• Transcript
  • Show Notes

In this episode of CAFE Insider, “Turn the Page,” Preet and Anne break down the GSA Administrator’s letter informing President-elect Biden that the formal presidential transition process can begin, Biden’s first round of cabinet selections, the ongoing election litigation, the Trump campaign’s disavowal of controversial attorney Sidney Powell, and the extent of President Trump’s pardon powers. 

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

BIDEN TRANSITION

GSA letter to Biden stating that transition can formally begin, 11/23/20

“President-Elect Biden Announces Key Members of Foreign Policy and National Security Team,” Biden-Harris transition statement, 11/23/20

“Janet Yellen, Biden’s Expected Treasury Pick, Has Broken More Than Gender Barriers,” NYT, 11/23/20

“Michèle Flournoy is ready for the spotlight,” Vox, 11/23/20

Deputy Attorney General Rod Rosenstein resignation letter, 4/29/19

Alejandro Mayorkas tweet, 11/23/20

Sam Vinograd tweets, 11/23/20

Preet Bharara tweet, 11/20/20

PRESIDENTIAL ELECTION

“Biden certified as winner of Pennsylvania presidential vote,” AP, 11/24/20

“More GOP senators back transition as GSA recognizes Biden’s win,” CNN, 11/23/20

“Michigan certifies its election results, making Biden’s win official and rebuffing Trump,” NYT, 11/23/20

“Trump invites Michigan Republican leaders to meet him at White House as he escalates attempts to overturn election results,” WaPo, 11/19/20

ELECTION LITIGATION

Donald Trump for President, Inc. v. Kathy Boockvar, U.S. District Court, Middle District Pennsylvania, opinion, 11/21/20

Trump Campaign statement on Pennsylvania ruling, 11/21/20

Sen. Pat Toomey statement on Pennsylvania decision, 11/21/20 

“Trump’s bizarro-world ‘elite strike force’ legal challenge is about to implode,” Elie Honig op-ed, CNN, 11/23/20

“Fact-checking Giuliani and the Trump legal team’s wild, fact-free press conference,” CNN, 11/20/20

“Whatever It Is, It’s Probably Not Hair Dye,” NYT, 11/19/20

Steve Vladeck tweet, 11/23/20

Marc Elias tweet, 11/23/20

SIDNEY POWELL

Trump campaign statement on legal team, 11/22/20

“What We Know About Sidney Powell, the Lawyer Behind Wild Voting Conspiracy Theories,” NYT, 11/23/20

“Time for Sidney Powell to show us her evidence,” Tucker Carlson, Fox News, 11/20/20

TRUMP PARDONS

“Note From Elie: The Notorious RSB,” CAFE, 11/20/20

U.S. Constitution Article II, Section 2, Clause 1. Presidential pardon power

Department of Justice Office of Legal Counsel memo, 1974

Clemency Statistics, Department of Justice

Frequently Asked Questions, Department of Justice

“As Trump wrestles with defeat, pardons loom for allies — and himself,” CNN, 11/12/20

“There are three kinds of lame-duck pardons. A self-pardon isn’t one of them,” WaPo, 11/11/20

“Most Trump clemency grants bypass Justice Dept. and go to well-connected offenders,” WaPo, 2/3/20

Can President Trump Pardon Himself?

Trump is likely to pardon Flynn and Manafort. But what about himself?

After holding out for over two weeks, on Monday, GSA Administrator Emily Murphy informed President-elect Biden that the formal presidential transition process can begin. Preet and Anne break down the significance of this move, including the national security implications of Biden and his top advisers being allowed to receive classified intelligence briefings.

While President Trump accepted the decision of the GSA via Twitter, he vowed to continue to contest the results of the election despite his team’s failed litigation efforts in key battleground states. Preet and Anne discuss the outstanding election litigation and the team’s disavowal of attorney Sidney Powell after she was criticized for advancing election fraud conspiracy theories.

And, as Trump’s term nears its conclusion, there is heightened focus on who he may pardon. Likely candidates include former National Security Adviser Michael Flynn and former Trump campaign manager Paul Manafort. Also, Preet and Anne analyze whether Trump has the authority to pardon himself.

 

Preet Bharara:

Hey folks, we’re nearing the end of a very long year, very long. And I continue to be so gratified by the passion and engagement of our growing Cafe Insider community. Two years after launching the Cafe Insider membership, our team of hosts continues to make sense of the most important issues in politics, cybersecurity, national security, law and more. Now, we hope you’ll consider sharing Insider’s podcasts, columns and virtual events with your friends and family. For the next week, we’re offering the chance to give one year of Insider as a gift for just 29.99. That’s 29.99, more than 55% off the usual annual rate. Just go to cafe.com/gift and use the code gift during checkout. That’s cafe.com/gift and the code is gift. Thank you again for being a part of the Insider community. From Cafe, welcome to Cafe Insider. I’m Preet Bharara.

Anne Milgram:

And I am Anne Milgram,

Preet Bharara:

Anne Milgram, guess what day today is? Guess what today marks?

Anne Milgram:

Tuesday, November 24th.

Preet Bharara:

Yes, but with respect to the show.

Anne Milgram:

Oh, oh, oh.

Preet Bharara:

So last week was our two year anniversary.

Anne Milgram:

I thought that was a COVID quarantine question.

Preet Bharara:

No, no, no, no, no.

Anne Milgram:

Last week was our anniversary, but this to me is actually an even bigger week, it’s our centennial.

Preet Bharara:

Our 100th show.

Anne Milgram:

Our 100th show. I can’t even believe it.

Preet Bharara:

All right, so this week is also Thanksgiving.

Anne Milgram:

Yes. Are you ready?

Preet Bharara:

I’m sort of ready. It’s amazing to me how this has become a big political issue. So since I was trying to think back as there ever been a time on Thanksgiving, that I didn’t spend it with either my own parents or my wife’s family, since I was a child and I can’t think of any time that has been so, but this will be one of those times.

Anne Milgram:

Yeah, it’s going to be a first I think for a lot of families.

Preet Bharara:

Can we talk about what’s going on with the election? I don’t mean to giggle, but can we start off by saying-

Anne Milgram:

It’s been a wild ride. Yeah.

Preet Bharara:

So last week… So people may not appreciate Anne and I and the team, we speak throughout the week about what topics we might cover the following Tuesday and it’s kind of interesting over the last couple of years. Sometimes it’s the case that on Thursday we’ll be in a text chain and we’ll think we’re going to be talking about this thing that happened, that Trump did or said. And then by the time we get to Tuesday, the world has changed and new scandals have erupted. And the thing that we were talking about last Friday and actually also was reflected in last week’s show, was the degree to which Donald Trump’s sharp rhetoric and the crazy press conferences and things that Sidney Powell was saying and that this other lawyer, Jenna Ellis was saying, was causing people to be concerned. Could Trump really steal the election? And could he cause faithless electors to do extra wind?

