• Transcript
  • Show Notes

In this episode of CAFE Insider, “Sulkers & Losers,” Preet and Anne celebrate CAFE Insider’s two-year anniversary while breaking down President Trump’s decision to put Rudy Giuliani in charge of his legal efforts to contest the outcome of the election, Ronald Klain’s appointment as White House chief of staff, Supreme Court Justice Samuel Alito’s controversial speech at the Federalist Society Convention, 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 & Sam Ozer-Staton – Editorial Producers

 

REFERENCES & SUPPLEMENTAL MATERIALS

TRUMP CONTESTS ELECTION RESULTS

Presidential Election Results: Biden Wins, NYT/Edison Research

“Joint Statement from Elections Infrastructure Government Coordinating Council & the Election Infrastructure Sector Coordinating Executive Committees,” Cybersecurity & Infrastructure Security Agency statement, 11/12/20

“Ga. secretary of state says fellow Republicans are pressuring him to find ways to exclude ballots,” WaPo, 11/16/20

“As Tensions Among Republicans Mount, Georgia’s Recount Proceeds Smoothly,” NYT, 11/16/20

“Trump campaign jettisons major parts of its legal challenge against Pennsylvania’s election results,” WaPo, 11/15/20

“Supreme Court goes idle on Trump-related disputes and time is running out,” WaPo, 11/13/20

“Trump campaign drops Arizona lawsuit requesting review of ballots,” CNN, 11/13/20

“Trump puts Giuliani in charge of his lawsuits challenging the election results,” NYT, 11/13/20

“Federal prosecutors assigned to monitor election malfeasance tell Barr they see no evidence of substantial irregularities,” WaPo, 11/13/20

“The Times Called Officials in Every State: No Evidence of Voter Fraud,” NYT, 11/10/20

“DOJ’s election crimes chief resigns post after Barr allows prosecutors to probe voter fraud claims,” NBC News, 11/10/20

“Loeffler, Perdue call on Georgia’s Republican secretary of state to resign,” Politico, 11/9/20

Daniel Dale tweet, 11/13/20

Preet Bharara tweet, 11/13/20

BIDEN TRANSITION

“Kavanaugh and The Court (with Ron Klain),” Stay Tuned with Preet, 9/13/18

U.S Constitution Article II, Section 2, Clause 2. Appointments Clause

5 U.S. Code § 3345. Acting Officer

5 U.S. Code § 3346. Time limitation

5 U.S. Code § 3349. Reporting of vacancies

“President-elect Joe Biden Names Ron Klain as White House Chief of Staff,” Biden-Harris Transition statement, 11/11/20

“Lankford argues he did ‘step in’ Friday and had private conversation with GSA over Biden transition process,” CNN, 11/16/20

“There are 2 effective Covid-19 vaccines. What’s next?” Politico, 11/16/20

“After thousands of Trump supporters rally in D.C., violence erupts when night falls,” WaPo, 11/15/20

“Biden’s choice of Ron Klain to run White House signals rejection of Trump-era chaos,” WaPo, Michael Scherer, 11/11/20

“Is It Time to Reform the Federal Vacancies Reform Act?” Lawfare, 3/10/20

Ryan Goodman tweets, 11/12/20

SAMUEL ALITO SPEECH

“Samuel Alito’s provocative, unusually political speech,” WaPo, 11/13/20

“Sam Alito Delivers Grievance-Laden, Ultrapartisan Speech to the Federalist Society,” Slate, 11/12/20

“Argument analysis: ACA seems likely to survive, but on what ground?” SCOTUSblog, 11/10/20

VIDEO: Address by Justice Samuel Alito, 11/12/20

Biden’s Staff Appointments Signal a Return to Normalcy in the White House

With the appointment of Ronald Klain as White House chief of staff, President-elect Biden is sending a message that the incoming leaders of his administration are experienced and ready to tackle the issues facing the country.

President Trump continues to contest the results of the presidential election, despite all major news organizations calling the race for President-elect Joe Biden. Preet and Anne assess whether Trump has any possible path to victory through the courts, an effort being led by — of all people — Trump’s personal attorney, Rudy Giuliani.

Meanwhile, despite Trump’s refusal to concede, the Biden team is forging ahead with the transition process by naming Ronald Klain as incoming White House chief of staff. Preet and Anne discuss Klain’s extensive Washington experience — particularly his work in the Obama administration handling the Ebola outbreak. 

And, Supreme Court Justice Samuel Alito gave an unexpectedly provocative speech at the Federalist Society Convention last week. Preet and Anne discuss the likely motivations behind Alito’s comments, and what they mean for the future of a Court that has moved sharply to the right. 

 

Preet Bharara:

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

Anne Milgram:

And I’m Anne Milgram.

Preet Bharara:

Happy anniversary Anne.

Anne Milgram:

Happy anniversary.

Preet Bharara:

It is not your wedding anniversary nor mine. What is the anniversary that we’re referring to?

Anne Milgram:

It is the two year anniversary of our starting CAFE Insider.

Preet Bharara:

What is the two year thing?

Anne Milgram:

You know what-

Preet Bharara:

Gold.

Anne Milgram:

… cotton, which means, I think you should have gotten me embroidered penguin towels or something.

Preet Bharara:

They’re on the way. Production is down due to the pandemic.

Anne Milgram:

Or maybe woven quack socks, yeah.

Preet Bharara:

Woven quack socks. We’ll have some more to say about what it’s like to have done this for two years, but it both feels like five minutes and also 31 years kind of like every day.

Anne Milgram:

I’m going to take that as a compliment-ish.

Preet Bharara:

No. Meaning in a good way. Not that it’s tiresome, it feels like we’ve been doing this a long time and it’s just a comfortable routine. We had that dramatic change from Monday to Tuesday.

Anne Milgram:

We did. That was a big change and it’s one of the highlights of my week, period. I love getting a chance to talk to you and think about all these issues and questions. And I also really love the feedback we get from listeners. So it’s been a great joy.

Preet Bharara:

No, the feedback from listeners is really important. We can’t respond to everything, but we read everything. The one thing I will say about doing this for two years, and I want people to appreciate the tremendous sacrifice that you and I make. Now I’m speaking somewhat ironically and that is, there are weeks when we want to ignore the news because it’s just too much. And we don’t have that luxury because come Tuesday morning, we got to be prepared to talk about it all. So no head in the sand for us.

Anne Milgram:

No, definitely not. I was thinking about this too. I mean, we started really at the height of the Mueller investigation. I mean, a lot of our first early-

Preet Bharara:

I don’t know what you’re talking about. What is that?

Anne Milgram:

I know, it feels like a million years ago. It’s true. That’s what you mean by 31 years. And now we’ve come all the way through the 2020 election. And there’s still a lot to talk about. I think both of us keep thinking, “Oh, someday we’ll run out of things to talk about,” but hasn’t happened yet.

Preet Bharara:

Has not happened yet. Did you get the tornado warning over the weekend?

