• Transcript
  • Show Notes

In this episode of CAFE Insider, former United States Attorney for the Northern District of Alabama Joyce Vance joins Preet Bharara and Anne Milgram to break down the latest politically-charged legal news. 

Preet, Anne, and Joyce discuss reports that President Trump considered appointing special counsels to probe election fraud and Hunter Biden’s taxes, Deputy Attorney General Jeff Rosen’s record, and the massive cyberattack targeting the U.S. government that was allegedly orchestrated by Russia.

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

“Benjamin Wittes’s Guide to Impeaching Trump and Beating Up Putin,” Stay Tuned with Preet, 10/19/17

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

“Undercutting Trump, Barr says there’s no basis for seizing voting machines, using special counsels for election fraud, Hunter Biden,” WaPo, 12/21/20

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

“John Edwards acquitted on one count as jury deadlocks on five others and judge declares mistrial,” WaPo, 5/31/12

SIDNEY POWELL

28 CFR §600.3. Qualifications of the Special Counsel

28 U.S. Code §515. Authority for legal proceedings

“Heated Oval Office meeting included talk of special counsel, martial law as Trump advisers clash,” CNN, 12/20/20

“Trump Weighed Naming Election Conspiracy Theorist as Special Counsel,” NYT, 12/19/20

“Giuliani has pressed the Department of Homeland Security to seize voting machines to examine them,” NYT, 12/19/20

HUNTER BIDEN

U.S. Attorney David C. Weiss, DOJ

“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

JEFF ROSEN

Deputy Attorney General Jeff Rosen, DOJ

“Who Is Jeffrey Rosen, Who Will Lead the Justice Dept. for Trump’s Endgame?” NYT, 12/15/20

“Purdue Pharma Pleads Guilty to Role in Opioid Crisis as Part of Deal With Justice Dept,” NYT, 11/24/20

President Trump tweet, 12/14/20

U.S. GOVERNMENT CYBERATTACK

“Advanced Persistent Threat Compromise of Government Agencies, Critical Infrastructure, and Private Sector Organizations,” CISA, 12/17/20

DHS Emergency Directive 21-01, “Mitigate SolarWinds Orion Code Compromise,” 12/13/20

“Trump Contradicts Pompeo Over Russia’s Role in Hack,” NYT, 12/19/20

“‘Strategic Silence’ and State-Sponsored Hacking: The US Gov’t and SolarWinds, Just Security, 12/18/20

“With Trump silent, reprisals for hacks may fall to Biden,” AP, 12/18/20

President Trump tweets, 12/19/20

SCOTUS CENSUS

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

2 U.S. Code §2a. Reapportionment of Representatives

Donald J. Trump v. New York, U.S. Supreme Court, opinion & dissent, 12/18/20

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

“Ripe” Cornell Legal Information Institute

“Standing,” Cornell Legal Information Institute

“Opinion analysis: Court tosses challenge to Trump’s plan to exclude unauthorized immigrants from congressional reapportionment,” SCOTUSblog, 12/18/20

ALABAMA SEWAGE PLANT WINERY

“Worker Ran Illegal Winery in Alabama Sewage Plant, Sheriff Says,” NYT, 12/21/20

LIN WOOD

28 U.S. Code §1746. Unsworn declarations under penalty of per­jury

Lin Wood v. Brad Raffensperger, United States District Court Northern District of Georgia, complaint, 12/19/20

“Lin Wood Signs Georgia Lawsuit ‘Under Plenty of Perjury,’” Law&Crime, 12/19/20

John Elwood tweet, 12/19/20

What’s So Special About a Special Counsel? 

President Trump once despised special counsels, but now he wants to appoint one to probe election fraud and another to investigate Hunter Biden’s taxes.

This week, former United States Attorney for the Northern District of Alabama Joyce Vance joins Preet Bharara and Anne Milgram on a new episode of the CAFE Insider podcast.

In his latest attempt to subvert the presidential election results, last week, President Trump convened a meeting at the White House of his most ardent allies. Tempers reportedly flared when Trump considered appointing lawyer and conspiracy theorist Sidney Powell as special counsel to probe election fraud. 

Meanwhile, federal officials announced that the U.S. government was targeted in a massive cyberattack, allegedly orchestrated by Russia. One Senator is calling it an “act of war.” 

And, the Supreme Court rejected a challenge to the Trump administration’s policy excluding unauthorized immigrants from House of Representatives seat apportionment. Preet, Anne, and Joyce analyze the implications of this decision.

Preet Bharara:

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

Anne Milgram:

And I’m Anne Milgram.

Preet Bharara:

Happy holidays, Anne.

Anne Milgram:

Happy holidays.

Preet Bharara:

I guess we can call this our special extravaganza holiday special.

Anne Milgram:

Edition, yeah. It’s our holiday edition.

Preet Bharara:

Maybe we call it that.

Anne Milgram:

Yes, Holiday Insider.

Preet Bharara:

And what are we doing to celebrate?

Anne Milgram:

Well, we have a special guest.

Preet Bharara:

We have a special guest, our dear friend, Joyce Vance, who was the United States Attorney in the Northern District of Alabama. Joyce, are you there?

Joyce Vance:

I am. I’m here. I’m glad to be with you guys to celebrate the extravaganza.

Preet Bharara:

Do you know why we have you on in particular?

Joyce Vance:

No, I don’t.

Preet Bharara:

We have you on because we want to see you release the Kraken.

Joyce Vance:

I can release the chicken.

Preet Bharara:

Will you-

Joyce Vance:

That’s about as good as I can do.

Preet Bharara:

On the count of three. On the count of three, release the Kraken.

Anne Milgram:

And the holiday episode goes downhill from here.

Preet Bharara:

All right, so we have a ton of questions for Joyce-

Anne Milgram:

Yes.

Preet Bharara:

… who’s going to carry us through this episode while we sip early morning eggnog. But before we do that, I don’t know, Joyce, if you’re aware. We have an ongoing saga that relates to Anne’s husband and his mane of hair and people tweet and send emails, “What’s going on with the hair? Has the hair been cut? Has it not been cut?” So I have refrained, Anne, from asking about this because I don’t want to spoil the surprise for myself.

Anne Milgram:

Yeah, I mean-

Preet Bharara:

What on earth is going on?