Preet Bharara:

Could he cause the GSA throughout the entire transition period not to give funds and office space and resources to the Biden team? All these things were swirling around and people I think, were very concerned. And people like you and I, said at the end of the day it’ll all be fine. Now, we’ve all seen that it is going to be fine, even though there were a lot of rhetorical twists and turns along the way. Biden’s taking office on January 20th. Correct?

Anne Milgram:

I agree. I agree. And I think that even in the last couple of days, we’ve seen Michigan certify the election results, we’ve seen the TSA administrator, and we can talk more about this.

Preet Bharara:

Did you say TSA?

Anne Milgram:

Yes. TSA, that’s so funny.

Preet Bharara:

In Trumpian times, sometimes the agency’s changed their roles and sometimes it’s the transportation people who made the determination about transition. You’re probably thinking the Transition Services Administration.

Anne Milgram:

I’m thinking of the-

Preet Bharara:

That’s a yes.

Anne Milgram:

… General Services Administration. I’m thinking about the GSA.

Preet Bharara:

Should we disclose to people that we’ve had cocktails?

Anne Milgram:

But we haven’t. It’s 10:30 in the morning. I feel like-

Preet Bharara:

A little giddy, right?

Anne Milgram:

Yeah, I feel lighter. And I think it’s worth just saying we knew it was going to be okay. But then the events of the past two or three days have made it very clear that everything is is moving on the path needs to move on. The Biden administration now has access to transition resources, Biden made a lot of Cabinet picks yesterday that were announced. We’ll talk more about those too, but it feels like there’s momentum and that we’re moving toward a new presidential administration. And so I definitely feel relief. I want to still talk about the court cases, because they are largely done, but it’s still worth noting some of them. But yes, I feel different today than I’ve even felt the last couple of weeks since the election, even though I believed that Joe Biden would be the president on January 20th.

Preet Bharara:

Yeah, a lot to be thankful for this week, which is appropriate. So Emily Murphy, the embattled, although that’s being a little overly kind to her. She’s only embattled because she wasn’t doing her job. The head of the General Services Administration, she had been invoking on basically making an ascertainment that Biden was the apparent winner of the election. And so finally, last night, Monday evening, she sends a letter. What do you think of the letter by the way? I thought it was kind of snooty. Remember that word snooty?

Anne Milgram:

It was snooty. It was a classic letter also, because… Well, first of all, it was really defensive. It was too defensive. When you defend too much, you’re actually in some ways confirming the allegation. And the whole thing was, “Nobody’s influenced me in any way to withhold making the GSA decision,” whereas the President had literally just tweeted about her the day before saying, “Good job.”

Preet Bharara:

Yeah. Basically saying, “I’m letting you… I’m directing that you do so.”

Anne Milgram:

Yeah.

Preet Bharara:

And this is not clear. Do you feel like she was in recent days realizing that you had to pull the trigger, but she was waiting for some inflection point to give her some cover with respect to the president?

Anne Milgram:

I do. I think Michigan gave her the cover. But also, the point that’s worth making as well is that a number of Republicans began to call for her to certify. And I think the pressure was coming from both sides. And so I think it was very clear that she was appeasing the president at a very large cost. And so yeah. So I think Michigan just gave her the ability to say, “Oh, now I can do it.”

Preet Bharara:

Do you believe just being more specific about her representation? In the letter she says, as you pointed out, “Please know that I came to my decision independently, based on the law and available facts.” And then she says, “I was never directly or indirectly pressured by any executive branch official, including those who work at the White House or GSA with regard to the substance or timing of my decision. To be clear, I did not receive any direction to delay my determination.” Do you believe that?

Anne Milgram:

Do I believe that? No.

Preet Bharara:

I find that very, very, very hard-

Anne Milgram:

I don’t believe that.

Preet Bharara:

… to believe.

Anne Milgram:

I don’t believe it for a couple reasons. One is that she talks about precedent, but all the precedent, the prior instances where GSA certified transitions, they’ve all basically… The type of litigation that President Trump has been bringing has never stopped a transition from going forward before. So there’s not a lot of precedent in this obviously, there’s not a lot of prior cases or incidents where it happened, but she really doesn’t have any facts that she points to as a reason for her to withhold, and the natural course is to certify and move forward. And so just something changed the natural course. Look, we’re also talking about the president of the United States who invited two of the Michigan election canvassers to the White House to try to influence them to change the outcome of-

Preet Bharara:

And they don’t work for him.

Anne Milgram:

Exactly.

Preet Bharara:

Emily Murphy is in the executive branch and technically works for him.

Anne Milgram:

Yes. So any-

Preet Bharara:

He called me. He called me, remember?

Anne Milgram:

Yeah.

Preet Bharara:

This is a person who is not shy about telling executive branch officials that he wants their loyalty, or he wants them to bring cases or not bring cases. So this is a very hard thing for her to assert.

Anne Milgram:

I think it was a really bad idea on her part too, because it’s impossible to believe in my view. The president United States goes on national TV, says that the election results should not be certified, tweets out that he’s proud of her for not moving forward with the transition and she says there’s no pressure. You just can’t believe that. And so I think it was a mistake on her part. Also, for what it’s worth Preet, this strikes me and I would be curious to know what your view is. This strikes me as a one paragraph letter.

Preet Bharara:

Yeah.

Anne Milgram:

I am approving authorization to transition resources, you get almost seven million dollars, or a little over seven million dollars, you get access to space, please let us know if you need anything.

Preet Bharara:

I’m surprised it didn’t devolve into Rod Rosenstein resignation. I enjoy our casual strolls by the beach, where there’s such a wonderful sense of humor. I guess there’s always one explanation on the issue. And this comes up over and over again. Did Trump put the arm on somebody? And I think a lot of cases he has, but in other cases, the actor just knows because it’s abundantly clear. Because the psychology of Donald Trump is very clear that he wants somebody to do something or not do something. It was very clear from public statements that the President made, that he doesn’t want anybody to acknowledge that Joe Biden was the president elect. And you sometimes don’t have to get a call or pressure, because it’s just known. And if that’s the case, I don’t think you can properly call that an independent decision either. It’s still influenced by what the desires of the president are.

Anne Milgram:

Yeah. There’s also a way in which it was very clear that the executive branch at the White House was basically saying, “We are not acknowledging the Biden presidency.” So you’re right in saying if they said that, that is really giving… It’s not giving direct guidance to someone like Emily Murphy, but it’s giving guidance basically saying, “We’re not conceding this or acknowledging this.” That is a message. And that’s guidance that an executive branch official, particularly in an administration like this might follow, we should note also, there’s been a lot on Twitter about this. Sam Vinograd did a tweet basically just going through all the things that can happen now that transition has been approved, but the agency review teams can go in and that every single executive branch department will have a team that goes in and wants to understand what are the current policies, what’s the staffing levels, how much money do they have? What are their priorities? They can get access to classified information within the transition, the State Department will connect Joe Biden with foreign leaders, they’ll finalize clearances and personnel for people who are coming in and then all the COVID stuff.