Anne Milgram:

I did get the tornado warning. I did. Did you get it?

Preet Bharara:

Yeah. And I’m at home in Westchester and you don’t usually see tornado warnings in New York City or in Westchester. Other parts of the country, you get that. But the bizarre thing for me was at the very moment that the tornado warning came through on all our phones and they said shelter in place, do you know what I was doing at that precise moment?

Anne Milgram:

Sheltering in place?

Preet Bharara:

Well, accidentally, because I was in my basement looking into my laptop camera doing a CNN interview with Wolf Blitzer.

Anne Milgram:

It would have been like one of those live weather reports, if there really was a tornado.

Preet Bharara:

I can hear the downfall. But the reason I mentioned it is I’m doing the hit and I’m looking at my phone and I’m seeing tornado warning shelter in place, which means come to the basement. And my entire family, I discovered later we’re going to come to the basement.

Anne Milgram:

To CNN shelter with you.

Preet Bharara:

They didn’t want to interrupt the CNN hit, although that I think had gone viral. And they subjected themselves to a crazy potential tornado and the wrath of mother nature-

Anne Milgram:

All for you and your job.

Preet Bharara:

… so Wolf Blitzer could complete the interview.

Anne Milgram:

I hope Wolf appreciates that.

Preet Bharara:

I don’t know that he knows, but I think I’ll have to let them know. But I have mixed feelings about that. I’m not sure that was the kind of thing that they needed to sacrifice themselves for. All right. So I have a question for you Anne, let’s get into some of the legal issues going on. And this is an object lesson in the principle that just because someone has a legal argument that they feel like they want to make in court doesn’t mean it’s a worthwhile argument. Doesn’t mean it’s not a laughable argument. Is Trump still contesting the election?

Anne Milgram:

He is, but not nearly as much as he was. And so we know that all the states have now been polled with Biden winning 306 electoral votes and President Trump getting 232. And remember there was a lot of litigation going on across the country, but we’ve seen a lot of members of the president’s legal team quit. Just today or yesterday, I think some of the Pennsylvania lawyers dropped out of that case. They also essentially removed the fraud claim from the Pennsylvania litigation that the Trump folks had brought. They dismiss the Arizona claims. And so there’s a little bit of litigation out there. They have not been successful on really any of it. And so I think, I mean, are you surprised it’s still going?

Preet Bharara:

I’m not because Trump doesn’t feel like facing reality. I just want to pause on that number and people have said this, but I think it bears repeating that Biden ends up at 306 electoral votes. And I think going up on six million and counting spread in the popular vote. Donald Trump had 306 electoral votes back in 2016 and he never said anything other than-

Donald Trump:

Not only did we win the election, we had an electoral college landslide, okay? It was a landslide.

Preet Bharara:

… even though he lost the popular vote.

Anne Milgram:

An electoral college landslide, he called it.

Preet Bharara:

So how’s that phrase go? You’ll know. What’s good for the goose-

Anne Milgram:

Is good for the gander.

Preet Bharara:

… is good for the gander.

Anne Milgram:

It wasn’t electoral college landside. It was also different in one fundamental way from 2016, which is that Biden is leading in the popular vote by a strong margin. Remember Hillary Rodham Clinton had won the popular-

Preet Bharara:

Yeah. Six million and counting.

Anne Milgram:

Yes, and Biden has six million more than President Trump. So it’s a significant victory. I mean, look, it’s worth noting that the president got over 70 million votes, which is a lot of votes. And so it’s important to note that it wasn’t a complete blowout. But yes, by all counts, the electoral college map and by the popular vote Biden won decisively.

Preet Bharara:

Do you agree that when Donald Trump decided to put Rudy Giuliani in charge of all election efforts in the courts and communication that that was effectively Trump conceding the race?

Anne Milgram:

Yeah. I mean, what does it say about the president of the United States that the only person he really can get to stay on his legal team is his loyalist, Rudy Giuliani. Look, Giuliani used to be a serious lawyer. He was considered an accomplished lawyer. He was the former Southern District of New York US attorney. He was obviously the mayor of New York City. Those days are gone in my opinion.

Anne Milgram:

And so he’s become really, I think the political lawyer for the president and really, the other thing I noted is that the president said, “Oh, Giuliani is going to run my legal team and my communications team,” which is also just a really strange move. And their whole argument, I mean, you know this, but their whole argument, they’ve got this whole movement out there calling Stop The Steal.

Anne Milgram:

Again, it’s this idea that the election has been rigged and there’s zero evidence of that. And so Giuliani of all people having been former prosecutors should know that and yet, he’s a complete loyalist. And so I agree with you though, on the merits and on their ability to win a case, adding Giuliani to the team did not… They were already doing terribly. The idea that they would do… If it’s possible, I think they’ll do even worse in the courts now.

Preet Bharara:

Through these lines from a Maggie Haberman story in the New York Times that I think really explain what’s going on. “Mr. Trump has been trying every possible option to change the outcome and trying to get what he sees as fighters making his case. And here’s the key part, often conflating immediate strategy with a legal one.” And she goes on to write, “Giuliani has been very optimistic and waxes poetic about the likelihood that Trump will win the election. A half dozen other Trump advisers have described Mr. Giuliani’s efforts as counterproductive and said that he was giving the president unwarranted optimism about what could happen.” I think even since the time that was written about four days ago, that President Trump understands that it’s over for him. And he’s looking for a face saving way to go out probably by announcing for 2024.

Preet Bharara:

It is a remarkable thing in Trump’s orbit. There’ve been stories over the years where people give Trump at the resolute desk, apparently, nice articles about him. They cherry pick to show him good stuff that’s being said about him. He himself, when there’s a sea of negativity on the part of mainstream media outlets, including Fox News, they’ll find some random outlet or blog somewhere that takes a contrary point of view. He’s not open-eyed about anything.

Anne Milgram:

No, it’s true. I mean, one thing that’s interesting though, and I’ve been thinking a little bit about the legal process because at some point you hit the courts. And it’s worth noting that judges are either elected or politically appointed and nationwide, they come from both political parties. And many of them have life tenure, meaning that those jobs are for life, not all judges who are elected run for reelection or they have what’s called retention elections, meaning that they get to stay in their job. But the legal process here has really worked. And so the president may not be clear eyed about any of it, but the courts have been.

Anne Milgram:

And that led, I mean, remember in Pennsylvania, the president was suing saying that election officials had violated the Trump campaign’s constitutional rights by limiting the ability of the Trump campaign’s observers to watch the votes being counted. It wasn’t true. It was a bold face lie. And they ultimately, they had to remove that, they had to take that out of the complaint because it was shown to not be true.

Anne Milgram:

And so the thing about courts and I’ve been feeling particularly grateful for them during the past week or two since the election, because they really have sorted through and they just have not allowed the kind of nonsense that the president… Like his litigation in the media, he’s used to winning that or he’s used to doing exactly what you say, which is holding up one outlet whether it’s reputable or not, and saying like, “Look, they support me,” but in a court of law, you have to bring the evidence and you have to bring the facts and they couldn’t do it. And so they lost. And I think it’s sort of like a bulwark against the sort of manipulation of the democracy in a way.

