• Transcript
  • Show Notes

In this episode of CAFE Insider, “Pardons, Proof, and the Pandemic” Preet and Anne break down President Trump’s pardon of former National Security Adviser Michael Flynn, the Trump campaign’s latest failed efforts to block vote certification in battleground states, the Supreme Court ruling that struck down New York’s COVID-19 restrictions on houses of worship, and more.

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

This podcast is produced by CAFE Studios. 

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

NEERA TANDEN

“President-elect Biden Announces Key Members of Economic Team,” Biden-Harris transition, 11/30/20

“Biden’s pick to lead White House budget office emerges as lightning rod for GOP,” WaPo, 11/30/20

“Cornyn spokesperson: Neera Tanden has ‘no chance’ of being confirmed as Biden’s OMB pick,” The Hill, 11/29/20

Sen. John Cornyn tweet, 11/30/20

MICHAEL FLYNN

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

Fifth Amendment to the U.S. Constitution

Michael Flynn Executive Grant of Clemency, President Trump, 11/25/20

A Sitting President’s Amenability to Indictment and Criminal Prosecution, Office of Legal Counsel opinion, 2000

Presidential or Legislative Pardon of the President, Office of Legal Counsel opinion, 1974

“Statement from the Press Secretary Regarding Executive Grant of Clemency for General Michael T. Flynn,” White House, 11/25/20

“Giuliani is said to have discussed a possible pardon with Trump,” NYT, 12/1/20

“Flynn spurs questions of who Trump might pardon next,” The Hill, 11/27/20

“Trump’s Pardon of Flynn Signals Prospect of a Wave in His Final Weeks in Office,” NYT, 11/25/20

“Trump Pardons Michael Flynn, Who Pleaded Guilty To Lying About Russia Contact,” NPR, 11/25/20

“Flynn Redux: What Those FBI Documents Really Show,” Lawfare, 5/1/20

“Mueller: Flynn gave ‘substantial assistance’ to probe, deserves little to no prison,” Politico, 12/4/18

“If you’re pardoned, can you be compelled to testify about your crime?” Eugene Volokh op-ed, WaPo, 6/2/17

Rudy Giuliani tweet, 12/1/20

ELECTION LITIGATION

Donald J. Trump for President, Inc. v. Secretary Commonwealth of Pennsylvania, Third Circuit Court of Appeals, opinion, 11/27/20

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

The Honorable Mike Kelly v. Commonwealth of Pennsylvania, Supreme Court of Pennsylvania, opinion, 11/28/20

“U.S. judiciary, shaped by Trump, thwarts his election challenges,” Reuters, 12/1/20

“Appeals court rejects Trump challenge of Pennsylvania race,” AP, 11/27/20

“Trump’s Attempt to Shift Burden of Proof to Biden Shows His Election Lawsuits Are Garbage,” Law&Crime, 11/27/20

“Sidney Powell Mocked, Scorned, Ridiculed and More Over Clumsy, Rambling, Typo-Filled ‘Kraken’ Lawsuits,” Law&Crime, 11/26/20

Marc Elias tweet, 11/30/20

President Trump tweet, 11/27/20

Jenna Ellis tweet, 11/27/20

SCOTUS COVID-19 RESTRICTIONS

First Amendment to the U.S. Constitution, “Free Exercise Clause”

Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, Governor of New York, U.S. Supreme Court, opinion, concurrences, and dissents, 11/25/20

South Bay United Pentecostal Church v. Gavin Newsom, Governor of California, U.S. Supreme Court, opinion, concurrence, and dissent, 5/29/20

“Op-Ed: In its COVID ruling, Trump’s activist Supreme Court gives us a preview of what’s to come,” Erwin Chemerinsky, LA Times, 11/27/20

“Midnight Ruling Exposes Rifts at a Supreme Court Transformed by Trump,” NYT, 11/26/20

“In a 5-4 ruling, Supreme Court sides with religious groups in a dispute over Covid-19 restrictions in New York,” CNN, 11/26/20

Who Has the Burden of Proof? Not Biden.

With the Trump campaign’s election litigation efforts failing, Trump is turning to a new strategy that defies law and logic.

Just as Preet and Anne predicted, President Trump pardoned former National Security Adviser Michael Flynn last week. On this week’s episode, Preet and Anne analyze the exceptionally broad scope of the pardon power and predict who else Trump may pardon. Plus, can he pardon himself?

Meanwhile, Trump suffered more setbacks as courts continue to reject his campaign’s efforts to block vote certification in battleground states. Preet and Anne discuss the latest court rulings and react to Trump’s claims that Biden must prove that his votes were not “illegally obtained.”

And, the Supreme Court struck down New York’s COVID-19 restrictions on houses of worship, citing religious freedom violations. Preet and Anne break down the First Amendment’s Free Exercise Clause. How did the justices rationalize eliminating COVID-19 restrictions, and what does this decision mean for the future of the Court?

 

Preet Bharara:

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

Anne Milgram:

And I’m Anne Milgram.

Preet Bharara:

Anne, is Thanksgiving so far back in the rearview mirror that we can’t talk about it?

