• Show Notes
  • Transcript

In this episode of CAFE Insider, “Covid-in-Chief,” Preet and Anne discuss the latest in President Trump’s battle against COVID-19, the impact of the outbreak on the confirmation process for Supreme Court nominee Amy Coney Barrett, the Trump Administration’s designation of New York, Portland, and Seattle as “anarchist jurisdictions,” and more.

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

This podcast is produced by CAFE Studios. 

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

REFERENCES & SUPPLEMENTAL MATERIALS

Video of Stay Tuned Live Cocktail Hour, featuring Preet Bharara, Anne Milgram, Elie Honig, Lisa Monaco, John Carlin, and Ken Wainstein, CAFE.com, 10/1/20

TRUMP COVID-19

U.S. Constitution Article II, Sec. 1, Clause 6

25th Amendment to the U.S. Constitution

3 U.S. Code §19. Vacancy in offices of both President and Vice President; officers eligible to act (Presidential Succession Act of 1947)

President Trump tweet, 10/1/20

President Trump tweet, 10/5/20

Preet Bharara tweet, 10/5/20

Ivanka Trump tweet, 10/3/20

VIDEO: Dr. Conley press conference about Trump’s treatment, MSNBC, 10/3/20

“Here’s who has tested positive and negative for Covid-19 in Trump’s circle,” CNN, 10/5/20

“Trump’s Campaign Saw an Opportunity. He Undermined It,” NYT, 10/5/20

“‘Do they think … rules for everybody else do not apply to them?’: Chris Wallace slams Trump’s family for refusing masks at debate,” WaPo, 10/5/20

“Plexiglass to separate Harris and Pence at VP debate,” Politico, 10/5/20

“Ron Johnson says he would wear a “moon suit” to vote on Barrett confirmation,” AXIOS, 10/5/20

“Polls: Biden’s lead over Trump extends to double digits,” AXIOS, 10/4/20

“GOP seeks to call off Senate work, but not Barrett hearings,” AP, 10/3/20

“Attorney General Barr chooses not to quarantine despite possible exposure to Covid-19,” CNN, 10/3/20

“Trump Says He Will Quarantine After Aide Falls Ill With Virus,” Bloomberg, 10/1/20

“Donald Trump Is a Clear and Present Danger to the 2020 Election,” Anne Milgram, NYT, 12/5/19 

TRUMP v. BIDEN

Stay Tuned with Preet, “The Debate from Hell (with Errol Louis),” CAFE.com, 10/1/20

Commission on Presidential Debates statement about format changes to debates, 9/30/20

“Debates commission plans to cut off mics if Trump or Biden break rules,” CBS News, 10/1/20

“Chris Wallace Calls Debate ‘a Terrible Missed Opportunity,’” NYT, 9/30/20

VIDEO: Chris Wallace reaction to the presidential debate, Fox News, 10/1/20

MICHAEL FLYNN

“Oral Argument Summary: U.S. v. Flynn,” Lawfare, 9/29/20

“ANARCHIST JURISDICTIONS”

U.S. Constitution Article I, Section 7, Clause 1

10th Amendment to the U.S. Constitution

Department Of Justice Identifies New York City, Portland And Seattle As Jurisdictions Permitting Violence And Destruction Of Property, DOJ statement, 9/21/20

Memorandum on Reviewing Funding to State and Local Government Recipients That Are Permitting Anarchy, Violence, and Destruction in American Cities, Presidential Memoranda, 9/2/20

“Trump says murders are up in Democrat-run cities. They’re up in Republican-run cities, too,” Vox, 9/29/20

BILL MURRAY v. DOOBIE BROTHERS

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

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

“The New York Times’s Lawyer Responds to Donald Trump,” NYT, 10/13/16

Preet Bharara:

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

Anne Milgram:

I’m Anne Milgram.

Preet Bharara:

Anne, how are you?

Anne Milgram:

Hey, Preet, how are you doing?

Preet Bharara:

Are you still hung over from the great CAFE Stay Tuned Happy Hour last week?

Anne Milgram:

It was great fun. We had a lot of listeners who joined us, I think over 2,000 people.

Preet Bharara:

I think at one point, there were 2,100. At one point, I said we have 2.1 thousand people, because that’s how it’s displayed. Somebody wrote in the chat, “2.1 thousand is not a thing.”

Anne Milgram:

That’s probably true.

Preet Bharara:

We have all the people correct us. We could correct it a lot.

Anne Milgram:

Well, it’s a good thing.

Preet Bharara:

We have very smart listeners and viewers.

Anne Milgram:

Yes, you have to keep us honest. I didn’t even know that Zoom went up to 2,000 people. You learn something every day.

Preet Bharara:

It’s pretty high. I think you just have to pay more, though, to get a larger [crosstalk 00:00:54].

Anne Milgram:

It was great to have all the hosts and everybody come together. It’s amazing, Preet. It was last Thursday, and it feels like it was a million years ago, because so much has happened.

Preet Bharara:

Well, last Thursday, when we recorded, taped, about 6:30, we had no idea yet that the president was positive for COVID.

Anne Milgram:

That’s right. Actually, probably around the time we were taping, he’s probably just leaving. He’d gone to a fundraiser in Bedminster, New Jersey, a big roller, heavy roller, high roller.

Preet Bharara:

Heavy roller? What’s a heavy roller?

Anne Milgram:

Sometimes, the phrases in my head get-

Preet Bharara:

That guy is playing baccarat. He must be a heavy roller.

Anne Milgram:

A high roller.

Preet Bharara:

We should warn people, this can be one of those days, we started recording 20 minutes [crosstalk 00:01:46].

Anne Milgram:

There’s already been a lot of giggling.

Preet Bharara:

We’ve been giggling too much. It’s a very serious time, but, you know what? You need to laugh.

Anne Milgram:

Sometimes you have to laugh.

Preet Bharara:

I need to laugh sometimes with my friend, Anne. That’s the way it is. For folks who missed that event, if you’re not in the 2.1 thousand, we will be posting an actual video of the Happy Hour on cafe.com and on the CAFE YouTube channel. Look out for that. I guess we should talk about what’s happened. There have been a few things. I guess we get to the debates. Although, we’ve been saying this for many weeks over the last four years during the term of Donald Trump, but it really was the most eventful six days, I think, in memory.

Preet Bharara:

The prior Saturday, Amy Coney Barrett’s nomination was announced. On Sunday, the New York Times reports about Trump not paying taxes in most years. Then, there’s the debate, which was God-awful. We’ll talk about that in a minute. Then, we find out that, not only Donald Trump, but also, Melania, and also Kellyanne Conway, and also Hope Hicks.

Anne Milgram:

More than 30.

