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October 28, 2019

CAFE Insider 10/28: Baghdadi Dies & Impeachment Quickens

  • Show Notes
  • Transcript

In this episode of the CAFE Insider podcast, “Baghdadi Dies & Impeachment Quickens,” co-hosts Preet Bharara and Anne Milgram break down the latest developments:

— Elusive ISIS leader Abu Bakr al-Baghdadi was killed in a U.S. special operations raid in Idlib, Syria

— District Court Judge Beryl Howell ordered the Justice Department to turn over to the House Judiciary Committee grand jury materials former Special Counsel Robert Mueller’s investigation

— Key witnesses continue to testify in the impeachment inquiry, including Bill Taylor, the top U.S. diplomat to Ukraine, who confirmed last week that President Trump conditioned military aid to Ukraine on investigations that could help him politically

— The New York Times report that John Durham’s investigation into the origins of the FBI’s Trump-Russia probe has evolved into a criminal inquiry, raising a range of unanswered questions

— Rudy Giuliani is reportedly the target of two federal investigations and subject of two pocket dialing mishaps

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



  • Tweet by Moms Demand Action founder Shannon Watts sharing a picture with former Colorado Governor John Hickenlooper backstage before the Stay Tuned live show in Denver, 10/24/19
  • President Trump’s remarks at a shale-energy conference in Pittsburgh where he said that “a big beautiful wall” would be built in Colorado, 10/23/19
  • Preet’s Tweet commenting on Trump’s Colorado Wall remark


  • “President Trump: ISIS leader Abu Bakr al-Baghdadi is dead,” CNN, 10/27/19
  • “Bin Laden court case dismissed,” The Washington Post, 6/17/11


Closed-door House proceedings

  • Rules of the House of Representatives, 114th Congress (Rule XI: Procedures of Committees and Unfinished Business)
  • House Intelligence Committee Chairman Adam Schiff’s “Dear Colleagues” October 16 letter
  • “House Democrats look to take impeachment probe public as soon as mid-November,” The Washington Post, 10/23/19

GOP stormed the SCIF

  • “Republicans storm closed-door impeachment hearing as escalating Ukraine scandal threatens Trump,” The Washington Post, 10/23/19
  • “Republicans Stormed Into The Impeachment Investigation’s Secure Room, And It Was Absolute Madness,” BuzzFeed, 10/23/19
  • “GOP ‘Storming’ of Secure Facility for Impeachment Proceedings: An Explainer,” Just Security, 10/23/19
  • “National Security Figures to Testify: Impeachment Update,” Bloomberg, 10/23/19

District Court Judge Howell’s ruling

  • Memorandum Opinion Granting the Application of the Committee on the Judiciary, U.S. House of Representatives, U.S. District Court for the District of Columbia, Judge Beryl Howell, 10/25/19
  • “Impeachment Inquiry Is Legal, Judge Rules, Giving Democrats a Victory,” The New York Times, 10/25/19

Unchecked presidential power

  • “Trump couldn’t be charged for a Fifth Avenue shooting while in office, his lawyer argues,” CNN, 10/23/19 (audio clip of Trump attorney William Consovoy’s exchange with Judge Chin)
  • “Second Circuit Court of Appeals: ‘Trump v. Vance’ Oral Argument On Turning Over Trump’s Tax Returns,” RealClear Politics, 10/23/19

Congressional testimonies

  • Opening statement of Ambassador Bill Taylor to impeachment investigators, 10/22/19
  • “6 Key Revelations of Taylor’s Opening Statement to Impeachment Investigators,” The New York Times, 10/22/19
  • E.U. Ambassador Gordon Sondland’s opening statement to Congress, 10/17/19
  • ComplaintKupperman v. House of Representatives of the U.S.A. et al., U.S. District Court for the District of Columbia, 10/25/19
  • Letter from chairs of the House committees on Intelligence, Foreign Affairs, and Oversight to Charles Kupperman’s attorneys stating that their client remains legally obligated to comply with a subpoena and appear for a deposition on Monday, October 28th, 10/26/19
  • “Bolton’s former deputy fails to show up for Hill deposition as he seeks court ruling to resolve dispute over testifying,” The Washington Post, 10/28/19
  • “Executive privilege mentioned in case of Giuliani associates,” The Washington Post, 10/23/19


  • Attorney General’s guidelines on general crime investigations,
  • “Justice Dept. Is Said to Open Criminal Inquiry Into Its Own Russia Investigation,” The New York Times, 10/24/19
  • “Justice Department watchdog says highly anticipated FISA report is ‘nearing completion’,” CBS News, 10/24/19
  • “Barr personally asked foreign officials to aid inquiry into CIA, FBI activities in 2016,” The Washington Post, 9/30/19


  • “Giuliani probe snowballs,” Politico, 10/25/19
  • “Is Rudy Giuliani going to jail?,” Politico, 10/24/19
  • “Giuliani associates Lev Parnas and Igor Fruman plead not guilty in campaign finance case,” The Washington Post, 10/23/19
  • “Rudy Giuliani butt-dials NBC reporter, heard discussing need for cash and trashing Bidens,” NBC News, 10/25/19

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

Anne Milgram:             And I’m Anne Milgram.

Preet Bharara:              How you doing, Anne?

Anne Milgram:             I’m good. How was your trip to Denver?

Preet Bharara:              It was great. I had a nice time.

Anne Milgram:             I heard it was going to snow there yesterday.

Preet Bharara:              It’s snowed the day that I landed, which is the day before it was also the day that the President of United States said we’re going to build a beautiful wall in Colorado.

Anne Milgram:             That’s right. Did you find it?

Preet Bharara:              I looked for it. I looked for it. I couldn’t find it. One of the guests we had on stage was Governor Hickenlooper running for the Senate. He didn’t understand the wall thing either. And Shannon Watts and we have two shows coming up November 5th in Minneapolis and November 12th in Detroit, Michigan.

Anne Milgram:             Oh, fantastic.

Preet Bharara:              So café.com slash tour.

Anne Milgram:             Are you going to put them out on Stay Tuned?

Preet Bharara:              Yes.

Anne Milgram:             Great. I’m excited to hear Denver.

Preet Bharara:              I believe so. It was a nice time. Denver’s a great city.

Anne Milgram:             It’s a great city. Yeah.

Preet Bharara:              We have a lot to talk about.

Anne Milgram:             Yes.

Preet Bharara:              So we had a whole bunch of issues we were going to discuss. But one thing maybe we should begin with new since we touched base last week was yesterday morning. The President announced that the founder of ISIS, the creator of ISIS, who actually was not Barack Obama, although the President says that sometimes, but Abu Bakr al-Baghdadi is dead. Based on a special ops operation. That’s good news.

Anne Milgram:             Yes, it’s incredibly good news and important news. Al-Baghdadi has been the head of ISIS since I think he started it in 2010. And so he’s been on the most wanted list for a long time. He’s been a high-level target of the American government. And so it’s really important, and it’s a very good thing. There are issues that’s surround how it was done because of the fact that the President pulled out of Syria abruptly. It’s a really interesting story about how complicated this ended up being. But the fact that they were successful is incredibly important and really a tribute to US Special Forces.

Preet Bharara:              Yeah, that was the important point yesterday, and there’s criticism to be lobbied against the President based on his statement and based on this other emerging news about why it happened when it did. But I don’t know sometimes people should just focus on the good thing that happened.

Anne Milgram:             Yes.

Preet Bharara:              I sent out a tweet that said among other things we’re safer now. And I got all this response from people saying, “BS, we’re not. Why do you say that?” And I’m not a military expert nor are the people who said that they didn’t believe we were safer. But when Bin Laden was killed some years ago, I think it was appropriate to say it made us safer because a particular symbol had gone. And there’s no evidence that Al-Qaeda got stronger after Bin Laden went. Obviously, it doesn’t mean we’re safe. It doesn’t mean that we’re done. It doesn’t mean they’re not going to be people who step in to try to fill the void.

