• Show Notes
  • Transcript

In this episode of the CAFE Insider podcast, Preet and Joyce discuss the latest developments regarding reproductive rights, including the Department of Justice’s emergency request to block Texas’s restrictive abortion law, and the forthcoming Supreme Court case where the state of Mississippi has asked the Court to overturn Roe v. Wade. They also break down the subpoenas issued by the House select committee investigating the January 6th insurrection at the Capitol. 

We hope you’re finding CAFE Insider informative. Email us at letters@cafe.com with your suggestions and questions for Preet and Joyce. 

This podcast is brought to you by CAFE Studios and Vox Media Podcast Network. 

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

REFERENCES & SUPPLEMENTAL MATERIALS

Up Against The Mob, CAFE

“Regulating Crypto (with SEC Chair Gary Gensler),” Stay Tuned with Preet, CAFE, 9/30/21

“Fighting for Immigrants (with Joyce Vance & Lee Gelernt),” CAFE Insider, CAFE, 9/28/21

ABORTION

Texas S.B. 8 – Texas Heartbeat Act

Whole Woman’s Health v. Judge Austin Reeve Jackson, U.S. Supreme Court, order & dissents, 9/1/21

Shelby County v. Holder, U.S. Supreme Court, opinion, 2013

U.S. v. Texas, U.S. District Court Western District of Texas, motion to dismiss, 9/29/21

Oscar Stilley v. Alan Braid, U.S District Court Western District of Texas, complaint, 9/20/21

Felipe Gomez v. Alan Braid, U.S District Court Western District of Texas, complaint, 9/20/21

U.S. v. Texas, U.S. District Court Western District of Texas, emergency motion for a temporary restraining order or preliminary injunction, 9/14/21

U.S. v. Texas, U.S. District Court Western District of Texas, complaint, 9/9/21

Dobbs v. Jackson Women’s Health Organization, U.S. Supreme Court, petition for writ of certiorari, 6/15/20

“Preliminary Injunction,” Cornell Legal Information Institute

“Texas’ abortion law is back in court,” NPR, 10/1/21

“Court to weigh in on Mississippi abortion ban intended to challenge Roe v. Wade,” SCOTUSblog, 5/17/21

JANUARY 6TH

“Note From Elie: Contempt of Congress Prosecutions are Necessary but Fraught,” CAFE, 10/1/21

Fifth Amendment to the U.S. Constitution

2 U.S. Code §192 – Refusal of witness to testify or produce papers

Executive Grant of Clemency, Stephen Bannon, President Trump, 1/20/21

“Select Committee Subpoenas Organizers of Rallies and Events Preceding January 6th Insurrection,” House Select Committee press release, 9/29/21

“Select Committee Subpoenas Individuals Tied to the Former President in the Days Surrounding January 6th,” House Select Committee press release, 9/23/21

“House GOP aide targeted in latest subpoenas from Jan. 6 select committee,” Politico, 9/30/21

Preet Bharara:

From CAFE and the Vox Media Podcast Network welcome to CAFE Insider. I’m Preet Bharara.

Joyce Vance:

And I’m Joyce Vance.

Preet Bharara:

How are you Joyce?

Joyce Vance:

I’m doing well Preet. How about you? Do you have jet lag?

Preet Bharara:

So I missed you last week. I missed a great interview that you did on important issue.

Joyce Vance:

Thank you, Lee was amazing.

Preet Bharara:

I had jet lag coming back. Yeah. I find it hard to go to bed at a reasonable hour. I had that problem before it’s exacerbated by the trip. It was nice to be out there.

Joyce Vance:

I can always fly from here out to the West Coast. I grew up in Los Angeles, so I go home to see family. I can make the flight out no problem. It’s the flight coming back east that knocks me out and throws my time clock off.

Preet Bharara:

Yeah, the same happened with me. I mean, I like going from east to west, you gain time. I end up getting up earlier. I was on time for everything. I managed to have breakfast a couple of days with friends and colleagues. So I like that. Then you come back and it’s terrible. So we need to talk fast.

Joyce Vance:

Really?

Preet Bharara:

So, you know, we record home. I recorded home in the basement of my house. And as I’ve mentioned before, we started recording our kitchen sink, no longer works there’s a leak and it hasn’t worked for three days. And between 8:00 and 12:00 Tuesday morning is when the plumbers can come. Let’s try to get through some of this legal material before the plumbers show up.

Joyce Vance:

If not, maybe we can have the plumbers join us as special guests.

Preet Bharara:

Maybe you can talk about the Watergate plumbers. So on that note, let’s return to a topic we’ve talked about the last number of weeks, and that’s the issue of reproductive rights and abortion. And you and I have spent a good amount of time talking about this Texas law, SB8, the Supreme court’s reaction to SB8, basically letting it proceed. Then we talked a couple of weeks ago about the fact that there are at least three plaintiffs who’ve taken advantage of the sort of mercenary aspect of that law to sue a doctor who admitted himself publicly, that he had performed an abortion. We’ll see what’s happening with those things, but there’s been another development in connection with that case because DOJ has gotten involved and has sued the state with respect to that law, SB8.