Preet Bharara:

And also, a whole bunch of other folks tested positive for COVID. It’s been a very eventful week. I guess we could talk about these things one by one. What do you make of the whole Trump three, four-day saga testing positive, going to Walter Reed and then the bizarre sort of return home on Marine One ahead of the schedule that a lot of, at least, commentators who are doctors have said should occur.

Anne Milgram:

Yeah. Remember when we were in impeachment and we were sort of spending a lot of time talking about the president and what he was doing with foreign governments. I’d written an op-ed for the New York Times saying that the president was a clear and present danger. This past week, I kept just thinking what I think I missed and what I think a lot of us missed is that, at that time, we hadn’t seen the coronavirus. He, really, is a clear and present danger, not just to others, but also, to himself.

Anne Milgram:

I, like you, probably, have just been fascinated to understand what the timeline is that the president became infected, knew that he was positive. It’s really clear that when he got on the plane to go to Bedminster, New Jersey from the White House on Thursday, that Hope Hicks had already tested positive and that, by all accounts, he’d shown some symptoms. He was tired. He was sleeping on the plane at some point.

Anne Milgram:

By the way, it’s not clear because the White House and the administration hasn’t told us when the president first tested positive. It’s really troubling that, then, later that night, they report, the president tweets out that he and Melania have COVID-19. I’m stuck on just the callousness and the disregard that the president has had for the science and the way in which it appears to me very likely, and even forget if the president knew. We know he knew that he was exposed to Hope Hicks and that she had tested positive. That’s enough for any normal person in the world to stay home. That’s the guidance that the CDC gives people.

Preet Bharara:

You and I have been doing that, right?

Anne Milgram:

Yes.

Preet Bharara:

I set to have dinner with someone last week. He woke up, wasn’t feeling very well, and said, “We should cancel dinner in abundance of caution.” That’s just dinner between two people outside. Donald Trump is going pressing the flesh with donors.

Anne Milgram:

In a closed door roundtable with 18 donors, each of whom paid $250,000 to be in that small room with him and to, basically, be close to him. It’s like, “Yeah, I get that you’re trying to fundraise $4.5 million, but the health and safety of all Americans comes first.” It’s just even this callous disregard, Preet. We saw this at Walter Reed. It’s just callous disregard for his staff, for the people who protect him, for everyone. I have not been able to move beyond the fact.

Anne Milgram:

It’s not news that the president has downplayed the virus. It’s not news that they’ve taken a cavalier attitude towards social distancing and masks. It was publicly reported that they’ve mocked people in the White House who wear masks and who are taking it more seriously. They’ve created this sort of culture around it that is just so contrary to the facts and the science and endangers people’s lives. I’m still stuck on that piece. Obviously, we should talk about-

Preet Bharara:

Well, let’s stay stuck on that piece for a second. I don’t get it. I don’t get what the big deal about a mask is. I don’t understand how that’s a sign of weakness. I’m not a scientist. Are you a scientist, Anne?

Anne Milgram:

I am not a scientist. I just listen to them.

Preet Bharara:

But, we listen to scientists. I get the outset for various reasons, and I’m not thrilled about it, either. There was a mistaken message given about masks, including from the surgeon general. You learn over time, and it seems to me, even though I’m not a scientist, common sense, that masks help. I think there’s some scientific evidence, maybe, considerable scientific evidence that masks help. Even if there’s some, don’t you err on the side of caution? I don’t get why it is such a big deal to wear a mask. It is not the most oppressive thing in this beautiful world.

Anne Milgram:

No, it’s a mild inconvenience. Think about all the mild inconveniences that we sort of go through for health and safety in our lives. Putting on a seatbelt takes an extra 30 seconds. It saves lives. We just do it. In fact, the federal government, Congress required that we do it. There’s countless examples where things are, maybe, a little bit harder than they would be without it. Our six-year-old wears a mask in school. He’s excellent at it.

Preet Bharara:

That’s incredible. What kind of mask is it? [crosstalk 00:07:20].

Anne Milgram:

Well, we have a bunch of different ones. Yeah, we have a bunch of ones. We have some fun ones, too. He really like the shark one. Yeah.

Preet Bharara:

Oh, good. Wait, does it have big teeth?

Anne Milgram:

It has a shark face on it. It’s a little bit too big for him, but it was pretty cool.

Preet Bharara:

I saw my dad turned 81 as I tweeted over the weekend.

Anne Milgram:

Happy birthday to your dad.

Preet Bharara:

Thank you. (singing). My dad said, actually, next time we’re down there, we should pay you a visit. We weren’t close to where you are [crosstalk 00:07:50].

Anne Milgram:

You should, yes.

Preet Bharara:

My mom and dad both showed up at the restaurant wearing “Vote” masks.

Anne Milgram:

I saw that in the picture. That’s amazing.

Preet Bharara:

Should we talk about transparency for a second?

Anne Milgram:

Yeah, I want to talk about transparency.

Preet Bharara:

To begin, when we find out that Donald Trump and Melania Trump have COVID. That’s 1:00 in the morning, early Friday morning. Some people have speculated the only reason we know about that is because a couple of things that a Bloomberg reporter had disclosed that, I think, Hope Hicks had tested positive. That was known. Also, because Trump started experiencing symptoms. At some point, that was going to become known and too difficult to hide. There was some reasonable speculation that Donald Trump had contracted COVID but wasn’t symptomatic. Would he ever have disclosed it to the public? That maybe he was just going to try to weather it. Do you think that would have happened?

Anne Milgram:

I can’t even believe that we are having this conversate. It’s really stunning for me, no matter what political party you’re from, that we are having a conversation about somebody knowingly, that we have a real question in our minds as to whether the president of the United States could have knowingly had coronavirus and gone out. He’s campaigning. He’s with donors. He’s making public announcements. He hosted. Let’s also note, he didn’t need to have this huge ceremony for Amy Coney Barrett. He also didn’t need to do so much of it indoors. He did a lot of it indoors before they went outdoors as well.

Anne Milgram:

The fact that you and I are even having a serious conversation about whether he would have gone on and just campaign, and, by the way, I think it’s totally plausible for people to argue that he would have. It’s almost too awful for me to believe that any human being would do that, let alone the president of the United States. Just the fact that we’re asking the question, Preet, doesn’t that trouble you that you and I have to debate this or think about it?

Preet Bharara:

Yeah. I’ll give you another example of the transparency issue. This has been the topic of a lot of discussion. On Saturday, when the president is admitted to Walter Reed, the doctors come out, new household names that occur all the time. The president’s personal physician, Dr. Conley, doesn’t answer a whole host of questions.

Anne Milgram:

Anything.

Preet Bharara:

It is obvious that he’s being evasive, because he gets asked, “Did the president get supplemental oxygen?”

Dr. Conley:

Right now, he is not on oxygen.