Anne Milgram:             There will be. There will be, yes.

Preet Bharara:              Yeah, of course, and try to take revenge for that.

Anne Milgram:             And that will happen too. But you’re right in saying that there’s an important moment when the leadership of the terrorist organizations and the jihadist organizations are taken out and it matters and it makes us safer I believe as well.

Trump:                         Abu Bakr al-Baghdadi is dead. He was the founder and leader of ISIS, the most ruthless and violent terror organization anywhere in the world.

Anne Milgram:             I will say that I watched the President yesterday morning. And I thought it was incredibly odd. And there are a lot of criticisms that are specific.

Preet Bharara:              And it’s different from other times. How?

Anne Milgram:             He seemed almost I don’t know maybe it’s that he was reading from a more detailed script. There was something that felt very strange about the whole thing. It felt odd, but the overall-

Preet Bharara:              Did it feel narcissistic?

Anne Milgram:             It did. It did. But the overall takeaway I think you’re right is to say we should have a moment of basically saying like it is a good thing. And the Special Forces folks have been planning this for years and working on it. And this has been a high priority for the US government for a long time.

Preet Bharara:              There’s some reporting I don’t know what to make of it that they actually had identified Baghdadi’s location some months ago. And if you believe some of the reporting, and again, I don’t know what to make of it yet. That they had to scramble a little bit to do this operation because of the planned withdrawal, and if that’s true. That’s not a good thing.

Anne Milgram:             No, it’s not. And it’s worth focusing a little bit on the process of this because a lot of times people associate the sort of process with the outcome and the outcome here was a good one. And so it’s important that if it is the case that the President’s erratic approach to foreign policy and withdrawing folks from northern Syria at the last minute when it had not been anticipated that we would do that.

Anne Milgram:             That the fact that we got lucky here and that the Special Forces team was still able to pull it off while we had some manpower and access to infrastructure and connections in northern Syria, the fact that it worked, it’s something to be applauded, but if the reporting is true. It’s not a method that we want to see happen in the future. You do not want to be erratic when you think about how you plan national security or how the US for Special Forces and our military abroad acts.

Preet Bharara:              Or when you’re trying to oversee the economy.

Anne Milgram:             Yes, no. Totally. Totally.

Preet Bharara:              It’s kind of like on all points.

Anne Milgram:             I agree completely.

Preet Bharara:              You don’t want to be right.

Anne Milgram:             I feel like in foreign policy though, and national security, it feels even more fraught in the sense of the withdrawal now opens that space to the Russians and to a lot of other problems in northern Syria. And so this stuff matters enormously. And we almost potentially lost an opportunity to do something that we wanted to do for a long time

Preet Bharara:              If the reporting is true, can I say something that’s semi-controversial?

Anne Milgram:             Yes.

Preet Bharara:              So there’s a lot of focus on the President. Two things. One, how detailed he was about the operation. And how much sort of in gory detail he described things. And he described a couple of times the way in which Baghdadi acted before he detonated his vest bomb. And he said a number of times, he was whimpering and he died like a dog. I don’t know how dogs die. The fact that metaphor applies is the semi-controversial part. I’ve got no problem in describing somebody like that. And sort of reducing him in death, so that he’s less likely to be a martyr and reducing his image.

Preet Bharara:              There were attempts to do that. I don’t know if they were true or not about Bin Laden, and how he tried to use his wife as a shield and show that he was a coward. Because I think there is a messaging interest, an anti-terrorism messaging interest in describing somebody who has caused so much pain and suffering and engaged in so much cruelty to deprive that person the idea of martyrdom an heroic death. Notwithstanding whether or not he was making some stuff up. The idea that we are diminishing this person in his death. I have no problem with that whatsoever.

Anne Milgram:             I didn’t like the whole press conference. And so let’s separate it out into a couple of different pieces. My feeling is that Al-Baghdadi will still be a martyr to people in ISIS and people who are vulnerable to becoming jihadist. So I don’t know that I think it’s messaging that really reaches the people who we’re talking about. What I didn’t like about it, and again, I want to separate it from believing that the right thing happened. I also frankly grew up with a family where you don’t get points for doing the right thing. And so I understand the victory lap that the President is taking.

Preet Bharara:              Or for doing what other people have done or for taking credit for what other people have done. Look, I actually do think the presidents deserve some credit for approving missions that can go awry.

Anne Milgram:             Yes, it’s high risk for sure.

Preet Bharara:              And for which they will be blamed. I think Obama deserved that and I think the President deserves it because he could have said no. And things would have been different.

Anne Milgram:             And you could lose American lives. And so it’s a risky calculation.

Preet Bharara:              However, as people have been circulating since yesterday President Trump, some years ago after Bin Laden was killed, he made it a point to say, “Stop congratulating Barack Obama, he didn’t kill Bin Laden, the Navy SEALs did.” And so now here he is.

Trump:                         He died after running into a dead-end tunnel, whimpering and crying and screaming all the way.

Anne Milgram:             There were a number of moments in that press conference that made me uncomfortable, and it was less this. Although this felt gratuitous to me unnecessary and sort of he could have said it different ways I think. He could have said it better in my view. But the other piece was the amount of detail he provided on a number of things, including the information that was seized I think is deeply problematic and was just a really bad call by the President to do that. The more detail you put out, the more questions can be asked.

Anne Milgram:             And also, essentially in saying we recovered all this ISIS material, you’re tipping off all the sleeper cells. You’re tipping off everyone around the world who may have already guessed that we now have access to really important intelligence. But now they know for sure that we have it and we’re going to use it.

Preet Bharara:              That’s sort of-

Anne Milgram:             It’s just is unnecessary.

Preet Bharara:              If they were there I think they would have reasonably suppose other information was gathered. Just like it was from the compound in Abbottabad where Bin Laden was killed. The other interesting thing is, I saw in my Twitter feed, and elsewhere lots of folks saying, “Well, I don’t believe it.” So there’s conspiracy theories and-

Anne Milgram:             What the President said, yeah.

Preet Bharara:              Oh, no. I don’t believe that he’s dead.

Anne Milgram:             Oh, interesting.

Preet Bharara:              There have been other times when people have suggested that he was killed, those were air raids. And that information was wrong. There’s some people just not going to believe that it happened. And it’s just something the American government is saying. I trust that it did happen.

Anne Milgram:             Me too.

Preet Bharara:              But there will be people who won’t. And I don’t know what the proof is going to be. And I think I’ve told this story before. We had Bin Laden under indictment in the Southern District for many, many years. And when someone dies who’s under indictment, you formally dismissed the indictment because you can’t prosecute them.

Anne Milgram:             Yeah. [crosstalk 00:09:16] by death.

Preet Bharara:              After they and you file what’s called nolle and I signed that one. And it was rejected by Judge Kaplan initially.

Anne Milgram:             How come?

Preet Bharara:              He wanted more proof and so we had to put in a declaration from a member of the intelligence community to recite the DNA testing that was done. Because there was DNA testing done to show that it matched unknown samples of the DNA of the actual Osama bin Laden and then he dismissed the indictment. So it’ll be interesting to see what conspiracy theories take hold.

Anne Milgram:             That picture that was put out of the Situation Room. So there’s different reporting around it.

Preet Bharara:              Not very diverse.

Anne Milgram:             No, no, definitely not. A lot of older white men for sure. But also there was some indication that maybe it was taken after the raid was completed. I don’t know. I’m very curious to know if this was staged. I think I’m just very curious about that. And there’s some reporting that the President was not present for some of this. And I don’t know.