Anne Milgram:

So it is a saga. As you know, he said that he would cut his hair after Biden was officially elected by the electors, and then he got a little bit cold feet, I think, because he was like, “No, I meant after that day, not necessarily on that day.” So we go through the weekend, and I say a couple times, “Look, if you want me to cut your hair,” which, by the way, I’ve never done before in my life, but I bought clippers and little hair-cutting scissors back in, I think, April or May, “just let me know, I’m here.” Nothing, no response, and then Sunday afternoon, he looks at me and is like, “When are you going to cut my hair,” and I was like, “Oh.” Now, meanwhile, the thing you have to do before you cut hair for the first time, you have to watch YouTube videos, a lot of them, because I have no idea what I’m doing. So I was like, “Okay, give me an hour.” So I go in, there’s some crazy hair-cutting videos on YouTube, crazy, and finally I was like, “You know, okay,” and I did it.

Preet Bharara:

You did it?

Anne Milgram:

Yeah, I did it, and he just told me … He just dropped our son off at school and said the people, when he was leaving, did not recognize him. He looks so different and-

Preet Bharara:

Good different? Good different?

Anne Milgram:

I would say, look, we’ve all had to learn a lot of things in the pandemic.

Preet Bharara:

“I would say.” That is not a direct answer.

Anne Milgram:

Here’s my argument. My argument is-

Preet Bharara:

When you begin with, “I would say, look.”

Anne Milgram:

Well, here’s the question. Are you asking when I look straight at him or when I look at him from the side or the back? Because it’s sort of a different answer. Actually, I think it’s pretty good.

Preet Bharara:

How about for a Zoom shot, the Zoom angle? How’s that?

Anne Milgram:

Pretty good, pretty good. I have to say, I got a little into it, and then I realized, “Ooh, maybe I cut a little too much in a couple spots,” and then you have to fix it. But I think it’s very hard. I have a lot of respect for barbers and people who cut hair. It’s not easy, and they make it look easy on YouTube, and I can confirm it’s not. But I’m ready to go again. I’ve already told him, “Come back to the barber shop, to me, in a month when you’re ready.”

Preet Bharara:

Hey, Joyce, our-

Anne Milgram:

There is a spot I want to fix, too, but yeah.

Preet Bharara:

There’s a spot you want to fix?

Anne Milgram:

A spot or two.

Joyce Vance:

I’m so relating to this because I’ve been cutting my husband’s hair in quarantine, and, apparently, I really suck.

Anne Milgram:

I should’ve called you up.

Joyce Vance:

Well, I must be really bad at it because none of my boys will let me do their hair.

Anne Milgram:

I asked my six-year-old. He said no.

Preet Bharara:

Oh, yeah, you were telling us before we taped that you have your four children. Your four grown children are with you at home.

Joyce Vance:

Yes, we have our three boys. One lives around the corner, but he’s here, and our daughter is home from college. So it’s a full house.

Preet Bharara:

And that’s not including the chickens.

Joyce Vance:

Chickens, 10 chickens.

Preet Bharara:

Can you tell us about the chickens? People want to know about the chickens, Joyce.

Joyce Vance:

So our youngest kid is a senior in high school, and he’s been a really good sport about doing school from home. He hasn’t been to school, doesn’t see his friends. We’re very cautious because we’ve got a kid who’s immune-compromised. So he just mentioned that he wanted chickens really early in all of this, and like a good mom, I went out and procured chickens, and six months later, we’re collecting eggs and everybody goes and hangs out down by the chicken coop to drink coffee in the morning, and it’s been really interesting becoming urban farmers in the middle of the city.

Preet Bharara:

You know what’s funny about that? My kids will say that also, but we assume it’s for dinner.

Anne Milgram:

I was assuming it was for eggs.

Joyce Vance:

The eggs are great, but I can no longer eat chicken. I just look at chicken and I feel-

Anne Milgram:

Oh, no.

Joyce Vance:

… sort of vaguely nauseous, like you can’t eat your friends. So that hasn’t been great because we don’t eat a lot of meat as it is and I’ve just sort of ruled out chicken.

Preet Bharara:

What about Chicken McNuggets?

Anne Milgram:

Because they’re really not chicken.

Preet Bharara:

There’s that great joke back when Jay Leno used to be funny that I still remember from 30 years ago. He’s like, “You know how little chicken there is in a McDonald’s Chicken McNugget? You can put it in front of an actual chicken, and the chicken will say, ‘I see nothing here that offends me.'”

Anne Milgram:

Joyce, do all the chickens have names?

Joyce Vance:

You know, they do. They don’t just have names, they have personalities. Because you can go outside and hang out with chickens, which means getting out of the house, I do that a whole lot. So the chickens are my buddies.

Anne Milgram:

And your dog is okay with the chickens? I was a little worried early on about the dog/chicken relationship.

Joyce Vance:

Me, too. We have three dogs, and we don’t let the chickens and dogs hang out together without adult supervision. But I think that they’re pretty good, and so I’ve been luring all of my friends into this, and my former civil chief has a couple of chickens and just is in the process of getting four more, and same deal. Her dog, who’s a really sweet lab, has taken to them very easily.

Preet Bharara:

Do you knit for the chickens?

Joyce Vance:

I haven’t stooped that low yet, but if this goes on much longer, it’s probably coming.

Preet Bharara:

Well, because you’re a great and formidable knitter, as people know, and you showcase your talents on the Twitter.

Joyce Vance:

I don’t know that I’m great. I’m prolific.

Preet Bharara:

Prolific is, I think-

Anne Milgram:

Well, it looks amazing.

Preet Bharara:

… tantamount to great. By the way, speaking of Joyce, [inaudible 00:06:39]. I’m envious of you for a lot of reasons, but one is it seems that Leslie Jones really digs you. She covers your appearances a lot. There was one last night that I tweeted about where Leslie Jones is screaming, “Joyce!” I think she describes it better than I could, and this is how you should be introduced forevermore when you’re going to an event or speaking on stage. Leslie Jones says of you-

Leslie Jones:

What’s up, Joyce? I’m always happy to see Joyce. Joyce always got that verbiage for your ass.

Preet Bharara:

I love your verbiage, Joyce.

Joyce Vance:

I don’t think I could be any more complimented than by that, so maybe I’ll have it made into a sign and just hang it over my desk.

Preet Bharara:

Yeah, or just have that be your ringtone.

Joyce Vance:

But you know how we all live in hopes that our children will actually appreciate us and think that we’re cool? You would think, right, that this would’ve done it for me with Leslie Jones?

Anne Milgram:

Yeah. Saturday Night Live, yeah.

Joyce Vance:

I’m still not cool. My kids, they’re like, “Yeah, Leslie Jones is great. Mom, you’re whatever.”

Preet Bharara:

I got to talk to your kids.

Anne Milgram:

Yeah, I think you’re cool. [inaudible 00:07:50].

Joyce Vance:

Thank you. I appreciate it.