Interviewer:

I know you keep saying, “right now.”

Dr. Conley:

[crosstalk 00:10:15].

Interviewer:

Should we read into the fact that he hadn’t been previously?

Dr. Conley:

Yesterday and today, he was not on oxygen.

Interviewer:

So, he has not been on it during his COVID treatment?

Dr. Conley:

He is not on oxygen right now.

Interviewer:

[inaudible 00:10:25].

Preet Bharara:

There’s also a question about how low his oxygen level had gone, which doesn’t make a lot of sense to me. Then, yesterday, I’m recording this on Tuesday, October 6th, on October 5th, he was a bit more forthcoming. He’s disclosing very specific information about the president’s heart rate, about the president’s blood pressure, about the president’s temperature, all of which would be covered by HIPAA.

Preet Bharara:

People keep invoking HIPAA. Then, he’s asked, “Does the president have pneumonia?” He doesn’t answer. He invokes HIPAA. Now, some people, I think, are saying cavalierly, well, HIPAA doesn’t apply to the president. I think HIPAA applies to everyone.

Anne Milgram:

HIPAA applies to everyone.

Preet Bharara:

It applies to everyone.

Anne Milgram:

But, you can waive HIPAA.

Preet Bharara:

Correct. Obviously, what the president has done is he waived it with respect to some things.

Anne Milgram:

He’s waived it partially. Exactly.

Preet Bharara:

Waive it with respect to the good stuff.

Anne Milgram:

Hide it with respect to the bad.

Preet Bharara:

But, they don’t talk about the bad stuff. If he get asked about my lung scan, don’t disclose what my lung scan shows. I don’t know how the waiver works as a legal matter. On some things, you can’t do that in the law. You can’t voluntarily use as a sword some information that would otherwise be covered by attorney-client privilege, and then, shield some of that information, because that’s sort of unfair. You can’t use a privilege both as a sword and a shield. I don’t think that that works that way.

Anne Milgram:

Well, you’re raising an interesting question. No, I don’t know. I’ve done a lot of work around HIPAA and consent, because you absolutely can consent to have your medical records shared. One thing that’s interesting is that, usually, in writing, usually, the waivers would be written and most doctors or hospitals would insist that those waivers be in writing. It’s an interesting question.

Anne Milgram:

As you’re saying this, it’s making me wonder, any of the presidents doctor should have required before they gave that information out a HIPAA waiver. It would be bizarre for that HIPAA waiver to say, “Well, you can talk about the president is doing well. You can give these facts. But, you cannot disclose any of the negative facts.” That’s just generally not the way you would write that kind of a waiver. Usually, it would be waived.

Preet Bharara:

Maybe, that’s what Trump was signing in those photographs.

Anne Milgram:

Was signing on that blank piece of paper.

Preet Bharara:

It’s not a blank piece of paper. It’s a partial HIPAA waiver. Is that possible?

Anne Milgram:

It is a great point, Preet. It’s also bizarre. Look, the president has done this countless times. We should be really clear on this. In terms of releasing his taxes, “I can’t release them. I’m under audit.” There’s nothing in the rules that say you can’t release them. This is the way the president operates. He’ll give out the parts of his medical record that he wants to share, but not the other parts.

Anne Milgram:

Now, one thing that has come out, and I think we should also be really clear about it, is that the president has received the gold standard of treatment. He has received treatments, one that indicate that he had or is experiencing a serious case of COVID-19. Also, things that other Americans could not get.

Preet Bharara:

Bam-bam-bam.

Anne Milgram:

There’s a level of hypocrisy.

Preet Bharara:

Come on. Don’t fear COVID.

Anne Milgram:

Right. Then, he turns around and says, “Don’t fear COVID.” A disease that’s killed. It’s one of the mass casualty events in the United States of America. It just killed over 200,000 Americans. It is that sort of dismissive, callous, cavalier attitude. Even, walking into the debate. We both read the president walked into the debate and he did not show up in time to be tested by the Cleveland Clinic, which is one of the most elite medical institutions in our country. Then, Chris Wallace says it’s on the honor system. Well, honor systems only work when people have honor.

Preet Bharara:

Yes. That’s well said. Can we stop right there? That’s the quote of the day. No, it’s true.

Anne Milgram:

It’s like, why does anybody think the president has honor? Also, it’s sort of like this moment. Even not to sound the debate, because I think we should come to the debate later. There’s even a moment where Chris Wallace said, “Well, no one could have expected that this was going to be the president’s strategy.” Really? How is that possible? If you watch the debates from 2016, where the president interrupted Hillary Clinton more than 50 times, it’s like people almost don’t want to believe that the movie they’re watching is as terrible as it actually is.

Preet Bharara:

I think that’s absolutely correct. Hey, should we talk about how this may or may not affect the Amy Coney Barrett confirmation?

Anne Milgram:

Yeah. I also want to talk about whether Vice President Biden should have stopped, like how you feel about him stopping. Mostly, because I’m just curious to know your views that Vice president Biden stopped running the negative ads he was running against the president. Both campaigns, obviously, run negative ads. Vice president Biden, he stopped them and basically told his staff nothing negative against the president while he is recovering. I get it. That’s the normal high road that you and I would expect people of both political parties to take.

Preet Bharara:

Those are smart politics. Those are smart politics.

Anne Milgram:

Smart politics, I think so, too. What about now?

Preet Bharara:

Well, I tweeted yesterday after Donald Trump did his scene from avida on the balcony of the White House that it’s time to put those ads back up. I think a lot of people agreed with me. (singing).

Anne Milgram:

I have to admit, I didn’t place the “Don’t cry for me, Argentina” moment at first. I literally just turned to my husband and said, “This feels like a scene from a third-world dictatorship.” It made me queasy. It’s like there was something really upsetting about the president.

Anne Milgram:

We should also talk about the fact that the president took off his mask, put his mask in his pocket, he still has COVID, we don’t know whether or not he could be spreading it to other people. It goes against every single guideline. The medical advice has been that you should quarantine for 14 days after you’ve been exposed. The president, obviously, is tested positive and needs to be in isolation.

Anne Milgram:

That scene from the balcony, it encapsulates the fact that he is living in his alternate universe. It’s also not a truthful one and it’s not an honest one. I think the lack of transparency, the flouting of science and medical rules, his willingness to endanger the lives of other Americans, to me, it’s like I cannot even believe.

Preet Bharara:

I’ll give you another example. Another example is, we’ll get to continuity of government in a moment, but Mike Pence was in all those places. There were two super-spreader events, it seems like. One was debate prep, when a number of people may have contracted COVID because you’re in a small room, enclosed for a period of hours at a time. Then, there was the Amy Coney Barrett nomination ceremony, which had both an outdoor component and an indoor component. Mike Pence, so far, has tested negative. That was also true of Kayleigh McEnany.