Anne Milgram:             Again, here’s the issue. I’m not sure I care. I just think if you’re going to try to benefit from it, politically, it should be authentic and true. And so there was a question I had yesterday of like are we staging photo ops? Are they authentic? If it’s authentic, I support it.

Preet Bharara:              One more thing, I think we’re going to move off this. But then I remember one other thing. And that’s the news that’s been confirmed that the President notified Putin, and I think Turkey before he notified Nancy Pelosi, and it seems like he notified some people on the Republican side on the House and in the Senate, and not Nancy Pelosi.

Preet Bharara:              So one thing I think we should clarify, and I think this is true. It may have been prudent and wise and respectful to let the Gang of Eight know that the two leaders in the House, the two leaders in the Senate, and then the chair and ranking members of the intelligence committees in the House and the Senate, who are required to be apprised of certain covert operations being done by the intelligence community, and people think it’s a violation.

Preet Bharara:              And my understanding is the Gang of Eight was notified when the Osama bin Laden operation happened because that was a CIA operation. This was a Department of Defense operation. So people who are more knowledgeable about this than I am have said the requirement notification was not there because it was Department of Defense and not CIA. What do you make of that?

Anne Milgram:             I think forget the requirements for just a minute because my reaction to this, I was deeply troubled by this. And I’m glad you raised it because, in many ways, it’s one of the more important conversations that we should have about democracy in America, which is that the President could have made a decision to notify no one, which would have been one decision.

Anne Milgram:             It’s another thing to basically say, I will only notify members of my political party, a handful of senators from my party and the President of Russia because I trust them and I don’t trust people from the opposing party. And that is a terrible thing to say when it comes to America’s national security.

Preet Bharara:              Well, there is no evidence that any classified information has ever been leaked by Nancy Pelosi or Senator Schumer or anyone else.

Anne Milgram:             And they wouldn’t have done it, they wouldn’t have leaked anything. So it was a power play. And it was a power play at the expense of the American public. But even more than that, the people who stormed the SCIF last week, and we’ll talk about this-

Preet Bharara:              We’ll get to that.

Anne Milgram:             … were the Republicans. And it’s like if you are going to really call out people who are disregarding important national security things. It’s not Nancy Pelosi, who understands and is part of the Gang of Eight and has been read into many things before. So it felt very petty to me, and I think it’s a bad day. I don’t want to see the Democrats do it to the Republicans either. I want to be really clear that the President should brief the Gang of Eight. It’s the right thing.

Anne Milgram:             I think the idea that there would have been a leak is completely absurd. And if you made a decision that something was so sensitive that you told absolutely no one, I’m not sure I would agree with that. But I would give that to him. This feels different. What do you think?

Preet Bharara:              Yeah, no, I agree with all that. A sign in some ways of the dramatic deterioration in rational argument I think arises from this incident. That is I see people on television and on social media say, “Can you believe that Nancy Pelosi and others could not be told about this operation because they would have leaked it?” And what does it say that they weren’t told. And they’re saying that’s not to the detriment of the President’s reputation. They’re taking it as gospel that there’s a good faith reason to do it and saying that its absurd logic.

Preet Bharara:              Like what does it say the Donald Trump couldn’t tell Nancy Pelosi and they surmise from that that means well then Nancy Pelosi is a terrible person un-American, unpatriotic, and would have put Special Forces in harm’s way. And that’s not how logic works. With respect to Putin, I guess there was some argument that we needed their cooperation because there’s some suggestion that we use their airspace. I don’t know how much the credit that. I also don’t know what it means there’s reporting that Putin was one of the first people told that it successful after the aerospace issue had happened. So I don’t know.

Anne Milgram:             I don’t know either. And I do think that there’s been a little bit of contradictory reporting on this question. And again, look, the biggest part of this is this idea that we are so politically partisan that we put politics above national security and the existing procedures and processes in Congress. And look, I don’t think even if he wasn’t required, this has been the tradition he gets to decide whether or not he does it, but then you can’t breathe just one side, which is your side.

Preet Bharara:              So let’s turn to what’s going on in the House in connection with impeachment inquiries. We get this question all the time and we have a well-framed by a listener, Lisa Rakowski, who says, “Hey, can you both explain why the hearings are behind closed doors? I would think it’s because you don’t want future witnesses to see what others say is that correct? #askPreet.” So yeah, that’s one good reason and I think Adam Schiff the chairman of the intel committee has said that’s a reason.

Preet Bharara:              But the other thing to make clear to folks is in any real investigation that happens in the world other than a spectacle you see in the House of Representatives. In any real investigation that you oversaw, that I oversaw, or that we participated in personally, all the inquiry happens behind closed doors.

Anne Milgram:             Yes.

Preet Bharara:              And then later so that everyone’s rights are preserved and justice is done and seen to be done. You have a public forum like a criminal trial, or a public hearing to suppress the evidence. People have the right to counsel and all sorts of other things attached. But imagine if cops started doing murder investigations, and the only way you could do it was at a town hall, and every potential suspect gets questioned in front of 1000 people. Yes, people can tailor their testimony. People can flee.

Anne Milgram:             It’s also not fair to them.

Preet Bharara:              It’s also not… Exactly and we say all the time, how many times have you and I said that there is no truth or light generated from these five-minute rounds in these hearings that the House does. And we’ve said all the time that the better way to do this is to let a professional person do it like Barry Berke did for the one hearing with respect to Corey Lewandowski, or the way that we actually did it. I conducted investigations. I lead an investigation of the Department of Justice when I worked in the Senate.

Preet Bharara:              And do you know what we did people like me and my counterparts who are counsels, we sat in rooms, and we took depositions under oath for hours and hours at a time. And that was not to do it in secret. It was not a star chamber. That was like a convenient and effective way and an efficient way to get material. And then based on what you had the members, Senator Schumer and Senator Specter and the others then have a public hearing where they’re not wasting everyone’s time and their inquiry is focused, and that’s what’s happening here.

Anne Milgram:             Yeah, exactly. And I couldn’t say strongly enough how important I think it is that they’re doing it this way. Because otherwise, one, it’s a political charade. We’ve seen that it’s not effective. The point right now is to get information and to find out what happened. There’s a reason why that’s done in grand juries across the United States behind closed doors. It is the most effective way to get information.

Anne Milgram:             And if someone is not charged, you’re not ruining their reputation in the process. And so it’s a really important bedrock of how we do these types of investigations. And they’re doing it well. It is behind closed doors. They’re actually doing the whole committees and the Republicans are there.

Preet Bharara:              Yes. It’s different from a Federal Grand Jury, where there’s no one who has the interests of the defendant at heart in the room. It’s bizarre. There’s this constant suggestion and accusation that Republicans are being locked out. Because there are three committees that are involved, and the members of those committees both Democrat and Republican, as I understand it, have access to everything. And can come to these meetings and can come to these depositions. Some of them have chosen not to. And when you have this group of Republicans, some of whom are on those committees actually, storming into the SCIF, the secured facility.

Anne Milgram:             That’s the part I don’t understand. When you’re on the committee and you can just walk in. Why do you storm it-?

Preet Bharara:              And they’re saying Republicans at large in the House don’t have access to this material. Well, you know, who else doesn’t have access to the material? Democrats at large in the House who are not on those committees. And I think at the end of the day, it’s clear that they will end up having public hearings. I don’t know what the excuse is going to be then.

Anne Milgram:             There’s no doubt that there will be public hearings. There’s no doubt that the evidence that’s relevant to the inquiry will become public, whether it’s through transcripts and public hearings or just public hearings. I expect we’ll see a lot of it. One thing to point out, though, is that we should expect these attacks to continue. The opening statements of witnesses are being released, and they have been terrible for the President of the United States.