Anne Milgram:

And look, I don’t think it’s perfect, but I’ve just been really pleased to see it. And the other point worth making on the litigation and why I think the president knows it’s over is that, even in the case that’s still remaining in Pennsylvania, you’re talking about a few 1,000 votes and Biden has won Pennsylvania by 69,000 votes. And so let’s say you took off 10,000 votes or 3,000 votes. And those are the sort of litigation is in that ballpark-

Preet Bharara:

Wait, so what, 69,000 minus 10,000.

Anne Milgram:

Yeah.

Preet Bharara:

Is that still above zero? Is that a non zero?

Anne Milgram:

It’s a non-zero number, take away even a few 1,000 more you’re still at a decisive win for Biden. There’s a recount happening in Georgia, but Biden has a 14,000 vote lead there. There’s just the likelihood of anything happening that would disrupt Biden’s victory. I think it is actually a zero number at this point. I mean, I don’t know the statistical odds, but.

Preet Bharara:

Yeah. Can we talk about the attorney general, Will Barr, as if I want?

Anne Milgram:

Let’s talk about him, yeah.

Preet Bharara:

So last week we talked about this memo that he issued, that on its face wasn’t crazy sounding, but it did seem to violate longstanding department policy that certain kinds of election investigations and cases would not be pursued until election results were certified by whatever the local authority is. And it was deemed to be a significant enough breach of norms and standards and policies that the head of the election section within the public integrity section of the department of justice withdrew from that position.

Preet Bharara:

And we said last week, that was the latest in a long line of rebukes by career prosecutors, the four lawyers who resigned from the Roger Stone case, the multiple assistant US attorneys who written op-eds criticizing the sitting attorney general. And now you see that there’s this extraordinary letter, sorry to use your word, written by 16, not one, not two, not three, but 16 assistant US attorneys who were assigned to monitor election malfeasance in the 2020 election. And they wrote a letter to the attorney general urging him to rescind that memorandum that we talked about last week. So I’ve lost count now of how many career prosecutors within the department have gone out of their way to publicly or privately rebuke the attorney general; never seen anything like it.

Anne Milgram:

I’ve never seen anything like it. I think you’re right to use extraordinary because it is, it’s remarkable to me. And the letter was shown to the Washington Post and in it, the 16 prosecutors basically say that Barr’s policy change to the longstanding department policy of not doing anything on election fraud until the election results are certified “thrusts career prosecutors into partisan politics.” And these are 16 folks who’ve served as district election officers. They’ve taken in reports of possible election related crimes. And they basically say that there’s no evidence of any kind of fraud that the type of which Barr was noting. And they basically called Barr up for being partisan and basically putting them in a position that really is not ever the position that a federal prosecutor should be in. And so, I give them a lot of credit.

Anne Milgram:

Because what all of that does, people should understand. It’s not just that they’re speaking out. If Barr does try to bring one of those cases, it really turns the spotlight and it then becomes Barr’s responsibility to argue that it’s not partisan. They’ve basically said everything that comes from here on out is going to be partisan. And that’s a really important thing to do because instead of letting Barr just get away with it, they’re checking him in a way that makes all of us focus on it. And I think, again, I don’t expect any evidence of fraud to come out related to the election of the sort of stuff we’re talking about at this point in time. But again, it’s the whole point is Barr shouldn’t have changed the rules and the rules clearly appear to favor the president and more partisan.

Preet Bharara:

And to the extent people think this 16 were some insular, deep state group of folks in a bureaucratic office in DC, that’s not the case. These 16 assistant US attorneys came from 15 different federal court districts all over the country; Pennsylvania, North Carolina, New Mexico, New York, Oregon, Northern California, the list goes on and on. So these are people who in their independent judgment, all around the country, having been assigned this task all came to the same conclusion that Will Barr was inserting politics into law enforcement and law enforcement into politics. And you’re not supposed to do that.

Preet Bharara:

There’s other evidence by the way, that shows this whole myth of significant voter fraud is exactly that a myth. This is one of my favorites. This is the president’s own administration, the cybersecurity and infrastructure security agency. They put out a statement. So it’s not just those AUSAs, it’s not just some folks in the media. It’s not just the Brennan Center, it’s an agency within the president’s own government. And they had a very arresting phrase in their statement, which is, the November 3rd election was the most secure in American history.

Preet Bharara:

And they also write, there is no evidence that any voting system deleted or lost votes changed votes or wasn’t any way compromised. And they go on to say, “Well, we know that there are many unfounded claims and opportunities for misinformation about the process of our elections. We can assure you, we have the utmost confidence in the security and integrity of our elections, and you should too.” That’s pretty… Can we say extraordinary again or no?

Anne Milgram:

Yes, we can.

Preet Bharara:

Have we used our quota of extraordinary?

Anne Milgram:

I don’t remember them ever speaking out publicly like that before, and maybe I haven’t followed it this closely, but I also thought it was really significant that they came out with that kind of statement and maybe they haven’t spoken out before, but the president of the United States has never cast doubt around a free and fair election in the way that’s happening right now. One of my favorite quotes came from a New York Times story where they called all 50 states to basically say, “Have you seen any evidence of fraud?” And they talked to 45 of the states and the states, they said no. And the other five states, they sent them to other folks who were [inaudible 00:16:26].

Anne Milgram:

But basically, they did not uncover in all 50 states a single incident of reported fraud. But my favorite quote was from Frank LaRose, a Republican who serves as Ohio’s Secretary of State. And he said, “There’s a great human capacity for inventing things that aren’t true about elections. The conspiracy theories and rumors and all those things run rampant. For some reason, elections breed that type of methodology.”

Anne Milgram:

Again, there’s a lot of talk about this, but the reality is that elections run really well. And I think it’s important again, to remind folks that my experience with elections was it really is not partisan in the way I think that people think it is. There are partisan candidates running for election, but the actual process is really coordinated between the political parties. Both parties will have observers there. When votes are counted, they’ll have poll watchers there. The political campaigns have those same individuals there representing their interests.

Anne Milgram:

And so there are mistakes that happen, of course, but like the overall process, it is really done and I think, as fair and neutral and process-oriented ways it as it can be. And so I’ve been really impressed by both the Democrat and Republican Secretary of State that have come out and been really firm in saying the election was fair. And that leads me to ask you about the Georgia Secretary of State. Who’s a Republican, Mr. Raffensperger, who was in the news a little bit yesterday because of a call he had with Senator Lindsey Graham of South Carolina.

Preet Bharara:

Yeah. Well, a couple of things would that Republican Secretary of State. First, he’s come under fire from the two Republican senators in the state, Loeffler and Perdue, who are facing a runoff and they’re unhappy about that. What’s remarkable to me about the way Trump and Trumpists and Trump allies deal with the world is, they first have a theory, they have a theory about the deep state or they have a theory about the mainstream media.