Preet Bharara:

Last week, a couple weeks ago, one half of Cheech and Chong started following me. My kids have no idea who that is.

Anne Milgram:

I was about to say, I saw that.

Joyce Vance:

I saw. You were excited on Twitter.

Preet Bharara:

I was very excited. I’m like, “What is happening?”

Anne Milgram:

And were your kids like, “Who?”

Preet Bharara:

Yeah, they had no idea what I was talking about, no. Wait, so one thing we should announce, we should preview that not only is Joyce a special guest for the once-in-a-lifetime holiday extravaganza episode of the CAFE Insider podcast but also will be a regular contributor. Is that right, Joyce?

Joyce Vance:

I’m really looking forward to that. I think we’re entering this pretty interesting time, right? What comes after Trump? So I’m looking forward to getting to write about that as we move into it. Not to be serious during the extravaganza edition of the podcast, but that is something I’m looking forward to.

Preet Bharara:

We should talk about some issues. Should we get into the serious stuff? But we don’t have to be serious about it. And by the way, one of the reasons I can say … Just right off the bat, I want to say something, right? Because all of these concerns get raised and alarm bells sound and people get worried, is there a way that Trump can steal the election, either through the electors or through these lawsuits and everything else? The answer, I assume, I can go around the horn, the answer is no. It’s all going to be fine, even though there’s still 30, 31 days to go. But it’s going to be a little messy along the way because Trump is desperate and the people around him are kind of pathetic. But it’s going to be fine. Then we can discuss the various things that are going on, but does everyone agree that it’s going to be fine?

Anne Milgram:

Yeah, I agree in the immediate next 31 days that Joe Biden will be sworn in as president, but I do think that there’s lasting damage, and we’re going to see some crazy in the next 30 days. So I sort of feel like, yes, I agree that the outcome will be what you say it is, but I do worry a lot about what’s happening and the damage that is being done just by the fact that the President is staging or trying to stage what would be an undemocratic coup, essentially. So I do worry about the lasting implications. But, yes, I think Joe Biden will be president. Joyce?

Joyce Vance:

Yeah, I agree with you completely, Anne. I think fine is sort of a relative term here. There will be a smooth or maybe a rocky transition of power, but Joe Biden will be the president come January of 2021. If we’ve learned anything, though, in the last four years, it’s that sunlight really is the best disinfectant, and this is not the time to take our eyes off of the ball. This is the time for Americans to continue to be engaged in their democracy.

Preet Bharara:

I agree with all of that. So there’s this crazy meeting reported on by multiple sources in the Oval Office itself, right, attended by the President of the United States, Sidney Powell, his lawyer, Rudy Giuliani, various aides including the White House Counsel, Pat Cipollone, and, I think, Michael Flynn, who he pardoned some time ago. There was a discussion about whether or not martial law could be invoked and whether or not Sidney Powell should be made a special counsel over election fraud. There are divisions, according to the reports, with most people siding against Sidney Powell, including Rudy Giuliani. So my first question to the two of you is when there is a fight and an argument substantively between Rudy Giuliani and Sidney Powell, who should win that?

Joyce Vance:

First, I need to know whether this is a Saturday Night Live set-up or an actual real news story, right?

Preet Bharara:

Alec Baldwin was also there.

Joyce Vance:

I mean, it’s just unbelievable that this is the kind of legal advice that the President of the United States is taking, and I think at some level it’s laughable and it’s funny, but what it really is is pathetic, that when the President doesn’t get or doesn’t like the advice that he gets from competent people, he just replaces them with lawyers who are on the fringes. That’s really who Trump is and how he should be thought about.

Anne Milgram:

And it’s so telling that Giuliani, even this is a step too low for him, right? He’s been a lawyer for the President and a loyalist. He’s like, “No, that’s a crazy idea.” I should also point out that there are two things. One is that it’s very clear that the people in that room who did not agree with Sidney Powell and Michael Flynn basically saying, “You should declare martial law, you should seize the voting machines,” that those folks, that people who oppose these ideas, they immediately went to the press. As you say, Preet, this was reported in multiple news organizations, and so it was clear that they were trying to put that sunlight onto it.

Anne Milgram:

But the other piece that really troubled me is that it was also reported that Giuliani called the Department of Homeland Security and talked with Ken Cuccinelli, who’s one of the senior leaders there, to ask if DHS could impound voting machines, and Cuccinelli rightly said, “No, DHS isn’t authorized to do it.” But even the fact that the President has his outside lawyer calling a senior executive in the Department of Homeland Security to say, “Can you basically go take from states those voting machines,” is really, really disturbing.

Preet Bharara:

And the weird thing to me is you have these people who I think have been somewhat bad actors in the past. That includes Ken Cuccinelli, that includes the White House Counsel, Pat Cipollone, that includes the Attorney General, Bill Barr, who have, I think, said and done things that we have criticized and have enabled the President in various ways. On this stuff, on the eve of the President having to leave office, these are the guys who are saying, “Yeah, no, that thing, that’s a step too far. We’re not seizing any machines, no martial law.”

Preet Bharara:

I mean, the AG … Let’s talk about this for a second, and then we’ll talk about all of it together. We’re recording this on Tuesday morning, December 22nd. I believe Bill Barr’s last day is tomorrow, and in the last two days, he has contradicted the President on a number of things, including saying with respect to the hack that we’ll talk about, it was almost certainly done by the Russians, he’s not appointing a special counsel for Hunter Biden, he’s not appointing a special counsel for the election fraud, and there’s no basis to seize these voting machines. So on his way out, he’s doing and saying some of the right things. I think, Joyce, I saw you on television yesterday characterizing that in a particular way. But what do you think is going on at the end of the term when people who were so enabling of the President in many ways are now putting their foot down, at least with respect to the most recent wild requests?

Joyce Vance:

You know, I have to jump in, though, and say it’s pretty weak sauce, right? It’s not like these people are standing up, defending democracy, expressing outrage at the thought of trying to engage the military or take voting machines into custody. It’s sort of a very quiet no, a very quiet pushback against the President at a point in time where I think what Americans need to hear from their leaders and particularly from these folks around the President who know better that this isn’t normal, that it’s not acceptable, that it’s antithetical to how our government works. So the fact that Bill Barr, sort of at the eleventh hour, discovers that the world is round and says that is not all that impressive to me, right? It’s clear that there’s no rationale for appointing a special counsel when there’s no conflict of interest with DOJ investigating.

