• Transcript
  • Show Notes

In this episode of CAFE Insider, “What to Expect When You’re Electing,” Preet and Anne break down Russian and Iranian efforts to influence the election, President Trump’s threats to deploy troops to poll sites, law enforcement preparations to ensure voter safety at the polls, the Supreme Court decision regarding absentee ballots in Wisconsin, Amy Coney Barrett’s Supreme Court confirmation, and more.  

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

This podcast is produced by CAFE Studios. 

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

REFERENCES & SUPPLEMENTAL MATERIALS

AMY CONEY BARRETT CONFIRMATION

2020 General Election Early Vote Statistics, U.S. Elections Project

“Power Up: Mitch McConnell won the battle on Barrett. But will he win the war to keep his Senate majority?” WaPo, 10/27/20

“GOP bets Democrats won’t expand Supreme Court. Progressives say: Call their bluff,” NBC News, 10/26/20

“I Was Reagan’s Solicitor General. Here’s What Biden Should Do With the Court,” Charles Fried op-ed, NYT, 10/19/20

FOREIGN ELECTION INTERFERENCE 

Cyber Space ft. Sue Gordon, 10/23/20

“DNI John Ratcliffe’s Remarks at Press Conference on Election Security,” ODNI, 10/21/20

“FBI Director Christopher Wray’s Remarks at Press Conference on Election Security,” FBI, 10/21/20

“Scoop: Trump’s post-election execution list,” AXIOS, 10/25/20

“Foreign Influence Operations and the 2020 Election: Framing the Debate,” Lawfare, 10/23/20

“U.S. government concludes Iran was behind threatening emails sent to Democrats,” WaPo, 10/22/20

“Schumer says briefing on Iranian election interference didn’t convince him effort was meant to hurt Trump,” The Hill, 10/22/20

“The Goal of Iran’s Fake ‘Proud Boys’ Emails Was Chaos,” Vice, 10/22/20

“Iran and Russia Seek to Influence Election in Final Days, U.S. Officials Warn,” NYT, 10/21/20

LAW ENFORCEMENT AT THE POLLS

18 U.S. Code §592. Troops at polls

18 U.S. Code §593. Interference by armed forces

52 U.S. Code §10101. Voting rights

10 U.S. Code §252. Use of militia and armed forces to enforce Federal authority

“Legal Challenges to a President’s Attempt to Deploy Law Enforcement to the Polls on or Around Election Day,” Protect Democracy, August 2020

“Video shows NYPD officers using patrol vehicle speakers to share ‘Trump 2020’ message,” The Hill, 10/25/20

“Wrestling with Legal and Illegal Orders in the Military in the Months Ahead,” Just Security, 10/19/20

Juliette Kayyem tweets, 10/25/20

ELECTION LITIGATION

“Can Trump Steal The Election? (with Marc Elias),” Stay Tuned with Preet, 10/8/20

U.S. Constitution Article 1, Section IV, Clause 1. Elections Clause

Democratic National Committee v. Wisconsin State Legislature, U.S. Supreme Court, opinion, concurrences, and dissents, 10/26/20

“A Day-By-Day Guide to What Could Happen If This Election Goes Bad,” Politico, 10/23/20

“Election night marks the end of one phase of campaign 2020 – and the start of another,” Pew Research Center, 10/22/20

LINCOLN PROJECT BILLBOARDS

Lincoln Project letter, 10/24/20

Marc Kasowitz letter to Lincoln Project, 10/23/20

Doobie Brothers letter to Bill Murray, 9/23/20

Bill Murray letter to Doobie Brothers, 9/25/20

Preet Bharara tweet, 10/24/20

Preet Bharara:

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

Anne Milgram:

And Anne Milgram.

Preet Bharara:

How are you, Anne?

Anne Milgram:

Hey, Preet.

Preet Bharara:

I like how you didn’t answer my question. How are you, Anne? You responded, Hey, Preet.

Anne Milgram:

Last night, the confirmation of Amy Coney Barrett, it was a rough night.

Preet Bharara:

Did you watch any of it?

Anne Milgram:

I did. I watched all of it because I feel like it’s really important to watch and pay attention. But it was hard to watch. Did you watch it?

Preet Bharara:

I did not.

Anne Milgram:

I don’t blame you. In fact, can I say I envy you?

Preet Bharara:

Yeah, look it was a rushed process. It was in all the ways that we’ve discussed and others have an illegitimate process. And the most that people can do, who care about the issues that she will affect, I think negatively for a long time, channel that energy and frustration into the vote and make sure as I tweeted last night. Yeah, make sure this election has consequence.

Anne Milgram:

Yeah, I think that’s right, but I don’t think it’s enough. I sort of was thinking last night about the point that we are truly at a minority rule point in our country where the court is going to be is very much out of lockstep with the majority of Americans. And that troubles me for a lot of reasons, including that it is very destabilizing for our democracy in our country. And so, I think we all have to vote, but then after we vote, I think people have to stay engaged. And I think people have, we have to figure out a way to constantly sort of articulate views because if we wait every four years, I mean, people don’t have long memories. And Mitch McConnell is an artful political. I was really struck.

Anne Milgram:

I don’t know if you saw this, but one of the articles that came out this weekend was that Trump was leaning toward nominating Barbara Lagoa who you and I had sort of said, Oh, she’s Florida. She’s the obvious sort of right political choice and was talked out of it by Mitch McConnell, who said, do Barrett, shore up the conservative base. This will be better for you in the long run. I think it’s better for Mitch McConnell in the long run. I actually don’t know if politically it was the right decision by Trump.

Preet Bharara:

But he got it done.

Anne Milgram:

He got it done. And this is McConnell’s long-term goal. And Trump, I think has bought very much into it. The court is now six, three with a deeply conservative majority, and we’ve already started to see how that’s going to impact some decisions, which I think we’ll talk about.

Preet Bharara:

Did you hear what Mitch McConnell said about this? Apparently over the weekend, he said, look, with respect to a lot of things we’ve tried to do over the last four years, that’s going to be undone sooner or later with this election, which sounded to sound like a concession of an electoral loss. But the one thing that will not be affected is the confirmation of Amy Coney Barrett. So he puts starkly on the record. Look, this is one of those things that Mitch McConnell will be gone, Donald Trump will be gone. A lot of folks will be gone, but she will be there for a long time.