Anne Milgram:

It does feel like it was a long time ago, but it’s already December.

Preet Bharara:

Have you digested your pies? Have you digested your pies?

Anne Milgram:

Just pumpkin.

Preet Bharara:

Should we talk about one quick thing?

Anne Milgram:

Yes.

Preet Bharara:

Oh, I should give people a heads up if they didn’t see my tweet. We have a special event coming up. My friend, Bill Browder of the Magnitsky, who has been a podcast guest more than once, who is living in the UK at the moment, he and I on Thursday, December 10th are going to do a special Zoom. Folks will get an email with a link to be able to attend that event. 5:00 p.m. Eastern Time on Thursday, December 10th, Bill Browder and I will have a great discussion about what’s going on in the world and human rights and all sorts of other good stuff. Make sure you save that date and save that time.

Anne Milgram:

Great. I’ll be watching.

Preet Bharara:

Now first, so Biden is continuing to put his cabinet together and he’s announced some other people. There’s a bit of controversy around someone who I’m biased because she’s a friend of mine, we’ve been friends for a long time, Neera Tanden, who he intends to nominate for the office of management and budget, OMB, which is a big job. Some Republicans are saying, notably John Cornyn of Texas, that she doesn’t have a snowball’s hell in chance of getting confirmed because she’s sent mean tweets about Republican Senators. I find that very ironic how much forgiveness there has been of the most obnoxious tweeter in the history of the world, Donald Trump. What do you make of that?

Anne Milgram:

Yeah. I mean, it’s really fascinating and I think it’s kind of predictable. I think the Republican Senate, as it’s now constituted, is going to push back on some of Biden’s nominees, particularly the more progressive ones and they’re going to make Biden fight. You expect it for some nominees. The reaction to her was surprising in how unified it was. Again, it felt like it was a well organized effort to try to derail that nomination. One question for you, Preet. I sort of feel like Biden has to fight for this nomination for her to run OMB. Of course, she led and she may currently lead the Center for American Progress. It’s a progressive group. I feel like once a president steps in to a nomination it’s really important that they don’t show weakness on it. I would say the same on the Republican side, if this were flipped, that generally a new president gets their cabinet, gets their list of advisors who they want and so, that’s my gut that Biden will not pull the nomination back. What do you think?

Preet Bharara:

Yeah. I agree with that. She’s progressive, but in the minds of some progressives she’s not progressive enough, so there’s a little bit of challenge on the left as well. She’s been long associated with Hillary Clinton, which some people find that affiliation is not as progressive as they want in 2020. I think she’s super smart, has lived a very full life, has been deeply involved in all sorts of policymaking decisions and so she’s more than qualified for the job. When I talked to a bunch of other people you saw that people who are on the left, including Elizabeth Warren, have said supportive things of her. Because, I think, at this point, the administration hasn’t even started yet. You have to rally around the nominees of the president-elect and I think that will happen. But, it’ll be interesting to see, and I may write about this this week, this new world we’re in where because of social media there will be prominent people who have said things about the senators who are in a position to confirm them. If it’s going to be the rule that anyone who has said critical things in the course of free and open debate in the country of senators is longer confirmable, we’re in a different place if that’s so.

Anne Milgram:

Yeah. I don’t think that’s a place where we will end up, particularly because the last four years were really unique. I think in a world where if President Trump had followed existing norms and the Republican Senate had actually fought for those norms, I think we’d be in a slightly different space right now. It’s sort of, I think, engendered a lot more communications and statements by people than you otherwise would have seen. One thing I think is also really interesting is that it’s like now norms are helpful. Now the Republicans are going to go … They’re invoking the norms of you don’t criticize sitting senators or you have to be diplomatic in your criticisms of members of Congress. Whatever norms existed, President Trump really blew threw them and really, I think, was allowed to blow through them as part of his presidency. Now, there’s like this reverse back.

Preet Bharara:

No, Republicans are going to be rediscovering norms in a big way.

Anne Milgram:

I want norms. Yeah, I want them. I mean, I don’t think that this applies here to the Neera Tanden nomination, but I do think the norms are a good thing. It would’ve been good if we’d followed them for the past four years. I’m not being anti norm but, yes, I think there’s a level of, maybe, hypocrisy. They like norms when it’s convenient for their party.

Preet Bharara:

Yeah. Anne, we predicted something last week. I don’t know how much we should pat ourselves on the back but we were correct [crosstalk 00:05:42].

Anne Milgram:

It was kind of a layup.

Preet Bharara:

It kind of was. We said chances are 100% that Michael Flynn would be pardoned by the president.

Anne Milgram:

And we were right. We don’t get to say that [crosstalk 00:05:53] that often. Yeah, you’re right. We shouldn’t gloat, but-

Preet Bharara:

I don’t think we’re … Are we wrong a lot?

Anne Milgram:

No. It’s rare that we both say 100% something’s … You know what?

Preet Bharara:

I think it was very clear.

Anne Milgram:

And, also, we don’t always know all the facts. I think you and I are both aware that we don’t know all the facts so sometimes we don’t make the prediction or the call. We even got a listener question about this, Preet, from Stephanie, who asked, “Now that Flynn has been granted a full pardon, can he be subpoenaed to testify without any ability to refuse to answer. Wouldn’t refusal to answer result in a non-pardonable contempt of court?” We actually got a lot of listener questions on what the pardon means.