Joyce Vance:

There was a hearing on Friday in that lawsuit. And if you feel like you’re having deja vu, it’s because this is a very similar sort of proceeding to the one that ended up in the Supreme court that led to the Supreme court refusing to enjoin SB8 and letting it go into effect in the lawsuit that was brought by Texas abortion providers and advocates. This is round two in the DOJ lawsuit. They’re in front of the district judge in Texas [inaudible] and my former colleague Robert Pittman.

Joyce Vance:

And at this point, DOJ is asking judge Pittman to enjoin the law. So the same ask that was earlier made and ultimately refused by the Supreme court now being made by DOJ on a slightly basis because DOJ comes into court with different equities and obligations. And in this hearing on Friday, Preet I think the most interesting thing that happened is that judge Pittman really pushed the state.

Joyce Vance:

And he said, “If the state is so confident in the constitutionality of the limitations on a woman’s access to abortion, then why did it go to such great lengths to create this very unusual private enforcement mechanism?” In other words, Texas, why can’t you just enforce this law SB8 like you would enforce any other law. And I particularly loved Preet the response that the lawyer for the state, an attorney named Will Thompson gave to the judge. He said, “I don’t think the state went to particularly unusual lengths.” So now judge Pittman will have to decide whether or not to enjoin the law.

Preet Bharara:

Yeah, let me what the, as you point out as what the hearing kind of crystallized is the craziness of this regime and how sort of they tied themselves up in knots in a pretzel or whatever metaphor you prefer to prevent there from being released. I mean, the whole argument here was in part on the one side, the DOJ side, asserting that what Texas has done is to create an unprecedented scheme of in their words, vigilante justice, designed to scare abortion providers.

Preet Bharara:

And then the Texas lawyers say among other things, well, that’s hyperbole, you’re going too far, it wasn’t a big deal. It’s not that unusual, but of course it is. And also to say, and this goes to the cleverness of the scheme. You don’t enjoin the law. You don’t stop a law, you enjoin or stop people from doing things. And here you’re trying to stop the wrong folks because the state is not enforcing this thing. And the question, it’s almost a philosophical question, given the cleverness of the scheme, who is it that you’re trying to enjoin?

Preet Bharara:

You can’t do the action that you’re doing here. You can’t seek the relief that you’re seeking here. They say to DOJ, because you don’t have the proper target for your injunction. So too clever by half again, or is there some possibility that the cleverness of it will prevail?

Joyce Vance:

It seems to me that the comment that you made the first time we discussed this case is the comment that has to be the north star in this conversation. The whole reason that we have a legal system is so people can enforce their rights. And Texas I prefer to think of this as evil genius. I don’t want to give them points for being clever. I think what they’re trying to do here is to come up with a way to avoid the legal system and that seems to me to be more evil than genius, but ultimately what that pushes me to conclude. And I suspect this is where judge Pittman is headed based on some of the questions he reportedly asked is to conclude that what Texas has done is it has converted private individuals into state actors.

Joyce Vance:

And it should be possible. And DOJ makes this argument to enjoin the Texas courts from letting these legal proceedings against the clinics proceed. You could enjoin in a lot of different places. You could force the courts to decline the cases. You could enjoin the courts from letting the cases proceed. You could enjoin judges from pursuing individual cases. So I think that there are some options here.

Joyce Vance:

I love that the lawyer from Texas told the judge in this regard, this is not some kind of vigilante scheme. It uses the normal lawful process of justice in Texas. And that’s nuts, right? Because this is literally a vigilante justice system and something that a court properly should enjoin using the mechanisms that it has available to it.

Preet Bharara:

I wonder if you think the following argument made by Texas lawyers for Texas, if the argument is evil genius or clever, or some other thing. One of the things you have to prove or make a substantial showing of in order to get a preliminary injunction is irreparable harm. And that is essentially a finding that remember that the analogy we use with respect to my house who owns the house? Well, if you let and there que the plumbers. I’m sorry the plumbers are here.

Joyce Vance:

Such perfect timing.

Preet Bharara:

It never fails, right? The cable guy and the plumbers, right, you get a four hour window and they will show up at the most inconvenient moment in the window. I think that’s actually in the constitution. So irreparable harm is showing that in the analogy of my house, if you tear down the house and you ultimately say, “Well, it was Preet’s house, and it shouldn’t have been torn down is a little too late, and there’s been a reparable harm.”

Preet Bharara:

So here DOJ is saying among other things that, that law irreparably injures the United States by restricting the operations and responsibilities of the federal government. It doesn’t allow people at the bureau of prisons and other places as we’ve discussed before from performing abortion services, as the law permits and requires them to in proper circumstances. So if you let us do it, that’s a reparable harm. Texas in response says, “Well, I don’t know what you’re talking about that’s a silly argument, because even if you win, it’s just a preliminary injunction and we’ll still fight in the courts about whether or not there’ll be ultimately a permanent injunction.”