Anne Milgram:

She is now tested positive.

Preet Bharara:

She has, and two of her aides. Mike Pence continues to make plans to go out and campaign. He was making those plans while the president was still in the hospital. You would think that a person of Donald Trump’s age, maybe he’s come out of it, I still don’t know what to believe, because I think people are not telling the full truth, but the mortality rate of a 74-year-old getting COVID and having symptoms, it clearly had to been more serious than they want to let on, given the treatments that he got, which may have been unprecedented for anyone in the world, according to some doctors who we’ve been talking, that it’s an above 0% chance that there would be a bad result for Donald Trump. For continuity of government and for national security purposes, you would think the vice president would take every precaution in case he has to ascend to the presidency. Not doing that. I don’t get that, either.

Anne Milgram:

I agree with that. You’re right. You make a good point that, obviously, the president is not completely recovered. The vice president, you would think, would be especially cautious right now. You’re right that he’s been pretty much full steam ahead on his public events and campaigning. The other person that I was really troubled by was Bill Barr. I feel like we could actually say those lines at almost any of our CAFE Insider episodes, then just fill in the blanks after it. He was at the Amy Coney Barrett event. There are pictures of him at the event talking very closely to a number of people, including Kellyanne Conway, who later tested positive.

Anne Milgram:

He said right after it, he tested negative, as we know, the next day, if you test negative, it doesn’t mean that you can show symptoms up to 14 days. That’s why, generally, it’s between five and 11 days that people show symptoms. The reason it’s 14 is that there are some people who don’t show symptoms or don’t contract the disease until then. That’s why the guidance says you isolate, you quarantine. He basically issued a statement, saying, “I choose not to quarantine,” as though it’s like this optional decision that you get to make about other people’s health.

Anne Milgram:

Forget your own health for a minute. He’s also not young and should take it very seriously, I think. It’s just, again, this callous disregard for human life. It borders on the criminal to me, Preet. It’s this willful… I don’t know that any of it is criminal.

Preet Bharara:

Is it arrogance? Is it just arrogance?

Anne Milgram:

It is arrogance. It’s beyond arrogance, in my mind, when other people’s lives are at risk. If you didn’t know, it’s one thing. It still would be awful. Obviously, you would expect people to feel terribly if they made somebody else sick and they didn’t know they had the disease. If you know that 30-plus people around you have gotten it, that you were exposed to people who are positive, and then, you say, “I choose not to quarantine.”

Anne Milgram:

He, now, of course, has changed that and has since said that he will quarantine. That kind of initial reaction, it’s just so troubling to me as somebody who thinks the only way you get out of a pandemic is to have trust in one another and in the doctors. There’s a level of community that’s needed to survive this.

Preet Bharara:

Maybe, at least, with Donald Trump, there’s some constituency that he’s trying to appeal to and has a constituency that is anti-mask, maybe, anti-vaccine, ultimately, which will be a problem for the country. He’s trying to appeal to them to show that he’s strong and he doesn’t need to have empathy.

Preet Bharara:

I’ll give you another example. It’s more a matter of showmanship, I guess, rather than substance. There’s a vice presidential debate happening tomorrow between Kamala Harris and Mike Pence. So far, as I know, it’s still scheduled to happen in-person. The Harris people have asked that the two candidates for vice president be placed further apart than they would have otherwise been. They want a plexiglass shield in front of the podiums to which the Mike Pence campaign and team responded derisively.

Preet Bharara:

Well, if Senator Harris wants to build a fortress around her, I guess that’s her problem. While the president is in the hospital, trying to recover from COVID, the idea that you mock the other side for wanting to be more responsible and to be more protective, when Mike Pence could, very well, it sounds like a speculative thing. He has a decent chance of being positive for COVID, given who he’s been around, given how many people he’s been around who do have COVID, if you’re put in a drinking game and you-

Anne Milgram:

He’s ignoring current medical advice.

Preet Bharara:

If you drank every time, I said, I don’t get it, you’d be hammered by now. I don’t get it.

Anne Milgram:

Look, I don’t know anything. I think it’s bad politics. I think that there was probably a way for the president, if he had come out of this, basically, as a more empathetic human being, I realized as I say that that there was never any chance that that was probably going to happen. It’s just not what he is.

Preet Bharara:

He wanted that. You saw those reports. His team, I think it was reported in the Times, I think, that this was kind of an opportunity to have a reset, to come out like Boris Johnson did in the UK, to come out and, as you say, have more empathy.

Anne Milgram:

Yeah. He came out with a lot more humility, and basically saying, “This is hard. We have to take this seriously.” He had a near death experience with COVID. I think the president has sort of done the opposite, which is to double down to say, “Don’t be afraid of COVID. We can’t let it ruin our lives.”

Anne Milgram:

Basically, it’s the, like, “I won. I beat COVID.” It’s just the exact wrong attitude to take at our country in a moment when there’s economic devastation, there’s incredible human devastation with lives lost, and people who have chronic illness now from being sick and recovering, but they’re still not 100%. It’s just so dismissive and just disregard to human life.

Preet Bharara:

Well, here’s the other proof that it’s bad politics. One of the changes in his standing and President Trump’s standing has been among seniors, who I think he beat Hillary Clinton in 2016, with respect to seniors, by some percentage point. I don’t remember how much. According to one recent poll, he’s 27 points in the red. It is a 27-point deficit, compared to Joe Biden, with seniors, which has been a big change over the course of the pandemic. That’s because the people who are left to suffer and potentially die from this disease, which is so callous, are those seniors.

Anne Milgram:

Agreed. Actually, I was surprised early on. I expected those numbers to have switched to that point quicker than they did. I really felt that the language and the rhetoric that the president has put out about COVID. Remember, there was that one Republican politician. I don’t remember his name, I want to say he was from Texas, but I’m not sure, who basically said, “Look, I think a lot of grandparents would be willing to sort of die and sacrifice for their kids to have the economy open.” It was just this view of people’s lives as being fungible in a way that they’re not. Yes, I think that your assessment is right on the politics.

Anne Milgram:

Preet, what do you think this means for Barrett? I was thinking a lot this weekend, two of the Republican senators on the Judiciary Committee tested positive, Mike Lee, the Republican from Utah, Thom Tillis, the Republican from North Carolina. Ron Johnson, a Republican from Wisconsin is not on judiciary, but he also tested positive.

Preet Bharara:

I don’t think it changes anything. I don’t think it changes anything. A lot of people have been asking the question, as people know I served on that committee as a staffer a number of years ago. Maybe, I was forgetting something. I talked to a couple of people who still work in the Senate. Because we’re in the time of COVID and because there’s a precedent for conducting hearings, including judiciary hearings in which either the nominee or one or more senators are able to, and are authorized, to participate remotely, at least, the scheduled for the hearings. That’s a week from yesterday, October 12th. The schedule for the hearings does not have to be altered.