Preet Bharara:

And so if you belong to a particular group, like you’re liberal or progressive or you’re with the mainstream media, then you’re not to be believed and you have some agenda. But then sometimes somebody within your own orbit, like a Republican Secretary of State or like Fox News also does something you don’t like and then that principal no longer works. And so they find themselves attacking anybody no matter where they’re from, who they are, what their beliefs and opinions are, if it just doesn’t match what the president wants.

Preet Bharara:

And this is the same, they have to really reach for straws, grasp for straws in trying to claim that this Republican Secretary of State is trying to do something to damage fellow Republicans electoral chances as opposed to maybe he was just doing his job. So you have that as a backdrop and then you have this call with Lindsey Graham, Senator from a different state who… I don’t know whether there’s a transcript of the call, we just have the characterization from the Secretary of State. But he feels that he was pressured to come up with a way to throw out enormous batches of votes wholesale.

Preet Bharara:

Now, I don’t know what you make of the claims that immediately began to pour forth that Lindsey Graham is a criminal and he’s committed a crime and it’s a felony. I think that on every side and both ends of the political spectrum, people are too quick to call for criminal prosecution and it seems to be a feature of political disagreement in the last four years. You and I actually did prosecutions and if we jumped to that conclusion at the first whiff of potential misconduct or misbehavior, we wouldn’t have been doing our jobs very well. But I don’t know what you think about that.

Anne Milgram:

I agree with that. I mean, I think to sort of argue that this meets the legal threshold of election fraud on its face is incorrect. I mean, what has been reported is pressure to not count votes or to sort of suggest ways to the Georgia Secretary of State to not count votes. That it appears to me, it feels to me like it’s unethical. Well, first of all, let’s start at the beginning. Why is the Senator from South Carolina calling the Georgia Secretary of State? And so Graham should have to answer for that through some process and maybe it’s a congressional inquiry or an ethics question, but that’s a problem. And if he is exerting pressure whether it’s subtle or sort of roundabout, that’s wrong.

Anne Milgram:

Now, does it rise to the level of a crime as to what’s reported? I think people are too quick to say that everything’s an election fraud crime, but it does feel to me like if true it’s an ethical violation. It’s potentially a misuse of Graham’s power. In my view, I don’t see a crime here but I do see a problem. And I really appreciate the Georgia Secretary of State reaching out because you know what I think Preet, I would like to know how many people did Lindsey Graham call? How many Secretaries of States did he call? Did he call all the Republican Secretary of States where there was a recount? Did other members of Trump’s team make those calls? And again, they’re pushing influence to try to make the election unfair, to actually not have people’s vote counted.

Anne Milgram:

And so I think, if it’s part of a larger scheme or plan and I am certainly very, very curious about that, I would want to know that. And it’s possible that there is more there. On its face, it just feels like dirty, dirty politics. And frankly, what people in America should be sick of, which is somebody like Lindsey Graham who’s the chair of the Judiciary Committee trying to use his political influence to favor the president and to basically change the way votes are counted and to tell the Secretary of State how to do their job.

Anne Milgram:

Thankfully, the Republican Secretary of State said, no. Said, “I’m doing my job. This is what I do.” And he reported publicly that pressure and that now, hopefully again calls the flag on the play and gets… the election is over now, but makes Graham and others stop and think. I mean, maybe this is wishful thinking, but stop and think before they try to do it again. But I do think it warrants an ethics inquiry, it warrants a conversation about what’s happened.

Anne Milgram:

But mostly it just is a sign to me of how the Republican party has coalesced around the president and his view of having won the election and I’m disappointed that they… It feels like they’re willing to do almost anything to make that the reality. To your point, they have a narrative in their head and they want the facts to fit that narrative as opposed to the facts are what the facts are and then the conclusion comes from those facts.

Preet Bharara:

So ordinarily, if Donald Trump were playing properly and seeing the handwriting on the wall, we would be talking about all the moves being made during transition. Obviously, the Biden team is doing some things but they can’t do all the things that they would otherwise be doing because the president refuses to concede and refuses to make available resources, refuses to make available personnel on his team.

Preet Bharara:

The head of the GSA, Emily Murphy, refuses to make available funds and office space, so that’s a pretty substantial problem. The one thing, before we get to this sort of impasse of transition, the one announcement made that is not surprising is our friend and former podcast guest Ron Klain has been named to be the Chief of Staff for the incoming president. I don’t know if you know this, but Ron Klain has been the Chief of Staff to every vice president going back to John Adams. Did you know that?

Anne Milgram:

I did not know that. He looks very young.

Preet Bharara:

Not all of them.

Anne Milgram:

For Al Gore.

Preet Bharara:

But he was Chief of Staff to Al Gore. He was Chief of Staff to vice president Biden. He was Chief of Staff to Janet Reno. He’s basically a professional, super smart Chief of Staff, operational and legal expert. So I think right there, the nation should be, I don’t want to put too much on Ron’s considerable shoulders, but right there people should be calm and understand we have a different kind of person coming in. If you had a spectrum and on one side of the spectrum you had Ron Klain, basically at the other end of the spectrum you would have Reince Priebus.

Anne Milgram:

Yes, I think that’s right. The thing I would say about Ron Klain too is that, I mean, he’s an incredibly capable and smart person. He also oversaw the Ebola response and so I think that’s also going to be very helpful because he’ll be able to advise the president. And he has more experience in this space than a lot of others do and it just gave me a sense of real confidence.

Preet Bharara:

Let’s start with this one issue of Joe Biden being able to get security briefings. The president seems to have decided, I’m not going to read my president’s daily brief and I don’t want anybody else to read it either and it’s just sort of petulant and childish and immature. And I think it’s striking that even though most Republican senators refuse to call it for Biden out of fear of Trump’s base or some other reason, on the issue of whether or not Biden should be receiving intelligence briefings lots and lots of Republican senators are sort of breaking ranks with the president on that which tells you how big a deal it is when usually they just sort of march and lockstep.

Preet Bharara:

Ryan Goodman notes in a tweet that there’s a clear bipartisan majority in the Senate saying that Biden should be getting intelligence briefings, they include: Lindsay Graham, Chuck Grassley, Rob Portman, Mitt Romney, Lisa Murkowski, Susan Collins, Marco Rubio, James Lankford, John Thune, Pat Toomey, Mike Rounds, Ben Sasse, John Cornyn, Ted Cruz. Some of these people are vocal supporters of the president.

Preet Bharara:

James Lankford said that if we get to a few days from now he’s going to step in, I think he’s backed off on that. But when you have that group of senators on the Republican side who normally do whatever the president tells them to do where they keep their mouth shut and steer clear of the president’s crazy tweeting, when they’re all saying for the safety and security of our country Joe Biden should be getting intelligence briefings that means something. Biden by the way has had to say, “Well, at least my running mate still sits on the intelligence committee, so she gets briefings.” That should not be sufficient.