Anne Milgram:

Yes. Agreed. Yeah. Look, it’s a disappointing day. The process wasn’t fair. It is unjust. I mean, look, it was a bad day for, I think America, but I was thinking a lot about president Obama, about Merrick Garland about the fact that the rules just are not equally applied and that is a really bad sign of a country. And it just, it’s not good. It’s not good for any of us longterm. So I’m as, or more troubled by this than I have been by almost anything else in the past four years. And I just, it’s different than Ukraine, the president trying to get dirt on Joe Biden, it’s different than Russian interference in the election, but it is at that level of significance of the longterm, I think harm that that can come.

Preet Bharara:

Yeah. And I think, look, a lot of, somewhat centrist and moderate elected officials in the Democratic party are squarely putting expansion of the court on the table. I know that Biden himself has said he wants to appoint a commission to study it. But I think that option is on the table. Don’t you think?

Anne Milgram:

I love the commission idea and I’ll tell you why I love the commission idea because everybody sort of rushes to expand the court. And look, there’s an argument to expand the court based on there now, 13 judicial circuits, there are nine justices. The last time the court was expanded, it related to the size of the federal judiciary, similarly to an expansion in the number of circuit courts across our country. And our population is vastly larger than it was so there’s arguments. But the thing I like about the bipartisan commission is that again, I don’t think that this is good for any of us. This is a win for deeply conservative Republicans. But again, I think they’re out of lockstep with a lot of the country. And so I like the idea of the commission. I like the idea of figuring out what all the options are. I hope it’s public. I hope that there’s a transparent vetting of what those options are.

Anne Milgram:

And look, I took to heart Charles Fried, who’s a Harvard professor who wrote last week that the op-ed he wrote, which basically said, look, I don’t like court expansion, it’s a terrible idea. But when you consider it next to the other options, it’s maybe not so bad. And so I think we need to consider it next to all the other options. And I applaud Biden for doing this for not just saying, look, I’m going to expand the court because they’ve cheated to win and to amass power in a way that will hurt our country. I like the idea of basically saying, look, something fundamentally is wrong here. Let’s look at that. Let’s understand it. And then let’s come up with a plan. So I’m on board with the commission. I know a lot of folks think it’s too modest, but I don’t agree with that.

Preet Bharara:

Look, there’s a fundamental imbalance, that has occurred over time. It’s not just this “theft” of the last two seats. I’ll remind people as some others have been doing that, Republicans have won the presidency via the popular vote, one time in the last seven elections. And yet Republican presidents have picked 15 of the last 19 Supreme Court justices. So there’s something that’s out of whack and not representative of the country. And sometimes you have to take a look and rebalance. So of course, and we always record it on a Tuesday, which means that we’re exactly one week away from the end of the election, seven days away. We should note for folks that we will not be recording on election day. What will we be doing on election day, fretting, calling, doing various things.

Anne Milgram:

At this point, I’m having a bit of a voting odyssey. I may still be voting. I asked for an absentee ballot, I didn’t get it. I went to an early voting place yesterday, the lines were so long. I didn’t vote. I wasn’t able to vote, I didn’t. I’m going today if I can, but if not, next Tuesday.

Preet Bharara:

We voted with my daughter for the first time in a presidential election.

Anne Milgram:

Was it her first vote?

Preet Bharara:

Yes, her first presidential she’s 19. So it was kind of great and we all got stickers and that was good. And we got that [crosstalk 00:06:49].

Anne Milgram:

Who doesn’t love a sticker. I love the, I voted sticker.

Preet Bharara:

We will not be recording a CAFE Insider on Tuesday, but we will be doing the next day, no matter how hangover Anne Milgram is.

Anne Milgram:

Objection.

Preet Bharara:

Come rain or moonshine, as they say, we are going to have all of the CAFE hosts and that includes, Elie Hoenig and Lisa Monaco and Ken Wainstein and John Carlin and you and me, the next morning giving our thoughts and a kind of a round table.

Anne Milgram:

And not to foreshadow too much, but it’s very likely, we won’t know who’s the next president of the United States at that moment.

Preet Bharara:

We may not but we’ll get immediate reactions from a bunch of interesting smart CAFE hosts and then that’ll be in the Stay Tuned feed. And I presume, it’ll be a very interesting discussion.

Anne Milgram:

I like the way you said, interesting, smart, thoughtful CAFE hosts as though we don’t fall in that bucket.

Preet Bharara:

Well, yeah. President of the company excepted.

Anne Milgram:

Yeah, exactly.

Preet Bharara:

So we have record turnout for early vote. I mean, New York has never had early voting before, so there’s no comparison. Compared to prior years, it’s actually infinity. In case of you doing the math properly.

Anne Milgram:

Yeah. It’s amazing though how many people have voted. 40 million by mail in ballots and 20,000 by in-person early voting? That’s a lot. I mean, that’s almost 44% of the total votes counted in the 2016 general election. That’s an amazing thing. I think it’s great.

Preet Bharara:

No, I think it is great. I think we’re on pace to have the highest percentage turnout since I saw someone was observing since 1908 participation is good, but in anticipation of the election and a potential aftermath of the election, there’s lots of things that people are worried about that could go wrong. And I think we should address some of them. Our friend, Julitte Kayyem sort of set it out, parsed it, I think very well. The multiple potential threats, there’s a suppression threat, which we’ll talk about. Pandemic threat because of the complications due to that. Threat of violence and then all the things from abroad, the foreign threat. You want to talk about the foreign stuff first?

Anne Milgram:

Yeah. And I would just add to that great list. I think there’s also a real threat that comes to sort of, that’s just the election. I think when we start talking about counting votes and how the ballots get counted and corps getting involved, I think that’s a whole nother another level that we should talk about too. But yeah, let’s talk about the foreign stuff because…

Preet Bharara:

Otherwise it’s great. Otherwise, we’re in fantastic shape in our democracy.

Anne Milgram:

Nothing to see here.