Preet Bharara:

That’s true. To the extent that any prosecutorial agency or unit wants information from him he can’t take the fifth with respect to this stuff. In fact, he can’t take the fifth with respect to things even broader than what he was charged with and what he plead guilty to because, as we’ll discuss in a minute I’m sure, the pardon is very broad. It doesn’t just cover the things with which he was charged, which is the normal way of issuing a pardon, but basically covers almost anything he could’ve done before the time he was charged.

Anne Milgram:

Yeah. I mean, it is really broad. I think if we talked about that I think we also would’ve guessed that because part of the purpose of the pardon, the President wants to end any possible prosecution of Flynn. To do that, he decided to be expansive. I mean, the statement basically said that Flynn was pardoned, quote, “For any and all possible offenses arising from the facts set forth in the information and statement of offense.” Those were the charges that were brought against him for the false statement. Quote, “Or that might arise or be charged, claimed, or asserted in connection with that.” It also covered any and all possible offenses arising out of facts and circumstances known to, identified by, or any matter related to the investigation of the special counsel, including any grand jury proceedings. And so-

Preet Bharara:

Wait, you left out a phrase. Including, but not limited to.

Anne Milgram:

Yes, you’re right. You’re right.

Preet Bharara:

That’s a phrase that lawyers use all the time, but what does that mean in this context? But not limited to? Meaning there are things that may not even be set down here in writing for which he is pardoned.

Anne Milgram:

Yes, agreed. You and I have talked about this on the show before how when you cooperate someone you ask them … Remember, Michael Flynn cooperated for a very long time. I think that this has been a little bit lost in the recent media conversation that he was really providing information to the government for a very long time to the point where they asked for a non jail sentence for him. They obviously felt that he had done a good job in his cooperation. It basically covers anything he remotely touched on with the Mueller investigation. My guess is that one of those things, Preet, probably also relates to his son. Remember, there were questions about when Flynn was charged he could’ve been charged. We talked about potentially with the foreign agent registration act his failure to register for work he did in Turkey. There were some reports that his son could’ve been charged for conduct related to some of Flynn’s work for Turkey. My guess is they’ve written this language to really cover anything that could be covered under federal criminal law up until this moment in time.

Preet Bharara:

There’s some people who have suggested that the breadth of his pardon, the text of it, is an example of what they’re going to do next in terms of a self pardon or a pardon for members of Trump’s family. It’s a test. I don’t know if I believe that. I don’t think you need to have a test pardon. They’re capable of writing a broad pardon for the President-

Anne Milgram:

I don’t believe that.

Preet Bharara:

… or someone else later.

Anne Milgram:

It feels like this language will be used if the President pardons, as I expect he will, Manafort, for example. I would expect to see similar language because that really would cover … It just covers the full universe of anything [crosstalk 00:10:03]-

Preet Bharara:

It covers everything.

Anne Milgram:

Yeah. I mean, basically [crosstalk 00:10:04]-

Preet Bharara:

He can say the narrative is going to be that this is a witch hunt, it’s a hoax, and we need to protect these people from nosy and vindictive prosecutors going forward for all time. Do you think Steve Bannon gets a pardon?

Anne Milgram:

It’s a really interesting thing because Bannon … Remember the charges relate to the funding that they raised money to build President Trump’s wall, and then they misused that money. It really-

Preet Bharara:

Okay. t’s not about Trump really.

Anne Milgram:

Exactly.

Preet Bharara:

Directly.

Anne Milgram:

It’s really more about personal fraud, about stealing money from people who are contributing for a political cause. There’s two things I would say about the pardon which is a lot of people have talked about how the President was doing it to buy Flynn’s silence. I don’t think that’s right. I would be curious to know your thoughts on it. It feels to me like the President is doing it to erase the past of the Mueller investigation. He wants to say that the entire investigation relating to Russian interference and what his campaign and people associated with campaign did was not legitimate. I think that’s what this is about.

Preet Bharara:

I think that’s right. I think he wants to undo what has been done whether that’s the Russia investigation, whatever the special counsel did. I mean, even for a time it looked like the pardons he was considering granting were ones where the defendants had been prosecuted by people who he doesn’t like, like Jim Comey and others. I think that’s totally correct.

Anne Milgram:

Yeah. I think that’s one of the buckets. The other bucket is just going to be what benefits Trump personally. It could be true that he could pardon some people and preemptively pardon them, even though charges haven’t been brought. He’ll do that to protect himself potentially or to try to stop his loyalists from being prosecuted after he leaves office and being able to protect them. Again, I think there’s an argument there that he’s trying to buy some silence in some ways. But, I don’t think that that’s what the Flynn pardon is about. Just one other point, Preet, on the question of does somebody … Can they still invoke a fifth amendment right against self incrimination? All of us have this right, this fifth amendment right against self incrimination meaning we can say we’re not going to say something that would get us in trouble, potentially constitute a crime under the law. When you’re pardoned that right against self incrimination, you’ve been absolved, so you can’t be prosecuted. That’s why you were talking about it at the beginning. You couldn’t be prosecuted.