Anne Milgram:             And so what the Republicans have been doing under the Trump presidency is trying very much this was true on Russia. They would like to do this on Ukraine is control the narrative and they can’t. This is about spin and PR. And it’s not about not having a voice in that room because they do. It’s about wanting to control the public information that comes out.

Anne Milgram:             And what’s extraordinary, and we’ll talk about this in a minute, but it is a constant drumbeat both of corroboration of the initial allegations made by the whistleblower, but also of additional damning information about what happened with the President abusing his authority. And so it is a sign of how concerned they are that we are hearing all these complaints about the process, which in truth is the process followed across United States of America. And it’s a fair and important process.

Preet Bharara:              Here’s another issue that arises in connection with all of this. And that is whether or not the House of Representatives should have a full vote. We talked about it a couple of times. And I think there’s something clarifying that is set forth in an opinion written by DC District Court Judge Beryl Howell, who ruled on a related matter, which is somewhat significant. I don’t think it’s the hugest thing in the world.

Anne Milgram:             Yeah. But let’s stop and just talking about what it is for a second because I do think it’s important. The House committees sought to get the redacted Grand Jury material from the Mueller Report. Remember with the Mueller Report, there were not many reactions, but there were some reactions. And what the House Committee said to the judge was, we’re conducting an impeachment inquiry. We want to get this information as part of that. It’s relevant to this inquiry into whether or not the President of the United States is guilty of bribery, treason or high crimes and misdemeanors and the judge said?

Preet Bharara:              You can have it. You can have it all and found the administration’s arguments unpersuasive. And the thing that I think is important that people are missing sight of is on the question of what it means for there to be an impeachment inquiry that’s valid and underway. Does there need to be a vote in the House or not? And Republicans or allies of the President keep saying, well, we had such a vote when we had the Nixon Impeachment. We had such a vote when we had the Clinton Impeachment.

Preet Bharara:              And what they’re forgetting is that in each of those cases, as Judge Howell notes explicitly in her opinion. Yeah, but the impeachment inquiries were underway and validly underway before they had that vote. And I still think that there’s some point where Nancy Pelosi will hold a vote. But it’s not necessary. It’s not required. Grand Jury material was given over in prior impeachment proceedings to the House before they had the vote. So there’s a little bit of truth to both sides that you don’t need to have it, which you absolutely don’t. And there were votes previously, but not necessarily at this early stage.

Anne Milgram:             I think they said in the Clinton investigation. It was four months after the investigation had started. I think it’s important also the judge’s finding which is, “The need for continued secrecy is minimal and thus easily outweighed by the House Judiciary committee’s compelling need for the material. Tipping the scale even further toward disclosure is the public’s interest in a diligent and thorough investigation into and in a final determination about potentially impeachable conduct by the President described in the Mueller Report.”

Anne Milgram:             She’s basically saying like, look, they’ve made a strong argument in favor of why this material is needed. There’s not a lot of reason not to turn it over. And this is a valid impeachment inquiry. And I think that’s important because as you know one of the former National Security Advisor, John Bolton’s deputy, who is now basically gone to a court to say, “Do I have to comply with this subpoena?”

Anne Milgram:             And part of this conversation will be about is this a legitimate Impeachment Inquiry? And so Judge Howell ruled in the Mueller question related to the Mueller Report, but this is a question that the courts I think are going to have to address.

Preet Bharara:              They are related issues in other judicial proceedings that are happening around the country, including here in New York. And that is whether it is okay for either the House or for prosecutors to investigate misconduct on the part of the President at all. And we’re jumping around a little bit here. But there is this extraordinary proceeding that took place in the Second Circuit Court of Appeals where the administration where the White House appealed a ruling by a lower court judge as to whether or not Cy Vance, the local district attorney can get tax returns of the President.

Preet Bharara:              And there are various argument you could make about relevance and about secrecy, and how sacrosanct tax records are, etc. They are taking the position that the United States cannot be investigated by anyone, including the district attorney, which is problematic for a number of reasons, including that the obviously opinions that we’ve discussed here, ad nauseam, explicitly make clear that the President may not be indicted while he’s sitting in office, but he’s certainly able to be investigated.

Preet Bharara:              And that’s why Bob Mueller did his investigation and said we want to do this while memories are fresh and while documents are available. And then there was extraordinary maybe you can read this. There was extraordinary exchange between Judge Chin who I know fairly well from the Southern District, and a lawyer for the President United States Mr. Consovoy. Judge Chin asks him this question.

Anne Milgram:             What’s your view on the Fifth Avenue example? The lawyer arguing for the DA’s his office has basically said, you could imagine it would be necessary or at least perhaps a good idea to indict a sitting President, quote, if he, for example, did pull out a handgun and shoot someone on Fifth Avenue. So Judge Chin is basically referencing this argument. And he says, “What’s your view on the Fifth Avenue example?”

Judge Chin:                   So what’s your view on the Fifth Avenue example? The local authorities couldn’t investigate. They couldn’t do anything about it.

Mr. Consovoy:              I think once a President is removed from office, any local authority, this is not a permanent immunity.

Judge Chin:                   Well, I’m talking about while in office.

Mr. Consovoy:              Nope.

Judge Chin:                   Where’s the hypo? Nothing could be done. That’s your position?

Mr. Consovoy:              That is correct. That is correct.

Anne Milgram:             Judge Chin wants to make sure that he’s completely clear on this. And he says, “That’s the hypo, nothing could be done. That’s your position?” And again, Trump’s lawyer says, “That is correct.”

Preet Bharara:              It’s insane.

Anne Milgram:             It’s insane. What he’s basically saying is that the President has immunity from criminal prosecution.

Preet Bharara:              And investigation.

Anne Milgram:             And investigation while President and what here’s what’s really important about that, the most obvious thing to say about it is that if we wanted the President to be immune, the United States Constitution would say so and it does not say so. And there was so much care given in the Constitution around the language of the presidency. Because remember, we had just thrown over a king. And so the question is, what is the presidency going to be like? The United States Constitution does not say that the President is immune, and that is so important.

Anne Milgram:             It provides for impeachment, but the idea that the President could not be investigated or potentially prosecuted by local authorities, it’s nowhere there and or federal authorities, frankly. And so OLC has this opinion saying you can indict a sitting president, but this is an unbelievable example of the view of Presidential power here it is completely unchecked. And I don’t think we’ve ever, I mean you may know better than I don’t think we’ve ever seen someone make this argument that the President can do anything he wants because he’s the President.

Preet Bharara:              And they haven’t really made it before. Because this is what Robert Mueller did. He conducted an investigation and they didn’t cooperate a lot. But they cooperated some. And I think it’s also just sort of silly. I think, from time to time, we should take a moment and pause on the idea that these aren’t not robots who are making these arguments. These are lawyers some of whom are in good standing, not all but some of whom reputationally.

Preet Bharara:              And they have careers and they have to consider what positions… And I remember once being in court very early on as a prosecutor, and the defense lawyer got up, and I was kind of stunned by this. The defense lawyer got up there and made a preposterous argument. A preposterous bail argument. It was really silly. And the judge said, and she was new, and I was new. And the judge said to her “I presume your client has ordered you to make that argument.”

Preet Bharara:              So that is what it is. But you need to think about your own reputation as a lawyer before this court. And I think that stuff matters. And I think there are arguments to be made. And I’ve seen great lawyers make arguments that are at the periphery of reasonableness. But this goes way beyond.

Anne Milgram:             Way beyond. Way beyond and I expect just to sort of play this out a little. I expect the Second Circuit will strongly reject that argument by the President, which they should. It’s going to go to the Supreme Court. And so the quicker they can get this done and get this to the Supreme Court. But ultimately, this is really… It was an astonishing argument that was made and in some ways, it sharpens the question for the Supreme Court about the legitimacy of this subpoena. And the Supreme Court will have to decide the extent of the President’s authority. I personally think the subpoena should be upheld.