Anne Milgram:

I agree. Lankford, it was reported that he did talk to the GSA, which has refused to certify the election for Biden even though in years past they’ve done so. And right now, I mean I think it’s fair to describe all the existing litigation that the president has as either frivolous or litigation that even if it were successful, and there’s absolutely zero reason to think that it would be, it will never impact the outcome of the election, so GSA should be giving that certification to the Biden campaign.

Anne Milgram:

But the bigger point I think is this, the president’s daily brief and the COVID-19 brief are central. And the idea that you would not give them to the president elect when you have basically just a little over two months until he takes office and has to get up to speed and run the country on day one, during what I would describe as the greatest natural sort of crisis in my lifetime in the United States government. I mean, people will die because of it and it’s irresponsible.

Anne Milgram:

And so president Trump he can litigate all he wants. I mean my view is, fine, litigate that’s your right you’re an American citizen. Go to the courts, let the courts have their say. But you have to understand that there’s no reason for the president elect, who has now been granted in the current election standing 306 electors, to not get those briefings. And it really is, it looks like it’s designed to make Biden fail and no American should want the next president of the United States to fail.

Anne Milgram:

And frankly, look, I think you and I have both said repeatedly we wanted president Trump to succeed on the coronavirus and to do a good job. I mean, I’ve really been pulling for the country to have had a better response and I continue to and I think these kinds of things need to go beyond politics. But the idea that you wouldn’t give him those briefings and also just intelligence, so important for our national security.

Anne Milgram:

And so I think if anything does go wrong, this sits squarely in the president’s lap right now because it’s just irresponsible at this point. And I take a very strong stand on this because it’s one thing for the president to have his petulant moments and to sort of have this problem except in reality that’s one thing, it’s another thing to imperil the sort of government and the safety of the American public because of it.

Preet Bharara:

Look, it seems like the president doesn’t work anymore; he golfs, he tweets and he sulks.

Anne Milgram:

I think a lot of people would like that job.

Preet Bharara:

Yeah, although at some point you need to meet the responsibility. And so separate from the issue of getting briefings on the coronavirus, we now have two credible viable vaccines. As the government points out, the vaccine doesn’t save anyone’s life a vaccination does. So these things have to be produced, they have to be distributed, they have to be administered and that’s a plan that requires a little bit of foresight and forethought and for there to be no coordination between the incoming president and the president who currently is presiding or at least supposed to be presiding spells disaster for the efficient distribution of these vaccines.

Preet Bharara:

And what I don’t get about Donald Trump, I guess he doesn’t care about his legacy at all if he can’t remain in the White House, but his inaction and failure to coordinate over the next number of weeks is going to be blamed I think credibly come January 20th when vaccinations are slow. It doesn’t make any sense from that… All he does is claims credit for the vaccines because they seem to have been manufactured under his watch or while he was the president, and he’s satisfied with just tweeting out that gloat as opposed to doing anything about it.

Anne Milgram:

We should take a moment and just I think applaud the scientists that have created these two vaccines, the Pfizer and the Moderna, both of which are reported to be more than 90% accurate. And you’re right, there’s a long way to go, it’s vaccinations that matter. But it’s fantastic news and I think really gives sort of both hope and a sense that we’re getting through this and we will get through it and that there is an end in sight. But yeah, I agree.

Anne Milgram:

And I think that the appeal to the president’s desire to have a strong legacy, it hasn’t worked yet but it feels to me that it might work down the road that there’s a way in which at some point the president has to look around him or people around him have to look around and say, “This is now a mockery of what it needs to be and there’s just zero path and you have to step aside and that’s for your own good, for your own legacy.” And maybe that’s the way that this gets done. But either way, I mean I still remain of the view that this is a bit of the Donald Trump show. It’s a really unfortunate show because I think you saw the president said there were going to be millions of people in DC last weekend, there weren’t there were probably thousands.

Anne Milgram:

But you still see thousands of people who came out the Million MAGA March they called it, who are supporting the president and who really believe they’ve got this whole tagline, Stop the Steal, that the election was stolen and it’s really bad for democracy. And so I think that there are consequences to this but still I keep it in the back of my mind, Preet, that on January 20th Joe Biden will be the President of the United States and I think that’s an important point. And that’s a good thing coming into the virus vaccinations and all of these really critical months ahead.

Preet Bharara:

So the other thing that happens usually in transition is the president who’s coming into office begins to name important people to various positions, we have Ron Klain. But then there’s a whole slew of folks who are political appointees, most notably cabinet officials that need Senate approval. For a lot of folks, the assumption was that if we were in a universe in which Biden won the presidency, the Democrats would also have taken back the Senate which makes the issue of who gets to be in what position a bit simpler.

Preet Bharara:

Assuming the Democrats generally will vote in lockstep and give a lot of deference to the incoming democratic president, you could quickly confirm the major cabinet level posts and even sub-cabinet level posts reliably being able to foresee that they’ll get confirmed. Now, you have Mitch McConnell in a very good position to remain a majority leader. We have these two runoffs in Georgia and I’m hoping that they go the Democratic way, because I think to get anything done and to get a lot of reforms that the country needs, you need a Democratic Senate. But assume we don’t get a Democratic Senate, Mitch McConnell will be able to decide who gets through and who doesn’t, who gets a vote and who doesn’t, if he can keep his entire caucus in line.

Preet Bharara:

It also may be true that if the margin is 51 to 49, 51 Republicans to 49 Democrats, on any particular nomination and on any particular bill statute, one Republican senator can threaten to switch sides and be a kingmaker; whether that person depending on the issue is Tim Scott or Lisa Murkowski or Susan Collins, who has returned to the Senate, that remains to be seen. But it is going to be an obstacle particularly with respect to potential nominees that Biden would have named who are somewhat controversial or otherwise not liked by the Trump base that it seems Republican senators still care about not offending.

Preet Bharara:

So some very, very good people who are persona non grata on the Republican side, depending on how much hardball Mitch McConnell wants to play and he would likely be in a position to play it, he can stop them. So I’m going to pause there and see what you think about that and then we can talk about some sort of technical rules relating to how people can fill in for open positions when Trump people leave, what the Federal Vacancies Reform Act is because you’re going to be hearing a lot about that in the coming weeks and you should have a basic understanding of what the limitations are for Joe Biden to name for example the Secretary of State or Secretary of Defense, if McConnell and the Republicans don’t want to play along.

Anne Milgram:

I think these are really important questions. And just to remind folks, there are 22 cabinet positions and so those are the heads of the federal agencies like the Treasury Department, the Justice Department. But over the entire Executive branch of government, I think there’s around 1,200 positions that are political appointments where the president nominates someone and the Senate has to confirm them. So that is a lot of positions that the Senate needs to confirm. There’s also another sort of 4,000 government positions that Joe Biden will have to fill in the Executive branch that are not subject to Senate confirmation.