Joyce Vance:

And, look, Preet, you and I were both around. The John Edwards investigation started before the Obama Justice Department came into place. There was a Republican US attorney in North Carolina who was running that investigation. He continued into the Obama investigation and took that ill-fated case, which ultimately didn’t result in a conviction, but he carried it through to indictment and did it. There’s just no reason here to talk about a special counsel. So Bill Barr saying, “Well, not now, we’re not there yet,” is pretty weak sauce.

Anne Milgram:

Yeah. It sort of falls under the category of you don’t get points for doing the right thing, and this is definitely one of those examples where … But it’s also such a sign of where we are in our country that I think we all felt a little relief yesterday when Barr said it. So, again, I think Joyce is right. There’s no basis for a special counsel on election fraud. There’s no basis for a special counsel on Hunter Biden, right? I agree with all that, but I did feel a little relief yesterday and a little bit, “Well, at least Barr is saying what we know is true,” but yet some people need to hear it, I think, from him that the President has really gone so far beyond anything that’s democratic and fair.

Anne Milgram:

The other point I would just make is I keep going back to the fact that people are saying no but Joyce is right, I think you’re right, that they’re saying it quietly. But it’s also like just the fact that the President is trying to do this and that people are pushing for this when, again, there’s no evidence of election fraud, systemic election fraud, to then go out and have a special counsel, it’s really disturbing to me that we’ve come so far into such a polarized universe that this is the framing of the conversation that Barr has to actually go out and say no.

Preet Bharara:

Yeah, look, I think it’s no longer true that Trump is just trying to create a narrative. I think he’s trying to create a narrative about how the election was stolen from him, but I think he’s also trying to see if it’s possible, hope against hope, to stay in office. There are crazy people, and I think we can call Sidney Powell along those lines. There are people who are telling him, “You can take the election back,” and he’s listening to them because he’s hoping it may be true, and it’s a measure … And I agree with everything you said, Joyce, about how it’s weak sauce. But it’s measure, I think, of how crazy the newest requests and steps are that these erstwhile allies of the President are saying no.

Preet Bharara:

I’m going to drill down for a moment on one of the special counsel issues, Sidney Powell. I don’t know quite what that means. Do we all agree that to be a special counsel with the powers and authorities and privileges that come with that job, like Bob Mueller had, that is an appointment made by the attorney general pursuant to particular regulations? And if Bill Barr doesn’t do it, and he said he wouldn’t, and if the incoming acting attorney general doesn’t do it, Jeff Rosen, then I guess it’s the case that the President, he can give someone a title if he wants, any title he wants. If he chose to say, three days from now, you read it in the news, Sidney Powell has been appointed special counsel on election fraud, but that appointment is made by the President himself, what does that mean? She wouldn’t have grand jury authority. She wouldn’t have other compulsory process. She wouldn’t have anything. She would just be a figurehead, right? So if you read about that in a few days, should people be worried or not?

Joyce Vance:

You know, it seems that she’s more likely to become the White House counsel than anything else at this point, although Rosen is sort of the wildcard here, right?

Anne Milgram:

Yeah.

Joyce Vance:

We don’t really know what he’s inclined to do. The reality, though, I mean, there’s not a lot of time left on this administration. So let’s say Trump, who’s so respectful of the rules, appoints her special counsel in some crazy way. I’m not sure that she has a lot of time to do anything, particularly because there would be a lot of drag from the courts, from people inside of Justice, maybe from outside stakeholders. So we may be close enough to the finish line that it’s not dangerous.

Anne Milgram:

I mean, there really isn’t a lot of time left. This week, I think, obviously, is a holiday week, and next week as well, and people can be working, but I think a lot quiets for a week and a half. Then January 1st, January 4th is the first Monday back. It’s really just a couple weeks until Biden will be sworn in. I do wonder about Rosen, though, right, because Bill Barr had suggested he come in as the deputy AG. He’s a longtime civil lawyer. He doesn’t have criminal prosecution experience. He’s done anti-trust work, and so I wonder … It’s a really interesting moment. The President is going to put pressure on him, I think, like nobody’s business, right? So Bill Barr says, “This shouldn’t happen,” and he’s sort of setting the table. But now it’s Jeff Rosen’s table, and so I am curious to see where he goes with it and what he does and whether or not he stands up to the President.

Anne Milgram:

I will confess, guys, I was like, “Is it possible the President would fire him? Is it possible to be fired as AG or told to step down with three days left in the term?” Anything is possible, so I guess the question is how Rosen plays it and whether he’s strong or whether he caves and if he caves, whether or not he’s able to turn the apparatus of the justice department to that effect. I really don’t think he will be able to with the amount of time left and with how the lawyers at DOJ know that there’s another boss coming in. We don’t know who it will be yet, but I feel like that does also change the way people in executive departments function.

Joyce Vance:

I think that’s right, and I remember when Rosen was first nominated, and the vibe inside of DOJ but also among alums was, “How do you take a guy who’s never tried a criminal case, who doesn’t know anything about the criminal side of the operation, and make him the DAG?” And, Preet, a friend of ours who was still at Justice then but who’s no longer there said to me, “Well, he has really good managerial experience managing big organizations, and that’s really all that a DAG needs.” So our friend was comfortable with his nomination on that basis. To me, that seems to be an important skill for the DAG but not the reason you choose someone for that job. They have to really understand pressure, how to withstand pressure, integrity, and independence from the White House and other sorts of pressure.

Anne Milgram:

I agree with that. I think it feels to me like the DAG should always be a former prosecutor in a sense because I think the most important thing you do is say no when you’re a boss and to know when you push forward and when you don’t. I think it’s really hard if you practice civil law your whole career to make those decisions with pressure from the White House, with competing demands of law enforcement and prosecutors. It’s really difficult.

Preet Bharara:

Yeah. So Bill Barr decided to leave 27, 28 days before the end of the term, which is unusual. Anne, you and I talked about this last week. The one thing we didn’t discuss as a potential reason is that maybe Bill Barr, unlike Jeff Sessions, has some modicum of self-respect, such that why keep going to work when you’re being yelled at by your boss publicly and humiliated and mocked and criticized? Do you think that has something to do with it? And, dare we say it, would you be more comfortable at this point, given what Bill Barr is saying, with Bill Barr staying till the end versus Jeff Rosen?

Joyce Vance:

Well, things always seem to get worse with Trump, right? You think that, “Oh, Jeff Sessions is leaving DOJ, maybe things will get better,” and then you get Matt Whitaker.

Preet Bharara:

Right.

Anne Milgram:

Yeah.

Joyce Vance:

But that said, this seems rosy and optimistic, Preet, and I think I’m ready for Bill Barr to leave the Justice Department. He’s done enough damage to the institution that we love for one lifetime.

Anne Milgram:

Yeah, I think there’s probably a reason that wasn’t one of our options last week. It didn’t come to the top of either of our minds.