Preet Bharara:

So the chilling effect on abortion providers that exists now, because SB8 is allowed to continue unfettered will remain the case because there will not be finality and closure on SB8, because it will only be a preliminary injunction, not a permanent injunction now. So if I haven’t put everyone to sleep with this is legal mumbo jumbo, maybe you can explain whether that’s clever or not.

Joyce Vance:

What that argument does is I think it assumes that the Supreme court is going to reverse Roe versus Wade. Roe versus Wade won’t be good law after the Supreme court decides Dobbs the Mississippi case. And there’s also another piece of this argument that I find to be really troubling. It has to do with a provision in the Texas law. The Texas law permits lawsuits to be brought retroactively. In other words, if the court were to grant an injunction and keep SB8 from going into place and women were to proceed with obtaining reproductive services.

Joyce Vance:

And then later on, the injunction was dissolved and SB8 again became the law in Texas, maybe because the Supreme court has reversed or gutted row Texas makes the argument that there would be a four year period in which private vigilante citizens could bring lawsuits in Texas to enforce the law against women. And so the argument it’s essentially making is that there is no irreparable injury to women’s rights and to DOJ’s rights and obligations. If the law remains in effect, because ultimately there’s this lengthy four year period and women’s rights will ultimately be denied and the lawsuits will take place. Anyhow, in other words, to your point, the argument proves far too much about Texas’s intent here.

Preet Bharara:

Yeah. I think that that’s right. And it’s such a weird thing for us to be discussing a central issue in our law for decades and decades. Settled precedent from Roe v. Wade up to Planned Parenthood v. Casey and beyond. And all of this discussion and argument is about legal strategy and who has standing and who is the human who can be enjoined or not enjoined. It’s really a matter of the tail wagging the dog. And that’s where sometimes, as I said, at the outset of this conversation, a few weeks ago, people get upset and angry about the law and they say it doesn’t make a lot of sense.

Preet Bharara:

And you know, the buildings are upside down. And I just wondered what you think of this argument. The Texas folks say, “Look, this issue of who can sue and who can’t sue them, whether they’re standing or not standing is not really a big problem because they say the constitutionality of the Heartbeat Act that’s SB8 can be reviewed in the same way that virtually all of state tort law is.” State court defendants raise constitutional defenses before neutral judges sworn to follow the US constitution and if necessary appeal to the US Supreme court. And they say, “Nobody has a right to be in federal court. And federal court has different rules relating to standing and who can be enjoined versus state court.” Is there any fairness to that argument?

Joyce Vance:

Federal law says that there can’t be a death penalty for any crimes other than murder. And Alabama is a state where there’s lot of support for using the death penalty. So maybe Alabama should go ahead and pass a statute that says that there can be a death penalty for crimes like robbery and assault and rape, but it won’t be execution by the state it’ll be execution by private vigilantes. So you can go in and execute people. And if you want to challenge that law DOJ, you can go and challenge it in Alabama state court. I think that’s my answer to that argument.

Preet Bharara:

Wow, if I could do orally a fire emoji, I would.

Joyce Vance:

Look, I think the problem here, and you’ve said this before, is that we are trying to engage in a responsible way and look at the arguments and think about whether they make sense. But ultimately at some point you just have to call something BS when it is and say that this is an effort to abuse the legal system to deny people rights of 50 years standing. The Supreme court is going to do whatever it’s going to do this term, but making a mockery of the legal system like Texas has done is something that needs to be challenged and called out.

Preet Bharara:

I agree with that. Now, you mentioned the Mississippi case. Maybe we spend a minute addressing the issue of whether or not this Texas back and forth even matters when you have a Mississippi case where that state has as openly and notoriously and directly called for the overruling of Roe. And the Supreme court has agreed to hear the case in just a few weeks, isn’t that the case that’s going to settle everything on the issue of Roe survival and this Texas stuff is just a sideshow or is the Texas case still matter?

Joyce Vance:

There are a lot of people who hope that the Supreme court will outright reverse Roe in dogs and Mississippi has certainly postured that case. So that’s one possible outcome because the issue is whether states can impose pre viability restrictions on obtaining abortion. The Mississippi law permits the state to do that from 15 weeks on. It’s a ban on abortions after the 15th week. And so it sets that issue up. The cynic in me and this is more in your wheelhouse than mine, but the cynic in may says it’s awfully dangerous to reverse Roe going into an election year. Typical wisdom is that the party that’s out of the white house makes gains in the midterm election, mobilizing American women who lose abortion rights outright could have political consequences not certainly, but it could.

Preet Bharara:

Wait Joyce, the Supreme court is not political.