Preet Bharara:              Yeah, I think it will be.

Anne Milgram:             Yeah, time will tell but I definitely think the Second Circuit is going to uphold it and then I think it goes to Supreme Court.

Preet Bharara:              And the same will probably be true of Judge Howell’s ruling in the DC Circuit about the Grand Jury material. That’s not even at the Appellate level yet. People should understand. That’s a District Court judge that will go to the DC circuit and we’ll see what happens there. But there’s a good template of argument and rationale in Judge Howell’s opinion that I think will have bearing on what’s going on in these other courts too.

Anne Milgram:             Yeah, I agree. And we did a pretty quick job of it. But judge Howell’s opinion is 75 pages long. She wrote understanding that this was going to go up and she made a very strong record.

Preet Bharara:              Can I say one more thing before leaving altogether? The issue of the storming of the SCIF and people understand that a SCIF, Sensitive Compartment Information Facility, we had one in our office. There are large versions of a SCIF at the Department of Justice, all the intel agencies. It is a big deal.

Anne Milgram:             A big deal.

Preet Bharara:              You are not allowed to take electronic device in there. And the reason is, they’re espionage services of many countries around the world who break into phones can turn on the recording devices and compromises information. You just you can’t… The one thing you know-

Anne Milgram:             Or take other information.

Preet Bharara:              It’s the one thing you know that sacrosanct is you don’t take an electronic device in there.

Anne Milgram:             And nobody does it.

Preet Bharara:              And nobody does it. And if you do, and you do it intentionally. If I did that.

Anne Milgram:             You’d be charged with a crime.

Preet Bharara:              Potentially, but at a minimum, I would be disciplined. And if I did it brazenly, I probably would be fired. And that’s just if I brought one in intentionally.

Anne Milgram:             If it was an accident-

Preet Bharara:              If I tweeted from within the facility and or took a made a recording within the facility like some of these members did. Anybody in the intelligence community or in law enforcement would be fired that day.

Anne Milgram:             Agreed. Agreed. And I don’t think people can understand what a big deal it is. And you and I were both top-secret SCI cleared and we had a SCIF that we used on occasion, it is sacrosanct, and it is just one of those things that people do not do. Now, what’s also interesting is that even if you go to see the head of the National Security Division at DOJ, when you walk into NSD, the National Security Division, your devices are taken, you have to put them in a locker.

Anne Milgram:             When you go to see the director of the FBI, my devices are taken and put in a locker. There’s an incredible level of sensitivity around devices and how problematic they can be because they can be compromised. And so the idea number one that they didn’t know, I don’t buy for a second. It’s impossible. There’s a security officer who’s there. There’s a place where you put devices. I think it will come out what the security officer said.

Anne Milgram:             But I cannot believe that the security officer didn’t tell them that they had to put their devices down. I believe that that would have been a conversation that took place. And then as you said, there are members who are cleared, who are part of those committees who know they give their devices up all the time. It’s really-

Preet Bharara:              It’s a stunt.

Anne Milgram:             It’s a PR stunt.

Preet Bharara:              It’s a PR stunt, but a stupid PR stunt.

Anne Milgram:             That hurts national security.

Preet Bharara:              And hurts them. It’s like it’s the equivalent of making the argument the President can’t be investigated. There are arguments to make. I keep coming back to this point, and maybe we’re overly loyally about this. There are points to be made on behalf of the President with respect to what you can and cannot do. There are arguments to be made about whether the House is overreaching. There are arguments to be made about whether or not there should be a vote in the full House.

Anne Milgram:             Sure.

Preet Bharara:              Maybe they’re not the winning arguments, but there are arguments to be made. And they’re not making those arguments and rather they’re taking extreme positions engaging in PR stunts, and at the end of the day, I don’t think it helps them legally. I don’t think it helps them optically. I don’t think it helps them politically. Because people see the foolishness of it. And I really don’t get it.

Anne Milgram:             It looked to me like a complete PR stunt like an effort to try to draw attention. And I think as Americans, we have a pretty high appetite for that. But there’s a difference in my line when it crosses the line into compromising national security, and no one does it. Republicans don’t do it. Democrats don’t do it because you shouldn’t do it.

Anne Milgram:             We got a question about this as well. I think the question was from @catherine [inaudible 00:30:45]. What should and what will happen to the Republicans who storm the SCIF yesterday? It appears that it’s not going to be criminal because these are members of Congress exercising… I think we could argue they weren’t actually exercising their legislative function.

Preet Bharara:              There’s the Speech or Debate Clause, which protects a lot of this conduct. And what’s amazing to me, though, let’s pause this for a second, I think in an ordinary universe separate from the Speech or Debate Clause there could be internal-

Anne Milgram:             Which is part of the US Constitution, which lets congressmen-

Preet Bharara:              And by the way, just practice point, people always say Speech and Debate Speech and Debate Clause. It’s not Speech and Debate, it’s Speech or Debate. It’s in the Constitution.

Anne Milgram:             Thanks for that.

Preet Bharara:              It’s an or that’s the right conjunction.

Anne Milgram:             I just ran into someone who said she’s going to give out pocket constitutions for Halloween. So I’ll be sure to get one.

Preet Bharara:              I think you’re understanding of the Constitution is just fine, Anne.

Anne Milgram:             I’d like to have one in my pocket.

Preet Bharara:              But it could be discipline within the House.

Anne Milgram:             There should be discipline.

Preet Bharara:              Also, unlike the President whose security clearance you can’t take away, you can take House members off their committees, you can take them off all committees. And you can take away their security clearance.

Anne Milgram:             So I would do three things to address this. One I would do an ethics review of every single one of those members of Congress who entered period because I think this requires an investigation and an understanding of what happened and what they did.

Preet Bharara:              And deterrence.

Anne Milgram:             Yes, and two, I would significantly discipline those members of Congress and I agree that losing their security clearance is one option. Losing committee assignments is another option. But this is very serious. And number three, there’s a real question about and the CIA, the National Security Council. They’ve been deferential to Congress. There’s one sort of security officer whose outside the SCIF. And that person was there and clearly didn’t have the authority to stop people from entering.

Anne Milgram:             And I think they need to review their policies and processes of what’s the protocol. This is obviously an extraordinary thing that’s never happened before. You get one extraordinary incident, you don’t get two. And so they need to figure out how they handle this going forward. Because who’s to say that this won’t happen again tomorrow. And it felt like they were unprepared in some ways for this kind of extraordinary behavior because who would be prepared for it?

Preet Bharara:              I’m smiling.

Anne Milgram:             Yeah, I know.

Preet Bharara:              You’re probably wondering why I’m smiling.

Anne Milgram:             I am.

Preet Bharara:              Those are all excellent points. But may I make a non-substantive point?

Anne Milgram:             Yes.

Preet Bharara:              I ran into somebody who’s a big fan of the Insider and specifically a big fan of yours and you know and he said.

Anne Milgram:             I’m so scared.

Preet Bharara:              He said I love hearing Anne use the word extraordinary.

Anne Milgram:             I do use it a lot.

Preet Bharara:              You just said it three times.

Anne Milgram:             This was extraordinary.

Preet Bharara:              So I think-

Anne Milgram:             In my defense.

Preet Bharara:              Yes, but he just he enjoys your conclusion about matters as extraordinary. And he’s going to be very happy when he hears those points you just made. But the extraordinary thing about this also is that maybe it’s not criminal conduct, but it’s really, really bad conduct. But the United States, according to some reporting was aware.

Anne Milgram:             Knew about it.

Preet Bharara:              Knew about it.

Anne Milgram:             And sanctioned it.