Preet Bharara:

Nothing to see here. So there’s been all this discussion, the justice department, the FBI director, the DNI have made announcements about interference. There’s some debate about who’s worse, Iran or Russia. I don’t know whether we have to resolve that debate. Some of that posturing is political, but look, there’s a real attempt at interference from the nation state of Iran where Iranian officials have orchestrated campaign according to officials of sending fake menacing emails to register Democrats, disguising themselves as the Proud Boys, what do you make of that?

Anne Milgram:

Can I read the email?

Preet Bharara:

Yeah.

Anne Milgram:

So everyone should understand that it appears that both Iran and Russia have gained access to voter information. And some of that information is publicly available. Some of it is sold commercially by state division of elections. And some of it has been, appears at least from Russia hacked, that the Russian government that someone affiliated with the Russian government has accessed voter information. This is very bad as we all know. And part of what Iran got through one of those processes, it looks like it’s not clear that Iran actually hacked in, but we don’t know a lot yet, but they got access to people’s emails. So they sent emails to registered voters from Proud Boys. And again, that’s a White supremacist organization. It’s the one that president Trump refused to condemn during the first debate with vice president Biden, where the president said, stand down, stand by the Proud Boys wasn’t involved in this.

Anne Milgram:

From what we can tell this basically is just that Iran hacked into the Proud Boys website or was able to sort of capitalize on cyber insecurities in their own website. And they send this email from Proud Boys. The subject is vote for Trump or else! The person’s name. And then it says, we are in possession of all your information. You are currently registered as a Democrat and we know this because we have gained access into the entire voting infrastructure. You will vote for Trump on election day, or we will come after you, change your party affiliation to Republican, to let us know you received our message and will comply. We will know which candidate you voted for. I would take this seriously if I were you. And then the person’s name, good luck. That’s a very intimidating email.

Preet Bharara:

Yeah. And what’s weird about that is, and again, it doesn’t necessarily matter. We should take the position that all interference, whether it’s attempted to hurt one side or the other side, or simply sow confusion is bad and in a unified way, we should condemn it. We have an election that’s about to end so people are sort of debating the question of who it’s aimed to hurt. But if you look at the plain language of the email, some of the statements made by DNI Ratcliffe and others don’t seem to make a lot of sense because they’re suggesting that Iran is trying to hurt president Trump, Donald president Trump. It’s a very odd thing.

Preet Bharara:

John Carlin, may we cite one of the thoughtful CAFE hosts who has his own podcast. He said, it looks like these folks were intimidating Democratic voters from voting based on the nature of the emails and separate and apart from that, and I now will very happily say separate and apart from, not withstanding some criticism of that phrase, sowing confusion and doubt is part of a recipe that actually benefits Donald Trump also because if it’s a close election or if the election is not called on November 3rd, is almost certainly will not be, any doubts about what’s going on with absentee ballots and mail-in ballots than if it’s Donald Trump.

Anne Milgram:

Agreed. And any delay in the release of the winner of the election also benefits Donald Trump because remember he sort of runs the apparatus of the federal government. He’s the president of the United States. He also now has six members of the nine member, United States Supreme Court, which we’ll come to in a minute. And he is going to, I believe that if the election goes beyond, sort of, I think we should anticipate it’s going to take a couple of days. So I think we would be very lucky if we found out the day after the election, I’ve heard up to 72 hours. And we can talk about why that is when it comes to how division of elections statewide in all 50 states of the United States and the territories will be counting ballots. And so it’s a really significant thing that we probably won’t know that night if we know within a few days, I think that’s one thing.

Anne Milgram:

If it goes for weeks or potentially months, I think that very much benefits the president who will try to undercut any results of the election that are not favorable to him. We know that from his statements, we know that from a number of other sort of actions that he’s taken. But I think I agree with you very much that any interference with the election by a foreign government is problematic. There’s a great article in Lawfare, by Josh Goldstein, who talks about look, there’s like, and he was talking a lot about Russia too. Again, who we know has basically hacked into these election systems that they have this active measures campaign in the United States and their goal is to elect Trump.

Anne Milgram:

But the fact that that’s their goal in some ways, it’s one piece of it, but there’s this huge other piece, that there’s four other things that Russia is trying to do. One, polarize and disrupt societal cohesion. Two, undermine public confidence in democratic institutions and processes. I think that’s really important. Russia, Putin does not like democracy and is looking very much to undercut it. Number three, spread confusion, generate exhaustion. They’ve been successful at that for sure. And create opposites.

Preet Bharara:

Exhaustion certainly.

Anne Milgram:

Meaning people don’t go to the polls, right? A lot of people could get an email like this and just stay home and four, gain strategic influence over U.S. political decision making and public opinion. So it’s really serious. I thought it was, if you watched the sort of public announcement by DNI Ratcliffe and FBI director, Chris Wray, and you just contrasted their reaction, it was significant. Wray basically said, look, this is bad. We don’t want this kind of voter suppression and interference. And he didn’t take the step that Ratcliffe, which felt a lot more political took, which was to basically say, this is bad for the president, even though that’s completely contrary to what I think is the purpose of Iran’s involvement and what impact that email will actually have.

Preet Bharara:

So one of the things being debated with respect to the election and potential aftermath in the election is how much of an effect does this kind of interference, whether it is from Iran or Russia or someplace else, how much impact does it actually have on the election? I think people are still debating the impact of Russian interference in 2016, but a few people have pointed out something that I think is important as Julian Barnes wrote in the New York Times in the last couple of weeks, he notes that “Federal officials have warned for months that small breaches could be exaggerated to prompt inaccurate charges of widespread voter fraud”. It’s not even the case that it’s the interference itself that causes the problem, it’s what people can do to exploit that interference, even if it’s small. And even if it doesn’t have a direct impact, you could see how after November 3rd, Donald Trump and others might say, look, we can’t trust any of this stuff because some of it may be compromised.

Preet Bharara:

We saw that by the way, in that case, we talked about a few weeks ago with these ballots that were found supposedly in the river in Pennsylvania and with great fanfare, it was discussed. It was made to sound like it was very, very widespread. I mean, all the evidence about voter fraud generally within the United States, as we’ve been talking about for a very long time, is very exaggerated that the chances of an actual in-person fraudulent vote with or without an ID is vanishingly small. And so part of the problem will be the perception crisis and the ways in which even small amounts of interference can be made to render the entire election on trustworthy. Don’t you think?