Joyce Vance:

No, I know that they’re not, but theoretically, if they were, they might consider some of these things and there might be some folks on the court, or even some of the advocates in the case who would encourage an approach that would be more approximate to what the court did the voting rights in Shelby county. Where they didn’t outright say that the Voting Rights Act was unconstitutional. They just guided it. It would be possible to issue a more narrow holding in dogs that would essentially give states far more of an ability to restrict abortion, but would deny people who might want to use it for political purposes the headline that Roe verses Wade had been overturned. Too cynical?

Preet Bharara:

No, I don’t think so. I mean, I go back to a point you and I have made before. That’s very odd to me. Although when you think about it, it’s not so odd. There’s a subset of folks in this country who I disagree with really, really, really strongly, but there’s a subset of folks in this country who have a genuine belief that life begins at conception or soon thereafter and abortion in most circumstances is tantamount to murder and they have that genuine conviction.

Preet Bharara:

And I don’t have that belief and you don’t have that belief. And I think science and law and philosophy are more on the side of reasonable abortion provision. But if you do have that belief, you would think, I think some members of the Supreme court have that belief. If you do have that, you would think you would be celebrating in the streets some of the decisions that have occurred along the way with respect to the Texas statute SB8, and instead the people who have that belief or the leaders of people who have that belief seem to be going out of their way to tamp it down and not celebrate and not say it’s a real blow for their in favor of their cause. Why? Because the politics of it.

Joyce Vance:

The dog is catching the car. And it’s a little bit worried about what it’s going to do with it now.

Preet Bharara:

Yeah. I mean, you would think there would be a different kind of chorus of celebration and happiness on the part of people who want Roe overturned. And yet it’s very quiet and that quiet is very telling.

Joyce Vance:

Well, I’ll just say that I hope that if they do reverse Roe, all of those states will immediately bring forth into their legislature’s laws designed to provide for prenatal care and for spansion of Medicaid and for early childhood education. And for child care for women, for moms who are working, because if you’re really, pro-life not just pro birth, we would need those laws to go along with that, but I’m not holding my breath.

Preet Bharara:

So we’ll keep an eye on everything going on with Texas and Mississippi and reproductive rights in the United States, such as they are and we’ll be. There’ve been other developments, Joyce with respect to the January 6th panel in the house of representatives led by Congressman Bennie Thompson. There have been subpoenas issued. We love to talk about subpoenas. There were in recent days, subpoenas issued to four Trump advisors, Mr. Meadows, Mr. Bannon, Mr. Kash Patel and Mr. Scavino, we can get to that in a moment, but more recently, there have been subpoenas issued for deposition testimony and documents from 11 people.

Preet Bharara:

Most of whom are listed on paperwork for the January 6th rally. Most of these people are not household names. You’ve never heard of many of them. Now you have those four significant and well-known Trump advisors in the first phase. But in the second phase, you have these people who are sort of on the ground and a position to have had communications between and among themselves, but also between and among folks at the white house. One person is the most well-known of the 11 Katrina Pierson, a former Trump campaign official inside as being someone who had direct communication with Donald Trump about the rallies.

Preet Bharara:

And if one of the ultimate goals of the panel’s inquiry is to figure out the state of mind and the intent of Donald Trump, was he really intending to just engage in normal political protected speech, or was he trying to interfere unlawfully with the proper traditional accounting of votes? In the Congress testimony like this can make the difference. And it also strikes me that they’re going about it, the right sort of measured way that they’re taking deposition testimony behind closed doors. They’re trying to get all the documents together.

Preet Bharara:

They’re not only trying as an initial matter to get high profile blockbuster type witnesses, but you know what, in lots of investigations of their bread and butter, shoe-leather work of an inquiry to find out what lots and lots of people at lower levels have to say. So they can build up a narrative of what happened from the ground up. They’re not immediately parading people before a committee with television cameras and everything else. They’re doing basic investigation, interviewing testimony, taking document review, and then later we’ll see what they have put together and what dots they’ve connected for public hearings. Does that sound right to you?

Joyce Vance:

I think that’s right. This is what happens when you’ve got professional prosecutors working with congressional representatives, many of whom have prosecutorial chops themselves and they focus on the right questions because it seems to me that one of the biggest questions that has to be answered here is why Trump wanted to move the mob from the ellipse to the Capitol. I mean, what were they supposed to achieve that they hadn’t already done? He’d had this stirring rally in front of the ellipse with all of his speakers, what was left to do?

Joyce Vance:

And the problem that we have, I think, as a society is we all assume that we know the answer to that question. It’s important to let the committee develop the evidence. And that’s why this process looks so very functional to me. There’s an interesting question buried inside of these subpoenas to the 11, this second batch of subpoenas, there obviously a lot of good reasons for issuing these subpoenas. Many of these people are listed as having important roles connected with the rally on the ellipse, they were folks involved in getting the permit in organizing VIP coverage, all those sort of things.

