• Transcript
  • Show Notes

In this episode of CAFE Insider, Preet and Anne break down Attorney General Bill Barr’s resignation, the Supreme Court’s rejection of an attempt by the Texas Attorney General to block vote certification in four states that voted for President-elect Joe Biden, the federal investigation of Hunter Biden’s taxes, and more.

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

This podcast is produced by CAFE Studios. 

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

REFERENCES & SUPPLEMENTAL MATERIALS

BILL BARR

Attorney General Bill Barr resignation letter, 12/14/20

“Appointment of Special Counsel to Investigate Matters Related to Intelligence Activities and Investigations Arising out of the 2016 Presidential Campaigns,” Office of the Attorney General, 10/19/20

“Statement of Trump Legal Team on Bill Barr’s Comments on Voter Fraud,” Trump campaign, 12/1/20

“Attorney General William Barr resigns,” CNN, 12/14/20

“Barr Worked to Keep Hunter Biden Probes From Public View During Election,” WSJ, 12/10/20

“Barr Is Said to Be Weighing Whether to Leave Before Trump’s Term Ends,” NYT, 12/6/20

“Disputing Trump, Barr says no widespread election fraud,” AP, 12/1/20

“Bill Barr’s indefensible defense of 2020 voter fraud,” CNN, 9/3/20

“Barr Defends Trump’s Photo Op as ‘Entirely Appropriate,’” NYT, 6/4/20

Deputy AG Rod Rosenstein resignation letter, 4/29/19

Attorney General Loretta Lynch, DOJ

Attorney General Michael Mukasey, DOJ

President Trump tweet, 12/14/20

President Trump tweet, 12/12/20

TEXAS v. PENNSYLVANIA

U.S. Constitution Article III, Section 2, Clause 1

U.S. Constitution, Article I, Section 4, Clause 1

28 U.S. Code §1251. Original jurisdiction

Texas v. Pennsylvania, U.S. Supreme Court, order & statement by Justice Alito, 12/11/20

Texas v. Pennsylvania, amicus brief of New California and New Nevada in support of Texas, 12/11/20

Texas v. Pennsylvania, motion for leave to file amicus brief by 126 U.S. Representatives in support of Texas, 12/11/20

Texas v. Pennsylvania, amicus brief of 17 states in support of Texas, 12/9/20

Texas v. Pennsylvania, Donald Trump motion to intervene, 12/9/20

Texas v. Pennsylvania, Texas motion for leave to file bill of complaint, 12/7/20

New Jersey v. Delaware, U.S. Supreme Court, opinion, 3/31/08

“Standing,” Cornell Legal Information Institute

“Original Jurisdiction,” Cornell Legal Information Institute

“McCarthy joins 125 House Republicans in backing Texas lawsuit challenging election,” AXIOS, 12/11/20

“FBI agents seek Texas attorney general records in Paxton probe,” Austin American-Statesman, 12/10/20

“GOP Texas senator questions ‘legal theory’ behind Trump’s lawsuit to challenge state’s election results,” The Hill, 12/9/20

President Trump tweets, 12/13/20

HUNTER BIDEN

Note From Preet: “On the Hunter Biden News,” CAFE, 12/11/20

“The Glut of High-Stakes Cross-Party, Cross-Administration Investigations,” Lawfare, 12/11/20

“Federal criminal investigation into Hunter Biden focuses on his business dealings in China,” CNN, 12/10/20

U.S. Attorney David C. Weiss, DOJ

Attorney General Bill Barr Resigns 

Barr will be remembered for politicizing DOJ.

Minutes after the Electoral College voted to affirm President-elect Joe Biden’s victory, President Trump announced that Attorney General Bill Barr will be stepping down next week. Preet and Anne reflect on Barr’s controversial stint as Attorney General and read his obsequious resignation letter.

Meanwhile, the Supreme Court rejected Texas Attorney General Ken Paxton’s attempt to block vote certification in four states that voted for President-elect Biden. Preet and Anne break down the Supreme Court’s decision and react to the fact that a slew of states and 126 sitting Republican members of Congress signed onto this lawsuit.

And, Hunter Biden announced that his taxes are under federal investigation by the U.S. Attorney’s office in Delaware. Preet and Anne discuss whether this is an act of political retribution or a legitimate inquiry.

Preet Bharara:

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

Anne Milgram:

And I’m Anne Milgram.

Preet Bharara:

How are you doing, Anne? We got a lot of news.

Anne Milgram:

Lot of news.

Preet Bharara:

But of course, the one big item of news from last week that everyone is expectantly waiting to hear you discuss is your husband’s haircut because you left this hanging.

Anne Milgram:

So first of all, it ended up being a little bit of a test of how long it takes my husband to listen to the podcast because he didn’t say anything. And my mom said something the next day I was like, “Let’s see when my when my husband says something.” So this morning he came in, he was dropping our son at school. He came in and said, “So you’ve been talking about my hair.”

Preet Bharara:

You have been talking about my hair.

Anne Milgram:

So it took him six days to listen. It’s fine.

Preet Bharara:

Do you have a rule about spousal content? There are these debates that rage and sometimes if you produce a lot of content, maybe it’s hard to keep up.

Anne Milgram:

Yeah, you can’t keep up with all of it. Yes, totally. So I basically said to him over the weekend, I have this hair cutting sheers thing. You can tell how professional I’m going to be at this. I have it ready to go. I bought it. I don’t know April, May, but we never used it because both my guys decided to forego a haircut for awhile. So I was like, I should bring it with me because we were in New Jersey and we’re coming back to New York and I was like, “I should bring it with me.” And my husband was like, “Well, Monday is actually just… I can do it anytime after that.” So it went from, we’re doing it Monday to we’re doing it after. So now he tells me this weekend, but it’s-

Preet Bharara:

So you haven’t done it?

Anne Milgram:

No, I’m ready to go.

Preet Bharara:

So is he aware that the electoral college has voted?

Anne Milgram:

Yeah. He’s aware. In fact-

Preet Bharara:

I think it’s a little late. Is he trying to challenge [crosstalk 00:01:50].

Anne Milgram:

No. He said anytime after and then this morning he actually said, “Well, Trump still hasn’t admitted it,” but if that’s the standard, he will never cut his hair again.

Preet Bharara:

I don’t think that’s the haircut standard, I think-

Anne Milgram:

It’s not the haircut standard. Joe Biden is officially the president [inaudible 00:02:05].

Preet Bharara:

Is your husband a Republican Senator?

Anne Milgram:

He is not. He’s definitely not.

Preet Bharara:

[crosstalk 00:02:10]. Is your husband one of 126 house members who signed that [inaudible 00:02:16].

Anne Milgram:

He is not. He’s definitely not, but yes. I think he’s waited a long time. I think honestly he’s a little nervous about cutting his hair, but I think he’s a lot nervous about my cutting his hair, it’s not unfair Preet. [crosstalk 00:02:30].