Preet Bharara:

Lindsey Graham can get away with that. They can even get away with a vote for the most part in the committee because committee rules allow for proxy voting, even in ordinary times. If Senator Schumer couldn’t make it to the markup, he couldn’t make it to the vote on bills, who were a nominee, he could give his vote to Senator Durbin, for example. That can, obviously, still happen.

Preet Bharara:

It also is the case. We were having some debate earlier about whether or not the guidance was quarantine for 10 days or 14 days. Mike Lee, I think, has said, he’s only going to quarantine for 10 days, which gives him time to show up in person if he wants for the hearing on October 12th. These guys can recover in time. These guys can participate remotely, if they have to. These guys will be available to vote by proxy, if they have to. It doesn’t alter the timeline that’s very rushed, and, obviously, that I object to and you object to. That doesn’t alter that. I guess, it can have an effect on if other people become sick and have to quarantine.

Anne Milgram:

Well, even these guys.

Preet Bharara:

You can’t vote by proxy on the floor of the Senate, so an ultimate vote on [crosstalk 00:26:01].

Anne Milgram:

Right. That’s what I was going to say. It has to be in person.

Preet Bharara:

It’s not going to change the timeline for the hearing.

Anne Milgram:

What McConnell said is that he’s going to halt the floor activity until October 19th. Obviously, the Judiciary Committee is 12 to 10, Republican to Democrat, assuming that those two Republican senators, Lee and Tillis, will participate remotely by Zoom or by video. That vote goes through. She gets approved. Then, you get to the floor on the 19th, which, today being October 6th, we know that they were diagnosed last week. It would be 14 days since then.

Anne Milgram:

That assumes, though, that they’re not very ill. If you think about some of the guidances, 10 days after you’ve had symptoms. We don’t know if there’s been zero transparency. It really raises questions to me of, I know why they’re doing this, they want that seat, they want that seat at whatever costs they have to do to get it, but it does feel to me like the Senate has been lax on safety measures. You are now talking about three diagnosed positive patients potentially going to the floor of the Senate, all in the name of this prize, which is what they see it as. It’s just so troubling to me.

Preet Bharara:

Ron Johnson, one of the senators you mentioned, he is on record as saying he would come and vote in a moon suit, if he had to.

Anne Milgram:

I saw that.

Preet Bharara:

That’s how strongly they feel about rushing through this conservative judge, including around the court. I think we have to wait and see what the optics are. But, unless other people get infected, I don’t think it’s going to avert the Amy Coney Barrett vote on the floor of the Senate.

Preet Bharara:

Please, go back to this Mike Pence issue and continuity of government and why it’s so odd that he doesn’t seem to be taking this more seriously. One is, obviously, he want to make sure that every other nation knows that there’s continuity of government and there’s stability in our government. That’s incredibly important.

Preet Bharara:

The other thing is, from a pure sort of personal perspective, political perspective, from Mike Pence’s standpoint, if something would have happened to Donald Trump, he’s the only thing that’s standing between President Pence and President Pelosi, because the 1947 Succession law says, as people, I’m sure, know by now, after the president, it’s the vice president. After the vice president, it’s the Speaker of the House, who is Nancy Pelosi, of a different party. After Nancy Pelosi, it’s the President pro tem of the Senate, who is Chuck Grassley, who knows a lot about pigeons. Following that, it’s the Secretary of State. You would think that Mike Pence would want to take every precaution to prevent Nancy Pelosi from becoming the next president of the United States, because that’s how succession works.

Anne Milgram:

Yeah, you would think that. Again, I think they’re so wrapped up in this sort of argument that they’re making to the American public, that COVID is not a big deal, you can beat it, it is not something that should make us afraid. Basically, at the same time, saying, implicitly disregard the science, don’t wear a mask, don’t socially distance, don’t do all the things that the doctors are telling us to do.

Anne Milgram:

He’s leaning into that, when, in fact, the political realities that the Constitution says if something happens to the president, even temporarily, it’s Pence. There was a lot of talk about this beginning on Friday evening, when the president went to Walter Reed Medical Center, that there were questions about whether or not the president would have to turn over his powers under the Constitution, which he can do to the vice president, even temporarily, just basically, if he were to have some form of surgery, or he would be unconscious for a period of time. That’s historically the way it’s been done. The vice president temporarily takes charge. Then, when the president is feeling better, the president takes it back.

Anne Milgram:

I think it’s a sign of how deeply the president and Vice president Pence have bought into this myth, this political argument of, don’t take COVID seriously, that he would be acting in that way. It just makes zero sense from a public health or a political standpoint, or political secession.

Preet Bharara:

Can I make this one non sequitur confession for a second?

Anne Milgram:

Yeah.

Preet Bharara:

Early on, when the president went to get medical treatment and got admitted to the hospital, when I would send texts or make notes, I would spell the Medical Center, Walter Reed, R-E-A-D-E. It’s supposed to be R-E-E-D.

Anne Milgram:

Like Duane Reade.

Preet Bharara:

Like Duane Reade. I don’t know if Duane Reades are everywhere. They’re very prevalent in New York City.

Anne Milgram:

In New York, yeah.

Preet Bharara:

The drugstores. I started feeling very stupid about that. Then, I saw someone post on social media the following, “If you are not misspelling Walter Reed, R-E-A-D-E, every single time, are you even a New Yorker?”

Anne Milgram:

It’s pretty true.

Preet Bharara:

That made me feel better.

Anne Milgram:

I’m glad you didn’t ask me how to spell it, because I probably would have spelled it the Duane Reade way.

Preet Bharara:

If the president had not contracted COVID, probably, for several more days, people would be talking about the astounding. By astounding, I mean, the negative debate performance by the president. I think the polling shows very clearly that he turned off, not just Democrats, but also, Republicans, and certainly, independents, by his constant interruptions of Joe Biden, I think it was the worst debate from a viewers perspective that we’ve seen. I got to talk a little bit about that with Errol Louis, who is my guest on Stay Tuned. You and I have not really talked about it, except that we texted each other that evening. It’s six days ago.

Anne Milgram:

As we were suffering through it, yes.

Preet Bharara:

Seven days now. Do you feel strongly about that debate as you did a week ago?

Anne Milgram:

It does feel a lifetime has gone by since then. I agree. I think people have been unanimous on this, Democrat and Republican, it was a terrible debate. It was disappointing for the American public. The president was a bully. He was obnoxious. He constantly, in my view, was trying to throw the vice president off his game. It was infantile and childish. It made me angry watching it.