Joyce Vance:

But there’s also been a reference in the reporting that some of these women in this group called Women for America First we’re developing concerns about Ali Alexander. Alexander is the founder of the Stop the Steal movement. And he was beginning to talk about organizing a movement towards the Capitol. And some of these women, the reporting suggests developed concerns. They feared his online promotion. They thought he was stoking something dangerous. He was using chance of victory or death. And the question that could legitimately be asked of these folks pursuant to their subpoenas is did they share those concerns with the white house? And what was the white house’s response? I think that’s a rich area for inquiry.

Preet Bharara:

No, I think it’s incredibly important. I mean, some of these people will have testimony that suggests they were complicit and they wanted to engage in bad conduct and reverse the vote and others it looks from the subpoenaed paperwork. We’re in a position to have raised red flags and alarm bells that there are people like Alexandra and others who wanted to go far beyond what the permit allowed in terms of peaceful protest. The most important thing to me and I’ve been saying this since just after January 6th and the insurrection took place is what was in Donald Trump’s mind?

Preet Bharara:

His defense politically, optically potentially at some point in the future, legally is he was just engaging an ordinary speech. This is going to be relevant to the lawsuits that have been brought against him, potential criminal prosecution. Although I don’t hold out hope for that. Was he just doing what is protected for a president exercising his first amendment, right. And giving a pep talk to his supporters or was he actually causing them, inciting them to do something that was unlawful to interfere with the workings of Congress and to interfere with the unfolding tally of votes in connection with the momentous election.

Preet Bharara:

And you can’t really understand the answer to that question unless you know what it is he was saying and thinking and doing. Whether he was proceeding, knowing that there was violence taking place. And we have incidental evidence of this because we have some of his public comments when he said, “I love you.” But he and his allies also point to the fact that’s almost a footnote in his talk from January 6th. He says something about demonstrate peacefully. But then every other thing he said, including all the stuff leading up to that moment was in the service of not just talk, but actually reversing the election.

Preet Bharara:

We know that he exhorted Mike Pence to do the thing that even Dan Quayle said, you couldn’t do, which is not certify the vote. For example this a, I find interesting with respect to the first group of folks, including Mark Meadows, former representative and former chief of staff to president Trump that the select committee, the January 6th select committee is not only seeking his testimony in documents relating to things that happened on January 6th and the rally and the violent attack on the Capitol. But also the series of phone calls he’s reported to have made to people at the top of the justice department to get them to engage in inappropriate action in Georgia and elsewhere.

Preet Bharara:

So all the stuff is tied together. It’s not just about what happened in January 6th, the insurrection it’s all tied up with and I’m glad the committee believes it to be tied up with all these other things they did with the department of justice and the Georgia election officials and other places to try to undo the election.

Joyce Vance:

What I’m looking for with these witnesses, if I’m a prosecutor is a smoking gun, because as you say, Trump’s state of mind is really important. And so when you’ve got a witness like Katrina Pierson, who is Trump’s national spokesman during the 2016 team campaign, then she went to the C4 after the election and on her subpoena request, it suggests that she had in-person conversations with Trump in advance of January 6th. So here’s what I’m looking for. There’s that self-serving statement that you identify in the speech on the ellipse about be peaceful.

Joyce Vance:

I’m looking for was there a conversation where someone said, “We need to make sure that we insert this line into the speech so we can refer back to it.” There’s probably not something as bold and as blatant as that, but Pierson may have had conversations where Trump literally said what was on his mind, literally talked about the importance of preventing Congress from certifying Biden’s election, victory. And that’s what prosecutors and Congress is looking for here.

Preet Bharara:

So the question that everyone is waiting for us to get to is do these folks have to comply with the subpoenas and what basis do they have to not comply? So we should take the two groups separately for a moment. So you have Meadows, Bannon, Kash Patel, Scavino three of those four were in governmental positions at the time of the conduct that’s being inquired about. And the communications took place.

Preet Bharara:

One of them, Steve Bannon, I don’t know what basis at all, Steve Bannon, who was a private citizen at the time. And by the way, was under indictment in the Southern district of New York later pardoned inexcusably to my mind by the former president. I don’t what argument of executive privilege or anything else Steve Bannon can make. Now the other three-

Joyce Vance:

It’s more like a criminal conspiracy than it is like executive privilege. If he and rump had a conversation and he wants to say, he doesn’t have to testify.

Preet Bharara:

I agree with that. But I’m just saying what, what straight faced argument are lawyers for these people going to make? And we can today and in future weeks talk about executive privilege and how that works and what the back and forth is and what the negotiation is over that. But certainly Meadow’s, Kash, Scavino and Bannon to a lesser degree will not cooperate, will not want to come in, will throw up the roadblock of executive privilege, even if it does not sit well within understood parameters of executive privilege because of the reasons you cite and others.

Preet Bharara:

But then you had these other 11 folks who were on the permit paperwork one or more of whom worked in the govern like Maggie Mulvaney, who I think was the niece of Mick Mulvaney. And you’ll get into a weird back and forth and litigation over whether or not the house can subpoena. One of its own people, someone who works in the house, whether a member, a staff member, but these other private citizens who were engaging in preparation for the rally before we get to how the subpoenas can be enforced. What’s the basis on which some of these folks are going to say, “Nah, rather not come in.”