Anne Milgram:

Yeah, I think this is so important and I think it’s really worth noting that these are seeds being planted by president Trump. And I think we saw Bill Barr, we’ve seen him take action to sort of release voter fraud, voter fraud information in Pennsylvania. Again, it’s a really small amount of voter fraud that takes place. There is some small amount that does occur, but what they’re doing has really nothing to do about those small instances in which they’re caught and people’s votes can be invalidated or people who aren’t allowed to have voted. There can often be redress, but that’s not the point here for them. The point for them is to get a story or some news publication to write an article, which has already happened in reference to some of the allegations made by Barr.

Anne Milgram:

And also the example you just gave and also the Iranian emails that went out and what Russia is doing, all of that gives them, them meaning president Trump and the Republicans, the ability to go out on election day or after and say, see, look at this, we told you there was fraud. You can’t trust any of it. And so, in that same New York Times article by Julian Barnes, he talks about if the race is not called on election night, Russian groups can use their knowledge of local computer systems, their access to those systems and to non-public information. And they can use that to “sow chaos” and doubts about the integrity of the results. And Barnes goes on to say, those steps could fuel Mr. Trump’s unsubstantiated claims that the vote is rigged and that’s where this is going.

Anne Milgram:

And I think we have to be really clear that every article that gets written about it, which is inevitable, we have to be talking about the disinformation campaign and the attempts to influence our election by foreign countries and adversaries. But it really does feed into the narrative that the president wants, which is to basically be able to say I lost because it’s unfair. And therefore I want to have the election invalidated. I want state legislatures to vote the electors in my favor instead of the elected Democratic candidate potentially in a state. And so this could cascade in a way that I think we should all be really clear that this is a setup. And it’s a setup with a very concrete goal in mind.

Preet Bharara:

I mean, the good news on the issue of how widespread actual interference can be, changing people’s votes, hacking into computer systems, whatever you think about our system, it is a very, very decentralized system. And all the states have different rules for how they gather votes, as you’re all discovering and trying to figure out what rules obtain in your particular state. And there is not one huge centralized database for vote, if there were, and some people think that that would be a better way of going about this. It might be more efficient and streamlined, but the danger of that is all you then have to do is figure out how to hack one system. And if you figure out how to hack that one system, you can wreak huge amounts of havoc that can’t happen here.

Anne Milgram:

Right. But can I say something?

Preet Bharara:

Yeah.

Anne Milgram:

And I think that this is a point we don’t talk about enough. You remember probably, or maybe you’ve thought it out, as I sometimes have. I oversaw the state division of elections in New Jersey when I was AG and I ultimately transferred it. I had it transferred to the secretary of state’s office. The AGs office in New Jersey is massive. And that’s a really specialized issue area that I felt. And also obviously the AGs offices, law enforcement. So it felt better not to have it be part of our work, but here’s the real challenge of elections. It is decentralized, it’s run state by state. It is deeply underfunded. There is not enough money. There’s a lot of bureaucracy. And if there’s going to be a problem, and I would just note this for people, if there’s a problem on election day, a lot of it will come from bureaucratic snafus or a lack of funding to election offices. It will end to the fact that poll workers are just hired for a day and they often don’t know a lot about elections.

Anne Milgram:

And so that’s the real challenge on election day, particularly on a day like this, where you have record high numbers of people voting, you have coronavirus, which means people have to be socially distanced. There are a lot of security and safety protocols that have to go into place. So that is the reality of what election day is going to be. And I should say this, one thing I’ve seen a lot and just sort of a note from my time as AG, when we did oversee the elections is that if somebody shows up at a polling place and people don’t know either because they don’t appear in the polling book or because perhaps they’ve moved, the move is often to give somebody a provisional ballot. And the thing that I’ve seen time and time again, is that they can be counted, but they’re not always counted.

Anne Milgram:

And so my very strong advice to folks, if that were to happen to you is to talk to one of the lawyers who’s present. There are always lawyers who are sort of assisting the political campaigns. If you’re a Trump supporter and there will be Trump lawyers there, if you’re a Biden supporter, there will be Biden lawyers there. There are also national numbers you can call. You call those numbers, they get you in front of a judge. And this gets worked out that same day. So your vote absolutely gets counted. That was a long public service announcement.

Preet Bharara:

Yes. I thank you for it.

Anne Milgram:

But really a lot of this, we didn’t see a lot of fraud. We did see some fraud. There is some voter fraud, of course, in elections, people are people, but it’s really, it’s not the thing. The big thing is that this is just a massive logistics operation to run. And that’s why it’s also so good that people are early voting and voting by mail.

Preet Bharara:

So the thing that I think is much more likely to happen, and you see the machinations to put this in place, and this has always been the debate. It’s not voter fraud is voter suppression. And you and I both mentioned Chris Wray a few minutes ago, it’s interesting to note, there’ve been multiple reports, one over the weekend in Axios saying that the president and his chief of staff Mark Meadows are really deeply unhappy with Chris Wray, not because he’s not doing his job, but because in my view, he is. And Chris Wray has, I think held a pretty strong line, not giving into conspiracy theories, not sort of laundering these crazy phrases that the president uses that Bill Barr allows himself to do. And the president’s upset that Chris Wray does not play ball and has not caused an announcement of an investigation into a Hunter Biden or Joe Biden, or done any one of a number of things that would help sway the election, give him some kind of October surprise. And the reporting is that if Trump wins the election, Wray will be fired forthwith.

Anne Milgram:

Look, I expect Wray be fired no matter who wins the election. And you may disagree with this. I think you’re largely right. And first of all, on the election stuff, I think Wray, he’s done an excellent job. He has absolutely done exactly what any FBI director should do.

Preet Bharara:

Yeah. Can I poach on that? How often do you and I say these days that a high ranking Trump official has done an excellent job. That’s how rare that is.

Anne Milgram:

Well, I’m not done. I don’t give him as high marks as you give him, but I do give him high marks on this.

Preet Bharara:

You said excellent.