Preet Bharara:              Endorsed it and sanctioned it, which is bad enough in and of itself. But then on top of that, literally this morning when I was leaving the House, I saw Donald Trump speaking outside the White House again, referring to Adam Schiff for that parody he did in front of the committee, where he exaggerated the President’s words and the call to Zelensky of Ukraine. And the President says blatantly, the President of the United States says, that’s a criminal act. What Adam Schiff did, with all appropriate caveats, that’s a criminal act and yet he sanctions, the storming of a SCIF with people’s devices.

Anne Milgram:             Yeah. It’s unbelievable. It really is.

Preet Bharara:              Boy, Bill Taylor.

Anne Milgram:             Yeah.

Preet Bharara:              So Bill Taylor finally testified. A superb public servant. 50 years in public services since we last spoke on Monday. And gave I think devastating testimony. We don’t even have all but we just have the opening statement. The opening statement was I think a piece of work in a positive way, and that at every juncture he was concerned about what was happening. At every juncture, he thought there was a quid pro quo, an inappropriate one unfolding, and he decided to come forward and talk about it. And I think even the reporting suggests that Republicans found what he had to say compelling.

Anne Milgram:             Yes, it’s very clear. He’s a credible witness and a longtime government servant, and someone who served politicians of both parties. He served in the State Department under Republican and Democratic administration.

Preet Bharara:              He was in retirement.

Anne Milgram:             Yes.

Preet Bharara:              He was brought back by who? By Michael Pompeo handpicked by Michael Pompeo. So he’s not like a deep state guy. He was asked to get the President who somehow finagled his way into this position. He’s a person who was picked by this administration saw bad things happening and has decided to talk about them.

Anne Milgram:             And it’s so clear, and the administration has said repeatedly, no quid pro quo, no quid pro quo. And you have Bill Taylor, who was living through it at the time and saying there is a quid pro quo. There is a conditioning of military aid almost $400 million in exchange for an investigation into the Biden’s and into the 2016 Election. And it was as clear as we’ve heard anyone say it and this was foreshadowed by the text messages that he’d sent to Ambassador Sondland.

Anne Milgram:             And so we knew that, at least in one moment, he’d taken this view, but what was made clear from his testimony is that this wasn’t just one moment in time for him. This was a continuum of he realized what was happening. And there’s a fascinating part at the beginning where he talks about Trump almost from the beginning tries to work around the regular channels of diplomacy and creates this irregular channel.

Anne Milgram:             What Taylor says is initially it’s aligned with the strategy on Ukraine with the official strategy on Ukraine, which is the right one. And all of a sudden with Giuliani and Sondland, it starts to diverge. And it goes essentially completely off the rails to the point where they’re holding Ukraine hostage in exchange for them doing these investigations. And so to me, he’s probably the most important witness in many ways.

Anne Milgram:             We should also talk about a little bit is that we call this a little bit last week, which is Sondland was trying to weave this sort of thread the eye of the needle to say, I didn’t mean to do anything wrong. I didn’t know what was happening. And I always refer to it as the admit what you can’t deny, and deny what you can admit. He is caught red-handed after Taylor’s testimony of having been involved in this political charade.

Anne Milgram:             And we knew this, but he knew exactly what was happening and that there was a quid pro quo. But Taylor is in many ways, the most credible, the most high-level person to sort of tell us what had been intimated from those text messages, but to basically say, yes, this is what I believed was happening.

Preet Bharara:              So people will wonder what’s the future of testimony in the House. There are various people who were scheduled to come in and some of them have been defying the commands of the White House not to come testify, not to cooperate. But when served with subpoenas are coming up to the Congress and testifying anyway. There’s one person who has sort of an interesting arguably clever strategy of having been caught in the middle of the White House and the House has decided to file a lawsuit in court basically saying, I need some guidance from the court to tell me what to do.

Preet Bharara:              What lawyers sometimes call a declaratory judgment in saying I don’t want to violate my obligations to the White House. I also don’t want to be in defiance of a duly authorized subpoena from the House of Representatives, what the hell should I do?

Anne Milgram:             And so there are a couple of reactions to this. And I’d be curious to know what you think. The first is that the White House has said very clearly in that terribly written letter, which we talked about a couple weeks ago, they’ve said with virtually no legal basis, nobody goes, we’re stopping anybody from testifying. You don’t need to testify. They never move to quash any of the subpoenas though, which is a very interesting thing. And the White House could have walked into court a long time ago after that letter was written and said we think we have a legal basis to walk in. The reason I think they haven’t walked in is that they actually don’t have a legal basis.

Preet Bharara:              Well, that’s never stopped them before.

Anne Milgram:             No, but particularly with these people who are members of… The farther you get from the President, the less strong executive privileges. And so for them to walk in and argue executive privilege on folks who’ve never talked to the President probably not even talking to Pompeo who’s talking to the President, it feels like a real stretch me and so they haven’t gone in. What happened here is that this guy who’s the former Deputy National Security Advisor, Charles Kupperman, and by the way, he’s also represented by the same lawyer who represents John Bolton.

Anne Milgram:             And I don’t think that this is a coincidence that he’s gone in Kupperman to say, “What do I do?” And Kupperman is no longer in government. So his situation in my view is a lot less complicated than many of the other officials that we’ve seen come forward. Many of those people are still in government, which means you’re defying the leader of the executive branch, the President, when you walk in. But they’re going in because they’re under a lawful subpoena from Congress. They’re doing what I believe you should do, which is to honor that subpoena.

Anne Milgram:             But here, Kupperman is no longer in government. Bolton is no longer in government. But they’re basically saying to a court, what should we do? The President and the White House has said that they may invoke executive privilege. And it is more important when it comes to someone like Bolton or someone like Kupperman. Important isn’t the right way to say it. It’s more plausible because they were actually probably having conversations with the President. Whereas the rest of these folks, I think highly, extraordinarily unlikely that they were.

Anne Milgram:             So here they go in and they say to the court, what should we do? Now, that is a common way that people deal with subpoenas when they don’t know whether or not they should honor it. And so we should credit that people do this across America all the time. I’ve issued subpoenas on behalf of the Grand Jury, and I’ve had people challenge those subpoenas and it goes to the judge. And so it’s not out of thin air.

Preet Bharara:              This is an example of a thing that’s arguable, and lawyers can make arguments and maybe it’s winning, maybe it’s not. But this is the ordinary way that decision making usually happens and the ordinary way that people put forth their arguments for their position, and or leave it up to the court, unlike some of the other things we’ve been talking about. That includes for example, while we’re talking about outrageous arguments. People remember that there are these two associates of Rudy Giuliani, who have been indicted by my old office SDNY for campaign finance violations. And a lawyer for those guys, I think took the position in court last week that they may exert executive privilege on behalf of these guys.

Anne Milgram:             I know.

Preet Bharara:              Because they have some association with Rudy who had some association with the President.

Anne Milgram:             It was a crazy argument. It was the Parnas’s lawyer-

Preet Bharara:              They’re not in the government.

Anne Milgram:             Yeah. So Parnas’s lawyer basically said, and they’re not dealing with official government business. And so Parnas’s lawyer said, Parnas is represented by Giuliani. Giuliani also represents the President. Therefore, this is covered by executive privilege.

Preet Bharara:              Aristotle’s a man.

Anne Milgram:             It’s just not the way it works. And so everyone in the courtroom during that hearing seemed surprised and the judge basically said to the government, and they’ve already got a taint team going for attorney-client privilege because Giuliani did essentially represent these guys.

Preet Bharara:              I prefer filter team.

Anne Milgram:             Filter team, not taint. But can we go back for a second on the Kupperman piece because one of the things I find interesting is they go to the court just at the end of last week. And so Kupperman is supposed to be there this week, he’s supposed to testify. And it’s not clear whether there’ll be a court ruling before then. And what the House Democratic committee’s leadership has said is you’ve got to come otherwise, we’re going to hold it against you. And we’re going to hold it against the President. So we’ll stay tuned and see what happens.