Preet Bharara:

Are you going to document this for posterity?

Anne Milgram:

Yeah, 100%. I’m also going to do it. I’ve already declared. We have to do it at a time where there is a barbershop open in case of emergency, but I can’t do it Sunday morning when there’s no place he could get his haircut. I suspect the haircuts is going to be a tragicomedy, but we’ll see.

Preet Bharara:

I’m sure it’ll be great.

Anne Milgram:

Yeah.

Preet Bharara:

Because Anne, you do everything well.

Anne Milgram:

Thank you. I’m pretty sure this is going to go in the negative column, but I shouldn’t say this in case he listens before the haircut, I’m going to be awesome.

Preet Bharara:

Are you sure he listened or did one of his friends give him a heads up?

Anne Milgram:

It’s possible.

Preet Bharara:

It’s like your mom, maybe. All right. So all week we’ve been thinking about whether or not Bill BARR would resign, be fired. I intended for us to speculate today about what would happen with Bill BARR, but the speculation is no longer necessary because William Barr attorney General of the United States of America announced actually he did not announce it, he wrote a letter and we’re going to get to the letter in a moment. It’s another one in the [inaudible 00:03:38] of obsequious, ridiculous funding, resignation letters when his resignation was probably desired by the president, but it was announced by tweet by Donald Trump who said the attorney general was leaving. It’s not effective immediately. It’s effective on December 23rd, right before Christmas. Where to begin? Are you surprised?

Anne Milgram:

No. Are you surprised?

Preet Bharara:

I’m not surprised because in recent times we’ve seen, he’s fallen on the wrong side of Donald Trump and there has been rumbling and reporting that he would leave. But if you told me six months ago, do you expect Bill BARR to leave three weeks before the swearing in of the next president? I would have said, “Yeah, that’s surprising.” I haven’t gone all the way back, but we checked and the team double-checked. Loretta Lynch stayed in her post until January 20th of that year. Michael B. Mukasey, who was the final attorney general for George W. Bush stayed until January 20th.

Preet Bharara:

So the precedent is, some people leave months before the end of an administration or a term or a year before, but once you’re there post Thanksgiving and it’s the final weeks and we’re in transition, you stick around until the last day, unless something strange is going on. And there has been speculation, I don’t buy this, but there’s been speculation in Bill Barr’s favor. There was some speculation in the opposite direction, but speculation in Bill Barr’s favor that he wanted to absent himself in the final days because there’s crazy stuff coming down, whether it pardons or self pardons or whatnot, and he didn’t want to be a part of it.

Anne Milgram:

I don’t buy that. Yeah. You know why I don’t buy that? I don’t buy it because the pardon power is the president’s constitutional power and it’s as close to an absolute power as you can get. And the president has not used or relied upon the pardon attorney’s office and the department of justice and obviously Flynn was just pardoned. Roger Stone’s sentence was commuted. I mean, Barr has overseen many of those and so I don’t buy that. I suspect, and actually I will also note that I think that this is less of a big deal than I think a lot of commentators and others do. I mean, yes, he’s leaving a month early, but it’s just a month early. He was leaving either way on January 20th. And I mean, the one thing it is a sign of to me is that there’s nothing that he is currently working on that he feels committed to staying to do and obviously that’s unless he was fired.

Preet Bharara:

Other than to December 23rd because he did say he wanted to [inaudible 00:06:12].

Anne Milgram:

Yes, he’s leaving December 23rd. Yeah. So he’s leaving less than a month early. And so the more interesting question here, I think is, was he fired? This is a complicated thing to go through and I think we should go through some of the ways in which what Bill BARR has done during the past couple of years. And we’ve talked a lot about him. I mean our lead producer noted yesterday that there’s almost not an episode we’ve done where we haven’t talked about BARR. So I think in the context of all this, it’s more interesting to talk about who he was, what he’s been. And frankly, it was in some ways a positive thing to me Preet, because I feel like it’s a harbinger that the department of justice is changing. I think that change is really important.

Anne Milgram:

I think BARR has been overly political in the department. And so he’s on his way out. We don’t know his number two, who Trump is elevating to be the acting attorney general. Jeff Rosen is a civil lawyer. I don’t know very much about him, but he’s got less than a month. And so I feel like this transition of DOJ back to a fully rule of law institution I hope is coming. But anyway, I think people we’re speculating a lot on it. And one other question I had, I just had a question about the timing. I mean, it felt to me like we were watching… We were literally watching Biden be elected president of the United States by the electoral college yesterday, which by the way, was the first time I’d ever seen it, watching all these electors and States canceled out.

Preet Bharara:

It’s usually proforma. The fact that it’s huge news is something and has to do with the president being a denialist, if that’s a word. Other people have joked, like Biden has won so many times that he’s actually going to be the 67th president of the United States.

Anne Milgram:

He is the winningest president [inaudible 00:07:54].

Preet Bharara:

He won in Georgia, like seven times.

Anne Milgram:

It is true. Last night we were calling our six year old to come out and watch it. And he was like, “Again?” It’s like how many times are you going to make me do this? and obviously he wanted to play with Legos. So he had other things to do. But literally the minute it happened, Trump tweets out. I mean, he can’t let Biden have that moment of Biden is the president of the United States. He has to sort of try to control the news cycle. And look, he did for a few minutes. And then I think the responsible news outlets decided to say like, “Look, we’ll talk about Bill BARR later, but let’s stay focused on the electoral college.

Preet Bharara:

Look, that was my personal experience as I told you last night, when the news broke that Bill BARR had resigned, I got immediately called by CNN to come on their broadcast. I didn’t have time to put on a tie or a jacket and I was standing by and I’m watching Anderson Cooper on CNN talk with his guests. And someone said exactly like you said, “Look, this is another example of Donald Trump trying to change the subject from what the really big news is and that is that Joe Biden has won the vote in the electoral college, 306 electoral votes.” And Anderson literally looks back at that person and says, “Well, let’s not let him change the story and change the subject. Let’s go back to talking about vice president Biden or president elect Biden.” And I got texted, “Yeah, I’m sorry for the fire drill. We’re not having you on,” which I totally get and respect. And I have you to talk about it with today for a great period of time.

Anne Milgram:

Yeah, exactly. And there’s plenty of time to talk about Bill Barr’s attorney general. And yesterday I thought it was the day to talk about Joe Biden as president elect. So I’m with you.

Preet Bharara:

Do you think he was trying to avoid being fired? There’s this whole debate about whether it’s better to be fired or to resign? Obviously listeners know where I fall on that divide given my experience, but it could be that, that he knew he was in trouble. The president has been saying nasty things about Bill BARR. The president has been unhappy with BARR. I mean, it’s just another example. The other thing we should say about this whole saga before we go through the litany of Bill Barr’s sins and a couple of things he did the right way more recently is, you can prostrate yourself, you can humiliate yourself, you can embarrass yourself to no end almost.