Preet Bharara:

Right, because there’s nothing to protect yourself from once you’ve gotten a get out of jail free card.

Anne Milgram:

In the federal system. I think it’s just worth noting that state cases could still go forward. Under Flynn, I don’t see any potential state cases. The Foreign Agents Registration Act is a federal law. Lying to a federal agent can’t be prosecuted under state law. I think in Flynn’s case he would not be able to basically invoke a right to remain silent. There are other people who potentially could be prosecuted where there would be state liability. If you think about the Trump family and some of their tax things, a lot of tax. If there were ever charges brought tax crimes can often be both state and federal and so just to know. I think it’s right to say that generally people can be compelled to answer questions but that there’s still space for people to say I’m not going to answer because it might incriminate me.

Preet Bharara:

By the way, Anne, while we’re talking about pardons for various folks, literally as we’re speaking, our team advises us that there’s some reporting at The New York Times from Maggie Haberman and, I think, Michael Schmidt and others that Rudy Giuliani has been discussing a preemptive pardon for himself with the President in the last number of days. That’s kind of interesting, isn’t it?

Anne Milgram:

Yeah. I mean, what’s particularly interesting about it is that what would he be pardoned for, right? He has not yet been charged in the Southern District, right?

Preet Bharara:

Yeah. We know that there’s an investigation related to Rudy Giuliani, at least that’s been reported. Not confirmed because that office, as I know very well, doesn’t confirm these things. It is very interesting to me that somebody who’s under investigation and known to be under investigation and if the reporting is correct, has been discussing a preemptive pardon. Nonetheless, is the face of the legal challenges for the President of the United States in state after state after state. Not the best counsel in that circumstance, right?

Anne Milgram:

Yeah, absolutely. Absolutely. The two individuals that we’d first heard Giuliani was associated with, and that the Southern District was investigating, Parnas and Fruman, they have both been charged. It’s a really interesting question of whether the Giuliani investigation is still going. It does, of course, raise questions to me that he’s out there asking for a preemptive pardon. But, I don’t know how you feel, Preet. I expect he’ll get it. I mean, again, I expect that the President is going to build this bubble and say, “I have been attacked. The election was stolen from me. I need to protect these people from an abuse of the rule of law.”

Preet Bharara:

Yeah. Not just these people. We can talk about it again. I guess our fate is to, every week, talk about the self pardon. It’s the question I get more than any other question. I presume you get it too. Based on the discussion last week and thinking about it more over the last week and hearing … I think Sean Hannity said the other day-

Sean Hannity:

The President out of the door needs to pardon his whole family and himself because they want this witch hunt to go on in perpetuity it’s so full of rage and insanity against the President. Can the the President … I assume that the power of the pardon is absolute and he should be able to pardon anybody that he wants to.

Preet Bharara:

That’s the path we’re on.

Anne Milgram:

I agree.

Preet Bharara:

He will do exactly what you said. I mean, I can write the speech for him. This is a hoax. I’ve been the subject of hoaxes and witch hunts for my entire time in the presidency. It’s going to happen again because people don’t like me and they don’t like my success and they don’t like that I made America great again. In the abundance of caution because these crazy, witch hunting jerks are going to try to drive me and my family into the ground, I have no choice but to issue a pardon for myself. People who write in and ask questions. I mean, how can that be? How can that stand? I think, at the end of the day, it wouldn’t if there comes a challenge in court. There’s nothing stopping the President of the United States from putting forth a document that is styled just like the Michael Flynn document as a pardon for himself. That will only get challenged, I think, in court if some prosecutor’s office decides, in the federal system, to bring a criminal case against Trump and then he asserts that pardon as a defense. Aside from that, it’s just a piece of paper, right?

Anne Milgram:

Yeah. I mean, I’ve been thinking this through. Is there any other way to challenge it short of somebody bringing charges? The only thing I would disagree a little bit with is that I think it will go beyond the language of the Flynn pardon. I think if the President’s going to pardon himself he’s going to include the taxes and the bank fraud pieces from the federal system. Again, it wouldn’t cover the state, but I think his self pardon would be even more expansive than this.

Preet Bharara:

Yeah. I mean, it could be as expansive, in some ways, as the Nixon pardon. Any and all offenses that could’ve been committed against the United States while in office, right?

Anne Milgram:

Yes. Or even before. Again, I think if he’s going to do it I think he’s just going to go as big and as broad as he can. The difference between him and Flynn and what made the Flynn pardon a little bit cute is that they were able to say everything he told the special counsel is included. Anything about his son, anything about the foreign agents. Flynn knows exactly and his lawyers know exactly what he spoke with with the Mueller probe. It’s like a shortcut to saying anything he’s ever done, any and all offenses against the United States. I think the President’s will be even broader.