Anne Milgram:

They’ll start meeting with Fauci and the COVID-19 Task Force, they’ll get the President’s daily brief, they’ll get the COVID daily brief. A lot of really important things will come out of this. And even though I felt confident that it would happen at some point, I think it’s a really good thing that it’s happened now. There’re still a couple of months until the new president is sworn in. And so-

Preet Bharara:

Yeah. There was some time, but not too much time.

Anne Milgram:

Agreed.

Preet Bharara:

Yeah. Look, there was some time last, but I think there’s still plenty of time for the Biden team to do the things they need to do. What people need to appreciate is, there’re two categories of thing that are going on with respect to transition. One is personnel and we’ll talk about that in a second. Putting together the teams that are going to lead you to these agencies, but then separate from that, and often they’re quite separated and I think they are in the Biden’s scenario, you have a group of people who are not focused on who’s going to take these important jobs, but rather focus on policy and what the priorities are going to be and what continuity is going to be like and how they’re going to think about enacting policies that are consistent with what Joe Biden ran on, whether it’s climate responses, or criminal justice reform or whatever else. And then those two things end up merging when the administration takes shape and you have personnel and you have policy.

Preet Bharara:

But in order to know the things that need to be done, you have to know what’s going on now. And of course, the most important thing with respect to all of this is national security. So look, even though GSA, Emily Murphy wasn’t opening the spigot of money and resources, the Biden team didn’t really lose any time in naming a whole host of folks to lead agencies. Now we’re recording this in the 10:00 am hour on Tuesday, so by the time you hear it, there may be more appointments announced. But at the moment, he’s announced Janet Yellen, for treasury secretary, Tony Blinken for Secretary of State, Ale Mayorkas for Secretary of Homeland Security, Avril Haines for DNI, Jake Sullivan for National Security Adviser, Linda Thomas Greenfield for US ambassador to the UN, John kerry in special role as envoy for climate.

Preet Bharara:

And then there’s rumors all of this has not been announced that Secretary of Defense maybe Michele Flournoy. With respect to Janet Yellen, technically, it’s been reported pretty heavily, but she has not been actually formally announced by the Biden team. That could of course change by the time you hear this. Now, I know most of these people and pretty good, pretty terrific group, what do you think?

Anne Milgram:

Look, it’s a great group. And I don’t know them personally at all, I can say this, they are all… I read all their backgrounds and obviously, I’m familiar with a lot of them and a lot of their work. They’re all serious, thoughtful, career public servants in many instances, deeply experienced. One of the things I noted about these folks is that they’ve worked in government, they understand these systems. It basically felt like bringing the A team, so on day one they’ll be in a situation where they can handle anything that’s happening in the world, which is immense right now. COVID-19, the economy, there’re just so many issues happening. And so I think part of my feeling a little bit lighter and relieved today just knowing that there are experienced professionals who are going in.

Anne Milgram:

And look, Preet, you and I will will agree and disagree with them at different times, right? It’s not to say that they will be perfect and make every correct decision. But I have a lot of confidence that people who are going in respect government, respect government norms, they will make decisions on what they believe is best for people. So that just I felt really pleased to see this group of folks. And also, I would note that they’re in contrast to Donald Trump’s cabinet in so many ways. They have-

Preet Bharara:

Oh, a little bit.

Anne Milgram:

… extensive experience. They’re all battle tested, which I actually think is really important in today’s world, that they are people who’ve been deputy secretaries and they’ve been in… Janet Yellen was the head of the Federal Reserve. They’re people who’ve handled high pressure, policymaking and implementation jobs. And there aren’t that many people in the world who’ve done those things. They’re also incredibly diverse. And I think we should just note, it’s the first woman ever to be in the DNI. The lead candidate for the Department of Defense is a woman, Ale Mayorkas is a Cuban immigrant. He’ll be the first Latino to head DHS and the first immigrant to head DHS.

Preet Bharara:

What I found compelling to the point of being moving, is that given everything that’s been going on at DHS and how much of a mess things have been in the separations at the border, Ale Mayorkas in his statement thanking Joe Biden for the appointment, referenced the fact that he’s an immigrant and how that is going to be important and how he thinks about doing that job. When have you heard that before?

Anne Milgram:

Yes. I have not heard it before. And I thought it was really important. He’s also a career law enforcement professional. And so again, he’s worked at DHS, he’s led law enforcement teams, he’s got a really strong background in immigration and in enforcement. He also comes in as an immigrant and as someone who is really thoughtful on these matters. And it was a powerful statement that he made. And look, what’s fantastic about all these folks is that they’re all incredibly, incredibly, incredibly qualified. They also happen to be… It will be I think, the most diverse cabinet or one of the most diverse cabinets after Obama in history.

Preet Bharara:

Can I say one more thing about them?

Anne Milgram:

Yeah.

Preet Bharara:

I do know a number of them personally. I know Tony, Ale, Avril a little bit, Jake Sullivan, I’ve known him for a long time. They’re really nice people, they’re not jerks. And you know what? Maybe that doesn’t get talked about so much and people are used to folks who are in the top jobs having a tough management style and my way or the highway, and we’ve seen some of that with some of the folks in Donald Trump’s administration. They’re nice people, not just qualified, not just diverse. And that’s not necessarily a small thing. It’s not a small thing when it comes to morale in the department. Bill Barr, the way he denigrate the people in the Justice Department, I don’t know if that affects the policies of the department so much, but it affects morale. And it’s a mark of a certain kind of leadership. And none of these people have that kind of attitude, as far as my experience goes. And I think that’s important too.

Anne Milgram:

Yeah, just also even beyond Bill Barr, President Trump, he talks a lot about a deep state, he’s vilified the career men and women who really make up the backbones of the federal government departments. And so I think that a lot of career government employees are probably already breathing a sigh of relief, I think that seeing this list of names and who these folks are that will be coming in, should make them feel even better about the fact that their work and their service will be appreciated and that there’s going to be a very different tone towards government employees. The men and women who do the work right now, the federal government has got to come up with what is the plan for vaccine distribution? How is it going to be done? There is really, really important work to be done.

Anne Milgram:

And so having these folks come in with experience and being ready to run the department and having people in the departments eager to have that kind of leadership, I think it makes a difference in government. I don’t know if you agree, but having run a state department, I can say that morale matters and culture matters. And basically having folks willing to work really hard to get where you’re going, leadership matters. And so I’m just really pleased by all this.