Preet Bharara:

But if you don’t do everything possible in favor of the president, whether it violates principle, whether it violates regulation, whether it violates your oath, you’re dead to him. And the question a lot of people are asking and that I wonder if these men are asking themselves whether it’s Jeff sessions or some of the people at Fox news or Bill BARR who have ruined their reputations to be thrown in the trash by the same person who they ruin their reputations for, was it worth it?

Anne Milgram:

You know it’s amazing to me that any idea that the president would be loyal, I think it’s… Look, the president is transactional, right? And Bill BARR has helped him enormously in carrying out the transactions the president wanted to carry out whether it was making the investigation to the 2016 election and Russian hacking of the election making that seemed like it was a witch hunt. So discrediting that or whether it was making sure Michael Flynn was not prosecuted. There are a lot of ways in which Bill BARR has gone out of his way. I mean, really, I still think that there are a couple of that that are really stand out in my mind, even above Flynn, which is the Barr summary of Robert Mueller’s lengthy opinion.

Anne Milgram:

Basically, Mueller puts out this report and part one is about whether or not the Trump campaign conspired with the Russians in the election hacking and the release of emails. And the second was whether or not the president obstructed justice and obstructed that investigation. And remember Barr summary, I can remember you and I talking about it basically said, Mueller didn’t find anything, right? And then Mueller had to come out and did something that is extraordinary for Bob Mueller, which is to write a letter saying, actually, you’re wrong, unlike the facts and the conclusions about my report. And later when we saw the Mueller report, it was very clear that Barr in my view had, basically misstated what Robert Mueller had written down.

Preet Bharara:

And delayed it too.

Anne Milgram:

And delayed it, that’s right.

Preet Bharara:

It was both the obfuscation of it, the distortion of it. But then that’s the only story out there for some weeks. So that’s the only thing that gets imprinted on people’s minds.

Anne Milgram:

Yeah, he framed it. Exactly. He put it out before Robert Mueller had spoken, he spoke and he framed it and he sort of set the tone for what the report would say. It turned out not to be accurate, but then a lot of people have to push it back and say, well, that Barr wasn’t accurate, here’s what it really says. And the other example was the Ukraine whistleblower that led to the president being impeached. And you’ll remember that Barr basically said there was no crime and he didn’t even open an investigation. And so Barr has been the president’s bagman and in an enormous way, in my view. So in some ways, is it surprising to me that the president would potentially fire him? No, because again, when the president wanted Barr there for him to say that there was election fraud, or to say that there were investigations into election fraud, that’s where Barr… He didn’t go there.

Preet Bharara:

What’s interesting about that arc that I don’t really understand is on the question of election fraud, Bill BARR went on CNN said to Wolf Blitzer, and we’ve talked about this, speculating months ago to lay the foundation for this narrative that the president you knew was going to rely on and is still relying on even after the electoral college has voted, that there would be massive voter fraud. He said he didn’t have any evidence of it, but he predicted it because it’s common sense. He said, thousands of people from other countries could send in thousands of ballots that were fraudulent member. There was a whole business of the ballots found in Pennsylvania by or near a river. And he exaggerated as you discussed at one point some voter fraud from Texas. So leading up to the election, he was doing all sorts of things to set up the narrative that the president wanted.

Preet Bharara:

He also did this thing where contrary to decades of policy, he was authorizing certain kinds of election investigations even before those elections had been certified. So it’s a little bit surprising to me, ends up being a good thing. But at the end of the day, when push came to shove and he was asked the question, is there substantial or widespread election fraud, voter fraud? He said, no. He said, there wasn’t to a degree that would have affected the outcome of the election. So he did all those other things in favor of the president, which I don’t think were well founded.

Anne Milgram:

He also basically said there was no systemic fraud [crosstalk 00:14:39].

Preet Bharara:

[inaudible 00:14:40] the results of the election, which is what matters. So it’s peculiar. Let’s talk about his other sins in the eyes of Donald Trump. So he says that thing, which is anathema to the president and caused legal luminaries, Rudy Giuliani and Jenna Ellis to rebuke him. And then the other thing, I don’t know how accurate this is, but there’s a US attorney’s office, FBI and IRS investigation into the tax affairs of Hunter Biden, the president elect son. And there was reporting that Bill BARR knew about that some months ago and appropriately legitimately kept it quiet. Doesn’t seem to have informed the White Wouse and didn’t allow it to become public and that might’ve affected the election. And that was another sin against him, right?

Anne Milgram:

Yes. And the president tweeted out very angry. Why didn’t Bill BARR tell us before the election, it would have made a difference in the election. So there’s this fascinating thing where we know that Barr knows there’s an investigation happening into a Hunter Biden potentially as early as 2018 has been publicly reported. We don’t know the exact timing. So there’s this investigation Barr doesn’t talk about it, as you say exactly right, that’s the policy at the department of justice. So he follows the policy and yet he spent all his time working on this 2016, trying to discredit the investigation to the 2016 election.

Anne Milgram:

He’s appointed a special counsel and John Durham to continue. I mean, he’s worded in many ways, the longstanding norms and policies of the department. I mean, the Michael Flynn motion to dismiss is another example. And yet in this really key way, he did not divulge this incredibly… This thing that the president would have been so happy to have heard, right? And really would have used politically. And so there’s a line he’s drawn. And I can’t explain what that line is, but there’s, I don’t know, you call it peculiar. I would almost say contradictory.

Preet Bharara:

Well, it just shows everyone has some line other than Trump. So you put Trump in a category of his own. He has no line, he doesn’t care. And then you have other people who are sycophantic and do the bidding of the president. I put Jeff sessions in that category, but he had a line, which is the ethics officers at the department of justice said for appearance reasons, he should recuse himself from all matters relating to the Russia probe, and he did, right? Even Fox news. So take it outside of the category of particular human beings. Even Fox news propelled Donald Trump, set the agenda in a way that helped Donald Trump play down the virus, did all sorts of other things that I think reasonable journalists should not have done. But then they, from time to time, [inaudible 00:17:26] the truth and they have some line.

Preet Bharara:

And in all of these instances, at the end of the day, they have upset Donald Trump and Donald Trump supporters and they end up earning the most wrath from his supporters at that rally Donald Trump did a couple of weeks ago, the media outlet that was yelled at the most, that was mocked the most was Fox news because they had gone rogue on Trump and Bill BARR, I wonder if part of it. As you and I both, and I will not speak for you, but I was mistaken when Bill BARR came on the scene and suggested he’s an establishment guy. Don’t agree with him in a lot of things and he’s very conservative, but an institutionalist.

Preet Bharara:

And I wonder if part of this, and again, this is all speculation about a hypothesis as they say in Miller’s crossing. If part of this is trying to save his own reputation as an institutionalist, knowing that he’s going down the tubes, knowing that the president doesn’t feel so fond of him anymore, that he ostentatiously did a couple of these things to rescue his own reputation among his friends and colleagues in the Barr. Is that silly or not?