Preet Bharara:

Yeah. I think there’s another thing that may need to happen whether or not he pardons himself and certainly if he does try to issue what he styles as a self pardon. And that is, I think, that the Office of Legal Counsel under Joe Biden’s administration would have to take a harder look and issue an opinion. I mean, I think that would be a natural outcome. And, do something more detailed than what was done in 1974 whether it was one sentence that basically suggested that I’m the principle that no man can be a judge in his own case. No person can pardon themselves. That you would have a more rigorous analysis that can guide a prosecutor’s office in whether or not they can charge the President, who has attempted to self pardon, don’t you think?

Anne Milgram:

Yes, I do. I do. I think we’ve talked a lot about the OLC opinions in the past four years. I wouldn’t be surprised if that opinion is just … Attorney General Barr just has them write something that distinguishes the Nixon situation, the 1974 Office of Legal Counsel opinion from the current situation. Says, well that’s different here because X, Y, Z.

Preet Bharara:

Wait, are you saying that you think that, maybe, before Trump leaves office there will be an OLC opinion about the self pardon that’s in his favor?

Anne Milgram:

Yes.

Preet Bharara:

I hadn’t thought of that.

Anne Milgram:

I do. Because, again, I mean-

Preet Bharara:

That’s interesting.

Anne Milgram:

Look, they don’t have to, but if they don’t do it then they’re up against this 1974 … Remember that when there were these questions about whether the President could be indicted and charged by Robert Mueller, all anybody talked about was there’s an OLC opinion that says the President cannot be charged while he’s President of the United States. You have Barr and others, Mueller including, and I think all of us basically saying, “Look, that’s going to be followed whether it’s actually the truth under the law and the Constitution or not.” That’s what the Department of Justice has … That’s how they’ve interpreted the law. Here, I think, what they will do, instead of having something out there that can be used very clearly against them, to basically say, “Look, in 1974, under the theory that you can’t be a judge and jury in your own case.” They’ll find a way to say that this situation is different. Look, that’s what lawyers do. I would strongly disagree with it, but I would expect that that’s being written.

Preet Bharara:

Anne, while we’ve been speaking there’s an update on the Giuliani pardon story. Giuliani on Twitter issued a denial. Said, “It’s just a lie. The New York Times is lying again.” I think he said that what he was doing instead was he was tucking in his shirt.

Anne Milgram:

I can’t believe you went there, Preet.

Preet Bharara:

Was that so long ago you don’t even get the joke. You can’t-

Anne Milgram:

No, I got it. I got it.

Preet Bharara:

The Borat reference.

Anne Milgram:

The Borat movie.

Preet Bharara:

He’s lost in you?

Anne Milgram:

I’ve just been trying to forget it.

Preet Bharara:

Look, he denies it. We’ll see. We’ll see. We’ll see. We’ll see. As the President likes to say, “We’ll see what happens.” All right, so election litigation. We’re still talking about election litigation because, you know what, Donald Trump has still not conceded the election. Meanwhile, all these states … Should we count them up? Arizona, Michigan, Georgia, Pennsylvania. They’ve all certified. Once they’ve certified it’s game over, right?

Anne Milgram:

I mean, for purposes of it becoming formal on December 8th when that time period is over and all the election results have to have been certified and the process starts to move forward. I think it’s done, but the President he’s still litigating. He’s still fighting. The case we talked about last week in Pennsylvania, they’ve now appealed. They’ve asked the Supreme Court to take the case and our listeners will remember the Supreme Court doesn’t have to take that case if there’s not a right for that type of case to be taken by the Supreme Court. They get to decide. I don’t think they’ll take it. It’s a very strange case. They’re only asking for the federal district court to allow them to amend their complaint again to try to find a cause of action to allege that there’s a problem with the ballots. I don’t know how you feel, but I think it’s largely … It’s done, but this is symbolic. Again, it allows the President to keep the narrative going that the election has been stolen from him.

Preet Bharara:

These are two examples of why this litigation is crazy. I think it bears speaking about it for a moment. They brought the case in District Court. They complained that it was an Obama appointed judge even though, as we talked about last week, in Pennsylvania. Even though as we talked about that was an arrangement with a Republican senator and it was actually a Republican who was part of the Federalist Society who ruled against the President because that’s what the law required. And then, it goes to the third circuit, a panel of three judges, which is the one step before the Supreme Court. It’s an unfortunate thing and I’ve seen people say this and I agree with them that we keep talking about whether or not judges are Obama appointed or Trump appointed or Bush appointed, Republican or Democratic judges, when judges are not supposed to be political. But, to me, it seems like one has to do that to show the lie of the argument that the Trump folks make again and again and again when they claim the only reason they lost a particular case is because the judge was in the tank for Obama because the judge was appointed by Obama or Clinton or some other Democrat.

Preet Bharara:

To prove that that’s silly and nonsensical people like you and me have to talk about what the origins of that judgeship are. Here, the opinion was written Steve B, Stephanos Bibas who, for a brief period of time, was actually AUSA in the Southern District of New York, who pretty strongly slams the President’s election lawyer’s case. The other two judges on the panel hears a point by President Trump with some fanfare back in 2017. He writes for a majority. By the way, all three judges appointed by Republicans, he was appointed by Trump, the other two by George W. Bush. He says, “Voters, not lawyers, choose the President. Ballots, not briefs decide elections.” He writes very flatly the campaigns claims have no merit. Tossing out millions of mail-in ballots will be drastic and unprecedented, disenfranchising a huge swath of the electorate and upsetting all down valid races too. He goes on and on with very strong language to say there’s nothing here. They can’t point to the fact that this was an Obama appointed judge. Again, I don’t want to make too much of that. It’s mostly to rebut the claim that the only times they lose is because someone has bias on the bench and that’s just not true here.