Preet Bharara:

Look, I think it’s a mix of things, and one of them is, yeah, if you’re … I remember saying this, and I said this on Stay Tuned last week. When Jeff Sessions was being criticized publicly, I asked one of the guests, I think it was Ben Wittes at the time, for how long would you continue to come to work if you were treated like that publicly by your boss? Both of our answers were, no, I would not come back to work tomorrow. So I wonder if that was part of what was going on.

Anne Milgram:

I don’t know. You know, the reason I question that a little bit is that I think … Yes, I think Bill Barr served the President, but I also think he’s had his own agenda of the power of the presidency and his own view of the world that he’s executed day in and day out, and I think he’s felt like the power of … I think he’s wrong, but he’s felt a strong level of conviction about what he thinks the Department of Justice should be and how they should lawyer for the President. So I don’t know. I just am not so sure that that’s why he left.

Anne Milgram:

I would be more inclined to think it’s because the President was really saber-rattling about firing him and that he did not want to go out fired or that he decided he’d done everything he wanted to do. It could also be … Look, I will grant this, Preet. It could also be that the President said, “I want you to do a special counsel,” or, “I want you to do something,” and they just were at loggerheads over it and that’s the moment where Barr basically decided, “I’m going to fight this out for the next four weeks.”

Preet Bharara:

Right. And Barr probably said, “No, I won’t do that thing.”

Anne Milgram:

“I’ll just do it publicly.”

Preet Bharara:

… “But I’ll write you a sycophantic love letter masquerading as a resignation letter,” that we had some fun with last week. Can we talk about the other special counsel issue?

Anne Milgram:

Yeah.

Preet Bharara:

And, Joyce, I take your point that there’s not necessarily a conflict of interest at this moment. But if the Delaware US Attorney continues with the investigation, Joe Biden takes office, now you have the Joe Biden Justice Department with his newly-appointed attorney general overseeing the entire department, including the Delaware US Attorney’s Office, where there’s an investigation of his son. Is it actually crazy for people to ask the question, “Should there be a special counsel in the Hunter Biden case, given the closeness to the President?”

Joyce Vance:

That seems to me to be an entirely different question. I think if you’re really serious about underlining the integrity and the independence of the Justice Department from the get-go and you’re the new attorney general, Preet, which would be sort of nice, you look at that situation and I think it’s going to be tough to not decide to have a special counsel, not because there is actual conflict or actual impropriety, not because the DOJ machinery can’t handle the case, but just to make clear to the public that commitment to integrity and to being the opposite of everything that the Trump administration has demonstrated when it comes to how DOJ’s been used to handle investigations that are close. So it may well be at that time that the next attorney general decides to appoint a special counsel.

Anne Milgram:

And, look, for the next attorney general, Preet and I have talked about this a little bit. This is a really difficult situation because Biden has said, and I take him at his word, that whoever he selects as the attorney general will do their job in the criminal sphere and Biden will not interfere. But it’s also the president’s son. It is distinct in some ways from the actual president being under investigation, which sort of triggered the special counsel in the follow-up of the 2016 election, but it’s still the president’s son. So there’s an argument that it’s also better for the attorney general to farm it out to a special counsel and have it done that way or, frankly, just to put the Delaware US Attorney in a position where they stay, where he stays, and in some way he’s responsible for this investigation and is unhindered in his ability to do that.

Anne Milgram:

One thing I will say on the special counsel question is that I do worry about one piece of this, which is that it can’t be enough … And I’m not saying any of us are saying it, but I have heard some commentators that make it seem like one political party can’t investigate a politician of another political party or someone connected to … If you’re the party in office, you can’t prosecute someone of your own political party. That turns out really not to be the case, and I think just from history and from my own work and from all of your work … Look, when I was AG, the Democrats were in power. We did more political corruption cases against Democrats than Republicans because they had access to the money and the power, and that’s part of the job.

Preet Bharara:

Yeah, same in new York. Same in New York when I was United States Attorney. So I agree with all of that. And, Anne, to your point, the choices that the Biden administration will face include appointing a special counsel or leaving the Delaware US Attorney in place or elevating the Delaware US Attorney to the position of special counsel, in the same way that Barr did with John Durham and others have done in the past. People should remember another thing. Just because you wave a wand and say special counsel doesn’t mean that that person is necessarily independent or special in any legal or reputational way, right? It depends on who it is.

Preet Bharara:

So if the perception is that the Delaware US Attorney is a fairly independent career person, and, Joyce, I’m curious if you have heard anything about that gentleman, if that’s the perception of him, you could see the Biden administration shooting themselves in the foot by appointing some other special counsel who’s maybe not viewed as favorably or not viewed as independently. Then it looks like not a move to insulate the investigation and protect the investigation and be independent and equal before the law, but then it looks like you’re replacing somebody who was doing a good job with somebody who maybe will not for the protection of the Vice President’s son. So I think the particulars of who you put in that position are really important. I don’t know the Delaware US Attorney, and I think, Anne, you don’t either.

Anne Milgram:

I don’t.

Preet Bharara:

Joyce, do you have any observations?

Joyce Vance:

You know, what I know is that he’s career. He’s been in the office for a long time. He was the first assistant to the Obama US attorney. This is what Anne is talking about, this notion that prosecutors have to be apolitical, because, look, by and large, everybody in this country is either going to be a Democrat or a Republican, and what the public needs to understand is what we all instinctively know, which is that prosecutors set that aside when they walk in the door. That seems a little bit naïve and almost Pollyanna-ish after we’ve lived through this politicization of everything, including public health, that’s going on in this country.

Joyce Vance:

But that was the reality in my office. I bet it was the reality in both of your offices. The first public corruption case I did as a US attorney involved Democrats, and you follow the law and you follow the evidence and you do the right thing, and it doesn’t matter who people are. We do need to restore that ethic and that sort of confidence that the public has that that’s how prosecutors operate. I think it’s going to be tough when the first case in the door involves the president’s son. So the next attorney general will have to make some really tough deliberate choices here.

Anne Milgram:

Do you guys think … I’ve been thinking about this a little bit recently about DOJ generally, and we’re all alums, and we love the institution. I’ve thought a little bit about does there need to be a process, whether it’s from the incoming attorney general or whether the incoming attorney general creates a separate process for this, of just bringing, as you were saying, Joyce, sunlight to the ways in which the institution has been corrupted in terms of the rule of the law and the places where there needs to be changes, whether it’s to the special counsel regs or whether it’s to how Office of Legal Counsel opinions are handled? I just wonder, does there need to be some reckoning over the last four years and the institutional damage that’s been done to the department, or is it enough just to have a new attorney general who turns the page and sends that message to the men and women of the department and hopefully to the country?