Anne Milgram:

But again, over 1,000 are and the most, most important are those sort of like 22 cabinet level positions. So what does it mean? Let’s assume McConnell retains the Senate. I agree with you, I think it’s important for the Democrats if they can gain control of the Senate. I think it’s important both for the ability to get Senate confirmations for these key Biden positions also, and we can talk about this more another day for judges. I mean, one of the things that president Trump and Mitch McConnell have done is they’ve really just they took all the vacancies, they held a bunch of Obama vacancies until Trump became president. They filled those.

Anne Milgram:

They filled every single one of Trump’s judicial vacancies. They were in session yesterday to try to confirm additional federal judges who have been nominated by President Trump. And so there’s going to be this fascinating thing if McConnell retains, the Republicans retain control of the Senate. It will be interesting to see, because I think the end result is that you end up with more moderate leaders in government. You end up with more moderate cabinet heads.

Preet Bharara:

Yeah, because you to get them confirmed.

Anne Milgram:

Yeah, and that’s just a political practical thing.

Preet Bharara:

But their maybe some people that they’re going to fight about, because sometimes the fight is good. If you could think you peel off one or one or two folks, maybe something he needs to do for the base.

Anne Milgram:

Here’s my question for you Preet, as a rule, a new president… The deference of the president goes down over that four-year period, so every day that goes on there’s less and less sort of deference in the Senate to the president’s wishes. But as a rule, presidents usually get their first Secretary of State, their first attorney general, their first Head of the Department of Defense. Not always, if there’s a problem with vetting and they’re things that are significant that weren’t uncovered before, but as a rule as long as there’s no sort of skeletons or problems, the sort of substance of that person usually there’s deference. Do you think that will happen here?

Preet Bharara:

I don’t know. I think that the time for honeymoons and the time for deference have passed because they’re just very polarized. I don’t want to name names and some of these people you and I know and I don’t want to handicap particular people’s chances because some of them are friends of mine and yours, but if Joe Biden wants to pick someone, let’s say person X, to be Secretary of State and that’s a very qualified person and would do well on the job and Democrats would unanimously support such a person and maybe in different circumstance Republicans would support such a person.

Preet Bharara:

But for whatever reason something in that person’s past policy history is complete anathema to the MAGA crowd, I think Donald Trump on the sidelines, whether he’s a Newsmax or OANN or Fox or whatever, is not going to lead a crusade publicly as the ex-president and potentially future candidate for president in 2024 against that nominee. And in the face of that, what’s Marco Rubio going to do? What’s Ted Cruz going to do? What are these people going to do?

Anne Milgram:

Even relatedly, how much political capital would the Biden presidency be willing to expend?

Preet Bharara:

Yeah, you want to get stuff done.

Anne Milgram:

Because you’re right, if there’s a campaign and you want to get stuff done, I mean, at some point you have to make calculations that don’t get you into sort of a ground war over… Even though it might be your first-choice candidate, you might take your second because that person can get through and do a good job.

Preet Bharara:

Joe Biden has also signaled to the distress of some people on the progressive side that he’s thinking about bipartisan appointments to the cabinet, people like John Kasich and others, which probably the likelihood of that has gone up given what’s likely going on in the Senate. The weird thing is, he’s going to want to make moves on all these cabinet positions in advance of January 5th because the runoff is January 5th. But you want to make moves before that time, but you don’t want to tie your hands behind your back in anticipation of a Republican Senate when there was some chance, maybe not a large chance, but some chance the Senate goes back to being Democratic and you’ve picked someone who’s more easy to confirm but not your perfect first choice. It’s a complicated game of chess at this moment.

Preet Bharara:

Assuming that he’s not able to get people in to these cabinet positions, we should just do a quick overview of what options he has outside of Senate confirmation. Obviously, the appointments clause of the constitution is supposed to be a check. So there’s certain positions high level officers in the US government, not just judges but high level officers in the Executive branch, who can’t be installed into their positions without the advice and consent of the Senate.

Preet Bharara:

Now, there are various end runs you can do around that and certain laws including what’s called the Federal Vacancies Reform Act passed in 1998 was designed to make sure that presidents couldn’t sort of go around the appointments clause and if they wanted to appoint, like president Trump couldn’t appoint Roger Stone to be Secretary of Defense, you just can’t sort of reach into the citizenry and without advice and consent of the Senate put someone in.

Preet Bharara:

So if there is a vacancy, and there are a number of vacancies and there’ll be more when Trump leaves, if there’s a vacancy at the top of a cabinet agency the president basically has three options. You can appoint the number two, the first assistant, so that the succession is clear and that’s not anything to raise your eyebrows about. You can find from some other agency someone who has been Senate confirmed, so someone maybe from the Department of State who is Senate confirmed, you can move that person in the kind of musical chairs to be the Secretary of Defense. The theory being that the Senate has at least looked at that person’s credentials and approved them for something.

Preet Bharara:

Or third, you can take somebody who is in the agency in question who has been on duty for at least 90 days of the previous 365 days and elevate that person and we’ve seen Trump do this on a few occasions. The problem for Biden is going to be, the day he walks into office everybody there is a Trump person. All the number two folks and all the first assistants are Trump people, so to elevate that person doesn’t help. Anybody who’s been Senate confirmed in another agency in all likelihood, is a Trump person.

Preet Bharara:

In talking to some people who focus on these issues my understanding is, what Biden can do is, when he comes into office, he can make appointments at a lower level and then after the requisite number of days pass then that person can be elevated to the position of acting in that agency. But there’s going to be a period of time, again, as I understand and it’s complicated and not everyone has a full understanding of how this works in practice, there’s going to be a period of time before he has people at the heads of these agencies in the absence of Senate confirmation.

Preet Bharara:

Remember, Sally Yates was the attorney general in the United States for a number of days into the Trump administration. He did not have his own attorney general then and then she got fired and then Sessions was appointed. But usually, it’s the case that there is some continuity and there’s good faith on the part of the outgoing cabinet heads understanding that their time is limited, understanding that a new person is coming in and understanding that they owe deference to the new president and the new president’s policies. I don’t know if that’s going to happen this time.

Anne Milgram:

Well, especially if you think about Biden having to wait 90 days. Putting somebody in the agency at a lower level and then having to 90 days to put them in position, that’s a long time. The end point I think is that for people who are saying, “Well, Biden can just put people into position like Trump has done.” The answer is yes, but it’s not quite as simple as that and it will take time to get people who are Senate confirmed, who are second in command, who have been within agencies for at least 90 days and so it’s going to be significant hurdles.

Anne Milgram:

And really, I think when you talk about government, one of the things that President Trump has done is he has really used the Executive branch. So he has really turned the agencies in the direction he wants and a lot of that is getting rid of existing regulations and just really transforming some of the core work of those agencies.

Anne Milgram:

And so it’s going to be a huge priority for president elect Biden when he comes into office as president, to both get people Senate confirmed at the top of those agencies and to get the staff in place to really do the work of the Executive branch that he wants to do.