Anne Milgram:

Yeah. One of my favorite parts of the opinion that was written is, “Free, fair elections are the lifeblood of our Democracy. Charges of unfairness are serious, but calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.” I mean, that just sums up, in my view, all the election litigation that we’ve seen from the Trump campaign. By the way, just as an aside, when I worked for then Senator Corzine on The Hill, Judge Chagares was nominated by George W. Bush. I worked with him as part of the process with the home state senators and Senator Corzine and then Senator Lautenberg had a bipartisan committee that they used to recommend judges. This was one of the George W. Bush nominations. I agree with you. I also really think it does a disservice to the judges to paint them as Democrat or Republican. The problem is that once the allegations are made that these are Obama judges the allegation is that these judges are acting politically, that they’re not making a decision on the facts and the law, which couldn’t be further from the truth.

Anne Milgram:

I think it’s not just a disservice to these judges, it’s a disservice to our fair and independent judiciary of which President Trump has put a lot of people on the bench. Again, we should assume that people and judges come with a nonpolitical lens. Look, that’s not always the case and I’m not naïve about it, but I really think that as a rule the judiciary tries to stand outside and beyond politics. It’s not good for our institutions of government as we’ve seen repeatedly in the last four years.

Preet Bharara:

Hey, can I ask you? I know we don’t do spelling bees on this show too often or ever.

Anne Milgram:

Let’s not.

Preet Bharara:

Are you ready?

Anne Milgram:

Ready.

Preet Bharara:

I’m surprising you. I hadn’t given you any warning about this-

Anne Milgram:

Oh boy.

Preet Bharara:

… but you’ll see where I’m going in a moment. I want to prove a point. Because my good friend Anne is a tremendously talented lawyer. Anne Milgram, how do you spell the word district?

Anne Milgram:

D-I-S-T-R-I-C-T. District.

Preet Bharara:

I’m surprised.

Anne Milgram:

Is that what they say-

Preet Bharara:

You didn’t ask me to use in a sentence.

Anne Milgram:

… in spelling bees?

Preet Bharara:

Yeah. You’re like, “Can I use it in a sentence? Could I have the origin please?”

Anne Milgram:

Do you want me to do a word pyramid like our six year old does?

Preet Bharara:

You know why I’m asking, right? Because-

Anne Milgram:

Yes.

Preet Bharara:

… notorious lawyer, Sydney Powell, who I don’t know. Again, I don’t enjoy disparaging particular lawyers, other than Rudy Giuliani of late. But, Sydney Powell spews a lot of crazy nonsense and she’s representing the President of the United States in all these actions around the country. And claims, by the way, boasts, that she’s going to bring cases and lawsuits that are biblical in effect. Instead, she made a filing in Georgia in which the word district was misspelled twice on the first page of the document. D-I-S-T-R-I-C-C-T, so districct. Is that how you pronounce that?

Anne Milgram:

Yeah. I was surprised by that. I mean, that’s just a-

Preet Bharara:

And then, distrcoict, D-I-S-T-R-C-O-

Anne Milgram:

She made a number of mistakes.

Preet Bharara:

And, I guess, some people might be rolling their eyes and being like, “Okay, Preet, you’re being, like, kind of obnoxious.”

Anne Milgram:

No, I’m more just-

Preet Bharara:

You don’t make errors like that.

Anne Milgram:

… thinking it goes towards preparation. Yeah, I mean, I-

Preet Bharara:

You don’t make errors like that.

Anne Milgram:

I don’t think it’s innate skill in any way. I mean, obviously she’s practiced law for a long time. Here’s how I would say it. If you were the US Attorney and someone filed this under your name you would be upset because they didn’t use spell check and they didn’t check it carefully. This is below the standard.

Preet Bharara:

In the caption.

Anne Milgram:

Yes.

Preet Bharara:

In the caption.

Anne Milgram:

In the title, yeah.

Preet Bharara:

It’s one thing if it’s on page 34 on a footnote, but in the caption-

Anne Milgram:

Or if it’s someone’s name. I mean, it’s Federal District Court and so it’s the kind of thing lawyers write all the time.

Preet Bharara:

Right. It just further proves that this is all fantasy land and it’s become kind of a joke. Not just among lawyers, but among laypeople also. As I said last week, I think all these lawsuits actually have backfired on the President because now you see case after case. It’s not just rhetoric that it’s hard to pinpoint whether it’s correct or not correct. If it’s just rhetoric uttered at the podium you can still stand by it. But now they’re getting beaten in court, their lawyers are being shown to be inept. They’re getting shut down by people who are appointed by the President himself. Any universe in which he and his allies think that personal loyalty to him as President I don’t think understands.