Preet Bharara:

So we should probably go back a few days and talk about how we got to this point where Michigan certified and where there’s been a shift in opinion and approached by even allies of the President with respect to the loss. [inaudible 00:18:22] the President, I tweeted multiple times, “How many times does Joe Biden have to win Georgia? How many times does Trump have to lose Michigan and Pennsylvania?” But some of these lawsuits, we should maybe spend a little bit of time I know you feel strongly about them. Why they went south and why people who were somewhat schooled in law didn’t think they were going to go anywhere. You want to talk about the Pennsylvania case? You want to talk about Sidney Powell?

Anne Milgram:

Yeah. Let’s start there. And I would also note, Preet, that in response to your tweet about how many times was Joe Biden going to win Georgia, I think someone tweeted back to you, “Are you tired of winning?” Which was a…

Preet Bharara:

Most common response was all the times, all the times and so many other suggestions. Hey, every time Joe Biden wins Georgia, should he get that number of electoral votes again?

Anne Milgram:

Yeah. It does feel and I think-

Preet Bharara:

It adds up.

Anne Milgram:

Look, one thing about this, this is kind of a civics lesson we’re watching unfold. And one of the things that’s happened and just to talk quickly about the litigation, the President has spent a lot of time talking about litigation. And I think Mark Elias, who’s one of the campaign lawyers for the Biden team has basically said… If you’re keeping score, the Trump campaign has been successful in two lawsuits and they were smaller lawsuits in Pennsylvania, they have lost 34 lawsuits. And so I think it’s important to keep that in context and also just to know what happened over the past weekend, which is that in the background as the President decided his legal team, the sort of team that was initially litigating the cases wasn’t doing well. So he brought in Rudy Giuliani, as you and I talked about last week. And Giuliani, he does this press conference with Jenna Ellis, who’s one of the president’s lawyers over last week, they also had Sidney Powell who as we’ve talked about before, as represented by Michael Flynn, as he’s moved to have the case against him dismissed. And so they call themselves the elite squad, the-

Preet Bharara:

Strike force.

Anne Milgram:

The elite strike force. That’s right. And-

Preet Bharara:

Or is it space force? Was it space force or the strike force?

Anne Milgram:

Strike force. And they go out and they give themselves this name and they use all the talking points and they start filing cases. So, Giuliani walks in and they basically are saying, “Don’t count up to seven million votes.” And they’re focused on a smaller number of votes, but it’s hundreds of thousands of votes. And they’re really saying that there were votes that were illegally cast by Pennsylvanians. And so they go into court and they make this argument and they don’t plead election fraud. I think it’s worth noting that, they do plead things related to equal protection of the laws, are people being treated equally from one… If you vote in this neighborhood versus this other neighborhood, are you being treated equally? And that brings them to the judge and to this hearing where it becomes very clear very quickly that Rudy Giuliani is there and they struggle to be able to answer any of the judges questions, they struggle to answer the most basic questions about the law. And it’s basically because as we’ve talked about, it’s a political lawsuit. It is not a lawsuit based in fact.

Anne Milgram:

And so, Judge Brann who the Trump campaign came out and called him an Obama appointed judge and technically he was appointed by President Obama. He is a lifelong conservative, he was a member of the NRA and the Federalist Society, he is highly respected in the state as a fair judge. Judge Brann comes out and says, “In other words, plaintiffs ask this court to disenfranchise almost seven million voters. This court has been unable to find any case in which the plaintiff has sought such a drastic remedy in the context of an election, in terms of the sheer volume of votes asked to be invalidated. One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption, such that this court would have no option but to regrettably grant the proposed injunctive relief despite the impact it would have on such a large group of citizens. That has not happened. Instead, this Court has been presented with strain legal arguments without merit and speculative accusations unpled in the operative complaint and unsupported by evidence.”

Preet Bharara:

Yeah, I think there’s a few things to say. One is, the language used by the judge is strong. Sometimes judges use strong language. But it tells you the intensity with which the judge felt there was no case. That’s number one. Number two, it may be worth explaining to some folks this business about Obama appointed judges versus Trump appointed judges. Yeah, when it comes to the Supreme Court, it is pretty much the case in modern times, that you could have some sense of the judicial philosophy and jurisprudence of a particular nominee based on the president who appointed them. That is true, probably also true for a lot of circuit court judges. There is getting in the weeds a little bit, that is not always true of the trial court judges, the district court judges, like Judge Brann. It happens to be true that even when you have a Republican president or a Democrat president, in a particular district if one or more of the state senators is from the opposing party, sometimes deals are worked out, through which somebody from the opposing party of the president can get appointed to judgeship.

Preet Bharara:

So I worked for Senator Schumer for a number of years. George Bush was the president for most of that time and there was an arrangement worked out between the White House and Senator Schumer, who was the senior senator from New York. And there happened to be some bush judges in the Southern District of New York and Eastern District of New York, who were progressive. And they’re technically Bush appointed judges, but there was deference given to Senator Schumer with respect to some picks. And my understanding is that with respect to Judge Brann, though he was technically appointed by Obama, that there was an arrangement worked out because he was recommended by Senator Pat Toomey, Republican senator from Pennsylvania. He was in federal society. I believe he was a Republican party official and also affiliated with the NRA. So this is not a bleeding heart liberal who has some agenda.

Preet Bharara:

This is a judge who in the finest tradition of wearing a robe, didn’t see a case and couldn’t proceed and give the relief that was being sought. That’s all. And so this nonsense that you hear, because people are making bad faith arguments about why they lost and it must all be political. The political actors in this case, were the plaintiffs, was the Donald Trump for president campaign, not the court.

Anne Milgram:

Yeah, I agree completely. And I think it’s important also that at the district court level that we’re talking about, the job of the district court judge is to follow existing law and precedent and to apply the facts to that and it is a very strongly worded opinion for a federal judge. And I think that’s worth noting, that it didn’t just dismiss the case, it dismissed the case in very strong language saying that they were baseless accusations and really saying also we don’t disenfranchise American voters just willy nilly. It’s a really important part of our democracy. And so I agree. Now, Giuliani responded. And what was kind of amazing is that… And this also is very disappointing to me. And so I want to talk it through so people can just see… So our listeners can just see it. Giuliani said, “We hope that the Third Circuit…” Because they’ve now appealed this up to the Third Circuit, which is the appellate court, “We hope that the Third Circuit will be as gracious as Judge Brann in deciding our appeal one way or the other as expeditiously as possible.

Anne Milgram:

This is another case that appears to be moving quickly to the United States Supreme Court.” Now, it shouldn’t be moving to the United States Supreme Court, because once the votes are certified by the state, it should be rendered moot. But regardless, I don’t think that that’s… You and I could talk about it substantively, but I don’t think that’s the issue. I think this was meant to be a political signal to the Supreme Court, that we want to get to the Supreme Court and we want that court to decide in our favor. And he didn’t say it as explicitly as I’m saying it, but that statement really troubled me. The answer should be, “We want our day in court and we’re going to appeal the decision.” It shouldn’t all this is about our getting to the Supreme Court to try to get the ruling we want from the people with a six three majority.