Anne Milgram:             One other thing just to say about what the House is doing, if we can quickly just high level, there are a lot of names. There are a lot of people who are going in, they even had a witness testify on Saturday. And one of the important things I think just for our listeners to understand is that as people come forward, and they testify, they’ll be asked, who else did you talk to, who else knew about this and they’ll give names.

Anne Milgram:             And so I think what the House is now methodically doing, which you and I have done in a million investigations is basically say, what other evidence is out there, who else might be a witness, and then they go out and they call those people in as witnesses. So they’re sort of locking down all the potential witnesses so that there’s no one out there who they haven’t talked to you or they haven’t asked about it. And so they’re trying to be very thorough.

Preet Bharara:              That’s another reason going back to the first point we were making as to why some of these things are happening in deposition format and not in open hearings in the House. Because then nobody could pass a bill. Like nothing else could be accomplished. They’re interviewing witness after witness after witness after witness, presumably, mostly by staff, and the members can go vote and they can do their other congressional responsibility.

Anne Milgram:             And they could go listen if they want or they can come in and out.

Preet Bharara:              Yeah, that’s how I did the investigation. I sat in a room. I think I mentioned this before, one time on a Sunday when the members are away. They’re in their home districts for seven or eight hours with a witness, and then you determine whether or not it’s worthwhile and not a waste of time to call that witness for a public hearing and you can have focused testimony. There’s no way that you could do a full investigation if you had to call every single potential witness some of whom might turn out to be duds. For all sides. They might not have relevant information, but you have to talk to them.

Preet Bharara:              Think about how many doors police officers knock on when they’re doing an investigation and maybe 15 doors they knock on they don’t get anything but they still have to do the exercise. You have to check the box. Some of this is a box-checking exercise also.

Anne Milgram:             Yes. And I don’t know that there’s ever a witness I’ve talked to in a case where I haven’t said, who else was there? Who else should I talk to you? Who else did you talk to you about this? You run down every potential lead. And that’s a lot of what we’re seeing happen. And by the way, some of it will be extraordinarily important, and some of it will not be, but they have to do it.

Preet Bharara:              So moving on to something else. There has been some reporting that the investigation into the investigators as people have been calling it the origins of the Russia counterintelligence investigation. Some people think that there was bad conduct at the outset. And Bill Barr the Attorney General United States has assigned that to a very well respected not known to be partisan US Attorney in Connecticut, John Durham, who’s another sense of investigation before you’ve heard the name before. And there has been reporting in the last week that that has, quote-unquote, transformed into a criminal investigation. What do you make of that?

Anne Milgram:             Well, can I give you some credit on this, which is that when we first talked about it, you had said, why would you have a US Attorney doing this if it’s not a criminal investigation? And you would basically said upfront I’m not sure it isn’t a criminal investigation. So I think that point is worth remembering, which is that you don’t bring in a US attorney to do an internal investigation.

Preet Bharara:              Or a review or some kind of administrative review, especially when you already have an Inspector General. I never understood what his role was, to begin with. And I don’t know that I necessarily credit and I’m sometimes right sometimes wrong. The reporting that says he’s been reviewing this for months and months, and all of a sudden, at the drop of a hat last week, for the first time, does he have Grand Jury power? I don’t know that I buy that.

Anne Milgram:             Do you know what’s possible? He may have impaneled a Grand Jury for the first time last week. What’s possible is that he may have put the first witness before a Grand Jury.

Preet Bharara:              And it got out.

Anne Milgram:             So reporters found out and now they’re talking about that’s what I would probably guess is the most likely scenario. This is a complicated thing. And I think, first of all, it’s really important for us to watch closely, I think Barr has shown himself to have, I think both an extraordinarily vast view of Presidential power, which I do not agree with, and second to have been, in my view, to have acted in a way that was partisan to the President with the release of the Mueller Report with his non-summary summary.

Anne Milgram:             And so I think there are a number of reasons to be skeptical of Bill Barr and to ask questions about why are we investigating the investigators? Now, the related piece of this is that it is not uncommon for the Inspector General who was tasked with looking at and really it appears that they’re focused largely on the Pfizer that was done on Carter Page, who was a member of the Trump team, who there had been previous Pfizer warrants on and the basis for a Pfizer warrant is basically to say, we think that this person may be compromised by a foreign government or that the foreign government has compromised them, and they’re now an asset of a foreign government.

Anne Milgram:             And so there’s a question as to what the basis for that was, and it’s been a lot of questions have been raised about the Steele dossier that was done and what part of the Pfizer application and what part of sort of the initiation of the investigation into the President comes from that and whether or not that was legitimate and fair? And so that’s been a question that’s been asked. And it’s a question it’s being investigated by the Inspector General.

Anne Milgram:             Now, you and I had heard rumors probably now over a month ago that that report was coming out. I do not understand why it hasn’t come out yet. And I think we should be a little bit troubled that it hasn’t come out and it’s taken quite a long time. And I think the normal course for something like this would be for the Inspector General to issue a report and then to make a criminal referral if they think that there’s a basis for a criminal referral. So Barr has undercut that process by putting Durham in upfront and having him do this.

Anne Milgram:             Now, all that being said, we don’t know what will come out of it. It’s not the basis to do a Grand Jury investigation. It’s not proof beyond a reasonable doubt. It’s a much lower threshold. And sometimes grand juries are impaneled to be able to get information that you otherwise couldn’t get, like phone records.

Preet Bharara:              Look, John Durham, the reason some people know his name is that he was assigned I believe to investigate whether or not they were should be officials prosecuted in the intelligence community for the destruction of those tapes showing enhanced interrogation and I think also for potentially the underlying conduct that was caught on those tapes. And that was a criminal investigation. And there was a Grand Jury presumably and he had absolutely authority to recommend charges and to bring charges and he did not.

Preet Bharara:              So just because there’s a criminal investigation that’s been opened, it doesn’t mean that something will flow from that. And just to repeat a point we’ve made before I think further to what you’re saying about Bill Barr, I don’t get why you appoint someone with a reputation for independence like John Durham so that people will have confidence it’s being done for a good reason and in good faith in a non partisan way, and then involve yourself right so heavily by flying to countries as has been reported.

Anne Milgram:             With him.

Preet Bharara:              With him. The whole point of John Durham is for there to be some arm’s length. He’s not a special prosecutor or a special counsel technically, but the whole point is to have some arm’s length from the political appointee, the Attorney General and he undermines that completely by getting so personally involved. And it looks like based on the other context, and the other things he’s done. It looks terrible.

Anne Milgram:             It looks terrible. And it also looks like the worry here and just to be really explicit about this. The worry here is that the President is directing the Attorney General to investigate the President’s political rivals and to do things that would be helpful for the President politically. And the President we’ve seen this is the exact conversation we’re having in Ukraine where he’s putting pressure on a foreign government to investigate his political rival.

Anne Milgram:             And so there’s a real basis to have a fear about what is happening here and what Barr’s role it is. And so the fact that Barr has kept himself involved, leads credence to this concern. But again, I think we need to let it play out and see what comes next. But it is there are legitimate questions that I think people should be asking. And I also think that there has to be I don’t think that Barr will necessarily do this. But there has to be a level of transparency about this.

Anne Milgram:             And obviously not while something is in the Grand Jury, but there has to be ultimately a level of transparency about it. Because I do think that the public will not accept something that looks politically motivated even if it’s a legitimate line of criminal inquiry.

Preet Bharara:              Well, some people will.

Anne Milgram:             Yeah, some people will, but I think there’s a legitimacy argument that it’s really important for these institutions to have the overall trust of the American public and that they’re coming close to a line here of where people are questioning the integrity of the department and they have to be very, very careful with how they do that.