Joyce Vance:

I actually have an essay coming in the Yale Law Journal, the online version, that argues that each of the US attorneys, the 93 US attorneys across the country, will need to reengage with their communities and go far above and beyond what we’re used to doing, even what folks at DOJ are comfortable with doing, to help their communities understand the level of integrity and independence and the way that they operate and really get rid of this veil that tends to cover the way we operate inside of our offices. Look, a lot of what we do, specific cases, stuff that goes in front of the grand jury, that always has to stay opaque. But we need to learn to talk more to the public about how we operate, why we do what we do, what our rules are, what our priorities are because DOJ can’t work as an entity unless the public has confidence. When DOJ makes tough calls that really are going to make half of the community angry or disappointed, it’s so important that they have confidence that whether they agree with a specific call or not, they know that it was made properly.

Anne Milgram:

Yeah, I so agree. I actually think this is also true of local police departments. I have this conversation a lot, which is, look, some things must be confidential because they’re investigations and they’re individual cases, but there are bigger issues and processes and ways that priorities are set and decisions are made that can be so much more transparent, and that it really is important for communities to see some of that. Yeah, I think it’s a great suggestion.

Preet Bharara:

Should we say anything more about Jeff Rosen, or is he sort of a black box? I mean, there are some people who discussed the fact that he’s somebody who looked like he weighed in on the side of Paul Manafort when he was going to go to Rikers Island. He seemed to have been one of the key figures who pushed for charges against Andy McCabe, the former deputy director of the FBI, and the grand jury reportedly didn’t buy it and wouldn’t agree with the indictment, the charges in the indictment. Anything else we should think about for this very short-serving next acting attorney general?

Joyce Vance:

So I’ll just go out on a limb here since that seems to be what I’m doing today.

Preet Bharara:

Release the Kraken.

Joyce Vance:

Here’s the Kraken. Like y’all, I’ve been following the Purdue Pharma cases and the issues involving opiates and how they were pushed out in the communities and whether there needs to be some liability there. Rosen seems to have weighed in against some of these cases. I don’t think that this full story has been told yet. In hindsight, though, I think that we will see that he was probably the wrong guy in the wrong place at the wrong time when it comes down to making communities safer and holding people who deliberately flooded some of our communities with opiates. He did not play the role a deputy attorney general should’ve played in getting those cases moving.

Anne Milgram:

So, Preet and Joyce, during the last week we’ve seen a lot of attention being paid to a cyber hack of the US government that looks like it’s possible it began over a year ago and the hack, at least, has been going on for months through a Texas software company called SolarWinds.

Preet Bharara:

And so as we talk about the hack, we should read a listener question we got from Kathleen in Maryland, who says, “Hi, Preet and Anne. Seems as though we don’t know a lot about the Russian hack of five government agencies. Do we just wait for President Elect Biden to clean up another mess? Are there repercussions for the current administration if they have really done nothing to figure it out or fix it? Thanks, and happy holidays, Kathleen.”

Anne Milgram:

And it’s now been reported that a number of government agencies were infiltrated, the State Department, the Treasury Department, the Los Alamos National Lab. It goes on and on. This is the first cyber attack that I think people, other than the 2016 election, the hacking from Russia … But this one feels to me like it’s different in the sense of how much public attention it has garnered. So I think the question really is is there a problem in the United States that we were not able to defend against this? The related question, I think, which we don’t have enough information necessarily to answer yet, is really what does the US do in response to it? In part, I also think it’s important to talk about because I think it is the world we live in. There’s cyber hacks happening all the time. It’s now been identified as Russia. At least publicly, Pompeo has said he believes it’s Russia, Bill Barr has said he believes it’s Russia.

Preet Bharara:

But not the President.

Anne Milgram:

But not the President. But not the President.

Preet Bharara:

And it’s never Russia.

Joyce Vance:

Some 400 guy.

Preet Bharara:

The 400-pound guy who’s Chinese and is in Albania.

Anne Milgram:

Yeah.

Preet Bharara:

It could be that guy. Prove it’s not.

Anne Milgram:

What do you guys think of this? I feel particularly passionately about this because I think we’ve actually failed to convey to people how much of a cyber world we live in and how important this is long-term for the US government to be really good at fighting off these attacks and also being willing to hold other countries accountable when they engage in them. But I’d be curious to hear what you think.

Preet Bharara:

My quick thought on a very macro level, because we prosecuted some of the biggest cyber hacks and cyber cases in the world when I was US attorney, and depending on the nature of the hack, it doesn’t freak people out as much as it should because in a lot of these instances, regular people don’t see a direct impact. They don’t see the harm. They don’t see dead people. They don’t see a loss of money in their bank accounts. Now, when there’s cyber hacks that result in that kind of direct loss, tangible, understandable loss, people get upset about it and they understand the gravity of it. But when millions of personnel records are hacked into and find their way into other countries’ hands or into hackers’ hands, it’s a little bit harder. It’s a little diffuse. It’s a little bit more difficult for people to get a handle on what was so bad about it.

Preet Bharara:

Here, we’re talking about something that Chris Coons, by the way, using pretty bellicose language, he said, quote, “It’s pretty hard to distinguish this from an act of aggression that rises to the level of an attack that qualifies as war,” end quote. Well, that may be true, and that may be the right way for policy leaders and law enforcement officials and intelligence officials to think about it, but that’s not necessarily something that comports with how ordinary people think of it because they haven’t seen bombs, they haven’t seen any deaths, they haven’t seen any casualties. So I think there’s a fundamental public perception problem, even when alarm bells are being rung.

Preet Bharara:

Then you have the second dimension of this, which is deliberate confusion over who the rival was who caused this to happen, and you have the President of the United States, who’s incapable of saying anything negative about Russia, all evidence to the … I mean, here’s a guy who says, based on nothing at all, that he won in a landslide and there’s overwhelming evidence of election fraud and voter fraud in the 2020 election, and yet on the other side of the coin, when there’s substantial evidence from his own intelligence agencies that Russia is the author of this thing, he says, “No, it could be China.” That, I think, further makes it hard for the public to fully get a handle on who the bad guy is and what to do about it, and as we’ve been saying throughout this program, there’s not a lot of days left for Trump to do something about it, and so Joe Biden will have to act, right?