Anne Milgram:

Although I also go back to, on the election stuff, he’s been excellent. And look, some of it is the contrast to seeing him stand next to the DNI who talks about politics when there was no need to talk politics, let people read the email, whether it benefits president Trump or not, at this moment in time with what they were trying to do is basically say, be aware. We know that there’s this foreign activity into our elections. It’s foreign activity disregard it. Don’t let it stop you from voting. And it said, he makes it sort of this political event, whereas Wray did the exact opposite. But again, let’s just go back to point number one, which is that you don’t get points for doing the right thing. And I feel like you and I are now giving points to people for doing the right things, because it happens so rarely.

Preet Bharara:

So the other ways in which there’ve been threats of ways to suppress the vote is Donald Trump gets behind a podium and says crazy things like, we can send the troops or we can send law enforcement to the polls. So I have good news and bad news on that score. The good news is there are laws that prevent it as an initial matter. The president has no ability to order a local law enforcement, local Sheriffs. I think he’s made reference to this, to the polls for any purpose whatsoever. With voting, we have a Federalist system of law enforcement and the President of The United States can’t call up a police chief in order him to do anything at all. Second, there are federal laws that make it very clear that we are distinguished from banana republics, where elections are handled in particular ways by armed men, we don’t have that in this country.

Preet Bharara:

There’s a particular statute it’s worth remembering, because this will be talked about a bit, 18 U.S. Code section 592, which makes it really clear that you can’t have “Any troops or armed men at any place where a general or special election is held unless such force be necessary to repel armed enemies of the United States.” So if you have sort of armed battalions from Iran or somewhere else at the polls, then you can have troops and armed folks there, otherwise not. There are also provisions in the United States code that may clear that any kind of interference by armed forces is a no-no and a problem, and is punishable by law, either a felony or misdemeanor, that’s the good news.

Preet Bharara:

The bad news, which we should discuss in a second is, I’m not sure how these things are going to be enforced. The relevance of having these laws on the books me is that people in the military or in law enforcement, if they receive an order to do something like go to the polls to intimidate, they will resist those orders because of the deterrent effect of those laws. If they don’t, I don’t know what kind of redress you’re going to have after the intimidation takes place, I don’t know how you undo suppression of votes later. So the line here is the deterrent effect of those laws being on the books and the publication and publicity of those laws being on the books.

Anne Milgram:

Well, it’s more than that also because remember, and the world is changing a little bit right now because of the mail-in voting and the extent of in-person early voting. But as a rule, this is exactly why both political campaigns will send people out that day to basically try to watch and make sure that the integrity of the election is being maintained. And so you have poll watchers, you have officials from both the democratic and Republican party who will be sitting at election sites. Look, when I oversaw elections, these are the kinds of calls that came all day long. We have a concern about something happening here. Okay, what do we know about it? What can we find out? And there’s a lot of, sort of in the moment and there has to be. And that’s one of the reasons why it’s really important that sort of both political parties be represented at each election site. And that way problems can get resolved or stopped.

Anne Milgram:

You don’t want a situation where there’s intimidation happening or a police officer engage intimidation, or a member of the U.S. military engage intimidation that doesn’t get stopped. I don’t think we’re going to see organized and by organized, I mean, a police chief telling a police officer go out and keep all the Biden supporters away because the union has endorsed Trump. I don’t think we’re going to see it in that way. I think we’re more going to see two different things. One is if we see law enforcement, it may be their sort of personal, there was an NYPD officer who recently put out on his sort of mic that goes out vote Trump 2020. He’s been suspended, but that’s the kind of thing I sort of think we might see. But what I think we’re more likely to see is just ordinary citizens. People who’ve been riled up potentially by the president who go out and try to intimidate voters. And that’s where I think the laws become particularly important. And there are federal laws that prohibit any form of force intimidation or threat against voters.

Anne Milgram:

There is a statute that basically also prohibits any type of voter intimidation by a person in connection with the presidential or congressional elections. So the campaign can’t in any way, be coordinating with folks to try to get them to go out and intimidate folks. But I worry a lot more about the individual citizens who are… and tempers are high, we should be honest about this. We’ve seen there was a Trump parade through New York City last weekend. And there was a clash. Some of the Trump folks got out of a car or something they got into it with some Biden supporters or protesters. There’s just a potential for this kind of thing to happen. And again, I think poll workers, states county election site, they’re going to have to be vigilant and not let any of this stuff go on. And if it starts to happen, they’re going to have to stop it as quickly as they can. Because again, it’ll just scare people away from voting, which would be the worst scenario.

Preet Bharara:

All I’m saying is, we recite these laws and we quote from them and we say, they’re on the books. That doesn’t mean that people will not engage in that activity. And I don’t have a lot of trust in Donald Trump’s restraint. We have all these laws on the books and yet you and I still had very full and busy jobs, prosecuting crime. So the laws are good to have and I stand by the view, you need to make sure that leaders at the FBI, leaders in the military, even if there’s tremendous pressure at the end of the day, to do something that is in violation of the letter or spirit of the statutes, we’ve been citing the bill stand up to the president. We haven’t seen a lot of that. And look, I will tell you from talking to people who report on Donald Trump in the last couple of days, his back is up against a wall. I don’t want to overstate what he’s capable of, but this may all be slipping away from him. I know there are people who like to say, well, he’s not really interested being president.

Preet Bharara:

He’s going to start a network. He doesn’t like to lose, and he will cheat so as not to lose. And even in loss, he will say he was victorious. So we haven’t seen anything like this. We have a guy who refuses to commit to the peaceful transfer of power. So if these are not random far-fetched hypotheticals. I mean, he literally says as a commander in chief and the head of all government in the country, that he wants to send armed government officials to the polls, you and I have just quoted from statute saying that that’s completely unlawful. And yet he says it and he says it after I’m sure being told that he can’t do it.

Preet Bharara:

And people like Secretary Esper are making some statements about how they will not do it. Yet the president persists in saying it, I don’t know why we necessarily think that he’s not going to do it, if he insists on saying it. And at the end of the day, the line is in these statutes sort of nominally, but more the line is in the hearts and spines of the people who were in a position to resist a bad order. And I hope we can have faith in that.