Preet Bharara:

They’re terrible lawyers. I hate to say it, but Rudy Giuliani [inaudible 00:26:33], I’ll talk about Sidney Powell in a moment. And lawyers vary in strategies, but generally speaking, it is a shocking thing that someone is important as a sitting president of the United States who believes that the future of the country’s at stake can’t get the kind of high quality lawyering that you would expect them to get. If you’re sitting president whether a Republican or a Democrat, throughout history, the best lawyers in the country should be climbing over each other to take the representation. A, because of the prestige, B because of the importance and C, because the other side, you have to believe. And that’s true here with Bob Bauer and Mark Elias and some others. They have the best lawyers. That was true in Bush v. Gore, two titans of the law among them, whatever you think of them and whatever you think of them today.

Preet Bharara:

Ted Olson and David Boies. We’re on other sides of Bush v. Gore. And here on the one hand, you have incredibly skilled, accomplished litigators on the Biden side, as you would expect. There’s nothing remarkable about that, that’s what happens in cases of this significance. And on the other side, you have Sidney Powell, who has now actually been thrown under the bus by the Trump campaign and who spouts conspiracy theories involving Hugo Chavez about whom even Tucker Carlson says, she doesn’t provide any evidence. I don’t know what she’s talking about. So it’s a mismatch that’s kind of bizarre. And it may be emblematic of the entire Trump presidency, he can’t get good people to represent him in these matters when it’s… The most important thing in the world to Donald Trump is not to have lost this election. And the most important thing to him, I think, is to remain in office. And this is the quality of personnel he brings to bear, it makes you wonder the quality of people he brought to bear on everything else, including COVID.

Anne Milgram:

Yeah. And to your point, I don’t think it was just that Giuliani wasn’t a good litigator, when he was in court, he was also deeply unprepared. And we talk about this a lot. This is a little bit weedy. But the idea of showing up in a judge’s courtroom, he didn’t remember the judges name at one point, he couldn’t talk about the legal standard that should be applied. He was tweeting during the argument with the judge, which most federal judges I know would not allow you to have your phone in the courtroom, particularly not not use it. And he didn’t have the kind of… If you’re going to walk into court make to those arguments, he didn’t bring the facts in the law that he needed to bring to make even a colorable argument. And so preparation matters, good lawyering matters, legal skills matter. But it is kind of a stunning thing to have seen this.

Anne Milgram:

And then, let’s talk about the Sidney Powell thing, because I think the depth of the disinformation campaign that’s been happening, I think a lot of times we don’t really see it. And I went deep to try to understand what was happening. And what you find when you look at this is that Sidney Powell, who of course has represented Michael Flynn and who stood at the press conference last week with with Rudy Giuliani and Jenna Ellis as part of this elite strike force, she is pushing this conspiracy theory that goes… It’s almost like if you told-

Preet Bharara:

Can you explain it?

Anne Milgram:

Yeah, it’s like-

Preet Bharara:

Can you explain? [crosstalk 00:29:47] because I’m so glad that I’ve tuned in to this week’s Cafe Insider. So you, my incredibly intelligent co host can explain it to me because I actually don’t know that even understand what is alleged.

Anne Milgram:

Okay. So I’m going to give you like the two or three points, but it doesn’t make sense nor should anyone listening to this expect it to make sense. So her argument is it is an elaborate conspiracy that begins with the former Venezuelan president, Hugo Chavez who died in 2013… Yeah, stay with me. To rig the US elections by using voting machines made by a company named Dominion. Now, what is really important for you to know is that the Dominion company has nothing to do with… Oh, and she also blamed I should note, the Clinton Foundation and George Soros. These are also targets of the right frequent, the most liberal anti socialist, anti communist.

Preet Bharara:

Yeah. So, George Soros, you get that all the time, but it’s a little bit special. It’s a little bit extra.

Anne Milgram:

It’s unusual to go to-

Preet Bharara:

To through in Hugo Chavez.

Anne Milgram:

… Hugo Chavez. So basically, what Powell is saying is that this voting company, Dominion is one of the companies that makes these electronic voting machines. And it was used in probably about 24 states this year. She’s trying to connect it to another company Dominion, this company to another company called Smartmatic. Now, Smartmatic also does election technology. It was used only in LA, this election season. And they were founded in Florida by two Venezuelans. Smartmatic has previously provided election technology to the Venezuelan Government. Now, it’s important to recognize that Smartmatic and Dominion are like apples and… This may be a bad analogy, but I’m gonna keep going for a second. They’re like apples and oranges. They’re both fruits, they’re both sold at a grocery store, but they have nothing to do with one another. So Smartmatic is one company, Dominion is another company, they both happen to be election companies, you can buy their election software, but they have no relation to one another.

Anne Milgram:

And so it’s this unbelievable web that ultimately, even if you push it farther to understanding whether there’s any allegation of real fraud, there is none. There’s no particularize allegations against Dominion, it’s just trying to connect a company that’s been used in half the states to a company that was used in one city that was founded by Venezuelans. And that-

Preet Bharara:

So here’s why it seems you have to make such an outlandish allegation. I think Donald Trump lost by a lot of votes in a bunch of states, right? And so individual allegations of in person fraud or mailing fraud, are going to be difficult to make and are not going to sway the result of the election. And you may have this broad claim where they wanted to throw out seven million votes in Pennsylvania. Those are certain kinds of legal arguments you make. But otherwise, in order to claim massive fraud, it seems you got to reverse engineer a way to say millions of votes can’t count. And the way you reverse engineer it, is you say, “Hey, this company had the ability to switch votes back,” to the tune of whatever you need. Tens of thousands, hundreds of thousands. That’s why Sidney Powell said about dominion, “It can quote, set and run an algorithm that probably by the way, probably, ran all over the country to take a certain percentage of votes from President Trump and flip them to President Biden.” And it seems to me, you have to make a crazy allegation like that.

Anne Milgram:

Yeah, otherwise you can’t get-

Preet Bharara:

Otherwise, you can’t get to the numbers.

Anne Milgram:

You can’t get the six million votes in all those electoral votes.

Preet Bharara:

Yeah, you can’t. But it also doesn’t explain if [inaudible 00:33:37] logic, why the bad guys were so smart about Biden, but they screwed up the Senate.

Anne Milgram:

Right, totally.