Anne Milgram:

Look, I thought the vice president did a good job a few times breaking through and looking directly at the camera and just talking to the people. I appreciated that. I wanted more of that, just the candidates telling us their views and sort of being substantive. Look, I’ll say this. I think Chris Wallace is a good journalist. I usually think his interviews are good. I’ve seen his interviews with the president and have thought that he was a thorough and probing journalist. I thought he was a terrible moderator. I want to be fair to him because the president is sort of a candidate unlike no other in American politics. The problem is we’ve had him as the president for the last three years.

Anne Milgram:

Any idea that this was not foreseeable, even if, maybe, Wallace didn’t know it would be this extreme, but all you have to do is watch that 2016 debate with Hillary Clinton, which also infuriated me. The way he interrupted her, the way he stood behind her. He was menacing in the town hall. It was wildly inappropriate, and, frankly, intentional bullying. I hate to see that stuff. I think it degrades all of us as Americans.

Preet Bharara:

I think Chris Wallace is not only a great interviewer and a great journalist, but also, has been a great debate moderator on a number of occasions. I think, yeah, he didn’t get the job done. I’ll just quote what Errol Louis said last week on Stay Tuned. I thought he made a lot of sense. Number one, you got to get control early on. When the president starts interfering and interrupting in an obnoxious and terrible way, you got to put your foot down, then. You can’t do it [crosstalk 00:33:37] debate.

Anne Milgram:

Can I just say, as a parent, this is the truth of parenting. Start as you want to go on.

Preet Bharara:

You don’t start when your kid is 11.

Anne Milgram:

It’s too late.

Preet Bharara:

It’s so clearer than that. Chris Wallace himself has said, “I didn’t really realize how terrible it was,” I’m paraphrasing here, “until 47 minutes in.” Well, that’s halfway through the debate. The die has been casted at that point.

Anne Milgram:

By the way, he was the only one in America who didn’t realize, then, how terrible it was within the first five minutes. It was clear. Chris Wallace, did you see this? He also said…

Chris Wallace:

I had baked this beautiful, delicious cake, and then, frankly, the president put us for dinner.

Preet Bharara:

Well, that’s disgusting.

Anne Milgram:

Yeah, the whole imagery is bad. Also, it’s not a cake. It’s the American presidential election. You didn’t bake a beautiful cake. If you’d bake a beautiful cake, it would have been a titanium shell that the president could not destroy, that neither of the candidates could destroy.

Preet Bharara:

How many metaphors do we have going on?

Anne Milgram:

I don’t know. I don’t know. We’ve gotten too far in the metaphors.

Preet Bharara:

I can’t eat a shell.

Anne Milgram:

I don’t know. It’s like Wallace’s ideas, he was baking something to present. This was his show for the American people and he was going to choreograph it in a way to get President Trump and Vice President Biden to share their views. It’s like he was in a universe on his own without understanding who he was showing up. It’s like, if you have bad ingredients, you have a bad cake. That’s my last metaphor.

Preet Bharara:

That’s okay. I like your metaphors. The other tool that he lacked, that again, Errol Louis talked about, is he didn’t have the capacity to mute either candidate. I think that people may have seen.

Anne Milgram:

Let me ask you this. Let me ask you this. You’ve cross-examined a lot of witnesses in court.

Preet Bharara:

[crosstalk 00:35:19] now?

Anne Milgram:

Did you ever have a mute button? Did you ever have a mute? Did you ever have a mute button on a witness?

Preet Bharara:

No.

Anne Milgram:

What do you do? How would you have taken control?

Preet Bharara:

No, but you don’t have two people. I know what you’re saying. But, a debate between two or more people is different from there being a single witness who you can badger and you can tell them answer the question, and the judge, none of this is comparable to a courtroom, where you have a judge in a robe. It is certainly true that, again, Errol was speaking from experience.

Preet Bharara:

He talked about a debate that he moderated for a mayor. There was kind of a difficult candidate, Bo Dietl, who he appreciated in advance might try to hijack the debate. You have to have the ability, according to some people, if someone’s going to come in and not play ball and not play by the rules and try to hijack the debate, maybe, you need access to a mute button.

Anne Milgram:

I agree completely with the mute button. I also think that there were times at the beginning where all I wanted Wallace to do was to basically say, “I’m not going to ask you another question, Mr. President. I’m going to ask Vice President Biden the questions until you comply with the rules,” or to just, basically, even just 30 seconds at the beginning, to have said, “You’ve agreed to these rules, correct? Yes. You understand that if you don’t follow them, you can’t participate in the…” Even just silence for 30 seconds to say, “This is not how we’re going to do this.”

Preet Bharara:

Time out. A time out?

Anne Milgram:

I don’t know. Yeah. There was a way for Wallace to use his pulpit. The mute button is the ultimate thing you do when you’ve lost complete control and you have no other options. I sort of felt like he waited too long to interrupt the president and tell him to remember to play by the rules. But then, he just kept going. It was almost like he was sanctioning it. I know, he wasn’t.

Anne Milgram:

Also, I want to say this, that I appreciate how reflective he’s been publicly. I think I give him a lot of credit for basically saying, “Look, I wish it turned out differently. I didn’t see this coming. It wasn’t what I wanted.” I do give him a lot of credit for that. But, I think this was an example. It was a very hard example, but this was an example of a failure for the American people, at the end of the day. It was on the president. It’s on the president.

Preet Bharara:

Yeah. What I think about is, when you see people fail at something, even though they’ve been very successful time in and time out, previously, I always bear that in mind. It’s, I think, an important thing to bear in mind, so you have humility. I’m sure Chris Wallace had some butterflies because normal people do. Maybe, he doesn’t. Maybe, he’s more arrogant than that. But, I would always say to my team before I was going to do a big speech or a news conference or an important meeting, I always say to my deputy, “This could be my Waterloo. This one could be it.”

Anne Milgram:

Right. You’ll never know.

Preet Bharara:

I think I said it before every single time, and they would laugh and say, “It always goes well.” It always goes well, until it doesn’t go well. You always test negative for COVID until you test positive for COVID. I always would literally utter that line, like, “Here we go. This could be my Waterloo.” Sometimes, it is. I always keep that in mind. It’s free advice today from me.

Anne Milgram:

Should we talk about Michael Flynn, Preet, before we finish up for the day?

Preet Bharara:

Yeah. Look, I’m 34 prior occasions we have summarized the saga, we always call it a saga, of Michael Flynn. I think people are generally familiar with it, the Department of Justice, even though they got two guilty pleas from Michael Flynn for making false statements. Two agents have tried to dismiss the case. Flynn’s lawyers have tried to get the judge to not exercise discretion and blah-blah-blah-blah-blah back with the district court judge. There was an interesting and revealing court appearance the other day with Michael Flynn’s lawyer, Sidney Powell, right?