Anne Milgram:

Exactly. No, I think that’s a lot of what it’s going to come down to. And we should just also note, because I want to make sure people are clear on this, that the law enforcement folks are gearing up for potential problems. And so it is possible. And Juliette Kayyem, I thought did a great thread on Twitter about the elections generally, which you referenced earlier, but it is possible. You will see national guards members who are near the polling place. You may see law enforcement outside the polling place that is done to make sure that there are no shenanigans. And so they should not be inside the polling place.

Preet Bharara:

It’s to enhance voting not to suppress voting.

Anne Milgram:

Exactly. But I don’t want people to show up and say, well, there’s a police officer standing on the street corner or a member of the National Guard, Donald Trump has done something, that is to be expected. And in fact, I think that a good police department and a good Sheriff’s office right now and the federal agents, law enforcement agencies should be thinking about what if there’s voter intimidation? What if they’re civil unrest? It’s not to say it’s going to happen. It just to say that if you don’t plan for it, it’s a lot harder to respond in the moment. And so I’m very worried about voter intimidation and suppression. And I think there’s a lot of reasons to be worried about that. But I think we should be mindful also that there are some checks and balances in place and that hopefully people will do the right thing.

Preet Bharara:

Yeah. I’m just as an aside, people should bear in mind that if you’re a member of the United States Military, you are duty bound to follow orders, but only lawful orders. And if you’re giving even a patently illegal order, which means in order that a person of ordinary sense and understanding would know to be unlawful, you don’t need to follow that. And some of the things that president Trump has been saying, I think falls into that category. Look what a lot of this is going to come down to is there’s multiple components to this. One is, can people go get their selves to the polls or can they mail their ballots in, but that’s only half the story.

Preet Bharara:

The rest of the story, particularly with respect to absentee voting is who gets counted as Mark Elias said on the Stay Tuned Podcast recently, if you actually managed to get yourself to a poll, the odds are incredibly infinitesimally, small, that your vote will not be counted once you feed your ballot into the machine. Not so, if you mail your ballot in, or even if you drop it off at the drop box for a variety of reasons, and one of those reasons is, well, what happens if you received your ballot by a particular date and you return it depending on the state you’re in, when is the latest time that it can be counted? And we have the skirmish that we’ve talked about before and Wisconsin that went this way and that way in the lower courts. And then we now have a Supreme court decision with respect to Wisconsin that not everyone’s going to be happy with.

Anne Milgram:

Yeah. Let’s talk about a couple of things, which is first, when can the mail-in ballots be counted. And that is, it’s just worth noting that this is one reason why it’s going to take longer for the election results to come out. Because as we noted, there’s 40 million already absentee mail in ballots that have come in and there are 23 States. Well, let’s talk about it in sort of two spaces. The first is in terms of counting, election workers and at least 32 states can start processing ballots. Not necessarily counting them in most states, they can’t count them until election day, but they can start processing them a week or more before election day. And that means they can take them out of envelopes. They can get them ready to count. And they can basically start doing those either in some states before election day and others, they start on election day.

Anne Milgram:

But that is going to take a long time. You’re talking about 40 million ballots by the time we’re through the election, it might even be double that. So you’re talking about a lot of these ballots that are coming in as mail ballots that are going to have to be counted. That’s one piece, another piece, which is important is when ballots have to be postmarked by. And so you’re referencing the Wisconsin case, which I don’t know if people will remember this, but there was a dispute that’s worked its way through the courts as to whether an absentee mail in ballots, since they’re the same thing I’m using them interchangeably. But since a ballot that has been mailed and advanced by a voter, the question was, did it have to be postmarked by election day? Like we do with taxes that your taxes have to be postmarked by the day they’re due, or does it have to be received by the voting office on election day?

Anne Milgram:

And it went to the Supreme Court, the Supreme Court ruled that it has to be received by 8:00 PM on election day. And that was the Republican position that was asserted in the state of Wisconsin. It is contrary to the, and the Republican justices sided with that. What’s notable about that decision, and the reason a lot of people are talking about it is not that it’s surprising that the court went that way, but that Brett Kavanaugh, Justice Kavanaugh basically referenced a previous Supreme Court justice, Justice Rehnquist opinion in the case Bush v. Gore. And that was the 2020 litigation around the counting of ballots in Florida. And what’s important about that case is in that case, Justice Rehnquist basically found that Florida wasn’t appropriately following the method that they should follow for a recount and basically for processing ballots and found that the federal government meaning the United States Supreme court has the right to step in and stop that recount.

Anne Milgram:

And so, it gave enormous power to the United States Supreme Court in terms of allowing the sort of state to vote the electors and to stop the recount when the recount was stopped, it’s worth just noting also that what Justice Kavanaugh is citing to from Justice Rehnquist and the Bush v. Gore opinion, wasn’t even the majority opinion. That was a concurrence that didn’t have a majority of the justices votes. And that’s what Kavanaugh is citing to as a way of citing and sort of trying to make that precedent as a prior holding of the court, when it’s really, it was a concurrence and it was not accepted. It went a step beyond where the full majority was willing to go. And so it’s just really important to be on a lookout for the fact that this may get to the court. This election may get to the court. And that there’s an early indicator of, I think just how deeply ideological and frankly conservative I think this court will be if rulings come to them.

Preet Bharara:

Yeah. And the other thing that’s very sort of angering about Kavanaugh referring to Bush v. Gore is the justices for a lot of reasons in that case, jurisprudential reasons. And also I think for reasons of credibility and faith in their institution, given how controversial a thing it was going to be to basically decide the election by nine unelected men and women in robes was it said, look, our decision today, our rationale today is limited to this case. It doesn’t really have precedential value. So it’s a flip of what we’ve been talking about with Amy Coney Barrett, who we’ve argued and worried about her testimony, that there are certain cases that she will not view as particularly strong precedent or super precedent like revolve the Connecticut, the birth control case.