Anne Milgram:

I don’t know. I think Bill BARR threw his hat in with the president and became in many ways, I think the president’s most ardent cabinet supporter. Remember Bill Barr when the president wanted to go to St. John’s Cathedral in Washington, DC, when they had protesters during the black lives matter movement, BARR is the one who had told the law enforcement folks that the square should be cleared. I mean, he denied giving the order at that moment in time, but he admitted that he had earlier in the day said, “Get it done.”

Preet Bharara:

But it was done, right? He is the passive voice in some way to deny responsibility.

Anne Milgram:

Yes, it should be done. I don’t remember the specifics, but it was clear, he played a role in having the law enforcement folks clear that block. And so, he’s been the president’s right hand at a lot of critical times and the president has, I think, a deep disregard for the rule of law. I mean, he just doesn’t… And we’ll talk about it when it comes to the Supreme court and the president’s appointments and the president believing that because he appointed people into positions that they owe him and have to do his bidding. And so, I think Barr has been a loyal Lieutenant. What I think could have happened, and again, we don’t know the inside baseball and we don’t know whether the president fired him, whether the president would’ve fired him, the president certainly, it’s not unusual for him to go on a tirade.

Anne Milgram:

He has tweeted against Chris Ray, the director of the FBI. He has tweeted against the head of the CIA, right? But they haven’t been fired. And so we don’t know, I just want to speculate, but caution, like it’s really difficult to know without reporting on sort of the inside baseball. But I also think it’s possible that Barr got to a point where he realized he could be fired. I don’t think Bill BARR wants to be fired.

Preet Bharara:

Yeah, I think that’s true.

Anne Milgram:

Right? He’s like the ultimate loyalist. He did not make the decision you made, which was like, I’m going to do what’s right and if you want to fire me. Bill Barr has made a decision of like, he staked his reputation on being this president’s most ardent defender and a defender of the president’s vision. And we should talk about Barr’s resignation letter, because I think that’s like, it’s up there with Rod Rosenstein.

Preet Bharara:

Well, there’s a lot of parallels there. So not only Bill Barr not want to be fired and not only did Rod Rosenstein not want to be fired, they also don’t want to hear a crossword from the president. They don’t want to be tweeted negatively about, they want to leave on the best terms possible. And they understand a lengthy, textual, stroking of the ego of Donald Trump would probably cause the president to amicably say, thank you for your service, you were terrific and then move on, which is what happened here. And this letter, boy, it doesn’t think Trump for his sense of humor and the long chats that I think Rod Rosenstein [crosstalk 00:21:28] and get caught in the rain.

Anne Milgram:

Rod Rosenstein wasn’t quite that bad, but it was basically like them.

Preet Bharara:

You mentioned [inaudible 00:21:36], I thought he did getting caught in the rain.

Anne Milgram:

That I always think about it as [inaudible 00:21:42].

Preet Bharara:

I don’t think he mentioned making [inaudible 00:21:44], that is definitely true. Like I said, everyone has a line, even Rod Rosenstein has a line, how far you’ll go.

Anne Milgram:

So this letter. Preet, let me ask you this, who wrote it?

Preet Bharara:

Ivanka Trump. [inaudible 00:22:00] he did write it.

Anne Milgram:

Did Bill Barr write it? You don’t think that the white house gave him some language?

Preet Bharara:

Well, maybe, if the president had given him language, there would be more exclamation marks and it would be less [inaudible 00:22:16].

Anne Milgram:

You know what’s missing from this letter?

Preet Bharara:

Hearts.

Anne Milgram:

When you, when the president fired you, did you send out a note to the employees in the Southern district?

Preet Bharara:

Yeah. In fact, as I sat in my office waiting to be fired and get that call, because I knew it was coming that Saturday afternoon, all that remained was writing a thank you note to the staff and to the lawyers and yeah.

Anne Milgram:

Exactly, what did you say? I mean, you basically-

Preet Bharara:

I said something along the lines of you are the best people I’ve ever worked with and it was an honor and a privilege to serve with you. I don’t have the exact words and I don’t have a copy of the email because then I lost access to the system and have providence I know what you are going to say, go ahead.

Anne Milgram:

You know what’s missing from bill Barr’s letter. He did not thank the men and women of the department of justice a single time.

Preet Bharara:

No. He was compared to them too, what do you compare them to? Preschoolers?

Anne Milgram:

It is so glaring to me. I mean, I read the letter the first time with the Pina Colada lens on of the wow. I read it a second time with, is he running for office because this is a political speech. This is not a lawyer’s letter. This is not a cabinet members lawyer. This is a Rough Rob Trump victory campaign, fundraising letter kind of thing. It’s not at all what you would expect. And then the third time I read it, I thought, God, when I left [inaudible 00:23:40] the single most important thing to me was to say, thank you to men and women of the department, the amazing men and women I’ve worked with. And I am sure I knew before you even said it, that that’s what you had done.

Preet Bharara:

I told the story a number of times the thing that made me the saddest on that Saturday afternoon I was being fired and had to leave the building. And I was in my office with June Kim, my deputy and with Joan Lochner who was the chief counsel who were babysitting me as I was about to be fired. I was very sad because I said, I’m not going to be able to say goodbye to everyone in person. And I was getting a little bit emotional about it and they looked at me and they said, “Well, you can come back on Monday and we’ll let you in the building.” And I’m like, “You will?” And that calmed me down. So yeah. So you and I think have the right sentiments here. Maybe there’s another occasion on which Bill Barr will do it, but the fact that he chose not to say anything about the people in the department who do all the work by the way.

Anne Milgram:

Even one line of thank you. Yeah, who do all the work.

Preet Bharara:

[inaudible 00:24:44].

Anne Milgram:

And there was a lot of “I” about Bill Barr and then there was a lot of “You” about the president, but it’s an astonishing letter and in my view also and I really just cannot believe the letter in some ways and I’ll read the part, but I think he crossed a line that he shouldn’t have crossed and it’s deeply partisan and political in a way that I don’t believe that the attorney general of the United States should be. People disagree. I mean, part of being a lawyer is that you go into court and you argue with people. I mean, there are two sides in every litigation dispute. It’s part of what you do. [crosstalk 00:25:20] Yes, that’s true too, but it’s not personal and it’s not meant to… We don’t vilify one another, right? I mean, we may deeply disagree with other litigants or people who were sort of up against, but the tone of this letter is not that.

Preet Bharara:

Do you think the first draft said dear leader? Instead of dear Mr. President? I think it probably did and then maybe the deputy attorney general or somebody else fixed it for him.

Anne Milgram:

So here’s the lines that I’m particularly focused on, but I want to hear some of your favorite lines, but it says, “Dear Mr. President,” it was written yesterday, December 14th, 2020. And I’m going down to the second paragraph. And by the way, I will also note that the first sentence is, “I appreciate the opportunity to update you this afternoon on the department’s review of voter fraud allegations in the 2020 election.”

Preet Bharara:

He start with that thing.