Preet Bharara:

How did that happen? And why they left it close in some other states and why they weren’t able to do the same in Florida, which they were hoping to win. So it doesn’t make sense logically. And as you point out, as courts have seen, I don’t mean to give them too much credit. But it’s an omission against interest, because he’s a supporter of President Trump. When Tucker Carlson says, “We keep asking for the evidence and it’s not there.” That tells you something. Look, it is also interesting. I don’t mean to denigrate these people too much because I have lost any last bit of respect I had for Rudy Giuliani some time ago. But when someone is not good enough for Rudy Giuliani like Sidney Powell is found to have been, what does that say?

Anne Milgram:

Well, let’s talk about that. So all of a sudden, over the weekend… And Sidney Powell, I forgot to mention, I think two key parts of her argument, which is that the Republican Secretary of State and the Republican governor in Georgia, are basically connected to this conspiracy. And so she went a step beyond what are the general allegations by basically arguing that the Georgia governor Brian Kemp and that the Secretary of State, that they were basically in on this whole conspiracy and essentially corruptly benefiting, getting some kickback from it.

Preet Bharara:

Hey, wait. Is she saying that the governor in Georgia and the Secretary of State in Georgia were appointed by Obama?

Anne Milgram:

She’s not saying that.

Preet Bharara:

Oh, okay.

Anne Milgram:

She’s not saying that. But she basically said that they were getting payoffs as part of this scheme. So then all of a sudden it comes out, Rudy Giuliani issues a statement and basically says, “No, no, no, she’s not part of the elite strike force and she’s not personally representing the president. And there was a lot of stuff going on back and forth on Twitter saying, even she is too extreme for the president. But actually, what do you think was happening there? Why do you think she got kicked out?

Preet Bharara:

So there’s some speculation. I think that the reporting is at least, that Trump was very unhappy with that crazy press conference. And I tried to make it a point of not mocking people for physical things. But there was this weird tableau of Rudy Giuliani. I don’t know what was going on with him and other people can speculate about that on Twitter, but displeased the president. And I think people have suggested that Sidney Powell was not making good on these claims, that she said to have made, but there’s also a political component that you just referred to, not just attacking the Republican governor Kemp in Georgia and the Secretary of State, but also I think, in the course of making the various claims, arguing that Doug Collins should be in the runoff in the Georgia Senate race and that Kelly Loeffler, maybe should not be and causing people to get very concerned about what’s going on in the runoff.

Preet Bharara:

So she’s casting aspersions, not only on the Biden victory, but on one or more of these Republican victories as well. And there’re some speculation that the governor of Georgia, maybe had some leverage and started to push back on Sidney Powell. And maybe that was heated, I don’t know. But whatever it is, they had too much. They had they had enough.

Anne Milgram:

Yeah, my money would be on that she’s calling into question the Senate race, the results from November third, as to the two candidates. But she’s also calling into question the runoff in January. And the more she denigrates the Republican governor and Republican Secretary of State, there’s a real risk that people also don’t vote because of that. And with that they really lose trust in those state officials who run the elections. And it crossed a line I think.

Preet Bharara:

A couple of final points for me on this. Remember she talked about Pardon-palooza? One is, Sidney Powell, I believe still is the attorney of record for Michael Flynn. And you can look back at some of the litigation strategies that she used in the Flynn case, trying to compel the district court judge to dismiss the case at the request of the government without making any inquiry at all. And I think you and I both said at the time, that was a mistake. It needlessly upset the judge, it needlessly elongated the proceedings, it had to go to the DC circuit, it then had to go to an on bank panel in the DC circuit. And here we are and we have President Elect Biden, and if she had not made some of those moves, probably Michael Flynn would be free and clear today. Now, he probably will be otherwise and will get us into Pardon-palooza in a moment. But I think you can view the quality of her lawyering in light of the recent decision she’s made and the in the recent allegations she’s made.

Preet Bharara:

The other point I would make is I think overall, the lawyers for President Trump, in bringing all these suits have done him a big political disservice as well. What Donald Trump wanted to have on his way out was a legitimate basis for tremendous grievance, that the election was stolen, that it was unfair for all these reasons that he alleges. And I know there’s always going to be a quantum of people in the country who believe that no matter what the facts show, but it is not helpful to that cause of grievance, I don’t think. When you have case after case after case after case, in which no evidence was shown and evidence was required. And so at the end of the day, I think by bringing these frivolous lawsuits that have been sometimes laughed out of court, that he’s undermined the narrative that the election was stolen from him and that there was actual fraud. Because you have no evidence in dozens of cases. And I think you have some people who reasonably will appreciate that that was a false claim.

Anne Milgram:

I agree. And look, we now I think… I think the last count was nine Republican senators or outgoing senators who basically said Joe Biden has won the election and a number of them talk about the lack of any evidence of election fraud. And so I think the President has taken what he wanted to be his argument to allow his ego to move beyond this and to allow him to make his claim for the 2024 Republican nomination. He’s allowed it to go too far into the realm that in my view, I think we have to be honest about the fact that people get their news from so many different sources now and a lot of those are really tribal. And so there are a lot of people who will not se the truth of it, but the truth of it in my view, is that the litigation has just basically shown that the elections were handled really well. That men and women, Republican and Democrats, elections officials around the country, volunteers, they did a great job in basically ensuring the integrity of the election.

Anne Milgram:

And so to me in some ways every Trump loss has been another victory for the fact of that the elections were… It just confirms that the elections are run well, that the states generally handled them well and that they are not partisan, that observers from both political parties and both campaigns get to watch and there are rules and everybody is to follow those rules. And that in many ways, I think has been… Those arguments have been strengthened by the litigation, not in any way harmed by it. Again, I’m mindful of that not everybody gets their news from the same sources, but I think the victories of the Biden camp really pushing against these arguments of election fraud, they’ve been decisive and strong. And so my greatest hope and I think you probably feel the same, is that there is a little bit of litigation still out there.

Anne Milgram:

Giuliani, as we said that he appealed the district court decision in Pennsylvania to the Third Circuit, which is the appellate court, there are recounts that are still happening that Trump campaign has paid for recounts in some of the Democrat stronghold counties, but I expect that the litigation in the recounts will end fairly soon and that we’ll will turn the page on the resistance to Biden’s election.

Preet Bharara:

That’s an interesting phrase you used.

Anne Milgram:

I shouldn’t have said resistance.

Preet Bharara:

The resistance.

Anne Milgram:

No, I shouldn’t have said it.

Preet Bharara:

On the other… No, I like it. Hey, the shoe was on the other foot. So and as as you were speaking, our crack team has reported that Pennsylvania just certified, which is important, because it’s another nail in the coffin of Donald Trump’s electoral defeat. But also it now finally makes that Pennsylvania case as lawyers say moot, which has an ordinary meaning as well. The only relief that they sought, and maybe this was also a legal mistake speaking of bad lawyering. The only relief they sought, as I understand it, was to prevent Pennsylvania from certifying. Now that Pennsylvania has certified the vote, there’s no relief to seek. Meaning it’s a moot-

Anne Milgram:

That’s right.