Preet Bharara:

So we have cases that are precedent should be respected, that we worry she’s not going to respect. And then on the other hand, you have another conservative new Justice, Justice Kavanaugh appointed by Trump who’s taking something that’s on its own face on its own terms, not supposed to be precedent in a particular way, going forward and raising it to the level of that. So you have a sort of a double hypocrisy there as well. Justice Kagan in this opinion, we’ve been discussing essentially in a footnote calls out Kavanaugh’s reasoning, it says “Justice Kavanaugh alleges that suspicions of impropriety will result if absentee ballots flow in after election day and potentially flip the results of an election” but she points out, “But there were no results to flip until all valid votes are counted and nothing could be more suspicious or improper than refusing to tally votes once the clock strikes 12 on election day. To suggest otherwise, especially in these fractious times is to discern the electoral process”.

Preet Bharara:

She’s calling out this very dangerous sort of setting of the table as you’re describing that also aligns with Donald Trump’s rhetorical enterprise, which is to put out in the world this idea that anything that happens after election day, even though they’re validly submitted ballots tens and tens and tens of millions of legitimately submitted ballots. The idea that if it comes in after some supposedly suspicion about that, which by the way, is largely being fermented and manufactured by the president, but that is in some way, a bad thing. And more than that provides a basis not to consider those votes is incredibly dangerous. And makes Bush v. Gore look like something tiny and small. I mean, I just keep looking at what Justice Kavanaugh said, and I’ve said this before about Bill Barr, it’s a sort of laundering of rhetoric from the president. I mean, this whole idea that if the result changes between the end of November 3rd and sometime later, because of new votes coming in as Justice Kagan points out, this is nonsensical. It’s like saying, imagine the first half of the game and one team is winning.

Anne Milgram:

It’s not the results, exactly.

Preet Bharara:

One team is winning in the first half of the game. And I think people would be reasonably suspicious of what happens if the result of that game was flipped in the second half because the other team scored more touchdowns. The election, there are various ways to vote and they’re all legitimate. Some in-person, some by mail and some by dropping off absentee ballots at a drop box and why you would render the second group illegitimate and causing suspicion.

Anne Milgram:

Vote second class. Right? No, totally. I agree. And I think, look, every single vote has to get counted. And that’s true, no matter what political party people are voting from every single vote has to get counted. I think also that we should talk just for a second about what some of the speculation is. Garrett Graff was writing in POLITICO and talked about the fact that many people expect that Trump will be ahead particularly in battleground States, if you just count the election day voting. And so Trump has discouraged people, his supporters from using mail-in ballots. Biden has encouraged his supporters from using them. And so Florida’s a good example, more mail-in ballots have been put in by Democrats and Republicans, but the minute they turned the early voting on the Republicans were out in force. And so there have been a ton of Republicans early voting. Trump is up by two points in Florida, according to polls.

Anne Milgram:

Again, I always take polls with a grain of salt, but there’s a pretty clear indication that there will be heavy Republican voting. So it is very possible just taking that example that you’ll get… And this is one reason why no results, no intermediate results should be released because the results are the final results. That’s the only number that matters. What should happen is that Florida, and they may very well do this. They shouldn’t be reporting while we have X number of votes for Trump. Trump has won Florida on election night when they haven’t finished counting the mail-in ballots, which are equally valid votes.

Preet Bharara:

I’m not sure I fully agree with all of that. Yes, an election needs to be certified by a final vote. But what often happens in fact, what mostly happens in state elections and in federal elections is there is a reasonable calling of a race before there’s an official certification because vote counts come in. And there’s an analysis of what votes remain to be counted and reasonable, good faith, smart, quantitatively balanced analysis causes an outlet like CNN or even Fox or NBC or some other outlet to call the race. And then it’s up to the candidate to concede the state or the race or not. In fact, even the case of Bush v. Gore, everything ended because Gore conceded the race. And in almost every instance in the past a presidential contender concedes.

Preet Bharara:

So there are circumstances under which a state can be called. We don’t have to wait until the electors meet, but it has to be done with respect to what the actual evidence is. And the evidence of voting is. And there’s going to be a lot of evidence of absentee voting as well. The key is for people to reserve judgment at the end of November 3rd, because a huge percentage of the vote will not have been tallied yet in any way.

Anne Milgram:

Right. I think that’s the key point, which is this, the last election, there was a lot of early voting and absentee voting more than there has been previously. This election will have, I think, historic numbers. And it is very possible that a majority of people will not vote in the traditional way. And so we don’t know the exact numbers that it will come back to, but we are seeing, again, almost half the people who voted in 2016 have already voted and a significant two thirds of those were by mail. And so the bottom line is the world is changing. And the question is, at what point there’s a statistical number at which point you can have assurance that the votes aren’t going to change that another candidate can’t win. That there’s sufficient belief that the election results are accurate and will be accurate. That’s one thing.

Anne Milgram:

So I think your point is right. We don’t have to be absolute as we don’t have to wait for the electors, but I also think that this is unchartered territory. There are going to be a lot more mail-in ballots than before, and we have to have fidelity to all those votes, and it shouldn’t be called until we really know that it’s the right outcome.

Preet Bharara:

What you said actually a second ago, I think is very important. And I don’t know what the numbers will ultimately be. And I go back to this rhetoric of Kavanaugh about how unseemly would be if the election flips the other way after November 3rd. I mean, I think at this point, the numbers keep changing every hour and we’re recording this on Tuesday morning. I think it’s upwards of 60 million people who voted early. If at the end of the day, more people have cast their votes in advance of the election, then cast their votes on the day of the election. Then all this rhetoric about it flipping seems to make less sense. I think you’re right about that. In other words, if there were, I’m just making up numbers, 90 million votes cast in advance that need to be counted after the election, because that’s how the rules are. And only 70 million votes cast on the day of the election, which would cause one of the candidates to be ahead.

Preet Bharara:

Then it stands to reason that the counting of the rest of the ballots afterwards, that are greater in number might “flip” the result. That’s not a flip, that’s just the result. Anne, we talked a few weeks ago about this hilarious, that illegal correspondence between lawyers for the Doobie brothers and the actor Bill Murray, based on a line of golf shirts and barring music without permission from the Doobie brothers. We have another example of that we should talk about. And as I tweeted over the weekend, we are somehow oddly in the golden age of legal correspondence, people don’t think of cease-and-desist letters as being a funnier comical or something on which you get a lot of engagement on social media, but I was wrong.