Anne Milgram:

Yes. And how these allegations will continue to be pursued.” Meaning, “Oh, I may have said, excuse me. I may have said public, there’s no election fraud and that it’s over, but I’m telling you now for the purposes of my resignation letter, that there’s still review going on.”

Preet Bharara:

Will you be my valentine kind of thing.

Anne Milgram:

Yes. And he goes on to say in the second paragraph, “Your record is all the more historic because you accomplished it in the face of relentless and placable resistance. Your 2016 victory speech in which you reached out to your opponents and called for working together for the benefit of the American people was immediately met by a partisan onslaught against you in which no tactic no matter how abusive and deceitful was out of bounds.”

Preet Bharara:

He goes on. Can I read another one along these lines?

Anne Milgram:

Please.

Preet Bharara:

That just appeals to the most aggrieved politician in the history of the world, Donald J. Trump. He says, “Few could have weathered these attacks much less forge ahead with a positive program for the country.” And then he goes, he goes outside of his lane, right? Outside of issues relating to the justice department. “You built the strongest and most resilient economy in American history, one that has brought unprecedented progress to those previously left out.” Is he following the latest news on the economy? Does he understand the unemployment rate?

Anne Milgram:

I don’t think he is.

Preet Bharara:

Is he paying attention to anything that’s going on in the United States of America or in the world? The letter goes on in this vein and look, I think it accomplishes the immediate purpose of Bill Barr which is to pacify the president, leave on good terms, not be mean tweeted at and ride into the sunset. So I guess, good for you, Mr. Barr.

Anne Milgram:

Yeah. But you’re right. I mean, it’s really not a letter about the department of justice, it’s largely about the presidents. And this is why I asked you who wrote it. It’s about the president, what the president would tout as his political achievements, operation, warp speed, military strength, appointing judges, the economy. And so it’s really fascinating. I mean, there is a shout out to law enforcement it looks like-

Preet Bharara:

In paragraph four. It doesn’t come to paragraph four.

Anne Milgram:

Paragraph four and it’s both, it looks like it’s just law enforcement in general who risked their lives to keep our community safe. But that sort of one of the 10 things, you talked about the vaccine, it’s a really, really strange letter and yeah, it’s a really strange letter.

Preet Bharara:

All right. So now let’s do what anchors on responsible television did last night and go back to what’s truly important, not just the attorney general having left a few weeks early and his legacy speaks for itself, but this final case that everyone thought would be mana from heaven for the president and that Jenna Ellis keeps speaking about how they were going to be victorious in the Supreme court. And by the way, this is a Supreme court that has six conservative, six Republican appointed justices, only three by Democrats and three of the nine full third of the court appointed by president Trump himself who believes in these principles of loyalty in one way, not both ways, but one way at least.

Preet Bharara:

And you had this astonishing lawsuit brought by the state of Texas, Texas versus Pennsylvania and basically amounted to a sovereign state in the United States asking the Supreme court as a matter of original jurisdiction to out the votes of four other States that Donald Trump lost and lots of legal commentators, almost to a person proclaim that this was a stupid case that there would be no standing that under principles of federalism and states rights that by the way, conservatives used to be in favor of, other concerns also used to be against frivolous litigation. I guess that’s gone out the window also and said, the citizens of Texas had been harmed by some irregularities they allege in these other States. And I guess if you’re not a legal practitioner and you’ve been trained and socialized to be worried about the things that the president can do and what he can get away with, there was a lot of consternation about that case. And maybe we should take a step back and explain a couple of basic things Anne.

Preet Bharara:

The procedural posture, most cases that are in the Supreme court virtually all except for maybe one or two a year in recent times arises because somebody has a case in a trial court and one side loses and they appeal to the appellate court. And then once I lose is in that skirmish and then it goes to the Supreme court and the Supreme court either agrees or doesn’t agree to hear the case. And in those circumstances, it takes four justices to vote to hear the case. And even then, only a tiny percentage of cases that go to the Supreme court are actually heard by the Supreme court. They just don’t have time to deal with thousands and thousands of cases that litigants want the Supreme court to hear.

Preet Bharara:

There’s another kind of case where the Supreme court has original jurisdiction. And that means that they would be the first court, not the last court, but the first court to hear the controversy or the case. And that’s, for example, in circumstances, when you have States who have fights with each other, and as you may have heard people talk about this over the last week, that happens for example, when two States border each other and they have a fight about water rights, or they have a fight about borders. The kinds of disputes you might imagine. Do I have that essentially, right Anne? And when you were attorney general, did you have fights with other States?

Anne Milgram:

We did. In fact, we had a case of original jurisdiction in the United States Supreme court, and you are completely right that it’s very rare. But we had a case, it was a riparian rights case [crosstalk 00:31:53].

Preet Bharara:

Water, that’s water right? Rivers?

Anne Milgram:

Yes, river. There’s a river between the state of Delaware and the state of New Jersey and BP, the oil company wanted to, I don’t remember all the details, but they essentially wanted to set up some drilling mechanism on the river, on the New Jersey side and the state of New Jersey had, and this was prior to my becoming AG, but the state of New Jersey I believe had sued the great state of Delaware that was then represented by my friend, Beau Biden. And, of course the vice president, the president elect son who’s since passed away from cancer, but Beau Biden and the state of Delaware litigated their case. We litigated our case and we lost to the great state of Delaware in the United States Supreme court. But it was really interesting for me because I sort of was like, why is this case in the Supreme court? And it goes back to the English grant of the river and the land and the river and what state. It was a very complex matter and it really was. And what the Supreme court did in that case is they appointed a special master to make findings of fact [crosstalk 00:32:59].

Preet Bharara:

Can I ask you a question?

Anne Milgram:

Yes. Is this more about rivers than you ever wanted to talk about?

Preet Bharara:

No. [inaudible 00:33:06]. I love rivers. I’m a big fan of rivers, whatever that means [inaudible 00:33:12] pathetic my chit chat has become. So some of the inertia of the Texas suit, not really being believed in, even by people in Texas. John corny made some disparaging remarks about the lawsuit, but it was pointed out that the solicitor general of Texas had not signed the brief, not every state has a solicitor general. It’s a position that’s recently created in some States, including I think New Jersey and not that long ago in New York.

Anne Milgram:

That’s right.

Preet Bharara:

But if the state has an attorney general and you’re bringing a suit like that in the Supreme court, what did it tell you that the solicitor General’s name was not on it?

Anne Milgram:

Yeah. And so the solicitor general is usually the person in charge of the Supreme court litigation, the appellate litigation and really oversees that often on behalf of the attorney general or works with the attorney general very closely on that. The fact that the Texas solicitor general didn’t join is a huge sign of… And by the way, those are usually solicitors. Solicitor general are excellent lawyers. And they’re usually among the smartest lawyers on the constitution, state and federal constitutions. And so to me, it’s a sign that they just didn’t believe in it as a matter of law. And we should talk about this for a second. I mean, I think it wasn’t just Pennsylvania that Texas sued, right? They sued all four States Georgia, Pennsylvania, Michigan, and Wisconsin. And it was a very political lawsuit obviously.