Anne Milgram:

It’s also a puzzle, right Preet? So they’re going to have a lot of different slots to fill and depending on their ability to fill one position that may impact other positions as well and sort of timing and whether somebody is on the progressive wing or in the moderate wing of the party, I mean there’s going to be a lot to talk about as the story unfolds.

Preet Bharara:

So Anne, we had so much to talk about with respect to transition, we’re going to talk more about the Affordable Care Act and that Supreme Court case that was argued last week. Many observers think based on the oral arguments there’s reason to believe that the ACA will not be struck down, we’ll talk about that more in future weeks. But before we go, I thought we would talk about something that was at least a big deal in legal circles quickly. And that’s Supreme Court Justice Sam Alito gave a speech to the Federalist Society that has raised a lot of eyebrows on the part of folks, because it was perceived to be a very political speech. I know you and I texted about it the day after it happened. What did you make of the speech and why do you think it was controversial?

Anne Milgram:

I mean I was so surprised by it. And look, I mean my view is that Supreme Court Justices should not be political. They’re obviously appointed by the President of the United States and they tend to have fidelity to one political party or the other. But the idea with the Supreme court is, it’s the highest court in the land and it’s supposed to be nonpartisan.

Anne Milgram:

And so Justice Alito even speaking at a Federalist Society, which it’s a advocacy organization for conservative views but it’s a very partisan organization. And I’ve said this to you as well and I think it’s worth saying, I didn’t agree with Justice Ginsburg, rest in peace, who I think is a legal icon and champion. I didn’t agree with her publicly criticizing President Trump, I didn’t think she should do it. He’s the head of the Executive.

Preet Bharara:

Well, before he was president.

Anne Milgram:

Before he was president, right?

Preet Bharara:

Yeah.

Anne Milgram:

And he became president, he had cases that were in front of the Supreme Court and I think it just it degrades from the court. And this speech Preet, I mean it was, he railed against COVID-19 restrictions, the Supreme Court decisions and LGBTQ cases, court packing, talking about sort of the Washington Post referred to it as the persecution of cultural conservatives. I mean, would you have given a speech like that? Would you even give a speech like that today and you’re not a Supreme Court Justice?

Preet Bharara:

Well, look, there’s different rules for different people. I was pretty outspoken when I was US attorney, I wrote about this in my book. I probably went outside of my lane a little bit, as I’m pretty honest about. But Supreme Court Justice is different, that branch is different. And it’s very interesting when you see with respect to a Supreme Court confirmation hearing, we saw it recently with Amy Coney Barrett and you see it throughout recent history. Nominees are so careful and they’re kind of up on their high horse a little bit to say, “I can’t get political. I can’t get partisan. I can’t give you my views on policy. I can’t give you my views on this, that or the other, because it may cause me to be giving a hint or a preview of how I decide a case coming before the court.”

Preet Bharara:

Against that backdrop, how it can be okay for a Justice like Alito, having also subscribed to that view during his confirmation hearing that I attended every day of when I was working in the Senate. How he can now take the position, even though there’s still are cases that are going to come before him on all of these issues, it’s now okay to be strident and political and give your policy views sometimes going way out of your lane, I don’t see how that’s okay. It struck me. And I don’t know what it gains him or gains the bench and certainly I don’t know what it gains the particular bench, the Supreme Court of the United States. It seemed to me a grievance laden sort of tirade in which he was getting some stuff off his chest, culturally, socially.

Preet Bharara:

He’s mad that the country is going forward. He’s mad that the country is progressing and becoming less biased in various ways and becoming more open to gay marriage and he’s mad about that. And he doesn’t like the fact, and he says towards this effect, he doesn’t like the fact that if you have a particular intransigence about gay marriage that some people will think you’re a bigot. Well, people are allowed to have their views. Meanwhile, he’s saying throughout the speech, and this is a feature of a lot of folks in public discourse who love to be aggrieved all the time.

Preet Bharara:

At the very moment, they’re saying that their views are being silenced, at the very moment they’re saying that their speech is being chilled. They’re giving a speech to a huge audience, not in this case but in other cases sometimes paid. So always view with some skepticism, whether they’re a Supreme Court Justice or not, folks who are screaming from huge platforms whether Twitter or Fox News or somewhere else that their views aren’t being heard and their views are being chilled and their speech is being regulated. It’s not. It’s silly and it should stop.

Anne Milgram:

And also, I mean if you want your speech, if you want to go out and give the kind of speech that Alito gave, he could certainly do that, he just shouldn’t do it as a sitting member of the Supreme Court. And there’s nothing to stop him from resigning and becoming the president of the Federalist Society or running for political office, but I did not like that he was under cutting the court. I was stunned by it. I didn’t expect it of him. I was also sitting there sort of wondering how John Roberts, the Chief Justice of the Supreme Court feels about it and I’m pretty sure he doesn’t feel good about it. It’s not the kind of thing he would ever do or condone. It’s bad for all of us and it’s bad for the court.

Preet Bharara:

The final word I’ll say is, I’m not against Supreme Court Justices giving speeches and talking. We had more than one Supreme Court Justice come and address the US attorney’s office when I led the Southern District. And I think books and articles, like those written by Justice Scalia and others, offer a window and an insight into their jurisprudential thinking and I think that’s good. And people can have different standards for what’s political or not. I guess what I would say about Alito and the speech is, he knew it was going to be controversial. He knew it was going to be provocative. He was intentionally being incendiary. He’s a very smart guy. And he wanted to make these points in the particular way that he made them. And he knew it was going to make people chatter. And he knew it was going to cause people to say, “Maybe that’s inappropriate.”

Preet Bharara:

And one test you can apply to yourself if you’re a Justice like that is, if it’s going to have that effect, I know it’s going to have that effect, maybe the better part of discretion is not to give that speech in that way with that language. And you can’t enforce that and Supreme Court Justices can do whatever they want to do, but it’s one way of thinking about it. It’s the way that I began to think about it when I was US attorney in a much, much, much different role where there’s a clear public speaking. I think obligation, other people would say option, but he knew what he was doing and he did it anyway. So Anne here we are, two year anniversary.

Anne Milgram:

Yes.

Preet Bharara:

And I just want to say a couple of words of thanks and express gratitude. I’m grateful to have the best co-host in the world. I’m grateful to have the best team, the CAFE team, in the world and the best audience in the world. I mean, the folks who listen every week, who write in, who offer their questions, it’s just, to borrow word, it’s extraordinary and it makes doing this gratifying. So I thank you.

Anne Milgram:

I Thank you. And thanks to the great team and the listeners, it’s been such joy. And so I think for anyone who’s hung in with us for the last two years and this whole episode as well, we have a little bit of a treat.

Preet Bharara:

We don’t take ourselves seriously, we take the issue seriously and God knows in two years there have been a lot of serious issues including issues of liberty and life and death. But you can’t get through life unless you can laugh a little bit, and I’m fortunate enough to be doing this podcast with my dear friend with whom I’ve shared a lot of laughs and sometimes we get to share them with you. So as a reminder that even in terrible times, even in dark times, it’s important to have a sense of humor, it’s important to laugh, we have for you… Do you call it a montage if it’s audio?