Preet Bharara:

Someone wrote recently that the President has such a limited understanding of civics and the judicial system that he probably just thought because he’s the president he can just say, “Hey, I’m going to take something to the Supreme Court” and because it’s stacked with three of his own nominees, he’s just going to win. Do you think he’s that naïve? He also said recently on this crazy interview with the erstwhile journalist, Maria Bartiromo.

President Donald Trump:

They say I don’t have standing. You mean as President of the United States, I don’t have standing? What kind of a court system is this?

Preet Bharara:

Just because he’s the President he can sue in any court for whatever reason no matter what the legal principles are. Do you think he just doesn’t get it or it’s all just rhetoric for him, for his base?

Anne Milgram:

Yeah. Or some combination of the two. I mean, I think he may sincerely believe that the President should have standing whenever he wants to bring a case to the Supreme Court. We’ve talked about this before, but the President is largely transactional. He’s all about what do I have to give to get something. I think that that’s how he sincerely views the world and so he, I think, has a very hard time understanding systems that are not purely transactional systems that are based on other things. I don’t know. I’ll tell you what concerned me more because the President can say, “Well, I should have standing,” but he doesn’t. The Constitution doesn’t make it so and the laws don’t make it so. The thing that concerned me more over the past week was this reframing of … You and I have talked about how the President is always working to frame issues. This reframing of the election as, “My votes were stolen and Joe Biden has to prove that he legitimately got 80 million votes.” That really does trouble me.

Preet Bharara:

Flip the burden. He’s flipping the burden.

Anne Milgram:

Exactly. He’s flipping the burden. That’s exactly what we would say as lawyers.

Preet Bharara:

We should explain what that is. Let’s take criminal cases first where it’s a sacrosanct principle that the burden of proof lies with the government, that people don’t have to prove their innocence, that’s why you have something called the presumption of innocence, that’s why the defense doesn’t have to make any case at all. The defense doesn’t have to make an opening statement, doesn’t have to make a closing argument, doesn’t have to put on any witnesses. All the defense has to say, because the burden rests with the government, that the government has not met its burden of proof. That’s a very, very powerful allocation of burden. It lies with the government. The same is true with less consequence because it’s not about liberty and life. In civil cases too, the person who is making the charge, the person who is alleging negligence, the person who is alleging some tort defamation or whatever the case may be, that person has the burden of proof. Here it’s the President making the allegation of some wrongdoing. He has the burden, not the other guy.

Anne Milgram:

You can almost imagine the President’s supporters parodying that language. Somebody could say to them, “Look the election … the electors have certified the election after, you know, … That’s done and Biden has won the election.” You could almost see somebody saying, “Well, prove it.” It’s like, of course, the proof is there. That’s why the electors certify the election. It’s really just a reframing. It’s just another way to try to undercut the election and to do it by shifting the narrative. Look, I should note, the President tweeted that out. Twitter flagged that tweet as not reliable information because it’s obviously not accurate. Again, I worry about this sort of subcurrent of a belief of 70 million plus Americans, many of whom might think that there was election fraud or that the election was stolen when the President has failed to have any shred of proof of that.

Preet Bharara:

Obviously, there’s been some good news in the fight against COVID. There are multiple vaccines. There’s some discussions about how effective they are, which ones are going to be distributed more quickly than others, what the temperature has to be for transporting them and distributing them. By every account, it’s tremendously good news and there are some reports that are suggesting that by the end of this year, calendar 2020, health care workers, at least, might be largely vaccinated and that’s just terrific news. But, politicians, governors, mayors, are still struggling with what the balance is between orders to stay home and closing schools and closing other facilities. Some of these things are getting litigated. There was a case that surprised some people and I wonder what you think about it, Anne, that made its way to the Supreme Court relating to orders by the governor of our state, Andrew Cuomo, because objections were made by religious groups that the order to not congregate over a certain number of folks violated the free exercise clause of the Constitution, by a 5-4 vote, and no one has attached themselves to the opinion.

Preet Bharara:

We don’t know who wrote the opinion, but there’s some speculation it was Amy Coney Barrett struck down that order. Some people think it’s not a great decision and that the Supreme Court justices who ruled in the majority didn’t properly defer on matters of health and public safety to local officials, which is what they claim they should’ve done. They didn’t apply the right standard when knocking down the governor’s order. What do you think?

Anne Milgram:

I’m not surprised by the decision. Again, understanding now the composition of the court that there are six justices that have been appointed by Republican presidents. Here it was 5-4. Roberts had earlier written upholding California restrictions for religious organizations, upholding their restrictions on the number of individuals who could be present in a house of worship. Roberts had essentially written earlier during the summer, with a lot of deference to local governors saying, “Look, this is a public health emergency and we’re going to defer to the elective leaders and how they make these decisions.” In some ways, I don’t think that this was surprising because Barrett has joined the court and we know that she’s a very strong advocate for religious freedom. But, there are things about it that I think are troubling and are worth just thinking through and talking about. The first, and Roberts is now in the minority. He descents with the three justices who were appointed by Democratic presidents. He joins the descent.