Anne Milgram:

If those States and they were asking for all those votes to be invalidated, which would have pushed Joe Biden below the 270 electoral college votes that he needed to become president. And they did it by asking for a number of things. But the general idea is really that a person sitting in Dallas gets to tell a person sitting in Pittsburgh whether or not their vote counts, right? And it can’t possibly. I mean, literally one state telling other States, we don’t like the way you run your elections. We don’t think that that’s fair and constitutional. It’s really radical Preet. I think we’ve all dismissed it as… We’ve talked about it as lawyers as that’s ridiculous. There’s no basis for Texas to bring that claim and we should talk about why Texas doesn’t have, like, technically the legal term as standing, right? They don’t have a right to basically bring that claim, but it goes beyond that.

Anne Milgram:

I mean, what’s being said is like one state was trying to invalidate the votes of four other States and 126 Republican Congress people joined, 17 other state AGs joined, the president of the United States joined. I think we talked about this for 20 seconds last week, basically saying like, Texas sued without a full understanding of it really was as a legal matter that there was no basis to bring this lawsuit, but it goes beyond, I think. I worry about it as beyond what happened in the Supreme court dismissing it. I worry about it as like a statement that a whole group of the American population is willing to invalidate the votes of other Americans.

Preet Bharara:

Look, even if you’re not a lawyer, if you’re a lay person, just imagine what this would mean if it was a viable lawsuit, that at any time when it doesn’t involve something as tangible as water rights, reporter disputes or something like that, where the people of your state are actually directly affected, which is what you need in order to bring a suit, right? That’s what the standing doctrine is all about. New York can start suing Missouri or Nevada or Arkansas for all manner of indirect in diluted harm, just because they want to. I mean, it’s a path to ruin and it’s a path that is completely at odds with our system of federalism, which once again, I’m going to keep repeating this, used to be a thing that conservatives were in favor of and what you see. Sometimes we talk about particular things that Donald Trump does or stands for, but I think it’s useful to talk about what it means in the sweep of history that Donald Trump is not a conservative.

Preet Bharara:

Then you find a lot of quote, unquote “Republicans,” like those 126 members of the house, they’re about outcome, not about principle. And there are about Trump rather they are conservative Republican principles and standards, at least as historically understood. And so essentially this is another thing that’s important. When the Supreme court basically summarily denied any relief in the case, not even allowing the case to be filed, they said it’s because Texas hasn’t shown standing. Let me read the statement of the court. Quote, “The state of Texas has motion for leave to file a bill of complaint is denied for lack of standing under article three of the constitution. Texas has not demonstrated a judicially cognizant interest in the manner in which another state conduct its elections. All other pending motions are dismissed as moot.” End quote. And the president comes out and says in his buffoonish way, well, it’s a technicality.

Preet Bharara:

Standing is set forth in the constitution itself, what is also set forth in the constitution specifically is that States under our Federalist system decide for themselves the time, place and manner of how they conduct their elections. And so it’s something that is inherent to the power and authority. Now you can disagree with that and you can decide, well, it would be nice if we had uniform standards in the country. And that’s why you have polls closing at different times in different places and different methods of voting in different places. And Oregon is all mail and some places don’t have a lot of male, but that’s in the constitution. And so you can’t undo that and claim that you were harmed in some way in a distant state, because some other States, even though it’s provided for in the constitution chose for itself how to conduct its own elections, right? It’s pretty simple.

Anne Milgram:

Yeah. It’s very simple. And what Texas was essentially saying is that those four States had made changes to their voting laws, whether it was to allow early voting or to allow mail-in votes and that not all of those changes went through the state legislatures that instead and this is very common, that state laws basically give the division of elections and the state itself, the ability to decide the election day is actually held on one day, but the manner in which people can vote, whether it’s mail-in or in-person, whether there’s an allowance for early voting, that the division of elections and the States get to decide that without going back through the state legislature. And so that’s really the crux of their argument is that no, this had to be legislatively done, but that’s actually not the way government works.

Anne Milgram:

Legislatures give grants of authority to executive branch agencies and States and then those agencies make decisions about how they implement the rules that are broader, things that are given by the legislature. And so it really is an untenable view of the world for the state of Texas to say to the state of Pennsylvania, we don’t like how you did your elections. We get to decide how you do your elections. And we’re arguing that you’re not in compliance with [inaudible 00:40:09].

Preet Bharara:

With your own rules, right?

Anne Milgram:

With your own rules, basically. I wanted to read one thing from Texas, the lawsuit brought by Texas or just talk about it for a second, because in addition to the fact that Texas had no standing, they also were basically just repeating the same allegations, the unsupported factual allegations. There were no facts that would support any election fraud that they were arguing and they didn’t bring-

Preet Bharara:

And there’s no evidence once again.

Anne Milgram:

No evidence. And they actually said that the probability of vice-president Biden winning was one in a quadrillion because president Trump was ahead in the early voting. And I just want to know, the first rule of lawyering. And you probably remember this from when you were being trained as a junior lawyer, but I can remember standing up in court in the DA’s office and someone handing you a file that you had to argue literally 10 seconds later and the only instruction that was given to me was, make sure you’re honest about the facts and that you make reasonable arguments based on those facts, right? As straight as you possibly can be, you only have 10 seconds. Make sure you stay accurate. And then you read this and it’s like-

Preet Bharara:

It’s so stupid. As some cranky people who I love were pointing out on Twitter yesterday. During the electoral college vote, there were moments when Trump was ahead in the electoral college vote because of the order in which the state electors were voting.

Anne Milgram:

The votes came in.

Preet Bharara:

And like what’s up with this dump coming from this other state later in the day? But the other thing I want to point out for people to understand why Texas lost its suit, and you’re alluding to it a little bit, is that the Supreme court as we’ve already discussed, will very, very rarely take up a case of original jurisdiction. And one of the basis on which they will do it is if the issues that are presented are no way able to be resolved or decided in some other court. In other words, the only place you can discuss it or adjudicate it is in the Supreme court.

Preet Bharara:

But as you point out the very arguments that are being made by Texas in its lawsuit against Pennsylvania and these other States have been made by Trump and his allies in those States, in those local courts, in those federal courts in those States and they all lost. So the idea that these alleged irregularities can only be addressed in the Supreme court is also as a matter of fact and law false. They’re actually being dealt with in these dozens and dozens of suits in these other States. So that’s yet another reason why the Supreme court rejected it. Now for lawyers and non-lawyers there’s some confusion about whether or not this was a unanimous decision. There is a partial dissent and I’ll read it to you. And then we have a friend and celebrity question along these lines and it’s a good question.