Preet Bharara:

And so all these proclamations of Jenna Ellis and others about how we wanted to lose, so we could get to the circuit and get to the Supreme Court is foolhardiness. Because the moment that the certification happens, there’s no case. So no justice is in the Supreme Court, whether they’re sympathetic on the merits or not, there’s no reason to think that they would be, they can’t take the case now.

Anne Milgram:

That’s right. That’s a really important point. And that means that that litigation is over, they may try to file a new claim. But it’s important that Judge Brann did not let them amend their complaint, they’d already amended once. And so that means to change their arguments. And so they had one shot to change their arguments, they could try to sue for something else, but they will not be able to come back in based on this. And I think the President has to see Michigan has been certified, Pennsylvania has been certified. There’s really no way in my view to make up the difference in votes in Wisconsin, even in the recount. And so I think this is just one step closer to having the efforts to stop fighting the election end.

Preet Bharara:

So we were talking a minute ago about Michael Flynn. And we have talked about Pardon-palooza. I don’t mean to make light of it. Because I think the President, although he has the power, he has abused, I think his discretion. I don’t mean there’s a legal term, I just think he’s not exercised his pardon power wisely and with balance. But probably he’s going to pardon a lot of folks. Michael Flynn, 100%?

Anne Milgram:

I say 100%. I say 100% because just to play this out, you and I were texting about this the other day. Joe Biden is president, there’s a new Attorney General. Remember, it was Bill Barr, who moved to dismiss the Michael Flynn case. And so a new Attorney General can undo that. And so if Donald Trump doesn’t pardon Michael Flynn, I think the likelihood of that case being reinstated and Michael Flynn being held accountable is very high. And so what Sidney Powell and Michael Flynn are not going to want is to have to worry about that. And so yes, I vote 100% on that. What do you think?

Preet Bharara:

You’re correct. The answer is 100%. The answer Milgram, is 100%. And again, we’re not laughing because it’s funny, it’s kind of sad, but it’s 100%. And I- [crosstalk 00:44:33]-

Anne Milgram:

I’m laughing because you also made it into a game show.

Preet Bharara:

I made it into a game show.

Anne Milgram:

Yes, which I appreciate.

Preet Bharara:

Paul Manafort.

Anne Milgram:

Paul Manafort.

Preet Bharara:

Yeah, I think probably I don’t put that at 100%.

Anne Milgram:

I put it at 90.

Preet Bharara:

I think it’s high.

Anne Milgram:

I think very high likelihood that he also gets a pardon. I should just know, can I say two very quick things about pardons. President Trump has not used them often and they’re frequently used by presidents. The DOJ website says, “A pardon is an expression of the President’s forgiveness and ordinarily is granted and recognition of the applicant’s acceptance of responsibility for the crime and establish good conduct for a significant period of time after conviction or completion of sentence. It does not signify innocence.” So Obama did about 1900 pardons. He did a lot of nonviolent drug convictions, he pardoned-

Preet Bharara:

Yeah. And commutations.

Anne Milgram:

And commutations, basically lessening somebody’s sentence. George W. Bush did about 200, Donald Trump has only done 38. And they’ve generally been people he knows, or people who’ve come to him through celebrities or he’s been lobbied by people he knows. And a couple like Susan B. Anthony, have felt… Just the boxer Jack Johnson have felt very political, just sort of they’re obviously meant to be symbolic. But he really has not done a lot and I think we should just look for him to do a lot more.

Preet Bharara:

But there’s time.

Anne Milgram:

There’s time.

Preet Bharara:

There’s time.

Anne Milgram:

Who else is… Is he going to pardon himself? Try to pardon himself?

Preet Bharara:

So before we get to that, we talked about whether or not he will pardon preemptively people around him like Jared Kushner, or his sons. The reason not to do that is it’s kind of an acknowledgment that they’re in some jeopardy. So I don’t know that he’ll do that. With respect to pardoning himself, the first question I think is, can he? And we’ve talked about this before, but I think that people are focusing on it now because it is a possibility. It makes no sense you can pardon yourself. The constitution is not 1000% clear on this point, it’s never happened before. So there’s no precedent. The only other time it’s seemed to have come up, is when Richard Nixon was in peril, which resulted in his… People have heard us talking about before, we’re very, very short office of legal counsel opinion, which basically relied on the principle that is no man can be a judge in his own case, no man can pardon himself.

Preet Bharara:

That makes sense to me. But there’s not a lot of legal analysis there. Some other scholars have also said, if you look at the constitution, the pardon is something that is referred to as something that the President can grant. And if you’re going to grant something, the linguistic argument goes, you have to grant it to another person or another party, you can’t grant something to yourself, if you have it, you have it. I don’t know how far that argument goes.

Anne Milgram:

It’s worth just stopping on the fact that the constitution does not explicitly say that the President can pardon himself. And so I think it’s a very strange thing to me to believe that the President could pardon himself without that being in the constitution, because it essentially would grant immunity to the President and the constitution explicitly does not grant the President immunity, we know he can be impeached, we know he can be charged after he leaves office or convicted after he leaves office and held accountable for crimes. And so it feels very strange to me to say that the President can pardon himself. Let me read you a listener question, Preet. Tom from Colorado says, “”Hi, Anne and Preet, love the show. Quick question. When Trump starts his inevitable pandemic of pardons, can he pardoned himself and others for future yet to be committed crimes?” So the first piece can he pardon himself, I don’t think legally he can. But and this is a really important point. Donald Trump doesn’t play by these rules.

Anne Milgram:

He doesn’t necessarily follow the OLC opinions. And so why wouldn’t he, Preet, just say, “I am pardoning myself.” And his argument of course would be, “I’m pardoning myself because the election was stolen from me, if they’ll steal an election, what would stop them from trying to politically persecute me and make things up against me? So I’m pardoning myself, just so that I can’t be politically persecuted.” And then, in order to challenge that, a US Attorney’s Office, who has standing to challenge the President’s legal claim, really, the people who would charge him with a crime, right? And so it would set in motion this very, very bizarre chain of events in which you would have to refute the idea that the President had the ability to pardon himself and it’s not that easy to do so. So what do you think?

Preet Bharara:

So I think it’s a very interesting question as to what effect it would have on a potential charging decision. If the President has preemptively sought to pardon himself. So for example, President Trump says, “There’s nothing here but I know that they’re going to be vindictive jerks who are going to come after me because we’re all political and they’re going to be the deep state.” So he’ll have to say all that. He can’t just say, “Hey, I committed crimes so I’m going to pardon myself because I didn’t do anything wrong. But to prevent unjust retaliation against me because I fought to save America. I am issuing myself a self pardon.” And my family, possibly.” Now let’s say fast forward in some prosecutor’s office federally, has a makeable case against Donald Trump.