Anne Milgram:

One of things that Roberts says and I think is right is that courts, and particularly the Supreme Court, are loathed to reach an issue that they don’t have to. As a rule, they won’t walk into a situation when it’s not really right for a decision. Here, Roberts had already made that ruling in California upholding some restrictions. It’s really important to note that the restrictions don’t just apply to religious organizations. They apply across the board to congregate settings meaning concerts, different religious organizations like houses of worship, weddings. There were a number of ways in which they were applying to big groups of people. Roberts had upheld the California ones.

Anne Milgram:

The ones in New York, what Cuomo had basically done is he’d set a restriction and they’ve got these color-coded levels. Green is everything’s okay. Orange was you can only have 25 people in a house of worship or in a synagogue. Red, if you were in the red zone, meaning COVID was very, very prevalent in the community, it was a hotspot, then it was 10 people or less. And so, those are sincere restrictions. We’ve seen movement by advocates for houses of worship basically saying there should be fewer restrictions. What the court does here, and it’s really interesting to me, first of all, New York is not … There are no restrictions on the two places that sued. The Roman Catholic Church in Brooklyn or the religious Jewish synagogue congregation that sued. Those restrictions are no longer in effect. They reached an issue that they didn’t have to reach. I think it’s just worth noting the court usually doesn’t do that, so that’s the first point.

Anne Milgram:

The second point is that they did change the legal standard of how you’re going to look at cases like this. They did it in what I think is a very interesting way. What the court basically said were that the restrictions were not neutral or of general applicability. Meaning, they don’t apply equally to every institution and Justice Gorsuch goes on to write about bike shops are open and all the transportation facilities are open. There’s a place that makes chemicals that’s open. They’re sort of arguing, I think, what Cuomo decided were essential businesses. The court ultimately rules because the restrictions on houses of worship are not “neutral” and of general applicability, they have to satisfy strict scrutiny, meaning that they have to be narrowly tailored to serve a compelling state interest. And so, the crux of the court’s argument is you’re going to allow a bodega to be open and there could be more than 10 or more than 25 people in that bodega, but you’re going to close a house of worship.

Preet Bharara:

Right. Neil Gorsuch writes a fairly, we were talking about this earlier, to coin a term, snitty opinion. In one spot in his concurrence he writes, quote, “So, at least according to the governor it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience,” end quote. Obviously, and this is not legal jurors prudence analysis, but there’s a big different between running into a store to pick up a loaf of bread or something else or a bottle of wine even and sitting in an enclosed space for a long period of time talking and singing, like you might in a congregation. There’s a reasonable basis to differentiate those two things as a public health matter.

Anne Milgram:

Yeah, I agree. One thing that’s interesting about the Gorsuch opinion is that no other justice joined it and that’s pretty unusual. They’ve got a five justice majority and Gorsuch wrote on his own. That’s, I think, a sign of how far he went. Roberts writes in his descent … He basically says he does think that the restrictions are unduly restrictive, he writes, that sort of 10 and 25 people limits. He goes on to say the restrictions aren’t in effect at this time. The governor does not have those in effect and so why would we reach this issue. And then he goes on to say, quote, “And it is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic.” That, to me, captures the descent, which is to basically say, “Look, we may or may not agree with the specific numbers, but we’re not going to override and put our judgment in place of elected officials who are relying on health experts.”

Anne Milgram:

One other point just to make, and I think that this is worth making, is that we now know where the court is and that the court is going to work. By the way, Roberts is a big supporter of religious liberty and so it’s really telling that he joined the descent in this. One thing New York could do, you just made the exact right point which is, “Look, it’s one thing to go in a grocery store for 10 minutes to pick something up.” It’s a totally different matter to go sit in a wedding at a church or synagogue for four hours and have people singing and sitting very close to one another in the midst of a deadly pandemic where we know the ways in which we can catch the disease are much, much greater when you’re indoors and you’re indoors for a long period of time. And so, New York could rewrite their regulations and this does happen sometimes. Courts strike down regulations and then the city goes back and writes them in such a way where they could explain the health reasons why they were making the distinctions that they were making.

Anne Milgram:

Again, I think the majority in the courts exploited the fact that the regulations were probably done very quickly as COVID has been on the rise and it’s an urgent public health issue. They could go back and make much deeper findings of fact based on health care that would explain why they need to have the restrictions that they do. Again, I think the message is very clearly one in favor of religious institutions. It was a big day for, I think, the individuals who really look to the court and think that the court has not done enough for the free exercise of religion. I think it’s a harbinger of things to come when it comes to things like questions of religious education. I think there will be a lot of ways in which this plays out beyond COVID-19. But, for today, this is where the court is.

Preet Bharara:

It’s going to be our court for a long time, so that fight about Amy Coney Barrett has real consequences for real people in the country. We’ll look forward to more cabinet announcements, personnel announcements in the coming week and we’ll be back next Tuesday.

Anne Milgram:

Yeah. Please send us your questions to [email protected], that’s [email protected], and we’ll do our best to answer them.

Preet Bharara:

Thanks, Anne. Talk to you next week.

Anne Milgram:

Thanks, Preet. Talk soon.

Preet Bharara:

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. 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.