Preet Bharara:

Statement of Justice Alito with whom Justice Thomas joins, quote, “In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction at sites to a case Arizona, California.” Alito goes on to say, “I would therefore grant the motion to file the bill of complaint, but would not grant other relief and I express no view on any other issue.” End quote. And so on the issue of whether or not the complaint could even be received by the Supreme court, it’s seven to two, right? And all three of Trump’s justices that he appointed side against Texas, side against the interests of the president. So that’s significant. And we’ll talk about how we can possibly spin that later. But then the question that comes is, well, do Thomas and Alito think that the case has no merit separate and apart from this technical question about whether or not they have discretion to deny the filing of the complaint.

Preet Bharara:

And I got an email over the weekend and he said I could read the email on the show from Paul Giamatti, who plays the US attorney in the Southern district of New York, Chuck Rhodes on the popular Showtime series, Billions. And so from time to time, Paul will email me when he has a question and I will answer it, but I told him I would answer this question with you on the show. So here’s the question. Paul asks, if you had a moment to explain something, I’d appreciate it defined point of what Alito and Thomas said, I see many different takes on it. They recognize Texas right to bring the case to argue it, they’d have heard it. They also signaled they’d have found no merit in it. So his question goes to this point that I’m raising, what is it that we believe Alito and Thomas are saying about the merits of the case?

Anne Milgram:

Yeah. And I feel that they added unnecessary confusion to this because they didn’t register it as a formal dissent. And so that’s why I think there’s the debate about, is it a dissent? Is it not a dissent? And is it a unanimous opinion? And they didn’t technically register it as a dissent. There are a couple of points to be made. I think the first is that this isn’t the first time that Scalia and Alito have argued this, that all matters at the Supreme court is compelled to take any complaint under its original jurisdiction capacity. That is not the law. It is not been the established law, but they have pushed for that before. And so I think it’s worth saying that, like, this is a bee in their bonnet that they think the Supreme court has to accept, that the Supreme court shouldn’t be just dismissing it and saying, you have no standing, you don’t get to come in.

Anne Milgram:

They think they should have accepted it and then dealt with the further questions. But I do read it to say that they would not have granted the relief. And again, I personally think sometimes the thing that your grandparents always used to say, like, discretion is the better part of Valor. They have this long standing objection, but they didn’t need to state it here. And if they really wanted to state it here, they probably should have written more than essentially two sentences. because they raise these questions.

Preet Bharara:

But you make the point very well. I’m looking back and reading it and I think I should amend what I said because I referred to it as a dissent, I used that word. But the language is statement of Justice Alito with whom Justice Thomas joins. They don’t use the word dissent. And there’s also the case, by the way, in Supreme court practice on things like this. We don’t actually know what the internal vote was. What we do know is there were no recorded public dissents and nobody decided to do that. So I think you can reasonably surmise that there were no dissents, but we can’t know that for certain.

Anne Milgram:

Do you want to hear something interesting?

Preet Bharara:

Yeah. Always.

Anne Milgram:

In the case of New Jersey versus Delaware Justice Breyer recused. So there were eight justices who heard the case and it was-

Preet Bharara:

Did he have an interest in the river or something?

Anne Milgram:

He had some investments in BP, I believe. So he recused and then it was, there were eight justices. It was six, two in favor of Delaware. You know who the two dissenting judges were on my side? Well, not on my side, on the side of the state of New Jersey.

Preet Bharara:

Alito and Thomas?

Anne Milgram:

I think it was Scalia and Alito.

Preet Bharara:

And how did that make you feel?

Anne Milgram:

I just noticed it last night. I think that’s right. I just noticed it last night, I said I was like, “Interesting.”

Preet Bharara:

So I agree with you. And I think most smart people that I’ve either talked to or seen write about this take the language at face value, which is, they don’t think there’s discretion in denying the filing of the bill of complaint. But when you say, but would not grant other relief, the relief that sought is the relief that sought. And if they’re saying they wouldn’t grant other relief, that means what it says. [crosstalk 00:47:33]. It’s not 100% in my mind because why say that? Why say that you’re pre-judging the merits of the case? What’s the point of allowing something to be filed if you were summarily saying in advance of any hearing that you would not grant other relief. And the other confusing part is the third part, which is to say… It seems to me that that’s the sum total of issue, the granting of the motion to file the bill of complaint is one thing and then not granting other relief is everything else.

Preet Bharara:

But then Alito also writes, “And I express no view on any other issue.” Well, what other issue are you talking about? Is that a reference to the merits? I don’t know. So an answer to Paul Giamatti, I agree with you and the others who say it looks like really, it’s a nine, zero probably against any relief here and that they don’t think highly of the merits of the claims that Texas is making, but it’s a little confusing and I can see why people don’t necessarily understand what Alito and Thomas were saying. But the bottom line is, putting aside that little philosophical discussion for Insiders here.

Preet Bharara:

The president of United States has complained about Obama judges ruling against him, has complained about democratic governors and secretaries of state stymieing him. What I don’t understand is why people thought this was going to be a good idea, given the uphill battle and how on earth Trump and his allies can argue that somehow they’re being held back and they’re being hurt when it’s basically a conservative Supreme court that immediately and summarily denied this gambit by Texas. And I guess they’ll find a way, right? It seems to me at the end of the day, they have hurt themselves by bringing all these cases and made a better case for the idea that they lost fair and square.

Anne Milgram:

Yes. I agree with that, particularly with the Supreme court. Look, the president has been really outspoken and basically saying we need to get to the Supreme court. And I think saying in a pretty clear and direct way that he expected the Supreme court, particularly the justices that he had put on to be amenable to his arguments, right? I think he talked a lot about getting to the Supreme court and I think there’s a few points that are worth making. I mean, one is, Biden won by a lot, right? I mean, this is Biden’s victory is decisive. He won by more than 7 million votes. He’s got the most votes of any president, 81 million votes in American history in the electoral college. It’s 306 to 232, that’s a significant victory. And this was a terrible lawsuit. I mean, I’m mocking the one in a quadrillion, but it really is a lawsuit without any evidence or legal theories or standing.

Preet Bharara:

That’s how Trump and his folks are trying to explain it a way. They’re saying basically the court was chicken and they didn’t get to the merits. So they can still say, well, we may have won, but they chickened out and they want us to fight it in some other way. But that’s not an accurate description of how it unfolded.

Anne Milgram:

No, not at all. I mean, I guess my caution is for future elections and for the Supreme court absolutely did the right thing here and there’s no question in my mind, they made the right decision. So Preet, just a couple other quick points. I mean, first of all, I just want to point out that my favorite litigants to join this lawsuit and again there were 17 [inaudible 00:51:15], 126 Republican Congress people, the president of the United States, but my favorites were the, I don’t know, unrecognized territories of New California and New Nevada.

Preet Bharara:

Yeah. I haven’t been to New Nevada. I think I was in New California once.

Anne Milgram:

So these are people from areas of those States that-

Preet Bharara:

[inaudible 00:51:39].