Joyce Vance:

I think that’s right, and I bet like y’all, I was always taught that in these situations your job as a law enforcement leader was to get out there fast and to make sure that everything that you said was accurate, right? You had to educate the public. They had to know what the problem was. They had to know what was going to happen. So we’re seeing Trump do everything he can do to counteract what his administration should be doing. I know people love to say that it’s just naming and shaming, but it’s important to identify the wrongdoer, to talk about what you know, to be candid about what you don’t know, and to talk about what you’re going to do. We’ve seen none of that from this administration. In fact, it almost leaves you with the impression that Trump just wants to dump this problem onto Biden, let it get worse by about 30 more days of inaction, and see what Biden’s going to do about it. It really is very distasteful.

Preet Bharara:

So one other bit of news, and I’m glad we have Joyce here to talk about it with us, the ongoing saga of the census case, right? Remember, the controversy has been for a long period of time that this administration doesn’t really want to count all people who live in the country, and the census, as has been understood based on the text and tradition, it’s always been true that for purposes of figuring out the population, you count everyone, not just citizens, not just people with green cards, but everyone regardless of immigration status. But this administration, the Trump administration, has made it its mission to figure out a way not to count people who are out of status. So that fight has been going on back and forth throughout the courts for, I guess, a year and a half, two years now, and there was a final bid in the Supreme Court, and the Supreme Court did what? Joyce, do you have some involvement in the census issue?

Joyce Vance:

You know, I do. There’s actually a parallel case in federal court in Alabama, where the state of Alabama and Congressman Mo Brooks sued the Department of Commerce to prevent them from counting people who don’t have legal status in this country. So the notion is just pretty simply this. If you count people who aren’t citizens, then states like Alabama will lose seats in Congress, those will get transferred out to states that have higher populations of undocumented people, and folks like Alabama Congressman Mo Brooks think that that’s a bad idea. I’m the local counsel in Alabama for the New York State Attorney General, who’s intervened in the case along with some of the other states’ attorneys generals, and it’s a pretty interesting set-up, right? Because if you’re an originalist, if you read the Constitution and want to take it literally, the Constitution pretty clear directs that you should count people, not citizens, and we have some confidence that the founders understood that there was a difference in the use of those two terms.

Anne Milgram:

Yeah, it’s so interesting. I think the precedent definitely falls very heavily in that way, and, by the way, we’ve always counted people, including undocumented individuals as well. What’s really interesting about this case to me and, basically, what the court said is, “We’re not going to decide it yet,” and so the Commerce Department has to send a report to the President by December 31st basically giving them the total population by states. Then the President is supposed to send a report to Congress by January 10th, and the Constitution says that that report would contain the whole number of persons in each state.

Anne Milgram:

So what’s really interesting about this is that the President had directed Commerce essentially to give him two numbers, which is, one, the number of all people, including undocumented individuals, and then the number of undocumented individuals to the extent that they could identify that with taking those folks out, with the idea, again, being that you wouldn’t get seats in Congress or that you’ll get fewer seats in Congress if you have fewer people and not counting undocumented workers and individuals would lead to states who have high populations of undocumented individuals not getting funding to cover those individuals in addition to. It’s not just congressional seats, it’s also funding.

Anne Milgram:

What’s really interesting about the court decision, this is a long way to say this, is that the court basically said, “Look, this issue, it’s not right for us to decide yet. The case is not properly before us because Commerce hasn’t yet done that, and we don’t even know at this moment in time whether Commerce will be able to do it and how they’ll do it.” So, basically, the court is saying, “We don’t even know whether they’re going to be able to calculate the number of undocumented individuals,” because remember that the court had previously said that Commerce couldn’t ask that question. They weren’t able to ask people whether they were documented or undocumented, so now they’re using administrative data to try to figure this out. Basically, the court says, “The issue isn’t properly before us yet.”

Anne Milgram:

What’s really interesting to me and I was thinking about is the court just decided the religious freedom case in New York where, remember, the Roman Catholic Diocese of Brooklyn and one of the synagogues had sued Governor Cuomo, basically saying that his COVID-19 health restrictions on the number of people who could be present in religious facilities, religious organizations, churches, mosques, synagogues was too restrictive and violated both the First Amendment of the Constitution and some other rights. Even though that restriction wasn’t in place at the time, the court struck those down, so the dissent in that case was basically saying, “This issue isn’t properly even before us because those restrictions aren’t in effect right now, so there is no deprivation of religious liberty.”

Anne Milgram:

Then you contrast that now with this case, where the court is saying, “Oh, the issue isn’t properly before us, there’s no constitutional violation or other problem yet.” So it just feels really inconsistent to me, and the same folks are in essentially the majority or many of the same folks are in the majority on both cases. I just point out the inconsistency. I guess the bigger question is, obviously, if they count population by eliminating undocumented people, the case comes back to the Supreme Court. It’s really not over, and I guess the bigger question will be what the court does ultimately if the Trump administration takes that approach.

Joyce Vance:

You know, I really read this opinion as an effort to not buy trouble until they have to. The court seems to be optimistic that Trump won’t be able to follow through on his intentions, and in that case, they get to sidestep what they probably see as a very difficult, problematic issue for a lot of reasons.

Anne Milgram:

And the court usually tries to do that when it can, so it makes sense in that way.

Preet Bharara:

So in the interest of the holidays and mirth and joy, I thought we would end this special festive holiday episode talking about a couple of cases. There’s one case that came to our attention apropos of Joyce’s participation because it’s from Alabama and it has to do with the prohibition of alcohol sales. Joyce, do you want to tell us about that case?

Joyce Vance:

So there’s a waste water treatment plant in Rainsville in DeKalb County, Alabama, and it came to light, don’t know how, don’t know why, but apparently there was a tip to police that they should go take a look at this waste water treatment plant. They get there and, lo and behold, they find that there’s a wine-making operation.

Preet Bharara:

There’s wine-making at the waste treatment facility.

Joyce Vance:

You all laugh, but moonshine-making, that’s a traditional Alabama enterprise, and it’s not something to be laughed at, right? Making good moonshine, or in this case wine, can be a serious family tradition. But I guess the concern … Rainsville’s a small town, I think a little bit more than 400 people. So a lot of concern about whether the same equipment that was being used to treat waste water was being used for wine-making, there was general relief in the city when it was publicly made known that there was no overlap of equipment, that it was just convenient space, apparently.

Preet Bharara:

Do you know if the facility aged the waste water in oak barrels?

Joyce Vance:

You know, we all breathed a little sigh of relief when we learned that that wasn’t happening, Preet. And no oak barrels. I mean, come on, this is serious, modern, purely plastic wine-making operation.

Anne Milgram:

By the way, I love that it was the supervisor of the Rainsville waste water treatment plant who was the individual that was running this operation.

Joyce Vance:

Long-time employee, apparently, with a spotless record, but no word on how good the wine was.

