mean I’ve been using that term also.
Anne Milgram: I don’t like it.
Preet Bharara: It’s not a technical term. Well, because it doesn’t look like it’s diplomacy.
Anne Milgram: Exactly, I feel like we’re legitimizing [crosstalk 01:04:17]
Preet Bharara: Yeah, I think from time to time, it happens that a President of the United States and the foreign policy establishment will decide in the interest of the United States of America, we are going to ask a former president or somebody of substantial respect to go help-
Anne Milgram: To be an emissary-
Preet Bharara: To be an emissary or-
Anne Milgram: Yes, that’s different in my view.
Preet Bharara: But if you’re going to have somebody who’s helping the government, that’s one thing, if you’re going to have somebody who’s trying to help your own personal interests, who by the way also has clients in lots of different places, who may conflict. I mean part of the reason that you do these things internally is to make sure that they’re conflict free. If you’re the Secretary of State or an ambassador, you’re not allowed to have other employment and other interests, and other people paying your salary so that you represent only the United States of America. Rudy Giuliani represents himself at the same time representing members of foreign governments, leaders of foreign governments, criminals who he’s trying to get pardoned or sent back to the originating country like Turkey. And at the same time, as opposed to in good faith doing things on behalf of the United States of America, doesn’t work. And I think he’s in a load of trouble because of it.
Anne Milgram: I agree, so first of all I don’t think it’s diplomacy and I think we should stop calling it shadow diplomacy because it almost makes it feel legitimate to me.
Preet Bharara: Shadow dancing? Should we call it that?
Anne Milgram: Can you play that song now?
Preet Bharara: Nobody knows what song you’re talking about.
Anne Milgram: Isn’t there a song?
Preet Bharara: There is but from a long time ago.
Anne Milgram: Yeah, okay, I’m old, yeah, I’m old, okay.
Preet Bharara: The Bee-Gees.
Anne Milgram: The Bee-Gees. The second point on Rudy … Preet just made a great face [crosstalk 01:05:53] You’re old and you’re not cool.
Preet Bharara: Who the hell are these people and who gave them a podcast?
Anne Milgram: Here’s the other point on Rudy, it’s about the President trying to use his guy outside of government to get something done. Because the President could have put Rudy in the State Department and he didn’t and he didn’t want to. And there’s a way in which this is an intentional circumvention of the way that the State Department and U.S. diplomacy works and so I-
Preet Bharara: That’s a way you can describe the entire presidency. It’s a circumvention of protocols, policies, checks and balances and everything else, that’s the point.
Anne Milgram: That is the point, I’m going to try to come up with in the next week another term other than, unless you have one now-
Preet Bharara: No.
Anne Milgram: Shadow diplomacy because I don’t want to buy in into this idea that there’s something diplomatic and legitimate about trying to pressure a foreign government to do your personal political bidding.
Preet Bharara: There’s a lot of news, keeps developing, we’ll keep trying to explain it.
Anne Milgram: Yeah, great to see, please send us your questions.
Preet Bharara: We’ll try to answer them. This is the Cafe Insider podcast, your hosts are Preet Bharara and Anne Milgram. The executive producer is Tamara Sepper, the senior producer is Aaron Dalton and the Cafe team is Carla Pierini, Julia Doyle, Calvin Lord, David Kurlander and Geoff Isenman. Our music is by Andrew Dost. Thank you for being a part of the Cafe Insider community.