Joyce Vance:

So this will, if they challenge the subpoenas, be like so much of what we saw during the Trump administration where there’s some sort of spacious privilege or immunity asserted. And the purpose is delay, ultimately the legal theory flawed, but they know that they can get into civil courts and delay their obligation to testify by doing that one would hope and we can talk about this as we get into enforcement, one would hope that the courts would be savvy to that by now.

Preet Bharara:

Yeah, I guess that’s right.

Joyce Vance:

I mean, do you see anything legitimate that they can assert? I just don’t.

Preet Bharara:

I mean, I don’t know that everyone is going to assert and by the way, with respect to some of these folks, including the Trump advisors, there’s a political cause to be paid for doing this. But it’s legally protective to assert the fifth, fifth amendment, right against self-incrimination.

Joyce Vance:

Preet, only the guilty, only the guilty take the fifth amendment. Trump himself has said that.

Preet Bharara:

I know you’re recording Trump. You don’t actually believe that. He has said that with respect to other folks who are in position to incriminate him, that if you invoke the fifth amendment, you’re doing that because you must be guilty. He didn’t spend a lot of time studying any law, but look, some of these folks might want to come in because they don’t want this hanging over their heads. And some of them are in the position to give testimony about red flags. And some of them maybe are appalled by what happened in January 6th. I don’t know enough about these 11 people will learn more about them as time goes by and what their lawyers assert. But some of them may come in. I think the people closer to Trump will never want to come in.

Joyce Vance:

Who knows though, maybe a Steve Bannon who really seems intent on burning the whole house down might want to come in and answer some questions and say, what are you going to do about it now? He seems to be his-

Preet Bharara:

He wants … moment.

Joyce Vance:

I mean, he seems to be in a very unusual, aggressive and openly talking about it posture.

Preet Bharara:

Deranged.

Joyce Vance:

So I wonder if he might not be the one. Yeah, deranged is good. I wouldn’t rule out the possibility, although I don’t think it’s a high percentage chance that he might show up with whatever his crazy agenda is.

Preet Bharara:

So now we’re getting to the big question, right? That I get asked you get asked that everyone gets asked and it’s because we say we’re a nation of laws, not men. And we say, no one is above the law. And we say, Congress has power. And there’s a judiciary that has power and it properly should subpoena cannot just be defied. There has to be some consequence for that. And as an introductory point, I will say, “You’re right to feel irritation and frustration about how sometimes that doesn’t play out.”

Preet Bharara:

There is a big difference between subpoenas that you and I issued or authorized when we were US attorneys, where you have a lot of power and force and authority in the courts. And you have a cadre of agents, whether it’s police officers or FBI or DEA agents who can help enforce these things. And it’s a long tradition. Every day in federal courts, around the country and in state courts around the country with respect to DA’s subpoenas there’s litigation over the scope of subpoenas and whether or not they can be enforced.

Preet Bharara:

And contempt is something that happens, not uncommonly. And people go to prison for defying criminal subpoenas, grand jury subpoenas. These subpoenas are not grand jury subpoenas, and they’re a bit frankly weaker and they have less of a track record. And there’s a lot more negotiation about them because especially when there’s a fight between co equal branches of government, you have one branch of government, the Congress try and get information from another branch of government, the executive, it’s not as easy as when you and I issued subpoenas for bank records in connection with the money laundering investigation.

Preet Bharara:

And so I commend to folks’ attention. You and I were talking about this Elie Honig, our colleague wrote a great piece for cafe where he basically lays out in some detail and entertainingly the possibilities of how you can enforce the subpoena. So the possible ways to enforce, and then Joyce, let me know what you think about them. One is Congress itself using its inherent power to try to enforce the subpoenas. Second, they could go to the courts, the federal courts to enforce the subpoenas. Third, they can make a criminal referral to the department of justice headed by Merrick Garland, and they can bring a criminal case for the purpose of enforcing the subpoenas. Any of those going to fly?

Joyce Vance:

Well, Elie is genius. Like he always is. This is one of my favorite reasons that I’m a CAFE subscriber and have been since long before we did the podcast together because I like to read the notes. And Ellie here, I think is just accurate and dead on the money about the enforcement options for these subpoenas. He is very quick to dismiss this notion that Congress can use its own inherent enforcement authority. That’s something that people talked a lot about during the two Trump impeachments. Well, the forget what the argument was, the Marshall of the house can just go out and arrest people.

Preet Bharara:

The Sergeant at arms, the Sergeant at arms.

Joyce Vance:

The Sergeant at arms, thank you can go out-

Preet Bharara:

And there’s no jail.

Joyce Vance:

… arrest people and put them in this non-existent jail in the capital. The point that Elie makes and it’s correct is that Congress has left this power dormant for more than a hundred years. It may have had force at some point. It no longer does an effort to use this to resurrect this power would be tied up in endless litigation and nobody benefits from delay here, right? The whole goal is to elicit evidence while it’s fresh and relevant.