Anne Milgram:

Yes. First of all, many of our listeners may be shocked to know that this case continues on. It’s been going on since, really, this was Michael Flynn’s conduct dates back to January of 2016 when he told the falsehoods about having spoken with the Russian ambassador during the transition. This sort of now comes back. In this hearing, one of the questions was related to whether or not Flynn’s lawyer, Sidney Powell, had spoken with the president of the United States about this case.

Anne Milgram:

In a fascinating exchange, she, basically, was arguing executive privilege. The president is not a member of Michael Flynn’s legal team. He works for the government. It’s a bizarre assessment. It was really a red herring. Judge Sullivan quickly dispatched it and said that there was no protection. Then, she goes on. She’s still a little bit cagey, but she goes on to say that she has spoken with the president about it. She’s briefed him. It’s been publicly reported. I believe it was the Washington Post that reported that she’s had five conversations with the president. She would not put a specific number on it. That is a lot of conversations with the president of the United States about your client, Michael Flynn. I thought that was a really telling part of the conversation.

Anne Milgram:

The other piece that I think we should just point out, and I don’t know if you were struck by it, but, Former Judge John Gleeson who Judge Sullivan had appointed as the amicus to sort of look at did Michael Flynn commit perjury was the government acting in bad faith when they were moving to dismiss this. You and I both know Judge Gleeson. He’s a man, in my view, of great integrity. He basically calls what Bill Barr in the Justice Department has done a gross prosecutorial abuse. Remember, Judge Gleeson was a career prosecutor in the Eastern District. He was one of the John Gotti prosecutors. That was chilling to me to see him actually say that.

Preet Bharara:

It’s just bizarre, in a case in which a lot of the allegations and a lot of the optics revolve around this idea that the president wants some favorable treatment for someone who worked for him, his former National Security Adviser. It still is very popular among the president’s base.

Preet Bharara:

Understanding the presidential involvement in an actual specific enforcement action with respect to one of his allies is a terrible look, and also, not the way justice should be applied and administered in this country, in that context, after three years at this point, to hear an open court that the lawyer from Michael Flynn is conversing on a regular basis with the president.

Preet Bharara:

Some of those conversations go to the issue of pardoning. That’s why people are upset with how this has been conducted. It essentially proves to the court that this is not an ordinary case. There’s been extraordinary interference. People also look askance at that.

Anne Milgram:

Yeah, I agree. We’ve had this conversation many times, why would Bill Barr do this. He’s made what I believe is a really inaccurate statement about the predicate that the FBI had to open the investigation and to actually interview Flynn. I strongly disagree with his view that it was not material. Again, he’s sort of built this very convoluted argument in an effort to get it dismissed. It’s like, why is he doing it? You have the president of the United States, who’s the Svengali who’s pulling the strings not so behind closed doors anymore. We now know there are at least five conversations.

Anne Milgram:

It should trouble everyone who thinks that justice should be blind and prosecutions and pleas should be done without political interference, as I think both you and I believe. It was almost like proof of something we’ve known through inferences, through circumstantial evidence, of this smells really bad, something must be wrong. There’s no basis to make this argument. Then, all of a sudden, of course, at the end of the day, it’s like the Wizard of Oz, you pull back the curtains and there’s the president of United States meeting with Flynn’s defense lawyer, choreographing all of this.

Preet Bharara:

The case goes on.

Anne Milgram:

It’s not done. Yes, it will wait for Judge Sullivan to rule. Now, the question is, will he agree to the motion to dismiss the case that the government has brought has to be approved by the court? The question is, does he approve it?

Preet Bharara:

How do you feel working in an anarchist jurisdiction, Anne?

Anne Milgram:

I feel pretty good about it.

Preet Bharara:

Are you proud, I think, with anarchy?

Anne Milgram:

Yeah. Having walked around the streets of New York City, I can tell you, it does not feel very anarchist at all. I don’t know if you’ve gotten the same feeling. But, remember, the president, on September 2nd, had put out a memo without any legal citations where he directed the Attorney General working with OMB, the budget folks, and the Department of Homeland Security, to look at all federal funding that goes to what they would classify as anarchist jurisdictions that, in their words, permitted violence and the destruction of property during the protests related to Black Lives Matter and the killing of George Floyd. Barr, then, came back on September 21st and classified New York, Portland, and Seattle as the first three anarchist jurisdictions.

Preet Bharara:

The bottom line is it’s a political stunt. It’s a political rhetoric. There’s no legal meaning.

Anne Milgram:

I see no way it’s legal. I feel the same.

Preet Bharara:

There’s no legal meaning attached to this idea of calling a jurisdiction or a municipality anarchist. It sounds chilling to people who have never been to New York or Portland or Seattle, again, the same constituency who Donald Trump likes to tell he’s a law and order president, though, he doesn’t know exactly what that means. It seems an odd thing to say we’re going to take funds away from a city because they’re not using enough funds to deal with crime in the city. It seems to be counterproductive.

Anne Milgram:

Yes. Crime and public order are very much local than state powers.

Preet Bharara:

Yes, which is a feature of federalism, which Republicans and conservatives used to care about, I guess not in this context. The designation has no legal meaning other than to provide, I guess, post-election, maybe, pre-election, some basis for a threat to take away funding from localities, like those three cities. It’s not as easy as that.

Anne Milgram:

No. Congress would have to. Yes, exactly.

Preet Bharara:

Yeah, it’s a Congressional role. It’s not like there’s one bucket of money. Every year, it’s not like the president writes a check to New York City. They’re not going to keep sending that check. There are various streams related to grants and other things that the federal government gives to various cities. There are laws. In fact, the Constitution prescribes and regulates the way in which you can condition that money. There have been various court opinions that say it can’t be coercive and you can’t hold a gun to the head of the jurisdiction. As you’ve already said, it’s really the role of Congress. It seems to me, this is a big political stunt. Is it effective? I don’t know.

Anne Milgram:

One last point on it that’s also worth taking a moment to consider, which is that. They had this moment during the debate where the president was saying the democratic cities are lawless. Biden was saying, “Yeah, have you looked at the Republican cities? There’s no distinction between them.”

Anne Milgram:

It’s worth noting that crime is generally not up nationwide. It’s actually either the same or down. Homicides, murders are up in Democratic cities. The murder rate is up by 29%. In Republican cities, the murder rate is up by 26%. Miami is an example where it’s up by 28%.

Anne Milgram:

It feels so arbitrary for the president just to pick these three cities. It may not be arbitrary when you think about the politics that you just went through, because one thing that’s true of all three of those cities is that both they are Democratic mayors and they are Democratic governors of those states. If you think about Florida, Florida is a Republican state right now.