Preet Bharara:              Should we conclude with the Rudy Giuliani update?

Anne Milgram:             Oh, yeah. Rudy. Yeah.

Preet Bharara:              So there are some people former colleagues of mine who have suggested there’s already sufficient evidence to bring a criminal charges against him. I wouldn’t go that far. There are all sorts of reports that not just SDNY, my former office, and the former officer of Rudy himself are looking at his financial transactions and his involvement with these guys who’ve been already charged with campaign finance violations.

Preet Bharara:              And there’s some reporting. I don’t know if again if I credited, and I know I say that a lot. But I think it’s important to say like, I don’t know what’s true necessarily in reports that the Criminal Division of Main Justice in Washington is also taking a look at various things. Do you think Rudy’s in a lot of jeopardy?

Anne Milgram:             Yes. So I think a couple things. I think we’re right to be a little bit skeptical some of the reporting because the criminal investigations are supposed to be secret. And so information that leaks out it’s hard to know who’s leaking it and how credible it is. And so I think when we talk about this stuff, it’s worth just reminding folks that some of the information is public, some is not and from what’s not, it’s hard to know how much we should credit it. Here’s what I found extraordinary about. I said it again.

Preet Bharara:              You’re allowed to say it.

Anne Milgram:             Here’s what I found really important about last week when-

Preet Bharara:              That very important, but not as nearly-

Anne Milgram:             And by the way, in the federal courthouse at the arraignment of Fruman, and Parnas, the Assistant United States attorney gave a lot of information about the depth of the investigation. I did not realize how much they had done that there are over a dozen search warrants that have been done. There are over 50 bank accounts I think she said that they have access information on.

Anne Milgram:             That means that they’re following the money and that there’s a pretty complex investigation going into what was happening. And I would presume that that includes Ukraine and here. And so I think Giuliani should be worried number one because of what appears to be the depth of the looking into the financial commitments back and forth. And we know Giuliani was involved with these guys. So they have the financial records at this point, and they will find what if any involvement Giuliani had.

Anne Milgram:             Second, I think he should be concerned because it’s very clear that there are a number of things that took place particularly at the behest of the Ukrainians that shouldn’t have taken place. And so whether or not he gets charged I’m with you. I’m always a little uncomfortable saying you could charge someone today or charge someone tomorrow. But he should be worried and he should have a lawyer. I find it very strange that he’s apparently out looking for a lawyer now and doesn’t have one. He fired the first one.

Preet Bharara:              One of the things that they’re looking at is a potential violation of FARA, the Foreign Agents Registration Act. We brought cases into that statute, but they’re hard cases to prove for various reasons. And a couple of the biggest most high profile FARA cases brought by the Justice Department recently had ended not in success, including against Greg Craig, the former White House Counsel under Obama. That trial ended in acquittal. So we’ll see but it’s not a good position to be in.

Preet Bharara:              It’s also not a good position to be in if you’re Rudy Giuliani and an article gets written by a reporter describing a great length the butt dial. Not just one. I believe there were two butt dials in which the reporter gets a voicemail.

Anne Milgram:             Three minutes.

Preet Bharara:              Three minutes because that’s the full amount that you can leave a voicemail on this reporters phone, where Giuliani is clearly talking about issues relating to the Biden’s and his own financial situation, etc. But can I make a comment on what we were talking about before?

Anne Milgram:             Yes. Yes.

Preet Bharara:              You believed that I was going to raise this. A comment on the term butt dial.

Anne Milgram:             Yes, you object.

Preet Bharara:              Well, because I’ve never butt-dialed because I don’t keep my phone in my back pocket. So I think the preferred-

Anne Milgram:             I know there are a lot of follow questions I have for you.

Preet Bharara:              Look, just like I prefer filter team.

Anne Milgram:             Yes.

Preet Bharara:              I prefer pocket dial. Why do I have to keep reading the phrase butt and Giuliani in the same sentence-

Anne Milgram:             Now, that is a good question.

Preet Bharara:              … over and over and over again? And this is a small semantic point. Why do we still call it dial? My kids have no idea. They have never seen a phone being dialed.

Anne Milgram:             They don’t know how to dial.

Preet Bharara:              It’s like a button push.

Anne Milgram:             What do you think we should call it?

Preet Bharara:              I don’t know. I don’t have an answer for everything. I just think it’s an odd term. I don’t need to see the word butt all the time.

Anne Milgram:             Have you ever missed dialed?

Preet Bharara:              Yes, I’ve missed and I’ve pocket dialed. I have.

Anne Milgram:             I have too.

Preet Bharara:              So look, for the grace of Rudy go I these kinds of things happen, but they seem to happen more to Rudy than to other folks.

Anne Milgram:             No, I agree. And look, I think it’s sort of not the most important part of the Rudy Giuliani story, but it is interesting. He’s trash-talking the Biden’s. He’s out looking for money. It’s not clear does he need the money for his defense or for something else, but it certainly shows and again, it can happen to all of us, but it certainly shows the lack of care.

Preet Bharara:              So there are these two that have been reported by that, I think it was an NBC reporter.

Anne Milgram:             Yeah, it was, yeah.

Preet Bharara:              But they’re not on social media. I saw journalist after journalists sharing their own Rudy Giuliani butt dial story.

Anne Milgram:             Maybe we should ask our-

Preet Bharara:              It happens all the time.

Anne Milgram:             Do you think any of our listeners have Rudy Giuliani butt dial stories or other good butt dial stories? I would accept.

Preet Bharara:              Yeah, I think you should request people’s interesting-

Anne Milgram:             Yes, please. If anyone has a good story.

Preet Bharara:              … pocket dial stories.

Anne Milgram:             Send it to us. I cannot remember who it was. But I had to change whoever was listed under as the first person in my phone because-

Preet Bharara:              Alphabetically?

Anne Milgram:             Yes alphabetically because it had happened so many times. So I think I put them under their last name and it wasn’t someone I knew well. So I had to look through the A’s later and see if or the people who’s names-

Preet Bharara:              Did they ever complain?

Anne Milgram:             People send you a text message and say, hey, did you try me?

Preet Bharara:              One reporter wrote about Giuliani like they once got a voice memo from him. He managed to press the button that started recording him in a voice memo, and then also put it into text and sent it to the reporter.

Anne Milgram:             Do you think Giuliani is going to do a public service announcement for young people in the world to be careful of your butt dial?

Preet Bharara:              No, I don’t think he is.

Anne Milgram:             A PSA?

Preet Bharara:              No.

Anne Milgram:             No.

Preet Bharara:              Oh, you know what, before we go further to what we talked about last week, you didn’t like the word or the term shadow diplomacy.

Anne Milgram:             Yeah. I don’t like it.

Preet Bharara:              Which is what people have been accusing Rudy Giuliani these other people have engaging in because it’s not diplomacy and it’s not really shadow. I don’t know what it is.

Anne Milgram:             No, it’s [crossttalk 00:54:37].

Preet Bharara:              And some people have suggested terms. I think you put out a request for better terms. And so what have you come up with?

Anne Milgram:             I sort of like the one the side hustle that somebody texted us and I think there were some other good options too, but a lot of them had the word diplomacy, which again, I sort of I’m just worried we’re legitimizing what is an actually real diplomacy. So I’m going to vote side hustle. What about you?

Preet Bharara:              Butt diplomacy.

Anne Milgram:             Please send us your questions and your best butt dial stories and we’ll be sure to answer the questions. I know I want to [inaudible 00:55:09].

Preet Bharara:              All right. Until next week. See you, folks.

Anne Milgram:             Take care.

Speaker 6:                    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 Aaron Dalton. The audio producer is David Tatasciore, 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.


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