Preet Bharara:

On the one hand, the fact that Donald Trump has sought to pardon himself, might cause them to think, “Well, this is going to be a pain in the neck because maybe the prosecution won’t stick. And maybe there’s a real argument and it’s going to get bogged down and it’s going to be all about the self pardoned as opposed to the underlying conduct that we’re prepared to charge. Oh, really not worth it.” On the other side of the coin, if I make them think, “You know what? Maybe we should be extra aggressive in bringing the charge, because the precedent set by a president seeking to pardon himself is just unsustainable and is objectionable and we’re never going to get a resolution to the question, unless we bring the charge. And at that point, the President would assert the pardon as a defense to the federal charge and you get some result, and maybe that’s the best course for justice to follow. I don’t know.

Anne Milgram:

And maybe there’s another way to challenge it. But I was thinking about, if the President does this. And the President always does this.

Preet Bharara:

Who would have [crosstalk 00:50:45] standing? Who would have standing to challenge it? So, from his perspective, he can say all that nonsense about protecting himself from retaliation. He’s going to say, “My whole presidency was plagued by people trying to investigate me and my family and any future prosecution investigation to me will be a hoax. I’m not going to give them the ability to do that.” And then you hope that maybe at the end of the day, it never has to be litigated and maybe it has a chilling effect on some people. I don’t see a lot of harm for him politically in it. For someone else, it would be ruinous, not for him, because he has a narrative to sell, [crosstalk 00:51:22] that has already been sold.

Anne Milgram:

Exactly. That’s why I think he’s going to do it. If I had to say more likely than not, my bet would be more likely than not that he does it. Again, he also always plays offense. And so this is a way to play offense, right? To not be waiting to be charged or potentially be charged. One other point, Preet, that Tom from Colorado made, which I think is a really important point is just to understand that the crimes that can be pardoned are conducts that’s already taken place. So it’s a retroactive thing, it’s not a prospective thing. The President cannot say, “I’m pardoning myself or my family for any federal crimes that we have committed in the past or that we will ever commit in our lifetime.” It doesn’t work that way. Even if it hasn’t been charged yet, it’s for existing conduct. And I think that that’s an important point, just so people are clear on that.

Preet Bharara:

Yeah. The conduct has to have already happened, the indictment need not have happened. And this is the last point I’d make, someone has suggested, people have suggested will he step aside and let Mike Pence pardoned him. I don’t see that. Even for Donald Trump, that’s incredibly humiliating. It seems to be a concession, it seems to be a surrender to his opposition and a much greater acknowledgement that he’s in jeopardy. And I think he’ll just leave it at a self pardon.

Anne Milgram:

I think it’s a million times better for him in his view politically and substantively to self pardon than it is to step aside and let Pence do it. It’s more consistent with his whole narrative. The last point I would make is that federal pardon doesn’t impact, or presidential pardon doesn’t impact the state cases. And I would expect the state cases, the [inaudible 00:53:09] case in Manhattan, the New York Attorney General, I would expect those to focus on the President’s taxes and his business, the Trump Organization, I would not expect them to be related as much to political corruption, which I would describe as the 2016 election and Ukrainian interference, I would expect it to be more tightly hewing to tax and white collar crime and fraud offenses. But those cases can still go on. And if the President is convicted, or a member of his family is convicted, any federal pardon or pardon of himself or others would not impact that.

Preet Bharara:

If Donald Trump pardons himself, we’ve already seen and this is controversial and I don’t speak for the Biden ministration. But there’re some signs that Biden doesn’t want his administration to get bogged down in investigations of Trump and prosecutions and get distracted because there’s so many other affirmatively good things he wants to do for the country. Would he and the administration, potentially take the view that in light of that self Pardon, maybe it doesn’t make a lot of sense to go down that road, which at the end of the day might be futile. Because President Trump, even though we don’t agree with the legitimacy of it, has pardoned himself. Do you think there’s any possibility that they use that in a politically defensive manner, to have a reason not to go down the road that I don’t know if this is true or not, but that some people don’t want to go down.

Anne Milgram:

This is the question I’ve gotten from reporters more than any other question in the past few weeks, which is, how is the Biden administration going to handle whether or not to charge Donald Trump? And my general view is that Joe Biden is going to want to turn the page forward, particularly on the political corruption things. You could argue they’ve been litigated. Obviously, the obstruction component of the Muller report was not litigated, Muller just set out those 10 or 11 potential instances of obstruction. He did make a call on the conspiracy question as to whether the campaign had conspired with the Russians. He did not make a call on obstruction. But there was an opportunity to have impeach the president on those allegations, that opportunity was not taken. The President was impeached on Ukraine, he was acquitted. And so I think there’s a fair argument that these issues, what I’m calling the political corruption issues, that we know of have been litigated already and that there’s a lot to be said about moving forward to address COVID and the economy.

Anne Milgram:

But I would say two other things. I think they have to be really careful about basically saying, “We’re never going to look at anything that President Trump or his family has done,” because that would put him above the law and that can’t be right. And so again, I’m not suggesting that I think the Biden administration should go backwards on anything, but if facts and evidence come forward, that the President has engaged in a federal crime for which he hasn’t been pardoned and for which there hasn’t already been sufficient process or investigation, then I think the Biden administration has to do what they would do what the AG’s office should do in any other case, which is look at the facts, look at the evidence and look at the law. And so I worry a little bit about, if they made the argument you just suggested, which is, “Look, even if we charge the President’s self pardon, we’re going to have to litigate it.” That is then really confirming that the President has the ability to self pardon in some ways. And so I don’t know.

Preet Bharara:

I have a lot to say about that and about all those considerations. I’m sure it’s going to come up in the coming weeks. And we’ll be here to talk about it. But before we go, we wanted to thank all of you this week of Thanksgiving, and also give thanks for some other great news that we have in our Cafe family. And that is Tamara Sepper, whose name you hear in the credits at the end of the show, our head of content is the proud mother of a little beautiful baby girl.

Anne Milgram:

Yeah, it’s amazing news and we’re all sending our love to Tamara and her family. And yeah, I’m thankful for you, Preet, I’m thankful for the whole Cafe team, I’m thankful for our listeners.

Preet Bharara:

I’m thankful for you too and everyone else.

Anne Milgram:

Happy Thanksgiving.

Preet Bharara:

So we’ll see you on the other side of Thanksgiving, folks. We’ll be back next Tuesday. Send us your questions to [email protected]

Anne Milgram:

And we’ll do our best to answer them. Take care.

Speaker 3:

That’s it for this week’s Cafe Insider Podcast. Your hosts are Preet Bharara and Anne Milgram. The executive producer is Tamara Sepper. The senior producer is Adam Waller, the technical director is David Tatasciore and the cafe team is Matthew Billy, David Kurlander. Sam Ozer-Staton, Noa Azulai, Nat Weiner, 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.