Preet Bharara:

And so now we have the Lincoln project, as you know, a bunch of never-Trumpers conservatives, many of whom supported George W. Bush, who are spending money to attack president Trump and his family and other people in the administration. They put up two billboards in Times Square one has a photo of Jared Kushner with the New Yorkers are going to suffer and that’s their problem. And then another one shows Ivanka Trump, would that sort of Vanna White gesture. I think it’s the way that she held the can of Goya beans, presenting COVID-19 death statistics with a hand gesture. As I said, similar to the way Vanna White presents a vowel and the stats read 33,404 plus New Yorkers, 232,381 plus Americans, and then a lawyer for the family, Marc Kasowitz, who reportedly is one of the people who told Donald Trump to fire me. But I harbor no ill will. Essentially wrote…

Anne Milgram:

Who represents Jared Kushner.

Preet Bharara:

Represents Jared Kushner, wrote to the Lincoln Project threatening to sue based on false malicious and defamatory copy. And he says, “We will sue you for what will doubtless be enormous compensatory and punitive damages.” And then we have a response from the Lincoln Project’s lawyer, Matthew Sanderson, it’s kind of enjoyable.

Anne Milgram:

It is very enjoyable. And I would also note that I think it’s clear that the Lincoln Project put those billboards in Times Square, which is clearly going to go blue in the upcoming presidential election. They put the billboards there to needle Trump and his family. To just sort of go to them a little bit, because they know the president has a huge ego.

Preet Bharara:

Mission accomplished.

Anne Milgram:

Yeah, exactly. So that was their exact goal. So Matthew Sanderson writes on behalf of the Lincoln Project who he represents, dear Mr. Kasowitz, I write to respond to your recent letter in which you threatened to sue my client, the Lincoln Project for openly criticizing Jared Kushner and Ivanka Trump. You boldly predict that the result of your lawsuit, “Will doubtless be enormous compensatory and punitive damages,” please pedal your scare tactics elsewhere. The Lincoln Project will not be intimidated by such empty bluster. Your clients are no longer mere upper East side socialites able to sue at the slightest offense to their personal sensitivities. Mr. Kushner, and Ms. Trump are public officials. They have been public officials since president Trump in a gross act of nepotism awarded Mr. Kushner and Ms. Trump senior white house positions in 2017. The placement of Mr. Kushner and Ms. Trump in these high level white house offices has been disastrous for Americans everywhere, but it is now also devastating to the prospects of your would be lawsuit.

Anne Milgram:

And then the letter goes on to address one of the complaints of Ivanka and Jared’s lawyer was that they have Ivanka Trump holding her hands in this way. And again, that picture is taken from when she was plugging Goya black beans. So the lawyer goes on to write, the Lincoln Project replaced that can of Goya black beans with statistical references to 33,366 dead New Yorkers and 221,247 dead Americans. Why? Because Ms. Trump endorses the Trump administration policies that have led to an unacceptable number of American deaths every bit, as much as she once endorsed that can of beans. This truth may cause Ms. Trump personal discomfort, but her bruised self-image does not change the fact that this billboard accurately depicts her support of a federal response that has utterly failed to prevent an unmitigated tragedy for the United States. The letter then goes on to close by saying, these billboards are not causing Mr. Kushner and Ms. Trump’s standing with the public to plummet their incompetence is. This isn’t over, Mr. Kushner. And Ms. Trump we’ll hear more from the Lincoln Project soon. Cordially, Matthew T. Sanders.

Preet Bharara:

Matthew T. Sanders, cordially. And you have a nice day too.

Anne Milgram:

And also we’ve got more, we’ve got more coming. And look, I mean I think he’s…

Preet Bharara:

Strong letter not to follow because this was a strong letter.

Anne Milgram:

Exactly. And look, he’s right that this is just a lot of barking, I think by Kasowitz, by president Trump’s lawyer who now represents Ivanka and Jared, they are public figures. There is a very, very different standard when people step into the public limelight as they have. And so there’s really, in my view, the Lincoln Project has a very strong case.

Preet Bharara:

I don’t think there’ll be a suit here, do you know?

Anne Milgram:

No. Definitely not.

Preet Bharara:

It also caused a lot of attention to these billboards that a lot of people probably were not aware of beforehand.

Anne Milgram:

Yeah. Well, and that probably would have come down right after the election. And so it politically is done because of ego. It’s not done because it was a smart political move or the right legal move, it was done to make them feel better. And potentially, I think this is one of the things that the Trump organization has also frequently done to sort of send that missive saying, don’t do more, to try to check additional activity. And what I love about the Lincoln Project letter is, Oh yeah, we’re going to double down and we’re going to keep doing what we’re doing because we can do that under the law. And if you want to be upset at anybody, be upset at yourselves for what you’ve done.

Preet Bharara:

It’s a great irony. One of the great sort of through lines of irony in this administration on the part of Trump, his son-in-law, his daughter is that at every juncture, whether they meet a threshold or not want to avail themselves of legal process. He wants to lock up his adversary, whether it’s Hillary Clinton or Joe Biden or someone who was not as adversary Barack Obama, he’s called for legal process for the jailing of all those people. And then in his private life, or when you have billboards like this, members of that family think, well, we need to get a lawyer to do something about them at the same time that they don’t follow rules, procedures, legal precedents at all. It’s a heads I win, tails you lose. And their first instinct in all matters, whether it’s a business matter or public persuasion or an election or anything else is to resort to some legal cudgel. It doesn’t work and hopefully it will not work after this election either. On that note, everybody.

Anne Milgram:

I hope we have more letters to read coming, in the future.

Preet Bharara:

I hope so too. I hope so too. So say seven days folks, most important election, I think in the history of the country, not just in our lifetimes, some people may disagree with that, but I think it’s in the running for most important election in the country’s history. Reminder, Anne and I will not have an episode of this podcast next Tuesday, because that evening you’re going to be following the returns, not listening to us, but the next morning, all of the CAFE hosts will have a round table discussion of what happened and where we go from here.

Anne Milgram:

And in the meantime, if you have any questions, comments, please send them to us at [email protected] and we’ll do our best to answer them. Thanks, Preet.

Preet Bharara:

Thanks, Anne. 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 Margo Malley. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.