Preet Bharara:

Would this be wine that is served in a bottle or in a box?

Joyce Vance:

I think it comes to you in a little glass Mason jar with a lid on top.

Preet Bharara:

I see.

Anne Milgram:

How do you know that?

Joyce Vance:

Not that I have ever seen it. Not that I’ve ever seen-

Preet Bharara:

Joyce.

Joyce Vance:

… moonshine. But, really, this is sort of an old-timey Alabama thing, and I remember there was one old moonshiner who used to get arrested every fall as the weather got to be cold, and he would come down to federal court and Judge Allgood, one of the old judges on our bench, would put him in federal prison until it warmed up again on the other side of winter and he would come back out. The first year after Judge Allgood had passed away, this fella came down to court. I wasn’t in the courtroom, but the story in my office went that as soon as he saw that Judge Allgood wasn’t on the bench, the defendant looked up and said, “Where’s Clarence,” and everybody in the courtroom cracked up because there was a relationship between law enforcement and the folks that made moonshine, maybe even to the point of drinking some of it and knowing that it came in Mason jars.

Preet Bharara:

Wait, you say his name was Judge Allgood?

Joyce Vance:

Judge Allgood.

Preet Bharara:

If I were a criminal defendant, I would like to be sentenced by Judge Allgood.

Joyce Vance:

He was a fine, wonderful judge.

Anne Milgram:

Joyce, do you guys make moonshine?

Preet Bharara:

You don’t have to answer that question.

Anne Milgram:

All right, let me ask it differently. Joyce-

Preet Bharara:

Joyce, as your lawyer, you do not have to answer that question.

Anne Milgram:

… have you ever had homemade moonshine? Have you ever tasted it? Let’s-

Joyce Vance:

I have tasted moonshine, yes.

Anne Milgram:

I’ve never had it. I’m super curious.

Joyce Vance:

I don’t think it’s a good thing. It’s about as good … Before we were married, my husband took a wine-making class and made some profoundly bad wine, and I would say this is about in that same category.

Preet Bharara:

Was it mixed with waste water in any way?

Joyce Vance:

You know, he was brewing it underneath the kitchen sink, so I always had my doubts.

Preet Bharara:

All right, so we’re not done with cases. This one I really enjoyed. There’s a gentleman, Lin Wood, who we don’t have to talk about really, who’s involved in some of these election fraud allegations, and he filed a suit pro se, as they say, which means he is acting as his own lawyer, and he was alleging some of the same conspiracy theories as Sidney Powell, who we’ve been talking about, relating to Dominion and Hugo Chavez and everything else. He filed a declaration, which is something you do in federal court under 28 USC, section 1746, which is usually phrased in a particular way. Anne, how is it usually phrased?

Anne Milgram:

It’s usually standard language that says, quote, “I declare under penalty of perjury that the foregoing is true and correct,” and that’s language from the United States Code, Section 1746.

Preet Bharara:

And people say that all the time. What did Lin Wood say?

Anne Milgram:

He said, “Pursuant to 28 United States Code 1746, I declare and verify under plenty of perjury that the”-

Preet Bharara:

Not penalty of perjury, under plenty of perjury.

Anne Milgram:

I’d like a little more. I’d like plenty.

Preet Bharara:

Which maybe makes that a true statement. And the question has arisen, was that a Freudian slip? Did he have a law clerk who was trying to goof on his boss? I don’t know. But that’s one of the all-time greats, right? “I declare and verify under plenty of perjury.” It called to mind for a lot of people, and this is maybe we’re nerding out as lawyers, but other all-time favorite typos and gaffs in legal pleadings, someone on Twitter talked about how signing a declaration under plenty of perjury beats the previous best legal typo, which was an appellate brief seeking to overturn a trial court decision that concluded … Instead of saying, “The judgment below should be reversed,” they left off an S and said, “The judgment below should be revered.”

Preet Bharara:

Then I told you guys my own favorite, and I didn’t witness this directly, but when I was a young law firm associate, there was a partner at the firm who said that he had once filed a brief that he was mortified about. There was a last minute search and replace in the brief, and so a standard term that’s often used in legal briefing is the existence of a private right of action. Under certain statutes, you have that. Due to an error by a paralegal or a young associate, not me, every place that said, “A private right of action,” was changed to, “A private night of action,” which made it a much sexier case than it was intended to be.

Anne Milgram:

It must be mortifying to have to then go see that judge.

Preet Bharara:

Because you’re going to lose. Because I don’t think you have a private night of action-

Joyce Vance:

But the judge-

Preet Bharara:

… in any statute that I’m aware of.

Joyce Vance:

You’ve really made the judge’s day, so there’s that.

Preet Bharara:

Yes. So, look, I know you guys think lawyers are boring, but we can have a little bit of fun, at least around the holidays. Can I tell you, Joyce, we have various phrases that get used in the show and the listeners come to appreciate them. I think some of them maybe have attached drinking games to them, like when Anne says extraordinary or she talks about penguins. Every time Joyce is on, we can add y’all.

Anne Milgram:

That’s right.

Preet Bharara:

We don’t say y’all too much around here.

Joyce Vance:

It’s a great all-purpose word. Maybe I can get y’all to adopt it.

Preet Bharara:

Maybe you can.

Anne Milgram:

I love it.

Preet Bharara:

It doesn’t sound inauthentic if the Indian immigrant from New Jersey says y’all?

Joyce Vance:

You know, it’s just English doesn’t really encompass that. So many languages do. So consider yourself sophisticated in thinking about translating from German or something else when you say y’all.

Preet Bharara:

Okay. Joyce, thank you for joining us.

Anne Milgram:

Thank you so much.

Joyce Vance:

Thanks for enduring me, y’all. I appreciate you having me.

Preet Bharara:

Now, you’re going overboard on the y’all. Now, I think I’ve caused you to say it more than you might’ve otherwise.

Joyce Vance:

It just proves that it’s the perfect all-purpose word, though.

Preet Bharara:

It kind of is. So is extraordinary. Well, guys-

Anne Milgram:

It’s true.

Preet Bharara:

Everyone, thank you for listening. Thanks for all your support. Have a very merry Christmas, have a great New Year, and we will talk to y’all in 2021.

Anne Milgram:

Happy holidays. Thank you, Joyce. Thanks, Preet.

Joyce Vance:

Thanks very much for having me. Happy holidays.

Preet Bharara:

Thanks. Thanks, folks.

Anne Milgram:

Take care.

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, and the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Calvin Lord, Jeff Eisenman, Chris Boylan, Sean Walsh, and Margot Maley. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.