Preet Bharara:

Can we just pause on that for a moment? Because we’ve said that a couple times and to spell out why delay is a problem with the Mueller investigation, my view always was that Bob Mueller keeps his head down and some people are not happy with what the outcome was, but he keeps his head down. He did what he needed to do. He didn’t have to end his role when he did. I think he wanted to sort of do the invest investigation, get out and not come anywhere close to the election you want to be done.

Preet Bharara:

And then, you know, leave the work behind for other people. Some of which got scuttled by bill Barr and others. And here there’s no law or statute that says it needs to conclude by some particular moment. There’s not even a statute of limitations here because they’re just doing an inquiry that doesn’t have criminal force behind it. It’s the pragmatic clock of the next election and how it will look for the committee to be inquiring into this stuff as we approach the midterm. So do you agree that there’s a political clock?

Joyce Vance:

There is, but I’m not sure it’s necessarily bad for people who want to learn the truth about January 6th, because remember Republicans walked away from a deal that would’ve included a bipartisan committee whose work would’ve had to have concluded by the end of this calendar year. They bypassed that deal. And if this committee’s work goes close to the election season because Republicans delay and don’t comply with subpoenas and won’t turn over documents, then I think the committee has a good argument for continuing its work without regard to the next election, because the truth matters. But as you say, there is a political cost for doing that and Republicans will cry witch hunt again.

Preet Bharara:

Right. It’s okay. So I interrupted you. So the first method of enforcement is the Sergeant at arms Congress, does it itself-

Joyce Vance:

Not happening.

Preet Bharara:

Not happening. So the next is the courts. What’s wrong with that?

Joyce Vance:

So civil enforcement is a great mechanism, but we all remember that it too failed during impeachment. For one thing, it took Congress a long time to get into court with those subpoenas. I don’t think that we’ll see that happen again. I think that if the committee realizes it has to go the civil enforcement route, it will be quick to get into court and it will hope that courts will rule expeditiously, but expeditiously in a legal system where you have to deal with important issues of executive privilege and other types of immunity doesn’t mean in a couple of days or in a week. And even if district courts rule quickly, there is appeal to the court of appeals and perhaps ultimately to the Supreme court. So this is a strategy that means we’re looking, it answers that could take a long time.

Preet Bharara:

Many, many, many months.

Joyce Vance:

I mean, maybe even more than months because Don McGahn who gets subpoenaed, we don’t have a resolution of that issue and testimony by McGahn until after the Trump administration has ended. I mean, that’s the potential sort of delay we’re looking at. So civil enforcement is a possibility, but it raises all of the privilege issues for litigation and it could take too long.

Preet Bharara:

Do you agree that they have to give that a shot? You can’t just let it go. If inherent authority and the Sergeant at arms taking cuffs to the intransigent witness is not a possibility notwithstanding the flaws and delays, you got to get into court, you got to start-

Joyce Vance:

And you ask to do it fast.

Preet Bharara:

… that process. I think we’re going to see that. Whether or not it results in anything tangible on a quick timeframe. That’s a separate question. And then finally, it’s angering to folks. If you have a legitimate subpoena and it relates to an inquiry that’s really important sort of stability of democracy in America or instability of it, they should come and testify. Just like any of the people that we issue subpoena to in our prior jobs had to testify otherwise there’s a consequence. And here there happens to be a law that criminalizes defiance of a congressional subpoena. How serious is that crime choice? So it was a carry like a life imprisonment 20 years. What is it?

Joyce Vance:

So it’s a misdemeanor.

Preet Bharara:

Oh, it’s a misdemeanor.

Joyce Vance:

But it’s a very unusual misdemeanor. Most misdemeanors don’t involve any imposition of jail time. This misdemeanor has a mandatory minimum of 30 days. N I’m sure Steve Bannon can do 30 days.

Preet Bharara:

Standing on his head.

Joyce Vance:

Standing on his head. Yeah, absolutely. But nonetheless, there are some teeth to this criminal contempt. The big question is whether DOJ would bring criminal contempt cases to enforce these subpoenas.

Preet Bharara:

Well, they haven’t in the past.

Joyce Vance:

They have not, they have never dealt with the situation involving an insurrection and the possible interference with the smooth transfer of political power in this country. But that of course has that difference has animated all of DOJ’s process with these cases. And DOJ still seems to show a real lack of appetite to engage in a process that could be deemed political. I think that that’s regrettable. And here’s my point of view. When I issued subpoenas to people who really didn’t want to come and testify in front of my grand jury, often, they were worried that people who were involved in the matter might exact some form of retribution against them, they were worried about their safety or the safety of their family.