Anne Milgram:

Yes, exactly. That decided they wanted their voices heard. So they made up their own States, which is interesting. And just the last point, which I think we just have to raise is that the Texas AG Paxton is under state indictment. He’s been charged with state crimes for fraud and he’s under federal investigation and I’ve followed this closely. I mean, a number of his top lieutenants in the state of Texas filed a whistleblower lawsuit against him.

Preet Bharara:

His own people, his own staff.

Anne Milgram:

His own people and his senior people, like his right hand first assistant.

Preet Bharara:

I want to dive into your experience once again, beyond just riparian rights. Give me a ballpark figure. How many times did your top staff in the New Jersey attorney General’s office report you to the FBI?

Anne Milgram:

Never not that I know.

Preet Bharara:

Not even one time?

Anne Milgram:

Not even one time.

Preet Bharara:

You must have a lot of integrity.

Anne Milgram:

It’s a pretty extraordinary story about this guy and so I made a number of commentators have suggested that he filed the lawsuit looking for a part in from the president. It’s not clear to me that that’s the case, but I think we need to see. It’s just worth noting that this is an individual who is been charged in state with fraud, that he’s alleged to have done political favors for an ally and have used his power in office as the Texas AG. The whole thing is of a fascinating tale.

Preet Bharara:

Whether or not you think that’s a legitimate reason, it’s one thing to say, well, you have this arguably corrupt attorney general in Texas, he’s trying to get on the right side of the president and get a favor of a partner, whatever elaborate theory you can concoct, that’s one thing. And you can say, well, he did that, et cetera, but it’s not a one-off because as we keep pointing out 17 or 18 other attorneys general who are not in his position, joined the suit in 126 members of Congress. What’s their excuse? I can’t state enough how angry people should be at the legitimizing effect of 120… The majority of the Republican [inaudible 00:53:42] including the leader. Kevin McCarthy signed on to this ridiculous asinine BS complaint that even an overwhelmingly conservative Supreme court said, essentially, this is nonsense. So it’s dispiriting.

Anne Milgram:

Yeah. It’s very dispiriting because it’s more than just signing onto a bad legal theory, it’s signing onto the view that basically, if you don’t like the way the election turns out, you can challenge the way that people in a state that voted for somebody else, the way that they vote. I mean, it’s the whole idea that only the votes of your political party should count. I mean, it is an extreme view of the law and of the United States and of politics.

Preet Bharara:

It’s unAmerican, undemocratic, unpatriotic, it’s un a lot of things.

Anne Milgram:

It’s also assigned to me of just how extreme… How the Republican party has been in many ways. I never thought I would say this, but I did not believe that we’d get to a point in time where the Republican party would do something that is anti-democratic in my view in this way. And so I’m still deeply disturbed by the number of States and congress people who signed on to this, what is a completely frivolous lawsuit that lacked any merit, but also was in principle. On principle, they were basically, one state is trying to tell another state whether or not their vote is allowed to be counted, that can’t possibly be right. And so I agree with you Preet, it’s really, really troubling.

Preet Bharara:

So we’ve gone a little bit long and we didn’t expect Bill Barr to be resigning yesterday. So that took up some time.

Anne Milgram:

And you didn’t expect to the riparian rights story.

Preet Bharara:

I love the riparian rights. I think that’s my favorite story of the hour, but something that we’ll talk about, I think a little bit more in the future, but we should mention, so people don’t think we’re just blowing it off and I wrote about it at some length in my note to Cafe Insiders last week. So obviously we’re aware of it, is this admission by Hunter Biden, president elect son, that the Delaware US attorney’s office and the FBI and the IRS, and we referenced this before with respect to Bill Barr, but that they are investigating his tax affairs.

Anne Milgram:

Hunter Biden tax affairs.

Preet Bharara:

Hunter Biden tax affairs. And as I wrote in my note, we’re at a point now because of the president’s statements, his track record, the way he tries to weaponize the justice department, where it is a legitimate question to ask, is something like this political payback, retribution, retaliation, given how the president conducted himself and people around him conducted themselves with respect to specifically Hunter Biden and the Ukraine affair.

Preet Bharara:

So I think there’s reason to question all of this, but there’s also as I pointed out in my note last week, some reasons to believe that it’s legitimate and there’s a regularity here because of the reputation of the US attorney in Delaware, because of the fact that it was kept quiet and wasn’t utilized politically for last minute October surprise timing in connection with the election. And just because there’s an investigation doesn’t mean anything is going to happen. And maybe the no wrongdoing was committed and no charge will be brought, but on the question of whether or not this is a bonafide legitimate investigation, I think the jury is out because of what’s been going on. But I I will say there’s a lot of reason to believe that it is legitimate.

Anne Milgram:

Yeah. I mean, we should follow this and we should talk more about it. What I liked about your note is that, I think you rightly said exactly what you just said here, which is there are in addition to that it’s a real investigation and that it’s been going on quietly for some time and that there are questions about Hunter Biden’s business activities and his taxes and potential acceptance of gifts. And so I think it’s important that if it is a real investigation, that it be allowed to play out, right? And I agree with you about the reputation of the US attorney David Weiss who is a very good reputation, has served presidents of both political parties. I also share your sentiment that it’s not surprising that there’s a little bit of questioning is this legitimate.

Anne Milgram:

And part of that also just comes from the fact that the president of the United States spent a good chunk of time and sent Rudy Giuliani to Ukraine to try to get dirt on Hunter Biden because of Hunter Biden’s role on the board of a company named Barista. And so I think it’s fair to raise this question of, it was the president’s political goal for a long time, was to discredit Joe Biden by attacking his son Hunter Biden. And so now we have this investigation of Hunter Biden that looks like it may have started in 2018, and again may be completely legitimate, but it’s hard for it not to be colored at least in some way by that. And so what that would mean to me if I were sitting in the US attorney seat, is that, and I’m obviously not, but is that they really have to follow the law and the facts rigorously.

Anne Milgram:

And they have to understand that these are very difficult situations. A lot of Americans will see this through a political lens that president Trump was really very outspoken in his condemnation of Hunter Biden. And so it does look like there could be a political aspect to it. And so again, I mean, you and I are career prosecutors and obviously I want the facts and the law to dictate what happens. But I think that there’s a lot that we’re going to have to watch and pay attention to on this case and that it deserves a higher level of scrutiny because of all the stuff that surrounds it and it just is what it is.

Preet Bharara:

All right. So that’s all we have time for this week. I hope we’re going to get a favorable report of the shearing of your husband’s hair next weekend.

Anne Milgram:

Oh, yes. When you said shearing, I was like, “Sheep?” I will keep you posted.

Preet Bharara:

All right.

Anne Milgram:

Yeah.

Preet Bharara:

So folks, whether you’re an A list Oscar nominated actor like Paul Giamatti or not, we want to hear your questions. So send them to us at [email protected]

Anne Milgram:

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

Preet Bharara:

Take care, Anne.

Anne Milgram:

Bye.

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 Wiener, 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.