Anne Milgram:

I don’t know. Clicks?

Preet Bharara:

Is a montage necessarily video?

Anne Milgram:

It’s a highlight reel? I don’t know.

Preet Bharara:

I don’t know. Anyway, we’re going to go out with a audio montage of some of the lighter moments over the last two years of the CAFE Insider. From CAFE, welcome to CAFE Insider. I’m Preet Bharara.

Anne Milgram:

And I’m Anne Milgram.

Preet Bharara:

Hi, Anne.

Anne Milgram:

Hi.

Preet Bharara:

Welcome to the first episode.

Anne Milgram:

It’s great to be here. Preet, I have a very important question that came to us. Where did you guys meet and was it friendship at first sight?

Preet Bharara:

We met at a bar.

Anne Milgram:

That bar right near the-

Preet Bharara:

You drink a lot.

Anne Milgram:

Objection.

Preet Bharara:

If I remember correctly. And here we are. That was 15 years ago.

Anne Milgram:

Let’s call this the love section.

Preet Bharara:

The love section.

Anne Milgram:

Let’s jazz it up a little. What did you think of Rod Rosenstein’s love letter to Donald Trump, aka his resignation letter?

Preet Bharara:

So it was ludicrous in some ways, but I think the particular line that you’re pointing to is you have it in front of you.

Anne Milgram:

I do. “I am grateful to you for the opportunity to serve, for the courtesy and-”

Preet Bharara:

You can make it through, you can make it… Don’t be snitty. This is how difficult it is for a seasoned prosecutor and podcaster, Anne Milgram, Esquire, cannot read a line from the resignation… the formal, publicly released resignation letter by the Deputy Attorney General of the United States. She cannot read one of the lines without cracking up.

Anne Milgram:

I can’t look at you. “I am grateful to you for the opportunity to serve, for the courtesy and humor you…”

Preet Bharara:

You’ve never laughed this hard at any joke I’ve ever told you, and I’ve known you for 15 years.

Anne Milgram:

Let’s take a hypothetical, a penguin is stolen out of the Central Park Zoo to use-

Preet Bharara:

That’s your hypothetical.

Anne Milgram:

To use something people are commuting home from-

Preet Bharara:

Did that happen?

Anne Milgram:

No. The Central Park Zoo is going to be mad at me. I use it all the time in my class.

Preet Bharara:

Did you prosecute a penguin theft?

Anne Milgram:

No, I use it all the time in my class. Maybe the penguin hypothetical isn’t the right one.

Preet Bharara:

No. Fine, let’s go with it.

Anne Milgram:

So one thing that happened this week is a journalist Nicole Najafi came out with, what would it be like to go on a first date with all of the presidential candidates? So this is what Nicole Najafi imagines a first date with Bernie Sanders would be like. “He picks you up at your apartment and takes you on the subway to Grey’s Papaya.” Which is a famous New York hot dog restaurant, for anyone who doesn’t know and they basically sell hot dogs and papaya juice.

Preet Bharara:

Hot dog restaurant.

Anne Milgram:

I think restaurant may be overstating it.

Preet Bharara:

The true definition of a restaurant. What kind of dates have you been on? We’re going to ask Nicole Najafi to do one about Anne. Hey, welcome to this bodega restaurant. For those of you who don’t know outside of New York, Gray’s Papaya is a noted hot dog restaurant, it’s a hotdog bistro of sorts.

Anne Milgram:

Is it like two dollars for a dog and a papaya juice or something? It could be a dollar.

Preet Bharara:

There’s not a restaurant make.

Anne Milgram:

Yeah, there’s no seating. Okay. We might have a little bit of a laughing challenge from Schweinfurt, Germany. You’re ready?

Preet Bharara:

I’m ready.

Anne Milgram:

So two weeks ago, 60 people were evacuated-

Preet Bharara:

You’re so good at this, I’m laughing already.

Anne Milgram:

Are you on pins and needles?

Preet Bharara:

Well, but I know what you’re going to say.

Anne Milgram:

You know where we’re going?

Preet Bharara:

You’re not surprising me, so I think it’s funny already.

Anne Milgram:

So two weeks ago, 60 people were evacuated from a post office which by the way, I don’t know if you had the same reaction I did, but I was like, “Why are people actually physically in post offices today?” But anyway.

Preet Bharara:

Can you say the name of the town again?

Anne Milgram:

Schweinfurt.

Preet Bharara:

Okay.

Anne Milgram:

In Germany. So, 60 people were evacuated from a post office there, after the post office received a suspicious package that postal workers believed was emitting poisonous gas.

Preet Bharara:

So, this was terrorism? People thought it was terrorism.

Anne Milgram:

That’s what they thought, right?

Preet Bharara:

Right.

Anne Milgram:

So immediately they call emergency services. The smell was so bad that six of the postal workers were taken to the hospital and they were treated for nausea. There were six ambulances, five first responder cars, two emergency vehicles and three different fire departments that all responded to the call. Then, they do what they do in these cases. They think it could be a bomb, it could be anything. They probably suited up in their hazmat gear and then they open the package. And when they opened it, they discovered that the odor was not coming from a gas canister.

Preet Bharara:

Wait a minute, so it was not terrorism. That’s why we’re laughing. Obviously, we knew that it wasn’t.

Anne Milgram:

It was not terrorism. The source of the smell was four Thai durian fruits sent as a gift to a 50-year-old Schweinfurt resident by his friend in Nuremberg. Often referred to as the king of fruit, durian smell and taste, divide opinion. It is supposed to be the stinkiest fruit in the world. I totally would try it.

Preet Bharara:

It’s funny how some people have described the durian fruit. For example, if people want to get a sense of what it tastes and smells like food writer, Richard Sterling apparently once described the odor as “Turpentine and onions garnished with a gym sock.”

Anne Milgram:

It’s so evocative.

Preet Bharara:

And the late Anthony Bourdain, who we miss dearly, said that after eating a durian fruit, “Your breath will smell as if you’ve been French kissing your dead grandmother.”

Anne Milgram:

Now, I just want to say, some people love it. Some people love it and some say its creamy texture is similar to that of a ‘cheesecake with a hint of almonds.’

Preet Bharara:

Whoa, that’s very different.

Anne Milgram:

It’s like I don’t know. What do they say like one man’s something is another man’s something else? I can’t remember.

Preet Bharara:

One man’s gym sock is another man’s durian fruit.

Anne Milgram:

Is another man’s cheesecake.

Preet Bharara:

Yeah, I guess.

Anne Milgram:

The end.

Preet Bharara:

So we’ll be back next Tuesday. Send us your questions to [email protected]

Anne Milgram:

And we’ll do our best to answer them.

Preet Bharara:

Thanks for listening.

Anne Milgram:

Thank you.

Preet Bharara:

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