Anne Milgram:

The president has chosen to sort of, again, have this policy that he only has it towards his political opponents, not towards everyone. Again, it’s troubling. In addition to the fact that this is totally unlawful, it’s just misleading and wrong, to basically say, that Democratic cities are less safe. The statistical difference between 26 and 29% is small. All cities are up for murders this year. We should all be thinking about that and working to combat that. It’s not a political question.

Preet Bharara:

Anne, you and I had a good laugh a week or two ago over this cease and desist letter sent by an attorney to a very famous actor, Bill Murray. It’s odd to have a sentence in which you say we had a good laugh over a cease and desist letter, because those things, cease and desist, is unfunny. You wouldn’t think you could get anybody to laugh over it.

Preet Bharara:

Lawyers, generally, are not funny. Although, I think you’re funny. Certainly, legal correspondence is very hard for average mortals and laypeople to understand and not fall asleep to. Just pick any set of terms and conditions of any product or website that you ever use. Those are drafted by lawyers. Lawyers are not known to speak in plain language and, certainly, not known just to speak in funny language.

Preet Bharara:

One of the reasons why being in private practice is kind of stultifying is because ordinary language gets drummed out of you.

Anne Milgram:

It’s so true.

Preet Bharara:

Yeah. I guess, this is a lesson to lawyers everywhere. You can use plain language. You can use short declarative sentences. You can get to the point. You can be funny in the service of your client. There’s one lesson I remember learning when I was in private practice, long before I became an AUSA. There’s one partner who I thought had the best letter writing skills. I know you’re thinking, “Letter writing skill? Yeah, that’s a real skill.” I’ll never forget the time I was walking into the partner’s office. I’ll even use his first name, Mitch. Mitch was talking to a more junior lawyer who was asking whether the letter went out to the other side, to the adversary, on behalf of the client. The more junior lawyer said, “Yeah, it had gone out.”

Preet Bharara:

Mitch says, “Did that letter go out under my name or under your name?” The junior lawyer says, “Well, it went out under my name, because I know you didn’t have a chance to look at it at the end and give it a final once over.” I’m like the first year now just green practicing lawyer at this moment. Mitch says, “Well, I think the client would have known that the letter didn’t come from me, because it doesn’t take me seven pages to say FU.” You know what? It should never take you seven pages to say FU.

Anne Milgram:

I think people probably don’t realize how much lawyers write letters. Litigation can be long and difficult and expensive. Cease and desist letters are written frequently before you go into litigation to basically say, “Hey, cut this out. Let’s not go further.” It’s usually just meant as a way of saying it’s a threat. Sometimes, they work. Sometimes, they don’t. It certainly takes a lot less time and effort for a client to go through than actually litigating. It’s often the first step. Lawyers write lot of these letters. I’ve written them. You’ve probably written them. But, I’ve never written one as wonderful as the one we’re about to read.

Preet Bharara:

There was a particular letter written from the General Counsel’s Office at the New York Times to Donald Trump. Donald Trump was going to sue the New York Times. Basically, they literally made the point that, for there to be harm to your reputation, you have to have a good reputation.

Anne Milgram:

That’s a great letter.

Preet Bharara:

“So far, your reputation is already in the toilet, Mr. President. We could not have done you any harm as an obvious legal matter.” You can have fun with things like that. The letter that made the rounds, I think, not just in legal circles, but more widely, involves a controversy with Bill Murray, the actor who I love, Groundhog Day-

Anne Milgram:

I love him, too. Yeah, Groundhog Day.

Preet Bharara:

Groundhog Day. Who are you going to call?

Anne Milgram:

Ghostbusters.

Preet Bharara:

That took you an extra [crosstalk 00:51:07].

Anne Milgram:

I was like, “Wait. Who am I going to…?”

Preet Bharara:

People don’t know we don’t rehearse this. We don’t rehearse this in advance.

Anne Milgram:

They would never know.

Preet Bharara:

I will say something dumb. I wait for him to respond, and vice versa. Bill Murray has a line of golf apparel, William Murray Golf Shirts. He, apparently, has been using in his ads the music of the Doobie Brothers. A lawyer for the Doobie Brothers, Peter Paterno, wrote the following letter to Bill Murray. Do you want to start reading it?

Anne Milgram:

“Dear, Mr. Murray, we’re writing on behalf of our clients, the Doobie Brothers. The Doobie Brothers perform and recorded the song, Listen to the Music, which Tom Johnston of the Doobie Brothers wrote. It’s a fine song. I know you agree, because you keep using it in ads for your Zero Hucks Given golf shirts. However, given that you haven’t paid to use it, maybe you should change the name to Zero Bucks Given.”

Preet Bharara:

The letter goes on. “We understand that you’re running other ads using music from our other clients. It seems like the only person who uses our client’s music without permission more than you do is Donald Trump. This is the part where I’m supposed to cite the United States Copyright Act, excoriate you for not complying with some subparagraph that I’m too lazy to look up, and threaten you with eternal damnation for doing so. But, you already earned that with those Garfield movies. You already know that you can’t use music and ads without paying for it.”

Anne Milgram:

“We’d almost be okay with it if the shirts weren’t so damn ugly. But, it is what it is. In the immortal words of John Paul Sartre, ‘Au revoir Golfer.’ Sincerely, Peter T. Paterno.”

Preet Bharara:

I think I commented when I first saw the letter-

Anne Milgram:

It’s a great letter.

Preet Bharara:

… that if I ever re-enter the traditional practice of law, all of my correspondence will take on this tone and style.

Anne Milgram:

It’s fantastic. I would also note that Bill Murray’s lawyer responded. It’s a far less funny response. Basically, their offer to work it out is to send golf shirts.

Preet Bharara:

The one that were cited as very ugly?

Anne Milgram:

Yes. Basically said, “Please, send me your shirt size, along with the shirt sizes of the Doobie Brothers, along with which of our client’s shirts you find the least offensive.” It quotes a lot of Doobie Brothers’ song titles in it. If all lawyers practice that way, I think people might like lawyers a lot more than they do.

Preet Bharara:

Yeah, and they might live longer. Alright. The debate this week, we’ll see more developments in COVID. Who knows what’s in store in the next week, with 28 days left until the end of the election? Send us your questions to [email protected]

Anne Milgram:

We’ll do our best to answer them. Take care, Preet.

Preet Bharara:

Take care, Anne. That’s it for this week’s Insider podcast. Your hosts are Preet Bharara and Anne Milgram. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The senior audio producer is David Tatasciore. The CAFE team is Matthew Billy, Nat Weiner, Sam Ozer-Staton, David Kurlander, Noa Azulai, Jake Kaplan, Calvin Lord, Geoff Isenman, Chris Boylan, Sean Walsh, and Margot Maley. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.