Joyce Vance:

They had to come and testify. As you said, we always had the possibility that the United States Marshall would go out and put bracelets on them and bring them into testify involuntary if they wouldn’t show up pursuant to that subpoena. I don’t understand why we can expect just average citizens to be more compliant with the justice system. Then we expect of these people who had taken oaths to uphold the constitution. These first four, they had all been political appoints at some point they had all taken that oath. Why they don’t have to live up to it is both beyond me. And ultimately will have a really strong, negative impact on the rule of law in this country if they’re able to avoid testifying.

Preet Bharara:

I want to restate a principle that doesn’t necessarily apply in this case, although I think it does. And it’s a mode of argument to that I find silly and not quite up to the moments that we’ve been experiencing. And it’s something like this critics of some action by the government, whether it’s seeking criminal contempt in response to defiance of subpoenas or some vaccination mandate or some masking policy will say, that’s an extraordinary thing for the government to do.

Preet Bharara:

It’s unprecedented, it’s really draconian or crazy because it hasn’t been done in a hundred years or ever. And that may or may not be true. But the counter argument to that is that in almost every instance that you and I talk about it, if it’s important enough for us to talk about it, those are actions that are being taken in response to equally, if not more serious, unprecedented dramatic events, namely a once in a century pandemic or a once in a country’s lifetime insurrection at the capital.

Preet Bharara:

So when Merrick Garland and others in policy making positions in the executive branch or in Congress, think about the necessity of taking extraordinary steps, they have to do that in the context of what extraordinary thing they’re addressing. Those two things are not separated from each other. They’re not distinct from each other.

Joyce Vance:

The question is, what is your oath to the constitution require you to do in unprecedented times? [inaudible] lived in unprecedented times and did unprecedented things. We face similar challenges in this moment. And I think it doesn’t require that people be shrinking violence who are overly obsessed with concerns about appearing to be apolitical. It requires people to make difficult decisions. It doesn’t require you to be a go along to get along or to hope that people will like you or like your decisions. You simply have to do the right thing.

Preet Bharara:

So Joyce, this is now a so let me do a very artful segue from the January 6th committee to best dog breeds. We ask folks, because you’re considering getting another dog and our fine listeners who care a lot about you and about your family’s happiness and about dogs generally sent in a bunch of suggestions with also by the way, very cute pictures. Have you seen this? You have a view. Do have you been persuaded by any of these listener suggestions?

Joyce Vance:

I have. And first let me say, I loved everybody who took the time to respond and to tweet and especially the people who included pictures of their dogs. I killed several hours that I should have been spending preparing lectures for my students, looking at pictures of dogs and had to work into the wee hours. And it was worth every minute of it. I wouldn’t take it back. So here’s the state of play in the Vance household. We have two dogs. We had an older dog, a wonderful stray dog who is named Trouble. She grew to deserve that name, but she-

Preet Bharara:

Good trouble.

Joyce Vance:

She’s the sweetest, oh my God, good trouble. The sweetest best dog we’ve ever had. And her time with us came to an end. We have our German Shepherd, Bella and our Boxer, Fig my husband is on the war path to get a third dog. And that’s unusual for Bob. He grew up in a household where his mom actually was a dog breeder. He grew up with Great Dane and with Salukis and he was used to having a lot of dogs around. And Bob has a practice when he wants a new puppy of getting me a dog for a birthday or for Christmas.

Preet Bharara:

Do you have a birthday coming up?

Joyce Vance:

Our anniversary is in four days.

Preet Bharara:

Okay.

Joyce Vance:

So what are the odds, right? So here’s some of the dogs that our readers suggested and they’re great suggestions. First of Border Collie, my mother-in-law got me a Border Collie to celebrate the birth of our oldest child. The Border Collie was named Dandy and she was not just the smartest dog in the house. She was actually the smartest person in the house. She used to hurt everybody and run circles around us.

Preet Bharara:

I was just say that suggestion comes from Greg. I want to give credit to the folks.

Joyce Vance:

It does come from Greg and Greg makes the point that this is the best farm dog. And that’s true because our Dandy lived out most of her life on a farm where she was very happy herding sheep. Not a dog for people who live in the city like us, but thank you, Greg. I love Border Collie. Ann Tony has suggested a Great Pyrenees puppy love that breed. They’re huge and we’re big dog people.

Joyce Vance:

And then Susie suggested a Labrador Retriever. Susie, that may be the dog that Bob comes home with. Our first dog was a Lab pup named Tory, a black Lab who we loved. So we may be headed back that direction. I love these suggestions so much. And when there’s a new dog in the Vance, family will definitely share that news and photos.

Preet Bharara:

I can’t wait. So we’re monitoring all this, including what dog will next become a part of Vance household. We’ll be back next Tuesday. So send your questions. And also for the dog breed suggestions to letters@cafe.com.

Joyce Vance:

We look forward to answering them.

Preet Bharara:

That’s it for this week, CAFE Insider is presented by CAFE Studios and the Vox Media Podcast Network. Your hosts are Preet Bharara and Joyce Vance. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore and the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Wiener, Jake Kaplan, Chris Boylan, and Sean Walsh. Our music is by Andrew Dost thank you for being a part of the CAFE Insider community.